ANTHONY D. JONES, Plaintiff,
TACOMA POLICE DEPARTMENT, KENNETH P. SMITH, HENRY BETTS, Defendants.
REPORT AND RECOMMENDATION
KAREN L. STROMBOM, Magistrate Judge.
Before the Court is the motion for summary judgment of Defendants Tacoma Police Department (TPD), Kenneth P. Smith, and Henry Betts. ECF No. 25. On October 28, 2013, Defendants provided Plaintiff Anthony D. Jones with a notice consistent with Woods v. Carey, 684 F.3d 934, 935, 940-41 (9th Cir. 2012). Mr. Jones filed no papers in opposition to the motion.
Based on the Court's review of the motion, summary judgment evidence, and balance of the record, the Court concludes that Defendants' motion for summary judgment should be granted.
FACTS AND PROCEDURAL HISTORY
On November 21, 2007, Tacoma Police Officers Kenneth Smith and Henry Betts were on duty when they saw Mr. Jones driving an automobile without wearing a seat belt. ECF No. 26, Affidavit of Jean P. Homan and Exhibit 1 (Excerpts from Volume I of Report of Proceedings before the Pierce County Superior Court, Cause XX-X-XXXXX-X) (hereinafter RP 1), pp. 105-108; see also Exhibit 9 to Homan Affidavit (copy of partially published opinion in State v. Anthony DeWayne Jones, 163 Wn.App. 354; 266 P.3d 822 (August 30, 2011)). Officer Smith initiated a traffic stop. RP I, p. 109. As Officer Smith approached, Mr. Jones opened the door to his automobile. RP I, pp. 110-111.
Officer Smith observed a compartment in the open driver's side door of Mr. Jones's automobile which contained white pills and an unlabeled pill bottle. RP I, pp. 112. The pills had spilled out of one of the bottles and Officer Smith noted an imprint of the number 512 on one of the white pills. RP I, pp. 112-113. Officer Smith recognized the pill as oxycodone. Id. Officer Smith asked Mr. Jones who owned the pills and Mr. Jones responded that they belonged to his wife. RP I, pp. 113-114. Officer Smith asked Mr. Jones if the pill bottle was labeled and Mr. Jones responded that it was not. Id. Officer Smith asked Mr. Jones what the pills were and Mr. Jones told Officer Smith that the pills were Percocet. Id. Officer Smith advised Mr. Jones he was under arrest for unlawful possession of a controlled substance, asked him to step out of his automobile, placed him in handcuffs, and read him his Miranda  warnings. RP I, p. 115.
Officer Smith then searched Mr. Jones incident to arrest. RP I, p. 118. As he reached into Mr. Jones's left front pant pocket, Mr. Jones said, "This is not good; I am f***ed." RP I, p. 119. Concerned for his safety, Officer Smith asked Mr. Jones what was in his pocket. Id. Mr. Jones replied, "I got some stuff that I should not be having." PR I, p. 120. Officer Smith then opened Mr. Jones's pocket to look inside and observed a plastic baggie containing individually packaged blue baggies. Each baggie contained a white chalky substance. Id. Officer Smith asked Mr. Jones if the substance, which he suspected to be crack cocaine, was fake and Mr. Jones replied, "No, that's some coke." RP I, pp. 121-122. At trial, Officer Smith testified that in his experience, the amount of cocaine, a total of 21 grams, and the packaging were consistent with an intent to sell the drugs. When Officer Smith asked Mr. Jones what he intended to do with the drugs, Mr. Jones responded that he had intended to sell the pills and the crack cocaine. RP I, p. 129-131.
After placing Mr. Jones in the back of his patrol car, Officer Smith searched Mr. Jones's automobile. Officer Smith found two pill containers, which contained pills, in the driver's side door console. The large pill bottle contained what appeared to be oxycodone and methadone pills. The smaller bottle contained what appeared to be methadone pills. RP I, p. 122, 125-127. Forensics later confirmed that the substances found in Mr. Jones's automobile and on his person were cocaine, oxycodone, and methadone. State v. Jones, 266 P.3d at 889.
Mr. Jones' version of the events corroborates the officers' testimony. ECF No. 26, Exhibit 2 to Homan Affidavit (excerpts from Volume II of the Proceedings), herein RP II, pp. 236-245. Officer Betts testified similarly to Officer Smith, however, Officer Betts did not conduct the search of Mr. Jones's person or his automobile. RP I, pp. 165-171.
On January 25, 2008, Mr. Jones was charged with unlawful possession of cocaine with intent to deliver, unlawful possession of oxycodone, and unlawful possession of methadone in the Pierce County Superior Court. ECF No. 26, Exhibit 3 to Homan Affidavit (original Information and Affidavit of Probable Cause). During trial, the State amended the information, adding a school bus zone enhancement to Mr. Jones's unlawful possession of cocaine with intent to deliver charge. Id., Exhibit 4 to Homan Affidavit (Amended Information and Affidavit for Probable Cause). Mr. Jones was found guilty at a jury trial on all three counts, including the school bus zone enhancement. Id., Exhibit 5 to Homan Affidavit (original Judgment and Sentence). Mr. Jones was sentenced to 60 months on the possession of cocaine with intent to deliver charge, plus an additional twenty-four months consecutive school bus zone enhancement. Id. Mr. Jones was also sentenced to 24 months' incarceration for the possession of the oxycodone and methadone pills located in his automobile. Those sentences were ordered to run concurrently with his 84 month sentence for the unlawful possession of cocaine with intent to deliver (within 1, 000 feet of a school bus zone).
B. Procedural History
Mr. Jones successfully appealed his conviction for unlawful possession of oxycodone and unlawful possession of methadone under the Washington Constitution on the grounds that Officer Smith's search of Mr. Jones's automobile was illegal because Officer Smith did not obtain a warrant prior to conducting the search. The Court of Appeals determined that although, under the open view doctrine, the officer's observation of the pills, from the non-constitutionally protected area outside of the automobile, was not a search, entry into the automobile violated article I, §7 of the Washington State Constitution. State v. Jones, 163 Wn.App. 354, 266 P.3d 886 (2011).
The Washington Court of Appeals reversed Mr. Jones's convictions for possession of the oxycodone and methadone pills but affirmed his conviction for unlawful possession of cocaine with intent to deliver within 1, 000 feet of a school bus zone. Jones, 163 Wn.App. at 356. Mr. Jones was resentenced by the Pierce County Superior Court on the remaining affirmed charge. ECF No. 26, Exhibit 6 to Homan Affidavit (Order of Dismissal re: Counts II and Ill) and Exhibit 7 (Judgment and Sentence, Count I) to Homan ...