No. 25812-9-II.The Court of Appeals of Washington, Division Two.
Filed: November 16, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Pierce County, No. 99-1-01591-8, Hon. Bruce W. Cohoe, March 10, 2000, Judgment or order under review.
Counsel for Appellant(s), Scott S. Schwieger, Attorney At Law, 818 S Yakima Ave, Tacoma, WA 98405.
Counsel for Respondent(s), Michelle Luna-Green, Pierce Co Dep Pros Atty, Rm 946, 930 Tacoma Ave, Tacoma, WA 98402-2171.
DAVID H. ARMSTRONG, C.J.
John Mercer appeals his jury convictions of one count of unlawful possession of a controlled substance, cocaine, and one count of driving while license suspended in the third degree. Police found cocaine in Mercer’s car after his arrest for driving while license suspended. Mercer argues for the first time on appeal that the car search was illegal and, thus, the trial court should have suppressed the cocaine. He also claims that he was denied effective assistance of counsel because trial counsel failed to move to suppress the cocaine under CrR 3.6. Holding that the record on appeal is insufficient for our consideration of his illegal car search claim and that Mercer fails to satisfy Strickland’s two-prong test for a counsel ineffectiveness claim, we affirm.
FACTS
On April 11, 1999, at 12:20 p.m., Officers Shawn Ganley and Robert Maule were patrolling the Hilltop area of Tacoma. They saw and followed a speeding car driven by Mercer. Mercer made a left turn onto East 47th Street without properly signaling, continued driving faster than the posted speed limit, and then stopped next to a curb by a house. Ganley activated the overhead lights on his patrol car and pulled up behind Mercer.
Mercer exited his car, locked the driver’s door, and started walking away. He had not walked `too far’ from his car before the officers stopped him. Ganley ordered Mercer to return to his vehicle. Mercer replied, “but I’m at my house,” and continued to walk away. RP at 11. Ganley again ordered Mercer to return to his car. Mercer approached Ganley and they made contact between the patrol car and Mercer’s car. Ganley conducted a pat-down search of Mercer but did not find any weapons or contraband on him. Meanwhile, the passenger in Mercer’s car, Mary Eddington, had exited the car and walked across the street.
Ganley asked Mercer for identification. Mercer responded that he did not have his identification or wallet on him, and requested permission to go into his house to get it. Ganley refused. Mercer then provided his name and social security number. With this information, Ganley ran a records check, which showed that Mercer’s license was suspended. But the social security number did not match the one given by Mercer, which led the officers to believe he may not be whom he claimed. Instead of issuing a citation, Ganley decided to arrest Mercer for driving while license suspended in the third degree.
After the officers handcuffed and placed Mercer in the back of their patrol car, Maule entered and searched Mercer’s car.[1] Maule found a red men’s coat `right by’ the driver’s seat. RP at 90. Inside the right pocket of the coat was a Norelco electric razor pouch containing a small baggie with five rocks of suspected crack cocaine. Mercer’s wallet and identification card were also inside the pouch. Maule informed Ganley of the items found in Mercer’s car.
Ganley advised Mercer of his Miranda[2] rights, which he waived. Mercer admitted the coat and pouch were his. Ganley asked him what was in the pouch and he replied `cocaine.’ But then Mercer denied knowledge of the cocaine and stated that the passenger in his car must have put the cocaine in the pouch when she wore his coat earlier in the day.
Mercer made a CrR 3.5 motion to suppress his statements but did not move to suppress, under CrR 3.6, the items seized from the car. Mercer’s counsel explained to the court that, based on a `substantial amount of research,’ he decided not to make a CrR 3.6 suppression motion. RP at 5. After reviewing State v. Stroud[3] and State v. Fore,[4] he had concluded that the car search was valid as incident to arrest.
The court denied the CrR 3.5 motion, ruling that Mercer’s statements were admissible. His statements and the cocaine were admitted into evidence at trial. Mercer asserted a defense of unwitting possession.
The jury found Mercer guilty on both counts as charged. He now appeals.
ANALYSIS I. Car Search
In general, we will not consider issues raised for the first time on appeal. RAP 2.5(a). A claim of error, however, may be raised for the first time before this court if it is a `manifest error affecting a constitutional right.’ RAP 2.5(a)(3); State v. Scott, 110 Wn.2d 682, 686-87, 757 P.2d 492 (1988). Actual prejudice must be apparent from the record before the alleged error constitutes a `manifest’ error. State v. McFarland, 127 Wn.2d 322, 333-34, 899 P.2d 1251 (1995).
Where, as here, the alleged constitutional error arises from trial counsel’s failure to make a suppression motion, the defendant must show that the trial court likely would have granted the motion if made. McFarland, 127 Wn.2d at 333-34. Further, the facts necessary to adjudicate the claimed error must be in the record on appeal; if not, then actual prejudice is not shown and the alleged error is not manifest. McFarland, 127 Wn.2d at 333-34; State v. McNeal, 98 Wn. App. 585, 594, 991 P.2d 649 (1999), review granted on other grounds, 140 Wn.2d 1013 (2000).
Here, the record is insufficient for our review to determine whether the trial court likely would have granted a motion to suppress the cocaine seized from the car. Mercer argues that the search was illegal because it could not be justified as incident to arrest. He also summarily asserts that the search was not justifiable as an inventory search. Because a suppression motion was not made, neither party had the opportunity to develop the record on key facts surrounding the circumstances of his arrest and the search of the car.
In State v. Stroud, 106 Wn.2d 144, 720 P.2d 436 (1986), the Washington State Supreme Court adopted a `bright-line’ test for analyzing the proper scope of a vehicle search after an arrest. During the arrest process, including the time immediately subsequent to the suspect’s being arrested, handcuffed, and placed in a patrol car, officers should be allowed to search the passenger compartment of a vehicle for weapons or destructible evidence. However, if the officers encounter a locked container or locked glove compartment, they may not unlock and search either container without obtaining a warrant[.] Stroud, 106 Wn.2d at 152. `This bright line rule applies even in situations devoid of risk to evidence or officers.’ State v. Perea, 85 Wn. App. 339, 343-44, 932 P.2d 1258 (1997).
The search of unlocked containers can occur after the driver has been handcuffed and removed to the police car, so long as the search immediately follows the arrest. Perea, 85 Wn. App. at 344. Thus, close physical and temporal proximity are required for a valid vehicle search incident to arrest. See e.g., State v. Johnston, 107 Wn. App. 280, 28 P.3d 775 (2001) (holding car search was not valid as incident to arrest where defendants’ arrest did not occur until after they had exited their car, had gone into a store for an unspecified length of time, and their proximity to the car at the time of arrest was unspecified); State v. Porter, 102 Wn. App. 327, 6 P.3d 1245 (2000) (holding invalid search of defendant’s van where defendant was walking his dog about 300 feet from his parked van). Here, the record does not reflect the distance between Mercer and his car when the officers arrested him.
Moreover, if the car was locked at the time of seizure, then the officers could not enter it to perform a search incident to arrest. Perea, 85 Wn. App. at 345. The record here is unclear as to whether the car was locked. Although there was testimony that Mercer had locked the driver’s door, there was also testimony that the passenger door was unlocked or even open.
Because the record before this court is unclear on key facts necessary to determine whether the incident-to-arrest, or any other exception to the warrant requirement, justified the search of Mercer’s car, he fails to meet the burden of showing that the trial court likely would have granted the CrR 3.6 motion if made.[5] Thus, the alleged illegal car search does not constitute a manifest error under RAP 2.5(a)(3).
II. Effective Assistance of Counsel
To prevail on a claim of ineffective assistance of counsel, Mercer must demonstrate (1) counsel deficiency, and (2) resulting prejudice. 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).
The failure to make a suppression motion is not per se deficient representation. McFarland, 127 Wn.2d at 336. There may be legitimate strategic or tactical reasons why a suppression motion is not made. McFarland, 127 Wn.2d at 336; State v. Lord, 117 Wn.2d 829, 883, 822 P.2d 177 (1991). Further, there is a `strong presumption’ that counsel provided professional, reasonable assistance. McFarland, 127 Wn.2d at 337 (citing Thomas, 109 Wn.2d at 226).
Thus, Mercer must show the absence of legitimate strategy or tactical reasons supporting counsel’s decision not to challenge the car search. We note that Mercer’s post-Miranda statements to Officer Ganley raised the possibility of unwitting possession as a defense. He denied knowledge of the cocaine and also pointed the finger at his passenger as the person who may have placed it in his coat pocket. Given these statements and his defense of unwitting possession asserted at trial, we agree with the State that counsel’s decision not to move to suppress the cocaine may have been based on legitimate strategic or tactical reasons. Therefore, even if counsel had misinterpreted the law as Mercer asserts, Mercer nevertheless must show the absence of a legitimate tactical or strategic reason for the decision to forego a CrR 3.6 motion. On the record here, he has not done so. Consequently, he fails to rebut the presumption of effective representation and does not satisfy the first prong of the Strickland test.
On the prejudice prong, Mercer must demonstrate actual prejudice based on the existing record as developed in the proceedings below. McFarland, 127 Wn.2d at 334, 337. This means showing that the trial court `likely would have granted the motion’ if trial counsel had moved to suppress the cocaine. McFarland, 127 Wn.2d at 334. As earlier discussed in section I, we cannot conclude that the trial court would likely have granted a CrR 3.6 suppression motion. Thus, Mercer does not satisfy both prongs of the Strickland test and his ineffective counsel claim fails.
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 pursuant to RCW 2.06.040, it is so ordered.
WE CONCUR: HOUGHTON, J., HUNT, J.
(1966).