Appeal from Superior Court of Benton County. Docket No: 94-1-00347-3. Date filed: 09/23/94. Judge signing: Hon. Duane E. Taber.
Authored by Dennis J. Sweeney. Concurring: Ray E. Munson, John A. Schultheis.
The opinion of the court was delivered by: Sweeney
SWEENEY, C.J. Even a consensual search can be invalid if police obtain consent following an unlawful seizure. State v. Soto-Garcia, 68 Wash. App. 20, 27, 841 P.2d 1271 (1992). Police stopped Rafael Gonzalez because his license plate was not illuminated. He agreed to a search of his car. They found cocaine and heroin. The question here is whether the nature of his arrest vitiates his consent to search. We conclude that it does not and affirm.
The facts are undisputed. Very early on the morning of July 10, 1994, Officer Brian Zinsli saw Mr. Gonzalez's car drive by with an unilluminated license plate. Officer Zinsli stopped the car. Mr. Gonzalez jumped out of the driver's seat and met Officer Zinsli at the back of the car. Most people remain in the car following a stop. Officer Zinsli was therefore concerned and patted Mr. Gonzalez down for weapons. None were found.
Mr. Gonzalez did not have a driver's license. Nor did he have any other identification. He wrote the name "Miguel Islas" on a piece of paper and offered it to the officer as his name. Officer Zinsli asked if he owned the car. Mr. Gonzalez said he borrowed it from a good friend. But he could not remember the friend's name. He also was not sure whether the car's registration was inside.
Officer Wayne Meyer arrived. Using a flashlight, he scanned the inside of the car, without opening any doors. He saw a small brown package on the front seat which he described as a two-inch square of brown paper bag twisted around a marble-sized object. Based on his 14 years of police experience, he thought the package contained narcotics. He asked Mr. Gonzalez for permission to search the car. Officer Meyer understood Mr. Gonzalez to say "no" meaning he did not mind. Officer Zinsli understood Mr. Gonzalez to say something like "Yeah, go ahead, sure."
Officer Zinsli ran a check on the car and found that it had not been reported stolen. Officer Meyer retrieved the marble-sized package, opened it and concluded it contained drugs. He then told Officer Zinsli they had probable cause to arrest Mr. Gonzalez. Later, Officer Zinsli also found a cigarette pack, which contained bindles, under the driver's seat. Field tests confirmed that the packages contained cocaine and heroin.
At his CrR 3.6 hearing, Mr. Gonzalez admitted that he had consented to the search. The court found that the traffic stop was reasonable. It further found that Officer Meyer asked to search the car because he recognized that the marble-sized package probably contained narcotics. The court concluded that Officer Meyer's suspicions were sufficient to justify further investigation. A motion to suppress was denied. At trial, the drugs were admitted into evidence. Mr. Gonzalez was convicted by a jury of two counts of possession.
Mr. Gonzalez contends Officer Meyer's search request was not justified by the traffic violation and he contends his consent was not voluntary.
We begin by noting the general rule that a search without a warrant is per se illegal unless it falls within an established exception. State v. Lopez, 70 Wash. App. 259, 268, 856 P.2d 390 (1993), review denied, 123 Wash. 2d 1002, 868 P.2d 871 (1994). Consent is an exception. State v. Cantrell, 124 Wash. 2d 183, 187, 875 P.2d 1208 (1994). But the consent must be voluntary. The State must prove it is voluntary by clear and convincing evidence. Id. at 188; State v. Flowers, 57 Wash. App. 636, 645, 789 P.2d 333, review denied, 115 Wash. 2d 1009, 797 P.2d 511 (1990). The court's determination that consent is, or is not, voluntary is guided by a number of considerations: whether Miranda *fn1 warnings were given, the consentee's level of education and intelligence, and whether police advised that consent could be withheld. State v. Smith, 115 Wash. 2d 775, 789, 801 P.2d 975 (1990). No one factor is determinative. And neither the Miranda warnings nor the knowledge of the right to refuse consent are prerequisite to a voluntary consent. Smith, 115 Wash. 2d at 789.
Here, our analysis is simplified. Mr. Gonzalez admitted both at the suppression hearing and at trial that his consent to search was freely and voluntarily given. Indeed, his defense at trial was that he gave consent because he did not know the drugs were there. The trial court's finding that the consent was voluntary is then supported by clear and convincing evidence. Cantrell, 124 Wash. 2d at 188.
But even a voluntary consent may be invalid, if it was obtained through exploitation of an illegal detention. Soto-Garcia, 68 Wash. App. at 27. Police may detain a suspect for a traffic infraction only for the time reasonably necessary to verify the driver's identity; the status of the driver's license, insurance identification card, and the vehicle's registration; and to complete a notice of infraction. RCW ...