Appeal from SUPERIOR COURT BENTON COUNTY. Superior Court No: 94-1-00454-2 (Armenta). Superior Court No: 94-1-00453-5 (Cruz). Date filed in Superior Court: 11/23/94. Superior Court Judge signing: DENNIS YULE.
Petitions for Review Granted February 6, 1997,
Author: Ray E. Munson. Concurring: Dennis J. Sweeney. Dissenting: John A. Schultheis
The opinion of the court was delivered by: Munson
MUNSON, J. --The issue here is whether these defendants were unlawfully seized, making their consent to search involuntary. We find they were not and we reverse and remand for trial.
Hubert Armenta and David Cruz approached Officer G.J. Randles at a truck stop around noon on a Sunday. They told him their car would not start and asked if he knew of an open automobile repair shop. The officer replied that he did not know of any repair shop open on Sunday, but offered to take a look at their car himself. The men accepted his offer.
After they led him to their car, Officer Randles asked them for identification. Mr. Armenta handed over an Arizona driver's license. Mr. Cruz told Officer Randles he had lost his wallet in Idaho and did not have identification.
Noticing a bulge in Mr. Cruz's back pants pocket, the officer asked if that was his wallet. Mr. Cruz answered "no," then pulled from the pocket a large roll of money tied with rubber bands. Officer Randles asked how much money was there and Mr. Cruz replied that it was $1,000. Asked where he got the money, Mr. Cruz said he had earned it working on a ranch in Seattle. He said he had recently cashed his paycheck, but did not have the pay stub and could not remember the name of the ranch. Officer Randles asked Mr. Cruz his name and birth date. Mr. Cruz said he was Luis Perez Gonzalez.
Mr. Armenta also pulled out three rolls of money and showed them to the officer, who asked how much was there. Mr. Armenta told him each bundle contained $1,000. Asked where he had obtained the money, Mr. Armenta answered he had sold a car. He told Officer Randles he had no receipt from the sale but that he still had the title to the car.
Officer Randles called in the names and birth dates for Mr. Armenta and Mr. Cruz. *fn1 The dispatcher told him Mr. Armenta's driver's license had been suspended in Arizona and there was no record of the name Mr. Cruz had given. The car was listed in Mr. Armenta's name. Officer Randles called dispatch for backup, locked the $4,000 in his patrol car and asked Mr. Armenta if there were weapons or drugs in his car. Mr. Armenta said "no." The officer asked something like, "Do you mind if I take a took? You do not have to let me." Mr. Armenta told him to go ahead.
Officer Randles searched the passenger compartment where he found only a pack of Zig-Zag cigarette papers. He looked up through a car window and saw Mr. Cruz holding an opened pocket knife with a blade approximately two and one-half to three-inches long. The officer approached Mr. Cruz, told him to close the knife and to hand it over along with any other weapons. Mr. Cruz complied and gave the officer two pocket knives.
Officer Randles frisked both men and did not find additional weapons. He asked Mr. Armenta if he could search in the car's trunk, adding that Mr. Armenta did not have to permit the search. Mr. Armenta said to go ahead, and unlocked the trunk himself. Hidden under the spare tire, Officer Randles found 75 baggies of cocaine, each weighing about 3.5 grams. *fn2 The back-up officer arrived, Mr. Armenta and Mr. Cruz were arrested, and each was told he had the right to an attorney.
The men later admitted they used the car to transport cocaine from Idaho to Seattle and earned $4,000 for the delivery. Mr. Armenta also admitted he gave Officer Randles permission to search his car. He later testified he thought he would not get his money back from Officer Randles unless he gave the police permission to search.
Consent to a search is a recognized exception to the Fourth Amendment warrant requirement. State v. Hastings, 119 Wash. 2d 229, 830 P.2d 658 (1992). The consent may not be valid if it is obtained as the result of an unlawful seizure. State v. Soto-Garcia, 68 Wash. App. 20, 23-24, 841 P.2d 1271 (1992). A person is seized, for purposes of the Fourth Amendment if, under all the circumstances, the conduct of the police would cause a reasonable person to believe he was not free to terminate the encounter. Soto-Garcia, 68 Wash. App. at 23-24; see State v. Nettles, 70 Wash. App. 706, 855 P.2d 699 (1993), review denied, 123 Wash. 2d 1010, 869 P.2d 1085 (1994).
Officer Randles did not seize Mr. Armenta and Mr. Cruz merely by asking for identification and, upon being shown large sums of cash, asking for some explanation. But once he had locked their money in the patrol car, they could ...