State v. Spotted Elk

• Decision Date: 20 November 2001
• Docket Number: No. 19230-0-III.,19230-0-III.
• Citation: 109 Wash.App. 253,34 P.3d 906
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Pamela Faye SPOTTED ELK, Appellant.

34 P.3d 906

109 Wash.App. 253

STATE of Washington, Respondent, v. Pamela Faye SPOTTED ELK, Appellant.

No. 19230-0-III.

Court of Appeals of Washington, Division 3, Panel Two.

November 20, 2001.

As Amended on Denial of Reconsideration December 13, 2001.

William D. Edelblute, Attorney at Law, Spokane, Counsel for Appellant.

Kevin M. Korsmo, Andrew J. Metts, III, Deputy Prosecuting Attorneys, Spokane, Counsel for Respondent.

BROWN, A.C.J.

A jury convicted Pamela Spotted Elk of possessing heroin. On appeal, among other contentions, she argues her incriminating statements should have been suppressed because of a Miranda¹ violation. We agree, decide the remaining untainted evidence does not survive a harmless error analysis, and reverse.

FACTS

Police Officer Brad Linn of the Spokane Police Department saw Ms. Spotted Elk in downtown Spokane and suspected she had outstanding arrest warrants. After confirming his suspicions, Officer Linn arrested Ms. Spotted Elk. He did not give her the Miranda warnings. The officer knew Ms. Spotted Elk was a drug user and he was concerned she might have weapons, needles, or drugs on her person. Before cuffing and searching Ms. Spotted Elk incident to the arrest, Officer Linn asked, "Do you have anything on your person I need to be concerned about?" Report of Proceedings (RP) at 7. Usually, but apparently not here, Officer Linn's practice was to immediately explain: "Weapons, needles or anything that can poke me, stick me, of any kind?" RP at 7.

In response to Officer Linn's question, Ms. Spotted Elk removed a plastic container from the shirt pocket over her breast. Ms. Spotted Elk told the officer that the item was heroin belonging to a friend.

The State charged Ms. Spotted Elk with possessing heroin. At the suppression hearing, Officer Linn related he would not search the private areas of female detainees; he would not have turned the pocket inside out; and he would probably not have found the heroin. Assuming the female jail staff would later search Ms. Spotted Elk, as was his observation with male staff searching male detainees, Officer Linn opined Ms. Spotted Elk would have had her shirt pockets turned inside out. From this, the State argued, and the trial court accepted, inevitable discovery. The trial court, based upon officer safety considerations, denied the suppression motion. Under CrR 3.5, the trial court admitted her statement to Officer Linn that she had carried heroin for a friend.

At trial, claiming duress, Ms. Spotted Elk testified the heroin belonged to an abusive boyfriend. According to Ms. Spotted Elk, she donned her boyfriend's shirt, from the pocket of which the boyfriend removed drugs before she went out. Later, Ms. Spotted Elk noticed the heroin, but did not throw it away because she was afraid her boyfriend would beat her up. Ms. Spotted Elk refused to identify the boyfriend. On cross-examination, Ms. Spotted Elk said she told her probation officer, Tim Foley, about the abusive boyfriend.

Over objection, the State called Mr. Foley in rebuttal. During the State's offer of proof, Mr. Foley testified Ms. Spotted Elk told him she had been carrying the drugs for a friend. Mr. Foley said he and Ms. Spotted Elk had discussed abusive relationships "on many occasions[,]" but that she did not then seek any help. RP at 69. On cross-examination, Mr. Foley indicated Ms. Spotted Elk had a tendency to date abusive men. The trial court ruled it would not allow Mr. Foley to testify as to abusive relationships, but it would allow him to testify as to what Ms. Spotted Elk told him regarding her possession of the heroin. Mr. Foley then told the jury what Ms. Spotted Elk told him about carrying the drugs for a friend. In surrebuttal, Ms. Spotted Elk denied telling Mr. Foley she carried the drugs for another person.

In closing argument, the State argued, "in this case the State's dealing with a phantom. We don't know who the boyfriend is, or if the boyfriend even exists, or if the boyfriend's abusive." RP at 101. The defense argument is not part of our record, however, in rebuttal, the State argued:

And I would submit to you that her boyfriend may have had ... an idea of how much drugs he had, but unless he's weighing it out every little bit, that's a really tiny amount. So I would submit to you that what she told Mr. Foley most probably was the truth. She was delivering it for a friend—or, taking it to a friend as a favor, and she didn't see what the big deal was.

You do have—and so why would you come up with this story about being a battered woman if you don't believe her version? For the simplest reason in the world, you don't want to get in trouble. The evidence is she is a convicted felon for second degree robbery. This is another crime. She doesn't want to be convicted of a crime.

RP at 104.

The jury returned a guilty verdict. Ms. Spotted Elk appealed, specifying error in failing to suppress her statements and the heroin, and allowing prejudicial argument.

ANALYSIS

The dispositive issue is whether the trial court erred in denying Ms. Spotted Elk's suppression motion with respect to (1) her statement to Officer Linn, (2) her act of removing the heroin from her pocket, and (3) the heroin itself.

Ms. Spotted Elk did not assign error to the trial court's CrR 3.5 and CrR 3.6 findings of fact. Accordingly, those findings are verities on appeal. State v. Hill, 123 Wash.2d 641, 644, 870 P.2d 313 (1994). This court reviews the trial court's conclusions of law de novo. State v. Armenta, 134 Wash.2d 1, 9, 948 P.2d 1280 (1997).

The State concedes Ms. Spotted Elk was under arrest and had not been given Miranda warnings at the relevant time. This court has reasoned, "Failure to administer Miranda warnings creates a presumption of compulsion. Consequently, unwarned statements that are otherwise voluntary within the meaning of the Fifth Amendment must nevertheless be excluded from evidence under Miranda." State v. Lozano, 76 Wash. App. 116, 119, 882 P.2d 1191 (1994).

In Lozano, a community corrections officer (CCO) failed to give Miranda warnings to a defendant before asking if she had "anything on her person." Id. at 117-18, 882 P.2d 1191. The CCO explained she would be searched anyway. Id. at 118, 882 P.2d 1191. The defendant then reached into her pocket, took out a tissue and placed it on the CCO's desk. Id. Heroin was found in the tissue. The Lozano court ruled the act of producing the contraband was testimonial and inadmissible under Miranda, but allowed circumstantial evidence to connect Ms. Lozano to the substance placed on the desk because it was not connected to the testimonial act. Id. at 122, 882 P.2d 1191.

Here, the testimonial act was inextricably interwoven with the production of the heroin, precluding direct evidence of the testimonial act. Ms. Spotted Elk directly handed Officer Linn the heroin in response to his question as a testimonial act; she did not place it on a desk or leave it in the back seat of a patrol car as was discussed in Lozano. Id. In this case, circumstantial evidence was not offered or reasonably available to establish possession, solely the inadmissible direct evidence. This difference distinguishes Ms. Spotted Elk's case from Lozano.

Regarding the testimonial act, the similarities between cases are striking; without Miranda warnings, Ms. Spotted Elk responded to a question from Officer Linn that was nearly identical to that asked in Lozano. Id. at 118, 882 P.2d 1191. In this arrest situation, the context was certainly as coercive, if not more so, than in Lozano, where the defendant waited in the CCO's office pending transport to jail. Id. at 117-18, 882 P.2d 1191.

Moreover, the officer knew Ms. Spotted Elk to be a drug user. He was concerned with and suspected both weapons and drugs. Given the broad nature of his question, which, according to this record, lacked his usual proviso explaining he was looking for weapons, needles or items that could poke or stick him, he should have known his query was reasonably likely to elicit an incriminating response. See State v. Birnel, 89 Wash. App. 459, 467, 949 P.2d 433 (1998)

. And, because the question went beyond the scope of a precautionary inquiry regarding weapons, the question reflected a measure of compulsion beyond that inherent in custody. Id. Accordingly, the circumstances in this case were sufficiently coercive to constitute an interrogation for Miranda purposes.

The State persuaded the trial court that Officer Linn's question fell within the officer safety exception to the Miranda requirements. In Washington, "it is not a violation of either the letter or spirit of Miranda for police to ask questions which are strictly limited to protecting the immediate physical safety of the police themselves and which could not reasonably be delayed until after warnings are given." State v. Lane, 77 Wash.2d 860, 863, 467 P.2d 304 (1970).

In Lane, while one officer read Mr. Lane his Miranda rights, another officer specifically asked the defendant if he had a gun. Lane, 77 Wash.2d at 861, 467 P.2d 304. The Lane court noted the officer's question was related solely to officer safety with "good reason to believe" the defendant "was armed and potentially dangerous." Id. at 862-63, 467 P.2d 304. Division One of this court subsequently extended this exception to Miranda to a situation where the officer was trying to ascertain the location of a stabbing victim. State v. Richmond, 65 Wash.App. 541, 545-46, 828 P.2d 1180 (1992).

Lane and Richmond support a series of propositions. The police may ask a question of a defendant prior to Miranda warnings if (1) the question is solely for the purpose of officer or public safety, and (2) the circumstances are sufficiently urgent to warrant an immediate question. Lane, 77 Wash.2d at 862-63, 467 P.2d 304; Richmond, 65 Wash.App. at 544-45, 828 P.2d 1180. If both conditions are met, the question does not constitute an interrogation in violation of Miranda....