State v. Marcum

• Decision Date: 16 October 1979
• Docket Number: No. 2878-III-0,2878-III-0
• Citation: 24 Wn.App. 441,601 P.2d 975
• Parties: STATE of Washington, Respondent, v. Rodney A. MARCUM, Appellant.
• Court: Washington Court of Appeals

Page 441

24 Wn.App. 441

601 P.2d 975

STATE of Washington, Respondent, v. Rodney A. MARCUM, Appellant.

No. 2878-III-0.

Court of Appeals of Washington, Division 3, Panel Four.

Oct. 16, 1979.

Nels A. Hansen, Collins & Hansen, Ephrata, for appellant.

Paul A. Klasen, Jr., Pros. Atty., Guy Nelson, James A. Whitaker, Deputy Pros. Attys., Ephrata, for respondent.

ROE, Judge.

On September 9, 1977, Kennard Carzoli was stopped for speeding near Moses Lake, Washington, by Trooper Butler of the Washington State Patrol. Observing several beer cans in the back seat, and detecting a "strong odor of intoxicants," Butler had Carzoli, age 20, perform several physical sobriety tests which he failed. Butler arrested Carzoli for DWI and possession of marijuana, after searching him and finding two marijuana cigarettes. Defendant Marcum, a passenger in the car, was arrested for contributing to the delinquency of Carzoli. He was given his Miranda rights by Deputy McBride who had arrived to assist Butler. Marcum told both officers that he wanted to consult with an attorney before answering any questions.

Butler took the car keys and opened the trunk, where he found more beer cans, two grocery bags filled with marijuana and a white athletic bag which contained two baggies of marijuana, two T-shirts, and a motel registration card bearing Marcum's name. Butler seized this evidence, placed it in his patrol car with Carzoli and Marcum, and drove to the Grant County Sheriff's Office.

Marcum requested a phone call. Butler later testified:

At that time (after Marcum requested an attorney) I asked Mr. Marcum if he understood his rights and he stated that he did. I asked him if he remembered being advised of his rights by Deputy McBride; he stated that he did. I asked him if he bought the baggies of marijuana or if they were for his own use or for resale or for what. He stated that he bought them for his own use. When I asked him how much he had paid for the baggies, he stated that he didn't want to say anything more until he had talked with his attorney. At that point he finished placing his call to a Mrs. Gray, advising her to get a hold (Sic ) of his attorney, Mr. Maxey, and have him contact him at the Grant County Sheriff's Office.

Marcum was charged with possession of over 40 grams of marijuana in violation of the Uniform Controlled Substances Act, RCW 69.50.401.

After receiving testimony from Deputy McBride and Officer Butler in a pretrial CrR 3.5 hearing, the court concluded that Marcum's loaded response to Butler's question was voluntarily made after being properly informed of his constitutional rights. The court also concluded that the warrantless search of the trunk was proper as incident to the lawful arrest of Carzoli and ruled the evidence admissible.

Marcum waived a jury: after a bench trial, he was convicted; he appealed, raising a number of assignments of error.

Marcum first challenges the constitutionality of RCW 69.50.401, contending that the prohibition against private possession of marijuana violates his constitutional right to privacy. In State v. Anderson, 16 Wash.App. 553, 558 P.2d 307 (1976), Review granted 89 Wash.2d 1002 (1977), Division Two of this court held that the right to privacy does not extend to the possession or delivery of marijuana. That is presently the law of Washington, which we hold binds this court. The issue is currently pending before the State Supreme Court, ¹ but until and unless that high court changes the case law, we deem the issue foreclosed in this court.

Marcum next contends that the trial court erred in admitting his statement into evidence. Despite Marcum's post-Miranda request for assistance of counsel and his wish to place a telephone call, Officer Butler proceeded to question him. The State argues that Marcum waived his right to the presence of counsel by responding to Butler's question. We disagree.

Under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966), all questioning must stop once counsel has been requested. United States v. Rodriguez-Gastelum, 569 F.2d 482 (9th Cir. 1978). In State v. Chapman, 84 Wash.2d 373, 376-77, 526 P.2d 64, 66, (1974), the court held:

The language of Miranda v. Arizona, . . . is very plain. "If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease . . . . If the individual states that he wants an attorney, the interrogation must cease until an attorney is present."

(Citation omitted.) See also State v. Haynes, 16 Wash.App. 778, 559 P.2d 583 (1977); State v. Boggs, 16 Wash.App. 682, 559 P.2d 11 (1977).

An accused, however, is not imprisoned within his rights and may waive a previously invoked right to counsel: United States v. Womack, 542 F.2d 1047 (9th Cir. 1976). In North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979), the United States Supreme Court held that an explicit statement of waiver, either oral or written, was not indispensable to a finding that the defendant relinquished the right to counsel guaranteed by Miranda.

An express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver, but is not inevitably either necessary or sufficient to establish waiver. The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case. . . . The courts must presume that a defendant did not waive his rights; the prosecution's burden is great; but in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated.

(Footnote omitted.) North Carolina v. Butler, supra at 99 S.Ct. 1757. See also State v. Pierce, 23 Wash.App. 664, 669, 597 P.2d 1383, 1386 (1979), where the court said:

Under the heading "Conclusion of Law," the trial court made a factual statement "that defendant knowingly and voluntarily waived his right to counsel." A statement of fact included within a trial court's conclusions of law will be treated as a finding of fact by the reviewing court. Redmond v. Kezner, 10 Wash.App. 332, 517 P.2d 625 (1973). A finding of fact supported by substantial evidence will not be overturned on appeal. Thorndike v. Hesperian Orchards, Inc., 54 Wash.2d 570, 343 P.2d 183 (1959).

Assuming the above applies to an alleged waiver of a constitutional right, it has no application to the instant case. The finding here was not that the defendant had waived his right to counsel, merely that the statements were "knowingly and voluntarily given after being properly informed of his constitutional rights" and as such the findings are insufficient to satisfy the requirements of Boggs and Haynes. There is a critical difference in remaining silent after Miranda warnings and affirmatively asserting a right to counsel before answering questions.

In this case we cannot clearly infer that, at the time he answered Butler's question, Marcum voluntarily and knowingly waived the right to counsel he explicitly invoked when arrested. Trooper Butler heard Marcum's request for counsel; further, he initiated questioning when Marcum was about to contact his attorney via telephone. The fact that Butler was able to elicit an incriminating response to his question does not prove waiver.

Where the government asserts waiver, however, it bears a heavy burden of proving its claim. . . . This burden is not discharged by the mere fact that statements were eventually obtained from an accused. . . . Nor may the government establish waiver by the mere repetition of Miranda warnings.

(Citations omitted.) United States v. Womack, supra at 1050-51.

The State has failed to sustain its burden here; consequently, admission of Marcum's statement was reversible error. Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), relied upon by the State, is not in point because at no time during police interrogation did Mosley indicate a desire to consult with a lawyer.

Marcum urges that the evidence in the trunk of the car was improperly seized and therefore inadmissible. The two grocery sacks and the athletic bag were introduced at trial over Marcum's objection. Due, however, to an odd occurrence, ² the trial court considered only the marijuana contained in the athletic bag as evidence against Marcum.

Subject to only a few "jealously and carefully drawn" exceptions, a warrantless search is per se unreasonable. State v. Bean, 89 Wash.2d 467, 572 P.2d 1102 (1978); State v. Brown, 9 Wash.App. 937, 515 P.2d 1008 (1973). If a search and seizure is conducted outside the judicial process, without prior sanction by a "neutral and detached magistrate," the State has the burden of justifying the search under one of the exceptions to the warrant requirement. Arkansas v. Sanders, --- U.S. ----, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979); State v. Bean, supra; State v. York, 11 Wash.App. 137, 521 P.2d 950 (1974).

Here, the State attempts to justify the seizure of the athletic bag on two grounds: (1) the search of the trunk was proper as incident to the lawful arrest of Carzoli and Marcum; and (2) the exigent circumstances of a movable vehicle on a public highway bring the search under the mantle of the "automobile" exception established in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), and Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). After a lawful arrest, police have the right to make a warrantless search both of the arrestee and of the area within his immediate control. State v. Pristell, 3 Wash.App. 962, 478 P.2d 743 (1970).

The rule allowing contemporaneous searches is justified, for example, by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to discover and prevent the loss or destruction...