State of Washington v. Isaiah Thomas Oliver ( 2024 )

FILED
FEBRUARY 8, 2024
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. 39384-4-III
Respondent, )
)
v. )
)
ISAIAH THOMAS OLIVER, ) UNPUBLISHED OPINION
)
Appellant. )
STAAB, J. — Isaiah Oliver appeals from a conviction for first degree unlawful
possession of a firearm following a bench trial. He argues: (1) defense counsel was
ineffective for failing to bring a motion to suppress the firearm observed by Officer Clay
Pierson with the aid of a flashlight while looking through the window of a vehicle at
night, and (2) the trial court erred in finding that the plain view exception to the warrant
requirement applied. We disagree with both arguments and affirm.
BACKGROUND
Officer Pierson was employed by the Kalispell Tribal Police Department. On the
date of the incident in question, Officer Pierson was on duty and conducting a daily prowl
check at an apartment complex. While at the complex, he noticed a bright green Dodge
Charger with its lights on, parked at the complex’s office even though the office was
No. 39384-4-III
State v. Oliver
closed. Officer Pierson was fairly familiar with vehicles in the complex and had never
seen the Charger before, and there were not usually vehicles parked in that area with their
lights on.
Officer Pierson left the apartment complex to respond to a welfare check at a
nearby casino. At the casino he noticed the same Charger and saw two individuals
exiting the vehicle. After Officer Pierson conducted the welfare check, he returned to the
Charger and shined his flashlight through the driver’s side window. He immediately
observed a firearm “tucked in the driver’s seat and the center console.” Rep. of Proc.
(Nov. 7, 2022) at 128.
Officer Pierson learned that the passenger of the vehicle was Isaiah Oliver and that
he and the driver were both prohibited from possessing firearms.
Oliver was placed under arrest, and the State charged him with first degree
unlawful possession of a firearm. He waived his right to a jury trial and the case was
tried to the bench.
At trial, Officer Pierson testified about his discovery of the firearm. Defense
counsel cross-examined Officer Pierson and elicited testimony that the Charger had tinted
windows.1
1
On appeal, Oliver’s counsel argues that Oliver’s attorney at trial failed to conduct
any cross-examination of Officer Pierson during the bench trial and failed to ask about
the tinted windows. See Br. of Appellant at 7. This assertion is belied by the record.
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Following a bench trial, the trial court found Oliver guilty of one count of first
degree unlawful possession of a firearm based on the firearm observed by Officer Pierson
in the Charger. The court entered written findings of fact and conclusions of law.
Relevant to this appeal, the court found:
12) Upon looking in the driver’s side door window, Officer Pierson
observed a semi-automatic handgun lodged between the driver’s seat and
the center console of the vehicle in plain view;
13) Officer Pierson testified that he also looked in the passenger side
door window with the assistance of a flashlight and observed the same
semi-automatic handgun lodged between the driver’s seat and the center
console of the vehicle in plain view from that view[.]
Clerk’s Papers (CP) at 93. It also concluded that “Oliver knowingly had a firearm in his
possession or control, to wit a Ruger .45 which was in plain view and within his
immediate area of control while riding as a passenger in the vehicle.” CP at 94.
Oliver appeals.
ANALYSIS
1. INEFFECTIVE ASSISTANCE OF COUNSEL
Oliver argues that defense counsel was ineffective for failing to bring a motion to
suppress the firearm observed by Officer Pierson through the window of the Charger.
This court disagrees.
Criminal defendants have a constitutionally guaranteed right to effective
assistance of counsel. U.S. CONST. amend. VI; WASH. CONST. art. I, § 22; State v. Lopez,
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State v. Oliver
190 Wn.2d 104, 115, 410 P.3d 1117 (2018). “A claim of ineffective assistance of
counsel” is “an issue of constitutional magnitude” that “may be considered for the first
time on appeal.” State v. Nichols, 161 Wn.2d 1, 9, 162 P.3d 1122 (2007). Claims of
ineffective assistance of counsel are reviewed de novo. State v. White, 80 Wn. App. 406,
410, 907 P.2d 310 (1995).
A defendant bears the burden of showing (1) that his counsel’s performance “fell
below an objective standard of reasonableness based on consideration of all the
circumstances” and, if so, (2) that there is a reasonable probability that but for counsel’s
poor performance, the outcome of the proceedings would have been different. State v.
McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). “If either element . . . is not
satisfied, the inquiry ends.” State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009).
In reviewing the record for deficiencies, there is a strong presumption that
counsel’s performance was reasonable. McFarland, 127 Wn.2d at 335. “The burden is
on a defendant alleging ineffective assistance of counsel to show deficient
representation.” Id. at 335. “The reasonableness of counsel’s performance is to be
evaluated from counsel’s perspective at the time of the alleged error and in light of all the
circumstances.” Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S. Ct. 2574, 91 L. Ed.
2d 305 (1986). “When counsel’s conduct can be characterized as legitimate trial strategy
or tactics, performance is not deficient.” Kyllo, 166 Wn.2d at 863.
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“If a defendant centers their claim of ineffective assistance of counsel on their
attorney’s failure to object, then ‘the defendant must show that the objection would likely
have succeeded.’” State v. Vazquez, 198 Wn.2d 239, 248, 494 P.3d 424 (2021) (quoting
State v. Crow, 8 Wn. App. 2d 480, 508, 438 P.3d 541 (2019)). “‘Only in egregious
circumstances, on testimony central to the State’s case, will the failure to object
constitute incompetence of counsel justifying reversal.’” Id. (quoting Crow, 8 Wn. App.
2d at 508).
Oliver maintains that defense counsel was ineffective for failing to bring a motion
to suppress the firearm found in Officer Pierson’s initial search of the Charger with the
flashlight. He claims that the search was unconstitutional under both the United States
and Washington Constitutions. Oliver fails to show that a motion to suppress was likely
to succeed.
The Fourth Amendment to the United States Constitution prohibits unreasonable
searches and seizures. “A Fourth Amendment search occurs when the government
violates a subjective expectation of privacy that society recognizes as reasonable.” State
v. Muhammad, 194 Wn.2d 577, 591, 451 P.3d 1060 (2019). Similarly, article I, section 7
of the Washington Constitution states that “‘[n]o person shall be disturbed in his [or her]
private affairs, or his [or her] home invaded, without authority of law.’” Id. at 586
(alteration in original) (quoting article I, sec. 7). Under the Washington Constitution, “a
search occurs when the government disturbs ‘those privacy interests which citizens of
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State v. Oliver
this state have held, and should be entitled to hold, safe from governmental trespass
absent a warrant.’” Id. (quoting State v. Myrick, 102 Wn.2d 506, 511, 688 P.2d 151(1984)).
Notably, the open view doctrine provides that a detection does not constitute a
search “‘when a law enforcement officer is able to detect something by utilization of one
or more of his senses while lawfully present at the vantage point where those senses are
used[.]’” State v. Bobic, 140 Wn.2d 250, 259, 996 P.2d 610 (2000) (quoting State v.
Rose, 128 Wn.2d 388, 392, 909 P.2d 280 (1996)).
There is no argument regarding whether Officer Pierson was permitted to be in the
area of the vehicle. Just as Officer Pierson could lawfully be parked outside of the
casino, he could also intentionally look through the windows of the vehicle also parked
there.
In regard to Officer Pierson’s use of a flashlight to look through the window of the
vehicle, our Supreme Court has upheld the use of a flashlight under the open view
doctrine where the flashlight “does not transform an observation which would fall within
the open view doctrine during daylight into an impermissible search simply because
darkness falls.” Rose, 128 Wn.2d at 398-99. “There is no reasonable expectation of
privacy in” “contraband [left] in plain sight, visible through” a window. Id. at 394, 399.
The court in Rose explained that employing a flashlight does not render the viewing
intrusive because it is an “exceedingly common device.” Id. at 399.
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Here, Officer Pierson used a flashlight to aid in looking through the window of the
vehicle at night. This use of a flashlight to aid in seeing what would apparently be
readily visible during daylight hours is permissible under the open view doctrine, and
therefore did not transform Officer Pierson’s observation inside the vehicle into a search.
Although Oliver argues on appeal that the vehicle’s windows were tinted and
therefore Officer Pierson still would not have been able to see through them during
daylight hours without the aid of a flashlight, the record is undeveloped as to this fact and
therefore this court cannot rely on it as a basis for finding that a motion to suppress
brought by defense counsel would have succeeded.2
On the record before us, defense counsel was not ineffective for failing to bring a
motion to dismiss Officer Pierson’s “search” of the Charger because it did not constitute
a search under the open view doctrine.
2. PLAIN VIEW EXCEPTION TO WARRANT REQUIREMENT
Next, we reject Oliver’s contention that the trial court found that the “plain view”
exception to the warrant requirement applied to Officer Pierson’s initial “search” of the
2
Oliver maintains that it is the State’s burden on appeal to show that Officer
Pierson could have seen the firearm through the window without the aid of a flashlight
during daylight hours. However, the defendant, not the State, carries the burden in an
“ineffective assistance of counsel” claim. See State v. McFarland, 127 Wn.2d at 335.
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vehicle.3 Following the bench trial, the trial court entered findings of fact, conclusions of
law, and a judgment in which the court determined that the firearm was in “plain view” to
any individual sitting on the passenger side of the Charger and also in “plain view” when
Officer Pierson looked through the window. This conclusion was part of the trial court’s
finding of guilt, it was not a finding that the plain view exception to the warrant
requirement applied. At the time the court entered the finding it was not addressing any
allegations of a warrantless search.
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.
_________________________________
Staab, J.
WE CONCUR:
_________________________________ _________________________________
Fearing, C.J. Pennell, J.
3
Oliver also assigns error to the trial court’s conclusions that the possession or
control of the firearm occurred in the State of Washington and each of the elements of
unlawful possession of a firearm were proved beyond a reasonable doubt. However, he
fails to provide argument in support of his assignments of error and we therefore decline
to consider it. See State v. Stubbs, 144 Wn. App. 644, 652, 184 P.3d 660 (2008)
(“Passing treatment of an issue or lack of reasoned argument is insufficient to allow for
our meaningful review.”), rev’d on other grounds, 170 Wn.2d 117, 240 P.3d 143 (2010).
8