FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON IN CLERK’S OFFICE MARCH 3, 2022 SUPREME COURT, STATE OF WASHINGTON MARCH 3, 2022 ERIN L. LENNON SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
) STATE OF WASHINGTON, ) ) No. 99546-0 Respondent, ) ) v. ) En Banc ) DANIEL ETHAN ELWELL, ) ) March 3, 2022 Filed:_____________ Petitioner. ) _______________________________)
YU, J. — This case concerns the open view doctrine and the right to counsel
in a criminal case. Petitioner Daniel Ethan Elwell was charged with one count of
residential burglary. He disagreed with his assigned trial counsel about a number
of issues, including the probable merit of a motion to suppress based on an alleged
unlawful search. Elwell ultimately filed a written motion to suppress the stolen
item, although counsel assisted by eliciting testimony and presenting oral argument
before the court.
The trial court denied Elwell’s motion to suppress, and he was convicted.
The Court of Appeals affirmed, holding that Elwell’s motion to suppress was State v. Elwell, No. 99546-0
properly denied on the basis of the open view doctrine and that Elwell’s right to
counsel had not been violated. We affirm in result.
The open view doctrine does not justify the police officer’s actions in this
case. Instead, we hold that the officer engaged in an unlawful, warrantless search
in violation of article I, section 7 of the Washington Constitution. Therefore, it
was error to deny Elwell’s motion to suppress. However, the error was harmless.
We further hold that Elwell was not deprived of the right to counsel. Thus, we
affirm his conviction.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. Factual background
On the morning of March 7, 2018, the manager of a Seattle apartment
complex near the University of Washington discovered that a large, arcade-style
video game (specifically, Pac-Man) was missing from the game room. Overnight
surveillance footage showed a person entering at about 4 a.m. and leaving at about
5:30 a.m. with the Pac-Man machine, a cardboard box, and a wheeled dolly. The
manager recognized the box and the dolly as belonging to the apartment complex.
She did not recognize the person, and they did “not have permission to enter or
take any items.” Clerk’s Papers (CP) at 5.
The apartment manager called the police, who responded at about 1 p.m.
Officers spoke to the manager, watched the surveillance footage, and then went
2 State v. Elwell, No. 99546-0
back to their duties. The officers did not have any particular suspects but thought
that “the person could still be potentially in the area,” so they were “keeping an eye
out.” Verbatim Report of Proceedings (VRP) (Oct. 31, 2018) at 193.
At about 2:20 p.m., the officers were driving near the apartment complex
when they saw Elwell on the sidewalk and stopped to question him. The officers
“immediately recognized” Elwell from the apartment complex’s surveillance
footage based on his clothing, his face, and a “large item that he was wheeling
around” that “appeared to be roughly the same size” as the Pac-Man machine. Id.
at 194-95. However, the object was covered by a red, opaque blanket.
One of the officers asked Elwell, “There wouldn’t happen to be a Pacman
machine in there; would there be?” Id. at 199. Elwell replied, “I don’t think so”
and “I found it in the garbage.” Id. The officer told Elwell that he matched “the
exact description of somebody that burglarized the building the other day and took
the Pacman machine,” and the officer asked Elwell to “show us what’s underneath
there.” Id. at 199-200. Elwell stated, “Everything I get is out of the garbage” and
stepped back from the object slightly. Id. at 200; Ex. 6, at 1 min., 25 sec. (officer’s
body cam video).
The officer reached out and “unwrapped the blanket and a plastic bag that
was on top of the box” to reveal a Pac-Man machine on a dolly, which the
apartment manager later identified as the stolen machine. Suppl. CP at 337. It is
3 State v. Elwell, No. 99546-0
undisputed that Elwell “did not give his verbal consent to search.” VRP (Oct. 31,
2018) at 203. Nevertheless, the officer testified he “did not feel that a warrant was
required” because Elwell “exactly matched the person” from the surveillance
footage and had with him “an item that’s the exact same size as the one that was
stolen before.” Id. at 209-10.
B. Procedural history
On March 12, 2018, Elwell was charged with one count of residential
burglary. His trial counsel was assigned in or around June but suffered a
concussion in September. As a result, trial counsel informed the court that he was
“not fit to go to trial” and requested a continuance. Status Hr’g (Sept. 17, 2018) at
3. Elwell did not object but made it clear that he would object if further
continuances were requested. Trial was set for October 15.
On October 10, Elwell’s counsel moved for another continuance due to his
injury. Elwell objected to the delay and requested a new attorney if assigned
counsel had become incapacitated. The court cautioned that a new attorney could
cause yet more delays but nevertheless set a hearing on Elwell’s motion to
substitute counsel. The court also granted trial counsel’s request for a continuance.
At the motion hearing, trial counsel explained that he and Elwell had several
areas of disagreement, including the nature of the charge, Elwell’s offender score,
whether to bring a motion to suppress, and whether to go to trial. Elwell added
4 State v. Elwell, No. 99546-0
that he was concerned by the delays, by his difficulty contacting counsel, and by
counsel’s recent concussion. The court denied the motion to substitute counsel,
explaining that trial counsel’s role was not to agree with Elwell but to give him
legal advice. Counsel also confirmed that his health had improved and that his
concussion would not hinder his effective representation of Elwell.
In his brief, trial counsel advised the court that Elwell wanted to bring a
motion to suppress on the theory that by removing the blanket and ripping off the
plastic wrapping that were covering the Pac-Man machine, police conducted an
unlawful search. However, counsel did not think such a challenge was “viable.”
CP at 14. Because the facts appeared undisputed and because the same facts
formed the basis of both Elwell’s motion to suppress and the State’s case in chief,
trial counsel suggested that the court could decide the motion to suppress after the
evidence was presented by the State in front of the jury. Counsel reasoned that if
the motion to suppress were granted, then the jury could be instructed to disregard
the relevant testimony.
The trial court granted Elwell permission to bring his motion to suppress pro
se, despite trial counsel’s doubts as to its merit, and agreed to decide the motion to
suppress after the State presented its evidence.
In addition to the motion to suppress, trial counsel informed the court that
Elwell was still interested in a new attorney and was still concerned about
5 State v. Elwell, No. 99546-0
counsel’s concussion. Counsel informed the court that he had recovered
completely, and the court noted that counsel was performing to the same standard
that the court had observed in prior cases. The court also reiterated that “an
attorney has an independent, ethical obligation to make arguments that he or she
thinks are supported by the law even if the client doesn’t, you know, see eye to eye
with them about that.” VRP (Oct. 29, 2018) at 30. The court did not appoint new
counsel.
Elwell filed his own written motion to suppress pursuant to CrR 3.6 and
requested substitute counsel to represent him on the motion. As planned, the court
did not consider the motion to suppress before the State began presenting its case
in chief. After one of the officers testified for the State, the jury was excused so
the officer could be questioned on issues relating to the motion to suppress. At
Elwell’s request, trial counsel asked questions on Elwell’s behalf, eliciting
testimony that the officer could not remember if he saw “the dolly beneath the
blanket,” that “Elwell never expressly gave . . . permission to look under the red
covering,” and that the officers could have secured the object while they sought a
warrant. VRP (Oct. 31, 2018) at 209-10. The jury then returned, and the State
resumed its case in chief.
After the State rested, the jury was excused and the parties argued the
motion to suppress. Elwell consented to trial counsel making the arguments on his
6 State v. Elwell, No. 99546-0
behalf. Counsel contended that by covering the item and “keeping it from public
view,” Elwell had exerted control over the object and brought it within the scope of
his right to privacy. Id. at 223. Counsel also pointed out that the officer had no
warrant or consent and that there were no exigent circumstances. The State
countered that both Elwell and the object with him were immediately recognizable
from the surveillance footage, so Elwell had no right to privacy in the object,
regardless of the plastic wrapping and the blanket covering it. The court denied the
motion to suppress, ruling that “[t]here was no right to privacy in the object being
rolled down the street, because its nature was so apparent.” Suppl. CP at 337.
After conferring with trial counsel, Elwell decided not to testify. The jury
then returned, and both sides made closing arguments. Elwell was convicted.
On November 16, trial counsel filed a motion to withdraw so that substitute
counsel could file a motion for a new trial based on ineffective assistance. Elwell
was assigned substitute counsel, but the motion for a new trial was denied, and the
court moved on to sentencing. The State recommended a standard range sentence
of 70 months, while Elwell requested a drug offender sentencing alternative
(DOSA). The court imposed a 70-month sentence.
Elwell appealed, represented by new counsel. Appellate counsel raised
issues concerning the right to counsel, the motion to suppress, and lesser-included
offense instructions. Elwell filed a statement of additional grounds for review
7 State v. Elwell, No. 99546-0
concerning the denial of a DOSA. See RAP 10.10. The Court of Appeals affirmed
in a unanimous, unpublished opinion. State v. Elwell, No. 79738-7-I (Feb. 1,
2021) (unpublished), https://www.courts.wa.gov/opinions/pdf/797387.pdf. We
granted Elwell’s petition for review.
ISSUES
A. Was it reversible error to deny Elwell’s motion to suppress?
B. Was Elwell deprived of the right to counsel when the trial court
allowed him to bring his own motion to suppress?
C. Was Elwell deprived of the right to conflict-free counsel?
D. Was trial counsel ineffective?
ANALYSIS
A. The motion to suppress should have been granted, but the error was harmless
The closest issue presented is whether the trial court properly denied
Elwell’s motion to suppress. The resolution of this issue depends on whether the
open view doctrine applies. The trial court and the Court of Appeals determined
that it did. Suppl. CP at 337; Elwell, No. 79738-7-I, slip op. at 4. The findings of
fact are unchallenged in this case, and our “[r]eview of conclusions of law entered
by the trial court at a suppression hearing is de novo.” State v. Carter, 151 Wn.2d
118, 125, 85 P.3d 887 (2004). We hold that the open view doctrine does not apply
and that Elwell’s motion to suppress should have been granted. Nevertheless,
8 State v. Elwell, No. 99546-0
reversal is not required because the State has met its burden of showing that the
error was harmless.
1. Background on the open view doctrine
The open view doctrine applies to both the Fourth Amendment to the United
States Constitution and article I, section 7 of the Washington Constitution. 1 Id. at
126-27. It provides that “[t]he mere observation of that which is there to be seen
does not necessarily constitute a search.” State v. Seagull, 95 Wn.2d 898, 901, 632
P.2d 44 (1981). This is because “[g]enerally, one does not have a privacy interest
in what is voluntarily exposed to the public.” Carter, 151 Wn.2d at 126.
Therefore,
[u]nder the open view doctrine, if an officer detects something by using one or more of [their] senses, while lawfully present at the vantage point where those senses are used, no search has occurred . . . [and the] officer has the same license to intrude as a reasonably respectful citizen.
1 Elwell asserts that the open view doctrine is “narrower . . . under the more protective article I, section 7 standard.” Pet. for Review at 10. He may be correct that the state and federal open view doctrines differ in some way. Compare Washington v. Chrisman, 455 U.S. 1, 6, 102 S. Ct. 812, 70 L. Ed. 2d 778 (1982) (“disagree[ing] with this [court’s] novel reading of the Fourth Amendment”), with State v. Chrisman, 100 Wn.2d 814, 819, 676 P.2d 419 (1984) (“look[ing] to state law to define the elements of ‘plain view’”). However, for an independent state law analysis, “it is not sufficient for parties to simply ‘mention our state constitution in their briefs’ and note that article I, section 7 is often more protective than the Fourth Amendment.” State v. Mayfield, 192 Wn.2d 871, 881, 895, 434 P.3d 58 (2019) (quoting State v. Rojo Armenta, 134 Wn.2d 1, 10 n.7, 948 P.2d 1280 (1997)). Elwell does not explain how the state open view doctrine differs from the federal open view doctrine as applied to this case. Therefore, we decline to engage in an independent state law analysis here. We do not foreclose the possibility of such an analysis in a future case with sufficient briefing.
9 State v. Elwell, No. 99546-0
State v. Cardenas, 146 Wn.2d 400, 408, 47 P.3d 127 (2002).
The open view doctrine is “visually similar, but legally distinct” from the
plain view doctrine. Seagull, 95 Wn.2d at 901. “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. Kennedy, 107 Wn.2d 1, 10, 726 P.2d 445 (1986)
(emphasis omitted) (citing Seagull, 95 Wn.2d at 901-02). Nevertheless, the open
view and plain view doctrines are similar because they both permit police to effect
a warrantless seizure if it is “immediately apparent” that the object police seize “is
associated with a crime.” State v. Morgan, 193 Wn.2d 365, 372, 440 P.3d 136
(2019). Here, the Court of Appeals correctly determined that “the open view
doctrine may apply, and the plain view doctrine does not,” because the officer
observed Elwell with the blanket-covered object on “a public street.” Elwell, No.
79738-7-I, slip op. at 5.
2. The Pac-Man machine was not in open view, so removing the blanket and the plastic wrapping was a search
The State’s position is that the open view doctrine applies, that the officer
did not intrude on a “private affair[ ]” by lifting the blanket and ripping off the
plastic wrapping, and, therefore, that “there was no search.” WASH. CONST. art. I,
§ 7; Suppl. Br. of Resp’t at 4. Elwell’s position is that there was a search because
it “was not immediately apparent” that the covered object “was the Pac-Man
10 State v. Elwell, No. 99546-0
machine until [the officer] unwrapped the red blanket, removed the plastic
wrapping, and moved several objects from the top of the box.” Pet. for Review at
10-11. Elwell is correct that in removing the Pac-Man machine’s covering, the
officer conducted an unlawful search. However, we take this opportunity to clarify
our precedent regarding the “immediately apparent” inquiry.
In order to seize an object pursuant to the open view doctrine, the object
must, of course, be in “view.” In other words, an officer must be able to detect the
object without “manipulat[ing]” it, solely “by using one or more of [their] senses.”
Morgan, 193 Wn.2d at 372 & n.6; Cardenas, 146 Wn.2d at 408. Here, the officer
used his senses to observe Elwell on a public sidewalk with a large, covered object.
The officer reasonably inferred that the object was the stolen Pac-Man
machine. This reasonable inference might have established probable cause to
support a search warrant or even to conduct a warrantless arrest. But we need not
(and expressly do not) decide whether the officer could have taken such actions
because he did not. Instead, the officer removed the blanket and the plastic
wrapping covering the object, confirming his suspicion that the covered object was
the Pac-Man machine. The Pac-Man machine was not in view (or otherwise
detectable through the senses) until its covering was removed. Therefore,
removing the covering was a search.
11 State v. Elwell, No. 99546-0
Probable cause, without more, does not provide the necessary “authority of
law” to conduct a warrantless search in accordance with article I, section 7. Yet
probable cause was all the officer in this case had; there was no warrant or consent,
and no exception to the warrant requirement applies. Thus, Elwell’s motion to
suppress should have been granted.
3. For the open view doctrine to apply, the evidentiary value of an object must be “immediately apparent,” but the identity of the object must be unambiguous
The seemingly simple analysis above has been complicated here by an
ambiguity in our precedent, which we now clarify. We recently held in Morgan
that the plain view doctrine (and therefore, by analogy, the open view doctrine)
permits a warrantless seizure where the police, in relevant part, “are immediately
able to realize the evidence they see is associated with criminal activity.” 193
Wn.2d at 371. We further explained that “[o]bjects are immediately apparent . . .
‘when, considering the surrounding circumstances, the police can reasonably
conclude’ that the subject evidence is associated with a crime. Certainty is not
necessary.” Id. at 372 (citation omitted) (quoting State v. Hudson, 124 Wn.2d 107,
118, 874 P.2d 160 (1994)).
The parties in this case have understandably focused on the question of
whether it was “immediately apparent” that the object Elwell had with him was the
Pac-Man machine before the officer removed the blanket and plastic wrapping.
12 State v. Elwell, No. 99546-0
But that is not the relevant inquiry in this case. For the open view doctrine to
apply, the evidentiary value of the object need not be certain, so long as it is
“immediately apparent.” By contrast, the identity of the object, as discussed
below, must be unambiguous. In this case, the identity of the object was
ambiguous before the officer removed its covering. Therefore, the open view
doctrine cannot apply.
The “immediately apparent” language we used in Morgan was correct and
fully consistent with precedent. See, e.g., State v. Hatchie, 161 Wn.2d 390, 395,
166 P.3d 698 (2007); State v. Kull, 155 Wn.2d 80, 85, 118 P.3d 307 (2005);
Hudson, 124 Wn.2d at 114. However, the correct application of that language may
have been misunderstood due to the unusual facts presented in Morgan. We
therefore take this opportunity to clarify it.
The object at issue in Morgan was “clothing in ‘several plastic shopping like
bags.’” 193 Wn.2d at 368. Although the bags were not transparent, the officer
“did not have to manipulate the bags to know what they contained,” and “[n]othing
in this record suggest[ed] any ambiguity; it [was] clear from context that the plastic
hospital bags contained the clothing hospital staff removed in treating Morgan.”
Id. at 372; cf. State v. Courcy, 48 Wn. App. 326, 327, 739 P.2d 98 (1987) (cocaine
in “a blue and black precisely folded paper ‘bindle’”). Thus, despite its opaque
covering, the identity of the object in Morgan was unambiguous.
13 State v. Elwell, No. 99546-0
However, for the plain view doctrine to apply, it was not sufficient for the
State to show that the object in the bag was unambiguously Morgan’s clothing
because a suspect’s clothing does not automatically have evidentiary value.
Instead, for the plain view doctrine to apply, we required a further showing that the
police were “aware of the evidentiary value of Morgan’s clothing.” Morgan, 193
Wn.2d at 372 (emphasis added). The State made such a showing because, in part,
the officers knew that Morgan’s clothing had “smelled like gasoline” before it was
put in the bag, and the crimes at issue included arson. Id. The gasoline smell did
not establish the clothing’s evidentiary value with “[c]ertainty,” but it did make the
clothing’s evidentiary value “immediately apparent.” Id.
Returning to Elwell’s case, it is undisputed that the Pac-Man machine was
not literally an “exposed object” because it was covered by an opaque blanket.
State v. Myers, 117 Wn.2d 332, 345, 815 P.2d 761 (1991). Moreover, it is clear
that the covered object’s identity was not unambiguous, as it was in Morgan.
Unlike the police in Morgan, the officer in this case did manipulate the object
before seizing it by removing the blanket and the plastic wrapping covering it.
This would not have been necessary if the object’s identity was unambiguous.
And although it was highly likely that the object was the Pac-Man machine, in fact,
the visible object was simply a large, generic, rectangular box covered by a
blanket. It could have contained anything or nothing.
14 State v. Elwell, No. 99546-0
In addition, the officer requested Elwell’s consent to remove the covering
multiple times before doing so himself without Elwell’s permission. These were
not the actions of “a reasonably respectful citizen” who is merely observing
something “voluntarily exposed to the public.” Cardenas, 146 Wn.2d at 408;
Carter, 151 Wn.2d at 126. Removing the blanket and the plastic wrapping to
reveal what was beneath it was a search.
Thus, for the open view doctrine to apply, there must be no ambiguity on the
basic question of the identity of the object in question. In other words, the officer
must be able to determine what the object is with certainty, without manipulating
the object and using only their senses. In addition, the object’s evidentiary value
must be “immediately apparent,” but that is a separate inquiry from the object’s
identity.
4. The denial of the motion to suppress was harmless error
Although the motion to suppress should have been granted, we nevertheless
affirm because the error was harmless. “To make this determination, we utilize the
‘overwhelming untainted evidence’ test. ‘Under this test, we consider the
untainted evidence admitted at trial to determine if it is so overwhelming that it
necessarily leads to a finding of guilt.’” State v. Thompson, 151 Wn.2d 793, 808,
92 P.3d 228 (2004) (emphasis and citation omitted) (quoting State v. Smith, 148
15 State v. Elwell, No. 99546-0
Wn.2d 122, 139, 59 P.3d 74 (2002)). The State has made the necessary showing
here.
As the Court of Appeals explained, “Even if the jury did not learn what was
underneath the covering,” the jury would still be able to consider the high-quality
“security camera footage depicting Elwell committing the charged crime.” Elwell,
No. 79738-7-I, slip op. at 9. The jury would also have been able to watch most of
the officer’s body cam video clearly depicting Elwell in the same clothes, with the
same facial hair, less than a mile from the burglary on the same day it occurred,
wheeling along a large object matching the size and shape of the stolen Pac-Man
machine. Ex. 6, at 0 min., 0 sec. to 1 min., 27 sec. “[A]ny reasonable trier of fact
would have reached the same result despite the error.” Thompson, 151 Wn.2d at
808.
Thus, we hold the denial of the motion to suppress was harmless error and
turn to Elwell’s claims regarding the right to assistance of counsel.
B. Elwell was not deprived of the right to counsel at a critical stage
The first of Elwell’s three right-to-counsel claims is that the trial court
“deprived Mr. Elwell of his right to representation by counsel when it required him
to proceed pro se on his motion to suppress.” 2 Pet. for Review at 13. As Elwell
2 Elwell cites both the state and federal constitutions but does not differentiate between them. Suppl. Br. of Pet’r at 4 (citing U.S. CONST. amends. VI, XIV; WASH. CONST. art. I, § 22). We therefore decline to engage in an independent analysis of state law.
16 State v. Elwell, No. 99546-0
correctly notes, “[l]eaving a person unrepresented at a critical stage requires
reversal without consideration of prejudice.” Suppl. Br. of Pet’r at 16 (citing
United States v. Cronic, 466 U.S. 648, 659, 104 S. Ct. 2039, 80 L. Ed. 2d 657
(1984); State v. Heddrick, 166 Wn.2d 898, 910, 215 P.3d 201 (2009)). However,
Elwell was never “unrepresented at a critical stage.”
Elwell’s claim is that he did not waive his right to counsel for the
suppression motion and that “[r]equiring a person to proceed pro se in order to
litigate an issue is ‘[a]n outright denial of the right to counsel.’” Id. at 15 (second
alteration in original) (quoting State v. Harell, 80 Wn. App. 802, 805, 911 P.2d
1034 (1996)). This claim assumes that (1) Elwell had a constitutional right to
counsel who would file the motion to suppress and (2) Elwell pursued his motion
to suppress without the assistance of counsel. The first assumption is not
supported by the law, and the second assumption is not supported by the record.
The right to counsel in a criminal case does not include the right to have
counsel raise every issue the defendant wants to raise. In an attorney-client
relationship, “[g]enerally, the client decides the goals of litigation and whether to
exercise some specific constitutional rights, and the attorney determines the
means.” State v. Cross, 156 Wn.2d 580, 606, 132 P.3d 80 (2006), abrogated on
other grounds by State v. Gregory, 192 Wn.2d 1, 427 P.3d 621 (2018). Therefore,
“[i]n a criminal case, the lawyer shall abide by the client’s decision, after
17 State v. Elwell, No. 99546-0
consultation with the lawyer, as to a plea to be entered, whether to waive jury trial
and whether the client will testify.” RPC 1.2(a). There is no dispute that Elwell
made each of those decisions himself.
However, when it comes to “details of strategy,” those matters “are
generally for counsel to decide, not the client.” Cross, 156 Wn.2d at 606. Thus, as
the trial court correctly ruled, it was up to trial counsel to decide whether to bring
the motion to suppress based on his professional judgment. Elwell’s disagreement
with trial counsel on the suppression motion did not automatically entitle him to a
new attorney.
Our precedent sets forth the correct analysis where a defendant requests
substitute counsel based on a disagreement about strategy. The request “must be
timely and stated unequivocally.” Id. at 607. In ruling on such a request, the trial
court must decide whether “the ‘relationship between lawyer and client completely
collapse[d].’” Id. at 606 (quoting In re Pers. Restraint of Stenson, 142 Wn.2d 710,
722, 16 P.3d 1 (2001)). When we review the trial court’s ruling, “we consider
‘(1) the extent of the conflict, (2) the adequacy of the [trial court’s] inquiry, and
(3) the timeliness of the motion.’” Id. at 607 (alteration in original) (quoting
Stenson, 142 Wn.2d at 724). “We generally review trial court decisions relating to
attorney/client differences for abuse of discretion.” Id.
18 State v. Elwell, No. 99546-0
Elwell does not go through this analysis. Instead, he relies on State v. Harell
for the proposition that “[r]equiring a person to proceed pro se in order to litigate
an issue is ‘[a]n outright denial of the right to counsel.’” Suppl. Br. of Pet’r at 15
(second alteration in original) (quoting Harell, 80 Wn. App. at 805). That is not
what Harell holds.
The defendant in Harell “sought to withdraw his pleas, alleging ineffective
assistance of counsel during the plea stage. The court granted a hearing on the
motion to withdraw. At the hearing defense counsel declined to assist Harell . . .
and defense counsel testified as a witness for the State.” 80 Wn. App. at 803.
Harell had no other counsel to assist him, and “the trial court denied Harell’s
motion to withdraw his guilty pleas.” Id. The Court of Appeals determined that
“Harell was denied his right to counsel at the hearing, and is entitled to a new
hearing.” Id. at 805.
There are clear legal and factual differences between the situation in Harell
and the situation here. Harell dealt with a decision to plead guilty, which
ultimately belongs to the client, not counsel. Harell also dealt with a claim of
ineffective assistance, in which the attorney’s interests are likely to be (and in that
case, actually were) adverse to the client’s. By contrast, Elwell’s case deals with a
motion to suppress, which is a matter of strategy to be decided by counsel, not the
client. A motion to suppress is not inherently likely to cause the attorney’s
19 State v. Elwell, No. 99546-0
interests to be adverse to the client’s, and there is no indication that such a conflict
actually occurred here.
This final point directly contradicts Elwell’s claim that the trial court “forced
Mr. Elwell to represent himself” on his motion to suppress. Suppl. Br. of Pet’r at
16. Unlike the attorney in Harell, who refused to assist his client and testified
against him, Elwell’s trial counsel actively assisted Elwell with his motion to
suppress. At Elwell’s request, counsel cross-examined the officer and argued for
suppression in court. Thus, the State properly characterizes the situation as one in
which Elwell “was permitted to raise an additional motion that his attorney
declined to raise,” and he did so with counsel’s assistance. Suppl. Br. of Resp’t at
11 (emphasis added).
The resulting arrangement, as the Court of Appeals correctly observed, was
“properly allowed” as a form of “hybrid representation.” Elwell, No. 79738-7-I,
slip op. at 15. Elwell argues that he “did not request ‘hybrid representation.’” Pet.
for Review at 15. However, he fails to show that the trial court erred in denying
the request he did make (“appoint counsel to represent Elwell on this motion”). CP
at 60. By nevertheless allowing hybrid representation on the motion to suppress,
the trial court gave Elwell a chance to bring the motion without requiring him to
waive his right to counsel for the entire trial.
20 State v. Elwell, No. 99546-0
In some ways, this hybrid representation arrangement was comparable to a
statement of additional grounds for review, which may be filed in the Court of
Appeals pursuant to RAP 10.10. In both situations, a criminal defendant keeps
their appointed counsel but also has the opportunity to “identify and discuss those
matters . . . the defendant believes have not been adequately addressed by the brief
filed by the defendant’s counsel.” RAP 10.10(a). For instance, in this case, Elwell
filed a statement of additional grounds challenging the trial court’s denial of a
DOSA. Statement of Additional Grounds for Review, State v. Elwell, No. 79738-
7-I (Wash. Ct. App. Jan. 23, 2020).
Elwell’s appellate counsel did not raise the DOSA issue in her briefs. Yet
Elwell does not contend that he was deprived of the right to counsel on appeal or
that he was entitled to new appellate counsel who would brief the DOSA issue for
him. It is not clear why the RAP 10.10 procedure was constitutionally permissible
on appeal, but hybrid representation was constitutionally impermissible at trial,
given that “[t]he right to counsel attaches at all critical stages of criminal
proceedings—including the first appeal—under article I, section 22” of the state
constitution. State v. Rafay, 167 Wn.2d 644, 652, 222 P.3d 86 (2009).
Thus, Elwell has not shown that he was deprived of his constitutional right
to counsel at a critical stage of the proceedings. We affirm the Court of Appeals
on this issue.
21 State v. Elwell, No. 99546-0
C. Elwell was not deprived of the right to conflict-free counsel
Elwell also contends that trial counsel’s “actions in actively advocating
against Mr. Elwell and undermining his arguments created an actual conflict that
left him ‘not represented.’” Pet. for Review at 17 (quoting State v. Chavez, 162
Wn. App. 431, 439-40, 257 P.3d 1114 (2011)). It is true that “[t]he right to the
effective assistance of counsel encompasses the right to representation ‘free from
conflicts of interest.’” Suppl. Br. of Pet’r at 5 (quoting Wood v. Georgia, 450 U.S.
261, 271, 101 S. Ct. 1097, 67 L. Ed. 2d 220 (1981)). But “[t]o establish a Sixth
Amendment violation based on a conflict of interest, ‘a defendant must
demonstrate that an actual conflict of interest adversely affected his lawyer’s
performance.’” State v. Kitt, 9 Wn. App. 2d 235, 243, 442 P.3d 1280 (2019)
(emphasis added) (quoting State v. Regan, 143 Wn. App. 419, 427, 177 P.3d 783
(2008)). As discussed above, “a conflict over strategy is not the same thing as a
conflict of interest.” Cross, 156 Wn.2d at 607.
A conflict over strategy can lead to an actual conflict of interest (and thus
require appointment of new counsel) if it causes a “complete collapse” of the
attorney-client relationship. Id. at 606. But Elwell does not claim that there was a
complete collapse here, nor could he, given that his trial counsel conducted
questioning and argument on the motion to suppress at Elwell’s request. Instead,
Elwell advocates for a bright line rule that a “lawyer abandons his client when he
22 State v. Elwell, No. 99546-0
refuses to make a potentially meritorious key motion that is consistent with defense
objectives and requested by the client.” Suppl. Br. of Pet’r at 8 (underlining
omitted).
We decline to adopt such a rule, as it would “impair the independence of
defense counsel” and eviscerate the “strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.” Strickland v.
Washington, 466 U.S. 668, 690, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
Therefore, as the Court of Appeals correctly recognized, trial counsel’s failure to
bring the suppression motion was, at most, ineffective assistance, not an actual
conflict of interest. Elwell, No. 79738-7-I, slip op. at 14 n.8. We affirm the Court
of Appeals on this issue.
D. Elwell did not receive ineffective assistance of counsel
Finally, Elwell contends that trial counsel was ineffective because “[i]t is not
a legitimate strategy or reasonable tactic to tell the court a motion is meritless.” 3
Suppl. Br. of Pet’r at 17. However, counsel expressed his doubts about the merits
of the motion to suppress in the context of ensuring that Elwell would be able to
raise it. To avoid this (without lying to the court), counsel would have been
required to file the motion to suppress even though he thought it was not viable.
3 Elwell also asserts that trial counsel was ineffective based on “the failure to move to suppress the body camera footage of the search.” Pet. for Review at 20. However, he does not explain why this was ineffective assistance, so we decline to consider it.
23 State v. Elwell, No. 99546-0
As discussed above, we decline to hold that counsel was required to bring
Elwell’s motion to suppress. Nevertheless, we agree with Elwell that trial counsel
should have been a more forceful advocate on his behalf. Elwell’s motion to
suppress was meritorious, and counsel’s suggestion that the court decide the
motion to suppress after the evidence was presented to the jury was particularly
questionable. Although the jury could have been instructed to disregard any
suppressed evidence, it is better practice to prevent such evidence from being
presented to the jury in the first place where possible, and there was no apparent
strategic reason for doing otherwise in this case.
However, even if counsel’s performance was “professionally unreasonable,”
and thus constitutionally deficient, Elwell cannot show prejudice, as he must for
this court to reverse. Strickland, 466 U.S. at 691. As discussed above, the trial
court’s error in denying the motion to suppress was harmless. Therefore, assuming
without deciding that counsel unreasonably failed to properly research and argue
the suppression motion on Elwell’s behalf, Elwell does not show that “there is a
reasonable probability that, absent the errors, the factfinder would have had a
reasonable doubt respecting guilt.” Id. at 695.
Thus, we affirm the Court of Appeals on this issue.
24 State v. Elwell, No. 99546-0
CONCLUSION
We hold that the open view doctrine does not apply, so Elwell’s motion to
suppress should have been granted. However, the error was harmless. In addition,
Elwell has not shown any deprivation of his right to counsel. We therefore affirm.
WE CONCUR:
25 State v. Elwell (Daniel E.)
No. 99546-0
MADSEN, J. (concurring)—I agree with the majority that the trial court erred by
denying the motion to suppress because the police officers here engaged in an unlawful,
warrantless search. However, I disagree with the majority’s attempt to extend the logic
of another of our recent cases, State v. Morgan, 193 Wn.2d 365, 440 P.3d 136 (2019), to
this case. 1 I believe that the Morgan court improperly applied the plain view exception.
Accordingly, I do not believe Morgan can be harmonized with this case because it fails to
protect the important constitutional rights at issue. I believe we should apply the plain
view and open view exceptions only narrowly to situations where the evidence at issue is
actually in plain or open view.
Article I, section 7 of the Washington Constitution provides that “[n]o person shall
be disturbed in his private affairs, or his home invaded, without authority of law.” Our
state constitution gives Washington residents greater protections than the Fourth
Amendment to the United States Constitution. State v. MacDicken, 179 Wn.2d 936, 940,
1 Although the open view and plain view doctrines apply in similar but legally distinct situations, they both permit police to perform a warrantless seizure if it is “immediately apparent” that the object seized “is associated with a crime.” Morgan, 193 Wn.2d at 372. The main difference is that for open view, the object is outside and knowingly exposed to the public. State v. Seagull, 95 Wn.2d 898, 902, 632 P.2d 44 (1981). Because Elwell was outside on a public street when the officers approached him, we apply the open view doctrine here. However, the “immediately apparent” reasoning applies to both exceptions. No. 99546-0 Madsen, J., concurring
319 P.3d 31 (2014); State v. Young, 123 Wn.2d 173, 179, 867 P.2d 593 (1994).
Generally, a police officer must obtain a warrant to perform a search unless it falls under
one of the narrow exceptions set forth by our court. State v. Hatchie, 161 Wn.2d 390,
395, 166 P.3d 698 (2007) (noting warrantless searches are per se unreasonable under
article 1, section 7 unless they fit under one of the “‘jealously and carefully drawn
exceptions’” (internal quotation marks omitted) (quoting State v. Hendrickson, 129
Wn.2d 61, 70, 917 P.2d 563 (1996))); State v. Murray, 84 Wn.2d 527, 533, 527 P.2d
1303 (1974) (“‘The exceptions are “jealously and carefully drawn.”’” (quoting Coolidge
v. New Hampshire, 403 U.S. 443, 454, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971) (plurality
portion))). The open view and plain view exceptions are two of these exceptions. For
either of these exceptions to apply, it must be immediately apparent to the seizing officer
based on the facts and circumstances that the evidence they are seeing is incriminating.
Morgan, 193 Wn.2d at 372.
In Morgan, a police officer entered the hospital room of the defendant. Id. at 368.
Before arriving at the defendant’s room, the officer was instructed to collect the
defendant’s clothes and interview the defendant. Id. While interviewing the defendant,
the officer saw an opaque plastic shopping bag on the counter and took control of the
bag. Id. At trial, the defendant unsuccessfully moved to suppress the contents of the
seized bag, which were his clothing. Id. at 369. On appeal, this court held the
warrantless seizure was permitted under the plain view doctrine because it was
“immediately apparent” to the officer that the bag could reasonably contain evidence
2 No. 99546-0 Madsen, J., concurring
associated with a crime. Id. at 372. The court concluded that based on the fact that the
supervising officer believed the defendant’s clothing had evidentiary value and instructed
the seizing officer to collect the clothing, and on the seizing officer’s observations, the
evidentiary value of the bag was immediately apparent. Id. Thus, the court concluded
that these circumstances were sufficient to satisfy the open view doctrine. Id.
However, the officer in Morgan did not see the evidence justifying a plain view
seizure, just as the officers here did not see the gaming console in this case. Id. at 378
(Madsen, J., dissenting). In Morgan, the officer was instructed to gather the defendant’s
clothing, but the bag containing the clothes was opaque and the officer could only
speculate that it contained the defendant’s clothing. Further, he had no evidence that the
clothing itself was actually incriminating evidence. Id. at 377. Similarly, the police in
this case surmised the gaming console, which they knew was stolen, was the item
covered by the blanket. Unlike Morgan, the majority here properly rejects application of
the plain view exception to the warrant requirement.
The plain view and open view exceptions are straightforward and apply only when
the object is actually in plain or open view. Our courts have rejected applying the plain
view exception when the officer did not have immediately apparent knowledge that there
was incriminating evidence before them. See, e.g., Murray, 84 Wn.2d at 534 (holding the
plain view exception did not apply when the officers tilted a television to read serial
numbers that would prove the television was illegally acquired).
3 No. 99546-0 Madsen, J., concurring
Unlike Morgan, where the majority determined the officer’s search was justified
based on the surrounding circumstances, Morgan, 193 Wn.2d at 372, the majority here
correctly requires the officer to have immediate, apparent knowledge that there was
incriminating evidence before them. The majority in Morgan applied the exception too
broadly.
The majority in this case attempts to distinguish the facts in this case from
Morgan, arguing that here the object’s identity was ambiguous and thus the Morgan rule
should not apply. Majority at 14 (“It could have contained anything or nothing.”).
However the facts here are not unlike Morgan. In both cases, the evidence at issue was
not easily discernible to the officer. The clothes in Morgan were covered by an opaque
bag, and the Pac-Man machine here was covered by a blanket. In both cases, the officer
could not immediately determine what the object was. Instead, the officers in both cases
speculated as to the identity and evidentiary significance of what was hidden from view.
Each of these cases demonstrate the danger of expanding these narrow exceptions into
situations where the officer cannot actually know the objects are incriminating but instead
uses context clues to justify the seizure. Allowing an officer to rely on context “clues”
risks expanding the exception well beyond its intended goal and fails to protect
constitutional rights.
I agree with the majority that the open view exception does not apply under the
facts of this case but that the failure to grant the motion to suppress was harmless error.
4 No. 99546-0 Madsen, J., concurring
But, I cannot agree with the majority’s attempt to harmonize this case with Morgan.
With these observations, I concur.
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