Caseflicks

Washington Supreme Court • 1995

State v. McFarland

899 P.2d 1251 | 127 Wash. 2d 322

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Takeaway

In short, this case bars defendants from using a direct appeal to litigate an unpreserved suppression issue without a record showing actual prejudice, and it rejects any automatic rule that counsel is ineffective for failing to file a suppression motion.

Background

The court consolidated two direct appeals involving defendants who did not challenge their warrantless arrests in the trial court. James McFarland was arrested without a warrant the day after an armed home invasion and attempted robbery in which one assailant was killed. Police connected him to the crime through his physical description, his association with the deceased assailant, and a car that leaked oil near the route of escape. After his arrest, McFarland made statements placing himself with the deceased and two shotguns shortly before the crime. Later-obtained blood and medical evidence also linked him to a stocking mask found near the scene. He was convicted of burglary, kidnapping, attempted robbery, and unlawful possession of a firearm.

Michael Fisher was arrested without a warrant after an undercover officer entered an open apartment and bought apparent cocaine from Fisher's companion, Connor, with Fisher's authorization. An arrest team entered the open apartment about 30 seconds after receiving the radio report, arrested Fisher and Connor, and recovered the marked buy money and additional cocaine from Connor. Fisher was convicted of delivery and possession with intent to deliver cocaine, with school-zone enhancements.

Neither trial attorney moved to suppress evidence on the ground that the arrest was unlawful. On appeal, both defendants challenged their arrests for the first time while claiming ineffective assistance of counsel. The Court of Appeals held in each case that counsel's failure to seek suppression was per se deficient under State v. Tarica, but found the records insufficient to determine prejudice. It denied McFarland relief pending a personal restraint petition, while it remanded Fisher's case for a suppression hearing.

Issues

Issue #1

Whether a defendant may challenge a warrantless arrest for the first time on direct appeal as a manifest constitutional error under RAP 2.5(a)(3).

Holding

No, unless the existing appellate record affirmatively shows actual prejudice from the alleged constitutional error; neither defendant made that showing.

Reasoning

RAP 2.5(a) generally bars issues raised for the first time on appeal. Although RAP 2.5(a)(3) permits review of a manifest error affecting a constitutional right, the exception is narrow. A defendant must identify a truly constitutional error and demonstrate that, in the context of the trial, the error actually affected the defendant's rights.

Actual prejudice must appear in the record on appeal. When the facts needed to decide the asserted constitutional claim were never developed below, the error is not manifest. A defendant cannot establish manifest error merely by alleging that a suppression motion might have succeeded.

Neither defendant made the required record-based showing. McFarland's record suggested that police had substantial probable-cause evidence before his arrest, including his matching description, his oil-leaking car, and his recent association with Flick. Moreover, some later physical evidence was acquired through court orders supported by an independent probable-cause showing.

Fisher did not dispute probable cause; he argued that officers lacked exigent circumstances to make a warrantless arrest in the apartment. But the record suggested the presence of several recognized exigencies, making it likely that a suppression motion would have failed. Because neither record showed that suppression probably would have been granted, neither defendant established a manifest constitutional error reviewable for the first time on appeal.

Issue #2

Whether counsel's failure to move to suppress evidence following a warrantless arrest is per se deficient representation under the first prong of Strickland.

Holding

No. A failure to seek suppression is not per se deficient; the defendant must overcome the strong presumption that counsel acted effectively by showing from the trial record that no legitimate strategic or tactical reason supported counsel's decision.

Reasoning

Ineffective-assistance claims require proof that counsel performed deficiently and that the deficiency caused prejudice. The court begins with a strong presumption of effective representation, and on direct appeal it evaluates the claim from the record made in the trial court rather than from facts outside that record.

The court rejected State v. Tarica's rule that counsel is per se deficient whenever there may be a question about the validity of a search or seizure. That rule improperly reverses the presumption of competence by requiring the record to supply a reason for counsel's conduct instead of requiring the defendant to prove deficient performance.

A lawyer may have legitimate reasons not to request a suppression hearing, including a reasoned assessment that the motion lacks merit or that pursuing it would undermine the defense strategy. McFarland's counsel had unsuccessfully attacked the physical evidence on related probable-cause grounds, which supported an inference that counsel made a reasoned choice not to challenge the arrest itself. Fisher's record did not disclose why counsel declined to seek suppression, and the apparent exigencies provided a plausible explanation.

Because neither defendant established from the record that counsel lacked a legitimate tactical or strategic basis for declining to seek suppression, neither satisfied Strickland's deficient-performance prong. The court overruled Tarica to the extent it adopted a per se-deficiency rule.

Issue #3

Whether either defendant established Strickland prejudice, and whether an appellate court may remand to develop a suppression record on direct appeal.

Holding

No. Neither defendant showed a reasonable probability of a different result, and a personal restraint petition—not a remand for a new suppression hearing—is the proper vehicle for presenting necessary evidence outside the direct-appeal record.

Reasoning

To prove Strickland prejudice, a defendant must show a reasonable probability that the outcome would have differed absent counsel's error. In this setting, that required an affirmative, record-based showing that a suppression motion probably would have been granted and that suppression would likely have changed the result.

The existing records provided substantial grounds to deny suppression in both cases. Thus, even apart from the failure to prove deficient performance, neither defendant established that counsel's omission actually prejudiced the defense.

The court agreed with the Court of Appeals that the records were inadequate to resolve the unlitigated suppression issues, but it rejected a remand to expand the record in Fisher's direct appeal. A personal restraint petition is the appropriate procedure when review depends on facts outside the trial record. Such a petition may be filed alongside a direct appeal and can address both constitutional and ineffective-assistance claims requiring additional evidence.