State v. Stephens

• Decision Date: 12 May 2020
• Docket Number: 36542-5-III
• Court: Court of Appeals of Washington
• Parties: STATE OF WASHINGTON, Respondent, v. KENNETH LEROY STEPHENS, Appellant.

STATE OF WASHINGTON, Respondent, v. KENNETH LEROY STEPHENS, Appellant.

No. 36542-5-III

Court of Appeals of Washington, Division 3

May 12, 2020

UNPUBLISHED OPINION

FEARING, J.

This appeal asks when is an arrest an arrest? A law enforcement officer handcuffed appellant Kenneth Stephens and advised him of his Miranda rights, then questioned Stephens before informing him he was under arrest. Stephens contends the officer arrested him before questioning him and that a statement confessing to theft must be suppressed in addition to methamphetamine found during a search incident to arrest. The State argues that the arrest occurred only after the officer announced the arrest. We agree with Stephens and reverse his conviction for possession of a controlled substance.

FACTS

An employee at Stan's Merry Mart, in Wenatchee, called 911 after seeing a man in the store who she believed stole video equipment earlier in the week. The man was later discovered to be Kenneth Stephens. The employee described the man to 911 as white, in his mid-thirties, and wearing a black baseball cap and a black and gray jacket. The employee stated the man had not stolen anything that day, but video footage showed him stealing cameras on previous days. According to the employee, the store wanted to press charges for the previous thefts. The employee further advised 911 that the suspect left the store and was riding a bike heading south on Mission Street.

Wenatchee Police Officer Albert Gonzalez responded to the Stan's Merry Mart 911 call and went to Mission Street. Officer Gonzalez located Kenneth Stephens, who rode a bike south on Mission Street and matched the caller's description of the alleged thief's clothing, race, and sex. Stephens however, did not match the age described by the employee as he was in his late-fifties. Gonzalez recognized Stephens due to previous contacts.

Officer Albert Gonzalez informed Kenneth Stephens that 911 received a call about him from Stan's Merry Mart. Stephens dismounted his bicycle. He denied any involvement in a theft. Officer Gonzalez told Stephens he could not leave. Gonzalez then handcuffed Stephens and read the Miranda warnings from a card.

After Mirandizing and cuffing Kenneth Stephens, Officer Albert Gonzalez began questioning. Stephens continued to deny any knowledge about stolen cameras. Gonzalez told Stephens that witnesses could identify him in video footage. Stephens then admitted to stealing the cameras and selling them for $50. Stephens told Officer Gonzalez that he could retrieve the cameras if allowed to go free. Angela Thresher, an employee of Stan's Merry Mart, arrived at the scene and positively identified Stephens as the suspect. Gonzalez then told Stephens that he was under arrest. Gonzalez searched Stephen's person and located two bags with a crystal substance and a pipe coated in a crystal residue. At the Washington State Patrol Crime Laboratory, the substance on the pipe tested positive for methamphetamine.

PROCEDURE

The City of Wenatchee initially charged Kenneth Stephens, in Chelan County District Court, with third degree theft. Later the city dismissed its charge and the State of Washington filed, in superior court, an information charging Stephens with first degree trafficking in stolen property and unlawful possession of a controlled substance, methamphetamine.

Kenneth Stephens moved to suppress all evidence obtained as a result of his detainment by Officer Albert Gonzalez. Stephens contended that Officer Gonzalez placed him under custodial arrest when he first handcuffed him and that Gonzalez lacked probable cause to arrest him. Kenneth Stephens also filed a motion to dismiss the charges due to a delay in the State's filing charges, during which delay law enforcement allegedly destroyed evidence.

The trial court denied the motion to suppress evidence. The court entered findings of fact, two of which Kenneth Stephens challenges on appeal:

2.5 Officer Gonzalez detained Defendant to investigate the reported theft of the video cameras. Officer Gonzalez advised Defendant of his Constitutional (Miranda) rights from a printed card, and Defendant stated he understood and was willing to speak.

2.6 Officer Gonzalez advised Defendant that they were investigating a theft of some video cameras from Stan's and that Defendant had been positively identified by employees; Defendant admitted to stealing the items and selling them. At this point, Defendant was informed he was under arrest, arrested, and searched incident to arrest (upon which meth was found on Defendant's person).

Clerk's Papers (CP) at 173 (emphasis added) (alteration in original). The trial court concluded, based on the call from the Stan's Merry Mart employee and Officer Gonzalez's reasonable conclusion that Kenneth Stephens matched the description of the person in the store, that Gonzalez had reasonable suspicion to conduct an investigatory stop of Stephens. The trial court also denied the motion to dismiss based on an alleged violation of speedy trial rights.

The trial jury convicted Kenneth Stephens of unlawful possession of a controlled substance, methamphetamine. The jury found Stephens not guilty of trafficking in stolen property in the first degree.

The sentencing court denied Kenneth Stephens's request for a residential drug offender sentencing alternative. The court also denied Stephens's wish for credit for time already served. The sentencing court imposed $500 in legal financial obligations with a stipulation that the obligations bear interest from the date of the judgment.

LAW AND ANALYSIS

Kenneth Stephens assigns six errors to trial court proceedings. First, the trial court erred when refusing to suppress the evidence of the methamphetamine found on his person because Officer Albert Gonzalez arrested him before questioning him and Gonzalez lacked probable cause to arrest him. Second, the trial court erred when refusing to dismiss charges based on the purported infringement of Stephens's speedy trial rights. Third, insufficient evidence supported the conviction for possession of a controlled substance. Fourth, the sentencing court improperly denied Stephens a residential drug offender sentencing alternative. Fifth, the sentencing court erroneously failed to give Stephens credit for time already served in jail. Sixth, the sentencing court mistakenly imposed interest on the legal financial obligations assessed. Because we accept Kenneth Stephens's first assignment of error, we do not address his other assignments.

This appeal presents unique circumstances. Almost immediately after first confronting Kenneth Stephens, Officer Albert Gonzalez placed Stephens in handcuffs and read him the Miranda rights. Thereafter, Gonzalez asked Stephens about his potential involvement in the theft of cameras from Stan's Merry Mart. After Stephens confessed guilt Gonzalez told Stephens that he was under arrest. Officer Gonzalez conducted a search incident to arrest and found methamphetamine on Stephens's person. Typically, the law enforcement officer approaches a suspect and asks the suspect about involvement in a crime before handcuffing him and advising him of constitutional rights. Typically, the officer advises the accused of his Miranda rights only after informing the accused he is under arrest.

The obverse order of events attending to the intercourse between Officer Albert Gonzalez and Kenneth Stephens requires us to decide whether Gonzalez arrested Stephens when handcuffing Stephens and reading Stephens the Miranda warnings or later when announcing the arrest. If we rule that Gonzalez only arrested Stephens after the confession and upon announcing the arrest, then we would decide that the handcuffing constituted an investigatory stop, for which Gonzalez needed only a reasonable articulable suspicion that Stephens had engaged in criminal activity. State v Acrey, 148 Wn.2d 738, 747, 64 P.3d 594 (2003). If we conclude that Officer Gonzalez arrested Stephens when handcuffing him, we would rule that Gonzalez needed probable cause before restraining and questioning him. State v Flores, 186 Wn.2d 506, 520, 379 P.3d 104 (2016). The latter rule presents a higher standard for the State to fulfill.

We encounter limited difficulty in discerning the law of arrest because of loose terminology used in court opinions. The law uses many and often overlapping terms for various interactions between a law enforcement officer and a suspect or for that matter any citizen regardless of suspect designation. The words and expressions include "social contact," "stop," "investigative stop," "brief investigative stop," "stop and frisk," "Terry stop," "Terry investigative stop," "detainment" "detention," "limited detention," "involuntary detention," "investigatory detention," "brief investigative detention," "seizure," "present confinement," "restraint," "physical restraint," "physical intrusion," "arrest," "custody," "custodial arrest," "full custodial arrest," and "formal arrest." State v. Mecham, 186 Wn.2d 128, 138, 380 P.3d 414 (2016); State v. Flores, 186 Wn.2d 506, 512 (2016); State v. Patton, 167 Wn.2d 379, 387, 219 P.3d 651 (2009); State v. Reichenbach, 153 Wn.2d 126, 135, 101 P.3d 80 (2004); State v. Lorenz, 152 Wn.2d 22, 36-37, 93 P.3d 133 (2004); State v. Acrey, 148 Wn.2d at 746 (2003); State v. Kennedy, 107 Wn.2d 1, 4, 726 P.2d 445 (1986); State v. Rupe, 101 Wn.2d 664, 683-84, 683 P.2d 571 (1984); State v. Marcum, 149 Wn.App. 894, 902-03, 910, 205 P.3d 969 (2009); State v. Salinas, 169 Wn.App. 210, 217, 279 P.3d 917 (2012); State v. Gering, 146 Wn.App. 564, 566-67, 192 P.3d 935 (2008); State v. Radka, 120 Wn.App. 43, 48-50, 83 P.3d 1038 (2004). For purposes of our analysis, we label any contact between the officer and a citizen...