                                IN THE
              ARIZONA COURT OF APPEALS
                             DIVISION ONE


                    STATE OF ARIZONA, Appellee,

                                   v.

                CARLOS ANDRES MACIEL, Appellant.

                         No. 1 CA-CR 14-0243
                           FILED 9-10-2015


            Appeal from the Superior Court in Yuma County
                       No. S1400CR201300422
                The Honorable David M. Haws, Judge

                              AFFIRMED


                              COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael O’Toole
Counsel for Appellee

Yuma County Public Defender’s Office, Yuma
By Edward F. McGee
Counsel for Appellant



                              OPINION

Judge Kenton D. Jones delivered the opinion of the Court, in which Chief
Judge Michael J. Brown joined. Judge Peter B. Swann dissented.
                             STATE v. MACIEL
                            Opinion of the Court

J O N E S, Judge:

¶1             Carlos Maciel appeals his conviction and sentence on one
count of burglary in the third degree. Maciel contends the trial court erred
in denying his motions: (1) to suppress his statements to police, and (2) for
judgment of acquittal on the basis that the State failed to establish the corpus
delicti. For reasons set forth below, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2           On April 10, 2013, a motorist observed Maciel seated next to
a vacant building with a broken window. The motorist noticed the board
that previously covered the broken window had been removed and, aware
of prior break-ins at the building, called the police. An officer was
dispatched to what was reported as a possible burglary.

¶3            Upon arrival, and after speaking with the motorist, the officer
contacted Maciel, who was still seated a few feet from the broken window,
obtained his identification, and conducted a pat-down search for weapons.
Finding no weapons on or outstanding warrants for Maciel, the officer
asked him “what he was doing” and if he knew “how the board got
removed from the window.” Maciel replied that he was just sitting down
and denied any knowledge of the board being removed from the window.
The officer asked Maciel to sit in his patrol vehicle until another officer
arrived at the scene. A second officer arrived within minutes, and Maciel
was then asked to sit on the curb next to the building while the second
officer stood nearby. Maciel complied with the officer’s requests.

¶4             The pastor of the church on the property adjoining the vacant
building arrived and advised that the board had been in place over the
broken window three days earlier. With that additional information, the
first officer again asked Maciel about the window. Without further
prompting, Maciel admitted removing the board the day before and
entering the building to look for money. He stated that another male told
him to go inside, but Maciel alone had entered the building. Maciel was
then placed under arrest, handcuffed, and placed in the patrol vehicle.

¶5            Two officers then entered the building to search for evidence
of a burglary or persons possibly still in the building. Shoe prints inside
did not match the shoes worn by Maciel at the time of his arrest, and there
was no other evidence of entry. The pastor was unable to identify anything
missing or stolen.




                                       2
                             STATE v. MACIEL
                            Opinion of the Court

¶6            Then, the first officer went back to the patrol vehicle, advised
Maciel of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), and
again asked him about going into the building. Maciel again reported he
removed the board and entered the building. Maciel stated he pulled the
board off “by hand,” and when he was advised the shoe prints inside did
not match his shoes, Maciel stated “he hadn’t gone in very far.” The entire
investigation lasted approximately one hour.

¶7            Following a jury trial, Maciel was convicted of one count of
burglary in the third degree. 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. Maciel timely appealed.
We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections
12-120.21(A)(1),1 13-4031, and -4033(A)(1).

                               DISCUSSION

I.     Motion to Suppress

¶8            Before trial, Maciel moved to suppress his statements to the
police, arguing the officer engaged in an improper “two-step” interrogation
process by deliberately soliciting incriminating statements from him while
he was in custody but prior to providing Miranda warnings, and then re-
soliciting those same statements after he was arrested, in violation of
Missouri v. Seibert, 542 U.S. 600, 604 (2004). Following an evidentiary
hearing, the trial court determined Maciel’s statements were voluntary. It
further found Maciel’s pre-Miranda statements were not obtained during a
custodial interrogation, but rather resulted from permissible “on-the-scene
questioning.”

¶9             In doing so, the trial court specifically rejected Maciel’s two-
step Miranda violation argument, finding the questioning during the on-
scene investigation did not constitute a “first Miranda violation,” and there
was no evidence the officer intended to engage in improper or coercive
tactics. The court reasoned: “The second questioning [at the curb] had come
after [the officer] knew somewhat more about the circumstances,” had
“some questions” about the truthfulness of Maciel’s initial statements, and
was “simply following up.” The court noted favorably that “[a]s soon as
[Maciel] made statements that gave the officer probable cause for arrest, he
ceased questioning, and then before he reinitiated questioning, he advised


1     Absent material revisions from the relevant date, we cite a statute’s
current version.


                                      3
                              STATE v. MACIEL
                             Opinion of the Court

[Maciel] of his Miranda rights.” Thus, the court concluded all of Maciel’s
statements were admissible.

¶10             Maciel argues on appeal that the trial court’s ruling is
erroneous, and his statements were both involuntary and obtained in
violation of Miranda. We review the trial court’s decision to admit
statements of a defendant for an abuse of discretion. State v. Ellison, 213
Ariz. 116, 126, ¶ 25 (2006) (citing State v. Jones, 203 Ariz. 1, 5, ¶ 8 (2002)). In
doing so, we consider only the evidence presented at the suppression
hearing and view it in the light most favorable to upholding the trial court’s
ruling. Id. (citing State v. Hyde, 186 Ariz. 252, 265 (1996)). We defer to the
trial court’s factual findings, but review its legal conclusions de novo. State
v. Box, 205 Ariz. 492, 495, ¶ 7 (App. 2003) (citing State v. Valle, 196 Ariz. 324,
326, ¶ 6 (App. 2000)).

       A.      Maciel Was Not in Custody During the Officer’s Initial
               Inquiry or While Waiting at the Curb.

¶11             Before police engage in “custodial interrogation,” or
“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,” the suspect must be given a Miranda warning. State v.
Kennedy, 116 Ariz. 566, 568-69 (App. 1977) (citing Miranda, 384 U.S. at 444,
and State v. Bainch, 109 Ariz. 77, 79 (1973)). While the circumstances of each
case will determine whether a suspect is in custody for the purpose of
triggering Miranda warnings, being “in custody” is an objective condition
with “the ultimate inquiry [being] simply whether there is a ‘formal arrest
or restraint on freedom of movement’ of the degree associated with a formal
arrest.” State v. Cruz-Mata, 138 Ariz. 370, 372-73 (1983) (quoting California
v. Beheler, 463 U.S. 1121, 1125 (1983)); see also Kennedy, 116 Ariz. at 569 (“‘The
vital point is whether, examining all the circumstances, the defendant was
deprived of his freedom of action in any significant manner, and the
defendant was aware of such restraint.’”) (quoting Bainch, 109 Ariz. at 79).

¶12            When determining whether questioning is actually custodial,
there is no one factor that controls whether a person is in custody; rather,
we consider objective factors, the most important being: (1) the site of the
interrogation; (2) whether objective indicia of arrest are present; and (3) the
length and form of the interrogation. Cruz-Mata, 138 Ariz. at 373
(approving three of four factors identified in Kennedy). In our consideration
of these factors, we bear in mind the purpose of Miranda warnings: to curtail
involuntary admissions elicited through mental or physical intimidation.




                                        4
                             STATE v. MACIEL
                            Opinion of the Court

See Kennedy, 116 Ariz. at 569 (citing State v. Tellez, 6 Ariz. App. 251, 255
(1967)).

¶13           Maciel first disputes the trial court’s findings that he was not
in custody either when he was asked to sit in the patrol vehicle or when he
was thereafter asked to sit at the curb. However, the transcript of the
hearing demonstrates the court fully considered the circumstances before
concluding that Maciel was not in custody prior to his formal arrest. The
record supports this conclusion.

¶14            At the suppression hearing, the officer testified he was
initially the only officer on the scene and had no idea whether Maciel was
involved in any crime or whether there was anyone inside the building. He
therefore asked Maciel to sit in the patrol vehicle for “both of our safety,”
explaining they both would be in danger if an armed person emerged from
the building. Maciel was not handcuffed, was not escorted to or placed in
the patrol vehicle by the officer, and was not under arrest. The officer did
not question Maciel while he was in the patrol vehicle, but simply
“watch[ed] the building just to see if anyone came out.” Within minutes,
another officer arrived, and the first officer asked Maciel to exit the patrol
vehicle and sit on the curb next to the building while the other officer stood
nearby.

¶15            In Cruz-Mata, our supreme court affirmed a trial court’s ruling
that a defendant was not in custody where he agreed to accompany an
officer to the police station for questioning, was transported in a patrol
vehicle, and was questioned for approximately ninety minutes before
confessing. 138 Ariz. at 373. Although a police station could be considered
a “coercive environment,” the court found no other objective indicia of
arrest: “Defendant was not subjected to the booking process, nor were
physical restraints such as handcuffs used, nor was a weapon drawn.” Id.
The court further noted “no force, threat[] or other compulsion” was used
to elicit responses. Id. This analysis compels a similar conclusion here.

¶16           The trial court found the officer’s initial questions to Maciel
were not an interrogation but rather, reasonable “on-the-scene
questioning” to assess the situation. See State v. Morse, 127 Ariz. 25, 28
(1980) (excluding general, on-the-scene questioning during a criminal
investigation from the definition of custodial interrogation). The record is
clear that Maciel was near the broken window when the motorist made his
report and remained there when the officer arrived. As the only law
enforcement officer at the scene of an alleged burglary, it was an
appropriate first step for the officer to ask Maciel what he knew about the


                                      5
                             STATE v. MACIEL
                            Opinion of the Court

removal of the board, just as the officer questioned the pastor as to the issue
upon his arrival.

¶17            Once the officer observed evidence of a potential illegal entry,
the building and the surrounding area became the scene of a criminal
investigation over which he was in control. Rather than direct Maciel to
leave the crime scene or allow him to continue to sit by the open window
when an intruder might still be inside, the officer asked Maciel to sit in the
patrol vehicle where the officer believed he would be safer. The trial court
accepted the officer’s testimony, and we defer to its assessment of witness
credibility, especially where, as here, none of the objective indicia of arrest
were present. See Pima Cnty. Juv. Action No. 63212-2, 129 Ariz. 371, 375
(1981) (“The deference which appellate courts accord the trier of fact,
whether judge or jury, to make determinations based on assessments of the
credibility of witnesses is elementary.”) (citations omitted). Moreover, the
record supports the determination that safety was the officer’s concern.2
Following his direction to Maciel, the officer did not, himself, breach the
building but simply watched and waited to enter until another officer
arrived, asking no further questions of Maciel throughout that period. The
court implicitly found Maciel was not in custody while in the patrol vehicle,
and the conclusion is supported by the record. See State v. Zamora, 220 Ariz.
63, 67, ¶ 7 (App. 2009) (noting we will infer findings necessary to affirm the
trial court as long as there is no conflict with any express findings) (citing
State v. Ossana, 199 Ariz. 459, 461, ¶ 8 (App. 2001), and Coronado Co. v.
Jacome’s Dep’t Store, Inc., 129 Ariz. 137, 139 (App. 1981)).

¶18            Turning to the curb-side questioning, the record shows the
trial court fully considered the cumulative effect of Maciel’s interactions
with the police before considering whether he was in custody while sitting
at the curb. The court began its analysis by noting Maciel had been in the
patrol vehicle for safety reasons and had not been handcuffed, reiterating
its conclusion that Maciel was not then in custody. After considering anew
the relevant “indicia of custody,” the court then determined Maciel was
likewise not in custody while sitting at the curb. Again, Maciel was not
handcuffed or told he was under arrest, no weapons were drawn, no
physical force was used, and there was nothing coercive or inherently
threatening about the curb itself. There is nothing in the record to suggest

2       Contrary to the concerns expressed in the dissent, infra ¶ 44, the
officer did articulate a potential danger in allowing Maciel to remain seated
by the uncovered window, noting: “If someone had emerged from the
broken window and I had to contact them and if they were armed, we might
have . . . both been in danger in the close proximity to the window.”


                                      6
                             STATE v. MACIEL
                            Opinion of the Court

the second officer was directed to treat Maciel as if he were in custody or
that the second officer believed Maciel to be in custody. Nor can the
testimony that Maciel “sat by the building with [the second officer],”
viewed in the light most favorable to upholding the conviction, reasonably
support the dissent’s statements, infra ¶¶ 36, 44, that the second officer
“stood guard” or “watched over” Maciel while he sat on the curb.
Additionally, the “length and form of the interrogation,” consisting of “two
or three questions” that lasted “a few moments, at most,” did not
objectively indicate Maciel was in custody. The court thus concluded,
“[g]iven all of those circumstances . . . the questioning that took place in the
second part of the interrogation after [Maciel] had been taken out of the
police car and seated on the curb was not a custodial interrogation.”

¶19            Again, the record reflects the area remained an active crime
scene. It was reasonable for the officer to control the movement of any
persons within the area when he did not and could not have known who or
what danger may have been inside. Having Maciel remain at the curb with
an officer who could prevent him from wandering around the crime scene
provided a degree of safety to everyone. Cf. State v. Johnson, 220 Ariz. 551,
557 (App. 2009) (noting law enforcement officer “must be able to control the
scene of a traffic stop to protect the driver, passengers, and the public in
general”) (citing Arizona v. Johnson, 555 U.S. 323, 333 (2009)).

¶20           Moreover, the curb-side questioning occurred only after the
officer was advised by the pastor that the board had been on the window
three days earlier. It was not improper for the officer, armed with
additional information, to return to Maciel and attempt to further narrow
the timeframe during which the board may have been removed and the
crime committed. Maciel then, without further prompting, admitted
removing the board. With that, the questioning of Maciel ceased and he
was placed under arrest. In the absence of any testimony or evidence that
Maciel was improperly compelled to answer the officer’s questions, the trial
court’s determination that Maciel was not in custody at the time the first
officer asked him for additional information is supported by the evidence.3




3     Even if the record could be reasonably read to conclude the officer
“was also encouraging a third party [the pastor] to pursue a speculative
criminal complaint against the individual who was the focus of his care
[Maciel],” infra ¶ 44, it would be irrelevant to a determination of whether
an objectively reasonable defendant would have believed he was “in
custody” at the time of questioning.


                                       7
                             STATE v. MACIEL
                            Opinion of the Court

       B.     The Officer Did Not Engage in a Two-Step Interrogation
              Process Under Seibert or Elstad.

¶21            The trial court next considered Maciel’s argument that the
officer engaged in a two-step interrogation process prohibited by Seibert —
the first occurring at the curb, and the second following Maciel’s formal
arrest. In Seibert, the U.S. Supreme Court examined the propriety of a police
protocol whereby officers were instructed not to give Miranda warnings
until their interrogation produced a confession that, although admittedly
inadmissible, was then used to coerce “the suspect to cover the same
ground[] a second time” after Miranda warnings were given. 542 U.S. at
604. A plurality of the Supreme Court held: “The impression that the
further questioning was a mere continuation of the earlier questions and
responses” creates a coercive environment, depriving a reasonable person
of a true sense of choice to remain silent. Id. at 616-17. Therefore, post-
warning statements obtained in such a fashion are inadmissible. Id.

¶22           We find no merit in Maciel’s argument. First, having
concluded there was no “first Miranda violation” because Maciel was not in
custody during the curb-side questioning, there cannot, by definition, have
been a second Miranda violation that would implicate the two-step
interrogation process discussed in Seibert. See supra ¶¶ 18-20.

¶23            Second, even assuming Maciel was in custody during the
curb-side questioning, no evidence was presented to suggest either the
police department generally, or the officer individually, engaged in any
deliberate tactic to withhold Miranda warnings, or that the officer used pre-
Miranda statements to pressure Maciel during the post-Miranda
questioning. To the contrary, the trial court specifically determined “there
was no malic[e] or intent by the officer trying to subvert Miranda by
questioning without Miranda and then later going back to questioning with
Miranda.” This finding is supported by the record. Indeed, it is only with
the benefit of hindsight — a luxury not available to law enforcement officers
attempting to conduct a thorough investigation, nor instructive in our
analysis — that the officer could have known Maciel would volunteer
incriminating statements.

¶24           Finally, because no evidence exists here of the deliberate use
of a two-step procedure as addressed in Seibert, the proper test is that set
forth in Oregon v. Elstad, 470 U.S. 298 (1985). Zamora, 220 Ariz. at 70, ¶ 18.
Under Elstad, the trial court must determine: (1) whether the initial, pre-
Miranda warning statements were coerced, and if so, (2) whether “the taint
from such coercion has not dissipated through the passing of time or a


                                      8
                              STATE v. MACIEL
                             Opinion of the Court

change in circumstances.” Elstad, 470 U.S. at 314. If the initial statements
were coerced, and the coercion did not dissipate through the passing of
time or change in circumstances, all of the statements must be suppressed.
Id. However, “a suspect who has once responded to unwarned yet
uncoercive questioning is not thereby disabled from waiving his rights and
confessing after he has been given the requisite Miranda warnings.” Id. at
318. Therefore, if uncoerced statements are made pre-Miranda, they are
nonetheless admissible if voluntarily repeated post-Miranda. Id.

¶25           As noted above, reasonable evidence supports the trial court’s
finding that Maciel’s statements at the curb were not coerced. See supra
¶¶ 18-20. After placing Maciel in custody and following additional
investigation, the officer properly provided Miranda warnings before
questioning Maciel further. Maciel then voluntarily chose to speak further
with law enforcement and waived his Miranda rights. We find no error in
the admission of Maciel’s subsequent statements.

¶26          Giving due deference to the trial court’s factual findings, we
find no abuse of discretion in the admission of Maciel’s statements to law
enforcement.

II.    Denial of Motion for Judgment of Acquittal

¶27             Maciel next argues the trial court erred in denying his motion
for judgment of acquittal, alleging no corpus delicti or physical evidence
supports his admission that he removed the board and entered the
building. He essentially asserts insufficient evidence was presented to
support his conviction because there is no proof that anything was actually
missing from the building or that he had an intent to commit a theft. We
review the denial of a motion for judgment of acquittal based upon the
corpus deliciti doctrine for an abuse of discretion. State v. Jones ex rel. Cnty.
of Maricopa, 198 Ariz. 18, 23, ¶ 13 (App. 2000) (citing State v. Gerlaugh, 134
Ariz. 164, 170 (1982), and Adolfson v. United States, 159 F.2d 883, 888 (9th Cir.
1947)).

¶28           “A defendant may not be convicted of a crime based on an
uncorroborated confession without independent proof of the corpus delicti,
or the ‘body of the crime.’”4 State v. Morgan, 204 Ariz. 166, 170, ¶ 15 (App.


4      The State urges us to hold the corpus delicti doctrine is no longer
viable in Arizona. However, our supreme court still recognizes the
applicability of the doctrine, see State v. Morris, 215 Ariz. 324, 333, ¶¶ 33-36



                                       9
                              STATE v. MACIEL
                             Opinion of the Court

2002) (citing State v. Gillies, 135 Ariz. 500, 506 (1983), and Jones, 198 Ariz. at
2, ¶ 12). However, under Arizona’s “corroborative approach,” before
incriminating statements may be considered, the State’s proof need
establish only a reasonable inference the crime was actually committed.
Morris, 215 Ariz. at 333, ¶ 34 (citing State v. Hall, 204 Ariz. 442, 453, ¶ 43
(2003)). Such evidence may be circumstantial, id. (citing Hall, 204 Ariz. at
453, ¶ 43), and “need not be of the quantum of proof beyond a reasonable
doubt,” Jones, 198 Ariz. at 22, ¶ 12 (citing Gerlaugh, 134 Ariz. at 170).

¶29           Applying the corroborative approach, the trial court properly
found the State had presented “sufficient corroboration of the admission[s]
to get past the corpus delicti issue.” In support of its finding, the court
referenced evidence that Maciel was seen “right next to the window with
the board taken off.” Additionally, there were shoe prints inside, providing
evidence that entry was made into the building. Although the shoe prints
did not match the shoes Maciel was wearing when he was arrested, the
court noted Maciel had stated he went in the day before, when he could
have been wearing different shoes. Additional circumstantial evidence also
creates a reasonable inference a burglary was committed around the time
Maciel was observed near the un-boarded window, including: (1)
testimony that the pastor had seen the board in place on the window when
he was at the church three days prior, indicating the board was only
recently removed; (2) physical evidence that the board had been nailed over
the window and required active efforts to physically detach; (3) testimony
that the building was used primarily for storage purposes and access
through the window led to the basement storage area; and (4) evidence that
the maintenance man who walked the property twice a week had not
reported seeing anything “out of place” before the incident.

¶30           The State’s evidence, while circumstantial, provided a
reasonable inference a burglary had occurred and corroborated Maciel’s
voluntary statements. Therefore, we find no abuse of discretion in the trial
court’s denial of Maciel’s motion for judgment of acquittal.

                                CONCLUSION

¶31           For the foregoing reasons, we affirm Maciel’s conviction and
sentence.



(2007), and we have no authority to overrule its direction, State v. Foster, 199
Ariz. 39, 41 n.1, ¶ 9 (App. 2000) (citing Myers v. Reeb, 190 Ariz. 341, 342 (App.
1997)).


                                       10
                              STATE v. MACIEL
                             Swann, J., Dissenting

S W A N N, Judge, dissenting:

¶32           I respectfully dissent. The officers in this case subjected
Maciel to custodial interrogation and did not issue Miranda warnings until
after he had made incriminating statements. The statements should have
been suppressed, and the conviction should be reversed and remanded.

                        FACTUAL BACKGROUND

¶33            At the suppression hearing, Officer Huntley testified that
once he arrived at the scene, he noticed Maciel sitting on the ground outside
the church with a shopping cart containing personal items. Huntley
contacted Maciel and asked him what he was doing. Maciel replied that he
was just sitting next to the building. Huntley then asked Maciel about the
window and Maciel stated that it was already damaged when he arrived at
the church. Maciel was homeless, and as a part of his initial investigation,
Huntley asked him questions about the shopping cart containing his
personal possessions. To this point, I agree that there had been no custodial
interrogation -- the Supreme Court has “explicitly excluded general on-the-
scene questioning for the purpose of investigating crime from its definition
of ‘custodial interrogation.’” Morse, 127 Ariz. at 28.

¶34           Huntley then asked for Maciel’s identification and ran a
warrants check, which came back clear, and then, with Maciel’s consent,
conducted a pat-down search, which produced no weapons or other
evidence of contraband. Huntley stated that he then had Maciel sit in the
backseat of his patrol vehicle “[b]ecause [he] didn’t know if [Maciel] was
involved at that point in a crime and [he] didn’t know if there was anyone
inside the building.”

¶35          Whether one believes Huntley’s testimony or not, the act of
placing an individual (especially one whose identification and warrant
status raised no suspicions) in the back of a police car is inherently
inconsistent with the reasonable freedom of movement that citizens
normally have a right to expect.5 I think it fair to say that most people who


5      I find Cruz-Mata distinguishable in this regard. In that case, the
defendant affirmatively accepted an invitation to travel to a police station
with an officer in the front seat of a police car. 138 Ariz. at 373. Here, Maciel
was placed in the back of a police car. The only “agreement” to enter the
back of the car in this record was Maciel’s failure to object. The purpose of
Maciel’s presence in the police car was not mere transportation as in Cruz-
Mata -- it was confinement.


                                       11
                            STATE v. MACIEL
                           Swann, J., Dissenting

walk by, sit or stand near a building missing a board over its window do
not reasonably expect to be confined in a police vehicle merely because the
police “do not know” if they have been involved in a crime. And I daresay
that many citizens routinely find themselves in the proximity of buildings
with missing windows, yet they would reasonably believe themselves to be
in custody if this simple fact landed them in the back of a police car.

¶36           When Ofc. Franklin arrived on the scene, Huntley “asked Mr.
Maciel to exit the patrol vehicle and sit down on the curb next to the
building” with Franklin watching over him. Ofc. Sanchez then arrived and
she and Huntley conducted an initial search of the building while Franklin
stood guard over Maciel. Though no longer within the confines of a police
cruiser, Maciel was forced to wait for approximately an hour, under guard,
while the police conducted an investigation that did not reasonably concern
him. This too was inconsistent with an individual’s reasonable freedom of
movement.

¶37            In these circumstances, I cannot agree with the majority that
Maciel was not “deprived of his freedom of action in any significant way.”
Kennedy, 116 Ariz. at 569. When law enforcement officers place an
individual in a police vehicle, then ask him to remain in a specific location
while they stand guard, any remaining “freedom of action” is a pure legal
fiction. Though there had not been a formal arrest at this point, neither was
Maciel free to leave. He was, by any reasonable measure, in custody while
the officers sought grounds to arrest him.

¶38           The pastor of the church then arrived and told Huntley that
the window had been boarded up a few days earlier. Huntley asked the
pastor if he would be willing to pursue a complaint against Maciel if
Huntley found out that Maciel was the individual who had removed the
board from the window. Huntley stated that he asked this question because
if the pastor was not willing to be the victim of a crime, there was “really
not any reason to detain or to do any further investigation.”

¶39           Huntley then questioned Maciel again about the window and
Maciel replied that “he pulled [the board] off because he went in to find
some money.” Huntley placed Maciel under arrest, handcuffed him, and
placed him in the back of his patrol car for the second time. Huntley cleared
the building and looked for shoe impressions. When Huntley went back to
his vehicle to speak with Maciel, he advised Maciel of his Miranda rights
and continued to question him. Maciel admitted for the second time that
he had pulled the board off the window and entered the building.




                                     12
                              STATE v. MACIEL
                             Swann, J., Dissenting

                                  ANALYSIS

¶40           The court denied Maciel’s motion to suppress, citing three
factors. The first factor was the site of the interrogation, which the court
did not find was indicative of custody because the questioning took place
at the church, and although Maciel was placed in a police car for a time, he
was later “allowed to sit on the curb.” The second factor was whether other
objective indicia of arrest were present. The court found that Maciel was
not handcuffed and was not told he was under arrest, and that therefore
objective indicia of arrest were not present. And third, the court found the
length and form of interrogation to be brief -- despite the fact that Maciel
was detained for at least an hour. The court also stated that because
Huntley testified that he did not believe Maciel was in custody when he re-
questioned him, “the questioning that took place in the second part of the
interrogation . . . was not a custodial interrogation.”

¶41            “Whether a defendant is in custody such that Miranda
warnings are required to be given is determined by an objective test of
whether a reasonable person would feel deprived of his freedom in a
significant way.” State v. Perea, 142 Ariz. 352, 354 (1984). “[T]he initial step
is to ascertain whether, in light of ‘the objective circumstances of the
interrogation,’ a ‘reasonable person [would] have felt he or she was not at
liberty to terminate the interrogation and leave.’” Howes v. Fields, 132 S. Ct.
1181, 1189 (2012) (citations omitted). To determine how a suspect would
have gauged his freedom to leave, “courts must examine ‘all of the
circumstances surrounding the interrogation.’ Relevant factors include the
location of the questioning, its duration, statements made during the
interview, the presence or absence of physical restraints during the
questioning, and the release of the interviewee at the end of the
questioning.” Id. (citations omitted) (emphasis added). In its analysis of
Maciel’s motion to suppress, the trial court and the majority examine three
of these “relevant factors,” but they give inadequate weight to the totality
of the circumstances.

¶42           “[A]s the Arizona Supreme Court has recognized . . . when
the on-the-scene questioning becomes accusatory in nature and when a
reasonable man would feel he was deprived of his freedom of action in a
significant way . . . Miranda warnings must be given.” State v. Starr, 119
Ariz. 472, 475 (App. 1978). And “[i]n assessing whether a detention is too
long in duration to be justified as an investigative stop, we consider it
appropriate to examine whether the police diligently pursued a means of
investigation that was likely to confirm or dispel their suspicions quickly, during



                                        13
                            STATE v. MACIEL
                           Swann, J., Dissenting

which time it was necessary to detain the defendant.” United States v.
Sharpe, 470 U.S. 675, 686 (1985) (emphasis added).

¶43           Here, Huntley initially detained Maciel and questioned him
regarding his identity, searched him for weapons, and asked him if he was
involved in removing the board from the window. This initial investigation
produced no evidence that Maciel was involved in a crime and there was
no basis upon which to further detain him. At this point, Huntley’s
detention of Maciel should have ended.

¶44          But the majority reasons:

      Once the officer observed evidence of a potential illegal entry,
      the building and the surrounding area became the scene of a
      criminal investigation over which he was in control. Rather
      than direct Maciel to leave the crime scene or allow him to
      continue to sit by the open window when an intruder might
      still be inside, the officer asked Maciel to sit in the patrol
      vehicle where the officer believed he would be safer.

I respectfully disagree with this analysis. If every building that might have
experienced a broken window days earlier constituted a crime scene of
which the police are “in control,” then large areas of many communities in
this state would perpetually be crime scenes under police control, and any
passersby would automatically be subject to uncontrolled restraints on their
freedom. The majority cites no authority for this sweeping proposition, and
I cannot endorse it. The majority also apparently accepts Huntley’s
suggestion that he placed Maciel in the police cruiser for his safety. With
due deference to the trial court’s fact-finding role, there was simply no
articulable danger to Maciel in these circumstances. The fact that an empty
building may have had its window covering removed in the preceding 72
hours presented no clear and present threat to Maciel’s safety. And while
such acute vigilance in protecting citizens’ safety from even inarticulable
threats might be laudable in the abstract, that protective motive was
tempered by the fact that Huntley was also encouraging a third party to
pursue a speculative criminal complaint against the individual who was the
focus of his care. Notably, the only other civilian at the scene, the pastor,
was not asked to sit on the curb for “safety purposes” while another officer
watched over him -- he was free to leave and did so.

¶45          In truth, police were not “diligently pursuing a
means of investigation likely to confirm or dispel their suspicions quickly.”
This detention had far exceeded the time and scope of a general on-the-



                                     14
                             STATE v. MACIEL
                            Swann, J., Dissenting

scene investigation and moved into a custodial interrogation when Huntley
initiated his second round of questioning. See Zamora, 220 Ariz. 63, 68, ¶ 10
(App. 2009) (defining custodial interrogation 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”
(citation omitted)).

¶46            A suspect’s right not to incriminate himself does not come
into existence only after he has expressed a desire not to have that right
violated. “[U]nless other fully effective means are devised to inform
accused persons of their right of silence and to assure a continuous
opportunity to exercise it, the following measures are required. Prior to any
questioning, the person 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.” Miranda, 384 U.S. at 444 (emphasis added). Nowhere in
Miranda did the court hold that a suspect must object to his detention before
these warnings must be given or that a suspect must express a desire to
leave before he is considered to be in custody. Though a suspect’s reaction
to restraints on his liberty is a factor that may be relevant in a totality-of-
the-circumstances analysis, it was hardly the most important factor in these
circumstances. Miranda imposes on the police an obligation to provide
warnings proactively -- the rule simply does not work if the suspect has any
obligation to demand those warnings.

¶47           The totality of the circumstances make clear that a reasonable
person would not have felt free to terminate the encounter with Huntley.
Maciel, a homeless man, was detained by multiple officers with all of his
possessions for at least an hour while multiple police officers arrived on the
scene and asked him the same questions multiple times. For part of this
time, he was placed in the back of a police car -- an environment from which
no reasonable person would feel free simply to get out and leave. Then, a
police officer was assigned to watch him while he sat on a curb, further
enforcing the reasonable perception that he was not free to leave. During
the second interrogation, Maciel was concededly in custody but was not
given Miranda warnings until he had already made inculpatory statements.
His statements should have been suppressed.

¶48           In Seibert, the court held that “the midstream recitation of
[Miranda] warnings after interrogation and unwarned confession could not
effectively comply with Miranda’s constitutional requirement,” and
therefore, “a statement repeated after a warning in such circumstances is
inadmissible.” 542 U.S. at 604. The court held that “unless the warnings


                                      15
                              STATE v. MACIEL
                             Swann, J., Dissenting

could place a suspect who has just been interrogated in a position to make
[ ] an informed choice [to stop talking], there is no practical justification for
accepting the formal warnings as compliance with Miranda, or for treating
the second stage of interrogation as distinct from the first, unwarned and
inadmissible segment.” Id. at 612. The court further reasoned that, “[u]pon
hearing warnings only in the aftermath of interrogation and just after
making a confession, a suspect would hardly think he had a genuine right
to remain silent, let alone persist in so believing once the police began to
lead him over the same ground again. A more likely reaction on a suspect’s
part would be perplexity about the reason for discussing rights at that
point, bewilderment being an unpromising frame of mind for
knowledgeable decision.” Id. at 613 (footnote omitted).

¶49            Under Seibert, the third interrogation (post-Miranda) could
not sanitize the inculpatory statements that Maciel had already made, and
all of the inculpatory statements should therefore have been suppressed.

¶50           For these reasons, I respectfully dissent.




                                    :ama




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