(dissenting) — "It is inconceivable that, 27 years after the United States Supreme Court’s decision in Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A.L.R.3d 974 (1966), law enforcement officers play games with advising arrestees of their Miranda rights.” State v. Trevino, 74 Wn. App. 496, 503, 873 P.2d 1214 (1994) (Munson, J., dissenting), petition for review filed June 20, 1994, Supreme Court cause 61890-9. Difficult issues arise in the Miranda context from time to time which try the conceptual talents of bar and bench. It is unrealistic to ascribe to police officers an ability to always make on-the-spot judgments correctly which members of the legal profession may then second-guess at their leisure. But this case is not complex, or at least was not at the arrest stage. There can no longer be any excuse when a law enforcement officer, having taken custody of a suspect and subjecting him to interrogation, fails to spend a minute or two explaining his Miranda rights. "The rule the Court established in Miranda is clear.” Fare v. Michael C., 442 U.S. 707, 717, 61 L. Ed. 2d 197, 99 S. Ct. 2560 (1979). The Miranda rule is "now so deeply embedded in our culture that most schoolchildren know not only the warnings, but also when they are required . . .”. Oregon v. Elstad, 470 U.S. 298, 369 n.13, 84 L. Ed. 2d 222, 105 S. Ct. 1285 (1985) (Stevens, J., dissenting). This is not a situation where it is murky whether the suspect was in custody or whether the *126questioning was designed to elicit incriminating evidence. It was settled at the time of the arrest that when a suspect in custody turns over contraband in response to a request by law enforcement, the act is testimonial in nature. State v. Moreno, 21 Wn. App. 430, 433, 585 P.2d 481 (1978), review denied, 91 Wn.2d 1014 (1979); State v. Dennis, 16 Wn. App. 417, 422-24, 558 P.2d 297 (1976). It was also settled that when a community corrections officer is acting in his capacity as a peace officer, he is an agent of the State for purposes of Miranda. State v. Sargent, 111 Wn.2d 641, 652, 762 P.2d 1127 (1988). The necessity of Miranda warnings under these facts is not debatable and the State does not contend otherwise. Past exhortation has not prevented this patent violation. The prospective loss of prosecutions might. Accordingly, I respectfully dissent.
The focus on whether the heroin was tainted under the fruit of the poisonous tree doctrine is misplaced. The problem is not with the physical evidence per se. Because Roy Gonzalez did not employ coercion, the heroin is not subject to suppression. State v. Wethered, 110 Wn.2d 466, 473-74, 755 P.2d 797 (1988). The problem, rather, is with the foundation through which the physical evidence was introduced. Mr. Gonzalez testified the heroin was not on his desk when he and Ms. Lozano entered the room. Suddenly, there it was. No one else was present. He did not place it there. The trial court drew the only conclusion any rational trier of fact could have reached:
The only logical conclusion which reasonably follows from the facts stated is [the heroin] was placed there by Miss Lozano. It having been placed there by Miss Lozano, it must have been in her possession to do so.
The trial court’s suppression ruling notwithstanding, the act of producing contraband was not in fact suppressed. The only evidence suppressed was what prompted Ms. Lozano to produce it. The majority finds this result acceptable because "[t]his evidence was not presented to prove the testimonial act, but to establish the inference of possession.” Majority, at 121. This is new law.
*127"The word 'suppress’ means to effectively prevent from using . . Rodgers v. United States, 158 F. Supp. 670, 680 (S.D. Cal. 1958). There are exceptions, such as allowing the use of otherwise suppressed testimonial evidence for impeachment. State v. Brown, 113 Wn.2d 520, 556, 782 P.2d 1013, 787 P.2d 906, 80 A.L.R.4th 989 (1989); see also State v. Greve, 67 Wn. App. 166, 173-74, 834 P.2d 656 (1992), review denied, 121 Wn.2d 1005 (1993). Here, the very evidence which the trial court found inadmissible in the prosecution’s case in chief was admitted through semantical sleight of hand. The officer’s testimony served the functional equivalent of asking him, "Now Mr. Gonzalez, without telling us where you got the heroin, where did you get the heroin?”
This case is distinguishable from Wethered. There, an undercover officer witnessed a drug transaction at such close range he could identify the drug as hashish. He called dispatch and responding officers asked the suspect to turn over the hashish, which he did. Wethered held that because no Miranda warnings were given, the confessional act of production was subject to suppression. Wethered, at 468-71. Absent a showing of actual coercion, however, the resulting physical evidence was not subject to suppression. Wethered, at 473-74. The distinguishing feature is that the State could have sought to introduce the hashish through two independent routes: (1) the impermissible route of allowing the interrogating officer to testify to confessional acts; and (2) the permissible route of allowing the undercover officer to testify to his observations. The State tried both, but needed only the latter:
Here, the stipulated untainted evidence against Wethered — the detective’s observation of Wethered selling a brown chunky substance from his car and the chemical test of the brown chunky substance revealing it to be a derivative of marijuana — overwhelmingly supports Wethered’s conviction for unlawful delivery of a controlled substance.
Wethered, at 475.
In this case, there is no independent evidence tying the heroin to Ms. Lozano. There is only Mr. Gonzalez’s tainted testimony.
*128The flaw in the majority’s disposition centers on a distinction between direct and circumstantial evidence which does not exist. Everyone can see clearly that the officer’s testimony of his direct observation ("I saw her do it”) is inadmissible. But his indirect testimony ("Somebody did it, it wasn’t me”) is just as objectionable. The officer’s knowledge in either event resulted from a Miranda violation. His knowledge was not the fruit of the poisonous tree, but the tree itself and whether the officer’s knowledge is admitted into evidence directly or inferentially is a distinction without a difference. This is particularly true when, as here, only one logical conclusion flows from the circumstances. As Judge Holbrook observed in People v. Morris, 10 Mich. App. 526, 532, 159 N.W.2d 886, 888 (1968) (Holbrook, J., dissenting): "The prevailing opinion approves a procedure that would permit the use of suppressed evidence in court, inadmissible by direct offer, thus allowing entry through the back door that which has been refused entry through the front door.”
The majority insists Wethered compels this result. Wethered, however, did not delineate the permissible scope of the interrogating officer’s testimony. We know he could not testify to confessional acts. Wethered, at 468-71. We do not know whether he would be allowed to testify to postcontact events. We do not know, for example, whether he could testify as Mr. Gonzalez did in this case:
As I approached Mr. Wethered’s vehicle, I had nothing in my hand. I contacted Mr. Wethered and only Mr. Wethered. Shortly after making contact, I had hashish in my hand.
This is the acid test. If this hypothetical testimony is authorized by Wethered, then the majority is correct and I stand corrected.
The reader will observe that the majority and dissent share a notable feature in common: neither cites a single authority even remotely on point factually. This is not for lack of diligent research. It is because there is none. We should recognize that Wethered does not compel today’s result, that we are dealing with a question of first impression, and that the majority opinion represents a significant extension of existing law.
*129Washington had an exclusionary rule in place long before the states were required to, and the underpinning of the rule is plain and direct. "[T]he state may not use, for its own profit, evidence that has been obtained in violation of law.” State v. Gunkel, 188 Wash. 528, 534, 63 P.2d 376 (1936). It now seems the State may profit from its agent’s wrongdoing by focusing not on the evidence and how it was obtained, but on the purpose for which it is offered. The majority opinion sends a message to law enforcement that a failure to give Miranda warnings results in no more than a minor inconvenience along the road to conviction. I would prefer to send the message, "When in doubt, Mirandize.”