IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 71094-0-1
Respondent, DIVISION ONE
v.
JUSTIN MICHAEL STOLTMAN, UNPUBLISHED
Appellant. FILED: January 5. 2015
Cox, J. —Justin Stoltman appeals his judgment and sentence, claiming
that the trial court erred when it denied his motions to suppress. Specifically, he
contends that he was subjected to custodial interrogation in violation of Miranda
v. Arizona,1 and that evidence in his case was seized without probable cause.
He also argues that the State's 31 month delay in filing charges violated his due
process rights. Because none of these arguments are persuasive, we affirm.
In July 2010, an officer with the state Fish and Wildlife agency received
information from an informant that two individuals were illegally crabbing at night.
These individuals were later identified as Justin Stoltman and Tamas Hibszki,
Stoltman's co-defendant.
1 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). No. 71094-0-1/2
The officer investigated the report, and a few hours later saw Stoltman
and Hibszki take a boat into a landing. The officer spoke with Stoltman and
Hibszki and saw a large coil of cable in the boat.
The officer asked them where the cable came from, and Hibszki said that
they had taken the cable from abandoned pilings to sell as scrap metal. The
officer believed that the pilings were property of the Port of Seattle and called
Port of Seattle police officers, who came and seized the cable. The officer
warned Stoltman and Hibszki that the boat violated state law, and he let them go
without then taking further action.
The next night, the same officer received another call from the informant,
who had again seen Stoltman and Hibszki. The informant told the officer that
Hibszki said that he and Stoltman were going out to get more cable because the
officer had seized the cable from them the prior night.
The officer and his partner took a Fish and Wildlife boat and found
Stoltman and Hibszki. Stoltman and Hibszki's boat again violated Washington
law by failing to have proper lights and a "noise-making system," and by failing to
properly display registration. The officer pulled up next to Stoltman and Hibszki
and saw a large pipe valve on the floor of their boat.
The officer asked Stoltman to board the Fish and Wildlife vessel, and
Stoltman did so. The officer then asked him about the valve. Stoltman told the
officer that the large pipe valve had been in the boat when he got on. After this
discussion, the officer returned Stoltman to his vessel and asked Hibszki to board No. 71094-0-1/3
the Fish and Wildlife vessel. After boarding, Hibszki stated that he and Stoltman
had picked up the valve from some friends.
The officer then asked Stoltman to re-board the officer's vessel. After
Stoltman boarded, the officer confronted Stoltman with the discrepancy in
explanations about the pipe valve. Stoltman then stated that he did not want to
speak with the officer anymore.
While the officer spoke with Stoltman and Hibszki, his partner obtained
permission from them to search their bags and found "freshly cut pieces of
copper and brass fittings" and metal handles.
The officer then cited Stoltman and Hibszki for the boating violations and
seized their bags and the large valve on the floor of their boat. The officer's
subsequent investigation revealed that the items were stolen from a large vessel.
The officer completed his investigation 28 months later. His investigation
was delayed because he took time off work to help care for a family member's
medical problems. Other members of the Fish and Wildlife division were unable
to work on the officer's cases during his absence due to their own caseloads.
In 2013, the State brought charges against Stoltman and Hibszki. This
was 31 months after the events giving rise to the charges. Before trial, Stoltman
and Hibszki moved under CrR 3.6 to suppress the physical evidence against
them, arguing that the officer lacked probable cause when he seized the
evidence. Stoltman and Hibszki also moved under CrR 3.5 to suppress their
statements made to the officer, arguing that they were obtained in violation of
Miranda. No. 71094-0-1/4
The court denied the motions after a combined CrR 3.5 and CrR 3.6
suppression hearing. A jury found Stoltman and Hibszki guilty.
Stoltman appeals.
MOTIONS TO SUPPRESS
Stoltman argues that the trial court erroneously denied his motion to
suppress the statements Stoltman made to the officer and his motion to suppress
the physical evidence the officer seized. We hold that the court properly denied
these motions.
Trial courts make written findings of fact and conclusions of law when
deciding a motion to suppress evidence.2 Appellate courts review challenged
findings of fact for substantial evidence, and determine "whether the findings
support the conclusions of law."3 Conclusions of law are reviewed de novo.4 CrR 3.5 Motion
Stoltman argues that the trial court erred when it denied his motion to
suppress statements made on board the Fish and Wildlife boat. He contends
that the officer obtained these statements in violation of Miranda by interrogating
him without informing him of his rights. Specifically, he argues that he was "in
custody," because the officer exceeded the scope of an investigatory stop when
he questioned Stoltman on board the boat. We disagree.
2 CrR 3.5; CrR 3.6.
3 State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009).
4 State v. Ortega, 177Wn.2d116, 122, 297 P.3d 57 (2013). 4 No. 71094-0-1/5
Because Stoltman implicitly concedes that the investigatory stop was
proper, the question before us is whether the events that followed gave rise to
the warning requirements of Miranda. That, in turn, requires a determination on
whether these events elevated the stop to custody.
Miranda prohibits the State from using a defendant's statements resulting
from "custodial interrogation" unless the defendant was informed of certain
rights.5 Courts presume that statements made in custody are involuntary and
violate the Fifth Amendment unless the defendant received Miranda warnings.6
Whether the defendant was in custody is a mixed question of fact and
law.7 "The defendant must show some objective facts indicating his or her
freedom of movement was restricted."8 And the defendant is in custody if "a
reasonable person in [the defendant's position would have felt that his or her
freedom was curtailed to the degree associated with a formal arrest."9
When an officer briefly detains a suspect during an investigatory stop, the
suspect is not in custody under Miranda.10 The officer "'may ask a moderate
5 Miranda, 384 U.S. at 444.
6 State v. Heritage, 152 Wn.2d 210, 214, 95 P.3d 345 (2004).
7 See In re Pers. Restraint of Cross, 180 Wn.2d 664, 681 n.7, 327 P.3d 660 (2014).
8 State v. Post, 118 Wn.2d 596, 607, 826 P.2d 172, amended, 118 Wn.2d 596, 837 P.2d 599 (1992).
9 Heritage. 152 Wn.2d at 218.
10 State v. Marcum, 149 Wn. App. 894, 909-10, 205 P.3d 969 (2009). No. 71094-0-1/6
number of questions ... to confirm or dispel the officer's suspicions without
rendering the suspect "in custody" for the purposes of Miranda.'"11
Washington courts analyze the scope of an investigatory stop with three
factors in mind: "(1) the purpose of the stop; (2) the amount of physical intrusion
upon the suspect's liberty; and (3) the length of time the suspect is detained."12 In Washington, an investigatory stop may include transporting a suspect a
short distance.13 Although transporting a suspect is "more intrusive than a mere
stop," it is permissible as part of an investigatory stop if a crime has been
reported.14
For example, in State v. Wheeler, a suspect was handcuffed, placed in a
police car and transported two blocks for identification following the report of a
burglary.15 The suspect was detained for a total of 5 to 10 minutes.16 In that case, the supreme court held that the suspect's detention was a part of a
permissible investigatory stop rather than the equivalent of a full arrest.17
11 Jd. at 910 (emphasis omitted) (quoting Heritage. 152 Wn.2d at 218).
12 State v. Wheeler, 108 Wn.2d 230, 235, 737 P.2d 1005 (1987).
13 id, at 236-37.
14 ]d. (quoting 3 Wayne R. LaFave, Search and Seizure § 9.2, at 26 (Supp. 1986)).
15 108 Wn.2d 230, 235, 737 P.2d 1005 (1987).
16 id, at 237.
17 Id. at 236-37. No. 71094-0-1/7
Here, Stoltman was not in custody under the controlling cases. Stoltman
implicitly concedes that the initial stop was a valid investigatory stop. But
Stoltman argues that when Stoltman boarded the Fish and Wildlife boat that was
adjacent to his boat and was questioned there, the officer exceeded the scope of
a valid investigatory stop by placing Stoltman in custody. Thus, the question is
whether Stoltman was in custody while on the Fish and Wildlife boat.
As discussed earlier, in an investigatory stop, officers may briefly detain
and question a suspect "to confirm or dispel [their] suspicions."18 Here, that was exactly what the investigating officer did.
The officer stopped Stoltman and Hibszki to investigate the report from the
informant that they were going to steal more cable. Based on prior contact with
these two individuals, the officer was suspicious about the pipe valve in their
possession. The prior night, they had admitted taking property, which the officer believed belonged to the Port of Seattle. Accordingly, the officer decided to
question each of them about the valve in their possession. Thus, the stop's
investigatory purpose was proper.
Additionally, the stop was brief. The court found that the time spent
questioning both Hibszki and Stoltman was less than 15 minutes. Stoltman
challenges this finding, but it is supported by substantial evidence. The officer testified that he detained Hibszki and Stoltman for a total of 25 minutes. But he
18 Marcum, 149 Wn. App. at 910 (emphasis omitted) (quoting Heritage, 152Wn.2dat218). 7 No. 71094-0-1/8
also testified that he spent less than 10 minutes speaking with both Hibszki and
Stoltman, and spent some of the 25 minutes writing out a citation.
The fact that the officer questioned Stoltman on the agency boat does not
transform the investigatory stop into custody, the equivalent of a full arrest. In
this case, the officer twice asked Stoltman if he would speak to him on the
agency boat, and both times Stoltman stepped onto the agency boat. There is
nothing in this record to support any claim that Stoltman was coerced.
Assuming without deciding that Stoltman's movement to the agency boat
was a "physical intrusion upon [his] liberty," it was much less than the intrusion in
Wheeler, which the supreme court held was part of an investigatory stop.19 In
that case, the suspect was handcuffed, placed in a police car, and transported
two blocks for identification.20 Here, Stoltman was not handcuffed and boarded
the agency boat next to his boat, after he was asked to do so by the officer.
The two boats were next to each other, so Stoltman moved only a short
distance for purposes of the questioning, far less than the two blocks under the
facts of Wheeler.
Accordingly, this was a valid investigatory stop that never escalated to
custody, the equivalent of an arrest. Thus, Miranda warnings were not required.
The trial court did not err in admitting Stoltman's statements and denying the
motion to suppress them.
19 See Wheeler, 108 Wn.2d at 235-37.
20 id, at 233. 8 No. 71094-0-1/9
Stoltman argues that he was in custody because the officer moved him
onto the boat, and no crime had been reported. Under Wheeler, transporting a
suspect during an investigatory stop is "'impermissible when the defendant's
conduct was suspicious but there has not been any report of a crime recently in
the vicinity.'"21
But the informant had reported that Hibszki and Stoltman intended to
commit a crime—taking more cable. Stoltman does not challenge the validity or
reliability of the report that the informant made. Thus, we fail to see the analytical
significance in the fact that the informant reported that Stoltman intended to
commit a crime, rather than reporting a completed crime. Accordingly, this
argument is unpersuasive.
CrR 3.6 Motion
Stoltman next argues that the trial court erred by failing to suppress the
physical evidence that the officer seized from Stoltman and Hibszki. Specifically, Stoltman argues that the officer lacked probable cause to seize the evidence. He
is mistaken.
Courts generally presume that warrantless searches and seizures violate
both the federal and state constitutions.22 But the State may rebut this
21 id, at 237 (internal quotation marks omitted) (quoting 3 Wayne R. LaFave, Search and Seizure § 9.2, at 26 (Supp. 1986)).
22 State v. Gatewood. 163 Wn.2d 534, 539, 182 P.3d 426 (2008). No. 71094-0-1/10
presumption by showing that a search falls within one of the narrow exceptions to
the warrant requirement.23
One exception to the warrant requirement is the plain view doctrine. "'A
plain view search' occurs when law enforcement officers '(1) have a valid
justification to be in an otherwise protected area and (2) are immediately able to
realize the evidence they see is associated with criminal activity.'"24
Courts consider "both the prior information known to police and the
surrounding circumstances when evaluating whether items were immediately
apparent as evidence."25 For example, officers properly searched and seized
stolen radio equipment when they had already found stolen property on the
premises, knew the house belonged to a convicted felon, and the amount of
radio equipment was "unusually large."26
Under the plain view doctrine, officers do not need to be certain that the
item is associated with criminal activity—probable cause that the item is evidence
is sufficient.27
23 State v. Day, 161 Wn.2d 889, 893-94, 168 P.3d 1265 (2007).
24 State v. Ruem, 179Wn.2d 195, 200, 313 P.3d 1156 (2013) (quoting State v. Hatchie, 161 Wn.2d 390, 395, 166 P.3d 698 (2007)).
25 State v. Garcia, 140 Wn. App. 609, 625, 166 P.3d 848 (2007).
26 State v. Legas, 20 Wn. App. 535, 542, 581 P.2d 172 (1978).
27 State v. Hudson, 124 Wn.2d 107, 118, 874 P.2d 160 (1994).
10 No. 71094-0-1/11
Here, the court correctly concluded that the officer had probable cause to
seize the pipe valve and the other items found in the bag after the officer
obtained permission to search the bag. These circumstances and the officer's
knowledge about the prior night's events provided probable cause.
The prior night, the officer had caught Stoltman and Hibszki with stolen
cable they intended to sell as scrap metal. Additionally, the officer knew that
Stoltman and Hibszki told the informant that they were going out to get more
cable. And the officer saw a large pipe valve on the floor of Stoltman and
Hibszki's boat, which was where the officer had seen the stolen cabling the prior
night. The officer observed that the pipe valve "really looked out of place" and
"obviously came from a large ship."28 And the pieces of copper and brass in
Stoltman and Hibszki's bags appeared "freshly cut."29
Further, Stoltman and Hibszki gave conflicting statements about how they
came into possession of the valve when separately questioned. Stoltman stated
that he did not know where the valve came from, and that it had been on the boat
when he boarded. Hibszki stated that he and Stoltman had gotten the valve from
some friends.
Under these circumstances, the officer had probable cause to believe that
the pipe valve and other metal fittings were stolen property.
Stoltman argues that the officer lacked probable cause based on the
officer's testimony at the suppression hearing. Specifically, he points to a
28 Report of Proceedings (Aug. 29, 2013) at 33, 95.
29 Clerk's Papers at 116. 11 No. 71094-0-1/12
statement by the officer that he "wanted to determine whether or not [the pipe
valve] was stolen."30 Stoltman argues ifthe officer needed "to determine"
whether the pipe valve was stolen, it was not immediately apparent as evidence.
But the context of the officer's statement shows that it was made
regarding his decision to question Stoltman and Hibszki, not his decision to seize
the valve. After Stoltman and Hibszki could not convincingly explain how they
acquired the valve, the officer had probable cause to believe it was stolen.
Stoltman also points to the officer's statement that he "probably had
probable cause."31 But the court, not the officer, decides whether probable cause
existed. Thus, we reject this argument.
Stoltman also argues that this case is analogous to State v. Murray.32 But
Murray is distinguishable from the present case.
In that case, officers had consent to search an apartment for equipment
stolen from a school.33 During the search, an officer saw a portable television.34 The officers were not looking for the television, because it was not missing from
the school.35 Although "there was nothing unusual about the location of [the
television] as to its utility and usability," the officer seized the television to copy its
30 Report of Proceedings (Aug. 29, 2013) at 33.
31 id, at 95.
32 84 Wn.2d. 527, 527 P.2d 1303 (1974).
33 Murray. 84 Wn.2d at 528-29.
34 id, at 529.
35 id, at 536. 12 No. 71094-0-1/13
serial number.36 Under those circumstances, the officer did not have "immediate
knowledge" that the television was evidence of a crime.37
Here, in contrast, the pipe valve appeared out of place, and Stoltman and
Hibszki made conflicting statements about how they came into possession of it.
Additionally, as described earlier, the officer knew not only that Stoltman and
Hibszki had stolen scrap metal the night before, but also that they were planning
to steal more that night. Thus, the circumstances in this case are distinguishable
from the circumstances in Murray.
Stoltman also assigns error to three of the court's factual findings. He
argues that the trial court erroneously found that he told the officer that he and
Hibszki were on a "pleasure cruise" on July 26, when he actually made the
statement on July 27. Stoltman also challenges the finding that the officer found
five metal handles in Stoltman's bag, arguing that he actually had seven. Finally,
Stoltman alleges that the court erroneously found that, when Stoltman told the
officer he was collecting the metal handles for a friend, Stoltman could not
remember the name of his friend. These challenged findings are not material to
the questions before us. Accordingly, we do not address them any further.
PREACCUSATORIAL DELAY
Stoltman finally argues that the State's delay in filing charges violated his
right to due process. We hold there was no violation of his right to due process.
36 Id, at 534-35.
37 Id. at 535.
13 No. 71094-0-1/14
The State's delay in filing charges may violate due process, even ifthe
charges are filed within the statute of limitations.38 Washington courts analyze
preaccusatorial delay under a three prong test:
(1) [T]he defendant must show actual prejudice from the delay;
(2) if the defendant shows prejudice, the court must determine the reasons for the delay;
(3) the court must then weigh the reasons and the prejudice to determine whether fundamental conceptions of justice would be violated by allowing prosecution.[39]
This test allows the court to analyze "the underlying question of whether a delay
has resulted in a due process violation by violating fundamental conceptions of
justice."40
The State's preaccusatorial delay does not need to be intentional in order
to violate due process.41 But negligent delay requires greater prejudice to violate
due process.42 Delays caused by "sick leave, compensation time, vacations, and
training courses are normal routine .. . [and] are as much a part of the judicial
process as investigatory activities."43
38 United States v. Lovasco, 431 U.S. 783, 789-90, 97 S. Ct. 2044, 52 L. Ed. 2d 752 (1977); State v. Oppelt. 172 Wn.2d 285, 288-89, 257 P.3d 653 (2011).
39 Oppelt. 172 Wn.2d at 295.
40 id,
41 id, at 291-92.
42 id, at 292-93.
43 State v. Alvin. 109 Wn.2d 602, 606, 746 P.2d 807 (1987). 14 No. 71094-0-1/15
The loss of witness testimony because of a delay does not necessarily
violate due process.44 In State v. Oppelt, the defendant was charged with child
molestation.45 After the alleged molestation, the victim's great-grandmother gave
the victim lotion for her genital area, and took the victim to a medical
examination, which revealed redness around the genitals.46
The State filed charges after a six-year delay.47 During the delay, the
great-grandmother developed a medical condition affecting her memory and
could not remember what type of lotion she gave to the victim.48 The defendant
argued that he had been prejudiced, because he could not discover the type of
lotion that had been applied, and thus could not determine ifthe lotion could have
caused the redness.49 The court rejected this argument, because the defendant
could still argue that the lotion might have caused the redness.50
44 See Oppelt, 172 Wn.2d at 296.
45 172 Wn.2d 285, 257 P.3d 653 (2011).
46 id, at 287.
47 id, at 288.
48 id, at 296.
49 id,
50 id, 15 No. 71094-0-1/16
This court reviews de novo whether preaccusatorial delay violates due
process.51 The court reviews "the entire record to determine prejudice and to
balance the delay against the prejudice."52
Here, the State's preaccusatorial delay did not violate due process.
We agree with the trial court determination that Stoltman suffered some
prejudice. During the State's delay in filing charges, the informant died. Thus,
Stoltman was unable to interview the informant.
The court also found that the State's delay was not intentional. The court
found that the officer who investigated the case "put all of his investigations on
'the back burner' so that he could care for his father." The officer testified that
other officers in his department could not work on his cases due to their
workloads.
Here, balancing the prejudice and the reasons for the delay, there was no
violation of due process. Because the State's delay was not intentional, Stoltman
must show a higher degree of prejudice.
Although Stoltman lost the ability to interview a potential witness, he does
not point to any specific information that the witness would have provided to assist in his defense. Instead, Stoltman argues that he was unable to investigate
the informant's statements to the officer. But, just as in Oppelt, Stoltman was still
free to make an argument. He could have argued that the court should not trust
51 State v. McConnell. 178 Wn. App. 592, 605, 315 P.3d 586 (2013), review denied, 180 Wn.2d 1015 (2014).
52 Oppelt, 172 Wn.2d at 290.
16 No. 71094-0-1/17
the informant's statements. And Stoltman was able to extensively cross-examine
the investigating officer on the informant's criminal history and reliability, which
he does not challenge in this appeal.
Additionally, the delay in this case has been characterized as "normal
routine" in the cases. Delays caused by "sick leave, compensation time,
vacations, and training courses are normal routine . . . [and] are as much a part
of the judicial process as investigatory activities."53
Thus, the prejudice to Stoltman was slight, and the State had valid
reasons for the delay. Accordingly, we conclude that the delay did not "violat[e]
fundamental conceptions of justice."54
Stoltman also argues that he was prejudiced because the delay affected
his ability to plea bargain. The State was unwilling to allow Stoltman to plead
guilty to lesser misdemeanor charges, as the statute of limitations for
misdemeanors had already run. But defendants have a right to plead guilty as
charged by the State.55 They do not have a right to plead guilty to lesser
offenses.56 Accordingly, Stoltman's argument is unpersuasive.
Stoltman also argues that he was prejudiced by the State's delay,
because the delay allowed the State to "upgrade[] its technology" to search for
palm prints. During his investigation, the Fish and Wildlife officer found a partial
53 Alvin, 109 Wn.2d at 606 (emphasis added).
54 Oppelt, 172 Wn.2d at 295.
55 State v. Bowerman. 115 Wn.2d 794, 799, 802 P.2d 116(1990).
56 See id.
17 No. 71094-0-1/18
palm print on the vessel from which the valve and pipes were removed. In 2010,
King County was unable to search for palm prints in its database. In 2013, the
State was able to run the palm print through its database, and locate an
additional witness.
But Stoltman does not cite to any authority indicating that technological
advances during a preaccusatorial delay prejudice the defendant. Accordingly,
we need not address this argument any further, as it is unpersuasive.
We affirm the judgment and sentence. Cot, X
WE CONCUR:
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