STATE v. FORD, 143 Wn. App. 1055 (2008)

No. 36193-1-II.The Court of Appeals of Washington, Division Two.
April 8, 2008.

Appeal from a judgment of the Superior Court for Pierce County, No. 06-1-02907-2, Kathryn J. Nelson, J., entered March 30, 2007.

Affirmed by unpublished opinion per Van Deren, A.C.J., concurred in by Bridgewater and Armstrong, JJ.

VAN DEREN, A.C.J.

Carlos Lopez Ford appeals his conviction for unlawful possession of a controlled substance. He argues that the trial court erred when it admitted his confession into evidence because police did not read hi Miranda[1] warnings before they questioned him. The State contend Miranda warnings were not required because Ford was not in custody when he confessed. Because Ford’s interrogation was not custodial, we affirm.

FACTS
I. Background

On June 28, 2006, Detectives Carol Kranchich and Scott Yenne served a search warrant at the Fords’ Tacoma apartment. The warrant related to evidence of a shooting for which neither Ford nor his wife were suspects. Ford and his wife let the detectives into their home and told them they lived there with their children, who were also present.

The detectives did not place Ford or his wife in handcuffs when they entered the residence, but they were not free to move about or leave. The Fords remained in the downstairs living room with their children while the officers searched for other occupants and evidence relating to the shooting. When Yenne found a baggie of powdered cocaine, a digital scale, and a razor blade in the upstairs master bedroom, Krancich asked Ford’s wife to come upstairs to the master bedroom. Both officers had a conversation with her in the bedroom, but did not handcuff her or tell her she was under arrest.

Kranich and Yenne then interviewed Ford on the landing of the stairs outside the master bedroom. They did not place Ford in handcuffs or tell him he was under arrest, nor did they advise him of his constitutional rights.[2] Ford appeared calm, did not ask for an attorney, and did not hesitate to make statements to the detectives. He admitted the cocaine was his and said his wife did not know about it. He said he planned to use the cocaine alone and that he knew how to “turn powder cocaine into rock cocaine.” Clerk’s Papers (CP) at 42. The detectives made no threats or promises to Ford in order to get him to speak. The entire conversation took around five minutes and, after hearing his confession, the detectives placed Ford under arrest.[3]

II. Procedure

The State charged Ford with one count of unlawful possession of a controlled substance, aggravated by the circumstance that Ford was under community custody when he committed the crime. Before trial, Ford argued that the court should suppress his confession because the police failed to read him Miranda warnings. The State countered that Miranda warnings were not required because Ford was not in custody when he confessed. The trial court held a CrR 3.5 hearing and ruled that his statement was admissible because Ford was not in custody during the interview.

A jury found Ford guilty and the sentencing court imposed 16 months of incarceration. Ford appeals.

DISCUSSION
I. Admissibility of Confession

Ford raises a single issue in his direct appeal — whether the detectives’ failure to advise him of the Miranda warnings renders his confession inadmissible. The answer to this question depends on whether he was in custody when he confessed. We hold that he was not and, accordingly, that the trial court did not err in admitting the confession.

A. Standard of Review

The Fifth Amendment protects a defendant against self-incrimination. U.S. Const. amend. V. “Generally, . . . a person must invoke the Fifth
Amendment protections in order for them to apply.” State v. Warner, 125 Wn.2d 876, 884, 889 P.2d 479 (1995). But there is an exception to this rule when a state agent conducts a custodial interrogation without providing Miranda warnings. Warner, 125 Wn.2d at 884.

“Miranda warnings were developed to protect a defendant’s constitutional right not to make incriminating confessions or admissions to police while in the coercive environment of police custody.” State v. Heritage, 152 Wn.2d 210, 214, 95 P.3d 345 (2004). Officers must advise the accused of his right to counsel and right against self-incrimination when custodial interrogation begins. U.S. Const. Amend. V; Wash. Const. art. I, § 9; Miranda v. Arizona, 384 U.S. 436, 479, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). A custodial interrogation involves express questioning or its functional equivalent, initiated after a person is in custody or otherwise significantly deprived of his freedom. State v. Hawkins, 27 Wn. App. 78, 81-82, 615 P.2d 1327 (1980). “Withou Miranda warnings, a suspect’s statements during a custodial interrogation are presumed involuntary.” Heritage, 152 Wn.2d at 214.

“We review a trial court’s custodial status determination de novo.”State v. Lorenz, 152 Wn.2d 22, 36, 93 P.3d 133 (2004). Whether a person was in custody for purposes of Miranda is measured by an objective test Lorenz, 152 Wn.2d 22, 36-37. “`Custody’ for Miranda purposes is narrowly circumscribed and requires `formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.'” State v. Post, 118 Wn.2d 596, 606, 826 P.2 172, 837 P.2d 599 (1992) (internal quotation marks omitted) (quoting Minnesota v. Murphy, 465 U.S. 420, 430, 104 S. Ct. 1136, 79 L. Ed. 2d (1984)). We look at the circumstances surrounding the interrogation and decide whether a reasonable person would have felt that he was not free to terminate the interrogation and leave. State v. Templeton, 148 Wn.2d 193, 208, 59 P.3d 632 (2002).

B. No Custodial Hold

Ford asserts that a reasonable person would have felt that he was not free to terminate the interrogation and leave when the officers questioned him. We disagree. Questioning that takes place at a defendant’s own home, as is the case here, is generally noncustodial because a defendant’s comfort in his own abrogates the coercive environment that Miranda addresses. See 2 Wayne R. LaFave, et al., Criminal Procedure, § 6.6(e), at 742 n. 67 (3d ed. 2007). Ford was not free to leave or wander about his house while the detectives executed the search warrant. This fact does not, however, render the interrogation custodial. Courts have repeatedly held that an interrogation is not custodial simply because the accused was compelled legally, for a reason tangential to the confession, to remain in the place in which the conversation took place. See generally 2 LaFave, Criminal Procedure, § 6.6(e). For example, in Murphy, the United States Supreme Court held tha Miranda did not apply because custody was lacking when the defendant confessed to a probation officer at her office, where a court order compelled him to remain or face revocation of his probation. The Court reasoned that the atmosphere of psychological intimidation that defines custody was lacking because the defendant was familiar with the officer and office and knew he could leave. Murphy, 465 U.S. at 431-432.

And our Supreme Court held in Post that a doctor’s interview of a convicted felon on work release was not custodial. The Court reasoned that, while a felon on work release has restrictions on his movements, such restriction does not equal the restraints on freedom of movement that accompany a formal arrest. The felon was compelled to stay in order to avoid incarceration, but ultimately knew that he could leave. Post, 118 Wn.2d at 603, 607-08.

The present case is similar to Post. Ford’s movements were restricted, but not in a sense similar to a formal arrest. Ford could not leave his house without facing possible criminal sanctions. See RCW 9A.76.020.[4]
But Ford was not in handcuffs or otherwise physically restrained, no guns were drawn, and no evidence suggests the detectives positioned their bodies to prevent him from breaking off the conversation. Ford has not shown that a reasonable person would believe he was restricted from walking downstairs to join his children or to the master bedroom to join his wife.

Moreover, as in Murphy and Post, the restrictions placed on Ford were tangential to the interrogation. 465 U.S. at 431-32; 118 Wn.2d at 603. Ford’s movements in the house were restricted because police were executing a search warrant relating to a crime for which Ford was not a suspect, not because the police were investigating cocaine possession. Similarly, the Murphy and Post defendants’ movements were restricted because they committed past crimes peripheral to the crimes to which they confessed. 465 U.S. at 430-33; 118 Wn.2d at 607-08. This tangential nature of Ford’s restriction indicates that it was not of the degree associated with a formal arrest.[5] Further indicia that the officers’ conversation with Ford was noncustodial were that (1) the conversation lasted only about five minutes, (2) took place near his wife and children, (3) was in a semi-open location in the house, and (4) Ford did not appear agitated or upset by the situation.[6]

A reasonable person in Ford’s position would not believe that his movements were restricted in the same manner as those of a person in police custody. Accordingly, we hold that the trial court did not err when it admitted his confession.

II. Statement of Additional Grounds for Relief

Ford also filed a statement of additional grounds for relief (SAG) alleging two grounds for review. RAP 10.10. His first allegation, in its entirety, reads “[i]nsufficient [c]ounsel.” SAG at 1. Although references to the record and citations to authorities are not required in SAGs, we “will not consider a defendant/appellant’s statement of additional grounds for review if it does not inform the court of the nature and occurrence of alleged errors.” RAP 10.10(c). Ford’s statement does not inform us of the basis of his claim that his counsel was ineffective and, accordingly, we do not consider it.

Second, Ford alleges error because a potential juror stated that he or she knew Ford, yet was part of the jury panel. The record on appeal does not contain the jury selection portion of the proceedings. As our review is limited to the record before us, we cannot address this issue on its merits. State v. Tracy, 158 Wn.2d 683, 691, 147 P.3d 559 (2006). If Ford can produce additional evidence relevant to this issue, such as an attorney’s affidavit, he can present it in a timely personal restraint petition. RCW 10.73.090 through .140.

We affirm.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

BRIDGEWATER, J., ARMSTRONG, J., concur.