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State v. Rosas-Miranda

Court of Appeals of Washington, Division 2

September 17, 2013

The State of Washington, Respondent,
v.
Elvia Rosas-Miranda, Appellant

Appeal from Clark Superior Court. Docket No: 11-1-00134-2. Date filed: 09/28/2011. Judge signing: Honorable Barbara D Johnson.

Catherine E. Glinski, for appellant.

Anthony F. Golick, Prosecuting Attorney, and Abigail E. Bartlett, Deputy, for respondent.

AUTHOR: Thomas R. Bjorgen, J. We concur: Joel Penoyar, J., Lisa Worswick, C.J.

OPINION

[176 Wn.App. 774] Bjorgen, J. --

¶ 1 Elvia Rosas-Miranda appeals her two convictions for unlawful possession of a controlled substance [176 Wn.App. 775] with intent to deliver; one involving heroin and one methamphetamine, each with a school bus stop enhancement. She alleges that the trial court erred in denying her motion to suppress her statements

Page 729

because the police did not give Miranda [1] warnings before questioning her. The State argues that Miranda warnings were not required because she was not in custody while questioned in her home during a consensual search. We agree with the State that she was not in custody. Thus, her statements to police are admissible in the absence of Miranda warnings, and the trial court did not err in denying her motion to suppress the statements. Accordingly, we affirm.

FACTS

¶ 2 On January 14, 2011, police officers arrested Carlos Rosas-Miranda for selling heroin. [2] Based on statements by Carlos and a search of his apartment, officers became interested in another apartment in the same complex, apartment AA11, because Carlos had lived there previously and continued to use the address to register his vehicles. The police suspected that someone living in apartment AA11 might be involved in selling drugs or that drugs and firearms would be present.

¶ 3 The police did not obtain a warrant to search apartment AA11. Instead, Detective Shane Hall from the Vancouver Police Department Drug Task Force knocked on the door of the apartment to attempt to obtain consent to a search. Hall was dressed in plain clothes but was wearing a tactical vest with the word " POLICE" on it. Report of Proceedings (RP) (Aug. 20, 2011) at 22. The vest included handcuffs, small tools, and a holster. Sergeant Pat Moore and another drug task force detective stood with Hall at the door. Additional officers were present but out of view. Angel [176 Wn.App. 776] Rosas-Miranda opened the door and identified himself. Angel told Hall that he spoke Spanish only, so Hall, who was fluent in Spanish, communicated with Angel in that language. Angel said that he lived in the apartment with his sister, Elvia, and a number of children. Hall explained to Angel that the police had arrested Carlos on drugs and weapons charges and that they were concerned that someone at apartment AA11 may be involved or there might be additional drugs or guns present. Angel stated, " No, there's not." RP (Aug. 10, 2011) at 17. Hall asked Angel if the police could search his residence, and Angel responded, " Yes, you can check." RP (Aug. 10, 2011) at 17. Hall told Angel that he needed to speak with all the adult residents, specifically Elvia, before searching the apartment.

¶ 4 Angel stepped back into his apartment out of Hall's view and called out for Elvia, who responded that she was in the bathroom. After a few minutes, Hall asked Angel if Angel could check on Elvia and see if she would be coming to the door. Angel went to check on Elvia, leaving Hall at the door. After a few minutes, Hall called out into the apartment asking whether they were going to return. Eventually, Angel and Elvia came to the door.

¶ 5 Hall explained to Elvia that the police had arrested Carlos for drugs and weapons charges and that they were at Elvia and Angel's apartment to investigate whether they had any weapons or drugs. Hall advised Elvia and Angel that the police wanted to search their apartment, but that they had a right to refuse consent and could revoke or limit consent at any time. Hall then asked if Elvia and Angel were still willing to permit the search and they both said, " [S]í ," the Spanish word for " yes." Suppl. Clerk's Papers (SCP) at 86.

¶ 6 Once Elvia and Angel consented to the search of their apartment, Hall asked to speak with them in the front living room, while other officers searched the apartment. Eight or nine officers participated in the search, which took approximately 90 minutes. During the search, Hall remained [176 Wn.App. 777] in the front living room with Elvia, Angel, and the children, but he did not tell them to stay in the living room or to stay out ...


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