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      IN THE COURT OF APPEALS OF THE STATE OF WASHING

                                       DIVISION II

STATE OF WASHINGTON,                                             No. 42751 6 II
                                                                           - -


                              Respondent,

        V.




RUSSEL A.FORD,                                             UNPUBLISHED OPINION




        HUNT, J. —Russel A. Ford appeals his jury trial conviction for heroin possession. He

argues that the superior court erred in denying his motion to suppress evidence that officers

found in his backpack during the warrantless search of a vehicle in which he had been a

passenger, to   which vehicle search the driver had consented. Ford contends that this search


violated his Fourth Amendment right to be free from unreasonable searches and his right to

privacy under the Washington Constitution, article 1,- 7, because the vehicle's driver had -
                                                    section

no authority to consent to the search of his backpack that he left in the vehicle's backseat. We

hold that the superior court did not err in denying Ford's motion to suppress because (1)the

vehicle driver's consent authorized the warrantless search of the vehicle and its contents, and (2)

the officer had no way of knowing that the backpack, which bore no external identification,

belonged to Ford. We affirm.




1
    U. .CONST. amend. IV.
     S
No. 42751 6 II
          - -



                                            FACTS


        While watching the Hoquiam home of a suspect in another case, Officer Brian Dayton

observed a vehicle pull over at the suspect's house. When Dayton pulled up behind the vehicle,

it quickly drove away. Without activating his overhead lights or making any show of authority,

Dayton followed the vehicle until it pulled into the " Aberdeen Swanson's"
                                                                         parking lot.

Verbatim Report of Proceedings (VRP) at 8. The driver, Alina Alvarado, was associated with

the suspect in the other case. When she exited the vehicle, Dayton asked her several questions

about whether she had seen this suspect and why she had appeared to be going to stop at his

home.


        Dayton also recognized Alvarado's front seat passenger as Russel A. Ford, for whom

there was an outstanding arrest warrant. Dayton arrested Ford and seated him in the back of the

police car, approximately five or six feet from Alvarado's vehicle.

        Having smelled marijuana when Ford opened his passenger's side door, Dayton told

Alvarado that he could smell marijuana and asked for her consent to search her vehicle.

Alvarado appeared hesitant at first. But after Dayton read her a consent form,she agreed to the
vehicle search, signed the form, and stood by her vehicle while Dayton searched it.

        In the backseat on the passenger side floorboard, Dayton found and searched an unlocked

backpack, which displayed no identifying marks or name tags indicating ownership. Inside the

2 The consent form provided:
        1. I may lawfully refuse to consent to the search requested;
        2. If I consent to the search, I can revoke my consent to the search at any time;
        3. I can limit the scope of the consent to the search to certain areas of the
        dwelling premises or vehicle ....
                   /
               I have decided to freely and voluntarily give my consent to the police to
        search and or seize property from the entire dwellingpremises or vehicle.
                     /                                         /
Clerk's Papers (CP)at 7.

                                                2
No. 42751 6 II
          - -



backpack, he found ( )
                   1 several plastic baggies whose contents later tested positive for heroin; 2)
                                                                                              (

several more baggies containing substances later identified as marijuana and methamphetamine;

3)other drug paraphernalia; and (4) "Valentine's Day"card from " lina"to "Rusty."
                                   a                           A                 VRP at
13. At no time during the search did Alvarado revoke consent or limit the search of her vehicle.

        The State charged Ford with heroin possession. Before trial, Ford moved to suppress the

backpack's contents. At the suppression hearing, Dayton testified that (1) "always asks for
                                                                          he

consent first"because that " liminates
                           e               a   lot of extra   paperwork ...   and ...   the process of taking

the vehicle from [the] owner" ; 2) consent form that Alvarado signed included consent to
                            3, ( the
search and or seize property from the ...
           /                                     vehicle ";   and (3) did not ask for Ford's permission
                                                                    he

to search because   the vehicle   was   registered   to Alvarado.      Clerk's   Papers (CP)at    7.   A jury

convicted Ford as charged. Ford appeals.

                                                ANALYSIS


        Ford argues that the trial court should have granted his motion to suppress because (1)in

consenting to the search her vehicle, Alvarado lacked authority to consent to a search of his

backpack in the vehicle's backseat; and (2)the resultant warrantless search of his backpack

violated his Fourth Amendment right to be free from unreasonable searches and his right to

privacy under the Washington Constitution, article 1, section 7. These arguments fail.

                                        I. STANDARD OF REVIEW


        Ford does not assign error to any finding of fact; therefore, we treat the trial court's

findings of fact as verities on appeal. State v. Campbell, 166 Wn. App. 464, 469, 272 P. d 859
                                                                                       3


3VRPat15.
4
    U. .CONST. amend IV.
     S
No. 42751 6 II
          - -



2011) citing' State v Hill, 123 Wn. d 641, 644, 870 P. d 313 (1994)),
      (                           2                  2             review denied, 174

Wn. d 1006 (2012);
  2              State v. Ross, 106 Wn. App. 876, 880, 26 P. d 298 (2001),
                                                           3             review denied,

145 Wn. d 1016, 1 P. d 483 (2002). ,
      2       4    3

       Ford challenges the trial court's legal conclusions that (1)Dayton was not required to

gain Ford's consent because Ford, as a mere passenger, had no authority over the vehicle; and (2)

Dayton was entitled to search all unlocked containers in the vehicle "unless he knew or should

have known that a particular item was the personal effect of a passenger who was not

independently suspected of criminal activity."Br. of Appellant at 1; CP at 6 (CL 4). review
                                                                                   We

a trial court's conclusions of law to determine whether its findings of fact support them.

Campbell, 166 Wn. App. at 469 (citing State v. Mendez, 137 Wn. d 208, 214, 970 P. d 722
                                                             2                  2

1999),
     overruled on other grounds by Brendlin v. California, 551 U. . 249, 127 S. Ct. 2400,
                                                                S

168 L.Ed. 2d 132 (2007)). review de novo a trial court's legal conclusions, including those
                       We

resulting from   a
                     suppression hearing. See Campbell, 166 Wn. App. at 469 (citing State v.

Johnson,   128 Wn. d
                 2      431, 443, 909 P. d 293 (1996)).
                                       2              Here, the trial court's factual findings

support its legal conclusions.

                        II. CONSENSUAL SEARCH OF VEHICLE AND BACKPACK


       Under article 1, section 7 of the Washington Constitution, warrantless searches are per se

unreasonable. State v. White, 135 Wn. d 761, 769, 958 P. d 982 (1998).Limited exceptions to
                                    2                  2

the warrant   requirement        jealously
                            are "`           and   carefully   drawn "';   consent is one such exception.

State v. Hendrickson, 129 Wn. d 61, 70 71, 917 P. d 563 (1996)quoting Arkansas v. Sanders,
                            2          -        2              (

442 U. . 753, 759, 61 L. Ed. 2d 235 (1979),
     S                                    overruled on other grounds by United States v.

Acevedo, 500 U. . 565, 111 S. Ct. 1982, 114 L. Ed. 2d (1991). To show a valid consensual
              S



                                                     2
No. 42751 6 II
          - -


search, the State must meet the following requirements: 1)
                                                        ( The consent must be voluntary; 2)
                                                                                         (

the person granting consent must have authority to consent; and (3) search must not exceed
                                                                   the

the scope of the consent. State v. Reichenbach, 153 Wn. d 126, 131, 101 P. d 80 (2004).Ford
                                                      2                  3

does not contest that Alvarado consented to Dayton's search of her car and its contents. Ford

argues only that Alvarado's authority to consent to the search of her vehicle did not extend to the

search of his backpack on the backseat. We disagree.

           When Dayton arrested Ford and removed him to the patrol car, Ford left his backpack

behind in Alvarado's vehicle. The backpack bore no external indicia of its owner's identity, and

it   was   not   readily recognizable    as   belonging   to   Ford,   or   to   anyone.   Ford neither asserted


ownership of the unmarked backpack nor gave Alvarado andor Dayton any instructions about
                                                        /

the   backpack; instead,      he   was          6,
                                          silent.      Our Supreme Court has distinguished " readily


5
 That the backpack was not obviously identifiable as belonging to Alvarado does not negate her
voluntary consent to search her vehicle and its contents. Compare, State v. Parker, 139 Wn. d
                                                                                           2
486, 987 P. d 73 (1999), which the Washington Supreme Court reversed convictions based on
          2            in
evidence unlawfully seized from personal items that officers knew belonged to non -arrested
vehicle passengers.       Parker, 139 Wn. d
                                        2               Moreover, these vehicle searches occurred
                                                     at 489.

incident to arrest of the vehicles' drivers; they did not involve the drivers' consent to search their
vehicles. Parker, 139 Wn. d at 489. We note that although Arizona v. Gant,556 U. . 332, 129
                        2                                                         S
S. Ct. 1710, 173 L.Ed. 2d 485 (2009),invalidated vehicle searches incident to arrest, it did not
address the consent exception to the warrant requirement for vehicle searches.
           We are aware of no post Gant cases altering the consent exception in the. state of
                                   -
Washington. On the contrary, Division One of our court implicitly recognized the continued
viability of the consent exception in State v. Monaghan, 165 Wn. App. 782, 784, 266 P. d 222
                                                                                       3
2012), which it held that search of a locked container in the truck of a vehicle exceeded the
         in
scope of the owner's consent to search the trunk and, therefore, was illegal under the state
constitution.

6
  See Cantrell, in which our Supreme Court noted that a nonconsenting passenger's silence
during a vehicle's search was "inconsistent with his later claim he retained an expectation of
privacy."State v. Cantrell,.124 Wn. d 183, 191 92, 875 P. d 1208 (1994)citing United States
                                   2           -            2              (
v. Anderson, 859 F.d 1171, 1176 77 ( Cir. 1988)) ( s consent to search automobile was
                   2              - 3d              driver'
applicable to passenger although neither occupant was the owner).

                                                          5
No. 42751 6 II
          - -



recognizable personal effects,"
                              which " re protected from search to the same extent as the person
                                    a

to whom they belong,"
                    from items abandoned or not readily recognizable as personal effects of

persons    under   arrest   or   otherwise       falling within circumstances involving diminished

expectations of privacy. State v..
                                Parker, 139 Wn. d 486, 498 500, 987 P. d 73 (1999) citing
                                              2            -         2              (

State v. Hill, 123 Wn. d 641, 644, 647, 870 P. d 313 (1994)); v. Worth, 37 Wn. App. 889,
                     2                       2             State

892, 683 P. d 622 (1984).
          2

          As our Supreme Court further explained, "[
                                                   Requiring] that an officer obtain each

occupant's permission before     a   search of   a   vehicle   can   be conducted ...   is both unworkable and


goes beyond the requirements of existing federal case law."State v. Cantrell, 124 Wn. d 183,
                                                                                    2
190 91, 875 P. d 1208 ( 1994). We
    -        2                              hold, therefore, that under the circumstances here, after

obtaining Alvarado's consent to search her vehicle and its contents, Dayton was not required also

to obtain Ford's consent to search the vehicle or the backpack in the backseat.


          The Cantrell Court acknowledged that it did not have before it and did not address
whether the driver's consent to search a vehicle would be valid and apply to another occupant
who "overtly objected to the search."Cantrell, 124 Wn. d at 192 93. Similarly, the instant case
                                                     2          -
did not involve any overt assertion by Ford of ownership of the backpack or objection to the
search.

7
   Compare to State v Evans, 159 Wn. d 402, 412 13, 150 P. d 105 (2007),
                                    2             -          3              holding that the
defendant's denial of ownership of a locked briefcase on the backseat of his vehicle did not
constitute voluntary abandonment.
8
  In arguing that Alvarado nevertheless lacked authority to consent to Dayton's search of his
backpack in her car's backseat, Ford relies on State v. Morse, 156 Wn. d 1, 123 P. d 832 (2005).
                                                                     2           3
In Morse, our Supreme Court held, One who has equal or lesser control over a premises does
                                     "
not have authority to consent for those who are present and have equal or greater control."
Morse, 156 Wn. d
             2        at 4 5. Ford's reliance
                           -                            on misplaced. First, Morse involved a
                                                             Morse is
consensual warrantless search of a home, not a vehicle. Second, it was a mere houseguest who
consented to the home's search and who, the Court held, as a matter of law, lacked authority to
consent to the search of a non -consenting tenant's apartment, despite the subjective beliefs of the
officers who had obtained " onsent"and searched the house. Morse, 156 Wn. d at 4 5:
                          c                                             2        -


                                                         G
No. 42751 6 II
          - -



          We hold that (1)as the vehicle's owner and driver, Alvarado had control over the

vehicle's contents and clear authority to consent to their search, including the backpack in the

backseat; 2) gave her voluntary consent, which authorized the officer's search of her vehicle
          ( she

and its contents; and (3) trial court did not err in denying Ford's motion to suppress. We
                         the

affirm.


          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

040,
2.6.it is so ordered.
 0




                                                     Hunt, J.   J
We concur:




J hanson, A. .
          J.
           C



Ouinn- rintnall, J.
     B




        Ford also relies on another house apartment search case, which similarly does not apply
                                           /
to the consensual vehicle search at issue here: State v Rison, 116 Wn. App 955, 957 58,69 P. d
                                                                                    -        3
362 (2003), review denied, 151 Wn. d 1008 (2004).As our Supreme Court has noted, There is
                                   2                                                  "
less expectation of privacy in an automobile than in either a home or an office."Cantrell, 124
Wn. d at 190. Again, the search at issue here involved a vehicle, not a house. Ford was neither
    2
the owner nor the possessor of the vehicle. He had been seated in the front seat, not near the
backpack in the backseat. The backpack contained no identifying marks suggesting that it
belonged to Ford; nor did he say or do anything asserting ownership that might have alerted
Dayton to seek Ford's consent before searching the backpack.


                                                 7
