Opinion
No. 26833-1-III.
February 5, 2009.
Appeal from a judgment of the Superior Court for Spokane County, No. 07-1-03874-5, Ellen K. Clark, J., entered January 25, 2008.
Affirmed by unpublished opinion per Kulik, A.C.J., concurred in by Sweeney and Brown, JJ.
In December 2007, a jury convicted Jeffrey Salvage of voyeurism and resisting arrest. Mr. Salvage appeals his conviction for voyeurism, arguing that the trial court erred by failing to suppress his response to the police officer's request to see the bottom of his shoe. He asserts that a suspect's response of displaying the sole of his shoe is a testimonial statement that, when made in the absence of Miranda warnings, must be suppressed. We disagree and affirm the conviction.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
FACTS
About midnight on September 11, 2007, officers responded to the area of 1218 West York following a 911 call reporting a prowler or voyeur. When the officers arrived, a group of people were standing on the porch outside the house at 1219 West York, directly across the street from where the alleged incident took place. The group consisted of approximately five individuals: Alice Hernandez, the homeowner of 1219 West York, her two sons, Christopher Hernandez and Daniel Brown, and their friends, Arsenio Buckley and Jeffrey Salvage.
Officer Tony Meyer asked the group if they knew why he was there. A young male, later identified as Mr. Salvage, stated, "`I'm not gonna crawl up a tree and look in a window or whatever they did.'" Report of Proceedings (RP) at 12. Officer Meyer thought that Mr. Salvage's statement was odd because Mr. Salvage had no indication at that point that a tree had been involved in the incident. And Mr. Salvage had not been asked if he had climbed up a tree and looked into a bedroom window. Following Mr. Salvage's comment, the group stated that they had no idea why the police were there. Officer Meyer told the group he would go across the street to 1218 West York to get more information. At that point, Mr. Salvage was not a suspect and was not under arrest.
Officer Meyer then went to 1218 West York, where Officer Jeff McCollough was talking with the alleged victim, Ashlynn Ethridge, and her roommate, Katherine Ferguson. Sergeant Charles Reynolds and Officer McCollough observed shoe prints on the east side of the house at the base of a large tree just outside of the victim's bedroom window. The officers also observed a handprint smudge on the house near the window. It appeared that somebody had been leaning against the house from the tree.
The officers went back to talk to the individuals at 1219 West York. In light of Mr. Salvage's earlier unsolicited statement about the tree, Officer Meyer asked Mr. Salvage to talk with him. Mr. Salvage complied, came outside the fence, and sat down on a railroad tie planter by the sidewalk. Later, at the suppression hearing, Officer Meyer testified Mr. Salvage was not free to leave at that point, and he would have prevented him from doing so. Mr. Salvage, however, testified that he felt free to leave while Officer Meyer was questioning him.
Officer Meyer asked Mr. Salvage whether he had gone to the 1218 West York address. Mr. Salvage admitted that he had gone there earlier to ask two females for a cigarette, but said that he had stayed on the sidewalk. When Officer Meyer asked if he had looked in the window, Mr. Salvage denied going to the window on the east side of the house.
While questioning Mr. Salvage, Officer Meyer asked to see the sole of Mr. Salvage's shoe. Mr. Salvage responded by quickly putting his shoe up and then back down. Because Officer Meyer did not get a good look, he asked Mr. Salvage to see the shoe again. Again, Mr. Salvage put his shoe up very quickly and then back down. Meanwhile, Officer McCollough and Sergeant Reynolds examined the bottom of Mr. Brown's, Mr. Hernandez's, and Mr. Buckley's shoes.
Officer McCollough and Officer Meyer determined that they had probable cause to arrest Mr. Salvage. Mr. Salvage was then arrested and struggled to get away when the officers attempted to handcuff him. Once Mr. Salvage was handcuffed and was being escorted to the police car, he called to his friends who were standing on the porch of the nearby house. Mr. Salvage yelled: "`Danny Boy, come and swing on these fools.'" RP at 8. Mr. Salvage continued to make other statements in an effort to convince his friends to assault the officers.
Mr. Salvage was charged with one count of voyeurism under RCW 9A.44.115(2)(a) and one count of resisting arrest under RCW 9A.76.040.
On December 10, the trial court held a pretrial suppression hearing. The State did not introduce any evidence that Mr. Salvage was ever advised of his constitutional rights. The State argued that Mr. Salvage's unsolicited statements during his initial contact with police and the statements he made after being placed under arrest should be admissible.
Defense counsel responded that the statements were inadmissible because they were made during a custodial interrogation and without the benefit of Miranda warnings. The trial court concluded that Mr. Salvage's act of showing the officers the bottom of his shoes was not a verbal statement and would not be suppressed.
At trial, the photographs and the shoes Mr. Salvage was wearing that evening were entered into evidence and submitted to the jury. Following testimony and deliberation, the jury found Mr. Salvage guilty on both counts. This appeal followed.
ANALYSIS
Mr. Salvage contends that the trial court erred by failing to suppress the testimony concerning his display of his shoe sole. He argues that when police questioning induces a suspect to reveal the location of incriminating evidence, the nonverbal act is testimonial in nature and subject to suppression under Miranda.
Mr. Salvage claims that his act of showing the sole or tread of his shoe was a nonverbal testimonial statement in response to a request by a state agent. By complying with the officer's request, Mr. Salvage revealed the pattern of his shoe tread which, under the facts of this case, was incriminating evidence. In the absence of Miranda warnings, Mr. Salvage contends that his responsive statement, the display of his shoe tread, should have been suppressed. He urges this court to reverse his conviction and remand for retrial excluding the testimony concerning his shoe.
Miranda warnings are designed to protect a suspect's right not to make incriminating confessions or admissions to police while in the coercive environment of custodial police interrogation. State v. Harris, 106 Wn.2d 784, 789, 725 P.2d 975 (1986). " Miranda warnings must be given when a suspect endures (1) custodial (2) interrogation (3) by an agent of the State." State v. Heritage, 152 Wn.2d 210, 214, 95 P.3d 345 (2004). In the absence of Miranda warnings, a suspect's statements during custodial interrogation are presumed involuntary and may be inadmissible at trial. State v. Sargent, 111 Wn.2d 641, 647-48, 762 P.2d 1127 (1988).
The State concedes that no Miranda warnings were given to Mr. Salvage. The question is, therefore, whether the showing of a shoe sole is a nonverbal act within the coverage of Miranda.
Citing State v. Wethered, 110 Wn.2d 466, 755 P.2d 797 (1988), Mr. Salvage contends that for purposes of the Fifth Amendment, a nonverbal act may be testimonial in nature and may be suppressed if done while in custody in the absence of Miranda warnings. He contends that this case is analogous to State v. Spotted Elk, 109 Wn. App. 253, 34 P.3d 906 (2001) and State v. Lozano, 76 Wn. App. 116, 882 P.2d 1191 (1994).
In each of those cases, a defendant produced heroin when asked by officers if she had "anything on her person." The court in each case found the production of the heroin to be a nonverbal testimonial act, inadmissible without prior Miranda warnings. Spotted Elk, 109 Wn. App. at 259; Lozano, 76 Wn. App. at 118-19.
The State responds that Mr. Salvage's reliance on Wethered is misplaced. The State further argues that both Wethered and State v. Dennis, 16 Wn. App. 417, 558 P.2d 297 (1976) draw a distinction between acts of the defendant that are incriminating in and of themselves, and acts that are simply acts. We agree.
The State correctly argues that Dennis and Wethered distinguish between a suspect's act which in itself constitutes an admission (i.e., a "confession of knowledge") and those acts which make an accused the source of real or physical evidence. Wethered, 110 Wn.2d at 471; Dennis, 16 Wn. App. at 422-23. "The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling `communications' or `testimony,' but that compulsion which makes a suspect or accused the source of `real or physical evidence' does not violate it." Schmerber v. California, 384 U.S. 757, 764, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966). Similarly, the court in Dennis stated:
We see a vast difference between the act of submitting to a search which might unearth incriminating real or physical evidence, United States v. Thompson, 475 F.2d 1359 (5th Cir. 1973), but carries with it no admission of guilty knowledge, and an act which says in effect, "Yes, I knew there was a supply of cocaine in my refrigerator." In fact, a willing consent to search could arguably be advantageous at trial to a defendant claiming unwitting or unknowing possession.
Dennis, 16 Wn. App. at 423 n. 1.
Here, Mr. Salvage's act of showing his shoe sole in response to the officer's request was not a testimonial act requiring Miranda warnings. Under these facts, the act of displaying the shoe sole did not, in itself, constitute a confession, and carried with it no admission of guilty knowledge. The admission of this evidence at trial was not a violation of Mr. Salvage's Fifth Amendment privilege against self-incrimination.
Accordingly, we affirm the conviction.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
Brown, J. and Sweeney, J., Concur.