#25871-a-GAS

2011 S.D. 77

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

                                 ****
STATE OF SOUTH DAKOTA,                    Plaintiff and Appellee,

      v.

RYLAN WAYNE WALTH,                        Defendant and Appellant.


                                 ****

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE SECOND JUDICIAL CIRCUIT
                  MINNEHAHA COUNTY, SOUTH DAKOTA

                                 ****

                  THE HONORABLE PETER H. LIEBERMAN
                               Judge

                                 ****

MARTY J. JACKLEY
Attorney General

CRAIG M. EICHSTADT
Assistant Attorney General
Pierre, South Dakota                      Attorneys for plaintiff
                                          and appellee.

NICOLE LAUGHLIN
CHERI SCHARFFENBERG
Minnehaha County Public
 Defender’s Office
Sioux Falls, South Dakota                 Attorneys for defendant
                                          and appellant.

                                 ****

                                          ARGUED OCTOBER 5, 2011

                                          OPINION FILED 11/16/11
#25871

SEVERSON, Justice

[¶1.]        Rylan Wayne Walth (Walth) was convicted of one count of possession

with intent to distribute a schedule I and/or II drug and one count of simple

possession of a controlled drug. Prior to trial, Walth filed a motion to suppress

statements he made to a police officer on the grounds that his Miranda rights were

violated. The trial court denied the motion to suppress. We affirm.

                                 BACKGROUND

[¶2.]        On April 25, 2009, Lance Bosch was working as a security guard at

Wiley’s Tavern in Sioux Falls, South Dakota. Brett McClay, a disc jockey at

Wiley’s Tavern, notified Bosch that he witnessed a drug transaction take place in

the bathroom of the bar. He identified Walth as the individual who allegedly sold

the drugs. Bosch approached Walth to discuss the accusation. During this

discussion, Bosch asked Walth if he had any drugs in his possession. Walth

handed Bosch a cellophane wrapper. Bosch smelled marijuana on the wrapper.

[¶3.]        Bosch led Walth to Detective Gries, an off-duty officer with the Sioux

Falls Police Department who was also working as a security guard at Wiley’s

Tavern that night. Detective Gries was dressed in plain clothes but had a set of

handcuffs and a pistol in a holster on his hip. He was standing near the back door

of the bar. Bosch handed the cellophane wrapper to Detective Gries and informed

him Walth had been accused of selling drugs in the bathroom. Detective Gries also

determined the cellophane wrapper smelled of marijuana.

[¶4.]        Detective Gries identified himself to Walth as a Sioux Falls Police

Officer and asked Walth to accompany him outside the back door of the bar for


                                         -1-
#25871

questioning. Upon exiting the bar, Detective Gries showed Walth his police issued

badge and identification card. Detective Gries then verified Walth’s identity. It is

unclear from the record whether Walth produced an Iowa driver’s license or some

other identification card. The record is also unclear as to the length of time

Detective Gries retained possession of the identification card.

[¶5.]        After verifying Walth’s identity, Detective Gries questioned Walth

about what had occurred in the bathroom of the bar. Walth admitted he sold

marijuana to a friend. Detective Gries asked Walth if he had any additional drugs

in his possession. Walth stated that he did not. However, when Detective Gries

posed the question a second time, Walth reached in his pocket and pulled out

several pills. Walth identified these pills as ecstasy.

[¶6.]        Within two minutes of stepping outside, Detective Gries placed Walth

under arrest. While waiting for the transport officer to arrive, which took an

additional five to ten minutes, Detective Gries read Walth his Miranda warnings

and asked him if he would be willing to answer questions. Walth agreed to answer

the detective’s questions and admitted to selling ecstasy to two separate people in

the bathroom of Wiley’s Tavern.

[¶7.]        The Minnehaha County Grand Jury indicted Walth on one count of

possession with intent to distribute a schedule I and/or II drug and one count of

simple possession of a controlled drug. Prior to trial, Walth filed a motion to

suppress the statements he made to Detective Gries prior to his arrest on the

grounds that his Miranda rights were violated. Walth also argued that the

Miranda violation tainted the statements Walth made to Detective Gries after he


                                         -2-
#25871

was arrested and received a Miranda advisement. In addition, Walth argued that

the physical evidence he handed to Detective Gries was inadmissible as fruit of the

Miranda violation. The trial court denied the motion to suppress after hearing the

matter on December 9, 2009. Walth waived his right to a trial by jury. The case

proceeded to a court trial and Walth was convicted of all charges.

                                     DECISION

[¶8.]        Whether the statements Walth made to Detective Gries prior
             to his arrest were made while Walth was in custody, thus
             requiring a Miranda advisement.

[¶9.]        Walth argues Detective Gries violated his Fifth Amendment right

against self-incrimination by eliciting statements from Walth without first

administering a Miranda warning. Walth thus contends the trial court erred in

failing to grant his motion to suppress the incriminating statements.

[¶10.]       “The Fifth Amendment right against self-incrimination is implicated

whenever an individual is subject to custodial interrogation by law enforcement.”

State v. Bowker, 2008 S.D. 61, ¶ 26, 754 N.W.2d 56, 64 (citing State v. Rhines, 1996

S.D. 55, ¶ 11, 548 N.W.2d 415, 426). An individual is subject to custodial

interrogation if he is ‘“deprived of his freedom of action in any significant way.”’ Id.

(quoting State v. Hamm, 89 S.D. 507, 514, 234 N.W.2d 60, 64 (1975)). As we

explained in State v. Wright:

             “Any interview of one suspected of a crime by a police officer will
             have coercive aspects to it, simply by virtue of the fact that the
             police officer is part of a law enforcement system which may
             ultimately cause the suspect to be charged with a crime. Nor is
             the requirement of warning to be imposed simply because the
             questioning takes place in the station house, or because the
             questioned person is one whom the police suspect. Miranda
             warnings are required only where there has been such a

                                          -3-
#25871

             restriction on a person’s freedom as to render [him or her] ‘in
             custody.’”

2009 S.D. 51, ¶ 19, 768 N.W.2d 512, 520 (quoting State v. Johnson, 2007 S.D. 86, ¶

22, 739 N.W.2d 1, 9).

[¶11.]       In determining whether an individual is in custody for purposes of

Miranda, the subjective views of the interrogating officer and the individual being

questioned are not relevant considerations. Bowker, 2008 S.D. 61, ¶ 26, 754

N.W.2d at 64 (citing State v. Thompson, 1997 S.D. 15, ¶ 25, 560 N.W.2d 535, 540).

Rather, ‘“[w]hether an individual is in custody is determined by how a reasonable

man in the suspect’s position would have understood his situation.’” Id. (quoting

State v. Hoadley, 2002 S.D. 109, ¶ 24, 651 N.W.2d 249, 256).

[¶12.]       A two-part test is utilized to determine whether an individual is in

custody at the time of questioning:

             “First, what were the circumstances surrounding the
             interrogation; and second, given those circumstances, would a
             reasonable person have felt he or she was not at liberty to
             terminate the interrogation and leave. 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.”

Wright, 2009 S.D. 51, ¶ 19, 768 N.W.2d at 520 (quoting Johnson, 2007 S.D. 86, ¶

22, 739 N.W.2d at 9).

[¶13.]       The first part of the test involves factual determinations as to “‘the

circumstances surrounding the interrogation.’” Bowker, 2008 S.D. 61, ¶ 27, 754

N.W.2d at 65 (quoting Thompson v. Keohane, 516 U.S. 99, 112, 116 S. Ct. 457, 465,

133 L. Ed. 2d 383 (1995)). We review a trial court’s factual determinations


                                         -4-
#25871

regarding these circumstances under a clearly erroneous standard. Id. (citing

State v. Aesoph, 2002 S.D. 71, ¶ 12, 647 N.W.2d 743, 750). “However, the

application of those facts to the determination of whether a reasonable person

under those circumstances would consider themselves to be in custody is a question

of law.” Id. (citing Keohane, 516 U.S. at 112, 116 S. Ct. at 465). We review

questions of law de novo. Wright, 2009 S.D. 51, ¶ 18, 768 N.W.2d at 519 (quoting

State v. Ball, 2004 S.D. 9, ¶ 21, 675 N.W.2d 192, 199).

[¶14.]       Walth argues that he was in custody from the moment Detective Gries

asked him to step outside of the bar. In support of this argument, Walth notes

Detective Gries only made contact with Walth because he suspected Walth had

committed a crime. After Detective Gries escorted Walth outside of the bar, the

detective immediately showed Walth his badge as well as his identification card.

The questioning took place outside of the bar and apart from the crowd of people

located inside the bar. Walth argues that under these facts, a reasonable person

would not feel free to leave the scene.

[¶15.]       We have held the test for determining whether Miranda warnings are

necessary “‘is not whether the investigation has focused on any particular suspect,

but rather, whether the person being questioned is in custody or deprived of his or

her freedom to leave.’” Johnson, 2007 S.D. 86, ¶ 22, 739 N.W.2d at 9 (quoting State

v. Carothers, 2006 S.D. 100, ¶ 20, 724 N.W.2d 610, 619). ‘“Even a clear statement

from an officer that the person under interrogation is a prime suspect is not, in

itself, dispositive of the custody issue, for some suspects are free to come and go

until the police decide to make an arrest.”’ Thompson, 1997 S.D. 15, ¶ 25, 560


                                          -5-
#25871

N.W.2d at 540 (quoting Stansbury v. California, 511 U.S. 318, 325, 114 S. Ct. 1526,

1530, 128 L. Ed. 2d 293). Thus, the fact that Detective Gries initially questioned

Walth because he had been accused of committing a crime does not necessarily

render Walth “in custody” for purposes of Miranda.

[¶16.]       In State v. Anderson, we held that a defendant’s acceptance of an

officer’s invitation to go to a police station and speak with the police did not

constitute custodial interrogation. 2000 S.D. 45, ¶ 77, 608 N.W.2d 644, 666. We

noted the defendant was not restrained in any way and that he voluntarily agreed

to accompany the officers to the police station. Id. Although the interview itself

took place in an interrogation room with an automatic lock, we held that ‘“a closed,

or even locked [ ] door does not, in and of itself, create a custodial interrogation.”’

Id. ¶ 70 n.21 (citing Thompson, 1997 S.D. 15, ¶ 28, 560 N.W.2d at 541). After

considering the circumstances surrounding the interrogation in Anderson, we

determined a reasonable person would have felt free to terminate the interview

and leave at any time. Id. ¶ 79. Thus, we held the defendant was not in custody

for purposes of Miranda. Id. See Carothers, 2006 S.D. 100, 724 N.W.2d 610

(finding an interrogation that took place behind closed doors was noncustodial

because the officers advised the defendant he was not under arrest, “the tone of the

questioning was conversational in nature,” and “[n]o threats or physical force were

used to elicit any information”).

[¶17.]       Here, the record shows Walth voluntarily agreed to speak with

Detective Gries. The questioning took place in a neutral area, near a sidewalk and

a parking lot. It was done in the open and in full view of the public. Although


                                          -6-
#25871

Detective Gries identified himself as a police officer, he did not place any restraints

on Walth. Detective Gries testified the tone of the questioning was conversational

in nature and no threats or physical force were used to elicit any information.

Walth was placed under arrest within two minutes of exiting the bar to speak with

Detective Gries. Under these facts, prior to his arrest, Walth’s freedom of

movement was not restrained so as to render the interrogation custodial.

[¶18.]       A review of the circumstances existing at the time of Detective Gries’s

interview with Walth reflects that a reasonable person would have understood he

or she was at liberty to terminate the interview and leave. We find “no indication

that [Walth] was coerced into making any statements through the ‘inherently

compelling pressures’ of a custodial setting.” Johnson, 2007 S.D. 86, ¶ 28, 739

N.W.2d at 10 (citing Miranda v. Arizona, 384 U.S. 436, 467, 86 S. Ct. 1602, 1624,

16 L. Ed. 2d 694 (1966)). Thus, the trial court did not err in denying Walth’s

motion to suppress. There being no Miranda violation, we need not address

Walth’s remaining claims.

[¶19.]       Affirmed.

[¶20.]       GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and

WILBUR, Justices, concur.




                                         -7-
