State v. Connery

• Decision Date: 06 June 1989
• Docket Number: Cr. N
• Citation: 441 N.W.2d 651
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Kevin CONNERY, Defendant and Appellant. o. 880274.
• Court: North Dakota Supreme Court

Page 651

441 N.W.2d 651

STATE of North Dakota, Plaintiff and Appellee, v. Kevin CONNERY, Defendant and Appellant.

Cr. No. 880274.

Supreme Court of North Dakota.

June 6, 1989.

Bruce B. Haskell (argued), Asst. State's Atty., Bismarck, for plaintiff and appellee.

Feldner & Danielson, Mandan, for defendant and appellant; argued by Rodney K. Feldner.

ERICKSTAD, Chief Justice.

Kevin Connery appeals from a criminal judgment entered on a jury verdict finding him guilty of possession of a controlled substance in violation of Sec. 19-03.1-23, N.D.C.C. We affirm.

At approximately 8 p.m. on November 1, 1987, Highway Patrol Officer Scott Brand stopped a vehicle driven by Connery on Highway 83 north of Bismarck because of a speeding violation. After obtaining Connery's driver's license, Brand returned to his patrol car, completed a traffic citation, and returned to Connery's vehicle with a flashlight to have him sign the citation. Brand noticed an open beer can in the front seat and asked Connery and his passenger to step out and stand in front of the vehicle. Brand reached into the driver's side of the vehicle, picked up the can, which was empty, and noticed a paper bag near the passenger's side.

When Brand began walking around the vehicle to the passenger's side to retrieve the paper bag, Connery ran from the front of the vehicle to the passenger door and grabbed something from under the seat. Brand told Connery to leave the object alone and step back, but Connery then ran to the rear of the vehicle. Brand observed that Connery, with his back toward him, was crouched over and reaching toward the center of his stomach and back to his pockets. Brand also noticed something that appeared to be wooden stuck in between Connery's legs and thought that it could be a rifle or shotgun stock.

At this point, Brand drew his service revolver and told Connery to place the object on the ground and step away from it. Instead, Connery walked to the front of the vehicle and, according to Brand, "spun around," thrust the object up in the air, and then placed it on the hood of the car. The object was a wooden box. When Brand asked Connery what was in the box, he responded, "just some marijuana." Brand looked into the box and found a small amount of what appeared to be marijuana. Brand then placed Connery in the back seat "cage" of the patrol car.

With Connery secured in the patrol car, Brand returned to the front of Connery's vehicle and, because it was an extremely windy evening, began looking on the ground for evidence that might have been blown from the box when Connery thrust it in the air. Brand found what appeared to be marijuana on the ground as well as a baggie containing marijuana directly in front of the car. Brand also saw an orange container rolling on the highway, retrieved it, and discovered another baggie containing marijuana inside. Brand returned to the patrol car and, after advising Connery that the material he had found would be analyzed, that the information would be submitted to the state's attorney, and that charges might be filed, told Connery that he could leave.

Brand unlocked the back door of the patrol car for Connery. As Brand stepped back to let Connery out, he noticed two On December 16, 1987, Connery was charged with possession of marijuana in an amount weighing more than one-half ounce but less than one ounce, a class A misdemeanor. Connery moved to suppress the two statements he made to Brand implicating his ownership of the marijuana on the ground that he had not been advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). With regard to Connery's response when asked what was in the wooden box, the trial court concluded that "[b]ecause the patrolman had drawn his service revolver and was attempting to control the defendant with the threat imposed by that weapon," Connery was in "custody" at that point and the lack of Miranda warnings mandated suppression of this statement. However, the trial court refused to suppress Connery's response when asked about the baggies found on the ground near the patrol car. The trial court reasoned that because Connery had been told he would be allowed to leave and was in fact leaving as the statement was made, Connery "was not in custody at the time that statement was made and could not reasonably have believed he was." Connery's response to Brand's question as he exited the patrol car was admitted in evidence at trial. The jury returned a verdict of guilty.

                more baggies of what appeared to be marijuana lying on the ground beside the patrol car.  Brand asked Connery where those baggies had come from and Connery responded that he "threw it out."   Connery then left in his vehicle
                

Connery asserts on appeal that the trial court erred in refusing to suppress the statement he made as he was leaving the patrol car; that the evidence is insufficient to sustain the verdict; and that his right to a speedy trial was violated.

MIRANDA

We begin by noting the arguments the parties did not present either to the trial court on the suppression motion or to this court on appeal. The State did not assert that Connery's initial response when Brand, with gun drawn, asked him what was in the box, should have been admissible as falling within the public safety exception to the Miranda requirement. See New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984). ¹ Likewise, Connery did not assert that, regardless of whether he was "in custody" when he made the statement as he was leaving the patrol car, the statement was "tainted" by his earlier unwarned statement to Brand, and therefore inadmissible under the "fruit-of-the-poisonous-tree" doctrine. See Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985). ² Accordingly Miranda warnings are required only when a person is subject to "custodial interrogation." State v. Newnam, 409 N.W.2d 79, 82 (N.D.1987). "Custodial interrogation" means "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda, supra, 384 U.S. at 444, 86 S.Ct. at 1612. It has also been said that the safeguards prescribed by Miranda become applicable when "a suspect's freedom of action is curtailed to a 'degree associated with formal arrest.' " Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317, 335 (1984) [quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983) ]. To determine whether a suspect is "in custody" for Miranda purposes we look at how a reasonable person in the suspect's position would have understood the situation. State v. Pitman, 427 N.W.2d 337, 341 (N.D.1988) [citing Berkemer, supra ]. On appeal, we recognize the importance of the trial court's opportunity to assess the credibility of witnesses by according great deference to its decision in suppression matters. State v. Thordarson, 440 N.W.2d 510, 512 (N.D.1989); State v. Placek, 386 N.W.2d 36, 37 (N.D.1986).

we limit our discussion to the arguments presented by the parties, i.e., whether Connery was "in custody" at the time he told Brand that he had thrown out the baggies of marijuana found near the patrol car.

While roadside questioning of a motorist incident to a routine traffic stop does not constitute custodial interrogation [Pennsylvania v. Bruder, --- U.S. ----, 109 S.Ct. 205, 102 L.Ed.2d 172 (1988); Berkemer, supra ], the initial stop in this case became more than a routine traffic stop when Brand drew his service revolver, ordered Connery to place the object on the ground, and followed as Connery maneuvered his way around the vehicle. In drawing his weapon, Brand asserted his authority over Connery and gave a clear indication that the confrontation had escalated beyond a general investigation. ³ See Miley v. United States, 477 A.2d 720, 722-723 (D.C.Ct.App.1984), and cases cited therein. When viewed objectively, Connery's freedom of movement at that point may have been sufficiently curtailed that he could reasonably believe he was not free to leave. We cannot, however, say the same about the circumstances present when Connery admitted he had thrown out the baggies of marijuana.

Brand placed Connery in the back seat of the patrol car while he completed his search of the area. Brand returned to the patrol car and told Connery that the material he found would be analyzed, that the information would be forwarded to the state's attorney, and that he might be formally charged. Brand also told Connery that he would not be "taken in," but would be allowed to leave, and Connery was in the process of leaving the patrol car to return to his own vehicle when he made the incriminating statement. At no time during

this scenario was Connery placed under formal arrest. Although Brand may have had probable cause to place Connery under arrest, law enforcement officers are under no constitutional duty to halt the questioning of a suspect and place that person under arrest the moment they have the minimum evidence necessary to establish probable cause. See United States v. Hudgens, 798 F.2d 1234, 1238 (9th Cir.1986); see also Hoffa v. United States, 385 U.S. 293, 310, 87 S.Ct. 408, 417, 17 L.Ed.2d 374 (1966). The relevant inquiry is whether a reasonable person in Connery's position would have believed that he was free to leave. Having been told he could leave, and, in fact, having subsequently left the scene in his own vehicle, we conclude that Connery was not in custody or otherwise deprived of his freedom of action in any significant way at the time he made the challenged statement. Cf. Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977) [emphasizing that defendant did in fact leave police station without hindrance in finding no custodial interrogation]. Accordingly, we conclude that the trial court did not err in...