FILED 


NOV. 14,2013 


In the Office of the Clerk of Court 


WA State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


STATE OF WASHINGTON, ) No. 31000-1-III 

) 

Respondent, ) 

) 

v. ) UNPUBLISHED OPINION 

) 

RODOLFO GALVAN, ) 

) 

Appellant. ) 

KULIK, J. - Benton County charged Rodolfo Galvan with unlawful possession of 

a controlled substance and possession ofdrug paraphernalia after methamphetamine was 

found in the car Mr. Galvan was driving. Mr. Galvan appeals. He contends that the trial 

court erred in denying to suppress the evidence found in the car and the statements he 

made to police. We conclude the trial court properly denied the motion to suppress and 

we, therefore, afftrm the convictions. 

FACTS 

On March 24, 2011, at approximately 10:45 p.m., Mr. Galvan was driving home 

alone when he was stopped by Washington State Patrol Trooper David Brandt. Trooper 

Brandt initiated the stop because he noticed that one ofthe vehicle's headlights was 
No. 31000-I-II1 

State v. Galvan 

inoperative. Upon contacting Mr. Galvan, Trooper Brandt detected the odor of fresh 

marijuana emitting from the vehicle. Trooper Brandt also noticed that Mr. Galvan was 

acting nervous. Trooper Brandt questioned Mr. Galvan about whether there was 

marijuana in the vehicle. Mr. Galvan told Trooper Brandt that there was none. Trooper 

Brandt ordered Mr. Galvan out of the vehicle, handcuffed him, and detained him to 

investigate. Trooper Brandt noticed that the marijuana odor changed to burnt marijuana 

coming from Mr. Galvan. 

Trooper Brandt took Mr. Galvan to the front ofthe patrol car and read Mr. Galvan 

his constitutional rights. Trooper Brandt's report was written two days after the incident 

and did not include any information about Mr. Galvan's acknowledgement of his rights or 

his waiver of those rights. However, at the suppression hearing over one year later, 

Trooper Brandt testified that Mr. Galvan stated that he understood his rights and agreed to 

talk to Trooper Brandt. 

Trooper Brandt asked about Mr. Galvan's last use of marijuana. Mr. Galvan told 

Trooper Brandt that he last smoked marijuana two months ago. Trooper Brandt then had 

Mr. Galvan tilt his head back. Trooper Brant noticed that Mr. Galvan's eyes were 

fluttering, consistent with recent marijuana use. Trooper Brandt also noticed that Mr. 

2 

No. 31000-1-111 

State v. Galvan 

Galvan's taste buds were green, also consistent with marijuana use. Mr. Galvan then 

admitted that he smoked marijuana two hours earlier. 

Mr. Galvan was placed under arrest for possession of marijuana. Trooper Brandt 

searched Mr. G'alvan and located approximately $1,100 in cash in Mr. Galvan's pockets 

and wallet. Trooper Brandt did not find any marijuana. The search occurred prior to Mr. 

Galvan being placed in the patrol car. 

Mr. Galvan did not sign the consent form to search the vehicle. From outside of 

the vehicle, Trooper Brandt observed a blue padlocked gun case on the rear passenger 

side floorboard. Trooper Brandt asked Mr. Galvan what was in the case and Mr. Galvan 

said it was a lighter. Trooper Brandt did not believe that the case contained a gun or that 

Mr. Brandt was prohibited from carrying a gun. 

Trooper Brandt seized Mr. Galvan's vehicle and had it towed to the Washington 

State Patrol bullpen. Trooper Brandt released Mr. Galvan and told him that he would 

forward charges for the possession of marijuana to the Benton County Prosecuting 

Attorney. The charge was based on Trooper Brandt's observations and the marijuana 

odor emitting from Mr. Galvan. 

After impounding the vehicle, Trooper Brandt completed a search warrant 

affidavit for the vehicle. Trooper Brandt called Judge Dan Kathyrn and read the affidavit 

3 

No. 31000-1-111 

State v. Galvan 

to the judge. The affidavit requested permission to search the vehicle for controlled 

substances including but not limited to marijuana and any evidence of distribution of 

those controlled substances. Judge Kathryn gave permission to affix his signature to the 

search warrant. 

The search warrant completed by Trooper Brandt contained additional information 

that was not included in the affidavit read to Judge Kathryn. The search warrant also 

allowed for the search of the "[e ]ntire vehicle including engine compartment, covered bed 

ofvehicle, all interior compartments, any open, closed, locked or otherwise sealed 

containers/compartments located inside or outside of the vehicle." Clerk's Papers (CP) 

at 63. 

The glove compartment of the vehicle was locked. Trooper Robert Morris 

unlocked the glove compartment and found a handgun and a clear bag containing white 

powder and small chunks. The troopers also opened the padlocked gun case and found a 

lighter and a wooden scoop with white powder residue. In the unlocked center console of 

the vehicle, Trooper Brandt found a black digital scale with powder residue. The chunks 

and white powder residue tested positive for methamphetamine. 

Mr. Galvan was charged with one count of unlawful possession of a controlled 

substance, methamphetamine, and one count ofpossession of drug paraphernalia. Mr. 

4 

No. 31000-1-111 

State v. Galvan 

Galvan sought to suppress his statements to Trooper Brandt and the evidence found in his 

car. After a hearing, the trial court denied the motion. A stipulated facts trial was held, 

and Mr. Galvan was found guilty of the crimes charged. 

Mr. Galvan appeals. He assigns error to the trial court's denial of his motion to 

suppress. 

ANALYSIS 

Unlawful Search. Appellate review of a denial of a motion to suppress requires 

the court to determine "whether substantial evidence supports the challenged findings of 

fact and whether the findings support the conclusions oflaw." State v. Garvin, 166 

Wn.2d 242,249,207 P.3d 1266 (2009). "Evidence is substantial when it is sufficient to 

persuade a fair-minded person of the truth of the stated premise." State v. Reid, 98 Wn. 

App. 152, 156,988 P.2d 1038 (1999). Evidence seized during an illegal search must be 

suppressed under the exclusionary rule. State v. Gaines, 154 Wn.2d 711, 716-17, 116 

P .3d 993 (2005). 

Mr. Galvan contends that the search of his person was unlawful because he was 

not under custodial arrest. He maintains that Trooper Brandt did not intend to take Mr. 

Galvan to jail so there was no need for anything more than a brief frisk for weapons. 

5 

No.31000-1-III 

State v. Galvan 

Warrantless searches are "per se" unreasonable under both the state and federal 

constitutions. State v. Walker, 136 Wn.2d 678, 682, 965 P .2d 1079 (1998). A search 

incident to a lawful arrest is a recognized exception to the warrant requirement. State v. 

Boursaw, 94 Wn. App. 629, 632, 976 P.2d 130 (1999) (quoting State v. Smith, 119 Wn.2d 

675,678, 835 P.2d 1025 (1992)). The exception allows an officer to search an arrestee 

for weapons as a measure to protect the officer, or to search for evidence that may be 

destroyed. State v. McKenna, 91 Wn. App. 554, 560-61, 958 P.2d 1017 (1998). 

A valid custodial arrest is a condition precedent to a search incident to arrest. State 

v. O'Neill, 148 Wn.2d 564, 587, 62 P.3d 489 (2003). Law enforcement must have 

probable cause to arrest and the search must be contemporaneous with the arrest. 

McKenna, 91 Wn. App. at 560. 

When an arrest is noncustodial, the justification for the search is absent because 

the encounter will likely'be brief, and the motivation to destroy evidence or use a weapon 

will be slight. ld. at 561. 

Whether a person is in custody depends on whether a reasonable person under the 

same circumstances as the suspect would have considered himself or herself under a 

custodial arrest. State v. Reichenbach, 153 Wn.2d 126, 135, 101 P.3d 80 (2004). The test 

is objective and hinges on the manifestation ofthe arresting officer's intent. State v. 

6 

No. 31000-1-111 

State v. Galvan 

Salinas, 169 Wn. App. 210, 218, 279 P.3d 917 (2012), review denied, 176 Wn.2d 1002, 

297 P.3d 67 (2013). 

Manifestations of intent indicating custodial arrest include handcuffing the suspect 

and placing him in the back of the patrol car. State v. Radka, 120 Wn. App. 43, 49, 83 

P.3d 1038 (2004). Courts also consider whether the officer infonned the defendant that 

he was under arrest. State v. Patton, 167 Wn.2d 379,387,219 P.3d 651 (2009). 

The search of Mr. Galvan was a lawful search pursuant to a custodial arrest. 

Under the circumstances, a reasonable person under the same circumstances as Mr. 

Galvan would have considered himself or herself under a custodial arrest. Trooper 

Brandt told Mr. Galvan that he was under arrest. Trooper Brandt ordered Mr. Galvan out 

of the vehicle, handcuffed him, took Mr. Galvan to the front of the patrol car, and 

questioned him about marijuana use. Trooper Brandt told Mr. Galvan that he was being 

detained for the possession of marijuana and read Mr. Galvan his constitutional rights. 

Mr. Galvan then admitted that he smoked marijuana two hours earlier. There is no 

indication that Mr. Galvan was free to leave. Mr. Galvan's subsequent release after the 

arrest does not negate Trooper Brandt's intent to place Mr. Galvan under custodial arrest 

for narcotics possession. 

The search of Mr. Galvan was not unlawful. 

7 

No. 31 OOO-l-III 

State v. Galvan 

Search ofthe Locked Compartments and Particularity Requirement tor Warrant. 

"Whether a warrant meets the particularity requirement of the Fourth Amendment is 

reviewed de novo." State v. Stenson, 132 Wn.2d 668,691,940 P.2d 1239 (1997). 

Mr. Galvan contends that the search of the locked glove compartment and locked 

container in the vehicle exceeded the scope of the search warrant because Trooper Brandt 

failed to particularly identity these areas in the affidavit to search. 

The particularity clause of the Fourth Amendment requires search warrants to 

specifically identity both the location to be searched and the items to be seized. U.S. 

CONST. amend. IV. "The purpose of the particularity requirement is to prevent the State 

from engaging in unrestricted 'exploratory rummaging in a person's belongings' for any 

evidence of any crime." State v. Askham, 120 Wn. App. 872, 878, 86 P.3d 1224 (2004) 

(quoting Coolidge v. New Hampshire, 403 U.S. 443, 467,91 S. Ct. 2022,29 L. Ed. 2d 

564 (1971». The description of the items sought in the search must be as specific as 

circumstances permit. Stenson, 132 Wn.2d at 692. The description of the location to be 

searched must identity the location adequately enough so that the officer executing the 

warrant can, with reasonable care, identity the place intended. State v. Cockrell, 102 

Wn.2d 561, 569-70,689 P.2d 32 (1984). 

8 

No. 3IOOO-I-III 

State v. Galvan 

Here, the search warrant and accompanying affidavit described with particularity 

the location to be searched and items to be seized. Both the affidavit and the search 

warrant identified the car driven by Mr. Galvan as the location to be searched. Also, both 

identified the items to be seized as controlled substances including but not limited to 

marijuana, any evidence of distribution of those controlled substances, and any evidence 

of exercise of domain and control of the vehicle. The search of the locked glove 

compartment and the padlocked case were within the particular scope of the search 

warrant as they both were inside the car and both could possibly contain evidence of 

controlled substances. The particularity clause was not violated. 

The fact that the search warrant gave more detail than the affidavit does not 

invalidate the search. The search warrant merely clarified that the entire vehicle would be 

searched, including all interior compartments, any open, closed, locked, or otherwise 

sealed containers and compartments located inside or outside of the vehicle. These areas 

are all areas inside the vehicle that could contain evidence of controlled substances. The 

search warrant did not change the parameters of the search that Judge Kathym agreed 

upon. 

Mr. Galvan relies on State v. Monaghan, 165 Wn. App. 782,266 P.3d 222 (2012) 

to establish that particular permission must be obtained before conducting a search of a 

9 

No. 31 OOO-I-III 

State v. Galvan 

locked container. Mr. Galvan's reliance on Monaghan is misplaced. Monaghan involved 

the scope of a search based on a person's consent to the area to be searched, which did 

not include a locked safe inside the vehicle. Id. at 789. Here, Mr. Galvan's consent to the 

search is not at issue. Instead, in Washington, when a warrantless search of a vehicle 

occurs incident to arrest, and the officer discovers a locked container or glove 

compartment, the officer must first obtain a warrant before unlocking and searching those 

areas. State v. Vrieling, 144 Wn.2d 489,492,28 PJd 762 (2001). Trooper Brandt 

obtained a search warrant before searching the vehicle and its locked compartments and 

containers. Particular permission to search the locked compartments and containers was 

within the scope of the search warrant. 

The search warrant did not violate the particularity requirement of the Fourth 

Amendment. 

Knowing. Intelligent. and Voluntary Waiver ofRights. Mr. Galvan contends that 

the trial court erred by denying to suppress the statements he made to Trooper Brandt. 

Mr. Galvan contends that he did not knowingly, intelligently, and voluntarily waive his 

rights before making the statements. 

Prior to a custodial interrogation, a defendant must be warned of his right to 

remain silent and the right to the presence of an attorney. Miranda v. Arizona, 384 U.S. 

lO 
No. 31000-I-III 

State v. Galvan 

436,444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). A defendant can waive these rights 

given in a Miranda warning provided that the wavier is knowing, voluntary and 

intelligent. State v. Bradford, 95 Wn. App. 935, 944, 978 P.2d 534 (1999). The State 

bears the burden of proving voluntariness by a preponderance of the evidence. State v. 

Braun, 82 Wn.2d 157, 162,509 P.2d 742 (1973). "When a trial court determines a 

confession is voluntary, that determination is not disturbed on appeal if there is 

substantial evidence in the record from which the trial court could have found the 

confession was voluntary by a preponderance of the evidence." State v. Aten, 130 Wn.2d 

640, 664, 927 P .2d 210 (1996). 

In determining whether a defendant voluntarily waived Miranda rights, the 

appellate court considers the totality of the circumstances. State v. Allen, 63 Wn. App. 

623,626, 821 P.2d 533 (1991). The test for voluntariness is whether '''the confession [is] 

the product of an essentially free and unconstrained choice by its maker.'" State v. 

Thompson, 73 Wn. App. 122, 131,867 P.2d 691 (1994) (quoting Schneckloth v. 

Bustamonte, 412 U.S. 218,225,93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973». Factors that a 

court considers in assessing the totality of the circumstances include the defendant's 

physical condition, age, mental abilities, experience, and the conduct of the police. Aten, 

130 Wn.2d at 664. A voluntary waiver need not be expressed; it may be implied by the 

11 

No. 31 OOO-l-III 

State v. Galvan 

facts and circumstances under which the statement is made. State v. Haverty, 3 Wn. App. 

495,498,475 P.2d 887 (1970). 

Here, the trial court did not err by denying Mr. Galvan's motion to suppress his 

statements. There is substantial evidence in the record to support the trial court's 

determination that Mr. Galvan gave a knowing, voluntary, and intelligent waiver after 

being given a Miranda warning by Trooper Brandt. The trial court concluded that Mr. 

Galvan waived his constitutional rights and knew what he was doing at the time as 

indicated by his subsequent decision to deny consent to search the vehicle. Indeed, the 

report filed by Trooper Brandt indicated that Mr. Galvan knew enough to deny consent to 

search his car. Based on this denial, it can be deduced that Mr. Galvan also knew that he 

had the right to choose whether or not to answer Trooper Brandt's questions. In fact, Mr. 

Galvan chose not to answer at least one ofthe questions posed by Trooper Brandt. 

Although Mr. Galvan seemed nervous when answering the questions, there is no evidence 

that Mr. Galvan did not know that he could refuse to answer the questions. 

Trooper Brandt informed Mr. Galvan that he was under arrest for possession of 

marijuana and read to Mr. Galvan the constitutional rights provided to him. There is no 

evidence that Trooper Brandt subjected Mr. Galvan to any threats, trickery, or 

intimidation to elicit answers to the questions. The evidence is sufficient to show that Mr. 

12 

No.31000-I-II1 

State v. Galvan 

Galvan knew his rights, and voluntarily, knowingly and intelligently waived them when 

he made his statements. 

The trial court did not err in denying Mr. Galvan's motion to suppress statements 

made to Trooper Brandt. 

We affirm. 

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to 

RCW 2.06.040. 

Kulik, J. 

WE CONCUR: 

Brown, 1. Siddoway, 

~#~.It~ A.C.J. 

13 

The Court ofAppeals Renee S. Townsley 500 N Cedar ST 


Clerk/Administrator ofthe Spokane, WA 99201-1905 


(509) 456-3082 Fax (509) 456-4288 

TDD #1-800-833-6388 http://www.courts.wa.govlcourts 

State ofWashington 

Division III 

November 14,2013 

E-mail E-mail 

Emily Kay Sullivan Andrew Kelvin Miller 

Benton County Prosecutor Benton County Prosecutors Office 

7122 W Okanogan PI Bldg A 7122 W Okanogan PI Bldg A 

Kennewick, WA 99336-2359 Kennewick, WA 99336-2359 

Michelle Tobin Trombley Norma Rodriguez 

Rodriguez & Associates, P.S. Rodriguez & Associates, PS 

7502 W Deschutes PI 7502 W Deschutes PI 

Kennewick, WA 99336-7719 Kennewick, WA 99336-7719 

mtrombley@rodriguezlawwa.com norma@rodriguezlawwa.com 

CASE # 310001 

State of Washington v. Rodolfo Galvan 

BENTON COUNTY SUPERIOR COURT No. 111006691 

Counsel: 

Enclosed please find a copy of the opinion filed by the Court today. 

A party need not file a motion for reconsideration as a prerequisite to discretionary review by the 

Supreme Court. RAP 13.3(b); 13.4(a). If a motion for reconsideration is filed, it should state with 

particularity the pOints of law or fact which the moving party contends the court has overlooked or 

misapprehended, together with a brief argument on the pOints raised. RAP 12.4(c). Motions for 

reconsideration which merely reargue the case should not be filed. 

Motions for reconsideration, if any, must be filed within twenty (20) days after the filing of the 

opinion. Please file an original and two copies of the motion. If no motion for reconsideration is filed, 

any petition for review to the Supreme Court must be filed in this court within thirty (30) days after the 

filing of this opinion (may be filed by electronic facsimile transmission). The motion for reconsideration 

and petition for review must be received (not mailed) on or before the dates they are due. RAP 18.5{c). 

Sincerely, 

~)J0~ Renee S. Townsley 

Clerk/Administrator 

RST:pb 

Enc. 

c: 	 E-mail 

Hon. Craig Matheson 

c: 	 Rodolfo Galvan 

1055 E 27th Ave. 

Kennewick, WA 99337-5552