IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

COLLEEN MUIR,

Appellant.

.)

NO. 72369-3-1

DIVISION ONE

UNPUBLISHED OPINION

FILED: April 13,2015

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Lau, J. — Colleen Muir was convicted of possession of methamphetamine with

intent to deliver. On appeal, she argues (1) the trial court erred by failing to enter

written findings after a suppression hearing as required by CrR 3.6, and (2) the trial

court should have suppressed the methamphetamine because her consent to the

search of her safe was invalid since it was the product of an unlawful seizure. Because

the trial court's oral ruling is sufficiently comprehensive to allow a meaningful review of

the issues and Muir was not seized before granting consent, we affirm the judgment and

sentence.
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FACTS

Testimony at the CrR 3.6 suppression hearing shows the following: On

February 7, 2013, Colleen Muir was a passenger in a truck driven by James Mclntyre in

Bremerton, Washington. Muir and Mclntyre parked and entered a small convenience

store. Police arrived and entered the store where they arrested Mclntyre on an

outstanding warrant. In a search incident to arrest, they discovered hypodermic

needles commonly used for intravenous drug use.

Detective Aaron Elton learned that officers found the needles while searching

Mclntyre. Detective Elton stood outside, looked into the truck, and saw Mclntyre's

backpack in the truck bed.

Muir remained in the store after Mclntyre's arrest. Detective Elton testified that

Muir was "just standing there. It's a pretty small store. So [Muir] [is] standing there. I

contacted her." RP (May 28, 2013) at 10. Detective Elton knew she was the passenger

in the truck so he asked for her name and she told him. He did not ask her for

identification or driver's license.

Detective Elton testified that the both of them walked out of the store together.

He did not tell her to come outside with him. He testified that he did not request or issue

any commands, direct herto stay, or physically touch her. Detective Elton testified that

shortly after Muir left the store she sat down on the curb. He recontacted her to clarify

which of the items he saw inside the truck belonged to her so he "could gain consent

from both parties to search the truck." RP at 12.

Detective Elton asked Muir for consent to search the truck. Muir said it was up to

Mclntyre. Detective Elton left and spoke to Mclntyre, leaving Muir unattended.

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Mclntyre consented to the search but said it was up to Muir because the truck belonged

to her boyfriend. Detective Elton reported back to Muir and told her Mclntyre had

consented but that it was her decision. Muir consented to a search of the truck.

Detective Elton said that from outside the truck he could see a small, oblong, flat

safe with a locking mechanism. He could also see handbags and a cell phone on the

driver's seat. Detective Elton asked Muir ifshe owned any of the items. Muir said she

purchased the safe that morning for $20. She denied ownership of the other items.

Detective Elton described the tone of the contact with Muir at this point as

"conversational." RP at 14. He described Muir's demeanor as normal and her

responses to his questions as appropriate.

Detective Elton and another officer searched the truck. Detective Elton

discovered a methamphetamine pipe in a bag that neither Mclntyre nor Muir claimed to

own. He asked Muir for permission to open the safe. She denied knowledge of the

combination, but she said that if he was able to, he could open it. Detective Elton said

he noticed that the combination was set to the numbers 1-9-7-6, which he considered

peculiar. He moved the combination one number to 1-9-7-5 and the safe opened. He

found a scale and methamphetamine inside.

Detective Elton arrested Muir and advised her of her Miranda1 rights. She

responded that she understood. He then asked her for permission to search her purse,

and she agreed. Muir said that Mclntyre handed her methamphetamine in the store.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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Detective Elton looked in the purse and discovered methamphetamine wrapped in a

$20 bill.

On cross-examination, Detective Elton testified that he may have told Muir he

wanted to talk with her outside of the convenience store. He testified that there were

two marked and two unmarked police vehicles present but that none blocked the truck.

Muir testified that Detective Elton first encountered her in the store and asked to

speak with her outside. Once outside, Muir stated that Detective Elton said, "Well, why

don't you have a seat." RP (May 28, 2013) at 31. Muirsaid it was about 15 minutes

from the time she sat down to the time Detective Elton opened the safe. She testified

that Detective Elton asked her ifshe planned on buying drugs anywhere and where she

would go to purchase them. He also asked her where she would go to buy heroin if she

wanted to purchase it.

Muir also testified that Detective Elton asked her three times for consent to

search the truck and that she declined his requests. She stated that when he left to

speak with Mclntyre, he was out of her view and she did not know where he went.

According to Muir, when Detective Elton asked if he could search the safe she

said that she did not have the combination. She testified that she did not feel free to

leave during the encounter because her purse was on the ground and officers were in

the area.

Trial Court's Oral Findings of Fact and Conclusions of Law

After the CrR 3.6 hearing, the trial court denied Muir'ssuppression motion and

determined that no unlawful seizure occurred, the consent to search was voluntary, and

Detective Elton testified credibly.
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Ms. Muir testified that while she was in the store, she was approached by

Officer Elton, who said that he would like for me to come outside so he can talk

to me. He didn't—the testimony is not that he ordered her to come outside or

otherwise indicated to her to come outside or touched her elbow and guided

outside. The evidence is he would like for me to come outside so he can talk to

me. Got her outside. Asked her her name. Ms. Muir's testimony is he asked her

why don't you have a seat. That's not an order to sit on the curb. It's not a

directive. It's more like an invitation. I'm certain that Officer Elton wanted her to

sit on the curb and probably didn't want her to leave. But the—it was phrased as

a request. Only about ten or 15 minutes elapsed between the time that Officer

Elton asked her to go outside and the time that he seized the safe.

Officer Elton did not rebut Ms. Muir's testimony that he was asking her

information about the drug trade. He probably did. That doesn't make the

situation custodial. Officer Elton might have been on a fishing expedition. But

there's nothing wrong with a fishing expedition, as long as you get consent. A

fishing expedition without consent is illegal.

He did ask for consent three times, but it wasn't a badgering attempt. He

asked for consent the first time, and Ms. Muir said: You'll have to ask Mr.

Mclntyre, because it's not my truck. So Officer Elton testified that he wants

consent from everybody in that truck, which is, Ithink, a prudent thing to do. So

he goes and asks Mr. Mclntyre. Mr. Mclntyre says yes. So he comes back and

asks the second time, and she says yes.

Importantly, when he went—when Officer Elton asked—after Officer Elton

asked for consent from Ms. Muir the first time, he, according to Ms. Muir, left to

go talk to Mr. Mclntyre and was out of her view, during that period of time.

Certainly, it's not a true custodial interrogation or custodial matter when the

officer walks off and he's outside your view. Iwould think of no clearer invitation

to walk off.

So Ifind that Ms. Muir was not seized, nor was she in custody at the time

that she was asked for consent. I don't think that her consent was the product of

coercion or duress.

The one area of disagreement is that Officer Elton says that when he

asked for her permission to search—to open the safe, his testimony was, I don't

know the combination but yes. Her testimony is, I don't have the combination to

it, period. Ofthose two responses, Ithink it is more likely—well, Ithink that

Officer Elton's version of the conversation rings more true. Ifyou're going to

remark that you don't have the combination, the—I think the more rational,

conversational way to phrase itwas "yes but", as opposed to, I don't have a

combination, which is more or less nonresponsive. Ifind that the greater weight

of the evidence is that Officer Elton received a response of, Yes, but I don't have

combination to it, and I'll rule that it was consent. Thereafter, Ms. Muirtestified

that the mood changed. And I have no doubt that it did. But importantly, she

also testified that she would have felt free to leave without the truck.

Ifind, by the greater weight of the evidence, that the consent was not a

result—well, that she was—I find by the greater weight of the evidence that Ms.

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Muir's person was not illegally seized; and that her consent was not the product

of illegal seizure, duress, or coercion; and that she did, in fact, consent to the

search of the safe.

Any questions?

RP (May 28, 2013) at 52-55.

After a bench trial on stipulated facts, Muir was convicted of possession of

methamphetamine with intent to deliver. Muir appeals.

ANALYSIS

CrR 3.6 Findings

Muir argues the trial court's failure to enter written findings after the suppression

hearing requires reversal or remand. We disagree. A court must enter written findings

and conclusions following a suppression hearing. CrR 3.6(b). Those findings and

conclusions are generally considered necessary for appellate review. State v. Head,

136Wn.2d 619, 622-23, 964 P.2d 1187(1998). We may overlook this failure where the

court clearly and comprehensively states the basis of its opinions orally. State v. Cruz,

88 Wn. App. 905, 907-09, 946 P.2d 1229 (1997); State v. Smith. 68 Wn. App. 201, 208,

842 P.2d 494 (1992). Here, the trial court did not file written findings following the

suppression hearing. But the record leaves no doubt that the court's oral ruling clearly

and comprehensively explained the basis for its findings of fact and conclusions of law.

Our review in this case is not hampered by the absence of written findings and

conclusions.

Seizure

Muir contends, "[0]nce Elton asked or invited Muir to sit down and repeatedly

asked to search the truck and the safe, the contact intruded into Muir's sphere of

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privacy in violation of Article 1, § 7 of the Washington State Constitution." Appellant's

Br. at 13.

It is a well-recognized rule that a warrantless search is per se unreasonable

under both the Fourth Amendment and article I, section 7 of our state constitution

unless the search falls within one or more specific exceptions to the warrant

requirement. State v. Ross. 141 Wn.2d 304, 312, 4 P.3d 130 (2000).

Consent is one of the narrow exceptions to the Washington State Constitution's

prohibition against warrantless searches. State v. Hendrickson. 129 Wn.2d 61, 71, 917

P.2d 563 (1996). For consent to be valid, the consent must be free and voluntary, the

person consenting must have the authority to consent, and the search must notexceed

the scope of consent. State v. Thompson. 151 Wn.2d 793, 803, 92 P.3d 228 (2004). If

the free and voluntary character of the consent is challenged, the State must prove by

clear and convincing evidence that the individual consented freely and voluntarily, not

as a result of duress or coercion. State v. Smith, 115 Wn.2d 775, 789, 801 P.2d 975

(1990). Clear and convincing evidence existswhen the evidence showsthe ultimate

fact at issue to be highly probable. In re Dependency of K.S.C.. 137Wn.2d 918, 925,

976P.2d 113(1999).

The voluntariness of a consent to search is a question of fact to be determined

by considering the totality ofthe circumstances surrounding the alleged consent. State

v. Shoemaker. 85 Wn.2d 207, 211-12, 533 P.2d 123 (1975). An illegal seizure may

vitiate voluntary consent. See State v. Armenta. 134Wn.2d 1, 16-17, 948 P.2d 1280

(1997).
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Whether the police have seized a person is a mixed question of law and fact.

State v. Harrington. 167 Wn.2d 656, 662, 222 P.3d 92 (2009). Challenged findings

entered after a suppression hearing that are supported by substantial evidence are

binding, and where the findings are unchallenged, they are verities on appeal. State v.

O'Neill. 148 Wn.2d 564, 571, 62 P.3d 489 (2003). Muir does not challenge that

substantial evidence supports the trial court's findings of fact. We therefore treat the

court's findings as verities. We review conclusions of law entered by the trial court at a

suppression hearing de novo. State v. Carter. 151 Wn.2d 118, 125, 85 P.3d 887

(2004).

Under the Fourth Amendment, a person is seized if, considering all the

circumstances, a reasonable person would have believed that he was not free to leave.2

Under article I, section 7, a person is seized only when, by means of physical force or a

show of authority, his or her freedom of movement is restrained and a reasonable

person would not have believed he or she is (1) free to leave, given all the

circumstances, State v. Young. 135 Wn.2d 498, 510, 957 P.2d 681 (1998), or (2) free to

otherwise decline an officer's request and terminate the encounter.3 See Florida v.

Bostick, 501 U.S. 429, 436, 111 S. Ct. 2382, 115 L Ed. 2d 389 (1991); State v. Thorn,

129 Wn.2d 347, 352, 917 P.2d 108 (1996). overruled on other grounds by State v.

2 The Fourth Amendment to the United States Constitution states, "The right of

the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated . . .." U.S. Const, amend.

IV.

3Article I, section 7 of the Washington Constitution states, "No person shall be

disturbed in his private affairs, or his home invaded, without authority of law."

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O'Neill. 148 Wn.2d 564, 62 P.3d 489 (2003). Whether a reasonable person would

believe he was detained depends on the particular, objective facts surrounding the

encounter. State v. Ellwood. 52 Wn. App. 70, 73, 757 P.2d 547 (1988) (citing United

States v. Mendenhall. 446 U.S. 544, 554, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980)).

The Supreme Court discussed a nonexclusive list of police actions likely to result

in a seizure, including "the threatening presence of several officers, the display of a

weapon by an officer, some physical touching of the person of the citizen, or the use of

language or tone of voice indicating that compliance with the officer's request might be

compelled." Mendenhall, 446 U.S. at 554-55. Washington courts often rely on these

factors to determine whether a seizure occurred. E.g.. Harrington. 167 Wn.2d at 666;

Young, 135 Wn.2d at 512 (1998).

Muir argues that she was seized through a progressive intrusion into her privacy

reiving on State v. Soto-Garcia. 68 Wn. App. 20, 841 P.2d 1271 (1992). and Harrington.

167 Wn.2d 656. We disagree.

In Soto-Garcia. a Kelso Police Officer questioned the defendant after seeing him

walk out of an alley at night. The officer pulled his car to the side of the road and SotoGarcia voluntarily approached. The officer asked where Soto-Garcia was coming from

and where he was going. Soto-Garcia answered these questions appropriately. The

officer asked for Soto-Garcia's name and he handed over a driver's license. The officer

ran an identification check in Soto-Garcia's presence. The officer asked if he had any

cocaine and Soto-Garcia said he did not. The officer asked to search him. Soto-Garcia

responded, "'Sure, go ahead.'" The officer reached into Soto-Garcia's shirt pocket and

found cocaine. Soto-Garcia. 68 Wn. App. at 22. The court concluded that the

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atmosphere created by the officer's "progressive intrusion" was of such a nature that a

reasonable person would not have felt free to leave. Soto-Garcia. 68 Wn. App. at 25.

The court held that when the officer asked Soto-Garcia if he had any cocaine he was

seized. Soto-Garcia. 68 Wn. App. at 25.

In Harrington, the court concluded that an officer's actions amounted to a

progressive intrusion that seized the defendant. Harrington. 167 Wn.2d at 669-70.

There, a police officer made a U-turn, got out of his patrol car, and approached

Harrington at night as he walked down the sidewalk. The officer questioned Harrington

about his activities and travel. A second officer suddenly arrived on the scene in a

patrol car and stood seven or eight feet from Harrington. The first officer requested that

Harrington remove his hands from his pockets. He then asked for consent to frisk. The

court noted, "Requesting to frisk is inconsistent with a mere social contact." Harrington.

167 Wn.2d at 669. The court held that when the officer requested to frisk Harrington,

"the officers' series of actions matured into a progressive intrusion substantial enough to

seize Harrington. A reasonable person would not have felt free to leave due to the

officers' display of authority." Harrington. 167 Wn.2d at 669-70.

But not every encounter between an officer and a citizen creates a seizure.

Armenta. 134 Wn.2d at 10. An officer may engage a person in conversation in a public

place and ask for identification without seizing that person. Armenta 134 Wn.2d at 11.

A police officer does not seize a person merely by approaching him in a public place

and asking questions as long as the person need not answer and can walk away.

State v. Thomas. 91 Wn. App. 195, 200, 955 P.2d 420 (1998). For example, a

defendant was not seized when an officer approached him in a parking lot and asked,

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"Where is the pipe?" Thorn. 129 Wn.2d at 354. Here, Detective Elton's actions did not

constitute a "progressive intrusion" into Muir's privacy. Without issuing any commands

or attempting to control Muir, Detective Elton asked Muir for permission to perform a

routine search of a truck Muir's boyfriend owned. Indeed, she initially told Detective

Elton to ask Mclntyre for consent. Muir later agreed to allow the search, but she was

equally free to decline and walk away.

In State v. Smith. 154 Wn. App. 695, 226 P.3d 195 (2010), the court found no

seizure occurred where multiple armed officers were present, an officer asked the

defendant for his name, performed a warrants check, asked him for ID, asked for

another form of ID, requested consent to search the defendant's wallet, searched the

wallet, and found methamphetamine. The Smith court distinguished Soto-Garcia on

grounds that the officer asked the defendant a direct question about drug possession.

The Smith court distinguished Harrington on the grounds that the officer there asked the

defendant to remove his hands from his pockets to control his actions. Smith. 154 Wn.

App. at 701-02. Further, in Harrington and Soto-Garcia. the progressive intrusion into

the defendant's privacy lead to a request to frisk—an action that is inconsistent with

mere social contact.

As in Smith. Detective Elton made no attempt to control Muir's actions, asked her

no direct questions about whether she possessed drugs, and made no request to

search her.

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Detective Elton left Muir unattended and out of sight on the sidewalk while he

spoke to Mclntyre.4 As the trial court recognized, "it's not a true custodial interrogation

or custodial matter when the officer walks off and he's outside your view. Iwould think

of no clearer invitation to walk off." RP at 54. Furthermore, none of the factors often

associated with a seizure were present here. See Young, 135 Wn.2d at 512 (citing

Mendenhall, 446 U.S. at 554-55). There was no threatening presence of multiple

officers, no display of weapons, no physical touching, and no language or tone of voice

to indicate compliance might be compelled. And Muir's contact with Detective Elton

before he opened the safe lasted only 10 to 15 minutes.

Muir maintains that when Detective Elton searched the safe, her personal

property was retained, seizing her and requiring Detective Elton to provide Miranda

warnings. See Armenta, 134 Wn.2d at 6, 12 (concluding that a seizure occurred when

officer placed defendant's money in his patrol car); Thomas, 91 Wn. App. at 200-01

(concluding that a seizure occurred when officer took defendant's identification with him

to perform a warrants check); Appellant's Br. at 7-8. But Detective Elton never removed

Muir's property from her presence. After obtaining her consent, he searched her safe

as she stood nearby. Muir was free to decline his request as established by the record

facts here and her statement that she felt free to leave the scene without the truck.

As the State argues, the only question Detective Elton asked directly implicating

Muir or her property before her arrest was the request to search the safe. Resp't's Br.

4 The record shows that Muir testified that when Detective Elton left to talk to

Mclntyre, "[Elton] was out of my view, and I didn't know where he had gone." She also

testified that when he asked for consent the second time, "[Elton] had left out of my

view. . . ." RP (May 28, 2013) at 33.

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at 20. Detective Elton's actions, viewed objectively and in their entirety, did not

constitute a show of authority amounting to a seizure before Muir consented to the

search of her safe.

Finally, we are not persuaded by Muir's argument that Detective Elton controlled

her actions and her purse after she consented to its search.5 The search occurred after

she was formally arrested and read Miranda rights.

Because substantial evidence supports the trial court's factual findings and the

findings support the court's conclusion that no invalid seizure occurred and Muir's

consent to search the safe was free and voluntary, we affirm the judgment and

sentence.

WE CONCUR:

Off^**JtQ

5The undisputed evidence shows no officers directed her to place the purse on

the ground. The first time officers touched the purse occurred after Muir was arrested

during a search incident to that arrest.

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