Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.

             DISTRICT OF COLUMBIA COURT OF APPEALS

                                No. 12-CF-2063

                       FREDRICK E. MORTON, APPELLANT,

                                       V.

                           UNITED STATES, APPELLEE.

                     Appeal from the Superior Court of the
                             District of Columbia
                               (CF2-2583-12)

                       (Hon. Lynn Leibovitz, Trial Judge)

(Argued November 19, 2014                         Decided October 29, 2015)

     Justin Murray, Public Defender Service, with whom James Klein, Public
Defender Service, was on the brief, for appellant.

      Anne Y. Park, Assistant United States Attorney, with whom Ronald C.
Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth
Trosman, John P. Mannarino, and Thomas A. Bednar, Assistant United States
Attorneys, were on the brief, for appellee.

      Before WASHINGTON, Chief Judge, BLACKBURNE-RIGSBY, Associate Judge,
and FERREN, Senior Judge.

      Opinion for the court by Chief Judge WASHINGTON.

      Concurring opinion by Senior Judge FERREN at page 20.


      WASHINGTON, Chief Judge: Appellant Fredrick E. Morton (“Mr. Morton”)
                                         2

was charged with a series of crimes1 in connection with a burglary in which he

allegedly broke into an apartment and stole several items including a wallet, credit

cards, and a set of car keys which were used to steal a car parked nearby. Before

trial, Mr. Morton filed a motion to suppress certain incriminating statements he

made immediately prior to his formal arrest, arguing that he was handcuffed and

interrogated by police without the protection of Miranda2 warnings in violation of

his Fifth Amendment rights. The trial court denied the motion, and the government

used appellant‟s non-Mirandized statements to connect him to the stolen items.

The jury acquitted appellant on all charges except for one felony receiving stolen

property (RSP) count predicated on the stolen car, and one misdemeanor RSP count

predicated on the wallet and credit cards. On appeal, Mr. Morton asserts that the

trial court erred in concluding he was not in custody for purposes of Miranda at the

time he made incriminating statements. Mr. Morton argues he was in Miranda

custody, given that he was stopped on the suspicion of drug activity, chased by

police, apprehended, handcuffed, and subsequently questioned about circumstances

concerning his involvement in a crime. We conclude that, based on the totality of

the circumstances in this case, a reasonable person, in appellant‟s position, would

      1
       Mr. Morton was charged with second-degree burglary, first-degree theft,
unauthorized use of a motor vehicle, credit card fraud, receiving stolen property
(“RSP”) predicated on a wallet and credit cards and RSP predicated on a vehicle.
      2
          Miranda v. Arizona, 384 U.S. 436 (1966).
                                          3

not have felt free to leave and terminate police questioning and was subject to a

restraint on his freedom of movement tantamount to formal arrest. Because Mr.

Morton was in Miranda custody during the police questioning, he was entitled to

Fifth Amendment protections before the officers questioned him, and therefore, the

trial court erred in denying the motion to suppress his incriminating statements.



                          I. Facts and Procedural History


      On June 28, 2009, at approximately 8:50 a.m., Metropolitan Police

Department Officers Randy Washington and Travis Gray were on patrol in an area

in Northeast D.C. known for drug activity when they observed three men, including

Mr. Morton, standing together in an alleyway near a park. Officer Washington

testified that Mr. Morton appeared to be engaging in a “hand-to-hand” transaction.

Officer Washington did not see objects exchanged, but he suspected drug activity

and instructed Officer Gray to pull over to investigate. The officers got out of their

vehicle, approached the group, asked what they were doing, and requested to see

identification. Two of the men showed identification, but Mr. Morton patted his

pockets as if to look for identification and fled. Officer Gray pursued appellant on

foot, and after briefly staying with the other two men, Officer Washington followed

his partner. As Mr. Morton was running, Officer Washington saw Mr. Morton
                                          4

throw a small object to the ground. Officer Washington went to the area where he

had seen the object land and found a wallet, which contained various cards and

identification.



      Meanwhile, Officer Gray stopped appellant approximately 200 yards away

from where the officers had first seen the men. Officer Washington went to where

his partner had appellant detained. Mr. Morton was placed in handcuffs, which

Officer Washington testified was for the purpose of Mr. Morton‟s and the officers‟

safety. Neither of the officers brandished their weapons. Officer Washington

testified that Mr. Morton “was not under arrest, but was detained.” After appellant

was handcuffed, Officer Gray informed appellant that he was not under arrest, but

stated, “We need to know why you ran. Why would you run if you didn‟t do

anything?” Appellant responded that he ran “because [he] had a needle” on him.

The officers then asked Mr. Morton‟s name, and he responded that it was “Michael

Morton” and provided a date of birth. After the officers ran a check on the name

and it did not meet appellant‟s description, the officers engaged in a “back and forth”

with Mr. Morton concerning his identity, and Mr. Morton ultimately provided his

true name. While waiting for the dispatcher to obtain Mr. Morton‟s true name,

Officer Washington began to question Mr. Morton about the wallet he saw him
                                          5

throw while being pursued.3 Specifically, Officer Washington asked, “What was

up with the wallet?”       Mr. Morton responded, “What wallet?” and Officer

Washington replied, “The wallet that you threw. It‟s right behind you. I saw you

throw a wallet. What‟s up with the wallet?” Appellant responded, “[O]h, I found

it on the metro.” The officers then received the results of the name check from the

dispatcher, who informed the officers of a warrant for Mr. Morton‟s arrest (for

reasons unrelated to this case). At that point, Mr. Morton was placed under formal

arrest and searched. Among the items the police found on him were a set of car

keys, a Safeway receipt, and a business card for a pawn shop.



      Officer Washington testified that later that day, after he arrested Mr. Morton,

he took the keys and wallet and drove to the address listed on the identification

contained in the wallet.    The resident of that address, Kwesi Cobbina (“Mr.

Cobbina”), informed Officer Washington that his apartment had been burglarized

recently, that his wallet and keys had been stolen during the burglary along with his

car, and that a credit card had been fraudulently used at a Safeway store. Officer

      3
         There is no finding, and the record does not explicitly state at what point
Officer Washington looked into the wallet and discovered that it contained
identification belonging to a person other than Mr. Morton, but it can be inferred
from the transcript that the trial court and defense counsel believed that the officer
had done so before he questioned Mr. Morton about his identity and about the wallet
during his detention. Defense counsel acknowledged, however, that “it‟s unclear to
me” what the officers knew when questioning began.
                                          6

Washington returned the wallet and keys to the owner, and did not preserve them as

evidence or take photos of them. The next day, Officer Washington returned to the

area of Mr. Morton‟s arrest, where he found Mr. Cobbina‟s car, containing a needle

wrapper, which Mr. Cobbina stated was not in the car before the theft.



      On February 8, 2012, appellant was charged with second-degree burglary,4

first-degree theft, 5 unauthorized use of a vehicle (“UUV”), 6 credit card fraud, 7

misdemeanor receiving stolen property predicated on a wallet and credit cards

(RSP),8 and felony RSP predicated on a vehicle.9 Before trial, appellant filed a

motion to suppress his statements under Miranda, and after a hearing, the trial judge

denied the appellant‟s motion based on her conclusion that Mr. Morton was not in

custody for purposes of Miranda at the time he was interrogated by police. The

government made use of appellant‟s incriminating statements to show that appellant

possessed Mr. Cobbina‟s property and that he did so with knowledge that it was

      4
          D.C. Code § 22-801 (b) (2012 Repl.).
      5
          D.C. Code §§ 22-3211, -3212 (2012 Repl.).
      6
          D.C. Code § 22-3215 (2012 Repl.).
      7
          D.C. Code § 22-3223 (b)(1)(d)(1) (2012 Repl.).
      8
          D.C. Code § 22-3232 (a), (c)(2) (2012 Repl.).
      9
          D.C. Code § 22-3232 (a), (c)(1) (2012 Repl.).
                                            7

stolen. Mr. Morton was tried by a jury and was acquitted on all charges except the

felony RSP charge and the misdemeanor RSP charge. Appellant was sentenced to

one year of imprisonment for the misdemeanor RSP conviction and seven years of

imprisonment for the felony RSP conviction, to run concurrently. This appeal

followed.



                               II.   Standard of Review



      When reviewing a denial of a motion to suppress, this court defers to the trial

court‟s factual findings unless clearly erroneous and considers all inferences in favor

of the prevailing party. See Griffin v. United States, 878 A.2d 1195, 1198 (D.C.

2005). All legal conclusions are reviewed de novo, including whether a suspect

was in custody for purposes of Miranda. In re I.J., 906 A.2d 249, 261-62 (D.C.

2006) (“This court will defer to the trial court‟s findings of fact, but will review de

novo whether, on those facts, the person was in custody.”).



                                     III.   Analysis



      The Fifth Amendment provides that “[n]o person . . . shall be compelled in

any criminal case to be a witness against himself.”          U.S. CONST. amend. V.
                                          8

Under Miranda v. Arizona, this constitutional rule precludes the prosecution‟s use in

its case-in-chief of statements that have been elicited during custodial interrogation

without the benefit of “prophylactic warnings . . . which inform criminal defendants

of various constitutional rights,” regardless of whether those unwarned statements

would otherwise be considered “compelled.” In re I.J., 906 A.2d at 255; see White

v. United States, 68 A.3d 271, 276 (D.C. 2013). Miranda warnings are required

whenever a suspect is both (1) in custody and (2) under interrogation. Id. In the

present case, the government does not contest that the appellant was subjected to

interrogation when Officer Washington questioned him about why he fled and why

he threw a wallet while being pursued. Thus, the only question before the court is

whether Mr. Morton was in custody for purposes of Miranda when the police

questioned him.



      In determining whether a person is in custody for Miranda purposes, the court

must look to the totality of the circumstances surrounding the interrogation and then

determine whether a reasonable person in those circumstances would have felt he or

she was not at liberty to terminate the interrogation and leave. See id. (citing

Thompson v. Keohane, 516 U.S. 99, 112 (1995); see also United States v. Turner,

761 A.2d 845, 851 (D.C. 2000) (“The test for determining whether a person is in

custody is an objective one . . . „based upon looking at the totality of the
                                         9

circumstances.‟”). However, the mere fact that a suspect has been detained by

police—and thus is not free to leave— is not alone sufficient to constitute Miranda

custody. Id. “Custody is clearly more than seizure alone.” Id. The court must

apply an objective test to resolve the “ultimate inquiry,” which is to determine

whether there was either a “formal arrest or restraint on freedom of movement of the

degree associated with a formal arrest.”      In re I.J., 906 A.2d at 255 (citing

California v. Beheler, 463 U.S. 1121, 1125 (1983)). Accordingly, the focus of the

inquiry in the present case should be on how a reasonable person in Mr. Morton‟s

position would have perceived his situation at the time he was questioned.10




      10
          At oral argument, the government contended that the “reasonable person”
test presupposes a “reasonable innocent person,” as opposed to simply a “reasonable
person” in the defendant‟s position, the latter of which could involve an analysis of
the mental state of a person who has knowledge of his own guilt. This court has
said, in dicta, that the “reasonable innocent person” analysis applied in Fourth
Amendment contexts similarly applies in Fifth Amendment contexts. See, e.g.,
White, 68 A.3d at 276 n.8; Griffin, 878 A.2d at 1198 (relying on Fourth Amendment
analysis in United States v. Gayden, 492 A.2d 868, 872 (D.C. 1985)); Castellon v.
United States, 864 A.2d 141, 152 (D.C. 2004); Turner, 761 A.2d at 851 n.7 (quoting
Florida v. Bostick, 501 U.S. 429, 438 (1991)). We decline to decide the issue,
however, because although in the present case Mr. Morton was aware of his guilt
when he was apprehended and questioned, we hold that he was in custody for
Miranda purposes under either construction of the “reasonable person” test.
                                          10

      This court has acknowledged that “the task of defining „custody‟ is a slippery

one.” White, 68 A.3d at 279 (citing In re D.W., 989 A.2d 196, 201 (D.C. 2010)).

Indeed, there is no bright-line rule “to save courts from „occasionally [having]

difficulty deciding exactly when a suspect has been taken into custody.‟” Id.

(quoting Berkemer v. McCarty, 468 U.S. 420, 441 (1984)). In In re I.J., this court

observed that confusion may arise in differentiating between a Fourth Amendment

seizure analysis and a Fifth Amendment custody analysis. In re I.J., 906 A.2d at

257 (quoting Miley v. United States, 477 A.2d 720 (D.C. 1984)) (“[E]xperience

demonstrates that the reach of Miranda is sometimes blurred in circumstances

involving a Terry encounter and the parameters of the terms „custody‟ and „arrest‟

may change with the context.”); see Turner, 761 A.2d at 851 (“On a fundamental

level, „seizure‟ and „custody‟ are not synonymous.”) (internal citation omitted).

The fact that an encounter may be a reasonable seizure within the scope of Terry for

Fourth Amendment purposes does not automatically and necessarily remove it from

Miranda‟s Fifth Amendment protections.11 See White, 68 A.2d at 284 (citing In re

D.W., 989 A.2d at 201 (“[I]t is clear . . . that an individual may be in custody even

when he was not been formally arrested.”)). The court in In re I.J. explained this in

the following way:

      Should the circumstances so dictate, a person may be seized—stopped,

      11
           Terry v. Ohio, 392 U.S. 1 (1968).
                                             11

      frisked, handcuffed, detained, transported in a police vehicle to another
      location (including a police station) and briefly questioned—so as to
      allow a Terry investigation on reasonable articulable suspicion without
      the encounter being deemed an arrest, within the meaning of the Fourth
      Amendment, requiring probable cause. However, if the same tactics
      that may be permitted by the Fourth Amendment would cause a
      reasonable person in the suspect‟s situation to believe that his freedom
      of action has been curtailed to a degree associated with formal arrest,
      there is custody that triggers the additional protections of the Fifth
      Amendment.

906 A.2d at 260. Accordingly, we proceed in our analysis of the present case with

awareness that the standard that applies in Fourth Amendment versus Fifth

Amendment contexts is distinct and may produce different outcomes.



      When assessing whether a defendant is in Miranda custody, this court

considers: the degree to which police physically restrain the suspect—including

whether police use handcuffs;12 “[c]ommunications from the police to the suspect,”

and particularly, whether the police have informed the suspect that he is not under

arrest and that he may decline to answer questions;13 whether interrogation occurs in

public or in a “secluded area”; 14 the length of the detention and questioning; 15



      12
           White, 68 A.3d at 279.
      13
           Id. at 260.
      14
           In re I.J., 906 A.2d at 260-61.
                                          12

whether the police questioning is “inquisitorial” or “accusatory”; 16 the show of

force or brandishing of weapons by the police; 17 and whether “the suspect is

„confronted with obvious evidence of [his] guilt‟” or the police “already have

sufficient cause to arrest, and this is known to the suspect.”18 While any of these

factors may weigh upon whether a suspect was in Miranda custody, “there is no

checklist.” White, 68 A.3d at 282. “[N]o single factor is dispositive,” and this

court “examines each case on its particular facts, and factors that may be given

significant weight in one case may be less important in a different context.” Id.



      Here, appellant was stopped on a public street and restrained with handcuffs

after fleeing from and being chased down by the police. He was questioned and

confronted with evidence that was at least sufficient to establish probable cause that

he had committed a crime. However, he was told by Officer Washington that he

was not under arrest before he was questioned. Considering the totality of the

circumstances, we conclude that a reasonable person in the place of the appellant

(. . . continued)
         15
            In re A.J., 63 A.3d 562, 568 (D.C. 2013).
      16
           White, 68 A.3d at 281.
      17
           Bates v. United States, 51 A.3d 501, 510 (D.C. 2012).
      18
        White, 68 A.3d at 261 (quoting Miley v. United States, 477 A.2d 720, 722
(D.C. 1984)).
                                         13

would not have felt free to terminate the police questioning and leave, and the

restraint involved in appellant‟s detainment was congruent to the degree of restraint

normally associated with formal arrest. Thus, appellant was in custody for the

purposes of Miranda when he made incriminating statements.



      Mr. Morton‟s detention by use of handcuffs, although not strictly dispositive

on this issue, strongly militates toward a finding of Miranda custody. In White, this

court discussed at length the import that handcuffing a suspect has on the Fifth

Amendment custody analysis. That case involved a traffic stop in which the

suspect was asked to step out of the car and was handcuffed and asked questions

about whether there were illegal drugs in his car. White, 68 A.3d at 274. In that

case, the court held that handcuffing was a strong indicium of Miranda custody. Id.

at 279-81. The court noted that “handcuffing does not necessarily transform an

investigative detention into an arrest, but it is recognized as „a hallmark of formal

arrest.‟”19 Id. at 279 (citing Al-Mahdi v. United States, 867 A.2d 1011, 1023 (D.C.

2005)); see also New York v. Quarles, 467 U.S 649, 652, 655 (1984) (finding the


      19
         The White court observed that this court has frequently “pointed to the
absence of handcuffing as a reason why a defendant was not in custody for purposes
of Miranda.” White, 68 A.3d at 279 (citing nine cases as examples); see also 2
WAYNE LA FAVE ET AL., CRIMINAL PROCEDURE § 6.6 (f) (3d ed. 2000) (stating that
courts are “likely to find custody if there was physical restraint such as
handcuffing”).
                                         14

defendant “undoubtedly” in custody after he was chased by police and restrained in

handcuffs); Thompson v. Keohane, 516 U.S. at 112; Al-Mahdi, 867 A.2d at 1023

(handcuffing is a severe “restraint on freedom of movement of the degree associated

with a formal arrest”). In fact, the court in White noted that neither this court nor

the Supreme Court has ever published an opinion in which it determined that a

suspect in handcuffs was not in Miranda custody. White, 68 A.3d at 279. While

handcuffing does not end the inquiry, and must be considered in context of the

totality of the circumstances, “in order to outweigh the use of handcuffs,” there must

be “strong indications on the other side of the ledger” that there was not Miranda

custody. Id.



      The government argues that in the totality of the circumstances, a reasonable

person in appellant‟s situation would not have believed that his freedom had been

restrained to the degree associated with a formal arrest, and therefore, Mr. Morton

was not in custody when he made incriminating statements. In particular, the

government asserts that although Mr. Morton was handcuffed, he would not have

reasonably believed the police intended to arrest him because they told him he was

not under arrest and because their questioning was merely investigatory and not

accusatory or inquisitorial. Moreover, the government argues, because Mr. Morton

was questioned on a street and in view of the public, and his detention was
                                         15

conducted by only two officers who did not brandish weapons, he was not in

Miranda custody. We address each of these arguments in turn.



      First, the government argues that because the police told appellant that he was

not under arrest, this court, unlike in White, should hold that he was not in custody

for Miranda purposes. While the government is correct in its contention that

“[c]ommunications from the police to the suspect” are a factor in the Miranda

custody analysis, and such communications “may assuage the reasonable person‟s

assessment of the situation, and militate against a finding of custody,” the

government‟s argument ignores the fact that appellant was never told that he did not

have to answer questions posed by the police. In re I.J., 906 A.2d at 260; United

States v. Griffin, 7 F.3d 1512, 1518 (10th Cir. 1993) (“[T]he lack of police

advisement that the suspect is at liberty to decline to answer questions or free to

leave is a significant indication of a custodial detention.”). This court has stated

that “where the police specifically inform the suspect that he or she is not under

arrest, and does not need to talk to the police, a stop for investigatory purposes is

unlikely to be custodial.” In re I.J., 906 A.2d at 260 (emphasis added). Appellant

was never told that he was at liberty to decline to answer questions or that he was

free to leave.   Under those circumstances, courts, including this court, have

concluded that a handcuffed suspect is in custody for Miranda purposes. See
                                         16

Griffin, 7 F.2d at 1518; Broom v. United States, 118 A.3d 207 (D.C. 2015) (finding

custody where officers handcuffed the defendant and instructed him he was “not

under arrest” before asking accusatory questions); see also United States v. Cowan,

674 F.3d 947, 957-58 (8th Cir. 2012) (finding custody where officers handcuffed the

defendant and “[n]o one told [him] he was free to leave or to abstain from answering

questions”). Notably, this court has emphasized that police pronouncements that a

suspect is not under arrest carry less weight in the Miranda custody analysis when

the officer‟s statement is made to a suspect who is nonetheless confronted with “the

type of formality that a lay person might reasonably view as having all the indicia of

a formal arrest.” 20 See Turner, 761 A.2d at 852-53 (emphasis added) (finding


      20
          Other jurisdictions take a similar approach. The Second Circuit in United
States v. Newton, 369 F.3d 659 (2d Cir. 2004) explained:

      [T]elling a suspect that he is not under arrest does not carry the same
      weight in determining custody when he is in handcuffs as it does when
      he is unrestrained. . . . Although a reasonable person told, as Newton
      was, that he was not under arrest would likely have understood that he
      was not about to be removed from his home to the police station—a
      significant factor in assessing [custody]—a reasonable person would
      also have understood that as long as the handcuffs remained in place,
      his freedom of movement . . . would be restricted to a degree
      comparable to that of an individual placed under formal arrest. . . .
      [W]e cannot assume that a reasonable person in his situation would
      have understood that the handcuffing would likely last only until the
      officers had completed their search. Neither can we assume an
      understanding that removal or maintenance of the handcuffs depended
      on the outcome of the search rather than on the suspect‟s responding to
      questions posed. Because Miranda’s safeguards become applicable as
                                                                     (continued . . .)
                                           17

custody where officers told the defendant he was “not under arrest” but also

informed him about a search warrant allowing them to obtain hair samples and

bodily fluids from him); see also In re J.F., 987 A.2d 1168, 1176 (D.C. 2010)

(finding that although the defendant was not initially in custody because he was not

handcuffed and was told he was “not under arrest and he was free to leave,” he was

later in custody when officers “became more confrontational” and told him, “before

we let you go, you need to sit here and tell us how [the sexual assault] occurred”);

Ruffin v. United States, 524 A.2d 685, 698-99 (D.C. 1987) (finding that although the

defendant was not initially in custody when he voluntarily came to the police station

and was told he was not under arrest, he was in custody when officers later

interrogated him in a “coercive atmosphere,” and gave him no further “indication

. . . that he was entitled to leave”). Accordingly, we conclude that under the

circumstances the statement to the appellant that he was not under arrest is not a

“strong indication[] on the other side of the ledger that this was not Miranda

custody” as is necessary when a suspect‟s freedom of movement is restrained by


(. . . continued)
         soon as a suspect‟s freedom of action is curtailed to a degree associated
         with formal arrest, we must conclude that handcuffing Newton, though
         reasonable to the officers‟ investigatory purpose under the Fourth
         Amendment, nevertheless placed him in custody for purposes of
         Miranda.

Id. at 676-77 (internal quotation marks omitted).
                                         18

handcuffs. White, 68 A.3d at 280.



       Next, the government contends that the police questioning was “relaxed” and

“not accusatory” in support of their argument that appellant was not in custody.

We conclude that the record supports the opposite deduction: that Mr. Morton

faced accusatory and inquisitorial questions, indicating that the police officers

believed he had committed a crime. Thus, the nature of the questioning favors a

finding of custody. The police pressed Mr. Morton with questions that centered on

evidence of criminal activity and that presupposed his guilt, asking: “Why would

you run if you didn‟t do anything?” “What‟s up with the wallet?” “The wallet you

threw. It‟s right behind you. I saw you throw the wallet. What‟s up with the

wallet?” Notwithstanding the statement by Officer Gray to Mr. Morton that he was

not under arrest, a reasonable person under these circumstances, subjected to

questions by police about incriminating facts, while handcuffed, “would not . . . feel

he was at liberty to stop the questioning and leave,” and would have equated such

restraint to that of formal arrest. United States v. Martinez, 462 F.3d 903, 909 (8th

Cir. 2006) (finding custody where the handcuffed defendant was “closely

questioned about his possession of weapons” and “asked at least twice to explain the

presence of [stolen] cash”).
                                         19

      Finally, the government argues that because appellant‟s interrogation was

conducted on a public street during the day, lasting only a few minutes, and because

the police officers did not brandish their firearms, we should not conclude that

appellant was in Miranda custody. While these factors lend a measure of support

for the conclusion that the questioning was not coercive, we hold that they do not tip

the scale away from a finding of custody in light of Mr. Morton‟s physical restraint

and the nature of his questioning, discussed above. Even if handcuffing Mr.

Morton was an appropriate measure used to enable the officers to conduct an

investigation under the Fourth Amendment, the additional circumstances

surrounding appellant‟s detainment placed him in custody, thus entitling him to

Miranda warnings under the Fifth Amendment.21



                                 IV.    Conclusion




      21
         As we explained in In re I.J., “[w]hen an encounter becomes dominated by
police authority, the Fourth Amendment of the Constitution may not operate to
prevent the investigation, but the Fifth Amendment may require that officers must
make a choice—if they are going to take highly intrusive steps to protect themselves
from danger, they must similarly provide protection to their suspects by advising
them of their constitutional rights.” In re I.J., 906 A.2d at 260 (quoting United
States v. Perdue, 8 F.3d 1455, 1465 (10th Cir. 1993)).
                                         20

       In sum, we hold that, under the totality of the circumstances, the trial court

erred in finding Mr. Morton was not in custody for Miranda purposes, and

subsequently erred in denying his motion to suppress the statements used against

him at trial.22

                                                       Reversed and remanded.23



       FERREN, Senior Judge, concurring: In footnote 10 of the court‟s opinion we

observe that, in determining “custody” under Miranda1 — an analysis that turns, in

part, on the suspect‟s mindset (“Am I free to leave or under arrest?”) — this court

has said four times, “in dicta,” that the Fifth Amendment mindset is that of a

“reasonable innocent person.”2 We, therefore, were saying that ascertainment of


       22
         The government does not dispute appellant‟s contention that any error in
the admission of appellant‟s statements to the officers while detained was not
harmless beyond a reasonable doubt.
       23
           Appellant also argues that his convictions for RSP should merge.
Because we reverse his convictions on the Fifth Amendment claim, we decline to
address the merger argument.
       1
            Miranda v. Arizona, 384 U.S. 436 (1966).
       2
          United States v. Turner, 761 A.2d 845, 851 n.7 (D.C. 2000) (quoting
Florida v. Bostick, 501 U.S. 429, 438 (1991) (holding that police officers‟ request
that bus passenger consent to search of luggage did not constitute “seizure” under
Fourth Amendment)); Castellon v. United States, 864 A.2d 141, 152 (D.C. 2004)
(quoting Turner, 761 A.2d at 851 n.7 (quoting Bostick, 501 U.S. at 438)); Griffin v.
United States, 878 A.2d 1195, 1198 (D.C. 2005) (relying on Fourth Amendment
                                                                    (continued . . .)
                                         21

this mindset under the Fifth Amendment presupposes the same, objective

assessment employed by the police when resolving, under the Fourth Amendment,

whether a suspect has consented, without coercion, to a search.3


      I believe that the dictum equating these Fourth and Fifth Amendment

assessments is substantially overstated. According to the Supreme Court, a police

officer‟s “knowledge or beliefs” casting suspicion on a detainee — if “conveyed by

word or deed” to that detainee — are relevant to the extent they would affect “how a

reasonable person in that position would perceive his or her freedom to leave.” 4

“Custody,” therefore, is not determined by assuming automatically that the

detainee‟s state of mind, in responding to police questions, will always be that of a



(. . . continued)
analysis in United States v. Gayden, 492 A.2d 868, 872 (D.C. 1985)); White v.
United States, 68 A.3d 271, 276 n.8 (D.C. 2013) (quoting Turner, 761 A.2d at 851
n.7 (quoting Bostick, 501 U.S. at 438)).
      3
          See Bostick, 501 U.S. at 438 (holding that assessment of “consent”
resolved objectively on assumption that passenger was a “reasonable innocent
person”).
      4
          Stansbury v. California, 511 U.S. 318, 325 (1994) (“[A]n officer‟s views
concerning the nature of an interrogation, or beliefs concerning the potential
culpability of the individual being questioned, may be one among many factors that
bear upon the assessment whether that individual was in custody, but only if the
officer‟s views or beliefs were somehow manifested to the individual under
interrogation and would have affected how a reasonable person in that position
would perceive his or her freedom to leave.”).
                                          22

reasonable “innocent” person.


                                          I.


      In Miranda, the Supreme Court required specified warnings to be given

during “custodial interrogation,” described 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.” 5 The Court later made

clear that custodial interrogation was not limited to the police station. In a decision

addressed to questioning at the suspect‟s home, the Court reversed the conviction

because the “suspect was under arrest and not free to leave.” 6 Later Miranda

decisions clarified that “custody” was not limited to a formal arrest; the Court

extended its meaning to curtailment of freedom of action to “a degree associated

with formal arrest.”7 Custody in the nature of an arrest therefore became the key

concept in triggering Miranda rights.

      5
          Miranda, 384 U.S. at 444.
      6
         Orozco v. Texas, 394 U.S. 324, 327 (1969); see Oregon v. Mathiason, 429
U.S 492, 494-95 (1977) (confirming that “Miranda principle” applies to questioning
after suspect “has been arrested and is no longer free to go where he pleases,” but
finding “no indication that the questioning took place in a context where
respondent‟s freedom to depart was restricted in any way”).
      7
          Berkemer v. McCarty, 468 U.S. 420, 440 (1984) (emphasis added)
(quoting California v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam)).
                                         23


      When a defendant argued, to the contrary, that Miranda warnings were

required at a routine traffic stop prior to a formal arrest, the Court demurred.

Defendant‟s argument was based on the language of Miranda that mandates

warnings when someone, if not formally taken into “custody,” is “otherwise

deprived of his freedom of action in any significant way.” 8 In rejecting this

argument, the Court acknowledged that a traffic stop is indeed a “significant”

deprivation of freedom.9 But it declined to grant Miranda‟s language “talismanic

power.”10 A routine traffic stop, said Justice Marshall, does not exert “pressures

that sufficiently impair [a suspect‟s] free exercise of his privilege against

self-incrimination.”11 As the Court later put it, “„the freedom-of-movement test

identifies only a necessary and not a sufficient condition for Miranda custody‟”;12

the severity of the detention is also a defining factor. In sum, “the „temporary and

relatively nonthreatening detention involved in a traffic stop or Terry stop does not


      8
           Miranda, 384 U.S. at 444.
      9
           Berkemer, 468 U.S. at 436.
      10
           Id. at 437.
      11
           Id.
      12
          Howes v. Fields, 132 S. Ct. 1181, 1190 (2012) (quoting Maryland v.
Shatzer, 559 U.S. 98, 112 (2010)).
                                          24

constitute Miranda custody.‟”13


      Eventually, the Supreme Court announced a hybrid, objective test, followed

to this day, that knits together (1) the freedom-of-movement inquiry and (2) the

degree of detention associated with a formal arrest.


             [1] [Given] the circumstances surrounding the
             interrogation[,] . . . would a reasonable person have felt he
             or she was not at liberty to terminate the interrogation and
             leave. [2] 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.”[14]

      Factors relevant to determining how a reasonable person would have

“gauge[d] his freedom of movement” at the time the police confronted him, said the

Court, “include the location of the questioning, its duration, statements made during
      13
           Id. (quoting Shatzer, 559 U.S. at 113).
      14
           Thompson v. Keohane, 516 U.S. 99, 112 (1995) (emphasis added)
(internal quotation marks omitted) (quoted in J.D.B. v. North Carolina, 131 S. Ct.
2394, 2402 (2011)).

       This court has combined the two formulations as follows: “whether there
was any show of authority or other message conveyed which would cause the
suspect to reasonably think he or she was not free to terminate the questioning and
leave and that his or her freedom was being restrained to „the degree associated with
a formal arrest.‟” In re I.J., 906 A.2d 249, 261 (D.C. 2006) (quoting Beheler, 463
U.S. at 1125).
                                          25

the interview, the presence or absence of physical restraints during the questioning,

and the release of the interviewee at the end of the questioning.”15



      The objective test for determining custody, including the mindset of a

“reasonable person” central to the freedom-of-movement inquiry, is traceable to the

Supreme Court‟s decision in Berkemer.16 There the Court said that the “only

relevant inquiry is how a reasonable man in the suspect‟s position would have

understood the situation.”17 The Court quoted a New York decision opining that

the “reasonable man test is appropriate because, unlike a subjective test, it „is not

solely dependent either on the self-serving declarations of the police officers or the

defendant nor does it place upon the police the burden of anticipating the frailties or

idiosyncrasies of every person whom they question.‟”18


      More recently, in J.D.B., the Supreme Court expanded upon its reasoning in

Berkemer by emphasizing the irrelevance “of the actual mindset of the particular


      15
           Howes, 132 S. Ct. at 1189 (internal citations omitted).
      16
           Berkemer, 468 U.S. at 440.
      17
           Id. at 442.
      18
           Id. at 442 n.35 (quoting People v. Rodney P., 233 N.E.2d 255, 260 (N.Y.
1967)).
                                         26

suspect subjected to police questioning.”19       It expressly excluded personal

“idiosyncrasies,” “particular traits,” “unknowable” circumstances, “contingent

psychological factors,”20 and “frailties”21 from police consideration when sizing up

the suspect. The Court‟s examples suggest that the definition of an irrelevant

mindset is limited primarily to a mental deficiency or other attribute that shortcuts

reason. The concern appears to be that the police could not reasonably be expected

to carry out their duties within the bounds of the law if the law governing their

conduct gave suspects the benefits of abnormalities that a police officer would not

likely perceive. None of the Supreme Court‟s examples, however, includes a

disqualifying state of mind characterized by guilt rather than innocence. Nor has

the Court to date expressly limited a “reasonable person” for Fifth Amendment

purposes to one who is presumed “innocent.”22


      19
           J.D.B., 131 S. Ct. at 2402.
      20
          Id. at 2402-04 (internal quotation and citation omitted). It is interesting
to note that in J.D.B., the Court identified a subset of “reasonable person” for
Miranda purposes, namely, a “reasonable child”— a “reality” that “courts can
account for . . . without doing any damage to the objective nature of the custody
analysis.” Id. at 2403.
      21
           Yarborough v. Alvarado, 541 U.S. 652, 662 (2004).
      22
           See United States v. FNU LNU, 653 F.3d 144, 151 n.6 (2d Cir. 2011)
(“Whether the reasonable person in the Fifth Amendment Miranda inquiry is
similarly innocent seems to be an open question.”).
                                          27


      At least two federal circuits, moreover, apparently would not exclude a

suspect‟s “guilty state of mind” from influencing his or her mindset for Miranda

purposes if the reasons for that guilty mind were “apparent to the questioning

officer.”23 The question thus becomes what this possible exception exactly means

and whether it provides a sound limitation on wholesale importation of the

“reasonable innocent person” from the Fourth Amendment into Fifth Amendment

Miranda analysis.


                                          II.



      As noted earlier, in a string of Fifth Amendment Miranda decisions, this

court, in dicta, borrowed the “innocent person” gloss on “reasonable person” from

      23
           Compare United States v. Erving L., 147 F.3d 1240, 1247 (10th Cir. 1998)
(“Berkemer’s „reasonable person‟ does not have a guilty state of mind and does not
have peculiar mental or emotional conditions that are not apparent to the questioning
officer.”) (quoting United States v. Little, 18 F.3d 1499, 1505 (10th Cir. 1994) (en
banc) (“[T]he particular personal traits or subjective state of mind of the defendant
are irrelevant to the objective „reasonable‟ person test . . . „other than to the extent
that they may have been known to the officer and influenced his conduct.‟”)), and
United States v. Galceran, 301 F.3d 927, 929 (8th Cir. 2002) (“[A] reasonable
person „does not have a guilty state of mind [or] . . . peculiar mental or emotional
conditions that are not apparent to the questioning officer.‟”) (quoting United States
v. Hudson, 210 F.3d 1184, 1190 (10th Cir. 2000)), with United States v. Moya, 74
F.3d 1117, 1119 (11th Cir. 1996) (“[U]nder the objective standard, the reasonable
person from whose perspective „custody‟ is determined is a reasonable innocent
person.”) (citing Bostick, 501 U.S. at 437-38).
                                           28

the Supreme Court‟s Fourth Amendment jurisprudence.24 The Supreme Court

announced the “innocent person” limitation in Bostick,25 a Fourth Amendment case

in which police officers on a bus, without initially seizing a passenger, asked him

whether they could inspect his luggage. He consented. The officers found drugs.

In support of the passenger‟s motion to suppress, counsel argued that his client had

been unlawfully seized because he could not have “reasonably” consented to the

search; no guilty person, knowing the drugs were in the suitcase, would have done

so, said counsel. Rejecting that argument, the Supreme Court ruled that under the

Fourth Amendment, the issue of consent should be resolved objectively, solely from

the police perspective, as though the passenger were a “reasonable innocent

person.”26 This presumed state of mind is essential, the Court implied, in order to

assure that the police, in approaching a suspect, will apply a common, objective

standard — unaffected by the suspect‟s unknowable mindset — for determining


      24
          See supra note 2. At least four states (and probably more) have similarly
done so, including Wisconsin, State v. King, 508 N.W.2d 74 (Wis. Ct. App. 1993)
(citing Bostick, 501 U.S. at 438), Texas, Blanks v. State, 968 S.W.2d 414, 419 (Tex.
App. 1998) (citing Bostick, 501 U.S. at 438; Dowthitt v. State, 931 S.W.2d 244, 254
(Tex. Crim. App. 1996)), Virginia, Jones v. Commonwealth, 2009 Va. App. LEXIS
183, at *5 (Va. Ct. App. 2009) (quoting Bostick, 501 U.S. at 438), and Illinois,
People v. Jeffers, 849 N.E.2d 441, 446 (Ill. Ct. App. 2006) (citing Bostick, 501 U.S.
at 438).
      25
           See Bostick, 501 U.S. at 438.
      26
           Id.
                                             29

whether a purportedly consensual search would nonetheless amount to an unlawful

“seizure.”27


      Years later, in I.J., this court observed that “the Fourth Amendment inquiry is

not the same as, nor does it ultimately decide, the question of whether there was

custody under the Fifth Amendment. . . . The distinction is based on the different

interests which the two amendments safeguard.”28 The Fourth Amendment, we

said, accommodates a police officer‟s perspective (“the public‟s interest in effective

on-the-scene investigative work”) — the perspective from which the constitutional

validity of a “seizure” is judged.29 The Fifth Amendment jurisprudence from which

“custody” is evaluated, however, reflects the suspect‟s perspective (shielding the

“suspect from compelled self-incrimination”) — a protection that “places a much

higher value on the individual right at stake than on the needs of law enforcement.”30



      Thus this question: can a detained suspect‟s subjective awareness of his guilt

ever support an objective determination that, as a reasonable person, he did not feel

      27
         See id. (quoting Florida v. Royer, 460 U.S. 491, 519 n.4 (1983)
(Blackmun, J., dissenting); Michigan v. Chesternut, 486 U.S. 567, 574 (1988)).
      28
           In re I.J., 906 A.2d at 257-58.
      29
           Id. at 258.
      30
           Id. at 259.
                                         30

free to end the police questioning and leave — contrary to the dictum that would

limit his mindset to that of a reasonable “innocent” person?



      We begin with Stansbury, in which the Supreme Court explained that a police

officer‟s own “subjective view” about the guilt of a detainee under questioning

“does not bear upon the question whether the individual is in custody for purposes of

Miranda,”31 with one clear exception: “[a]n officer‟s knowledge or beliefs may

bear upon the custody issue if they are conveyed by word or deed to the individual

being detained.”32 When that happens, “those beliefs are relevant only to the extent

they would affect how a reasonable person in the position of the individual being

questioned would gauge the breadth of his or her „freedom of action.‟” 33 Or, more

specifically, as the Court summarized its ruling a few sentences later:

              [A]n officer‟s . . . beliefs concerning the potential
              culpability of the individual being questioned[] may be
              one among many factors that bear upon the assessment
              whether the individual was in custody, but only if the
              officer‟s views or beliefs were somehow manifested to the
              individual under interrogation and would have affected
              how a reasonable person in that position would perceive


      31
           Stansbury, 511 U.S. at 324.
      32
           Id. at 325.
      33
           Id. (quoting Berkemer, 468 U.S. at 440).
                                              31

                 his or her freedom to leave.[34]



      Accordingly, as we have said, if the detainee were to be confronted with

“obvious evidence of guilt,” he could readily assume that “he would not be allowed

to leave,”35 for he would be confronted with probable cause to arrest.             But

Stansbury goes further.         It permits the officer‟s “knowledge” or “views” or

“beliefs” about the detainee‟s guilt, short of probable cause, to influence the

detainee‟s state of mind for Miranda purposes if “conveyed” or “manifested” to the

detainee “by word or deed.”36



      It is important to emphasize that this Fifth Amendment analysis does not

credit the detainee with information unknown to the police, such as the personal



      34
           Id.
      35
           Miley v. United States, 477 A.2d 720, 722 (D.C. 1984). This court
offered the same reasoning in In re I.J.: “What otherwise would be a permissible
Terry stop should be deemed an arrest, necessitating Miranda warnings, when the
suspect is „confronted with the obvious evidence of guilt.‟ Because Miranda‟s
focus is on the perceptions of the reasonable person, it is necessary to recognize that
a suspect would reasonably believe that the police intend to arrest him because the
police have evidence against him.” In re I.J., 906 A.2d at 261 (quoting Miley, 477
U.S. at 722 (other citations omitted)).
      36
           Stansbury, 511 U.S. at 325.
                                         32

idiosyncrasies and other “unknowable” circumstances referenced earlier in J.D.B.37

and Alvarado.38 Thus, as long as the detained suspect is unaware of any concrete

suspicion or evidence of his guilt harbored by the police, that detainee can be

presumed under the Fifth as well as the Fourth Amendment to have an innocent

mindset for purposes of assessing whether he, as a reasonable person, would — or

would not — feel free to “terminate the interrogation and leave.”39


      In no way, therefore, is law enforcement prejudiced by permitting the

detained suspect to take into account what the police already know. The suspect

would be prejudiced, however, if his privilege against self-incrimination were

compromised by deeming him a reasonable “innocent” person for purposes of

determining his mindset when a truly reasonable person in his position would factor

in his guilty actions, known to the police, when considering whether he felt free to

snub police questioning and leave the scene.



      In the present case, the police knew that appellant Morton was aware that the

police had seen him flee at high speed when he saw them approaching — an action


      37
           J.D.B., 131 S. Ct. at 2402.
      38
           Alvarado, 541 U.S. at 662.
      39
           Thompson, 516 U.S. at 112.
                                         33

reflecting consciousness of guilt. And the officers saw him throw away what

turned out to be a wallet as he ran. Upon apprehending Morton, the officers knew

they would ask him, “We need to know why you ran. Why would you run if you

didn‟t do anything?” (“I had a needle on me”). And, “I saw you throw a wallet.

What‟s up with the wallet”? (“I found it on the [M]etro”). Morton, of course,

knew that the police had seen his flight, and although the police may not have looked

into the wallet when they asked him about it, they had to know that it might well

elicit at least a questionable, even incriminating, response, which it did. 40 Under

these circumstances, the police conveyed by “word” and “deed” to Morton their

“knowledge” and “beliefs” reflecting suspicion of his guilt, inevitably affecting how

Morton would “gauge the breadth” of his “freedom of action”41 — if any.



      Under these circumstances, therefore, Morton‟s guilty actions — easily

perceived by the police before they spoke to him (and confirmed by his responses

about the “needle” and the “Metro”) — comprised a legitimate, indeed compelling

factor in assessing Morton‟s mindset before the police began to ask questions. And

      40
          Even though in asking Morton about the wallet the officer may not yet
have looked inside and found the incriminating credit card and keys, Morton did not
know that; he had every reason to believe that the police had inspected the wallet and
thus had evidence that would inevitably lead to his prosecution.
      41
           Stansbury, 511 U.S. at 325.
                                         34

that mindset, inevitably informed by police awareness of his flight and the wallet,

almost assuredly would have convinced Morton that he could not end the

questioning and leave — even without reference to his handcuff restraints. As a

“reasonable person” evaluating his options, his incriminating actions, not innocence,

informed his state of mind. The police should have understood that and given

Miranda warnings before they began to interrogate Morton.42



                                        *****



      On four occasions this court has erroneously stated, in dictum, that for

purposes of ascertaining “custody” under Miranda, “[t]he reasonable person test

presupposes an innocent person.”43 In my judgment, however, the correct rule of

law, reflecting Stansbury, should be expressed more narrowly, permitting on


      42
           The government acknowledges in its brief (p. 28) that Morton “was
interrogated,” presumably because the questions were sufficiently accusatory to
reach the required level of compulsion. Not “all statements obtained by the police
after a person has been taken into custody are to be considered the product of
interrogation. . . . „Any statement given freely and voluntarily without any
compelling influences is, of course, admissible in evidence. . . . Volunteered
statements of any kind are not barred by the Fifth Amendment.‟ . . . „Interrogation,‟
as conceptualized in the Miranda decision, must reflect a measure of compulsion
above and beyond that inherent in custody itself.” Rhode Island v. Innis, 446 U.S.
291, 299-300 (1980) (emphasis added) (quoting Miranda, 384 U.S. at 478).
      43
           See supra note 2.
                                         35

occasion the determination of a “reasonable person” by reference to his or her guilty

mind — as follows

             Under the Fifth Amendment, for purposes of ascertaining
             “custody” under Miranda, the reasonable person test
             presupposes an innocent person unless the investigating
             police officer, by word or deed, conveys to the detained
             individual the officer‟s knowledge or beliefs, reflecting
             suspicion or evidence of guilt, that would likely affect
             how a reasonable person in that position would perceive
             his or her freedom to leave. In that case, the reasonable
             person test shall attribute to the detainee a mindset that
             takes into account what he or she has learned from the
             investigating officer.
