State v. Rose

175 Wash.2d 10

282 P.3d 1087

STATE of Washington, Respondent,

v.Douglas Craig ROSE, Petitioner.

No. 85791–1.

Supreme Court of Washington, En Banc.

Argued March 13, 2012.

Decided Aug. 9, 2012.

Nancy P. Collins, Erin Lindsay Calkins, Washington Appellate Project, Seattle, WA, for Petitioner.

Megan Ann Killgore, Attorney at Law, Kennewick, WA, for Respondent.

STEPHENS, J.

[175 Wash.2d 12]¶ 1 Douglas Rose challenges his convictions for unlawful possession of a stolen access device and unlawful possession of a controlled substance. We must decide if a credit card Rose possessed is an “access device” for purposes of RCW 9A.56.010(1). We must also decide whether Rose's arrest—leading to the search of his bag and discovery of the evidence against him—was supported by probable cause. We hold that under these facts, the State did not meet its burden to show that the card in question was an access device under RCW 9A.56.010(1). As to this question, we reverse the Court of Appeals. However, we uphold Rose's arrest on other grounds and affirm the Court of Appeals.

Facts and Procedural History

¶ 2 Richland police officer Tom Croskrey received a call that a possible residential burglary or trespass was in progress. Shortly thereafter, Officer Croskrey came upon Douglas Rose, who matched the description of the burglar. While waiting to hear about the outcome of the burglary call, the officer placed Rose in the back of his patrol car but soon learned the burglary report did not merit further action. However, as Croskrey detained Rose, he noticed a glass tube protruding from Rose's bag. Croskrey thought he could see a white chalky substance on the inside of the tube and thought the tube was consistent with a tool a person could use to ingest drugs. Officer Croskrey arrested Rose for possession of drug paraphernalia. He then searched Rose and found what appeared to be a credit card in the name of Ruth Georges. Rose's possession of the credit card led to a charge of second degree possession of stolen property, specifically a stolen “access device.” The white substance in the tube was later revealed to be methamphetamine, and Rose was also charged with unlawful possession of a controlled substance.

¶ 3 At a bench trial, evidence revealed that Rose had visited Georges in her home shortly before he was apprehendedby Croskrey. Prior to Rose's arrival, Georges had thrown away a credit card offer she received in the mail that day. The offer included a plastic credit card with an account number and Georges's name printed on it. Georges testified she did not have the $30 needed to activate the account, so she placed the card in an empty cigarette box and threw the box into the trash.

¶ 4 Rose was convicted of second degree possession of a stolen access device and possession of a controlled substance. Rose appealed his convictions, arguing that the credit card was merely an offer to open an account, not an access device. He also argued that his arrest was invalid because it was based on possession of drug paraphernalia, which is not a crime. Division Three of the Court of Appeals affirmed his convictions in a partially published decision. State v. Rose, 160 Wash.App. 29, 31, 246 P.3d 1277 (2011). In the published portion of the decision, the court held that the credit card was an access device. In the unpublished portion, the court held that while the arrest was not properly based on possession of drug paraphernalia, Croskrey nonetheless had probable cause to arrest Rose for possession of a controlled substance. Id. ¶¶ 32–35 (unpublished portion) (citing State v. Huff, 64 Wash.App. 641, 646, 826 P.2d 698 (1992) (noting that “an arrest supported by probable cause is not made unlawful by an officer's subjective reliance on, or verbal announcement of, an offense different from the one for which probable cause exists”), review denied119 Wash.2d 1007, 833 P.2d 387 (1992)). Rose petitioned this court for review, which we granted. State v. Rose, 172 Wash.2d 1014, 268 P.3d 942 (2011).

Analysis

¶ 5 We first consider whether Rose was properly convicted of second degree possession of a stolen access device when the device in question was an unactivated credit card not linked to an existing account. We then consider whether Officer Croskrey had probable cause to arrest Rose.

Was there sufficient evidence to convict Rose of possession of a stolen access device under RCW 9A.56.010(1)?

¶ 6 Rose was convicted under RCW 9A.56.160(1) of second degree possession of a stolen access device. An “access device” is

any card, plate, code, account number, or other means of account access that can be used alone or in conjunction with another access device to obtain money, goods, services, or anything else of value, or that can be used to initiate a transfer of funds, other than a transfer originated solely by paper instrument.

RCW 9A.56.010(1).

¶ 7 Rose claims the prosecution failed to prove the card was an access device because the card was not linked to an existing account. Pet'r's Suppl. Br. at 11. The crux of his argument is that the State failed to prove the card could “be used” to obtain something of value. This claim is properly regarded as a challenge to the sufficiency of the evidence.

¶ 8 Evidence is sufficient to support a finding of guilt if, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. State v. Engel, 166 Wash.2d 572, 576, 210 P.3d 1007 (2009). “When the sufficiency of the evidence is challenged in a criminal case, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant.” State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992) (citing State v. Partin, 88 Wash.2d 899, 906–07, 567 P.2d 1136 (1977)).

¶ 9 The evidence at trial revealed that Georges received a credit card solicitation in the mail from MasterCard. Included in the offer was an unactivated credit card. It looked like an actual credit card: it had an account number, an account holder name and expiration date printedon its face, and a signature block with a three digit security code on the back. But it was not tied to an existing account nor was it ever signed. The record reflects that Georges was required to call MasterCard and pay a $30 initiation fee to activate an account and use the card. She did not have the $30 fee, so she threw the card away. The record does not reflect whether there were any other hurdles to activating the account, for example, whether Georges was preapproved or whether any other information such as Georges's birth date or social security number, would have been required if a person called to activate the account. We must decide whether these facts support a finding that Rose possessed an access device when he possessed the card.

¶ 10 The State argues, and the Court of Appeals agreed, that the card could have been used to obtain something of value regardless of whether it was activated. See Resp't's Suppl. Br. at 15–18. In support of its contention, the State cites to State v. Clay, 144 Wash.App. 894, 184 P.3d 674 (2008). In Clay, the defendant was found with a Mervyns credit card belonging to Berna B. Llorico, which was signed with Llorico's name on the back. Id. at 896. At trial, Llorico testified that she had never seen the card, but maintained a single Mervyns account for a number of years, that her account number had changed, and that she had not received her new card. Id. Clay argued that the card could not “ ‘be used’ to obtain anything of value because it was never activated.” Id. at 897, 184 P.3d 674.

¶ 11 The Court of Appeals disagreed. It reasoned that “the statute [RCW 9A.56.010(1) ] does not require that the access device be activated.” Id. at 898, 184 P.3d 674.

While whether a card has been activated by its intended user may be relevant, this fact is not dispositive in determining whether it “can be used.” Companies that issue cards and merchants who accept them employ, to widely varying degrees, a variety of security measures, which may or may not include requiring a user to provide personal information in order to “activate” a card. A credit card may be an “access device” regardless of whether the intended user has activated the card, if the evidence supports a finding that the card could be used in the manner described by RCW 9A.56.010(1).

... Although Llorico testified that she had not activated the card, no evidence was offered that would prevent a rational juror from concluding that the card had been, or could be, activated by someone else or used without activation. As noted by the trial court, there was “no testimony that any additional steps needed to be taken to activate that card.”

Id. at 899, 184 P.3d 674. The State argues that this case is indistinguishable from Clay. Resp't's Suppl. Br. at 18.

¶ 12 The State also relies on State v. Schloredt, 97 Wash.App. 789, 987 P.2d 647 (1999) and State v. Chang, 147 Wash.App. 490, 195 P.3d 1008 (2008). In Schloredt, the defendant argued that the State was required to prove the stolen credit cards he possessed were not canceled by the owners after the theft. 97 Wash.App. at 793, 987 P.2d 647. He reasoned that if the cards were canceled following their theft, they could not “be used” in the present tense as the statute defining access device contemplates. Id. The Court of Appeals rejected his argument. “The clear legislative intent of the language ‘can be used’ in [former] RCW 9A.56.010(3) [ (1997) ] is a reference to the status of the access device when last in possession of its lawful owner.” Id. at 794, 987 P.2d 647. In Chang, the defendant was found with a number of stolen checks belonging to various individuals. 147 Wash.App. at 498–99, 195 P.3d 1008. The checks included the bank account numbers of the individuals. Id. The Court of Appeals thus considered whether the account numbers...