State v. Newell

• Decision Date: 10 February 2022
• Docket Number: 37762-8-III
• Parties: STATE OF WASHINGTON, Respondent, v. RACHEL G. NEWELL, Appellant.
• Court: Court of Appeals of Washington

STATE OF WASHINGTON, Respondent, v. RACHEL G. NEWELL, Appellant.

No. 37762-8-III

Court of Appeals of Washington, Division 3

February 10, 2022

UNPUBLISHED OPINION

Siddoway, A.C.J.

Rachel Newell is the girlfriend of Bryan Wing, or was, in October 2019, when Mr. Wing became the immediate suspect of a residential burglary. A debit card in Mr. Wing's name was found near where a newly-purchased miter saw had been taken from a residential construction site. Sheriff's deputies secured warrants to search Mr. Wing's car and the home where he and Ms. Newell were then living. Ms. Newell was a passenger in Mr. Wing's car when it was seen not far from the home, during execution of the residential search warrant. When detained and questioned, she confessed to participating in the burglary and theft of the saw.

After being charged with crimes for that incident, and later, for a further crime identified in the course of law enforcement investigation, Ms. Newell filed motions to suppress challenging the legality of her detention and the admissibility of its evidentiary fruits. With only limited exceptions, her motions were denied. She was later found guilty in stipulated fact trials.

The fact that findings and conclusions were not entered following the bench trial could have delayed resolution of the appeal and we remind both parties of the guidance offered in State v. Yallup, 3 Wn.App. 2d 546, 556-57, 416 P.3d 1250 (2018), of their duty to address a trial court's failure to enter findings and conclusions following a bench trial prior to briefing. See discussion at 16-18, infra.

We reject Ms. Newell's challenge to the trial court's suppression decision but agree with her that the stipulated facts were insufficient to establish her knowing possession of stolen property. We reverse her conviction for possession of stolen property, otherwise affirm, and remand for resentencing.

FACTS AND PROCEDURAL BACKGROUND

The discovery that someone kicked in the door of a home being constructed for Mindy Halme and stole a miter saw, and why Bryan Wing was an immediate suspect, is detailed in this court's opinion in State v. Wing, No. 37311-8-III (Wash.Ct.App. July 13, 2021 (unpublished).^[1] Those facts are not disputed in this appeal. Also not disputed is the validity of warrants obtained by Lincoln County Sheriff's Deputy Jared McLagan to arrest Mr. Wing and search his car, the home he shared with Ms. Newell, and several outbuildings on the property.

As the search warrant for the property was being executed that evening, Mr. Wing's vehicle was seen nearby and was stopped. Mr. Wing and Ms. Newell were inside. Police detained not only Mr. Wing, but also Ms. Newell.

In searching Mr. Wing's car, deputies discovered sawdust on its back seat and later found the stolen saw in the car's trunk. After the saw was found, Ms. Newell was read her Miranda^[2] rights and agreed to speak with Deputy McLagan. She admitted to the deputy that she and Mr. Wing broke into the home being constructed for Ms. Halme in order to commit a theft and stole the miter saw while inside.

In the course of searching the Wing/Newell residence, deputies took pictures of items that might prove to be stolen. Deputy McLagan's application for the warrant had explained law enforcement's reasons for suspecting Mr. Wing and Ms. Newell of other thefts:

While Bryan and Rachel were living [in Davenport, ] they had items for sale on Facebook Market place. These items were high dollar items. Most of the items they were selling were brand new and still in the box and had never been used. Both Bryan and Rachel were for the most part unemployed. Also they were seen coming and going late at night and would travel the back roads as to avoid deputies when returning home.

The Sheriff's Office had many tips that Bryan['s] and Rachel's home was full of stolen items. We were advised that they go to Spokane to both sell and steal property almost nightly. Bryan and Rachel both have a long history of arrests and convictions of burglary and theft.

Clerk's Papers (CP) at 28.

Deputies also saw evidence during the search of the home suggesting that Ms. Newell and Mr. Wing were renting a storage unit in Spokane. A warrant was obtained to search the unit. After serving the warrant, Deputy McLagan was told by storage company staff that a unit rented by Tom Burns had recently been burglarized. Deputies showed Mr. Burns pictures of items photographed during the search of the Wing/Newell residence, and Mr. Burns identified photography lighting equipment and antique cameras as items stolen from his unit.

Ms. Newell was initially charged with second degree burglary, second degree malicious mischief, and third degree theft for the crimes allegedly committed at the Halme residence. She was charged in a second prosecution with second degree possession of stolen property-the lighting equipment and cameras belonging to Mr. Burns. She filed three motions to suppress: two in the prosecution for the crimes involving Ms. Halme's property, and one in the prosecution for possessing property stolen from Mr. Burns. Among other challenges to law enforcement's actions, she contended that deputies lacked any basis to detain her at the time they stopped Mr. Wing's car.

A total of three hearings were held on the motions, at which Deputy McLagan and Sergeant Kody Becker testified. The trial court ultimately denied her motions to suppress with limited exceptions not relevant here.^[3]

On the basis of the findings, the court concluded that deputies legally stopped Mr. Wing's vehicle, Deputy McLagan had probable cause when he conducted a custodial interrogation of Ms. Newell, and her statements before the custodial interrogation were voluntary.

Ms. Newell objected to the amended findings and moved the court to reconsider. The court denied the motion. In denying the motion, however, it made the following clarifying statement about Ms. Newell's initial detention and subsequent arrest:

There should be no question the defendant was initially seized by the officers when she was placed into the patrol car after the car she was a passenger in was stopped. As this court previously held, she was not under arrest at that time and the temporary seizure was justified following the stop as the deputies had reasonable suspicion of criminal activity and were investigating the break in and burglary and conducting an interview of Mr. Wing following the separation of the parties. However, she was not interrogated until after the miter saw was discovered in the trunk and the sawdust was observed in the back seat as well as the other factors this court had found. A significant amount of evidence then existed to link her as a passenger in the car to criminal activity.

CP at 105 (emphasis added).

Following this ruling, Ms. Newell waived her right to a jury trial and both prosecutions proceeded to bench trials on a single statement of stipulated facts. In entering guilty verdicts in the two cases, the trial court made no oral findings of fact or conclusions of law; it stated only that it was basing its verdict on the stipulated facts. It sentenced Ms. Newell to 50 months on the burglary charge, 18 months on the malicious mischief charge, and 18 months on the possession of stolen property charge, all to run concurrently.

Ms. Newell appeals. The day after she filed her opening brief, our Supreme Court decided State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021), and Ms. Newell moved for leave to add a Blake-related assignment of error. The motion was granted.

ANALYSIS

In her opening and supplemental briefs, Ms. Newell makes a total of 17 assignments of error that fall within four categories: (1) challenges to the court's denial of her motion to suppress evidence obtained as a result of her alleged unlawful detention, (2) a challenge to the sufficiency of the evidence to support her conviction for possession of stolen property, (3) the trial court's failure to enter findings of fact and conclusions of law explaining its verdicts in the stipulated fact trials, and (4) a need for resentencing in light of the effect on her offender score of Blake.

I. Reasonable suspicion supported Ms. Newell's detention

Ms. Newell contends she was unlawfully detained when officers, armed with warrants that named only Mr. Wing, temporarily handcuffed her and placed her in the back seat of a patrol car. She argues that all evidence stemming from the detention should have been suppressed. In light of the trial court's ultimate explanation that her temporary seizure was justified given the deputies' reasonable suspicion of her involvement in the Halme burglary, the parties analyze whether her detention was a lawful Terry^[4] stop.

Article I, section 7 of the Washington Constitution protects against unwarranted government intrusion into a person's private affairs. The Fourth Amendment to the United States Constitution provides similar protection, prohibiting unreasonable searches and seizures. Based on these constitutional protections, "warrantless seizures are per se unreasonable." State v. Doughty, 170 Wn.2d 57, 61, 239 P.3d 573 (2010).

If a search or seizure is made without a warrant, the State must show by clear and convincing evidence that the search or seizure falls into one of the "few 'jealously and carefully drawn exceptions' to the warrant requirement." State v. Garvin, 166 Wn.2d 242, 249-50, 207 P.3d 1266 (2009) (internal quotation marks omitted) (quoting State v. Duncan, 146 Wn.2d 166, 171, 43 P.3d 513 (2002)). One such exception is a Terry stop, which is a brief, investigatory seizure for which no warrant or probable cause is required.

A Terry stop must be supported by "a well-founded suspicion that the defendant engaged in criminal conduct." Dou...