STATE v. HOLMES (2006)

PART PUBLISHED OPINION

 ¶ 1 Faye Annette Holmes appeals her convictions of possession of methamphetamine and unlawful possession of drug paraphernalia.   She argues that (1) a police officer impermissibly testified that she did not answer when he asked her about methamphetamine found in her vehicle;  (2) the police officer did not have authority to arrest her;  (3) the trial court should have suppressed a confession she gave before the officer administered her Miranda¹ warnings;  (4) her counsel was ineffective in not moving to suppress evidence the police found in a search incident to her arrest;  (5) the trial court failed to enter written findings and conclusions after the CrR 3.5 hearing;   and (6) cumulative error denied her a fair trial.   We find no reversible error and, therefore, affirm.

FACTS

¶ 2 Mossyrock Police Officer Stamper stopped Holmes because her truck had a defective tail light and expired license tabs.   As Officer Stamper contacted Holmes, he saw a mismarked and expired three-day trip permit in the truck's rear window.   Officer Stamper arrested Holmes for driving with an expired and mismarked trip permit in violation of RCW 46.16.160.

¶ 3 Officer Stamper testified that, as he handcuffed Holmes, he “asked if she had anything on her that [he] needed to know about:  any guns, weapons, knives, needles, anything that might stick [him] or injure [him], poke [him].”   Report of Proceedings (RP) (April 28, 2005) at 21.   Holmes responded that she had marijuana in her purse in the truck.   At that point, Officer Stamper had not yet read Holmes her Miranda rights because “he hadn't started questioning her on anything yet.”   RP (April 28, 2005) at 21.   Officer Stamper then read Holmes her Miranda rights, which she waived.

¶ 4 After placing Holmes in his patrol car, Officer Stamper searched the truck.   In Holmes's purse, he found marijuana and a smoking device.   He also found a sunglasses case in Holmes's purse that contained a spoon, a hypodermic needle, and a plastic bindle containing methamphetamine.

¶ 5 After Officer Stamper searched the truck, Holmes asked him to retrieve her medication from the truck.   When Officer Stamper returned with two pill bottles, Holmes asked him to get an empty pill bottle from her truck that previously contained a prescription she had to refill.   Officer Stamper did so and then took Holmes to jail.   While booking Holmes, another officer found methamphetamine in the empty pill bottle.

 ¶ 6 The State charged Holmes with possession of methamphetamine, unlawful use of drug paraphernalia, and bail jumping.   The State dropped the bail jumping charge, recharged it under a separate cause number, and Holmes pleaded guilty.

¶ 7 Holmes moved to suppress the statement that she had marijuana in her purse, arguing that she made the statement before the officer gave her Miranda warnings.   After a CrR 3.5 hearing, the court denied Holmes's motion to suppress the statement, ruling that she did not make the statement in response to interrogation and that Officer Stamper did not expect her to tell him she had marijuana when he asked if she had anything that might injure him.

¶ 8 At trial, Officer Stamper testified that when he asked Holmes why she did not tell him that the bottle had methamphetamine in it, “she never replied.   She just looked at me.”   RP (April 28, 2005) at 49.

¶ 9 Holmes testified that the sunglasses case and its contents were not hers.   She said that someone had worked on her vehicle, that he probably dropped the case in her car, and that she then must have put it in her purse when she collected the purse's contents, which she had removed while retrieving her identification for Officer Stamper.   She testified that she had never seen the sunglasses case before.   She also testified that she did not know that the empty pill bottle contained methamphetamine.

¶ 10 The principal issues are whether Officer Stamper had authority to arrest Holmes for her traffic violation;  whether his testimony that she did not answer his methamphetamine question denied her a fair trial;  and whether the trial court should have suppressed her statement about the marijuana.

ANALYSIS

I. Unlawful Arrest

¶ 11 Holmes argues that the court should have suppressed her marijuana statement and the evidence police  obtained from the truck after arresting her because the arrest was illegal.   Specifically, Holmes claims that she did not drive with an expired trip permit in Officer Stamper's presence.

 ¶ 12 But Holmes never moved to suppress the evidence obtained during Officer Stamper's search incident to arrest.   We do not address an issue raised for the first time on appeal unless it involves a manifest error affecting a constitutional right.  RAP 2.5(a)(3);  State v. Easterling, 157 Wash.2d 167, 173 n. 2, 137 P.3d 825 (2006).   An error is “manifest” if it had “ ‘practical and identifiable consequences in the trial of the case.’ ”   State v. Mills, 154 Wash.2d 1, 6, 109 P.3d 415 (2005) (quoting State v. Roberts, 142 Wash.2d 471, 500, 14 P.3d 713 (2000)).   An arrest made without authority of law is invalid under article I, section 7 of the Washington Constitution.   Wash. Const. art.   I, § 7;  State v. Barker, 143 Wash.2d 915, 922, 25 P.3d 423 (2001).

 ¶ 13 Where a party asserts a Fourth Amendment argument for the first time on appeal, we will review the newly raised argument only if the record contains the facts necessary for its adjudication. See State v. Riley, 121 Wash.2d 22, 31, 846 P.2d 1365 (1993).   Here, the record contains the facts necessary for us to address the merits of Holmes's challenge.

¶ 14 Holmes cites State v. Green, 150 Wash.2d 740, 82 P.3d 239 (2004), for the proposition that driving with an expired trip permit is not a continuing offense and that the actual violation occurred on the date the trip permit expired.   In Green, the defendant moved to suppress drug evidence obtained during a search incident to her arrest for failure to transfer title to a vehicle.  Green, 150 Wash.2d at 742, 82 P.3d 239.   The court held that a defendant committed the misdemeanor of failing to transfer title only when 45 days after delivery the purchaser had still not applied for a title transfer.   Green, 150 Wash.2d at 743-44, 82 P.3d 239 (citing RCW 46.12.101(6)).   Thus, failure to transfer title was not a continuing offense and the  crime was complete when 45 days had passed since the date of delivery of the vehicle.  Green, 150 Wash.2d at 743, 82 P.3d 239.   Accordingly, because the 45-day period had not elapsed before the arrest, and because the statute did not expressly provide that the offense was a continuing offense, the defendant did not commit a misdemeanor in the officers' presence and the trial court should have suppressed the drug evidence.  Green, 150 Wash.2d at 744, 82 P.3d 239.

 ¶ 15 Green does not help Holmes.   Officer Stamper arrested Holmes for driving with an expired and mismarked trip permit in violation of RCW 46.16.160.   Under RCW 46.16.160(1), a vehicle owner with an expired out-of-state vehicle license registration may operate a vehicle in Washington under authority of a state-issued trip permit.²  RCW 46.16.160(2) provides:

Every [trip] permit shall identify, as the department may require, the vehicle for which it is issued and shall be completed in its entirety and signed by the operator before operation of the vehicle on the public highways of this state.   Correction of data on the permit such as dates, license number, or vehicle identification number invalidates the permit.

A violation of RCW 46.16.160 is a gross misdemeanor.  RCW 46.16.160(7).   The Green violation did not require operating a vehicle;  the violation here did.   Holmes committed the gross misdemeanor of operating a vehicle with an expired and corrected trip permit.   See RCW 46.16.160(1), (2), (7).   Because Holmes drove her vehicle while it had an expired and mismarked trip permit in Officer Stamper's presence, Officer Stamper lawfully arrested her. RCW 10.31.100.

¶ 16 Affirmed.

¶ 17 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder  shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

II. Holmes's Right to Remain Silent

¶ 17 Holmes argues that Officer Stamper commented on her silence when he testified that she remained silent after he asked why she did not tell him the pill bottle contained methamphetamine.

¶ 18 The Fifth Amendment to the federal constitution and article I, section 9 of our state constitution prohibit the State from compelling a criminal defendant to testify or present evidence against herself.   U.S. Const. amend.   V;  Wash. Const.. art.   I, § 9. As part of these prohibitions, the State may not attempt to show that the defendant's silence in response to police questions suggests her guilt.  State v. Easter, 130 Wash.2d 228, 236, 922 P.2d 1285 (1996).  “A comment on an accused's silence occurs when ․ the State [uses the accused's silence] to suggest to the jury that the [refusal to talk is] an admission of guilt.”  State v. Lewis, 130 Wash.2d 700, 707, 927 P.2d 235 (1996).   But a reference to an accused's silence that does not rise to the level of a “comment” on her silence is harmless error absent a showing of prejudice.  Lewis, 130 Wash.2d at 706-07, 927 P.2d 235 (citing Tortolito v. State, 901 P.2d 387, 390 (Wyo.1995)).

¶ 19 In questioning Officer Stamper about the pill bottle containing methamphetamine, the prosecutor asked:

Q. Did you ask Ms. Holmes about that additional methamphetamine [in the pill bottle]?

A. Yes, I did.   I asked her the question of, [w]hy didn't you, you know, tell me this was in this pill bottle?   And she never replied.   She just looked at me.

RP (April 28, 2005) at 49.

¶ 20 In State v. Perrett, 86 Wash.App. 312, 322, 936 P.2d 426 (1997), we held that a police officer improperly commented on the defendant's silence when he said, “After Deputy Barrett read [the defendant] his rights and [the defendant] said he had nothing to say, he did ask that we ․” The court held, however, that the single error did not require reversal.  Perrett, 86 Wash.App. at 323, 936 P.2d 426.   Officer Stamper's single reference to Holmes's silence is analogous to the officer's statement in Perrett.

¶ 21 Although Officer Stamper's testimony was improper, Holmes does not argue that this single reference prejudiced her.3  See Lewis, 130 Wash.2d at 706-07, 927 P.2d 235.   The prosecutor did not ask any further questions about that conversation.   And the prosecutor did not attempt to use Holmes's silence as substantive evidence of guilt or mention Holmes's silence during closing argument.   See Lewis, 130 Wash.2d at 706-07, 927 P.2d 235 (no prejudicial comment on silence where prosecutor made no statements that defendant's silence should imply guilt).   Finally, Officer Stamper had already discovered sufficient evidence to warrant Holmes's conviction when he found methamphetamine in the sunglasses case in her purse.   Holmes fails to show that Officer Stamper's comment prejudiced her.

III. Holmes's Confession Regarding the Marijuana in Her Truck

¶ 22 Holmes argues that the trial court should have suppressed her admission to Officer Stamper, as he performed a protective frisk, that she had marijuana in the truck.   At the CrR 3.5 motion, Officer Stamper testified that as he arrested Holmes, he asked whether she had “anything on her that [he] needed to know about:  any guns, weapons, knives, needles, anything that might stick [him] or injure [him], poke [him].”   RP (April 28, 2005) at 21.   Holmes told him that she had marijuana in her purse.   Holmes claims that Officer Stamper obtained this admission in violation of Miranda.4

¶ 23 A police officer must advise a suspect of her Miranda rights before he or she may conduct a custodial interrogation.  State v. Richmond, 65 Wash.App. 541, 544, 828 P.2d 1180 (1992).   An interrogation is “ ‘any words or actions on the part of the police ․ that the police should know are reasonably likely to elicit an incriminating response from the suspect.’ ”   Richmond, 65 Wash.App. at 544, 828 P.2d 1180 (quoting Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980)).   But an officer may, before giving a defendant her Miranda warnings, ask questions that are solely for officer or public safety purposes.5  State v. Lane, 77 Wash.2d 860, 862-63, 467 P.2d 304 (1970).

¶ 24 Holmes relies on State v. Spotted Elk, 109 Wash.App. 253, 34 P.3d 906 (2001), to support her argument that Officer Stamper's question violated Miranda.   But Spotted Elk is distinguishable.   In that case, a police officer, after arresting the defendant, asked the defendant, “Do you have anything on your person I need to be concerned about?”  Spotted Elk, 109 Wash.App. at 256, 34 P.3d 906.   The defendant removed heroin from her breast pocket and told the officer that the drugs belonged to a friend.  Spotted Elk, 109 Wash.App. at 256, 34 P.3d 906.   The State charged the defendant with possession of heroin.  Spotted Elk, 109 Wash.App. at 256, 34 P.3d 906.   The court held that the officer's question did not relate solely to his own safety because he failed to ask whether the defendant had any hazardous objects. 6  Spotted Elk, 109 Wash.App. at 260, 34 P.3d 906.

¶ 25 Here, Officer Stamper asked Holmes whether she had “any guns, weapons, knives, needles, anything that might stick [him] or injure [him], poke [him].”   RP (April 28, 2005) at 21.   Although at trial, Holmes testified that Officer Stamper merely asked her whether “he was going to find anything in [her] vehicle that [she] should not have,” she did not testify at the CrR 3.5 hearing.   RP (April 28, 2005) at 59-60.   The trial court apparently believed Officer Stamper's testimony, a credibility determination we will not disturb.   See State v. Camarillo, 115 Wash.2d 60, 71, 794 P.2d 850 (1990) (credibility determinations are for the trier of fact and are not subject to review).   Since Officer Stamper's question related solely to officer safety, the question did not violate Miranda.

¶ 26 Moreover, an interrogative question is one that officers should know is reasonably likely to elicit an incriminating response.  Richmond, 65 Wash.App. at 544, 828 P.2d 1180 (quoting Innis, 446 U.S. at 301, 100 S.Ct. 1682).   Officer Stamper had no reason to believe that his question about whether Holmes had any dangerous instruments would elicit the response that she had marijuana in her truck.   Officer Stamper's question did not violate Miranda and the trial court correctly refused to suppress the evidence.

IV. Ineffective Assistance of Counsel

¶ 27 Holmes maintains that her counsel should have moved to suppress evidence under CrR 3.6.

¶ 28 Both the Sixth Amendment to the United States Constitution and article I, section 22 (amendment 10) of the Washington State Constitution guarantee the right to effective assistance of counsel in criminal proceedings.   Strickland v. Washington, 466 U.S. 668, 684-86, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);  In re Pers. Restraint of Davis, 152 Wash.2d 647, 672, 101 P.3d 1 (2004).   Counsel is ineffective when his representation falls below an objective standard of reasonableness and the defendant thereby suffers prejudice.  Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052;  State v. Robinson, 138 Wash.2d 753, 769-70, 982 P.2d 590 (1999).   A defendant establishes prejudice by showing “a reasonable probability that, but for counsel's errors, the result of the trial would have been different.”  State v. Hendrickson, 129 Wash.2d 61, 78, 917 P.2d 563 (1996) (citing State v. Thomas, 109 Wash.2d 222, 226, 743 P.2d 816 (1987)).   A reasonable probability is a probability sufficient to undermine confidence in the outcome.   Strickland, 466 U.S. at 694, 104 S.Ct. 2052.   To prevail on an ineffective assistance claim, a defendant must prove both prongs of the Strickland test.  Strickland, 466 U.S. at 697, 104 S.Ct. 2052.

¶ 29 Holmes cannot show that counsel's representation prejudiced her.   As discussed above, Officer Stamper arrested Holmes because she committed a gross misdemeanor in his presence.   And a custodial arrest justifies a warrantless search incident to arrest.  State v. O'Neill, 148 Wash.2d 564, 585, 62 P.3d 489 (2003).   Accordingly, Holmes cannot show that the outcome of her trial would have been different if her counsel had moved to suppress under CrR 3.6 because the trial court would have denied that motion.   Because she fails to establish prejudice, Holmes's ineffective assistance claim fails.

V. Trial Court's Failure to Enter Written Findings and Conclusions

¶ 30 Holmes argues that the trial court erred in failing to enter written findings of fact and conclusions of law following the CrR 3.5 hearing.   She maintains that the court's oral ruling does not satisfy its obligation and that, without the written findings, the record is insufficient for appellate review.

¶ 31 CrR 3.5 requires a trial court, after the suppression hearing, to “set forth in writing:  (1) the undisputed facts;  (2) the disputed facts;  (3) conclusions as to the disputed facts;  and (4) conclusion as to whether the statement is admissible and the reasons therefor.”  CrR 3.5(c).  The court's failure to comply with CrR 3.5(c) is error, but the error is harmless if the court's oral findings are sufficient for appellate review of the issue.   State v. Miller, 92 Wash.App. 693, 703, 964 P.2d 1196 (1998) (citing State v. Thompson, 73 Wash.App. 122, 130, 867 P.2d 691 (1994)).

¶ 32 As discussed above, an officer may, before giving a defendant her Miranda warnings, ask questions to ensure officer or public safety.   Lane, 77 Wash.2d at 862-63, 467 P.2d 304.   And under Miranda, an interrogative question is one that officer should know is reasonably likely to elicit an incriminating response.  Richmond, 65 Wash.App. at 544, 828 P.2d 1180 (quoting Innis, 446 U.S. at 301, 100 S.Ct. 1682).

¶ 33 The trial court's findings are sufficient to permit appellate review.   In its oral ruling, the court stated that Officer Stamper's question regarding whether Holmes had “any guns, knives, needles or anything that can stick [him]” was “not designed to be any kind of an interrogation” and “was ․ a question that had to do with officer safety.”   RP (April 28, 2005) at 29-30.   The court stated that Holmes's response that she had marijuana in her purse “was probably unexpected, especially considering she didn't have her purse with her.”   RP (April 28, 2005) at 30.   The court's failure to enter written findings of fact and conclusions of law after the CrR 3.5 hearing was harmless error.

VI. Cumulative Error

¶ 34 Holmes argues that we should reverse her convictions due to “the cumulative effect of the trial court's errors, the action of the prosecution by asking Officer Stamper about Ms. Holmes' reaction when he confronted her about the methamphetamine found at the jail, ․ [and] the instance of ineffective assistance.”   Br. of Appellant at 34.   She argues that these errors “materially affected the outcome of the trial.”   Br. of Appellant at 34.

¶ 35 We will reverse a defendant's conviction if the cumulative errors deny the defendant a fair trial.  State v. Greiff, 141 Wash.2d 910, 929, 10 P.3d 390 (2000) (citing State v. Coe, 101 Wash.2d 772, 789, 684 P.2d 668 (1984)).   Here, the only errors were Officer Stamper's reference to Holmes's silence when he asked about methamphetamine in the pill bottle and the trial court's failure to enter written findings and conclusions after the CrR 3.5 hearing.   Given that Officer Stamper discovered methamphetamine and drug paraphernalia during a search incident to her lawful arrest for driving with an invalid trip permit, these errors did not deprive Holmes of a fair trial.   See Greiff, 141 Wash.2d at 929, 10 P.3d 390 (cumulative effect of two insignificant errors did not deprive defendant of a fair trial).

¶ 36 Affirmed.

FOOTNOTES

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

2.   Holmes's truck had expired Missouri license plates.

FN3.  Holmes argues that this alleged error, when considered in light of the other alleged errors at trial, had the cumulative effect of denying her constitutional right to a fair trial.   We address Holmes's cumulative error argument below..  FN3.  Holmes argues that this alleged error, when considered in light of the other alleged errors at trial, had the cumulative effect of denying her constitutional right to a fair trial.   We address Holmes's cumulative error argument below.

FN4.  The State did not charge Holmes with possession of marijuana..  FN4.  The State did not charge Holmes with possession of marijuana.

FN5.  In State v. Spotted Elk, 109 Wash.App. 253, 260, 34 P.3d 906 (2001), Division Three articulated a two-part test to determine whether an officer's question of a defendant before Miranda warnings is permissible.   The court stated that police may ask a question if (1) the question is solely for the purpose of officer or public safety, and (2) the circumstances are sufficiently urgent to warrant an immediate question.   Spotted Elk, 109 Wash.App. at 260, 34 P.3d 906 (citing Lane, 77 Wash.2d at 862-63, 467 P.2d 304).   Division Three then said that if “both conditions are met, the question does not constitute an interrogation in violation of Miranda.”  Spotted Elk, 109 Wash.App. at 260, 34 P.3d 906 (citing Richmond, 65 Wash.App. at 544-46, 828 P.2d 1180).But Lane does not support Division Three's test.   See Lane, 77 Wash.2d at 862-63, 467 P.2d 304.   That case requires only that the officer's question relate solely to an issue of officer or public safety.   Lane, 77 Wash.2d at 862-63, 467 P.2d 304.   We decline to follow the test set forth in Spotted Elk..  FN5.  In State v. Spotted Elk, 109 Wash.App. 253, 260, 34 P.3d 906 (2001), Division Three articulated a two-part test to determine whether an officer's question of a defendant before Miranda warnings is permissible.   The court stated that police may ask a question if (1) the question is solely for the purpose of officer or public safety, and (2) the circumstances are sufficiently urgent to warrant an immediate question.   Spotted Elk, 109 Wash.App. at 260, 34 P.3d 906 (citing Lane, 77 Wash.2d at 862-63, 467 P.2d 304).   Division Three then said that if “both conditions are met, the question does not constitute an interrogation in violation of Miranda.”  Spotted Elk, 109 Wash.App. at 260, 34 P.3d 906 (citing Richmond, 65 Wash.App. at 544-46, 828 P.2d 1180).But Lane does not support Division Three's test.   See Lane, 77 Wash.2d at 862-63, 467 P.2d 304.   That case requires only that the officer's question relate solely to an issue of officer or public safety.   Lane, 77 Wash.2d at 862-63, 467 P.2d 304.   We decline to follow the test set forth in Spotted Elk.

ARMSTRONG, J.