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Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

STATE OF WASHINGTON,                                             No.  40914-3-II

                             Respondent,

       v.

JOSEPH DEAN HUDSON,                                        UNPUBLISHED OPINION

                             Appellant.

       Worswick, A.C.J.  --  A jury found Joseph Hudson guilty of vehicular homicide and 

vehicular assault based on a car crash that killed one of his passengers and injured two others.  

Police were not certain who was driving the vehicle, so they arrested all of the surviving 

occupants and tested them for blood-alcohol levels.  Hudson appeals, arguing that he was arrested 

without probable cause and that evidence obtained from his arrest should have been 

suppressed.  Because the police did not have individualized probable cause to arrest Hudson, we 

agree and reverse and remand for a new trial.1

1 Hudson also argues that (1) the trial court issued insufficient findings and conclusions based on 
insufficient evidence to justify admission of his post-arrest statements, (2) the admission of a 
recorded jail phone call violated the Privacy Act, (3) the results of a blood test were admitted 
without adequate foundation and in violation of the confrontation clause, (4) he received 
ineffective assistance of counsel, (5) there was insufficient evidence to support a special verdict 
finding an egregious lack of remorse, and (6) the trial court gave an erroneous unanimity 
instruction regarding the special verdict.  In a statement of additional grounds, Hudson argues 
that the witnesses against him were not credible and that the trial court improperly excused a 
witness from the stand.  Because we reverse based on probable cause, we do not address these 
arguments. 

No.  40914-3-II

                                            FACTS

       After a night of drinking, Hudson, Paula Charles, Tommy Underwood, and Leon Butler

left a bar in Charles's car.  According to Butler, Hudson was driving, Charles was in the front 

passenger seat, Tommy Underwood was in the rear driver's side seat and Butler was in the rear 

passenger side seat.

       The car crashed.  The first witness to arrive on the scene found Tommy Underwood 

dying, Charles and Butler injured, and Hudson gone from the scene.  Hudson returned to the 

scene approximately two hours later and got into an altercation with a bystander on the scene who 

accused Hudson of being the driver.  Hudson had grass and debris in his hair and his clothes were 

dirty.  Hudson stated that he was just up the road and had noticed the emergency lights and had 

come over to see what was going on.  Butler and Charles were transported to the hospital.

       Sergeant Ramirez, the officer in charge of the scene, instructed Trooper Joshua Mullins to 

go to the Grays Harbor Community Hospital and to contact Charles and Butler for blood draws.  

He also instructed Trooper Ben Blankenship to arrest Hudson, which Trooper Blankenship did.

       After his arrest, Hudson gave Trooper Blankenship a statement that Trooper Blankenship 

later characterized at Hudson's CrR 3.5 hearing as constantly changing, saying several times that 

Hudson did not know who had been the driver, and also that Charles had been the driver.  

Detective Dan Presba later interviewed Hudson and photographed his injuries.  Hudson admitted 

to Detective Presba that he had been the driver and he complained that his stomach hurt.

       Hudson made a phone call to Nancy Underwood, Tommy Underwood's sister, from the 

jail.  In the call, which the jail recorded, Hudson told Nancy Underwood that he had taken 

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No.  40914-3-II

responsibility for the accident but that he could not remember who had been driving.

       The State charged Hudson with vehicular homicide and vehicular assault.  At trial, 

Trooper Blankenship testified that when he interviewed Hudson post-arrest, Hudson was 

"evasive" and gave a "jumbled" account stating that Charles and he were in the back seat and also 

stating that Charles was in the front passenger seat.  2 Report of Proceedings (RP) at 177-78.  

Trooper Blankenship testified that Hudson was highly intoxicated.

       Detective Presba, a crash reconstruction expert, testified that Hudson's injuries were 

consistent with Hudson having been the driver.  Hudson had an injury to his right knee consistent 

with a mark on underside of the driver's side dashboard, which showed his knee had struck the 

dashboard.  Moreover, DNA analysis of blood found on the inside of the driver's side door 

matched Hudson, showing that he opened the driver's side door to exit the vehicle.  

       Detective Presba also testified about Hudson's statements.  Detective Presba testified that 

Hudson said, "I was driving and I'll take responsibility."  2 RP at 201.  Detective Presba further 

testified that Hudson complained that his stomach hurt, consistent with Hudson's stomach 

impacting the steering wheel.  The State played the recording of Hudson's phone conversation 

with Nancy Underwood.

       Hudson testified that he had had a great deal to drink.  He testified that he had no memory 

of leaving the bar and that his next memory was of walking down the road, believing he had been 

kicked out of the car.  He further testified that he told the police he would take responsibility for 

the crash although he could not remember who was driving.  But Hudson testified that he could 

not have been the driver because Tommy Underwood would not have gotten into the car with 

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No.  40914-3-II

Hudson driving when Hudson was blacked out.

       The jury found Hudson guilty of vehicular homicide and vehicular assault as charged.  

Hudson appeals.

                                          ANALYSIS

                                        Probable Cause

       Hudson argues for the first time on appeal that he was arrested without probable cause 

and therefore the trial court erred by admitting evidence obtained after he was arrested.  We hold 

that Hudson raises a manifest constitutional error that may be reviewed for the first time on 

appeal. We further hold that he was arrested without probable cause and admission of the 

evidence obtained from this arrest was not harmless.  We accordingly reverse Hudson's 

convictions and remand for a new trial.

A.     Manifest Error

       Although Hudson raises the issue of probable cause for the first time on appeal, manifest 

error affecting a constitutional right may generally be raised for the first time on appeal under 

RAP 2.5(a)(3).  There is no dispute that a warrantless arrest without probable cause is 

constitutional error.  But in order to show that the error is "manifest," there must be a sufficient 

record for us to review.  See State v. Kirkpatrick, 160 Wn.2d 873, 880-81, 161 P.3d 990 (2007)

overruled on other grounds by State v. Jasper, ____ Wn.2d. ____, 271 P.3d 876 (2012).

       "Manifest" error is error that resulted in actual prejudice.  State v. O'Hara, 167 Wn.2d 91, 

99, 217 P.3d 756 (2009) (quoting State v. Kirkman,  159 Wn.2d 918, 935, 155 P.3d 125 (2007)).  

Actual prejudice is demonstrated by showing practical and identifiable consequences at trial.  

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No.  40914-3-II

O'Hara, 167 Wn.2d at 99.  To distinguish this analysis from that of harmless error, "the focus of 

the actual prejudice must be on whether the error is so obvious on the record that the error 

warrants appellate review."  O'Hara, 167 Wn.2d at 99-100. 

       Here, the record regarding probable cause is sufficient for us to determine that the 

asserted error is manifest.  The facts relevant to probable cause were not brought out at Hudson's 

CrR 3.5 suppression hearing.  But at trial, Sergeant Ramirez, the officer who made the decision to 

arrest Hudson, testified candidly about the basis for the arrest:

       A.     To my knowledge, at least I know for sure that I directed Trooper 
              Blankenship to take a blood sample from Mr. Hudson.  And then I directed 
              Trooper Mullins  to take -- go to the Community Hospital and contact 
              Butler and -- and Paul -- I -- the other two were in the ambulances that I had 
              previously contacted, I asked him to go to the hospital and contact them, 
              draw blood as well.  We did not know who the driver of the vehicle was so 
              I asked him to establish probable cause for an arrest and special evidence 
              warnings.
       Q.     Okay.  Is this routine procedure to get blood draws of everybody that's 
              involved in the collision?
       A.     It's not routine.  It's routine if you can establish who the driver is.  Usually 
              that's when you narrowly focus on -- you have to establish your probable 
              cause as to somebody [sic] been drinking or impaired by something and 
              then you'll  gather that fleeting evidence or the blood, if you will, to be 
              analyzed.  But since we had people ejected, we didn't have any -- at least as 
              far as we had so far, which is in the early stages of the investigation, we 
              didn't have people that were narrowed as to who was driving.  We couldn't 
              figure any of that out initially, but the blood is, you know, that fleeting
              evidence that's going away as -- as time goes by.  We needed to obtain that 
              and the sooner the better.  So we had to go ahead and initiate on 
              everybody and then as we were able to eliminate folks who were 
              passengers and narrow in on who might be the driver, then we can.      But 
              that way we'll have the blood from everybody.  So in this case I had to 
              make that call that we get blood from all three.

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No.  40914-3-II

1 RP at 43-44 (emphasis added).  On cross examination, Sergeant Ramirez testified that he did 

not know any information that would be relevant to determining who the driver was when he 

ordered Hudson's arrest, such as the car's owner, the seat position, or who had the keys.  He also 

admitted, "Since it was unknown who was driving I decided to obtain fleeting evidence and worry 

about who was driving later."  1 RP at 51.

       This ample record on probable cause is sufficient to determine that the error is manifest.  It 

actually prejudiced Hudson by allowing the admission of the evidence obtained from his arrest, 

and is so obvious on the record that it warrants appellate review.  We accordingly address 

probable cause for the first time on appeal under RAP 2.5(a)(3).

B.     Lack of Probable Cause

       Under article I, section 7 of the Washington Constitution, warrantless searches or seizures 

are presumed invalid.  State v. Grande, 164 Wn.2d 135, 141, 187 P.3d 248 (2008).  The State 

bears the burden to show that an exception to the warrant requirement applies.  Grande, 164 

Wn.2d at 141.  One such exception is that police may make warrantless arrests based on probable 

cause to believe that the arrestee has committed a felony.  RCW 10.31.100; see State v. Walker, 

157 Wn.2d 307, 319, 138 P.3d 113 (2006) (holding RCW 10.31.100 constitutional).

       Probable cause exists when the arresting officer knows of facts and circumstances 

sufficient to justify a reasonable belief that an offense has been committed.  State v. Vasquez, 109 

Wn. App. 310, 318, 34 P.3d 1255 (2001).  This inquiry is based on the factual considerations that 

a prudent person would rely on, rather than any legal technicalities.  State v. Bellows, 72 Wn.2d 

264, 266-67, 432 P.2d 654 (1967).  But probable cause must be based on more than a bare 

                                               6 

No.  40914-3-II

suspicion of criminal activity.  State v. Terrovona, 105 Wn.2d 632, 643, 716 P.2d 295 (1986).

       In Grande, 164 Wn.2d at 145-46, our Supreme Court held, 

       Our state constitution protects our individual privacy, meaning that we are free 
       from unnecessary police intrusion into our private affairs unless a police officer can 
       clearly associate the crime with the individual. . . . Unless there is specific evidence 
       pinpointing the crime on a person, that person has a right to their own privacy and 
       constitutional protection against police searches and seizures.

Based on this rule, the Grande court held that a police officer lacked probable cause to arrest two 

occupants of a vehicle when he smelled marijuana emanating from the vehicle without establishing 

individualized probable cause as to either occupant.  164 Wn.2d at 146.

       The situation here is analogous. According to Sergeant Ramirez's forthright testimony, 

the police had no reason to suspect that any particular one of the surviving occupants of the 

vehicle had been the driver.  Instead, Sergeant Ramirez decided to order Hudson's arrest to 

preserve fleeting blood-alcohol evidence.  Just as in Grande, this arrest was made without 

individualized probable cause and was unconstitutional.

C.     Not Harmless Error

       Washington's exclusionary rule requires suppression of unconstitutionally obtained 

evidence.  State v. Doughty, 170 Wn.2d 57, 65, 239 P.3d 573 (2010) (quoting State v. Garvin, 

166 Wn.2d 242, 254, 207 P.3d 1266 (2009)).  Accordingly, given that the police lacked probable 

cause to arrest Hudson, the evidence obtained as a result of his arrest should have been 

suppressed.  And we hold that admission of this evidence was not harmless and thus requires 

reversal.

       Constitutional error is harmless when we are convinced beyond a reasonable doubt that 

                                               7 

No.  40914-3-II

the error did not affect the verdict.  State v. Brousseau, 172 Wn.2d 331, 363, 259 P.3d 209 

(2011).  Put another way, an error is harmless beyond a reasonable doubt if the overwhelming 

untainted evidence necessarily leads to a finding of guilt.  State v. Davis, 154 Wn.2d 291, 305, 

111 P.3d 844 (2005); State v. Guloy, 104 Wn.2d 412, 426, 705 P.2d 1182 (1985).

       The State introduced several pieces of evidence as the fruits of Hudson's arrest: (1) 

Hudson's evasive and inconsistent statements to Trooper Blankenship, (2) his blood-alcohol level, 

(3) his admission of guilt and statement that his stomach hurt to Detective Presba, (4) 

photographs of and testimony about Hudson's injuries, and (5) a recording of Hudson's phone 

call from the jail.

       The other evidence the State presented to show Hudson's guilt included (1) Butler's 

testimony that Hudson was the driver, (2) Hudson's blood on the inside driver's side door, and 

(3) Detective Presba's accident reconstruction concluding that Hudson was the driver. But Leon 

Butler made a prior inconsistent statement that Tommy Underwood was the driver.  Also,

Hudson could have exited the vehicle through the driver's side door without having been the 

driver, and Hudson presented his own accident reconstruction specialist who disagreed with 

Detective Presba's conclusion. Moreover, Hudson testified that he was not the driver because 

Tommy Underwood would not have gotten into the car if Hudson was blacked out and driving.  

Consequently, the untainted evidence that Hudson was the driver was not overwhelming.

                                               8 

No.  40914-3-II

       Because Hudson was arrested without probable cause and because admittance of evidence 

obtained after his arrest was not harmless beyond a reasonable doubt, we reverse Hudson's 

convictions and remand for a new trial.

       A majorityof 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.

                                                                Worswick, A.C.J.
We concur:

Armstrong, J.

Van Deren, J.

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