Conboy v. State , 155 Md. App. 353 ( 2004 )

KRAUSER, Judge.

While under the influence of alcohol, appellant, David Con-boy, crashed a Ford van into a ditch by the side of a state road. The van contained construction equipment and was littered with alcoholic beverages. Leaving the badly damaged vehicle where it lay, appellant fled the scene of the accident only to return later, in a taxicab, to retrieve his belongings and the equipment. His return, however, was met by more than a wrecked vehicle. A state trooper had arrived and was investigating the accident.

As the trooper approached the cab, he asked appellant whether he was “Mr. Conboy,” the man who the trooper had reason to believe was driving the van at the time of the accident. Inebriated and reeking of alcohol,¹ appellant responded, “I’m not David Conboy,” thereby revealing what sober reflection might have helped him conceal — his true identity. Unaware of how inculpatory this denial was, appellant then insisted that his name was “George Mitchell Unson” — a less inventive choice than one might think as it apparently belonged to appellant’s step brother, whose reaction to this choice has gone unrecorded.

Observing a rifle in the backseat of the cab, which would later turn out to be loaded, the trooper asked appellant to step out of the cab. When he did, the trooper patted him down for weapons. Upon feeling a key in appellant’s back pocket, the trooper reached into that pocket and retrieved what would ultimately prove to be the key to the van. That, in turn, led appellant to volunteer that he was drunk and had in fact been the driver of the van.

Appellant was subsequently charged with driving while under the influence of alcohol and numerous other traffic violations.² Seeking to exclude evidence of the key and his statement, he filed a motion to suppress in the Circuit Court for Worcester County, claiming that when the trooper reached into his pocket to retrieve the key the trooper exceeded the bounds of a permissible Terry³ stop and that his ensuing inculpatory statement was obtained in violation of the Fifth Amendment. When that motion was denied, appellant was tried upon an agreed statement of facts and convicted of driving while under the influence of alcohol.

He now asks this court to review the refusal of the trial court to suppress these two pieces of evidence. We do so and reach the same result as the trial court did but not necessarily for the same reason.

SUPPRESSION MOTION

The only evidence presented at the suppression hearing was the testimony of State witness, Trooper David Grinnan of the Maryland State Police. He testified that, on May 28, 2002, at approximately 6:02 pm, he responded to a report of “a single vehicle accident at Route 50 and Silver Point Lane in West Ocean City, Worcester County, Maryland.” There, he found an unoccupied “older model Ford van facing eastbound in the westbound ditch, approximately thirty to forty yards past Silver Point Lane.” Badly damaged, the van was almost resting on its side; its driver’s side wheels “ripped from the vehicle.”

The trooper observed “alcohol containers in the vehicle” and further noted that “alcohol had spilled” inside the vehicle, “leaving a strong odor.” In addition to the alcoholic beverages, the van contained a stereo and construction tools and equipment.

The trooper then “ran the registration to find out who the vehicle belonged to, who the operator could be.” He learned that the vehicle’s license plates belonged, not to a Ford van as expected, but “to an '85 Chevrolet van ... registered to a subject named Wolf,” who resided in West Ocean City, Maryland. Unable to further identify the owner of the Ford van, the trooper left the accident scene to interview Wolf at the address he had been given. At that address, he found Wolf, who explained that he had removed the license plates from his Chevrolet van and given them to his brother for “safekeeping.” He also informed the trooper that a “David Conboy,” who was then staying with his brother, had taken the license plates and placed them on the Ford van in question.

Leaving Wolf’s residence, Trooper Grinnan returned to the accident scene, arriving 30 to 40 minutes after he had initially responded to the accident. When he arrived, he observed that the stereo, the construction tools and equipment, and other items had been removed from the van. He concluded that “whoever had wrecked the van ... was still in the area,” reasoning that removal of all of the equipment would have taken several trips. At the suppression hearing, he opined: “[I]f I was a construction person and I wrecked my van and I had twenty thousand dollars’ worth of equipment in there, I am going to keep going back to the van until my equipment is gone because I am not going to leave the van unattended like that.”

A taxicab then “roll[ed] up” to a nearby stop sign. “Thinking that if this person is wrecked he needs to get out of here somehow,” the trooper’s attention shifted to the cab. He saw appellant “in the front passenger’s seat.” Although the taxi cab driver was looking in the trooper’s direction, appellant “would not look at [him] to save his life.” Indeed, “his head was plastered in the opposite direction from mine,” the trooper noted. Appellant’s “continued” refusal to “acknowledge” the trooper, the crash, or the trooper’s marked and well-lit cruiser, only “sparked [the trooper’s] curiosity.” After all, according to the trooper, “when you have that situation, everybody wants to look.” Trooper Grinnan then “pointed the cab over to investigate.”

Approaching appellant, who was still seated in the passenger’s side of the vehicle, the trooper asked, “Mr. Conboy?” Appellant responded, “I’m not David Conboy” and then identified himself as “George Mitchell Unson,” using his stepbrother’s name. According to the trooper, appellant “appeared intoxicated,” and he detected a “strong odor of an alcoholic beverage coming from [appellant’s] breath and person.” A deer rifle and a bottle of Popov vodka lay on the backseat of the cab.

After appellant explained that the rifle was his and that he liked to hunt, the trooper asked appellant to step out of the cab. When he did, the trooper “patted him down ... to make sure that [appellant] did not have any other kind of weapons that may be associated with deer hunting, such as buck knives.”

During the pat down, the trooper felt an object in appellant’s back pocket. He “immediately recognized” that it was “a key of some type,” possibly a car key. “[B iased on the fact that the collision had occurred” and that a vehicle lay “unattended in the ditch,” the trooper placed his hand in appellant’s pocket and retrieved the key. The key turned out to be “a Ford key, belonging to a Ford motor vehicle.” After directing appellant to sit on the ground, the trooper returned to the van with the key. He then “checked the Ford key with the van and turned the ignition over and discovered that the key was, in fact, the key to the [wrecked] van.”

As he returned to where appellant was sitting, Trooper Grinnan remarked, “it’s funny, the key fits.” Appellant “shrugged” and “threw his hands up and said ... ‘what would you do?’ ” Then, according to the trooper, appellant

indicated that he was, in fact, driving the vehicle, and that the rear end locked up and he believed the drive shaft fell out, and the vehicle rotated and came to rest in the ditch. And that he had fled the scene because he was drunk. And then he said, “what would you do?’

Trooper Grinnan placed appellant under arrest. Following the arrest, a person who was only identified as “Trooper Sutka” arrived at the scene of the accident and took possession of the rifle.

STANDARD OF REVIEW

In reviewing a denial of a motion to suppress, we accept the findings of fact made by the circuit court, unless they are clearly erroneous. See Riddick v. State, 319 Md. 180, 183, 571 A.2d 1239 (1990); Marr v. State, 134 Md.App. 152, 163, 759 A.2d 327 (2000). Our review is based solely upon the record developed at the suppression hearing, and we review that record in the light most favorable to the prevailing party. See Wengert v. State, 364 Md. 76, 84, 771 A.2d 389 (2001); Trott v. State, 138 Md.App. 89, 97, 770 A.2d 1045 (2001). We review de novo, however, all legal conclusions, making our own independent constitutional determination of whether the search in question was lawful and whether appellant’s statement was lawfully obtained. See Wengert, 864 Md. at 84, 771 A.2d 389; Trott, 138 Md.App. at 97, 770 A.2d 1045.

ADMISSIBILITY OF THE KEY

While Appellant concedes that “the trooper had reason to feel [his] clothing for weapons,” he contends that the trooper exceeded the limits of a Terry frisk by “taking a key from [his] pocket.” He argues that because the “ ‘incriminating nature of the object [the key] was not immediately apparent’ ” to the trooper, the search was not constitutionally permissible under the plain feel doctrine, as promulgated by the Supreme Court in Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993).

In Dickerson, the Supreme Court extended the boundaries of the a “patdown” to allow seizure of contraband discovered during a lawful Terry search as long as the contraband’s “incriminating character is immediately apparent” by sight or touch. 508 U.S. at 375, 113 S.Ct. 2130. But if the incriminating nature of the item cannot be discerned without further physical investigation, then the seizure of the object cannot be justified under the “plain view” doctrine or its corollary, “plain feel.” See id.

In support of his claim that the “incriminating nature” of the key was “not immediately apparent,” as required by a “plain feel” seizure, appellant cites the following testimonial excerpt to show that Trooper Grinnan did not know, at the time he reached into appellant’s pocket, that the key he felt, during the pat down, was even a car key, let alone the key to the disabled van:

[PROSECUTOR:] Did you take any precautions as a result of having seen the weapon on the back seat?

[TROOPER GRINNAN:] Yes, I did. I asked Mr. Conboy if he had any other weapons in his possession, and he indicated that he did not. I patted him down, his external garments, to make sure that he did not have any other kind of weapons that maybe associated with deer hunting, such as buck knives, those sorts of things, that are commonly carried by hunters.

[Prosecutor:] What was Mr. Conboy wearing?

[TROOPER GRINNAN:] He had shorts and a dirty tee shirt on, I believe.

[PROSECUTOR:] Did you locate any other weapons on him?

[TROOPER GRINNAN:] No weapons.

[PROSECUTOR:] Did you locate any other evidence on him that would relate to the initial incident that you were investigating?

[TROOPER GRINNAN:] That is correct.

[PROSECUTOR:] What did you learn?

[TROOPER GRINNAN:] During a pat down, I believe — I have to refer to my report, I believe it was his back pocket of his shorts — that’s correct, in the rear pocket of his shorts, I felt what I immediately recognized as a car key, or key of some type, not necessarily a car key, but it was a key. And based on the fact that the collision had occurred and I had a vehicle that was unattended in the ditch, I retrieved the key from his pocket, and I observed that it was a Ford key, belonging to a Ford motor vehicle.

[PROSECUTOR:] All right. What did you do with the key?

[TROOPER GRINNAN:] At this point, Trooper Sutka had arrived. No, correction, Trooper Sutka had not arrived at this point. I checked the Ford key with the van and turned the ignition over and discovered that the key was, in fact, the key to the van.

The trial court disagreed with appellant’s conclusion. It upheld the search, stating that “in the process of the pat down, if [the trooper] discovers something that is certainly relevant, such as the key that may fit the vehicle that they can’t find the driver for, [the trooper] has the right to go ahead and seize the key.” We agree with the circuit court. The trooper’s seizure of the key did not violate the Fourth Amendment — but not for the reasons espoused by that court.

The plain feel doctrine, although often described as a corollary of the plain view doctrine, poses special problems of its own. In a nutshell, plain feel is more intrusive yet less conclusive than plain view. But we need not reach the question of whether the seizure of the key was justifiable under that doctrine today, because the search at issue is sustainable under another exception to the warrant requirement of the Fourth Amendment. It was a search incident to a lawful arrest. And, on that ground, we shall affirm the decision of the circuit court. See Md. Rule 8-131(a); Modecki v. State, 138 Md.App. 372, 771 A.2d 521 (2001).

We begin our discussion of the propriety of the search at issue by observing that a police officer with probable cause to believe that a suspect has or is committing a crime may arrest the suspect without a warrant. See Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). This is true in cases where the person “has committed even a very minor criminal offense,” such as a traffic violation. Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001). Once lawfully arrested, police may search “the person of the arrestee” as well as “the area within the control of the arrestee” to remove any weapons or evidence that could be concealed or destroyed. United States v. Robinson, 414 U.S. 218, 224, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). Moreover, as long as police have probable cause to arrest before they search the arrestee, it is not “particularly important that the search precede the arrest rather than vice versa.” Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); see Lee v. State, 311 Md. 642, 668, 537 A.2d 235 (1988).

In his comprehensive multi-volume work, Search and Seizure, Professor Wayne R. LaFave explains why federal⁴ and state⁵ courts have rejected any test that would require that an arrest always precede the search at issue, before invoking this exception. See Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, vol. 3, § 5.4, at 152-55 (3d ed. 1996 & Supp.2004). He begins his explanation by quoting from the concurring opinion of Justice John Marshall Harlan in Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), and the opinion authored by Justice Roger Traynor in People v. Simon, 45 Cal.2d 645, 290 P.2d 531 (1955).

Their words bear repeating. In his Sibron concurrence, Justice Harlan observed:

Of course, the fruits of a search may not be used to justify an arrest to which it is incident, but this means only that probable cause to arrest must precede the search. If the prosecution shows probable cause to arrest prior to a search of a man’s person, it has met its total burden. There is no case in which a defendant may validly say, “Although the officer had a right to arrest me at the moment when he seized me and searched my person, the search is invalid because he did not in fact arrest me until afterwards.”

Sibron, 392 U.S. at 77, 88 S.Ct. 1889 (Harlan, J., concurring).

“[Tjhe proposition stated by Justice Harlan,” Professor LaFave points out, “does not broaden the power of the police, but instead gives some added measure of protection to those reasonably but mistakenly suspected of criminal behavior.” See LaFave, supra, vol. 3, § 5.4, at 154. That point, the professor notes, was also made by Justice Traynor in People v. Simon, 45 Cal.2d 645, 290 P.2d 531 (1955). See id. In that case, Justice Traynor wrote:

[I]f the officer is entitled to make an arrest on the basis of information available to him before he searches, and as an incident to that arrest is entitled to make a reasonable search of the person arrested and the place where he is arrested, there is nothing unreasonable in his conduct if he makes the search before instead of after the arrest. In fact, if the person searched is innocent and the search convinces the officer that his reasonable belief to the contrary is erroneous, it is to the advantage of the person searched not to be arrested. On the other hand, if he is not innocent or the search does not establish his innocence, the security of his person, house, papers, or effects suffers no more from a search preceding his arrest than it would from the same search following it.

Simon, 45 Cal.2d at 648, 290 P.2d 531.

And that reasoning led the Supreme Court to declare, in Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980), that, “where the formal arrest followed quickly on the heels of the challenged search of petitioner’s person, we do not believe it particularly important that the search preceded the arrest rather than vice versa.”

In Rawlings, during a warrant-authorized search of a house, one of the occupants was ordered to empty her purse. 448 U.S. at 101, 100 S.Ct. 2556. When she did, it was observed to contain controlled substances. Id. The occupant then turned to Rawlings, who was standing nearby, and told him “to take what was his.” Id. Rawlings “immediately claimed ownership” of the drugs. Id.

The police arrested Rawlings but not before searching him and finding $4,500 and a knife. Id. The pre-arrest search of Rawlings’ person was subsequently upheld as a valid search incident to an arrest, regardless of the fact that it had preceded his arrest, a distinction which the Court, as previously noted, did not feel was “particularly important.” See id. at 111, 100 S.Ct. 2556.

The lesson of Rawlings has not been lost on Maryland’s appellate courts. WTien the issue of such pre-arrest searches has arisen, they have upheld them so long as a lawful arrest followed the search. See Lee, 311 Md. at 668, 537 A.2d 235; Wilson v. State, 150 Md.App. 658, 822 A.2d 1247 (2003); Anderson v. State, 78 Md.App. 471, 553 A.2d 1296 (1989). As to how quickly the arrest must follow the search, Maryland’s appellate courts have approved searches when the arrest occurred immediately after the search, see, e.g., Lee, 311 Md. at 668, 537 A.2d 235; Wilson, 150 Md.App. at 674, 822 A.2d 1247, and when it occurred “a few minutes” later. Anderson, 78 Md.App. at 487, 553 A.2d 1296.

As in Rawlings, the pre-arrest search at issue here was a valid search incident to a lawful arrest. In response to a question at the suppression hearing, Trooper Grinnan stated that he had arrested appellant for “leaving the scene of a property damage collision.” There is no provision of the Maryland Code that authorizes an officer to arrest a driver for leaving the scene of an accident where the property damage caused by the accident is confined to the driver’s vehicle. But that misstatement is of no consequence. It does not vitiate the lawfulness of appellant’s arrest, as that arrest “was otherwise justified.” Nieves v. State, — Md.App.-,-, —- A.2d-, 2003 WL 23004983, at *5 (2003).

Moreover, it is clear from the trooper’s testimony that his response was never intended to be a complete statement of all of the reasons he arrested appellant. Indeed, he testified that, before arresting appellant, appellant had confessed to driving while under the influence of alcohol. The clear implication of the trooper’s testimony was that he arrested appellant for more than simply “leaving the scene of a property damage collision.”

In any event, at the time of appellant’s arrest, the trooper had probable cause to arrest appellant for driving under the influence of alcohol before he searched him and, as in Rawlings, that arrest “followed quickly on the heels” of the search at issue.⁶ Before Trooper Grinnan even encountered appellant, he observed that someone had crashed a van, strewn with alcoholic beverages, into a ditch and then apparently abandoned it. He also believed that the driver of the van was probably in the area as he observed, upon his return from a brief meeting with the owner of the van’s tags, that the property that had been in the van was now gone. And, from the information that he obtained from the tags owner, he obviously believed that there was a reasonable possibility that “David Conboy” was the driver of the van at the time of the accident. That is why, we can presume, he approached the cab’s passenger asking “Mr. Conboy?”

When a taxicab pulled up and its passenger steadfastly refused to look in the trooper’s direction, notwithstanding the uncommon sight of a badly damaged van and a well-lit police car, the trooper understandably suspected that this individual might be the “David Conboy” he was seeking. So he approached appellant, inquiring “Mr. Conboy?” whereupon appellant unwittingly confirmed the trooper’s suspicions by responding, “I’m not David Conboy.”

Moreover, appellant was at the scene of the accident just after the removal of property from the van. He arrived there in a taxicab, providing the trooper with an explanation of how the van’s driver was able to leave the scene of the accident. At that time, appellant admitted to owning the property in the back seat of the cab, which was the sort of property, particularly the bottle of vodka, that had been removed from the van. And, as if that were not enough, he appeared to be intoxicated and, given the presence of full and empty containers of alcohol inside the van and the condition of the van, the trooper had every reason to believe the van’s driver was too. In sum, the trooper had probable cause to believe that the badly damaged van, which was littered with alcoholic beverages, had apparently been in an alcohol-related accident and that the still inebriated appellant had been the driver of that vehicle. In short, the officer had probable cause to arrest appellant.

Not only was the search of appellant performed after the trooper had probable cause to arrest, but appellant’s arrest occurred within minutes of that search, satisfying both requirements of Rawlings: that there was probable cause to arrest and that the arrest “followed quickly on the heels” of the search. Once the trooper retrieved the key, he went directly over to the van, placed the key in its ignition, and then returned to place appellant under arrest. As the seizure of the key and the arrest of appellant occurred within minutes of each other, the arrest did in fact, as required by Rawlings, follow quickly on the heels of the search. See, e.g., Anderson, 78 Md.App. at 487, 553 A.2d 1296. It was therefore a lawful search incident to an arrest.

ADMISSIBILITY OF THE STATEMENT

Appellant contends that the trial court erred in denying his motion to suppress his statement to police that he was drunk when he crashed the van and fled the scene. He argues that, following the seizure of the van’s key from his pocket, the investigatory stop evolved into a custodial detention. That change, he maintains, required that he be given his “Miranda warnings” before any further words were exchanged between him and the police. Because these warnings were not given, he claims that his admission of intoxication should have been suppressed.

In the landmark case of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court held that statements obtained during the “custodial interrogation” of a suspect were not admissible unless he or she had been previously informed of certain constitutional rights. The Court then defined “custodial interrogation” as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda, 384 U.S. at 444, 86 S.Ct. 1602. Eponymously dubbed “Miranda warnings,” they require the suspect be told that “he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” Id.; see also Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526,128 L.Ed.2d 293 (1994). But these warnings are required only when the person questioned is both in custody and about to be interrogated. See Stansbury, 511 U.S. at 322, 114 S.Ct. 1526.

To determine if a person is in custody, the trial court must make “two discrete inquiries.” State v. Rucker, 374 Md. 199, 210-11, 821 A.2d 439 (2003). First, the court must consider the totality of the circumstances surrounding the interrogation, such as when and where it took place, how long it lasted, how many officers were present, what the police and the defendant said and did, and whether physical restraints or force was used to detain the defendant. See id. at 208, 821 A.2d 439; see also Stansbury, 511 U.S. at 322, 114 S.Ct. 1526. And then, in light of those circumstances, the court must consider whether a reasonable person would have felt “he or she was not at liberty to terminate the interrogation and leave.” Rucker, 374 Md. at 210-11, 821 A.2d 439. If the answer to that question is “yes”, then the questioning was custodial. See id. On the other hand, what an officer may or may not feel about the nature of the detention is irrelevant. A police officer’s unarticulated subjective views that the person questioned is a suspect and that he is not free to leave have no bearing on whether the suspect is in custody for purposes of Miranda.” See Stansbury, 511 U.S. at 323-24,114 S.Ct. 1526.

We next turn to the second part of the Miranda test: whether the statement at issue was elicited by an interrogation. “Interrogation” includes not only “express questioning” but “its functional equivalent.” Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). The “functional equivalent” of interrogation includes “any words or actions on the part of the police ... that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Id. at 801, 100 S.Ct. 1682. In determining whether the police should have known that their words or actions would elicit an incriminating response from the suspect, courts must consider the intent of the police in making the statement or performing the action, whether the police had knowledge of a suspect’s “unusual susceptibility” to persuasion, and whether the police invited the suspect to respond to their statements or actions. See id. at 302, 100 S.Ct. 1682. Indeed, interrogation “must reflect a measure of compulsion above and beyond that inherent in custody itself,” and a suspect’s incriminating response must be “the product of words or actions on the part of police.” Id. at 301, 303, 100 S.Ct. 1682.

In State v. Rucker, 374 Md. 199, 821 A.2d 439 (2003), the Court of Appeals considered whether Rucker was in custody for Miranda purposes when he was detained briefly in a public parking lot. In this case, the defendant was suspected of possessing and distributing crack cocaine in Prince Georges County. Rucker, 374 Md. at 203, 821 A.2d 439. Based upon a tip from a confidential informant that Rucker was distributing crack cocaine and would be at particular shopping center, the police were at the shopping in question on the date and at the time given by the informant. Id.

Spotting Rucker, from the description given by the informant, the police stopped him in the shopping center parking lot as he was getting into his car. Id. at 204, 821 A.2d 439. One of the officers, armed and in uniform, asked him for his license and vehicle registration. Rucker complied and handed them to the officer. Id. Then, without first advising him of his “Miranda rights,” two narcotics detectives approached Rucker and asked him “if he had anything that he was not supposed to have.” Id. Rucker replied, “Yes, 1 do, it’s in my pocket ... [its] cocaine.” Id. After retrieving the cocaine from his pocket, the police arrested Rucker. Id.

Affirming the trial court’s decision to suppress Rucker’s statements, this Court held that the parking lot detention of Rucker was more than an investigatory stop because it had become the functional equivalent of an arrest by the time Rucker admitted to possessing cocaine, requiring Miranda warnings. See id. The Court of Appeals, however, disagreed. See id. Observing that the entire incident occurred in a public place, that it took place within a short period of time, that there were only three officers present, that the return of the license and registration was not conditioned upon cooperation, and that only a single, non-coercive question was asked of Rucker before he made the statements at issue, the Court of Appeals found that the defendant “was not in custody for purposes of Miranda because he was not restrained to a degree associated with formal arrest.” Id. at 212, 221, 821 A.2d 439. Consequently, the police were not required to give the “Miranda warnings” to appellant. See id. at 221, 821 A.2d 439.

Like Rucker, appellant was not subject to “custodial interrogation” because he was not in custody at the time he admitted to being drunk. When Trooper Grinnan stopped the taxi, he executed a lawful Terry stop to investigate appellant’s presence and unusual behavior at the accident scene. That investigatory stop had not evolved into a formal arrest or a “restraint on freedom of movement of the degree associated with a formal arrest” before appellant made the statement at issue. Stansbury, 511 U.S. at 322, 114 S.Ct. 1526. Also, like Rucker, appellant was detained on a busy public street during daylight hours, his detention lasted for a short period of time, and there was only one trooper at the scene conducting the investigation. And, finally, prior to the statement, appellant was not placed in handcuffs or otherwise physically restrained; he merely was asked to sit on the ground. That the trooper considered appellant a suspect and that he felt appellant was not “free to leave” have no bearing on the custody issue because the trooper did not communicate those views to appellant. Thus, the totality of the circumstances surrounding appellant’s statement indicate that appellant was not in custody for Miranda purposes when he made he made the statement at issue.

Having determined that appellant was not in custody at the time that he admitted to driving while intoxicated, we now turn to the question of whether that statement was “the product” of interrogation, either “express questioning or its functional equivalent.” Innis, 446 U.S. at 301, 100 S.Ct. 1682. Clearly, it was not. While appellant sat on the ground as instructed, the trooper walked over to the van and placed the key in the ignition. When the key proved to be the van’s ignition key, the trooper walked back, stating “it’s funny, the key fits.” That statement was merely an observation made without inviting a response. See Innis, 446 U.S. at 302-03, 100 S.Ct. 1682 (finding that a conversation between two police officers regarding the location of the gun used in a robbery and murder, which took place in Innis’ presence after he was arrested, was not interrogation because they were “a few off hand remarks” to which “no response was invited”). Appellant nonetheless did respond, stating that “he fled the scene because he was drunk.” Moreover, there is no evidence that the trooper intended to elicit an incriminating response from appellant or should have known that appellant would respond to his remark. Accordingly, we find that appellant’s statement was not the product of interrogation, and therefore the trial court properly admitted his statement into evidence.

JUDGMENT AFFIRMED. COSTS TO BE PAID BY APPELLANT.

1 . It was undisputed at the motion to suppress that at the time of the search at issue, appellant, in the words of the trooper, “appeared intoxicated” and that the trooper “detected a strong odor of an alcoholic beverage coming from his breath and person.”

2 . Appellant was charged with violating the following 13 sections of the Transportation Article:

Section 2 l-902(a)(l): Driving under the influence of alcohol.

Section 21-902(a)(2): Driving under the influence of alcohol per se.

Section 21-902(b): Driving while impaired by alcohol.

Section 20-103(b): Failure to return to and remain at the scene of an accident involving attended vehicle.

Section 20-104 (d): Failure of driver in property damage accident to report to nearest police.

Section 16-303(c): Driving on suspended license.

Section 16-303(d): Driving on a revoked license.

Section: 16-112(c): Failure to display license on demand.

Section 16-112(e): Vehicle driver giving a false and fictitious name to uniformed police.

Section 13-411(g): Displaying registration plate issued to another.

Section 13-409(b): Failure to display registration card on demand.

Section 14-107(f): Knowingly possessing vehicle with remove identification, as the van’s VIN had been removed.

Section 13-401(b): Operating an unregistered motor vehicle.

But the State entered a nolle prosequi as to all of the offenses but one, 21-902(a) D.U.I., the charge upon which appellant was tried and convicted.

3 . See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

4 . See, e.g., United States v. Armstrong, 16 F.3d 289 (8th Cir.1994); United States v. Miller, 925 F.2d 695 (4th Cir.1991); United States v. Hernandez, 825 F.2d 846 (5th Cir.1987); United States v. Gay, 774 F.2d 368 (10th Cir.1985); United States v. Chatman, 573 F.2d 565 (9th Cir.1977).

5 . See, e.g., Lee v. State, 311 Md. 642, 537 A.2d 235 (1988); State v. Melton, 412 So.2d 1065 (La.1982); State v. Valenzuela, 121 Ariz. 274, 589 P.2d 1306 (1979); Wright v. State, 418 So.2d 1087 (Fla.Dist.Ct.App. 1982); People v. Rossi, 102 Ill.App.3d 1069, 58 Ill.Dec. 291, 430 N.E.2d 233 (1981).

6 . That the trooper did not actually observe appellant driving the van is of no consequence. Section 26- 202(a) of the Transportation Article states in part:

(a) In general: A police office may arrest without a warrant a person for a violation of the Maryland Vehicle Law, including any rule or regulation adopted under it, or for any violation of any traffic law or ordinance of any local authority of this State, if:

(3) The officer has probable cause to believe that the person has committed the violation, and the violation is any of the following offenses:

(i) Driving or attempting to drive while under the influence of alcohol, while impaired by alcohol, or in violation of an alcohol restriction....