State v. Hieu Tran

2012 VT 104, 71 A.3d 1201, 193 Vt. 148, 2012 WL 6633999, 2012 Vt. LEXIS 103

• Court: Supreme Court of Vermont
• Decided: December 21, 2012
• Docket: 2011-341
• Status: Published

Opinions

Skoglund, J.

¶ 1. 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 (6th 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.

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.