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      IN THE COURT OF APPEALS OF THE STATE OF WASHIN                                                                     Q;
                                                                                                                                                 TD`
                                                    DIVISION II                                                      Y
                                                                                                                            C,         TY
STATE OF WASHINGTON,                                                                       No. 43576 -4 -II


                                        Respondent,                                UNPUBLISHED OPINION

         IM




JEANNE BELLE BARRINGER,


                                        0

        WORGEN, J. —           After denying her motion to suppress evidence of drug possession, the

trial court convicted Jeanne Barringer of possession of a controlled substance following a bench

trial on stipulated facts. Barringer appeals, asking us to reverse the denial of her motion to

suppress, claiming the police unlawfully detained her and coerced her consent to search her

property. We hold that Barringer' s detention was a lawful investigative stop and that she

provided valid consent to the search of her purse. We affirm.


                                                            FACTS


        In February 2012, on a snowy night, Officer Perry Royle responded to the scene of a

collision on       State Route 12     near   Morton,    arriving    at   7: 42 p. m.'    Royle found a Chevrolet Blazer


in a ditch at the side of the road and two people, Barringer and Michael Hartley, sitting inside the

vehicle. When Royle approached, Barringer sat in the driver' s seat and Hartley occupied the

passenger seat. Royle began investigating the collision as a possible traffic infraction and asked

Barringer     what      had happened.    She   stated    that "   she just   drove      off the road."   Reporter' s


Transcript        on   Appeal ( RTA) ( May     30, 2012) at 6.



1 Police use the term " collision" to describe one -car incidents like this one, apparently to avoid
any   confusion with        the term " accident,"   '   Which implies no liability for the collision. See
Reporter'     s   Transcript   on   Appeal (RTA) ( May 30, 2012)              at     5,
                                                                                   4 - 10.
No. 43576 -4 -II



          Washington State Patrol Trooper Nathan Hovinghoff arrived on scene roughly 10

minutes after Royle did. Like Royle, Hovinghoff began investigating the incident as a possible

traffic infraction. He asked Barringer what had happened; and she again stated that she drove off


the road.



          Hovinghoff then noticed that Hartley was the passenger. He found this suspicious

because he had     seen   Hartley driving the   vehicle earlier   in the   day, " trying so hard to look

inconspicuous that he really     stood out."    RTA (May 30, 2012) at 17. After running Hartley' s
name through dispatch, Royle discovered that he had a suspended license. Hovinghoff then


asked Barringer to step out of the SUV (sports utility vehicle) so that he could question her in

private. When asked if she had told the truth about the collision, Barringer admitted that she had


lied and that Hartley had actually driven the car off the road. Hovinghoff arrested Hartley for

driving with a suspended license, handcuffed him, read him his Miranda2 rights, and placed him

in a patrol car.


          Alarmed   at the prospect of "trouble,"      Hartley offered to deal " information" for

consideration on the suspended license charge. RTA (May 30, 2012) at 19. Hartley eventually

told Hovinghoff that the collision occurred while he and Barringer returned from a visit to her

                                                                              3
dealer,   where she   had   purchased an ounce    of   methamphetamine.           Hartley agreed to allow

Hovinghoff to name him in a search warrant for a search of Barringer' s person. During this

conversation, Hartley admitted to driving the car into the ditch. Hovinghoff determined that




2
    Miranda v. Arizona, 384 U.S. 436, 86 S. ' Ct. 1602, 16 L. Ed. 2d 694 ( 1966).

3
    Hartley ultimately did not receive any consideration for this information.

                                                          2
No. 43576 -4 -II



Hartley' s admission gave him "reasonable suspicion that Ms. Barringer had committed the crime

of   making   a   false   statement to a public servant."          RTA (May 30, 2012) at 21

         Hovinghoff returned to the SUV aiW asked Barringer for consent to search her person for

                                                                    Ferrier4
methamphetamine.            Hovinghoff   advised   her   of   her              rights, namely that she could refuse

to consent, restrict where he could looks revoke her consent at any point. Barringer gave

consent for a search of her physical person, but claimed she could not consent to a search of the


SW because it did not belong. to her.

         Hovinghoff searched Barringer and found no methamphetamine. He nonetheless decided


to detain her. He handcuffed her, provided her Miranda rights to her, and placed her in the back


of Royle' s vehicle. Hovinghoff again asked Barringer who had driven the SUV into the ditch,


and again she stated that Hartley had done so. Hovinghoff concluded that Barringer' s admission

gave him probable cause to arrest her for `aking a false statement. Hovinghoff then asked
                                          t

Hartley for more information on where she might have hidden the drugs and sought consent to

search the SUV. Hartley consented and informed Hovinghoff that Barringer' s purse was in the

SUV.
                                                                                                               t
          Hovinghoff returned to Barringer and asked for permission to search her purse, which she


refused to give. Hovinghoff then told Barringer that he would apply for a warrant unless she

consented, but he specifically told her the Judge might not grant his application. Barringer

declined to consent and a search of the vehicle, excluding the purse, disclosed no

methamphetamine.




4
    State v. Ferrier, 136 Wn.2d 103, 118, 9'60 P.2d 927 ( 1998).
                                                               3
No. 43576 -4 -H



         At this            Hovinghoff determin 6d the
                                                -                           because
                                                                                                           snows




                    point                                scene was unsafe             of   the   falling

and summoned a local company to tow the SUV to Morton. Hovinghoff drove Hartley to the

company' s offices; Royle took Barringer. At 8: 57 p.m., Hovinghoff summoned a canine unit to

the tow company' s lot to search for the methamphetamine and began to write out an application
                6
for   a warrant.




          Around this time Hovinghoff decided a strip search of Barringer was necessary.

Hovinghoff asked Barringer whether she would consent to allowing a newly arrived female

officer to perform the search and she said she would. Barringer and the officer went to the


Morton police station for the search, which disclosed no drugs.


          When Barringer returned, Hovinghoff resumed applying for a warrant to search her

purse. Meanwhile, Barringer and the female officer sat and talked in the back of the officer' s


squad car. Barringer eventually consented to a search of the purse after telling the officer she

was concerned Hovinghoff would find a small amount of marijuana and being assured that

Hovinghoff would not care about that. Hovinghoff once again gave Barringer her Ferrier

warnings and Barringer told Hovinghoff ftot to look in the purse' s front pocket. Hovinghoff

informed Barringer that, if he did not get consent to search the whole purse, he would apply for a

warrant, which a judge might not grant. tarringer then consented to a search of the whole purse,

and Hovinghoff found two plastic bags containing methamphetamine. Based on this evidence,

Hovinghoff arrested Barringer for possession of methamphetamine at 10: 38 p.m.




5 This was not an unreasonable decision. A semi -truck had nearly collided with one of the police
vehicles after losing control on the slick road.
6
    The canine unit later arrived, but the dogs never alerted while passing by the SUV or a
collection of purses that included Barringer' s.
                                                         4
No. 43576 -4 -II



        The State charged Barringer with possession of a controlled substance in violation of

RCW 69. 50.4013    and   RCW 69. 50.206( d)( 2).'   Barringer moved to suppress evidence of the


methamphetamine, contending that the scope of the investigative stop exceeded constitutional

Emits due to its duration and that she had not given valid consent for the search of the purse. On


the motion to suppress, the trial court found that the police began the stop to investigate the

collision and had expanded the stop to investigate Hartley' s driving with a suspended license,

Barringer' s false statements, and Barringer' s possession of methamphetamine. The trial court


further found that Hovinghoff had specifically told Barringer that he could not search her purse

without her knowing and voluntary consent or a warrant. The trial court also found that

Hovinghoff specifically told her that, in the absence of consent, he would apply for a warrant and

that a judge might not grant his application. Based on these findings, the trial court concluded


that the initial detention of Barringer to investigate the collision was lawful and that police


continued to lawfully detain Barringer while they investigated other crimes. The trial court also

concluded that Barringer voluntarily consented to the search of her purse. From these

conclusions, the trial court denied Barringer' s motion to suppress. Barringer proceeded to a


bench trial on stipulated facts, and the trig court found her guilty.

        Barringer appeals the trial court' s denial of her motion to suppress the evidence found in


her purse, asking that we reverse the trial court' s order, reverse her conviction, and dismiss the

charges against her with prejudice.




7 These provisions make it unlawful to possess methamphetamine or its salts, isomers, or salts of
isomers.


                                                     5
No. 43576 -4 -II



                                                           ER E--       7.
                                                                         W


         Barringer challenges several of the trial court' s findings and conclusions supporting its

ruling that the police lawfully detained Barringer as part of a valid investigative stop and that she

provided voluntary consent to the search 'of her purse. We review a trial court' s findings of fact

regarding the suppression of evidence to determine if substantial evidence supports them. State

v.   Winterstein, 167 Wn.2d 620, 628, 220                 P. 3d 1226 ( 2009). We find such evidence " where there

is a sufficient quantity of evidence in the record to persuade a fair -
                                                                      minded, rational person of the

truth   of   the   finding." State   v.   Schultz, 170 Wn. 2d 746, 753, 248 P. 3d 484 ( 2011). Unchallenged

findings      are verities on appeal.       State   v.   Eserjose, 171 Wn.2d 907, 912, 259 P. 3d 172 ( 2011). We


review de novo the trial court' s conclusions that the investigative stop was valid and that

Barringer      consented to the search of       her parse. Winterstein, 167 Wn.2d at 628.


                                                    I. FINDINGS OF FACT


             Barringer first challenges finding of fact 1. 7, which states, in relevant part, that " Trooper

Hovinghoff recognized Mr. Hartley as the driver of the same Chevy at approximately 1630 hours

that same      day." Clerk' s Papers ( CP) at 5. As Barringer correctly argues, no evidence in the

record established the time of Hovinghoff' s previous encounter with Hartley. Therefore, we

vacate the portion of this finding of fact stating that the encounter occurred at 4: 30 p.m.

             Barringer next challenges finding bf fact 1. 12 and 1. 28, which provide that the officers

found Hartley credible based on his cooperation, willingness to allow Hovinghoff to name him in

the warrant application, previous interactions with the officers, and the level of detail he


provided in discussing Barringer' s methamphetamine possession. Barringer claims that the

officers' subjective belief in Hartley' s reliability is irrelevant to the existence of probable cause.


                                                                    n
No. 43576 -4 -
             II



We need not vacate the trial court' s findings of fact because Barringer disagrees with a legal

conclusion drawn from them and, regardless, find the officers' subjective intent relevant because


Barringer raises claims of pretext. The officers testified they found Hartley credible based on the

factors described. We therefore find substantial evidence supporting the findings and affirm

them.



            Barringer next challenges finding of fact 1. 15, which states, in relevant part, that

 Trooper Hovinghoff conducted a pat -down search of the outside of the Defendant' s clothing

and   did   not   locate anything."   CP at 7. Barringer claims that " Hovinghoff did not reveal how he


conducted the initial search of [Barringer' s] person" and asks that we vacate the finding in that

regard. Br. of Appellant at 5 n. 5. Hovinghoff testified that he sought and obtained Barringer' s


permission to search her person. Hovinghoff also testified that Barringer consented and that he


searched her person. Hovinghoff did not need to obtain permission for an inspection using sight

or smell, meaning that a rational, fair -
                                        minded person would interpret his testimony as discussing

      down search.
a pat -                   See State   v.   Tibbles, 169 Wn.2d 364, 373   n. 4,   236 P.3d 885 ( 2010). We find


substantial support for the finding in the record and affirm it.

                                           II. THE SPzzURE OF BARRINGER


            Barringer argues her detention violated her rights to privacy and freedom from

unreasonable seizure for two reasons. First, Barringer contends that the investigative stop

exceeded constitutional boundaries based on its two -and -a -half hour length and the investigative


techniques police used during that time. Second, she claims that the police lacked probable

cause to arrest her for possession and that any justification of the arrest on the grounds that

police had probable cause to believe she had made false statements amounted to pretext.



                                                          7
No. 43576 - -II
          4


Barringer' s first claim fails because police arrested her within a constitutional period of time


after beginning the stop, and they did not use the investigative techniques she objects to before

her arrest. Barringer' s second claim fails because police make a valid warrantless arrest if they

have probable cause to believe the arrester has committed any offense, even if not the one they

announce as the crime of arrest.


A.        The Investigative Stop

          Both parties agree that, at some point, Hovinghoff arrested Barringer, but they dispute

when that happened. Because the limits oti intrusiveness and duration placed on an investigative


stop do not apply to an arrest, Barringer "s elaim requires us to determine ( 1) when Hovinghoff

arrested her, and ( 2) whether the duration and intrusiveness of the investigation before the stop

matured into an arrest exceeded constitutional limits. We hold that the police arrested Barringer


before 8: 57 p. m. and that her detention before that time complied with governing constitutional

standards.



          The Fourth Amendment to the United States Constitution             provides   that "[ t] he right of the



people to be- secure in their persons, houses, papers, and effects, against unreasonable searches

and seizures, shall not   be   violated, and no warrants shall    issue, but   upon probable cause."      The


Fourth Amendment generally requires police to secure a warrant supported by probable cause

before engaging in a search or seizure, subject to limited exceptions. Minnesota v. Dickerson,

508 U.S. 366, 372, 113 S. Ct. 2130, 124 L. Ed. 2d 334 ( 1993). Valid investigative stops and


arrests   for   offenses committed   in the   presence of an officer are   both among the    exceptions    to the
No. 43576 -4 -II



warrant requirement. Terry v. Ohio, 392 U.S. 1, 20, 88 S. Ct. 1868, 20 L. Ed. 2d 889 ( 1968);

Atwater v. City ofLago Vista, 532 U.S. 318, 121 S. Ct. 1536, 149 L. Ed. 2d 549 ( 2001). 8

              An investigative stop allows police to effect a limited warrantless seizure of a person or

property in       order     to confirm or dispel a reasonable suspicion of criminal activity.             United States


V.                            06, 103 S. Ct. 2637, 77 L. Ed. 2d 110 ( 1983). Although supported
     Place, 462 U.S. 696, 702 -


by less than probable cause, an investigative stop is reasonable under the Fourth Amendment

based on a balance of countervailing interests, namely the individual' s interests in freedom from

restraint or search and the State' s interest in the detection and prevention of criminal activity.

Place, 462 U.S. at 703 -06. A stop must be " justified at its inception" and " reasonably related in

scope     to the circumstances            which   justified the interference in the first   place."   Terry, 392 U.S. at

20;    see    State   v.   Ladson, 138 Wn.2d 343, 350, 979 P. 2d 833 ( 1999).           A stop is " justified at its

inception," where officers can " point to specific and articulable facts, which, taken together with


rational inferences from those facts, reasonably warrant" the stop. Terry, 392 U.S. at 19 -22;

State    v.   Arreola, 176 Wn.2d 284, 292 -93, 290 P.3d 983 ( 2012).               A stop is " reasonably related in

scope to the circumstances which justified [the stop] in the first place" where it is minimally

intrusive and of a short duration. Terry, 392 U.S. at 20, 24 -27; see Arreola, 176 Wn.2d at 292-

93. Assuming the police have reasonable suspicions of criminal activity and do not engage in




8
     Article I,   section     7   of   the Washington State Constitution     provides   that "[   n] o person shall be
disturbed in his private affairs, or his home invaded, without authority of law." Regarding

investigative stops, article I, section 7 and the Fourth Amendment provide coextensive protection
from impermissible seizure and we reach the same result whether we analyze Barringer' s appeal
under the state or federal constitutions. See State v. Kennedy, 107 Wn.2d 1, 4 -6, 9, 726 P.2d 445
    1986).


                                                                 L':
No. 43576 -44I



lengthy or intrusive investigation, the stop is reasonable under -he Fourth Amendment because
                                                                 t

the balance of interests favors the State. Terry, 392 U.S. 20 -27.

         In contrast, due to its intrusiveness a custodial arrest cannot be justified by a balancing of

the arrestee' s and State' s interests. See Ferry, 392 U.S. at 25 -27. Instead, the intrusiveness of an

arrest requires justification with probable cause to believe the arrestee has committed a crime.


Dunaway v. New        York, 442 U.S. 200, 208 -12, 99 S. Ct. 2248, 60 L. Ed. 2d 824 ( 1979);     see Terry,

392 U.S. at 25 -27.


         We determine when the police arrested Barringer using an objective test. State v.

Reichenbach, 153 Wn. 2d 126, 135, 101          P. 3d 80 ( 2004). We look to " whether a reasonable

detainee under th[ e] circumstances would consider himself or herself under a custodial arrest."

Reichenbach, 153 Wn.2d at 135.


         Viewing the events objectively, we hold that Hovinghoff arrested Barringer before 8: 57

p.m., the time Hovinghoff testified he summoned the canine unit to the towing company lot.

Barringer claims that the arrest occurred at 10: 38 p. m. because Hovinghoff announced her arrest

for possession at that time. Hovinghoff' s intentions, however, are irrelevant to whether or when


he arrested Barringer. Reichenbach, 153 'Wn. 2d at 135 ( test is objective, rather than the

                                                                              9
subjective   intent   of police officers).   Some   minutes   before 8: 57 p. m. Hovinghoff told Barringer


that he was detaining her. He then handcuffed her, placed her in his squad car where she could


9 Hovinghoff testified that he requested the canine unit at 8: 57 p.m., meaning that he had already
arrested Barringer, called for a tow truck, waited for the tow truck to arrive, and then transported
Barringer to the tow truck' s parking lot by that point. However, because the State bears the
burden of justifying warrantless seizures or arrests, it bears the burden of establishing the time
this stop matured into an arrest. See State v. Potter, 156 Wn.2d 835, 840, 132 P.3d 1089 ( 2006).
Because the State.failed to present evidence as to the actual time of arrest, the best that we can
say is that it occurred sometime before 8: 57 p.m. and consider this the time the investigative stop
ended.

                                                        10
No. 43576 -4 -II



not exit, and gave the Miranda warnings to her. No reasonable person could believe that he or


she could freely leave under these circumstances. Thus, Hovinghoff arrested Barringer at this

point.   State v. Williams, 102 Wn. 2d 733, 740, 689 P. 2d 1065 ( 1984) ( handcuffing     and isolating a

suspect can indicate an investigative stop has become a custodial arrest).

         Having determined when Hovinghoff arrested Barringer, we must then work backward to

see if the investigative stop became invalid before it matured into an arrest. To that end, we

examine the purpose of the stop, the intrusiveness of the investigation, and the length of the stop.

Place, 462 U.S. at 706 -10.


         The first factor, the purpose of the stop, indicates that the officers' actions before

Barringer' s arrest were a constitutionally - ound investigative stop. Barringer asks us to look to
                                            s

the offenses the police were investigating and to conclude a " lengthy and intrusive detention"

was unnecessary. Br. of Appellant at 14. However, under this portion of our analysis we do not

look to the type of crime at issue, but rather whether the police officers' actions related to the


purpose of the stop, such as questioning the suspect to confirm or dispel the suspicions that led to

the stop. Florida v. Royer, 460 U.S. 491, 498 -99, 103 S. Ct. 1319, 75 L. Ed. 2d 229 ( 1983);

Williams, 102 Wn.2d at 740. Royle and Rovinghoff consistently questioned Barringer and

Hartley about the possible crimes they were investigating. At each stage of the investigative

detention, Hovinghoff had his " initial suspicions ...   confirmed or ...   further   aroused," which




allowed him to expand and lengthen the stop as he investigated new crimes. State v. Acrey, 148

Wn.2d 738, 747, 64 P. 3d 594 ( 2003).


         The second factor also weighs in favor of finding this a permissible investigative stop.

Barringer cites some of the more intrusive techniques that Hovinghoff used to investigate, such



                                                   11
No. 43576 -4 -II



as the strip search, and asks us to hold that these rendered the stop unconstitutional. However,
                                                                                                     10
Hovinghoff   and. Royle   did   not   employ these techniques before Barringer'         s- arrest.        During the

investigative stop, Hovinghoff        and   Royle simply     asked   Barringer   questions   to "   obtain[] more



information." Adams v. Williams, 407 U.S. 143, 146, 92 S. Ct. 1921, 32 L. Ed. 2d 612 ( 1972).


Law enforcement agents may ask a detainee " to explain suspicious circumstances" without

exceeding the   scope of an     investigative stop. United States v. Brignoni- Ponce, 422 U.S. 873,


881 -82, 95 S. Ct. 2574, 45 L. Ed. 2d 607 ( 1975).


        The,third factor, the length of the 'stop, is a closer call, but also suggests a valid stop. In

Place, the Supreme Court refused to establish a bright -
                                                       line rule for the permissible duration of an


investigative stop, but held that under the Facts presented a 90 minute detention " alone
preclude[ d] the conclusion that the seizure was reasonable in the absence of probable cause."


462 U.S. at 709. Our Supreme Court has determined that a 35 minute stop " approach[ ed]

excessiveness."    Williams, 102 Wn.2d         at   741 &   n.4. Nonetheless, we hold that this stop did not

last an excessive length of time for two reasons.


        First, as noted above, this stop began at 7: 42 p.m. and ended at some point before 8: 57

p.m. During this time, Hovinghoff and Royle had their suspicions further aroused several times

and investigated several new crimes based on Hartley' s and Barringer' s statements. This

permitted Hovinghoff and Royle to " continue" to detain Barringer and Hartley while they

 expand[ ed]"   their inquiry into other possible criminal wrongdoing. State v. Garland, 482 A.2d

139, 144 ( Me. 1984); State      v.   Fitzherbert, 361 A.2d 916, 919 -20 ( Me. 1976). Place and




to Even if we were to consider these techniques, Barringer freely and knowingly consented to
each search and therefore has waived her claims about the intrusiveness of Hovinghoff' s
investigation. Schultz, 170 Wn.2d at 754.

                                                            12
No. 43576 -4 -
             H



Williams considered the permissible duration of stops involving the investigation of a single

crime; they do not define the outer bounds of a stop where police must investigate multiple types

of criminal activity. An hour, approximately, does not seem like an unreasonable period of time

to investigate at least four possible crimes: the initial collision, Hartley' s driving with a

suspended license, Barringer' s false statements, and Barringer' s possession of


methamphetamine.




        Second, we assess the duration of a stop in light of the diligence of officers in performing

their investigation. Place, 462 U.S. at 709 -10. Here, there is no evidence the officers did


anything but diligently pursue their investigation. While Barringer claims that Royle did not

diligently investigate while waiting for Hovinghoff to arrive, the trial court found that he did so.

CP at 5 ( finding of fact 1. 4, wherein the trial court found that Royle investigated the collision by

asking if Hartley and Barringer needed medical attention and asked for Barringer' s license and

proof of   insurance.)   This finding is a verity on appeal as Barringer did not challenge it. The

investigative stop met constitutional standards.

B.      Probable Cause


        Barringer also contends that her arrest violated her right to freedom from pretextual


seizure. The argument consists of two parts: first, Barringer alleges the police lacked probable


cause to arrest her on possessory offenses 'because of Hartley' s unreliability; second, she claims

that because the police could not arrest her on possessory offenses, their arrest of her for making

false statements was an impermissible pretext. We hold that the police had probable cause for an


arrest based on Barringer' s false statements and that because the police had no subjective intent


to circumvent any constitutional protections, they did not act pretextually.


                                                    13
No. 43576 -4 -
             II



       Where an investigative stop becomes an arrest, the police must have probable cause to

believe the suspect has committed a crime. See Dunaway, 442 U.S. at 208; Williams, 102 Wn.2d

at 740; accord 3 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH


AMENDMENT §           5: 1,   at   4 - ( 4th
                                      5        ed.   2004). If the police lack probable cause, the arrest is


constitutionally invalid and any evidence seized is tainted and inadmissible. LAFAVE, supra, §

5. 1( a) at 4 -5. Police have probable cause to make a warrantless arrest where " the arresting

officer is aware of facts or circumstances, based on reasonably trustworthy information,

sufficient   to cause a       reasonable officer        to   believe   a crime   has been   committed."   State v. Gaddy,

152 Wn.2d 64, 70, 93 P.3d 872 ( 2004) ( emphasis                       omitted).



        RCW . A.76. 175 proscribes " knowingly mak[ ing] a false or misleading material
            9

statement    to   a public servant."       Hovinghoff had reasonably trustworthy information sufficient to

cause a reasonable officer to believe that Barringer' s conduct satisfied all of the elements of

RCW 9A.76. 175. Barringer deliberately lied to Hovinghoff and Royle when she initially told

them she had been driving, and later admitted to having done so to cover Hartley' s crime of

driving with a suspended license. Barringer' s statement was material to the investigation of

traffic infractions related to the collision ifi that it hid who had driven the vehicle into the ditch.


Both Royle and Hovinghoff are public servants who were acting in their official capacities when

Barringer lied to them. Hovinghoff had probable cause to arrest her and to do so without a


warrant given that she made the false statements in his presence. RCW 10. 31. 100; Atwater, 532


U.S. at 354.


        Barringer argues that, while Hovinghoff had probable cause to arrest her for providing a

false statement, he did not do so, and instead arrested her for drug possession, which he lacked


                                                                   14
No. 43576 - -
          4 II



probable cause to arrest her for. However, as long as the police have probable cause to believe

that the defendant has committed a crime, any subjective intent to arrest on a different crime on

the part of police is irrelevant and the arrest is constitutional. State v. Huff, 64 Wn. App. 641,

645 -46, 826 P. 2d 698 ( 1992) ([         a] n arrest supported by probable cause is not made unlawful by an

officer' s subjective reliance on, or verbal announcement of, an offense different from the one for


which probable cause exists. ");          City of Scuttle v. Cadigan, 55 Wn. App. 30, 36, 776 P.2d 727

 1989) ( " The absence of probable cause to believe that a person committed a particular crime for


which a person was arrested does not create an invalid arrest if, at the time of the arrest, the


police   had   sufficient   information to     support an arrest of   the   person on a   different   charge. ");   State


v.   Stebbins, 47 Wn.   App. 482,        485 -86, 735 P. 2d 1353 ( 1987) ( surveying cases and reasoning that


they command courts to affirm an arrest where. "probable cause exist[ s] to support an arrest on

any   charge. ").   Here, Hovinghoff knew he had probable cause to arrest Barringer for false


swearing based on her and Hartley' s admissions to him before he arrested her. The arrest was

constitutional.



         Barringer' s related pretext claim also lacks merit. Pretextual searches or seizures are


forbidden by article I, section 7 of the Washington Constitution because they allow police

officers to circumvent constitutional protections and search or seize where they would not

otherwise have the authority to do. Arreala, 176 Wn.2d at 294. Claims of pretext require that

the officer subjectively intend to make the search or seizure for constitutionally infirm reasons.

Arreola, 176 Wn.2d          at   295.   As noted when discussing Barringer' s challenge.to the trial court' s

findings of fact, Hovinghoff subjectively believed Hartley was credible, meaning that he

subjectively believed he had probable case to arrest Barringer for both false swearing and


                                                           15
No. 43576 -4 -II



possession of a controlled substance. We therefore cannot say that justification of the arrest

based on the false swearing was pretextual. Hovinghoff did not make the " end run" around

article I, section 7 necessary for a successful pretext claim.

                              III. THE SEARCH OF BARRINGER' S PURSE


        Barringer' s final contention is that She did not give " free and voluntary consent" to search

her purse, and that the search was therefore invalid. Br. of Appellant at 20. She contends that


Hovinghoff' s statement that he would apply for a warrant coerced her into waiving her right to

be free from search. We disagree.


        A person may waive his or her freedom from unreasonable or unlawful searches by

consent. Illinois v. Rodriguez, 497 U.S. 117, 183 -84, 110 S. P. 2793, 111 L. Ed. 2d 148 ( 1990);

Schultz, 170 Wn.2d at 754. Because a warrant requires a suspect to submit to a search, police


may not claim that the suspect consented by allowing a search authorized by a warrant if a court

later finds the warrant invalid. Bumper v. N. Carolina, 391 U.S. 543, 548, 88 S. Ct. 1788, 20 L.

Ed. 2d 797 ( 1968).   Extending this logic, bivision Three of our court has held that police also

may not rely on consent obtained by misrepresenting their authority to obtain a warrant. State v.

Apodaca, 67 Wn.    App.   736, 739 -40, 839 P.2d 352 ( 1992),    overruled on other grounds by State v.

Mierz, 127 Wn.2d 460, 901 P. 2d 286 ( 1995).

        Barringer' s consent claim must fait because Hovinghoff never misrepresented his


authority regarding the search. A police officer does not coerce a defendant to give consent by

telling the defendant that he or she will seek a warrant unless consent is given. State v. Smith,

115 Wn. 2d 775, 790, 801 P. 2d 975 ( 1990) ( distinguishing      an officer' s threat to seek a warrant




                                                  16
No. 43576 - -
          4 II



from an officer' s false representation that he or she possesses a warrant and holding that the

threat to seek a warrant does not coerce a defendant into providing consent).

       The trial court found that Hovinghoff told Barringer that he would seek a warrant if she


would not consent to a search of her purse. The trial court found that Hovinghoff was quite


explicit that the trial court might not grant him a warrant, but that he would attempt to procure


one. Barringer has not challenged these fldings and they are verities on appeal. Barringer

argues that, given the failure to corroborate Hartley' s statements with any of the searches,

including the one by the canine unit, Hovinghoff could not have obtained a warrant. That is

irrelevant. Hovinghoff had enough evidence to seek a warrant, and that is all that he promised to


do. We affirm the trial court' s conclusion that Barringer gave valid consent.


                                           CONCLUSION


       We affirm the trial court' s denial of Barringer' s motion to suppress the evidence and


affirm her conviction for the possession of methamphetamine.


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

Appellate Reports, but will be filed for public record pursuant to RCW 2. 06.040.

                                                      g




                                                   BJ r   EN z T ` .
We concur:



                          r   r


IJOHANSoN, A.C.J.

U
MAXA, J.




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