State v. Rucker

Dissenting Opinion by

BELL, C.J.,

in which ELDRIDGE, J., joins.

The majority errs in the case sub judice because it does not give the proper amount of deference to the trial court’s determination, inherently fact-based, appropriately affirmed by the Court of Special Appeals,1 that, when questioned by the *223police, Terrence Michael Rucker, the respondent, had been detained, was in custody, which detention “for all intents and purposes” was “an arrest.” Instead, the majority substitutes its judgment for that of the trial court and “finds” that no custodial interrogation took place warranting the giving of Miranda warnings. Moreover, of great significance to it is the fact that the respondent’s incriminatory admission was in response to a single question asked by one of the detectives during a “Terry stop.” Thus, the majority “hold[s] that Rucker was not in custody for purposes of Miranda when he was stopped and questioned in the shopping center parking lot and so was not entitled to the procedural warnings prescribed by that case.” State v. Rucker, 374 Md. 199, 207, 821 A.2d 439, 443 (2003). Viewed in their entirety, and in context, I am satisfied that the events that occurred in the parking lot of the shopping mall, and especially the manner in which the stop was orchestrated and effected, did far exceed an investigatory Terry stop. Thus, I agree with the trial court and the intermediate appellate court, the evidence seized from the respondent must be suppressed.2 Accordingly, I dissent

I.

As the majority correctly points out, an appellate court’s review of an order granting a motion to suppress evidence ordinarily is “limited to the evidence presented at the suppression hearing.” See 374 Md. at 207, 821 A.2d at 443, (quoting Carter v. State, 367 Md. 447, 457, 788 A.2d 646, 651 (2002), which in turn cited Ferris v. State, 355 Md. 356, 368, 735 A.2d 491, 497 (1999)). And, while, as the majority points out, id. at *224207, 821 A.2d at 444, “[w]e make an independent constitutional evaluation by reviewing the relevant law and applying it to the unique facts and circumstances of the case,” Carter, 367 Md. at 457, 788 A.2d at 651 (citing Wilkes v. State, 364 Md. 554, 569, 774 A.2d 420, 429 (2001); Stokes v. State, 362 Md. 407, 414, 765 A.2d 612, 615 (2001); In re Tariq A-R-Y, 347 Md. 484, 489, 701 A.2d 691, 693 (1997)), as the majority further acknowledges, “we pay deference to the trial court’s factual findings, upholding them unless ‘they are clearly erroneous.’ ” Id., citing Carter v. State, 367 Md. at 457, 788 A.2d at 651-652. Furthermore, we are required to view the evidence and the inferences that reasonably may be drawn therefrom in the light most favorable to the prevailing party on the motion. Id., citing Cartnail v. State, 359 Md. 272, 282, 753 A.2d 519, 524 (2000). As I shall demonstrate, the majority all but disregards these principles in practice; it pays only lip service to them in deciding this case.

Miranda warnings need not be given before asking the defendant any questions unless the defendant is in custody. In Miranda, the Court characterized “custodial interrogation” as “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 v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 706 (1966). Thus, the threshold inquiry, and determination, in every case involving the issue of the propriety of giving or not giving Miranda warnings is whether there was, in that case, a custodial interrogation. Whitfield v. State, 287 Md. 124, 137-38, 411 A.2d 415, 423-24 (1980). “[T]he inquiry,” we have said, “is a highly fact-specific one,” Ferris v. State, 355 Md. 356, 377, 735 A.2d 491, 502 (1999), and the test, an objective one, involves assessing the totality of the circumstances of an encounter or interrogation from the perspective of a reasonable person. Id. at 376, 735 A.2d at 501; Whitfield, 287 Md. at 139, 411 A.2d at 425. Factors that may be probative when applying the test in the context of the case sub judice were recently identified and discussed in Ferris:

*225“the time and place of the encounter, the number of officers present and whether they were uniformed, whether the police removed the person to a different location or isolated him or her from others, whether the person was informed that he or she was free to leave, whether the police indicated that the person was suspected of a crime, whether the police retained the person’s documents, and whether the police exhibited threatening behavior or physical contact that would suggest to a reasonable person that he or she was not free to leave.”

355 Md. at 377, 735 A.2d at 502, citing United States v. McCarthur, 6 F.3d 1270, 1275-76 (7th Cir.1993); United States v. Gray, 883 F.2d 320, 322 (4th Cir.1989).

To be sure, as we acknowledged in Ferris, 355 Md. at 374, 735 A.2d at 500, “a seizure does not occur simply because a police officer approaches an individual and asks a few questions.” Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991). On the other hand, Bostick recognizes, id. at 437, 111 S.Ct. at 2387, 115 L.Ed.2d at 400, as have we, that “[i]f the police, in some way, communicate to a reasonable person that he or she was not free to ignore the police presence and go about their business, then the Fourth Amendment is implicated.” Ferris, 355 Md. at 375, 735 A.2d at 501. We have explained:

“A seizure can occur by means of physical force, or show of authority along with submission to the assertion of authority. [California v.] Hodari D., 499 U.S. [621,] 625-26, 111 S.Ct. [1547,]1550 [,113 L.Ed.2d 690, 696-697 (1991)] (noting that police officers could affect a seizure of a person by either physical force or by a show of authority along with submission to the assertion of authority); see Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968) (‘Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a “ ‘seizure’ has occurred.’ ”). If a reasonable person would have felt free to leave, no seizure occurred. Conversely, if a reasonable person would have felt compelled to stay, a seizure took *226place. The focus, then, is ‘whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.’ Bostick, 501 U.S. at 436, 111 S.Ct. at 2387. The key inquiry has also been characterized as whether ‘the police conduct would “have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.’ ” Id. at 437, 111 S.Ct. at 2387 (quoting Michigan v. Chesternut, 486 U.S. 567, 569, 108 S.Ct. 1975, 1977, 100 L.Ed.2d 565 (1988)).”

Id. at 375-76, 735 A.2d at 501. We made a similar point, albeit under quite different circumstances, in Whitfield. In that case, we observed that custody for Miranda purposes exists: “ ‘[i]n the absence of actual arrest, [when] something [is] said or done by the authorities, either in their manner of approach or in the tone or extent of their questioning, which indicates that they would not have heeded a request to depart or to allow the suspect to do so.’ ” 287 Md. at 140-41, 411 A.2d at 425, quoting United States v. Hall, 421 F.2d 540, 545 (2d Cir.1969).

Detectives Powell and Piazza, having come to the shopping mall parking lot where the respondent was, and his vehicle parked, and rather than stopping the respondent themselves, summonsed a uniformed officer who was in the vicinity in his patrol car, and had him to do so. The manner in which that officer made the stop and the detectives’ subsequent appearance and involvement are quite telling and instructive. The uniformed officer, Corporal Grimes, parked his patrol car behind the respondent’s vehicle. As the respondent was about to get into the driver’s side of his vehicle, Corporal Grimes called to him to get his attention and then walked up to him, demanding the respondent’s license and registration. Naturally wanting to know why a uniformed officer would demand his license and registration when he was not operating the vehicle, the respondent responded, “what’s going on.” Rather than respond to that reasonable question, the Corporal simply repeated the prior demand. The respondent gave the corporal his license and registration. After Corporal Grimes had the respondent’s license and registration, Detectives Powell *227and Piazza came on the scene. Detective Powell “walked right up” to within two feet of Rucker “and started asking him questions,” while Detective Piazza, “maybe a step behind” Detective Powell remained in the immediate area, as did Corporal Grimes. It was under these circumstances that the respondent responded to Detective Powell’s inquiry whether “he had anything that he was not supposed to have,” with an incriminating, “yes, I do, it’s in my pocket,” later identifying “it” as cocaine.

Having heard the testimony and having had the opportunity to assess the witnesses’ credibility, the trial judge found:

“Detective Grimes was not involved in the case directly. He was summonsed to the scene to go ahead and make a stop.... I use the word stop because that’s what happened: he confronted Mr. Rucker as Mr. Rucker was getting into his vehicle, asked him to basically step outside, regardless of how it’s stated, provide license and registration. And as Detective Powell testified, that was apparently being done when Detective Powell approached the defendant. Detective Rucker we know-or Detective Powell has testified, as did Officer Grimes, that Officer Grimes was in uniform at the time and clearly one can assume, although its not testified to, that he was armed at the time, albeit, we know nobody had drawn a weapon.
“While Detective — Officer Grimes had the defendant in his presence, Detective Powell approached the defendant, and at this point in time says something to the effect do you have something on your person that you’re not suppose to, at which point in time the defendant says yes. And we know from this point, forward the defendant’s person was seized after he confided that he had cocaine on his person.”

As we have seen, the trial judge concluded that the respondent had been, for all intents and purposes, arrested. In short, the court determined that the respondent was in custody when Detective Powell asked the question that elicited the incriminatory response. The Court of Special Appeals essen*228tially agreed, quibbling only with whether a stop, properly limited and effected, could have been made.

Whether a suspect is in custody, has been arrested or subjected to a de facto arrest is inherently a question of fact, properly decided by the trial court. In McAvoy v. State, 314 Md. 509, 551 A.2d 875 (1989), the issue, raised at the suppression hearing, was whether Miranda warnings were required to be given to a drunk driving defendant before he was asked to perform field sobriety tests. Id. at 510, 551 A.2d at 875. We accepted the finding of the trial judge that the defendant was not “in custody” for purposes of Miranda when the tests were conducted, noting that the trial court heard conflicting testimony bearing on the issue, resolving the conflicts in that testimony in favor of the State. Id. at 514, 551 A.2d at 877. This was required by well settled principles: the credibility of a witness is primarily for the trier of fact to decide, and findings of fact of a trial judge are accepted unless clearly erroneous. Id. at 514-515, 551 A.2d at 877, citing Maryland Rule 8-131(c).3 We recognized, however, citing In Re Anthony F., 293 Md. 146, 152, 442 A.2d 975, 979 (1982), that “[ajrmed with the facts properly found by the trial judge, we must ... make an independent constitutional appraisal of the record to determine the correctness of the trial judge’s decision concerning custody.” McAvoy, supra, 314 Md. at 515, 551 A.2d at 877-878 (emphasis added).” The majority agrees with the McAvoy approach, indeed, relies on it, having cited to that case with approval, on this very point.

In the instant ease, whether the respondent was in custody when he made the incriminatory remark was the critical issue to be decided at the suppression hearing. Detective Powell and Corporal Grimes testified at that suppression hearing. In *229this case, because there was no actual arrest until after the recovery of the cocaine, the question to be answered was whether the circumstances were such that a reasonable person would have felt that he or she was in custody. After, evaluating the testimony adduced at the hearing, the trial judge found that the respondent was in custody, thus either rejecting that which supported that he was not or drawing inferences from the evidence that supported the factual conclusion that the trial judge made. Put another way, the trial judge found that the officers’ conduct in the parking lot exceeded the scope of an investigatory stop under Terry, and was, in actuality, a de facto arrest, thus triggering the respondent’s entitlement to Miranda warnings. The trial court’s determination is entitled to deference and, in any event, should not easily be ignored.

Although it professes to do so, the majority fails to accept the trial court’s findings of fact and, in fact, views the sequence of events surrounding the respondent’s arrest quite differently than did the trial court. As characterized by the majority, the police-respondent encounter was not at all coercive:

“Rucker was subjected to a brief investigatory stop; his freedom of movement was not curtailed to a degree associated with a formal arrest. Rucker was not isolated in a police-dominated atmosphere when he was questioned by police. Indeed, it was 5:20 in the evening in the public parking lot of a local shopping center. Additionally, the detention was brief. According to Detective Powell, the entire incident, beginning when the detectives picked up the informant and ending when Rucker gave his statement, lasted less than one hour. There were three officers on the scene, but Corporal Grimes stepped away from Rucker when Detectives Powell and Piazza approached. Although the Corporal did take Rucker’s license and registration, their return was not conditioned upon Rucker’s cooperation with the police, and no officer ever told- Rucker that he would not return the documents. Further, of the three officers, only one of them asked Rucker a single question *230before he admitted to having cocaine, namely, whether he had anything that he should not have. Moreover, no officer drew any weapons, and Rucker was not handcuffed or actually physically restrained until after he admitted to having cocaine.”

374 Md. at 220-21, 821 A.2d at 452. According to the majority, therefore:

“Rucker’s detention was more like a routine traffic stop than an arrest,4 and after the stop he was not, as stated by the Supreme Court in [Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984)], ‘subjected to treatment that render[ed] him “in custody” for practical purposes,’ which would have ‘entitled him to the full panoply of protections prescribed by Miranda.’ Indeed, the question asked of him was no more coercive than asking a motorist whether he or she has been drinking or is in possession of weapons or drugs, which are permissible to ask without Miranda warnings.”

Id. at 221, 821 A.2d at 452 (citation omitted).

Thus, rather than as a demand, as the trial court undoubtedly construed it, the majority characterizes the directive from Corporal Grimes to the respondent as a request, a characterization that it continues to use even when Corporal Grimes utterly failed to respond to, and, in fact, ignored, the respondent’s request for an explanation. The majority emphasizes that, when the police approached, no vehicle was occupying the space in front of the respondent’s vehicle, that Detective Piazza, Detective Powell’s partner, “had stepped away from Rucker,” that, although uniformed and armed, Corporal Grimes’ weapon was not drawn, and he “made no physical *231contact with” the respondent and that “the entire incident ... from the time we picked up the source” lasted no more than one hour. In addition, that the police had possession of the respondent’s license and registration is deemed unimportant because, the majority surmises, there being no statement by the police to that effect, “their return was not conditioned upon Rucker’s cooperation with the police, and no officer ever told Rucker that he would not return the documents.” The majority, in other words, views the evidence in the light most favorable to the State, rather than the respondent, the prevailing party on the motion.

Notwithstanding that they are never determined to be clearly erroneous, the majority all but ignores, and certainly does not apply, the facts as found by the trial court, and undoubtedly critical to its determination that the stop was tantamount to an arrest: the respondent was stopped by a uniformed officer under orders from the detectives; his license and registration were in the possession of Corporal Grimes and, so, he was a captive; his vehicle was partially blocked by Corporal Grimes’ police cruiser; his inquiry as to what was going on was ignored; he was “surrounded” by three police officers; and he was not told he was free to leave.

I think it is abundantly clear, having accepted and reviewed the facts found by the trial court and considering the totality of the circumstances, that the respondent never thought for a moment that he was free to leave or could refuse to answer Detective Powell’s questions. Today’s holding is yet one more step in the erosion of the right to be free from unlawful searches and seizures guaranteed by the Fourth Amendment and the Maryland Declaration of Rights. Over time, the gradual eroding of constitutional freedoms portend serious consequences for individual liberty. Over one-hundred years ago, Mr. Justice Bradley writing for the Court warned:

“It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the *232rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more of sound than in substance. It is the duty of the courts to be watchful for the constitutional rights of the citizens, and against any stealthy encroachments thereon.”

Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524, 535, 29 L.Ed. 746, 754 (1886).

Doing my part to prevent further erosion of those protections, I would affirm the judgment of the Court of Special Appeals, which affirmed the judgment of the Circuit Court for Prince George’s County.

Judge ELDRIDGE joins in the views expressed herein.

. The Court of Special Appeals did not agree entirely with the trial court’s reasoning, however. In its unreported opinion, the intermediate appellate court held that, although the initial stop was based on "a reasonable articulable suspicion” and, thus, pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), "the events in the shopping mall parking lot exceeded an investigatory stop under Teny, and became the functional equivalent to a da facto arrest,” requiring that the warnings prescribed in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) be given before questioning of the respondent began. By contrast, the trial court concluded that "there was no basis for Detective Powell to go up to the defendant's person and start making inquiry without first mirandizing him.” This conclusion was based on the following factual findings:

"Detective Grimes was not involved in the case directly. He was summonsed to the scene to go ahead and make a stop.... I use the word stop because that’s what happened: he confronted Mr. Rucker as Mr. Rucker was getting into his vehicle, asked him to basically step outside, regardless of how it’s stated, provide license and registration. And as Detective Powell testified, that was apparently being done when Detective Powell approached the defendant. Detective Rucker we know-or Detective Powell has testified, as did Officer Grimes, that Officer Grimes was in uniform at the time and clearly one can assume, although its not testified to, that he was armed at the time, albeit, we know nobody had drawn a weapon.
"While Detective — Officer Grimes had the defendant in his presence, Detective Powell approached the defendant, and at this point in time says something to the effect do you have something on your person that you're not supposed to, at which point in time the defendant says yes. And we know from this point, forward the *223defendant’s person was seized after he confided that he had cocaine on his person.”

Thus, the intermediate appellate court and the trial court agreed on the issue of whether there was an arrest.

. The State conceded at the suppression hearing that there was nothing that the respondent did or said that elevated the reasonable and articulable suspicion to probable cause. In fact, the State admits that the respondent's incriminatory statement is the sole basis for his arrest and subsequent search.

. Maryland Rule 8-131(c) provides

"(c) Action Tried Without a Jury. When an action has been tried without a jury, the appellate court will review the case on both the law and the evidence. It will not set aside the judgement of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of witnesses.”

. Clearly, the stop of the respondent is distinguishable from a routine traffic stop. The respondent was stopped and ordered to produce identification before even entering, not to mention operating, his vehicle. His wanting to know what was going on was, therefore, understandable and required an answer. At least as important, routine traffic stops typically do not result in the arrival of plain clothed detectives, to whom the stopping officer defers upon their initiation of questioning.