                                                                        FILED
                                                                     AUGUST 11, 2016
                                                                In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division Ill




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

STATE OF WASHINGTON,                           )
                                               )        No. 32443-5-111
                       Respondent,             )
                                               )
       V.                                      )
                                               )
CURTIS DONN LIEN,                              )        UNPUBLISHED OPINION
                                               )
                       Defendant.              )

       SIDDOWAY, J. -Curtis Lien appeals the trial court's denial of his motion to

suppress his statement admitting ownership of a drug-containing lockbox, made before he

was advised of his Miranda 1 rights. The trial court's findings that are supported by the

record do not support its conclusion that the deputy questioning Mr. Lien was not

engaged in a custodial interrogation. We therefore reverse his three convictions for

possession of a controlled substance without prejudice and remand with directions to

grant his motion to suppress the admission.



       1
           Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
No. 32443-5-III
State v. Lien


                     FACTS AND PROCEDURAL BACKGROUND

       A pickup truck driven by Curtis Lien was stopped by deputy sheriffs after it was

observed parked on the wrong side of the road in an area plagued by vandalism, illegal

dumping, and theft, and the deputy who observed the truck determined that its registered

owner had a suspended driver's license and an outstanding felony warrant.

       Mr. Lien was not the truck's registered owner. But he proved to have an

outstanding warrant of his own (a department of corrections hold). And he, too, lacked a

valid driver's license. Deputy Thomas Edelbrock told Mr. Lien he was under arrest on

the warrant, but that he would only write him a citation for driving with a suspended

license. He handcuffed Mr. Lien.

       Mr. Lien had a single passenger who also did not have a driver's license. Efforts

were made to telephone the registered owner of the truck to arrange for it to be picked up,

but they were unsuccessful. Mr. Lien and his passenger were told the truck would be

inventoried and impounded. The passenger was given her purse and, at Mr. Lien's

request, she was allowed to take his leather jacket. Deputy Edelbrock then began

inventorying other items in the truck.

       Deputy Edelbrock saw what proved to be an old, warped lockbox under the

driver's seat of the truck. He described it as "look[ing] for all purposes like a book."

Report of Proceedings (RP) at 23. He pulled it out from under the seat, opened its cover

and saw that underneath the cover was a locked box. He could see inside the box through

                                              2
No. 32443-5-111
State v. Lien


a comer of its locked lid that he described as "pried or sprung" and that "[didn't] fit

well." RP at 24. He saw a clear bag containing a white powder and part of a syringe. He

asked Mr. Lien who the lockbox belonged to and Mr. Lien stated it belonged to him. Mr.

Lien refused the deputy's request to open the box.

       The deputy retained the lockbox and after a search warrant was obtained, it was

opened. Its contents included drugs that tested positive as controlled substances. Mr.

Lien was charged with one count of possession of a controlled substance

(methamphetamine) with intent to deliver and three counts of possession of a controlled

substance (cocaine, hydrocodone, and amphetamine). Well before trial, Mr. Lien moved,

unsuccessfully, to suppress evidence of the box and its contents.

       Just before trial, the court conducted a CrR 3.5 hearing on the State's intention to

offer Mr. Lien's statements made to Deputy Edelbrock. The deputy testified to events

leading up to his pulling the lockbox out from under the driver's seat of the truck and

provided the following testimony relevant to the issue on appeal:

       A      Holding it up as if you're going to read it, it turns out it is a lock box,
              but it's an old, beat up thing, and the comers of it are pried or
              sprung. It doesn't fit well.
       Q      When you say it's a lock box, Deputy, was there a place for a key or
              was it just a metal container?
       A      No, there's as I recall a key lock if you're holding it like a book, in
              the middle of the right edge.
       Q      And what did you do with that?
       A      Holding it up in a book reading position at the bottom with the
              shift-I could see a bag and a syringe underneath the hinge-the
              side edge of the door.

                                               3
No. 32443-5-111
State v. Lien


      Q      Without opening it?
      A      I can't open it. It's locked. No.
      Q      So how did you see that? Could you describe why-
      A      If the book was-if the box was sitting flat like this, whether somebody
             closed and locked it with those bags in it or if the metal is slightly
             sprung, it's an older lock box. It's not in mint condition by any means.
             It's down by the right comer as you hold it like a book. ...

      Q      Okay. Then after you discovered the nature of the object of this box,
             what did you do?
      A      After I saw a portion of a syringe in the back with the powder in it, I
             just closed it.
      Q      Did you make any decision as to how you were going to proceed
             with the disposition of that item?
      A      I really didn't know exactly what to do. I didn't say anything to
             anybody there about what was-about the box.
      Q      You mean about the character of what you had seen?
      A      This is correct.
      Q      Okay. So what did you do with the box at that point?
      A      I just held on to it. I ended up asking Curtis whose it was, but I
             didn't do-had said anything to anybody about what I had seen.
      Q      So you asked him whose it was; is that correct?
      A      Let me see exactly what I said. I asked him whose it was, yes.
      Q      And what did he say?
      A      He said it was his. I then asked him if I could see inside it. He said
             no, it was his. I couldn't open it.
      Q      So what did you do?
      A      I just kept the box.
      Q      Okay. Subsequently, what happened to the box eventually? Did you
             put it back in the vehicle or did you take it with you?
      A      I still didn't know exactly what was inside it. I put it on property as
             evidence. I didn't know to be tested we would need a search warrant
             to get it open.

RP at 24-27 (emphasis added).

      At the conclusion of the hearing, the court orally ruled that Mr. Lien's statements

were admissible. Findings of fact and conclusions of law were prepared and presented

                                            4
No. 32443-5-111
State v. Lien


approximately two months later. They included a conclusion that at the time of Mr.

Lien's incriminating statement, "Deputy Edelbrock was not conducting an interrogation

but was conducting an inventory which turned into a brief exchange with Mr. Lien, not

related to or incident to a criminal investigation." Clerk's Papers (CP) at 201.

       At the conclusion of trial, the jury returned guilty verdicts on the three possession

charges but was deadlocked on the possession with intent to deliver charge. Before

sentencing, Mr. Lien pleaded guilty to possession with intent to deliver

methamphetamine, in exchange for which the State asked the court to dismiss two other

unrelated outstanding charges. The court imposed a 60+ month sentence on the

possession with intent to deliver charge and concurrent sentences of 12+ months on each

possession charge. Mr. Lien appeals.

                                        ANALYSIS

       The only issue on appeal is whether the court erred in denying the motion to

suppress evidence of Mr. Lien's statement to Deputy Edelbrock. Mr. Lien contends his

statement was made in the course of a custodial interrogation and should have been

suppressed because he was not given full Miranda warnings.

       Before turning to that issue, we address two matters that are undisputed. First, Mr.

Lien challenges the trial court's finding of fact 19, which he argues implies, given its

placement in the trial court's remaining findings, that Deputy Edelbrock asked him about

ownership of the box before, not after, seeing that it contained what appeared to be drugs

                                              5
No. 32443-5-111
State v. Lien


and related paraphernalia. The State does not dispute Mr. Lien's contention that the

deputy saw the contents before asking the question. To the extent the court's findings

can be read as stating that the deputy asked about ownership of the box before seeing its

suspicious contents, they are not supported by evidence. With the correct sequence of

events in mind, we review the trial court's conclusions of law de novo. In re Pers.

Restraint a/Cross, 180 Wn.2d 664,681,327 P.3d 660 (2014), cert. denied, Cross v.

Wash., 135 S. Ct. 1701, (2015).

       Second, the State underscores the fact that by entering a guilty plea to the

possession with intent to deliver charge, Mr. Lien waived or rendered irrelevant all

constitutional violations that occurred before that plea, except any related to the

circumstances of the plea or the State's ability to prosecute regardless of factual guilt.

Br. ofResp't at 11 (citing State v. Brandenburg, 153 Wn. App. 944, 947-48, 223 P.3d

1259 (2009)). Mr. Lien does not appear to disagree; his opening brief urges us "to

reverse his convictions for possession of a controlled substance and dismiss the charges."

Br. of Appellant at 11. We read his brief as challenging only the three possession

convictions.

               Was Mr. Lien's admission of ownership elicited in a custodial
                                     interrogation?

       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, nor be


                                              6
No. 32443-5-111
State v. Lien


deprived of life, liberty, or property without due process oflaw." U.S. CONST. amend. V.

Article 1, section 9 of the Washington State Constitution similarly protects a defendant's

privilege against self-incrimination. WASH. CONST. art. I, § 9 ("No person shall be

compelled in any criminal case to give evidence against himself."). "In Miranda, the

Supreme Court established a conclusive presumption that all confessions or admissions

made during a custodial interrogation are compelled in violation of the Fifth

Amendment's privilege against self-incrimination." Cross, 180 Wn.2d at 682 (citation·

omitted). The presumption is overcome only by a showing that law enforcement officials

informed the suspect of his or her right to remain silent and right to an attorney and that

the suspect knowingly and intelligently waived those rights. Id. It is undisputed that the

State cannot make that showing here.

       The right to Miranda warnings attaches only when a custodial interrogation

begins, however. State v. Templeton, 148 Wn.2d 193,208, 59 P.3d 632 (2002). The

State disputes that Deputy Edelbrock's question to Mr. Lien took place in a custodial

interrogation. And it argues that since Mr. Lien had been placed under arrest on the DOC

warrant before the question was asked, "custodial" should mean more than just the

normal restrictions on freedom incident to incarceration. Br. ofResp't at 14 (citing State

v. Warner, 125 Wn.2d 876, 889 P.2d 479 (1995)).

       The State points out that Mr. Lien was not in custody for a controlled substance

violation at the time he was asked about ownership of the lockbox. But it is well settled

                                              7
No. 32443-5-III
State v. Lien


that "nothing in the Miranda opinion ... calls for a curtailment of the warnings to be

given persons under interrogation by officers based on the reason why the person is in

custody." Mathis v. United States, 391 U.S. 1, 4-5, 88 S. Ct. 1503, 20 L. Ed. 2d 381

( 1968) (overturning tax fraud convictions resulting from incriminating statements made

when a defendant was interviewed by a revenue agent while serving time on unrelated

charges); accord State v. LaRue, 19 Wn. App. 841,845, 578 P.2d 66 (1978).

Nonetheless, cases like Warner hold that where an offender is incarcerated, the fact of

incarceration is not enough to make every question asked by state agents "custodial" for

Miranda purposes.

       In analyzing the State's argument that this case presents a "custody within

custody" situation that requires more than the fact of his arrest, we find most helpful the

Supreme Court's 2012 decision in Howes v. Fields,_ U.S._, 132 S. Ct. 1181, 182 L.

Ed. 2d 17. In that case, the Court reversed a decision of the Sixth Circuit Court of

Appeals holding that a prisoner is always in custody within the meaning of Miranda ifhe

or she is taken aside and questioned about events that occurred outside the prison walls.

The Supreme Court held, instead, that when a prisoner is questioned he or she may or

may not be in custody: the determination of custody should focus on all of the features of

the interrogation. 132 S. Ct. at 1192. And it depends on whether incarceration exerts the

coercive pressure that Miranda was designed to guard against. Id. at 1188 (citing

Maryland v. Shatzer, 559 U.S. 98, 112, 130 S. Ct. 1213, 175 L. Ed. 2d 1045 (2010)).

                                             8
No. 32443-5-III
State v. Lien


"Miranda is to be enforced 'only in those types of situations in which the concerns that

powered the decision are implicated.'" Shatzer, 559 U.S. at 112 (quoting Berke mer v.

McCarty, 468 U.S. 420,437, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984)).

       Howes explained that one "strong ground" for concluding that imprisonment alone

is not enough to create a custodial situation is that "questioning a person who is already

serving a prison term does not generally involve the shock that very often accompanies

arrest." 13 2 S. Ct. at 1190. "' Interrogated suspects who have previously been convicted

of crime live in prison."' Id. at 1191 (emphasis added) (quoting Shatzer, 559 U.S. at

113). So "the ordinary restrictions of prison life ... are expected and familiar." Id. Mr.

Lien, by contrast, was questioned shortly after having been arrested and handcuffed.

These were not circumstances that had become expected and familiar to him.

       It is unsurprising, then, that the State evidently could not find, nor could we find,

any case that treats interrogation of someone who has just been arrested and handcuffed

as noncustodial as long as the questions do not concern the crime of arrest. An

incarcerated prisoner's restricted living circumstances become expected, familiar and

thereby noncoercive, but the stress associated with arrest exists irrespective of the subject

matter of questioning. Because an offender who has just been placed under arrest is in

the coercive circumstances that were the concern of Miranda, we find Warner and other

cases involving the questioning of prisoners to be inapposite. Having just been formally

arrested, Mr. Lien was in custody at the time he was questioned and the safeguards

                                              9
No. 32443-5-III
State v. Lien


prescribed by Miranda applied. E.g., State v. Daniels, 160 Wn.2d 256, 266, 156 P.3d

905 (2007).

       The State also argues that the question to Mr. Lien was not interrogation. In

Miranda, the Supreme Court stated that "[b ]y custodial interrogation, we mean

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." 384 U.S.

at 444 (emphasis added). In Rhode Island v. Innis, the Court clarified that interrogation

also includes the "functional equivalent" of express questioning. 446 U.S. 291, 301, 100

S. Ct. 1682, 64 L. Ed. 2d 297 (1980). Since statements that are freely and voluntarily

given are not inadmissible, it held that "'interrogation'" under Miranda includes "any

words or actions ... that the police should know are reasonably likely to elicit an

incriminating response from the suspect"-thereby excluding words or actions that

unexpectedly elicit a volunteered response. Id. (footnote omitted).

       After seeing what he believed to be drugs in the lockbox, Deputy Edelbrock asked

Mr. Lien, explicitly, who the box belonged to. As observed by our Supreme Court in

State v. Sargent, 111 Wn.2d 641, 650, 762 P.2d 1127 (1988), "[t]his is not the functional

equivalent of interrogation-it is interrogation."

       In concluding that the question was not interrogation because the deputy was

conducting an inventory, not a criminal investigation, the trial court appears to have been

applying the routine booking question exception to the inventory process. But when

                                            10
No. 32443-5-111
State v. Lien


determining whether the routine booking question exception applies, the court applies an

objective test to whether the questioner should have known that the question was

reasonably likely to elicit an incriminating response. State v. Denney, 152 Wn. App. 665,

671,218 P.3d 633 (2009), abrogated in part by Cross, 152 Wn. App. 665 (2014). An

"' incriminating response'" is "any response-whether inculpatory or exculpatory-that

the prosecution may seek to introduce at trial." Innis, 446 U.S. at 301 n.5. In applying

the test, "[t]he relationship between the question asked and the crime suspected is highly

relevant." Denney, 152 Wn. App at 671-72 (citing United States v. Booth, 669 F.2d

1231, 1238 (9th Cir. 1981)). Asking Mr. Lien who owned the lockbox was not necessary

to an inventory and it is clear from the deputy's testimony about his own unease on

seeing the box's contents that he believed he was looking at a controlled substance

crime. 2 The trial court's findings supported by the record do not support a conclusion

that the deputy thought this was a routine question unlikely to elicit an incriminating

response.



       2
          The affidavit later prepared in support of the application for a search warrant
stated, in part,
        The lock box was locked, but appeared to have been pried in the past.
        [Deputy] Edelbrock could see certain items inside the box without
        manipulating the box. [Deputy] Edelbrock could see a hypodermic syringe
        and some plastic baggies with white substance. From [Deputy] Edelbrock's
        training and experience, he believed those items to be drugs and/or drug
        paraphernalia, in particular either cocaine or methamphetamine.
CP at 48-49.

                                             11
No. 32443-5-III
State v. Lien


       The State finally argues that questions do not become interrogation until probable

cause is present, relying on State v. Creach, 77 Wn.2d 194, 461 P .2d 329 (1969) and

State v. Hilliard, 89 Wn.2d 430, 573 P.2d 22 (1977). Its reliance is misplaced. Both

cases address when, prior to arrest, interrogation becomes custodial. Neither concerns

whether questions are interrogation. Creach held that the brief police questioning of an

individual on a sidewalk in the course of the routine investigation involved in that case

was not custodial, but held that "once an investigating officer has probable cause to

believe that the person confronted has committed an offense .... interrogation becomes

custodial, and the suspect must be warned of his rights." 77 Wn.2d at 198 (emphasis

added). Hilliard similarly held that "[m]ere suspicion, before the facts are reasonably

developed, is not enough to tum the questioning into a custodial interrogation." 89

Wn.2d at 436 (emphasis added). Neither case suggests that posing questions to an

individual is not "interrogation."

       The trial court's findings do not support its conclusion that Mr. Lien's admission

to owning the lockbox did not take place in a custodial interrogation. We reverse the

three possession convictions without prejudice and remand with directions to grant Mr.

Lien's motion to suppress his admission.

       A majority of the panel has determined this opinion will not be printed in the




                                             12
No. 32443-5-111
State v. Lien


Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:




                                                Pennell, J.




                                           13
