august LED TABLE OF CONTENTS

BRIEF NOTES FROM THE UNITED STATES SUPREME COURT...... 2

UNDER THE 4TH AND 5TH AMENDMENTS OF THE U.S. CONSTITUTION, A DOMESTIC VIOLENCE SUSPECT WHO REFUSED TO IDENTIFY HIMSELF WHILE LAWFULLY BEING HELD IN A TERRY STOP COULD BE CONVICTED UNDER THE CLEAR WORDING OF A NARROW NEVADA “STOP-AND-IDENTIFY” STATUTE (BEWARE -- WASHINGTON STATE HAS NO SUCH STATUTE)

Hiibel v. Sixth Judicial Dist of Nevada, Humboldt County, __ S.Ct. __, 2004 WL 1373207 (2004)..2

IN HABEAS REVIEW, MIRANDA “CUSTODY” QUESTIONS RELATING TO THE RELEVANCE OF YOUTH AND INEXPERIENCE OF SUSPECTS DISCUSSED BUT NOT FULLY RESOLVED BY THE SUPREME COURT

Yarborough v. Alvarado, 124 S.Ct. 2140 (2004)...... 4

Washington STATE Supreme Court...... 7

UNDER WASHINGTON STATE CONSTITUTION’S ARTICLE I, SECTION 7, OFFICER’S ROUTINE REQUEST TO NON-VIOLATOR PASSENGER TO SHOW ID DURING VEHICLE STOP IS “SEIZURE” REQUIRING INDEPENDENT JUSTIFICATION

State v. Rankin, ___ Wn.2d ___, ___ P.3d ___, 2004 WL 1274490 (2004) ...... 7

STATE LOSES ON ISSUES OF 1) FORCED ENTRY TO ENFORCE CIVIL WARRANT BASED ON RCW 10.31.040; 2) “COMMUNITY CARETAKING” ENTRY; AND 3) HARMLESS ERROR; STATE WINS ON ISSUES OF 4) CO-OCCUPANT STATUS FOR PURPOSES OF CONSENT SEARCH AND 5) “FRUIT OF THE POISONOUS TREE”

State v. Thompson, ___ Wn.2d ___, ___ P.3d ___ ,2004 WL 1403323 (2004) ...... 13

EVIDENCE HELD SUFFICIENT TO SUPPORT CONVICTION FOR POSSESSING METHAMPHETAMINE

State v. Goodman, 150 Wn.2d 774 (2004)...... 20

BRIEF NOTES FROM THE Washington STATE Supreme Court...... 22

BREATH TEST INSTRUMENTS THAT WERE CERTIFIED UNDER A FORMER PROTOCOL DID NOT MEET TESTING STANDARDS OF WAC 448-13-035

Seattle v. Clark-Munoz, ___ Wn.2d ___, ___ P.3d ___, 2004 WL 1468585 (2004)...... 22

UPDATE RE REDMOND V. MOORE

City of Redmond v. Moore, __ Wn.2d __, __P.3d __, 2004 WL 1207870 (2004)...... 23

NEXT MONTH...... 23

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BRIEF NOTES FROM THE UNITED STATES Supreme Court

(1)UNDER THE 4TH AND 5TH AMENDMENTS OF THE U.S. CONSTITUTION, A DOMESTIC VIOLENCE SUSPECT WHO REFUSED TO IDENTIFY HIMSELF WHILE LAWFULLY BEING HELD IN A TERRY STOP COULD BE CONVICTED UNDER THE CLEAR WORDING OF A NARROW NEVADA “STOP-AND-IDENTIFY” STATUTE (BEWARE -- WASHINGTON STATE HAS NO SUCH STATUTE) -- In Hiibel v. Sixth Judicial District of Nevada, Humboldt County, __ S.Ct. __, 2004 WL 1373207 (2004), the United States Supreme Court rules, 5-4, that Larry D. Hiibel’s conviction under a Nevada stop-and-identify statute did not violate Hiibel’s rights under the Fourth or Fifth Amendments of the United States Constitution.

Preliminary LED Editorial Note: In our comments on pages ___ below, following our description of the Hiibel decision, we explain our view that this U.S. Supreme Court decision will not affect enforcement actions of Washington officers. Our primary reason for that view is that Washington does not have a stop-and-identify statute like the Nevada statute at issue in Hiibel. There may also be constitutional barriers to enforcement of such a law under the Washington constitution, though questions in that regard would have to be tested in the Washington appellate courts if a similar stop-and-identify statute were to be adopted by the Washington Legislature.

Factual and procedural background

A Nevada county deputy sheriff responded to a call regarding a possible domestic violence situation. He approached the suspect who was standing near a vehicle parked alongside the roadway. The officer directed the suspect to identify himself, and the suspect repeatedly refused to do. After warning the suspect that he would be arrested if he continued in his refusal, the officer arrested the suspect under a Nevada stop-and-identify statute that reads in relevant part as follows:

1. Any peace officer may detain any person whom the officer encounters under circumstances which reasonably indicate that the person has committed, is committing or is about to commit a crime.

.....

3. The officer may detain the person pursuant to this section only to ascertain his identity and the suspicious circumstances surrounding his presence abroad. Any person so detained shall identify himself, but may not be compelled to answer any other inquiry of any peace officer.

Hiibel was convicted based on his failure to identify himself, and he was fined $250. Hiibel appealed and lost in the Nevada appellate court system. He then obtained review of his conviction by the U.S. Supreme Court. The U.S. Supreme Court affirmed his conviction.

Majority opinion

Justice Kennedy authors the majority opinion and is joined by Chief Justice Rehnquist and Associate Justices Scalia, Thomas, and O’Connor. He begins his analysis by explaining that 20 other states (Washington is not among them) have stop-and-identify statutes that require persons seized in Terry stops to identify themselves. The majority opinion then traces some of the history of U.S. Supreme Court opinions in this sub-area of constitutional law. That history does not produce a clear answer, as past opinions could be read to support arguments on either side of the issue in Hiibel. The opinion indicates that one thing that does appear to be fairly clear is that, in order to be constitutional, stop-and-identify statutes must be clearly and narrowly written (for instance, along the lines of the clear and narrow Nevada statute). The opinion then proceeds to explain the current thinking of the Supreme Court majority on the Fourth and Fifth Amendment issues in the Hiibel case.

Under the Fourth Amendment, the Hiibel majority opinion explains, it does not constitute a “seizure” for an officer merely to ask a person (whether in a mere contact or a Terry stop) standing on the roadside to identify himself. A person against whom an officer does not have at least reasonable suspicion that would justify a Terry stop cannot be compelled to provide identification. On the other hand, a lawfully seized suspect can be so compelled. Thus, the Terry detainee can be convicted for violating a stop-and-identify statute: (1) if the statute is sufficiently narrow and clear; (2) the officer has made the Terry stop based on reasonable suspicion; and (3) the officer’s request that the suspect identify himself is reasonably related to the circumstances that justified the stop. In Hiibel, all three requirements were met, the majority holds. The statute was proper, the officer has reasonable suspicion as to DV, and the officer’s request for ID was a commonsense inquiry during investigation of the potential domestic violence situation.

Under the Fifth Amendment, the Hiibel majority explains, there is protection against compelled, self-incriminating testimonial statements and acts. While asking a person to identify himself probably does call for a testimonial act, the opinion continues, the nature of the information requested almost never will be, in and of itself, incriminating. Here, defendant Hiibel was not being asked for incriminating information, as the only basis for his refusal appeared to be his belief that his identity was none of the deputy’s business. Therefore, the Fifth Amendment of the U.S. Constitution was not implicated, the Hiibel majority holds.

Dissenting opinions

Justice Stevens writes a dissenting opinion arguing that Hiibel’s Fifth Amendment right against self-incrimination was violated by his conviction under the Nevada statute. Justice Breyer writes a dissenting opinion (joined by Justices Ginsburg and Souter) arguing that Hiibel’s Fourth Amendment rights were violated.

Result: Affirmance of Nevada conviction of Larry D. Hiibel for violating the Nevada stop-and-identify statute.

LED EDITORIAL COMMENTS:

In State v. White, 97 Wn.2d 92 (1982), the Washington Supreme Court invalidated parts of the former “obstructing” statute at RCW 9A.76.020, discussing, but not resolving, some of the Fourth Amendment issues that were addressed in Hiibel. The White majority opinion primarily focused on the unconstitutional vagueness of the former obstructing statute and on the Washington constitution’s exclusionary remedy barring admission of the fruits of an arrest made under an unconstitutional statute. It is not clear whether, over two decades later, the Washington Supreme Court would come out differently from the U.S. Supreme Court’s Fourth and Fifth Amendment constitutional rulings in Hiibel based on “independent grounds” under the Washington Constitution. However, at this point, we think that is an academic question. That is because Washington does not have a narrowly drawn stop-and-identify statute like the Nevada statute that was before the Supreme Court in Hiibel.

Because Washington State does not have a stop-and-identify statute like Nevada’s statute requiring identification during Terry stops, we think that Washington officers lack statutory authority to arrest for “obstructing” or for any other current Washington crime in this circumstance. Washington officers are, however, free to ask suspects in Terry stops to identify themselves or to show ID documents, and also may do so when conversing with pedestrians during non-Terry “citizen-contacts” (however, as to requesting ID from non-violator MV passengers, see the Washington Supreme Court’s Rankin decision digested below in this month’s LED at 7-13).

As always, officers should check with their local prosecutors and legal advisors for their views on the issues discussed here.

(2)IN HABEAS REVIEW, MIRANDA “CUSTODY” QUESTIONS RELATING TO THE RELEVANCE OF YOUTH AND INEXPERIENCE OF SUSPECTS DISCUSSED BUT NOT FULLY RESOLVED BY THE SUPREME COURT -- In Yarborough v. Alvarado, 124 S.Ct. 2140 (2004), a 5-4 majority of the United States Supreme Court rejects a request for habeas relief sought by a defendant convicted of second degree murder and robbery. Defendant argued that he should have been given Miranda warnings prior to station-house questioning by police. The focus of the case at the U.S. Supreme Court was the defendant’s age (seventeen-and-a-half) and his relative inexperience with the criminal justice system.

Habeas review standard

Under federal statutes governing habeas corpus review (federal court review after state court review is completed), a person challenging, a state court conviction on federal constitutional grounds cannot prevail merely by showing that a prejudicial error was committed in the state courts. Rather, the habeas challenger must show that the state courts unreasonably failed to apply established federal constitutional standards. This is a difficult standard to meet. Here, the Alvarado majority rules that defendant failed to meet the standard.

Factual and procedural background

Alvarado helped Paul Soto try to steal a truck. During the robbery attempt, Soto shot and killed the truck's owner. About a month later, Detective Cheryl Comstock contacted Alvarado’s parents and asked them if they would bring him in for questioning. Alvarado was 17-and-a-half years old at the time. His parents brought him to the police station and waited in the lobby during the interview.

Before questioning began, Detective Comstock told Alvarado and his parents that the questioning would not take too long (the parents later testified that they asked to be present for the interview and that Comstock rebuffed them). Comstock took Alvarado to a small room where only the two of them were present for the consenting recorded session. The interview was conducted in a relatively friendly, low-key style. It lasted about two hours. Alvarado was not given Miranda warnings, nor was he told that he was free to leave or that he did not have to answer questions. But Detective Comstock twice asked Alvarado if he needed a break.

At first Alvarado denied being present at the shooting, but with some low-key prodding from the detective that focused on Soto’s role as instigator and leader of the crime, Alvarado slowly began to change his story. He finally admitted that he had helped Soto try to steal the victim's truck and that Alvarado had hidden the gun after Soto shot and killed the owner. When the interview was over after about two hours, Comstock returned Alvarado to his parents, who drove him home.

After the State of California charged Alvarado with murder and attempted robbery, the trial court denied his motion to suppress his interview statements on Miranda grounds. In affirming Alvarado's conviction, the District Court of Appeal ruled that Miranda warnings were not required because Alvarado had not been in custody during the interview. The Court of Appeals concluded that a reasonable person would have felt at liberty to terminate the questioning and to leave. The Federal District Court agreed with the state court on habeas review, but the Ninth Circuit Court of Appeals reversed, holding that the state court erred in failing to account for Alvarado's youth and inexperience when evaluating whether a reasonable person in his position would have felt free to leave the interview. The Ninth Circuit Court of Appeals held that the state court's error warranted habeas relief under the federal habeas statute because state court review "resulted in a decision that . . . involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court."

Justice Kennedy’s lead opinion

Justice Kennedy writes an opinion joined by Chief Justice Rehnquist and Justices Scalia, Thomas and O’Connor. The opinion indicates that, under the facts of this case (the details of which are discussed at considerably greater length in the opinion than they are in this LED entry), the questioning could have been reasonably determined to be either custodial or non-custodial for Miranda purposes. Whether “custody” exists is a purely objective question, not depending on the uncommunicated subjective beliefs of the officer or of the person being questioned. “Custody” exists where “a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave.” The opinion asserts that it was not unreasonable for the California state courts to conclude that Alvarado was not in custody when Detective Comstock questioned him.

The Ninth Circuit’s opinion had focused on two things – Alvarado’s youth and his inexperience with the criminal justice system. Justice Kennedy suggests that focus on age and inexperience is never appropriate when looking at the question of “custody,” because this leads one into largely subjective considerations that would be difficult for police to assess at the time of questioning when trying to determine whether Miranda warnings were required. Age and inexperience are relevant considerations when considering voluntariness of waiver or voluntariness of confessions, the opinion indicates, but not when looking at “custody.” At least, considering the case in light of the deferential habeas review standard, it was reasonable under established law for the California courts not to focus on age and inexperience of the suspect in their “custody” analysis.

Justice O’Connor’s concurring opinion

Justice O’Connor gives mixed and vague signals by signing onto the Kennedy opinion but then writing a concurrence that concedes that in some unspecified circumstances the age of a suspect may be a relevant factor in determining whether a suspect is in “custody” per Miranda.

Justice Breyer’s dissenting opinion

Justice Breyer writes a dissenting opinion joined by Justices Souter, Stevens, and Ginsburg. The dissent argues that youth of a suspect is a factor that must be taken into account in deciding whether a suspect was in “custody.” The dissent accuses the majority of raising a “red herring” with its discussion of the “inexperience” factor. In this discussion of the “inexperience” question, it is arguable that the dissent concedes that inexperience of a suspect does not bear on the “custody” question.

Result: Reversal of Ninth Circuit Court of Appeals decision; reinstatement of second degree murder and attempted robbery conviction of Michael Alvarado.

LED EDITORIAL COMMENTS:

1) General comments about “tactical” un-Mirandized questioning

We recognize that officers will sometimes make a considered decision, based on all of the circumstances and on their wealth of experience, that un-Mirandized questioning will be more fruitful. When officers make that difficult decision, extra effort must be made to make clear to the suspect that the circumstances of questioning are non-custodial. In that regard, we think that officers are on pretty thin ice -- regardless of the age of their suspects -- in conducting such un-Mirandized interrogations at the police station unless they first tell their suspects (who, by definition under our assumed scenario, are voluntarily there in the first place) that the suspects do not have to answer the questions and that they can leave at any time. Officers conducting such “tactical” un-Mirandized questioning should be prepared to allow the suspect to leave after the questioning is completed. Also, in light of some discussion tying the “custody” question to officer-deception in past Washington appellate court decisions (see, for instance, State v. Hensler, 109 Wn.2d 357 (1987) (non-deceptive, non-custodial questioning regarding illegal drug possession); State v. Walton, 67 Wn. App. 27 (Div. I, 1992) Jan 93 LED:09 (non-deceptive, non-custodial questioning of MIP suspect); State v. Ferguson, 76 Wn. App. 560 (Div. I, 1995) May 95 LED:10 (ok to engage in non-deceptive, non-custodial questioning of suspect as scene of MVA), officers probably should not use deception that would be permissible with a Mirandized suspect. The Washington appellate courts 1) have only occasionally talked about “deception” and custody; 2) have never explained the source of the test or its specifics for application; and 3) have never excluded a statement based on deception during non-custodial questioning. Nonetheless, the above-noted decisions lead us to suggest that deception be avoided in tactical, non-custodial interrogations.

2) Specific comments about “custody” and suspects’ youth and inexperience

For a number of reasons, we suggest caution by Washington officers reading the Alvarado decision. Washington officers would be well-advised to consider both juvenile status and experience of juvenile suspects in deciding whether a situation is “custodial” such that Miranda warnings are needed. We will provide three reasons for giving this cautious suggestion.

First, it must be noted that the decision was rendered in a habeas corpus case; arguably (though not likely), the Supreme Court could vote differently where a pure “custody” question was raised in a direct appeal where the deferential review standard for habeas corpus review did not apply.