362 P.3d 313
Wash. Ct. App.2015Background
- Cherry was stopped and arrested for driving with a suspended license; officers read Miranda warnings and he initially invoked his right to remain silent.
- Officers asked about passengers to determine safe removal of the vehicle, then requested consent to search the car; Cherry first refused, then consented and later admitted possible meth use and ownership of a meth pipe found in a backpack.
- A K-9 was requested; officers informed Cherry the car might be impounded for security; officers also told him he could refuse or revoke consent.
- Cherry resisted a jail strip search and apparently swallowed a pouch; he was charged with unlawful possession of a controlled substance and tampering with evidence.
- Cherry moved to suppress (CrR 3.6) the car evidence as coerced and challenged (CrR 3.5) admission of post-arrest statements; separate judges heard the motions and denied suppression and exclusion.
- At trial a jury convicted Cherry; on appeal he challenged (inter alia) the factual findings, admissibility of statements and search, voluntariness of consent, successor judge signing findings, requests for new counsel, and imposition of legal financial obligations; the Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Cherry) | Held |
|---|---|---|---|
| Accuracy of CrR 3.5/3.6 findings | Findings are supported by record and unchallenged findings are verities | Certain findings omitted/context omitted and included irrelevant facts | Any inaccuracies or irrelevant inclusions were harmless; most challenged facts were supported or immaterial |
| Admissibility of post-arrest statements (Fifth/Miranda) | Statements were voluntary, non-testimonial, and not elicited by interrogation after invocation | Statements (including consent) were elicited after invocation of right to remain silent and thus inadmissible | Questions about passengers and request for consent did not violate Miranda; statements were not the product of unlawful interrogation and were admissible |
| Legality/voluntariness of consent to search (Fourth) | Consent was given voluntarily after Miranda warnings and advisement of right to refuse; officers did not coerce | Consent was coerced by threat of impoundment and officer promises | Consent was voluntary; telling suspect car might be impounded or requesting towed did not render consent involuntary |
| Successor judge signing CrR 3.6 findings | Parties agreed and defense counsel waived objection to Judge Laurie signing Judge Dixon's findings | Findings invalid because successor judge signed findings based on predecessor's hearing | No error; waiver and parties' agreement made signature permissible; any error harmless given oral ruling on record |
| Requests for new counsel | Counsel competently represented defendant; court adequately inquired; no complete breakdown | Defendant alleged irreconcilable differences, inadequate communication, counsel bias/inaction | Denial of new counsel not an abuse of discretion; record did not show irreconcilable conflict or identifiable misconduct |
| Imposition of legal financial obligations (LFOs) | LFOs imposed with finding defendant had ability to pay; defendant failed to object below | Court misunderstood defendant's inability to pay; LFOs improper | Claim forfeited by failure to object at sentencing; court declined to reach unpreserved argument |
Key Cases Cited
- Miranda v. Arizona, 384 U.S. 436 (1966) (establishes custodial warning requirements and privilege against self-incrimination)
- Michigan v. Mosley, 423 U.S. 96 (1975) (post-invocation questioning admissibility depends on whether right to cut off questioning was scrupulously honored)
- Rhode Island v. Innis, 446 U.S. 291 (1980) (Miranda interrogation includes words or actions reasonably likely to elicit incriminating response)
- United States v. Hidalgo, 7 F.3d 1566 (11th Cir. 1993) (consent to search is not a testimonial incriminating statement for Fifth Amendment purposes)
- State v. O'Neill, 148 Wn.2d 564 (2003) (consent voluntariness factors include Miranda warnings, education, and advisal of right to refuse)
- Bumper v. North Carolina, 391 U.S. 543 (1968) (consent ineffective when based on assertion of lawful authority to search)
- State v. Lyons, 76 Wn.2d 343 (1969) (bowing to events is not the same as coercion)