Appeal from Superior Court of Spokane County. Docket No: 94-1-00887-1. Date filed: 09/23/94. Judge signing: Hon. Harold D. Clarke JR.
Authored by Dennis J. Sweeney. Concurring: Philip J. Thompson, John A. Schultheis.
The opinion of the court was delivered by: Sweeney
SWEENEY, C.J. Scott Albert Manz called 911 at 3:30 in the morning during an argument with his girlfriend. When police arrived, Mr. Manz was yelling from inside the screen door. He allowed the officers to enter the house. Once inside, Officer William Marshall saw a marijuana plant. Mr. Manz was charged with possession of a controlled substance with intent to manufacture. Pretrial he moved to suppress the evidence. The court denied his motion. A jury found him guilty. He appeals. We affirm.
Mr. Manz first contends the court erred in denying his motion to suppress because the officers entered his house unlawfully. He claims he did not give the officers consent to enter.
We review findings of fact for substantial evidence. State v. Hill, 123 Wash. 2d 641, 647, 870 P.2d 313 (1994). Substantial evidence is a sufficient quantity of evidence to persuade a fair-minded, rational person of the truth of the finding. Id. at 644. We independently review the evidence. Id. at 646 (recognizing the trier of fact is in best position to assess credibility of witnesses, take evidence and observe demeanor of those who testify). Mr. Manz does not challenge the court's findings of fact. They are therefore verities on appeal. State v. Christian, 95 Wash. 2d 655, 656, 628 P.2d 806 (1981).
If a person is in a position to communicate refusal of admittance, and if the police can reasonably conclude entry was not refused, "then no invitation, express or implied, is necessary to make the [officers'] entry lawful.'" State v. Raines, 55 Wash. App. 459, 462, 778 P.2d 538 (1989) (quoting State v. Sabbot, 16 Wash. App. 929, 937-38, 561 P.2d 212 (1977)), review denied, 113 Wash. 2d 1036 (1990). Mr. Manz did not object to the officers' entry. The officers' movements in following Mr. Manz into the house was within the scope of Mr. Manz's implied consent. Given the fact that the officers were responding to a 911 domestic violence call, they had a duty to ensure the occupants of the house were safe. See State v. Lynd, 54 Wash. App. 18, 22-23, 771 P.2d 770 (1989). Their entry into the house was reasonable.
Mr. Manz next argues the officers coerced him into consenting to a search of the residence. He asserts Officer Marshall threatened to obtain a search warrant if he did not consent.
Consent to search a residence is valid following a threat to obtain a warrant so long as the scope or extent of the officer's authority to obtain the warrant was not misrepresented. State v. Smith, 115 Wash. 2d 775, 790, 801 P.2d 975 (1990); State v. Apodaca, 67 Wash. App. 736, 739-40, 839 P.2d 352 (1992), overruled on other grounds by State v. Mierz, 127 Wash. 2d 460, 901 P.2d 286 (1995). Here, Officer Marshall had grounds to obtain a search warrant. The officers did not coerce Mr. Manz into consenting to the search.
Mr. Manz further contends the court erred in holding that he knowingly and intelligently waived his Miranda *fn1 rights. In an unchallenged finding, the trial court found that the "statements made by [Mr.] Manz were given voluntarily and were not subject to Miranda warnings."
Miranda warnings are required when a suspect is subject to custodial interrogation or its functional equivalent. State v. Post, 118 Wash. 2d 596, 605, 826 P.2d 172 (1992), modified, 837 P.2d 599 (1992). A defendant is in custody when his freedom of movement is limited. State v. Sargent, 111 Wash. 2d 641, 649, 762 P.2d 1127 (1988). Custody for Miranda purposes is "narrowly circumscribed." Post, 118 Wash. 2d at 606. It requires a restraint on freedom of movement associated with a formal arrest. Id. at 606. The critical inquiry is whether a suspect's freedom of movement is restricted.
State v. Richmond, 65 Wash. App. 541, 544, 828 P.2d 1180 (1992).
Officer Marshall did not direct Mr. Manz to a certain area of the house. He did not tell or suggest to Mr. Manz that he could not leave. He did not handcuff Mr. Manz. He did not curtail Mr. Manz's freedom of movement to a degree associated with formal arrest. Mr. Manz's statements therefore were not subject to ...