State v. Rehn

• Decision Date: 29 May 2003
• Docket Number: No. 21134-7-III.,21134-7-III.
• Citation: 117 Wash.App. 142,69 P.3d 379
• Parties: STATE of Washington, Respondent, v. Jake E.R. REHN, Appellant.
• Court: Washington Court of Appeals

69 P.3d 379

117 Wash.App. 142

STATE of Washington, Respondent, v. Jake E.R. REHN, Appellant.

No. 21134-7-III.

Court of Appeals of Washington, Division 3, Panel Five.

May 29, 2003.

Dennis C. Cronin, David R. Hearrean, Hearrean & Cronin, Spokane, WA, for Appellant.

Clark D. Colwell, Deputy Prosecuting Attorney, Davenport, WA, for Respondent.

BROWN, C.J.

Jake Rehn was convicted at a combined suppression and stipulated facts bench trial of possessing psilocyn mushrooms found in a car in which he was a passenger. On appeal, Mr. Rehn argues the trial court erred in denying suppression of the physical evidence and his statements. We affirm.

FACTS

Mr. Rehn moved to suppress the drug evidence and his statements after being charged with a single count of possessing a controlled substance, psilocyn. The trial court held a combined CrR 3.5/3.6 hearing and stipulated bench trial. The facts are drawn mainly from the undisputed findings of fact and the disputed findings resolved in favor of the State and supported by substantial evidence. See generally State v. Hill, 123 Wash.2d 641, 644-47, 870 P.2d 313 (1994).

Lincoln County Deputy Jeff Conway stopped a vehicle with a loud exhaust driven by Adam Rutherford. Chris Jones sat in the front passenger seat. Mr. Rehn sat in one of the rear seats. Because Mr. Rutherford was driving while his license was suspended, he was arrested. Mr. Jones and Mr. Rehn remained in the car during Mr. Rutherford's search incident to his arrest and placement into the patrol car. During Mr. Rutherford's search, the deputy found a live .22 cartridge.

Concerned about a weapon in the car accessible by the occupants, the deputy decided to search the vehicle for weapons. After asking Mr. Rehn and Mr. Jones to exit the vehicle, Deputy Conway inquired if they had any weapons or if there was a weapon in the vehicle. Both men answered no.

Deputy Conway testified, "I asked if there was anything else in the vehicle that that shouldn't—they shouldn't have." Clerk's Papers (CP) at 73-74. Mr. Rehn responded that there were "`mushrooms'" under the dash of the car. CP at 190. The deputy associated the term "`mushrooms'" with psilocyn or psilocybe hallucinogenics and immediately placed Mr. Rehn under arrest. CP at 190.

Deputy Conway then searched the vehicle incident to the arrest of both Mr. Rutherford and Mr. Rehn. The deputy looked under the dash with his flashlight but was reluctant to reach under the dash with his hands due to the possibility of touching needles or other sharp objects. He did not find the mushrooms.

Deputy Kelly Watkins arrived. The deputies decided to advise Mr. Rehn of his constitutional rights. Deputy Conway testified Mr. Rehn retrieved the mushrooms after he was read his rights, and had waived them. Deputy Conway partly testified:

There's—there was a conversation, and I don't recall if he voluntarily said that he would go up and get—or made the—made the offer. And, I asked him to go ahead and go up and get them.

But it was a—it was—it was a request that he go up and get them. It wasn't an order. I didn't order him to go up there and retrieve the mushrooms.

CP at 102.

Deputy Watkins testified, "And I think prior to reading the the rights, he said something to the effect, that let me show you where they're at because Conway didn't find them." CP at 111. According to Deputy Watkins, Mr. Rehn's statement was not in response to any question. Mr. Jones and Mr. Rehn testified they were not read their rights until after the mushrooms were retrieved; the trial court decided otherwise. The trial court determined Mr. Rehn retrieved the mushrooms from the vehicle, although contradicted by the defense. According to Mr. Rehn, Mr. Rutherford had merely told him about the mushroom location.

Based upon the State's evidence, the trial court decided Mr. Rehn had admitted after having been advised of his rights that he had purchased the mushrooms and had consumed some. Deputy Watkins testified Mr. Rehn admitted consuming mushrooms with Mr. Rutherford. Mr. Rehn testified he had purchased the mushrooms and had given them to Mr. Rutherford, who hid them under the dash of the car.

The trial court found Mr. Rehn guilty and entered written findings of disputed and undisputed facts, and conclusions of law. The trial court imposed a standard range sentence. Mr. Rehn appealed.

ANALYSIS

A. Physical Evidence

The issue is whether the trial court erred in denying suppression of the physical evidence and concluding Mr. Rehn was not unconstitutionally seized under the Washington and United States Constitutions.

This court reviews challenged findings of fact from a suppression hearing for substantial evidence. See Hill, 123 Wash.2d at 644,

870 P.2d 313. Substantial evidence is evidence in the record of a quantity sufficient to persuade a rational fair-minded person of the truth of the finding. Id. Challenged findings of fact supported by substantial evidence are binding on appeal. Id. at 647, 870 P.2d 313; see also State v. O'Neill, 148 Wash.2d 564, 571, 62 P.3d 489 (2003). Similarly, unchallenged findings are verities on appeal. Hill, 123 Wash.2d at 647,

870 P.2d 313; see also O'Neill, 148 Wash.2d at 571,

62 P.3d 489 (overruling cases inconsistent with Hill). The trial court's conclusions of law derived from the findings of fact are subject to de novo review. See State v. Armenta, 134 Wash.2d 1, 9, 948 P.2d 1280 (1997).

Generally, Mr. Rehn's briefing indicates he disagrees with the trial court's finding that he was not detained "except to keep him from the vehicle to be searched." CP at 192. See State v. Neeley, 113 Wash.App. 100, 105, 52 P.3d 539 (2002)

(noting the reviewing court may discern the challenge from the briefing). It appears Mr. Rehn challenges Conclusions of Law 5, 6, and 7 which generally state Mr. Rehn was not detained unreasonably, not under arrest, and not questioned in a custodial setting. These concerns raise the question whether Mr. Rehn, a passenger, was seized in a constitutional sense by the seizure of Mr. Rutherford, the driver.

Regarding whether a person is "seized," article I, section 7 of the Washington Constitution affords greater privacy protection than the Fourth Amendment. State v. Young, 135 Wash.2d 498, 509-10, 957 P.2d 681 (1998). A person is seized when, by means of physical force or a show of authority, the State restrains the person's freedom of movement and "a reasonable person would not have believed he or she is (1) free to leave, given all the circumstances ... or (2) free to otherwise decline an officer's request and terminate the encounter." O'Neill, 148 Wash.2d at 574, 62 P.3d 489 (citations omitted). The standard is "`a purely objective one, looking to the actions of the law enforcement officer.'" Id. (quoting Young, 135 Wash.2d at 509, 957 P.2d 681) (emphasis added)). Mr. Rehn bears the burden of proving he was seized in violation of article I, section 7. O'Neill, 148 Wash.2d at 574, 62 P.3d 489.

Drivers are generally considered seized when the subject of a traffic stop. But, a passenger's status has not received uniform treatment: "Whether pretextual or not, a traffic stop is a `seizure' for the purpose of constitutional analysis, no matter how brief." State v. Ladson, 138 Wash.2d 343, 350, 979 P.2d 833 (1999). On the other hand, our Supreme Court has reasoned also: "Stopping the car in which [the defendant] was a passenger did not effect a seizure of [the defendant] or the other passengers." State v. Mendez, 137 Wash.2d 208, 222, 970 P.2d 722 (1999).

Apparently, barring exceptional circumstances, a passenger is free to walk away from or stay at the traffic stop scene. In one exceptional circumstance, the Supreme Court noted the defendant passenger "was seized when the deputy directed him to remain in the vehicle." State v. Reynolds, 144 Wash.2d 282, 286 n. 2, 27 P.3d 200 (2001) (citing Mendez, 137 Wash.2d at 222-23, 970 P.2d 722).

In Ladson, a passenger case, the Supreme Court held the traffic stop was a seizure for purposes of analyzing Mr. Ladson's claim of a violation of article I, section 7. Ladson, 138 Wash.2d at 346-47, 350, 979 P.2d 833. See State v. Larson, 93 Wash.2d 638, 645, 611 P.2d 771 (1980)

(invalid traffic stop constituted an unlawful seizure of the defendant passenger). An invalid stop, pretext or not, may be the common link between Ladson and Larson. Here, the stop is not challenged.

In any event, after Ladson, and referring to personal articles (a purse) belonging to a passenger, the Supreme Court reasoned "vehicle passengers hold an independent, constitutionally protected privacy interest." State v. Parker, 139 Wash.2d 486, 496, 987 P.2d 73 (1999). "This interest is not diminished merely upon stepping into an automobile with others." Id. In Parker, a search incident to the driver's arrest was not a circumstance that resulted in lawful authority to search Ms. Parker's purse within the passenger compartment of the car. Id. at 502-03, 987 P.2d 73.

Division One of this court recently held an automobile passenger had standing to contest the lawfulness of the stop, reasoning:

Certainly passengers as well as the driver are "seized" when a vehicle is stopped by police officers. Without the stop, the passengers would not be present to be subjected to further police scrutiny and control. The stop necessarily involves the privacy rights of the passenger. Thus, a passenger in a vehicle stopped by police officers can contest the lawfulness of the stop.

State v. Byrd, 110 Wash.App. 259, 264, 39 P.3d 1010 (2002) (citing Ladson, 138 Wash.2d at 350,979 P.2d 833; Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979)). Two decades earlier, Division Two of this court arrived at a very similar conclusion, reasoning, "Although [the defendant] [w]as a mere passenger ... he was as effectively restrained from leaving the scene as the person sitting in the driver's seat."

State v. Stroud, 30 Wash.App. 392, 396, 634 P.2d 316 (198...