                                                                             FILED
                                                                           DEC. 9,2014
                                                                   In the Office of the Clerk of Court
                                                                 W A State Court of Appeals, Division III




          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                             DIVISION THREE 


STATE OF WASHINGTON,                          )
                                              )            No. 31272-1-II1
                     Respondent,              )
                                              )
       v. 	                                   )
                                              )
ETHAN D. YORK,                                )            UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       KORSMO,   J. - Ethan York challenges his juvenile court adjudications for first

degree malicious mischief and reckless endangerment on the basis that the trial court

erroneously admitted into evidence his statements to the investigating detective. We

conclude that the trial court correctly determined that the statements were not the subject

of custodial interrogation and affirm the adjudications.

                                          FACTS

       Two Spokane County Sheriffs Deputies, working under the sheriffs contract with

the City of Spokane Valley, responded at high speeds to a report of a large fight in

progress in the city. The first deputy's vehicle hit some object but continued down the

road, while the second deputy's vehicle hit a different object, went into a spin, and

ultimately overturned, injuring the deputy. An investigation determined that tree

branches and a log had been placed on the street. The log had caused the accident.



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No. 31272-1-II1
State v. York


          Detectives investigating the incident received a tip that Curtis Whittikind and his

cousin, Ethan York, were responsible for the accident. The detectives spoke with

Whittikind who told them how to find Mr. York. Detective Welton and Deputy Moser

went to the home of Erin Carlson, the mother of Mr. York's girl friend. Ethan York was

living at the Carlson home at the time. Ms. Carlson invited the two investigators into the

home to speak with York about a criminal investigation.

          Mr. York and his girl friend came up from the basement and sat on a couch in the

living room with the detective. Ms. Carlson stood in the doorway to the living room

while Deputy Moser stood in the foyer. Welton told York that he was investigating "a

crime" and had spoken to Whittikind, who had "spilled it to me." Mr. York became

glum. Detective Welton encouraged York to speak, but did not question him. Mr. York

admitted his involvement with "putting things in the road" and wrote a statement to that

effect.

          The statement was admitted at the adjudication after the juvenile court concluded

it was not the product of a custodial interrogation. The statement was the sole evidence

connecting Mr. York to the incident. The court concluded that Mr. York had committed

both of the charged offenses.

          Mr. York then timely appealed to this court.

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No. 31272-1-III
State v. York


                                        ANALYSIS

       The sole issue presented in this appeal is a contention that the court erred by

concluding Mr. York's statements were not the products ofa custodial interrogation.

Well settled law confirms that the trial judge correctly assessed the situation.

       Prior to conducting a custodial interrogation, an officer must first advise the

suspect of his rights regarding the interrogation. Miranda v. Arizona, 384 U.S. 436,444,

86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). A defendant is in custody for purposes of

Miranda when his freedom of action is curtailed to the degree associated with a formal

arrest. Berkemer v. McCarty, 468 U.S. 420, 440, 104 S. Ct. 3138, 82 L. Ed. 2d 317

(1984). I Interrogation is "express questioning or its functional equivalent" by police.

Rhode Islandv. Innis, 446 U.S. 291, 300-01,100 S. Ct. 1682,64 L. Ed. 2d 297 (1980).

The "functional equivalent" of questioning involves behavior that police should know is

"reasonably likely to elicit an incriminating response." Id. at 302.

       The United States Supreme Court extended the protections of Miranda to juveniles

in In re Gault, 387 U.S. 1,42-57, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967). However,

juveniles are not extended additional Miranda-type protections. Id. at 55; State v. Miller,

165 Wn. App. 385, 389, 267 P.3d 524 (2011), review denied, 173 Wn.2d 1035 (2012).




       I In Berkemer, the court concluded that routine roadside seizure and questioning
did not amount to custodial interrogation. 468 U.S. at 440.

                                             3

No. 31272-1-111
State v. York


       Here, the juvenile court determined that Mr. York was not in custody and was not

subject to interrogation since he was simply encouraged to tell his story. We agree with

the determination that Mr. York was not in custody and, therefore, need not address his

argument that the interview was the functional equivalent of interrogation.

       Because Miranda "custody" is equated with a formal arrest, questioning that takes

place in public or private environments outside of police control frequently is not

considered "custodial." For example, juveniles questioned in Spokane's Riverfront Park

were not "in custody." State v. Heritage, 152 Wn.2d 210,95 P.3d 345 (2004). An adult

questioned in the course of a search of her apartment was not in custody in State v. Rosas-

Miranda, 176 Wn. App. 773, 309 P.3d 728 (2013). A juvenile rape suspect questioned in

his own home in his mother's presence was not found to be "in custody" in State v. SJ. W,

149 Wn. App. 912, 206 P.3d 355 (2009).

       Similarly here, Mr. York was not in custody while he sat with his girl friend on the

couch in the living room of the house where he was residing. There were no hallmarks of

a formal arrest that could have turned this conversation into a custodial setting. 2 The

juvenile court correctly concluded that Mr. York was not in custody.




       2 This court has even concluded that advising a suspect that he was under arrest and
placing him in a patrol car did not constitute an arrest because he was not deprived of his
telephone. See State v. Radka, 120 Wn. App. 43, 83 P.3d 1038 (2004).

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No. 31272-1-111
State v. York


      The adjudications are 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.

                                                 ~J
                                                  ~rsmo,J.
WE CONCUR:




      Siddoway, C.J. ­




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                                         31272-1-111

              FEARING, 1. (concurring) -    1 concur in the affirmation of Ethan York's

conviction, although I disagree that the same standard applied to an adult necessarily

applies to whether a minor has undergone a custodial interrogation. That question should

await another day.

       In United States v. Mendenhall, 446 U.S. 544, 100 S. Ct. 1870, 64 1. Ed. 2d 497

(1980), the United States Supreme Court established the test for what constitutes a

seizure, which test Washington courts employ today. See State v. Harrington, 167 Wn.2d

656,663,222 P.3d 92 (2009). A seizure occurs when, "in view of all of the

circumstances surrounding the incident, a reasonable person would have believed that he

was not free to leave." Mendenhall, 446 U.S. at 554; accord Harrington, 167 Wn.2d at

663; State v. Rankin, 151 Wn.2d 689,695,92 P.3d 202 (2004). Stated differently, a

police contact constitutes a seizure only if, under the totality of the circumstances, a

reasonable person would not have felt free to leave, "terminate the encounter, refuse to

answer the officer's question, or otherwise go about his business." State v. Thorn, 129

Wn.2d 347, 353, 917 P.2d 108, overruled on other grounds by State v. O'Neill, 148

Wn.2d 564, 62 P.3d 489 (2003). Whether a reasonable person would believe he was
No. 31272-1-III
State v. York- concurring


detained depends on the particular, objective facts surrounding the encounter. State v.

Ellwood, 52 Wn. App. 70, 73,757 P.2d 547 (1988).

       Since the courts use a reasonable person standard, the test of whether a person

considers himself or herself detained is the same no matter the citizen's race, sex, mental

acuity, and social background. Nevertheless, neither the United States Supreme Court

nor the Washington Supreme Court has analyzed whether the reasonable person standard

changes when the police contact is with a minor. In State v. Heritage, our high court

expressly declined "to decide whether the age of the suspect can ever be taken into

account for purposes of the Miranda custody requirement." 152 Wn.2d 210,219,95

P.3d 345 (2004).

      Psychological literature teaches that people feel compelled to comply with

authority figures, particularly law enforcement. This compulsion may be stronger with

youth. Because of limited experience and judgment, children cannot sign legally binding

contracts or bring lawsuits. RCW 26.28.015; Bellevue Sch. Dist. v. E.8., 148 Wn. App.

205,214, 199 P.3d 1010 (2009), reversed on other grounds, Bellevue Sch. Dist. v. E.8.,

171 Wn.2d 695, 257 P.3d 570 (2011). Washington law tolls the statute of limitations for

personal injury to minors, since they generally lack the understanding, knowledge and

resources to effectively assert their rights. DeYoung v. Providence Med. etr., 136 Wn.2d

136, 146,960 P.2d 919 (1998). The capacity ofa minor, including a 16-year-old boy, for




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No. 31272-1-III
State v. York- concurring


negligence or fault in torts is a question of fact based on the child's age, intelligence, and

maturity. Brown v. Derry, 10 Wn. App. 459, 463,518 P.2d 251 (1974).

       In his appellate brief, Ethan York observed that he recently turned 16 years old

when the officers spoke to him, "so his youthfulness and naivety must be taken into

account." Br. Appellant at 11. York provided no authority for this argument. This court

does not review errors alleged but not argued, briefed, or supported with citation to

authority. RAP 10.3(a)(6); Avellaneda v. State, 167 Wn. App. 474, 485 n.5, 273 P.3d

477 (2012).




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