People v. Becker
| Decision Date | 24 November 2008 |
| Docket Number | No. 08SA235.,08SA235. |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellant v. David Allison BECKER, Defendant-Appellee. |
| Court | Colorado Supreme Court |
Bill Thiebaut, District Attorney, Tenth Judicial District, Richard W. Dickerson, Deputy District Attorney Pueblo, Colorado, Attorneys for Plaintiff-Appellant.
Buxman Kwitek & Ohlsen, P.C., Karl S. Tameler, Pueblo, Colorado, Attorney for Defendant-Appellee.
In this interlocutory appeal taken pursuant to C.A.R. 4.1, we review an order from the Pueblo County District Court suppressing statements the defendant made in response to police interrogation. We find that the trial court erred in suppressing those statements because the defendant was not in custody at the time the statements were made. We therefore reverse the trial court's suppression order and remand for further proceedings.
On April 27, 2006, Narcotics Detective Leide DeFusco of the City of Pueblo Police Department was contacted by Albertson's pharmacy with a report of an apparently altered prescription. The pharmacist, Anthony Blackmoore, told DeFusco that the defendant, David Allison Becker, had attempted to fill a prescription shortly before the pharmacy closed that day. Blackmoore informed Becker that he could not fill the prescription until he verified its authenticity with the prescribing doctor. Blackmoore suspected that the prescription had been altered because it contained both a prescription for Ativan, a schedule IV controlled substance, and one for Adderall, a schedule II controlled substance. Blackmoore was aware that federal law mandates that when a schedule II controlled substance is prescribed, nothing else may accompany it on the same prescription.
The following morning, another Albertson's pharmacist, Laura Fossceco, called the prescribing doctor, Dr. Wofford. After Fossceco faxed Wofford's office a copy of the apparently forged prescription, the office confirmed that the original prescription had indeed been altered. Dr. Wofford later informed DeFusco that he had prescribed only Ativan, and not Adderall, for Becker.
Fossceco then contacted DeFusco and informed him that the prescription was in fact altered. DeFusco instructed her to fill the prescription with five Adderall pills and five Ativan pills, and to wait until he arrived at the pharmacy to give the pills to Becker. She followed those instructions, and after Becker purchased the pills, DeFusco confronted him. DeFusco, dressed in plain clothes and carrying a concealed weapon, informed Becker that he was a police officer, showed him his badge, and told him they needed to talk about a possibly altered prescription. Becker told DeFusco that his doctor had prescribed the Adderall. DeFusco then seized Becker's prescription bag and the two of them entered an employee lounge in the store to discuss the prescription.
DeFusco informed Becker that he was not under arrest and that he would not be arrested. DeFusco also told Becker that he would not likely spend any time in jail — something he tells most suspects based on their criminal histories. However, he did not read Becker his Miranda rights. Becker asked if his wife could be present during the interrogation, and DeFusco approved. DeFusco testified that he accompanied Becker out into the store, standing "more than an arm's length" from Becker while he located his wife. All three then returned to the employee lounge to discuss the prescription.
DeFusco testified that the lounge was a separate room that did not have a door on it. There was a rectangular table near the entryway to the lounge. Becker and his wife were sitting next to each other at the table, and DeFusco was moving around the room throughout the interview. DeFusco testified that he stood facing the entryway, avoiding having his back to the entryway because he "didn't want to give the appearance that [Becker] wasn't free to leave because he was free to leave." A couple of employees entered the lounge during the interview, and DeFusco asked them to leave.
DeFusco again explained why he was called to the pharmacy and asked Becker why he added the Adderall to the prescription. When confronted with the double prescription, each prescription having been written in different handwriting, Becker admitted that he added the prescription for Adderall to the original prescription for Ativan. Becker then accused the prescribing doctor, Dr. Wofford, of being "a pill doctor" who "gives [pills] out to anyone." He told DeFusco that Dr. Wofford came to see him while he was in the hospital in February 2006, and Wofford issued the Ativan prescription at that time. Becker told DeFusco that he altered the prescription, adding Adderall, while he was still in the hospital. When asked why he forged the prescription in February but waited until April to have the prescription filled, Becker said he did not need the pills until April.
At that point, the interview concluded. DeFusco gave Becker his name and phone number and informed him that he would write up a report and send it to the District Attorney's office. DeFusco testified that the interview lasted approximately twenty minutes and that he did not raise his voice or become angry at any time. Likewise, Becker's wife testified that the tone of the entire conversation was civil. However, she also testified that she never heard DeFusco tell her husband that he was not under arrest, she thought he was under arrest, and she was surprised when he was allowed to leave at the end of the interview.
Becker was charged with Possession of a Schedule II Controlled Substance — More than One Gram, in violation of section 18-18-405, C.R.S. (2008), and Obtaining a Controlled Substance by Fraud and Deceit, in violation of section 18-18-415, C.R.S. (2008). Becker filed motions to suppress evidence, physician's statements, and his own statements. The trial court denied the motions to suppress evidence and physician's statements, but granted the motion to suppress Becker's statements, finding that the statements were given in response to custodial interrogation conducted without first advising him of his Miranda rights. The People appealed.
The prosecution may not use against a defendant any statements he made during the course of custodial interrogation unless the defendant was given the requisite warnings. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The fact that DeFusco's questioning constituted interrogation is not disputed in this case. We turn, then, to whether the defendant was "in custody." Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977) ().
We review a trial court's custody determination de novo. People v. Matheny, 46 P.3d 453, 459 (Colo.2002). We laid out the formal test for custody determinations in Matheny: we must objectively determine "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." Id. at 467. See also People v. Stephenson, 159 P.3d 617, 620 (Colo.2007) (). Factors to be considered include:
(1) the time, place, and purpose of the encounter; (2) the persons present during the interrogation; (3) the words spoken by the officer to the defendant; (4) the officer's tone of voice and general demeanor; (5) the length and mood of the interrogation; (6) whether any limitation of movement or other form of restraint was placed on the defendant during the interrogation; (7) the officer's response to any questions asked by the defendant; (8) whether directions were given to the defendant during the interrogation; and (9) the defendant's verbal or nonverbal response to such directions.
Matheny, 46 P.3d at 465-66 (quoting People v. Trujillo, 938 P.2d 117, 124 (Colo.1997)). No single factor is determinative, and the totality of the circumstances must be considered. People v. Dracon, 884 P.2d 712, 717 (Colo.1994).
The present case can easily be analogized to our Matheny decision. There, the suspect was confronted at his place of employment and "asked, not told" to come down to the police station to discuss an ongoing investigation. Matheny, 46 P.3d at 467. His mother met him at the station, where he was told that he was not under arrest and could leave at any time. Id. The suspect then proceeded, in a narrative fashion, to explain to investigators what happened on the night in question. Id. Throughout the interrogation, investigators "were completely honest" with the suspect and "did nothing other than encourage him to tell the truth and warn him of the consequences of lying." Id. The investigators spoke with soft voices, were polite, gave the suspect no directions, and placed no restraint upon him. Id. We concluded that the suspect was not in custody until he was arrested, although investigators intended to persuade the suspect to admit that he was involved in the crime. Id.
The interrogation that took place here is similar to that in Matheny. Becker was asked, not told, to accompany DeFusco to the employee lounge to discuss his involvement with the forged prescription. DeFusco testified that he informed Becker that he was not under arrest.1 The tone of the conversation remained civil throughout.2 DeFusco was honest with Becker, encouraging him to tell the truth in order to avoid jail time. Becker's story about forging the prescription in the hospital was told in narrative fashion. No restraints were ever used, and DeFusco's weapon was concealed the entire time. The lounge did not have a door, and DeFusco moved around the room during the...
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...2008) (citing People v. Matheny , 46 P.3d 453, 465-66 (Colo. 2002) ). Still, "[n]o single factor is determinative." People v. Becker , 196 P.3d 264, 266 (Colo. 2008). ¶ 14 Routine traffic stops do not implicate Miranda because the nature of the detention is brief and outside a "police domin......