State v. Smith

• Decision Date: 20 March 1998
• Docket Number: CR-97-0169
• Citation: 715 So.2d 925
• Parties: STATE v. Shana Brooke SMITH.
• Court: Alabama Court of Criminal Appeals

Page 925

715 So.2d 925

STATE v. Shana Brooke SMITH.

CR-97-0169.

Court of Criminal Appeals of Alabama.

March 20, 1998.

Bill Pryor, atty. gen., and J. Thomas Leverette, asst. atty. gen., for appellant.

Teresa Camille Harris, Montgomery; and Paul R. Cooper, Montgomery, for appellee.

BROWN, Judge.

Shana Brooke Smith was indicted for theft of property in the second degree, a violation of § 13A-8-4, Ala.Code 1975, and for illegal possession of, or fraudulent use of, a credit card, a violation of § 13A-9-14, Ala.Code 1975. Smith filed a motion to suppress evidence of statements she made to Detective R.E. Parker at the Montgomery police station on February 18, 1997, and at her place of employment on March 28, 1997. Smith contended that these statements were obtained in violation of her Miranda ¹ rights. The circuit court granted Smith's motion to suppress the statement she gave on February 18, 1997, and the state appeals from that order. ²

The state contends that the trial court erred in suppressing Smith's statement because, it argues, she was not in custody when she gave her statement. We agree.

The following evidence was presented at the suppression hearing:

Anita Beasley Moore testified that on February 4, 1997, her wallet, which contained various credit cards and currency, was stolen from her office. The following day, Ms. Moore called the companies that had issued her credit cards to report that the theft of her cards. During a telephone call with one of the companies, she was informed by a company representative that the card they had issued to her had been used twice on the evening of February 4. Ms. Moore was further informed by the representative that the card had been used at a gasoline service station in the Capitol Heights area of Montgomery. Ms. Moore, through her own investigative efforts, located the service station where the card had been used and spoke to the clerk who was on duty on the evening of February 4. She presented a group photograph of several of her coworkers, one of whom was Shana Smith, to the clerk because she suspected that a coworker had stolen her wallet. The clerk identified Smith as the individual who had used Ms. Moore's credit card. Ms. Moore provided this information to Detective R.E. Parker.

Detective Parker testified that upon receiving this information from Ms. Moore, he telephoned Smith and asked her if she would come to the police station to answer questions about the theft. Smith agreed to do so, and on February 18, Smith drove to the police station in her vehicle and met with Detective Parker. She again told Detective Parker that she was willing to answer any questions. Detective Parker testified that he did not handcuff or detain Smith in any way, and that she was free to leave at any time. The interrogation lasted approximately 19 minutes, after which Smith left. Detective Parker did not advise Smith of her Miranda rights during this interrogation.

Smith did not testify at the suppression hearing.

The trial court entered an order granting Smith's motion to suppress her February 18 statement. Although the trial court made no findings of fact or conclusions of law in its order, it was clear from the suppression hearing that the issue before the court was whether a Miranda warning was required before Smith was questioned on February 18.

A Miranda warning is not required unless the person the police are questioning is under arrest or is subjected to custodial interrogation. "By custodial interrogation, we mean 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, 16 L.Ed.2d at 706. Miranda is not implicated when a police interrogation is merely investigative rather than accusative; thus, a distinction must be made between general police interrogation and custodial interrogation. The court must examine the surrounding circumstances of each case before making this distinction.

" 'The United States Supreme Court in California v. Beheler, 463 U.S. 1121, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) articulated "the standard by which 'custody' is to be judged." [,] Davis [v. Allsbrooks, 778 F.2d 168,], 171 [ (4th Cir.1985) ]. In its opinion, the Supreme Court stated that "although the circumstances of each case must certainly influence a determination of whether a suspect is 'in custody' for purposes of receiving Miranda protection, the ultimate inquiry is simply whether there is a 'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." California v. Beheler, supra, 463 U.S. at 1125, 103 S.Ct. at 3519-20, 77 L.Ed.2d 1275 (quoting [Oregon v.] Mathiason, 429 U.S. at 495, 97 S.Ct. at 714 [50 L.Ed.2d 714 (1977) ] ). See also Primm [v. State, 473 So.2d 1149] at 1158 [ (Ala.Cr.App.1985) ].

" 'A determination of "custody" is not based on "the subjective evaluation of the situation by the defendant or the police officers." Davis, supra at 171. Where there has not been a formal arrest (as here), an objective test is used to determine whether the suspect's freedom of action has been restricted by the police in any significant manner. Davis, supra at 171; [ (United States v.] Miller, [587 F.Supp. 1296] at 1299 [ (W.D.Pa.1984) ]; Warrick [v. State, 460 So.2d 320 (Ala.Cr.App.1984) ]; Hall [v. State, 399 So.2d 348, 351 (Ala.Cr.App.1981) ]. "The only relevant inquiry is how a reasonable man in the suspect's position would have understood his position." United States v. Jonas, 786 F.2d 1019, 1022 (11th Cir.1986)(quoting Berkemer v. McCarty, 468 U.S. 420 [442-44], 104 S.Ct. 3138, 3152, 82 L.Ed.2d 317 (1984)).' "

Smolder v. State, 671 So.2d 757, 760 (Ala.Cr.App.1995) (quoting Hooks v. State, 534 So.2d 329, 347-48 (Ala.Cr.App.1987)).

"In order to decide if a suspect is 'in custody,' the court, looking at the totality of the circumstances, must find that a reasonable person in the accused's position would believe that he or she is not free to leave. Landreth [v. State ], 600 So.2d at 444 [ (Ala.Cr.App.1992) ]."

" 'In deciding whether the questioning of a suspect is "custodial" the following factors should be considered:

" ' "whether the suspect was questioned in familiar or neutral surroundings, the number of law enforcement officers present at the scene, the degree of physical restraint of the suspect, the duration and character of the questioning, how the suspect got to the place of questioning, the language used to summon the suspect, the extent to which the suspect is confronted with evidence of guilt, and the degree of pressure applied to detain the suspect." '

600 So.2d at 444, quoting P.S. v. State, 565 So.2d 1209, 1214 (Ala.Cr.App.1990)."

Johnson v. State, 673 So.2d 796, 798 (Ala.Cr.App.1995).

The facts in this case are very similar to the facts presented in State v. Jude, 686 So.2d 528 (Ala.Cr.App.), ...