lMPORTANT NOT|CE
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TH|S OP|N|ON |S DES|GNATED “NOT TO BE PUBL|SHED."
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PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(€),
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RENDERED: FEBRUARY 16, 2017
NOT TO BE PUBLISHED

§§upreme Tnuri of Beniuckg

2016-SC-000228-MR
LOUIS TORRES APPELLANT

ON APPEAL FROM FAYETTE CIRCUIT COURT
V. HONORABLE JAMES D. ISHMAEL, JR., JUDGE
NO. 14-CR-01189

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM CPINION OF THE COURT

AFFIRMING

On October 2, 2014, Sergeant Aaron Greenleaf was working as a
detective in the Special Victirn’s Unit of the Lexington Police Department. In
response to a call he received regarding a juvenile sexual assault, Sergeant
Greenleaf went to the hospital and spoke with the victim, Alexisl, who Was
eleven years’ old at the time. Her uncle, Louis Torres (Appellant), was identified
as a suspect. Sergeant Greenleaf, along with Sergeant Brotherton and a social
worker drove to Nicholasville to speak with Appellant. A uniformed

Nicholasville police office was also present.

 

1 Pseudonyms are being used to protect the anonymity of the child victim.

Once the two detectives arrived at Appellant’s residence around 3 A.M.,
they knocked on the door and were allowed inside by Appellant’s nephew,
Rene. The Appellant does not challenge the officers’ entry into the home. Rene
led the officers upstairs to Appellant’s room and knocked on the bedroom door.
Appellant, who had been awakened, opened the door. Sergeant Greenleaf
asked the uniformed Nicholasville officer to step outside because he didn’t want
Appellant to feel pressured. Sergeants Brotherton and Greenleaf were wearing
plain clothes and were carrying concealed weapons. Sergeant Greenleaf
informed Appellant that something had come up in the family and then asked
Appellant if he would accompany the officers to Lexington to speak with them.
Appellant said yes.

Appellant sat in the front passenger seat of an unmarked police car
during their journey to Lexington. Sergeant Brotherton informed Appellant on
multiple occasions that he was not under arrest. They spoke in English and
Spanish. Once they arrived at the Lexington police station, Sergeant Greenleaf
interviewed Appellant. Greenleaf informed Appellant that he was not under
arrest, that he was free to go, and that he did not want Appellant to think that
he was keeping him there against his will. Appellant was also provided an
incomplete recitation of the Miranda warnings. An interpreter was used during
this entire conversation. Appellant stated that he wanted to talk. At no time
during the two hour interview did Appellant ask to leave or be taken back to

his residence.

Appellant was arrested at the end of the interview and charged in Fayette
County with multiple counts of sexual abuse,

Prior to trial, Appellant filed a motion to suppress the interrogation
evidence. The Fayette Circuit Court made oral findings and ultimately
concluded that Appellant was not in custody for Miranda purposes. As a
result, Appellant entered a conditional guilty plea to three counts of first-degree
sexual abuse, reserving the right to appeal the trial court’s ruling on the
suppression motion. Appellant received a total sentence of twenty years’
imprisonment Appellant now appeals his judgment and sentence as a matter
of right pursuant to § 110(2)(b) of the Kentucky Constitution.

Motion to Suppress

The only issue before this Court is whether the trial court erred in
denying Appellant’s motion to suppress his interview with the police at the
Lexington police station, Of course, the underlying issue is whether Appellant
was in custody at the time of the interview or prior thereto. See Miranda v.
Arizona, 384 U.S. 436 (1966). We review the trial court’s factual findings for
clear error, but the question of custody is reviewed de novo. King v.
Commonwealth, 302 S.W.3d 649 (Ky. 2010) (reversed on other grounds).

In Smith 1). Commonwealth, we stated that “[c]ustody does not occur until
police, by some form of physical force or show of authority, have restrained
the liberty of an individual.” 312 S.W.3d 353, 358 (Ky. 2010) (citing Baker v.

Commonwealth, 5 S.W.3d 142, 145 (Ky. 1999)). The United States Supreme

Court has identified more precise factors indicating that a suspect is in

custody:

[T]he threatening presence of several officers; the display of a

weapon by an officer; the physical touching of the suspect; and the

use of tone of voice or language that would indicate that

compliance with the officer's request would be compelled.

Id. citing (United States v. Mendenhall, 446 U.S. 544, 554 (1980)).

In addition, Smith also identified several other factors for courts to consider:
(1) the purpose of the questioning; (2) whether the place of the
questioning was hostile or coercive; (3) the length of the
questioning; and (4) other indicia of custody such as whether the
suspect was informed at the time that the questioning was
voluntary or that the suspect was free to leave or to request the
officers to do so, whether the suspect possessed unrestrained
freedom of movement during questioning, and whether the suspect
initiated contact with the police or voluntarily admitted the officers
into the residence and acquiesced to their requests to answer some
questions.

Id. at 358-59 (citations omitted).

Nearly all of the aforementioned factors weigh in favor of the trial court’s

determination that Appellant was not in custody for Miranda purposes during

his initial confrontation, transport or questioning by the officers.

Appellant testified at the suppression hearing that he felt he had no
choice but to accompany the officers to Lexington. He also argues that he was
not fluent in English and therefore could not understand Sergeant Greenleaf’s
questioning, However, a recording of the encounter at Appellant’s residence
demonstrates that Appellant had no problem understanding Sergeant

Greenleaf’s English. In addition, Sergeant Greenleaf specifically asked the

uniformed officer to step outside because he didn’t want Appellant to feel

4

pressured. And although Appellant may have been surprised when he was
awoken by the presence of the officers inside his home, he does not challenge
the officers’ entry into the home. Moreover, nothing in the record indicates
that the officers threatened or physically contacted Appellant, nor did they
display a threatening presence at any time.

Appellant was also not in custody while he voluntarily traveled to
Lexington with the officers. Appellant was unrestrained and sat in the front
seat of the officer’s unmarked vehicle during the trip. In this regard, the
present case is similar to Peacher v. Commonwealth, 391 S.W.3d 821 (Ky.
2013). In Peacher, this Court held that the defendant was not in custody due
in part to the facts that the defendant “was not frisked and was in no way
compelled or restrained. He rode, rather, as a passenger in the front seat of
the detective`s unmarked vehicle.” Id. at 847. In addition, Sergeant Brotherton
informed Appellant on multiple occasions during the trip that he was not under
arrest.

Appellant testified that although he had been informed multiple times
that he was not under arrest, he did not feel that way. However, “[t]he test is
whether, considering the surrounding circumstances, a reasonable person
would have believed he or she was free to leave.” Smith, 312 S.W.3d at 358.
This is an objective test that is not dependent on a defendant’s subjective
belief. Considering the totality of the surrounding circumstances, Appellant

was not in custody during his transportation by the officers to Lexington.

Applying the factors discussed in Smith, it is similarly clear that, on
balance, Appellant was not in custody for Miranda purposes while he was being
interviewed at the police station. Although police stations are certainly not the
most relaxing venue for questioning, they are one of the most common. In
addition, nothing in the record indicates that the officers threatened or
physically contacted Appellant, nor did they display a threatening presence
during the interview. See Mendenhall, 446 U.S. at 554. Furthermore, the
interview lasted only two hours. This is not an unreasonable amount of time
for questioning,

In Beckham v. Commonwealth, for example, the Court determined that
the defendant was not in custody even though the defendant’s encounter with
the police lasted over six hours. 248 S.W.3d 547, 551 (Ky. 2008). In support
of its ruling, the Court noted that the interviewing officers informed the
defendant that he was free to leave, that the defendant never expressed any
desire to leave or cease his cooperation, and that the defendant was not
physically coerced by the officers. Id. at 551-53.

Similar to Beckham, the interrogating officer in the present case,
Sergeant Greenleaf, informed Appellant that he was not under arrest and that
he did not want Appellant to think that he was keeping Appellant there.
Appellant stated that he wanted to talk. At no time during the two hour
interview did Appellant ask to leave or be taken back to his residence. Under
these circumstances, “a reasonable person would have believed he or she was

free to leave.” Smith, 312 S.W.3d at 358.

6

Therefore, Appellant was not in custody and, thus, not entitled to
Miranda warnings. As such, Sergeant Greenleaf’s incomplete recitation of the
Miranda warnings prior to the interview was unnecessary and irrelevant for
purposes of the foregoing analysis. Accordingly, we affirm the trial court’s
denial of Appellant’s motion to suppress.

Conclusion

For the foregoing reasons, we hereby affirm the judgment and sentence

of the Fayette Circuit Court.

All sitting. All concur.

COUNSEL FOR APPELLANT:
Linda Roberts Horsman
Assistant Public Advocate
COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General of Kentucky

Courtney J. Hightower
Assistant Attorney General

