lMPORTANT NOT|CE NOT TO BE PUBL|SHED OP|N|ON
TH|S OP|N|ON |S DES|GNATED “NOT TO BE PUBL|SHED." PURSUANT TO THE RULES OF ClVlL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(€), TH|S OP|N|ON lS NOT TO BE PUBL|SHED AND SHALL NOT BE ClTED OR USED AS BlND|NG PRECEDENT lN ANY OTHER CASE |N ANY COURT OF TH|S STATE; HOWEVER, UNPUBL|SHED KENTUCKY APPELLATE DEC|S|ONS, RENDERED AFTER .lANUARY 1, 2003, MAY BE ClTED FOR CONS|DERAT|ON BY THE COURT lF THERE lS NO PUBL|SHED OP|N|ON THAT WOULD ADEQUATELY ADDRESS THE lSSUE BEFORE THE COURT. OP|N|ONS ClTED FOR CONS|DERAT|ON BY THE COURT SHALL BE SET OUT AS AN UNPUBL|SHED DEC|S|ON lN THE FlLED DOCUMENT AND A COPY OF THE ENT|RE DEC|SION SHALL BE TENDERED ALONG WlTH THE DOCUMENT TO THE COURT AND ALL PART|ES TO THE ACT|ON.
RENDERED: FEBRUARY 16, 2017 NOT TO BE PUBLISHED
§§upreme Tnuri of Beniuckg
2016-SC-000228-MR LOUIS TORRES APPELLANT
ON APPEAL FROM FAYETTE CIRCUIT COURT V. HONORABLE JAMES D. ISHMAEL, JR., JUDGE NO. 14-CR-01189
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM CPINION OF THE COURT
AFFIRMING
On October 2, 2014, Sergeant Aaron Greenleaf was working as a detective in the Special Victirn’s Unit of the Lexington Police Department. In response to a call he received regarding a juvenile sexual assault, Sergeant Greenleaf went to the hospital and spoke with the victim, Alexisl, who Was eleven years’ old at the time. Her uncle, Louis Torres (Appellant), was identified as a suspect. Sergeant Greenleaf, along with Sergeant Brotherton and a social worker drove to Nicholasville to speak with Appellant. A uniformed
Nicholasville police office was also present.
1 Pseudonyms are being used to protect the anonymity of the child victim.
Once the two detectives arrived at Appellant’s residence around 3 A.M., they knocked on the door and were allowed inside by Appellant’s nephew, Rene. The Appellant does not challenge the officers’ entry into the home. Rene led the officers upstairs to Appellant’s room and knocked on the bedroom door. Appellant, who had been awakened, opened the door. Sergeant Greenleaf asked the uniformed Nicholasville officer to step outside because he didn’t want Appellant to feel pressured. Sergeants Brotherton and Greenleaf were wearing plain clothes and were carrying concealed weapons. Sergeant Greenleaf informed Appellant that something had come up in the family and then asked Appellant if he would accompany the officers to Lexington to speak with them. Appellant said yes.
Appellant sat in the front passenger seat of an unmarked police car during their journey to Lexington. Sergeant Brotherton informed Appellant on multiple occasions that he was not under arrest. They spoke in English and Spanish. Once they arrived at the Lexington police station, Sergeant Greenleaf interviewed Appellant. Greenleaf informed Appellant that he was not under arrest, that he was free to go, and that he did not want Appellant to think that he was keeping him there against his will. Appellant was also provided an incomplete recitation of the Miranda warnings. An interpreter was used during this entire conversation. Appellant stated that he wanted to talk. At no time during the two hour interview did Appellant ask to leave or be taken back to
his residence.
Appellant was arrested at the end of the interview and charged in Fayette County with multiple counts of sexual abuse,
Prior to trial, Appellant filed a motion to suppress the interrogation evidence. The Fayette Circuit Court made oral findings and ultimately concluded that Appellant was not in custody for Miranda purposes. As a result, Appellant entered a conditional guilty plea to three counts of first-degree sexual abuse, reserving the right to appeal the trial court’s ruling on the suppression motion. Appellant received a total sentence of twenty years’ imprisonment Appellant now appeals his judgment and sentence as a matter of right pursuant to § 110(2)(b) of the Kentucky Constitution.
Motion to Suppress
The only issue before this Court is whether the trial court erred in denying Appellant’s motion to suppress his interview with the police at the Lexington police station, Of course, the underlying issue is whether Appellant was in custody at the time of the interview or prior thereto. See Miranda v. Arizona, 384 U.S. 436 (1966). We review the trial court’s factual findings for clear error, but the question of custody is reviewed de novo. King v. Commonwealth, 302 S.W.3d 649 (Ky. 2010) (reversed on other grounds).
In Smith 1). Commonwealth, we stated that “[c]ustody does not occur until police, by some form of physical force or show of authority, have restrained the liberty of an individual.” 312 S.W.3d 353, 358 (Ky. 2010) (citing Baker v.
Commonwealth, 5 S.W.3d 142, 145 (Ky. 1999)). The United States Supreme
Court has identified more precise factors indicating that a suspect is in
custody:
[T]he threatening presence of several officers; the display of a
weapon by an officer; the physical touching of the suspect; and the
use of tone of voice or language that would indicate that
compliance with the officer's request would be compelled.
Id. citing (United States v. Mendenhall, 446 U.S. 544, 554 (1980)).
In addition, Smith also identified several other factors for courts to consider: (1) the purpose of the questioning; (2) whether the place of the questioning was hostile or coercive; (3) the length of the questioning; and (4) other indicia of custody such as whether the suspect was informed at the time that the questioning was voluntary or that the suspect was free to leave or to request the officers to do so, whether the suspect possessed unrestrained freedom of movement during questioning, and whether the suspect initiated contact with the police or voluntarily admitted the officers into the residence and acquiesced to their requests to answer some questions.
Id. at 358-59 (citations omitted).
Nearly all of the aforementioned factors weigh in favor of the trial court’s
determination that Appellant was not in custody for Miranda purposes during
his initial confrontation, transport or questioning by the officers.
Appellant testified at the suppression hearing that he felt he had no choice but to accompany the officers to Lexington. He also argues that he was not fluent in English and therefore could not understand Sergeant Greenleaf’s questioning, However, a recording of the encounter at Appellant’s residence demonstrates that Appellant had no problem understanding Sergeant
Greenleaf’s English. In addition, Sergeant Greenleaf specifically asked the
uniformed officer to step outside because he didn’t want Appellant to feel
pressured. And although Appellant may have been surprised when he was awoken by the presence of the officers inside his home, he does not challenge the officers’ entry into the home. Moreover, nothing in the record indicates that the officers threatened or physically contacted Appellant, nor did they display a threatening presence at any time.
Appellant was also not in custody while he voluntarily traveled to Lexington with the officers. Appellant was unrestrained and sat in the front seat of the officer’s unmarked vehicle during the trip. In this regard, the present case is similar to Peacher v. Commonwealth, 391 S.W.3d 821 (Ky.
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lMPORTANT NOT|CE NOT TO BE PUBL|SHED OP|N|ON
TH|S OP|N|ON |S DES|GNATED “NOT TO BE PUBL|SHED." PURSUANT TO THE RULES OF ClVlL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(€), TH|S OP|N|ON lS NOT TO BE PUBL|SHED AND SHALL NOT BE ClTED OR USED AS BlND|NG PRECEDENT lN ANY OTHER CASE |N ANY COURT OF TH|S STATE; HOWEVER, UNPUBL|SHED KENTUCKY APPELLATE DEC|S|ONS, RENDERED AFTER .lANUARY 1, 2003, MAY BE ClTED FOR CONS|DERAT|ON BY THE COURT lF THERE lS NO PUBL|SHED OP|N|ON THAT WOULD ADEQUATELY ADDRESS THE lSSUE BEFORE THE COURT. OP|N|ONS ClTED FOR CONS|DERAT|ON BY THE COURT SHALL BE SET OUT AS AN UNPUBL|SHED DEC|S|ON lN THE FlLED DOCUMENT AND A COPY OF THE ENT|RE DEC|SION SHALL BE TENDERED ALONG WlTH THE DOCUMENT TO THE COURT AND ALL PART|ES TO THE ACT|ON.
RENDERED: FEBRUARY 16, 2017 NOT TO BE PUBLISHED
§§upreme Tnuri of Beniuckg
2016-SC-000228-MR LOUIS TORRES APPELLANT
ON APPEAL FROM FAYETTE CIRCUIT COURT V. HONORABLE JAMES D. ISHMAEL, JR., JUDGE NO. 14-CR-01189
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM CPINION OF THE COURT
AFFIRMING
On October 2, 2014, Sergeant Aaron Greenleaf was working as a detective in the Special Victirn’s Unit of the Lexington Police Department. In response to a call he received regarding a juvenile sexual assault, Sergeant Greenleaf went to the hospital and spoke with the victim, Alexisl, who Was eleven years’ old at the time. Her uncle, Louis Torres (Appellant), was identified as a suspect. Sergeant Greenleaf, along with Sergeant Brotherton and a social worker drove to Nicholasville to speak with Appellant. A uniformed
Nicholasville police office was also present.
1 Pseudonyms are being used to protect the anonymity of the child victim.
Once the two detectives arrived at Appellant’s residence around 3 A.M., they knocked on the door and were allowed inside by Appellant’s nephew, Rene. The Appellant does not challenge the officers’ entry into the home. Rene led the officers upstairs to Appellant’s room and knocked on the bedroom door. Appellant, who had been awakened, opened the door. Sergeant Greenleaf asked the uniformed Nicholasville officer to step outside because he didn’t want Appellant to feel pressured. Sergeants Brotherton and Greenleaf were wearing plain clothes and were carrying concealed weapons. Sergeant Greenleaf informed Appellant that something had come up in the family and then asked Appellant if he would accompany the officers to Lexington to speak with them. Appellant said yes.
Appellant sat in the front passenger seat of an unmarked police car during their journey to Lexington. Sergeant Brotherton informed Appellant on multiple occasions that he was not under arrest. They spoke in English and Spanish. Once they arrived at the Lexington police station, Sergeant Greenleaf interviewed Appellant. Greenleaf informed Appellant that he was not under arrest, that he was free to go, and that he did not want Appellant to think that he was keeping him there against his will. Appellant was also provided an incomplete recitation of the Miranda warnings. An interpreter was used during this entire conversation. Appellant stated that he wanted to talk. At no time during the two hour interview did Appellant ask to leave or be taken back to
his residence.
Appellant was arrested at the end of the interview and charged in Fayette County with multiple counts of sexual abuse,
Prior to trial, Appellant filed a motion to suppress the interrogation evidence. The Fayette Circuit Court made oral findings and ultimately concluded that Appellant was not in custody for Miranda purposes. As a result, Appellant entered a conditional guilty plea to three counts of first-degree sexual abuse, reserving the right to appeal the trial court’s ruling on the suppression motion. Appellant received a total sentence of twenty years’ imprisonment Appellant now appeals his judgment and sentence as a matter of right pursuant to § 110(2)(b) of the Kentucky Constitution.
Motion to Suppress
The only issue before this Court is whether the trial court erred in denying Appellant’s motion to suppress his interview with the police at the Lexington police station, Of course, the underlying issue is whether Appellant was in custody at the time of the interview or prior thereto. See Miranda v. Arizona, 384 U.S. 436 (1966). We review the trial court’s factual findings for clear error, but the question of custody is reviewed de novo. King v. Commonwealth, 302 S.W.3d 649 (Ky. 2010) (reversed on other grounds).
In Smith 1). Commonwealth, we stated that “[c]ustody does not occur until police, by some form of physical force or show of authority, have restrained the liberty of an individual.” 312 S.W.3d 353, 358 (Ky. 2010) (citing Baker v.
Commonwealth, 5 S.W.3d 142, 145 (Ky. 1999)). The United States Supreme
Court has identified more precise factors indicating that a suspect is in
custody:
[T]he threatening presence of several officers; the display of a
weapon by an officer; the physical touching of the suspect; and the
use of tone of voice or language that would indicate that
compliance with the officer's request would be compelled.
Id. citing (United States v. Mendenhall, 446 U.S. 544, 554 (1980)).
In addition, Smith also identified several other factors for courts to consider: (1) the purpose of the questioning; (2) whether the place of the questioning was hostile or coercive; (3) the length of the questioning; and (4) other indicia of custody such as whether the suspect was informed at the time that the questioning was voluntary or that the suspect was free to leave or to request the officers to do so, whether the suspect possessed unrestrained freedom of movement during questioning, and whether the suspect initiated contact with the police or voluntarily admitted the officers into the residence and acquiesced to their requests to answer some questions.
Id. at 358-59 (citations omitted).
Nearly all of the aforementioned factors weigh in favor of the trial court’s
determination that Appellant was not in custody for Miranda purposes during
his initial confrontation, transport or questioning by the officers.
Appellant testified at the suppression hearing that he felt he had no choice but to accompany the officers to Lexington. He also argues that he was not fluent in English and therefore could not understand Sergeant Greenleaf’s questioning, However, a recording of the encounter at Appellant’s residence demonstrates that Appellant had no problem understanding Sergeant
Greenleaf’s English. In addition, Sergeant Greenleaf specifically asked the
uniformed officer to step outside because he didn’t want Appellant to feel
pressured. And although Appellant may have been surprised when he was awoken by the presence of the officers inside his home, he does not challenge the officers’ entry into the home. Moreover, nothing in the record indicates that the officers threatened or physically contacted Appellant, nor did they display a threatening presence at any time.
Appellant was also not in custody while he voluntarily traveled to Lexington with the officers. Appellant was unrestrained and sat in the front seat of the officer’s unmarked vehicle during the trip. In this regard, the present case is similar to Peacher v. Commonwealth, 391 S.W.3d 821 (Ky. 2013). In Peacher, this Court held that the defendant was not in custody due in part to the facts that the defendant “was not frisked and was in no way compelled or restrained. He rode, rather, as a passenger in the front seat of the detective`s unmarked vehicle.” Id. at 847. In addition, Sergeant Brotherton informed Appellant on multiple occasions during the trip that he was not under arrest.
Appellant testified that although he had been informed multiple times that he was not under arrest, he did not feel that way. However, “[t]he test is whether, considering the surrounding circumstances, a reasonable person would have believed he or she was free to leave.” Smith, 312 S.W.3d at 358. This is an objective test that is not dependent on a defendant’s subjective belief. Considering the totality of the surrounding circumstances, Appellant
was not in custody during his transportation by the officers to Lexington.
Applying the factors discussed in Smith, it is similarly clear that, on balance, Appellant was not in custody for Miranda purposes while he was being interviewed at the police station. Although police stations are certainly not the most relaxing venue for questioning, they are one of the most common. In addition, nothing in the record indicates that the officers threatened or physically contacted Appellant, nor did they display a threatening presence during the interview. See Mendenhall, 446 U.S. at 554. Furthermore, the interview lasted only two hours. This is not an unreasonable amount of time for questioning,
In Beckham v. Commonwealth, for example, the Court determined that the defendant was not in custody even though the defendant’s encounter with the police lasted over six hours. 248 S.W.3d 547, 551 (Ky. 2008). In support of its ruling, the Court noted that the interviewing officers informed the defendant that he was free to leave, that the defendant never expressed any desire to leave or cease his cooperation, and that the defendant was not physically coerced by the officers. Id. at 551-53.
Similar to Beckham, the interrogating officer in the present case, Sergeant Greenleaf, informed Appellant that he was not under arrest and that he did not want Appellant to think that he was keeping Appellant there. Appellant stated that he wanted to talk. At no time during the two hour interview did Appellant ask to leave or be taken back to his residence. Under these circumstances, “a reasonable person would have believed he or she was
free to leave.” Smith, 312 S.W.3d at 358.
Therefore, Appellant was not in custody and, thus, not entitled to Miranda warnings. As such, Sergeant Greenleaf’s incomplete recitation of the Miranda warnings prior to the interview was unnecessary and irrelevant for purposes of the foregoing analysis. Accordingly, we affirm the trial court’s denial of Appellant’s motion to suppress.
Conclusion
For the foregoing reasons, we hereby affirm the judgment and sentence
of the Fayette Circuit Court.
All sitting. All concur.
COUNSEL FOR APPELLANT: Linda Roberts Horsman Assistant Public Advocate COUNSEL FOR APPELLEE:
Andy Beshear Attorney General of Kentucky
Courtney J. Hightower Assistant Attorney General