State Of Washington v. Matthew Christopher Cherry

362 P.3d 313, 191 Wash. App. 456

• Court: Court of Appeals of Washington
• Decided: November 24, 2015
• Docket: 45396-7-II
• Status: Published

Opinion

Lee, J.

¶1 — Matthew Christopher Cherry appeals his convictions and sentence for unlawful possession of a controlled substance and tampering with evidence, arguing that (1) the trial court’s findings of fact supporting the trial court’s suppression rulings are inaccurate; (2) the trial court erred in admitting his post-arrest statements and the methamphetamine pipe found in his car; (3) the trial court erred in finding his consent to a car search was freely and voluntarily given; (4) the trial judge lacked authority to sign the CrR 3.6 findings; (5) the trial court erred in failing to grant his requests for a new attorney; and (6) the trial court erred in imposing discretionary legal financial obligations.

¶2 In the published portion of our opinion, we hold that (1) any inaccuracies in the challenged findings were harmless; (2) Cherry’s post-arrest statements, including his consent to the search of his car, did not violate his right to remain silent; and (3) Cherry’s consent to the search was voluntary. In the unpublished portion of our opinion, we address the remainder of Cherry’s arguments and hold that (4) any error in the successor judge’s signing of the CrR 3.6 findings was harmless; (5) the record does not show that Cherry had a conflict with his attorney sufficient to warrant the appointment of new counsel; and (6) because Cherry challenges his legal financial obligations for the first time on appeal, we decline to consider the challenge. Accordingly, we affirm Cherry’s convictions and sentence.

FACTS

¶3 After Cherry was arrested for driving with a suspended license, he consented to a search of his car. A pipe containing methamphetamine residue was found. When Cherry was booked into jail, he resisted a strip search and apparently swallowed the contents of a small pouch after it was seen between his legs. The State charged Cherry by amended information with unlawful possession of a controlled substance and tampering with evidence.

¶4 Cherry filed a CrR 3.6 motion to suppress the evidence found in his car, arguing that the officers threatened to have his car impounded if he did not consent to its search and that his consent was coerced. The trial court also conducted a CrR 3.5 hearing in which Cherry challenged the admission of his post-arrest statements.

CrR 3.6 Hearing

¶5 Judge Steven Dixon presided over the CrR 3.6 hearing. During the CrR 3.6 hearing, Bremerton Police Officer Steven Forbragd, Officer Dale Roessel, and Cherry testified. Forbragd testified that he was on patrol when he saw Cherry driving down the street. Forbragd also testified that he had previously engaged in “countless” contacts with Cherry, including one at a hotel two days earlier, and that he signaled for Cherry to stop because he knew that Cherry’s driver’s license was suspended. Verbatim Report of Proceedings (VRP) (July 31, 2013) at 5. After Cherry stopped, Forbragd arrested him for driving with a suspended license, put him in the patrol car, and advised him of his Miranda 1 rights. Cherry stated that he did not want to make any statements.

¶6 When Forbragd asked Cherry to confirm who was in the car, Cherry identified his two passengers. When asked whether either passenger could take the car, Cherry responded that neither had a license and that he did not know anyone who did. Forbragd then informed Cherry that his car would be impounded for security purposes.

¶7 After the passengers left the scene, Forbragd asked Cherry if he would consent to a search of his car. Forbragd told Cherry that he did not have to consent, and Cherry replied that he did not want to consent. Cherry added that there were no drugs in the car because he had used them earlier, and he laughed.

¶8 Based on that comment and his knowledge of Cherry’s drug history, Forbragd called for an officer to bring a drug dog to the scene and so informed Cherry. While they were waiting for Roessel and his K-9 unit to arrive, Cherry told Forbragd that he could search the car. Forbragd asked Cherry to confirm his consent and told him that he could revoke it at any time. Forbragd denied telling Cherry that he would not impound the car if Cherry consented to its search.

¶9 Roessel arrived and confirmed with Cherry that he was consenting to a search of his car. Roessel testified that he informed Cherry that he did not have to consent and that he could revoke consent at any time. Roessel also told Cherry that his consent to the search would not influence the decision to impound his car.

¶10 During the search, Cherry told Forbragd that there might be a methamphetamine pipe in the car. When the search revealed a methamphetamine pipe in a backpack, Cherry admitted ownership of both. Forbragd testified that he ultimately decided against impounding the car because of Cherry’s cooperation and because the car was not parked illegally.

¶11 Cherry testified that after his arrest, Forbragd told him that if he was truthful, his car would not be impounded. Cherry understood that to mean that if he was completely cooperative, his car would not be towed. Cherry denied that Forbragd told him he could refuse to consent to the search and testified that he consented only after Forbragd threatened impoundment. Cherry added that two days earlier, he had slammed his hotel door in Forbragd’s face because the officer was invading his privacy. On cross-examination, Cherry admitted that he had multiple prior convictions for theft and one for making a false statement to a public officer. He estimated that he had 30 prior contacts with Bremerton police.

¶12 In his oral ruling, Judge Steven Dixon resolved the conflict between the officers’ and Cherry’s testimony in the officers’ favor. Judge Dixon found no basis to believe that the officers threatened to impound the vehicle unless Cherry consented to its search. Judge Dixon further found that the officers twice told Cherry he did not have to consent and observed that Cherry’s prior extensive contact with Bremerton police and his behavior during the arrest belied his testimony that he felt threatened. Judge Dixon noted that even if the officers told Cherry that they would not impound his car if he was truthful, this statement did not require him to be completely cooperative. Furthermore, even if the officers did threaten to impound the car if Cherry did not consent, Cherry’s “criminal sophistication” was such that the threat was not coercive. VRP (July 31, 2013) at 66. Judge Dixon concluded that Cherry’s consent to search was freely and voluntarily given. Judge Dixon denied the motion to suppress and requested that the parties submit written findings of fact and conclusions of law.

CrR 3.5 Hearing

¶13 Judge Anna Laurie presided over the CrR 3.5 hearing. Officer Forbragd again testified about Cherry’s stop and arrest, and Cherry’s statement that he did not want to make any comments after being informed of his Miranda rights. Forbragd added that after dealing with Cherry’s passengers, he asked Cherry for consent to search his car. Cherry declined to consent and said that there were no drugs in the car because he had used them earlier.

¶14 Forbragd testified further that after Cherry changed his mind and consented to the search, he again spoke of smoking methamphetamine earlier that day and said that there might be a methamphetamine pipe in the car. Forbragd then asked Cherry if he was willing to talk, and Cherry said that he was. Forbragd testified that he never made any promises or threats to induce Cherry’s statements and that Cherry never requested an attorney.

¶15 Cherry testified that the officers threatened to tow his car if he did not talk to them, that he never admitted using drugs earlier in the day, and that he requested an attorney when he received the Miranda warnings. On cross-examination, he acknowledged that he had 13 prior convictions for crimes of dishonesty.

¶16 In her oral ruling, Judge Laurie stated that “consistent with but independent of Judge Dixon’s rulings ... I also find the defendant’s belief that there was [a] threat causing him duress to be less than credible.” 1 VRP at 60. Judge Laurie found that Cherry volunteered the statements about the absence of drugs in the car and about using methamphetamine earlier in the day and concluded that all of Cherry’s statements were admissible. 2

Trial and Sentencing

¶17 At trial, a jury found Cherry guilty as charged. The State requested consecutive sentences totaling 18 months’ incarceration, and defense counsel requested a low-end sentence of 6 months and concurrent sentencing. The trial court imposed 9 months on the possession conviction and a concurrent sentence of 364 days on the tampering conviction, with 184 days suspended.

¶18 Cherry appeals.

ANALYSIS

A. Standard of Review

¶19 We review a trial court’s ruling on a motion to suppress evidence to determine whether substantial evidence supports the trial court’s findings of fact and whether those findings, in turn, support the trial court’s conclusions of law. State v. Russell, 180 Wn.2d 860, 866, 330 P.3d 151 (2014). Unchallenged findings of fact are verities on appeal. State v. Bonds, 174 Wn. App. 553, 562, 299 P.3d 663, review denied, 178 Wn.2d 1011 (2013). We review a trial court’s legal conclusions de novo. State v. Roden, 179 Wn.2d 893, 898, 321 P.3d 1183 (2014).

¶20 Most of the trial court’s written findings of fact are unchallenged and are thus verities. Cherry challenges the accuracy of a few CrR 3.5 and 3.6 findings, and we address those challenges before proceeding to a de novo review of the trial court’s legal conclusions.

B. Challenged Findings of Fact

¶21 We review challenged findings of fact to determine whether they are supported by substantial evidence, which is evidence sufficient to persuade a fair-minded, rational person of their truth. State v. Levy, 156 Wn.2d 709, 733, 132 P.3d 1076 (2006). However, most of Cherry’s challenges address omissions in the findings rather than their factual support. 3

1. CrR 3.6 Findings

¶22 Cherry challenges finding of fact IV, which states as follows:

That the defendant had contact with [Officer Forbragd] a couple of days prior and in that contact, the Officer had asked to come in to his hotel room and search for drugs, which the defendant refused and slammed the door shut on the Officers.

Clerk’s Papers (CP) at 78. Cherry faults this finding because it does not mention his comments after he invoked his right to remain silent and before he consented to the search. But this finding describes a prior incident between Cherry and Forbragd. Other unchallenged findings describe the discussion between Cherry and Forbragd following his arrest. This challenge fails.

¶23 Cherry next challenges finding of fact VII, which states:

That while Officer Roessel was searching the defendant’s vehicle, Officer Forbragd stayed inside the patrol car with the defendant in a place where the defendant could watch the search in case the defendant chose to revoke his consent. The defendant never revoked his consent and gave further consent to search the trunk of the vehicle.

CP at 78. Cherry argues that this finding neglects to mention the coercive atmosphere and Cherry’s desire to avoid impound. Cherry does not challenge the facts included in this finding. Therefore, in the absence of any showing that this finding is not supported by substantial evidence, Cherry’s challenge fails.

¶24 Finally, Cherry challenges finding of fact X on the ground that it refers to information that was not offered at the CrR 3.6 hearing. This finding states as follows:

That the defendant was transported to the jail where the defendant was booked for several counts. Officer Forbragd later tested the pipe which did test positive for methampheta mine. The defendant has 53 prior misdemeanor convictions and 4 felony convictions.

CP at 79.

¶25 There was no testimony at the hearing about the number of offenses for which Cherry was booked, the testing of the pipe, or the fact that Cherry has 53 prior misdemeanors and 4 prior felonies. However, Cherry did testify during the CrR 3.6 hearing that he has 30 prior misdemeanors and 5 prior felonies. The number of Cherry’s current or prior convictions, as well as the results of the field test, were irrelevant to the conclusion that his consent to search was voluntary; thus, any error in this finding is harmless.

2. CrR 3.5 Findings

¶26 Cherry challenges two findings for failing to describe the questions that preceded his consent to search. They are as follows:

IV.

That while Officer Forbragd was waiting for Officer Roessel to respond, the defendant changed his mind and told the Officer that he would give his permission for the Officer to search the vehicle. He again indicated that there was nothing left in the vehicle. This was not in response to another request by the Officer to search the vehicle.

V.

That Officer Roessel arrived on the scene and spoke with the defendant briefly to confirm that the defendant was giving his permission to search the vehicle. The defendant stated that he did give his consent for the search. The defendant was specifically told that he could refuse consent to search the vehicle.

CP at 74.

¶27 Here again, while not in these specific findings, other unchallenged findings include the exchanges between Officer Forbragd and Cherry that preceded his consent. Therefore, we reject this challenge.

¶28 Cherry also challenges finding of fact V and finding of fact VIII, complaining about the inclusion of Officer Roessel’s statements before, during, and after the search even though the officer did not testify at the CrR 3.5 hearing. 4 Roessel did not testify during the 3.5 hearing, and evidence of his statements to Cherry and the results of the car search was not admitted at that hearing. However, the issue at the 3.5 hearing was the voluntariness of Cherry’s statements to Forbragd. Forbragd testified that he never made any threats or promises to induce Cherry’s statements. The trial court’s conclusion that Cherry’s statements were admissible did not depend on Roessel’s conduct or the search. Again, any error in this regard is harmless.

¶29 Having rejected Cherry’s challenges to the findings of fact, we turn to a de novo review of the trial court’s conclusions that Cherry’s post-arrest statements were admissible and that his consent to search was voluntary.

C. Right to Remain Silent

¶30 Cherry asserts that his post-arrest statements, including his consent to search, were inadmissible because they were obtained in violation of his constitutional right to remain silent. Wash. Const, art. I, § 9; U.S. Const, amend. V. 5 We disagree.

¶31 The Fifth Amendment provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V; Miranda, 384 U.S. at 439. In Miranda, the United States Supreme Court adopted a set of measures designed to protect a suspect’s Fifth Amendment right from the “inherently compelling pressures” of custodial interrogation. 384 U.S. at 467. These safeguards include a warning that the suspect has the right to remain silent. Maryland v. Shatzer, 559 U.S. 98, 104, 130 S. Ct. 1213, 175 L. Ed. 2d 1045 (2010).

¶32 The admissibility of statements obtained after a person in custody has decided to remain silent depends on whether his right to cut off questioning was scrupulously honored. Michigan v. Mosley, 423 U.S. 96, 104, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975) (quoting Miranda, 384 U.S. at 474). The term “interrogation” under Miranda refers not only to express questioning by police but to words or actions that are reasonably likely to elicit an incriminating response. Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980).

1. Questions About Passengers

¶33 Cherry complains that after he received Miranda warnings and invoked his right to remain silent, Officer Forbragd violated that right by asking questions about his passengers. But, as the State points out, the questions about Cherry’s passengers were not intended to and did not elicit incriminating information. Rather, the questions were intended to determine whether Cherry’s car could be safely removed from the scene. See State v. Wheeler, 108 Wn.2d 230, 238, 737 P.2d 1005 (1987) (asking routine questions during booking does not constitute unlawful interrogation because such questions rarely elicit an incriminating response). The fact that there was no testimony about these preliminary questions during the CrR 3.5 hearing and no findings of fact addressing them supports our conclusion that they did not implicate Cherry’s right to remain silent. See State v. Williams, 137 Wn.2d 746, 751, 975 P.2d 963 (1999) (purpose of CrR 3.5 hearing is to determine voluntariness of custodial statements).

2. Request for Consent to Search

¶34 Cherry next argues that the officers were not permitted to ask for consent to search his car after he invoked his right to remain silent. We disagree.

¶35 The State argues that an officer does not need to give Miranda warnings before asking for consent to search, and relies on cases holding that Miranda warnings are not required before asking for consent to search. See, e.g., State v. Silvernail, 25 Wn. App. 185, 191, 605 P.2d 1279 (no Miranda warnings needed before asking for keys after consent to search given because request “was not designed to elicit a testimonial response and Silvernail’s unexpected voluntary admissions were not the product of police questioning”), review denied, 93 Wn.2d 1021, cert. denied, 449 U.S. 843 (1980); State v. Rodriguez, 20 Wn. App. 876, 880, 582 P.2d 904 (1978) (“Miranda warnings are not a prerequisite to a voluntary consent.... The fact that a consent to search might lead to incriminating evidence does not make it testimonial or communicative in the Fifth Amendment sense.”). However, the cases relied on by the State do not address whether an officer can ask for consent to search after a defendant has invoked Miranda and his privilege against self-incrimination. No Washington case has addressed this specific issue.

¶36 Courts in other jurisdictions have held that once a defendant invokes the right to remain silent, a subsequent request for consent to search does not violate the defendant’s Fifth Amendment rights. In United States v. Hidalgo, the court held that consent to search requested and obtained after defendant invoked his right to remain silent did not violate his Fifth Amendment rights because the Fifth Amendment protects only against compelling incriminating evidence of a testimonial nature and not against the compelled production of physical evidence. 7 F.3d 1566, 1568 (11th Cir. 1993). In so holding, the Hidalgo court rejected the premise that a consent to search is an incriminating statement and stated that “‘[e]very federal circuit court which has addressed the Miranda issue presented here has reached the conclusion that a consent to search is not an incriminating statement.’” Hidalgo, 7 F.3d at 1568 (alteration in original) (quoting United States v. Rodriguez-Garcia, 983 F.2d 1563, 1568 (10th Cir. 1993)); see also Garcia v. State, 979 So. 2d 1189, 1194 (Fla. Dist. Ct. App. 2008) (right to silence protects only testimonial or communicative acts of suspect, and consent to search is neither), review denied, 11 So. 3d 355 (2009); State v. Crannell, 170 Vt. 387, 392-93, 750 A.2d 1002 (2000) (request for consent to search does not violate Fifth Amendment rights, including right to remain silent), overruled on other grounds by State v. Brillon, 183 Vt. 475, 955 A.2d 1108 (2008), rev’d, 556 U.S. 81, 129 S. Ct. 1283, 173 L. Ed. 2d 231 (2009); State v. Turner, 136 Wis. 2d 333, 350-51, 401 N.W.2d 827 (1987) (requesting consent to search does not violate defendant’s Fifth Amendment right to remain silent); State v. Baumeister, 80 Or. App. 626, 628-29, 723 P.2d 1049 (asking for consent to search after defendant invoked right to remain silent does not violate Fifth Amendment), review denied, 302 Or. 299 (1986). 6

¶37 The trial court found that Officer Forbragd informed Cherry of his Miranda rights before requesting Cherry’s consent to search the car. The request for consent to search was not designed to elicit testimonial evidence and Cherry’s consent was not an incriminating statement. Therefore, law enforcement did not violate Cherry’s constitutional right to remain silent by requesting consent to search his car after Cherry had invoked that right.

3. Statements About Drugs

¶38 The only statements at issue during the CrR 3.5 hearing were Cherry’s explanation, after initially declining to consent to a search, that there were no drugs in the car because he had used them earlier and his subsequent statements during the search (after Cherry consented to a search) that he had smoked methamphetamine earlier and that there might be a pipe in his car. We hold that these statements were not made in response to any questioning in violation of Cherry’s right to remain silent.

¶39 The trial court found:

That... Officer Forbragd went back to the vehicle and asked [Cherry] for consent to search the vehicle. [Cherry] responded that he didn’t want them to search his vehicle and that he had smoked all the drugs earlier in the day. [Cherry] then laughed.

That [Cherry] made the comment, not in response to questioning, that there may be a pipe in the vehicle. [Cherry] stated that the pipe did not belong to him. Officer Forbragd asked [Cherry] if he wished to talk to the Officer. [Cherry] stated that everything he says usually gets used against him but that he would like to talk to the Officer.

CP at 74 (Findings of Fact III, VII). These unchallenged findings are verities on appeal. Bonds, 174 Wn. App. at 563.

¶40 Cherry’s statements were not made in response to any questioning likely to elicit an incriminating response. Even if Cherry’s statements were prompted by watching the police search his car, as Cherry now argues, they were not prompted by unlawful interrogation. We see no violation of Cherry’s right to remain silent. Thus, Cherry’s statements were properly admitted.

D. Consent to Search

¶41 Cherry argues that his consent to search was not voluntary, and therefore, the search violated the Fourth Amendment and the evidence found during the search is inadmissible. We disagree.

¶42 Consent to search is an exception to the warrant requirement. State v. Thompson, 151 Wn.2d 793, 803, 92 P.3d 228 (2004). To show valid consent, the State must prove that the consent was freely and voluntarily given. State v. O’Neill, 148 Wn.2d 564, 588, 62 P.3d 489 (2003). Whether consent was voluntary or the result of duress or coercion, express or implied, is a question of fact. O’Neill, 148 Wn.2d at 588. Factors used to determine whether a person has voluntarily consented include whether Miranda warnings were given, the individual’s education and intelligence, and whether he was advised of the right to consent. O’Neill, 148 Wn.2d at 588.

¶43 The trial court found that Officer Forbragd read Cherry his Miranda rights before asking for consent to search his car, and that the officers informed Cherry that he had the right to refuse consent. The trial court also found that during his previous encounter with Forbragd at his hotel, Cherry had refused a search. In addition, the trial court found that the officers never threatened to tow the car if Cherry did not consent to its search. These unchallenged findings support the trial court’s conclusion that the consent to search was voluntary.

¶44 Where officers tell a defendant they will impound his car and request a search warrant if he does not consent to its search, they are not being coercive. State v. Smith, 115 Wn.2d 775, 790, 801 P.2d 975 (1990). Furthermore, this is not a case where the officers misrepresented their authority in an attempt to obtain consent or stated that they would search the car with or without consent. See Bumper v. North Carolina, 391 U.S. 543, 549, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968) (a search conducted in reliance on a warrant cannot later be justified on the basis of consent if the warrant was invalid); State v. Apodaca, 67 Wn. App. 736, 739-40, 839 P.2d 352 (1992) (threats to obtain a search warrant may invalidate subsequent consent if grounds for obtaining warrant did not exist), overruled on other grounds by State v. Mierz, 127 Wn.2d 460, 901 P.2d 286 (1995). As our Supreme Court stated in upholding another consensual search, “Bowing to events, even if one is not happy with them, is not the same thing as being coerced.” State v. Lyons, 76 Wn.2d 343, 346-47, 458 P.2d 30 (1969).

¶45 The trial court did not err in concluding that Cherry voluntarily consented to the search of his car. Consequently, we reject Cherry’s argument that the fruits of that search, including the pipe and Cherry’s admission of ownership, should have been suppressed.

¶46 We hold that the trial court did not violate Cherry’s Fifth Amendment rights by admitting Cherry’s statements made after he invoked his right to remain silent. We further hold that a request for consent to search the car after Cherry had invoked his Miranda rights did not violate Cherry’s right to remain silent and that Cherry voluntarily consented to the search of his car. We also hold that Cherry’s remaining arguments, addressed in the unpublished portion of this opinion, fail.

¶47 Accordingly, we affirm Cherry’s convictions.

¶48 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record in accordance with RCW 2.06.040, it is so ordered.

Maxa and Melnick, JJ., concur.

Reconsideration denied January 5, 2016.

Review denied at 185 Wn.2d 1031 (2016).

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2 The defense did not object to the admission of statements that Cherry made during the jail booking process.

3 Cherry also assigns error to two conclusions of law on the basis that they are actually findings of fact that are unsupported by substantial evidence. We do not address these assignments of error because they are not supported by argument. RAP 10.3(a)(6); State v. Goodman, 150 Wn.2d 774, 782, 83 P.3d 410 (2004).

4 Finding of fact VIII provides as follows:

That Officer Roessel search [sic] the trunk and located a backpack with a photograph. The defendant admitted that the photograph was of his daughter. A methamphetamine pipe was also located in the same backpack. At first the defendant claimed that the backpack was not his but then admitted the backpack and the methamphetamine pipe both belonged to him. The Officers on scene determined that the vehicle was far enough off of the road way to leave at the scene and canceled the tow. The Officers never threatened the defendant that the vehicle would be towed if he did not give consent to search the vehicle.

CP at 75.

5 The Washington Supreme Court has held that article I, section 9 is equivalent to the Fifth Amendment and should receive the same interpretation. State v. Templeton, 148 Wn.2d 193, 207-08, 59 P.3d 632 (2002). Consequently, we decline Cherry’s invitation to apply a Gimwall analysis to determine whether the state constitution offers greater protection in this regard. See State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986) (setting forth factors to determine whether state constitution provides broader protection than federal constitution).

6 Other cases have applied the same rule when a defendant has requested an attorney. See United States v. Bustamante, 493 F.3d 879, 892 (7th Cir. 2007) (though interrogation must cease after a defendant in custody invokes his right to counsel, a request to search is not likely to elicit an incriminating response and is not interrogation; “Miranda does not protect a defendant who is in custody from a police officer’s request to search his vehicle”), cert. denied, 552 U.S. 1237 (2008); State v. Hatfield, 246 Or. App. 736, 739, 743-44, 268 P.3d 654 (2011) (officer was not foreclosed from asking for consent to search after defendant invoked his right to counsel), review denied, 352 Or. 341 (2012); State v. Baldwin, 290 S.W.3d 139, 144 (Mo. Ct. App. 2009) (Missouri courts have found that requesting consent to search after defendant requests counsel does not constitute interrogation because consent is not incriminating response).