# State v. Green

> Washington Supreme Court · August 28, 1980 · 94 Wash. 2d 216

URL: https://www.frixlaw.com/law-library/cases/9623469

## Case

- **Full name:** The State of Washington, Respondent, v. Michael Charles Green, Appellant
- **Court:** Washington Supreme Court
- **Decided:** August 28, 1980
- **Citations:** 94 Wash. 2d 216; 616 P.2d 628; 1980 Wash. LEXIS 1360
- **Precedential status:** Published
- **Opinion:** Concurrence by Utter
- **Judges:** Stafford, Utter, Dolliver, Rosellini
- **Cited by:** 1,288 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by Washington v. Recuenco, 548 U.S. 212 (2006).
- Negative treatments: 1
- Distinguished by: 3
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9623469

## How later opinions describe it (automated extraction)

- explaining the question is not whether reviewing court finds guilt beyond a reasonable doubt based on the evidence but whether any rational trier of fact could have
- reversing and remanding where the defendant was convicted of aggravated first degree murder under alternative theories of rape or kidnapping and there was insufficient evidence to support the kidnapping charge

## Opinion text

Utter, C.J.
(concurring) — I join in the majority's analysis and holdings concerning the insufficiency of the evidence of first degree kidnapping in this case, the failure of the trial court to instruct on the subject of a unanimous verdict, and the equal protection issue. Accordingly, I believe the conviction must be reversed and the cause remanded for a new trial.
I also concur with the majority's rejection of appellant's Miranda claim, but reach this result with a different analysis. Appellant contends that the police questioning which resulted in his written statement was a "custodial interrogation" and therefore subject to the requirements of Miranda v. Arizona, 384 U.S. 436 , 16 L. Ed. 2d 694 , 86 S. Ct. 1602 , 10 A.L.R.3d 974 (1966). The majority reaffirms *236 the Green I analysis of this claim, which concluded that the questioning was not a "custodial interrogation" because the police, at the time of the questioning, did not have probable cause to believe that Green had committed an offense. See State v. Green, 91 Wn.2d 431, 436-37 , 588 P.2d 1370 (1979) (Green I). I find it necessary to reach an issue which the Green I majority did not explicitly address: the applicability and effect of the additional test of "custodial interrogation" which applies to circumstances in which the police do not have probable cause at the time of the questioning.
In Miranda , the United States Supreme Court declared that the requirements established in the decision apply to every "custodial interrogation." 384 U.S. at 444, 478-79 . Thus, the threshold question in applying Miranda is whether the police questioning was an "interrogation" conducted in a "custodial" manner. See Rhode Island v. Innis, 446, U.S. 291, 297-302, 64 L. Ed. 2d 297, 305-08 , 100 S. Ct. 1682 (1980); Oregon v. Mathiason, 429 U.S. 492 , 50 L. Ed. 2d 714 , 97 S. Ct. 711 (1977). The express police questioning which took place in this case was an "interrogation", see Rhode Island v. Innis, supra at 301, and therefore the critical issue is whether the interrogation was "custodial" for purposes of Miranda .
The United States Supreme Court explained in Miranda that "[b]y custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." 384 U.S. at 444 . However, as we have observed in State v. Creach, 77 Wn.2d 194, 198-99 , 461 P.2d 329 (1969), " [i]t is difficult to set forth an all-inclusive rule" defining the circumstances in which an individual has been "deprived of his freedom of action in [a] significant way" and is therefore entitled to the Miranda protections. The definition of "custodial" must be broad enough to protect all individuals whose freedom has actually been restricted in a significant manner, see Oregon v. Mathiason, supra at 495, and yet narrow
*237 enough to allow the police to briefly restrict people's freedom of action in order to conduct the type of " [g]eneral on-the-scene questioning ... or other general questioning of citizens" that is part of "the traditional function of police officers in investigating crime." Miranda , at 477; see State v. Hilliard, 89 Wn.2d 430, 436, 573 P.2d 22 (1977). The rule for determining whether an individual has been significantly deprived of his freedom must, moreover, involve objective criteria and not rest upon the police officer's subjective intention to deprive the defendant of his freedom, or the defendant's subjective belief regarding whether he was free to go. "The [United States Supreme] Court could scarcely have intended the issue whether the person being interrogated had 'been taken into custody or otherwise deprived of his liberty in any significant way' to be decided by swearing contests in which officers would regularly maintain their lack of intention to assert power over a suspect save when the circumstances would make such a claim absurd, and defendants would assert with equal regularity that they considered themselves to be significantly deprived of their liberty the minute officers began to inquire of them." United States v. Hall, 421 F.2d 540, 544 (2d Cir. 1969).
We held in State v. Creach, supra, that one objective criterion that will definitively classify an interrogation as "custodial" is the police officer's possession, at the time of the questioning, of probable cause to believe that the interrogated individual has committed an offense:
[Office an investigating officer has probable cause to believe that the person confronted has committed an offense, the officer cannot be expected to permit the suspect to leave his presence. At that point, interrogation becomes custodial, and the suspect must be warned of his rights.
Creach , at 198; accord, State v. Hilliard, supra at 435-36. Since an officer possessing probable cause "cannot be expected to permit the suspect to leave his presence," the *238 probable cause factor provides objectively verifiable evidence that the interrogated individual in fact was not free to go. We simultaneously recognized in Creach , however, that other factors can demonstrate the deprivation of the defendant's freedom, and we specifically indicated that when the facts of the case are such that an interrogated individual would reasonably believe that he or she was not free to go, then the interrogation will be considered "custodial." See Creach, at 199; accord, State v. Dennis, 16 Wn. App. 417, 421-22 , 558 P.2d 297 (1976). Such an assessment of whether an interrogated individual would reasonably believe that he or she was free to go, is similarly employed in other jurisdictions as a central standard for determining whether an interrogation is "custodial" for purposes of Miranda. See, e.g., United States v. Curtis, 568 F.2d 643, 646 (9th Cir. 1978); Fisher v. Scafati, 439 F.2d 307, 310 (1st Cir.), cert. denied, 403 U.S. 939 , 29 L. Ed. 2d 719 , 91 S. Ct. 2256 (1971); People v. Arnold, 66 Cal. 2d 438, 449 , 426 P.2d 515 , 58 Cal. Rptr. 115 (1967); People v. Pugliese, 26 N.Y.2d 478 , 260 N.E.2d 499 , 311 N.Y.S.2d 851 (1970).
The focus upon a defendant's reasonable belief reflects the policy considerations underlying Miranda . The United States Supreme Court has explained that the "concern of the Court in Miranda was that the 'interrogation environment' created by the interplay of interrogation and custody would 'subjugate the individual to the will of his examiner' and thereby undermine the privilege against compulsory self-incrimination." Rhode Island v. Innis, supra at 299; see also United States v. Washington, 431 U.S. 181 , 187 n.5, 52 L. Ed. 2d 238 , 97 S. Ct. 1814 (1977); Oregon v. Mathiason, supra at 495 . By focusing upon whether the facts of the case are such that a defendant would reasonably believe that he or she was restrained of their freedom and not free to go, the definition of "custodial" interrogation effectuates the concern for the psychological impact Which custody and restraint can have upon an interrogated individual.
*239 In determining whether the interrogation in this case was "custodial," the Green I majority applied the probable cause test and concluded that the questioning was not a custodial interrogation under this test since the officers, at the time of the questioning, did not have probable cause to believe that appellant had committed the offense. Green I, supra at 436-37 . The Green I majority, however, failed to then go on and consider whether the facts in this case are such that an interrogated individual would reasonably believe that he was under restraint and was not free to go. Prior case law in this jurisdiction and other jurisdictions, and the policies underlying Miranda , make it necessary to also consider the applicability and effect of this second criterion for assessing the "custodial" nature of an interrogation.
The record reveals that the police officers' questioning of appellant Green was not conducted in circumstances that would lead an interrogated individual to reasonably believe that he or she was under restraint and was not free to go. Green claimed to be an eyewitness to the commission of the killing by another individual, and he went entirely voluntarily to the police station in accordance with the routine police procedure of taking material witnesses to the station to record their statements. Although the police thoroughly questioned Green as to his knowledge of the offense and his observation of the assailant, they did not in any way indicate that they were questioning him as a suspect rather than as the eyewitness which he purported to be.
Since the interrogation in this case was not "custodial" under either the probable cause test or the test of examining a defendant's reasonable belief, the Miranda protections were not applicable to the challenged statements. The Miranda requirements only began to apply at the point at which the detective acquired probable cause to believe that Green had committed the offense, as a result of observing a suspiciously large blood stain on Green's undershorts and receiving a report that a person matching Green's description had been seen struggling with the victim. See Green I, *240 at 436-37. Accordingly, I join the majority's conclusion that the challenged statements were obtained in a permissible manner.
Williams, J., concurs with Utter, C.J.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9623469. Public record. Not legal advice.