State v. O'NEILL

• Court: Washington Court of Appeals
• Writing for the Court: KENNEDY, J.
• Citation: State v. O'NEILL, 17 P.3d 682, 104 Wash. App. 850 (Wash. App. 2001)
• Decision Date: 12 February 2001
• Docket Number: No. 45163-4-I.
• Parties: STATE of Washington, Appellant, v. Matthew Glynn O'NEILL, Respondent.

17 P.3d 682

104 Wash. App. 850

STATE of Washington, Appellant, v. Matthew Glynn O'NEILL, Respondent.

No. 45163-4-I.

Court of Appeals of Washington, Division 1.

February 12, 2001.

Dana M. Nelson, Seattle, for appellant.

Rosemary Hawkins Kaholokula, Bellingham, for respondent.

KENNEDY, J.

A police officer approached a parked car in the parking lot of a closed supermarket in the early-morning hours, and asked the man sitting in the driver's seat for identification. The man, who police later determined to be Matthew Glynn O'Neill, claimed he had no identification, admitted that he had been driving on a suspended driver's license, and gave the officer a false name. Suspecting that O'Neill was not who he claimed to be, the officer then asked him to step out of the car for a pat-down search for identification. As O'Neill was stepping out of the car, the officer saw on the floorboard of the car a spoon containing a granular substance, which the officer, based on training and experience, immediately recognized as narcotics paraphernalia, i.e., a "cook spoon." The officer searched the car, discovered a baggie filled with cocaine and arrested the man. Based on State v. Markgraf, 59 Wash.App. 509, 513-14, 798 P.2d 1180 (1990), the trial court concluded that the officer's initial request for identification—which the officer made absent any articulable suspicion that O'Neill was involved in criminal activity—violated article 1, section 7 of the Washington Constitution. As a result, the court suppressed the cocaine as fruit of the poisonous tree. The State appeals this ruling, arguing that the trial court misinterpreted Markgraf. We conclude that the trial court properly interpreted Markgraf, but contrary to the ruling in that case, we hold that the officer did not seize O'Neill merely by asking him for identification. A seizure did occur when the officer asked O'Neill to step out of the car for a pat-down search for identification. This seizure was reasonable because of the nexus with the admitted criminal activity of driving on a suspended license and the need to properly identify O'Neill; moreover the officer had probable cause to arrest O'Neill for driving on a suspended license. When O'Neill stepped out of the car, the officer saw the cook spoon in plain view and immediately recognized the incriminating nature of this evidence. Objectively measured, the officer had probable cause to arrest O'Neill at that point for possession of a controlled substance, i.e., the residue on the spoon. Although the officer did not place O'Neill under formal arrest until after the search of the vehicle, the arrest and search were reasonably contemporaneous. Thus, the search did not violate article 1, section 7 of the Washington Constitution, because it was incident to arrest. We therefore reverse the trial court's order suppressing the cocaine.

FACTS

At approximately 1:15 a.m. on June 7, 1999, Bellingham Police Sergeant Terry West drove by a closed supermarket that had been the target of recent burglaries and noticed a car with fogged windows parked in the supermarket's parking lot near a telephone booth. He pulled up approximately six to eight feet behind the car, illuminated it with a spotlight, and entered the car's license plate number into the police computer. After learning that the car recently had been involved in two drug offenses, Sergeant West approached the car but did not activate his emergency lights and did not draw his weapon. Sergeant West asked the man in the driver's seat of the car what he was doing parked at a closed business at that hour of the morning. The man, who police later learned was Matthew Glynn O'Neill, told Sergeant West that he had driven the car from Birch Bay and stopped to use the nearby payphone to call a friend. O'Neill explained that he was still there because his car would not start.

After approximately one minute of conversation with O'Neill, Sergeant West concluded that "[t]here was nothing to indicate that a crime was going on." Nevertheless, Sergeant West asked O'Neill for identification. O'Neill informed Sergeant West that he had none, and admitted that he had been driving on a suspended driver's license. At Sergeant West's request, O'Neill attempted to start the car, albeit unsuccessfully. O'Neill then told Sergeant West that his name was Harold Macomber, the man to whom the car was registered. At this point, Sergeant West believed "that there was a possibility that [he] was dealing with somebody who was not who he said he was[,]" and was "concerned he wasn't getting a straight story." He therefore asked O'Neill to step out of the car for a pat-down search for identification. As O'Neill got out of the car, Sergeant West saw on the car's floorboard a spoon containing a granular substance, which he immediately recognized—based on his narcotics training and more than 20 years of experience as a police officer—to be a "cook spoon for narcotics." Sergeant West asked O'Neill if he could search the car. O'Neill initially refused and told Sergeant West that he would have to get a warrant. Sergeant West responded that he could arrest O'Neill for possession of drug paraphernalia and then conduct a search incident to that arrest. O'Neill continued to insist, for a while, that the officer needed a warrant to search the vehicle, but he ultimately consented, and Sergeant West searched the car, discovering a crack pipe and a baggie filled with cocaine. He arrested O'Neill for unlawful possession of cocaine and the State charged him accordingly. Before trial, O'Neill filed a motion to suppress "all evidence gathered as a result of the illegal stop of Mr. O'Neill" under article 1, section 7 of the Washington Constitution. After hearing testimony from Sergeant West and O'Neill, the trial court concluded that Sergeant West had the right under his community caretaking function to make reasonable investigation of the circumstances of O'Neill being parked in front of the closed store late at night, but that Sergeant West "had no probable cause to believe that [O'Neill] had committed any crime" and "had no reasonable suspicion that any criminal activity was taking place" until O'Neill admitted that he had been driving on a suspended driver's license. Because Sergeant West requested identification before O'Neill made this admission, the trial court reluctantly concluded that Sergeant West's request violated article 1, section 7 of the Washington Constitution. The trial court explained that this conclusion was required by State v. Markgraf, 59 Wash.App. 509, 513-14, 798 P.2d 1180 (1990), a case in which Division Three of this court held that a police officer performing his community caretaking duties was prohibited from requesting identification where no caretaking was needed, no investigation was in progress and no crime had been reported:

Markgraf appears to be authority for the principle that no further inquiry or request to see a driver[']s license is allowed, and that any evidence which is thereafter discovered is inadmissible and should be suppressed.

While that is the law as stated by Division III of the Court of Appeals, a thorough analysis of our state constitution is lacking [in the Markgraf opinion] to support the decision reached. The result of Markgraf is that in the absence of probable cause or articulable facts supporting a reasonable suspicion, a police officer in this state may not simply ask a citizen a question, and if an incriminating answer is given to the question then suppression must follow. Suppose an officer was to walk up to a citizen who under the facts is not seized, and without suspicion asks[,] "do you know who robbed the bank?" If in response the citizen were to reply "I did," then a strict reading of Markgraf would result in a suppression of the evidence. That should not be the law.

. . . .

... But this court is bound by the Markgraf holding. This court invites the state to appeal this decision so that the appellate court in this division can have an opportunity to decide whether or not this division will follow the Markgraf holding. Unless Division I reaches a result contrary to Division III, the holding of Division III is binding on this court.

Clerk's Papers at 18-20. As a result, the trial court suppressed "the evidence obtained by Law Enforcement ... following Sergeant West's request for identification from O'Neill[.]" Clerk's Papers at 102. The trial court also ruled that the search of the vehicle could not be upheld on the basis of consent, O'Neill having acquiesced to the officer's authority only after considerable argument over whether the officer needed a search warrant; therefore the consent was not voluntary. The State appeals these rulings.

DISCUSSION

The State contends that Sergeant West's request for identification and his subsequent search of O'Neill's vehicle did not violate article 1, section 7 of the Washington Constitution; thus, the trial court erred by suppressing the cocaine that Sergeant West subsequently seized from the car as fruit of the poisonous tree. O'Neill contends that even Sergeant West's questions regarding why O'Neill was parked in front of the closed store constituted an unreasonable intrusion into O'Neill's private affairs, contrary to the trial court's determination. See State v. Bobic, 140 Wash.2d 250, 257, 996 P.2d 610 (2000) (explaining that a respondent may challenge a trial court's findings without filing a cross-appeal if the respondent is not seeking affirmative relief). He urges this court to affirm the trial court's suppression of the cocaine because the officer had no right, under the community caretaking function, to question his presence in the parking lot, but should that argument fail, to affirm on the alternative reasoning that the initial request for identification constituted an unconstitutional seizure.

Article 1, section 7 of the Washington Constitution states that "[n]o person shall be disturbed in his...