Opinion
No. 29059-0-III.
Filed: July 19, 2011. UNPUBLISHED OPINION.
Appeal from a judgment of the Superior Court for Benton County, No. 10-1-00131-3, Robert G. Swisher and Craig J. Matheson, JJ., entered July 8, 2010.
Affirmed by unpublished opinion per Siddoway, J., concurred in by Sweeney and Brown, JJ.
After losing a motion to suppress methamphetamine found during a search of her backpack, Tammy Jean Allstead was convicted of unlawful possession of a controlled substance in a stipulated facts trial. On appeal, she challenges only the trial court's conclusions at the suppression hearing, arguing that the State failed to meet its burden of proving by clear and convincing evidence that she freely and voluntarily consented to the search. Because the evidence and the trial court's unchallenged findings make it highly probable that Ms. Allstead's consent to the search was free and voluntary, we affirm.
FACTS AND PROCEDURAL BACKGROUND
In November 2009, officers with the Kennewick Police Department executed a search warrant for stolen property at the home of Ms. Allstead's brother. When they arrived, Ms. Allstead was at her brother's home checking on his pets. She was ordered outside and placed in handcuffs by Detective Brian Pochert, who told her that she was not under arrest but was being detained while officers performed a sweep of the property.
While Ms. Allstead was being detained and was standing near Detective Pochert, officers conducting the search discussed breaking down a locked exterior door to a basement. Ms. Allstead told officers that she had a key in her truck, in or near her backpack, that they could use to enter the basement. There is conflicting testimony as to how officers procured the key but agreement that, in the process of obtaining the key, officers delivered the backpack to the area where she and Detective Pochert were standing.
After Ms. Allstead had been detained for less than 15 minutes, Detective Pochert was told by the lead detective that the scene was secure and he could release Ms. Allstead. Detective Pochert removed the handcuffs and told Ms. Allstead that she was free to go. Having run Ms. Allstead's name for a warrant check and learned that she had a suspended driver's license, however, he told her that she would not be allowed to drive.
After lingering for a few moments and deciding what to do in light of word that she would not be allowed to drive the truck, Ms. Allstead prepared to leave. At that point, her backpack was searched by Detective Pochert, under circumstances that are in some dispute, although both Ms. Allstead and the detective agree that he asked her if she had any stolen property in her backpack, she responded that she did not believe in theft, and she was not given Miranda warnings or informed of her right to refuse a search before her backpack was searched. Detective Pochert discovered methamphetamine in the backpack and arrested Ms. Allstead, who was later charged with unlawful possession of a controlled substance.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Ms. Allstead moved to suppress the methamphetamine. The following findings entered by the court following the CrR 3.6 hearing are unchallenged:
1. [Ms. Allstead] was detained, not arrested, by Detective Brian Pochert on November 5, 2009 when officers were at 22703 S. Oak Street in Kennewick to execute a search warrant. She was placed in handcuffs.
2. Detective Rick Runge advised Detective Pochert that a sweep of the location was complete and [Ms. Allstead] could be released.
3. Detective Pochert released [Ms. Allstead] from handcuffs and told her she was free to go.
4. [Ms. Allstead] testified that she was getting ready to walk away from the residence; at that point she was not restricted, detained, or otherwise in custody.
5. Detective Pochert then asked [Ms. Allstead] if she had any stolen property [in] her backpack. [She] replied that she did not believe in theft.
6. Detective Pochert asked [Ms. Allstead] if he could search her backpack and she stated yes.
7. [Ms. Allstead] was not provided with any warnings prior to having her backpack searched. She was not advised that she had the right to refuse permission to search the backpack.
Clerk's Papers (CP) at 33-34. Based upon these unchallenged findings, the court entered the following conclusions of law:
1. The motion to suppress is denied because [Ms. Allstead] gave permission to Detective Pochert to search her backpack.
2. Detective Pochert was not required to provide [Ms. Allstead] with any advisement of rights or warnings because [she] was free to leave [as] she consented to the search.
CP at 34.
The trial court found Ms. Allstead guilty in a stipulated facts trial. She timely appealed, challenging the trial court's decision on her suppression motion.
ANALYSIS
The sole issue on appeal is whether the State met its burden of demonstrating that Ms. Allstead's consent to the search of her backpack was free and voluntary.
As a general rule, a warrantless search is per se unreasonable under both the Fourth Amendment and article I, section 7 unless the search falls within one or more specific exceptions to the warrant requirement. State v. Ross, 141 Wn.2d 304, 312, 4 P.3d 130 (2000). A consent search is one of those exceptions. See Wash. Const. art. I, § 7; State v. Hendrickson, 129 Wn.2d 61, 71, 917 P.2d 563 (1996). For consent to be valid, a person must consent freely and voluntarily. State v. O'Neill, 148 Wn.2d 564, 588, 62 P.3d 489 (2003).
If the free and voluntary character of the consent is challenged, the State must prove that the individual consented freely and voluntarily, not as a result of duress or coercion. Id.; State v. Smith, 115 Wn.2d 775, 789, 801 P.2d 975 (1990). Whether consent was voluntary is a question of fact to be determined from the totality of the circumstances. O'Neill, 148 Wn.2d at 588 (citing State v. Bustamante-Davila, 138 Wn.2d 964, 981, 983 P.2d 590 (1999)).
The prosecution must show the free and voluntary character of the consent by clear and convincing evidence. Smith, 115 Wn.2d at 789 (citing State v. Nelson, 47 Wn. App. 157, 163, 734 P.2d 516 (1987)). Clear and convincing evidence exists when the evidence shows the ultimate fact at issue to be highly probable. In re Dependency of K.S.C., 137 Wn.2d 918, 925, 976 P.2d 113 (1999). The court's factual findings must be upheld if supported by substantial evidence from which a rational trier of fact could find the necessary facts by clear, cogent, and convincing evidence. Id. (citing In re Dependency of C.B., 61 Wn. App. 280, 286, 810 P.2d 518 (1991)). Findings of fact from the suppression hearing to which error is not assigned are considered verities on appeal. Bustamante-Davila, 138 Wn.2d at 976. Review of conclusions of law entered by the trial court at a suppression hearing is de novo. State v. Carter, 151 Wn.2d 118, 125, 85 P.3d 887 (2004).
Among the factors considered in a "totality of circumstances" analysis are whether Miranda warnings were given prior to obtaining consent, the degree of education and intelligence of the consenting person, and whether the consenting person had been advised of his or her right not to consent. Smith, 115 Wn.2d at 789. No one factor is determinative. Id. The court may also consider other factors, such as whether the person had been cooperating or refusing prior to giving consent, State v. Flowers, 57 Wn. App. 636, 645, 789 P.2d 333, review denied, 115 Wn.2d 1009 (1990); whether the defendant was in custody, O'Neill, 148 Wn.2d at 589; whether the person was under the influence of drugs or intoxicants, State v. Sondergaard, 86 Wn. App. 656, 660-61, 938 P.2d 351 (1997), review denied, 133 Wn.2d 1030 (1998); and whether law enforcement had to repeatedly request for consent, O'Neill, 148 Wn.2d at 591. Although knowledge of the right to refuse consent is relevant, it is not absolutely necessary to a valid consent. Nelson, 47 Wn. App. at 163.
Ms. Allstead emphasizes the following factors as weighing against voluntary consent: (1) moments before the search she had been detained in handcuffs and there were many police officers at the scene, (2) she was not advised of her Miranda rights, and (3) she was not advised of her right to refuse the search. We address each of these factors in turn.
Alleged coercive circumstances. Officers executing a search warrant at a residence may briefly detain occupants of the residence in order to ensure officer safety and an orderly completion of the search, even without probable cause or reasonable suspicion of criminal activity. State v. Smith, 145 Wn. App. 268, 275, 187 P.3d 768 (2008) (quoting State v. King, 89 Wn. App. 612, 618-19, 949 P.2d 856 (1998)). Where reasonable under the circumstances, the force used to detain an occupant can include correctly applied handcuffs. Muehler v. Mena, 544 U.S. 93, 99-100, 125 S. Ct. 1465, 161 L. Ed. 2d 299 (2005). Ms. Allstead's detention during the period the scene was being secured was unquestionably a "seizure" within the meaning of the Fourth Amendment. Michigan v. Summers, 452 U.S. 692, 696, 101 S. Ct. 2587, 69 L. Ed. 2d 340 (1981).
This detention had ended before Ms. Allstead was asked for or gave consent to the search, and she had been told that she was free to leave. Nonetheless, Ms. Allstead argues that because she had so recently been restrained, in handcuffs, and was subject to a show of force by the police, it was not reasonable to conclude that her consent was voluntary. Br. of Appellant at 7. For consent to be valid, it must be obtained without coercion either by explicit or implicit means. State v. Werth, 18 Wn. App. 530, 534, 571 P.2d 941 (1977) (citing Bumper v. North Carolina, 391 U.S. 543, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968)), review denied, 90 Wn.2d 1010 (1978). The gist of her argument appears to be that the prior detention and presence of numerous officers made this a situation "rife with coercion," as was found to vitiate consent in Werth. Id. at 535. In Werth, however, consent was given at a time when the defendant had been told that her house was surrounded; was ordered out of her home; was told to keep her hands in plain sight; and observed multiple officers, one armed with a shotgun — circumstances that compelled the court to conclude that she was under arrest. Id. Ms. Allstead also cites O'Neill for its holding that "any restraint is a factor to consider," but O'Neill, like Werth, addressed a restraint that existed at the time the consent was given. 148 Wn.2d at 589 (although not in custody or under arrest, Mr. O'Neill had been seized within the meaning of Terry ).
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
Here, by contrast, Ms. Allstead's short period of detention (itself far less coercive than the circumstances in Werth) was over. The fact that Detective Pochert had released Ms. Allstead from handcuffs, told her she was free to go, that she was getting ready to walk away, and that she was unrestricted, undetained, and not otherwise in custody when she gave consent, cut sharply against the significance that she asks us to attach to her prior detention and the presence of a number officers, engaged not in any dealings with her but with their search of her brother's property.
No Miranda warning. While Detective Pochert did not give Ms. Allstead Miranda warnings before asking consent to search her backpack, she was never in custody. The fact that no Miranda warning was given is not a factor if no warning was required. O'Neill, 148 Wn.2d at 588; Nelson, 47 Wn. App. at 163 ( Miranda warnings are not a prerequisite to voluntary consent).
No notice of right to refuse consent. Ms. Allstead also was not told prior to granting consent that she had the right to refuse consent. The failure of the police to warn an individual of his or her right to refuse consent to a warrantless search has been found to be a factor, but not dispositive, in assessing the voluntariness of consent under a Fourth Amendment analysis. State v. Ferrier, 136 Wn.2d 103, 110, 960 P.2d 927 (1998) (citing State v. Shoemaker, 85 Wn.2d 207, 212, 533 P.2d 123 (1975) (citing, in turn, Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973))). When the subject of a search is not in custody and the question is whether consent is voluntary, knowledge of the right to refuse consent is not a prerequisite of a voluntary consent. O'Neill, 148 Wn.2d at 588 (citing Schneckloth, 412 U.S. at 248-49).
In Ferrier, our Supreme Court held that article 1, section 7 of the Washington Constitution requires officers to inform a person who is consenting to a search of his or her home that he or she may lawfully refuse consent, limit the scope of the search, and revoke consent at any time, and that the failure to provide the warnings prior to entering the home vitiates any consent given thereafter. 136 Wn.2d at 118-19. The decision relied on the expectation of privacy in the home as "clearly `one which a citizen of this state should be entitled to hold,' because `the home receives heightened constitutional protection.`" Id. at 118 (quoting City of Seattle v. McCready, 123 Wn.2d 260, 270, 868 P.2d 134 (1994); State v. Young, 123 Wn.2d 173, 185, 867 P.2d 593 (1994)). The requirements of Ferrier were extended to a search of a hotel room in State v. Kennedy, 107 Wn. App. 972, 29 P.3d 746 (2001), review denied, 145 Wn.2d 1030 (2002), based on the fact, conceded by the State, that an individual has the same expectation of privacy in his motel room as he would in his private residence. 107 Wn. App. at 974 (citing State v. Davis, 86 Wn. App. 414, 419, 937 P.2d 1110, review denied, 133 Wn.2d 1028 (1997)). The cases are explicitly based on the heightened privacy interest in the home. Washington courts have not extended the requirement to inform an individual of the right to refuse, revoke, or limit consent to other consent searches.
Other factors. For the reasons stated, these circumstances identified by Ms. Allstead do not weigh significantly against a finding of free and voluntary consent. A number of other factors support the trial court's decision. Prior to consenting to the search, Ms. Allstead had voluntarily cooperated with law enforcement officers by disclosing that she had a key to the locked basement and allowing officers to obtain it from her truck. While the record reveals nothing about her intelligence or education, there was no evidence that she was under the influence of drugs or intoxicants. Most importantly, she was notified of the limited purpose and nature of her detention, that she was not under arrest and, prior to any discussion of a search, had been released from handcuffs and told she was free to leave. When asked by Detective Pochert if she had stolen property in her backpack, her response — that she did not believe in theft — implied that she was not troubled or concerned by his interest in what the backpack might contain. The trial court's unchallenged finding is that against this backdrop she had to be asked only once for consent to search, and said yes. Collectively, these factors support a high probability that her consent was voluntary.
We affirm.
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.
SWEENEY, J. and BROWN, J., concur.