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

v. JOSE HERNANDEZ-GARCIA, AKA JESUS HERNANDEZ-GARCIA, Appellant. No. 68106-1-1 DIVISION ONE UNPUBLISHED OPINION
FILED: April 29, 2013 o o 00o CO 2^ n-' 1 =53 ( '1
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Grosse, J. — An individual is "in custody" for the purposes of Miranda v. 

### Arizona,1 when a reasonable person would havefeltthat he or she was notfree to end the interrogation and leave. Here, Jose Hernandez-Garcia agreed to speak with detectives, who told him that he was not under arrest. Shortly into the conversation, he volunteered incriminating information. Under these circumstances, the interrogation

was noncustodial. We affirm. FACTS 

### On the morning of December 2, 2010, Seattle Police Detective Leslie Smith arrived at Ross Display to contactemployee Hernandez-Garcia regarding allegations of child sexual abuse made against a man known as "Muchacho." Smith suspected that Hernandez-Garcia was "Muchacho," and she hoped to verify Hernandez-Garcia's identity and to talk with him ifhe was willing. 

### Afterspeaking with Hernandez-Garcia for a short while, Smith realized that she needed the assistance of an interpreter due to Hernandez-Garcia's limited ability to 

### speak English. Smith gave Hernandez-Garcia her card, which indicated that she
1384 U.S. 436, 86 S. Ct. 1602, 16L. Ed. 2d 694 (1966).No. 68106-1-1/2 worked for the Seattle Police Department's sexual assault unit. Hernandez-Garcia 

### agreed to speakwith her thefollowing week.2 On December 9, Smith returned to Ross Display with Detective Susana Ditusa and a Spanish-language interpreter. The detectives were armed but dressed in plain clothes and were driving an unmarked car. Once inside, Smith told a supervisor that they wanted to meetwith Hernandez-Garcia privately, and he showed them to a 12-foot by 13-foot employee break room in the back ofthe building. The supervisor retrieved Hernandez-Garcia, who agreed to a recorded conversation withthe detectives. Smith closed the door to the room and questioned Hernandez-Garcia for a little
over an hour. First, Smith verified that Hernandez-Garcia was also known by the nickname "Muchacho." She informed him that the complainant, E.P., had alerted 

### employees at her school as to "what had gone on between you and her a couple of 

### years ago."3 Aftertelling him, "[i]t's pretty seriouswhy we'rehere," she stated, "we're not here to take you to jail.
... But I am here to try to find out the truth of what happened between you and [E.P.]." Hernandez-Garcia replied, "Oh okay. Like—." The following exchange then occurred: 

### DETECTIVE: Like okay. What [E.P.] admitted to, and kept—she kept hidden for a long time. HERNANDEZ-GARCIA: Uh, huh. 

### DETECTIVE: Butas she got older, now that she's insecond grade, 

### she's been able to actually verbalize to tell people what had happened. She admitted to something that went on between the two of you that's pretty intimate. Do you understand when Isay intimate what I mean by that? HERNANDEZ-GARCIA: Yes, but itsurprises me. 

### 2According toSmith, she and Hernandez-Garcia understood each otherwell enough to make these arrangements. 

### 3E.P. was the daughter of afriend ofHernandez-Garcia, who cooked meals out of her home.No. 68106-1-1/3 DETECTIVE:Okay. Urn, let me just tell you what she said. That you didn'tjustwatch movies when you were sitting on the couch. HERNANDEZ-GARCIA: Uh, huh. DETECTIVE: And thatyou did private things with her. HERNANDEZ-GARCIA: No, but like what? DETECTIVE: Like private things that you touched her privates, and thatyou had hertouch yours. HERNANDEZ-GARCIA: I'll have to start from the beginning to explain this. DETECTIVE: Okay. Please do. Hernandez-Garcia told Smith that E.P., who was four years old at the time of the events, had a habit of grabbing his penis over his clothes, and that he tried to discourage this behavior. He said he never touched E.P. in return. He also denied E.P.'s accusations that he had shown her pornographic movies on a portable DVD (digital versatile disc) player. For most of the interview, Hernandez-Garcia continued to deny E.P.'s 

### accusations that he inappropriately touched her. Smith eventually told him, "little girls 

### don't make things like that up." She said, "We're not here because we think you're
some sort ofmonster and you're out there preying on little girls." Rather, "I think you 

### just made a mistake. . . . [W]e'rejust here talkin' to youright nowbecausewe'retryin' to find out the truth." Hernandez-Garcia eventually admitted to the conduct. At the end of the interview, Smith arrested him and informed him of his rights. 

### The State charged Hernandez-Garcia with first degree rape of a child, first degree childmolestation, and communication with a minor for immoralpurposes. 

### Hernandez-Garcia soughtto exclude the statements he madeto Smith during the 

### Ross Display interview, claiming that Smith should have provided him with Miranda 

### warnings. The court held a CrR 3.5 hearing to determine the admissibility of the statements. After considering testimony from Smith, Ditusa, and the interpreter, theNo. 68106-1-1/4 

### court ruledthatthe statements were admissible. After a trial, during whichthe recording ofthe interview was played forthejury, Hernandez-Garcia was convicted on all counts. He appeals. ANALYSIS Hernandez-Garcia contends the trial court should have suppressed his statements, claiming they were made during a custodial interrogation that required Miranda warnings. Under Miranda, evidence obtained as a result of a custodial interrogation may not be used against a defendant unless the defendant was first 

### warned of his or her rights.4 Here, it is undisputed that Hernandez-Garcia was 

### interrogated.5 Thus, if Hernandez-Garcia was in custody at the time the interrogation occurred, his statements should have been suppressed. "We review a trial court's custodial determination de novo."6 

### "'Custody' for the purposes of Miranda is narrowly circumscribed and requires formal arrest or restraint on freedom of movement to a degree associated with formal 

### arrest."7 This courtemploys anobjectivestandard: "whetherareasonableperson inthe individual's position would believe he or she was in police custody to a degree 

### associatedwith formal arrest."8 A defendant mustpointto"objectivefacts indicating his or her freedom of movement was restricted."9 To determine whether an interrogation
was custodial, a court must examine all the circumstances surrounding the 

### 4State v.Baruso.72Wn. App. 603, 609, 865 P.2d 512(1993). 

### 5 "Interrogation" occurs when the interviewing officer should have known that the questioning would provoke an incriminating response. State v. Post, 118 Wn.2d 596, 606, 826 P.2d 172 (1992). 

### 6Statev. Lorenz. 152 Wn.2d 22, 36, 93 P.3d 133 (2004). 

### 7State v. Ferguson. 76Wn. App. 560, 566, 886 P.2d 1164(1995). 8Lorenz, 152 Wn.2d at 36-37. 

### 9Post, 118Wn.2dat607.No. 68106-1-1/5 

### interrogation.10 "Relevantfactors include the location of thequestioning, its duration, statements made during the interview, the presence or absence of physical restraints during the questioning, and the release of the interviewee at the end of the 

### questioning."11 Hernandez-Garcia argues that the interrogation was custodial because he was isolated from others, did not initiate contact with the officers, was outnumbered by law enforcement personnel, and was not explicitly informed that he could end the interview and leave. Although he was not bound or otherwise physically restrained, he contends that closing the door to the interview room was a kind of psychological restraint. He claims thatthe officer's repeated accusations led to a coercive environment in which he felt pressured to make incriminating statements. We disagree. Several other considerations lead us to the conclusion that the interrogation was noncustodial. Hernandez-Garcia voluntarily agreed to speak with Smith on two 

### separate occasions with the understanding that questioning would result. Also, Smith told Hernandez-Garcia at the beginning ofthe interview that she was not there to arrest 

### him. While Smith did not explicitly tell Hernandez-Garcia that he was free to go, that 

### fact is fairly implied based on these circumstances—particularly Hernandez-Garcia's 

### agreementto talk and Smith's statementthat she was "not[tjhereto take [him] tojail." The interviewwas held in a familiarsetting—the employee break room. The room had two exits, and there is no evidence that either one was blocked. Also, Hernandez10 Stansburvv. California. 511 U.S. 318, 322, 114 S. Ct. 1526, 128 L Ed. 2d 293 (1994) (quoting California v. Beheler. 463 U.S. 1121, 1125, 103 S. Ct. 3517, 77 L. Ed. 2d 1275 

### (1983)). Howes v. Fields. 132 S. Ct. 1181, 1189, 182 L. Ed. 2d 17 (2012) (citations omitted).No. 68106-1-1/6 

### Garcia neverattempted to leave or end the interview. Rather, he volunteered to explain the situation to the detectives shortly afterthe interview began. 

### The cases Hernandez-Garcia relies upon— State v. Dennis.12 United States v. 

### Kim.13 andUnited Statesv. Carter14—aredistinguishable. In Dennis. Division Two of this court held that the defendants were in custody when a police officer interrogated them in their own home, even though they were not 

### placed under arrest and the officer told them they were free to leave at anytime.15 There, the atmosphere was "dominated by the officer's unwelcome presence," the officer insisted on remaining in a position where he could monitor and restrict the defendants' freedom of movement within their home, and the officer informed the defendants that a search warrant had been obtained and was en route to the apartment inorderto be served.16 In Kim, the defendant and her husband drove to the store they owned to check 

### ontheirsonafterapoliceofficershowed up attheirhouse lookingforhim.17 Whenthey arrived, the police were executing a search warrant and the door to the store was 

### locked.18 Kim knocked, and anofficerlet her enterbut locked out herhusband.19 Kim
was not allowed to leave for three hours.20 Once she entered the store, officers prevented her from speaking with her son and ordered her to speak English, not her


### 12 16Wn. App. 417, 558 P.2d 297(1976). 13292 F.3d 969(9th Cir. 2002). 14 884 F.2d 368(8th Cir. 1989). 15 Dennis. 16Wn. App. at421-22. 

### 16Dennis, 16Wn. App. at421-22. 17 Kim, 292F.3d at 971. 18 Kim. 292 F.3d at 971. 19 Kim, 292F.3dat971. 

### 20 Kim, 292 F.3d at 971.No. 68106-1-1/7 native Korean.21 Kim was directed to sit while the officers searched the store for "some 

### time."22 After that, they interrogated herfor 30 minutes without an interpreter and another 20minutes after the interpreterarrived.23 Kim said that the officers positioned themselves so that she felt "surrounded."24 During the questioning, Kim admitted to 

### selling large quantities of pseudoephedrine.25 The court held that under these circumstances, Kim was sufficiently restrained so as to be considered incustody. 

### InCarter, the Eighth Circuit held that the defendant was incustody where postal 

### inspectors and a bank security officer surrounded him during the interrogation, the 

### inspectors did not tell him he was free to leave or did not have to answer their 

### questions, and the inspectors adopted a "Mutt and Jeff' approach during the hour-long 

### interview, confronting himwithdamningevidenceofhisguilt.26 In each ofthese cases, there is an element of police dominance and restraint that is absent here. The detectives did not surround Hernandez-Garcia or otherwise 

### restrict his freedom of movement, engage indeceptive interrogation tactics, orthreaten him with the existence of a search warrant. Unlike Kim, Smith did not prevent 

### Hernandez-Garcia from speaking in his native language; she waited until an interpreter 

### was present to question him. These circumstances distinguish this case from those Hernandez-Garcia relies upon.



### 21 Kim, 292 F.3d at971. Another officertold her to "shut up." 22 Kim. 292 F.3d at 971-72, 977. 

### 23 Kim, 292F.3d at 977. 24 Kim. 292F.3d at 972. 25 Kim, 292F.3d at 972. 26 Carter, 884 F.2d at 372 (1989).No. 68106-1-1/8
CONCLUSION Smith told Hernandez-Garcia that she was not at his workplace to take him to jail and asked him if he would agree to speak with her. Hernandez-Garcia voluntarily did
so. A reasonable person in Hernandez-Garcia's position would not have felt his freedom of movement was restricted to a degree associated with formal arrest. We affirm.



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WE CONCUR:


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