State v. Stewart

1

STATE OF WASHINGTON, Respondent, v. NICOLETTE JACQUELYN STEWART, Appellant.

No. 83533-5-I

Court of Appeals of Washington, Division 1

April 10, 2023

UNPUBLISHED OPINION

Hazelrigg, A.C.J.

The trial court denied in part Nicolette Difillipo's^[1]pretrial motion to suppress statements under CrR 3.5, ruling that, while her detention was unlawful statements she made to police after their discovery of a warrant for her arrest were admissible. She was convicted of possession of a stolen motor vehicle after a jury trial wherein the State relied on those statements in closing argument. Difillipo assigns error to the portion of the CrR 3.5 ruling denying suppression and further argues it was not harmless beyond a reasonable doubt. We agree on both points and, therefore, reverse the conviction and remand for suppression of the statements.

FACTS

On the morning of June 9, 2019, while driving through Fife Washington, Jeff Betterley was waved down by two individuals who "looked familiar" and "seemed to be acquaintances from the casino." As the two individuals were stranded, Betterley agreed to take them to their destination, which was not far from his home. Betterley testified that they told him their names were Rick and Nicolette.^[2]

Once they arrived at the initial destination, Nicolette Difillipo and Rick Sams were unable to contact their friends; Betterley waited for about 30 minutes, then drove them to Little Creek Casino to see if their friends were there. As they did not find their friends at the casino, Betterley drove them to a trailer park in Chehalis where Difillipo's friend lived. Betterley waited at the park "for quite a while" and eventually went back to his car to relax. Betterley fell asleep in the passenger seat of his vehicle and awoke to Sams driving it down a dirt road. Difillipo was not in the car and Sams explained that he was searching for her. They found Difillipo in the Lucky Eagle Casino parking lot, which was near the trailer park.

Difillipo and Sams began to fight in the parking lot and Sams stormed off, leaving Betterley with Difillipo. Difillipo asked if she could "take a moment in the car" to "compose herself" and Betterley agreed. Betterley gave Difillipo the car key to get into the vehicle, but he kept the key fob so she could not drive it. Betterley later testified at trial that his car, a black 2015 Kia Optima, could only start if the fob was inside the car and, so long as it was, one could simply push the ignition button and the car would start.

Betterley went into the casino and found Sams; Difillipo joined them inside later. Betterley testified that it appeared as if "everything had been resolved." Difillipo said that her friends were only a few minutes away; Betterley was planning to leave, but he went to give his number to someone before departing. When Betterley returned to where he had last seen Difillipo and Sams, they were gone. Betterley then went to the parking garage and discovered that his car was gone as well. He also realized that Difillipo had kept his car key and that the key fob was missing from his pocket. Betterley informed casino security, who called Chehalis tribal police. Betterley provided a statement to police reporting his car was stolen.

A few weeks later, on June 27, Officer Sean Absher of the Snoqualmie Police Department (SPD) observed Sams sitting in the driver's seat of a black Kia Optima parked near the Nike Outlet store in the North Bend Outlet Mall. As the vehicle had tinted windows and no license plate, Absher suspected it may have been stolen. Absher observed Sams exit the vehicle and walk towards the mall until he was out of sight. To assist in his investigation, Absher called for additional officers. He then briefly observed Difillipo walking past the Nike Outlet store alone.

Absher ran the vehicle identification number (VIN) from the Kia and discovered that the car had been reported stolen.

When SPD Sergeant Daniel Moate and Officer Dimitry Vladis^[3] arrived on the scene, they contacted Sams and Difillipo while Absher observed from a distance. Vladis separated Difillipo from Sams to speak with her while Moate questioned Sams. Vladis radioed dispatch that both suspects were detained, and Absher later wrote in his report that the subjects were detained at this time. After seizing Difillipo Vladis testified that he "asked for her name, and ran her name through dispatch." During the detention, Difillipo initially told officers that she was not aware of the Kia and that she was staying at a motel nearby. Officers then received information from dispatch that there was an active warrant for Difillipo's arrest. Shortly after that, officers learned that Department of Licensing (DOL) records showed that the vehicle was registered in her name. At this point, Moate placed Difillipo under arrest and read her Miranda^[4] rights.

After the formal arrest on the warrant, Moate confronted Difillipo with the DOL information and asked why she had previously denied any knowledge of the vehicle. In response, Difillipo said that she had purchased the Kia through Craigslist and thought it was at her home in Tacoma, claiming that she was unaware Sams had the vehicle that day. After Betterley gave officers permission to search the Kia, Moate and Vladis found a hand-written bill of sale and release of interest form, but, on the documents, Betterley's name was misspelled and his purported signature did not match the signature on his vehicle registration.

On September 30, 2019, the State charged Difillipo with one count of possession of a stolen vehicle. On October 29, 2021, Difillipo filed a motion to suppress the statements she made to the officers pursuant to her detention, arguing they were subject to the exclusionary rule as fruit of an unlawful seizure. After the suppression hearing, the trial court granted the motion to suppress in part: "Because Ms. Difillipo's claim that she had no knowledge of the stolen vehicle came during a suspicionless seizure prior to officers discovering a valid warrant for her arrest, this statement is fruit of the poisonous tree and must be suppressed." However, the trial court denied the motion to the extent that Difillipo also sought to suppress her post-Miranda statements: "Ms. Difillipo's subsequent statements came in response to being confronted with information from DOL after officers had arrested her pursuant to a valid arrest warrant. Because this intervening event sufficiently purged the taint of the illegality of her initial detention, her post-arrest statements may be admitted at trial." The court considered the motion under the attenuation doctrine, citing State v Eserjose^[5] in its written findings of fact and conclusions of law from the hearing. The case proceeded to trial and the jury convicted Difillipo as charged. Difillipo timely appealed.

ANALYSIS

I. Partial Denial of Motion to Suppress

Difillipo assigns error to the portion of the trial court's decision that admitted her post-arrest statements, and further challenges conclusions of law (CL) 7 and 8 that she contends are inconsistent with our state attenuation doctrine. The State argues the statements are admissible pursuant to the independent source doctrine and asserts that it is "unnecessary to separately analyze attenuation doctrine."^[6]Accordingly, we are tasked with reviewing the trial court's conclusions of law, in addition to its ultimate ruling on the evidentiary issue. The defense presented the CrR 3.5 motion to suppress under the framework of attenuation. The trial court decided the matter under that doctrine, expressly citing to Eserjose, so that is the test we will utilize in our consideration of the propriety of that ruling.

When reviewing a suppression ruling, this court accepts the trial court's unchallenged findings of fact as verities. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). To determine whether those undisputed facts amount to a violation of article I, section 7 of the state constitution, which is a question of law, this court engages in de novo review. State v. Rankin, 151 Wn.2d 689, 694, 92 P.3d 202 (2004). As Difillipo has not assigned error to any finding, we accept the trial court's findings of fact as verities^[7] and our review is "limited to a de novo determination of whether the trial court derived proper conclusions of law from those findings." State v. Armenta, 134 Wn.2d 1, 9, 948 P.2d 1280 (1997). Further, given the procedural posture of this appeal, it is axiomatic that we constrain our consideration to only the information available to the court at the time of the CrR 3.5 hearing. See State v. Dunn, 186 Wn.App. 889, 896, 348 P.3d 791 (2015); See also State v. Taylor, 18 Wn.App. 2d 568, 578, 490 P.3d 263 (2021).

The State argues in briefing that this court can determine that the initial detention of Difillipo by SPD was lawful and further provides argument on the Terry^[8] standard.^[9] However, such an inquiry is beyond the scope of the assignments of error, and the State has not cross appealed the court's CrR 3.5 ruling or any of the accompanying findings of fact and conclusions of law. RAP 10.3(b), (g). Thus, the trial court's determination that Difillipo was unlawfully seized will not be disturbed.^[10] "It is well-established that article I, section 7 provides greater protection of privacy rights than the Fourth Amendment." State v. Winterstein, 167 Wn.2d 620, 631, 220 P.3d 1226 (2009). While the Fourth Amendment to the United States Constitution ensures protection against "unreasonable searches and seizures," article I, section 7 of the Washington State Constitution guarantees that "[n]o person shall be disturbed in his private affairs . . . without authority of law." The language of article I, section 7 ...