State v. Mejia

STATE OF WASHINGTON, Respondent, v. JESSE MEJIA, Appellant.

No. 72727-3-I

COURT OF APPEALS FOR THE STATE OF WASHINGTON DIVISION ONE

October 17, 2016

UNPUBLISHED OPINION

SPEARMAN, J. — After deputies from the Skagit County Sheriff's Office found automobiles in various states of dismemberment on the property where Jesse Mejia allegedly had been staying, Mejia was charged and convicted of four counts of possession of stolen motor vehicles. On appeal, Mejia argues that the search of the property was unlawful, because the deputies had neither valid permission nor authority of a valid warrant to enter the area surrounding a barn, look inside the barn through openings in the walls, search inside the barn or inside a nearby trailer. He also argues that the State failed to meet its burden of proving every element of the crimes charged and that the trial court abused its discretion by excluding two of his witnesses. We find no error and affirm the convictions but because the parties agree an error occurred in calculating Mejia's offender score, we remand for resentencing.

FACTS

William Everett rented a house on Douglas and Norma Rex's property, located at 17108 SR 20, Burlington, Washington. Along with the house, the property also included a barn with an attached shed, a plot of farmland, and a storage area for old silage. Everett kept a trailer and a couple of nonfunctioning cars on the property. His lease did not include use of the barn or the attached shed.

Everett had given Jesse Mejia permission to stay in his trailer for a couple of months. Soon Everett began to see more cars left on the property, including some that were "torn apart," and either missing bodies or parts. Verbatim Report of Proceedings (VRP) at 71. On November 12, 2013, the Skagit County Sheriff's Department received information about a stolen vehicle and a chop shop on SR 20 near Avon Allen Road. The informant told the sheriff there were two stolen Hondas and a stolen GMC van inside the barn and that Mejia had been chopping cars and grinding off the vehicle identification numbers (VIN).

Deputy Wilhonen contacted Rex before going to the property. Rex informed Deputy Wilhonen that William Everett was renting the property and that he may have friends staying there as well. Rex also indicated that "the barn was not part of the lease, there should not be anyone there, and it should also be empty of any cars or other items." Clerk's Papers (CP) at 40. It is undisputed that Everett also gave the deputies permission to come onto the property.

Deputy Wilhonen and Deputy Moses walked around the outside of the barn and looked at the cars on the cement area near the barn. The deputiesdiscovered a red Acura Integra that had been dismantled and taken apart. A check of the VIN indicated that it had been reported as stolen. The deputies could see other vehicles inside the barn by looking through holes in the walls. One of the vehicles near an opening, a 1992 Honda Accord, had been cut in half. The deputies were able to see the VIN on the firewall and discovered that the vehicle had been reported stolen. There was also a GMC Safari van visible from the outside. After recording and running the plate number, the deputies learned that it had also been reported stolen.

Deputy Wilhonen contacted Rex again and obtained his written permission to enter the barn. The following day, November 13, 2013, the deputies obtained a search warrant for the house, the barn, the attached shed, and the trailer. Inside the barn they found another vehicle, a 1990 Honda Accord, also reported as stolen. Inside the trailer they found identity documents for different persons, including Everett's driver's license, tax documents, and mail. Id. at 137-139.

Mejia was arrested and charged with four counts of possession of a stolen motor vehicle and one count of identity theft in the second degree. Mejia moved to suppress the evidence found in the trailer and inside and around the barn. By agreement of the parties, the trial court considered only the affidavit in support of the search warrant request and the briefs in support of and in opposition to the motion. The court found that Everett had the authority to consent, and did consent, to the deputies' initial entry onto the property. Thus, it found the deputies' presence on the property was lawful, and any observations made while on the property, including those obtained by peering through openings in theshed, were also lawful. As a result, the court concluded that the inclusion of those observations in the affidavit in support of the search warrant did not taint the warrant or the evidence obtained thereby. Accordingly, it denied Mejia's motion.¹

At trial, Mejia sought to offer additional witnesses after the first day of testimony to impeach and rebut Everett's testimony that his van had been stolen. The trial court instructed Mejia's counsel to provide the State with access to those witnesses. When two of the witnesses refused to speak with the State's attorney or provide information about their testimony, the State moved to exclude them. The trial court excluded the two witnesses because the State had not been given timely notice and declined to delay the trial further.

Mejia was found guilty on all four counts of possessing a stolen motor vehicle. The trial court granted Mejia's motion to dismiss the identity theft charge. At sentencing, the State calculated Mejia's offender score and submitted a statement of criminal history. Mejia was sentenced to 50 months of confinement.

DISCUSSION

When reviewing a trial court's denial of a suppression motion, we review findings of fact for substantial evidence. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). Substantial evidence exists where there is a sufficient quantity of evidence in the record to persuade a fair-minded, rational person of the truth ofthe finding. Id. Any unchallenged findings of fact are verities on appeal. State v. Homan, 181 Wn.2d 102, 105-06, 330 P.3d 182 (2014) (reversed and remanded, 141 Wn. App. 759, 364 P.3d 839 (2015)). We review conclusions of law de novo. Id.

Authority to Consent

Mejia argues that the deputies conducted an unlawful search when they entered the portions of the property near and around the barn and looked into the barn through the holes in the walls. He contends that the deputies were trespassing because they did not have the owner's consent before entering the area around the barn. Id. According to Mejia, the tenant had no authority to consent to a search of the barn or the area surrounding it. Thus, he argues that the observations of the vehicles in and around the barn were unlawfully obtained. He further argues that because the affidavit in support of the search warrant relied on this evidence to establish probable cause, the warrant that issued was tainted and any evidence seized pursuant to the warrant should have been suppressed.

It is well established that if information contained in an affidavit of probable cause was obtained by an unconstitutional search, that information may not be used to support the warrant. State v. Ross, 141 Wn.2d 304, 311, 4 P.3d 130 (2000). Article I, section 7 of the Washington Constitution provides that "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law." State v. Hendrickson, 129 Wn.2d 61, 70, 917 P.2d 563 (1996). Under this provision, the warrant requirement is especially important, as it is thewarrant that provides the requisite "'authority of law.'" State v. Ladson, 138 Wn.2d 343, 350, 979 P.2d 833 (1999) (quoting City of Seattle v. Mesiani, 110 Wn.2d 454, 457, 755 P.2d 775 (1988)). Exceptions to the warrant requirement are to be "'jealously and carefully drawn.'" State v. Reichenbach, 153 Wn.2d 126, 131, 101 P.3d 80 (2004) (quoting Hendrickson, 129 Wn.2d at 72). The burden of proof is on the State to show that a warrantless search or seizure falls within one of the exceptions to the warrant requirement. State v. Acrey, 148 Wn.2d 738, 746, 64 P.3d 594 (2003) (citing State v. Kinzy, 141 Wn.2d 373, 382, 5 P.3d 668 (2000)). Article I, section 7 of the Washington Constitution also provides greater protection of individual privacy than the Fourth Amendment. State v. Jackson, 150 Wn.2d 251, 259, 76 P.3d 217 (2003).

Consent to search is a recognized exception to the warrant requirement. State v. Thompson, 151 Wn.2d 793, 803, 92 P.3d 228 (2004) (citing State v. Walker, 136 Wn.2d 678, 682, 965 P.2d 1079 (1988)). It is the State's burden to establish that consent was lawfully given. Id. The State must show that (1) the consent was voluntary, (2) the person consenting had the authority to consent, and (3) the search must not exceed the scope of the consent.² Id. Mejia does not dispute that Everett had authority to permit the deputies to enter the property and search the residence, but he claims that the barn and its surrounding area were beyond the scope of that authority. He provides no basis for this restriction otherthan the fact that Everett did not have access to the barn or the shed. The trial court found that the area around the barn was within Everett's consent because "there is no indication that he was limited in his access to the land outside the barn." CP at 9. Mejia cites nothing in the record that disputes this finding. We agree with the trial court that Everett's consent to search the property included the areas around the barn.

Mejia next argues that the deputies exceeded the scope of the consent when they looked inside the barn through holes in the walls. He contends that the officers were required to get Rex's consent prior to looking inside the barn, and they failed to do so. We disagree. United States v. Hufford, 539 F.2d 32 (1976) (cert. denied, 429 U.S. 1002, 97 S. Ct. 533, 50 L. Ed. 2d 614 (1976), overruled in part on other grounds by U.S. v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012)) and State v. Bobic, 140 Wn.2d 250, 996 P.2d 610 (2000) are...