State v. Smith

• Decision Date: 28 December 1992
• Docket Number: No. 28923-3-I,28923-3-I
• Citation: 842 P.2d 494,68 Wn.App. 201
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Kevin C. SMITH, Appellant.

Page 201

68 Wn.App. 201

842 P.2d 494

STATE of Washington, Respondent, v. Kevin C. SMITH, Appellant.

No. 28923-3-I.

Court of Appeals of Washington,

Division I.

Dec. 28, 1992.

Elizabeth Govaerts, Seattle, for appellant.

Norm Maleng, Sheri Nakashima, Seattle, for respondent.

FORREST, Judge.

Kevin C. Smith appeals his conviction of possession of marijuana with intent to manufacture or deliver claiming that his conviction should be reversed or dismissed because the trial court failed to enter written findings and conclusions in the CrR 3.6 hearing and because the court erred in denying his motion to suppress. We reverse and dismiss.

On October 3, 1990, King County detective William Quaade received a telephone call from a woman who said she had observed suspicious activity at the house next door. The house had recently been sold and Smith was renting it. The neighbor informed Quaade that the basement windows had been boarded up shortly after the house was rented and that the tenant did not live there but only appeared once every two weeks. The neighbor also observed the electricity meter "turning rapidly." About an hour after this telephone conversation, Quaade and another detective, Mike Orendorff, went to the neighbor's house. While there, the detectives noticed a U-Haul truck parked in the driveway of Smith's house. ¹ The neighbor stated that the truck had pulled up shortly after she finished speaking with Quaade on the telephone.

The detectives were speaking with the neighbor near an open window in her house. While conversing, Orendorff told Quaade he heard the sound of a ballast being moved. ² Orendorff testified he recognized the sound as a result of breaking up approximately 300 marijuana grow operations during his 7 years in the drug enforcement unit. Based on this sound, Orendorff informed Quaade that a marijuana grow operation was being moved next door. Quaade and Orendorff returned to their vehicle and drove into the driveway of Smith's residence. The detectives walked down the driveway and past the side of the house towards the parked U-Haul. As they walked between the house and the truck, they heard activity emanating from the back of the truck.

As Orendorff approached the U-Haul, he smelled marijuana. Orendorff walked between the house and the truck, encountered Smith seated at the back of the truck, and identified himself. Meanwhile, Quaade, unable to squeeze between the truck and the house, approached the truck from the other side. The back of the truck was open. The detectives looked into the truck and saw black plastic, lights, a ballast, and a large number of marijuana plants. Both detectives testified they looked into the truck for the purpose of determining whether anyone was inside. ³

The detectives placed Smith under arrest and asked him if any other persons were present. Smith informed them that a woman was in the basement of the house. The detectives accompanied Smith into the basement and took a woman into custody. The detectives testified they entered the house for the purpose of officer safety.

Quaade drove the U-Haul to the courthouse and placed the contents of the truck into evidence. On January 7, 1991, Smith was charged by information with possession of marijuana with the intent to manufacture or deliver.

The trial court denied Smith's motion to suppress at a CrR 3.6 hearing held on May 13, 1991. The court gave an oral opinion denying the motion, but no findings and conclusions have ever been entered as required by CrR 3.6.

Smith stipulated to the facts and the trial court found him guilty as charged. Smith appeals from the adjudication and a sentence within the standard range.

Smith asserts that the absence of the findings required by CrR 3.6 requires reversal and dismissal. The State concedes error but asserts that the error is harmless. ⁴ In support of this position, the State cites three cases applying CrR 3.6: State v. Clark, ⁵ State v. Stock, ⁶ and State v. Hoffman. ⁷ State v. Hoffman does not support the State's position. In that case, findings were entered after a contested hearing so it was unnecessary to consider whether the appellate court would overlook the absence of findings. The State quotes the following language from the court in Hoffman in support of its position: "While careful adherence to the requirements of CrR 3.6 is always the safest course, the purpose of CrR 3.6 is to have a record made and that purpose has been served here." (Footnote omitted.) Hoffman, 116 Wash.2d at 95, 804 P.2d 577. The State's quotation is taken out of context and its use is misleading. The Hoffman court was responding to the defendant's contention that the delay in entry of findings from the date of the suppression hearing until after the trial was prejudicial. Since no fixed time limit is prescribed for the entry of CrR 3.6 findings, it is hardly surprising that when findings are made at the conclusion of the trial, but well before the appeal, the Supreme Court found no need to reverse. Plainly, Hoffman does not countenance complete failure to ever enter findings.

Likewise, in neither Clark nor Stock did the court indicate that the State may completely disregard the requirements of CrR 3.6 under all circumstances. In Clark, the court chose to overlook the failure to enter findings and conclusions because the trial court's "comprehensive oral opinion and the record of the hearing render[ed] the error harmless." State v. Clark, 46 Wash.App. 856, 859, 732 P.2d 1029 (1987). In Stock, no testimony was taken at the suppression hearing and there were no disputed issues of fact. The only evidence as to whether probable cause to issue the search warrant existed was an affidavit of the officer. Under those circumstances, the court found no prejudice to the defendant from the lack of findings and conclusions and proceeded to review the trial court's oral decision.

In addition to the cases dealing with CrR 3.6, the State also cites four cases ⁸ dealing with CrR 3.5. ⁹ We agree that the State's obligation is similar under both CrR 3.5 and CrR 3.6 and that cases applying CrR 3.5 can furnish appropriate guidance. The courts in the cases cited were willing to overlook the lack of formal findings and address the merits of the suppression or confession issue. But, as was true in the cases involving CrR 3.6, the courts in the CrR 3.5 cases also described the action in terms of "may", clearly indicating the action was a matter of discretion based on the circumstances of the particular case. ¹⁰

From this history, the State has apparently concluded that CrR 3.6 findings are not very important and that if there is an oral opinion, the appellate court will address the merits. ¹¹ We emphatically disagree. The fact that the appellate court has exercised its discretion to overlook the lack of findings in some cases by no means indicates that it will do so routinely.

In any event, all the cases under CrR 3.6, and 3.5 as well, require a clear and comprehensive oral opinion so that the appellate court is left with no doubt as to the court's findings. ¹² Such is not the case here.

The trial court's oral opinion was bifurcated by the lunch recess. In its before-lunch ruling, the court appears to have found that the detectives had probable cause to arrest even before they entered into the curtilage of the Smith property. In the after-lunch portion of the opinion, the court seems to have adopted the State's argument at trial that the detectives had an articulable suspicion which entitled them to approach the defendant at the back of his own property to make a Terry stop. Significantly, in this regard, a trial court is always entitled to change views expressed in an oral opinion upon presentation of the findings of fact. ¹³ Unchallenged formal written findings, however, are treated as definitive for purposes of appeal. ¹⁴

The State rather half-heartedly suggests that the trial court was advancing alternative theories to sustain the search, but this is not clearly apparent. Indeed, the more natural reading of the transcript of the oral ruling is that the court's after-lunch "reasonable grounds for suspicion" analysis was the final basis of the court's ruling.

There are other examples of the lack of clarity and precision in the court's opinion. Prior to the lunch recess, the court stated that the mobility of the U-Haul would constitute exigent circumstances justifying the warrantless seizure, but in the afternoon session the court rejected any finding as to whether the detectives could adequately have sealed off Smith's driveway to prevent him from removing the U-Haul. In the afternoon portion of the opinion, the court appears to have held that the discovery of the items in the truck was an inadvertent discovery incident to a Terry stop and search for a second individual, whereas in the morning it appears that the court felt the seizure of the items in the truck was based on probable cause and the warrant requirement was excused by exigent circumstances. At one point, the court appears to have accepted Orendorff's rather remarkable testimony that he could identify, from the sound alone, that a ballast was being moved and, hence, that part of a marijuana grow operation was being loaded into the truck. However, at another point, the court seemed to treat the noise as merely one factor contributing to the detectives reasonable suspicion. When defendant's counsel was contesting a finding of inadvertent discovery, the court said it did not recall any testimony on the issue but then observed "I guess the record will speak for itself. I have no recollection of that." This court is notobligated to search the record and decide how the trial court would have evaluated that evidence, if it was present.

It is unnecessary to pursue the matter further. We find that the lack of formal findings and conclusions renders us unable to be sure exactly what the court's theory was or exactly what facts the...