                               Cite as 2014 Ark. App. 574

                ARKANSAS COURT OF APPEALS
                                       DIVISION I
                                      No. CR-14-77


                                                OPINION DELIVERED OCTOBER 29, 2014

WADE COLLINS                                    APPEAL FROM THE PULASKI
                              APPELLANT         COUNTY CIRCUIT COURT,
                                                SEVENTH DIVISION
                                                [NO. 60CR-2013-671]
V.
                                                HONORABLE BARRY A. SIMS,
                                                JUDGE
STATE OF ARKANSAS
                                APPELLEE        AFFIRMED



                        ROBERT J. GLADWIN, Chief Judge

       Appellant Wade Collins appeals from the Pulaski County Circuit Court’s denial of his

motions to suppress evidence filed in conjunction with his conditional plea on charges of

possession of cocaine with purpose to deliver, possession of drug paraphernalia, possession

of marijuana with purpose to deliver, and possession of firearms by a certain person, for

which he was sentenced as a habitual offender to 216 months’ imprisonment on each charge

to be served concurrently. He argues that the officers’ failure to provide Miranda warnings

prior to his custodial interrogation requires the exclusion of all statements and evidence

obtained during the search of his residence and storage units. We affirm.

       On December 6, 2012, appellant arrived at his residence while it was being searched

by several Little Rock Police Department officers pursuant to a search warrant. After

appellant approached the officers to determine what they were doing, a patrol officer asked
                                Cite as 2014 Ark. App. 574

for his name. After giving his name, but before appellant could leave, an officer said, “Hold

him.” Appellant remained on the porch, allegedly not knowing whether he was free to

leave, but without asking whether he was required to stay. Patrol officers sat with appellant

on his porch until he was questioned by Detective Mark Welborn.

        Detective Welborn had been actively investigating appellant prior to December 6,

2012, and as a result, he learned that appellant had sold cocaine and utilized a storage unit

related to the sale of this cocaine. Detective Welborn was part of the group of officers

searching the residence when appellant arrived. He wanted to search the storage units as well

and attempted to get appellant’s consent during the initial discussion. Detective Welborn

questioned appellant about the existence of a storage unit at the U-Haul facility, and

appellant confirmed his rental of a storage unit. Detective Welborn asked to search the unit;

appellant agreed, and Detective Welborn directed appellant to get into the back of a patrol

car to ride to the storage facility. Appellant was not instructed on whether he was free to

leave, and there is no indication that he was permitted to take his own car. It is undisputed

that neither Detective Welborn nor any other officer gave appellant Miranda warnings at that

time.

        Upon arriving at the U-Haul facility, appellant signed a consent form for the search

of unit 600. The unit was opened, and no contraband was found. Detective Welborn

testified that he gave appellant Miranda warnings at this time; however, the record indicates

that he failed to document these warnings in his report despite acknowledging both the

relevance and his habit of doing so.


                                             2
                                 Cite as 2014 Ark. App. 574

       Detective Welborn then instructed an assisting officer to go to the front office and

determine whether appellant had any other storage units. Officers learned of a second

storage unit, number 556, and confronted appellant about its existence. Appellant confirmed

its existence, but, according to him, he initially denied giving consent to search it. Detectives

Mark Welborn and Stephen Montgomery, however, testified that appellant consented to the

search of storage unit 556. The consent to search also included a written notation for unit

556; however, this notation was not written by Detective Welborn nor was it initialed or

signed by appellant. Appellant eventually agreed to open the unit but, according to him,

only after Detective Welborn said he would tear off the padlock of the unit if appellant did

not open it. Appellant was not told that he could voluntarily leave the storage facility, and

officers remained in close proximity to him throughout the search.

       Detectives Welborn and Montgomery testified that appellant admitted to having

marijuana and cocaine in storage unit 556 before it was opened. Upon the discovery of the

drugs, appellant was handcuffed and taken to the police station. Detective Welborn

presented appellant with written Miranda warnings at that time. Appellant denied being

given Miranda warnings at any time prior to his arrival at the station, and Detective

Welborn’s position regarding the Miranda warnings was consistent with that of Detective

Montgomery, who had assisted Detective Welborn’s and had remained within close

proximity to appellant throughout the search at the U-Haul facility.

       On review of a circuit court’s decision on a motion to suppress evidence obtained by

a warrantless search, this court makes an independent determination based upon the totality


                                               3
                                  Cite as 2014 Ark. App. 574

of the circumstances, giving respectful consideration to the findings of the circuit court.

Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003). Consistent with this standard, this court

defers to the superior position of the circuit court to determine the credibility of witnesses

and to resolve evidentiary conflicts, but resolves legal questions through an independent

determination on the totality of the circumstances. James v. State, 2012 Ark. App. 118, 390

S.W.3d 95. The circuit court is not required to believe the testimony of any witness,

certainly not the self-serving testimony of the accused. Bell v. State, 2010 Ark. App. 813, 379

S.W.3d 748. Arkansas’s appellate courts have never wavered from the longstanding rule that

it is the province of the circuit court to determine the credibility of witnesses. Welch v. State,

364 Ark. 324, 219 S.W.3d 156 (2005). The circuit court’s ruling will not be reversed unless

it is clearly erroneous. Gonder v. State, 95 Ark. App. 144, 234 S.W.3d 887 (2006). In

addition, this court may affirm an order denying a suppression motion for a reason different

from that relied upon by the court below. Kimery v. State, 63 Ark. App. 52, 973 S.W.2d 836

(1998).

       Appellant argues that the officers’ failure to provide Miranda warnings to him prior to

the custodial interrogation requires the exclusion of all statements and evidence obtained

during the search of his residence and the U-Haul facility. The Fifth Amendment to the

United States Constitution provides, in part, that “no person . . . shall be compelled in any

criminal case to be a witness against himself.”1 Accordingly, pursuant to the protections of

the Fifth Amendment, “preinterrogation warnings are required in the context of custodial


       1
          See also U.S. Const. amend. IV; Ark. Const. art. II, § 15.

                                                4
                                  Cite as 2014 Ark. App. 574

interrogations given ‘the compulsion inherent in custodial surroundings.’” Yarborough v.

Alvarado, 541 U.S. 652, 661 (2004) (quoting Miranda v. Arizona, 384 U.S. 436, 458 (1965)).

Miranda warnings, therefore, are necessary at the time of a custodial interrogation. Hall v.

State, 361 Ark. 379, 206 S.W.3d 830 (2005). In the absence of such warnings, “the [State]

may not use statements, whether exculpatory or inculpatory, stemming from the custodial

interrogation . . . .” Rhode Island v. Innis, 446 U.S. 291, 297 (1980); see also Shelton v. State,

287 Ark. 322, 699 S.W.2d 728 (1985) (holding that, once in custody, no interrogation is

allowed absent the Miranda warnings and a knowing, voluntary waiver).

       In interpreting the parameters of the term “custody,” the United States Supreme

Court has stated that

       the only relevant inquiry is how a reasonable man in the suspect’s position would
       have understood his situation. . . .

       [Stansbury explained that, “the initial determination of custody depends on the
       objective circumstances of the interrogation, not on the subjective views harbored by
       either the interrogating officers or the person being questioned.” Courts must
       examine “all of the circumstances surrounding the interrogation” and determine
       “how a reasonable person in the position of the individual being questioned would
       gauge the breadth of his or her freedom of action.”]

Yarborough, 541 U.S. at 662–63 (internal citations omitted); see also Hall, 361 Ark. at 389, 206

S.W.3d at 837. Additionally, in considering “interrogation,” the United States Supreme

Court provides as follows:

              We conclude that the Miranda safeguards come into play whenever a person
       in custody is subjected to either express questioning or its functional equivalent. That
       is to say, the term “interrogation” under Miranda refers not only to express
       questioning, but also to any words or actions on the part of the police (other than
       those normally attendant to arrest and custody) that the police should know are
       reasonably likely to elicit an incriminating response from the suspect. . . . A practice

                                                5
                                 Cite as 2014 Ark. App. 574

       that the police should know is reasonably likely to evoke an incriminating response
       from a suspect thus amounts to interrogation. But, since the police surely cannot be
       held accountable for the unforeseeable results of their words or actions, the definition
       of interrogation can extend only to words or actions on the part of police officers that
       they should have known were reasonably likely to elicit an incriminating response.

Innis, 446 U.S. at 301–02.

       A suspect’s voluntary or spontaneous statement, even though made in police custody,

is admissible against him. Arnett v. State, 353 Ark. 165, 122 S.W.3d 484 (2003) (holding that

it is irrelevant whether the statement, if in fact spontaneous, was made before or after Miranda

warnings had been issued, or whether appellant was in custody). However, a statement made

while a suspect is in custody is presumptively involuntary. Id. The State bears the burden

of proving by a preponderance of the evidence that a custodial statement was given

voluntarily and was knowingly and intelligently made. Id. Statements made by a suspect in

response to custodial interrogation are inadmissible unless the suspect is given Miranda

warnings and intelligently waives those rights. Id.

       In Shelton, supra, our supreme court reversed and remanded a conviction based on the

circuit court’s failure to grant a motion to suppress certain statements made by the defendant

during a custodial interrogation. In Shelton, an officer came to the defendant’s home and

awoke him using a P.A. system. The defendant, a minor, eventually came out of the home

and was placed in a police car. The defendant and the officer remained alone in the police

car, and the officer told the defendant of the seriousness of the crime (murder) and asked if

defendant knew anything about it or could help locate the suspects. The defendant then

stated, “We did it,” and “We were there.” Id. at 327, 699 S.W.2d at 730. In evaluating the


                                               6
                                   Cite as 2014 Ark. App. 574

totality of the circumstances, our supreme court held that the defendant was in custody and

interrogated; moreover, our supreme court held that his statements were not spontaneous.

The Shelton court reversed the circuit court’s denial of the motion to suppress because the

officer had failed to provide Miranda warnings prior to the statements. Id. at 333, 699 S.W.2d

at 734.

          Appellant claims that Detective Welborn likewise violated his constitutional rights by

failing to provide Miranda warnings at the time of appellant’s custodial interrogation.

Appellant urges that it was at the point of their initial conversation at his residence that

Detective Welborn, who was armed with the belief that appellant possessed cocaine at a

storage unit, began his interrogation. Detective Welborn questioned appellant about a

storage unit he already believed to be relevant to his investigation, which appellant maintains

Detective Welborn did to avoid the trouble of obtaining another warrant. Appellant claims

that the interrogation continued when he was asked to ride to the U-Haul facility in the back

of a patrol car. See Gorman v. State, 366 Ark. 82, 233 S.W.3d 622 (2006) (holding that

interrogation in a police car is a significant factor in finding a custodial interrogation).

          It is undisputed that neither Detective Welborn nor any other officer provided

Miranda warnings either at appellant’s residence or while escorting appellant to the U-Haul

facility in a patrol car. Appellant contends that those failures to provide Miranda warnings

during the custodial interrogation at his residence and in the patrol car violated his

constitutional right against self-incrimination and require the suppression of all statements and




                                                7
                                 Cite as 2014 Ark. App. 574

subsequent evidence obtained in the search of storage unit 556 resulting from the custodial

interrogation.

       Appellant also contends that the circuit court erred to the extent it found that he was

Mirandized at any point prior to being handcuffed and transported to the police station.

Appellant testified that he was not Mirandized at his residence or at the U-Haul facility and

that Detective Montgomery confirmed appellant’s testimony concerning an absence of

Miranda warnings at the U-Haul facility. The only contradictory evidence presented was

Detective Welborn’s testimony that he provided Miranda warnings to appellant at the U-

Haul facility, the veracity of which was undermined by his admission that he left this relevant

and routinely included information out of his report.

       We hold that under the specific facts of this case the circuit court did not clearly err

by denying appellant’s motion to suppress. Appellant’s arguments rely solely on the

allegation that he was in custody from the moment he arrived at his residence during the

execution of the search warrant on his residence. He disregards, however, the extent of his

voluntary interaction in answering the officers’ questions, providing additional information

related to the storage units, accompanying them to the storage units, consenting to the

searches, and assisting in opening the units.

       Appellant’s statements in response to officers’ questions and the subsequent search of

the storage units did not violate his constitutional rights because he did not expressly invoke

the privilege against self-incrimination in response to officers’ questions and gave his consent

to the search. Detective Welborn testified that he told appellant that he was not under arrest


                                                8
                                 Cite as 2014 Ark. App. 574

and that he was unaware that any officer might have said he should be held while at the

residence. Although Detective Welborn did not indicate that he told appellant he was free

to leave, there is also nothing in the record supporting that appellant asked or indicated to

the officers that he wanted to leave. This court has consistently held that it is the objective

circumstances that this court reviews on appeal rather than the subjective views harbored by

the parties. James, supra.

       We hold that, under these facts, the circuit court could have determined that a

reasonable person in appellant’s circumstances would believe that he was not in custody. See

Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). Although custody may occur under

circumstances in which the suspect is deprived of his freedom of movement and not only

upon formal arrest, this court must consider the totality of the circumstances as a reasonable

person would understand them to be. See James, supra.

       We note that appellant was charged as a habitual offender; accordingly, the circuit

court could reasonably infer that he had some previous knowledge about police procedures.

According to Detective Welborn, appellant was not in custody until after the contraband had

been found, and he was placed in handcuffs and formally arrested. Despite appellant’s

testimony that an officer said to “hold him” when appellant arrived at his house, Detective

Welborn testified that he was not aware that any officer had made that statement. Likewise,

appellant voluntarily accompanied the officers to the storage facility without requesting

alternative transportation. After considering the testimony concerning all of the attendant




                                              9
                                 Cite as 2014 Ark. App. 574

circumstances, the circuit court reasonably could have concluded that appellant was not in

custody.

       Because of the circuit court’s factual determination that appellant was not in custody,

appellant was not entitled to Miranda warnings prior to his arrest. See Gardner, supra

(interpreting that the argument that Miranda warnings are required whenever an investigation

has focused on a person, notwithstanding a complete absence of the compulsive aspect of

custodial interrogation, has been flatly rejected). To reiterate, this court defers to the

superior position of the circuit court to determine credibility of the witnesses and resolve

evidentiary conflicts and may reject the self-serving testimony of the accused. James, supra.

       Detective Welborn testified that he later gave Miranda warnings to appellant and went

over a consent-to-search form with him before conducting a search of his storage unit. The

circuit court ruled without explanation that appellant’s motions to suppress were denied, and

thus likely determined that appellant’s testimony was not credible. This court is not at liberty

to disturb the circuit court’s credibility determinations on appeal. Gonder, supra. We hold

that the circuit court did not clearly err by finding the testimony of Detective Welborn about

the circumstances to be more credible than that of appellant in ultimately denying his

suppression motions.

       Appellant could have told Detective Welborn that he did not want to answer any

questions, but he failed to do so. It has long been settled that the privilege against

self-incrimination “generally is not self-executing” and a witness who desires its protection

“must claim it.” Salinas v. Texas, 133 S. Ct. 2174, 2178 (2013). Despite appellant’s


                                              10
                                 Cite as 2014 Ark. App. 574

argument to the contrary, the express-invocation requirement applies even when an official

has reason to suspect that the answer to his question would incriminate the witness. Id.

       Furthermore, forfeiture of the privilege against self-incrimination need not be

knowing. See Salinas, 133 S. Ct. at 2183. Appellant did not decline to answer any of the

officers’ questions; therefore, he relinquished his right to claim the privilege. Additionally,

there is nothing in the record to show that officers prevented appellant from invoking his

right to the privilege against self-incrimination. So long as police do not deprive a witness

of the ability to voluntarily invoke the privilege, there is no Fifth Amendment violation.

Salinas, 133 S. Ct. at 2184. Because appellant did not invoke the privilege, the circuit court

did not err by concluding that appellant’s statements to police were voluntary.

       Regarding our review of appellant’s consent to search the storage units, the State has

the burden of proving by clear and positive testimony that consent to a search was freely and

voluntarily given and that there was no actual or implied duress or coercion. McIntosh v.

State, 296 Ark. 167, 753 S.W.2d 273 (1988); Ark. R. Crim. P. 11.1(b) (2012). Whether the

consent was voluntary is a question of fact to be determined from all the circumstances.

Welch, supra. The circuit court’s finding of voluntariness will not be set aside unless it is

clearly against the preponderance of the evidence. Duncan v. State, 304 Ark. 311, 802

S.W.2d 917 (1991). And, while the circuit court may take into consideration whether a

defendant knew he had the right to refuse consent in determining voluntariness, it is not a




                                              11
                                  Cite as 2014 Ark. App. 574

conclusive factor. Id. In fact, this court has specifically noted that knowledge of the right

to refuse consent to search is not a requirement to prove voluntariness of consent. Id.2

       We also find no merit in appellant’s argument that, due to the officers’ failure to give

him Miranda warnings, the contraband seized from the storage unit should have been

suppressed as “fruit of the poisonous tree.” In Oregon v. Elstad, 470 U.S. 298 (1985), the

United States Supreme Court addressed this issue, holding that the “fruit of the poisonous

tree” doctrine assumes the existence of a constitutional violation of the Fourth Amendment’s

prohibition against unreasonable search or seizure, which is different from an allegation, such

as appellant’s here, of the Fifth Amendment right against self-incrimination.

       Appellant admitted to Detective Welborn that he had a storage unit. That admission

is not an incriminating statement because renting a storage unit is not a criminal offense.

Detective Welborn asked appellant for consent to go to the storage facility and search the

unit, and appellant consented. Detective Welborn requested that appellant ride to the

storage facility in the officer’s vehicle. Appellant could have refused, or could have asked if

there were other transportation alternatives, such as having a friend drive him. The record

reflects that appellant neither objected to riding with the officer, nor requested an alternative.

Rather, he voluntarily got into the officer’s vehicle. See generally Shields v. State, 348 Ark.

7, 70 S.W.3d 392 (2002) (whether a person is required to be informed of the freedom to

leave is only one factor to be considered under the totality of the circumstances in a case



       2
      Under Ark. R. Crim. P. 11.1(c), the Arkansas Supreme Court has not extended
knock-and-talk principles beyond residences. See Welch, supra.

                                               12
                                 Cite as 2014 Ark. App. 574

where a person was handcuffed and transported to police station in police car). At the

storage facility, appellant signed a consent-to-search form and opened the initial storage unit.

There is testimony in the record before us that was deemed credible supporting that appellant

consented both to going to the storage facility with the officers and to the search of his

storage unit.

       Subsequently, and in part because of a discrepancy in the unit numbers appellant gave

Detective Welborn, Detective Welborn sent an officer to the storage-facility office to

determine if appellant had other units in the facility. Upon his return the officer stated, and

appellant verified, that he also rented unit number 556. Although disputed by appellant, the

officers’ testimony indicated that appellant also consented to the search of unit 556.

Furthermore, appellant unlocked unit 556 and volunteered information to the officers,

indicating that they would find drugs in a red cooler inside the unit. Based on appellant’s

statements and his action in unlocking the unit, the circuit court reasonably could have

concluded that appellant consented to the search and, further, could have found that

appellant’s allegation, that the officer threatened to break the lock if he did not open it, was

not credible.

       We hold that the circuit court’s denial of appellant’s motion to suppress was not

clearly erroneous because (1) testimony could support officers’ theory that appellant was not

under arrest during the investigation; (2) appellant voluntarily responded to officers’ questions

and did not object to riding to the storage facility in the police car or seek alternative




                                               13
                                Cite as 2014 Ark. App. 574

transportation; (3) appellant’s words and actions indicated that he consented to the search of

his storage units. Accordingly, we affirm

       Affirmed.

       PITTMAN and WYNNE, JJ., agree.

       Digby Law Firm, by: Bobby R. Digby II, for appellant.

       Dustin McDaniel, Att’y Gen., by: Nicana C. Sherman, Ass’t Att’y Gen., for appellee.




                                             14
