On Thursday, February 20, the Washington Supreme Court will hear oral arguments at the University of Washington School of Law. Exciting times! In advance of the arguments, I thought folks might enjoy a bit of an argument preview. So that’s what I’m doing. Of course, if you want to read through all the briefing yourself, you can review the filings at the Supreme Court’s own website. The Court is great like that. But if you’d rather just let me do that work, I’ve got you covered.
In this post, I’m going to start things off with the first case on the calendar: State v. Escalante. The other two cases—Lee v. Evergreen Hospital Medical Center and Gerlach v. The Cove Apartments—will get the same treatment sometime in the next couple of weeks. This is just Part 1. Stay tuned.
Okay, let’s get to it.
Summary of the Issue and the Facts
State v. Escalante is about what it means for a person to be “in custody” during police questioning. As you already know, probably from watching Law & Order or one of the other eight thousand police procedurals out there, the police have to give a suspect a Miranda warning after they arrest him and before they question him. (Well, they don’t “have” to, but if they don’t, then they can’t use the suspect’s answers.) Often, the warning is given when the suspect is formally arrested. But the constitutional requirement to give a Miranda warning does not depend on an officer saying “I’m placing you under arrest.” Rather, a suspect is entitled to receive the warning before being subjected to custodial interrogation. And a suspect can be in “custody” without having been formally arrested. But what does it mean to be “in custody”?
Well, that’s the question posed by Mr. Escalante’s appeal. Mr. Escalante was traveling in a van with a group of folks, heading back into Washington from Canada. They were all returning from the Shambala Music Festival in British Columbia. At the border crossing, after the initial round of questioning, all four passengers in the van were instructed to get out of the van and into the lobby of the border patrol building while the agents conducted a thorough search of their van. Everyone, including Mr. Escalante, was required to turn over their passports.
Based on the record, the lobby seems to have been just a normal lobby. It had chairs and reading materials. Other people came and went from the lobby while Mr. Escalante and his companions waited for the search to be completed. The lobby was a lobby; it wasn’t some sort of interrogation room or anything like that.
But it wasn’t exactly the waiting room at a dentist’s office either. At the border and without his passport, Mr. Escalante certainly wasn’t free to go anywhere he wanted. Border patrol guards were stationed in the lobby. People could not leave without permission from the guards. And if people waiting in the lobby wanted to use the restroom, they were first subjected to a pat down search.
That’s exactly what happened to two of Mr. Escalante’s travel companions. They needed to use the restroom, the agents patted them down, and the agents found drugs on both of them. At that point, the two companions were taken to a holding cell of some sort. Everyone seems to agree that, by that point, Escalante’s two companions were “in custody” under Miranda. They’d been moved from the lobby to a jail area in the border patrol building.
Meanwhile, agents were searching the van. They found drugs throughout the van, including inside an unidentified backpack. At that point, Mr. Escalante had been detained in the lobby for about five hours.
And then came the critical moment in this case: Mr. Escalante was in the lobby. His two friends had been placed in a holding cell. The agents had found drugs in the van and in the backpack, but they had not yet revealed that fact to Mr. Escalante. An agent walked into the lobby and asked who owned the backpack. Mr. Escalante admitted it was his.
After that, Mr. Escalante was not asked any further questions. The federal agents contacted the state police, who came and arrested Mr. Escalante. At that point the state police read him his Miranda rights. The question on appeal, however, is whether Mr. Escalante should have been given a Miranda warning earlier—before being asked about the backpack. If he was already in custody at that time, then he should have gotten the warning first.
The Law and the Proceedings Below
As you can imagine, the Washington Supreme Court has already set out a test to determine whether a suspect is “in custody” under Miranda. Recently, in State v. Lorenz, the Court explained that the test 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.” 152 Wn.2d 22, 37, 93 P.3d 133 (2004). [I thought you said this was a recent case? 2004 was 16 years ago! –ed. My goodness I’m old.] That’s a very general test, so the lower courts are left to fill in the details—to develop a sort of constitutional common law of precedent on both sides of the line, and then compare and contrast new cases with previous holdings.
In this case, Division 3 of the Court of Appeals concluded that Mr. Escalante was not in custody. State v. Escalante, 35812-7-III, 2019 WL 2000561, at *2 (Wash. Ct. App. May 7, 2019) (unpublished). Therefore, the agents were not required to give Mr. Escalante a Miranda warning before asking him if the drug-carrying backpack was his. Id. To reach this conclusion, however, the Court of Appeals did not look to prior Washington Supreme Court precedent. Nor did it look to prior Court of Appeals precedent (which wouldn’t have been controlling anyway). Instead, the Court of Appeals looked to federal precedent from the Ninth Circuit in United States v. Butler, 249 F.3d 1094 (9th Cir. 2001).
Not that there’s anything wrong with that! Federal constitutional law from the federal courts of appeals is certainly useful, though not binding, on issues of federal constitutional law in our state courts. But if our state follows the Ninth Circuit on the meaning of “in custody” at a border crossing, then Mr. Escalante has an uphill battle. The Butler court was pretty clear that being “in custody” at the border requires more than just forcing a person to leave his car and wait in a secondary location. Something more than “inconvenience or delay” is required, something like being “jailed” or “handcuffed.” Id. at 1099. The Butler court drew a distinction between being “restrained,” which might constitute being “in custody,” and simply not being “free to leave” at the border, which does not constitute being “in custody.” Id.
The Ninth Circuit was quite clear in Butler: “[T]he mere detention of a person in a border station’s security office from which he or she is not free to leave, while a search of a vehicle occurs, is not ‘custody’ for [Miranda] purposes.” Id. at 1100.
Following that view of federal constitutional law, Division 3 of the Court of Appeals made quick work of Mr. Escalante’s argument. Yes, he was “subject to a lengthy detention.” Escalante, 2019 WL 2000561, at *2. But he was not “handcuffed or otherwise further restrained” when he was questioned. Id. Accordingly, the Court of Appeals concluded that he was not “in custody” at the time.
My Random Thoughts About the Appeal
Okay, so that’s the setup. You’re now ready to listen to the arguments and understand the issues. If you were expecting me to weigh in with my view on the “right” answer or what the Supreme Court should do, I’m sorry to disappoint you. (They don’t listen to me anyway.)
But if you’re reading this preview, you might be interested in reading some of my random thoughts based on my review of the briefing and a bit of research. This issue is outside my areas of expertise, so please take all of this with a grain or two of salt. Anyway, with that disclaimer, here are some things I’ll be thinking about as I listen to the arguments and await the Court’s decision:
The Complication of the Border
The main complicating factor in this case (or, as Jeff Bezos might say, the main complexifier) is that Mr. Escalante was detained at the border. As the Ninth Circuit explained in Butler, “[i]t is well recognized that special rules apply at the border.” 249 F.3d at 1098. But some of the case law and briefing on this issue seems to elide the difference between  whether a detention is constitutionally permissible at the border and  whether that detention is custodial under Miranda. For example, look at this paragraph from from the State’s supplemental brief:
Any person required to submit to a secondary customs search may apprehend some increased level of official suspicion. It has been decided, however, that this perception of increased official suspicion is not sufficient by itself to apply coercive pressures equivalent to custodial questioning. During a border search, some period of detention for those persons is inevitable. Nevertheless, so long as the searches are conducted with reasonable dispatch and the detention involved is reasonably related in duration to the search, the detention is permissible under the [Constitution].
Resp. Supp. Br. at 3 (cleaned up).
But the connection between the first part of that paragraph and the second part is somewhat of a non sequitur. The fact that a stop or a detention is constitutionally permissible does not mean that questioning during that stop or detention does not require Miranda warnings. Indeed, a formal arrest based on probable cause is constitutionally permissible, but obviously Miranda applies in that circumstance.
In my view, this question really boils down to two issues. First, are these sorts of extended secondary detentions at the border sufficiently “normal” that individuals subjected to the detentions don’t feel the sort of custodial pressure against which Miranda warnings are supposed to protect? Second, and perhaps more importantly, there’s the practical question: Does the Court want to require Miranda warnings for every instance of secondary questioning at the border? Even if not an acknowledged part of the constitutional inquiry, I suspect the Court might have practical concerns with imposing Miranda‘s restrictions on that regular federal governmental function.
My point here, however, is just to say that these questions can’t be answered by relying on the fact that the Constitution allows more restrictive governmental actions at the border. Those actions will be permitted regardless. The question is whether, if the government wants to interrogate a person while subjecting them to those additional restrictions, the government must first provide Miranda warnings. The constitutionality of the restrictions themselves are not the issue.
The Court of Appeals Opinion
A brief comment on the Court of Appeals opinion. The Court of Appeals opens its opinion with a bit of fun. It includes a lyrical epigraph from the song “Shambala” by Three Dog Night: “Wash away my troubles, wash away my pain[,] With the rain in Shambala.”
The opinion then begins by saying: “Unfortunately for Mr. Alejandro Escalante, Shambala was only the beginning of his troubles.” This introduction references the fact that Mr. Escalante and his companions were returning from the Shambala Music Festival when they were stopped at the border.
I’ve got to admit, I’m not really a fan of this sort of “fun” and clever style of opinion drafting. To be clear, I love song references and clever plays on words. I try do that sort of thing in my articles and blog posts. But there’s something different about a formal opinion from a state court—an opinion dealing with the criminal prosecution of an actual person whose personal freedom is on the line. In that context, the frivolity seems a bit off to me.
I’m not sure anything can be done about this sort of judicial flourish. And I’m doubtful that the Supreme Court will say anything about it in this case. But in reading through the record, the fun and clever tone just struck me as ill-advised, so I figured I’d say something about it. [Might saying something about it also be ill-advised? –ed. Yeah, probably. Oh well.]
State and Federal Law Generally
Throughout his briefing, Mr. Escalante makes clear that his claim arises under federal constitutional law. This is not one of those cases with a defendant arguing that the state constitution provides more protection than the federal constitution. So the Washington Supreme Court will be interpreting and applying the Fifth Amendment of the federal Constitution in this case.
That means, as mentioned above, that the Washington Supreme Court’s decision will be controlled by U.S. Supreme Court precedent, but not by federal court of appeals precedent, even precedent from the Ninth Circuit. (I had a long post about this a while ago, back before Obergefell, when state and federal courts were disagreeing on the constitutional right to same-sex marriage. Check it out!)
I mention this because, based on my quick read of the most-recent Ninth Circuit decisions on custodial interrogation at the border, I think Mr. Escalante would likely lose under the Ninth Circuit standard. Again, this is well outside my substantive expertise, but I’d guess that the Ninth Circuit would conclude that the interrogation was not custodial, based on Bulter and other circuit precedent.
The question seems much less clear, however, based solely on U.S. Supreme Court precedent. And U.S. Supreme Court precedent is what matters here. Looking through previous Washington Supreme Court opinions applying Miranda, the Court seems to rely almost exclusively on prior Washington Supreme Court opinions and precedent from the U.S. Supreme Court. The Ninth Circuit doesn’t get a lot of love.
The parties’ briefing doesn’t seem to engage much with the U.S. Supreme Court precedent. Instead, they mostly argue about who should win under the various Ninth Circuit cases on custodial interrogation at the border. That focus makes some sense; there doesn’t seem to be any clear U.S. Supreme Court precedent on this issue, so you work with what you’ve got. But I doubt that the Washington Supreme Court will resolve this case by relying on Ninth Circuit holdings. Instead, I suspect the Court will focus its reasoning on binding precedent. And on that front, I don’t think the parties have given the Court much to work with.
The “Silver Platter” Doctrine?
I’m not sure if this matters, since the Supreme Court’s statement of the issue does not mention the “silver platter” doctrine and the Court of Appeals decision does not discuss the doctrine, but parties’ briefs disagree on the doctrine, so I figure it’s worth a mention.
The “silver platter” doctrine is actually a federal court doctrine from the time before state courts were subject to the exclusionary rule and Miranda under the federal Constitution. Federal courts were therefore faced with the question of what to do with evidence obtained from state actors using methods that would have violated the federal Constitution if the Constitution applied to the states. Now, of course, the position is flipped. The federal Constitution creates a floor of constitutional rights, but state constitutions can offer greater protections. So Washington’s version of the “silver platter” doctrine applies in Washington courts when federal agents use methods that are permissible under the federal Constitution, but impermissible under the state Constitution. Should Washington courts exclude evidence obtained by federal agents if those agents didn’t comply with heightened state constitutional protections?
The answer seems to be “that evidence independently and lawfully obtained by federal officers acting pursuant to federal law may be transferred to state authorities for use in a Washington State criminal proceeding.” State v. Brown, 132 Wn.2d 529, 591, 940 P.2d 546 (1997) (cleaned up). “[S]uch evidence need not be suppressed if the federal officers acted without the assistance or cooperation of the state officers.” Id. at 587.
So what does that mean here? Well, I’m not sure. Mr. Escalante asserts, correctly in my view, that the doctrine is irrelevant in his case because he’s arguing that the federal agents violated the federal Constitution. So there’s no need to think about actions that were proper under the federal Constitution but improper under the state Constitution. Mr. Escalante’s argument is that the federal agents violated the federal Constitution. If they did that, then he wins.
The State argues that the “silver platter” doctrine does apply here, but I think they confuse the issue a bit. First, the State argues that the federal agents had more constitutional authority than state agents because the federal agents were working at an international border. Resp. Br. at 11. That might be true in some sense, but it seems largely irrelevant. For one thing, Mr. Escalante is arguing that the federal agents did not have the constitutional right to do what they did to him at the border. It doesn’t matter what hypothetical state agents would have been able to do. For another, Mr. Escalante is not arguing that the Washington Constitution somehow limits border-related detention and interrogation to a greater degree than does the federal Constitution. His claim is all about the federal Constitution.
Second, the State then lists various federal regulations that authorize customs officials to stop and search vehicles at the border. Resp. Br. at 11-12. But that’s wholly beside the point. Mr. Escalante is not challenging the constitutionality of his stop or the search. He is merely arguing that he was entitled to Miranda warnings before being questioned. Furthermore, to the extent that Mr. Escalante’s argument is based on the federal Constitution, that argument cannot be rebutted by reference to federal regulations. The hierarchy of authority goes the other way.
One final thought here. Maybe, like me, you were pondering what might happen if the Washington Supreme Court created a split between the state’s interpretation of the federal Constitution and the Ninth Circuit’s interpretation. Would Washington courts grant any kind of “good faith” exception for the admission of evidence obtained by federal agents acting on their correct understanding of the federal courts’ interpretation of federal law?
I doubt it. Unlike the federal courts, our state doesn’t seem too fond of “good faith” exceptions. See State v. Afana, 169 Wn.2d 169, 181, 233 P.3d 879 (2010) (noting that a “good faith” exception “appears . . . incompatible with Washington’s nearly categorical exclusionary rule”). So I suspect the evidence wouldn’t be admissible in state court regardless of the good faith of the federal agents.
That’s All Folks
And for now, that’s all I’ve got. I’m looking forward to this argument, particularly the extent to which the Court looks to federal courts of appeals to help it resolve this question. I wonder how willing the Court would be to diverge from lower federal courts on a matter like border security, which is so tied up in federal power. But I guess we’ll see!