Filed Washington State Court of Appeals Division Two
March 9, 2021 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 53203-4-II
Respondent,
v.
JOHN PHI TRUONG, UNPUBLISHED OPINION
Appellant.
WORSWICK, J. — John Phi Truong appeals his convictions for unlawful possession of a
firearm and unlawful possession of a controlled substance—methamphetamine with intent to
deliver, with a firearm enhancement. For the first time on appeal, Truong argues that his
conviction was based on unlawfully seized evidence. Truong also argues that he received
ineffective assistance of counsel for failing to move to suppress the alleged unlawfully seized
evidence. In his Statement of Additional Grounds (SAG) for Review, Truong asserts that the
evidence was insufficient to support the jury’s verdict and that his sentence violates double
jeopardy.
We do not consider Truong’s unlawfully seized evidence argument raised for the first
time on appeal, and the record on appeal does not support his ineffective assistance of counsel
argument. Moreover, we reject the arguments raised in the SAG. Consequently, we affirm.
FACTS
In August 2018, law enforcement officers had reason to believe that John Phi Truong was
living at his mother’s home. Truong’s mother’s home was a single-family dwelling with a two- No. 53203-4-II
car garage and driveway that faced the street. The garage had been converted into a makeshift
bedroom by adding a bed, heater, and floor coverings. Although the garage was attached to the
house, it was accessible only from the exterior of the garage, either through a standard size door
on the side or through a roll-up style vehicle entry door in the front.
On August 23, Torey Petersen came to Truong’s garage to obtain and use heroin.
Truong’s girlfriend, Lashaia Avila, was in the garage when Petersen arrived.1 Truong, Avila,
and Petersen used drugs together and spent the night in the garage. The next morning, Truong
became irritated when he discovered some of his drugs were missing. According to Petersen,
Truong produced a black revolver and began pacing back and forth, saying, “[W]e’re going to
get to the bottom of [this].” VRP at 93. In fear for his personal safety, Petersen called and sent
text messages to his mother, explaining that he was uncomfortable and that she needed to come
and take him home. Petersen’s mother called law enforcement. Eventually, Petersen was able to
leave the garage despite Truong’s insistence that he stay.
Officers from the Longview Police Department and the Department of Corrections
(DOC) arrived on the scene in response to Petersen’s mother’s call. Once there, they formed “a
team.” Verbatim Report of Proceedings (VRP) at 36. The Longview police officers understood
that the house was the address used by a DOC client, and that the DOC has different roles and
responsibilities than police officers in terms of entering a residence. The DOC officers
determined they would go into the residence and apprehend Truong.
DOC officers obtained permission from Truong’s mother to search the residence. DOC
officers completed a search of the house but did not find Truong inside. Hearing movement
1 At trial, Avila testified that she alone resided in the Truong garage on the day of the search.
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coming from inside of the garage, a group of DOC and Longview police officers assembled on
the driveway in front of the garage’s roll-up door. The garage door began to go up and down,
partially opening, before it finally opened all the way and Truong appeared.2 Truong exited the
garage, sprinted across the driveway and collided with a DOC officer. Truong was apprehended
and arrested in the driveway by DOC officers. DOC officers found a scale with what appeared
to be drug residue on Truong’s person.
The Longview police did not have a warrant to search the garage, however there is
evidence in the record that Truong’s mother gave officers permission to search the residence.
DOC officers began to search the garage under authority of RCW 9.94A.631(1).3 When DOC
officers entered the garage to begin their search, Longview Police Department Corporal Danielle
Jenkins positioned herself on the corner of the garage directly near the garage entryway.
Corporal Jenkins, acting on information that there was a bag inside of the garage that contained
evidence, peered into the garage without actually entering. Jenkins observed a bag hanging from
the rafters and she notified DOC of the bag’s presence. DOC officers retrieved the bag from the
rafters. Jenkins saw “some contents” of the bag and told DOC officers to “hold onto” the bag,
and that she would obtain a search warrant for it. VRP at 38.
2 The record is inconclusive as to who opened the garage. 3 DOC can conduct a warrantless search of a probationer’s “person, residence, automobile, or other personal property” based on mere “reasonable cause to believe that [the] offender has violated a condition or requirement of [his/her] sentence.” RCW 9.94A.631(1). In this case, DOC believed that Truong violated a condition of his community custody by failing to notify a change of address. Here, DOC had an outstanding warrant for Truong based on an alleged failure to update his address.
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The bag located in the rafters was a lunch box style, dark colored container with a
zippered lid. Jenkins and other officers of the Longview Police Department obtained a warrant,
opened the bag, and discovered a safe inside. Officers forcibly opened the safe. Inside the safe,
officers discovered a black revolver, ammunition, methamphetamine, heroin, drug paraphernalia,
and cash, along with documents with Avila’s name on them.
Truong was charged by information with one count each of unlawful possession of a
controlled substance with intent to deliver—methamphetamine,4 unlawful possession of a
controlled substance with intent to deliver—heroin5 (each with school zone and firearm
enhancements)6, first degree unlawful possession of a firearm,7 and harassment.8
The case proceeded to a jury trial. At trial, Truong’s attorney neither challenged the
search warrant, nor moved to suppress the evidence located in the bag. A jury found Truong
committed the crimes of possession with intent to deliver methamphetamine, with school zone
and firearm enhancements, and first degree unlawful possession of a firearm.9 Truong was
sentenced to 180 months of total confinement. Truong appeals his conviction, judgment and
sentence.
4 RCW 69.50.401(1), 401(2)(b). 5 RCW 69.50.401(1). 6 RCW 69.50.435(1); RCW 9.94A.533, .825. 7 RCW 9.41.040(1)(a). 8 The jury found Truong not guilty of harassment. 9 The record reflects, without explanation, that the charge of unlawful possession of a controlled substance with intent to deliver—heroin, was not submitted to the jury.
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ANALYSIS
I. SEARCH AND SEIZURE
For the first time on appeal, Truong argues that the State seized evidence from the garage
in violation of his constitutional rights. Specifically, Truong argues that Corporal Jenkins
conducted an unlawful, warrantless search of his home, and that the fruit of that warrantless
search was used to convict him.
The State argues that Truong waived his right to appeal because he did not move to
suppress this evidence at trial and the record is not sufficiently developed for our review. The
State argues that the record is not sufficient for us to determine whether the error is manifest
because we cannot determine whether the warrantless search was allegedly unreasonable.
Alternatively, the State argues that if it was a warrantless search, one of a number of exceptions
apply.
We agree with State that this record is insufficient for us to decide the merits of Truong’s
argument, thus we do not consider it.
A. Unpreserved Challenge
This court will generally not consider errors raised for the first time on appeal unless a
defendant shows a “manifest error affecting a constitutional right.” RAP 2.5(a)(3). We review
constitutional issues de novo. State v. Fenwick, 164 Wn. App. 392, 398, 264 P.3d 284 (2011).
An error is manifest when a defendant makes a plausible showing that the error had
practical and identifiable consequences in the trial. State v. O'Hara, 167 Wn.2d 91, 99, 217 P.3d
756 (2009). An error cannot be manifest where the record is not sufficient for a reviewing court
to decide the merits of the alleged error. O'Hara, 167 Wn.2d at 99. In other words, a defendant
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cannot show prejudice and the error is not manifest where the record does not contain all the
facts necessary to adjudicate the alleged error. Fenwick, 164 Wn. App. at 405.
1. Warrantless Search
Both the United States and Washington constitutions provide a right to be free from
unlawful searches. WASH CONST. art. I, § 7; U.S. CONST. amends. IV; XIV. When the
government “‘physically occupie[s] private property for the purpose of obtaining information,’”
that is a “‘‘search’ within the meaning of the Fourth Amendment.’” U.S. v. Perea-Rey, 680 F.3d
1179, 1184 (9th Cir. 2012) (alteration in original) (quoting U.S. v. Jones, 565 U.S. 400, 404, 132
S. Ct. 945, 181 L. Ed. 2d 911 (2012)). Searches and seizures made without a warrant are per se
unreasonable, unless an exception applies. State v. Simpson, 95 Wn.2d 170, 188, 622 P.2d 1199
(1980) (plurality opinion).10
There is no dispute that Corporal Jenkins did not have a warrant to search the garage.
The question is whether the record is sufficient for us to determine whether her conduct
constituted a search, and if so, whether an exception to the warrant requirement applies. We
hold that the record is insufficiently developed to allow us to decide the merits of Truong’s
argument, thus, Truong cannot show manifest constitutional error and his claim fails.
10 Truong argues that the burden is on the State to demonstrate that an exception to the warrant requirement applies, but because this is a review of an unpreserved error and not a motion to suppress, Truong bears the burden to show manifest constitutional error, including whether this record is sufficient for this court to decide the merits of his alleged issue. See O’Hara, 167 Wn.2d at 98; RAP 2.5.
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a. Consent
The State argues that the record is insufficient to determine the scope of any limitations
of the consent Truong’s mother gave to law enforcement to search the residence. Truong argues
that his mother did not have legal authority to give third party consent to search his garage
because he was present, and he did not give his consent, and so the scope of whatever consent
was obtained from Truong’s mother necessarily could not include his garage. We agree with the
State.
Consent to a search is an exception to the warrant requirement. State v. Walker, 136
Wn.2d 678, 682, 965 P.2d 1079 (1998). A host or third party who has dominion and control
over the premises may consent to a search. State v. Thang, 145 Wn.2d 630, 638, 41 P.3d 1159
(2002). Persons who possess common authority can give consent over a premises in the absence
of a nonconsenting individual. State v Thompson, 151 Wn.2d 793, 803-04, 92 P.2d 228 (2004).
If the cohabitant is present and able to object, the police must also obtain the cohabitant’s
consent. State v. Leach, 113 Wn.2d 735, 744, 782 P.2d 1035 (1989). Landlords and tenants do
not have common authority if only the tenant is in possession of the property. State v. Mathe,
102 Wn.2d 537, 544, 688 P.2d 859 (1984). A temporary or overnight guest does not have
standing to challenge a search. State v. Boot, 81 Wn. App. 546, 551, 915 P.2d 592 (1996).
Here, the facts are too inconclusive for us to decide whether police officers had valid
consent to search the garage. Although the officers obtained Truong’s mother’s consent to
search the residence—and the facts do not suggest they obtained Truong’s consent—the facts are
inconclusive as to what authority over the garage Truong actually possessed. For example,
Avila, who was also present, testified that she alone lived in the garage. Officers testified that
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they believed that Truong lived at the address, but the record is unclear what authority, apparent
or actual, Truong’s mother had to give consent to search the garage. As a result, Truong fails to
show prejudice on the grounds that the State did not obtain valid consent to search the garage.
b. Curtilage
The State argues that Corporal Jenkins was “lawfully on the curtilage of the Truong
residence because she was investigating allegations of felony harassment involving a firearm.”
Br. of Resp’t at 10. Truong argues that Corporal Jenkins was standing in an area of curtilage that
was not impliedly open to the public. We hold that the record is insufficiently developed to
determine whether Corporal Jenkins was standing in an area not open to the public.
The home is generally viewed as “the area most strongly protected by the constitution.”
State v. Ross, 141 Wn.2d 304, 312, 4 P.3d 130 (2000) (plurality opinion). Curtilage “is so
intimately tied to the home itself that it should be placed under the home's ‘umbrella’ of Fourth
Amendment protection.” U.S. v. Johnson, 256 F.3d 895, 912 (9th Cir. 2001). “The presence of
an officer within the curtilage of a residence does not automatically amount to an
unconstitutional invasion of privacy. Rather, it must be determined under the facts of each case
just how private the particular observation point actually was.” State v. Seagull, 95 Wn.2d 898,
902, 632 P.2d 44 (1981). An officer’s entry onto curtilage impliedly open to the public “such as
a driveway, walkway, or access route leading to the residence” is not a search. State v. Hoke, 72
Wn. App. 869, 874, 866 P.2d 670 (1994). When an officer makes a “substantial and
unreasonable departure” from curtilage impliedly open to the public, that departure is deemed to
be a violation of a constitutionally protected expectation of privacy. Hoke, 72 Wn. App. at 874.
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Here, the facts are too inconclusive for us to determine whether Corporal Jenkins was on
curtilage impliedly open to the public or whether she exceeded the scope of what was impliedly
open to the public. The record on appeal shows only that Corporal Jenkins was part of the
“team” that formed at the beginning of the encounter, and stood close to the open garage roll-up
door when she observed the bag. Without more, we cannot resolve whether that vantage point
was impliedly open to the public or not, and “just how private the particular observation point
actually was.” Seagull, 95 Wn.2d at 902.
c. Independent Source
“Under the independent source exception, evidence tainted by unlawful governmental
action is not subject to suppression under the exclusionary rule, provided that it ultimately is
obtained pursuant to a valid warrant or other lawful means independent of the unlawful action.”
State v. Gaines, 154 Wn.2d 711, 718, 116 P.3d 993 (2005).
Jenkins told DOC officers that there was a bag containing suspected evidence in the
rafters of the garage. But there is no evidence as to whether King, the officer who ultimately
seized the bag, heard Jenkins’s statement about the bag or whether he had spotted the bag on his
own accord independent of Jenkins’s conduct. Without evidence to conclude one way or
another, we cannot hold that the bag would be subject to the independent source exception to the
exclusionary rule.
d. DOC’s Authority To Make a Warrantless Search
The State argues that it had the authority to search Truong’s garage by assisting DOC
under their lawful authority to perform a warrantless search. Truong argues that DOC did not
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enlist her aid and that Jenkins conducted a search on her own accord. The record is insufficiently
developed to determine this issue.
Probationers and parolees have a diminished right to privacy under the Fourth
Amendment and article 1, section 7 of the Washington Constitution. State v. Lucas, 56 Wn.App.
236, 239-40, 783 P.2d 121 (1989), review denied, 114 Wn.2d 1009, 790 P.2d 167 (1990). The
government can search a probationer or parolee or his residence without a warrant when the
probationer or parolee is subject to a provision authorizing such a search, and when the
government has probable cause to believe that the probationer or parolee is the resident of the
house to be searched. United States v. Grandberry, 730 F.3d 968, 973 (9th Cir. 2013).
RCW 9.94A.631 allows DOC to perform a warrantless search of a probationer’s person,
property, and residence upon “reasonable cause” that probation conditions have been violated.
The Ninth Circuit has upheld RCW 9.94A.631 as consistent with the Fourth Amendment.
United States v. Conway, 122 F.3d 841, 842-43 (9th Cir.1997), cert. denied, 522 U.S. 1065, 118
S. Ct. 730, 139 L. Ed. 2d 668 (1998). When a DOC officer is justified to make a warrantless
search, they may enlist the aid of police officers in performing that duty. State v. Simms, 10 Wn.
App. 75, 86, 516 P.2d 1088 (1973).
Here, the facts are unclear as to whether DOC did in fact “enlist the aid of the police
officers,” and if so, the extent of the aid requested. Corporal Jenkins testified that officers from
Longview Police Department and DOC formed a “team.” The State did not elicit any evidence
clarifying what assistance DOC officers may have enlisted. Notably absent is any testimony
from DOC officer King, who actually seized the bag. This record is simply too lacking in detail
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to conclude whether Corporal Jenkins was acting in concert with DOC when she looked into the
garage.
In conclusion, because Truong failed to request a CrR 3.6 suppression hearing, the State
was unable to fully develop a record regarding the propriety of the search. The record before us
does not show that the trial court would have granted Truong’s motion to suppress, and so
Truong cannot show prejudice. See Fenwick, 164 Wn. App. at 405. Because Truong fails to
show a manifest error affecting a constitutional right, he cannot raise the admissibility of the
fruits of the warrantless search for the first time on appeal. RAP 2.5(a).11
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Truong argues that his attorney’s failure to move to suppress the evidence obtained by
Jenkins’s alleged search constitutes ineffective assistance of counsel. Truong’s argument fails
because the record does not clearly show that the evidence was erroneously admitted and the
record is also devoid of counsel’s reasons for failing to object.
To establish a claim of ineffective assistance of counsel, a defendant is required to show
both deficient performance and that the deficient performance prejudiced him. Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Thomas, 109
Wn.2d 222, 225-26, 743 P.2d 816 (1987). There is a strong presumption that counsel’s
representation was competent. State v. Hassan, 151 Wn. App. 209, 211, 211 P.3d 441, 442
11 The State also argues that “nowhere in the record does it say that Truong was on active DOC supervision at the time of the search.” Br. of Resp’t at 5. Truong concedes that the evidence regarding whether Truong was on DOC supervision is “ambiguous.” Reply Br. of Appellant at 5. This ambiguity contributes to this court’s inability to adjudicate the legality of the warrantless search.
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(2009). This presumption is rebuttable when there is “no conceivable legitimate tactic
explaining counsel’s performance.” State v. Reichenbach, 153 Wn.2d 126, 128, 130, 101 P.3d
80 (2004).12 On direct appeal, we will not consider matters outside the record, and where the
record on appeal does not contain evidence as to counsel’s strategic or tactical decisions for
failing to object, the appropriate method of review is a personal restraint petition. State v.
Linville, 191 Wn.2d 513, 524-25, 423 P.3d 842, 847 (2018).
Here, the record is insufficient to determine whether counsel performed deficiently. The
record is not sufficient for us to determine that the evidence should have been excluded, and
there is no evidence in the record as to counsel’s strategic or tactical decisions regarding this
issue. We also cannot conclude that there was “no conceivable legitimate tactic explaining
counsel’s performance,” because the record is not conclusive as to whether the evidence was
erroneously admitted. Reichenbach, 153 Wn. 2d at 130. Consequently, Truong’s ineffective
assistance of counsel claim fails.
III. STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW
In his SAG, Truong argues that his conviction is not supported by sufficient evidence.
Specifically, Truong argues that the evidence does not support that he was in possession of the
firearm for either the unlawful possession of a firearm conviction or the firearm sentencing
enhancement on his possession conviction. Separately, Truong argues that a firearm special
verdict finding amounts to double jeopardy for double counting. We disagree.
12 In Reichenbach, the record showed that a search warrant was invalid at the time of its execution, and that this argument was available to trial counsel. 153 Wn.2d at 131.
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A. Sufficiency of the Evidence
Truong disputes that sufficient evidence exists to support his firearm conviction or the
firearm sentencing enhancement. We disagree.
Sufficient evidence supports a jury verdict if a rational trier of fact viewing the evidence
in the light most favorable to the State could find each element proved beyond a reasonable
doubt. State v. Raleigh, 157 Wn. App. 728, 736, 238 P.3d 1211 (2010). An appellant’s
challenge to the sufficiency of the evidence admits the truth of the State’s evidence and all
reasonable inferences drawn therefrom. Raleigh, 157 Wn. App. at 736. “Circumstantial
evidence and direct evidence are equally reliable” and “[c]redibility determinations are for the
trier of fact and are not subject to review.” State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d
970 (2004). We defer to the trier of fact on conflicting testimony, credibility, and the
persuasiveness of the evidence. Raleigh, 157 Wn.App. at 736-37.
Constructive possession is established where the defendant exercised dominion and
control over the item in question. State v. Jones, 146 Wn.2d 328, 333, 45 P.3d 1062 (2002). The
ability to immediately take actual possession of an item can establish dominion and control.
State v. Listoe, 15 Wn. App.2d 308, 326-27, 475 P.3d 534 (2020). For purposes of weapons
enhancements, a person is “armed” if the weapon is “‘easily accessible and readily available for
use’ and there was a nexus or connection between the defendant, the crime, and the weapon.”
State v. Eckenrode, 159 Wn.2d 488, 493, 150 P.3d 1116 (2007) (plurality opinion) (quoting State
v. Valdobinos, 122 Wn.2d 270, 282, 858 P.2d 199 (1993)).
Here, Petersen testified at trial that Truong did actually possess the firearm in question
when he was pacing around the garage in a menacing manner the morning of his arrest. Even
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disregarding any testimony about the safe, Petersen’s testimony about Truong’s possession of the
gun alone is sufficient evidence of both the unlawful possession of a firearm charge and the
firearm sentencing enhancement.
B. Double Jeopardy
Truong’s contention that the trial court erred when it calculated his base offense level
under RCW 9.94A.517 for being armed with a deadly weapon while also adding a firearm
enhancement under RCW 9.94A.533(3)(b) is without merit.13
The law of double jeopardy with respect to the federal sentencing scheme is instructive.
“[I]mpermissible double counting . . . occurs where one part of the Guidelines is applied to
increase a defendant’s punishment on account of a kind of harm that has already been fully
accounted for by the application of another part of the Guidelines.” United States v. Reese, 2
F.3d 870, 895 (9th Cir. 1993). “If, on the other hand, it is possible to be sentenced under a
particular offense guideline without having engaged in a certain sort of behavior, such behavior
may be used to enhance the offense level.” Reese, 2 F.3d at 895.
Here, it was possible for Truong to be assigned the base offense level he received by
being armed with a deadly weapon other than a firearm. Therefore, the fact that the deadly
weapon he possessed happened to be a firearm would be grounds for a proper sentence
13 Truong cites RCW 9.94A.517, but it appears he meant to cite RCW 9.94A.518, which includes Table 4, and provides for an increase in the seriousness level of drug offenses when a jury returns a deadly weapon special verdict in connection with the drug offense conviction. By definition, all firearms are deadly weapons. State v. McGrew, 156 Wn. App. 546, 560, 234 P.3d 268 (2010).
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enhancement and would not constitute a form of double jeopardy for double counting. Truong’s
claim of double jeopardy fails.
CONCLUSION
In conclusion, Truong’s unpreserved challenge cannot be raised because he fails to show
the alleged error is manifest. We hold that Truong has failed to show on this record that he
received ineffective assistance of counsel. Regarding Truong’s SAG, we hold that sufficient
evidence supports the jury’s verdict, and that Truong’s judgment and sentence does not violate
the prohibition against double jeopardy. Accordingly, we affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
___________________________ Worswick, J.
We concur:
________________________________ Lee, C.J.
________________________________ Glasgow, J.