Fredrick E. Morton v. United States

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 12-CF-2063
FREDRICK E. MORTON, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court of the
District of Columbia
(CF2-2583-12)
(Hon. Lynn Leibovitz, Trial Judge)
(Argued November 19, 2014 Decided October 29, 2015)
Justin Murray, Public Defender Service, with whom James Klein, Public
Defender Service, was on the brief, for appellant.
Anne Y. Park, Assistant United States Attorney, with whom Ronald C.
Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth
Trosman, John P. Mannarino, and Thomas A. Bednar, Assistant United States
Attorneys, were on the brief, for appellee.
Before WASHINGTON, Chief Judge, BLACKBURNE-RIGSBY, Associate Judge,
and FERREN, Senior Judge.
Opinion for the court by Chief Judge WASHINGTON.
Concurring opinion by Senior Judge FERREN at page 20.
WASHINGTON, Chief Judge: Appellant Fredrick E. Morton (“Mr. Morton”)
2
was charged with a series of crimes1 in connection with a burglary in which he
allegedly broke into an apartment and stole several items including a wallet, credit
cards, and a set of car keys which were used to steal a car parked nearby. Before
trial, Mr. Morton filed a motion to suppress certain incriminating statements he
made immediately prior to his formal arrest, arguing that he was handcuffed and
interrogated by police without the protection of Miranda2 warnings in violation of
his Fifth Amendment rights. The trial court denied the motion, and the government
used appellant‟s non-Mirandized statements to connect him to the stolen items.
The jury acquitted appellant on all charges except for one felony receiving stolen
property (RSP) count predicated on the stolen car, and one misdemeanor RSP count
predicated on the wallet and credit cards. On appeal, Mr. Morton asserts that the
trial court erred in concluding he was not in custody for purposes of Miranda at the
time he made incriminating statements. Mr. Morton argues he was in Miranda
custody, given that he was stopped on the suspicion of drug activity, chased by
police, apprehended, handcuffed, and subsequently questioned about circumstances
concerning his involvement in a crime. We conclude that, based on the totality of
the circumstances in this case, a reasonable person, in appellant‟s position, would
1
Mr. Morton was charged with second-degree burglary, first-degree theft,
unauthorized use of a motor vehicle, credit card fraud, receiving stolen property
(“RSP”) predicated on a wallet and credit cards and RSP predicated on a vehicle.
2
Miranda v. Arizona, 384 U.S. 436 (1966).
3
not have felt free to leave and terminate police questioning and was subject to a
restraint on his freedom of movement tantamount to formal arrest. Because Mr.
Morton was in Miranda custody during the police questioning, he was entitled to
Fifth Amendment protections before the officers questioned him, and therefore, the
trial court erred in denying the motion to suppress his incriminating statements.
I. Facts and Procedural History
On June 28, 2009, at approximately 8:50 a.m., Metropolitan Police
Department Officers Randy Washington and Travis Gray were on patrol in an area
in Northeast D.C. known for drug activity when they observed three men, including
Mr. Morton, standing together in an alleyway near a park. Officer Washington
testified that Mr. Morton appeared to be engaging in a “hand-to-hand” transaction.
Officer Washington did not see objects exchanged, but he suspected drug activity
and instructed Officer Gray to pull over to investigate. The officers got out of their
vehicle, approached the group, asked what they were doing, and requested to see
identification. Two of the men showed identification, but Mr. Morton patted his
pockets as if to look for identification and fled. Officer Gray pursued appellant on
foot, and after briefly staying with the other two men, Officer Washington followed
his partner. As Mr. Morton was running, Officer Washington saw Mr. Morton
4
throw a small object to the ground. Officer Washington went to the area where he
had seen the object land and found a wallet, which contained various cards and
identification.
Meanwhile, Officer Gray stopped appellant approximately 200 yards away
from where the officers had first seen the men. Officer Washington went to where
his partner had appellant detained. Mr. Morton was placed in handcuffs, which
Officer Washington testified was for the purpose of Mr. Morton‟s and the officers‟
safety. Neither of the officers brandished their weapons. Officer Washington
testified that Mr. Morton “was not under arrest, but was detained.” After appellant
was handcuffed, Officer Gray informed appellant that he was not under arrest, but
stated, “We need to know why you ran. Why would you run if you didn‟t do
anything?” Appellant responded that he ran “because [he] had a needle” on him.
The officers then asked Mr. Morton‟s name, and he responded that it was “Michael
Morton” and provided a date of birth. After the officers ran a check on the name
and it did not meet appellant‟s description, the officers engaged in a “back and forth”
with Mr. Morton concerning his identity, and Mr. Morton ultimately provided his
true name. While waiting for the dispatcher to obtain Mr. Morton‟s true name,
Officer Washington began to question Mr. Morton about the wallet he saw him
5
throw while being pursued.3 Specifically, Officer Washington asked, “What was
up with the wallet?” Mr. Morton responded, “What wallet?” and Officer
Washington replied, “The wallet that you threw. It‟s right behind you. I saw you
throw a wallet. What‟s up with the wallet?” Appellant responded, “[O]h, I found
it on the metro.” The officers then received the results of the name check from the
dispatcher, who informed the officers of a warrant for Mr. Morton‟s arrest (for
reasons unrelated to this case). At that point, Mr. Morton was placed under formal
arrest and searched. Among the items the police found on him were a set of car
keys, a Safeway receipt, and a business card for a pawn shop.
Officer Washington testified that later that day, after he arrested Mr. Morton,
he took the keys and wallet and drove to the address listed on the identification
contained in the wallet. The resident of that address, Kwesi Cobbina (“Mr.
Cobbina”), informed Officer Washington that his apartment had been burglarized
recently, that his wallet and keys had been stolen during the burglary along with his
car, and that a credit card had been fraudulently used at a Safeway store. Officer
3
There is no finding, and the record does not explicitly state at what point
Officer Washington looked into the wallet and discovered that it contained
identification belonging to a person other than Mr. Morton, but it can be inferred
from the transcript that the trial court and defense counsel believed that the officer
had done so before he questioned Mr. Morton about his identity and about the wallet
during his detention. Defense counsel acknowledged, however, that “it‟s unclear to
me” what the officers knew when questioning began.
6
Washington returned the wallet and keys to the owner, and did not preserve them as
evidence or take photos of them. The next day, Officer Washington returned to the
area of Mr. Morton‟s arrest, where he found Mr. Cobbina‟s car, containing a needle
wrapper, which Mr. Cobbina stated was not in the car before the theft.
On February 8, 2012, appellant was charged with second-degree burglary,4
first-degree theft, 5 unauthorized use of a vehicle (“UUV”), 6 credit card fraud, 7
misdemeanor receiving stolen property predicated on a wallet and credit cards
(RSP),8 and felony RSP predicated on a vehicle.9 Before trial, appellant filed a
motion to suppress his statements under Miranda, and after a hearing, the trial judge
denied the appellant‟s motion based on her conclusion that Mr. Morton was not in
custody for purposes of Miranda at the time he was interrogated by police. The
government made use of appellant‟s incriminating statements to show that appellant
possessed Mr. Cobbina‟s property and that he did so with knowledge that it was
4
D.C. Code § 22-801 (b) (2012 Repl.).
5
D.C. Code §§ 22-3211, -3212 (2012 Repl.).
6
D.C. Code § 22-3215 (2012 Repl.).
7
D.C. Code § 22-3223 (b)(1)(d)(1) (2012 Repl.).
8
D.C. Code § 22-3232 (a), (c)(2) (2012 Repl.).
9
D.C. Code § 22-3232 (a), (c)(1) (2012 Repl.).
7
stolen. Mr. Morton was tried by a jury and was acquitted on all charges except the
felony RSP charge and the misdemeanor RSP charge. Appellant was sentenced to
one year of imprisonment for the misdemeanor RSP conviction and seven years of
imprisonment for the felony RSP conviction, to run concurrently. This appeal
followed.
II. Standard of Review
When reviewing a denial of a motion to suppress, this court defers to the trial
court‟s factual findings unless clearly erroneous and considers all inferences in favor
of the prevailing party. See Griffin v. United States, 878 A.2d 1195, 1198 (D.C.
2005). All legal conclusions are reviewed de novo, including whether a suspect
was in custody for purposes of Miranda. In re I.J., 906 A.2d 249, 261-62 (D.C.
2006) (“This court will defer to the trial court‟s findings of fact, but will review de
novo whether, on those facts, the person was in custody.”).
III. Analysis
The Fifth Amendment provides that “[n]o person . . . shall be compelled in
any criminal case to be a witness against himself.” U.S. CONST. amend. V.
8
Under Miranda v. Arizona, this constitutional rule precludes the prosecution‟s use in
its case-in-chief of statements that have been elicited during custodial interrogation
without the benefit of “prophylactic warnings . . . which inform criminal defendants
of various constitutional rights,” regardless of whether those unwarned statements
would otherwise be considered “compelled.” In re I.J., 906 A.2d at 255; see White
v. United States, 68 A.3d 271, 276 (D.C. 2013). Miranda warnings are required
whenever a suspect is both (1) in custody and (2) under interrogation. Id. In the
present case, the government does not contest that the appellant was subjected to
interrogation when Officer Washington questioned him about why he fled and why
he threw a wallet while being pursued. Thus, the only question before the court is
whether Mr. Morton was in custody for purposes of Miranda when the police
questioned him.
In determining whether a person is in custody for Miranda purposes, the court
must look to the totality of the circumstances surrounding the interrogation and then
determine whether a reasonable person in those circumstances would have felt he or
she was not at liberty to terminate the interrogation and leave. See id. (citing
Thompson v. Keohane, 516 U.S. 99, 112 (1995); see also United States v. Turner,
761 A.2d 845, 851 (D.C. 2000) (“The test for determining whether a person is in
custody is an objective one . . . „based upon looking at the totality of the
9
circumstances.‟”). However, the mere fact that a suspect has been detained by
police—and thus is not free to leave— is not alone sufficient to constitute Miranda
custody. Id. “Custody is clearly more than seizure alone.” Id. The court must
apply an objective test to resolve the “ultimate inquiry,” which is to determine
whether there was either a “formal arrest or restraint on freedom of movement of the
degree associated with a formal arrest.” In re I.J., 906 A.2d at 255 (citing
California v. Beheler, 463 U.S. 1121, 1125 (1983)). Accordingly, the focus of the
inquiry in the present case should be on how a reasonable person in Mr. Morton‟s
position would have perceived his situation at the time he was questioned.10
10
At oral argument, the government contended that the “reasonable person”
test presupposes a “reasonable innocent person,” as opposed to simply a “reasonable
person” in the defendant‟s position, the latter of which could involve an analysis of
the mental state of a person who has knowledge of his own guilt. This court has
said, in dicta, that the “reasonable innocent person” analysis applied in Fourth
Amendment contexts similarly applies in Fifth Amendment contexts. See, e.g.,
White, 68 A.3d at 276 n.8; Griffin, 878 A.2d at 1198 (relying on Fourth Amendment
analysis in United States v. Gayden, 492 A.2d 868, 872 (D.C. 1985)); Castellon v.
United States, 864 A.2d 141, 152 (D.C. 2004); Turner, 761 A.2d at 851 n.7 (quoting
Florida v. Bostick, 501 U.S. 429, 438 (1991)). We decline to decide the issue,
however, because although in the present case Mr. Morton was aware of his guilt
when he was apprehended and questioned, we hold that he was in custody for
Miranda purposes under either construction of the “reasonable person” test.
10
This court has acknowledged that “the task of defining „custody‟ is a slippery
one.” White, 68 A.3d at 279 (citing In re D.W., 989 A.2d 196, 201 (D.C. 2010)).
Indeed, there is no bright-line rule “to save courts from „occasionally [having]
difficulty deciding exactly when a suspect has been taken into custody.‟” Id.
(quoting Berkemer v. McCarty, 468 U.S. 420, 441 (1984)). In In re I.J., this court
observed that confusion may arise in differentiating between a Fourth Amendment
seizure analysis and a Fifth Amendment custody analysis. In re I.J., 906 A.2d at
257 (quoting Miley v. United States, 477 A.2d 720 (D.C. 1984)) (“[E]xperience
demonstrates that the reach of Miranda is sometimes blurred in circumstances
involving a Terry encounter and the parameters of the terms „custody‟ and „arrest‟
may change with the context.”); see Turner, 761 A.2d at 851 (“On a fundamental
level, „seizure‟ and „custody‟ are not synonymous.”) (internal citation omitted).
The fact that an encounter may be a reasonable seizure within the scope of Terry for
Fourth Amendment purposes does not automatically and necessarily remove it from
Miranda‟s Fifth Amendment protections.11 See White, 68 A.2d at 284 (citing In re
D.W., 989 A.2d at 201 (“[I]t is clear . . . that an individual may be in custody even
when he was not been formally arrested.”)). The court in In re I.J. explained this in
the following way:
Should the circumstances so dictate, a person may be seized—stopped,
11
Terry v. Ohio, 392 U.S. 1 (1968).
11
frisked, handcuffed, detained, transported in a police vehicle to another
location (including a police station) and briefly questioned—so as to
allow a Terry investigation on reasonable articulable suspicion without
the encounter being deemed an arrest, within the meaning of the Fourth
Amendment, requiring probable cause. However, if the same tactics
that may be permitted by the Fourth Amendment would cause a
reasonable person in the suspect‟s situation to believe that his freedom
of action has been curtailed to a degree associated with formal arrest,
there is custody that triggers the additional protections of the Fifth
Amendment.
906 A.2d at 260. Accordingly, we proceed in our analysis of the present case with
awareness that the standard that applies in Fourth Amendment versus Fifth
Amendment contexts is distinct and may produce different outcomes.
When assessing whether a defendant is in Miranda custody, this court
considers: the degree to which police physically restrain the suspect—including
whether police use handcuffs;12 “[c]ommunications from the police to the suspect,”
and particularly, whether the police have informed the suspect that he is not under
arrest and that he may decline to answer questions;13 whether interrogation occurs in
public or in a “secluded area”; 14 the length of the detention and questioning; 15
12
White, 68 A.3d at 279.
13
Id. at 260.
14
In re I.J., 906 A.2d at 260-61.
12
whether the police questioning is “inquisitorial” or “accusatory”; 16 the show of
force or brandishing of weapons by the police; 17 and whether “the suspect is
„confronted with obvious evidence of [his] guilt‟” or the police “already have
sufficient cause to arrest, and this is known to the suspect.”18 While any of these
factors may weigh upon whether a suspect was in Miranda custody, “there is no
checklist.” White, 68 A.3d at 282. “[N]o single factor is dispositive,” and this
court “examines each case on its particular facts, and factors that may be given
significant weight in one case may be less important in a different context.” Id.
Here, appellant was stopped on a public street and restrained with handcuffs
after fleeing from and being chased down by the police. He was questioned and
confronted with evidence that was at least sufficient to establish probable cause that
he had committed a crime. However, he was told by Officer Washington that he
was not under arrest before he was questioned. Considering the totality of the
circumstances, we conclude that a reasonable person in the place of the appellant
(. . . continued)
15
In re A.J., 63 A.3d 562, 568 (D.C. 2013).
16
White, 68 A.3d at 281.
17
Bates v. United States, 51 A.3d 501, 510 (D.C. 2012).
18
White, 68 A.3d at 261 (quoting Miley v. United States, 477 A.2d 720, 722
(D.C. 1984)).
13
would not have felt free to terminate the police questioning and leave, and the
restraint involved in appellant‟s detainment was congruent to the degree of restraint
normally associated with formal arrest. Thus, appellant was in custody for the
purposes of Miranda when he made incriminating statements.
Mr. Morton‟s detention by use of handcuffs, although not strictly dispositive
on this issue, strongly militates toward a finding of Miranda custody. In White, this
court discussed at length the import that handcuffing a suspect has on the Fifth
Amendment custody analysis. That case involved a traffic stop in which the
suspect was asked to step out of the car and was handcuffed and asked questions
about whether there were illegal drugs in his car. White, 68 A.3d at 274. In that
case, the court held that handcuffing was a strong indicium of Miranda custody. Id.
at 279-81. The court noted that “handcuffing does not necessarily transform an
investigative detention into an arrest, but it is recognized as „a hallmark of formal
arrest.‟”19 Id. at 279 (citing Al-Mahdi v. United States, 867 A.2d 1011, 1023 (D.C.
2005)); see also New York v. Quarles, 467 U.S 649, 652, 655 (1984) (finding the
19
The White court observed that this court has frequently “pointed to the
absence of handcuffing as a reason why a defendant was not in custody for purposes
of Miranda.” White, 68 A.3d at 279 (citing nine cases as examples); see also 2
WAYNE LA FAVE ET AL., CRIMINAL PROCEDURE § 6.6 (f) (3d ed. 2000) (stating that
courts are “likely to find custody if there was physical restraint such as
handcuffing”).
14
defendant “undoubtedly” in custody after he was chased by police and restrained in
handcuffs); Thompson v. Keohane, 516 U.S. at 112; Al-Mahdi, 867 A.2d at 1023
(handcuffing is a severe “restraint on freedom of movement of the degree associated
with a formal arrest”). In fact, the court in White noted that neither this court nor
the Supreme Court has ever published an opinion in which it determined that a
suspect in handcuffs was not in Miranda custody. White, 68 A.3d at 279. While
handcuffing does not end the inquiry, and must be considered in context of the
totality of the circumstances, “in order to outweigh the use of handcuffs,” there must
be “strong indications on the other side of the ledger” that there was not Miranda
custody. Id.
The government argues that in the totality of the circumstances, a reasonable
person in appellant‟s situation would not have believed that his freedom had been
restrained to the degree associated with a formal arrest, and therefore, Mr. Morton
was not in custody when he made incriminating statements. In particular, the
government asserts that although Mr. Morton was handcuffed, he would not have
reasonably believed the police intended to arrest him because they told him he was
not under arrest and because their questioning was merely investigatory and not
accusatory or inquisitorial. Moreover, the government argues, because Mr. Morton
was questioned on a street and in view of the public, and his detention was
15
conducted by only two officers who did not brandish weapons, he was not in
Miranda custody. We address each of these arguments in turn.
First, the government argues that because the police told appellant that he was
not under arrest, this court, unlike in White, should hold that he was not in custody
for Miranda purposes. While the government is correct in its contention that
“[c]ommunications from the police to the suspect” are a factor in the Miranda
custody analysis, and such communications “may assuage the reasonable person‟s
assessment of the situation, and militate against a finding of custody,” the
government‟s argument ignores the fact that appellant was never told that he did not
have to answer questions posed by the police. In re I.J., 906 A.2d at 260; United
States v. Griffin, 7 F.3d 1512, 1518 (10th Cir. 1993) (“[T]he lack of police
advisement that the suspect is at liberty to decline to answer questions or free to
leave is a significant indication of a custodial detention.”). This court has stated
that “where the police specifically inform the suspect that he or she is not under
arrest, and does not need to talk to the police, a stop for investigatory purposes is
unlikely to be custodial.” In re I.J., 906 A.2d at 260 (emphasis added). Appellant
was never told that he was at liberty to decline to answer questions or that he was
free to leave. Under those circumstances, courts, including this court, have
concluded that a handcuffed suspect is in custody for Miranda purposes. See
16
Griffin, 7 F.2d at 1518; Broom v. United States, 118 A.3d 207 (D.C. 2015) (finding
custody where officers handcuffed the defendant and instructed him he was “not
under arrest” before asking accusatory questions); see also United States v. Cowan,
674 F.3d 947, 957-58 (8th Cir. 2012) (finding custody where officers handcuffed the
defendant and “[n]o one told [him] he was free to leave or to abstain from answering
questions”). Notably, this court has emphasized that police pronouncements that a
suspect is not under arrest carry less weight in the Miranda custody analysis when
the officer‟s statement is made to a suspect who is nonetheless confronted with “the
type of formality that a lay person might reasonably view as having all the indicia of
a formal arrest.” 20 See Turner, 761 A.2d at 852-53 (emphasis added) (finding
20
Other jurisdictions take a similar approach. The Second Circuit in United
States v. Newton, 369 F.3d 659 (2d Cir. 2004) explained:
[T]elling a suspect that he is not under arrest does not carry the same
weight in determining custody when he is in handcuffs as it does when
he is unrestrained. . . . Although a reasonable person told, as Newton
was, that he was not under arrest would likely have understood that he
was not about to be removed from his home to the police station—a
significant factor in assessing [custody]—a reasonable person would
also have understood that as long as the handcuffs remained in place,
his freedom of movement . . . would be restricted to a degree
comparable to that of an individual placed under formal arrest. . . .
[W]e cannot assume that a reasonable person in his situation would
have understood that the handcuffing would likely last only until the
officers had completed their search. Neither can we assume an
understanding that removal or maintenance of the handcuffs depended
on the outcome of the search rather than on the suspect‟s responding to
questions posed. Because Miranda’s safeguards become applicable as
(continued . . .)
17
custody where officers told the defendant he was “not under arrest” but also
informed him about a search warrant allowing them to obtain hair samples and
bodily fluids from him); see also In re J.F., 987 A.2d 1168, 1176 (D.C. 2010)
(finding that although the defendant was not initially in custody because he was not
handcuffed and was told he was “not under arrest and he was free to leave,” he was
later in custody when officers “became more confrontational” and told him, “before
we let you go, you need to sit here and tell us how [the sexual assault] occurred”);
Ruffin v. United States, 524 A.2d 685, 698-99 (D.C. 1987) (finding that although the
defendant was not initially in custody when he voluntarily came to the police station
and was told he was not under arrest, he was in custody when officers later
interrogated him in a “coercive atmosphere,” and gave him no further “indication
. . . that he was entitled to leave”). Accordingly, we conclude that under the
circumstances the statement to the appellant that he was not under arrest is not a
“strong indication[] on the other side of the ledger that this was not Miranda
custody” as is necessary when a suspect‟s freedom of movement is restrained by
(. . . continued)
soon as a suspect‟s freedom of action is curtailed to a degree associated
with formal arrest, we must conclude that handcuffing Newton, though
reasonable to the officers‟ investigatory purpose under the Fourth
Amendment, nevertheless placed him in custody for purposes of
Miranda.
Id. at 676-77 (internal quotation marks omitted).
18
handcuffs. White, 68 A.3d at 280.
Next, the government contends that the police questioning was “relaxed” and
“not accusatory” in support of their argument that appellant was not in custody.
We conclude that the record supports the opposite deduction: that Mr. Morton
faced accusatory and inquisitorial questions, indicating that the police officers
believed he had committed a crime. Thus, the nature of the questioning favors a
finding of custody. The police pressed Mr. Morton with questions that centered on
evidence of criminal activity and that presupposed his guilt, asking: “Why would
you run if you didn‟t do anything?” “What‟s up with the wallet?” “The wallet you
threw. It‟s right behind you. I saw you throw the wallet. What‟s up with the
wallet?” Notwithstanding the statement by Officer Gray to Mr. Morton that he was
not under arrest, a reasonable person under these circumstances, subjected to
questions by police about incriminating facts, while handcuffed, “would not . . . feel
he was at liberty to stop the questioning and leave,” and would have equated such
restraint to that of formal arrest. United States v. Martinez, 462 F.3d 903, 909 (8th
Cir. 2006) (finding custody where the handcuffed defendant was “closely
questioned about his possession of weapons” and “asked at least twice to explain the
presence of [stolen] cash”).
19
Finally, the government argues that because appellant‟s interrogation was
conducted on a public street during the day, lasting only a few minutes, and because
the police officers did not brandish their firearms, we should not conclude that
appellant was in Miranda custody. While these factors lend a measure of support
for the conclusion that the questioning was not coercive, we hold that they do not tip
the scale away from a finding of custody in light of Mr. Morton‟s physical restraint
and the nature of his questioning, discussed above. Even if handcuffing Mr.
Morton was an appropriate measure used to enable the officers to conduct an
investigation under the Fourth Amendment, the additional circumstances
surrounding appellant‟s detainment placed him in custody, thus entitling him to
Miranda warnings under the Fifth Amendment.21
IV. Conclusion
21
As we explained in In re I.J., “[w]hen an encounter becomes dominated by
police authority, the Fourth Amendment of the Constitution may not operate to
prevent the investigation, but the Fifth Amendment may require that officers must
make a choice—if they are going to take highly intrusive steps to protect themselves
from danger, they must similarly provide protection to their suspects by advising
them of their constitutional rights.” In re I.J., 906 A.2d at 260 (quoting United
States v. Perdue, 8 F.3d 1455, 1465 (10th Cir. 1993)).
20
In sum, we hold that, under the totality of the circumstances, the trial court
erred in finding Mr. Morton was not in custody for Miranda purposes, and
subsequently erred in denying his motion to suppress the statements used against
him at trial.22
Reversed and remanded.23
FERREN, Senior Judge, concurring: In footnote 10 of the court‟s opinion we
observe that, in determining “custody” under Miranda1 — an analysis that turns, in
part, on the suspect‟s mindset (“Am I free to leave or under arrest?”) — this court
has said four times, “in dicta,” that the Fifth Amendment mindset is that of a
“reasonable innocent person.”2 We, therefore, were saying that ascertainment of
22
The government does not dispute appellant‟s contention that any error in
the admission of appellant‟s statements to the officers while detained was not
harmless beyond a reasonable doubt.
23
Appellant also argues that his convictions for RSP should merge.
Because we reverse his convictions on the Fifth Amendment claim, we decline to
address the merger argument.
1
Miranda v. Arizona, 384 U.S. 436 (1966).
2
United States v. Turner, 761 A.2d 845, 851 n.7 (D.C. 2000) (quoting
Florida v. Bostick, 501 U.S. 429, 438 (1991) (holding that police officers‟ request
that bus passenger consent to search of luggage did not constitute “seizure” under
Fourth Amendment)); Castellon v. United States, 864 A.2d 141, 152 (D.C. 2004)
(quoting Turner, 761 A.2d at 851 n.7 (quoting Bostick, 501 U.S. at 438)); Griffin v.
United States, 878 A.2d 1195, 1198 (D.C. 2005) (relying on Fourth Amendment
(continued . . .)
21
this mindset under the Fifth Amendment presupposes the same, objective
assessment employed by the police when resolving, under the Fourth Amendment,
whether a suspect has consented, without coercion, to a search.3
I believe that the dictum equating these Fourth and Fifth Amendment
assessments is substantially overstated. According to the Supreme Court, a police
officer‟s “knowledge or beliefs” casting suspicion on a detainee — if “conveyed by
word or deed” to that detainee — are relevant to the extent they would affect “how a
reasonable person in that position would perceive his or her freedom to leave.” 4
“Custody,” therefore, is not determined by assuming automatically that the
detainee‟s state of mind, in responding to police questions, will always be that of a
(. . . continued)
analysis in United States v. Gayden, 492 A.2d 868, 872 (D.C. 1985)); White v.
United States, 68 A.3d 271, 276 n.8 (D.C. 2013) (quoting Turner, 761 A.2d at 851
n.7 (quoting Bostick, 501 U.S. at 438)).
3
See Bostick, 501 U.S. at 438 (holding that assessment of “consent”
resolved objectively on assumption that passenger was a “reasonable innocent
person”).
4
Stansbury v. California, 511 U.S. 318, 325 (1994) (“[A]n officer‟s views
concerning the nature of an interrogation, or beliefs concerning the potential
culpability of the individual being questioned, may be one among many factors that
bear upon the assessment whether that individual was in custody, but only if the
officer‟s views or beliefs were somehow manifested to the individual under
interrogation and would have affected how a reasonable person in that position
would perceive his or her freedom to leave.”).
22
reasonable “innocent” person.
I.
In Miranda, the Supreme Court required specified warnings to be given
during “custodial interrogation,” described 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.” 5 The Court later made
clear that custodial interrogation was not limited to the police station. In a decision
addressed to questioning at the suspect‟s home, the Court reversed the conviction
because the “suspect was under arrest and not free to leave.” 6 Later Miranda
decisions clarified that “custody” was not limited to a formal arrest; the Court
extended its meaning to curtailment of freedom of action to “a degree associated
with formal arrest.”7 Custody in the nature of an arrest therefore became the key
concept in triggering Miranda rights.
5
Miranda, 384 U.S. at 444.
6
Orozco v. Texas, 394 U.S. 324, 327 (1969); see Oregon v. Mathiason, 429
U.S 492, 494-95 (1977) (confirming that “Miranda principle” applies to questioning
after suspect “has been arrested and is no longer free to go where he pleases,” but
finding “no indication that the questioning took place in a context where
respondent‟s freedom to depart was restricted in any way”).
7
Berkemer v. McCarty, 468 U.S. 420, 440 (1984) (emphasis added)
(quoting California v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam)).
23
When a defendant argued, to the contrary, that Miranda warnings were
required at a routine traffic stop prior to a formal arrest, the Court demurred.
Defendant‟s argument was based on the language of Miranda that mandates
warnings when someone, if not formally taken into “custody,” is “otherwise
deprived of his freedom of action in any significant way.” 8 In rejecting this
argument, the Court acknowledged that a traffic stop is indeed a “significant”
deprivation of freedom.9 But it declined to grant Miranda‟s language “talismanic
power.”10 A routine traffic stop, said Justice Marshall, does not exert “pressures
that sufficiently impair [a suspect‟s] free exercise of his privilege against
self-incrimination.”11 As the Court later put it, “„the freedom-of-movement test
identifies only a necessary and not a sufficient condition for Miranda custody‟”;12
the severity of the detention is also a defining factor. In sum, “the „temporary and
relatively nonthreatening detention involved in a traffic stop or Terry stop does not
8
Miranda, 384 U.S. at 444.
9
Berkemer, 468 U.S. at 436.
10
Id. at 437.
11
Id.
12
Howes v. Fields, 132 S. Ct. 1181, 1190 (2012) (quoting Maryland v.
Shatzer, 559 U.S. 98, 112 (2010)).
24
constitute Miranda custody.‟”13
Eventually, the Supreme Court announced a hybrid, objective test, followed
to this day, that knits together (1) the freedom-of-movement inquiry and (2) the
degree of detention associated with a formal arrest.
[1] [Given] the circumstances surrounding the
interrogation[,] . . . would a reasonable person have felt he
or she was not at liberty to terminate the interrogation and
leave. [2] 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.”[14]
Factors relevant to determining how a reasonable person would have
“gauge[d] his freedom of movement” at the time the police confronted him, said the
Court, “include the location of the questioning, its duration, statements made during
13
Id. (quoting Shatzer, 559 U.S. at 113).
14
Thompson v. Keohane, 516 U.S. 99, 112 (1995) (emphasis added)
(internal quotation marks omitted) (quoted in J.D.B. v. North Carolina, 131 S. Ct.
2394, 2402 (2011)).
This court has combined the two formulations as follows: “whether there
was any show of authority or other message conveyed which would cause the
suspect to reasonably think he or she was not free to terminate the questioning and
leave and that his or her freedom was being restrained to „the degree associated with
a formal arrest.‟” In re I.J., 906 A.2d 249, 261 (D.C. 2006) (quoting Beheler, 463
U.S. at 1125).
25
the interview, the presence or absence of physical restraints during the questioning,
and the release of the interviewee at the end of the questioning.”15
The objective test for determining custody, including the mindset of a
“reasonable person” central to the freedom-of-movement inquiry, is traceable to the
Supreme Court‟s decision in Berkemer.16 There the Court said that the “only
relevant inquiry is how a reasonable man in the suspect‟s position would have
understood the situation.”17 The Court quoted a New York decision opining that
the “reasonable man test is appropriate because, unlike a subjective test, it „is not
solely dependent either on the self-serving declarations of the police officers or the
defendant nor does it place upon the police the burden of anticipating the frailties or
idiosyncrasies of every person whom they question.‟”18
More recently, in J.D.B., the Supreme Court expanded upon its reasoning in
Berkemer by emphasizing the irrelevance “of the actual mindset of the particular
15
Howes, 132 S. Ct. at 1189 (internal citations omitted).
16
Berkemer, 468 U.S. at 440.
17
Id. at 442.
18
Id. at 442 n.35 (quoting People v. Rodney P., 233 N.E.2d 255, 260 (N.Y.
1967)).
26
suspect subjected to police questioning.”19 It expressly excluded personal
“idiosyncrasies,” “particular traits,” “unknowable” circumstances, “contingent
psychological factors,”20 and “frailties”21 from police consideration when sizing up
the suspect. The Court‟s examples suggest that the definition of an irrelevant
mindset is limited primarily to a mental deficiency or other attribute that shortcuts
reason. The concern appears to be that the police could not reasonably be expected
to carry out their duties within the bounds of the law if the law governing their
conduct gave suspects the benefits of abnormalities that a police officer would not
likely perceive. None of the Supreme Court‟s examples, however, includes a
disqualifying state of mind characterized by guilt rather than innocence. Nor has
the Court to date expressly limited a “reasonable person” for Fifth Amendment
purposes to one who is presumed “innocent.”22
19
J.D.B., 131 S. Ct. at 2402.
20
Id. at 2402-04 (internal quotation and citation omitted). It is interesting
to note that in J.D.B., the Court identified a subset of “reasonable person” for
Miranda purposes, namely, a “reasonable child”— a “reality” that “courts can
account for . . . without doing any damage to the objective nature of the custody
analysis.” Id. at 2403.
21
Yarborough v. Alvarado, 541 U.S. 652, 662 (2004).
22
See United States v. FNU LNU, 653 F.3d 144, 151 n.6 (2d Cir. 2011)
(“Whether the reasonable person in the Fifth Amendment Miranda inquiry is
similarly innocent seems to be an open question.”).
27
At least two federal circuits, moreover, apparently would not exclude a
suspect‟s “guilty state of mind” from influencing his or her mindset for Miranda
purposes if the reasons for that guilty mind were “apparent to the questioning
officer.”23 The question thus becomes what this possible exception exactly means
and whether it provides a sound limitation on wholesale importation of the
“reasonable innocent person” from the Fourth Amendment into Fifth Amendment
Miranda analysis.
II.
As noted earlier, in a string of Fifth Amendment Miranda decisions, this
court, in dicta, borrowed the “innocent person” gloss on “reasonable person” from
23
Compare United States v. Erving L., 147 F.3d 1240, 1247 (10th Cir. 1998)
(“Berkemer’s „reasonable person‟ does not have a guilty state of mind and does not
have peculiar mental or emotional conditions that are not apparent to the questioning
officer.”) (quoting United States v. Little, 18 F.3d 1499, 1505 (10th Cir. 1994) (en
banc) (“[T]he particular personal traits or subjective state of mind of the defendant
are irrelevant to the objective „reasonable‟ person test . . . „other than to the extent
that they may have been known to the officer and influenced his conduct.‟”)), and
United States v. Galceran, 301 F.3d 927, 929 (8th Cir. 2002) (“[A] reasonable
person „does not have a guilty state of mind [or] . . . peculiar mental or emotional
conditions that are not apparent to the questioning officer.‟”) (quoting United States
v. Hudson, 210 F.3d 1184, 1190 (10th Cir. 2000)), with United States v. Moya, 74
F.3d 1117, 1119 (11th Cir. 1996) (“[U]nder the objective standard, the reasonable
person from whose perspective „custody‟ is determined is a reasonable innocent
person.”) (citing Bostick, 501 U.S. at 437-38).
28
the Supreme Court‟s Fourth Amendment jurisprudence.24 The Supreme Court
announced the “innocent person” limitation in Bostick,25 a Fourth Amendment case
in which police officers on a bus, without initially seizing a passenger, asked him
whether they could inspect his luggage. He consented. The officers found drugs.
In support of the passenger‟s motion to suppress, counsel argued that his client had
been unlawfully seized because he could not have “reasonably” consented to the
search; no guilty person, knowing the drugs were in the suitcase, would have done
so, said counsel. Rejecting that argument, the Supreme Court ruled that under the
Fourth Amendment, the issue of consent should be resolved objectively, solely from
the police perspective, as though the passenger were a “reasonable innocent
person.”26 This presumed state of mind is essential, the Court implied, in order to
assure that the police, in approaching a suspect, will apply a common, objective
standard — unaffected by the suspect‟s unknowable mindset — for determining
24
See supra note 2. At least four states (and probably more) have similarly
done so, including Wisconsin, State v. King, 508 N.W.2d 74 (Wis. Ct. App. 1993)
(citing Bostick, 501 U.S. at 438), Texas, Blanks v. State, 968 S.W.2d 414, 419 (Tex.
App. 1998) (citing Bostick, 501 U.S. at 438; Dowthitt v. State, 931 S.W.2d 244, 254
(Tex. Crim. App. 1996)), Virginia, Jones v. Commonwealth, 2009 Va. App. LEXIS
183, at *5 (Va. Ct. App. 2009) (quoting Bostick, 501 U.S. at 438), and Illinois,
People v. Jeffers, 849 N.E.2d 441, 446 (Ill. Ct. App. 2006) (citing Bostick, 501 U.S.
at 438).
25
See Bostick, 501 U.S. at 438.
26
Id.
29
whether a purportedly consensual search would nonetheless amount to an unlawful
“seizure.”27
Years later, in I.J., this court observed that “the Fourth Amendment inquiry is
not the same as, nor does it ultimately decide, the question of whether there was
custody under the Fifth Amendment. . . . The distinction is based on the different
interests which the two amendments safeguard.”28 The Fourth Amendment, we
said, accommodates a police officer‟s perspective (“the public‟s interest in effective
on-the-scene investigative work”) — the perspective from which the constitutional
validity of a “seizure” is judged.29 The Fifth Amendment jurisprudence from which
“custody” is evaluated, however, reflects the suspect‟s perspective (shielding the
“suspect from compelled self-incrimination”) — a protection that “places a much
higher value on the individual right at stake than on the needs of law enforcement.”30
Thus this question: can a detained suspect‟s subjective awareness of his guilt
ever support an objective determination that, as a reasonable person, he did not feel
27
See id. (quoting Florida v. Royer, 460 U.S. 491, 519 n.4 (1983)
(Blackmun, J., dissenting); Michigan v. Chesternut, 486 U.S. 567, 574 (1988)).
28
In re I.J., 906 A.2d at 257-58.
29
Id. at 258.
30
Id. at 259.
 30
free to end the police questioning and leave — contrary to the dictum that would
limit his mindset to that of a reasonable “innocent” person?
We begin with Stansbury, in which the Supreme Court explained that a police
officer‟s own “subjective view” about the guilt of a detainee under questioning
“does not bear upon the question whether the individual is in custody for purposes of
Miranda,”31 with one clear exception: “[a]n officer‟s knowledge or beliefs may
bear upon the custody issue if they are conveyed by word or deed to the individual
being detained.”32 When that happens, “those beliefs are relevant only to the extent
they would affect how a reasonable person in the position of the individual being
questioned would gauge the breadth of his or her „freedom of action.‟” 33 Or, more
specifically, as the Court summarized its ruling a few sentences later:
[A]n officer‟s . . . beliefs concerning the potential
culpability of the individual being questioned[] may be
one among many factors that bear upon the assessment
whether the individual was in custody, but only if the
officer‟s views or beliefs were somehow manifested to the
individual under interrogation and would have affected
how a reasonable person in that position would perceive
31
Stansbury, 511 U.S. at 324.
32
Id. at 325.
33
Id. (quoting Berkemer, 468 U.S. at 440).
31
his or her freedom to leave.[34]
Accordingly, as we have said, if the detainee were to be confronted with
“obvious evidence of guilt,” he could readily assume that “he would not be allowed
to leave,”35 for he would be confronted with probable cause to arrest. But
Stansbury goes further. It permits the officer‟s “knowledge” or “views” or
“beliefs” about the detainee‟s guilt, short of probable cause, to influence the
detainee‟s state of mind for Miranda purposes if “conveyed” or “manifested” to the
detainee “by word or deed.”36
It is important to emphasize that this Fifth Amendment analysis does not
credit the detainee with information unknown to the police, such as the personal
34
Id.
35
Miley v. United States, 477 A.2d 720, 722 (D.C. 1984). This court
offered the same reasoning in In re I.J.: “What otherwise would be a permissible
Terry stop should be deemed an arrest, necessitating Miranda warnings, when the
suspect is „confronted with the obvious evidence of guilt.‟ Because Miranda‟s
focus is on the perceptions of the reasonable person, it is necessary to recognize that
a suspect would reasonably believe that the police intend to arrest him because the
police have evidence against him.” In re I.J., 906 A.2d at 261 (quoting Miley, 477
U.S. at 722 (other citations omitted)).
36
Stansbury, 511 U.S. at 325.
32
idiosyncrasies and other “unknowable” circumstances referenced earlier in J.D.B.37
and Alvarado.38 Thus, as long as the detained suspect is unaware of any concrete
suspicion or evidence of his guilt harbored by the police, that detainee can be
presumed under the Fifth as well as the Fourth Amendment to have an innocent
mindset for purposes of assessing whether he, as a reasonable person, would — or
would not — feel free to “terminate the interrogation and leave.”39
In no way, therefore, is law enforcement prejudiced by permitting the
detained suspect to take into account what the police already know. The suspect
would be prejudiced, however, if his privilege against self-incrimination were
compromised by deeming him a reasonable “innocent” person for purposes of
determining his mindset when a truly reasonable person in his position would factor
in his guilty actions, known to the police, when considering whether he felt free to
snub police questioning and leave the scene.
In the present case, the police knew that appellant Morton was aware that the
police had seen him flee at high speed when he saw them approaching — an action
37
J.D.B., 131 S. Ct. at 2402.
38
Alvarado, 541 U.S. at 662.
39
Thompson, 516 U.S. at 112.
33
reflecting consciousness of guilt. And the officers saw him throw away what
turned out to be a wallet as he ran. Upon apprehending Morton, the officers knew
they would ask him, “We need to know why you ran. Why would you run if you
didn‟t do anything?” (“I had a needle on me”). And, “I saw you throw a wallet.
What‟s up with the wallet”? (“I found it on the [M]etro”). Morton, of course,
knew that the police had seen his flight, and although the police may not have looked
into the wallet when they asked him about it, they had to know that it might well
elicit at least a questionable, even incriminating, response, which it did. 40 Under
these circumstances, the police conveyed by “word” and “deed” to Morton their
“knowledge” and “beliefs” reflecting suspicion of his guilt, inevitably affecting how
Morton would “gauge the breadth” of his “freedom of action”41 — if any.
Under these circumstances, therefore, Morton‟s guilty actions — easily
perceived by the police before they spoke to him (and confirmed by his responses
about the “needle” and the “Metro”) — comprised a legitimate, indeed compelling
factor in assessing Morton‟s mindset before the police began to ask questions. And
40
Even though in asking Morton about the wallet the officer may not yet
have looked inside and found the incriminating credit card and keys, Morton did not
know that; he had every reason to believe that the police had inspected the wallet and
thus had evidence that would inevitably lead to his prosecution.
41
Stansbury, 511 U.S. at 325.
34
that mindset, inevitably informed by police awareness of his flight and the wallet,
almost assuredly would have convinced Morton that he could not end the
questioning and leave — even without reference to his handcuff restraints. As a
“reasonable person” evaluating his options, his incriminating actions, not innocence,
informed his state of mind. The police should have understood that and given
Miranda warnings before they began to interrogate Morton.42
*****
On four occasions this court has erroneously stated, in dictum, that for
purposes of ascertaining “custody” under Miranda, “[t]he reasonable person test
presupposes an innocent person.”43 In my judgment, however, the correct rule of
law, reflecting Stansbury, should be expressed more narrowly, permitting on
42
The government acknowledges in its brief (p. 28) that Morton “was
interrogated,” presumably because the questions were sufficiently accusatory to
reach the required level of compulsion. Not “all statements obtained by the police
after a person has been taken into custody are to be considered the product of
interrogation. . . . „Any statement given freely and voluntarily without any
compelling influences is, of course, admissible in evidence. . . . Volunteered
statements of any kind are not barred by the Fifth Amendment.‟ . . . „Interrogation,‟
as conceptualized in the Miranda decision, must reflect a measure of compulsion
above and beyond that inherent in custody itself.” Rhode Island v. Innis, 446 U.S.
291, 299-300 (1980) (emphasis added) (quoting Miranda, 384 U.S. at 478).
43
See supra note 2.
35
occasion the determination of a “reasonable person” by reference to his or her guilty
mind — as follows
Under the Fifth Amendment, for purposes of ascertaining
“custody” under Miranda, the reasonable person test
presupposes an innocent person unless the investigating
police officer, by word or deed, conveys to the detained
individual the officer‟s knowledge or beliefs, reflecting
suspicion or evidence of guilt, that would likely affect
how a reasonable person in that position would perceive
his or her freedom to leave. In that case, the reasonable
person test shall attribute to the detainee a mindset that
takes into account what he or she has learned from the
investigating officer.