State v. McAlpin
| Decision Date | 21 February 1984 |
| Docket Number | No. 11964-8-I,11964-8-I |
| Citation | 36 Wn.App. 707,677 P.2d 185 |
| Parties | STATE of Washington, Respondent, v. Douglas L. McALPIN, Appellant. |
| Court | Washington Court of Appeals |
Demco & Zaetsch & Kemp, Eric H. Zaetsch, Seattle, for appellant.
Seth R. Dawson, Snohomish County Pros. Atty., R. Scott Bowen, Deputy Pros. Atty., Everett, for respondent.
Douglas L. McAlpin appeals his felony convictions on five counts of possession of, and possession with intent to deliver, controlled substances which consisted of cocaine, marijuana, and quaaludes. The judgment and sentence was entered following a combined suppression hearing and a stipulated, expedited trial to the court.
McAlpin's appeal does not challenge the sufficiency of the evidence to uphold his convictions. His claims of error are all directed to the trial court's refusal to suppress certain evidence seized in two separate searches--one of his home on December 12, 1980 and the other of his briefcase on March 2, 1981.
The trial court's detailed findings of fact entered after hearing extensive testimony presented by both parties at the suppression hearings may be summarized as follows: 1
Search and Seizure of Cocaine, Marijuana and Amphetamines at
McAlpin's Home (Counts I to IV)
McAlpin awoke in the bedroom of his Lynnwood home in the early morning of December 12, 1980 to discover that his 25 year-old wife had stopped breathing. Unable to resuscitate her, he telephoned for medical assistance. Snohomish County authorities dispatched firemen Gibler and Westerman from their nearby station.
Deputy Sheriff Nichols and a reserve deputy named O'Neill, both qualified emergency medical technicians, overheard the dispatch and responded to the call believing they would be able to assist.
McAlpin rushed the firemen into the house when they arrived at 4:57 a.m. The trial court found that Sheriff's deputies Nichols and O'Neill also arrived at 4:57 a.m. and, with McAlpin's permission to enter, followed the firemen into the house. By the time deputies Nichols and O'Neill entered the bedroom, fireman Gibler had pulled Mrs. McAlpin off the bed and onto the floor to commence cardiopulmonary resuscitation (C.P.R.). In doing so, he cut his hand on a broken glass and spread some blood on the body.
Nichols escorted McAlpin from the small room at fireman Gibler's request and, without advising him of his rights, questioned McAlpin about the circumstances of his wife's condition. Nichols testified that this was to facilitate the firemen's lifesaving activities.
Within several minutes, paramedics arrived and relieved the firemen who had continued C.P.R., although they had discerned no vital signs. Shortly thereafter, at 5:07 a.m., the paramedics determined that Mrs. McAlpin was beyond resuscitation and abandoned their efforts. The coroner later determined the time of death to have been around 2:30 a.m.
While the firemen and paramedics were responding to the apparent medical emergency, a closet curtain near the body was accidentally knocked down or pushed aside. This revealed firearms and controlled substances. By the time deputy Nichols re-entered the room and saw the contraband, the paramedics had abandoned all aid. Seeing the drugs and the dead body with blood on it, Nichols assumed that he was at the scene of a crime and notified homicide Detective Ward.
Ward arrived at about 5:50 a.m. and, with what the trial court found to be McAlpin's implied consent, was escorted in by another officer who was already on the scene. Ward proceeded to the bedroom, saw the body and the apparent contraband in the closet, and discovered on top of the disheveled dresser a small, ceramic pipe and a large baggie containing marijuana seeds.
Detective Ward returned to the living room, advised McAlpin of his rights, and then asked McAlpin for his permission to search the house. McAlpin refused consent.
Snohomish County Superior Court Judge Britt issued a search warrant for the entire house based upon Detective Ward's affidavit which listed only the items in plain view on top of the dresser consisting of the seeds and the pipe.
The sequentially numbered photographs admitted into evidence indicated that the officers conducted a more thorough search of the premises before Ward returned with the warrant.
The trial judge suppressed all evidence discovered during this interim search. He did not suppress the evidence discovered in the closet, however, on the basis that it fell within the plain view exception to the warrant requirement.
The trial court found that the "only material disputed fact is defendant's contention that a cardboard box or boxes containing cocaine had been located under the bed rather than in the closet." As to this disputed fact, the court found "that the cocaine was in the closet when discovered after the curtain over the closet had been accidentally or inadvertently pushed aside during the effort to save Mrs. McAlpin's life."
Based upon this evidence, McAlpin was found guilty of possession of cocaine and marijuana with intent to deliver (counts I and II respectively); and guilty of possession of more than 40 grams of marijuana (count III). The trial court dismissed count IV--possession of amphetamines with intent to deliver--after suppressing the introduction of the amphetamines as the fruits of an illegal search.
Accident (Counts V and VI)
In a subsequent but unrelated incident, McAlpin caused a four-car accident at a major intersection in Lynnwood during the noon hour on March 2, 1981. Unable to extricate his truck, he grabbed his satchel-type briefcase and fled to a restaurant about 40 yards away.
When Lynnwood Police Officer Huntley arrived, participants and witnesses relayed this information to him and described McAlpin, whom they perceived as being "high" on alcohol or drugs.
Huntley proceeded to the restaurant where he confronted McAlpin who also appeared to Huntley to be under the influence of drugs or alcohol. At this time Huntley also noticed that the people in the restaurant appeared fearful and were trying to get his attention.
As they were leaving the restaurant to return to the scene of the accident, Officer Huntley asked McAlpin if he had forgotten his briefcase. Restaurant patrons, who appeared considerably distressed and agitated, exclaimed that the satchel was "over there, it's over there." McAlpin showed considerable alarm and rushed for the briefcase. Huntley intercepted McAlpin. The ensuing struggle over the briefcase resulted in McAlpin being handcuffed, frisked for weapons, read his rights, and placed in the back seat of the police car. Huntley placed the satchel in the front seat.
A radio dispatch from the police station then revealed to Huntley that a restaurant employee had called the police to tell them that McAlpin had been carrying a gun in a holster on his person and waving it about in the restaurant. Huntley believed it was immediately necessary to locate the gun to prevent undue risk to the public and officers present. He easily pushed back the locked flap, which covered one-third of the open-ended top of the heavy, satchel-type briefcase, looked in and saw a large baggie of marijuana, and then as the trial court found,
reached in, felt what appeared to be a gun, pulled the gun out and when he pulled the gun out apparently a roll of money came out with it. At the point the gun was secured the satchel was not searched further until a search warrant had been obtained.
CrR 3.5 hearing, Clerks Papers, at 74. The subsequent search pursuant to the warrant revealed quaaludes.
Still concerned about the possible existence of another gun, Huntley refrisked McAlpin and one of the other two officers at the scene searched the restaurant.
After concluding the accident investigation, Huntley formally placed McAlpin under arrest.
The trial judge admitted all evidence discovered in the briefcase and found McAlpin guilty of possession of quaaludes (count VI) and possession of more than 40 grams of marijuana with intent to deliver (count V).
McAlpin assigns several errors to the trial court's resolution of the issues involved in the search and seizure of contraband in his home. He contends that (1) the evidence does not support the trial court's conclusion that all elements of the "plain view" exception to the warrant requirement were met; (2) Detective Ward's affidavit for a search warrant did not establish probable cause; and (3) Detective Ward's willfully excluding from the affidavit evidence observed in the closet rendered the affidavit fatally defective.
We first address McAlpin's contention that the elements of the "plain view" exception to the Fourth Amendment were not established by the evidence presented.
Because the trial court heard extensive oral testimony from many witnesses, including McAlpin, at the suppression hearing, we must give deference to the trial court's findings of fact and not substitute our judgment for that of the trial court, nor weigh the evidence or credibility of the witnesses. Davis v. Department of Labor & Indus., 94 Wash.2d 119, 124, 615 P.2d 1279 (1980). We will not, however, blindly accept the findings of fact as verities, State v. Hoffman, 64 Wash.2d 445, 451, 392 P.2d 237 (1964); there must be sufficient evidence from which a rational trier of fact could reasonably conclude beyond a reasonable doubt that the verdict was correct. State v. Green, 94 Wash.2d 216, 616 P.2d 628 (1980). As noted above, we conclude that there was sufficient and substantial evidence to support the trial court's findings of fact.
The "plain view" exception to the Fourth Amendment's warrant requirement has three elements: (1) a prior justification for the police intrusion; (2) an inadvertent discovery of incriminating evidence; and (3) the immediate knowledge by the police that the...
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