Opinion
No. 37521-4-II.
March 31, 2009.
Appeal from a judgment of the Superior Court for Clark County, No. 07-1-01905-7, Roger A. Bennett, J., entered March 19, 2008.
Affirmed by unpublished opinion per Hunt, J., concurred in by Penoyar, A.C.J., and Houghton, J.
UNPUBLISHED OPINION
Barry L. Brown appeals from his conviction for unlawful possession of methamphetamine. He argues that the trial court erred by admitting his statements because the police did not honor his right to remain silent. A commissioner of this court initially considered Brown's appeal as a motion on the merits under RAP 18.14 and then referred it to a panel of judges. Concluding that the trial court did not err, we affirm Brown's conviction.
FACTS I. Unlawful Possession of Methamphetamine
On October 22, 2007, Department of Corrections (DOC) officers placed Barry Brown under arrest for violating his community custody conditions. The DOC officers took Brown to his home and searched it. Brown's wife, Sandra, was present when the DOC officers arrived with Brown. She gave them consent to search the house and then left. The DOC officers found a baggie in a pair of black jeans in a back bedroom. The baggie contained a substance that DOC officers suspected was methamphetamine.
Vancouver Police Department Detective Patrick Kennedy arrived on the scene to assist the DOC officers with the search of Brown's home. Kennedy field tested the substance in the baggie, which came back positive for methamphetamine. Kennedy then informed Brown of his constitutional rights, including his right to remain silent. Brown acknowledged his rights; and when Kennedy asked Brown if he wished to speak further about the methamphetamine, Brown promptly replied, "[N]ope."
Soon after Brown declined to speak, Kennedy and the DOC officers went into a different room and stood about 10 to 12 feet away from Brown with the door open. They discussed whether the pants, in which they found the methamphetamine, belonged to Brown or his wife, based on the size of the pants. They discussed whether to interview Brown's wife.
Despite the officers' attempts not to be heard, Brown overheard this discussion and announced that the pants belonged to him, not his wife. After Brown volunteered this statement, Kennedy reminded Brown two or three times of his right to remain silent and asked whether Brown wanted to waive that right. Brown indicated each time that he wished to waive his right to remain silent, and he continued to talk. To prove that the pants belonged to him, Brown stood up, turned around, and encouraged Kennedy to compare his (Brown's) waistline to the pants.
II. Procedure
The State charged Brown with unlawful possession of methamphetamine. After a joint CrR 3.5 hearing and bench trial, the trial court entered findings of fact and concluded that: (1) Brown's initial statement about ownership of the pants was voluntary and not the product of custodial interrogation; and (2) his subsequent statements about his ownership of the pants and the methamphetamine were admissible because Brown had re-initiated contact and Kennedy had reminded Brown of his right to remain silent two or three times. The trial court found Brown guilty.
The State also charged Brown with unlawful use of drug paraphernalia in violation of RCW 69.50.412(1). The trial court found Brown guilty. He does not appeal from that conviction.
Brown appeals.
ANALYSIS
Brown argues that the trial court erred in admitting his statements, in which he admitted ownership of the methamphetamine, because he made the statements in response to a custodial interrogation after he had invoked his right to remain silent. We disagree.
I. Standard of Review
Where the trial court determines a confession voluntary, we will not disturb that determination on appeal if substantial evidence supports the trial court's finding the confession voluntary by a preponderance of the evidence. State v. Aten, 130 Wn.2d 640, 664, 927 P.2d 210 (1996). We uphold a trial court's CrR 3.5 findings of fact if substantial evidence supports them. State v. Broadaway, 133 Wn.2d 118, 131, 942 P.2d 363 (1997). We review a trial court's conclusions of law de novo. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999). Brown does not assign error to any findings of fact; therefore those findings are verities on appeal. Broadaway, 133 Wn.2d at 131. We therefore limit our analysis to whether the findings of fact support the conclusions of law. State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994).
Police must advise a suspect of his constitutional rights before they may conduct a custodial interrogation. Arizona v. Miranda, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). This warning must advise the suspect of his right to remain silent; that his statements may be used against him; that he may confer with an attorney; and that if he is unable to afford an attorney, he is entitled to have one appointed without charge. Police may not engage in custodial interrogation of a suspect who has invoked his right to remain silent. Miranda, 384 U.S. at 444. Custodial interrogation occurs whenever police subject a person in custody to either express questioning or its functional equivalent. Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980). Interrogation includes words or actions on the part of police, other than those normally attendant to arrest and custody, that police should know are reasonably likely to elicit an incriminating response from the suspect. Id. Police officers must scrupulously honor a suspect's right to remain silent. Michigan v. Mosley, 423 U.S. 96, 103-04, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975).
A suspect may waive the right to remain silent so long as the waiver is made knowingly, voluntarily, and intelligently. State v. Davis, 73 Wn.2d 271, 282, 438 P.2d 185 (1968). A confession is voluntary, and therefore admissible, if made after the defendant is advised of his rights and then knowingly, voluntarily, and intelligently waives them. Aten, 130 Wn.2d at 663. The State must prove by a preponderance of the evidence that a defendant validly waived his constitutional rights. State v. Earls, 116 Wn.2d 364, 379, 805 P.2d 211 (1991).
II. Waiver; Not in Response to Custodial Interrogation
Brown asserts that the officers did not scrupulously honor his invocation of his right to remain silent. He contends they should have known that (1) their conversation about questioning his wife, conducted within earshot, was likely to elicit an incriminating statement from him; and (2) he would hear their conversation because of the small size of the home and because of his desire to protect his wife. These arguments fail.
Neither party disputes that Brown was in custody or that Brown initially invoked his right to remain silent. The issue is whether the officers' subsequent discussion about Brown's wife's potential involvement was reasonably likely to elicit an incriminating response from him and, therefore, was a custodial interrogation. The trial court ruled that the officers' discussion in another room was not a custodial interrogation:
The police [Detective Kennedy and DOC officers] did not, and should not, under the circumstances of this case, have known that their comments were reasonably likely to elicit an incriminating response from [Brown] because they did not know that they could hear them, and, they did not want [Brown] to hear them.
Conclusion of Law 1, Clerk's Papers at 21. We agree with the trial court.
This conclusion of law is supported by unchallenged Findings of Fact 12 and 13. In Finding of Fact 12, the trial court found that Kennedy and the DOC officers "testified that their conversation was not meant to be heard by [Brown]. The conversation was held in a different room than where [Brown] was sitting, down a hallway, maybe 10 to 12 feet away, and the door in the room where the conversation took place was open." CP at 21. In Finding of Fact 13, the trial court found that "[t]he officers were making an effort not to be heard by [Brown], albeit unsuccessful." And in Conclusion of Law 2, the trial court found credible the officers' testimony about their efforts to keep their conversation private. The Findings of Fact thus support Conclusion of Law 1, that the officers' conduct was not reasonably likely to elicit an incriminating response from Brown. Therefore, the officers' conversation was not a custodial interrogation of Brown.
The foreign cases that Brown cites do not undermine this result. In United States v. McShane, 462 F.2d 5 (9th Cir. 1972), the Ninth Circuit rejected a defendant's argument that his confession was involuntary because police took his girlfriend into custody along with him. Id. at 7. The Court held that the police did not behave improperly because they (1) had reason to suspect his girlfriend of criminal activity, and (2) did not make any explicit threats or promises to the defendant about his girlfriend's fate if he confessed. Id. In Tipton v. Commonwealth, 224 Va. 256, 295 S.E.2d 880 (1982), the defendant argued successfully that his confession was involuntary because police officers explicitly threatened to jail his pregnant fiancé if he did not confess. Id. at 258-59.
Unlike Tipton, the officers here never made any statements to Brown about taking his wife into custody. Instead, they spoke amongst themselves in a different room, about 10 to 12 feet away, and attempted to keep Brown from hearing them. As in McShane, the officers had reason to suspect Brown's wife because she lived in the house where the police found the drugs, and they suspected the pants might belong to her. Also as in McShane, the officers never made any threats or promises to Brown. Tipton does not apply and McShane does not help Brown.
We note, however, that after Brown volunteered his statement that the pants were his, not his wife's, the officers again gave him his Miranda warnings to be sure that he understood and to ascertain that he then wanted to waive his right to remain silent. Only after receiving these assurances and waiver from Brown, did the police confirm his statements.
We hold that the trial court did not err in admitting Brown's statements. Accordingly, we affirm Brown's judgment and sentence.
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.
HOUGHTON, J. and PENOYAR, A.C.J., concur.