State v. Vanhollebeke

• Decision Date: 13 December 2016
• Docket Number: No. 33427-9-III,33427-9-III
• Citation: 387 P.3d 1103,197 Wash.App. 66
• Parties: State of Washington, Respondent, v. Justin Dean Vanhollebeke, Appellant.
• Court: Washington Court of Appeals

197 Wash.App. 66

387 P.3d 1103

State of Washington, Respondent,

v.Justin Dean Vanhollebeke, Appellant.

No. 33427-9-III

Court of Appeals of Washington, Division 3.

December 13, 2016

Andrea Burkhart, Burkhart & Burkhart PLLC, 6 1/2 N. 2nd Ave., Ste. 200, Walla Walla, WA, 99362-1855, for Appellant.

Randy J. Flyckt, Felicity Abigail Mir Chamberlain, Adams County Prosecutor's Office, 210 W. Broadway, Ritzville, WA, 99169-1860, for Respondent.

OPINION PUBLISHED IN PART

Lawrence-Berrey, J.¶1 Justin Vanhollebeke appeals his conviction for first degree unlawful possession of a firearm. He argues (1) the warrantless search of the borrowed truck he was driving was unconstitutional because he refused to consent to the search, (2) the officers exceeded the lawful scope and purpose of the Terry¹ stop, (3) he did not knowingly and voluntarily waive his Miranda² rights, (4) the trial court abused its discretion when it declined to give his proposed missing witness instruction, (5) insufficient evidence supports the sentencing court's finding that he had the ability to pay legal financial obligations (LFOs), and (6) the State failed to prove his offender score by a preponderance of the evidence. In his statement of additional grounds for review (SAG), he argues the dash camera videos from the officers' patrol cars should have been introduced at trial and the trial court did not allow defense counsel to investigate or present his case.

¶2 In the published portion of this opinion, we hold that a vehicle owner's consent to search overrides the borrower's express objection. In the unpublished portion of this opinion, we agree the State failed to prove Mr. Vanhollebeke's offender score by a preponderance of the evidence, but disagree with his remaining arguments. Accordingly, we affirm Mr. Vanhollebeke's conviction but remand for a new sentencing hearing.

FACTS

¶3 On the night of November 10, 2014, Sergeant Aaron Garza was on patrol when he noticed a truck that was facing the wrong way on a one-way street. At 11:23 p.m., Sergeant Garza pulled the truck over. As Sergeant Garza was giving the truck's description and license plate number to dispatch, Mr. Vanhollebeke stepped out of the driver's side door. Sergeant Garza ordered Mr. Vanhollebeke to get back in the truck and then called for backup. Mr. Vanhollebeke got back in the truck.

¶4 Sergeant Garza got out of his patrol car and approached the truck. Mr. Vanhollebeke got out of the truck again and started walking toward Sergeant Garza. Sergeant Garza again ordered Mr. Vanhollebeke to get back in the truck. Mr. Vanhollebeke then said he had locked himself out of the truck. This unusual behavior made Sergeant Garza suspicious.

¶5 Sergeant Garza talked with Mr. Vanhollebeke near the side of the truck. At this point, Deputy Darryl Barnes and Officer Adam Lattin arrived. Mr. Vanhollebeke told Sergeant Garza he did not have a license or identification, but gave his name and date of birth. The other officers stayed with Mr. Vanhollebeke at the side of the truck while Sergeant Garza gave Mr. Vanhollebeke's information to dispatch.

¶6 Dispatch advised that Mr. Vanhollebeke's license was suspended. Dispatch also advised that Mr. Vanhollebeke was not the registered owner of the truck, and that the truck belonged to a man named Bill Casteel. This was around 15 to 20 minutes after Sergeant Garza initially stopped Mr. Vanhollebeke. Sergeant Garza's plan at this point was to cite Mr. Vanhollebeke for driving with a suspended license and then release him.

¶7 Sergeant Garza went to his car and began writing Mr. Vanhollebeke a citation with dispatch providing him Mr. Vanhollebeke's information. This made the process take longer than usual. While Sergeant Garza was writing the citation, Deputy Barnes did a cursory safety sweep of the truck. He noticed a glass pipe with a white crystal substance on it sitting in plain view near the dashboard, which he believed was drug paraphernalia. Deputy Barnes also noticed the truck's steering column was "punched," which indicated the truck was stolen.³ Report of Proceedings (RP) at 106.

¶8 Deputy Barnes went to Sergeant Garza's car and told him about the pipe and the punched ignition. In light of this information, Sergeant Garza believed Mr. Vanhollebeke may have committed a possession of a controlled substance offense as well as a vehicle theft offense. He believed these new offenses took priority over the driving while suspended citation. Because of these suspicions, Sergeant Garza decided not to let Mr. Vanhollebeke go.

¶9 The officers asked for permission to search the truck. Mr. Vanhollebeke refused. Sergeant Garza attempted to contact Mr. Casteel on the telephone but was unsuccessful. Because the officers had Mr. Casteel's address, Deputy Barnes volunteered to drive to Mr. Casteel's home, which was between 18 and 25 miles away. Deputy Barnes drove straight there and arrived around 12:14 a.m. Mr. Casteel told Deputy Barnes that Mr. Vanhollebeke had permission to use the truck. Mr. Casteel gave permission to search his truck and gave Deputy Barnes a key to it.

¶10 Deputy Barnes returned directly to the scene and arrived around 12:30 or 12:40 a.m. He gave Sergeant Garza the key and advised that Mr. Casteel gave the officers permission to search the truck. Sergeant Garza used the key to open the truck and began to search it. He looked under the driver's seat and saw a revolver. The glass pipe tested positive for methamphetamine. The officers confirmed through dispatch that Mr. Vanhollebeke had a prior felony conviction.

¶11 The State charged Mr. Vanhollebeke with first degree unlawful possession of a firearm. Mr. Vanhollebeke moved to suppress the physical evidence on the grounds that he had refused to give the officers consent to search the truck and also that the stop's length and scope were unreasonable. The trial court found that the physical evidence was admissible and denied Mr. Vanhollebeke's motion.

¶12 The jury convicted Mr. Vanhollebeke. Mr. Vanhollebeke appeals.

ANALYSIS

¶13 Mr. Vanhollebeke argues the search of the truck was unconstitutional because he had legitimate coauthority over the truck and he objected to the search. This court reviews constitutional issues de novo. State v. Budd, 185 Wash.2d 566, 571, 374 P.3d 137 (2016).

¶14 The Fourth Amendment to the United States Constitution guarantees people the right to be free from unreasonable searches and seizures. U.S. CONST. amend. IV. Warrantless searches are generally illegal unless they fall within one of the exceptions to the warrant requirement. State v. Cantrell, 124 Wash.2d 183, 187, 875 P.2d 1208 (1994). One exception is consent to search by a person with authority over the place or thing to be searched. Id. This exception includes consent given by a third person, other than the defendant. Id. at 188, 875 P.2d 1208.

¶15 To grant valid consent, the third party must have common authority over the place or thing to be searched. Id. Common authority does not mean that the third party has a mere property interest in the place or thing being searched. United States v. Matlock, 415 U.S. 164, 171 n.7, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). Rather, "[t]o establish lawful consent by virtue of common authority: (1) ‘a consenting party must be able to permit the search in his own right’ and (2) ‘it must be reasonable to find that the defendant has assumed the risk that a co-occupant might permit a search.’ " State v. Thompson, 151 Wash.2d 793, 804, 92 P.3d 228 (2004) (quoting State v. Mathe, 102 Wash.2d 537, 543–44, 688 P.2d 859 (1984) ).

¶16 Our Supreme Court addressed a somewhat similar situation in Cantrell. In that case, Rudell Cantrell and his friend, Ingo Schweitzer, were driving in a car that Mr. Schweitzer's parents owned. Cantrell, 124 Wash.2d at 185, 875 P.2d 1208. A state trooper stopped them for speeding and then asked if they had any contraband in the vehicle. Id. Knowing that Mr. Schweitzer's parents owned the vehicle, the trooper asked Mr. Schweitzer for permission to search his parents' car. Id. Mr. Schweitzer read and signed a consent form allowing the trooper to search the car. Id. at 186, 875 P.2d 1208. The trooper did not ask Mr. Cantrell to sign a similar form. Id. Mr. Cantrell did not object when the trooper searched the car. Id. The trooper found marijuana, paraphernalia, and methamphetamine. Id. Mr. Cantrell was convicted. Id.

¶17 On appeal, the Cantrell court considered whether the police must obtain affirmative consent from all occupants who have approximately equal control over a vehicle before searching it without a warrant. Id. at 187, 875 P.2d 1208. The court had previously held that the police must obtain affirmative consent from all cohabitants in an office building before searching the office without a warrant. Id. at 189, 875 P.2d 1208 (citing State v. Leach, 113 Wash.2d 735, 782 P.2d 1035 (1989) ). The main question in Cantrell was whether that prior holding should be extended to automobile searches. Id.

¶18 The Cantrell court held that the Fourth Amendment does not require all occupants of a vehicle to independently consent to a search and that the consent of one who possesses common authority over a vehicle is sufficient. Id. at 192, 875 P.2d 1208. The court reasoned that third party consent cases turn on the suspect's reasonable expectation of privacy, and if the suspect has willingly allowed another person common authority over the place or thing, then he or she runs the risk that the third party will expose it to another person. Id. at 189, 875 P.2d 1208. The court recognized that a person has a privacy interest in an automobile, but concluded that this expectation of privacy is less than the expectation of privacy in either a home or an office. Id. at 190, 875 P.2d 1208.

¶19 However, the court limited its holding to the situation where one co-occupant consents and the others do not overtly object. The court expressly stated the "issue of whether such consent would continue to be...