Opinion
No. 52476-3-I
Filed: November 15, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Whatcom County. Docket No: 02-1-01401-4. Judgment or order under review. Date filed: 06/05/2003. Judge signing: Hon. Michael F Moynihan.
Counsel for Appellant(s), Karl Joseph Jr Frost (Appearing Pro Se), 410 E. Denny Way, #259, Seattle, WA 98122.
Andrew Louis Subin, Attorney at Law, 115 W Magnolia St Ste 206, Bellingham, WA 98225-4300.
Counsel for Respondent(s), Rosemary Hawkins Kaholokula, Whatcom Cty Pros Atty Office, 311 Grand Ave Ste 201, Bellingham, WA 98225-4038.
Melinda Beth Miller, Attorney at Law, PO Box 5842, Bellingham, WA 98227.
Kimberly Anne Thulin, Whatcom Cty Pros Atty's Office, 311 Grand Ave Ste 201, Bellingham, WA 98225-4038.
Karl Frost appeals his conviction for possession of marijuana with intent to deliver, in violation of RCW 69.50.401(a)(1)(iii). He argues that the trial court should have suppressed the evidence of marijuana possession. Frost claims that even if he did consent to the search, his consent was the direct result of an illegal detention. He also claims that his consent was not freely and voluntarily given. We affirm.
FACTS
On October 5, 2002, National Park Service Ranger Brett Timm (Timm) was patrolling Ross Lake, in the North Cascade National Park, as a part of a missing person investigation. At about 9:00 a.m., Timm observed Karl Frost kayaking on Ross Lake near Hozomeen Ranger Station, approximately three-quarters of a mile south of the Canadian Border. Timm spotted Frost again at about 11:30 a.m., about three miles south of where he had spotted him earlier. Timm testified that Frost appeared to be a beginning kayaker intent on paddling south.
Timm returned to the Hozomeen Ranger Station where he checked on Frost's self-issued permit. The permit indicated that Frost planned to stay at Lightning Creek campground between October 6th and 9th. No site was checked off for October 5th, the day on which Timm observed Frost. Timm testified that he conferred with another ranger about what he had observed and then decided to find Frost to see what he would do next.
Timm saw Frost for the third time at about 4:30 p.m., approximately five miles south of Lightning Creek campground. A half hour later, and two miles farther south, Frost stopped and got his boat out of the water onto a steep and rocky shore with no official campground, about 17 miles south of the border. Timm testified that in his opinion Frost had chosen a poor place to pull out. By this time it was getting dark. Timm, who was in uniform and armed, drove the Park Service Boat over to the rocky shore. He asked Frost for identification and a backcountry camping permit. Frost had no identification but did provide his permit. He explained that he had left his identification in his car, which was parked at the Hozomeen Ranger Station. Timm asked Frost why he was seven miles past the campground he listed on the permit, to which Frost responded he just wanted to look around. Timm then told Frost that he was concerned that Frost might be smuggling contraband into the United States and asked to see what was inside the kayak. Timm did not tell Frost he had the right to refuse to consent to Timm's request to see what was inside the kayak. Frost agreed to the search and removed the camping gear from the back cargo hatch of the kayak. After he had finished Timm told Frost `Okay. You can go ahead and do the front hatch, too.' Frost removed five dry bags from the front cargo hatch. Timm asked Frost `What's in the bags?' Timm then asked Frost to remove the items inside of the bags. Frost did as asked and showed Timm the contents of the bags, many of which contained marijuana. Timm took Frost into custody and searched him for weapons. After allowing Frost to change to dry clothes, Timm read Frost his Miranda rights and placed him under arrest.
ANALYSIS I. Standard of Review
When reviewing the denial of a suppression motion, we determine whether substantial evidence supports the findings of fact to which error has been assigned and then determine whether the findings support the conclusions of law. State v. Neeley, 113 Wn. App. 100, 104-06, 52 P.3d 539 (2002); State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). Whether a seizure occurred is a mixed question of law and fact. We give the trial court's factual findings great deference but ultimately must decide as a question of law whether those facts constitute a seizure. Our review of this question is de novo. State v. Thorn, 129 Wn.2d 347, 351, 917 P.2d 108 (1996).
II. Frost's Illegal Detention Claim
Frost claims that Timm seized him by demanding Frost's identification and backcountry permit. A person is seized under Article I, sec. 7 of the Washington State Constitution only when, by means of physical force or a show of authority, his freedom of movement is restrained, when in light of all of the circumstances a reasonable person would not believe he or she is free to leave or to otherwise decline an officer's request and end the encounter. State v. Young, 135 Wn.2d 498, 510-11, 957 P.2d 681 (1998). This is a purely objective standard that looks to the actions of the law enforcement officer. Young, 135 Wn.2d at 509-10.
The purpose of Article 1, sec. 7 is not to eliminate all contact between the police and the citizenry, but to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals. See e.g. United States v. Martinez-Fuerte, 428 U.S. 543, 554, 96 S. Ct. 3074 (1976); State v. O'Neill, 148 Wn.2d 564, 575, 62 P.3d 489 (2003); Kelleher v. Minshull, 11 Wn.2d 380, 401-02, 119 P.2d 302 (1941); United States v. Mendenhall, 446 U.S. 544, 553, 100 S. Ct. 1870 (1980). In Mendenhall the Court stated:
As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person's liberty or privacy as would under the Constitution require some particularized and objective justification.
. . .
[C]haracterizing every street encounter between a citizen and the police as a "seizure," while not enhancing any interest secured by the Fourth Amendment, would impose wholly unrealistic restrictions upon a wide variety of legitimate law enforcement practices. The Court has on other occasions referred to the acknowledged need for police questioning as a tool in the effective enforcement of the criminal laws. "Without such investigation, those who were innocent might be falsely accused, those who were guilty might wholly escape prosecution, and many crimes would go unsolved. In short, the security of all would be diminished.
. . .
Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.
Mendenhall, 446 U.S. at 554. (citations omitted) The United States Supreme Court's comments on this issue have been favorably noted by the Washington State Supreme Court. See O'Neill, 148 Wn.2d at 575.
Frost identifies five reasons why no reasonable person would have felt free to end his interaction with Timm:
1. Frost was approached by an agent of the Federal government wearing a National Park Service uniform, and carrying a firearm.
2. The officer explained to Frost that because Frost had just crossed the international border and appeared to be involved in smuggling, the officer was suspicious.
3. The officer did not tell Frost he could refuse consent to search.
4. The officer did not tell Frost he could choose to leave. On the contrary, the officer testified that he was not going to allow Frost to leave the scene.
5. Because the officer was in a power boat and Frost was in a human-powered kayak, he did not have any ability to leave the scene against the officer's instructions.
The mere fact that an armed, uniformed officer stops to question someone is not a seizure. Timm's explanations for his suspicions and interests in questioning Frost were not a show of force or authority amounting to restraint. The fact that Timm did not tell Frost he could refuse to consent to the search does not go to the threshold question of whether he was free to leave. Timm's decision not to tell Frost that he could leave fails to illustrate any affirmative restraint. Timm's uncommunicated subjective intent is irrelevant. Additionally, whether Frost believed he could outrun Timm is not relevant to whether he was free to attempt to leave; if he was free to leave there is no reason he would have been followed. None of the reasons asserted by Frost alone support an objective belief by a reasonable person that he was restrained. Taken together these facts are within the variety of legitimate law enforcement practices contemplated in Mendenhall. None of these reasons, standing alone or together, objectively amount to a `seizure' for the purposes of Article 1, sec. 7 of the Washington State Constitution.
III. Knowing and Voluntary Consent
Frost argues that the state failed to prove that he knowingly and voluntarily consented to a search of his kayak. `A search and seizure without a warrant is per se unreasonable unless it falls within one of the few specifically established and well-delineated exceptions to this rule.' State v. Werth, 18 Wn. App. 530, 534, 571 P.2d 941 (1977) (citing Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022 (1971)). `One such exception, which is also exempt from the probable cause requirement, occurs when a person consents to a search.' Werth, 18 Wn. App. at 534 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041 (1973)). But, consent is not valid unless it is freely and voluntarily given. O'Neill, 148 Wn.2d at 588.
In determining whether consent was freely and voluntarily given we look to the totality of the circumstances, including `(1) whether Miranda warnings had been given prior to obtaining consent; (2) the degree of education and intelligence of the consenting person; and (3) whether the consenting person had been advised of his right not to consent.' State v. Shoemaker, 85 Wn.2d 207, 212, 533 P.2d 123 (1975). `Additional factors that may affect the voluntariness of consent include express or implied claims of authority to search.' State v. Flowers, 57 Wn. App. 636, 645, 789 P.2d 333 (1990). `No one factor is dispositive.' State v. Bustamante-Davila, 138 Wn.2d 964, 982, 983 P.2d 590 (1999) (citing State v. Smith, 115 Wn.2d 775, 789, 801 P.2d 975 (1990)).
In Bustamante-Davila, a foreign national argued that his firearm was illegally seized because he was not advised of his right to refuse to consent to entry into his home nor given Miranda warnings. Bustamante-Davila, 138 Wn.2d at 966-67, 974-75. The Washington State Supreme Court upheld the trial court's ruling that `where testimony does not otherwise suggest coercion, the mere fact that the police did not give Miranda warnings or advise the resident of his right to refuse consent will not negate the consent.' Id. at 974-75, 983-84. In Bustamante-Davila, a United States Immigration and Naturalization Service (INS) agent, accompanied by at least four local police officers, knocked on the defendant's door. Id. at 968. The defendant looked out of his window and saw both the INS agent and the police officers. Id. at 968. The INS agent asked permission to enter the defendant's home. Id. at 968-69. The defendant responded by stepping back and stating `Yeah. You can come.' Id. at 969. The INS agent and the police officer at the front of the house entered. Id. at 969. After hearing the others inside, a police officer stationed at the rear of the house walked around to the front and also went inside. Id. at 969. Once inside they noticed a rifle against the wall of the defendant's living room and asked him whether it was his. Id. at 969-70. The defendant responded that it was. Id. at 969-70. The police officers arrested the defendant because he was a felon and not permitted to keep a firearm. Id. at 969-70. The defendant in Bustamante-Davila was neither advised of his right to refuse entry nor read his Miranda warnings and the Washington State Supreme Court held that neither of those facts vitiated his consent. Id. at 974-75, 983-84. The defendant was of at least average intelligence and given the facts of the case the Washington State Supreme Court determined that he had freely and voluntarily consented to the entry. Id. at 974-75, 981, 983-84.
Frost argues that the totality of the circumstances test applied to his case indicates that he did not freely and voluntarily consent to the search. `[W]here testimony does not otherwise suggest coercion, the mere fact that the police did not give Miranda warnings or advise the resident of his right to refuse consent will not negate the consent.' Bustamante-Davila, 138 Wn.2d at 974-75, 983-84. Here, although Frost was neither given Miranda warnings nor informed of his right to refuse or limit consent, he consented to the search. Additionally, it is, evident from Timm's testimony and undisputed by Frost that Frost is a person of at least average or higher intelligence.
The trial court entered the following undisputed finding of fact: `Timm asked for consent to search Frost's belongings. Frost said `yeah'.'
Implied or express claims of authority to search may affect the voluntariness of consent. Flowers, 57 Wn. App. at 645. Frost does not claim that Timm expressly stated that he had authority to search. Frost contends that Timm's conduct amounted to an implied claim of authority to search.
Timm was in uniform and armed but he was alone. This by itself is not a show of force or coercion, nor does it imply authority to search, given that five armed uniformed officers who appeared at Bustamante-Davila's front door did not constitute a show of force or coercion nor an implied authority to search. Timm did not draw his weapon or do anything else coercive.
Timm did not order Frost to let him search the kayak. To the contrary, Timm requested that Frost show him what was in the kayak. Frost agreed and then he himself emptied the contents of the back hatch, and later the front hatch. We decline to read Timm's statement to Frost that `You can go ahead and do the front hatch, too' as an order. The word `can' is typically used to indicate that which is permitted, not required. The record does not establish that Timm's tone or other actions could indicate that his statement was an order.
Frost next contends that Timm told Frost that he would not be permitted to leave unless he allowed him to search the kayak. Timm's testimony does not support Frost's contention. Frost's testimony, on the other hand, suggests that Timm told him that he could not leave until searched. The trial court, while finding that Timm and Frost had essentially the same testimony, did not find that Timm ordered Frost to show the contents of the kayak. Any conflict in testimony is a credibility question for the trial court. `Evaluating the credibility of witnesses is a function of the trial court and the findings of the trial court are to be given great weight on review.' State v. Rodriguez, 20 Wn. App. 876, 878, 582 P.2d 904 (1978). Timm's testimony does indicate that had Frost decided he wanted to leave that Timm would not have let him do so. Timm did not communicate this intent to Frost at the lake. Had he communicated that intent to Frost or acted on it we would have different facts before us.
Frost has not made a convincing connection between Timm's subjective intent on this point and any communication of an implied or express authority to search. The facts in this record simply do not demonstrate that Timm's words or conduct implied or expressed a claim of authority to search. He identified himself honestly and then asked permission to see what was in the kayak. Frost consented to the search and eventually showed Timm that he had marijuana.
Based on this record and how Washington Courts have applied the totality of the circumstances test since its first articulation, the evidence simply does not support Frost's contentions. The state has met its burden of proving consent was freely and voluntarily made. Frost was not seized illegally. His consent to Timm's request to see the contents of the kayak was voluntary.
Affirmed.
BECKER, J., and COLEMAN, J., Concur.