juvenile, appeals an unpublished Court of Appeals decision
affirming her conviction for possession of a controlled
substance. First, A.M. argues that it was manifest
constitutional error for the trial court to admit a detention
center inventory form where she signed a sworn statement
indicating that a backpack, which was discovered to contain
methamphetamine, was her property because it violated her
right against self-incrimination. Second, A.M. argues that
the affirmative defense of unwitting possession is an
unconstitutional burden-shifting scheme that violates her due
the admission of the inventory form is manifest
constitutional error because it violated her right against
self-incrimination and warrants reversal because it is not
harmless error. Because we find reversible constitutional
error, we decline to consider A.M.'s due process argument
and remand the case back to the trial court for further
proceedings consistent with this opinion.
entered a Goodwill store with two other women, a juvenile and
an adult, pushing a shopping cart with a backpack in it. The
adult woman put two Halloween costumes in the cart, and A.M.
opened the large pocket of the backpack to put the costumes
in. The loss prevention officer observed the entire incident
on the security cameras in the store. As the three women were
leaving the store without paying for the costumes, A.M. put
the backpack on her back. The loss prevention officer stopped
A.M. just outside of the store. A.M. was detained and
escorted to Goodwill's security room to await police
officers. When police arrived, they arrested A.M. for theft.
search incident to the arrest, police also searched the
backpack and, in one of the smaller outer pockets, found a
prescription bottle that looked to be a marijuana dispensary
bottle filled with what appeared to be several little
"baggies" inside. The officer believed it was
methamphetamine and took the baggies for further testing. The
substance was confirmed to be methamphetamine.
was booked in the juvenile detention center. At some point
after her arrest, but prior to being booked, A.M. invoked her
Miranda rights. A.M. was required to sign an
inventory form accounting for her belongings, which read,
"I have read the above accounting of my property and
money and find it to be accurate. I realize that property not
claimed within 30 days will be subject to disposal." Ex.
Transmittal Certificate, Ex. 3. When released, A.M. signed
the same form, which stated, "I have received the above
listed property." Id. The backpack was listed
in the inventory form as part of A.M.'s belongings.
was charged with one count of third degree theft and one
count of possession of a controlled substance. Clerk's
Papers (CP) at 54-55. The case proceeded to bench trial. At
trial, the State sought to admit the detention center
inventory form, which indicated the backpack was A.M.'s
property. The trial court admitted the form over defense
also raised the unwitting possession affirmative defense. She
testified that she had no knowledge of the methamphetamine in
the backpack and that she got the backpack from the other
juvenile's home. Verbatim Report of Proceedings (VRP)
(Feb. 14, 2017) at 108. A.M. testified it was likely the
other juvenile's or the adult woman's backpack and
not hers. Id. at 107-08. The trial court rejected
A.M.'s unwitting possession defense and convicted her of
both counts. She was sentenced to two days of custody with
credit for time served and no probation.
appealed her possession of a controlled substance conviction.
A.M. raised for the first time on appeal that the admission
of the inventory form was a violation of her right against
self-incrimination, and she also argued that the unwitting
possession defense was a violation of due process. The Court
of Appeals declined to review her Fifth Amendment claim,
holding that even if there was error, it caused no prejudice
to her case and, as such, she does not meet the requirements
for RAP 2.5(a)(3). See State v. A.M., No. 76758-5-I,
(Wash.Ct.App. July 30, 2018) (unpublished),
https://www.courts.wa.gov/opinions/pdf/767585.pdf. The court
also rejected her due process argument.
petitioned for review in this court on her due process claim
and Fifth Amendment claim. We granted review.
asserted error is reviewable under RAP 2.5
argues that admitting the detention center inventory form
violates her right against self-incrimination. Trial counsel
objected to the evidence on relevancy grounds, and the
exhibit was admitted. The Court of Appeals declined to review
the issue because it held that A.M. failed to meet the
requirements of RAP 2.5(a)(3) when she failed to show actual
we do not consider unpreserved errors raised for the first
time on review. State v. Scott, 110 Wn.2d 682, 685,
757 P.2d 492 (1988). However, manifest errors affecting a
constitutional right may be raised for the first time on
appeal. RAP 2.5(a)(3); In re Dependency of M.S.R.,
174 Wn.2d 1, 11, 271 P.3d 234 (2012). To determine whether
manifest constitutional error was committed there must be a
'"plausible showing by the [appellant] that the
asserted error had practical and identifiable consequences in
the trial of the case.'" State v.
O'Hara, 167 Wn.2d 91, 99, 217 P.3d 756 (2009)
(alteration in original) (internal quotation marks omitted)
(quoting State v. Kirkman, 159 Wn.2d 918, 935, 155
P.3d 125 (2007)).
2.5(a)(3) serves as a "gatekeeping function."
State v. Lamar, 180 Wn.2d 576, 583, 327 P.3d 46
(2014). The purpose of the rule is different from actually
reviewing the claimed error. Id. "The
requirements under RAP 2.5(a)(3) should not be confused with
the requirements for establishing an actual violation of a
constitutional right or for establishing lack of prejudice
under a harmless error analysis if a violation of a
constitutional right has occurred." Id.
the Court of Appeals held that because the alleged error
caused no prejudice, it would not review the claim. However,
RAP 2.5(a)(3) requires only that the defendant make a
plausible showing that the error resulted in actual
prejudice, meaning there were practical and identifiable
consequences at trial. See id.
well settled that article I, section 9 of the Washington
State Constitution and the Fifth Amendment to the United
States Constitution afford a defendant the right against
self-incrimination. When placing suspects in custody, police
must advise them of their right to remain silent and their
right to an attorney before interrogation. See
Miranda, 384 U.S. at 445. Absent a valid waiver,
statements obtained from an individual in custody are
presumed to be involuntary and violate the Fifth Amendment.
State v. Sargent, 111 Wn.2d 641, 648, 762 P.2d 1127
(1988). A person is "in custody" when her freedom
of movement is restricted. Oregon v. Mathiason, 429
U.S. 492, 494-95, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977). An
"interrogation" is "any words or actions on
the part of the police . . . that the police should know are
reasonably likely to elicit an incriminating response from
the suspect." Rhode Island v. Innis, 446 U.S.
291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) (footnote
defendant is placed in custody and has invoked her
Miranda rights, any words or actions on the part of
the police that are reasonably likely to elicit an
incriminating response violate the Fifth Amendment. Although
certain standard intake procedures may be required, we have
held that using those procedures against a defendant's
will violates the Fifth Amendment. See State v. Juarez
DeLeon, 185 Wn.2d 478, 487, 374 P.3d 95 (2016). For
example, in DeLeon, the defendants were asked to
fill out a gang affiliation form as part of the jail's
booking process. Id. at 484. At their trial, the
judge admitted the defendants' statements on the form
over the objection of defense counsel. Id. We held
that while the questions were meant for the purpose of
protecting inmates from "real and immediate threats of
violence," the defendants' Fifth Amendment rights
were violated by presenting those statements as evidence.
Id. at 488-89.
meets the first part of RAP 2.5(a)(3) because the asserted
error clearly implicates her Fifth Amendment right. Moreover,
A.M. makes a plausible showing that the error had practical
and identifiable consequences at trial because the trial
court admitted the evidence over the objection of counsel,
albeit on different grounds. The error is manifest from the
record. We thus proceed to the merits of the raised
was error to admit the inventory form
A.M. was arrested by police, she invoked her Miranda
rights. She was unquestionably in custody when she
was arrested at Goodwill and transported to the juvenile
detention center. Thus, any words or actions on the part of
the police that were reasonably likely to elicit an
incriminating response violate the Fifth Amendment. A.M. was
required to sign an inventory form listing the backpack,
which held the methamphetamine. Above the signature lines were
two statements: "I have read the above accounting of
my property and money and find it to be accurate. I
realize that property not claimed within 30 days will be
subject to disposal" and "I have received the above
listed property." Ex. Transmittal Certificate, Ex. 3
standard intake form itself does not necessarily violate a
defendant's Fifth Amendment rights, the signed statement
on the intake form violated A.M.'s right against
self-incrimination. She was clearly in custody, and signing
the intake form was involuntary. At trial, the juvenile
center supervisor testified that the juvenile signs the
intake form after reviewing it with staff. VRP at 89 (Feb.
14, 2017). Any refusal to sign the form or disagreement with
the inventory list by the juvenile would be noted on the
sheet. Id. at 96. Requiring a juvenile to sign a
form with that statement would be reasonably likely to elicit
an incriminating response from the suspect.
manifest constitutional error was not harmless
we consider whether the manifest error was harmless. A
constitutional error is harmless if "it appears
'beyond a reasonable doubt that the error complained of
did not contribute to the verdict obtained.'"
State v. Brown, 147 Wn.2d 330, 341, 58 P.3d 889
(2002) (internal quotation marks omitted) (quoting Neder
v. United States, 527 U.S. 1, 15, 119 S.Ct. 1827, 144
L.Ed.2d 35 (1999)). "An error is not harmless beyond a
reasonable doubt where there is a reasonable probability that
the outcome of the trial would have been different had the
error not occurred." State v. Powell, 126 Wn.2d
244, 267, 893 P.2d 615 (1995) (citing State v. Benn,
120 Wn.2d 631, 649, 845 P.2d 289 (1993)). "A reasonable
probability exists when confidence in the outcome of the
trial is undermined." Id.
closing arguments, when addressing the unwitting possession
defense, the prosecutor stated, "We know that she signed
for the backpack, indicated it was her property when she was
booked in. We know that she signed for it again when she was
released, even though today she has testified that it
wasn't her backpack." VRP at 118-19. In essence, the
prosecutor directly addressed and contradicted A.M.'s
unwitting possession defense by relying on the inventory form
to support the conviction. Without the admission of the
intake form, the prosecutor would not have been able to use
A.M.'s statements in the form to refute her unwitting
State bears the burden of proving that the constitutional
error was harmless. DeLeon, 185 Wn.2d at 488. Here,
the State argues there is overwhelming evidence that
"the property slip played no part in A.M.'s
conviction." Suppl. Br. of Resp't at 5. The State
points to the trial court's oral findings and lack of
reliance on the property sheet, as well as the findings of
fact as "verities on appeal." Id. at 4-5.
conclusion of trial, the court stated:
Quite frankly, whether she removed the backpack or whether
the backpack went with her from detention really was not a
big factor in my case. It was only-it was that she was the
only one that was possessing the backpack, and I don't
find that there was unwitting possession in this matter.
(Feb. 22, 2017) at 134. While the trial judge noted it was
"a close case," she "looked at a number of...
things" and found that "the respondent was the only
person that was putting items in the backpack, [and] she was
the one that walked out with the backpack." Id.
at 133-34. Thus, the State argues that their burden to prove
beyond a reasonable doubt A.M. would have still been
convicted is satisfied.
A.M. need prove only by a preponderance of the evidence the
affirmative defense of unwitting possession. See State v.
Deer, 175 Wn.2d 725, 735, 287 P.3d 539 (2012) (noting
the affirmative defense '"ameliorates the harshness
of a strict liability crime.'" (quoting State v.
Bradshaw, 152 Wn.2d 528, 538, 98 P.3d 1190 (2004))).
A.M. testified that the backpack was not hers and that she
believed it belonged to one of the other two women who were
with her "[b]ecause it came from their house" and
she "[saw the two women] bring it out of their
house." VRP (Feb. 14, 2017) at 108. The State relied on
her property form to counter that testimony.
A.M. testified that she never looked into the outer pocket of
the backpack where the methamphetamine was found, and the
evidence showed only that A.M. put the costumes into the main
pouch of the backpack. Id. She also testified that
even though the backpack was not her property, she took it
from the detention center only because "it belonged to
my best friend and her family at the time." Id.
at 110. When A.M. returned the backpack to her friend, she
confronted her friend, asking why the methamphetamine was in
the backpack. Id. A.M. testified that she never knew
methamphetamine was in the bag and that she had never seen
the pill bottle or the little baggies before. Id. at
111. In sum, A.M. testified that the adult female put the
children's costumes into the cart and that A.M. placed
the costumes into the large pocket of the backpack.
Id. at 107-09. The costumes were children's
costumes, and A.M. had no children. See id. at 107
(indicating the costumes were for the adult woman's
children). No witness saw A.M. look into the small side
pocket where the drugs were found. The only testimony about
ownership of the backpack came from A.M., who said that it
came from the adult female's home and that A.M. did not
own the backpack. A.M. also testified that the adult female
was "under the influence." Id. at 109.
conclusion of trial, the judge said she did not believe A.M.
"perjur[ed herself]." VRP (Apr. 11, 2017) at 157.
But the only evidence in the record that reasonably
contradicts unwitting possession of the methamphetamine is
the admitted inventory form signed by A.M. that indicates the
backpack as her property. The prosecutor referenced the fact
that A.M. signed for the backpack as her own on at least two
different occasions in the record. See VRP (Feb. 14,
2017) at 118-19; VRP (Apr. 11, 2017) at 149. Even though the
trial court said the inventory form was "not a big
factor," it did consider that evidence in making its
decision. VRP (Feb. 22, 2017) at 134. Based on a review of
the entire record, it is difficult to say beyond a reasonable
doubt, the trier would reach the same conclusion absent the
manifest constitutional error.
the admission of the inventory form was manifest
constitutional error in violation of A.M.'s right against
self-incrimination. As such, we reverse the lower court's
decision that the admission of the inventory form was proper.
we find there was reversible error here, we find delving into
A.M.'s due process argument is ...