People v. Mumford

275 P.3d 667

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Andrew Wayne MUMFORD, Defendant–Appellant.

No. 08CA0974.

Colorado Court of Appeals, Div. IV.

March 18, 2010.

John W. Suthers, Attorney General, Melissa D. Allen, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Douglas K. Wilson, Colorado State Public Defender, Ryann S. Hardman, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.

Opinion by Judge CONNELLY.

Defendant, Andrew Wayne Mumford, was convicted after a jury trial of felony possession of cocaine and was sentenced to probation. His appeal challenges the conviction. We affirm.

I. Background

The cocaine at issue was found in defendant's home by police executing warrants to arrest defendant's friend and to search the home. The police had told defendant and other occupants of the home to sit outside on the curb during the search.

While defendant was outside the home, a detective asked defendant if he lived there and whether there was anything officers needed to know. Defendant responded that he had a small amount of cocaine inside his bedroom for personal use.

Defendant moved to suppress his statement, contending it was the product of custodial interrogation conducted without the prior warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). After an evidentiary hearing, the trial court denied suppression: it concluded defendant had been subjected to interrogation but that Miranda warnings were not required because defendant was not then in custody. The People introduced this statement at the trial in which defendant was convicted.

II. Discussion

A. Challenges to the Statement

Defendant contends that his statement regarding the cocaine should have been suppressed because it was elicited without Miranda warnings and was involuntary. In reviewing these challenges, we defer to the trial court's findings of historical fact but consider de novo its application of the governing legal standards. People v. Hankins, 201 P.3d 1215, 1218 (Colo.2009); People v. Adkins, 113 P.3d 788, 791 (Colo.2005).

1. Miranda Challenge

The test of custody is an “objective” one asking “whether a reasonable person in the suspect's position would believe himself to be deprived of his freedom of action to the degree associated with a formal arrest.” Hankins, 201 P.3d at 1218 (emphasis added) (internal quotations omitted). The relevant “question 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 a formal arrest.” People v. Polander, 41 P.3d 698, 705 (Colo.2001) (emphasis in original) (citing Berkemer v. McCarty, 468 U.S. 420, 439–40, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984)).

Not every Fourth Amendment “seizure” constitutes “custody” under Miranda. A traffic stop, for example, ordinarily does not constitute custody even though it is “unquestionably a seizure within the meaning of the Fourth Amendment.” Pennsylvania v. Bruder, 488 U.S. 9, 10–11, 109 S.Ct. 205, 102 L.Ed.2d 172 (1988) (citing Berkemer, 468 U.S. at 440, 104 S.Ct. 3138). The “critical” point “is that custody arises only if the restraint on freedom is [of] a certain degree—the degree associated with formal arrest.” United States v. Bengivenga, 845 F.2d 593, 598 (5th Cir.1988) (en banc).

The Supreme Court just reemphasized this point in Maryland v. Shatzer, 559 U.S. ––––, 130 S.Ct. 1213, 175 L.Ed.2d 1045 (2010). The Court wrote that “the freedom-of-movement test identifies only a necessary and not a sufficient condition for Miranda custody.” Op. at 672. It explained that lack of such freedom has not been accorded “ ‘talismanic power,’ because Miranda is to be enforced only in those types of situations in which the concerns that powered the decision are implicated.' ” Id. (citing Berkemer, 468 U.S. at 437, 104 S.Ct. 3138). Thus, “the temporary and relatively nonthreatening detention involved in a traffic stop or Terry stop, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), does not constitute Miranda custody.” Shatzer, at ––––.

Here, at the time the detective asked his questions, there is no doubt defendant was being detained temporarily. But there is also no doubt this temporary detention was permissible under the Fourth Amendment: the Supreme Court has permitted such detentions by analogizing to Terry stops allowable without the probable cause required for an arrest. Michigan v. Summers, 452 U.S. 692, 698–705, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981) (citing Terry and its progeny).

Summers did not involve a Miranda challenge, so the Supreme Court had no need to consider whether warnings are required to question persons temporarily detained during execution of a warrant. The Court did note, however, that “[i]n sharp contrast to [a] custodial interrogation” at a police station, detaining a home occupant during execution of a warrant is “ ‘substantially less intrusive’ than an arrest.” Id. at 702, 101 S.Ct. 2587 (quoting and distinguishing Dunaway v. New York, 442 U.S. 200, 210, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979)).

Federal courts have held that a temporary detention during execution of a warrant, like a traffic or Terry stop, ordinarily does not constitute Miranda custody. The Seventh Circuit explained that “because detentions pursuant to the execution of a search warrant are ‘substantially less intrusive than an arrest, ... a suspect who is detained during the execution of a search warrant has not suffered a restraint on freedom of movement of the degree associated with a formal arrest, and therefore is not ‘in custody’ ” for Miranda purposes. United States v. Saadeh, 61 F.3d 510, 519–20 (7th Cir.1995) (quoting Summers, 452 U.S. at 702, 101 S.Ct. 2587, and citing United States v. Burns, 37 F.3d 276, 281 (7th Cir.1994)). Similarly, the Ninth Circuit has held that “[w]here an individual has been detained incident to a search warrant, and officers' questioning stays within the bounds of questioning permitted during a Terry stop, Miranda [warnings] are not required.” United States v. Davis, 530 F.3d 1069, 1081 (9th Cir.2008) (citing prior case relying on Berkemer ).

Of course, that the mere fact of temporary detention is legally insufficient by itself to create custody “is not to say ... that Miranda rights can never be implicated during a valid investigatory stop.” People v. Breidenbach, 875 P.2d 879, 886 (Colo.1994). The issue of custody turns on the “totality of the circumstances.” Hankins, 201 P.3d at 1218. While our supreme court listed several relevant factors in People v. Matheny, 46 P.3d 453, 465–66 (Colo.2002), “[n]o single factor is determinative.” Hankins, 201 P.3d at 1219.

There was nothing to elevate the encounter in this case from a temporary detention not requiring Miranda warnings to a custodial situation akin to formal arrest. The encounter occurred outside defendant's home, and defendant knew the officers' immediate focus was on another person for whom they had an arrest warrant. The questioning of defendant was brief—the detective asked simply whether defendant lived at the home and whether there was anything officers should know—and the tone was conversational.

Defendant was under no formal restraint at the time of the officer's very brief and nonthreatening questions outside his home. Critically, though defendant testified to the contrary at the suppression hearing, the trial court specifically found that defendant was not handcuffed when he made the incriminating statement. Cf. United States v. Newton, 369 F.3d 659, 673–77 (2d Cir.2004) (concluding that handcuffing suspect was the critical factor elevating temporary detention during execution of warrant to Miranda custody of the type normally associated with formal arrest).

Defendant relies on the fact that some officers had their guns drawn when they first entered the home. But the guns were put away once the home was cleared, and the detective made no display of force when later questioning defendant outside. Thus, our case is easily distinguished from those holding that defendants “questioned by an officer at gunpoint” were in custody for Miranda purposes. Breidenbach, 875 P.2d at 886–87 (emphasizing that officer continued to interrogate defendant “[w]ithout reholstering his weapon,” even though immediate danger had passed). Rather, it is more analogous to United States v. Bennett, 329 F.3d 769, 773–75 (10th Cir.2003). Bennett held that Miranda warnings were not required for a defendant detained during execution of a warrant, even though firearms had been displayed and the defendant had been handcuffed prior to questioning; the Tenth Circuit distinguished a prior case in which police had used “firearms to restrain [a suspect] during questioning.” Id. at 775 (emphasis in original).

Defendant relies on the supreme court's decisions in Polander, 41 P.3d at 705, and People v. Moore, 900 P.2d 66 (Colo.1995). We conclude those cases are distinguishable from this one.

The critical fact in Polander was that at the time the defendant was questioned, “it was apparent to all that the police had grounds to arrest” her and the other occupants of a vehicle in which drugs had been found. 41 P.3d at 705. The supreme court concluded that “the defendant's freedom of action was curtailed to a degree associated with formal arrest” because “[w]hether or not the police had announced that her seizure was elevated ... from an investigatory stop to an arrest, it is clear that [she] had every reason to believe she would not be briefly detained and then released as in the case of an investigatory stop or a stop for a minor offense.” Id. Here, in contrast, at the time of the detective's brief questioning, there was nothing to indicate that defendant ultimately was going to be arrested rather than simply detained temporarily during a search focused primarily on someone else. Indee...