                                                                           FILED
                                                                         MAY 12, 2020
                                                                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. 36542-5-III
                                              )
                     Respondent,              )
                                              )
      v.                                      )         UNPUBLISHED OPINION
                                              )
KENNETH LEROY STEPHENS,                       )
                                              )
                     Appellant.               )

       FEARING, J. — This appeal asks when is an arrest an arrest? A law enforcement

officer handcuffed appellant Kenneth Stephens and advised him of his Miranda rights,

then questioned Stephens before informing him he was under arrest. Stephens contends

the officer arrested him before questioning him and that a statement confessing to theft

must be suppressed in addition to methamphetamine found during a search incident to

arrest. The State argues that the arrest occurred only after the officer announced the

arrest. We agree with Stephens and reverse his conviction for possession of a controlled

substance.
No. 36542-5-III
State v. Stephens


                                          FACTS

       An employee at Stan’s Merry Mart, in Wenatchee, called 911 after seeing a man

in the store who she believed stole video equipment earlier in the week. The man was

later discovered to be Kenneth Stephens. The employee described the man to 911 as

white, in his mid-thirties, and wearing a black baseball cap and a black and gray jacket.

The employee stated the man had not stolen anything that day, but video footage showed

him stealing cameras on previous days. According to the employee, the store wanted to

press charges for the previous thefts. The employee further advised 911 that the suspect

left the store and was riding a bike heading south on Mission Street.

       Wenatchee Police Officer Albert Gonzalez responded to the Stan’s Merry Mart

911 call and went to Mission Street. Officer Gonzalez located Kenneth Stephens, who

rode a bike south on Mission Street and matched the caller’s description of the alleged

thief’s clothing, race, and sex. Stephens, however, did not match the age described by the

employee as he was in his late-fifties. Gonzalez recognized Stephens due to previous

contacts.

       Officer Albert Gonzalez informed Kenneth Stephens that 911 received a call about

him from Stan’s Merry Mart. Stephens dismounted his bicycle. He denied any




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No. 36542-5-III
State v. Stephens


involvement in a theft. Officer Gonzalez told Stephens he could not leave. Gonzalez

then handcuffed Stephens and read the Miranda warnings from a card.

       After Mirandizing and cuffing Kenneth Stephens, Officer Albert Gonzalez began

questioning. Stephens continued to deny any knowledge about stolen cameras. Gonzalez

told Stephens that witnesses could identify him in video footage. Stephens then admitted

to stealing the cameras and selling them for $50. Stephens told Officer Gonzalez that he

could retrieve the cameras if allowed to go free. Angela Thresher, an employee of Stan’s

Merry Mart, arrived at the scene and positively identified Stephens as the suspect.

Gonzalez then told Stephens that he was under arrest. Gonzalez searched Stephen’s

person and located two bags with a crystal substance and a pipe coated in a crystal

residue. At the Washington State Patrol Crime Laboratory, the substance on the pipe

tested positive for methamphetamine.

                                       PROCEDURE

       The City of Wenatchee initially charged Kenneth Stephens, in Chelan County

District Court, with third degree theft. Later, the city dismissed its charge and the State of

Washington filed, in superior court, an information charging Stephens with first degree

trafficking in stolen property and unlawful possession of a controlled substance,

methamphetamine.


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No. 36542-5-III
State v. Stephens


       Kenneth Stephens moved to suppress all evidence obtained as a result of his

detainment by Officer Albert Gonzalez. Stephens contended that Officer Gonzalez

placed him under custodial arrest when he first handcuffed him and that Gonzalez lacked

probable cause to arrest him. Kenneth Stephens also filed a motion to dismiss the charges

due to a delay in the State’s filing charges, during which delay law enforcement allegedly

destroyed evidence.

       The trial court denied the motion to suppress evidence. The court entered findings

of fact, two of which Kenneth Stephens challenges on appeal:

              2.5 Officer Gonzalez detained Defendant to investigate the
       reported theft of the video cameras. Officer Gonzalez advised Defendant of
       his Constitutional (Miranda) rights from a printed card, and Defendant
       stated he understood and was willing to speak.
              2.6 Officer Gonzalez advised Defendant that they were
       investigating a theft of some video cameras from Stan’s and that Defendant
       had been positively identified by employees; Defendant admitted to stealing
       the items and selling them. At this point, Defendant was informed he was
       under arrest, arrested, and searched incident to arrest (upon which meth
       was found on Defendant’s person).

Clerk’s Papers (CP) at 173 (emphasis added) (alteration in original). The trial court

concluded, based on the call from the Stan’s Merry Mart employee and Officer

Gonzalez’s reasonable conclusion that Kenneth Stephens matched the description of the

person in the store, that Gonzalez had reasonable suspicion to conduct an investigatory




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No. 36542-5-III
State v. Stephens


stop of Stephens. The trial court also denied the motion to dismiss based on an alleged

violation of speedy trial rights.

       The trial jury convicted Kenneth Stephens of unlawful possession of a controlled

substance, methamphetamine. The jury found Stephens not guilty of trafficking in stolen

property in the first degree.

       The sentencing court denied Kenneth Stephens’s request for a residential drug

offender sentencing alternative. The court also denied Stephens’s wish for credit for time

already served. The sentencing court imposed $500 in legal financial obligations with a

stipulation that the obligations bear interest from the date of the judgment.

                                    LAW AND ANALYSIS

       Kenneth Stephens assigns six errors to trial court proceedings. First, the trial court

erred when refusing to suppress the evidence of the methamphetamine found on his

person because Officer Albert Gonzalez arrested him before questioning him and

Gonzalez lacked probable cause to arrest him. Second, the trial court erred when refusing

to dismiss charges based on the purported infringement of Stephens’s speedy trial rights.

Third, insufficient evidence supported the conviction for possession of a controlled

substance. Fourth, the sentencing court improperly denied Stephens a residential drug

offender sentencing alternative. Fifth, the sentencing court erroneously failed to give


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No. 36542-5-III
State v. Stephens


Stephens credit for time already served in jail. Sixth, the sentencing court mistakenly

imposed interest on the legal financial obligations assessed. Because we accept Kenneth

Stephens’s first assignment of error, we do not address his other assignments.

       This appeal presents unique circumstances. Almost immediately after first

confronting Kenneth Stephens, Officer Albert Gonzalez placed Stephens in handcuffs and

read him the Miranda rights. Thereafter, Gonzalez asked Stephens about his potential

involvement in the theft of cameras from Stan’s Merry Mart. After Stephens confessed

guilt, Gonzalez told Stephens that he was under arrest. Officer Gonzalez conducted a

search incident to arrest and found methamphetamine on Stephens’s person. Typically,

the law enforcement officer approaches a suspect and asks the suspect about involvement

in a crime before handcuffing him and advising him of constitutional rights. Typically,

the officer advises the accused of his Miranda rights only after informing the accused he

is under arrest.

       The obverse order of events attending to the intercourse between Officer Albert

Gonzalez and Kenneth Stephens requires us to decide whether Gonzalez arrested

Stephens when handcuffing Stephens and reading Stephens the Miranda warnings or later

when announcing the arrest. If we rule that Gonzalez only arrested Stephens after the

confession and upon announcing the arrest, then we would decide that the handcuffing


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No. 36542-5-III
State v. Stephens


constituted an investigatory stop, for which Gonzalez needed only a reasonable

articulable suspicion that Stephens had engaged in criminal activity. State v. Acrey,

148 Wn.2d 738, 747, 64 P.3d 594 (2003). If we conclude that Officer Gonzalez arrested

Stephens when handcuffing him, we would rule that Gonzalez needed probable cause

before restraining and questioning him. State v. Flores, 186 Wn.2d 506, 520, 379 P.3d

104 (2016). The latter rule presents a higher standard for the State to fulfill.

       We encounter limited difficulty in discerning the law of arrest because of loose

terminology used in court opinions. The law uses many and often overlapping terms for

various interactions between a law enforcement officer and a suspect or for that matter

any citizen regardless of suspect designation. The words and expressions include “social

contact,” “stop,” “investigative stop,” “brief investigative stop,” “stop and frisk,” “Terry

stop,” “Terry investigative stop,” “detainment” “detention,” “limited detention,”

“involuntary detention,” “investigatory detention,” “brief, investigative detention,”

“seizure,” “present confinement,” “restraint,” “physical restraint,” “physical intrusion,”

“arrest,” “custody,” “custodial arrest,” “full custodial arrest,” and “formal arrest.” State v.

Mecham, 186 Wn.2d 128, 138, 380 P.3d 414 (2016); State v. Flores, 186 Wn.2d 506, 512

(2016); State v. Patton, 167 Wn.2d 379, 387, 219 P.3d 651 (2009); State v. Reichenbach,

153 Wn.2d 126, 135, 101 P.3d 80 (2004); State v. Lorenz, 152 Wn.2d 22, 36-37, 93 P.3d


                                              7
No. 36542-5-III
State v. Stephens


133 (2004); State v. Acrey, 148 Wn.2d at 746 (2003); State v. Kennedy, 107 Wn.2d 1, 4,

726 P.2d 445 (1986); State v. Rupe, 101 Wn.2d 664, 683-84, 683 P.2d 571 (1984); State

v. Marcum, 149 Wn. App. 894, 902-03, 910, 205 P.3d 969 (2009); State v. Salinas, 169

Wn. App. 210, 217, 279 P.3d 917 (2012); State v. Gering, 146 Wn. App. 564, 566-67,

192 P.3d 935 (2008); State v. Radka, 120 Wn. App. 43, 48-50, 83 P.3d 1038 (2004). For

purposes of our analysis, we label any contact between the officer and a citizen that

restrains the citizen’s movement or seeks to restrain the citizen’s movement a “seizure,”

since the Fourth Amendment to the United States Constitution employs the word. In turn,

we pigeonhole an officer’s seizure of a suspect such that the seizure requires probable

cause as an “arrest.” Finally, we categorize an officer’s temporary seizure of a suspect

such that the seizure demands only a reasonable articulable suspicion as an “investigatory

stop.” We explore below the parameters of the distinction between an investigatory stop

and an arrest, although one court impliedly suggested placing the plow before the mule by

focusing on whether we believe the officer should have had probable cause before

restraining and questioning the suspect and then deciding whether the suspect was under

arrest based on our desire as to whether the officer should have had probable cause. State

v. Williams, 102 Wn.2d 733, 739-40, 689 P.2d 1065 (1984).




                                             8
No. 36542-5-III
State v. Stephens


       Based on both the federal and state constitutions, Washington recognizes, at least

in theory, almost an absolute bar to warrantless seizures. State v. Flores, 186 Wn.2d 506,

512 (2016). Officer Albert Gonzalez seized Kenneth Stephens without a warrant.

       One exception to a warrant requirement is an investigative or Terry stop. State v.

Acrey, 148 Wn.2d 738, 746 (2003). A Terry stop amounts to a seizure, although it is less

intrusive than a custodial arrest. State v. Kennedy, 107 Wn.2d 1, 4 (1986). An

investigatory stop permits an officer to briefly detain and question an individual on less

than probable cause. State v. Acrey, 148 Wn.2d at 746-47. To initiate an investigatory

stop, the officer needs a well-founded suspicion based on objective facts that the

individual is connected to actual or potential criminal activity. Terry v. Ohio, 392 U.S. 1,

88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); State v. Sieler, 95 Wn.2d 43, 46, 621 P.2d 1272

(1980).

       An arrest diverges from an investigatory stop. The classic definition of arrest

consists of “‘the apprehending or restraining of one’s person, in order to be forthcoming

to answer an alleged or suspected crime.’” State v. Rupe, 101 Wn.2d at 683-84 (1984)

(quoting EDWARD C. FISHER, LAWS OF ARREST 7 (1967) (quoting 4 WILLIAM

BLACKSTONE, COMMENTARIES *288). When judging whether an arrest occurred, the

court first asks whether the individual was free to leave the presence of the police. State


                                             9
No. 36542-5-III
State v. Stephens


v. Rupe, 101 Wn.2d 664, 684 (1984). The court then assesses the likelihood that the

present confinement will be accompanied by future interference with the individual’s

freedom of movement. Terry v. Ohio, 392 U.S. 1, 26 (1968); State v. Rupe, 101 Wn.2d at

684. The second step reflects the common law notion that an arrest constitutes more than

a present confinement. State v. Rupe, 101 Wn.2d at 684.

       An arrest takes place when a duly authorized officer of the law manifests an intent

to take a person into custody and actually seizes or detains such person. State v. Ortega,

177 Wn.2d 116, 128, 297 P.3d 57 (2013); State v. Patton, 167 Wn.2d 379, 387 (2009).

The inquiry is whether a reasonable person under the circumstances would consider

himself or herself under arrest. State v. Ortega, 177 Wn.2d 116, 128 (2013); State v.

Reichenbach, 153 Wn.2d at 135(2004). The existence of an arrest depends in each case

on an objective evaluation of all the surrounding circumstances. State v. Patton, 167

Wn.2d 379, 387 (2009). Examples of conduct that would cause a reasonable person to

believe he or she was under arrest include handcuffing the suspect, placing the suspect in

a patrol vehicle for transport, and telling the suspect that he or she is under arrest. State v.

Ortega, 177 Wn.2d 116, 128 (2013); State v. Radka, 120 Wn. App. 43, 49-50 (2004).

       The State argues that a suspect is not under arrest until the officer advises him he

is under an arrest. Although the law deems an officer’s announcement of an arrest to be


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No. 36542-5-III
State v. Stephens


one factor, the arresting officer need not orally communicate the intent to arrest for the

court to find an arrest. State v. Salinas, 169 Wn. App. 210, 218 (2012); State v. Turpin,

25 Wn. App. 493, 499, 607 P.2d 885 (1980), rev’d on other grounds, 94 Wn.2d 820, 620

P.2d 990 (1980); City of Seattle v. Sage, 11 Wn. App. 481, 485, 523 P.2d 942 (1974). A

person may be arrested even if the officer mistakenly believes otherwise. State v. Turpin,

25 Wn. App. 493, 499 (1980). If we adjudged an arrest to transpire only after a

proclamation by the law enforcement officer, law enforcement could manipulate and deny

Fourth Amendment rights by delaying or omitting an announcement of arrest.

       The State emphasizes that Officer Albert Gonzalez did not intend to arrest

Kenneth Stephens until after Stephens confessed. In turn, the State argues that the

officer’s intent controls whether or not the court should categorize the seizure as an arrest

or as an investigatory stop. In so arguing, the State contravenes the reasoning of State v.

Radka, 120 Wn. App. 43, 49 (2004).

       According to State v. Radka, 120 Wn. App. 43, 49 (2004), the determination of

custody hinges on the “‘manifestation’ of the arresting officer’s intent.” Although this

quote refers to the officer’s intent, the quote does not end there. The manifestation of the

intent, not the subjective intent controls. Furthermore, this court, in State v. Radka, noted

that Washington courts moved away from relying on the officer’s subjective intent.


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No. 36542-5-III
State v. Stephens


       As already written, case law, and even State v. Radka, emphasizes the test of when

an arrest transpired focuses on what the reasonable suspect would believe. The law

employs an objective test to determine whether a person is in a custodial arrest. State v.

Reichenbach, 153 Wn.2d 126, 135, 101 P.3d 80 (2004). A suspect is in custody if a

reasonable person in the suspect’s circumstances would believe his movements were

restricted to a degree associated with formal or custodial arrest. Berkemer v. McCarty,

468 U.S. 420, 440, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984); State v. Reichenbach, 153

Wn.2d 126, 135 (2004); State v. Lorenz, 152 Wn.2d 22, 36-37 (2004); State v. Gering,

146 Wn. App. 564, 567 (2008). The test is whether a reasonable detainee under these

circumstances would consider himself or herself under full custodial arrest. State v.

Gering, 146 Wn. App. at 567 (2008); State v. Radka, 120 Wn. App. at 49.

       Kenneth Stephens underscores his being handcuffed. In response, the State argues

that handcuffing alone does not necessarily lead to a conclusion that a suspect is under

arrest. We agree. A law enforcement officer may handcuff a suspect during an

investigatory stop, but generally the officer must articulate a reason for deeming the

suspect dangerous or a risk of flight. State v. Williams, 102 Wn.2d 733, 740-41 (1984);

State v. Cunningham, 116 Wn. App. 219, 229, 65 P.3d 325 (2003); State v. Gering, 146

Wn. App. 564, 567 (2008). Officer Albert Gonzalez never testified that he considered


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No. 36542-5-III
State v. Stephens


Kenneth Stephens threatening, let alone identified a reason for considering Stephens

dangerous. Officer Gonzalez never testified he was worried about Stephens escaping.

       In some Washington decisions, handcuffing was part of the arrest. State v.

Williams, 102 Wn.2d 733, 740, 689 P.2d 1065 (1984); State v. Salinas, 169 Wn. App. at

218-19 (2012); State v. Gering, 146 Wn. App. 564 (2008). Accordingly, handcuffing a

suspect signifies an arrest. State v. Rowland, 172 Ariz. 182 836 P.2d 395, 397 (Ct. App.

1992). Handcuffing is a hallmark of a formal arrest. Broom v. United States, 118 A.3d

207, 213 (D.C. 2015). Handcuffing communicates to the suspect that he is under arrest.

State v. Turpin, 25 Wn. App. at 499 (1980).

       In State v. Gering, 146 Wn. App. 564 (2008), the law enforcement officer asked

Robert Gering to step outside of a business. When Gering complied, the officer

handcuffed him. This court determined the officer to have then arrested Gering. The

facts did not show whether the officer ever informed Gering, when handcuffing him, that

he was under arrest. But conversely, the facts did not indicate that the officer ever told

Gering he was free to leave.

       Kenneth Stephens also astutely highlights the delivery of the Miranda warnings.

Generally, the officer gives Miranda warnings only after the arrest. See State v. Marcum,

149 Wn. App. 894 (2009); State v. Turpin, 25 Wn. App. 493 495, (1980). The law does


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No. 36542-5-III
State v. Stephens


not require an officer to give the Miranda warnings until after the arrest. State v.

Marcum, 149 Wn. App. 894, 911 (2009). Giving a defendant Miranda warnings weighs

in favor of concluding that an arrest occurred because most people associate the warnings

with arrest. State v. Snyder, 240 Ariz. 551, 555, 382 P.3d 109, 113 (Ct. App. 2016);

People v. Ollie, 333 Ill. App. 3d 971, 777 N.E.2d 529, 539, 267 Ill. Dec. 726 (2002).

       We create no per se rule that a suspect is under arrest if read Miranda rights or

under arrest if handcuffed. Nevertheless, based on the totality of the circumstances, we

conclude that Officer Albert Gonzalez arrested Kenneth Stephens when handcuffing him.

Before the cuffing of Stephens, Gonzalez instructed Stephens he was not fee to leave.

Immediately before or after shackling Stephens, Gonzalez read the Miranda rights. The

handcuffing and warnings directly led to the questioning of Stephens, the search of

Stephens’ person, and the incarceration of Stephens.

       The State argues that some intermediate level of contact between a law

enforcement officer and a suspect fits between an investigatory stop and an arrest. The

State labels this halfway ground as “custody.” Nevertheless, the State presents no Fourth

Amendment law supporting a legal land of limbo.

       The State argues that Officer Albert Gonzalez merely acted prudently when issuing

the Miranda warnings and putting Kenneth Stephens in handcuffs. This argument directs


                                             14
No. 36542-5-III
State v. Stephens


us again to address the subjective intent of the officer. To repeat, we adjudge whether the

officer arrested an individual based on whether a reasonable person would deem himself

or herself under arrest.

       Kenneth Stephens assigns error to those portions of findings of fact 2.5 and 2.6

that state that he was first “detained” and then later “arrested” only after making

inculpatory statements. We consider the findings, to the extent they label the conduct of

Officer Albert Gonzalez, to be legal conclusions because the findings do not simply

describe the underlying facts. We review conclusions of law de novo. State v. Garvin,

166 Wn.2d 242, 249, 207 P.3d 1266 (2009). Appellate courts review a trial court’s

custodial determination de novo. State v. Lorenz, 152 Wn.2d at 36 (2004); State v.

Gering, 146 Wn. App. 564, 567 (2008).

       A warrantless seizure is presumed unreasonable under the Fourth Amendment.

State v. Acrey, 148 Wn.2d 738, 746 (2003). Since Officer Albert Gonzalez arrested

Kenneth Stephens, rather than performing an investigatory stop, the State must show that

Gonzalez possessed probable cause that Stephens committed a crime. State v. Grande,

164 Wn.2d 135, 141, 187 P.3d 248 (2008). The State bears the burden of establishing

probable cause. State v. Thompson, 151 Wn.2d 793, 803, 92 P.3d 228 (2004).




                                             15
No. 36542-5-III
State v. Stephens


       The State argues that Officer Albert Gonzalez possessed probable cause to arrest

Kenneth Stephens for theft, but we are uncertain as to whether the State bases this

argument on the assumption that Gonzalez did not arrest Stephens until after the

confession of taking cameras. Otherwise, the State focuses on thwarting Stephens’s

contention that Officer Gonzalez arrested Stephens before his confession. At any rate,

despite Stephens’s extensive analysis of whether probable cause existed, the State

provided no evaluation as to whether Gonzalez possessed probable cause to arrest

Stephens at the time that Gonzalez read him his Miranda rights. This court does not

review issues not argued, briefed, or supported with citation to authority. RAP

10.3(a)(6); Valente v. Bailey, 74 Wn.2d 857, 858, 447 P.2d 589 (1968); Avellaneda v.

State, 167 Wn. App. 474, 485 n.5, 273 P.3d 477 (2012). Because the State does not meet

its burden of showing probable cause for the arrest of Kenneth Stephens, we suppress the

evidence of the methamphetamine seized as a result of the search incident to arrest.

       In addition to requesting that we suppress the evidence of the methamphetamine,

Kenneth Stephens ask that we suppress his confession to stealing the cameras. Because

the jury acquitted Stephens of trafficking in stolen property, we need not address this

request.




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No. 36542-5-III
State v. Stephens


                                     CONCLUSION

      We hold that the trial court erred when denying Kenneth Stephens’ application to

suppress evidence of methamphetamine found on his person. We reverse the conviction

for and dismiss the charge of possession of a controlled substance.

      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.

                                         _________________________________
                                         Fearing, J.

WE CONCUR:



______________________________
Siddoway, J.


______________________________
Pennell, C.J.




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