IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON f^3 o C3 wo tn ^jc S=o STATE OF WASHINGTON, NO. 72369-3-1 3B» -~*-H -o ZXJ o-n '1 "i ! Respondent, DIVISION ONE CO ^-orn 3a» ~E> Z£z*~~ U3 dw —*o COLLEEN MUIR, UNPUBLISHED OPINION MOT*
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Appellant. FILED: April 13,2015 .)
Lau, J. — Colleen Muir was convicted of possession of methamphetamine with
intent to deliver. On appeal, she argues (1) the trial court erred by failing to enter
written findings after a suppression hearing as required by CrR 3.6, and (2) the trial
court should have suppressed the methamphetamine because her consent to the
search of her safe was invalid since it was the product of an unlawful seizure. Because
the trial court's oral ruling is sufficiently comprehensive to allow a meaningful review of
the issues and Muir was not seized before granting consent, we affirm the judgment and
sentence. 72369-3-1/2
FACTS
Testimony at the CrR 3.6 suppression hearing shows the following: On
February 7, 2013, Colleen Muir was a passenger in a truck driven by James Mclntyre in
Bremerton, Washington. Muir and Mclntyre parked and entered a small convenience
store. Police arrived and entered the store where they arrested Mclntyre on an
outstanding warrant. In a search incident to arrest, they discovered hypodermic
needles commonly used for intravenous drug use.
Detective Aaron Elton learned that officers found the needles while searching
Mclntyre. Detective Elton stood outside, looked into the truck, and saw Mclntyre's
backpack in the truck bed.
Muir remained in the store after Mclntyre's arrest. Detective Elton testified that
Muir was "just standing there. It's a pretty small store. So [Muir] [is] standing there. I contacted her." RP (May 28, 2013) at 10. Detective Elton knew she was the passenger
in the truck so he asked for her name and she told him. He did not ask her for
identification or driver's license.
Detective Elton testified that the both of them walked out of the store together.
He did not tell her to come outside with him. He testified that he did not request or issue
any commands, direct her to stay, or physically touch her. Detective Elton testified that shortly after Muir left the store she sat down on the curb. He recontacted her to clarify which of the items he saw inside the truck belonged to her so he "could gain consent
from both parties to search the truck." RP at 12.
Detective Elton asked Muir for consent to search the truck. Muir said it was up to
Mclntyre. Detective Elton left and spoke to Mclntyre, leaving Muir unattended. -2- 72369-3-1/3
Mclntyre consented to the search but said it was up to Muir because the truck belonged
to her boyfriend. Detective Elton reported back to Muir and told her Mclntyre had
consented but that it was her decision. Muir consented to a search of the truck.
Detective Elton said that from outside the truck he could see a small, oblong, flat
safe with a locking mechanism. He could also see handbags and a cell phone on the
driver's seat. Detective Elton asked Muir if she owned any of the items. Muir said she
purchased the safe that morning for $20. She denied ownership of the other items.
Detective Elton described the tone of the contact with Muir at this point as
"conversational." RP at 14. He described Muir's demeanor as normal and her
responses to his questions as appropriate.
Detective Elton and another officer searched the truck. Detective Elton
discovered a methamphetamine pipe in a bag that neither Mclntyre nor Muir claimed to
own. He asked Muir for permission to open the safe. She denied knowledge of the
combination, but she said that if he was able to, he could open it. Detective Elton said
he noticed that the combination was set to the numbers 1-9-7-6, which he considered
peculiar. He moved the combination one number to 1-9-7-5 and the safe opened. He
found a scale and methamphetamine inside.
Detective Elton arrested Muir and advised her of her Miranda1 rights. She
responded that she understood. He then asked her for permission to search her purse,
and she agreed. Muir said that Mclntyre handed her methamphetamine in the store.
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
-3- 72369-3-1/4
Detective Elton looked in the purse and discovered methamphetamine wrapped in a
$20 bill.
On cross-examination, Detective Elton testified that he may have told Muir he
wanted to talk with her outside of the convenience store. He testified that there were
two marked and two unmarked police vehicles present but that none blocked the truck.
Muir testified that Detective Elton first encountered her in the store and asked to
speak with her outside. Once outside, Muir stated that Detective Elton said, "Well, why
don't you have a seat." RP (May 28, 2013) at 31. Muir said it was about 15 minutes
from the time she sat down to the time Detective Elton opened the safe. She testified
that Detective Elton asked her if she planned on buying drugs anywhere and where she
would go to purchase them. He also asked her where she would go to buy heroin if she
wanted to purchase it.
Muir also testified that Detective Elton asked her three times for consent to
search the truck and that she declined his requests. She stated that when he left to
speak with Mclntyre, he was out of her view and she did not know where he went.
According to Muir, when Detective Elton asked if he could search the safe she
said that she did not have the combination. She testified that she did not feel free to
leave during the encounter because her purse was on the ground and officers were in
the area.
Trial Court's Oral Findings of Fact and Conclusions of Law
After the CrR 3.6 hearing, the trial court denied Muir's suppression motion and
determined that no unlawful seizure occurred, the consent to search was voluntary, and
Detective Elton testified credibly. 72369-3-1/5
Ms. Muir testified that while she was in the store, she was approached by Officer Elton, who said that he would like for me to come outside so he can talk to me. He didn't—the testimony is not that he ordered her to come outside or otherwise indicated to her to come outside or touched her elbow and guided outside. The evidence is he would like for me to come outside so he can talk to me. Got her outside. Asked her her name. Ms. Muir's testimony is he asked her why don't you have a seat. That's not an order to sit on the curb. It's not a directive. It's more like an invitation. I'm certain that Officer Elton wanted her to sit on the curb and probably didn't want her to leave. But the—it was phrased as a request. Only about ten or 15 minutes elapsed between the time that Officer Elton asked her to go outside and the time that he seized the safe. Officer Elton did not rebut Ms. Muir's testimony that he was asking her information about the drug trade. He probably did. That doesn't make the situation custodial. Officer Elton might have been on a fishing expedition. But there's nothing wrong with a fishing expedition, as long as you get consent. A fishing expedition without consent is illegal. He did ask for consent three times, but it wasn't a badgering attempt. He asked for consent the first time, and Ms. Muir said: You'll have to ask Mr. Mclntyre, because it's not my truck. So Officer Elton testified that he wants consent from everybody in that truck, which is, I think, a prudent thing to do. So he goes and asks Mr. Mclntyre. Mr. Mclntyre says yes. So he comes back and asks the second time, and she says yes. Importantly, when he went—when Officer Elton asked—after Officer Elton asked for consent from Ms. Muir the first time, he, according to Ms. Muir, left to go talk to Mr. Mclntyre and was out of her view, during that period of time. Certainly, it's not a true custodial interrogation or custodial matter when the officer walks off and he's outside your view. I would think of no clearer invitation to walk off. So I find that Ms. Muir was not seized, nor was she in custody at the time that she was asked for consent. I don't think that her consent was the product of coercion or duress. The one area of disagreement is that Officer Elton says that when he asked for her permission to search—to open the safe, his testimony was, I don't know the combination but yes. Her testimony is, I don't have the combination to it, period. Of those two responses, I think it is more likely—well, I think that Officer Elton's version of the conversation rings more true. Ifyou're going to remark that you don't have the combination, the—I think the more rational, conversational way to phrase it was "yes but", as opposed to, I don't have a combination, which is more or less nonresponsive. I find that the greater weight of the evidence is that Officer Elton received a response of, Yes, but I don't have combination to it, and I'll rule that it was consent. Thereafter, Ms. Muir testified that the mood changed. And I have no doubt that it did. But importantly, she also testified that she would have felt free to leave without the truck. I find, by the greater weight of the evidence, that the consent was not a result—well, that she was—I find by the greater weight of the evidence that Ms. -5- 72369-3-1/6
Muir's person was not illegally seized; and that her consent was not the product of illegal seizure, duress, or coercion; and that she did, in fact, consent to the search of the safe. Any questions?
RP (May 28, 2013) at 52-55.
After a bench trial on stipulated facts, Muir was convicted of possession of
methamphetamine with intent to deliver. Muir appeals.
ANALYSIS
CrR 3.6 Findings
Muir argues the trial court's failure to enter written findings after the suppression
hearing requires reversal or remand. We disagree. A court must enter written findings
and conclusions following a suppression hearing. CrR 3.6(b). Those findings and
conclusions are generally considered necessary for appellate review. State v. Head,
136Wn.2d 619, 622-23, 964 P.2d 1187(1998). We may overlook this failure where the
court clearly and comprehensively states the basis of its opinions orally. State v. Cruz,
88 Wn. App. 905, 907-09, 946 P.2d 1229 (1997); State v. Smith. 68 Wn. App. 201, 208,
842 P.2d 494 (1992). Here, the trial court did not file written findings following the
suppression hearing. But the record leaves no doubt that the court's oral ruling clearly
and comprehensively explained the basis for its findings of fact and conclusions of law.
Our review in this case is not hampered by the absence of written findings and
conclusions.
Seizure
Muir contends, "[0]nce Elton asked or invited Muir to sit down and repeatedly
asked to search the truck and the safe, the contact intruded into Muir's sphere of -6- 72369-3-1/7
privacy in violation of Article 1, § 7 of the Washington State Constitution." Appellant's
Br. at 13.
It is a well-recognized rule that a warrantless search is per se unreasonable
under both the Fourth Amendment and article I, section 7 of our state constitution
unless the search falls within one or more specific exceptions to the warrant
requirement. State v. Ross. 141 Wn.2d 304, 312, 4 P.3d 130 (2000).
Consent is one of the narrow exceptions to the Washington State Constitution's
prohibition against warrantless searches. State v. Hendrickson. 129 Wn.2d 61, 71, 917
P.2d 563 (1996). For consent to be valid, the consent must be free and voluntary, the
person consenting must have the authority to consent, and the search must not exceed
the scope of consent. State v. Thompson. 151 Wn.2d 793, 803, 92 P.3d 228 (2004). If
the free and voluntary character of the consent is challenged, the State must prove by
clear and convincing evidence that the individual consented freely and voluntarily, not
as a result of duress or coercion. State v. Smith, 115 Wn.2d 775, 789, 801 P.2d 975
(1990). Clear and convincing evidence exists when the evidence shows the ultimate fact at issue to be highly probable. In re Dependency of K.S.C.. 137 Wn.2d 918, 925,
976P.2d 113(1999).
The voluntariness of a consent to search is a question of fact to be determined
by considering the totality ofthe circumstances surrounding the alleged consent. State v. Shoemaker. 85 Wn.2d 207, 211-12, 533 P.2d 123 (1975). An illegal seizure may
vitiate voluntary consent. See State v. Armenta. 134Wn.2d 1, 16-17, 948 P.2d 1280
(1997). 72369-3-1/8
Whether the police have seized a person is a mixed question of law and fact.
State v. Harrington. 167 Wn.2d 656, 662, 222 P.3d 92 (2009). Challenged findings
entered after a suppression hearing that are supported by substantial evidence are
binding, and where the findings are unchallenged, they are verities on appeal. State v.
O'Neill. 148 Wn.2d 564, 571, 62 P.3d 489 (2003). Muir does not challenge that
substantial evidence supports the trial court's findings of fact. We therefore treat the
court's findings as verities. We review conclusions of law entered by the trial court at a
suppression hearing de novo. State v. Carter. 151 Wn.2d 118, 125, 85 P.3d 887
(2004).
Under the Fourth Amendment, a person is seized if, considering all the
circumstances, a reasonable person would have believed that he was not free to leave.2
Under article I, section 7, a person is seized only when, by means of physical force or a
show of authority, his or her freedom of movement is restrained and a reasonable
person would not have believed he or she is (1) free to leave, given all the
circumstances, State v. Young. 135 Wn.2d 498, 510, 957 P.2d 681 (1998), or (2) free to
otherwise decline an officer's request and terminate the encounter.3 See Florida v.
Bostick, 501 U.S. 429, 436, 111 S. Ct. 2382, 115 L Ed. 2d 389 (1991); State v. Thorn,
129 Wn.2d 347, 352, 917 P.2d 108 (1996). overruled on other grounds by State v.
2 The Fourth Amendment to the United States Constitution states, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . .." U.S. Const, amend. IV.
3 Article I, section 7 of the Washington Constitution states, "No person shall be disturbed in his private affairs, or his home invaded, without authority of law." -8- 72369-3-1/9
O'Neill. 148 Wn.2d 564, 62 P.3d 489 (2003). 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) (citing United
States v. Mendenhall. 446 U.S. 544, 554, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980)).
The Supreme Court discussed a nonexclusive list of police actions likely to result
in a seizure, including "the threatening presence of several officers, the display of a
weapon by an officer, some physical touching of the person of the citizen, or the use of
language or tone of voice indicating that compliance with the officer's request might be
compelled." Mendenhall, 446 U.S. at 554-55. Washington courts often rely on these
factors to determine whether a seizure occurred. E.g.. Harrington. 167 Wn.2d at 666;
Young, 135 Wn.2d at 512 (1998).
Muir argues that she was seized through a progressive intrusion into her privacy
reiving on State v. Soto-Garcia. 68 Wn. App. 20, 841 P.2d 1271 (1992). and Harrington.
167 Wn.2d 656. We disagree.
In Soto-Garcia. a Kelso Police Officer questioned the defendant after seeing him
walk out of an alley at night. The officer pulled his car to the side of the road and Soto-
Garcia voluntarily approached. The officer asked where Soto-Garcia was coming from
and where he was going. Soto-Garcia answered these questions appropriately. The
officer asked for Soto-Garcia's name and he handed over a driver's license. The officer
ran an identification check in Soto-Garcia's presence. The officer asked if he had any
cocaine and Soto-Garcia said he did not. The officer asked to search him. Soto-Garcia
responded, "'Sure, go ahead.'" The officer reached into Soto-Garcia's shirt pocket and
found cocaine. Soto-Garcia. 68 Wn. App. at 22. The court concluded that the -9- 72369-3-1/10
atmosphere created by the officer's "progressive intrusion" was of such a nature that a
reasonable person would not have felt free to leave. Soto-Garcia. 68 Wn. App. at 25.
The court held that when the officer asked Soto-Garcia if he had any cocaine he was
seized. Soto-Garcia. 68 Wn. App. at 25.
In Harrington, the court concluded that an officer's actions amounted to a
progressive intrusion that seized the defendant. Harrington. 167 Wn.2d at 669-70.
There, a police officer made a U-turn, got out of his patrol car, and approached
Harrington at night as he walked down the sidewalk. The officer questioned Harrington
about his activities and travel. A second officer suddenly arrived on the scene in a
patrol car and stood seven or eight feet from Harrington. The first officer requested that
Harrington remove his hands from his pockets. He then asked for consent to frisk. The
court noted, "Requesting to frisk is inconsistent with a mere social contact." Harrington.
167 Wn.2d at 669. The court held that when the officer requested to frisk Harrington,
"the officers' series of actions matured into a progressive intrusion substantial enough to
seize Harrington. A reasonable person would not have felt free to leave due to the
officers' display of authority." Harrington. 167 Wn.2d at 669-70.
But not every encounter between an officer and a citizen creates a seizure.
Armenta. 134 Wn.2d at 10. An officer may engage a person in conversation in a public
place and ask for identification without seizing that person. Armenta 134 Wn.2d at 11.
A police officer does not seize a person merely by approaching him in a public place
and asking questions as long as the person need not answer and can walk away.
State v. Thomas. 91 Wn. App. 195, 200, 955 P.2d 420 (1998). For example, a
defendant was not seized when an officer approached him in a parking lot and asked, -10- 72369-3-1/11
"Where is the pipe?" Thorn. 129 Wn.2d at 354. Here, Detective Elton's actions did not
constitute a "progressive intrusion" into Muir's privacy. Without issuing any commands
or attempting to control Muir, Detective Elton asked Muir for permission to perform a
routine search of a truck Muir's boyfriend owned. Indeed, she initially told Detective
Elton to ask Mclntyre for consent. Muir later agreed to allow the search, but she was
equally free to decline and walk away.
In State v. Smith. 154 Wn. App. 695, 226 P.3d 195 (2010), the court found no
seizure occurred where multiple armed officers were present, an officer asked the
defendant for his name, performed a warrants check, asked him for ID, asked for
another form of ID, requested consent to search the defendant's wallet, searched the
wallet, and found methamphetamine. The Smith court distinguished Soto-Garcia on
grounds that the officer asked the defendant a direct question about drug possession.
The Smith court distinguished Harrington on the grounds that the officer there asked the
defendant to remove his hands from his pockets to control his actions. Smith. 154 Wn.
App. at 701-02. Further, in Harrington and Soto-Garcia. the progressive intrusion into
the defendant's privacy lead to a request to frisk—an action that is inconsistent with
mere social contact.
As in Smith. Detective Elton made no attempt to control Muir's actions, asked her
no direct questions about whether she possessed drugs, and made no request to
search her.
-11- 72369-3-1/12
Detective Elton left Muir unattended and out of sight on the sidewalk while he
spoke to Mclntyre.4 As the trial court recognized, "it's not a true custodial interrogation
or custodial matter when the officer walks off and he's outside your view. I would think
of no clearer invitation to walk off." RP at 54. Furthermore, none of the factors often
associated with a seizure were present here. See Young, 135 Wn.2d at 512 (citing
Mendenhall, 446 U.S. at 554-55). There was no threatening presence of multiple
officers, no display of weapons, no physical touching, and no language or tone of voice
to indicate compliance might be compelled. And Muir's contact with Detective Elton
before he opened the safe lasted only 10 to 15 minutes.
Muir maintains that when Detective Elton searched the safe, her personal
property was retained, seizing her and requiring Detective Elton to provide Miranda
warnings. See Armenta, 134 Wn.2d at 6, 12 (concluding that a seizure occurred when
officer placed defendant's money in his patrol car); Thomas, 91 Wn. App. at 200-01
(concluding that a seizure occurred when officer took defendant's identification with him
to perform a warrants check); Appellant's Br. at 7-8. But Detective Elton never removed
Muir's property from her presence. After obtaining her consent, he searched her safe
as she stood nearby. Muir was free to decline his request as established by the record
facts here and her statement that she felt free to leave the scene without the truck.
As the State argues, the only question Detective Elton asked directly implicating
Muir or her property before her arrest was the request to search the safe. Resp't's Br.
4 The record shows that Muir testified that when Detective Elton left to talk to Mclntyre, "[Elton] was out of my view, and I didn't know where he had gone." She also testified that when he asked for consent the second time, "[Elton] had left out of my view. . . ." RP (May 28, 2013) at 33. -12- 72369-3-1/13
at 20. Detective Elton's actions, viewed objectively and in their entirety, did not
constitute a show of authority amounting to a seizure before Muir consented to the
search of her safe.
Finally, we are not persuaded by Muir's argument that Detective Elton controlled
her actions and her purse after she consented to its search.5 The search occurred after
she was formally arrested and read Miranda rights.
Because substantial evidence supports the trial court's factual findings and the
findings support the court's conclusion that no invalid seizure occurred and Muir's
consent to search the safe was free and voluntary, we affirm the judgment and
sentence.
WE CONCUR:
Off^**JtQ
5 The undisputed evidence shows no officers directed her to place the purse on the ground. The first time officers touched the purse occurred after Muir was arrested during a search incident to that arrest. -13-