               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA15-1173

                                 Filed: 19 July 2016

Gaston County, No. 13CRS050737

STATE OF NORTH CAROLINA

              v.

RICO LAMAR BARNES, Defendant.


        Appeal by Defendant from judgment entered 1 June 2015 by Judge Robert T.

Sumner in Gaston County Superior Court. Heard in the Court of Appeals 30 March

2016.


        Attorney General Roy A. Cooper, III, by Assistant Attorney General Yvonne B.
        Ricci, for the State.

        Linda B. Weisel for the Defendant.


        DILLON, Judge.


        Rico Lamar Barnes (“Defendant”) entered an Alford plea to the offense of

possession with intent to manufacture, sell, and deliver cocaine and received a

suspended sentence. Defendant reserved the right to appeal the trial court’s denial

of his motion to suppress.

                                    I. Background

        In January 2013, Defendant visited his cousin Territon Lewis at Mr. Lewis’

home. At the time, both men were on supervised probation. During Defendant’s visit,
                                   STATE V. BARNES

                                   Opinion of the Court



Mr. Lewis’ parole officer arrived to conduct a search of the residence. City police

officers accompanied the parole officer to provide security during the search. Upon

entering the residence, the parole officer found Defendant and recognized him as a

probationer, which Defendant confirmed. The officer advised Defendant that he was

also subject to the warrantless search because of his probation status, and then placed

Defendant in handcuffs “for officer safety.” Both Defendant and Mr. Lewis were

placed in chairs on the front porch of the residence while officers conducted a search

of the residence. Defendant and Mr. Lewis were kept on the porch of the residence,

in handcuffs, for approximately forty-five (45) minutes to one hour.

      During the search of Mr. Lewis’ residence, the parole officer discovered a black

leather jacket with what appeared to be crack cocaine concealed in a cigarette pack

inside a pocket. After removing the substance from the jacket, the officer stepped

onto the porch and asked Defendant and Mr. Lewis who the jacket belonged to.

Defendant responded that the jacket was his. The officer then advised Defendant of

what she had found inside the jacket, and Defendant stated that he had borrowed the

jacket from someone else.

      Defendant was charged with possession with intent to manufacture, sell, and

deliver cocaine. Defendant filed a motion to suppress his statements made to the

parole officer, arguing that the officer failed to advise him of his Miranda rights. The

trial court denied Defendant’s motion to suppress, concluding that although



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                                           Opinion of the Court



Defendant was handcuffed during the questioning, he was not “in custody” for

purposes of Miranda. Defendant entered an Alford plea, reserving his right to appeal

the trial court’s denial of his motion to suppress.

                                              II. Analysis

        The sole issue on appeal is whether the trial court properly denied Defendant’s

motion to suppress his statements to the parole officer by concluding that Defendant

was not “in custody” for Miranda purposes. Although Defendant was in handcuffs,

we hold that, based on the totality of the circumstances, the trial court correctly

concluded that Defendant was not “in custody” for purposes of Miranda when he

made the statements. Therefore, we affirm.1

        Both the United States Constitution and the North Carolina Constitution

protect a person’s privilege against compulsory self-incrimination. See U.S. Const.

amend. V; N.C. Const. art. 1 § 23. Regarding this privilege, in its landmark Miranda

decision, the United States Supreme Court established the rule that statements

obtained from a defendant through interrogation while the defendant is in custody

are inadmissible when the defendant has not first been informed of his constitutional

rights. Miranda v. Arizona, 384 U.S. 436, 444 (1966) (emphasis added). As our own



        1Whether    someone is “in custody” for purposes of Miranda is a “mixed question of law and
fact.” State v. Garcia, 358 N.C. 382, 391, 597 S.E.2d 724, 733 (2004). Defendant acknowledges in his
brief that “virtually all of the operative facts in this case are uncontested.” As a result, these facts are
binding on appeal, State v. Brown, 199 N.C. App. 253, 256-57, 681 S.E.2d 460, 463 (2009), and our
review is limited to whether the trial court’s conclusions of law are legally accurate and “reflect a
correct application of law to the facts found.” Garcia, 358 N.C. at 391, 597 S.E.2d at 733.

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Supreme Court has explained, “the initial inquiry in determining whether Miranda

warnings were required is whether an individual was ‘in custody.’”            State v.

Buchanan, 353 N.C. 332, 337, 543 S.E.2d 823, 826 (2001). Therefore, our inquiry,

here, is whether Defendant was “in custody” for purposes of Miranda.

      Whether an individual is “in custody” depends on the context.           “Not all

restraints on freedom of movement amount to custody for purposes of Miranda.”

Howes v. Fields, 132 S. Ct. 1181, 1189 (2012). For instance, a prisoner is certainly

“in custody” in a general sense; however, a prisoner serving his term is not always “in

custody” for Miranda purposes.      Id. at 1191 (stating that “service of a term of

imprisonment, without more, is not enough to constitute Miranda custody”). In sum,

the term “in custody” for Miranda purposes, “is a term of art that specifies

circumstances that are thought generally to present a serious danger of coercion.” Id.

at 1189.

      Our Supreme Court has explained that a person is “in custody” for purposes of

Miranda “when it is apparent from the totality of the circumstances that there is a

formal arrest or restraint on freedom of movement of the degree associated with

formal arrest.” Garcia, 358 N.C. at 396, 597 S.E.2d at 736. See California v. Beheler,

463 U.S. 1121, 1125 (1983) (citing State v. Buchanan, 353 N.C. 332, 340, 543 S.E.2d

823, 828 (2001)) (internal marks and citations omitted). And this determination must




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                                  Opinion of the Court



be made from the point of view of an objectionably reasonable person in the suspect’s

position, described by our Supreme Court as follows:

             [T]he United States Supreme Court has stressed that the
             initial determination of custody depends on the objective
             circumstances of the interrogation, not on the subjective
             views harbored by either the interrogating officers or the
             person being questioned. Unless they are communicated
             or otherwise manifested to the person being questioned, an
             officer’s evolving but unarticulated suspicions do not affect
             the objective circumstances of an interrogation or
             interview, and thus cannot affect the Miranda custody
             inquiry . . . . [An officer’s] unarticulated plan has no
             bearing on the question [of] whether a suspect was in
             custody at a particular time; the only relevant inquiry is
             how a reasonable man in the suspect's position would have
             understood his situation.

Buchanan, 353 N.C. at 341-42, 543 S.E.2d at 829 (emphasis added).

      In the present case, Defendant was clearly restrained when questioned about

the jacket. He was seated on his cousin’s front porch in handcuffs. And our Supreme

Court has recognized that being handcuffed is a circumstance “supporting an

objective showing that one is ‘in custody[.]’” Buchanan, 353 N.C. at 339, 543 S.E.2d

at 828. Although, as the United States Supreme Court has explained, “[d]etermining

whether an individual’s freedom of movement was curtailed, however, is simply the

first step in the analysis, not the last. Not all restraints on freedom of movement

amount to custody for purposes of Miranda.” Howes, 132 S. Ct. at 1189.

      Based on the totality of the circumstances, we conclude that a reasonable

person in Defendant’s situation, though in handcuffs, would not believe his restraint


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                                   Opinion of the Court



rose to a level of restraint associated with a formal arrest. See Buchanan, 353 N.C.

at 339-40, 543 S.E.2d at 828. The regular conditions of probation in North Carolina

include the requirement that a probationer “[s]ubmit at reasonable times to

warrantless searches by a probation officer of the probationer’s person and of the

probationer’s vehicle and premises while the probationer is present, for purposes

directly related to the probation supervision.” N.C. Gen. Stat. § 15A-1343(b)(13)

(2015). During the search of Mr. Lewis’ residence, Defendant was informed by law

enforcement officers that he would be placed in handcuffs for the purpose of officer

safety.   He was never informed, at any point, that his detention would not be

temporary. Further, as a probationer subject to random searches as a condition of

probation, Defendant would objectively understand the purpose of the restraints and

the fact that the period of restraint was for a temporary duration. Indeed, at the

hearing on his motion to dismiss, Defendant testified that at the time of the search

of Mr. Lewis’ residence, he had been on probation for about two years. Defendant

also testified that at the time he was placed on probation, the court explained to him

the conditions of probation, including the possibility that he or his residence could be

subject to warrantless searches. See Minnesota v. Murphy, 465 U.S. 420, 430 (1984)

(holding that a probationer who is required to meet with his parole officer and answer

questions is not “in custody” for Miranda purposes even though his freedom of

movement is curtailed during the questioning).



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                                   Opinion of the Court



      We believe this case is distinguishable from State v. Johnston, cited by

Defendant, in which we held that a defendant was “in custody” for purposes of

Miranda where the defendant was handcuffed. State v. Johnston, 154 N.C. App. 500,

503, 572 S.E.2d 438, 441 (2002). In that case, the officers told the defendant that he

was in “secure custody” rather than under arrest. Our Court, however, concluded

that “a reasonable person [in the defendant’s] circumstances would believe that he

was under arrest.”    Id.   Specifically, in that case, not only was the defendant

handcuffed, he was also ordered out of the vehicle at gunpoint and placed in the back

of a police car where he was interrogated. In the present case, though, Defendant

was not ordered at gunpoint to submit to handcuffs and he was allowed to remain on

the front porch of his cousin’s residence rather than forced into the back of a police

vehicle.

      Defendant argues that the purpose of Defendant’s custody changed after

officers discovered the jacket and suspected contraband, as evidenced by the

testimony of an officer that “the purpose of [her conduct] was to determine who [the

jacket] and the contraband belonged to.” Defendant contends that this entitled him

to Miranda protections. However, Miranda is limited to custodial interrogations.

Where the indicia of formal arrest are absent, the fact that “police have identified the

person interviewed as a suspect and that the interview was designed to produce

incriminating responses from the person are not relevant in assessing whether that



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                                   Opinion of the Court



person was in custody for Miranda purposes.” In re W.R., 363 N.C. 244, 248, 675

S.E.2d 342, 344 (2009).

                                    III. Conclusion

      Based on the totality of the circumstances, including the fact that Defendant

was on probation during the search of Mr. Lewis’ residence, we conclude that

Defendant was not subjected to a formal arrest or a restraint on his freedom of

movement of the degree associated with formal arrest. Therefore, we agree with the

trial court that Defendant was not “in custody” for purposes of Miranda. Accordingly,

the trial court properly denied Defendant’s motion to suppress. We note that our

decision does not stand for the proposition that a person on probation is never entitled

to the protections of Miranda. See Murphy, 465 U.S. at 426.

      AFFIRMED.

      Judges CALABRIA and DIETZ concur.




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