Opinion
No. 59925-9-I.
August 4, 2008.
Appeal from a judgment of the Superior Court for Snohomish County, No. 06-1-00811-6, Ronald L. Castleberry, J., entered April 23, 2007.
Affirmed by unpublished opinion per Lau, J., concurred in by Cox and Appelwick, JJ.
This case involves the sole question of whether a bail bond recovery agent is required to give Miranda warnings. A recovery agent apprehended and questioned Billy Garcia about a bag he threw out the motel window where he was staying. After the police recovered the bag, they found that it contained methamphetamine and a semi-automatic pistol. Garcia appeals his convictions for possession of a controlled substance with intent to manufacture or deliver and first degree unlawful possession of a firearm. He asserts that the trial court should have excluded his statements to the recovery agent because the agent failed to give Miranda warnings before asking him questions. But because the recovery agent, under the facts presented here, is not a state agent, we affirm.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Facts
On March 29, 2006, recovery agent Matthew Schultz apprehended Garcia at an Everett motel. Schultz's company sought to recover Garcia because he had "jumped bail" and its "finances were in jeopardy." Clerk's Papers (CP) at 117. Schultz had been in contact with Garcia for approximately a week or more regarding his surrender on an outstanding warrant. Schultz testified that he approached Garcia's door and called his phone, telling him to open the door. Schultz knocked on the door and identified himself as a bail recovery agent. Schultz was also wearing a jacket and badge that identified him as a recovery agent. Schultz testified that when Garcia opened the door, he forced his foot into the doorway, entered the room, and placed Garcia in handcuffs.
Garcia assigns error to the trial court's failure to enter findings of fact and conclusions of law pursuant to CrR 3.5(c). However, after a delay, the trial court did enter findings and conclusions. Garcia did not show that he was prejudiced by the delay. Therefore, his assignment of error is without merit. See State v. Alvarez, 128 Wn.2d 1, 19, 904 P.2d 754 (1995) ("An error by the court in entering judgment without findings of fact and conclusions of law is remedied by subsequent entry of findings, conclusions, and judgment.").
Schultz testified at the suppression hearing by phone because of scheduling difficulties. No party objected at the time.
Prior to contact at the motel, Schultz called 911 to notify the police of his intention to apprehend a fugitive. He wanted emergency backup assistance to be available in case something went wrong. Police arrived and were located across the parking lot from Garcia's room. The police did not direct Schultz in the apprehension. Garcia testified that he noticed a police presence as he was being led to Schultz's car. He estimated the distance between himself and the nearest officer at 35 yards. The police officers had no direct contact with Garcia. Officer John Derousse, one of the police officers who was present, testified that he approached Schultz and asked him if everything was okay. Schultz responded that everything went okay and gave a thumbs-up sign. Officer Derousse also testified that he was not paying close attention during the apprehension and was present only in the event that something went wrong. He stated that there were no flashing lights, spotlights, or sirens.
Schultz testified that he brought a "ride-along" assistant, Oscar Rabago, with him to the hotel. Schultz instructed Rabago to wait behind the hotel in case Garcia tried to escape that way. While Rabago was watching the back of Garcia's hotel room, he saw "a bag come out the window." CP at 117. Schultz testified that on the drive to the jail, there was conversation about the bag and its contents. Schultz stated that Garcia told him, "[M]an, I'm glad you guys aren't cops because I had to get rid of something out the window." Verbatim Report of Proceedings (VRP) (Feb. 22, 2007) at 61. Schultz reported that when he asked Garcia what was in the bag, Garcia said it was enough to put him away for a long time. After the police were notified about the bag, they recovered it and found a large quantity of narcotics and a gun. Garcia was charged with first degree unlawful possession of a firearm and possession of a controlled substance with intent to manufacture or deliver.
Garcia moved to suppress his statements to Schultz, and a CrR 3.5 hearing was held on February 22, 2007. The court found that the police were not a major presence and did not direct, encourage, control, or facilitate Schultz's activities. The court also found that Garcia "knew he was in the presence of private citizens who had been hired by the bonding company to pick him up because he jumped bail and the bonding company's finances were in jeopardy." CP at 117. The court found that Garcia had said, "`[M]an I'm glad you guys aren't cops'" and that he "clearly understood the difference between a private hire bail agent who's looking for him and a police officer who's investigating and reporting crime." CP at 118. The court further found that Schultz's job description did not include investigating or reporting crime. The trial court denied the suppression motion, concluding that Schultz was not a state agent and, consequently, that he was not required to give Garcia Miranda warnings. Following a bench trial on agreed facts, the trial court found Garcia guilty on all counts. He now appeals his judgment and sentence.
Analysis
Garcia contends that admission of his statements to Schultz violated his Fifth Amendment privilege against self-incrimination. He argues that recovery agents, at least under the circumstances of his apprehension, should be required to give Miranda warnings. The State contends that recovery agents are not state actors, so Miranda is inapplicable. Because Garcia does not challenge the trial court's factual findings following the CrR 3.5 hearing, they are verities on appeal. See State v. Broadaway, 133 Wn.2d 118, 131, 942 P.2d 363 (1997). We review de novo whether the trial court derived the correct legal conclusions from its findings of fact. See State v. Solomon, 114 Wn. App. 781, 789, 60 P.3d 1215 (2002).
In addition, Garcia does not challenge the facts contained in the parties' February 22, 2007 stipulation to facts.
The Fifth Amendment states, "No person . . . shall be compelled in any criminal case to be a witness against himself. . . ." U.S. Const. amend. V. The general rule is that this privilege against self-incrimination must be asserted; it is not self-executing. State v. Sargent, 111 Wn.2d 641, 648, 762 P.2d 1127 (1988). However, when law enforcement officers take a person into their custody for interrogation, they may quickly overbear the person's will. Miranda, 384 U.S. at 444. Under these circumstances, any statements the person makes are deemed to be compelled in violation of the Fifth Amendment, unless the State can show they were preceded by a knowing and voluntary waiver of the privilege. Sargent, 11 Wn.2d at 648. The Miranda warnings are used to ensure a knowing and voluntary waiver of the right to remain silent. Id. Statements obtained in violation of a defendant's Fifth Amendment rights must be suppressed. State v. Warner, 125 Wn.2d 876, 888, 889 P.2d 479 (1995).
The Washington Constitution contains a similar provision stating, "No person shall be compelled in any criminal case to give evidence against himself." Wash. Const. I, § 9.
While Miranda warnings were developed to address the coercive environment of police custody, they are also required when other state agents subject a person to custodial interrogation. State v. Heritage, 152 Wn.2d 210, 214-16, 95 P.3d 345 (2004); see also Estelle v. Smith, 451 U.S. 454, 466, 101 S. Ct. 1866, 68 L. Ed. 2d 359 (1981) (applying Miranda to psychiatrist conducting court-ordered examination); Mathis v. United States, 391 U.S. 1, 88 S. Ct. 1503, 20 L. Ed. 2d 381 (1968) (applying Miranda to IRS agent conducting a tax investigation).
For example, in Heritage, the court held that park security officers employed by the City of Spokane were state actors even though they were not police officers. Heritage, 152 Wn.2d at 217. The security officers approached a group of youths who they suspected were smoking marijuana and questioned the juveniles about what appeared to be a marijuana pipe. One of them admitted that it was hers. Id. at 213. The court noted that the security officers wore bullet proof vests, duty belts containing pepper spray, a collapsible baton, handcuffs, a radio, and a flashlight holder, and that they approached the juveniles asking authoritative questions. Id. at 217. The court concluded that a reasonable person in Heritage's position would have viewed the park security officers as law enforcement officers with authority over him or her. Id. Based on those facts and that the officers' duties included investigating and reporting crimes, the court held that they were state actors for Miranda purposes. Id. The court distinguished this result from its earlier holding in State v. Valpredo, 75 Wn.2d 368, 450 P.2d 979 (1969), on the ground that Valpredo involved "private retail store security guards." Heritage, 152 Wn.2d, at 215 (emphasis original); see also State v. Gonzales, 24 Wn. App. 437, 440, 604 P.2d 168 (1979) (holding that private security guard was not a state agent for purposes of Fourth Amendment where there was no evidence the state "instigated, encouraged, counseled, directed or controlled" his actions).
Ultimately, the court concluded that the encounter did not amount to "custodial interrogation," so the officers were not required to give Miranda warnings. Heritage, 152 Wn.2d at 20.
Here, Garcia argues that Schultz should be deemed a state actor because he was more like the park security officers in Heritage than the private security guards in Valpredo. The State argues that recovery agents are private citizens, not government employees engaged in law enforcement, so they should not be required to give Miranda warnings.
Washington defines a recovery agent as "a person who is under contract with a bail bond agent to receive compensation . . . for locating, apprehending, and surrendering a fugitive criminal defendant for whom a bail bond has been posted." RCW 18.185.010(10). Washington requires recovery agents to be trained, tested, and licensed. RCW 18.185.250-.260. They are also required to notify the police before making a planned forced entry. RCW 18.185.300. But their power to apprehend fugitives does not derive from statute; rather, its source is the contractual relationship between the bail bond company and its bondee. See State v. Portnoy, 43 Wn. App. 455, 466, 718 P.2d 805 (1986) (noting that a bail bondsman has certain extraordinary powers resulting from his contract with his client). Moreover, in enacting regulations on recovery agents, the legislature stated that it did not intend to "restrict or limit in any way the powers of bail bond agents as recognized in and derived from the United States Supreme Court case of Taylor v. Taintor, [ 83 U.S. (16 Wall.) 366, 371, 21 L. Ed. 287 (1873)]." RCW 18.185.260(6). In that case the Court described the broad powers a bail bondsman obtains through his contract with the bondee.
When bail is given, the principal is regarded as delivered to the custody of his sureties. Their dominion is a continuance of the original imprisonment. Whenever they choose to do so, they may seize him and deliver him up in their discharge; and if that cannot be done at once, they may imprison him until it can be done. They may exercise their rights in person or by agent. They may pursue him into another State; may arrest him on the Sabbath; and, if necessary, may break and enter his house for that purpose.
Taintor, 83 U.S. (16 Wall.) at 371. Thus, a recovery agent's authority, while regulated by statute, is fundamentally private in nature. The state's regulatory framework does not turn such individuals from private citizens into state agents. Cf. Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S. Ct. 2777, 73 L. Ed. 2d 534 (1982) (mere fact that a business is subject to state regulation does not by itself convert its action into that of the State for purposes of the Fourteenth Amendment).
Garcia also argues that by apprehending fugitives and turning them over to the court system, recovery agents perform a law enforcement function that renders them state actors. However, unlike a police officer who has broad authority to arrest criminal suspects, a recovery agent is limited to capturing fugitives with whom he is in a contractual relationship. RCW 18.185.270. Moreover, the fact that private citizens engage in some of the same activities that police perform does not necessarily make those citizens state agents. See Valpredo, 75 Wn.2d at 369-70 (apprehension of suspect and evidence gathering by private store detectives did not make them state agents). Recovery agents are charged with finding fugitives and bringing them to court; their job is to secure their bail bondsman's finances, not to seek a conviction of the suspect. Compare Heritage, 152 Wn.2d at 217 (park security officers were state actors partly based on fact that their duties included investigating and reporting crimes).
The fact that recovery agents apprehend fugitives and hand them over to the criminal justice system does not make them state actors for purposes of Miranda. This conclusion is in accord with decisions from other jurisdictions. See, e.g., State v. Perry, 50 N.C. App. 540, 274 S.E.2d 261, 262 (1981) (finding that because the bail bondsman's right to arrest arose out of private contract, he had no obligation to give Miranda warnings); State v. Dorton, 696 P.2d 1218, 1219 (Utah 1985) (explaining that a bondsman has no duty to administer a Miranda warning); United States v. Rose, 731 F.2d 1337, 1345 (8th Cir. 1984) (holding that two bondsmen were not required to give Miranda warnings because they were acting in a private capacity rather than as special duty sheriffs). Garcia points to no case holding that a recovery agent is a state actor who must give Miranda warnings.
Garcia argues that even if not all recovery agents are state actors, Schultz should be deemed a state actor under the specific factual circumstances here. He contends that under Heritage, if a reasonable person in his position would have believed that Schultz was a law enforcement officer with authority over him, this would be sufficient to establish state action for Miranda purposes. We need not address this contention because we conclude that a reasonable person in Garcia's position would not have believed Schultz to be a law enforcement officer. Garcia points to Schultz's badge, the bullet proof vest under his shirt, his handcuffs, the presence of the police, and the thumbs-up Schultz gave to the police officers before they left. However, the trial court found that the police were not a major presence and were there only to provide assistance if violence unexpectedly broke out. The police had no direct contact with Garcia and did not control, direct, encourage, or facilitate Schultz in his apprehension of Garcia. Schultz's thumbs-up sign simply indicated that he had successfully apprehended the fugitive without incident and a police presence was no longer necessary. Schultz's badge reiterated his status as a recovery agent. Such agents, who are also known as "bounty hunters," use handcuffs and bullet proof vests because of the dangerous nature of their profession. This does not make them law enforcement officials or state agents. The trial court found that Garcia knew this and even stated, "[M]an I'm glad you guys aren't cops." VRP (Feb. 22, 2007) at 61. Under these circumstances, Schultz was not at all like the park security officers in Heritage. Because he was acting as a private citizen, he was not required to give Garcia Miranda warnings.
Garcia also contends that there were "flashing lights" during the apprehension.
This assertion conflicts with Officer Derousse's testimony that there were no flashing lights, spotlights, or sirens. While the trial court made no express findings to resolve this conflict, it impliedly rejected Garcia's contention by finding that the police officers did not facilitate the activities of the recovery agent. In any event, the trial court's unchallenged factual findings amply support its conclusion that a reasonable person in Garcia's position would not have perceived Schultz to be law enforcement.
In a pro se statement of additional grounds, Garcia contends that his right to confrontation was violated when Schultz was permitted to testify telephonically at the suppression hearing. However, the record indicates that Garcia's counsel assented to the procedure for scheduling reasons and had ample opportunity to cross-examine Shultz. Moreover, the record makes clear that Schultz would have testified in person if necessary, and Garcia fails to show that he was prejudiced by Schultz not testifying in person. Under the circumstances here, there is no manifest constitutional error.
Affirmed.