Owens v. United States

340 A.2d 821, 1975 D.C. App. LEXIS 420

• Court: District of Columbia Court of Appeals
• Decided: July 7, 1975
• Docket: 8833
• Status: Published

Opinions

NEBEKER, Associate Judge:

Appellant was apprehended at gunpoint by a single police officer who, alone, had gone on the roof of the store emitting a burglar alarm. It was about 2 a. m. The officer had seen a shadow there and had gone up to investigate with his gun drawn. When he saw appellant, he ordered him to “hold it right there.” Appellant got in a prone position. Within “one or two seconds” of the apprehension, and as he was being handcuffed, appellant responded to a question as to what he was doing on the roof, saying, “Just getting tires, man.” (The store was a retail tire outlet.) We hold that statement admissible at trial. Accordingly, appellant’s conviction of attempted burglary (second degree), D.C. Code 1973, §§ 22-103 and -1801(b), is affirmed.

At the pretrial motion to suppress statements, this statement was held to be admissible — not the product of forbidden custodial interrogation under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966). A subsequent statement, made after a reading of Miranda rights, was suppressed because of the absence and unavailability at the hearing of a second officer who had performed that function and to whom appellant then spoke. However, appellant responded to the recitation of those rights by saying that “he understood them and knew them by heart.”

The real issue presented is whether a person who is apprehended in the very commission of a crime must, at that very instant, be advised of his so-called Miranda rights as a condition to the admission of testimony respecting his reply to a single inquiry seeking a justification for the seemingly criminal conduct. It would seem that the single inquiry was a part of the apprehension rather than an event separately orchestrated by the police to obtain evidence.

While it may be said that the Miranda warning requirements should be applied in a liberal and enlightened fashion, they surely cannot be applied without regard to the circumstances under which a statement is made. Such was observed in Allen v. United States, 129 U.S.App.D.C. 61, 63-64, 390 F.2d 476, 478-79 (1968), with particular reference to the “relative routineness of an inquiry” as an “indication] that the police are still in a state of investigation.” That opinion also rightly eschewed any notion that it was “possible or desirable to simplify the matter by saying that whenever any officer is prepared to detain an individual he may not ask any questions.” Id. at 64, 390 F.2d at 479.

Given then the predicate that despite the broadness of some of the language in the Miranda opinion,¹ its holding must be applied with reason and deference to the variety of possible types of on-street encounters, we shy away from an easy, mechanical application of the black-letter words, We must first look to the actual holding of Miranda, which in the context of the entire opinion is not difficult to understand. The Court stated, 384 U.S. at 471, 86 S.Ct. at 1626:

Accordingly we hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege we delineate today. .

What is significant about this language and the facts of the cases decided in that opinion is that the Court, in each instance, was confronted with a post-arrest session during which interrogation was the main or significant activity. Each suspect was “held for interrogation”. (Emphasis supplied.)

While a reading of the Miranda opinion reveals a great effort by the majority to cover broadly different degrees of restraint calling for warning as to rights and to consider all types of responses, it is clear that the opinion used the words “interrogation” and “questioning” interchangeably and without the same kind of elaboration. While it is no doubt true that the number of questions, or the “quality of [their] routineness” is irrelevant to this question (see Brewster v. United States, D.C.App., 271 A.2d 409, 412 n. 6 (1970)), the touchstone for decision cannot alone be the sheer mechanics of liberty or restraint. The court, to approach this vital area of constitutional law, should not be disposed to isolate a unitary transaction concerning the suspect and the police into separate components and test the legality of each by seconds measured on a stopwatch.

As has been observed, the situation revealed on this record is a unitary one. There was no holding “for interrogation” as surely there would have been if the same question had been asked at a time after the offense, or when the situation had cooled, in an effort to obtain evidence from the suspect which might help convict him. Here, the suspect, unless innocently on the roof, was caught in the very commission of a crime and it was during the contemporaneous securing of his hands that the officer asked the question — a question equally capable of eliciting an innocent explanation or revelation of the fact that the suspect was not alone.² The federal circuit court here recognized in Bosley v. United States, 138 U.S.App.D.C. 263, 267, 426 F.2d 1257, 1261 (1970), and we also observe,

that at some point in time during the course of the arrest it could no longer be contended that the police were without opportunity to give the Miranda warning. We believe that Miranda does require the police to warn an arrested suspect of his rights as immediately as practicable after arresting him. .

However, that does not mean that on the facts of this case the first words uttered by the officer must have been a recitation of Miranda rights as he secured the accused’s hands.³ Common sense tells us otherwise. Interrogation forbidden by Miranda is not a single question at the threshold of the encounter arguably aimed at determining the nature of the situation confronting the police. See note 2, supra.

It is of some significance in our decision to note that the Court in Miranda was keenly aware of a body of jurisprudence at the time which applied a major part of the same rule there announced. The Court observed that its new ruling for civilian courts had been a part of military law for some time. 384 U.S. at 489, 86 S.Ct. 1602. Under the Uniform Code of Military Justice (1951), Art. 31 (10 U.S.C. § 831(b) (1970 ed.), a suspect, before questioning, must be advised of the nature of the accusation and that he need not make a statement, but that if he does it may be used against him in a trial by court-martial. Significantly, the United States Court of Military Appeals has ruled on facts essentially identical to those here that Article 31 warnings were not required. See United States v. Vail, 11 U.S.C.M.A. 134, 28 C.M.R. 358 (1960) (defendants apprehended making second trip from warehouse with stolen weapons and arresting officer asked one of them where the guns had been taken during the first sojourn moments before).

The dissenting view overlooks the proposition that the exclusionary rule is not always to be invoked in a reflexive manner. Due regard must be given to the policy to be served by suppression, the degree and nature of the confrontation,'and the good faith of investigating officials, Michigan v. Tucker, 417 U.S. 433, 446-47, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974), to the end that “when balancing the interests involved, we must weigh the strong interest under any system of justice of making available to the trier of fact all concededly relevant and trustworthy evidence which either party seeks to adduce.” Id. at 450, 94 S.Ct. at 2367.

We, therefore, conclude that under the circumstances of this case, the accused’s statement was not improperly received at trial as the product of forbidden police interrogation. The judgment of conviction is

Affirmed.

1 . 384 U.S. at 444, 86 S.Ct. at 1612:

By custodial interrogation, we mean 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. . [Footnote omitted.]

384 U.S. at 477, 86 S.Ct. at 1629:

The principles announced today deal with the protection which must be given to the privilege against self-incrimination when the individual is first subjected to police interrogation while in custody at the station or otherwise deprived of his freedom of action in any significant way.

384 U.S. at 478, 86 S.Ct. at 1630:

To summarize, we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized.

We also observe that other language of the opinion recently has been significantly limited. Compare Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), with the following language from 384 U.S. at 476-77, 86 S.Ct. 1602, 1629:

Similarly, for precisely the same reason, no distinction may be drawn between inculpa-tory statements and statements alleged to be merely “exculpatory.” If a statement made were in fact truly exculpatory it would, of course, never be used by the prosecution. In fact, statements merely intended to be exculpatory by the defendant are often used to impeach his testimony at trial or to demonstrate untruths in the statement given under interrogation and thus to prove guilt by implication. These statements are incriminating in any meaningful sense of the word and may not be used without the full warnings and effective waiver required for any other statement.

See also Oregon v. Hass, -U.S. -, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975).

2 . Had a response been prefaced with “We”, the officer would have had information vital to the ongoing investigation. Presumably, our dissenting colleague would likewise suppress an incriminating response if the officer had asked, “Are you alone?”, or, “Is anyone helping you inside the store?”

3 . Bosley was decided on the grounds that simply informing the accused of the fact that a neighbor accused him of rape was not interrogation, and the court noted that there was no contention of “custodial interrogation.” Id. It would seem that such a statement by the police might be construed by an accused as implying the question, “What do you say about it?”, but such was not argued in the case.