UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v. No. 96-4876

TONY LEONG,

Defendant-Appellee.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Alexander Williams Jr., District Judge.

(CR-96-272)

Argued: May 5, 1997

Decided: June 26, 1997

Before WILKINS, Circuit Judge,

Joseph F. ANDERSON, Jr., United States District Judge for the

District of South Carolina, sitting by designation,

and TRAXLER, United States District Judge for the

District of South Carolina, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Hollis Raphael Weisman, Assistant United States Attorney, Hyattsville, Maryland, for Appellant. John Chamble, Assistant

Federal Public Defender, Greenbelt, Maryland, for Appellee. ON

BRIEF: Lynne A. Battaglia, United States Attorney, Hyattsville,
Maryland, for Appellant. James K. Bredar, Federal Public Defender,

Lauren E. Case, Staff Attorney, Greenbelt, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellee Tony Leong ("Leong") was indicted for being a felon in

possession of a firearm in violation of 18 U.S.C.A.§ 922(g) (West

Supp. 1997). Prior to trial, Leong moved to suppress his statement

admitting ownership of the firearm on the ground that the statement

had been made in violation of Miranda v. Arizona , 384 U.S. 436

(1966). The district court granted the motion to suppress and the Government appealed pursuant to 18 U.S.C.A. § 3731 (West 1985). We

affirm.

I.

On June 1, 1996 at approximately 3:00 a.m., United States Park

Police Officer Matthew Nichols ("Nichols") observed a vehicle

speeding on Maryland Route 197, a two-lane highway just off the

Baltimore-Washington Parkway. Nichols activated his emergency

equipment and the vehicle pulled to the side of the road. According

to Nichols, the area where the stop occurred was dark, heavily

wooded, and fairly isolated. Once the vehicle was stopped, Nichols

approached it, asked the driver for his license and registration, and

issued the driver a warning citation for speeding. While speaking with

the driver, Nichols noticed an odor of alcohol coming from inside the

vehicle, which contained three additional passengers, including

Leong. Nichols asked the driver if he had consumed any alcohol and

whether alcohol was in the vehicle. The driver denied both inquiries,

but stated that some of his passengers may have been drinking alcohol

earlier. Upon further questioning, Nichols determined that the driver

and all passengers were under 21 years of age.

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Nichols asked if he could search the vehicle and the driver consented. The driver and all passengers then exited the vehicle and

walked to its rear at Nichols' request. During the ensuing search,

Nichols discovered a handgun in a plastic holster on the floor behind

the driver's seat. According to Nichols' testimony, no one was free

to leave the scene once he found the firearm. Nichols retrieved the

firearm, walked to the rear of the vehicle, and ordered all four individuals to squat and put their hands above their heads. Nichols then

asked Leong and his companions who owned the firearm, but no one

answered. After a few moments, the driver became somewhat distraught and also asked the others who owned the firearm. When no

one responded, Nichols testified, he advised Leong and the others that

they were "all going to be placed under arrest" until he could determine who owned the firearm. Although he did not read them their

Miranda rights, Nichols testified he again asked who owned the firearm, at which point Leong confessed his ownership.

On July 15, 1996, the grand jury for the District of Maryland

returned an indictment charging Leong with being a felon in possession of a firearm. See 18 U.S.C.A. § 922(g) (West Supp. 1997).

Leong filed a motion to suppress his statement admitting ownership

of the firearm found in the vehicle. According to Leong, suppression

of the statement was required because the statement was made after

he was in custody, in response to interrogation by Nichols, but without his having been given the benefit of Miranda warnings. Conversely, the Government asserted Leong was not in custody at the

time he made the statement and, therefore, Miranda warnings were

not required. At the suppression hearing, Nichols was the only witness called to testify. The district court ruled that Leong was in custody and suppressed the statement. The Government appealed.

II.

It is well established that persons subjected to custodial interrogation are entitled to the procedural safeguards prescribed by Miranda

v. Arizona, 384 U.S. 436 (1966). See Stansbury v. California, 511

U.S. 318, 322 (1994) (per curiam). In Miranda , the Supreme Court

afforded protection to the Fifth Amendment privilege against compelled self-incrimination "from the coercive pressures that can be

brought to bear upon a suspect in the context of custodial interroga-

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tion." Berkemer v. McCarty, 468 U.S. 420, 428 (1984). The Miranda

Court held that a suspect interrogated while in police custody "`must

be warned 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.

at 429 (quoting Miranda, 384 U.S. at 444). Statements made by a suspect during custodial interrogation are inadmissible as evidence of

guilt unless prior Miranda warnings were given. See Stansbury, 511

U.S. at 322; Berkemer, 468 U.S. at 429; United States v. Leshuk, 65

F.3d 1105, 1108 (4th Cir. 1995).

The purposes of the safeguards prescribed by Miranda are

to ensure that the police do not coerce or trick captive suspects into confessing, to relieve the inherently compelling

pressures generated by the custodial setting itself, which

work to undermine the individual's will to resist, and as

much as possible to free courts from the task of scrutinizing

individual cases to try to determine, after the fact, whether

particular confessions were voluntary.

Berkemer, 468 U.S. at 433 (internal quotation marks & footnotes

omitted).

For purposes of Miranda, custodial interrogation is defined 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.'" Berkemer, 468 U.S. at 428 (quoting

Miranda, 384 U.S. at 444). A person is "in custody" if he "has been

formally arrested or if he is questioned under circumstances in which

his freedom of action is curtailed `of the degree associated with a formal arrest.'" Leshuk, 65 F.3d at 1108 (quoting Stansbury, 511 U.S. at

322).

To determine if a suspect was "in custody" at the time of law

enforcement questioning, "[t]wo discrete inquiries are essential to the

determination: first, what were the circumstances surrounding the

interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the

interrogation and leave." Thompson v. Keohane , 116 S. Ct. 457, 465

(1995) (footnote omitted). The first inquiry is a factual one and is

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reviewed for clear error. Id.; Leshuk , 65 F.3d at 1110. The latter

inquiry "calls for application of the controlling legal standard to the

historical facts. This ultimate determination . . . presents a mixed

question of law and fact qualifying for independent review."

Thompson, 116 S. Ct. at 465 (internal quotation marks omitted). The

Government does not challenge the district court's factual findings;

therefore, the only question before the court is one of law subject to

de novo review. It is undisputed that Miranda warnings were not

given to Leong until after he admitted his ownership of the firearm

and that the statement was made in response to the interrogation by

Nichols. Thus, the issue for review is whether Leong was "in custody"

for purposes of Miranda; if so, his admission was properly suppressed

by the district court.

A.

In Berkemer v. McCarty, the Supreme Court considered "whether

the roadside questioning of a motorist detained pursuant to a routine

traffic stop should be considered `custodial interrogation'" for purposes of Miranda. Berkemer, 468 U.S. at 435. Although such a stop

"significantly curtails the `freedom of action' of the driver and the

passengers," id. at 436, the Court held that "persons temporarily

detained pursuant to [ordinary traffic] stops are not `in custody' for

the purposes of Miranda" due to the "noncoercive" nature of such

stops, id. at 440.

Specifically, the Court found two characteristics of routine traffic

stops that "mitigate the danger that a person questioned will be

induced `to speak where he would not otherwise do so freely.'" Id.,

468 U.S. at 437 (quoting Miranda, 384 U.S. at 467). First, unlike a

station house interrogation, the detentions are"presumptively temporary and brief." Id., 468 U.S. at 437. Second, such detentions share

the characteristics of occurring in public and of being less police

dominated, reducing the potential that police will use improper methods to elicit self-incriminating statements and diminishing the suspect's fear that lack of cooperation will be met with abuse. See id. at

438-39. Such detentions, the Court held, are similar to investigative

stops pursuant to Terry v. Ohio, 392 U.S. 1 (1968). Berkemer, 468

U.S. at 439. "`[T]he person detained is not technically free to leave

while the officer pursues the investigation,'" but "Terry stops differ

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from custodial interrogation in that they must last no longer than necessary to verify or dispel the officer's suspicion." Leshuk, 65 F.3d at

1109 (quoting United States v. Manbeck, 744 F.2d 360, 376-77 (4th

Cir. 1984)).

The Berkemer Court, however, refused to adopt a bright-line rule

that Miranda warnings are never required during Terry stops or routine traffic stops. On the contrary, the Court specifically noted that

"the safeguards prescribed by Miranda become applicable as soon as

a suspect's freedom of action is curtailed to a`degree associated with

formal arrest,'" and "[i]f a motorist who has been detained pursuant

to a traffic stop thereafter is subjected to treatment that renders him

`in custody' for practical purposes, he will be entitled to the full panoply of protections prescribed by Miranda." Berkemer, 468 U.S. at 440

(quoting California v. Beheler, 463 U.S. 1121, 1125 (1983) (per

curiam)).

"[T]he initial determination of 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." Stansbury, 511 U.S. at 323. Thus, "[a] policeman's unarticulated plan has no bearing on the question whether a suspect was `in

custody' at a particular time; the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation." Berkemer, 468 U.S. at 442. If, however, an officer's views or

beliefs are manifested to the suspect under interrogation and would

have affected how a reasonable man would have understood his situation, they become factors to consider. See Stansbury, 511 U.S. at 325;

Berkemer, 468 U.S. at 441-42. Thus, in Berkemer, the Supreme Court

determined that the suspect was not in custody during the short period

of time between his detention and arrest in part because the suspect

was not informed that his detention would be other than temporary.

Berkemer, 468 U.S. at 441-42.

B.

Whether the investigative stop had evolved into a custodial interrogation when Leong confessed depends upon whether all the facts and

circumstances would have led a reasonable person to believe that the

detention was not temporary and that he would not soon be free to

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leave. See Thompson, 116 S.Ct. at 465; Berkemer, 468 U.S. at 437-42.

We agree with the district court that this routine traffic stop evolved

into custodial interrogation when Leong was subjected to questioning

by Nichols after being told that he and the others were going to be

placed under arrest until Nichols found out who owned the firearm.

Under these circumstances, a reasonable person would believe that

leaving was not and would not become an option and, on the contrary,

that he was in custody. Since Leong was in custody for purposes of

Miranda at the time he was questioned and because he was not given

the proper Miranda warnings, his statement admitting ownership of

the firearm was properly suppressed by the district court.

III.

For the foregoing reasons, and under the narrow facts presented by

this case, we affirm the decision of the district court suppressing the

statement made by Leong.

AFFIRMED

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