                                  IN THE

    SUPREME COURT OF THE STATE OF ARIZONA
                            STATE OF ARIZONA,
                                Appellee,

                                     v.

                         CARLOS ANDRES MACIEL,
                                Appellant.

                           No. CR-15-0346-PR
                           Filed July 29, 2016

            Appeal from the Superior Court in Yuma County
                The Honorable David M. Haws, Judge
                          No. CR201300422
                             AFFIRMED

              Opinion of the Court of Appeals, Division One
                 238 Ariz. 200, 358 P.3d 621 (App. 2015)
                               VACATED

COUNSEL:

Mark Brnovich, Arizona Attorney General, John R. Lopez IV, Solicitor
General, Joseph T. Maziarz (argued), Chief Counsel, Criminal Appeals
Section, Phoenix, Attorneys for State of Arizona

Michael A. Breeze, Yuma County Public Defender, Edward F. McGee
(argued), Deputy Public Defender, Yuma, Attorneys for Carlos Andres
Maciel

CHIEF JUSTICE BALES authored the opinion of the Court, in which VICE
CHIEF JUSTICE PELANDER and JUSTICES BRUTINEL, TIMMER, and
BOLICK joined.

CHIEF JUSTICE BALES, opinion of the Court:

¶1            Statements a person makes in response to “in custody”
interrogation cannot be used to establish the person’s guilt if they are not
preceded by the warnings required by Miranda v. Arizona, 384 U.S. 436
                            STATE V. MACIEL
                           Opinion of the Court

(1966). We here hold that Carlos Andres Maciel’s statements are admissible
because he was not in custody for Miranda purposes when police detained
him outside a vacant building and questioned him about a suspected
burglary.
                                    I.

¶2            A motorist saw Maciel seated on a curb outside a vacant
building that had a broken window. The building belonged to a church
located on the same property. Noting a board that had covered the window
was missing, and knowing about previous break-ins, the motorist called the
police. Officer Christopher Huntley was dispatched to investigate.

¶3            Officer Huntley parked his patrol car in the church’s parking
lot next to the vacant building. After speaking with the motorist, Officer
Huntley approached Maciel, who was still seated a few feet from the broken
window. Nearby, Maciel had his personal possessions in a shopping cart.
At the officer’s request, Maciel provided identification and agreed to
submit to a pat-down search for weapons. After confirming that Maciel
was unarmed and had no outstanding warrants, Officer Huntley asked
“what he was doing” and if he knew “how the board got removed from the
window.” Maciel said he was just sitting down and denied knowing
anything about the board’s removal. Because Officer Huntley did not know
whether anyone was inside the building, he asked Maciel to sit in the patrol
car until another officer arrived. Within minutes, a second officer arrived
and Maciel was then asked to sit on a curb in the parking lot while the
second officer stood nearby. Maciel complied.

¶4            About that same time, a third officer arrived and helped
Officer Huntley check the building’s perimeter for unsecured doors. While
the officers spent a few minutes doing so, the church pastor arrived. He
told Officer Huntley that three days earlier a board had covered the broken
window. The pastor also said he would be willing to pursue charges if a
suspect was identified. Officer Huntley returned to Maciel and again asked
him about the window. Maciel admitted removing the board the day before
and entering the building to look for money. Maciel was then arrested,
handcuffed, and placed in the patrol car.

¶5           After arresting Maciel, Officer Huntley and the third officer
searched the vacant building. Apart from the broken window, there was
no evidence of entry, and the pastor could not identify anything missing.

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                            Opinion of the Court

Officer Huntley returned to his patrol car, advised Maciel of his Miranda
rights, and again asked him about entering the building. Maciel again said
that he had removed the board and gone inside. From the time Huntley
arrived at the scene, the entire investigation lasted about an hour.

¶6            Before his trial for burglary, Maciel moved to suppress his
statements to the police. After an evidentiary hearing, the trial court
applied the test enunciated in State v. Cruz-Mata, 138 Ariz. 370, 373, 674 P.2d
1368, 1371 (1983), and denied the motion, reasoning that when Maciel was
sitting on the curb he was not in custody for Miranda purposes. A jury
subsequently found Maciel guilty of third-degree burglary. The trial court
suspended the sentence, placed Maciel on intensive probation for thirty-six
months, and ordered him to serve thirty days in jail as a condition of
probation.

¶7             The court of appeals, in a split decision, affirmed the trial
court’s denial of the motion to suppress. State v. Maciel, 238 Ariz. 200, 206
¶¶ 25–26, 207 ¶ 31, 358 P.3d 621, 627, 628 (App. 2015). The majority agreed
with the trial court that Maciel was not in custody when questioned on the
curb. Id. at 204 ¶ 16, 205 ¶ 20, 358 P.3d at 625, 626. The dissent reasoned
that Maciel was in custody because he was not free to terminate the
encounter with the police. Id. at 209 ¶ 41, 210 ¶ 47, 358 P.3d at 630, 631
(Swann, J., dissenting).

¶8             We granted review because the proper standard for
determining if someone is in custody for Miranda purposes is a recurring
issue of statewide importance. We have jurisdiction pursuant to article 6,
section 5(3), of the Arizona Constitution and A.R.S. § 12-120.24.

                                      II.

¶9            In reviewing rulings on motions to suppress, we consider
only the evidence presented at the suppression hearing and view the facts
in the light most favorable to sustaining the trial court’s ruling. State v.
Wilson, 237 Ariz. 296, 298 ¶ 7, 350 P.3d 800, 802 (2015); State v. Dean, 206
Ariz. 158, 161 ¶ 9, 76 P.3d 429, 432 (2003). We will not disturb the trial
court’s ruling absent an abuse of discretion. Dean, 206 Ariz. at 161 ¶ 9, 76
P.3d at 432. An error of law constitutes an abuse of discretion. State v.
Bernstein, 237 Ariz. 226, 228 ¶ 9, 349 P.3d 200, 202 (2015).


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                             Opinion of the Court

                                       A.

¶10           The Fifth Amendment to the U.S. Constitution shields all
persons from compulsory self-incrimination. To safeguard this privilege,
law enforcement officers must provide the well-known Miranda warnings
before interrogating a person in custody. Miranda, 384 U.S. at 478–79. These
warnings are deemed necessary because “without proper safeguards the
process of in-custody interrogation of persons suspected or accused of
crime contains inherently compelling pressures which work to undermine
the individual’s will to resist and to compel him to speak where he would
not otherwise do so freely.” Id. at 467; see also Dickerson v. United States, 530
U.S. 428, 438–40 (2000) (holding that Miranda established a constitutional
rule).

¶11           We have previously held that whether a person is “in
custody” for Miranda purposes ultimately depends on whether there is a
“formal arrest or restraint on freedom of movement of the degree associated
with a formal arrest.” Cruz-Mata, 138 Ariz. at 373–74, 674 P.2d at 1371–72
(quoting California v. Beheler, 463 U.S. 1121, 1125 (1983)); see also State v.
Perea, 142 Ariz. 352, 354, 690 P.2d 71, 73 (1984) (noting that Miranda custody
is “determined by an objective test of whether a reasonable person would
feel deprived of his freedom in a significant way”). Our cases analyzed
three factors when considering Miranda custody: the site of the questioning,
the presence of objective indicia of arrest, and the length and form of the
interrogation. State v. Fulminante, 161 Ariz. 237, 243, 778 P.2d 602, 608 (1988)
(quoting Cruz-Mata, 138 Ariz. at 373, 674 P.2d at 1371).

¶12           Since our decisions in Cruz-Mata, Perea, and Fulminante, the
United States Supreme Court has made clear that restraint on freedom of
movement alone does not establish Miranda custody. Howes v. Fields, 132 S.
Ct. 1181, 1189–90 (2012); Maryland v. Shatzer, 559 U.S. 98, 112–13 (2010); see
also Berkemer v. McCarty, 468 U.S. 420, 436–37 (1984) (declining to “accord
talismanic power” to the phrase “freedom of action”). “Custody” for
Miranda purposes “is a term of art that specifies circumstances that are
thought generally to present a serious danger of coercion.” Howes, 132
S. Ct. at 1189. Miranda custody requires not only curtailment of an
individual’s freedom of action, but also an environment that “presents the
same inherently coercive pressures as the type of station house questioning
at issue in Miranda.” Id. at 1189–90. For this reason, the Court has held that
individuals are not in Miranda custody when they are subjected to traffic

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                             Opinion of the Court

stops and investigative detentions – sometimes referred to as “Terry stops.”
Shatzer, 559 U.S. at 113 (citing Terry v. Ohio, 392 U.S. 1 (1968)); United States
v. Sharpe, 470 U.S. 675, 677–78, 685–87 (1985).

¶13          Consistent with Supreme Court precedent, we must consider
both whether Maciel’s freedom of action was significantly curtailed and, if
so, whether the environment in which he was questioned presented
inherently coercive pressures similar to a station house interrogation.

                                       B.

¶14            A person’s freedom of movement has been significantly
curtailed if “a reasonable person would have felt he or she was not at liberty
to terminate the interrogation and leave.” Howes, 132 S. Ct. at 1189 (quoting
Thompson v. Keohane, 516 U.S. 99, 112 (1995)). To determine how a suspect
would have gauged his or her freedom of movement, we must evaluate “all
of the circumstances surrounding the interrogation,” not just the three
factors identified in Cruz-Mata. See id. (quoting Stansbury v. California, 511
U.S. 318, 322 (1994)).

¶15           Under the circumstances here, a reasonable person would not
have felt he or she was at liberty to end the encounter with Officer Huntley
and leave – a point conceded by the State and confirmed by the record.
After asking Maciel for identification and to submit to a pat-down search
for weapons, Officer Huntley asked Maciel to sit in the back of the patrol
car. The officer did not recall if the door was opened or closed, but he
remained nearby while Maciel was inside. After a couple of minutes,
Officer Huntley asked Maciel to get out and sit on the curb by the vacant
building. The second officer stood nearby Maciel while Officer Huntley
and the third officer checked the building. Maciel was under constant
police supervision from the time Officer Huntley first spoke to him. No
reasonable person would have felt free to simply walk away.

                                       C.

¶16            That Maciel’s freedom of movement was significantly
curtailed does not end our analysis. Miranda custody also requires an
environment presenting “inherently coercive pressures” that threaten to
subjugate the individual to the examiner’s will. Howes, 132 S. Ct. at 1189–
90; Shatzer, 559 U.S. at 112–13; Miranda, 384 U.S. at 467. Various objective

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                             STATE V. MACIEL
                            Opinion of the Court

factors can create an inherently coercive environment, and the Supreme
Court has noted that no one factor controls. E.g., Howes, 132 S. Ct. at 1189;
Stansbury, 511 U.S. at 321–22. But central to Miranda’s concerns are
incommunicado or prolonged interrogations intended to undermine a
subject’s will to resist self-incrimination. E.g., Berkemer, 468 U.S. at 438–39;
Howes, 132 S. Ct. at 1190–91; Shatzer, 559 U.S. at 113–14; Miranda, 384 U.S. at
448–51, 457–58.

¶17            Recognizing the coercive pressures inherent in custodial
interrogation, courts begin by considering two police tactics intended to
provide a psychological advantage over the subject: questioning in
unfamiliar surroundings and isolation. Miranda, 384 U.S. at 448–50. Howes
explained that “[i]n the paradigmatic Miranda situation – a person is
arrested in his home or on the street and whisked to a police station for
questioning – detention represents a sharp and ominous change, and the
shock may give rise to coercive pressures.” 132 S. Ct. at 1190. In contrast,
coercion is often lacking when a person is questioned in familiar
surroundings. Id. at 1190–91. Thus, Howes held that prisoners questioned
in their place of incarceration are not categorically in Miranda custody, even
though their freedom of action has been significantly restrained. Id. at 1191;
see also Shatzer, 559 U.S. at 112–13.

¶18            Similarly, exposure to public view during questioning can
dispel the danger of coercion. E.g., Berkemer, 468 U.S. at 438–39 (explaining
that “exposure to public view” offsets the dangers of coercion because it
“both reduces the ability of an unscrupulous policeman to use illegitimate
means to elicit self-incriminating statements and diminishes the [subject’s]
fear that, if he does not cooperate, he will be subjected to abuse”). Partly
for this reason, investigative stops conducted in public often do not
constitute Miranda custody. Id. at 438–40.

¶19            The length of interrogation is also relevant. The temporary
and relatively nonthreatening detention associated with traffic and
investigative stops does not constitute Miranda custody. See Shatzer, 559
U.S. at 113; Howes, 132 S. Ct. at 1190; Berkemer, 468 U.S. at 440; Sharpe, 470
U.S. at 677–78, 685–87. In contrast, even questioning in public may
constitute a de facto arrest when an investigative detention is unreasonably
prolonged. State v. Boteo-Flores, 230 Ariz. 105, 106, 280 P.3d 1239, 1240
(2012). No rigid time limit controls the analysis. Sharpe, 470 U.S. at 685–86;
Boteo-Flores, 230 Ariz. at 108 ¶¶ 14–15, 280 P.3d at 1242. Instead, “common

                                       6
                             STATE V. MACIEL
                            Opinion of the Court

sense and ordinary human experience must govern.” Sharpe, 470 U.S. at
685. “In assessing whether a detention is too long in duration to be justified
as an investigative stop,” we examine whether the police “diligently
pursued a means of investigation that was likely to confirm or dispel their
suspicions quickly.” Id. at 686; Boteo-Flores, 230 Ariz. at 108 ¶ 15, 280 P.3d
at 1242.

¶20          This inquiry depends upon the circumstances to which police
are responding. Sharpe, 470 U.S. at 685–86; Boteo-Flores, 230 Ariz. at 108 ¶ 14,
280 P.3d at 1242. “If the purpose underlying a Terry stop – investigating
possible criminal activity – is to be served, the police must under certain
circumstances be able to detain the individual for longer than the brief time
period involved in Terry.” Sharpe, 470 U.S. at 685–86 (quoting Michigan v.
Summers, 452 U.S. 692, 700 (1981)). The ultimate question is whether the
police engaged in unreasonable delay during the investigation to gain an
advantage over the subject, thereby increasing the likelihood of self-
incrimination. See id.; see also Berkemer, 468 U.S. at 437–38, 438 n.27.

¶21            Here, Maciel was not questioned in isolation or in unfamiliar
surroundings. Officer Huntley first questioned Maciel exactly where he
found him – sitting on the ground near the broken window. Although
Maciel was asked to sit in the back of the officer’s patrol car – which was
parked adjacent to where Maciel had been sitting – he was only in the
vehicle for a “couple of minutes” and was not questioned during that time.
Maciel was not transported to a different location. Once the second officer
arrived, Maciel was allowed to get out and again sat on a curb near the
building. When Officer Huntley questioned him, Maciel was only feet from
where he was sitting when he was first contacted. This was not a
disorienting and “abrupt transport from the street” to a police-dominated
atmosphere like a station house. See Howes, 132 S. Ct. at 1190–91.

¶22            Maciel also was not interrogated while “cut off” from the
outside world. The entire encounter occurred in public and was at all times
visible to passersby. Such public questioning substantially offsets “the aura
of authority surrounding an armed, uniformed officer” that can otherwise
exert some pressure on a detainee to respond to questions. See Berkemer,
468 U.S. at 438.

¶23           Moreover, the officers did not unreasonably delay their
investigation. The officers were responding to a dispatch for a suspected

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                            Opinion of the Court

burglary. Such an investigation might reasonably require a slightly longer
investigative detention than a typical traffic or Terry stop. Cf. Sharpe, 470
U.S. at 685–86; Boteo-Flores, 230 Ariz. at 108 ¶ 14, 280 P.3d at 1242. The
investigative detention here – from the time Maciel was first asked to sit in
Officer Huntley’s patrol car until he was formally arrested – lasted less than
one hour. That duration alone does not turn the encounter into a de facto
arrest. See Boteo-Flores, 230 Ariz. at 108 ¶¶ 14–15, 109 ¶ 17, 280 P.3d at 1242–
43 (noting that reasonableness of detention depends upon the surrounding
circumstances).

¶24             Consistent with the motorist’s telephone report, Officer
Huntley encountered Maciel sitting near the vacant building. When the
officer first asked what he was doing, Maciel said he was “just sitting there”
and the broken window “was like that when he had come there.” Officer
Huntley acted reasonably in continuing the investigation. Within minutes,
the officers checked the building perimeter while Maciel sat on the curb
with another officer watching him. During this inspection – which itself
only took a few minutes – the church pastor arrived. He informed Officer
Huntley that the window was boarded up three days earlier. After
obtaining additional information from the pastor, Officer Huntley returned
to Maciel and again asked him about the window. Maciel then admitted
that he had pulled the board off the window and entered the building to
look for money.

¶25            Under these circumstances, the officers acted reasonably and
efficiently in the unfolding burglary investigation. See State v. Spreitz, 190
Ariz. 129, 143–44, 945 P.2d 1260, 1274–75 (1997) (holding that forty-five
minute Terry detention was reasonable under circumstances); see also Cruz-
Mata, 138 Ariz. at 373, 674 P.2d at 1371 (holding that interrogation in police
station for one and one-half hours did not amount to Miranda custody); State
v. Carter, 145 Ariz. 101, 106, 700 P.2d 488, 493 (1985) (holding interrogation
at police station for approximately one hour before Miranda warnings were
provided did not amount to custody or coercive environment).

¶26            Other objective factors indicative of Miranda custody are
absent here. The police presence was relatively modest; often only one
officer was with Maciel and there were never more than three at one time.
Cf. Berkemer, 468 U.S. at 438–39 (explaining that the presence of only one or
two officers diminishes a subject’s “sense of vulnerability” that leads to a
coercive environment). As in Berkemer, Maciel was never told that his

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                             STATE V. MACIEL
                            Opinion of the Court

detention was not temporary. Id. at 441–42. Maciel was asked only a few
questions, all within the scope of the investigation. Id. at 439, 442.

¶27            The police did not threaten force, make exaggerated displays
of authority, or otherwise employ coercive tactics. See Cruz-Mata, 138 Ariz.
at 373, 674 P.2d at 1371 (noting absence of such factors in finding no Miranda
custody); Carter, 145 Ariz. at 106, 700 P.2d at 493 (same); United States v.
Torres-Sanchez, 83 F.3d 1123, 1129 (9th Cir. 1996) (same). Maciel was not
handcuffed, moved from one location to another, or otherwise physically
restrained before he was formally arrested. See Howes, 132 S. Ct. at 1193
(noting lack of physical restraints weighs against finding Miranda custody);
Cruz-Mata, 138 Ariz. at 373, 674 P.2d at 1371 (same); Carter, 145 Ariz. at 106,
700 P.2d at 493 (same). Nor does the record suggest the police seized his
property (the shopping cart and its contents). Cf. State v. Farris, 849 N.E. 2d
985, 990 ¶ 14 (Ohio 2006) (noting, in finding Miranda custody, that officer
had seized car keys and told suspect he would be detained until officer
decided to return the keys).

¶28           That the pastor informed Officer Huntley that he would be
willing to pursue burglary charges is of no consequence. Miranda custody
does not turn on an officer’s undisclosed suspicions about a person’s
possible guilt. See Stansbury, 511 U.S. at 325–26. Conversely, “[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 questioned.” Id. at 325. Nothing
in the record indicates that Officer Huntley conveyed to Maciel that the
pastor was willing to press charges or that Huntley believed Maciel had
broken into the building.

¶29           In sum, the objective circumstances of Maciel’s curbside
questioning did not present “inherently coercive pressures” comparable to
the station house questioning in Miranda. The trial court did not err in
ruling that Maciel was not in custody and in denying his motion to
suppress. Because we agree with the ruling in this respect, we need not
address Maciel’s argument that, because his earlier statements violated
Miranda, his post-arrest statements should also have been suppressed based
on Missouri v. Seibert, 542 U.S. 600 (2004), or Oregon v. Elstad, 470 U.S. 298
(1985).




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                           STATE V. MACIEL
                          Opinion of the Court

                                   III.

¶30           We affirm the trial court’s order denying the motion to
suppress, affirm Maciel’s conviction and probationary term, and vacate the
opinion of the court of appeals.




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