Smith v. State

MOYLAN, J. The problem is a simple one of proper conceptualization. At a surface level, the tactical issue in the case is that of whether Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), applies to the investigative event on which the appellant focuses. At the strategic level, the issue is that ⁵⁰⁴ of whether the Fifth Amendment privilege against compelled self-incrimination applies to that investigative event. If, for any reason, that strategic protection should not apply, then any tactical minutiae generated by Miranda v. Arizona would be beside the point.

The subordination of the tactical conceptualization to the strategic conceptualization is our central theme. The appellant, Thomas Smith, was convicted by a Carroll County jury, presided over by Judge Michael M. Galloway, of the possession of crack cocaine with the intent to distribute it. Upon this appeal, he raises the single contention that at a pretrial suppression hearing, Judge Galloway erroneously failed to suppress an inculpatory admission which, he claims, was elicited in violation of Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966). The Suppression Hearing Our only concern, therefore, is with the suppression hearing and the evidence produced thereat.

Judge Galloway conducted the hearing on March 15, 2007. It was established that at approximately 7:45 P.M. on June 7, 2006, four members of the Westminster City Police Department executed a search and seizure warrant at 16 Pennsylvania Avenue, Apartment 13, in Westminster. The apartment belonged to the appellant. Recovered from the appellant’s chest of drawers in the appellant’s bedroom was a plastic bag containing approximately one ounce of crack cocaine.

At the suppression hearing, the appellant attacked, secondarily, the validity of the search warrant. Judge Galloway ruled that the application for the warrant had, indeed, furnished Judge Luke Burns with a substantial basis for issuing the warrant. He accordingly denied the motion to suppress in that regard. The appellant no longer challenges that ruling.

The primary thrust of the appellant’s challenge was, and is, to the admissibility of his exclamation, “It is all mine,” repeated twice, as one of the searching officers walked from the bedroom of the apartment into the living room holding the ⁵⁰⁵ plastic bag of crack cocaine. The appellant’s argument, in a nutshell, is that that inculpatory exclamation was made in response to the functional equivalent of interrogation, to which he had been subjected by the police without the benefit of his constitutionally required Miranda advisements. The Harmless Error We Need Not Consider To keep the whole issue in realistic perspective, the exclamation, “It is all mine,” amounted to little more than a self-evident truism. The apartment that was searched belonged to the appellant and was apparently not shared by anyone else.

The bedroom that was searched belonged to the appellant. The chest of drawers that was searched belonged to the appellant and contained his clothing. The drawer that contained the crack cocaine was a small drawer which the cocaine shared with the appellant’s socks. Corporal Scott Peter, the lead investigator who recovered the cocaine, took the possessory connection for granted: “I didn’t ask him if it was his.

It was in a sock drawer. I just assumed that it was his.” It is unnecessary, however, to speculate about the hypothetical possibility of harmless error in view of our firm conclusion that there was no error in the first place. If no error exists, there would be only a vacuum to assess in terms of either harmlessness or harmfulness. Forgoing that “arguendo exercise,” we will confine ourselves to the merits of the Miranda issue.

The Appellant’s Exclamation and Its Antecedents At the suppression hearing, only two witnesses were called upon to testify. One was Corporal Scott Peter, the lead investigator in the case and the officer who had applied for and been issued the search and seizure warrant that was being executed. The other witness was Corporal James Pullen, of the Criminal Investigation Bureau of the Westminster City Police Department, who was assisting Corporal Peter in executing the warrant. We find it curious, and not without some significance, that the appellant himself did not testify.

His sole appellate contention is that the combination of his deten ⁵⁰⁶ tion and some ambiguous' police conduct that he claims was the functional equivalent of interrogation somehow compelled him to exclaim the words, “It is all mine.” In terms of why he spoke and of what made him speak, he was the only person who truly knew the answer, but he chose to say nothing. The notion that the appellant chose to take all the blame on himself in order to exonerate one of the other arrestees, who may have been his girlfriend, simply has no testimonial predicate. The appellant might have told us about such matters, but he did not. 1 On the preliminary issue of suppressing his inculpatory exclamation, he was, of course, free to testify with the full protection of use immunity so that nothing he said at the pretrial hearing could later have been used against him on the merits of guilt or innocence. Simmons v. United States, 390 U.S. 377 , 88 S.Ct. 967 , 19 L.Ed.2d 1247 (1968).

It was Corporal Pullen who, a few minutes into the search, discovered in the appellant’s bedroom the plastic bag containing a quarter of an ounce of what turned out to be cocaine. Corporal Pullen alerted Corporal Peter to his discovery. Corporal Peter, in turn, observed the suspected cocaine in the bureau drawer and seized it. As he then carried the bag of cocaine from the bedroom into the living room, he showed it to the appellant and then announced to the other officers that all four persons who were then being detained would be arrested.

The appellant blurted out, “It is all mine.” When asked about the timing of the appellant’s blurt, Corporal Peter testified: Seconds, probably—from the time it took me to walk by him and say that everyone is being arrested, less than probably ten seconds. ⁵⁰⁷ It is appellant’s contention that his exclamation, “It is all mine,” was his compelled response to the combination of 1) custody and 2) the functional equivalent of interrogation. A Testimonial Privilege To get a firm grip on what we are dealing with, we need to zoom in, progressively, first on the testimonial privilege that is constitutionally enshrined in the Fifth Amendment, then on the Supreme Court case of Miranda v. Arizona that implements that privilege in certain new and relatively unfamiliar circumstances, then more narrowly on the very threshold of Miranda’s applicability, and finally on the respective sub-elements of applicability, to wit, custody and interrogation. The Fifth Amendment privilege is part of a broader evidentiary family, the “testimonial privileges.” Other members of the family may include (it varies from state to state) the husband-wife privilege, the attorney-client privilege, the doctor-patient privilege, the priest-penitent privilege, the news reporter-source privilege. The privilege against compelled self-incrimination, however, is the only privilege that enjoys constitutional status.

As with all testimonial privileges, however, the privilege against self-incrimination is a limited exemption from a basic obligation. The fundamental societal rule is that in the pursuit of full disclosure in the courtroom, in civil and criminal trials alike, “the public is entitled to everyone’s knowledge.” Kastigar v. United States, 406 U.S. 441, 443-44 , 92 S.Ct. 1653 , 32 L.Ed.2d 212 (1972). Certain overriding considerations, however, with most privileges as a matter of policy, sometimes justify an exemption from that testimonial obligation. Because such exemptions are, as a general rule, disfavored, 2 however, the burden is upon a party assert ⁵⁰⁸ ing a testimonial privilege 1) expressly to claim it, Rogers v. United States, 340 U.S. 367, 370-74 , 71 S.Ct. 438 , 95 L.Ed. 344 (1951), and 2) to demonstrate an entitlement to it, Hoffman v. United States, 341 U.S. 479 , 71 S.Ct. 814 , 95 L.Ed. 1118 (1951).

Required Elements of the Fifth Amendment Privilege The Fifth Amendment privilege consists of a spare fifteen words: “no person shall be compelled in any criminal case to be a witness against himself.” Those fifteen words, however, spell out six separate elements. For the privilege to be available, each of its six constituent elements must be established: 1. no person 3 2. shall be compelled [the compulsion element] 4 3. in any criminal case 5 ⁵⁰⁹ 4. to be a witness [the testimonial element] 6 5. against 7 6. himself; 8 Historically, the applicability of these six elements—and, therefore, of the privilege itself—was something that was hammered out in the courtroom or some other formal legal setting. The privilege has been an integral part of our legal culture for 218 years, since the ratification of the Bill of Rights on December 15, 1791, and a massive body of caselaw has been built up around it. It was only in 1966, when Miranda v. Arizona moved the privilege from the courthouse ten blocks up the street to the station house and from the trial ten weeks backward in time to the initial investigation, that additional rules for assessing both applicability and satisfaction became necessary.

The Miranda opinion itself, 384 U.S. at 461 , 86 S.Ct. 1602 , explained why the privilege against compelled self-incrimination, to be effective, necessarily had to apply to the station house as well as to the courthouse. We are satisfied that all the principles embodied in the privilege apply to informal compulsion exerted by law-enforcement officers during in-custody questioning. An individual swept from familiar surroundings into police custody, surrounded by antagonistic forces, and subjected to the techniques of persuasion described above cannot be otherwise than under compulsion to speak. As a practical matter, the compulsion to speak in the isolated setting of the police station may well be greater than in courts or ⁵¹⁰ other official investigations, where there are often impartial observers to guard against intimidation or trickery.

(Emphasis supplied). In the station house, as opposed to the courthouse, the normal tools and procedures for implementing the privilege are generally not available. 9 Alternative forms of implementation were necessary. Today, then, there can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves. We have concluded that without proper safeguards the process of incustody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.

In order to combat these pressures and to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored. 384 U.S. at 467 , 86 S.Ct. 1602 (emphasis supplied). Accordingly, Miranda devised its prophylactic catechism to implement the privilege against compelled self-incrimination in that new and unfamiliar setting, where lawyers and judges were not traditionally and routinely present. ⁵¹¹ Putting Miranda In Perspective As will be more fully explored infra, the critical issue in this case is not the satisfaction or violation of Miranda v. Arizona. It is, rather, the threshold applicability of Miranda v. Arizona. When Miranda is not applicable, there is, by definition, no way in which Miranda can be either satisfied or violated.

The whole Miranda package is, if inapplicable, utterly immaterial. To get a firm handle on the threshold issue of Miranda’s applicability or coverage, it is important to reidentify precisely what Miranda is and what Miranda is not. Miranda Is a Set of Prophylactic or Implementing Rules The giving of the so-called Miranda warnings or Miranda advisements or Miranda catechism by the police to a suspect is not, and never has been, a constitutional requirement. Although Miranda v. Arizona was necessarily held by Dickerson v. United States, 530 U.S. 428 , 120 S.Ct. 2326 , 147 L.Ed.2d 405 (2000), to be of constitutional status (lest Miranda no longer be enforceable against the states), 10 Miranda’s cole ⁵¹² brated catechism of warnings or advisements has been consistently held by the Supreme Court to be merely a set of prophylactic rules designed to implement the undergirding Fifth Amendment privilege.

In Michigan v. Tucker, 417 U.S. 433, 445-46 , 94 S.Ct. 2357 , 41 L.Ed.2d 182 (1974), Justice Rehnquist wrote for the Court in distinguishing between the Fifth Amendment privilege itself and Miranda’s implementing rules: [T]he police conduct at issue here did not abridge respondent’s constitutional privilege against compulsory self-incrimination, but departed only from the prophylactic standards later laid down by this Court in Miranda to safeguard that privilege. ⁵¹³ (Emphasis supplied). In New York v. Quarles, 467 U.S. 649, 654 , 104 S.Ct. 2626 , 81 L.Ed.2d 550 (1984), the Supreme Court again characterized the junior varsity status of the Miranda warnings. The prophylactic Miranda warnings therefore are not themselves rights protected by the Constitution but are instead measures to insure that the right against compulsory self-incrimination is protected. (Emphasis supplied).

In Oregon v. Elstad, 470 U.S. 298, 309 , 105 S.Ct. 1285 , 84 L.Ed.2d 222 (1985), Justice O’Connor distinguished the mere implementing rules from the under-girding constitutional privilege. If errors are made by law enforcement officers in administering the prophylactic Miranda procedures, they should not breed the same irremediable consequence as police infringement of the Fifth Amendment itself. (Emphasis supplied). In Connecticut v. Barrett, 479 U.S. 523, 528 , 107 S.Ct. 828 , 93 L.Ed.2d 920 (1987), the Supreme Court similarly stated: It remains clear that this prohibition on further questioning—is not itself required by the Fifth Amendment’s prohibition on coerced confessions, but is instead justified only by reference to its 'prophylactic purpose.

(Emphasis supplied). Davis v. United States, 512 U.S. 452, 457 , 114 S.Ct. 2350 , 129 L.Ed.2d 362 (1994), observed specifically with respect to Miranda’s right to counsel: The right to counsel established in Miranda was one of a “series of recommended ‘procedural safeguards’ ... that ivere not themselves rights protected by the Constitution but were instead measures to insure that the right against compulsory self-incrimination was protected.” (Emphasis supplied). See also Montejo v. Louisiana, 556 U.S.-, 129 S.Ct. 2079 , 173 L.Ed.2d 955 (2009); Withrow v. Williams, 507 U.S. 680, 690-91 , 113 S.Ct. 1745 , 123 L.Ed.2d 407 (1993) (“Miranda,'s safeguards are not constitutional in ⁵¹⁴ character.”); McNeil v. Wisconsin, 501 U.S. 171, 176-77 , 111 S.Ct. 2204 , 115 L.Ed.2d 158 (1991); Michigan v. Harvey, 494 U.S. 344, 350-51 , 110 S.Ct. 1176 , 108 L.Ed.2d 293 (1990); Duckworih v. Eagan, 492 U.S. 195, 203 , 109 S.Ct. 2875 , 106 L.Ed.2d 166 (1989); Solem v. Stumes, 465 U.S. 638, 644-45 , 104 S.Ct. 1338 , 79 L.Ed.2d 579 (1984). Maryland has punctiliously followed the Supreme Court’s lead.

Speaking through Chief Judge Orth in Ryon v. State, 29 Md.App. 62, 67 , 349 A.2d 393 (1975), this Court early on recognized that the Miranda warnings were designed to implement the Fifth Amendment privilege. [T]he Court in Miranda “recognized that these procedural safeguards were not themselves rights protected by the Constitution but were instead measures to insure that the right against compulsory self-incrimination was protected.” (Emphasis supplied). In State v. Ryon, 278 Md. 302 , 363 A.2d 243 (1976), the Court of Appeals did not simply affirm our decision but expressly adopted the opinion of this Court in Ryon v. State as its own. In In Re Appeal No. 245, 29 Md.App. 131, 149 , 349 A.2d 434 (1975), Chief Judge Orth again wrote for this Court: In both Harris and Tucker , the misconduct of the police violated only the prophylactic rules developed by Miranda to protect the right against self-incrimination. (Emphasis supplied).

In Ashford v. State, 147 Md.App. 1, 30 , 807 A.2d 732 (2002), we made reference to “Miranda’s quasi-constitutional status” and to “the ambiguous and indeterminant status of Miranda v. Arizona generally.” See also Williams v. State, 342 Md. 724, 761 , 679 A.2d 1106 (1996); Vines v. State, 285 Md. 369 , 379 n. 9, 402 A.2d 900 (1979) (“Miranda impressed procedural safeguards on the traditional test of voluntariness by way of warnings to be given.”); State v. Kidd, 281 Md. 32, 36-37 , 375 A.2d 1105 (1977); Thomas v. State, 128 Md.App. 274, 295 , 737 A.2d 622 (1999); Brashear v. State, 90 Md.App. 709, 721-22 , 603 A.2d 901 (1992); Reynolds v. State, 88 Md.App. 197, 208 , 594 A.2d 609 (1991) (“The so-called Miranda catechism is ⁵¹⁵ rather a judicially devised implementing device, specifically designed to safeguard the Fifth Amendment privilege against compelled self-incrimination.”); Kidd v. State, 33 Md.App. 445, 449-55 , 366 A.2d 761 (1976); Bartram v. State, 33 Md.App. 115, 160-67 , 364 A.2d 1119 (1976), aff'd, 280 Md. 616 , 374 A.2d 1144 (1977) (“i’Bjoth this Court and the Court of Appeals have recognized this pivotal difference between a constitutional violation itself which will trigger the ‘fruit of the poisonous tree’ doctrine and a ‘mere Miranda’ violation which will not trigger that doctrine.”). Sweep of an Implementing Rule Can Be No Broader Than That of the Thing Being Implemented To avoid overdosing on Miranda , it is important to keep constantly in mind the identity between the mere implementing rule and the undergirding constitutional protection being implemented. To understand the coverage of an implementing rule, both its reach and its limits, one must necessarily understand the coverage of the thing that the implementing rule implements. It is the latter that controls the former.

As this Court explained in Reynolds v. State, 88 Md.App. 197, 208 , 594 A.2d 609 (1991): The scope of an implementing rule can be no broader than the scope of the undergirding constitutional protection being implemented. The point of departure for any inquiry into the coverage of Miranda is the Fifth Amendment to the Constitution of the United States. That amendment is a broad umbrella. One of its five provisions is the privilege against compelled self-incrimination.

The identity between the implementing rule and the thing implemented was squarely stated by United States v. Mandujano, 425 U.S. 564, 579 , 96 S.Ct. 1768 , 48 L.Ed.2d 212 (1976): Miranda expressly rested on the 'privilege against compulsory self-incrimination; the prescribed warnings sought to ⁵¹⁶ negate the “compulsion” thought to be inherent in police station interrogation. (Emphasis supplied). Even when deeply immersed in Miranda v. Arizona in microcosm, therefore, one must never forget the enveloping macrocosm of the privilege against compelled self-incrimination. The view from the mountain top sometimes gives us insight not readily perceptible from the ground.

Miranda and the Element of Compulsion Of the six required elements that constitute the privilege against compelled self-incrimination, the one that is identified with Miranda v. Arizona is the element of compulsion. It is, indeed, a vital part of the label of the privilege itself. There is no such thing as a general constitutional privilege against self-incrimination. Cummings v. State, 27 Md.App. 361, 363-64 , 341 A.2d 294 (1975).

There is no such thing as a constitutional privilege against inadvertent self-incrimination or against stupid self-incrimination. Ciriago v. State, 57 Md. App. 563, 574 , 471 A.2d 320 (1984). The constitutional privilege guards against only one form of self-incrimination: COMPELLED self-incrimination. Oregon v. Elstad, 470 U.S. 298, 306-07 , 105 S.Ct. 1285 , 84 L.Ed.2d 222 (1985) (“The Fifth Amendment prohibits use by the prosecution in its case in chief only of compelled testimony.”).

As this Court pointed out in Jones v. State, 132 Md.App. 657, 668 , 753 A.2d 587 (2000), “Without the presumption of compulsion, the Supreme Court lacked any jurisdictional basis for imposing the Miranda catechism on the states.” Ordinarily, a person claiming the privilege against self-incrimination would be required to satisfy the court with respect to each of the constituent elements, including that of compulsion. Hoffman v. United States, 341 U.S. 479 , 71 S.Ct. 814 , 95 L.Ed. 1118 (1951). In the unusual context of custodial interrogation, however, Miranda has given a criminal defendant the benefit of a bright-line short-cut to the proof of the compulsion element. CUSTODIAL INTERROGATION IS ⁵¹⁷ PRESUMPTIVELY COMPELLING.

If the defendant can prove the two sub-elements of 1) custody and 2) interrogation, the defendant has, for all intents and purposes, ipso facto established the necessary element of compulsion without any further proof being required. This Court discussed this bright line short cut to the proof of compulsion in Reynolds v. State, 88 Md.App. 197, 209 , 594 A.2d 609 (1991), adopted by the Court of Appeals as the opinion of that court, Reynolds v. State, 327 Md. 494, 511 , 610 A.2d 782 (1992): To determine when the threat of governmental compulsion is at work in an investigative setting, Miranda announced a bright line formula that the combination of custody and interrogation will be deemed to be presumptively coercive. It is, therefore, custodial interrogation that gives rise to the presumption of compulsion and brings into play the therapeutic, implementing rule of Miranda. Absent the combination of both custody and interrogation, there is no presumption of compulsion and there is, therefore, no call for Miranda’s implementing countermeasures.

(Emphasis supplied). In the bright line short cut to the finding of compulsion, “Custodial interrogations is presumptively compelling,” the adverb “presumptively” serves a very critical function. The thing being searched for is still the element of compulsion. “Custody” and “interrogation” are not ends in themselves but are simply convenient trail markers that we follow in tracking down compulsion, trail markers that work most (but not necessarily all) of the time. Illinois v. Perkins, 496 U.S. 292 , 110 S.Ct. 2394 , 110 L.Ed.2d 243 (1990), was a case in point.

A defendant, who was in prison, gave incriminating statements to an undercover policeman who was posing as a fellow prisoner. The defense was that the undercover officers had not given the prisoner Miranda warnings even though both custody and interrogation were literally present. Justice Kennedy’s opinion kept the focus on the underlying actuality of compulsion. The warning mandated by Miranda was meant to preserve the privilege during “incommunicado interrogation of indi ⁵¹⁸ victuals in a police-dominated atmosphere.” That atmosphere is said to generate “inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.” “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." Berkemer v. McCarty (1984); 496 U.S. at 296 , 110 S.Ct. 2394 (emphasis supplied).

The merely presumptive (as opposed to absolute) identity between compulsion and custodial interrogation has significance in both directions. Just as Illinois v. Perkins is a case in which there was no compulsion even in the presence of custody and interrogation, such Maryland cases as In re Joshua David C., 116 Md.App. 580 , 698 A.2d 1155 (1997) (involving a 10-year-old juvenile) and Bond v. State, 142 Md.App. 219 , 788 A.2d 705 (2002) (eerily similar to Orozco v. Texas, 394 U.S. 324 , 89 S.Ct. 1095 , 22 L.Ed.2d 311 (1969)) may involve such extreme circumstances that there was compulsion even in the absence of custody (or at least in the absence of formal arrest as the most common hallmark of custody). The focus remains on compulsion itself. Thus, both the presumption that custodial interrogation is coercive and the implicit counter presumption that only custodial interrogation is coercive are, albeit true most of the time, subject to exceptions.

The other elements of the privilege generally not being in issue, the establishment of compulsion establishes the privilege. Once the Fifth Amendment privilege is applicable, then (but only then) are the implementing rules of Miranda applicable. In short, a criminal defendant claiming that Miranda is applicable (and that it, therefore, must be satisfied) must establish the two sub-elements of 1. CUSTODY, and 2.

INTERROGATION as those two terms of art have been fleshed out by the extensive body of Miranda caselaw. In Reynolds, 88 Md.App. at 208 , 594 A.2d 609 , we discussed this symbiotic relationship ⁵¹⁹ between the Fifth Amendment privilege and its implementing rules: When the threat of compulsion and the antidotal Fifth Amendment privilege are involved in an extrajudicial police-citizen confrontation, Miranda’s implementing rule is ipso facto involved as well. Absent that involvement of the Fifth Amendment privilege, based upon the inherent threat of compulsion, Miranda is self-evidently inapplicable. (Emphasis supplied). the Burden of Proving the Risk of Compulsion As with all testimonial privileges, the burden is upon the party claiming a privilege against compelled self-incrimination to prove entitlement to such a privilege.

All of the constituent elements of the privilege must, therefore, be established, including that of compulsion. Whether one seeks to prove the risk of compulsion via the roundabout totality of the circumstances route or via Miranda’s bright line short cut of custody plus interrogation, the allocation of the burden of proof remains the same. Via the short cut, the criminal defendant aspiring to Miranda benefits must prove both 1) custody and 2) interrogation. Whenever Miranda is raised as an issue in a criminal case, two very distinct questions present themselves: 1.

IS MIRANDA APPLICABLE? (Do not go on to Question # 2 unless the answer to Question # 1 is, “Yes.”) 2. IF SO, WAS MIRANDA SATISFIED? The passage from Question # ] to Question # 2 is also vitally important because a critical switch occurs in the allocation of the burden of proof.

If Miranda is, indeed, applicable and the merits of a confession are before the court, the burden properly is allocated to the State to show that the Miranda requirements were satisfied (and that the Fifth Amendment privilege was thereby vindicated). This is so because the burden of proving the admissibility of a challenged confession is always on the State. State v. Tolbert, 381 ⁵²⁰ Md. 539, 557, 850 A.2d 1192 (2004) (“In Maryland, when the State intends to use a confession ... given by the defendant to the police during custodial interrogation, the prosecution must, upon proper challenge, establish ... that the statement satisfies the mandate of Miranda v. Arizona.”) (emphasis supplied). At the threshold of showing the applicability of the Miranda requirements, however, the burden is on the defendant to show that applicability.

This is the same shift in the allocation of the burden of proof as that which is made between 1) showing the applicability of the Fourth Amendment and 2) showing the satisfaction of the Fourth Amendment. The burden has always been allocated to a defendant to show the threshold applicability of the Fourth Amendment, to show, for example, the coverage of the place, state action, that the defendant had standing to object, etc. Rakas v. Illinois, 439 U.S. 128 , 130 n. 1, 99 S.Ct. 421 , 58 L.Ed.2d 387 (1978); Rawlings v. Kentucky, 448 U.S. 98, 104 , 100 S.Ct. 2556 , 65 L.Ed.2d 633 (1980); Burks v. State, 96 Md.App. 173, 195 , 624 A.2d 1257 , cert. denied, 332 Md. 381 , 631 A.2d 451 (1993) (“The burden of showing Fourth Amendment coverage is, of course, upon the appellant.”); Fitzgerald v. State, 153 Md.App. 601, 662-63 , 837 A.2d 989 (2003), aff'd, 384 Md. 484 , 864 A.2d 1006 (2004). If and when the Fourth Amendment is determined to be applicable, on the other hand, the burden of proof then shifts to the State to show that the Fourth Amendment was satisfied, either by showing the existence of a judicially issued warrant or reasonable justification for a warrantless search. The Trigger of Custodial Interrogation What the appellant must prove in this case is custodial interrogation.

By way of repetitive refrain, Miranda drummed home its message that the need for its prophylactic catechism would be triggered by the fact of custodial interrogation. ⁵²¹ Our holding will be spelled out with some specificity in the pages which follow but briefly stated it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. 384 Md. at 444 , 863 A.2d 976 (emphasis supplied). The Supreme Court went on, 384 U.S. at 445 , 86 S.Ct. 1602 : The constitutional issue we decide in each of these cases is the admissibility of statements obtained from a defendant questioned while in custody or otherwise deprived of his freedom of action in any significant way. (Emphasis supplied). The Court stressed again the triggering mechanism.

An understanding of the nature and setting of this in-custody interrogation is essential to our decisions today. Id. (emphasis supplied). The Supreme Court emphasized the psychological dangers associated with custodial interrogation.

Again we stress that the modern practice of in-custody intewogation is psychologically rather than physically oriented. 384 U.S. at 448 , 86 S.Ct. 1602 (emphasis supplied). The drum beat continued as to the corrosive effect of custodial inteiTogation on the will to resist. Even without employing brutality, the “third degree” or the specific stratagems described above, the very fact of custodial interrogation exacts a heavy toll on individual liberty and trades on the weakness of individuals. 384 U.S. at 455-56 , 86 S.Ct. 1602 (emphasis supplied). A confession obtained through custodial interrogation cannot be deemed to be voluntary.

Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice. ⁵²² 384 U.S. at 458 , 86 S.Ct. 1602 (emphasis supplied). Custodial interrogation is incompatible with the Fifth Amendment privilege. The question in these cases is whether the privilege is fully applicable, during a period of custodial interrogation. 384 U.S. at 460-61 , 86 S.Ct. 1602 (emphasis supplied). It was clear that the inherent evil of custodial interrogation was the thing that the prophylactic rules of Miranda- were designed to guard against.

An individual swept from familiar surroundings into police custody, surrounded by antagonistic forces, and subjected to the techniques of persuasion described above cannot be otherwise than under compulsion to speak. As a practical matter, the compulsion to speak in the isolated setting of the police station may well be greater than in courts or other official investigations, where there are often impartial observers to guard against intimidation or trickery. 384 U.S. at 461 , 86 S.Ct. 1602 (emphasis supplied). What then of the custodial interrogation in this case? The Issues Before Us The appellant frames too narrowly what he perceives to be the issue before us as exclusively that of “interrogation.” He relies on the fact that the State has already “conceded” that the sub-element of “custody” was established.

We perceive, however, the appellant’s proper argument to be that, as he stood in the living room of his Westminster apartment on the evening of June 7, 2006, he was in a position to claim the Fifth Amendment privilege against compelled self-incrimination and that he was, therefore, entitled to Miranda’s implementing rules that protect that privilege. We understand the State’s position to be that the privilege was not available to the defendant because of the lack of the element of compulsion and that the prophylactic protection of Miranda was, therefore, inapplicable to his situation. The entitlement of a criminal defendant to claim the Fifth Amendment privilege generally and the establishment of ⁵²³ the constituent element of compulsion specifically are ultimate constitutional facts with respect to which we are enjoined to make our own independent de novo judgment, without regard to any ostensible concession. Thompson v. Keohane, 516 U.S. 99, 112-13 , 116 S.Ct. 457 , 133 L.Ed.2d 383 (1995); McAvoy v. State, 314 Md. 509, 514-15 , 551 A.2d 875 (1989); Ashe v. State, 125 Md.App. 537, 549 , 726 A.2d 786 (1999); Bond v. State, 142 Md.App. 219, 227 , 788 A.2d 705 (2002); Allen v. State, 158 Md.App. 194, 229 , 857 A.2d 101 (2004).

Even under Miranda’s bright line short cut—that custodial interrogation is presumptively compelling—the issue before us remains that of whether the element of compulsion was thus established. In assessing the element of compulsion, we will look for ourselves at both sub-elements of custody and interrogation. The factual background bearing on both sub-elements was fully developed at the suppression hearing. The suppression hearing judge, to be sure, concluded that custody had been established, but we must make our own independent assessment in that regard.

The fact that the State itself conceded that the appellant was in custody tells us only that the State failed to appreciate the significant doctrinal difference between a seizure of the person for Fourth Amendment pui’poses and custody as a necessary precondition for Miranda’s very existence. Jones v. State, 132 Md.App. 657, 665-66 , 753 A.2d 587 (2000). 11 As we examine the phenomenon of compulsion for ourselves, we will not be precluded from looking at either or both of its bright line sub-elements. What the State conceded to be custody was not, as a matter of law, Miranda custody, which is our only concern. ⁵²⁴ The appellant, of course, would like to believe that the issue of custody is no longer on the table. He would like to rely on the finding of custody by the trial judge and the concession of custody by the State.

He could then treat custody as an axiomatic abstraction, attributing to it, in the course of his argument, the most lurid characterizations of custody to be found in the caselaw. We will not, however, with the glib assurance of a Gertrude Stein, simply assume that custody is custody is custody. It is, rather, a phenomenon that fluctuates in severity and in coercive force. Sometimes the assessment of custody can be hermetically sealed off from the assessment of interrogation.

On other occasions, however, they blend imperceptively into each other. Prolonged custody is not the same factor in an equation that custody for a split second might be, yet the blanket assertion that “custody existed” makes no distinction between the two. In a case such as this in which one of the acts of the police that is alleged to have been the functional equivalent of interrogation occurred in the very split second that non-custody may have ripened into custody, the catalytic influence of custody is by no means a foregone conclusion. This case illustrates the value of thinking in terms of the Fifth Amendment privilege itself with its indivisible element of compulsion, rather than of thinking in terms of the mere implementing rule, which seems to fragment compulsion into airtight sub-compartments of custody and interrogation.

If the appellant allegedly succumbed to the functional equivalent of interrogation because of the debilitating pressures of custody, we would like to know whether the succumbing came after 45 minutes of custody or after only a nanosecond of custody. Neither the hearing judge’s generic finding nor the State’s ostensible concession helps us in that regard. We will not, therefore, be forestalled from taking a hard look for ourselves at the issue of custody in this case. What Precisely is Miranda Custody?

After pointing out generically the evils of “custodial interrogation,” the Miranda opinion began to address the practical ⁵²⁵ problem of defining just what “custody” consisted of. What precise circumstances would pull the trigger for the whole Miranda enterprise? 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. 384 U.S. at 444 , 86 S.Ct. 1602 (emphasis supplied). That was, however, hardly an A + effort.

To define “custody” as a person’s status “after a person has been taken into custody” is to define the word in terms of itself. The other prong of the disjunctive definition was to be “otherwise deprived of his freedom of action in any significant way.” The phrase “in any significant way” is treacherously open-ended. Would being asked to come to the station house and then being questioned behind closed doors qualify? Would a traffic stop qualify?

Would a Terry stop on the street, with or without an attendant frisk, qualify? It is hard to imagine a defense attorney who could not bring a client’s most minor embarrassment or stress or discomfort within the purview of the phrase. The Ur-text obviously did not resolve all future doubt. 12 That, however, is one reason why appellate courts remain in business. Our understanding of Miranda custody would evolve only slowly over the course of several decades.

What Miranda Itself Sought to Counteract Because the Miranda opinion had so much else to do, it is understandable that it did not define “custody” more precisely. Rome was not built in a day. Although its passing and casual definition of “deprived of his freedom of action in any significant way” may have been hopelessly vague, Miranda nonetheless did detail in lurid page after lurid page the almost Inquisitorial police practices that impelled the extraordinary relief of the Miranda catechism. ⁵²⁶ There were four separate cases consolidated into the Miranda opinion. Chief Justice Warren described how “in each, the defendant was questioned ... in a room in which he was cut off from the outside world.” 384 U.S. at 445 , 86 S.Ct. 1602 . “They all thus share salient features—incommunicado interrogation of individuals in a police-dominated atmosphere.” Id. “The difficulty in depicting what transpires at such interrogations stems from the fact that in this country they have largely taken place incommunicado.” Id. “In a series of cases decided by this Court ..., the police have resorted to physical brutality—beating, hanging, whipping—and to sustained and protracted questioning incommunicado in order to extort confessions.” 384 U.S. at 446 , 86 S.Ct. 1602 . “Interrogation still takes place in privacy.

Privacy results in secrecy and this in turn results in a gap in our knowledge as to what in fact goes on in the interrogation rooms.” 384 U.S. at 448 , 86 S.Ct. 1602 . For seven full pages in the United States Reports, 384 U.S. at 449-55 , 86 S.Ct. 1602 , the Miranda opinion then quoted from a wide assortment of police interrogation manuals about effective techniques to break down an arrestee’s will to resist. All four Miranda defendants had been arrested and questioned in secret. “In other settings, these individuals might have exercised their constitutional rights. In the incommunicado police-dominated atmosphere, they succumbed.” 384 U.S. at 456 , 86 S.Ct. 1602 .

The type of problem that Miranda was designed to deal with was clear. “[GJiven this background, we concern ourselves primarily with this interrogation atmosphere and the evils it can bring.” Id. “In each of the cases, the defendant was thrust into an unfamiliar atmosphere and run through menacing police interrogation procedures.” 384 U.S. at 457 , 86 S.Ct. 1602 . “The current practice of incommunicado interrogation is at odds with one of our Nation’s most cherished principles—that the individual may not be compelled to incriminate himself.” 384 U.S. at 457-58 , 86 S.Ct. 1602 . It was thus the very raison d’etre of Miranda , rather than its limp definition of “custody,” that could be counted upon to ⁵²⁷ hold the concept of custody in reasonably tight rein in the years that immediately followed Miranda . The Beckwith-Mathiason Seedtime What some now see as a clash between two different definitions of “custody” was no clash at all but simply the byproduct of that gradual evolution of our understanding of Miranda custody. Twice in the first eleven years, the Supreme Court gave indications that it was going to hold a firmer rein on the concept of “custody” than its original vague definition might have presaged.

Beckwith v. United States, 425 U.S. 341, 347 , 96 S.Ct. 1612 , 48 L.Ed.2d 1 (1976), made it clear that police focus on a suspect does not render an interview with that suspect a custodial one. An interview with Government agents in a situation such as the one shown by this record simply does not present the elements which the Miranda Court found so inherently coercive as to require its holding. Although the “focus” of an investigation may indeed have been on Beckwith at the time of the interview in the sense that it was his tax liability which was under scrutiny, he hardly found himself in the custodial situation described by the Miranda , Court as the basis for its holding. The question of whether a police interrogation was custodial so as to engage the gears of Miranda arose in Oregon v. Mathiason, 429 U.S. 492 , 97 S.Ct. 711 , 50 L.Ed.2d 714 (1977), a case in which a burglary suspect was asked to come to the station house where he was interrogated.

The Supreme Court of Oregon reversed the conviction, holding that the interrogation was custodial and that the failure to give Miranda warnings was, therefore, fatal. “We hold the interrogation took place in a ‘coercive environment.’ The parties were in the offices of the State Police; they were alone behind closed doors; the officer informed the defendant he was a suspect in a theft and the authorities had evidence incriminating him in the crime; and the defendant was a parolee under supervision. We are of the opinion that this evidence is not overcome by the ⁵²⁸ evidence that the defendant came to the office in response to a request and was told he was not under arrest .” 275 Or. 1 , 549 P.2d 678 , 675. The Supreme Court of the United States reversed, holding that every coercive influence does not add up to Miranda custody. Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime..

But police officers are not required to administer Miranda warnings to everyone whom they question. 429 U.S. at 495 , 97 S.Ct. 711 (emphasis supplied). Why Miranda Did Not Deal With Terry To observe that Miranda in 1966 did not in any way deal with what we now call the Terry-level of lesser police-citizen encounters is a truism. Terry v. Ohio (1968) had not yet been decided and would not be decided for another two years. The very concept of less intrusive restraints' on a citizen’s freedom of movement, a subject that has become a major growth industry in the decades since Terry, had not yet dawned on the legal horizon.

Forty-three years later, the distinction between formal arrest or its equivalent, on the one hand, and traffic stops and Terry stops, on the other hand, is our most prominent criterion for distinguishing Miranda’s applicability from Miranda’s inapplicability. If Miranda’s language in 1966 did not adequately anticipate the problem by making fine distinctions then, it was because the problem, as a practical matter, did not yet realistically exist. There really was not that much to distinguish in 1966. The Beheler-Berkemer Reformulation The quest for greater certainty as to the meaning of Miranda custody had to wait for 17 years after Miranda’s promulgation for any significant movement forward.

In California v. Beheler, 463 U.S. 1121 , 103 S.Ct. 3517 , 77 L.Ed.2d ⁵²⁹ 1275 (1988), the Supreme Court reversed a holding by the California Court of Appeals that a thirty-minute questioning of a murder suspect at the station house was “custodial” for purposes of Miranda applicability. [WJe have explicitly recognized that Miranda warnings are not required “simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect.” 463 U.S. at 1125 , 103 S.Ct. 3517 . In determining Miranda custody, the Beheler Court focused upon the fact of formal arrest or its equivalent. For the first time, the Supreme Court caselaw provided a more certain criterion. 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.

Id. (emphasis supplied). For the first time, therefore, greater certainty was possible in the assessment of when custody was present and when, therefore, Miranda applied. See Richard Williamson, The Virtues (and Limits) of Shared Values: The Fourth Amendment and Miranda’s Concept of Custody, 1993 U. Ill.

L.Rev. 379, 392 (“[T]he Court used the Beheler opinion as the vehicle for announcement of a more definite definition of Miranda’s concept of custody”). See also United States v. Rith, 164 F.3d 1323, 1332 (10th Cir.1999) (The Supreme Court “clarified” the custody standard in Beheler.). As a brief per curiam opinion, decided without benefit of oral argument. Beheler was, to be sure, a low profile case.

Higher celebrity for the new criterion was assured one year later, however, with Berkemer v. McCarty, 468 U.S. 420 , 104 S.Ct. 3138 , 82 L.Ed.2d 317 (1984). Berkemer provided, for the first time, what is now the most significant and most frequently litigated distinction in the law of Miranda custody. It is the distinction between non-custodial traffic stops and other ⁵³⁰ non-custodial Terry stops, on the one hand, and formal custodial arrest or its equivalent, on the other hand. Berkemer now precludes defendants’ arguments, based on earlier and not yet refined definitions, that they were in Miranda custody simply because they were deprived of their freedom of movement or were not “free to leave.” Those are not, if they ever were, the criteria of arrest or of Miranda custody, as this Court took pains to point out in Carter v. State, 143 Md.App. 670, 677 , 795 A.2d 790 (2002): The appellant solemnly insists that he “was not free to leave.” Of course, he