                                                                          FILED 

                                                                       JULY 28, 2015 

                                                                In the Office of the Clerk of Court 

                                                              W A State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STATE OF WASHINGTON,                             )
                                                 )    No. 32547-4-III
                      Respondent,                )
                                                 )
       v.                                        )
                                                 )
OCTAVIANO ALVAREZ,                               )    UNPUBLISHED OPINION
                                                 )
                      Appellant.                 )

       KORSMO, J. -    Octaviano Alvarez challenges three felony convictions, arguing

that evidence was improperly seized from him and that his counsel was ineffective for

failing to vigorously challenge the seizure. Concluding that the seizure was proper and

that counsel therefore did not err, we affirm.

                                          FACTS

       Mr. Alvarez was accused of committing residential burglary, theft of a motor

vehicle, and possession of a stolen vehicle for offenses occurring in Yakima on October

9,2013. The possession of a stolen vehicle charge involved a silver Honda Accord that

had been taken about 8:00 a.m. that day. Deputy Sheriff Brian McIlrath discovered the

car about an hour later on Cemetery Road. It had crashed into a vineyard trellis near an
No. 32547-4-III
State v. Alvarez


irrigation ditch, completely disabling the vehicle. After the car was removed, the officer

could tell that the driver had walked and crawled across the vineyard and the irrigation

ditch and would have been muddied in the process. The person then walked away

through the vineyard, leaving footprints.

       Later that morning Arnoldo A vila returned from work to his residence at the home

of the Madrigals on Schoon Road. He immediately noticed that things were amiss. A

truck l on the property had been moved and tampered with; items from the house were

inside it. Mr. Avila entered the home and encountered an intruder wearing a backpack.

He told Mr. Avila that he was hiding from the police because he had just stolen a car that

he had left on Cemetery Road. He asked if he could hide in the house. Mr. Avila threw

him out and called 911.

      Dispatch alerted officers of the burglary and described the suspect as a man

wearing a black shirt with a square pattern, carrying a black backpack and having wet

feet. A detective reported to the scene and interviewed Mr. Avila. Meanwhile, Deputy

McIlrath drove up Alboro Road. He spotted Mr. Alvarez, whom he knew from prior

contacts, standing in a doorway of a house about a half-mile from the burglary. Since

Mr. Alvarez matched the description of the burglary suspect, the deputy stopped his car

and approached. He asked what was going on and Mr. Alvarez replied that he was



       1 This   was the basis of count II, theft of a motor vehicle.

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No. 32547-4-III
State v. Alvarez


visiting his friend. However, the homeowner denied knowing Mr. Alvarez and wanted

him off his property. Mr. Alvarez was wearing a plaid shirt that was muddied on the

sleeves and down the front; his jeans also were muddy.

       The zipper on the backpack Mr. Alvarez was wearing was pulled halfway down,

exposing "radio equipment," including "stereos and speaker equipment." Report of

Proceedings (RP) at 108. Deputy McIlrath arrested Mr. Alvarez for burglary. Mr. Avila

was transported to the scene and identified Mr. Alvarez as the man inside the house. Mr.

Madrigal subsequently identified the stereo equipment as having been stolen from the

truck. Deputy McIlrath placed Mr. Alvarez in his patrol car and put Mr. Alvarez's

belongings in the trunk of the vehicle.

       Deputy Steve Changala responded to the scene and looked at Mr. Alvarez's shoe

bottoms to observe the print pattern. He later testified that the print pattern was

consistent with the prints observed leading away from the stolen car. The deputy then

drove to the scene of the car wreck and followed the tracks through the vineyard and

across other properties, including a marsh, until they reached the area of Schoon Road.

He returned and obtained Mr. Alvarez's shoes from Deputy McIlrath. Deputy Chang ala

then made new tracks with the shoes beside existing tracks and took pictures for

comparison. The photographs ultimately were admitted during trial without objection.




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No. 32547-4-II1
State v. Alvarez


         The case eventually proceeded to jury trial on the three noted counts. Defense

counsel sought to suppress the shoe print photographs and the stereo equipment

recovered from the backpack, contending that the officers needed his client's consent or a

warrant to seize the items. He noted that the prosecution would be arguing "plain view"

and search incident to the arrest as the basis for using the evidence. Counsel's main

concern was the showing of the stereo equipment to Mr. Madrigal to confirm that the
                                                                                              I
material was taken from his truck.                                                            I
         The trial judge concluded that the initial observation of the stereo equipment was

in either "open view" or "plain view." The subsequent seizure of the backpack and
                                                                                              I
inventory of its contents were conducted incident to the arrest for burglary. RP at 66-67.
                                                                                              I
                                                                                              i
After the State's opening statement, but before the testimony of the first witness, Deputy    I
McIlrath, the court asked for an offer of proof concerning the basis for the arrest. After    f
                                                                                              f
                                                                                              I

hearing the State's proffer, which was reading large excerpts from Deputy McIlrath's          II
                                                                                              t
report, the court concluded that the arrest for burglary was valid and the backpack was

properly seized. RP at 92. The court also concluded that there was no expectation of

privacy in the shoes once Mr. Alvarez was arrested. RP at 94-95.

         The jury found Mr. Alvarez guilty on the three charged counts. The court imposed

standard range terms on each of the offenses. Mr. Alvarez then timely appealed to this

court.




                                              4

No. 32547-4-III
State v. Alvarez


                                        ANALYSIS

       Mr. Alvarez contends that either the trial court erred in finding the arrest lawful

and the backpack contents in "plain view," or his counsel erred in not pursuing the

motion to suppress more vigorously. Because the record amply supports the

determination of probable cause to arrest Mr. Alvarez for residential burglary, his

remaining arguments are moot or without merit.

       A person commits residential burglary when he enters or remains unlawfully in a

dwelling (other than a vehicle) with the intent to commit a crime against a person or

property therein. RCW 9A.52.025(1). Probable cause to arrest "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." State v. Terrovona, 105 Wn.2d

632,643, 716 P.2d 295 (1986). The existence of probable cause is a legal issue that is

reviewed de novo by our appellate courts. State v. Chamberlin, 161 Wn.2d 30, 40, 162

P.3d 389 (2007).

      Mr. Alvarez argues that the totality of the evidence did not support Deputy

McIlrath's decision to arrest him. He acknowledges that Mr. Avila provided "reasonably

trustworthy information that an officer could rely on" concerning the existence of a




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No. 32547-4-III
State v. Alvarez


burglary and the description of the suspect. 2 Br. of Appellant at 11. He takes issue with

the deputy connecting him to the suspect in that crime. The deputy's observations

satisfactorily made that connection.

       Mr. Avila's information described a residential burglary in progress-a strange

man in the house and items of personal property that already had been taken outside to a

truck that had been moved to apparently facilitate carrying away the proceeds of the

larceny. He described the man for the 911 operator. Upon seeing Mr. Alvarez, Deputy

McIlrath testified that he "matched the description." RP at 107, 110. The deputy's report

described for the judge what Mr. Alvarez was wearing-a darkjean shirt with squares

that was muddy on the sleeves, muddied jeans, and a black backpack with stereo

equipment visible. RP at 91. Although Mr. Avila's initial report did not describe what

had been taken and he later would testify that the backpack was zippered closed when he

observed it, the deputy's observations were consistent both with what Mr. Avila had seen

and what a burglar might be carrying away from the scene. In other words, the items




      2  These concessions were proper. A named citizen informant is presumptively
reliable. State v. Wible, 113 Wn. App. 18,24, 51 P.3d 830 (2002) (quoting State v.
Northness, 20 Wn. App. 551, 557-58, 582 P.2d 546 (1978». Reasonable suspicion for a
stop may be supplied by an eyewitness report of criminal activity to an officer. State v.
Lee, 147 Wn. App. 912, 918, 199 P.3d 445 (2008), review denied, 166 Wn.2d 1016
(2009).

                                            6

No. 32547-4-III
State v. Alvarez


observed in the partially open backpack enhanced the victim's report since electronic

equipment is frequently stolen and the deputy's observation did not detract from the

information supplied by Mr. Avila. Given that the description "matched," the deputy had

probable cause to believe Mr. Avila was the burglar. Coupled with his lie about visiting

his friend when the deputy contacted him outside Mr. Zach Scole's house, there was

ample information to lead a reasonable law enforcement officer in Deputy McIlrath's

position to believe Mr. Alvarez had committed residential burglary.

       Mr. Alvarez argues that there was no reliable information describing how the

suspect could go from the burglary at the Madrigal's residence to Mr. Scole's house.

There was no requirement that the deputy know how the suspect could traverse the half

mile during the period while Mr. Avila was calling in the crime and deputies were

responding to it. The issue was whether he fit the description, not how he got to where he

was observed. Even if it were probable that other muddy men with wet shoes wearing a

black backpack and dark patterned shirt were within a half mile of the Madrigal home,

that information would not have detracted from the fact that Mr. Alvarez fit the

description. The hypothetical existence of other people fitting the description did not

negate the fact Mr. Alvarez also did so.




                                             7

No. 32547-4-II1
State v. Alvarez


       The deputy had probable cause to arrest Mr. Alvarez for residential burglary. The

trial court correctly denied the motion to suppress the evidence. 3

       Our conclusion moots discussion of the "plain view" argument since the evidence

was seized, and used, pursuant to the arrest and lawful search incident to that arrest. We

do note, however, that if the deputy had in fact seized4 the backpack on the basis of the

observations without first arresting Mr. Alvarez, this would present an "open view"

problem rather than a "plain view" issue. A "plain view" occurs in the situation where an

officer is intruding in a constitutionally protected place at the time he makes an

observation, while an "open view" occurs from a "non constitutionally protected area."

State v. Kennedy, 107 Wn.2d 1, 10, 726 P.2d 445 (1986). Here the deputy made his

observations from outside the Scole home in an open area where Mr. Alvarez had no

constitutionally protected interests.




       3 Mr.  Alvarez does not independently challenge the use of his tennis shoes to compare
the print to the prints found in the vineyard. It is proper for police to use shoes seized from a
defendant to investigate prints left at the scene of an unrelated crime. State v. Cheatam, 150
Wn.2d 626, 633-43,81 P.3d 830 (2003) (officers who arrested defendant for rape could use
his shoes to compare the prints to those left at the scene of an unrelated rape).
       The evidence observed by the officer was not the product of a search and would
       4
be admissible even if the stereo equipment had been suppressed. See State v. Khounvichai,
149 Wn.2d 557, 564-66,69 P.3d 862 (2003).


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No. 32547-4-II1
State v. Alvarez


      Finally, the conclusion that probable cause existed negates the need to discuss the

derivative argument that counsel performed ineffectively. To prevail on such a claim, Mr.

Alvarez would have to show both that his counsel erred and that the error prejudiced him.

Strickland v. Washington, 466 U.S. 668, 689-91, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

He cannot demonstrate error on these facts. Probable cause did exist for the arrest.

      Affirmed.
      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:



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