Opinion
No. 33614-6-II.
April 17, 2007.
Appeal from a judgment of the Superior Court for Kitsap County, No. 04-1-01723-6, Jay B. Roof, J., entered July 22, 2005.
Affirmed in part and remanded by unpublished opinion per Penoyar, J., concurred in by Bridgewater and Armstrong, JJ.
Glen L. McGuirk appeals the trial court's denial of his suppression motion, arguing that he did not consent to the police entry into his hotel room and that the search incident to his arrest was invalid. McGuirk moved to suppress the evidence obtained and the trial court denied the motion. After a bench trial on stipulated facts, McGuirk was convicted on all but two counts. We affirm the trial court's denial of McGuirk's suppression motion, but remand for recalculation of his sentence.
FACTS
After a bench trial on stipulated facts, the court found McGuirk guilty of (1) one count of second degree attempted identity theft, contrary to RCW 9.35.020 and RCW 9A.28.020; (2) three counts of second degree identity theft, contrary to RCW 9.35.020; (3) three counts of second degree possession of stolen property, contrary to RCW 9A.56.160; (4) five counts of unlawful possession of payment instruments, contrary to RCW 9A.56.320; and (5) one count of forgery, contrary to RCW 9A.60.020.
In this appeal, the State concedes that McGuirk's convictions for identity theft should be vacated because the State presented no evidence that the victims named in McGuirk's identity theft counts were real people.
The remaining facts in this case are essentially undisputed. McGuirk does not challenge the following findings of fact:
I. Detective Keeler had probable cause to arrest the defendant based upon a fraudulent check scheme.
II. Detective Keeler received an anonymous tip that the defendant was staying at the Day's Inn in Port Orchard. On November 2, 2004, Detective Keeler went to the Day's Inn and confirmed [that] the defendant was staying in Room 132. The Day's Inn clerk confirmed that the defendant was a long-time customer at the hotel and the clerk knows the defendant.
III. Keeler went to Room 132 and knocked on the door several times. Two to three minutes later, a voice asked, "who is there?" Keeler responded that it was the police and identified himself through the closed door. Keeler indicated that he needed to speak with the defendant. Approximately thirty seconds later, the defendant came to the door and opened it. This court finds that the defendant knew a police officer was at the door and opened the door voluntarily.
IV. Keeler indicated to the defendant that he needed to speak with him, and that the defendant "knew" why. The defendant stepped away from the open door, turned around, and walked into the room, leaving the door open. The Detective followed the defendant into the room, and again indicated that he needed to speak with him. The defendant gave no response, Detective Keeler placed him under arrest.
Clerk's Papers (CP) at 20-21.
The court also found that Detective Keeler said, "Glen, I need to talk to you. You know what it is about." Report of Proceedings (RP) (Mar. 17, 2005) at 3. After Keeler followed McGuirk a few feet into the small hotel room, he said, "We need to talk about the checks." RP (Mar. 17, 2005) at 3.
After arresting McGuirk, the police conducted a search of the hotel room and the immediate area around McGuirk. The trial court found that a backpack was located next to McGuirk. Keeler searched the backpack and found checkbooks, credit cards, and identification that were not in McGuirk's name.
McGuirk was charged with one count of first degree attempted identity theft, three counts of second degree identity theft, one count of first degree possession of stolen property, five counts of unlawful possession of payment instructions, four counts of second degree possession of stolen property, and three counts of forgery. McGuirk moved to suppress all evidence obtained in the search of the backpack. After a CrR 3.6 hearing, the trial court denied McGuirk's suppression motion. The trial court entered the following conclusions:
II. Defendant's movements and gestures reasonably conveyed consent to enter the room and Detective Keeler had a reasonable belief that the defendant had given him consent to enter the room. The defendant's actions constituted implied consent analogous to State v. Garcia, 997 F.2d 1273.
III. The State has established by clear and convincing evidence that the defendant gave Detective Keeler consent to enter the hotel room. IV. That the general rule of Payton v. N.Y., 445 U.S. 773 (1980), which prohibits warrantless entry into a home to make a felony arrest even if probable cause exist to arrest the suspect absent exigent circumstances or consent violates the Fourth Amendment, does not apply where permission to enter was granted.
V. For the foregoing reasons, the defendant['s] motion to suppress under CrR 3.6 is hereby denied.
CP at 21-22. McGuirk now appeals the denial of his suppression motion, and assigns error to finding of fact five and conclusions of law two, three, and five.
ANALYSIS I. Finding of Fact 5
McGuirk asserts that the trial court erred in finding that the backpack was located next to him. McGuirk argues that Keeler's testimony that, "I did a search of the room, quick search of just the immediate area just right around [McGuirk], and opened up a maroon backpack," only reveals the sequential order in which Keeler searched the room, not the proximity of the backpack to McGuirk. Br. of Appellant at 14 (citing RP (Mar. 8, 2005) at 9).
We review disputed findings of fact related to a suppression motion for substantial evidence. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999). Evidence is substantial if it is sufficient to convince a reasonable person of the truth of the finding. Mendez, 137 Wn.2d at 214. If substantial evidence supports challenged facts, the facts as found by the trial court are binding on appeal. State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994).
Substantial evidence supports finding of fact five. In its oral ruling, the trial court found that the hotel room where McGuirk was arrested was small. Keeler testified at the CrR 3.6 hearing that he only searched the area immediately around McGuirk. Further, in his statement of probable cause, Keeler stated that the backpack was sitting next to where Keeler sat McGuirk after his arrest. Because the trial court only found that the backpack was "next" to McGuirk and did not specify an exact distance between McGuirk and the backpack, sufficient evidence supports the finding.
II. Consent
McGuirk argues that the search of the backpack was unlawful because McGuirk did not consent to Keeler's entry into the hotel room. He asserts that McGuirk denied Keeler entry when he did not respond to Keeler's request to speak to him and that opening a door does not amount to consent. He argues that by stepping away from the door, McGuirk merely acquiesced to authority and that McGuirk was not informed of his right to refuse entry under State v. Ferrier, 136 Wn.2d 103, 960 P.2d 927 (1998).
The State, relying on State v. Raines, 55 Wn. App. 459, 462, 778 P.2d 538 (1989), contends that the trial court properly found that McGuirk gave implied consent when he opened the door after Keeler's requests to speak with him and walked into the room, leaving the door open.
A warrantless search of a home is constitutional if the householder voluntarily consents. Raines, 55 Wn. App. at 462 (citing State v. Hashman, 46 Wn. App. 211, 214, 729 P.2d 651 (1986)).
A refusal of admittance, express or clearly implied, is essential under such circumstances to make the entry by a police officer without a warrant illegal and in its absence [an officer] can be said to enter with the tacit acquiescence of the householder for the householder has failed to place his house and contents under the protection of the Fourth Amendment's protection against unreasonable searches and seizures.
State v. Sabbot, 16 Wn. App. 929, 938, 561 P.2d 212 (1977). The mere opening of a door in response to a knock by police officers does not amount to consent to enter. State v. Counts, 99 Wn.2d 54, 64, 659 P.2d 1087 (1983) (citing Scheneckloth v. Bustamonte, 412 U.S. 218, 248, 93 S. Ct. 2041, 36 L. Ed. 2d. 854 (1973); United States v. Martino, 664 F.2d 860 (2d Cir. 1981)).
The State bears the burden of establishing that consent was freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968). Whether consent is voluntary is a question of fact and only reversible if it was clearly erroneous. State v. Reichenbach, 153 Wn.2d 126, 132, 101 P.3d 80 (2004) (citing Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)), See State v. Bustamante-Davila, 138 Wn.2d 964, 981-82, 983 P.2d 590 (1999); United States v. Shaibu, 920 F.2d 1423, 1425 (9th Cir. 1990). While knowledge of the right to refuse consent is relevant, it is not a prerequisite to finding voluntary consent. State v. O'Neill, 148 Wn.2d 564, 588, 62 P.3d 489 (2003); State v. Nelson, 47 Wn. App. 157, 163, 734 P.2d 516 (1987). In considering whether consent was voluntary, the court may consider whether the defendant cooperated with officers. State v. Flowers, 57 Wn. App. 636, 645, 789 P.2d 333 (1990). Consent granted only in submission to a claim of lawful authority is not voluntary. O'Neill, 148 Wn.2d at 589 (quoting Schneckloth, 412 U.S. at 233).
McGuirk does not challenge the trial court's findings that he knew a police officer was at the hotel room door and that he opened the door voluntarily after thirty seconds. He also does not challenge the findings that, upon voluntarily opening the door, McGuirk stepped away from the open door and walked into the room, leaving the door open in front of Keeler. McGuirk also does not challenge the findings that Keeler twice informed him that he needed to speak to McGuirk. Unchallenged findings of fact are verities on appeal. O'Neill, 148 Wn.2d at 571.
In Raines, a suspected domestic violence victim opened the door and affirmatively gestured at officers to enter an apartment after they requested entry. The court held that the victim's affirmative act of stepping aside to allow the officers' entry amounted to more than mere acquiesce to authority and constituted an implied consent to enter. Raines, 55 Wn. App. at 462-63. In Bustamante-Davila, when a deportee stepped back from his open door and did not object to the police officers entering his home, his actions also amounted to an implied consent to enter. Bustamante-Davila, 138 Wn.2d at 981. In Garcia, the Ninth Circuit case relied on by the trial court, when the defendant said "okay" and nodded his head to police officers at his door after they said they would like to speak with him, the court also held that there was implied consent. United States v. Garcia, 997 F.2d 1273, 1277 (9th Cir. 1993).
Citing to State v. Garcia-Hernandez, 67 Wn. App. 492, 837 P.2d 624 (1992), McGuirk argues that although he did not expressly deny Keeler admittance into the hotel room, his denial of admittance to Keeler may be implied from his lack of response to Keeler's requests to speak with him. Garcia-Hernandez does not apply here because it concerns a person's reaction when confronted with an arrest warrant. RCW 10.31.040 allows officers to break open any outer or inner door, or windows of a dwelling house or other building, or any other enclosure, in order to make an arrest if, after notice of an officer's position and purpose, a party refuses admittance. The court in Garcia-Hernandez held that denial of admittance for purposes of RCW 10.31.040 may be implied from a lack of response. Garcia-Hernandez, 67 Wn. App. at 495. This holding does not apply here because Keeler was not acting under the authority of RCW 10.31.040.
McGuirk also argues that he was not informed of his right to deny consent under the "knock and talk" rule in Ferrier, 136 Wn.2d 103 (1998). The State is correct that Ferrier does not apply here. In this case, Keeler's intention was to arrest McGuirk and not to search the premises. Ferrier applies when police are searching for evidence, but that was not Keeler's intent here. Keeler went to the hotel to arrest McGuirk, not to search for evidence.
Raines and Sabbot remain good law in Washington. Accordingly, we hold that the trial did not err in finding that McGuirk gave implied consent when he did not refuse admittance to Keeler. McGuirk knew a police officer was at the door, requesting to speak with him. He voluntarily opened the door after Keeler's statements that he needed to speak with McGuirk and walked backward from the door into the hotel room. He did not expressly or impliedly refuse admittance. He also did not attempt to block or stop Keeler's entry. The trial court did not err in finding that McGuirk gave implied consent.
III. Search Incident to McGuirk's Arrest
McGuirk argues that the search was not a valid search incident to arrest because the backpack was not in McGuirk's control prior to his arrest. The State counters that the backpack was within McGuirk's immediate area, that the search incident to his arrest was valid, and that the trial court did not err.
A warrantless search is per se unreasonable under article 1, section 7 of the Washington Constitution, unless it falls within one of the exceptions to the warrant requirement. State v. Johnson, 128 Wn.2d 431, 446-47, 909 P.2d 293 (1996). One exception is a search incident to a valid arrest. Johnson, 128 Wn.2d at 447. A warrantless search incident to a valid arrest is limited to the arrestee's person and the area within his immediate control. Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969); see also Johnson, 128 Wn.2d at 451. The rationale underlying a search incident to arrest is the need to prevent the arrestee from obtaining a weapon or disposing of evidence. Chimel, 395 U.S. at 763; Johnson, 128 Wn.2d at 447. Any evidence that is lawfully seized incident to arrest may be used to prosecute the arrestee for any crime. State v. Jordan, 92 Wn. App. 25, 30, 960 P.2d 949 (1998).
An arrestee does not have to be in actual physical possession of an object for that object to be within his control. State v. Smith, 119 Wn.2d 675, 681, 835 P.2d 1025 (1992). An arrestee is in control of an object for purposes of a search incident to arrest as long as the object is within the suspect's reach immediately prior to arrest. Jordan, 92 Wn. App. at 29 (citing Smith, 119 Wn.2d at 681-82).
In Smith, our Supreme Court applied the warrant exception for a search incident to an arrest and held that police could lawfully search a fanny pack worn by the arrestee before his arrest. Smith, 119 Wn.2d at 681. During the arrest, the fanny pack fell from the arrestee and, even though the fanny pack remained in the exclusive control of the officer after the arrest, thereby eliminating the possibility that the arrestee could gain access to a weapon or destroy evidence, the court held that the subsequent search of the fanny pack incident to the arrest was proper. Smith, 119 Wn.2d at 682-83. Division One clarified that the scope of a search incident to arrest included purses, brief cases, and back packs. State v. Lowrimore, 67 Wn. App. 949, 959-60, 841 P.2d 779 (1992). The search of purses, brief cases, and back packs incident to arrest is lawful as the object searched was within the arrestee's control when she was arrested and if the events occurring after the arrest but before the search did not render the search unreasonable. Smith, 119 Wn.2d at 681. An object is within an arrestee's control if it is within her reach immediately prior to, or at the moment of, the arrest. Smith, 119 Wn.2d at 681-82.
The search of the backpack was lawful because it was within McGuirk's control prior to his arrest. Keeler testified that he only searched the area immediately around McGuirk, and that the backpack was "sitting next to where McGuirk was seated." CP at 81. It may be hard to justify all searches of arrestee's immediate area on the basis of safety or preserving evidence because the arrestees are often completely immobilized. However, our courts have adopted a bright line rule allowing officers to conduct a search incident to a valid arrest of the arrestee's person and the area within his immediate control. Johnson, 128 Wn.2d at 447. This rule provides relative certainty for arresting officers. We follow this rule and affirm.
We affirm the trial court's denial of McGuirk's suppression motion but, because the State concedes that McGuirk's convictions for identify theft must be vacated, we remand for recalculation of his sentence only.
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.
BRIDGEWATER, P.J. and ARMSTRONG, J., concur.