State Of Washington v. Matthew Christopher CherryState Of Washington v. Matthew Christopher Cherry
Nancy P. Collins (of Washington Appellate Project), for appellant.
Tina Robinson, Prosecuting Attorney,
¶1 LEE, J. — 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) thе 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
¶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 In the unpublished portion of our opinion, we address the remainder of Cherry‘s arguments and hold that (4) any error in the successor judge‘s signing of the
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 Hearing
¶5 Judge Steven Dixon presided over the
¶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 сonsent, 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.
¶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 stаtement 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
¶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
¶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
B. CHALLENGED FINDINGS OF FACT
¶21 We review challenged findings of fact tо 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.
¶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 sеarch 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 seаrching 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.
¶24 Finally, Cherry challenges finding of fact X on the ground that it refers to information that was not offered at the
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
2.
¶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 Forbrаgd 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
¶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
C. RIGHT TO REMAIN SILENT
¶30 Cherry asserts that his post-arrest statеments, including his consent to search, were inadmissible because they were obtained in violation of his constitutional right to remain silent.
¶31 The
¶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 pаssengers 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
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 consеnt 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
¶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
¶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 incriminаting 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
¶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, аs 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
¶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 сonsent 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 obtаining 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
¶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
MAXA and MELNICK, JJ., concur.
Notes
CP at 75.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 threatеned the defendant that the vehicle would be towed if he did not give consent to search the vehicle.