State v. Wintker

• Decision Date: 03 October 1996
• Docket Number: No. A96A1568,A96A1568
• Citation: 476 S.E.2d 835,223 Ga.App. 65
• Parties: The STATE v. WINTKER.
• Court: Georgia Court of Appeals

Page 835

476 S.E.2d 835

223 Ga.App. 65

The STATE v. WINTKER.

No. A96A1568.

Court of Appeals of Georgia.

Oct. 3, 1996.

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Beth T. Golub, Assistant District Attorneys, for appellant.

Jack J. Menendez, Monzer J. Mansour, for appellee.

BEASLEY, Chief Judge.

The State appeals the trial court's order suppressing a statement made by Wintker to police for failure to give "Miranda warnings."

In reviewing such a ruling, factual and credibility determinations will not be disturbed on appeal unless clearly erroneous. Pless v. State, 218 Ga.App. 603(1), 462 S.E.2d 472 (1995); State v. Louis, 185 Ga.App. 529, 530, 364 S.E.2d 896 (1988). Accordingly, the record shows that Davis was stopped for driving 81 mph in a 55 mph zone. The officer discovered Davis's license was suspended and asked him to exit the car. He was arrested and placed in a patrol car after a pat-down disclosed a drug pipe with marijuana residue.

The officer asked the three passengers for the identity of the car owner, and 18-year-old Abigail Wintker responded that it was her parents' car. When asked for permission to search the car, Wintker refused, and the officer called for a drug dog. Wintker was placed in the back of a patrol car with Davis, the arrested driver, but was told she was not under arrest. The doors of the patrol car were locked and could not be opened from the inside. The other two passengers were allowed to stand near the car while the dog sniffed drugs. The dog "alerted" to all four vehicle doors, so several officers thoroughly searched the interior and found both marijuana and cocaine in a child's yellow suitcase. Other contents revealed that the suitcase belonged to a woman. The officer first asked the woman passenger standing outside if it was hers, and she denied ownership. The officer then asked Wintker, who was still in the back seat of the patrol car and was the only other woman present, if she owned the suitcase. She admitted she did and was arrested for violation of the Georgia Controlled Substances Act, OCGA § 16-13-30. She then asked the officer why she was being arrested, and he informed her that the suitcase contained drugs. She denied knowledge of any such drugs.

After indictment, Wintker moved to suppress all evidence seized from the vehicle on the basis that it was obtained through an illegal search and seizure. She also moved to suppress her statement that she owned the suitcase on the basis that she was in custody and not advised of her Miranda rights before making the statement. The court denied the motion as to the search and seizure, finding the officers had probable cause and reasonable suspicion to search the vehicle, but suppressed Wintker's statement, finding that Wintker was in custody when police questioned her without first advising her of her constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

If the police take a suspect into custody and ask questions without informing the person of his Miranda rights, the responses cannot be introduced into evidence to establish his guilt. Berkemer v. McCarty, 468 U.S. 420, 429(II), 104 S.Ct. 3138, 3144-3145, 82 L.Ed.2d 317 (1984). The United States Supreme Court defined "custodial interrogation" as "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 at 444, 86 S.Ct. at 1612; see Shy v. State, 234 Ga. 816, 819(I), 218 S.E.2d 599 (1975). Only statements made by a suspect while in custody and under police interrogation give rise to the issue of Miranda warnings. Tibbs v. State, 207 Ga.App. 273(1), 427 S.E.2d 603 (1993).

In determining whether a suspect was in custody for Miranda purposes, "a court must examine all of the circumstances surrounding the interrogation, but 'the ultimate inquiry is simply whether there (was) a "formal arrest or restraint on freedom of movement" of the degree associated with a formal arrest.' [Cits.]" Stansbury v. California, 511 U.S. 318(II), 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994). The "ultimate inquiry" is a mixed question of law and fact.

Thompson v. Keohane, 516 U.S. ---- (II)(B), 116 S.Ct. 457, 133 L.Ed.2d 383 (1995), recently reaffirmed that in making this determination, the court must first ascertain the circumstances surrounding the interrogation. This is a purely factual determination and receives deferential review on appeal. Second, given those circumstances, the court then must determine if a reasonable person would have believed he or she was not at liberty to terminate the interrogation and leave. This inquiry "calls for application of the controlling legal standard to the historical facts." Id.

The specific issue in the Thompson case was whether a state court's ruling that a defendant was not "in custody" for Miranda purposes qualifies as a "fact" determination entitled to a presumption of correctness under 28 USC § 2254 (d), which provides that, in a federal habeas proceeding instituted by a person in custody pursuant to a state court judgment, the state court's determination of "a factual issue" ordinarily "shall be presumed to be correct." The Court's reasoning applies equally to our review of the trial court's findings as to whether a defendant was subjected to custodial interrogation and thus entitled to the protections afforded by Miranda. The trial court's findings on the disputed facts are not clearly erroneous. We review the trial court's "application of the controlling legal standard" to these facts de novo.

A reasonable person test, rather than the four-factor test applied in earlier decisions, applies to determine whether an individual not formally arrested is nevertheless in custody for Miranda purposes. ¹ This occurs if, but only if, a reasonable person in the suspect's position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest. A "reasonable person" has been defined as "one 'neither guilty of criminal conduct and thus overly apprehensive nor insensitive to the seriousness of the circumstances.' " United States v. Corral-Franco, 848 F.2d 536, 540 (5th Cir.1988), quoting United States v. Bengivenga, 845 F.2d 593 (5th Cir.1988), cert. denied, Bengivenga v. United States, 488 U.S. 924, 109 S.Ct. 306, 102 L.Ed.2d 325 (1988).

The State contends Wintker was not in custody and the fact she had been placed in the back seat of a locked patrol car when the police officer asked if she owned the suitcase should not be determinative. Rather, the State argues, we should find she was merely temporarily detained while the investigation was completed.

Police officers making an ordinary traffic stop or arriving on the scene of suspected criminal activity may conduct a "general on-the-scene investigation," including making inquiries solely to determine whether there currently is any danger to them or other persons. Tibbs, supra at 273(1), 427 S.E.2d 603; Aldridge v. State, 247 Ga. 142, 144(2), 274 S.E.2d 525 (1981). They may even temporarily detain anyone who tries to leave before the preliminary investigation is completed. Such inquiries and detentions do not trigger the requirements of Miranda, unless the questioning is "aimed at obtaining information to establish a suspect's guilt." Id.; Smith v. State, 264 Ga. 857, 859(3), 452 S.E.2d 494 (1995); State v. Overby, 249 Ga. 341, 342, 290 S.E.2d 464 (1982).

The State reminds us that "this court has found that placing a person in the rear seat of a patrol car which has no interior door handles and from which there is no exit without the officer's opening the door is not an arrest, but a justifiable momentary detention which is reasonable" in circumstances where police are securing a scene for safety reasons and conducting an investigatory stop. Pless, supra at 605(2), 462 S.E.2d 472 (referring to Goodman v. State, 210 Ga.App. 369, 370, 436 S.E.2d 85 (1993)). See also State v. Corbett, 205 Ga.App. 554, 556, 423 S.E.2d 38 (1992); Arena v. State, 194 Ga.App. 883, 885(1), 392 S.E.2d 264 (1990); Alexander v. State, 166 Ga.App. 233, 235(2), 303 S.E.2d 773 (1983).

Although decisions relied on by the State are factually similar to this case, they turn on a different yet related analysis, that is, whether, in detaining a suspect in a locked patrol car, a legal "Terry-type" seizure (Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ) had occurred under the Fourth Amendment. See, e.g., Goodman, supra at 370, 436 S.E.2d 85; Corbett, supra at 555-556, 423 S.E.2d 38. A policeman who lacks probable cause but whose "observations lead him reasonably to suspect" that a particular person has committed, is committing, or is about to commit a crime, may detain that person briefly in order to "investigate the circumstances that provoke suspicion," without violating the Fourth Amendment. (Citation and punctuation omitted.) Berkemer, supra at 439(III), 104 S.Ct. at 3150.

The cited cases do not address the issue of Miranda's procedural safeguards aimed at protecting a suspect's Fifth Amendment rights against self-incrimination. Resolving whether a suspect was in custody for Miranda purposes and whether a suspect was legally seized during a Terry stop require somewhat different analyses. In Terry-type investigative detentions, the suspect is detained, but Miranda is not always triggered. Shy, supra at 820(I), 218 S.E.2d 599. If a motorist detained for a routine traffic stop is thereafter subjected to treatment by police that renders him "in custody," "he will be entitled to the full panoply of protections prescribed by Miranda." Berkemer, supra at 440(III), 104 S.Ct. at 3150.

The State's emphasis on the lack of arrest is also misplaced, since "in custody" for Miranda purposes is broader than "under arrest." See generally Wilson v. State, ...