State v. Reyes

• Decision Date: 21 January 2000
• Docket Number: No. 22766-5-II.,22766-5-II.
• Citation: 993 P.2d 921,98 Wash.App. 923
• Parties: STATE of Washington, Respondent, v. Tomas Z. REYES, Appellant.
• Court: Washington Court of Appeals

993 P.2d 921

98 Wash.App. 923

STATE of Washington, Respondent, v. Tomas Z. REYES, Appellant.

No. 22766-5-II.

Court of Appeals of Washington, Division 2.

January 21, 2000.

Linda Jeanne Whitt, Whitt & Associates, Olympia, for Appellant.

William J. Halstead, Thurston County Pros. Atty., Olympia, for Respondent.

SEINFELD, J.

Tomas Z. Reyes appeals his conviction for unlawful possession of a controlled substance. The trial court admitted the drug evidence obtained from Reyes' person pursuant to an illegal search, relying on the inevitable discovery rule. Because the State failed to produce sufficient evidence of the reasonableness of the officer's actions and the inevitability of the discovery, we reverse.

FACTS

The State charged Reyes with the unlawful possession of a controlled substance, cocaine, RCW 69.50.401(d). Following a CrR 3.6 suppression hearing, the trial court entered findings, summarized below.

Based upon information from several known drug users, other contacts, and their own personal observations, City of Olympia police officers Beckwell and Jelcick believed that restaurant owner Reyes and his employees might be conducting narcotics transactions in the restaurant's kitchen, which is accessible through an alley-way door. Acting on this information, the officers observed the restaurant from across the street one evening.

Although neither officer could see the kitchen's alley door from their vantage point, they did see some men who appeared to use that access to enter and leave the kitchen in a manner consistent with the drug dealing reports. They also saw one of Reyes' employees peer from a restaurant window as if acting as a lookout. Then the officers saw Reyes and another man close the restaurant and get into an automobile; Reyes sat in the driver's seat. At that time, the officers knew Reyes had a suspended driver's license.

The officers radioed dispatch and asked for a license check on Reyes' vehicle, and then they approached Reyes to talk about his suspended license and the suspected drug activity at the restaurant. The car's engine was not running. As the officers approached, Reyes exited the vehicle and walked toward them.

After exchanging greetings and a bit of small talk, Beckwell asked Reyes if he had any weapons or narcotics on his person. When Reyes stated that he did not, Beckwell asked Reyes if he could search him "for weapons or narcotics." Reyes consented.

Beckwell said he based his search on his training and experience, which indicated to him that drug users regularly carry weapons. Beckwell explained that when contacting people in connection with narcotics trafficking he regularly asks those people for permission to search them for weapons because of safety concerns and for drugs.

During the search, Beckwell found a small plastic bindle in Reyes' right front change pocket containing a white powder substance that a later laboratory test confirmed to be cocaine. Beckwell then arrested Reyes but did not advise him of his Miranda¹ rights at that time. Following the arrest, dispatch informed the officers that there was an outstanding warrant for Reyes in Thurston County. At the CrR 3.6 hearing, the State did not contend that the officers had conducted a valid Terry search.² Rather, it argued that Reyes had consented to the search and that, in any event, discovery of the drugs was inevitable given that the officers soon learned of the outstanding warrant.

The trial court ruled that the search exceeded the permissible scope of a Terry stop because the officers did not limit their search to weapons. It further found that the State had failed to show that Reyes had voluntarily consented to the search. However, citing State v. White, 76 Wash.App. 801, 809, 888 P.2d 169 (1995), aff'd, 129 Wash.2d 105, 915 P.2d 1099 (1996), the court concluded that the discovery of the drug evidence was inevitable. Thus, it denied the motion to suppress and subsequently found Reyes guilty following a bench trial on stipulated facts. Reyes now appeals.

I. INEVITABLE DISCOVERY RULE

The State concedes that the seizure of the cocaine from Reyes was illegal. Thus, our application of the inevitable discovery rule is dispositive.

Reyes, citing State v. Gunwall, 106 Wash.2d 54, 58, 720 P.2d 808, 76 A.L.R.4th 517 (1986), argues that the Washington Constitution requires that the State prove the applicability of the inevitable discovery doctrine by clear and convincing evidence. The State, relying on State v. Richman, 85 Wash. App. 568, 933 P.2d 1088, review denied, 133 Wash.2d 1028, 950 P.2d 478 (1997), contends that the State need produce only a preponderance of evidence. We agree.

A review of the inevitable discovery rule's history aids in understanding the proper burden of proof and in applying it to the facts. Seventeen years ago, Justice Dolliver, in a dissenting opinion, proposed that Washington adopt the inevitable discovery rule. State v. Broadnax, 98 Wash.2d 289, 309, 654 P.2d 96 (1982). Justice Dolliver proposed that the court apply the rule only where the State has satisfied the following three-part test: "(1) The police did not act unreasonably or to accelerate the discovery of the evidence in question; (2) proper and predictable investigatory procedures would have been utilized; and (3) those procedures would have inevitably resulted in the discovery of the evidence in question." Broadnax, 98 Wash.2d at 309, 654 P.2d 96 (Dolliver, J.— dissenting).

Two years later, the United States Supreme Court adopted the inevitable discovery rule in Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). The Nix court simply held that the inevitable discovery rule applies if the "prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means." 467 U.S. at 444, 104 S.Ct. 2501.

Division One of this court adopted the rule as set forth in Nix but also added Justice Dolliver's three-part Broadnax test. White, 76 Wash.App. at 808-09, 888 P.2d 169.³ The section in White relating to inevitable discovery is dicta; the White court had already determined the challenged search to be valid under the Fourth Amendment,⁴ and then added that had the search been unreasonable, the evidence would have been admissible under the inevitable discovery doctrine. 76 Wash.App. at 808, 888 P.2d 169.

Seventeen days after Division One decided White, the Washington Supreme Court also adopted the Nix rule but, in contrast to White, did not adopt the Broadnax criteria. State v. Warner, 125 Wash.2d 876, 889, 889 P.2d 479 (1995). Warner also adopted the preponderance standard set forth in Nix. Warner, 125 Wash.2d at 889,889 P.2d 479. The Warner court added: "Absolute inevitability of discovery is not required but simply a reasonable probability that evidence in question would have been discovered other than from the tainted source." 125 Wash.2d at 889,889 P.2d 479 (citing United States v. Brookins, 614 F.2d 1037 (5th Cir.1980)).

Division One recently revisited the inevitable discovery rule, applied the six Gunwall factors, and concluded that it was appropriate to conduct an independent state constitutional analysis. Richman, 85 Wash.App. at 573-74, 933 P.2d 1088. The Richman court then found the inevitable discovery doctrine valid under article I, section 7 of the Washington State Constitution.⁵ Richman, 85 Wash.App. at 578, 933 P.2d 1088. The Richman court noted that the Warner court adopted the inevitable discovery rule pursuant to federal case law only, Warner, 125 Wash.2d at 889, 889 P.2d 479, but doubted that "the Warner court would have so sanctioned the rule if it perceived state constitutional defects." Richman, 85 Wash.App. at 574 n. 4, 933 P.2d 1088.

In arriving at its holding, the Richman court, citing Nix, 467 U.S. at 443-44, 104 S.Ct. 2501, noted the strong similarity between the independent source doctrine and the inevitable discovery rule. 85 Wash.App. at 575-76, 933 P.2d 1088. The Richman court also observed that the independent source doctrine, as articulated by the federal courts, is consistent with article I, section 7. 85 Wash.App. at 575, 933 P.2d 1088; see also State v. Ludvik, 40 Wash.App. 257, 263, 698 P.2d 1064 (1985). Consequently, the Richman court concluded that under article I, section 7, it could see "no principled difference between the inevitable discovery rule and the independent source doctrine." 85 Wash.App. at 576, 933 P.2d 1088.

Accordingly, the Richman court held that the inevitable discovery rule as set forth by the federal courts, Justice Dolliver's dissent in Broadnax, 98 Wash.2d at 309, 654 P.2d 96, and Division One in White, 76 Wash.App. at 809, 888 P.2d 169, "contains adequate safeguards to ensure that police misconduct does not erode the privacy protections provided by article 1, section 7." 85 Wash.App. at 577, 933 P.2d 1088. The Richman court further held that under the inevitable discovery doctrine, illegally obtained evidence is admissible "only when the State can prove that the evidence would have been inevitably discovered under proper and predictable investigatory procedures." 85 Wash.App. at 577, 933 P.2d 1088 (citing White, 76 Wash.App. at 809, 888 P.2d 169). "The State must prove this inevitability by a preponderance of the evidence." Richman, 85 Wash.App. at 577, 933 P.2d 1088 (citing Warner, 125 Wash.2d at 889, 889 P.2d 479); see also Nix, 467 U.S. at 444, 104 S.Ct. 2501 (cited in Warner, 125 Wash.2d at 889, 889 P.2d 479).

The Richman court reasoned that the reasonableness prong of Broadnax was particularly appropriate in light of the "enhanced privacy concerns" addressed under article I, section 7. Richman, 85 Wash.App. at 577, 933 P.2d 1088. "Under article I, section 7, determining whether a particular privacy interest was unduly invaded requires consideration of whether the privacy expectation is objectively reasonable, and also whether it is one that has been...