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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 13-CF-1423

              PATRICK BROOM A/K/A PATRICK BROWN, APPELLANT,

                                        V.

                           UNITED STATES, APPELLEE.

                         Appeal from the Superior Court
                          of the District of Columbia
                                (CF2-13790-12)

                         (Hon. Stuart Nash, Trial Judge)


(Argued January 21, 2015                                   Decided June 18, 2015)

      Ian A. Williams for appellant.

      Christopher Howland, Assistant United States Attorney, for appellee.
Ronald C. Machen Jr., United States Attorney at the time the brief was filed, and
Elizabeth Trosman, Suzanne Grealy Curt, Christian Natiello, and John Cummings,
Assistant United States Attorneys, were on the brief for appellee.

      Before BLACKBURNE-RIGSBY and MCLEESE, Associate Judges, and FERREN,
Senior Judge.

      MCLEESE, Associate Judge:        Appellant Patrick Broom challenges his

convictions for possession of an unregistered firearm and unlawful possession of a

firearm.   We reverse, because Mr. Broom’s convictions rest on evidence of
                                        2

statements he made to the police after being subjected to custodial interrogation in

violation of the requirements of Miranda v. Arizona, 384 U.S. 436 (1966).



                                            I.



      After holding a pretrial hearing on Mr. Broom’s motion to suppress

evidence, the trial court denied the motion in part and granted it in part. Viewed in

the light most favorable to the trial court’s suppression ruling, the evidence at the

hearing was as follows. On August 7, 2012, Metropolitan Police Department

Officers Donte Allen and Arthur Kimball went to an apartment building at 5044 C

Street, SE, in response to a complaint about destruction of property. The property

manager of the building told the officers that he had noticed a bullet hole while

renovating apartment 11. When the officers went into that apartment, they saw a

bullet hole in the wall between that apartment and apartment 12, which was next

door. Based on the location of the bullet in the wall and the characteristics of the

holes made by the bullet, the officers concluded that the bullet had come from

apartment 12. At the time, the officers did not know when the bullet holes had

been made.
                                        3

      The officers went over and knocked on the door of apartment 12. Ms.

Shawnta Hagans, who lived in apartment 12, opened the door. After explaining

the situation to Ms. Hagans, the officers asked if they could discuss the matter in

private. After Ms. Hagans gave the officers permission, the officers entered the

apartment. Mr. Broom was present in the apartment but stated that he did not live

there. Ms. Hagans’s child was also in the apartment. The record does not indicate

the child’s age, but the child was referred to at trial as a baby. As soon as the

officers entered the apartment, Officer Kimball saw a bullet hole in the wall. The

officers immediately handcuffed Mr. Broom and Ms. Hagans. The officers told

Mr. Broom and Ms. Hagans that they were not under arrest and were being

handcuffed for the officers’ safety. Mr. Broom and Ms. Hagans were not free to

leave at that point. After the officers said that they believed that a firearm was in

the apartment, Mr. Broom and Ms. Hagans both denied knowledge of a firearm in

the apartment.



      At that point, Ms. Hagans’s child started crying, so the officers removed Ms.

Hagans’s handcuffs to permit Ms. Hagans to tend to her child. The officers then

told Mr. Broom and Ms. Hagans that if there was a firearm inside the apartment,

both Mr. Broom and Ms. Hagans could be placed under arrest and the child would

be sent to Child and Family Services. According to Officer Allen, this statement
                                         4

was not a threat but rather was advice to Mr. Broom and Ms. Hagans about what

would happen if they were not honest. Ms. Hagans started crying and pleading

with Mr. Broom to tell the officers where the weapon was. Mr. Broom said he

would be honest with the officers, got up off the couch, motioned with his head

toward the kitchen, and indicated that the firearm was in the kitchen. Mr. Broom

then walked over to the kitchen, escorted by Officer Allen, who was holding Mr.

Broom’s arm. After Mr. Broom motioned with his foot to a kitchen cabinet, the

officers opened the cabinet and found a firearm. Officer Kimball saw that the

firearm did not have a magazine. He asked Mr. Broom where the magazine was,

and Mr. Broom said that the magazine was in the bedroom. Ms. Hagans told

Officer Kimball that she knew where the magazine was, went with Officer Kimball

to the back bedroom, and showed Officer Kimball the magazine and additional

ammunition.



      After the officers located the firearm and ammunition, they advised Mr.

Broom that he was under arrest. Officer Allen subsequently smelled marijuana and

asked Mr. Broom where the marijuana was. Mr. Broom directed Officer Allen to a

bag of marijuana in a kitchen cabinet.
                                          5

      The officers were in the apartment for about ten minutes before Mr. Broom

directed the officers to the firearm. Mr. Broom subsequently indicated that the

firearm was his friend’s and explained how the firearm had gone off. At no point

did the officers advise Mr. Broom or Ms. Hagans of their Miranda rights. The

officers did not place Ms. Hagans under arrest on the scene, because she did not

appear to know where the firearm was located. Ms. Hagans was subsequently

charged but was not convicted at trial.




      After the suppression hearing, the United States conceded that the officers

had violated the requirements of Miranda by asking Mr. Broom about the

marijuana after Mr. Broom had been placed under arrest. The United States

therefore conceded that Mr. Broom’s statement about the marijuana, as well as the

evidence of the recovery of the marijuana, should be suppressed. But see United

States v. Patane, 542 U.S. 630 (2004) (Miranda violation requires suppression of

statements but not tangible fruits of statements). The trial court accepted that

concession and also ruled that the officers had violated the requirements of

Miranda by asking about the magazine after the firearm had been found. The trial

court therefore suppressed the statements about the magazine, as well as any

evidence about the recovery of the magazine. The trial court declined, however, to
                                         6

suppress evidence of Mr. Broom’s statements indicating the location of the

firearm, concluding that Mr. Broom was not in custody at time of the questioning

about the firearm. In support of that conclusion, the trial court found that the

statement about taking the child was not intended to coerce Mr. Broom and Ms.

Hagans to cooperate, but rather was “just stating the facts of life.”



                                          II.

      On appeal, Mr. Broom contends that he was impermissibly subjected to

custodial interrogation before he disclosed the firearm’s location. “Whether[,] on

the duly established facts, appellant was subjected to custodial interrogation

without the benefit of Miranda warnings is a question of law, which we review de

novo.” Grayton v. United States, 50 A.3d 497, 505 (D.C. 2012) (brackets and

internal quotation marks omitted). We agree that Mr. Broom was custodially

interrogated in violation of Miranda.



                                          A.



      Before interrogating a suspect in custody, the police generally must warn the

suspect “that he has a right to remain silent, that any statement he does make may

be used as evidence against him, and that he has a right to the presence of an
                                         7

attorney, either retained or appointed.”1 J.D.B. v. North Carolina, 131 S. Ct. 2394,

2401 (2011) (internal quotation marks omitted). These warnings are “designed to

ward off the inherently compelling pressures of custodial interrogation.” Howes v.

Fields, 132 S. Ct. 1181, 1188 (2012) (internal quotation marks omitted).



      A suspect is in custody when the suspect has been subjected to “a formal

arrest or restraint on freedom of movement of the degree associated with formal

arrest.” J.D.B., 131 S. Ct. at 2402 (internal quotation marks omitted).



             As used in our Miranda case law, “custody” is a term of art that
      specifies circumstances that are thought generally to present a serious
      danger of coercion. In determining whether a person is in custody in
      this sense, the initial step is to ascertain whether, in light of the
      objective circumstances of the interrogation, a reasonable person
      would have felt he or she was not at liberty to terminate the
      interrogation and leave. . . .

             Determining whether an individual’s freedom of movement was
      curtailed, however, is simply the first step in the analysis, not the last.
      Not all restraints on freedom of movement amount to custody for
      purposes of Miranda. We have declined to accord talismanic power
      to the freedom-of-movement inquiry, and have instead asked the
      additional question whether the relevant environment presents the

      1
          Compliance with this requirement is excused if the police questioning is
“reasonably prompted by a concern for the public safety.” New York v. Quarles,
467 U.S. 649, 656 (1984). Although the United States relied on that exception in
the trial court, the United States does not rely on the exception in this court. We
therefore do not address whether the questioning in this case was lawful under the
public-safety exception.
                                        8

      same inherently coercive pressures as the type of station house
      questioning at issue in Miranda. Our cases make clear that the
      freedom-of-movement test identifies only a necessary and not a
      sufficient condition for Miranda custody.

Howes, 132 S. Ct. at 1189-90 (brackets, ellipses, citations, and internal quotation

marks omitted).



      “In evaluating whether a person was in custody for Miranda purposes, the

only relevant inquiry is how a reasonable man or woman in the suspect’s position

would have understood his or her situation.” White v. United States, 68 A.3d 271,

276 (D.C. 2013) (internal quotation marks omitted). Relevant factors include the

use of handcuffs or other physical restraints on the suspect, id. at 279;

communications from the police to the suspect, such as whether the police

informed the suspect that the suspect was not under arrest and did not need to

speak with the officers, In re I.J., 906 A.2d 249, 260 (D.C. 2005); the length of the

detention or questioning, White, 68 A.3d at 283; the nature of the questioning, such

as whether it was accusatory or coercive, id. at 281; the location of the encounter,

such as whether it occurred in public or private, In re I.J., 906 A.2d at 260-61; the

nature of any display of force by the police, Bates v. United States, 51 A.3d 501,

510 (D.C. 2012); and whether the suspect was confronted with evidence of guilt,

id. at 510-11.
                                        9

                                         B.



      We turn first to whether Mr. Broom was in custody at the time of the

statements at issue. At that point, Mr. Broom was not free to leave but had not yet

been placed under formal arrest. We assume for current purposes that Mr. Broom

was at that time subject only to a lawful investigative stop pursuant to Terry v.

Ohio, 392 U.S. 1 (1968). This court has held, however, that a lawful Terry stop

may be sufficiently coercive as to give rise to custody for Miranda purposes. See,

e.g., In re I.J., 906 A.2d at 261. As we explained,



      The facts and circumstances that justify an encounter as a
      permissible Terry stop for Fourth Amendment purposes will not
      necessarily dispose of the related—but different—question of whether
      there is custody within the meaning of Miranda under the Fifth
      Amendment. With respect to the latter inquiry, the actions and words
      of the police must be evaluated in context to determine whether there
      was any show of authority or other message conveyed which would
      cause the suspect to reasonably think he or she was not free to
      terminate the questioning and leave and that his or her freedom was
      being restrained to the degree associated with a formal arrest. . . .
      When a reasonable person would believe that his or her freedom has
      been restrained as in a formal arrest, that person is in custody for Fifth
      Amendment purposes, regardless of the reasonableness of the basis
      for or scope of the interview conducted by the investigating officer, as
      measured under the Fourth Amendment.
                                       10

      Id. (citations and internal quotation marks omitted).2



      Applying these principles, we conclude that Mr. Broom was in custody for

Miranda purposes before he disclosed the firearm’s location. We rely primarily on

three circumstances.



                                         1.



      Once the officers entered Ms. Hagans’s apartment and saw the bullet hole,

they immediately asserted control over the situation by handcuffing Mr. Broom

and Ms. Hagans. Although handcuffing is not by itself dispositive of custody, “it

is recognized as a hallmark of a formal arrest.” White, 68 A.3d at 279 (internal

quotation marks omitted).     Mr. Broom argues that this court should create a

rebuttable presumption that a handcuffed suspect is in custody for Miranda

purposes. We adhere, however, to the approach in White, under which the use of

handcuffs must be considered in context but can “go a long way toward making a



      2
         In Howes, the Supreme Court stated that the “temporary and relatively
nonthreatening detention involved in a traffic stop or Terry stop does not constitute
Miranda custody.” 132 S. Ct. at 1190 (quoting Maryland v. Shatzer, 559 U.S. 98,
113 (2010)). The United States has not contended in this case that Howes or
Shatzer undermine our holding in In re I.J. We therefore do not address that issue.
                                        11

reasonable [suspect] feel as if he were at the mercy of the police and restrained to a

degree associated with formal arrest.” 68 A.3d at 280.



                                          2.



      The officers’ statements in this case “contributed materially to an

atmosphere of coercion and custody.” Bates, 51 A.3d at 511 (brackets and internal

quotation marks omitted). See generally, e.g., White, 68 A.3d at 281 (“whether the

nature and length of the officers’ questioning was accusatory or coercive factors

into the custody analysis”) (internal quotation marks omitted). After seeing the

bullet hole, the officers promptly made the accusatory statement that they believed

a firearm was in the apartment. When Mr. Broom and Ms. Hagan responded with

denials, the officers told Mr. Broom and Ms. Hagans that if there was a firearm

inside the apartment, both Mr. Broom and Ms. Hagans could be placed under arrest

and Ms. Hagans’s child would be sent to Child and Family Services. We view the

latter statement in particular as highly coercive.



      Understood naturally, the statement could be viewed as a threat to arrest

both suspects and take Ms. Hagans’s child into state custody unless one of the

suspects took responsibility for the firearm the officers believed was in the
                                       12

apartment. Officer Allen’s testimony corroborates this reading of the statement,

because Officer Allen described the statement as advising the suspects “of exactly

what will happen if they were not going to be honest” (emphasis added). Ms.

Hagans’s response to the statement further corroborates this reading, because Ms.

Hagans immediately began to cry and plead with Mr. Broom to tell the officers

where the firearm was. It is true that Officer Allen denied intending to threaten

Mr. Broom and Ms. Hagans, and the trial court found as a matter of fact that the

officers were not attempting to coerce Mr. Broom and Ms. Hagans into admitting

where the firearm was. In making that finding, however, the trial court did not

address Officer Allen’s testimony that Officer Allen was letting Mr. Broom and

Ms. Hagans know what would happen if they were not honest. That testimony

seems to reflect an intent to induce Mr. Broom or Ms. Hagans to stop denying

knowledge of the firearm. In any event, the question whether a suspect was in

custody for Miranda purposes generally turns on the objective circumstances,

rather than the officers’ intent. Yarborough v. Alvarado, 541 U.S. 652, 654 (2004)

(“The Miranda custody inquiry is an objective test . . . .”). We conclude that a

reasonable person would have viewed the reference to taking custody of Ms.

Hagans’s child to be highly coercive. See, e.g., State v. Boyle, 246 P.3d 413, at *1-

4 (Kan. Ct. App. 2011) (Table) (suspect was in custody for Miranda purposes

where no physical restraints were imposed upon suspect, but suspect was
                                      13

questioned for forty-five minutes and officers made statement that would

reasonably be understood to mean that suspect’s children would be taken into

protective custody if suspect and his fiancée did not cooperate); State v. Brown,

632 N.E.2d 970, 971-73 (Ohio Ct. App. 1993) (per curiam) (suspect was in

custody for Miranda purposes where suspect was told that if he did not attend

meeting with social worker and police officer, suspect’s stepdaughter would be

removed from home; meeting was in small private office with closed door; suspect

was told he was not under arrest and was free to leave; police officer was

physically imposing; and meeting lasted over an hour); cf. Lynumn v. Illinois, 372

U.S. 528, 529-34 (1963) (where officers told suspect that if she did not cooperate

her financial aid would be cut off and her children would be taken from her,

circumstances were compellingly coercive, and suspect’s ensuing confession was

involuntary).



      Although the parties refer to the child as also being Mr. Broom’s, it is

unclear what information the officers had on the scene on that point. We do not

view that issue as critical, however, in the circumstances of this case. There

appears to be no dispute that the officers were aware that the child was Ms.

Hagans’s. When the officers chose to suggest to Mr. Broom and Ms. Hagans that

the child would be taken into custody unless Mr. Broom and Ms. Hagans
                                       14

cooperated, the officers reasonably would have known that their statement was

likely to have a strong coercive effect on Mr. Broom, either directly if the child

was Mr. Broom’s or in any event indirectly through Ms. Hagans. In fact, the

statement had an entirely predictable effect, causing Ms. Hagans to start crying and

begging Mr. Broom to cooperate with the officers.



      As the United States points out, “[t]he sole concern of the Fifth Amendment,

on which Miranda was based, is governmental coercion.            Indeed, the Fifth

Amendment privilege is not concerned with moral and psychological pressures to

confess emanating from sources other than official coercion.”          Colorado v.

Connelly, 479 U.S. 157, 170 (1986) (citation and internal quotation marks

omitted). See also, e.g., Graham v. United States, 950 A.2d 717, 732 (D.C. 2008)

(“Only ‘state action’ implicates a defendant’s rights under Fifth Amendment.”).

Pressure applied by private parties thus often is not determinative in the Miranda

context. See, e.g., Arizona v. Mauro, 481 U.S. 520, 529 (1987) (police did not

interrogate suspect by permitting wife to speak with suspect and hoping that

suspect would make admission; suspect “was not subjected to compelling

influences, psychological ploys, or direct questioning”); Graham, 950 A.2d at 732-

35 (“[N]umerous courts have held the dictates of Miranda . . . inapplicable to

questioning of suspects in custody by private citizens acting on their own
                                       15

initiative.”; police did not interrogate suspect by permitting mother to speak with

suspect). On the other hand, it is well settled that in some circumstances the

requirements of Miranda are applicable to conduct of third parties, “in order to

prevent law enforcement officials from circumventing . . . Miranda[’s]

requirements . . . .” People v. Robledo, 832 P.2d 249, 250 (Colo. 1992).



      This court has held that, in determining whether the conduct of third parties

is attributable to the police for purposes of Miranda, we must focus on how a

reasonable person in the suspect’s position would perceive the situation. Graham,

950 A.2d at 734-35. In this case, a reasonable person in Mr. Broom’s position

would have understood that Ms. Hagans was not acting on her own initiative in

begging him to cooperate with the officers, and that, to the contrary, the officers’

coercive statement had predictably caused Ms. Hagans to join the officers in

pressuring Mr. Broom to cooperate. In these circumstances, we conclude that Ms.

Hagans’s conduct should be taken into account when determining whether Mr.

Broom’s circumstances were so coercive as to rise to the level of custody for

Miranda purposes. See United States ex rel. Doss v. Bensinger, 463 F.2d 576,

577-79 (7th Cir. 1972) (suspect was subjected to custodial interrogation where

police confronted suspect with accomplice who had confessed, and accomplice

urged suspect to show police where gun was hidden); Commonwealth v. Hamilton,
                                      16

285 A.2d 172, 173-75 (Pa. 1971) (same where police confronted suspect with

accomplice who had confessed, and accomplice accused suspect of being

triggerman in crime); cf., e.g., Graham, 950 A.2d at 735 (suggesting that

questioning by private party would be attributable to police for Miranda purposes

if “questioning was given the stamp of official authority” or if “government

officials forced the suspect to answer the private party’s questions”) (footnote

omitted); Nelson v. Fulcomer, 911 F.2d 928, 935 (3d Cir. 1990) (suspect was

subjected to custodial interrogation if suspect made statement after accomplice

acting at police direction told suspect that accomplice had confessed;

“[C]onfronting a suspect with his alleged partner in crime and the fact that the

partner confessed is precisely the kind of psychological ploy that [the Supreme

Court’s] definition of interrogation [for Miranda purposes] was designed to

prohibit.”); Wilson v. O’Leary, 895 F.2d 378, 379-81 (7th Cir. 1990) (suspect was

subjected to custodial interrogation where officer seized suspect and took suspect

to parking lot and stood by while friends and family of victim questioned suspect;

“Police may not avoid Miranda by delegating the questioning to the victims of the

crime or their relatives.”).
                                       17

                                         3.



      Before Mr. Broom directed the officers to the firearm, Ms. Hagans had

signaled to the officers that it was Mr. Broom who was responsible for the firearm.

Mr. Broom thus was aware that the officers believed there was a firearm in the

apartment and that the officers had been told that Mr. Broom knew where the

firearm was.    These circumstances would have contributed to a reasonable

conclusion that Mr. Broom was no longer merely the subject of an investigatory

detention. Cf., e.g., In re I.J., 906 A.2d at 261 (in some circumstances, “a suspect

would reasonably believe that the police intend to arrest him because the police

have evidence against him”); People v. Hoover, 620 N.E.2d 1152, 1160 (Ill. App.

Ct. 1993) (“[E]ven information from a suspect which implicates another provides

sufficient grounds for probable cause if buttressed by corroborating evidence or by

the officer’s knowledge and experience.”).



                                         4.



      We have identified three circumstances that in our view point strongly

toward the conclusion that Mr. Broom was in custody at the time he directed the

officers to the firearm: Mr. Broom was detained in handcuffs; the officers had
                                       18

made a statement that would reasonably be understood as a highly coercive threat

to take Ms. Hagans’s child into state custody, which predictably led Ms. Hagans to

cry and beg Mr. Broom to cooperate with the officers; and Mr. Broom would

reasonably have viewed Ms. Hagans’s implicit accusation as strengthening the

evidence that the officers had against Mr. Broom. We must consider the totality of

the circumstances, however. White, 68 A.3d at 276. The United States emphasizes

that the officers had advised Mr. Broom and Ms. Hagans that they were not under

arrest and were being handcuffed only for officer safety; that there was no

evidence that the officers drew weapons or acted in a threatening or aggressive

manner; and that the officers removed the handcuffs from Ms. Hagans to permit

her to care for her child. We further note that the encounter was relatively brief,

lasting only about ten minutes before Mr. Broom directed the officers to the

firearm.   We do not view these additional circumstances as outweighing the

circumstances that support the conclusion that Mr. Broom was in custody. Most

significantly, although telling a suspect that he is not under arrest is relevant to

whether the suspect has been placed in Miranda custody, making such a statement

is not dispositive. See, e.g., United States v. Turner, 761 A.2d 845, 852-53 (D.C.

2000) (suspect was in Miranda custody after police told suspect that police were

executing search warrant for suspect’s hair samples and bodily fluids, even though

police had previously informed suspect that he was not under arrest); United States
                                        19

v. Newton, 369 F.3d 659, 675-77 (2d Cir. 2004) (suspect in Miranda custody even

though suspect had been informed that he was not under arrest; “[T]elling a suspect

that he is not under arrest does not carry the same weight in determining custody

when he is in handcuffs as it does when he is unrestrained.”). As the United States

notes, we have said that a stop is unlikely to be custodial for Miranda purposes if

the suspect is told both that he is not under arrest and that he does not need to talk

to the police. See, e.g., In re I.J., 906 A.2d at 260. In the present case, however,

the officers did not tell Mr. Broom that he did not need to speak with them.



      Considering the totality of the circumstances, we conclude that Mr. Broom

was in custody before he directed the officers to the firearm.




                                         B.



      Although the United States does not dispute that the officers interrogated

Mr. Broom, the United States does argue that Mr. Broom’s incriminating

statements were not the product of the officers’ interrogation but rather were

triggered by Ms. Hagans’s conduct in crying and begging Mr. Broom to cooperate
                                       20

with the officers.   For the reasons we have already explained, however, we

conclude that Ms. Hagans’s conduct is attributable to the officers for Miranda

purposes. Mr. Broom’s incriminating statements thus are properly understood to

have been caused by the officers’ interrogation.



                                        III.



      For the foregoing reasons, we conclude that Mr. Broom’s incriminating

statements were obtained as a result of custodial interrogation in violation of the

requirements of Miranda. Evidence of those statements was therefore inadmissible

as substantive evidence of Mr. Broom’s guilt. See, e.g., Harris v. New York, 401

U.S. 222, 224 (1971). The United States has not contended that admission of

evidence of those statements was harmless. We therefore reverse the judgment and

remand for further proceedings.3


      3
         Mr. Broom raises two additional issues that we need not address on the
merits. First, Mr. Broom argues that the officers did not have adequate grounds to
conduct a Terry stop and to handcuff Mr. Broom during that Terry stop. We agree
with the United States, however, that Mr. Broom did not properly present those
issues to the trial court, instead raising other Fourth Amendment contentions. We
see no reason for reversal on this ground. See, e.g., Lowery v. United States, 3
A.3d 1169, 1177 (D.C. 2010) (“The failure to assert a particular ground in a pre-
trial suppression motion operates as a waiver of the right to challenge the
subsequent admission of evidence on that ground.”) (brackets and internal
quotation marks omitted); Smith v. United States, 561 A.2d 468, 471 (D.C. 1989)
(reviewing waived Fourth Amendment claim for plain error). Second, Mr. Broom
                                      21



                                                   So ordered.




argues that the trial court erroneously ruled that Mr. Broom opened the door during
trial to the admission of a statement that was otherwise inadmissible under
Miranda. We see no reason to expect that this issue would recur in any retrial, and
we therefore do not address it. See, e.g., Johnson v. United States, 701 A.2d 1085,
1087 (D.C. 1997) (after court reversed on one ground, it addressed other claims
“likely to arise in a new trial”).
