Opinion
67028-0-I
07-16-2012
STATE OF WASHINGTON, Respondent, v. ADAM J. SPRY, Appellant.
UNPUBLISHED OPINION
Lau, J.
Adam Spry appeals his convictions for unlawful possession of methamphetamine and unlawful possession of heroin. He argues that the trial court erred when it denied his motion to suppress evidence based on the State's failure to establish consent to search his vehicle. Finding no error, we affirm.
FACTS
While patrolling on November 28, 2010, Whatcom County Deputy Courtney Polinder noticed a vehicle that lacked a required license plate light. Polinder initiated a traffic stop and contacted the driver, Adam Spry. Spry immediately lit a cigarette and appeared nervous. Spry told Polinder he had an outstanding arrest warrant and possibly a suspended driver's license. Polinder confirmed with dispatch that Spry's license was suspended. He then handcuffed Spry, told him he was under arrest, read him his Miranda rights, searched him, and placed him in the back seat of the patrol car.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Polinder believed that Spry's behavior indicated he was under the influence of some form of narcotic. Polinder also knew that Spry had previous contacts with law enforcement involving illegal drugs. Polinder asked Spry if he would consent to a search of his vehicle. Polinder testified at the suppression hearing:
I asked him if I could search his car. He didn't have an issue with that. He said he didn't have anything to hide. I advised him of the Ferrier warnings, that he had the right to refuse, revoke or stop the search at any time. I advised him I was going through the trunk. He didn't have an issue with that.
State v. Ferrier, 136 Wn.2d 103, 960 P.2d 927 (1998).
Report of Proceedings (RP) (Mar. 7, 2011) at 19. Polinder clarified at trial that in response to his request for consent to search the vehicle, Spry "said yes, he had nothing to hide." RP (Mar. 8, 2011) at 90. While seated in the patrol vehicle's back seat, Spry could observe the search and speak to Polinder. At no time did Spry revoke or limit his consent.
Polinder seized a smoking pipe hidden in a sunglasses case, a loaded syringe containing what appeared to be heroin, and a plastic bag containing white residue during a search of the passenger compartment. In the trunk, Polinder found a drug scale with spots of what appeared to be heroin, a cooking spoon with residue, several hypodermic needles, and several small plastic bags containing what appeared to be methamphetamine residue. When questioned, Spry admitted that the substance in the loaded syringe and the residue on the scale and spoon was heroin. The pipe later tested positive for methamphetamine.
A laboratory test later confirmed the presence of heroin residue on the scale.
The State charged Spry with possession of methamphetamine and possession of heroin. Spry moved pretrial to suppress the evidence discovered during the vehicle search. He argued only that because the traffic stop was pretextual, his lawful consent to search the vehicle was vitiated by the unlawful stop. Spry specifically argued in his suppression motion:
In this case, although Defendant gave consent to search his vehicle, this consent was clearly the fruit of the initial illegal seizure. Where consent, though voluntary, is obtained through exploitation of a prior unlawful search or seizure, all evidence obtained in the otherwise consensual search must be suppressed.
At a hearing on the motion, the State called Polinder to testify about the basic facts surrounding the traffic stop and his request for consent to search Spry's vehicle. Spry never cross-examined Polinder about the consent to search. Defense counsel instead conceded that Spry's consent was voluntary but argued consent was vitiated by the illegal pretextual stop.
The trial court denied Spry's motion to suppress, finding that given the totality of the circumstances, the defense failed to show that the traffic stop was pretextual. The court also found that Spry received proper Ferrier warnings and Polinder's search did not exceed the scope of the consent given. The jury convicted Spry as charged, and the court imposed a standard range sentence.
ANALYSIS
Spry argues for the first time on appeal that he did not knowingly and voluntarily consent to the search of his vehicle. The State counters that (1) Spry waived this argument by failing to raise it below and (2) even if we review his claim, the record demonstrates that Spry knowingly, voluntarily, and affirmatively consented to the search.
Manifest Error
Generally a party's failure to raise an issue at trial waives the issue on appeal. RAP 2.5(a); State v. Robinson, 171 Wn.2d 292, 304, 253 P.3d 84 (2011). An exception exists when a party raises a "manifest error affecting a constitutional right." RAP 2.5(a)(3); Robinson, 171 Wn.2d at 304. "The defendant must identify a constitutional error and show how the alleged error actually affected the defendant's rights at trial. It is this showing of actual prejudice that makes the error 'manifest, ' allowing appellate review." State v. Kirkman, 159 Wn.2d 918, 926-27, 155 P.3d 125 (2007).
Regarding suppression of evidence, the defendant has the burden to request a suppression hearing and identify the issue for the trial court. CrR 3.6; State v. Gould, 58 Wn.App. 175, 185-86, 791 P.2d 569 (1990). A defendant's "failure to move to suppress evidence he contends was illegally gathered constitutes a waiver of any error associated with the admission of the evidence . . . ." State v. Mierz, 127 Wn.2d 460, 901 P.2d 286 (1995); see also State v. Lee, 162 Wn.App. 852, 857, 259 P.3d 294 (2011), review denied, 173 Wn.2d 1017 (2012) ("Under RAP 2.5(a), a party may raise manifest error affecting a constitutional right for the first time on appeal. 'A failure to move to suppress evidence, however, constitutes a waiver of the right to have it excluded.'") (footnote omitted) (quoting State v. Mierz, 72 Wn.App. 783, 789, 866 P.2d 65, 875 P.2d 1228 (1994)). A defendant also waives the right to raise an issue on appeal if he failed to move for suppression on that basis in the trial court. State v. Garbaccio, 151 Wn.App. 716, 731, 214 P.3d 168 (2009), review denied, 168 Wn.2d 1027, 230 P.3d 1060 (2010) (because defendant's "present contention was not raised in his suppression motion, and because he did not seek a ruling on this issue from the trial court, we will not consider it for the first time on appeal.").
In Robinson, our Supreme Court addressed issue preservation in the context of search and seizure and held that certain limited issues may be raised for the first time on appeal when four conditions are met:
We recognize, however, that in a narrow class of cases, insistence on issue preservation would be counterproductive to the goal of judicial efficiency. Accordingly, we hold that principles of issue preservation do not apply where the following four conditions are met: (1) a court issues a new controlling constitutional interpretation material to the defendant's case, (2) that interpretation overrules an existing controlling interpretation, (3) the new interpretation applies retroactively to the defendant, and (4) the defendant's trial was completed prior to the new interpretation. A contrary rule would reward the criminal defendant bringing a meritless motion to suppress evidence that is clearly barred by binding precedent while punishing the criminal defendant who, in reliance on that binding precedent, declined to bring the meritless motion.Robinson, 171 Wn.2d at 305. Failure to meet one of these conditions means that the ordinary principles of issue preservation apply—thus requiring a defendant to demonstrate the existence of a "'manifest error affecting a constitutional right'" as discussed above. Robinson, 171 Wn.2d at 306 (quoting RAP 2.5(a)(3)); Lee, 162 Wn.App. at 857.
Spry does not argue that his consent issue falls within Robinson's exception to the issue preservation rule. Instead, he argues that we should review the consent issue for the first time on appeal because it involves a manifest error of constitutional magnitude. Citing State v. Jones, 163 Wn.App. 354, 266 P.3d 886 (2011), Spry argues that "[e]rroneous suppression rulings constitute [manifest constitutional] error when the challenged evidence is the basis for the charged offense." Appellant's Br. at 7. But in Garbaccio, we addressed facts similar to Spry's case. In Garbaccio, the defendant raised for the first time on appeal an additional constitutional ground he claimed justified suppression of evidence. Garbaccio, 151 Wn.App. at 730-31. We concluded, "Because [the defendant's] present contention was not raised in his suppression motion, and because he did not seek a ruling on this issue from the trial court, we will not consider it for the first time on appeal." Garbaccio, 151 Wn.App. at 731. Spry made the same omissions here. We adhere to our holding in Garbaccio.
In Jones, Division Two of this court relied on State v. Kirwin, 165 Wn.2d 818, 203 P.3d 1044 (2009), in holding that the defendant's manifest error argument pertaining to evidence he claimed should have been suppressed was reviewable on appeal despite his failure to raise it below. Jones, 163 Wn.App. at 360 n.9. In Kirwin, the court reviewed the validity of a search incident to arrest under RAP 2.5(a)(3) despite the defendant's failure to move in the trial court for suppression of the evidence obtained in the allegedly unlawful search. Kirwin, 165 Wn.2d at 823-28. But the court only reviewed the search incident to arrest issue to determine if the defendant had met his burden to prove that a manifest constitutional error warranting review had occurred. Kirwin, 165 Wn.2d at 823-28. The court determined that the defendant failed to meet his burden and therefore the new issue was not substantively reviewable. Kirwin, 165 Wn.2d at 827-28. Thus, Kirwin does not stand for the principle Jones cites it for. In the same footnote in which it cites Kirwin, Jones also states, " But see State v. Mierz, 127 Wn.2d 460, 468, 901 P.2d 286 (1995) (holding that the defendant's failure to move to suppress evidence obtained during an allegedly unlawful search constituted a waiver of any error associated with the admission of the evidence.)" Jones, 163 Wn.App. at 360 n.9. We cited to Mierz in Garbaccio for our holding that a defendant's failure to move for suppression on a particular basis in the trial court waives that issue on appeal. Garbaccio, 151 Wn.App. at 731.
Express Waiver
Moreover, not only did Spry fail to argue below that the State failed to prove he consented to the search, defense counsel waived the claimed error by conceding in the CrR 3.6 motion and at the CrR 3.6 hearing that Spry voluntarily consented to the search. Spry's motion to suppress stated, "In this case, although Defendant gave consent to search his vehicle . . . ." (Emphasis added.) At the hearing, defense counsel specifically argued, "The consent to search was made subsequent only again because he was arrested as a result of the stop" and stated that the consent was "otherwise voluntary." RP (Mar. 7, 2011) at 41-42 (emphasis added). Defense counsel's argument remained consistent throughout trial and in closing remarks: "Mr. Spry . . . consented to the search of the vehicle and did not limit the scope of the search, and there is no indication . . . that he asked [Deputy Polinder] to stop at any point during the search." RP (Mar. 9, 2011) at 236 (emphasis added). When the trial court ruled on Spry's CrR 3.6 motion, defense counsel did not ask the court to supplement its oral findings and did not object to the trial court's written findings. Accordingly, even assuming that he raises an issue of constitutional magnitude, we decline to consider it. State v. Valladares, 99 Wn.2d 663, 672, 664 P.2d 508 (1983) (appellate review precluded where defendant waived or abandoned a constitutional challenge by acquiescing in the court's treatment of the matter and electing not to take advantage of the mechanism provided for excluding evidence).
Sufficiency of the Evidence
Nonetheless, the record does not support Spry's contention that he merely acquiesced—and, thus, did not affirmatively consent—to the search. The trial court found,
Mr. Spry told Deputy Polinder he could search the vehicle, and stated "he had nothing to hide." At no time did Mr. Spry revoke or limit the consent to search.
Finding of fact 16. The trial court then concluded, "The defendant gave consent for the vehicle to be searched." Conclusion of law 8. Spry challenges both the finding and the conclusion.
We review a trial court's denial of a CrR 3.6 motion to suppress "to determine whether substantial evidence supports the trial court's challenged findings of fact and, if so, whether the findings support the trial court's conclusions of law." State v. Cole, 122 Wn.App. 319, 322-23, 93 P.3d 209 (2004). Evidence is substantial when it is sufficient "to persuade a fair-minded person of the truth of the stated premise." State v. Reid, 98 Wn.App. 152, 156, 988 P.2d 1038 (1999). Conclusions of law are reviewed de novo. Cole, 122 Wn.App. at 323.
Generally "warrantless searches and seizures are per se unreasonable." State v. Reichenbach, 153 Wn.2d 126, 131, 101 P.3d 80 (2004). Consent is an exception to the warrant requirement. Reichenbach, 153 Wn.2d at 131. To prove a consensual search, the State must show (1) the consent was voluntary, (2) the person granting consent had authority to consent, and (3) the search did not exceed the scope of the consent. Reichenbach. 153 Wn.2d at 131. Spry contests only the voluntariness prong.
Deputy Polinder's testimony sufficiently supports finding of fact 16. Polinder asked Spry for permission to search his vehicle and informed him of his right to refuse, limit, or revoke consent at any time during the search. Polinder testified that Spry had no problem with the search and affirmatively stated he had nothing to hide. This unrebutted testimony is sufficient to persuade a fair-minded person that Spry voluntarily consented to the vehicle search. We conclude substantial evidence supports finding of fact 16 and that finding supports conclusion of law 8.
CONCLUSION
Because Spry failed to raise his consent argument below and substantial evidence nevertheless supports the trial court's finding that he consented to the search of his vehicle, we affirm.