524763MAJ
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     DO NOT CITE.  SEE RAP 10.4(h).

                          Court of Appeals Division I
                               State of Washington

                            Opinion Information Sheet

Docket Number:       52476-3-I
Title of Case:       STATE, RES. VS   KARL J. FROST, APP.
File Date:           11/15/2004


                                SOURCE OF APPEAL
                                ----------------
Appeal from Superior Court of Whatcom County
Docket No:      02-1-01401-4
Judgment or order under review
Date filed:     06/05/2003
Judge signing:  Hon. Michael F Moynihan


                                     JUDGES
                                     ------
Authored by Marlin J. Appelwick
Concurring: H Joseph Coleman
            Mary Kay Becker


                                COUNSEL OF RECORD
                                -----------------
Counsel for Appellant(s)
            Karl Joseph Jr Frost (Appearing Pro Se)
            410 E. Denny Way
            #259
            Seattle, WA  98122

            Andrew Louis Subin
            Attorney at Law
            115 W Magnolia St Ste 206
            Bellingham, WA  98225-4300

Counsel for Respondent(s)
            Rosemary Hawkins Kaholokula
            Whatcom Cty Pros Atty Office
            311 Grand Ave Ste 201
            Bellingham, WA  98225-4038

            Melinda Beth Miller
            Attorney at Law
            PO Box 5842
            Bellingham, WA  98227

            Kimberly Anne Thulin
            Whatcom Cty Pros Atty's Office
            311 Grand Ave Ste 201
            Bellingham, WA  98225-4038


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                             ) ) NO. 52476-
3-I
               Respondent,                       ) )
DIVISION ONE
          v.                                     ) ) UNPUBLISHED OPINION
KARL JOSEPH FROST,                               )
                                                 ) Appellant. )
FILED: November 15, 2004

APPELWICK, J. - Karl Frost appeals his conviction for possession of
marijuana with intent to deliver, in violation of RCW 69.50.401(a)(1)(iii).
He argues that the trial court should have suppressed the evidence of
marijuana possession.  Frost claims that even if he did consent to the
search, his consent was the direct result of an illegal detention.  He also
claims that his consent was not freely and voluntarily given.  We affirm.
FACTS

     On October 5, 2002, National Park Service Ranger Brett Timm (Timm) was
patrolling Ross Lake, in the North Cascade National Park, as a part of a
missing person investigation.  At about 9:00 a.m., Timm observed Karl Frost
kayaking on Ross Lake near Hozomeen Ranger Station, approximately three-
quarters of a mile south of the Canadian Border.  Timm spotted Frost again
at about 11:30 a.m., about three miles south of where he had spotted him
earlier.  Timm testified that Frost appeared to be a beginning kayaker
intent on paddling south.
     Timm returned to the Hozomeen Ranger Station where he checked on
Frost's self-issued permit.  The permit indicated that Frost planned to
stay at Lightning Creek campground between October 6th and 9th.  No site
was checked off for October 5th, the day on which Timm observed Frost.
Timm testified that he conferred with another ranger about what he had
observed and then decided to find Frost to see what he would do next.
     Timm saw Frost for the third time at about 4:30 p.m., approximately
five miles south of Lightning Creek campground.  A half hour later, and two
miles farther south, Frost stopped and got his boat out of the water onto a
steep and rocky shore with no official campground, about 17 miles south of
the border.  Timm testified that in his opinion Frost had chosen a poor
place to pull out.  By this time it was getting dark.  Timm, who was in
uniform and armed, drove the Park Service Boat over to the rocky shore.  He
asked Frost for identification and a backcountry camping permit.  Frost had
no identification but did provide his permit.  He explained that he had
left his identification in his car, which was parked at the Hozomeen Ranger
Station.  Timm asked Frost why he was seven miles past the campground he
listed on the permit, to which Frost responded he just wanted to look
around.  Timm then told Frost that he was concerned that Frost might be
smuggling contraband into the United States and asked to see what was
inside the kayak.  Timm did not tell Frost he had the right to refuse to
consent to Timm's request to see what was inside the kayak.  Frost agreed
to the search and removed the camping gear from the back cargo hatch of the
kayak.  After he had finished Timm told Frost 'Okay.  You can go ahead and
do the front hatch, too.'  Frost removed five dry bags from the front cargo
hatch.  Timm asked Frost 'What's in the bags?'  Timm then asked Frost to
remove the items inside of the bags.  Frost did as asked and showed Timm
the contents of the bags, many of which contained marijuana.  Timm took
Frost into custody and searched him for weapons.  After allowing Frost to
change to dry clothes, Timm read Frost his Miranda rights and placed him
under arrest.

ANALYSIS
I. Standard of Review

When reviewing the denial of a suppression motion, we determine whether
substantial evidence supports the findings of fact to which error has been
assigned and then determine whether the findings support the conclusions of
law. State v. Neeley, 113 Wn. App. 100, 104-06, 52 P.3d 539 (2002); State
v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994).  Whether a seizure
occurred is a mixed question of law and fact. We give the trial court's
factual findings great deference but ultimately must decide as a question
of law whether those facts constitute a seizure. Our review of this
question is de novo. State v. Thorn, 129 Wn.2d 347, 351, 917 P.2d 108
(1996).
II. Frost's Illegal Detention Claim

     Frost claims that Timm seized him by demanding Frost's identification
and backcountry permit.  A person is seized under Article I, sec. 7 of the
Washington State Constitution only when, by means of physical force or a
show of authority, his freedom of movement is restrained, when in light of
all of the circumstances a reasonable person would not believe he or she is
free to leave or to otherwise decline an officer's request and end the
encounter.  State v. Young, 135 Wn.2d 498, 510-11, 957 P.2d 681 (1998).
This is a purely objective standard that looks to the actions of the law
enforcement officer.  Young, 135 Wn.2d at 509-10.
The purpose of Article 1, sec. 7 is not to eliminate all contact between
the police and the citizenry, but to prevent arbitrary and oppressive
interference by enforcement officials with the privacy and personal
security of individuals.  See e.g. United States v. Martinez-Fuerte, 428
U.S. 543, 554, 96 S. Ct. 3074 (1976); State v. O'Neill, 148 Wn.2d 564, 575,
62 P.3d 489 (2003); Kelleher v. Minshull, 11 Wn.2d 380, 401-02, 119 P.2d
302 (1941); United States v. Mendenhall, 446 U.S. 544, 553, 100 S. Ct. 1870
(1980).  In Mendenhall the Court stated:
As long as the person to whom questions are put remains free to disregard
the questions and walk away, there has been no intrusion upon that person's
liberty or privacy as would under the Constitution require some
particularized and objective justification.
. . .
{C}haracterizing every street encounter between a citizen and the police as
a "seizure," while not enhancing any interest secured by the Fourth
Amendment, would impose wholly unrealistic restrictions upon a wide variety
of legitimate law enforcement practices. The Court has on other occasions
referred to the acknowledged need for police questioning as a tool in the
effective enforcement of the criminal laws. "Without such investigation,
those who were innocent might be falsely accused, those who were guilty
might wholly escape prosecution, and many crimes would go unsolved. In
short, the security of all would be diminished.
. . .
Examples of circumstances that might indicate a seizure, even where the
person did not attempt to leave, would be the threatening presence of
several officers, the display of a weapon by an officer, some physical
touching of the person of the citizen, or the use of language or tone of
voice indicating that compliance with the officer's request might be
compelled.

Mendenhall, 446 U.S. at 554. (citations omitted)  The United States Supreme
Court's comments on this issue have been favorably noted by the Washington
State Supreme Court.  See O'Neill, 148 Wn.2d at 575.
Frost identifies five reasons why no reasonable person would have felt free
to end his interaction with Timm:
1.   Frost was approached by an agent of the Federal government wearing a
National Park Service uniform, and carrying a firearm.
2.   The officer explained to Frost that because Frost had just crossed the
international border and appeared to be involved in smuggling, the officer
was suspicious.
3.   The officer did not tell Frost he could refuse consent to search.
4.   The officer did not tell Frost he could choose to leave.  On the
contrary, the officer testified that he was not going to allow Frost to
leave the scene.
5.   Because the officer was in a power boat and Frost was in a human-
powered kayak, he did not have any ability to leave the scene against the
officer's instructions.

The mere fact that an armed, uniformed officer stops to question someone is
not a seizure.  Timm's explanations for his suspicions and interests in
questioning Frost were not a show of force or authority amounting to
restraint.  The fact that Timm did not tell Frost he could refuse to
consent to the search does not go to the threshold question of whether he
was free to leave.  Timm's decision not to tell Frost that he could leave
fails to illustrate any affirmative restraint.  Timm's uncommunicated
subjective intent is irrelevant.  Additionally, whether Frost believed he
could outrun Timm is not relevant to whether he was free to attempt to
leave; if he was free to leave there is no reason he would have been
followed.  None of the reasons asserted by Frost alone support an objective
belief by a reasonable person that he was restrained.  Taken together these
facts are within the variety of legitimate law enforcement practices
contemplated in Mendenhall.  None of these reasons, standing alone or
together, objectively amount to a 'seizure' for the purposes of Article 1,
sec. 7 of the Washington State Constitution.
III. Knowing and Voluntary Consent

     Frost argues that the state failed to prove that he knowingly and
voluntarily consented to a search of his kayak.  'A search and seizure
without a warrant  is per se unreasonable unless it falls within one of the
few specifically established and well-delineated exceptions to this rule.'
State v. Werth, 18 Wn. App. 530, 534, 571 P.2d 941 (1977) (citing Coolidge
v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022 (1971)).  'One such
exception, which is also exempt from the probable cause requirement, occurs
when a person consents to a search.'  Werth, 18 Wn. App. at 534 (citing
Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041 (1973)).  But,
consent is not valid unless it is freely and voluntarily given.  O'Neill,
148 Wn.2d at 588.
In determining whether consent was freely and voluntarily given we look to
the totality of the circumstances, including '(1) whether Miranda warnings
had been given prior to obtaining consent; (2) the degree of education and
intelligence of the consenting person; and (3) whether the consenting
person had been advised of his right not to consent.'  State v. Shoemaker,
85 Wn.2d 207, 212, 533 P.2d 123 (1975).  'Additional factors that may
affect the voluntariness of consent include express or implied claims of
authority to search.' State v. Flowers, 57 Wn. App. 636, 645, 789 P.2d 333
(1990).  'No one factor is dispositive.'  State v. Bustamante-Davila, 138
Wn.2d 964, 982, 983 P.2d 590 (1999) (citing State v. Smith, 115 Wn.2d 775,
789, 801 P.2d 975 (1990)).
In Bustamante-Davila, a foreign national argued that his firearm was
illegally seized because he was not advised of his right to refuse to
consent to entry into his home nor given Miranda warnings.  Bustamante-
Davila, 138 Wn.2d at 966-67, 974-75.  The Washington State Supreme Court
upheld the trial court's ruling that 'where testimony does not otherwise
suggest coercion, the mere fact that the police did not give Miranda
warnings or advise the resident of his right to refuse consent will not
negate the consent.'  Id. at 974-75, 983-84.  In Bustamante-Davila, a
United States Immigration and Naturalization Service (INS) agent,
accompanied by at least four local police officers, knocked on the
defendant's door.  Id. at 968.  The defendant looked out of his window and
saw both the INS agent and the police officers.  Id. at 968.  The INS agent
asked permission to enter the defendant's home.  Id. at 968-69.  The
defendant responded by stepping back and stating 'Yeah.  You can come.'
Id. at 969.  The INS agent and the police officer at the front of the house
entered.  Id. at 969.  After hearing the others inside, a police officer
stationed at the rear of the house walked around to the front and also went
inside.  Id. at 969.  Once inside they noticed a rifle against the wall of
the defendant's living room and asked him whether it was his.  Id. at 969-
70.  The defendant responded that it was.  Id. at 969-70.  The police
officers arrested the defendant because he was a felon and not permitted to
keep a firearm.  Id. at 969-70.  The defendant in Bustamante-Davila was
neither advised of his right to refuse entry nor read his Miranda warnings
and the Washington State Supreme Court held that neither of those facts
vitiated his consent.  Id. at 974-75, 983-84.  The defendant was of at
least average intelligence and given the facts of the case the Washington
State Supreme Court determined that he had freely and voluntarily consented
to the entry.  Id. at 974-75, 981, 983-84.
     Frost argues that the totality of the circumstances test applied to
his case indicates that he did not freely and voluntarily consent to the
search.  '{W}here testimony does not otherwise suggest coercion, the mere
fact that the police did not give Miranda warnings or advise the resident
of his right to refuse consent will not negate the consent.'  Bustamante-
Davila, 138 Wn.2d at 974-75, 983-84.  Here, although Frost was neither
given Miranda warnings nor informed of his right to refuse or limit
consent, he consented to the search.1  Additionally, it is, evident from
Timm's testimony and undisputed by Frost that Frost is a person of at least
average or higher intelligence.
Implied or express claims of authority to search may affect the
voluntariness of consent.  Flowers, 57 Wn. App. at 645.  Frost does not
claim that Timm expressly stated that he had authority to search.  Frost
contends that Timm's conduct amounted to an implied claim of authority to
search.
Timm was in uniform and armed but he was alone.  This by itself is not a
show of force or coercion, nor does it imply authority to search, given
that five armed uniformed officers who appeared at Bustamante-Davila's
front door did not constitute a show of force or coercion nor an implied
authority to search.  Timm did not draw his weapon or do anything else
coercive.
Timm did not order Frost to let him search the kayak.  To the contrary,
Timm requested that Frost show him what was in the kayak.  Frost agreed and
then he himself emptied the contents of the back hatch, and later the front
hatch.  We decline to read Timm's statement to Frost that 'You can go ahead
and do the front hatch, too' as an order.  The word 'can' is typically used
to indicate that which is permitted, not required.  The record does not
establish that Timm's tone or other actions could indicate that his
statement was an order.
Frost next contends that Timm told Frost that he would not be permitted to
leave unless he allowed him to search the kayak.  Timm's testimony does not
support Frost's contention.  Frost's testimony, on the other hand, suggests
that Timm told him that he could not leave until searched.  The trial
court, while finding that Timm and Frost had essentially the same
testimony, did not find that Timm ordered Frost to show the contents of the
kayak.  Any conflict in testimony is a credibility question for the trial
court.  'Evaluating the credibility of witnesses is a function of the trial
court and the findings of the trial court are to be given great weight on
review.'  State v. Rodriguez, 20 Wn. App. 876, 878, 582 P.2d 904 (1978).
Timm's testimony does indicate that had Frost decided he wanted to leave
that Timm would not have let him do so.  Timm did not communicate this
intent to Frost at the lake.  Had he communicated that intent to Frost or
acted on it we would have different facts before us.
Frost has not made a convincing connection between Timm's subjective intent
on this point and any communication of an implied or express authority to
search.  The facts in this record simply do not demonstrate that Timm's
words or conduct implied or expressed a claim of authority to search.  He
identified himself honestly and then asked permission to see what was in
the kayak.  Frost consented to the search and eventually showed Timm that
he had marijuana.
Based on this record and how Washington Courts have applied the totality of
the circumstances test since its first articulation, the evidence simply
does not support Frost's contentions.  The state has met its burden of
proving consent was freely and voluntarily made.  Frost was not seized
illegally.  His consent to Timm's request to see the contents of the kayak
was voluntary.

Affirmed.

                              /s/ Appelwick, J.
WE CONCUR:

/s/ Becker, J.                          /s/ Coleman, J.

1 The trial court entered the following undisputed finding of fact: 'Timm
asked for consent to search Frost's belongings.  Frost said 'yeah'.'
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