State Of Washington, V David Craig Dickjose ( 2015 )

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CDURT OF APPEALS
DIVISIW4 11
2015 AUG 7 1 AM 9: 08
STATE OF WASHINGTON,,
IN THE COURT OF APPEALS OF THE STATE 6* F WASItNGTON
DIVISION II
STATE OF WASHINGTON,
No. 43659 -1 - II
Respondent,
v.
DAVID. CRAIG DICKJOSE, UNPUBLISHED OPINION
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SUTTON, J. — David Dickjose appeals from the trial court' s ruling that his inculpatory post-
arrest statements were admissible at trial. He argues that the trial court erred in ruling that his
statements were sufficiently attenuated from his unlawful arrest. We hold that his arrest was
unlawful and, because the State intentionally abandoned its attenuation doctrine argument, his
post -arrest statements are inadmissible. We remand for further proceedings consistent with this
opinion.
FACTS
I. SEARCH WARRANT EXECUTION
This case has already been the subject of one appeal.' In December 2007, Lakewood
Officer Sean Conlon obtained a search warrant to search Dickjose' s home in connection with his
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investigation of Dickjose for unlawful possession and delivery of methamphetamine. On
State v. Dickjose, noted at 160 Wn..App. 1011, 2011 WL 1005552.
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Officers had conducted three different controlled buys involving Dickjose. The parties do not
dispute facts relating to these controlled buys.
No. 43659 -1 - II
December 13, at about 7: 00 AM, police . officers executed the search warrant. The warrant
authorized entry and search of:
The residence: 18111 41st AV E, Tacoma, WA 98446. 18111 41st AV E
is listed as a two acre parcel. The residence appears to be a blue double wide
manufactured home. There are also two detached garages, One four car garage and
one appears to be an RV/ shop type garage.
All outbuildings, trailers and vehicles on the property.
The person: A W/M known as David C. Dickjose, 05- 26- 67.
Clerk' s Papers ( CP) at 19. The search warrant did not contain authorization to arrest Dickjose.
Conlon first contacted Dickjose inside the home about 10 minutes after officers entered the
home. Conlon read Dickjose his Miranda' rights and Dickjose waived those rights. About a half
hour later, officers found methamphetamine in Dickj ose' s home and in his vehicle on the property.
Conlon then spoke with Dickjose a second time. Dickjose denied knowing anything about the
methamphetamine. Conlon told Dickjose that he was under arrest for delivery of methampheta-
mine and that Conlon had probable cause to arrest him for that offense; Dickjose denied having
delivered methamphetamine.
Within the hour after the officer' s initial entry into Dickjose' s home, Conlon spoke to
Dickjose a third time while Dickjose was still at home, in handcuffs, and under arrest. Conlon told
Dickjose he believed he was " a fairly large methamphetamine dealer" based on the amount of
methamphetamine recovered and " gave him an opportunity to help himself out and to order
narcotics" from his dealer in exchange for not booking him into jail that night. Verbatim Report
3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).
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of Proceedings ( VRP) ( May 11, 2012) at 21. Dickjose agreed and " said that he could help himself
out" by ordering a pound of methamphetamine. VRP at 21.
Conlon then took Dickjose to the police station around 10: 00 or 11: 00 AM. There, the two
further discussed Dickjose' s drug dealing activities and arranged to purchase a pound of
methamphetamine from Dickjose' s supplier. Dickjose admitted to dealing methamphetamine at
about half a pound at a time and that his supplier was a " large Hispanic male." VRP at 23. At the
agreed upon location, Dickjose identified his supplier. Conlon did not book Dickjose into jail that
night based on their agreement.
II. PROCEDURE
The State charged Dickj ose with three counts of unlawful delivery of a controlled substance
methamphetamine) and one count of unlawful possession of a controlled substance with intent to
deliver (methamphetamine). Dickj ose moved to suppress the physical evidence found in his home.
The trial court denied his motion. We granted Dickjose' s request for interlocutory discretionary
review and reversed the trial court' s denial of the motion to suppress, holding that the affidavit
supporting the search warrant did not contain sufficient facts to establish a " nexus" between the
place to be searched, Dickjose' s home, and evidence of the crimes for which Dickjose was charged
with committing. State v. Dickjose, 2011 WL 1005552, at * 7.
On remand, the trial court granted Dickjose' s motion to suppress the evidence found in
Dickjose' s vehicle because there was an insufficient nexus between the crimes being investigated
and the vehicles on the property. Dickjose also moved to suppress his post -arrest statements,
arguing that his arrest was unlawful because we had held the search warrant invalid as to his home.
The trial court ruled that Dickj ose' s arrest was unlawful, but that his statements made at the police
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station were sufficiently attenuated from the illegal entry into his home and unlawful arrest and
therefore admissible. The trial court' s factual findings did not mention the inculpatory statements
Dickjose made at home.
Dickjose sought and we granted discretionary review of the trial court' s denial of his
motion to suppress his post -arrest statements. In its cross -appellate brief, the State expressly
abandons its argument, made below, that Dickjose' s statements are admissible under the
attenuation doctrine.
ANALYSIS
1. RECORD SUFFICIENT FOR REVIEW
The State first argues that the record is incomplete, preventing review, because it contains
only one of two days of testimony on the suppression hearing and does not contain a transcript of
the trial court' s oral ruling on the motion to suppress.' These omissions do not preclude our
ItaIrlWAV
The party claiming error holds the burden to provide an adequate record for our review.
State v. Sisouvanh, 175 Wash. 2d 607, 619, 290 P.3d 942 ( 2012). A responding party who believes
the record is inadequate may supplement the record and request the appellant pay for that cost.
RAP 9. 2( c). A respondent who claims that review must be denied for an incomplete record must
explain the significance of the missing piece of record. Favors v. Matzke, 53 Wash. App. 789, 794,
770 P.2d 686 ( 1989), review denied, 113 Wash. 2d 1033. Here, the State did not move to supplement
The State argues that the commissioner improvidently granted review. But the State did not file
a motion to modify the commissioner' sruling granting review under RAP 17. 7. Thus, the
commissioner' s ruling granting discretionary review is final. Hough v. Ballard, 108 Wash. App.
272, 277, 31 P.3d 6 ( 2001).
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No. 43659 -1 - II
the record and does not explain why Dickjose' s failure to provide the second day of testimony
prevents adequate review. We conclude that the record is sufficient for our review. Thus, the
State' s argument fails.
II. ADMISSIBILITY OF DICKJOSE' S INCULPATORY STATEMENTS
A. Standard of Review
We review a trial court' s ruling on a motion to suppress evidence to determine whether
substantial evidence supports the trial court' s findings of fact and whether the findings of fact
support the trial court' s conclusions of law. State v. Russell, 180 Wash. 2d 860, 866, 330 P.3d 151
2014). We review conclusions of law de novo to determine if they are supported by the findings
of fact. Russell, 180 Wash. 2d at 867. Substantial evidence is evidence that is sufficient "`` to persuade
a fair- minded person of the truth of the stated premise."' Russell, 180 Wash. 2d at 866- 67 ( quoting
State v. Garvin, 166 Wash. 2d 242, 249, 207 P. 3rd 1266 ( 2009)). Unchallenged findings of fact are
verities on appeal. State v. Homan, 181 Wash. 2d 102, 106, 330 P.3d 182 ( 2014). We review a
conclusion of law that is mislabeled a finding of fact as a conclusion of law. State v. Green, .
177 Wash. App. 332, 341 n.7, 312 P.3d 669 ( 2013).
The trial court ruled that because the search warrant was invalid to enter Dickjose' s home
under our previous holding in Dickjose, the officers lacked authority to arrest him in his home as
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No. 43659 -1 - II
well.5 The trial court mischaracterized this decision as a finding of fact because the determination
of whether an encounter between police and a defendant constitutes .a constitutional violation is. a
question of law that we review de novo. State v. Budd, 186 Wash. App. 184, 347 P.3d 49 ( 2015).
B. Dickjose' s Unlawful Arrest
Dickjose argues that the trial court properly decided that his arrest was unlawful because it
cannot be " untethered" from the unlawful entry into his home pursuant to the search warrant.
Br. of Appellant at 8. We agree.
The Fourth Amendment protects against unreasonable searches and seizures.
U. S. CONST. amend. IV. Our state constitution provides, " No person shall be disturbed in his
private affairs, or his home invaded, without authority of law." WASH. CONST. art. I, § 7. The
sanctity of the home " is perhaps most deserving of constitutional protection against police
intrusion" under both the Washington Constitution and its federal counterpart. State v. Hatchie,
161 Wash. 2d 390, 39.7, 166 P.3d 698 ( 2007). An arrest is unquestionably a seizure of the person
arrested. Hatchie, 161 Wash. 2d at 395. To lawfully arrest a person in his or her home absent exigent
circumstances, under federal and Washington State law, a police officer must have ( 1) a warrant
for a suspect' s arrest supported by probable cause and ( 2) reason to believe the suspect is inside
5 In its conclusions of law, the trial court stated that ( 1) Dickjose had received his Miranda warning
at home " before making his initial exculpatory statements to Officer Conlon while at his house,"
2) Dickjose was removed to the police station where Conlon promised to not book him into jail
that night if he would make statements about his involvement in drug dealing and identify his
supplier; and ( 3) Dickjose then confessed. CP at 60- 61. The trial court then concluded that "[ t] he
State ha[ d] met its burden to show that [ Dickjose' s] subsequent statement was sufficiently
attenuated from the illegal entry into his home, and that the officer' s promise not to take him to
jail was significantly intervening to dissipate any taint of the entry into the house. The statements
Dickjose] made at the police station are admissible at trial." CP at 61.
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the home. Hatchie, 161 Wash. 2d at 395- 96 ( citing Payton v. New York, 445 U.S. 573,
603, 100 S. Ct. 1371, 63 L. Ed. 2d 639 ( 1980)).
The State argues that Dickjose was lawfully arrested because the search warrant allowed
the officers to search for Dickjose' s person and once they were in the house they could arrest him
based on probable cause that he had committed a crime. This argument vitiates the long-standing
rule that, absent exigent circumstances, a person may be arrested in his or her home only with an
arrest warrant supported by probable cause. State v. Hoffman, 116 Wash. 2d 51, 101, 804 P.2d 577
1991). An arrest warrant provides a police officer with limited authority in,regard to a person' s
home: They may enter only to seize the person and must immediately leave. Hatchie, 161 Wash. 2d
at 400.
The State' s argument greatly minimizes the basis of this rule — the sanctity of the home —
and attempts to fill the gap between a search warrant, which we held was invalid to enter Dickj ose' s
home, and his arrest. Hatchie, 161 Wash. 2d at 397. Because the search warrant was unsupported
by a sufficient nexus between Dickjose' s home and the evidence related to unlawful delivery or
possession by Dickjose, the State lacked authority to enter Dickjose' s home at all. Furthermore,
Conlon arrested Dickjose only after the officers recovered the methamphetamine, which has now
been suppressed under our holding that the warrant was invalid as to Dickjose' s home. The
officers gained entry into Dickjose' s home only through the invalid search warrant. Thus, the trial
court correctly concluded that Dickjose' s arrest was unlawful.
We hold that because the officers gained entry into Dickjose' s house only through an
invalid search warrant, Dickjose' s arrest in his home was unlawful. We further hold that because
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the State intentionally abandoned. its attenuation doctrine argument, Dickjose' s post -arrest
statements are inadmissible. We remand for further proceedings consistent with this opinion.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,
it is so ordered.
Y
SUTTON, J.
We concur:
J ) HANSON, C. J.
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BJOR SEN, .... J.— --
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