### FILED JULY 6, 2017 In the Office ofthe ClerkofCourt WA State Court ofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Respondent,
v. DANIEL R. SAVINO, Appellant. ) ) ) ) ) ) ) ) ) No. 34208-5-III

UNPUBLISHED OPINION

LAWRENCE-BERREY, A.CJ.

- Thetrial courtheld a CrR3.5 hearing and determinedthatDaniel R. Savino's statements tothe arresting officerwere admissible. Followingthat determination, ajury found 

### Mr. Savino guilty of possession ofa controlled substance-methamphetamine. On appeal, 

### Mr. Savino argues thetrial court erred because his statements were made in response to police conductthat was likely to elicit an incriminatingresponse. We find no factual support for his argument and affirm. FACTS Deputy Daren Schaumwas onpatrol in Spokane Valley whenheresponded to a malicious mischiefcall. Wendy Savino had calledto report thather son, Daniel Savino, hadbroken a window in herhouse. Once Deputy Schaum arrived,he spoketoMs.

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J No. 34208-5-111 State v. Savino
Savino and obtainedprobable cause to believe Mr. Savino had committed third degree malicious mischief-domestic violence. The deputy advised Ms. Savino that the nature ofthe suspected crime required him to arrest her son. Deputy Schaum then handcuffed and searched Mr. Savino incidentto arrest. The deputy found a clearplastic cigarette wrapper and inside that wrapperwas another wrapper that contained a crystalline substance. Deputy Schaum immediately recognized the substance as methamphetamine. At this time, and priorto receivingMiranda 1 warnings, Mr. Savino said the pants were not his and then said, had he known that it was there, he would have gotten rid ofit before the officer arrived. Mr. Savina's statement
was not made in response to any police questioning and implied that he knew that the substance was an illegal substance. The State charged Mr. Savino with possession ofa controlled substancemethamphetamine. The courtheld a CrR 3.5 hearing to determine the admissibility of Mr. Savina's statements. Afterthe above facts were presented, the trial court found that Mr. Savino made the statements while handcuffed and he was not free to leave, butthat the statements were not made in response to any police questioning. Fromthese findings,

1Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 2No. 34208-5-111 State v. Savino
the trial court concluded that although the statements were custodial, the statements were not the product ofpolice interrogation, were voluntary, and were therefore admissible. The caseproceeded to a shortjurytrial. Thejury found Mr. Savino guilty as charged. Mr. Savino timely appealed. ANALYSIS Mr. Savino contends the trial court erred when it did not suppress his custodial statements to Deputy Schaum. When reviewing the denial ofa suppression motion, we determine "whether substantial evidence supports the challenged findings offact and whetherthe findings of fact support the conclusions oflaw." State v. Garvin, 166 Wn.2d 242,249,207 P.3d 1266 (2009). Evidence is substantial when it is sufficient '"topersuade a fair-minded person ofthe truth ofthe statedpremise."' Id. (quoting State v. Reid, 98 Wn. App. 152, 156,988 P.2d 1038 (1999)). Unchallenged findings offact are verities on appeal. State
v. Broadaway, 133 Wn.2d 118,131,942P.2d 363 (1997). We review the trial court's conclusions oflaw from a suppression hearing de novo. State v. Campbell, 166 Wn. App. 464,469,272 P.3d 859 (2011). The Fifth Amendment to the United States Constitution guarantees that "noperson

... shall be compelled in any criminal case to be a witness againsthimself." "The right
3No. 34208-5-III State v. Savino against self-incrimination is liberally construed." State v. Easter, 130 Wn.2d 228, 236, 922 P.2d 1285 (1996). Miranda warnings were developed to protect a defendant's constitutional right not to make incriminating confessions or admissions topolice while in the coercive environment ofpolice custody. State v. Harris, 106 Wn.2d 784, 789, 725 P.2d 975 (1986). Miranda warnings must be given when a suspectendures (1) custodial (2) interrogation (3) by an agent ofthe State. State v. Sargent, 111 Wn.2d 641, 647, 762 P.2d 1127 (1988). WithoutMiranda warnings, a suspect's statements during custodial interrogation are presumed involuntary and inadmissible. State v. Heritage, 152 Wn.2d 210, 214, 95 P.3d 345 (2004). Here, the parties agree that Mr. Savino was in custody for purposes ofMiranda, and the statements in question were made to an agent ofthe state. The question is whetherMr. Savina's statements were made in response to police interrogation. Mr. Savino argues that Deputy Schaum's conductwas a form ofinterrogation sufficientto necessitateMiranda warnings. Specifically, he argues: [T]he issue is whetherthe defendant would believe the state agent was seeking informationthat would be incriminating. A reasonable person who had been arrested, handcuffed and searched, then confrontedwith a package containing what appeared to be a controlled substance found inhis pocket, would understand the deputy's conduct as an accusation, intendedto elicit
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an incriminating response, whetherthatwould be in the form ofan admission or an explanation for the presence ofthe substance. Appellant's Br. at 5 (citation omitted). Interrogation includes express questioning and its functional equivalent, which
means "'any words or actions on the part ofthe police
...that the police should know are reasonably likely to elicit an incriminating response from the suspect.'" State v. Wilson, 144 Wn. App. 166, 184, 181 P.3d 887 (2008) (quotingRhode Islandv. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980)). Mr. Savina's argument that the deputy "confronted" Mr. Savino withthe contraband is without a factual basis. The facts developed during the CrR 3.5 hearing merely establish that Deputy Schaum found the contraband in the second wrapper inside the pants worn by Mr. Savino. Because ofMr. Savina'sresponse, we inferthatMr. Savino knew that Deputy Schaum found the contraband in the pants. Butwe cannot infer any more from the record. Mr. Savino did not cross-examine Deputy Schaum during the hearing, so there are no facts to support his theory on appeal that the deputy "confronted" him with the contraband.2

2 This argument was not made during the CrR3.5 hearing. This could explain why Mr. Savino did not cross-examine the deputy, and surely explains whythe trial court did not enter findings that directly address this argument on appeal. Because the State did not argue that Mr. Savino waived this argument on appeal, we do not decide that issue. 

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The uncontested finding that Mr. Savino's response was not made in response to police questioning is supported by the record. That finding supports the conclusions of law that Mr. Savino's statements were not the product ofpolice interrogation, were voluntary, and therefore were admissible. Affirmed. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040.

WE CONCUR: 

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Pennell, J.

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