           FIRST DISTRICT COURT OF APPEAL
                  STATE OF FLORIDA
                   _____________________________

                           No. 1D17-5245
                   _____________________________

XAVIER YOUNG,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                   _____________________________


On appeal from the Circuit Court for Liberty County.
Barbara K. Hobbs, Judge.

                            April 9, 2019


PER CURIAM.

     Appellant, Xavier Young, appeals his convictions and
sentences for multiple offenses, challenging the trial court’s denial
of his motion to suppress statements he made to law enforcement.
Appellant argues that his statements were unlawfully obtained in
violation of Miranda. 1 For the reasons that follow, we affirm.




    1   Miranda v. Arizona, 384 U.S. 436 (1966).
                          BACKGROUND

     Appellant was charged with felony fleeing or attempting to
elude an officer (Count 1), driving without a valid driver’s license
(Count 2), possession of cannabis (Count 3), and possession of
paraphernalia (Count 4). He sought the suppression of his alleged
statements in response to the deputy’s questions of “what
happened” and “is there anyone else in the car” on the ground that
he was subjected to custodial interrogation and had not been read
his Miranda rights. The State, on the other hand, contended that
Appellant was not subjected to custodial interrogation and the
deputy asked the questions for officer safety reasons.

     At the suppression hearing, as well as at trial, Deputy Heath
Cutshaw testified as follows. Around 2 a.m. on October 26, 2016,
while on patrol in his marked agency vehicle in a rural area with
“no lighting around,” he attempted to conduct a traffic stop on a
Chevy for a faulty headlight. When the Chevy did not stop,
Cutshaw activated his emergency siren and overhead lights.
Instead of stopping, the Chevy accelerated to over 100 miles per
hour, turned off its headlights, and swerved back and forth before
eventually crashing into a tree. When Cutshaw arrived at the
crash scene and exited his patrol vehicle, he saw Appellant “walk
out from the vehicle” and walk towards him. At that point,
Cutshaw drew his service weapon and ordered Appellant to the
ground while he remained behind his vehicle. As soon as
Appellant complied, Cutshaw asked him, without Miranda
warnings, whether there was anybody else in the car and what
happened. Cutshaw explained that he ordered Appellant to the
ground at gunpoint and posed those questions to him for officer
safety reasons because he was the only officer at the scene, he did
not know why Appellant was walking towards him and whether
there were other occupants in the car, and he could not see
everything in the dark. Appellant responded that no one was
inside the vehicle and that he had fled because he did not have a
driver’s license and there was marijuana in the center console.
Cutshaw did not ask further questions. When backup arrived
about thirty minutes later, Appellant was handcuffed, and inside
the vehicle the deputies found a marijuana grinder with residue
and some marijuana buds. Appellant was then arrested.


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     The trial court denied the motion, ruling, “I don’t find him in
custody. I think the officer did what he needed to do to protect
himself on the street. I mean, you’ve got a shadow coming towards
you after a high speed chase, he’s lucky he didn’t have a bullet in
his head.”

     At trial, Appellant testified in part that he was merely a
backseat passenger in the Chevy and that he did not answer the
deputy’s questions while held at gunpoint because he was not
advised about his Miranda rights. The jury found Appellant guilty
as charged, and the trial court adjudicated him guilty on each
count and sentenced him to eighteen months of imprisonment on
Count 1 and to time served on Counts 2 through 4. This appeal
followed.

                             ANALYSIS

     A trial court’s ruling on a motion to suppress is presumed
correct, and we must interpret the evidence and the reasonable
inferences that can be derived from it in a manner most favorable
to sustaining the trial court’s ruling. State v. Dickey, 203 So. 3d
958, 961 (Fla. 1st DCA 2016) (noting that it is the trial court’s
function to make credibility determinations and to weigh the
evidence). We defer to the trial court’s findings of fact if supported
by competent, substantial evidence, but review de novo the
application of the law to those facts. Id.

     For Miranda warnings to be required, the suspect must be
subject to in-custody interrogation. Ross v. State, 45 So. 3d 403,
414 (Fla. 2010). The determination of whether a defendant was in
custody involves a mixed question of law and fact and the following
inquiries:

         [F]irst, what were the circumstances surrounding
    the interrogation; and second, given those circumstances,
    would a reasonable person have felt he or she was not at
    liberty to terminate the interrogation and leave. Once the
    scene is set and the players' lines and actions are
    reconstructed, the court must apply an objective test to
    resolve the ultimate inquiry: was there a formal arrest or
    restraint on freedom of movement of the degree
    associated with a formal arrest.
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Id. at 414-15 (quoting Yarborough v. Alvarado, 541 U.S. 652, 663
(2004)). Courts are to consider the following four factors in making
that determination:

         (1) the manner in which police summon the suspect
    for questioning; (2) the purpose, place, and manner of the
    interrogation; (3) the extent to which the suspect is
    confronted with evidence of his or her guilt; [and] (4)
    whether the suspect is informed that he or she is free to
    leave the place of questioning.

Id. (quoting Ramirez v. State, 739 So. 2d 568, 574 (Fla. 1999)).

     However, a person who is detained based on reasonable
suspicion pursuant to Terry v. Ohio, 392 U.S. 1 (1968), is not
necessarily in custody for purposes of Miranda. Johnson v. State,
800 So. 2d 275, 279 (Fla. 1st DCA 2001) (citing Berkemer v.
McCarty, 468 U.S. 420 (1984), where the Supreme Court held that
“persons temporarily detained pursuant to [routine traffic] stops
are not ‘in custody’ for the purposes of Miranda”). Nor is an
investigatory stop automatically converted into an arrest when an
officer draws a weapon and directs the suspect to lie on the ground;
instead, “the police are entitled to take such action as is reasonable
under the circumstances.” Carroll v. State, 636 So. 2d 1316, 1318
(Fla. 1994); see also State v. K.N., 66 So. 3d 380, 385 (Fla. 5th DCA
2011); Saturnino-Boudet v. State, 682 So. 2d 188, 191 (Fla. 3d DCA
1996). Further, a traffic stop or investigatory stop is not
transformed into a custodial interrogation or formal arrest when
police ask the person if he or she has any weapons or drugs—such
inquiry is permissible. See State v. Hinman, 100 So. 3d 220, 221
(Fla. 3d DCA 2012); State v. Martissa, 18 So. 3d 49, 52 (Fla. 2d
DCA 2009); State v. Olave, 948 So. 2d 995, 996-97 (Fla. 4th DCA
2007); Hewitt v. State, 920 So. 2d 802, 805 (Fla. 5th DCA 2006); see
also Johnson, 800 So. 2d at 279 (concluding that the appellant was
not in custody for Miranda purposes where he was briefly detained
and, without Miranda warnings, asked the open-ended question,
“what happened?”).

     Here, the parties disagree about whether Appellant was in
custody at the time Deputy Cutshaw inquired of him so as to
trigger the Miranda warning requirement. Although Appellant is
correct in arguing that a reasonable person in his position would
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not have felt free to leave, he overlooks the fact that he was
detained during an undisputedly lawful investigatory stop. It is
uncontested that the deputy attempted to conduct a lawful traffic
stop and turned on his blue lights and siren. Instead of stopping,
the suspect vehicle sped up to speeds in excess of 100 miles per
hour, turned off its headlights, and swerved back and forth before
crashing into a tree. When the deputy caught up with the vehicle,
Appellant approached him from the crashed vehicle. The deputy
testified that he was the only officer at the scene, it was dark in
the area, he did not see how many occupants the car had, and he
could not clearly see the area. As such, for officer safety reasons,
he drew his weapon as Appellant was approaching him and
ordered him to the ground. Under these circumstances, the
deputy’s actions of drawing his weapon and ordering Appellant to
the ground were reasonable and did not transform the lawful
investigatory stop into a formal arrest.         The deputy then
immediately asked Appellant, “was there anybody else in the
vehicle” and “what happened.” Those questions were proper for
officer safety reasons and did not convert the investigatory stop
into custodial interrogation requiring Miranda warnings.

     Turning to the factors we must consider in determining
whether Appellant was in custody, he was not summoned for
interrogation; the questioning took place during an investigatory
stop that followed a high-speed chase, the vehicle crashing, and
Appellant approaching the deputy; at the time, the deputy did not
know what, if any, involvement Appellant had and whether there
were others around for it was dark outside; the deputy was the
only officer at the scene and was concerned for his safety; the
deputy’s actions and questions were limited to ensuring his safety
and he asked no further questions; and Appellant was not
confronted with any evidence of his guilt. 2 For the foregoing
reasons, we agree with the trial court that Appellant was not in



    2 The fact that Appellant was held at gunpoint on the ground
for nearly thirty minutes while the deputy waited for backup is
irrelevant to the determination of whether he was in custody for
purposes of Miranda because it is undisputed that the deputy
made his inquiries immediately upon ordering him to the ground.

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custody for the purposes of Miranda; as such, Deputy Cutshaw was
not required to advise him of his constitutional rights.

                         CONCLUSION

    Accordingly, we hold that the trial court properly denied the
motion to suppress and affirm Appellant’s convictions and
sentences.

    AFFIRMED.

LEWIS, WETHERELL, and WINOKUR, JJ., concur.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Andy Thomas, Public Defender, and Colleen Mullen, Assistant
Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Jennifer Moore, Assistant
Attorney General, Tallahassee, for Appellee.




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