Appeal from Yakima Superior Court. Docket No: 11-1-01793-7. Judge signing: Honorable David a Elofson. Judgment or order under review. Date filed: 05/21/2013.
David L. Donnan and Nancy P. Collins (of Washington Appellate Project ), for appellant.
Joseph A. Brusic, Prosecuting Attorney, and David B. Trefry, Deputy, for respondent.
Authored by Stephen M. Brown. Concurring: Kevin M. Korsmo. Dissenting: Laurel H. Siddoway.
[186 Wn.App. 226] ¶ 1 Adrian Samalia appeals his conviction for possessing a stolen motor vehicle. He contends the trial court erred by denying his CrR 3.6 motion to suppress evidence leading to his identification derived from a cell phone found in an abandoned stolen vehicle after he fled from the vehicle and evaded pursuit. Because the cell phone was abandoned, used in pursuit of the fleeing suspect, and not directly used to identify Mr. Samalia, we hold the trial court did not err in denying suppression of his later identification from a police database. Accordingly, we affirm.
¶ 2 The facts are derived mainly from the trial court's unchallenged CrR 3.6 findings of fact that are, therefore, verities on appeal. State v. O'Neill, 148 Wn.2d 564, 571, 62 P.3d 489 (2003). Yakima Police Officer Ryan Yates was on patrol when his vehicle license plate reader indicated he had passed a stolen vehicle. Officer Yates confirmed the vehicle was stolen by radio and then followed the vehicle, [186 Wn.App. 227] which stopped shortly thereafter. The driver got out of the vehicle and faced Officer Yates. The driver would not obey Officer Yates' command to get back in the vehicle and fled. Officer Yates pursued the male driver but he got away.
¶ 3 Officer Yates returned and searched the car, partly to help identify the driver. He found a cell phone on or in the center console. Not knowing whom the phone belonged to, he called some phone numbers found in the cell phone's contacts section. He spoke to Deylene Telles, who agreed to meet him. Officer Yates reported to his sergeant what happened and gave the phone to him. The sergeant met with Ms. Telles and called her cell phone from the abandoned cell phone. Her cell phone displayed Mr. Samalia's name and picture. The sergeant gave the name to Officer Yates, who located Mr. Samalia's picture in a police database. Officer Yates then identified Mr. Samalia from the database picture as the fleeing man who had been driving the stolen vehicle.
¶ 4 The State charged Mr. Samalia with possession of a stolen motor vehicle. He moved unsuccessfully to suppress the cell phone evidence under CrR 3.6. From the above facts, the trial court concluded the cell phone was abandoned and, therefore, Mr. Samalia no longer had an expectation of privacy in it. Following a bench trial, the court found Mr. Samalia guilty as charged. He appealed.
¶ 5 The issue is whether the trial court erred by denying Mr. Samalia's CrR 3.6 motion to suppress evidence obtained from his cell phone. He contends the evidence was constitutionally protected and could not be accessed without a warrant.
¶ 6 We review a trial court's decision on a motion to suppress to determine whether the findings are supported by substantial evidence and whether those findings, in turn, support the conclusions of law. O'Neill, 148 Wn.2d at [186 Wn.App. 228] 571. We defer to the trier of fact on " issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence." State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004). As previously mentioned, unchallenged findings of fact are verities on appeal. O'Neill, 148 Wn.2d at 571. We review conclusions of law de novo. State v. Johnson, 128 Wn.2d 431, 443, 909 P.2d 293 (1996).
¶ 7 Under Washington Constitution article I, section 7, " [n]o person shall be disturbed in his private affairs ... without authority of law." Our Supreme Court recently held private affairs include information obtained through a cell phone. State v. Hinton, 179 Wn.2d 862, 877, 319 P.3d 9 (2014). Additionally, the Supreme Court of the United States recently noted, " Modern cell phones are not just another technological convenience. With all they contain and all
they may reveal, they hold for many Americans 'the privacies of life.' The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought." Riley v. California, ___ U.S. ___, 134 S.Ct. 2473, 2494-95, 189 L.Ed.2d 430 (2014) (citation omitted) (quoting Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 29 L.Ed. 746 (1886)).
¶ 8 A warrantless search violates article I, section 7 unless it falls under one of " 'a few jealously guarded exceptions.'" State v. MacDicken, 179 Wn.2d 936, 940, 319 P.3d 31 (2014) (quoting State v. Afana, 169 Wn.2d 169, 176-77, 233 P.3d 879 (2010)).
¶ 9 Searching voluntarily abandoned property is an exception to the warrant requirement. State v. Evans, 159 Wn.2d 402, 407, 150 P.3d 105 (2007); see also State v. Reynolds, 144 Wn.2d 282, 287, 27 P.3d 200 (2001) (law enforcement may retrieve and search voluntarily abandoned property without a warrant or probable cause). " Voluntary abandonment is an ultimate fact or conclusion based generally upon a combination of act and intent." Evans, 159 Wn.2d at 408 (citing 1 Wayne R. LaFave, Search [186 Wn.App. 229] and Seizure § 2.6(b) at 574 (3d ed. 1996)). " 'Intent may be inferred from words spoken, acts done, and other objective facts, and all the relevant circumstances at the time of the alleged abandonment should be considered.'" Id. (quoting State v. Dugas, 109 Wn.App. 592, 595, 36 P.3d 577 (2001)). The question is whether the defendant relinquished his reasonable expectation ...