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2015 JUL 21 AN 9:. 25
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 44922 -6 -II
Consolidated with No. 46041 -6 -II
Respondent,
V.
UNPUBLISHED OPINION
JOSE ALONSO BERNAL- MARTINEZ,
In re the Personal Restraint Petition of-
JOSEJOSE ALONSO BERNAL-MARTINEZ,
Petitioner.
BJORGEN, A. C. J. — Jose Alonso Bernal -Martinez appeals from his conviction for
possession of a controlled substance with intent to deliver, following a bench trial on stipulated
facts, contending that the trial court erred in denying his motion to exclude evidence obtained
during a warrantless search of his apartment. Bernal -Martinez also submits a personal restraint
petition raising various other claims. Because the trial court erred in denying Bernal-Martinez' s
suppression motion, we reverse.
No. 44922 -6 -II
Cons. w/ No. 46041 -6 -II)
FACTS
Vancouver Police Detective Shane Hall, together with several other officers, stopped a
black Ford Fusion shortly after observing the driver leave an apartment then under surveillance
for suspected drug activity. After determining that the driver spoke only Spanish, Hall, a fluent
Spanish speaker, informed him in Spanish that police suspected him of illegal drug activity. The
driver identified himself as Daniel Ponce -Gutierrez and stated that he had come from the
apartment where he lived.
When Hall asked where he lived, Ponce -Gutierrez described how to get to the apartment
police had just observed him leaving, but did not know the apartment' s address or the name of
the complex. Hall explained that police wished to search the Fusion and the apartment, and
Ponce -Gutierrez responded that they could search both locations. Ponce -Gutierrez stated that he
was the only person living at the apartment and that no one else would be there. Hall then
administered the Ferrierl advisements, and Ponce -Gutierrez again agreed to allow police to
search.
Officers searched the Fusion, but found nothing. Ponce -Gutierrez then agreed to return
to the apartment with the officers. After Hall drove him back to the apartment complex, Ponce -
Gutierrez walked to the apartment, accompanied by Hall and seven other armed, uniformed
officers, and opened the door with a key from the same keychain that held the key to the Fusion.
Ponce -Gutierrez never revoked or limited his consent to search the apartment.
Upon entering the apartment, Hall saw Bernal -Martinez inside. Hall asked who he was,
and Bernal -Martinez identified himself and responded that he was Ponce- Gutierrez' s roommate.
1 State v. Ferrier, 136 Wn.2d 103, 118, 960 P. 2d 927 ( 1998).
2
No. 44922 -6 -II
Cons. w/ No. 46041 -6 -II)
While the other officers waited with Ponce -Gutierrez in the hallway, Hall spoke with Bernal -
Martinez alone in the bedroom.2
While in the bedroom, Bernal -Martinez indicated to Hall that he did not have a warrant
and asked Hall what would happen if he objected to the search. Hall responded by stating, " I' m -
I' m not going to tell you that because I don' t want to influence you. I don' t want to be coercive
in this -- in this case to get your consent." 2 Verbatim Report of Proceedings ( VRP) at 228- 29.
After Hall gave him the Ferrier advisements, Bernal -Martinez orally agreed to let police search
the apartment and signed a Spanish language consent form that also included the Ferrier
advisements. Officers searched the apartment and found more than six pounds of heroin, over
42, 000 in cash, drug packaging materials, and lists of names associated with specific dates and
dollar amounts.
Hall advised Bernal -Martinez of his Miranda3 rights and asked about the items
discovered. Bernal -Martinez admitted to his involvement in illegal drug trafficking and stated
that all the money found derived from drug sales.
PROCEDURAL HISTORY
The State charged Bernal -Martinez with possession of a controlled substance with intent
to deliver. Bernal -Martinez moved to suppress the evidence seized in the search of the apartment
on the grounds that police did not obtain valid consent to search. After holding a hearing under
CrR 3. 5 and 3. 6 to determine the admissibility of the evidence seized and statements Bernal -
Martinez made to police, the trial court ruled the evidence admissible. The trial court entered
2 Other than Bernal-Martinez' s testimony at the CrR 3. 6 hearing, described below, the record
contains little about what transpired in the bedroom. After Bernal -Martinez testified, the court
invited rebuttal testimony, but the State presented none.
3
Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).
No. 44922 -6 -II
Cons. w/ No. 46041 -6 -II)
findings and conclusions in support of its ruling. Particularly relevant here, the trial court' s
written conclusions of law include the following:
4. The State (Plaintiff) has met its burden of showing by clear, cogent and
convincing evidence, that the consent to search given by Defendant Bernal -
Martinez was not a product of any coercion by law enforcement.
5. The search of the residence was lawful and the evidence obtained therefrom is
admissible.
Clerk' s Papers ( CP) at 34- 39. These conclusions and the trial court' s findings challenged by
Bernal -Martinez are discussed in the Analysis below.
Bernal -Martinez waived his jury trial rights and consented to a bench trial on stipulated
facts. Based on the stipulations, the court found each element of the charged offense proved
beyond a reasonable doubt. The court sentenced Bernal -Martinez to 36 months' confinement
and 12 months' community custody.
We granted Bernal- Martinez' s motion to file an untimely appeal. Bernal -Martinez,
acting pro se, filed a timely personal restraint petition, which a commissioner of our court
consolidated with his direct appeal.
ANALYSIS
In his appeal, Bernal -Martinez challenges the trial court' s denial of his suppression
motion, assigning error in whole or in part to the trial court' s findings of fact 9, 12, 14, 15, 16,
21, 24, 25, and 27, and to conclusion of law 4, in which the trial court found that Bernal -
Martinez voluntarily consented to the search. Other than those we address below, Bernal-
Martinez' s challenges to the trial court' s findings concern those facts supporting the trial court' s
determination that Ponce -Gutierrez validly consented to a search. Because we find it
unnecessary to address the validity of Ponce- Gutierrez' s consent, we do not address the
assignments of error that relate solely to that issue.
11
No. 44922 -6 -II
Cons. w/ No. 46041 -6 -II)
Bernal -Martinez contends that the trial court erred in denying his motion to suppress,
because the search violated his right to privacy under article I, section 7 of the Washington
Constitution. In.support of his contentions, he argues first that Ponce -Gutierrez did not have
authority to consent to a search of the apartment, challenging the trial court' s finding that Ponce -
Gutierrez resided there.4 Second, Bernal -Martinez argues that he did not validly consent to the
search because ( 1) no one gave him the Ferrier advisements until after several armed officers
had entered the apartment, ( 2) Hall did not correctly translate the Ferrier advisements and thus
failed to inform Bernal -Martinez that he could limit the scope of his consent to search, ( 3) no one
administered the Miranda advisements before seeking Bernal-Martinez' s consent to search, ( 4)
Bernal -Martinez had only an eighth -grade education, which he received in Mexican schools, and
had no prior experience with the criminal justice system, and ( 5) according to Bernal- Martinez' s
testimony, one officer had pointed a gun at him, and Hall told him the officers would search
whether or not he consented.
After setting forth the standard of review and governing law, we consider whether the
trial court' s unchallenged findings, together with the challenged findings supported by
substantial evidence, properly support its conclusion that evidence obtained in the search is
admissible against Bernal -Martinez even though the officers did not have a warrant. Concluding
that the State failed to meet its burden of demonstrating that Bernal -Martinez voluntarily
consented, and that the court therefore erred in denying the suppression motion, we find it
4
Invoking RAP 2. 5, the State invites this court to refuse to consider Bernal-Martinez' s claim that
Ponce -Gutierrez lacked authority, alleging that he failed to raise the issue in the trial court. As
Bernal -Martinez points out, however, the record shows that he did explicitly challenge Ponce-
Gutierrez' s authority to consent during the CrR 3. 6 hearing. We nonetheless decline to address
the issue because we hold Bernal-Martinez' s consent invalid regardless of whether -Ponce-
Gutierrez had such authority.
5
No. 44922 -6 -II
Cons. w/ No. 46041 -6 -II)
unnecessary to consider the validity of Ponce- Gutierrez' s consent and decline to address the
remainder of Bernal- Martinez' s claims.
A. Standard of Review and Governing Law
In an appeal from a trial court' s denial of a suppression motion, we consider
unchallenged findings of fact verities and review disputed findings for substantial evidence.
State v. Dancer, 174 Wn. App. 666, 670, 300 P. 3d 475 ( 2013), review denied, 179 Wn.2d 1014
2014). Substantial evidence means evidence in the record sufficient to persuade a rational, fair-
minded person of a finding' s truth. Dancer, 174 Wn. App. at 670. We leave credibility
judgments to the trial court. State v. Tyler, 177 Wn.2d 690, 715, 302 P. 3d 165 ( 2013). We
review de novo whether a trial court' s conclusions of law properly follow from the findings of
fact. Dancer, 174 Wn. App. at 670.
Article I, section 7 of the Washington Constitution provides that "[ n] o person shall be
disturbed in his private affairs, or his home invaded, without authority of law." This provision
protects the right to privacy against warrantless searches more extensively than the United States
Constitution' s Fourth Amendment. State v. Morse, 156 Wn.2d 1, 10, 123 P. 3d 832 ( 2005); see
also State v. Eisfeldt, 163 Wn.2d 628, 634- 39, 185 P. 3d 580 ( 2008); Ferrier, 136 Wn.2d at 110-
18; State v. Gunwall, 106 Wn.2d 54, 64- 70, 720 P. 2d 808 ( 1986).
Our courts consider warrantless searches unreasonable per se, unless a recognized
exception to the warrant requirement applies. Dancer, 174 Wn. App. at 671, 675 ( citing State v.
Khounvichai, 149 Wn.2d 557, 562, 69 P. 3d 862 ( 2003). The " narrow exceptions" to the warrant
requirement are " jealously and carefully drawn." Ferrier, 136 Wn.2d at 111 ( internal quotation
marks omitted). " The State must establish the exception to the warrant requirement by clear and
convincing evidence." State v. Garvin, 166 Wn.2d 242, 250, 207 P. 3d 1266 ( 2009).
6_
No. 44922 -6 -II
Cons. w/ No. 46041 -6 -II)
The highest constitutional protection of privacy applies to a person' s residence,
plac[ ing] an onerous burden upon the government to show a compelling need to act outside of
our warrant requirement." State v. Chrisman, 100 Wn.2d 814, 822, 676 P. 2d 419 ( 1984); accord
State v. Ruem, 179 Wn.2d 195, 200, 313 P. 3d 1156( 2013). "` Where the police have ample
opportunity to obtain a warrant, [ courts] do not look kindly on their failure to do so."' State v.
Leach, 113 Wn.2d 735, 744, 782 P. 2d 1035 ( 1989) ( quoting United States v. Impink, 728 F. 2d
1228, 1231 ( 9th Cir. 1984)).
Washington courts recognize consent as a valid exception to the warrant requirement.
Dancer, 174 Wn. App. at 671. The State bears the burden of establishing that the person freely
and voluntarily consented under the totality of the circumstances. Dancer, 174 Wn. App. at 671,
675- 76. The State' s failure to meet its burden of establishing valid consent, or some other
recognized exception to the warrant requirement, renders inadmissible any evidence a
warrantless search yielded. State v. Ladson, 138 Wn.2d 343, 350, 359- 60, 979 P. 2d 833 ( 1999).
In Ferrier, our Supreme Court interpreted article I, section 7 of the Washington
Constitution to impose an additional requirement:
when police officers conduct a knock and talk for the purpose of obtaining consent
to search a home, and thereby avoid the necessity of obtaining a warrant, they must,
prior to entering the home, inform the person from whom consent is sought that he
or she may lawfully refuse to consent to the search and that they can revoke, at any
time, the consent that they give, and can limit the scope of the consent to certain
areas of the home. The failure to provide these warnings, prior to entering the
home, vitiates any consent given thereafter.
7
No. 44922 -6 -II
Cons. w/ No. 46041 -6 -II)
136 Wn.2d at 118- 19 ( footnote omitted). Although Ferrier addressed the knock -and -talk tactic
specifically, the court subsequently stated' that the requirements apply "` when police officers
seek entry to conduct a consensual search for contraband or evidence of a crime."' Ruem, 179
Wn.2d at 205- 06 ( quoting Khounvichai, 149 Wn.2d at 559)
Where, as here, questions arise under article I, section 7 of our state constitution as to
who has authority to give consent to search a particular location and whom such consent binds,
our courts apply the " common authority" standard from United States v. Matlock, 415 U.S. 164,
170- 71, 94 S. Ct. 988, 39 L. Ed. 2d 242 ( 1974) and State v. Mathe, 102 Wn.2d 537, 543- 44, 688
P. 2d 859 ( 1984). Our Supreme Court has made clear, however, that another person' s consent is
never valid against a defendant with equal authority over the premises who is actually present at
the time of the, search. Morse, 156 Wn.2d at 15; accord Leach, 113 Wn.2d at 744 (" Where the
police have obtained consent to search from an individual possessing, at best, equal control over
the premises, that consent remains valid against a cohabitant, who also possesses equal control,
only while the cohabitant is absent.")
The Morse court also explicitly rejected the " apparent authority doctrine" under which
federal courts will uphold a warrantless search against a Fourth Amendment challenge if officers
reasonably believed that the consenting party had the requisite authority, reasoning that " our
constitution focuses on the rights of the individual rather than on the reasonableness of the
government action." 156 Wn.2d at 12.
Because he was present at the time of the search and had authority over the premises at
least equal to Ponce- Gutierrez' s, police had to obtain Bernal- Martinez' s valid consent to render
We acknowledge that only four Justices signed the lead opinion in Ruem. Justice Wiggins' s
separate opinion, however, clearly conformed to the plurality' s view on this point, and would
have extended the Ferrier protections further. 179 Wn.2d at 210- 12.
No. 44922 -6 -II
Cons. w/ No. 46041 -6 -II)
the fruits of the search admissible against him regardless of Ponce- Gutierrez' s authority to
consent to a search. Morse, 156 Wn.2d at 15; Leach, 113 Wn.2d at 744. The trial court
determined in conclusion 4 that Bernal -Martinez had validly consented to the search of the
premises, ruling that the State " met its burden of showing by clear, cogent and convincing
evidence, that the consent to search given by Defendant Bernal -Martinez was not a product of
any coercion by law enforcement." CP at 38. We turn now to the correctness of that
determination.
B. Voluntariness of Bernal- Martinez' s Consent To Search the Apartment
The trial court' s ultimate legal holding in conclusion 5 was that "[ t]he search of the
residence was lawful and the evidence obtained therefrom is admissible" despite the fact that the
officers did not obtain a search warrant. CP at 38.. Whether Bernal -Martinez freely,and
voluntarily consented is a question of fact, Dancer, 174 Wn. App. at 676, a finding dispositive as
to that ultimate legal conclusion. The trial court' s assertion that the State met its burden of
proving Bernal- Martinez' s consent voluntary, designated conclusion of law 4, is effectively a
factual finding that he freely and voluntarily consented. We treat factual determinations that are
erroneously labelled conclusions of law -as findings of fact. State v. Ross, 141 Wn.2d 304, 309, 4
P. 3d 130 ( 2000); Willener v. Sweeting, 107 Wn.2d 388, 394, 730 P. 2d 45 ( 1986). Therefore, we
treat conclusion 4 as a finding of fact.
Our Supreme Court has specified in the search -and -seizure context that the reviewing
court " employs a ` totality of circumstances' test to determine whether the consent was valid."
State v. Bustamante- Davila, 138 Wn.2d 964, 981, 983 P. 2d 590 ( 1999). In Dancer, we
articulated the applicable test as follows:
Whether consent is free and voluntary is a question of fact determined by
the totality of the circumstances, including ( 1) whether police gave Miranda
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No. 44922 -6 -II
Cons. w/ No. 46041 -6 -II)
warnings before obtaining consent; ( 2) the degree of education and intelligence of
the consenting person; and ( 3) whether the police advised the consenting person of
his right to refuse consent. No one factor is dispositive, and other factors may be
considered, including whether the person was cooperative or refused consent before
granting consent, whether law enforcement had to repeatedly request consent, and
whether the defendant was restrained.
174 Wn. App. at 676 ( citations omitted). In State v. Russell, 180 Wn.2d 860, 872, 330 P. 3d 151
2014), our Supreme Court recently held that the State failed to prove a suspect' s consent to
search inside a small container, discovered during a stop and frisk, voluntary where the officer
did not give the Miranda advisements or explain that the suspect could refuse, and the record
contained no evidence regarding the suspect' s intelligence or education.
Returning to the events underlying this appeal, in finding 24 the trial court stated that
Hall provided a " Voluntary Permission to Search" form, written in Spanish, to
Defendant Bernal -Martinez and reviewed the Ferrier warnings with him.
Defendant Bernal -Martinez indicated that he understood the Ferrier warnings and
was willing to give consent for the search. Defendant Bernal -Martinez signed the
Voluntary Permission to Search" form.
CP' at 37. Substantial evidence in the record supports this finding.
In addition, the record shows that ( 1) Hall advised Bernal -Martinez of his right to refuse,
limit the his in clearly Spanish? (2) during the
consent6
revoke, or scope of comprehensible
events at issue, Bernal -Martinez was 26 years old, and knew that police " need[] a warrant from a
6 Bernal -Martinez challenges the validity of his consent based on alleged inadequacies in Hall' s
translation of the Ferrier advisements. The State counters that we should not consider the claim
because Bernal -Martinez did not raise it in the trial court and it relies on matters outside the
record. We agree with the State and decline to address the claim under RAP 2. 5.
Hall testified to extensive education in and experience with the Spanish language, including
having lived and worked in Mexico for two years and earned a Bachelor of Arts degree majoring
in Spanish. Bernal -Martinez testified that, although Hall spoke with an accent and
mispronounced some words, he found Hall' s Spanish easy to understand.
10
No. 44922 -6 -II
Cons. w/ No. 46041 -6 -II)
judge" to search someone' s residence, 2 VRP at 173; ( 3) other than standing, armed, in the
apartment, the officers did nothing to restrain or threaten Bernal -Martinez; and ( 4) Bernal -
Martinez affirmatively agreed orally and in writing to allow the search. Substantial evidence
thus supports the trial court' s findings as to these facts: finding 9 ( finding that Hall speaks
Spanish fluently), finding 24 ( finding that Hall provided the consent form and explained it to
Bernal -Martinez, who stated that he understood and signed it), and finding 27 ( incorporating the
trial. court' s oral ruling, which included findings that Bernal -Martinez was not restrained and
knew that officers needed a warrant).
We also consider the facts supporting these findings in determining whether substantial
evidence supports the trial court' s finding, expressed in conclusion 4, that Bernal -Martinez
voluntarily and freely consented. Even though we accept the truth of these matters, however, on
closer examination we conclude that conclusion 4, properly treated as a finding of fact, is not
supported by substantial evidence.
In considering whether substantial evidence supports a finding, a reviewing court must
consider the question in light of the relevant burden of persuasion: as our Supreme Court
recently stated in the context of a substantial evidence inquiry, "[ w]hen the standard of proof is
clear, cogent, and convincing evidence,$ the fact at issue must be shown to be ` highly probable."'
State v. Dobbs, 180 Wn.2d 1, 11, 320 P. 3d 705 ( 2014) ( quoting In re Welfare ofSego, 82 Wn.2d
736, 739, 513 P. 2d 831 ( 1973)); see also In re Dep. of C.B., 61 Wn. App. 280, 282- 83, 810 P. 2d
518 ( 1991). Thus, " evidence that may be sufficiently ` substantial' to support an ultimate fact in
issue based upon a `preponderance of the evidence' may not be sufficient to support an ultimate
8 We see no effective difference in this analysis between the " clear, cogent and convincing"
evidence standard and the " clear and convincing" evidence standard applicable under Garvin,
166 Wn.2d at 250.
11
No. 44922 -6 -II
Cons. w/ No. 46041 -6 -II)
fact in issue, proof of which must be established by clear, cogent and convincing evidence."
Sego, 82 Wn.2d at 739 ( footnote omitted); accord In re Riley' s Estate, 78 Wn.2d 623, 640, 479
P. 2d 1 ( 1970).
As noted above, we employ a totality of circumstances test, including the specific
considerations listed in Dancer, 174 Wn. App. at 676, to determine whether consent is voluntary.
For several reasons, the totality of the circumstances here fail to supply substantial evidence to a
high probability that Bernal -Martinez voluntarily consented. Indeed, most of the relevant factors
speak against holding Bernal- Martinez' s consent voluntary: ( 1) the officers did not give him the
Miranda advisements prior to seeking consent, ( 2) he has only an eighth grade education from a
non -United States school system and no known prior convictions or other involvement with the
criminal justice system, ( 3) although he was not restrained, multiple armed officers stood in the
entryway of his apartment, ( 4) Hall spent over half a
- n -hour in Bernal- Martinez' s bedroom
repeatedly seeking his consent, and ( 5) officers advised him of his right to refuse consent only
after entering his apartment in force.
We consider this last factor particularly significant. When they entered and saw Bernal -
Martinez, the officers went further inside the apartment rather than giving the Ferrier
advisements and seeking his consent before proceeding. The Ferrier court clearly emphasized
the importance of obtaining consent " prior to entering the home," 136 Wn.2d at 118- 19, in part
because of the " coercive effects" officers are likely to have on residents once inside. 136 Wn.2d
at 115- 16. Alone in his bedroom with Hall, with several armed officers outside, a reasonable
person with Bernal- Martinez' s lack of experience in the criminal justice system and limited
education would not likely feel free to refuse to give consent.
12
No. 44922 -6 -II
Cons. w/ No. 46041 -6 -II)
The State bore the burden of proving valid consent by clear and convincing evidence.
Our inquiry is whether substantial evidence in the record supports the trial court' s finding that
Bernal -Martinez freely and voluntarily consented. The burden of proof, as noted, required the
State' s evidence at the suppression hearing to show it "highly probable" that Bernal -Martinez
freely and voluntarily consented. Dobbs, 180 Wn.2d at 11. Instead, the evidence in the record of
what transpired between Hall and Bernal -Martinez in the bedroom is sketchy at best, and most of
the factors identified in Dancer, 174 Wn. App. at 676, speak against finding his consent
voluntary. We hold that the record, viewed in its totality and through the lens of the State' s
evidentiary burden, does not contain substantial evidence in support of the trial court' s
dispositive finding that Bernal -Martinez freely and voluntarily consented to the search.
C. Admissibility of the Evidence Obtained in the Search
Without a valid finding that Bernal -Martinez freely and voluntarily consented to the
search, the trial court' s findings do not support its ultimate conclusion that the evidence was
admissible against Bernal -Martinez even though the officers did not obtain a warrant. Ladson,
138 Wn.2d at 350, 359- 60. Therefore, the trial court erred in denying Bernal- Martinez' s
suppression motion.
Both the evidence found in the apartment and the statements Bernal -Martinez made when
confronted with it should have been suppressed. See Eisfeldt, 163 Wn.2d at 639- 41. The
improperly admitted evidence comprised the State' s entire case against Bernal -Martinez: absent
the fruits of the warrantless search, his conviction unquestionably rests on insufficient evidence.
We therefore reverse the conviction and dismiss the charge with prejudice. See State v. Z. U.E.,
178 Wn. App. 769, 792, 315 P. 3d 1158 ( 2014); State v. Hopkins, 128 Wn. App. 855, 866, 117
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P. 3d 377 ( 2005). Resolving the matter on this ground, we do not address Bernal- Martinez' s
personal restraint petition or the remainder of his claims on appeal.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
F _)RGF A. C. J.
We concur:
W C . tSWICK. 7.
AJfm_ 111
SUTTON, J.
14