rIU 

### CDURT OF APPEALS DIVISIW4 11 

### 2015 

### AUG 7 1 

### AM 9: 08 STATE OF WASHINGTON,, 

### IN THE COURT OF APPEALS OF THE STATE 6*F WASItNGTON DIVISION II STATE OF WASHINGTON,

v. DAVID.CRAIG DICKJOSE, Respondent,

11 No. 43659 -1 - II

UNPUBLISHED OPINION
SUTTON, J. — 

### David Dickjose appeals from thetrial court's rulingthat his inculpatorypostarrest statements were admissible at trial. 

### He argues that the trial court erred in ruling that his
statements were sufficiently attenuated from his unlawful arrest. We hold that his arrest was 

### unlawful and, because the State intentionally abandoned its attenuation doctrine argument, his post -

arrest statements are inadmissible. We remand for further proceedings consistent with this opinion. FACTS I. SEARCH WARRANT EXECUTION This case has already been the subject of one appeal.' In December 2007, Lakewood Officer Sean Conlon obtained a search warrant to search Dickjose' s home in connection with his investigation of Dickjose for unlawful possession and 

### delivery of methamphetamine. 2 On 

### State v. Dickjose, noted at 160 Wn..App. 1011, 2011 WL 1005552. 2 Officers had conducted three different controlled buys 

### involving Dickjose. The parties do not dispute facts relating to these controlled buys.No. 43659 -1 - II

December 13, at about 7: 00 AM, police .officers executed the search warrant. The warrant authorized entry and search of:

The residence: 18111 41st AV E, Tacoma, WA 98446. 18111 41st AV E is listed as a two acre parcel. The residence appears to be a blue double wide manufactured home. There are also two detached garages, One four car garage and 

### one appears to be an RV/shop type garage. All outbuildings, trailers and vehicles on the property. The person: A W/M known as David C. Dickjose, 05- 26-67. Clerk' s Papers (CP) at 19. The search warrant did not contain authorization to arrest Dickjose.

Conlon first contacted Dickjose inside the home about 10 minutes after officers entered the home. Conlon read Dickjose his Miranda' rights and Dickjose waived those rights. About a half 

### hour later,officers found methamphetamine in Dickjose' s home and in hisvehicle onthe property. Conlon then spoke with Dickjose a second time. 

### Dickjose denied knowing anything about the methamphetamine. 

### Conlon told Dickjose that he was under arrest for delivery of methamphetamine and that Conlon had probable cause to arrest him for that offense; Dickjose denied having delivered methamphetamine. 

### Within the hour after the officer's initial entry into Dickjose's home, Conlon spoke to Dickjose athird time while Dickjose was still at home, in handcuffs, and under arrest. Conlon told Dickjose he believed he 

### was " 

### a fairly large methamphetamine dealer" based on the amount of methamphetamine recovered and " 

### gave him an opportunity to help himself out and to order 

### narcotics" from his dealer in exchange for not booking him intojail that night. Verbatim Report

3 Miranda v.Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966). 2No. 43659 -1 - II

of Proceedings (VRP) (

### May 11, 2012) at21. Dickjose agreed and "said thathe could help himself out" by ordering a pound ofmethamphetamine. VRP at21. Conlon then took Dickjose to the police station around 10: 00 or 11: 00 AM. There, the two 

### further discussed Dickjose' s drug dealing activities and arranged to purchase a pound of methamphetamine from Dickjose' s supplier. 

### Dickjose admitted to dealing methamphetamine at
about half a pound at a time and that his supplier was a " large Hispanic male." VRP at 23. At the agreed upon location, Dickjose identified his supplier. Conlon did not book Dickjose intojail that night based on their agreement. II. PROCEDURE 

### The State charged Dickjosewiththree counts ofunlawful delivery ofacontrolled substance methamphetamine) and one count ofunlawful possession ofa controlled substance with intentto deliver (methamphetamine). 

### Dickjose movedto suppressthe physical evidence found inhis home. The trial court denied his motion. We granted Dickjose's request for interlocutory discretionary review and reversed the trial court' s denial ofthe motion to suppress, holding that the affidavit 

### supporting the search warrant did not contain sufficient facts to establish a " nexus" between the place to be searched, Dickjose' s home, and evidence ofthe crimes forwhich Dickjose was charged 

### with committing. State v. Dickjose, 2011 WL 1005552, at * 7. On remand, the trial court granted Dickjose' s motion to suppress the evidence found in 

### Dickjose' s vehicle because there was an insufficient nexus between the crimes being investigated
and the vehicles on the property. Dickjose also moved to suppress his post - arrest statements, 

### arguing thathisarrestwas unlawful becausewehadheldthesearchwarrant invalidastohis home. Thetrial court ruled that Dickjose' s arrestwas unlawful,butthat his statements made atthe police 3No. 43659 -1 - II



### station were sufficiently attenuated from the illegal entry into his home and unlawful arrest and therefore admissible. The trial court's factual findings did not mention the inculpatory statements Dickjose made at home. 

### Dickjose sought and we granted discretionary review of the trial court's denial of his
motion to suppress his post - arrest statements. 

### In its cross - appellate brief, the State expressly
abandons its argument, made below, that Dickjose' s statements are admissible under the attenuation doctrine. ANALYSIS 1. RECORD SUFFICIENT FOR REVIEW 

### The State first argues thatthe record is incomplete, preventing review, because it contains 

### only one oftwo days oftestimony on the suppression hearing and does not contain atranscript of the trial court' s oral ruling on the motion to suppress.' These omissions do not preclude our
ItaIrlWAV

### The party claiming error holds the burden to provide an adequate record for our review. State v. Sisouvanh, 175 Wn.2d 607, 619, 290 

### P.3d 942 (2012). 

### A responding party who believes 

### the record is inadequate may supplement the record and request the appellant pay for that cost. RAP 9. 2( c). A respondent who claims that review must be denied for an incomplete record must 

### explainthe significance ofthe missing piece ofrecord. Favors v. Matzke, 53 Wn.App. 789, 794, 770 P. 2d 686 ( 1989), review denied, 113 Wn.2d 1033. Here, the State did not move to supplement 

### The State argues thatthe commissioner improvidently granted review. Butthe State did notfile a motion to modify the commissioner' s ruling granting review under RAP 17.7. Thus, the commissioner' s ruling granting 

### discretionary review is final. 

### Hough v. Ballard, 108 Wn. App. 272, 277, 31 P. 3d 6 (2001). 11No. 43659 -1 - II



### the record and does not explain why Dickjose's failure to provide the second day of testimony prevents adequate review. We conclude that the record is sufficient for our review. Thus, the State' s argument fails. II. ADMISSIBILITY OF DICKJOSE' S INCULPATORY STATEMENTS A. Standard of Review 

### We review a trial court' s ruling on a motion to suppress evidence to determine whether substantial evidence supports the trial court's findings of fact and whether the findings of fact support the trial court' s conclusions of law. State v. Russell, 180 Wn.2d 860, 866, 330 P.3d 151 2014). 

### We review conclusions oflaw de novo to determine ifthey are supported by the findings offact. Russell, 180 Wn.2d at 867. Substantial evidence is evidence that is sufficient "`to persuade

a fair- minded person of the truth ofthe stated premise."' 

### Russell, 180 Wn.2d at 866-67 (quoting State v. Garvin, 166 Wn.2d 242, 249, 207 P. 3rd 1266 (2009)). Unchallenged findings offact are
verities on appeal. State v. Homan, 181 Wn.2d 102, 106, 330 P. 3d 182 ( 2014). We review a
conclusion of law that is mislabeled a 

### finding of fact as a conclusion of law. State v. Green, . 

### 177 Wn.App. 332, 341 n.7, 312 P.3d 669 (2013). The trial court ruled that because the search warrant was invalid to enter Dickjose's home 

### underour previous holding in Dickjose, the officers lacked authority to arresthim in his home as

5No. 43659 -1 - II



### well.5 Thetrial courtmischaracterizedthis decision as afinding offactbecausethe determination ofwhether an encounter between police and a defendant constitutes . a constitutional violation is.a 

### question oflawthat we review de novo. State v. Budd, 186 Wn. App. 184, 347 P.3d 49 (2015). B. Dickjose' s Unlawful Arrest 

### Dickjose argues thatthe trial court properlydecided that his arrest was unlawful because it
cannot be " 

### untethered" from the unlawful entry into his home pursuant to the search warrant. Br. of Appellant at 8. We agree.

The Fourth Amendment protects against unreasonable searches and seizures. U.S. CONST. amend. IV. Our state constitution provides, " No person shall be disturbed in his private affairs, or his home invaded, without authority of law." WASH. CONST. art. I, § 7. The sanctity of the home " 

### is perhaps most deserving of constitutional protection against police intrusion" under both the Washington Constitution and its federal counterpart. State v. Hatchie, 161 Wn.2d 390, 39. 7, 166 P. 3d 698 ( 2007). 

### An arrest is unquestionably a seizure ofthe person 

### arrested. Hatchie, 161 Wn.2d at 395. To lawfully arrestaperson in his orherhome absentexigent circumstances, under federal and Washington State law, a police officer must have ( 1) a warrant 

### for a suspect's arrest supported by probable cause and (2) reason to believe the suspect is inside
5 In its conclusions oflaw,thetrial court statedthat (1) Dickjose had received his Mirandawarning 

### at home " before making his initial exculpatory statements to Officer Conlon while at his house," 2) Dickjose was removed to the police station where Conlon promised to not book him into jail 

### that night if he would make statements about his involvement in drug dealing and identify his supplier; and (3) Dickjose then confessed. CP at 60-61. The trial court then concluded that "[ t]he State ha[d] met its burden to show that [ Dickjose' s] subsequent statement was sufficiently 

### attenuated from the illegal entry into his home, and that the officer's promise not to take him to 

## jailwas significantly intervening todissipate anytaintofthe entryintothe house. The statements Dickjose] made at the police station are admissible at trial." CP at 61. 31No. 43659 -1 - II

the home. Hatchie, 161 Wn.2d at 395- 96 ( citing Payton v. New York, 445 U.S. 573, 603, 100 S. Ct. 1371, 63 L. Ed. 2d 639 ( 1980)). 

### The State argues that Dickjose was lawfully arrested because the search warrant allowed 

### the officers to search for Dickjose' s person and once they were in the house they could arrest him based on probable cause that he had committed a crime. This argumentvitiates the long-standing 

### rule that, absent exigent circumstances, a person may be arrested in his or her home only with an 

### arrest warrant supported by probable cause. State v. Hoffman, 116 Wn.2d 51, 101, 804 P.2d 577 1991). 

### An arrest warrant provides a police officer with limited authority in,regard to a person's 

### home: They may enter onlyto seizethe person and must immediately leave. Hatchie, 161 Wn.2d at 400. The State' s argument greatly minimizes the basis of this rule — 

### the sanctity ofthe home — 

### and attemptstofill thegap betweenasearchwarrant,whichwe heldwas invalidto enterDickjose' s home, and his arrest. Hatchie, 161 Wn.2d at 397. Because the search warrant was unsupported 

### by a sufficient nexus between Dickjose's home and the evidence related to unlawful delivery or possession 

### by Dickjose, the State lacked authority to enter Dickjose' s home at all. Furthermore, 

### Conlon arrested Dickjose only after the officers recovered the methamphetamine,which has now been suppressed under our 

### holding that the warrant was invalid as to Dickjose' s home. The 

### officers gained entry into Dickjose' s home onlythrough the invalid search warrant. Thus, the trial court correctly concluded that Dickjose's arrest was unlawful. 

### We hold that because the officers gained entry into Dickjose's house only through an invalid search warrant, Dickjose' s arrest in his home was unlawful. We further hold that because

7No. 43659 -1 - II
the State 

### intentionally abandoned. its attenuation doctrine argument, Dickjose' s post - arrest statements are inadmissible. We remand for further proceedings consistent with this opinion. 

### 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 in accordance with RCW 2.06.040, it is so ordered.

We concur: Y SUTTON, J.
J ) HANSON, C.J.

s ' BJOR SEN, .... J.— --

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