State v. Pham
| Decision Date | 16 July 2019 |
| Docket Number | No. 51213-1-II,51213-1-II |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. LONG PHAM, Appellant. |
SUTTON, J. — Long Pham appeals his jury trial convictions for unlawful possession of a controlled substance (heroin) with intent to deliver, unlawful possession of a controlled substance (methamphetamine), and unlawful possession of a controlled substance (buprenorphine). He argues that the trial court erred when it denied his motion to suppress the evidence discovered following a search of his backpack and person and when it refused to admit additional evidence under ER 410 after both parties had rested their cases. The State concedes that the ER 410 ruling was error, but it argues that the trial court properly refused to reopen the defense to consider this evidence. We hold that the trial court did not err when it concluded that Pham's initial contact with law enforcement was a social contact, and the admissibility of the additional evidence is irrelevant in light of the trial court's unchallenged ruling denying Pham's motion to reopen the defense. Accordingly, we affirm.
The unchallenged findings of fact from the suppression hearing in this case establish the following background facts.1 Around 11:30 pm on October 15, 2016, Clark County Sheriff's Detective Ryan Preston was on routine patrol and decided to run a check on the license plate of a vehicle that was parked in an unusual location in a convenience store parking lot. While waiting for information about the vehicle, Detective Preston "circled the parking lot." Clerk's Papers (CP) at 156, 1 Report of Proceedings (RP) at 34, 36. Detective Preston learned that the vehicle was owned by a female. When the detective again approached the vehicle, he saw Pham walking away from it.
Remaining in his patrol car, Detective Preston approached Pham without activating the patrol vehicle's lights and sirens. Using a normal speaking tone, Detective Preston asked Pham if he had come from the store, and Pham stated that he had. The detective then asked Pham if he was the vehicle's registered owner. Pham "stated with uncertainty that the vehicle belonged to a friend." CP at 156 1 RP at 45-46. The detective "then told [Pham] that he wanted to talk to him about the vehicle and whether it was stolen." CP at 156, 1 RP at 46. Pham "immediately started running away through the parking lot." CP at 156, 1 RP at 46.
As Pham fled, the detective followed in his patrol car and observed Pham discard his backpack. Pham eventually fell, and Detective Preston was able to detain Pham. "DetectivePreston did not give [Pham] any commands or orders to stop at any point prior to his arrest." CP at 156.
After arresting Pham, the detective searched Pham's backpack, a small plastic container that [Pham] dropped when he fell, and [Pham's] person, and found items associated with drug sales and use, heroin, Subutex,2 and methamphetamine. The State charged Pham by amended information with possession of a controlled substance (heroin) with intent to deliver, unlawful possession of a controlled substance (methamphetamine), and unlawful possession of a controlled substance (buprenorphine).
Pham moved to suppress the evidence found during the search following his arrest. He argued that Detective Preston lacked reasonable articulable suspicion to justify a Terry3 stop. The State responded that the initial contact was a lawful social contact and that Detective Preston lawfully initiated the Terry stop after Pham ran away and started discarding items.
Detective Preston, the only witness to testify at the suppression hearing, testified to the facts set out above. In addition, Detective Preston testified that he did not tell Pham that "he wasn't free to leave or anything like that." 1 RP at 43.
The trial court denied the motion to suppress. The trial court's written findings are described in the facts above. The trial court also entered the following conclusion of law:
Detective Preston's initial contact with the Defendant was a social contact and did not rise to the level of a seizure. The contact occurred in a public place, there were no lights or sirens activated, there were no other officers present, and [Pham] was free to leave. Whether Detective Preston was investigating a potential crime at the time of his initial contact with [Pham] did not elevate the social contact to a seizure.
CP at 157 (emphasis added).
At trial, Detective Preston testified about his initial contact with Pham, Pham's flight, the fact Pham discarded his backpack, and the container that was in Pham's hand when he fell. The detective also testified that he found "multiple drug paraphernalia items, as well as multiple drugs" during a search incident to arrest. 2 RP at 159.
Detective Preston further testified that Pham had admitted that he had been "distributing or delivering, selling, drugs." 2 RP at 185. Pham also told Detective Preston that "he was a middleman." 2 RP at 186.
Pham testified that he was a drug addict and admitted that he had possessed the methamphetamine, heroin, and buprenorphine that Detective Preston found after the arrest. Pham asserted, however, that the drugs were for personal use. He also denied having admitted that he was a drug dealer or to ever having dealt drugs.
On cross-examination, Pham denied having any prior convictions for possession with intent to deliver. Even after the State presented Pham with a copy of a 2014 judgment and sentence signed by Pham showing a guilty plea conviction for a possession with intent to deliver charge, Pham continued to deny having pleaded guilty to such a charge and asserted that this conviction was not on his "rap sheet." 3 RP at 289.
On redirect, Pham again asserted that he did not have a conviction for possession with intent to deliver on his "rap sheet." 3 RP at 291. Defense counsel rested without asking for any additional time to present evidence that could have explained why Pham did not think he had a conviction for possession with intent to deliver.
After both parties rested, Pham's counsel advised the trial court that the State's plea offer in this case included a declaration of criminal history that did not list any possession with intent to deliver convictions and advised the trial court that this document was relevant to explain Pham's "confusion" regarding whether he had a prior possession with intent to deliver conviction. 3 RP at 306-07. When the trial court responded that a request to admit the declaration of criminal history was untimely, Pham moved to reopen the defense.
The trial court stated that it was not preventing Pham from arguing that he had been confused based on other evidence in the record, but it ruled that the declaration of criminal history was inadmissible under ER 4104 because it was part of a plea offer. The trial court also denied the motion to reopen the defense, noting that Pham had "ample opportunity" to clarify Pham's confusion on redirect examination, well before both parties had rested. 3 RP at 343.
The jury found Pham guilty as charged. Pham appeals.
Pham first challenges the trial court's denial of his suppression motion. He argues that, taken in context, Detective Preston's telling Pham that he "wanted to talk to [Pham] about the vehicle and whether it was stolen" amounted to a direction or command to Pham to speak to the detective and that this show of authority elevated the social contact to a seizure. Br. of Appellant at 11; CP at 156. We disagree.
The Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution protect a citizen's right to be free from unreasonable search and seizure and a citizen's freedom from interference in his or her private affairs. State v. Day, 161 Wn.2d 889, 893, 168 P.3d 1265 (2007). Whether police have seized a person is a mixed question of law and fact. State v. Harrington, 167 Wn.2d 656, 662, 222 P.3d 92 (2009). The trial court's factual findings are "'entitled to great deference, but the ultimate determination of whether those facts constitute a seizure'" is a question of law that we review de novo. Harrington, 167 Wn.2d at 662 (internal quotation marks omitted) (quoting State v. Armenta, 134 Wn.2d 1, 9, 948 P.2d 1280 (1997)).
A "seizure occurs when 'considering all the circumstances, an individual's freedom of movement is restrained and the individual would not believe [that he] is free to leave or decline a request due to an officer's use of force or display of authority.'" Harrington, 167 Wn.2d at 663 (quoting State v. Rankin, 151 Wn.2d 689, 695, 925 P.3d 202 (2004)). This determination is an objective determination based on the officer's actions. Rankin, 151 Wn.2d at 695. "The relevantquestion is whether a reasonable person in the individual's position would feel he or she was being detained." Harrington, 167 Wn.2d at 663 (citing State v. O'Neill, 148 Wn.2d 564, 581, 62 P.3d 489 (2003)).
But "[a] 'social contact' is not a seizure." State v. Guevara, 172 Wn. App. 184, 188, 288 P.3d 1167 (2012) (quoting Harrington, 167 Wn.2d at 664-65). And when an officer suspects the possibility of criminal activity, he or she may question an individual and ask for identification without effecting a seizure. O'Neill, 148 Wn.2d at 577. A social contact falls "someplace between an officer's saying 'hello' to a stranger on the street" and an investigative detention. Harrington, 167 Wn.2d at 664. Police actions likely to result in a seizure rather than social contact 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...
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