Louis Torres v. Commonwealth of Kentucky ( 2017 )

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NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
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RENDERED: FEBRUARY 16, 2017
NOT TO BE PUBLISHED
~uprtmt 384 U.S. 436 (1966). We review the trial court's factual findings for
clear error, but the question of custody is reviewed de novo. King v.
Commonwealth, 302 S.W.3d 649 (Ky. 2010) (reversed on other grounds).
In Smith v. Commonwealth, we stated that "[c]ustody does not occur until
police, by some form of physical force or show of authority, have restrained
the liberty of an individual." 312 S.W.3d 353, 358 (Ky. 2010) (citing Baker v.
Commonwealth, 5 S.W.3d 142, 145 (Ky. 1999)). The United States Supreme
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Court has identified more precise factors indicating that a suspect is in
custody:
[T]he 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.
Id. citing (United States v. Mendenhall, 446 U.S. 544, 554 (1980)).
In addition, Smith also identified several other factors for courts to consider:
(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.
Id. at 358-59 (citations omitted).
Nearly all of the aforementioned factors weigh in favor of the trial court's
determination that Appellant was not in custody for Miranda purposes during
his initial confrontation, transport or questioning by the officers.
Appellant testified at the suppression hearing that he felt he had no
choice but to accompany the officers to Lexington. He also argues that he was
not fluent in English and therefore could not understand Sergeant Greenleaf's
questioning. However, a recording of the encounter at Appellant's residence
demonstrates that Appellant had no problem understanding Sergeant
Greenleafs English. In addition, Sergeant Greenleaf specifically asked the
uniformed officer to step outside because he didn't want Appellant to feel
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pressured. And although Appellant may have been surprised when he was
awoken by the presence of the officers inside his home, he does not challenge
the officers' entry into the home. Moreover, nothing in the record indicates
that the officers threatened or physically contacted Appellant, nor did they
display a threatening presence at any time.
Appellant was also not in custody while he voluntarily traveled to
Lexington with the officers. Appellant was unrestrained and sat in the front
seat of the officer's unmarked vehicle during the trip. In this regard, the
present case is similar to Peacher v. Commonwealth, 391 S.W.3d 821 (Ky.
2013). In Peacher, this Court held that the defendant was not in custody due
in part to the facts that the defendant "was not frisked and was in no way
compelled or restrained. He rode, rather, as a passenger in the front seat of
the detective's unmarked vehicle." Id. at 847. In addition, Sergeant Brotherton
informed Appellant on multiple occasions during the trip that he was not under
arrest.
Appellant testified that although he had been informed multiple times
that he was not under arrest, he did not feel that way. However, "[t]he test is
whether, considering the surrounding circumstances, a reasonable person
would have believed he or she was free to leave." Smith, 312 S.W.3d at 358.
This is an objective test that is not dependent on a defendant's subjective
belief. Considering the totality of the surrounding circumstances, Appellant
was not in custody during his transportation by the officers to Lexington.
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Applying the factors discussed in Smith, it is similarly clear that, on
balance, Appellant was not in custody for Miranda purposes while he was being
interviewed at the police station. Although police stations are certainly not the
most relaxing venue for questioning, they are one of the most common. In
addition, nothing in the record indicates that the officers threatened or
physically contacted Appellant, nor did they display a threatening presence
during the interview. See Mendenhall, 446 U.S. at 554. Furthermore, the
interview lasted only two hours. This is not an unreasonable amount of time
for questioning.
In Beckham v. Commonwealth, for example, the Court determined that
the defendant was not in custody even though the defendant's encounter with
the police lasted over six hours. 248 S.W.3d 547, 551 (Ky. 2008). In support
of its ruling, the Court noted that the interviewing officers informed the
defendant that he was free to leave, that the defendant never expressed any
desire to leave or cease his cooperation, and that the defendant was not
physically coerced by the officers. Id. at 551-53.
Similar to Beckham, the interrogating officer in the present case,
Sergeant Greenleaf, informed Appellant that he was not under arrest and that
he did not want Appellant to think that he was keeping Appellant there.
Appellant stated that he wanted to talk. At no time during the two hour
interview did Appellant ask to leave or be taken back to his residence. Under
these circumstances, "a reasonable person would have believed he or she was
free to leave." Smith, 312 S.W.3d at 358.
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Therefore, Appellant was not in custody and, thus, not entitled to
Miranda warnings. As such, Sergeant Greenlears incomplete recitation of the
Miranda warnings prior to the interview was unnecessary and irrelevant for
purposes of the foregoing analysis. Accordingly, we affirm the trial court's
denial of Appellant's motion to suppress.
Conclusion
For the foregoing reasons, we hereby affirm the judgment and sentence
of the Fayette Circuit Court.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Linda Roberts Horsman
Assistant Public Advocate
COUNSEL FOR APPELLEE:
Andy Beshear
Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
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