People v. Breidenbach, 93SA309

Docket NºNo. 93SA309
Citation875 P.2d 879
Case DateJune 13, 1994
CourtSupreme Court of Colorado

Page 879

875 P.2d 879
The PEOPLE of the State of Colorado, Plaintiff-Appellant,
Stephen C. BREIDENBACH and Denise Diana Breidenbach,
No. 93SA309.
Supreme Court of Colorado,
En Banc.
June 13, 1994.

Page 883

Chris D. Hefty, Dist. Atty., Thirteenth Judicial Dist., Fort Morgan, for plaintiff-appellant.

Robert W. Cook, Arlad W. Shunneson, Boulder, for defendants-appellees.

Justice MULLARKEY delivered the Opinion of the Court.

The district attorney brings this interlocutory appeal pursuant to C.A.R. 4.1 and section 16-12-102(2), 8A C.R.S. (1986 & 1993 Supp.), to challenge an order of the Logan County District Court suppressing evidence and statements made by defendant Stephen C. Breidenbach (Steve Jr.). For the reasons set forth below, we affirm the suppression order in part, reverse in part, and remand the case to the district court for further proceedings consistent with this opinion.


The Logan County Sheriff's Office received information from a crime stopper's report that marihuana was being grown by Doug Breidenbach on agricultural land located in Logan County. In an effort to corroborate this information, on September 25, 1992, Undersheriff Robert Bollish requested that a helicopter perform an aerial search of property owned by members of the Breidenbach family. During one of the helicopter fly-overs, marihuana was spotted in a field owned by Breidenbach Brothers, Inc. (Breidenbach Brothers), 1 and a search warrant was obtained for this property. 2

While en route to the field, Bollish stopped Steve Jr.'s father, Stephen J. Breidenbach (Steve Sr.), on a farmstead compound five to eight miles away from the area where the search warrant was executed. The compound consisted of three to five acres, and contained barns, corrals, two homes and miscellaneous outbuildings. The compound was owned by Steve Sr., but Steve Jr. and David lived there in separate houses as compensation for doing farm work for their father.

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After Bollish told Steve Sr. that marihuana had been found on the Breidenbach Brothers' property, Steve Sr. signed a written consent form authorizing officers to search all property owned or leased by him. Later, David also signed a written consent authorizing the search of all Breidenbach Brothers' property.

Soon thereafter, David and Steve Sr. accompanied three law enforcement officials on a tour of the buildings on the compound. During a search of one of the buildings, Deputy Page observed a man running into a wooded area several yards away. Page drew his weapon and pursued the man, later identified as Steve Jr., who was crouched down behind a tree. Without reholstering his weapon, Page asked Steve Jr. who he was, and what he was doing there. According to the district court, Steve Jr. answered that he was "checking irrigation water in a nearby ditch." Page then said "I think you are lying to me. I think you are destroying marihuana plants." Steve Jr. responded by telling Page that there were four marihuana plants growing in the area. Page then took Steve Jr. by the arm, and asked him to lead Page to the plants. They walked a few feet into the wooded area and Steve Jr. showed Page two of the plants. At that time, Page holstered his weapon and told Steve Jr. that he was under arrest. Steve Jr. then was handcuffed and escorted to a police car parked in the compound.

Before placing him into the car, Page asked Steve Jr. if he would consent to a search of his home, and Steve Jr. refused. He also asked his wife, defendant Denise Diana Breidenbach, not to allow the police to search their home. Steve Jr. then left in the custody of Page, destined for the Logan County Jail in Sterling, Colorado.

On the way, Page indicated on the police radio that he had a subject in custody and was transporting him to Sterling. Bollish heard this radio transmission and instructed Page to stop and await his arrival at a site approximately one-half mile from the arrest location. Upon his arrival at the meeting point, Bollish again asked Steve Jr. to consent to the search of his home. Initially, Steve Jr. refused, but he later consented when Bollish told him "[w]e are going to get a warrant anyway." Once Bollish obtained Steve Jr.'s consent, he returned to the property to search the defendants' residence. Denise Breidenbach was arrested after officers found marihuana and several firearms in the home.

When Steve Jr. was being booked into the Logan County Jail, Page advised him of his Miranda 3 rights for the first time, and he signed the advisement form indicating that he understood his rights. Page then asked Steve Jr. to provide a written statement, which Steve Jr. agreed to do after being told that things would be easier for him if he did so. This statement was obtained approximately one hour and five minutes after Steve Jr.'s arrest. 4

On October 5, 1992, Steve Jr. and Denise Breidenbach were charged with cultivation of marihuana 5 and possession of eight ounces or more of marihuana. 6 They later filed motions to suppress all evidence and statements, and these motions were granted by the district court on October 28, 1993. In its order, the district court concluded that the statements initially made by Steve Jr. were obtained in violation of the Fourth Amendment because the prosecutor failed to establish that David and Steve Sr. had the authority to consent to a warrantless search of the area where Steve Jr. was found. Alternatively, the district court found that the statements were elicited by Page during a custodial interrogation without benefit of a prior Miranda warning. The district court further determined that Steve Jr.'s actions in showing Page the location of the marihuana plants, his consent to the search of his home, and his written statement at the jail were either involuntary statements or products of

Page 885

the illegal interrogation. Accordingly, the district court suppressed all of the statements and evidence obtained by law enforcement officials in this case.

Steve Jr.'s Statements

Under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), statements made by a defendant during a custodial police interrogation are inadmissible as evidence in a criminal case unless the prosecutor establishes that the defendant was advised of certain constitutional rights and waived those rights. Thus, two requirements must be met before Miranda is applicable: the person making the statement must be in "custody," and the statement must be the product of police interrogation. People v. Haurey, 859 P.2d 889, 893 (Colo.1993); People v. Sharpless, 807 P.2d 590, 591 (Colo.1991); People v. Horn, 790 P.2d 816, 817 (Colo.1990).

The prosecution contends that the district court erred in concluding that Steve Jr. was in custody during his initial encounter with Deputy Page in the woods. According to the prosecution, this encounter was simply an "investigatory stop," 7 as opposed to an arrest. In our view, this argument is based on a misunderstanding of the definition of custody and its application to the facts in this case.

We have frequently stated that the term "custody" encompasses more than formal arrest situations. People v. LaFrankie, 858 P.2d 702, 705 (Colo.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1663, 128 L.Ed.2d 379 (1994); People v. Thomas, 839 P.2d 1174, 1179 (Colo.1992); People v. Hamilton, 831 P.2d 1326, 1330 (Colo.1992). The only relevant inquiry is whether a reasonable person in the suspect's position would consider himself deprived of his freedom of action in a significant way at the time of questioning. Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 3151-52, 82 L.Ed.2d 317 (1984); Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 713-14, 50 L.Ed.2d 714 (1977); Miranda, 384 U.S. at 444, 86 S.Ct. at 1612; Haurey, 859 P.2d at 893; LaFrankie, 858 P.2d at 705. The determination of whether an individual was in custody at the time of questioning is a question of fact to be resolved by the trial court after assessing the credibility of witnesses and weighing their testimony. LaFrankie, 858 P.2d at 706; Hamilton, 831 P.2d at 1331; People v. Trujillo, 784 P.2d 788, 792 (Colo.1990). These findings will not be reversed on appeal if supported by competent evidence and if the correct legal standard was applied. Haurey, 859 P.2d at 893; People v. Probasco, 795 P.2d 1330, 1332 (Colo.), cert. denied, 498 U.S. 999, 111 S.Ct. 558, 112 L.Ed.2d 564 (1990); Horn, 790 P.2d at 818.

Although an investigatory stop is a "seizure" within the meaning of the Fourth Amendment, Thomas, 839 P.2d at 1177, this does not necessarily mean that the suspect is "in custody" for purposes of Miranda. See Berkemer, 468 U.S. at 440, 104 S.Ct. at 3150; United States v. Streifel, 781 F.2d 953, 958 (1st Cir.1986); People v. Archuleta, 719 P.2d 1091, 1093 (Colo.1986). This is because an investigatory stop usually involves no more than a very brief detention without the aid of weapons, and an atmosphere which is less threatening than that surrounding the kinds

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of interrogation at issue in Miranda. Berkemer, 468 U.S. at 440, 104 S.Ct. at 3150; United States v. Perdue, 8 F.3d 1455, 1464 (10th Cir.1993).

This is not to say, however, that Miranda rights can never be implicated during a valid investigatory stop. Rather, a court must examine the facts and circumstances surrounding the encounter in order to determine whether Miranda applies. California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983) (per curiam); People v. Wallace, 724 P.2d 670, 673 (Colo.1986). Thus, Miranda rights can be implicated when police detain a suspect using a degree of force more traditionally associated with concepts of "custody" and "arrest" than with a brief investigatory detention. Berkemer, 468 U.S. at 440, 104 S.Ct. at 3150; see also Perdue, 8 F.3d at 1466 (Miranda warnings required when officers forced suspect's car to stop with their guns and then...

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