Commonwealth v. Turner

LALLY-GREEN, J.,

concurring.

¶ 11 concur in the Majority’s Opinion. I write separately to further discuss the differences between the instant case and ordinary traffic stop cases. Before doing so, and given the fact-specific nature of our inquiry, it is important to recite the facts of the case in detail.

¶2 Officer Torres testified at the suppression hearing as follows. At approximately 8:47 p.m. on October 18, 1998, he arrived at the scene of an accident near 4815 N. 4th Street in Philadelphia. N.T., 4/15/99, at 5. Officer Torres saw the rear of Turner’s car resting against a parked car. Id. at 6. Turner was dozing off and leaning against the driver’s side of his car. Id. at 7. Officer Torres asked Turner if he was all right and whether he had a license. Id. Turner did not respond. Id. Turner then “dozed off again and almost went right into me and that’s when I took him and *977put him in the police vehicle.” Id. at 8. Turner did not smell of alcohol. Id. at 9. At this point, Officer Torres suspected that Turner was driving under the influence of narcotics, and planned to investigate the case as such. Id. at 13. On the other hand, when Officer Torres was asked on redirect the reason for placing Turner in the vehicle, he responded: “he couldn’t barely stand on his own, I didn’t want him to get hurt on the highway.” Id. at 17. The record does not reveal that either person said anything to the other when Officer Torres put Turner in the vehicle.

¶ 3 Pursuant to departmental policy, Officer Torres called his supervisor, Sergeant Cassidy, to the scene to continue the investigation. Id. at 14. Turner waited in the vehicle. The record does not reveal whether the rear doors of the police vehicle had interior handles, such that Turner could have attempted to leave. Nevertheless, when asked, “if [Turner] had gotten out of the car, you wouldn’t have let him run off, right?” Officer Torres responded, “No, I wouldn’t.” Id. at 14.

¶ 4 The record does not reveal how long it took for Sergeant Cassidy to arrive at the scene. When he did, Officer Torres told Sergeant Cassidy about his observations. Id. at 15. Sergeant Cassidy then opened the rear passenger door of the patrol car, and asked questions to determine whether Turner was driving under the influence. Id. at 16. Specifically, Sergeant Cassidy asked Turner what he was taking. Id. at 8. Turner replied that he had taken cough syrup and several pills. Id. at 9. Officer Torres was standing beside Sergeant Cassidy during this questioning. Id. at 16. Thus, the record reveals that Turner was questioned while sitting in a police vehicle, with two uniformed officers standing in front of the only available exit.

¶ 5 The Commonwealth claims that the instant case is functionally indistinguishable from an ordinary traffic stop. During ordinary traffic stops, a motorist is not in “custody” for purpose of Miranda warnings and, therefore, any pre-custody/pre-arrest statements are admissible. Pennsylvania v. Bruder, 488 U.S. 9, 10, 109 S.Ct. 205, 102 L.Ed.2d 172 (1988); Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984).

¶ 6 The Berkemer Court recognized that an ordinary traffic stop does curtail significantly the freedom of action of the motorist (and passengers) in the detained vehicle. Berkemer, 468 U.S. at 436, 104 S.Ct. 3138. The Court pointed out that the motorist, in most states, must stop when the police signal to stop and, once stopped, can not drive away without permission. Id. The Court identified two features of an ordinary traffic stop that mitigate the danger that a person questioned will be induced “to speak where he would not otherwise do so freely” or to feel “completely at the mercy of the police.” Id. at 437-439, 104 S.Ct. 3138.

¶ 7 First, the detention of the motorist is “presumptively temporary and brief.” Id. at 437, 104 S.Ct. 3138. The detention lasts a few minutes in order to permit the police to check the license and registration and to ask the motorist a few questions. Id. This differs from the “stationhouse interrogation, which frequently is prolonged, and in which the detainee often is aware that questioning will continue until he provides his interrogators the answers they seek.” Id. at 438, 104 S.Ct. 3138.

¶ 8 Second, the circumstances associated with the ordinary traffic stop are not such that the motorist feels completely at the mercy of the police. Id.

To be sure, the aura of authority surrounding an armed, uniformed officer and the knowledge that the officer has *978some discretion in deciding whether to issue a citation, in combination, exert some pressure on the detainee to respond to questions. But other aspects of the situation substantially offset these forces. Perhaps most importantly, the typical traffic stop is public, at least to some degree_This exposure to public view both reduces the ability of an unscrupulous policeman to use illegitimate means to elicit self-incriminating statements and diminishes the motorist’s fear that, if he does not cooperate, he will be subjected to abuse.... The fact that the detained motorist typically is confronted by only one or at most two policemen further mutes his sense of vulnerability.

Id. The Berkemer Court then analogized the ordinary traffic stop to a Terry stop rather than a formal arrest. Id. at 439-440, 104 S.Ct. 3138.

¶ 9 In Bruder, a police officer observed that Bruder was driving erratically and had ignored a red light. Bruder, 488 U.S. at 9, 109 S.Ct. 205. After stopping Bruder’s vehicle, the officer smelled alcohol and saw Bruder stumbling. Id. The officer conducted field sobriety tests, including asking Bruder to recite the alphabet. Id. at 9-10, 109 S.Ct. 205. The officer also asked about alcohol. Id. at 10, 109 S.Ct. 205. Bruder said that he had been drinking. Id. When Bruder failed the sobriety test, the officer arrested him and gave him Miranda warnings. Id. The issue in Bru-der was whether Bruder’s pre-arrest statements should be suppressed as the result of custodial interrogation without Miranda warnings. The Supreme Court reaffirmed Berkemer and reannounced that the:

... noncoercive aspect of ordinary traffic stops prompts us to hold that persons temporarily detained pursuant to such stops are not in custody for the purposes of Miranda. ... [Although the stop was unquestionably a seizure within the meaning of the Fourth Amendment, such traffic stops typically are brief, unlike a prolonged station house interrogation. Second, the Court emphasized that trafile stops commonly occur in the public view, in an atmosphere far less police dominated than that surrounding the kinds of interrogation at issue in Miranda itself. The detained motorist’s freedom of action was not curtailed to a degree associated with formal arrest. Accordingly, he was not entitled to a recitation of his constitutional rights pri- or to arrest and his roadside responses to questioning were admissible.1/

Bruder, 488 U.S. at 10, 109 S.Ct. 205 (citations, internal quotations and ellipses omitted).

¶ 10 In Pennsylvania, our Supreme Court has followed the lead of the United States Supreme Court.1 An ordinary traffic stop is not a custodial detention if the detention is consistent with the statutory obligation to stay at the scene and provide required information, and does not involve restraints associated with arrest such as prolonged detention. Commonwealth v. *979Gonzalez, 519 Pa. 116, 546 A.2d 26 (1988); Commonwealth v. Meyer, 488 Pa. 297, 412 A.2d 517 (1980).

¶ 11 In Gonzalez, police asked the defendant driver “what happened” at the scene of a fatal car accident. Gonzalez, 546 A.2d at 28. The officers noticed that Gonzalez was unsteady and swaying, that his eyes were watery and bloodshot, and that he smelled of alcohol. Id. He was then placed under arrest. Id. Our Supreme Court held that Gonzalez, a driver at a traffic stop, was not in “custody” because his freedom was restricted only to the extent of his statutory obligation to stay at the scene and provide required information, and that he was not subject to restraints associated with arrest. Id. at 29-30.

¶ 12 In Meyer, the police investigated an accident at 3:00 a.m. where the only two people at the scene were the defendant and the driver of a tractor-trailer. Meyer, 412 A.2d at 518. The police allowed the tractor-trailer driver to leave the scene, but placed Meyer in a police car for 30 minutes to wait for the state troopers to arrive. Id. When the troopers arrived, the defendant exited the patrol ear and made an incriminating statement to the police. Id. at 519. The Court held that, because of the prolonged detention, Meyer was in custody and his incriminating statement was inadmissible because the police had failed to give Miranda warnings. Id. at 521. The Court stated:

[T]he test of custodial interrogation is whether the individual being interrogated reasonably believes his freedom of action is being restricted. And here, a ‘reasonable belief that freedom of action has been restricted’ surely existed. Corporal Baker expressly told [Meyer] he must wait at the scene. Once the driver of the tractor-trailer left, [Meyer] was the only person not a law-enforcement officer at the scene. Baker closely observed [Meyer] pending the arrival of the State Troopers. Part of that time [Meyer] was in a Carlisle police patrol car. State Police arrived and one of them, Trooper Stine, surveyed the scene and directed [Meyer] to produce an owner’s card and driver’s license.

Id. at 521-522 (citation omitted).2

¶ 13 In Pennsylvania, an ordinary traffic stop is not a custodial detention if it: (1) is consistent with the driver’s statutory obligation to stay at the scene and provide required information; and (2) does not involve restraints associated with arrest. Traffic stops are consistent with the driver’s statutory obligation if they are: temporary and brief but long enough to allow time for the police officer to complete his investigation, including a field sobriety test; and are conducted in the public's view.3 We observe that, in Pennsylvania, *980a driver has a statutory duty to remain at the scene of an accident and to provide certain information. 75 Pa.C.S.A. §§ 3733, 3744-45; Gonzalez, 546 A.2d at 29-30.

¶ 14 Police restraints are comparable to those associated with “arrest” when, under the totality of the circumstances, the conditions and/or duration of the detention are so coercive as to be the functional equivalent of an arrest. See, Commonwealth v. Ellis, 379 Pa.Super. 337, 549 A.2d 1323, 1332 (1988). “An arrest is any act that indicates an intention to take a person into custody and subject him to the actual control and will of the person making the arrest.” Commonwealth v. Edmiston, 535 Pa. 210, 634 A.2d 1078, 1085 (1993). The standard for determining whether police have initiated interrogation during custody is an objective one, viewed under the totality of the circumstances, “with due consideration given to the reasonable impression conveyed to the person interrogated rather than the strictly subjective view of the troopers or the person being seized.” Id. at 1085-1086. The factors that the court considers to determine whether the interrogation has taken place while the defendant is in custody include:

... the basis for the detention; its length; its location; whether the suspect was transported against his or her will, how far and why; whether restraints were used; whether the law enforcement officer showed, threatened or used force; and the investigative methods employed to confirm or dispel suspicions.

Majority Opinion at 973, citing, Commonwealth v. Peters, 434 Pa.Super. 268, 642 A.2d 1126,1130 (1994) (en banc ).

¶ 15 With these principles and authorities in mind, the record reveals that the instant case began as an ordinary traffic stop. Officer Torres arrived at the scene of an accident and, while conducting his investigation, began to ask Turner questions. Turner was standing outside his vehicle. The record reflects that, under a totality of the circumstances, the situation was non-custodial. Officer Torres could question Turner without giving him Miranda warnings.

¶ 16 When Officer Torres placed Turner in the back seat of a police car, with closed doors, for an indeterminate amount of time and without a sufficient non-custodial reason, “custody” under our case law triggered. The record reveals that Officer Torres placed Turner in the back seat of the patrol car and shut the door. Nothing in the record suggests that Turner had any choice in the matter. He was neither free to leave the patrol car nor told he was free to leave the vehicle. His egress from *981the car was completely controlled by the police. His confinement was shielded from public view. He waited in the patrol car for an indeterminate amount of time.4 Finally, when the car door was opened, the two uniformed officers blocked the door exit and began the questioning. Thus, when Officer Torres placed Turner in the back seat of the police car, with closed doors, for an indeterminate amount of time and without a sufficient non-custodial reason, this police action was the functional equivalent of an arrest because Turner was subject to the will and control of the police.

¶ 17 Since the confinement of Turner in the police car was beyond the type of investigative detention permitted by the traffic stop cases, I agree with the Majority that the facts of the instant case, taken as a whole, yield a conclusion that Turner was in custody while confined to the back seat of the patrol car. As such, Miranda warnings were required before the police could legitimately question Turner after Officer Torres placed Turner in the patrol car.

¶ 18 The Commonwealth argues that Turner was placed in the police vehicle for his own safety. Commonwealth’s Brief at 4. The Commonwealth thus urges us to conclude that when a suspect is placed in a police vehicle for his or her own safety, the suspect is not “in custody.” “A policeman’s unarticulated plan has no bearing on the question whether a suspect was ‘in custody1 at a particular time; the only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation.” Berkemer, 468 U.S. at 442, 104 S.Ct. 3138; see also, Commonwealth v. Busch, 713 A.2d 97, 102 (Pa.Super.1998) (en banc ) (“an officer’s knowledge or beliefs may bear upon the custody issue if they are conveyed, by word or deed, to the individual being questioned. Those beliefs are relevant to the extent they would affect how a reasonable person in the position of the individual being questioned would gauge the breadth of his or her ‘freedom of action’ ”), quoting, Stansbury v. California, 511 U.S. 318, 325, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994) (per curiam).

¶ 19 The record reflects that while Officer Torres said his motivation was Turner’s safety, Officer Torres did not convey his motivation to Turner. Indeed, the record fails to reflect that either officer expressed to Turner any concern for Turner’s safety at any time before interrogating him. Rather, the record reflects that Officer Torres placed Turner in the back seat of the police car to wait until Sergeant Cassidy arrived to continue the investigation. (N.T., 4/15/99, at 13-14, 16).

¶ 20 Consequently, Officer Torres’ unar-ticulated concern for Turner’s safety is not relevant to the question whether Turner was “in custody” while in the back seat of the patrol car. Rather, the relevant question is how a reasonable man in Turner’s position would have understood his situation.5 If Officer Torres had articulated his concern to Turner for Turner’s safety (or his health) when he placed Turner in the *982closed patrol car, it is possible that Turner reasonably would have understood his situation not to be one of “custody.”6

¶ 21 Police officers undoubtedly face difficult decisions when they encounter intoxicated or impaired drivers at the scene of accidents. Such drivers may be nearly asleep (as in Turner’s case), or belligerent and threatening. In such cases, it may be necessary to place the driver in the back seat of a patrol car for safety purposes and/or investigative purposes. Nothing in this concurrence should suggest that the police lack the authority or the discretion to place suspects in ordinary traffic stop cases in the back of patrol cars. What is suggested is that, once the police place a suspect in the back seat of a patrol car, in circumstances like those of Turner’s, the police either are: (1) to provide Miranda warnings before beginning any interrogation; or (2) to refrain from any interrogation.

¶ 22 For all of these reasons, I join in the Majority’s Opinion.

¶ 23 KELLY, JOHNSON, JOYCE and MUSMANNO, JJ., have joined this concurring opinion.

. Appellant contends that under Pennsylvania law, a person may be considered "in custody” under conditions which are less restrictive than those associated with an arrest. Appellant’s Brief at 10 n. 2, citing, Commonwealth v. Zogby, 455 Pa.Super. 621, 689 A.2d 280 (1997). In Commonwealth v. Busch, 713 A.2d 97, 99 n. 5 (Pa.Super.1998) (en banc ), this Court rejected this proposition and held that the test for custody in Pennsylvania is whether the defendant is subjected to the functional equivalent of an arrest.

n1 We did not announce an absolute rule for all motorist detentions, observing that lower courts must be vigilant that police do not delay formally arresting detained motorists, and subject them to sustained and intimidating interrogation at the scene of their initial detention.

. Interestingly, the Bruder Court acknowledged Meyer as an example of “an unusual” traffic stop case where Miranda warnings may be required because of the prolonged detention. Bruder, 488 U.S. at 11 n. 2, 109 S.Ct. 205.

. See, Commonwealth v. Proctor, 441 Pa.Super. 176, 657 A.2d 8, 11-12, appeal denied, 542 Pa. 645, 666 A.2d 1054 (1995) (defendant-motorist not in custody when detained at an accident scene for a short time period to allow the police officer to complete his investigation and conduct a field sobriety test because defendant’s freedom of movement was not inhibited in any significant way); Commonwealth v. Leib, 403 Pa.Super. 223, 588 A.2d 922, 931 (1991) (statements of a defendant-motorist were not suppressed because his seizure was not custodial in that it was a temporary detention associated with ordinary traffic stops); Commonwealth v. Sullivan, 399 Pa.Super. 124, 581 A.2d 956, 958 (1990) (defendant-motorist was not in custody when subject to an ordinary traffic stop and not placed under arrest, forced to enter a police patrol car, subjected to coercion, or subject to prolonged questioning); Commonwealth v. Haupt, 389 Pa.Super. 614, 567 A.2d 1074, *9801080 (1989) (traffic stop was investigative detention because the basis for detention was a traffic violation, the stop endured approximately 15 to 20 minutes, the location was a public street, the defendant-motorist was not transported, no restraints were used and the police officer made no show, threat, or use of force); Commonwealth v. Douglass, 372 Pa.Super. 227, 539 A.2d 412 (1988) (two-hour detention held reasonable in traffic stop case involving a fatal car accident because police conducted prompt investigation and detention was not prolonged or without the defendant's consent). See also, Commonwealth v. Toanone, 381 Pa.Super. 336, 553 A.2d 998, 1003 (1989) (defendant-motorist not in custody when questioned about educational background and requested to recite alphabet because motorist was not interrogated for unreasonably long period, forced to enter patrol car, or subjected to any form of undue coercion); Commonwealth v. Anderl, 329 Pa.Super. 69, 477 A.2d 1356, 1361 (1984) (defendant was not in custody where the officer asked questions while defendant was still in his car and where any limitation on defendant’s movement was the result of the accident and not police action). See generally, Commonwealth v. Mannion, 725 A.2d 196, 202 n. 5 (Pa.Super.1999) (era banc ), where this Court overviewed most of the traffic stop cases discussed in this note.

. In this respect, the circumstances of the instant case were even more custodial than those in Meyer because Meyer was taken out of the patrol car before he was questioned.

. The record reflects no evidence that Officer Torres was prevented from placing Turner in Turner’s own vehicle. Some of the coercive aspects of placing Turner in the police vehicle would have been minimized. Of course, in such a case, we would look at the totality of the circumstances to determine whether a suspect who is placed in the back seat of his own car is in "custody” at the time of interrogation.

. Of course, it is equally likely that a reasonable person in the suspect's situation would nevertheless believe he or she is in custody.