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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )       No. 66143-4-I
                                            ) 
                      Respondent,           )       DIVISION ONE
                                            ) 
       v.                                   )
                                            )       UNPUBLISHED OPINION
MICHAEL ROOSEVELT SMITH,                    )
                                            ) 
                      Appellant.            )       FILED: April 2, 2012

       Spearman, J.  --  Michael Smith appeals his convictions for two counts of delivery 

of heroin, one count of possession of heroin with intent to deliver, and one count of 

possession of buprenorphine, a controlled substance. We reverse the possession 

convictions because they arose from an unlawful search of Smith's apartment. Despite 

the erroneous admission of evidence in support of the possession crimes, we affirm the 

delivery convictions because the evidence supporting them was overwhelming. 

Affirmed in part, reversed in part, and remanded.  

                                            FACTS

       In June 2009, a confidential informant told Bellingham police officers that she was 

selling heroin for Michael Smith. She described how Smith kept his heroin and cash 

inside a lockbox in a walk-in closet in his bedroom. Several months later, the police  

No. 66143-4-I/2

arranged two "controlled buy" operations, wherein the informant of the police purchased 

heroin from Michael Smith on August 29, 2009 and September 4, 2009. For the 

September 4, 2009 transaction, Smith sent a surrogate from his apartment to hand the 

drugs to the informant. The police recorded the conversations between Smith and the 

informant about the transactions.

       Three months after the buy operations, on December 15, the police attempted to 

contact Smith about a block away from his house. Smith did not respond, and the police 

did not detain him to confirm his identity or attempt to arrest him. Instead, on that same 

day, the police obtained a warrant to arrest Smith in his house. The transcript of the 

telephonic search warrant hearing indicates a police officer told the commissioner he 

sought a warrant to "search for the person of Mike [Smith]" to arrest him for "delivery of a 

controlled substance, namely heroin." The officer also stated the police were "searching 

for documents of dominion and control." The commissioner granted the warrant, which 

authorized the police to enter Smith's apartment for the purpose of seizing both Smith 

and "documents of dominion and control."

       The police went to Smith's apartment later that day and kept it under surveillance 

for four hours. They observed no one else entering. The police entered the apartment, 

which is around 500-700 square feet, and arrested Smith. There was no testimony about 

where in the apartment the arrest occurred. The officers performed a "protective sweep"

of the entire apartment, including Smith's bedroom, which is located "[s]traight through 

the front door through the living area [.]" One officer attempted to open a closet in the 

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No. 66143-4-I/3

bedroom, but it was locked. An officer asked Smith for the keys to the closet, but he 

refused. The officer used a pocketknife to pull the latch open enough to open the door. 

Inside the closet, the officer found a lockbox. 

       The police took the lockbox, and the next day, December 16, they obtained a 

warrant to open the lockbox, based largely on (1) the fact that the August and 

September deliveries occurred outside his apartment; (2) income tax information for 

Smith found inside of his apartment; and (3) the June 2009 information provided by the 

confidential informant. Inside the box, the police found a large quantity of heroin, some 

cash, and buprenorphine, a controlled substance.

       The State charged Smith with two counts of delivery of heroin, as well as 

possession of heroin with intent to deliver and possession of buprenorphine. Smith 

moved to suppress the evidence found in the lockbox, and the trial court denied the 

motion. The jury convicted Smith as charged, and he appeals.

                                        DISCUSSION

       Smith argues that because the warrant issued December 15, 2009 did not 

establish probable cause to search his apartment for documents of dominion and 

control, the search exceeded the lawful scope of the warrant. He then argues that 

because lockbox was found as a result of that search, its seizure was unlawful and the 

lockbox, along with its contents, should have been excluded from his trial. For the 

reasons stated below, we agree with Smith and reverse the two convictions for 

possession of controlled substances.

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No. 66143-4-I/4

       As a threshold matter, the State contends Smith waived the issue of whether 

probable cause supports the warrant by failing to raise it below in his CrR 3.6 hearing.  

Generally, we do not consider arguments raised for the first time on appeal. RAP 

2.5(a). A party may appeal a manifest error affecting a constitutional right, however, 

even if the issue was not raised before the trial court. RAP 2.5(a)(3). The defendant 

must identify a constitutional error and show that it had practical and identifiable 

consequences in the proceeding; it is this showing of actual prejudice that makes the 

error manifest, allowing appellate review. State v. Roberts, 142 Wn.2d 471, 500, 14 

P.3d 713 (2000); State v. McDonald, 138 Wn.2d 680, 691, 981 P.2d 443 (1999).

       Here, the constitutional error alleged is that the police searched a locked closet 

in Smith's bedroom without probable cause, and the practical and identifiable 

consequence of the illegal search was that the police found the drugs used to convict 

him of two counts of possession of a controlled substance.  Smith has thus 

demonstrated actual prejudice and may raise the Sixth Amendment argument for the 

first time on appeal. 

       A warrant "may issue only upon a determination of probable cause." State v. 

Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999) (citing State v. Cole, 128 Wn.2d 262, 

286, 906 P.2d 925 (1995)). "An application for a warrant must state the underlying facts 

and circumstances on which it is based in order to facilitate a detached and 

independent evaluation of the evidence by the issuing magistrate." Thein, 138 Wn.2d 

at 140 (citing State v. Smith, 93 Wn.2d 329, 352, 610 P.2d 869 (1980) and State v. 

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Helmka, 86 Wn.2d 91, 92-93, 542 P.2d 115 (1975)). "Probable cause exists if the 

affidavit in support of the warrant sets forth facts and circumstances sufficient to 

establish a reasonable inference that the defendant is probably involved in criminal 

activity and that evidence of the crime can be found at the place to be searched."

Thein, 138 Wn.2d at 140 (citing Cole, 128 Wn.2d at 286 and State v. Dalton, 73 Wn.

App. 132, 136, 868 P.2d 873 (1994)). "Accordingly, 'probable cause requires a nexus 

between criminal activity and the item to be seized, and also a nexus between the item 

to be seized and the place to be searched.'" Thein, 138 Wn.2d at 140 (quoting State v. 

Goble, 88 Wn. App. 503, 509, 945 P.2d 263 (1997)).

       Here, the police sought a warrant to search for Smith in his apartment and, if 

found, arrest him for "delivery of a controlled substance, namely heroin." They 

requested that the warrant include authority to search for and seize "documents of 

dominion and control." The elements of the crime of delivery of a controlled substance 

are (1) delivery and (2) "guilty knowledge." RCW 69.50.401(1); State v. Nunez-

Martinez, 90 Wn. App. 250, 253, 951 P.2d 823 (1998). The warrant does not explain 

the meaning of the phrase "documents of dominion and control", but to the extent it 

refers to the commonly understood meaning, i.e., documents tending to show that 

Smith resided at the apartment that was searched, such evidence is irrelevant to the 

crimes for which Smith was to be arrested. Whether Smith exerted dominion and 

control over the place where he was arrested sheds no light on whether he committed 

the crimes of delivery of a controlled substance. 

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No. 66143-4-I/6

       In sum, there is no nexus between "documents of dominion and control" and 

"delivery of a controlled substance." As such, that portion of the warrant permitting the 

police to search for the documents was not supported by probable cause. Because the 

lockbox and its contents were found during this search, the evidence was unlawfully 

obtained and should have been excluded from Smith's trial.1 Thein, 138 Wn.2d at 140.

       The State argues that even if the warrant to search for documents was not 

supported by probable cause, the police were entitled to search the closet under the 

"protective sweep" rule. We reject this argument.

       The United States and Washington constitutions prohibit most warrantless 

searches of homes. State v. Smith, 165 Wn.2d 511, 517, 199 P.3d 386 (2009). Police 

may only search without a warrant under one of the "'few jealously and carefully drawn 

exceptions to the warrant requirement.'" Id. (quoting State v. Kinzy, 141 Wn.2d 373, 

384, 5 P.3d 668 (2000)). The State bears the burden of proving that any warrantless 

search fits within one of these exceptions. Id. Here, the State argues the officers'

search of the locked closet in Smith's bedroom was permissible as a protective sweep 

incident to the arrest.  

       1 To the extent the State argues probable cause is provided by the officer's CrR 3.6 hearing 
testimony that an informant told the officer about the lockbox in the closet, we reject that argument. To 
obtain a search warrant, "[i]t is not enough" that the affidavit "set forth that criminal activity occurred at 
some prior time." State v. Higby, 26 Wn. App. 457, 460, 613 P.2d 1192 (1980). "The facts or 
circumstances must support the reasonable probability that the criminal activity was occurring at or about 
the time the warrant was issued." Higby, 26 Wn. App. at 460. In Higby, this court reversed a conviction 
for maintaining a dwelling for the use and sale of controlled substances where the police obtained a 
search warrant after a sale of a small quantity of marijuana.  Id. at 461 ("We do not believe that one sale 
of a small quantity of marijuana provides probable cause to search 2 weeks later") (citing State v. Willey, 
363 A.2d 739 (Me 1976) (three purchases spanning an eight day period, the last made 31 days prior to 
issuance of the warrant was insufficient to establish probable cause). Here, the police obtained their 
information from the informant in June 2009, six full months before they sought the arrest warrant. The 
information was stale and cannot provide probable cause for the search.

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No. 66143-4-I/7

       Under this doctrine, while making a lawful arrest, officers may conduct a 

reasonable "protective sweep" of the premises for security purposes. State v. Hopkins, 

113 Wn. App. 954, 959-60, 55 P.3d 691 (2002) (citing Maryland v. Buie, 494 U.S. 325, 

334-35, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990)).  This is not a search in the 

conventional sense but rather an extension of a Terry2 frisk or pat down. See Buie, 494 

U.S. at 331-34. The scope of such a sweep is limited to a cursory visual inspection of 

places where a person may be hiding. Hopkins, 113 Wn. App. at 959. If the area 

immediately adjoins the place of arrest, the police need not justify their actions by 

establishing a concern for their safety. When the sweep extends beyond this immediate 

area, however, there must be articulable facts which, taken together with rational 

inferences, would warrant a reasonable and prudent officer in believing that the area to 

be swept harbors an individual posing a danger to those on the scene. Id. at 959-60. 

       Smith contends that although the Fourth Amendment permits "protective 

sweeps," the doctrine nevertheless violates article I, section 7 of the Washington 

Constitution. Smith correctly notes that no Washington case has evaluated the 

constitutionality of the "protective sweep" doctrine with respect to article I, section 7 and 

invites us to do so here. But we need not address the question to resolve the issue 

before us because even under a Fourth Amendment analysis, the police search in this 

case exceeded the scope of the doctrine. 

       A protective sweep "may extend only to a cursory inspection of those spaces 

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

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No. 66143-4-I/8

where a person may be found" and may last "no longer than is necessary to dispel the 

reasonable suspicion of danger and in any event no longer than it takes to complete 

the arrest and depart the premises." Buie, 494 U.S. at 336. Here, the police did not 

simply arrest Smith and leave. Rather, they searched the entire (admittedly small) 

apartment. Upon searching Smith's bedroom, they found a closet door. They attempted 

to open the door, but it was locked. After Smith refused the officer's request for keys to

the door, the police then broke into and searched the closet. The police did not perform 

a merely "cursory inspection" and they did not simply arrest Smith and leave. Buie, 494 

U.S. at 336. This was more than a simple "protective sweep," and the trial court erred in 

concluding otherwise.

       The State also argues the police properly seized the lockbox in the locked 

closet, because it was in "plain view." But application of the "plain view" doctrine would 

require that the police were justified in entering the locked closet in the first place. State 

v. O'Neill, 148 Wn.2d 564, 582-83, 62 P.3d 489 (2003). As is described above, the 

police were not justified in entering the closet. The trial court's ruling that the lockbox 

was properly seized under the plain view doctrine was therefore erroneous. 

       In sum, the trial court erred by denying the motion to suppress. As such, Smith's 

convictions flowing from the drugs found in the lockbox, namely, the convictions for 

possession of heroin with intent to deliver and possession of buprenorphine, must be 

reversed.  

       Smith also argues that his remaining two convictions for delivery of a controlled 

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No. 66143-4-I/9

substance must be reversed because the evidence that he "possessed a substantial 

quantity of heroin when he was arrested prejudiced his ability to receive a fair trial" on 

those counts. Alternatively, he argues that he was deprived of a fair trial on the delivery 

counts by the trial court's denial of his motion to sever the possession counts. But in 

either case, the issue is whether the error is harmless.

       When evidence of an unlawful search is improperly admitted against a 

defendant, we apply a harmless error analysis. State v. Smith, 165 Wn. App. 296, 316, 

266 P.3d 250 (2011) (citing State v. Guloy, 104 Wn.2d 412, 425-26, 705 P.2d 1182 

(1985)). A constitutional error is harmless if the reviewing court is convinced beyond a 

reasonable doubt that any reasonable jury would have reached the same result in the 

absence of the error. Guloy, 104 Wn.2d at 425-26. This test is met where the untainted 

evidence is so overwhelming that it necessarily leads to a finding of guilt. Id.

       Here, the evidence that Smith delivered heroin as charged is overwhelming. 

Each count arose from a police arranged "controlled buy" operation, wherein a 

confidential informant purchased controlled substances from Smith. The police 

observed the transactions. The jury heard the testimony of police officers involved in 

this operation, as well as the testimony of the confidential informant. The jury also 

heard an audio recording of one of the controlled buys. Although Smith contends the 

testimony of the informant conflicted with his testimony, that is a credibility 

determination to be resolved by the jury. State v. Camarillo, 115 Wn.2d 60, 71, 794 

P.2d 850 (1990).

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No. 66143-4-I/10

       In short, the evidence of Smith's guilt on the delivery of heroin counts was 

overwhelming, and the admission of the evidence improperly taken from the lockbox in 

his closet was harmless.3

       In his pro se statement of additional grounds, Smith argues the charging 

document was constitutionally insufficient in that it did not include the essential 

elements of the charged crimes. We reject this argument because Smith fails to 

describe what elements he believes are missing, and a review of the amended 

information shows all of the essential elements of the charged crimes are present. 

Smith also contends the State withheld evidence in discovery relating to an attempted 

but failed "controlled buy" on August 20, 2009, before the two completed deals. This 

allegation however, appears to be related to matters outside the record, and moreover, 

Smith does not explain how, even if true, it impaired his ability to prepare his defense. 

Finally, Smith argues the accomplice liability instruction given in connection with the 

charge of delivery of heroin on September 4, 2009 is faulty under State v. Roberts, 142 

Wn.2d 471, 14 P.3d. 713 (2000) and State v. Cronin, 142 Wn.2d 568, 14 P.3d 752

(2000). We reject this argument. The accomplice liability instruction given to the jury 

did not use the impermissible "a crime" language found faulty in those cases.

       We reverse the convictions for possession of heroin with intent to deliver and 

       3 Even assuming it was error to deny Smith's severance motion, that error is also harmless. 
Evidence admitted erroneously because severance was improperly denied is reviewed under the non-
constitutional harmless error standard. State v. Bythrow, 114 Wn.2d 713, 722 n.4, 790 P.2d 154 (1990).
Under that standard, we ask whether, within reasonable probabilities, the outcome of the trial would have 
been different if the error had not occurred. Id., State v. Jackson, 102 Wn.2d 689, 695, 689 P.2d 76 
(1984). Because we conclude that the more rigorous constitutional test is met, it follows that this test is 
met as well. 

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No. 66143-4-I/11

possession of buprenorphine, affirm the two convictions for delivery of heroin, and 

remand for further proceedings consistent with this opinion.

WE CONCUR:

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