State Of Washington, Respondent V. Kelly Stultz, Appellant (Majority)

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COURT FILED OF APPEALS DIVISION II 2015 APR 2 f Alts 9: 02 IN THE COURT OF APPEALS OF THE STATE OF WASH. ING3 ON WON BY DIVISION II No. 45225 -1 - II STATE OF WASHINGTON, Respondent, v. UNPUBLISHED OPINION KELLY KATHLEEN STULTZ, Appellant. SUTTON, J. — Kelly Kathleen Stultz appeals her conviction for possession of a controlled substance ( methamphetamine) after a stipulated facts trial. She argues that her conviction must be reversed because the trial court erred in admitting physical evidence obtained pursuant to an unlawful Terry' stop. Holding that the Terry stop was lawful, that Stultz validly consented to the search of her car, and that her consent was not testimonial, we affirm. FACTS I. Stultz' s Arrest and Search Of Her Car Bainbridge Island Officers Victor Cienega and Aimee LaClaire responded to a report of a person " passed out" at 58 ( Amended in a car Finding of in the parking lot Fact ( FF) 1). of an apartment complex. Clerk' s Papers ( CP) The person in the car was Stultz and she later told LaClaire that she had been at the complex to visit her friend, a person Cienega was familiar with due to " a lot of narcotics activity" in relation to the apartment number that Stultz named. Verbatim Report 1 Terry of v. Proceedings (VRP) ( May 7, 2013) at 47. The officers were dispatched to conduct a Ohio, 392 U. S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 ( 1968). No. 45225 -1 - II welfare check at 10: 00 PM; the car had been in its location since 3: 00 PM with several people coming and going from the car to the apartment. When the two officers approached the car, Stultz was reclined in the driver' s seat with a coat covering her from her knees to her face. LaClaire knocked on the passenger window for 20 to 30 seconds before Stultz awoke and opened the passenger door. LaClaire then asked for identification, which Stultz provided. As Stultz reached for the passenger door to open it for LaClaire, Stultz' s coat slid up on her legs and Cienega, standing at the driver' s side window with his flashlight shining on Stultz, saw what he believed to be a glass methamphetamine pipe between Stultz' s legs. About an inch of the pipe was sticking out with the bowl wrapped in a paper towel and Cienega could see white residue in the Cienega, who recently had taken a training course with a regional narcotics pipe. task force, believed that the pipe was used to smoke methamphetamines. Through the closed window, Cienega told Stultz that he saw the pipe and that she needed to get out of the car. already [ saw] the Stultz tried to cover the pipe with her hands, but Cienega told her that he pipe" and told her again to exit the car. VRP at 40. Because he saw the pipe, felt " uncomfortable," and wanted to confirm his belief as to what the object was, Cienega placed Stultz in handcuffs immediately after she stood up out of the car. VRP at 41, 42. Cienega did not tell Stultz that she was under arrest. As he placed her in handcuffs, Cienega saw an open soft cloth pouch laying on the floorboard of the car. Inside the pouch, Cienega observed five baggies of the type typically used to store narcotics. One of the baggies contained a substance that Cienega believed to be methamphetamine based on his training and experience. 2 No. 45225 -1 - II Cienega then asked Stultz about the pipe, told her that he saw the baggies, and asked whether any the drugs more search substance was methamphetamine; the or drug 2 vehicle. " paraphernalia VRP at 45. in the Stultz car. said that it was. Cienega asked if she had Stultz replied " no" and said the officers " could Cienega removed the pipe and pouch from the front seat and floorboard, and searched the rest of the car. After placing the pouch with the baggies and the pipe on the car roof, Cienega told Stultz that she was under arrest and read the Miranda3 warning to her. LaClaire ran Stultz' s name and found outstanding warrants for Stultz' s arrest. Stultz admitted to LaClaire that she had ingested methamphetamine. II. CrR 3. 5 & CrR 3. 6 Hearing; Stipulated Facts Trial The State charged Stultz with one count of possession of a controlled substance methamphetamine). Cienega after Stultz moved to suppress the pipe, pouch, and baggies and her statements to he handcuffed her. At the first CrR 3. 5 and CrR 3. 6 hearing, the trial court suppressed Stultz' s statements to Cienega that she did not have any other drugs in the car and that the officers could search the car because these statements were obtained in violation of Miranda. The trial court also suppressed the physical evidence because Stultz' s consent was tainted by the lack of a Miranda warning. The State moved for The trial court reversed its earlier ruling and reconsideration. concluded that because Stultz was lawfully seized during a Terry stop and she consented to the 2 The trial court found that Stultz answered Cienega' s question about additional paraphernalia by answering, "` no, go ahead and search. "' CP at 59 -60 ( FF 10). 3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966). 3 No. 45225 -1 - II warrantless search of her car, the pipe, pouch, and baggies were admissible. The court entered amended findings of fact and conclusions of law. The trial court found Stultz guilty in a stipulated facts trial. Stultz appeals. ANALYSIS 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, 563, 299 P. 3d 663 ( 2013), review denied 178 Wn.2d 1011. We review conclusions of law de novo to determine if the conclusions of law are supported by the findings of fact. Russell, 180 Wn.2d at 866 -67. Substantial of the truth of the stated evidence is premise. "' evidence that is sufficient "` to persuade a fair minded person Russell, 180 Wn.2d at 866 -67 ( quoting State v. Reid, 98 Wn. App. 152, 156, 988 P. 2d 1038 ( 1999)). Substantial evidence supports the trial court' s challenged findings of fact and those findings of fact support the court' s amended conclusions of law. In granting the State' s motion to reconsider, the trial court correctly ruled that the pipe, pouch, and baggies were admissible against Stultz. 4 No. 45225 -1 - II I. Findings Of Fact Stultz assigns error to four of the trial court' s amended findings of fact: 4( 1) that Cienega immediately recognized" the object between Stultz' s legs as a methamphetamine smoking pipe CP at 59 ( FF 6)), ( 2) that as Stultz got out of the car, Cienega saw the pipe and the pouch with the baggies saw that the he believed contained methamphetamine ( FF pipe and pouch and asked CP go ahead and search ' ( statements making at her if she had 59 -60 ( FF 10)), to LaClaire ( FF 13). 9), ( 3) that after Cienega told Stultz he more paraphernalia in the car, she answered, "' no, and ( 4) that Stultz waived her Miranda rights by Substantial evidence supports each of these amended findings of fact. A. Cienega Saw a Glass Pipe and White Residue —Amended Finding Of Fact 6 Substantial evidence supports the trial court' s amended finding of fact 6 that Cienega immediately recognized" the object between Stultz' s legs as a methamphetamine smoking pipe that had leaned white residue over to open in the the stem. CP at Officer Cienega testified that when Stultz 59 ( FF 6). door for LaClaire, Stultz' s coat slipped up on her legs. With his light shining into the car, Cienega saw what he believed was a methamphetamine smoking pipe between Stultz' s legs. The trial court' s amended finding of fact 5 stated that Cienega described the object between Stultz' Stultz does training s legs as " the stem of not challenge amended and experience, a a glass pipe" finding fair minded of and " white residue fact 5. person inside the stem." CP at 59. Based on Cienega' s testimony about his could conclude that Cienega " immediately recognized" that the object between Stultz' s legs was a methamphetamine smoking pipe by his description 4 Stultz of the object. ( CP at 59 ( FF 6). challenges amended findings of fact 6, 9, 10 5 and 13 ( CP 59 -60). Br. of Appellant at 1. No. 45225 -1 - II B. Cienega Saw the Pipe, Pouch, and Baggies as Stultz Exited Her Car— Amended Finding Of Fact 9 A fair minded person could also conclude that when Stultz got out of the car, Cieriega saw the pouch with the baggies containing what he " believed" was methamphetamine and recognized what he placed saw. CP 59 ( FF 9). at Stultz in handcuffs actually open and believed the there substance and was in Cienega testified that something " caught [ his] attention" as he he described what he saw as a " soft five baggies, typically one of the used baggies to be for gray and the flap was pouch ... narcotics." VRP methamphetamine. at 43. Cienega Substantial evidence supports amended finding of fact 9. C. Stultz Consented to a Search Of Her Car —Amended Finding Of Fact 10 Stultz next challenges the trial court' s amended finding of fact 10, that Stultz answered Cienega' search." s question about more paraphernalia CP paraphernalia vehicle." at 59 -60. in the VRP at car by responding, " no, go ahead and Cienega testified that after he asked Stultz if she had more narcotics or car, 45. inside the Stultz said, " no, she [ Stultz] said that was it, and we could search the Although the trial court' s amended finding of fact did not quote precisely what Cienega testified that he heard Stultz say, substantial evidence supports amended finding of fact 10. 6 No. 45225 -1 - II D. After Being Advised Of Her Miranda Rights, Stultz Made Statements to LaClaire-Amended Finding Of Fact 13 Lastly, Stultz challenges amended finding of fact 13, which found that after Cienega read Stultz her Miranda warnings she waived rights those and made statements to LaClaire. The findings of fact do not specify these statements, but substantial evidence supports the finding that Stultz continued could not to talk remember testified that Stultz with LaClaire exactly had Stultz when not made after she received that admitted statement to Miranda to warnings. ingesting Although LaClaire methamphetamine, Cienega him. Cienega testified that he did not talk to Stultz after he read Stultz the Miranda warning, but that LaClaire and Stultz continued to have a conversation. A fair minded person, considering the totality of both officer' s testimonies, could conclude that Stultz made statements to LaClaire after Cienega read the Miranda warning to her. Substantial evidence supports amended finding of fact 13. II. Conclusions Of Law Stultz also challenges five of the trial court' s amended conclusions of law:5 ( 1) that Cienega lawfully seized Cienega had Stultz during probable cause a valid to warrantless search of Stultz' s 5 Stultz Terry arrest stop Stultz when when he ordered her to exit the car ( CL 4), ( 2) that he handcuffed her ( CL 5), ( 3) that Cienega' s car was based upon the consent exception to the warrant challenges amended conclusions of law 4, 5, 9, 10 at 1. 7 and 11 ( CP 60 -61). Br. of Appellant No. 45225 -1 - II requirement ( CL obtained 9), ( 4) that Stultz' from Stultz' s consent s consent was not to search was testimonial ( CL admissible ( CL 11). 10), and ( 5) that the evidence 6 Because the trial court' s amended findings of fact support these conclusions of law, the trial court on reconsideration properly ruled that the pipe, pouch, and baggies were admissible. Generally, warrantless searches and seizures are per se unreasonable and violate the Fourth Amendment of the United Constitution. State and v. carefully drawn seizures. States Constitution and article I, section 7 of the Washington Garvin, 166 Wn.2d 242, 249, 207 P. 3d 1266 ( 2009). "`[ exceptions ' A] few jealously apply to the general rule against warrantless searches and Garvin, 166 Wn.2d at 249 ( quoting State v. Duncan, 146 Wn.2d 166, 171 -72, 43 P. 3d in this 1) Terry 2) searches incident to a 513 ( 2002). The valid arrest; ( 3) plain view; and ( 4) consent. Garvin, 166 Wn.2d at 249 -50; State v. O' Neill, 148 relevant exceptions Wn.2d 564, 588, 62 P. 3d 489 ( 2003). " within one of these ` narrowly drawn' case are: ( stops; ( The State bears a heavy burden to show the search falls exceptions." Garvin, 166 Wn.2d at 250 ( quoting State v. Jones, 146 Wn.2d 328, 335, 45 P. 3d 1062 ( 2002)). A. Cienega Lawfully Detained Stultz During a Terry Stop —Amended Conclusion Of Law 4 Stultz argues that Cienega seized her unlawfully by exceeding the scope of a valid Terry stop. We disagree. 6 Stultz also assigns error to the trial court' s amended conclusion of law 3 that LaClaire' s request for Stultz' s identification was an unlawful seizure, but she does not provide any further argument on that issue. Br. of Appellant at 1. We do not further address Stultz' s assignment of error to law 3. We note, however, that under these facts the trial court correctly cited State v. O' Neill, 148 Wn.2d 564, 574, 62 P. 3d 489 ( 2003) for authority that Stultz was not seized when conclusion of LaClaire asked her for identification. 8 No. 45225 -1 - II An officer may conduct a Terry stop when the officer has reasonable, articulable suspicion based on "' specific and articulable facts which, taken together with rational inferences from those facts, reasonably 2012) ( quoting warrants an intrusion. "' Terry, 392 U. S. at State v. Snapp, 174 Wn.2d 177, 197, 275 P. 3d 289 The officer must have articulable suspicion of a substantial 21). possibility that criminal conduct has occurred or is about to occur. Snapp, 174 Wn.2d at 197 -98. Reasonable Wn. 2d valid. at articulable suspicion 198. State v. is determined by a totality of the circumstances. Snapp, 174 An officer' s actions must be " justified at their inception" for a Terry stop to be Gatewood, 163 Wn.2d 534, 539, 182 P. 3d 426 ( 2008). The scope of a Terry stop may be enlarged if the officer obtains or confirms more suspicions during the investigation. State v. Acrey, 148 Wn.2d 738, 747, 64 P. 3d 594 ( 2003). Cienega and LaClaire conducted a welfare check after receiving a report of a person passed out" in a car and that people had been coming and going from that car into an apartment in a complex that the officers were familiar with due to past drug activity. Stultz does not challenge amended conclusion of law 2, that Cienega' s and LaClaire' s initial interactions with Stultz (shining their lights into the car and rapping on the car windows) were appropriate. As we conclude above, substantial evidence supports the trial court' s finding that when Cienega saw the glass object with white residue inside the stem between Stultz' s legs as she reached to open the passenger door for LaClaire, he immediately recognized what he believed to be a methamphetamine regional narcotics had smoking task force. pipe. Cienega had recently finished a training course with a At that point, based on the totality of the circumstances, Cienega reasonable, articulable suspicions that Stultz 9 was engaged in unlawful that she was activity — No. 45225 -1 - II in possession of drug paraphernalia and intended to use it to consume a controlled substance. Cienega' s subsequent detention of Stultz was thus reasonable. The trial court' s amended findings of fact support its conclusion that Cienega seized Stultz within the scope of an appropriate Terry stop based on specific and articulable suspicions of criminal activity. B. Cienega Had Probable Cause to Arrest Stultz— Amended Conclusion Of Law 5 Stultz argues that Cienega did not have probable cause to arrest her. We disagree. An officer may arrest a person without a warrant if the officer has probable cause to believe the person Probable has committed cause requires a a crime. State v. Rose, 175 Wn.2d 10, 22, 282 P. 3d 1087 ( 2012). showing that ' the facts and circumstances within the arresting officer' s knowledge and of which the officer has reasonably trustworthy information are sufficient to warrant a person of reasonable caution Barron, 170 Wn. App. in a belief that an offense 742, 750, 285 P. 3d 231 ( 2012) ( 632, 643, 716 P. 2d 295 ( 1986)). has been committed. "' State v. quoting State v. Terrovona, 105 Wn.2d Probable cause is determined by a totality of the circumstances. Barron, 170 Wn. App. at 750. The trial court' s amended findings of fact 6 and 9 about Cienega' s observations of the pipe, pouch, and baggies would lead a reasonable person, with Cienega' s training and experience, to believe that Stultz had committed a crime. Cienega thus had probable cause to arrest Stultz before he placed her in handcuffs when he observed the pipe in her lap and as she got out of the car. The 7 The City of Bainbridge Island' s Municipal Code prohibits possession of "any drug paraphernalia with the intent to BIMC 9. 07. 020. use [ See it] ... for ... http:// consuming controlled substances." Ord. 85 -08 § 2, 1985; www. codepublishing . com/ wa/ bainbridgeisland/ 20.15). 10 ( viewed Feb. 19, No. 45225 -1 - II trial court' s amended findings of fact support amended conclusion of law 5 that Cienega had probable cause to arrest Stultz when he placed her in handcuffs. 8 C. Stultz Validly Consented to Cienega' s Warrantless Search— Amended Conclusions Of Law 9 and 11 Stultz challenges the trial court' s amended conclusion of law 9, that Cienega' s warrantless search of Stultz' s car was based upon the consent exception to the warrant requirement, and amended conclusion of law 11 that the pipe, pouch, and baggies were obtained as a result of her voluntary consent was admissible.9 We disagree.'° The State must show by clear and convincing evidence that a person' s consent to a warrantless search was duress, given " and voluntarily" and was not the product of coercion or O' Neill, 148 Wn.2d implied. express or freely at 588; Russell, 180 Wn.2d at 867. This is a heavy burden." Russell, 180 Wn.2d at 867. Consent is a question of fact determined by a totality of the circumstances rather 589. Factors warnings may be which before the than merely applying considered consent to a multifactor analysis. O' Neill, 148 Wn.2d at include: ( 1) whether the officer gave the person Miranda search, ( 2) the degree of the person' s education and intelligence, 8 Stultz argues that Cienega did not have probable cause to arrest her because Cienega testified that he did not believe that he had probable cause when he handcuffed her, but that he had probable cause once he removed the evidence from Stultz' s car. We review conclusions of law de novo based on findings supported by substantial evidence. Russell, 180 Wn.2d at 866 -87. Because the trial court correctly concluded that Cienega had probable cause and the findings support that conclusion, Cienega' s opinion is irrelevant. 9 Stultz incorrectly argues that her consent was tainted by an illegal arrest. As explained above, Cienega had probable cause to arrest Stultz. 1° For the first time on appeal, the State argues that Cienega lawfully seized the pipe, pouch, and baggies pursuant to a search incident to arrest. Because we hold instead that Stultz validly consented to Cienega' s search, we do not address this argument. 11 No. 45225 -1 - II 3) whether the officer advised 5) whether for consent was cooperative, ( the officer asked Wn.2d at 588; State v. the the to person of his or her right person refused consent search, and ( Dancer, 174 Wn. 7) whether App. 666, to consent, ( 4) whether the person before granting it, (6) the how many times person was restrained. O' Neill, 148 676, 300 P. 3d 475 ( 2013), review denied 179 Wn.2d 1014. No one factor is dispositive. Russell, 180 Wn.2d at 872. Stultz argues that: ( go ahead and search," ( 1) Cienega did not give her Miranda warnings until after she said " no, 2) the trial court did not make findings on her education or intelligence, 3) LaClaire testified that Stultz appeared " confused" when she spoke to her, 11 ( 4) the officers did not tell Stultz that she could refuse to consent, and ( 5) she was in handcuffs with at least three officers present when she consented. Br. of Appellant at 7 -8. Stultz, however, ignores other factors demonstrating that her consent was voluntary, including ( 1) Miranda warnings were not given nor required by before Stultz evidence12 substantial ( CP said, "[ at G] o ahead and search," and this finding of fact is supported 59 ( FF 10)), ( 2) Stultz was cooperative throughout her interactions with Cienega and LaClaire, 13 ( 3) Stultz granted consent after Cienega told her that he saw the pipe in her lap and she had tried to cover it with her hands, and (4) despite the presence of three officers, 11 LaClaire testified that Stultz appeared " to be a little bit confused based on her not knowing how long she had been in the car or, you know, why she was in the vehicle." VRP at 17. This testimony does not suggest that Stultz was unable to consent or that she did not understand the statements she made, including her grant of consent. 12 Law enforcement officers are not necessarily required to give Miranda warnings or advise a person of his or her right to refuse consent before that person may voluntarily consent to a search. Dancer, 174 Wn. App. at 676; State v. Rodriguez, 20 Wn. App. 876, 880, 582 P. 2d 904 ( 1978). 13 LaClaire testified that Stultz was " compliant, courteous, [ and] easygoing." VRP at 17. A separate finding of fact is not required regarding Stultz' s intelligence or education; the trial court' s finding that Stultz voluntarily consented to the search under the totality of the circumstances is otherwise supported by the record. 12 No. 45225 -1 - I1 even if Stultz had been under arrest at the time she gave consent, that circumstance alone would not have been to sufficient conclude that her consent was coerced. 14 The totality of the circumstances support the trial court' s findings that Stultz consented voluntarily. The trial court' s conclusions of law 9 and 11, that Stultz consented to Cienega' s warrantless search, that the search was lawful, and that the evidence seized during that search was admissible, were proper and supported by the amended findings of fact. D. Stultz' s Consent Was Not Testimonial— Amended Conclusion Of Law 10 Stultz statement also argues was that 1) testimonial she was compelled evidence that to tell Cienega, " go violated 2) this ahead and search," her Fifth Amendment rights, and 3) the incriminating physical evidence ( pipe, bag, and baggies) should be suppressed. We disagree. Article I, compelled in any section 9 of the Washington Constitution criminal case to give evidence against Amendment to the United States Constitution in any criminal case to be interprets these two 196 P. 3d 645 ( 2008). a witness against provides provides that "[ himself." Const. that "[ n] o person ... n] o person shall be art. I, § 9. The Fifth shall be compelled himself." U. S. Const. amend. V. Our Supreme Court constitutional provisions consistently. State v. Unga, 165 Wn.2d 95, 100, The right against self incrimination is intended to prohibit the inquisitorial method of investigation in which the accused is forced to disclose the contents of the person' s mind or speak his or her guilt. State v. Mendes, 180 Wn.2d 188, 195, 322 P. 3d 791 ( 2014). Stultz' speak [ her] s statement guilt." to Cienega, " go Mendes, 180 Wn.2d ahead and search" was not testimonial because it did not at 195. We have already concluded that the trial court 14 A person may voluntarily consent to a warrantless search while he or she is under arrest. State v. Johnson, 104 Wn. App. 409, 421 -22, 16 P. 3d 680 ( 2001). 13 No. 45225 -1 - II correctly concluded that Stultz validly consented to the search of her car. And, contrary to Stultz' s claim, a consent to search is not testimonial evidence, which implicates the Fifth Amendment, simply because that consent leads to incriminating evidence. State v. Rodriguez, 20 Wn. App. 876, 880, 582 P. 2d 904 ( 1978). Miranda warnings are not a prerequisite to a grant of voluntary consent. Rodriguez, 20 Wn. App. at 880. The trial court did not error in amended conclusion of law 10 that Stultz' s consent was not testimonial. The trial court' s amended findings of fact 6, 9, 10 and 13 are supported by substantial evidence and those amended findings support the trial court' s amended conclusions of law 4, 5, 9, 10 and 11. Holding that the Terry stop was lawful, that Stultz validly consented to the search of her car, and that her consent was not testimonial, we affirm. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040, it is so ordered. We concur: Wor wick, J. Melnich, J. 14

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