State v. Perez

• Court: Washington Court of Appeals
• Writing for the Court: COLEMAN; CORBETT, C.J., and GROSSE
• Citation: State v. Perez, 704 P.2d 625, 41 Wn.App. 481 (Wash. App. 1985)
• Decision Date: 22 July 1985
• Docket Number: No. 14315-8-I
• Parties: STATE of Washington, Respondent, v. Miguel Alvarez PEREZ, Appellant.

Page 481

41 Wn.App. 481

704 P.2d 625

STATE of Washington, Respondent, v. Miguel Alvarez PEREZ, Appellant.

No. 14315-8-I.

Court of Appeals of Washington Division 1.

July 22, 1985.

Publication Ordered Aug. 9, 1985.

Washington Appellate Defenders Ass'n, Nancy Talner, Seattle, for appellant.

Norman K. Maleng, King Co. Pros. Atty., Al Matthews, Deputy, Seattle, for respondent.

COLEMAN, Judge.

On October 6, 1983, at approximately 1:30 a.m., Seattle Police Officers Hogue and Charles noticed defective taillights on a vehicle driven by appellant Miguel Perez. The officers pulled the vehicle over, and Hogue approached the driver's side while Charles approached the passenger's side. When Officer Hogue asked Perez for his driver's license, he detected the odor of alcohol and noticed that Perez' eyes were bloodshot. Suspecting that Perez might be intoxicated, Officer Hogue asked if he would be willing to perform some sobriety tests. Perez agreed, exited the vehicle, and moved with Hogue some 18 to 20 feet to the sidewalk.

At this point, Officer Charles, who was standing on the passenger side of the vehicle, saw something suspicious in the rear of the vehicle. Charles stated he was curious because

I was looking in and I saw a car speaker. It was in the back of the car with a wire sticking out like it had been detached or something. So when I was first looking, when I was looking inside of the car, when I first went up, I was looking from outside in seeing where the speaker was located in the car, and that speaker appeared not to belong in the car.

Charles then walked around to the driver's side of the vehicle. While standing by the open door, Charles looked down and observed some wood and what appeared to be the barrel of a gun protruding from beneath a jacket on the floorboard. Charles pulled the coat off and found a sawed-off rifle. He removed ammunition from the gun and then showed it to Officer Hogue. Perez was then arrested for a weapons violation and given his Miranda rights.

After the arrest, Perez' vehicle was towed to Seattle Central Towing and searched pursuant to a warrant. During the search, the police uncovered some property stolen in a recent robbery. Prior to his subsequent trial and conviction for armed robbery, Perez moved to suppress physical evidence, including the rifle, seized from his car. The motion was denied.

We first consider whether Officer Charles' discovery of the rifle was the product of a warrantless "search," or whether his observations were made in "open view."

"SEARCH" FROM OUTSIDE VEHICLE

Evidence discovered in "open view," as opposed to "plain view," is not the product of a "search" within the meaning of the Fourth Amendment. State v. Seagull, 95 Wash.2d 898, 901-02, 632 P.2d 44 (1981). In distinguishing "open" from "plain" view, the Seagull court quoted State v. Kaaheena, 59 Hawaii 23, 28-29, 575 P.2d 462, 466-67 (1978):

In the "plain view" situation "the view takes place after an intrusion into activities or areas as to which there is a reasonable expectation of privacy." The officer has already intruded, and, if his intrusion is justified, the objects in plain view, sighted inadvertently, will be admissible. Coolidge v. New Hampshire, 403 U.S. 443 [29 L.Ed.2d 564, 91 S.Ct. 2022] (1971); Harris v. United States, 390 U.S. 234 [19 L.Ed.2d 1067, 88 S.Ct. 992] (1968).

In the "open view" situation, however, the observation takes place from a non-intrusive vantage point. The governmental agent is either on the outside looking outside or on the outside looking inside to that which is knowingly exposed to the public. See Moylan, The Plain View Doctrine: Unexpected Child of the Great "Search Incident" Geography Battle, 26 Mercer L.Rev. 1047, 1096, 1097 (1975). The object under observation is not subject to any reasonable expectation of privacy and the observation is not within the scope of the constitution.

(Some citations and footnotes omitted.) Seagull, 95 Wash.2d at 901-02, 632 P.2d 44. In the instant case, the trial judge for the suppression hearing concluded that Officer Charles' discovery of the weapon was justified under the "open view" doctrine. ¹

Perez argues, however, that he had an expectation of privacy in the contents of his vehicle and that Officer Charles' discovery of the gun was the result of improper "spying" into the vehicle. These arguments are without merit. As the United States Supreme Court stated in Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) "[t]here is no legitimate expectation of privacy shielding that portion of the interior of an automobile which may be viewed from outside the vehicle by either inquisitive passersby or diligent police officers." (Citations omitted.) Brown, 460 U.S. at 740, 103 S.Ct. at 1542. In Brown, a Texas police officer stopped Brown's vehicle at night at a routine driver's license checkpoint. The officer asked Brown for his license, shined his flashlight into the car, and saw an opaque party balloon, knotted near the tip, fall from Brown's hand to the seat beside him. While Brown searched his glove compartment for his license, the officer shifted his position to obtain a better view and noticed small plastic vials containing white powder. The Supreme Court stated:

the fact that Maples "changed [his] position" and "bent down at an angle so [he] could see what was inside" Brown's car ... is irrelevant to Fourth Amendment analysis. The general public could peer into the interior of Brown's automobile from any number of angles; there is no reason Maples should be precluded from observing as an officer what would be entirely visible to him as a private citizen.

Brown, 460 U.S. at 740, 103 S.Ct. at 1542.

Brown is analogous to the instant case in several significant respects. First, in both cases, an officer noticed something suspicious in a lawfully stopped vehicle. Second, both officers attempted to obtain a better view of the suspicious items without actually entering the vehicles. Finally, after changing their vantage point, both officers discovered suspicious items not seen from their first vantage point. Such conduct enabling the officers to observe the vehicle interior is not, under Brown, a search within the meaning of the Fourth Amendment. ²

SEARCH AND SEIZURE OF RIFLE

Perez also contends that the officer's removal of the coat and seizure of the rifle violated his Fourth Amendment rights. As a general rule, officers conducting an investigatory detention may search for and at least temporarily seize weapons if they have reason to believe that they are dealing with an armed and dangerous detainee. State v. Williams, 102 Wash.2d 733, 738-39, 689 P.2d 1065 (1984); Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983); State v. Leagea, 442 So.2d 699 (La.App.1983); State v. Reed, 388 So.2d 776 (La.1980); see State v. Malbeck, 15 Wash.App. 871, 873, 552 P.2d 1092 (1976). In Long, the Supreme Court articulated the protective search test as follows:

the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on "specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant" the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons. See Terry [v. State ], 392 U.S. , at 21, 20 L.Ed.2d 889, 88 S.Ct. 1868, 44 Ohio Ops 2d 383 [1968].

(Footnote omitted.) Long, 463 U.S. at 1049, 103 S.Ct. at 3480, 77 L.Ed.2d at 1220. The focus in a case of this nature is on the reasonableness of the officer's conduct in light of all the circumstances, including the scope or intensity of the search and/or seizure. Long, 463 U.S. at 1051, 103 S.Ct. at 3481, 77 L.Ed.2d at 1221.

In the present case, Officer Charles had reason to believe Perez was armed when, from a lawful vantage point, he observed a piece of wood and what looked like a gun barrel covered by a jacket on the vehicle floorboard. Given the circumstances and the reasonable inferences that would be drawn by a cautious officer, there was also reason to believe that Perez might be dangerous because: (1) the coat covering the rifle suggested an attempt by Perez to conceal the weapon; (2) the rifle was situated on the floorboard so as to be difficult to view but still readily accessible by the driver; (3) the officer noticed a stereo speaker in the back of the car which was detached and "appeared not to belong in the car"; and (4) it was 1:30 a.m. and Perez had bloodshot eyes and an odor of alcohol about his person. Given these warning signals, a prudent and cautious officer would and should protect...