State of Washington v. Daniel Herbert Dunbar ( 2019 )

FILED
JANUARY 8, 2019
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. 35351-6-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
DANIEL HERBERT DUNBAR, )
)
Appellant. )
PENNELL, J. — Daniel Herbert Dunbar appeals his conviction for unlawful
possession of methamphetamine. We affirm.
FACTS
On a September morning in 2016, two Spokane County sheriff’s deputies were
dispatched to 4130 South Sundown Drive in response to an anonymous report of
No. 35351-6-III
State v. Dunbar
suspicious activity. The report indicated there had been a lot of nighttime traffic at the
address and that a house on the property was believed to be a “meth[1] lab.” 1 Report of
Proceedings (RP) (Mar. 30, 2017) at 8.
Sundown Drive is a paved county road, located in a residential area. The property
at 4130 South Sundown Drive bisects Sundown Drive and hosts three separate houses.
Although Sundown Drive does not run through 4130 South Sundown Drive, a private
driveway connects the two ends of Sundown Drive and provides access for the three
houses. A cattle gate blocks the driveway on the east, where it meets Sundown Drive.
There is no gate on the west.
The first law enforcement officer at the scene arrived at the gated entry on the east
end of the driveway. This initial officer did not enter the property; rather, he remained
outside the gate. Shortly after the officer arrived, a Chevrolet Suburban began to back out
of the driveway away from the easternmost house on the property. Daniel Dunbar was
driving the vehicle. His girlfriend was also in the car. The officer stopped the Suburban
by “waving his arms” and “saying, hey, hey.” Id. at 28. Mr. Dunbar’s girlfriend rolled
down her window and began speaking with the officer from a distance of 15 feet.
1
Methamphetamine.
2
No. 35351-6-III
State v. Dunbar
Deputy Griffin Criswell arrived shortly after the first officer. He approached the
area from the west side of the driveway, which was not blocked by a gate. From the area
where Deputy Criswell parked his vehicle, he was unable to see inside the Suburban.
Deputy Criswell was familiar with Mr. Dunbar, and knew that Mr. Dunbar had
frequent interactions with the criminal justice system. Upon walking up to the Suburban
and contacting its occupants, Deputy Criswell recognized Mr. Dunbar and asked him if he
had any outstanding warrants. Mr. Dunbar responded that he was not aware of any.
Deputy Criswell then called Mr. Dunbar’s name into radio dispatch and confirmed several
misdemeanor warrants for Mr. Dunbar’s arrest. 2 Mr. Dunbar was then arrested and
searched.
During the search incident to arrest, Deputy Criswell found a small plastic grocery
bag in Mr. Dunbar’s pocket. The bag was knotted shut. Inside the bag, Officer Criswell
discovered a milky, crystalline substance that field-tested positive for methamphetamine.
The state crime lab later confirmed the substance was methamphetamine.
Mr. Dunbar was charged by information with possession of a controlled substance.
Prior to trial, he moved to suppress evidence seized at the time of his arrest. He argued
2
Deputy Criswell explained he ran Mr. Dunbar’s name for warrants, “[b]ecause
I’ve had numerous run-ins with him and he’s rather prolific.” 1 RP (Mar. 30, 2017) at 11.
3
No. 35351-6-III
State v. Dunbar
law enforcement violated his right to privacy by arresting him on a private driveway.
According to Mr. Dunbar, the driveway at 4130 South Sundown Drive was marked with
three separate no trespassing signs, one for each of the houses serviced by the driveway.
Deputy Criswell denied seeing any such signs.
Based on the evidence presented at the hearing, the trial judge denied Mr.
Dunbar’s suppression motion. The court recognized that the driveway was privately
owned and not a part of Sundown Drive. However, it determined that Deputy Criswell’s
use of the driveway was not unreasonable, given that the driveway serviced three homes.
Although the parties had not raised the issue of whether Mr. Dunbar had been
unconstitutionally seized prior to his formal arrest, the trial judge found that “[t]here was
no evidence presented that law enforcement seized Mr. Dunbar prior to his being arrested
for the active warrants.” Clerk’s Papers (CP) at 39.
A different judge presided over Mr. Dunbar’s trial. Just prior to trial, the court
held a hearing regarding the admissibility of Mr. Dunbar’s post-arrest statements to
Deputy Criswell. At this hearing, Deputy Criswell admitted seeing the no trespassing
signs. However, Deputy Criswell explained he did not believe the no trespassing signs
pertained to the driveway. He testified that there was no gate blocking his access to the
driveway. The trial court determined that Mr. Dubar’s post-arrest statement was subject
4
No. 35351-6-III
State v. Dunbar
to suppression. However, the court did not disturb the prior trial judge’s decision as to
whether there had been an unlawful search.
At trial, the State offered isolated testimony from the dispatch report, indicating
that officers were responding to a potential “meth lab.” The testimony was as follows:
Q: And did the radio provide you with details of that suspicious
vehicle?
A: They did. If I could consult the CAD, which is our computer-aided
dispatch program. It said a white travel trailer showed up sometime last
night and provided a Washington plate, and says trailer is on the yard at
location. House is likely a meth lab, lots of traffic at night and car doors
slamming at night keeping neighbors up at night.
1 RP (May 2, 2017) at 195 (emphasis added). No additional testimony was elicited
regarding the “meth lab” allegation. The allegation was not repeated at any point during
trial or summation.
Mr. Dunbar’s defense consisted of challenging the State’s ability to prove that the
substance in his possession was methamphetamine. Counsel elicited the fact that the bag
containing the methamphetamine was found to be “leaking” at the time it arrived at the
state crime lab. 2 RP (May 2, 2017) at 257-58; 2 RP (May 3, 2017) at 265-66. The jury
heard testimony on how the evidence was stored, including the use of Ziploc bags at the
property, and additional Ziploc bags and an evidence envelope once the evidence was
5
No. 35351-6-III
State v. Dunbar
sent for storage. The jury also heard testimony on the crime lab’s anticontamination
measures and the transportation measures used to guard against evidence contamination.
Mr. Dunbar was convicted of possession of a controlled substance. He was
sentenced to 12 months and 1 day of confinement. Mr. Dunbar now timely appeals from
that judgment and sentence.
ANALYSIS
The trial court’s suppression rulings
Review of a trial court’s suppression rulings involves mixed questions of fact
and law. State v. Samalia, 186 Wash. 2d 262, 269, 375 P.3d 1082 (2016). A trial court’s
factual findings are reviewed for substantial evidence. State v. Hill, 123 Wash. 2d 641,
647, 870 P.2d 313 (1994). Legal conclusions are reviewed de novo. State v. Russell,
180 Wash. 2d 860, 867, 330 P.3d 151 (2014).
Private driveway
Mr. Dunbar argues Deputy Criswell violated his right to privacy3 by entering the
private driveway at 4130 South Sundown Drive without a warrant. According to Mr.
Dunbar, Deputy Criswell’s conduct amounted to an illegal search and evidence obtained
from the search, including the methamphetamine, should have been suppressed.
3
U.S. CONST. amend. IV; WASH. CONST. art. I, § 7.
6
No. 35351-6-III
State v. Dunbar
We find no illegal entry or search. Law enforcement, like members of the public,
have implied permission to attempt contact with a home’s occupants during daylight
hours by utilizing a home’s driveway. State v. Ross, 141 Wash. 2d 304, 312-13, 4 P.3d 130
(2000). A no trespassing sign, alone, is insufficient to manifest an intent to revoke this
implied permission. State v. Jesson, 142 Wash. App. 852, 858-59, 177 P.3d 139 (2008).
Instead, additional indicators of privacy such as a high fence, closed gate, security device,
dogs, or remote location are necessary to relay a property holder’s intent to close a
home’s access route to the public. Id.; see also State v. Chaussee, 72 Wash. App. 704, 710,
866 P.2d 643 (1994).
The facts in this case do not suggest that the implied invitation to access the houses
on South Sundown Drive had been revoked or that Deputy Criswell ventured into an area
that was not impliedly open to the public. The three houses on South Sundown Drive
shared a single driveway. It was therefore foreseeable that a variety of unknown visitors
and business persons would access the area. Deputy Criswell did not deviate from what
would reasonably be expected of a business invitee or some other visitor. He did not
deploy subterfuge to enter the property. He was at the property during daylight hours and
did not breach any closed gates or fences. Given the totality of these circumstances, the
trial court correctly determined Deputy Criswell did not engage in an illegal warrantless
7
No. 35351-6-III
State v. Dunbar
search when he made contact with Mr. Dunbar in the driveway to 4130 South Sundown
Drive.
Seizure of Mr. Dunbar
Mr. Dunbar also argues that he was illegally seized without a warrant when law
enforcement officers stopped his vehicle, asked him about outstanding warrants, and ran
his name for warrants. 4 Mr. Dunbar has the burden of demonstrating illegal seizure.
State v. O’Niell, 148 Wash. 2d 564, 574, 62 P.3d 489 (2003). He has not met this
requirement.
A law enforcement officer may engage members of the public in social
interactions without implicating constitutional rights to be free from governmental
intrusion. State v. Harrington, 167 Wash. 2d 656, 664-65, 222 P.3d 92 (2009); State v.
Young, 135 Wash. 2d 498, 511, 957 P.2d 681 (1998). Whether a particular interaction with
law enforcement amounts to a seizure or a social contact requires objectively assessing
the totality of the surrounding circumstances. An encounter will rise to the level of a
seizure only when the officer’s use of force or show of authority would lead a reasonable
4
Mr. Dunbar also argues that the warrant check violated his right to privacy. This
complaint is unfounded as warrant information is contained within a public database, not
private property.
8
No. 35351-6-III
State v. Dunbar
person to feel compelled to remain on the scene or to comply with law enforcement’s
commands. O’Neill, 148 Wash. 2d at 574; Young, 135 Wash. 2d at 511.
Prior to his arrest on outstanding warrants, Mr. Dunbar’s contact with the law
enforcement officers was very limited. His vehicle had been flagged down by the initial
officer at the scene. However, law enforcement did not signal that Mr. Dunbar was
required to stop his car by using a siren or overhead lights. Harrington, 167 Wash. 2d at
665 (absence of siren or overhead lights indicative of social contact). In fact, the two
patrol cars on the scene were located a considerable distance from Mr. Dunbar’s vehicle.
Id. (inference of social contact when patrol car was out of sight). In addition, the
evidence at the suppression hearings did not show that, prior to the arrest, law
enforcement officers ever directed Mr. Dunbar’s movements or sought to control the
scene. See id. at 666-67 (request to remove hands from pocket suggestive of seizure).
Nor did officers engage in threatening conduct, such as physically touching Mr. Dunbar,
displaying their weapons, requesting a frisk, or using strong language. Id. at 666-68
(explaining circumstances that convert a social contact into a seizure).
The only pre-arrest circumstances that could have been indicative of a seizure, as
opposed to a social contact, were the presence of two officers and Deputy Criswell’s
question regarding warrants. These were not sufficiently intrusive to convert Mr.
9
No. 35351-6-III
State v. Dunbar
Dunbar’s exchange with Deputy Criswell into a nonconsensual seizure. The record
does not suggest that the presence of two officers, as opposed to one, made the scene
“threatening.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 64 L.
Ed. 2d 497 (1980). Given the apparent history between Deputy Criswell and Mr. Dunbar,
a reasonable person in Mr. Dunbar’s position would have expected to have his name run
for warrants. Accordingly, Deputy Criswell did not change the nature of his interaction
with Mr. Dunbar merely by referencing this obvious issue. The trial court’s conclusion
that Mr. Dunbar’s pre-arrest contact with Deputy Criswell did not amount to seizure was
warranted.
Admission of contents of 911 call at trial
At trial, Mr. Dunbar moved to exclude testimony regarding the details of the
anonymous 911 call. Specifically, Mr. Dunbar objected to the caller’s claim regarding a
suspected “meth lab.” Mr. Dunbar argued that this allegation was irrelevant and its
admission would deny Mr. Dunbar his right of cross-examination. 5 U.S. CONST. amend.
VI; WASH. CONST. art. I, § 22. The trial court allowed the State to elicit evidence of the
5
Mr. Dunbar also challenges the admission of the anonymous allegation on
grounds of improper character evidence under ER 404. However, the record does not
show that he raised this specific objection in the trial court. Accordingly, an objection
based on character evidence grounds has been waived on appeal, and this court will not
address it on the merits. RAP 2.5(a).
10
No. 35351-6-III
State v. Dunbar
allegation under the theory that it was relevant to the state of mind of the law enforcement
officers.
We agree with Mr. Dunbar: the evidence in question should have been excluded.
The anonymous caller’s allegation that the property housed a “meth lab” had little
technical relevance to the State’s case. Law enforcement could have easily explained
their reasons for going out to South Sundown Drive without mentioning that specific
issue. But at the same time, the anonymous caller’s allegation was at least somewhat
suggestive of guilt 6 and, as such, raised concerns regarding Mr. Dunbar’s constitutional
right to confront adverse witnesses. See State v. Lui, 179 Wash. 2d 457, 480, 315 P.3d 493
(2014) (confrontation clause applies to witnesses against the defendant). The information
relayed by the caller was testimonial, in that it relayed evidence of a past crime to law
enforcement. Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 165 L. Ed. 2d
224 (2006). Because cross-examination of the anonymous caller was never afforded or
even possible, the caller’s inculpatory statements should have been excluded.
6
Given that Mr. Dunbar’s defense was that the State failed to prove the substance
in his pocket was methamphetamine, the anonymous caller’s allegation that Mr. Dunbar
was driving away from a suspected “meth lab” could have suggested to the jury that the
substance in Mr. Dunbar’s pocket was, in fact, methamphetamine. Evidence need not be
conclusive, nor even strong, to be inculpatory.
11
No. 35351-6-III
State v. Dunbar
While the trial court should have excluded the anonymous caller’s “meth lab”
allegation, we find this error harmless beyond a reasonable doubt. See State v. Jasper,
174 Wash. 2d 96, 117, 271 P.3d 876 (2012) (confrontation clause violations are subject to a
harmless error analysis). The reference to the anonymous caller’s allegation was brief, it
was not repeated, and it did not pertain to Mr. Dunbar’s defense regarding mishandled
evidence. In addition, the untainted evidence at trial was overwhelming. Accordingly,
“where the untainted evidence admitted is so overwhelming as to necessarily lead to a
finding of guilt, [a confrontation clause violation] is harmless.” State v. Davis, 154 Wash. 2d
291, 305, 111 P.3d 844 (2005), aff’d by Davis v. Washington, 547 U.S. 813, 126 S. Ct.
2266, 165 L. Ed. 2d 224 (2006). Having reviewed the record, we find no reasonable
possibility that the outcome of Mr. Dunbar’s trial would have been different had the trial
court excluded the 911 caller’s allegation. The conviction is therefore affirmed.
REQUEST TO STRIKE TRIAL COURT COSTS
Citing State v. Ramirez, 191 Wash. 2d 732, 426 P.3d 714 (2018), Mr. Dunbar has
filed supplemental briefing requesting that we strike the $200 criminal filing fee and
$100 deoxyribonucleic acid (DNA) collection fee imposed by the trial court at sentencing.
Ramirez was decided after the close of briefing in this case. The decision held that the
12
No. 35351-6-III
State v. Dunbar
2018 amendments 7 to Washington’s legal financial obligation scheme apply prospectively
to cases on direct appellate review at the time of enactment. Of interest to Mr. Dunbar,
the 2018 amendments prohibit imposition of a $200 criminal filing fee on defendants
who are indigent at the time of sentencing as defined by RCW 10.101.010(3)(a)-(c).
RCW 36.18.020(2)(h). Also prohibited is the assessment of a DNA database fee if the
state has previously collected the defendant’s DNA as a result of a prior conviction.
RCW 43.43.7541.
The record before the court indicates Mr. Dunbar’s request for relief is controlled
by Ramirez. 8 Specifically, Mr. Dunbar was indigent at the time of sentencing as defined
by RCW 10.101.010(3)(a) (receiving public assistance) and RCW 10.101.010(3)(c)
(receiving income of 125 percent or less of the current federally established poverty level)
and Mr. Dunbar’s lengthy felony record is an indication that a DNA fee has been
previously collected. Accordingly, we grant Mr. Dunbar his requested relief on this issue
and direct the trial court to strike the $200 criminal filing fee and the $100 DNA fee from
Mr. Dunbar’s judgment and sentence.
7
LAWS OF 2018, ch. 269.
8
The State has not responded to Mr. Dunbar’s supplemental assignment of error.
13
No. 35351-6-111
State v. Dunbar
CONCLUSION
Mr. Dunbar's conviction is affirmed. This matter is remanded to the trial court
with instructions to strike the $200 criminal filing fee and the $100 DNA collection fee
from Mr. Dunbar's judgment and sentence.
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.
Pennell, J.
WE CONCUR:
Siddoway, J.
14