      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                 No. 69228-3-1
                      Respondent,
      v.                                         DIVISION ONE


ANTHONY JOSEPH CORBELLA,                         UNPUBLISHED OPINION


                      Appellant.                 FILED: November 12, 2013


          Leach, C.J. — Anthony Corbella appeals his conviction for possession of
                                                                                o
                                                                                —     —It—
heroin.     He challenges the trial court's denial of his motion to suppress §fl
                                                                                CD
                                                                                S     o2
evidence seized during his encounter with police, claiming that an initial illegal

search tainted evidence seized from his car in a subsequent consent searcS. 2=>
                                                                                V?
Because substantial evidence supports both the trial court's finding that Corbe$£

consented voluntarily to the search of his car and its conclusion that the initial

unlawful search did not taint the subsequent search of the car, we affirm.

                                    Background

          On May 11, 2011, at about 11:30 p.m., Bellevue Police Lieutenant Mark

Tarantino observed Anthony Corbella and a woman sitting inside a parked car at

the Newport Hills Park and Ride. They appeared "surprised" to see Tarantino,

who parked his patrol car and approached the other car on foot.          Tarantino

shined his flashlight into the car and saw a lighter in Corbella's hand, as well as
No. 69228-3-1 / 2



what appeared to be a piece offoil with burn marks on it near Corbella's foot, on
the driver's side floorboard.   Suspecting that the foil was evidence of drug

activity, Tarantino asked Corbella to hand it to him. Corbella complied, and
Tarantino saw that the foil contained burn marks and residue. He handed the foil

back to Corbella and radioed for backup assistance.      Corbella complied with

Tarantino's request to step out of the car. Tarantino told Corbella that he

"suspected that there was drug activity going on" and asked him if he used drugs.
Corbella said he uses heroin. When Tarantino asked Corbella if there was any

heroin in the car, Corbella said that the passenger door compartment contained

heroin. When backup officers arrived, Tarantino relayed his observations to

Officer Lange, who then spoke to Corbella.

       When Lange asked him what he had been doing, Corbella responded that

he had borrowed the car to give his passenger a ride and stopped to consume

heroin. Corbella told Lange that the drugs were in the passenger door side

compartment.

        Lange ran a computer check and discovered that Corbella had an
outstanding warrant for driving with license suspended in the second degree.
 Lange told Corbella that he was under arrest, handcuffed him, and read him his
 Miranda1 rights. Corbella said that he understood his rights and gave permission
 to search his car by signing a consent to search form, which Lange also read to


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

                                        -2-
No. 69228-3-1 / 3




him. The search revealed heroin in the side compartment of the front passenger

door. Lange also found the piece of foil with burn marks and heroin residue on

the floor of the car.     The State charged Corbella with possession of heroin.

Corbella moved to suppress all evidence seized during his encounter with the

police.

          Following CrR 3.5 and 3.6 hearings, the trial court ruled that Tarantino's

request for the piece of foil was an unlawful search.           The court excluded

evidence of the foil, along with all of Tarantino's observations of the foil that he

made after obtaining it.       The trial court admitted Tarantino's initial visual

observations from outside the car and the other evidence that Lange obtained.

After a stipulated bench trial, the trial court found Corbella guilty as charged.

          Corbella appeals.

                                 Standard of Review


          We review the denial of a motion to suppress evidence by determining if

substantial evidence supports the trial court's findings of fact and ifthose findings

support the trial court's conclusions of law.2 Substantial evidence exists if it is

sufficient to persuade a fair-minded, rational person of the truth of the matter

asserted.3 Unchallenged findings of fact are verities on appeal.4 We review
conclusions of law de novo.5 The trial court's determination that the primary



          2 State v. Ross. 106 Wn. App. 876, 880, 26 P.3d 298 (2001).
          3 State v. Lew. 156 Wn.2d 709, 733, 132 P.3d 1076 (2006).
          4 State v. Hill. 123 Wn.2d 641, 644, 870 P.2d 313 (1994).
          5 State v. Acrev. 148 Wn.2d 738, 745, 64 P.3d 594 (2003).

                                          -3-
No. 69228-3-1/4




unlawful search did not taint Lange's subsequent discovery of the heroin is a

mixed question of law and fact, which we review de novo.6
                                    Analysis

      Corbella challenges the admission of all evidence obtained after

Tarantino's request that he hand over the foil, arguing that this unlawful search

tainted Lange's consent and thus all subsequently obtained evidence.

Warrantless searches are per se unreasonable, and the State bears the burden

to show one of the "'jealously and carefully drawn"' exceptions to the warrant

requirement.7 Consent is a valid exception, provided (1) it is voluntary, (2) the

person consenting has the authority to do so, and (3) the search does not exceed

the scope of consent.8 The prosecution must show by clear and convincing

evidence that a defendant's consent was free and voluntary.9           Clear and

convincing evidence exists when the evidence shows that the ultimate fact in

issue is highly probable.10 A court determines if consent is free and voluntary as

a question of fact based upon the totality of the circumstances, including (1) if

      6 Humphrey Indus. Ltd. v. Clav St. Assocs., 170 Wn.2d 495, 501-02, 242
P.3d 846 (2010).
       7 State v. Morse. 156 Wn.2d 1, 7, 123 P.3d 832 (2005) (internal quotation
marks omitted) (quoting State v. Reichenbach. 153 Wn.2d 126, 131, 101 P.3d 80
(2004)).
       8 State v. Thompson. 151 Wn.2d 793, 803, 92 P.3d 228 (2004). Though
Corbella was driving a borrowed car, the car's owner later confirmed that he gave
Corbella his permission to use it, and thus Corbella had authority to consent to a
search. Corbella does not argue that the search exceeded the scope of his
consent.
       9 State v.Smith. 115 Wn.2d 775, 789, 801 P.2d 975 (1990) (citing State v.
Shoemaker. 85 Wn.2d 207, 210, 533 P.2d 123 (1975); State v. Nelson. 47 Wn.
App. 157, 163, 734 P.2d 516 (1987)).
       10 In re Dependency of K.S.C.. 137 Wn.2d 918, 925, 976 P.2d 113 (1999).


                                       -4-
No. 69228-3-1 / 5




police gave Miranda warnings before obtaining consent, (2) the consenting

person's degree of education and intelligence, and (3) if the police advised the

consenting person of the right to refuse consent.11             No one factor is

determinative.12

       If an unlawful search precedes a later consent search, the court must

determine if the earlier illegality tainted the process of obtaining the derivative

evidence.     If so, the Fourth Amendment of the United States Constitution and

article I, section 7 of the Washington Constitution require excluding the evidence

seized in the later search.13     This is a factual determination that requires

examining the police officers' actions and their motivations for their actions. As

part of this inquiry, the court considers if discoveries made in the initial unlawful

search motivated the officers conducting the subsequent search.14 This court

considers (1) the temporal proximity of the illegality and the subsequent consent,

(2) the presence of any significant intervening circumstances, (3) the purpose

and flagrancy of the officers' misconduct, and (4) the giving of Miranda

warnings.15



       11 Smith. 115 Wn.2d at 789 (citing Shoemaker. 85 Wn.2d at 212).
       12 Smith. 115Wn.2dat789.
       13 See Wong Sun v. United States. 371 U.S. 471,484-85, 83 S. Ct. 407, 9
L. Ed. 2d 441 (1963); State v. Jensen. 44 Wn. App. 485, 489 n.1, 723 P.2d 443
(1986).
       14 Murray v. United States. 487 U.S. 533, 542, 108 S. Ct. 2529, 101 L Ed.
2d 472 (1988); State v. Gaines. 154 Wn.2d 711, 718-21, 116 P.3d 993 (2005);
State v. Miles. 159 Wn. App. 282, 291-94, 244 P.3d 1030, review denied. 171
Wn.2d 1022(2011).
       15 State v. Gonzales. 46 Wn. App. 388, 398. 731 P.2d 1101 (1986).

                                         -5-
No. 69228-3-1/6




       As to the first two considerations, Corbella's consent and Lange's search

were close in time to Tarantino's initial search, and there were no significant

intervening circumstances.     But Corbella received proper Miranda warnings at

the time of his arrest, and he consented verbally and in writing to a search of his

car after police told him that he did not have to consent. Nothing in the record

indicates that the police used threatening, coercive, or otherwise "flagrant"

behavior.16 Considering the totality of the circumstances, clear and convincing

evidence supports the conclusion that consent to the search was freely and

voluntarily given.

       Though Tarantino spoke to Lange about his earlier observations, no

evidence in the record shows that Tarantino's initial unlawful search motivated

Lange's subsequent actions.17 Corbella does not dispute that when Lange asked

him what he had been doing, Corbella volunteered the information that he

stopped in the parking lot to use drugs. He then voluntarily told Lange where the

drugs were. Tarantino's lawful observations and Corbella's answers to Lange's

questions motivated Lange's search, which followed a valid arrest and validly

obtained consent. The earlier illegality of Tarantino's request and handling of the

foil did not taint either Corbella's consent or Lange's later search.




       16 Contra State v. O'Neill. 148 Wn.2d 564, 591, 62 P.3d 489 (2003)
(holding that officers' repeated requests for consent after defendant's initial
refusal constituted coercion and vitiated consent).
       17 Lange did not recall if Tarantino told him that he asked for and took the
foil from Corbella.


                                         -6-
No. 69228-3-1 / 7




                                   Conclusion


        Because substantial evidence supports both the trial court's finding that

Corbella consented voluntarily to the search of his car and its conclusion that

Tarantino's unlawful search did not taint Lange's subsequent search of the car,

we affirm.




WE CONCUR:




                                       -7-
