No. 98765-4-II

COURT OF APPEALS

DIVISION II

OF THE STATE OF WASHINGTON

_____________________________________________________

State of Washington, Respondent

Jill Manheim, Appellant

________________________________________________________________________

BRIEF OF APPELLANT

________________________________________________________________________

Jason D. MacLeod

Attorney for Jill Manheim, Appellant

123 Any Street

Seattle, WA 98405

(206) 321-8113

WSBA# 000

TABLE OF CONTENTS

A. Assignments of Error……………………………………………………………………………………………… 1

Assignments of Error…………………………………………………………………………………………………. 1

Issues Pertaining to the Assignments of Error……………………………………………………………. 1

B. Statement of the Case……………………………………………………………………………………………. 2

Procedural History…………………………………………………………………………………………………….. 2

Statement of Facts…………………………………………………………………………………………………….. 2

C. Summary of Argument…………………………………………………………………………………………… 5

D. Argument……………………………………………………………………………………………………………….. 6

I. THE TRIAL COURT ERRED WHEN IT DENIED MS. MANHEIM’S MOTION TO SUPRESS BECAUSE THE OFFICERS OBTAINED THE EVIDENCE ILLEGALLY…………………………………………………………………………………………….. 6

A. The officers’ evidence should be suppressed because the shed was not immediately adjoining the area of Mr. Tolbert’s arrest. 7

B. The law enforcement officers’ evidence should be suppressed because the officers had no articulable facts warranting a possible danger to their safety.…………………………………………………………………………………………………………………….. 9

II. UNDER THE FIFTH AMENDMENT ARTICLE 1 § 9, THE TRIAL COURT ERRED IN ALLOWING MS. MANHEIM’S STATEMENTS BECAUSE MS. MANHEIM DID NOT VOLUNTARILY, KNOWINGLY, OR INTELLIGENTLY WAIVE HER RIGHTS. 11

A. Under the totality of circumstances analysis, Ms. Manheim did not voluntarily, knowingly, or intelligently waive her Miranda rights. 12

1. Ms. Manheim did not voluntarily waive her rights because the police coerced her into answering their questions. 12

2. Ms. Manheim did not waive her rights because Ms. Manheim did not knowingly and intelligently waive those rights. 14

a) Ms. Manheim did not have the mental capabilities to knowingly and intelligently waive her Miranda rights. 14

b) Ms. Manheim did not waive her rights because the officer did not make an effort to confirm that Ms. Manheim understood her rights. 15

B. The trial court committed prejudicial error when it allowed Ms. Manheim’s statement…… 17

E. Conclusion……………………………………………………………………………………………………………. 19

TABLE OF AUTHORITIES

A. Table of Cases

Washington Cases

State v. Boyer, 124 Wn. App. 593, 604, 102 P.3d 833 (2004)…………………………………………… 8, 9

State v. Burns, 53 Wn. App. 849, 770 P.2d 1054 (1989)……………………………………………………. 17

State v. Campos-Cerna, 154 Wn. App. 702, 226 P.3d 185 (2010)………………………………………. 12

State v. Guloy104 Wn.2d 412, 425, 705 P.2d 1182……………………………………………………………. 17

State v. Hopkins, 113 Wn. App. 954, 55 P.3d 691 (2002)………………………………………………… 8, 9

State v. Johnson, 94 Wn.App. 882, 897, 974 P.2d 855 (1999)…………………………………………….. 12

State v. Martin, 73 Wn.2d 616, 440 P.2d 429 (1968)…………………………………………………………. 17

State v. Mendoza-Solorio, 108 Wn.App. 823, 33 P.3d 411 (2001)………………………………………. 17

State v. Miller, 92 Wn. App. 693, 964 P.2d 1196 (1998)……………………………………………………. 15

State v. Morales, 154 Wn. App. 26, 225 P.3d 311 (2010)……………………………………………… 12, 14

State v. Smith 165 Wn. 2d 511, 199 P.3d 386 (2009)……………………………………………………………. 6

B. Other Cases

Berghuis v. Thompkins, 130 S. Ct. 2250, 176 L. Ed. 2d 1098 (2010)…………………… 11, 13, 14, 16

Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961)……………….. 13

Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)……………… 11

Henry v. Kernan, 197 F.3d 1021, 1026-27 (9th Cir. 1999)…………………………………………………. 13

Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)………………………………… 12

Maryland v. Buie, 494 U.S. 325, 110 S. Ct. 1093, 108 L. Ed. 2d 276 (1990)……………………… 7, 10

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)……………………………. 11

Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410………………………………… 11

North Carolina v. Butler, 441 U.S. 369, 374-75, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979)…………. 12

U.S. v. Lemus, 582 F.3d 958, 964, (9th Cir. 2009)……………………………………………………… 7, 9, 10

United States v. Betters, 229 F. Supp. 2d 1103 (D. Or. 2002)……………………………………………… 14

United States v. Doe, 155 F.3d 1070, 1073 (9th Cir. 1998)……………………………………………. 15, 16

United States v. Garibay, 143 F.3d 534, 536, 538 (9th Cir.1998)………………………………………… 12

United States v. Hoyos, 892 F.2d 1387 (9th Cir. 1989)…………………………………………………. 10, 11

C. Constitunal Provisions

U.S. Const. amend. IV……………………………………………………………………………..6

Wash. Const. art. 1, § 7……………………………………………………………………………..6

A. Assignments of Error

Assignments of Error

The trial court erred in denying Ms. Manheim’s motion to suppress the evidence.
The trial court erred in denying Ms. Manheim’s motion to suppress statements.
The trial court erred in entering conclusion of law #3 ”immediately adjoining.” (CP 21).
The trial court erred in entering conclusion of law #4 ”articulable facts.” (CP 21).
The trial court erred in entering conclusion of law #5 ”properly discovering drugs and evidence on her person.” (CP 21).
The trial court erred in entering conclusion of law #6 ”waiver of Miranda rights.” (CP 21).
The trial court erred in admitting evidence obtained through the search of Ms. Manheim. (CP 21)
Trial court erred in entering a guilty verdict. (CP 22).

Issues Pertaining to the Assignments of Error

Under the Fourth Amendment of the U.S Constitution and Article 1 §7 of the Washington constitution did the trail court error by ruling the protective sweep lawful when: (1) the arrest took place outside; (2) the shed was not open to the area of arrest; (2) the officer ordered Ms. Manheim from the shed without being ordered to; (3) the officers overheard conversations about drugs and not violence; and, (4) the officers secured Mr. Tolbert prior to Ms. Manheim’s seizure? (Assignments of Error 1, 3, 4, 5, and 7.)

Under the Fifth Amendment Article 1 § 9 did the trial court error in allowing Ms. Mannheim’s statements when: (1) the officers ordered her out of the shed at gun point, grabbed her arms, removed her coat, handcuffed her, and interrogated her late at night; (2) the officers testimony evinces Ms. Manheim as chattering nonstop, speaking incoherently, most likely under the influence of drugs, and failing to follow simple instructions; (3) the officers made no effort to confirm Ms. Manheim understood her rights. (Assignments of Error 2 and 6.)

B. Statement of the Case

Procedural History

Ms. Manheim was charged with unlawful possession of controlled substance with intent to deliver under RCW 69.50.401(2)(b) on January 1, 2009. CP 3. After an evidentiary hearing, the trial court denied Ms. Manheim’s motion to suppress the evidence. The case went to trial, and a jury found Ms. Manheim guilty of the unlawful possession of controlled substance — methamphetamine with intent to deliver on August 14, 2009. CP 11. Judgment and sentence were entered on August 14, 2009. CP 9. Ms. Manheim filed a Cr 3.6 Motion to Suppress Evidence of the Methamphetamine, and a Cr 3.5 Motion to exclude her statements made after arrest on August 27, 2009, 2009. CP 13,16.

Statement of Facts

At 11:30 on Thursday evening, January 1, 2009, Ms. Manheim, Mr. Tolbert, and another woman were socializing in an outbuilding near Ms. Manheim’s main residence. RP I 13. Neither Ms. Manheim nor her two guests have any recorded violent history. One of her guests, Darrell Tolbert, had an arrest warrant for noncompliance, a nonviolent crime. RP I 50. The three arresting officers were on the premises on previous occasions and have never seen evidence of weapons or drugs on the property. RP I 18, RP I 22, RP I 50. Mr. Tolbert lived in one of the several outbuildings twenty feet from the main residence. CP 19. The arrest warrant for Mr. Tolbert permitted law enforcement agents to enter Ms. Manheim’s property. On the above date, four officers executed the arrest warrant. CP 18. Parking on the main road at the entrance of the property, one officer stayed at the entrance, the other three quietly walked up the driveway. RP I 22.

On their way to the main residence, officers Murray and Hannahan heard voices speaking inside a shed. RP I 50. The officers waited outside the shed eavesdropping on the occupants’ conversations. RP I 40. The officers did not hear any mentioning of money, weapons, or threats to officer safety. RP I 15, RP I 47. Officer Hannahan testified he heard laughing and friendly conversations, perhaps even partying. Id. The officers waited outside the shed for Mr. Tolbert to exit. After awhile, Mr. Tolbert exited the shed and the officers ambushed him. RP I 7. Ms. Manheim and her guest, hearing a commotion, slammed the shed door. Rp I 52. Officers Murray and Hannahan, the two closest to the shed, testified Ms. Manheim or her guest locked the shed. RP I 8, RP I 17, RP I 47. Upon subduing Mr. Tolbert outside the shed, they handcuffed and searched him. RP I 7. Mr. Tolbert did not carry any weapons on his person. Id. All officers testify that Mr. Tolbert is in their custody before ordering Ms. Manheim outside of the shed. RP I 8, RP I 24, RP I 49.

Officer Upton, who was on the other side of the shed, ran to the shed after hearing the ambush. RP II 12. He saw and heard the people enter into the shed. RP I 23. Officer Hannahan ordered Deputy Upton to ”watch the shed.” RP I 24. Despite the order, Officer Upton drew his gun and ordered Ms. Manheim and her guest out of the shed. RP II 12. Ms. Manheim exited the shed. RP II 13. Even though there was an officer available for back up, no officer called him. RP I 33 RP I 41. At no point, either in the shed or outside, did Ms. Manheim make any threatening movements or communication. Yet, the officers believe she was a threat to their safety. After they seized her, The Officers searched her person and the shed and found no weapons. RP I 11, RP I 12.

Deputy Upton commanded Ms. Manheim to take her hands out of the pockets and when she did not comply, he grabbed on to her left hand and pulled it out of the left pocket; this is when Deputy Upton saw, without the aid of a flashlight, what appeared to be drugs. RP II 13. He testified that he saw in the left coat pocket a baggy with what appeared to be a white crystalline substance. Id. However, there is a discrepancy in the officers’ testimony. Officer Murray said that he grabbed Ms. Manheim’s left hand and looked inside the left pocket, with a flashlight, and saw a white crystalline substance and torn pieces of paper. RP II 72. According to officer Murray’s testimony, there is a smaller bag of drugs that he doesn’t know where they came from. RP II 74. He saw only the large baggy found in the right pocket. Yet, in contradiction with Deputy Upton, he looked in the left pocket with a flashlight and did not see a baggy of drugs. Deputy Upton placed Ms. Manheim in handcuffs and told the officers that she was in possession and Officer Hannahan read her Miranda rights. RP II 27. Before and during her Mirandizement she was speaking over loudly and incoherently. RP II 53. The officers took off Ms. Manheim’s coat and found a baggy of drugs and a scale in the right coat pocket. RP II 73. Deputy Upton asked her what was in the pocket and she answered drugs. RP II 76. Deputy Upton asked her if the coat was hers and she said it was. Id.

C. Summary of Argument

First, the trial court erred when it denied the suppression of the evidence motion and allowed Ms. Manheim’s statements at trial. The protective sweep is an exception to the jealously guarded constitutional right against unreasonable search and seizures. The protective sweep is appropriate when the area searched is immediately adjoining the area of arrest and, if the area swept is beyond the immediate area, when the officers have articulable facts and rationale inferences that imply a the area to be swept poses a danger to their safety. In the present case, the area of arrest was outside and surrounded by other structures. The shed, which was near the area of arrest, is not immediately adjoining because it is a completely different structure and the door to the shed was closed and locked. The articulable facts requirement presumes there was an actual danger to the officers. In the present case, the defendant and her friends had no history of violent crimes. The actions of Mr. Tolbert are understandable because he was ambushed in the middle of the night. Additionally, officer testimony relayed that Mr. Tolbert was secure before ordering Ms. Manheim out of the shed. The officers stated they heard friendly conversations in the shed. Once Ms. Manheim heard the commotion, she ran into the shed and locked the door, demonstrating her actions to be non-confrontational.

Second, the trail court erred when the trial court allowed Ms. Manheim’s incriminating statements. The Fifth Amendment protects individuals from self-incrimination and requires that arresting officers read the Miranda rights to individuals. If an individual chooses to waive their Miranda rights, then the court must analyze the circumstances of the waiver. The court looks to whether the waiver was explicit or implicit. In the present case, Ms. Manheim did not explicitly waive her rights. In analyzing whether an implicit waiver was given, the court looks to whether the defendant voluntarily, knowingly, and intelligently waived their rights in the totality of circumstances. In the present case, the officers coerced Ms. Manheim into making incriminating statements when deputy Upton ordered her from the shed by the barrel of the gun late at night in a rural area, when they grabbed her arms and handcuffed her, and when they took advantage of her fragile mental state. In other words, the officers created an environment of fear to coerce Ms. Manheim into making the incriminating statements. In addition, her mental capacity at the time of arrest demonstrates that she couldn’t comprehend or understand the abstract theories of Miranda and the consequences of waiving them. Moreover, the officers complete lack of confirming that Ms. Manheim knew, understood, and comprehended her Miranda rights evinces her complete lack of understanding and the officers complete lack of confirming she understood.

And finally, the trial court’s error in allowing Ms. Manheim’s statements was not harmless because the incriminating statements significantly influenced the jury and without her statements, the contradictions and weakness in the state’s arguments would lead to a not guilty result.

D. Argument

I. THE TRIAL COURT ERRED WHEN IT DENIED MS. MANHEIM’S MOTION TO SUPRESS BECAUSE THE OFFICERS OBTAINED THE EVIDENCE ILLEGALLY.

The Fourth Amendment of the United States Constitution and Article 1 § 7 of the Washington Constitution prohibits unreasonable seizures. Both constitutions promote the protections of persons and their property. Only in extreme circumstances should these protections be ignored. To this end, the courts have developed ”jealously and carefully drawn” exceptions to these fundamental constitutional protections. State v. Smith 165 Wn. 2d 511, 199 P.3d 386 (2009). One such exception is the protective sweep.

The scope of a protective sweep is limited to a perfunctory visual inspection of areas where a person may be concealed or from where an attack can be launched. Maryland v. Buie, 494 U.S. 325, 110 S. Ct. 1093, 108 L. Ed. 2d 276 (1990). If the area immediately adjoins the point of arrest, the police need not justify their actions by demonstrating a concern for their safety. Id. at 334. However, when the protective sweep extends beyond this immediate area, “there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Id.

A. The officers’ evidence should be suppressed because the shed was not immediately adjoining the area of Mr. Tolbert’s arrest.

The officers executed their arrest warrant outside a away from the main residence; the closed shed, which housed Ms. Manheim, does not immediately adjoin either the arrest area or the main residence. Courts have found that an immediately adjoining area consists of ”closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.” United States v. Lemus, 582 F.3d 958, 962 (9th Cir. 2009). In Lemus, the suspect was outside of his house being questioned by the police. He opened his sliding glass door and started entering into his living room. The police quickly apprehended him. The officers searched the living room and found a firearm. The court stated that since he was partially inside the house, the officers’ search of the living room was legal because it was in an immediately adjoining area to the arrest. Id. Unlike the circumstances in Lemus, the circumstances in this case show that Mr. Tolbert was arrested outside and the shed door was locked. He was not inside the shed. He was not halfway in or out of the shed. He was completely out of the shed, and the officers waited for him to completely exit the shed.

In another case, Hopkins, the State conceded that a shed is not an immediately adjoining area to an arrest that occurred outside of the shed. State v. Hopkins, 113 Wn. App. 954, 55 P.3d 691 (2002). In Hopkins, the arresting officer saw the defendant enter and then exit a shed. The officer promptly arrested the defendant outside of the shed and searched the shed and nearby trailer for individuals and weapons. Decisively, the court ruled the search exceeded the scope of the protective sweep. The state provided no precedent and made no argument that the court should extend the protective sweep to other structures. The facts in the present case are similar to Hopkins. Mr. Tolbert was arrested outside of a shed. Nonetheless, the police searched and seized the inhabitants of the shed. Since the shed is a completely separate area, the police should not have the authority to search it. The court in this case should not create precedent that allows police officers to search completely different structures without requiring articulable facts.

Furthermore, in cases where an area was considered immediately adjoining, the area was down the hallway several feet. State v. Boyer, 124 Wn. App. 593, 604, 102 P.3d 833 (2004). The apartment in Boyer is clearly a single structure. Ms. Manheim’s property comprises several structures. In Boyer, the door down the hallway is immediately adjoining because it’s appurtenant to the area of arrest. In the present case, the shed is a separate structure and not appurtenant to the area of arrest. If the outdoors were appurtenant to the shed, this would extend the immediately adjoining area to any outbuilding on the property, because any structure could be used as a hiding place or a place to stage an ambush. If the states position, that the shed is an immediately adjoining area, would prevail, any structure on the premises could be searched. The state and federal constitutions would not allow officers to search the entire property, especially those properties with several outbuildings, like Ms. Manheims. Arrest warrants do not provide a license to search every outbuilding. The state and federal constitutions protect Ms. Manheim and other individuals from such egregious violations.

B. The law enforcement officers’ evidence should be suppressed because the officers had no articulable facts warranting a possible danger to their safety.

Once the officers secured Mr. Tolbert, there were no articulable facts warranting a protective sweep. The court in Hopkins stated, ”[f]or purposes of a “protective sweep” of premises where a lawful arrest has been effected, a person who is under police control no longer poses a danger to officer security.” State v. Hopkins, 113 Wn. App. 954, 960, 55 P.3d 691 (2002). Another court ruled, that a protective sweep must last only as long as is required to complete the arrest. State v. Boyer, 124 Wn. App. 593, 601, 102 P.3d 833 (2004). In Hopkins, the officers seized two persons outside a building, and then searched the nearby structures. The court found that the two men were in custody and did not present a threat, and the state did not provide enough evidence to prove that aggressive meth users were inside the other structures. Therefore, there were no articulable facts. Like the suspects in Hopkins, Although Mr. Tolbert resisted being handcuffed, once under custody, he no longer posed a danger to the officers. Mr. Tolbert was the only individual to express resistance. Ms. Manheim exhibited no signs of violence. She did not exhibit any threatening behaviors of a dangerous meth user. Quite the contrary, she retreated inside the shed and locked it, avoiding confrontation. Additionally, officer testimony stated they secured and arrested Mr. Tolbert before ordering Ms. Manheim out of the shed. Murray Rp. at 8, Upton Rp. at 24, Hannahan Rp. at 49. The officer’s sole purpose for being on Ms. Manheim’s property was to arrest Mr. Tolbert, not to order people out of their homes. Therefore, the officers, once Mr. Tolbert was in custody, should have ended their actions on Ms. Manheim’s property and left. Their continued actions — searching the shed and seizing Ms. Manheim — were unlawful because the officers secured Mr. Tolbert.

There were no articulable facts suggesting Ms. Manheim or Mr. Tolbert had a violent history or presented a threat to the officers. Courts have found that an officer’s previous experience with suspect is illustrative of whether officers can articulate reasonable fear. The court in Lemus looked to the arresting officer’s previous experience with the suspect, and through this experience, could reasonably infer the dangerousness of the suspect. U.S. v. Lemus, 582 F.3d 958, 964, (9th Cir. 2009). In Lemus, the officer was familiar with both the suspect and his property. The officer knew the suspect had a felony record, so when the officer saw a gun on the premises, he logically thought it would be illegal. The three officers, in the present case, had been to the premises before and two officers knew Ms. Manheim and Mr. Tolbert. The officers did not associate any violence with Ms. Manheim, Mr. Tolbert, or her property. Unlike the officers in Lemus, the officers found no evidence that would lead them to believe there was a weapon on the premises. Quite the contrary, after the search and seizure of each individual, there was no evidence of any weapon.

Since Ms. Manheim was sequestered in the shed, and the officers knew exactly how many people were there, and those in the shed provided no objective threat besides a banging noise, the officers lack articulable facts that point to a threatening situation. The Buie Court stated that a protective sweep is applicable only if the ”officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). In one case, Hoyos, the suspect was wanted in connection with dealing large quantities of cocaine. United States v. Hoyos, 892 F.2d 1387 (9th Cir. 1989). Furthermore, once the officers arrived on the scene, several suspects were seen running into the premises, and the officers were not aware how many were in the house. Id. In the present case, the officers testify that meth users can be dangerous, but there was no evidence that Ms. Manheim was a meth user. Unlike the suspect in Hoyos, who deals in large quantities of cocaine, a violent trafficking trade, the officers were there to execute an arrest warrant for a non-violent non-drug related crime. Unlike the officers in Hoyos, who did not know how many people were in the premises, the officers in the present case knew exactly how many people were in the shed. When the officers eavesdropped on their conversations, they thought they heard words used in drug dealings, but this does not justify the assumption that Ms. Manheim is a meth user prone to violence. The officers heard laughing and friendly voices and no mention of money or violence. Furthermore, the officers did not have a subjective fear that Ms. Manheim was dangerous because the officers never called for backup.

II. UNDER THE FIFTH AMENDMENT ARTICLE 1 § 9, THE TRIAL COURT ERRED IN ALLOWING MS. MANHEIM’S STATEMENTS BECAUSE MS. MANHEIM DID NOT VOLUNTARILY, KNOWINGLY, OR INTELLIGENTLY WAIVE HER RIGHTS.

The array of protections set forth in Miranda v. Arizona applies when law enforcement agents interrogate a person in custody. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Before any statement may be admitted at trial against a defendant, the State must establish that the defendant knowingly and intelligently waived his right to remain silent. Berghuis v. Thompkins, 130 S. Ct. 2250, 2260, 176 L. Ed. 2d 1098 (2010). The waiver analysis provides for two methods of inquiry: first, the waiver must be ”voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception,” and second, ”made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” Berghuis v. Thompkins, 130 S. Ct. 2250, 2260, 176 L. Ed. 2d 1098 (2010) quoting Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410.

A court determines whether there was waiver by examining the totality of the circumstances, including the background, experience, conduct of the accused (including mental health and education, police coercion and place of interrogation North Carolina v. Butler, 441 U.S. 369, 374-75, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979) and State v. Campos-Cerna, 154 Wn. App. 702, 226 P.3d 185 (2010). Often, such a burden is met by evidence of a signed waiver or an express verbal waiver of the right, but an express statement is not necessary to establish waiver. Butler, 441 U.S. at 373. Rather, the reviewing court must examine all of the circumstances. Id. In the present case, Ms. Manheim did not explicitly waive her rights; therefore, we will look to whether she implicitly waived her rights.

Courts should not presume a waiver, but should require the State to prove that the defendant waived his rights knowingly and intelligently. Id. (citing Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). The appellate court reviews de novo whether there was a valid waiver of Miranda rights. State v. Johnson, 94 Wn.App. 882, 897, 974 P.2d 855 (1999). The state has a ”heavy burden” to prove the defendant knowingly and intelligently waived her right. State v. Morales, 154 Wn. App. 26, 225 P.3d 311 (2010).

A. Under the totality of circumstances analysis, Ms. Manheim did not voluntarily, knowingly, or intelligently waive her Miranda rights.

1. Ms. Manheim did not voluntarily waive her rights because the police coerced her into answering their questions.

Ms. Manheim involuntarily waived her rights because the officers intimidated and coerced her. In determining voluntariness of a waiver, the court asks: ”[i]s the confession the product of an essentially free and unconstrained choice by its maker? … The line of distinction is that at which governing self-direction is lost and compulsion, of whatever nature or however infused, propels or helps to propel the confession.” Henry v. Kernan, 197 F.3d 1021, 1026-27 (9th Cir. 1999) (quoting Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961). In the Henry case, the court ruled that the officers coerced the defendant by continuing to question him after the defendant requested counsel and by creating an environment where the defendant did not feel safe or secure in his person. Id. Through the officer’s questioning, the defendant made statements that were confused, rambling and incoherent. Id at 1027.

Similarly to the defendant in Henry, Ms. Manheim was speaking incoherently, showed signs of confusion, and faced physical violence when the officers grabbed her arms and pointed a firearm at her. RP II 80. Furthermore, Ms. Manheim’s mental capacity was diminished because, as the state argues, she is a meth user. Ms. Manheim’s physical coercion manifested — when the officers arrested Ms. Manheim in the middle of the night in a rural area; when the officers ambushed Mr. Tolbert and Ms. Manheim ran back into the shed; and, when the officer pointed a gun at Ms. Manheim when she exited the shed. Like the defendant in Henry, she did not feel safe or secure in the area of arrest and interrogation. By creating an atmosphere of fear, the officer’s coerced Ms. Manheim into making inculpatory statements.

Under the totality of the circumstances analysis, Ms. Manheim is shown to be coerced into self-incriminating herself. First, Ms. Manheim saw men ambush her friend before she retreated and locked herself inside the shed. Second, Deputy Upton, with a drawn firearm, ordered Ms. Manheim out of the shed. Third, Upton ordered her to follow instructions, and when she didn’t, physically forced her. Fourth, took off her coat on a snowy night and required she answer her his questions. These factors show that Ms. Manheim was deliberately shaken so that she would answer their questions.

2. Ms. Manheim did not waive her rights because Ms. Manheim did not knowingly and intelligently waive those rights.

Ms. Manheim did not knowingly and intelligently waive her rights because she was not fully aware of both her rights and the consequences of her decision to abandon her rights. ”If the State establishes that a Miranda warning was given and the accused made an uncoerced statement, this showing, standing alone, is insufficient to demonstrate a valid waiver of Miranda rights; the prosecution must make the additional showing that the accused understood these rights.” Berghuis v. Thompkins, 130 S. Ct. 2250, 176 L. Ed. 2d 1098 (2010). Ms. Manheim did not waive her rights because she did not understand her rights.

a) Ms. Manheim did not have the mental capabilities to knowingly and intelligently waive her Miranda rights.

Ms. Manheim’s detached and incoherent mental state displays that she was not mentally capable of understanding her Miranda rights. The court in the Betters case found that an individual could not waive their rights if the person could not comprehend the abstract qualities of the rights themselves and the consequences of waiving them. United States v. Betters, 229 F. Supp. 2d 1103, 1107 (D. Or. 2002). The officers, in the Betters case, questioned the defendant after reading her Miranda rights. The defendant acknowledged that she understood her Miranda rights, gave permission to be searched, and followed police instructions. However, she was under the influence of alcohol, possibly drugs, and, the court determined, not able to understand the concepts of Miranda or waiver because of the severe limitations on her mental abilities. Id. Like the defendant in Betters, Ms. Manheim was most likely under the influence of alcohol and drugs, evidenced by the wine bottle and meth, and could not comprehend the abstract qualities of the Miranda rights. Officer testimony stated she was chattering nonstop, did not know what was going on, and was speaking incoherently. RP II 63, 65, 66. Ms. Manheim’s mentally diminished state is further exemplified by her inability to follow the simple police instructions to keep her hands in the air and drop the wine bottle. In the Betters case, the defendant’s diminished mental capacity weighed heavily on the court’s decision that the defendant did not understand her Miranda rights. Unlike the defendant in Betters, Ms. Manheim did not explicitly state she understood her rights. Unlike the defendant in Betters, Ms. Manheim did not make any indication that she understood her Miranda rights. But, like the defendant in Betters Ms. Manheim was mentally incapable of understanding her rights. Thus, her waiver was not made knowingly or intelligently.

Under the totality of circumstances test, Ms. Manheim’s diminished mental capacity and erratic conduct reflects her improper comprehension of the abstract qualities of her Miranda rights. Ms. Manheim’s inability to understand what is going on when the officers seized her and her nonstop chattering before, during, and after being Mirandized, exemplifies the factors the court in Betters acknowledged invalidated a Miranda waiver. Whether or not Ms. Manheim was intoxicated, her conduct portrays an individual who is disconnected from reality.

b) Ms. Manheim did not waive her rights because the officer did not make an effort to confirm that Ms. Manheim understood her rights.

To determine whether suspects have knowingly and intelligently waived their Miranda rights, courts often look to the conduct of the interrogating individuals. State v. Miller, 92 Wn. App. 693, 964 P.2d 1196 (1998). In the Doe case, where the court found a sufficient Miranda warning was given, the officer reviewed the suspect’s Miranda rights with him and specifically asked if the suspect knew what ”coercion” meant. United States v. Doe, 155 F.3d 1070, 1073 (9th Cir. 1998). The suspect did not know the word and the Agent provided an explanation. Id. In another case where the Miranda reading was sufficient, the officer read aloud the Miranda rights and had the defendant read parts of the Miranda rights out loud as well to demonstrate that he could read and speak English. Berghuis v. Thompkins, 130 S. Ct. 2250, 2260, 176 L. Ed. 2d 1098 (2010). Additionally, the officer presented the defendant with a form to sign acknowledging he understood his Miranda rights. Id at 2256. The officers in the present case did not conduct any actions to confirm whether Ms. Manheim did not understand her rights.

Without any effort by the officers to help Ms. Manheim understand her Miranda rights, she could not have understood her Miranda rights. When the officer was reading her rights, she was talking incoherently and loudly at the same time. The officer could not have made an attempt to guarantee Ms. Manheim understood her rights if she wasn’t even listening. Furthermore, the officer had to raise his voice to speak over her. Unlike the officer’s in the Berghuis case, the officers did not provide Ms. Manheim with a form for her to sign. Quite the opposite, they read her rights without any question of confirmation. At no point in the officer testimony do they mention whether she understood her rights. Additionally, they did not provide her with a written from like the officers did in the Berghuis case. Unlike the arresting agent in the Doe case, they did not stop to question Ms. Manheim at any point to acknowledge that she understood or even heard her rights.

Under the totality of the circumstances test, absent simple conduct to acknowledge the suspect understood their Miranda rights, the Supreme Court stated in Berghuis, that a waiver could not voluntarily, knowingly, and intelligently manifest. Ms. Manheim exited the shed speaking loudly and incoherently. Officer testimony eludes their belief that she wasn’t aware of what was going on. The officer’s aggressive behavior and lack of effort to confirm Ms. Manheim knew her rights lead to the conclusion that she would not understand her rights. Since the waiver could not occur, the trial court erred in allowing Ms. Manheim’s statements.

B. The trial court committed prejudicial error when it allowed Ms. Manheim’s statements.

The jury could not have found Ms. Manheim guilty, absent the prejudicial error, if not for her admission that the coat was hers and the substance therein was a drug. In determining whether a trial court committed prejudicial error in a criminal case, the appellate court looks to whether the error presumptively affected the outcome of the case. State v. Burns, 53 Wn. App. 849, 770 P.2d 1054 (1989) aff’d, 114 Wn. 2d 314, 788 P.2d 531 (1990). If the appellate court is unable to rule that the individual would have been convicted but for the prejudicial error, then the error will not be deemed harmless. State v. Martin, 73 Wn.2d 616, 440 P.2d 429 (1968). Additionally, a constitutional error is presumed prejudicial and the burden of proving that error was harmless falls on the state. State v. Mendoza-Solorio, 108 Wn.App. 823, 33 P.3d 411 (2001). The courts use the ”overwhelming untainted evidence” standard for determining whether the constitutional error is harmless. State v. Guloy104 Wn. 2d 412, 425, 705 P.2d 1182. Under this test, the appellate court looks to the untainted evidence and considers whether the evidence is so overwhelming that it would lead the jury to a different result. Id at 425.

There are several factual discrepancies that undermine the state’s argument if Ms. Manheim’s statements were not allowed at trial. First, the intent to deliver charge would be difficult to prove beyond a reasonable doubt but for the trial court’s prejudicial error. During the trial, officer Hannahan testified that the amount of meth found on Ms. Manheim’s person was an amount too large for personal consumption. RP II 90. However, according to officer Hannahan’s later statements this would only be a six-day supply of meth. Id. Consequently, the jury is required to believe that a meth user buys their drugs everyday. Moreover, there is no evidence linking the possible drug related telephone call the officers overheard to Ms. Manheim. They did not find a cell phone on her. They can’t prove that she was the person on the phone. Additionally, the amount of money found on Ms. Manheim is not indicative of drug dealing. RP II 17. Furthermore, because the money wasn’t found in a purse of wallet, is not solid basis for assuming the money was used to buy or sell drugs. The $185 found on her person after the two largest celebrations of the year does not imply that the cash was acquired through illegal means. RP II 90.

Second, the contradictions in officer testimony concerning who grabbed which hand and where the drugs were found considerably weaken the state’s arguments if Ms. Manheim’s statements were not allowed. RP II 92. Officer Murray, the one with the flashlight, stated he saw a loose crystal substance in the coat pocket with some paper. RP II 93. Deputy Upton said he saw a baggy of what he thought was meth. Id. Officer Murray only saw a large baggy that was taken out of the right coat pocket. The smaller baggy, found by Deputy Upton, arguably from the left coat pocket, was never seen by any of the other officers, even when officer Murray looked with a flashlight. Without Ms. Manheim’s admission that what was in her pocket was drugs, then the proof that the substance was a drug wouldn’t have been discovered until trial. The jury, to find a guilty verdict, would require the state to resolve the questionable discrepancies in the officers’ testimony to prove beyond a reasonable doubt that Ms. Manheim is guilty requires exact information.

In the present case, the evidence likely persuaded the jury of Ms. Manheim’s guilt due in large part to her inculpatory statements. Without Ms. Manheim’s statements there is insufficient evidence of her possession of a controlled substance or intent to deliver. Ms. Manheim’s statement that the coat was hers puts her in direct connection with the drugs; both the scale and drugs were found in the coat. Without these statements, the jury would likely find Ms. Manheim not guilty. The coat may not belong to Ms. Manheim. On a snowy night, she could have worn anyones coat. There were people inside the house and inside the shed. The state’s analysis would require ownership of the coat, which it didn’t have to do in the present case. Therefore, her connection with the drugs would be tenuous at best.

E. Conclusion

For the reasons set out above, Ms. Manheim respectfully requests that the Court of Appeals find that the trail court erred in denying her motion to suppress the evidence and the motion to suppress statements and remand the case to the trail court for further proceedings.

Respectfully submitted this 15th day of November, 2010.

Jason D. MacLeod

WSBA No. 000

Attorney for Jill Manheim Appellant