Tenth Circuit on Miranda and 'in custody'

U.S. v. Benard 11-4005 (May 25, 2012 10th Cir.)  

After surveillance and monitoring of a location by federal agents, the court determined there was probable cause to perform a “wall stop” initiated by a state officer at the federal agents’ request.  The accused was ordered back inside his vehicle when he attempted to exit; was told to show his hands, and to exit his vehicle; and was guided by the officer putting a hand on his shoulder.  Friends of the accused came out of a nearby house, and they were ordered to return inside.  The trooper patted the defendant down, found contraband, and was arrested.  The 10th Circuit concluded the accused was ‘in custody’ for purposes of Miranda at that point, and suppressed statements made after that point.


“we conclude that the district court erred in failing to suppress Defendant’s post-arrest statements, particularly his statement that his girlfriend might have left a gun in his car.  The district court concluded that, although Defendant was in custody at the time this statement was made, he was not subjected to interrogation.  The court reasoned that the trooper’s question about what he would find in the vehicle was based on safety concerns and was not reasonably likely to elicit an incriminating

response.  However, as the government concedes on appeal, the public safety exception was inapplicable.  We have held that Miranda warnings are not required for an officer to ask a suspect if he has any guns or sharp objects, so long as the officer has “reason to believe (1) that the defendant might have (or recently have had) a weapon, and (2) that someone other than police might gain access to that weapon and inflict harm with it.”  United States v. DeJear, 552 F.3d 1196, 1201 (10th Cir. 2009) (quotation marks omitted).  In this case, the government has not shown that the trooper had reason to believe someone other than the police might gain access to any weapons in Defendant’s car.  Defendant had already left the car and been taken into custody, and the police had control of the scene and intended to impound the vehicle.  The trooper’s question was “reasonably

likely to elicit an incriminating response from the suspect,” Innis, 446 U.S. at 301, and -11-was not justified by the public safety exception.


The 10th Circuit cited to a previous analysis to determine when a stopped driver is considered “in custody”, and listed the following, from United States v. Sanchez, 89 F.3d 715, 718 (10th Cir. 1996),:


  • the threatening presence of several officers;
  • the brandishing of a weapon by an officer;
  • some physical touching by an officer;
  • use of aggressive language or tone of voice indicating that compliance with an officer’s request is compulsory;
  • prolonged retention of a person’s personal effects such as identification and plane or bus tickets;
  • a request to accompany the officer to the station; interaction in a nonpublic place or a small, enclosed space; and
  • absence of other members of the public.
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