Opinion
No. 51823-2-I
Filed: November 29, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Whatcom County. Docket No: 02-1-00642-9. Judgment or order under review. Date filed: 01/09/2003. Judge signing: Hon. Steven J Mura.
Counsel for Appellant(s), Antonio Salazar, Attorney at Law, 810 3rd Ave Ste 308, Seattle, WA 98104-1622.
Amandeep Singh (Appearing Pro Se), 1389 Bradley Lane # D, Bellingham, WA 98225.
Counsel for Respondent(s), Philip James Buri, Buri Funston PLLC, 1601 F Street, Bellingham, WA 98225-3011.
Rosemary Hawkins Kaholokula, Whatcom Cty Pros Atty Office, 311 Grand Ave Ste 201, Bellingham, WA 98225-4038.
Hilary A. Thomas, Whatcom County Prosecutors Office, 311 Grand Ave Ste 201, Bellingham, WA 98225-4038.
Amandeep Singh appeals his conviction of unlawful possession of a controlled substance with intent to deliver and his conviction of conspiracy to unlawfully possess a controlled substance with intent to deliver. He argues that the trial court erred in allowing into evidence (1) marijuana found in the vehicle in which he was a passenger, (2) testimony about the statements of an outside caller to his cellular phone, and (3) testimony about his alleged silence after he was read his Miranda rights. He also argues that the information failed to state an essential element of the offense of conspiracy to unlawfully possess a controlled substance with intent to deliver. We affirm the admission into evidence of the marijuana, the testimony about the statements by the caller, and the testimony concerning his alleged post-Miranda silence. We accept the State's concession of error on Singh's conspiracy conviction. We therefore affirm the conviction for possession of marijuana with intent to deliver, and we reverse and dismiss without prejudice the conviction for conspiracy to possess marijuana with intent to deliver.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
FACTS
On May 13, 2002, United States Border Patrol cameras detected a Dodge Durango as it made an illegal border crossing from British Columbia to Washington through an area known for drug smuggling. The windows were tinted, and Border Patrol agents could not see inside the vehicle. The Border Patrol lost surveillance of the Durango when it left the area, but an agent was able to read the license plate from images taken by camera. The agent traced the license plate and found that the Durango was rented to a person with an address in Bellingham, Washington.
Agent Keith Olson staked out the Bellingham address, and the Durango arrived soon afterward. Olson pulled up behind the Durango to block it from leaving and gave repeated orders for the occupants to get out. Ultimately, Amandeep Singh came out of the passenger side and Karamjit Singh came out of the driver's side. Both men were handcuffed and placed in patrol cars.
Olson then looked inside the Durango to see whether other people were inside. Instead, Olson saw two large hockey bags in the back. He recognized the hockey bags as a common transport method for marijuana. Border Patrol agents transported the Durango to the Bellingham Border Patrol station. Amandeep Singh and Karamjit Singh were taken to the Bellingham station as well.
Drug-sniffing dogs alerted Border Patrol agents to the presence of marijuana inside the hockey bags. Agents opened the bags and found 67 pounds of marijuana. The Border Patrol contacted the Drug Enforcement Agency, and they assigned Tim Rybka to the case.
Border Patrol agents removed personal items such as compact discs and cellular phones from the van. Olson asked Amandeep Singh and Karamjit Singh to identify the items that belonged to them and then placed the items in corresponding piles.
Singh alleges that he asserted his innocence in his conversations with different officers at the Border Patrol station, including Rybka. Rybka says that he read Singh his Miranda rights and tried to interview Singh, but that Singh exercised his right to remain silent and did not respond to his questions.
A cellular phone in the pile of Amandeep's items rang while Rybka was interviewing Karamjit. According to Rybka, he first tried to solve the problem by turning the phone off and on, but when the phone kept ringing, he answered it.
According to Rybka, he said something like, `Hi, are you ready to do the deal?' The caller said, `Yeah, I'm ready. I have my backpack ready.' Rybka said, `Backpack? This stuff weighs over a hundred pounds.' The caller said, `I didn't know I was going to get that much,' then asked for `Aman' and `Karamjit.' Rybka told the caller that Aman and Karamjit were out getting coffee. The caller agreed to a meeting and said he would call back in fifteen minutes.
Amandeep Singh was ultimately charged with two counts: possession of marijuana with intent to deliver (Count I) and conspiracy to possess marijuana with intent to deliver (Count II). The amended information for the conspiracy charge alleged that Amandeep and Karamjit agreed with each other to unlawfully possess marijuana but did not allege an agreement with a third person.
Before trial, Singh challenged his arrest and moved to suppress the items found in the Durango. He argued that the Border Patrol had no right to stop the Durango, arrest him, or search the vehicle without a warrant. He also argued that the State could not rely on the functional equivalent of the border doctrine because of the gap in surveillance. The court made findings of fact that about thirty-five minutes elapsed between the border crossing and the arrival of the Durango at the Bellingham address and that a vehicle going the speed limit normally needs between fifty and fifty-five minutes to make the same journey. The court determined that federal law was controlling because the search and arrest involved only federal enforcement of federal laws. The court concluded that the Border Patrol had probable cause to make an arrest on the basis of an illegal border crossing, that the search of the Durango was valid as a search incident to arrest, that the Border Patrol had reasonable certainty that an item illegally crossed the border in the Durango, and that the search was valid as an extended border search. The court denied Singh's motion to suppress the evidence.
Also before trial, the State asked the court under CrR 3.5 to allow into evidence Singh's admission that he was the owner of the cellular phone. Singh argued against admission on the ground that he made the statement during a custodial interrogation requiring a Miranda warning. The court concluded that Olson's questioning was not an interrogation requiring a Miranda warning, that it was part of an administrative procedure, and that Singh's statement of ownership was admissible.
Singh made a motion in limine to exclude the statements of the caller to his cellular phone as hearsay. The State argued that the caller's statements were not hearsay because they were not offered for the truth of the matters asserted. Instead, the State argued, the statements were used to show the implied belief of the speaker. The court allowed Rybka to testify about the caller's statements.
The issue of Singh's alleged post-Miranda silence arose four different times at trial. The first time occurred when Singh's counsel asked Rybka whether he had asked Singh about ownership of the cellular phone. Rybka answered that Singh invoked his right to remain silent.
Q It's true, is it not, that Mr. Singh never told you either one of those cell phones was his?
A When I read him his rights he invoked his right to remain silent.
Q It's true, is it not, that Mr. Singh did not tell you that either one of those phones was his?
A Correct.
The second time occurred when Singh testified in his own defense. He told the court that when he was taken to the Border Patrol station, he spoke to one of the Border Patrol agents. He also testified that he didn't know about the marijuana in the Durango, even after he spoke with authorities at the station. On cross-examination, the State asked Singh about events at the Border Patrol station and then addressed his alleged post-Miranda silence to challenge the accuracy of his testimony.
Q You indicated when you were taken to the Border Patrol station you were asked a few questions and then they took the marijuana out of the vehicle. You were sleeping while you were at the Border Patrol station, correct?
A I'm sleeping at the time Mr. Rybka showed up. He wanted to talk to me.
Q And when Agent Rybka showed up and wanted to talk to you, your testimony was that he asked you some questions and you didn't know the answers to the questions, correct?
A Yeah. He asked me about all the things, do you know that, and I told him I don't know nothing about that, what happened, you know.
Q The truth is that he didn't really ask you any questions though, correct? Because you told him you didn't want to say anything. You invoked your right to remain silent.
A I told him I know nothing. I don't know what happened, you know. I just told him that.
Q You didn't mention to him all these other facts that you are testifying to at trial, did you?
A I don't remember.
The third time occurred when the State challenged Singh's testimony on recross-examination.
Q Now, when you are at the station and Agent Rybka was asking you questions, he informed you of your constitutional rights, right to remain silent, right to lawyer, all those things, correct?
A Yeah. We talk.
Q After he advised you of those rights, you said you didn't want to say anything, you didn't want to talk, correct?
A I didn't say that. He asked me about that thing in the Durango.
Q So you're saying you went on and told him some stuff, correct?
A No. I told him I don't know nothing about it. That's it.
The fourth time occurred when defense counsel called Rybka as a direct witness and examined him about the accuracy of his testimony with regard to Singh's actions at the Border Patrol station.
Q Agent Rybka, isn't it true that while at the U.S. Border Patrol station here in Bellingham on the 13th of May, 2002, Monday, Mr. Singh attempted to tell you of his innocence and of what transpired during the day but you refused to listen to him?
A No, that's not true.
Q Isn't it true that he told you that the Durango had been driven by someone else?
A No, that's not true.
Q Is it your testimony he refused to talk to you completely?
A It's my testimony that after I woke him up and pulled him out and read him his rights, he invoked his right to remain silent. All questioning and communication with him ceased at that point and I put him back in his cell.
Q There was no communication other than that?
A That's correct.
MR. TASKER: No further questions.
Amandeep Singh was convicted on both counts. He appeals.
ANALYSIS
We begin by examining Singh's argument that the State lacked legal justification for its warrantless arrest and search and that the evidence derived from the search should therefore have been suppressed. Conclusions of law entered in connection with a suppression order are reviewed de novo. State v. Cardenas, 146 Wn.2d 400, 407, 47 P.3d 127 (2002), 57 P.3d 1156, cert. denied, 538 U.S. 912 (2003). The State argues that Olson had probable cause to arrest Singh and that he searched the vehicle as a valid search incident to arrest. The State also argues that Olson had the right to search the vehicle without a warrant as an extended border search and as a functional equivalent to a border search.
First, the State argues that Olson had probable cause to arrest Singh for making an illegal border crossing and therefore had the right to conduct a search incident to arrest. Any person driving a vehicle into the United States is required to report his arrival and present his vehicle, all persons, and any merchandise, including baggage on board, for inspection to the customs official. 19 U.S.C. sec. 1433(b). Any person who crosses into the United States illegally commits a federal offense punishable by a fine and a maximum term of one year in prison. 19 U.S.C. sec. 1436. Incident to a lawful arrest, a police officer may conduct a contemporaneous search of the passenger compartment of an automobile and the containers therein. New York v. Belton, 453 U.S. 454, 460-61, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981); State v. Stroud, 106 Wn.2d 144, 152, 720 P.2d 436 (1986). A police officer can perform a Belton search when the suspect is handcuffed and inside a police vehicle. United States v. Moorehead, 57 F.3d 875, 877-78 (9th Cir. 1995); United States v. Karlin, 852 F.2d 968, 971-72 (7th Cir. 1988).
Olson had an objective basis to arrest Singh for making an illegal border crossing under 19 U.S.C. sections 1433(b) and 1436. The illegal border crossing was demonstrated by facts known to Olson at the time of the arrest. The Durango did not go through an entry station and was not presented for inspection. Instead, it crossed the border at an empty field. Singh exited the Durango in Bellingham only thirty-five minutes after the crossing. These facts constituted a sufficient objective basis for the arrest. Since Olson had an objective basis for arresting Singh, he had legal authority to look inside the Durango as a search incident to arrest.
Next, the State argues that the Durango was subject to a warrantless search under the extended border search doctrine. A police officer may carry out an extended border search without probable cause when the officer has reasonable certainty that any contraband in the vehicle was present when the vehicle entered the United States. United States v. Espericueta-Reyes, 631 F.2d 616, 619-20 (9th Cir. 1980); Alexander v. United States, 362 F.2d 379, 382-83 (9th Cir. 1966). To determine whether an officer had reasonable certainty that any contraband in the vehicle was present at the border crossing, the court must look at the totality of the circumstances of the search, including the time elapsed after the initial border crossing, the distance from the border, and the level of surveillance. Espericueta-Reyes, 631 F.2d at 619-20. Reasonable certainty has been defined as a standard that requires more than probable cause but less than proof beyond a reasonable doubt. United States v. Driscoll, 632 F.2d 737, 739 (9th Cir. 1980). The reasonable certainty analysis can include a defendant's suspicious activities. United States v. Weil, 432 F.2d 1320, 1321-22 (9th Cir. 1970) (upholding a finding of reasonable certainty when the defendant visited Arizona during the summer and claimed to be a sightseer and a photographer, despite a lack of photography equipment, and when the defendant otherwise followed a typical modus operandi of drug smugglers).
Singh argues that the State cannot establish reasonable certainty when the Border Patrol did not keep the Durango under surveillance between the border crossing and the arrival at the Bellingham address. But courts have upheld extended border searches when authorities did not maintain constant surveillance of the vehicle, as long as other circumstances support a reasonable certainty that contraband inside the vehicle was not placed in the vehicle after the border crossing. United States v. Martinez, 481 F.2d 214, 217, 218-19 (5th Cir. 1973) (reasonable certainty was found for a truck carrying 600 pounds of marijuana in a secret compartment when it was found thirty-five minutes after crossing the border at a Laredo caf` four miles from the border); Weil, 432 F.2d at 1321-22 (reasonable certainty was found for a car with marijuana concentrate and other contraband in an isolated area of Arizona despite a fifty-minute gap in surveillance).
Olson's search of the Durango was valid as an extended border search, as the circumstances of the Durango's journey across the border to Bellingham are sufficient to establish a reasonable certainty that any contraband found in the Durango in Bellingham was inside the vehicle when it crossed the border. The fact that the Durango drove to the Bellingham address in thirty-five minutes strongly indicates that the defendants did not have time to stop and load contraband after crossing the border. The gap in surveillance does not defeat this indication. Furthermore, the illegal border crossing is consistent with a plan to smuggle contraband across the border. The illegality of the border crossing therefore constitutes an additional indication that any contraband in the Durango was present during the crossing. The facts of the border crossing and the drive to Bellingham satisfy the totality-of-the-circumstances test and establish the legitimacy of Olson's act of looking inside the Durango as an extended border search.
The State also argues that Olson's search was valid as a functional equivalent of a border search. Under the functional equivalent doctrine, authorities can carry out a warrantless search of a vehicle at the functional equivalent of a border, i.e., the first place where the entrant may practically be detainable. Almeida-Sanchez v. United States, 413 U.S. 266, 272, 93 S. Ct. 2535, 37 L. Ed. 2d 596 (1973); United States v. Cardenas, 9 F.3d 1139, 1147 (5th Cir. 1993). A functional equivalent search requires reasonable certainty on the part of the government that the vehicle crossed the border and that any contraband in the vehicle would have been in the vehicle during its border crossing. United States v. Bennett, 363 F.3d 947, 950 (9th Cir. 2004)
The initial search of the Durango qualifies as a functional equivalent search. The Durango did cross the Canadian border. The fact that the Durango arrived at the Bellingham address in thirty-five minutes indicates that the driver did not have time to stop and take on contraband after its border crossing. Olson looked inside the vehicle and observed the hockey bags, which contained the marijuana at the first practicable opportunity at the address on the lease agreement.
We next examine Singh's argument that the Border Patrol could not make a warrantless search of the hockey bags as a valid search incident to arrest. Once the Durango was taken to the Border Patrol station, Singh argues, the search no longer was contemporaneous with the arrest. We do not need to decide this issue because once Olson observed the hockey bags inside the Durango, he had probable cause to believe the bags contained contraband. A police officer who legitimately stops a vehicle and has probable cause to believe that the vehicle has hidden contraband may conduct a warrantless search of the vehicle that is as thorough as a magistrate could authorize in a warrant. United States v. Ross, 456 U.S. 798, 800, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982). Under this principle, the Supreme Court has ruled that a police officer who has probable cause to believe that a truck contains marijuana can tow the truck to a different location and search the truck three days later without a warrant. United States v. Johns, 469 U.S. 478, 479-81, 105 S. Ct. 881, 83 L. Ed 2d 890 (1985).
Olson had justification for towing the Durango to the Bellingham station, using dogs to smell the hockey bags, and then searching the hockey bags for marijuana. The illegal border crossing in an area known for drug smuggling, the fast drive to Bellingham, and the fact that hockey bags are used to smuggle marijuana are sufficient facts to establish probable cause that the hockey bags contained marijuana. Under the rules governing searches of automobiles, probable cause justified the warrantless search.
We next examine Singh's argument that Olson engaged in a custodial interrogation requiring a Miranda warning when he questioned Singh about ownership of the cellular phone. We apply de novo review to the issue of whether an interrogation was custodial. State v. Lorenz, 152 Wn.2d 22, 30, 93 P.3d 133 (2004). Not every question posed in a custodial setting is equivalent to interrogation requiring Miranda warnings. Interrogations requiring Miranda warnings are not limited to express questioning. The test is whether under all of the circumstances involved in a given case, the questions are reasonably likely to elicit an incriminating response from the suspect. Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980); United States v. Gonzales-Mares, 752 F.2d 1485, 1489 (9th Cir. 1985). The relationship of the question asked to the crime suspected is highly relevant. Gonzales-Mares, 752 F.2d at 1489.
Olson did not conduct an interrogation requiring a Miranda warning when he asked Singh and the other occupant of the Durango which one owned the cellular phone. The Border Patrol was merely determining which of the two owned the cellular phone and the other personal belongings in the Durango in order to inventory the property, and the questions were not likely to elicit an incriminating response.
We next analyze Singh's claim that the trial court erred and admitted hearsay into evidence when it allowed Rybka to testify about statements made by an outside caller to Singh's cellular phone. We review a trial court's decision on the admissibility of evidence for abuse of discretion. State v. Finch, 137 Wn.2d 792, 810, 975 P.2d 967, cert. denied, 528 U.S. 922 (1999). `A `statement' is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.' ER 801(a). ``Hearsay' is a statement . . . offered in evidence to prove the truth of the matter asserted.' ER 801(c). In a similar situation, a court allowed testimony about an outside caller who called the defendant's telephone and made statements indicative of a desire to buy controlled substances. The caller's statements were admissible to show the caller's implicit belief that the defendant had something the caller wanted. State v. Collins, 76 Wn. App. 496, 499, 886 P.2d 243 (1995). The appellate court ruled that an out-of-court statement indicative of a desire to buy controlled substances was not hearsay if it was used to show the caller's belief that the caller could buy controlled substances from the defendant, rather than to show that the caller wanted to buy controlled substances. The court explained at length:
`Verbal conduct which is assertive but offered as a basis for inferring something other than the matter asserted, is excluded from the definition of hearsay.' `The key to the definition is that nothing is an assertion unless intended to be one.' A person does not normally intend to assert an implied belief. Thus, the statements of the callers were not hearsay in the manner they were used at trial, and the court did not err in admitting them.
Collins, 76 Wn. App. at 499 (internal citations omitted).
As Collins demonstrates, the statements made by the caller to Singh were not hearsay and their admission did not violate the defendant's right of confrontation. The statements were admitted not to show the truth of the matter asserted that the caller really did have a backpack and was ready to go through with some kind of transaction but to show the caller's belief that Singh was a drug dealer.
Next, we analyze Singh's argument that his Miranda rights were violated when the court allowed testimony about his alleged silence after the reading of his Miranda rights. A claim of manifest constitutional error is reviewed de novo. State v. Silva, 119 Wn. App. 422, 428, 81 P.3d 889 (2003). Once the suspect is arrested and Miranda rights are read, the State violates a defendant's Fifth and Fourteenth Amendment rights by introducing evidence of his exercise of Miranda rights as substantive evidence of guilt. State v. Curtis, 110 Wn. App. 6, 37 P.3d 1274 (2002). However, in two of the four instances cited by Singh, it was Singh's own counsel and not the State who introduced evidence of Singh's alleged post-Miranda silence. Singh's counsel made the choice to examine Rybka about Singh's statements to him at the Border Patrol station. In both instances, Rybka responded to the questions of Singh's counsel by telling the court that Singh made no statements. Singh cannot reverse position and argue that Rybka's testimony violated his right to silence.
In the two other instances, it was the State who introduced evidence of Singh's alleged post-Miranda silence through its cross-examination and recross-examination of Singh. However, the Fifth Amendment privilege may not be asserted to prevent the State from using the defendant's statements to impeach his credibility after he testifies at trial. State v. Holland, 98 Wn.2d 507, 519, 656 P.2d 1056 (1983) (citing Harris v. New York, 401 U.S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971)). This is what the State did. Singh had testified under direct examination by his counsel that he asserted his innocence upon questioning by Rybka. The State introduced contradictory evidence of Singh's post-Miranda silence to impeach his credibility. The use of this evidence did not violate Singh's Fifth and Fourteenth Amendment rights.
Last, we examine Singh's claim that the information failed to state all the required elements of the crime of conspiracy to possess a controlled substance with intent to deliver. When the sufficiency of a charging document is challenged for the first time after the verdict or on appeal, the document will be construed liberally in favor of validity. State v. Kjorsvik, 117 Wn.2d 93, 97, 102, 812 P.2d 86 (1991). If the necessary elements of a charge are not found or fairly implied, prejudice can be fairly implied. City of Auburn v. Brooke, 119 Wn.2d 623, 636, 836 P.2d 212 (1992). Convictions based on defective charging documents must be reversed and the charges dismissed without prejudice. Brooke, 119 Wn.2d at 638.
Singh argues that the information and the jury instruction based thereon for the charge of conspiracy to possess with intent to deliver were defective. Singh asserts that it allowed for conviction without proof of an agreement between himself, Karamjit Singh, and a third person. The State concedes this issue and requests that we remand rather than dismiss.
We accept the State's concession without addressing the merits of Singh's arguments. Singh bases his challenge to the information on cases analyzing the crime of conspiracy to deliver. In those cases, courts reasoned that because the crime of delivery of a controlled substance requires two people, the crime of conspiracy to deliver requires the involvement of a third person. State v. McCarty, 140 Wn.2d 420, 426, 998 P.2d 296 (2000); State v. Miller, 131 Wn.2d 78, 91, 929 P.2d 372 (1997); State v. Valdobinos, 122 Wn.2d 270, 280, 858 P.2d 199 (1993). However, the crime of conspiracy to deliver a controlled substance may be different than the crime of conspiracy to unlawfully possess a controlled substance with intent to deliver. Without further briefing, we cannot determine whether the crime of conspiracy to possess with intent to deliver necessarily requires the participation of a third person. Nevertheless, the State has conceded on this issue. For purposes of this appeal only, we will accept the concession. Finally, we rule that the remedy is dismissal without prejudice, not vacation and remand.
In conclusion, we affirm the conviction of possession with intent to delivery. The initial search of the Durango was valid as an extended border search and as a functional equivalent to a border search. The search of the hockey bags was justified by probable cause. Therefore, the trial court did not err in allowing the marijuana into evidence. The questioning of Singh about ownership of the cellular phone was not a custodial interrogation and did not require a Miranda warning. The statements by the caller were admitted not as hearsay, but as evidence of the caller's implied belief. The court, therefore, did not err in admitting testimony about the caller's statements. Evidence of Singh's alleged exercise of his Miranda right to silence did not infringe his Miranda rights, as the evidence was elicited by Singh's counsel or to impeach Singh's credibility. Because the State concedes on Singh's argument on the amended information and jury instruction for the crime of conspiracy to possess with intent to deliver, we reverse the conviction of Singh for this crime and dismiss without prejudice.
ELLINGTON and BAKER, JJ., Concur.