Appeal from Superior Court of King County. Docket No: 95-1-00488-8. Date filed: 05/26/95. Judge signing: Hon. William L. Downing.
Authored by Ann L. Ellington. Concurring: Ronald E. Cox, C. Kenneth Grosse.
The opinion of the court was delivered by: Ellington
ELLINGTON, J. -- Hortencia Morga was convicted of possession with intent to deliver heroin and cocaine. Because we find that statements Morga made prior to arrest were not obtained while she was in police custody as that phrase is construed for Miranda *fn1 purposes, and were therefore not subject to suppression, and that the evidence was sufficient to establish that Morga was in constructive possession of the narcotics seized, we affirm the judgment of the trial court.
Morga claims that the trial court erred by failing to suppress her statements to the police made before she was given her Miranda warnings because the statements were obtained while she was in police custody and subject to police interrogation. We disagree. *fn2
"'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." State v. Ferguson, 76 Wash. App. 560, 566, 886 P.2d 1164 (1995) (citing State v. Post, 118 Wash. 2d 596, 606, 826 P.2d 172, 837 P.2d 599 (1992) and State v. Sargent, 111 Wash. 2d 641, 649-50, 762 P.2d 1127 (1988)). The inquiry into whether the defendant was restrained is an objective one: "how would a reasonable person in the suspect's position have understood the situation?" Ferguson, 76 Wash. App. at 566. "The issue is not whether a reasonable person would believe he or she was not free to leave, but rather 'whether such a person would believe he was in police custody of the degree associated with formal arrest'." Ferguson, 76 Wash. App. at 566 (quoting 1 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure, sec. 6.6, at 105 (Supp. 1991)). Thus, neither the atmosphere nor the psychological state of the defendant is a factor in deciding whether an interview is 'custodial.'" State v. Sargent, 111 Wash. 2d 641, 649-50, 762 P.2d 1127 (1988) (citing California v. Beheler, 463 U.S. 1121, 1125, 103 S. Ct. 3517, 77 L. Ed. 2d 1275 (1983)).
Morga's first encounter with the police was when the two officers approached her in the 7-Eleven parking lot as she was standing near the public telephone. It soon became obvious to the officers that they would be unable to effectively communicate with Morga because she did not speak English. The officers motioned for Morga to accompany them back to the Ford Mustang in which Morga had been observed. One of the officers opened the car door, stuck his head inside, and spoke to the boy seated in the back seat. The boy, Morga's son, spoke fluent English and told the officers that he and his mother had come with "Carlos," that Carlos had walked in the direction of the Ramada Inn, and that he and his mother were waiting for him to return. The officers called a Spanish-speaking officer on a cellular phone, and Morga spoke to him. There is nothing in the record to suggest that Morga was in custody during this initial encounter with the officers.
As the trial court found, the first meaningful communication between Morga and the police was her telephone conversation with Sergeant Navarette. During this conversation, Sergeant Navarette, speaking Spanish, asked Morga her name, advised her that Carlos had been arrested, and asked her if she would be willing to come to the police station to finish the conversation. We find nothing deceptive about the sergeant's questions. They were straightforward and noncoercive and would not lead a reasonable person to believe he or she was in police custody to a degree associated with formal arrest.
Moreover, we find nothing in the record to indicate that the officers on the scene with Morga indicated by words or otherwise that she had no choice but to talk to Sergeant Navarette on the telephone. Both officers testified that they simply handed the cellular phone to Morga, who then spoke to the sergeant in Spanish. There is no custodial interrogation where a person is speaking to an officer on the telephone and is free at any time to hang up the phone or otherwise stop speaking over the phone. State v. Mahoney, 80 Wash. App. 495, 498, 909 P.2d 949 (1996).
Morga's next encounter with the police was the trip to the police station. We find that the following statements of the trial court are supported by substantial evidence and support the court's Conclusion that Morga was not in custody for purposes of Miranda during the trip:
Obviously [Morga] could not talk to the officers at the scene. The information that would be necessary for them to obtain for filling-out of an incident report, criminal or civil in nature, that could not be done at the scene. Either Sergeant Navarette would have to come to the scene, or another Spanish-speaking officer, and Ms. Morga would need to wait there until that could be done; or, alternatively, she could come in and talk with the Spanish-speaking sergeant at the police precinct. It was a sensible, practical solution to the problem; it was one with which Ms. Morga readily agreed.
The testimony of Ms. Morga was, first of all, in response to the question: "Did you think you were under arrest?"
"No. Because I wasn't to blame."
And then, secondly, as to the ride downtown: "Did you think ...