FILED MAY 8, 2018 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) ) No. 34496-7-III Respondent, ) ) v. ) ) MICHAEL NELSON PECK, ) UNPUBLISHED OPINION ) Appellant. )
SIDDOWAY, J. — Michael Peck appeals his convictions for first degree burglary,
possession of a stolen vehicle, possession of a controlled substance with intent to deliver,
third degree theft, and possession of burglary tools. We agree with his challenge to the
trial court’s denial of his motion to suppress evidence of drugs and paraphernalia found in
the warrantless search of a closed container and reverse the controlled substance
conviction that was based on that evidence. We find no other error or abuse of discretion
and affirm his remaining convictions.
FACTS AND PROCEDURAL BACKGROUND
On a Friday night in January 2016, Laura Poulter traveled to Cle Elum to play
cards with friends. At around 1:00 a.m. she was telling her friends about a new security
system on her rural Ellensburg home that she could monitor remotely and pulled out her No. 34496-7-III State v. Peck
cell phone to show them. What they saw was a truck in her driveway and someone who
appeared to be taking items from her home. One of her friends called 911 and described
the events being captured by the surveillance cameras, which soon included the presence
of a second person. Kittitas County sheriff’s deputies were dispatched and Ms. Poulter
left to drive home.
When officers arrived at Ms. Poulter’s house, Michael Peck and Clark Tellvik
were found standing in deep snow outside a Dodge Dakota truck that was hopelessly
stuck in Ms. Poulter’s unplowed driveway. The center glass on the rear window of the
truck had been broken out, its ignition had been punched, and a screwdriver had to be
used to start the vehicle. Officers ran the truck’s license plate and confirmed it had been
reported stolen only two days earlier. The truck’s owner would later testify that he never
drove the Dakota in snow because it had high performance “racing slicks” rather than
normal tires and couldn’t be safely driven in snow or on ice. Report of Proceedings
(RP)1 at 383.
Mr. Peck, who had been the passenger in the truck, was read his Miranda2 rights
and agreed to talk to a responding officer. He claimed that Mr. Tellvik had picked him
up earlier that evening to go for a drive since neither man was getting along with his
1 All Report of Proceedings citations refer to the report of proceedings that begins with proceedings on April 29, 2016, and includes the trial. 2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 2 No. 34496-7-III State v. Peck
respective girlfriend. According to Mr. Peck, they ended up in the vicinity of Ms.
Poulter’s home and, not knowing how to get back to the highway or freeway, had pulled
in to ask for directions. No one answered Mr. Tellvik’s knock on the door. Upon trying
to leave, they found they were stuck in the snow. They retrieved hay from an open barn,
mats from doorways, and eventually a piece of scaffolding to place under the truck’s tires
in an effort to get out, but to no avail. Mr. Peck denied that either he or Mr. Tellvik had
broken into the home or any closed outbuilding.
When the officer asked Mr. Peck if anything in the truck belonged to him, Mr.
Peck at first said that nothing was his, but then corrected himself, saying he had a cell
phone inside the truck and that a battery and bag of tools in the bed of the truck were his.
He explained that on arriving to pick him up, Mr. Tellvik said the truck he was driving
was not running very well, so Mr. Peck brought the battery and tools along “just in case.”
RP at 525.
Upon Ms. Poulter’s return to her home, she told officers she believed the battery
and bag of tools in the back of the truck were hers and had been taken from her shop, her
carport area, or her tool shed. She pointed out that the door to her shop, which she had
left locked, was now open. Officers could see signs of forced entry on and below the
doorway to the shop and found a crowbar near the truck. Surveillance video would later
show Mr. Tellvik using the crowbar to break into the shop.
3 No. 34496-7-III State v. Peck
After Mr. Peck and Mr. Tellvik were transported to jail, officers remaining at the
scene searched the truck and prepared it for impound. During the search, officers found a
black zippered nylon case wedged under the passenger seat that looked like it was
designed to hold compact disks (CDs). Officers opened the case and found packaged
methamphetamine, an electronic scale, and a smoking pipe.
In the days following the burglary, Ms. Poulter arranged for the person who had
installed her surveillance system to help her retrieve video recorded of the men’s
presence on the property so she could provide it to police. Ms. Poulter reviewed the
video herself, and thought she saw one of the men drop a gun onto the ground. She
called the police to describe what she saw and told them the gun was probably still buried
in snow on her driveway, which was by that time snow packed and recently plowed.
Officers were shown the relevant footage by Ms. Poulter, which they agreed appeared to
show Mr. Tellvik place something on the ground near the driver’s side door of the truck
and kick snow over it just as the lights of the patrol cars could be seen approaching.
Officers searched the area with a metal detector and located a handgun.
Mr. Peck was charged as a principal or accomplice with first degree burglary,
possession of a stolen vehicle, possession with intent to deliver a controlled substance,
third degree theft, and making or having burglary tools. The first three counts included
charges that Mr. Peck or an accomplice were armed with a firearm.
4 No. 34496-7-III State v. Peck
Before trial, Mr. Peck moved the trial court to appoint a forensic media expert to
assist with his defense at a projected cost of $7,164. He argued that the videotape from
Ms. Poulter’s surveillance system had an unexplained seven minute gap and he wanted an
expert to examine it for possible alteration or tampering and to enhance images as
needed. At argument of the motion, the court questioned the relevance of the gap, asking
if something happened during that time period, to which defense counsel responded,
“[W]e don’t know. There could be.” RP at 8. She elaborated:
[DEFENSE COUNSEL]: . . . [W]hat I need an expert for—is that— the—the gap on this—video purports to show the defendants doing various things, mostly trying to dig their way out of the snow and move their car. But—there are—there are some enhancements that might need to be done. There are some allegations of a gun.
RP at 9. The court confirmed that the prosecutor intended to offer the videotape at trial,
but commented that he was being asked to pay a substantial amount for an investigator,
“And I don’t see why the court should do that right now.” RP at 10. It denied the
motion.
Also before trial, Mr. Peck moved to suppress evidence obtained during the
inventory search of the truck, specifically the drugs and paraphernalia found when
officers opened the CD case found under the passenger seat. During argument of the
motion, the prosecutor elicited testimony from Corporal Zach Green, who attached
importance to the fact that the Dodge Dakota had been determined to be stolen and that
5 No. 34496-7-III State v. Peck
when asked whether any property in the truck was his, Mr. Peck claimed to own only a
cell phone, a car battery, and a bag of tools. The corporal also testified that the search
was being conducted pursuant to department inventory policy.
Deputy Michael McKean also testified at the suppression hearing and explained
the reason for the inventory search as being, “We want to make sure there’s nothing
inside that vehicle that the owner could be held responsible for if it’s illegal. We don’t
want to return any drugs, any weapons, anything with that vehicle that shouldn’t be in it.”
RP at 104. He testified that an inventory search protects the sherriff’s office, the
registered owner, and the tow company from someone claiming something that was
inside the vehicle is now missing.
At the conclusion of argument, the court denied the motion to suppress, finding
the search to have been a valid inventory search and therefore an exception to the warrant
requirement. The trial court did not enter written findings of fact and conclusions of law
until well after trial and the commencement of this appeal.
The jury acquitted Mr. Peck of the count charging him with third degree theft of
the battery and tools, but found him guilty of the remaining charges. It found that he or
an accomplice had been armed with a firearm in committing the the burglary, possession
of a stolen vehicle, and controlled substance crimes. Mr. Peck appeals.
6 No. 34496-7-III State v. Peck
ANALYSIS
Mr. Peck assigns error to the trial court’s denial of his motion to suppress, its
failure to enter timely findings of fact and conclusions of law on that motion, and its
denial of his motion to appoint a forensic media expert.
Motion to suppress
Article I, section 7 of the Washington Constitution provides that “[n]o person shall
be disturbed in his private affairs . . . without authority of law.” “Authority of law”
requires a valid warrant unless one of a few jealously guarded exceptions to the warrant
requirement applies. In re Pers. Restraint of Nichols, 171 Wn.2d 370, 379, 256 P.3d
1131 (2011) (Fairhurst, J., dissenting). One of those jealously guarded exceptions is a
valid inventory search by law enforcement incident to impoundment. State v. Wisdom,
187 Wn. App. 652, 671, 349 P.3d 953 (2015).
Police may make a limited inventory of the contents of a vehicle lawfully and
necessarily taken into custody, not for the purpose of uncovering evidence of a crime, but
to protect the vehicle owner’s belongings and protect the police from liability against
claims of lost or stolen property. State v. Houser, 95 Wn.2d 143, 147-48, 622 P.2d 1218
(1980). In order to justify a warrantless search on grounds of inventory incident to a
lawful impoundment, the State must demonstrate that the impoundment was lawful and
that the inventory search was proper and not a pretext for an investigative search. State v.
7 No. 34496-7-III State v. Peck
Simpson, 95 Wn.2d 170, 188-89, 622 P.2d 1199 (1980) (plurality opinion). A motor
vehicle may be impounded and an inventory search conducted when, as here, an officer
has probable cause to believe the vehicle was stolen. State v. Barajas, 57 Wn. App. 556,
560-61, 789 P.2d 321 (1990).
An inventory search must be restricted to the areas required to fulfill the purpose
of the search. State v. Tyler, 177 Wn.2d 690, 701, 302 P.3d 165 (2013); Houser, 95
Wn.2d at 154. If officers conducting an inventory search encounter a locked
compartment or closed container, it cannot be opened absent exigent circumstances or the
consent of the owner. Wisdom, 187 Wn. App. at 675-76; Houser, 95 Wn.2d at 158; State
v. White, 135 Wn.2d 761, 771-72, 958 P.2d 982 (1998). If a locked or closed container is
encountered, absent exigency or consent, the officers must inventory the container as a
sealed unit. See Houser, 95 Wn.2d at 158-59. Here, the officers opened a closed
container in the absence of any exigency and without consent. Before opening it, they
needed a warrant.
The State attempts to distinguish Wisdom by pointing out that in Wisdom the
defendant had acknowledged owning the container in which drugs were found whereas
here Mr. Peck, by claiming to own only a cell phone, battery, and bag of tools, implicitly
denied owning the CD case. In the suppression hearing below, Corporal Green and the
trial court also attached importance to Mr. Peck’s implicit disclaimer of ownership. But
8 No. 34496-7-III State v. Peck
where a crime charged is a possessory crime such as the controlled substance crime here,
the law recognizes a forced incrimination dilemma presented to a defendant and affords
the defendant automatic standing to contest a search. A defendant has automatic standing
to challenge a search if two elements are present: (1) possession is an essential element of
the offense with which the defendant is charged and (2) he or she was in possession of
the contraband at the time of the contested search or seizure. State v. Evans, 159 Wn.2d
402, 407, 150 P.3d 105 (2007). Both elements are present here.3
The court erred in denying the motion to suppress. Reversal of the conviction for
possession of a controlled substance renders moot Mr. Peck’s assignment of error to the
trial court’s failure to timely enter findings of fact and conclusions of law following the
suppression hearing.
Denial of motion to appoint defense expert
CrR 3.1(f)(1) provides that “[a] lawyer for a defendant who is financially unable to
obtain investigative, expert, or other services necessary to an adequate defense in the case
may request them by a motion to the court.” A trial court shall authorize the services
“[u]pon finding the services are necessary and that the defendant is financially unable to
obtain them.” CrR 3.1(f)(2).
3 We do not examine the issue of abandonment. It was not a basis for the State’s justification of the search in the suppression hearing and the State does not attempt to raise it for the first time on appeal. 9 No. 34496-7-III State v. Peck
The right to effective assistance of counsel requires that the State pay for experts
for an indigent defendant when those experts are necessary. State v. Dickamore, 22 Wn.
App. 851, 854, 592 P.2d 681 (1979). This court has held that “a defendant’s
constitutional right to the assistance of an expert witness ‘is no broader than his right to
petition for state paid services under CrR 3.1(f).’” State v. Mines, 35 Wn. App. 932, 935,
671 P.2d 273 (1983) (quoting Dickamore, 22 Wn. App. at 854). The Washington
Supreme Court has held that CrR 3.1(f) mandates the appointment of an expert at public
expense only when “necessary to an adequate defense.” State v. Young, 125 Wn.2d 688,
692, 888 P.2d 142 (1995).
A trial court’s determination of whether expert services are necessary for an
indigent defendant’s adequate defense is reviewed for abuse of discretion. State v. Kelly,
102 Wn.2d 188, 201, 685 P.2d 564 (1984). Discretion is abused when it is exercised on
untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12,
26, 482 P.2d 775 (1971).
The trial court denied Mr. Peck’s motion for a forensic media expert because he
failed to demonstrate that the testimony of such an expert was necessary to an adequate
defense. What Ms. Poulter knew about the condition of her property upon departing and
what she and responding officers found upon arriving and encountering Mr. Peck and Mr.
Tellvik was strongly corroborative of what was seen on the surveillance videotape.
10 No. 34496-7-III State v. Peck
Defense counsel could not point to any reason to question what the videotape showed.
When the trial court pressed defense counsel on the relevance of the reported gap in the
tape and what she hoped to learn or prove with the expert’s help, she admitted she didn’t
know. In essence, the defense hoped that something as yet unknown and unimagined
might prove exculpatory.
By stating it could not see a reason to approve engagement of the expert “right
now,” the trial court’s decision allowed Mr. Peck to renew his request if he could later
show that an expert’s services were needed for an adequate defense. The request was
never renewed. The trial court did not abuse its discretion.
STATEMENT OF ADDITIONAL GROUNDS
In a pro se statement of additional grounds, Mr. Peck raises one. He argues that
the State presented insufficient evidence that he was an accomplice to Mr. Tellvik’s
possession of a stolen vehicle and the corresponding firearm enhancement.
“The test for determining the sufficiency of the evidence is whether, after viewing
the evidence in the light most favorable to the State, any rational trier of fact could have
found guilt beyond a reasonable doubt.” State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d
1068 (1992). “[A]ll reasonable inferences from the evidence must be drawn in favor of
the State and interpreted most strongly against the defendant.” Id.
11 No. 34496-7-III State v. Peck
A person is guilty of possession of a stolen motor vehicle if he possesses a stolen
motor vehicle. RCW 9A.56.068. The State must prove that the defendant acted with
knowledge that the motor vehicle had been stolen. State v. Porter, 186 Wn.2d 85, 90,
375 P.3d 664 (2016). A person knows of a fact by being aware of it or having
information that would lead a reasonable person to conclude the fact exists. RCW
9A.08.010(1)(b). Both circumstantial evidence and direct evidence are equally reliable to
establish knowledge. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
“When a person is found in possession of recently stolen property, slight corroborative
evidence of other inculpatory circumstances tending to show his guilt will support a
conviction.” State v. Portee, 25 Wn.2d 246, 253-54, 170 P.2d 326 (1946).
Jurors were instructed that a person is an accomplice if, with knowledge that it
will promote or facilitate the commission of a crime, he does any number of things, one
being to aid the person in commission of the crime. They were told that “aid” means all
assistance, however given, although it must consist of more than mere presence and
knowledge of the other person’s criminal activity. Clerk’s Papers at 152.
Mr. Peck admitted to officers that when picked up in the Dodge Dakota, he knew
it was not the vehicle Mr. Tellvik usually drove. It was apparent that the truck’s center
back window had been broken out, its stereo had been removed, and its ignition had been
punched. Asked by an officer if he didn’t think it odd that Mr. Tellvik started the truck
12 No. 34496-7-III State v. Peck
with a screwdriver, Mr. Peck answered no, and that he’d “had vehicles like that.” RP at
520. Jurors could reasonably view that as not credible, and as betraying consciousness of
guilt on Mr. Peck’s part. Viewed in the light most favorable to the State, the visible
hallmarks of a stolen vehicle provided enough information to lead Mr. Peck to conclude
that the truck was stolen.
In closing argument, the prosecutor identified two types of assistance from Mr.
Peck that jurors could consider. First was his testimony that he had provided a car
battery and tools “just in case” he and Mr. Tellvik had trouble with the truck. Since
jurors acquitted Mr. Peck of theft of the battery and tools, they appear to have believed
that they were his. Second, the prosecutor reminded jurors of the video, and that when
stuck in the snow, it was Mr. Peck who was seen outside the truck pushing and taking
other steps to try to help Mr. Tellvik get the truck out.
As an accomplice to Mr. Tellvik’s possession of a stolen vehicle, Mr. Peck was
liable for the firearm enhancement if the State proved that Mr. Tellvik possessed a
firearm in committing the crime. See RCW 9.94A.825. The videotape and the eventual
location of a firearm at the location where the truck became stuck in the snow provided
sufficient evidence that Mr. Tellvik possessed a firearm in committing possession of the
stolen vehicle.
13 No. 34496-7-III State v. Peck
We reverse Mr. Peck's conviction for possession with intent to deliver a controlled
substance and the associated firearm enhancement, affirm his remaining convictions, and
remand for resentencing.
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.
:£2~w~ Siddoway, J.
I CONCUR:
Pennell, A.CJ.
14 No. 34496-7-III
KORSMO, J. (dissenting) - An asserted right of privacy under art. I, § 7 of our
state constitution still "must be reasonable to warrant protection." State v. Goucher, 124
Wn.2d 778, 784, 881 P.2d 210 (1994). There is nothing reasonable in allowing a
passenger in a stolen vehicle to challenge the scope of an inventory search conducted by
police with the intent to ascertain what property they have just taken into their possession
and to whom it might be returned. That is particularly the case where, as here, the person
asserting the privacy right expressly disclaimed ownership of the item searched. One
cannot both assert that an item is not his and still claim that the item is his "private
affair."
Given that I have previously expounded on the problems created by this court's
expanded restrictions on inventory searches in my dissent in State v. Wisdom, 187 Wn.
App. 652, 679-684, 349 P.3d 953 (2015) (Korsmo, J., dissenting), there is little more to
say here. The facts of this case do illustrate the problem, however. Wisdom extended the
requirement that locked items be inventoried as a unit to closed or zippered items, even
though unlocked. Here, what officers believed was a CD ( compact disk) case turned out
to be a container of controlled substances. It just as likely could have contained an
explosive or the Hope Diamond. Police cannot reasonably protect themselves from No. 34496-7-III State v. Peck-Dissent
claims or return property to its rightful owner if they are unable to look in unsecured
containers.
Mr. Peck's assertion of a privacy interest is not one that is reasonable under either
the state or federal constitution. Therefore, I respectfully dissent.