State v. Armenta

Talmadge, J.

(dissenting) — The dispositive issue in this case is whether the initial seizure of Armenta and Cruz was lawful under the Fourth Amendment because the trial court found, and the parties on appeal do not dispute, the defendants freely consented to the search of their vehicle. The trial court here determined consent to the search of their vehicle was vitiated by the illegality of their seizure. The majority agrees. I disagree with the majority’s analysis of the seizure issue, however, believing it has misconstrued the circumstances of the seizure which justify a Terry investigative stop. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). For these reasons, I respectfully dissent.

Consent to search is a recognized exception to the requirements of the Fourth Amendment. State v. Hendrickson, 129 Wn.2d 61, 70-72, 917 P.2d 563 (1996); State v. Hastings, 119 Wn.2d 229, 233-34, 830 P.2d 658 (1992); State v. Bradley, 105 Wn.2d 898, 902, 719 P.2d 546 (1986). Whether a consent to a search is voluntary is a question of fact to be determined from the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973); State v. Shoemaker, 85 Wn.2d 207, 211-12, 533 P.2d 123 (1975). Factors to be considered in evaluating voluntariness may include whether Miranda warnings were given prior to consent (Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 A.L.R.3d 974 (1966)), the education and intelligence of the consenting person, whether the consenting person was advised he or she could refuse to consent, the express or implied authority of the police to search, prior illegal police action, prior cooperation or noncooperation by *19the consenting person, or any police deception as to identity or purpose. State v. McCrorey, 70 Wn. App. 103, 111-12, 851 P.2d 1234, review denied, 122 Wn.2d 1013, 863 P.2d 73 (1993). No one factor is determinative, and neither the Miranda warnings nor the knowledge of the right to refuse consent is prerequisite to a voluntary consent. State v. Smith, 115 Wn.2d 775, 789, 801 P.2d 975 (1990).

However, if a seizure is unlawful, the result of a consequent search is inadmissible, State v. Kennedy, 107 Wn.2d 1, 4, 726 P.2d 445 (1986), and the consent to search may be invalid as well, State v. Soto-Garcia, 68 Wn. App. 20, 23-24 and 26-29, 841 P.2d 1271 (1992), abrogated on other grounds by State v. Thorn, 129 Wn.2d 347, 351, 917 P.2d 108 (1996). Because the trial court specifically found the consent here to be voluntary, the central issue in this case is the legality of the seizure of Armenta and Cruz.

Initially, there is a question as to when Armenta and Cruz were seized. The majority concedes Officer Randles initially came to the assistance of Armenta and Cruz and at some point that assistance ripened into an investigation. The majority determines the defendants were seized when Officer Randles locked their cash up in his vehicle. Majority op. at 12. I agree.

I disagree with the majority, however, that State v. Tijerina, 61 Wn. App. 626, 811 P.2d 241, review denied, 118 Wn.2d 1007, 822 P.2d 289 (1991), and State v. Cantrell, 70 Wn. App. 340, 853 P.2d 479 (1993), aff’d in part, 124 Wn.2d 183, 875 P.2d 1208 (1994), are dispositive of this case. In those cases the initial reason for the seizure was a traffic violation. In each case the Court of Appeals held once the traffic-related purpose of the stop was fulfilled, further detention without a reasonable suspicion of criminal activity was improper, tainting any subsequent consent to search and evidence obtained.

In Tijerina, an officer observed Tijerina’s car weaving over the fog line, stopped him, and, upon verifying Tijerina’s drivers license and registration were valid, decided not to issue him a citation. The Court of Appeals determined at *20that point the legitimate stop for the traffic infraction ended, and the trooper’s continued detention was improper because the bases for that detention were innocuous facts. Tijerina, 61 Wn. App. at 629. Because Tijerina’s subsequent consent to search the car and the cocaine found in the car’s trunk were tainted by the illegal detention, suppression of the evidence was proper. Id. at 628.

Likewise in Cantrell, a trooper observed Cantrell speeding, stopped him and issued a citation. The Court of Appeals held once the purpose for the stop was fulfilled, absent articulable facts giving rise to a reasonable suspicion of other illegal activity, the trooper’s further detention of the car’s occupants was improper, invalidating the subsequent consent given to search the car and tainting the evidence obtained. See Cantrell, 70 Wn. App. at 344, 346.

Central to the disposition of these cases is the continued improper detention which tainted all that followed. Here, however, Officer Randles did not stop Armenta and Cruz for a traffic infraction and then continue to detain them improperly. As noted above, “seizure” of Armenta and Cruz occurred when Officer Randles placed their money in his patrol car. This seizure was valid because the record indicates Officer Randles had a reasonable suspicion of criminal activity based on his knowledge of facts indicating further investigation was appropriate.

The essential basis for investigative stops is set forth in Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) (in justifying the particular intrusion [investigative stop] the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion). See also State v. Kennedy, 107 Wn.2d 1, 5, 726 P.2d 445 (1986). If a law enforcement officer has a well-founded suspicion a person is engaged in criminal activity, the officer may stop the individual for investigative purposes. See also State v. Garcia, 125 Wn.2d 239, 242, 883 P.2d 1369 (1994); State v. Randall, 73 Wn. App. 225, 228, 868 P.2d 207 (1994). We have indicated in evaluating the reasonableness of such an investigative stop, the inquiry is whether the totality of the circumstances confronting the law *21enforcement officer indicate a substantial possibility criminal conduct has occurred or would occur. Garcia, 125 Wn.2d at 242. The policy of Washington law has been to encourage law enforcement officers to investigate suspicious situations. State v. Mercer, 45 Wn. App. 769, 775, 727 P.2d 676 (1986). We want law enforcement officers to scrutinize suspected criminal activity.

The majority appears to suggest an investigation must necessarily be linear in its progression; that is, the reasons for the encounter between a citizen and a police officer must ultimately result in the prosecution for the specific type of criminal violation suspected at the time of the initial encounter. This is not the real world. Encounters between citizens and police may be nothing more than that, encounters. Other situations may ripen into investigative stops and, subsequently, actual arrests. Activities on the street do not necessarily follow the logic of ex post facto evaluators in judicial chambers. The preferable test, in my view, for an analysis of the legality of a Terry investigative stop remains whether, under the totality of the circumstances, the law enforcement officer has well-founded reasons to believe criminal activity has occurred. If, in the course of this investigative stop, the law enforcement officer discovers other criminal violations, the officer may take appropriate action and is not precluded from so doing, as the majority opinion here would suggest.

In this case, Officer Randles’ initial contact with Armenta and Cruz was for an eminently appropriate reason: He offered them assistance with their vehicle. His encounter with Armenta and Cruz, however, ripened into an investigative situation. At the time of the seizure, Officer Randles was faced with numerous suspicious circumstances that would indicate to an experienced police officer criminal activity had occurred or might be occurring. Armenia’s license was suspended. Cruz gave a name which could not be verified.10 Both men were traveling between Idaho and Seattle with large amounts of bundled cash. Cruz said he *23earned his money working at a “ranch” in Seattle, the name of which he could not recall. Armenta claimed to have sold a car for which he still had the title and could provide no proof of sale. Given the implausible explanations for the large amounts of cash and the activities of Armenta and Cruz, Officer Randles could reasonably conclude Armenta and Cruz came by the money in a manner they did not wish to reveal and which was probably illegal. In this era of drug-related traffic with large amounts of cash involved in such transactions, it was not unreasonable for Officer Randles to suspect Armenta and Cruz of having engaged in drug-related activities based on the totality of the facts known to him and the rational inferences from those facts. For these reasons, I believe Officer Randles’ seizure of Armenta and Cruz was not illegal under Terry or Garcia, and their consent to search and consequent convictions must stand.

As a final note, counsel for Armenta and Cruz at oral argument suggested the seizure of his clients was the result of racial stereotyping. He argued Officer Randles detained Armenta and Cruz because of their Hispanic heritage and they fit a putative profile for Hispanic drug offenders. There is nothing in the trial court record to suggest this was the basis for Officer Randles’ behavior and there was no finding by the trial court to this effect. In my view, however, this was at least implicitly the basis for the decision of the Court of Appeals in Tijerina. There, the state trooper testified his suspicions were based on his observations of bars of soap from motels in the glove box of defendant’s car, of the fact the defendant and his companion were Hispanic, and of his knowledge of drug activities by Hispanics in motels in the Spokane area. Such racial stereotyping does not constitute a well-founded suspicion of criminal activity by law enforcement and would not in this case, if the trial court had so found.

*24In the absence of findings by the trial court on racial stereotyping, however, we can only look objectively at the record presented to this Court. On the basis of that record, Officer Randles had ample and well-founded suspicion of criminal activity involving Armenta and Cruz. The Court of Appeals should be affirmed.

Durham, C.J., and Guy, J., concur with Talmadge, J.

The majority opines Cruz giving a false name to Officer Randles cannot be considered in determining whether the seizure of the money was lawful because the officer could not have known Cruz had given a false name until long after the *22officer placed the money in his patrol car. Majority op. at 14. This is not the case. The record indicates Cruz told Officer Randles he had a Washington identification card, but lost it in Idaho. Report of Proceedings at 32. However, when Officer Randles ran the identification check on the name given him by Cruz (Luis Perez Gonzales 12-28-74), no computer record was found. Report of Proceedings at 32, Clerk’s Papers at 15 (Finding of Fact No. 11). This occurred before Officer Randles placed the money in his patrol car. See Clerk’s Papers at 15-16 (Findings of Fact Nos. 14-17). At that point Officer Randles knew Cruz was lying about his identity, a fact which significantly colored the other information the officer already had. Together all served as a foundation for his suspicion he had stumbled onto criminal activity warranting further investigation.

I also disagree with the majority’s view that we must presume Cruz did not make the statement attributed to him by Officer Randles because the trial court’s findings neglect to specifically mention that the identification Cruz purportedly lost in Idaho was a Washington identification card. Majority op. at 14. See also Clerk’s Papers at 14 (Finding of Fact No. 8). In the majority’s view, we must treat the absence of such specific finding as the presumptive equivalent of a negative finding. Majority op. at 14.

Such presumption is inappropriate here. While, in general, the absence of an express finding on a material factual issue is presumed to be a negative finding, based on the failure of proof on that issue, Smith v. King, 106 Wn.2d 443, 451, 722 P.2d 796 (1986), applying such presumption here would ignore a “well-recognized exception” to the rule:

This common law rule must be selectively applied. It should not be determinative on a material issue where the record shows . . . there is ample evidence to support the missing finding, and the findings entered by the court, viewed as a whole, demonstrate that the absence of the specific finding was not intentional.

Douglas NW, Inc. v. Bill O’Brien & Sons Constr., Inc., 64 Wn. App. 661, 682, 828 P.2d 565 (1992); State v. Souza, 60 Wn. App. 534, 541-43, 805 P.2d 237, review denied, 116 Wn.2d 1026, 812 P.2d 103 (1991). Thus, an appellate court may supply a missing finding of fact where there is ample evidence to support the finding and where the remaining findings, viewed as a whole, demonstrate that the trial court’s failure to enter the finding was not intentional. Where there is support in the record for such omitted finding and the omission appears unintentional, the failure to make a finding may be harmless error. Douglas, 64 Wn. App. at 682; see also Fisher Properties, Inc. v. Arden-Mayfair, Inc., 115 Wn.2d 364, 371, 798 P.2d 799 (1990).

Here, the trial court’s findings plainly reflect Cruz’s purported assertion to Officer Randles that his lost identification was a Washington identification card. When Officer Randles asked the two men for identification, Armenia produced an Arizona driver’s license, Clerk’s Papers at 14 (Finding of Fact No. 7), and Cruz gave an alias, stating “he had lost his wallet in Idaho and did not currently have any ID.” Clerk’s Papers at 14 (Finding of Fact No. 8). Officer Randles then called in the names provided by the men “for a drivers check in Arizona and Washington.” Clerk’s Papers at 15 (Finding of Fact No. 14). The ID search in Arizona and Washington databases, as reflected in the findings, is consistent with the information Officer Randles had at the time; that is, Armenia had an Arizona ID and Cruz had a Washington ID. Because the record indicates the lost ID was a Washington identification card, see Report of Proceedings at 32, and this fact is *23consistent with the findings as a whole, the failure of the trial court in Finding No. 8 to identify the ID Cruz purportedly lost in Idaho as a Washington ID appears to he a mere inadvertence and should not bar our consideration of this fact in assessing the reasonableness of the seizure in this case. See Douglas, 64 Wn. App. at 682.