IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 69228-3-1 Respondent, v. DIVISION ONE
ANTHONY JOSEPH CORBELLA, UNPUBLISHED OPINION
Appellant. FILED: November 12, 2013
Leach, C.J. — Anthony Corbella appeals his conviction for possession of o — —It— heroin. He challenges the trial court's denial of his motion to suppress §fl CD S o2 evidence seized during his encounter with police, claiming that an initial illegal
search tainted evidence seized from his car in a subsequent consent searcS. 2=> V? Because substantial evidence supports both the trial court's finding that Corbe$£
consented voluntarily to the search of his car and its conclusion that the initial
unlawful search did not taint the subsequent search of the car, we affirm.
Background
On May 11, 2011, at about 11:30 p.m., Bellevue Police Lieutenant Mark
Tarantino observed Anthony Corbella and a woman sitting inside a parked car at
the Newport Hills Park and Ride. They appeared "surprised" to see Tarantino,
who parked his patrol car and approached the other car on foot. Tarantino
shined his flashlight into the car and saw a lighter in Corbella's hand, as well as No. 69228-3-1 / 2
what appeared to be a piece offoil with burn marks on it near Corbella's foot, on the driver's side floorboard. Suspecting that the foil was evidence of drug
activity, Tarantino asked Corbella to hand it to him. Corbella complied, and Tarantino saw that the foil contained burn marks and residue. He handed the foil
back to Corbella and radioed for backup assistance. Corbella complied with
Tarantino's request to step out of the car. Tarantino told Corbella that he
"suspected that there was drug activity going on" and asked him if he used drugs. Corbella said he uses heroin. When Tarantino asked Corbella if there was any
heroin in the car, Corbella said that the passenger door compartment contained
heroin. When backup officers arrived, Tarantino relayed his observations to
Officer Lange, who then spoke to Corbella.
When Lange asked him what he had been doing, Corbella responded that
he had borrowed the car to give his passenger a ride and stopped to consume
heroin. Corbella told Lange that the drugs were in the passenger door side
compartment.
Lange ran a computer check and discovered that Corbella had an outstanding warrant for driving with license suspended in the second degree. Lange told Corbella that he was under arrest, handcuffed him, and read him his Miranda1 rights. Corbella said that he understood his rights and gave permission to search his car by signing a consent to search form, which Lange also read to
1 Miranda v. Arizona. 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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him. The search revealed heroin in the side compartment of the front passenger
door. Lange also found the piece of foil with burn marks and heroin residue on
the floor of the car. The State charged Corbella with possession of heroin.
Corbella moved to suppress all evidence seized during his encounter with the
police.
Following CrR 3.5 and 3.6 hearings, the trial court ruled that Tarantino's
request for the piece of foil was an unlawful search. The court excluded
evidence of the foil, along with all of Tarantino's observations of the foil that he
made after obtaining it. The trial court admitted Tarantino's initial visual
observations from outside the car and the other evidence that Lange obtained.
After a stipulated bench trial, the trial court found Corbella guilty as charged.
Corbella appeals.
Standard of Review
We review the denial of a motion to suppress evidence by determining if
substantial evidence supports the trial court's findings of fact and ifthose findings
support the trial court's conclusions of law.2 Substantial evidence exists if it is
sufficient to persuade a fair-minded, rational person of the truth of the matter
asserted.3 Unchallenged findings of fact are verities on appeal.4 We review conclusions of law de novo.5 The trial court's determination that the primary
2 State v. Ross. 106 Wn. App. 876, 880, 26 P.3d 298 (2001). 3 State v. Lew. 156 Wn.2d 709, 733, 132 P.3d 1076 (2006). 4 State v. Hill. 123 Wn.2d 641, 644, 870 P.2d 313 (1994). 5 State v. Acrev. 148 Wn.2d 738, 745, 64 P.3d 594 (2003).
-3- No. 69228-3-1/4
unlawful search did not taint Lange's subsequent discovery of the heroin is a
mixed question of law and fact, which we review de novo.6 Analysis
Corbella challenges the admission of all evidence obtained after
Tarantino's request that he hand over the foil, arguing that this unlawful search
tainted Lange's consent and thus all subsequently obtained evidence.
Warrantless searches are per se unreasonable, and the State bears the burden
to show one of the "'jealously and carefully drawn"' exceptions to the warrant
requirement.7 Consent is a valid exception, provided (1) it is voluntary, (2) the
person consenting has the authority to do so, and (3) the search does not exceed
the scope of consent.8 The prosecution must show by clear and convincing
evidence that a defendant's consent was free and voluntary.9 Clear and
convincing evidence exists when the evidence shows that the ultimate fact in
issue is highly probable.10 A court determines if consent is free and voluntary as
a question of fact based upon the totality of the circumstances, including (1) if
6 Humphrey Indus. Ltd. v. Clav St. Assocs., 170 Wn.2d 495, 501-02, 242 P.3d 846 (2010). 7 State v. Morse. 156 Wn.2d 1, 7, 123 P.3d 832 (2005) (internal quotation marks omitted) (quoting State v. Reichenbach. 153 Wn.2d 126, 131, 101 P.3d 80 (2004)). 8 State v. Thompson. 151 Wn.2d 793, 803, 92 P.3d 228 (2004). Though Corbella was driving a borrowed car, the car's owner later confirmed that he gave Corbella his permission to use it, and thus Corbella had authority to consent to a search. Corbella does not argue that the search exceeded the scope of his consent. 9 State v.Smith. 115 Wn.2d 775, 789, 801 P.2d 975 (1990) (citing State v. Shoemaker. 85 Wn.2d 207, 210, 533 P.2d 123 (1975); State v. Nelson. 47 Wn. App. 157, 163, 734 P.2d 516 (1987)). 10 In re Dependency of K.S.C.. 137 Wn.2d 918, 925, 976 P.2d 113 (1999).
-4- No. 69228-3-1 / 5
police gave Miranda warnings before obtaining consent, (2) the consenting
person's degree of education and intelligence, and (3) if the police advised the
consenting person of the right to refuse consent.11 No one factor is
determinative.12
If an unlawful search precedes a later consent search, the court must
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 69228-3-1 Respondent, v. DIVISION ONE
ANTHONY JOSEPH CORBELLA, UNPUBLISHED OPINION
Appellant. FILED: November 12, 2013
Leach, C.J. — Anthony Corbella appeals his conviction for possession of o — —It— heroin. He challenges the trial court's denial of his motion to suppress §fl CD S o2 evidence seized during his encounter with police, claiming that an initial illegal
search tainted evidence seized from his car in a subsequent consent searcS. 2=> V? Because substantial evidence supports both the trial court's finding that Corbe$£
consented voluntarily to the search of his car and its conclusion that the initial
unlawful search did not taint the subsequent search of the car, we affirm.
Background
On May 11, 2011, at about 11:30 p.m., Bellevue Police Lieutenant Mark
Tarantino observed Anthony Corbella and a woman sitting inside a parked car at
the Newport Hills Park and Ride. They appeared "surprised" to see Tarantino,
who parked his patrol car and approached the other car on foot. Tarantino
shined his flashlight into the car and saw a lighter in Corbella's hand, as well as No. 69228-3-1 / 2
what appeared to be a piece offoil with burn marks on it near Corbella's foot, on the driver's side floorboard. Suspecting that the foil was evidence of drug
activity, Tarantino asked Corbella to hand it to him. Corbella complied, and Tarantino saw that the foil contained burn marks and residue. He handed the foil
back to Corbella and radioed for backup assistance. Corbella complied with
Tarantino's request to step out of the car. Tarantino told Corbella that he
"suspected that there was drug activity going on" and asked him if he used drugs. Corbella said he uses heroin. When Tarantino asked Corbella if there was any
heroin in the car, Corbella said that the passenger door compartment contained
heroin. When backup officers arrived, Tarantino relayed his observations to
Officer Lange, who then spoke to Corbella.
When Lange asked him what he had been doing, Corbella responded that
he had borrowed the car to give his passenger a ride and stopped to consume
heroin. Corbella told Lange that the drugs were in the passenger door side
compartment.
Lange ran a computer check and discovered that Corbella had an outstanding warrant for driving with license suspended in the second degree. Lange told Corbella that he was under arrest, handcuffed him, and read him his Miranda1 rights. Corbella said that he understood his rights and gave permission to search his car by signing a consent to search form, which Lange also read to
1 Miranda v. Arizona. 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
-2- No. 69228-3-1 / 3
him. The search revealed heroin in the side compartment of the front passenger
door. Lange also found the piece of foil with burn marks and heroin residue on
the floor of the car. The State charged Corbella with possession of heroin.
Corbella moved to suppress all evidence seized during his encounter with the
police.
Following CrR 3.5 and 3.6 hearings, the trial court ruled that Tarantino's
request for the piece of foil was an unlawful search. The court excluded
evidence of the foil, along with all of Tarantino's observations of the foil that he
made after obtaining it. The trial court admitted Tarantino's initial visual
observations from outside the car and the other evidence that Lange obtained.
After a stipulated bench trial, the trial court found Corbella guilty as charged.
Corbella appeals.
Standard of Review
We review the denial of a motion to suppress evidence by determining if
substantial evidence supports the trial court's findings of fact and ifthose findings
support the trial court's conclusions of law.2 Substantial evidence exists if it is
sufficient to persuade a fair-minded, rational person of the truth of the matter
asserted.3 Unchallenged findings of fact are verities on appeal.4 We review conclusions of law de novo.5 The trial court's determination that the primary
2 State v. Ross. 106 Wn. App. 876, 880, 26 P.3d 298 (2001). 3 State v. Lew. 156 Wn.2d 709, 733, 132 P.3d 1076 (2006). 4 State v. Hill. 123 Wn.2d 641, 644, 870 P.2d 313 (1994). 5 State v. Acrev. 148 Wn.2d 738, 745, 64 P.3d 594 (2003).
-3- No. 69228-3-1/4
unlawful search did not taint Lange's subsequent discovery of the heroin is a
mixed question of law and fact, which we review de novo.6 Analysis
Corbella challenges the admission of all evidence obtained after
Tarantino's request that he hand over the foil, arguing that this unlawful search
tainted Lange's consent and thus all subsequently obtained evidence.
Warrantless searches are per se unreasonable, and the State bears the burden
to show one of the "'jealously and carefully drawn"' exceptions to the warrant
requirement.7 Consent is a valid exception, provided (1) it is voluntary, (2) the
person consenting has the authority to do so, and (3) the search does not exceed
the scope of consent.8 The prosecution must show by clear and convincing
evidence that a defendant's consent was free and voluntary.9 Clear and
convincing evidence exists when the evidence shows that the ultimate fact in
issue is highly probable.10 A court determines if consent is free and voluntary as
a question of fact based upon the totality of the circumstances, including (1) if
6 Humphrey Indus. Ltd. v. Clav St. Assocs., 170 Wn.2d 495, 501-02, 242 P.3d 846 (2010). 7 State v. Morse. 156 Wn.2d 1, 7, 123 P.3d 832 (2005) (internal quotation marks omitted) (quoting State v. Reichenbach. 153 Wn.2d 126, 131, 101 P.3d 80 (2004)). 8 State v. Thompson. 151 Wn.2d 793, 803, 92 P.3d 228 (2004). Though Corbella was driving a borrowed car, the car's owner later confirmed that he gave Corbella his permission to use it, and thus Corbella had authority to consent to a search. Corbella does not argue that the search exceeded the scope of his consent. 9 State v.Smith. 115 Wn.2d 775, 789, 801 P.2d 975 (1990) (citing State v. Shoemaker. 85 Wn.2d 207, 210, 533 P.2d 123 (1975); State v. Nelson. 47 Wn. App. 157, 163, 734 P.2d 516 (1987)). 10 In re Dependency of K.S.C.. 137 Wn.2d 918, 925, 976 P.2d 113 (1999).
-4- No. 69228-3-1 / 5
police gave Miranda warnings before obtaining consent, (2) the consenting
person's degree of education and intelligence, and (3) if the police advised the
consenting person of the right to refuse consent.11 No one factor is
determinative.12
If an unlawful search precedes a later consent search, the court must
determine if the earlier illegality tainted the process of obtaining the derivative
evidence. If so, the Fourth Amendment of the United States Constitution and
article I, section 7 of the Washington Constitution require excluding the evidence
seized in the later search.13 This is a factual determination that requires
examining the police officers' actions and their motivations for their actions. As
part of this inquiry, the court considers if discoveries made in the initial unlawful
search motivated the officers conducting the subsequent search.14 This court
considers (1) the temporal proximity of the illegality and the subsequent consent,
(2) the presence of any significant intervening circumstances, (3) the purpose
and flagrancy of the officers' misconduct, and (4) the giving of Miranda
warnings.15
11 Smith. 115 Wn.2d at 789 (citing Shoemaker. 85 Wn.2d at 212). 12 Smith. 115Wn.2dat789. 13 See Wong Sun v. United States. 371 U.S. 471,484-85, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963); State v. Jensen. 44 Wn. App. 485, 489 n.1, 723 P.2d 443 (1986). 14 Murray v. United States. 487 U.S. 533, 542, 108 S. Ct. 2529, 101 L Ed. 2d 472 (1988); State v. Gaines. 154 Wn.2d 711, 718-21, 116 P.3d 993 (2005); State v. Miles. 159 Wn. App. 282, 291-94, 244 P.3d 1030, review denied. 171 Wn.2d 1022(2011). 15 State v. Gonzales. 46 Wn. App. 388, 398. 731 P.2d 1101 (1986).
-5- No. 69228-3-1/6
As to the first two considerations, Corbella's consent and Lange's search
were close in time to Tarantino's initial search, and there were no significant
intervening circumstances. But Corbella received proper Miranda warnings at
the time of his arrest, and he consented verbally and in writing to a search of his
car after police told him that he did not have to consent. Nothing in the record
indicates that the police used threatening, coercive, or otherwise "flagrant"
behavior.16 Considering the totality of the circumstances, clear and convincing
evidence supports the conclusion that consent to the search was freely and
voluntarily given.
Though Tarantino spoke to Lange about his earlier observations, no
evidence in the record shows that Tarantino's initial unlawful search motivated
Lange's subsequent actions.17 Corbella does not dispute that when Lange asked
him what he had been doing, Corbella volunteered the information that he
stopped in the parking lot to use drugs. He then voluntarily told Lange where the
drugs were. Tarantino's lawful observations and Corbella's answers to Lange's
questions motivated Lange's search, which followed a valid arrest and validly
obtained consent. The earlier illegality of Tarantino's request and handling of the
foil did not taint either Corbella's consent or Lange's later search.
16 Contra State v. O'Neill. 148 Wn.2d 564, 591, 62 P.3d 489 (2003) (holding that officers' repeated requests for consent after defendant's initial refusal constituted coercion and vitiated consent). 17 Lange did not recall if Tarantino told him that he asked for and took the foil from Corbella.
-6- No. 69228-3-1 / 7
Conclusion
Because substantial evidence supports both the trial court's finding that
Corbella consented voluntarily to the search of his car and its conclusion that
Tarantino's unlawful search did not taint Lange's subsequent search of the car,
we affirm.
WE CONCUR:
-7-