                                                                    FILED
                                                                  JULY 6, 2017
                                                         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. 34208-5-III
                                             )
                    Respondent,              )
                                             )
             v.                              )         UNPUBLISHED OPINION
                                             )
DANIEL R. SAVINO,                            )
                                             )
                    Appellant.               )

      LAWRENCE-BERREY, A.CJ. -        The trial court held a CrR 3.5 hearing and

determined that Daniel R. Savino's statements to the arresting officer were admissible.

Following that determination, a jury found Mr. Savino guilty of possession of a controlled

substance-methamphetamine. On appeal, Mr. Savino argues the trial court erred

because his statements were made in response to police conduct that was likely to elicit an

incriminating response. We find no factual support for his argument and affirm.

                                         FACTS

      Deputy Daren Schaum was on patrol in Spokane Valley when he responded to a

malicious mischief call. Wendy Savino had called to report that her son, Daniel Savino,

had broken a window in her house. Once Deputy Schaum arrived, he spoke to Ms.
    No. 34208-5-111
    State v. Savino


    Savino and obtained probable cause to believe Mr. Savino had committed third degree

    malicious mischief-domestic violence. The deputy advised Ms. Savino that the nature

    of the suspected crime required him to arrest her son.

           Deputy Schaum then handcuffed and searched Mr. Savino incident to arrest. The

    deputy found a clear plastic cigarette wrapper and inside that wrapper was another

    wrapper that contained a crystalline substance. Deputy Schaum immediately recognized

    the substance as methamphetamine. At this time, and prior to receiving Miranda 1

    warnings, Mr. Savino said the pants were not his and then said, had he known that it was

    there, he would have gotten rid of it before the officer arrived. Mr. Savina's statement

    was not made in response to any police questioning and implied that he knew that the

    substance was an illegal substance.

           The State charged Mr. Savino with possession of a controlled substance-

    methamphetamine. The court held a CrR 3 .5 hearing to determine the admissibility of

    Mr. Savina's statements. After the above facts were presented, the trial court found that

    Mr. Savino made the statements while handcuffed and he was not free to leave, but that

    the statements were not made in response to any police questioning. From these findings,




           1
               Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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No. 34208-5-111
State v. Savino


the trial court concluded that although the statements were custodial, the statements were

not the product of police interrogation, were voluntary, and were therefore admissible.

       The case proceeded to a short jury trial. The jury found Mr. Savino guilty as

charged. Mr. Savino timely appealed.

                                       ANALYSIS

       Mr. Savino contends the trial court erred when it did not suppress his custodial

statements to Deputy Schaum.

       When reviewing the denial of a suppression motion, we determine "whether

substantial evidence supports the challenged findings of fact and whether the findings of

fact support the conclusions of law." State v. Garvin, 166 Wn.2d 242,249,207 P.3d

1266 (2009). Evidence is substantial when it is sufficient '"to persuade a fair-minded

person of the truth of the stated premise."' Id. (quoting State v. Reid, 98 Wn. App. 152,

156,988 P.2d 1038 (1999)). Unchallenged findings of fact are verities on appeal. State

v. Broadaway, 133 Wn.2d 118,131,942 P.2d 363 (1997). We review the trial court's

conclusions of law from a suppression hearing de novo. State v. Campbell, 166 Wn. App.

464,469,272 P.3d 859 (2011).

      The Fifth Amendment to the United States Constitution guarantees that "no person

... shall be compelled in any criminal case to be a witness against himself." "The right


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No. 34208-5-III
State v. Savino


against self-incrimination is liberally construed." State v. Easter, 130 Wn.2d 228, 236,

922 P.2d 1285 (1996).

       Miranda warnings were developed to protect a defendant's constitutional

right not to make incriminating confessions or admissions to police while in the coercive

environment of police custody. State v. Harris, 106 Wn.2d 784, 789, 725 P.2d 975

( 1986). Miranda warnings must be given when a suspect endures ( 1) custodial

(2) interrogation (3) by an agent of the State. State v. Sargent, 111 Wn.2d 641, 647, 762

P.2d 1127 (1988). Without Miranda warnings, a suspect's statements during custodial

interrogation are presumed involuntary and inadmissible. State v. Heritage, 152 Wn.2d

210, 214, 95 P.3d 345 (2004).

      Here, the parties agree that Mr. Savino was in custody for purposes of Miranda,

and the statements in question were made to an agent of the state. The question is

whether Mr. Savina's statements were made in response to police interrogation.

      Mr. Savino argues that Deputy Schaum's conduct was a form of interrogation

sufficient to necessitate Miranda warnings. Specifically, he argues:

      [T]he issue is whether the defendant would believe the state agent was
      seeking information that would be incriminating. A reasonable person who
      had been arrested, handcuffed and searched, then confronted with a package
      containing what appeared to be a controlled substance found in his pocket,
      would understand the deputy's conduct as an accusation, intended to elicit



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No. 34208-5-III
State v. Savino


       an incriminating response, whether that would be in the form of an
       admission or an explanation for the presence of the substance.

Appellant's Br. at 5 (citation omitted).

       Interrogation includes express questioning and its functional equivalent, which

means "' any words or actions on the part of the police ... that the police should know are

reasonably likely to elicit an incriminating response from the suspect.'" State v. Wilson,

144 Wn. App. 166, 184, 181 P.3d 887 (2008) (quoting Rhode Island v. Innis, 446 U.S.

291, 301, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980)).

       Mr. Savina's argument that the deputy "confronted" Mr. Savino with the

contraband is without a factual basis. The facts developed during the CrR 3 .5 hearing

merely establish that Deputy Schaum found the contraband in the second wrapper inside

the pants worn by Mr. Savino. Because of Mr. Savina's response, we infer that Mr.

Savino knew that Deputy Schaum found the contraband in the pants. But we cannot infer

any more from the record. Mr. Savino did not cross-examine Deputy Schaum during the

hearing, so there are no facts to support his theory on appeal that the deputy "confronted"

him with the contraband. 2


       2
        This argument was not made during the CrR 3.5 hearing. This could explain why
Mr. Savino did not cross-examine the deputy, and surely explains why the trial court did
not enter findings that directly address this argument on appeal. Because the State did not
argue that Mr. Savino waived this argument on appeal, we do not decide that issue.

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No. 34208-5-III
State v. Savino


      The uncontested finding that Mr. Savino' s response was not made in response to

police questioning is supported by the record. That finding supports the conclusions of

law that Mr. Savino's statements were not the product of police interrogation, were

voluntary, and therefore were admissible.

      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
WE CONCUR:




                                            Pennell, J.




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