State Of Washington v. David W. Haug ( 2019 )

Filed
Washington State
Court of Appeals
Division Two
November 13, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 51566-1-II
Respondent,
v.
UNPUBLISHED OPINION
DAVID WILLIAM HAUG,
Appellant.
SUTTON, J. — David W. Haug appeals the trial court’s ruling denying his motion to
suppress the evidence that led to his bench trial conviction for unlawful possession of a controlled
substance. He also challenges some of the legal financial obligations (LFOs) imposed by the trial
court.
Because the facts and circumstances within the arresting officer’s knowledge were not
sufficient to warrant a person of reasonable caution to believe that a crime had been or was being
committed, the trial court erred when it concluded that the officer had probable cause to arrest
Haug. Accordingly, we reverse the trial court’s denial of Haug’s motion to suppress evidence,
vacate Haug’s conviction and LFOs, and remand for further proceedings.
No. 51566-1
FACTS
I. BACKGROUND1
On December 7, 2017, City of Toledo Police Officer Coleman Nelson observed a notice
on the department’s “whiteboard” advising that after December 7, no one was allowed at a specific
residence on St. Helens Street. Clerk’s Papers (CP) at 8-9. Officer Nelson confirmed this
information with his chief, who told Nelson that the property was being sold and that no one was
allowed on the property.
On December 13, Officer Nelson observed Haug leaving the St. Helens Street residence.
When Officer Nelson contacted Haug outside the residence, Haug said that he lived there and that
he was picking up his belongings. Haug also stated that he never received an eviction notice and
that although he had been told there was an eviction notice posted on the front door, he had not
seen it. Officer Nelson attempted to contact the homeowner Judy Rogers but was only able to
leave a voicemail asking her to return his call. Officer Nelson allowed Haug to leave.
The next day, Rogers’s daughter, Megan Littleton, contacted Officer Nelson. Littleton told
Nelson that Haug was a former tenant and that they were having trouble getting him to leave the
residence. She also told Nelson that “she had gotten an eviction order for the property and she
1
The facts in this subsection are drawn from the unchallenged findings of fact entered following
the suppression hearing. State v. Hill, 123 Wash. 2d 641, 644, 870 P.2d 313 (1994) (unchallenged
findings of fact are verities on appeal).
We note that although Haug assigns error to several of the trial court’s findings of fact, he
does not present any argument in support of these assignments of error. Accordingly, we do not
address whether the evidence supports those findings of fact and treat them as unchallenged
findings of fact. RAP 10.3(a)(6); State v. Harris, 164 Wash. App. 377, 389 n.7, 263 P.3d 1276
(2011) (assignment of error is waived when no argument or legal authority related to the issue is
presented in the brief).
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No. 51566-1
handed Haug an eviction letter that instructed [him] to vacate the premises the last day of
November 2017.” CP at 9-10. Littleton told Officer Nelson that she also taped the eviction notice
to the front door. But she further stated that she subsequently gave Haug permission to stay in the
residence until December 7. Littleton told Officer Nelson that she wanted to pursue burglary
charges against Haug. “Rogers, who was with . . . Littleton during the phone call, also told Officer
Nelson that she wanted to pursue charges” against Haug. .
Following this conversation, without further investigating whether Haug had been legally
evicted, Officer Nelson located Haug and arrested him for burglary. During an inventory search
at the jail, officers found a controlled substance in Haug’s wallet. The State charged Haug with
unlawful possession of a controlled substance.
II. PROCEDURE
A. MOTION TO SUPPRESS
Haug moved to suppress the controlled substance evidence. He asserted that the inventory
search that led to the discovery of the controlled substance was improper because Officer Nelson
lacked probable cause to arrest Haug for burglary.
Officer Nelson and Haug were the only witnesses to testify at the suppression hearing.
Nelson testified consistent with the facts set out above.
Haug testified that the property owner was trying to sell the property and wanted him to
move out. But he denied ever seeing an eviction notice on the property and asserted that he had
told Officer Nelson so. Haug also denied telling Officer Nelson that he (Haug) was there to pick
up some things and leave. Haug further testified that he “had paid rent for December” and that he
was still paying utilities. Report of Proceedings (RP) at 32; CP at 10.
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Following this testimony, the State argued that the arrest was based on probable cause,
“based on the information the officer had at the time.” RP at 35. The State asserted that Officer
Nelson had relied on the notice on the white board and the information from his chief, and that
Officer Nelson “spoke to [Rogers] and [Littleton] on the phone” and corroborated that information.
RP at 35.
Haug argued that there was no probable cause to suspect a burglary because the evidence
that Haug had been properly served with the eviction notice was insufficient. He further argued
that regardless of whether the eviction notice was served, Haug had been authorized to stay in the
residence “into December” so, “under landlord-tenant law,” any “eviction notice is gone.” RP
at 7.
The trial court denied the motion to suppress and issued written findings of fact and
conclusions of law. In addition to finding the facts described above in section I, the trial court also
found that “Haug had paid rent for December, along with paying the utility bills for December.”
CP at 10.
Based on those facts, the trial court concluded, in part:
2. Officer Nelson relied on information that was provided by his department, a
fellow officer, and by the homeowner and the homeowner’s daughter. It was
reasonable for Officer Nelson to rely on this information.
....
5. There was probable cause for criminal trespass in the second degree, criminal
trespass in the first degree, and because of the statutory inference of an intent to
commit a crime when someone unlawfully enters a residence, residential burglary.
Any one of these offenses provided a basis for arrest and would be a basis to search
Haug’s person.
6. The inventory search of the Defendant at the jail was lawful.
CP at 10-11 (emphasis added).
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B. BENCH TRIAL AND SENTENCING
After the trial court denied the motion to suppress, Haug agreed to a stipulated facts bench
trial. The trial court found Haug guilty of unlawful possession of a controlled substance. At
sentencing, the trial court imposed several legal financial obligations (LFOs).
Haug appeals.
ANALYSIS
Haug challenges the trial court’s order denying his motion to suppress and the imposition
of certain LFOs. Haug argues that the trial court erred when it concluded that Officer Nelson had
probable cause to arrest Haug.2, 3. We agree and reverse the trial court’s denial of the motion to
suppress, vacate Haug’s conviction and LFOs, and remand for further proceedings.
I. STANDARD OF REVIEW
We review the trial court’s denial of a suppression motion to determine whether substantial
evidence supports the challenged findings of fact and whether these findings in turn support the
trial court’s conclusions of law. State v. Mendez, 137 Wash. 2d 208, 214, 970 P.2d 722 (1999),
overruled on other grounds by Brendlin v. California, 551 U.S. 249, 127 S. Ct. 2400, 168 L. Ed.
2d 132 (2007). We consider unchallenged findings of fact to be verities on appeal. State v. Hill,
2
This argument relates to the trial court’s conclusion of law 5. CP at 10. Haug assigns error to
this conclusion of law.
3
Haug also argues that Officer Nelson’s reliance on the information provided by his department,
Rogers, and Littleton was reasonable under Aguilar-Spinelli. Aguilar v. Texas, 378 U.S. 108, 84
S. Ct. 1509, 12 L. Ed. 2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L.
Ed. 2d 637 (1969). Because we reverse on other grounds, we do not address Aguilar-Spinelli.
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123 Wash. 2d 641, 644, 870 P.2d 313 (1994). We review conclusions of law de novo. Mendez, 137
Wash. 2d at 214.
II. NO PROBABLE CAUSE
Haug argues that the trial court erred when it concluded that Officer Nelson had probable
cause for arrest because the evidence was insufficient to show that he (Haug) unlawfully entered
or remained in the building. He contends that Officer Nelson had no reason to believe “that Haug
was not ‘licensed, invited, or otherwise privileged to enter or remain’ inside his house” because
Haug denied having been served with the eviction notice and there was no additional evidence
corroborating Rogers’s and Littleton’s assertions that he had been lawfully evicted and was not
allowed on the premises. Br. of Appellant at 15 (quoting RCW 9A.52.010(2)4).
Article I, section 7 of the Washington Constitution and the Fourth Amendment to the
United States Constitution both require that arrests be supported by probable cause. State v.
Graham, 130 Wash. 2d 711, 724, 927 P.2d 227 (1996). “Probable cause exists where the facts and
circumstances within the arresting officer’s knowledge and of which the officer has reasonably
trustworthy information are sufficient to warrant a person of reasonable caution in a belief that an
offense has been committed.” Graham, 130 Wash. 2d at 724 (quoting State v. Terrovona, 105 Wash. 2d
632, 643, 719 P.2d 295 (1986)).
4
Haug cites to RCW 9A.52.010(3), but the correct citation for the quoted language is RCW
9A.52.010(2).
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Whether probable cause exists depends on the totality of the circumstances. State v. Inman,
2 Wash. App. 2d 281, 288, 409 P.2d 1138, review denied, 190 Wash. 2d 1022 (2018).
To establish probable cause, Officer Nelson was required to have knowledge of facts
sufficient to cause a person of reasonable caution to believe that an offense had been committed.
Here, although Rogers and her daughter stated that Haug had no authority to be in the residence
after December 7, Haug’s assertion that he had not been served with an eviction notice, the failure
of any party to show that a writ of restitution had been issued,5 and Littleton’s statement to Officer
Nelson that she had agreed to allow Haug to stay in the residence after the eviction notice was
allegedly posted, all would make a reasonable person question whether Haug had been lawfully
evicted from the property and whether he still had authority to enter the residence. Thus, without
following up to determine if a writ of restitution requiring Haug to vacate the property had been
issued, Officer Nelson did not have probable cause to arrest Haug.
5
RCW 59.18.410.
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No. 51566-1
Because Officer Nelson did not have probable cause to arrest Haug, the trial court erred
when it concluded that there was probable cause for the arrest. Accordingly, we reverse the trial
court’s denial of Haug’s motion to suppress, vacate Haug’s conviction and LFOs, and remand for
further proceedings
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.
SUTTON, J.
We concur:
MELNICK, P.J.
GLASGOW, J.
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