Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F08903500. Robert H. Oliver, Judge.
Michael Allen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman, Angelo S. Edralin, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Cornell, J., and Kane, J.
PROCEDURAL HISTORY
Appellant Derrek Allen Smith was charged with felony second degree robbery, misdemeanor possession of a deadly weapon with intent to assault, and misdemeanor assault. The information also alleged that Smith had used a deadly weapon in the commission of the robbery within the meaning of Penal Code section 12022, subdivision (b)(1). After trial, the jury found Smith guilty of all three charges and found the personal-use allegation true.
Smith was sentenced to the mitigated term of two years on the robbery, with an additional one year for the enhancement, for a total term of three years. Smith was sentenced to time served on the misdemeanor counts.
Prior to trial, Smith sought to exclude incriminatory statements he made prior to arrest and prior to receiving Miranda warnings. After conducting an evidentiary hearing on the issue, the trial court denied the motion and the statements were admitted. The denial of the motion is the sole issue raised on appeal.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
FACTUAL SUMMARY
On May 25, 2008, Fresno Police Officers Gabriel Ramirez and Eric Panabaker were just finishing one call when they were alerted to an altercation. Ramirez then saw two vehicles approaching him. Smith was driving a pickup. Albert Araiza was driving a large Chevy truck. Katheryn Rogers was a passenger in Smith’s pickup truck. Smith and Rogers jumped out of their pickup truck and claimed that Araiza was trying to run them off the road and kill them. Araiza exited his truck and denied this, saying that Smith and Rogers had stolen his wallet and he was trying to recover it. Smith and Rogers denied knowing anything about the wallet. Araiza said the wallet had fallen off his truck and when he stopped to pick it up, Rogers jumped out of their pickup truck and grabbed it and then Smith drove off. Araiza followed them. Smith tried to run Araiza off the road and, at some point, Smith threatened Araiza with a machete and tried to puncture Araiza’s tire with a dagger. Further details of the underlying incident are not relevant to the issues on appeal.
The officers separated the three individuals, seating Rogers and Smith on the curb and talking to Araiza separately. Panabaker then noticed that Araiza’s wallet was in the back of Smith’s pickup truck and told Ramirez. The officers also found a machete and a dagger in Smith’s pickup truck. At that point, Ramirez decided that Smith and Rogers should be separated. Because it was hot, the officers placed Smith and Rogers separately in the back of the two patrol cars. Ramirez asked Smith and Rogers to sit in the back of the patrol cars while the officers finished the investigation because it was cooler in the patrol cars. Neither Smith nor Rogers objected. Smith never asked to leave. Smith and Rogers were told they were not under arrest, only being detained for further investigation. They were not handcuffed.
Ramirez conferred with Panabaker and two other witnesses for about 10 to 15 minutes. He then spoke with Rogers, who remained in the back of the patrol car. Ramirez stood outside the patrol car with the door open. Their conversation lasted for about five or 10 minutes. About 20 to 25 minutes after placing Smith in the car, Ramirez returned to talk to Smith. Smith stuck his feet out and talked with Ramirez while still seated. Ramirez was standing with the door open. Ramirez told Smith he did not believe Smith was being truthful and that Rogers had told him about the wallet. This conversation lasted five to 10 minutes.
Smith had initially told Ramirez that Smith had stopped the pickup truck to let Rogers pick up a kitten in the road. When Ramirez told Smith that Rogers had already said she had taken the wallet and other witnesses had said Rogers exited the pickup truck with a kitten in her hands, Smith sighed and admitted that he knew about the wallet but was scared. This statement was made before Smith was formally placed under arrest and before he was given Miranda warnings. After Ramirez spoke with Rogers, Smith was a suspect and Ramirez would have placed Smith under arrest and Mirandized him had Smith asked to leave after this point.
DISCUSSION
Before a police officer may interrogate a defendant who is in custody, the officer must give the defendant Miranda warnings. (People v. Huggins (2006) 38 Cal.4th 175, 198.) Miranda requires that a person questioned by police after being taken into custody must first be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed, during questioning. (Miranda, supra, 384 U.S. at pp. 444–445.) Miranda is applicable only when a defendant has been taken into custody. Police officers are not required to administer Miranda warnings to everyone they question, but are required to give Miranda warnings where there has been such a restriction on a person’s freedom as to render him in custody. (Oregon v. Mathiason (1977) 429 U.S. 492, 495; People v. Macklem (2007) 149 Cal.App.4th 674, 689-690.) “‘[T]he ultimate inquiry is simply whether there is “a formal arrest or restraint on freedom of movement” of the degree associated with a formal arrest.’ [Citations.]” (People v. Morris (1991) 53 Cal.3d 152, 197.) The determinative question is “whether a reasonable person in defendant’s position would have felt he or she was in custody.” (People v. Stansbury (1995) 9 Cal.4th 824, 830.) Thus, “[c]ustody determinations are resolved by an objective standard: Would a reasonable person interpret the restraints used by the police as tantamount to a formal arrest?” (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403.)
Often this standard is misstated as whether a reasonable person under similar circumstances would believe that he or she was free to leave. This, however, is a Fourth Amendment standard used to determine whether a person has been seized without a warrant and without appropriate constitutional cause. “Whether an individual has been unreasonably seized for Fourth Amendment purposes and whether that individual is in custody for Miranda purposes are two different issues.” (People v. Pilster, supra, 138 Cal.App.4th at p. 1405; accord, U.S. v. Kim (9th Cir. 2002) 292 F.3d 969, 976.) In determining whether an individual is in custody for purposes of Miranda, the issue “‘is not whether a reasonable person would believe he was not free to leave, but rather whether such a person would believe he was in police custody of the degree associated with formal arrest.’ [Citation.]” (People v. Pilster, supra, at p. 1403, fn. 1; see also U.S. v. Pelayo-Ruelas (8th Cir. 2003) 345 F.3d 589, 592 [court rejected defendant’s Miranda challenge on basis that he was not free to leave, noting that, although one is not free to leave a Terry stop until completion of reasonably brief investigation, most Terry stops do not trigger Miranda rights]; U.S. v. Swanson (6th Cir. 2003) 341 F.3d 524, 529 [defendant not subject to custodial interrogation, even though not free to leave during questioning, because restraint exercised never reached level associated with formal arrest].)
Terry v. Ohio (1968) 392 U.S. 1.
All lawful detentions, by definition, restrict a defendant’s movement. The question under Miranda is whether the restriction on a person’s freedom is equivalent to that of formal arrest. (Oregon v. Mathiason, supra, 429 U.S. at p. 495; People v. Aguilera (1996) 51 Cal.App.4th 1151, 1162.) When there has been no formal arrest, the custody issue turns on “how a reasonable person in the suspect’s situation would perceive his circumstances.” (Yarborough v. Alvarado (2004) 541 U.S. 652, 662.)
Where there is no dispute as to the facts, we review the trial court’s determination as a question of law-de novo. (People v. Stansbury (1993) 4 Cal.4th 1017, 1050; People v. Pilster, supra, 138 Cal.App.4th at p. 1403.) We consider the totality of the circumstances. (Pilster, supra, at pp. 1403-1404.) Although no one factor is controlling, we consider the following: “(1) whether the suspect has been formally arrested; (2) absent formal arrest, the length of the detention; (3) the location; (4) the ratio of officers to suspects; and (5) the demeanor of the officer, including the nature of the questioning.” (People v. Forster (1994) 29 Cal.App.4th 1746, 1753.)
Other factors include whether the suspect agreed to the interview; whether the suspect was told he or she could terminate the questioning or that he or she was considered a suspect; whether the suspect’s movement was restricted during the interview; what the police officer’s demeanor was during questioning; and/or whether the suspect was arrested at the conclusion of the interview. (People v. Pilster, supra, 138 Cal.App.4th at pp. 1403-1404.) Our state Supreme Court has characterized the most important factors as “‘(1) the site of the interrogation, (2) whether the investigation has focused on the subject, (3) whether the objective indicia of arrest are present, and (4) the length and form of questioning.’” (People v. Stansbury, supra, 4 Cal.4th at p. 1050, citing People v. Boyer (1989) 48 Cal.3d 247, 272.) However, no one factor is dispositive. (People v. Morris (1991) 53 Cal.3d 152, 197.)
Once the circumstances reach the level of formal arrest, Miranda warnings are required because the suspect understands the detention is not likely to be temporary or brief, and the suspect understands that he is completely at the mercy of the police, a state likely to result in compulsion because the suspect understands that questioning will continue until he provides his interrogators with the answers they seek. (Berkemer v. McCarty (1984) 468 U.S. 420, 437-438.) The purpose of Miranda is to reduce the risk of coerced confessions and to safeguard the Fifth Amendment right against self-incrimination. (Chavez v. Martinez (2003) 538 U.S. 760, 790.)
Although this is a close case, we believe, given the totality of the circumstances, a reasonable person would not consider the detention as custodial, i.e., the equivalent of a formal arrest. In this case Smith was not sought out by police, but voluntarily contacted police as a result of his dispute with Araiza. He was not the subject of an investigation at the time contact was initiated. The patrol car was located on a public street. Smith was not transported to jail or anywhere else. He remained where he first contacted police. As Ramirez talked to Araiza and other witnesses, he came to believe that Smith and Rogers had done what Araiza claimed, stolen his wallet and threatened him when he tried to retrieve it. But the officer did not reach this conclusion until he had spoken with Araiza and Rogers and was able to unwind the conflicting stories.
It is true that Smith was detained. However, a temporary detention was justified given the insistence by all parties that a serious crime had been committed. Not every detention is custodial. (People v. Pilster, supra, 138 Cal.App.4th at pp. 1404-1405.) Smith did not object to being placed in the back of Ramirez’s air-conditioned police car while he waited for Rogers to be interviewed. He never asked to leave. Although the doors of the patrol car could not be opened from inside, this occurred as a result of the patrol car’s design, not by a conscious decision to lock Smith in.
Smith waited in the car only 20 to 25 minutes before being recontacted by Ramirez; a relatively brief detention, especially since Smith had been told Ramirez would talk to Rogers first. Smith was expressly told that he was not under arrest when he was put in the car. And he was not handcuffed. (See Dunaway v. New York (1979) 442 U.S. 200, 215 [handcuffs considered “trappings of a technical formal arrest”]; U.S.v. Newton (2d Cir. 2004) 369 F.3d 659, 676 [handcuffing is hallmark of formal arrest].) Ramirez explained that he was going to talk to Rogers and Smith separately as part of his investigation and that Ramirez would talk to Rogers first while Smith waited in the cooled patrol car.
Ramirez testified that, by the time he opened the patrol car door to question him, Smith was a suspect and would not have been allowed to leave, because Ramirez believed Smith was guilty of a crime. However, an officer’s belief that a suspect is guilty or under arrest bears upon the custody issue only if conveyed to the individual being questioned. (Michigan v. Chesternut (1988) 486 U.S. 567, 575, fn. 7; People v. Macklem, supra, 149 Cal.App.4th at pp. 689-690 [subjective views of officer not relevant to inquiry].) Even a clear statement from the officer that the person being questioned is a suspect is not, in itself, dispositive on the issue of custody. (Stansbury v. California (1994) 511 U.S. 318, 325.)
There was nothing unduly coercive about the questioning. The questioning was not recorded and it was conducted by only one officer, although Ramirez’s partner was on the scene talking to the other witnesses. There is no evidence the officer used coercive interrogation techniques. There is no evidence Ramirez posed confrontational questions or pressured Smith in any manner. Although the opening brief claims that the questioning was “firm” and “aggressive” and that interrogation techniques were used, a careful reading of the record shows this was not established as to Smith. Ramirez testified that his questioning of Rogers was firm, but did not say the same as to Smith. During argument, counsel added that the questioning was “confrontational and accusatory,” and the court appeared to agree, but there is no evidence to support this in the record-only speculation. Also, Ramirez was asked whether being untruthful is an interrogation technique, and he answered yes, but he was never asked if he used interrogation techniques on Smith. And Ramirez never testified that he used interrogation techniques to pressure Smith to admit guilt.
The United States Supreme Court has recognized 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.” (Oregon v. Mathiason, supra, 429 U.S. at p. 495.) But, because this was a driver-initiated stop, there was no danger that Smith was made to incriminate himself through subterfuge. Miranda was designed to guard against investigative techniques used by police, including various kinds of trickery, to elicit confessions from suspects. There was little time for the officers in this case to develop or implement a plan of this sort. (See Berkemer v. McCarty, supra, 468 U.S. at p. 438.) And, although Smith was arrested at the end of the interview, this factor alone is not enough to make the questioning of Smith custodial or coercive in the absence of other factors.
Given the nature of the circumstances and the nature of the detention here, we believe Smith made his statement to Ramirez before being taken into custody. Miranda warnings were not required and the statement was properly admitted.
DISPOSITION
The judgment is affirmed.