IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON STATE OF WASHINGTON, Respondent,

v. MICHAEL PARIS DARE, Appellant. No. 72943-8- DIVISION ONE

UNPUBLISHED FILED: February 29. 2016 

### Cox, J. — Under Miranda v.Arizona,1 the State may not use incriminating statements a defendant made during a custodial interrogation unless officers informed the defendant of certain constitutional rights. Because Michael Dare
was not in custody when he made the statements to the police officerthat he sought to suppress below, we affirm. In April 2014, Washington State Patrol Sergeant Chris Caiola was on duty in Snohomish County, traveling alone in his patrol vehicle. In an adjacent lane, he noticed a black Honda Accord. The driver appeared to be text messaging while driving. While stopped at a red light, Sergeant Caiola observed the driver nearly strike the car in front of him. SergeantCaiola moved behind the Accord 

### and activated his emergency lights. When the driver, later identified as defendant Michael Dare, failed to stop, Sergeant Caiola used his public address 

### system to instruct him to pull over. The careventually turned into a parking lot. 384 U.S. 436, 444-45, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).No. 72943-8-1/2 Sergeant Caiola approached the car's open driver's side window. He observed the driver and three passengers, all ofwhom appeared nervous. 

### Sergeant Caiola explained that he stopped the car because Dare was texting 

### while driving, and asked for license, registration, and proof ofinsurance. Dare
was unable to produce any ofthese documents. When Sergeant Caiola asked 

### Dare why he didn'ttry to look forthe car's registration and proofofinsurance, Dare told him the car wasn't his—that he had borrowed itfrom a female acquaintance, whose nickname was "Satan." To determine the car's ownership, Sergeant Caiola asked a police 

### dispatcherto checkthe license plate number. After noticing thatthe vehicle 

### identification number (VIN) on the car's dashboard did not match the VIN thatthe 

### dispatcherreported as matching the plate number, SergeantCaiola asked the dispatcherto checkthe car's VIN. He directed Dare and his passengers to "stay still" and keep their hands where he could see them. The dispatchertold Sergeant Caiola thatthe car had been reported stolen. 

### SergeantCaiola did not tell Dare he had learned the car was stolen. Nor did he orderanyone out ofthe car, handcuffanyone, ordraw his service weapon. 

### Heasked dispatch to send backup officers, moved to a place "somewhatbehind" the car, and waited for assistance. 

### When one ofthe car's passengers began to "get a littleagitated," Dare 

### asked SergeantCaiola what was going on. SergeantCaiolaanswered that he 

### thought the car "mightbe stolen." Dare exclaimed, "I knewit!" SergeantCaiolaNo. 72943-8-1/3


### asked Dare why he would say that. Dare told him "inso manywords, thatthis 

### gal Satan is known for stealing cars or he's known herto steal cars inthe past." Four or five additional officers arrived, and they and Sergeant Caiola 

### ordered Dare and his passengers out ofthe car one by one, placing them in 

### handcuffs. Sergeant Caiola told Dare he was under arrest and read him his 

### Miranda rights, which Dare confirmed he understood. Then Sergeant Caiola and Dare spoke furtherfor several minutes about how Dare came to be drivingthe
car. Dare did not indicate that he did notwish to speakto SergeantCaiola, nor 

### did he askto speakto an attorney. SergeantCaiola drove Dare to the Snohomish County Jail and booked him into custody. 

### The State charged Dare withpossession of a stolen vehicle. The 

### disputed elementof the charge was Dare's knowledge that the carwas stolen. The defense theory was that Dare unwittingly borrowed a stolen carfrom an acquaintance. The State moved for admission of Dare's statements under CrR 3.5, and 

### SergeantCaiola testified at a pretrial hearing. In its written findings and 

### conclusions following the hearing, the trial courtidentified three separate verbal interactions between Dare and Sergeant Caiola that merited analysis underCrR 3.5. The trial court ruled that SergeantCaiola detained Dare and his passengers 

### as part of a legitimateTerry2 stop and investigation and thatduring the portion of the detention directlyfollowing the traffic stop, Sergeant Caiolawas not required 2Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).No. 72943-8-1/4
to inform Dare of his Miranda rights. However, the court ruled thatfrom the point when "Trooper Caiola formed the suspicion the vehicle was likely stolen, and formed the intentto detain the occupants ofthe vehicle, and notto allowthem to leave the scene," Dare was "in custody such that Miranda warnings were 

### required prior to any subsequent interrogation."3 Notwithstanding this requirement, the court ruled that Dare's exclamation, "I knew it,"was a "volunteered spontaneous statement" thatwas "notthe product of custodial interrogation . . . [and] not affected by the absence of Miranda warnings." The courtfound, however, that Sergeant Caiola's follow-up question
was "reasonably calculated to lead to a substantive statement by the defendant," and therefore constituted custodial interrogation. Thus, because Dare had not received Miranda warnings, his statements aboutwhy he "knew it" would be inadmissible inthe State's case-in-chief, though admissible for impeachment purposes. Finally, the court ruled that Dare's post-Miranda statements were "voluntary, and not coerced," and thus admissible for all purposes. Sergeant Caiola and Dare both testified attrial. Dare testified that he could not remember exactly what he said to Sergeant Caiola, butthat he did not 

### say he knew the carwas stolen. He testified that if he did say, "I knew it," he meantthat he knew they were introuble, notthat he knew the carwas stolen. Thejury convicted Dare as charged.



### 3Clerk's Papers at 28.No. 72943-8-1/5


### Dare appeals. The State cross-appeals the trial court's determination that Dare was incustodyfor purposes ofMiranda at any point before his formal
arrest. SUPPRESSION MOTION We review a trial court's denial of a motion to suppress by determining if 

### substantial evidence supports the trial court's findings offact and thosefindings 

### supportthe court's conclusions oflaw.4 Substantial evidence exists if it is sufficientto persuade a fair-minded, rational person ofthe truth ofthe matter asserted.5 

### Determining whether a defendant is incustody is a mixed question of law and fact.6 This court defers to the trial court's findings offact but reviews the 

### court's legal conclusions de novo.7 Unchallenged findings offacts and those 

### findings supported by substantial evidence are verities onappeal.8 CustodialInterrogation The Fifth Amendmentto the United States Constitution states that "[n]o 

### person . . . shall be compelled in any criminalcaseto be a witness against himself." To preserve an individual's rightagainstcompelled self-incrimination, 

### police must inform a suspectof this right before subjecting him or her to "(1) 4State v. Jones, 186Wn. App. 786, 789, 347 P.3d 483 (2015); State v. Fuentes, 183 Wn.2d 149, 157, 352 P.3d 152 (2015). 5State v. Lew, 156 Wn.2d 709, 733, 132 P.3d 1076 (2006). 6See In re Pers. Restraint ofCross, 180 Wn.2d 664, 681 n.7, 327 P.3d 

### 660 (2014)(recognizing that "Miranda issues involve a mixed question of law and fact"). 7 Id at 681. 8State v. Homan, 181 Wn.2d 102, 106, 330 P.3d 182 (2014).No. 72943-8-1/6


### custodial (2) interrogation (3) by an agent ofthe State."9 When these conditions
are present but Miranda warnings are not given, the suspect's "self-incriminating statements ... are presumed to be involuntary, and to violate the Fifth Amendment."10 A trial court must exclude such statements from the evidence at trial.11 Dare contends thatfrom the pointwhen Sergeant Caiola told him to stay still and keep his hands infront of him, he was subjected to custodial interrogation. Therefore, he argues, because Sergeant Caiola did not administer Miranda warnings atthat point, the trial courterred by admitting Dare's statements. We disagree. To determine whether a person is "in custody," the state supreme court has adopted the objective standard articulated by the United States Supreme 

### Court inBerkemerv. McCartv.12 The key question in this test iswhethera "reasonable person in a suspect's position would have felt that his or herfreedom 

### was curtailed to the degree associated with a formal arrest."13 Courts have recognized that investigatory stops are generally brief, public, and "'substantially

9Miranda. 384 U.S. at 444; State v. Heritage, 152 Wn.2d 210, 214, 95 P.3d 345 (2004) (citing State v. Sargent, 111 Wn.2d 641, 647, 762 P.2d 1127 (1988)). 

### 10 Sargent, 111 Wn.2d at 648; accord Heritage. 152 Wn.2d at 214. 11 Miranda, 384 U.S. at444; State v. Warner, 125 Wn.2d 876, 888, 889 P.2d 479 (1995). 12 468 U.S. 420, 104 S. Ct. 3138, 82 L Ed. 2d 317 (1984); Heritage. 152 Wn.2d at 217-18. 

### 13 Heritage, 152Wn.2d at 218 (citing Berkemer. 468 U.S. at441-42).No. 72943-8-1/7 

### less police dominated' than the police interrogations contemplated byMiranda."14 Consequently, "Washington courts agree that a routine Terry stop is not custodial forthe purposes of Miranda."15 We agree with the trial courtthat Dare's exclamation of "Iknew it!" was a 

### spontaneous, voluntary statementto which Miranda did not apply.16 However,
we disagree with the court's conclusions that at the point Sergeant Caiola "formed the intent" to not allow Dare and his passengers to leave, Dare was in custody and Miranda applied, and therefore Caiola's follow-up question constituted custodial interrogation. Contrary to the trial court's analysis, the relevant standard to determine custody is notthe subjective intent ofthe officer. Rather, as explained above, the standard is objective and focuses on the suspect. Here, a reasonable person in Dare's position would not have believed his freedom was curtailed to the extent of a formal arrest until police ordered him out ofthe car, placed him in handcuffs, 

### and gave him Miranda warnings. Dare's beliefcould not hinge on any subjective intent or belief ofthe officer.



### 14 Heritage, 152Wn.2d at 218 (internal quotation marks omitted) (quoting Berkemer. 468 U.S. at 439). 

### 15 Heritage. 152 Wn.2d at 218 (citing State v. Hilliard. 89 Wn.2d 430, 432, 435-36, 573 P.2d 22 (1977)). 16 See State v. Ortiz. 104Wn.2d 479, 484, 706 P.2d 1069 (1985) 

### (generally, statement is voluntary when spontaneous, unsolicited, and not the product ofcustodial interrogation); State v. Miner. 22 Wn. App. 480, 483, 591 P.2d 812 (1979) (spontaneous, voluntary, and unsolicited statements not coerced under Miranda).No. 72943-8-1/8
When Dare told Sergeant Caiola that he "wouldn't put itpast" Satan to have stolen the car Dare was driving, he was not in custody. Therefore, 

### Sergeant Caiola's "why"question was not custodial interrogation. Until Dare's formal arrest, the investigatory stop did not escalate to custody necessitating Miranda warnings. Because Dare was not incustody atthe time of his prearrest statements, we need not address his allegation that an impermissible two-step 

### interrogation procedure rendered his postarrest statements inadmissible. ChallengedFindingsAbout OfficerSafety Dare also challenges the trial court's findings that Sergeant Caiola's 

### actions were partly motivated by concern for officer safety. It is not clear how these findings are relevantto any conclusion about custody. Nevertheless, we rejectthis argument. 

### To the extent Dare argues that substantial evidence does not supportthe 

### court's findings, we disagree. Sergeant Caiola testified about Dare's delay before pulling over, about being outnumbered four to one, aboutthe nervous demeanor ofDare and his passengers, and about confirming his suspicions that the carwas stolen. He testified that in his experience, such situations "can turn 

### volatile" quickly, which prompted him to keep his interactions with Dare to a minimum and take a position of partial coverwhile waiting for backup assistance to arrive. Substantial evidence supported these findings. 

### Becausethe Terry stop did notescalateto custody until Dare was ordered out of the carand formallyarrested, he was not subjected to custodial

8No. 72943-8-1/9 interrogation inviolation ofMiranda. Although the trial court applied an erroneous standard to analyze the admissibility of Dare's statements, the court properly admitted Dare's statements for most purposes. Denial ofthe motion to suppress was proper. We affirm thejudgment and sentence. 

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WE CONCUR:

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