IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

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STATE OF WASHINGTON,

No. 76535-3-1

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Respondent,

v. DIVISION ONE

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ANTHONY EDWARD BALLENTINE, UNPUBLISHED OPINION . 0

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Appellant. FILED: September 24, 2018 C-n -

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LEACH, J. — Anthony Ballentine appeals his conviction for burglary in the

second degree. He claims that the trial court should have suppressed evidence

from his initial detention as the fruit of an unlawful stop. He also challenges the

court's admission of statements he made during police questioning because that

questioning violated his right against self-incrimination. Finally, he challenges

the court's decision to exclude evidence related to a police tip, asserting that the

evidence is not hearsay. We reject his challenges and affirm.

BACKGROUND

On July 27, 2016, King County Sheriffs Office (KCSO) Deputy Jeremy

Dalion was patrolling the 15200 block of Aurora Avenue North in Shoreline,

Washington. At about 2:30 a.m., he left his vehicle to investigate a stopped car

in the northbound lane. He heard an alarm coming from Seattle Ski &

Snowboard, located at 14915 Aurora Avenue North. The person in the stopped
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vehicle was pointing to the south. When he looked, Deputy Dallon saw a man

about 50 yards away, running south. Deputy Dalton described the man as

wearing dark clothing, "running south ... on the west side of the road

[apparently] carrying something." The area was dark and lit only by streetlights.

Deputy Dallon did not notice the man's race, whether he had a backpack, and did

not see him coming out of a shop. Deputy Dallon broadcast his observation of

the man running south in dark clothing to other officers.

Deputy Dallon continued to search the area nearby and took statements

from people he encountered. He followed up on one person's statement and

discovered a broken cash register on a walkway to the northwest of the Rodeway

Inn) He found receipts with the name "Seattle Ski" scattered near the register.

Deputy Dallon notified dispatch of the register.

A civilian told him that a person was behind the nearby Tic-Tac restaurant.

Deputy Dallon searched this area and found nothing of interest to the

investigation.

Meanwhile, other officers responded to the alarm, including KCSO Deputy

Nicholas Manley. Deputy Manley was in the parking lot south of the motel and

about 50 feet south of where Deputy Dallon found the register. Ballentine was

running "south and then sort of southeast" of the southwest corner of the hotel

toward him. Ballentine "was running, out of breath, looking over his shoulder,

1 At the time of the occurrences, the building was called the Rodeway Inn.

The name was changed to Americas Best Value Inn by the time of trial.

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and was tripping over his own feet." Behind him was a deputy in a patrol car.

Deputy Manley did not see anyone else on the street. At approximately 2:40

a.m., Deputy Manley "ordered Mr. Ballentine to the ground, and Mr. Ballentine

complied." Deputy Dalton arrived to help Deputy Manley and noticed blood on

Ballentine's hands. At this point, the deputies arrested Ballentine. An officer

searching Ballentine after the arrest found "wads of cash" with "blood on some of

the bills."2

After Ballentine's arrest, Deputy Dalton read him his Miranda3 rights.

Deputy Dalton spoke to him for about 45 minutes and throughout asked

Ballentine multiple times whether he understood his rights. Ballentine did not

respond, but he did answer several other questions asked by deputies. When

Deputy Dalton asked Ballentine about the cash register, he denied any

knowledge of it. When asked how he had cut his hand, he told Deputy Dalton

that it happened earlier in the day. Deputy Dalton asked him if he wanted to

make a statement, and he replied that he did not.

KCSO Sergeant Brandon Moen arrived and asked whether Ballentine had

been read his Miranda rights. Deputy Dation said yes, but he did not tell

Sergeant Moen that Ballentine refused to make a formal statement. When

Sergeant Moen asked Ballentine about his injury, he again claimed to have cut

2 KCSO Deputy Kociaj conducted the search but subsequently quit the

force. Deputy Dalton testified as to what he observed during the search.

3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694

(1966).

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his hand earlier that day. When asked, Ballentine told Sergeant Moen that he

had earned the cash in his pockets by selling drugs. He did not know how much

money he had because he had made so much.

Neither Deputy Dalton nor Sergeant Moen had any difficulty talking with

Ballentine or saw any need for a translator. The trial court found that both

"Deputy Dallon and Sergeant Moen reasonably believed that Ballentine had not

invoked his right to remain silent." It also found that 10 no point during his

contact with the deputies did Mr. Ballentine say he wished to remain silent, or

words to that effect; or that he did not want to talk further with the deputies; or

that he wanted to speak to an attorney." Ballentine does not dispute these

findings.

Officers investigating Seattle Ski found broken glass at the store and saw

that there was no cash drawer. The parties stipulated that the DNA

(deoxyribonucleic acid) profile and type extracted from the blood on the cash

register matched that extracted from Ballentine's cheek with a swab.

The jury found Ballentine guilty of burglary in the second degree. He

appeals.

DISCUSSION

Suppression of Evidence 

Ballentine claimed his initial detention violated his constitutional right

against unreasonable search and seizure and asked the trial court to suppress

the fruits of the initial detention and search. He similarly claimed that he had

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asserted his right to remain silent and asked the court to suppress his statements

made to the police.

The trial court held pretrial hearings on these requests. The court found

the initial detention and questioning lawful and denied the request to suppress

the evidence seized at it. It also ruled that Ballentine's statements to the police

were admissible because Ballentine did not clearly assert his right to remain

silent when he said he did not want to make a statement.

A. Standard of Review

When this court reviews a trial court's decision to deny a request to

suppress evidence, we review the record to see if substantial evidence supports

the court's findings of fact.4 We consider unchallenged findings of fact as true on

appea1.6 Here, the trial court did not file its findings of fact until January 8, 2018,

after the appellant's brief was filed. However, on March 8, 2017, the court

circulated a draft and received no objections or comments from either party. And

neither party submitted a supplemental brief contesting the findings. We review

a trial court's legal conclusions de novo.6

B. Warrantless Search

Ballentine asserts that Deputy Manley did not have a sufficient reasonable

suspicion to support his detention of Ballentine. We disagree.

4 State v. Weyand,188 Wn.2d 804, 811, 399 P.3d 530 (2017).

5 State v. Harris, 106 Wn.2d 784, 790, 725 P.2d 975 (1986).

6 Wevand,188 Wn.2d at 811; State v. I.B., 187 Wn. App. 315, 319-20, 348

P.3d 1250 (2015).

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Both the Fourth Amendment to the United States Constitution and article

1, section 7 of the Washington State Constitution prohibit any unreasonable

search and/or seizure. When a party presents an issue that involves both the

state and federal constitutions, this court analyzes the state constitutional issue

first.7 We analyze the federal constitution only if the state constitution does not

protect the conduct at issue.8 The Washington State Constitution article I,

section 7 "'grants greater protection to individual privacy rights than the Fourth

Amendment.m8 Under both, a court presumes that a warrantless seizure of

evidence of a crime is unreasonable unless the State can show that the action

falls under one of a few very limited exceptions." Brief questioning during a

Terryll investigative stop is one of these exceptions.

In general, the analysis of the validity of a Terry stop is fairly similar under

both article I, section 7 and the Fourth Amendment.12 The State must show that

the officer reasonably suspected that the person was engaged in, or was about

to engage in, criminal activity.13 Reasonable suspicion is a lower standard than

probable cause, but the officer's reasonable suspicion must be based upon

"specific and articulable facts] ] that the person stopped has been or is about to

7 State v. Z.U.E.,183 Wn.2d 610, 617, 352 P.3d 796 (2015).

8 Z.U.E., 183 Wn.2d at 617.

9 State v. Flores, 186 Wn.2d 506, 512, 379 P.3d 104 (2016) (quoting State

v. Harrington, 167 Wn.2d 656, 663, 222 P.3d 92 (2009)).

" State v. Acrey, 148 Wn.2d 738, 746, 64 P.3d 594 (2003).

11 Terry v. Ohio 392 U.S. 1, 30-31, 88 S. Ct. 1868, 20 L .Ed. 2d 889

(1968).

12 Z.U.E., 183 Wn.2d at 617.

13 Terry,392 U.S. at 30-31; Wevand,188 Wn.2d at 811.

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be involved in a crime."14 The state constitution provides more protection

because article I, section 7 requires that the State show the officer was

investigating a particular crime rather "than a mere generalized suspicion that the

person detained is 'up to no good.'"15

To decide the reasonableness of a stop, a court evaluates the totality of

the circumstances. Factors a court considers include the training and experience

of the officer, the stop's location, purpose and duration, the intrusiveness of the

stop on the suspect's liberty, and the conduct of the suspect." In the absence of

a reported crime, the flight of a suspect from police does not by itself provide

sufficient evidence to support a warrantless investigative detention.17 It can,

however, be a factor that, along with other indications of criminal activity, justifies

an investigative stop." If a court finds that the stop was unlawful, generally the

court must suppress all evidence the search produced."

Here, given the totality of the circumstances, Deputy Manley had a

reasonable suspicion that Ballentine was involved in the burglary of Seattle Ski.

Deputy Manley arrived in response to Deputy Dallon's report that a burglary had

just occurred at Seattle Ski. He knew to look for a person running south from

Seattle Ski. Soon after he arrived south of Seattle Ski and about eight minutes

14 Acrev,148 Wn.2d at 747.

15 Z.U.E.,183 Wn.2d at 618.

16 Acrev, 148 Wn.2d at 747.

17 State v. Howerton, 187 Wn. App. 357, 375, 348 P.3d 781 (2015).

16 State v. Gatewood,163 Wn.2d 534, 540, 182 P.3d 426 (2008).

19 WOMI Sun v. United States, 371 U.S. 471, 484-85, 83 S. Ct. 407, 9 L.

Ed. 2d. 441 (1963); State v. Larson,93 Wn.2d 638, 645-46, 611 P.2d 771 (1980).

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after Deputy Dallon had contacted him about the suspected burglary, he saw

Ballentine running toward him, "out of breath, looking over his shoulder,

and ... tripping over his own feet." Deputy Manley saw no one else except a

deputy in a patrol car following Ballentine on the street. None of the other

deputies participating in the investigation encountered a person matching Deputy

Dallon's description before Deputy Manley stopped Ballentine.

At the time, some 24-hour businesses operated in the area. However,

apart from the Rodeway Inn, these were at the 15500 block, the 15200 block,

and the 14500 block of Aurora Avenue North. None of these were in the area

that included Seattle Ski just north of 14900 south to the location where Deputy

Manley detained Ballentine, near the 14600 block of Aurora Avenue North. The

location of these businesses being in the area does not undermine Deputy

Manley's reasonable suspicion. As Deputy Manley indicated, in his four years of

experience patrolling the Aurora corridor, it was rare for people to be walking

around the area at 2:30 a.m. Ballentine has not challenged the trial court's

finding of fact that "[t]he deputies were all familiar with the area and knew that

pedestrian traffic in that two-block area was uncommon at that time of night."

C. Assertion of Right against Self-Incrimination

Ballentine contends that he adequately invoked his right to remain silent,

making his statements to the police inadmissible.

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The Fifth Amendment to the United States Constitution protects against

compelled self-incrimination.20 A confession made during a custodial

interrogation is compelled in violation of the Constitution unless the State shows

that officers informed the suspect of his right to remain silent, and he knowingly

and intelligently waived that right.21 The suspect may invoke the right to remain

silent at any time before or during questioning and once it is invoked, questioning

must stop.22 This invocation must be unequivocal, and officers may continue

questioning even if a suspect gives an equivocal statement indicating a wish to

remain silent.23

Also, if the suspect's statement is not facially clear and unequivocal,

officers are not required to clarify whether the suspect meant to unequivocally

invoke Miranda.24 A court cannot use words spoken after a suspect clearly and

unequivocally invokes Miranda to "retroactively cast doubt" on the suspect's

assertion of his right to remain silent.25 If the plain language and the context of

the suspect's assertion of his right against self-incrimination is such that a

"reasonable police officer in the circumstances' would understand it to be an

assertion of the suspect's rights," it is unequivocal.26

20 Miranda,384 U.S. at 457-58.

21 Miranda,384 U.S. at 471, 479.

22 Miranda,384 U.S. at 473-74.

23 Davis v. United States, 512 U.S. 452, 461-62, 114 S. Ct. 2350, 129 L.

Ed. 2d 362 (1994).

24 Davis, 512 U.S. at 461-62.

25 In re Pers. Restraint of Cross, 180 Wn.2d 664, 683, 327 P.3d 660

(2014).

26 Cross, 180 Wn.2d at 682-83 (quoting Davis, 512 U.S. at 459).

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Courts have found the following statements to be unequivocal assertions:

"I would rather not talk about it"27 and "I don't want to talk about it."29 Similarly,

courts have found a headshake "no" after being asked to talk about an incident to

be an unequivocal assertion.29 In contrast, the statement, "1 don't want to talk

right now, man" on the heels of"! just write it down, man. 1 can't do this. 1, 1, 1 just

write, man. I don't, 1 don't want.. . I don't want to talk right now, man" was,

according to the court, equivocal and simply an expression of "preference for the

means of communication."39 Also a suspect's statement that he does not want to

say anything incriminating is equivocal.31

Here, the deputies reasonably decided that Ballentine had not asserted

his right to remain silent. Ballentine claims that he invoked his Miranda rights

when he responded to Deputy Dallon that he did not want to make a statement

after being asked if he wanted to. This response answered the question whether

Ballentine wanted to make a formal statement rather than unequivocally

asserting his right to remain silent about the incident in its entirety. In this way,

his statement is like the situation in Walker where the defendant indicated he did

not want to say anything incriminating but also continued speaking to the

27 State v. Gutierrez, 50 Wn. App. 583, 589, 749 P.2d 213 (1988)

(emphasis omitted).

28 Cross, 180 Wn.2d at 684.

29 I.B., 187 Wn. App. at 323-24.

39 State v. Piatnitskv, 180 Wn.2d 407,414-15, 325 P.3d 167 (2014).

31 State v. Walker,129 Wn. App. 258, 274, 118 P.3d 935 (2005).

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police.32 It does not fall into the same category of statement as Gutierrez33 or

Cross34 where defendants unequivocally asserted a right to remain silent.

Exclusion of Hearsay Evidence

Ballentine claims the trial court should have admitted testimony about a

report of other people in the vicinity because he offered it to show its effect on the

police. However, Ballentine did not offer it for this purpose at trial. RAP 2.5(a)

allows this court to refuse to review an issue not raised at trial unless there is an

issue of trial court jurisdiction, a "failure to establish facts upon which relief can

be granted," or "manifest error affecting a constitutional right."

At trial, Ballentine acknowledged that the offered statement was hearsay

but claimed, first, that it was admissible under the business record exception and,

second, that it was a present sense impression. The trial court disagreed and

excluded it.

Ballentine attempts to conflate an argument that the trial erroneously

excluded a statement that he offered to show its effect on the listener with a

discussion of the impOrtance of information about police procedure which he, to

some extent, did raise below. But the discussion below focused on its use for

impeachment. Since Ballentine questioned Deputy Dation at trial about the

existence of the statement and Deputy Dallon affirmed its existence and

indicated he had followed up on it, Ballentine has not shown any need for the

32 Walker,129 Wn. App. at 276.

33 Gutierrez,50 Wn. App. at 589.

34 Cross, 180 Wn.2d at 684.

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statement to be admitted for impeachment purposes. Thus, the central argument

that Ballentine raises here, about the statement being admissible to show its

effect on the listener, is not properly before this court.35

CONCLUSION

We reject Ballentine's assertions that the trial court should not have

admitted evidence obtained during an initial search or his statements made

during questioning. We also reject Ballentine's assertion about the trial court's

exclusion of evidence of a report of other people in the area of his detention. We

affirm.

WE CONCUR:

35 RAP 2.5(a).

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