State v. McCrorey

• Decision Date: 03 May 1993
• Citation: 851 P.2d 1234,70 Wash.App. 103
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Justin M. McCROREY, B.D. 0

Page 103

70 Wn.App. 103

851 P.2d 1234

STATE of Washington, Respondent, v. Justin M. McCROREY, B.D. 04/04/73, Appellant.

No. 28521-1-I.

Court of Appeals of Washington,

Division 1.

May 3, 1993.

Publication Ordered May 25, 1993.

Dennis Burman, Carey & Burman, Arlington, for appellant.

Seth Aaron Fine, Snohomish County Prosecutor Office, Everett, for respondent.

GROSSE, Judge.

The appellant, Justin M. McCrorey, appeals his conviction for taking a motor vehicle without permission, minor in possession of intoxicating liquor, and resisting arrest. McCrorey claims that insufficient evidence supports his convictions for taking a motor vehicle and possessing intoxicating liquor. McCrorey further contends that the arrest that took place in his home was unlawful and violated his rights under the Fourth Amendment and the Washington State Constitution, article 1, section 7. We agree and reverse his conviction.

On December 1, 1990, Justin M. McCrorey, age 17, accompanied his former girl friend, Adrian Peterson, to his brother's wedding. Testimony at trial indicated that McCrorey consumed a large amount of alcoholic punch at the following reception, as well as some wine. McCrorey's mother later drove McCrorey and Peterson back to the McCrorey residence and dropped them off.

At the residence, McCrorey and Peterson began to argue . Peterson's current boyfriend, Brennen Norden, arrived to pick her up and parked his truck at the McCrorey residence. McCrorey pursued Peterson outside, where he struck her and threw her on the ground. McCrorey's neighbor passed by in a car and stopped, picking up Peterson and taking her to his home. Norden followed, and the police were notified. After Peterson and Norden's arrival, the neighbor observed Norden's truck driven into a ditch across the street. No one saw the driver of the truck.

The police arrived approximately 30 minutes later. After interviewing the witnesses, the police went to the McCrorey residence. Deputy Wikstrom knocked on the front door; McCrorey answered the door. Wikstrom asked McCrorey to step outside, but McCrorey refused. Wikstrom then asked McCrorey if he could enter the residence to talk to him, but McCrorey again refused, stating that if Wikstrom wanted inside he would have to procure a search warrant. Wikstrom testified he told McCrorey he wanted to get his side of the story. McCrorey stated that he did not want to be arrested. The testimony conflicts as to the exact nature of the colloquy between McCrorey and Wikstrom. McCrorey claimed that Wikstrom promised not to arrest him before he came inside, and Wikstrom testified he made no such agreement. ¹ McCrorey opened the door and permitted Wikstrom and another deputy to enter.

Once inside, the police noticed a beer can on the table and an odor of alcohol around McCrorey. Wikstrom then informed McCrorey that he was under arrest and asked McCrorey to stand up in order to be handcuffed. McCrorey refused several times and resisted cooperating. After being read his rights, McCrorey confessed to driving Norden's truck and assaulting Peterson.

McCrorey was charged with first degree theft, two counts of fourth degree assault, first degree malicious mischief, taking a motor vehicle without permission, resisting arrest, possessing intoxicating liquor, and driving while intoxicated. The trial court found McCrorey guilty of fourth degree assault, attempted fourth degree assault, taking a motor vehicle without permission, resisting arrest, and possessing intoxicating liquor. McCrorey received a standard range sentence. McCrorey appealed to this court claiming that the arrest was unlawful because his consent was invalid under the state and federal constitutions. McCrorey also contends that insufficient evidence supports the convictions for possessing alcohol and taking a motor vehicle without permission.

McCrorey asserts that the confession obtained by police is inadmissible because McCrorey's consent was not constitutionally valid; therefore, all evidence flowing from the allegedly illegal entry of the police must be suppressed. State v. Larson, 93 Wash.2d 638, 645-46, 611 P.2d 771 (1980). The fourth amendment of the United States Constitution, applicable to the states through the Fourteenth Amendment, prevents the police from making a nonconsensual, warrantless entry into a defendant's residence for the purposes of making an arrest. Payton v. New York, 445 U.S. 573, 576, 100 S.Ct. 1371, 1375, 63 L.Ed.2d 639 (1980). Entry to effect a warrantless arrest and entry to conduct a warrantless search implicate the same level of constitutional protection. Payton, 445 U.S. at 589, 100 S.Ct. at 1381.

Consent within the context of the Fourth Amendment is valid if "voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all the circumstances". Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S.Ct. 2041, 2058-59, 36 L.Ed.2d 854 (1973). The Supreme Court rejected a standard that would require Fourth Amendment consent to be a knowing and intelligent waiver, reasoning that Fourth Amendment rights were distinguishable from rights that protect a fair trial. ²

This voluntary standard of consent has also consistently been applied by the Washington State Supreme Court. ³ McCrorey, however, argues article 1, section 7 of the Washington State Constitution ⁴ should be interpreted as requiring a "knowing and intelligent waiver" standard to apply to searches and seizures also.

The Washington constitution provides heightened protection in the area of search and seizure law. State v. Chrisman, 100 Wash.2d 814, 818, 676 P.2d 419 (1984); State v. Stroud, 106 Wash.2d 144, 148, 720 P.2d 436 (1986). Accordingly the Washington Supreme Court has on occasion declined to follow federal constitutional precedent. ⁵

Nevertheless, the Washington Supreme Court has not universally rejected federal Fourth Amendment analysis. In State v. Mathe, 102 Wash.2d 537, 688 P.2d 859 (1984) the court adopted the United States Supreme Court test for common authority consent in search and seizure cases set forth in United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 992, 39 L.Ed.2d 242 (1974).

The issue of whether the state constitution provides greater protection than the federal constitution must be determined under State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808 (1986). McCrorey contends that under Gunwall, a waiver standard of consent is required. Because the Gunwall court was itself interpreting article 1, section 7, it is not necessary for this court to reanalyze each and every factor. ⁶ Seattle v. Yeager, 67 Wash.App. 41, 834 P.2d 73 (1992). The Gunwall analysis of factors 1, 2, 3, and 5 as applied to article 1, section 7, were adopted by the Supreme Court in State v. Boland, 115 Wash.2d 571, 800 P.2d 1112 (1990). Therefore, we will examine only factors 4 and 6.

Factor four examines pre-existing state law. McCrorey relies on two pre-Schneckloth Washington decisions applying the waiver standard of voluntary and informed consent to warrantless searches: State v. Greco, 52 Wash.2d 265, 324 P.2d 1086 (1958); In re McNear v. Rhay, 65 Wash.2d 530, 398 P.2d 732 (1965). The court defined consent as follows:

The necessity for a search warrant may be waived....

"... [T]he burden of proving there was a truly voluntary and fully informed consent rests upon the Government. Such proof must be made by clear and positive evidence, and it must be established that there was no coercion, actual or implied. The Government must show a consent that is unequivocal and specific, freely and intelligently given...."

(Citations omitted. Footnotes omitted.) State v. Greco, 52 Wash.2d at 266-67, 324 P.2d 1086. These cases, however, were interpreting the fourth amendment of the United States Constitution and did not address the Washington Constitution. Greco and McNear were followed in subsequent Washington decisions analyzing Fourth Amendment consent in terms of waiver. See, e.g., State v. Smith, 72 Wash.2d 479, 481, 434 P.2d 5 (1967); State v. Duarte, 4 Wash.App. 825, 832, 484 P.2d 1156, review denied, 79 Wash.2d 1006 (1971); State v. Johnson, 16 Wash.App. 899, 902, 559 P.2d 1380, review denied, 89 Wash.2d 1002 (1977). ⁷ Other decisions cite to Greco and McNear, but conduct their analysis in terms of voluntariness. See State v. Rodriguez, 20 Wash.App. 876, 881, 582 P.2d 904 (1978); State v. Chakos, 74 Wash.2d 154, 160, 443 P.2d 815 (1968), cert. denied sub nom. Christofferson v. Washington, 393 U.S. 1090, 89 S.Ct. 855, 21 L.Ed.2d 783 (1969).

Subsequent to the Schneckloth decision, the Washington courts adopted the voluntary standard of consent in analyzing Fourth Amendment searches and seizures. State v. Shoemaker, 85 Wash.2d 207, 211-12, 533 P.2d 123 (1975). Therefore, although Washington does have precedent utilizing a waiver analysis of the Fourth Amendment prohibition against unreasonable searches and seizures, it is precedent construing federal authority and not our own state constitution. Indeed, the Supreme Court has indicated it may not be willing to go to so far. In State v. Lyons, 76 Wash.2d 343, 458 P.2d 30 (1969), the court stated that it was not necessary to inform a defendant of his constitutional rights prior to requesting consent to search the defendant's home. Lyons, 76 Wash.2d at 345-46, 458 P.2d 30. Accord, State v. Martin, 2 Wash.App. 904, 909, 472 P.2d 607, review denied, 78 Wash.2d 994, cert. denied, 402 U.S. 912, 91 S.Ct. 1393, 28 L.Ed.2d 655 (1971). Moreover, as discussed above, the State Supreme Court has adopted federal analysis on other consent issues within the context of search and seizure law. See State v. Mathe, supra (approving the common authority consent analysis set forth in United States v. Matlock, 415 U.S. at 171, 94 S.Ct. at 992). Consequently, McCrorey's contention that prior Washington decisions demonstrate a knowing and intelligent waiver...