(dissenting) — Because I conclude that Jake Rehn was unlawfully questioned by a law enforcement officer while he was in custody, I respectfully dissent.
Miranda2 warnings protect a defendant’s right to be free from compelled self-incrimination while in the inherently coercive environment of police custody. State v. Heritage, 114 Wn. App. 591, 596, 61 P.3d 1190 (2002), petition for review filed (Wash. Jan. 22, 2003). The warnings must be given whenever a defendant is questioned in a custodial situation by a state agent. Id. (quoting State v. Post, 118 Wn.2d 596, 605, 826 P.2d 172, 837 P.2d 599 (1992)). In this case, a deputy sheriff asked Mr. Rehn a question that was reasonably likely to elicit an incriminating response, satisfying the interrogation by a state agent factors of the Miranda test. See id. at 598. What remains is the question of custody.
In determining whether a suspect was in custody, we ask whether a reasonable person in the suspect’s position would believe he or she was in police custody to the degree associated with formal arrest. State v. D.R., 84 Wn. App. 832, 836, 930 P.2d 350 (1997). “The defendant must show some objective facts indicating his or her freedom of movement was restricted.” Post, 118 Wn.2d at 607. Courts must engage every reasonable presumption against the defendant’s waiver of constitutional rights. State v. Riley, 19 Wn. App. 289, 294, 576 P.2d 1311 (1978) (quoting Barker v. Wingo, 407 U.S. 514, 525, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972)).
Here, the record shows that the deputy arrested the car’s driver and told Mr. Rehn and Chris Jones to stay in the car while the deputy placed the driver in the patrol car. Later, the deputy had Mr. Rehn and Mr. Jones exit the car during *157the investigation. The deputy asked the men if they had anything in their pockets and then took their driver’s licenses. In light of the fact that the car’s driver had been arrested and the deputy held the passengers’ licenses, a reasonable person would have believed his or her freedom was significantly curtailed. Consequently, I would find that Mr. Rehn was interrogated while in custody. Because he had not been advised of his Miranda rights before he was questioned, his incriminating statement should have been suppressed and his conviction reversed.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).