State v. Jensen

• Decision Date: 24 July 1986
• Docket Number: No. 6711-4-III,6711-4-III
• Citation: 44 Wn.App. 485,723 P.2d 443
• Parties: STATE of Washington, Respondent, v. Douglas George JENSEN, Appellant.
• Court: Washington Court of Appeals

Page 485

44 Wn.App. 485

723 P.2d 443

STATE of Washington, Respondent, v. Douglas George JENSEN, Appellant.

No. 6711-4-III.

Court of Appeals of Washington Division 3, Panel One.

July 24, 1986.

John D. Knodell, Quincy, for appellant.

Paul A. Klasen, Jr., Pros. Atty., Stephen J. Hallstrom, Deputy, Ephrata, for respondent.

MUNSON, Judge.

Douglas G. Jensen appeals his conviction for possession of a controlled substance, cocaine. RCW 69.50.401(c). The issues are: (1) whether Mr. Jensen voluntarily consented to the search of his car; (2) whether evidence of the cocaine seized during the consensual search of Mr. Jensen's car must be suppressed as the product of a prior illegal search; and (3) if the consent was voluntary and untainted, whether the search of Mr. Jensen's coat, found within his car, exceeded the scope of his consent. We affirm.

On January 25, 1984, Trooper D.C. Richmond of the Washington State Patrol stopped Mr. Jensen for speeding. A check on Mr. Jensen's Oregon license indicated it was suspended. Mr. Jensen was arrested, patted down, handcuffed, and placed in the patrol car.

Trooper Richmond advised Mr. Jensen he had the option of having his car left on the side of the highway or impounded. Mr. Jensen elected to have the car impounded. While waiting for the tow truck to arrive, Trooper Richmond requested Mr. Jensen to list all of the valuables in the car for inventory purposes. Mr. Jensen listed a number of items, including two plastic garbage bags in the trunk. He claimed one of the bags contained a suitcase and the other dirty laundry. He asked the trooper to retrieve the bag containing the suitcase since the suitcase contained money he would need to post bail.

After the tow truck arrived, Trooper Richmond went to the trunk of Mr. Jensen's car to retrieve the suitcase. He touched one of the bags, identifying it as the one containing the suitcase. He then felt the second bag; its contents felt like the tops of ziplock bags and roughage, not laundry. Believing the bag contained marijuana, he punched a hole in it, verifying that it, in fact, contained marijuana.

Returning to the patrol car, Trooper Richmond stored the bag under the front seat. He then advised Mr. Jensen of his Miranda rights; at the suppression hearing, Mr. Jensen denied this. Trooper Richmond further testified Mr. Jensen stated he understood these rights.

While enroute to the Grant County Jail, Mr. Jensen orally consented to the search of his car. During booking, Mr. Jensen again stated he did not care if his automobile was searched. Approximately 1 hour after being "Mirandized," Mr. Jensen signed a "consent to search" form in the presence of Trooper Richmond and Deputy Sheriff Larry Yount. At that time, Trooper Richmond read Mr. Jensen the following language from the consent form:

I, Doug G. Jensen, understanding my Constitutional Right to refuse consent to have a search made of the premises hereafter described and of my right to refuse to consent to a search without a search warrant, hereby authorize the undersigned officers of the Wash. State Patrol to conduct a complete search of the vehicle ...

(Some italics ours.)

Trooper Richmond searched the car the next day. He seized two bundles of cocaine from the right front pocket of a jacket found on the back seat of Mr. Jensen's car.

At the suppression hearing, the trial court suppressed evidence of the bag containing marijuana. It did not suppress evidence of the cocaine. Following a bench trial, Mr. Jensen was convicted of possession of a controlled substance. The court dismissed the charge of driving with a suspended license after it became evident Mr. Jensen had not received notice of the suspension.

The initial issue is whether Mr. Jensen voluntarily consented to allow Trooper Richmond to search his automobile. The general test for consent is "whether a consent to a search was in fact 'voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances." (Italics ours.) Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2047-48, 36 L.Ed.2d 854, (1973); State v. Mak, 105 Wash.2d 692, 713, 718 P.2d 407 (1986); State v. Shoemaker, 85 Wash.2d 207, 211-12, 533 P.2d 123 (1975). The prosecution bears the burden of demonstrating that the consent to search is voluntary. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1791, 20 L.Ed.2d 797, 802 (1968); Shoemaker, at 210, 533 P.2d 123. In assessing whether consent was freely and voluntarily given, the trial court should consider, inter alia: "(1) whether Miranda warnings had been given prior to obtaining consent; (2) the degree of education and intelligence of the consenting person; and (3) whether the consenting person had been advised of his right not to consent." Shoemaker, at 212, 533 P.2d at 123. State v. Rangitsch, 40 Wash.App. 771, 776, 700 P.2d 382 (1985); see also Bustamonte, 412 U.S. at 225, 93 S.Ct. at 2046. Consideration of these factors should be weighed against one another; no one factor is controlling. Shoemaker, at 212, 533 P.2d 123.

Here, although Mr. Jensen was in custody at the time he consented, examination of the record reveals no trace that his "will ha[d] been overborne and his capacity for self-determination critically impaired". United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 828, 46 L.Ed.2d 598 (1976) (quoting Bustamonte, 412 U.S. at 225, 93 S.Ct. at 2046). Mr. Jensen was not threatened overtly or implicitly or otherwise induced into consenting to the search. Nor does he contend his consent was given because of the discovery of the marijuana. 2 W. LaFave, Search & Seizure § 8.2(d), at 653 (1978 & Supp. 1986); State v. Werth, 18 Wash.App. 530, 571 P.2d 941 (1977), review denied, 90 Wash.2d 1010 (1978); see also State v. Kennedy, 290 Or. 493, 624 P.2d 99 (1981). The record shows Mr. Jensen: (1) cooperated with Trooper Richmond during and after his arrest; (2) orally consented to the search twice before actually signing the consent form; and (3) was read directly from the consent form that he need not consent to the search of his car.

Additionally, the trial court found Mr. Jensen: (1) was fully advised of his constitutional rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966); (2) was not a particularly young man; (3) had prior experience with the police; and (4) was not of low intelligence. These findings are not challenged on appeal and are verities. State v. Christian, 95 Wash.2d 655, 628 P.2d 806 (1981). Consequently, we conclude the consent to search the car was voluntarily given by Mr. Jensen. See United States v. Hall, 724 F.2d 1055, 1060 (2d Cir.1983); United States v. Compton, 704 F.2d 739, 741 (5th Cir.1983); but see United States v. Robinson, 690 F.2d 869, 874-75 (11th Cir.1982). See generally Annot., Validity of Consent to Search Given By One in Custody of Officers, 9 A.L.R.3d 858 § 18 (1966 & Supp.1985).

Notwithstanding, Mr. Jensen correctly contends although his consent was voluntary, the State must also demonstrate his consent was not obtained by the exploitation of the prior illegal search. ¹ See Taylor v. Alabama, 457 U.S. 687, 102 S.Ct. 2664, 73 L.Ed.2d 314 (1982); Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); State v. Chrisman, 94 Wash.2d 711, 619 P.2d 971 (1980), rev'd on other grounds sub nom. Washington v. Chrisman, 455 U.S. 1, 102 S.Ct. 812, 70 L.Ed.2d 778 (1982), remanded, 100 Wash.2d 814, 676 P.2d 419 (1984). Here, it is clear that Officer Richmond's interest in searching the car arose only after illegally discovering the marijuana. However, Wong Sun, 371 U.S. at 487-88, 83 S.Ct. at 417, provides:

We need not hold that all evidence is "fruit of the poisonous tree" simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is "whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint." Maguire, Evidence of Guilt, 221 (1959).

In Brown, Dunaway, and Taylor, the United States Supreme Court identified several factors useful in determining whether a defendant's confession was tainted by a prior illegal arrest. These factors, which are equally applicable in determining whether a voluntary consent to search was sufficiently attenuated from a prior illegal search, are: (1) the temporal proximity of the illegal search and subsequent consent; (2) the presence of intervening circumstances; (3) the purpose and flagrancy of the official misconduct; and (4) the giving of Miranda warnings. Taylor, 457 U.S. at 690, 102 S.Ct. 2666. In applying these factors, we conclude Mr. Jensen's consent was not the fruit of the illegal search.

First, although the consent to search was given within 2 hours of the prior illegal search, the proximity in time alone, is not determinative. See United States v. Berry, 670 F.2d 583, 605 (5th Cir.1982). Second, there were substantial intervening circumstances; a crucial fact was that Mr. Jensen was advised after the illegal search and prior to his signing of the consent form that he could refuse to consent. In addition, in the intervening period, Mr. Jensen orally consented twice to the search. He also was allowed to call his sister, although she apparently did not answer. Cf. Berry, at 605.

Third, the record indicates Mr. Jensen was not subjected to intimidating police misconduct. He was legally arrested. Trooper Richmond did nothing to frighten or intimidate Mr. Jensen and, in fact, the relationship between the two appears to have been cooperative and...