State Of Washington v. Nicholas E. Novion

Filed
Washington State
Court of Appeals
Division Two
July 25, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 49032-3-II
Respondent,
v.
NICHOLAS EDWARD NOVION, UNPUBLISHED OPINION
Appellant.
MELNICK, J. — Nicholas Edward Novion appeals his conviction for two counts of
possession of a controlled substance, one for heroin and one for methamphetamine. Novion
contends the trial court erred by denying his CrR 3.6 motion to suppress evidence seized near the
location where police stopped him. We affirm Novion’s convictions.
FACTS1
Centralia Police Officer Mary Angelique Humphrey responded to a reporting party’s report
of a suspicious person, wearing a green sweatshirt and carrying a black backpack, walking door to
door in a neighborhood and then back to a green Volvo. The reporting party believed that the
person was engaging in illegal drug activity. Humphrey knew that a known drug house existed in
the area. Humphrey also had previous contact with the reporting party and knew the reporting
party was credible.
1
The following facts are taken from the trial court’s mostly unchallenged CrR 3.6 findings of fact,
which are verities on appeal. State v. O’Neill, 148 Wn.2d 564, 571, 62 P.3d 489 (2003).
49032-3-II
Humphrey spoke with the reporting party prior to her arrival to verify that the green Volvo
was still there. Upon arrival, Humphrey contacted two individuals sitting inside the green Volvo.
Humphrey noticed that the driver appeared nervous.
While speaking with the driver, Humphrey heard a house door close behind her. The
officer turned around and noticed Novion, wearing a green sweatshirt and a black backpack, exit
the house. The officer turned back to the driver and determined the driver was Novion’s mother.
The reporting party, who was standing on his porch, then yelled to Humphrey, “There he is” and
pointed down the street. Clerk’s Papers (CP) at 20.
Humphrey turned around and observed Novion down the street.2 Humphrey got in her
marked patrol vehicle and began to search the area for Novion. During this time Humphrey did
not have her overhead lights or her siren on. Humphrey located Novion down the street, coming
from the side of a house and walking towards the street, in a direction away from the officer.
Humphrey parked her patrol vehicle on the street at an angle and activated only the
vehicle’s rear light bar, which directed traffic around her vehicle. Her overhead lights and siren
remained off.
Humphrey exited her patrol vehicle and asked Novion to come to her location. At this
same time, the homeowner exited his home and asked Novion what he was doing next to the house.
Humphrey again asked Novion to come to her location. He complied. Humphrey then handcuffed
Novion and waited for back up to arrive.
2
The trial court found that the officer “observed [Novion] running away from the residence” and
that Humphrey got in her patrol car after “seeing [Novion] running away.” CP at 20-21 (Findings
of Fact 1.4 and 1.5). Novion contends substantial evidence does not support these findings. The
State agrees. We accept the State’s concession and do not include these findings regarding
Humphrey seeing Novion running away in our analysis.
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Once backup arrived, Humphrey went to the side of the house where Novion had been.
She located a pile of items next to a garden reel. In the pile were two prescription bottles with
Novion’s name on them, two bindles of methamphetamine, and a bindle that contained a black tar
substance that turned out to be heroin.3
After the State charged Novion with two counts of possession, he filed a motion to suppress
all evidence seized.
During the suppression hearing, Novion admitted he left the items next to the garden reel
to return and retrieve them later. He also admitted the items were his and that among the items
were heroin and methamphetamine. He also acknowledged that Humphrey did not have her
overhead lights or siren on. Novion testified that “he felt seized because he knew Officer
Humphrey was looking for him and she was driving around in the area.” CP at 22.
The trial court denied Novion’s motion to suppress, concluding the stop by Humphrey
constituted a valid Terry4 stop, and that even if it was not a valid Terry stop, Novion abandoned
the items. The court also concluded no seizure occurred until Humphrey handcuffed Novion.
Following a bench trial, the court convicted Novion as charged. He appeals.
ANALYSIS
Novion contends the trial court erred by denying his motion to suppress the
methamphetamine and heroin located on the side of the home where Novion was arrested. Novion
3
The trial court found that Humphrey found “a bindle that contained what appeared to be black
tar heroin based on Officer Humphrey’s training and experience.” CP at 21 (Finding of Fact 17).
Novion contends substantial evidence does not support this finding. He, however, does not provide
argument in the argument section of his brief to explain his contention. The State agrees that
substantial evidence does not exist. We accept the State’s concession and do not include in our
analysis this finding regarding whether the officer knew the substance was heroin when it was first
discovered.
4
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
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argues Humphrey illegally seized him when she directed him to come to her location because no
reasonable or articulated suspicion existed that Novion was involved in criminal activity.
I. 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 those findings, in turn,
support the trial court's conclusions of law. State v. Russell, 180 Wn.2d 860, 866, 330 P.3d 151(2014). Unchallenged findings of fact are verities on appeal. O’Neill, 148 Wn.2d at 571. We
review a trial court’s legal conclusions de novo. State v. Roden, 179 Wn.2d 893, 898, 321 P.3d
1183 (2014). Because we accept the State’s concession that three of the findings of fact are not
supported by substantial evidence, we review whether the remaining unchallenged findings of fact
support the trial court’s legal conclusions.
II. LEGAL PRINCIPLES
The Fourth Amendment to the United States Constitution and article I, section 7 of the
Washington Constitution prohibit a warrantless search and seizure unless the State demonstrates
that one of the narrow exceptions to the warrant requirement applies. State v. Garvin, 166 Wn.2d
242, 249, 207 P.3d 1266 (2009). “These exceptions include exigent circumstances, consent,
searches incident to a valid arrest, inventory searches, the plain view doctrine, and Terry
investigative stops.” York v. Wahkiakum Sch. Dist. No. 200, 163 Wn.2d 297, 310, 178 P.3d 995(2008) (footnote omitted). A Terry stop requires a well-founded suspicion that the defendant is
engaged in criminal conduct. State v. Doughty, 170 Wn.2d 57, 62, 239 P.3d 573 (2010). The
“police officer must be able to point to ‘specific and articulable facts which, taken together with
rational inferences from those facts, reasonably warrant [the] intrusion.’” State v. Williams, 102
Wn.2d 733, 739, 689 P.2d 1065 (1984) (quoting Terry, 392 U.S. at 21). If the stop goes beyond
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investigatory purposes, it becomes an arrest and requires a valid arrest warrant or probable cause.
State v. Flores, 186 Wn.2d 506, 520-21, 379 P.3d 104 (2016).
The State bears the burden of showing that the search and seizure was supported by a
warrant or an exception to the warrant requirement. State v. Hendrickson, 129 Wn.2d 61, 71, 917
P.2d 563 (1996). The exclusionary rule requires suppression of all evidence obtained pursuant to
a person’s unlawful seizure. State v. Winterstein, 167 Wn.2d 620, 632, 220 P.3d 1226 (2009).
“‘Not every encounter between an officer and an individual amounts to a seizure.’” State
v. Armenta, 134 Wn.2d 1, 10, 948 P.2d 1280 (1997) (quoting State v. Aranguren, 42 Wn. App.
452, 455, 711 P.2d 1096 (1985)). A seizure occurs if, “‘in view of all the circumstances
surrounding the incident, a reasonable person would have believed that he was not free to leave.’”
State v. Mecham, 186 Wn.2d 128, 137, 380 P.3d 414 (2016) (quoting State v. Young, 135 Wn.2d
498, 510, 957 P.2d 681 (1998)). An officer who merely asks questions does not necessarily elevate
a consensual encounter into a seizure. State v. Barnes, 96 Wn. App. 217, 222, 978 P.2d 1131(1999).
III. CONCLUSIONS OF LAW SUPPORTED BY FINDINGS
Here, the trial court concluded the encounter between Humphrey and Novion was a valid
Terry stop. Humphrey responded to a call from a reporting party reporting suspicious behavior in
an area known for drug activity. Humphrey knew the reporting party and knew he had provided
credible information in the past. Humphrey also knew there was a known drug house in the area.
When the officer arrived, she saw a vehicle matching the description of the reported suspicious
vehicle. Novion’s mother sat in the driver’s seat. Soon after, Novion exited a home near where
the car was parked. Humphrey noticed he was wearing the green jacket and black backpack
described by the reporting party. Instead of approaching the vehicle with his mother inside,
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Novion went down the street. Humphrey drove down the street in her patrol car and then observed
Novion coming around the side of a residence. The owner inquired why Novion was on his
property, but Novion just continued walking away.
Taking the above specific and articulable facts together with rational inferences from those
facts, including the fact Humphrey observed Novion committing a criminal trespass, Humphrey
had a well-founded suspicion to stop Novion. Past reports of criminal activity in an area, coupled
with current suspicious behavior, support an investigatory stop. State v. Bray, 143 Wn. App. 148,
153-54, 177 P.3d 154 (2008). At the time Humphrey stopped Novion she observed him coming
around the side of a home, which led the officer to the side of the home where she located
contraband. Because the subsequent seizure of the contraband did not result from an
unconstitutional seizure, the exclusionary rule does not apply. Winterstein, 167 Wn.2d at 632.
We hold that the trial court’s conclusions that the initial stop was lawful and that the
exclusionary rule does not apply were supported by the findings of fact.
We also hold the findings support the trial court’s conclusion that Novion abandoned the
contraband. “Under the common law, a person loses normal privacy interests in property upon
abandonment.” State v. Samalia, 186 Wn.2d 262, 273, 375 P.3d 1082 (2016). “[L]aw enforcement
officers may retrieve and search voluntarily abandoned property without implicating an
individual’s rights under the Fourth Amendment or under article I, section 7 of our state
constitution.” State v. Reynolds, 144 Wn.2d 282, 287, 27 P.3d 200 (2001). Since Novion walked
to the side of a stranger’s home, left several items next to a garden reel, and then walked away
from the items, he abandoned the items. Humphrey could lawfully retrieve and search the items.
The trial court properly concluded likewise. Consequently, the trial court did not err in denying
Novion’s motion to suppress.
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We affirm.
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.
Melnick, J.
We concur:
Bjorgen, C.J.
Sutton, J.
7