# FILED

April 23, 1999

Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON DECEMBER 1998 SESSION

STATE OF TENNESSEE, * C.C.A. # 02C01-9807-CC- 00210 Appellee, * DYER COUNTY VS. * Hon. R. Lee Moore , Jr., Judge TIMOTHY WALTON, * (Certifi ed Quest ion of La w) Appellant. *

For Appellant : For Appellee : Charles S. Kelly, At

torney John Knox Walkup Kelly, Millar, Strawn & Kelly Attorney General and Repor ter P.O. Box 507 802 Troy Avenue Peter M. Coughlan Dyersburg, TN 38025-0507 Assistant Attorney Gener al 425 Fifth Avenue North Cordell Hull Buildi ng, Second Floor Nashville, TN 37243-0493 C. Phillip Bivens District Attorney General P.O. Box E Dyersburg, TN 38025-0220

OPINION FILED:__________________________

REVERSED AND DISMISSED

GARY R. WADE, PRESIDING JUDGE2 OPINION The defendant, Timothy Walton, was indicted for burg lary, aggrav ated burglary, and tw

o counts of theft over $500.00. When the trial cour t overruled the motion to suppress evidence, the defendant entered pleas of guilt t o burglary and aggravated burgl ary and, with the appr oval of the state, reserv ed a certified question of law under Rule 37(b)( 2)(i) of the Tennessee Rules of Cr iminal Procedure.
In this appeal, the issue presented for review is whether the trial court erred by failing to ex

clude evidence obtained from inc riminating statements made by the defendant after his arrest. Becau se the officers making the arr est failed to provide Miranda

warnings despite extended opportunities to do so, the defenda nt's statements should have been ex cluded. We must, therefore, reverse the judg ment of the trial court and dismis s the charges against the defendant.
The defendant complains that he was "su rprised at his home by th e arriv al of five law enforcement officers (one ...went to the rear of his pr operty and, without a warrant, allegedly found some propane heaters...), questioned on his porch and in the yard, handcuffed and placed in the backseat of a patrol car and, in spite of the officers' testimony to the contrary, intimi dated, urged, coaxed, coer ced, question ed, and i nterroga ted into revealing t he locati on of ot her stole n propert y, which he retrieved

and turned over to the officers [without ever] hav ing been advised of his rights under Miranda ...." The defendant insists that the s tatements he made as a result of the custodial i nterrogation should hav e been suppressed. He argues that it is "inconceivable that the officers ... did not ask any questions whatsoever" and that his incriminating statements were neither voluntarily nor spontaneously made.3 At the suppression hearing , it was established t hat on May 22, 1997, Officers Jeff Burns, Terry McC reight, and Calvin Johnson of the Dyer County Sheriff's Department, while in the company of two fede ral postal inspectors, Chuck Demont and Hen ry Cooper , traveled in separate

vehicles to the mobile

home residence of the defendant to investigate his possible involvement in post office burglaries. As the other officers went to the front door, Officer Burns walked into the backyard to secure the r ear of the residence. While there, he discov ered a pathway which eventually

led to ten or fifteen marijuana plant s. He also discover

ed several propane heaters near the resid ence. No charges wer e placed against the defendant in regard to either t he marijuana plants or the pro pane heaters.

Upon confronting the defendant, one of the post al inspectors advised that he was investigating a burglary within the post office and asked the defendant to accompany him to the sheriff's department for further questioning . Officer McCreight, who w

as aware that the defendant could n either read nor writ e and was of low intelligence, t

estified that the defendant was not unde r arrest and consented to being transported to the s heriff's department. The officers handcuffed the defendant and placed him in the backseat of an unmarked vehicle. Officer J ohnson, an investigator for the sheriff's department, accompanied the defendant and Officer McCreight. The other officers traveled in different cars. Bef ore entering the police vehicle, the defendant told Officer Johnson that a man named Charles Thompson had been "telling lies" and w as out to "get him." Accordi ng to Officer Johnson, the defendant claimed that he knew that Thomps on had stolen and hidden severa l items an d volunte ered to te ll the of ficer whe re to fin d the prop erty.

Officers McCreight and Jo hnson testified that they did no t ask the defendant any questions after he w as handcuffed and placed into their v ehicle. The4 officers explained that they did not administer Mirandawarnings because they did not consider him to be under ar rest or otherwise i n their custody. They c ontended that the defendant, without any encouragement on their part, l ed the officers to several areas wher

e the officers were able to r ecover a computer, monitor and keyboard, and a rifle. Acc ording to the officers, the defendant pr ovided directions to a point along a public road where a piece of plastic had been tied to a barbe d wire fence. The officers then allowed the def endant, who was still in handcuffs, to walk into a ravine and take poss ession of the monitor, the keybo ard, and computer, all of which had been wrapped in a plastic garbage bag. From there, the officers were directed to the home of the defen dant's father and mother where a rifle, wrapped in a pair of coveralls, had been hidden in a nearby barn. The officers determined that a rifle matched the description of one that had been stolen from the resid ence of Gene Bryson, except that it had no scope. The defendant told officers that he had the scope at his residence. After returning to the defend ant's residence, the officers discovered not only the scope but also an electric heater and stepladder whi ch had been stolen during a burg lary at the Dyers burg warehouse. The defendant w as employed at the warehouse.

At the conclusion of the suppression hearing, the trial court ruled, in pertinent part, as follows:

The defendant was handcuffed before being trans ported. He remained in handcuffs throughout t he process of retrieving stolen property from two different l ocations and then returning back to his house where he retriev ed further stolen property and then back to the sheriff 's department. Viewing thi s matter under the totality of the circumstances, the court finds that a reasonable person in the suspect's position would have considered himself deprived of freedom of movement to a degr ee associated with a formal arrest .... [Any] interroga tion from the t ime the defendant was handcuffed and placed in the officer's vehicle would be a custodial interrogation . The court finds, however, that under the proof elicited at the suppression hearing that there is no evidence that there5 was any interrog ation of the defendant after he was handcuffed. The only testimony av ailable to the court for consideration is the testimony of the three off icers mentioned above.... Officer McC reight and Investig ator Johnson testified that there w as no interrogation and that all of the information given by the defendant was spontaneous and voluntary and not elicited as a result of any interrogation or

suggestion by eithe r officer

. Consequently, althoug h the ... defendant was in custody at the time the information was obtained, ... the information was give n voluntarily by the defendant and not in response to interrogation by either officer. The need for formal Miranda warnings presumes th at the statements are elicited thr ough interrogation or questioning. (Emphasis added).

The state concedes that no waiv ers were obtained before the defendant provided this information and that the defendant had not been advis ed of his rights under Miranda v. Arizo na , 384 U.S. 436 (1966). The state argues, however, th at the sto len goods were recove red "as a r esult of the def endant' s own unsolicited statements" rather than through the police int errogation.

The Fifth Amendment to the United States C onstitution provides that "[n]o person ... shall be compelled in any criminal case to be a witness against himself...." Article I, § 9 o f the Tennessee Constitution prov ides that "in all crimina l prosecutions, the accused ... shall not be compelled to give evidence against himself." See Malloy v. Hogan , 378 U.S. 1 (1964). Generally, one must affirmatively invoke these protections. An exc eption is when a gov

ernment agent makes a custodial interrog ation. Statements made during the course of custodial police interrogation ar

e inadmissible unless the s tate establishes that the defendant was advised of his cons titutional rights as identified in Miranda and then waived those rights. Miranda

requires that police inform the defendant as follows: (1) he has the right to remain si lent; (2) any statement may be used against him; (3) h e has6 the right to the presence of an attorney; and (4) if he cannot hire an attorney, one will be appointed prior

to the interrogation, if he so desires. Miranda , 384 U.S. at 444.

This court must examine the "t otality of the circumstanc es" to ascertain whether the particular defendant knowingly and voluntarily waived his constitutional rights

prior to making self-i ncriminating statements. State v. Bush , 942 S.W.2d 489, 500 (Tenn. 1997). Factors relev ant in determining wheth er the statements are voluntary include (1) the length of time between the arrest and th e confession; (2) the occurren ce of intervening event s between the arrest and confessi on; (3)

the giv ing of Mirandawarnings; and (4) the purpose and flagrancy of the official misconduct. Brown v. Illinois , 422 U.S. 590, 603-04 (1975); State v. Chandler , 547 S.W.2d 918, 92 0 (Tenn. 1977). The overriding question, however, is whether the behavior of l aw enforcement officials serv ed to overbear the defendant's will to resi st. State v. Kelly , 603 S.W.2d 726, 728 (Tenn. 1980); see State v. Howard , 617 S.W.2d 656, 65 8-59 (Tenn. Crim. App. 1981).

Our scope of review i s limited. The findings of fact made by the trial judge at a hearing on a motion to suppress "will be upheld unless the evidence preponderates otherwise." State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996). Questions about witness credibility and "resolution of conflicts in the evidence are matters entrusted to the trial judge." Id. If the "greater weight" of the evidence supports the court's rul ing, it will be upheld. Id.

Custodial interrogati on has three components: (1) that the defendant be in custody; (2) that interrogation occur; an d (3) that the interroga tion be conducted by a state agent. State v. Smith , 933 S.W.2d 450, 453 (Tenn. 1996).7 Initially, the tria l court correctly determined that the defendant was i n custody. The evidence supports the concl usion that there was a suffici ent restraint upon the freedom of movement of the defendant to qualify as an arrest. The trial court included in its fin dings of f act that office rs believe d that th e defen dant "mi ght have some marijuana plants there and mi ght know something r egarding the postal burglaries." That marij uana had been found near his residence w as communicated to the defendant by the officers. All of this supports the trial court's conclusion that the defendant was in custody.

Whether the def endant may have been the focus of the of ficer's investigation is not relevant to the question. The "test is whether ... a reasonable person in the suspect's posi tion would consider hi mself ... deprived of freedom of movement to a degree associat ed with a formal arrest." State v. Anderson , 937 S.W.2d 851, 855 (Tenn. 1996); see Stansberry v. California , 511 U.S. 318 (1994) (by adopting the reasonabl e person objective test t o determine whether a defendant was in custody, the S upreme Court abolished the "focus" factor in determining that the officer's undisclosed, subj ective view w as irrelevant). In Anderson , our supreme court ruled as follows:

Some factors relevant to that ob jective assessment include the time and location of the interrogation; the duration and character of the questioning; the off icer's tone of voice and general demeanor; the suspect's method of transportation to the place of questioning; the number of police officers present; any limitation on movement or other form of restraint imposed on the suspect during the inter rogation; any interac

tions between the officer and the suspect, including the words spoken by the officer to the suspect, and the suspe ct's verbal or non-verb

al responses; the extent to which the suspect is confronted with the law enforcement off icer's suspicions of guilt or ev idence of guilt; and finally , the extent to which the sus pect is made aware that he or she is free to refrain from answer ing questions or to end the interview at w

ill.8 937 S.W.2d at 855. Anderson established a totality of the circumstances test. The factors listed are not inten ded to be exclusive a nd must b e applied on a case- bycase basis. See State v. Cooper , 912 S.W.2d 756 (Tenn. Crim. App. 1995).

In our view, evi dence in the record preponderat es against the trial court's finding that there was no interrogation after the defendant was handcuffed and placed under arrest. There are several reasons for our reaching a different conclusion from that reached by the trial judge. Init ially, the officer's int ent was to investiga te one or m ore burgla ries. Acti ng on a tip provided b y an infor mant, f ive officers were involv

ed in the investigati on. Four confronted the defendant at the front door of his residence w hile a fifth secured the rear of the r esidence. The officers involved, w

ho expressed their intent ion to question the defendant about the crimes, found several mari juana plants and propane tanks w hich they believed had been stolen. The defendant was confronted by officers with this additional information, handcuffed, and placed inside a vehicle driven by Officer McCreight. Afterward, the defendant led tw o of the officers to three different locati ons and provided them with ev

idence which indicated that he had participated in sev eral crimes. While blaming a Charles Thompson for the misconduct and perhaps hoping for lenient treatment, the defend ant provided the officers all they needed for these convictions.
Although the officers general ly asserted that the defendant spontaneously volunteer ed the information, Officer Johnson did a cknowledge asking the defendant to show him wher e the stolen goods were.For example, when the rifle was recovered, Officer Johnson recalled that the off icers asked the defendant if "there was anything else to go to this...." Any such inquiry w

ould qualify as an9 interrogation. So w

ould a request for driv

ing directions to a pla

ce where stolen property was hidden.

Despite several obv

ious opportunities to do so, the officers never administered the required Miranda warnings, a widely-recognized prerequisite for a custodial interrogati on. Officer McCreight dr ove the vehicle throug hout the course of the search for stolen goods. Officers acknowledged that the defendant was illiterat e and of limited intelligence. There was testimony at the suppression hearing by Officer Burns that Charles Thompson or Billy McNeely, co-defendants in this case, had provided information that had led to the investigation of the defendant. Before their arrival at th e scene, officers were aw are that the defendant "had some of the goods" and "disposed of some of it." Officer Burns conceded that he had the opportunity to obtain a search warrant but explained that the real purpose of the visit was for the federal officers "to q uestion him about another incident ." After the lengthy search for the goods, the officers questioned the defendant at the jail. Even then, the defendant had not been provided with the Miranda warnings.

Furthermore, the officers took a t otal of three vehicles to the defendant's premises. They indi cated a subjective vi ew that the defendant was not under arrest even after he w as handcuffed and placed inside the officer's vehicle. While Officer McCreight denied questi oning the defendant, he acknowle dged that the defendant "told us where w e needed to go." The defendant walked o nly about thirty feet from the police v ehicle into the ravine and was still handcuffed whe n he recovered the garbag e bag with the stolen i tems. He remained in handcuffs when taken to his parents' resi dence. Upon their eventual return to the police stati on, Officer McCreight check ed with other agencies

to determine whether the r eturned10 items had been stolen. One exc hange between the defense attorney and Officer McCreight during the suppression hearing was as follows:

Q. You went from fetching ... the computer goods to his parents' home to an outbuilding where he graciously dug out a rifle for you. Sti ll handcuffed at this time? A. Yes, sir. Q. Still free to go though. A. Yes, sir. Q. Still not under arrest. A. After retrieving g oods from the ravine and the defendant's parents' residence, they returned to the defendant's residence where he led them to a rifle scope, an electric heater, and a st epladder. Even then, Officer McCreight described the defendant as "not under arrest and still free to go." The officer testified that had the defendant demanded the removal of the handcuffs or his outright r elease, he would have done so. Officers arrived at the defendant's residence in mid-morni ng and, although not discer nible from the record, obviously took a cons iderable amount of time to complete thei r travels.

The greater weight of the evidence does not support the conclusions made by the trial court that the statements were admissible because the y were spontaneously made. In our v iew, the officers' subject ive view that th e defendant was not in custody l acked any plausible foundation. Because the defendant was not "free to go," the officers had a duty to advise of the rights guaranteed in the Miranda decision. Despite a lengthy opportunity to have done so, the officers chose to rely upon the defendant to give more and mor e incriminating informatio n. There was at least a limited amount of questi ons as to the whereabouts of the s tolen goods and how to get there. Mor

eover, the circumstances of the detention called for an explanation. The purpose of the v isit to the defendant's residenc e, the number of officers and police vehicle s involved, the li mitation on the defendant's movement,11 the method of transportation, the durat ion and character of his detenti on as the stolen goods were being produced, and the extent to w hich the defendant was confronted with suspicions of guilt are circumstanc es which suggested not only an arrest but also a custodial expedition for incrimina ting evidence.
Although Tennessee appellate courts have not addresse d the issue in depth, the United States Supreme C ourt has held that an interro gation is not limited to formal questioning but may include the functional equiv alent of formal questioning. Rhode Island v. Innis , 446 U.S. 291, 300-01 (1980). This is one of those situations. Interrogation "refers not only to ex press questioning, but also to 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 301. The Supreme Court continued, "A practice that th e police should know is reasonably likely to evoke an i ncriminating response from a suspect thus amounts to interrogation." Id. See also Arizona v. Mauro , 481 U.S. 520 (1987).

In Mauro , the high court commented as foll ows: In deciding whether particular police conduct is interrogation, we mus

t remember the purpose behind our decision[] in Miranda

... : preventing government officials from using the coercive nature of confinement to extract confessions that would not be g iven in an unrestrained environment. 481 U.S. at 529-30. In our ass essment, the "coercive natur e" of the arrest produced the incriminating informati on. The greater weig ht of the evidence established that.

The trial court's analy

sis focused on the voluntary nature of the statements. While the statements may have been voluntary, there w ere not made by the defendant with the full k nowledge of his right

s. Had the officers taken the time to properly advi se the defendant of his rights, the fruits of their interrogat ion would have been admissibl e as evidence. Because of their failure to do so and the12 particular nature of their i nterrogation, the circumstances require suppres sion. Accordingly, the j udgment is reversed, th e evidence suppressed, and th e charges dismissed.

________________________________ Gary R. Wade, Presiding Judge CONCUR:

_____________________________ Thomas T. W oodall, Judge

_____________________________ John Everett Williams, Judge