IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

CARLOS ANDRES MACIEL, Appellant.

No. 1 CA-CR 14-0243

Appeal from the Superior Court in Yuma County

No. S1400CR201300422

The Honorable David M. Haws, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Michael O’Toole

Counsel for Appellee

Yuma County Public Defender’s Office, Yuma

By Edward F. McGee

Counsel for Appellant

OPINION

Judge Kenton D. Jones delivered the opinion of the Court, in which Chief

Judge Michael J. Brown joined. Judge Peter B. Swann dissented.
STATE v. MACIEL

Opinion of the Court

2

J O N E S, Judge:

¶1 Carlos Maciel appeals his conviction and sentence on one 

count of burglary in the third degree. Maciel contends the trial court erred 

in denying his motions: (1) to suppress his statements to police, and (2) for 

judgment of acquittal on the basis that the State failed to establish the corpus

delicti. For reasons set forth below, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 On April 10, 2013, a motorist observed Maciel seated next to 

a vacant building with a broken window. The motorist noticed the board

that previously covered the broken window had been removed and, aware 

of prior break-ins at the building, called the police. An officer was 

dispatched to what was reported as a possible burglary. 

¶3 Upon arrival, and after speaking with the motorist, the officer

contacted Maciel, who was still seated a few feet from the broken window,

obtained his identification, and conducted a pat-down search for weapons. 

Finding no weapons on or outstanding warrants for Maciel, the officer

asked him “what he was doing” and if he knew “how the board got 

removed from the window.” Maciel replied that he was just sitting down

and denied any knowledge of the board being removed from the window. 

The officer asked Maciel to sit in his patrol vehicle until another officer 

arrived at the scene. A second officer arrived within minutes, and Maciel 

was then asked to sit on the curb next to the building while the second

officer stood nearby. Maciel complied with the officer’s requests.

¶4 The pastor of the church on the property adjoining the vacant 

building arrived and advised that the board had been in place over the 

broken window three days earlier. With that additional information, the 

first officer again asked Maciel about the window. Without further 

prompting, Maciel admitted removing the board the day before and 

entering the building to look for money. He stated that another male told 

him to go inside, but Maciel alone had entered the building. Maciel was

then placed under arrest, handcuffed, and placed in the patrol vehicle. 

¶5 Two officers then entered the building to search for evidence 

of a burglary or persons possibly still in the building. Shoe prints inside 

did not match the shoes worn by Maciel at the time of his arrest, and there 

was no other evidence of entry. The pastor was unable to identify anything 

missing or stolen.
STATE v. MACIEL

Opinion of the Court

3

¶6 Then, the first officer went back to the patrol vehicle, advised 

Maciel of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), and 

again asked him about going into the building. Maciel again reported he

removed the board and entered the building. Maciel stated he pulled the 

board off “by hand,” and when he was advised the shoe prints inside did 

not match his shoes, Maciel stated “he hadn’t gone in very far.” The entire 

investigation lasted approximately one hour.

¶7 Following a jury trial, Maciel was convicted of one count of 

burglary in the third degree. The trial court suspended the sentence, placed 

Maciel on intensive probation for thirty-six months, and ordered him to 

serve thirty days in jail as a condition of probation. Maciel timely appealed.

We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections 

12-120.21(A)(1),1 13-4031, and -4033(A)(1).

DISCUSSION

I. Motion to Suppress

¶8 Before trial, Maciel moved to suppress his statements to the 

police, arguing the officer engaged in an improper “two-step” interrogation 

process by deliberately soliciting incriminating statements from him while 

he was in custody but prior to providing Miranda warnings, and then resoliciting those same statements after he was arrested, in violation of

Missouri v. Seibert, 542 U.S. 600, 604 (2004). Following an evidentiary

hearing, the trial court determined Maciel’s statements were voluntary. It 

further found Maciel’s pre-Miranda statements were not obtained during a 

custodial interrogation, but rather resulted from permissible “on-the-scene 

questioning.”

¶9 In doing so, the trial court specifically rejected Maciel’s twostep Miranda violation argument, finding the questioning during the onscene investigation did not constitute a “first Miranda violation,” and there 

was no evidence the officer intended to engage in improper or coercive

tactics. The court reasoned: “The second questioning [at the curb] had come 

after [the officer] knew somewhat more about the circumstances,” had 

“some questions” about the truthfulness of Maciel’s initial statements, and 

was “simply following up.” The court noted favorably that “[a]s soon as 

[Maciel] made statements that gave the officer probable cause for arrest, he 

ceased questioning, and then before he reinitiated questioning, he advised 

 

1 Absent material revisions from the relevant date, we cite a statute’s 

current version.
STATE v. MACIEL

Opinion of the Court

4

[Maciel] of his Miranda rights.” Thus, the court concluded all of Maciel’s 

statements were admissible. 

¶10 Maciel argues on appeal that the trial court’s ruling is 

erroneous, and his statements were both involuntary and obtained in 

violation of Miranda. We review the trial court’s decision to admit 

statements of a defendant for an abuse of discretion. State v. Ellison, 213 

Ariz. 116, 126, ¶ 25 (2006) (citing State v. Jones, 203 Ariz. 1, 5, ¶ 8 (2002)). In 

doing so, we consider only the evidence presented at the suppression 

hearing and view it in the light most favorable to upholding the trial court’s 

ruling. Id. (citing State v. Hyde, 186 Ariz. 252, 265 (1996)). We defer to the

trial court’s factual findings, but review its legal conclusions de novo. State 

v. Box, 205 Ariz. 492, 495, ¶ 7 (App. 2003) (citing State v. Valle, 196 Ariz. 324, 

326, ¶ 6 (App. 2000)).

A. Maciel Was Not in Custody During the Officer’s Initial 

Inquiry or While Waiting at the Curb.

¶11 Before police engage in “custodial interrogation,” or 

“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,” the suspect must be given a Miranda warning. State v. 

Kennedy, 116 Ariz. 566, 568-69 (App. 1977) (citing Miranda, 384 U.S. at 444, 

and State v. Bainch, 109 Ariz. 77, 79 (1973)). While the circumstances of each 

case will determine whether a suspect is in custody for the purpose of 

triggering Miranda warnings, being “in custody” is an objective condition 

with “the ultimate inquiry [being] simply whether there is a ‘formal arrest 

or restraint on freedom of movement’ of the degree associated with a formal 

arrest.” State v. Cruz-Mata, 138 Ariz. 370, 372-73 (1983) (quoting California 

v. Beheler, 463 U.S. 1121, 1125 (1983)); see also Kennedy, 116 Ariz. at 569 (“‘The 

vital point is whether, examining all the circumstances, the defendant was 

deprived of his freedom of action in any significant manner, and the 

defendant was aware of such restraint.’”) (quoting Bainch, 109 Ariz. at 79). 

¶12 When determining whether questioning is actually custodial, 

there is no one factor that controls whether a person is in custody; rather,

we consider objective factors, the most important being: (1) the site of the 

interrogation; (2) whether objective indicia of arrest are present; and (3) the 

length and form of the interrogation. Cruz-Mata, 138 Ariz. at 373

(approving three of four factors identified in Kennedy). In our consideration 

of these factors, we bear in mind the purpose of Miranda warnings: to curtail

involuntary admissions elicited through mental or physical intimidation.
STATE v. MACIEL

Opinion of the Court

5

See Kennedy, 116 Ariz. at 569 (citing State v. Tellez, 6 Ariz. App. 251, 255 

(1967)). 

¶13 Maciel first disputes the trial court’s findings that he was not 

in custody either when he was asked to sit in the patrol vehicle or when he 

was thereafter asked to sit at the curb. However, the transcript of the 

hearing demonstrates the court fully considered the circumstances before 

concluding that Maciel was not in custody prior to his formal arrest. The 

record supports this conclusion.

¶14 At the suppression hearing, the officer testified he was 

initially the only officer on the scene and had no idea whether Maciel was 

involved in any crime or whether there was anyone inside the building. He 

therefore asked Maciel to sit in the patrol vehicle for “both of our safety,”

explaining they both would be in danger if an armed person emerged from 

the building. Maciel was not handcuffed, was not escorted to or placed in 

the patrol vehicle by the officer, and was not under arrest. The officer did 

not question Maciel while he was in the patrol vehicle, but simply

“watch[ed] the building just to see if anyone came out.” Within minutes,

another officer arrived, and the first officer asked Maciel to exit the patrol 

vehicle and sit on the curb next to the building while the other officer stood

nearby.

¶15 In Cruz-Mata, our supreme court affirmed a trial court’s ruling 

that a defendant was not in custody where he agreed to accompany an 

officer to the police station for questioning, was transported in a patrol 

vehicle, and was questioned for approximately ninety minutes before 

confessing. 138 Ariz. at 373. Although a police station could be considered 

a “coercive environment,” the court found no other objective indicia of 

arrest: “Defendant was not subjected to the booking process, nor were 

physical restraints such as handcuffs used, nor was a weapon drawn.” Id. 

The court further noted “no force, threat[] or other compulsion” was used 

to elicit responses. Id. This analysis compels a similar conclusion here. 

¶16 The trial court found the officer’s initial questions to Maciel

were not an interrogation but rather, reasonable “on-the-scene

questioning” to assess the situation. See State v. Morse, 127 Ariz. 25, 28 

(1980) (excluding general, on-the-scene questioning during a criminal 

investigation from the definition of custodial interrogation). The record is 

clear that Maciel was near the broken window when the motorist made his 

report and remained there when the officer arrived. As the only law 

enforcement officer at the scene of an alleged burglary, it was an 

appropriate first step for the officer to ask Maciel what he knew about the 
STATE v. MACIEL

Opinion of the Court

6

removal of the board, just as the officer questioned the pastor as to the issue 

upon his arrival.

¶17 Once the officer observed evidence of a potential illegal entry, 

the building and the surrounding area became the scene of a criminal

investigation over which he was in control. Rather than direct Maciel to 

leave the crime scene or allow him to continue to sit by the open window

when an intruder might still be inside, the officer asked Maciel to sit in the 

patrol vehicle where the officer believed he would be safer. The trial court 

accepted the officer’s testimony, and we defer to its assessment of witness 

credibility, especially where, as here, none of the objective indicia of arrest 

were present. See Pima Cnty. Juv. Action No. 63212-2, 129 Ariz. 371, 375 

(1981) (“The deference which appellate courts accord the trier of fact, 

whether judge or jury, to make determinations based on assessments of the 

credibility of witnesses is elementary.”) (citations omitted). Moreover, the 

record supports the determination that safety was the officer’s concern.

2

Following his direction to Maciel, the officer did not, himself, breach the 

building but simply watched and waited to enter until another officer 

arrived, asking no further questions of Maciel throughout that period. The 

court implicitly found Maciel was not in custody while in the patrol vehicle, 

and the conclusion is supported by the record. See State v. Zamora, 220 Ariz. 

63, 67, ¶ 7 (App. 2009) (noting we will infer findings necessary to affirm the 

trial court as long as there is no conflict with any express findings) (citing 

State v. Ossana, 199 Ariz. 459, 461, ¶ 8 (App. 2001), and Coronado Co. v. 

Jacome’s Dep’t Store, Inc., 129 Ariz. 137, 139 (App. 1981)).

¶18 Turning to the curb-side questioning, the record shows the 

trial court fully considered the cumulative effect of Maciel’s interactions 

with the police before considering whether he was in custody while sitting 

at the curb. The court began its analysis by noting Maciel had been in the 

patrol vehicle for safety reasons and had not been handcuffed, reiterating 

its conclusion that Maciel was not then in custody. After considering anew 

the relevant “indicia of custody,” the court then determined Maciel was 

likewise not in custody while sitting at the curb. Again, Maciel was not 

handcuffed or told he was under arrest, no weapons were drawn, no 

physical force was used, and there was nothing coercive or inherently 

threatening about the curb itself. There is nothing in the record to suggest 

 

2 Contrary to the concerns expressed in the dissent, infra ¶ 44, the 

officer did articulate a potential danger in allowing Maciel to remain seated 

by the uncovered window, noting: “If someone had emerged from the 

broken window and I had to contact them and if they were armed, we might 

have . . . both been in danger in the close proximity to the window.”
STATE v. MACIEL

Opinion of the Court

7

the second officer was directed to treat Maciel as if he were in custody or 

that the second officer believed Maciel to be in custody. Nor can the 

testimony that Maciel “sat by the building with [the second officer],” 

viewed in the light most favorable to upholding the conviction, reasonably 

support the dissent’s statements, infra ¶¶ 36, 44, that the second officer 

“stood guard” or “watched over” Maciel while he sat on the curb. 

Additionally, the “length and form of the interrogation,” consisting of “two 

or three questions” that lasted “a few moments, at most,” did not 

objectively indicate Maciel was in custody. The court thus concluded, 

“[g]iven all of those circumstances . . . the questioning that took place in the 

second part of the interrogation after [Maciel] had been taken out of the 

police car and seated on the curb was not a custodial interrogation.” 

¶19 Again, the record reflects the area remained an active crime 

scene. It was reasonable for the officer to control the movement of any 

persons within the area when he did not and could not have known who or 

what danger may have been inside. Having Maciel remain at the curb with 

an officer who could prevent him from wandering around the crime scene 

provided a degree of safety to everyone. Cf. State v. Johnson, 220 Ariz. 551, 

557 (App. 2009) (noting law enforcement officer “must be able to control the 

scene of a traffic stop to protect the driver, passengers, and the public in 

general”) (citing Arizona v. Johnson, 555 U.S. 323, 333 (2009)). 

¶20 Moreover, the curb-side questioning occurred only after the 

officer was advised by the pastor that the board had been on the window 

three days earlier. It was not improper for the officer, armed with 

additional information, to return to Maciel and attempt to further narrow

the timeframe during which the board may have been removed and the 

crime committed. Maciel then, without further prompting, admitted 

removing the board. With that, the questioning of Maciel ceased and he 

was placed under arrest. In the absence of any testimony or evidence that 

Maciel was improperly compelled to answer the officer’s questions, the trial 

court’s determination that Maciel was not in custody at the time the first 

officer asked him for additional information is supported by the evidence.

3

 

3 Even if the record could be reasonably read to conclude the officer 

“was also encouraging a third party [the pastor] to pursue a speculative 

criminal complaint against the individual who was the focus of his care

[Maciel],” infra ¶ 44, it would be irrelevant to a determination of whether 

an objectively reasonable defendant would have believed he was “in 

custody” at the time of questioning. 
STATE v. MACIEL

Opinion of the Court

8

B. The Officer Did Not Engage in a Two-Step Interrogation 

Process Under Seibert or Elstad.

¶21 The trial court next considered Maciel’s argument that the 

officer engaged in a two-step interrogation process prohibited by Seibert —

the first occurring at the curb, and the second following Maciel’s formal 

arrest. In Seibert, the U.S. Supreme Court examined the propriety of a police 

protocol whereby officers were instructed not to give Miranda warnings 

until their interrogation produced a confession that, although admittedly 

inadmissible, was then used to coerce “the suspect to cover the same 

ground[] a second time” after Miranda warnings were given. 542 U.S. at 

604. A plurality of the Supreme Court held: “The impression that the 

further questioning was a mere continuation of the earlier questions and 

responses” creates a coercive environment, depriving a reasonable person 

of a true sense of choice to remain silent. Id. at 616-17. Therefore, postwarning statements obtained in such a fashion are inadmissible. Id.

¶22 We find no merit in Maciel’s argument. First, having 

concluded there was no “first Miranda violation” because Maciel was not in 

custody during the curb-side questioning, there cannot, by definition, have 

been a second Miranda violation that would implicate the two-step 

interrogation process discussed in Seibert. See supra ¶¶ 18-20.

¶23 Second, even assuming Maciel was in custody during the 

curb-side questioning, no evidence was presented to suggest either the 

police department generally, or the officer individually, engaged in any 

deliberate tactic to withhold Miranda warnings, or that the officer used preMiranda statements to pressure Maciel during the post-Miranda

questioning. To the contrary, the trial court specifically determined “there 

was no malic[e] or intent by the officer trying to subvert Miranda by 

questioning without Miranda and then later going back to questioning with 

Miranda.” This finding is supported by the record. Indeed, it is only with 

the benefit of hindsight — a luxury not available to law enforcement officers 

attempting to conduct a thorough investigation, nor instructive in our 

analysis — that the officer could have known Maciel would volunteer

incriminating statements.

¶24 Finally, because no evidence exists here of the deliberate use 

of a two-step procedure as addressed in Seibert, the proper test is that set 

forth in Oregon v. Elstad, 470 U.S. 298 (1985). Zamora, 220 Ariz. at 70, ¶ 18. 

Under Elstad, the trial court must determine: (1) whether the initial, preMiranda warning statements were coerced, and if so, (2) whether “the taint 

from such coercion has not dissipated through the passing of time or a 
STATE v. MACIEL

Opinion of the Court

9

change in circumstances.” Elstad, 470 U.S. at 314. If the initial statements 

were coerced, and the coercion did not dissipate through the passing of 

time or change in circumstances, all of the statements must be suppressed. 

Id. However, “a suspect who has once responded to unwarned yet 

uncoercive questioning is not thereby disabled from waiving his rights and 

confessing after he has been given the requisite Miranda warnings.” Id. at 

318. Therefore, if uncoerced statements are made pre-Miranda, they are 

nonetheless admissible if voluntarily repeated post-Miranda. Id.

¶25 As noted above, reasonable evidence supports the trial court’s 

finding that Maciel’s statements at the curb were not coerced. See supra 

¶¶ 18-20. After placing Maciel in custody and following additional 

investigation, the officer properly provided Miranda warnings before 

questioning Maciel further. Maciel then voluntarily chose to speak further 

with law enforcement and waived his Miranda rights. We find no error in 

the admission of Maciel’s subsequent statements. 

¶26 Giving due deference to the trial court’s factual findings, we 

find no abuse of discretion in the admission of Maciel’s statements to law 

enforcement. 

II. Denial of Motion for Judgment of Acquittal

¶27 Maciel next argues the trial court erred in denying his motion 

for judgment of acquittal, alleging no corpus delicti or physical evidence 

supports his admission that he removed the board and entered the 

building. He essentially asserts insufficient evidence was presented to 

support his conviction because there is no proof that anything was actually 

missing from the building or that he had an intent to commit a theft. We 

review the denial of a motion for judgment of acquittal based upon the

corpus deliciti doctrine for an abuse of discretion. State v. Jones ex rel. Cnty. 

of Maricopa, 198 Ariz. 18, 23, ¶ 13 (App. 2000) (citing State v. Gerlaugh, 134 

Ariz. 164, 170 (1982), and Adolfson v. United States, 159 F.2d 883, 888 (9th Cir. 

1947)).

¶28 “A defendant may not be convicted of a crime based on an 

uncorroborated confession without independent proof of the corpus delicti, 

or the ‘body of the crime.’”4 State v. Morgan, 204 Ariz. 166, 170, ¶ 15 (App. 

 

4 The State urges us to hold the corpus delicti doctrine is no longer 

viable in Arizona. However, our supreme court still recognizes the 

applicability of the doctrine, see State v. Morris, 215 Ariz. 324, 333, ¶¶ 33-36 
STATE v. MACIEL

Opinion of the Court

10

2002) (citing State v. Gillies, 135 Ariz. 500, 506 (1983), and Jones, 198 Ariz. at 

2, ¶ 12). However, under Arizona’s “corroborative approach,” before

incriminating statements may be considered, the State’s proof need 

establish only a reasonable inference the crime was actually committed. 

Morris, 215 Ariz. at 333, ¶ 34 (citing State v. Hall, 204 Ariz. 442, 453, ¶ 43 

(2003)). Such evidence may be circumstantial, id. (citing Hall, 204 Ariz. at 

453, ¶ 43), and “need not be of the quantum of proof beyond a reasonable 

doubt,” Jones, 198 Ariz. at 22, ¶ 12 (citing Gerlaugh, 134 Ariz. at 170).

¶29 Applying the corroborative approach, the trial court properly

found the State had presented “sufficient corroboration of the admission[s] 

to get past the corpus delicti issue.” In support of its finding, the court 

referenced evidence that Maciel was seen “right next to the window with 

the board taken off.” Additionally, there were shoe prints inside, providing 

evidence that entry was made into the building. Although the shoe prints 

did not match the shoes Maciel was wearing when he was arrested, the 

court noted Maciel had stated he went in the day before, when he could 

have been wearing different shoes. Additional circumstantial evidence also 

creates a reasonable inference a burglary was committed around the time 

Maciel was observed near the un-boarded window, including: (1) 

testimony that the pastor had seen the board in place on the window when 

he was at the church three days prior, indicating the board was only 

recently removed; (2) physical evidence that the board had been nailed over

the window and required active efforts to physically detach; (3) testimony 

that the building was used primarily for storage purposes and access 

through the window led to the basement storage area; and (4) evidence that

the maintenance man who walked the property twice a week had not 

reported seeing anything “out of place” before the incident.

¶30 The State’s evidence, while circumstantial, provided a 

reasonable inference a burglary had occurred and corroborated Maciel’s 

voluntary statements. Therefore, we find no abuse of discretion in the trial 

court’s denial of Maciel’s motion for judgment of acquittal.

CONCLUSION

¶31 For the foregoing reasons, we affirm Maciel’s conviction and 

sentence.

 

(2007), and we have no authority to overrule its direction, State v. Foster, 199 

Ariz. 39, 41 n.1, ¶ 9 (App. 2000) (citing Myers v. Reeb, 190 Ariz. 341, 342 (App. 

1997)).
STATE v. MACIEL

Swann, J., Dissenting

11

S W A N N, Judge, dissenting:

¶32 I respectfully dissent. The officers in this case subjected 

Maciel to custodial interrogation and did not issue Miranda warnings until 

after he had made incriminating statements. The statements should have 

been suppressed, and the conviction should be reversed and remanded.

FACTUAL BACKGROUND

¶33 At the suppression hearing, Officer Huntley testified that 

once he arrived at the scene, he noticed Maciel sitting on the ground outside 

the church with a shopping cart containing personal items. Huntley 

contacted Maciel and asked him what he was doing. Maciel replied that he 

was just sitting next to the building. Huntley then asked Maciel about the 

window and Maciel stated that it was already damaged when he arrived at

the church. Maciel was homeless, and as a part of his initial investigation,

Huntley asked him questions about the shopping cart containing his 

personal possessions. To this point, I agree that there had been no custodial 

interrogation -- the Supreme Court has “explicitly excluded general on-thescene questioning for the purpose of investigating crime from its definition 

of ‘custodial interrogation.’” Morse, 127 Ariz. at 28.

¶34 Huntley then asked for Maciel’s identification and ran a 

warrants check, which came back clear, and then, with Maciel’s consent,

conducted a pat-down search, which produced no weapons or other 

evidence of contraband. Huntley stated that he then had Maciel sit in the 

backseat of his patrol vehicle “[b]ecause [he] didn’t know if [Maciel] was 

involved at that point in a crime and [he] didn’t know if there was anyone 

inside the building.”

¶35 Whether one believes Huntley’s testimony or not, the act of 

placing an individual (especially one whose identification and warrant 

status raised no suspicions) in the back of a police car is inherently 

inconsistent with the reasonable freedom of movement that citizens 

normally have a right to expect.5 I think it fair to say that most people who 

 

5 I find Cruz-Mata distinguishable in this regard. In that case, the 

defendant affirmatively accepted an invitation to travel to a police station 

with an officer in the front seat of a police car. 138 Ariz. at 373. Here, Maciel 

was placed in the back of a police car. The only “agreement” to enter the 

back of the car in this record was Maciel’s failure to object. The purpose of 

Maciel’s presence in the police car was not mere transportation as in CruzMata -- it was confinement.
STATE v. MACIEL

Swann, J., Dissenting

12

walk by, sit or stand near a building missing a board over its window do 

not reasonably expect to be confined in a police vehicle merely because the 

police “do not know” if they have been involved in a crime. And I daresay 

that many citizens routinely find themselves in the proximity of buildings 

with missing windows, yet they would reasonably believe themselves to be 

in custody if this simple fact landed them in the back of a police car.

¶36 When Ofc. Franklin arrived on the scene, Huntley “asked Mr. 

Maciel to exit the patrol vehicle and sit down on the curb next to the 

building” with Franklin watching over him. Ofc. Sanchez then arrived and 

she and Huntley conducted an initial search of the building while Franklin 

stood guard over Maciel. Though no longer within the confines of a police 

cruiser, Maciel was forced to wait for approximately an hour, under guard, 

while the police conducted an investigation that did not reasonably concern 

him. This too was inconsistent with an individual’s reasonable freedom of 

movement.

¶37 In these circumstances, I cannot agree with the majority that 

Maciel was not “deprived of his freedom of action in any significant way.”

Kennedy, 116 Ariz. at 569. When law enforcement officers place an 

individual in a police vehicle, then ask him to remain in a specific location 

while they stand guard, any remaining “freedom of action” is a pure legal 

fiction. Though there had not been a formal arrest at this point, neither was 

Maciel free to leave. He was, by any reasonable measure, in custody while 

the officers sought grounds to arrest him.

¶38 The pastor of the church then arrived and told Huntley that 

the window had been boarded up a few days earlier. Huntley asked the 

pastor if he would be willing to pursue a complaint against Maciel if 

Huntley found out that Maciel was the individual who had removed the 

board from the window. Huntley stated that he asked this question because 

if the pastor was not willing to be the victim of a crime, there was “really 

not any reason to detain or to do any further investigation.” 

¶39 Huntley then questioned Maciel again about the window and 

Maciel replied that “he pulled [the board] off because he went in to find 

some money.” Huntley placed Maciel under arrest, handcuffed him, and 

placed him in the back of his patrol car for the second time. Huntley cleared 

the building and looked for shoe impressions. When Huntley went back to 

his vehicle to speak with Maciel, he advised Maciel of his Miranda rights 

and continued to question him. Maciel admitted for the second time that 

he had pulled the board off the window and entered the building. 
STATE v. MACIEL

Swann, J., Dissenting

13

ANALYSIS

¶40 The court denied Maciel’s motion to suppress, citing three 

factors. The first factor was the site of the interrogation, which the court 

did not find was indicative of custody because the questioning took place 

at the church, and although Maciel was placed in a police car for a time, he 

was later “allowed to sit on the curb.” The second factor was whether other 

objective indicia of arrest were present. The court found that Maciel was 

not handcuffed and was not told he was under arrest, and that therefore 

objective indicia of arrest were not present. And third, the court found the 

length and form of interrogation to be brief -- despite the fact that Maciel 

was detained for at least an hour. The court also stated that because 

Huntley testified that he did not believe Maciel was in custody when he requestioned him, “the questioning that took place in the second part of the 

interrogation . . . was not a custodial interrogation.”

¶41 “Whether a defendant is in custody such that Miranda

warnings are required to be given is determined by an objective test of 

whether a reasonable person would feel deprived of his freedom in a 

significant way.” State v. Perea, 142 Ariz. 352, 354 (1984). “[T]he initial step 

is to ascertain whether, in light of ‘the objective circumstances of the 

interrogation,’ a ‘reasonable person [would] have felt he or she was not at 

liberty to terminate the interrogation and leave.’” Howes v. Fields, 132 S. Ct. 

1181, 1189 (2012) (citations omitted). To determine how a suspect would 

have gauged his freedom to leave, “courts must examine ‘all of the 

circumstances surrounding the interrogation.’ Relevant factors include the 

location of the questioning, its duration, statements made during the 

interview, the presence or absence of physical restraints during the 

questioning, and the release of the interviewee at the end of the 

questioning.” Id. (citations omitted) (emphasis added). In its analysis of 

Maciel’s motion to suppress, the trial court and the majority examine three 

of these “relevant factors,” but they give inadequate weight to the totality 

of the circumstances. 

¶42 “[A]s the Arizona Supreme Court has recognized . . . when 

the on-the-scene questioning becomes accusatory in nature and when a 

reasonable man would feel he was deprived of his freedom of action in a 

significant way . . . Miranda warnings must be given.” State v. Starr, 119 

Ariz. 472, 475 (App. 1978). And “[i]n assessing whether a detention is too 

long in duration to be justified as an investigative stop, we consider it 

appropriate to examine whether the police diligently pursued a means of 

investigation that was likely to confirm or dispel their suspicions quickly, during 
STATE v. MACIEL

Swann, J., Dissenting

14

which time it was necessary to detain the defendant.” United States v. 

Sharpe, 470 U.S. 675, 686 (1985) (emphasis added).

¶43 Here, Huntley initially detained Maciel and questioned him 

regarding his identity, searched him for weapons, and asked him if he was 

involved in removing the board from the window. This initial investigation 

produced no evidence that Maciel was involved in a crime and there was 

no basis upon which to further detain him. At this point, Huntley’s

detention of Maciel should have ended.

¶44 But the majority reasons:

Once the officer observed evidence of a potential illegal entry, 

the building and the surrounding area became the scene of a 

criminal investigation over which he was in control. Rather 

than direct Maciel to leave the crime scene or allow him to 

continue to sit by the open window when an intruder might 

still be inside, the officer asked Maciel to sit in the patrol 

vehicle where the officer believed he would be safer. 

I respectfully disagree with this analysis. If every building that might have 

experienced a broken window days earlier constituted a crime scene of 

which the police are “in control,” then large areas of many communities in 

this state would perpetually be crime scenes under police control, and any 

passersby would automatically be subject to uncontrolled restraints on their 

freedom. The majority cites no authority for this sweeping proposition, and 

I cannot endorse it. The majority also apparently accepts Huntley’s 

suggestion that he placed Maciel in the police cruiser for his safety. With 

due deference to the trial court’s fact-finding role, there was simply no 

articulable danger to Maciel in these circumstances. The fact that an empty 

building may have had its window covering removed in the preceding 72 

hours presented no clear and present threat to Maciel’s safety. And while 

such acute vigilance in protecting citizens’ safety from even inarticulable 

threats might be laudable in the abstract, that protective motive was 

tempered by the fact that Huntley was also encouraging a third party to 

pursue a speculative criminal complaint against the individual who was the 

focus of his care. Notably, the only other civilian at the scene, the pastor, 

was not asked to sit on the curb for “safety purposes” while another officer 

watched over him -- he was free to leave and did so.

¶45 In truth, police were not “diligently pursuing a 

means of investigation likely to confirm or dispel their suspicions quickly.” 

This detention had far exceeded the time and scope of a general on-the-
STATE v. MACIEL

Swann, J., Dissenting

15

scene investigation and moved into a custodial interrogation when Huntley 

initiated his second round of questioning. See Zamora, 220 Ariz. 63, 68, ¶ 10

(App. 2009) (defining 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”

(citation omitted)).

¶46 A suspect’s right not to incriminate himself does not come 

into existence only after he has expressed a desire not to have that right 

violated. “[U]nless other fully effective means are devised to inform 

accused persons of their right of silence and to assure a continuous 

opportunity to exercise it, the following measures are required. Prior to any 

questioning, the person 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.” Miranda, 384 U.S. at 444 (emphasis added). Nowhere in 

Miranda did the court hold that a suspect must object to his detention before 

these warnings must be given or that a suspect must express a desire to 

leave before he is considered to be in custody. Though a suspect’s reaction 

to restraints on his liberty is a factor that may be relevant in a totality-ofthe-circumstances analysis, it was hardly the most important factor in these 

circumstances. Miranda imposes on the police an obligation to provide 

warnings proactively -- the rule simply does not work if the suspect has any 

obligation to demand those warnings.

¶47 The totality of the circumstances make clear that a reasonable 

person would not have felt free to terminate the encounter with Huntley. 

Maciel, a homeless man, was detained by multiple officers with all of his 

possessions for at least an hour while multiple police officers arrived on the 

scene and asked him the same questions multiple times. For part of this 

time, he was placed in the back of a police car -- an environment from which

no reasonable person would feel free simply to get out and leave. Then, a

police officer was assigned to watch him while he sat on a curb, further 

enforcing the reasonable perception that he was not free to leave. During 

the second interrogation, Maciel was concededly in custody but was not 

given Miranda warnings until he had already made inculpatory statements. 

His statements should have been suppressed.

¶48 In Seibert, the court held that “the midstream recitation of 

[Miranda] warnings after interrogation and unwarned confession could not 

effectively comply with Miranda’s constitutional requirement,” and 

therefore, “a statement repeated after a warning in such circumstances is 

inadmissible.” 542 U.S. at 604. The court held that “unless the warnings 
STATE v. MACIEL

Swann, J., Dissenting

16

could place a suspect who has just been interrogated in a position to make 

[ ] an informed choice [to stop talking], there is no practical justification for 

accepting the formal warnings as compliance with Miranda, or for treating 

the second stage of interrogation as distinct from the first, unwarned and 

inadmissible segment.” Id. at 612. The court further reasoned that, “[u]pon 

hearing warnings only in the aftermath of interrogation and just after 

making a confession, a suspect would hardly think he had a genuine right 

to remain silent, let alone persist in so believing once the police began to 

lead him over the same ground again. A more likely reaction on a suspect’s 

part would be perplexity about the reason for discussing rights at that 

point, bewilderment being an unpromising frame of mind for 

knowledgeable decision.” Id. at 613 (footnote omitted). 

¶49 Under Seibert, the third interrogation (post-Miranda) could 

not sanitize the inculpatory statements that Maciel had already made, and 

all of the inculpatory statements should therefore have been suppressed.

¶50 For these reasons, I respectfully dissent.