State v. Neeley

• Decision Date: 20 August 2002
• Docket Number: No. 20109-1-III.,20109-1-III.
• Parties: STATE of Washington, Respondent, v. Phyla Jo NEELEY, Appellant.
• Court: Washington Court of Appeals

52 P.3d 539

113 Wash.App. 100

STATE of Washington, Respondent, v. Phyla Jo NEELEY, Appellant.

No. 20109-1-III.

Court of Appeals of Washington, Division 3, Panel Two.

August 20, 2002.

Bevan J. Maxey, E. Armstrong Williams, Maxey Law Offices P.S., Spokane, WA, for Appellant.

Kevin M. Korsmo, Andrew J. Metts, III, Deputy Prosecuting Attorneys, Spokane, WA, for Respondent.

BROWN, C.J.

After a failed suppression hearing challenging her arrest for possessing drug paraphernalia, which led to the discovery of cocaine, Phyla Jo Neeley was found guilty of possessing cocaine at a stipulated facts trial. We clarify the standard of review and affirm because probable cause existed to arrest.

FACTS

Spokane Police Department Officers Erickson and Kendall were on patrol when at around 2:00 a.m. they encountered Ms. Neeley's vehicle near the downtown intersection of First and Cowley, an area known for high rates of prostitution and drug activity. All the area businesses were closed. No residences exist in the area. Ms. Neeley's vehicle was conspicuous to the officers because of the circumstances.

When the officers shined a light into Ms. Neeley's car they saw someone bending over in the car, possibly trying to hide. After parking and while approaching the car, Officer Erickson saw Ms. Neeley leaning over the passenger seat and bobbing her head up and down in a strange way as if ingesting or concealing something.

As Officer Erickson got closer to the passenger side of the vehicle, he observed a small brillo pad, a small pair of scissors and a lighter. Officer Erickson had at that time three years experience as a Spokane Police Officer. Through his training and experience, Officer Erickson recognized the brillo pad, scissors and lighter as drug paraphernalia. These items were located on the seat in the exact location over which Officer Erickson had seen Ms. Neeley leaning just moments before.

Officer Erickson immediately announced probable cause to arrest Ms. Neeley for possessing drug paraphernalia. Incident to the arrest, Ms. Neeley was searched. The officers found crack cocaine in her pocket.

The State later charged Ms. Neeley with one count of possession of a controlled substance, cocaine. Ms. Neeley filed an unsuccessful motion to suppress the drug evidence seized from her person in the search incident to her arrest. Reconsideration was denied. She was found guilty after a stipulated facts trial, then appealed.

ANALYSIS

The issue is whether the trial court erred in denying Ms. Neeley's suppression motion after determining her search was incident to a lawful arrest, based upon probable cause to believe she possessed controlled substance paraphernalia. Because they have been largely cured, we do not discuss the State's procedural concerns regarding the record designated by Ms. Neeley, except for her failure to allege deficient trial court findings. We do so because we believe it helpful to clarify our standard of review.

The trial court entered 15 findings of fact on the CrR 3.6 motion. "A separate assignment of error for each finding of fact a party contends was improperly made must be included with reference to the finding by number." RAP 10.3(g). Further, when a party challenges findings of fact, he or she must include them verbatim in the brief or attach a copy of them in an appendix to the brief. RAP 10.4(c). Here, Ms. Neeley has not complied with either rule; she has not assigned error to any specific finding of fact, nor has she appended a copy of the findings to her brief. Rather, she makes a sweeping claim that the trial court's findings are unsupported by substantial evidence.

Ms. Neeley's failure to assign error to specific findings of fact may be a result of her reliance on this court's opinion in State v. Dempsey, 88 Wash.App. 918, 921, 947 P.2d 265 (1997). In Dempsey, this court stated that it reviews denial of a suppression motion "by independently evaluating the evidence to determine whether substantial evidence supports the findings and the findings support the conclusions." Dempsey, 88 Wash.App. at 921, 947 P.2d 265 (citing State v. Teran, 71 Wash.App. 668, 671, 862 P.2d 137 (1993)). But, the rule quoted in Dempsey had already been "discarded" by the Supreme Court as an "anomoly" "misappropriated" into state law by misapplication of federal law governing federal review of state court decisions. State v. Hill, 123 Wash.2d 641, 644-45, 870 P.2d 313 (1994) (citations omitted).

Rather, under Washington appellate procedure, the appellate court limits its review of findings of fact entered following a suppression motion solely to "those facts to which error has been assigned." Id. at 647, 870 P.2d 313. "Where there is substantial evidence in the record supporting the challenged facts, those facts will be binding on appeal." Id. And unchallenged findings are verities binding on appeal. Id. at 644, 870 P.2d 313. Hill abrogated the precedents upon which the Teran court relied, and Dempsey relied partly on Teran, another opinion of this court. Compare Hill, 123 Wash.2d at 644-45,

870 P.2d 313

with Dempsey, 88 Wash.App. at 921,

947 P.2d 265

and Teran, 71 Wash.App. at 671,

862 P.2d 137. Hill, not Dempsey nor Teran, controls the correct standard of review for findings of fact entered on a suppression motion.

Here, as noted above, Ms. Neeley has not assigned error to specific findings of fact. RAP 10.3(g). Ordinarily, these findings would be treated as verities on appeal. Hill, 123 Wash.2d at 644, 870 P.2d 313. However, in appropriate circumstances the appellate court will waive technical violations of the RAP where the briefing makes the nature of the challenge perfectly clear, particularly where the challenged finding can be found in the text of the brief. Daughtry v. Jet Aeration Co., 91 Wash.2d 704, 709-10, 592 P.2d 631 (1979); RAP 1.2(a). That does not appear to be the case here; we cannot discern from Ms. Neeley's briefing a specific challenge to a finding of fact, nor does she include any challenged findings in the text of her brief. Cf. Daughtry, 91 Wash.2d at 710,

592 P.2d 631 (noting "where the nature of the challenge is perfectly clear, and the challenged finding is set forth in the appellate brief," the trial court would consider the merits of the challenge).

In essence, Ms. Neeley argues the trial court's findings do not support its conclusion that the officers had probable cause to arrest her for possession of drug paraphernalia. And that argument ultimately turns on issues of law. Given the nature of Ms. Neeley's briefing, we will treat the trial court's findings of fact as unchallenged, and thus verities on appeal. Hill, 123 Wash.2d at 644, 870 P.2d 313.

Consequently, the issue turns on whether the findings of fact support the trial court's legal conclusion that the incriminating evidence was lawfully obtained. We conduct a de novo review of conclusions of law in an order pertaining to a suppression motion. State v. Mendez, 137 Wash.2d 208, 214, 970 P.2d 722 (1999). Ms. Neeley contends the evidence was not lawfully obtained because the officers lacked probable cause to arrest her and search her person incident to that arrest. Resolving this question requires application of relevant search and seizure law.

As a general rule, a warrantless search is per se unreasonable under both the Fourth Amendment of the United States Constitution and article I, section 7 of the Washington State Constitution unless the search falls within one or more specific exceptions to the warrant requirement. State v. Ross, 141 Wash.2d 304, 312, 4 P.3d 130 (2000). The burden is on the State to prove an exception to the warrant requirement applies. State v. Ladson, 138 Wash.2d 343, 349-50, 979 P.2d 833 (1999).

One well-recognized exception to the warrant requirement is a search incident to a valid custodial arrest. State v. Vrieling, 144 Wash.2d 489, 492, 28 P.3d 762 (2001); State v. McKenna, 91 Wash.App. 554, 559, 958 P.2d 1017 (1998). Here, the officers searched Ms. Neeley's person incident to her arrest for drug paraphernalia possession and found crack cocaine inside her coat pocket. Ms. Neeley contends the search was invalid because the officers lacked probable cause to arrest her.

This court recently held that it reviews a police officer's probable cause determination as not solely a question of fact, but rather a mixed question of law and fact. State v. Vasquez, 109 Wash.App. 310, 318, 34 P.3d 1255 (2001), review granted, 146 Wash.2d 1008, 51 P.3d 87 (2002). Here, where the trial court's findings of fact are unchallenged verities, the inquiry focuses on whether the findings support the conclusions of law. Hill, 123 Wash.2d at 647, 870 P.2d 313. This is a legal question reviewed de novo. Vasquez, 109 Wash.App. at 318, 34 P.3d 1255.

An officer must have probable cause to arrest before commencing a search incident thereto, "which is also to say that the arrest cannot be justified by the fruits of the search." McKenna, 91 Wash.App. at 560, 958 P.2d 1017 (footnotes omitted). "Probable cause `boils down, in criminal situations, to a simple determination of whether the relevant official, police or judicial, could reasonably believe that the person to be arrested has committed the crime.'" State v. Fisher, 145 Wash.2d 209, 220 n. 47, 35 P.3d 366 (2001) (quoting State v. Klinker, 85 Wash.2d 509, 521, 537 P.2d 268 (1975)). Probable cause does not require the officer to have evidence sufficient to establish guilt beyond a reasonable doubt. State v. Bellows, 72 Wash.2d 264, 266, 432 P.2d 654 (1967). Moreover, this court's probable cause determination is grounded on a practical, nontechnical review of the total facts of the case under consideration. State v. Gillenwater, 96 Wash.App. 667, 671, 980 P.2d 318 (1999), review denied, 140 Wash.2d 1004, 999 P.2d 1262 (2000).

Here, the officers arrested Ms. Neeley for possessing drug paraphernalia. The trial court correctly concluded possession of drug paraphernalia...