Opinion
No. 27020-3-III.
September 22, 2009.
Appeal from the Superior Court, Spokane County, No. 07-1-03608-4, Ellen K. Clark, J., entered February 27, 2008.
Affirmed by unpublished opinion per Schultheis, C.J., concurred in by Brown and Kulik, JJ.
Martha Diane Grall was a passenger in a vehicle that was stopped for a traffic infraction. The driver was arrested for driving with a suspended license. The vehicle was searched incident to arrest. Ms. Grall permitted an officer to search her purse. The officer found a green leafy substance in a bag within the purse. When the officer asked Ms. Grall to identify it, she told him that it was marijuana. Ms. Grall was arrested and informed of her rights. More marijuana was found in her purse and she made additional incriminating statements.
On appeal of her conviction for possession of a controlled substance with intent to deliver, Ms. Grall contends the trial court erred by failing to suppress the marijuana evidence for lack of voluntary consent to search her purse. She also contends that the court erred by not suppressing her statements given without Miranda warnings as well as those statements given afterward as they were tainted by the taking of the initial pre- Miranda statements. We conclude that the trial court did not err in determining that the search of Ms. Grall's purse was voluntary. We further conclude that, although the court should have suppressed Ms. Grall's statement concerning the identity of the marijuana, that error is harmless. Finally, we conclude that the later statements were not tainted. We therefore affirm.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
FACTS
Ms. Grall was charged with possession of a controlled substance with intent to deliver. Separate hearings were held to determine the admissibility of the physical evidence and incriminating statements made by Ms. Grall. The following facts were adduced from the hearings.
On May 26, 2007, Airway Heights Police Officer Thomas Gravelle was conducting routine traffic patrol while training Reserve Officer Robert Schmitter. Reserve Officer Schmitter was driving the patrol car. The officers saw a truck make a wide turn, failing to turn into the innermost lane. While Officer Gravelle does not usually make a traffic stop for a wide-turn infraction, he decided to instruct Reserve Officer Schmitter to stop the truck for training purposes.
The officers soon learned that the driver's license was suspended and arrested the driver for driving with a suspended license in the third degree. The driver was searched incident to arrest and placed in the patrol car. Officer Gravelle asked the passenger of the truck, Ms. Grall, to get out so it could be searched. Ms. Grall got out, taking her purse with her.
The testimony differs as to what occurred next. Officer Gravelle testified that as Ms. Grall emerged from the truck, he noticed she was carrying a large purse. He was concerned that the purse might contain a weapon. He testified that he asked Ms. Grall if he could search the purse for weapons. Ms. Grall responded, "`OK.'" Clerk's Papers (CP) at 86 (3.6 Finding of Fact 4). On the other hand, Ms. Grall testified that she was ordered to sit on the curb while the truck was being searched, and she was told that her purse was going to be searched because it was in the truck. Ms. Grall stated that she hesitated when the officer asked to search her purse, but the officer told her that the purse would be searched regardless of her consent. She also stated that she did not consent to the search of her purse and she was not told that the purse was being searched for weapons. The trial court found Officer Gravelle's testimony more credible.
Officer Gravelle saw several zippered makeup bags in the purse. He opened one of the bags and saw that it contained several plastic bags that held a green leafy substance that the officer suspected was marijuana. Officer Gravelle asked Ms. Grall what it was. She responded, "`You know what it is.'" CP at 131 (3.5 Finding of Fact 2). The officer asked her to identify it, and she admitted that it was marijuana. Ms. Grall was arrested for possession of the marijuana and advised of her Miranda rights. Ms. Grall waived her rights and gave additional incriminating statements, including a written statement on a form that included Miranda warnings, concerning where she got the marijuana and what she intended to do with it. In a search of Ms. Grall's purse incident to her arrest, more marijuana was found. Ms. Grall was ultimately charged with possession of marijuana with intent to deliver.
The trial court denied her motions to suppress. She was convicted following a bench trial.
DISCUSSION a. Suppression of evidence
We review a trial court's conclusion of law at a suppression hearing de novo and its findings of fact for substantial evidence. State v. Carter, 151 Wn.2d 118, 125, 85 P.3d 887 (2004). The trial court's findings must support the conclusions of law. State v. Vickers, 148 Wn.2d 91, 116, 59 P.3d 58 (2002). When serving as a fact finder, the trial court decides issues of fact and makes credibility determinations. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). We do not disturb credibility determinations on appeal. Id.
Warrantless searches of constitutionally protected areas are presumed unreasonable absent proof that one of the well established exceptions applies. State v. Ladson, 138 Wn.2d 343, 349, 979 P.2d 833 (1999). The State bears the burden of establishing an exception to the warrant requirement. State v. Potter, 156 Wn.2d 835, 840, 132 P.3d 1089 (2006). A warrantless search is constitutional when valid consent is granted. Washington v. Chrisman, 455 U.S. 1, 9-10, 102 S. Ct. 812, 70 L. Ed. 2d 778 (1982); State v. Cantrell, 124 Wn.2d 183, 187, 875 P.2d 1208 (1994).
Whether consent is freely given is a factual determination based on the totality of the circumstances, including whether Miranda warnings had been given prior to obtaining consent, the degree of education and intelligence of the consenting person, and whether the consenting person was advised of the right not to consent. State v. Reichenbach, 153 Wn.2d 126, 132, 101 P.3d 80 (2004). No single factor is determinative, and the State bears the burden of establishing the voluntariness of the consent by clear and convincing evidence. State v. Smith, 115 Wn.2d 775, 789, 801 P.2d 975 (1990).
Ms. Grall argues that her consent to search her purse was not voluntary. She points to the absence of Miranda warnings, her lack of knowledge that she had a right to refuse consent, and her intellectual limitations.
Here, the trial court concluded that Ms. Grall was not in custody when she consented to the search of her purse, so Miranda warnings were not required. Ms. Grall challenges the custody determination for Miranda purposes. Even if she was not in custody, this court has held that the failure to give Miranda warnings to a defendant in custody does not automatically invalidate consent to search. State v. Nelson, 47 Wn. App. 157, 162, 734 P.2d 516 (1987).
The trial court also concluded that the officers were not required under the law to inform Ms. Grall of her right to refuse to consent to a search. Further, the validity of Ms. Grall's consent to the search of her purse does not depend on the officer advising her of her right to refuse consent to search. State v. Tagas, 121 Wn. App. 872, 878, 90 P.3d 1088 (2004).
As to Ms. Grall's final argument concerning her intelligence, the trial court found that Ms. Grall was an intelligent person. Although Ms. Grall had completed school only up to the fourth grade, she went on to obtain a GED (general education development), and complete classes in a community college nursing program. According to Ms. Grall, she discontinued her nursing education due to health reasons, not because of academic problems.
The court properly concluded that Ms. Grall voluntarily consented to the search of her purse.
b. Suppression of statements
The Fifth Amendment to the United States Constitution provides the right to be free from compelled self-incrimination while in police custody. U.S. Const. amend. V; U.S. Const. amend. XIV; Miranda, 384 U.S. at 444; State v. Sargent, 111 Wn.2d 641, 647, 762 P.2d 1127 (1988). To protect this right, law enforcement officers are required to provide Miranda warnings to a person in custody before that person is subjected to interrogation. Miranda, 384 U.S. at 479. Statements obtained from a person during a custodial interrogation without the benefit of Miranda warnings are inadmissible. Id. at 444. Custodial interrogations occur when law enforcement officers question an individual who has been "taken into custody or otherwise deprived of his freedom of action in any significant way." Id. Once the officer found the marijuana in Ms. Grall's purse, she obviously was not free to leave. No reasonable person would feel otherwise.
The trial court found that Ms. Grall was given Miranda warnings after she was placed under arrest for possession of marijuana and before she was asked any questions about the marijuana. Ms. Grall correctly argues that this finding is unsupported by substantial evidence. The officer clearly asked Ms. Grall to identify the substance he found in her purse prior to giving Ms. Grall Miranda warnings. Ms. Grall's response identifying the substance should have been suppressed. Nonetheless, that error was harmless.
Erroneous admission of a statement in violation of Miranda is harmless if the appellate court is convinced beyond a reasonable doubt that any reasonable jury would have reached the same result in the absence of the error. State v. Ng, 110 Wn.2d 32, 38, 750 P.2d 632 (1988) (citing State v. Guloy, 104 Wn.2d 412, 425-26, 705 P.2d 1182 (1985)). To determine the probable outcome, the reviewing court must focus on the evidence that remains after excluding the tainted evidence. State v. Thamert, 45 Wn. App. 143, 151, 723 P.2d 1204 (1986).
The subject matter of the improperly unsuppressed statement related only to the identity of the substance. Even without Ms. Grall's admission as to the identity of the substance, Officer Gravelle testified and the court found that the substance was readily identifiable as marijuana. The substance in this case was also subsequently tested at the crime lab, which confirmed that the substance was marijuana. The error is harmless.
Ms. Grall next contends that her subsequent post- Miranda statements were tainted by the improper pre- Miranda confession. When multiple interrogations and confessions occur, the lack of a proper warning before the first in-custody statement does not necessarily render inadmissible statements made during interrogation after appropriate warning. State v. Lavaris, 99 Wn.2d 851, 857, 664 P.2d 1234 (1983) (citing Miranda, 384 U.S. at 494). The facts and circumstances of each case must be examined to determine the existence and extent of a causal relationship between the earlier unconstitutional conduct and the later statement. Id. at 857-58. "`[E]vidence will not be suppressed . . . if the causal connection between its acquisition and the unlawful activity is attenuated.'" State v. Smith, 113 Wn. App. 846, 856, 55 P.3d 686 (2002) (quoting State v. Storhoff, 84 Wn. App. 80, 83, 925 P.2d 640 (1996), aff'd, 133 Wn.2d 523, 946 P.2d 783 (1997)).
Here, the later confessions, particularly those related to her intent to deliver the marijuana, are not connected to the earlier admission that the substance was marijuana. As Officer Gravelle testified, Ms. Grall told him that the substance was what he thought it was — marijuana.
Ms. Grall asserts that her case has facts similar to those in Lavaris, where the court stated that once the defendant's Miranda rights had already been violated, "having already `let the cat out of the bag', a subsequent Miranda warning has little significance." 99 Wn.2d at 859. Ms. Grall did not let the cat out of the bag in this case by implying the obvious — that the substance was marijuana.
CONCLUSION
The trial court did not err in concluding that the search of Ms. Grall's purse was voluntary. The trial court finding that Ms. Grall was given Miranda warnings after she was placed under arrest for possession of marijuana and before she was asked any questions about the marijuana is unsupported by substantial evidence. This finding is, however, harmless. Ms. Grall's subsequent inculpatory statements were not tainted by a previous illegally obtained statement.
Affirmed.
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.
KULIK and BROWN, JJ., concur.