2012 VT 104


State v. Tran   
(2011-341)
 
2012 VT 104
 
[Filed 21-Dec-2012]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.
 
 

2012 VT 104 

 

No. 2011-341

 

State of Vermont


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Chittenden
  Unit,


 


Criminal  Division


 


 


Hieu Tran


May Term, 2012


 


 


 


 


Linda
  Levitt, J.


 

Thomas J. Donovan, Jr., Chittenden County State’s Attorney,
Andrew R. Strauss, Deputy State’s
  Attorney, and Ben Chater, Law
Clerk, Burlington, for Plaintiff-Appellant.
 
Matthew F. Valerio, Defender General, Anna Saxman, Deputy
Defender General, and Laura
  Ethington, Legal Intern, Montpelier, for
Defendant-Appellee.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund, Burgess and
Robinson, JJ.
 
 
¶ 1.            
SKOGLUND, J.   This interlocutory appeal raises the
question of whether defendant Hieu Tran was in police custody when two
detectives questioned him in a police cruiser for one hour as part of an
investigation into an assault and attempted robbery.  The trial court
concluded that the interview was a custodial interrogation conducted without
the warnings guaranteed by Miranda v. Arizona, 384 U.S. 436 (1966), and
granted defendant’s motion to suppress.  On appeal, the State argues that
no warnings were necessary because defendant voluntarily spoke with detectives
and was not in custody during the interview.  We affirm.
¶ 2.            
Defendant was charged with assault and attempted robbery in violation of
13 V.S.A. § 608(a).  Defendant filed a motion to suppress statements he
made to police during an interview in March 2011.  Defendant claimed that
the statements were made in violation of his rights under the Fifth Amendment
of the Federal Constitution and Chapter I, Article 10 of the Vermont
Constitution because police conducted a custodial interrogation without
providing defendant with the necessary Miranda warnings.  The court
held a hearing on the motion in August 2011.  At the hearing, the only
witness was one of the police detectives who interviewed defendant.  In
addition, a recording and transcript of the police interview were admitted. 

¶ 3.            
At the suppression hearing, the detective described the following facts
concerning the investigation and the challenged interview.  In the early
afternoon of March 23, two police detectives drove in an unmarked police car to
defendant’s residence to question him about his possible involvement in an
assault and robbery that had occurred a couple of days earlier.  
¶ 4.            
Prior to the interview, police had already compiled information
regarding the assault and robbery from the victim, the victim’s friend who was
present at the scene, and a person in the neighborhood who witnessed the
altercation.  The investigation started when police were dispatched to an
emergency room where a man was being treated for an assault, which required
stitches on his hand.  The information from the man led detectives to the
place where the incident occurred.  After speaking with a witness at the
scene and the injured man’s friend, police understood that the assault occurred
during a drug transaction.  Two perpetrators were involved, and one
carried a gun.  The victim’s friend identified defendant as the suspect
without a gun.  Police recovered a baseball cap from the scene that
reportedly belonged to defendant.  
¶ 5.            
When the detectives arrived at defendant’s residence, defendant’s mother
indicated that he was not at home and she was going to pick him up. 
Police followed her car when she left to get defendant.  When defendant
arrived back at home, police again went to the door and defendant came out onto
the porch.  Police asked defendant to meet in their car.  The
detective testified that he decided to conduct the interview in the police car
to be more comfortable and to afford some privacy from defendant’s mother and
brother, who were at home.  Defendant entered the front passenger
seat.  The officer could not remember if defendant or the other detective
had shut the front door.  The door remained unlocked during the
interview.  The detective testified he did not tell defendant that he was
not free to leave, but on cross-examination agreed he did not tell
defendant that he was free to leave.  One detective sat in the
driver’s seat, and the other sat in the back seat.  Both questioned
defendant.
¶ 6.            
At the beginning of the interview, the detectives told defendant that
they had spoken to the victim and other witnesses, that
they knew something had happened and there was a fight, and that they wanted
defendant to have a chance to explain his side of the story.  The
detectives asked defendant how the drug deal was set up.  Defendant
explained that the victim had initiated it by calling him.  The detectives
told defendant that they “already have the answers to some questions” and “know
how it went down and where it went down and all of that stuff.”  In
response to questions about the gun, defendant stated that the gun was fake and
plastic.  At one point, one detective directed defendant not to play with
his cell phone during the interview.  The detectives explained to
defendant that he could be charged with armed robbery even if he was not
holding the gun because he was there and part of the deal.  Defendant made
little response to the questioning, stating that he did not have anything to
say, and did not know or remember what happened.  At one point, he
admitted that he was there, and again stated the gun was not real.  He
admitted he lost his hat at the scene.  
¶ 7.            
The detective testified that prior to the interview, he believed there
was probable cause to arrest defendant.  The interview was recorded and
lasted for about one hour.  At the end of the interview, defendant was
arrested.  
¶ 8.            
The court made brief oral findings on the record.  The court found
that the circumstances of the questioning created a police-dominated
atmosphere.  The court found several factors demonstrated that defendant
was in custody at the time of the interview and not free to leave.  First,
the court found it significant that prior to the interview, police had enough
information to arrest defendant and were, in fact, planning to arrest defendant
at the close of the interview.  The court emphasized that defendant would
not have felt free to leave insofar as he was young, and had been told by
police that they had information linking him to the assault and robbery. 
Finally, the court pointed to the physical conditions of the interrogation: two
officers questioning defendant in a small space—a police car—for one
hour.  
¶ 9.            
The court subsequently denied the State’s motion to reconsider the
suppression decision.  The State then moved for permission to appeal,
asserting that several statements made during the interview were substantial
proof of a material fact relevant to the proceeding.  See 13 V.S.A.
§ 7403(c), (d) (allowing state to appeal from granting of motion to
suppress in felony case as long as state certifies that suppressed evidence is
substantial proof of relevant material fact or loss of evidence would seriously
impede proceeding); V.R.A.P. 5(b)(1).  According to the State, these facts
included defendant’s statements that he set up the drug deal, saw the gun that
was used during the assault and robbery, was present at the scene, and lost his
hat at the place where the assault and robbery took place.  The trial
court granted the motion, and this Court accepted the State’s appeal.
¶ 10.         On
appeal, the State argues that the court’s order was error because the court
erroneously considered the detective’s subjective belief in defendant’s guilt
and defendant’s subjective characteristics like his age.  The State argues
there was no custody because a reasonable person would have felt free to
leave.  Our review of the granting of a motion to suppress involves a
two-step analysis.  State v. Lawrence, 2003 VT
68, ¶ 8, 175 Vt. 600, 834 A.2d 10 (mem.).  We defer to the trial
court’s factual findings and will affirm them unless clearly erroneous.  Id. 
The underlying legal issue, such as whether there was a custodial
interrogation, is a legal question and our review “is plenary and nondeferential.” 
State v. Sole, 2009 VT 24, ¶ 17, 185 Vt. 504, 974 A.2d 587; see Thompson
v. Keohane, 516 U.S. 99, 112-13 (1995) (holding that question of whether
suspect is in custody for Miranda purposes is “a mixed question of law and
fact,” qualifying for independent review (quotation marks omitted)).
¶ 11.         In
the landmark decision of Miranda v. Arizona, the U.S. Supreme Court held
that to adequately protect Fifth Amendment rights police are required to advise
suspects of their rights to remain silent and to have an attorney present prior
to any custodial interrogation.[1] 
384 U.S. at 444-45.  “Suspects not in custody are
not entitled to Miranda warnings.”  State v.
Garbutt, 173 Vt. 277, 282, 790 A.2d 444, 448 (2001).  The
custody determination involves an objective test based on “ ‘the
totality of the circumstances.’ ”  State
v. Oney, 2009 VT 116, ¶ 10, 187 Vt. 56, 989 A.2d 995 (quoting State v.
Willis, 145 Vt. 459, 475, 494 A.2d 108, 117 (1985)).  The key inquiry
is whether “ ‘a reasonable person would believe
he or she were free to leave or to refuse to answer police questioning.’ ”  Id. (quoting Willis, 145 Vt. at 475,
494 A.2d at 117).  In the absence of a formal arrest, the critical
question is whether law enforcement officials acted or spoke in a manner that
conveyed the message that they would not permit the individual to leave.  United States v. Ali, 86 F.3d 275, 276 (2d Cir. 1996).
¶ 12.         In State
v. Muntean, 2010 VT 88, ¶ 19, 189 Vt. 50, 12 A.3d 518, we identified
several factors to consider in making the custody determination.  These
include: (1) the location of the interview; (2) the interviewer’s communication
to the suspect of his belief in the suspect’s guilt; (3) whether the suspect arrives
at the interview voluntarily; and (4) “whether the police told the suspect that
he was free to terminate the interview at any point and leave.”  Muntean
listed other indicators of custody including: 
the extent to which the suspect was confronted
with evidence of guilt; whether and to what degree the suspect’s freedom of
movement was restrained; whether the police used deceptive techniques in
conducting the interview; the degree to which the suspect was isolated from the
outside world; the duration of the interview; whether the police officers were
armed; and the number of police officers present during the interview.
Id.  We cautioned that
the list was not exhaustive and that the totality of the circumstances should
be considered.
¶ 13.         Applying
this analysis to the unchallenged facts, we conclude that police engaged in a
custodial interview of defendant without providing the necessary Miranda
warnings.  
¶ 14.         We
begin with the most important factor—whether police informed defendant that he
was free to leave.  “Numerous courts have held that such disclosure is
significant in determining whether a reasonable person would have felt at
liberty to terminate a police interview.”  Muntean, 2010 VT 88, ¶
25 (citing cases); see United States v. Swanson, 341 F.3d 524, 530 (6th
Cir. 2003) (“[A] statement by a law enforcement officer to a suspect that he is
not under arrest is an important part of the analysis of whether the suspect
was ‘in custody.’ ” (quoting United States v. Salvo, 133 F.3d 943,
951 (5th Cir. 1998)).  In Muntean, we concluded that the defendant
was in a custodial situation in large part because police did not “expressly indicate[] that defendant was free to terminate the
interview and leave at will.”  2010 VT 88, ¶ 27. 
This factor was pivotal, distinguishing Muntean
from other cases where we had concluded the suspect was not in a custodial
situation.  Id.  A reasonable person’s belief about whether
the person is free to leave is necessarily influenced by the communication from
police about the extent of the person’s freedom.  United States v.
Griffin, 922 F.2d 1343, 1350 (8th Cir. 1990) (“[T]he absence of police
advisement that the suspect is not under formal arrest, or that the suspect is
at liberty to decline to answer questions, has been identified as an important
indicium of the existence of a custodial setting.”).  That is why custody
is usually not found when police assure a defendant that he is not under
arrest, and is free to terminate the questioning and leave.  See, e.g., Oregon
v. Mathiason, 429 U.S. 492, 495 (1977) (concluding that defendant, who was
questioned at police station, was not in custody where officer informed him that he was not under arrest and was free to leave at end of
interview); United States v. Bassignani, 575 F.3d
879, 886 (9th Cir. 2009) (noting that circuit has “consistently held that a
defendant is not in custody when officers tell him that he is not under arrest
and is free to leave at any time”); Oney, 2009 VT 116, ¶ 16 (concluding
there was no custody where defendant was repeatedly told he was free to leave);
State v. Pontbriand, 2005 VT 20, ¶ 19, 178 Vt. 120, 878 A.2d 227
(holding defendant was not in custody where officers multiple times informed
defendant he was not under arrest and was not required to speak with
them).  Here, officers did not inform defendant he was free to leave or
that he was not under arrest.  This fact strongly indicates a custodial
setting. 
¶ 15.         In
addition, the content of the questioning created a custodial atmosphere because
throughout the interview the detectives repeatedly confronted defendant with
evidence of his guilt.  See Muntean, 2010 VT 88, ¶ 19 (listing as
factor “extent to which the suspect was confronted with evidence of
guilt”).  The detective who testified at the suppression hearing stated
that he believed there was probable cause to arrest defendant prior to the
interview and that he intended to arrest defendant at that time.  The
detectives communicated this belief to defendant explaining they knew he was
involved in the crime and confronting defendant with the existing evidence they
had of his guilt.  They emphasized that they had spoken with the victim
and his friend, had interviewed witnesses in the neighborhood, and had identified
defendant as one of the suspects.  They also stated they knew there was a
gun involved.  They communicated that defendant could be arrested for
armed robbery—a serious offense—based on that evidence.  In fact, they did
arrest defendant at the close of the interview.  See Griffin, 922
F.2d at 1355 (explaining that arrest at termination of interview is “objective
evidence which tends to support the reasonableness of [the defendant’s]
subjective belief that he was in custody from the inception of the encounter
and that his arrest was imminent”).
¶ 16.         This
type of repeated accusatory questioning created the kind of “ ‘coercive
environment’ ” indicative of police custody.  Muntean, 2010 VT
88, ¶ 28 (quoting United States v. Griffin, 7 F.3d 1512, 1518 (10th Cir.
1993)).  While the detective’s subjective belief in defendant’s guilt is
not necessarily relevant, it becomes so when communicated to the suspect
because it affects the person’s objective belief in whether he or she is free
to leave.  Garbutt, 173 Vt. at 282, 790 A.2d at 448; see Griffin,
922 F.2d at 1348 (explaining that fact that individual is focus of
investigation is relevant to extent communicated because it contributes to
objective sense of custody).  “A reasonable person would not feel at liberty
to terminate a police interview after being confronted with such evidence, as a
‘reasonable person understands that the police ordinarily will not set free a
suspect when there is evidence strongly suggesting that the person is guilty of
a serious crime.’ ”  Muntean, 2010 VT
88, ¶ 28 (quoting State v. Pitts, 936 So. 2d 1111,
1128 (Fla. Dist. Ct. App. 2006)).  Here, from the outset, the
police presented defendant with evidence that: defendant was present during the
drug deal and the robbery; a gun was used in the crime; and defendant could be
arrested for his involvement.
¶ 17.         Finally,
other aspects of the questioning are indicative of a police-dominated
atmosphere.  Defendant did not voluntarily initiate contact with police,
but spoke with the detectives after they sought him out, waited for him to come
home, and placed him inside a police car.  Inside the car, defendant was
in a small space with two officers in close proximity, who both questioned him
at length for an hour.  All of these facts—the initiation of contact by
police, the location, the number of officers, and the length of the
interview—are indicia of custody.
¶ 18.         The
State argues that this case is analogous to State v. Comes where this
Court concluded the defendant was not in police custody when he was
interrogated in a police cruiser.  144 Vt. 103, 107, 472
A.2d 1253, 1255 (1984).  In Comes, police were investigating
a burglary and approached the defendant in a restaurant.  The defendant
voluntarily agreed to talk with police outside where it would be more
private.  Since it was a cold winter day, they got into the police
cruiser.  Only a few minutes elapsed before the defendant admitted he was
involved in the burglary after police noted the defendant’s shoes were similar
to the footprints found at the scene of the burglary.  Following the
defendant’s admission, police advised the defendant of his Miranda
rights.
¶ 19.         Questioning
of a suspect in a cruiser will not always support a finding of custody.  Id.
 In this case, however, the facts describe a situation in which defendant
would not have felt free to leave.  Here, two detectives came to
defendant’s house and asked him to get in the police cruiser.  They
deliberately chose to conduct the interview in the cruiser, rather than in the
home, thus separating defendant from the familiar setting of his home and his
family.  See Griffin, 922 F.2d at 1352 (explaining that police
domination occurs when suspect is removed from “presence of family, friends, or
colleagues who might lend moral support during the questioning and deter a
suspect from making inculpatory statements”); cf. Pontbriand, 2005 VT
20, ¶ 16 (concluding that suspect was not in custody in part based on fact
that officers made no effort to isolate suspect from others).  During the
interview, police directed defendant not to use his cell phone, further cutting
him off from contact with others and asserting their authority.  Whereas
in Comes police merely commented on the fact that the suspect’s shoes
were similar to footprints found at the scene, here defendant was confronted
with existing evidence of his personal involvement in the crime, including eye
witness identification and the fact that he could be arrested based on that
evidence.  These facts distinguish Comes and support a finding of
custody.
¶ 20.         The
State also argues that the trial court erroneously considered the officer’s
subjective belief in defendant’s guilt and defendant’s age of nineteen years, a
subjective characteristic.  The State contends that since defendant was an
adult his age was irrelevant because the proper inquiry is whether a reasonable
person would believe he or she was free to leave.  See Garbutt, 173
Vt. at 282, 790 A.2d at 448 (explaining custody is an
objective inquiry).  We do not reach this question because we do not rely
on defendant’s young age in our analysis of whether defendant was in
custody.  As to the consideration of the officer’s subjective belief in
defendant’s guilt, we conclude there was no error.  This belief was
relevant because it was communicated to defendant during the questioning.
¶ 21.         Finally,
the State argues in the alternative that even if defendant was in custody later
in the interview, custody did not arise until the detectives began to confront
defendant with evidence of his guilt, and that his incriminating statements
made early in the interview should not be suppressed.  We are not
persuaded.  From the outset of the questioning, there were indicia of
custody and police dominance over defendant.  He was directed into the
cruiser; not informed that he was free to leave or to terminate the interview;
told that they had gathered information/evidence from the victim of the
assault, his friend, and other witnesses; and told that the police already knew
what had happened in the assault.  Certainly, later in the interview the
detectives more precisely laid out the evidence against defendant and
concretely told defendant that there was sufficient evidence to arrest
him.  We cannot say, however, that under the totality of the
circumstances, defendant’s statements even at the beginning of the interview
were made in response to mere questioning rather than the product of a
custodial interrogation. 
¶ 22.         We
conclude that defendant was in custody and entitled to Miranda warnings,
and because such warnings were not provided, defendant’s statements made during
the March interview must be suppressed.
Affirmed.

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 
 
¶ 23.         BURGESS,
J., concurring in part and dissenting in part.   I agree that Miranda
warnings were required when the detectives made it reasonably clear to
defendant that he could be arrested and charged with armed robbery.  I
respectfully dissent, however, from the majority’s conclusion that the warnings
were required at the outset of the questioning.  Accordingly, I would
reverse that portion of the trial court’s decision suppressing defendant’s
earliest acknowledgment that a “fake” gun was used in connection with the
robbery, together with whatever other admissions he may have made before the
officers asserted he was subject to felony arrest.
¶ 24.         Neither
facts nor law support the trial court’s and majority’s view that custody
occurred at the onset of questioning.  Two plainclothes detectives arrived
at defendant’s home in an unmarked car and told him that they would like to
talk to him.  The detectives were invited into the house, but asked
defendant if he would mind talking to them “out here for a little bit, so we
have a little privacy,” away from defendant’s mother.  When defendant
stepped outside, the officers asked if he would mind sitting in their
car.  Defendant agreed.  At the start of the questioning, defendant professed
not to know why the detectives wanted to talk to him.  The detectives
explained they were investigating a fight reported two nights earlier and
wanted to give defendant an opportunity to give his side of the story.
 They told him that they had spoken to the putative victims, as well as
neighbors and other witnesses about the incident.
¶ 25.         At
this point, there was no objective indication of custodial interrogation to
trigger Miranda warnings.  The subjective design of the detectives
is irrelevant.  State v. Willis, 145 Vt. 459,
475, 494 A.2d 108, 117 (1985).  Defendant was not restrained. 
Assuming defendant could even be characterized as detained, police questioning
during a brief investigative detention on a public roadway is not inherently
“custodial” for Miranda purposes.  State v.
Boardman, 148 Vt. 229, 231-32, 531 A.2d 599, 601 (1987). 
Nothing in the record suggests that defendant was coerced to get into the
detectives’ car, and it is long settled that questioning in a police car does
not necessarily amount to custody.  State v. Comes, 144 Vt. 103,
106-07, 472 A.2d 1253, 1255-56 (1984) (finding no custody when suspect
voluntarily agreed to questioning in police car for privacy on cold day and
without any physical restraint).
¶ 26.         The
detectives began questioning in the police car by asking defendant how he and
one of the named victims had first come into contact with each other. 
When defendant gave vague and inconsistent answers, the detectives explained
that they already had the answers to some of the questions they were asking and
that they knew “for the most part what happened.”  The detectives then
asked defendant: “Where’s the gun?”  When defendant professed not to know
anything, the detectives noted that a gun can be dangerous and asked if the gun
was real or a fake.  Defendant told them that it was a fake.  He
explained that it was “plastic,” but that he did not know where it was.
¶ 27.         As of
the time defendant made these last statements, approximately five minutes into
the questioning, there was still no basis upon which to conclude that he was
under actual or de facto arrest.  The majority adopts the trial court’s
findings underlying its determination of police-dominated custody, but those
findings are either unsupported by the evidence—at least prior to defendant’s
admissions about the gun—or are legally irrelevant.  The trial court
relied on the detectives’ probable cause and undeclared intention to arrest
defendant, when it is settled that the subjective knowledge and intent of
police are irrelevant to a defendant’s perception of custody.  Willis,
145 Vt. at 473, 494 A.2d at 115-16.  The court
cited defendant’s age of nineteen, but an adult’s age alone is not objectively
determinative of a reasonable person’s perception of arrest.  See State
v. Oney, 2009 VT 116, ¶ 10, 187 Vt. 56, 989 A.2d 995 (requiring objective
inquiry).  The court found the detectives accused defendant of assault and
robbery, but that did not actually occur until after his admissions
about the gun.  The trial court’s findings could be understood to state
that the detectives confronted defendant with the fact that they had all the
identifying information linking him to the robbery, but such a finding is
unsupported by any evidence before defendant’s admissions about the
gun.  The court also found all of the evidence obtained against defendant
was garnered over the course of an hour’s interrogation, when his gun admission
occurred within his first few minutes in the car.  
¶ 28.         The
majority adopts these findings, notwithstanding the undisputed contrary record
evidence, and adds that the physical conditions of interrogation in a police
car support the notion of custodial interrogation, even though it is equally
settled that questioning in a police cruiser does not, in and of itself, amount
to custodial interrogation.  State v. Lancto, 155 Vt. 168, 171, 582
A.2d 448, 449 (1990); see State v. McElreavy, 157 Vt. 18, 24-25, 595
A.2d 1332, 1335-36 (1991) (refusing to suppress statements made to police
during interview in police cruiser).  Considered in the aggregate, up to
when he was asked about and admitted knowledge of the gun, defendant agreed to
enter the police car, was not yet accused, was not confronted with evidence,
and was not told he could be arrested—all in the space of about five
minutes.  Nevertheless, the majority appears to hold that defendant
perceived himself in custody the moment he entered the police car because the
detectives told him that they already knew what had happened and did not
affirmatively tell him that he was free to leave.  This is not the test
for custody under Miranda. 
¶ 29.         The
majority makes much of the fact that the officers did not explicitly tell
defendant that he was free to end the questioning and leave at any time, but
neither did they tell him he was not free to end the questioning and
leave.  As noted in a recent Vermont federal case, the United States Court
of Appeals for the Second Circuit has emphasized that, absent an actual arrest,
an interrogation is not custodial “ ‘unless the
authorities affirmatively convey the message that the defendant is not
free to leave.’ ”  State v. Ramos,
No. 1:11-cr-111, 2012 WL 1854747 (D. Vt. May 21, 2012) (quoting United
States v. Mitchell, 966 F.2d 92, 98 (2d Cir. 1992) (emphasis added)). 
No such message was conveyed to defendant in this case before his admission
about the gun.
¶ 30.         In
any event, feeling “free to leave” is not the ultimate standard for determining
custody under Miranda.  Persons temporarily detained for
investigation, and who would not reasonably feel free to walk away from the
police, “ ‘are not in custody for the purposes of Miranda
absent some showing that they were subjected to restraints comparable to those
associated with a formal arrest.’ ”  State
v. Gemler, 2004 VT 3, ¶ 18, 176 Vt. 257, 844 A.2d 757 (quoting Lancto,
155 Vt. at 171, 582 A.2d at 449).
¶ 31.         The
United States Supreme Court has never made “free-to-leave” the only factor in
determining whether a person was in custody requiring Miranda
warnings.  “The free-to-leave inquiry constitutes a necessary, but not
determinative, first step in establishing Miranda custody.”  United States v. Newton, 369 F.3d 659, 670 (2d. Cir.
2004), cert. denied, 543 U.S. 947.[2] 
“The ‘ultimate inquiry’ for determining Miranda custody . . . is that
articulated by the Supreme Court in California v. Beheler: ‘whether
there is a formal arrest or restraint on freedom of movement of the degree
associated with a formal arrest.’ ”  Id. (quoting United States
v. Beheler, 463 U.S. 1121, 1125 (1983) (internal quotations omitted)); see Oregon
v. Mathiason, 429 U.S. 492, 495 (1977) (stating that Miranda
warnings are not required merely because there are some coercive aspects to
police questioning or because suspect is questioned at police station, but
rather “only where there has been such a restriction on a person’s freedom as
to render him ‘in custody’ ”); Oney, 2009 VT 116, ¶ 16 (“Custody is
not established simply because the questioning takes place in a police station
or because the questioned person is one whom the police suspect.”).
¶ 32.         “In
such cases, a court must ask whether, in addition to not feeling free to leave,
a reasonable person would have understood his freedom of action to have been
curtailed to a degree associated with a formal arrest.”  Newton, 369 F.3d at 672.  “Only if the answer to
this . . . second question is yes was the person ‘in
custody for practical purposes,’ and ‘entitled to the full panoply of
protections prescribed by Miranda’ ”  Id. (quoting Berkemer
v. McCarty, 468 U.S. 420, 440 (1984) (internal quotations omitted)); Thompson
v. Keohane, 516 U.S. 99, 112 (1995) (highlighting free-to-leave inquiry as
essential component of “in custody” determination, but reiterating that
“ultimate inquiry” is arrest or arrest-like restraint test established in Miranda
and Beheler).[3]
¶ 33.         The
United States Supreme Court in Berkemer “identified two factors as
particularly relevant to determining whether a lawful investigatory stop
involves restraints generally associated with a formal arrest.”  Newton,
369 F.3d at 675.  The first is whether a
reasonable person in the same situation as the defendant would have understood
his detention to be “temporary and brief” and the second is whether such a
person would feel that he was “completely at the mercy of the police.”  Berkemer,
468 U.S. at 437-38.  Here, at least for the first few minutes of the
police questioning, a person in defendant’s position would have no reason to
believe that he was subject to constraints equivalent to a formal arrest or
that his detention was not going to be temporary or that he was at the complete
mercy of the detectives—at least according to our case law.
¶ 34.         Perhaps
the closest Vermont case is State v. Comes, 144 Vt. 103, 472 A.2d 1253,
which the majority strains to distinguish, to no avail.  In Comes,
we rejected the defendant’s argument that Miranda warnings were required
under remarkably similar facts where detectives investigating a reported
burglary of a gas station noticed particular shoeprints on a door that had been
kicked open.  The detectives confronted their suspect, the defendant, at a
restaurant, and he agreed to speak to them.  The detectives and the
defendant left the restaurant and, it being a cold day,
entered the police cruiser.  The officers told the defendant they were
investigating a gas station burglary, and one of the officers commented that
defendant’s shoe soles appeared to match footprints found at the burglary
scene.  The defendant then admitted involvement in the burglary.  At
that point, the officers advised the defendant of his Miranda rights.
¶ 35.         Noting
that the defendant voluntarily agreed to speak to the officers outside, that it
was logical for them to talk in the police cruiser on a cold winter day, that
the defendant was not handcuffed, and that only a few minutes had elapsed
before the defendant’s admission of guilt, we held that “[t]he trial court
could properly have found that until the defendant made his admission, the
officers were merely questioning the defendant and the defendant’s freedom to
leave was not restricted in any way.”  Id. at 107, 472 A.2d at 1256.  We emphasized in Comes that
police officers are not required to give Miranda warnings to everyone
they question, including those that they suspect of having committed a
crime.  Id.
¶ 36.         The
majority attempts to distinguish Comes by noting that while police in
that case “merely commented on the fact that the suspect’s shoes were similar
to footprints found at the scene, here defendant was confronted with existing
evidence of his personal involvement in the crime, including eye-witness
identification and the fact that he could be arrested based on that
evidence.”  Ante, ¶ 19.  The majority
is incorrect.  The interrogation transcript in the instant case reveals
that before defendant indicated the gun used in the incident was fake, the officers
told him only that they had spoken to the witnesses, were aware of the “fight,”
and knew who was there, where it happened, and “how it went down.”  In an
obvious effort to get defendant to talk, the detectives expressed their
interest in getting his side of the story, but advised him that they had the
means to tell how honest he was being, that they wanted to see if he would
accept “some responsibility,” and that they were seeking his “cooperation.” 
Defendant was confronted with no evidence of his involvement.  Until
the blunt question of “where’s the gun,” the officers’ patter was all general
and open-ended cajolery.  It was not until after defendant revealed
his knowledge of the gun that the officers told him to stop playing with his
cell phone and informed him that he could be arrested and charged.  Comes
is practically indistinguishable.
¶ 37.         Nor
were the initial circumstances of the questioning in this case any more
accusatory or oppressive than the police car interrogation found to be non-custodial
in Lancto, 155 Vt. 168, 582 A.2d 448.  In Lancto, an injured
suspect walking away from a crashed automobile was stopped by the responding
trooper who questioned his veracity when he claimed to have been in a fight
rather than an accident and told him to have a seat in the cruiser. 
Detecting the odor of intoxicants, the trooper questioned the suspect about
drinking preliminary to DUI processing and without the benefit of Miranda
warnings.  We upheld the trial court’s refusal to find that those circumstances
would lead a reasonable person to believe he or she was not “free to leave or
to refuse to answer questions.”  Id. at 171, 582
A.2d at 449.
¶
38.        
The situation here is similar.  There is no finding that
defendant’s agreement to speak to the detectives in private in their unmarked
car in a public place outside his home was involuntary.  Within minutes of
speaking to the officers, before they made it clear to him that they intended
to arrest him, defendant made statements acknowledging his awareness of the
gun, thus implying he was at the scene of the crime.  The fact that the
officers informed defendant at the outset of the questioning that they had
spoken to witnesses and had a good idea of what happened did not amount to a
custodial situation requiring Miranda warnings.  See State v.
Pontbriand, 2005 VT 20, ¶ 18, 178 Vt. 120, 878 A.2d 227 (“The
investigating officers undoubtedly made it clear to Pontbriand that they
thought he had committed a crime, but this is not enough to establish custody
for Miranda purposes.”). 
¶ 39.         I
agree, however, that when the detectives asserted control by restricting
defendant’s use of his cell phone and informing defendant that they had more
than enough evidence to charge him, their continued questioning required Miranda
warnings, particularly in light of defendant’s earlier admissions.  Cf. Oney,
2009 VT 116, ¶ 14 (acknowledging that “once a suspect confesses to committing a
serious criminal act, this fact is significant” in evaluating whether Miranda
warnings are required); Sole, 2009 VT 24, ¶ 19 (concluding that Miranda
warnings were required once conversation turned from traffic stop to trooper’s
reasonable suspicion of drug use and trooper indicated that defendant was not
leaving until drug issue was resolved).  It was then reasonable for
defendant to perceive himself as destined to remain in the company of the
detectives after being told, essentially, that he could be arrested and charged
for armed robbery.
¶ 40.         Accordingly,
Miranda warnings were necessary upon the detectives’ assertion of
control over defendant by curtailing his cell phone and advising they could
arrest him, so that his statements past that point must be suppressed.  I
must respectfully dissent, however, from the majority’s position that Miranda
warnings were required before any facts objectively suggested that not only was
defendant not immediately free to go, but that he was also likely to be
kept under formal arrest.
¶ 41.         I am
authorized to state that Chief Justice Reiber joins this concurrence and
dissent.

 


 


 


 


 


Associate Justice

 





[1] 
On appeal, defendant argues that the trial court’s decision was grounded in
both the Vermont and Federal Constitutions.  Although defendant cited the
Vermont Constitution in his motion to suppress, he did not argue that it
provided greater protection than the Fifth Amendment.  Further, the trial
court’s decision did not expressly base its ruling on the Vermont
Constitution.  On appeal, neither party argues that the result would be
different under the state constitutional provision.  We have held that
Article 10’s protection against self-incrimination is “synonymous” with the
privilege contained in the Fifth Amendment.  State v. Rheaume, 2004
VT 35, ¶ 18, 176 Vt. 413, 853 A.2d 1259.  Thus,
we consider the issue under federal law and do not separately address the issue
under the Vermont Constitution.


[2]
 “[A] free-to-leave inquiry reveals only whether the person question was
seized.”  Newton, 369 F.3d at 672. 
“Because seizure is a necessary prerequisite to Miranda, . . . it makes
sense for a court to begin any custody analysis by asking whether a reasonable
person would have thought he was free to leave the police encounter at
issue.”  Id.  If the answer to the “free-to-leave” inquiry is
no, the analysis is not over because “not every seizure constitutes custody for
purposes of Miranda.”  Id.; see Posr v. Doherty, 944
F.2d 91, 98 (2d Cir. 1991) (“[I]t is not enough to say a person has been arrested
simply because, due to police action, he reasonably believes he is not free to
leave.”).


[3]
 Perhaps the best illustration of how the two questions differ is a
situation where police restrict an individual’s movements while conducting a
vehicle search or executing a search warrant.  Reasonable people in such a
situation would understand they were not at liberty to leave, but would have no
reason to believe they were under actual arrest.  Cf. United States v.
Groezinger, 625 F. Supp. 2d. 145, 158-59 (S.D.N.Y. 2009) (concluding that
reasonable person whose movements in his home were restricted while police
conducted search would not have felt free to leave but neither would have
understood his freedom to be curtailed to degree associated with formal
arrest); State v. Wilkins, No. 20152, 2004 WL 1662101, at *5 (Ohio Ct. App. July 23, 2004) (concluding that reasonable
person invited to sit in police cruiser out of rain while police conducted canine
search of his vehicle was not entitled to Miranda warnings).



