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Washington v. Hendrickson

filed: May 9, 1996; As Amended May 29, 1996.

STATE OF WASHINGTON, RESPONDENT,
v.
MICHAEL W. HENDRICKSON, PETITIONER.



Appeal from Superior Court, Wahkiakum (92-1-00002-0) County; Honorable Joel Penoyar, Judge. Judgment Date: 8-17-92.

Talmadge, J., Durham, C.j., Dolliver, Smith, Guy, Johnson, Madsen, Alexander, J.j., Pekelis, J.p.t., concurring. Sanders, J. (did not participate)

Author: Talmadge

En Banc

TALMADGE, J. -- Michael Hendrickson, who was on work release, was arrested for selling cocaine to a fellow inmate at a location frequented by Wahkiakum County Jail inmates. Hendrickson's truck was impounded. Several days later, acting on an anonymous tip, police conducted a warrantless search of the truck and found cocaine in the vent of an audio speaker.

We are asked in this case to determine if a warrantless search of an impounded vehicle based on an anonymous tip violated Hendrickson's constitutional rights. We are also asked to determine if Hendrickson was denied effective assistance of counsel and whether a defendant's enhanced sentence for a drug transaction occurring in a jail facility meets the terms of the statute and complies with constitutional standards.

We affirm Hendrickson's conviction and enhanced sentence for delivery of cocaine in a jail facility. But we hold that the warrantless search of his truck was improper and reverse the Court of Appeals, remanding the case to the trial court for further proceedings consistent with this opinion on the charge of possession with intent to deliver.

ISSUES

1. Should the trial court have suppressed the evidence recovered during the warrantless search of Hendrickson's truck?

2. Did Hendrickson's trial counsel's failure to object to the presentation of evidence of his prior drug convictions deny Hendrickson his right to effective assistance of counsel?

3. Was Hendrickson's enhanced sentence for delivering drugs in a jail under RCW 9.94A.310(4) proper?

FACTS

Petitioner Michael W. Hendrickson was an inmate of the Wahkiakum County Jail in February 1992, serving a sentence for manufacturing marijuana. He was then participating in the work release program. When not in jail, he worked in a shop adjacent to his home in Cathlamet five days a week. While on work release, Hendrickson used his 1966 Ford pickup truck to commute between his shop and the Wahkiakum County Jail.

In order to participate in the work release program, Hendrickson was required to execute a document entitled Wahkiakum County Rules for Work Release Program. He executed the document on October 29, 1991, in the presence of a witness, Wahkiakum County Chief Deputy Sheriff Dan L. Bardsley. Bardsley testified that he and Hendrickson signed the document. Bardsley also testified that he both discussed the rules with Hendrickson and read them to him on the day Hendrickson signed the document.

Hendrickson had no questions and stated he understood the rules. The key provisions of the work release rules are the following:

5. All releasees are subject to search of their person and possessions prior to entering or leaving the Work Release Facility. You will check in and out through the jailer on duty or the designated individual responsible.

6. All releasees are subject to legally accepted chemical and physiological tests for determination of alcohol and/or drug consumption. Also releasees are subject to search of their person, personal possessions, vehicles used in going to and from work, and any area used or controlled by work release, at any time deemed necessary by the work release director.

Clerk's Papers at 12.

Some time in early February 1992, Hendrickson offered to sell cocaine to fellow inmate Allen Pierce, according to Pierce's testimony. Pierce informed law enforcement personnel of Hendrickson's proposal. He agreed to participate in a controlled buy in return for release from jail and a bus ticket home. Hendrickson told Pierce he would package the cocaine and leave it under the ash can just outside the Wahkiakum County Courthouse where prisoners routinely went for smoking breaks.

On February 15, 1992, Hendrickson returned to the jail after a day of work at his home workshop. He told Pierce he had left the cocaine under the ash can as planned, and Pierce gave him the buy money, which the police had photocopied. Two deputies took Pierce outside to the inmates' smoking area and retrieved a packet of cocaine from under the ash can. The deputies then searched Hendrickson and found in his pants pocket the $100 of U.S. currency they had previously photocopied and given to Pierce. The Wahkiakum County Sheriff's office then requested that agents of the Cowlitz-Wahkiakum Narcotics Task Force come to the jail to take Hendrickson into custody.

Two detectives from the Task Force came to Cathlamet,

and informed Hendrickson that he was under arrest for delivering cocaine. The detectives advised him they were seizing his truck because it had been used to transport the cocaine to the jail. The detectives then performed a brief, warrantless, inventory search of the truck, but found nothing of interest. They seized the truck and it remained in the custody of the Wahkiakum County Sheriff, parked in the parking lot of the jail.

Hendrickson was transferred from the Wahkiakum County Jail to the Cowlitz County Jail that same evening. Although no official action occurred to terminate Hendrickson's participation in the work release program, he was not allowed to travel to his job site after his arrest on February 15. The trial court subsequently found he was not on work release after February 15.

Some time after Hendrickson's arrest on February 15 (the record is silent as to when), the Wahkiakum County Sheriff's office received a tip from an anonymous informant that an additional package of cocaine was hidden inside a speaker vent in Hendrickson's truck. Because of this tip, and in reliance on Hendrickson's signed consent for search of his vehicle, two deputies conducted a warrantless search of the truck on February 19, 1992, in the parking lot of the jail. The truck was not in an impound yard. They located one-half ounce of cocaine, packaged the same way as the cocaine Hendrickson had delivered to the jail smoking area on February 15. They also located a film canister covered in camouflage fabric. The items recovered from the truck's speaker vent were not readily visible to the deputies. They were able to find them only because of the tip.

Based on the evidence seized from Hendrickson's truck, officers obtained a warrant the very next day to search the home workshop Hendrickson used during the work release program. Officers conducted the search on February 20. The search revealed no additional drugs, but yielded a piece of clothing from which Hendrickson's cocaine packaging material could have been cut, and some

camouflage print fabric identical to the fabric found on the film canister in Hendrickson's truck.

Hendrickson was charged by amended information with a count of delivering a controlled substance, stemming from his actions on February 15, 1992, and a second count for possessing a controlled substance with intent to deliver, based on the discovery of the cocaine in his truck on February 19, 1992. The delivery charge was subject to a sentence enhancement under RCW 9.94A.310(5) because delivery was made in a county jail. The charges were subject to an additional enhancement because of Hendrickson's prior drug-related convictions.

Hendrickson moved before trial to suppress the evidence gathered on February 19 and subsequently, claiming the search of his truck violated his privacy rights under both the state and federal constitutions. The trial court denied the motion, and made findings of fact and conclusions of law. Neither the State nor Hendrickson has assigned error to any of the trial court's findings of fact.

During his jury trial, Hendrickson testified on his own behalf, and denied everything. His basic defense was that Pierce had set him up in order to obtain his own release. During the presentation of the State's case, before Hendrickson testified, the State introduced into evidence the "Judgment and Sentence" documents from Hendrickson's January 1990 conviction for possession of methamphetamine and his October 1991 conviction for manufacturing marijuana. Hendrickson's trial counsel did not object to the admission of those documents into evidence.

Hendrickson was found guilty on both the delivery and possession charges. By special verdict, the jury found that the delivery had occurred within a county jail, and that Hendrickson had prior drug-related convictions. Hendrickson's trial counsel did not object to allowing the jury to consider Hendrickson's prior drug convictions in the special verdict. The trial court sentenced him to a term of 110 months on the delivery charge and 102 months on the possession charge, including enhancements, with the sentences to run concurrently.

Hendrickson appealed, assigning error to: the trial court's failure to suppress evidence of the Cocaine found in his truck, his trial counsel's failure to object to the introduction of his prior drug-related convictions, thereby denying him effective assistance of counsel, and the trial court's imposition of a sentence enhancement under RCW 9.94A.310(5). The Court of Appeals, in an unpublished opinion, rejected all of Hendrickson's contentions, and affirmed the sentence. Hendrickson sought review of all the issues before the Court of Appeals, and we accepted review.

ANALYSIS

A. THE WARRANTLESS SEARCH

The police here conducted a warrantless search of Hendrickson's truck four days after his arrest for delivery of cocaine in the county jail, and four days after his truck had been seized pursuant to civil forfeiture procedures. The search resulted in the discovery of cocaine hidden in the speaker vent of the vehicle. Hendrickson was charged with possession with intent to deliver, a new and separate crime from the one for which he was arrested on February 15. Hendrickson challenges the constitutional propriety of the warrantless search, and of his subsequent conviction based on evidence discovered during that search.

As Hendrickson has claimed a violation of his rights under both the Fourth Amendment to the United States Constitution and art. I, ยง 7 of the Washington Constitution, we will first analyze the alleged violation of the ...


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