State v. Wheeler

737 P.2d 1005, 108 Wash. 2d 230, 1987 Wash. LEXIS 1068

• Court: Washington Supreme Court
• Decided: June 4, 1987
• Docket: 52679-6
• Status: Published

Opinions

Dolliver, J.

Defendant challenges a Court of Appeals decision affirming his conviction for second degree burglary. We affirm.

On October 7, 1981, during the afternoon, two residents of Cloverdale Street in Seattle called 911 to report suspicious circumstances. The first caller, Beatrice Snyder, reported seeing a man walk by twice as if he were "checking out" a nearby house. A short time later, the man returned with a second man in a green and white car. Snyder watched the two park the car, get out, and dart into a neighbor's yard. The second caller, Mary Grace Dahlen, reported at about the same time seeing a man run past her window. As he ran, the man tossed a pair of gloves into the yard and threw his jacket into a garbage can. He was wearing a bright blue shirt with white stripes.

Seattle police officers Donald R. Smith and Tim Louis Moellendorf received this information and a description of the two suspects over the police radio. They were advised there was a burglary in progress. When the officers arrived at the scene, a witness told them one of the suspects was a few blocks away on Rainier Avenue. The officers drove the indicated distance and saw a man, later identified as the defendant in this case, Keith Bryan Wheeler, wearing a bright blue shirt with white stripes. The man was sweating and out of breath, as if he had been running.

The officers asked Wheeler no questions except his name. They told him he was being held in custody on suspicion of burglary. The officers frisked him and found nothing. They handcuffed him and placed him in the patrol car. They then drove him the two blocks back to Cloverdale Street, where Dahlen identified him as the man she saw outside her window. The time from detention to identification was from 5 to 10 minutes. The officers learned upon return to the scene that a burglary had in fact taken place at the Aquino residence, next door to the Dahlen residence on Cloverdale. Wheeler was then arrested and informed of his rights.

Other officers who had remained on the scene arrested Tony Smith, driver of the green and white car, as he attempted to leave. The officers found various items stacked up by the door of the Aquino house as if to be picked up. Although the owner of the house indicated numerous items were missing, none of the items were found in Wheeler's possession.

The following day, Detective P. L. Hill approached Wheeler in jail and again advised him of his Miranda rights. Wheeler stated he understood his rights and refused to waive them. Hill then began to complete a Personal Investigation Report, telling Wheeler the information was necessary for arraignment. During the course of this questioning, Hill asked Wheeler if he knew Tony Smith. Wheeler denied knowing Smith. Hill knew the information was not necessary to fill out the report. After completing the report, Hill asked Wheeler whether he would make a statement and he refused.

Both Wheeler and Smith were charged with second degree burglary. The two cases were severed for trial. Wheeler's motions to suppress the eyewitness identification and the clothing he was wearing at the time of the arrest were denied.

During the first morning of the jury trial, Wheeler left the courtroom to go to the restroom and never returned. The trial continued in his absence. The trial court instructed the jury on the elements of second degree burglary and the lesser included offenses of attempted burglary and criminal trespass. Over defense counsel's objection, the court also cautioned the jury not to draw any adverse inferences from Wheeler's failure to testify. The jury returned a guilty verdict.

Sentencing occurred approximately 1 year later, when Wheeler was back in custody. The judge imposed a 10-year sentence. At the same time, the court also revoked Wheeler's suspended sentence and probation in two prior convictions because of the burglary conviction and because he had left the burglary trial.

The Court of Appeals affirmed in a 2-to-l decision. State v. Wheeler, 43 Wn. App. 191, 716 P.2d 902 (1986). Wheeler's petition for review was granted by this court. Three issues are presented for review: (1) whether the police exceeded the permissible scope of conduct during a Terry stop of defendant under either the Fourth Amendment or Const, art. 1, § 7; (2) whether the trial court erred by admitting a statement made by defendant in response to questioning on his Personal Investigation Report; and (3) whether the giving of a cautionary instruction, over the objection of defense counsel, that the jury was not to consider the fact that defendant failed to testify in reaching its verdict was in error.

I

Defendant concedes the police had sufficient grounds for an investigative detention, or Terry stop. See Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). Nevertheless, defendant contends the investigation methods used exceeded the scope of a Terry stop and therefore the evidence obtained after his detention was improperly admitted.

The State concedes there was no probable cause for arrest at the time of the initial detention, but argues no arrest was made until after the eyewitness identification. The State contends the police conduct prior to the formal arrest was all within the permissible scope of a Terry stop.

In State v. Williams, 102 Wn.2d 733, 689 P.2d 1065 (1984), we enunciated three factors to be considered in determining whether an intrusion on an individual is permissible under Terry or must be supported by probable cause: (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. State v. Williams, at 740. Further, the degree of intrusion must also be appropriate to the type of crime under investigation and to the probable dangerousness of the suspect. State v. Williams, at 740.

The purpose of a stop must be related to an investigation focused on the defendant. State v. Williams, at 740-41. At the time of the stop, the officers had been informed by police radio that a burglary was in progress and given an identification which matched that of defendant. Although the officers asked no other information of defendant, except his name, after the frisk (which revealed no weapon), he was immediately handcuffed, placed in the backseat of the patrol car, and transported a few blocks to the scene of the crime.

We agree with the Court of Appeals that the amount of physical intrusion in the present case was "significant". State v. Wheeler, supra at 197. We also concur with the Court of Appeals that the degree of intrusion was not excessive and was permissible under a Terry stop. There was no violation of either the Fourth Amendment or Const. art. 1, § 7.

First, as the Court of Appeals points out, the purpose of stopping Wheeler was to detain a person whose description specifically matched that of a witness to several suspicious activities. This is in marked contrast to Williams where no investigation had been focused on the person detained.

Second, we agree with the Court of Appeals that frisking and handcuffing defendant for the 2-block ride back to the scene of the burglary was not impermissibly intrusive. While in State v. Williams, supra at 740 n.2, the court stated that in the context of a Terry stop "[d]rawn guns and handcuffs, generally, are permissible only when the police have a legitimate fear of danger", the circumstances here were such as to justify handcuffing and placing defendant in the backseat of the patrol car. Such actions are standard, and we believe appropriate, procedures with the Seattle Police Department when a suspect is confined in a police car. Furthermore, the police car here had no screen separating the front and back seats. Given the legitimate concern for police safety when a suspect is being transported in a police car, the actions of the police were consistent with good police practice and common sense. State v. Walker, 24 Wn. App. 823, 828, 604 P.2d 514 (1979), review denied, 93 Wn.2d 1017 (1980).

Finally, courts disagree as to whether transporting a suspect away from the place the suspect is stopped necessarily transforms a Terry stop into an arrest. Many courts, including the Washington Court of Appeals, have concluded it is reasonable to transport a suspect a short distance in order for a witness to make an identification. State v. Gardner, 28 Wn. App. 721, 626 P.2d 56, review denied, 95 Wn.2d 1027 (1981) (suspect driven six blocks). Many of these cases, however, have involved some additional factor making transportation acceptable. See, e.g., State v. Bell, 395 So. 2d 805 (La. 1981); Wilkerson v. United States, 427 A.2d 923 (defendants consented to the transportation), cert. denied, 454 U.S. 852 (1981); People v. Lippert, 89 Ill. 2d 171, 432 N.E.2d 605 (probable cause already satisfied), cert. denied, 459 U.S. 841 (1982). Other courts have prohibited virtually any transportation without probable cause for arrest. People v. Cobbin, 692 P.2d 1069 (Colo. 1984); People v. Harris, 15 Cal. 3d 384, 391, 540 P.2d 632, 124 Cal. Rptr. 536 (1975), cert. denied, 425 U.S. 934 (1976).

Professor LaFave proposes a middle ground between forbidding any transportation during a Terry stop and allowing it freely:

More appealing is the conclusion that because transportation of the suspect even a short distance is more intrusive than a mere stop, it "should be dependent upon knowledge that a crime has been committed" and impermissible when the defendant's conduct was suspicious but "there has not been any report of a crime" recently in the vicinity.

(Footnotes omitted.) 3 W. LaFave, Search and Seizure § 9.2, at 26 (Supp. 1986).

We believe this is a reasonable and appropriate way to resolve the question of transportation during a Terry stop. The facts of this case meet the test: a crime had been reported; a suspect had been stopped; the transportation was for a short distance; the total detention was for but a brief time — no more than 5 to 10 minutes. Given the circumstances of the case, we do not think it was unreasonable for the officers to ask no more questions of defendant but his name, to inform him of the purpose of the stop, to handcuff him for their own security and safety, and to transport him to the site of the reported crime. The scope of the Terry stop was not exceeded; neither the Fourth Amendment nor Const, art. 1, § 7 was violated; there was no error.

II

Defendant contends the trial court erred by admitting the question by Detective Hill regarding his acquaintance with the codefendant Smith. Defendant argues the question violated his right to remain silent since he had already indicated his intent to refuse to make a statement. The State asserts the statement by defendant denying he knew Smith was made freely and voluntarily. At no time after receiving the Miranda warnings did defendant request an attorney, so the defendant's right to counsel is not disputed.

When an individual "indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease." Miranda v. Arizona, 384 U.S. 436, 473-74, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A.L.R.3d 974 (1966). The right to remain silent may be waived if the State proves by a preponderance of the evidence the waiver was knowing, voluntary, and an intelligent relinquishment of a known right. State v. Robtoy, 98 Wn.2d 30, 36, 653 P.2d 284 (1982). A waiver of a Miranda right need not be explicit but may be inferred from particular facts and circumstances. North Carolina v. Butler, 441 U.S. 369, 373, 60 L. Ed. 2d 286, 99 S. Ct. 1755 (1979). A waiver may be found when defendant freely and selectively responds to police questioning after initially asserting Miranda rights. State v. Coles, 28 Wn. App. 563, 567, 625 P.2d 713 (1981).

In determining the validity of a waiver of a previously asserted right to remain silent, the court may consider as relevant factors: (1) whether the right to cut off questioning was scrupulously honored; (2) whether the police engaged in further words or actions amounting to interrogation before obtaining a waiver; (3) whether the police engaged in tactics tending to coerce the suspect to change his mind; and (4) whether the subsequent waiver was knowing and voluntary. See State v. Robtoy, supra at 37 n.1.

Courts have recognized that the asking of routine questions during the booking process does not generally violate the prohibition against interrogation found in Miranda and Rhode Island v. Innis, 446 U.S. 291, 64 L. Ed. 2d 297, 100 S. Ct. 1682 (1980). United States v. Menichino, 497 F.2d 935, 941 (5th Cir. 1974); 1 W. LaFave & J. Israel, Criminal Procedure § 6.7, at 504 (1984). An exception for routine booking procedures arises because the questions asked rarely elicit an incriminating response. United States v. Booth, 669 F.2d 1231, 1237-38 (9th Cir. 1981); United States v. Mata-Abundiz, 717 F.2d 1277, 1280 (9th Cir. 1983).

The limited exception to Miranda allowing background, biographical questions necessary to complete booking does not encompass all questions asked during the booking process. United States v. Downing, 665 F.2d 404, 406 (1st Cir. 1981); United States v. Mata-Abundiz, supra; United States v. Hinckley, 672 F.2d 115 (D.C. Cir. 1982); see also United States v. Webb, 755 F.2d 382, 389 (5th Cir. 1985) (question asked "was not a question normally attendant to custody . . ."). As the court stated in United States v. Booth, supra at 1238:

[W]e recognize the potential for abuse by law enforcement officers who might, under the guise of seeking "objective" or "neutral" information, deliberately elicit an incriminating statement from a suspect.

In the present case, Wheeler was twice advised of his Miranda rights, acknowledged he understood them, and twice refused to give a statement. Detective Hill then proceeded to fill out a "Personal Investigation Report", and in the course of a series of descriptive and biographical questions asked the question contested here.

The questions contained in the Personal Investigation Report are the kind of routine questions generally permitted. The question asked as to whether defendant knew Tony Smith, however, was not a routine question in the booking process. Detective Hill conceded the question was not necessary to fill out the report. The implication to Wheeler, however, could well have been the opposite, since it was asked along with the other questions. Wheeler again indicated his continuing refusal to make a statement after Detective Hill completed the report questioning. We find the State has not sustained its burden to prove the defendant's right to silence was scrupulously honored, and he voluntarily waived a known right not to answer the question being contested. See State v. Robtoy, supra.

The issue remains, however, whether the error of the trial court here was harmless beyond a reasonable doubt. See State v. Jones, 101 Wn.2d 113, 125, 677 P.2d 131 (1984). In determining whether an error is harmless under the "overwhelming untainted evidence test" adopted in State v. Guloy, 104 Wn.2d 412, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986), the court must determine beyond a reasonable doubt the evidence not tainted by error is, by itself, so overwhelming that it necessarily leads to a finding of guilt. Guloy, at 426. We find under this test the admission of the evidence here was harmless. The overwhelming evidence from the stop itself, the evidence of the burglary, the matching shirt, and the eyewitness identification lead us to conclude the exclusion of this evidence would not have resulted in a different verdict. The trial court's error in admitting the statement was harmless.

Ill

Defendant contends the instruction to the jury not to draw any adverse inference from his failure to testify highlighted his absence from the trial. He argues the instruction should not be given unless requested by defense counsel.

The United States Supreme Court has ruled this instruction, even given over defense objection, does not violate the Fifth Amendment privilege against self-incrimination as a matter of federal law. Lakeside v. Oregon, 435 U.S. 333, 55 L. Ed. 2d 319, 98 S. Ct. 1091 (1978). As to the Washington constitutional provision against self-incrimination, article 1, section 9, we have construed it to be identical in scope to the Fifth Amendment. State v. Franco, 96 Wn.2d 816, 829, 639 P.2d 1320 (1982); State v. Foster, 91 Wn.2d 466, 473, 589 P.2d 789 (1979). Furthermore, this court has specifically held there is no prejudicial error to give this instruction either on the request of the State or the court's own motion. State v. Goldstein, 65 Wn.2d 901, 400 P.2d 368, cert. denied, 382 U.S. 895 (1965).

Affirmed.

Brachtenbach, Andersen, Callow, and Durham, JJ., concur.