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COURT OF APPEALS DECISION DATED AND RELEASED December 17, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-1860-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
State of Wisconsin,
Plaintiff-Respondent,
v.
Montell Green,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
THOMAS COOPER, Judge. Reversed.
SCHUDSON, J.[1] Montell Green appeals from the judgment of
conviction, following his guilty plea, for possession of marijuana. He argues that the trial court erred in
denying his motion to suppress evidence.
This court agrees and, therefore, reverses the judgment.
I. BACKGROUND
The facts relevant to
resolution of this appeal are not in dispute.
According to the testimony at the suppression hearing, Milwaukee Police
Detective Dennis Gardner assisted in the execution of a search warrant of a
house on the afternoon of July 20, 1995.
The search warrant authorized a search for cocaine, weapons, and related
items. The search warrant did not
authorize the search of all persons on the premises, despite the fact that the
search warrant application had requested such authority. The warrant did authorize the search of a
described but unidentified man, but it is undisputed that Green did not match
that description.
Detective Gardner
explained that he was one of four or five officers assigned to the
“containment” group, which remained outside the residence while numerous other
officers entered the house. As
Detective Gardner approached the house, he saw Green sitting on the front
porch. Although Detective Gardner did
not know whether Green was connected in any way to the suspected drug dealing,
he immediately handcuffed him.
Detective Gardner testified that Green was not free to leave.
Detective Gardner
further testified that he then frisked Green for weapons and that during the
frisk, without providing Miranda warnings, he asked Green if he
had “anything on his person that he shouldn't have.” Green responded, “Yes, I just have some herb on me.” Knowing “herb” as a street term for
marijuana, Detective Gardner then reached into Green's front pants pocket and retrieved
what subsequently was identified as marijuana.
Green concedes that, under
State v. Guy, 172 Wis.2d 86, 492 N.W.2d 311 (1992), cert.
denied, 509 U.S. 914 (1993), even though the search warrant did not
authorize the search of persons on the premises, “[a] pat down frisk would have
been reasonable under the circumstances.”
He argues, however, that:
(1) when he was handcuffed, he was in custody; (2) Detective
Gardner's question constituted a custodial interrogation for which Miranda
warnings were required; and (3) the discovery of the marijuana derived
from his response to Detective Gardner's question.
The
State disputes that Green was in custody and also disputes that Detective
Gardner's question constituted custodial interrogation. Significantly, however, the State does not
argue that the discovery of the marijuana did not derive from Green's response,
or that the marijuana would have been discovered during the frisk regardless of
Detective Gardner's question and Green's response. Therefore, this appeal focuses on whether Green was in custody
and, if so, whether Detective Gardner's question constituted custodial
interrogation.
For Miranda
warnings to be required, a person must be in “custody” and under
“interrogation” by the police. State
v. Mitchell, 167 Wis.2d 672, 686, 482 N.W.2d 364, 369 (1992). This court's review of a trial court’s
conclusions about whether certain undisputed facts establish “custody” and
“interrogation” is de novo. See
State v. Clappes, 136 Wis.2d 222, 235, 401 N.W.2d 759, 765 (1987)
(application of evidentiary or historical facts to constitutional principles
presents questions of law independently reviewed on appeal).
II. CUSTODY
Denying Green's motion
to suppress, the trial court concluded that although “[h]andcuffing him is
getting close to that line,” Detective Gardner's detention of Green did not
cross the line of custody, given the special circumstances and dangers
attendant at a search warrant scene.
This court disagrees.
A person need not be
under formal arrest to be in a custodial status requiring Miranda
warnings. See State v.
Pounds, 76 Wis.2d 315, 322, 500 N.W.2d 373, 377 (Ct. App. 1993). To evaluate whether a person is in custody
for Fifth Amendment Miranda purposes, courts must consider the
totality of the circumstances and determine whether a “reasonable person in the
defendant's position would have considered himself or herself to be ‘in
custody’ given the degree of restraint.”
State v. Swanson, 164 Wis.2d 437, 446-447, 475 N.W.2d 148,
152 (1991). The State points out that Swanson
also states that in many jurisdictions handcuffing “does not necessarily
transform an investigative stop into an arrest.” Id. at 448, 475 N.W.2d at 153. The question here, however, is not whether
Green was under arrest, but rather, whether a reasonable person,
handcuffed, in Green's position, would have considered himself or herself in custody.
Under these
circumstances—handcuffed, frisked and questioned by a police detective at a
search warrant scene with numerous other officers—a reasonable person would
have considered himself or herself to be in custody. As the Seventh Circuit Court of Appeals recently commented in a
case concluding that Stewart, a man handcuffed and frisked near a suspected
drug-dealing location, was in custody for Miranda purposes,
“Stewart was not free to go anywhere.
His movement was curtailed as if he were handcuffed to a chair in a
detective's office or placed in a holding pen in a station house or put behind
bars.” United States v. Smith,
3 F.3d 1088, 1097 (7th Cir. 1993), cert. denied, 510 U.S. 1061
(1994). Similarly, this court concludes
that Green was in “custody.”
III. INTERROGATION
Interrogation is not
only “express questioning, but also ... any words or actions ... that the
police should know are reasonably likely to elicit an incriminating response
....” Rhode Island v. Innis,
446 U.S. 291, 301 (1980); State v. Cunningham, 144 Wis.2d 272,
277-278, 423 N.W.2d 862, 864 (1988).
Obviously, as appellant argues on appeal, “[b]y asking Mr. Green if he
had anything that he should not have, Detective Gardner was asking Mr. Green if
he had any illegal objects or substances on his person.” Here, clearly, not only were Detective
Gardner's words “reasonably likely to elicit an incriminating response,” they
were “express questioning.” Therefore,
Detective Gardner's question was “interrogation.”
IV. CONCLUSION
Because Green was
subjected to a custodial interrogation, Miranda warnings were
required. Because he did not receive
the Miranda warnings, his statement and the evidence derived from
his statement should have been suppressed.
By the Court.—Judgment
reversed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.