STATE v. CARTER, 26158-8-II (Wash.App. 7-26-2002)

No. 26158-8-II.The Court of Appeals of Washington, Division Two.
Filed: July 26, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION. ORDER WITHDRAWING OPINION, SUBSTITUTING NEW OPINION AND DENYING MOTION FOR RECONSIDERATON.

Appeal from Superior Court of Kitsap County, No. 99-1-01367-9, Hon. Leonard W. Kruse, June 16, 2000, Judgment or order under review.

Counsel for Appellant(s), Randall A. Sutton, Kitsap Co. Deputy Pros. Atty., Msc 35, 614 Division St, Port Orchard, WA 98366-4681.

Counsel for Respondent(s), Marcus Carter (Appearing Pro Se), 13721 Wicks End Pl SW, Port Orchard, WA 98367.

ELAINE M. HOUGHTON, J.

The unpublished opinion in this case was filed on April 19, 2002. The appellant, State of Washington, has filed a motion for reconsideration. Upon consideration this court is hereby withdrawing said opinion and substituting the attached new opinion. Further, this court is denying the motion for reconsideration.

DATED: this 26 day of July, 2002.

The State appeals from a trial court order suppressing as evidence a weapon taken from Marcus Carter by two criminal investigators employed by the Pierce County Prosecutor’s Office. We affirm.

FACTS[1]
The Pierce County Prosecutor’s Office employed Bruce Jackson and Frank Clark as criminal investigators. On Saturday, May 15, 1999, Jackson and Clark attended a weapons instructor course at the Kitsap Rifle and Pistol Club. They attended for personal and not professional reasons.[2]
Carter was the primary instructor. Carter was also the president of the Kitsap Rifle and Revolver Club, a certified firearms instructor for the National Rifle Association (NRA), and was certified by the Washington State Criminal Justice Training Commission to give firearms courses to private security personnel and private detectives.

As part of the introductions, each student was introduced by others in the class. Other students in the class introduced Jackson and Clark by their job titles, as well as their background in law enforcement. Carter was present in the room during the introductions.

The course included a hands-on portion, where the students were given a selection of weapons Carter provided, and each student selected one weapon from the array of weapons to demonstrate its functions and safety features. Carter did not instruct the students not to open the weapons, and the students did not ask for permission to do so. Both Jackson and Clark selected the AR-15, a civilian version of the military M-16, because of their familiarity with the weapon.[3] The main difference between the two weapons is that the AR-15 is designed to fire only in the semiautomatic mode, whereas the M-16 is capable of firing in both the semiautomatic and full automatic modes.[4] The only way to enable an AR-15 to fire full automatic is by modifying some of its parts.

When he selected the AR-15 to conduct the demonstration, Jackson noticed the safety switch on the weapon had a different shade from the rest of the weapon. He was also able to rotate the safety switch 90 degrees beyond the semiautomatic fire position. This position would be consistent with full automatic fire on an M-16. Through his experience, Jackson knew that a stock AR-15 should not have this feature. Jackson also conducted a `dry cycle’ test to verify his hunch that the weapon was modified to fire full automatic.[5] Curious about the different features between Carter’s AR-15 and his own, Jackson opened the weapon.[6] He immediately noticed what appeared to be an aluminum-colored metal part in the lower receiver just to the rear of the hammer. The metal part appeared specially milled for the weapon.

Suspicious that the AR-15 had been modified, Jackson showed Carter his observations and asked him if the weapon had been modified to fire fully automatic. Carter indicated it had. Carter then reached into the lower receiver and removed the metal part from the weapon.

At the afternoon break, Jackson conferred with Clark about his suspicion that Carter’s AR-15 was contraband because of its modification. Clark did not open up the AR-15 during his demonstration, but he had also noticed that the safety switch could be rotated 90 degrees beyond the semiautomatic fire position. Clark suggested that perhaps Carter fell into one of the exemptions for legally owning a machine gun.[7] They both decided to wait and confront Carter after class. After class ended at 8 p.m., Jackson and Clark approached Carter to verify if he fell within any of the exemptions for owning a machine gun. Jackson also retrieved his AR-15 from his truck and brought it along to show his observations and compare his weapon with Carter’s. Carter admitted that he did not fit into any of the statutory exceptions for owning a machine gun. He also admitted that he modified his AR-15 to fire full automatic by replacing several of the parts with M-16 parts and that the aluminum metal device was to enable the weapon to fire more reliably in the full automatic mode. After confirming this, Jackson and Clark decided they had a duty to take Carter’s AR-15 so it could be tested at the State Crime Laboratory to determine its rate of fire. Carter denied that his AR-15 was illegal and offered to prove that it was incapable of full automatic fire by firing it at the nearby firing range. Carter then indicated that he needed to get some ammunition and went to his truck.

Jackson and Clark noticed what appeared to be furtive movements and Carter’s attempts at rendering the aluminum metal part inoperable. Carter was armed with a loaded pistol. They felt their safety was at risk and decided to abort the fire demonstration. They told Carter that he had two choices: Either give them his weapon so they could have it tested or they would call the police and then he would probably be arrested. Carter refused, and Clark called 911 dispatch to request a deputy sheriff. Jackson and Clark were not law enforcement officers and had no arrest powers. After Clark called the sheriff’s office, Carter decided to hand over his weapon and the metal part to Jackson. Jackson gave Carter a receipt for this weapon. Kitsap County Deputy Sheriff Rodrigue arrived momentarily, and Clark apprised him of the situation. Carter confirmed with Deputy Rodrigue that he had handed his weapon over to Jackson. Jackson offered to hand over Carter’s AR-15 to Deputy Rodrigue, but Deputy Rodrigue declined, indicating he did not want to lengthen the chain of custody. He told Jackson to keep the weapon. Deputy Rodrigue did not arrest Carter that evening. Jackson locked the weapon in his office at the Pierce County Prosecutor’s Office that night and turned it into the evidence room the following Monday. Jackson and Clark wrote a report of the incident, after consulting with the Pierce County Prosecutor.

The Kitsap County Prosecutor’s Office charged Carter with one count of possessing a machine gun, in violation of RCW 9.41.190(1) and .010(7).[8]
Carter moved to suppress the weapon on grounds of illegal search and seizure. CrR 3.6.[9] Specifically, he claimed that Jackson and Clark were state agents at the time they opened his weapon to inspect the interior and later when they seized the weapon and, thus, their actions were tantamount to a warrantless search and seizure in violation of the Fourth Amendment of the U.S. Constitution and article I, section 7 of the Washington State Constitution. The trial court agreed, granted Carter’s motion to suppress, and dismissed the charges against him with prejudice.[10] The State appeals.

ANALYSIS Standard of Review
We review a trial court’s ruling in a motion to suppress evidence by determining whether substantial evidence supports its findings of fact; we then decide if the findings of fact support the trial court’s conclusions of law. State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313
(1994); State v. Crane, 105 Wn. App. 301, 305-06, 19 P.3d 1100 (2001). Substantial evidence is sufficient evidence that will persuade a rational, fair-minded person of the truth in the finding. State v. Finch, 137 Wn.2d 792, 856, 975 P.2d 967, cert. denied, 528 U.S. 922
(1999); Hill, 123 Wn.2d at 644.

State Agent
The State contends that the trial court erred in concluding that Jackson and Clark were state agents and that, therefore, the exclusionary rule applied.[11] More specifically, the State asserts that the trial court erred in entering findings of fact 5, 7, 8, 9, 11, 15, and 16.[12]

Whether a private person acts as an instrumentality of the state depends on critical factors such as `[1] whether the government knew of and acquiesced in the intrusive conduct and [2] whether the party performing the search intended to assist law enforcement efforts or to further his [or her] own ends.’ State v. Swenson, 104 Wn. App. 744, 754, 9 P.3d 933 (2000) (citing United States v. Miller, 688 F.2d 652
(9th Cir. 1982)). Only when the trial court answers yes to both these questions is the person deemed a state agent. Swenson, 104 Wn. App. at 754. But this is only a guideline, not a bright line rule. The final determination depends on the circumstances of each individual case. Swenson, 104 Wn. App. at 754.

Our courts have held that a private person is an agent of the state if `the State in some way `instigated, encouraged, counseled, directed, or controlled’ the conduct of the private person.’ Swenson, 104 Wn. App. at 755 (quoting State v. Smith, 110 Wn.2d 658, 666, 756 P.2d 722 (1988)). A private citizen acting on his own initiative to help the government does not convert himself into a government agent. State v. Walter, 66 Wn. App. 862, 866, 833 P.2d 440 (1992), review denied, 121 Wn.2d 1033 (1993); State v. Dold, 44 Wn. App. 519, 521, 722 P.2d 1353 (1986).

Even when the government takes no deterrent action when it knows that a private citizen might conduct an illegal private search, the private search does not become a governmental search. Swenson, 104 Wn. App. at 755.

In Swenson, the attorney father of a murder victim was not satisfied with the progress of the investigation into his son’s death. He conducted his own investigations and continually shared his results with the police. His zealousness made the police uneasy to the point where they told him to let them do their jobs. He continued in his efforts and obtained and turned over to the police the defendant’s telephone records, something which the police were unable to legally obtain. The court held that the phone records were admissible and that the father was not a state agent because the police did not `instigate, encourage, counsel, or direct [the victim’s father] to obtain [defendant’s] phone records.’ Swenson, 104 Wn. App. at 755.

Here, a review of the record discloses the following facts indicating that Jackson and Clark functioned as state agents. Although Jackson and Clark attended the weapons instructor course on their own time, they made known their occupation as criminal investigators for the Pierce County Prosecutor’s Office. They also threatened Carter with arrest if he did not turn over his weapon. Jackson and Clark admitted telling Carter that he had two choices, either turn the firearm over to them for testing or they would call the sheriff, who would probably arrest him. In response, Carter turned the weapon over after Clark called the sheriff. When Clark called 911 dispatch to request assistance, he identified himself as an investigator in the Pierce County Prosecutor’s Office. Upon his arrival, Deputy Rodrigue examined the firearm, consulted with his superior, and allowed Jackson and Clark to put it into evidence in Pierce County. In addition, Jackson and Clark filed an official report of their actions in Pierce County in which Jackson wrote, `Frank [Clark] told Deputy Rodrigue of our agreement with Carter. That we would place the rifle into evidence and have it tested and would not take him into custody at that time if he cooperated and gave us the rifle and the auto sear.’ Exhibit 5, at 12.

Finally, Jackson and Clark’s report indicates that Pierce County was the originating agency and that a Pierce County case number was assigned to the case. This substantial evidence supports the trial court’s findings and conclusions that Jackson and Clark were agents of the state and that seizing the rifle was unconstitutional.

The Warrantless Search
The State contends that the warrantless search was lawful because Carter did not have a reasonable expectation of privacy in the weapon once he gave Jackson permission to handle the weapon as part of a class demonstration.

Article I, section 7 of the Washington State Constitution provides:

`No person shall be disturbed in his private affairs, or his home invaded, without authority of law.’ This provision differs from the Fourth Amendment and provides greater protection of a person’s right to privacy. State v. Parker, 139 Wn.2d 486, 493, 987 P.2d 73
(1999); see also State v. Ferrier, 136 Wn.2d 103, 110, 960 P.2d 927 (1998) (article I, section 7 clearly recognizes an individual’s right to privacy with no express limitations). Thus, article I, section 7 encompasses the subjective and reasonable expectations of privacy protected by the Fourth Amendment, but also protects “those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass absent a warrant.” Parker, 139 Wn.2d at 494 (quoting State v. Myrick, 102 Wn.2d 506, 511, 688 P.2d 151 (1984)). Under both the Fourth Amendment and article I, section 7, warrantless searches are per se unreasonable unless they fall within “a few specifically established and well-delineated exceptions.” State v. Myers, 117 Wn.2d 332, 337, 815 P.2d 761 (1991) (quoting State v. Chrisman, 100 Wn.2d 814, 817, 676 P.2d 419
(1984)).

The State relies on State v. Walter, 66 Wn. App. 862, 833 P.2d 440
(1992), review denied, 121 Wn.2d 1033 (1993), for the proposition that delivery of an item to a third party generally removes any expectation of privacy in the item.[13] This is too broad of a legal proposition and, in any event, Walter is distinguishable. In that case, the defendant had taken photographs of individuals to make illegal driver’s licenses and submitted the film canisters to a commercial film processor for development. The manager of the film lab turned over the developed pictures and negatives to law enforcement after realizing the nature of the criminal enterprise. Division One held that the defendant no longer had a reasonable expectation of privacy in the pictures or the negatives once he turned over the film to the photo lab for developing. Walter, 66 Wn. App. at 867.

Here, Carter instructed Jackson, along with the other members of the class, to select one weapon for the limited purpose of demonstrating the safety functions of the weapon to the rest of the class. At no time did Carter relinquish custody of the AR-15 to Jackson. Even a temporary relinquishment of physical possession of an object does not entail ipso facto forgoing one’s expectation of privacy in the object. See State v. Kealey, 80 Wn. App. 162, 169, 907 P.2d 319 (1995) (defendant retained an expectation of privacy in her misplaced purse that a store clerk found and turned over to the police), review denied, 129 Wn.2d 1021 (1996). Carter never gave Jackson permission to open the AR-15 for a closer inspection of its internal mechanisms. Unlike in Walter, where the observer can simply discern the unlawful activity by simply looking at the developed pictures, here Jackson could not discern whether the AR-15 had been modified to fire as a fully automatic machine gun from its exterior appearance alone.[14] He had to remove the retaining pin and open the weapon to see the aluminum metal part inside the lower receiver assembly. Thus, Carter never relinquished his reasonable expectation of privacy in the AR-15, even when he offered the weapon to Jackson for demonstration purposes.

Open View
Alternatively, the State contends that no search occurred because Jackson was able to observe the weapon in open view. Under the open view doctrine, no search occurs “when a law enforcement officer is able to detect something by utilization of one or more of his senses while lawfully present at the vantage point where those senses are used.” State v. Bobic, 140 Wn.2d 250, 259, 996 P.2d 610 (2000) (quoting State v. Rose, 128 Wn.2d 388, 392, 909 P.2d 280 (1996)); see also State v. Seagull, 95 Wn.2d 898, 902, 632 P.2d 44 (1981) (open view observation occurs from a non-intrusive vantage point of the object that is knowingly exposed to the public). `However, a substantial and unreasonable departure from a lawful vantage point, or a particularly intrusive method of viewing, may constitute a search.’ State v. Young, 123 Wn.2d 173, 182-83, 867 P.2d 593 (1994).

It is undisputed that Jackson opened the AR-15 to inspect its internal components, where he noticed the aluminum metal part in the lower receiver assembly. Jackson would not have seen this metal part to confirm his suspicion that the weapon had been modified to fire as a fully automatic machine gun had he not opened the weapon. Even assuming Carter authorized Jackson to inspect the outside of the weapon and perform the functions checks, Jackson exceeded the scope of his consent when he opened the weapon to inspect its internal components. At no time did Jackson ask Carter to allow him to open the weapon, and Carter never gave his consent for the internal inspection.[15]

As already noted, opening the AR-15 requires removing the retaining pin that holds the upper assembly and lower receiver assembly in place. For purposes of the open view doctrine analysis, Jackson’s lawful vantage point to observe the AR-15 is from inspecting the outside of the weapon, not opening it to create an artificial vantage point. Jackson’s deliberate and affirmative act of removing the retaining pin and opening the weapon created `a substantial and unreasonable departure from a lawful vantage point.’ Young, 123 Wn.2d at 182. Accordingly, Jackson’s act of opening the AR-15 to inspect its internal components constituted a search. And because the search was not pursuant to a valid search warrant and did not fall within any of the exceptions for a warrantless search, it was unconstitutional. Consequently, the seizure of the weapon based on this unconstitutional search was also illegal. The trial court did not err in suppressing the illegally seized weapon.

Affirmed.[16]

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 pursuant to RCW 2.06.040, it is so ordered.

WE CONCUR: ARMSTRONG, J., HUNT, C.J.