Opinion
No. 25179-9-III.
September 11, 2007.
Appeal from a judgment of the Superior Court for Spokane County, No. 05-1-03553-7, Robert D. Austin, J., entered April 11 and May 8, 2006.
Reversed by unpublished opinion per Kulik, J., concurred in by Schultheis, A.C.J., and Brown, J.
A jury convicted Barry Losh of the manufacture of marijuana. On appeal, he contends the trial court erred by failing to suppress evidence seized from his home and statements he made to law enforcement. Because Mr. Losh's statements were made in response to custodial interrogation, without the required Miranda warnings, the statements should have been suppressed. We reverse.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
FACTS
The night of September 30, 2005, sheriff's deputies arrived at Mr. Losh's residence in response to a 911 call from Marcus Norwood, who was Mr. Losh's cousin and housemate. Mr. Norwood called 911 to report that he was the victim of domestic violence and that Mr. Losh was growing marijuana in the house.
The deputies contacted Mr. Losh and Mr. Norwood outside the house. Mr. Losh testified that he was prevented from going inside his house because a deputy told him to "come here." Report of Proceedings (RP) at 29. At that point, Mr. Losh did not feel free to leave.
Deputy Michael McNees noticed that Mr. Norwood had a bloody lip and that Mr. Losh had no injuries. Deputy McNees testified that Mr. Losh was not free to leave given the mandatory arrest requirement for domestic violence incidents. Under procedures followed by the sheriff's department, deputies were required to arrest the primary aggressor in a domestic violence altercation if the assault had occurred within four hours. Even though Deputy McNees was aware of this policy, he did not inform Mr. Losh that he was not free to leave.
Deputy McNees questioned Mr. Losh about Mr. Norwood's allegations. The deputy asked potentially incriminating questions about the alleged assault and the alleged marijuana grow operation. Mr. Losh did not receive any Miranda warnings before he was questioned.
Mr. Norwood informed the deputies that the marijuana grow operation was located in a locked room near Mr. Losh's bedroom. Deputy McNees asked Mr. Losh about the marijuana grow operation. Mr. Losh initially denied having a marijuana grow operation in the basement. Mr. Losh also stated that he did not want to go to jail for growing marijuana. Deputy McNees told Mr. Losh that his intent was to remove the evidence and refer charges to the detectives. Deputy McNees asked Mr. Losh for permission to search the basement. Mr. Losh again expressed concern about going to jail. Mr. Losh refused consent to search "2 or more times." Clerk's Papers (CP) at 19.
Deputy McNees then arrested Mr. Losh for fourth degree assault-domestic violence, and placed him in the back of a patrol car. Deputy McNees again asked Mr. Losh for consent to search the locked room. When Mr. Losh indicated that he was willing to consent to the search, he was taken out of the patrol car and his handcuffs were removed.
Deputy McNees and Mr. Losh went into the house. Deputy McNees asked Mr. Losh if he could read. Mr. Losh indicated that he could. Deputy McNees then gave Mr. Losh a "Search Consent Waiver" form. RP at 9. Mr. Losh looked over the form and then signed it. The waiver form read, in part, as follows:
I hereby give permission voluntarily without threats, promises, of any kind, from a law enforcement officer to search the premises, vehicles, and/or other property listed below. I understand I have a right to refuse to the search. I understand if I consent to the search, I may revoke that search at any time. I understand I may limit the scope of the consent to certain areas of the premises, vehicle, or property being searched, and I understand that evidence found during the search may be used in a court against me, or any other persons.
RP at 9-10.
Deputy McNees asked Mr. Losh for the key to the locked room. Mr. Losh handed the key to Deputy McNees. At some point, Mr. Losh stated that he had under 10 marijuana plants. Deputy McNees searched the basement and discovered 7 marijuana plants.
At the conclusion of the CrR 3.5 and CrR 3.6 hearing, the trial court concluded that Mr. Losh was not in custody when questioned about the domestic violence incident and the marijuana grow operation. The court also concluded that the deputy's questions were investigatory and that Mr. Losh demonstrated that his consent to the search was voluntary by signing the consent waiver form and by giving the deputy the key to the locked room. The court refused to suppress the evidence of a marijuana grow operation and Mr. Losh's statements.
The jury found Mr. Losh guilty of manufacture of marijuana. He appeals.
ANALYSIS
Consent to Search
Mr. Losh does not challenge the court's findings. When findings are unchallenged, they are verities on appeal. State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994).
Under article 1, section 7, of the Washington Constitution, warrantless searches are per se unreasonable. State v. Khounvichai, 149 Wn.2d 557, 562, 69 P.3d 862 (2003). There are exceptions to the warrant requirement, and the State bears the burden of showing that the warrantless search falls within one of the exceptions. Id. Consent to search is one exception to the warrant requirement. State v. Holmes, 108 Wn. App. 511, 516, 31 P.3d 716 (2001). The State must show that the consent was freely and voluntarily given. State v. O'Neill, 148 Wn.2d 564, 588, 62 P.3d 489 (2003).
Whether consent was freely and voluntarily given is a question of fact that must be determined from the totality of the circumstances. State v. Bustamante-Davila, 138 Wn.2d 964, 981, 983 P.2d 590 (1999). This court's review is de novo; but the trial court's findings are given great weight. State v. Rodriguez, 20 Wn. App. 876, 878, 582 P.2d 904 (1978).
Factors which may be considered when determining whether consent is voluntary are: whether Miranda warnings were given, the level of education and intelligence of the individual, and whether he or she has been advised of the right to consent. O'Neill, 148 Wn.2d at 588. However, courts apply the totality of circumstances "rather than merely applying a multifactor analysis." Id. at 589. In O'Neill, the court concluded that the consent to the search was not valid due to the officers' repeated requests for consent. Id. at 591. Voluntary consent can be given in a custodial situation; but the restraint of a person is a factor to consider. Id. at 589.
Here, the deputies went to Mr. Losh's residence in response to a 911 call. The deputies contacted Mr. Losh outside his residence. Deputy McNees asked Mr. Losh for consent to enter a locked room in his residence. Mr. Losh refused consent "2 or more times." CP at 19. The deputy then arrested Mr. Losh and placed him in a patrol car. Deputy McNees again asked Mr. Losh for consent to enter the locked room. Mr. Losh indicated that he was willing to allow the search. Mr. Losh was taken out of the car and his handcuffs were removed. Once Mr. Losh and Deputy McNees were in the house, Deputy McNees asked Mr. Losh if he could read. Mr. Losh indicated that he could read. Deputy McNees handed Mr. Losh a search consent waiver form which he looked over and signed. The deputy asked for the key to the room and Mr. Losh gave Deputy McNees the key. Mr. Losh believed that because he signed the waiver form he would not be going to jail.
Mr. Losh maintains that he was coerced into consenting to the search. He points out that there were five deputies at his residence in the middle of the night. Mr. Losh contends he was in a vulnerable subjective state because he told Deputy McNees over and over again that he did not want to go to jail. Mr. Losh claims that when he did not grant consent, he was arrested, handcuffed, and placed in a patrol car. But when he relented and consented to the search, the handcuffs were removed and he was led back into his house.
The unchallenged findings do not suggest that Mr. Losh was arrested, handcuffed, and placed in a patrol car because he would not consent to the search. The deputies arrived on the scene and were investigating two offenses. When the deputies concluded their investigation of the domestic violence incident, they arrested Mr. Losh and placed him in a patrol car. The findings do not support Mr. Losh's argument that the deputies' conduct was coercive. Mr. Norwood was injured and Mr. Losh was not injured. Under departmental policy, the deputies were required to arrest the aggressor.
Mr. Losh next asserts he was coerced to consent to the search because of the deputy's repeated requests to gain his consent. The findings state that Mr. Losh refused consent "2 or more times." While repeated requests for consent can be a factor to consider when evaluating voluntariness, the record does not indicate that this factor was dispositive here. Moreover, as the court concluded, the fact that Mr. Losh signed the waiver form and then handed the key to Deputy McNees indicates that Mr. Losh's consent was voluntary.
Mr. Losh also argues that his consent was not voluntary because the deputies failed to give the warnings required under State v. Ferrier, 136 Wn.2d 103, 960 P.2d 927 (1998). Under article I, section 7, Washington recognizes a person's right to privacy with no express limitations. Id. at 111. Under Ferrier:
[W]hen police officers conduct a knock and talk for the purpose of obtaining consent to search a home, and thereby avoid the necessity of obtaining a warrant, they must, prior to entering the home, inform the person from whom consent is sought that he or she may lawfully refuse to consent to the search and that they can revoke, at any time, the consent that they give, and can limit the scope of the consent to certain areas of the home.
Id. at 118.
Ferrier held that a knock and talk is inherently coercive. Id. at 114-15. But this is not a knock and talk case. Under the knock and talk procedure, law enforcement officers knock on the door of a suspect's home, obtain permission to enter to discuss a complaint, and later ask for permission to search the premises. Id. at 107. Ferrier warnings are not required because the deputies came to the house in response to a 911 call, the initial contact took place outside the residence, and the deputies did not gain entrance and then ask permission to search.
In the absence of a knock and talk, this court must apply the totality of the circumstances test. State v. Thang, 145 Wn.2d 630, 637, 41 P.3d 1159 (2002). Under the totality of the circumstances here, the search of the residence was valid. There is no indication of coercion and the waiver form informed Mr. Losh that he had the right to refuse the search or revoke the search. The facts also indicate that Mr. Losh understood that consent could be refused because he refused consent several times during his encounter with Deputy McNees.
Mr. Losh's consent to search was voluntary.
Custodial Interrogation
Mr. Losh asserts that the statements he made to deputies should have been suppressed because he was in custody and had not been given his Miranda warnings. Mr. Losh was not given Miranda warnings at any time during the night. A suspect in a criminal case must be advised of his Fifth Amendment rights before an agent of the state may conduct a custodial interrogation. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). A suspect's pre- Miranda statements are presumed involuntary due to the coercive nature of custodial interrogations. Oregon v. Elstad, 470 U.S. 298, 305, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985). Miranda warnings are not required for an investigative encounter between a law enforcement officer and a suspect that is based on a reasonable suspicion. State v. Huynh, 49 Wn. App. 192, 201, 742 P.2d 160 (1987). In contrast to a custodial encounter, an investigative encounter is not inherently coercive, and Miranda warnings are not required. See State v. Cunningham, 116 Wn. App. 219, 228, 65 P.3d 325 (2003).
"Interrogation" is defined as "any words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response from the suspect." Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980). Certain reasonable inquiries, which are not designed to elicit incriminating statements, may be made before Miranda warnings are given. State v. Lister, 2 Wn. App. 737, 741, 469 P.2d 597 (1970).
A court examines all of the surrounding circumstances when evaluating whether an interaction constitutes an interrogation. State v. Bradley, 105 Wn.2d 898, 903-04, 719 P.2d 546 (1986). This court conducts a de novo review of the trial court's determination of custodial interrogation. State v. Solomon, 114 Wn. App. 781, 788, 60 P.3d 1215 (2002). In making this determination, this court must ask whether a reasonable person in the same situation would have understood that he or she could not terminate the interrogation and leave. See Thompson v. Keohane, 516 U.S. 99, 112-13, 116 S. Ct. 457, 133 L. Ed. 2d 383 (1995).
Mr. Losh contends that his statements were made while he was in custody. We must ask whether a reasonable person in Mr. Losh's position would understand that he or she was free to terminate the interrogation and leave.
Here, the deputies arrived at the residence in response to a 911 call for domestic violence. The deputies questioned Mr. Losh about the domestic violence and the alleged marijuana grow operation. Mr. Losh refused to consent to a search, and he was handcuffed and placed in a patrol car. When Mr. Losh consented to the search, he was taken out of the patrol car and his handcuffs were removed. Mr. Losh made incriminating statements while he was in the house with Deputy McNees. The questions asked by Deputy McNees were not open ended and were designed to elicit incriminating responses. A reasonable person would not understand that he was free to terminate the interrogation and leave. Based on this record, Mr. Losh was in custody once he was placed in the patrol car. Subsequent interrogations were custodial.
Mr. Losh was in custody from the time he was first handcuffed and placed in the patrol car. Even though Mr. Losh was released from the patrol car and the handcuffs, he remained in custody while he walked through his house with Deputy McNees. Mr. Losh's statements should have been suppressed.
Harmless Error Analysis
The admission of Mr. Losh's statements constituted constitutional error. Constitutional errors are prejudicial unless the State establishes beyond a reasonable doubt that any reasonable juror would have reached the same result absent the error. State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985). When determining whether the constitutional error is harmless, this court applies the untainted evidence test. Id. at 426. We examine whether the untainted evidence is so overwhelming that it necessarily leads to a finding of guilty. Id.
The remaining evidence is not so overwhelming that it necessarily leads to a finding of guilty. Mr. Losh led the deputies to a room containing marijuana plants. However, Mr. Losh also presented evidence that he shared the house with Mr. Norwood, who was a heavy marijuana user. Evidence was also presented that on three or four occasions Mr. Norwood had asked Michael Anderson if he knew anyone who wanted to buy marijuana. In addition, no fingerprints connected Mr. Losh to the marijuana grow operation, and Mr. Norwood had access to the key to the basement.
Here, the untainted evidence does not necessarily lead to a finding of guilty. The admission of the statements was prejudicial. We reverse.
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.
SCHULTHEIS, A.C.J., BROWN, concur.