State v. Okler

• Decision Date: 09 March 2020
• Docket Number: 78750-1-I
• Parties: STATE OF WASHINGTON, Respondent, v. MICHAEL CRAIG OKLER, Appellant.
• Court: Washington Court of Appeals

STATE OF WASHINGTON, Respondent, v. MICHAEL CRAIG OKLER, Appellant.

No. 78750-1-I

Court of Appeals of Washington, Division 1

March 9, 2020

UNPUBLISHED OPINION

SMITH J.

Michael Okler appeals his conviction for possession of a controlled substance. He contends that evidence of methamphetamine found in his sock should have been suppressed because it was the fruit of an unlawful seizure. He further contends that the statute under which he was convicted was unconstitutional and that his trial counsel was ineffective for failing to request an unwitting possession instruction. Finally, Okler argues that the trial court erred by ordering him to pay Department of Corrections (DOC) supervision fees and interest on legal financial obligations.

We affirm but remand to the trial court to strike the DOC supervision fees and interest on legal financial obligations.

FACTS

On August 6, 2017, Marysville Police Sergeant Matthew Goolsby and Officers Joseph Belleme and Belinda Paxton responded to a 911 call regarding suspected drug activity in a recreational vehicle (RV) parked on a public street. Upon arrival Sergeant Goolsby parked several blocks away from the RV, but Officer Belleme parked 20 or 30 feet away from the RV. The officers did not activate their vehicles' lights or sirens. Officer Belleme approached the front of the RV and attempted to have a conversation with a woman seated in the driver's seat in a conversation. After having difficulty hearing one another, the woman voluntarily exited the vehicle, and Officer Belleme learned that there were other individuals in the RV. Officer Belleme then stated "This is Marysville Police, is there anybody else in the vehicle? We'd like to talk to you. Can you come out and talk to us?'" Officer Belleme later testified that he did not use an "aggressive tone."

Okler exited the RV. At some point thereafter, Officer Belleme made another announcement to the people in the RV, and two more individuals came out. Officer Belleme "motioned and asked if [Okler] would come up to the front of the vehicle where [Officer Belleme] was at, and . . . asked [Okler] what his name was." Okler provided his name and date of birth, and while dispatch "ran a check on [Okler's] name," Officer Belleme and Okler "had casual conversation." Officer Belleme advised Okler of the purpose of the officers' visit, namely a report of drug activity. After about one minute, the results from dispatch came through, and Officer Belleme learned that there was an outstanding warrant for Okler's arrest. At this point Officer Belleme "told [Okler] to sit down and that he was not free to leave." Once the warrant was confirmed Officer Belleme handcuffed and formally arrested Okler. He failed to advise Okler of his Miranda rights. "During [the] search incident to arrest, Officer Belleme asked [Okler] if he had anything illegal that would affect his admissibility into the jail." Okler responded that he sold methamphetamine and "indicated he had two grams of methamphetamine in his left sock." Officer Belleme located the methamphetamine in Okler's sock.

The State charged Okler with possession of a controlled substance, methamphetamine, under RCW 69.50.4013 (the possession statute). Prior to trial, Okler moved to suppress the drug evidence obtained during his arrest, arguing that Okler was unlawfully seized when Officer Belleme "ordered" him out of the RV. Meanwhile, the State moved to admit Okler's pre- and postarrest statements to Officer Belleme. Following a CrR 3.5 and CrR 3.6 hearing, the trial court concluded that Okler voluntarily exited the RV, that the officers did not compel him to do so, and that he was not unlawfully seized. The court thus denied Okler's motion to suppress the drug evidence found in his sock. The court also concluded that because Okler was not in custody until Officer Belleme told him to sit on the curb, any statements that Okler made up to that point were admissible. However, the court concluded that because Okler was not given Miranda warnings after he was told to sit on the curb, his subsequent statements that he had methamphetamine in his sock and that he sold methamphetamine were inadmissible except for impeachment purposes.

At trial, Okler testified that he remembered "[v]ery little" of the morning of his arrest because he "had just gotten out of the hospital from a drug overdose." He testified that one of the women in the RV "grabbed [his] feet and pulled them up towards her and said, why don't you just put your feet up and relax." He testified that he did not recall having anything, much less a controlled substance, in his sock. Okler testified that he did not remember telling Officer Belleme that he had "anything on [his] person" or that he sold drugs.

The court gave a standard jury instruction, consistent with 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 50.03 (4th ed. 2016), for possession of a controlled substance, and Okler's counsel did not request an unwitting possession instruction. The jury convicted Okler as charged. At sentencing, the court ordered Okler to pay a $500 victim penalty assessment, interest thereon, and DOC supervision fees. Okler appeals.

ANALYSIS

Admission of Drug Evidence

Okler contends that because he was unlawfully seized when he exited the RV in response to Officer Belleme's announcement, the trial court erred by not suppressing the fruits of that seizure, i.e., the evidence of the methamphetamine found in his sock. We disagree.

Under article I, section 7, a person is seized "only when, by means of physical force or a show of authority," [their] freedom of movement is restrained and a reasonable person would not have believed [they are] (1) free to leave, given all the circumstances, or (2) free to otherwise decline an officer's request and terminate the encounter.

State v. O'Neill, 148 Wn.2d 564, 574, 62 P.3d 489 (2003) (citation omitted) (internal quotation marks omitted) (quoting State v. Young, 135 Wn.2d 498 510, 957 P.2d 681 (1998)). Facts indicative of a seizure include "'the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.'" Young, 135 Wn.2d at 512 (quoting United States v. Mendenhall, 446 U.S. 544, 554-55, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)).

Article I, section 7 permits social contacts between police and citizens. Young. 135 Wn.2d at 511. And "'[a] police officer's conduct in engaging a defendant in conversation in a public place and asking for identification does not, alone, raise the encounter to an investigative detention.'" Young, 135 Wn.2d at 511 (quoting State v. Armenta, 134 Wn.2d 1, 11 948 P.2d 1280(1997)). Where, as here, the determinative facts are not in dispute, ^[1] "'the ultimate determination of whether those facts constitute a seizure is one of law, '" which we review de novo. State v. Harrington, 167 Wn.2d 656, 662, 222 P.3d 92 (2009) (quoting Armenta, 134 Wn.2d at 9). Okler has the burden of proving that a seizure in violation of his constitutional rights occurred. O'Neill, 148 Wn.2d at 574.

Here, Okler has not met his burden. Specifically, Okler was a passenger in a parked vehicle located in a public space and could be stopped by police for a social contact. See State v. Mote, 129 Wn.App. 276, 280, 292, 120 P.3d 596 (2005) (holding that where the defendant was a passenger in vehicle parked in a public place, he was not seized merely because an officer approached and asked for his name and birth date). To that end, when the officers approached the RV, they did not activate their emergency lights or sirens, nor did they block the RV's exit with their patrol cars. And while Okler exited the vehicle following Officer Belleme's first announcement, others remained in the RV, thus suggesting that a reasonable person would have felt free to decline Officer Belleme's request. See State v. Smith, 154 Wn.App. 695, 699-700, 226 P.3d 195 (2010) (concluding that the defendant was not seized when he exited a motel room because "the officers did not instruct Smith to remain in the area outside the room" and the other occupant "remain[ed] in the room, strongly suggesting that the officers did not require Smith to leave"). Moreover, the language used by Officer Belleme suggested compliance was a choice, i.e., "We'd like to talk to you. Can you come out and talk to us?" Finally, Officer Belleme never touched Okler and did not prevent him from leaving until he told him to sit on the curb. In short, the cumulative facts surrounding the initial interaction between Okler and the officers support a determination that it was a social contact, not a seizure.

Okler disagrees and relies on State v. Carriero^[2] for the proposition that, among other things, "[t]he flanking or impediment of a vehicle by police is a factor that tends [to] show that the person inside the vehicle was seized." In Carriero, two officers parked behind the defendant's vehicle in a narrow alley which "blocked Carriero's egress." 8 Wn.App. 2d at 647. The officers, standing immediately next to the vehicle's doors and "with guns in holsters," asked the occupants of the vehicle whether "either possessed identification." Carriero, 8 Wn.App. 2d at 648, 659. Division Three concluded that Carriero was seized and held that the fruits of the unlawful possession must be suppressed. Carriero, 8 Wn.App. 2d at 666. Unlike Carriero. the officers here did not prevent the exit of any of the RV's occupants, and no facts in the record establish that the officers' vehicles prohibited the RV's egress. Thus, Okler's reliance on Carriero is misplaced.

Okler further contends that h...