En Banc. Durham, J. Dore, C.j., Brachtenbach, Dolliver, Andersen, Smith, and Guy, JJ., and Callow, J. Pro Tem., concur. Utter, J., dissents by separate opinion; Johnson, J., did not participate in the disposition of this case.
Michael Duane Earls was convicted by jury of one count of premeditated first degree murder and was sentenced to 340 months in prison. Earls appeals his conviction, asserting that the trial court erred in denying his motion to suppress the confession he made to the police. He claims that the statements were made after an invalid waiver of his rights under article 1, section 9 of Washington's constitution, which protects against self-incrimination. Holding that Earls' waiver was made freely, knowingly, and voluntarily, we affirm.
Earls does not challenge the sufficiency of the evidence sustaining his conviction other than as it pertains to the issue of his waiver. Thus, we discuss only those facts relevant to the trial court's denial of Earls' motion to suppress his statements.
On March 31, 1987, Roy Alaniz was shot while in his home in Sedro Woolley.*fn1 Alaniz was taken to a hospital, where he died the next day from a gunshot wound to the head. Detective Kenneth Rosencrantz of the Sedro Woolley Police Department was in charge of the investigation of the Alaniz death, which was determined to be a homicide. On December 7, 1987 a confidential informant told the Sedro Woolley Police Department of a possible suspect in the Lynnwood area. This information led them to talk with
Earls' girl friend, Cindy Neal. Based on the interview with Neal, Rosencrantz determined that there was probable cause to arrest Earls for the murder of Alaniz. On January 21, 1988, at approximately 12:30 p.m., Detective Gary Northrup of the Lynnwood Police Department, accompanied by Rosencrantz, arrested Earls. Northrup advised Earls of his constitutional rights at the time the arrest was made. Earls was then taken to the Lynnwood Police Department.
The parties have stipulated that Earls called his ex-wife, Valerie LaPier, from the jail at 1:50 p.m. that same day. Earls testified that he told the booking officer that he wanted to call LaPier so that she could contact an attorney. He also testified that the call was made in the presence of the booking officer and that the booking officer dialed the phone. Rosencrantz testified that he was not sure if the booking officer usually dials these calls. Because Earls did not mention this call to his attorney until shortly before the April suppression hearing, defense counsel did not question police department personnel about it until some 3 months after Earls' arrest. The parties stipulated that the booking officer has no independent recollection of this call.
Earls further testified that he told LaPier that he was at the police station and that he said, "I don't know what they have me here for but I need a lawyer."*fn2 He testified that LaPier told him that she was quite sure she could find someone.
Valerie LaPier testified that she received a call from Earls shortly after lunch on the 21st, and that Earls said that he was in jail charged with murder and that he needed an attorney. LaPier got the name of Robert Leen from an
attorney at the law firm where she is employed as a paralegal. Because Leen was not in his office when she called, she left a message. LaPier testified that Leen returned her call between 4:30 and 5 p.m. LaPier then told Leen that her ex-husband was in jail and charged with murder. She said that Leen said that he would "call and try to find out what was going on."
Robert Leen testified that, while he did not recall the specific date, he did receive a call from Valerie LaPier. He confirmed that LaPier told him that a boyfriend was charged with murder and that she asked if he was interested in representing him. His response to her was "yes, I would -- I needed to find out what was happening." He then called the Lynnwood Police Department. Leen testified that he identified himself and stated that he was calling for Earls and that a friend had contacted him on Earls' behalf. He asked to speak to Earls, but was told that he could not. He then asked to leave his name and number so the police could have Earls call him back. He testified that he called the station before 5 p.m., but could not be more specific about the time.
Leen did not say that he was Earls' attorney or that he did not want the police to talk to Earls. "All I ever represented was that I was contacted by his family or friends." He made no attempt to go to the station or see Earls firsthand. Leen did not consider himself retained at that point. LaPier also testified that Leen was never hired. Earls does not claim that Leen was ever retained to represent him.
Leen testified that Earls called him back at 8 or 9 o'clock that evening and told Leen that he had confessed and he did not think there was anything Leen could do. Earls testified that he did not call Leen until the next day. Leen then spoke to LaPier who told him that she was not sure if they would hire an attorney or try to get a public defender.
Leen heard nothing further regarding Earls until about 3 months later. He had not made any notes regarding the calls. Leen testified that his first impression was that Earls
was being interviewed by the police when he called. However, he then testified that he could not recall for sure whether he had been told that the police were interviewing Earls, that Earls was unavailable, or that calls could not be transferred to the jail.
At about 4:43 p.m. on the day of his arrest, Earls was taken from his cell and brought into a private office at the Lynnwood Police Department to be interviewed by Detective Rosencrantz. No one else was present in the room. Rosencrantz testified that he read Earls his constitutional rights from a pocket rights card at the beginning of the interview. It is undisputed that Rosencrantz re-advised Earls of his constitutional rights at 5:21 p.m. and that Earls signed a written waiver at that time.
At 5:25 p.m., Rosencrantz began a taped interview. Immediately prior, an agreement was reached that Earls would not be charged with aggravated first degree murder, which carries a penalty of death or life in prison without parole. At the beginning of the tape, Earls was again advised of his rights. It is undisputed that Earls did not invoke his constitutional rights at any time during the interview with Rosencrantz. Earls testified that during the interview he at no time asked for an attorney, stated that he was waiting for a call from an attorney, or in any way indicated that he did not want to answer questions.
Rosencrantz testified that he was not in the booking room when Earls called LaPier nor was he aware that Earls had called LaPier to see if she could get an attorney. While he was aware that Earls had made a call, he had no knowledge of the content of the call. Rosencrantz was not made aware of Leen's call until 2 weeks before the suppression hearing.
The parties have stipulated that no one at the police station has independent recollection of Leen's call coming in; that there is no record of the call because the message pad used at the booking desk is routinely destroyed every third day or so, unless a request is made to save a particular
message; and that incoming calls can be transferred back to the jail.
Prior to trial, Earls filed two motions to suppress, one as to his statements and another as to all the evidence resulting from his arrest, which he contended was illegal. Earls challenged the existence of probable cause for his arrest and the authority of the Lynnwood Police Department to make the arrest.
After a hearing, the trial court denied both motions. In so doing, the court signed two orders. The first referred specifically to the CrR 3.5 hearing, which was held to determine the admissibility of the statements. The second dealt with both motions. The court specified that the two orders "should be read together and not separately" because, while the phone call by Leen was addressed only in the second order, facts relevant to the voluntariness of Earls' statement are contained in both.
In the first order, the court listed the following undisputed facts: At the time of his arrest, Earls was advised of his constitutional rights by the Lynnwood police; at 4:43 p.m., Earls was taken from his cell to be interviewed by Rosencrantz; at 5:21 p.m., Rosencrantz re-advised Earls of his constitutional rights and Earls executed a written waiver; at 5:25 p.m., the taped interview was started and Earls was advised of his rights on the tape; Earls never invoked his constitutional rights during the interview; and the interview tape was made after an agreement was reached not to charge Earls with aggravated murder. The testimony given at the hearing conflicted as to whether or not Earls was under the effect of barbiturates during the interview and was advised of his rights when the interview began at 4:43 p.m. There was also a dispute as to who first suggested that Earls give a statement in exchange for a reduced charge.
The trial court entered the following conclusions: There was insufficient evidence that Earls was intoxicated or that his will was affected by drugs; Earls was verbally advised of
his rights at 4:43 p.m.; Earls was the first to suggest a confession in exchange for avoiding the death penalty or a sentence of life in prison without parole; Rosencrantz did not threaten Earls with the death penalty or life in prison without parole unless he confessed; and Earls' statement was not induced by threat or promise. Earls has not assigned error to any of these conclusions.
The court went on to conclude that Earls' statement to Rosencrantz was "given freely and voluntarily after proper advisement of constitutional rights and a knowing waiver of those rights" and Earls "never exercised any of his rights during the interview with Detective Rosencrantz." The court ordered that Earls' "oral and written statements made to Detective Rosencrantz between 4:43 p.m. and 7:56 p.m. on January 21, 1988 [were] admissible at the time of trial."
The second order signed by the court dealt with the issues of probable cause, the Lynnwood police's authority to arrest Earls, and the validity of Earls' waiver. As to waiver, the court addressed three areas of dispute -- Earls' possible intoxication, inducement of his statements by promise or threat, and the effect of the phone call by Leen on the validity of his waiver.
As to the intoxication issue, the court found insufficient evidence that Earls was intoxicated or that his will was affected by drugs. The court further found that Earls' statement was made after he initiated the request for a first degree murder charge, rather than aggravated first degree murder, and that the statement was not induced by any threat or promise. Earls has not assigned error to either of these findings.
The third area surrounding the defendant's statement involves a phone call made slightly before 5 p.m. on January 21, 1988 to the Lynnwood Police Department. The call was made by Robert Leen who identified himself as an attorney contacted by Michael Earls' family and requested to talk to the defendant. When told the defendant was unavailable (possibly because he was talking to detectives), Mr. Leen simply left a
message for the defendant to call when he was available. Mr. Leen made no attempt to contact the officers involved or to stop the interrogation. He asserted no rights on behalf of the defendant or make [ sic ] any effort to clarify the circumstances.
Under the facts and circumstances before the Court, the timing of Mr. Leen's attempted contact, the manner in which it was made and the previous knowledge of the defendant do not negate the defendant having knowingly, freely and voluntarily waived his constitutional rights. This finding is further supported by Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986).
Clerk's Papers, at 107-08. The court concluded that the statement was given freely and voluntarily after Earls executed a knowing waiver of his constitutional rights and ordered that the statements were admissible at trial.
Earls assigns error only to the trial court's finding that Leen's call did not negate the validity of Earls' waiver and the conclusion that his statements were therefore admissible.*fn3 Earls does not contend that he was unaware of his rights, that he was unable to understand them, or that he was incompetent to waive them.*fn4 Nor does he argue that he invoked his right to an attorney by calling LaPier, while at the same time not telling Rosencrantz that he had attempted to contact an attorney, despite being advised of his rights three times prior to making the statements. Rather, he urges this court to hold that, as a matter of state law, an otherwise valid waiver of constitutional rights is
vitiated if police officers do not inform a suspect of the efforts of an unretained attorney to contact him.
As a threshold matter, it is essential that we clarify exactly which constitutional provisions are at issue. This need for precision is especially crucial when we are asked, as in this case, to interpret our state constitution to afford broader protection than its federal counterpart. When a party urges this court to undertake such an independent state analysis, it is important that we identify on which provision the party relies and the extent of additional protection being urged.
[1, 2] Earls complies with this, but only in the most general sense. He alleges that this court should hold that his waiver is invalid because his constitutional right to counsel has been violated. However, as is frequently the case when a party's right to counsel is at issue, Earls appears to have blended the right to counsel under the Fifth and Sixth Amendments (and their state constitution counterparts) into a generic right to counsel argument. This is an especially easy trap to fall into when one is arguing the validity of a waiver, rather than a direct violation of the right to counsel. Here, Earls' waiver was made and his statement was given before formal charges were filed. Thus, his right to counsel under the Sixth Amendment and Const. art. 1, § 22 (amend. 10) had not yet attached.*fn5 Earls did, however, have a Fifth Amendment right to counsel at the
time of his waiver because it was given during a custodial interrogation. The right to have counsel present during custodial interrogation is indispensable to the protection of the Fifth Amendment right against self-incrimination. Miranda v. Arizona, 384 U.S. 436, 469, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A.L.R.3d 974 (1966). Accordingly, our discussion is limited to Earls' right to counsel under the Fifth Amendment and our state counterpart, Const. art. 1, § 9.
Earls asks that we decide the validity of his waiver under our state constitution, rather than federal law. He claims that article 1, section 9 should be interpreted as more protective than its federal counterpart. Article 1, section 9 provides:
No person shall be compelled in any criminal case to give evidence against himself . . .
(Italics ours.) The Fifth Amendment provides:
 Whenever a claim of right is asserted under the Washington Constitution, the first step is to determine if the asserted right is more broadly protected under the state constitution than it is under federal constitutional law. Forbes v. Seattle, 113 Wash. 2d 929, 934, 785 P.2d 431 (1990). Earls urges this court to make this determination using the analysis set forth in State v. Gunwall, 106 Wash. 2d 54, 720 P.2d 808, 76 A.L.R.4th 517 (1986).*fn6 However, resort to the Gunwall analysis is unnecessary because this court has already held that the protection of article 1, section 9 is coextensive with, not broader than, the protection of the
Fifth Amendment. State v. Moore, 79 Wash. 2d 51, 483 P.2d 630 (1971).
In Moore, appellant challenged the constitutionality of Washington's implied consent law contending that it impermissibly impliedly waived his privilege against self-incrimination.*fn7 The court noted, and appellant agreed, that the privilege against self-incrimination embodied in the Fifth Amendment extends only to testimonial or communicative evidence and does not protect an accused from being the source of real or physical evidence against himself. Moore, at 55 (citing Schmerber v. California, 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826 (1966); United States v. Wade, 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926 (1967)). Schmerber held that blood tests to determine alcoholic content are not testimonial or communicative in nature and, thus, compelling such tests does not violate the Fifth Amendment. Schmerber, at 765. However, appellant urged the court to hold that compelling a Breathalyzer test violated his privilege against self-incrimination under article 1, section 9.
Appellant argued that the difference in language between the two provisions should be interpreted as granting broader protection under article 1, section 9. The court assessed the textual difference in the two provisions as follows: [Moore] presents an articulate argument for the proposition that we are not bound to place the same interpretation on our state constitutional privilege against self-incrimination as has been placed on that contained in the United States Constitution. He reasons that our provision, which is worded in terms of giving evidence, should be interpreted by this court to include physical evidence because our provision is meant to grant a broader protection than that granted by the Fifth Amendment. We are not persuaded, however, that the difference in language between the two constitutional provisions is determinative.
While it may be granted that the words "evidence" and "witness" are not synonymous in terms of standard dictionary definition, this court must interpret specific words of the state constitution in consonance ...