FILED
MARCH 17, 2015
I n the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) ) No. 31794-3-111 Respondent, ) ) v. ) ) LARRY GENE MARQUETTE, ) UNPUBLISHED OPINION ) Appellant. )
FEARING, 1. - After a traffic stop, law enforcement officers seized
methamphetamine and drug paraphernalia from Larry Marquette's car. The trial court
convicted Marquette of one count of possession of a controlled substance with intent to
deliver. On appeal, Marquette argues that evidence seized inside the car and an
inculpatory statement made at the time of the seizure should be suppressed. He also
challenges the chain of custody ofthe methamphetamine. We affirm the trial court's
denial of the motions to suppress and affirm the conviction. No. 31794-3-111 State v. Marquette
FACTS
On the afternoon of April 4, 2012, Spokane County Deputy Sheriff leffThurman
observed Larry Marquette drive eastbound on 1-90. Marquette exited the freeway at the
Argonne Street exit from the fourth lane, without signaling. The fourth lane gives the
option to continue on 1-90 or exit, and the fifth lane is an exit only lane. Thurman
followed Marquette off the freeway and northbound onto Argonne before turning on his
emergency lights at the intersection of Argonne and Knox.
When Deputy leffThurman activated his patrol car's emergency lights, he
observed Marquette immediately reaching toward his seat, which Thurman characterized
as a furtive movement. Thurman took this furtive movement seriously and requested
assistance.
Larry Marquette drove in the far left lane of Argonne. He later testified that he did
not immediately pull his car to the side because of considerable traffic and the absence of
a safe place to stop. When Marquette failed to stop at the intersection with Knox, Deputy
Thurman activated his siren and followed Marquette's car to the Montgomery
intersection, where Marquette turned left and stopped in a dirt lot. Marquette testified
that he saw the dirt lot and signaled to the officer by pointing toward the lot out his car
window while waiting to tum left on Montgomery. Washington State Patrol Trooper
Kristopher Stone coincidentally saw Deputy Thurman's car's emergency lights and
pulled into the lot as Thurman physically restrained Marquette.
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I No. 31794-3-111 State v. Marquette J j I1 Larry Marquette and Deputy Jeff Thunnan disagree about the events that occurred Ij I after the stop in the dirt lot. At the suppression hearing, Thunnan testified:
[Tbunnan]: 1 quickly exit my vehicle to try to get control of the I
! driver to have him show me his hands, because 1 don't know ifhe's trying to retrieve or conceal a weapon. 1 noticed, in my peripheral vision, a II trooper car pulling up. 1 approached the driver's door of the vehicle, 1 tell Mr. Marquette to show me his hands, he showed me his hands. 1 open the ,I door of his car. 1 tell him-have him exit the car. When he exits the car, 1 ! immediately take control of his hands because 1 don't know ifhe has weapons on his person. [By Prosecutor]: Could 1 stop you there? When you say take
control of his hands, how are you doing that?
A. Basically took his ann, placed it behind his back into a handhold, and walked him back to my patrol scar [sic].
As 1 was walking-as 1 had him exit the car, Trooper Stone ... came over to the side with me, the driver's side. As 1 was walking Marquette back, Mr. Marquette back to my patrol car, 1 told Trooper Stone to conduct a frisk of the-underneath the driver's seat for any weapons. Q. Okay. What did you do with Mr. Marquette then? A. 1 walked him to the front of my patrol car, asked him what he was trying to hide. He said he was trying to get his cell phone. 1 told him that 1 was gonna frisk him down for weapons. 1 asked him ifhe had any weapon on his person, he said no. And then 1 asked him if 1 could search his person, he said yes. And about that same time, Trooper Stone walked up to me and said that he didn't enter the vehicle. He said he observed what appeared to be a baggy of methamphetamine on the floorboard of the car on the driver's side. Q. What do you do when Trooper Stone gives you that infonnation? A. 1 advised Mr. Marquette he was under arrest. 1 placed him into custody and detained him in handcuffs. Q. What do you did at that point? A. At that point 1 placed him into the back seat of my patrol car. 1 had Trooper Stone stand with him. 1 walked up to the vehicle, 1 looked in from the outside, confinned what Trooper Stone saw, 1 walked back to Mr. Marquette. Q. And when you get back there, what do you do?
3 No. 31794-3-111 State v. Marquette
A. Had him-I took him back out of the patrol car and 1 continued to read him his Miranda rights, which he said-at first he said he did not understand them. And 1 told him that 1 didn't want to play any games, he looked like he was an educated man. And he said, "All right, 1 don't want to play games either." And he continued to tell me he did understand his rights. Q. Okay. And then you obtained consent to search? A. Then 1 obtained consent to search the vehicle. Also gave him a consent to search card, which advised him he has the right to refuse, restrict or revoke the search. He understood and he also gave consent to search the vehicle. Q. Okay. A. 1 unhandcuffed his hand at that time and allowed him to sign both cards. Q. Who did the search of the vehicle? A. 1 did.
Report of Proceedings (RP) (Oct. 18,2012) at 62-65.
Larry Marquette testified at the suppression hearing:
[Marquette]: ... The deputy came up and opened my car door and told me to get the F out of the car, right. [Counsel]: Let me stop you there and go back a minute. While you were driving in the distance between 1-90 and where you stopped, okay.
Were you making any movements with your hands? A. Yeah; 1 was looking for my cell phone.
And it's a stick shift so, 1 mean, it's a five speed. Q. Where were you looking for-what point in the car or on you were you looking for your cell phone? A. Well my car's-it's probably in my seat and coat pockets 'cause 1 was wearing two coats. Q. All right. Okay. So let's jump forward again to where wejust left off prior to that question. The deputy approaches your car. And what's said? A. He opened the car door and told me to get the F out of the car. Q. Okay. What did you do or say, if anything?
iI i j :1 I l ) ~ No. 31794~3~III j State v. Marquette
I I A. I held up my hand and said, "Easy, tough guy, it ain't that serious."
J At which point he grabbed my arm and pulled me out of the car and
I took me and put me down on his car. And I told him, "Man, there's no
I need to get violent." He says, "If I was getting violent, you'd be on the
ground." I'm like, "Okay."
!I , Q. How did he-in what manner did he put you on the car?
A. Arm behind the back and like-yeah, like I was resisting him,
i l which, you know.
!, Q. Were you standing? Were you bent over? A. I was bent over, face down on his car, yes. Q. Was it one hand behind your back? Or both? A. Well, he first had the one, then he took the other, yeah. Q. Okay. What happened next? A. He says what was I looking for, I said my cell phone.
And then he told the other officer to look under the seat.
I told him, "Under Arizona v. Gantz (Phonetic), you can't search my car, I've been removed." Q. Now what happened after the-I'm not asking you what was said, necessarily, but what happened after the officer looked into your car? A. The other officer came up and said there was some meth in there. Q. All right. Were you then arrested? A. Yeah. He had put the cuffs on me when he put me on the car.
Q. Before the other officer went and looked at the car? A. Yeah.
Q. All right. Okay. Were the doors of the police car opened or closed? A. Closed. Q. All right. Were you able to get out of that car? A. Absolutely not, no. Q. Why not? A. Cause I was in handcuffs and, I mean, the door's closed to the car.
No. 31794-3-111 State v. Marquette
RP (Oct. 18,2012) at 24-27.
Deputy Thurman found one cell phone in the passenger seat and another in
Marquette's pocket. The cell phone removed from Marquette's person rang in excess of
ten times while Deputy Thurman spoke to Marquette.
Jeff Thurman testified he obtained consent to search the vehicle and released the
handcuffs long enough for Larry Marquette to sign a consent to search card and a
Miranda waiver card. Thurman testified that Marquette was evasive at first, stating he
did not understand the rights being read to him, but that he ultimately cooperated.
According to Thurman, Marquette stated he used methamphetamine that morning and
officers would find a baggie of methamphetamine on the driver's floorboard. Thurman
searched Marquette's car and found
the same bag that Trooper Stone advised me of on the floorboard, driver side floorboard front. There was a knife next to it. It appeared that the front edge of it had been cut off. The same white crystal substance that 1 recognized from my training and experience as methamphetamine was, also, on the seat, itself, the driver seat. On the passenger seat, there was a black bag that contained several small bindle baggies that are commonly used to package drugs from my training and experience, a cell phone and then the stereo system in the vehicle appeared it had been removed multiple times. 1 was able to just barely pull on it, and it came all the way out. There was another bag stuffed behind that that contained the same type of packaging materials and baggies that was in the bag on the passenger seat were, also, inside the bag that was behind the stereo. There was, also, a white crystal substance that 1 recognized as methamphetamine in there and a scale inside there that had a white crystal residue on it.
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I J No. 31794-3-111 State v. Marquette
II RP (Apr. 15,2013) at 25-26.
Deputy Sheriff Jeff Thurman testified that after he completed the search, he I I returned to his patrol car to question Marquette, who told him he was on probation and i I sold methamphetamine "here and there" to make ends meet. RP (Apr. 15,2013) at 27. I! According to Thurman, Marquette said he did not want to speak with drug detectives, but
told Thurman the bag of methamphetamine found behind the stereo would contain about
an eighth of an ounce. Thurman summoned a tow company to impound Marquette's car,
but he later cancelled the impound after Marquette asked if a friend with a tow truck
could retrieve the car. Thurman testified that he allowed the friend to tow the car because
Marquette was cooperative. Thurman also testified that, based on his training and
experience, Marquette appeared to be high on methamphetamine because of rapid speech.
In contrast, Larry Marquette testified he told Deputy Thurman three or four times
that he did not want him to search the car and, under Arizona v. Gant, the deputy could
not search it. Marquette averred that Thurman remarked that suspects did not usually
"thro:w case law" at him and that he would impound the vehicle and procure a search
warrant anyway. RP (Apr. 15,2013) at 45-46. Marquette told Deputy Thurman that he
could not afford to pay to retrieve the car from impound and needed the car to visit his ill
mother. Marquette testified Thurman said, "you let me search it. I will see what I can do
for you." RP (Apr. 15,2013) at 47. Marquette declared that Thurman told him that, ifhe
No. 31794-3-III State v. Marquette
would talk about the drugs found behind the stereo, Thurman would try to limit the
charges to being in possession rather than possession with intent to deliver.
PROCEDURE
The State of Washington charged Larry Marquette with one count of possession of
a controlled substance with intent to deliver. Marquette filed a CrR 3.6 motion to
suppress the methamphetamine and other evidence obtained via the warrantless search of
his vehicle, arguing (1) no exceptions to the warrant requirement applied, (2) the traffic
stop was pretext for an unrelated criminal investigation, and (3) Marquette's consent to
search the vehicle was not validly obtained.
The trial court heard testimony and argument on the CrR 3.6 motion and denied it.
The trial court entered, in part, the following findings of fact:
6. Deputy Thurman approached the driver, later identified as Larry Gene Marquette, and ordered him to show his hands. The defendant complied. The deputy ordered the defendant to get out of the car. The defendant complied. The driver's door remained open. Deputy Thurman placed the defendant in handcuffs and escorted him next to his patrol car. Deputy Thurman asked the defendant what he had been doing reaching under the driver's seat. The defendant replied that he was reaching for his cell phone. Deputy Thurman asked the defendant if he had any weapons on his person and the defendant replied no. 7. Trooper Christopher Stone of the Washington State Patrol arrived to assist the deputy. The deputy asked the trooper to look under the seat; however the trooper did not look under the seat. 8. Trooper Stone went to the open door. He saw what he believed to be a baggie of methamphetamine on the front driver's side floorboard. The trooper did not enter the car. He returned to Deputy Thurman and told him what he had observed. Deputy Thurman arrested the defendant.
9. Deputy Thurman advised Mr. Marquette of his Miranda warnings. The defendant indicated that he understood his rights. The deputy read a search consent card to the defendant. The defendant signed the card. The deputy searched the car and seized items of evidence.
Clerk's Papers (CP) at 130-31.
Based on its findings, the trial court entered, in part, the following conclusions of
law after the CrR 3.6 hearing:
3. There was no search of the vehicle, as defined by the Washington State or United States Constitution, by Trooper Stone. The car door was open. The car was in a public area. The trooper was in a public area. The trooper saw the baggie in open view when he was in a place where he was authorized to be. 4. Deputy Thurman advised the defendant of his Miranda and Ferrier warnings. The defendant consented to the search ofthe car. The evidence was seized after the defendant gave consent to search. There was no violation of Arizona v. Gant.
CP at 131.
Larry Marquette filed a CrR 3.5 motion to suppress the statements that Deputy Jeff
Thurman alleged he uttered after his arrest. Marquette argued: (1) a CrR 3.5 hearing was
needed to determine whether a proper .Miranda warning preceded his statements, and (2)
his statements were involuntary under the Fourteenth Amendment and inadmissible for
any purpose. After hearing testimony and argument, the trial court orally ruled
the statements Mr. Marquette made were valid statements. They were even though custodial, he was advised of his rights. As far as the statements was he offered something in exchange for waiving his rights, even though they're Mr. Marquette's own testimony that when he told the deputy he couldn't search, the deputy said he was going to tow it and get a search warrant, which is his right to tow the car and get a
No. 31794-3-II1 State v. Marquette
search warrant. Mr. Marquette had said he couldn't afford it. He didn't want to get it out. So whether Mr. Marquette made that offer, I did not find that the' deputy offered that in lieu of him waiving his rights based on Mr. Marquette's own testimony. The Court is still going to find that they were knowingly, voluntarily and they were consensual at the time for waiving his rights.
RP (Apr. 15,2013) at 70-71.
The trial court did not enter written findings of fact or conclusions of law in
support of the denial ofthe erR 3.5 motion until one year after the hearing and after
Marquette filed his opening briefin the present appeal.
The criminal charge proceeded to a bench trial. Spokane County Sheriff Deputy
leffThurman again testified that, during his search of Larry Marquette's car, he found
two small baggies of methamphetamine on the floorboard, two small baggies of
methamphetamine behind the car stereo, and a small scale with white residue in a nylon
bag behind the car stereo. Thurman also found a black nylon bag on the passenger seat
that contained a cell phone, address book, and empty small bindle baggies with little
green alien skulls printed thereon. Thurman testified that the bags found on the
floorboard and the bindle baggies were 1" x 3/4" in size.
At trial, Deputy Thurman testified that, after he finished his search of the car, he
spoke with Larry Marquette, who told him of 1/8 of an ounce of methamphetamine
behind the car stereo. Thurman declared that the cell phone found on Marquette's person
rang multiple times while they were waiting for Marquette's friend to come and tow his
No. 3 1794-3-II1 State v. Marquette
car.
At trial, Deputy Jeff Thunnan testified he labeled and placed in separate evidence
bags: exhibit (1) the crystalline substance found in the baggies on the floorboard and
behind the car stereo, exhibit (2) the digital scale, exhibit (3) empty baggies and
cellophane found behind the car stereo, exhibit (4) the black nylon bag found behind the
car stereo, exhibit (5) a small red address book and the cell phones found on Larry , Marquette's person and on the passenger seat, and exhibit (6) the black nylon case found
on the passenger seat, still holding the bindle baggies with green alien skulls printed on
them. Thunnan placed all the items into a secure storage bin in the county sheriffs
property room.
JeffThunnan testified at trial that, before booking the evidence, he weighed at 0.2
grams the methamphetamine found on the floorboard and at 1.6 grams the
methamphetamine found behind the stereo. Thunnan used a scale from the sheriff
department's property room to weigh the methamphetamine. He cleaned the scale before
use. Thurman testified that the 1.6 grams found behind the stereo of the car was close to
an eighth of an ounce, or about 2.29 grams.
Detective Lloyd Hixson of the Spokane County Sheriffs Drug Unit testified that
he transported exhibits 1 through 6 to the Washington State Patrol Crime Laboratory on
June 15,2012, two and one-half months after the seizure of the evidence. Trevor Allen, a
forensic scientist at the Washington State Patrol Crime Laboratory, testified that Alex
Seaboalt received exhibit 1 containing the methamphetamine on that same day. Alex
Seaboalt did not testify at trial. Allen testified that, although he could not remember the
time of day he first handled the methamphetamine, he received exhibit 1 with its original
seal from the sheriff's office intact, and that he did not see any other openings in its bag.
Trevor Allen testified at trial that he found two sealed zip lock bags in the exhibit
1 folder. He also testified that he took the crystalline substance out of one bag numbered
002 and weighed it at 5.81 grams. In addition, Allen testified that, on June 27, 2012, he
conducted gas chromatography and microcrystalline tests to confirm the crystalline
substance was a combination of methamphetamine and dimethyl sulfone, a lawful dietary
supplement. Allen followed the same process for the second bag, numbered 003, and
determined that it also held methamphetamine cut with dimethyl sulfone weighing 0.21
grams. Allen then repackaged exhibit 1, sealed the evidence bag, and dated it. Allen
testified he conducted the same process on the plastic bags found in exhibit 3, and
discovered trace amounts of methamphetamine. On July 11,2012, Allen prepared a draft
report of his test results, which he sent for peer review. The review occurred on July 16,
2012.
At trial,·Larry Marquette questioned Deputy Jeff Thurman about the discrepancy
between the weights he recorded for the methamphetamine he recovered from
Marquette's car and the weights recorded by Trevor Allen at the Washington State Patrol
Crime Laboratory Thurman testified "Apparently, 1 wrote down the wrong number or
read the scale wrong." RP (Apr. 16,2013) at 181.
When the State of Washington moved to admit exhibits 1 and 3 into evidence,
Larry Marquette objected. He argued that the State could not lay a proper foundation for
admission or comply with the confrontation 'clause absent testimony from Alex Seaboalt,
the evidence custodian who received the exhibits from Detective Lloyd Hixon.
Marquette also argued that the State had not properly accounted for the discrepancy in
weights respectively taken by the Spokane County Sheriffs Office and the Washington
State Patrol's Crime Laboratory. The State countered that issues of contamination or
disparity in evidence go to weight and not admissibility, and that Alex Seaboalt's absence
did not violate the confrontation clause. The trial court ruled in favor ofthe State and
admitted exhibits 1 and 3. The court reasoned that Washington v. Campbell, 103 Wn.2d
1,691 P.2d 929 (1984) holds that minor gaps in the chain of custody go to weight and not
admissibility.
Larry Marquette brought a halftime motion to dismiss and a motion to dismiss at
the close of the State's case in chief. Marquette argued that the State lacked sufficient
evidence to prove intent to deliver, based on corpus delicti, lack of corroboration, and
unreliability of the weight of the methamphetamine found in Marquette's car. The trial
court denied both of Marquette's motions.
l3 No. 3 1794-3-II1 State v. Marquette
The trial court found Larry Marquette guilty of possession of a controlled
substance with intent to deliver. The court made an oral ruling with several findings of
fact and concluded that the State proved all the elements of the charge:
The issue then comes down to did he possess it with an intent to deliver. The Court looks at the evidence that Deputy Thurman testified to. He stated Mr. Marquette told him he had no job, but he had bought a car for $500. He had $612 in cash on him, two cell phones with one continuously ringing, the address book, the scale with residue, the bindles and the baggies, the additional baggies. Based on all of that, the Court would find without a reasonable doubt Mr. Marquette possess[ ed] a controlled substance. With the admission of selling the meth and made the $2,000 in the last two months, the Court would have to find that Mr. Marquette is guilty of the crime as charged. The Court did go through on the difference. Obviously, I looked at the pictures. One of the things is a gram is a lot smaller than I envisioned it. Even though I've seen them in trial, it's usually the jury that gets to look at the evidence closely. I actually got to look at the evidence. A gram is a lot smaller than expected. Deputy Thurman never testified that the scale that he used at the property room was certified. He did say he could have misread the scale or transposed the number. When the Court looks at the totality, all of the witnesses testified the envelopes appeared to be in the same condition, the pictures, also, showing the size and the actual drugs, themselves. Even the less than 6.2 grams is a small amount in consideration compared to what I had expected. The Court did note that. Deputy Thurman did say he wiped down the scale. Therewas nothing on it at the time he weighed it. Deputy Hixson, Deputy Thurman and the crime lab, Mr. Allen, all testified that they all appeared to be in the same condition as when they had it.
RP (Apr. 18,2013) at 227-29.
After trial, the trial court entered no written findings of fact or conclusions of law.
After Larry Marquette filed his opening appellate brief, the trial court entered findings of
fact and conclusions oflaw for both the CrR 3.5 hearing and the trial. The findings for
disputed facts at the CrR 3.5 hearing read, in relevant part:
2. Mr. Marquette understood his Miranda rights. He testified that the reason that he said he didn't understand his rights was because he was angry and knew that he was going to jail anyway. 3. Deputy Thurman did not offer anything to Mr. Marquette in exchange for his waiver of rights. Deputy Thurman would have ordered an impound of the car so that he could apply for a search warrant. Deputy Thurman had the ~ight to impound it for that reason. Mr. Marquette said that he couldn't afford to get the car out if it were impounded. The deputy did not offer something to the defendant to get him to waive any rights.
CP at 254. The trial court entered one conclusion of law for the CrR 3.5 hearing:
The statements made by Mr. Marquette to Deputy Thurman were made after Mr. Marquette had been advised of his Miranda warnings and after Mr. Marquette made a knowing, intelligent and voluntary waiver of those rights, as shown by his signing the rights card. The statements are admissible at trial.
CP at 254.
LA W AND ANALYSIS
Issue 1: Whether the trial court's entry, after the appeal, offindings offact and
conclusions oflaw for the trial and the erR 3.5 hearing demands reliefon appeal for
Larry Marquette?
Answer 1: No.
Larry Marquette assigns error to the trial court's failure to enter written findings of
fact and conclusions of law at the end of the bench trial and after the hearing on his CrR
3.5 motion to suppress. The State responds that the assigned error is now moot since the
No. 3l794-3-III State v. Marquette
trial court later entered findings and conclusions filed with this court after Marquette filed
his opening brief. Marquette did not file a reply brief addressing whether he still assigns
error to the trial court's initial omissions. We agree with the State that the issue is moot.
erR 3.5(c) reads:
After the hearing, the court shall set forth in writing: (1) the undisputed facts; (2) the disputed facts; (3) conclusions as to the disputed facts; and (4) conclusion as to whether the statement is admissible and the
reasons therefore.
erR 6.1(d) provides:
In a case tried without a jury, the court shall enter findings of fact and conclusions of law. In giving the decision, the facts found and the conclusions of law shall be separately stated. The court shall enter such findings of fact and conclusions of law only upon 5 days' notice of presentation to the parties.
Both court rules require entry of written findings of fact and conclusions of law
after their respective hearings. The failure to enter written findings of fact and
conclusions of law as required by erR 6.1 (d) requires remand for entry of written
findings and conclusions. State v. Head, 136 Wn.2d 619, 624, 964 P.2d 1187 (1998).
Reversal may be appropriate where a defendant can show actual prejudice resulting from
the absence of findings and conclusions or following remand for entry of the same.
Head, 136 Wn.2d at 624. This court will not infer prejudice from a delay of entering
such findings and conclusions. Head, 136 Wn.2d at 625. That burden lays with a
defendant. Head, 136 Wn.2d at 625.
16 No. 31794-3-III State v. Marquette
A case is technically moot if the court can no longer provide the basic relief
originally sought. Snohomish County v. State, 69 Wn. App. 655, 660, 850 P.2d 546
(1993). Here, the trial court entered written CrR 6.1(d) and CrR 3.5(c) findings of fact
and conclusions of law on May 1, 2014, and the State timely added them to the appellate
record. Remand serves no purpose, since the trial court would repeat the same entry.
Thus, the issue is moot. Larry Marquette has asserted no prejudice by reason of late entry
of the findings and conclusions, so reversal is not warranted.
Issue 2: Whether the trial court erred in denying Marquette's CrR 3.6 motion to
suppress items obtained in the warrantless search o/his car?
Answer 2: No.
Larry Marquette contends the trial court erred in denying his motion to suppress
the evidence obtained during the search of his car. Marquette specifically assigns error to
the trial court's written conclusion oflaw 4: "Deputy Thurman advised the defendant of
his Miranda and Ferrier warnings. The defendant consented to the search of the car. The
evidence was seized after the defendant gave consent to search. There was no violation
of Arizona v. Gant." CP at 131. Marquette argues: (1) Trooper Kristopher Stone's visual
observation of the bag of methamphetamine on the car floorboard was not sufficient to
justity a warrantless search of Marquette's vehicle, and (2) Marquette's consent to search
the vehicle was not given freely and voluntary. We rule that Trooper Stone's
observations of methamphetamine inside the car rendered the search of the car lawful.
No. 31794-3-111 . State v. Marquette
Therefore, we affirm the trial court's denial of Marquette's CrR 3.6 motion to suppress
without addressing whether Marquette consented to the search.
We review a trial court's denial of a CrR 3.6 suppression motion to determine
whether substantial evidence supports the trial court's challenged findings of fact and, if
so, whether the findings support the trial court's conclusions of law. State v. Cole, 122
Wn. App. 319, 322-23, 93 P.3d 209 (2004). Challenged findings entered after a
suppression hearing that are supported by substantial evidence are binding, and, where
the findings are unchallenged, they are verities on appeal. State v. O'Neill, 148 Wn.2d
564,571,62 P.3d 489 (2003). Larry Marquette does not challenge any of the findings of
fact entered by the trial court upon denying the motion to suppress evidence. Therefore,
we base our ruling on the facts found by the lower court.
Larry Marquette argues that Trooper Stone's and Deputy Jeff Thurman's
observation of a bag of what appeared to be methamphetamine on the car floorboard
during a safety check of the car does not satisty the open view exception to the warrant
requirement of article I, section 7 of the Washington Constitution. Marquette may be
correct that the open view doctrine does not apply. Nevertheless, if the open view
exception does not apply, the plain view exemption does.
Searches conducted outside the judicial process, without prior approval by judge
or magistrate, are per se unreasonable under the Fourth Amendment and article I, section
7 of the Washington State Constitution, subject only to a few specifically established and
well-delineated exceptions. Arizona v. Gant, 556 U.S. 332, 338, 129 S. Ct. 1710, 173 L.
Ed. 2d 485 (2009); State v. Duncan, 146 Wn.2d 166, 171,43 P.3d 513 (2002).
Washington allows a few jealously and carefully drawn exceptions to the warrant
requirement, which include exigent circumstances, searches incident to an arrest,
inventory searches, plain view searches, open view searches, and Terry investigative
stops. Terry v. Ohio, 392 U.S. 1,88 S. Ct 1868,20 L. Ed. 2d 889 (1968); State v.
Garvin, 166 Wn.2d 242,249,207 P.3d 1266 (2009). The State bears the burden of
demonstrating that a warrantless seizure falls into a narrow exception to the rule. State v.
Doughty, 170 Wn.2d 57, 61, 239 P.3d 573 (2010).
The plain view doctrine deems a seizure reasonable when: (1) there is a prior
justification for intrusion by a law enforcement officer into the accused's sphere of
privacy, (2) the officer inadvertently discovers contraband, and (3) the officer
immediately knows the contraband is evidence of a crime. State v. Chrisman, 100 Wn.2d
814,819,676 P.2d 419 (1984); State v. Claflin, 38 Wn. App. 847, 853,690 P.2d 1186
(1984). The plain view doctrine, however, does not justify the initial intrusion into the
protected area. State v. Kennedy, 107 Wn.2d 1, 9, 726 P.2d 445 (1986). The officer must
have some legitimate reason to be in a place not open to the public. In contrast, under the
"open view" exception, the officer espies evidence of a crime while in an area open to the
public, alternatively calle~ a non constitutionally protected area. State v. Seagull, 95
Wn.2d 898, 901-02, 632 P .2d 44 (1981). If an officer sees evidence of a crime in a
19 I 1 No. 31794-3-111 State v. Marquette
public area, the officer has not even conducted a search for purposes of the constitution.
State v. Kennedy, 107 Wn.2d at 10 (1986).
In Kennedy, our Supreme Court explained the difference between "plain view"
and "open view."
Whereas a "plain view" situation involves an officer viewing an item after a lawful intrusion into a constitutionally protected area, "open view" involves an observation from a nonconstitutionally protected area. State v. Seagull, 95 Wn.2d 898, 901-02, 632 P.2d 44 (1981). Hence, if an officer, after making a lawful stop, looks into a car from the outside and sees a weapon or contraband in the car, he has not searched the car. Because there has been no search, article [1], section 7 is not implicated. Once there is an intrusion into the constitutionally protected area, article [1], section 7 is implicated and the intrusion must be justified if it is made without a warrant.
107 Wn.2d at 10. (emphasis omitted).
State Patrolman Kristopher Stone spotted the methamphetamine inside Larry
Marquette's car before Deputy leffThurman saw the drugs. Stone did not enter the car,
but observed the drug by looking inside the car. The car was parked in a dirt lot and
conceivably anyone could walk by the car, look inside, and notice the white crystalline
substance. In other words, the evidence could have been in open view. To give
Marquette the benefit of the doubt, however, we will analyze the seizure of the drug as if
the plain view exemption applies.
Under Washington case law, the plain view exemption justified the search and
seizure of the methamphetamine. Larry Marquette's failure to signal his tum supported
Deputy Thurman's stop of Marquette's vehicle. Marquette's furtive move inside the car
validated Trooper Stone's sweep of the area under Marquette's car seat. To sweep that
area, Stone necessarily needed to approach the car. Thus, Stone was justified to be near
or against the car when he inadvertently saw the white powder and immediately knew the
powder to be methamphetamine.
A Terry stop and frisk may extend into the car if there is a reasonable suspicion
that the suspect is dangerous and may gain access to a weapon in the vehicle. State v.
Glossbrener, 146 Wn.2d 670,680,49 P.3d 128 (2002). When police conduct a Terry-
like search of a vehicle, the scope of the search should be sufficient to assure the officer's
safety. Kennedy, 107 Wn.2d at 12. A protective search for weapons must be objectively
reasonable, though based on the officer's subjective perception of events. Glossbrener,
146 Wn.2d at 681.
In State v. Kennedy, the Supreme Court held an officer's search of the area under
the driver's seat of a car pulled over on suspicion of its driver having just purchased
marijuana was reasonable as a Terry frisk. The officer observed the driver make a furtive
movement prior to being pulled over, and a passenger sat in the front seat while the stop
was made. The Court held that our constitution allowed the officer to make a limited
search of the passenger compartment to assure a suspect person in the car does not have
access to a weapon within the suspect's or passenger's area of control. Kennedy, 107
Wn.2d at 13. Because the officer was legitimately within the automobile's front seat, the
marijuana discovered in the officer's sweep under the seat fell under the plain view
warrant exception.
Fourteen years later, the Supreme Court refined this standard in Glossbrener,
holding that an officer's Terry frisk of a car after the officer witnessed the driver make a
similar "furtive gesture" was not objectively reasonable based on the intervening actions
of the officer and driver. Glossbrener, 146 Wn.2d at 681. The officer did not conduct
the Terry frisk ofthe car until after Glossbrener told the officer that his movements were
made in an attempt to hide an open container of alcohol, the officer conducted a field
sobriety test on Glossbrener and frisked his person, and the officer allowed Glossbrener
to sit in the car while the officer checked for warrants.
The Glossbrener Court contrasted Glossbrener's case with State v. Larson, 88 Wn.
App. 849, 856-57, 946 P.2d 1212 (1997), where this court upheld as reasonable an
officer's Terry frisk of a vehicle after the driver was out of the vehicle, where the officer
saw the driver make a similar furtive gesture prior to pulling over. The Court found the
cases distinguishable because, unlike in Glossbrener, Larson would have returned to his
vehicle to retrieve his car registration and could have gained access to a weapon the
officer suspected he hid by the furtive gesture. Glossbrener, 146 Wn.2d at 684.
Larry Marquette's case is more like Larson than Glossbrener because, like
Larson, Marquette was stopped for a traffic infraction, and would need to access his car
again to retrieve his car's registration. Thurman would likely later allow Marquette to
drive away in his car. Although Marquette gave a nonthreatening reason for the furtive
gesture upon pulling over and complied with Thurman's request to exit the car, this
appeallacks the "intervening actions" that would lead an outsider to doubt an officer's
objective concern for his safety. Thurman was justified in asking Trooper Stone to
conduct a Terry frisk of the car to ensure it was free of weapons.
Issue 3: Whether the trial court erred in admitting testimony about the chemical
composition ofevidence, when the arresting officer testified to a measurement ofthe
controlled substance inconsistent with the chemical lab 's measurement?
Answer 3: No.
At trial and on appeal, Larry Marquette contends that the trial court improperly
admitted evidence of the methamphetamine and drug paraphernalia discovered during the
search of his vehicle. He emphasizes a significant discrepancy between the weight of the
methamphetamine recorded by Deputy Jeff Thurman and the weight recorded at the
Washington State Patrol's Crime Laboratory. He argues that the State must establish a
chain of custody with sufficient completeness to render it improbable that the original
items taken from the car had been exchanged with another or been contaminated or
tampered with. Marquette contends that the weight discrepancy destroys the chain of
custody. In response, the State of Washington contends that gaps in the chain of custody
go to weight, not admissibility. We agree with the State.
23 No. 31794-3-111 State v. Marquette
Before a physical object connected with the commission of a crime may properly
be admitted into evidence, it must be satisfactorily identified and shown to be in
substantially the same condition as when the crime was committed. Gallego v. United
States, 276 F.2d 914,917 (9th Cir. 1960); State v. Campbell, 103 Wn.2d 1,21,691 P.2d
929 (1984). Factors to be considered include the nature of the article, the circumstances
surrounding the preservation and custody of it, and the likelihood of intermeddlers
tampering with it. State v. Campbell, 103 Wn.2d at 21. The proponent need not identify
the evidence with absolute certainty and eliminate every possibility of alteration or
substitution. State v. Campbell, 103 Wn.2d at 21. Identity and condition of an exhibit
are always subject to rebuttal. State v. Music, 79 Wn.2d 699,713,489 P.2d 159 (1971),
vacated in part on other grounds, 408 U.S. 940, 92 S. Ct. 2877, 33 L. Ed. 2d 764 (1972).
The jury is free to disregard evidence upon its finding that the article was not properly
identified or there has been a change in its character. State v. Campbell, 103 Wn.2d at
21. However, minor discrepancies or uncertainty on the part of the witness will affect
only the weight of evidence, not its admissibility. State v. Campbell, 103 Wn.2d at 21.
The trial court is necessarily vested with a wide latitude of discretion in determining
admissibility, which will not be disturbed absent clear abuse. State v. Campbell, 103
Wn.2d at 21; Kiessling v. Nw. Greyhound Lines, Inc., 38 Wn.2d 289,295,229 P.2d 335
(1951).
The State presented evidence showing the transfer of custody of the
methamphetamine from the Spokane Sheriff's Office to the Washington State Patrol's
Crime Laboratory. This believable evidence defied suggestions that the
methamphetamine measured by the laboratory was different from the methamphetamine
seized from Larry Marquette's car. The trial court heard no testimony questioning the
credibility of the crime lab chemist who tested and verified the methamphetamine. The
trial court reviewed photos of the samples and the samples themselves, and determined
that the discrepancy in measurements was likely one of transcription by Deputy
Thurman. The trial court was thus well within its discretion in admitting the exhibits.
Larry Marquette urges this court to apply a more stringent test in light of State v.
Roche, 114 Wn. App. 424, 59 P.3d 682 (2002). That case has little application here.
In State v. Roche, this court granted James Roche a new trial after uncovered
evidence showed that the Washington State Patrol chemist who testified in his case
divested and ingested the heroin samples he tested at the crime lab. This court held that a
rational trier of fact could reasonably doubt the chemist's credibility, and thus the State
needed to relay the foundation for admitting the test results against Roche at a new trial.
State v. Roche is a unique and hopefully one-of-a-kind case. Other than the
differences in measurements, the credibility of the lab chemist and arresting officer here
are not challenged with regard to taking the measurements. Contrary to Marquette's
argument, no heightened standard should apply.
25 No. 3 1794-3-III State v. Marquette
Issue 4: Whether sufficient evidence supported a conviction for possession with
intent to deliver a controlled substance?
Answer 4: Yes.
Finally, Larry Marquette contends the State failed to meet its burden in proving he
possessed methamphetamine with intent to deliver, in violation ofRCW 69.50.401.
RCW 69.50.401(1) provides, in relevant part: "Except as authorized by this chapter, it is
unlawful for any person to manufacture, deliver, or possess with intent to manufacture or
deliver, a controlled substance."
This assignment of error repeats but restates Larry Marquette's chain of custody
argument. Marquette contends that the statute requires proof beyond a reasonable doubt
that possession and intent to deliver refer to the same quantity of the controlled substance
in question, and that the State cannot meet this burden as the quantity reported by Deputy
Thurman is substantially different than the amount reported by the Washington State
Patrol Crime Laboratory. We reject the argument for the reasons given earlier. We also
question the validity of the argument because Marquette fails to identity the measurement
to be used for purposes of his possession and the measurement to be used for purposes of
his anticipated delivery.
Evidence is sufficient if, viewed in the light most favorable to the State, any
rational trier of fact could find the essential elements of the crime charged beyond a
reasonable doubt. State v. Robbins, 68 Wn. App. 873, 875, 846 P.2d 585 (1993). A
defendant challenging sufficiency of the evidence at trial admits the truth of the State's
evidence and all reasonable inferences therefrom. State v. Witherspoon, 180 Wn.2d 875,
883,329 P.3d 888 (2014).
Larry Marquette is correct that the State must prove a defendant possessed the
same controlled substance he intended to deliver. Robbins, 68 Wn. App. at 876.
However, the State met that burden here. Although the two weighings of
methamphetamine differed, the trial court considered the discrepancy and found it did not
call into question the validity of the evidence. The trial court also considered the
attendant circumstances and found the evidence sufficient to reasonably infer intent to
deliver. Those circumstances included small baggies, a scale, cash, and a repeatedly
ringing cell phone in Marquette's possession. Sufficient evidence supports the
conviction.
CONCLUSION
We affirm the trial court's denial of Larry Marquette's motion to suppress
evidence and motion to suppress his inculpatory statement. We affirm his conviction.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
i, 28
I I