No. 19368-3-III.The Court of Appeals of Washington, Division Three. Panel Six.
Filed: June 18, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Klickitat County, No. 99-1-00079-1, Hon. E. T. Reynolds, June 5, 2000, Judgment or order under review.
Counsel for Appellant(s), Rick L. Hansen, Rakow Hansen, 117 E. Main, Goldendale, WA 98620.
Counsel for Respondent(s), David B. Trefry, Klickitat County Prosecutors Office, 222 W Mission Ste 126, Spokane, WA 99201-2355.
Timothy S. O’Neill, Msc Ch-18, 205 S Columbus Ave, Goldendale, WA 98620-9829.
DENNIS J. SWEENEY, J.
This is a prosecution for possession of drugs with an intent to deliver. James Adkins makes three specific assignments of error.
First, he challenges the court’s conclusion that the arresting officer had probable cause to stop him because he did not have his headlights on, early one summer morning. The officer is not required to test the statutory requirement for visibility — 1,000 feet — to conclude he has probable cause to arrest Mr. Adkins. Next, Mr. Adkins says the failure of the arresting officer to show him a copy of the warrant (the authority for the custodial arrest) and to allow him to post bail, all as required by RCW 10.31.030, should have resulted in suppression of the drugs found during an inventory search. The officer certainly violated the statutory requirements of RCW 10.31.030 — that he show Mr. Adkins a copy of the warrant and allow him to post bail. Nonetheless, Mr. Adkins had already announced that he could not post the $500 bail. So any violation of the statute was harmless.
Finally, Mr. Adkins claims that a friend of his who had agreed to move Mr. Adkins’ car from the roadside acted as a government agent when he consented to a police search of the vehicle. Factually, Mr. Adkins’ allegation is unsupported. We therefore affirm Mr. Adkins’ conviction.
FACTS
Sergeant Joe Riggers and James Adkins met early one summer morning as they approached each other on the Maryhill Grade in Klickitat County. Sergeant Riggers was northbound. Mr. Adkins had just crested the hill southbound. Mr. Adkins’ vehicle displayed only its parking lights. At about 100 feet from the top, Sergeant Riggers saw the Adkins car. The visibility conditions were semi-dark and hazy. Sergeant Riggers concluded that headlights were required. So he stopped Mr. Adkins.
As part of the stop he ran a routine license check. Mr. Adkins had an outstanding warrant. Sergeant Riggers arrested him on the warrant. He patted Mr. Adkins down, found nothing, and transported him to the Klickitat County Jail. Mr. Adkins’ car was secured and left by the side of the road.
At the jail, corrections officer Clay Tallman told Mr. Adkins that there was a warrant and that bail was $500. Mr. Adkins announced that he would not be able to pay the bail.
Officer Tallman then searched Mr. Adkins and found a baggy of marijuana, a small amount of methamphetamine, and a `sniff tube’ (a tube used to snort drugs). Mr. Adkins released his car keys to a friend, Donald Cummings. Mr. Cummings arrived at the jail with a friend to pick up the car keys from Officer Tallman. But he produced only a Washington identification card, not a driver’s license. Officer Tallman warned Mr. Cummings that there might be illegal drugs in the car. Mr. Cummings then drove to where Mr. Adkins’ vehicle was parked.
Sergeant Riggers was again on duty and in the vicinity of the previous day’s arrest. Officer Tallman alerted him that Mr. Cummings was headed his way and probably driving without a license. Sergeant Riggers waited.
As Sergeant Riggers watched, Mr. Cummings approached the Adkins car. Mr. Cummings opened the trunk and began searching. He told Sergeant Riggers that he was concerned about drugs and asked Sergeant Riggers to help him search. Sergeant Riggers obliged and found a bag of marijuana. He immediately suspended the search, impounded the vehicle, and obtained a search warrant. In a subsequent search, police found substantial amounts of methamphetamine and marijuana.
The trial judge concluded that Sergeant Riggers had probable cause for the initial stop of Mr. Adkins based on his professional judgment that the visibility conditions required headlights. The court also concluded that Mr. Adkins’ announcement that he could not make bail justified the full booking procedure, including an inventory search. Finally, the court concluded that the officer’s search of Mr. Adkins’ vehicle was okay because Mr. Cummings had authorized the search, acting in his own self-interest.
Mr. Adkins was convicted on stipulated facts of possession with intent to deliver methamphetamine and possession with intent to deliver marijuana.
PROBABLE CAUSE FOR THE TRAFFIC STOP
RCW 46.37.020 requires that drivers turn on headlights a half-hour before sunrise if a vehicle is not clearly visible at 1,000 feet. Mr. Adkins’ complaint is that Sergeant Riggers only spotted his car 100 feet from the crest of the hill and therefore could make no determination that Mr. Adkins’ lights (he had only his parking lights on) were not visible from a distance of 1,000 feet.
First, the findings of fact supporting the judge’s determination of probable cause are unchallenged. They are therefore verities on appeal. State v. Broadaway, 133 Wn.2d 118, 131, 942 P.2d 363 (1997). The only question here then is whether the findings support the conclusion of probable cause. The court relied on testimony that established the officer’s experience and expertise at evaluating driving conditions on that particular stretch of highway.
Next, we reject Mr. Adkins’ contention that Sergeant Riggers had to actually observe his car from a distance of 1,000 feet. Nothing in the language of the statute would require the officer to actually observe the vehicle with impaired visibility at 1,000 feet. It is, moreover, standard police procedure to make the determination of probable cause on traffic violations without reconstructing the exact requirements for violation of the statute. To impose the strained interpretation proposed by Mr. Adkins would not further the purpose of the statute, which is to enhance public welfare and safety. RCW 46.37.005.
PROPRIETY OF INVENTORY SEARCH
RCW 10.31.030 requires that `[t]he officer making an arrest must inform the defendant that he acts under authority of a warrant, and must also show the warrant.’ And, `any officer making an arrest under this section shall, if the person arrested wishes to deposit bail, take such person directly . . . before an officer authorized to take the recognizance and justify and approve the bail, including the deposit of a sum of money equal to bail.’ RCW 10.31.030.
Here, Mr. Adkins assigns error to the court’s refusal to suppress the results of the inventory search because the arresting officer did not comply with the statute.
We agree that the officer did not comply with the statute. We have consistently held that when a suspect is arrested on a warrant that is not immediately available, the arrestee must be shown the warrant, read the warrant, and be given an opportunity to post bail before any search at the jail. This includes pat-down searches immediately upon arrival and before formal booking. State v. Caldera, 84 Wn. App. 527, 530-31, 929 P.2d 482 (1997). The State argued at trial and here on appeal that RCW 10.31.030 prohibits only formal inventory searches, not the simple pat-down searches.
The trial judge rejected that distinction. And so do we. A search is a search. Here, the officer felt a soft bulge in a pocket, withdrew the contents, and discovered a small quantity of drugs. The court correctly concluded it was a search. Id.
Mr. Adkins argues that his announcement he could not make bail was insufficient to excuse police from formally offering him the opportunity to make bail. He suggests that he should have been given the chance to call friends to try to make bail. But the statute imposes obligations on police `if the person arrested wishes to deposit bail.’ RCW 10.31.030. There is nothing in the statute that would obligate the police to encourage, chide, or provide further opportunities for Mr. Adkins to make bail.
A defect in the arrest procedure will, nonetheless, not warrant reversal absent a showing of prejudice. State v. Henderson, 100 Wn. App. 794, 798, 998 P.2d 907 (2000). Specifically, we will not reverse when it is apparent that the arresting officers sufficiently complied with the statute to have accomplished its purposes. State v. Ekkelkamp, 42 Wn. App. 375, 378, 711 P.2d 1076 (1985). This is in contrast to the situation in which the detainee might have avoided an inventory search if RCW 10.31.030 had been followed. In such a case, the fruits of the search will be suppressed. See State v. Smith, 56 Wn. App. 145, 147-48, 783 P.2d 95 (1989).
By any measure, the error here was harmless. Mr. Adkins had already told the police he would not make the bail posted on the warrant. The reading and opportunity to post bail was then a formality and, again, a formality required only by statute, not the constitution.
MR. CUMMINGS ACTING AS A GOVERNMENT AGENT
Finally, Mr. Adkins argues that his friend, Donald Cummings, was acting as a government agent when he invited Sergeant Riggers to help him search and then consented to the search of Mr. Adkins’ car by Sergeant Riggers. Mr. Adkins’ argument here is that any consent to search by Mr. Cummings was illusory because the State was exercising control over him at all times. He argues that the suggestion by the jailer to Mr. Cummings that he could be arrested, if drugs were found in the car, left Mr. Cummings with really no alternative but to allow the officer to search Mr. Adkins’ vehicle.
The Fourth Amendment protects citizens against government action, but not intrusions by private individuals. Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 65 L.Ed. 1048 (1921); State v. Dold, 44 Wn. App. 519, 521, 722 P.2d 1353 (1986). A violation then of the Fourth Amendment requires both an unreasonable intrusion into privacy and a finding that the unreasonable intrusion was the result of government conduct. United States v. Miller, 688 F.2d 652, 656-57 (9th Cir. 1982). Evidence obtained illegally by a private citizen and turned over to the government will be suppressed only if the private citizen was acting as an instrumentality or as an agent of the government. State v. Swenson, 104 Wn. App. 744, 753, 9 P.3d 933 (2000). The burden is on the defendant to show collusion between the private citizen and the police. Dold, 44 Wn. App. at 523; State v. Krajeski, 104 Wn. App. 377, 382-83, 16 P.3d 69, review denied, 144 Wn.2d 1002 (2001).
The Ninth Circuit established a test for whether a private citizen is acting as a government instrument or agent for these purposes: (1) whether the government knew of and acquiesced in the intrusive conduct; and (2) whether the private citizen’s reasons for performing the search was to assist law enforcement efforts or to further his own ends. Krajeski, 104 Wn. App. at 383.
Here, police may have hoped that Mr. Cummings would search the trunk before driving off. But they could not have known that he would. And the trial judge found that Mr. Cummings was acting in his own self-interest. This finding is amply supported by Mr. Cummings’ expressed concern at the prospect of driving off in Mr. Adkins’ car only to be found in possession of drugs. The search was then for Mr. Cummings’ own protection.
The court’s findings support its conclusions that Mr. Adkins failed to show that Mr. Cummings was acting as a government agent in authorizing Sergeant Riggers to search the vehicle.
We affirm the conviction.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
WE CONCUR: SCHULTHEIS, J., KURTZ, J.