No. 23887-3-III.The Court of Appeals of Washington, Division Three.
May 11, 2006.
Appeal from a judgment of the Superior Court for Spokane County, No. 04-1-02703-0, Salvatore F. Cozza, J., entered February 25, 2005.
Affirmed by unpublished opinion per Kato, J., concurred in by Schultheis, A.C.J., and Brown, J.
Counsel for Appellant(s), Daniel Herbert Bigelow, Attorney at Law, PO Box 608, Cathlamet, WA 98612-0608.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
Andrew J. III Metts, Spokane County Pros Offc, 1100 W Mallon Ave, Spokane, WA 99260-0270.
KATO, J.
Jerome E. Grimes appeals his conviction for possession of methamphetamine. He contends the court erred by admitting one of his statements to the arresting officer. We affirm.
On July 14, 2004, Sergeant Edgar C. Thompson, Jr., stopped Mr. Grimes for failing to signal a turn. The sergeant approached Mr. Grimes’s vehicle and asked for his driver’s license, registration, and proof of insurance. He told Sergeant Thompson he did not have a license or any car documentation.
Sergeant Thompson asked him to get out of the car. Mr. Grimes told the sergeant his name was Steve Edwin Rose. Sergeant Thompson checked the name provided by Mr. Grimes with the Department of Licensing, but there was no record of such an individual. Sergeant Thompson then called for backup. Deputy Sheriff Shawn Audie responded to the scene.
When Deputy Audie arrived, he asked Mr. Grimes for his name. He again said his name was Steve Rose. Deputy Audie arrested him for not having a valid driver’s license. During the search incident to arrest, the deputy removed a wallet from Mr. Grimes’s pocket. The wallet contained his identification. The deputy also found a container containing needles and a substance he thought was methamphetamine. Deputy Audie put the container in front of Mr. Grimes and asked him `[i]s that methamphetamine?’ Report of Proceedings (RP) (Nov. 10, 2004) at 31. Mr. Grimes said `[y]eah.’ Id. Deputy Audie read Mr. Grimes his Miranda[1]
rights and then asked if the methamphetamine belonged to him. He told the deputy `[y]eah.’ Id. at 32.
Mr. Grimes was charged with possession of methamphetamine. After a CrR 3.5 hearing, the court admitted his post-Miranda statement made to Deputy Audie. Mr. Grimes was convicted as charged. He appeals. Mr. Grimes contends the court erred when it admitted his post-Miranda statement to Deputy Audie. He argues the lack of Miranda warnings before his first answer tainted his later statement and rendered it inadmissible. A confession obtained subsequent to an initial, unconstitutionally obtained confession is inadmissible as `fruit of the poisonous tree.’ See Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S. Ct. 407, 9 L. Ed. 2d 441
(1963). The post-Miranda confession is necessarily tainted by the illegality of the pre-Miranda confession. State v. Lavaris, 99 Wn.2d 851, 857-58, 664 P.2d 1234 (1983). The post-Miranda confession will only be admissible where an `insulating factor’ separates the subsequent, post-Miranda confession from the taint of the pre-Miranda confession. Id. at 860.
In Oregon v. Elstad, 470 U.S. 298, 309-14, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985), the United States Supreme Court interpreted and modified this rule, known as the `cat out of the bag’ doctrine. United States v. Bayer, 331 U.S. 532, 540, 67 S. Ct. 1394, 91 L. Ed. 1654
(1947). Specifically, the court held that a voluntary post-Miranda confession will be admissible if the pre-Miranda confession was voluntary and free from coercion. Elstad, 470 U.S. at 314. The volition of the defendant in providing the pre-Miranda confession is an insulating factor that separates and removes the post-Miranda confession from the taint of the first confession. See State v. Wethered, 110 Wn.2d 466, 473-74, 755 P.2d 797 (1988). The defendant’s volition in providing the pre-Miranda confession absent deliberately coercive or improper tactics in obtaining the unwarned confession renders the subsequent statement an “act of free will.” Elstad, 470 U.S. at 311 (quoting Wong Sun, 371 U.S. at 486); State v. Allenby, 68 Wn. App. 657, 660, 847 P.2d 1
(1992).
A confession is coerced `if based on the totality of the circumstances the defendant’s will was overborne.’ State v. Burkins, 94 Wn. App. 677, 694, 973 P.2d 15 (citing State v. Broadaway, 133 Wn.2d 118, 132, 942 P.2d 363 (1997)), review denied, 138 Wn.2d 1014 (1999). Some of the pertinent circumstances include whether the confession was `extracted by any sort of threats, violence, or direct or implied promises, however slight.’ State v. Riley, 17 Wn. App. 732, 735, 565 P.2d 105 (1977), review denied, 89 Wn.2d 1014 (1978). The court may also consider the condition of the defendant, the defendant’s mental abilities, and the conduct of the police. Broadaway, 133 Wn.2d at 132.
Here, there is no indication Deputy Audie’s question to Mr. Grimes as to whether the substance in the container was methamphetamine constituted a threat or was intended to elicit an incriminating response. Mr. Grimes was not coerced into making a pre-Miranda confession and the post-Miranda confession therefore constituted a voluntary and knowing waiver of his Miranda rights. His confessions were not tainted. The court properly admitted Mr. Grimes’s post-Miranda statement.
Affirmed.
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.
SCHULTHEIS, A.C.J. and BROWN, J., concur.
(1966).