Argueta v. State

THIEME, Judge. The Circuit Court for Montgomery County convicted appellant Jose E. Argueta for carrying a concealed dangerous or deadly weapon. The court subsequently imposed an eleven-month sentence, which was suspended in favor of eleven months of supervised probation. Appellant appeals his conviction and raises the following issues for our review: 1.

Whether the trial court erred in failing to suppress the Defendant’s statement. 2. Whether there was sufficient evidence to support a conviction of the Defendant for violating Article 27, § 36. We answer “yes” to question 1 and therefore reverse appellant’s conviction; we find it unnecessary to consider question 2. Facts Officer Edwardo Lagos of the Montgomery County Police Department spotted appellant, along with a group of four other people, on the sidewalk in the area of Sage and Cinnamon Drive in Montgomery County.

Three of the subjects had their hands in their pockets; the officer interpreted this behavior as a gang sign. As he approached the group, the officer noticed a bulge in appellant’s front waistband. He asked appellant whether he possessed any drugs or weapons. After appellant answered that he did not, Officer Lagos received consent from appellant to search his person.

At that time, a second police officer arrived. Officer Lagos stood behind appellant and ordered him to spread his legs and raise his hands over his head. The officer patted down appellant and pulled out a fourteen-inch knife ²⁷⁷ from appellant’s waistband. Officer Lagos then called out the other officer’s name in order to make him aware of the discovery, as the other officer was still with the other subjects at this time.

Approximately thirty seconds after the discovery of the knife, the officer asked appellant what he was doing with the knife. Appellant replied that he was carrying the knife in order to scare another group of men that had been standing nearby. Appellant was then instructed to sit down while Officer Lagos tried to find out whether the other subjects possessed any weapons. Appellant had not been given his Miranda warnings before he gave his statement concerning why he had the knife.

Appellant was handcuffed after his response to the officer’s question; this was approximately one minute after the discovery of the knife. Officer Lagos testified that appellant had been arrested for possession of the knife and conceded that appellant was not free to go as soon as he saw the knife. The officer further testified that, although appellant was not free to go after the knife was discovered, the question pertaining to why appellant had the knife was merely part of the officer’s investigation, and appellant was not formally arrested until he was placed in handcuffs and ordered to sit down. Appellant argues that he was subjected to custodial interrogation but not advised of his privilege against self-incrimination or his right to counsel before being asked why he had the knife.

Therefore, appellant contends, the trial court erred in denying his motion to suppress his comment to Officer Lagos. We agree. (a) Standard of Review In reviewing the denial of a motion to suppress, this Court looks to the facts adduced at the suppression hearing that are most favorable to the State as the prevailing party. In Re: Patrick Y, 124 Md.App. 604, 608-09 , 723 A.2d 523 (1999). “In determining whether the denial of a motion to suppress ... is correct, the appellate court looks to the record ²⁷⁸ of the suppression hearing, and does not consider the record of the trial itself.” Trusty v. State, 308 Md. 658, 670 , 521 A.2d 749 (1987).

In considering that evidence, great deference is extended to the fact-finding of the suppression hearing judge with respect to weighing credibility and determining first-level facts. When conflicting evidence is presented, this Court accepts the facts found by the hearing judge, unless clearly erroneous. See Riddick v. State, 319 Md. 180, 183 , 571 A.2d 1239 (1990); Perkins v. State, 83 Md.App. 341, 346-47 , 574 A.2d 356 (1990). “When the question is whether a constitutional right ... has been violated, we make our own independent constitutional appraisal. We make the appraisal by reviewing the law and applying it to the peculiar facts of the particular case.” Riddick, 319 Md. at 183 , 571 A.2d 1239 ; see also Gamble v. State, 318 Md. 120, 128 , 567 A.2d 95 (1989); State v. Wilson, 279 Md. 189, 202 , 367 A.2d 1223 (1977); West v. State, 124 Md.App. 147, 155 , 720 A.2d 1253 (1998); Walker v. State, 12 Md.App. 684, 695, 280 A.2d 260 (1971).

Appellant argues that his statement to the officer as to why he possessed the knife was the only evidence at trial relevant to his intent to possess the knife. He claims that his Miranda rights were violated because, at the time he gave the statement, he was interrogated and deprived of his freedom to leave, without having been advised of his Miranda rights. 1 In Miranda v. Arizona, 384 U.S. 436, 478-79 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), the United States Supreme Court stated: To summarize, we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopar ²⁷⁹ dized. Procedural safeguards must be employed to protect the privilege, and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.

Opportunity to exercise these rights must be afforded to him throughout the interrogation.... Id. “The progeny of Miranda has recognized that these warnings have no constitutional basis, but that they are prophylactic rules created by judicial decision to safeguard the privilege against self-incrimination.” McAvoy v. State, 70 Md.App. 661, 666 , 523 A.2d 618 (1987) (citations omitted). “Thus, preliminary to any decision to exclude evidence because it was gathered from the criminal suspect who was not advised of his Miranda rights is a determination of whether that evidence constitutes a statement stemming from custodial interrogation.” Id. at 666-67, 528 A.2d 618 . According to Miranda , custodial interrogation has occurred if and when one is in police custody and is subjected to express questioning or its functional equivalent. Miranda, 384 U.S. 436 , 86 S.Ct. 1602 .

A conviction must be reversed when a statement is admitted at trial in violation of Miranda. See Mulligan v. State, 10 Md.App. 429, 432 , 271 A.2d 385 (1970) (“[A]ny statement obtained in violation of the procedural standards enunciated in Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 is per se to be excluded and the State is not afforded an opportunity to show that its admission was harmless error.”). Miranda’s concern was with an interrogation environment so oppressive as to give rise to a presumption of compulsion in the context of the Fifth Amendment privilege ²⁸⁰ against “compelled” self-incrimination. The concern was with the Kafkaesque trappings of the “third degree.” The drum-like refrain of the Miranda analysis repeated and reechoed the theme of “incommunicado interrogation” in a “police-dominated atmosphere.” Jones v. State, 132 Md.App. 657, 667 , 753 A.2d 587 (2000).

A scanning of Miranda makes its thrust preeminently clear.... “The defendant was questioned by police officers, detectives, or a prosecuting attorney in a room in which he was cut off from the outside world.” Miranda pointed out that all of the four cases being dealt with in that umbrella opinion “share salient features—incommunicado interrogation of individuals in a police-dominated atmosphere ...” It pointed out that the major danger of the “in-custody interrogation” is that its incommunicado character obscures a later judicial determination of what really transpired. “An understanding of the nature and setting of this in-custody interrogation is essential to our decisions today ...” Id. at 668 , 753 A.2d 587 (citations omitted). The constitutional distillate of Miranda is that self-incrimination flowing from a custodial interrogation is, ipso facto, compelled self-incrimination because of the inherent coercion—the inherent compulsion—of the custodial interrogation environment. In the custodial interrogation situation, therefore, the constitutionally damning element of compulsion can only be extirpated by the elaborate prophylactic process of warning and waiver prescribed by Miranda as the required compulsion antidote. Absent the compulsion, there is no need for the antidote.

Id. at 669, 753 A.2d 587 . We shall determine whether appellant made his statement at a time when his Miranda safeguards were indeed applicable. ²⁸¹ Custody T5] Appellant argues that he was in custody at the time he made this statement, and cites several cases in support of this contention. We agree. Officer Lagos testified as follows: Q. Did the defendant have his hands on his head?

A. Yes, Sir. Q. Were his feet spread? A. Yes. Q. Officer, the defendant was not free to leave when you found the knife in his possession, right?

A. Right When officer Lagos patted down appellant and pulled out a fourteen-inch knife from appellant’s waistband, he called out the other officer’s name in order to make him aware of the discovery: Q. Okay. And Officer Curt was to your left I believe you testified? A. Yes Q. Approximately how many feet? A. Within 10 feet.

Appellant states that “ft]he police conduct in this case clearly would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business,” and cites Orozco v. Texas, 394 U.S. 324, 327 , 89 S.Ct. 1095 , 22 L.Ed.2d 311 (1969), in support of this contention. In Orozco , the suspect was in custody even though he was in his own bedroom, because he was under arrest and not free to leave. The Supreme Court, re-visiting Miranda , stated: “The Miranda opinion declared that the warnings were required when the person being interrogated was ‘in custody at the station or otherwise deprived of his freedom of action in any significant way.’” Id. (quoting Miranda, 384 U.S. at 477 , 86 S.Ct. 1602 ) (emphasis added). ²⁸² A determination of whether custodial questioning has occurred requires, in the first instance, a finding that the defendant was in “custody,” as that term is defined in the Miranda opinion.

This is by far the most litigated aspect of Miranda , and an issue on which the Supreme Court has provided little guidance. Compare Oregon v. Mathiason, supra, 429 U.S. [492] at 494-95[, 97 S.Ct. 711 , 50 L.Ed.2d 714 (1977) ] (parolee questioned at police station not in custody because he was free to leave) and Beckwith v. United States, supra, 425 U.S. [341] at 347[, 96 S.Ct. 1612 , 48 L.Ed.2d 1 (1976)] (suspect in tax fraud investigation questioned at a private home where he occasionally stayed was not in custody) with Orozco v. Texas, 394 U.S. 324, 327 , 89 S.Ct. 1095 , 22 L.Ed.2d 311 (1969) (suspect questioned in his bedroom was under arrest, not free to leave, and thus in custody) and Mathis v. United States, supra, 391 U.S. [1] at 4-5[, 88 S.Ct. 1503 , 20 L.Ed.2d 381 (1968) ] (suspect questioned about tax fraud while imprisoned on another charge was in custody). Whitfield v. State, 287 Md. 124, 137-38 , 411 A.2d 415 (1980). 2 Deciding when a person has been significantly deprived of his freedom of action so as to be in custody within the meaning of Miranda depends on the factual setting surrounding the interrogation in each case. This issue has frequently been confronted by the courts of this country, ²⁸³ and a variety of tests have been developed as an aid for making that decision.

Id. at 139, 411 A.2d 415 (citations omitted). The majority of courts that have explicitly addressed this question, however, have adopted an objective reasonable person approach to determining custody. Id. (citations omitted). “ * * * [Cjustody occurs if a suspect is led to believe, as a reasonable person, that he is being deprived or restricted of his freedom of action or movement under pressures of official authority. * * * [Tjhe custody requirement of Miranda does not depend on the subjective intent of the law enforcement officer-interrogator but upon whether the suspect is physically deprived of his freedom of action in any significant way or is placed in a situation in which he reasonably believes that his freedom of action or movement is restricted by such interrogation. * * * ” Myers v. State, 3 Md.App. 534, 537 , 240 A.2d 288 (1968) (quoting People v. Hazel, 252 Cal.App.2d 412 , 60 Cal.Rptr. 437 (1967)).

Interrogation Once it is established that the appellant is in custody, the next consideration is whether he was interrogated. Appellant contends that he was subjected to police interrogation at the time he explained why he was carrying the knife. In Rhode Island v. Innis, 446 U.S. 291, 301 , 100 S.Ct. 1682 , 64 L.Ed.2d 297 (1980), the Supreme Court stated: “[Tjhe term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should knoiv are reasonably likely to elicit an incriminating response from the suspect.” Id. (footnote omitted) (emphasis added).

Officer Lagos testified: I said what are you doing with this is exactly what I said,.... ²⁸⁴ Appellant asserts that Officer Lagos’s question was designed to elicit an incriminating response, and, consequently, is a form of interrogation that cannot be characterized as routine questioning. We agree, and take this assertion one step further. We note that the officer’s question represents an interrogation for Miranda purposes regardless of whether it was designed to elicit an incriminating response. It is important to note that the actual test, set forth in Innis , is not merely whether the question was designed to elicit an incriminating response, but, rather, whether the police officer should Jcnoiv that the question is reasonably likely to elicit an incriminating response from the suspect.

Officer Lagos’s testimony as to his suspicion of gang activity at the scene indicates that he should have known that his question as to why appellant was carrying this knife would elicit an incriminating response. It is irrelevant for purposes of our analysis whether Officer Lagos was honestly hoping that appellant would provide an innocent explanation for carrying the knife. The dispositive factor in this analysis is whether Officer Lagos should have known that his question would elicit an incriminating response. Officer Lagos testified to having six years experience as a police officer and that he initially approached the subjects because of his suspicion of gang activity.

He should have known that his question was reasonably likely to elicit an incriminating response. The trial judge erred in his position on this issue. 3 We recognize the possibility, as the trial judge reasoned, that the ²⁸⁵ officer would have indeed concluded his questioning and let appellant go if appellant had provided an innocent explanation as to why he was carrying the knife. Nonetheless, that point is not pertinent in our analysis. The test in this analysis is not based on what the officer was thinking, or whether such explanation could have prevented appellant’s arrest.

In fact, we are even inclined to agree with the trial judge that the officer’s question may have been designed to produce an innocent explanation as to why appellant was carrying this knife and that the officer did not necessarily attempt to elicit an incriminating response. We are even inclined to agree that, had appellant given the officer an innocuous response, he may have been free to go at that time and not subject to arrest. Having said that, however, we emphasize that such reasoning is not appropriate as to whether interrogation took place under Miranda . The main factor to be determined is simply whether the officer should have known that an incriminating response would be elicited.

A review of the circumstances surrounding the officer’s question demonstrates that it was indeed very probable that appellant’s response would be incriminating. Based on Officer Lagos’s testimony regarding the circumstances present at the time the knife was discovered, it is apparent that the officer was convinced that appellant did not have a legal purpose for carrying a concealed knife. Officer Lagos, once he discovered the knife, was seemingly convinced that a crime was being committed, so that a “general exploration into suspicious circumstances” was not needed at the time. At the time this question was asked, appellant was involved in what Officer Lagos suspected was gang-like activity, and he was attempting to conceal a rather large knife under his shirt.

Given these circumstances, we find it rather fatuous to assume that Officer Lagos was expecting appellant to answer that he was carrying the knife to or from a “hunting expedition,” that he was using it to “cut deer,” or as a tool to fix something. There is no mention of hunting gear, nearby hunting grounds, a toolbox, or any other item in the vicinity of Cinnamon Drive ²⁸⁶ and a Safeway store in Montgomery County that would have made it possible for Officer Lagos to infer any other use for the knife than as a weapon. In fact, the State, in its closing argument at trial, even conceded this fact: “Well certainly from the circumstances there is no indication that that knife was used for any other purpose than what the defendant said he was going to use it for to scare the other party.” (Emphasis added.) The State also asserted: “The circumstances indicate that there was no other use for it. It is not as though he were coming from a legitimate place of employment or at least there is no evidence to indicate that.” 4 (Emphasis added.) Law enforcement would have been better served had Officer Lagos merely read appellant his Miranda rights prior to asking him this question.

One of two things would have taken place. Either appellant would have remained silent at that point, or appellant would have nonetheless made the very same statement, albeit, this time it would have been perfectly admissible. We reject the notion that Miranda does not apply to this case because this question was indicative of routine questioning, and therefore not proscribed by Miranda , pursuant to Clarke v. State, 3 Md.App. 447 , 240 A.2d 291 (1968). 5 In Clarke , an officer, while filling out the forms in connection with the “booking procedure,” asked appellant his name, ad ²⁸⁷ dress, and place of employment. Appellant’s response as to his place of employment led police to evidence proving appellant’s guilt.

Appellant argued that the evidence discovered was the product of his interrogation in violation of his Miranda rights. We rejected this contention, and we found that routine questions concerning a defendant’s name, address, and place of employment are not proscribed by Miranda . We compared the facts in that case to those of Farley v. United States, 381 F.2d 357 (1967), a Fifth Circuit Court of Appeals case. The defendant had been arrested for attempted burglary of a post office.

After defendant had declined to tell the postal inspector anything concerning the crime, referring all questions to his attorney, the inspector made one more inquiry, asking defendant where he lived, and defendant answered. The purpose of eliciting this testimony from appellant was to negate any possible explanation for his presence at the scene of the crime by proving that he lived a considerable distance away. The Court held that this evidence was admissible, stating: “The place where Farley lived was, of course, not a matter within Farley’s exclusive knowledge, and he no doubt recognized that a little investigation by the officers would locate that place. It was a circumstance having at most a remote bearing upon his guilt or innocence.” Id. at 359 .

That type of questioning is very easily distinguished from the question Officer Lagos asked appellant in the present case. The officer’s inquiry as to why appellant was carrying the concealed knife had a direct bearing upon his guilt or innocence, and his intent for carrying the knife was essentially solely within his exclusive knowledge. We rule out the possibility that Officer Lagos’s question was merely a routine question not proscribed by Miranda . In Whitfield , the Court of Appeals stated: In contrast to custodial inquiry is “the traditional function of police officers in investigating crime ... [to conduct] [g]eneral on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process,” which does not require the use of the Miranda safeguards.

Miranda v. Arizona, 384 U.S. at 477 , ²⁸⁸ 86 S.Ct. 1602 . An on-the-scene investigation is normally envisioned as encompassing a general exploration into suspicious circumstances in order to determine if a crime has been committed; or as encompassing a probe into known crime which lacks an identifiable suspect. Whitfield, 287 Md. at 131-32 , 411 A.2d 415 (citation omitted). In the present case, Officer Lagos’s question represented more than mere on-the-scene investigation, as his question was not indicative of any fact-finding process.

We briefly consider whether there is any implication of an emergency situation that would provide an exception to the Miranda warnings, pursuant to N.Y. v. Quarles, 467 U.S. 649 , 104 S.Ct. 2626 , 81 L.Ed.2d 550 (1984). 6 We find that no emergency situation existed at the time Officer Lagos asked appellant why he was carrying the knife. Officer Lagos’s trial testimony provided 7 : A: When I initially rode up, there were two groups of subjects congregating on the sidewalk. Upon giving eye contact with me, both groups dispersed. One went to the right ...

Q: Now at any time was the defendant, was he acting hostile towards you? A: Hostile, no. He was very cooperative. ²⁸⁹ Q: At any time when you were first approaching these two groups, did you observe the defendant brandishing any weapon? A: No. Q: Did you overhear any yelling?

A: No. Q: Did you observe the defendant fighting with anybody? A: No, I did not. Q: Did you observe anybody fighting? A: No. Traffic stops and Terry stops The State contends that the officer’s question, and his detainment of appellant, did not rise to the level where Miranda warnings were necessary.

We disagree. The State relies on Jones in this contention. This reliance is misplaced, as there was no “custodial interrogation” in that case. Jones had merely been subjected to a Terry stop on the street to await a show-up identification by a witness to a recent shooting.

While waiting for the witness to arrive, the officer asked Jones several questions: I asked him if he lived in the area, the specific area where we had encountered him, he indicated he did not. We asked him what he was doing or what he had been doing. He stated that he had been playing basketball with some friends and that he’d been dropped off on the corner. I think, when I asked him where he lived, he gave me an address that was on the west side of town. 1 know that cause I used to work in the west side of town.

Jones, 182 Md.App. at 665, 753 A.2d 587 . Judge Moylan, writing for this court, stated: The appellant, to be sure, had been seized within the contemplation of the Fourth Amendment and was not free to leave the scene. Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968). That was enough to engage the gears of the Fourth Amendment, but it was not enough to ²⁹⁰ engage the gears of Miranda v. Arizona.

As Berkemer v. McCarty, 468 U.S. 420 , 104 S.Ct. 3138 , 82 L.Ed.2d 317 (1984), made clear, every lawful detention within the contemplation of the Fourth Amendment is not ipso facto necessarily “custody” within the contemplation of Miranda . Id. at 666, 753 A.2d 587 . At trial, Jones had wished to testify that he was present in the neighborhood to purchase food at a carry-out; however, his previous answers to the officer’s questions effectively rebutted such an attempted explanation at trial. We considered his contention that his statements should have been suppressed due to a Miranda violation, even though we stated that the officer’s “testimony as to what he asked the appellant and as to the appellant’s responses seems totally innocuous.” Id. at 665, 753 A.2d 587 .

Our holding in that case was that “the appellant was not in custody within the contemplation of Miranda and that there was, therefore, no need for him to have been given Miranda warnings.” Id. at 666, 753 A.2d 587 . We point out that Jones had not yet been placed in custody, as the detainment had not progressed further than a Terry stop until after the witness arrived and made the positive identification. Further, it cannot be said that the officer in Jones should have known that his questions were likely to elicit an incriminating response. The only reason that Jones had attempted to suppress the statements was because he later decided to change his story to the effect that he had been in the neighborhood to purchase food.

We could not expand our definition of “incriminating statement” to include a subject’s answers to such basic and seemingly innocuous questions as where he lives and why he is in a particular neighborhood. At that point, no weapons had been found on Jones, and no probable cause existed that he had committed the shooting in question. That is to be contrasted with our present case, where appellant had already been found to be in possession of a large knife concealed under his shirt. There is a major distinction ²⁹¹ between an instance where one is merely asked why he is in a certain neighborhood, to which any of a limitless number of answers could provide a reasonable explanation, and a situation wherein a subject already suspected of being involved in gang activity is discovered to be concealing a large knife under his shirt.

The State’s reliance on Berkemer v. McCarty, 468 U.S. 420 , 104 S.Ct. 3138 , 82 L.Ed.2d 317 (1984), is likewise misplaced. In Berkemer , the defendant had been lawfully stopped on the highway for a traffic violation and, while sitting in his vehicle, was interrogated by the stopping officer. He gave several incriminating admissions without having been given Miranda warnings. The defendant in Berkemer , relying on Miranda , argued that he had “been taken into custody or otherwise deprived of his freedom of action in [a] significant way” so as to require Miranda warnings.

Berkemer, 468 U.S. at 435 , 104 S.Ct. 3138 . The Supreme Court, however, declined this line of reasoning, stating: [W]e decline to accord talismanic power to the phrase in the Miranda opinion emphasized by respondent. Fidelity to the doctrine announced in Miranda requires that it be enforced strictly, but only in those types of situations in which the concerns that powered the decision are implicated. Thus, we must decide whether a traffic stop exerts upon a detained person pressures that sufficiently impair his free exercise of his privilege against self-incrimination to require that he be warned of his constitutional rights.

Id. at 437 , 104 S.Ct. 3138 . Indeed, that was the very analysis later employed by the Supreme Court in Berkemer to distinguish a curbside detention, notwithstanding that it was a Fourth Amendment seizure of the person and that the suspect was not free to leave, from “custodial interrogation” under circumstances presumptively constituting unconstitutional compulsion. The mere “stop,” unless it escalates into a more significant detention, will presumably be brief, whereas custodial interrogation may frequently be prolonged indefinitely, with the ²⁹² suspect fearing that “questioning will continue until he provides his interrogators the answers they seek.” Jones, 132 Md.App. at 669 , 753 A.2d 587 . Two features of an ordinary traffic stop mitigate the