People v. Roark, Docket No. 170137

• Decision Date: 07 February 1996
• Docket Number: Docket No. 170137
• Citation: 543 N.W.2d 23,214 Mich.App. 421
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Sherry A. ROARK, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 23

543 N.W.2d 23

214 Mich.App. 421

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Sherry A. ROARK, Defendant-Appellant.

Docket No. 170137.

Court of Appeals of Michigan.

Submitted Nov. 7, 1995, at Lansing.

Decided Nov. 28, 1995.

Released for Publication Feb. 7, 1996.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Richard Thompson, Prosecuting Attorney, and Joyce F. Todd, Chief, Appellate Division.

William A. Wertheimer, Royal Oak, for defendant on appeal.

Before SAWYER, P.J., and YOUNG and NEILSON, ^* JJ.

PER CURIAM.

Defendant was convicted, following a jury trial, of possession of less than twenty-five grams of cocaine. M.C.L. § 333.7403(2)(a)(v); M.S.A. § 14.15(7403)(2)(a)(v). She thereafter pleaded guilty of being a habitual offender (second offense). M.C.L. § 769.10; M.S.A. § 28.1082. She was sentenced to probation. She now appeals and we reverse.

Defendant's only argument on appeal is that the trial court erred in denying her motion to suppress statements made to the police because they had been made without the advice of rights required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We agree. Defendant had been involved in a motor vehicle accident and was unable to produce a driver's license to the investigating police officer because her license had been suspended. The officer took defendant's name and ran a records check, discovering that there were outstanding arrest warrants. While the officer was waiting for confirmation of the validity of the warrants, defendant had approached the police cruiser. The officer asked her to sit in the rear seat of the cruiser. He advised her of the outstanding warrants and that she would be required to post a $330 bond. The officer heard defendant rummage through her purse for the money and decided to search the purse for weapons. While a search of the purse revealed no weapons, it did yield a plastic bag that had three rolled-up one dollar bills and the residue of a white powdery substance.

The officer obtained consent to search defendant's vehicle and called in a canine unit. Defendant remained in the rear of the cruiser. Following the search by the canine unit, defendant was advised that upon posting the bond she would be free to leave. It was after the search by the canine unit but before defendant left the police cruiser that she was questioned by the officer and made an incriminating statement. The trial court ruled that because defendant had been advised that she would be free to leave upon posting the bond, she was no longer in custody and, therefore, the officer was not required to advise her of her Miranda rights. We disagree.

Warnings under Miranda are required when a person is in custody or otherwise deprived of freedom of action in any significant manner. People v. Mayes (After Remand), 202 Mich.App. 181, 190, 508 N.W.2d 161 (1993). We look to the totality of the circumstances to determine if the defendant was in custody at the time of the interrogation, with the key question being whether the accused reasonably could have believed that he was not free to leave. Id.

It is not argued here that defendant made the statements after she posted bond and was told she could leave. Rather, it is the position of the prosecutor and the trial court that defendant was not in custody because the officer had advised her that he would not be transporting her to jail, but that she would have the opportunity to post a cash bond and be released. In essence, the trial court concluded that once the officer informed defendant that he would be releasing her upon the posting of the bond and...