Opinion
No. 90SA84
Decided September 10, 1990.
Interlocutory Appeal from the District Court Logan County Honorable James R. Leh, Judge
Jon M. Baily, District Attorney, Thirteenth Judicial District, for Plaintiff-Appellant.
Bruno, Bruno Colin, P.C., Louis B. Bruno, Earl S. Wylder, for Defendant-Appellee.
In this interlocutory appeal, pursuant to C.A.R. 4.1, the prosecution seeks to overturn an order of the district court suppressing certain statements made by the defendant, Daniel J. Probasco. The statements were made by the defendant, a deputy sheriff, to fellow police officers while he was seated in his police vehicle. The district court held that the statements were the product of interrogative questioning in a custodial setting, without the benefit of Miranda warnings, and therefore violated the defendant's constitutional rights. We reverse the suppression order and remand to the trial court for further proceedings consistent with this opinion.
Miranda v. Arizona, 384 U.S. 436 (1966).
I.
On July 15, 1989, at 1:16 a.m., the defendant, Morgan County Deputy Sheriff Daniel Probasco, radioed that he was making a traffic stop. A short time later, he requested assistance, and officers from both Fort Morgan and Morgan County responded.
Upon arriving at the scene, the officers found Probasco's car, with its emergency lights on and engine running, but could not locate Officer Probasco. Within a few minutes, the police dispatcher relayed a 911 call that shots were fired within a short distance from Probasco's patrol car. The officers went to that location and found Probasco kneeling over the body of Daniel E. Smith. Smith's head was bleeding profusely, and he had been shot. Police Sergeant Bruce Ringo, who was the first to take charge of the investigation, asked Probasco to step back and began efforts to resuscitate Smith. According to Officer Ringo, the defendant was shaken up and was "overwhelmed with what was going on." Ringo asked another officer to accompany the defendant back to the defendant's patrol car and to wait with him there. Probasco and two other officers went to Probasco's patrol car. A third officer, Leon Smith, joined the defendant and the two other officers a short time later.
At the suppression hearing, Officer Smith testified that he noticed Probasco's radio and baton on the porch of a nearby house. Smith asked Probasco "how his stick and his radio wound up on the porch?" Smith said that he asked the question just "to start up a conversation" and that he had joined Probasco and the other officers to "make sure that Officer Goebel and Dan Probasco were ok." It was then that the defendant replied "[l]et me tell you what happened." Probasco stated that he had stopped the driver, and that while talking to him, the driver shoved him and ran away. Probasco chased the driver for a block or so, found him under some bushes hiding, drew out his pistol and ordered the man to remain where he was. Probasco stated that Smith began to get up, "struck the end of his weapon and the weapon went off on him." Smith later died as a result of being shot in the head.
The defendant was not placed under arrest, and was not given the Miranda warning before or after he made the statement. Probasco was subsequently charged with criminally negligent homicide.
§ 18-3-105, 8B C.R.S. (1986).
The defendant, relying on Miranda v. Arizona, 384 U.S. 436 (1966), moved to suppress the statements. Following a hearing, the district court granted the defendant's motion and ordered that the statements be suppressed.
II.
Miranda v. Arizona requires a four-fold warning prior to custodial interrogation to ensure that the accused is advised of his right to counsel and of his right not to incriminate himself. Miranda, 384 U.S. at 478-79. Before Miranda is applicable, however, there must be both interrogation by the police, and "custody." Id. The issue in People v. Trujillo, 784 P.2d 788 (Colo. 1990), was when does police questioning become custodial interrogation. Under the facts in Trujillo, questioning by a police officer in a police interview room amounted to custodial interrogation and required Miranda warnings. Whether Probasco's answers to the question asked by a fellow officer were the product of custodial interrogation is the issue in this case.
III.
The prosecution claims both that the question asked Probasco did not amount to interrogation, and that Probasco was not in custody at the time he made his statement. In Trujillo, we stated that interrogation referred "not only to express questioning by a police officer, but also to any words or actions on the part of the officer that the officer `should know are reasonably likely to elicit an incriminating response from the suspect.'" Trujillo, 784 P.2d at 790 (quoting Rhode Island v. Innis, 446 U.S. 291, 301 (1980)). The district court found that Officer Smith's question regarding "how his [the defendant's] stick and radio wound up on the porch" constituted interrogation under the Innis and Trujillo standard. Though such a question, from one officer to another, is not of the adversarial nature normally associated with police interrogation, Officer Smith reasonably should have expected the defendant to answer with some kind of an explanation — which is precisely what happened. Any explanation of the events leading up to the shooting could be potentially incriminating, and would therefore be the very kind of statement that Miranda was intended to protect. Here, the district court correctly found that the question amounted to interrogation. The more difficult issue is whether the questioning occurred while Probasco was in custody.
IV.
Custody includes, but is not limited to, the situation in which the defendant is actually placed under arrest. It is conceded that Officer Probasco was not under arrest at the time he made the statement to Officer Smith. Interrogation is also custodial, however, whenever the defendant is "deprived of his freedom of action in any significant way." Miranda, 384 U.S. at 444. In Trujillo, we stated that a court must "consider the totality of the circumstances surrounding the interrogation" in order to determine whether a "reasonable person in the suspect's position would consider himself deprived of his freedom of action in a significant way . . . ." Trujillo, 784 P.2d at 791. Factors include:
"The time, place and purpose of the encounter; the persons present during the interrogation; the words spoken by the officer to the defendant; the officer's tone of voice and general demeanor; the length and mood of the interrogation; whether any limitation of movement or other form of restraint was placed on the defendant during the interrogation; the officer's response to any questions asked by the defendant; whether directions were given to the defendant during the interrogation; and the defendant's verbal or nonverbal response to such directions."
People v. Thiret, 685 P.2d 193, 203 (Colo. 1984). As we stated in Trujillo, our role is to examine the record and determine whether the district court applied the correct legal standard and, if so, whether the ruling is "adequately supported by competent evidence." Trujillo, 784 P.2d at 792.
In ruling that the interrogation of Probasco was custodial, the district court found that when viewing the totality of the circumstances, any reasonable person would have considered "himself deprived of his freedom of action in a significant way." To reach that conclusion, the court relied on the time, place, and purpose of the encounter, and the subjective understanding of the defendant.
"[T]he defendant was first contacted over the body of the victim under circumstances implicating him in the death of the victim. The officers involved had received information through the dispatcher that there had been a problem on contact, and certainly the officers responding to the location of the defendant and the victim fully understood that it was something more than a mere traffic problem, . . . ."
The court also focused on the defendant's statement that he did not want to say anything immediately after the other officers arrived and found the defendant leaning over the body. The court took this statement to mean that the defendant subjectively knew that he was not free to leave. While the defendant's verbal and nonverbal responses are a factor to be taken into consideration, we believe the district court was too limited in its examination.
Miranda's protections seek to guard against involuntary incriminating statements made under the "inherently compelling pressures" present in custodial interrogations that "work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely." Minnesota v. Murphy, 465 U.S. 420, 430 (1984) (quoting Miranda, 384 U.S. at 467). In Murphy, the Court said that "[w]e have consistently held, however, that this extraordinary safeguard does not apply outside the context of the inherently coercive custodial interrogations for which it was designed." Murphy, 465 U.S. at 430 (citations omitted). The Court reaffirmed Miranda's limited application last term in Illinois v. Perkins, 496 U.S. 292, 58 U.S.L.W. 4737 (U.S. June 4, 1990). In Perkins, the Court stated that " Miranda forbids coercion," and acknowledged that "confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without compelling influences is, of course, admissible in evidence." Id. at 4739 (citations omitted). Perkins held that Miranda warnings were not required when an undercover police officer was sent into a cell to ask a prisoner questions designed to elicit incriminating statements concerning a separate crime, even though the defendant was clearly in custody and the questions fit the general definition of interrogation. "Coercion is determined from the perspective of the suspect, . . . [and] [w]hen a suspect considers himself in the company of cellmates and not officers, the coercive atmosphere is lacking." Id. (citations removed).
Although Perkins is distinguishable from the present case, the fact that Probasco was a police officer cannot be ignored. In this case, rather than fellow cellmates as in Perkins, Probasco was surrounded by his fellow police officers, men that he worked with daily and that were there, according to Officer Smith, trying to calm him down and tell him that everything would be all right. There is nothing in the record to indicate that any of the officers were trying to coerce an incriminating statement from Probasco.
We do not challenge the well-founded rule that once a suspect is confronted with custodial interrogation, his occupation has no bearing on whether he is entitled to Miranda warnings. "The requirement of Miranda warnings is not contingent upon a defendant's actual or presumed knowledge of his rights or on his status but, rather, must be honored in all instances of custodial interrogation." United States v. Longbehn, 850 F.2d 450 (8th Cir. 1988). But that is not the issue in this case. Rather, the issue is whether Probasco was in custody, and Probasco's status as a police officer is relevant to that question.
The fact that Probasco was a police officer, and therefore presumed to be familiar with his constitutional rights, would be irrelevant.
The test for determining whether a person is in a custodial setting is "whether a reasonable person in the suspect's position would consider himself deprived of his freedom in a significant way." People v. Milhollin, 751 P.2d 43, 49 (Colo. 1988) (emphasis added). The objective question here is whether a reasonable police officer, in Probasco's position, would consider himself to be deprived of his freedom in a significant way.
A court "must examine the facts and circumstances surrounding the situation to determine whether the Miranda protections apply in any given situation," and that determination "must be made on a case by case basis." People v. Wallace, 724 P.2d 670, 673 (Colo. 1986). The fact that Probasco was a police officer makes this situation unique.
The reason for the original contact between Probasco and his fellow officers was, quite simply, because the defendant himself was an on-duty police officer that had called for assistance. There is nothing in the record to suggest that the responding officers had any suspicion that Probasco had committed any wrong. The trial court relied on the fact that Probasco was first found standing over the body. Nothing in the record supports a claim that Probasco reasonably believed that he was suspected of wrongdoing. See New Jersey v. Bode, 108 N.J. Super. 363, 261 A.2d 396 (1970) (police officer called aside by police chief to discuss officer's theft of merchandise not in custody).
The trial court also relied on the testimony that Probasco was in a state of shock, and did not want to say anything, "at least suggest[ing] that he had some consciousness perhaps of a custodial type arrangement and that he was not free to leave." While such a reaction may be relevant, a suggestion alone is not enough to find that the defendant was in custody.
The trial court found that "[i]t's apparent from the Sergeant's [Officer Ringo's] testimony that subjectively, in the police, law enforcement's mind the defendant was not free to go anywhere." We held in People v. Wallace, 724 P.2d at 673, that "the police officer's subjective state of mind is not an appropriate standard for determining whether an individual has been deprived of his freedom of movement in any significant way." In People v. Black, 698 P.2d 766 (Colo. 1986), we found that "testimony by a police officer that he would not have allowed the defendant to leave the scene of the accident has no bearing on the custody issue where the officer does not communicate his intention to the suspect." The trial court here incorrectly relied on Officer Ringo's testimony that Probasco was not free to leave. Officer Ringo testified that Probasco was not free to leave for a variety of reasons, including that he might be a witness, that his uniform and weapon might be evidence, and that he " could possibly be a suspect." Therefore, Officer Ringo's testimony does not establish Probasco's claim that he was in custody.
The trial court stated that a reasonable person sitting in a police car and surrounded by three other officers would feel that his freedom was curtailed. As we said in People v. Garrison, 176 Colo. 516, 491 P.2d 971 (1971), however, "the fact that the defendant was asked to sit in a police car does not turn investigation into custody . . . ." 176 Colo. at 519-20, 492 P.2d at 973. Further, in this case, the defendant was asked to sit in his police car, which is not a "coercive environment." A reasonable police officer, under these circumstances, would believe that he was simply following the orders of a superior in his place of employment. See United States v. Goudreau, 854 F.2d 1097, 1098 (8th Cir. 1988) (police officer, ordered to go to F.B.I. office and testify in civil rights case, was not in custody for Miranda purposes). In United States v. Dockery, 736 F.2d 1232 (8th Cir.), cert. denied, 105 S. Ct. 197 (1984), the Eighth Circuit found that a bank employee was not in custody when she was ordered, by her employer, to accompany F.B.I. agents to an office as part of an investigation into bank embezzlement. Id. at 1235. "Ordinarily, when people are at work their freedom to move about has been meaningfully restricted, not by the actions of law enforcement officials, but by the workers' voluntary obligations to their employers." Id. at 1234 (quoting Immigration Naturalization Serv. v. Delgado, 104 S. Ct. 1758, 1763 (1984)). A reasonable police officer would not have believed that he could leave the scene of a shooting, which he was involved in, regardless of whether he was a suspect or not. The very fact that Probasco was an on-duty police officer involved in a shooting mandated that he stay on the scene and report to his superiors.
As in Dockery, Probasco was "never handcuffed, physically abused, or threatened." 736 F.2d at 1234. In Dockery, there was no custody even though the door to the room was shut and the employee was told that she was under investigation. Nor is a defendant's freedom curtailed in a significant way when the police have taken his license and registration, and have asked him to describe an automobile accident. People v. Black, 698 P.2d at 768-69.
The question posed here is no different than in Wallace, where the police officer approached the defendant at the scene of an automobile accident and asked him "what happened?" 724 P.2d at 674.
In short, there is nothing in the findings of fact that support the trial court's conclusion that a reasonable person in the suspect's position would have believed that his freedom was curtailed in a meaningful way. In United States v. Hall, 421 F.2d 540, 545 (2d Cir. 1969), cert. denied, 397 U.S. 990 (1970), the court of appeals held that
"in the absence of actual arrest, something must be said or done by the authorities, either in their manner of approach or in the tone or extent of their questioning which indicates that they would not have heeded a request to depart or to allow the suspect to do so."
There is simply nothing in the record, beyond normal employment obligations tied to Probasco's service as Deputy Sheriff, that would support a finding that Probasco was in custody. Probasco does not contend that his statement to his fellow officer was not voluntary. See People v. Mount, 784 P.2d 792, 796-97 (Colo. 1990).
Officer Smith also testified that the officers sitting in the car with the defendant were trying to calm him down and telling him that everything would be all right. A reasonable civilian sitting in that police car might have believed that he was in custody, but the reasonable police officer, while on duty, sitting in his police car with fellow officers that were also his friends, would not be likely to believe that his freedom of action was limited in a significant way.
The words spoken to the defendant and the other officers' general tone and demeanor were anything but harsh or threatening. The officer that asked the question testified that the reason he was there was to see if Probasco was all right. There is nothing in the record to indicate that the officer intended to interrogate Probasco, or that he was even directly involved with the investigation. The one question asked did nothing to lead a reasonable person to believe he was in custody, and the only direction given to the defendant was to go back to his car, thereby removing himself from a scene that the record reflected made him very uneasy and distraught. The totality of the circumstances could not, under these unique facts, amount to a finding that there was a custodial interrogation of the defendant.
Miranda's protections were meant to guard against the "compulsion inherent in custodial surroundings." Miranda, 384 U.S. at 458. Because a reasonable person in the defendant's circumstances would not have believed that he was in custody, no Miranda warnings were required.
As we said in Milhollin, a trial court's findings of fact are entitled to deference. "An ultimate conclusion of constitutional law that is inconsistent with or unsupported by evidentiary findings, however, is subject to correction by a reviewing court, . . . ." 751 P.2d at 50. Here, the trial court's conclusion that Probasco was in custody at the time he made an incriminating statement, and therefore was entitled to Miranda warnings, cannot be squared with that court's findings of fact. We conclude, therefore, that this was not a custodial setting, and that Probasco's statements should not have been suppressed.
Accordingly, the order of suppression is reversed, and the case is remanded for further proceedings consistent with this opinion.
JUSTICE QUINN dissents and JUSTICE LOHR joins in the dissent.