State Of Washington, Respondent V. Benjamin Chad Stum, Appellant

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, )
) No. 70564-4-I
Respondent, )

) DIVISION ONE
V.

)

) UNPUBLISHED OPINION

BENJAMIN CHAD STUM, )

)

Appellant. ) FILED: August 4, 2014
)

TRICKEY, J. — Police questioning during a routine investigatory detention
does not rise to the level of custodial interrogation. Because Benjamin Stum’s
statements to police occurred during a valid Terry stop, no Miranda warnings
were required, and the trial court properly denied his motion to suppress. Nor
has Stum demonstrated any prejudice resulting from the delayed entry of findings
of fact and conclusions of law following the CrR 3.5 hearing. We therefore affirm
his convictions for second degree burglary and first degree reckless burning.

FACTS

The relevant facts are essentially undisputed. On April 3, 2013, Everett

Police Detective Michael Atwood responded to a reported explosion at an

unoccupied residence on 41st Street.’ The explosion blew out the windows, sent

1 Report of Proceedings (RP) (CrR 3.5 Hearing, June 14, 2013) at 7; 1 RP (June 17 &
18, 2013) at 90-91.

No. 70564-4-1 / 2
the front door across the street, damaged the walls, and caused a fire in the
basement.2
Upon arriving, Atwood, an arson investigator and bomb technician, noticed
extensive damage to the house from some type of explosion.3 	After inspecting
the house, Atwood interviewed several neighbors, who described a man they
saw leaving the house at about the time of the explosion.4 	Atwood drove around
the neighborhood, but could not find the man. 	He then returned to the house and
resumed his investigation.5
While 	Atwood 	spoke 	with 	one of the 	neighbors, 	he 	noticed 	a 	man
approaching on foot.6 	The man, later identified as Benjamin Stum, was carrying
a sheathed 	hunting 	knife in one hand and an open 	beer can in the other.7
Atwood walked 	over to Stum, who matched the description of the man that
neighbors saw leaving the house around the time of the explosion.8 	Stum's beer
can 	was 	identical 	to 	several 	empty cans that Atwood 	had 	seen inside the
damaged house.9
2The city of Everett eventually demolished the house. 	1 RP at 93-116.
3 RP at 7.
4 RP at 8.
5 RP at 8.
6 RP at 8-9.
7 RP at 9.
8 RP at 9.
9RPat13.

No. 70564-4-1 / 3
Atwood, who was not in uniform, identified himself and asked Stum to put
down the beer can and 	hand over the knife.10 	Stum complied, and Atwood
placed the knife on the front seat of his nearby police van.11 	Atwood told Stum
that he was investigating a suspicious fire in the house.12 	He checked Stum's
identification card briefly and then returned the card.13
Atwood informed Stum that it was illegal to carry an open beer can in
public and that his beer can matched several empty cans in the house.14 	At
some point during the conversation, Atwood told Stum that it was "time to be
honest."15 	Stum eventually became emotional and indicated that he had been
sleeping in the house for some time and that the explosion was an accident.16
Because of the amount of damage in the house, Atwood was skeptical
about Stum's assertion and asked him to clarify it.17 	When Stum confirmed that
he was 	in 	the 	house 	at the time 	of the explosion, 	Atwood 	stopped 	the
conversation and advised Stum of his Miranda rights.18 	See Miranda v. Arizona,
384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 	The conversation had
lasted about five minutes.19
10 RP at 9.
11 RPat9.
12 RP at 14.
13 RP at 14.
14 RP at 13.
15 RP at 16.
16 RP at 17-18.
17 RP at 18.
18 RP at 19.
19 RP at 16.

No. 70564-4-1 / 4
Stum indicated that he understood his rights and continued to talk with
Atwood.20 	He also provided a written statement.21 	Stum explained that he had
been 	living 	in 	the vacant house for 	several months.22 	On the day of the
explosion, Stum was cutting and removing copper pipe downstairs in the house
to sell. 	At some point, he began to smell gas.23 	Stum indicated that he had
caused the explosion when he used a lighter to test the quantity of gas or when
he took a break and lit a cigarette.24
The State charged Stum with one count of second degree burglary and
one count of first degree reckless burning.25 	Prior to trial, the defendant moved
to suppress his statements to Detective Atwood, arguing that they were made
during 	custodial 	interrogation 	without 	the 	benefit 	of 	Miranda 	warnings.26
Following a CrR 3.5 hearing, the trial court denied the motion, concluding that
because the encounterwas brief, non-coercive, and involved a valid investigatory
detention, Stum was not in custody for purposes of Miranda.27
20 RP at 10-11.
21 RP at 11.
221 RPat 123.
231 RPat 122.
241 RPat 122-23.
25 Clerk's Papers (CP) at 81.
26 RP at 26-29.
27 RP at 30-31.

No. 70564-4-1 / 5
The jury found Stum guilty as charged,28 and the court sentenced him
under a first-time offender waiver to 90 days of incarceration and one year of
community custody.29
ANALYSIS
Stum contends that the trial court erred in concluding that he was not in
custody during 	Detective Atwood's initial questioning and that his statements
were therefore admissible without the benefit of Miranda warnings. 	He argues
that the circumstances of the encounter, including Atwood's explanation of the
illegality 	of the 	open 	beer container, 	the 	confiscation 	of his 	knife, 	and 	the
detective's suggestions that he might be involved in the explosion, exceeded the
scope 	of 	a 	valid 	investigatory 	detention 	and 	were 	sufficiently 	coercive 	to
constitute custodial interrogation for Miranda.
We 	review the 	trial 	court's 	decision 	following 	a 	CrR 3.5 	hearing to
determine whether substantial evidence supports the findings of fact and whether
those findings, in turn, support the conclusions of law. 	State v. Broadawav, 133
Wn.2d 118, 130-31, 942 P.2d 363 (1997). 	Unchallenged findings of fact are
verities on appeal. 	State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994). 	The
trial 	court's 	determination 	as 	to whether 	questioning 	constituted 	custodial
interrogation is a conclusion of law that we review de novo. 	State v. Lorenz, 152
Wn.2d 22, 36, 93 P.3d 133 (2004).
28 CP at 34-35.
29 CP at 18-27.

No. 70564-4-1 / 6
Miranda 	warnings 	are 	required 	prior 	to 	the 	initiation 	of 	"custodial
interrogation." 	State v. Heritage, 152 Wn.2d 210, 217, 95 P.3d 345 (2004). 	The
test for determining whether a defendant is in custody for purposes of Miranda is
an objective one: "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." 	Lorenz, 152 Wn.2d at 37 (citing Berkemer v. McCartv, 468 U.S. 420,
440, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984)).
Consistent with the 	Fourth Amendment and article I, 	section 7 of the
Washington 	Constitution, 	a 	police 	officer 	may 	conduct 	a 	brief investigatory
detention if the 	officer 	has 	a 	reasonable 	and 	articulable 	suspicion that an
individual is involved in criminal activity. 	State v. Sieler, 95 Wn.2d 43, 46, 621
P.2d 1272 (1980); see also Terrv v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L
Ed. 2d 889 (1968). 	During the course of a Terrv stop, the officer may ask a
moderate number of questions "to confirm or dispel the officer's suspicions."
Heritage, 152 Wn.2d at 218. 	Because Terrv stops generally are brief and occur
in 	public, 	"they 	are 	substantially 	less 	police 	dominated 	than 	the 	police
interrogations contemplated by Miranda." 	Heritage, 152 Wn.2d at 218 (internal
quotation marks omitted) (quoting Berkemer, 468 U.S. at 439). 	Consequently, a
routine investigatory detention is not custodial for purposes of Miranda. 	Heritage,
152Wn.2dat218.
Here, 	when 	Detective Atwood 	approached 	Stum, 	he knew that Stum
matched the description of a man seen leaving the house at the time of the
6

No. 70564-4-1 / 7
explosion and that Stum was carrying a beer can identical to those that he had
seen 	inside the 	house. 	Under the circumstances, Atwood had 	specific and
articulable facts justifying a brief investigatory detention to determine whether
Stum might have been involved with the explosion.
Atwood did not tell Stum he could not leave, place him in handcuffs, or
otherwise restrain him or restrict his movements. 	The questioning occurred in
public and involved only Atwood and Stum. 	Although Atwood removed Stum's
hunting knife before talking to him, an officer may temporarily secure a suspect's
weapon without exceeding the permissible scope of an investigatory detention.
See State v. Day, 	161 Wn.2d 889, 895, 	168 P.3d 1265 (2007). 	Finally, the
questioning was brief, lasting no longer than five minutes. 	Once Stum clarified
that he was in the house at the time of the explosion, Atwood stopped the
questioning 	and 	advised 	Stum 	of 	his 	Miranda 	rights. 	Contrary 	to 	Stum's
assertions, the questioning did not exceed the valid scope of a Terry stop. 	Under
the 	circumstances, 	a 	reasonable 	person 	would 	not 	have 	believed 	that 	his
freedom was curtailed to a degree analogous to a formal arrest. 	The trial court
correctly concluded that the encounter did not constitute a custodial interrogation
requiring Miranda warnings
Stum's arguments rest primarily on the claim that a reasonable person in
his position would not have felt free to leave. 	But when a police officer questions
a suspect during a valid investigatory detention, the fact that the suspect is not
necessarily 	free 	to 	leave 	does 	not 	elevate 	the 	encounter 	into 	a custodial
7

No. 70564-4-1 / 8
interrogation. 	See Berkemer. 468 U.S. at 439-40 (Fourth Amendment seizure of
suspect for routine Terrv stop or comparable traffic stop does not rise to the level
of "custody" for purposes of Miranda): 	Heritage, 	152 Wn.2d at 218; State v.
Walton, 67 Wn. App. 127, 130, 834 P.2d 624 (1992).
In his opening brief, Stum assigned error to the trial court's failure to enter
written findings of fact and conclusions of law following its denial of his motion to
suppress.30 	See 	CrR 	3.5. 	The 	trial 	court 	promptly 	entered 	findings 	and
conclusions after the State learned of the error.
We will 	not 	reverse 	a 	conviction 	for 	the 	late 	entry 	of findings 	and
conclusions 	unless 	the 	delay 	prejudiced 	the 	defendant 	or the findings 	and
conclusions 	were 	tailored 	to 	address 	the 	issues 	raised 	in 	the 	defendant's
appellate brief. 	State v. Cannon, 130 Wn.2d 313, 329-30, 922 P.2d 1293 (1996).
In his reply brief, Stum has assigned error to two minor findings related to
the open beer container that he was carrying. 	Those findings are immaterial to
our analysis of the custody issue. 	The relevant written findings and conclusions
accurately 	reflect 	the 	evidence 	presented 	to 	the 	trial 	court, 	the 	parties'
arguments, 	and 	the 	trial 	court's 	oral 	decision. 	Stum 	has 	not 	alleged 	or
demonstrated that the written findings and conclusions are inadequate to permit
appellate review or that the delayed entry was in any way prejudicial. 	Reversal is
therefore not warranted. 	See State v. Brockob, 159 Wn.2d 311, 344, 150 P.3d
59 (2006); Cannon, 130 Wn.2d at 330.
30 Br. of Appellant at 1, 17.
8

No. 70564-4-1 / 9
Affirmed.
Trickey, J
WE CONCUR:
Specimen CJ
Capilarat A
9