State v. Pierce, No. 31780-0-II (WA 9/7/2005), 31780-0-II
| Decision Date | 07 September 2005 |
| Docket Number | No. 31780-0-II,31780-0-II |
| Court | Washington Supreme Court |
| Parties | STATE OF WASHINGTON, Respondent, v. WADE WILLIAM PIERCE, Appellant. |
Appeal from Superior Court of Lewis County. Docket No. 04-1-00082-8. Judgment or order under review. Date filed: 05/18/2004. Judge signing: Hon. Richard Lynn Brosey.
Counsel for Appellant(s), Jodi R. Backlund, Backlund & Mistry, 203 4th Ave E Ste 217, Olympia, WA 98501-1187.
Manek R. Mistry, Backlund & Mistry, 203 4th Ave E Ste 217, Olympia, WA 98501-1187.
Counsel for Respondent(s), J. Andrew Toynbee, Lewis County Prosecuting Atty Ofc, M/S Pr001, 360 NW North St, Chehalis, WA 98532-1925.
Wade Pierce appeals his convictions of unlawful possession of controlled substances; unlawful possession with intent to deliver controlled substances, with a firearm sentence enhancement; and unlawful use of drug paraphernalia. He argues that he received ineffective assistance of counsel. We agree and reverse and remand for a suppression hearing.
On the night of January 27, 2004, Andrew Willms, a Wal-Mart security officer, detained Denise Seacrest on suspicion of shoplifting. Seacrest could not produce identification. She told Willms that Wade Pierce, who waited for her outside in a red Subaru, had her identification. Willms called the Chehalis police and went outside to the parking lot, where he located a red Subaru with Pierce sitting inside.1 When Officer Wilson arrived, he joined Willms at the driver's side of the Subaru.
When Willms shined his flashlight into the car, he thought he saw a firearm. He shouted `gun,' prompting Wilson to draw his weapon and order Pierce to step out of the car. Report of Proceedings (4/21/04) (RP) at 21. After Pierce complied, Wilson patted him down.
As he was conducting the pat-down search, Wilson saw and retrieved from the car some glass smoking pipes; the pipes smelled like burnt marijuana. Based on finding the pipes, Wilson arrested and handcuffed Pierce. He then resumed searching the vehicle. He found a small multipliers tool on the seat where Pierce had been sitting and two cigarette lighters on the passenger seat. Willms mistook one of the lighters for the `gun' because it looked like a semi-automatic pistol.
Continuing the search, Wilson located a small black pouch under the driver's seat. Inside it, he saw several empty small plastic bags and two larger ones containing a `white, crystal material, and another bag containing green, leafy substance.' RP (4/21/04) at 53. The white material later proved to be methamphetamine and the leafy substance proved to be marijuana.
In the back seat, Wilson found a large black bag containing a loaded automatic handgun.2 The same bag contained an assortment of pill bottles. An unlabeled bottle held Oxycodone, a Schedule II controlled substance. RCW 69.50.206. Finally, Wilson found $497 in cash in Pierce's pocket. The State charged Pierce with unlawful possession of controlled substances; unlawful possession of controlled substances with intent to deliver, including a firearm sentence enhancement; and unlawful use of drug paraphernalia. Trial counsel did not move to suppress any evidence. At trial, Seacrest testified that the marijuana and the pills did not belong to her, but that the methamphetamine did. Pierce testified that neither the pipes nor any of the drugs belonged to him, except the Oxycodone, which had been prescribed for pain. He also stated that he had never seen the small bag Wilson found under the driver's seat.
The jury found Pierce guilty as charged. He appeals.
Pierce contends that his trial counsel provided ineffective assistance when he failed to move to suppress evidence seized during an unlawful search. We agree.
A criminal defendant receives constitutionally inadequate representation where counsel's deficient performance causes prejudice. State v. Stenson, 132 Wn.2d 668, 705-06, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). Prejudice occurs where there is a reasonable probability that the outcome would have differed had the representation been adequate. Stenson, 132 Wn.2d at 705-06.
Both the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington State Constitution prohibit unreasonable searches and seizures. State v. Davis, 86 Wn.
App. 414, 420, 937 P.2d 1110, review denied, 133 Wn.2d 1028 (1997). Warrantless searches of constitutionally protected areas are per se unreasonable. Davis, 86 Wn. App. at 420; State v. Ridgway, 57 Wn. App. 915, 918, 790 P.2d 1263 (1990). In the absence of a search warrant, the burden falls on the State to overcome the presumption of an unreasonable search. State v. McAlpin, 36 Wn. App. 707, 716, 677 P.2d 185, review denied, 102 Wn.2d 1011 (1984).
Only a few jealousy guarded exceptions to the warrant exception exist. State v. Ladson, 138 Wn.2d 343, 349, 979 P.2d 833 (1999). Under one exception, the police may make a warrantless search of a person and his or her belongings after a valid, custodial arrest. State v. Stroud, 106 Wn.2d 144, 147, 720 P.2d 436 (1986). Under this exception, an officer may conduct a warrantless search of an arrestee and the area that was within the arrestee's immediate control at the time of a valid custodial arrest. Stroud, 106 Wn.2d at 147.
When Willms saw what he thought was a gun, Wilson ordered Pierce to step out of the car. A police officer may order a person to get out of the vehicle, regardless of whether the driver is suspected of being armed...
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