                                                                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. 37354-1-III
                                              )
                     Respondent,              )
                                              )
              v.                              )         UNPUBLISHED OPINION
                                              )
ARTHUR ALEKSEEVYCH                            )
SHCHUKIN,                                     )
                                              )
                     Appellant.               )

       LAWRENCE-BERREY, J. — Arthur Shchukin appeals after his conviction for

vehicular homicide, operating a vehicle while under the influence. We affirm.

                                          FACTS

       One morning in late 2016, Arthur Shchukin met his girlfriend Alina Pozhar at

Jantzen Beach, Oregon. Shchukin drove Pozhar around for a couple hours before

stopping at a bar where they shared a bottle of wine. Toward evening, they headed east

on Highway 14 in Washington. While driving, Shchukin had three glasses of wine.

Driving too fast around a corner, Shchukin lost control of his car and crashed into a tree.

Two women immediately came upon the crash, and one called 911.
No. 37354-1-III
State v. Shchukin


      Clark County Sherriff’s Deputy Seth Brannan responded to the call. When he

arrived, Deputy Brannan approached the car and saw that Pozhar was dead. He then

approached Shchukin who was sitting near the car.

      Shchukin was very upset and told the deputy he was the driver of the car. Deputy

Brannan then asked for Shchukin’s name and the name of his passenger. Shchukin told

the deputy his name and went on to tell the deputy that he had been driving too fast and

showing off and said he “killed her.” Report of Proceedings (RP) at 306. As Shchukin

spoke, the deputy smelled alcohol on his breath. Shchukin also said he had been drinking

wine. Deputy Brannan did not ask any additional questions and let the paramedics take

care of Shchukin.

      While being examined by the paramedics, Shchukin asked to be taken to jail and

said, “I killed her.” RP at 238. He told the paramedics he had been speeding, showing

off, and drinking wine before the crash. The paramedics took Shchukin to a hospital.

      Detective Ryan Preston heard about the accident and fatality on his radio.

Detective Preston spoke with Deputy Brannon, who relayed what he knew. Detective

Preston then went to the hospital to meet Shchukin and investigate if Shchukin was an

impaired driver. Detective Preston met Shchukin in the ambulance before he was




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State v. Shchukin


admitted and noticed Shchukin’s eyes were bloodshot and watery. He then applied for,

and obtained, a search warrant for Shchukin’s blood alcohol level.

       Detective Preston then interviewed Shchukin. Before starting the interview,

Detective Preston read Shchukin his Miranda1 rights. Shchukin agreed to speak with

Detective Preston and admitted he had been drinking before the crash and had lost control

of the car around a corner. Following the interview, an emergency medical technician

drew Shchukin’s blood. Shchukin’s blood alcohol level at the time of testing was 0.10.

       Shchukin was arrested and charged with vehicular homicide. The State later

amended the charge to vehicular homicide, operating a vehicle while under the influence.

Prior to trial, Shchukin moved to suppress his confessions to Deputy Brannan and the

paramedics.2 In addition, he requested a Franks3 hearing to challenge the search warrant,

claiming Detective Preston left out material facts in his application.

       The trial court held a hearing and denied both motions. With respect to the

suppression motion, the trial court determined that Shchukin’s statements about the crash

were spontaneous and unprompted, and were not made while in police custody. The trial


       1
         Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
       2
         We note that the confessions to Deputy Brannan and the paramedics were
substantially similar to the confession Shchukin made to the detective after receiving
Miranda warnings.
       3
         Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).

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No. 37354-1-III
State v. Shchukin


court also found the deputy had not requested the paramedics to ask Shchukin any

questions and that Deputy Brannan did not follow the ambulance to the hospital.

       With respect to the request for a Franks hearing, the trial court found that

Detective Preston’s warrant application contained relevant facts including (1) Shchukin

admitted he was speeding and showing off, (2) Deputy Brannan smelled alcohol on

Shchukin’s breath, (3) Shchukin admitted that he was speeding, (4) Shchukin admitted

that he was drinking, and (5) Shchukin was observed with bloodshot and watery eyes.

The trial court concluded the warrant was based on probable cause, and Shchukin had not

met his burden to prove the warrant application contained a deliberate falsehood, a

deliberate omission, or recklessly disregarded the truth.

       Shchukin waived his right to a jury trial. Following a bench trial, the trial court

found Shchukin guilty on the charge of vehicular homicide. The trial court sentenced

Shchukin to 95 months’ confinement.

       Shchukin timely appealed.

                             ISSUES RAISED ON APPEAL

       1.     Whether Shchukin was in police custody when he made his statements to

Deputy Brannan and the paramedics.




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State v. Shchukin


       2.     Whether Detective Preston deliberately or recklessly omitted critical details

in his warrant application that negated the court’s probable cause finding.

                                       ANALYSIS

       DENIAL OF SUPPRESSION MOTION

       Shchukin contends the trial court erred by not suppressing his confessions to

Deputy Brannan and the paramedics. He argues his statements were the result of pre-

Miranda custodial interrogations that should have been excluded. We disagree.

       Miranda warnings protect a defendant’s right not to make incriminating statements

while in the potentially coercive environment of custodial police interrogation. State v.

Harris, 106 Wn.2d 784, 789, 725 P.2d 975 (1986); see Miranda v. Arizona, 384 U.S. 436,

86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The Miranda rule applies when an interview is

“(1) custodial (2) interrogation (3) by a state agent.” State v. Post, 118 Wn.2d 596, 605,

826 P.2d 172, 837 P.2d 599 (1992). Without Miranda warnings, a defendant’s

statements, made in police custody, are presumed to be involuntary. State v. Sargent, 111

Wn.2d 641, 647-48, 762 P.2d 1127 (1988). This court reviews alleged Miranda

violations de novo. City of Coll. Place v. Staudenmaier, 110 Wn. App. 841, 848, 43 P.3d

43 (2002).




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State v. Shchukin


       A defendant is in custody for purposes of Miranda if his freedom of action is

“curtailed to a degree associated with formal arrest.” Id. at 848-49. “Temporary

detainment following a routine traffic stop does not constitute custody for purposes of

Miranda—regardless of the seriousness of the potential traffic charge.” Id. at 849.

       Shchukin argues, because of the circumstances, a reasonable person would not feel

free to leave. However, this is not the proper inquiry. As we have previously held, “The

issue is not whether a reasonable person would believe he or she was not free to leave,

but rather ‘whether such a person would believe he was in police custody of the degree

associated with formal arrest.’” State v. Ferguson, 76 Wn. App. 560, 566, 886 P.2d 1164

(1995) (quoting 1 WAYNE R. LAFAVE & JEROLD H. ISRAEL, CRIMINAL PROCEDURE § 6.6,

at 105 (Supp. 1991)).

       Whether a reasonable person would believe they were subject to something

akin to a formal arrest requires this court to look to a number of factors. These include

(1) whether the defendant was physically restrained, (2) where the interview took place,

(3) whether the officer had drawn his weapon, and (4) whether the defendant was released

following the interrogation. See State v. Rivard, 131 Wn.2d 63, 76, 929 P.2d 413 (1997).

       Here, Deputy Brannan approached Shchukin in public. He did not put Shchukin in

handcuffs or physically restrain him in any way. He only approached Shchukin and asked


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State v. Shchukin


for his name and the name of the woman in the car. Finally, following hearing

Shchukin’s confession, Deputy Brannan released Shchukin to the paramedics. For their

part, the paramedics treated Shchukin and took him to the hospital, not to the jail, as he

repeatedly requested.

       At no point during this process was Shchukin’s freedom of action curtailed to a

degree associated with a formal arrest. Because Shchukin’s statements to Deputy

Brannon and the paramedics were not made while in police custody, we conclude the trial

court did not err by denying Shchukin’s motion to suppress.

       DENIAL OF FRANKS HEARING

       Shchukin contends the trial court erred by denying his request for a Franks

hearing. We disagree.

       A search warrant may be invalidated if the application supporting the warrant

contained material falsehoods, whether intentionally or with reckless disregard for the

truth, or if the application had deliberate or reckless omissions of material information.

State v. Ollivier, 178 Wn.2d 813, 847, 312 P.3d 1 (2013). If the defendant makes a

substantial preliminary showing that the application contained material falsehoods or

omissions, a trial court must grant a Franks hearing to establish the allegation. Id. We




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State v. Shchukin


review a trial court’s denial of a Franks hearing for abuse of discretion. State v. Wolken,

103 Wn.2d 823, 829-30, 700 P.2d 319 (1985).

       Here, Shchukin contends the warrant omitted material facts—namely, Detective

Preston omitted in his application the fact that Deputy Brannan did not observe Shchukin

to be slurring his words or unsteady on his feet. The elements to show a material

omission are (1) there was an omission or misstatement of fact in the application for the

warrant, (2) the fact was material, and (3) the omission or misstatement was either

intentional or reckless. State v. Chenoweth, 160 Wn.2d 454, 470, 158 P.3d 595 (2007).

       Here, Detective Preston applied for a search warrant because the driver admitted

he had been drinking wine, was driving too fast, was showing off, and had killed his

passenger. A driver need not have a blood alcohol content of 0.08 or higher to be guilty

of driving under the influence. Driving under the influence also occurs if a driver merely

was under the influence of or affected by alcohol. RCW 46.61.502(1)(c). Similarly,

vehicular homicide occurs when a driver under the influence of alcohol kills another; no

particular level of intoxication is required. RCW 46.61.520(1)(a).

       Even if Detective Preston knew that Deputy Brannan did not observe Shchukin

slurring his words or unsteady on his feet, this information was not material. The level of

Shchukin’s intoxication was only of secondary relevance, given Shchukin’s own


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No. 37354-1-111
State v. Shchukin


statements he had been drinking wine, was driving too fast, was showing off, and had

killed Pozhar. Shchukin's own statements provided ample basis for a blood draw.

Because the purported omission was not material, the trial court did not abuse its

discretion by denying Shchukin' s request for a Franks hearing.

      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:




Siddoway, J.




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