State Of Washington v. John Phi Truong

Filed
Washington State
Court of Appeals
Division Two

March 9, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II
STATE OF WASHINGTON, No. 53203-4-II

Respondent,

v.

JOHN PHI TRUONG, UNPUBLISHED OPINION

Appellant.

WORSWICK, J. — John Phi Truong appeals his convictions for unlawful possession of a

firearm and unlawful possession of a controlled substance—methamphetamine with intent to

deliver, with a firearm enhancement. For the first time on appeal, Truong argues that his

conviction was based on unlawfully seized evidence. Truong also argues that he received

ineffective assistance of counsel for failing to move to suppress the alleged unlawfully seized

evidence. In his Statement of Additional Grounds (SAG) for Review, Truong asserts that the

evidence was insufficient to support the jury’s verdict and that his sentence violates double

jeopardy.

We do not consider Truong’s unlawfully seized evidence argument raised for the first

time on appeal, and the record on appeal does not support his ineffective assistance of counsel

argument. Moreover, we reject the arguments raised in the SAG. Consequently, we affirm.

FACTS

In August 2018, law enforcement officers had reason to believe that John Phi Truong was

living at his mother’s home. Truong’s mother’s home was a single-family dwelling with a two-
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car garage and driveway that faced the street. The garage had been converted into a makeshift

bedroom by adding a bed, heater, and floor coverings. Although the garage was attached to the

house, it was accessible only from the exterior of the garage, either through a standard size door

on the side or through a roll-up style vehicle entry door in the front.

On August 23, Torey Petersen came to Truong’s garage to obtain and use heroin.

Truong’s girlfriend, Lashaia Avila, was in the garage when Petersen arrived.1 Truong, Avila,

and Petersen used drugs together and spent the night in the garage. The next morning, Truong

became irritated when he discovered some of his drugs were missing. According to Petersen,

Truong produced a black revolver and began pacing back and forth, saying, “[W]e’re going to

get to the bottom of [this].” VRP at 93. In fear for his personal safety, Petersen called and sent

text messages to his mother, explaining that he was uncomfortable and that she needed to come

and take him home. Petersen’s mother called law enforcement. Eventually, Petersen was able to

leave the garage despite Truong’s insistence that he stay.

Officers from the Longview Police Department and the Department of Corrections

(DOC) arrived on the scene in response to Petersen’s mother’s call. Once there, they formed “a

team.” Verbatim Report of Proceedings (VRP) at 36. The Longview police officers understood

that the house was the address used by a DOC client, and that the DOC has different roles and

responsibilities than police officers in terms of entering a residence. The DOC officers

determined they would go into the residence and apprehend Truong.

DOC officers obtained permission from Truong’s mother to search the residence. DOC

officers completed a search of the house but did not find Truong inside. Hearing movement

1
At trial, Avila testified that she alone resided in the Truong garage on the day of the search.

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coming from inside of the garage, a group of DOC and Longview police officers assembled on

the driveway in front of the garage’s roll-up door. The garage door began to go up and down,

partially opening, before it finally opened all the way and Truong appeared.2 Truong exited the

garage, sprinted across the driveway and collided with a DOC officer. Truong was apprehended

and arrested in the driveway by DOC officers. DOC officers found a scale with what appeared

to be drug residue on Truong’s person.

The Longview police did not have a warrant to search the garage, however there is

evidence in the record that Truong’s mother gave officers permission to search the residence.

DOC officers began to search the garage under authority of RCW 9.94A.631(1).3 When DOC

officers entered the garage to begin their search, Longview Police Department Corporal Danielle

Jenkins positioned herself on the corner of the garage directly near the garage entryway.

Corporal Jenkins, acting on information that there was a bag inside of the garage that contained

evidence, peered into the garage without actually entering. Jenkins observed a bag hanging from

the rafters and she notified DOC of the bag’s presence. DOC officers retrieved the bag from the

rafters. Jenkins saw “some contents” of the bag and told DOC officers to “hold onto” the bag,

and that she would obtain a search warrant for it. VRP at 38.

2
The record is inconclusive as to who opened the garage.
3
DOC can conduct a warrantless search of a probationer’s “person, residence, automobile, or
other personal property” based on mere “reasonable cause to believe that [the] offender has
violated a condition or requirement of [his/her] sentence.” RCW 9.94A.631(1). In this case,
DOC believed that Truong violated a condition of his community custody by failing to notify a
change of address. Here, DOC had an outstanding warrant for Truong based on an alleged
failure to update his address.

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The bag located in the rafters was a lunch box style, dark colored container with a

zippered lid. Jenkins and other officers of the Longview Police Department obtained a warrant,

opened the bag, and discovered a safe inside. Officers forcibly opened the safe. Inside the safe,

officers discovered a black revolver, ammunition, methamphetamine, heroin, drug paraphernalia,

and cash, along with documents with Avila’s name on them.

Truong was charged by information with one count each of unlawful possession of a

controlled substance with intent to deliver—methamphetamine,4 unlawful possession of a

controlled substance with intent to deliver—heroin5 (each with school zone and firearm

enhancements)6, first degree unlawful possession of a firearm,7 and harassment.8

The case proceeded to a jury trial. At trial, Truong’s attorney neither challenged the

search warrant, nor moved to suppress the evidence located in the bag. A jury found Truong

committed the crimes of possession with intent to deliver methamphetamine, with school zone

and firearm enhancements, and first degree unlawful possession of a firearm.9 Truong was

sentenced to 180 months of total confinement. Truong appeals his conviction, judgment and

sentence.

4
RCW 69.50.401(1), 401(2)(b).
5
RCW 69.50.401(1).
6
RCW 69.50.435(1); RCW 9.94A.533, .825.
7
RCW 9.41.040(1)(a).
8
The jury found Truong not guilty of harassment.
9
The record reflects, without explanation, that the charge of unlawful possession of a controlled
substance with intent to deliver—heroin, was not submitted to the jury.

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ANALYSIS

I. SEARCH AND SEIZURE

For the first time on appeal, Truong argues that the State seized evidence from the garage

in violation of his constitutional rights. Specifically, Truong argues that Corporal Jenkins

conducted an unlawful, warrantless search of his home, and that the fruit of that warrantless

search was used to convict him.

The State argues that Truong waived his right to appeal because he did not move to

suppress this evidence at trial and the record is not sufficiently developed for our review. The

State argues that the record is not sufficient for us to determine whether the error is manifest

because we cannot determine whether the warrantless search was allegedly unreasonable.

Alternatively, the State argues that if it was a warrantless search, one of a number of exceptions

apply.

We agree with State that this record is insufficient for us to decide the merits of Truong’s

argument, thus we do not consider it.

A. Unpreserved Challenge

This court will generally not consider errors raised for the first time on appeal unless a

defendant shows a “manifest error affecting a constitutional right.” RAP 2.5(a)(3). We review

constitutional issues de novo. State v. Fenwick, 164 Wn. App. 392, 398, 264 P.3d 284 (2011).

An error is manifest when a defendant makes a plausible showing that the error had

practical and identifiable consequences in the trial. State v. O'Hara, 167 Wn.2d 91, 99, 217 P.3d

756 (2009). An error cannot be manifest where the record is not sufficient for a reviewing court

to decide the merits of the alleged error. O'Hara, 167 Wn.2d at 99. In other words, a defendant

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No. 53203-4-II

cannot show prejudice and the error is not manifest where the record does not contain all the

facts necessary to adjudicate the alleged error. Fenwick, 164 Wn. App. at 405.

1. Warrantless Search

Both the United States and Washington constitutions provide a right to be free from

unlawful searches. WASH CONST. art. I, § 7; U.S. CONST. amends. IV; XIV. When the

government “‘physically occupie[s] private property for the purpose of obtaining information,’”

that is a “‘‘search’ within the meaning of the Fourth Amendment.’” U.S. v. Perea-Rey, 680 F.3d

1179, 1184 (9th Cir. 2012) (alteration in original) (quoting U.S. v. Jones, 565 U.S. 400, 404, 132

S. Ct. 945, 181 L. Ed. 2d 911 (2012)). Searches and seizures made without a warrant are per se

unreasonable, unless an exception applies. State v. Simpson, 95 Wn.2d 170, 188, 622 P.2d 1199

(1980) (plurality opinion).10

There is no dispute that Corporal Jenkins did not have a warrant to search the garage.

The question is whether the record is sufficient for us to determine whether her conduct

constituted a search, and if so, whether an exception to the warrant requirement applies. We

hold that the record is insufficiently developed to allow us to decide the merits of Truong’s

argument, thus, Truong cannot show manifest constitutional error and his claim fails.

10
Truong argues that the burden is on the State to demonstrate that an exception to the warrant
requirement applies, but because this is a review of an unpreserved error and not a motion to
suppress, Truong bears the burden to show manifest constitutional error, including whether this
record is sufficient for this court to decide the merits of his alleged issue. See O’Hara, 167
Wn.2d at 98; RAP 2.5.

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a. Consent

The State argues that the record is insufficient to determine the scope of any limitations

of the consent Truong’s mother gave to law enforcement to search the residence. Truong argues

that his mother did not have legal authority to give third party consent to search his garage

because he was present, and he did not give his consent, and so the scope of whatever consent

was obtained from Truong’s mother necessarily could not include his garage. We agree with the

State.

Consent to a search is an exception to the warrant requirement. State v. Walker, 136

Wn.2d 678, 682, 965 P.2d 1079 (1998). A host or third party who has dominion and control

over the premises may consent to a search. State v. Thang, 145 Wn.2d 630, 638, 41 P.3d 1159

(2002). Persons who possess common authority can give consent over a premises in the absence

of a nonconsenting individual. State v Thompson, 151 Wn.2d 793, 803-04, 92 P.2d 228 (2004).

If the cohabitant is present and able to object, the police must also obtain the cohabitant’s

consent. State v. Leach, 113 Wn.2d 735, 744, 782 P.2d 1035 (1989). Landlords and tenants do

not have common authority if only the tenant is in possession of the property. State v. Mathe,

102 Wn.2d 537, 544, 688 P.2d 859 (1984). A temporary or overnight guest does not have

standing to challenge a search. State v. Boot, 81 Wn. App. 546, 551, 915 P.2d 592 (1996).

Here, the facts are too inconclusive for us to decide whether police officers had valid

consent to search the garage. Although the officers obtained Truong’s mother’s consent to

search the residence—and the facts do not suggest they obtained Truong’s consent—the facts are

inconclusive as to what authority over the garage Truong actually possessed. For example,

Avila, who was also present, testified that she alone lived in the garage. Officers testified that

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they believed that Truong lived at the address, but the record is unclear what authority, apparent

or actual, Truong’s mother had to give consent to search the garage. As a result, Truong fails to

show prejudice on the grounds that the State did not obtain valid consent to search the garage.

b. Curtilage

The State argues that Corporal Jenkins was “lawfully on the curtilage of the Truong

residence because she was investigating allegations of felony harassment involving a firearm.”

Br. of Resp’t at 10. Truong argues that Corporal Jenkins was standing in an area of curtilage that

was not impliedly open to the public. We hold that the record is insufficiently developed to

determine whether Corporal Jenkins was standing in an area not open to the public.

The home is generally viewed as “the area most strongly protected by the constitution.”

State v. Ross, 141 Wn.2d 304, 312, 4 P.3d 130 (2000) (plurality opinion). Curtilage “is so

intimately tied to the home itself that it should be placed under the home's ‘umbrella’ of Fourth

Amendment protection.” U.S. v. Johnson, 256 F.3d 895, 912 (9th Cir. 2001). “The presence of

an officer within the curtilage of a residence does not automatically amount to an

unconstitutional invasion of privacy. Rather, it must be determined under the facts of each case

just how private the particular observation point actually was.” State v. Seagull, 95 Wn.2d 898,

902, 632 P.2d 44 (1981). An officer’s entry onto curtilage impliedly open to the public “such as

a driveway, walkway, or access route leading to the residence” is not a search. State v. Hoke, 72

Wn. App. 869, 874, 866 P.2d 670 (1994). When an officer makes a “substantial and

unreasonable departure” from curtilage impliedly open to the public, that departure is deemed to

be a violation of a constitutionally protected expectation of privacy. Hoke, 72 Wn. App. at 874.

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No. 53203-4-II

Here, the facts are too inconclusive for us to determine whether Corporal Jenkins was on

curtilage impliedly open to the public or whether she exceeded the scope of what was impliedly

open to the public. The record on appeal shows only that Corporal Jenkins was part of the

“team” that formed at the beginning of the encounter, and stood close to the open garage roll-up

door when she observed the bag. Without more, we cannot resolve whether that vantage point

was impliedly open to the public or not, and “just how private the particular observation point

actually was.” Seagull, 95 Wn.2d at 902.

c. Independent Source

“Under the independent source exception, evidence tainted by unlawful governmental

action is not subject to suppression under the exclusionary rule, provided that it ultimately is

obtained pursuant to a valid warrant or other lawful means independent of the unlawful action.”

State v. Gaines, 154 Wn.2d 711, 718, 116 P.3d 993 (2005).

Jenkins told DOC officers that there was a bag containing suspected evidence in the

rafters of the garage. But there is no evidence as to whether King, the officer who ultimately

seized the bag, heard Jenkins’s statement about the bag or whether he had spotted the bag on his

own accord independent of Jenkins’s conduct. Without evidence to conclude one way or

another, we cannot hold that the bag would be subject to the independent source exception to the

exclusionary rule.

d. DOC’s Authority To Make a Warrantless Search

The State argues that it had the authority to search Truong’s garage by assisting DOC

under their lawful authority to perform a warrantless search. Truong argues that DOC did not

9
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enlist her aid and that Jenkins conducted a search on her own accord. The record is insufficiently

developed to determine this issue.

Probationers and parolees have a diminished right to privacy under the Fourth

Amendment and article 1, section 7 of the Washington Constitution. State v. Lucas, 56 Wn.App.

236, 239-40, 783 P.2d 121 (1989), review denied, 114 Wn.2d 1009, 790 P.2d 167 (1990). The

government can search a probationer or parolee or his residence without a warrant when the

probationer or parolee is subject to a provision authorizing such a search, and when the

government has probable cause to believe that the probationer or parolee is the resident of the

house to be searched. United States v. Grandberry, 730 F.3d 968, 973 (9th Cir. 2013).

RCW 9.94A.631 allows DOC to perform a warrantless search of a probationer’s person,

property, and residence upon “reasonable cause” that probation conditions have been violated.

The Ninth Circuit has upheld RCW 9.94A.631 as consistent with the Fourth Amendment.

United States v. Conway, 122 F.3d 841, 842-43 (9th Cir.1997), cert. denied, 522 U.S. 1065, 118

S. Ct. 730, 139 L. Ed. 2d 668 (1998). When a DOC officer is justified to make a warrantless

search, they may enlist the aid of police officers in performing that duty. State v. Simms, 10 Wn.

App. 75, 86, 516 P.2d 1088 (1973).

Here, the facts are unclear as to whether DOC did in fact “enlist the aid of the police

officers,” and if so, the extent of the aid requested. Corporal Jenkins testified that officers from

Longview Police Department and DOC formed a “team.” The State did not elicit any evidence

clarifying what assistance DOC officers may have enlisted. Notably absent is any testimony

from DOC officer King, who actually seized the bag. This record is simply too lacking in detail

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to conclude whether Corporal Jenkins was acting in concert with DOC when she looked into the

garage.

In conclusion, because Truong failed to request a CrR 3.6 suppression hearing, the State

was unable to fully develop a record regarding the propriety of the search. The record before us

does not show that the trial court would have granted Truong’s motion to suppress, and so

Truong cannot show prejudice. See Fenwick, 164 Wn. App. at 405. Because Truong fails to

show a manifest error affecting a constitutional right, he cannot raise the admissibility of the

fruits of the warrantless search for the first time on appeal. RAP 2.5(a).11

II. INEFFECTIVE ASSISTANCE OF COUNSEL

Truong argues that his attorney’s failure to move to suppress the evidence obtained by

Jenkins’s alleged search constitutes ineffective assistance of counsel. Truong’s argument fails

because the record does not clearly show that the evidence was erroneously admitted and the

record is also devoid of counsel’s reasons for failing to object.

To establish a claim of ineffective assistance of counsel, a defendant is required to show

both deficient performance and that the deficient performance prejudiced him. Strickland v.

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Thomas, 109

Wn.2d 222, 225-26, 743 P.2d 816 (1987). There is a strong presumption that counsel’s

representation was competent. State v. Hassan, 151 Wn. App. 209, 211, 211 P.3d 441, 442

11
The State also argues that “nowhere in the record does it say that Truong was on active DOC
supervision at the time of the search.” Br. of Resp’t at 5. Truong concedes that the evidence
regarding whether Truong was on DOC supervision is “ambiguous.” Reply Br. of Appellant at
5. This ambiguity contributes to this court’s inability to adjudicate the legality of the warrantless
search.

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(2009). This presumption is rebuttable when there is “no conceivable legitimate tactic

explaining counsel’s performance.” State v. Reichenbach, 153 Wn.2d 126, 128, 130, 101 P.3d

80 (2004).12 On direct appeal, we will not consider matters outside the record, and where the

record on appeal does not contain evidence as to counsel’s strategic or tactical decisions for

failing to object, the appropriate method of review is a personal restraint petition. State v.

Linville, 191 Wn.2d 513, 524-25, 423 P.3d 842, 847 (2018).

Here, the record is insufficient to determine whether counsel performed deficiently. The

record is not sufficient for us to determine that the evidence should have been excluded, and

there is no evidence in the record as to counsel’s strategic or tactical decisions regarding this

issue. We also cannot conclude that there was “no conceivable legitimate tactic explaining

counsel’s performance,” because the record is not conclusive as to whether the evidence was

erroneously admitted. Reichenbach, 153 Wn. 2d at 130. Consequently, Truong’s ineffective

assistance of counsel claim fails.

III. STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW

In his SAG, Truong argues that his conviction is not supported by sufficient evidence.

Specifically, Truong argues that the evidence does not support that he was in possession of the

firearm for either the unlawful possession of a firearm conviction or the firearm sentencing

enhancement on his possession conviction. Separately, Truong argues that a firearm special

verdict finding amounts to double jeopardy for double counting. We disagree.

12
In Reichenbach, the record showed that a search warrant was invalid at the time of its
execution, and that this argument was available to trial counsel. 153 Wn.2d at 131.

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No. 53203-4-II

A. Sufficiency of the Evidence

Truong disputes that sufficient evidence exists to support his firearm conviction or the

firearm sentencing enhancement. We disagree.

Sufficient evidence supports a jury verdict if a rational trier of fact viewing the evidence

in the light most favorable to the State could find each element proved beyond a reasonable

doubt. State v. Raleigh, 157 Wn. App. 728, 736, 238 P.3d 1211 (2010). An appellant’s

challenge to the sufficiency of the evidence admits the truth of the State’s evidence and all

reasonable inferences drawn therefrom. Raleigh, 157 Wn. App. at 736. “Circumstantial

evidence and direct evidence are equally reliable” and “[c]redibility determinations are for the

trier of fact and are not subject to review.” State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d

970 (2004). We defer to the trier of fact on conflicting testimony, credibility, and the

persuasiveness of the evidence. Raleigh, 157 Wn.App. at 736-37.

Constructive possession is established where the defendant exercised dominion and

control over the item in question. State v. Jones, 146 Wn.2d 328, 333, 45 P.3d 1062 (2002). The

ability to immediately take actual possession of an item can establish dominion and control.

State v. Listoe, 15 Wn. App.2d 308, 326-27, 475 P.3d 534 (2020). For purposes of weapons

enhancements, a person is “armed” if the weapon is “‘easily accessible and readily available for

use’ and there was a nexus or connection between the defendant, the crime, and the weapon.”

State v. Eckenrode, 159 Wn.2d 488, 493, 150 P.3d 1116 (2007) (plurality opinion) (quoting State

v. Valdobinos, 122 Wn.2d 270, 282, 858 P.2d 199 (1993)).

Here, Petersen testified at trial that Truong did actually possess the firearm in question

when he was pacing around the garage in a menacing manner the morning of his arrest. Even

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disregarding any testimony about the safe, Petersen’s testimony about Truong’s possession of the

gun alone is sufficient evidence of both the unlawful possession of a firearm charge and the

firearm sentencing enhancement.

B. Double Jeopardy

Truong’s contention that the trial court erred when it calculated his base offense level

under RCW 9.94A.517 for being armed with a deadly weapon while also adding a firearm

enhancement under RCW 9.94A.533(3)(b) is without merit.13

The law of double jeopardy with respect to the federal sentencing scheme is instructive.

“[I]mpermissible double counting . . . occurs where one part of the Guidelines is applied to

increase a defendant’s punishment on account of a kind of harm that has already been fully

accounted for by the application of another part of the Guidelines.” United States v. Reese, 2

F.3d 870, 895 (9th Cir. 1993). “If, on the other hand, it is possible to be sentenced under a

particular offense guideline without having engaged in a certain sort of behavior, such behavior

may be used to enhance the offense level.” Reese, 2 F.3d at 895.

Here, it was possible for Truong to be assigned the base offense level he received by

being armed with a deadly weapon other than a firearm. Therefore, the fact that the deadly

weapon he possessed happened to be a firearm would be grounds for a proper sentence

13
Truong cites RCW 9.94A.517, but it appears he meant to cite RCW 9.94A.518, which includes
Table 4, and provides for an increase in the seriousness level of drug offenses when a jury
returns a deadly weapon special verdict in connection with the drug offense conviction. By
definition, all firearms are deadly weapons. State v. McGrew, 156 Wn. App. 546, 560, 234 P.3d
268 (2010).

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enhancement and would not constitute a form of double jeopardy for double counting. Truong’s

claim of double jeopardy fails.

CONCLUSION

In conclusion, Truong’s unpreserved challenge cannot be raised because he fails to show

the alleged error is manifest. We hold that Truong has failed to show on this record that he

received ineffective assistance of counsel. Regarding Truong’s SAG, we hold that sufficient

evidence supports the jury’s verdict, and that Truong’s judgment and sentence does not violate

the prohibition against double jeopardy. Accordingly, we affirm.

A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.

___________________________
Worswick, J.

We concur:

________________________________
Lee, C.J.

________________________________
Glasgow, J.

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