                                                                FILED 

                                                              NOV. 14,2013 

                                                      In the Office of the Clerk of Court 

                                                     WA State Court of Appeals, Division III 




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


STATE OF WASHINGTON,                         )         No. 31000-1-III
                                             )
                      Respondent,            )
                                             )
              v.                             )         UNPUBLISHED OPINION
                                             )
RODOLFO GALVAN,                              )
                                             )
                      Appellant.             )

       KULIK, J.   - Benton County charged Rodolfo Galvan with unlawful possession of

a controlled substance and possession of drug paraphernalia after methamphetamine was

found in the car Mr. Galvan was driving. Mr. Galvan appeals. He contends that the trial

court erred in denying to suppress the evidence found in the car and the statements he

made to police. We conclude the trial court properly denied the motion to suppress and

we, therefore, afftrm the convictions.

                                         FACTS

       On March 24, 2011, at approximately 10:45 p.m., Mr. Galvan was driving home

alone when he was stopped by Washington State Patrol Trooper David Brandt. Trooper

Brandt initiated the stop because he noticed that one of the vehicle's headlights was
No. 31000-I-II1
State v. Galvan


inoperative. Upon contacting Mr. Galvan, Trooper Brandt detected the odor of fresh

marijuana emitting from the vehicle. Trooper Brandt also noticed that Mr. Galvan was

acting nervous. Trooper Brandt questioned Mr. Galvan about whether there was

marijuana in the vehicle. Mr. Galvan told Trooper Brandt that there was none. Trooper

Brandt ordered Mr. Galvan out of the vehicle, handcuffed him, and detained him to

investigate. Trooper Brandt noticed that the marijuana odor changed to burnt marijuana

coming from Mr. Galvan.

      Trooper Brandt took Mr. Galvan to the front ofthe patrol car and read Mr. Galvan

his constitutional rights. Trooper Brandt's report was written two days after the incident

and did not include any information about Mr. Galvan's acknowledgement of his rights or

his waiver of those rights. However, at the suppression hearing over one year later,

Trooper Brandt testified that Mr. Galvan stated that he understood his rights and agreed to

talk to Trooper Brandt.

      Trooper Brandt asked about Mr. Galvan's last use of marijuana. Mr. Galvan told

Trooper Brandt that he last smoked marijuana two months ago. Trooper Brandt then had

Mr. Galvan tilt his head back. Trooper Brant noticed that Mr. Galvan's eyes were

fluttering, consistent with recent marijuana use. Trooper Brandt also noticed that Mr.




                                             2

No. 31000-1-111
State v. Galvan


Galvan's taste buds were green, also consistent with marijuana use. Mr. Galvan then

admitted that he smoked marijuana two hours earlier.

       Mr. Galvan was placed under arrest for possession of marijuana. Trooper Brandt

searched Mr. G'alvan and located approximately $1,100 in cash in Mr. Galvan's pockets

and wallet. Trooper Brandt did not find any marijuana. The search occurred prior to Mr.

Galvan being placed in the patrol car.

      Mr. Galvan did not sign the consent form to search the vehicle. From outside of

the vehicle, Trooper Brandt observed a blue padlocked gun case on the rear passenger

side floorboard. Trooper Brandt asked Mr. Galvan what was in the case and Mr. Galvan

said it was a lighter. Trooper Brandt did not believe that the case contained a gun or that

Mr. Brandt was prohibited from carrying a gun.

      Trooper Brandt seized Mr. Galvan's vehicle and had it towed to the Washington

State Patrol bullpen. Trooper Brandt released Mr. Galvan and told him that he would

forward charges for the possession of marijuana to the Benton County Prosecuting

Attorney. The charge was based on Trooper Brandt's observations and the marijuana

odor emitting from Mr. Galvan.

      After impounding the vehicle, Trooper Brandt completed a search warrant

affidavit for the vehicle. Trooper Brandt called Judge Dan Kathyrn and read the affidavit



                                             3

No. 31000-1-111
State v. Galvan


to the judge. The affidavit requested permission to search the vehicle for controlled

substances including but not limited to marijuana and any evidence of distribution of

those controlled substances. Judge Kathryn gave permission to affix his signature to the

search warrant.

         The search warrant completed by Trooper Brandt contained additional information

that was not included in the affidavit read to Judge Kathryn. The search warrant also

allowed for the search of the "[e ]ntire vehicle including engine compartment, covered bed

of vehicle, all interior compartments, any open, closed, locked or otherwise sealed

containers/compartments located inside or outside of the vehicle." Clerk's Papers (CP)

at 63.

         The glove compartment of the vehicle was locked. Trooper Robert Morris

unlocked the glove compartment and found a handgun and a clear bag containing white

powder and small chunks. The troopers also opened the padlocked gun case and found a

lighter and a wooden scoop with white powder residue. In the unlocked center console of

the vehicle, Trooper Brandt found a black digital scale with powder residue. The chunks

and white powder residue tested positive for methamphetamine.

         Mr. Galvan was charged with one count of unlawful possession of a controlled

substance, methamphetamine, and one count of possession of drug paraphernalia. Mr.



                                             4

No. 31000-1-111
State v. Galvan


Galvan sought to suppress his statements to Trooper Brandt and the evidence found in his

car. After a hearing, the trial court denied the motion. A stipulated facts trial was held,

and Mr. Galvan was found guilty of the crimes charged.

       Mr. Galvan appeals. He assigns error to the trial court's denial of his motion to

suppress.

                                        ANALYSIS

       Unlawful Search. Appellate review of a denial of a motion to suppress requires

the court to determine "whether substantial evidence supports the challenged findings of

fact and whether the findings support the conclusions oflaw." State v. Garvin, 166

Wn.2d 242,249,207 P.3d 1266 (2009). "Evidence is substantial when it is sufficient to

persuade a fair-minded person of the truth of the stated premise." State v. Reid, 98 Wn.

App. 152, 156,988 P.2d 1038 (1999). Evidence seized during an illegal search must be

suppressed under the exclusionary rule. State v. Gaines, 154 Wn.2d 711, 716-17, 116

P .3d 993 (2005).

       Mr. Galvan contends that the search of his person was unlawful because he was

not under custodial arrest. He maintains that Trooper Brandt did not intend to take Mr.

Galvan to jail so there was no need for anything more than a brief frisk for weapons.




                                              5

No.31000-1-III
State v. Galvan


       Warrantless searches are "per se" unreasonable under both the state and federal

constitutions. State v. Walker, 136 Wn.2d 678, 682, 965 P .2d 1079 (1998). A search

incident to a lawful arrest is a recognized exception to the warrant requirement. State v.

Boursaw, 94 Wn. App. 629, 632, 976 P.2d 130 (1999) (quoting State v. Smith, 119 Wn.2d

675,678, 835 P.2d 1025 (1992)). The exception allows an officer to search an arrestee

for weapons as a measure to protect the officer, or to search for evidence that may be

destroyed. State v. McKenna, 91 Wn. App. 554, 560-61, 958 P.2d 1017 (1998).

       A valid custodial arrest is a condition precedent to a search incident to arrest. State

v. O'Neill, 148 Wn.2d 564, 587, 62 P.3d 489 (2003). Law enforcement must have

probable cause to arrest and the search must be contemporaneous with the arrest.

McKenna, 91 Wn. App. at 560.

       When an arrest is noncustodial, the justification for the search is absent because

the encounter will likely'be brief, and the motivation to destroy evidence or use a weapon

will be slight. ld. at 561.

       Whether a person is in custody depends on whether a reasonable person under the

same circumstances as the suspect would have considered himself or herself under a

custodial arrest. State v. Reichenbach, 153 Wn.2d 126, 135, 101 P.3d 80 (2004). The test

is objective and hinges on the manifestation of the arresting officer's intent. State v.


                                              6

No. 31000-1-111
State v. Galvan


Salinas, 169 Wn. App. 210, 218, 279 P.3d 917 (2012), review denied, 176 Wn.2d 1002,

297 P.3d 67 (2013).

       Manifestations of intent indicating custodial arrest include handcuffing the suspect

and placing him in the back of the patrol car. State v. Radka, 120 Wn. App. 43, 49, 83

P.3d 1038 (2004). Courts also consider whether the officer infonned the defendant that

he was under arrest. State v. Patton, 167 Wn.2d 379,387,219 P.3d 651 (2009).

       The search of Mr. Galvan was a lawful search pursuant to a custodial arrest.

Under the circumstances, a reasonable person under the same circumstances as Mr.

Galvan would have considered himself or herself under a custodial arrest. Trooper

Brandt told Mr. Galvan that he was under arrest. Trooper Brandt ordered Mr. Galvan out

of the vehicle, handcuffed him, took Mr. Galvan to the front of the patrol car, and

questioned him about marijuana use. Trooper Brandt told Mr. Galvan that he was being

detained for the possession of marijuana and read Mr. Galvan his constitutional rights.

Mr. Galvan then admitted that he smoked marijuana two hours earlier. There is no

indication that Mr. Galvan was free to leave. Mr. Galvan's subsequent release after the

arrest does not negate Trooper Brandt's intent to place Mr. Galvan under custodial arrest

for narcotics possession.

       The search of Mr. Galvan was not unlawful.



                                             7

No. 31 OOO-l-III
State v. Galvan


       Search ofthe Locked Compartments and Particularity Requirement tor Warrant.

"Whether a warrant meets the particularity requirement of the Fourth Amendment is

reviewed de novo." State v. Stenson, 132 Wn.2d 668,691,940 P.2d 1239 (1997).

       Mr. Galvan contends that the search of the locked glove compartment and locked

container in the vehicle exceeded the scope of the search warrant because Trooper Brandt

failed to particularly identity these areas in the affidavit to search.

       The particularity clause of the Fourth Amendment requires search warrants to

specifically identity both the location to be searched and the items to be seized. U.S.

CONST. amend. IV. "The purpose of the particularity requirement is to prevent the State

from engaging in unrestricted 'exploratory rummaging in a person's belongings' for any

evidence of any crime." State v. Askham, 120 Wn. App. 872, 878, 86 P.3d 1224 (2004)

(quoting Coolidge v. New Hampshire, 403 U.S. 443, 467,91 S. Ct. 2022,29 L. Ed. 2d

564 (1971». The description of the items sought in the search must be as specific as

circumstances permit. Stenson, 132 Wn.2d at 692. The description of the location to be

searched must identity the location adequately enough so that the officer executing the

warrant can, with reasonable care, identity the place intended. State v. Cockrell, 102

Wn.2d 561, 569-70,689 P.2d 32 (1984).




                                               8

No. 3IOOO-I-III
State v. Galvan


        Here, the search warrant and accompanying affidavit described with particularity

the location to be searched and items to be seized. Both the affidavit and the search

warrant identified the car driven by Mr. Galvan as the location to be searched. Also, both

identified the items to be seized as controlled substances including but not limited to

marijuana, any evidence of distribution of those controlled substances, and any evidence

of exercise of domain and control of the vehicle. The search of the locked glove

compartment and the padlocked case were within the particular scope of the search

warrant as they both were inside the car and both could possibly contain evidence of

controlled substances. The particularity clause was not violated.

        The fact that the search warrant gave more detail than the affidavit does not

invalidate the search. The search warrant merely clarified that the entire vehicle would be

searched, including all interior compartments, any open, closed, locked, or otherwise

sealed containers and compartments located inside or outside of the vehicle. These areas

are all areas inside the vehicle that could contain evidence of controlled substances. The

search warrant did not change the parameters of the search that Judge Kathym agreed

upon.

        Mr. Galvan relies on State v. Monaghan, 165 Wn. App. 782,266 P.3d 222 (2012)

to establish that particular permission must be obtained before conducting a search of a



                                              9

No. 31 OOO-I-III
State v. Galvan


locked container. Mr. Galvan's reliance on Monaghan is misplaced. Monaghan involved

the scope of a search based on a person's consent to the area to be searched, which did

not include a locked safe inside the vehicle. Id. at 789. Here, Mr. Galvan's consent to the

search is not at issue. Instead, in Washington, when a warrantless search of a vehicle

occurs incident to arrest, and the officer discovers a locked container or glove

compartment, the officer must first obtain a warrant before unlocking and searching those

areas. State v. Vrieling, 144 Wn.2d 489,492,28 PJd 762 (2001). Trooper Brandt

obtained a search warrant before searching the vehicle and its locked compartments and

containers. Particular permission to search the locked compartments and containers was

within the scope of the search warrant.

       The search warrant did not violate the particularity requirement of the Fourth

Amendment.

      Knowing. Intelligent. and Voluntary Waiver ofRights. Mr. Galvan contends that

the trial court erred by denying to suppress the statements he made to Trooper Brandt.

Mr. Galvan contends that he did not knowingly, intelligently, and voluntarily waive his

rights before making the statements.

       Prior to a custodial interrogation, a defendant must be warned of his right to

remain silent and the right to the presence of an attorney. Miranda v. Arizona, 384 U.S.



                                             lO
No. 31000-I-III
State v. Galvan


436,444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). A defendant can waive these rights

given in a Miranda warning provided that the wavier is knowing, voluntary and

intelligent. State v. Bradford, 95 Wn. App. 935, 944, 978 P.2d 534 (1999). The State

bears the burden of proving voluntariness by a preponderance of the evidence. State v.

Braun, 82 Wn.2d 157, 162,509 P.2d 742 (1973). "When a trial court determines a

confession is voluntary, that determination is not disturbed on appeal if there is

substantial evidence in the record from which the trial court could have found the

confession was voluntary by a preponderance of the evidence." State v. Aten, 130 Wn.2d

640, 664, 927 P .2d 210 (1996).

       In determining whether a defendant voluntarily waived Miranda rights, the

appellate court considers the totality of the circumstances. State v. Allen, 63 Wn. App.

623,626, 821 P.2d 533 (1991). The test for voluntariness is whether '''the confession [is]

the product of an essentially free and unconstrained choice by its maker.'" State v.

Thompson, 73 Wn. App. 122, 131,867 P.2d 691 (1994) (quoting Schneckloth v.

Bustamonte, 412 U.S. 218,225,93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973». Factors that a

court considers in assessing the totality of the circumstances include the defendant's

physical condition, age, mental abilities, experience, and the conduct of the police. Aten,

130 Wn.2d at 664. A voluntary waiver need not be expressed; it may be implied by the


                                             11 

No. 31 OOO-l-III
State v. Galvan


facts and circumstances under which the statement is made. State v. Haverty, 3 Wn. App.

495,498,475 P.2d 887 (1970).

       Here, the trial court did not err by denying Mr. Galvan's motion to suppress his

statements. There is substantial evidence in the record to support the trial court's

determination that Mr. Galvan gave a knowing, voluntary, and intelligent waiver after

being given a Miranda warning by Trooper Brandt. The trial court concluded that Mr.

Galvan waived his constitutional rights and knew what he was doing at the time as

indicated by his subsequent decision to deny consent to search the vehicle. Indeed, the

report filed by Trooper Brandt indicated that Mr. Galvan knew enough to deny consent to

search his car. Based on this denial, it can be deduced that Mr. Galvan also knew that he

had the right to choose whether or not to answer Trooper Brandt's questions. In fact, Mr.

Galvan chose not to answer at least one of the questions posed by Trooper Brandt.

Although Mr. Galvan seemed nervous when answering the questions, there is no evidence

that Mr. Galvan did not know that he could refuse to answer the questions.

      Trooper Brandt informed Mr. Galvan that he was under arrest for possession of

marijuana and read to Mr. Galvan the constitutional rights provided to him. There is no

evidence that Trooper Brandt subjected Mr. Galvan to any threats, trickery, or

intimidation to elicit answers to the questions. The evidence is sufficient to show that Mr.



                                             12 

No.31000-I-II1
State v. Galvan


Galvan knew his rights, and voluntarily, knowingly and intelligently waived them when

he made his statements.

      The trial court did not err in denying Mr. Galvan's motion to suppress statements

made to Trooper Brandt.

      We affirm.

      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.


                                         Kulik, J.

WE CONCUR:




Brown, 1.
                                             ~#~.It~ 

                                         Siddoway, A.C.J.




                                            13 

Renee S. Townsley
                                         The Court ofAppeals                                     500 N Cedar ST 

Clerk/Administrator                             ofthe                                   Spokane, WA 99201-1905 


(509) 456-3082                           State of Washington                                  Fax (509) 456-4288
TDD #1-800-833-6388                             Division III                      http://www.courts.wa.govlcourts




                                            November 14,2013
E-mail                                                    E-mail
Emily Kay Sullivan                                       Andrew Kelvin Miller
Benton County Prosecutor                                 Benton County Prosecutors Office
7122 W Okanogan PI Bldg A                                7122 W Okanogan PI Bldg A
Kennewick, WA 99336-2359                                 Kennewick, WA 99336-2359
Michelle Tobin Trombley                                  Norma Rodriguez
Rodriguez & Associates, P.S.                             Rodriguez & Associates, PS
7502 W Deschutes PI                                      7502 W Deschutes PI
Kennewick, WA 99336-7719                                 Kennewick, WA 99336-7719
mtrombley@rodriguezlawwa.com                             norma@rodriguezlawwa.com
                      CASE # 310001
                      State of Washington v. Rodolfo Galvan
                      BENTON COUNTY SUPERIOR COURT No. 111006691

Counsel:

         Enclosed please find a copy of the opinion filed by the Court today.

         A party need not file a motion for reconsideration as a prerequisite to discretionary review by the
Supreme Court. RAP 13.3(b); 13.4(a). If a motion for reconsideration is filed, it should state with
particularity the pOints of law or fact which the moving party contends the court has overlooked or
misapprehended, together with a brief argument on the pOints raised. RAP 12.4(c). Motions for
reconsideration which merely reargue the case should not be filed.

           Motions for reconsideration, if any, must be filed within twenty (20) days after the filing of the
opinion. Please file an original and two copies of the motion. If no motion for reconsideration is filed,
any petition for review to the Supreme Court must be filed in this court within thirty (30) days after the
filing of this opinion (may be filed by electronic facsimile transmission). The motion for reconsideration
and petition for review must be received (not mailed) on or before the dates they are due. RAP 18.5{c).

                                                   Sincerely,

                                                   ~)J0~                                                    

                                                   Renee S. Townsley
                                                   Clerk/Administrator
RST:pb
Enc.

c: 	     E-mail
         Hon. Craig Matheson
c: 	     Rodolfo Galvan
         1055 E 27th Ave.
         Kennewick, WA 99337-5552
