UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.                                                                   No. 96-4876

TONY LEONG,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Alexander Williams Jr., District Judge.
(CR-96-272)

Argued: May 5, 1997

Decided: June 26, 1997

Before WILKINS, Circuit Judge,
Joseph F. ANDERSON, Jr., United States District Judge for the
District of South Carolina, sitting by designation,
and TRAXLER, United States District Judge for the
District of South Carolina, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Hollis Raphael Weisman, Assistant United States Attor-
ney, Hyattsville, Maryland, for Appellant. John Chamble, Assistant
Federal Public Defender, Greenbelt, Maryland, for Appellee. ON
BRIEF: Lynne A. Battaglia, United States Attorney, Hyattsville,
Maryland, for Appellant. James K. Bredar, Federal Public Defender,
Lauren E. Case, Staff Attorney, Greenbelt, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellee Tony Leong ("Leong") was indicted for being a felon in
possession of a firearm in violation of 18 U.S.C.A.§ 922(g) (West
Supp. 1997). Prior to trial, Leong moved to suppress his statement
admitting ownership of the firearm on the ground that the statement
had been made in violation of Miranda v. Arizona , 384 U.S. 436
(1966). The district court granted the motion to suppress and the Gov-
ernment appealed pursuant to 18 U.S.C.A. § 3731 (West 1985). We
affirm.

I.

On June 1, 1996 at approximately 3:00 a.m., United States Park
Police Officer Matthew Nichols ("Nichols") observed a vehicle
speeding on Maryland Route 197, a two-lane highway just off the
Baltimore-Washington Parkway. Nichols activated his emergency
equipment and the vehicle pulled to the side of the road. According
to Nichols, the area where the stop occurred was dark, heavily
wooded, and fairly isolated. Once the vehicle was stopped, Nichols
approached it, asked the driver for his license and registration, and
issued the driver a warning citation for speeding. While speaking with
the driver, Nichols noticed an odor of alcohol coming from inside the
vehicle, which contained three additional passengers, including
Leong. Nichols asked the driver if he had consumed any alcohol and
whether alcohol was in the vehicle. The driver denied both inquiries,
but stated that some of his passengers may have been drinking alcohol
earlier. Upon further questioning, Nichols determined that the driver
and all passengers were under 21 years of age.

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Nichols asked if he could search the vehicle and the driver con-
sented. The driver and all passengers then exited the vehicle and
walked to its rear at Nichols' request. During the ensuing search,
Nichols discovered a handgun in a plastic holster on the floor behind
the driver's seat. According to Nichols' testimony, no one was free
to leave the scene once he found the firearm. Nichols retrieved the
firearm, walked to the rear of the vehicle, and ordered all four individ-
uals to squat and put their hands above their heads. Nichols then
asked Leong and his companions who owned the firearm, but no one
answered. After a few moments, the driver became somewhat dis-
traught and also asked the others who owned the firearm. When no
one responded, Nichols testified, he advised Leong and the others that
they were "all going to be placed under arrest" until he could deter-
mine who owned the firearm. Although he did not read them their
Miranda rights, Nichols testified he again asked who owned the fire-
arm, at which point Leong confessed his ownership.

On July 15, 1996, the grand jury for the District of Maryland
returned an indictment charging Leong with being a felon in posses-
sion of a firearm. See 18 U.S.C.A. § 922(g) (West Supp. 1997).
Leong filed a motion to suppress his statement admitting ownership
of the firearm found in the vehicle. According to Leong, suppression
of the statement was required because the statement was made after
he was in custody, in response to interrogation by Nichols, but with-
out his having been given the benefit of Miranda warnings. Con-
versely, the Government asserted Leong was not in custody at the
time he made the statement and, therefore, Miranda warnings were
not required. At the suppression hearing, Nichols was the only wit-
ness called to testify. The district court ruled that Leong was in cus-
tody and suppressed the statement. The Government appealed.

II.

It is well established that persons subjected to custodial interroga-
tion are entitled to the procedural safeguards prescribed by Miranda
v. Arizona, 384 U.S. 436 (1966). See Stansbury v. California, 511
U.S. 318, 322 (1994) (per curiam). In Miranda , the Supreme Court
afforded protection to the Fifth Amendment privilege against com-
pelled self-incrimination "from the coercive pressures that can be
brought to bear upon a suspect in the context of custodial interroga-

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tion." Berkemer v. McCarty, 468 U.S. 420, 428 (1984). The Miranda
Court held that a suspect interrogated while in police custody "`must
be warned 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 attorney, either retained or appointed.'" Id.
at 429 (quoting Miranda, 384 U.S. at 444). Statements made by a sus-
pect during custodial interrogation are inadmissible as evidence of
guilt unless prior Miranda warnings were given. See Stansbury, 511
U.S. at 322; Berkemer, 468 U.S. at 429; United States v. Leshuk, 65
F.3d 1105, 1108 (4th Cir. 1995).

          The purposes of the safeguards prescribed by Miranda are
          to ensure that the police do not coerce or trick captive sus-
          pects into confessing, to relieve the inherently compelling
          pressures generated by the custodial setting itself, which
          work to undermine the individual's will to resist, and as
          much as possible to free courts from the task of scrutinizing
          individual cases to try to determine, after the fact, whether
          particular confessions were voluntary.

Berkemer, 468 U.S. at 433 (internal quotation marks & footnotes
omitted).

For purposes of Miranda, custodial interrogation is defined as
"`questioning initiated by law enforcement officers after a person has
been taken into custody or otherwise deprived of his freedom of
action in any significant way.'" Berkemer, 468 U.S. at 428 (quoting
Miranda, 384 U.S. at 444). A person is "in custody" if he "has been
formally arrested or if he is questioned under circumstances in which
his freedom of action is curtailed `of the degree associated with a for-
mal arrest.'" Leshuk, 65 F.3d at 1108 (quoting Stansbury, 511 U.S. at
322).

To determine if a suspect was "in custody" at the time of law
enforcement questioning, "[t]wo discrete inquiries are essential to the
determination: first, what were the circumstances surrounding the
interrogation; and second, given those circumstances, would a reason-
able person have felt he or she was not at liberty to terminate the
interrogation and leave." Thompson v. Keohane , 116 S. Ct. 457, 465
(1995) (footnote omitted). The first inquiry is a factual one and is

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reviewed for clear error. Id.; Leshuk , 65 F.3d at 1110. The latter
inquiry "calls for application of the controlling legal standard to the
historical facts. This ultimate determination . . . presents a mixed
question of law and fact qualifying for independent review."
Thompson, 116 S. Ct. at 465 (internal quotation marks omitted). The
Government does not challenge the district court's factual findings;
therefore, the only question before the court is one of law subject to
de novo review. It is undisputed that Miranda warnings were not
given to Leong until after he admitted his ownership of the firearm
and that the statement was made in response to the interrogation by
Nichols. Thus, the issue for review is whether Leong was "in custody"
for purposes of Miranda; if so, his admission was properly suppressed
by the district court.

A.

In Berkemer v. McCarty, the Supreme Court considered "whether
the roadside questioning of a motorist detained pursuant to a routine
traffic stop should be considered `custodial interrogation'" for pur-
poses of Miranda. Berkemer, 468 U.S. at 435. Although such a stop
"significantly curtails the `freedom of action' of the driver and the
passengers," id. at 436, the Court held that "persons temporarily
detained pursuant to [ordinary traffic] stops are not `in custody' for
the purposes of Miranda" due to the "noncoercive" nature of such
stops, id. at 440.

Specifically, the Court found two characteristics of routine traffic
stops that "mitigate the danger that a person questioned will be
induced `to speak where he would not otherwise do so freely.'" Id.,
468 U.S. at 437 (quoting Miranda, 384 U.S. at 467). First, unlike a
station house interrogation, the detentions are"presumptively tempo-
rary and brief." Id., 468 U.S. at 437. Second, such detentions share
the characteristics of occurring in public and of being less police
dominated, reducing the potential that police will use improper meth-
ods to elicit self-incriminating statements and diminishing the sus-
pect's fear that lack of cooperation will be met with abuse. See id. at
438-39. Such detentions, the Court held, are similar to investigative
stops pursuant to Terry v. Ohio, 392 U.S. 1 (1968). Berkemer, 468
U.S. at 439. "`[T]he person detained is not technically free to leave
while the officer pursues the investigation,'" but "Terry stops differ

                    5
from custodial interrogation in that they must last no longer than nec-
essary to verify or dispel the officer's suspicion." Leshuk, 65 F.3d at
1109 (quoting United States v. Manbeck, 744 F.2d 360, 376-77 (4th
Cir. 1984)).

The Berkemer Court, however, refused to adopt a bright-line rule
that Miranda warnings are never required during Terry stops or rou-
tine traffic stops. On the contrary, the Court specifically noted that
"the safeguards prescribed by Miranda become applicable as soon as
a suspect's freedom of action is curtailed to a`degree associated with
formal arrest,'" and "[i]f 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 pano-
ply of protections prescribed by Miranda." Berkemer, 468 U.S. at 440
(quoting California v. Beheler, 463 U.S. 1121, 1125 (1983) (per
curiam)).

"[T]he initial determination of custody depends on the objective
circumstances of the interrogation, not on the subjective views har-
bored by either the interrogating officers or the person being ques-
tioned." Stansbury, 511 U.S. at 323. Thus, "[a] policeman's unartic-
ulated plan has no bearing on the question whether a suspect was `in
custody' at a particular time; the only relevant inquiry is how a rea-
sonable man in the suspect's position would have understood his situ-
ation." Berkemer, 468 U.S. at 442. If, however, an officer's views or
beliefs are manifested to the suspect under interrogation and would
have affected how a reasonable man would have understood his situa-
tion, they become factors to consider. See Stansbury, 511 U.S. at 325;
Berkemer, 468 U.S. at 441-42. Thus, in Berkemer, the Supreme Court
determined that the suspect was not in custody during the short period
of time between his detention and arrest in part because the suspect
was not informed that his detention would be other than temporary.
Berkemer, 468 U.S. at 441-42.

B.

Whether the investigative stop had evolved into a custodial interro-
gation when Leong confessed depends upon whether all the facts and
circumstances would have led a reasonable person to believe that the
detention was not temporary and that he would not soon be free to

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leave. See Thompson, 116 S.Ct. at 465; Berkemer, 468 U.S. at 437-42.
We agree with the district court that this routine traffic stop evolved
into custodial interrogation when Leong was subjected to questioning
by Nichols after being told that he and the others were going to be
placed under arrest until Nichols found out who owned the firearm.
Under these circumstances, a reasonable person would believe that
leaving was not and would not become an option and, on the contrary,
that he was in custody. Since Leong was in custody for purposes of
Miranda at the time he was questioned and because he was not given
the proper Miranda warnings, his statement admitting ownership of
the firearm was properly suppressed by the district court.

III.

For the foregoing reasons, and under the narrow facts presented by
this case, we affirm the decision of the district court suppressing the
statement made by Leong.

AFFIRMED

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