Opinion
Nos. 25437-9-II (consolidated with) 25473-5-II.
Filed: May 18, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Cowlitz County, No. 99-1-00733-3, Hon. Stephen M. Warning, December 9, 1999, Judgment or order under review.
Counsel for Appellant(s), James K. Morgan, Attorney At Law, 1555 3rd Ave Ste a, Longview, WA 98632-3228.
Counsel for Respondent(s), Heiko P. Coppola, Cowlitz Co Pros Aty Offc, 312 S.W. First Ave, Kelso, WA 98626.
In this consolidated appeal, Rosemarie McClung and her husband, Matthew McClung, appeal their drug related convictions. We affirm.
On July 16, 1999, Detective Pat Moore of the Cowlitz-Wahkiakum Narcotics Task Force purchased marijuana from Matthew McClung while Detective Moore was acting undercover. During the transaction, Matthew McClung revealed to Detective Moore that he had an indoor grow operation and that his wife would tend to it when he was out of town. Matthew McClung was arrested.
At about 10:15 p.m. that same evening, Detective Moore, Detective John Johnson, and a uniformed Kelso police officer contacted Rosemarie McClung at her residence. Detective Moore tape recorded his conversation with Rosemarie McClung. Detective Moore informed Rosemarie McClung that her husband had been arrested for delivery of a controlled substance and that her husband had told him there was a marijuana grow operation inside the residence. Detective Moore and the other officers were outside the front door of the McClungs' residence during the conversation. Rosemarie McClung's children, ages two and seven, were with her at home. Detective Moore did not give Rosemarie McClung Miranda warnings prior to the request to search the residence. He did inform her that she could refuse, revoke, or limit her consent to the search.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Detective Moore told Rosemarie McClung that he could smell a strong odor of marijuana emanating from the residence. In response to questions from Rosemarie McClung, Detective Moore informed her that if she refused consent to the search, he would freeze the scene, apply for a search warrant, return, and search the house. If he found marijuana he would arrest her. He repeatedly told her he did not want to arrest her, take her to jail, or place her children in the custody of Child Protective Services (CPS). After an approximately 20 minute conversation, Rosemarie McClung consented to a search of her residence. She led the officers to the kitchen, where there were 115 grams of dried and processed marijuana, and she gave them the keys to a garage that contained the grow operation. The officers found 84 marijuana plants, growing apparatus, and dried and drying marijuana.
Then, after being advised of her Miranda rights, Rosemarie McClung admitted to Detective Johnson that she and her husband were growing marijuana because of their financial troubles.
The State charged Rosemarie McClung with one count of manufacture of marijuana. It charged her husband, Matthew McClung, with two separate counts of delivery of marijuana on separate dates and one count of manufacture of marijuana. The McClungs moved to suppress the evidence from the search, contending that Rosemarie McClung's consent to search was involuntary. The trial court found that under the totality of circumstances the search was voluntary and it denied the motion to suppress. At a bench trial, the McClungs then entered a stipulation of facts, and the trial court found both of them guilty as charged. The McClungs consolidated their appeals, challenging the trial court's denial of their motion to suppress.
I. Consent to Search
Rosemarie McClung contends that her consent to search her residence was involuntary and that the trial court should have suppressed the evidence obtained from the search. A warrantless search of a home is constitutional when the householder voluntarily consents. Washington v. Chrisman, 455 U.S. 1, 9-10, 102 S.Ct. 812, 70 L.Ed.2d 778 (1982); State v. Hashman, 46 Wn. App. 211, 214, 729 P.2d 651 (1986), review denied, 108 Wn.2d 1021 (1987).
The State has the burden of proving by clear and convincing evidence that consent was voluntarily given. State v. Smith, 115 Wn.2d 775, 789, 801 P.2d 975 (1990); State v. Shoemaker, 85 Wn.2d 207, 210, 533 P.2d 123 (1975). The State admitted that this was a 'knock and talk' circumstance and thus subject to the procedure set forth in State v. Ferrier, 136 Wn.2d 103, 960 P.2d 927 (1998).
In Ferrier, the court held that under article I, section 7 of the Washington Constitution, when officers use a 'knock and talk' procedure to obtain consent to search a home without a warrant, the officers must, before entering the home, inform the person from whom consent is sought that she may lawfully refuse to consent to the search, can revoke the consent at any time, and can limit the scope of the consent. Ferrier, 136 Wn.2d at 118. Failure to provide these warnings prior to entering the home vitiates any consent given thereafter. Ferrier, 136 Wn.2d at 118-19.
Here, Detective Moore complied with this requirement by informing Rosemarie McClung of her right to refuse, revoke, or limit her consent. Nevertheless, Rosemarie McClung contends her consent to search was coerced and involuntary. 'Whether consent to search was voluntary, and thus valid, or was 'the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances." State v. Raines, 55 Wn. App. 459, 462, 778 P.2d 538 (1989) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)), review denied, 113 Wn.2d 1036 (1990).
We determine the voluntariness of consent by considering several factors including: (1) whether Miranda warnings preceded the consent; (2) the degree of education and intelligence of the consenting person; and (3) whether the consenting person had been advised of her right not to consent. None of these factors is dispositive. Smith, 115 Wn.2d at 789 (citing Shoemaker, 85 Wn.2d at 212); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Miranda warnings are not a prerequisite to voluntary consent. State v. Rodriguez, 20 Wn. App. 876, 880, 582 P.2d 904 (1978). Merely because an individual is in the custody of police officers does not mean that consent is coerced. Smith, 115 Wn.2d at 789; State v. Cole, 31 Wn. App. 501, 504, 643 P.2d 675 (1982). '[I]n reviewing findings of fact entered following a motion to suppress, we will review only those facts to which error has been assigned. Where there is substantial evidence in the record supporting the challenged facts, those facts will be binding on appeal.' State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994).
Evidence is substantial when it is sufficient to persuade a fair minded person of the truth of the stated premise. State v. Reid, 98 Wn. App. 152, 156, 988 P.2d 1038 (1999). Here, the McClungs assigned error to all the court's findings and conclusions in support of its order denying defendant's suppression motion, but they provided argument only on a few findings. We could find the assignment of error and the lack of argument on many of the findings defective and hold that the findings are verities for the purposes of the appeal. See Davis v. Dep't of Labor Indus., 94 Wn.2d 119, 123, 615 P.2d 1279 (1980). But, even if we assume the McClungs properly appealed all the findings, we hold that substantial evidence supports the findings as we explain in the following analysis.
The trial court, in this case, concluded that under the totality of the circumstances the State had proved by clear, cogent, and convincing evidence that Rosemarie McClung voluntarily consented to a search of her residence. In contrast, the McClungs contend that Rosemarie McClung's consent was not voluntary because the police officer did not give her Miranda warnings, deceived her about her husband's cooperation, and threatened to obtain a search warrant, to arrest her and take her to jail, and to place her children with CPS.
Valid consent may be given following a threat to obtain a search warrant. But threats to obtain a warrant may invalidate consent if grounds for obtaining the warrant did not exist. State v. Apodaca, 67 Wn. App. 736, 739, 839 P.2d 352 (1992), overruled on other grounds by State v. Mierz, 127 Wn.2d 460 (1995). Police officers may not misrepresent the scope or extent of their authority to obtain a search warrant. Apodaca, 67 Wn. App at 740; see also 3 Wayne R. LaFave, Search and Seizure, § 8.2(c) (3d ed. 1996). Rosemarie McClung argues that her consent was invalid because Detective Moore made unfounded threats to obtain a warrant. The smell of marijuana, when detected by those qualified to recognize the odor, is sufficiently distinctive to create probable cause to search or arrest for marijuana possession. State v. Ramirez, 49 Wn. App. 814, 819, 746 P.2d 344 (1987) (odor from hotel room).
Detective Moore testified that he was trained to detect the odor of marijuana and that he could smell the odor of marijuana from the McClungs' residence. This was substantial evidence to support the trial court's finding that Detective Moore could smell marijuana. There were 115 grams of processed marijuana in the kitchen. We hold that Detective Moore had probable cause to obtain a warrant because he could smell marijuana from the door of Rosemarie McClung's residence and because Matthew McClung had made statements about a marijuana grow operation.
Thus, the officer's threat to obtain a warrant did not invalidate Rosemarie McClung's consent to search. As several courts have noted, an unfounded threat to remove a child from the parents' custody may introduce extrinsic considerations that distort a suspect's rational choice and undermine the validity of a later confession or consent to search. See Lynumn v. Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963); Holland v. McGinnis, 963 F.2d 1044, 1051-52 (7th Cir. 1992). While statements about removing a child to CPS may under certain circumstances constitute undue psychological pressure, the totality of circumstances must be considered. The McClungs rely in part on the United States Supreme Court's decision in Lynumn, 372 U.S. 528. Lynumn involved more coercive circumstances than in the present case.
In Lynumn, the defendant was encircled in her apartment by three police officers and a twice-convicted felon who had purportedly set her up. The officers explicitly threatened to send her to jail if she did not cooperate, cut off state financial aid for her children, and take her children away. They told her that she would not see her children for a long time. Lynumn, 372 U.S. at 534. Here, the officers were not inside the house and they did not make comparable dire threats. Rather, Detective Moore informed Rosemarie McClung about the consequences of her decision, including that he would apply for a search warrant, search the house, and if he found marijuana he would arrest her and have CPS take her children. Notably, Rosemarie McClung was the only adult home at that time. We do not approve of a tactic that involves threatening to remove children in order to obtain permission to search or to cooperate; but we must, except when the case is patently obvious, leave this to the trial court's discretion as it hears the witnesses and can evaluate the officer's motives and the possible coercion of the defendant.
All of the consequences that Detective Moore mentioned were properly within his authority, including making an arrest and placing the children with CPS. The record establishes that Rosemarie McClung was advised of her rights to refuse consent and that she understood those rights. The record does not show that she lacked the education or intelligence to make an informed decision. Moreover, Detective Moore explained what would happen if she did not consent only in response to her express questions. Indeed, the fact that Rosemarie McClung asked what would happen if she refused to consent to the search reflects her understanding of the situation. See Smith, 115 Wn.2d at 790.
Further, Detective Moore stated that he was not trying to coerce her. He declined to tell her what he thought she should do when he responded, 'I don't think anything, I don't know[.]' Br. of Resp't (Ex. A) at 14. We agree with the trial court that the circumstances in this case did not affect the voluntariness of Rosemarie McClung's consent to search. Bolin, another case cited by the McClungs, is distinguishable. United States v. Bolin, 514 F.2d 554 (7th Cir. 1975).
In Bolin, the court found that the defendant's consent was involuntary because he signed a consent form only after police officers threatened to arrest his girlfriend. Nothing in the decision, however, suggests that the officers' threat had any lawful basis, and the court stressed that Bolin's consent was obtained after he had been arrested and was undergoing custodial interrogation. Bolin, 514 F.2d at 560-61. By inquiring what would happen if she did not consent, Rosemarie McClung placed herself in the position of having to choose between two equally unpalatable alternatives. If she consented to the search, she knew that the officers would find the grow operation in the garage. If she declined to grant consent, she could be equally certain that the officers would obtain a search warrant and find the grow operation anyway. Although both options were admittedly unpleasant, '[b]owing 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). Additionally, Rosemarie McClung briefly argues that the police threatened to tear apart her house in a general search and that the police lied about her husband's cooperation. A review of the tape transcript reveals that Detective Moore did not threaten to destroy or tear apart the residence.
In fact, he assured Rosemarie McClung that he would not destroy or make a mess of her house. Further, the detective's misrepresentation of her husband's degree of cooperation is not sufficient to invalidate consent.
We conclude under the totality of circumstances that Rosemarie McClung's consent to search was voluntary.
II. Miranda
Rosemarie McClung argues that the officers' failure to Mirandize her makes her consent invalid. 'Miranda warnings are not a prerequisite to a voluntary consent; they relate to the compulsory self-incrimination barred by the Fifth Amendment and not to unreasonable searches and seizures proscribed by the Fourth Amendment.' Rodriguez, 20 Wn. App. at 880. Miranda warnings are only a factor to be considered in determining whether under the totality of circumstances the consent was voluntary. Smith, 115 Wn.2d at 789. As explained above, although Rosemarie McClung did not receive Miranda warnings, we conclude that her consent to search was voluntary considering all the circumstances of this case. While Miranda warnings are not required for voluntary consent, the procedural protections enunciated in Miranda are necessary when a person is subjected to custodial interrogation by a state agent. See State v. Sargent, 111 Wn.2d 641, 647, 762 P.2d 1127 (1988). "Custody' for Miranda purposes is narrowly circumscribed and requires 'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." State v. Post, 118 Wn.2d 596, 606, 826 P.2d 172, 837 P.2d 599 (1992) (citations omitted). Rosemarie McClung essentially argues that she was subjected to custodial interrogation, citing State v. Dennis, 16 Wn. App. 417, 558 P.2d 297 (1976).
In Dennis, this court concluded that the defendant was under custodial interrogation and that Miranda warnings were required when the officer in the defendant's residence convinced the defendant to produce a supply of narcotics hidden in the refrigerator and then the officer arrested him. Dennis, 16 Wn. App. 417. The officer was inside the defendant's home and told the defendant and his wife that a search warrant was on its way and they were going to wait for it. When the defendant's wife requested that the officer move to another room, he insisted on remaining at the kitchen table in a position where he could monitor and restrict the occupants' freedom of movement within their home. Dennis, 16 Wn. App at 420-22. The court stated that under those circumstances a reasonable man would have believed his freedom of movement was significantly restricted and that any attempt to leave would probably result in immediate physical restraint or custody. Dennis, 16 Wn. App at 422.
In this case, like Dennis, Rosemarie McClung led the police to incriminating evidence and this is a testimonial act. Where a police officer's questioning or requests induce a suspect to hand over or reveal the location of incriminating evidence, such a nonverbal act may be testimonial in nature; that act should be suppressed if done while in custody without Miranda warnings. State v. Wethered, 110 Wn.2d 466, 471, 755 P.2d 797 (1988). The issue is whether Rosemarie McClung was in custody. Notably, in Dennis, this court additionally relied on the 'probable cause to arrest' standard as to whether a person is in custody. Dennis, 16 Wn. App at 422. We note that, in Harris, the Washington Supreme Court determined that Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984), modified the probable cause to arrest standard used to determine when Miranda safeguards are required. State v. Harris, 106 Wn.2d 784, 790, 725 P.2d 975 (1986), cert. denied, 480 U.S. 940 (1987); see also State v. Watkins, 53 Wn. App. 264, 274, 766 P.2d 484 (1989). The Supreme Court held that "the safeguards prescribed by Miranda become applicable as soon as a suspect's freedom of action is curtailed to a 'degree associated with formal arrest." Harris, 106 Wn.2d at 789-90 (quoting Berkemer, 468 U.S. at 440). "[T]he only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation." Watkins, 53 Wn. App. at 274 (quoting Berkemer, 468 U.S. at 442).
Here, the uncontroverted evidence from the hearing demonstrates that: (1) Rosemarie McClung was in her doorway with her two year old child and the officers were on the porch outside of her home; (2) the officers did not handcuff or restrain her; (3) the officers did not draw their weapons or force their way in; (4) she was not arrested that evening; (5) she was never told that she could not leave during the questioning; and (6) she never told the officers to move or leave, nor did she attempt to close the door or leave. Moreover, Detective Moore told her that she could refuse to show them where the marijuana was located.
In response to her questions about what would happen if she did not consent, Detective Moore informed Rosemarie McClung that if he had to apply for a warrant he would 'freeze the scene' and have an officer wait with her until he applied for and returned with a search warrant. Detective Moore told her that if he had to go apply for a search warrant that 'this officer here is going to be standing with you so you can't destroy anything[.]' Br. of Resp't (Ex. A) at 8. Rosemarie McClung's freedom was curtailed only to the degree that she could not destroy any evidence. This is clearly not equivalent to curtailing freedom of action to a degree associated with formal arrest. Accordingly, Dennis does not apply. Rosemarie McClung was not in custody in the doorway of her home and Miranda warnings were not required. Thus, the trial court did not err in denying the motion to suppress the evidence of the search.
Affirmed.
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.
WE CONCUR: MORGAN, P.J., SEINFELD, J.