STATE v. RASMUSSEN, 141 Wn. App. 1032 (2007)

No. 34239-1-II.The Court of Appeals of Washington, Division Two.
November 14, 2007.

VAN DEREN, J.

Lucas Robert Rasmussen appeals his convictions of unlawful possession of methamphetamine and making a false or misleading statement to a public servant, arguing that the trial court erred when it denied his CrR 3.5/3.6 motion to suppress. Because the scope and intensity of the deputy’s initial investigatory detention were reasonable, we affirm.

FACTS
I. Factual Background

On October 6, 2005, [1] around 10:20 a.m., the resident living at 241 Tangen Road in southern Cowlitz County contacted the Sheriff’s Department and reported that there was a vehicle broken down in his driveway, that the driver of the vehicle had been walking around on his property for over an hour, the driver appeared to be on drugs, and his speech was slurred. The resident requested that a deputy come and talk to the driver to see what he was doing. The dispatcher provided Deputy Brad Bauman with this information, and Bauman responded to the call.

When Bauman arrived about an hour later, he found a truck sitting in the driveway and contacted Rasmussen, who was sitting in the driver’s seat, to determine who he was and why he was on the property. Rasmussen’s responses to his questions were slow, slurred, inconsistent, and confusing, suggesting that Rasmussen was lying about his identity; Bauman arrested him for trespassing and for obstructing a law enforcement officer. Bauman then advised Rasmussen of his Miranda[2] rights; Rasmussen made no further statements. When Bauman searched Rasmussen following the arrest, he found two plastic baggies containing methamphetamine residue and identification bearing Rasmussen’s name.

II. Procedural Background

The State charged Rasmussen with unlawful possession of methamphetamine, second degree criminal trespass, and obstructing a law enforcement officer. Rasmussen pleaded not guilty and moved to suppress the statements he made to Bauman during the initial contact and all of the evidence Bauman gathered as a result of the subsequent search. Following a November 23, 2005, suppression hearing, the trial court denied Rasmussen’s motion to suppress.[3]

On December 16, 2005, the State amended the charges to unlawful possession of methamphetamine, second degree criminal trespass, and making a false or misleading statement to a public servant; the case proceeded to trial. The jury found Rasmussen guilty of unlawful possession of methamphetamine and making a false or misleading statement to a public servant. Rasmussen filed a timely notice of appeal.

While preparing the record for the appeal, defense counsel learned that the video recording of the November 23, 2005, suppression hearing had been lost or destroyed and that there was no record of this proceeding. When it became apparent that Rasmussen’s trial counsel, the deputy prosecutor, and the trial court were not able to provide sufficient information to recreate the suppression hearing record, we remanded the case for a new suppression hearing.

III. Results of the Second Suppression Hearing

The trial court held the new suppression hearing on January 17, 2007. Following this hearing, the trial court once again denied the motions to suppress, found Rasmussen’s statements admissible, and entered the following written findings of fact:

I. FINDINGS OF FACT
1. On [October] 6, 2005, [4] Cowlitz County Sheriff’s Deputy Bauman was dispatched to the Tangen Road area.
2. Tangen Road is a dead end private road in Cowlitz County, WA.
3. Information received by Bauman from dispatch was that an identified caller had indicated that there was a trespasser on his property who appeared to have been under the influence of drugs and who had indicated earlier to the caller that he had broken down.
4. Most people would expect that an officer would first investigate potential criminal activity prior to investigating innocent explanations.
5. Defendant was contacted sitting in the driver’s seat of a truck pointed down a driveway in the Tangen Road area.
6. Defendant provided multiple conflicting and confusing stories to the deputy.
7. Defendant’s statement to the deputy that he ran out of gas was not consistent with the position of his vehicle in a driveway, in that he had not coasted down a long steep road and was above an address he later gave as the address he had been visiting.
8. Defendant’s speech was slurred and he gave slow responses.
9. Defendant’s responses were inconsistent including the various explanations that he was visiting friends or doing a job in the area.
10. Defendant indicated that he had lost his identification and initially gave a name of Jonathan T. Smith.
11. Defendant gave the deputy two different birthdates and an age that was inconsistent with both of the given birthdates.
12. The contact lasted between ten and fifteen minutes.
13. A contact between ten and fifteen minutes is reasonable for a Terry[5] stop.
14. Defendant was unable to provide a complete address during the contact.
15. Defendant told the deputy that a “Sam” was at 234 Tangen Road but the defendant apparently did not go there and rather waited approximately an hour near his vehicle when the deputy arrived.
16. The only identification provided by the defendant was a Lowe’s business card from the state of Michigan with a different name, John Q. Smith.
17. The defendant was arrested and searched.
18. Pursuant to the search incident to arrest, both suspect drugs and identification in another name were located.
19. The deputy read the Miranda warning from a pre-printed departmental card. No questions were asked after Miranda.

Clerk’s Papers (CP) (Feb. 7, 2007) at 4-6.

ANALYSIS
Rasmussen does not challenge Bauman’s initial contact; nor does he argue that any specific factual finding is not supported by the record.[6] Instead, Rasmussen argues that the trial court should have suppressed his pre-Miranda statements to Bauman and the evidence Bauman found following the arrest because the scope and intensity exceeded that of a permissible investigative detention and Bauman was, therefore, required to advise him of his Miranda rights before asking him any questions. We disagree.

An officer detaining a suspect during a valid Terry investigatory stop, may “ask a moderate number of questions . . . to determine the identity of the suspect and to confirm or dispel the officer’s suspicions without rendering the suspect `in custody’ for the purposes of Miranda.” State v. Heritage, 152 Wn.2d 210, 218, 95 P.3d 345 (2004) (citin Berkemer v. McCarty, 468 U.S. 420, 439-40, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984); State v. Hilliard, 89 Wn.2d 430, 432, 435-36, 573 P.2d 22 (1977)). Thus, if Bauman’s investigative detention was valid, Miranda does not apply, and the trial court did not err when it denied Rasmussen’s suppression motion and admitted his statements.

To justify a Terry stop and investigatory detention, an officer must have “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, 392 U.S. 1, 21, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968); see also State v. Kennedy, 107 Wn.2d 1, 5, 726 P.2d 445 (1986); State v. Williams, 102 Wn.2d 733, 739, 689 P.2d 1065 (1984). “In evaluating the reasonableness of an investigative stop, [we] consider the totality of the circumstances, including the officer’s training and experience, the location of the stop, and the conduct of the person detained.” State v. Acrey, 148 Wn.2d 738, 747, 64 P.3d 594 (2003) (citing State v. Glover, 116 Wn.2d 509, 514, 806 P.2d 760 (1991)). We also consider, “`the purpose of the stop, the amount of physical intrusion upon the suspect’s liberty, and the length of time the suspect is detained.'” Acrey, 148 Wn.2d at 747 (quoting Williams, 102 Wn.2d at 740).

Furthermore:
A lawful Terry stop is limited in scope and duration to fulfilling the investigative purpose of the stop. If the results of the initial stop dispel an officer’s suspicions, then the officer must end the investigative stop. If, however, the officer’s initial suspicions are confirmed or are further aroused, the scope of the stop may be extended and its duration may be prolonged.

Acrey, 148 Wn.2d at 747 (citing Williams, 102 Wn.2d at 739-41). Accordingly, “a detaining officer may ask a moderate number of questions during a Terry stop” without rendering the encounter custodial for purposes of Miranda, as long as the questions relate to the identity of the suspect or are intended to dispel the officer’s suspicions. Heritage, 152 Wn.2d at 218 (citing Berkemer, 468 U.S. at 439-40).

The unchallenged findings of fact establish: (1) a resident reported that an unknown person had parked on his private property and that the man had been there more than an hour and was behaving as if he was under the influence of drugs; (2) Bauman discovered Rasmussen still on the private property more than an hour after the resident made this report; (3) Rasmussen then gave Bauman inconsistent responses that failed to explain why he was on the property and that suggested that he was lying about his identity; and (4) Rasmussen’s speech was slurred and his responses were slow. Thus, the facts show that the initial purpose of the detention was to determine, at the resident’s request, why Rasmussen was on the property; this is clearly a legitimate purpose for such a detention. Additionally, the degree of intrusion on Rasmussen’s liberty was limited; Bauman merely questioned Rasmussen while Rasmussen sat in his car and did not take him into physical custody until after he finished questioning him.

Finally, the length of the detention, 10 to 15 minutes, was reasonable given Rasmussen’s evasive and confusing answers and his behavior. Bauman extended the detention only after Rasmussen gave inconsistent responses to his initial questions and Rasmussen’s behavior suggested he was under the influence of some type of drug or alcohol. These facts were clearly sufficient to warrant a continued investigatory detention to investigate a possible criminal trespass[7] and possible driving under the influence.[8] See State v. Glossbrener, 146 Wn.2d 670, 676, 49 P.3d 128
(2002).

Thus, the trial court properly determined Bauman’s actions did not exceed the proper scope of an investigatory stop and denied Rasmussen’s motion to suppress the statements he made to Bauman during the course of the investigation and the physical evidence Bauman discovered following the arrest.

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.

HOUGHTON, CJ. and ARMSTRONG, J., concur.