Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

                                                                               FILED
                                                                           FEB 16, 2012
                                                                    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

STATE OF WASHINGTON,                                      No.  29593-1-III
                                                )
                      Respondent,               )
                                                )         Division Three
              v.                                )
                                                )
JACOB GANN,                                     )         UNPUBLISHED OPINION
                                                )
                      Appellant.                )
                                                )

       Brown, J. -- Jacob Gann appeals his bench-trial conviction for possessing 

methadone, a controlled substance.  He contends the court erred in denying his CrR 

3.6 evidence suppression motion because the evidence was collected after he was 

interrogated without being first advised of his rights under Miranda v. Arizona, 384 U.S. 

436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). We affirm.

                                            FACTS

       The facts are mainly drawn from unchallenged CrR 3.6 findings of fact that are,

therefore, verities on appeal.  State v. O'Neill, 148 Wn.2d 564, 571, 62 P.3d 489 

(2003).       In March 2010, an officer saw what he believed to be a drug transaction 

at a gas station involving Mr. Gann.  The officer reported the incident to the drug task  

No. 29593-1-III 
State v. Gann  

force.  Detective Steve Brown went to Mr. Gann's home with Detective Luis Rubio.  The 

detectives wore plain clothes and drove an unmarked vehicle.  While standing outside 

on Mr. Gann's front lawn, Detective Brown told Mr. Gann that an officer had observed 

him buying drugs.  Detective Brown then told Mr. Gann, "you're either going to work

with me or end up in jail if you keep using drugs." Clerk's Papers (CP) at 4.  The 

detective asked him if he was going to give him the drugs.  Mr. Gann then took 

methadone pills out of his pocket and handed them to Detective Brown.    

       The State charged Mr. Gann with possession of a controlled substance, 

methadone.  Mr. Gann requested suppression of the drugs, arguing he was not advised 

of his Miranda warnings prior to turning over the drugs.  The court denied his request, 

concluding "Miranda was not required in this situation as the defendant was not under 

arrest and was free to leave.  A reasonable person would not believe that they could 

not go into their house in this scenario." CP at 4.  Following a bench trial based on 

stipulated facts, the court found Mr. Gann guilty as charged.  He appeals.  

                                          ANALYSIS

       The issue is whether the trial court erred by denying Mr. Gann's CrR 3.6 motion 

to suppress.  Mr. Gann contends this evidence was admitted in violation of Miranda.  

       We review a CrR 3.6 motion to suppress "to determine whether substantial

evidence supports the trial court's challenged findings of fact and, if so, whether the 

findings support the trial court's conclusions of law."  State v. Cole, 122 Wn. App. 319, 

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No. 29593-1-III 
State v. Gann  

322-23, 93 P.3d 209 (2004) (citing State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 

722 (1999)).  Unchallenged findings of fact are verities on appeal.  O'Neill, 148 Wn.2d 

at 571.  Conclusions of law are reviewed de novo. Cole, 122 Wn. App. at 323.

       While Miranda warnings are not required for voluntary consent, the procedural 

protections enunciated in Miranda are necessary when a person is subjected to 

custodial interrogation by a state agent. State v. Sargent, 111 Wn.2d 641, 647, 762 

P.2d 1127 (1988).  "Custody for Miranda purposes is narrowly circumscribed and 

requires formal arrest or restraint on freedom of movement of the degree associated 

with a formal arrest."  State v. Post, 118 Wn.2d 596, 606, 826 P.2d 172, 837 P.2d 599 

(1992). Mr. Gann initially argues he was subjected to custodial interrogation, citing 

State v. Dennis, 16 Wn. App. 417, 558 P.2d 297 (1976).

       In Dennis, this court concluded the defendant was under custodial interrogation 

and that Miranda warnings were required when the officer in the defendant's residence 

convinced the defendant to produce a supply of narcotics hidden in the refrigerator,

and then the officer arrested him.  Dennis, 16 Wn. App. at 419. The officer was inside 

the defendant's home and told the defendant and his wife that a search warrant was on 

its way and they were going to wait for it.  When the defendant's wife requested the 

officer move to another room, he insisted on remaining at the kitchen table in a position 

where he could monitor and restrict the occupants' freedom of movement within their 

home. Id. at 420-22. The court reasoned under those circumstances a reasonable 

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No. 29593-1-III 
State v. Gann  

man would have believed his freedom of movement was significantly restricted and that 

any attempt to leave would probably result in immediate physical restraint or custody. 

Id. at 422.

       Where a police officer's questioning or requests induce a suspect to hand over 

or reveal the location of incriminating evidence, such a nonverbal act may be 

testimonial in nature; that act should be suppressed if done while in custody without 

Miranda warnings.  State v. Wethered, 110 Wn.2d 466, 471, 755 P.2d 797 (1988).  

Here, like Dennis, Mr. Gann turned over incriminating evidence in response to a police 

question.  Mr. Gann is arguably correct that this is a testimonial act.  But the dispositive 

question is whether any interrogation occurred while Mr. Gann was in custody.

       The Miranda safeguards apply "as soon as a suspect's freedom of action is 

curtailed to a 'degree associated with formal arrest.'" Berkemer v. McCarty, 468 U.S. 

420, 440, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984) (quoting California v. Beheler, 463 

U.S. 1121, 1125, 103 S. Ct. 3517, 77 L. Ed. 2d 1275 (1983)). Whether a defendant 

was in custody for Miranda purposes depends on "whether the suspect reasonably 

supposed his freedom of action was curtailed." State v. Short, 113 Wn.2d 35, 41, 775 

P.2d 458 (1989).

       But a "non-coercive" investigative detention does not amount to custody.  State 

v. Heritage, 152 Wn.2d 210, 218, 95 P.3d 345 (2004).  In this type of detention, police 

may ask a "moderate" number of questions relating to the investigative purpose of the 

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No. 29593-1-III 
State v. Gann  

stop without the detainee being considered in custody for Miranda purposes.  Id.  

Similarly, the court found Detective Brown approached Mr. Gann in his front yard with 

plain clothes and an unmarked vehicle. He asked a moderate number of questions 

about the drug transaction at the gas station.  No evidence shows he restricted Mr. 

Gann's movement. This case is unlike Dennis where the police were inside the home, 

told the defendant a search warrant was on its way, and when the defendant's wife 

asked the officer whether they could move to another room, he refused.  

       In sum, the trial court correctly reasoned based on the facts it found of a 

noncoercive encounter, that a reasonable person would believe he could leave and not 

answer the detective's questions.  Thus, Mr. Gann was not in custody for Miranda

purposes.  The trial court properly denied his motion to suppress.  

       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.

                                                    _______________________________
                                                    Brown, J.

WE CONCUR:

______________________________                      ________________________________
Korsmo, A.C.J.                                      Siddoway, J.

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