State Of Washington, Resp. vs. Jose Hernandez-garcia, App.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
JOSE HERNANDEZ-GARCIA,
AKA JESUS HERNANDEZ-GARCIA,
Appellant.
No. 68106-1-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: April 29, 2013
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Grosse, J. 	— An 	individual 	is "in custody" for the 	purposes of Miranda v.
Arizona,1 when a reasonable person would have felt that he or she was not free to end
the 	interrogation 	and 	leave. 	Here, 	Jose 	Hernandez-Garcia 	agreed 	to 	speak with
detectives, who told him that he was not under arrest. 	Shortly into the conversation, he
volunteered incriminating information. 	Under these circumstances, the interrogation
was noncustodial. We affirm.
FACTS
On the 	morning of December 2, 2010, 	Seattle Police 	Detective Leslie Smith
arrived at Ross Display to contact employee Hernandez-Garcia regarding allegations of
child sexual abuse made against a man known as "Muchacho." 	Smith suspected that
Hernandez-Garcia 	was 	"Muchacho," 	and 	she 	hoped 	to 	verify 	Hernandez-Garcia's
identity and to talk with him if he was willing.
After speaking with Hernandez-Garcia for a short while, Smith realized that she
needed the assistance of an 	interpreter due to Hernandez-Garcia's limited ability to
speak English. 	Smith gave 	Hernandez-Garcia 	her card, 	which indicated that she
1 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

No. 68106-1-1/2
worked for the Seattle Police Department's sexual assault unit. 	Hernandez-Garcia
agreed to speak with her the following week.2
On December 9, Smith returned to Ross Display with Detective Susana Ditusa
and a Spanish-language interpreter. 	The detectives were armed but dressed in plain
clothes and were driving an unmarked car. 	Once inside, Smith told a supervisor that
they wanted to meet with Hernandez-Garcia privately, and he showed them to a 12-foot
by 13-foot employee break room in the back of the building. 	The supervisor retrieved
Hernandez-Garcia, who agreed to a recorded conversation with the detectives.
Smith closed the door to the room and questioned Hernandez-Garcia for a little
over an 	hour. 	First, 	Smith verified that Hernandez-Garcia was also known 	by the
nickname "Muchacho." 	She 	informed 	him that the complainant, 	E.P., 	had 	alerted
employees at her school as to "what had gone on between you and her a couple of
years ago."3 	After telling him, "[i]t's pretty serious why we're here," she stated, "we're
not here to take you to jail. ... But I am here to try to find out the truth of what
happened between you and [E.P.]." 	Hernandez-Garcia replied, "Oh okay. 	Like—." The
following exchange then occurred:
DETECTIVE: Like okay. 	What [E.P.] admitted to, and kept—she
kept hidden for a long time.
HERNANDEZ-GARCIA: Uh, huh.
DETECTIVE: But as she got older, now that she's in second grade,
she's been able to actually verbalize to tell people what had happened.
She admitted to something that went on between the two of you that's
pretty intimate. 	Do you understand when I say intimate what I mean by
that?
HERNANDEZ-GARCIA: Yes, but it surprises me.
2 According to Smith, she and Hernandez-Garcia understood each other well enough to
make these arrangements.
3 E.P. was the daughter of a friend of Hernandez-Garcia, who cooked meals out of her
home.

No. 68106-1-1/3
DETECTIVE:Okay. 	Urn, let me just tell you what she said. 	That
you didn't just watch movies when you were sitting on the couch.
HERNANDEZ-GARCIA: Uh, huh.
DETECTIVE: And that you did private things with her.
HERNANDEZ-GARCIA: No, but like what?
DETECTIVE: Like private things that you touched her privates, and
that you had her touch yours.
HERNANDEZ-GARCIA: 	I'll 	have 	to 	start from 	the 	beginning 	to
explain this.
DETECTIVE: Okay. 	Please do.
Hernandez-Garcia told 	Smith that E.P., who was four years old at the time of the
events, 	had 	a 	habit of grabbing 	his 	penis 	over 	his 	clothes, 	and 	that 	he tried 	to
discourage this behavior. 	He said he never touched E.P. 	in return. 	He also denied
E.P.'s accusations that he 	had 	shown her pornographic movies on a 	portable DVD
(digital versatile disc) player.
For 	most 	of 	the 	interview, 	Hernandez-Garcia 	continued 	to 	deny 	E.P.'s
accusations that he inappropriately touched her. 	Smith eventually told him, "little girls
don't make things like that up." 	She said, "We're not here because we think you're
some sort of monster and you're out there preying on little girls." 	Rather, "I think you
just made a mistake. . . . [W]e're just here talkin' to you right now because we're tryin' to
find out the truth." Hernandez-Garcia eventually admitted to the conduct. 	At the end of
the interview, Smith arrested him and informed him of his rights.
The State charged 	Hernandez-Garcia with first degree 	rape of a child, first
degree child molestation, and communication with a minor for immoral purposes.
Hernandez-Garcia sought to exclude the statements he made to Smith during the
Ross Display interview, claiming that Smith should have provided him with Miranda
warnings. 	The court held a CrR 3.5 hearing to determine the admissibility of the
statements. 	After considering testimony from Smith, Ditusa, and the interpreter, the

No. 68106-1-1/4
court ruled that the statements were admissible. After a trial, during which the recording
of the interview was played for the jury, Hernandez-Garcia was convicted on all counts.
He appeals.
ANALYSIS
Hernandez-Garcia 	contends 	the 	trial 	court 	should 	have 	suppressed 	his
statements, claiming they were made during a 	custodial interrogation that required
Miranda warnings. 	Under Miranda, 	evidence obtained 	as 	a 	result of 	a 	custodial
interrogation 	may not 	be used against a 	defendant unless the defendant was first
warned 	of his or her rights.4 	Here, 	it 	is undisputed that Hernandez-Garcia was
interrogated.5 	Thus, if Hernandez-Garcia was in custody at the time the interrogation
occurred, his statements should have been suppressed. 	"We review a trial court's
custodial determination de novo."6
"'Custody' for the purposes of Miranda is narrowly circumscribed and requires
formal arrest or restraint on freedom of movement to a degree associated with formal
arrest."7 This court employs an objective standard: "whether a reasonable person in the
individual's 	position 	would 	believe 	he 	or 	she 	was 	in police 	custody to 	a 	degree
associated with formal arrest."8 A defendant must point to "objective facts indicating his
or her freedom of movement was restricted."9 	To determine whether an interrogation
was 	custodial, 	a 	court 	must 	examine 	all 	the 	circumstances 	surrounding 	the
4State v. Baruso. 72 Wn. App. 603, 609, 865 P.2d 512 (1993).
5 "Interrogation" occurs when the 	interviewing 	officer should have known 	that the
questioning would provoke an incriminating response. 	State v. Post, 118 Wn.2d 596,
606, 826 P.2d 172 (1992).
6 State v. Lorenz. 152 Wn.2d 22, 36, 93 P.3d 133 (2004).
7State v. Ferguson. 76 Wn. App. 560, 566, 886 P.2d 1164 (1995).
8 Lorenz, 152 Wn.2d at 36-37.
9 Post, 118Wn.2dat607.

No. 68106-1-1/5
interrogation.10 	"Relevant factors include the location of the questioning, its duration,
statements made during the interview, the presence or absence of physical restraints
during 	the 	questioning, 	and 	the 	release 	of 	the 	interviewee 	at 	the 	end 	of 	the
questioning."11
Hernandez-Garcia argues that the interrogation was custodial because he was
isolated from others, did not initiate contact with the officers, was outnumbered by law
enforcement personnel, and was not explicitly informed that he could end the interview
and leave. 	Although he was not bound or otherwise physically restrained, he contends
that closing the door to the interview room was a kind of psychological restraint. 	He
claims that the officer's repeated accusations led to a coercive environment in which he
felt pressured to make incriminating statements. We disagree.
Several other considerations lead us to the conclusion that the interrogation was
noncustodial. 	Hernandez-Garcia 	voluntarily 	agreed 	to 	speak 	with 	Smith 	on 	two
separate occasions with the understanding that questioning would result. 	Also, Smith
told Hernandez-Garcia at the beginning of the interview that she was not there to arrest
him. 	While Smith did not explicitly tell Hernandez-Garcia that he was free to go, that
fact is fairly implied based on these circumstances—particularly Hernandez-Garcia's
agreement to talk and Smith's statement that she was "not [tjhere to take [him] to jail."
The interview was held in a familiar setting—the employee break room. 	The room had
two exits, and there is no evidence that either one was blocked. 	Also, Hernandez-
10 Stansburv v. California. 511 U.S. 318, 322, 114 S. Ct. 1526, 128 L Ed. 2d 293 (1994)
(quoting California v. Beheler. 463 U.S. 1121, 1125, 103 S. Ct. 3517, 77 L. Ed. 2d 1275
(1983)).
Howes v. Fields. 132 S. Ct. 1181, 1189, 182 L. Ed. 2d 17 (2012) (citations omitted).

No. 68106-1-1/6
Garcia never attempted to leave or end the interview. 	Rather, he volunteered to explain
the situation to the detectives shortly after the interview began.
The cases Hernandez-Garcia relies upon— State v. Dennis.12 United States v.
Kim.13 and United States v. Carter14—are distinguishable.
In Dennis. Division Two of this court held that the defendants were in custody
when a police officer interrogated them in their own home, even though they were not
placed under arrest and the officer told them they were free to leave at any time.15
There, 	the atmosphere was "dominated by the officer's 	unwelcome presence," the
officer insisted on 	remaining 	in a 	position where he 	could 	monitor and 	restrict the
defendants' freedom 	of movement within their home, 	and 	the officer informed the
defendants that a search warrant had been obtained and was en route to the apartment
in order to be served.16
In Kim, the defendant and her husband drove to the store they owned to check
on their son after a police officer showed up at their house looking for him.17 When they
arrived, 	the police were executing a search warrant and the door to the store was
locked.18 	Kim knocked, and an officer let her enter but locked out her husband.19 	Kim
was not allowed to leave for three 	hours.20 	Once she entered the store, 	officers
prevented her from speaking with her son and ordered her to speak English, not her
12 16 Wn. App. 417, 558 P.2d 297 (1976).
13 292 F.3d 969 (9th Cir. 2002).
14 884 F.2d 368 (8th Cir. 1989).
15 Dennis. 16 Wn. App. at 421-22.
16 Dennis, 16 Wn. App. at 421-22.
17 Kim, 292 F.3d at 971.
18 Kim. 292 F.3d at 971.
19 Kim, 292F.3dat971.
20 Kim, 292 F.3d at 971.

No. 68106-1-1/7
native Korean.21 	Kim was directed to sit while the officers searched the store for "some
time."22 	After that, they interrogated 	her for 30 minutes without an interpreter and
another 20 minutes after the interpreter arrived.23 	Kim said that the officers positioned
themselves so that she felt "surrounded."24 	During the questioning, Kim admitted to
selling 	large 	quantities 	of pseudoephedrine.25 	The 	court 	held 	that under 	these
circumstances, Kim was sufficiently restrained so as to be considered in custody.
In Carter, the Eighth Circuit held that the defendant was in custody where postal
inspectors and a bank security officer surrounded 	him during the 	interrogation, the
inspectors did not tell him 	he was free to leave or did not have to answer their
questions, and the inspectors adopted a "Mutt and Jeff' approach during the hour-long
interview, confronting him with damning evidence of his guilt.26
In each of these cases, there is an element of police dominance and restraint
that is absent here. 	The detectives did not surround Hernandez-Garcia or otherwise
restrict his freedom of movement, engage in deceptive interrogation tactics, or threaten
him 	with 	the 	existence 	of 	a 	search 	warrant. 	Unlike 	Kim, 	Smith 	did 	not 	prevent
Hernandez-Garcia from speaking in his native language; she waited until an interpreter
was present to question him. 	These circumstances distinguish this case from those
Hernandez-Garcia relies upon.
21 Kim, 292 F.3d at 971. Another officer told her to "shut up."
22 Kim. 292 F.3d at 971-72, 977.
23 Kim, 292 F.3d at 977.
24 Kim. 292 F.3d at 972.
25 Kim, 292 F.3d at 972.
26 Carter, 884 F.2d at 372 (1989).

No. 68106-1-1/8
CONCLUSION
Smith told Hernandez-Garcia that she was not at his workplace to take him to jail
and asked him if he would agree to speak with her. 	Hernandez-Garcia voluntarily did
so. 	A reasonable 	person 	in Hernandez-Garcia's 	position would 	not 	have felt 	his
freedom of movement was restricted to a degree associated with formal arrest. 	We
affirm.
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WE CONCUR:
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