State v. A.M.

• Citation: 194 Wash.2d 33,448 P.3d 35
• Decision Date: 12 September 2019
• Docket Number: No. 96354-1,96354-1
• Parties: STATE of Washington, Respondent, v. A.M., a minor, Petitioner.
• Court: United States State Supreme Court of Washington

194 Wash.2d 33

448 P.3d 35

STATE of Washington, Respondent,

v.A.M., a minor, Petitioner.

No. 96354-1

Supreme Court of Washington.

Oral Argument Date: May 28, 2019

Filed SEPTEMBER 12, 2019

Richard Wayne Lechich, Washington Appellate Project, 1511 3rd Avenue, Suite 610, Seattle, WA 98101-1683, for Petitioner.

J. Scott Halloran, Snohomish County Prosecuting Attorney-Criminal, 3000 Rockefeller Avenue, # MS504, Everett, WA 98201-4046, for Respondent.

MADSEN, J.

¶ 1 A.M., a juvenile, appeals an unpublished Court of Appeals decision affirming her conviction for possession of a controlled substance. First, A.M. argues that it was manifest constitutional error for the trial court to admit a detention center inventory form where she signed a sworn statement indicating that a backpack, which was discovered to contain methamphetamine, was her property because it violated her right against self-incrimination. Second, A.M. argues that the affirmative defense of unwitting possession is an unconstitutional burden-shifting scheme that violates her due process rights.

¶ 2 We hold the admission of the inventory form is manifest constitutional error because it violated her right against self-incrimination and warrants reversal because it is not harmless error. Because we find reversible constitutional error, we decline to consider A.M.'s due process argument and remand the case back to the trial court for further proceedings consistent with this opinion.

FACTS

Background Facts

¶ 3 A.M. entered a Goodwill store with two other women, a juvenile and an adult, pushing a shopping cart with a backpack in it. The adult woman put two Halloween costumes in the cart, and A.M. opened the large pocket of the backpack to put the costumes in. The loss prevention officer observed the entire incident on the security cameras in the store. As the three women were leaving the store without paying for the costumes, A.M. put the backpack on her back. The loss prevention officer stopped A.M. just outside of the store. A.M. was detained and escorted to Goodwill's security room to await police officers. When police arrived, they arrested A.M. for theft.

¶ 4 In a search incident to the arrest, police also searched the backpack and, in one of the smaller outer pockets, found a prescription bottle that looked to be a marijuana dispensary bottle filled with what appeared to be several little "baggies" inside. The officer believed it was methamphetamine and took the baggies for further testing. The substance was confirmed to be methamphetamine.

¶ 5 A.M. was booked in the juvenile detention center. At some point after her arrest, but prior to being booked, A.M. invoked her Miranda¹ rights. A.M. was required to sign an inventory form accounting for her belongings, which read, "I have read the above accounting of my property and money and find it to be accurate. I realize that property not claimed within 30 days will be subject to disposal." Ex. Transmittal Certificate, Ex. 3. When released, A.M. signed the same form, which stated, "I have received the above listed property." Id. The backpack was listed in the inventory form as part of A.M.'s belongings.

Procedural Facts

¶ 6 A.M. was charged with one count of third degree theft and one count of possession of a controlled substance. Clerk's Papers (CP) at 54-55. The case proceeded to bench trial. At trial, the State sought to admit the detention center inventory form, which indicated the backpack was A.M.'s property. The trial court admitted the form over defense counsel's objection.

¶ 7 A.M. also raised the unwitting possession affirmative defense. She testified that she had no knowledge of the methamphetamine in the backpack and that she got the backpack from the other juvenile's home. Verbatim Report of Proceedings (VRP) (Feb. 14, 2017) at 108. A.M. testified it was likely the other juvenile's or the adult woman's backpack and not hers. Id. at 107-08. The trial court rejected A.M.'s unwitting possession defense and convicted her of both counts. She was sentenced to two days of custody with credit for time served and no probation.

¶ 8 A.M. appealed her possession of a controlled substance conviction. A.M. raised for the first time on appeal that the admission of the inventory form was a violation of her right against self-incrimination, and she also argued that the unwitting possession defense was a violation of due process. The Court of Appeals declined to review her Fifth Amendment claim, holding that even if there was error, it caused no prejudice to her case and, as such, she does not meet the requirements for RAP 2.5(a)(3). See State v. A.M., No. 76758-5-1, 2018 WL 3628994 (Wash. Ct. App. July 30, 2018) (unpublished), https://www.courts.wa.gov/opinions/pdf/767585.pdf. The court also rejected her due process argument.

¶ 9 A.M. petitioned for review in this court on her due process claim and Fifth Amendment claim. We granted review.

ANALYSIS

The asserted error is reviewable under RAP 2.5

¶ 10 A.M. argues that admitting the detention center inventory form violates her right against self-incrimination. Trial counsel objected to the evidence on relevancy grounds, and the exhibit was admitted. The Court of Appeals declined to review the issue because it held that A.M. failed to meet the requirements of RAP 2.5(a)(3) when she failed to show actual prejudice.

¶ 11 Ordinarily, we do not consider unpreserved errors raised for the first time on review. State v. Scott , 110 Wash.2d 682, 685, 757 P.2d 492 (1988). However, manifest errors affecting a constitutional right may be raised for the first time on appeal. RAP 2.5(a)(3) ; In re Dependency of M.S.R., 174 Wash.2d 1, 11, 271 P.3d 234 (2012). To determine whether manifest constitutional error was committed there must be a " ‘plausible showing by the [appellant] that the asserted error had practical and identifiable consequences in the trial of the case.’ " State v. O'Hara, 167 Wash.2d 91, 99, 217 P.3d 756 (2009) (alteration in original) (internal quotation marks omitted) (quoting State v. Kirkman , 159 Wash.2d 918, 935, 155 P.3d 125 (2007) ).

¶ 12 RAP 2.5(a)(3) serves as a "gatekeeping function." State v. Lamar, 180 Wash.2d 576, 583, 327 P.3d 46 (2014). The purpose of the rule is different from actually reviewing the claimed error. Id. "The requirements under RAP 2.5(a)(3) should not be confused with the requirements for establishing an actual violation of a constitutional right or for establishing lack of prejudice under a harmless error analysis if a violation of a constitutional right has occurred." Id.

¶ 13 Here, the Court of Appeals held that because the alleged error caused no prejudice, it would not review the claim. However, RAP 2.5(a)(3) requires only that the defendant make a plausible showing that the error resulted in actual prejudice, meaning there were practical and identifiable consequences at trial. See id.

¶ 14 It is well settled that article I, section 9 of the Washington State Constitution and the Fifth Amendment to the United States Constitution afford a defendant the right against self-incrimination. When placing suspects in custody, police must advise them of their right to remain silent and their right to an attorney before interrogation. See Miranda, 384 U.S. at 445, 86 S.Ct. 1602. Absent a valid waiver, statements obtained from an individual in custody are presumed to be involuntary and violate the Fifth Amendment. State v. Sargent, 111 Wash.2d 641, 648, 762 P.2d 1127 (1988). A person is "in custody" when her freedom of movement is restricted. Oregon v. Mathiason, 429 U.S. 492, 494-95, 97 S. Ct. 711, 50 L. Ed. 2d 714 (1977). An "interrogation" is "any words or actions on the part of the police ... that the police should know are reasonably likely to elicit an incriminating response from the suspect." Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980) (footnote omitted).

¶ 15 When a defendant is placed in custody and has invoked her Miranda rights, any words or actions on the part of the police that are reasonably likely to elicit an incriminating response violate the Fifth Amendment. Although certain standard intake procedures may be required, we have held that using those procedures against a defendant's will violates the Fifth Amendment. See State v. Juarez DeLeon, 185 Wash.2d 478, 487, 374 P.3d 95 (2016). For example, in DeLeon, the defendants were asked to fill out a gang affiliation form as part of the jail's booking process. Id. at 484, 374 P.3d 95. At their trial, the judge admitted the defendants' statements on the form over the objection of defense counsel. Id. We held that while the questions were meant for the purpose of protecting inmates from "real and immediate threats of violence," the defendants' Fifth Amendment rights were violated by presenting those statements as evidence. Id. at 488-89, 374 P.3d 95.

¶ 16 A.M. meets the first part of RAP 2.5(a)(3) because the asserted error clearly implicates her Fifth Amendment right. Moreover, A.M. makes a plausible showing that the error had practical and identifiable consequences at trial because the trial court admitted the evidence over the objection of counsel, albeit on different grounds. The error is manifest from the record. We thus proceed to the merits of the raised constitutional error.

It was error to admit the inventory form

¶ 17 When A.M. was arrested by police, she invoked her Miranda rights.² She was unquestionably in custody when she was arrested at Goodwill and transported to the juvenile detention center. Thus, any words or actions on the part of the police that were reasonably likely to elicit an incriminating response violate the Fifth Amendment. A.M. was required to sign an inventory form listing the backpack, which held the methamphetamine.³ Above the signature lines were two statements: "I have read the above accounting of my property and money and find it to be accurate. I realize that property not claimed within 30 days will be...