Accordingly, whether a defendant waives his constitutional rights must be determined on the basis of testimony accepted as correct by the trial court. State v. Haverty, 3 Wn. App. 495, 475 P.2d 887 (1970); State v. Davis, 73 Wn.2d 271, 283, 438 P.2d 185 (1968). [2, 3] The trial court, from the testimony it accepts as true, must determine initially whether the mere refusal to sign a waiver of rights form is under the circumstances testified to the same as the refusal to answer questions.
U.S. v. Andrews, 675 F.2d 962, 964 (8th Cir. 1981)("There was evidence that placed the defendant at the site of the theft near the time it was stolen. Add to this his possession of the stolen goods a day later, his failure to adequately explain that possession and his actions after the crime; and it is clear that the guilty verdict was supported by sufficient evidence" although defendant testified under oath that he did not know item was stolen; "government [also] argue[d] that because of the unbelievable nature of the defendant's explanation, the out-of-court statements [defendant made to law enforcement saying the same] were tantamount to a confession"); State v. Haverty, 475 P.2d 887, 889 (Wash. Ct. App. 1970)("In the instant case when the officers first saw the defendant with the coat and tag [the condition of which suggested that the coat had been removed from the store without the defendant paying for it], the sight aroused suspicion warranting further inquiry to determine if there was an innocent explanation dispelling the suspicion aroused. When, however, defendant gave an improbable explanation of how he came into possession of the coat, probable cause to arrest arose.")
In addition, it is possible to conduct the required voluntariness hearing in conjunction with the trial itself rather than prior to the commencement of the trial. See State v. Haverty, 3 Wn. App. 495, 498, 475 P.2d 887 (1970). In the present case the court, sitting without a jury, did not conduct a formal CrR 101.20W hearing.
Under Miranda, 384 U.S. 436, the State may not admit as trial evidence any statements a suspect makes during a custodial interrogation unless it proves, by a preponderance of the evidence, the defendant received fully effective Miranda warnings, and the defendant knowingly, intelligently, and voluntarily waived his or her Miranda rights before making those statements. See also State v. Haverty, 3 Wn.App. 495, 498, 475 P.2d 887 (1970); State v. Athan, 160 Wn.2d 354, 380, 158 P.3d 27 (2007). "[C]ourts have generally rejected a per se rule as to when a [defendant] must be readvised of his rights after the passage of time or a change in questioners."
In addition, the trial court may conduct the required voluntariness hearing in conjunction with the trial itself rather than before commencement of the trial. State v. Haverty, 3 Wn.App. 495, 498, 475 P.2d 887 (1970).
v. Hegge, 53 Wn.App. 345, 766 P.2d 1127 (1989); State v. Marker, 4 Wn.App. 681, 483 P.2d 853 (1971); State v. Haverty, 3 Wn.App. 495, 475 P.2d 887 (1970). A criminal defendant's constitutional right to counsel at all stages of the criminal procedure compels a conclusion that counsel needs a court order to withdraw from representation of a defendant.
. He supports these allegedly exclusive criteria by citing State v. Thornton, 41 Wn.App. 506, 705 P.2d 271 (1985); State v. Washington, 4 Wn.App. 856, 484 P.2d 415 (1971); and State v. Knutson, 3 Wn.App. 495, 475 P.2d 887 (1970).
A voluntary waiver need not be expressed; it may be implied by the facts and circumstances under which the statement is made. State v. Haverty, 3 Wn.App. 495, 498, 475 P.2d 887 (1970). Here, the trial court did not err by denying Mr. Galvan's motion to suppress his statements.
Other facts supportive of probable cause include furtive movements and lying to the police, both of which evidence consciousness of guilt. Sibron v. New York, 392 U.S. 40, 66, 20 L.Ed.2d 917, 88 S.Ct. 1889, 1904 (1968) (deliberate furtive gestures at the approach of the police are strong indicia of guilty mens rea) (citing Brinegar v. United States, 338 U.S. 160, 93 L.Ed. 1879, 69 S.Ct. 1302 (1949)); State v. Goodman, 42 Wn. App. 331, 711 P.2d 1057 (1985), (improbable explanation and false answers may be considered in probable cause determination), review denied, 105 Wn.2d 1012 (1986); State v. Bryan, 40 Wn. App. 366, 698 P.2d 1084 (1985) (false answers, indicating guilty mens rea combined with circumstantial evidence); State v. Sinclair, 11 Wn. App. 523, 531, 523 P.2d 1209 (1974) (false answers); State v. Haverty, 3 Wn. App. 495, 475 P.2d 887 (1970) (improbable explanation of possession of stolen property); see also United States v. Ortiz, 422 U.S. 891, 897, 45 L.Ed.2d 623, 629, 95 S.Ct. 2585 (1975) (dicta) (officer may consider suspect's response to questioning). A few courts have distinguished between whether the smell emanates from the suspect's person or from the car, holding that probable cause to arrest exists only when the defendant herself smells of narcotics. See 2 W. LaFave, Search and Seizure ยง 3.6(b) (2d ed. 1987) (collecting cases).
Improbable explanations and false answers to police questions about lawful possession may give rise to probable cause. State v. Sinclair, 11 Wn. App. 523, 531, 523 P.2d 1209 (1974); State v. Haverty, 3 Wn. App. 495, 498, 475 P.2d 887 (1970). See also State v. Bryan, 40 Wn. App. 366, 698 P.2d 1084 (1985), where a known lie combined with circumstantial evidence to provide probable cause for arrest.