                                                                     FILED 

                                                                  April 28, 2015 

                                                          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. 31736-6-111
                                                   )
                          Appellant,               )
                                                   )
                   v.                              )          PUBLISHED OPINION
                                                   )
LB.,[I]                                            )
                                                   )
                          Respondent.              )

          LA WRENCE-BERREY, J. -        Invocation of the right to remain silent must be

unequivocal. Here, while being held for custodial interrogation, 15-year-old LB. shook

his head in the negative after police asked him ifhe was willing to talk. Nevertheless,

police continued their questioning and LB. made inculpatory statements. The trial court

suppressed the statements, concluding that LB.' s shake of the head signaled an

unequivocal assertion of his right to remain silent. The State appeals, arguing that LB. 's

head shake was an ambiguous act subject to multiple interpretations. We disagree and


          1   For purposes of this opinion, we shall use initials for the respondent's name.
No. 31736-6-II1
State v. LB.


affinn the trial court.

                                           FACTS

       Police arrested 15-year-old LB. for residential burglary. Pasco Police Officer Ryan

Flanagan handcuffed LB. and took him to an interview room at the police station. During

the custodial interrogation, LB. made inculpatory statements. These statements are not

part of the record on appeal. The State charged LB. with one count of residential

burglary.

       The State moved to admit LB.'s statements. At the CrR 3.5 hearing, Police Officer

Ray Aparicio testified that he read LB. his Miranda 2 rights, including "special warnings

for juveniles." Report of Proceedings (RP) at 7. Officer Aparicio and Officer Flanagan

both testified that LB. did not express any confusion about the warnings and did not ask

questions. After the advice of Miranda rights, Officer Aparicio asked LB. ifhe went to

high school. LB. responded ''yes.'' RP at 7. The officer then asked LB. ifhe was willing

to talk with police about "some things, why we were []here." RP at 19. According to

Officer Aparicio, LB. did not respond verbally, but "shook his head side to side." RP at

8. When asked his understanding ofLB.'s response, Officer Aparicio responded, "[i]n

my experience, it means 'no,' but he didn't say 'no,' so I don't know what was going


       2   Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

                                              2

No. 31736-6-II1
State v. I.E.


through his mind." RP at 12. Officer Flanagan described LB.'s response as follows:

"[LB.] looked away as he slightly shook his head in a fashion that I guess would mean

'no,' to an extent." RP at 19-20. Officer Flanagan admitted during cross-examination

that he understood LB.'s head shake to mean "no." RP at 24.

       The officers left the interview room to discuss whether they should stop their

questioning. They decided that LB.'s head shaking did not sufficiently indicate his desire

for the interview to cease. After about five minutes, they returned to the interview room

and resumed questioning LB. During cross-examination, defense counsel questioned

Officer Aparicio as follows:

               Q. Okay, so when you come back in, did you resume questioning
       [LB.] about the incident that he had told you he didn't want to talk about?
               A. He did not tell me that he did not want to talk about it.
               Q. Well, I think we're getting a little cute here, but are, do you
       resume the questioning about the incident to which he shook his head side
       to side when asked if he wants to talk about it?
              A. Did I immediately resume?
               Q. Did anyone?
              A. Officer Flanagan talking [sic] to him about a different case.
               Q. SO you switched cases at that point?
              A. Yes, and Officer Flanagan informed him that when he walked in.

RP at l3.

       The officers did not reread LB. his Miranda rights and questioned LB. about a

different burglary. Eventually, the officers questioned LB. about the residential burglary


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No. 31736-6-111
State v. lB.


Officer Aparicio was investigating. LB. avoided eye contact during the questioning and

made inculpatory statements regarding the burglaries.

       At the CrR 3.5 hearing, the prosecutor argued that LB.'s head shaking "without

some sort of verbalization" was equivocal and that the break between questioning was not

long enough to require readvising of Miranda rights. RP at 29. Defense counsel

responded:

              He's a child, he's in police custody, he's already told them, I don't
       want to talk to you in a way that everybody understands. And instead of
       ceasing to talk to him, they leave the room and they come right back in, they
       switch officers and they switch cases. How is he supposed to know that this
       doesn't keep going until he starts talking?

RP at 32.

       The trial court suppressed LB.'s statements to the officers, concluding "[LBo's]

shaking his head was an unequivocal invocation of the right to remain silent." Clerk's

Papers (CP) at 18. In its oral ruling, the court stated "[i]n my mind, there could not be

any more unequivocal expression, other than a shaking of a head 'no.' No means no. A

defendant need not articulate in order to have an unequivocal invocation of his rights."

RP at 36. Following suppression ofLB.'s statements, the case was dismissed. The State

appeals the trial court's suppression ofLB.'s custodial statements.




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No. 31736-6-III
State v. l.B.


                                         ANALYSIS

       The sole issue before us is whether LB.'s shaking his head in the negative after

being asked if he was willing to talk to police was an unequivocal assertion of the right to

remain silent. The State construes LB.'s head shaking as ambiguous, arguing "[LB.'s] act

of turning away and shaking his head could have communicated many things," including

disbelief or discomfort. Br. of Appellant at 8. LB. counters that his conduct clearly

expressed his desire to stop communicating with police and, therefore, the court properly

suppressed his statements.

       Standard ofReview

       Whether LB. unequivocally invoked his right to remain silent is a mixed question

of law and fact that is ultimately subject to de novo review. In re Pers. Restraint of

Cross, 180 Wn.2d 664,680-81,327 P.3d 660 (2014). We review the trial court's findings

of fact for substantial evidence and its legal conclusions from those findings de novo.

State v. Broadaway, 133 Wn.2d 118, 131,942 P.2d 363 (1997). Because neither party

has assigned error to any of the trial court's findings, we treat the findings as verities on

appeal and confine our review to whether the trial court derived proper conclusions of

law from its findings. State v. Lorenz, 152 Wn.2d 22, 30, 93 P.3d 133 (2004).




                                               5

No. 31736-6-III
State v. I.B.


       Fifth Amendment

       The Fifth Amendment to the United States Constitution provides that "[n]o person

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

counteract the inherent compulsion of custodial interrogation, police must administer

Miranda warnings. Miranda, 384 U.S. at 479. Miranda requires that the defendant "be

warned prior to any questioning that he has the right to remain silent, that anything he

says can be used against him in a court of law, that he has the right to the presence of an

attorney, and that if he cannot afford an attorney one will be appointed for him prior to

any questioning ifhe so desires." Id. Once a suspect invokes his right to remain silent,

police may not continue the interrogation or make repeated efforts to wear down the

suspect. Id. at 473-74; State v. Piatnitsky, 180 Wn.2d 407,412,325 P.3d 167 (2014),

cert. denied, 135 S. Ct. 950 (2015).

       A suspect need not verbally invoke his right to remain silent. In fact, Miranda sets

a low bar for invocation of the right: "If the individual indicates in any manner, at any

time prior to or during questioning, that he wishes to remain silent, the interrogation must

cease." Miranda, 384 U.S. at 473-74 (emphasis added). However, suspects must

"unambiguously" express their desire to be silent. Pia tn itsky, 180 Wn.2d at 413; see also

State v. Hodges, 118 Wn. App. 668, 673, 77 P.3d 375 (2003) (invocation of the right to


                                             6

No. 31736-6-111
State v. IE.


remain silent must be "clear and unequivocal").

       The test as to whether a suspect's invocation of his right to remain silent was

unequivocal is an objective one, asking whether'" a reasonable police officer in the

circumstances would understand the statement'" to be an invocation of Miranda rights.

Piatnits/cy, 180 Wn.2d at 413 (quoting Davis v. United States, 512 U.S. 452, 459, 114 S.

Ct. 2350, 129 L. Ed. 2d 362 (1994)). In Piatnits/cy, our Supreme Court recently stated the

test as follows, "[t]o be unequivocal, an invocation of Miranda requires the expression of

an objective intent to cease communication with interrogating officers." Id. at 412

(footnote omitted). Once a suspect has clearly invoked the right to remain silent, police

questioning must immediately cease. Cross, 180 Wn.2d at 674; see Michigan v. Mosley,

423 U.S. 96,104,96 S. Ct. 321, 46 L. Ed. 2d 313 (1975) (invocation of right to remain

silent must be'" scrupulously honored'" by police and has the effect of'" cut[ting] off

questioning''') (quoting Miranda, 384 U.S. at 479,474).

       The analysis is context-specific. We do not examine the statement or conduct in

isolation; rather, we consider it in the context of the circumstances leading up to the

alleged invocation. Cross, 180 Wn.2d at 682-83. While "an accused'spostrequest

responses to further interrogation may not be used to cast retrospective doubt on the

clarity of the initial request itself," the defendant's invocation "may be characterized as


                                              7

No. 31736-6-III
State v. I.B.


ambiguous or equivocal as a result of events preceding the request or of nuances inherent

in the request itself." Smith v. Illinois, 469 U.S. 91, 99-100, 105 S. Ct. 490,83 L. Ed. 2d

488 (1984) (emphasis in original). This determination requires a case-by-case analysis.

Medina v. Singletary, 59 F.3d lO95, 1101 (lIth Cir. 1995) (quoting Christopher v.

Florida, 824 F.2d 836,840 (11th Cir. 1987)).

       Unequivocal Invocation ofRight to Remain Silent

       The question of whether shaking one's head side to side, without verbal

communication, sufficiently communicates an unequivocal desire to remain silent appears

to be an issue of first impression in this state. Division One of this court has addressed

whether failing to verbally articulate a desire to remain silent can invoke the right to

remain silent. Hodges, 118 Wn. App. at 672. There, the court held that "[s]ilence in the

face of repeated questioning over a period of time may constitute an invocation of the

right to remain silent." Id. at 673. Under Hodges, the request "need not be articulated so

long as it is clear and unequivocal." Id.

       Cases from other jurisdictions have addressed whether nonverbal conduct can be

unequivocal. In United States v. Gordon, 173 F.3d 761,766 (lOth Cir. 1999), for

example, the court held that "[n]on-verbal conduct, considered with other factors, can

constitute voluntary consent to search." See also United States v. Tutino, 883 F.2d 1125,


                                              8

No. 31736-6-III
State v. I.B.


1138 (2d Cir. 1989) (recognizing an affirmative nod of the head is evidence of an

unequivocal expression of understanding); People v. Martinez, 106 Cal. App. 3d 524,

534, 165 Cal. Rptr. 160 (1980) (right to remain silent invoked by any conduct that

'" reasonably appears inconsistent with a present willingness on the part of the suspect to

discuss his case freely and completely with police at that time''') (emphasis in original)

(internal quotation marks omitted) (quoting People v. Burton, 6 Cal. 3d 375, 382,491

P.2d 793, 99 Cal. Rptr. 1 (1971)).

       Courts in other jurisdictions have also addressed the specific issue before us and

concluded that a head shake may, under certain circumstances, sufficiently establish an

unequivocal assertion of the right to silence. In State v. Nash, 279 Ga. 646, 648, 619

S.E.2d 684 (2005), the Supreme Court of Georgia found that a suspect unambiguously

invoked his right to remain silent based on a videotape that showed the suspect shaking

his head'" in the negative'" in response to the question, '" so you don't want to talk about

it?'" (Emphasis in original.) In affirming the trial court's finding that the suspect had

invoked his right to silence, the court noted the "appellee shook his head in the negative

when asked ifhe wanted to talk about the victim's death and the questioning agent took

appellee's response to be a refusal to talk about the incident." Id.




                                              9

No. 31736-6-III
State v. l.B.


       Under similar facts, the Supreme Court of Massachusetts reached the same

conclusion in Commonwealth v. Clarke,461 Mass. 336, 960 N.E.2d 306 (2012). There,

after arresting the defendant and advising him of his Miranda rights, police asked him,

"'Youjust want to go home? So you don't want to speak?'" Id. at 338. The defendant

responded by shaking his head back and forth "in a negative fashion." Id. at 340. The

interrogating detective interpreted the defendant's head motion to mean that'" he didn't

want to speak.'" Id. at 338. Based on the defendant's youth (early 20s), negative head

shake, and overall reluctance to speak with the detective, the trial court concluded that the

defendant unambiguously invoked his right to remain silent. Id. at 340. The court

affirmed, finding the defendant's head shake expressed "affirmative conduct indicating

his desire to end police questioning." Id. at 343. In support of its decision, the court

noted that the detective's question was not investigatory, but directly concerned the right

to remain silent, and that the detective understood the defendant's head motion to mean

that he did not want to speak. Id.

       These cases support the trial court's conclusion that LB. unequivocally invoked his

right to remain silent. Nothing in the circumstances leading up to LB.'s invocation render

his head movement ambiguous. The court's unchallenged findings establish that Officer

Aparicio read LB. his Miranda rights and that LB. understood his rights. The court also


                                             10 

No. 31736-6-III
State v. I.B.


found that after being asked ifhe'was willing to speak with police, "[LB.] looked away

and slightly shook his head side to side. [LB.] did not speak." CP at 17. And similar to

Clarke and Nash, the court found that "[bloth officers testified they understand shaking

the head side to side to communicate the word 'no.'" CP at 17.

       Moreover, similar to Clarke, Officer Aparicio's question was not investigatory, but

directly concerned LB. 's right to remain silent. In response to the officer's direct

question-whether LB. wanted to talk about "why we were []here"-LB. shook his head

"no." RP at 19-20. This affirmative conduct unambiguously signaled LB.'s desire for the

questioning to cease. See Clarke, 461 Mass. at 343. At that point, police were required to

honor his request and immediately cease their questions. The trial court properly

suppressed LB.'s custodial statements.

       Affirm.



                                                    Lawrence-Berrey, J.

WE CONCUR:




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            C.J~ ,
                         I

Siddoway,


                                             11 

