From Casetext: Smarter Legal Research

State v. Garcia-Avalos

The Court of Appeals of Washington, Division One
Nov 15, 2004
124 Wn. App. 1014 (Wash. Ct. App. 2004)

Opinion

No. 52929-3-I

Filed: November 15, 2004 UNPUBLISHED OPINION

Appeal from Superior Court of Skagit County. Docket No: 03-1-00344-1. Judgment or order under review. Date filed: 07/11/2003. Judge signing: Hon. Michael E Rickert.

Counsel for Appellant(s), Erik Pedersen, Attorney at Law, Skagit, Co Prosc Atty Ofc, 605 S 3rd St, Mount Vernon, WA 98273-3867.

Counsel for Respondent/Cross-Appellant, Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.

David Bruce Koch, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.


When stopping a vehicle for a minor traffic infraction, a police officer may detain the driver `for a reasonable period of time necessary to identify the person, check for outstanding warrants, check the status of the person's license, insurance identification card, and the vehicle's registration, and complete and issue a notice of traffic infraction.' But even if the initial detention for a traffic violation is valid, the officer will exceed the legitimate scope of that detention if he or she investigates other potential offenses with no articulable suspicion of any criminal activity. Here, the reasons provided by the trooper did not justify his request to search Garcia-Avalos's vehicle. Therefore, Garcia-Avalos's extended detention for the purpose of obtaining his consent to search the car was illegal. Because there were no intervening circumstances and Garcia-Avalos had not been read his Miranda rights, his consent was vitiated by the illegal detention. Thus, the superior court correctly suppressed all items discovered and statements made pursuant to the search of the vehicle.

State v. Armenta, 134 Wn.2d 1, 15-16, 948 P.2d 1280 (1997).

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Armenta, 134 Wn.2d 1.

FACTS

On April 11, 2003, at approximately 10:38 p.m., State Trooper Chad Bosman was on `proactive traffic [patrol]' on southbound Interstate 5 near the town of Alger, Skagit County, Washington. He observed a vehicle traveling 55 mph. in a 70-mph. zone and weaving within its lane of traffic and began to follow the vehicle. Trooper Bosman followed the vehicle while it left Interstate 5 at the exit that serves Skagit Valley Casino. As the vehicle turned left onto the street that leads to the Casino, the trooper observed the left tire of the vehicle cross the solid yellow centerline of the street.

At 10:40 p.m., Trooper Bosman operated his emergency lights and pulled the vehicle over. He then approached the vehicle on foot and made contact with the driver. He observed a young Hispanic man who spoke broken English. Trooper Bosman spoke no Spanish. The driver appeared to Trooper Bosman to be nervous. Upon being asked for identification, the driver pulled out his wallet and gave Trooper Bosman a Washington State Identification Card that identified him as Gabriel Garcia-Avalos. As he did this, Trooper Bosman observed a large quantity of currency in his wallet, denominations unknown. Garcia-Avalos did not produce a driver's license.

Trooper Bosman also observed that Garcia-Avalos had a cellular telephone with him. Additionally he observed that the Garcia-Avalos had a long pinky fingernail which from his training, but not experience, was associated with the use of controlled substances. Garcia-Avalos told Trooper Bosman that the vehicle did not belong to him but was his girlfriend's and that he was going to the Casino.

Trooper Bosman then went back to his patrol car and Trooper Laughlin arrived on the scene. He filled Trooper Laughlin in on the observations he had made. At this point, Trooper Bosman had obtained information from Garcia-Avalos sufficient to charge him with a lane travel infraction and no valid operator's license with identification and was aware that Garcia-Avalos could not drive the vehicle.

Without issuing infractions or informing Garcia-Avalos that he was free to leave, Trooper Bosman at 10:45 p.m. sought and received written consent from Garcia-Avalos to search the vehicle, based solely upon his suspicion that Garcia-Avalos possessed controlled substances. Trooper Bosman did not read Garcia-Avalos his Miranda rights. Garcia-Avalos appeared to read and understand the consent form and signed it in Trooper Bosman's presence. He then provided the troopers with the key to the trunk of the vehicle. Troopers searched the vehicle and at about 10:48 p.m. discovered in a box in the glove compartment multiple small bundles of suspected heroin and cocaine. Garcia-Avalos was placed under arrest for possession of a controlled substance.

Garcia-Avalos filed 3.5 and 3.6 motions to suppress all items discovered and statements made by him subsequent to the search of the vehicle. The superior court granted the motion and found among other things that:

2. The defendant was seized when Trooper Bosman operated his emergency lights and stopped the vehicle the defendant was driving. . . .

3. Bosman's stop of the vehicle defendant was driving was not pretextual. . . .

4. After Bosman had completed his investigation of the infractions, and time to issue them, he impermissibly extended the scope of the seizure and engaged in a search of the vehicle without a reasonable articulable suspicion of criminal activity . . .

5. Had Bosman had a reasonable basis to expand the scope of the stop, consent was voluntarily given and otherwise properly obtained. . . .

6. Defendant's subsequent consent failed to purge the taint of Defendant's illegal detention because, although there was insignificant temporal lapse between the unreasonable detention and consent, there were no intervening circumstances between the illegal detention and the consent to search and Miranda warnings were not given. But for the illegal detention, the consent would not have been obtained.

The State appealed and Garcia-Avalos filed a motion to cross-appeal on the issue of whether the consent was otherwise voluntary.

`[E]vidence obtained by the purported consent should be held admissible only if it is determined that the consent was both voluntary and not an exploitation of the prior illegality.' The superior court found that Garcia-Avalos's illegal detention vitiated his consent to search the car and suppressed all evidence and statements made as a result of the search.

3 Wayne R. LaFave, Search and Seizure sec. 8.2(d), at 656 (3d. ed. 1996). See also State v. Jensen, 44 Wn. App. 485, 488-89, 723 P.2d 443 (1986) (citing Taylor v. Alabama, 457 U.S. 687, 102 S. Ct. 2664, 73 L. Ed. 2d 314 (1982); Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248, 60 L. Ed. 2d 824 (1979). La Fave points out that the courts often take two approaches in addressing the validity of consent subsequent to a prior illegal police action. Some courts engage in the `totality of the circumstances' voluntariness test while others analyze whether the consent was `the fruit of the poisonous tree.' As LeFave points out, while there is a sufficient overlap of the voluntariness and fruits tests that often a proper result may be reached by using either one independently, it is important to understand that the two tests are not the same and evidence obtained subsequent to a consent only can be admissible if the consent passes both tests. 3 Wayne R. LaFave, Search and Seizure sec. 8.2(d), at 656 (3d. ed. 1996). While it is counterintuitive that a consent to search can be both `voluntary' under the totality of the circumstances and yet not an act `free will' due to the exploitation of a prior illegality under the fruits test, the latter test is important because it polices Washington's strong policy against pretextual seizures. See State v. Ladson, 138 Wn.2d 343, 979 P.2d 833 (1999).

ANALYSIS

In State v. Armenta, the Washington Supreme Court recently upheld a superior court's decision to suppress evidence under similar circumstances. In Armenta, two Hispanic men, Cruz and Armenta, approached an officer on foot and requested assistance with their vehicle. In the course of conversation the officer requested their identification and asked Cruz about a bulge he noticed in one of his pockets. In response, Cruz produced a wad of money totaling $1,000. When the officer asked where Cruz got the money, he said that he had just cashed a paycheck for work he did on a Seattle ranch, but could not name the ranch. Armenta then voluntarily produced three bundles of $1,000 in cash and said that he got it as payment for a car he had just sold. Armenta did not have a bill of sale or receipt from this alleged transaction.

Armenta, 134 Wn.2d 1.

The officer then called in a driver's license check on names Armenta and Cruz had given him and discovered that Armenta's Arizona license had been suspended. The officer called for backup and placed the money in his patrol car. He then asked Armenta if he could search his car and informed him that he did not have to consent. He did not read Armenta his Miranda rights. Armenta said he did not mind and the officer conducted a search of the car and discovered illegal narcotics in the trunk.

The Supreme Court found that Armenta and Cruz had been seized at the moment the money was placed in the patrol car and that the seizure was illegal because, while they might have fit the officer's perception of likely drug dealers, they were not doing anything illegal or inherently suspicious when they were seized. While the Court acknowledged the officer had reason to suspect that Cruz and Armenta were engaged in or about to engage in the criminal activity of driving without a valid license, the officer did not stand to discover anything related to the potential driving offense by detaining Armenta and Cruz or searching the vehicle. Therefore, the officer was required to suspect that Armenta or Cruz was engaged in some other illegal activity other than driving without a valid license to justify asking permission to search the vehicle.

Armenta, 134 Wn.2d at 13.

Armenta, 134 Wn.2d at 15-16.

Armenta, 134 Wn.2d at 15-16.

Here, the trooper stopped Garcia-Avalos for crossing over the center line as he made a left turn. During the course of the traffic stop, the trooper obtained information to cite Garcia-Avalos for a lane violation and for driving without a license. He testified that he intended to issue those citations. However, instead of issuing the citations, the trooper requested Garcia-Avalos's written consent to search the car.

In justifying a particular intrusion a government agent `must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.' As explained in Armenta, `[i]n evaluating investigative stops, [a] court must determine: (1) Was the initial interference with the suspect's freedom of movement justified at its inception? [and] (2) Was it reasonably related in scope to the circumstances which justified the interference in the first place?' Absent some nexus between the trooper's request to search the vehicle and the traffic violations which justified the initial stop, the trooper needed a reasonable and articulable suspicion of criminal activity to justify his request to search the vehicle.

Armenta, 134 Wn.2d at 15. See also Terry, 392 U.S. at 19-20; State v. Williams, 102 Wn.2d 733, 739, 689 P.2d 1065 (1984).

Armenta, 134 Wn.2d at 15-16.

When Trooper Bosman was questioned as to what observations he had made that led him to want to search the vehicle he cited the fact that the car did not belong to Garcia-Avalos `was a large one' for him because `[f]rom training and experience quite often transportation of narcotics are done in a vehicle that's not registered to the person driving.' Trooper Bosman also stated that Garcia-Avalos's pinky fingernail created suspicion as well as the fact that he had what appeared to be a large amount of money in his wallet, a cell phone, a lot of gold jewelry on his person, and appeared to be nervous. Trooper Bosman stated he learned in training that a long pinky fingernail was common with snorting controlled substances such as cocaine.

These circumstances did not reasonably justify the more intrusive detention. As the superior court wrote in its findings of fact, `[i]n the Hispanic community there are non drug-related reasons to have a long `pinky' fingernail, viz., good luck.' And as the trooper admitted, a cellular telephone is `not as good of a give-away as it used to be. Pretty much everybody has a cell phone now.' Moreover, the trooper admitted not knowing the denominations of the currency he had observed in Garcia-Avalos's billfold and admitted that he did not find it strange that someone who was headed to a casino would have a large sum of cash on their person. Finally, most persons stopped by law enforcement officers display some signs of nervousness. The superior court properly concluded that the reasons supplied by the trooper did not constitute an objectively reasonable basis to justify the search.

See State v. Barwick, 66 Wn. App. 706, 710, 833 P.2d 421 (1992).

Having found Garcia-Avalos's detention illegal, we must evaluate whether his consent was vitiated by the illegal detention. The following factors to weigh in considering the validity of a consent given in similar circumstances: (1) the temporal proximity of the illegal detention and subsequent consent, (2) the presence of significant intervening circumstances, (3) the purpose and flagrancy of the official's conduct, and (4) the giving of Miranda warnings.

Armenta, 134 Wn.2d at 17.

Armenta, 134 Wn.2d at 17.

Here, as in Armenta, there were no intervening circumstances. Garcia-Avalos's consent was simultaneous with the illegal detention. Additionally, Garcia-Avalos had not been read his Miranda rights. While there is no evidence that Garcia-Avalos was the subject of police intimidation, this fact alone is not enough to rescue the consent. Because we find that the consent was vitiated by the illegal detention, we need not address whether the consent was otherwise voluntary. The superior court's suppression order is affirmed.

Armenta, 134 Wn.2d at 17.

BECKER, J. and KENNEDY, J., Concur.


Summaries of

State v. Garcia-Avalos

The Court of Appeals of Washington, Division One
Nov 15, 2004
124 Wn. App. 1014 (Wash. Ct. App. 2004)
Case details for

State v. Garcia-Avalos

Case Details

Full title:STATE OF WASHINGTON, Appellant/Cross-Respondent, v. GABRIEL GARCIA-AVALOS…

Court:The Court of Appeals of Washington, Division One

Date published: Nov 15, 2004

Citations

124 Wn. App. 1014 (Wash. Ct. App. 2004)
124 Wash. App. 1014