137 Wn. App. 387, Feb. 2007 State v. Kirwin

[No. 33642-1-II. Division Two. February 27, 2007.]

THE STATE OF WASHINGTON , Respondent , v. DENNIS RAY KIRWIN , Appellant .

[1] Searches and Seizures - Warrantless Search - Validity - In General. A warrantless search is per se unreasonable under the Fourth Amendment or Const. art. I, § 7 unless the search falls within a specific exception to the warrant requirement.

[2] Searches and Seizures - Incident to Arrest - In General. A warrantless search incident to a lawful arrest is a recognized exception to the warrant requirement of the Fourth Amendment and Const. art. I, § 7.

[3] Searches and Seizures - Incident to Arrest - Scope - In General. A warrantless search made incident to a lawful arrest is valid if (1) the object searched was within the arrestee's control immediately before or at the moment of the arrest and (2) the events transpiring after the arrest and before the search do not render the search unreasonable.

[4] Searches and Seizures - Automobiles - Warrantless Search - Incident to Arrest of Occupant - Recent Occupant - "Immediate Control" - In General. A motor vehicle may be searched incident to the arrest of an occupant thereof if the vehicle was within the arrestee's control immediately before or at the moment of arrest.

[5] Criminal Law - Review - Issues Not Raised in Trial Court - Constitutional Rights - Court Rule - Purpose. RAP 2.5(a)(3), which permits a litigant to raise an issue for the first time on appeal if the alleged error constitutes manifest error affecting a constitutional right, is an exception to the general rule that an appellate court will not consider issues raised for the first time on appeal and is not intended to afford criminal defendants new trials whenever they identify a constitutional issue not litigated in the trial court.

[6] Appeal - Review - Issues Not Raised in Trial Court - Constitutional Rights - Court Rule - "Manifest" Error - Burden on Claimant. To establish manifest constitutional error, which RAP 2.5(a)(3) allows to be raised for the first time on appeal, an appellant must show how, in the context of the trial, the alleged error actually affected a constitutional right.

[7] Appeal - Review - Issues Not Raised in Trial Court - Constitutional Rights - Court Rule - "Manifest" Error - Prejudice - Necessity. For purposes of RAP 2.5(a)(3), under which a manifest error affecting a constitutional right may be raised for the first time on appeal, an alleged error is not "manifest" unless it actually prejudiced the party who is seeking to have the claim of error reviewed.

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[8] Arrest - Misdemeanor - In Presence of Officer - Municipal Code Violation. Under former RCW 10.31.100 (2000), a police officer may make a warrantless arrest for a misdemeanor violation of a municipal code provision committed in the officer's presence.

[9] Appeal - Review - Issues Not Raised in Trial Court - Constitutional Rights - Court Rule - "Manifest" Error - Adequacy of Record. For purposes of RAP 2.5(a)(3), a claim of constitutional error is not "manifest" if the claimant failed to litigate the issue at trial and no error appears in the appellate record as a result.

[10] Criminal Law - Right to Counsel - Effective Assistance of Counsel - Test. A criminal defendant claiming ineffective assistance of counsel must show (1) that counsel's performance was deficient and (2) that the deficient performance was prejudicial to the defense.

[11] Criminal Law - Right to Counsel - Effective Assistance of Counsel - Failure To Move To Suppress - Frivolous Motion. Defense counsel's failure to raise a frivolous motion to suppress evidence does not constitute ineffective assistance of counsel.

[12] Appeal - Review - Issue First Raised in Oral Argument - In General. An appellate court generally will not consider an issue raised for the first time in oral argument. It is particularly unfair for an appellate court to consider an argument when opposing counsel has had no opportunity to prepare a response.

[13] Appeal - Review - Issues Not Briefed - Procedure. Under RAP 12.1(b), if a party desires to raise an issue on appeal that has not been briefed, the party must notify the appellate court so that the court may have the opportunity to determine if the issue should be considered.

[14] Arrest - Validity - Ordinance Violation - Validity of Ordinance - Effect. In deciding whether to arrest an individual for violating a municipal ordinance, a police officer may rely on the ordinance as written. An arrest is not invalid for lack of legal authority simply because the ordinance on which the arrest is based is later found to be unconstitutional, so long as the ordinance is not flagrantly unconstitutional on its face.

[15] Municipal Corporations - Ordinances - Validity - Conflict With State Law - Different Punishments. A municipal ordinance defining a criminal offense does not necessarily conflict with a comparable state statute merely because it prescribes greater penalties than does the statute.Nature of Action: Prosecution for unlawful possession of a controlled substance. Evidence of the crime was found in a motor vehicle that was stopped by a police officer after

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the officer observed a passenger throw a partially full 24-ounce beer can onto the sidewalk. After the officer arrested the passenger for littering, he searched the passenger compartment of the vehicle incident to the arrest. The officer asked the defendant's permission to open and search a locked center console, which the defendant granted. Inside the console, the officer discovered a large quantity of cash and a cigarette pack containing what the officer suspected to be amphetamine.

Superior Court: The Superior Court for Thurston County, No. 05-1-00165-1, Gary Tabor, J., on August 11, 2005, entered a judgment on a verdict of guilty.

Court of Appeals: Holding that the arresting officer had authority to arrest the vehicle passenger for a misdemeanor committed in his presence and that the fruits of the search incident to that arrest are admissible, the court affirms the judgment.

Patricia A. Pethick and Thomas E. Doyle , for appellant .

Edward G. Holm , Prosecuting Attorney, and James C. Powers , Deputy, for respondent .

¶1 Quinn-Brintnall, J. - Dennis Kirwin appeals his conviction for unlawful possession of methamphetamine. Kirwin was driving in Olympia when Officer Kory Pearce saw the passenger in Kirwin's truck throw a beer can onto the sidewalk. On appeal, Kirwin argues that the evidence supporting his conviction was the fruit of an unlawful arrest for the infraction of littering and that his counsel was ineffective for failing to move to suppress evidence seized during a search incident to an unlawful arrest. But under the Olympia Municipal Code (OMC), littering is a misde

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meanor. Under former RCW 10.31.100 (2000), the officer had authority to arrest for a misdemeanor committed in his presence and the fruits of this search incident to that lawful arrest are admissible.«1»We affirm.

FACTS

BACKGROUND

¶2 Olympia Police Officer Pearce was on a routine patrol when he saw a passenger in a truck driven by Kirwin throw a partially full 24-ounce beer can onto the sidewalk. Pearce activated his emergency lights and then noticed that the passenger, Casey Irwin, seemed to conceal something between the front seats. Kirwin pulled over.

¶3 Officer Pearce asked both men for identification; Irwin gave his name and birth date, and Kirwin showed his Washington State identification card. Pearce arrested Irwin for littering. Irwin admitted that he had littered in order to avoid being caught with an open container in the truck.

¶4 Officer Pearce then asked Kirwin to step out of the truck. Pearce was concerned for officer safety because it was 2 AM and dark and Kirwin wore bulky, baggy outer clothing. He frisked Kirwin and found a large amount of cash and a Marlboro cigarette pack in his pocket. He then asked Kirwin to wait by the patrol car.

¶5 Officer Pearce then searched the passenger side of the truck incident to Irwin's arrest, paying special attention to the area in which he had seen Irwin conceal something. In that area, Pearce found a black cloth mesh bag containing several baggies that he believed held a controlled substance.

¶6 The officer also noticed a locked center console and asked Kirwin's permission to open and search it. Kirwin


«1»At oral argument, Kirwin's counsel attempted to argue for the first time that state law preempted Olympia's littering ordinance. Like the United States Supreme Court in Norfolk Southern Railway Co. v. Sorrell , ___ U.S. ___, 127 S. Ct. 799, 166 L. Ed. 2d 638, 655 (2007), we reject attempts to "smuggle" additional arguments into a case during oral argument.


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replied that the truck belonged to his boss. Officer Pearce told Kirwin that he could effectively consent because the truck was under his control. Kirwin agreed, allowing Pearce to use a key from the key ring in the truck's ignition to open the console. Inside, Pearce found an envelope with $2,800 in cash and a Marlboro cigarette pack containing what Pearce suspected was amphetamine.

¶7 Officer Pearce arrested Kirwin and advised him of his Miranda «2»rights, which he waived. Pearce asked Kirwin whether the items inside the console were his, and Kirwin admitted that both the $2,800 and the drugs belonged to him.

PROCEDURE

¶8 The State charged Kirwin with one count of unlawful possession of a controlled substance, methamphetamine, in violation of RCW 69.50.4013 (1). The State offered exhibit 1, the substance found in the console, which the crime lab identified as 3.4 grams of crystalline methamphetamine. Kirwin's counsel did not move to suppress this evidence and the trial court did not hold a CrR 3.5 or CrR 3.6 hearing. A jury found Kirwin guilty and the trial court sentenced him to 12 months and 1 day incarceration.

¶9 In this appeal, we address two issues: (1) are the 3.4 grams of crystalline methamphetamine the fruit of an unlawful arrest for an infraction and (2) is Kirwin's argument that OMC 9.40.110 violates Washington Constitution article XI, section 11 properly before us for review when Kirwin made the argument for the first time during oral argument.

ANALYSIS

SEARCH INCIDENT TO LAWFUL ARREST

¶10 Kirwin argues that (1) the police had no authority to arrest his passenger for littering because littering is a civil


«2» Miranda v. Arizona , 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).


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infraction for which police may not arrest and (2) the methamphetamine in the console was therefore the fruit of an unlawful arrest and inadmissible. We disagree.

[1-4]¶11 A warrantless search is per se unreasonable under the fourth amendment of the United States Constitution and article I, section 7 of the Washington Constitution unless it falls within one or more of several specific exceptions to the warrant requirement. State v. Johnson , 128 Wn.2d 431 , 446-47, 909 P.2d 293 (1996). A search incident to arrest is one such exception. Johnson , 128 Wn.2d at 447 . A search incident to arrest is valid only if (1) the object searched was within the arrestee's control immediately before, or at the moment of, arrest and (2) the events occurring after the arrest but before the search did not render the search unreasonable. State v. Smith , 119 Wn.2d 675 , 681, 835 P.2d 1025 (1992). In the context of a vehicle search incident to arrest, the so-called "automobile exception" to the warrant requirement, the vehicle is the object searched; thus, it must have been within the arrestee's control immediately before or at the moment of arrest. State v. Rathbun , 124 Wn. App. 372 , 376-80, 101 P.3d 119 (2004); and see State v. Cass , 62 Wn. App. 793 , 796-97, 816 P.2d 57 (1991) (explaining that the search incident to arrest exception may authorize the police to search a vehicle after arresting the vehicle's passenger), review denied , 118 Wn. App. 1012 (1992).

[5]¶12 Kirwin did not move to suppress this evidence below. Although we generally do not consider issues raised for the first time on appeal, we will if the alleged error is a " 'manifest error affecting a constitutional right.' " State v. Contreras , 92 Wn. App. 307 , 311, 966 P.2d 915 (1998) (quoting RAP 2.5(a)(3)). But RAP 2.5(a)(3) is an exception to the general rule and is not intended to afford criminal defendants new trials whenever they identify a constitutional issue not litigated below. State v. McFarland , 127 Wn.2d 322 , 333, 899 P.2d 1251 (1995). Thus, the claimed error must not only be truly of constitutional magnitude, it must be "manifest." McFarland , 127 Wn.2d at 333 .

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[6, 7]¶13 To show that the alleged error was manifest, Kirwin must demonstrate "how, in the context of the trial, the alleged error actually affected [his] rights." McFarland , 127 Wn.2d at 333 . In other words, Kirwin must show that his trial counsel's failure to challenge the search was prejudicial. McFarland , 127 Wn.2d at 333 . Kirwin offers only one meritless argument and has demonstrated neither a manifest error nor prejudice.

[8]¶14 Under State law, littering to the extent involved here is a civil infraction that is punishable only by a fine. RCW 70.93.060 (2), 7.80.120(2). But under OMC 9.40.110, littering is a misdemeanor, punishable by a fine and up to 90 days in jail. OMC 9.64.010. State law authorizes a police officer to arrest a person without a warrant for committing a misdemeanor in the officer's presence. Former RCW 10.31.100 . "Misdemeanor" includes misdemeanor violations of municipal codes. See , e.g. , State v. Greene , 97 Wn. App. 473 , 477-78, 983 P.2d 1190 (1999); City of Seattle v. Cadigan , 55 Wn. App. 30 , 34-37, 776 P.2d 727, review denied , 113 Wn.2d 1025 (1989); State v. Hawkins , 7 Wn. App. 688 , 690, 502 P.2d 464 (1972). It is undisputed that Officer Pearce saw Irwin throw a partially full beer can from a moving vehicle near the corner of Fifth and Plum in Olympia. Thus, former RCW 10.31.100 gave Pearce authority to lawfully arrest him and search incident to that arrest. Because Kirwin does not offer any other argument as to why the evidence should have been suppressed, he has failed to meet his burden to show prejudice. See McFarland , 127 Wn.2d at 333 .

[9]¶15 Further, an error is not manifest if the appellant chose not to litigate the issue at the trial court and no error appears on the record as a result. State v. Valladares , 99 Wn.2d 663 , 671-72, 664 P.2d 508 (1983). Kirwin's attorney did not move to suppress the drugs, which were then properly admitted without objection as exhibit 1. No constitutional error is manifest on this record.

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EFFECTIVE ASSISTANCE OF COUNSEL

[10, 11]¶16 Kirwin also argues that his trial counsel was ineffective for not challenging the search. To establish ineffective assistance of counsel, Kirwin must show that (1) his trial counsel's performance was deficient and (2) the deficient performance prejudiced him. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Thomas , 109 Wn.2d 222 , 225-26, 743 P.2d 816 (1987). Counsel's performance is not deficient for failing to file frivolous motions to suppress and a defendant is not prejudiced by his counsel's refusal or failure to file a meritless motion. As discussed above, Kirwin failed to establish deficient performance or prejudice and his claim of ineffective assistance of counsel fails.

PREEMPTION

[12, 13]¶17 During his oral argument, Kirwin argued for the first time that the State's littering statute "trumps" OMC 9.40.110 and renders it unconstitutional. We reject appellant's attempt to raise new arguments in a case at the final hour. In its brief, the State noted that under OMC 9.40.110 littering is a misdemeanor if committed within Olympia city limits. Appellant chose not to file a reply brief and waited to address the State's response with a novel argument during oral argument.

¶18 Absent a change in applicable law, we will not consider an issue raised for the first time during oral argument. State v. Olson , 126 Wn.2d 315 , 319-20, 893 P.2d 629 (1995). It is particularly unfair to consider an argument when opposing counsel had no opportunity to prepare a response. See State v. Johnson , 119 Wn.2d 167 , 170-71, 829 P.2d 1082 (1992). Here, the State's counsel did his best to respond to Kirwin's last minute constitutional argument. But the prosecutor, understandably, objected to arguing an issue with no preparation or warning. And Kirwin failed to abide by our rules of appellate procedure that gave him two opportunities to properly address this issue. He did not respond in a reply brief to the State's claim that the

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Olympia ordinance gave police authority to arrest Irwin. And a party who has a meritorious argument that it has not briefed can notify the court that it wishes us to consider the issue under RAP 12.1(b). Johnson , 119 Wn.2d at 171 . Kirwin did not make a RAP 12.1(b) motion. Accordingly, we refuse to address this issue on the merits.

[14, 15]¶19 Although we do not resolve this issue on the merits, we wish to make clear that Kirwin would not have prevailed on this ground. Police may rely on ordinances as written. State v. Potter , 129 Wn. App. 494 , 497, 119 P.3d 877 (2005), aff'd , 156 Wn.2d 835 , 132 P.3d 1089 (2006). An arrest is not invalid for lack of legal authority simply because the ordinance a defendant is arrested under is later found to be unconstitutional. State v. Pacas , 130 Wn. App. 446 , 449, 123 P.3d 130 (2005) (citing State v. White , 97 Wn.2d 92 , 102-04, 640 P.2d 1061 (1982)). Rather, the arrest is invalid only if the ordinance is flagrantly unconstitutional on its face. Pacas , 130 Wn. App. at 449 . We see no flagrant unconstitutionality here. Municipal codes often prescribe penalties greater than State law, but we do not find one case in which a court has found that this difference renders the ordinance unconstitutional. See City of Spokane v. White , 102 Wn. App. 955 , 960-64, 10 P.3d 1095 (2000) (upholding a Spokane domestic assault ordinance, even though the ordinance prohibited a greater range of conduct than the State statute, because the statute did not expressly permit the behavior that Spokane banned and so the laws did not conflict), review denied , 143 Wn.2d 1011 (2001). The arrest was valid, notwithstanding the merits of Kirwin's claim.

¶20 Accordingly, we affirm.\

BRIDGEWATER and ARMSTRONG , JJ., concur.

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