Unpublished Disposition, 917 F.2d 1307 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 917 F.2d 1307 (9th Cir. 1989)

No. 90-30041.

United States Court of Appeals, Ninth Circuit.

Before HUG and NELSON, Circuit Judges, and WALKER,*  District Judge.

MEMORANDUM** 

The United States of America appeals from the district court's order suppressing certain incriminating statements made by defendant-appellee Wallace Miles. We reverse.

In a superseding indictment returned on December 6, 1989, defendant Wallace Lewis Miles was charged with one count of conspiracy to possess more than 50 grams of cocaine with intent to distribute and one count of possession of approximately 1,250 grams of cocaine base with intent to distribute.

On November 14, 1989, motions to suppress were heard before Judge James A. Redden, United States District Judge, who ordered the suppression of certain incriminating statements made by defendant Miles. The Government filed a motion for reconsideration, which was denied. The Government now appeals the district court's granting of Miles' motion to suppress.

On August 25, 1989, defendant Miles was driving north on Interstate-5 near Grant's Pass, Oregon and was stopped by Trooper Anderson of the Oregon State Police for swerving between lanes and driving a vehicle with windows obscured by a dark adhesive film in violation of Oregon law. Trooper Anderson asked Miles and Daryl Owens, a passenger, for identification and vehicle registration papers. Miles did not have a valid Washington driver's license, but presented a Washington State identification card. Owens produced a California driver's license and an automobile registration card in the name of "Londone Taylor," who he claimed to be his girlfriend. Upon requesting a status check for licenses and any outstanding arrest warrants, Trooper Anderson discovered that Owens had an outstanding felony drug arrest warrant and that Miles' California driver's license had been suspended. When additional state officers arrived, they arrested Owens. Both Miles and Owens were ordered to get out of the car at gunpoint, told to lie face-down on the ground, and frisked for weapons. Owens was handcuffed and seated in a locked patrol car. Trooper Anderson apologized to Miles and informed him that he was not under arrest and could leave. Miles did not leave and was directed to stand to the side of the road, where he was watched by a police officer.

Trooper Anderson then asked Miles and Owens for permission to search the car for weapons or drugs. Both consented, and a search revealed a suitcase containing $810 in cash, a few articles of clothing, and a portable stereo.

Since Miles was not the owner of the car and did not have a valid driver's license, Trooper Anderson offered him a ride back to Grant's Pass. Miles accepted the ride to the Grant's Pass Patrol Office. Upon arrival at the police station, Miles requested the return of the stereo and the cash. However, Trooper Anderson denied his request because Miles was not the owner of the vehicle and could not prove ownership of the cash and stereo. Miles told Trooper Anderson that he owned the stereo and that he had brought it with him on a bus from Seattle to Los Angeles. Shortly thereafter, the FBI office in Seattle telephoned Trooper Anderson and informed him that Owens was known to transport narcotics hidden in the speakers of portable stereos. Anderson then retrieved the stereo, brought it into the office, and asked Miles if it belonged to him. Miles replied affirmatively and consented to Anderson's request to search the stereo. The search revealed a large quantity of crack cocaine, wrapped in duct tape which had the fingerprints of Owens and McIntosh (Londone Taylor's husband).

The district court found that Miles was in custody when his statements regarding ownership of the stereo were given and that Miranda warnings were required. Accordingly, the district court granted Miles' motion to suppress his statements asserting ownership of the stereo.

A. Standard of review.

A district court's findings of fact are subject to the "clearly erroneous" standard of review, whereas the application of the law to the facts is generally reviewed de novo. United States v. Allen, 831 F.2d 1487, 1494 (9th Cir. 1987), cert. denied, 487 U.S. 1237, 108 S. Ct. 2907, 101 L. Ed. 2d 939 (1988). Whether a person was in custody and whether he was subjected to a police interrogation are questions of fact reviewable under the clearly erroneous standard. United States v. Brady, 819 F.2d 884, 886 (9th Cir. 1987), cert. denied, 484 U.S. 1068, 108 S. Ct. 1032, 98 L. Ed. 2d 996 (1988); United States v. Poole, 806 F.2d 853, 853 (9th Cir. 1986), amending 794 F.2d 462 (9th Cir. 1986); United States v. Wauneka, 770 F.2d 1434, 1438 (9th Cir. 1985); United States v. Combs, 762 F.2d 1343, 1348 (9th Cir. 1985).

B. Whether Miles was "in custody" for purposes of Miranda warnings.

Whether a person is "in custody" or deprived of his freedom of action in any significant way for purposes of determining whether Miranda warnings should have been given is determined by reviewing the totality of facts surrounding the alleged restraint. United States v. Booth, 669 F.2d 1231, 1235 (9th Cir. 1981). In Booth, the Ninth Circuit outlined the following factors to consider: (1) language used by the officer to summon the individual; (2) extent to which he or she is confronted with evidence of guilt; (3) physical surroundings of the interrogation; (4) duration of the detention; and (5) degree of pressure applied to detain the individual. The court must review all the pertinent facts to determine whether "a reasonable innocent person in such circumstances would conclude that after brief questioning he or she would not be free to leave." Booth, 669 F.2d at 1235.

In the present case, the district court considered the following facts in determining that Miles was "in custody":

(1) Miles was ordered out of the car and told to lie face-down on the ground outside of the vehicle;

(2) Police officers guarded Miles while the vehicle was searched;

(3) Miles' identification card was taken and not returned to him at the scene of Owens' arrest;

(4) Articles of clothing belonging to Miles were seized and an officer testified that the items of clothing were not returned to Miles at the scene of the arrest;

(5) A trooper was ordered to watch Miles at the scene prior to the vehicle search;

(6) Miles was placed in the back seat of a locked patrol car and transported to the police station;

(7) A trooper was ordered to watch Miles at the police station prior to the FBI tip that Owens was known to transport illegal drugs hidden in stereos; and

(8) Miles was detained for approximately two hours before he was given Miranda warnings.

The district court found that such a coercive environment constituted custody and suppressed Miles' statements claiming ownership of the stereo. Under the totality of the circumstances, we conclude that the district court's finding that Miles was "in custody" during the roadside stop and at the police station was clearly erroneous. For purposes of receiving Miranda warnings, "the ultimate inquiry is simply whether there is a 'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." California v. Beheler, 463 U.S. 1121, 1125, 103 S. Ct. 3517, 77 L. Ed. 2d 1275 (1983) (per curiam) (citations omitted). The restraint on a person's freedom of movement must be such that a reasonable person would not feel free to leave. United States v. Hudgens, 798 F.2d 1234, 1236-37 (9th Cir. 1986) (citing California v. Beheler, 463 U.S. 1121, 1124-25 (1982)); United States v. Bautista, 684 F.2d 1286, 1291-92 (9th Cir. 1982) (citing Oregon v. Mathiason, 429 U.S. 492, 495 (1977)). Although Miles was subjected to a degrading body frisk,1  he was also given an apology, told that he was free to leave, and offered a ride to Grant's Pass. A reasonable person at this early stage would have believed he was free to leave. Once at the Grant's Pass police station, Miles was given his identification and articles of clothing, but not the cash or the stereo. At this point as well, Miles was free to leave. He did not experience a restraint on his freedom equivalent to that of a formal arrest. It appears that Miles remained at the police station only because he wanted to regain possession of the stereo. Furthermore, the fact that Miles was observed while he was at the police station does not give rise to a restriction on his freedom. As the Supreme Court noted in Oregon v. Mathiason, 429 U.S. 492, 97 S. Ct. 711, 50 L. Ed. 2d 714 (1977), "a noncustodial situation is not converted to one in which Miranda applies simply because a reviewing court concludes that, even in the absence of any formal arrest or restraint on freedom of movement, the questioning took place in a 'coercive environment.' " Id. at 495.

While the purpose of Miranda warnings is to provide procedural safeguards to protect criminal defendants from the inherently coercive circumstances of custodial interrogations, it does not appear that such prophylactic measures were required because a reasonable person in Miles' circumstances would have felt free to leave the police station. For these reasons, we conclude that the district court's finding that Miles was "in custody" during the roadside arrest and prior to the FBI tip at the police station was clearly erroneous.

The next issue is whether Miles was "in custody" during the questioning about ownership of the stereo at the police station. After the call from the FBI, the police would not have been willing to let Miles leave, but this was not communicated to Miles. The record is devoid of facts indicating that a reasonable person in Miles' situation would believe that he was not free to leave the police station. From Miles' viewpoint, he was just as free to leave after the FBI report was received as he was before. Therefore, even after the FBI report was received, Miles was not "in custody," and hence, Miranda warnings were not required.

Miles contends that the officers' retention of his personal possessions created the type of custody held to exist in Florida v. Royer, 460 U.S. 491 (1983); however, his reliance on Royer is misplaced. Royer involved an illegal detention, unsupported by probable cause to arrest, which vitiated the defendant's consent to the search of his suitcase. Accordingly, the Supreme Court concluded that the trial court's denial of Royer's pretrial motion to suppress evidence obtained in the illegal search of his suitcase was erroneous. Royer, a Fourth Amendment search and seizure case, did not involve the scope of the meaning of "in custody" for purposes of determining whether a Miranda violation had occurred.

Even assuming that the Royer determination of an illegal detention properly defines "custody" for purposes of requiring Miranda warnings, the facts in Royer are clearly distinguishable from those of the present case. In holding that Royer had been illegally "seized" for purposes of the Fourth Amendment, the Supreme Court noted that: (1) Royer had been taken to a small room off the main concourse of the airport; (2) Royer was questioned by two police officers; (3) the police retrieved Royer's luggage from the airplane and did not return it to him; (4) the police asked for and did not return Royer's airplane ticket and driver's license; and (5) the policemen, both at the time of the initial stop and later in the interrogation room, identified themselves as narcotics investigators and told Royer that he was suspected of transporting illegal narcotics. Based on these circumstances, the Court concluded that Royer could not have reasonably felt he was free to leave. Id. at 501.

The facts in Miles' case are clearly different. Not only was Miles not exposed to the type of coercive and intimidating environment held to exist in Royer, but he voluntarily accompanied the police to the station, was specifically told he was free to leave and was in fact able to do so until the police received the FBI tip. Moreover, unlike Royer, where the Court noted that the retention of a person's luggage and airline ticket would necessarily restrict his freedom of travel, the retention of Miles' clothing, identification card and money did not create a similar restraint on his ability to depart from the presence of the police. This conclusion is illustrated by Miles' continued inquiries regarding the return of his stereo. Apparently, he was seeking the return of the stereo and the money before leaving the police station.

Therefore, we hold that the district court erroneously granted defendant's motion to suppress statements of ownership which were made on the roadside and at the police station.

C. Whether Miles was subjected to a police interrogation.

Since we have already decided that Miles was not "in custody" when he asserted his ownership of the stereo, we need not address whether he was interrogated during that time. Miranda warnings are required only for custodial interrogations, not for non-custodial interrogations. Oregon v. Mathiason, 429 U.S. at 495.

The district court's order suppressing Miles' statements of ownership at the roadside stop and at the police station is REVERSED.

 *

The Honorable Vaughn R. Walker, United States District Judge for the Northern District of California, sitting by designation

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 21

 1

An investigative stop does not become an arrest merely because law enforcement officers momentarily restrict the individual's freedom of movement. United States v. Patterson, 648 F.2d 625, 633 (9th Cir. 1981). See also United States v. Jacobs, 715 F.2d 1343, 1345 (9th Cir. 1983) (stop did not become an arrest where deputy ordered defendant and passenger out of car at gunpoint and ordered them to "prone out")