State of Washington v. Wendell Lee Muse ( 2017 )

FILED
JUNE 29, 2017
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. 34077-5-111
Respondent, )
)
v. )
)
WENDELL LEE MUSE, ) UNPUBLISHED OPINION
)
Appellant. )
FEARING, C.J. -Wendell Muse challenges his conviction for possession of
methamphetamine on the grounds of an unlawful search, seizure, and arrest. We reject
his contentions and affirm his conviction.
FACTS
On August 24, 2015, during the dusk of 8:08 p.m., Pasco Police Detective Chad
Pettijohn and Officer John D' Aquila spoke with one another along Clark Street in a busy
downtown area with significant foot traffic. Detective Pettijohn had recently investigated
several homicides with hand guns in Pasco's downtown. Pettijohn had responded to calls
No. 34077-5-III
State v. Muse
in the downtown area after someone walking, riding a bike, or driving a car had shot
someone on the street.
Police officers Chad Pettijohn and John D' Aqulia saw Wendell Muse bicycling in
the middle of Clark Street. When Muse turned south onto 5th Street, Detective Pettijohn
entered his patrol car and activated his lights to stop Muse for a bicycle infraction.
Wendell Muse was slow to stop. Based on Detective Chad Pettijohn's experience,
Muse's apprehension to stop concerned Pettijohn that Muse might flee. Detective
Pettijohn instructed Muse to keep his hands on the bike's handlebars. Muse disobeyed
Pettijohn's direction. Muse removed his right hand from the handle bar and reached into
his pocket. Muse's short pockets bulged, and Pettijohn saw Muse clasp small items in his
hands. Pettijohn again charged Muse to place his hands on the handlebars. As Pettijohn
approached Muse from behind, Muse moved his right hand. Muse's body screened
Pettijohn's view of the location where Muse moved his hand, but Pettijohn surmised
Muse reached toward his waistband and worried that Muse accessed a weapon. Pettijohn
repeated his request a third time to no avail.
Officer John D' Aquila heard Pettijohn repeatedly ordering Muse to keep his hands
on the bicycle. D' Aqulia saw Muse remove his hands from the bike's handlebars and
reach his hand toward his waistband.
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Pasco Detective Chad Pettijohn grabbed Wendell Muse. Muse tensed and tugged
from Detective Pettijohn. Muse's reaction increased Pettijohn's concern that Muse might
harm Pettijohn or someone else. Officer John D' Aquila shared the concern.
Detective Chad Pettijohn secured Wendell Muse's hands behind his back and
frisked his outer clothing for a weapon. Pettijohn did not feel any weapon, but touched a
methamphetamine pipe in the pocket of Muse's shorts. Detective Pettijohn later testified
that "[t]he instant I felt it, I knew exactly what it was because I've been a police officer
over ten years. There was no question what it was." Report of Proceedings (RP) (Oct.
20, 2015) at 9.
Pasco Detective Chad Pettijohn arrested Wendell Muse for unlawful possession of
drug paraphernalia. Incident to the arrest, Detective Pettijohn searched Muse's shorts and
backpack. In addition to seizing the pipe, Pettijohn found three baggies of
methamphetamine and a small digital scale to weigh items in grams or ounces. Burn
marks on the bowl of the pipe captured white residue, which Pettijohn recognized as
methamphetamine.
PROCEDURE
The State of Washington charged Wendell Muse with unlawful possession of a
controlled substance, methamphetamine. Pursuant to CrR 3 .6, Muse moved to suppress
evidence of the drug that Detective Chad Pettijohn confiscated from a frisk of Muse's
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State v. Muse
person. Muse argued that Pettijohn lacked cause to detain him and to frisk him. The trial
court denied Muse's motion.
A jury trial proceeded. During Detective Chad Pettijohn's direct examination, the
State asked Detective Pettijohn whether Wendell Muse uttered statements to him
regarding the items found on Muse's person. The trial court noticed that the case jacket
lacked any notation of the holding of a CrR 3.5 hearing. The court conducted a side bar
to inquire whether defense counsel filed a CrR 3.5 motion to suppress any statements
made by Muse to Pettijohn. The State responded that Muse and defense counsel
stipulated to the admission of Muse's statements to Pettijohn. Defense counsel informed
the court that Muse now wished to withdraw his stipulation. The trial court verified with
defense counsel that he received the necessary authority from Muse to stipulate that any
statements Muse made to Pettijohn were made freely and voluntarily after being advised
of his Miranda rights. Defense counsel answered in the affirmative. The court ruled that
Pettijohn could testify regarding what Muse told him. Over the objection of Muse,
Pettijohn testified that Muse told him:
[T]hat the meth pipe-in reference to the meth pipe, he knew it
was there and he on occasion smoked methamphetamine and had done
so a week prior. He also told me he had no knowledge that the package
was in his wallet or that the two packages were inside his backpack.
RP (Dec. 16, 2015) at 17.
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The jury found Wen dell Muse guilty of unlawful possession of methamphetamine.
The trial court sentenced Muse to time served and twelve months of community custody.
LAW AND ANALYSIS
Frisk of Muse
On appeal, Wendell Muse contends that Detective Chad Pettijohn unlawfully
frisked him because Pettijohn lacked a reasonable basis to conclude that he might be
armed and dangerous. Accordingly, Muse argues that the methamphetamine removed
from his clothing must be suppressed as fruit of the poisonous tree. Muse does not argue
that, once Detective Pettijohn felt an object other than a weapon, Pettijohn could not
confiscate the pipe, drugs, and scale. The State validates the frisk because specific and
articulable facts justified Pettijohn's fear that Muse possessed weapons. We agree with
the State.
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 oflaw. State v. Cole, 122
Wn. App. 319, 322-23, 93 P.3d 209 (2004). This court reviews de novo whether a
protective frisk was justified under the circumstances. State v. Ibrahim, 164 Wn. App.
503, 508, 269 P.3d 292 (2011).
As a general rule, warrantless searches and seizures are per se unreasonable, in
violation of the Fourth Amendment and article I, section 7 of the Washington State
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Constitution. State v. Duncan, 146 Wn.2d 166, 171, 43 P.3d 513 (2002). Washington
affords five jealously and carefully drawn exceptions to the warrant requirement, which
include exigent circumstances, searches incident to a valid arrest, inventory searches,
plain view searches, and Terry investigative stops. State v. Garvin, 166 Wn.2d 242, 249,
207 P.3d 1266 (2009); Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889(1968). This case involves a Terry investigative stop.
A Terry stop is authorized if police have a reasonable suspicion of criminal
activity. State v. Ibrahim, 164 Wn. App. at 508 (2011). But a frisk for weapons requires
something more. State v. Ibrahim, 164 Wn. App. at 508. The officer must reasonably
believe his safety or that of others is endangered. State v. Garvin, 166 Wn.2d at 250(2009). For a permissible Terry frisk, the State must show that ( 1) the initial stop is
legitimate, (2) a reasonable safety concern exists to justify the protective frisk for
weapons, and (3) the scope of the frisk is limited to the protective purposes. State v.
Duncan, 146 Wn.2d at 172 (2002). In this context, courts shy from substituting their
judgment for that of police officers in the field. State v. Collins, 121 Wn.2d 168, 173,
847 P.2d 919 (1993); State v. Belieu, 112 Wn.2d 587, 601-02, 773 P.2d 46 (1989). A
founded suspicion and a basis from which the court can determine that the frisk was not
arbitrary or harassing suffices. State v. Collins, 121 Wn.2d at 173. An officer's right to
search is not retrospectively invalidated when the suspect's pocket contains contraband
instead of a weapon. State v. Harper, 33 Wn. App. 507,511,655 P.2d 1199 (1982).
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Wendell Muse's challenge to the seizure rests on the second prong of the Terry
frisk test. Muse argues that Detective Chad Pettijohn lacked reasonable concern that he
bore arms. Muse relies on State v. Xiong, 164 Wn.2d 506, 191 P.3d 1278 (2008). Muse
correctly recites the rule followed in Xiong, but his application of his prosecution's facts
to the rule miscarries. In Xiong, the court wrote:
The scope of the frisk, however, must be limited to protective
purposes. If an officer cannot point to specific articulable facts that
create an 'objectively' reasonable belief that a suspect is armed and
'presently' dangerous, then no further intrusion is justified.
State v. Xiong, 164 Wn.2d at 514. The Supreme Court concluded that specific facts
failed to support a reasonable belief that the defendant was armed and presently
dangerous. Nothing in the record supported the police officers' fear for their safety. The
defendant cooperated with police, made no effort to flee, and made no moves to suggest
he might reach for his pants pocket.
In our appeal, Detective Chad Pettijohn stopped Wendell Muse for riding his
bicycle down the middle of a busy, downtown street. Pettijohn then lacked cause to frisk
Muse. Nevertheless, against Detective Pettijohn's repeated requests, Muse continued to
remove his hand from the bike's handlebars and reach toward his waistband or pocket.
Muse hid his movements by turning his body from Pettijohn. Pettijohn legitimately
experienced fear that Muse might harm him or someone else. Officer D' Aquila suffered
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a similar concern. Pettijohn limited the frisk to the outside of Muse's clothing, where he
might find weapons.
Wendell Muse's Statement to Detective Pettijohn
Wendell Muse next asserts that his statements to Detective Chad Pettijohn must be
suppressed because they followed an unconstitutional search and seizure. Muse
summarily attaches this assignment of error to his suppression argument on the basis that
the Terry frisk was unlawful. Nowhere in his brief, does Muse identify which statements
he believes should have been suppressed. Muse also does not address the stipulation
made at trial or the failure to file a CrR 3.5 motion to suppress the statements. Anyway,
we previously upheld the constitutional validity of the search.
Muse's Arrest
For the first time on appeal, Wendell Muse challenges the constitutional propriety
of his arrest. He maintains that Detective Chad Pettijohn arrested him without the
requisite probable cause because possession of drug paraphernalia is not a crime. He
contends he preserved this assignment of error by his trial court motion to suppress the
fruits of the search of his person. In the alternative, he argues this issue may be raised for
the first time on review as a manifest error affecting a constitutional right under RAP
2.5(a). The State disagrees with both alternate contentions.
We need not resolve whether Wendell Muse may challenge his arrest on appeal,
because we may dispose of the contention easily on the merits. Contrary to Muse's
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claims, unlawful possession of drug paraphernalia is a crime under the City of Pasco's
municipal code. Pasco Municipal Code (PMC) 9.38.030(1) declares it to be unlawful:
To use, or to possess with the intent to use, drug paraphernalia or
to plant, propagate, cultivate, grow, harvest, manufacture, compound,
convert, produce, process, prepare, test, analyze, pack, repack, store,
contain, conceal, inject, ingest, inhale or otherwise induce into the
human body a controlled substance, the possession of which controlled
substance is in violation ofRCW 69.50.
Muse does not resist the application of PMC 9.38.030.
Ineffective Assistance of Counsel
Wendell Muse contends that, if this court concludes that his challenge to his arrest
was not preserved and cannot be raised as manifest constitutional error, he was denied
effective assistance of counsel. We reject this argument since PMC 9.38.030 permitted
an arrest for possession of drug paraphernalia. Therefore, counsel's performance either
was not deficient or Muse suffered no prejudice.
A claim of ineffective assistance of counsel requires a showing that ( 1) counsel's
performance was deficient, and (2) the deficient performance prejudiced the defendant.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984);
State v. Grier, 171 Wn.2d 17, 32-33, 246 P.3d 1260 (2011); State v. Hamilton, 179 Wn.
App. 870, 879, 320 P.3d 142 (2014). If one prong of the test fails, we need not address
the remaining prong. State v. Hendrickson, 129 Wn.2d 61, 78,917 P.2d 563 (1996).
This is a mixed question of law and fact, reviewed de novo. Strickland v. Washington,
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466 U.S. at 698.
For the deficiency prong, this court gives great deference to trial counsel's
performance and begins the analysis with a strong presumption that counsel was
effective. State v. West, 185 Wn. App. 625, 638, 344 P.3d 1233 (2015). Trial strategy
and tactics cannot form the basis of a finding of deficient performance. State v. Johnston,
143 Wn. App. 1, 16, 177 P.3d 1127 (2007). Deficient performance is performance that
fell below an objective standard of reasonableness based on consideration of all the
circumstances. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). The
appellant bears the burden to prove ineffective assistance of counsel. State v. McFarland,
127 Wn.2d at 335. We cannot fault trial counsel for failing to seek to quash an arrest
when the law validated the arrest.
Under Strickland, for the prejudice prong, the defendant must show a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome. Strickland v. Washington, 466 U.S. at 669.
Because the trial court would likely have sustained the arrest, Wendell Muse establishes
no prejudice.
CONCLUSION
We affirm Wendell Muse's conviction for possession of a controlled substance,
methamphetamine.
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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:
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