State v. Moses, Sean Albert Speedy
| Decision Date | 27 June 2022 |
| Docket Number | 82734-1-I |
| Parties | STATE OF WASHINGTON, Appellant v. MOSES, SEAN ALBERT SPEEDY, DOB: 04/04/1988, Respondent. |
| Court | Washington Court of Appeals |
he State appeals a trial court ruling suppressing a handgun seized by police during a search for controlled substances and drug paraphernalia authorized by a warrant. The trial court determined probable cause did not support the search warrant because our Supreme Court later voided the crime of possession of controlled substances in State v Blake, 197 Wn.2d 170, 481 P.3d 521 (2021). The court also found the two crimes were so intertwined that it could not sever the warrant and dismissed the charge of unlawful possession of a firearm. We conclude that probable cause supported the search for controlled substances. Probable cause also supported the search for drug paraphernalia and the warrant was severable. We reverse the order dismissing the charge of unlawful possession of a firearm and remand.
Arlington Police Department officers contacted Sean Albert Speedy Moses on February 11, 2017 while investigating a suspicious SUV[1] near a known drug house. Officer Molly Ingram first saw Moses sitting in the front passenger seat of the SUV with a backpack on the floor between his feet. Moses told Officer Ingram that his name was "Gregory W. Moses" and that his birthdate was December 22, 1985. She ran a records check and confirmed that was not his true name or birthdate. When Officer Ingram returned to the SUV, she saw that someone had moved the backpack into the back seat. Moses admitted he gave her a false name and Officer Ingram arrested him on an outstanding felony warrant. While handcuffing Moses, Officer Ingram saw an open wound on his forearm that Moses said was from injecting heroin.
Officer Ingram continued questioning Moses and learned that he and the driver of the SUV, Thomas C. Harris, often used drugs and "mostly" smoked heroin. When Harris got out of the SUV, Officer Ingram saw a plastic tube with burnt residue on the driver's seat, a device known as a "tooter." Officer Ingram recognized the device as "drug paraphernalia used to smoke illegal narcotics." She then deployed K-9 Tara, a drug detection canine officer, who alerted to the presence of drugs at both the front passenger and driver's side doors of the SUV. Officer Ingram impounded the vehicle and applied for a warrant to search it.
Officer Ingram submitted an affidavit in support of her request for a warrant. From this, a judge determined that probable cause existed for the crimes of "VUCSA and PDP."[2] The judge issued a warrant authorizing a search of the SUV for:
Illegal drugs including but not limited to heroin methamphetamine, drug paraphernalia including tin foil smoking devices, and other items used to ingest illegal drugs, measuring devices including scales, letters or items showing ownership or occupancy of the vehicle, all locked and unlocked containers, all drug proceeds, ledgers showing drug activity.
While searching the SUV, officers found a loaded Ruger .45-caliber handgun in the backpack Officer Ingram first saw between Moses' feet. Officers also found paperwork belonging to Moses in the backpack. Because Moses had a prior felony conviction, on February 5, 2018, the State charged him with one count of unlawful possession of a firearm in the first degree, committed while on community custody. On February 27 2020, the State added one count of criminal impersonation in the first degree, also committed while on community custody, because Moses first gave Officer Ingram a false name and birthdate.[3]
In April 2021, the defense moved to suppress the firearm evidence. Moses contended that the warrant lacked probable cause because it authorized a search for evidence of possession of controlled substances under former RCW 69.50.4013, a crime the Washington Supreme Court had recently found unconstitutional in Blake.[4] The State argued the Supreme Court's Blake decision was not germane to the sufficiency of the probable cause determination made back in 2017. Alternatively, the State claimed that standing alone, probable cause to search for evidence of unlawful use or possession of drug paraphernalia supported the warrant.
In an oral ruling, the trial court agreed with Moses that Blake applied retroactively and rendered the crime of possession of a controlled substance unconstitutional and void. And because the State could not prosecute or convict Moses for that offense, the trial court concluded it could not be proper grounds for issuing a search warrant. The court also determined that the crimes of possession of a controlled substance and possession or use of drug paraphernalia were so "intertwined" that it could not sever the warrant's deficient parts. The State asked the trial court to reconsider its ruling, but the court denied the motion in an order setting forth written findings of fact and conclusions of law. The trial court suppressed the firearm evidence and dismissed the charge without prejudice.[5]
The State appeals.
The State contends the trial court erred in suppressing the handgun officers found while searching the SUV because a lawfully issued warrant supported by probable cause authorized the search. In the alternative, the State argues that probable cause supported searching for evidence of unlawful possession or use of drug paraphernalia, which would have led police to the same firearm evidence. We agree.
We review the issuance of a search warrant for abuse of discretion, but we review probable cause determinations de novo. State v. Remboldt, 64 Wn.App. 505, 509, 827 P.2d 282 (1992); State v Chamberlin, 161 Wn.2d 30, 40-41, 162 P.3d 389 (2007). We evaluate search warrants in a commonsense, practical manner and not in a hypertechnical sense. State v. Higgs, 177 Wn.App. 414, 426, 311 P.3d 1266 (2013).
The Fourth Amendment to the United States Constitution provides that "no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Similarly, article I, section 7 of the Washington Constitution provides that "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law."
Probable cause supports a search warrant where the officer's affidavit sets forth facts sufficient for a reasonable person to conclude the defendant is involved in criminal activity. State v. Huft, 106 Wn.2d 206, 209, 720 P.2d 838 (1986); State v. J-R Distribs. Inc., 111 Wn.2d 764, 774, 765 P.2d 281 (1988). In examining a probable cause determination, the only information we consider is what was before the issuing judicial officer. Remboldt, 64 Wn.App. at 509. And we generally resolve any doubts over the existence of probable cause in favor of issuing the search warrant. State v. Vickers, 148 Wn.2d 91, 108-09, 59 P.3d 58 (2002).
Moses contends that our Supreme Court's 2021 decision in Blake, which declared the portion of former RCW 69.50.4013 criminalizing the simple possession of a controlled substance as unconstitutional, usurped the determination of probable cause supporting the warrant to search for evidence of that crime in his 2017 case. But a later determination that a statute is unconstitutional does not necessarily invalidate an earlier finding of probable cause to believe that a person violated the statute. Michigan v. DeFillippo, 443 U.S. 31, 37, 99 S.Ct 2627, 61 L.Ed.2d 343 (1979). This is true unless the law is "so grossly and flagrantly unconstitutional that any person of reasonable prudence would be bound to see its flaws." Id. at 38[6]
In DeFillippo, police arrested a man for violating a city ordinance criminalizing the refusal to produce evidence of identity when requested by an officer. 443 U.S. at 33-34. During a search incident to the arrest, officers discovered illegal drugs. Id. at 34. DeFillippo moved to suppress the drug evidence, challenging the constitutionality of the stop-and-identify ordinance. Id. The appellate court voided the ordinance as unconstitutionally vague and suppressed the drug evidence because "both the arrest and the search were invalid." Id.
The United States Supreme Court reversed, concluding the officers reasonably relied on "a presumptively valid ordinance" when determining whether sufficient facts existed to support probable cause that DeFillippo violated its terms. DeFillippo, 443 U.S. at 40, 37. That the statute later became invalid did not undermine DeFillippo's arrest because a determination of probable cause "does not depend on whether the suspect actually committed a crime." Id. at 36. Instead, probable cause turns on whether a reasonable officer believes a person has committed or is committing a crime; "the mere fact that the suspect is later acquitted of the offense for which he is arrested is irrelevant to the validity of the arrest." Id.
The Court distinguished the lawfulness of a search based on probable cause from one grounded in a rule that authorizes a search under circumstances that would not otherwise satisfy traditional warrant and probable cause requirements and later declared unconstitutional. DeFillippo, 443 U.S. at 39. It pointed to Almeida-Sanchez v. United States 413 U.S. 266, 268, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973) (quoting 8 U.S.C. § 1357(a)(3)), where the Court determined that a federal regulation authorizing the United States Border Patrol to search any car without probable cause or a warrant within 100 miles of the border violated the Fourth Amendment because 100 miles was not a" 'reasonable distance'" under the federal statute. Id. The DeFillippo Court...
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