State v. Klever

1

STATE OF WASHINGTON, Respondent, v. PAUL ALVIN KLEVER, Appellant.

No. 85024-5-I

Court of Appeals of Washington, Division 1

June 17, 2024

UNPUBLISHED OPINION

Feldman, J.

Paul Klever appeals his 2022 conviction of Possession of a Controlled Substance with Intent to Deliver. Klever argues (a) the trial court erred in denying his motion to suppress the evidence found in his truck on the evening of his arrest (b) the trial court violated his constitutional right to a public trial when it conducted five unrecorded and unmemorialized sidebars during jury selection, and (c) the trial court improperly ordered him to pay a Victim Penalty Assessment (VPA) and community custody supervision fees. Regarding Klever's first argument, we affirm the trial court's order denying Klever's motion. Regarding the second argument, we reverse and remand. Regarding the third argument, we remand to the trial court to strike the VPA and community custody supervision fees.

I

The law enforcement encounter at issue in this appeal occurred in the evening of November 7, 2019. While on patrol, Deputy Erik Strand followed Klever's truck into an abandoned lot where Klever had parked. Deputy Strand did not use his lights or siren. Deputy Strand followed Klever into the lot because he found it odd that Klever had "quickly" pulled off the road. Deputy Strand parked his vehicle 30-40 feet away from Klever, making sure not to block Klever's ability to exit the lot. Deputy Strand did not recognize Klever or Klever's vehicle while following Klever into the lot.

Deputy Strand exited his vehicle and approached Klever's truck on foot. Once Deputy Strand reached the truck, he recognized Klever from prior contacts. Deputy Strand asked Klever what he was doing, and Klever responded that he had thought Deputy Strand was going to pull him over. When asked if he had seen any emergency lights, Klever answered no.

Although Deputy Strand knew who Klever was, he asked Klever to identify himself to see whether Klever would answer truthfully, which Klever did. Deputy Strand then remembered that Klever's driver's license had been suspended at some point in the past and asked Klever if his license was still suspended. Klever answered that it was. At that point Deputy Strand's partner, Deputy Weatherby, arrived at the scene, and Klever was arrested for driving with a suspended license.

Deputy Strand asked for Klever's consent to search the truck, but Klever said no. At some point during this encounter, Deputy Strand called for a nearby K9 officer who arrived at the scene within five minutes of Deputy Strand's initial contact with Klever. The K9 officer performed a "sniff" test around Klever's truck and "indicated the odor of narcotics from the car." The sniff test took place while Klever, who was handcuffed, watched from beside Deputy Strand's vehicle.

Deputy Strand then asked Klever again for his consent to search the truck, and this time Klever said yes. Klever also informed the officers that they would find about a quarter ounce of methamphetamine in the tool box in his truck. Consistent with Klever's representation, the officers found what appeared to be methamphetamine, as well as a digital scale and "baggies," in a black bag in a tool box in Klever's truck.

Klever was charged with possession of methamphetamine with the intent to distribute in violation of RCW 69.50.401(1) and (2)(b). He subsequently filed a motion to suppress pursuant to CrR 3.6. In his motion, Klever argued, among other things, that Deputy Strand had unlawfully seized him when Deputy Strand asked him to identify himself and whether his license was still suspended.

The court scheduled an evidentiary hearing in accordance with CrR 3.6(b). At the hearing, Deputy Strand was the only witness who testified. When asked on direct examination to describe his conversation with Klever, Deputy Strand testified,

So I asked him, hey, you know, hey, who you? And he's like, oh, I'm Paul Klever and I then asked him, hey, is your license still suspended? And he said it was and I hadn't verified it in the last, you know, I knew of him to be suspended and, um, in the past but I hadn't verified it recently.

Then, on cross-examination, when asked how he knew Klever, Deputy Strand responded,

Ah, well, I've - Deputy Weatherby and I have contacted him on traffic stops and arrested him for DWLS third. Earlier in the year I had been involved with a - he allowed us to search his car and we referred for narcotics out of his car. He is just known to us. He is one of our people that we have a lot of contacts with, um, of where he was living at the time, um, with his son, um, so he is just very well known to law enforcement.

Deputy Strand was not asked, and did not indicate, how or when he learned that Klever's driver's license had been suspended.

At the conclusion of the hearing, the trial court denied Klever's motion to suppress and directed the State to prepare a written ruling. The trial court subsequently entered the following findings of fact, conclusions of law, and order:

I. FINDINGS OF FACT

1. Deputy Strand testified that he followed the Defendant's vehicle into an abandoned parking lot because, based on his training and experience, he believed it was an unusual behavior. At no time were the emergency lights or sirens activated on the deputy's vehicle.

2. Deputy Strand did not block the Defendant's vehicle from leaving and parked his vehicle at a distance from the Defendant's.

3. Only upon approaching the vehicle did the deputy recognize the Defendant from prior contacts. He immediately learned from the Defendant that he [was] driving on a suspended license, which he confirmed through dispatch.

4. Defendant was placed under arrest for driving on a suspended license in the third degree.

5. Within five minutes of the arrest a K9 officer arrived on scene. Under the circumstances this brief passage of time was not excessive.

II. CONCLUSIONS OF LAW

1. Deputy Strand did not perform a traffic stop on Defendant's vehicle.

2. Deputy Strand's initial contact with the Defendant was a social contact. He was not seized prior to arrest.

3. The passage of time between the Defendant's arrest and arrival of the K9 officer was not unreasonable and so excessive that this became an unlawful seizure.

ORDER

It is hereby ordered, adjudged, and decreed that Defendant's Motion to Suppress Evidence Pursuant to CrR 3.6 is DENIED.

Klever's attorney approved the written ruling "as to form" and did not request any different or additional findings.

The case then proceeded to trial. Relevant to Klever's public trial argument here, the trial court conducted five separate sidebars during jury selection-none of which was recorded or transcribed. In the absence of any such contemporaneous memorialization, the report of proceedings indicates with regard to each sidebar: "(Sidebar was had.)"

Later in the proceeding, the trial court appears to have memorialized one of the sidebars. The court stated:

Oh, let me just, I want to make a record. I have this peremptory challenge log, which I've dated and signed so I'm going to have that filed as a part of the record to reflect the challenges that were made. I will add for our record here that as to the alternates the parties, the alternate was first identified as Juror No. 27, the parties were each given an opportunity to pose an additional objection to that particular juror. Neither party chose to make an objection or make a challenge.

Then we, after it was pointed out by madam clerk that the numbering was off, we identified Juror No. 26 instead as the alternate juror and each party, again, was given an opportunity to propose a challenge to that particular juror and neither party made a challenge to that juror.

All right. Anything, any further supplementing of the record that needs to be done?

Both attorneys responded no Klever was convicted of possession of a controlled substance with intent to distribute and sentenced to 20 months confinement as well as 20 months in community custody. His sentence included a $500 VPA and community custody fees. This timely appeal followed.

II

A. Motion to Suppress

Klever argues that the trial court erred in denying his motion to suppress the evidence found in his truck on the evening of his arrest. We disagree.

Article I, section 7 of the Washington Constitution provides, "No person shall be disturbed in his private affairs, or his home invaded, without authority of law." "'[A] seizure occurs, under article I, section 7, when considering all the circumstances, an individual's freedom of movement is restrained and the individual would not believe [they are] free to leave or decline a request due to an officer's use of force or display of authority.'" State v. Sum, 199 Wn.2d 627, 636, 511 P.3d 92 (2022) (quoting State v. Rankin, 151 Wn.2d 689, 695, 92 P.3d 202 (2004)). "'This determination is made by objectively looking at the actions of the law enforcement officer.'" Id. (citing Rankin, 151 Wn.2d at 695).

"Whether police have seized a person is a mixed question of law and fact." State v. Harrington, 167 Wn.2d 656, 662, 222 P.3d 92 (2009). "A trial court's conclusions of law on a motion to suppress evidence are reviewed de novo," and any "[u]nchallenged findings of fact are treated as verities on appeal." State v. Valdez, 167 Wn.2d 761, 767, 224 P.3d 751 (2009). Because we are reviewing a claim of unlawful seizure, we must first determine whether and when Klever was seized. State v. Johnson, 8 Wn.App. 2d 728, 737, 440 P.3d 1032 (2019). As the defendant, Klever bears the burden of proving that a seizure occurred. Id.

Klever assigns error to the trial court's conclusion that "Deputy Strand's initial contact with the...