Commonwealth of Virginia v. Aaron Matthew Floyd ( 2011 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Haley, Beales and Alston
Argued by teleconference
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 0783-11-3 JUDGE ROSSIE D. ALSTON, JR.
SEPTEMBER 13, 2011
AARON MATTHEW FLOYD
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
Joseph W. Milam, Jr., Judge
Leah A. Darron, Senior Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellant.
James C. Martin (Martin & Martin Law Firm, on brief), for
appellee.
The Commonwealth appeals the trial court’s pretrial order granting a motion to suppress
statements made by Aaron Matthew Floyd to police during questioning on May 3, 2010. On
appeal, the Commonwealth argues that the trial court erred in granting the motion to suppress
because Floyd was not “in custody” for purposes of Miranda v. Arizona, 384 U.S. 436 (1966),
when police questioned him. For the reasons that follow, we find that the trial court erred in
granting the motion to suppress and remand the case for a trial on the merits if the
Commonwealth is so inclined.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
I. Background 1
When we review a trial court’s denial of a motion to suppress, “[w]e view the evidence in
a light most favorable to . . . the prevailing party below, and we grant all reasonable inferences
fairly deducible from that evidence.” Commonwealth v. Grimstead, 12 Va. App. 1066, 1067,
407 S.E.2d 47, 48 (1991).
So viewed, the evidence indicated that on May 3, 2010, shortly after 11:00 p.m., Corporal
J.E. Garrett and Officer Larry Land of the Danville Police Department responded to a report of
skateboarders behind a retirement home on Bridge Street in Danville. When Garrett arrived, he
observed five individuals whose ages he could not determine riding their skateboards near an
entrance to the building.
As soon as Garrett arrived, the individuals picked up their skateboards as if they were
about to leave. Garrett saw Floyd walk near a concrete porch and discard a white cloth over the
railing and onto the pavement. Believing that this behavior was “odd,” Garrett instructed the
individuals to sit on the porch steps and told Land to watch them. Meanwhile, Garrett went to
investigate the item discarded by Floyd. As Garrett approached the area where Floyd had
discarded the cloth, Floyd said, “Ain’t [sic] nobody over there.” Upon examination of that area,
Garrett found a white T-shirt and an amber pill bottle with no name on it. The pill bottle
contained one pink pill imprinted “E613 10” and the metal end of a hose clamp. Garrett
suspected that the pill was contraband because the bottle lacked a prescription label.
Garrett then returned to his police car, placed the items on the hood of his car, and told
Land to have Floyd come over to speak with him. At that point, Garrett believed that Floyd was
1
As the parties are fully conversant with the record in this case and because this
memorandum opinion carries no precedential value, this opinion recites only those facts and
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this
appeal.
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not free to leave; however, Garrett never stated this belief to Floyd. When Floyd approached the
car, he said, “I’m in trouble, aren’t I?”
A brief exchange then occurred between Garrett and Floyd. At the hearing on the motion
to suppress, Garrett described the exchange as follows:
I walked up to the front of my vehicle, and set the two items on the
hood. Officer Land instructed [Floyd] to come up. [Floyd] walked
up to the side of the fender where the two items lay on the hood,
and he said, “I’m in trouble, aren’t I[?]” And I said, “This
yours[?]” And he replied, “Yes.” I asked him if he had a
prescription for it, and he said, “No.” I asked him what it was, and
he said it was a strong pain reliever. I asked him where he got it,
and at first he didn’t want to answer, but then he told me he got it
where he worked, at Western Sizzlin on Riverside. He had
purchased the tablet from a young man named John Pyron,
described . . . what he drove, and told me he had paid ten dollars
for it.
Floyd also described Pyron’s appearance after further questioning by Garrett.
After the discussion, Garrett did not arrest, handcuff, or issue Floyd a summons that
night. Garrett believed Floyd returned home after their encounter.
Garrett subsequently confirmed that the pink pill he found was Oxymorphone, a Schedule
II controlled substance. Over two months later, Floyd was arrested on July 20, 2010, for
knowingly or intentionally possessing the Oxymorphone, a Schedule II controlled substance,
without a prescription in violation of Code § 18.2-250.
Before trial, Floyd moved to suppress his May 3, 2010 statements to Garrett following
the statement, “I’m in trouble, aren’t I?” on the ground that the statements were obtained in
violation of the Fifth Amendment. 2 After a hearing on the motion to suppress, the trial court
found that Floyd was lawfully temporarily detained under Terry v. Ohio, 392 U.S. 1 (1968).
However, the trial court also found that Floyd’s detention was akin to a formal arrest and
2
Floyd also moved to suppress his statements on the ground that he was unlawfully
detained and moved to suppress the contraband under the Fourth Amendment. The trial court
denied both of these motions, and they are not before the Court in the instant appeal.
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consequently the Fifth Amendment required that Garrett provide Miranda warnings before
questioning Floyd. As a result, the trial court granted Floyd’s motion to suppress his statements
to Garrett. This appeal followed.
II. Analysis
On appeal, the Commonwealth contends that Floyd was not in custody when Garrett
questioned him and so Miranda warnings were not required.
Under Miranda, before a suspect in police custody may be
questioned by law enforcement officers, the suspect must be
warned that he has a right to remain silent, that any statement he
makes may be used as evidence against him, and that he has a right
to have an attorney, either retained or appointed, present to assist
him.
Dixon v. Commonwealth, 270 Va. 34, 39, 613 S.E.2d 398, 400 (2005) (emphasis added).
“Miranda warnings are implicated only during a custodial interrogation.” Bailey v.
Commonwealth, 259 Va. 723, 745, 529 S.E.2d 570, 583 (2000).
Whether a person is “in custody” for purposes of one’s rights pursuant to Miranda is a
mixed question of law and fact. Thompson v. Keohane, 516 U.S. 99, 102 (1995). In our
analysis, “we are bound by the trial court’s findings of historical fact unless ‘plainly wrong’ or
without evidence to support them.” McGee v. Commonwealth, 25 Va. App. 193, 198, 487
S.E.2d 259, 261 (1997) (en banc) (citing Ornelas v. United States, 517 U.S. 690, 699 (1996)).
However, “we review de novo the trial court’s application of defined legal standards, such as . . .
‘custodial interrogation,’ to the particular facts of a case.” Ford v. Commonwealth, 28 Va. App.
249, 255, 503 S.E.2d 803, 805 (1998) (citing Ornelas, 517 U.S. at 700; Shears v.
Commonwealth, 23 Va. App. 394, 398, 477 S.E.2d 309, 311 (1996)).
“Whether a suspect is ‘in custody’ under Miranda is determined by the circumstances of
each case, and ‘the ultimate inquiry is simply whether there is a formal arrest or restraint on
freedom of movement of the degree associated with formal arrest.’” Harris v. Commonwealth,
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27 Va. App. 554, 564, 500 S.E.2d 257, 262 (1998) (quoting California v. Beheler, 463 U.S.
1121, 1125 (1983)) (internal quotation marks omitted). The determination of whether a suspect
is in custody “‘depends on the objective circumstances of the interrogation, not on the subjective
views harbored by either the interrogating officers or the person being questioned.’” Id. (quoting
Stansbury v. California, 511 U.S. 318, 323 (1994)). Thus, the question is whether a “reasonable
person in the suspect’s position would have understood that he or she was under arrest”; if so,
Miranda warnings are required before questioning. Id.
This Court has identified a number of circumstances to be considered when determining
whether or not a suspect was in custody, including
(1) the manner in which the individual is summoned by the police,
(2) the familiarity or neutrality of the surroundings, (3) the number
of officers present, (4) the degree of physical restraint, (5) the
duration and character of the interrogation, and (6) the extent to
which the officers’ beliefs concerning the potential culpability of
the individual being questioned were manifested to the individual.
Id. at 565, 500 S.E.2d at 262. “However, no single factor alone may necessarily establish
custody for Miranda purposes, and not all factors may be relevant in a given case.” Wass v.
Commonwealth, 5 Va. App. 27, 33, 359 S.E.2d 836, 839 (1987).
The Supreme Court of the United States has also discussed the applicability of Miranda
in the context of lawful Terry stops. Specifically, the Court has held that, during a Terry stop, a
police officer
may ask the detainee a moderate number of questions to determine
his identity and to try to obtain information confirming or
dispelling the officer’s suspicions. . . . The comparatively
nonthreatening character of detentions of this sort explains the
absence of any suggestion in our opinions that Terry stops are
subject to the dictates of Miranda.
Berkemer v. McCarty, 468 U.S. 420, 439-40 (1984) (footnotes omitted); see also Bosworth v.
Commonwealth, 7 Va. App. 567, 572, 375 S.E.2d 756, 759 (1989) (“Although an accused in
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custody must be advised of certain constitutional rights prior to being questioned, a Terry stop of
a person to investigate a suspicion is not necessarily subject to the requirements of Miranda.”
(citation omitted)).
We find the case of Ford v. Commonwealth, 28 Va. App. 249, 503 S.E.2d 803 (1998),
instructive in its analysis and controlling in the instant case. In Ford, a detective observed the
defendant walking with two women in the parking lot of a shopping mall and carrying a white
plastic bag. 28 Va. App. at 253, 503 S.E.2d at 804. As he approached a wooded area on the east
side of the parking lot, the defendant separated from the two women and entered the wooded
area. Id. He then exited the wooded area and returned to the two women without the white
plastic bag, and all three walked into the mall. Id. The detective went into the woods and found
a white plastic bag similar to the one he had seen the defendant carry into the woods hidden
underneath two old mattresses. Id. Inside the bag were five pieces of women’s clothing with
store tags attached. However, there was no sales slip or receipt inside the bag. Id. at 253, 503
S.E.2d at 804-05.
When the defendant and the women exited the mall a short time later, the detective and
three uniformed police officers stopped them by approaching them in their police cruisers with
blue police lights activated. Id. at 253-54, 503 S.E.2d at 805. The detective approached the
defendant and asked for his name and identification, which the defendant did not provide. Id. at
254, 503 S.E.2d at 805. The detective also asked the defendant to explain his actions in the
parking lot; the defendant denied being on mall property, carrying a bag, or knowing the two
women with him. Id. The defendant was not read his Miranda rights until thirty minutes after he
was questioned. Id.
In Ford, this Court held that the defendant was not in custody when the detective
questioned him. Id. at 257, 503 S.E.2d at 806. In so holding, the Court noted that (1) the
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defendant “was detained on a public street in the middle of the afternoon”; (2) “[a]lthough [the
defendant] was not free to leave, he was not restrained, handcuffed, or searched”; (3) although
four officers were present, there were three suspects; (4) the defendant “was not surrounded, and
only [the detective] asked him questions”; (5) the “police may, within the scope of an
investigative stop, ask a suspect to explain suspicious circumstances”; (6) the detective “never
told the [defendant] that he was being apprehended for alleged grand larceny”; and (7) the
defendant’s thirty-minute detention was irrelevant to the custody determination. Id.
Similarly, in the instant case, (1) Floyd was detained in a public area, in view of at least
four other people, albeit at night; (2) Floyd was not physically restrained, handcuffed, or
searched, although he was told to sit on porch steps and another officer was told to watch him;
(3) although two officers were present, there were five individuals also present; (4) Floyd was
not surrounded, and only Garrett questioned him; (5) Garrett never told Floyd he was under
arrest or not free to leave 3; and (6) Floyd was detained for only a brief period of time and
actually left the scene of the incident without being arrested or issued a summons.
The evidence in the instant case also shows that Garrett singled out Floyd among a group
of five individuals for police questioning, asked Floyd to move a short distance from the porch
steps to the outside of the patrol car, and confronted Floyd with evidence of his guilt, i.e., the
T-shirt, pill bottle, and pill, during questioning. This Court has held that whether a defendant
was singled out for questioning and confronted with evidence of his guilt is one of the proper
inquiries in assessing whether an individual is in custody. Taylor v. Commonwealth, 10
Va. App. 260, 268, 391 S.E.2d 592, 597 (1990) (finding that a defendant was not in custody
during police questioning in part because “[t]he question was put generally [to a group of four
3
The trial court correctly pointed out that the initial interaction between Floyd and
Garrett was a lawful Terry stop. This determination was not appealed. Thus, as part of an
investigatory stop, Garrett was entitled to ask Floyd to explain suspicious circumstances.
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people] and was not directed to any one specific person”); Wass, 5 Va. App. at 33, 359 S.E.2d at
839 (stating that “the extent to which [a defendant] is confronted with evidence of guilt” is a
factor to consider in determining custody).
However, no single factor is determinative when evaluating whether a defendant is in
custody when questioned; instead, “[t]he totality of circumstances must be considered.” Wass, 5
Va. App. at 32, 359 S.E.2d at 839. In addition, “the fact that an investigation has focused on the
defendant does not determine custody.” Bosworth, 7 Va. App. at 573, 375 S.E.2d at 759.
Moreover, the fact that Floyd was asked to move a short distance from the porch steps to the
patrol car to speak with Garrett does not suggest that he was in custody. See Nash v.
Commonwealth, 12 Va. App. 550, 553, 404 S.E.2d 743, 744 (1991) (finding that the defendant
was not in custody when he was returned to the scene of a car accident a quarter of a mile away
and questioned about the accident).
The evidence in this case suggests that Garrett implicitly manifested his belief in Floyd’s
guilt by singling Floyd out for questioning and confronting him with the T-shirt, pill bottle, and
pill during questioning. If viewed in isolation, this factor may alone weigh in favor of finding
that Floyd was in custody. However, we must view the totality of the circumstances and not just
one factor in isolation. Viewing the totality of the circumstances here, Floyd’s freedom of
movement was not restrained to “the degree associated with formal arrest.” Beheler, 463 U.S. at
1125. Therefore, we hold that Floyd was not in custody when Garrett questioned him. 4
4
The holding of J.D.B. v. North Carolina, 131 S. Ct. 2394 (2011), is not relevant in the
instant case. In J.D.B., the Supreme Court held that the age of a child subjected to police
questioning is relevant to the custody analysis of Miranda. 131 S. Ct. at 2398-99. J.D.B. “was a
13-year-old, seventh grade student attending class” at a middle school when he was removed
from his class and then questioned by police. Id. at 2399. In the instant case, Floyd was 20 years
old at the time he was questioned and, although Garrett could not immediately determine Floyd’s
age from his appearance, the record indicates that Floyd was 6’3” tall and weighed 195 pounds.
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Because we hold that Floyd was not in custody, Garrett was not required to provide
Miranda warnings to Floyd before questioning him. Thus, the trial court erred in granting
Floyd’s motion to suppress, and we reverse the suppression order and remand for trial if the
Commonwealth be so inclined.
Reversed and remanded.
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