IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                           )   No. 70564-4-1                      c=>
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                      Respondent,
                                           )   DIVISION ONE                      cr
                                                                                 en


                                           ) UNPUBLISHED OPINION                 •p-
                                                                                        • -z -rj j—

BENJAMIN CHAD STUM,                                                             2S>     ' Of-rv   <


                                                                                        .'5 CO
                      Appellant.           ) FILED: August 4, 2014              f\3




      Trickey, J. — Police questioning during a routine investigatory detention
does not rise to the level of custodial interrogation. Because Benjamin Stum's
statements to police occurred during a valid Terry stop, no Miranda warnings
were required, and the trial court properly denied his motion to suppress. Nor
has Stum demonstrated any prejudice resulting from the delayed entry of findings
of fact and conclusions of law following the CrR 3.5 hearing. We therefore affirm
his convictions for second degree burglary and first degree reckless burning.
                                     FACTS

      The relevant facts are essentially undisputed. On April 3, 2013, Everett
Police Detective Michael Atwood responded to a reported explosion at an
unoccupied residence on 41st Street.1 The explosion blew out the windows, sent




1Report of Proceedings (RP) (CrR 3.5 Hearing, June 14, 2013) at 7; 1 RP (June 17 &
18, 2013) at 90-91.
No. 70564-4-1 / 2

the front door across the street, damaged the walls, and caused a fire in the

basement.2

       Upon arriving, Atwood, an arson investigator and bomb technician, noticed
extensive damage to the house from some type of explosion.3 After inspecting
the house, Atwood interviewed several neighbors, who described a man they
saw leaving the house at about the time of the explosion.4 Atwood drove around
the neighborhood, but could not find the man. He then returned to the house and
resumed his investigation.5

       While Atwood spoke with one of the neighbors, he noticed a man
approaching on foot.6 The man, later identified as Benjamin Stum, was carrying
a sheathed hunting knife in one hand and an open beer can in the other.7
Atwood walked over to Stum, who matched the description of the man that
neighbors saw leaving the house around the time of the explosion.8 Stum's beer
can was identical to several empty cans that Atwood had seen inside the
damaged house.9




 2The city of Everett eventually demolished the house. 1 RP at 93-116.
 3 RP at 7.
 4 RP at 8.
 5 RP at 8.
 6 RP at 8-9.
 7 RP at 9.
 8 RP at 9.
 9RPat13.
No. 70564-4-1 / 3

      Atwood, who was not in uniform, identified himself and asked Stum to put

down the beer can and hand over the knife.10          Stum complied, and Atwood

placed the knife on the front seat of his nearby police van.11 Atwood told Stum
that he was investigating a suspicious fire in the house.12 He checked Stum's

identification card briefly and then returned the card.13

       Atwood informed Stum that it was illegal to carry an open beer can in

public and that his beer can matched several empty cans in the house.14 At
some point during the conversation, Atwood told Stum that it was "time to be
honest."15 Stum eventually became emotional and indicated that he had been
sleeping in the house for some time and that the explosion was an accident.16
       Because of the amount of damage in the house, Atwood was skeptical

about Stum's assertion and asked him to clarify it.17 When Stum confirmed that
he was in the house at the time of the explosion, Atwood stopped the
conversation and advised Stum of his Miranda rights.18 See Miranda v. Arizona,
384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The conversation had
lasted about five minutes.19



10 RP at 9.
11 RPat9.
12 RP at 14.
13 RP at 14.
14 RP at 13.
15 RP at 16.
16 RP at 17-18.
17 RP at 18.
18 RP at 19.
19 RP at 16.
No. 70564-4-1 / 4

       Stum indicated that he understood his rights and continued to talk with

Atwood.20 He also provided a written statement.21 Stum explained that he had

been living in the vacant house for several months.22       On the day of the
explosion, Stum was cutting and removing copper pipe downstairs in the house
to sell. At some point, he began to smell gas.23 Stum indicated that he had
caused the explosion when he used a lighter to test the quantity of gas or when
he took a break and lit a cigarette.24

       The State charged Stum with one count of second degree burglary and
one count of first degree reckless burning.25 Prior to trial, the defendant moved
to suppress his statements to Detective Atwood, arguing that they were made
during custodial interrogation without the benefit of Miranda warnings.26
Following a CrR 3.5 hearing, the trial court denied the motion, concluding that
because the encounterwas brief, non-coercive, and involved a valid investigatory

detention, Stum was not in custody for purposes of Miranda.27




20 RP at 10-11.
21 RP at 11.
221 RPat 123.
231 RPat 122.
241 RPat 122-23.
 25 Clerk's Papers (CP) at 81.
 26 RP at 26-29.
 27 RP at 30-31.
No. 70564-4-1 / 5

      The jury found Stum guilty as charged,28 and the court sentenced him

under a first-time offender waiver to 90 days of incarceration and one year of

community custody.29

                                       ANALYSIS

       Stum contends that the trial court erred in concluding that he was not in

custody during Detective Atwood's initial questioning and that his statements
were therefore admissible without the benefit of Miranda warnings. He argues

that the circumstances of the encounter, including Atwood's explanation of the

illegality of the open beer container, the confiscation of his knife, and the
detective's suggestions that he might be involved in the explosion, exceeded the
scope of a valid investigatory detention and were sufficiently coercive to
constitute custodial interrogation for Miranda.

       We review the trial court's decision following a CrR 3.5 hearing to

determine whether substantial evidence supports the findings offact and whether
those findings, in turn, support the conclusions of law. State v. Broadawav, 133
Wn.2d 118, 130-31, 942 P.2d 363 (1997). Unchallenged findings of fact are
verities on appeal. State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994). The
trial court's determination as to whether questioning constituted custodial
interrogation is a conclusion of law that we review de novo. State v. Lorenz, 152
Wn.2d 22, 36, 93 P.3d 133 (2004).


28 CP at 34-35.
29 CP at 18-27.
No. 70564-4-1 / 6

      Miranda warnings are required prior to the initiation of "custodial

interrogation." State v. Heritage, 152 Wn.2d 210, 217, 95 P.3d 345 (2004). The

test for determining whether a defendant is in custody for purposes of Miranda is
an objective one: "whether a reasonable person in the individual's position would
believe he or she was in police custody to a degree associated with formal

arrest." Lorenz, 152 Wn.2d at 37 (citing Berkemer v. McCartv, 468 U.S. 420,

440, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984)).

       Consistent with the Fourth Amendment and article I, section 7 of the

Washington Constitution, a police officer may conduct a brief investigatory
detention if the officer has a reasonable and articulable suspicion that an

individual is involved in criminal activity. State v. Sieler, 95 Wn.2d 43, 46, 621
P.2d 1272 (1980); see also Terrv v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L
Ed. 2d 889 (1968). During the course of a Terrv stop, the officer may ask a
moderate number of questions "to confirm or dispel the officer's suspicions."
Heritage, 152 Wn.2d at 218. Because Terrv stops generally are brief and occur
in public, "they are substantially less police dominated than the police
interrogations contemplated by Miranda." Heritage, 152 Wn.2d at 218 (internal
quotation marks omitted) (quoting Berkemer, 468 U.S. at 439). Consequently, a
routine investigatory detention is not custodial for purposes of Miranda. Heritage,
 152Wn.2dat218.

        Here, when Detective Atwood approached Stum, he knew that Stum
 matched the description of a man seen leaving the house at the time of the
                                         6
No. 70564-4-1 / 7

explosion and that Stum was carrying a beer can identical to those that he had
seen inside the house.     Under the circumstances, Atwood had specific and

articulable facts justifying a brief investigatory detention to determine whether

Stum might have been involved with the explosion.

      Atwood did not tell Stum he could not leave, place him in handcuffs, or

otherwise restrain him or restrict his movements. The questioning occurred in

public and involved only Atwood and Stum. Although Atwood removed Stum's
hunting knife before talking to him, an officer may temporarily secure a suspect's
weapon without exceeding the permissible scope of an investigatory detention.
See State v. Day, 161 Wn.2d 889, 895, 168 P.3d 1265 (2007). Finally, the
questioning was brief, lasting no longer than five minutes. Once Stum clarified
that he was in the house at the time of the explosion, Atwood stopped the
questioning and advised Stum of his Miranda rights. Contrary to Stum's
assertions, the questioning did not exceed the valid scope of a Terry stop. Under
the circumstances, a reasonable person would not have believed that his
freedom was curtailed to a degree analogous to a formal arrest. The trial court
correctly concluded that the encounter did not constitute a custodial interrogation
 requiring Miranda warnings
        Stum's arguments rest primarily on the claim that a reasonable person in
 his position would not have felt free to leave. But when a police officer questions
 a suspect during a valid investigatory detention, the fact that the suspect is not
 necessarily free to leave does not elevate the encounter into a custodial
                                          7
No. 70564-4-1 / 8

interrogation. See Berkemer. 468 U.S. at 439-40 (Fourth Amendment seizure of
suspect for routine Terrv stop or comparable traffic stop does not rise to the level
of "custody" for purposes of Miranda): Heritage, 152 Wn.2d at 218; State v.
Walton, 67 Wn. App. 127, 130, 834 P.2d 624 (1992).

       In his opening brief, Stum assigned error to the trial court's failure to enter
written findings of fact and conclusions of law following its denial of his motion to
suppress.30 See CrR 3.5.         The trial court promptly entered findings and
conclusions after the State learned of the error.

       We will not reverse a conviction for the late entry of findings and
conclusions unless the delay prejudiced the defendant or the findings and
conclusions were tailored to address the issues raised in the defendant's
appellate brief. State v. Cannon, 130 Wn.2d 313, 329-30, 922 P.2d 1293 (1996).
        In his reply brief, Stum has assigned error to two minor findings related to
the open beer container that he was carrying. Those findings are immaterial to
our analysis of the custody issue. The relevant written findings and conclusions
accurately reflect the evidence presented to the trial court, the parties'
 arguments, and the trial court's oral decision. Stum has not alleged or
 demonstrated that the written findings and conclusions are inadequate to permit
 appellate review or that the delayed entry was in any way prejudicial. Reversal is
 therefore not warranted. See State v. Brockob, 159 Wn.2d 311, 344, 150 P.3d
 59 (2006); Cannon, 130 Wn.2d at 330.

 30 Br. of Appellant at 1, 17.

                                           8
No. 70564-4-1 / 9

      Affirmed.




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WE CONCUR:




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