State v. Marcum

• Decision Date: 27 April 2009
• Docket Number: No. 61428-2-I.,61428-2-I.
• Citation: 205 P.3d 969,149 Wn. App. 894
• Parties: STATE of Washington, Appellant, v. Jeffrey C. MARCUM, Respondent.
• Court: Washington Court of Appeals

205 P.3d 969

149 Wn. App. 894

STATE of Washington, Appellant, v. Jeffrey C. MARCUM, Respondent.

No. 61428-2-I.

Court of Appeals of Washington, Division 1.

April 27, 2009.

Mary K. Webber, Snohomish County Prosecutor's Office, Everett, WA, for Appellant.

Rafael Schwimmer, Schwimmer First LLP, Everett, WA, for Respondent.

DWYER, A.C.J.

¶ 1 In this drug possession prosecution, the trial court suppressed physical evidence of four ounces of marijuana found in Jeffrey Marcum's truck, as well as his admissions that he possessed and had recently used marijuana. The court then dismissed the charges against him. The State appeals. Because the trial court misapplied the law in determining whether an informant who implicated Marcum in drug activity was sufficiently reliable so as to entitle the police to act upon the information that the informant supplied, we hold that the court erred by suppressing the physical evidence based on its conclusion that the police initially detained Marcum without a reasonable suspicion that he possessed marijuana. Because the court also misapplied the law in ruling that Marcum was in custodial detention during a period that he was actually subject to a lawful investigative detention, we further hold that the court erred by suppressing Marcum's admissions based on its conclusion that those statements were unlawfully obtained prior to Miranda¹ warnings having been given. Accordingly, we reverse both the suppression orders and the order dismissing the charges against Marcum.

I

¶ 2 Neither party assigns error to the trial court's findings of fact. Thus, they are verities on appeal. State v. Broadaway, 133 Wash.2d 118, 131, 942 P.2d 363 (1997).

¶ 3 An informant agreed to assist Detective Cyrus O'Bryant in obtaining information about three drug dealers in exchange for Detective O'Bryant not pursuing criminal charges against him based on an unrelated incident.² By December 2006, the informant had provided Detective O'Bryant with two potential targets and participated in controlled buys of narcotics from those targets. The information that the informant had provided to Detective O'Bryant during those investigations had been accurate, although Detective O'Bryant had not yet arrested anyone based on it. By providing one more tip, the informant fulfilled his contract with Detective O'Bryant.

¶ 4 The informant's final tip resulted in the arrest and prosecution that is the subject of this case. Around December 1, 2006, the informant contacted Detective O'Bryant, telling him that he had known Marcum for some time, and had purchased drugs from him before. The informant told Detective O'Bryant Marcum's name and described Marcum, stating his height, weight, and the fact that he was balding. The informant also gave Detective O'Bryant directions to Marcum's home and described Marcum's truck— a green Ford Ranger with a canopy. Detective O'Bryant confirmed through the county assessor's website that a "Jeffrey Marcum" lived at the address provided by the informant.

¶ 5 On December 14, 2006, Detective O'Bryant and other police officers devised a plan to catch Marcum dealing marijuana. The plan called for the informant to telephone Marcum and arrange to buy marijuana from him. Once Marcum left his home to make the deal, detectives would detain him while a canine officer used a dog to sniff the outside of his truck for the scent of drugs. Other officers would be ready to provide assistance.

¶ 6 The operation went as planned. The previous night, the informant had telephoned Marcum and arranged to purchase a quarter pound of marijuana from him. During that conversation, Marcum told the informant that he would have the marijuana ready the following day.

¶ 7 The next day, after the police officers had taken their positions, Detective O'Bryant directed the informant to telephone Marcum with the message that he was ready to conclude the deal. A few minutes after the informant placed the call to Marcum, the officers observed a green Ford Ranger with a canopy leave Marcum's home.

¶ 8 At Detective O'Bryant's direction, uniformed officers followed the truck in their patrol car and initiated a traffic stop. Marcum pulled his truck into a Fred Meyer store parking lot, and several police vehicles pulled up behind him, blocking his truck into a parking spot. Detective Brock Haner (a uniformed officer) then approached the truck. Marcum was in the driver's seat.

¶ 9 Detective Haner told Marcum that he had been speeding. Marcum had, in fact, been driving under the speed limit, and he told Detective Haner as much. Nevertheless, Detective Haner requested Marcum's driver's license and vehicle registration (which Marcum provided) and returned to his patrol car, where he performed his usual checks on the documents. He then radioed Detective O'Bryant, who in turn radioed the canine officer and informed Detective Haner that that officer was on his way. Detective Haner then exited his patrol car and walked back to Marcum's truck.

¶ 10 Detective Haner testified that as he returned to Marcum's truck and began speaking with Marcum, he "detected an odor" emanating from the open driver's-side window, which he "was able to identify as marijuana." He then asked Marcum why he "was smelling marijuana in the vehicle." Marcum responded that he did not know why Detective Haner was smelling marijuana. Detective Haner asked if someone might have left marijuana in the truck. Marcum responded that he did not know. Haner then inquired if Marcum smoked marijuana. Marcum responded that he did. Detective Haner then asked when the last time was that Marcum had done so. Marcum responded that he had smoked marijuana that morning. Detective Haner asked him if he was wearing the same clothes he had been wearing when he had smoked marijuana that morning. Marcum responded that he was. Detective Haner asked if perhaps that was why he was smelling marijuana. Marcum responded that it was possible.

¶ 11 At this point, Detective Haner directed Marcum to exit the truck. According to Detective Haner's testimony, he did so because he "wanted to differentiate the odor, make sure if it was his person, not the car." Detective Haner testified that he "didn't have a reason to arrest him for the odor, if it was off his person." Thus, Detective Haner "wanted to separate him from what I thought was the odor coming from the car." Detective Haner then had Marcum stand approximately 15 feet from the truck, where he smelled him. He detected no odor of marijuana. Detective Haner then told Marcum, "the jig is up" and, "I know it's in the car."

¶ 12 There was varying testimony as to what occurred next. Detective Haner testified that he then arrested Marcum and searched Marcum's truck, after which the canine officer arrived. However, both Detective O'Bryant and Marcum testified—and the trial court found—that what in fact occurred next was the arrival of the canine officer. The officer arrived and had the dog sniff around Marcum's truck, at which point the dog indicated that drugs were present within. When this occurred, Marcum stated, without prompting, "You've got me. I have drugs," or something similar.

¶ 13 The police officers then placed Marcum in Detective Haner's patrol car, searched Marcum's truck, and discovered four ounces of marijuana in a small cooler on the front passenger seat. Marcum was then told that he was under arrest, given Miranda warnings, and taken to jail. Both en route and while at the jail, Marcum made additional incriminating statements.

¶ 14 Pursuant to CrR 3.5 and CrR 3.6, Marcum moved to suppress the physical evidence obtained by the police, as well as his incriminating statements. The trial court suppressed both, ruling that (1) "[t]he confidential informant's tip lacked sufficient indicia of reliability to justify the defendant's stop on suspicion that the defendant possessed a controlled substance," and (2) "[b]ecause the defendant was not advised of his Miranda Rights in a timely fashion, his statements to the investigating officers should be suppressed."

¶ 15 According to the trial court, the police detectives' observations that corroborated the informant's tip—Marcum's home address, appearance, vehicle make, and the timing of his exit from his home—did nothing to confirm the informant's reliability because those observations merely consisted of "innocuous information." The court also ruled that Marcum was subject to custodial interrogation from the inception of the traffic stop because he "could not possibly have left the scene in his vehicle" and because reasonable persons in his position would not have felt "that they were free to leave."

¶ 16 Based on these rulings, the court entered the following conclusions of law:

1. The physical evidence and the Defendant's statements made before and after he was advised of his Miranda Warnings are suppressed because his initial detention was illegal given that the arresting officers lacked sufficient information to justify their Terry stop at the Fred Meyer's parking lot.

2. In addition, the Defendant's oral and written statements are suppressed because they are the product of non-Mirandized statements given by the defendant while surrounded by police vehicles in the back of a parking lot and in detention tantamount to a custodial interrogation.

Based on these legal conclusions, the court determined that insufficient evidence existed to prosecute Marcum for the charged offense and ordered the charges against him dismissed.

II

¶ 17 The State primarily contends on appeal that the trial court misapplied the law when it ruled that the police did not stop Marcum based on a reasonable suspicion that he was engaged in illegal conduct.³ According to the State, the court erred in two ways: (1) by ruling that the confidential informant's history of providing accurate information to the police, combined with his motivation for telling the truth, was insufficient to provide a basis to believe...