Opinion
No. CR 99-0492 JCS
March 22, 2000
ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS
Defendant Sitara Cave seeks to suppress statements that she made prior to her arrest. She argues that she was in custody when she made the statements, and therefore should have been given a Miranda warning. For the reasons stated below, Defendant's motion is hereby DENIED.
Although Defendant never formally sought an evidentiary hearing on this motion, Defendant, in her supporting papers, raised the need for such a proceeding. For purposes of this motion, the Court assumes the truth of all of the evidence introduced by the defense, as well as the proffers of defense counsel. As described below, even assuming the truth of these statements and allegations, there is no merit to the motion to suppress. Accordingly, an evidentiary hearing is not necessary.
The facts described in this Background section are taken from the declarations and other evidence submitted by Defendant, as well as defense counsel's proffers, all of which are assumed to be true for purposes of this motion. In addition, Plaintiff submitted the declaration of Officer Folley. Defendant did not contest the truth of any of the statements contained in Officer Folley's declaration.
Defendant Cave was stopped at 12:22 a.m. by a United States Park Police Officer, Officer Folley. Officer Folley, who was driving in the opposite direction, observed that Defendant had a broken headlight. Decl. of Officer Folley (hereinafter "Folley Decl.") at ¶ 3. When he turned around to stop Defendant, he saw that she also had a broken taillight. Id. at ¶ 4. Officer Folley used his lights to stop Defendant, who pulled over into a small parking lot on the side of the road, at the corner of Halleck and Gorgas. Id. at ¶ 4-5. At that time of night there were no businesses open in the area of the stop and there was no traffic. Decl. of Sitara Cave (hereinafter "Cave Decl.") at ¶ 9. There was a passenger in the car, Nicole Minor.
Appendix A to Motion. The headlights from Officer Folley's car were shining into Defendant's car. Cave Decl. at ¶ 11. Cave states that the Officer was a large man. Id. at ¶ 4. Officer Folley states that he is six feet tall and that Cave's driver's license indicates that she is 6'1". Folley Decl. at ¶ 13. The officer asked for Defendant's driver's license and she gave it to him. Opposition at 2. While Defendant was still inside of her car, Officer Folley informed her of the broken headlight and taillight. Folley Decl. at ¶ 7. At that point, the officer smelled the odor of alcohol coming from inside the car and asked Defendant whether she had been drinking. Folley Decl. at 2. Officer Folley had not administered a Miranda warning prior to asking this question and had not returned Defendant's driver's license to her. Cave Decl. at ¶¶ 14,15.
Defendant states that at the time Officer Folley asked her whether she had been drinking, she felt that she was not free to leave. Cave Decl. at ¶ 13. Defendant answered Officer Folley's question, stating that she had had three margaritas earlier in the evening. Appendix A to Motion (Statement by Officer Folley at page 3, lines 29-30). Defendant seeks to suppress this statement.
Officer Folley next asked Defendant to perform field sobriety tests and requested assistance from another officer. Folley Decl. at ¶¶ 10, 11. According to Folley, it is U.S. Park Police procedure to have at least two officers present for field sobriety tests because the officer conducting the tests may have his or her back to the suspect while demonstrating the tests. Folley Decl. at ¶ 10. While Officer Folley was waiting for the second officer to arrive, Defendant and her passenger remained in Defendant's car while Officer Folley returned to his patrol car to check for outstanding warrants. Folley Decl. at ¶ 11. When the second officer arrived, Folley began to conduct the tests, asking Defendant to count out loud while standing on one leg. Folley Decl. at ¶ 12; Cave Decl. at ¶ 17. Defendant attempted to do so. Defendant seeks to suppress this "statement."
When Defendant failed to pass the sobriety tests, Officer Folley placed Defendant under arrest. Appendix A to Motion (Statement of Officer Folley at p. 4, lines 2-3). Subsequently, Officer Folley took Defendant to a Park Police building, where a breath test was taken. Opposition at 3. Defendant was read her Miranda rights and asked whether she agreed to be interviewed. Id. Defendant agreed and was interviewed without an attorney present. Id.
II. ANALYSIS
Defendant seeks to suppress two statements on the grounds that they were made after Defendant was already in custody and before she had been issued a Miranda warning. First, she asserts that her answer to Officer Folley's question concerning whether she had been drinking should be suppressed.
Second, Defendant asks that the Court suppress testimony about her performance when asked by Officer Folley to count while standing on one leg as part of the field sobriety tests. Under Miranda v. Arizona, statements that are the product of interrogation which were not preceded by appropriate warnings are inadmissible where the accused was questioned while "in custody or otherwise deprived of his freedom of action in a significant way." 384 U.S. 436, 444 (1966). A suspect is "in custody" where it is determined, based on the totality of the circumstances, that "`a reasonable person in such circumstances would conclude after brief questioning [that] he or she would not be free to leave.'" United States v. Hudgens, 798 F.2d 1234, 1236 (9th Cir. 1986) (quoting United States v. Booth, 669 F.2d 1231, 1235 (9th Cir. 1981)). The Ninth Circuit has held that the following factors should be considered in determining whether an accused is in custody: (1) the language used to summon the individual; (2) the extent to which the defendant is confronted with evidence of guilt; (3) the physical surroundings of the interrogation; (4) the duration of the detention; and (5) the degree of pressure applied to detain the individual. Id.
The Government does not contest Defendant's assertion that both statements are testimonial in nature and therefore would require Miranda warnings if they were made during custodial interrogation. Rather, it argues that Defendant was not in custody at the time the statements were made.
The Supreme Court considered the application of Miranda to traffic stops in Berkemer v. McCarty, 468 U.S. 420 (1984). In Berkemer, the Court held that roadside questioning of a motorist detained in a routine traffic stop did not constitute custodial interrogation such that a Miranda warning was required. Id. at 441. The Court began its analysis by acknowledging that a traffic stop involves an element of coercion:
It must be acknowledged at the outset that a traffic stop significantly curtails the `freedom of action' of the driver and the passengers, if any, of the detained vehicle. Under the law of most states, it is a crime to ignore a policeman's signal to stop one's car or, having stopped, to drive away without permission. . . . However, we decline to accord talismanic power to the phrase in the Miranda opinion [that its holding applies whenever "a person has been taken into custody or otherwise deprived of his freedom of action in any significant way."] Fidelity to the doctrine announced in Miranda requires that it be enforced strictly, but only in those types of situations in which the concerns that powered the decision are implicated.
Id. at 437-438. The Court reasoned that "two features of an ordinary traffic stop mitigate the danger that a person questioned will be induced `to speak where he would not otherwise do so freely.'" Id. at 437 (quoting Miranda, 384 U.S. at 467). First, a routine traffic stop is "presumptively temporary and brief." Id. Second, "circumstances associated with the typical traffic stop are not such that the motorist feels completely at the mercy of the police." Id. at 438. Namely, because passers by — either on foot or in other cars — may witness the stop, it is public to some degree. Id. Because this exposure to public view both reduces the ability of a policeman to use tactics that will elicit self-incriminating statements and reduces the fear of the motorist, the Court found, the atmosphere surrounding a typical traffic is considerably less "police-dominated" than those at issue in Miranda.
On the other hand, the Court in Berkemer was not willing to announce a bright-line rule that interrogation during a traffic stop may never be custodial. Rather, the Court noted that "[i]f a motorist who has been detained during a traffic stop thereafter is subjected to treatment that renders him in custody for practical purposes, he will be entitled to the full panoply of protections prescribed by Miranda." Id. at 440 (citations and quotations omitted). Under the facts at issue in Berkemer, the Court held that such protections were not required, stating that "[f]rom aught that appears in the stipulation of facts, a single police officer asked respondent a modest number of questions and requested him to perform a simple balancing test at a location visible to passing motorists. Treatment of this sort cannot fairly be characterized as the functional equivalent of formal arrest." In a footnote, however, the Court cited to a case in which a suspect had been interrogated in a police car and denied permission to call his mother, using the "cf." signal, indicating that under such facts a suspect might be in custody. Id. at 442 n. 36 (citing to United States v. Schultz, 442 F. Supp. 176, 180 (D.Md. 1977)). In another footnote, the Court used the "cf." signal in citing to Commonwealth v. Meyer, 412 A.2d 517 (Pa. 1980), in which the Pennsylvania Supreme Court held that a suspect who had been involved in a car accident was in custody for purposes of Miranda where he was detained for over a half hour, part of which time he was in the patrol car.
The Supreme Court's decision in Pennsylvania v. Bruder, 488 U.S. 9, 11 (1988), involved very similar facts, leading the Court to conclude that there, as in Berkemer, the suspect was not in custody prior to his arrest.
Defendant asserts here that this was one of the atypical traffic stops in which Miranda warnings were required. In addressing the five factors set forth by the Ninth Circuit for determining whether interrogation during a traffic stop is custodial, see United States v. Hudgens, 798 F.2d at 1236, Defendant conceded in oral argument that three of the factors — language, degree of pressure and duration of stop — do not establish a coercive atmosphere. Defense counsel was correct to admit these factors do not suggest that Defendant was in custody at the time the statements in question were made.
The language used by the officer was not coercive. As in Berkemer, all the officer did was ask Defendant one question about alcohol use and asked her to perform field sobriety tests. Similarly, there is nothing in the record to suggest that the duration of the stop was anything other than that of a normal traffic stop: as counsel admitted in oral argument, the duration of the stop from the time of initial contact to the time the statements were made was not long. Finally, there is no indication that any unusual pressure was put on Defendant during the stop. During argument, the only thing that counsel could point to was the fact that the officer was male, and that the officer left his headlights on during this nighttime stop. There is no evidence in the record to indicate that those factors are anything other than typical for nighttime traffic stops.
Defendant did make an effort to argue that she was confronted by the officer with evidence of guilt: Defendant asserted at oral argument that the officer's question about whether she had been drinking contributed to the coercive atmosphere of the stop. This factor certainly cannot weigh heavily in favor of a finding that Defendant was in custody. All the officer did was ask whether or not she had been drinking.
This is not a case in which the officer accused Defendant of lying, confronted her with independent evidence of guilt, or even accused Defendant of being under the influence. Cf. United States v. Beraun-Panez, 812 F.2d 578 (9th Cir. 1987) (officers accused defendant of lying, told defendant that several witnesses had placed him at the scene of the alleged incident, and used "good cop/bad cop" routine when questioning defendant).
Defendant also asserts that the physical surroundings of the interrogation demonstrate that she was already "in custody" for the purposes of Miranda when the statements at issue were made. First, the stop occurred in the middle of the night in an area of the Presidio in which there was little or no traffic and where no businesses were open. Second, the officer who made the stop was large and when he asked her the questions that elicited the incriminating statements he still had her driver's license. Third, with respect to the field sobriety test, Defendant points out that there were two officers at the scene at that point. According to Defendant's counsel, Defendant also did not feel free to leave at night when there had been recent attacks on women in San Francisco parks. She also, according to defense counsel, was more subject to intimidation by police officers.
The physical surroundings simply did not place Defendant in police custody. There is no indication that Officer Folley attempted to isolate the Defendant from her passenger or anyone else. Although it may be true, as Defendant asserted in oral argument, that a passenger who also does not feel free to leave the scene offers less protection from police coercion than do passers by, the Court finds it significant that the officer did not try to deprive Defendant of whatever moral support her passenger may have offered her, or to conduct any questioning outside of the scrutiny of the passenger by, for instance, questioning her in the officer's squad car about whether she had been drinking. Defendant also does not allege that she was denied permission to contact her passenger or anyone else. Nor does the Defendant assert that either officer employed any physical or psychological coercion, such as a "good cop/bad cop" routine. There is no authority to support the position that the interrogation was custodial simply because the officer retained Defendant Cave's driver's license, because the officer is a large man, or because there were two officers present during the second "statement."
With respect to Defendant's assertion that the circumstances of the stop should be viewed through the prism of a "refined objective standard" that takes her gender into account, the Court does not reach this issue. Even if it is true, as Defendant asserts, that a young woman who has never been stopped by the police, much less arrested, is likely to find contact with the police more intimidating than would a man in a similar situation, the facts here simply do not establish the type of coercive atmosphere that Miranda was intended to protect against, whether a reasonable man or a reasonable woman standard is applied.
Moreover, the fact that a woman would be likely to feel more fearful of walking away from the traffic stop than would a man because it was made in a dark park, where sexual assault would be a concern, is not dispositive: Defendant would not have been free to leave the scene during the stop in any case. As the Court explained in Berkemer, the mere fact that a person is required to remain at the scene of a traffic stop until told by the police that he or she can leave, does not give rise to custody. Berkemer, 468 U.S. at 437.
Defendant relies heavily upon the Ninth Circuit's opinion in United States v. Beraun-Panez, 812 F.2d 578 (9th Cir. 1987). That case is distinguishable from the facts at issue here. In Beraun-Panez, the defendant was herding cattle in a remote area in rural Idaho when he was approached by the sheriff and an investigator, who were investigating a range fire. 812 F.2d at 579. The two officers had stopped their truck on a dirt road about two hundred yards from the defendant and called him over to the truck, where they asked him if he would answer some questions. Id. An interrogation followed, lasting between half and hour and an hour and a half. Id. During the interrogation, the defendant was positioned between the two officers beside the hood of the truck. Id. at 581. The officers asked repeatedly why he was lying and told defendant that several witnesses had already placed him on the scene at the time of the fire (even though this was a misleading characterization of the witness's statements). Id. at 579. The officers, who had investigated the defendant's alien status prior to the interrogation, also told the defendant that if he continued to lie he would be deported and separated from his family. Id. at 580-581. The defendant also testified that the officers used a "good-cop bad-cop" routine. Id at 579. At one point, defendant's coworker approached and was intercepted by one of the officers, who sent him away. Id. at 580-581.
The court held that:
Although not physically bound, Beraun-Panez was subjected to psychological restraints just as binding. Accusing Beraun-Panez repeatedly of lying, confronting him with false or misleading witness statements, employing good guy/bad guy tactics, taking advantage of Beraun-Panez's insecurities about his alien status, keeping him separated from his coworker in a remote rural location, insisting on the `truth' until he told them what they sought, the officers established a setting from which a reasonable person would believe that he or she was not free to leave.
The court also rejected the government's argument that the applicable objective standard precluded the court from taking into consideration the fact that the defendant was an alien. United States v. Beraun-Panez, 812 F.2d at 581. The court pointed out that the officers not only knew of the defendant's status but may even have sought to use his status to their advantage. Id. at 581. As a result, the court held, it was appropriate that the district court applied a "refined objective standard" by considering how a reasonable person who was an alien would have perceived the officers' remarks. Id.
The instant case bears virtually no similarity to the facts in Beraun-Panez. Defendant in this case was not repeatedly accused of lying. The officers in this case did not confront Defendant with an accusation of guilt, or misleading accusations of guilt. The officers here did not employ good cop/bad cop tactics. There is no evidence that the officer in this case took advantage of any of Defendant's insecurities based on any immutable characteristics. There is no evidence that the officers in this case kept Defendant separated from her passenger or repeatedly insisted on the "truth" until they were told what they sought. In the instant case, the arresting officer asked Defendant one question and made one request regarding a field sobriety test. There was no coercion involved.
Defendant's position is also unsupported by the case law addressing the applicability of Miranda to traffic stops. In particular, the cases indicate that in order for Miranda to apply to a pre-arrest interrogation during a traffic stop, a defendant must present facts that show a more coercive atmosphere than Defendant has demonstrated existed in this case. For instance, some courts have found that a suspect questioned in a routine traffic stop is in custody for the purposes of Miranda where the suspect is questioned in the squad car and is denied permission to talk to an attorney or family member. See, e.g., United States v. Schultz, 442 F. Supp. 176, 178 (D.Md. 1977) (holding that suspect who was questioned inside police car and denied permission to call his mother was in custody and should have received Miranda warning), State v. Fasching, 453 N.W.2d 761 (ND 1990) (holding that interrogation of defendant who was stopped based on suspicion that she was driving while intoxicated was custodial where she was interrogated in squad car and where police refused to allow passenger, who said she was defendant's attorney, to talk to defendant). Courts have also found interrogation during traffic stops to be custodial where the suspect is physically restrained. For instance, in United States v. Henley, 984 F.2d 1040 (9th Cir. 1993), the court held that questions posed to the suspect prior to his arrest constituted custodial interrogation where the suspect had been handcuffed and placed in the squad car before he was questioned. Similarly, in United States v. Green, 776 F. Supp. 565, 566 (Dist. D.C. 1991), the court held that a suspect was in custody prior to his arrest where the police questioned him while they held him on the sidewalk, asking him repeatedly who owned the drugs that had just been found in the glove compartment of the car he had been driving. When the suspect did not immediately admit to owning them, the officers told him they would presume that the drugs belonged to the suspect's mother, who owned the car. Id. As is apparent from the above background description, none of these circumstances was present in the instant case: Defendant was not questioned inside the police car, and was not denied permission to talk to her passenger or anyone else. Defendant was not physically restrained.
Although this case was decided before Berkemer, it was cited in Berkemer as an example of a custodial interrogation during a traffic stop.
Conversely, many courts have held that suspects were not in custody when questioned during traffic stops under circumstances that were more coercive than they were here. For instance, in United States v. Murray, the Seventh Circuit held that a suspect was not in custody when he was questioned in the back seat of the squad car, where he had been placed after he became "verbally combative." 89 F.3d 459, 461 (7th Cir. 1996). There, the police found a gun under the seat of the car that the suspect had been driving and one of the officers took it to the squad car, opened the door and showed it to the suspect, asking him if it was his gun. Id. In United States v. Boucher, the Eighth Circuit held that where a suspect was stopped for speeding and then questioned in the patrol car about whether he had anything illegal in his pickup truck, the suspect was not in custody. 909 F.2d 1170, 1174 (8th Cir. 1990). There, the officer who stopped the suspect noticed a gun in the pick-up but did not tell the suspect he had seen it before he questioned him in the squad car. Id. The court rejected the defendant's argument that the officer had attempted to trick him by questioning him in the car without telling him he had seen the gun rather than arresting him immediately and reading his Miranda rights. Id.
III. CONCLUSION
The Court finds that Defendant was not in custody for the purposes of Miranda at the time the two statements at issue in this motion were made. Defendant's motion is DENIED.
IT IS SO ORDERED.