State v. Hearn

128 P.3d 139
CourtCourt of Appeals of Washington
DecidedFebruary 9, 2006
Docket23715-0-III
StatusPublished
Cited by42 cases

This text of 128 P.3d 139 (State v. Hearn) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hearn, 128 P.3d 139 (Wash. Ct. App. 2006).

Opinion

128 P.3d 139 (2006)

STATE of Washington, Respondent,
v.
Tami Jo HEARN, also known as Tami J. Raider, Appellant.

No. 23715-0-III.

Court of Appeals of Washington, Division Three.

February 9, 2006.

*140 Daniel H. Bigelow, Attorney at Law, Cathlamet, WA, for Appellant.

Kevin M. Korsmo, Attorney at Law, Spokane, WA, for Respondent.

SCHULTHEIS, J.

¶ 1 Tami Jo Hearn was stopped by police for traffic infractions on two separate occasions. On each occasion, she was arrested when police discovered she was driving with a suspended license. On each occasion, police discovered methamphetamine among her possessions in the vehicle in the search incident to arrest. She appeals two convictions for drug possession. First, she contends that the evidence obtained from the search of her vehicle was inadmissible because the statute upon which her arrest was based was declared unconstitutional in City of Redmond v. Moore, 151 Wash.2d 664, 91 P.3d 875 (2004). Second, she asserts that the trial court erred when it ordered that as a condition of her community placement she refrain from associating with known drug offenders. Third, she challenges the court's determination at sentencing that a vehicle was used in the commission of a felony, which resulted in a one-year suspension of her driver's license. RCW 46.20.285(4).

¶ 2 Because Ms. Hearn has not identified the statute under which her license was suspended and the record does not reflect the information, we cannot review her Moore claim. We conclude that the conditions of her community placement did not impermissibly interfere with her constitutional right of association. However, the court erred when determining that she used a motor vehicle in the commission of her crimes. Accordingly, we affirm in part, reverse in part, and remand.

FACTS

¶ 3 On September 28, 2003, Ms. Hearn was stopped by police at Division Street and Lyons Avenue in Spokane, Washington, for a defective rear license plate light. Department of Licensing records showed that her license was suspended in the third decree (DWLS3d). The officer also discovered that she had an active warrant for escape from community custody. Ms. Hearn was placed under arrest. The officer found a brown plastic spoon containing a white powdery substance in her purse while searching her van incident to her arrest. The substance tested positive for methamphetamine. A K-9 unit was dispatched to the scene. The dog reacted to a basket of damp clothing. The officer looked inside the pant leg of a damp pair of jeans and found a small ziplock bag that held a substance that he recognized as marijuana and a tied-up corner piece of a plastic bag that contained a white powder that field-tested positive for methamphetamine. Ms. Hearn was charged with possession of methamphetamine.

¶ 4 On December 23, 2003, Ms. Hearn was stopped for a traffic infraction on North Ritchey Road in Spokane County. The deputy discovered that Ms. Hearn was driving with her license suspended in the second degree (DWLS2d) and arrested her. In a search incident to her arrest, methamphetamine was found in her purse, which was located on the driver's side floorboard. The previously filed information was amended, charging Ms. Hearn with an additional count of methamphetamine possession, for a total of two counts.

¶ 5 Ms. Hearn entered into a drug court waiver and agreement on both counts. She failed to successfully meet the obligations, and her participation in drug court was terminated. The court entered a finding of guilt and proceeded immediately to sentencing. Defense counsel denied that there were any factual disputes with respect to either count. The court found that a vehicle was used in the commission of a felony on both counts and sentenced Ms. Hearn within the standard range. Defense counsel indicated that Ms. Hearn may have been unlawfully arrested in light of Moore, 151 Wash.2d 664, 91 P.3d 875. The trial court observed that with respect to her first arrest Ms. Hearn also had an active warrant, and while her second arrest related to DWLS2d, Moore only applied to DWLS3d. To the extent Ms. Hearn was making a motion to dismiss at that time, the court denied the motion on those grounds.

*141 DISCUSSION

A. Unlawful Arrest

¶ 6 On appeal, Ms. Hearn contends that evidence obtained in the search incident to her second arrest for DWLS2d was inadmissible because the statute upon which her arrest was based was declared unconstitutional in Moore. This matter involves a question of law that we review de novo. Moore, 151 Wash.2d at 668, 91 P.3d 875; State v. Hanson, 151 Wash.2d 783, 784, 91 P.3d 888 (2004).

¶ 7 Ms. Hearn's second arrest is based on a DWLS2d charge, but the Moore court did not examine the DWLS2d statutes. Ms. Hearn can make a claim under Moore only if she meets her burden of demonstrating from the record that her license was suspended pursuant to former RCW 46.20.289 (2002) and former RCW 46.20.324(1) (1965), the statutes declared unconstitutional in Moore. State v. Pulfrey, 154 Wash.2d 517, 529-30, 111 P.3d 1162 (2005). In Pulfrey, the Washington Supreme Court refused to entertain the defendant's argument under Moore where the record did not indicate whether his license was suspended under the unconstitutional statutes. Id.; see State v. Peerson, 62 Wash.App. 755, 777-78, 816 P.2d 43 (1991) (holding that arguments must be supported by the record); see also City of Redmond v. Bagby, 155 Wash.2d 59, 64-66, 117 P.3d 1126 (2005) (holding that due process protections are satisfied if a mandatory license suspension for DWLS2d is based on a criminal conviction under RCW 46.20.265 or.270).

¶ 8 Ms. Hearn merely argues that the second degree driving while suspended statute provides that one may be suspended in the second degree due to "`administrative action taken by the department under chapter 46.20 RCW.'" Appellant's Br. at 8 (quoting RCW 46.20.342(1)(b)(xvii)). But she does not claim that her license was suspended in this manner. Because Ms. Hearn has not shown that Moore is relevant, we cannot review her claim.

B. Community Placement

¶ 9 Ms. Hearn argues that the community placement restriction that she refrain from associating with known drug offenders is an unconstitutional prohibition. As an issue of constitutional magnitude, it may be raised for the first time on appeal. State v. Llamas-Villa, 67 Wash.App. 448, 454-55, 836 P.2d 239

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State Of Washington, V. Gerardo Elicier Monge
Court of Appeals of Washington, 2025
State Of Washington, V. Naomi Marie Elaster
Court of Appeals of Washington, 2025
Personal Restraint Petition of: Jeremy Lee Ritchie
Court of Appeals of Washington, 2024
State Of Washington, V. Danilo Distura
Court of Appeals of Washington, 2024
Personal Restraint Petition Of Sean Anthony Thompson
Court of Appeals of Washington, 2023
State Of Washington, V. Joseph Paz Alvarez
Court of Appeals of Washington, 2022
State of Washington v. Stephen Benton Harris, Jr.
Court of Appeals of Washington, 2020
State of Washington v. Zachary P. Bergstrom
Court of Appeals of Washington, 2020
State Of Washington v. Nathan Chavez
Court of Appeals of Washington, 2020
State Of Washington v. Kevin M. Lee Ii
Court of Appeals of Washington, 2020
State Of Washington, V, Travis C. Schuettke
Court of Appeals of Washington, 2020
State Of Washington v. Kyle Phillip Crumpton
Court of Appeals of Washington, 2020
State of Washington v. David Tlung Za Thang
Court of Appeals of Washington, 2019
State Of Washington v. Jose Rene Gomez
Court of Appeals of Washington, 2019
State of Washington v. Keandre Deshawn Brown
Court of Appeals of Washington, 2019
State Of Washington v. Kevin Lee Forler
Court of Appeals of Washington, 2019
State of Washington v. Peggy Colleen Knott
Court of Appeals of Washington, 2019

Cite This Page — Counsel Stack

Bluebook (online)
128 P.3d 139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hearn-washctapp-2006.