Thatsaphone v. Weber

• Decision Date: 31 March 1998
• Docket Number: No. 97-1871,97-1871
• Citation: 137 F.3d 1041
• Parties: Bounsouay THATSAPHONE, Petitioner--Appellee, v. Douglas WEBER, Warden, South Dakota State Penitentiary; Mark W. Barnett, Attorney General, Respondents--Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1041

137 F.3d 1041

Bounsouay THATSAPHONE, Petitioner--Appellee, v. Douglas WEBER, Warden, South Dakota State Penitentiary;

Mark W. Barnett, Attorney General, Respondents--Appellants.

No. 97-1871.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 20, 1997.

Decided Feb. 26, 1998.

Rehearing and Suggestion for Rehearing

En Banc Denied March 31, 1998.

Grant Gormley, Pierre, SD, argued (Mark Barnett, Attorney General, on the brief), for Respondents-Appellants.

Douglas E. Hoffman, Sioux Falls, SD, argued, for Petitioner-Appellee.

Before RICHARD S. ARNOLD, Chief Judge, LOKEN and HANSEN, Circuit Judges.

LOKEN, Circuit Judge.

Bounsouay Thatsaphone was convicted in state court of third degree rape for engaging in sex with a minor. After the Supreme Court of South Dakota affirmed, Thatsaphone petitioned for federal habeas corpus relief. The district court granted the writ, concluding that Thatsaphone because of his lack of English language skills had been subjected to in-custody interrogation in violation of his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The State appeals. We reverse.

In June 1993, Sioux Falls police detective Bruce Bailey investigated a complaint that twelve-year-old B.J.H. was the victim of a statutory rape. Bailey interviewed B.J.H., who identified Thatsaphone as the culprit. At Bailey's request, Thatsaphone came to the police station for an untaped twenty-two minute interview during which he made incriminating admissions. Thatsaphone was indicted for statutory rape and moved to suppress his statements to Detective Bailey.

Following an evidentiary hearing, the trial judge made the following findings of fact. Thatsaphone is a Laotian immigrant who had lived in the United States for seven years and had worked at a local meat packing plant for six years. When Detective Bailey contacted him by telephone, Thatsaphone said he both spoke and understood English. On June 24, Thatsaphone voluntarily came to be interviewed by Bailey at the police station, accompanied by a friend, Vic Souvannarath, who also spoke English and Laotian. Bailey excluded Souvannarath from the interview "for several reasons including that [Thatsaphone] told Bailey that he understood and spoke English pretty well, that [Thatsaphone] appeared to Bailey to speak and understand English pretty well, that the friend by virtue of his relationship to [Thatsaphone] did not possess the requisite impartiality necessary for an appropriate and accurate interview, and that such friend was not certified by 911 communications as a recognized interpreter of the Laotian language."

Before beginning the interview, Bailey asked Thatsaphone if he understood English. Thatsaphone explained that he had lived in the United States for seven years, had learned English at a local high school, and could speak and understand English pretty well. Bailey then told Thatsaphone that he was not under arrest and would not be placed under arrest that day, that the door to the interview room was closed for privacy but unlocked so he was free to leave, and that he could take restroom breaks at any time. Bailey asked Thatsaphone if he understood; Thatsaphone answered affirmatively. During the interview, Thatsaphone was anxious but not unusually so, Bailey did not use complicated terms or phrases, and Thatsaphone "answered Bailey's interview questions appropriately and by his answers appeared to understand such questions and the language thereof." Bailey did not administer Miranda warnings at any time. The interview lasted twenty-two minutes, following which Thatsaphone left the police station of his own accord. He was arrested the following day. At the evidentiary hearing, Thatsaphone

testified before the Court [on] his Motion to Suppress and an interpreter was present throughout such hearing. Almost all of the testimony at said hearing was an interchange directly between the respective attorneys asking questions in English and [Thatsaphone] speaking the answers in English. Neither attorney made any special effort to use simplistic words or phrases. [Thatsaphone] did not address the interpreter very often and ... only minor points of clarification were involved.... The English language was not a barrier to [Thatsaphone's] understanding of all that was occurring at the hearing or Bailey's interview.

Based upon these findings, the trial court denied Thatsaphone's motion to suppress. After his conviction was affirmed, Thatsaphone filed this petition for a writ of habeas corpus, arguing that his constitutional rights had been violated because the Bailey interview was custodial interrogation for Miranda purposes and his incriminating statements to Detective Bailey were involuntary. The district court on its own motion ordered an evidentiary hearing on the question of Thatsaphone's understanding of the English language. At that hearing, three prison tutors testified that Thatsaphone's English language skills were primitive when he was first incarcerated for this offense. Thatsaphone testified that he had understood almost nothing at the Bailey interview and the hearing on his motion to suppress. The magistrate judge recommended that the writ be granted on the ground that Thatsaphone's statements should have been suppressed as involuntary. Without reaching the voluntariness issue, the district court granted the writ, concluding that Bailey's interview was custodial interrogation, at which Miranda warnings were constitutionally required, because of Thatsaphone's "demonstrated limitations in understanding spoken English" and his "lack of familiarity with the American legal system." The State appeals, arguing that Thatsaphone was not in custody and his admissions were voluntary.

I. The Miranda Issue

"Miranda warnings are due only when a suspect interrogated by the police is 'in custody.' " Thompson v. Keohane, 516 U.S. 99, 102, 116 S.Ct. 457, 460, 133 L.Ed.2d 383 (1995). "In determining whether an individual was in custody, 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." Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 1528-29, 128 L.Ed.2d 293 (1994) (quotations omitted).

Absent the English language issue, it is clear that Bailey's twenty minute interview of Thatsaphone was not custodial interrogation. Indeed, the case would then be virtually on all fours with Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977). There, a police officer investigating a theft contacted defendant by phone, and they agreed to meet at the police office. The thirty-minute meeting took place in a room with the door closed. The officer told defendant he was not under arrest, but he was suspected of a burglary and his truthfulness might be considered by the prosecutor or judge. No Miranda warnings were given until after defendant confessed. The state supreme court reversed the conviction on the ground that the interrogation took place in a "coercive environment." The Supreme Court summarily reversed. Because defendant came to the brief meeting voluntarily, was not arrested, and left without police hindrance, the Court concluded he had not been subjected to custodial interrogation:

Any interview of one suspected of a crime by a police officer will have coercive aspects to it.... But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person's freedom as to render him "in custody." It was that sort of coercive environment to which Miranda by its terms was made applicable, and to which it is limited.

429 U.S. at 494, 97 S.Ct. at 714. Here, too, Thatsaphone came to the interview voluntarily, was told he was not under arrest, and left without hindrance after a short interview. At the outset, Detective Bailey advised that the interview was voluntary and that Thatsaphone was free to leave. The brief interview was less coercive in nature, and was held in a less coercive environment, than other interrogations we have held to be non-custodial for Miranda purposes, such as the station-house questioning in Feltrop v. Bowersox, 91 F.3d 1178 (8th Cir.1996), cert denied, --- U.S. ----, 117 S.Ct. 1849, 137 L.Ed.2d 1051 (1997), and in Jenner v. Smith, 982 F.2d 329 (8th Cir.), cert. denied, 510 U.S. 822, 114 S.Ct. 81, 126 L.Ed.2d 49 (1993).

That brings us to the central issue in the case, Thatsaphone's understanding of the English language. Before discussing its merits, we must frame that issue and place it in its proper procedural context. We agree with the district court that a suspect's language skills may be relevant to the "in custody" issue. Cf. United States v. Ceballos, 812 F.2d 42, 48 n. 4 (2d Cir.1987). But the question is not whether Thatsaphone subjectively believed that he was in custody because he did not understand Detective Bailey's cautions to the contrary. The district court erred in treating this as a subjective issue, misreading a passage in United States v. Griffin, 922 F.2d 1343, 1349 (8th Cir.1990), that added a misleading reference to "subjective belief" to a quote from Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). Berkemer held that the inquiry is objective--"the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation." 468 U.S. at 442, 104 S.Ct. at 3151. Any doubt on this question was laid to rest in Stansbury v. California, where the Court stated, "the initial determination of custody depends on the objective...