No. 333804 (Mich. Ct. App. Jan. 19, 2017)

No. 333804


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v. TINA HARBERT, Defendant-Appellee.

UNPUBLISHED Jackson Circuit Court
LC No. 15-005682-FH Before: O'CONNELL, P.J., and MARKEY and MURRAY, JJ. PER CURIAM.

In this interlocutory appeal, the prosecution appeals by leave granted the trial court's order suppressing defendant's statements. Because we conclude that defendant was not in custody at the time she gave her statements, we reverse the trial court's order suppressing them.

The instant case involves statements defendant made to police officers on November 17, 2015, while the officers were investigating allegations of child abuse against defendant and her husband, James Harbert. Defendant was never given Miranda warnings before the interview. The crux of the issue before the trial court and on appeal is whether defendant was "in custody" and thus entitled to the Miranda warnings.

Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).

On November 16, 2015, Detective Bradley Reed, along with Detective Sergeant Huttenlocker and Deputy Lino Johnson, went to defendant's home to conduct a "safety plan" for the minor children. Detective Reed spoke with defendant and James for approximately 10-20 minutes and asked them questions about how they disciplined the children.

On November 17, 2015, Detective Reed and Detective Sergeant Huttenlocker, along with Chief Ratkiewicz, again went to defendant's home. When they arrived, they arrested James and executed a search warrant. In full view of defendant, Chief Ratkiewicz placed James in handcuffs, arrested him, and transported him from the home in a patrol car. Thereafter, Detective Reed asked defendant if she would be willing to speak with him "about what was going on with [James] and the kids and her." Detective Reed testified at the suppression hearing that he wanted to conduct the interview in the backseat of his patrol car because the vehicle had a camera and superior recording capabilities in comparison to the microphone he wore on his uniform. Defendant was inside her home at the time Detective Reed requested the interview.

In asking whether defendant would be amenable to an interview, Detective Reed testified that he and Detective Sergeant Huttenlocker told defendant that she was "not under arrest, she was not in custody, and she was not being charged with anything, and that anything she said was voluntary[.]" Although Detective Reed recalled telling defendant that "everything she said was voluntary," he could not recall specifically telling defendant that she would be free to end the interview at any time. Detective Reed testified that defendant appeared to understand the conversation and that she did not appear intoxicated, injured, or in poor health.

Defendant consented to Detective Reed's request for an interview, and she entered Detective Reed's fully-marked patrol vehicle, which was located in defendant's driveway. Defendant entered the backseat of the patrol vehicle, the doors of which were locked and could only be opened from the outside; Detective Reed sat in the front seat. Detective Reed testified that defendant never asked to exit the patrol car and that she never expressed a desire to terminate the interview or to stop speaking. Detective Reed perceived defendant to be of average intelligence and to be capable of understanding what was going on during the interview.

After approximately 40-45 minutes, the interview ended when Detective Sergeant Huttenlocker approached the patrol car and informed defendant that he was terminating the interview. Defendant testified that Detective Sergeant Huttenlocker yelled at her and accused her of not being cooperative. The officers did not arrest defendant at that time, but Detective Reed told her that he was going to forward the information gleaned from the interview to the prosecuting attorney's office. Defendant was permitted to return to her home after the interview.

According to defendant's testimony at the suppression hearing, she recalled meeting with police officers on consecutive days in November 2015. On November 17, 2015, police officers, including Detective Reed, came to her house and arrested James. Thereafter, the police car in which James was placed pulled out of her driveway and Detective Reed asked whether she would be willing to talk to her in his patrol car. Defendant agreed "because I was under the assumption [Detective Reed] was going to talk to me about what was going to happen with my husband[.]" She testified, however, that this assumption was not based on anything that was said, as Detective Reed did not indicate that he only wanted to talk to her about what was going to happen to James following his arrest.

Defendant testified that Detective Reed never told her that she was free to end the interview and leave the patrol car. She testified that she believed she had to answer the questions posed to her because "I didn't feel I could leave because I was locked in the back of the car. But I also felt—I was intimidated basically I just—I didn't feel like I had a choice but to answer [Detective Reed.]" When asked why she felt that way, defendant answered: "I was scared; I had just watched my husband be arrested. I had worked all night so I was tired." She admitted, though, that she was not handcuffed, that she went to the car voluntarily, and that she never told Detective Reed she wanted to end the questioning. Also, when the subject of the interview did not comport with her expectations—she originally testified that she thought she was going to learn more about what was happening to James—she did not ask that the interview stop and she never protested the questions posed to her.

The trial court granted defendant's motion to suppress her statements after finding that she was "in custody" for purposes of Miranda because she was placed in the back of a locked police car and because Detective Reed never expressly told her that she was free to leave or to terminate the interview at any time.

"This Court reviews a trial court's findings of fact at a suppression hearing for clear error and reviews de novo its ultimate decision on a motion to suppress the evidence." People v Tavernier, 295 Mich App 582, 584; 815 NW2d 154 (2012). Because the only issue concerns the trial court's ultimate decision to suppress the evidence, this Court's review is de novo. Id.

"In Miranda, the United States Supreme Court held that the Fifth Amendment's prohibition against compelled self-incrimination requires that the accused be given a series of warnings before being subjected to 'custodial interrogation.' " People v Elliott, 494 Mich 292, 301; 833 NW2d 284 (2013). "If the custodial interrogation is not preceded by an adequate warning, statements made during the custodial interrogation may not be introduced into evidence at the accused's criminal trial." Id.

In this case, defendant was never given Miranda warnings, so the pertinent inquiry regarding the admissibility of her statements turns on whether she was "in custody" when she was in the back of Detective Reed's car. As used in Miranda analysis, " 'custody' is a term of art that specifies circumstances that are thought generally to present a serious danger of coercion." Howes v Fields, 565 US 499, 508-509; 132 S Ct 1181; 182 L Ed 2d 17 (2012). A custodial interrogation is one that occurs when a person is " 'taken into custody or otherwise deprived of his freedom of action in a significant way.' " Elliott, 494 Mich at 305, quoting Miranda, 384 US at 444. "In determining whether a person is in custody in this sense, the initial step is to ascertain whether, in light of the objective circumstances of the interrogation, a reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave." Howes, 565 US at 509 (citation and quotation marks omitted). See also People v Coomer, 245 Mich App 206, 219; 627 NW2d 612 (2001) (citation and quotation marks omitted) ("To determine whether a defendant was in custody at the time of the interrogation, we look at the totality of the circumstances, with the key question being whether the accused reasonably could have believed that [s]he was not free to leave."). Courts consider a number of factors in making this objective determination, including "the location of the questioning, its duration, statements made during the interview, the presence or absence of physical restraints during the questioning, and the release of the interviewee at the end of the questioning." Howes, 565 US at 509 (citations omitted).

In this case, the trial court and defendant emphasized the fact that defendant was placed in the back of a locked police car, which necessarily curtailed her movement. That an individual's freedom of movement is restrained is relevant to the analysis, but it is not dispositive. See id. As explained by the United States Supreme Court in Howes:

Determining whether an individual's freedom of movement was curtailed, however, is simply the first step in the analysis, not the last. Not all restraints on

freedom of movement amount to custody for purposes of Miranda. We have declined to accord talismanic power to the freedom-of-movement inquiry and have instead asked the additional question whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda." [Id. (citation, quotation marks, and brackets omitted).]

Michigan caselaw concerning interviews in police cars is consistent with Howes. That is, our caselaw adheres to the premise that the fact that an interview occurs while the suspect is in the back of a locked police cruiser is not, by itself, enough to warrant a finding that the suspect was in custody. See People v Jones, 301 Mich App 566, 580; 837 NW2d 7 (2013); People v Raper, 222 Mich App 475, 479; 563 NW2d 709 (1997); People v Roark, 214 Mich App 421, 424; 543 NW2d 23 (1995). For instance, in Raper, the defendant was considered to be "in custody" because he was handcuffed and was placed in the back of a moving police car. Raper, 222 Mich App at 479. In Roark, the defendant was found to be "in custody" because she was placed in the back of a police cruiser and was told that she would not be released until she posted bond on outstanding warrants for her arrest. Roark, 214 Mich App at 424. In contrast, this Court has found that simply being placed in the back of a police car does not equate to custody. Jones, 301 Mich App at 580. In Jones, the defendant was pulled over as part of a traffic stop, and she was asked for safety purposes to sit in the back of a police cruiser with her children during the traffic stop. Id. The defendant was not handcuffed, and she was told that she was not under arrest. Id. This Court held that under the totality of the circumstances, "a reasonable person in defendant's position would have believed she was free to leave." Id.

Turning to the instant case, we conclude from the totality of the circumstances that defendant was not "in custody" at the time she made the challenged statements. Although defendant was in the back of a locked police car, the car remained parked in defendant's own driveway at the time of the interview. See Coomer, 245 Mich App at 220 (explaining that, generally, interrogation occurring at a suspect's home is considered non-custodial). In addition, Detective Reed was in the front seat of the car during the entire interview. Thus, it is not as if defendant were left in the car with no way to get out, even if she had at any time indicated a desire to exit the car. Cf. Roark, 214 Mich App at 424. Moreover, at the time of her interview, defendant had just witnessed James be handcuffed, arrested, removed from the house, and driven away in the back of a police car. In stark contrast to the way James was treated, defendant was neither handcuffed nor told she was under arrest. And unlike James, she was asked whether she would consent to accompanying Detective Reed to his car, and Detective Reed told her that he wanted to conduct the interview in the car simply because it contained recording equipment. In short, there is no evidence that Detective Reed told defendant she had to accompany him to the car. Rather, she voluntarily did so, and the fact that she voluntarily accompanied Detective Reed to the car, particularly in light of James's arrest, weighs strongly in favor of finding that defendant was not "in custody." See Oregon v Mathiason, 429 US 492, 495; 97 S Ct 711; 50 L Ed 2d 714 (1977) (The suspect was not "in custody" where he voluntarily went to the police station, was told he was not under arrest, was interviewed for one-half hour, and then left the police station).

This case is similar to Jones, 301 Mich App at 580, where the defendant was asked to sit in the police car for non-custodial, "safety" reasons during a traffic stop. Rather than for safety, defendant was asked to sit in the back of a police car to facilitate the recording of her conversation with Detective Reed. Nothing indicates that she was asked to go to the car for purposes of creating a more coercive atmosphere of the type that the Miranda warnings address. "Fidelity to the doctrine announced in Miranda requires that it be enforced . . . only in those types of situations in which the concerns that powered the decision are implicated." Elliott, 494 Mich at 305 (citations and quotation marks omitted). To that end, it is significant that the interview was relatively brief—approximately 45 minutes—and that defendant was released at the end of the interview. See Howes, 565 US at 509.

In addition, statements the officers made to defendant before the interview support the conclusion that the interview was non-custodial. Again, defendant was told that she was not under arrest, that she was not being charged with any crimes, that she was not in custody, and that anything she said would be "voluntary" on her part. The trial court, and defendant, stressed the fact that Detective Reed never expressly told defendant that she could end the interview at any time or that she was free to leave the interview at any time. Although Detective Reed never used these express phrases, he nevertheless told her that her participation was "voluntary." A reasonable person would likely interpret the word "voluntary" to mean that she did not have to answer questions and that her participation was of her own accord. While Detective Reed could have been clearer at times, courts have resisted reducing the pertinent inquiry to a list of magic words or phrases. See, e.g., United States v Ortiz, 781 F3d 221, 231 (CA 5, 2015); United States v Hashime, 734 F3d 278, 284 (CA 4, 2013). In addition, Detective Reed communicated to defendant that she was not under arrest and that she was not "in custody." Although Detective Reed's use of the words "in custody" should not be used as a substitute for a legal conclusion as to whether defendant was "in custody" at the time of her interview, his statement should be afforded some meaning in evaluating the totality of the circumstances. See United States v Cavazos, 668 F3d 190, 195 (CA 5, 2012) (explaining that employment of the phrase "non-custodial" is relevant, but is not a "talismanic factor" in a Miranda analysis). In this case, in light of the rest of Detective Reed's statements about how defendant was not under arrest and how her participation was voluntary, we agree the statement that defendant was not "in custody" further supports the conclusion that a reasonable person in defendant's position would understand that he or she was free to leave. Howes, 565 US at 509, 517; Elliott, 494 Mich at 305, 311.

Although decisions from lower federal courts are not binding, they can be utilized as persuasive authority. People v Jackson, 292 Mich App 583, 595 n 3; 808 NW2d 541 (2011). --------

We reverse and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.

/s/ Peter D. O'Connell

/s/ Jane E. Markey

/s/ Christopher M. Murray