State v. Wright

• Decision Date: 07 May 2013
• Docket Number: 41949-1-II
• Court: Court of Appeals of Washington
• Parties: STATE OF WASHINGTON, Respondent, v. DWAYNE WRIGHT, Appellant.

STATE OF WASHINGTON, Respondent, v. DWAYNE WRIGHT, Appellant.

No. 41949-1-II

Court of Appeals of Washington, Division 2

May 7, 2013

UNPUBLISHED OPINION

Quinn-Brintnall, P.J.

A jury found Dwayne Wright guilty of unlawful possession of a controlled substance (methamphetamine) with intent to deliver while armed with a firearm within J, 000 feet of a school bus stop, unlawful possession of a controlled substance (heroin) second degree unlawful possession of a firearm, third degree driving with a suspended license, and unlawful use of drug paraphernalia. RCW 69.50.401(2)(b); RCW 9.94A.530; RCW 69.50.4013(1); RCW 9.41.040(2)(a)(i); RCW 46.20.342; former RCW 69.50.412(1) (2002). Wright appeals, arguing that (1) his counsel was ineffective for failing to challenge the validity of a vehicle search warrant obtained, in part, by establishing probable cause with potentially inadmissible evidence from a drug dog sniff; (2) insufficient evidence supports his unlawful possession convictions and firearm enhancement; and (3) the trial court's sentencing provisions violate his freedom of association.

We hold that because probable cause supported issuing the search warrant even absent the drug dog evidence, counsel was not ineffective for failing, to challenge the warrant on those grounds. In addition, sufficient evidence supports Wright's unlawful possession convictions and a sufficient nexus exists between the firearm Wright constructively possessed and the drugs he intended to sell to support the firearm sentencing enhancement. However, we agree with Wright that the sentencing court's community custody provision prohibiting him from associating with "drug possessors users, [or] sellers, " without requiring that any association be knowing, is impermissibly vague. Clerk's Papers (CP) at 224. Accordingly, we affirm Wright's conviction and sentence but remand to the sentencing court to clarify the community custody provision.

FACTS

Background

On March 5, 2010, at approximately 1:15 AM, Pierce County Deputy Sheriff Robert Shaw detained Wright for driving a vehicle with a burned out license plate light. Shaw approached the driver side of Wright's vehicle while his partner, Pierce County Deputy Sheriff Michael Cooke, approached the vehicle's passenger side. Inside the vehicle, the deputies saw a broken narcotics pipe in plain view along with a "shaved"' key of the type commonly used to steal cars. The deputies had Wright step out of the vehicle and, as he did, Cooke noticed that Wright had been sitting on a pair of black leather gloves and a metal paint scraper. Cooke also saw Wright's smart phone in plain view displaying a text message that read, "If you still want to do the deal wit dem pills, call me." CP at 16. The deputies arrested Wright for possessing drug paraphernalia and automotive theft tools and in a pat-down search of Wright incident to arrest, discovered another glass pipe with residue and $565 in bills grouped together in smaller denominations. Cooke field tested the pipe's residue which was positive for methamphetamine. A records check revealed that Wright's driver's license was suspended.

After placing Wright in their patrol car, the deputies requested that a K-9 officer respond to the scene. The narcotics dog Timber, alerted indicating the presence of narcotics in a metal lockbox on the passenger seat of the vehicle as well as in the area where the deputies first saw the broken narcotics pipe. While Wright was booked at Pierce County Jail, the deputies had the vehicle towed to a nearby precinct to be impounded.

Pierce County Deputy Sheriff Christian Nordstrom obtained a search warrant for the impounded vehicle. In executing the warrant Nordstrom opened the lockbox on Wright's passenger seat and, inside, discovered a digital scale, three small containers containing methamphetamine, money gram receipts with Wright's name on them, a .40 caliber pistol, a piece of black tar heroin, and various paperwork including a letter to Wright from the Washington Department of Licensing. Inside Wright's trunk, Nordstrom found three bags of marijuana and a "window punch, " a tool typically used to break car windows. 2 Report of Proceedings (RP) at 334. As part of the investigation, Nordstrom also performed school zone measurements and determined that Wright had been arrested within 1, 000 feet of a school zone.

The State charged Wright with (1) unlawful possession of a controlled substance (methamphetamine) with intent to deliver while armed with a firearm, (2) unlawful possession of a controlled substance (marijuana) with intent to deliver while armed with a firearm, (3) unlawful possession of a controlled substance (heroin), (4) second degree unlawful possession of a firearm, (5) driving with a third degree suspended license, and (6) unlawful use of drug paraphernalia. RCW 69.50.401(2)(b); RCW 9.94A.530; RCW 69.50.401(2)(c); RCW 69.50.4013(1); RCW 9.41.040(2)(a)(i); RCW 46.20.342; former RCW 69.50.412(1). The State later amended the charges to include school zone enhancements for both unlawful possession with intent to deliver charges. Procedure

Before trial, Wright moved the trial court to suppress all of the evidence against him, arguing that Deputies Shaw and Cooke pulled him over as part of a pretextual stop to "conduct a speculative criminal investigation unrelated to [Wright's] driving, and not for the purpose of enforcing the traffic code." CP at 9. The State responded that the stop was not pretextual as Wright's rear license plate light was nonoperational, a traffic code violation. At the CrR 3.6 hearing, Wright admitted that the broken methamphetamine pipe and shaved key were in plain view when officers approached, but maintained that the officers never told him why they had pulled him over. Wright did not argue that the police lacked probable cause to arrest him after he had been pulled over or that they lacked probable cause to obtain a warrant to search his vehicle. After hearing additional testimony from Shaw, Cooke, and Wright's mechanic, the trial court ruled that the stop was not pretextual.

Wright's jury trial began on February 10, 2011. Deputies Shaw and Cooke testified about the traffic stop and the ensuing arrest. Deputy Nordstrom testified about searching Wright's vehicle. Wright testified in his own defense and admitted that both methamphetamine pipes were his, that the "shaved" key on his key ring was given to him by a friend because Wright had lost his own car key, and that the lockbox was his but that he had left it unlocked in his trunk prior to the incident and that he had loaned his car to an unnamed friend earlier in the evening. In light of this testimony, the defense requested and received a jury instruction for unwitting possession.

On February 16, the jury returned its verdict, finding Wright guilty of all counts except count II, the marijuana charge. The trial court sentenced Wright to 204 months confinement, including a 60-month firearm enhancement and 24-month school zone enhancement. The trial court also ruled that upon his release, Wright would be placed in community custody for 24 months during which time he should have no contact with "drug possessors, users, [or] sellers." CP at 224. Wright timely appeals his judgment and sentence.

DISCUSSION

Ineffective Assistance of Counsel

Wright argues that he received ineffective assistance of counsel because his trial counsel failed to challenge the dog sniff search of his vehicle or the probable cause basis for the search warrant.^[1] Because the record reflects that probable cause supported issuing the search warrant irrespective of information contributed by the canine officer, any challenge to the search warrant below would have been fruitless in excluding the evidence contained in the lockbox. Accordingly Wright fails to establish that his counsel's performance prejudiced him and his ineffective assistance claim fails.

To prevail on his ineffective assistance of counsel claim Wright must show both deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Counsel's performance is deficient if it fell below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705-06, 940 P.2d 1239 (1997), cert, denied, 523 U.S. 1008 (1998). This court's scrutiny of counsel's performance is highly deferential; this court strongly presumes reasonableness. State v. McFarland, 127 Wn.2d 322, 335-36, 899 P.2d 1251 (1995). To rebut this presumption, a defendant bears the burden of establishing the absence of any '"conceivable legitimate tactic explaining counsel's performance.'" State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011) (quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004)). To establish prejudice, a defendant must show a reasonable probability that the outcome of the trial would have differed absent the deficient performance. State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.

Had the canine search been illegal (as Wright contends), any information contributed by the canine search would be impermissible for supporting the affidavit of probable cause for a search warrant. As the Washington Supreme Court explained in State v. Eisfeldt, 163 Wn.2d 628, 640 185 P.3d 580 (2008) (second alteration in original),

Where evidence is obtained as a direct result of an unconstitutional search, that evidence must ... be excluded as '"fruit of the poisonous tree.'" [Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)]. "[I]f information contained in an affidavit of probable cause for a

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