State v. Thang

• Decision Date: 07 March 2002
• Docket Number: No. 70636-1.,70636-1.
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Vy THANG, Petitioner.

41 P.3d 1159

145 Wash.2d 630

STATE of Washington, Respondent, v. Vy THANG, Petitioner.

No. 70636-1.

Supreme Court of Washington, En Banc.

Argued September 20, 2001.

Decided March 7, 2002.

Eric Broman, Eric J. Nielsen, David Bruce Koch, Seattle, for Petitioner.

Steven Tucker, Spokane County Prosecutor, Kevin Michael Korsmo, Deputy Cty. Prosecutor, for Respondent.

CHAMBERS, J.

We are asked to review (1) the scope of privacy rights of a guest whose host consents to a search of the premises and (2) the admissibility of prior bad acts under the identity prong of ER 404(b). Petitioner Vy Thang claims that evidence obtained during the search of an apartment where he was residing as a guest should have been suppressed, and that testimony concerning prior bad acts should not have been admitted. We hold that the search was constitutional, but that the admission of the prior bad act was error, and we reverse.

In August 1997, Thang and Simeon Terry, residents of the Maple Lane juvenile facility, escaped while on a field trip to a Seattle Seahawks game. They traveled to Spokane, where they stayed with various friends of Terry, eventually spending a few days with Jess Dietzen and Sean Lambert. Arrest warrants for the escape naming Thang and Terry were outstanding.

On September 2, 1997, John Klaus found his 85-year-old mother, Mildred, in Spokane lying dead on the floor of her home in a pool of blood. She had died from blunt impact injuries. The house was in disarray and it appeared that some of her personal possessions were missing. Her purse was later found on the roof of a neighboring building. Shortly afterwards, the police learned that possible escapees were residing at the Dietzen apartment. Warrants for the arrest of Thang and Terry were outstanding.

The police went to the Dietzen apartment, without warrants in hand, and arrested Terry and Thang. Thang was subsequently found guilty of first degree murder and sentenced to life imprisonment without the possibility of parole. On appeal Thang claimed, among other things, that the trial court erred in failing to suppress evidence obtained during the search of an apartment where he was staying and in admitting evidence of other bad acts. The Court of Appeals affirmed the trial court. We will examine these two contentions in order.

VALIDITY OF THE SEARCH

The police knew that arrest warrants for escape were outstanding for Terry and Thang, but did not have the warrants in their possession when they went to the Dietzen apartment. They suspected Terry and Thang may have been involved in the Klaus murder, but did not have sufficient probable cause for a warrant. Terry and Thang had been guests in Dietzen's apartment for several days. Upon arrival, the officers asked Dietzen for permission to enter the apartment to arrest Terry and Thang. Dietzen consented, and Thang and Terry were arrested in the living room. After the arrest, the police secured written permission from both tenants of the apartment for a search of the common areas. The police found women's jewelry in the bathroom garbage can and various items of women's clothing in a rollerblade bag in the hallway. The garbage can also contained a bloodied pair of socks. In preparation for transport, Thang identified his shoes, and later the police took possession of them. The DNA (deoxyribonucleic acid) from a blood spot on one of the tennis shoes and the bloodstains on a sock matched that of Mildred Klaus. Over Thang's objection, evidence obtained from the search was admitted at his trial.

The Fourth Amendment provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause[.]" Article 1, section 7 of the Washington Constitution provides: "No person shall be disturbed in his private affairs, or his home invaded, without authority of law." Together, these provisions provide a bulwark against governmental intrusions into homes. Thang contends that he had been staying as a guest in the apartment for approximately a week and had a protected expectation of privacy in the common areas of the apartment. He also contends that this was a warrantless search and, under State v. Ferrier, 136 Wash.2d 103, 960 P.2d 927 (1998) and the "knock and talk" rule, the police were obligated to advise Dietzen and Lambert of their right to refuse permission. Thang concludes that without being advised of their right to refuse, both the consent to arrest and the written consent of Dietzen and Lambert were not voluntary and therefore invalid.

The State asserts that Thang was not entitled to an expectation of privacy. He was, after all, just a temporary guest in the Dietzen and Lambert apartment and could not have a reasonable expectation of privacy superior to that of his hosts. The State further argues that Thang had no right to be in the Spokane apartment at all; his only rightful location was in his cell, where he would have no right to privacy in his personal belongings. In re Pers. Restraint of Benn, 134 Wash.2d 868, 909, 952 P.2d 116 (1998), habeas corpus granted on other grounds sub nom. Benn v. Wood, 2000 WL 1031361, at *5. The Court of Appeals agreed with the State on this latter point. The Court of Appeals, relying on other jurisdictions, adopted the escapee rule to support Thang's lessened expectation of privacy, concluding that Thang had no right to be anywhere other than his place of commitment and was no more than a trespasser at the time of his arrest.

First, Thang's reliance on Ferrier is misplaced, because here the police did not employ a "knock and talk" procedure. In a "knock and talk," the goal of the police is to search for contraband without first obtaining a warrant. They knock on a suspect's door, obtain the resident's permission to enter to discuss a complaint, and subsequently ask permission to search the premises. Ferrier, 136 Wash.2d at 107, 960 P.2d 927.

The Ferrier Court held that because a "knock and talk" is inherently coercive, failure to advise a defendant of the right to refuse entry violates the right to privacy granted by article I, section 7 of Washington's Constitution and therefore vitiates the consent to search. Ferrier, 136 Wash.2d at 114-15, 960 P.2d 927. However, when the state is not employing the "`knock and talk'" procedure, the court employs a "`totality of circumstances'" test to determine whether consent to search is valid. State v. Bustamante-Davila, 138 Wash.2d 964, 981, 983 P.2d 590 (1999). Factors to consider are the education and intelligence of the consenting person, whether Miranda (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)) warnings were given prior to consent, and whether the person was advised of his right to consent. Bustamante-Davila, 138 Wash.2d at 981-82, 983 P.2d 590. No one factor is dispositive. Id. at 982, 983 P.2d 590.

Here, although Dietzen and Lambert were not informed of their right to refuse entry to the apartment, the police did not draw weapons or order the residents of the apartment to open the door, and the police encountered no objection to their entry. Moreover, unlike the situation in Ferrier, where the police sought a pretext to search the premises, arrest warrants were outstanding for Terry and Thang. Therefore, on balance, we conclude the search is valid.

Second, the Court of Appeals correctly observed that no Washington court has considered an escapee's expectation of privacy and therefore no Washington Court has adopted the escapee rule. We decline to do so in this case.¹ Moreover, by applying ordinary constitutional principles, we arrive at the same conclusion; Thang had no reasonable expectation of privacy to the areas searched.²

This Court has held that the subject of an arrest warrant has no greater protection in his host's residence than he would have at home. State v. Williams, 142 Wash.2d 17, 23-24, 11 P.3d 714 (2000). "`[A]n arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.'" Id. at 24, 11 P.3d 714, (quoting Payton v. New York, 445 U.S. 573, 603, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)). Moreover, Thang's hosts granted permission to enter their home.

Fourth Amendment protections against unreasonable searches and seizures are personal. State v. Walker, 136 Wash.2d 678, 684-85, 965 P.2d 1079 (1998). Thus, Thang must establish a personal right of privacy in order to challenge his arrest. A guest's expectation of privacy may be vitiated by consent of another resident. State v. Rodriguez, 65 Wash.App. 409, 828 P.2d 636, review denied, 119 Wash.2d 1019, 838 P.2d 692 (1992). In Rodriguez, the defendant was staying with his mother, who gave the police permission to enter the apartment to look for him. The police found him in the bathroom. The court determined that the mother's consent was sufficient and the police lawfully arrested the defendant:

[S]ince he was only sharing the home, his expectation was not absolute. A host or third party who has dominion and control over the premises may consent to a search, whether it is for purposes of arrest or seizure of evidence.

Rodriguez, 65 Wash.App. at 414-15, 828 P.2d 636.

When one party consents to a warrantless search but another who has equal use and control of the premises objects, the consent is invalid. State v. Leach, 113 Wash.2d 735, 744, 782 P.2d 1035 (1989). Thang asserts that he had superior control because the police were seeking his possessions. However, Thang's socks were found in the communal garbage, and consent to search by a host is always effective against a guest within the common areas of the premises. 3 Wayne R. LaFave, Search and Seizure § 8.5(d), at 794-95 (3d ed.1996); Leach, 113 Wash.2d at 739, 782 P.2d 1035. We therefore conclude that Dietzen's and Lambert's...