                                                                      FILED
                                                                   AUGUST 15, 2019
                                                              In the Office of the Clerk of Court
                                                             WA State Court of Appeals, Division III




           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION THREE

 STATE OF WASHINGTON,                         )
                                              )        No. 36640-5-III
                     Appellant,               )
                                              )
          v.                                  )
                                              )
 JEFFREY JEROME JOHNSON,                      )        UNPUBLISHED OPINION
                                              )
                     Respondent.              )

      SIDDOWAY, J. — The State appeals a suppression ruling that fails to heed modern

law providing that Miranda1 warnings are required only when a suspect’s freedom of

action is curtailed to a degree associated with formal arrest. We reverse and remand.

                    FACTS AND PROCEDURAL BACKGROUND

      Jeffrey Johnson and his wife were appointed guardians of their eight or nine-year-

old niece, Lea,2 in 2009, and she began living with them. In 2016, Lea made a report at

school that she had been molested by Mr. Johnson. Sergeant Aaron Kanooth and a Child

Protective Services’ representative met with Lea, who told them about two incidents of



      1
        Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
      2
        “Lea” is a pseudonym. See Gen. Order of Division III, In Re the Use of Initials
or Pseudonyms for Child Victims or Child Witnesses (Wash. Ct. App. June 18, 2012),
http://www.courts.wa.gov/appellate_trial_courts/?fa=atc.genorders_orddisp&ordnumber
=2012_001&div=III.
No. 36640-5-III
State v. Johnson


sexual molestation and other inappropriate conduct by her uncle that began in or about

2014.

        Sgt. Kanooth and another Clark County deputy traveled to the Johnson home to

speak with Mr. Johnson about the allegations, and Mr. Johnson suggested that they speak

in the driveway, which they did. Although Mr. Johnson defended his actions, claiming to

have been misunderstood, he made statements that paralleled information Lea had

provided. After Mr. Johnson answered the deputies’ questions, they arrested him and, at

that point, read him Miranda warnings. He did not speak to them further. Mr. Johnson

was later charged with child molestation in the second degree.

        At a CrR 3.5 hearing on the admissibility of Mr. Johnson’s statements to the

deputies, the trial court expressed concern about their failure to provide Mr. Johnson with

Miranda warnings before asking him questions that they knew were likely to elicit

incriminating responses. The State argued that the relevant issue was not the nature of

the questions, but whether, during the questioning, Mr. Johnson’s freedom was curtailed.

Even defense counsel stated that the issue appeared to be whether there was a custodial

interrogation, and “[t]here’s very little in the record actually to support that he was in

custody.” Report of Proceedings at 21.

        The trial court explained that its thought process was “whether or not law

enforcement can have what some might call carte blanc[he] to interrogate people just

because they don’t have handcuffs on them,” which it viewed as raising an issue distinct

                                              2
No. 36640-5-III
State v. Johnson


from whether Mr. Johnson was in custody. It ruled that the statements would not be

admissible for purposes other than impeachment.

      It later entered the following findings and conclusions relevant to the appeal:

                                  FINDINGS OF FACT
             ....
             5. Sergeant Kanooth asked to speak to the defendant and the
      defendant agreed. The defendant came out of his house and directed
      Sergeant Kanooth and Officer Graves to the front of the house to speak in
      the driveway.
             6. The defendant’s Miranda warnings were not read at this time.
             7. Sergeant Kanooth asked the defendant about the allegations and
      about conversations that he had with the alleged victim . . . about the
      allegations.
            8. Sergeant Kanooth was asking the defendant questions that were
      reasonably likely to [e]licit incriminating statements.
             9. The defendant was not placed under arrest or placed in handcuffs
      at any point before or during this conversation with Sergeant Kanooth.
            10. The defendant was free to leave and not in custody when the
      statements were made. . . .

                               CONCLUSIONS OF LAW
             ....
             2. The defendant was not in custody at the time he made statements
      to police.
            3. The defendant was free to leave during the entirety of his
      conversation with police.
             4. The conversation between police and the defendant was not a
      custodial interrogation.
             5. The defendant’s statements were voluntarily made.
             6. When police engage in conversation with an individual, and the
      police officer’s questions are likely to elicit incriminating statements, the

                                             3
No. 36640-5-III
State v. Johnson


       police officer must first inform the individual of his rights under Miranda
       prior to any questioning, whether or not the individual is in custody.
               7. The officers asked the defendant questions reasonably likely to
       [e]licit incriminating responses, therefore the police were required to
       inform the defendant of his rights under Miranda prior to any questioning.
             8. Because Miranda was required and not given, the statements are
       not admissible in the State’s case in chief. . . .

Clerk’s Papers at 26-27.

       The State’s motion for discretionary review was granted by a commissioner of

Division Two. Division Two administratively transferred the appeal to Division Three.

                                        ANALYSIS

       In Escobedo v. Illinois, 378 U.S. 478, 490-91, 84 S. Ct. 1758, 12 L. Ed. 2d 977

(1964), the United States Supreme Court held that where a criminal investigation “is no

longer a general inquiry into an unsolved crime but has begun to focus on a particular

suspect, the suspect has been taken into police custody, the police carry out a process of

interrogations that lends itself to eliciting incriminating statements, the suspect has

requested and been denied an opportunity to consult with his lawyer, and the police have

not effectively warned him of his absolute constitutional right to remain silent,” the

accused has been denied the right to counsel guaranteed by the Sixth Amendment to the

United States Constitution.

       Two years later, and following “spirited legal debate” about Escobedo’s

ramifications, range, and desirability, the Court decided Miranda, in which it affirmed



                                              4
No. 36640-5-III
State v. Johnson


Escobedo but also “explore[d] some facets of the problems . . . of applying the privilege

against self-incrimination to in-custody interrogation, and to give concrete constitutional

guidelines for law enforcement agencies and courts to follow.” Miranda, 384 U.S. at

441-42. Among the guidelines provided was Miranda’s clarification that in speaking in

Escobedo “of an investigation which had focused on an accused,” it meant “questioning

initiated by law enforcement officers after a person has been taken into custody or

otherwise deprived of his freedom of action in any significant way.” Id. at 444 & n.4.

With that meaning clarified, it held that “the prosecution may not use statements, whether

exculpatory or inculpatory, stemming from custodial interrogation of the defendant

unless it demonstrates the use of procedural safeguards effective to secure the privilege

against self-incrimination.” Id. at 444 (emphasis added). It went on to identify the

procedural safeguards that courts have enforced in the more than half century since.

       In Berkemer v. McCarty, 468 U.S. 420, 426, 104 S. Ct. 3138, 82 L. Ed. 2d 317

(1984), the Supreme Court reviewed the decision of a federal appellate court that had

struggled with the admissibility of an accused’s pre-arrest confessions. In addition to

deciding another issue presented by Berkemer, the Supreme Court clarified the scope of

“custodial interrogation” for purposes of Miranda. Id. at 435-36.

       Explaining that Miranda must be enforced strictly, “but only in those types of

situations in which the concerns that powered the decision are implicated,” id. at 437, the



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No. 36640-5-III
State v. Johnson


Supreme Court held that ordinary traffic stops and Terry3 stops are not sufficiently

threatening or coercive to constitute custody. Id. at 439-40. Instead, the safeguards of

Miranda “become applicable as soon as a suspect’s freedom of action is curtailed to a

‘degree associated with formal arrest.’” Id. at 440 (quoting California v. Beheler, 463

U.S. 1121, 1125, 103 S. Ct. 3517, 77 L. Ed. 2d 1275 (1983) (per curiam)). Washington

decisions are in accord. State v. Harris, 106 Wn.2d 784, 789, 725 P.2d 975 (1986).

       When the issue presented by a failure to give Miranda warnings is not whether a

suspect was in custody but is instead whether he or she was being interrogated,

interrogation will include “any words or actions on the part of police . . . that the police

should know are reasonably likely to elicit an incriminating response.” State v. Sargent,

111 Wn.2d 641, 650, 762 P.2d 1127 (1988). Interrogation is not at issue here. Mr.

Johnson’s statements were clearly made in response to questioning.

       Mr. Johnson’s appellate lawyer seeks to defend the trial court’s ruling on the basis

that “[t]oday, citizens have reason to believe that failure to cooperate with the police may

be fatal,” and that “[i]nteraction with the police now is inherently coercive.” Br. of

Resp’t at 6. We credit counsel with resourcefulness for identifying an argument on

appeal, but we are both unpersuaded and powerless to ignore the controlling case law.




       3
           Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

                                              6
No. 36640-5-III
State v. Johnson


      We reverse and remand for proceedings consistent with this opinion.

      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.




WE CONCUR:




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