Opinion
No. 60705-7-I.
January 20, 2009.
Appeal from a judgment of the Superior Court for King County, No. 07-8-01938-5, Donald D. Haley, J. Pro Tem., entered October 4, 2007.
Affirmed by unpublished per curiam opinion.
UNPUBLISHED OPINION
I.A.S. appeals his juvenile conviction for violation of the Controlled Substances Act. He claims his arrest violated the Fourth Amendment and article I, section 7 of the Washington Constitution. Because I.A.S. affirmatively waived the opportunity to make a suppression motion below, he may not raise this issue for the first time on appeal. We affirm.
FACTS
Appellant I.A.S. was driving a car in downtown Seattle. He made an unsafe left turn in front of a police car, failing to yield the right-of-way. Officers Cannon and Curtis activated their lights and stopped I.A.S. for the infraction. Upon approaching the car, both officers detected the odor of marijuana emanating from inside the car. Officer Cannon arrested I.A.S. for possession of marijuana, removed him from the car, and conducted a search incident to arrest. Officer Cannon found a baggie of marijuana in I.A.S.'s pants pocket.
The King County Prosecuting Attorney charged I.A.S. with one count of possession of forty grams or less of marijuana. At the conclusion of the fact-finding and sentencing proceedings on October 4, 2007, he was convicted as charged.
ANALYSIS
I.A.S. contends that he may raise the constitutionality of his arrest and subsequent search for the first time on appeal, as a manifest error affecting a constitutional right.
RAP 2.5(a) provides that a party may raise for the first time on appeal an error of constitutional magnitude. Admission of evidence obtained in violation of either the Fourth Amendment or article I, section 7 of Washington's Constitution is an error of constitutional magnitude.
However, in State v. Valladares, 99 Wn.2d 663, 671-72, 664 P.2d 508 (1983), our Supreme Court held that a defendant who voluntarily and affirmatively withdraws a motion to suppress at trial waives the Fourth Amendment objections on appeal. See also State v. Mierz, 72 Wn. App. 783, 789, 866 P.2d 65, 875 P.2d 1288 (1994), aff'd by State v. Mierz, 127 Wn.2d 460, 901 P.2d 286, 50 A.L.R.5th 921 (1995). Waiver of a constitutional right must be voluntary, knowing, and intelligent. In re James, 96 Wn.2d 847, 851, 640 P.2d 18 (1982); State v. Bennett, 42 Wn. App. 125, 128-29, 708 P.2d 1232 (1985) (finding that Bennett had not waived his right to have an instruction based on the lawful use of force because there was no overt act demonstrating waiver). Here, I.A.S.'s counsel stated at trial that, "There is no 3.6 issue, your Honor." If the voluntary withdrawal in Valladares is sufficient to constitute waiver, an affirmative statement demonstrating the choice not to file a suppression motion, such as the one counsel made here, is sufficient to constitute waiver.
Because there was no error below, I.A.S. may not raise this issue for the first time on appeal. We do not reach the issue of whether the officers had probable cause to arrest or search I.A.S.
We affirm.