Brown v. State

Terrance J. Brown v. State of Maryland, No. 64, September Term, 2015. Opinion by
Hotten, J.

CRIMINAL PROCEDURE — FIFTH AMENDMENT — ENTITLEMENT TO
MIRANDA WARNINGS — DETERMINATION OF CUSTODY FOR PURPOSES
OF MIRANDA: The Court of Appeals determined Petitioner was in custody for Miranda
purposes when: (1) Petitioner was approached by detective during early morning hours at
the hospital where Petitioner was being treated for multiple gunshot wounds; (2) detective
told Petitioner that detective’s purpose in coming to the hospital was to “obtain” Petitioner;
(3) detective transported Petitioner from the hospital directly to the police station where
Petitioner was interrogated; (4) Petitioner was told by detective that Petitioner’s car had
been seized by police because of dried blood found in the car; (5) Petitioner was escorted
directly to second floor of police department into an isolated interrogation room upon his
arrival at the police station; (6) Petitioner was transported in rear seat of a marked police
cruiser; (7) Petitioner was wearing hospital garb with his head still bandaged during the
interrogation; and (8) Petitioner was formally arrested following the interrogation. Based
on these facts, a reasonable person in Petitioner’s position would not have felt at liberty to
terminate the interrogation and leave. The totality of the circumstances of Petitioner’s
interrogation demonstrated that the restraint on Petitioner’s freedom of movement was to
the degree associated with a formal arrest. Thus, the trial court properly granted
Petitioner’s motion to suppress his statements.
Circuit Court for Dorchester County
Criminal Case No. 09-K-14-015442
Argued: March 31, 2016
Reargued: October 13, 2016

IN THE COURT OF APPEALS
OF MARYLAND

No. 64

September Term, 2015
______________________________________

TERRANCE J. BROWN

v.

STATE OF MARYLAND

______________________________________

Barbera, C.J.,
*Battaglia,
Greene,
Adkins,
McDonald,
Watts,
Hotten,

JJ.
______________________________________

Opinion by Hotten, J.
Barbera, C.J. and McDonald, J., dissent.
______________________________________

Filed: March 27, 2017

*Battaglia, J., now retired, participated in the
initial hearing and conference of the case while
an active member of this Court; after being
recalled pursuant to Md. Constitution, Article
IV, Section 3A, she also participated in the
rehearing, decision, and adoption of this opinion.
 The case at bar is an interlocutory appeal filed by the State1 from an Order in the

Circuit Court for Dorchester County, granting Terrance J. Brown’s motion to suppress

statements obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602

(1966). The Court of Special Appeals, in an unreported opinion, reversed. We granted

Brown’s petition for writ of certiorari, and after briefing and argument, ordered that this

matter be remanded, without affirmance or reversal, to the suppression court for the sole

purpose of the entry of findings of fact on the issue of custody. After receipt of the

suppression court’s findings, supplemental briefing, and reargument, we consider one

question—whether Brown was in custody for Miranda purposes during the interrogation

that took place at the Cambridge Police Department before Brown was provided with

Miranda warnings. We shall hold that a reasonable person in Brown’s circumstances

would not have felt free to terminate the interrogation and leave. The totality of the

circumstances demonstrated that the restraint on Brown’s freedom of movement was to the

degree associated with a formal arrest. Further, Brown was subjected to an environment

that contained the inherently compelling pressures of custodial interrogation, which

powered the Supreme Court’s decision in Miranda. Thus, Brown was in custody for

purposes of Miranda during the time period at issue. The trial court properly suppressed

Brown’s statements.

1
See Md. Code Ann., Cts. & Jud. Proc. § 12-302(c) (2013 Repl. Vol., 2016 Supp.)
(providing for the State’s right of appeal from the suppression of evidence, under certain
circumstances).
 I. FACTS AND PROCEDURAL HISTORY

Brown was charged with two counts of first-degree murder and related charges in

the Circuit Court for Dorchester County. The charges stemmed from a shooting that

occurred outside the Elks Lodge in Cambridge, Maryland during the early morning hours

of October 5, 2014. Later that day, Brown made statements to police during an

interrogation at the Cambridge Police Department. Brown filed a motion to suppress those

statements. At the suppression hearing, Trooper Greg Fellon, Detective Edward Howard,

and Detective Chris Flynn testified for the State. Brown did not testify and called no

witnesses. The factual background that follows is derived from the suppression court’s

factual findings, together with reference to undisputed evidence presented at the

suppression hearing.2

During the early morning hours of October 5, 2014, Trooper Fellon was on routine

patrol and monitoring radio traffic dispatches. He learned of a reported shooting at the

Elks Lodge in Cambridge. At 1:06 a.m., a Dorchester County dispatch broadcasted that an

unknown male in an unknown vehicle had called 911. The unknown male stated on the

911 call that he was injured, driving from Cambridge to Hurlock Village Apartments, and

2
The first-level factual findings of the suppression court and the court’s conclusions
regarding the credibility of testimony must be accepted by this Court unless clearly
erroneous. Thomas v. State, 429 Md. 246, 259, 55 A.3d 680, 688 (2012). As further
outlined herein, after consideration of the briefs, record, and oral arguments in this matter,
on April 4, 2016, this Court ordered that this matter be remanded, without affirmance or
reversal, to the suppression court for the sole purpose of the entry of findings of fact on the
issue of custody.

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he “didn’t want to go to jail.”3

Trooper Fellon established an observation position near Hurlock Village

Apartments. Trooper Fellon observed “what he believed to be the vehicle of interest[.]”

Trooper Fellon observed a man exit that vehicle. After the man left Trooper Fellon’s line

of vision, Trooper Fellon approached the car and initiated contact with the three remaining

passengers in the car. When one of the occupants opened the passenger side door, Trooper

Fellon testified that he observed dried blood in the passenger area.

Trooper Fellon asked the occupants about the man who had previously exited the

car. Trooper Fellon testified that the occupants replied that they had gone to Cambridge to

“pick up T.J. Brown and bring him home to his mother’s [house]” in the Hurlock Village

complex.

Two additional Maryland State Police Troopers and a Dorchester County Deputy

arrived at the scene. Thereafter, Brown’s mother drove into the complex. Trooper Fellon

requested that she ask her son to come outside to speak with him. She agreed, and Brown

came outside. Trooper Fellon observed that Brown was wearing a shirt with blood on it,

and he had blood dripping from his earlobe. Brown told Trooper Fellon that “he had been

at a party in Cambridge when he heard gunshots. Upon hearing the gunshots . . . he began

to duck and run.” The police officers summoned emergency medical personnel to the

scene. Regarding his observations of Brown’s gunshot wounds, Trooper Fellon testified

3
Unless otherwise noted as (1) testimony presented at the suppression hearing or
(2) quotations from Detective Flynn’s interview of Brown, all quoted factual information
is derived from the suppression court’s findings of fact.

-3-
that Brown “had a nick to his earlobe[,]” “a graze to his shoulder blade area and what

appeared to be like a through and through [gunshot wound] on . . . his upper chest.”

At approximately 1:55 a.m., Brown was transported from Hurlock to Peninsula

Regional Medical Center in Salisbury, Maryland for treatment. The information gained

during the course of Trooper Fellon’s investigation, including that Brown was struck by

gunfire, was communicated to members of the Cambridge Police Department. Trooper

Fellon was then advised that the Cambridge Police Department had arranged for a tow

truck to pick up Brown’s vehicle. Within twenty minutes of Brown’s transport to the

hospital, the tow truck arrived and removed the vehicle to the police station. “At the request

of superiors, Detective Howard of the Cambridge Police Department traveled to Peninsula

Regional Medical Center[]” to meet with Brown, who was awaiting discharge.

Detective Howard arrived at the hospital at approximately 5:40 a.m. Detective

Howard testified that he “advised [Brown] that the lead investigator Detective Flynn was

interested in obtaining his story for his side of the events being he was a victim of that

shooting.” The suppression court noted that Detective Howard further “advised [Brown]

that his purpose [at the hospital] was to ‘obtain’” Brown “and ask him if he would consent

to coming back” to the Cambridge Police Department “to ‘get[]’ a statement.” Detective

Howard’s badge and weapon were visible and his gun was secure throughout the

interaction.

Detective Howard transported Brown in a marked police car directly from the

hospital to the Cambridge Police Department. Brown was seated in the rear passenger

-4-
seat. Brown was not handcuffed. He was wearing disposable shirt-and-pants hospital

scrubs and boots. His head was bandaged.

The suppression court found that “Detective Howard advised [Brown] numerous

times that he was not under arrest, but never advised him that he was free to refuse

transportation back to the Cambridge Police Department.” The court further stated:

Although [Brown] acquiesced to traveling back to Cambridge and at no time
articulated that he did not want to go, he did express concern about how he
would get home, especially after being advised once he was in the police car
that his vehicle had been taken to the Cambridge Police Department after
Tpr. Fellon found blood in the vehicle. Detective Howard assured [Brown]
that the proper arrangements would be made.

Upon arrival at the police department, Detective Howard entered through a door in

the north tower located “apart from the entrance for the general public. Detectives Flynn

and Curran were waiting for Detective Howard and [Brown] on the second floor.” Brown

was then taken to an interview/interrogation room. The suppression court described the

interview/interrogation room:

[Brown] was seated in an interview/interrogation room which is located on
the second floor of the Cambridge Police Department adjacent to the
Criminal Investigation Division office area. The interrogation rooms are
equipped with both audio and video recording. . . . The interview room is
situated such that there is no view outside of the police headquarters and it is
not easy to traverse from that location to the outside without guidance and in
some instances the use of electronic access devices.

The door to the interview room was closed except when police personnel entered and exited

the room. The suppression court found that “[Brown] was left alone in the room for

approximately 15 minutes before Detective Flynn appeared for the interview.” Detective

Flynn was the sole interviewer. The suppression court noted that “[a]t no time from the

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beginning of the interview until [Brown] was told he was being arrested for homicide was

he told that he was free to leave.” The interview was video-taped and transcribed.

Eventually, Brown was issued Miranda warnings and provided a written statement.

Relevant here is the exchange between Detective Flynn and Brown that occurred during

the approximately six minutes of interrogation4 that preceded the detective’s issuance of

Miranda warnings.5

Detective Flynn began the interrogation by seeking Brown’s side of the story:

Do you know why you’re here? Obviously you’re here, right? I just got to
get your end -- your side of the story of what happened, how you got involved
-- do you know what I’m saying -- what went on. So just start (inaudible) --
start at the beginning and walk me through it.

In response, Brown placed himself at the crime scene: “I’m outside chilling outside the

Elks.” He added that he heard “[a]bout six or seven” shots; the shots were “hitting where

[he] was at[]”; and he “got the hell out of there[,]” realizing once he was in his car that he

had been shot. Detective Flynn then asked: “So where did you -- which way did you run

after this whole thing?” Brown responded: “Well, I was parked -- I ran directly towards

4
The State does not dispute that the statements at issue before us—those that Brown
made to Detective Flynn during the six minutes before the detective advised him of his
Miranda rights—were the product of interrogation. See Argueta v. State, 136 Md. App.
273, 284, 764 A.2d 863, 869 (2001) (holding that the test to be applied in determining
whether express questioning constitutes an interrogation for Miranda purposes is whether
the police officer should know that the questioning is reasonably likely to elicit an
incriminating response). At issue before us is whether Brown was in custody for purposes
of Miranda during the six minutes of interrogation preceding the advisement of rights.
5
The record contains a video recording of the interrogation that reflects the passage
of time. We can discern from the video that Detective Flynn issued Miranda warnings
approximately six minutes into the interrogation.

-6-
my car where my car was parked (inaudible) shooting. I was going towards the Legion

where the little church is at behind the pool hall.” Detective Flynn asked, “So you ran

towards Cross Street?” and Brown replied, “Yeah. I got in my car.” Detective Flynn asked,

“You got in your car, and then you what, drove yourself to Hurlock?” And again Brown

responded, “Yeah.” Detective Flynn then asked: “And sometime along that [ride] -- did

you call the ambulance yourself, or how did that work?” Brown answered, “Yeah. I called

them myself because I didn’t know if I was going to initially make it to Hurlock.”

Detective Flynn testified that, at that point, he viewed Brown as a suspect and

decided to issue Miranda warnings. When Detective Flynn told Brown that he would be

advising him of his rights, Brown asked, “What, I’m under arrest?” and Detective Flynn

replied, “No. You’re not under arrest.” After the warnings were issued, Brown asked

multiple times if he could go home and stated that he was tired.

Based on the above, the suppression court made second-level, “[d]ispositional”

findings:

Because [Brown], who at the very least was a person of interest in the
homicide, was met by a police officer immediately upon his discharge from
the hospital, placed in the backseat of a police car, delivered to police
headquarters, placed in an isolated interrogation room on the second floor
inside the building and never advised he was free to leave, and had no
apparent means to leave, the Court finds that in light of the totality of the
circumstances, a reasonable person in [Brown’s] position would not have felt
at liberty to leave and thus was in custody.

The suppression court did not discredit any part of the detectives’ testimony and none of

the court’s findings of fact depart in any material way from their testimony.

-7-
 The State appealed the circuit court’s grant of Brown’s motion to suppress

statements. On direct appeal in the Court of Special Appeals, the State argued that the

suppression court erred in granting suppression of the statements Brown made to Detective

Flynn before the detective advised him of his Miranda rights.6 The State contended that

the suppression court had incorrectly determined that, from the outset of the interrogation,

Brown was in custody for purposes of Miranda. The Court of Special Appeals agreed and

reversed the ruling of the suppression court in an unreported opinion.

Brown filed a petition for writ of certiorari, posing the following questions for our

review:

1. Pursuant to the “supplemental rule of interpretation,” where a motions
court makes a legal determination, such as finding custodial interrogation
took place, without making factual findings, must an appellate court fill in
the fact-finding gaps by giving little or no weight to the losing party’s
evidence, discrediting the losing party’s witnesses, and resolving any
ambiguities and drawing all inferences in favor of the prevailing party?

2. In reversing a suppression ruling, may an appellate court rely on a fact on
which conflicting evidence was presented below or must the court accept the
version of facts most favorable to the prevailing party?

3. What effect does a motions judge’s failure to make factual findings to
support its legal conclusion that custodial interrogation took place have on
the parameters of the appellate court’s review where conflicting versions of
events necessitating factual findings were not presented at the motions
hearing?

4. Did the intermediate appellate court err in reversing the motions court’s
granting of petitioner’s suppression motion by finding that petitioner was not

6
As noted, Detective Flynn read Brown the Miranda warnings between six and
seven minutes into the interrogation. Brown then indicated a desire for counsel. The
interrogation did not cease and the court suppressed the statements Brown made during
this latter part of the interrogation. The State has not challenged that aspect of the
suppression court’s ruling.

-8-
 in custody for purposes of Miranda where, after being awake all night,
petitioner was taken from the hospital in hospital garb with his head
bandaged and complaining of pain from four gunshot wounds directly to the
police department by an armed detective who testified that petitioner did not
“put up a fight or refuse to come” in the back seat of a marked police car
where petitioner was told that his car had been towed to the police station
because there was blood in it, petitioner was never told that he was free to
leave, he was delivered to a door to the police station that leads directly to an
interrogation room with two-way glass rather than through the front door of
the station, he was interrogated with an accusatory tone from the outset that
leaves no doubt that the detective viewed him as a suspect, and he was
arrested at the conclusion of the interrogation?

(footnotes omitted). We granted the petition and agreed to consider all four questions.

Brown v. State, 445 Md. 125, 126 A.3d 3 (2015).

We considered oral arguments on March 31, 2016. On April 4, 2016, we issued an

Order of Remand for the suppression court to render findings of fact regarding whether

Brown was in custody for purposes of Miranda during the interrogation before Detective

Flynn provided Brown with Miranda warnings. We also directed the parties to submit

supplemental briefs on the custody issue following this Court’s receipt of the suppression

court’s findings of fact. On May 4, 2016, the Circuit Court for Dorchester County issued

written findings of fact. The parties filed supplemental briefs in light of those findings,

and we heard reargument on October 13, 2016.

Because the suppression court has now issued findings of fact, the first three

questions presented, upon which we granted review, are moot. We therefore address only

whether Brown was in Miranda custody during all or any portion of the six minutes that

elapsed between the beginning of the interrogation and the point at which he was given the

Miranda advisements. For the reasons that follow, we hold that Brown was in custody for

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purposes of Miranda for the entirety of the interrogation that preceded Miranda warnings.

Thus, the circuit court did not err in granting Brown’s motion to suppress his statements

made to police. Accordingly, we reverse the judgment of the Court of Special Appeals.

II. STANDARD OF REVIEW

In conducting our review of the suppression court’s grant of Brown’s motion to

suppress, “we view the evidence and inferences that may be reasonably drawn therefrom

in a light most favorable to the prevailing party on the motion,” here, Brown. Lee v. State,

418 Md. 136, 148, 12 A.3d 1238, 1245–46 (2011) (citation omitted). We accept the

suppression court’s first-level findings unless they are shown to be clearly erroneous. Md.

Rule 8-131(c). “We, however, make our own independent constitutional appraisal, by

reviewing the relevant law and applying it to the facts and circumstances of this case.”

State v. Luckett, 413 Md. 360, 375 n. 3, 993 A.2d 25, 33 n. 3 (2010) (citation and quotation

marks omitted).

III. DISCUSSION

In its seminal decision in Miranda v. Arizona, the Supreme Court held that an

individual in custody must be informed of certain rights prior to being interrogated so that

he or she is not compelled to incriminate himself or herself in violation of the Fifth

Amendment. 384 U.S. 436, 467–68, 86 S.Ct. 1602, 1624–25 (1966). The State does not

dispute the fact that the statements at issue before us—those that Brown made to Detective

Flynn during the six minutes before the detective advised him of his Miranda rights—were

the product of interrogation. Thus, the issue before this Court is whether Brown was in

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custody for purposes of Miranda during the interrogation, prior to the detective’s

advisement of rights.

The Fifth Amendment of the United States Constitution provides that “[n]o person

. . . shall be compelled in any criminal case to be a witness against himself.” U.S. CONST.

amend. V. In Dickerson v. U.S., the Supreme Court affirmed that Miranda is indeed a

“constitutional decision,” and thus, the enforcement of Miranda’s procedural safeguards,

which protect the constitutional guarantee, is not merely an exercise of the Supreme

Court’s “supervisory authority to regulate evidence.” 530 U.S. 428, 429–32, 120 S. Ct.

2326, 2329 (2000). The Fifth Amendment is made applicable to the states by incorporation

under the Fourteenth Amendment. U.S. CONST. amend. XIV; Malloy v. Hogan, 378 U.S.

1, 8, 84 S.Ct. 1489, 1493–94 (1964). In Maryland, a confession may be admitted against

an accused only when it has been “determined that the confession was ‘(1) voluntary under

Maryland non-constitutional law, (2) voluntary under the Due Process Clause of the

Fourteenth Amendment of the United States Constitution and Article 22 of the Maryland

Declaration of Rights,[7] and (3) elicited in conformance with the mandates of Miranda.’”

Ball v. State, 347 Md. 156, 173–74, 699 A.2d 1170, 1178 (1997) (quoting Hof v. State, 337

Md. 581, 597–98, 655 A.2d 370, 378 (1995)).

The Miranda Court reacted to police interrogation tactics within the “inherently

compelling pressures” of custodial police interrogation, which can “undermine the

7
Article 22 of the Declaration of Rights provides “[t]hat no man ought to be
compelled to give evidence against himself in a criminal case.”

- 11 -
individual’s will to resist and . . . compel him to speak where he would not otherwise do

so freely.” Id. at 467, 86 S.Ct. at 1624. The Court recognized that the inherently coercive

atmosphere of custodial interrogation “blurs the line between voluntary and involuntary

statements[.]” Dickerson, 530 U.S. at 435, 120 S.Ct. at 2331. To counteract this risk of

compulsion, the Court “adopted a set of prophylactic measures designed to safeguard the

constitutional guarantee against self-incrimination.” J.D.B. v. North Carolina, 564 U.S.

261, 269, 131 S. Ct. 2394, 2401, 180 L. Ed. 2d 310 (2011). Prior to questioning, a suspect

“must be warned that he has a right to remain silent, that any statement he does make may

be used as evidence against him, and that he has a right to the presence of an attorney,

either retained or appointed.” Miranda, 384 U.S. at 444, 86 S.Ct. at 1612; see also Vines

v. State, 285 Md. 369, 374, 402 A.2d 900, 903 (1979) (noting that statements obtained from

a defendant not advised of Miranda warnings must be excluded from evidence if the

statements flow from a custodial interrogation within the meaning of Miranda).

A. The definition of custody for purposes of Miranda

A determination of whether an individual is in Miranda custody is an objective

inquiry based on the totality of the circumstances. Stansbury v. California, 511 U.S. 318,

323, 114 S.Ct. 1526, 1529 (1994); Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711,

714 (1977); Beckwith v. United States, 425 U.S. 341, 346–47, 96 S.Ct. 1612, 1616 (1976).

In deciding whether an individual is in custody for purposes of Miranda, we must

determine, in light of “the objective circumstances of the interrogation,” Stansbury, 511

U.S. at 323, 114 S.Ct. at 1529, whether a “reasonable person [would] have felt he or she

was not at liberty to terminate the interrogation and leave.” Thompson v. Keohane, 516

- 12 -
U.S. 99, 112, 116 S.Ct. 457, 465 (1995). Thus, we determine an individual’s freedom of

movement objectively in light of the totality of circumstances of the situation, taken as a

whole. See Yarborough v. Alvarado, 541 U.S. 652, 667, 124 S.Ct. 2140, 2151 (2004);

Stansbury, 511 U.S. at 322–23, 114 S.Ct. at 1529; accord Owens v. State, 399 Md. at 428,

924 A.2d at 1095; see also Ransome v. State, 373 Md. 99, 104, 816 A.2d 901, 904

(2003) (stating that a court conducting a “totality of the circumstances” test must not “parse

out each individual circumstance for separate consideration[]”). Facts often relevant to our

analysis include:

when and where [the interrogation] occurred, how long it lasted, how many
police were present, what the officers and the defendant said and did, the
presence of actual physical restraint on the defendant or things equivalent to
actual restraint such as drawn weapons or a guard stationed at the door, and
whether the defendant was being questioned as a suspect or as a witness.
Facts pertaining to events before the interrogation are also relevant,
especially how the defendant got to the place of questioning whether he came
completely on his own, in response to a police request or escorted by police
officers. Finally, what happened after the interrogation whether the defendant
left freely, was detained or arrested may assist the court in determining
whether the defendant, as a reasonable person, would have felt free to break
off the questioning.

Thomas v. State, 429 Md. 246, 260–61, 55 A.3d 680, 689 (2012) (citations omitted).

Not all restraints on freedom, however, constitute custody for Miranda purposes.

Berkemer v. McCarty, 468 U.S. 420, 437, 104 S.Ct. 3138, 3148 (1984) (declining to grant

the freedom of movement test “talismanic power”). Thus, “[o]nce the scene is set and the

players’ lines and actions are reconstructed, the court must apply an objective test to resolve

the ultimate inquiry: was there a formal arrest or restraint on freedom of movement of the

degree associated with a formal arrest.” Thompson, 516 U.S. 99, 112, 116 S. Ct. at 465

- 13 -
(emphasis added) (citations, quotation marks, and brackets omitted). Thus, “the safeguards

prescribed by Miranda become applicable as soon as a suspect’s freedom of action is

curtailed to a ‘degree associated with formal arrest.’” Berkemer, 468 U.S. at 440, 104 S.

Ct. at 3150. Furthermore, the lodestar of our objective test is whether Brown was subjected

to an environment containing the inherently compelling pressures of custodial

interrogation, which powered the Court’s decision in Miranda. See id. at 437, 104 S.Ct. at

3148–49 (stating that “[f]idelity 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.”).

B. The case at bar

Brown argues that the factual findings rendered by the suppression court fully

support the ruling that Brown was in custody for Miranda purposes during the interrogation

at issue. We agree. A reasonable person in Brown’s position would not have felt free to

terminate the interrogation and leave. Furthermore, we determine that Brown’s freedom

was restrained to the degree associated with a formal arrest.

The following facts support this conclusion: Brown was taken to the hospital to treat

multiple gunshot wounds; Detective Howard came to the hospital and advised Brown that

his purpose in coming to the hospital was to “obtain” Brown; Detective Howard arrived at

the hospital to collect Brown at approximately 5:40 a.m.; Detective Howard transported

Brown directly from the hospital in hospital garb with his head still bandaged; Brown was

transported in the rear seat of a marked police cruiser; Brown was told that his car was

towed to the police station because of dried blood on the passenger side; Detective Howard

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escorted Brown through the north tower door of the police department, which is located

apart from the entrance for the general public; Brown was placed in an isolated

interrogation room upon his arrival, where he was subsequently interrogated; and Brown

was arrested at the conclusion of the interrogation.

The parties dispute how this Court should review the suppression court’s finding

that Detective Howard “ask[ed] [Brown] if he would consent to coming back to ‘get[]’ a

statement[]” and, in response, Brown “acquiesced[.]” Brown argues that the suppression

court’s choice of words reflects that Brown felt compelled to acquiesce in the face of a

coercive show of authority. The State counters that the words “consent” and “acquiesce[]”

are largely synonymous, and thus, Brown was not compelled to accompany the detective

to the police station.

“[W]e view the evidence and inferences that may be reasonably drawn therefrom

in a light most favorable to the prevailing party on the motion,” here, Brown. Lee, 418

Md. at 148, 12 A.3d at 1245–46 (2011) (emphasis added) (citation and internal quotation

marks omitted). The suppression court’s factual finding of “acquiesce[nce]” is

substantially different than voluntary agreement, within the totality of the circumstances:

the time, place, and manner of the acquiescence. Brown’s acquiescence took place early

in the morning, at the hospital where Brown was being treated for gunshot wounds, after a

visibly armed detective arrived to “obtain” Brown for questioning. Viewed in the light

most favorable to Brown, his acquiescence, under the totality of the circumstances,

necessarily indicates a lack of voluntariness, or at the very least, an atmosphere of

compelling pressure. See Miranda, 384 U.S. at 467, 86 S. Ct. at 1624 (providing that the

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express purpose of Miranda’s safeguards is to combat the “inherently compelling

pressures” of custodial interrogation, “which work to undermine the individual’s will to

resist and to compel him to speak where he would not otherwise do so freely.”).

Brown was wearing disposable hospital scrubs when he was escorted from the

hospital facility to the police department and subjected to interrogation. This factor tilts

the interrogation toward the custodial end of the spectrum. See Bond v. State, 142 Md.

App. 219, 233, 788 A.2d 705, 713 (2002) (finding custody for purposes of Miranda where

Bond was interrogated in his bedroom, specifically noting the relevance of the fact that the

interrogation took place while Bond was “partially clothed[,]” in a “state of undress[]”).

We determine that a reasonable person in Brown’s position—an individual in hospital garb,

suffering from multiple gunshot wounds, without his or her vehicle—would feel inhibited

from simply leaving the presence of the police. Furthermore, these circumstances, taken

as a whole, demonstrate that Brown’s freedom of movement was curtailed to the degree

associated with a formal arrest.

Brown was escorted through the north tower door of the Cambridge Police

Department. The suppression court noted that this entrance is “apart from the entrance for

the general public.”8 Thereafter, Brown was seated in an interrogation room. The

8
The State argues that this finding is clearly erroneous, as there is no evidence to
support the suppression court’s finding that the north tower door is apart from the entrance
for the general public. Detective Howard, however, testified at the suppression hearing
that, upon his arrival with Brown at the Cambridge Police Department, he “responded to
the north tower door which in the front parking lot is the main stairwell leading to the
second floor of the Police Department where Detective Curran and Detective Flynn were
waiting outside.” We determine that it is not clearly erroneous for the suppression court to
determine that the north tower door is not an entrance used by the general public.

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suppression court noted that “[t]he interview room is situated such that there is no view

outside of the police headquarters and it is not easy to traverse from that location to the

outside without guidance and in some instances the use of electronic access devices.”9

Notably, the Miranda Court was specifically concerned about providing procedural

safeguards for those who are held incommunicado and cut off from the outside world. See

Miranda, 384 U.S. at 457–58, 86 S.Ct. at 1619. Of course, simply because a person is

interviewed by officers within a police station does not, in and of itself, signify that an

individual is in custody for purposes of Miranda. Mathiason, 429 U.S. 492, 495, 97 S. Ct.

at 714. It is, nonetheless, yet another factor in support of the ultimate conclusion that

Brown was in custody for purposes of Miranda during the six minutes of interrogation that

occurred prior to Miranda warnings in the interrogation/interview room on the second floor

of the Cambridge Police Department. See Miranda, 384 U.S. at 461, 86 S.Ct. at 1621

(holding that “[a]s 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.”).

9
The State contends that the suppression court’s finding regarding the layout of the
police station was clearly erroneous because there was no evidence to support it. Maryland
Rule 5-201(b) allows judges to take judicial notice of facts that are “not subject to
reasonable dispute in that [they are] either (1) generally known within the territorial
jurisdiction of the trial court or (2) capable of accurate and ready determination by resort
to sources whose accuracy cannot reasonably be questioned.” We determine that the layout
of a police station in a jurisdiction which seats one circuit court judge falls within the scope
of Rule 5-201. See Abrishamian v. Washington Med. Group, 216 Md. App. 386, 413–14,
86 A.3d 681, 696–97 (2014) (noting that courts may take judicial notice of categories of
“adjudicative facts” “capable of certain verification” that “run the gamut” including facts
that are known in the geographic area where the case is pending).

- 17 -
 The Supreme Court’s analysis in Howes v. Fields is instructive and provides contrast

to the case at bar regarding the change in circumstances Brown experienced when he was

transported to the police station for questioning. In that case, Fields, a state prisoner, was

escorted from his prison cell by a corrections officer to a conference room where he was

questioned by two policemen about allegations that, before he came to prison, Fields had

engaged in sexual conduct with a 12–year–old boy. Fields, 565 U.S. at 502, 132 S. Ct. at

1185. Fields was never given Miranda warnings. He was questioned between five and

seven hours; was told multiple times he was free to leave; the police were armed; Fields

was not restrained; the conference room door was sometimes open and sometimes shut;

Fields stated multiple times that he no longer wanted to talk to the police but he never asked

to go back to his cell; Fields confessed and the interview ended. Id. at 503, 132 S. Ct. at

1186. The Court ultimately found that this interrogation was not custodial. Id. at 517, 132

S. Ct. at 1194.

The Court emphasized that Fields was already imprisoned when he was taken for

questioning. Given the relatively minute change in his physical environment, Fields’

situation did not present the same inherently compelling pressures contemplated by the

Miranda Court:

A person who is “cut off from his normal life and companions,” [Maryland
v. Shatzer, 559 U.S. 98, 106, 130 S. Ct. 1213, 1220 (2010)], and abruptly
transported from the street into a “police-dominated
atmosphere,” Miranda, 384 U.S., at 456, 86 S.Ct. 1602, may feel coerced
into answering questions. . . . For a person serving a term of incarceration,
we reasoned in Shatzer, the ordinary restrictions of prison life, while no
doubt unpleasant, are expected and familiar and thus do not involve the same
“inherently compelling pressures” that are often present when a suspect is

- 18 -
 yanked from familiar surroundings in the outside world and subjected to
interrogation in a police station. Id. [at 103, 130 S. Ct.] at 1219.

Fields, 565 U.S. at 511, 132 S. Ct. at 1190–91.

Contrastingly, in the case at bar, Brown was not taken from familiar surroundings

in the outside world, nor was he already incarcerated at the time of questioning. More

surprising than being taken from familiar surroundings, Brown was transported by police

in the early morning hours from a hospital where he had been treated for multiple gunshot

wounds, after his vehicle had been seized by police as evidence of a crime. Worse than

being “cut off from normal life and companions,” police transported Brown directly from

the hospital, while Brown still wore hospital scrubs, to a police-dominated setting—the

interrogation room of a police station. Shatzer, 559 U.S. 98, 106, 130 S. Ct. 1213, 1220.

This drastic change in circumstances signifies the “inherently coercive pressures”

contemplated by the Miranda Court. Fields, 565 U.S. at 509, 132 S. Ct. at 1190.

Furthermore, Thomas v. State, 429 Md. 246, 55 A.3d 680 (2012), presents a factual

scenario that is distinguishable from the case at bar. In Thomas, this Court looked to the

Court of Special Appeals’ analysis regarding Thomas’ initial confrontation with police, his

transportation to the police station, and his ability to leave the station:

Here, a police officer called [Thomas] and asked if he could “come down to
the [police] station,” telling him that it had to do with one of his children.
[Thomas] agreed and drove himself to the police station. Although the police
initiated the contact, the record reflects that the police requested [Thomas]’s
presence rather than demanded it, and [Thomas] drove himself to the police
station. These facts do not suggest police coercion or restraint. Indeed, by
driving himself, [Thomas] had the ability to drive himself home if he had
decided to end the interview and leave. The circumstances preceding the
interview weigh against a finding of custody.

- 19 -
Id. at 262, 55 A.3d at 690 (quoting State v. Thomas, 202 Md. App. 545, 570, 33 A.3d 494,

509 (2011)) (internal quotation marks omitted). This Court ultimately affirmed the Court

of Special Appeals’ determination that Thomas was not in custody for purposes of Miranda

at the time he made the statements at issue. 429 Md. at 273, 55 A.3d at 697.

Thomas is distinguishable from the case at bar for several reasons. First, although

both interrogations took place in the stationhouse setting, Thomas’ interrogation occurred

after police called Thomas and invited him to come to the police station. Id. at 262, 55

A.3d at 690 (citing Thomas, 202 Md. App. at 570, 33 A.3d at 509). Contrastingly, Brown’s

interrogation occurred after a detective approached Brown in the early morning hours at

the hospital where Brown was treated for multiple gunshot wounds. Rather than receiving

an invitation by phone, the detective told Brown that the detective’s purpose in coming to

the hospital was to “obtain” Brown. Second, we emphasized that Thomas had travelled to

the police station “of his own volition[.]” Id. at 272, 55 A.3d at 696. Conversely, Brown

“acquiesced” to being transported from the hospital to the police station by Detective

Howard. As we noted, viewed in the light most favorable to Brown, Brown’s acquiescence

signifies resistance, and an atmosphere of compulsion. Third, Thomas drove himself to

the interrogation. Id. at 262, 55 A.3d at 690 (citing Thomas, 202 Md. App. at 570, 33 A.3d

at 509). Brown was transported by police in the backseat of a police cruiser directly from

the police station, while still dressed in hospital garb with his head bandaged. Lastly, in

Thomas, we looked to the Court of Special Appeals’ determination that Thomas was able

to drive himself home, if he decided to terminate the interview and leave. Id. (citing

- 20 -
Thomas, 202 Md. App. at 570, 33 A.3d at 509). Brown was not able to drive himself home

from the police station because his car had been seized as evidence of a crime.

The suppression court’s finding that Brown was “advised . . . numerous times that

he was not under arrest[]” does not alter our ultimate conclusion. We note that the

suppression court also found that Brown was not informed, at the outset of the interrogation

or at any time thereafter, that he was free to leave or free to terminate the interrogation. In

Buck v. State, 181 Md. App. 585, 956 A.2d 884 (2008), the Court of Special Appeals

analyzed circumstances in which an individual was told by police multiple times that he

was “free to leave[.]” Id. at 626, 956 A.2d at 908. In one instance, before Buck agreed to

accompany the officers to the police station, one of the detectives “told Buck that he would

not be under arrest and would be free to leave at any time. [The detective] testified: ‘All he

had to do was say the word and I would bring him home.’” Id. at 598, 956 A.2d at 892.

The Court of Special Appeals reasoned that “when a suspect has been told by the police,

clearly and unequivocally, that he is not under arrest and can leave at any time, but the

contemporaneous conduct of the police has the effect of nullifying that advice, the advice

‘will not carry the day.”’ Id. at 626, 956 A.2d at 908 (emphasis added) (quoting Wayne

LaFave, Criminal Procedure § 66(d), at 737 n. 57 (3d ed. 2007)). The Court of Special

Appeals ultimately found “[a] reasonable person in Buck’s situation would not think,

however, based on the conduct of the officers, that he had the freedom to break off contact

with the police.” Id. at 626, 956 A.2d at 908. Similarly, in the case at bar, based on the

conduct of the officers, a reasonable person in Brown’s position would not have felt free

to break off contact with the police. Further, Brown, unlike Buck, was never told that he

- 21 -
was free to leave, or given the option to break off contact with the police. Given the varying

degrees of police interaction with citizens, we determine a statement that one is “not under

arrest[]” is inherently more compelling than a statement that one is “free to leave.”

Lastly, the fact that Brown was told by police that he was a “victim” does not change

our ultimate conclusion. Similar to our analysis regarding the fact that Brown was told that

he was “not under arrest,” the contemporaneous conduct of the police had the effect of

nullifying the notion that Brown was considered as only a victim. See id. at 626, 956 A.2d

at 908. Brown was “obtain[ed]” from a hospital where he was being treated for multiple

gunshot wounds, his car was confiscated by police as evidence of a crime, and he was

transported by police directly from the hospital to the police station in the early morning

hours while he was still wearing hospital garb with his head bandaged. Upon arrival at the

police station, he was held in an isolated interview room where he was eventually

interrogated. A reasonable person in Brown’s position would not feel as though he or she

was being considered as only a victim within the investigation.

For these reasons, we conclude that Brown was in custody for Miranda purposes

when he made the statements at issue on appeal. Under the totality of the circumstances,

a reasonable person in Brown’s position would not have felt at liberty to break off the

questioning and leave. Furthermore, there was a restraint on Brown’s freedom of

movement to the degree associated with a formal arrest. The circumstances in the case at

bar presented the same concerns as those that powered the Miranda decision. Thus, we

hold that the trial court properly granted Brown’s motion to suppress his statements.

- 22 -
JUDGMENT OF THE COURT OF
SPECIAL APPEALS IS REVERSED. CASE
REMANDED TO THAT COURT WITH
INSTRUCTIONS TO AFFIRM THE
JUDGMENT OF THE CIRCUIT COURT
FOR DORCHESTER COUNTY. COSTS IN
THIS COURT AND THE COURT OF
SPECIAL APPEALS TO BE PAID BY
DORCHESTER COUNTY.

- 23 -
Circuit Court for Dorchester County
Criminal Case No. 09-K-14-015442
Argued: March 31, 2016
Reargued: October 13, 2016
IN THE COURT OF APPEALS
OF MARYLAND

No. 64

September Term, 2015
______________________________________

TERRANCE J. BROWN
v.
STATE OF MARYLAND
______________________________________

Barbera, C.J.,
*Battaglia,
Greene,
Adkins,
McDonald,
Watts,
Hotten,

JJ.
______________________________________

Dissenting Opinion by Barbera, C.J., which
McDonald, J., joins
______________________________________

Filed: March 27, 2017

*Battaglia, J., now retired, participated in the
initial hearing and conference of the case while
an active member of this Court; after being
recalled pursuant to the Constitution, Article IV,
Section 3A, she also participated in the
rehearing, decision, and adoption of this opinion.
 I respectfully dissent. The Court was presented in this case with another opportunity

to apply the principles first set forth in Miranda v. Arizona, 384 U.S. 436 (1966), and

developed in the decades since that landmark decision was issued. The Majority concludes

that Brown was in custody for Miranda purposes. In reaching that conclusion, the Majority

relies on the following facts: Brown was taken to the hospital for treatment of multiple

gunshot wounds; Detective Howard came to the hospital and advised Brown that he was

there to “obtain” him; Detective Howard arrived at the hospital to collect Brown at

approximately 5:40 a.m.; Detective Howard transported Brown directly from the hospital

in hospital garb with his head still bandaged; Brown was transported in the rear seat of a

marked police cruiser; Brown was told that his car was towed to the police station because

of dried blood on the passenger side; Detective Howard escorted Brown through an

entrance to the police station that is located apart from the entrance for the general public;

Brown was placed in an isolated interrogation room upon his arrival; and Brown was

arrested at the conclusion of the interrogation.

The Majority reaches this conclusion by placing great weight on those facts, many

of which do not strongly favor Miranda custody, while de-emphasizing or omitting other

facts that, taken together with the facts the Majority highlights, should lead to a conclusion

that Brown was not in Miranda custody. Those facts include that Detective Howard told

Brown that he was going to the police station to give a statement as a “victim”; Brown was

not handcuffed; Detective Howard repeatedly assured Brown that he was not under arrest;

Brown slept during the ride and appeared to be in only “a little bit of pain”; Detective

Howard told Brown, in response to Brown’s expressed concern about getting himself
home, that proper arrangements would be made; Brown was not restrained at any time

before or during the interrogation; he remained alone in the interview room for only fifteen

minutes before the interrogation began; the sole interrogator, Detective Flynn, was dressed

in plain clothes and was not armed; and Brown gave the statements at issue during the first

six minutes of the interrogation. I am of the opinion that the Supreme Court’s Miranda

jurisprudence, to which this Court is bound, compels a different conclusion than that which

the Majority reaches today. Adherence to the custody analysis as developed by the

Supreme Court in the cases following Miranda leads me to conclude that Brown was not

in Miranda custody at the time he made the statements that are at issue in this appeal.

I

“The Miranda decision is grounded in that portion of the Fifth Amendment to the

Constitution that provides: ‘No person . . . shall be compelled in any criminal case to be

a witness against himself.’”1 Lee v. State, 418 Md. 136, 149 (2011). The Miranda Court,

“intent on ‘giv[ing] concrete constitutional guidelines for law enforcement agencies and

courts to follow,’” implemented “certain procedural safeguards that require police to advise

criminal suspects of their rights under the Fifth and Fourteenth Amendments before

commencing custodial interrogation.” Florida v. Powell, 559 U.S. 50, 59 (2010) (alteration

in original) (citations omitted); see also Lee, 418 Md. at 149 (“One of the Court’s stated

aims in establishing the Miranda rule [was] to ‘assure that the individual’s right to choose

1
This provision of the Fifth Amendment applies to the States through the Due Process
Clause of the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 6 (1964).
2
between silence and speech remains unfettered throughout the interrogation process.’”)

(citation omitted).

“The prophylactic measures developed in Miranda took the form of the now-

familiar warnings that law enforcement personnel must deliver to a suspect before

undertaking any custodial interrogation.” State v. Luckett, 413 Md. 360, 377 (2010).

Among the warnings are that a person subject to a custodial interrogation must be advised

of his right to remain silent, that his statements may be used against him, and that he has a

right to counsel. Id. at 377-78 (citing Miranda, 384 U.S. at 479). Important for present

purposes is the requirement that those warnings be given when a defendant is subject to a

“custodial interrogation.”

The Miranda Court held that the now-well-known warnings are to precede

“custodial interrogation,” by which the Court meant, “questioning initiated by law

enforcement officers after a person has been taken into custody or otherwise deprived of

his freedom of action in any significant way.” Miranda, 384 U.S. at 444. The Miranda

Court did not define what, in this context, “custody” means. The Supreme Court, however,

has done so since then. “As used in our Miranda case law, ‘custody’ is a term of art that

specifies circumstances that are thought generally to present a serious danger of coercion.”

Howes v. Fields, 565 U.S. 499, 508-09 (2012).

Determining custody is a multi-step process. As the Majority recognizes, “the initial

step is to ascertain whether, in light of ‘the objective circumstances of the interrogation,’ a

‘reasonable person [would] have felt he or she was not at liberty to terminate the

interrogation and leave.’” Id. at 509 (citations omitted). Yet, that determination is not the

3
end of the analysis. “Not all restraints on freedom of movement amount to custody for

purposes of Miranda. . . . ‘Our cases make clear . . . that the freedom-of-movement test

identifies only a necessary and not a sufficient condition for Miranda custody.’” Id.

(quoting Maryland v. Shatzer, 559 U.S. 98, 112 (2010)); accord Thompson v. Keohane,

516 U.S. 99, 112 (1995). “[T]he ultimate inquiry is simply whether there [was] a ‘formal

arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.”

California v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam) (quoting Oregon v.

Mathiason, 429 U.S. 492, 495 (1977) (per curiam)).

Miranda custody, moreover, is measured in light of “all of the circumstances

surrounding the interrogation,” Fields, 565 U.S. at 509 (citation omitted), and “must be

determined based on how a reasonable person in the suspect’s situation would perceive his

circumstances,” Yarborough v. Alvarado, 541 U.S. 652, 662 (2004). This test does not

take into account how much the police know about the person being interrogated; those

circumstances are irrelevant to the Miranda custody inquiry. See Beheler, 463 U.S. at

1125. Likewise irrelevant are the subjective beliefs of either the officer(s) conducting the

interrogation or the person being interrogated. Stansbury v. California, 511 U.S. 318, 324-

25 (1994) (per curiam).

II

Brown was not in Miranda custody at the time he made the statements that are at
issue in this appeal.

The Majority places much stock in the court’s use of the word “acquiesced” rather

than “consented” in describing Brown’s response at the hospital to Detective Howard’s

4
request that he “consent to coming back” to the police station to give a statement. The

Majority concludes that, “in the light most favorable to Brown, his acquiescence, under the

totality of the circumstances, necessarily indicates a lack of voluntariness, or at the very

least, an atmosphere of compelling pressure.” Maj. Slip Op. at 15. As support for this

conclusion, the Majority points out that Detective Howard arrived at the hospital in the

early morning hours, was visibly armed, and told Brown that he had been directed to

“obtain” Brown for questioning. Id. The Majority also emphasizes that Brown was dressed

in disposable hospital scrubs and suffering from multiple gunshot wounds, and was without

his vehicle. Id. at 16.

I would not attach the same significance that the Majority does to the suppression

court’s use of the word “acquiesced” in describing Brown’s response to Detective

Howard’s request that he “consent to coming back” to the police station. Even viewed in

the light most favorable to Brown, it is too much an inferential stretch to conclude, from

the suppression court’s use of the word, that the court must have found as a fact that Brown

went against his will with Detective Howard to the police station. Neither do other facts

to which the Majority points—the detective’s use of the word “obtain” and Brown’s

inability to access his vehicle—dictate a different conclusion. We consider those facts, as

we must, in conjunction with the facts that Detective Howard told Brown that he was going

to the police station to give a statement as a “victim”; Brown was not handcuffed; Detective

Howard repeatedly assured Brown that he was not under arrest; Brown slept during the

5
ride and appeared to be in only “a little bit of pain”;2 and, in response to his expressed

concern about getting himself home, the detective told Brown that proper arrangements

would be made. Further, I am of the opinion that Brown’s attire, consisting of disposable

shirt-and-pants hospital scrubs and boots, does not rise to the level of the “state of undress”

discussed in Bond v. State, upon which the Majority relies. Maj. Slip Op. at 16; see Bond

v. State, 142 Md. App. 219, 234 (2002) (concluding that the defendant was in Miranda

custody in part because he was “questioned late at night, in bed, undressed, by three officers

blocking the bedroom door”).

The Majority properly recognizes that police questioning at a station house does not

automatically render an individual in Miranda custody. Maj. Slip Op. at 17; see

Mathiason, 429 U.S. at 495. The Majority states, however, that Brown’s being transported

directly from the hospital to the police station constitutes a “drastic change in

circumstances” signifying the “inherently coercive pressures” Miranda was designed to

protect against. Maj. Slip Op. at 19 (citing Fields, 565 U.S. at 509). Although being

transported from a hospital to the police station is indeed more of a “sharp” change of

circumstances than in Fields, 565 U.S. at 511, where the defendant was questioned while

already serving a prison term, I would not place as much weight on this fact as does the

Majority. Indeed, Brown’s being transported directly from the hospital to the police station

must be considered in combination with the surrounding circumstances. See Thomas v.

State, 429 Md. 246, 260 (2012) (“A court . . . does not parse out individual aspects so that

2
Because Brown did not testify at the suppression hearing, we have only the detective’s
assessment of Brown’s level of pain.
6
each circumstance is treated as its own totality in the application of the law.”). Brown was

told that Detective Flynn wanted to get “his story for his side of the events being he was a

victim of that shooting” and was assured that proper arrangements would be made for his

transportation home. This interaction was entirely consistent with the police officers’

treatment of Brown as a shooting victim from the moment Trooper Fellon met him at the

apartment complex up to and inclusive of the first six minutes of the interrogation, which

is the portion of the interrogation that concerns us. A reasonable person, under the same

circumstances, would not feel effectively under arrest and unable to terminate the

encounter.

Moreover, even if Brown felt he was not free to decline the detective’s request, that

fact alone, or in combination with other facts, viewed in the light most favorable to Brown,

does not demonstrate that he was subject to the “‘restraint on freedom of movement’ of the

degree associated with a formal arrest” that is the hallmark of Miranda custody. Beheler,

463 U.S. at 1125 (quoting Mathiason, 429 U.S. at 495); accord Berkemer v. McCarty, 468

U.S. 420, 440-42 (1984) (not every restraint on movement or nonconsensual encounter

with the police constitutes Miranda custody).

My assessment does not change with the addition of the remaining facts leading up

to and including what occurred during the first six minutes of the interrogation. I consider

that Brown entered the police station through an entrance not used by the general public;

he and Detective Howard were met by Detective Flynn and a second officer; the interview

room was located in an area of the police station inaccessible to the public; and the

interview room was windowless and the door to it closed. I also take into account that

7
Brown was not restrained at any time before or during the interrogation; he remained alone

in the interview room for only fifteen minutes before the interrogation began; the sole

interrogator, Detective Flynn, was dressed in plain clothes and was not armed; and Brown

gave the statements at issue during the first six minutes of the interrogation. Viewed in

their totality, these facts would not lead a reasonable person in Brown’s position to consider

himself effectively under arrest.

The Majority cites Buck v. State, 181 Md. App. 585, 626 (2008), for the proposition

that, “when a suspect has been told by the police, clearly and unequivocally, that he is not

under arrest and can leave at any time, but the contemporaneous conduct of the police has

the effect of nullifying that advice, the advice ‘will not carry the day.’” Maj. Slip Op. at

21. According to the Majority, the “contemporaneous conduct of the police had the effect

of nullifying the notion that Brown was considered as only a victim.” Id. at 22. In Buck,

an officer stated, in Buck’s presence, “I think we got him.” 181 Md. App. at 597. The

next day, officers took Buck in a police cruiser to the police station, where the interrogation

lasted about five hours. Id. at 598-99. Despite being told that he was not under arrest and

was free to leave, “Buck was asked accusatory questions, was told his house was being

searched for evidence in the . . . murder,” and he gave a DNA sample. Id. at 626. The

Court of Special Appeals in Buck concluded that the officers’ conduct had the effect of

“nullifying” the officers’ statements that Buck was not under arrest and was free to leave

largely because the officers communicated to Buck that he was a suspect in the

investigation. See id. at 622, 626.

8
 Unlike in Buck, the record in the case before us gives no indication that the officers

ever communicated to Brown that he was a suspect. Brown acknowledges that the

suppression court made no explicit finding on this score. The most the suppression court

made of the evidence was that, at the time Detective Howard met Brown at the hospital, he

was “at the very least a person of interest in the homicide” and “early in the investigation,”

Brown’s vehicle was referred to as the “suspect” vehicle. For purposes of the custody

analysis, however, when or how the police came to refer to the “suspect” vehicle is of no

consequence given there is no indication that the reference was conveyed to Brown. Added

to those facts are the facts that Detective Howard asked Brown to accompany him to the

police station to make a statement “as a victim,” repeatedly told Brown that he was not

under arrest, and assured Brown that “proper arrangements” would be made for his travel

home. The questions Detective Flynn posed to Brown during the first six minutes of the

interrogation were not accusatory in content. Moreover, the suppression court, which had

the benefit of an audio and video recording of the interrogation, did not find that Detective

Flynn used an accusatory tone in questioning Brown or employed any other intimidating

tactics during those six minutes.

The Majority suggests that the interrogation here was even more custodial than in

Buck because, unlike Buck, Brown was not informed at the outset of the interrogation or

at any time thereafter that he was free to leave or free to terminate the interrogation. Maj.

Slip Op. at 21-22. Tellingly, the Majority does not follow that assertion with a citation to

authority suggesting that the absence of such information indicates Miranda custody, and

we know of none. See Thomas, 429 Md. at 272 (concluding that, “although the police

9
never uttered the talismanic words ‘you are free to go,’” Thomas was not in custody for

Miranda purposes and the circuit court judge erred in granting the motion to suppress); cf.

Ohio v. Robinette, 519 U.S. 33, 35 (1996) (holding, in the Fourth Amendment context, that

a defendant need not be informed that he is “free to go” for his consent to search to be

considered voluntary).

In the end, the facts should not compel the conclusion that Brown was in Miranda

custody during the first six minutes of the interrogation. Beheler, supra, 463 U.S. at 1121,

is materially the same as this case and informs my conclusion. As here, the question before

the Supreme Court was whether Beheler was in Miranda custody when he gave a statement

in response to police questioning. Id. Like Brown, Beheler was interrogated at the police

station soon after the crime occurred. Id. at 1124. Like Brown, Beheler was told he was

not under arrest and “agreed” (in the words of the Supreme Court) to accompany the police

to the stationhouse. Id. at 1122. Beheler had been drinking earlier that day, and was

emotionally distraught at the time of the interrogation. Id. at 1124-25. Brown, though

evidently not “distraught,” complained to Detective Howard of being in “a little bit of pain

from the gunshot wounds, but other than that he seemed fine.” See United States v. Infante,

701 F.3d 386, 397-98 (1st Cir. 2012) (concluding that Infante was not in custody when he

was interrogated in the hospital following medical treatment and noting that, “[d]espite

having received pain medication, Infante was coherent and responsive, showing no sign of

mental impairment”), cert. denied, 133 S. Ct. 2841 (2013). Beheler had been drinking;

Brown, who Detective Flynn said smelled of alcohol, might have imbibed earlier that night,

but according to the detective did not appear to be intoxicated. The Beheler Court

10
concluded that, taken together, the facts of that case did not amount to Miranda custody.

463 U.S. at 1125. See also Spencer v. United States, 132 A.3d 1163, 1168-69 (D.C. 2016)

(holding that a defendant questioned at a police station was not in custody for Miranda

purposes where the defendant was taken to the police station in the back of a police car,

was never left alone but was “never handcuffed or restrained in any way,” was frisked by

the police officer, and was told that he was not under arrest).

In sum, the circumstances, taken together, lead me to conclude that Brown was not

in Miranda custody at the time he made the statements that are at issue in this appeal. I

would therefore affirm the judgment of the Court of Special Appeals, which came to the

same conclusion.

Judge McDonald has authorized me to state that he joins this dissent.

11