            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT JACKSON

                            DECEMBER 1998 SESSION             FILED
STATE OF TENNESSEE,             *      C.C.A. # 02C01-9807-CC-00210

      Appellee,                 *      DYER COUNTY
                                                                April 23, 1999
VS.                             *      Hon. R. Lee Moore, Jr., Judge

TIMOTHY WALTON,                 *      (Certified Question of Law)
                                                               Cecil Crowson, Jr.
      Appellant.                *
                                                              Appellate C ourt Clerk




For Appellant:                         For Appellee:

Charles S. Kelly, Attorney             John Knox Walkup
Kelly, Millar, Strawn & Kelly          Attorney General and Reporter
P.O. Box 507
802 Troy Avenue                        Peter M. Coughlan
Dyersburg, TN 38025-0507               Assistant Attorney General
                                       425 Fifth Avenue North
                                       Cordell Hull Building, Second Floor
                                       Nashville, TN 37243-0493

                                       C. Phillip Bivens
                                       District Attorney General
                                       P.O. Box E
                                       Dyersburg, TN 38025-0220




OPINION FILED:__________________________



REVERSED AND DISMISSED



GARY R. WADE, PRESIDING JUDGE
                                       OPINION

              The defendant, Timothy Walton, was indicted for burglary, aggravated

burglary, and two counts of theft over $500.00. When the trial court overruled the

motion to suppress evidence, the defendant entered pleas of guilt to burglary and

aggravated burglary and, with the approval of the state, reserved a certified question

of law under Rule 37(b)(2)(i) of the Tennessee Rules of Criminal Procedure.



              In this appeal, the issue presented for review is whether the trial court

erred by failing to exclude evidence obtained from incriminating statements made by

the defendant after his arrest. Because the officers making the arrest failed to

provide Miranda warnings despite extended opportunities to do so, the defendant's

statements should have been excluded. We must, therefore, reverse the judgment

of the trial court and dismiss the charges against the defendant.



              The defendant complains that he was "surprised at his home by the

arrival of five law enforcement officers (one ... went to the rear of his property and,

without a warrant, allegedly found some propane heaters...), questioned on his

porch and in the yard, handcuffed and placed in the backseat of a patrol car and, in

spite of the officers' testimony to the contrary, intimidated, urged, coaxed, coerced,

questioned, and interrogated into revealing the location of other stolen property,

which he retrieved and turned over to the officers [without ever] having been advised

of his rights under Miranda...." The defendant insists that the statements he made

as a result of the custodial interrogation should have been suppressed. He argues

that it is "inconceivable that the officers ... did not ask any questions whatsoever"

and that his incriminating statements were neither voluntarily nor spontaneously

made.




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              At the suppression hearing, it was established that on May 22, 1997,

Officers Jeff Burns, Terry McCreight, and Calvin Johnson of the Dyer County

Sheriff's Department, while in the company of two federal postal inspectors, Chuck

Demont and Henry Cooper, traveled in separate vehicles to the mobile home

residence of the defendant to investigate his possible involvement in post office

burglaries. As the other officers went to the front door, Officer Burns walked into the

backyard to secure the rear of the residence. While there, he discovered a pathway

which eventually led to ten or fifteen marijuana plants. He also discovered several

propane heaters near the residence. No charges were placed against the

defendant in regard to either the marijuana plants or the propane heaters.



              Upon confronting the defendant, one of the postal inspectors advised

that he was investigating a burglary within the post office and asked the defendant

to accompany him to the sheriff's department for further questioning. Officer

McCreight, who was aware that the defendant could neither read nor write and was

of low intelligence, testified that the defendant was not under arrest and consented

to being transported to the sheriff's department. The officers handcuffed the

defendant and placed him in the backseat of an unmarked vehicle. Officer Johnson,

an investigator for the sheriff's department, accompanied the defendant and Officer

McCreight. The other officers traveled in different cars. Before entering the police

vehicle, the defendant told Officer Johnson that a man named Charles Thompson

had been "telling lies" and was out to "get him." According to Officer Johnson, the

defendant claimed that he knew that Thompson had stolen and hidden several

items and volunteered to tell the officer where to find the property.



              Officers McCreight and Johnson testified that they did not ask the

defendant any questions after he was handcuffed and placed into their vehicle. The


                                           3
officers explained that they did not administer Miranda warnings because they did

not consider him to be under arrest or otherwise in their custody. They contended

that the defendant, without any encouragement on their part, led the officers to

several areas where the officers were able to recover a computer, monitor and

keyboard, and a rifle. According to the officers, the defendant provided directions to

a point along a public road where a piece of plastic had been tied to a barbed wire

fence. The officers then allowed the defendant, who was still in handcuffs, to walk

into a ravine and take possession of the monitor, the keyboard, and computer, all of

which had been wrapped in a plastic garbage bag. From there, the officers were

directed to the home of the defendant's father and mother where a rifle, wrapped in

a pair of coveralls, had been hidden in a nearby barn. The officers determined that

a rifle matched the description of one that had been stolen from the residence of

Gene Bryson, except that it had no scope. The defendant told officers that he had

the scope at his residence. After returning to the defendant's residence, the officers

discovered not only the scope but also an electric heater and stepladder which had

been stolen during a burglary at the Dyersburg warehouse. The defendant was

employed at the warehouse.



              At the conclusion of the suppression hearing, the trial court ruled, in

pertinent part, as follows:

              The defendant was handcuffed before being transported.
              He remained in handcuffs throughout the process of
              retrieving stolen property from two different locations and
              then returning back to his house where he retrieved
              further stolen property and then back to the sheriff's
              department. Viewing this matter under the totality of the
              circumstances, the court finds that a reasonable person
              in the suspect's position would have considered himself
              deprived of freedom of movement to a degree associated
              with a formal arrest.... [Any] interrogation from the time
              the defendant was handcuffed and placed in the officer's
              vehicle would be a custodial interrogation. The court
              finds, however, that under the proof elicited at the
              suppression hearing that there is no evidence that there

                                           4
              was any interrogation of the defendant after he was
              handcuffed. The only testimony available to the court for
              consideration is the testimony of the three officers
              mentioned above.... Officer McCreight and Investigator
              Johnson testified that there was no interrogation and that
              all of the information given by the defendant was
              spontaneous and voluntary and not elicited as a result of
              any interrogation or suggestion by either officer.
              Consequently, although the ... defendant was in custody
              at the time the information was obtained, ... the
              information was given voluntarily by the defendant and
              not in response to interrogation by either officer. The
              need for formal Miranda warnings presumes that the
              statements are elicited through interrogation or
              questioning.

(Emphasis added).



              The state concedes that no waivers were obtained before the

defendant provided this information and that the defendant had not been advised of

his rights under Miranda v. Arizona, 384 U.S. 436 (1966). The state argues,

however, that the stolen goods were recovered "as a result of the defendant's own

unsolicited statements" rather than through the police interrogation.



              The Fifth Amendment to the United States Constitution provides that

"[n]o person ... shall be compelled in any criminal case to be a witness against

himself...." Article I, § 9 of the Tennessee Constitution provides that "in all criminal

prosecutions, the accused ... shall not be compelled to give evidence against

himself." See Malloy v. Hogan, 378 U.S. 1 (1964). Generally, one must

affirmatively invoke these protections. An exception is when a government agent

makes a custodial interrogation. Statements made during the course of custodial

police interrogation are inadmissible unless the state establishes that the defendant

was advised of his constitutional rights as identified in Miranda and then waived

those rights. Miranda requires that police inform the defendant as follows: (1) he

has the right to remain silent; (2) any statement may be used against him; (3) he has


                                            5
the right to the presence of an attorney; and (4) if he cannot hire an attorney, one

will be appointed prior to the interrogation, if he so desires. Miranda, 384 U.S. at

444.



              This court must examine the "totality of the circumstances" to

ascertain whether the particular defendant knowingly and voluntarily waived his

constitutional rights prior to making self-incriminating statements. State v. Bush,

942 S.W.2d 489, 500 (Tenn. 1997). Factors relevant in determining whether the

statements are voluntary include (1) the length of time between the arrest and the

confession; (2) the occurrence of intervening events between the arrest and

confession; (3) the giving of Miranda warnings; and (4) the purpose and flagrancy of

the official misconduct. Brown v. Illinois, 422 U.S. 590, 603-04 (1975); State v.

Chandler, 547 S.W.2d 918, 920 (Tenn. 1977). The overriding question, however, is

whether the behavior of law enforcement officials served to overbear the

defendant's will to resist. State v. Kelly, 603 S.W.2d 726, 728 (Tenn. 1980); see

State v. Howard, 617 S.W.2d 656, 658-59 (Tenn. Crim. App. 1981).



              Our scope of review is limited. The findings of fact made by the trial

judge at a hearing on a motion to suppress "will be upheld unless the evidence

preponderates otherwise." State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996).

Questions about witness credibility and "resolution of conflicts in the evidence are

matters entrusted to the trial judge." Id. If the "greater weight" of the evidence

supports the court's ruling, it will be upheld. Id.



              Custodial interrogation has three components: (1) that the defendant

be in custody; (2) that interrogation occur; and (3) that the interrogation be

conducted by a state agent. State v. Smith, 933 S.W.2d 450, 453 (Tenn. 1996).


                                             6
Initially, the trial court correctly determined that the defendant was in custody. The

evidence supports the conclusion that there was a sufficient restraint upon the

freedom of movement of the defendant to qualify as an arrest. The trial court

included in its findings of fact that officers believed that the defendant "might have

some marijuana plants there and might know something regarding the postal

burglaries." That marijuana had been found near his residence was communicated

to the defendant by the officers. All of this supports the trial court's conclusion that

the defendant was in custody.



              Whether the defendant may have been the focus of the officer's

investigation is not relevant to the question. The "test is whether ... a reasonable

person in the suspect's position would consider himself ... deprived of freedom of

movement to a degree associated with a formal arrest." State v. Anderson, 937

S.W.2d 851, 855 (Tenn. 1996); see Stansberry v. California, 511 U.S. 318 (1994)

(by adopting the reasonable person objective test to determine whether a defendant

was in custody, the Supreme Court abolished the "focus" factor in determining that

the officer's undisclosed, subjective view was irrelevant). In Anderson, our supreme

court ruled as follows:

              Some factors relevant to that objective assessment
              include the time and location of the interrogation; the
              duration and character of the questioning; the officer's
              tone of voice and general demeanor; the suspect's
              method of transportation to the place of questioning; the
              number of police officers present; any limitation on
              movement or other form of restraint imposed on the
              suspect during the interrogation; any interactions
              between the officer and the suspect, including the words
              spoken by the officer to the suspect, and the suspect's
              verbal or non-verbal responses; the extent to which the
              suspect is confronted with the law enforcement officer's
              suspicions of guilt or evidence of guilt; and finally, the
              extent to which the suspect is made aware that he or she
              is free to refrain from answering questions or to end the
              interview at will.



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937 S.W.2d at 855. Anderson established a totality of the circumstances test. The

factors listed are not intended to be exclusive and must be applied on a case-by-

case basis. See State v. Cooper, 912 S.W.2d 756 (Tenn. Crim. App. 1995).



               In our view, evidence in the record preponderates against the trial

court's finding that there was no interrogation after the defendant was handcuffed

and placed under arrest. There are several reasons for our reaching a different

conclusion from that reached by the trial judge. Initially, the officer's intent was to

investigate one or more burglaries. Acting on a tip provided by an informant, five

officers were involved in the investigation. Four confronted the defendant at the

front door of his residence while a fifth secured the rear of the residence. The

officers involved, who expressed their intention to question the defendant about the

crimes, found several marijuana plants and propane tanks which they believed had

been stolen. The defendant was confronted by officers with this additional

information, handcuffed, and placed inside a vehicle driven by Officer McCreight.

Afterward, the defendant led two of the officers to three different locations and

provided them with evidence which indicated that he had participated in several

crimes. While blaming a Charles Thompson for the misconduct and perhaps hoping

for lenient treatment, the defendant provided the officers all they needed for these

convictions.



               Although the officers generally asserted that the defendant

spontaneously volunteered the information, Officer Johnson did acknowledge asking

the defendant to show him where the stolen goods were. For example, when the

rifle was recovered, Officer Johnson recalled that the officers asked the defendant if

"there was anything else to go to this...." Any such inquiry would qualify as an




                                            8
interrogation. So would a request for driving directions to a place where stolen

property was hidden.



             Despite several obvious opportunities to do so, the officers never

administered the required Miranda warnings, a widely-recognized prerequisite for a

custodial interrogation. Officer McCreight drove the vehicle throughout the course of

the search for stolen goods. Officers acknowledged that the defendant was illiterate

and of limited intelligence. There was testimony at the suppression hearing by

Officer Burns that Charles Thompson or Billy McNeely, co-defendants in this case,

had provided information that had led to the investigation of the defendant. Before

their arrival at the scene, officers were aware that the defendant "had some of the

goods" and "disposed of some of it." Officer Burns conceded that he had the

opportunity to obtain a search warrant but explained that the real purpose of the visit

was for the federal officers "to question him about another incident." After the

lengthy search for the goods, the officers questioned the defendant at the jail. Even

then, the defendant had not been provided with the Miranda warnings.



             Furthermore, the officers took a total of three vehicles to the

defendant's premises. They indicated a subjective view that the defendant was not

under arrest even after he was handcuffed and placed inside the officer's vehicle.

While Officer McCreight denied questioning the defendant, he acknowledged that

the defendant "told us where we needed to go." The defendant walked only about

thirty feet from the police vehicle into the ravine and was still handcuffed when he

recovered the garbage bag with the stolen items. He remained in handcuffs when

taken to his parents' residence. Upon their eventual return to the police station,

Officer McCreight checked with other agencies to determine whether the returned




                                           9
items had been stolen. One exchange between the defense attorney and Officer

McCreight during the suppression hearing was as follows:

             Q.     You went from fetching ... the computer goods to
             his parents' home to an outbuilding where he graciously
             dug out a rifle for you. Still handcuffed at this time?

             A.     Yes, sir.

             Q.     Still free to go though.

             A.     Yes, sir.

             Q.     Still not under arrest.

             A.    After retrieving goods from the ravine and the
             defendant's parents' residence, they returned to the
             defendant's residence where he led them to a rifle scope,
             an electric heater, and a stepladder.

Even then, Officer McCreight described the defendant as "not under arrest and still

free to go." The officer testified that had the defendant demanded the removal of

the handcuffs or his outright release, he would have done so. Officers arrived at the

defendant's residence in mid-morning and, although not discernible from the record,

obviously took a considerable amount of time to complete their travels.



              The greater weight of the evidence does not support the conclusions

made by the trial court that the statements were admissible because they were

spontaneously made. In our view, the officers' subjective view that the defendant

was not in custody lacked any plausible foundation. Because the defendant was not

"free to go," the officers had a duty to advise of the rights guaranteed in the Miranda

decision. Despite a lengthy opportunity to have done so, the officers chose to rely

upon the defendant to give more and more incriminating information. There was at

least a limited amount of questions as to the whereabouts of the stolen goods and

how to get there. Moreover, the circumstances of the detention called for an

explanation. The purpose of the visit to the defendant's residence, the number of

officers and police vehicles involved, the limitation on the defendant's movement,

                                          10
the method of transportation, the duration and character of his detention as the

stolen goods were being produced, and the extent to which the defendant was

confronted with suspicions of guilt are circumstances which suggested not only an

arrest but also a custodial expedition for incriminating evidence.



              Although Tennessee appellate courts have not addressed the issue in

depth, the United States Supreme Court has held that an interrogation is not limited

to formal questioning but may include the functional equivalent of formal

questioning. Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980). This is one of

those situations. Interrogation "refers not only to express questioning, but also to

any words or actions on the part of the police ... that the police should know are

reasonably likely to elicit an incriminating response from the suspect." Id. at 301.

The Supreme Court continued, "A practice that the police should know is reasonably

likely to evoke an incriminating response from a suspect thus amounts to

interrogation." Id. See also Arizona v. Mauro, 481 U.S. 520 (1987).

              In Mauro, the high court commented as follows:

              In deciding whether particular police conduct is
              interrogation, we must remember the purpose behind our
              decision[] in Miranda ... : preventing government officials
              from using the coercive nature of confinement to extract
              confessions that would not be given in an unrestrained
              environment.

481 U.S. at 529-30. In our assessment, the "coercive nature" of the arrest produced

the incriminating information. The greater weight of the evidence established that.



              The trial court's analysis focused on the voluntary nature of the

statements. While the statements may have been voluntary, there were not made

by the defendant with the full knowledge of his rights. Had the officers taken the

time to properly advise the defendant of his rights, the fruits of their interrogation

would have been admissible as evidence. Because of their failure to do so and the

                                            11
particular nature of their interrogation, the circumstances require suppression.

Accordingly, the judgment is reversed, the evidence suppressed, and the charges

dismissed.



                                         ________________________________
                                         Gary R. Wade, Presiding Judge

CONCUR:



_____________________________
Thomas T. W oodall, Judge



_____________________________
John Everett Williams, Judge




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