                                                                                                 I- !   L-E
                                                                                       00M,T OF A PPEALS'
                                                                                          o hffsjo, 41I

                                                                                      2913 DEC - 3 AM 9: 22

                                                                                      STATE OF 1 ASE° NGTON
                                                                                      BY
                                                                                                  E UT Y



       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                  DIVISION II


STATE OF WASHINGTON,                                                          No. 43244 -7 -II


                                     Respondent,


          MM




FRANCISCO JAVIER MILLAN,                                                UNPUBLISHED OPINION




          QunNN- BRNTNALL, P. J. —             Francisco Millan was convicted of first degree driving while

license   suspended and       first degree     unlawful possession of a    firearm.   Millan appealed, arguing

that   under   Gant,' the firearm       should   have been   suppressed.    Our Supreme Court held that the


new rule in Gant applied retroactively, and remanded to the trial court for a suppression hearing

to determine      whether    the firearm      was properly admitted at   trial.   The trial court found that the


firearm was properly admitted, and Millan appeals. We affirm.

                                                       FACTS

                                                                                                          2
          Millan    was     convicted    of   first degree   unlawful   possession    of   a   firearm.       State V.


Robinson, 171 Wn.2d 292, 298, 253 ' P. 3d 84 ( 2011).              Millan appealed, arguing that the recent

decision in Gant required reversal because the search of the vehicle was unconstitutional.




 Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 ( 2009).

2 Millan was originally charged with first degree driving with license suspended and first degree
unlawful       possession   of a   firearm.     Millan pleaded guilty to first degree driving while license
suspended.
No. 43244 -7 -II



Robinson, 171 Wn.2d               at    298.     Our Supreme Court held that Gant applied retroactively to

Millan' s case. Robinson, 171 Wn.2d at 306. Our Supreme Court then remanded the case back to

the trial court for a suppression hearing. Robinson, 171 Wn.2d at 307.

         The arresting officers, Officers Christopher Shipp and Timothy Caber of the Tacoma

Police Department, testified             at    the   suppression   hearing. Shipp testified that on April 1, 2007, he

and    Caber   responded     to   a    domestic      violence call.     Two citizen witnesses reported seeing a male,

later identified as Millan, grab a female, later identified as his wife, by the hair, drag her into a

car,   and   hit her   several         times in the      head.     Millan' s wife was obviously upset but told the

                officers   that no       physical assault     had taken     place.   However, based on the statements
responding


of the witnesses, the officers placed Millan under arrest for assault.

         At the suppression hearing, Officer Caber testified that he found a pistol in the backseat

of the car during a search incident to arrest. He could not then recall when he first saw the pistol
or whether the pistol was visible through the window. But at Millan' s original trial years earlier,

Officer Caber testified that he walked up to the car and saw a pistol through the car window.

The pistol was balanced on its spine on the floorboard of the back seat of the car. Under the then

 applicable law, Officer Caber performed a search incident to arrest and seized the pistol.


Holding that the changes in the law announced after the search of Millan' s car applied

 retroactively, our Supreme Court reversed and remanded for a suppression hearing under the new
 standard.




          At the suppression hearing, the trial court concluded that the firearm was in " plain" view

 and that there was a safety concern for the officers and the public due to the volatile nature of

 domestic      violence    incidents.         Based on its conclusions of law, the trial court determined that the




                                                                    2
No. 43244 -7 -II



firearm     was     admissible     evidence.       Because the trial court properly ruled the pistol was

admissible, we affirm Millan' s conviction for first degree unlawful possession of a firearm.

                                                         ANALYSIS


          We   review   the trial    court' s   legal   conclusions    in   a suppression   hearing   de   novo.   State v.


Johnson, 128 Wn.2d 431, 443, 909 P. 2d 293 ( 1996).                         Under both the Fourth Amendment and


article I, section 7, a warrantless search is per se unreasonable unless the search falls within one

or more exceptions       to the     warrant requirement.       State v. Ross, 141 Wn.2d 304, 312, 4 P. 3d 130


 2000).     Originally, Millan' s firearm was admitted under the search incident to arrest exception

to the    warrant requirement.         Robinson, 171 Wn.2d            at   297 -98.   However, the search incident to


arrest exception to the warrant requirement, which allowed officers to search a suspect' s car at


the time of the arrest, was restricted by the United States Supreme Court' s opinion in Gant and

our Supreme Court' s opinion in State v. Patton, 167 Wn.2d 379, 394 -95, 219 P. 3d 651 ( 2009).

Under Gant and Patton, officers may search a vehicle incident to arrest " only where there is ` a

reasonable basis to believe that the arrestee poses a safety risk or that the vehicle contains

evidence of the crime of arrest that could be concealed or destroyed, and that these concerns

exist at    the time   of   the   search. "'    Robinson, 171 Wn.2d at 302 ( quoting Patton, 167 Wn.2d at

394 -95).      Here, the Supreme Court ruled that under Gant and Patton, Millan was entitled to

move to suppress the gun and that under the changes in search and seizure law occurring after

the search of Millan' s car, the search incident to arrest exception could not justify the search of

Millan'    s car.    It remanded for a suppression hearing to determine whether another exception to

 the warrant requirement allowed admission of the firearm.

           Here, the trial court determined the pistol was properly seized under what it referred to as

 the "   plain view"   doctrine. Although it        used   the term " plain     view,"   the trial court actually applied

                                                               3
No. 43244 -7 -II



the open view doctrine in this case and noted that the officers not only saw the pistol from

outside the car but that exigent circumstances warranted seizure of the weapon. Thus, it denied

the   motion       to    suppress.       The    pistol was     properly         admissible under     the    open view           doctrine.    We


affirm the trial court' s order determining that the evidence was admissible.

            Although the plain view and open view doctrine are similar, discovery of evidence in

open view         is    not a search within            the meaning      of      the Fourth Amendment.              State v. Barnes, 158


Wn.    App.       602, 612, 243 P. 3d 165 ( 2010) ( citing                 State v. Perez, 41 Wn. App. 481, 483, 704 P. 2d

625 ( 1985)). "           In the ` plain view' situation, the view takes place after an intrusion into activities

or areas as       to    which     there   is   a reasonable expectation of               privacy."   Barnes, 158 Wn. App. at 612

 citing Perez, 41 Wn.              App.        at   483).   If the officer' s intrusion is justified, evidence in plain view


is admissible. Barnes, 158 Wn. App. at 612 ( citing Perez, 41 Wn. App. at 483).

            But    evidence       is in   open view when          the   officer views        the   evidence       from   a "`   non- intrusive


vantage point. "'           Barnes, 158 Wn. App. at 612 ( quoting State v. Seagull, 95 Wn.2d 898, 902, 632

P. 2d 44 ( 1981)).           In   an open view situation,           the    officer "`     is either oil the outside looking outside

                                          inside to that              is   knowingly                     to the   public. "'      Barnes, 158
or    on   the   outside    looking                           which                         exposed




Wn.        App.    at    612 ( quoting Seagull, 95 Wn.2d                   at    902).    There is no reasonable expectation of


                         item in                              therefore,                           the                   is not within the
privacy in         an               open view and,                              observation of           evidence "




scope of         the    constitution."         Barnes, 158 Wn.        App.       at   612 ( citing Perez, 41 Wn.         App.      at   483). "   It


is well established that a person has a diminished expectation of privacy in the visible contents of

 an automobile parked               in   a public place."        Barnes, 158 Wn. App. at 612 ( citing State v. Young, 28

 Wn. App. 412, 416, 624 P.2d 725, review denied, 95 Wn.2d 1024 ( 1981)).

             Here, the officers did not observe the firearm during a search or invasion of the car, plain

 view, but rather the court held that they saw the firearm in the backseat of the car through the

                                                                           11
No. 43244 -7 -II



       open view.
window -                      Therefore, the open view doctrine, not the plain view doctrine, properly

applies     in this   case.        Barnes,    158 Wn.         App.       at    612 -13.    Under the open view doctrine,


observation of an item does not constitute a search; however, there must also be exigent

circumstances       to   justify   the   seizure of     the item in           open view.     Barnes, 158 Wn. App. at 613.

Millan argues that the seizure of the weapon was not justified because the officers could not


identify the firearm as relevant evidence and there were no exigent circumstances. We disagree.
          First, the officers had probable cause to believe that a domestic violence assault had

occurred.       At the time, witnesses reported that the couple was fighting, Millan had hit his wife

several times, and the assault continued after Millan dragged his wife into the car. Although the

officers originally arrested Millan for fourth degree assault ( before seeing the firearm in open
view),    the   presence    of   the firearm      was      clearly   relevant evidence         of assault.   Barnes, 158 Wn.


App.   at   613.    The fact that Millan was not charged with the crime for which he was arrested does

not negate the officers' probable cause to arrest for that crime nor does it render unjustified

seizure of evidence relevant             to the   crime of arrest.            Thus, officers properly seized the weapon at

the time                         Millan for    assault and observed               it in   open view.   Therefore, the officers
             they   arrested




lawfully seized the pistol and it is admissible evidence. Barnes, 158 Wn. App. at 613 -14.

            Second, the trial court found that there were safety concerns for the officers and the

public.     These exigent circumstances existed and justified the officers seizing the weapon after


 observing it in      open view.         We consider the totality of the circumstances to determine whether

 exigent     circumstances         exist.    State    v.    Smith,       165    Wn. 2d 511,     518,   199 P. 3d 386 ( 2009).


 Although we consider the following six factors when determining whether exigent circumstances

 exist, it is not necessary for all six factors to be met. State v. Cardenas, 146 Wn.2d 400, 408, 47
 P. 3d 127, 57 P. 3d 1156 ( 2002),           cert.   denied, 538 U. S. 912 ( 2003). The six factors are


                                                                     E

                                    7
No. 43244 -7 -II



           1)   the gravity or violent nature of the offense with which the suspect is to be
          charged; (     2)   whether   the   suspect     is reasonably believed to be            armed; (   3) whether
         there   is reasonably trustworthy information that the suspect is guilty; ( 4) there is
           strong reason to believe that the suspect is on the premises; ( 5) a likelihood that
         the suspect will escape if not swiftly apprehended; and ( 6) the entry [ can be] made
         peaceably.


Cardenas, 146 Wn.2d at 406. In addition, five specific circumstances may be considered exigent

circumstances         including      danger to the arresting         officer or    to the   public.        State v. Tibbles, 169


Wn.2d 364, 370, 236 P. 3d 885 ( 2010) (                 quoting State v. Counts, 99 Wn.2d 54, 60, 659 P. 2d 1087

 1983)).


           Millan argues that there were no exigent circumstances because the officers had already

arrested    Millan     and placed      him in handcuffs       so   there    was no risk     to   officer   safety.   But Millan' s


cursory analysis of exigent circumstances does not take into account the totality of circumstances

present    in this    case.    Here, the exigent circumstances need not be such as to allow the officers to

search     Millan' s    otherwise private vehicle.           Rather, the officers observed a pistol in open view.


So the issue is whether, when the pistol can be seen from outside the car, the exigent

circumstances warrant seizure of                 the    evidence    Millan has left     open      to   public view.         Although


Millan had already been              arrested,    his   wife was unsecured and          in the     area of    the    car.   Millan' s


wife   was      clearly    upset     and uncooperative        with     arresting   officers.       Based on citizen witness


            Millan                                for domestic       violence assault —an          assault Millan' s wife said
reports,               was     being   arrested




did not occur. Given the totality of the circumstances, an unsecured firearm posed a clear risk to

 officer safety should Millan' s wife take action regarding her objections to the arrest of her

husband, and public safety should the car be left on a public street with a gun clearly visible

 though the       car' s      window.     Therefore, exigent circumstances existed which justified lawful

 seizure of     the   pistol after   the officers      observed    it in   open view.
No. 43244 -7 -II


         Although the trial     court   misstated   that it      relied   on    the "   plain   view"   exception to the



warrant requirement, the firearm was properly seized and was nonetheless admissible evidence.

The firearm was in open view through the window of the vehicle and the officers had reason to

believe the firearm      was relevant evidence      in the   assault on        Millan' s   wife.   Moreover, under the


circumstances presented, failure to secure the weapon would have posed a risk to officer and

public   safety.   Therefore, there were exigent circumstances which justified immediately seizing

the pistol. left in public view without a warrant before allowing Millan' s wife to drive the car

away. Accordingly, we affirm the trial court' s denial of Millan' s motion to suppress the firearm
and affirm his conviction for unlawful possession of a firearm. .

         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.




                                                                   INN-BRINTNALL, P. J.
We concur:




PEI Oi'AR, J. ,     r`




MAXA, J.




                                                             7
