Opinion
No. 29889-9-II.
Filed: March 2, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Clark County. Docket No: 02-1-01720-7. Judgment or order under review. Date filed: 01/10/2003. Judge signing: Hon. Roger a Bennett.
Counsel for Appellant(s), Suzan L. Clark, Attorney at Law, 1101 Broadway St. Ste 250, Vancouver, WA 98660-3320.
Counsel for Respondent(s), Richard Alan Melnick, Attorney at Law, 1013 Franklin St, PO Box 5000, Vancouver, WA 98666-5000.
Caesar Carlise Garner appeals his convictions for second degree theft and second degree vehicle prowl. He argues that the trial court erred by failing to suppress evidence obtained during a vehicle search because (1) the vehicle owner did not consent to the search; and (2) the search exceeded the scope of any consent given. Garner also claims that he was denied his rights to a speedy trial and effective assistance of counsel. Finding no error, we affirm.
FACTS I. Theft and Vehicle Prowl
As Brittani Violanti and her younger sister walked to the parking lot of their small apartment complex, they noticed a man they did not recognize as being associated with their close-knit community. The man ran by the girls, pausing briefly as he passed. Suspicious, Brittani went to her apartment to get her father, Ted Violanti.
After returning to the parking lot, Ted and Brittani saw the man, whom they later identified as Caesar Carlise Garner, near a car belonging to their neighbor, Melissa Miller. Garner was `fiddling' with Miller's back passenger car door, which was open.
Miller was inside her apartment, having returned home from her boyfriend's house around 11:00 p.m. to change into her work clothes before starting the graveyard shift. Miller had left her car door unlocked. When, Miller returned to her car 15 minutes later, she discovered that her purse and work apron, which held a portable compact disc player, were missing.
When Ted approached Miller, she told him that someone had stolen her purse. Ted said that he had seen who did it, called 911, and spotted Garner leaving the parking lot in a red car. Officer Christopher LeBlanc had just arrived on the scene and the Violantis pointed Garner out to him. LeBlanc approached the red car and asked Garner to turn off the engine and exit the vehicle. Garner drove away. Ted noted the license plate number, which LeBlanc broadcast over his police radio.
II. Search and Arrest
Deputy Sheriff Todd Young heard the description of the vehicle and the license plate number, ran them through the system for owner and address information, and learned that the vehicle was licensed to a Marlene Stensdotter. Young went to the address on the registration and observed a red convertible pull into the driveway.
Young knocked on the door to the house and made contact with Stensdotter, who acknowledged that she was the car's registered owner and consented to a search of her house and his search of the car. Before entering the house to search for Garner, Young made an initial, cursory search of the car, but found nothing. Other officers found Garner in a bedroom inside Stensdotter's house and arrested him. Young and LeBlanc returned to the car and found a photograph of a young girl, Miller's stepdaughter, which had been in the purse stolen from her car.
III. Procedure
The State charged Garner with second degree theft and second degree vehicle prowling. At the start of Garner's trial, Garner's attorney informed the trial court that he had not considered whether the warrantless search was unjustified until his client, Garner, brought it to his attention. The trial court allowed defense counsel time to conduct a further investigation, explaining that he could renew his motion at a later time.
RCW 9A.56.020(1)(a), .040(1)(c).
After conferring with Stensdotter and the police officers who had been on the scene, Garner's counsel determined that he should move to suppress based on Stensdotter's lack of consent to search her car. The State objected, citing insufficient time to respond to the motion. Despite defense counsel's concession that his motion was not timely, the trial court and the State ultimately agreed to hold a post-trial suppression hearing, hoping to avoid a later ineffective assistance of counsel claim. The trial court stated that if it granted Garner's suppression motion, he could move for a new trial.
The jury convicted Garner on both counts. As agreed, the trial court then conducted a suppression hearing. After hearing testimony from the officers and Stensdotter, the trial court denied Garner's motion to suppress, stating it believed the officers' testimony but not Stensdotter's. The court concluded that Stensdotter was biased and prejudiced, based primarily on her illogical reason for denying consent she claimed that she had consented to the search of her home but would not have consented to a search of her car because it contained `the most private of her possessions.'
Officer Young testified that before getting Stensdotter's consent to search her house, he asked for and received permission to look in her car. He looked in her car twice, finding Miller's stepdaughter's photograph during the second search. Young testified that he did not have additional contact with Stensdotter before going back to search the car the second time, and that Stensdotter never told him that she did not want him to search the car again. Officer Daniel Fronk testified that although Stensdotter had talked to an officer about consent to search her car, his recollection of the conversation was vague as to who said what.
Stensdotter testified that although she did give the officers consent to search her home, she did not give them consent to search her car because she had private things in it. Stensdotter admitted on cross examination that she was romantically involved with Garner.
The trial court entered findings of fact and conclusions of law. Garner appeals.
ANALYSIS I. Consent to Search A. Standard of Review
When reviewing a trial court's denial of a CrR 3.6 motion to suppress, we review whether substantial evidence supports the trial court's challenged findings of fact and, if so, whether the findings support the trial court's conclusions of law. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999). We review conclusions of law in a suppression order de novo. Mendez, 137 Wn.2d at 214.
Because Garner failed to assign error to the trial court's findings of fact, they are verities on appeal. RAP 10.3(g); State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994) (citations omitted). When serving as fact finder, the trial court decides issues of fact and makes credibility determinations. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). We do not disturb credibility determinations on appeal. Camarillo, 115 Wn.2d at 71.
B. Valid Consent
Warrantless searches are per se unreasonable under the Fourth Amendment, subject to only a few exceptions. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). `A valid consensual search requires that: (1) the consent be `voluntary'; (2) the consent be granted by a party having authority to consent; and (3) the search be limited to the scope of the consent granted.' State v. Hashman, 46 Wn. App. 211, 214, 729 P.2d 651 (1986), review denied, 108 Wn.2d 1021 (1987). Whether consent to search was voluntary is a question of fact to be determined from the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The prosecution bears the burden of establishing that consent was voluntary. State v. O'Neill, 148 Wn.2d 564, 588, 62 P.3d 489 (2003). Garner argues that the warrantless search of the car was unlawful because Stensdotter did not voluntarily consent to the search because Young failed (1) to read Stensdotter her Miranda rights; or (2) to advise her of her right to refuse consent. We disagree.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Stensdotter was neither in custody nor a suspect when the officers sought consent, and Garner does not claim she was. Accordingly, they were not required to read her Miranda rights or to advise her that she had the right to refuse consent.
See, e.g., State v. Templeton, 148 Wn.2d 193, 208, 59 P.3d 632 (2002) (holding that Fifth Amendment right to Miranda warning attaches only when `custodial interrogation' begins).
Both the United States and Washington Supreme Courts have rejected the notion that `knowledge of the right to refuse consent is a necessary prerequisite to demonstrating a `voluntary' consent.' Schneckloth, 412 U.S. at 232-33; see also State v. Shoemaker, 85 Wn.2d 207, 213, 533 P.2d 123 (1975) (`Knowledge of the existence of the right to withhold consent is not prerequisite to the validity of its grant, at least where the person giving it is not in police custody.').
The unchallenged findings of fact support the trial court's conclusion of law that Young had Stensdotter's consent to search the car.
The trial court found that Deputy Young asked for and received Stensdotter's permission to look in her vehicle. The trial court also found credible Deputy Fronk's testimony that he remembered that Stensdotter had a conversation with one of the officers about consent.
Conversely, the trial court found that Stensdotter's `testimony that she was not asked for and did not give consent to search her vehicle was not credible' based on her `obvious and substantial bias.'
C. Scope of Consent
Garner further argues that even if Stensdotter did consent, Young's second search of the car exceeded the scope of consent. Again, we disagree.
A warrantless search, conducted with consent, must be conducted within the scope of the consent. The scope of a protective search must be limited to its purpose. State v. Collins, 121 Wn.2d 168, 173, 847 P.2d 919 (1993). Young sought and received Stensdotter's permission to search her vehicle for Miller's `stolen purse and such,' which is exactly what he did.
See State v. Hastings, 119 Wn.2d 229, 234, 830 P.2d 658 (1992); State v. Mueller, 63 Wn. App. 720,721, 821 P.2d 1267, review denied, 119 Wn.2d 1012 (1992).
We further acknowledge that `second or repetitive searches have been characterized as unreasonable, particularly when the second search is for matters unrelated to the subject matter of the first search.' State v. Gallo, 20 Wn. App. 717, 725, 582 P.2d 558 (citations omitted), review denied, 91 Wn.2d 1008 (1978). But a search may be briefly interrupted and still be continuous in nature. Gallo, 20 Wn. App. at 725. Whether a search is characterized as a second search or a continuous search is determined by the facts of each case. Gallo, 20 Wn. App. at 725. In making this determination, we consider three factors: (1) whether the same officers conducted the reentry search; (2) whether the purpose of the reentry search was the same as that of the original search; and (3) whether the time elapsed between searches indicates completion or abandonment of the search. Gallo, 20 Wn. App. at 725.
Here, Young conducted both searches of the car. When he discovered the photograph during the second search, his purpose was the same as it had been during the first search he was looking for the contents of Miller's stolen purse. Moreover, only 10 minutes elapsed between Young's first and second searches of Stensdotter's car. Based on these facts, we hold that Young's search of the vehicle was merely a continuation of his first search and, therefore, it was not an unreasonable second search.
Finally, we recognize that `[a]ny `express or implied limitations or qualifications' may reduce the scope of consent in duration, area, or intensity.' Young testified that he did not speak to Stensdotter again about searching the vehicle after she gave her initial consent. The trial court stated in its oral findings that `[Stensdotter's] permission was not limited. It was not limited in scope, it was not limited in time.' Moreover, Garner does not argue that Stensdotter limited her consent in any way, either expressly or impliedly. Rather, he makes unsupported, conclusory assertions that Young's second search of the vehicle exceeded the scope of consent. Garner thus fails to undermine the trial court's finding that Stensdotter did not limit her consent to search her car. We hold that (1) Young's discovery of the photograph during the second search of the car was within the scope and purpose of Stensdotter's consent to search for the stolen property; and (2) the trial court did not err in admitting the photograph from Miller's stolen purse that Young found during this search.
State v. Cotten, 75 Wn. App. 669, 679, 879 P.2d 971 (1994) (quoting 3 Wayne R. LaFave, Search and Seizure sec. 8.1(c), at 160 (2d ed. 1987)), review denied, 126 Wn.2d 1004 (1995).
III. Statement of Additional Grounds
Garner submitted a statement of additional grounds under RAP 10.10, raising two issues. He asserts that (1) the trial court violated his right to speedy trial by allowing 77 days to elapse between his arrest and trial, and by delaying the suppression hearing until after trial; and (2) he received ineffective assistance of counsel, who failed to move for a CrR 3.6 hearing to suppress evidence in a timely manner and did not represent Garner through completion of the trial. We disagree.
Garner's first speedy trial argument fails for two reasons. First, CrR 3.3(d)(1) requires that a defendant held in custody be brought to trial within 60 days of arraignment, not arrest. Garner does not claim, nor does the record demonstrate, that the court set the trial date more than 60 days after Garner's arraignment. Second, Garner failed to raise a speedy trial violation within 10 days as required by CrR 3.3(d)(3); consequently, he waived his right to any subsequent objection on this ground.
Garner's second speedy trial argument also fails. CrR 3.3 addresses the timing of trial, not motions; and CrR 3.6 places no time constraints on when counsel must bring a suppression motion. Defense counsel's failure to bring a suppression motion at a reasonable time before trial is not a speedy trial issue under CrR.3.3.
Finally, we again disagree with Garner's assertion that he received ineffective assistance of counsel. To show ineffective assistance of counsel, an appellant must show that (1) counsel's performance was deficient; and (2) the deficient performance prejudiced him. Deficient performance occurs when counsel's performance falls below an objective standard of reasonableness. Prejudice occurs when but for the deficient performance, the result of the proceedings would have been different. If either part of the test is not satisfied, the inquiry need go no further.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998).
In the Matter of the Personal Restraint Petition of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998).
State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
That defense counsel here was unprepared to move for a suppression hearing before trial did not in any way prejudice Garner in light of the trial court's overlooking the untimeliness of the motion and holding a hearing after trial instead. Garner offers no evidence that had the trial court conducted the hearing before trial, it would have granted the motion or if the court had granted the motion pretrial, that the outcome of the trial would have been different. On the contrary, the record suggests that the result would have been the same.
The State offered the testimony of three eyewitnesses who placed Garner at the apartment complex the night of the incident. Ted and Brittani Violanti both testified that Garner was next to Miller's car with the passenger door open. Officer LeBlanc testified that Garner was driving the red convertible that Ted identified as the assailant's car in the apartment parking lot that night.
Furthermore, the record does not in any way support Garner's claim that trial counsel failed to represent him through completion of the trial. Accordingly, Garner's ineffective assistance of counsel claims fail.
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 pursuant to RCW 2.06.040, it is so ordered.
MORGAN, J., SEINFELD, J., concur.