FILED 


JULY 14,2015 


In the Office of the Clerk ofCourt 


WA State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


STATE OF WASHINGTON, ) No. 32097-9-111 

) 

Respondent, ) 

) 

v. ) 

) 

MICHAEL R. WILLIAMS, ) UNPUBLISHED OPINION 

) 

Appellant. ) 

BROWN, J. - Michael Williams appeals his conviction for possessing a controlled 

sUbstance (methamphetamine) with intent to deliver. He contends the trial court erred 

in denying his CrR 3.6 evidence suppression motion. He argues his mother, Tamatha 

Root, was functioning as a state agent when giving his backpack to an investigating 

officer at Mr. Williams' rollover injury accident scene. Given the uncontested findings of 

fact, the court did not err in concluding Ms. Root acted voluntarily. We affirm. 

FACTS 

On June 12, 2012, Mr. Williams rolled his parents' truck. Spokane Police Officer 

Dustin Howe responded to the accident scene where Mr. Williams was being treated by 

medics. The officer spoke to Mr. Williams and asked for his driver's license, 

registration, and proof of insurance for the accident report. Mr. Williams did not have 
No. 32097-9-111 

State v. Williams 

the information on him. Ms. Root was standing near Mr. Williams. Officer Howe asked 

Ms. Root if she knew where her son's driver's license, registration, and insurance were. 

She responded that the documents were either on her son, in the vehicle, or in his 

backpack. After searching for the documents in the spilled over debris from the truck, 

Officer Howe informed Ms. Root he could not find the documents. Ms. Root stated the 

items must be in the backpack. Officer Howe expected Ms. Root to check in Mr. 

Williams' backpack; however, she handed the backpack to him and asked him to look in 

it. As soon as Ms. Root handed over the backpack, Officer Howe could see a number 

of baggies containing what he believed was methamphetamine in an open backpack 

pocket. The pocket contained clear plastic baggies, a digital scale, and a pipe. 

The State charged Mr. Williams with one count of possession of 

methamphetamine with intent to deliver. Mr. Williams moved to suppress the evidence 

under erR 3.6, arguing it was discovered as the result of a warrantless search and Ms. 

Root lacked authority to consent to the search. The State responded the officer had not 

coerced Ms. Root into handing over the backpack or requested to search the backpack. 

The State argued, "[Officer Howe] was asked to search by Ms. Root. It was open view, 

plain view, because he had a right to be there." Report of Proceedings at 74. The court 

found the officer's testimony more credible than Ms. Root's testimony, and found and 

concluded, "Law enforcement did not initiate or request a search in this case. The 

officer was given the backpack by Ms. Root and told to look in it. That is not a violation 

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No. 32097-9-111 

State v. Williams 

of any constitutional rules." Clerk's Papers at 147. Following a bench trial, the court 

convicted Mr. Williams as charged. He appealed. 

ANALYSIS 

The issue is whether the trial court erred in denying Mr. Williams' CrR 3.6 motion 

to suppress the evidence seized. Mr. Williams contends the trial court should have 

suppressed the drug evidence because his mother was acting as a state agent when 

she handed the backpack to Officer Howe and did not consent to any search. At the 

outset, we note Mr. Williams did not raise any state agent arguments below. In general, 

we do not address issues raised for the first time on review. RAP 2.5(a). His sole focus 

at the suppression hearing was consent. We examine his arguments in that context. 

We review a suppression ruling to determine whether substantial evidence 

supports the challenged findings of fact and whether the findings of fact support the 

conclusions of law, which are reviewed de novo. State v. Armenia, 134 Wn.2d 1, 9, 948 

P.2d 1280 (1997). Here, they do. 

The Fourth Amendment to the United States Constitution and article I, section 7 

of the Washington Constitution both protect an individual's right against unreasonable 

searches and seizures by police. State v. Young, 123 Wn.2d 173, 178,867 P.2d 593 

(1994). Article I, section 7 of the Washington Constitution specifically protects "those 

privacy interests which citizens of this state have held, and should be entitled to hold, 

safe from governmental trespass absent a warrant." State v. Myrick, 102 Wn.2d 506, 

511,688 P.2d 151 (1984) (Harlan, J., dissenting». A warrantless search or seizure is 

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No. 32097-9-111 

State v. Williams 

considered per se unconstitutional unless it falls within one of the few exceptions to the 

warrant requirement. State v. Ladsen, 138 Wn.2d 343,349,979 P.2d 833 (1999). 

"As a general rule, neither state nor federal constitutional protections against 

unreasonable searches and seizures are implicated, without state action." State v. 

Carter, 151 Wn.2d 118, 124,85 P.3d 887 (2004). Thus, the Fourth Amendment and 

article I, section 7 apply only to searches by state actors, not those of private actors. 

Carter, 151 Wn.2d at 124. However, constitutional protections may apply "if the private 

person functions as an agent or instrumentality of the State." State v. Clark, 48 Wn. 

App. 850, 856, 743 P.2d 822 (1987). In other words, "law enforcement officers cannot 

use private citizens to obtain evidence without a search warrant where a search warrant 

would otherwise be required." State v. Swenson, 104 Wn. App. 744, 754, 9 P.3d 933 

(2000). The defendant bears the burden of showing a private citizen who provides 

evidence to the government was acting as agent of the government. State v. Clark, 48 

Wn. App. 850, 855, 743 P.2d 822 (1987). 

Whether a person is acting as a state agent depends on the particular facts. 

Clark, 48 Wn. App. at 856. The government must be directly involved in the search or 

indirectly involved as an encourager or instigator of the private person's actions. Id. A 

private citizen acts as a governmental agent of the state where the state has in some 

way "instigated, encouraged counseled, directed, or controlled" the actions of that 

individual. State v. Agee, 15 Wn. App. 709, 713-14, 552 P.2d 1084 (1976), aff'd, 89 

Wn.2d 416,573 P.2d 355 (1977). Two key considerations in the "state agent" analysis 

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No. 32097-9-111 

State v. Williams 

are whether the government was aware of and acquiesced in the intrusive conduct and 

whether the private citizen intended to assist law enforcement or further the private 

citizen's own ends. Clark, 48 Wn. App. at 856. U[T]here is no bright line that 

distinguishes instances of 'government' conduct from instances of 'private' conduct." 

United States v. Miller, 688 F.2d 652,656 (9th Cir. 1982). Not all contacts between 

police and a private individual make that person a state agent. State v. Walter, 66 Wn. 

App. 862, 866, 833 P.2d 440 (1992). An attempt to aid the government does not 

change a private search into a governmental search. State v. Ludvik, 40 Wn. App. 257, 

263,698 P.2d 1064 (1985). 

Here, the uncontested suppression findings are verities on appeal. State v. Hill, 

123 Wn.2d 641,870 P.2d 313 (1994). Ms. Root told officers herson's driver's license, 

registration and insurance card were either on her son, in the vehicle, or in his 

backpack. Ms. Root possessed her son's backpack. Officer Howe knew Mr. Williams 

did not have the information. He went over the accident scene and checked the spilledover debris. He did not find the documents. The officer returned to Ms. Root and told 

her he could not find the documents and then Ms. Root told the officer they must be in 

the backpack. Officer Howe expected she would look in the backpack for the items. 

But instead, Ms. Root handed him the backpack and told him to look for the items: "The 

court finds that Ms. Root did ask the officer to look in the backpack." CP at 147. When 

Ms. Root handed Officer Howe the backpack, he immediately noticed one of the 

pockets was unzipped. He could see several clear plastic baggies with a blue 

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No. 32097-9-111 

State v. Williams 

crystalline substance that the officer, based on his training and experience, believed to 

be methamphetamine. In the pocket were several clear plastic baggies, a black digital 

scale and a clear glass drug smoking pipe. The officer did not ask for consent to search 

the backpack. 

Given the facts, the trial court did not err in concluding Ms. Root voluntarily 

handed over the backpack to Officer Howe. The spontaneous act was not done in 

response to any request for consent to search the backpack. The mere purpose to aid 

the government is not enough to turn an otherwise private search into a government 

search. State v. Sweet, 23 Wn. App. 97, 99, 596 P.2d 1080 (1979). Nothing in the 

record indicates Ms. Root was working for the police or otherwise in a position to be a 

state agent. The methamphetamine was in open view; contraband viewed when an 

officer is standing in a lawful vantage point is not protected. State v. Neeley, 113 Wn. 

App. 100, 109,52 P.3d 539 (2002). Officer Howe immediately observed the 

methamphetamine in an open pocket when Ms. Root handed over the backpack. The 

officer was permitted to seize the contraband and view the remaining evidence. 

In conclusion, based on the uncontested findings of fact, Mr. Williams failed to 

show his mother acted as a government agent when voluntarily handing Mr. Williams' 

backpack to the officer. The trial court found the officer did not ask to search the 

backpack and thus, consent was not requested and is not an issue here. Because the 

contraband was in open view, no unlawful search occurred. The trial court did not err in 

denying Mr. Williams' erR 3.6 suppression motion. 

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No. 32097-9-111 

State v. Williams 

Affirmed. 

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040. 

~)Aa-. Brown, A.C.J. 

WE CONCUR: 

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