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State v. Smith

October 7, 1996

STATE OF WASHINGTON, RESPONDENT,
v.
SHAWN O. SMITH APPELLANT.



Appeal from Superior Court of Snohomish County. Docket No: 94-1-01164-7. Date filed: 01/31/95. Judge signing: Hon. Paul D. Hansen.

PER CURIAM. Shawn O. Smith appeals from his conviction for second degree possession of stolen property. Prior to trial, he moved to exclude certain statements and evidence under CrR 3.5 and 3.6. He argues that the trial court erred in refusing to suppress the fruits of an unlawful search of his vehicle. He also maintains that the deputy prosecutor committed reversible misconduct during closing argument by vouching for the credibility of the State's witnesses. Because the search of Smith's van was incident to a lawful arrest and the deputy prosecutor's closing arguments, viewed in context, did not convey a personal opinion about the witnesses' credibility, we affirm.

In August 1994, Snohomish County Deputy Sheriff Kenneth Christensen was advised by dispatch to call Don Trobee. Trobee informed Deputy Christensen that two men had attempted to sell him a hydraulic pump that had been stolen from Greenshield's Industrial Supply. Trobee reported that the two men had just left his house in a green Dodge van with a broken-out rear window and might be driving to Granite Falls. Trobee identified one of the men as appellant Smith and characterized him as a "volatile person."

After confirming with Greenshield's that a hydraulic pump was missing, Deputy Christensen drove toward Granite Falls. At one point he observed a van matching Trobee's description, but soon lost contact. Deputy Christensen then requested backup assistance from Sergeant Matthew Bottin and drove toward the Trobee residence.

While responding to the call, Sergeant Bottin also spoke with Trobee by telephone and learned that the van had returned to his residence.

Trobee indicated that he had just seen the stolen pump in the back of the van, covered by a blanket. A short time later, Sergeant Bottin spoke with Trobee's wife, who expressed fear "that everybody was getting worked up."

Upon arriving at Trobee's residence, the officers saw the van with a broken window parked in the driveway. Smith, Trobee, and a third man, Ken Barnett, were "milling around in the area." The officers immediately exited their vehicles with drawn weapons, ordered all three individuals back to the police cars, and handcuffed them. Smith and Barnett were placed in separate cars; Trobee was released a short time later.

After being advised of his Miranda rights, Smith expressed a willingness to talk to the officers and orally waived his rights. Smith told Sergeant Bottin that he was going "to cop to the PSP" and that he had been the "wheelman." He denied stealing the pump and claimed that he had been given it to sell. Smith also signed a waiver and provided a written statement. When Deputy Christensen discovered that the van was not registered to Smith, Smith explained that he was in the process of buying it. After signing the written waiver, Smith signed a "Voluntary Permission to Search" form.

At some point after Smith had signed the written waiver, but before he signed the consent form, Deputy Christensen reached through the broken window of the van, lifted up a blanket, and "recognized some mechanical equipment." After Smith signed the consent form, Deputy Christensen entered the van and retrieved the stolen pump and some hoses.

At the Conclusion of the pretrial hearing, the trial court ruled that Smith's statements were freely and voluntarily given after he was advised of his Miranda rights. The court denied the CrR 3.6 motion to suppress, concluding that there was probable cause to arrest Smith at the time the search occurred.

At trial, the sole disputed issue was whether Smith knew the pump was stolen. Don Trobee testified that Smith used to hang around the automobile body shop where Trobee was employed. On August 24, 1994, Smith appeared at Trobee's house and offered to sell Trobee a hydraulic pump for $400. When Smith lowered the price to $200, Trobee became suspicious and asked "how hot it was." According to Trobee, Smith replied, "last night, Greenshields."

Smith testified that he had purchased the hydraulic pump for $400 from an acquaintance who had approached him that morning at a gas station. He claimed that the seller had given him a bill of sale, but that a friend had accidentally thrown it away. Smith conceded that he became suspicious about the pump when the acquaintance drove away quickly following the sale and that he had told Trobee the pump was "kind of warm." He also acknowledged that he had been convicted of 3 felonies involving dishonesty.

The jury found Smith guilty as charged, and he was sentenced to a standard-range term.

Smith first argues that the trial court erred in denying his motion to suppress the hydraulic pump recovered from his van. He maintains that Deputy Christensen's initial warrantless search of the van was unlawful under the Washington Constitution because the van was parked, immobile, and unoccupied and no exigent circumstances justified the warrantless intrusion. See State v. Patterson, 112 Wash. 2d 731, 774 P.2d 10 (1989) (where not incident to an arrest, police may not search parked, immobile, unoccupied and secured vehicle). He further argues that the illegal search tainted the subsequent written consent to search.

Smith's reliance on Patterson is misplaced, as the vehicle search in that case occurred before the officers had ...


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