State v. Shoemaker, 43418

• Decision Date: 20 March 1975
• Docket Number: No. 43418,43418
• Citation: 533 P.2d 123,85 Wn.2d 207
• Parties: STATE of Washington, Petitioner, v. Austin Wendle SHOEMAKER and Steven Allen McDirmid, Respondents.
• Court: Washington Supreme Court

Page 207

85 Wn.2d 207

533 P.2d 123

STATE of Washington, Petitioner, v. Austin Wendle SHOEMAKER and Steven Allen McDirmid, Respondents.

No. 43418.

Supreme Court of Washington, En Banc.

March 20, 1975.

Review Denied April 30, 1975.

Robert F. Patrick, Prosecuting Atty., Colfax, for petitioner.

William J. Powell, Spokane, for respondents.

FINLEY, Justice.

The defendants herein were prosecuted for possession of more than 40 grams of controlled substances. The defense rested solely on a motion to suppress evidence on the grounds it was the product of an illegal search and seizure. This evidence was very substantially over 40 grams of controlled substances found in the spare tire compartment in the trunk of defendants' panel truck. The motion was denied and the defendants were convicted. The Court of Appeals reversed and this court subsequently granted a petition for review.

The facts are as follows: On March 2, 1972, apparently between 4:30 and 5:00 p.m., defendant Shoemaker, accompanied by defendant McDirmid, was driving his 1953 panel truck on U.S. Highway 195 at a speed of 45 to 50 miles per hour. Deputy Sheriff Clift was traveling on the same highway in the same direction in an unmarked vehicle. Deputy Clift approached defendants' vehicle from the rear and noticed that a left rear taillight lens was missing and that a white light was shining to the rear. The deputy passed the panel truck, observed defendant Shoemaker driving and largely as a matter of intuition became suspicious that the vehicle might contain controlled substances. The deputy subsequently pulled off the highway, let the defendants pass, and then pulled in behind the defendants again. Near Plaza, Washington, the defendants pulled off the highway and let some cars, including the deputy's vehicle, pass them. Deputy Clift then radioed ahead to the Washington State Patrol in Rosalia, advised them of the description of defendants' vehicle, of the faulty left-rear taillight lens, and that he would like to see the vehicle stopped because of his suspicions regarding possession of controlled substances by the occupants of the panel truck.

The defendants subsequently pulled into a drive-in in Rosalia. Trooper Sly, who had heard Deputy Clift's broadcast, pulled in next to the defendants' truck and noticed the defective taillight lines. Defendant McDirmid went into the drive-in. Defendant Shoemaker approached Trooper Sly, and they discussed the taillight. Trooper Sly then entered the vehicle ostensibly to check the brakes, which he found satisfactory. But while in the truck, Trooper Sly detected the odor of marijuana.

Trooper Small then arrived at the drive-in, and was advised by Trooper Sly of the proper functioning of the brakes and of the odor of marijuana. Trooper Sly then left the scene and Trooper Small then entered the truck and made his own inspection of the brakes at which time he observed a 'roach clip' between the bucket seats in a litter container with what appeared to him to be a residue of marijuana on it. By this time, Deputy Clift had arrived and stationed himself on the driver's side of the vehicle.

Thereafter, Trooper Small arrested defendant McDirmid and read him his Miranda rights. Prior to searching defendant McDirmid, Trooper Small advised him that it would be easier if he would produce any contraband that he might have. Defendant McDirmid handed over a bag of marijuana. Trooper Small then advised McDirmid that the entire truck would be searched and that it would be easier if he told the trooper where any contraband was located. McDirmid then told Trooper Small that more contraband could be found in the spare-tire compartment. Trooper Small looked and found a very substantial amount of contraband. It was this evidence that gave rise to the instant prosecution. During this time, Deputy Clift had arrested defendant Shoemaker, gave him his Miranda warnings, searched him, and found 1 gram of hashish.

The broad issue is whether the evidence discovered in the panel truck was the product of an illegal search and seizure.

The State offers two theories to justify the warrantless search of the truck of the vehicle. The First theory is that the search is justifiable under the vehicle inspection doctrine of 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). This argument is comprised of three parts: (a) the Initial entry into the vehicle can be justified either by RCW 46.64.070, which authorizes the State Patrol to enter vehicles for equipment inspections, or alternatively, the troopers had authority to stop the vehicle for driving with a defective taillight and to conduct an incidental search inside the vehicle for further evidence of the tail-light infraction; (b) once inside the vehicle, the troopers smelled marijuana and observed a 'roach clip' with what appeared to be a residue of marijuana on it. This gave the troopers probable cause to believe a crime was being committed, Viz., possession of marijuana; (c) thus, Trooper Small was authorized to search the truck of the vehicle pursuant to the Carroll-Chambers doctrine. The defendant counters this theory with the argument that the original entry into the panel truck was a mere pretext to search for evidence which the troopers did not have probable cause to believe was in the truck. Defendant argues that under State v. Michaels, 60 Wash.2d 638, 374 P.2d 989 (1962), such a search is illegal and the fruits thereof must be suppressed.

The Second theory of the State is that notwithstanding the possible impropriety of the original entry into the truck, and the possible impropriety of the arrest of the defendants which was related to the original entry, defendant McDirmid validly consented to the search of his person and of the truck of the vehicle. We agree with the State that a Valid consent was given and that as a consequence of this we need not consider the validity of the State's first theory.

The burden is upon the State to demonstrate that consent to a search was voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). In this regard, the record shows that Trooper Small testified as follows:

Q. And, then you say you told Mr. McDirmid you were going to search him and life would be easier if he had anything on him to produce it rather than to cause you to take it off of him? Words to that effect?

A. To that effect, yes.

Q. And, that's when you said he pulled out a bag of substance which appeared to be marijuana and handed it to you?

A. Yes, sir.

* * *

* * *

Q. All right.

A. Then prior, after the search I asked him again with reference to the Chevrolet panel if there was anything there why didn't he tell us where it was at.

Q. You also indicated to him at that time you were going to search the panel?

A. Yes, sir.

Q. It would save having the car dismantled possibly if they produced anything that was there?

A. More or less, yes.

The defendants rely upon Bumper, supra, where a 66-year-old, apparently uneducated, black widow who lived in a house in an isolated rural area 'consented' to a search of her home after four white officials asserted they had a warrant to search the home. The alleged 'consent' was determined to be 'instinct with coercion' because it was obtained pursuant to an erroneous claim of lawful authority to search; thus the 'consent' was held to be involuntary. Defendants argue the officials in this case similarly asserted an erroneous claim of lawful authority to search, which rendered the situation 'instinct with coercion' and the consent involuntary.

Assuming arguendo that Trooper Small would not otherwise have had a right to search the trunk of the vehicle, we do not view the situation as being 'instinct with coercion'. What was implicit in Bumper subsequently was made explicit in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973): that the voluntariness of a consent to search is a question of fact to be determined by considering the totality of circumstances surrounding the alleged consent.

Several factors should be considered, including: (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. See Bustamonte and United States v. Heimforth, 493 F.2d 970 (9th Cir. 1974). These factors should be judiciously balanced against each other with no particular factor necessarily being dispositive.

Although defendant McDirmid had not been advised of his right not to consent to the search of the vehicle, he had been given his Miranda warnings, which necessarily means that he had been advised of his right to remain silent. Further, in contrast to the situation in Bumper, McDirmid, as well as defendant Shoemaker, was a college student who presumably had a far greater level of sophistication and education than the black widow whose consent was held to have been involuntary.

Under these circumstances, we do not think that the consent of McDirmid to the search of the trunk of the vehicle fairly can be described as involuntary. In short, there was a valid consent to the search and the fruits thereof were properly admitted into evidence.

For the indicated reasons, the decision of the Court of Appeals should be reversed. It is so ordered.

HAMILTON, HUNTER, WRIGHT and BRACHTENBACH, JJ., concur.

STAFFORD, C.J., concurs in the result only.

UTTER, Justice (dissenting).

I cannot agree that this search can be upheld or its fruits properly admitted. The facts outlined in the majority opinion indicate that everything about the search was improper. The majority claims only that it can be sustained because defendant McDirmid 'voluntarily' agreed to it. ¹ I do not believe the demands of the Fourth Amendment can be so lightly cast aside.

Since...