                   United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 05-4275
                                  ___________

United States of America,              *
                                       *
           Appellee,                   *
                                       * Appeal from the
     v.                                * United States District Court
                                       * for the District of Minnesota.
Edwin Martinez, Jr., also known as     *
Edwin Martinez Franco, Jr.,            *
                                       *
           Appellant.                  *
                                       *
                                  ___________

                             Submitted: June 14, 2006
                                Filed: September 11, 2006
                                 ___________

Before LOKEN, Chief Judge, BEAM, and ARNOLD, Circuit Judges.
                              ___________

BEAM, Circuit Judge.

      Edwin Martinez, Jr. appeals his conviction, following a jury verdict, and
sentence for bank robbery in violation of 18 U.S.C. sections 2113 (a) and (d). We
affirm.
I.    BACKGROUND

       The Liberty Savings Bank in St. Cloud, Minnesota was robbed on July 23,
2004, at approximately 9:20 a.m. The robber entered the bank, approached a teller,
placed a gun on the counter in front of her, and told her this was a robbery. The teller
gave the man all the money she had in her drawer. The man pulled his sleeves down
over his hands, wiped down the counter with the sleeves, folded the bills in half, and
put the wad of bills in one of his pockets. He then slowly backed away, told the teller
not to say anything, and left through the front door.

       The bank contacted the police, and the teller described the robber to them as a
black male in his early to mid-twenties, between 5'7" and 5'9" tall, wearing a gray
hooded sweatshirt and blue jeans. St. Cloud police officers Michael Lewandowski,
Jeff Atkinson, and David Missell responded. Atkinson was told to check the area
surrounding the bank, and so went to a recreational area known as Lake George, about
a half-mile from the bank. Once there, he noticed a black male matching the height
description, wearing a white tank top and blue pants, walking southbound very fast
through the park. Atkinson slowed his car to observe the man, Martinez, talking on
his cell phone while walking. Martinez looked up at Atkinson and quickly looked
down again. Atkinson noticed that Martinez's face was shiny and assumed he was
sweaty.

      Atkinson exited his car and told Martinez that he needed to talk with him.
Martinez cooperated, putting his hands behind his head. Atkinson walked up to
Martinez, took the cell phone from his hand and laid it on the ground, grabbed his
hands, and told him that he was being detained because he matched the description of
a bank robber. Atkinson then performed a pat-down to check for weapons since the
robber had used a gun. At the same time Missell, who had responded to assist
Atkinson, asked Martinez if he had any weapons on him. Martinez responded that he
possessed only a large sum of money. Atkinson felt what he knew to be a wad of cash

                                          -2-
in Martinez's pocket. At that point, Atkinson placed handcuffs on Martinez, and told
him he would be further detained. Atkinson pulled the wad of cash partly out of the
pocket to confirm it was money, and then pushed it back into the pocket. Missell then
asked Martinez where he got the cash. Martinez responded that he had just been paid
from his place of work. When Missell expressed disbelief, Martinez changed his story
to say he saw a man running in the park, and that he found the money. Atkinson then
placed Martinez in the back of the police car, read him his Miranda rights, and took
him to the bank for a show-up identification.

       Once at the bank, Atkinson placed Martinez on the sidewalk in front of the bank
toward the windows, hands behind his back and cuffed. The teller was inside the
bank. Upon seeing Martinez, she became physically shaken, and identified Martinez
as the robber. He was then arrested and taken to jail.

      Martinez was indicted on one count of bank robbery, in violation of 18 U.S.C.
sections 2113 (a) and (d). Before trial, Martinez asked the magistrate judge to
suppress (1) statements made in response to questioning from Missell about the wad
of cash in his pocket because he was not given his Miranda warnings at that time, (2)
the cash seized from his person after arrest because the officers lacked reasonable
suspicion to conduct the Terry stop in the first place, and (3) the teller's identification
of him at the bank as impermissibly suggestive. The magistrate judge denied all three
requests in the report and recommendation, which was adopted by the district court.1
Martinez was convicted and sentenced to 150 months imprisonment.




      1
       The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota, adopting the report and recommendation of the Honorable Raymond
L. Erickson, United States Magistrate Judge for the District of Minnesota.

                                           -3-
II.   DISCUSSION

      A.     Extent of Terry Stop

       Martinez first argues that his statements to the officers in the park, the money
seized from his person, and his participation in the show-up identification should be
suppressed as "fruit of the poisonous tree" because once he was handcuffed and placed
in the police car, the Terry stop turned into an arrest, for which officers had no
probable cause. The parties both focus on whether the cuffing of Martinez constituted
an arrest. We conclude that the cuffing did not convert the Terry stop into an arrest,
and even if it did, the officers had probable cause to effectuate the arrest, based on the
wad of cash discovered during the Terry frisk.

       "An investigative detention may turn into an arrest if it 'lasts for an
unreasonably long time or if officers use unreasonable force.'" United States v.
Maltais, 403 F.3d 550, 556 (8th Cir. 2005) (quoting United States v.
Navarrete-Barron, 192 F.3d 786, 790 (8th Cir.1999)). During an investigative stop,
officers should use the least intrusive means of detention and investigation reasonably
necessary to achieve the purpose of the detention. Id. During a Terry stop, officers
are authorized to take such steps as are reasonably necessary to protect their personal
safety and to maintain the status quo during the stop. Id. This court has previously
held that use of handcuffs can be a reasonable precaution during a Terry stop to
protect their safety and maintain the status quo. See, e.g. United States v. Summe, No.
05-4179, 2006 WL 1458293 (8th Cir. May 30, 2006) (unpublished) (holding that use
of cuffs to detain suspected accomplice did not constitute arrest); United States v.
Saffeels, 982 F.2d 1199, 1206 (8th Cir. 1992) (overruled on other grounds) (holding
that using cuffs on robbery suspect did not convert Terry stop into arrest); United
States v. Miller, 974 F.2d 953, 957 (8th Cir. 1992) (concluding that cuffing of
suspects during Terry stop where suspects outnumbered officers and where officers



                                           -4-
were concerned for safety was reasonably necessary to achieve purposes of Terry
stop).

       Here, the officers knew that the robbery had been accomplished by brandishing
a gun. Martinez was a close match to the description of the robber, and Atkinson
found him near the scene of the crime, acting suspiciously. The discovery of what
Atkinson immediately recognized as a wad of cash on Martinez's person reasonably
led Atkinson and Missell to believe that Martinez might be the robber, and that he
might still have the gun used to commit the crime. Placing Martinez in handcuffs was
a reasonable response to the situation in order to protect the officers' personal safety
and to maintain the status quo. As such, the use of handcuffs did not convert this
Terry stop into an arrest.

       Martinez also argues that placing him in a patrol car and transporting him back
to the bank made the stop an arrest. We do not agree. In United States v. Lego, 855
F.2d 542 (8th Cir. 1988), this court held that confining a potentially dangerous suspect
to a patrol car while checking his identification was not tantamount to an arrest.
There, the "obvious exigencies of the situation" authorized the officer to continue the
Terry stop by confining the suspect to the patrol car "until the situation stabilized and
she could determine if full custodial arrest and detention were warranted." Id. at 545.
Here, the exigencies were such that the officers could not dispel their suspicions that
had prompted the Terry stop until they transported Martinez back to the bank for the
show-up identification. In United States v. Montano-Gudino, 309 F.3d 501, 504 (8th
Cir. 2002), this court held that, given the circumstances, moving a suspect from one
location to another did not exceed the bounds of Terry because it was reasonable to
relocate the suspect for questioning.

        In Hayes v. Florida, 470 U.S. 811 (1985), the Supreme Court held that
transporting a suspect from his home to a police station for questioning goes beyond
the scope of a Terry stop and effects an arrest for which there must be probable cause.

                                          -5-
Here, the officers did not take Martinez to the police station during the Terry stop, but
moved him only to the scene of the crime to help dispel or confirm their suspicions.
Similarly, in United States v. Charley, 396 F.3d 1074, 1080 n.4, 1081 (9th Cir. 2005),
the court, relying on Montano-Gudino and cases from seven other circuits, held that
moving a suspect from the place officers found her to her own home in order to check
on her children whom she may have harmed there did not effect an arrest. Thus,
neither placing Martinez in the police car nor transporting him to the bank converted
this Terry stop into an arrest for which probable cause was required.

       Even if the stop could be considered an "arrest" following the cuffing of
Martinez, the discovery of the wad of cash on his person provided probable cause to
arrest him. See, e.g., United States v. Martin, 706 F.2d 263, 265 (8th Cir. 1983)
(finding that information officers obtained during investigatory stop "escalated the
factual basis from one permitting an investigatory stop to one warranting an arrest").
Probable cause exists when, at the time of the arrest, "the available facts and
circumstances are sufficient to warrant a person of reasonable caution to believe that
an offense was being or had been committed by the person to be arrested." United
States v. Kelly, 329 F.3d 624, 628 (8th Cir. 2003). Given the facts and circumstances
known to Atkinson and Missell at the time they discovered the wad of cash, a
reasonably cautious officer would believe that Martinez might well have committed
the bank robbery, and thus probable cause existed to arrest him then.

      B.     Nature of Questioning By Officers in Park

      Martinez also argues that his statements to the officers in the park should be
suppressed because they were made in response to custodial interrogation without the
benefit of Miranda warnings. Whether Martinez was "in custody" for purposes of
Miranda after being handcuffed during the Terry stop is a separate question from
whether that handcuffing constituted an arrest for which probable cause was required.



                                          -6-
       Miranda warnings are required only where a person's freedom has been so
restricted as to render him "in custody." United States v. LeBrun, 363 F.3d 715, 720
(8th Cir. 2004). The ultimate inquiry is whether (1) the person has been formally
arrested, or (2) the person's freedom of movement has been restrained to a degree
associated with a formal arrest. Id. "'Two discrete inquiries are essential to the
determination: first, 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.'" Id. (quoting Thompson v.
Keohane, 516 U.S. 99, 112 (1995)). "Thus, the critical inquiry is not whether the
interview took place in a coercive or police dominated environment, but rather
whether the defendant's freedom to depart was restricted in any way." Id. (internal
quotation and citation omitted). "In answering this question, we look at the totality
of the circumstances while keeping in mind that the determination is based on the
objective circumstances of the interrogation, not on the subjective views harbored by
either the interrogating officers or the person being questioned." Id. (internal
quotation and citation omitted). See also United States v. Ollie, 442 F.3d 1135, 1137
(8th Cir. 2006).

       In this case, Martinez was detained by two officers, patted down for weapons
(with none being found), and closely questioned about his possession of weapons.
Then, he was handcuffed and told he was being further detained. This occurred before
being questioned by the two officers. A reasonable person would not, considering the
totality of the circumstances, feel he was at liberty to stop the questioning and leave.
Martinez's freedom was restricted to a degree often associated with formal arrest, and
we find he was in custody at the time he was handcuffed. He was interrogated about
the wad of cash while in this custody, being asked at least twice to explain the
presence of the cash. Thus, we find that Martinez was subjected to custodial
interrogation.




                                          -7-
       The government argues that so long as the encounter remained a Terry stop, no
Miranda warnings were required. But the Supreme Court has indicated that the
analysis is not that simple. In Berkemer v. McCarty, 468 U.S. 420 (1984), the Court
looked to the circumstances involved in a traffic stop to conclude that the suspect's
freedom of action was not "curtailed to a 'degree associated with formal arrest'" as to
require Miranda warnings. Id. at 440 (quoting California v. Beheler, 463 U.S. 1121,
1125 (1983) (per curiam)). In holding that the traffic stop at issue in Beheler was akin
to a Terry stop, the Court held that, "by itself," the stop did not render him "'in
custody.'" Id. at 441. Analyzing the factual circumstances, the Court noted that the
"respondent has failed to demonstrate that, at any time between the initial stop and the
arrest, he was subjected to restraints comparable to those associated with a formal
arrest." Id. Thus, the Court looked not to the fact that the detention was a Terry stop,
but rather to the circumstances bearing on the question of custody, just as we have
done here. The Court noted that some traffic/Terry stops might involve such restraint,
necessitating Miranda warnings. "If a motorist who has been detained pursuant to a
traffic stop thereafter is subjected to treatment that renders him 'in custody' for
practical purposes, he will be entitled to the full panoply of protections prescribed by
Miranda." Id. at 440. Citing Berkemer, this court has previously implied the possible
need for Miranda warnings during a Terry stop. "[M]ost Terry stops do not trigger
the detainee's Miranda rights." United States v. Pelayo-Ruelas, 345 F.3d 589, 592
(8th Cir. 2003) (emphasis added). In this case, as we have said, Martinez was, under
the circumstances, subjected to restraint associated with formal arrest, and was
interrogated during that custody. Therefore, we follow the Supreme Court's cue and
find that he was entitled to Miranda warnings at the time he was handcuffed. Since
Miranda warnings were not given before Martinez gave conflicting accounts of how
he got the wad of cash, those statements should have been suppressed.

       Though failing to suppress the statements made in the park was error, we find
it was harmless. "An error is harmless if it does not affect substantial rights of the
defendant, and did not influence or had only a slight influence on the verdict." United

                                          -8-
States v. Davis, 449 F.3d 842, 847 (8th Cir. 2006) (internal quotations and citations
omitted).

       Martinez argues that his contradictory explanations about the cash, the cash
seized, and his participation in the show-up identification were all "fruit of the
poisonous tree" under Wong Sun v. United States, 371 U.S. 471 (1963). However,
we have found that handcuffing Martinez in the park did not convert the Terry stop
into an arrest, and that even if it did, it was supported by probable cause. Thus, any
arrest that might have allegedly occurred was not unlawful. Martinez has not shown
that the police decided to take him to the bank for the show-up identification because
he gave them contradictory statements. The Court in Wong Sun proceeded to a "fruit
of the poisonous tree" analysis because "[t]he prosecutor candidly told the trial court
that 'we wouldn't have found [the incriminating evidence] except that [the defendant]
helped us to.'" Id. at 487. In this case, the record indicates that Atkinson was
instructed to bring Martinez to the bank. We think, in this case, the identification of
Martinez by the teller at the bank was obtained at least "by means sufficiently
distinguishable" from, if not independent of, Martinez's non-Mirandized statements.
Id. at 488. The cash retrieved from Martinez was fair game for seizure, as its
discovery did not rely on his statements, and we have found that probable cause
existed for his arrest at the time of its discovery. Thus, Martinez's "fruit of the
poisonous tree" argument fails, and only his contradictory statements in the park
should have been suppressed. Given the other admissible evidence against Martinez,
we find that failure to suppress these statements did not sufficiently influence the jury
to merit our reversal, and thus was harmless error.

      C.     The Show-Up Identification

       Martinez argues that the introduction at trial of the results of the show-up
identification violated his procedural due process rights because the procedure used
was unduly suggestive and unreliable. "A crime victim's identification of the

                                          -9-
defendant is admissible unless it is based upon a pretrial confrontation between the
witness and the suspect that is both impermissibly suggestive and unreliable." United
States v. King, 148 F.3d 968, 970 (8th Cir. 1998) (internal quotation omitted). "An
identification is unreliable if its circumstances create 'a very substantial likelihood of
irreparable misidentification.'" Id. (quoting Brodnicki v. City of Omaha, 75 F.3d 1261,
1265 (8th Cir. 1996)). "Police officers need not limit themselves to station house
line-ups when an opportunity for a quick, on-the-scene identification arises. Such
identifications are essential to free innocent suspects and to inform the police if further
investigation is necessary." Id. "'[A]bsent special elements of unfairness, prompt
on-the-scene confrontations do not entail due process violations."' Id. (quoting Russell
v. United States, 408 F.2d 1280, 1284 (D.C.Cir.1969)) (alteration in original).

        Though Martinez argues that the show-up was unduly suggestive because he
was handcuffed, he had been driven to the bank in a police car, and because police
officers were present, "[n]ecessary incidents of on-the-scene identifications, such as
the suspect[] being handcuffed and in police custody, do not render the identification
procedure impermissibly suggestive." Id. "Whether such factors cast doubt on the
accuracy of a positive identification is an issue for the jury." Id. Given the facts in
this case, we do not believe the show-up identification was unduly suggestive. Even
if it was, we do not find that the circumstances created "'a very substantial likelihood
of irreparable misidentification'" because the teller's identification was reliable. Id.
(quoting Brodnicki v. City of Omaha, 75 F.3d 1261, 1265 (8th Cir. 1996)). "Given
[the teller's] opportunity to clearly observe the robber[], [her] direct dealing with him
at the time of the offense, [her] prior description of the robber[], the certainty of his
identification, and the short time between the robbery and his identification," the
show-up identification was reliable. United States v. Woody, 690 F.2d 678, 680 (8th
Cir. 1982) (holding that the show-up identification was reliable in spite of being
unduly suggestive, and thus permissible). Therefore, admission at trial of the results
of the show-up identification, as well as the subsequent identification of Martinez by



                                           -10-
the teller at trial, did not violate Martinez's procedural due process rights. King, 148
F.3d at 970.

III.   CONCLUSION

       Finding no other non-frivolous issues, we affirm.

LOKEN, Chief Judge, dissenting in part and concurring in the judgment.

       I respectfully dissent from the conclusion in Part II.B. of the court’s opinion
that Officer David Missell violated Edwin Martinez’s Fifth Amendment rights by
failing to give Miranda warnings before asking Martinez to explain the “wad of cash”
found in his pocket shortly after an armed bank robbery. I agree that the district
court’s suppression error, if any, was harmless, and with the remainder of the court’s
opinion. Therefore, I concur in the decision to affirm.

       Miranda warnings are required before the police engage in “custodial
interrogation,” which the Supreme Court defined in Miranda as whenever “a person
has been taken into custody or otherwise deprived of his freedom of action in any
significant way.” Miranda v. Arizona, 384 U.S. 436, 444 (1966) (emphasis added).
Later, the Court decided in Terry v. Ohio, 392 U.S. 1, 30 (1968), and cases applying
Terry, that the Fourth Amendment is not violated when a police officer with
reasonable suspicion that criminal activity is afoot briefly detains (seizes) a suspect
while making a reasonable investigation to confirm or dispel the officer’s suspicion.
The investigation normally includes brief questioning “reasonably related in scope to
the justification” for the stop. United States v. Brignoni-Ponce, 422 U.S. 873, 881
(1975). The apparent overlap of the broad definition of custody in Miranda and the
detention inherent in a Terry stop inevitably raised the question whether a Terry stop
is a significant deprivation of the suspect’s freedom of action so that Miranda
warnings are required before any questioning. An affirmative answer to this question

                                         -11-
would have undermined both the practical and the constitutional underpinnings of the
Court’s 8-1 decision in Terry: “if the investigative stop is sustainable at all,
constitutional rights are not necessarily violated if pertinent questions are asked and
the person is restrained briefly in the process.” 392 U.S. at 35 (White, J., concurring).

       Not surprisingly, the Court declined to make Miranda warnings mandatory
during Terry stops. In Berkemer v. McCarty, 468 U.S. 420, 441 (1984), the Court
held that a motorist stopped and questioned for a routine traffic offense was not in
custody for Miranda purposes until he was later arrested for driving while intoxicated.
In explaining its decision, the Court expressly equated traffic stops and Terry stops
and observed that the nonthreatening and noncoercive nature of both “explains the
absence of any suggestion in our opinions that Terry stops are subject to the dictates
of Miranda.” Then, reiterating the test it had articulated in post-Miranda cases, the
Court cautioned that Miranda warnings are required if, at any point during a Terry
stop, “a suspect’s freedom of action is curtailed to a degree associated with formal
arrest.” Berkemer, 468 U.S. at 440. The Court acknowledged that “the doctrine just
recounted will mean that the police and lower courts will continue occasionally to
have difficulty deciding exactly when a suspect has been taken into custody [for
Miranda purposes].” Id. at 441. We have construed Berkemer to mean that “most
Terry stops do not trigger the detainee’s Miranda rights.” United States v. Pelayo-
Ruelas, 345 F.3d 589, 592 (8th Cir. 2003). But this is one of those difficult cases.

       In my view, the court’s opinion errs by relying heavily on two station-house
questioning cases -- United States v. LeBrun 363 F.3d 715 (8th Cir. 2004), and
Thompson v. Keohane, 516 U.S. 99 (1995). In such cases, the dominant inquiry is
whether a suspect who agreed to be questioned was still free to leave when he made
incriminating statements. By contrast, during a Terry non-consensual stop, “[o]ne is
not free to leave . . . until the completion of a reasonably brief investigation, which
may include limited questioning.” Pelayo-Ruelas, 345 F.3d at 592. Thus, it is
contrary to Berkemer for the court to frame the Miranda custody question as being

                                          -12-
whether a reasonable person would “feel he was at liberty to stop the questioning and
leave,” supra at p.7, because that framing compels the conclusion that all questioning
during lawful Terry stops must be preceded by Miranda warnings.

        Applying Terry, the court concludes -- correctly, in my view -- that Officers
Missell and Jeff Atkinson acted reasonably when they stopped Martinez, a bank
robbery suspect; frisked and handcuffed him in the interest of officer safety and to
prevent flight; took a quick look at a wad of cash in his pants that might be
contraband; did not seize the cash; placed Martinez in the patrol car and gave him
Miranda warnings; and then took him some distance for a show-up before the bank
teller victim. In the midst of this relatively coercive Terry stop, justified by the violent
crime that had just occurred, Missell asked Martinez to explain how a suspicious wad
of cash came to be in his pocket soon after an armed bank robbery.
        In my view, the critical fact for Miranda purposes is that the questions were
entirely consistent with the proper scope and purpose of a reasonable Terry stop. To
be sure, handcuffing is an additional restraint on the suspect’s freedom of action, a
restraint that often accompanies formal arrests. But in a Terry stop, handcuffing may
signal that a formal arrest is imminent, or it may be an action reasonably limited to
officer safety concerns or the risk of flight while the officers attempt to quickly
confirm or dispel their suspicions. In distinguishing the two situations, I consider the
nature of the questioning critical. If Missell had interrogated the handcuffed Martinez
about his actions earlier that day, or the details of the robbery, or other crimes under
investigation, that would be custodial interrogation consistent with a formal arrest, and
Miranda warnings would be required. But brief questioning consistent with the
limited purpose of the Terry stop did not require such warnings, even though the
suspect was (reasonably) handcuffed. This distinction is consistent with cases holding
that a Terry stop that includes handcuffing followed by brief questioning related to the
purpose of the stop does not violate the suspect’s Fourth or Fifth Amendment rights.
See United States v. Cervantes-Flores, 421 F.3d 825, 829-30 (9th Cir. 2005), cert.
denied, 126 S. Ct. 1911 (2006); United States v. Fornia-Castillo, 408 F.3d 52, 63-65

                                           -13-
(1st Cir. 2005); United States v. Miller, 974 F.2d 953, 956-57 (8th Cir. 1992); United
States v. Bautista, 684 F.2d 1286, 1292 (9th Cir. 1982), cert. denied, 459 U.S. 1211
(1983). The court cites no factually similar case to the contrary.

        “Fidelity to the doctrine announced in Miranda requires that it be enforced
strictly, but only in those types of situations in which the concerns that powered the
decision are implicated.” Berkemer, 468 U.S. at 437. I conclude that Martinez was
not in custody for Miranda purposes when he gave inconsistent and therefore
incriminating answers to questions that were consistent with a lawful Terry stop.

                       ______________________________




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