STATE OF WASHINGTON v. MATTHEW ALLEN LOGES (2011)

- This appeal follows convictions for driving with a suspended license and being in physical control of a motor vehicle while under the influence.   The defendant assigns error to the court's conclusion that the police had authority to search the truck without a warrant as part of their community caretaking function.   And the defendant contends that the court's findings that he drove the truck or that he was in physical control of it are not supported by the evidence.   We conclude that the search of the truck fell within the police officers' community caretaking functions and that the court's findings are supported by reasonable inferences from circumstantial evidence produced at trial.   We, therefore, affirm the convictions.

The court concluded that the search of the truck was proper as part of a community caretaking function (it was on a public highway) and that this provided an exception to the general requirement of a search warrant.   It denied the motion to suppress the ignition key and then found Mr. Loges guilty of both charges.

DISCUSSION

Community Caretaking

Mr. Loges contends that there was no need to search the truck as part of a community caretaking function.   He argues that there were other ways to protect motorists using the highway.   And he argues that the search amounted to a warrantless criminal investigation rather than protection of the community.

Whether or not this search fell within the community caretaking exception to the general requirement of a warrant is a question of law that we will review de novo.  State v. Schlieker, 115 Wn.App. 264, 269, 62 P.3d 520 (2003).   A warrantless search is permissible if an exception to the general requirement of a warrant applies.  Id. at 269-70.   Police officers are obligated and expected to help people and protect property.  State v. Gibson, 104 Wn.App. 792, 796, 17 P.3d 635 (2001).   The emergency exception, which recognizes a police officer's community caretaking responsibilities, is one exception to the general requirement of a warrant.  Schlieker, 115 Wn.App. at 270.   To invoke this exception, the State must show that (1) the officer subjectively and reasonably believed someone needed health or safety assistance;  (2) the search was not primarily motivated by intent to arrest and seize evidence;  and (3) probable cause associated the need for assistance with the place to be searched.  State v. Nichols, 20 Wn.App. 462, 465-66, 581 P.2d 1371 (1978).

Mr. Loges argues that, under the circumstances here, the officers unreasonably searched the truck and their concern for public safety was merely an excuse to search for evidence of crimes.   That is certainly one take on the testimony introduced in the trial court.   But it is not the conclusion the trial judge drew from that testimony.   And that was his prerogative.  State v. Bencivenga, 137 Wn.2d 703, 708-09, 974 P.2d 832 (1999).

A disabled truck without lights stopped on a highway at night represents a hazard that we would expect police to promptly address.   And, here, the police did just that.   Officer Griffiths and Trooper Metz were concerned for their safety and the safety of the traveling public.  “[B]oth wanted to move the truck as quickly as possible due to safety concerns of the truck being in the lane of travel.”   Clerk's Papers at 24 (Finding of Fact 12).   The search for a key to the truck to move it was reasonable and appropriate.   The fact that the truck key also supported the element of the crimes of physical control and driving with license suspended does not mean that the police had to ignore the obvious hazard.   The trial judge struck the proper balance between public safety and privacy and concluded that the search was justified by the emergency exception.  Schlieker, 115 Wn.App. at 271.

Driving with License Suspended

Mr. Loges next contends that the court's finding that he drove the truck is not supported by the record.   His essential argument is that there is no direct evidence that he drove the truck.   He is correct.   But, of course, that does not end the discussion.

Evidence can be either direct or circumstantial.  State v. Liden, 138 Wn.App. 110, 117, 156 P.3d 259 (2007).   Here, the court could easily infer from circumstantial evidence that Mr. Loges moved the truck from alongside the highway to a travelled portion of the highway, where police ultimately found it.   And, from this, the court could conclude that Mr. Loges drove a motor vehicle, a requisite element of driving with a suspended license.  RCW 46.20.342(1)(b).

Mr. Seroka and Ms. Whitney testified that Mr. Seroka drove the truck to where the officers found it.   But the court did not believe them.   And it was privileged to do that.  State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).   The evidence was sufficient to support a finding that Mr. Loges drove the truck, and we, therefore, affirm the conviction for second degree driving while license suspended.

Physical Control

Finally, Mr. Loges contends that the evidence does not support the court's conclusion that he was in actual possession of the truck because nothing shows he knew that a key was in the truck.

The State must show actual physical control of a motor vehicle while under the influence of alcohol;  more specifically, it must show actual physical control of a vehicle and an alcohol concentration of 0.08 or higher within two hours after being in actual physical control of the vehicle.  RCW 46.61.504(1)(a).  “When the evidence gives rise to a reasonable inference that the vehicle was where it was by a person's choice, that person is in actual physical control of the vehicle.”  State v. Votava, 149 Wn.2d 178, 184, 66 P.3d 1050 (2003).

We have already concluded that reasonable inferences from the evidence here support a finding that Mr. Loges drove the truck to the place where police found it.   The State did not have to show that Mr. Loges had a key in hand or was aware of the key in the truck for the judge to infer that the vehicle was where it was because Mr. Loges drove it there.  Id. And that finding supports the conclusion that Mr. Loges was in actual physical control of the vehicle.  Id. We, therefore, affirm Mr. Loges's conviction for felony physical control of a motor vehicle while under the influence of intoxicating liquor.

We affirm the convictions.

A majority of the panel has determined that 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.

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Sweeney, J.

WE CONCUR:

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Kulik, C.J.

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Korsmo, J.

Sweeney, J. FACTS On May 5, 2008, at 11:20 p.m., Richland Police Officer James Griffiths responded to a report of a disabled vehicle on State Route 240 near Van Giesen Street in Richland, Washington.   Officer Griffiths drove to the site and saw a Dodge pickup truck sitting in the right northbound lane of travel.   He parked behind the truck, turned on his emergency lights, and walked up to the truck.   The truck was not running.   Matthew Loges was passed out in the driver's seat.   Officer Griffiths did not see a key in the ignition.   He roused Mr. Loges.   Mr. Loges said a friend had been driving the truck but refused to tell the officer the friend's name.   The officer smelled alcohol.   He learned that Mr. Loges's license was suspended and that there was a warrant for his arrest.   Officer Griffiths arrested Mr. Loges on the warrant and put him in the patrol car.   State Trooper Jodi Metz then searched the truck for a key.   She found an ignition key on the transmission hump between the seats and moved the truck off the highway and onto the shoulder.   Officer Griffiths then added physical control of a motor vehicle while under the influence to Mr. Loges's charges.   The State ultimately charged Mr. Loges with felony physical control of a motor vehicle while under the influence and second degree driving while license suspended.   He moved to suppress the evidence-the key.   He argued that Trooper Metz illegally searched the truck.   The court combined a hearing on the suppression motion with a bench trial and heard from all of those involved with the evening's events.   David Seroka, Mr. Loges's co-worker, testified that he used Mr. Loges's truck to drive him and Mr. Loges to and from work because the State had suspended Mr. Loges's license.   Mr. Seroka said that he drove Mr. Loges's truck on the night of the arrest.   Mr. Seroka claimed he drove Mr. Loges to another co-worker's house after work, where Mr. Loges drank alcohol.   Mr. Seroka wanted to go home after a few hours, so he asked his wife to pick him up.   Mr. Loges decided he wanted to go home before she arrived.   So, when she arrived, Mr. Seroka drove the truck toward Mr. Loges's house and Mr. Seroka's wife followed.   The truck overheated, and Mr. Seroka had to coast to the side of the road.   He said he then left Mr. Loges in the truck, took the keys, and left with his wife to get a car dolly.   The idea was to tow the disabled truck.   Mr. Loges was arrested and his truck had been towed before Mr. Seroka returned.