Opinion
NO. 2018-CA-000076-MR
05-22-2020
TERRY L. CROWE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Robert C. Yang Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General Lauren R. Massie Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM NELSON CIRCUIT COURT
HONORABLE JOHN DAVID SEAY, JUDGE
ACTION NO. 16-CR-00350 OPINION
AFFIRMING
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BEFORE: ACREE, COMBS, AND MAZE, JUDGES. ACREE, JUDGE: Terry Lee Crowe appeals from the Nelson Circuit Court's September 22, 2017, order denying his motion to suppress evidence obtained during police questioning. We find no error and affirm.
FACTS AND PROCEDURE
While investigating a murder, officers of the Bardstown Police Department (BPD) pursued a person of interest to a residence on Johnson Street in Bardstown. With the resident's permission, police entered the home to look for him. They discovered him hiding among the insulation in the attic. Crowe was hiding with him in the attic insulation. An officer patted Crowe down to check for weapons, but none was found.
Police then obtained a warrant to search the residence and the persons of the four individuals then at the location, including Crowe. To effectuate the search, the police took Crowe and the others outside, handcuffed, and then placed them in cruisers for transport to the police station where they were interrogated separately.
Detective Lynn Davis testified that agents of the Bureau of Alcohol, Tobacco, and Firearms (ATF) were involved, requiring the structure to be vacated to allow its canine unit to conduct a search. Because "it was very hot that day," the detainees were placed in cruisers with the air conditioning running while the BPD and ATF officers waited on the search warrant.
At the station, Crowe was taken to the office of Detective Lynn Davis, who interrogated him. He was cooperative with the detective. After Crowe's handcuffs were removed, Detective Davis read him his Miranda rights and Crowe signed an acknowledgement that he had been read his rights. The detective began asking questions about the murder. After about thirty minutes, Detective Davis concluded Crowe had little to provide to his investigation.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
However, Detective Davis had learned from interrogating two of the three other detainees that Crowe was at the Johnson Street property to sell cocaine and still had the drugs on him. The detective testified that,
When the interview was over [regarding the murder investigation], I told Mr. Crowe, that we knew he was there selling cocaine and, basically, just to hand it over. He became very nervous, and he was worried about getting in trouble if he did [turn it over] and I told him that, you know, today's emphasis is, you know, we're not looking to catch a drug case, but they said you got it on you. I put on a rubber glove. He reached into his undershorts or undergarments and handed me out a ball of cocaine.
Crowe corroborated Detective Davis's testimony, even though from a different perspective. According to Crowe, "Detective Davis said, 'Don't lie to me, give it up, I know you've got it [the cocaine].' I stood there for a minute, hesitated. He said, 'It's gonna be worse if you don't give it up.'" According to Crowe, it was then that Detective Davis put on a latex glove and Crowe became nervous. He retrieved a baggy of cocaine and placed it in Detective Davis's gloved palm. As Crowe told it, "I thought he was going to search me if I didn't give it up. I was intimidated."
Detective Davis did not arrest Crowe, who then left the station. The detective testified that he "didn't have time to deal with a drug case. We were working on, concentrating on, solving a murder. I sealed up the cocaine and the money that was taken from him and turned it over to the Hardin County Drug Task Force to let them continue with the drug investigation if they wanted."
When Crowe testified, he was asked nothing and said nothing on direct or cross-examination regarding whether he was read his Miranda rights. The trial court took the matter under submission.
On September 22, 2017, the trial court entered findings of fact, conclusions of law, and an order denying the suppression motion.
There are only two findings of fact that Crowe disputes and that are pertinent, therefore, to this appeal. The first of those facts, and the resultant conclusion of law, appear in the trial court's discussion of Crowe's argument regarding the state of his custody, as follows:
[Crowe] was found hiding in the attic insulation with the person of interest in the homicide so, at that point, police had a reasonable suspicion that [Crowe] could have been involved with that crime. [Crowe] was not arrested. He was handcuffed for the ride to the station; the cuffs were removed at some point after arriving. The court finds [as a matter of law] the seizure of [Crowe] was lawful so the suppression of the suspected drugs obtained from him later at the police department is not necessary.(Record (R.) at 78 (emphasis of challenged finding of fact added)).
The second challenged finding of fact is found earlier in the order where the court says, "Davis advised Crowe of his Miranda rights." (R. at 77).
After the suppression motion was denied, Crowe entered a conditional guilty plea. This timely appeal followed.
STANDARD OF REVIEW
Our review of a trial court's decision on a motion to suppress is two-fold. First, we must determine whether the trial court's findings of fact are supported by substantial evidence. If so, then they are conclusive. Williams v. Commonwealth, 364 S.W.3d 65, 68 (Ky. 2011). Second, we review de novo the trial court's application of the law to those facts. Brown v. Commonwealth, 416 S.W.3d 302, 307 (Ky. 2013).
ANALYSIS
Crowe argues that the trial court erred by concluding he was not arrested, that the police did not have probable cause to place him in custody, that he was not Mirandized and, therefore, that his handing over of evidence against himself under police compulsion violated his Constitutional right against self-incrimination. We conclude that although Crowe was not formally arrested, the record clearly supports the conclusion that he was in custody when he gave the police his cocaine. However, we conclude the record is equally clear that the police were justified in taking him into custody, that he was read his Miranda rights, and that he voluntarily gave the officer his supply of cocaine.
The trial court said Crowe was not arrested when he was handcuffed and transported to the police station for questioning, and Crowe disputes that finding of fact. But the issue here is not whether there was a formal arrest. The issue is more a mixed question of law and fact regarding whether Crowe was in custody. We conclude he was.
"The inquiry for making a custodial determination is whether . . . there was a restraint on freedom of movement to the degree associated with formal arrest." Galloway v. Commonwealth, 424 S.W.3d 921, 927 (Ky. 2014) (citation omitted). "The test is whether, considering the surrounding circumstances, a reasonable person would have believed he or she was free to leave." Id. (citation omitted). "Some of the factors that demonstrate a seizure or custody have occurred are the threatening presence of several officers, physical touching of the person, or use of a tone or language that might compel compliance with the request of the police." Commonwealth v. Lucas, 195 S.W.3d 403, 405-06 (Ky. 2006) (citing Baker v. Commonwealth, 5 S.W.3d 142, 145 (Ky. 1999)).
Whether custody occurred cannot be determined by bright-line rules but must be made only after considering the totality of the circumstances of each case. Jackson v. Commonwealth, 187 S.W.3d 300, 310 (Ky. 2006). In Oregon v. Mathiason, 429 U.S. 492, 97 S. Ct. 711, 50 L. Ed. 2d 714 (1977), the United States Supreme Court stated that "[a]ny interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime." Id. at 495, 97 S. Ct. at 714. Here, there is far more evidence than that.
Given the circumstances, a reasonable person would not have believed he was free to leave the police station after being interrogated regarding a murder until the officer questioning him said he was free to leave. That did not occur until after Crowe gave Detective Davis the cocaine.
On this point of error, we agree with Crowe. However, that alone is not enough to justify reversing the trial court's ruling on suppression.
Crowe claims the police did not have probable cause to place him in custody because there was no arrest warrant, Crowe did not commit any offense in the presence of an officer, the pat-down search of his person did not reveal a weapon, and the police had no information indicating he was involved in criminal activity. We do not agree.
"To determine whether an officer had probable cause to make an arrest, a court must examine the events leading up to the arrest, and then decide 'whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to' probable cause." Jackson v. Commonwealth, 343 S.W.3d 647, 653-54 (Ky. App. 2011) (quoting Maryland v. Pringle, 540 U.S. 366, 366, 124 S. Ct. 795, 797, 157 L. Ed. 2d 769 (2003)). Whether probable cause exists "is based on an analysis of the facts considering the totality of the circumstances." Stewart v. Commonwealth, 44 S.W.3d 376, 379 (Ky. App. 2000) (citations omitted).
Crowe was discovered by police during the lawful search of a home, hiding in attic insulation, lying next to the target of that search, a person of interest in a murder investigation. This alone is evidence that Crowe was engaged in criminal activity. See Day v. Commonwealth, 361 S.W.3d 299, 303 (Ky. 2012) (flight and avoiding being discovered are admissible evidence of guilt). When he was found hiding, he was closely associated, in a physical sense at least, with the target of a murder investigation. Under these and related circumstances set out previously, we have no difficulty concluding probable cause existed for taking Crowe into custody to transport him to the police station where he could be interrogated.
Next, Crowe disputes the trial court's finding that Detective Davis read Crowe his Miranda rights. This Court has carefully examined the record, and especially Crowe's testimony at the suppression hearing. He never disputed this fact. We acknowledge that the order denying the motion includes a footnote that states as follows:
Detective Davis testified that he read the defendant his Miranda rights and that the defendant signed a written
waiver of his rights. The document was not presented during the suppression hearing. The defendant testified he was not read his rights nor did he sign a waiver. Weighing the evidence, the court finds Detective Davis's testimony to be the more credible.(R. at 77, n. 3). With all due respect to the trial court, there are two statements of fact in that footnote not supported by this record. First, as already noted, Crowe never said a word about Miranda rights or warnings. Second, Detective Davis did not testify that Crowe signed a waiver of his Miranda rights. He said Crowe signed an acknowledgment form that his rights were read to him.
The trial court also made the mistake of saying, "Detective Chris Smith was also present," during the interrogation of Crowe. In fact, Detective Davis testified that it was Officer Jason Woodson. Detective Smith was the officer who obtained the search warrant for the house and the occupants, including Crowe. Given the workload of our trial courts, such mistakes are somewhat unavoidable. In this case, the trial court gave the defendant credit for helpful, even if unpersuasive, testimony he never gave. We also add that the Department of Public Advocacy (DPA), which also strains under a heavy workload, assigns a lawyer other than trial counsel to advocate in this Court. Consequently, we do not fault DPA appellate counsel, who necessarily is less familiar with the record than trial counsel, for representing that Crowe had testified as the trial court had indicated in footnote 3 of the order. --------
There is no error in this finding of fact. Therefore, we need not consider the trial court's alternative rationale that "[t]he [Self-Incrimination] Clause cannot be violated by the introduction of nontestimonial evidence obtained as a result of voluntary statements." United States v. Patane, 542 U.S. 630, 637, 124 S. Ct. 2620, 2626, 159 L. Ed. 2d 667 (2004) (citations omitted).
We also see no problem in any shift from interrogating Crowe regarding the murder to interrogating him about selling cocaine. To the extent that shift was deemed some kind of disruption, it did not impact the prophylactic effect of the Miranda warnings. Miranda does not require that the warnings be repeated each time the interrogation process is resumed after an interruption. United States v. Delay, 500 F.2d 1360, 1365 (8th Cir. 1974); Evans v. Swenson, 455 F.2d 291, 296-97 (8th Cir. 1972), cert. denied, 408 U.S. 929, 92 S. Ct. 2508, 33 L. Ed. 2d 342 (1972); Miller v. United States, 396 F.2d 492, 496 (8th Cir. 1968), cert. denied, 393 U.S. 1031, 89 S. Ct. 643, 21 L. Ed. 2d 574 (1969). "In each case, the ultimate question is: Did the defendant, with a full knowledge of his legal rights, knowingly and intentionally relinquish them?" Miller, 396 F.2d at 496. There being no dispute that Crowe's Miranda rights were made known to him by Detective Davis, we conclude Crowe knowingly and voluntarily turned over to the police evidence that could be used against him.
Crowe points out, and this Court acknowledges, the absence of two pieces of evidence: (1) Crowe's acknowledgement that he was read his Miranda rights; and (2) a transcript of any kind documenting Crowe's interrogation. His concern is justified, but neither unforgiveable nor unexplainable. Detective Davis's interest in Crowe's drug dealings, as revealed by his testimony, was near non-existent. He was so disinterested, in fact, that despite Crowe's commission of a crime in his presence, in the police station, he allowed Crowe to leave without arresting him. The detective simply collected the evidence and passed it on to the drug task force. It was more than five months later that the task force brought charges against Crowe.
Detective Davis specifically testified that, although he did not bring the form with him, he could retrieve it, we suppose from the file of the murder investigation where it was related to Crowe's interrogation in the murder investigation. Then, there is the lack of a transcript of Crowe's interrogation.
Crowe was questioned in an office shared by three detectives, not in an interrogation room that would have been equipped with a recording device. We know that other detainees were being interrogated simultaneously and the logistical need to interview Crowe elsewhere than an interrogation room would help explain the lack of a recording. As the detective said, Crowe had nothing to offer regarding the murder; that would imply there was nothing to memorialize by a recording.
To the extent these circumstances are troubling, they are not justification for reversing the trial court's order denying the suppression motion.
CONCLUSION
Based on the foregoing, we affirm the Nelson Circuit Court's September 22, 2017, order denying Crowe's motion to suppress.
ALL CONCUR. BRIEF FOR APPELLANT: Robert C. Yang
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General Lauren R. Massie
Assistant Attorney General
Frankfort, Kentucky