                                                                                             rIU
                                                                                     CDURT OF APPEALS
                                                                                            DIVISIW4 11

                                                                                 2015 AUG 7 1       AM 9: 08

                                                                                 STATE OF WASHINGTON,,

      IN THE COURT OF APPEALS OF THE STATE 6* F WASItNGTON

                                                    DIVISION II
STATE OF WASHINGTON,
                                                                                     No. 43659 -1 - II


                                        Respondent,


           v.



    DAVID. CRAIG DICKJOSE,                                                 UNPUBLISHED OPINION


                                        11


         SUTTON, J. —       David Dickjose appeals from the trial court' s ruling that his inculpatory post-

arrest statements were admissible at          trial.    He argues that the trial court erred in ruling that his

statements      were    sufficiently   attenuated   from his   unlawful    arrest.     We hold that his arrest was


unlawful and, because the State intentionally abandoned its attenuation doctrine argument, his

post -arrest statements are      inadmissible.      We remand for further proceedings consistent with this


opinion.



                                                         FACTS


                                         I. SEARCH WARRANT EXECUTION


         This    case    has already been the       subject   of one appeal.'    In December 2007, Lakewood


Officer Sean Conlon obtained a search warrant to search Dickjose' s home in connection with his

                                                                                                               2
investigation      of   Dickjose for     unlawful      possession   and   delivery     of   methamphetamine.       On




    State v. Dickjose, noted at 160 Wn..App. 1011, 2011 WL 1005552.
2
    Officers had   conducted     three different     controlled   buys   involving    Dickjose.   The parties do not
dispute facts relating to these        controlled   buys.
No. 43659 -1 - II



December 13,             at   about    7: 00   AM,     police . officers   executed   the   search   warrant.   The warrant


authorized entry and search of:


                     The      residence:       18111 41st AV E, Tacoma, WA 98446.                18111 41st AV E
             is listed   as a   two     acre parcel.       The residence appears to be a blue double wide
             manufactured home. There are also two detached garages, One four car garage and
             one appears to be an RV/ shop type garage.

                     All outbuildings, trailers and vehicles on the property.

                     The person: A W/M known as David C. Dickjose, 05- 26- 67.


Clerk'   s   Papers ( CP)       at   19. The search warrant did not contain authorization to arrest Dickjose.


             Conlon first contacted Dickjose inside the home about 10 minutes after officers entered the


home. Conlon read Dickjose his Miranda' rights and Dickjose waived those rights. About a half

hour later, officers found methamphetamine in Dickj ose' s home and in his vehicle on the property.

Conlon then         spoke with         Dickjose      a second time.        Dickjose denied knowing anything about the

methamphetamine.                Conlon told Dickjose that he was under arrest for delivery of methampheta-

mine and that Conlon had probable cause to arrest him for that offense; Dickjose denied having

delivered methamphetamine.


             Within the hour after the officer' s initial entry into Dickjose' s home, Conlon spoke to

Dickjose a third time while Dickjose was still at home, in handcuffs, and under arrest. Conlon told

Dickjose he believed he                was " a fairly large methamphetamine dealer" based on the amount of

methamphetamine                recovered       and "   gave him an opportunity to help himself out and to order

narcotics" from his dealer in exchange for not booking him into jail that night. Verbatim Report




3 Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).

                                                                     2
No. 43659 -1 - II



of   Proceedings ( VRP) ( May        11, 2012) at 21. Dickjose agreed and " said that he could help himself

out" by ordering a pound of methamphetamine. VRP at 21.

         Conlon then took Dickjose to the police station around 10: 00 or 11: 00 AM. There, the two


further discussed Dickjose' s drug dealing activities and arranged to purchase a pound of

methamphetamine         from Dickjose'       s supplier.    Dickjose admitted to dealing methamphetamine at

about   half   a pound at a   time   and   that his   supplier was a "   large Hispanic   male."   VRP at 23. At the


agreed upon location, Dickjose identified his supplier. Conlon did not book Dickjose into jail that

night based on their agreement.


                                                      II. PROCEDURE


         The State charged Dickj ose with three counts of unlawful delivery of a controlled substance

 methamphetamine) and one count of unlawful possession of a controlled substance with intent to

deliver (methamphetamine).           Dickj ose moved to suppress the physical evidence found in his home.

The trial court denied his motion. We granted Dickjose' s request for interlocutory discretionary

review and reversed the trial court' s denial of the motion to suppress, holding that the affidavit

supporting the search warrant did not contain sufficient facts to establish a " nexus" between the

place to be searched, Dickjose' s home, and evidence of the crimes for which Dickjose was charged


with committing. State v. Dickjose, 2011 WL 1005552, at * 7.

             On remand, the trial court granted Dickjose' s motion to suppress the evidence found in

Dickjose' s vehicle because there was an insufficient nexus between the crimes being investigated

and    the   vehicles on   the property.       Dickjose also moved to suppress his post -arrest statements,


arguing that his arrest was unlawful because we had held the search warrant invalid as to his home.

The trial court ruled that Dickj ose' s arrest was unlawful, but that his statements made at the police

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No. 43659 -1 - II



station were sufficiently attenuated from the illegal entry into his home and unlawful arrest and

therefore admissible. The trial court' s factual findings did not mention the inculpatory statements

Dickjose made at home.


         Dickjose sought and we granted discretionary review of the trial court' s denial of his

motion       to   suppress   his   post -arrest statements.           In its cross -appellate brief, the State expressly

abandons          its   argument,    made below, that Dickjose' s statements are                    admissible under the


attenuation doctrine.


                                                          ANALYSIS


                                           1. RECORD SUFFICIENT FOR REVIEW


             The State first argues that the record is incomplete, preventing review, because it contains

only one of two days of testimony on the suppression hearing and does not contain a transcript of

the trial     court' s    oral   ruling   on   the   motion   to    suppress.'     These omissions do not preclude our


ItaIrlWAV




             The party claiming error holds the burden to provide an adequate record for our review.

State   v.   Sisouvanh, 175 Wn. 2d 607, 619, 290                   P. 3d   942 ( 2012).   A responding party who believes

the record is inadequate may supplement the record and request the appellant pay for that cost.

RAP 9. 2( c). A respondent who claims that review must be denied for an incomplete record must


explain the significance of the missing piece of record. Favors v. Matzke, 53 Wn. App. 789, 794,

770 P. 2d 686 ( 1989), review denied, 113 Wn.2d 1033. Here, the State did not move to supplement




    The State argues that the commissioner improvidently granted review. But the State did not file
a   motion        to modify the      commissioner' sruling granting review under RAP 17. 7.    Thus, the
commissioner' s           ruling granting discretionary review is final. Hough v. Ballard, 108 Wn. App.
272, 277, 31 P. 3d 6 ( 2001).

                                                                     11
No. 43659 -1 - II




the record and does not explain why Dickjose' s failure to provide the second day of testimony

prevents adequate review.              We   conclude      that the    record       is   sufficient   for   our review.    Thus, the


State' s argument fails.


                       II. ADMISSIBILITY OF DICKJOSE' S INCULPATORY STATEMENTS


A. Standard of Review


             We review a trial court' s ruling on a motion to suppress evidence to determine whether

substantial evidence supports the trial court' s findings of fact and whether the findings of fact

support the trial court' s conclusions of law. State v. Russell, 180 Wn.2d 860, 866, 330 P. 3d 151

 2014).       We review conclusions of law de novo to determine if they are supported by the findings

of   fact. Russell, 180 Wn.2d      at   867. Substantial       evidence       is   evidence    that is     sufficient "` to   persuade


a   fair- minded   person of   the truth     of   the   stated premise."'          Russell, 180 Wn.2d at 866- 67 ( quoting

State   v.   Garvin, 166 Wn.2d 242, 249, 207 P. 3rd 1266 ( 2009)).                         Unchallenged findings of fact are


verities     on appeal.   State   v.   Homan, 181 Wn.2d 102, 106, 330 P. 3d 182 ( 2014).                              We review a


conclusion of       law that is   mislabeled a          finding   of   fact   as    a conclusion of          law.   State v. Green, .


177 Wn. App. 332, 341 n.7, 312 P. 3d 669 ( 2013).

             The trial court ruled that because the search warrant was invalid to enter Dickjose' s home


under our previous holding in Dickjose, the officers lacked authority to arrest him in his home as




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No. 43659 -1 - II




well.5 The trial court mischaracterized this decision as a finding of fact because the determination

of whether an encounter between police and a defendant constitutes .a constitutional violation is. a


question of law that we review de novo. State v. Budd, 186 Wn. App. 184, 347 P. 3d 49 ( 2015).

B. Dickjose' s Unlawful Arrest


           Dickjose argues that the trial court properly decided that his arrest was unlawful because it

cannot     be "   untethered" from the unlawful entry into his home pursuant to the search warrant.

Br.   of   Appellant     at   8.   We agree.


           The     Fourth          Amendment        protects      against        unreasonable      searches     and      seizures.




U. S. CONST.       amend.          IV.   Our   state constitution provides, "         No person shall be disturbed in his


private affairs, or       his home invaded,          without     authority    of   law."   WASH. CONST.        art.   I, § 7.    The


sanctity     of   the    home "      is perhaps most deserving of constitutional protection against police

intrusion"     under     both the Washington Constitution               and      its federal   counterpart.   State v. Hatchie,


161 Wn.2d 390, 39.7, 166 P. 3d 698 ( 2007).                    An arrest is unquestionably a seizure of the person

arrested. Hatchie, 161 Wn.2d at 395. To lawfully arrest a person in his or her home absent exigent

circumstances, under federal and Washington State law, a police officer must have ( 1) a warrant


for a suspect' s arrest supported by probable cause and ( 2) reason to believe the suspect is inside




5 In its conclusions of law, the trial court stated that ( 1) Dickjose had received his Miranda warning
at home " before making his initial exculpatory statements to Officer Conlon while at his house,"
 2) Dickjose was removed to the police station where Conlon promised to not book him into jail
that night if he would make statements about his involvement in drug dealing and identify his
supplier; and (     3) Dickjose then           confessed.   CP   at   60- 61. The trial    court   then   concluded    that "[   t] he
State ha[ d]       met    its burden to         show   that [ Dickjose'     s]    subsequent statement was sufficiently
attenuated from the illegal entry into his home, and that the officer' s promise not to take him to
jail was significantly intervening to dissipate any taint of the entry into the house. The statements
 Dickjose]        made at     the   police station are admissible at        trial."    CP at 61.

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No. 43659 -1 - II



the   home.       Hatchie,       161   Wn.2d     at   395- 96 ( citing Payton          v.    New     York, 445       U. S.   573,


603, 100 S. Ct. 1371, 63 L. Ed. 2d 639 ( 1980)).


          The State argues that Dickjose was lawfully arrested because the search warrant allowed

the officers to search for Dickjose' s person and once they were in the house they could arrest him

based on probable cause that he had committed a crime. This argument vitiates the long-standing

rule that, absent exigent circumstances, a person may be arrested in his or her home only with an

arrest warrant supported by probable cause. State v. Hoffman, 116 Wn.2d 51, 101, 804 P. 2d 577

 1991).    An arrest warrant provides a police officer with limited authority in,regard to a person' s

home: They may enter only to seize the person and must immediately leave. Hatchie, 161 Wn.2d

at 400.


          The State'     s argument    greatly   minimizes     the basis   of   this   rule —    the sanctity of the home —

and attempts to fill the gap between a search warrant, which we held was invalid to enter Dickj ose' s

home,     and   his   arrest.   Hatchie, 161 Wn.2d       at   397. Because the search warrant was unsupported


by a sufficient nexus between Dickjose' s home and the evidence related to unlawful delivery or

possession      by    Dickjose, the State lacked authority to        enter   Dickjose'       s   home   at   all. Furthermore,



Conlon arrested Dickjose only after the officers recovered the methamphetamine, which has now

been   suppressed under          our   holding   that the     warrant was    invalid        as   to Dickjose'   s   home.    The


officers gained entry into Dickjose' s home only through the invalid search warrant. Thus, the trial

court correctly concluded that Dickjose' s arrest was unlawful.

          We hold that because the officers gained entry into Dickjose' s house only through an

invalid search warrant, Dickjose' s arrest in his home was unlawful. We further hold that because




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No. 43659 -1 - II



the   State   intentionally   abandoned.   its   attenuation   doctrine   argument,   Dickjose' s post -arrest


statements are inadmissible. We remand for further proceedings consistent with this opinion.


         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.



                                                                                      Y



                                                            SUTTON, J.
 We concur:




 J ) HANSON, C. J.



              s '




 BJOR    SEN, ....   J.— --




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