### FILED MARCH 17, 2015 In the Office ofthe Clerk ofCourt W A State Court ofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) ) No. 31794-3-111 Respondent, ) ) 

### v. ) ) LARRYGENEMARQUETTE, ) UNPUBLISHED OPINION ) Appellant. ) FEARING, 1.

- After a traffic stop, law enforcement officers seized methamphetamine and drug paraphernalia from Larry Marquette's car. Thetrial court convicted Marquette ofone count ofpossession ofa controlled substance with intentto deliver. On appeal, Marquette argues that evidence seized inside the car and an inculpatory statement made atthe time ofthe seizure shouldbe suppressed. He also challenges the chain ofcustody ofthe methamphetamine. We affirm the trial court's denial ofthe motions to suppress and affirmthe conviction.

### No. 31794-3-111 State 

### v. Marquette

FACTS On the afternoon ofApril 4, 

### 2012, Spokane County Deputy SheriffleffThurman observed Larry Marquette drive eastbound on 

### 1-90. Marquette exited the freeway atthe Argonne Street exit from the fourth lane, without signaling. The fourth lane gives the optionto continue on 

### 1-90 orexit, and the fifth lane is an exit only lane. Thurman followed Marquette offthe freeway and northbound onto Argonne before turning on his emergency lights at the intersection ofArgonne and Knox. When Deputy leffThurman activated his patrol car's emergency lights, he observed Marquette immediately reaching toward his seat, which Thurman characterized

as a furtive movement. Thurman tookthis furtive movement seriously and requested assistance. Larry Marquette drove in the far left lane ofArgonne. He later testified thathe did not immediately pull his carto the side because ofconsiderable traffic andthe absence of

a safeplace to stop. When Marquette failed to stop at the intersection with Knox, Deputy Thurman activated his siren and followed Marquette's carto the Montgomery intersection, where Marquette turned left and stopped in a dirt lot. Marquette testified that he sawthe dirt lot and signaledto the officerby pointing toward the lot out his car window while waiting to tum left on Montgomery. Washington State Patrol Trooper Kristopher Stone coincidentally saw Deputy Thurman's car's emergency lights and pulled into the lot as Thurman physically restrained Marquette. 

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### No. 31794-3-111 State v. Marquette Larry Marquette and Deputy JeffThunnan disagree about the events that occurred after the stop in the dirt lot. Atthe suppression hearing, Thunnan testified: [Tbunnan]: 

### 1 quickly exit my vehicle to try to get control ofthe driver to have him show me his hands, because 1don'tknow ifhe's trying to retrieve or conceal a weapon. 1noticed, in my peripheral vision, a trooper carpulling up. 1approached the driver's door ofthe vehicle, 1tell Mr. Marquette to show me his hands, he showed me his hands. 1open the door ofhis car. 1tell him-have him exit the car. When he exits the car, 1 immediately take control ofhis hands because 1don'tknow ifhe has weapons on his person. [By Prosecutor]: Could 1stop you there? When you say take control ofhis hands, how are you doing that? A. Basically took his ann, placed it behind his back into a handhold, and walked him backto mypatrol scar [sic]. As 1was walking-as 1had him exit the car, Trooper Stone

... came overto the side with me, the driver's side. As 1was walking Marquette back, Mr. Marquette backto my patrol car, 1told Trooper Stone to conduct a frisk ofthe-underneaththe driver's seat for any weapons. Q. Okay. What did you do with Mr. Marquette then? A. 1walkedhim to the front ofmypatrol car, asked him whathe was trying to hide. He said he was trying to gethis cell phone. 1told him that 1was gonna frisk him down for weapons. 1asked him ifhehad any weapon on his person, he said no. Andthen 1asked him if1could search his person, he said yes. And aboutthat same time, Trooper Stone walked up to me and said that he didn't enterthe vehicle. He said he observed what appeared to be a baggy ofmethamphetamine on the floorboard ofthe car onthe driver's side. Q. What do you do when Trooper Stone gives youthat infonnation? A. 1advised Mr. Marquette he was under arrest. 1placed him into custody and detained him in handcuffs. Q. What do you did at thatpoint? A. Atthat point 1placedhim into the back seat ofmy patrol car. 1 had Trooper Stone stand with him. 1walked up to the vehicle, 1looked in from the outside, confinnedwhat Trooper Stone saw, 1walked backto Mr. Marquette. Q. And whenyou get backthere, what do you do? 3

### No. 31794-3-111 

### State v. 

### Marquette

A. Had him-I took him back out ofthe patrol car and 

### 1 continued to read him his 

### Miranda rights, which he said-atfirst he said he did not understand them. And 1told him that 1didn't want toplay any games, he looked like he was an educated man. And he said, "All right, 1don't want to play games either." And he continued to tell me he did understand his rights. 

### Q. Okay. And thenyou obtained consent to search? A. Then 1obtained consentto search the vehicle. Also gave him a consent to search card, which advised him he has the right to refuse, restrict orrevoke the search. He understood and he also gave consent to search the vehicle. Q. Okay. A. 1unhandcuffed his hand atthat time and allowed him to sign both cards. Q. Who did the search ofthe vehicle? A. 1did. Report ofProceedings (RP) (Oct. 

### 18,2012) at 

### 62-65. Larry Marquette testified at the suppression hearing: [Marquette]:

... The deputy came up and openedmy car door and told me to get the F out ofthe car, right. [Counsel]: Let me stop you there and go back a minute. While you were driving in the distance between 

### 1-90 and where you stopped, okay. Were you making any movements with your hands? A. Yeah; 1was looking for my cell phone. And it's a stick shift so, 1mean, it's a five speed. 

### Q. Where were you looking for-what point in the car or onyou were you looking for yourcell phone? A. Well my car's-it'sprobably in my seat and coat pockets 'cause 1was wearing two coats. Q. All right. Okay. So let'sjump forward again to where wejust left offpriorto that question. The deputy approaches your car. And what's said? A. He openedthe cardoor andtold me to get the F out ofthe car. Q. Okay. What did you do or say, ifanything? 4l

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### l )**~** No.**31794~3~III** 

### j State v. 

### Marquette 

# I A. I held up my hand and said, "Easy, tough guy, it ain't that serious." I 

# I J Atwhich pointhe grabbed my arm andpulled me out ofthe car and 

# I took me and put me down on his car. And I told him, "Man, there's no need to get violent." He says, "IfI was getting violent, you'dbe on the ground." I'm like, "Okay." 

# ! Q. How did he-inwhat manner did he putyou on the car? I , A. Arm behindthe back and like-yeah, like I was resisting him, i which, you know. 

### ! , Q. Were you standing? Were you bent over? A. I was bent over, face down on his car, yes. 

### Q. Was it one hand behind your back? Orboth? A. Well, he first had the one, then hetook the other, yeah. Q. Okay. What happenednext? A. He says what was I looking for, I said my cell phone. Andthen he told the other officer to look underthe seat. I told him, "UnderArizona v. Gantz (Phonetic), you can't search my car, I've been removed." Q. Now what happened afterthe-I'mnot asking you whatwas said, necessarily, but what happened after the officer looked into your car? A. The other officer came up and said there was some meth inthere. Q. All right. Were you then arrested? A. Yeah. Hehad putthe cuffs on me when he put me onthe car. Q. Before the other officerwent and looked at the car? A. Yeah. Q. All right. Okay. Were the doors ofthepolice car opened or closed? A. Closed. Q. All right. Were you able to get out ofthat car? A. Absolutely not, no. Q. Why not? A. Cause I was in handcuffs and, I mean, the door's closedto the car.



### 5No. 31794-3-111 State v. Marquette

RP (Oct. 18,2012) at 24-27. Deputy Thurman found one cell phone in thepassenger seat and another in Marquette's pocket. The cellphone removed from Marquette's person rang in excess of tentimes while Deputy Thurman spoketo Marquette. JeffThurmantestified he obtained consent to search the vehicle and releasedthe handcuffs long enough for Larry Marquette to sign a consentto search card and a Miranda waiver card. Thurman testified that Marquette was evasive at first, stating he did not understand the rights being read to him, butthat he ultimately cooperated. According to Thurman, Marquette stated he used methamphetaminethat morning and officers would find a baggie ofmethamphetamine onthe driver's floorboard. Thurman searchedMarquette's car and found the same bagthatTrooper Stone advised me ofonthe floorboard, driver side floorboard front. There was a knife next to it. Itappearedthat the front edge ofit had been cut off. The same white crystal substancethat 1recognized from my training and experience as methamphetamine was, also, onthe seat, itself, the driver seat. Onthe passenger seat, there was a black bag that contained several small bindle baggies that are commonly used to package drugs from my training and experience, a cell phone andthenthe stereo system inthe vehicle appeared it had been removed multiple times. 1was able tojust barely pull on it, and it came all the way out. There was another bag stuffedbehindthat that containedthe same type ofpackaging materials and baggies thatwas inthe bag onthe passenger seatwere, also, insidethe bag thatwas behind the stereo. There was, also, a white crystal substance that 1recognized as methamphetamine in there and a scale inside there that had a white crystal residue on it.

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# I RP (Apr. 15,2013) at 25-26. 

# I I Deputy SheriffJeffThurmantestified that after he completed the search, he 

# I returned to his patrol carto question Marquette, who told himhe was onprobation and 

# i I sold methamphetamine "here and there" to make ends meet. RP (Apr. 15,2013) at 27. 

## I ! According to Thurman, Marquette said he did not want to speak with drug detectives, but told Thurmanthe bag ofmethamphetamine found behind the stereo would contain about

an eighth ofan ounce. Thurman summoned a tow company to impound Marquette's car, buthe later cancelled the impound afterMarquette asked ifa friend with a tow truck could retrieve the car. Thurmantestifiedthat he allowed the friend to tow the carbecause Marquette was cooperative. Thurman also testified that, based on his training and experience, Marquette appeared to be high on methamphetaminebecause ofrapid speech. In contrast, Larry Marquette testified he told Deputy Thurman three or four times that he did notwanthim to search the car and, under

### Arizona v. 

### Gant, the deputy could not search it. Marquette averred that Thurman remarkedthat suspects did not usually "thro:w case law" at him and that he would impoundthe vehicle and procure a search warrant anyway. RP (Apr. 15,2013) at 45-46. Marquette told Deputy Thurman thathe could not afford to pay to retrieve the car from impound and needed the carto visithis ill mother. Marquette testified Thurman said, "you let me search it. I will see what I can do for you." RP (Apr. 15,2013) at 47. Marquette declared that Thurman told him that, ifhe

7No. 31794-3-III 

### State v. 

### Marquette

would talk about the drugs found behindthe stereo, Thurman would try to limit the charges to being in possession rather than possession with intentto deliver. PROCEDURE The State ofWashington charged Larry Marquette with one count ofpossession of

a controlled substance with intent to deliver. Marquette filed a CrR3.6 motion to suppress the methamphetamine and other evidence obtained viathe warrantless search of his vehicle, arguing (1) no exceptions to the warrant requirement applied, (2) the traffic stop was pretext for an unrelated criminal investigation, and (3) Marquette's consent to search the vehicle was not validly obtained. The trial court heard testimony and argument on the CrR3.6 motion and denied it. The trial court entered, in part, the following findings offact: 6. Deputy Thurman approached the driver, later identified as Larry Gene Marquette, and ordered him to show his hands. The defendant complied. The deputy ordered the defendant to get out ofthe car. The defendant complied. The driver's doorremained open. Deputy Thurman placedthe defendant in handcuffs and escorted him next to his patrol car. Deputy Thurman asked the defendant what he had been doing reaching underthe driver's seat. The defendant replied that he was reaching for his cell phone. Deputy Thurman asked the defendant ifhe had any weapons on his person andthe defendant replied no. 7. Trooper Christopher Stone ofthe Washington State Patrol arrived to assistthe deputy. The deputy asked the trooper to look under the seat; howeverthe trooper did not look under the seat. 8. Trooper Stone wentto the open door. He sawwhathe believed to be a baggie ofmethamphetamine onthe front driver's side floorboard. The trooper did not enterthe car. He returned to Deputy Thurman and told him what he had observed. Deputy Thurman arrested the defendant.

8No. 31794-3-III 

### State v. 

### Marquette

9. Deputy Thurman advised Mr. Marquette ofhis Miranda warnings. The defendant indicated thathe understood his rights. The deputy read a search consent card to the defendant. The defendant signed the card. The deputy searched the car and seized itemsofevidence. Clerk's Papers (CP) at 130-31. Basedon its findings, the trial court entered, in part, the following conclusions of law after the CrR 3.6 hearing: 

### 3. There was no search ofthe vehicle, as defined by the Washington State or United States Constitution, by Trooper Stone. The car door was open. The carwas in a public area. Thetrooperwas in a public area. The trooper saw the baggie in open view when he was in a place where he was authorizedto be. 4. Deputy Thurman advisedthe defendant ofhis Miranda and Ferrier warnings. The defendant consented tothe search ofthe car. The evidence was seized afterthe defendant gave consentto search. There was no violation ofArizona v. Gant. CP at 131. Larry Marquette filed a CrR 3.5 motion to suppress the statements that Deputy Jeff Thurman alleged he uttered afterhis arrest. Marquette argued: (1) a CrR 3.5 hearing was needed to determine whether a proper

### .Miranda warning precededhis statements, and (2) his statements were involuntary underthe Fourteenth Amendment and inadmissible for any purpose. Afterhearingtestimony and argument, the trial court orally ruled the statements Mr. Marquette made were valid statements. They were eventhough custodial, he was advised ofhis rights. As far as the statements was he offered something in exchange for waiving his rights, even though they're Mr. Marquette's own testimony that when he told the deputy he couldn't search, the deputy said he was goingto tow it and get a search warrant, which is his right to towthe car and get a 9No. 31794-3-II1 

### State v. 

### Marquette

search warrant. Mr. Marquette had said he couldn't afford it. He didn'twant to get it out. So whether Mr. Marquette made that offer, I did not find thatthe' deputy offered that in lieu ofhim waiving his rights based on Mr. Marquette's own testimony. The Court is still goingto find that they were knowingly, voluntarily and they were consensual atthe time for waiving his rights. RP (Apr. 15,2013) at 70-71. The trial court did not enter written findings offact orconclusions oflaw in support ofthe denial oftheerR3.5 motion until one year after the hearing and after Marquette filed his openingbriefinthe present appeal. The criminal charge proceeded to a bench trial. Spokane County SheriffDeputy leffThurman again testified that, during his search ofLarry Marquette's car, he found two small baggies ofmethamphetamine onthe floorboard, two small baggies of methamphetamine behind the car stereo, and a small scale with white residue in a nylon bag behind the car stereo. Thurman also found a black nylon bag on the passenger seat that contained a cell phone, address book, and empty small bindle baggies with little green alien skulls printedthereon. Thurman testified that the bags found on the floorboard andthe bindle baggies were 1" x 3/4" in size. Attrial, Deputy Thurman testified that, afterhe finished his search ofthe car, he spoke with Larry Marquette, who told him of 1/8 ofan ounce ofmethamphetamine behind the car stereo. Thurman declared thatthe cell phone found on Marquette'sperson rang multipletimes while they were waiting for Marquette's friend to come andtow his 10

### No. 3 1 794-3-II1 State v. Marquette

car. Attrial, Deputy JeffThunnan testified he labeled and placed in separate evidence bags: exhibit (1) the crystalline substance found in the baggies on the floorboard and behind the car stereo, exhibit (2) the digital scale, exhibit (3) empty baggies and cellophane found behind the car stereo, exhibit (4) the black nylon bagfound behind the

car stereo, exhibit (5) a small red address book and the cell phones found on Larry 

### , Marquette's person and on the passenger seat, and exhibit (6) the black nylon case found

on thepassenger seat, still holdingthe bindle baggies with green alien skulls printed on them. Thunnan placed all the items into a secure storage bin in the county sheriffs property room. JeffThunnantestified at trial that, before booking the evidence, he weighed at 0.2 grams the methamphetamine found onthe floorboard and at 1.6 grams the methamphetamine found behind the stereo. Thunnan used a scale from the sheriff department's property room to weighthe methamphetamine. He cleaned the scale before

use. Thurman testified that the 1.6 grams found behind the stereo ofthe carwas close to

an eighth ofan ounce, or about 2.29 grams. Detective Lloyd Hixson ofthe Spokane County SheriffsDrugUnit testified that he transported exhibits 1through 6 to the Washington State Patrol Crime Laboratory on June 15,2012, two and one-halfmonths afterthe seizure ofthe evidence. Trevor Allen, a forensic scientist at the Washington State Patrol Crime Laboratory, testified thatAlex 11No. 31794-3-III State 

### v. Marquette

Seaboalt received exhibit 1containing the methamphetamine on that same day. Alex Seaboalt did not testify at trial. Allen testified that, although he could notrememberthe time ofday he first handled the methamphetamine, hereceived exhibit 1with its original seal from the sheriff's office intact, and that he didnot see any other openings in its bag. TrevorAllen testified attrial thathe found two sealed zip lock bags in the exhibit 1folder. He also testified that he took the crystalline substance out ofone bag numbered 002 and weighed itat 5.81 grams. In addition, Allen testified that, on June 27, 2012, he conducted gas chromatography and microcrystalline tests to confirm the crystalline substance was a combination ofmethamphetamine and dimethyl sulfone, a lawful dietary supplement. Allen followed the same process for the second bag, numbered 003, and determined that it also held methamphetamine cutwith dimethyl sulfone weighing 0.21 grams. Allen then repackaged exhibit 1, sealed the evidence bag, and dated it. Allen testifiedhe conducted the same process on the plastic bags found in exhibit 3, and discovered trace amounts ofmethamphetamine. On July 11,2012,Allenprepared a draft report ofhis testresults, which he sent for peer review. Thereview occurred onJuly 16, 2012. Attrial,·Larry Marquette questioned Deputy JeffThurman about the discrepancy between the weights he recorded for the methamphetamine he recovered from Marquette's car and the weights recorded by TrevorAllen at the Washington State Patrol

12No. 31794-3-111 State v. Marquette

Crime Laboratory Thurman testified "Apparently, 1wrote down the wrong number or read the scale wrong." RP (Apr. 16,2013) at 181. When the State ofWashington moved to admit exhibits 1and 3 into evidence, Larry Marquette objected. He argued thatthe State could not lay a proper foundation for admission or comply with the confrontation'clause absent testimony from Alex Seaboalt, the evidence custodian who received the exhibits from Detective Lloyd Hixon. Marquette also argued that the State had notproperly accounted for the discrepancy in weights respectively taken by the Spokane County Sheriffs Office and the Washington State Patrol's Crime Laboratory. The State countered that issues ofcontamination or disparity in evidence go to weight and not admissibility, and that Alex Seaboalt's absence did not violate the confrontation clause. The trial court ruled in favor ofthe State and admitted exhibits 1and 3. The courtreasoned that Washington 

### v. Campbell, 103 Wn.2d 1,691 P.2d 929 (1984) holds that minor gaps in the chain ofcustody go to weight and not admissibility. Larry Marquette brought a halftime motion to dismiss and a motion to dismiss at the close ofthe State's case in chief. Marquette argued that the State lacked sufficient evidenceto prove intent to deliver, based on corpus delicti, lack ofcorroboration, and unreliability ofthe weight ofthe methamphetamine found in Marquette's car. The trial court denied both ofMarquette's motions.



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### No. 3 1 794-3-II1 

### State v. 

### Marquette

The trial court found Larry Marquette guilty ofpossession ofa controlled substance with intent to deliver. The court made an oral ruling with several findings of fact and concluded that the State proved all the elements ofthe charge: The issue then comes down to did he possess it with an intent to deliver. The Court looks at the evidence that Deputy Thurman testified to. He stated Mr. Marquette told him he had nojob, but he had bought a car for $500. He had $612 in cash on him, two cell phones with one continuously ringing, the address book, the scale with residue, the bindles and the baggies, the additional baggies. Based on all ofthat, the Courtwould find without a reasonable doubt Mr. Marquette possess[ed] a controlled substance. With the admission of selling the meth and made the $2,000 in the last two months, the Court would have to find that Mr. Marquette is guilty ofthe crime as charged. The Court did go through onthe difference. Obviously, I looked at the pictures. One ofthe things is a gram is a lot smallerthan I envisioned it. Even though I've seenthem in trial, it's usually thejurythat gets to look at the evidence closely. I actually got to look at the evidence. A gram is a lot smaller than expected. Deputy Thurman nevertestified that the scale thathe used at the property room was certified. He did say he could have misreadthe scale or transposed the number. When the Court looks at the totality, all ofthe witnesses testified the envelopes appeared to be in the same condition, the pictures, also, showing the size and the actual drugs, themselves. Even the less than 6.2 grams is a small amount in consideration compared to what I had expected. The Court did note that. Deputy Thurman did say he wiped down the scale. Therewas nothing on it atthe time he weighed it. Deputy Hixson, Deputy Thurman and the crime lab, Mr. Allen, all testified that they all appeared to be in the same condition as when they had it. RP (Apr. 18,2013)at227-29. Aftertrial, the trial court entered no written findings offact orconclusions oflaw. AfterLarry Marquette filed his opening appellate brief, the trial court entered findings of 

### 14No. 31794-3-111 State v. Marquette

fact and conclusions oflaw for both the CrR 3.5 hearing and the trial. The findings for disputed facts at the CrR 3.5 hearing read, in relevantpart: 2. Mr. Marquette understood his Miranda rights. He testified that the reason that he said he didn'tunderstand his rights was because he was angry and knew that he was going tojail anyway. 3. Deputy Thurman did not offer anything to Mr. Marquette in exchange for his waiver ofrights. Deputy Thurman would have ordered an impound ofthe car so that he could apply for a search warrant. Deputy Thurman hadthe**~ight** to impound it for thatreason. Mr. Marquette said thathe couldn't afford to getthe car out ifitwere impounded. The deputy did not offer something to the defendantto get him to waive any rights. CP at 254. The trial court entered one conclusion oflaw for the CrR 3.5 hearing: The statements made by Mr. Marquette to Deputy Thurman were made after Mr. Marquette had been advised ofhis Miranda warnings and after Mr. Marquette made a knowing, intelligent and voluntary waiver of those rights, as shown by his signing the rights card. The statements are admissible at trial. CP at 254. LAW AND ANALYSIS Issue 

### 1: Whether the trialcourt's entry, after the appeal, offindings offactand conclusions of lawfor the trial andthe erR 3.5 hearingdemands relief on appeal for LarryMarquette? Answer 

### 1: No. Larry Marquette assigns errorto the trial court's failure to enter written findings of fact and conclusions oflaw at the end ofthe bench trial and after the hearing on his CrR 3.5 motion to suppress. The State responds thatthe assigned error is now moot since the 15No. 3l794-3-III State 

### v. Marquette

trial court laterentered findings and conclusions filed with this court after Marquette filed his opening brief. Marquette did not file a reply briefaddressing whether he still assigns

errorto the trial court's initial omissions. We agree with the State that the issue is moot. erR3.5(c) reads: Afterthe hearing, the court shall set forth in writing: (1) the undisputed facts; (2) the disputed facts; (3) conclusions as to the disputed facts; and (4) conclusion as to whetherthe statement is admissible and the reasons therefore. erR6.1(d) provides: In a case tried without ajury, the court shall enter findings offact and conclusions oflaw. In giving the decision, the facts found and the conclusions oflaw shall be separately stated. The court shall enter such findings offact and conclusions oflaw only upon 5 days' notice of presentation to the parties. Both court rules require entry ofwritten findings offact and conclusions oflaw after theirrespective hearings. The failure to enterwritten findings offact and conclusions oflaw as required by erR 6.1(d) requires remand for entry ofwritten findings and conclusions. State 

### v. Head, 136 Wn.2d 619, 624, 964 P.2d 1187 (1998). Reversal may be appropriate where a defendant can show actual prejudiceresulting from the absence offindings and conclusions orfollowing remand for entry ofthe same. Head, 136 Wn.2d at 624. This courtwill not infer prejudice from a delay ofentering such findings and conclusions. Head, 136 Wn.2d at 625. That burden lays with a defendant. Head, 136 Wn.2d at 625.

16No. 31794-3-III State 

### v. Marquette

A case is technically moot ifthe court can no longer providethebasic relief originally sought. Snohomish County v. State, 69 Wn. App. 655, 660, 850 P.2d 546 (1993). Here, the trial court entered written CrR6.1(d) and CrR 3.5(c) findings offact and conclusions oflaw onMay 1, 2014, andthe State timely added them to the appellate record. Remand serves nopurpose, since the trial court would repeat the same entry. Thus, the issue is moot. Larry Marquette has asserted no prejudice by reason oflate entry ofthe findings and conclusions, so reversal is notwarranted. Issue 

### 2: Whether the trial court erredin denyingMarquette's CrR 

### 3.6motion to suppress items obtainedin the warrantless search o/his car? Answer 

### 2: No. Larry Marquette contends the trial court erred in denying his motion to suppress the evidence obtained during the search ofhis car. Marquette specifically assigns errorto the trial court's written conclusion oflaw4: "Deputy Thurman advised the defendant of his Miranda and Ferrier warnings. The defendant consented to the search ofthe car. The evidence was seized afterthe defendant gave consent to search. There was no violation ofArizona v. Gant." CP at 131. Marquette argues: (1) Trooper Kristopher Stone's visual observation ofthe bag ofmethamphetamine on the car floorboard was not sufficientto justity a warrantless search ofMarquette's vehicle, and (2) Marquette's consent to search the vehicle was not given freely and voluntary. We rule that Trooper Stone's observations ofmethamphetamine inside the carrendered the search ofthe car lawful. 17No. 31794-3-111

. State v. Marquette Therefore, we affirm the trial court's denial ofMarquette's CrR 3.6 motionto suppress without addressing whether Marquette consentedtothe search. We review a trial court's denial ofa CrR 3.6 suppression motion to determine whether substantial evidence supports the trial court's challenged findings offact and, if so, whetherthe findings support the trial court's conclusions oflaw. State v. Cole, 122 Wn. App. 319, 322-23, 93 P.3d 209 (2004). Challenged findings entered after a suppression hearing that are supportedby substantial evidence are binding, and, where the findings are unchallenged, they are verities on appeal. State v. O'Neill, 148 Wn.2d 564,571,62P.3d 489 (2003). Larry Marquette does not challenge any ofthe findings of fact entered by the trial court upon denying the motion to suppress evidence. Therefore,

webase ourruling on the facts found by the lower court. Larry Marquette argues that Trooper Stone's and Deputy JeffThurman's observation ofa bag ofwhat appearedto be methamphetamine on the car floorboard during a safety check ofthe cardoes not satisty the open view exceptionto the warrant requirement ofarticle I, section 7 ofthe Washington Constitution. Marquette may be correct thatthe open view doctrine does not apply. Nevertheless, ifthe open view exception does not apply, the plain view exemption does. Searches conducted outside thejudicial process, without prior approval byjudge

ormagistrate, are per seunreasonable underthe FourthAmendment and article I, section 7 ofthe Washington State Constitution, subject only to a few specifically established and 18No. 31794-3-111 State 

### v. Marquette

well-delineated exceptions. Arizona v. Gant, 556 U.S. 332, 338, 129 S. Ct. 1710, 173 L. Ed. 2d485 (2009); State v. Duncan, 146 Wn.2d 166, 171,43 P.3d 513 (2002). Washington allows a fewjealously and carefully drawn exceptions to the warrant requirement, which include exigent circumstances, searches incident to an arrest, inventory searches, plain view searches, open view searches, and Terry investigative stops. Terry 

### v. Ohio, 392 U.S. 1,88 S. Ct 1868,20 L. Ed. 2d 889 (1968); State 

### v. Garvin, 166 Wn.2d 242,249,207 P.3d 1266 (2009). The State bears the burden of demonstrating that a warrantless seizure falls into a narrow exception to the rule. State 

### v. Doughty, 170 Wn.2d 57, 61, 239 P.3d 573 (2010). The plainview doctrine deems a seizure reasonable when: (1) there is a prior justification for intrusion by a law enforcement officer into the accused's sphere of privacy, (2) the officer inadvertently discovers contraband, and (3) the officer immediately knows the contraband is evidence ofa crime. State 

### v. Chrisman, 100 Wn.2d 814,819,676P.2d419 (1984); State v. Claflin, 38 Wn. App. 847, 853,690P.2d 1186 (1984). The plain view doctrine, however, does notjustify the initial intrusion into the protected area. State v. Kennedy, 107 Wn.2d 1, 9, 726 P.2d 445 (1986). The officermust have some legitimate reason to be in a place not open to the public. In contrast, underthe "openview" exception, the officer espies evidence ofa crime while in an area opento the public, alternatively**calle~** a nonconstitutionally protected area. State v. Seagull, 95 Wn.2d 898, 901-02, 632 P.2d 44 (1981). Ifan officer sees evidence ofa crime in a 

# I 1 19No. 31794-3-111 State v. Marquette public area, the officerhas noteven conducted a search for purposes ofthe constitution. State v. Kennedy, 107 Wn.2d at 10 (1986). InKennedy, our Supreme Court explained the difference between "plainview" and "open view." Whereas a "plainview" situation involves an officerviewing an item after a lawful intrusion into a constitutionally protected area, "open view" involves an observation from a nonconstitutionally protected area. State 

### v. Seagull, 95 Wn.2d 898, 901-02, 632 P.2d 44 (1981). Hence, ifan officer, aftermaking a lawful stop, looks into a car from the outside and sees a weapon or contraband in the car, he has not searched the car. Because there has been no search, article 

### [1], section 7 is not implicated. Once there is an intrusion into the constitutionally protected area, article 

### [1], section 7 is implicated and the intrusion mustbejustified ifit is made without a warrant. 107 Wn.2d at 10. (emphasis omitted). State Patrolman Kristopher Stone spotted the methamphetamine inside Larry Marquette's carbefore Deputy leffThurman sawthe drugs. Stone did not enter the car, but observedthe drug by looking inside the car. The car wasparked in a dirt lot and conceivably anyone couldwalkby the car, look inside, and notice the white crystalline substance. In otherwords, the evidence could have been in open view. To give Marquette the benefit ofthe doubt, however, we will analyze the seizure ofthe drug as if the plain view exemption applies. Under Washington case law, the plain view exemptionjustifiedthe search and seizure ofthe methamphetamine. Larry Marquette's failure to signal his tum supported

20No. 31794-3-111 State v. Marquette Deputy Thurman's stop ofMarquette's vehicle. Marquette's furtive move inside the car validated Trooper Stone's sweep ofthe area underMarquette's car seat. To sweep that area, Stone necessarily needed to approach the car. Thus, Stone wasjustifiedto benear

or against the carwhen he inadvertently sawthe whitepowderand immediately knew the powderto be methamphetamine. A Terry stop and frisk may extend into the car ifthere is a reasonable suspicion that the suspect is dangerous and may gain access to a weapon in the vehicle. State 

### v. Glossbrener, 146 Wn.2d 670,680,49 P.3d 128 (2002). When police conduct a Terrylike search ofa vehicle, the scope ofthe search shouldbe sufficient to assure the officer's safety. Kennedy, 107 Wn.2d at 12. A protective search for weapons mustbe objectively reasonable, though based onthe officer's subjectiveperception ofevents. Glossbrener, 146 Wn.2d at 681. InState v. Kennedy, the Supreme Court held an officer's search ofthe area under the driver's seat ofa carpulled over on suspicion ofits driverhavingjustpurchased marijuanawas reasonable as a Terry frisk. The officer observed the driver make a furtive movementpriorto beingpulled over, and a passenger sat in the front seat while the stop

was made. The Court held that ourconstitution allowed the officerto make a limited search ofthe passenger compartment to assure a suspectperson in the cardoes nothave

access to a weapon within the suspect's orpassenger's area ofcontrol. Kennedy, 107 Wn.2d at 13. Because the officerwas legitimately within the automobile's front seat, the 21No. 31794-3-111 State v. Marquette marijuana discovered in the officer's sweep under the seat fell under the plain view warrant exception. Fourteen years later, the Supreme Court refined this standard in Glossbrener, holding that an officer's Terry frisk ofa car after the officer witnessed the driver make a similar "furtive gesture" was not objectively reasonable based on the intervening actions ofthe officer and driver. Glossbrener, 146 Wn.2d at 681. The officer did not conduct the Terry frisk ofthecar until after Glossbrener told the officer that his movements were made in an attempt to hide an open container ofalcohol, the officer conducted a field sobriety test on Glossbrener and frisked his person, and the officer allowed Glossbrener to sit in the carwhile the officer checked for warrants. The Glossbrener Court contrasted Glossbrener's case with State 

### v. Larson, 88 Wn. App. 849, 856-57, 946 P.2d 1212 (1997), where this court upheld as reasonable an officer's Terry frisk ofa vehicle after the driver was out ofthe vehicle, where the officer

saw the driver make a similar furtive gesture prior to pulling over. The Court found the

cases distinguishable because, unlike in Glossbrener, Larson would have returned to his vehicle to retrieve his carregistration and could havegained access to a weapon the officer suspected he hid by the furtive gesture. Glossbrener, 146 Wn.2d at 684. Larry Marquette's case is more likeLarson than Glossbrener because, like Larson, Marquette was stopped for a traffic infraction, and would need to access his car again to retrieve his car's registration. Thurman would likely later allow Marquette to 22

### No. 31794-3-111 State 

### v. Marquette

drive away in his car. Although Marquette gave a nonthreatening reason for the furtive gesture upon pulling over and complied with Thurman's request to exit the car, this appeallacks the "intervening actions" that would lead an outsider to doubt an officer's objective concern for his safety. Thurman wasjustified in asking Trooper Stone to conduct a Terry frisk ofthe car to ensure it was free ofweapons. Issue 

### 3: Whether the trial court erredin admitting testimony about the chemical composition of evidence, when the arrestingofficer testifiedto a measurement of the controlledsubstance inconsistentwith the chemical lab 's measurement? Answer 3: No. At trial and on appeal, Larry Marquette contends thatthe trial court improperly admitted evidence ofthe methamphetamine and drug paraphernalia discovered during the search ofhis vehicle. He emphasizes a significant discrepancy between the weight ofthe methamphetamine recorded by Deputy JeffThurman andthe weight recorded at the Washington State Patrol's Crime Laboratory. He argues that the State must establish a chain ofcustody with sufficient completeness to render it improbable thatthe original items taken from the car had been exchanged with another orbeen contaminated or tamperedwith. Marquette contends thatthe weight discrepancy destroys the chain of custody. In response, the State ofWashington contends that gaps in the chain ofcustody go to weight, not admissibility. We agree with the State.



### 23No. 31794-3-111 State v. Marquette

Before a physical object connected with the commission ofa crime may properly be admitted into evidence, it must be satisfactorily identified and shown to be in substantially the same condition as when the crime was committed. Gallego v. United States, 276 F.2d 914,917 (9th Cir. 1960); State v. Campbell, 103 Wn.2d 1,21,691 P.2d 929 (1984). Factors to be considered include the nature ofthe article, the circumstances surrounding the preservation and custody ofit, and the likelihood ofintermeddlers tampering with it. State v. Campbell, 103 Wn.2d at 21. The proponent need not identify the evidence with absolute certainty and eliminate every possibility ofalteration or substitution. State v. Campbell, 103 Wn.2d at 21. Identity and condition ofan exhibit

are always subject to rebuttal. State v. Music, 79 Wn.2d 699,713,489 P.2d 159 (1971), vacated inparton othergrounds, 408 U.S. 940, 92 S. Ct. 2877, 33 L. Ed. 2d 764 (1972). Thejury is free to disregard evidence upon its finding that the article was notproperly identified or there has been a change in its character. State v. Campbell, 103 Wn.2d at 21. However, minor discrepancies or uncertainty on the part ofthe witness will affect only the weight ofevidence, not its admissibility. State v. Campbell, 103 Wn.2d at 21. The trial court is necessarily vested with a wide latitude ofdiscretion in determining admissibility, which will not be disturbed absent clear abuse. State v. Campbell, 103 Wn.2d at 21; Kiessling v. Nw. GreyhoundLines, Inc., 38 Wn.2d 289,295,229 P.2d 335 (1951). The State presented evidence showing the transfer ofcustody ofthe 24No. 31794-3-111 State v. Marquette methamphetamine from the Spokane Sheriff's Office to the Washington State Patrol's Crime Laboratory. This believable evidence defied suggestions that the methamphetamine measured by the laboratory was different from the methamphetamine seized from Larry Marquette's car. The trial court heard no testimony questioning the credibility ofthe crime lab chemist who tested and verified the methamphetamine. The trial court reviewed photos ofthe samples and the samples themselves, and determined that the discrepancy in measurements was likely one oftranscription by Deputy Thurman. The trial court was thus well within its discretion in admitting the exhibits. Larry Marquette urges this court to apply a more stringenttest in light ofState v. Roche, 114 Wn. App. 424, 59 P.3d 682 (2002). That case has little application here. In State v. Roche, this court granted James Roche a new trial after uncovered evidence showed thatthe Washington State Patrol chemist who testified in his case divested and ingested the heroin samples he tested at the crime lab. This court held that a rational trier offact could reasonably doubt the chemist's credibility, and thus the State needed to relay the foundation for admitting the test results against Roche at a new trial. State v. Roche is a unique and hopefully one-of-a-kind case. Other than the differences in measurements, the credibility ofthe lab chemist and arresting officer here

are not challenged with regard to taking the measurements. Contrary to Marquette's argument, no heightened standard should apply.

25No. 3 1 794-3-III State v. Marquette

Issue 

### 4: Whether sufficient evidence supporteda conviction forpossession with intent to deliver a controlledsubstance? Answer

### 4: Yes. Finally, Larry Marquette contends the State failed to meet its burden in proving he possessed methamphetamine with intentto deliver, in violation ofRCW 69.50.401. RCW 69.50.401(1) provides, in relevantpart: "Except as authorized by this chapter, it is unlawful for any personto manufacture, deliver, orpossess with intentto manufacture or deliver, a controlled substance." This assignment oferrorrepeats butrestates Larry Marquette's chain ofcustody argument. Marquette contends that the statute requires proofbeyond a reasonable doubt that possession and intentto deliver refer to the same quantity ofthe controlled substance in question, and that the State cannot meet this burden as the quantity reported by Deputy Thurman is substantially different than the amountreported by the Washington State Patrol Crime Laboratory. We reject the argument for the reasons given earlier. We also question the validity ofthe argument because Marquette fails to identity the measurement tobe used for purposes ofhis possession and the measurementto be used for purposes of his anticipated delivery. Evidence is sufficient if, viewed in the light most favorable to the State, any rational trier offact could find the essential elements ofthe crime charged beyond a reasonable doubt. State v. Robbins, 68 Wn. App. 873, 875, 846 P.2d 585 (1993). A 26No. 31794-3-III State 

### v. Marquette

defendant challenging sufficiency ofthe evidence at trial admits the truth ofthe State's evidence and all reasonable inferences therefrom. State v. Witherspoon, 180 Wn.2d 875, 883,329 P.3d 888 (2014). Larry Marquette is correctthat the State must prove a defendant possessed the

same controlled substance he intendedto deliver. Robbins, 68 Wn. App. at 876. However, the State metthatburden here. Although the two weighings of methamphetamine differed, the trial court consideredthe discrepancy and found it did not call into question the validity ofthe evidence. The trial court also considered the attendant circumstances and found the evidence sufficientto reasonably infer intentto deliver. Those circumstances included small baggies, a scale, cash, and a repeatedly ringing cell phone in Marquette's possession. Sufficient evidence supports the conviction. CONCLUSION We affirm the trial court's denial ofLarry Marquette's motion to suppress evidence and motion to suppress his inculpatory statement. We affirm his conviction.

27No. 31794-3-III 

### State v. 

### Marquette

A majority ofthe panel has determined this opinion will not beprinted in the Washington Appellate Reports, but it will be filed forpublicrecordpursuant to RCW 2.06.040.

WE CONCUR:



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