State v. Morgan, No. 01-2148-CR.

• Court: Court of Appeals of Wisconsin
• Writing for the Court: Before Vergeront, P.J., Dykman and Deininger, JJ.
• Citation: 648 N.W.2d 23,254 Wis.2d 602,2002 WI App 124
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Zan MORGAN, Defendant-Appellant.
• Decision Date: 04 April 2002
• Docket Number: No. 01-2148-CR.

254 Wis.2d 602
2002 WI App 124
648 N.W.2d 23

STATE of Wisconsin, Plaintiff-Respondent,
v.
Zan MORGAN, Defendant-Appellant

No. 01-2148-CR.

Court of Appeals of Wisconsin.

Submitted on briefs February 12, 2002.

Decided April 4, 2002.

254 Wis.2d 607

On behalf of the defendant-appellant, the cause was submitted on the briefs of Tim Provis, Madison

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Francisco Vasquez, assistant attorney general, and James E. Doyle, attorney general.

Before Vergeront, P.J., Dykman and Deininger, JJ.

¶ 1. VERGERONT, P.J.

Zan Morgan appeals a judgment of conviction for possession of THC, second offense, in violation of WIS. STAT. § 961.41(3g)(e) (1999-2000).¹ Morgan contends the trial court erred in denying his motion to suppress an inculpatory statement he made in response to a police officer's question without being given Miranda warnings.² We conclude

254 Wis.2d 608

Morgan was in custody when questioned by the officer and therefore his statement must be suppressed. Accordingly, we reverse and remand for a new trial

BACKGROUND

¶ 2. At the hearing on Morgan's motion to suppress, City of Madison Police Officer Henry Whyte testified as follows. On February 18, 1999, he went to an apartment building to investigate because a bag of marijuana was found in the freezer of an apartment that the tenant had vacated and intended to sublet. Officer Whyte met with a building security guard, Shawn Smith, to investigate the incident; Smith was also a part-time police officer. Both were armed. Officer Whyte was in plain clothes with his badge worn around his neck.³

¶ 3. Officer Whyte obtained permission from the tenant to search the apartment. He and Smith entered the apartment, locking the door after them. Officer Whyte found a bag of marijuana in the freezer and a duffel bag with crack cocaine and a handgun in a closet. Officer Whyte called his sergeant to tell him what he found and the sergeant said he would be right there. Meanwhile, Smith alerted Officer Whyte to the fact that someone was trying to enter the apartment with a key. Both Officer Whyte and Smith drew their guns. As soon as the person, later identified as Morgan, entered the apartment, Whyte identified himself as a police officer and told Morgan to stop.

¶ 4. Morgan ran from the apartment and Officer Whyte chased him, yelling for him to stop. When Officer Whyte caught up to Morgan, Morgan was attempting to get into the driver's seat of a car. Another adult male

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was in the front passenger seat, and Officer Whyte thought there was a third adult male in the back seat, but that person was a child. Officer Whyte grabbed hold of Morgan and brought him to the trunk area of the car. Morgan did not offer any physical resistance after that and was cooperative. Officer Whyte handcuffed Morgan with his hands behind him, frisked him for weapons, found none, and sat him on the curb to the rear of the vehicle. Officer Whyte told Smith to watch Morgan, and he took the other adult, Dezel Jones, out of the car, put handcuffs on him, and sat him on the curb

¶ 5. A police squad car arrived and Officer Whyte put both Morgan and Jones in the back of that squad car, both still handcuffed. Officer Whyte obtained Morgan's consent to search the car he had been trying to enter. On searching the car, the officer discovered a "blunt" in the car's ashtray.⁴ By that time Officer Whyte's sergeant had arrived, as well as another officer driving another police squad car into which Officer Whyte transferred Jones.

¶ 6. Officer Whyte asked Morgan, who was still handcuffed and sitting in the back of the squad car, what he knew about the blunt in the ashtray of the vehicle.⁵ According to Officer Whyte, Morgan responded that he and Jones were smoking the blunt before they got to the apartment that night. Before asking this question, Officer Whyte did not tell Morgan that he was under arrest, nor did he read to Morgan the Miranda warnings. At the time Officer Whyte asked

254 Wis.2d 610

this question, he was conducting an investigation to determine what, if anything, Morgan had to do with the drugs and gun found in the apartment, as well as who owned or possessed the blunt found in the car. Officer Whyte agreed that Morgan "couldn't go anywhere" while seated in the back of the squad car.

¶ 7. The trial court denied Morgan's motion to suppress. After summarizing Officer Whyte's testimony, the court concluded that the officer had reasonable suspicion that a crime had been or was to be committed, justifying Morgan's detention under Terry v. Ohio, 392 U.S. 1 (1968). The court next determined that Officer Whyte's decision to place Morgan and Jones in handcuffs was reasonable. His decision to put them in squad cars was also reasonable, the court determined, since the events took place in the middle of winter. The court found that Officer Whyte separated Morgan and Jones once another police car arrived so that he could hold the situation stable and do further investigation. The court concluded that a reasonable person in Morgan's position would have believed that he was being temporarily detained, and that the detention was reasonable and understandable given the circumstances facing the officer, the season of the year, and Morgan's conduct. Therefore, the trial court ruled, Miranda warnings were not necessary.⁶

¶ 8. At trial, Officer Whyte testified that, in response to his question about the blunt, Morgan told him "we had been smoking it before." Morgan denied smoking the blunt. Jones testified that the blunt was his and he, but not Morgan, smoked it.

254 Wis.2d 611

DISCUSSION

¶ 9. Morgan argues that the trial court erred in concluding that Miranda warnings were not necessary because, he asserts, he was "in custody" for Miranda purposes when Officer Whyte asked him about the blunt.

[1-3]

¶ 10. The prosecution may not use a defendant's statements stemming from custodial interrogation unless the defendant has been given the requisite warnings. Miranda v. Arizona, 384 U.S. 436, 444 (1966). In Miranda, the Court defined custodial interrogation as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his [or her] freedom of action in any significant way."⁷ Id. Subsequently, the Court held that the Miranda safeguards attach when a "suspect's freedom

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of action is curtailed to a `degree associated with [a] formal arrest.'" Berkemer v. McCarty, 468 U.S. 420, 440 (1984) (quoting California v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam)). The relevant inquiry is how a reasonable person in the suspect's situation would understand the situation. Berkemer, 468 U.S. at 442.

[4]

¶ 11. In reviewing the trial court's decision, we accept that court's findings of historical fact unless they are clearly erroneous; however, whether a person is "in custody" for Miranda purposes is a question of law, which we review de novo based on the facts as found by the trial court. State v. Mosher, 221 Wis. 2d 203, 211, 584 N.W.2d 553 (Ct. App. 1998).

[5,6]

¶ 12. In determining whether an individual is "in custody" for purposes of Miranda warnings, we consider the totality of the circumstances, including such factors as: the defendant's freedom to leave; the purpose, place, and length of the interrogation; and the degree of restraint. State v. Gruen, 218 Wis. 2d 581, 594, 582 N.W.2d 728 (Ct. App. 1998). When considering the degree of restraint, we consider: whether the suspect is handcuffed, whether a weapon is drawn, whether a frisk is performed, the manner in which the suspect is

254 Wis.2d 613

restrained, whether the suspect is moved to another location, whether questioning took place in a police vehicle, and the number of officers involved. Id. at 594-96.

¶ 13. In this case the dispute between the parties in part centers on the correct legal test to be applied for Miranda purposes when an individual has been detained in a Terry stop, and we begin by addressing this issue. The State asserts that the inquiry under Miranda involves two steps, the first of which is a determination of whether the defendant was validly detained pursuant to Terry. The State also asserts that the "question of whether a person was in custody for [F]ifth [A]mendment purposes is handled in essentially the same fashion as the question of whether a person has been arrested for [F]ourth [A]mendment purposes." We acknowledge that the analysis required by the Fourth Amendment and the analysis required by the Fifth Amendment are not always clearly distinguished in the case law.⁸ However, the analyses are not the same.

254 Wis.2d 614

[7-10]

¶ 14. The Fourth Amendment prohibition of unreasonable searches and seizures protects the personal

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liberty interests of freedom of movement and freedom from governmental intrusion. See Schneckloth v. Bustamonte, 412 U.S. 218, 242 (1973); Terry, 392 U.S. at 16. In order to protect against unreasonable seizures, the Fourth Amendment requires, with certain narrowly defined exceptions, that formal arrests, or seizures that resemble formal arrests, be supported by probable cause to believe that the individual has committed a crime. See Michigan v. Summers, 452 U.S. 692, 699-700 (1981). Recognizing the need for law enforcement to temporarily detain persons to investigate possible

254 Wis.2d 616

criminal activity when there is not probable cause, the Court in Terry, 392 U.S. at 16-22, held that in certain circumstances temporary investigative stops are reasonable even though they are seizures and even though the officer does not have probable cause.⁹ Under the Fourth Amendment the test is ultimately whether the officer's action was justified at its inception, and whether the intrusiveness of the particular seizure is reasonable given the totality of the circumstances; and reasonableness is determined by balancing the governmental...