State v. Morrison, No. 24070-3-III (Wash. App. 7/18/2006)

Page 1

Unpublished Opinion

STATE OF WASHINGTON, Respondent, v. NORMAN CLARK MORRISON, Appellant.

No. 24070-3-III

Court of Appeals of Washington, Division Three.

Filed: July 18, 2006

Appeal from Superior Court of Kittitas County. Docket No: 05-1-00028-6. Judgment or order under review. Date filed: 04/25/2005. Judge signing: Hon. Michael E Cooper.

Counsel for Appellant(s), Dennis W. Morgan, Attorney at Law, 120 W Main Ave, Ritzville, WA 99169-1408.

Counsel for Respondent(s), Mark D McClain, Kittitas County Prosecutors Office, 205 W 5th Ave Ste 213, Ellensburg, WA 98926-2887.

Paul Robert Sander, Kittitas County Prosecutor's Office, 205 W 5th Ave Ste 213, Ellensburg, WA 98926-2887.

KATO, J.

Norman Morrison was convicted of attempting to manufacture methamphetamine and possession of methamphetamine. Claiming the court erroneously denied his motion to suppress, he was unlawfully arrested, the prosecutor committed misconduct, and he was denied effective assistance of counsel, he appeals. He also contends the evidence was insufficient to support his conviction for attempting to manufacture methamphetamine. We affirm his conviction for attempted manufacture, but reverse his conviction for possession.

On January 14, 2005, Kittitas County Deputy Sheriff Dan Kivi received a call regarding suspicious vehicles on Teanaway River Road in the Teanaway Campground area. He stopped a car leaving the area and contacted the driver, Amanda Opey. She had just dropped Mr. Morrison off at the campground.

Deputy Kivi proceeded to the campground and noticed a large sign stating the campground was closed. He entered the campground and saw a fifth wheel, travel trailer, and a black truck. He contacted Mr. Morrison, who said the fifth wheel was his, the truck was registered to his girlfriend, Kelly Ralston, and the travel trailer belonged to Allen Chapman. Mr. Morrison was living in his fifth wheel and was also responsible for the travel trailer.

Deputy Kivi told Mr. Morrison the campground was closed. He said he knew that, but he had permission to be there until the truck was fixed. He later said, however, that he had been told to leave the area a few days earlier.

Deputy Kivi was unable to find any identifying numbers on the travel trailer. He asked Mr. Morrison to go into the trailer to see if he could find any paperwork establishing ownership. The door to the trailer was open and he saw drug paraphernalia on a table. When Mr. Morrison came out, the deputy asked what the items on the table were. Mr. Morrison replied it looked like drug paraphernalia.

Corporal Sean Hillemann also responded and saw drug paraphernalia inside the travel trailer. He arrested Mr. Morrison for possession of drug paraphernalia and conducted a pat down search incident to arrest. He found a small glass vial containing a powdery substance, seven AA lithium batteries wrapped in black electrical tape, and coffee filters.

The two officers also saw a number of propane tanks, plastic tubing, and an electrical generator around the campsite. One of the propane tanks had the top cut off and appeared to have been in a fire. It smelled like cat urine. Another had a stainless steel fitting. A third tank was found with a blue fitting and covered with a black garbage bag. The fitting suggested the tank had been used to store anhydrous ammonia. The police suspected a methamphetamine lab.

The State charged Mr. Morrison with manufacturing methamphetamine, unlawful storage of anhydrous ammonia, possession of methamphetamine, and possession of drug paraphernalia. The State later amended the information to add accomplice liability on the manufacturing methamphetamine charge.

Mr. Morrison filed a motion to suppress the evidence. He claimed the campsite was private property and the officers had no authority to conduct a search on the property without a warrant. The court denied the motion and issued oral findings of fact and conclusions of law. No written findings were entered.

At trial, Officer Koss of the Ellensburg Police Department testified he had contacted Mr. Morrison at a Rite Aid store in December 2004. Mr. Morrison was buying Sudafed cold tablets and told the officer he intended to give the tablets to a third party so they could manufacture methamphetamine. He stated he would be given some of the methamphetamine in return.

A jury convicted Mr. Morrison of possession of methamphetamine and attempting to manufacture methamphetamine. This appeal follows.

Mr. Morrison first challenges the court's failure to enter findings of fact and conclusions of law under CrR 3.6(b). But this failure is harmless if the record of the court's oral decision is sufficient to permit appellate review. State v. Radka, 120 Wn. App. 43, 48, 83 P.3d 1038 (2004); State v. Cunningham, 116 Wn. App. 219, 226, 65 P.3d 325 (2003). The court's oral ruling here is sufficient.

Mr. Morrison next claims the deputy lacked probable cause to arrest him for possession of drug paraphernalia so the subsequently gathered evidence should have been suppressed. `Probable cause exists where the facts and circumstances within the arresting officer's knowledge and of which the officer has reasonably trustworthy information are sufficient to warrant a person of reasonable caution in a belief that an offense has been committed.' State v. Terrovona, 105 Wn.2d 632, 643, 716 P.2d 295 (1986). The police arrested Mr. Morrison for possession of drug paraphernalia. But mere possession of drug paraphernalia is not a crime and cannot be the basis for an arrest. State v. McKenna, 91 Wn. App. 554, 563, 958 P.2d 1017 (1998); State v. Lowrimore, 67 Wn. App. 949, 959, 841 P.2d 779 (1992); see also State v. O'Neill, 148 Wn.2d 564, 584 n.8, 62 P.3d 489 (2003). Using the paraphernalia to ingest drugs is a misdemeanor. RCW 69.50.412. A police officer, however, cannot arrest for a misdemeanor unless the arrestee commits that crime in the officer's presence. RCW 10.31.100; O'Neill, 148 Wn.2d at 584 n.8.

The officers did not observe Mr. Morrison use the paraphernalia. See RCW 69.50.412; O'Neill, 148 Wn.2d at 584 n.8; McKenna, 91 Wn. App. at 563. The timing and location of the defendant, behavior of the defendant, and location of the paraphernalia are factors to consider when determining if a reasonable inference exists to suggest the paraphernalia was used. See State v. Neeley, 113 Wn. App. 100, 108, 52 P.3d 539 (2002). There is nothing in the record to indicate Mr. Morrison had used the paraphernalia. Probable cause to arrest him for use of drug paraphernalia did not exist. Because the arrest was not valid, the search of Mr. Morrison was illegal and the items found on his person should have been suppressed. O'Neil, 148 Wn.2d at 585.

Mr. Morrison further claims the seizure of the five gallon bucket was unlawful because it was not in open view. `Under the `open view' doctrine, detection by an officer who is lawfully present at the vantage point and able to detect something by utilization of one or more of his senses does not constitute a search within the meaning of the Fourth Amendment.' State v. Ross, 141 Wn.2d 304, 313, 4 P.3d 130 (2000) (citing State v. Seagull, 95 Wn.2d 898, 901, 632 P.2d 44 (1981)). If the police have legitimate business, they may enter areas of the curtilage which are impliedly open, such as access routes to the house. Id.

Mr. Morrison concedes the officers were lawfully at the campsite. He nonetheless argues that because the bucket was under a tarpaulin, it was not in open view and thus not properly seized. He did not raise this argument at the suppression hearing. A newly raised argument will not be reviewed `where the facts necessary for its adjudication are not in the record and therefore where the error is not `manifest.'' State v. Riley, 121 Wn.2d 22, 31, 846 P.2d 1365 (1993). Because Mr. Morrison did not make this argument below, few details surrounding the discovery of the bucket were developed. Consequently, the record is insufficient to review the issue for the first time on appeal and the alleged error is not manifest.

Mr. Morrison argues the prosecutor committed misconduct during his closing argument. To prevail on a claim of prosecutorial misconduct, the defendant must establish the impropriety of the conduct and a substantial likelihood the misconduct affected the verdict. State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995), cert. denied, 516 U.S. 1121 (1996). Reversal is not required if the defendant did not request a curative instruction that would have obviated the error. State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995).

Failure to object to an improper remark constitutes a waiver of the error unless the remark is so flagrant and ill intentioned that it resulted in prejudice which could not have been neutralized by an instruction. Id. at 86. Only if there is a substantial likelihood the misconduct affected the verdict must a conviction be reversed. Id.

Mr. Morrison first claims the prosecutor stated he was guilty of manufacturing methamphetamine because he brought anhydrous ammonia to the campsite. But that is not an accurate reflection of the State's argument. The prosecutor stated:

So now I think what we do is we have got these elements and the way lawyers say let's give meaning to what these words mean, what does manufacture mean? And it specifically means production, preparation, propagation, compounding, converting, processing either directly or indirectly or packing or repacking a controlled substance. Preparing to manufacture methamphetamine is manufacturing methamphetamine. When you bring the ingredients to some place to manufacture methamphetamine you commit the crime of manufacturing methamphetamine. When he brought the anhydrous ammonia to the scene with the purpose of manufacturing methamphetamine, he committed the crime. It is that simple.

2 Report of Proceedings (April 6, 2005) at 180. The prosecutor argued the facts...