State v. Dane

948 P.2d 1326, 89 Wash. App. 226

• Court: Court of Appeals of Washington
• Decided: December 19, 1997
• Docket: No. 19465-1-II
• Status: Published

Opinions

Armstrong, J.

Elizabeth Dane was arrested for smuggling marijuana and heroin into Clallam Bay Corrections Center. She appeals a jury conviction for two counts of possession of a controlled substance with intent to deliver. She claims that the trial court erred in admitting the drugs and her confession because (1) the correctional investigators had no authority to detain and question her, and (2) even if the correctional investigators had such authority, they exceeded the scope of a Terry stop. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The State raises various issues on cross-appeal. We reverse and remand, holding that the motion to suppress should have been granted because the correctional officers had no authority to detain and question Mrs. Dane beyond a request to search, which, if refused, could have been followed only by expulsion from the facility. In view of our holding on this issue, we do not address the State’s appeal.

FACTS

William Dane is an inmate at Clallam Bay Corrections Center. In August 1994, correctional investigators¹ Lori Hansson and James Reno received an anonymous note indicating that inmate Doug Zibell was pressuring Mr. Dane to have his wife, Elizabeth, smuggle drugs into the prison. Reno and Hansson knew that drugs were often smuggled into the prison hidden in body cavities. And they knew Mr. and Mrs. Dane had scheduled conjugal visits for September and October 1994. The investigators started watching Mr. Dane, and they noticed he was associating with four inmates who had previous drug problems with prison authorities.²

Mrs. Dane visited the prison on October 11, passing through a locked gate at the parking lot entrance and two gates in the prison facility. Signs at both the parking lot and inner gate warn that any person entering is subject to search.³

In addition to the two signs, Mrs. Dane signed the prison search policy and a consent to search which stated that “she was subject to search and consenting to search as a condition [of] being within the prison to visit her inmate husband, and that if she refused to be searched she would be immediately escorted from the prison.”

After passing through the gates and signing the documents, Mrs. Dane went to a public area inside the prison. She testified that she needed to use the restroom because she drank a 44-ounce soft drink while driving to the prison. Investigator Hansson followed Mrs. Dane into the women’s restroom. Mrs. Dane was inside an “enclosed stall.”⁴ Hans-son introduced herself and said she needed a few minutes to speak with Mrs. Dane. Mrs. Dane did not use the toilet and agreed to follow Hansson into a private room used for attorneys and their clients.⁵ To get to the room, a visitor must enter through two secured doors and have a pass or an escort.⁶

Investigator Reno was waiting inside the private room. He advised Mrs. Dane of her Miranda rights; she replied that she understood and agreed to talk. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 A.L.R.3d 974 (1966). Reno saw that Mrs. Dane was very nervous, and he told Mrs. Dane he suspected her of smuggling contraband into the prison. Mrs. Dane denied it at first but then said: “I’m not admitting anything, but what if I gave it up to you.” After further discussion, Mrs. Dane asked Hansson and Reno for (1) protection for her husband and his property, (2) transfer of her husband to Spokane, and (3) no loss of good time for her husband. Reno said that he could help with the first two demands, but he could not do anything about Mr. Dane’s good time. The investigators and Mrs. Dane then discussed the dangers of Mrs. Dane carrying foreign substances inside her body. Mrs. Dane asked if she could go to a local store and remove the items, but Investigator Reno said that would “break the chain of evidence.” About 20 minutes after the interview began, Reno left the room to get Deputy Ron Cameron and Detective Shawn Madison.⁷ When Reno left the room, Mrs. Dane complained of a burning sensation in her vagina. Hansson told Mrs. Dane that she was “just going to have to wait until Mr. Reno came back with the sheriffs department.”

According to Deputy Cameron, Reno had previously arranged to have the officers present on October 11. Acting on Reno’s information, the officers had been parked in front of a store a few miles from the prison. They saw Mrs. Dane arrive and use the store’s restroom. Deputy Cameron followed her to the prison. The deputy posed as a visitor, entered the prison, and sat in the lobby. He saw Investigator Hansson follow Mrs. Dane into the restroom. Deputy Cameron saw the two exit the restroom, but he continued to wait in the lobby until contacted by Investigator Reno. After Reno told him that Mrs. Dane had admitted to carrying contraband, Deputy Cameron radioed Detective Madison and a Detective Sergeant Pierce, who were still at the store. He waited for them in a prison conference area.

Detective Madison entered the private room, introduced himself, and expressed his concern about the dangers of carrying drugs inside her body. Mrs. Dane then demanded immunity, but when Madison said he could not do that, she got up to leave. Madison then arrested her. Mrs. Dane told Madison that she was going to remove the drugs to avoid any harmful effects. Investigator Hansson escorted Mrs. Dane to the restroom where she removed 11 balloons from her body. Ten balloons contained marijuana and one balloon contained heroin. Mrs. Dane later made a taped statement admitting to the crime.

Mrs. Dane moved to suppress all the evidence obtained after Investigator Hansson “seized” Mrs. Dane in the restroom stall. The court decided to rule on the issue after the verdict. The jury convicted Mrs. Dane and the court then denied the motion to suppress, concluding that Investigator Hansson had a reasonable and articulable suspicion that Mrs. Dane was carrying contraband because of (1) the anonymous note, (2) Mr. Dane’s association with inmates known to have previous drug problems in the prison, and (3) Mrs. Dane’s nervous demeanor.

Mrs. Dane contends that the correctional investigators had no authority to detain and question her, and that even if they had such authority, they exceeded the scope of a Terry stop.⁸

ANALYSIS

Investigator Hansson testified that she may not arrest or detain visitors. She is correct; prison investigators are peace officers only “while acting in the supervision and transportation of prisoners, and in the apprehension of prisoners who have escaped.” RCW 9.94.050. Her testimony also conforms with the regulations governing the search of visitors at prisons,⁹ the purpose of which is to “prevent possible delivery of weapons, controlled substances, or contraband to residents.” WAC 275-80-905(1). According to the regulations, investigators may “frisk search” all visitors. WAC 275-80-905(1). And investigators may search a “visitor’s person” if they have a “real suspicion”¹⁰ that smuggling is imminent. WAC 275-80-905(2). But before initiating any search procedure, investigators must ask for the visitor’s consent so that the visitor may exercise the option of refusing. WAC 275-80-910(2), -915. If the visitor refuses, investigators may expel the visitor and revoke the visitor’s visitation rights. WAC 275-80-915. But if investigators have a “real suspicion substantially ahead of the arrival time of the visitor,” regulations require that the local police handle the search procedure. WAC 275-80-925(1).

Here, the investigators violated these search procedures. First, prison investigators had no authority to detain Mrs. Dane. See RCW 9.94.050. Second, the investigators never asked Mrs. Dane if they could search her. If they had, she could have invoked her option to refuse, and the consequence would have been expulsion, not prolonged questioning. Third, the investigators had at least a “few days” notice of Mrs. Dane’s visit, yet they did not allow police officials to handle the search procedures. Deputy Cameron was present in the lobby when Investigator Hansson led Mrs. Dane into the private room. We agree with the State, and Mrs. Dane concedes, that the prison officials had a reasonable suspicion to detain and question Mrs. Dane pursuant to Terry. But the WACs contemplate that this be done by police officers, not prison officials, whose authority is limited to requesting a search and expelling if consent is not granted. We find a case from New Mexico instructive on this issue: State v. Garcia, 116 N.M. 87, 860 P.2d 217 (Ct. App. 1993).

In Garcia, prison officials conducted a strip search under a “Statement of Understanding,” which visitors signed before entering the prison. Garcia, 860 P.2d at 220. The statement explained that upon entry to the prison grounds, all visitors would be questioned by the “Traffic Control Officer” and that vehicles could be searched. Garcia, 860 P.2d . The statement then noted that “[individuals who choose not to enter at this point will be escorted off institutional grounds.” Garcia, 860 P.2d at 220. The Statement also informed visitors that “[w]here there exists a reasonable suspicion that a particular visitor is attempting to introduce contraband into the Institution, the Duty Officer at the facility may order at any time that the visitor be subjected to a more thorough search.” Garcia, 860 P.2d at 220. In addition to the Statement, visitors signed a log informing them that “prior to entering the facility, upon reasonable cause, [visitors] may be subject to search.” Garcia, 860 P.2d at 220. “[I]f you choose not to enter,” it continued, “you will not be subject to a search and you will be escorted from the facility grounds.” Garcia, 860 P.2d at 220.

Frison officials had suspected visitor Diane Garcia of smuggling drugs. When she arrived at the prison, guards escorted her past two security doors into a conference room. A guard explained his suspicion and asked if he could strip-search her. Garcia refused. But instead of escorting her off the premises, as required by prison regulations, the official told her that if she did not consent, the state police would be contacted and a search warrant requested. After “further detention,” the case does not explain how long, Garcia agreed to a search and contraband was found. Garcia, 860 P.2d at 218. The New Mexico Court of Appeals ordered the evidence suppressed because “when Appellant refused to consent to the search, prison authorities should have escorted her off the premises.” Garcia, 860 P.2d at 221. When they did not, the officials “had no authority to conduct a search.” Garcia, 860 P.2d at 221.

We find Garcia persuasive and hold that Mrs. Dane’s confession and the subsequent seizure of contraband resulted from an unauthorized detention by the prison officials. The motion to suppress should have been granted. Garcia, 860 P.2d at 221; see State v. Rife, 133 Wn.2d 140, 150-51, 943 P.2d 266 (1997) (suppressing evidence following unauthorized warrant check); cf State v. Sweeney, 56 Wn. App. 42, 48-50, 782 P.2d 562 (1989) (suppressing evidence following violations of Job Corps regulations).

The dissent disagrees, citing People v. Turnbeaugh, 116 Ill. App. 3d 199, 451 N.E.2d 1016, 71 Ill. Dec. 862 (1983). In that case, a prison visitor challenged the search of his car by prison guards. He contended the guards failed to comply with the prison’s “internal regulations” that required, in the court’s words, “the option of leaving the premises instead of being searched.” Turnbeaugh, 451 N.E.2d at 1018, 1020. The Appellate Court of Illinois rejected the visitor’s argument because he did “not offer authority upon which [the court] might accord the violation some significance in the context of the case at bar.” Turnbeaugh, 451 N.E.2d at 1020. We agree. A prison’s internal policy is not necessarily the “equivalent of an administrative rule.” Melville v. State, 115 Wn.2d 34, 40, 793 P.2d 952 (1990). Because the visitor provided no authority that a prison’s internal policies created a governmental duty, the Turnbeaugh court properly rejected the argument. Melville, 115 Wn.2d at 40 (“Plaintiff has not established that a [Department of Corrections’] policy directive is the equivalent of an administrative rule which may create liability under appropriate circumstances.”); see State v. Rainford, 86 Wn. App. 431, 439-40, 936 P.2d 1210 (1997) (noting that “technical violations” of prison’s internal policies did not violate due process).¹¹

We reverse and remand for further proceedings consistent with this opinion. We assume that our holding will preclude further prosecution of the case. Because of this, we do not address the issues raised by the State on cross-appeal. In the event the State is able to re-try Mrs. Dane, consistent with this opinion, it may move for reconsideration of the issues raised in its cross-appeal.

Reversed and remanded.

Houghton, C.J., concurs.

1 The trial court found that the correctional investigators were not authorized to make arrests.

2 The investigators later concluded that Zibell was not pressuring Mr. Dane.

3 Parking lot sign:

Notice: Premises of Clallam Bay Correction Center: Any person and/or subject vehicle entering these premises is subject to search. It is prohibited to bring on the grounds any intoxicants, narcotics, dangerous drugs, firearms, explosives or dangerous weapon. Any person knowingly possessing a deadly weapon, narcotics, drugs or controlled substances upon these premises is guilty of a felony. Violators will be prosecuted.

Inner gate sign:

Notice: Premises of Clallam Bay Correction Center: Any person or vehicle entering these premises is subject to search. It is prohibited to bring on to the grounds any intoxicants, narcotics, dangerous drugs, firearms, explosive or dangerous weapon. Any person knowingly possessing a deadly weapon, narcotic drug or controlled substance upon these premises is guilty of a felony. Violators will he prosecuted.

4 Mrs. Dane testified that she was inside the stall and was about to take off her pants.

5 Investigator Hansson estimated the distance from the public area to the private room as 200 to 300 feet.

6 The State conceded at oral argument that Mrs. Dane was seized when she was led through two locked doors to the private conference room. State v. Lund, 70 Wn. App. 437, 446, 853 P.2d 1379 (1993).

7 Deputy Cameron is an officer of the Clallam County Sheriffs Department. Detective Madison is an officer of the Sequim Police Department. Both officers are assigned to the Clallam County Drug Task Force.

8 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

9 The Department of Social and Health Services promulgated the regulations in 1973 under RCW 43.17.060. Regulatory authority over prisons was transferred to the newly created Department of Corrections in 198Í. RCW 72.09.040. The Department of Corrections has never revised the WACs governing the searches of prison visitors.

10 WAC 275-80-805(7): “ ‘Real suspicion’ is a subjective suspicion supported by objective, articulable facts, which would reasonably lead an experienced prudent correctional institution staff member to believe that a crime is imminent, is occurring or has occurred.”

11 The dissent also relies on United States v. Davis, 482 F.2d 893 (9th Cir. 1973); State v. Custodio, 62 Haw. 1, 607 P.2d 1048 (1980); and State v. Manghan, 126 N.J. Super. 162, 313 A.2d 225 (1973). But these cases do not address the issue of prison guards conducting detentions and searches outside the scope of their regulations. Cf. 4 Wayne B. LaFave, Search and Seizure § 10.7(b), at 660 (3d ed. 1996) (criticizing Manghan because “need to prevent the introduction of contraband . . . into the jail ... is accomplished if the person declines to be searched and departs”).