State v. Reichenbach

• Decision Date: 24 November 2004
• Docket Number: No. 74331-2.,74331-2.
• Citation: 101 P.3d 80,153 Wash.2d 126
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Steven I. REICHENBACH, Petitioner. In the Matter of the Personal Restraint Petition of Steven Reichenbach, Petitioner.

101 P.3d 80

153 Wash.2d 126

STATE of Washington, Respondent, v. Steven I. REICHENBACH, Petitioner.

In the Matter of the Personal Restraint Petition of Steven Reichenbach, Petitioner.

No. 74331-2.

Supreme Court of Washington, En Banc.

November 24, 2004.

R.A. Lewis, Camas, David Schultz, Kirkland, for Petitioner.

Peter S. Banks, Stevenson, for Respondent.

MADSEN, J.

Steven Reichenbach challenges the Court of Appeals decision affirming his conviction on one count of possession of methamphetamine. Reichenbach contends that he received ineffective assistance of counsel when counsel failed to move to suppress evidence of the drugs. We conclude that police officers illegally seized the baggie of methamphetamine at issue and that counsel rendered ineffective assistance when he failed to move for suppression of the methamphetamine. We reverse the Court of Appeals.

FACTS

In early February 2001, Monte Buettner, Skamania County Sheriff's Detective, received a call from Richard Seaman. Seaman indicated to Buettner that his landlord, Reichenbach, was forcing him to drive to Vancouver so that Reichenbach could purchase narcotics. Seaman asked Buettner for advice and Buettner instructed Seaman to contact him when Seaman was planning another trip to Vancouver with Reichenbach. Thereafter, Seaman contacted Buettner several times, informing Buettner that he was driving Reichenbach to Vancouver and suggesting that Buettner stop and search Seaman's car during these trips. Buettner took no action.

On March 1, 2001, Seaman again called Buettner, informing him that he would be driving Reichenbach to Vancouver to purchase methamphetamine. Based on his contact with Seaman, Buettner obtained a search warrant for Seaman's car and Reichenbach's person.

Seaman called Buettner from Vancouver twice, indicating that Reichenbach had been unable to purchase methamphetamine and that he was not sure whether Reichenbach would be able to do so. Buettner did not inform the judge who issued the warrant of Seaman's calls.

That afternoon, Buettner staged an accident on Highway 14 to block Seaman's car. Buettner did not inform Seaman of his plan. According to Seaman, Reichenbach was trying to tear a baggie of methamphetamine in half as Seaman's car arrived at the accident scene. Police officers approached the vehicle and ordered Reichenbach to raise his hands at gunpoint. Reichenbach dropped his left hand twice around his hip area before complying with the order. One of the police officers removed Reichenbach from the car and searched it. Officers discovered the baggie of methamphetamine on the floor near the left side of the passenger seat where Reichenbach had been sitting.

Reichenbach was charged by information with possession of methamphetamine. Although Reichenbach was represented, his attorney did not challenge seizure of the baggie. Reichenbach was convicted and sentenced. He then appealed. While his direct appeal was pending, Reichenbach filed a personal restraint petition, asserting that he received ineffective assistance of counsel based on counsel's failure to move for suppression of the drugs found in the search of Seaman's vehicle. The direct appeal and personal restraint petition were consolidated and the Court of Appeals ordered a reference hearing on whether the search warrant was valid at the time of its execution and whether the seizure of the drugs could be justified on any other ground. The trial court determined that the search warrant was invalid at the time of its execution, concluding that probable cause was lost when Seaman advised Buettner that he was not sure whether Reichenbach could obtain methamphetamine. Nevertheless, the trial court ruled that the seizure was justified based on Seaman's consent to search.

The Court of Appeals affirmed. State v. Reichenbach, noted at 117 Wash.App. 1054, 2003 WL 21529017, review granted, 151 Wash.2d 1001, 87 P.3d 1185 (2004). The court rejected Reichenbach's claim of ineffective assistance of counsel raised in his personal restraint petition, holding that Reichenbach was not prejudiced by counsel's failure to move to suppress the baggie of methamphetamine because the seizure was justified by Seaman's consent. The court also rejected the remaining claims raised in the direct appeal. Reichenbach filed this petition for review.

ANALYSIS

The only issue before this court is whether Reichenbach received ineffective assistance of counsel when his attorney failed to move to suppress the methamphetamine that police found in the search of Seaman's vehicle. In order to show that he received ineffective assistance of counsel, Reichenbach must show (1) that defense counsel's conduct was deficient, i.e., that it fell below an objective standard of reasonableness; and (2) that the deficient performance resulted in prejudice, i.e., that there is a reasonable possibility that, but for the deficient conduct, the outcome of the proceeding would have differed. State v. Thomas, 109 Wash.2d 222, 225-26, 743 P.2d 816 (1987) (adopting test from Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

There is a strong presumption that defense counsel's conduct is not deficient. State v. McFarland, 127 Wash.2d 322, 335, 899 P.2d 1251 (1995). However, there is a sufficient basis to rebut such a presumption where there is no conceivable legitimate tactic explaining counsel's performance. State v. Aho, 137 Wash.2d 736, 745-46, 975 P.2d 512 (1999). Here, the baggie of methamphetamine was the most important evidence the State offered yet counsel did not challenge its admissibility despite serious questions about the validity of the warrant upon which the search was based. As the Court of Appeals held, the warrant was invalid at the time of its execution because information from Seaman, acquired after the warrant was issued but before its execution, negated probable cause. This argument was available to counsel and his failure to challenge the search based upon an invalid warrant cannot be explained as a legitimate tactic. Thus, as the trial court found and the Court of Appeals concluded, counsel's conduct was deficient.

Next, we consider whether counsel's deficient performance resulted in prejudice. As a general rule, warrantless searches and seizures are per se unreasonable. State v. Williams, 102 Wash.2d 733, 736, 689 P.2d 1065 (1984). However, there are a few "jealously and carefully drawn exceptions" to the warrant requirement, including consent. State v. Hendrickson, 129 Wash.2d 61, 70-71, 917 P.2d 563 (1996) (quoting State v. Bradley, 105 Wash.2d 898, 902, 719 P.2d 546 (1986) (citing Coolidge v. New Hampshire, 403 U.S. 443, 454, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971))). The State must meet three requirements in order to show a valid consensual search: (1) the consent must be voluntary, (2) the person granting consent must have authority to consent, and (3) the search must not exceed the scope of the consent. State v. Thompson, 151 Wash.2d 793, 803, 92 P.3d 228 (2004); State v. Nedergard, 51 Wash.App. 304, 308, 753 P.2d 526 (1988).¹ Here, Seaman had authority to consent because the car belonged to him. Thus, we examine only whether the first and third requirements were satisfied.

Whether consent is voluntary is a question of fact (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)) and depends upon the totality of the circumstances, including (1) whether Miranda warnings were given prior to obtaining consent, (2) the degree of education and intelligence of the consenting person, and (3) whether the consenting person was advised of his right not to consent. State v. Bustamante-Davila, 138 Wash.2d 964, 981-82, 983 P.2d 590 (1999); State v. Shoemaker, 85 Wash.2d 207, 212, 533 P.2d 123 (1975). While knowledge of the right to refuse consent is relevant, it is not a prerequisite to finding voluntary consent, however. State v. O'Neill, 148 Wash.2d 564, 588, 62 P.3d 489 (2003); State v. Nelson, 47 Wash.App. 157, 163, 734 P.2d 516 (1987). In addition, the court may weigh any express or implied claims of police authority to search, previous illegal actions of the police, the defendant's cooperation, and police deception as to identity or purpose. State v. Flowers, 57 Wash.App. 636, 645, 789 P.2d 333 (1990).

Here, Seaman repeatedly suggested to Buettner that he stop and search his car during his trips with Reichenbach to Vancouver. Buettner instructed Seaman to advise him when a trip to Vancouver was planned, so that Buettner could stop and search Seaman's car. On March 1, 2001, Seaman did contact Buettner, giving Buettner another opportunity to stop Seaman's car. Although Buettner did not inform Seaman of his plan to stop his car, the record shows that Seaman was at no point under pressure to consent to the search of his car. Under these circumstances, Seaman consented to Buettner's search. He knew that he was free to refuse consent by opting not to call Buettner. While Seaman's educational background is unclear, his decision to report his dealings with Reichenbach demonstrates intelligence. Moreover, Seaman was cooperating with the police. When Seaman called Buettner on March 1, 2001, Buettner did not attempt to coerce or deceive Seaman. Finally, Seaman testified during the reference hearing that he had consented to the search of his vehicle. Based on the totality of circumstances, we conclude that Seaman voluntarily consented to the search of his car.

The next question is whether the search of Seaman's vehicle exceeded the scope of Seaman's consent. A consensual search may go no further than the limits for which the consent was given. Bustamante-Davila, 138 Wash.2d at 981,983 P.2d 590; State v. Jensen, 44 Wash.App. 485, 491, 723 P.2d 443 (1986). Any express or implied limitations or qualifications may reduce the scope of consent in duration, area, or intensity. State v. Cotten, 75 Wash.App. 669, 679, 879 P.2d 971 (1994). Relying on Cotten, Reichenbach...