State v. Creach

Decision Date06 November 1969
Docket NumberNo. 39740,39740
Citation461 P.2d 329,77 Wn.2d 194
CourtWashington Supreme Court
PartiesThe STATE of Washington, Respondent, v. Bobby Lee CREACH, a/k/a Robert Lee Creach, Appellant.

George F. Velikanje, Yakima, for appellant.

Lincoln E. Shropshire, Pros. Atty., F. James Gavin, Deputy Pros. Atty., Yakima, for respondent.

WEAVER, Judge.

Defendant, found guilty by a jury of first degree forgery, appeals from his judgment and sentence. RCW 9.44.020--9.44.060.

The alleged forgery was the signature of the named payee, James S. Black, as an endorsement on a check stolen from Mr. Black's automobile on or about August 7, 1966. Other items stolen from the car were a billfold, numerous credit cards, and two suitcases.

August 9, 1966, the Yakima Police Department received a report that an individual was exhibiting credit cards that appeared to be stolen. Pursuant to this report, Officer Leavitt went to the Chinook Hotel where defendant was pointed out by the manager as the individual reported. Officer Leavitt approached defendant and asked for identification documents. Defendant produced a billfold containing numerous credit cards and a driver's license for 'James S. Black.' Defendant stated that he was Mr. Black and complied with the officer's request that he step outside to answer questions, although he protested that he was waiting for a telephone call.

Outside, Officer Leavitt met Sergeant Qualley and told him he had some difficulty identifying defendant. Answers by defendant to questions concerning his height, weight, date of birth, and color of eyes and hair did not correspond with the information on the driver's license. He was requested to accompany the officers to the police station.

Nothing was said on the ride to the station. While in the elevator, defendant produced a second wallet and volunteered that it contained his correct identification.

At the police station, defendant was interrogated by Detective Sergeant May, who testified that he informed defendant of his constitutional rights by reading the following list to him:

Preliminary Questions for Recorded Statements

The date is _ _. The times is _ _, room _ _ in the Yakima Police Department, Detective Division. Present during this statement:

Q. What is your true name?

Q. Your address?

Q. Your age and date of birth?

Q. Do you understand that you have a right to remain silent?

Q. Do you understand that any statement that you make may be used in court against you at a later date?

Q. Do you understand that you have the constitutional right to have the advice of an attorney before making this statement?

Q. Do you understand that if you do not have the funds to hire an attorney the court will appoint an attorney for you free of charge to you?

Q. Do you waive these rights?

Q. Do you understand what the word 'waive' means?

Q. Is this statement voluntary on your part?

Begin interview. (Italics ours.)

Defendant stated that he did not want an attorney; but we note, he was not advised that he had the right to have an attorney present during the interrogation. Defendant admitted that the 'Black' billfold was stolen, and that he was in possession of the other stolen articles. After further questioning, defendant was booked and placed in jail.

August 11, 1966, two days later, the police received notice that the endorsement on a check, payable to and drawn by James S. Black, had been forged. Defendant was interrogated again; this time by Detective Sergeant Rutz, who testified that he gave defendant the following explanation of his constitutional rights:

I advised the gentleman that if he wanted to retain an attorney there was a phone and a phone book he could use on my desk, and that if he did not have the funds to hire an attorney, That if he wound up in court, the court would appoint an attorney for him without cost to him. Q. But did you also tell him that you would not say one more word to him until that attorney arrives? A. No, sir. (Italics ours.)

Sergeant Rutz further testified that defendant told him that he was well aware of his rights and indicated that he did not want an attorney. During interrogation, defendant admitted that he cashed the stolen check using Mr. Black's signature and identification.

Pursuant to CrR 101.20W, the trial court determined that defendant had been fully advised of his constitutional rights prior to making any statement to the officers; that his statements admitting the forgery were voluntary; and that the statements were admissible in evidence.

Defendant makes two assignments of error: first, that it was reversible error to permit Officers Leavitt, Qualley, and May to testify concerning statements made by defendant between the time he was approached by Officer Leavitt at the Chinook Hotel and interrogated by Officer May. Second, it was reversible error to admit the testimony of Officers May and Rutz concerning defendant's statements that he had forged the endorsement; the defendant had not been properly apprised of his constitutional rights.

This appeal brings into sharp focus the applicability of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), to the facts of the instant case.

We disagree with defendant's contention that the testimony of Officers Leavitt, Qualley, and May was inadmissible because he had not been given the Miranda preinterrogation warnings when asked to step outside the Chinook Hotel to answer questions concerning his identity.

The same contention was made in United States v. Gibson, 392 F.2d 373 (4th Cir. 1968). Defendant had been asked by a police officer to step outside a tavern to answer questions concerning an automobile. In rejecting this argument, the court said:

In Miranda, the primary concern of the Court was with the 'potentiality of compulsion' inherent in in-custody interrogations. The Court spoke of that case as one in which '(a)n individual is swept from (his) surroundings into police custody,' 'thrust into an unfamiliar atmosphere,' held incommunicado, 'surrounded by antagonistic forces,' and 'run through meancing police interrogation procedure.' This is not such a case.

'Custodial interrogation' certainly includes all station-house or police-car questioning initiated by the police, for there the 'potentiality for compulsion' is obvious. Whether it also reaches police inquiries made of a suspect on the street or at his own home was left unanswered by the Court and has been much debated. * * * Precise refinements of the terms 'custody' and 'interrogation' will have to be developed on a case-by- case basis. Thus, our present task is to determine whether the atmosphere surrounding the brief police questioning on the sidewalk near the car was characterized by 'official overbearing' or 'overzealous police practices' which, as the Court pointed out, could preclude the individual's making a rational decision whether to speak to the police or remain silent.

This court does not read Miranda as requiring officers to preface with a warning all non-coercive questioning conducted in the course of a routine investigation as in the circumstances of this case.

It is difficult to set forth an allinclusive rule covering every possible situation, but once an investigating officer has probable cause to believe that the person confronted has committed an offense, the officer cannot be expected to permit the suspect to leave his presence. At that point, interrogation becomes custodial, and the suspect must be warned of his rights. People v. Ceccone, 260 Cal.App.2d 886, 67 Cal.Rptr. 499 (1968). See Mathis v. United States, 391 U.S. 1, 4, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968).

In a recent decision rendered after oral argument in the instant case, Miranda was deemed applicable to interrogation of a suspect questioned in his bed in his own room by four police officers at 4 a.m. One of the officers testified that the defendant 'was under arrest and not free to leave when he was questioned in his bedroom in the early hours of the morning.' Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969).

Orozco does not extend the rules of Miranda. It simply applies the rule to a specific factual situation, completely different from the instant case. Orozco answers the dissenting opinion.

The questioning of defendant outside the hotel was noncoercive; it did not have the 'potentiality of compulsion inherent in the in-custody interrogations.' It was conducted during the course of a routine investigation.

It was not a 'custodial interrogation,' which the United States Supreme Court has defined as

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. (Miranda, supra.)

There is no evidence of overbearing or overzealous police officers. Until he was asked to enter the police car, defendant had no reasonable basis to believe that he was under restraint. In fact, Sergeant Qualley testified that had defendant refused to cooperate, he would not have been arrested, but merely kept under surveillance until more information could be obtained. Both officers testified that they did not ask any questions of defendant on the ride to the police station, nor did they ask defendant for the second wallet; he produced it voluntarily.

We find no merit in defendant's first assignment of error.

Arrest, interrogation, and trial of defendant took place subsequent to June 13, 1966, the effective date of Miranda v. Arizona, Supra. See Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). We must, therefore, consider the impact of Miranda upon the facts of the instant case.

In general, Miranda requires that, prior to custodial interrogation of an accused, he must be warned: (1) that he has the right to remain silent; (2) that any statement he does make can and will be used as evidence against him in a court of law; (3) that he has the right to consult with...

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