State v. Mirquet

844 P.2d 995, 203 Utah Adv. Rep. 32, 1992 Utah App. LEXIS 219, 1992 WL 387545

• Court: Court of Appeals of Utah
• Decided: December 30, 1992
• Docket: 920066-CA
• Status: Published

Opinions

OPINION

BILLINGS, Associate Presiding Judge:

The State of Utah appeals the trial court’s grant of defendant’s motion to suppress evidence. The trial court granted the motion based on the State’s failure to provide the constitutional protections required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We affirm.

FACTS

On November 25, 1989, defendant was driving south on Interstate 15 in his 1978 Cadillac. Officer Paul Mangelson of the Utah Highway Patrol was operating a radar speed check near Nephi. He clocked defendant’s speed at 76 m.p.h. in a 65 m.p.h. zone. Officer Mangelson pulled defendant over, obtained his license and registration, asked him to enter the patrol car to see the speed recorded on the radar unit, and proceeded to write him a speeding ticket.

While defendant was in the patrol car, Officer Mangelson detected the odor of burnt marijuana. Officer Mangelson testified that he said to defendant “It’s obvious to me that you’ve been smoking marijuana. Do you care to go get the marijuana for me, or do you want me to find it?” Officer Mangelson later testified he said “It’s obvious to me you’ve been smoking marijuana. You know, there’s no question in my mind, Would you like to go to the car and get the marijuana, or do you want me to go get it?” In response, defendant went to his car and returned to the patrol vehicle with a cigarette package containing two rolled “joints.” Officer Mangelson then searched defendant’s car. In the car’s main compartment, he found a film canister with a small amount of marijuana, a pipe, and a vial that held cocaine. Officer Mangelson then searched the trunk and found a cardboard box with four or five ounces of marijuana vacuum packed in bags.

Defendant was subsequently charged with two felonies, possession of cocaine and possession of marijuana with intent to distribute. He filed a motion to suppress the evidence seized in the search of the vehicle. The trial court found defendant was in custody at the time he was told to retrieve the marijuana and, consequently, entitled to Miranda protections. . Accordingly, the court ordered the incriminating evidence suppressed.

The State filed an interlocutory appeal which we granted. In this first appeal,'we vacated the order of suppression and remanded the case for re-consideration in light of Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984), and our intervening decision, State v. Sampson, 808 P.2d 1100 (Utah App.1990).

On remand, the trial court determined “the officer accused the defendant of smoking marijuana,” “a reasonable person would probably not feel free to leave under the circumstances,” and therefore concluded “the officer’s post custodial statements amounted to an illegal interrogation.” Consequently, the court again suppressed the evidence.

Arguing the trial court on remand applied the wrong legal standard in concluding defendant was in custody and, therefore, entitled to Miranda warnings, the State again appeals. The State also argues that even if there was a Miranda violation any derivative physical evidence should be admissible unless it was recovered through the use of actual coercion.

I. CUSTODIAL INTERROGATION

The State asserts the trial court applied an incorrect legal standard in determining defendant was in custody for the purposes of Miranda. We review a trial court’s legal conclusions for correctness. Stewart v. State ex rel. Deland, 830 P.2d 306, 309 (Utah App.1992). Parsing the language of the trial court’s Findings of Fact and Conclusions of Law, the State claims the trial judge decided defendant was in custody because the court concluded a reasonable person would believe he was not free to leave if in defendant’s situation. The State argues the result might be different if the trial court had applied the proper standard — that defendant had a reasonable belief his freedom of action was curtailed to the degree associated with formal arrest. See State v. East, 743 P.2d 1211, 1212 (Utah 1987).

As a matter of federal law, an individual’s right to the protections afforded in Miranda are triggered the moment the individual is subject to “custodial interrogation.” The United States Supreme Court defines custodial interrogation as

“questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom in any significant way.” Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612[, 16 L.Ed.2d 694] (1966). The Court expanded on this definition in Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711[, 50 L.Ed.2d 714] (1977) (per curiam). “Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him ‘in custody.’ ” Id. at 495, 97 S.Ct. at 714. Later, in California v. Beheler, 463 U.S. 1121, 103 S.Ct. 3517[, 77 L.Ed.2d 1275] (1983) (per curiam), the Court stated that “the ultimate inquiry is simply whether there is a ‘formal arrest or restraint on freedom of movement’ of the degree associated with formal arrest.” Id. at 1125, 103 S.Ct. at 3520.

State v. Sampson, 808 P.2d 1100, 1104 (Utah App.1990). The question of custody is judged by an objective standard. “[T]he only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation.” Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317 (1984).

Utah courts have refined the analysis of when a person is in custody for Miranda purposes. The Utah Supreme Court, in Salt Lake City v. Carner, 664 P.2d 1168 (Utah 1983), adopted the widely held rule that a “temporary detention for the purpose of investigating alleged traffic violations” is not a custodial interrogation. Id. at 1170. The court also stated that it is “at the point the environment becomes custodial or accusatory, a police officer’s questions must be prefaced with a Miranda warning.” Id. In Camer, the court articulated four factors to consider in determining whether a defendant is in custody for the purposes of Miranda. “They are: (1) the site of the interrogation; (2) whether the investigation focused on the accused; (3) whether the objective indicia of arrest were present; and (4) the length and form of interrogation.” Id. at 1171.¹

In State v. Kelly, 718 P.2d 385 (Utah 1986), the supreme court identified another consideration that should be weighed when assessing the question of custody — the presence of a “coercive or compulsive strategy on the officer’s part” in conducting the interrogation. Id. at 391. Because of the reasonable man standard articulated in Berkemer, coercive intent should be considered as part of the form of interrogation factor. In other words, it is the manifestation of the coercive strategy that matters, not the unarticulated or unobserved intent of the officer. Cf. Berkemer, 468 U.S. at 442, 104 S.Ct. at 3151.

This court further developed the Miranda custody analysis in State v. Sampson, 808 P.2d 1100 (Utah App.1990). In addition to the four factors set forth in Camer and developed in Kelly, we recognized a fifth factor: “whether the defendant came to the place of interrogation freely and willingly.” Id. at 1105. In Sampson, we concentrated on the fourth factor — the form of interrogation. We concluded that Utah courts place “a great deal of emphasis on the form of the questioning” in assessing whether the defendant is in custody. Id. If questioning is “merely investigatory, courts have not found custody.” Id. (citing Kelly, 718 P.2d at 391). However, the moment the questioning becomes accusatory “custody is likely and Miranda warnings become necessary.” Id. (citing Carner, 664 P.2d at 1170; Kelly, 718 P.2d at 391). The court identified the change from investigatory to accusatory questioning as happening when the “ ‘police have reasonable grounds to believe that a crime has been committed and also reasonable grounds to believe that the defendant has committed it.’ ” Id. 808 P.2d at 1106 (quoting Carner, 664 P.2d at 1171).

Our review of the case law convinces us, as contended by the State, the proper inquiry as to whether a defendant is in custody for the purposes of Miranda is whether a reasonable person in defendant’s position would believe his “freedom of action is curtailed to a degree associated with a formal arrest.” East, 743 P.2d at 1212. However, we do not believe the trial court departed from that standard in this case. We are persuaded the trial court applied the correct legal standard. Our previous remand contained specific directions to determine the custody issue under the standard advanced by the State. We directed the trial court to reconsider its prior ruling in light of Berkemer. That case holds it “settled that the safeguards prescribed by Miranda become applicable as soon as a suspect’s freedom of action is curtailed to a ‘degree associated with formal arrest. Berkemer, 468 U.S. at 440, 104 S.Ct. at 3150 (quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983) (per curiam)). Furthermore, where, as here, the evidence is essentially undisputed and the undisputed facts support a determination that defendant was in custody, the mere failure to recite the precise words of the custody standard does not demand a remand for more specific findings. See, e.g., Flying Diamond Oil v. Newton Sheep Co., 776 P.2d 618, 622 (Utah 1989) (holding remand unnecessary where undisputed facts allow appellate court to “fairly and properly resolve the case on the record”); State v. Vincent, 845 P.2d 254 at 259 n. 8 (Utah App.1992) (reversing trial court’s ruling of indigency based on undisputed facts in the record); State v. Lovegren, 798 P.2d 767, 771 n. 10 (Utah App.1990) (upholding legality of stop despite lack of findings where undisputed facts showed clear statutory violation).

Applying the factors Utah case law has focused upon to determine custody to the undisputed facts in the record supports the trial court’s determination that defendant was in custody.

Focusing on the first factor, the site of the interrogation, defendant was questioned in a police car. This does not lead to a conclusion of custody as readily as a station house interrogation. It is not, however, as free of compulsion as questioning on a sidewalk or outside of the police car. The location of the stop also bears on this element. The defendant was pulled over alongside an interstate highway in rural Utah. He was thus subject to a more police dominated setting than a citizen pulled over in an urban area where passing motorists are going slower and pedestrians are present. Thus, while not conclusive, this factor points toward custody.

The second factor of whether the investigation focused on defendant also supports a conclusion of custody. Clearly, Officer Mangelson’s investigation focused solely on defendant.

The third factor, whether the objective indicia of arrest were present, neither compels a determination of custody nor is completely devoid of some indications of custody. Granted there were no “readied handcuffs, locked doors or drawn guns,” Carner, 664 P.2d at 1171, yet defendant was isolated in a patrol vehicle with an officer accusing him of a crime. One element of any arrest is going to be such an accusation. Another objective indication of arrest can be found in the trial court’s finding that, under the circumstances, a reasonable person would not have felt free to leave. The dissent argues that allowing the defendant to make an unaccompanied trip to his car to retrieve the marijuana is a fact which supports a conclusion that defendant was not in custody. However, the proximity of the cars, the officer’s opportunity to maintain constant surveillance, and the limited time period, all limit the significance of this fact.²

The fourth factor, the length and form of the interrogation, including evidence of the officer’s coercive intent, is the most significant factor bearing on this case. The Utah Supreme Court has noted that accusatory questioning by a police officer requires Miranda warnings. Id. at 1170. The court has also noted the significance of a coercive strategy in the officer’s questioning as an important consideration. Kelly, 718 P.2d at 391. We have likewise recognized the crucial significance of accusatory questioning.³ Sampson, 808 P.2d at 1105-06.

In the patrol car, Officer Mangelson said to defendant, “It’s obvious to me that you’ve been smoking marijuana. Do you care to go get the marijuana for me, or do you want me to find it?” This question is clearly an accusation of criminal activity. At the suppression hearing, Officer Man-gelson testified that the moment he detected the aroma of marijuana there was no question in his mind whatsoever that the defendant had been smoking marijuana. At this point Officer Mangelson had reasonable grounds to believe both a crime had been committed and defendant had committed the crime. The questioning that followed was an attempt to get evidence to support that conclusion. The form of Officer Mangelson’s question was not only likely to elicit an incriminating response, it precluded any nonincriminating response. This question manifested Officer Mangel-son's coercive intent. Therefore, the fourth factor strongly supports the trial court’s determination of custody.

Finally, the fifth factor of freely coming to the place of interrogation provides some support for the trial court’s conclusion. It would be the rare individual stopped for speeding who could be said to be there freely or willingly.

In summary, the evidence relevant to factors (1), (2), (3), and (5) does not compel a conclusion of custody. To varying degrees, however, each provides some indication of custody. Those factors combined with the accusatory nature of the questioning, the coercive intent of Officer Mangel-son, and the likelihood that his question would elicit an incriminating response, lead us to agree with the trial court that a conclusion of custody is inescapable. The established facts in this case allow no conclusion except that a reasonable person in defendant’s situation would believe his freedom of action was curtailed to the extent associated with formal arrest.

Furthermore, the trial court’s memorandum decision following the second suppression hearing indicates the State’s basic theory is based on a misreading of the decision.⁴ The State argues the court decided defendant was in custody solely because a reasonable person would not feel free to leave. The opening paragraph of the memorandum decision provides: “The Court finds the defendant was in custody for the purposes of Miranda v. Arizona, 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694] (1966) and that it would appear to the reasonable individual that he would be in custody under the circumstances of this case.” The use of “and” indicates the custody determination for Miranda purposes was separate from the finding that a reasonable person would not feel free to leave. Even more explicitly, the memorandum decision later states: “The Court finds that because the officer accused the defendant of smoking marijuana, and the officer’s sworn testimony that a reasonable person would probably not feel free to leave under the circumstances, 'that the Defendant would be considered in custody at the point of the accusation.”

Thus, the custody conclusion is explicitly based on two facts, the officer’s accusatory questioning and the perception by defendant that he was not free to leave. Reading the above two passages together indicates the “free to leave” determination is essentially a supplemental finding which supports the court’s ultimate conclusion of custody.

In sum, we agree with the trial court that defendant was in custody and Officer' Mangelson had the obligation to provide him the appropriate Miranda warnings.⁵ We, therefore, affirm the trial court’s ruling that defendant’s Miranda rights were violated.

II. SUPPRESSION OF EVIDENCE

The State argues that regardless of any Miranda violation the derivative physical evidence should be admitted unless the defendant was subject to actual coercion. See, e.g., United States v. Gonzalez-Sandoval, 894 F.2d 1043 (9th Cir.1990); State v. Dellorfano, 128 N.H. 628, 517 A.2d 1163 (1968); State v. Wethered, 110 Wash.2d 466, 755 P.2d 797 (1988); but see United States ex rel. Argo v. Platt, 673 F.Supp. 282 (N.D.Ill.1987). However, the record indicates this argument is made for the first time on appeal.

“As a general rule, we will not review a claim on appeal unless ‘a contemporaneous objection or some form of specific preservation of claims of error’ has been made a part of the record” during the proceedings before the trial court. State v. Scheel, 823 P.2d 470, 473 (Utah App.1991) (quoting State v. Johnson, 774 P.2d 1141, 1144 (Utah 1989)). Accordingly, we do not reach the question of the appropriate remedy for the Miranda violation because the State did not provide the trial court the opportunity to address the issue.⁶

CONCLUSION

Because the undisputed facts and the findings of the trial court support its conclusion that defendant’s Miranda rights were violated, we affirm the trial court’s ruling. Further, because the State did not raise the issue of the appropriate remedy for the Miranda violation at trial, we do not consider this issue on appeal. We therefore affirm the suppression order.

ORME, J., concurs.

1 . We disagree with the dissent that Carrier's persuasiveness has somehow been diminished by Berkemer. Carrier sets out factors that are important for trial judges to consider in reaching the ultimate conclusion of whether a reasonable person would believe his freedom of action was curtailed to the degree associated with formal arrest. Furthermore, in California v. Beheler, 463 U.S. 1121, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) (per curiam), the Court explicitly recognized that the "circumstances of each case must certainly influence" the custody determination. Beheler, 463 U.S. at 1125, 103 S.Ct. at 3520. As the Court noted in Berkemer, the question answered by the custody determination is whether a "stop exerts upon a detained person pressures that sufficiently impair his free exercise of the privilege against self-incrimination.” Berkemer, 468 U.S. at 437, 104 S.Ct. at 3149. The Camer factors provide a framework for answering that question in reference to the circumstances of each case.

In this vein, we note that Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977) (per curiam), which set forth the requirement that an individual be "in custody," was decided six years before Camer. Also, in State v. East, 743 P.2d 1211 (Utah 1987), decided years after Berkemer, our supreme court cites Carner with approval. Likewise, this court in State v. Sampson, 808 P.2d 1100 (Utah App.1990), applied the Camer analysis. We believe Camer's precedential value remains undiminished.

2 . The dissent takes us to task for this list of relevant facts. These facts are merely reasonable inferences from undisputed facts in the record. As our supreme court has stated: “Perhaps the most basic principle of appellate review is that we must view the evidence and the reasonable inferences to be drawn therefrom in the light most favorable to sustaining the trial court’s decision.” Bagnall v. Suburbia Land Co., 579 P.2d 914, 916 (Utah 1978) (emphasis added).

At the suppression hearing Officer Mangelson was the only witness. He testified that he pulled Mirquet’s vehicle over "by use of a red light," "approached the driver’s side,” and "invited him back to my patrol car.” After being accused of drug use, defendant "went to his car and came back with a package of Carlton cigarettes.” Officer Mangelson also testified that when he decided to search the car, Mirquet first "went up” to the car to leash a dog. We believe it is eminently reasonable to infer from this testimony that the cars were close, the officer’s car was behind Mirquet’s car giving the officer the opportunity to observe the defendant, and the events happened in a short period of time. In fact, the inferences we draw are probably reasonable in all routine traffic stops.

3 . The dissent argues that because the questioning in Berkemer and Beheler was "accusatory,” and the Court found the defendants in those cases were not in custody, we cannot rely on this factor. However, Berkemer only indicates the officer "asked respondent whether he had been using intoxicants.” Berkemer, 468 U.S. at 423, 104 S.Ct. at 3141. This is neither accusatory nor unduly coercive. Likewise, in Beheler, the nature of the questioning is alluded to in passing in the "facts” portion of the opinion and ignored during the Court's cursory analysis. The dissent places too much emphasis on such superficial references.

4 . We are puzzled by the dissent’s reluctance to utilize the entire record before us. The dissent limits itself to a review of the trial courts findings of fact and conclusions of law. It refuses to accord any value to the trial court’s memorandum decision. We note that the findings were drafted by defense counsel whereas the memorandum decision was authored by the judge. We therefore find it more instructive as to the court's reasoning.

The dissent’s reliance on State v. Rio Vista Oil, Ltd., 786 P.2d 1343 (Utah 1990), to justify the blind eye it turns to the memorandum decision is misplaced. The question in Rio Vista was whether the court had reached a decision on an issue when there was a direct conflict between the findings and the memorandum decision. See id. at 1347. Here, we are concerned with the court’s analytical process, thus use of the entire record is appropriate.

5 . Fifth Amendment protections apply only to testimonial acts. Baltimore City Dept. of Social Services v. Bouknight, 493 U.S. 549, 110 S.Ct. 900, 107 L.Ed.2d 992 (1990). The State concedes that defendant’s act of retrieving the marijuana was testimonial and the equivalent of an incriminating statement. See id.; State v. Wethered, 110 Wash.2d 466, 755 P.2d 797, 798-800 (1988).

6 . See State v. Quintana, 826 P.2d 1068 (Utah App.1991) (passing reference by state in trial court insufficient to preserve issue of timeliness of withdrawal of guilty plea for court of appeals); see also State v. Archambeau, 820 P.2d 920 (Utah App.1991) (constitutional claim will only be heard for first time on appeal if it presents plain error or exceptional circumstance).