State v. Turmel

Brock, C.J., and Nadeau, J.,

dissenting. Because we disagree with the conclusion that the defendant was not in custody and was, therefore, not *386entitled to Miranda warnings, see Miranda v. Arizona, 384 U.S. 436, 444 (1966), we respectfully dissent.

Although the United States Supreme Court has declined to extend Miranda warnings to investigatory stops as well as ordinary traffic stops, see Berkemer v. McCarty, 468 U.S. 420, 440 (1984); see also State v. Graca, 142 N.H. 670, 676 (1998), the instant case does not fit neatly within the ambit of either of these temporary seizures. Rather, it is more properly categorized as a “borderline case” — “one in which the detention at issue has one or two arrest-like features but otherwise is arguably consistent with [an investigatory] stop.” United States v. Acosta-Colon, 157 F.3d 9, 15 (1st Cir. 1998). Thus, “the analysis must revert to an examination of whether the particular arrest-like measures implemented can nevertheless be reconciled with the limited nature of a Terry-type stop.” Id. Based upon a fact-specific inquiry, see id., we do not believe that they can. See State v. Locke, 149 N.H. 1, 6 (2002) (holding that custody is reviewed de novo).

The defendant’s detention differed dramatically from the typical noncustodial traffic stop envisioned in Berkemer. Berkemer, 468 U.S. at 438-39. In that case, the Court held that “[t]he fact that the detained-motorist typically is confronted by only one or at most two policemen further mutes his sense of vulnerability.... [T]he atmosphere surrounding an ordinary traffic stop is substantially less ‘police dominated’ than that surrounding the kinds of interrogation at issue in Miranda itself.” Id. In the instant case, however, the atmosphere surrounding the defendant’s stop was undoubtedly police dominated. The defendant was stopped by three uniformed State troopers driving marked police cruisers, as well as one plain-clothed officer driving an unmarked police truck. See Locke, 149 N.H. at 6 (in determining custody, the court may consider, among other things, number of police officers present); see also State v. Hammond, 144 N.H. 401, 404 (1999) (the fact that officers were not wearing their uniforms, nor were their weapons visible, contributed to a finding of no custody). The police-dominated environment was reinforced by the fact that the police cars physically surrounded the defendant’s vehicle; two cars pulled ahead of his vehicle, while the remaining two pulled in behind it. See People v. Taylor, 41 P.3d 681, 693 (Colo. 2002) (the fact that defendant “was surrounded by armed uniformed police officers and their patrol cars and was essentially encircled ... while the interrogation occurred,” rendered him “completely at the mercy of the police,” and, therefore, in custody (quotations omitted)). Although this atmosphere, “without more, does not lead inexorably to a conclusion that a de facto arrest occurred,” United States v. Lee, 317 F.3d 26, 31 (1st Cir. 2003), it signals, from the *387outset of the stop, that the defendant’s detention was escalating toward arrest.

Moreover, the character of the interview in this case was quite different from that permitted during investigatory stops. See Locke, 149 N.H. at 6 (in determining custody, the court may consider, among other things, interview’s character). Although “[d]uring a detention, an officer may ask the detainee a moderate number of questions ... to try to obtain information confirming or dispelling the officer’s suspicions,” State v. Szczerbiak, 148 N.H. 352, 355 (2002), the interview in this case, from its inception, assumed an intimidating tone and was more indicative of custodial interrogation, which is yet another arrest-like feature. See, e.g., State v. Dorval, 144 N.H. 455, 457 (1999) (the fact that the interview was conducted in an amicable way contributed to a finding of no custody). Once the defendant’s vehicle was stopped, the police immediately employed a divide-and-conquer interrogation strategy in which they separated the defendant and the passenger, taking one to the front of the car while leading the other to the rear. Trooper Mayers then introduced himself as a police officer and told the defendant that he had observed him smoking marijuana. During the hearing on the suppression motion, Trooper Mayers testified that he told the defendant: “I was interested in him cooperating, because I know what I observed.”

While speaking to the defendant, Trooper Mayers also tried to be “clear and concise and right to the point.” He testified: “I wasn’t asking him, I was telling him what I observed, and I know what I observed, and that if he was to cooperate, it would be much - much faster.” In response to a question by Trooper Mayers, the defendant then admitted using marijuana.

This intimidating and coercive exchange comports with the type of tactics against which Miranda warnings were initially designed to protect — “tactics ... designed to put the subject in a psychological state where his story is but an elaboration of what the police purport to know already — that he is guilty.” Miranda, 384 U.S. at 450. Based upon these circumstances, we would hold that the defendant was in custody for purposes of Miranda.

Although the police told the defendant that he was not under arrest, that information was explained to the defendant after he admitted smoking marijuana and, therefore, was conveyed too late to rectify the self-incrimination that occurred during the defendant’s interrogation. Moreover, “police conduct should be judged in terms of what was done rather than what the officer involved may have called it at the time.” State v. Noel, 137 N.H. 384, 388 (1993). Taken together, the police-dominated *388atmosphere and the intimidating questioning of the defendant created precisely the type of inherently coercive environment feared in Miranda. See Miranda, 384 U.S. 457. There can be little doubt that this environment would lead a reasonable person to believe that he is being subjected to restraints on his freedom to such a degree that he is under arrest, see Locke, 149 N.H. at 6, and, as a result, we believe the defendant was in custody.