### FILED NOV. 14,2013 In the Office ofthe ClerkofCourt WA StateCourtofAppeals, Division III
INTHECOURTOF APPEALS OF THE STATEOF WASHINGTON DIVISIONTHREE 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### v. ) UNPUBLISHED OPINION ) RODOLFO GALVAN, ) ) Appellant.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 andpossession ofdrugparaphernalia aftermethamphetaminewas found inthe car

### Mr. Galvan was driving. 

### Mr. Galvan appeals. He contends thatthe trial court erred in denyingto suppress the evidence found in the car and the statementshe made to police. We conclude the trial courtproperly denied the motionto suppress and we, therefore, afftrm the convictions. FACTS OnMarch 24, 2011, at approximately 10:45 p.m., 

### Mr. Galvan was drivinghome alone whenhewas stopped by Washington StatePatrol TrooperDavidBrandt. Trooper Brandtinitiatedthe stopbecausehe noticedthat one ofthevehicle'sheadlights was

### No. 31000-I-II1 State 

### v. Galvan 

### inoperative. Upon contacting Mr. Galvan, Trooper Brandt detected the odor offresh 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 Brandtthat there was none. Trooper Brandt ordered Mr. Galvan out ofthe vehicle, handcuffed him, and detained him to investigate. TrooperBrandtnoticed that the marijuana odor changed to burnt marijuana coming from Mr. Galvan. TrooperBrandt took Mr. Galvan to the front ofthepatrol 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 ofhis rights or his waiver ofthose rights. However, at the suppression hearing over one year later, TrooperBrandttestified thatMr. Galvan stated that he understood his rights and agreed to talkto TrooperBrandt. Trooper Brandt asked about Mr. Galvan's last use ofmarijuana. Mr. Galvan told Trooper Brandt thathe last smoked marijuanatwo months ago. TrooperBrandt then had Mr. Galvan tilt his head back. Trooper Brant noticed that Mr. Galvan's eyes were fluttering, consistent with recent marijuanause. TrooperBrandt also noticed that Mr.

2No. 31000-1-111 State v. Galvan
Galvan'staste buds were green, also consistentwith marijuana use. Mr. Galvan then admitted that he smoked marijuana two hours earlier. Mr. Galvan was placed under arrest for possession ofmarijuana. TrooperBrandt searched Mr. G'alvan and located approximately $1,100 in cash inMr. Galvan's pockets and wallet. TrooperBrandtdid 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, TrooperBrandtobserved a blue padlocked gun case onthe rearpassenger 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 thatthe case contained a gun orthat 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 Brandtreleased Mr. Galvan and told him that he would forward charges for thepossession ofmarijuana to the Benton County Prosecuting Attorney. The charge was based on Trooper Brandt's observations and the marijuana odoremitting from Mr. Galvan. Afterimpoundingthe 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 thejudge. The affidavit requestedpermission to search the vehicle for controlled substances includingbutnot limited to marijuana and any evidence ofdistribution of those controlled substances. Judge Kathryn gave permission to affix his signature to the searchwarrant. The search warrant completed by Trooper Brandt contained additional information that was not included in the affidavitread to Judge Kathryn. The search warrant also allowed for the search ofthe "[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 ofthe vehicle." Clerk's Papers (CP) at 63. The glove compartment ofthe vehicle was locked. TrooperRobert Morris unlocked the glove compartment and found a handgun and a clearbag 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 withpowderresidue. The chunks and white powderresidue testedpositive for methamphetamine. Mr. Galvan was charged with one count ofunlawful possession ofa controlled substance, methamphetamine, and one count ofpossession ofdrug paraphernalia. Mr.
4No. 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 ofthe crimes charged. Mr. Galvan appeals. He assigns error to the trial court's denial ofhis motion to suppress. ANALYSIS Unlawful Search. Appellate review ofa denial ofa 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 ofthe truth ofthe 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 ofhis person was unlawful because he was not under custodial arrest. He maintains that Trooper Brandt did not intend to take Mr. Galvan tojail so there was no need for anything more than a brieffrisk for weapons.



### 5No.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, orto 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 precedentto a search incidentto 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 mustbe contemporaneous with the arrest. McKenna, 91 Wn. App. at 560. When an arrest is noncustodial, thejustification for the search is absent because the encounter will likely'bebrief, 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 himselfor herselfunder a custodial arrest. State v. Reichenbach, 153 Wn.2d 126, 135, 101 P.3d 80 (2004). Thetest is objective and hinges on the manifestation ofthe arresting officer's intent. State v.


### 6No. 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 ofintent indicating custodial arrest include handcuffing the suspect and placing him in the back ofthe patrol car. State v. Radka, 120 Wn. App. 43, 49, 83 P.3d 1038 (2004). Courts also consider whether the officer infonned the defendantthat he was under arrest. State v. Patton, 167 Wn.2d 379,387,219 P.3d 651 (2009). The search ofMr. Galvan was a lawful search pursuant to a custodial arrest. Underthe circumstances, a reasonable person under the same circumstances as Mr. Galvan would have considered himselfor herselfunder a custodial arrest. Trooper Brandttold Mr. Galvan that he was under arrest. Trooper Brandt ordered Mr. Galvan out ofthe vehicle, handcuffed him, took Mr. Galvan to the front ofthe patrol car, and questioned him about marijuana use. Trooper Brandttold Mr. Galvan that he was being detained for the possession ofmarijuana 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 subsequentrelease after the arrest does not negate Trooper Brandt's intentto place Mr. Galvan under custodial arrest for narcotics possession. The search ofMr. Galvan was not unlawful.

7

### No. 31

### OOO-l-III State v. Galvan
Search oftheLockedCompartments andParticularityRequirementtor Warrant. "Whether a warrant meets the particularity requirement ofthe 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 ofthe locked glove compartment and locked container in the vehicle exceeded the scope ofthe search warrant because Trooper Brandt failed toparticularly identity these areas in the affidavit to search. The particularity clause ofthe Fourth Amendment requires search warrants to specifically identity both the location to be searched andthe items to be seized. U.S. CONST. amend. IV. "The purpose ofthe particularityrequirement is to prevent the State from engaging in unrestricted 'exploratory rummaging in aperson'sbelongings' for any evidence ofany 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. 2022,29L. Ed. 2d 564 (1971». The description ofthe items sought in the search must be as specific as circumstances permit. Stenson, 132 Wn.2d at 692. The description ofthe 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 butnot limited to marijuana, any evidence ofdistribution ofthose controlled substances, and any evidence ofexercise ofdomain and control ofthe vehicle. The search ofthe locked glove compartment and the padlocked case were within the particular scope ofthe search warrant as they both were inside the car and both could possibly contain evidence of controlled substances. Theparticularity clause was notviolated. 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 wouldbe searched, including all interior compartments, any open, closed, locked, or otherwise sealed containers and compartments located inside or outside ofthe vehicle. These areas
are all areas inside the vehicle that could contain evidence ofcontrolled substances. The search warrant did not change the parameters ofthe search that Judge Kathym agreed upon. Mr. Galvan relies on State v. Monaghan, 165 Wn. App. 782,266 P.3d 222 (2012) to establish thatparticularpermission must be obtained before conducting a search ofa
9No. 31OOO-I-III State v. Galvan
locked container. 

### Mr. Galvan's reliance on Monaghan is misplaced. Monaghan involved the scope ofa search based on a person's consentto 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 ofa vehicle
occurs incident to arrest, and the officer discovers a locked container or glove compartment, the officermust first obtain a warrantbefore 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 ofthe search warrant. The search warrant did not violate the particularity requirement ofthe Fourth Amendment. Knowing. Intelligent. and Voluntary Waiver of Rights. Mr. Galvan contends that the trial court erred by denying to suppress the statements he made to TrooperBrandt. Mr. Galvan contends that he did not knowingly, intelligently, and voluntarily waive his rights before making the statements. Priorto a custodial interrogation, a defendant must be warned ofhis right to remain silent and the right to the presence ofan attorney. Miranda v. Arizona, 384 U.S.
lONo. 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 warningprovided 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 ofproving voluntariness by apreponderance ofthe 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 ifthere is substantial evidence in the record from which the trial court could have found the confession was voluntary by apreponderance ofthe evidence." State 

### v. Aten, 130 Wn.2d 640, 664, 927 P.2d 210 (1996). In determining whether a defendant voluntarily waivedMiranda rights, the appellate court considers the totality ofthe 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 ofan essentially free and unconstrained choice by its maker.'" State 

### v. Thompson, 73 Wn. App. 122, 131,867 P.2d 691 (1994) (quotingSchneckloth 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 ofthe circumstances include the defendant's physical condition, age, mental abilities, experience, and the conduct ofthe police. Aten, 130 Wn.2d at 664. A voluntary waiverneed notbe expressed; itmay be implied by the
11No. 31OOO-l-III State 

### v. Galvan
facts and circumstances underwhichthe statement is made. State v. Haverty, 3 Wn. App. 

### 495,498,475 P.2d 887 (1970). Here, the trial courtdid not errby denying Mr. Galvan's motion to suppress his statements. There is substantial evidence in the record to supportthe trial court's determination thatMr. Galvan gave a knowing, voluntary, and intelligent waiver after being given a Miranda warningby TrooperBrandt. Thetrial court concludedthatMr. Galvan waivedhis constitutional rights andknewwhathe was doing atthe time as indicatedbyhis subsequent decision to deny consentto search the vehicle. Indeed, the report filed by TrooperBrandt indicated that Mr. Galvan knew enoughto deny consentto search his car. Based on this denial, it can be deduced that Mr. Galvan also knewthathe had the rightto choose whetherornotto answerTrooperBrandt's questions. In fact, Mr. Galvan chose notto answer at least one ofthe questions posedby TrooperBrandt. Although Mr. Galvan seemed nervous when answering the questions, there is no evidence that Mr. Galvan did not know that he could refuse to answerthe questions. TrooperBrandt informed Mr. Galvanthathe was under arrest for possession of marijuana and read to Mr. Galvan the constitutional rights providedto him. There is no evidencethat TrooperBrandt subjected Mr. Galvan to any threats, trickery, or intimidation to elicit answers to the questions. The evidence is sufficientto show thatMr.
12No.31000-I-II1 State 

### v. Galvan
Galvan knew his rights, and voluntarily, knowingly and intelligently waivedthem when he made his statements. The trial court

### did not err in denying Mr. Galvan'smotion to suppress statements made to TrooperBrandt. We affirm. A majority ofthepanel has determined this opinion will not be printed in the Washington Appellate Reports, but itwill be filed for publicrecord pursuant to RCW 2.06.040. Kulik, 

### J. WE CONCUR:

Brown, 1.

# ~#~.It~ Siddoway, A.C.J.

13

### The Courtof Appeals ReneeS. Townsley 500N CedarST Clerk/Administrator 

### of the 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 ofWashington v. Rodolfo Galvan BENTON COUNTY SUPERIOR COURT No. 111006691 Counsel: Enclosed please find a copy ofthe 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). Ifa 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 briefargument on the pOints raised. RAP 12.4(c). Motions for reconsideration which merely reargue the case should not be filed. Motions for reconsideration, ifany, must be filed within twenty (20) days afterthe filing ofthe opinion. Please file an original and two copies ofthe 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 afterthe filing ofthis 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