STATE v. SCOTT

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. TONY DEANGELO SCOTT, Appellant. ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 7/9/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CR 12-0542 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2011-159606-001 The Honorable Joseph C. Kreamer, Judge The Honorable Patricia A. Starr, Judge Pro Tempore AFFIRMED Thomas C. Horne, Attorney General By Joseph T. Maziarz, Chief Counsel Criminal Appeals Section Attorney for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Margaret M. Green, Deputy Public Defender Attorney for Appellant Phoenix C A T T A N I, Judge ¶1 Tony Deangelo Scott appeals from his convictions and resulting sentences for one count of possession of marijuana and one count of possession of drug paraphernalia. Scott argues the superior court erred by failing to suppress his statements to police because advised of his his initial Miranda 1 confession rights, was made thereby before tainting being both his unwarned and also his subsequent, warned confession. Because Scott initial was not in custody at the time of his incriminating statements, the court did not err and we therefore affirm. FACTS AND PROCEDURAL BACKGROUND 2 ¶2 In August 2011, a Tempe Police detective and officer were dispatched to assist a local hotel in removing Scott and another individual from the premises for smoking in their guest room. and The hotel had requested police assistance because Scott the other individual had been seen with at least one firearm. ¶3 Scott informed the detective that there were two guns in the room. When the detective could find only one, Scott became concerned about the missing gun. Scott indicated the gun might be in his vehicle, and the detective accompanied Scott to 1 Miranda v. Arizona, 384 U.S. 436 (1966). 2 When reviewing the denial of a motion to suppress, we consider only evidence presented at the suppression hearing and view that evidence in the light most favorable to sustaining the superior court s ruling. State v. Zamora, 220 Ariz. 63, 67, ¶ 7, 202 P.3d 528, 532 (App. 2009). 2 the parking lot to help locate the firearm. One other officer later joined them near Scott s vehicle. ¶4 The detective stood two to three feet behind Scott as Scott opened the driver s door. the detective coming from smelled inside. As soon as the door was opened, the distinct The detective odor also of burnt saw the marijuana top of a sandwich style bag in the center console, which Scott opened then closed again quickly. The detective kept his gun holstered and did not touch or attempt to detain Scott at that time. ¶5 Scott turned away from the vehicle, and the detective asked in a conversational burnt marijuana. tone why the vehicle smelled like When Scott did not respond to the question, the detective stated he believed the bag in the center console contained marijuana, and Scott admitted that it did. The detective asked him to retrieve the marijuana, and Scott did so. ¶6 After this initial questioning, the detective Scott verified that Scott s gun was not in the vehicle. 3 and The detective arrested Scott, handcuffed him, and advised him of his Miranda rights, detective. and Scott then agreed to speak with the During this subsequent interrogation, Scott admitted the marijuana belonged to him, explaining that he used marijuana recreationally. According to 3 Scott, the bag contained A hotel security guard later found the gun in the hotel room under the mattress. 3 approximately $10-worth of marijuana, enough for three cigarettes. ¶7 The State charged Scott with possession of marijuana and possession of drug paraphernalia. Before trial, Scott moved to suppress all of his statements to police, arguing that the detective had interrogated Mr. Scott prior to reading Miranda rights, Mirandized him, then continued his interrogation, thus frustrating Miranda impermissible and two-step the Fifth interrogation. Amendment After through briefing an and an evidentiary hearing, the superior court denied the motion to suppress, finding no Miranda violation because Scott was not in custody when questioned prior to receiving Miranda warnings. ¶8 guilty After a one-day bench trial, the court found Scott of imposed both misdemeanor concurrent one-year Scott timely appealed. charges, terms of suspended sentence, unsupervised and probation. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1), 13-4031, and - 4033(A)(1). 4 DISCUSSION ¶9 Scott contends the superior court erred by denying his motion to suppress the statements he made before and after being 4 Absent material revisions after the relevant date, statutes cited refer to the current version unless otherwise indicated. 4 advised of his Miranda rights, arguing the initial unwarned questioning violated Miranda and that his pre-Miranda confession tainted his subsequent statements. U.S. 600 (2004). See Missouri v. Seibert, 542 We review the superior court s denial of a motion to suppress for an abuse of discretion, deferring to its factual findings but considering de novo its legal conclusions. State v. Zamora, 220 Ariz. 63, 67, ¶ 7, 202 P.3d 528, 532 (App. 2009). ¶10 To protect a suspect from the inherently compelling pressures of custodial interrogation, police must first warn an individual in custody of his Fifth Amendment rights to remain silent and to interrogation. the presence of an attorney before initiating Maryland v. Shatzer, 559 U.S. 98, 103-04, 130 S. Ct. 1213, 1219 (2010) (quoting and citing Miranda v. Arizona, 384 U.S. 436, 444, 467 (1966)). warnings is custodial The trigger for these Miranda interrogation. See, e.g., State v. Smith, 193 Ariz. 452, 457, ¶ 18, 974 P.2d 431, 436 (1999). Police are free to ask questions of a person who is not in custody without having to give the person any warnings under Miranda. ¶11 Zamora, 220 Ariz. at 67, ¶ 9, 202 P.3d at 532. An individual is in custody for Miranda purposes if, in light of all the circumstances, there [was] a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. Stansbury v. California, 511 U.S. 318, 5 322 (1994) (alteration in original) (quoting California Beheler, 463 U.S. 1121, 1125 (1983) (per curiam)). v. The test assesses the objective circumstances of the interrogation, not [] the subjective views harbored by either the interrogating officers or the person being questioned, id. at 323, to determine 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, Zamora, 220 Ariz. at 68, ¶ 10, 202 P.3d at 533. of the questioning; Relevant factors include the site whether objective indicia of arrest present; and the length and form of the interrogation. are State v. Cruz-Mata, 138 Ariz. 370, 373, 674 P.2d 1368, 1371 (1983). ¶12 In light of the circumstances surrounding the initial, pre-Miranda questioning, the superior court did not err by concluding Scott was not in custody so as to trigger the need for Miranda warnings. The detective accompanied Scott to the parking lot not as a suspect, but rather to assist Scott in looking for his missing firearm. to Scott in the open-air The detective posed questions parking interview room at the police station. lot, not enclosed in an Neither the detective nor the other officer drew his weapon or touched, handcuffed, or otherwise restrained Scott. Although standing within a few feet of Scott, the detective was not holding Scott against the car, nor was the other officer. The detective presented Scott with 6 three brief queries in a conversational tone, not an extended, accusatory interrogation. These circumstances support the superior court s conclusion that Scott was not in custody during the initial questioning. ¶13 Scott argues the detective s statement during the evidentiary hearing that Scott was not free to leave after the detective smelled Miranda purposes. burnt marijuana establishes custody for But the subjective view of the interrogating officer is not dispositive; the objective circumstances control. See Stansbury, subjective 511 intention U.S. at that 323. Additionally, Scott not leave, despite the a detective testified that he did not attempt to communicate this to Scott either verbally or nonverbally prior to his arrest. See Zamora, 220 Ariz. at 68, ¶ 10, 202 P.3d at 533 (describing test for custody as whether police conduct communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business ). ¶14 Given the circumstances surrounding the detective s initial questions to Scott, the superior court did not err by concluding Scott was not in custody and thus finding no Miranda violation. evidence Moreover, even assuming Scott was in custody, the does not establish that law enforcement officers deliberately engaged in a two-step interrogation technique used in a calculated way to undermine 7 Miranda requirements. See Seibert, 542 U.S. at 621-22 (Kennedy, J., concurring). the initial questioning reasonably arose as a result Instead, of the officer s attempt to locate Scott s missing gun. ¶15 violation Because the initial questioning was not conducted in of Miranda, the subsequent custodial interrogation after Miranda warnings were given was not the product of an impermissible two-step interrogation process, and the court did not err by denying Scott s motion to suppress. CONCLUSION ¶16 For the foregoing reasons, Scott s convictions sentences are affirmed. /S/ KENT E. CATTANI, Judge CONCURRING: /S/ JON W. THOMPSON, Presiding Judge /S/ MICHAEL J. BROWN, Judge 8 and

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