FILED
SEPTEMBER 21, 2017
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 34327-8-111
Respondent, )
)
v. )
) UNPUBLISHED OPINION
CARL R. MOORE JR., )
)
Appellant. )
SIDDOWAY, J. - Carl Moore appeals his convictions for possession of a
controlled substance (methamphetamine ), arguing that the trial court erred when it failed
to suppress evidence discovered in a search incident to his second warrantless arrest for a
single crime and impermissibly commented on th¢ evidence, his trial lawyer provided
ineffective assistance of counsel by failing to objtjct to irrelevant and prejudicial
testimony, and the trial court imposed discretionary legal financial obligations (LFOs)
No. 34327-8-111
State v. Moore
without inquiring into Mr. Moore's current or futur~ ability to pay. 1 The only possible
error was not preserved. We affirm.
FACTS AND PROCEDURAL! BACKGROUND
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On June 4, 2015, detectives with the Quad qities Drug Task Force attempted to
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locate Shannon Grove, who had been cooperating 'fith law enforcement as a controlled
buyer of narcotics but had "[gone] sideways" on th¢ task force; Detective Jonathan Coe, a
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task force member, described her as "dealing behintl our backs" in violation of her
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contract. Report of Proceedings (RP) at 8. Knowi*g from Ms. Grove's prior disclosures.
that she obtained methamphetamine from out-of-to-}vn suppliers at Gary Kemper's home
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in Clarkston Heights, detectives surveilled the area ;of his home in hopes of sighting her.
As expected, Ms. Grove was observed leavi$g Mr. Kemper's home in the
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passenger seat of a red pickup truck driven by Carl !Moore. Officers followed the truck
and initiated a stop. While another officer spoke w~th Ms. Grove, Detective Coe spoke
with Mr. Moore.
The detective's knowledge of Mr. Moore's ~ackground combined with his
presence at the Kemper home and accompaniment py Ms. Grove led Detective Coe to
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1
In a statement of additional grounds for review, Mr. Moore makes additional
arguments that the State's only witness testified falsely at trial in several instances. We
reject those challenges, since "[ c ]redibility determihations are for the trier of fact and
cannot be reviewed on appeal." State v. Camarillo( 115 Wn.2d 60, 71, 794 P.2d 850
(1990).
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No. 34327-8-111
State v. Moore
suspect Mr. Moore was using or selling methamph~tamine. After advising him of his
Miranda 2 rights, Detective Coe questioned Mr. Moore, asking ifhe had any narcotics.
Mr. Moore said he did not, but his demeanor sugge~ted otherwise to the detective, who
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told Mr. Moore, "Look, Carl, got drugs on you [sic], I can work with you, we can help
take care of this, so why don't you just take 'em out." RP at 88. Mr. Moore did,
emptying his pockets of a "baggie" containing thre¢ smaller baggies of
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methamphetamine and a glass smoking pipe. In re~ponse to Detective Coe's proposal
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that Mr. Moore ameliorate charges by cooperating with the task force, Mr. Moore
answered that he would. The detective put Mr. Mopre in handcuffs, placed him under
arrest for the drug possession, and had other office~s transport him to the jail, telling Mr.
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Moore, "I'll get back to you." RP at 22.
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Moments after officers left for the jail with Mr. Moore, Detective Coe was told
that a robbery suspect who had also been at the Ke~per home was attempting to elude
officers who had signaled him to pull him over. T}ie detective got in his own car to assist
in the pursuit. After the pursuit escalated into an officer-involved shooting, Detective
Coe and others were sequestered indefinitely for an investigation. Knowing it would be
difficult to timely complete a probable cause affidaivit in support of Mr. Moore's arrest
and detention, Detective Coe called the jail and sptjke with Mr. Moore. He told Mr.
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2
Miranda v. Arizona, 384 U.S. 436, 86 S. C~. 1602, 16 L. Ed. 2d 694 (1966).
3
No. 34327-8-III
State v. Moore
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Moore he would be released without charges in exchange for cooperating with law
enforcement, and told Mr. Moore to call him after ~is release.
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Mr. Moore did not thereafter call Detective cpoe, and the detective's calls to the
cell phone number he had been given by Mr. Moor~ were not answered. Because Mr.
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Moore was transient, Detective Coe was unable to ~ocate him.
Then, on October 7, 2015, while Detective Goe was surveilling another house
known to be a narcotics trafficking site, he saw Md Moore arrive at the house, enter, and
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leave about 15 minutes later. After a deputy in a m~rked car pulled over Mr. Moore's
pickup, Detective Coe arrived, pointed out to Mr. Moore that he had never made contact
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or done anything to cooperate, and stated, "I'm goi~g to arrest you for the drugs that you
had." RP at 31. During a search incident to arrest, !the detective found narcotics in Mr.
Moore's pocket. Detective Coe then completed probable cause reports for both arrests.
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The State charged Mr. Moore with two counts of possession of methamphetamine,
one each for the substances discovered in June and )October. In a pretrial motion to
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suppress, Mr. Moore argued that the information afailable to task force members at the
time of the June 4 stop "fail[ ed] to give rise to a re~sonable suspicion of specific criminal
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activity on the part of either Mr. Moore or his pass¢nger" so, "the stop of Mr. Moore's
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vehicle was unlawful and all fruits of the unlawful ~top must be suppressed." Clerk's
Papers (CP) at 32-33. He argued that the October Stop "constitutes fruit of the poisonous
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tree, as it is the Un-attenuated byproduct of the initirl unlawful stop on June 4." CP at 33.
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4
No. 34327-8-III
State v. Moore
The trial court denied the suppression motion, concluding that officers had reasonable
suspicion on June 4 that the occupants of Mr. Moore's pickup truck were involved in
illegal drug activities. It concluded that the controlled substances seized on June 4 and
October 7 were, respectively, the result of a lawful investigative detention and of a lawful
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search incident to arrest.
Following a one-day trial at which Detectiv~ Coe was the only witness, the jury
found Mr. Moore guilty on both counts. The baggies alleged to be those obtained from
Mr. Moore in June and October and lab reports ideq.tifying their contents as
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methamphetamine had been offered by the State anµ admitted without objection.
The trial court sentenced Mr. Moore to eigh~ months for each count, to run
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concurrently, and imposed $4,770 in LFOs. While !the judgment and sentence contained
a boilerplate finding of Mr. Moore's ability to pay tlhe LFOs, the trial court did not
inquire into ability to pay on the record. Mr. Moorf did not object. He now appeals.
ANALYSIS:
Violation of Fourth Amendment and CrR 3.2.1
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Mr. Moore first argues that the evidence obthined during the October arrest should
have been suppressed because re-arresting Mr. Moq,re on the same evidence that
supported his June arrest was unconstitutional undtjr the Fourth Amendment to the United
States Constitution without first obtaining a warranjt. His reasoning is this:
• An arrest requires a warrant or probable cause.
5
No. 34327-8-111
State v. Moore
• Where a warrantless arrest is made, C~R 3.2.l(a) provides, consistent with
the Fourth Amendment, that "[a] perspn who is arrested shall have a
judicial determination of probable cause no later than 48 hours following
the person's arrest, unless probable cause has been determined prior to such
arrest."
• There was no judicial determination qf probable cause within 48 hours
following Mr. Moore's warrantless artest on June 4.
• In accordance with the reasoning of srate V. Watkins, 399 So. 2d 153, 154
(La. 1981) and United States v. Holmes, 452 F.2d 249,260 (7th Cir. 1971),
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we should hold that once the 48-hour ~ime frame for a judicial
determination of probable cause is mi~sed, any arrest thereafter requires a
warra11t-lest police continually re-arrest individuals on the same evidence
without the protection against unreas1nable police interference provided by
a neutral magistrate. i
Mr. Moore admits that no Washington case directly supports his challenge. 3 He contends
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this argument was sufficiently raised below by def~nse counsel's claim that the October
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stop had no legal basis. Alternatively, he argues that it was ineffective assistance of
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counsel not to have made this argument in support ~f suppression.
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This argument was not sufficiently raised in ithe trial court. Neither in his
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3
He characterizes State v. Bradford, 95 Wn. App. 935, 978 P.2d 534 (1999), as
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indirectly providing support by considering suppre$sion as a remedy for a violation of
CrRLJ 3.2.1. But in that case, the violation of the t1t1le was one circumstance considered
in determining whether the defendant's confession ~o a crime following a too-long
detention was involuntary. This court concluded ttlat while it did not condone the
"unnecessary and unwarranted delay" in the preli~nary appearance, the delay was "but
one of the factors to be taken into consideration in ~etermining whether [the] confession
was voluntary for [the] purposes of the Fifth Amen~ment." Id. at 949. After reviewing
the factors, this court found the confession was volpntary. Id. It was the possible
involuntariness of the confession that would have supported reversal, not the rule
violation.
6
No. 34327-8-111
State v. Moore
memorandum in support of suppression nor at the hiearing did defense counsel mention
CrR 3.2.1, or the two cases whose reasoning Mr. Moore now asks us to embrace, or, for
that matter, any Fourth Amendment jurisprudence requiring judicial determination of
probable cause following a warrantless arrest.
RAP 2.5(a) states the general rule for appellate disposition of issues not raised in
the trial court: appellate courts will not entertain th~m. State v. Guzman Nunez, 160 Wn.
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App. 150, 157, 248 P.3d 103 (2011) (citing State v. 'Scott, 110 Wn.2d 682, 685, 757 P.2d
492 (1988)), aff'd, 174 Wn.2d 707, 285 P.3d 21 (2tjl2). This rule exists to afford the trial
court an opportunity to correct errors as they are ra~sed, thereby preserving the use of
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judicial resources. Scott, 110 Wn.2d at 685; Smith~- Shannon, 100 Wn.2d 26, 37, 666
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P.2d 351 (1983).
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Mr. Moore argues that if the error was not pteserved, the conviction is nonetheless
reversible on the basis of ineffective assistance of dounsel. Effective assistance of
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counsel is guaranteed by both the federal and state ~onstitutions. U.S. CONST. amend. VI;
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WASH. CONST. art. I, § 22; Strickland v. Washingto~, 466 U.S. 668, 686, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984); State v. Mierz, 127 Wn.2d 460,471,901 P.2d 286 (1995). To
demonstrate ineffective assistance of counsel, a de(endant must show two things: "( 1)
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defense counsel's representation was deficient, i.e., it fell below an objective standard of
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reasonableness based on consideration of all the ci~cumstances; and (2) defense counsel's
deficient representation prejudiced the defendant, i.e., there is a reasonable probability
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No. 34327-8-111
State V. Moore
that, except for counsel's unprofessional errors, theiresult of the proceeding would have
been different." State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995)
(citing State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987)). When a claim
can be disposed of on one ground, this court need nbt consider both. Strickland, 466 U.S.
at 697.
Washington courts strongly presume counsei's representation was effective.
McFarland, 127 Wn.2d at 335. A claim of ineffect~ve assistance of counsel can be raised
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for the first time on appeal. State v. Kyllo, 166 Wnj2d 856, 862, 215 P.3d 177 (2009).
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To determine whether trial counsel's failure ~o raise this issue was deficient
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performance, we consider whether the warrantless October arrest was arguably improper.
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Mr. Moore's argument is essentially that the proba*le cause supporting one arrest cannot
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constitutionally support re-arrest-instead, an arres~ warrant must b~ obtained.
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"To implement the Fourth Amendment's prQtection against unfounded invasions
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of liberty and privacy, the [United States Supreme]/Court has required that the existence
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of probable cause be decided by a neutral and detaqhed magistrate whenever possible."
Gerstein v. Pugh, 420 U.S. 103, 112, 95 S. Ct. 854,i 43 L. Ed. 2d 54 (1975). The Fourth
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Amendment requirement of a judicial determinatiob of probable cause is "a prerequisite
to extended restraint of liberty following arrest," h~wever, not to the arrest itself. Id. at
114 (emphasis added). Despite the preference for use of arrest warrants when feasible,
"[T]he Court ... has never invalidated an arrest supported by probable cause solely
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No. 34327-8-III
State v. Moore
because the officers failed to secure a warrant." /d.,at 113 (citations omitted). Rather,
"[T]he Fourth Amendment requires a timely judicial determination of probable cause as a
prerequisite to detention," id. at 126, and as "a con4ition for any significant pretrial
restraint of liberty." Id. at 125. "[A] jurisdiction that provides judicial determinations of
probable cause within 48 hours of arrest will, as a general matter, comply with the
promptness requirement of Gerstein." County of Riverside v. McLaughlin, 500 U.S. 44,
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56-57, 111 S. Ct. 1661, 114 L. Ed. 2d 49 (1991). I
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In Washington, the requirement for a prompt judicial determination of probable
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cause is codified in CrR 3.2.l(a). See Harrison Me'rn 'I Hosp. v. Kitsap County, 103
Wn.2d 887,891, 700 P.2d 732 (1985) (noting CrR h.2A 4 "was designed to protect a
prisoner's constitutional privileges"). Consistent with the Fourth Amendment's
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protection against the serious consequences of prolbnged detention, CrR 3 .2.1 provides
that at the time of the preliminary appearance of a defendant who was subjected to a
warrantless arrest, the court must proceed to determine probable cause if bail or other
conditions to release are ordered. CrR 3.2.l(b), (e)(2). CrR 3.2 provides that "[i]fthe
court does not find, or a court has not previously ftjund, probable cause, the accused shall
be released without conditions."
4
Former CrR 3.2A (1992) was renumbered rs CrR 3.2.l(a)-(b) effective April 3,
2001.
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No. 34327-8-III
State v. Moore
Mr. Moore was released without conditions $hortly following his June arrest. He
was arrested "early in the morning." RP at 109. H¢ "was almost immediately released"
because Detective Coe knew he would be unable toi complete a probable cause report due
to the investigation of the officer-involved shooting. RP at 120. The exact amount of
time Mr. Moore was detained that day is unknown, :but it appears to have been only a few
hours.
Mr. Moore was re-arrested at an unknown time on October 7. On October 8, at
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9:12, 5 a bond hearing was held and Mr. Moore's bap was set at $25,000. Because the
court denied release without bail, it evidently detenpined that probable cause existed. It
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appears Mr. Moore was held for less than 48 hours before receiving his constitutionally
guaranteed hearing: several hours in June and perh4ps 24 hours in October. There is no
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discemable error.
The two non-Washington decisions Mr. Mo<)>re urges us to find persuasive are
distinguishable. In Watkins, a pre-McLaughlin decision, the defendant was ordered
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released after he was detained for more than 72 hours following a warrantless arrest
without going before a neutral magistrate. Watkins, 399 So. 2d at 154. Moments after
his release, he was re-arrested without a warrant an~ without a determination of probable
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5
Presumably 9: 12 a.m., although the crimin~l minutes prepared by the district
court do not specify. See Contact District Court, AlsoTIN COUNTY,
http://www.co.asotin.wa.us/district-court/contact/ [https://perma.cc/EG3T-KULX]
(listing hours for Asotin County District Court as 8:00 a.m. to 5:00 p.m.).
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No. 34327-8-111
State v. Moore
cause, and was denied release. Id. at 155. The Lou;tsiana Supreme Court held this
procedure was a "revolving door" that allowed the State to circumvent the release order.
Id. at 156. While recognizing that "there is no 'absolute immunity' from rearrest after
release" for violation of its 72-hour rule, the court r~asoned that the State must have legal
grounds for re-arrest, which it concluded in Mr. wJtkins's circumstances required a
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warrant. Id. at 155 (quoting State v. Wallace, 392 ~o. 2d 410,413 (La. 1980)).
Watkins would support Mr. Moore's argumejnt ifhe had been held for more than
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48 hours in June without a probable cause hearing. As Mr. Moore contends, to allow law
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enforcement to detain individuals for more than 48 lhours without a judicial determination
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of probable cause, followed by release, re-arrest, and an additional 48 hours within which
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to conduct a preliminary appearance, would subjec~ defendants to the prolonged detention
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without a judicial determination of probable cause forbidden by the Fourth Amendment.
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But that was not the situation here. Even Mr. Mo01re's combined June and October pre-
hearing detention (let alone the June detention itselb did not exceed 48 hours. The
concerns addressed in Watson do not apply.
Holmes is similarly inapposite. There, a de(endant was arrested in March 1967
and, following an indictment, was released on bond. Holmes, 452 F.2d at 260. He was
then re-arrested in October without a warrant after fl superseding indictment was
returned. Id. On review, the Seventh Circuit found the re-arrest violated the Fourth
Amendment because it served no purpose:
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No. 34327-8-111
State v. Moore
Not only must there be reason to believe tha~ a prospective arrestee is guilty
of a crime; in addition, there must be some pµrpose to be served by making
an arrest. During the entire period between :rr.,,Iarch and October 18, 1967,
probable cause to believe that [the defendan~ had committed an offense
continued to exist because he was under indiftment. But since he had been
admitted to bail, no purpose could have bee11 served by continually
rearresting him. Although at large, in conteri1plation of the law he
remained in custody. In historic terms, he w~s the prisoner of his bail.
The return of the second indictment j~stified a review of his
custodial status. Additional charges might h~ve made a rearrest proper, to
be followed either by termination of bail or cl modification of its conditions.
In [this] case, however, when the second indjctment was returned, the judge
ordered no change in his custodial status. Tte subsequent arrest, therefore,
had no greater purpose than if there had bee no second indictment.
We recognize that a variety of valid c uses for a rearrest of a person
admitted to bail may exist, see Carlson v. L~ndon, 342 U.S. 524, 546-547,
72 S. Ct. 525, 96 L. Ed. 547 [(1952)], but cehainly the continuing
knowledge of his possible guilt of the offens~ charged in the indictment is
not itself sufficient; otherwise, harassment b~ continual rearrests could be
justified by the continuing existence of "probable cause."
Id. at 260-61 (footnotes omitted). Holmes applies what appears to be the general rule that
where one has been released on bail, he cannot be ~rrested in the same jurisdiction on the
same charge on which the original arrest was made1 See United States ex rel. Heikkinen
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;
v. Gordon, 190 F.2d 16, 19 (8th Cir. 1951), citedwfth approval in Carlson, 42 U.S. at
546 n.47. By contrast, upon his release in June, Mr. Moore had not been charged, was
not released on bail, and was under no formal requijrement to appear.
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Mr. Moore's novel argument on appeal has ijio basis in existing law. Failing to
make the argument in the trial court could not be d¢ficient performance.
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No. 34327-8-111
State v. Moore
Comment on the evidence I
Mr. Moore next assigns error to what he contends was a comment by the trial
court on the evidence in violation of the Washingtoh Constitution. At issue is the trial
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court's statement, made shortly after admitting the ~aggies of methamphetamine as
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exhibits: "Keep track of that. I don't want my cou1room becoming a superfund cleanup
site." RP at 124.
Article IV, section 16 of the Washington Coµstitution provides: "Judges shall not
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charge juries with respect to matters of fact, nor cmhment thereon, but shall declare the
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law." "The purpose of this provision is to prevent ~jury from being influenced by
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knowledge conveyed to it by the trial judge as to thb trial judge's opinion of the evidence
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submitted." State v. Swan, 114 Wn.2d 613,657, 7~0 P.2d 610 (1990). A trial court
improperly comments on the evidence if it effectiv~ly removes "a disputed issue of fact
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from the jury's consideration." State v. Becker, 131 Wn.2d 54, 65,935 P.2d 1321 (1997).
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Mr. Moore asserts that whether the substanc~ in the baggies admitted into
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evidence was methamphetamine was a disputed iss~e of fact for the jury to resolve, but
the record belies this assertion. Rather than challertging whether the baggies in evidence
contained methamphetamine, defense counsel attempted to cast doubt on the chain of
custody, suggesting that the methamphetamine in e~idence had not come from Mr.
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Moore. In closing argument, defense counsel told jurors:
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No. 34327-8-III
State v. Moore
Is there a reasonable doubt that this sJbstance contains--that this
bag contains methamphetamine[?] No. YoJ've got the lab reports.
This is P-3. And you'll be able to takf this back in the jury room
with you. And there's a lab report that goes !with it that says this substance
is methamphetamine.
This is P-1. And there's a lab report ~at goes with this that says that
substance is methamphetamine. ·
Is there a reasonable doubt there? No.
The hang-up is in the possession. Be¢ause for all of the testimony
that we heard ... we don't know when this got put in the bag. Det. Coe
wasn't able to tell you. He doesn't know. Be doesn't know who took it up
to the evidence vault. He can't tell you. !
Same with this one. He doesn't kno~ when this went in the
evidence bag, when he wrote his initials on i~. He doesn't know when it got
to the evidence vault .... He doesn't know /whether he took it there. He
doesn't know [whether] one of the other det~ctives took it there.
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Am I suggesting that Det. Coe made, mistake[?] Yes ....
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Police officers are human. They mat¢ mistakes. We understand
that. But if there's a possibility that Det. Cob made mistakes like he did all
morning on the stand, that's a reasonable dohbt.
Because remember, folks, ... no matj:er what the tape says, no
matter what the stickers say, no matter whatJs on the lab report, there is
nothing connecting the contents of these bags with Mr. Moore except the
testimony of that mistaken officer. ·
RP at 174-78.
Mr. Moore argues on appeal that defense coµnsel' s closing argument is not
evidence. True. But his closing argument reveals what was and was not in dispute.
Because it was not disputed that the baggies admitt~d into evidence contained
methamphetamine, the trial court's attempt at humState of Washington v. Carl R. Moore, Jr.
Combined Opinion