State of Washington v. Rico Odell Davis ( 2020 )

FILED
AUGUST 4, 2020
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. 36561-1-III
Respondent, )
)
v. )
)
RICO ODELL DAVIS, ) UNPUBLISHED OPINION
)
Appellant. )
KORSMO, J. — Rico Davis appeals from a conviction for possession of
methamphetamine, arguing that he was improperly subjected to a strip search. We affirm.
FACTS
After first lying about his identity, Davis was arrested on both a department of
corrections (DOC) warrant from a prior drug possession conviction and an arrest warrant
for burglary. At the jail, he was subjected to a strip search due to the DOC warrant.
Corrections officers observed and removed two plastic “baggies” from Davis’ buttocks.
They contained methamphetamine.
Spokane police had come in contact with him after a series of 911 calls reported
strangers entering an apartment at 3:30 a.m.; one call reported that the men had been “let
inside.” The two female occupants, however, who did not speak much English and called
No. 36561-1-III
State v. Davis
upon family members for help, wanted the two men removed. One man1 was arrested on
an outstanding warrant. The other man, Davis, identified himself as “Karl Davis” and
reported that he had a non-extraditable warrant outstanding. When officers reported that
his description and the birthdate he had given did not match those of Karl Davis, Rico
Davis became agitated. An officer detained Davis because he did “not want to get in a
fight” with him. The officer then patted Davis down and noted a wallet. When asked if
his correct name could be found there, Davis admitted his true identity. The wallet was
seized and he was subsequently arrested on the noted warrants.
Defense counsel filed a motion to suppress, arguing that Mr. Davis had been
wrongly detained at the apartment. After conducting a hearing, Judge Maryann Moreno
concluded that police were investigating the crime of trespass and properly detained Mr.
Davis after he provided a false name. The motion was denied.
Counsel then moved to suppress the methamphetamine, arguing that Mr. Davis
had been illegally searched at the jail. A second hearing was held before Judge Julie
McKay. Judge McKay concluded that (1) the detention was proper due to the false
identification, (2) a body cavity search did not occur, and (3) a strip search was properly
conducted at the jail due to the DOC warrant for the earlier controlled substance
conviction. The motion was denied.
1
He turned out to be the son of the older apartment occupant.
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A bench trial on stipulated facts was conducted before the Judge John Cooney.
Judge Cooney convicted the defendant as charged and imposed a standard range
sentence. Mr. Davis then timely appealed to this court.
A panel considered the case without hearing argument.
ANALYSIS
The appeal presents several issues related to the two suppression rulings, but we
condense the challenges into two. We first address the challenges to the apartment
detention. We then consider arguments related to the jail search.
Apartment Detention
Mr. Davis argues that the officer had no reason to detain him once they learned he
had been “let inside” and that there was no basis for patting him down. The first
argument is answered by the findings from the suppression hearings, while the second
contention is waived for failure to present it during the course of those two hearings.2
2
His pursuit of these arguments on appeal is curious since no evidence was
discovered during the trespass investigation. The discovery of a person’s identity is not a
basis for suppressing evidence uncovered following an arrest on an outstanding warrant.
State v. Rothenberger, 73 Wash. 2d 596, 440 P.2d 184 (1968). Washington excludes
evidence that is directly discovered as a result of police violation of art. I, § 7. Kennedy,
107 Wash. 2d at 9. Washington does not apply a “but for” test of causation that would
require the suppression of any and all evidence discovered subsequent to an illegality.
E.g., State v. Mayfield, 192 Wash. 2d 871, 874, 434 P.3d 58 (2019); State v. Mierz, 127
Wash. 2d 460, 474-475, 901 P.2d 286 (1995); State v. Bonds, 98 Wash. 2d 1, 10-14, 653 P.2d
1024 (1982); State v. Vangen, 72 Wash. 2d 548, 554-555, 433 P.2d 691 (1967).
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This court typically reviews findings entered following a CrR 3.6 hearing for
substantial evidence. State v. Hill, 123 Wash. 2d 641, 644, 870 P.2d 313 (1994). We
review de novo the conclusions derived from the factual findings. State v. Armenta, 134
Wash. 2d 1, 9, 948 P.2d 1280 (1997).3
Mr. Davis argues that the police had no basis for continuing an investigation or in
discovering his identity once he succeeded in entering the apartment. The record does
not support that argument.4 Washington applies the articulable suspicion standard of
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), to investigative stops
implicating the protections of article I, section 7 of our state constitution. State v.
Kennedy, 107 Wash. 2d 1, 4-6, 726 P.2d 445 (1986). When an officer can articulate the
basis for believing possible criminal activity is afoot, a brief detention to investigate is
permissible. Terry, 392 U.S. at 21. The test is whether the facts known to the officer
show “a substantial possibility that criminal conduct has occurred or is about to occur.”
Kennedy, 107 Wash. 2d at 6. “When the activity is consistent with criminal activity,
although also consistent with noncriminal activity, it may justify a brief detention.” Id.
These standards were satisfied here. The officers knew that there was “a
substantial possibility that criminal conduct has occurred.” Id. Three calls reported that
3
Davis also assigns error to related findings of fact, but makes no significant
effort to explain whether or not sufficient evidence supports them.
4
No finding of fact from either CrR 3.6 hearing indicates how the men entered the
apartment, let alone suggests that they were permitted or authorized to be there.
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strange men were trying to enter an apartment in the middle of the night. The apartment’s
occupants let the police in and pointed out the unwanted presence of Mr. Davis. That
evidence supported the trial court’s finding that the “officers were investigating whether
Mr. Davis had committed the crime of trespass.” Clerk’s Papers (CP) at 24. It was
reasonable for officers to determine the identity of the strange man in the apartment,
particularly after he gave them a false name.5 The trial court correctly denied the motion
to suppress.
Mr. Davis also argues that he was unlawfully patted down. He waived that
argument. The failure to raise an issue in the trial court normally precludes a party from
raising the issue on appeal. RAP 2.5(a); State v. Scott, 110 Wash. 2d 682, 685, 757 P.2d
492 (1988). One exception to that rule is that a claim of manifest constitutional error can
be asserted for the first time on appeal, if the record is adequate to address the issue.
State v. McFarland, 127 Wash. 2d 322, 333, 899 P.2d 1251 (1995).
Mr. Davis argues that the record is that the record is sufficient to consider this
issue, but it is not. No one asked the officers why a pat down was necessary and the
5
The officers also had probable cause to arrest Davis for obstructing a public
servant. RCW 9A.76.020. This stands as an independent reason to affirm the suppression
ruling. Even if there had been an illegal detention, the false statement provided a basis
independent of the initial detention to identify and arrest Davis. A crime committed
subsequent to allegedly illegal police actions is not the fruit of the illegality. State v.
Valentine, 132 Wash. 2d 1, 935 P.2d 1294 (1997); State v. Mierz, 127 Wash. 2d 460, 901 P.2d
286 (1995).
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court made no findings related to that topic. There was evidence that Mr. Davis was
“agitated” and that the officers feared having to fight with him. A properly noted hearing
would have provided the answers to these questions. The wallet also appears to have
been seized contemporaneously with the arrest on the outstanding warrants. Again, if a
hearing had been held, the court could have made findings to identify whether there was
any evidence seized, let alone seized illegally.
In addition to the inadequacy of the record, a second reason exists to decline
review of this argument. Mr. Davis twice brought CrR 3.6 motions to suppress evidence
without raising the current version of this claim. The decision not to present a third
theory of suppression likely was the result of conscious acknowledgement that the facts
of the encounter would not justify it. The issue is waived. State v. Mierz, 127 Wash. 2d
460, 468, 901 P.2d 286 (1995).
For all of the reasons noted above, the challenges to the suppression rulings are
without merit.
Jail Search
Mr. Davis challenges the strip search, claiming that it was performed improperly
and without authorization, and that the statute is unconstitutional. Although these
arguments do address evidence that was used at trial, they, too, are without merit.
Strip searches and body cavities searches are governed by RCW 10.79.060-170.
The primary distinction is whether a body cavity (stomach, rectum, or vagina) is
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involved. RCW 10.79.070(3). Body cavity searches involve touching or probing a body
cavity. RCW 10.79.070(2). A body cavity search can only be conducted pursuant to a
search warrant. RCW 10.79.080(1). Cavity searches must be conducted by trained
health care professionals. RCW 10.79.100(2). A strip search involves the removal or
rearrangement of clothing and the display of the genitals, buttocks, anus, female breasts,
or undergarments. RCW 10.79.070(1).
Strip searches can only occur when reasonable suspicion exists or when a person
has been arrested for specified categories of offenses. RCW 10.79.130. Among those
who may be searched is anyone who has been arrested for “an offense involving escape,
burglary, or the use of a deadly weapon; or an offense involving possession of a drug or
controlled substance.” RCW 10.79.130(2)(b), (c). Strip searches shall be conducted in
private locations. RCW 10.79.100(3).
Mr. Davis first argues that the search was an improper body cavity search and was
not conducted privately. The court’s factual findings, all supported by the testimony of a
corrections officer, are contrary to those assertions. The search was conducted in a
bathroom that was not visible to the public or the general booking area. The door to the
room remained open for security purposes. CP at 38. These findings establish that the
search was conducted in private in accordance with the requirements of the statute.
The baggies of methamphetamine were observed when Mr. Davis spread his
buttocks. The court expressly found, consistent with the testimony of the corrections
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officer, that the baggies were removed without probing the rectum. CP at 38. On the
basis of these findings, the trial court determined that this constituted a strip search, not a
body cavity search. CP at 38.
The ruling was correct. Removing an item protruding from the anus during a strip
search is not a body cavity search, even if the protruding item is touching a body cavity.
State v. Jones, 76 Wash. App. 592, 598, 887 P.2d 461 (1995). An officer does not touch or
probe the rectum when retrieving an item that touches the rectum. Id.
The trial court properly determined that Mr. Davis was not the subject of a body
cavity search.
He next argues that the search was conducted without statutory authorization. We
disagree. A strip search is authorized following an arrest for certain named offenses,
including “burglary” or “an offense involving possession of a drug or controlled
substance.” RCW 10.79.130(2)(b), (c). Mr. Davis was arrested due to both the burglary
warrant and the DOC warrant from a drug case in which he was on community
supervision. CP at 38. Because the statute treats these warrants differently, we, too, will
discuss each separately.
The trial court discounted the burglary warrant as a basis for the search, stating
that the facts underlying the warrant were not in the record. The court erred in doing so.
Nothing in the statute suggests factual inquiry into the nature of the offense is required.
Instead, the statute lists categories of offenses for which a strip search is authorized. The
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No. 36561-1-III
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statute authorizes a strip search when a burglary suspect is booked into the jail. The
search of Mr. Davis was authorized by the statute.
Anticipating this result, Mr. Davis argues that the categorical approach taken by
the legislature in RCW 10.79.130(2), which dictates that reasonable suspicion for a strip
search exists when a person is arrested for specific offenses, is unconstitutional. He
contends that the individualized suspicion must always be present to satisfy art. I, § 7 of
the Washington Constitution.
No published opinion from this court appears to have addressed this argument.
Jones is the only case that has even addressed a search expressly authorized under
subsection 130(2). 76 Wash. App. at 599. In all other instances, our court has addressed
searches authorized under subsection 130(1) or has not specified the subsection. See,
e.g., State v. Barron, 170 Wash. App. 742, 752-754, 285 P.3d 231 (2012) (arrest for
assault); State v. Harris, 66 Wash. App. 636, 643, 833 P.2d 402 (1992) (arrest on
unspecified warrants).
Both parties properly recognize State v. Audley, 77 Wash. App. 897, 902, 894 P.2d
1359 (1995), as the most authoritative discussion of the strip search statute. There, the
defendant was observed delivering cocaine he had been storing down the front of his
pants. Id. at 900. Division One of this court upheld the constitutionality of the statute
under art. I, § 7 and the Fourteenth Amendment, deciding that the state and federal
constitutions provided the same protections in this context. 77 Wash. App. at 903-905.
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Consistent with federal authority, Audley concluded that individualized suspicion was
necessary to perform a strip search at a jail. Id. The court recognized that 130(2) deemed
reasonable suspicion “automatically present” in the circumstances listed. Id. at 906.
Recognizing that federal courts have since retreated from this standard, Davis
argues that this court should continue with the individualized suspicion standard and use
it to declare 130(2) unconstitutional.6 Audley expressly recognized that the categories of
130(2) themselves provided individualized suspicion. 77 Wash. App. at 902, 908. It would
be a significant rewriting of Audley to now rule that it was internally inconsistent. He has
presented no compelling reason for doing so.7
Although Audley answers one of the challenges presented here, it does not address
the validity of the search based on the DOC warrant relied upon by the trial court. RCW
10.79.120 expressly states that the protections of the strip search statute do not extend to
individuals incarcerated “by order of a court” or those “held for post-conviction
6
Federal courts now permit strip searches of those destined for the general jail or
prison population without requiring individualized suspicion. Florence v. Board of
Chosen Freeholders of County of Burlington, 566 U.S. 318, 339-340, 132 S. Ct. 1510,
182 L. Ed. 2d 566 (2012); Bull v. City and County of San Francisco, 595 F.3d 964 (9th
Cir. 2010).
7
Before abandoning precedent, a court must find that an established rule is both
incorrect and harmful. In re Rights to Waters of Stranger Creek, 77 Wash. 2d 649, 466 P.2d
508 (1970). Mr. Davis has not made that effort here. The statute protects both individual
rights and the rights of those working and residing in correctional facilities. Audley, 77
Wash. App. at 908-909. There has been no showing that Audley wrongly construed either
the statute or the demands of art. I, § 7, or that its rule is harmful. We have no basis for
abandoning it.
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incarceration.” The DOC warrant involved a post-conviction matter, taking that arrest
outside of the directives of RCW 10.79.130.8
Mr. Davis also argues that no one can be strip searched without an arrest warrant,
a contention that goes to the heart of the DOC warrant issue. However, his analysis fails
because it focuses on the wrong population. A person detained post-conviction is not
situated the same as every other citizen, nor even situated the same as an arrestee. Davis
primarily relies upon Audley, a case dealing with arrestees. It stands for the proposition
that RCW 10.79.130’s reasonable suspicion standard for strip searches of arrestees
satisfies art. I, § 7. It does not stand for the proposition that incarcerated prisoners can
only be strip searched when reasonable suspicion exists.
A complete Gunwall9 analysis no longer is needed when determining whether art.
I, § 7 provides greater protection than the Fourth Amendment. State v. Mayfield, 192
Wash. 2d 871, 879, 434 P.3d 58 (2019). Instead, the parties (and reviewing court) may
simply consider the merits of the argument for extra protection. Id. In that regard,
Audley does not aid Mr. Davis. Not only does it not address his situation, it also holds
that the state and federal constitutions set forth the same protections for strip searches.
Now that the United States Supreme Court has confirmed that individualized suspicion is
8
Audley succinctly summarized the matter: RCW 10.79.130, et seq., applies only
to arrestees and does not apply to those committed to jail (presumably to serve sentences)
by the court. Audley, 77 Wash. App. at 901 n.1.
9
State v. Gunwall, 106 Wash. 2d 54, 720 P.2d 808 (1986).
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not needed to search prisoners, the Audley standard undercuts Mr. Davis’s argument.
Florence v. Board of Chosen Freeholders of the County of Burlington, 566 U.S. 318,
339-340, 132 S. Ct. 1510, 182 L. Ed. 2d 566 (2012).
More critically, the pre-Gunwall case law does not support his argument.
Significant here is State v. Hartzog, 96 Wash. 2d 383, 635 P.2d 694 (1981). There the court
upheld a Walla Walla Superior Court policy of having all penitentiary prisoners subjected
to strip and body cavity searches before appearing in superior court for any proceedings.
Id. at 391-397. This is a significant indication that Washington, historically, has not
provided extra protection to prisoners in this arena. Similarly, commentators also
recognize that Washington prisoner searches are governed by statute and regulation.
Charles W. Johnson & Debra L. Stephens, Survey of Washington Search and Seizure
Law: 2019 Update, 42 Seattle U. L. Rev. 1277, 1447 (2019).
The need of correctional institutions to protect against the introduction of
contraband is significant. This case provides a clear example. If Mr. Davis had not been
carefully searched, two packages of methamphetamine would have made it into the jail.
In the absence of any indication that Washington grants prisoners greater protection
against strip searches than the federal constitution, we decline to do so here.
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The conviction is affirmed.
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.
_________________________________
Korsmo, A.C.J.
WE CONCUR:
_________________________________
Lawrence-Berrey, J.
_________________________________
Melnick, J.
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