No. 49695-6-I.The Court of Appeals of Washington, Division One.
Filed: October 21, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of King County, No. 011078506, Hon. Ann Schindler, December 7, 2001, Judgment or order under review.
Counsel for Appellant(s), Washington Appellate Project, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Sharon J. Blackford, Washington Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101.
Kira T. Franz, Washington Appellate Project, 1305 4th Ave Ste 802, Seattle, WA 98101.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/Appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
John B. Castleton Jr, 516 3rd Ave W554, Seattle, WA 98104.
PER CURIAM.
William Bourdeau appeals his conviction for unlawful possession of a firearm, arguing that the trial court erroneously admitted evidence against him that was obtained during an illegal search. In particular, he contends that the police violated his rights by opening a small cloth bag handed to an officer by Bourdeau’s mother, who had been searching his belongings for a gun. Because the trial court found that the gun was revealed by a private search rather than by government action, we affirm.
FACTS
After an argument with her 20 year old son William Bourdeau (Bourdeau), Barbara Bourdeau told him to leave her house and not to return. About two months later, Ms. Bourdeau returned home from work to find that Bourdeau had broken into the house. Ms. Bourdeau called the police, who arrested Bourdeau for criminal trespass.
After the police took Bourdeau to jail, they took a written statement from Ms. Bourdeau. In addition to describing the events of that day, she asked the officers to take some duffel bags that Bourdeau left in the house to the jail. Ms. Bourdeau explained that she had found a gun and clips in Bourdeau’s room on a prior occasion and was afraid that he had a gun in his duffel bags. Concerned for her own safety and that of her 8 year old daughter, she told the officers that she did not want Bourdeau’s guns, or any drugs or drug paraphernalia, in her house. The officers told her that the jail would not accept the bags because of their size but agreed to take any items that she did not want from the house.
After telling the officers that she was sure that she would discover a gun, Ms. Bourdeau began searching through Bourdeau’s duffel bags. As she pulled out a small cloth “Crown Royal” bag, she became extremely upset, exclaiming “Oh, my god, this is what I was afraid of!” She handed the bag to an officer, who took out a 9mm handgun and removed the ammunition. Ms. Bourdeau was so upset that she could not continue to search and she asked the officers to finish searching the duffel bags.
Because he had a prior conviction for second degree assault, the State charged Bourdeau with unlawful possession of a firearm in the first degree.[1] At a CR 3.6 hearing, defense counsel argued that the evidence should be suppressed because the police encouraged Ms. Bourdeau to search the duffel bags and then conducted their own separate search of the Crown Royal bag to find the gun, thereby violating Bourdeau’s Fourth Amendment rights. Finding that Ms. Bourdeau discovered the gun while searching the duffel bags for her own purposes and without encouragement from the police, the trial court denied the motion to suppress and admitted the gun as evidence. Following a bench trial, the trial court found Bourdeau guilty. On appeal, Bourdeau does not challenge the trial court’s conclusion that Ms. Bourdeau’s search of the duffel bags did not violate his constitutional rights. However, he contends the officer conducted an illegal warrantless search of the Crown Royal bag.
DECISION
A search violates the Fourth Amendment when a government agent infringes upon an expectation of privacy that society is prepared to consider reasonable, but a search effected by a private individual is not constitutionally prohibited.[2] The government may use the results of a private search without violating the Fourth Amendment as long as the police do not exceed the scope of the private search or infringe upon a reasonable expectation of privacy that has not already been frustrated by the private action.[3] To support his contention that the police conducted a separate search of the Crown Royal bag that exceeded the scope of Ms. Bourdeau’s search, Bourdeau relies on the following written finding under the heading “The Undisputed Facts:” While searching the defendant’s possessions, Ms. Bourdeau discovered a bag she believed . . . contained a firearm. Ms. Bourdeau became extremely upset and handed the . . . bag to the officers, who opened it and found a gun.[4]
He argues that in this statement, the trial court explicitly found that Ms. Bourdeau had not opened the bag and that the officers had to open the bag to find the gun, thereby conducting their own warrantless search of the Crown Royal bag.
Based on our review of the trial court’s written findings and conclusions, its oral opinion, and the record, we disagree with Bourdeau’s interpretation. Although, when read alone, the identified finding appears to make a distinction between Ms. Bourdeau’s discovery of the bag and the officer’s discovery of the gun, in light of the entire record, it is clear that the trial court did not consider the officer’s action a separate search leading to the discovery of the gun. Rather, the trial court considered and rejected defense counsel’s argument at the hearing that there were two separate searches, and determined that, for the purposes of the Fourth Amendment analysis, when Ms. Bourdeau pulled the Crown Royal bag out of the duffel bag and handed it to the officers, she discovered the gun.
In its written order, the trial court stated:
The Court finds that there is substantial evidence in the record establishing that the officers did not instigate, counsel, encourage or direct the search.
The Court also finds that there is substantial evidence in the record establishing that Ms. Bourdeau conducted the search on her own and that she discovered the gun.
(Emphasis added)
Ms. Bourdeau had concerns about the defendant’s drug use and possession of weapons. She conducted the search out of the concern for her safety and the safety of her eight-year-old daughter who also lived in the house.
The Court finds that Ms. Bourdeau was furthering her own ends and not the criminal investigation when she searched the defendant’s possessions. The Court concludes that the defendant has not met his burden of establishing that Ms. Bourdeau was acting as an instrumentality of the State when she discovered his gun.[5]
Where, as here, the court’s oral decision is formally incorporated into its written findings and conclusions, the oral opinion, which is in no way inconsistent with the court’s ultimate decision, may be used to clarify the court’s written factual and legal determinations.[6] The trial court’s oral discussion of conflicting testimony presented at the hearing demonstrates that the police were not required to take any further action to reveal the gun. The trial court stated:
She did conduct the search on her own. She did discover a bag that contained a gun. There was testimony about the gun that was found by Ms. Bourdeau. According to Officer Lim she removed the gun. According to Corporal McComber he could see the butt end of the gun. According to Ms. Bourdeau she indicated that she felt the bag and that it was a gun and that she then gave it to the police officers. Despite the conflict in recollection between the three individuals at the time of the discovery of the gun, it was clear that Ms. Bourdeau is extremely distraught upon finding the gun, and it’s clear that she is the one who found it, and it is clear that she is the one who provided it to the police officers.[7]
(Emphasis added)
Rather than resolving the conflict in the testimony by determining whether the Crown Royal bag was open or closed, or how much of the gun was in the officers’ plain view, the trial court found that Ms. Bourdeau, rather than the officers, discovered the gun. Based on this finding, it is clear that the gun was revealed before any police action. Thus, the trial court properly concluded that Bourdeau’s Fourth Amendment rights were not violated.
Affirmed.
(1987).