Appeal from Franklin Superior Court. Docket No: 13-8-50042-1. Judge signing: Honorable Bruce A Spanner. Judgment or order under review. Date filed: 06/17/2013.
Shawn P. Sant, Prosecuting Attorney, and Kim M. Kremer, Deputy, for appellant.
Eric J. Nielsen and Jared B. Steed (of Nielsen Broman & Koch PLLC ), for respondent.
Authored by Robert E. Lawrence-Berrey. Concurring: Laurel H. Siddoway, Kevin M. Korsmo.
[187 Wn.App. 316] ¶ 1 Invocation of the right to remain silent must be unequivocal. Here, while being held [187 Wn.App. 317] for custodial interrogation, 15-year-old I.B. shook his head in the negative after police asked him if he was willing to talk. Nevertheless, police continued their questioning and I.B. made inculpatory statements. The trial court suppressed the statements, concluding that I.B.'s shake of the head signaled an unequivocal assertion of his right to remain silent. The State appeals, arguing that I.B.'s head shake was an ambiguous act subject
to multiple interpretations. We disagree and affirm the trial court.
¶ 2 Police arrested 15-year-old I.B. for residential burglary. Pasco Police Officer Ryan Flanagan handcuffed I.B. and took him to an interview room at the police station. During the custodial interrogation, I.B. made inculpatory statements. These statements are not part of the record on appeal. The State charged I.B. with one count of residential burglary.
¶ 3 The State moved to admit I.B.'s statements. At the CrR 3.5 hearing, Police Officer Ray Aparicio testified that he read I.B. his Miranda  rights, including " special warnings for juveniles." Report of Proceedings (RP) at 7. Officer Aparicio and Officer Flanagan both testified that I.B. did not express any confusion about the warnings and did not ask questions. After the advice of Miranda rights, Officer Aparicio asked I.B. if he went to high school. I.B. responded yes. RP at 7. The officer then asked I.B. if he was willing to talk with police about " some things, why we were [ ]here." RP at 19. According to Officer Aparicio, I.B. did not respond verbally but " shook his head side to side." RP at 8. When asked his understanding of I.B.'s response, Officer Aparicio responded, " In my experience, it means 'no,' but he didn't say 'no,' so I don't know what was going through his mind." RP at 12. Officer Flanagan described I.B.'s response as follows: " [I.B.] looked away as he slightly shook his head in [187 Wn.App. 318] a fashion that I guess would mean 'no,' to an extent." RP at 19-20. Officer Flanagan admitted during cross-examination that he understood I.B.'s head shake to mean no. RP at 24.
¶ 4 The officers left the interview room to discuss whether they should stop their questioning. They decided that I.B.'s head shaking did not sufficiently indicate his desire for the interview to cease. After about five minutes, they returned to the interview room and resumed questioning I.B. During cross-examination, defense counsel questioned Officer Aparicio as follows:
Q. Okay, so when you come back in, did you resume questioning [I.B.] about the incident that he had told you ...