Opinion
No. 31265-4-II
Filed: March 30, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No. 03-1-02762-8. Judgment or order under review. Date filed: 12/16/2003. Judge signing: Hon. Gary Steiner.
Counsel for Appellant(s), Lise Ellner, Attorney at Law, PO Box 2711, Vashon, WA 98070-2711.
Counsel for Respondent(s), John Michael Sheeran, Attorney at Law, Pierce Cty Prosecutor S, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2102.
Lisa A. Ruyle appeals her conviction for possession of methamphetamine, following a bench trial on stipulated facts, based on the trial court's denial of her CrR 3.6 suppression motion.
CrR 3.6 states:
(a) Pleadings. Motions to suppress physical, oral or identification evidence, other than motion pursuant to rule 3.5, shall be in writing supported by an affidavit or document setting forth the facts the moving party anticipates will be elicited at a hearing, and a memorandum of authorities in support of the motion. Opposing counsel may be ordered to serve and file a memorandum of authorities in opposition to the motion. The court shall determine whether an evidentiary hearing is required based upon the moving papers. If the court determines that no evidentiary hearing is required, the court shall enter a written order setting forth its reasons.
(b) Hearing. If an evidentiary hearing is conducted, at its conclusion the court shall enter written findings of fact and conclusions of law.
After arresting the driver of a lawfully stopped vehicle, a police officer told Ruyle that she was free to leave. He retrieved her purse from the vehicle and asked for her consent to search it. Ruyle contends she was illegally seized, making her consent invalid, and that she was prejudiced by the trial court's tardy entry of CrR 3.6 findings and conclusions. We disagree and affirm.
FACTS
On June 12, 2003, Officer Adam Kleffman of the Puyallup Police Department was working a seatbelt emphasis patrol on the 400 block of River Road in Puyallup, Pierce County. Officer Kleffman saw a blue Mustang and decided to run its license plate to see if it was stolen. The vehicle was not stolen, but its registration tabs had expired in July 2001. The tabs on the vehicle showed that they were valid through 2003. Officer Kleffman activated the lights on his patrol car and stopped the Mustang.
The driver of the car, Kimberly Windsor, admitted to Officer Kleffman that her driver's license was suspended and that she did not have insurance. Officer Kleffman noticed that Ruyle, a passenger in the car, was not wearing her seatbelt properly. Officer Kleffman asked for Ruyle's identification, and she provided him with an identification card. He issued her a citation for not wearing a seatbelt.
Apparently, Ruyle's seatbelt was fastened, but the shoulder portion of the harness was improperly wrapped behind her body.
Officer Kleffman ran a check on Windsor and confirmed that her license had indeed been suspended. He arrested Windsor and placed her in the back of his patrol car. Then Officer Kleffman went back to the Mustang and asked Ruyle to get out of the car because he was going to have it towed. Ruyle got out, and Officer Kleffman advised her that she was free to leave, but he asked her if there was anything in the vehicle that she wanted to take with her. Ruyle responded that there was and pointed to her purse on the floorboard in front of the passenger seat.
Officer Kleffman testified that Ruyle would not have been permitted to drive the car home because she did not have a driver's license; moreover, his department's policy was to not release a car to someone who was not a registered owner.
Officer Kleffman testified that he asked if he could search Ruyle's purse and she consented. Officer Kleffman brought the purse to the rear of the Mustang, where Ruyle could see it, and he found a glass pipe with a residue that later tested positive for methamphetamine. Officer Kleffman arrested Ruyle, handcuffed her, and read her Miranda warnings from a preprinted card. Officer Kleffman searched Ruyle incident to this arrest and found a small baggy containing a white crystalline powder in her pants pocket.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Ruyle disputed Officer Kleffman's account. She testified that Officer Kleffman told her to get out of the car and that he took her purse from the car and immediately started looking through it without asking for her permission. She testified that she recalled Officer Kleffman telling her that she was free to leave, but he did not ask her any questions because she was `too busy crying' because she was scared and her friend was being arrested. Report of Proceedings (RP) (Nov. 12, 2003) at 29. She did recall that Officer Kleffman asked Windsor if he could search Windsor's purse.
The State charged Ruyle with one count of possession of methamphetamine. A CrR 3.6 suppression hearing was held on November 12, 2003, and the trial court denied Ruyle's motion to suppress the evidence. In its oral ruling, the trial court stated:
Former RCW 69.50.401(d) (1998).
The court did not enter findings and conclusions on the suppression hearing until September 17, 2004, after Ruyle filed a notice of appeal and submitted her brief on appeal.
We have testimony from the officer somewhat different than [Ruyle], but [Ruyle] also says that she was told she was free to go. The officer was impounding the car, and part of the impound is you take the car and whatever is inside it. . . . He asked her if she wanted to retrieve anything. She didn't have to retrieve anything; she could have walked away.
And then comes the real question. [Ruyle] says he just went through her purse . . . but that seems a little bit inconsistent with [Ruyle's] testimony about the questions asked of [Windsor]. She says the officer did ask [Windsor] if he could search her purse, and [Windsor is] already under arrest, but he takes the time to bother to ask her. . . .
It seems that if the officer is going to ask [Windsor], he might follow the same procedure with [Ruyle]. That's consistent with the officer. His direct testimony was that he did ask if [Ruyle] wanted to retrieve . . . her purse. He testified that he then asked her if he could search the purse and she consented.
Now, if she said no and he searched it anyway, we would have a different question. She says he didn't [ask her], but I find the officer's memory of this more credible . . . because it sounds consistent with the other things the officer did.
RP (Nov. 12, 2003) at 39-40 (emphasis added).
Following a December 16, 2003 bench trial on stipulated facts, the trial court found Ruyle guilty as charged and imposed a standard range sentence of one day confinement.
Ruyle appeals her conviction.
ANALYSIS Consent
Ruyle contends that the trial court erred in finding that she consented to the search of her purse. The question for review is whether sufficient evidence supports the trial court's finding that she consented to the search.
When reviewing the denial of a defendant's motion to suppress evidence, we determine whether substantial evidence supports the trial court's findings of fact and then determine whether the findings support the conclusions of law. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999); State v. Hill, 123 Wn.2d 641, 644, 647, 870 P.2d 313 (1994). Substantial evidence is evidence sufficient to convince a reasonable person of the truth of the trial court's finding. Mendez, 137 Wn.2d at 214. But credibility determinations are for the trier of fact, who has the opportunity to observe the demeanor of witnesses, and are not subject to this court's review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
Officer Kleffman testified that he asked Ruyle for her consent and that she gave it. Ruyle testified to the contrary. The court found Officer Kleffman's testimony more credible than Ruyle's. Based on Officer Kleffman's testimony, sufficient evidence supports the trial court's finding that Ruyle consented to the search of her purse.
Ruyle also asserts that the arrest of the driver of a vehicle does not automatically authorize the search of a passenger's belongings. Although one recognized exception to the warrant requirement is a search incident to lawful arrest, State v. Johnson, 128 Wn.2d 431, 447, 909 P.2d 293 (1996), arrest of one or more vehicle occupants does not, without more, provide the `authority of law' under article I, section 7 of our state constitution to search other, non-arrested vehicle passengers or personal belongings clearly associated with them. State v. Parker, 139 Wn.2d 486, 502-03, 987 P.2d 73 (1999). But here, the trial court clearly determined that the search was valid based on Ruyle's consent, not a generalized search incident to the driver's arrest.
Seizure and Miranda
But Ruyle also contends that she was actually seized by the police officer when the police officer removed her purse, effectively `immobilizing' her. She argues that this seizure required the police to give her Miranda warnings before her consent to search could be valid.
Citing State v. O'Day, 91 Wn. App. 244, 252, 955 P.2d 860 (1998), Ruyle asserts that the lack of Miranda warnings following an illegal investigative detention automatically vitiates a defendant's consent and mandates suppression. But we note that O'Day contains no such statement.
With a few exceptions, warrantless searches are per se unreasonable. State v. Johnson, 128 Wn.2d 431, 446-47, 909 P.2d 293 (1996). Voluntary consent is one such exception to the warrant requirement. State v. Cantrell, 124 Wn.2d 183, 187, 875 P.2d 1208 (1994). But consent given pursuant to an unlawful detention is not voluntary as a matter of law. See State v. Armenta, 134 Wn.2d 1, 17-18, 948 P.2d 1280 (1997); see also State v. Soto-Garcia, 68 Wn. App. 20, 27, 841 P.2d 1271 (1992) (consent `obtained through exploitation of a prior illegality may be invalid even if voluntarily given').
Whether a person has been unlawfully detained is a mixed question of law and fact; a court's factual findings are entitled to great deference, but the ultimate question of whether those facts constitute a seizure is an issue of law we review de novo. Armenta, 134 Wn.2d at 9 (citing State v. Thorn, 129 Wn.2d 347, 351, 917 P.2d 108 (1996)).
`Not every encounter between an officer and an individual amounts to a seizure.' State v. Aranguren, 42 Wn. App. 452, 455, 711 P.2d 1096 (1985). A person is `seized' under the Fourth Amendment only if, `in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.' United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980). `Whether a reasonable person would believe he was detained depends on the particular, objective facts surrounding the encounter.' State v. Ellwood, 52 Wn. App. 70, 73, 757 P.2d 547 (1988); Armenta, 134 Wn.2d at 10-11.
Similarly, a person is seized under article I, section 7 of the 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 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 defined by the actions of the law enforcement officer. Young, 135 Wn.2d at 510-11.
A police encounter may ripen into a seizure when, for example, a police officer retains identification or property such that the defendant is not free to leave or becomes `immobilized.' See Armenta, 134 Wn.2d at 6, 12 (seizure when police officer placed defendant's money in patrol car `for safe keeping'); State v. Thomas, 91 Wn. App. 195, 198, 200-01, 955 P.2d 420 (seizure occurred when officer, while retaining defendant's identification, took three steps back to conduct warrants check on his hand-held radio), review denied, 136 Wn.2d 1030 (1998); State v. Dudas, 52 Wn. App. 832, 834, 764 P.2d 1012 (1988) (seizure occurred under Fourth Amendment when deputy took identification card and returned to patrol car), review denied, 112 Wn.2d 1011 (1989); Aranguren, 42 Wn. App. at 456 (seizure when an officer took defendants' identification documents to vehicle to write names down and run warrants checks). In State v. O'Day, 91 Wn. App. 244, 955 P.2d 860 (1998), Division Three of this court found that a passenger was illegally seized when the officer ordered her out of the car, placed her purse out of reach, asked if she had drugs or weapons, and asked if she would consent to a search and it held that the illegal investigative detention vitiated the defendant's consent. 91 Wn. App. 244.
Other courts have found a seizure has occurred when the police `immobilized' a defendant through verbal authority, without removing the defendant's property or identification from the defendant's presence. See State v. Coyne, 99 Wn. App. 566, 572, 995 P.2d 78 (2000) (seizure when officer directed defendants to sit on hood of patrol car); State v. Barnes, 96 Wn. App. 217, 223, 978 P.2d 1131 (1999) (seizure when officer communicated mistaken belief to defendant that he had outstanding warrant, and told him to wait while officer checked warrant's status); Ellwood, 52 Wn. App. at 73 (seizure after defendant verbally identified himself and officer told him to `wait right here' while he ran warrant check).
But Ruyle's reliance on these cases is misplaced here. In contrast to each of the cases cited above, Officer Kleffman unambiguously told Ruyle that she was free to leave. Officer Kleffman had Ruyle's purse in his possession at one point, but unlike in O'Day, where the court found an illegal investigative detention, Officer Kleffman did not place Ruyle's purse out of reach and ask if there were drugs in the purse before asking for consent to search. Here, Officer Kleffman retrieved Ruyle's purse from the car and she immediately consented to his request to search it. There was no indication in the record before us that he would have kept the purse from her had she refused consent. Nor is there any indication that Officer Kleffman kept the purse pending any sort of investigation or ordered Ruyle to wait while he checked on something. Ruyle never testified that she did not feel free to leave; she merely testified that Officer Kleffman did not ask her consent before searching her purse; the court here adopted Officer Kleffman's testimony to the contrary, as was its prerogative.
Considering all the circumstances, a reasonable person in Ruyle's position would have felt free to leave when Officer Kleffman told her she was free to do so. Ruyle's consent was obtained voluntarily following a valid stop and the search of her purse was lawful.
Delay in Entering Suppression Findings and Conclusions
Finally, Ruyle contends that her conviction should be reversed because she was prejudiced by the trial court's failure to timely enter written findings and conclusions. The trial court belatedly entered its findings and conclusions on September 17, 2004, after Ruyle filed her brief on appeal.
At the conclusion of a hearing on a motion to suppress, the trial court must enter written findings of fact and conclusions of law. CrR 3.6(b). The purpose of findings of fact and conclusions of law is to aid an appellate court on review. State v. Stock, 44 Wn. App. 467, 477, 722 P.2d 1330 (1986) (citing State v. Agee, 89 Wn.2d 416, 573 P.2d 355 (1977)).
We will not reverse a conviction for tardy entry of findings unless the appellant establishes that he was prejudiced by the delay or that the findings and conclusions were tailored to meet the issues presented in his appellate brief. State v. Byrd, 83 Wn. App. 509, 512, 922 P.2d 168 (1996), review denied, 130 Wn.2d 1027 (1997).
Here, Ruyle does not make the necessary showing of prejudice. Instead she asserts that the record is somehow `inaccurate and insufficient to permit appellate review' because the court's oral ruling on consent is based on `tenuous' logic, that because Officer Kleffman asked to search the driver's purse he must have asked to search Ruyle's purse as well. Br. of Appellant at 20. But this assertion mischaracterizes the trial court's findings. Officer Kleffman testified that he asked Ruyle for her consent, and the court's oral ruling indicated that it found he had done so. While Ruyle testified to the contrary, the court found Officer Kleffman's testimony more credible and persuasive. Thus the record is not `inaccurate [or] insufficient' for our review nor has Ruyle shown prejudice.
Ruyle also asserts that the trial court did not make an oral ruling as to whether asking for Ruyle's consent was a custodial interrogation requiring prior Miranda warnings. But the trial court's oral ruling indicates that Ruyle was not seized at the time Officer Kleffman asked permission to search her purse, so no custodial interrogation occurred.
Substantial evidence supports the trial court's belated findings and conclusions. They are consistent with the court's oral ruling and not improperly tailored. Ruyle does not show that the belated findings prejudiced her in any way. Thus we affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HUNT and VAN DEREN, JJ., Concur.