4097401111

Zendeh Del & Associates, PLLC


Zendeh Del & Associates, PLLC is a Galveston, Texas based law firm. We provide clients representation in criminal defense, family law, and personal injury cases.
*Principal Office in Galveston, TX*

409.740.1111
409.515.5007

Arrested?

Arrested? Contact the experienced criminal lawyers at Zendeh Del & Associates, PLLC

Family Matters?

Family Matters? Contact the experienced family lawyers at Zendeh Del & Associates, PLLC

Injured?

Injured? Contact the experienced personal injury lawyers at Zendeh Del & Associates, PLLC

Reasonable Person Would Have Beleived He Was In Custody - Statements Must Be Suppressed

Miranda Rights Must be Read When Suspect is in Custody
Miranda Rights Must be Read When a Suspect is in Custody
During the course of a traffic stop, the appellee made incriminating statements. The trial court suppressed the statements, finding that the appellee was "in custody" when the statements were made and that he had not been properly Mirandized. The State appealed, and the Seventh Court of Appeals, in a published opinion, affirmed the trial court's determination that the appellee was in custody when he made the incriminating statements. The Court of Criminal Appeals granted the State's petition for discretionary review to examine the court of appeals's determination that the initial traffic stop had shifted into a custodial detention. The Court of Criminal Appeals, after reviewing the record and arguments, determend that the Defendant's attorney was correct in his argument: Defendant was in custody (for Miranda purposes) at the time the incriminating statements were made, that Defendant had not been properly Mirandized by the police, and therefore, the statements that Defendant made WERE REQUIRED TO HAVE BEEN SUPPRESSED AND NOT ADMITTED AS EVIDENCE AT TRIAL.  State v. Ortiz, No. PD-1181-11 (Tex.Crim.App. Oct 31, 2012). If you were arrested and you believe the officer failed to advise you of your Miranda rights, you need an experienced criminal defense lawyer. Certain statements that you made might not be admissible in court.  Know your rights; call today.
IN THE COURT OF CRIMINAL APPEALS

OF TEXAS



NO. PD-1181-11


THE STATE OF TEXAS
v.

OCTAVIO ORTIZ, Appellee


ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE SEVENTH COURT OF APPEALS
LUBBOCK COUNTY


Price, J., delivered the opinion of the Court in whichWomack, Johnson,

Keasler, Hervey, Alcala and Cochran, JJ., joined. Keller, P.J., concurred in the

result. Meyers, J., not participating.



O P I N I O N



During the course of a traffic stop, the appellee made incriminating statements. The trial court suppressed the statements, finding that the appellee was in custody when the statements were made and that he had not been properly Mirandized. The State appealed, and the Seventh Court of Appeals, in a published opinion, affirmed the trial court's determination that the appellee was in custody when he made the incriminating statements. We granted the State's petition for discretionary review to examine the court of appeals's determination that the initial traffic stop had shifted into a custodial detention. We now affirm.

FACTS AND PROCEDURAL POSTURE


In the Trial Court



The appellee was indicted for possession with the intent to deliver more than 400 grams of cocaine. Prior to trial, he filed a motion to suppress statements he made during a traffic stop, in which law enforcement officers discovered cocaine and subsequently arrested him. At the motion to suppress hearing, the State called only one witness, the arresting officer, Corporal Jason Johnson of the Lubbock County Sheriff's Department. During Johnson's testimony, the State admitted into evidence and played a video of the stop recorded from Johnson's squad-car camera. The appellee presented no evidence. Through Johnson's testimony, the State elicited the following narrative. On May 20, 2009, Johnson was assigned to criminal-interdiction patrol and was working on U.S. Highway 87, south of Lubbock. At approximately 10:30 a.m., Johnson clocked the appellee's Dodge Avenger, with Chihuahua, Mexico license plates, going thirteen miles per hour over the speed limit. Johnson initiated a traffic stop. Once the Avenger came to a stop, Johnson approached it and briefly questioned the appellee. After asking for the appellee's license and insurance information, Johnson asked the appellee to step out of the car and move to Johnson's patrol car, which was parked directly behind the appellee's car. There, Johnson began to question the appellee. The appellee revealed that he was going, with his wife, Mrs.

Ortiz, to Spearman, Texas. Additionally, the appellee stated that he was on probation in Spearman "for drugs," specifically "one-eighth" of cocaine. After questioning the appellee, Johnson approached the appellee's car to question Mrs. Ortiz, who was sitting in the front passenger seat. Among other things, Mrs. Ortiz explained that they were traveling to Gruver, Texas. Because this explanation conflicted with the appellee's account, Johnson called for backup officers. While waiting for backup to arrive, Johnson returned to the appellee, and asked him "point blank," "How much drugs are in the car?" The appellee responded "No. No. No. No." The appellee then consented to a search of his person and his car. While Johnson searched the appellee, backup officers, Deputy Pierpoint and Officer Vargas, arrived. Vargas approached the appellee's car, in which Mrs. Ortiz remained seated. Mrs. Ortiz stepped out of the vehicle, apparently at Vargas's direction, and Vargas began to pat her down. When Mrs. Ortiz apparently made movements to avert the patdown, Vargas started to handcuff her, and Pierpoint came to Vargas's aid.

Shortly after handcuffing Mrs. Ortiz, Pierpoint and Vargas signaled back to Johnson, indicating that they had apparently discovered something during the patdown of Mrs. Ortiz. Johnson then turned to the appellee and said, "Yep. Turn around. Put your hands behind your back." Johnson then handcuffed the appellee. About this time, Pierpoint walked back to Johnson's patrol car and informed Johnson that Vargas had found "something" under Mrs. Ortiz's skirt. Johnson then turned to the appellee and asked him in Spanish, "What kind of drugs does your wife have?" After prompting Johnson to repeat the question, which Johnson did, the appellee responded, "coca." Johnson began to repeat the question, again in Spanish, "What kind of drugs . . .?" Before Johnson could finish, the appellee cut him off, answering, "cocaina." Johnson explained that "coca" and "cocaina" are Spanish words for cocaine. The appellee was not given Miranda warnings before making the cocaine statements.

It is the admissibility of the cocaine statements that is now the subject of our review. Based on Johnson's testimony and the video recording of the traffic stop, the trial court found that, by the time he was placed in handcuffs, the appellee was arrested and in custody for Miranda purposes. Because Johnson failed to advise the appellee of his Miranda rights before asking him the series of questions that elicited the cocaine statements, the trial court expressly ruled that those statements were inadmissible and must be suppressed. The State filed an interlocutory appeal.

In the Court of Appeals

The court of appeals affirmed the trial court's ruling. In Berkemer v. McCarty, the United States Supreme Court announced the general rule that a traffic stop ordinarily

amounts only to a temporary detention, and the occupants of the detained vehicle are not

subjected to custody for Miranda purposes. If, during the course of the detention, however,

an occupant's freedom is constrained to the "degree associated with formal arrest," then Fifth

Amendment protections are triggered and a suspect is entitled to Miranda warnings. Applying this standard, the court of appeals concluded that, given all the circumstances, the

appellee was legally in custody when he made the cocaine statements. In reaching this

conclusion, the court of appeals did not provide a particularly in-depth analysis of how the

law should apply to the facts presented; it simply invoked the appropriate case law, cataloged

the facts of the appellee's case, and somewhat summarily announced its conclusion. We

granted the State's petition for discretionary review in order to take a closer look.

THE LAW

Appellate Standard of Review

When reviewing a trial court's findings of fact and conclusions of law regarding a motion to suppress evidence, an appellate court must give almost total deference to the trial

court's assessment of historical facts. The same deference is afforded to the trial court's

conclusions with respect to mixed questions of law and fact that turn on credibility or

demeanor. When the posture of a case does not present issues of pure fact, or of mixed

questions of law and fact that turn on credibility or demeanor, and presents only questions

of the validity of the trial court's "legal rulings"--as in the instant case--an appellate court's

review is de novo.

The Miranda Custody Analysis as Applied to Traffic Stops

Generally, a routine traffic stop does not place a person in custody for Miranda purposes. But a traffic stop may escalate from a non-custodial detention into a custodial

detention when formal arrest ensues or a detainee's freedom of movement is restrained "to

the degree associated with a formal arrest." We evaluate whether a person has been

detained to the degree associated with arrest on an ad hoc, or case-by-case, basis. In

making the custody determination, the primary question is whether a reasonable person

would perceive the detention to be a restraint on his movement "comparable to . . . formal

arrest," given all the objective circumstances.

In evaluating whether a reasonable person would believe his freedom has been restrained to the degree of formal arrest, this Court looks only to the objective factors

surrounding the detention. The subjective beliefs of the detaining officer are not included

in the calculation of whether a suspect is in custody. But if the officer manifests his belief

to the detainee that he is a suspect, then that officer's subjective belief becomes relevant to

the determination of whether a reasonable person in the detainee's position would believe

he is in custody. Conversely, any undisclosed subjective belief of the suspect that he is

guilty of an offense should not be taken into consideration--the reasonable person standard

presupposes an "innocent person."

ANALYSIS

Applying this standard, we agree with the court of appeals that, at the moment that Johnson elicited the cocaine statements from the appellee, a reasonable person in the

appellee's position would have believed, given the accretion of objective circumstances, that

he was in custody. The objective facts show that, by that time: (1) Johnson had expressed

his suspicion to the appellee "point blank" that he had drugs in his possession; (2) two

additional law enforcement officers had arrived on the scene; (3) Mrs. Ortiz and the appellee

had both been patted down and handcuffed; and (4) the officers had manifested their belief

to the appellee that he was connected to some sort of (albeit, as-yet undisclosed) illegal or

dangerous activity on Mrs. Ortiz's part. These circumstances combine to lead a reasonable

person to believe that his liberty was compromised to a degree associated with formal arrest.Johnson Expressed his Suspicion to the Appellee that He Possessed Drugs

The State complains that the court of appeals did not presuppose an innocent person when making its determination that the appellee was in custody. Specifically, according to

the State, the trial court took into consideration the appellee's subjective knowledge that his

wife had cocaine on her person. The State is correct, of course, that only the objective

circumstances known to the detainee should be considered in deciding what a reasonable

person in his position would believe. But we disagree that the court of appeals included the

appellee's subjective knowledge that Mrs. Ortiz possessed cocaine in its custody analysis.

Instead, the court of appeals took into consideration Johnson's suspicion that the appellee had

drugs, which Johnson unmistakably communicated to the appellee during the course of the

detention. No more than ten minutes into the stop, Johnson expressly accused the appellee

of having drugs ("How much drugs are in the car?"), asked for permission to search both the

appellee's car and his person, and began searching. Later, after Pierpoint informed Johnson

that Vargas had found "something" under Mrs. Ortiz's skirt, Johnson asked the

appellee--more than once--"What kind of drugs does she have?" This question, by its very

nature, conveyed to the appellee Johnson's presupposition that the appellee was aware that

his wife possessed drugs and that the appellee knew what kind of drugs she possessed.

Johnson's overt attitude concerning the appellee's likely complicity, because it would have

been readily apparent to the appellee, constituted "one among many factors that bear upon

the assessment of whether [the appellee] was in custody." It provides substantial support

for the court of appeals's conclusion that a reasonable person in the appellee's position would

have believed he was in custody by the time he made the cocaine statements.

Coercive Nature of the Stop

A normal traffic stop is a non-custodial detention because it is brief and relatively non-coercive. In holding that a traffic stop is generally less coercive than a custodial

detention, the Berkemer Court observed that, during a traffic stop, a detainee is typically

"only confronted by one or at the most two policemen[,which] further mutes his sense of

vulnerability." By the time he made the cocaine statements in this case, however, the

appellee's detention had escalated into something inherently more coercive than a typical

traffic stop. An ordinary traffic stop usually involves a single police car and one or two

officers. The appellee was faced with at least two police cars and three officers by the time

he made the cocaine statements. While this is hardly an overwhelming show of force, it adds

at least marginally to the court of appeals's conclusion that the appellee was in custody for

Miranda purposes at that time.

Handcuffing

The State worries that the court of appeals in this case adopted a blanket rule that handcuffing a traffic suspect automatically means that the suspect is in custody. In our view,

however, the court of appeals properly relied on handcuffing as only one of a range of

relevant factors in its determination that the appellee was in custody for Fifth Amendment

purposes. The court of appeals certainly did not categorically hold, as the State suggests,

that the mere act of handcuffing, by itself, will establish custody.

Here, not only was the appellee handcuffed--he was handcuffed right after Mrs. Ortiz was handcuffed. In the course of Mrs. Ortiz's patdown, Vargas and Pierpoint signaled to

Johnson, who was standing with the appellee, that they had found something illegal or

dangerous. By immediately handcuffing the appellee as well ("Yep. Turn around. Put your

hands behind your back."), Johnson conveyed to the appellee Johnson's belief that the

appellee was associated with his wife's illicit behavior--whatever it may have been. This

circumstance lends additional support to the court of appeals's conclusion that a reasonable

person in the appellee's shoes would have realized that the detention had transcended the

boundaries of a mere traffic stop and blossomed into a custodial arrest for a much more

serious (if, as yet, undisclosed) offense.Officer Pierpoint's Actions After Handcuffing

Finally, one more event contributes to the conclusion that a reasonable person in the appellee's position would believe he was in custody when he made the cocaine statements.

After the appellee was handcuffed, Pierpoint approached Johnson and announced, in the

appellee's presence, that the officers had indeed found "something" under Mrs. Ortiz's skirt.

This would have further reinforced the appellee's perception that both his wife and, by

association, he himself, were now under detention for some illegality substantially more

serious than a mere speeding infraction. Had Pierpoint not made his announcement within

the appellee's earshot, we agree with the State that it would not be relevant to the custody

analysis. But because the appellee apparently heard it, it does properly constitute an

objective factor in the custody determination.The Accretion of Objective Circumstances

Establishes Custody for Miranda Purposes


All of these circumstances combine to support the court of appeals's ultimate conclusion that a reasonable person in the appellee's position would have believed he was

in custody when he made the cocaine statements. By that time, Johnson had expressly

accused the appellee, more than once, of having drugs in his car or on his person and implied

that he believed that the appellee was aware of what kind of drugs his wife possessed.

Multiple backup officers had arrived on the scene. Vargas and Pierpoint had signaled to

Johnson, in the appellee's presence, that Mrs. Ortiz had something illegal or dangerous.

Pierpoint and Vargas had handcuffed Mrs. Ortiz, and Johnson had handcuffed the appellee

immediately thereafter, signaling his belief that the appellee shared complicity in her

transgression. Pierpoint then confirmed, within the appellee's earshot, that Vargas had

indeed found something illegal or dangerous hidden under Mrs. Ortiz's skirt. Even the

presumptively innocent reasonable person--that is to say, the reasonable person whom we

must presume to have been unaware of the kilo of cocaine under his wife's skirt--would

have believed, under the objective circumstances, that his liberty was constrained to a degree

consistent with formal arrest for some substantial offense.

Addendum: The Dowthitt Categories

Finally, the State complains that the court of appeals erred by failing to determine in its custody analysis whether the circumstances of the appellee's traffic stop satisfy one of

categories recognized in Dowthitt v. State. In Dowthitt, we reiterated four situations,

originally described in Shiflet v. State, which, we said "may constitute custody:"

(1) when the suspect is physically deprived of his freedom of action in any significant way, (2) when a law enforcement officer tells the suspect that he

cannot leave, (3) when law enforcement officers create a situation that would

lead a reasonable person to believe that his freedom of movement has been

significantly restricted, and (4) when there is probable cause to arrest and law

enforcement officers do not tell the suspect that he is free to leave. But in light of the United States Supreme Court's decisions in Beheler and Stansbury, in

Dowthitt we qualified the Shiflet categories. We explained that, for the first through third of

these categories to constitute Miranda custody, Beheler / Stansbury required a restriction on

a detainee's freedom of movement that was more than just "significant"--it must be "to the

degree associated with an arrest." With regard to the fourth category, we explained that the

officer's belief that probable cause exists must be "manifested to the suspect."

The State maintains that the court of appeals was required to, but did not, fit the facts of the instant case into one of these four Dowthitt categories before it could declare that the appellee was in custody for Miranda purposes. But this is a distortion of the import of our

holding in Dowthitt. The Dowthitt categories were intended to be merely descriptive, not

exhaustive. We held that the four categories "at least . . . may constitute custody." We

never said that, in order for a set of circumstances to constitute custody, an appellate court

must be able to fit it into one of these descriptive categories. The State's suggestion

otherwise is at odds with our insistence, in Dowthitt itself, that Fifth Amendment custody

determinations should be made on a case-by-case basis, considering all of the objective

circumstances. Moreover, in cases we have decided since Dowthitt, we have consistently

applied Dowthitt's ad hoc approach, without necessarily referring to any of the particular

Dowthitt categories. In any event, even if we were required to wedge the circumstances of

the appellee's detention into one of the four Dowthitt categories, we would conclude that they

fit comfortably within Dowthitt's first category. After all, as we have already held, the

objective circumstances of the appellee's detention, by the time he made the cocaine

statements, would lead a reasonable person to believe that he was "physically deprived of his

freedom of action . . . to the degree associated with an arrest."

CONCLUSION

The court of appeals did not err to affirm the trial court's conclusion that a reasonable person in appellee's position would have believed, given all the objective circumstances, that,

at the moment he made the cocaine statements, he was in custody for Fifth Amendment

purposes. Accordingly, we affirm the judgment of the court of appeals.

DELIVERED: October 31, 2012


Posted Mon, November 19, 2012 - 9:17:25