FILED MAY 12, 2020 In the Office of the Clerk of Court WA State Court of Appeals Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 36542-5-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) KENNETH LEROY STEPHENS, ) ) Appellant. )
FEARING, J. — This appeal asks when is an arrest an arrest? A law enforcement
officer handcuffed appellant Kenneth Stephens and advised him of his Miranda rights,
then questioned Stephens before informing him he was under arrest. Stephens contends
the officer arrested him before questioning him and that a statement confessing to theft
must be suppressed in addition to methamphetamine found during a search incident to
arrest. The State argues that the arrest occurred only after the officer announced the
arrest. We agree with Stephens and reverse his conviction for possession of a controlled
substance. No. 36542-5-III State v. Stephens
FACTS
An employee at Stan’s Merry Mart, in Wenatchee, called 911 after seeing a man
in the store who she believed stole video equipment earlier in the week. The man was
later discovered to be Kenneth Stephens. The employee described the man to 911 as
white, in his mid-thirties, and wearing a black baseball cap and a black and gray jacket.
The employee stated the man had not stolen anything that day, but video footage showed
him stealing cameras on previous days. According to the employee, the store wanted to
press charges for the previous thefts. The employee further advised 911 that the suspect
left the store and was riding a bike heading south on Mission Street.
Wenatchee Police Officer Albert Gonzalez responded to the Stan’s Merry Mart
911 call and went to Mission Street. Officer Gonzalez located Kenneth Stephens, who
rode a bike south on Mission Street and matched the caller’s description of the alleged
thief’s clothing, race, and sex. Stephens, however, did not match the age described by the
employee as he was in his late-fifties. Gonzalez recognized Stephens due to previous
contacts.
Officer Albert Gonzalez informed Kenneth Stephens that 911 received a call about
him from Stan’s Merry Mart. Stephens dismounted his bicycle. He denied any
2 No. 36542-5-III State v. Stephens
involvement in a theft. Officer Gonzalez told Stephens he could not leave. Gonzalez
then handcuffed Stephens and read the Miranda warnings from a card.
After Mirandizing and cuffing Kenneth Stephens, Officer Albert Gonzalez began
questioning. Stephens continued to deny any knowledge about stolen cameras. Gonzalez
told Stephens that witnesses could identify him in video footage. Stephens then admitted
to stealing the cameras and selling them for $50. Stephens told Officer Gonzalez that he
could retrieve the cameras if allowed to go free. Angela Thresher, an employee of Stan’s
Merry Mart, arrived at the scene and positively identified Stephens as the suspect.
Gonzalez then told Stephens that he was under arrest. Gonzalez searched Stephen’s
person and located two bags with a crystal substance and a pipe coated in a crystal
residue. At the Washington State Patrol Crime Laboratory, the substance on the pipe
tested positive for methamphetamine.
PROCEDURE
The City of Wenatchee initially charged Kenneth Stephens, in Chelan County
District Court, with third degree theft. Later, the city dismissed its charge and the State of
Washington filed, in superior court, an information charging Stephens with first degree
trafficking in stolen property and unlawful possession of a controlled substance,
methamphetamine.
3 No. 36542-5-III State v. Stephens
Kenneth Stephens moved to suppress all evidence obtained as a result of his
detainment by Officer Albert Gonzalez. Stephens contended that Officer Gonzalez
placed him under custodial arrest when he first handcuffed him and that Gonzalez lacked
probable cause to arrest him. Kenneth Stephens also filed a motion to dismiss the charges
due to a delay in the State’s filing charges, during which delay law enforcement allegedly
destroyed evidence.
The trial court denied the motion to suppress evidence. The court entered findings
of fact, two of which Kenneth Stephens challenges on appeal:
2.5 Officer Gonzalez detained Defendant to investigate the reported theft of the video cameras. Officer Gonzalez advised Defendant of his Constitutional (Miranda) rights from a printed card, and Defendant stated he understood and was willing to speak. 2.6 Officer Gonzalez advised Defendant that they were investigating a theft of some video cameras from Stan’s and that Defendant had been positively identified by employees; Defendant admitted to stealing the items and selling them. At this point, Defendant was informed he was under arrest, arrested, and searched incident to arrest (upon which meth was found on Defendant’s person).
Clerk’s Papers (CP) at 173 (emphasis added) (alteration in original). The trial court
concluded, based on the call from the Stan’s Merry Mart employee and Officer
Gonzalez’s reasonable conclusion that Kenneth Stephens matched the description of the
person in the store, that Gonzalez had reasonable suspicion to conduct an investigatory
4 No. 36542-5-III State v. Stephens
stop of Stephens. The trial court also denied the motion to dismiss based on an alleged
violation of speedy trial rights.
The trial jury convicted Kenneth Stephens of unlawful possession of a controlled
substance, methamphetamine. The jury found Stephens not guilty of trafficking in stolen
property in the first degree.
The sentencing court denied Kenneth Stephens’s request for a residential drug
offender sentencing alternative. The court also denied Stephens’s wish for credit for time
already served. The sentencing court imposed $500 in legal financial obligations with a
stipulation that the obligations bear interest from the date of the judgment.
LAW AND ANALYSIS
Kenneth Stephens assigns six errors to trial court proceedings. First, the trial court
erred when refusing to suppress the evidence of the methamphetamine found on his
person because Officer Albert Gonzalez arrested him before questioning him and
Gonzalez lacked probable cause to arrest him. Second, the trial court erred when refusing
to dismiss charges based on the purported infringement of Stephens’s speedy trial rights.
Third, insufficient evidence supported the conviction for possession of a controlled
substance. Fourth, the sentencing court improperly denied Stephens a residential drug
offender sentencing alternative. Fifth, the sentencing court erroneously failed to give
5 No. 36542-5-III State v. Stephens
Stephens credit for time already served in jail. Sixth, the sentencing court mistakenly
imposed interest on the legal financial obligations assessed. Because we accept Kenneth
Stephens’s first assignment of error, we do not address his other assignments.
This appeal presents unique circumstances. Almost immediately after first
confronting Kenneth Stephens, Officer Albert Gonzalez placed Stephens in handcuffs and
read him the Miranda rights. Thereafter, Gonzalez asked Stephens about his potential
involvement in the theft of cameras from Stan’s Merry Mart. After Stephens confessed
guilt, Gonzalez told Stephens that he was under arrest. Officer Gonzalez conducted a
search incident to arrest and found methamphetamine on Stephens’s person. Typically,
the law enforcement officer approaches a suspect and asks the suspect about involvement
in a crime before handcuffing him and advising him of constitutional rights. Typically,
the officer advises the accused of his Miranda rights only after informing the accused he
is under arrest.
The obverse order of events attending to the intercourse between Officer Albert
Gonzalez and Kenneth Stephens requires us to decide whether Gonzalez arrested
Stephens when handcuffing Stephens and reading Stephens the Miranda warnings or later
when announcing the arrest. If we rule that Gonzalez only arrested Stephens after the
confession and upon announcing the arrest, then we would decide that the handcuffing
6 No. 36542-5-III State v. Stephens
constituted an investigatory stop, for which Gonzalez needed only a reasonable
articulable suspicion that Stephens had engaged in criminal activity. State v. Acrey,
148 Wn.2d 738, 747, 64 P.3d 594 (2003). If we conclude that Officer Gonzalez arrested
Stephens when handcuffing him, we would rule that Gonzalez needed probable cause
before restraining and questioning him. State v. Flores, 186 Wn.2d 506, 520, 379 P.3d
104 (2016). The latter rule presents a higher standard for the State to fulfill.
We encounter limited difficulty in discerning the law of arrest because of loose
terminology used in court opinions. The law uses many and often overlapping terms for
various interactions between a law enforcement officer and a suspect or for that matter
any citizen regardless of suspect designation. The words and expressions include “social
contact,” “stop,” “investigative stop,” “brief investigative stop,” “stop and frisk,” “Terry
stop,” “Terry investigative stop,” “detainment” “detention,” “limited detention,”
“involuntary detention,” “investigatory detention,” “brief, investigative detention,”
“seizure,” “present confinement,” “restraint,” “physical restraint,” “physical intrusion,”
“arrest,” “custody,” “custodial arrest,” “full custodial arrest,” and “formal arrest.” State v.
Mecham, 186 Wn.2d 128, 138, 380 P.3d 414 (2016); State v. Flores, 186 Wn.2d 506, 512
(2016); State v. Patton, 167 Wn.2d 379, 387, 219 P.3d 651 (2009); State v. Reichenbach,
153 Wn.2d 126, 135, 101 P.3d 80 (2004); State v. Lorenz, 152 Wn.2d 22, 36-37, 93 P.3d
7 No. 36542-5-III State v. Stephens
133 (2004); State v. Acrey, 148 Wn.2d at 746 (2003); State v. Kennedy, 107 Wn.2d 1, 4,
726 P.2d 445 (1986); State v. Rupe, 101 Wn.2d 664, 683-84, 683 P.2d 571 (1984); State
v. Marcum, 149 Wn. App. 894, 902-03, 910, 205 P.3d 969 (2009); State v. Salinas, 169
Wn. App. 210, 217, 279 P.3d 917 (2012); State v. Gering, 146 Wn. App. 564, 566-67,
192 P.3d 935 (2008); State v. Radka, 120 Wn. App. 43, 48-50, 83 P.3d 1038 (2004). For
purposes of our analysis, we label any contact between the officer and a citizen that
restrains the citizen’s movement or seeks to restrain the citizen’s movement a “seizure,”
since the Fourth Amendment to the United States Constitution employs the word. In turn,
we pigeonhole an officer’s seizure of a suspect such that the seizure requires probable
cause as an “arrest.” Finally, we categorize an officer’s temporary seizure of a suspect
such that the seizure demands only a reasonable articulable suspicion as an “investigatory
stop.” We explore below the parameters of the distinction between an investigatory stop
and an arrest, although one court impliedly suggested placing the plow before the mule by
focusing on whether we believe the officer should have had probable cause before
restraining and questioning the suspect and then deciding whether the suspect was under
arrest based on our desire as to whether the officer should have had probable cause. State
v. Williams, 102 Wn.2d 733, 739-40, 689 P.2d 1065 (1984).
8 No. 36542-5-III State v. Stephens
Based on both the federal and state constitutions, Washington recognizes, at least
in theory, almost an absolute bar to warrantless seizures. State v. Flores, 186 Wn.2d 506,
512 (2016). Officer Albert Gonzalez seized Kenneth Stephens without a warrant.
One exception to a warrant requirement is an investigative or Terry stop. State v.
Acrey, 148 Wn.2d 738, 746 (2003). A Terry stop amounts to a seizure, although it is less
intrusive than a custodial arrest. State v. Kennedy, 107 Wn.2d 1, 4 (1986). An
investigatory stop permits an officer to briefly detain and question an individual on less
than probable cause. State v. Acrey, 148 Wn.2d at 746-47. To initiate an investigatory
stop, the officer needs a well-founded suspicion based on objective facts that the
individual is connected to actual or potential criminal activity. Terry v. Ohio, 392 U.S. 1,
88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); State v. Sieler, 95 Wn.2d 43, 46, 621 P.2d 1272
(1980).
An arrest diverges from an investigatory stop. The classic definition of arrest
consists of “‘the apprehending or restraining of one’s person, in order to be forthcoming
to answer an alleged or suspected crime.’” State v. Rupe, 101 Wn.2d at 683-84 (1984)
(quoting EDWARD C. FISHER, LAWS OF ARREST 7 (1967) (quoting 4 WILLIAM
BLACKSTONE, COMMENTARIES *288). When judging whether an arrest occurred, the
court first asks whether the individual was free to leave the presence of the police. State
9 No. 36542-5-III State v. Stephens
v. Rupe, 101 Wn.2d 664, 684 (1984). The court then assesses the likelihood that the
present confinement will be accompanied by future interference with the individual’s
freedom of movement. Terry v. Ohio, 392 U.S. 1, 26 (1968); State v. Rupe, 101 Wn.2d at
684. The second step reflects the common law notion that an arrest constitutes more than
a present confinement. State v. Rupe, 101 Wn.2d at 684.
An arrest takes place when a duly authorized officer of the law manifests an intent
to take a person into custody and actually seizes or detains such person. State v. Ortega,
177 Wn.2d 116, 128, 297 P.3d 57 (2013); State v. Patton, 167 Wn.2d 379, 387 (2009).
The inquiry is whether a reasonable person under the circumstances would consider
himself or herself under arrest. State v. Ortega, 177 Wn.2d 116, 128 (2013); State v.
Reichenbach, 153 Wn.2d at 135(2004). The existence of an arrest depends in each case
on an objective evaluation of all the surrounding circumstances. State v. Patton, 167
Wn.2d 379, 387 (2009). Examples of conduct that would cause a reasonable person to
believe he or she was under arrest include handcuffing the suspect, placing the suspect in
a patrol vehicle for transport, and telling the suspect that he or she is under arrest. State v.
Ortega, 177 Wn.2d 116, 128 (2013); State v. Radka, 120 Wn. App. 43, 49-50 (2004).
The State argues that a suspect is not under arrest until the officer advises him he
is under an arrest. Although the law deems an officer’s announcement of an arrest to be
10 No. 36542-5-III State v. Stephens
one factor, the arresting officer need not orally communicate the intent to arrest for the
court to find an arrest. State v. Salinas, 169 Wn. App. 210, 218 (2012); State v. Turpin,
25 Wn. App. 493, 499, 607 P.2d 885 (1980), rev’d on other grounds, 94 Wn.2d 820, 620
P.2d 990 (1980); City of Seattle v. Sage, 11 Wn. App. 481, 485, 523 P.2d 942 (1974). A
person may be arrested even if the officer mistakenly believes otherwise. State v. Turpin,
25 Wn. App. 493, 499 (1980). If we adjudged an arrest to transpire only after a
proclamation by the law enforcement officer, law enforcement could manipulate and deny
Fourth Amendment rights by delaying or omitting an announcement of arrest.
The State emphasizes that Officer Albert Gonzalez did not intend to arrest
Kenneth Stephens until after Stephens confessed. In turn, the State argues that the
officer’s intent controls whether or not the court should categorize the seizure as an arrest
or as an investigatory stop. In so arguing, the State contravenes the reasoning of State v.
Radka, 120 Wn. App. 43, 49 (2004).
According to State v. Radka, 120 Wn. App. 43, 49 (2004), the determination of
custody hinges on the “‘manifestation’ of the arresting officer’s intent.” Although this
quote refers to the officer’s intent, the quote does not end there. The manifestation of the
intent, not the subjective intent controls. Furthermore, this court, in State v. Radka, noted
that Washington courts moved away from relying on the officer’s subjective intent.
11 No. 36542-5-III State v. Stephens
As already written, case law, and even State v. Radka, emphasizes the test of when
an arrest transpired focuses on what the reasonable suspect would believe. The law
employs an objective test to determine whether a person is in a custodial arrest. State v.
Reichenbach, 153 Wn.2d 126, 135, 101 P.3d 80 (2004). A suspect is in custody if a
reasonable person in the suspect’s circumstances would believe his movements were
restricted to a degree associated with formal or custodial arrest. Berkemer v. McCarty,
468 U.S. 420, 440, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984); State v. Reichenbach, 153
Wn.2d 126, 135 (2004); State v. Lorenz, 152 Wn.2d 22, 36-37 (2004); State v. Gering,
146 Wn. App. 564, 567 (2008). The test is whether a reasonable detainee under these
circumstances would consider himself or herself under full custodial arrest. State v.
Gering, 146 Wn. App. at 567 (2008); State v. Radka, 120 Wn. App. at 49.
Kenneth Stephens underscores his being handcuffed. In response, the State argues
that handcuffing alone does not necessarily lead to a conclusion that a suspect is under
arrest. We agree. A law enforcement officer may handcuff a suspect during an
investigatory stop, but generally the officer must articulate a reason for deeming the
suspect dangerous or a risk of flight. State v. Williams, 102 Wn.2d 733, 740-41 (1984);
State v. Cunningham, 116 Wn. App. 219, 229, 65 P.3d 325 (2003); State v. Gering, 146
Wn. App. 564, 567 (2008). Officer Albert Gonzalez never testified that he considered
12 No. 36542-5-III State v. Stephens
Kenneth Stephens threatening, let alone identified a reason for considering Stephens
dangerous. Officer Gonzalez never testified he was worried about Stephens escaping.
In some Washington decisions, handcuffing was part of the arrest. State v.
Williams, 102 Wn.2d 733, 740, 689 P.2d 1065 (1984); State v. Salinas, 169 Wn. App. at
218-19 (2012); State v. Gering, 146 Wn. App. 564 (2008). Accordingly, handcuffing a
suspect signifies an arrest. State v. Rowland, 172 Ariz. 182 836 P.2d 395, 397 (Ct. App.
1992). Handcuffing is a hallmark of a formal arrest. Broom v. United States, 118 A.3d
207, 213 (D.C. 2015). Handcuffing communicates to the suspect that he is under arrest.
State v. Turpin, 25 Wn. App. at 499 (1980).
In State v. Gering, 146 Wn. App. 564 (2008), the law enforcement officer asked
Robert Gering to step outside of a business. When Gering complied, the officer
handcuffed him. This court determined the officer to have then arrested Gering. The
facts did not show whether the officer ever informed Gering, when handcuffing him, that
he was under arrest. But conversely, the facts did not indicate that the officer ever told
Gering he was free to leave.
Kenneth Stephens also astutely highlights the delivery of the Miranda warnings.
Generally, the officer gives Miranda warnings only after the arrest. See State v. Marcum,
149 Wn. App. 894 (2009); State v. Turpin, 25 Wn. App. 493 495, (1980). The law does
13 No. 36542-5-III State v. Stephens
not require an officer to give the Miranda warnings until after the arrest. State v.
Marcum, 149 Wn. App. 894, 911 (2009). Giving a defendant Miranda warnings weighs
in favor of concluding that an arrest occurred because most people associate the warnings
with arrest. State v. Snyder, 240 Ariz. 551, 555, 382 P.3d 109, 113 (Ct. App. 2016);
People v. Ollie, 333 Ill. App. 3d 971, 777 N.E.2d 529, 539, 267 Ill. Dec. 726 (2002).
We create no per se rule that a suspect is under arrest if read Miranda rights or
under arrest if handcuffed. Nevertheless, based on the totality of the circumstances, we
conclude that Officer Albert Gonzalez arrested Kenneth Stephens when handcuffing him.
Before the cuffing of Stephens, Gonzalez instructed Stephens he was not fee to leave.
Immediately before or after shackling Stephens, Gonzalez read the Miranda rights. The
handcuffing and warnings directly led to the questioning of Stephens, the search of
Stephens’ person, and the incarceration of Stephens.
The State argues that some intermediate level of contact between a law
enforcement officer and a suspect fits between an investigatory stop and an arrest. The
State labels this halfway ground as “custody.” Nevertheless, the State presents no Fourth
Amendment law supporting a legal land of limbo.
The State argues that Officer Albert Gonzalez merely acted prudently when issuing
the Miranda warnings and putting Kenneth Stephens in handcuffs. This argument directs
14 No. 36542-5-III State v. Stephens
us again to address the subjective intent of the officer. To repeat, we adjudge whether the
officer arrested an individual based on whether a reasonable person would deem himself
or herself under arrest.
Kenneth Stephens assigns error to those portions of findings of fact 2.5 and 2.6
that state that he was first “detained” and then later “arrested” only after making
inculpatory statements. We consider the findings, to the extent they label the conduct of
Officer Albert Gonzalez, to be legal conclusions because the findings do not simply
describe the underlying facts. We review conclusions of law de novo. State v. Garvin,
166 Wn.2d 242, 249, 207 P.3d 1266 (2009). Appellate courts review a trial court’s
custodial determination de novo. State v. Lorenz, 152 Wn.2d at 36 (2004); State v.
Gering, 146 Wn. App. 564, 567 (2008).
A warrantless seizure is presumed unreasonable under the Fourth Amendment.
State v. Acrey, 148 Wn.2d 738, 746 (2003). Since Officer Albert Gonzalez arrested
Kenneth Stephens, rather than performing an investigatory stop, the State must show that
Gonzalez possessed probable cause that Stephens committed a crime. State v. Grande,
164 Wn.2d 135, 141, 187 P.3d 248 (2008). The State bears the burden of establishing
probable cause. State v. Thompson, 151 Wn.2d 793, 803, 92 P.3d 228 (2004).
15 No. 36542-5-III State v. Stephens
The State argues that Officer Albert Gonzalez possessed probable cause to arrest
Kenneth Stephens for theft, but we are uncertain as to whether the State bases this
argument on the assumption that Gonzalez did not arrest Stephens until after the
confession of taking cameras. Otherwise, the State focuses on thwarting Stephens’s
contention that Officer Gonzalez arrested Stephens before his confession. At any rate,
despite Stephens’s extensive analysis of whether probable cause existed, the State
provided no evaluation as to whether Gonzalez possessed probable cause to arrest
Stephens at the time that Gonzalez read him his Miranda rights. This court does not
review issues not argued, briefed, or supported with citation to authority. RAP
10.3(a)(6); Valente v. Bailey, 74 Wn.2d 857, 858, 447 P.2d 589 (1968); Avellaneda v.
State, 167 Wn. App. 474, 485 n.5, 273 P.3d 477 (2012). Because the State does not meet
its burden of showing probable cause for the arrest of Kenneth Stephens, we suppress the
evidence of the methamphetamine seized as a result of the search incident to arrest.
In addition to requesting that we suppress the evidence of the methamphetamine,
Kenneth Stephens ask that we suppress his confession to stealing the cameras. Because
the jury acquitted Stephens of trafficking in stolen property, we need not address this
request.
16 No. 36542-5-III State v. Stephens
CONCLUSION
We hold that the trial court erred when denying Kenneth Stephens’ application to
suppress evidence of methamphetamine found on his person. We reverse the conviction
for and dismiss the charge of possession of a controlled substance.
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.
_________________________________ Fearing, J.
WE CONCUR:
______________________________ Siddoway, J.
______________________________ Pennell, C.J.