Hughes v. State

CHASANOW, Judge. We are called upon in this case to examine the validity and scope of what is commonly known as the “routine booking question” exception to the requirements of Miranda v. Ari ⁸⁴ zona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966). The precise issue before the Court is whether the “routine booking question” exception encompasses a question on an arrest intake form as to whether the arrestee is a “narcotics or drug user.” For the reasons set forth below, we conclude that it does not. Accordingly, the admission of testimony regarding the arrestee’s response, absent Miranda warnings, to this question was error and requires reversal of the judgment below.

I. The petitioner, Michael Patron Hughes, was arrested on October 14, 1993, for his suspected involvement in the distribution of illegal drugs. He was subsequently charged with possession with intent to distribute cocaine, possession of cocaine, conspiracy to distribute cocaine and conspiracy to possess with intent to distribute cocaine. The petitioner was tried by jury in the Circuit Court for Prince George’s County, which resulted in a verdict of guilty on all charges. At trial, Corporal David Morrissette of the Prince George’s County Police Department described the events leading up to the petitioner’s arrest.

He testified that the petitioner was arrested in connection with a narcotics distribution surveillance operation on Warner Avenue in Landover Hills. The operation consisted of two plain-clothed police officers, who scanned the area for illegal drug activity, and approximately 15 uniformed officers, who stood by to apprehend offenders if any such activity were observed. Upon receiving a radio communication from the surveillance officers that they had indeed witnessed a series of apparent drug transactions, Corporal Morrissette and other uniformed officers proceeded to the target location. As the officers approached, a group of three to four individuals, one of whom was the petitioner, dispersed and fled the area.

Corporal Morrissette pursued and ultimately apprehended the petitioner. During the course of the pursuit, the petitioner discarded an item, which later was determined to be a glassine bag ⁸⁵ containing approximately eight rocks of crack cocaine. Corporal Morrissette also discovered in the petitioner’s possession a pager and $62.00 in mostly small bills. During post-arrest processing, Corporal Morrissette completed a standard Prince George’s County Police Department arrest report.

In addition to such biographical information as the arrestee’s name, address, and telephone number, the arrest form contains a section in which the officer is to indicate whether the arrestee is a “narcotic or drug user.” If the arrestee answers this question in the affirmative, the officer is to indicate the “type” of narcotic or drug. The petitioner, however, answered this question in the negative. At trial, the prosecutor sought to have Corporal Morrissette testify as to the petitioner’s negative response to the “narcotics or drug” use question. Defense counsel objected on the ground that the petitioner had not yet been advised,of his Miranda rights at that time, and that the response to the question was thus inadmissible.

The prosecutor countered that the question was exempt from Miranda under the routine booking question exception. After much discussion, the trial judge permitted the following testimony: “[STATE’S ATTORNEY]: Corporal Morrissette, I’m showing you what has been marked as State’s Exhibit No. 4, and what is that document, just for the record? [MORRISSETTE]: Prince George’s County Police Department arrest report. [STATE’S ATTORNEY]: And who filled that document out? [MORRISSETTE]: I did. [STATE’S ATTORNEY]: And on Question No. 18, which is part of the preprinted booking information, did you ask the defendant whether or not he was a narcotics or drug user? [MORRISSETTE]: Yes. [STATE’S ATTORNEY]: And what was his response? [MORRISSETTE]: No, he was not.” ⁸⁶ The prosecutor later used the petitioner’s response that he was not a drug user to support the charge that the petitioner intended to distribute, as opposed to consume, the cocaine in his possession. In closing argument, the prosecutor urged the jury to consider the significance of the defendant’s response as follows: “You also have a statement that was made during the booking process by the defendant that he doesn’t use drugs. Well, you may consider that however you wish.

You can ignore it totally if you want to, whatever you want to do, but I think that that is—you can take that into consideration. If he says he doesn’t use drugs, then he presumptively didn’t have this for his own personal use, he intended to do something with it, or if you decide that because he was being booked at that time that maybe he wasn’t telling the whole story, that’s fine, but even without that statement, you certainly have a quantity of drugs with the surrounding circumstances that indicate that he in fact intended to sell it or give it away.” On appeal of his convictions to the Court of Special Appeals, the petitioner asserted that the trial court erred in permitting Officer Morrissette to testify regarding the negative response to the drug use question on the arrest intake form. 1 The intermediate appellate court held that the question fell within the routine booking question exception to Miranda , and it found no error by the trial judge in admitting the testimony.

II

A. In Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), the Supreme Court concluded that proper protection of the privilege against self-incrimination requires ⁸⁷ the adoption of certain procedural safeguards in the context of custodial interrogation. Specifically, the Court held that an individual in police custody must be warned, prior to any interrogation, “that he has the right to remain silent, that anything he says can be used against him in a court of law, [and] that he has the right to the presence of an attorney,” either retained or appointed. Miranda, 384 U.S. at 479 , 86 S.Ct. at 1630 , 16 L.Ed.2d at 726 . Absent a knowing and voluntary waiver of these rights, any incriminating responses to police questioning are inadmissible against the detained individual at subsequent criminal proceedings.

Id. The obligation to give Miranda warnings arises whenever an individual is subjected to “custodial interrogation.” See Vines v. State, 285 Md. 369, 374 , 402 A.2d 900, 903 (1979)(observing that “in order to be subject to the Miranda warnings, statements must flow from a ‘custodial interrogation’ within the meaning of Miranda ”). In the years since this landmark decision, however, a number of exceptions to Miranda’s requirements have been recognized. See, e.g., New York v. Quarles, 467 U.S. 649 , 104 S.Ct. 2626 , 81 L.Ed.2d 550 (1984)(public safety exception).

One such exception to Miranda’s requirements is referenced by the Supreme Court in Pennsylvania v. Muniz, 496 U.S. 582 , 110 S.Ct. 2638 , 110 L.Ed.2d 528 (1990). It is known as the routine booking question exception. At issue in Muniz was a series of questions posed, without Miranda warnings, to one Inocencio Muniz who was arrested on suspicion of driving while intoxicated. Muniz, 496 U.S. at 585 , 110 S.Ct. at 2642 , 110 L.Ed.2d at 541 .

In accordance with standard police procedure, the arresting officer asked Muniz his name, address, height, weight, eye color, age, and date of birth. The officer also asked Muniz if he knew the date of his sixth birthday, to which Muniz responded that he did not. Muniz, 496 U.S. at 586 , 110 S.Ct. at 2642 , 110 L.Ed.2d at 542 . The responses to these questions were captured on a video tape, which was later admitted into evidence at trial.

Muniz, 496 U.S. at 585-87 , 110 S.Ct. at 2642 , 110 L.Ed.2d at 541-42 . On ⁸⁸ appeal of his conviction, Muniz asserted, among other things, that admission of the video tape violated Miranda and the privilege against self-incrimination. The Supreme Court agreed that the question concerning the date of the suspect’s sixth birthday should have been suppressed because of its incriminating content. Muniz, 496 U.S. at 600 , 110 S.Ct. at 2649 , 110 L.Ed.2d at 551 .

The Court explained that “[t]he content of his truthful answer supported an inference that his mental faculties were impaired” because “the trier of fact might reasonably have expected a lucid person to [be able to] provide” that date. Muniz, 496 U.S. at 599 , 110 S.Ct. at 2649 , 110 L.Ed.2d at 550 . The suspect’s response to that question, therefore, should have been suppressed. More importantly for our purposes in the instant case, a plurality of the Muniz Court further agreed that responses to the first seven questions (i.e., name, address, height, weight, eye color, age, and date of birth) fell within a “routine booking question” exception to Miranda .

This exception “exempts from Miranda’s coverage questions to secure the ‘ “biographical data necessary to complete booking or pretrial services.” ’ ” Muniz, 496 U.S. at 601 , 110 S.Ct. at 2650 , 110 L.Ed.2d at 552 (quoting Brief for U.S. as Amicus Curiae at 12, in turn quoting United States v. Horton, 873 F.2d 180 , 181 n. 2 (8th Cir.1989)). As the Court explained: “The state court found that the first seven questions were ‘requested for record-keeping purposes only,’ ... and therefore the questions appear reasonably related to the police’s administrative concerns. In this context, therefore, the first seven questions asked at the Booking Center fall outside the protections of Miranda and the answers thereto need not be suppressed.” (Footnote omitted)(emphasis added). Muniz, 496 U.S. at 601-02 , 110 S.Ct. at 2650 , 110 L.Ed.2d at 552 .

The Supreme Court emphasized, however, that not every question asked during the booking process necessarily falls within the routine booking question exception. See Muniz, 496 U.S. at 602 n. 14, 110 S.Ct. at 2650 n. 14, 110 L.Ed.2d ⁸⁹ at 552 n. 14. Quoting with approval an excerpt from an amicus brief, the Court stated: “ ‘Recognizing a “booking exception” to Miranda does not mean, of course, that any question asked during the booking process falls within that exception. Without obtaining a waiver of the suspect’s Miranda rights, the police may not ask questions, even during booking, that are designed to elicit incriminating admissions.’ ” (Emphasis added).

Id. (quoting Brief for U.S. as Amicus Curiae at 13). The Muniz decision thus suggests that routine booking questions regarding the arrestee’s name, address, height, weight, eye color, date of birth, and current age, which are aimed at securing “biographical data necessary to complete booking or pretrial services,” and which are asked in that context are exempt from the requirements of Miranda , unless they are “designed to elicit incriminating admissions.” Only four Justices joined in the portion of the Muniz opinion, however, that carved out this exception to Miranda . In a dissenting opinion, Justice Marshall criticized the plurality’s recognition of the routine booking question exception, stating that “[e]ven if a routine booking question exception to Miranda were warranted, that exception should not extend to any booking question that the police should know is reasonably likely to elicit an incriminating response, regardless of whether the question is ‘designed’ to elicit an incriminating response....” See Muniz, 496 U.S. at 610-11 , 110 S.Ct. at 2655 , 110 L.Ed.2d at 558 (Marshall, J., dissenting) (citation omitted)(emphasis added).

Justice Marshall further explained: “Although the police’s intent to obtain an incriminating response is relevant to [the] inquiry, the key components of the analysis are the nature of the questioning, the attendant circumstances, and the perceptions of the suspect. Accordingly, Miranda warnings are required before the police may engage in any questioning reasonably likely to elicit an incriminating response.” Id. (citation omitted). The remaining four Justices found it “unnecessary” to examine the applicability of the booking question exception defined by the plurality because, in their view, “Muniz’s responses to the videotaped ⁹⁰ ‘booking’ questions were not testimonial and do not warrant application of the [Fifth Amendment] privilege.” Muniz, 496 U.S. at 608 , 110 S.Ct. at 2654 , 110 L.Ed.2d at 556 (Rehnquist, C. J., concurring in the result).

Hence, while the Muniz decision indicates that some members of the Supreme Court supported a routine booking question exception, the opinion does not reflect a consensus of the Court as to the scope of that exception. B. Prior to the Muniz decision, a routine booking question exception to Miranda had gained widespread acceptance among lower courts. See, e.g., U.S. v. Doe, 878 F.2d 1546 (1st Cir.1989); United States v. Morrow, 731 F.2d 233 (4th Cir.), cert. denied, 467 U.S. 1230 , 104 S.Ct. 2689 , 81 L.Ed.2d 883 (1984); United States v. Avery, 717 F.2d 1020 (6th Cir.1983), cert. denied, 466 U.S. 905 , 104 S.Ct. 1683 , 80 L.Ed.2d 157 (1984); United States v. McLaughlin, 777 F.2d 388 (8th Cir.1985); United States v. Disla, 805 F.2d 1340 (9th Cir. 1986); United States v. Glen-Archila, 677 F.2d 809 (11th Cir.), cert. denied, 459 U.S. 874 , 103 S.Ct. 165 , 74 L.Ed.2d 137 (1982). The justification for the exception was that an arrestee is not subjected to the coercive atmosphere of custodial interrogation that Miranda was intended to prevent when he or she is asked a question that is not intended to elicit an incriminating response.

See Mills v. State, 278 Md. 262, 268 , 363 A.2d 491, 494 (1976)(and cases cited therein); see also Com. v. Kacavich, 28 Mass.App.Ct. 941 , 550 N.E.2d 397, 397 (1990)(stating that “routine booking inquiries ... are not interrogation within the meaning of the Miranda rule”). That is to say, because booking questions generally are not designed to evoke incriminating answers, courts reasoned that they do not rise to the level of “interrogation,” as contemplated by the Supreme Court in Miranda . In Maryland, the Court of Special Appeals has applied this reasoning to uphold the validity of questions regarding a suspect’s name, address, and place of employment. See Clarke v. State, 3 Md.App. 447, 451 , 240 A.2d 291, 294 (1968)(stating that these questions ⁹¹ “were not intended to elicit answers which would incriminate the Appellant”); Propst, May & May v. State, 5 Md.App. 36, 43 , 245 A.2d 88, 92 (1968)(upholding validity of question about address and stating that “we do not think that routine booking procedures are the kind of interrogation covered by Miranda in the absence of unusual circumstances.... ”); Grimes v. State, 44 Md.App. 580, 586 , 409 A.2d 767, 771 (1980)(relying on Clarke and Propst to uphold question about name), rev’d on other grounds, 290 Md. 236 , 429 A.2d 228 (1981); Ferrell v. State, 73 Md.App. 627, 640 , 536 A.2d 99, 105 (1988)(relying on Grimes and stating that “routine questions seeking a person’s name and address are not proscribed by Miranda....”), rev’d on other grounds, 318 Md. 285 , 567 A.2d 937 (1990).

The Supreme Court’s decision in 1980 in Rhode Island v. Innis, 446 U.S. 291 , 100 S.Ct. 1682 , 64 L.Ed.2d 297 (1980), however, prompted a subtle change in the application of the booking question exception. In Innis , the Supreme Court held that “interrogation” for purposes of Miranda is “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Innis, 446 U.S. at 301 , 100 S.Ct. at 1689-90 , 64 L.Ed.2d at 308 (emphasis added)(footnote omitted). The notion that a question “normally attendant to arrest and custody” may also be “reasonably likely to elicit an incriminating response” appears not to have been contemplated by the Innis Court. Lower courts, nevertheless, have interpreted Innis to mean that the routine booking question exception does not apply if a police officer knows, or should know, that a routine booking question, although innocuous on its face, is reasonably likely to evoke an incriminating answer.

See, e.g., Disla, 805 F.2d at 1347 (stating that the “officer ... should have known that the question regarding [the suspect’s] residence was reasonably likely to elicit an incriminating response” and “[i]n light of both the context of the questioning and the content of the question ... Disla was subjected to interrogation”); United States v. Mata-Abundiz, 717 F.2d 1277, 1280 (9th Cir.1983)(stating that “[i]f ... the questions ⁹² are reasonably likely to elicit an incriminating response in a particular situation, the exception does not apply”). Under this standard, courts have held that Miranda warnings should have preceded questions concerning such topics as an arrestee’s citizenship, see Mata-Abundiz, 717 F.2d at 1280 and Doe, 878 F.2d at 1551 ; residence, see Disla, 805 F.2d at 1347 (but failure to suppress held to be harmless error); and name, see U.S. v. Parra, 2 F.3d 1058, 1068 (10th Cir.)(but failure to suppress held to be harmless error), cert. denied, 510 U.S. 1026 , 114 S.Ct. 639 , 126 L.Ed.2d 597 (1993). But see U.S. v. Broadus, 7 F.3d 460, 464 (6th Cir.1993)(no indication that police should have known that routine question about telephone number was likely to elicit incriminating information); People v. Rodney, 85 N.Y.2d 289 , 624 N.Y.S.2d 95, 98 , 648 N.E.2d 471, 474 (1995)(question about occupation not reasonably likely to elicit an incriminating response).

C. Interestingly, the Muniz plurality did not acknowledge, in its discussion of the routine booking question exception, the limitation derived from Innis that lower courts had adopted. The standard set forth by the plurality, rather, was that questions asked during booking that are aimed at gathering biographical information for record-keeping purposes are exempt from Miranda ; the express limitation on this rule is that the police may not ask questions, under the guise of routine booking questions, that are “designed to elicit incriminating admissions.” 2 The Innis-based formulation, in contrast, recognizes an exemption for routine booking questions, but pro ⁹³ hibits police from posing, absent Miranda warnings, any questions that the police know or should know are “reasonably likely to elicit an incriminating response.” The difference between the two standards is that the former limits the scope of the booking question exception based solely on the actual intent of the police officer in posing