State v. Gardner
| Decision Date | 31 March 1981 |
| Docket Number | No. 7987-5-I,7987-5-I |
| Parties | STATE of Washington, Respondent, v. David Neal GARDNER, Appellant. |
| Court | Washington Court of Appeals |
Norm Maleng, King County Pros. Atty., Chris Washington, Deputy County Pros. Atty., Seattle, for respondent.
This is an appeal from two judgments and sentences imposed on August 15, 1979, after the defendant, David Neal Gardner, had been convicted of two offenses of burglary in the second degree, and taking and riding a motor vehicle without permission of the owner.
The motor vehicle offense was alleged to have occurred on November 23, 1978, and the burglary on December 30, 1978. The defendant appeals, and both causes have been consolidated for our determination. We do not find that Gardner's assignments of error are sustained.
With respect to the burglary, Gardner claims that the trial court erred in denying his motion to suppress evidence on the ground that his intoxication made his waiver of Miranda rights involuntary.
Gardner gained entry to a 7-11 store in Auburn, Washington, by lowering himself through a hole in the roof. He gained access to the roof by means of a chain link fence that was just high enough that he could climb it, reach the edge of the roof, and pull himself up onto the roof. Entry into the store set off a silent alarm to which Officer Wales of the King County Police responded. When he arrived, other officers were on the scene and the store was still locked. Soon a K-9 unit arrived, entered the store and apprehended Gardner in the cooler area. Officer Wales arrested the defendant and read him his Miranda rights.
Officer Wales testified that he could tell that Gardner was intoxicated by the smell of alcohol, his demeanor, and his disheveled appearance. He also observed that Gardner could stand and walk by himself, appeared to understand the questions asked of him, spoke clearly, and read and initialed the police department rights form. Further, Officer Wales testified that Gardner recognized him from previous encounters and reported having walked to the 7-11 store from a party nearby.
Gardner testified that he did not remember much of what Officer Wales reported, and that he had drunk a fifth of vodka within 3 hours before his apprehension. Gardner points to this testimony, plus Officer Wales' testimony that he was marginally responsive during questioning and that he fell asleep. On the basis of this testimony Gardner claims that there was no substantial evidence for the trial court's determination that he voluntarily waived his Miranda rights.
This court must review the record to determine whether substantial evidence supports the trial court's determination regarding a fundamental right. State v. Young, 28 Wash.App. 412, 624 P.2d 725 (1981). Intoxication alone does not render a statement involuntary, but may be a factor in deciding whether the defendant understood his rights and made a conscious decision to forego them. See State v. Cuzzetto, 76 Wash.2d 378, 457 P.2d 204 (1969). The trial court's conclusion as to the admissibility of the accused's statements will not be set aside on appeal if there is substantial evidence supporting the voluntariness of the defendant's statement. State v. McDonald, 89 Wash.2d 256, 264, 571 P.2d 930 (1977).
The trial judge expressly stated that he did not believe Gardner's testimony as it related to the extent of his intoxication. The trial court was within its province to disbelieve the defendant's testimony. In re Watson, 25 Wash.App. 508, 610 P.2d 367 (1979). The remaining evidence that (1) the defendant could stand and walk, (2) recognized the officer, (3) climbed the fence and hoisted himself to the roof, (4) understood the officer, (5) read the rights form himself, and (6) initialed the form, all cumulate to substantial evidence supporting the trial court's determination regarding voluntariness of the waiver.
Gardner claims that the trial court erred in denying his pretrial motion to suppress evidence obtained as a result of his initial seizure and subsequent arrest.
As Officer Brown began following a speeding International Travelall, it pulled to the roadside and its two male occupants ran into the nearby woods. Officer Brown radioed for a stolen vehicle check and ascertained that the vehicle was just being reported stolen. As Officer Dines responded to a backup call he passed two male hitchhikers about six blocks from where the Travelall was parked. After learning from Officer Brown that two males had leapt from the Travelall and run into the woods, he returned to the hitchhikers who began running along the roadside as he approached. Officer Dines apprehended them and brought them back to the Travelall, where he matched their shoes with footprints in the snow. When the shoes matched the footprints, he arrested Gardner and his companion.
Relying upon State v. Byers, 88 Wash.2d 1, 559 P.2d 1334 (1977), Gardner argues that he was "under arrest" from the moment he was detained by Officer Dines, that this detention was made without probable cause to make an arrest, that the arrest without a warrant was therefore unlawful and that all evidence flowing therefrom must be suppressed.
The State responds that an officer may stop someone of whom he has a well-founded suspicion of criminal activity for investigative purposes and that this was an appropriate preliminary detention not amounting to an arrest but made upon a well-founded suspicion of criminal activity for investigative purposes.
Byers is distinguishable. In Byers:
The court that tried appellants found, as a ... fact, that they "were arrested (when first stopped)." This finding, drawn from as assessment of live testimony we have not heard and undisputed by the parties at all stages of this litigation, is based on substantial evidence.
Byers at 5, 559 P.2d 1334. No argument was made that the stop in Byers was a permissible investigative stop. It is questionable whether Byers is of any import insofar as an investigative stop is concerned.
The concept in Byers that an arrest, requiring probable cause, occurs when a suspect's movement is fully restricted is not helpful in the investigative stop context. In his treatise LaFave discusses a case in which a defendant's movements were fully constricted and the court held that he had been arrested; he argues that such an analysis proves too much. 3 W. LaFave, Search and Seizure (1978). He states:
To conclude that the officers' conduct must be viewed as an arrest from the outset because the defendant's restriction of liberty of movement was then complete and that no significant new restraint followed when the arrest was formally made, is to create a test which would cast doubt upon most stops. The typical stopping for investigation cannot be viewed as anything but a complete restriction on liberty of movement for...
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