CASSANDRA SMITH V. COMMONWEALTH OF KENTUCKY
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CASSANDRA SMITH
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APPELLANT
ON REVIEW FROM COURT OF APPEALS
CASE NO . 2006-CA-002120-MR
JEFFERSON CIRCUIT COURT NO . 04-CR-000637
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE VENTERS
AFFIRMING IN PART AND REVERSING AND_ REMANDING IN PART
Appellant, Cassandra Smith, appeals from a Court of Appeals decision
affirming a Jefferson Circuit Court judgment entered upon a jury verdict
convicting her of first-degree possession of a controlled substance and
possession of drug paraphernalia. For these crimes, pursuant to a sentencing
agreement with the Commonwealth, Smith was sentenced to a total of three
years to serve, probated for five years.
On appeal, Smith contends that the trial court erred by denying her
motion to suppress several incriminatory statements she made to police during
the execution of a search warrant at her residence, and by precluding her from
introducing evidence concerning her husband's prior felony drug convictions.
For the reasons stated below, we conclude that the trial court erred by failing
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to suppress Smith's statement, which implied that she had drugs in her
pocket, made in response to a question asked by police after she was
handcuffed . Because the admission of this evidence was not harmless, we
reverse Smith's conviction for first-degree possession of a controlled substance
and remand for a new trial. We affirm the decision of the Court of Appeals in
all remaining respects.
FACTUAL AND PROCEDURAL BACKGROUND
Following an investigation which appeared to implicate Smith in drug
trafficking, Louisville Police obtained a warrant to search her residence . On
April 24, 2003, police executed the warrant. In executing the warrant police
used what was characterized as a "dynamic entry," which involved ramming
the door open to gain entry into the residence . Smith and her two children,
ages twelve and elev6n, were home at the time .
After entering the residence, Sergeant Yvette Gentry found Smith in her
bedroom. Upon encountering Smith, Gentry immediately handcuffed her and,
without advising her of her rights pursuant to Miranda v. Arizona, 384 U.S.
436 (1966), asked her if she had any drugs or weapons on her. Smith replied
to the effect that "she had something in her pocket."' Based upon this
response, Gentry found and removed a packet containing four rocks of crack
cocaine from Smith's pants pocket. This cocaine served as the basis of her
1 Smith's statements at the scene of her arrest were not recorded . The quotes
attributed to her are actually paraphrased reports of police witnesses, the accuracy
of which is not disputed .
indictment for trafficking in cocaine and her eventual conviction for possession
of the drug.
After recovering the cocaine, Gentry arrested Smith and escorted her into
the living room where she was met by Detective Scott Gootee. Gootee testified
that pursuant to normal routine, he then gave Smith the Miranda warnings ;
however, no other witness recalled this and the trial court concluded he had
not. The record is unclear about what prompted Smith to make her next
comments, though there was testimony that one of the officers may have said
something about the children being present and whether they could be moved
elsewhere . In any event, Smith made statements to the effect "well, I knew this
was going to happen one day so that's why I've told my kids this may happen
one of these days", and that she "was not a big drug dealer but just did it to get
by." In effect, the statements amounted to an admission of drug dealing.
In the remaining course of the search, police discovered baggies which
appeared to contain cocaine residue . The baggies were the basis for the
possession of the drug paraphernalia charge .
On February 24, 2004, Smith was indicted for first-degree trafficking in a
controlled substance (cocaine) and possession of drug paraphernalia. In due
course she moved to suppress the incriminating statements as previously set
forth .
Following an evidentiary hearing, the trial court initially ordered all of the
statements suppressed . The Commonwealth filed a motion for reconsideration
which persuaded the trial court to reverse its ruling. Under the trial court's
ultimate ruling the statement made in the bedroom, implying she had drugs in
her pocket, was held to be admissible on the basis that Smith was not in
custody at the time she made it. The living room statements were held to be
admissible on the basis that those statements were not made in response to
any police inquiry designed to elicit an incriminating statement, and thus it
was irrelevant whether or not she had been Mirandized .
At trial, Smith's defense was that before the police executed the warrant,
her husband, while out on work-release from jail, came by her residence and,
while she was visiting with him, placed something in her pants pocket. She
assumed it was money, but, as it turned out, was actually the crack cocaine
police found in her pants pocket. Smith thus argued that she did not
knowingly possess the cocaine discovered in her pocket.
The jury found Smith not guilty of trafficking in cocaine, but convicted
her of the lesser-included offense of possession of cocaine . She was also
convicted of possession of drug paraphernalia. Following the jury's verdict in
the guilt phase, Smith entered into a sentencing agreement with the
Commonwealth under which she would receive a sentence of three years,
probated for five years.
The Court of Appeals affirmed Smith's conviction, and we thereafter
granted discretionary review .
THE T RIAL COURT ERRED BY FAILING TO
SUPP RESS THE BEDROOM STATEMENT
Smith first argues that the trial court erred by failing to grant her motion
to suppress the statement she made to Officer Gentry in her bedroom. The
trial court denied the motion based upon its conclusion, affirmed by the Court
of Appeals, that Smith was not in custody for Miranda purposes when she was
asked by Gentry whether she had any drugs or weapons on her.
As previously discussed, immediately after entering Smith's residence,
Officer Gentry found her in the bedroom . Gentry handcuffed Smith and,
without Mirandizing her, asked if she had any drugs or weapons on her. Smith
responded that she "had something in her pocket." Gentry searched Smith's
pocket and discovered a packet containing crack cocaine, the only drugs found
during the execution of the search warrant .
Smith argues that her statement should be suppressed because it was
the product of an un-mirandized custodial interrogation. She also argues that
the statement was not harmless because it directly contradicted her trial
defense that she was unaware the drugs were in her pocket. Relying on Taylor
v. Commonwealth, 182 S .W.3d 521 (Ky. 2006), the Commonwealth argues that
the handcuffing of Smith did not constitute custody for Miranda purposes and
thus her statement was admissible .
We do not regard Taylor as controlling here for the simple reason that
Taylor was not interrogated . Taylor spontaneously told the officer that
handcuffed him that he had crack cocaine and marijuana in his pockets. "The
statements made by Taylor were not in response to any police statement
reasonably calculated to elicit an incriminating response . Miranda requires an
individual who is stopped to be apprised of his/her rights only in the context of
a custodial interrogation . Here, there was no custodial interrogation ." Id. at
523. Thus, Miranda and Fifth Amendment rights were not implicated.
Because no interrogation occurred in Taylor, its indication that "Taylor was not
in custody for Miranda purposes simply because he was handcuffed and
detained in order to prevent his flight until the investigation was completed" is
pure dicta and is not persuasive . Taylor, 182 S .W.3d at 524.
In reviewing whether Smith's statement was admissible, we address
three questions: whether Smith was placed in custody for Miranda purposes as
a result of being handcuffed ; whether Gentry's questioning was interrogation;
and if she was in custody for Miranda purposes and was interrogated, whether
the public safety, or any other, exception applies to allow the admission of her
statement.
We first address whether Smith was in custody at the time she made the
bedroom statement. We review the question of whether a defendant was in
custody de novo. Commonwealth v. Lucas, 195 S .W.3d 403, 405 (Ky. 2006) .
It is fundamental that Miranda only applies to situations implicating
compelled self-incrimination . "Indeed, far from being prohibited by the
Constitution, admissions of guilt by wrongdoers, if not coerced, are inherently
desirable . . . . Absent some officially coerced self-accusation, the Fifth
Amendment privilege is not violated by even the most damning admissions ."
Oregon v. Elstad, 470 U .S . 298 (1985) (quoting United States v. Washington,
431 U .S . 181 (1977)) (Emphasis added) . To the .contrary, custodial questioning
is inherently coercive, and protection against this inherent coercion is what
Miranda is intended to prevent. Michigan v. Mosley, 423 U .S . 96, 112 (1975) .
Thus, "Miranda warnings are only required when the suspect being questioned
is `in custody .' Lucas, 195 S .W.3d at 405 (citing Thompson v. Keohane, 516
U .S . 99 (1995)) .
"Custodial interrogation has been defined as questioning initiated by law
enforcement after a person has been taken into custody or otherwise deprived
of freedom of action in any significant way." Id. "Miranda warnings are
required only where there has been such a restriction on the freedom of an
individual as to render him in custody ." Id. "The inquiry for making a
custodial determination is whether the person was under formal arrest or
whether there was a restraint of his freedom or whether there was a restraint
on freedom of movement to the degree associated with formal arrest." Id.
(citing Thompson, 516 U .S. 99; United States v. Mahan, 190 F.3d 416 (6th Cir.
1999)) .
Custody does not occur until police, by some form of physical force or
show of authority, have restrained the liberty of an individual . Baker v.
Commonwealth, 5 S .W.3d 142, 145 (Ky. 1999) . The test is whether,
considering the surrounding circumstances, a reasonable person would have
believed he or she was free to leave.2 Id. (Citing United States v. Mendenhall,
446 U .S . 544, 554 (1980)) . The United States Supreme Court has identified
factors that suggest a seizure has occurred and that a suspect is in custody:
the threatening presence of several officers ; the display of a weapon by an
officer; the physical touching of the suspect; and the use of tone of voice or
language that would indicate that compliance with the officer's request would
be compelled . Mendenhall, 446 U.S . at 544 ; Cecil v. Commonwealth, 297
S .W.3d 12 (Ky . 2009) . Other factors which have been used to determine
custody for Miranda purposes include: (1) the purpose of the questioning; (2)
whether the place of the questioning was hostile or coercive; (3) the length of
the questioning; and (4) other indicia of custody such as whether the suspect
was informed at the time that the questioning was voluntary or that the
suspect was free to leave or to request the officers to do so, whether the
suspect possessed unrestrained freedom of movement during questioning, and
whether the suspect initiated contact with the police or voluntarily admitted
the officers into the residence and acquiesced to their requests to answer some
questions. U.S. v. Salvo, 133 F.3d 943, 950 (6th Cir. 1998) .
2 We caution that a detainee's subjective belief that he is not free to leave is not,
standing alone, dispositive of whether there is custody for Miranda purposes . A
suspect detained in a stop pursuant to Terry v. Ohio, 392 U.S . 1 (1968) is seized
and not free to leave, but nevertheless Miranda warnings are not required under
such detentions . Berkemer v. McCarty, 468 U.S . 420 (1984) . Thus, custody for
Miranda purposes necessarily exceeds the brief detention and less intrusive
questioning anticipated under Terry, and identification of Miranda custody requires
application of the additional factors as identified above to the totality of the
circumstances .
We are persuaded that, upon application of the above factors to the facts
of this matter, under the totality of the circumstances, Smith was in custody
for Miranda purposes when she made the bedroom statement to Officer Gentry.
First, the police's use of a "dynamic entry" followed by the influx of several
police officers set the tone for an inherently coercive atmosphere . Having
several police officers burst through the front door of one's residence is
obviously threatening to anyone inside . Moreover, in connection with her
handcuffing, there was a physical touching of Smith. Further, under the
described circumstances, it is clear that Smith was not free to leave, and did
not possess unrestrained freedom of movement. And finally, the handcuffing
itself was a restraint on freedom akin to formal arrest. 3 Based upon the totality
of circumstances, in view of the factors enumerated, we are constrained to
conclude that Smith was in custody for Miranda purposes .
Since we hold that Smith was in custody at the time she made the
statement, we next consider whether Officer Gentry's question "do you have
any weapons or drugs" amounted to police interrogation . Interrogation has
3
We agree that handcuffing alone will not always transform a seizure pursuant to
Terry v. Ohio into custody for Miranda purposes . See U.S. v. Foster, 376 F.3d 577,
588 (6th Cir. 2004) ("[T]he use of handcuffs [does not] exceed the bounds of a Terry
stop, so long as the circumstances warrant that precaution") . Terry, 392 U .S . at 24
("When an officer is justified in believing that the individual whose suspicious
behavior he is investigating at close range is armed and presently dangerous to the
officer or to others, it would appear to be clearly unreasonable to deny the officer
the power to take necessary measures to determine whether the person is in fact
carrying a weapon and to neutralize the threat of physical harm.") In dicta, Taylor,
182 S .W.3d 521, also endorsed this principle . While handcuffing will necessarily
weigh strongly that there is custody for Miranda purposes, we are not willing to
adopt a bright-line rule that it always is . Again, all relevant factors must be
weighed, and then an ultimate determination made based upon the totality of
circumstances.
been defined to include "any words or actions on the part of police (other than
those normally attendant to arrest and custody) that the police should know
are reasonably likely to elicit an incriminating response from the suspect . . .
focus[ing] primarily upon the perceptions of the suspect, rather than the intent
of the police ." Rhode Island v. Innis, 446 U .S. 291, 301 (1980); Wells v.
Commonwealth, 892 S .W.2d 299, 302 (Ky. 1995) . It is self-evident that
Gentry's unambiguous question ("Do you have any drugs or weapons on you?")
intended to illicit, and indeed did illicit, an incriminating response, the
statement, "yes, in my pocket."
In summary, the bedroom statement was the product of un-mirandized
custodial police interrogation.
When a statement is made in violation of Miranda, the usual remedy
would be to suppress the statement. Miranda, 384 U.S. 486 . However, the
Commonwealth argues that even if Smith's statement was a product of
custodial interrogation, the statement was nevertheless admissible pursuant to
the public safety exception identified in New York v. Quarles, 467 U.S . 649
(1984), which we recently adopted in Henry v. Commonwealth, 275 S .W.3d 194
(Ky. 2008) .
In Quarles, the United States Supreme Court recognized an exception to
the Miranda warning requirement which would allow the admission of a
statement made in response to a custodial interrogation if the questioning was
designed to elicit an answer to protect the public . In Quarles, police were
pursuing a rape suspect who abandoned a gun in a grocery store . Upon
apprehending the suspect, a police officer asked him where the gun was
without Mirandizing him, and the suspect stated where the gun was located .
The Court held that the statement regarding the gun's location was admissible
stating, "We do not believe that the doctrinal underpinnings of Miranda require
that it be applied in all its rigor to a situation in which police officers ask
questions reasonably prompted by concern for the public safety." Quarles, 467
U.S. at 655-656.
Unlike the present case, Quarles involved an identifiable and specific
danger requiring immediate and unfettered questioning of the defendant to
alleviate the risk. As explained in Quarles:
The police in this case, in the very act of apprehending a
suspect, were confronted with the immediate necessity of
ascertaining the whereabouts of a gun which they had every
reason to believe the suspect had just removed from his
empty holster and discarded in the supermarket. So long as
the gun was concealed somewhere in the supermarket, with
its actual whereabouts unknown, it obviously posed more
than one danger to the public safety: an accomplice might
make use of it, a customer or employee might later come
upon it.
In such a situation, if the police are required to recite the
familiar Miranda warnings before asking the whereabouts of
the gun, suspects in Quarles' position might well be deterred
from responding .
Procedural safeguards which deter a
suspect from responding were deemed acceptable in Miranda
in order to protect the Fifth Amendment privilege; when the
primary social cost of those added protections is the
possibility of fewer convictions, the Miranda majority was
willing to bear that cost. Here; had Miranda warnings
deterred Quarles from responding to Officer Kraft's question
about the whereabouts of the gun, the cost would have been
something more than merely the failure to obtain evidence
useful in convicting Quarles. Officer Kraft needed an answer
to his question not simply to make his case against Quarles
but to insure that further danger to the public did not result
from the concealment of the gun in a public area.
Id. at 657.
In this matter, we find that Officer Gentry's interrogation of Smith was
not made in relation to any quantifiable public safety threat. While the
Commonwealth argues that the police here faced legitimate safety concerns
since weapons could be present in Smith's apartment, a vague belief that a
weapon could be present is unlike the certain knowledge in Quarles and Henry
that a gun had been discarded in an area open to the public . If a gun was
present in Smith's apartment, it posed no danger to the public at large. Thus,
we are persuaded that the public safety exception does not apply.
In summary, the bedroom statement was a product of an un-mirandized
custodial interrogation not subject to the public safety exception . As such, the
trial court erred by failing to suppress the statement. Moreover, the error was
prejudicial because the statement contradicted Smith's defense that she was
unaware that the drugs were in her pocket. Thus the error was not harmless .
Chap man v. California, 386 U.S . 18, 24 (1967) (requiring that constitutional
error be "harmless beyond a reasonable doubt") . Upon retrial, the statement
should be excluded .
STATEMENTS IN THE LIVING ROOM
Smith next argues that the trial court erred by denying her motion to
suppress the statements she made in the living room after being arrested.
Again, Smith contends that the statements were a product of custodial
interrogation .
After Officer Gentry arrested Smith for being in possession of the cocaine
and escorted her into the living room, Smith made comments to the effect of
"well, I knew this was going to happen one day so that's why I've told my kids
this may happen one of these days", and that she "was not a big drug dealer
but just did it to get by."
It is uncontested that Smith was in custody for Miranda purposes at the
time she made these statements. The trial court factually concluded that
Smith did not receive Miranda warnings prior to making the statements, but
nevertheless permitted the statements to be admitted upon its conclusion that
they were not made in response to police interrogation . We agree with the trial
court's ruling.
There was conflicting testimony at trial regarding the circumstances
which caused Smith to make the incriminating statements. Some testimony
indicated that Smith's statements were made spontaneously and were not in
response to anything said by the police . If the statements were made
spontaneously, there is obviously no bar to the admission of the statements in
trial and the trial court correctly denied the motion to suppress . Miranda, 384
U.S . at 478 . However, Smith contends that she made the statements in
response to an officer's comment to the effect that the children were present
and could they be removed elsewhere . Even if we were to accept Smith's
version of events as true, we are persuaded that the officer's comment cannot
fairly be characterized as police interrogation, and thus the trial court correctly
denied the motion to suppress .
Miranda requires the express declaration of a defendant's rights prior to
custodial interrogation . Otherwise suppression is the remedy . Miranda, 384
U.S . at 479. As previously noted, interrogation has been defined to include
"any words or actions on the part of police (other than those normally
attendant to arrest and custody) that the police should know are reasonably
likely to elicit an incriminating response from the suspect . . . focusing]
primarily upon the perceptions of the suspect, rather than the intent of the
police." Innis, 446 U .S . at 301 ; Wells, 892 S.W.2d at 302 .
When Smith was brought into the living room her children were present
and the record indicates that one of them was quite upset. The officer's
question to the effect of "was there anywhere else the children could be
removed to" was not reasonably likely to elicit an incriminating response . The
question regarded the children's well-being, not Smith's potential drug
activities . It could not reasonably have been anticipated that the comment
would elicit an incriminating response . As such, we are persuaded that the
living room statements were not a product of custodial interrogation, and were
properly admitted .
ARMON PERRY'S PRIOR DRUG CONVICTION
Smith's final argument is that the trial court erred by precluding her
from introducing evidence concerning three prior drug-related convictions
against her husband, Armon Perry. Perry was incarcerated at the time of
Smith's arrest, but was qualified for work-release .
As previously noted, Smith's trial defense was that when her husband
came by her residence on April 24, 2003, while on work release from jail prior
to the execution of the warrant, he, unbeknownst to her, slipped the crack
cocaine into her pants pocket. While she knew Perry had placed something in
her pocket, she assumed it was money. She argues that admission of his prior
drug convictions would corroborate her claim that he had slipped the cocaine
into her pocket without her knowledge.
KRE 404(b) provides as follows :
(b) Other crimes, wrongs, or acts . Evidence of other crimes,
wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity therewith. It
may, however, be admissible :
(1) If offered for some other purpose, such as proof of
motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident;
As is clear from the language of the rule, application of KRE 404(b) is not
limited to criminal defendants . Robert G. Lawson, The Kentucky Evidence Law
Handbook, ยง 2 .25[2], at 125 (4th ed . LexisNexis 2003) . As this Court has
previously stressed, KRE 404(b) is "exclusionary in nature," and as such, "any
exceptions to the general rule that evidence of prior bad acts is inadmissible
should be `closely watched and strictly enforced because of [its] dangerous
quality and prejudicial consequences."' Clark v. Commonwealth, 223 S .W.3d
90, 96 (Ky. 2007) . (quoting OBryan v. Commonwealth, 634 S.W.2d 153, 156
(Ky.1982)) . As recognized in Tamme v. Commonwealth, 973 S.W .2d 13, 29 (Ky .
1998), the list of exceptions enumerated in the rule is illustrative, not
exclusive.
Smith's argument in support of admitting the evidence is stated in her
brief as follows:
[E]vidence that Armon Perry had previously been convicted
of trafficking in a controlled substance and possession of a
controlled substance was relevant to show that he was
involved in the drug trade, making it likely that he could
obtain illegal drugs while out on work release and making it
more probable than not that he put the cocaine into
Cassandra's pocket, without her knowledge, before returning
to jail.
The relevance of Perry's prior convictions is not readily apparent . The
claim that Perry put the contraband in her pocket was not challenged . The
question is whether she knew he had done so . We fail to see how his prior
convictions would assist the jury in deciding whether she knew that the object
he put in her pocket was crack cocaine. Notwithstanding our doubt about the
relevance of Perry's criminal record, we note that Smith's argument does not
specify an enumerated KRE 404(b) (1) exception supporting admissibility. Nor
do we believe her argument states a viable non-enumerated exception. To the
contrary, as framed, the argument suggests that the evidence would be
introduced for the purpose of showing that Perry possessed the character of a
drug-dealer with the corresponding propensity to engage in illegal drug-related
conduct and, by obtaining the crack cocaine and placing it in Smith's pants
pocket, he acted in conformity therewith. However, that is exactly the type of
evidence KRE 404(b) is intended to exclude.
In the clear absence of a viable KRE 404(b) exception, we are persuaded
that the trial court properly excluded the evidence concerning Perry's prior
drug convictions.
CONCLUSION
For the foregoing reasons the conviction for first-degree possession of a
controlled substance is reversed and remanded to the Jefferson Circuit Court
for additional proceedings consistent with this decision . The opinion of the
Court of Appeals is otherwise affirmed .
Minton, C .J ., Abramson, Noble, Schroder, and Scott, JJ ., concur .
Cunningham, J ., not sitting.
COUNSEL FOR APPELLANT:
Daniel T. Goyette
Louisville Metro Public Defender
Elizabeth B . McMahon
Assistant Public Defender
Office of the Jefferson District Public Defender
200 Advocacy Plaza
717-719 West Jefferson Street
Louisville, Kentucky 40202
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General
Jeffrey Allan Cross
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, Kentucky 40601
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