State v. McFadden

• Decision Date: 25 November 1991
• Docket Number: No. 25417-1-I,25417-1-I
• Citation: 63 Wn.App. 441,820 P.2d 53
• Parties: STATE of Washington, Respondent, v. James M. McFADDEN, Appellant.
• Court: Washington Court of Appeals

Page 441

63 Wn.App. 441

820 P.2d 53

STATE of Washington, Respondent, v. James M. McFADDEN, Appellant.

No. 25417-1-I.

Court of Appeals of Washington Division 1.

Nov. 25, 1991.

Washington Appellate Defender, Colleen O'Connor, Seattle, for appellant.

Norm Maleng, King County Pros. Atty., Mark Stockdale, Seattle, for respondent.

FORREST, Judge.

James McFadden appeals his conviction of two counts of possession of a controlled substance with intent to deliver. McFadden argues that the trial court erred in allowing admission of evidence seized during a search of his van, and in allowing rebuttal testimony regarding his involvement in a drug transaction which was subsequent to the transaction in issue. McFadden further asserts that the failure of the information and the jury instructions to earmark which facts applied to which of two identical counts denied him of his constitutional right to a unanimous jury verdict and subjected him to double jeopardy.

On April 1, 1988, McFadden entered an apartment that was under surveillance by police detectives. A police informant and the apartment's resident were waiting inside for a person from whom they planned to buy cocaine. The detectives had a search warrant for the apartment.

After a few moments, the informant activated his police transmitter and the police detectives entered the apartment. They saw McFadden standing over the toilet dumping the contents of a plastic bag into the toilet. The bag was retrieved and found to contain 5.5 grams of cocaine.

The police detectives proceeded to search the van in which McFadden arrived at the scene. The detectives testified that they decided to seize the vehicle based on the fact that it was used to facilitate a drug transaction. They performed a cursory inventory search of the van, during which 83.9 grams of cocaine were found in an unlocked tool box, along with other drug paraphernalia.

McFadden testified at trial that he was in possession of the cocaine in the apartment, which he intended to buy. However, he asserted that he was not dealing cocaine, had never dealt cocaine, and that the cocaine in the van had been put there without his knowledge. On rebuttal, the prosecution called a police detective to testify that on July 12, 1989 he had seen a police informant purchase cocaine from McFadden in a tavern.

This appeal presents three issues:

1. Was the inventory search of appellant's van following seizure pursuant to the forfeiture statute proper?

2. Was the admission of rebuttal evidence of appellant's participation in a subsequent cocaine transaction in error?

3. Was appellant denied his constitutional right to a unanimous jury verdict or placed in double jeopardy due to the information and the jury instruction's failure to make factual distinctions between identical counts?

SEARCH AND SEIZURE ISSUE

McFadden argues that the admission into evidence of the drugs found in the search following the warrantless seizure of his motor vehicle pursuant to the state forfeiture statute ¹ violated both the fourth amendment to the United States Constitution and article 1, § 7 of our constitution. McFadden's Fourth Amendment argument is without merit. United States v. Spetz, ² on which he relies, has been explicitly overruled by the Ninth Circuit in United States v. Bagley, ³ which held that probable cause to believe that a motor vehicle was used in transporting contraband justifies a warrantless search and seizure of a parked automobile. This court recently followed Bagley in holding that a similar warrantless seizure of a parked automobile by federal officers pursuant to the federal statute was proper under federal law. ⁴ None of the Washington cases considering the Washington statute have found it to violate the Fourth Amendment. ⁵

In his opening brief McFadden failed to assert a compelling reason to undertake an independent state constitutional analysis, such as the considerations set forth in State v. Gunwall. ⁶ Normally, this would be an adequate reason for us to decline to address the issue. ⁷ However, in State v. Gwinner ⁸ this court suggested that the state constitution might require a different result on the search issue. ⁹ Searches and seizures of motor vehicles used in drug transactions are an everyday occurrence and it is important that the law provide clear guidelines to law enforcement. Accordingly, after receiving additional briefing from both parties on the state constitutional issue, we now address McFadden's contention.

It is settled law that the Washington constitution article 1, § 7 provides greater protection than does the Fourth Amendment. ¹⁰ The issue here is whether it provides greater protection on these facts. In view of the Washington cases on this issue we follow State v. Boland ¹¹ and find it necessary to examine only two of the factors set forth in State v. Gunwall; ¹² the fourth factor, pre-existing state law, and the sixth factor, a matter of particular state interest or local concern.

Regarding pre-existing state law, in State v. Patterson our supreme court quoted with approval the following language of the Oregon Supreme Court:

We nevertheless hold that any search of an automobile that was parked, immobile and unoccupied at the time the police first encountered it in connection with the investigation of a crime must be authorized by a warrant issued by a magistrate or, alternatively, the prosecution must demonstrate that exigent circumstances other than the potential mobility of the automobile exist.

State v. Patterson, 112 Wash.2d 731, 734, 774 P.2d 10 (1989) (quoting State v. Kock, 302 Or. 29, 33, 725 P.2d 1285 (1986)). The Supreme Court summarized the theme underlying warrantless automobile searches in Washington as a balancing of the societal need for a search without a warrant against the privacy interests protected by article 1, § 7 of our constitution. Patterson, 112 Wash.2d at 734, 774 P.2d 10. This holding and language in conjunction with the Gwinner court's interpretation thereof strongly supports, if it does not mandate, an independent state analysis of the issue McFadden presents.

In the absence of the foregoing, we would not find that the sixth Gunwall factor, particular state interest or local concern, was satisfied. Adoption by the Washington State Legislature of a uniform narcotics control statute substantially identical to the federal legislation is a clear statement that the matter is not one of special local concern but one as to which national and uniform policies are desirable.

Turning to the merits, McFadden asserts that under Washington law a warrant is required to search a parked automobile unless one of three exceptions apply: (1) lawful impoundment of the vehicle, ¹³ (2) exigent circumstances exist, ¹⁴ or (3) the search is incident to arrest. ¹⁵ At the suppression hearing the State did not attempt to justify the search or seizure of the van on any of these bases. ¹⁶ Moreover, McFadden is correct in asserting that the search and seizure of his van pursuant to RCW 69.50.505(b)(4) does not fall within any of these exceptions.

McFadden does not argue that the seizure of the van was unconstitutional and we express no opinion thereon. Rather, he addresses his state constitutional argument solely to the search following the seizure. While this is not an impound case, we think that the law as to an inventory search following a lawful impound provides guidance. Inventories following lawful impound are justified. ¹⁷ The reasons which justify an inventory search following impoundment are even more compelling when the search follows a seizure pursuant to RCW 69.50.505. In a normal impound situation the expectation is that the owner will reclaim his vehicle. The contrary is the case in seizure of a vehicle used to facilitate drug transactions, where the expectation is that the vehicle will be forfeited. Although the vehicle is to be forfeited, there is no right to forfeit the contents, which must be returned to the owner thereof. ¹⁸ Balancing the societal need for the search against the privacy interest provided by the constitution, ¹⁹ we find that the search was valid.

Moreover, as stated in Lowery v. Nelson, ²⁰ some federal courts have ruled that the "government's right to seize and forfeit a vehicle vests at the time of the illegal conduct." ²¹ Under this reasoning no warrant is required to seize and search what can be considered the government's own property. ²²

We hold that a motor vehicle seized pursuant to RCW 69.50.505 on probable cause that it is used to facilitate a drug transaction is subject to a valid inventory search and evidence found in the course of such a search is admissible at trial.

ER 404 ISSUE

McFadden assigns error to the admission of rebuttal testimony regarding his involvement in an unrelated drug transaction with a police informant. The evidence was admitted after an unrecorded sidebar conference. This case illustrates the undesirability of such practice since we do not have the benefit of the arguments made to the court or the court's reasoning in allowing admission of the testimony. It is the obligation of the objecting party to inform the court of the precise grounds for objection. Failure to do so may result in the admission being sustained on appeal. ²³ An evidentiary ruling that would be error in face of a proper objection, may be upheld in absence of a showing on the record of a specific objection. Thus, sidebar colloquy such as occurred here may risk loss of an appealable error. However, in this case the issue is sufficiently clear that we can review the claimed error even in absence of a proper record.

McFadden argues that admission of the testimony regarding the unrelated drug transaction was improper under ER 404(b), ²⁴ in that it was for no other purpose than to show bad character. However, because of McFadden's testimony as to his own good character, this is not a 404(b) issue but a 404(a)(1) issue:

(a) Character...