Filed 7/15/13 P. v. Scott CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for 

publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

MATTHEW REY SCOTT,

 Defendant and Appellant.

2d Crim. No. B244735

(Super. Ct. No. 2012020660)

(Ventura County)

Matthew Rey Scott appeals a judgment following his conviction of 

possession of a controlled substance - methamphetamine (Health & Saf. Code, 

§ 11377), with a finding that he had a prior strike - a 2008 first degree burglary 

conviction. In response to a police officer's question during a parole search, Scott 

admitted that the substance in a bag in his pocket was methamphetamine. Scott moved 

to exclude that statement because he was not given a Miranda warning. (Miranda v. 

Arizona (1966) 384 U.S. 436.) The trial court denied his motion. We conclude the 

court erred. But the error is harmless given the overwhelming evidence supporting the 

judgment. We also conclude that an earlier statement Scott made before any police 

questioning was voluntary and admissible. We affirm.
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FACTS

On June 5, 2012, police officer Timothy Wedemeyer conducted a parole 

search at Scott's residence. He asked Scott to "step outside" so he could conduct a 

search of "his person." Scott complied.

In searching Scott's right pants pocket, Wedemeyer "felt a baggie 

consistent with narcotics." As Wedemeyer started to pull it "out of the pocket," Scott 

said, "Man this is fucked up. Why are you guys here? Now I'm really fucked." 

Wedemeyer asked Scott, "[W]hat's in the bag?" Scott responded, "You 

know what it is. It's meth. Now I'm really fucked." 

In a pretrial motion, Scott moved to exclude all the statements he made 

during the parole search. The trial court denied the motion. 

DISCUSSION

Admissibility of Scott's Initial Statements to the Police

Scott contends the trial court erred by admitting the first statements he 

made during the parole search - "Man this is fucked up. Why are you guys here? Now 

I'm really fucked." (Italics added.) He claims they are inadmissible under Miranda v.

Arizona, supra, 384 U.S. 436 because he did not receive a Miranda warning prior to 

making them.

The People contend these remarks to Officer Wedemeyer were 

admissible because they were voluntary and he made them before any police 

questioning. We agree.

In reviewing claims that the trial court should have excluded or 

suppressed statements "based upon a Miranda violation, '"we accept the trial court's 

resolution of disputed facts and inferences . . . if supported by substantial evidence."'" 

(People v. Bejasa (2012) 205 Cal.App.4th 26, 35.) "'"We independently determine 

from the undisputed facts and the facts properly found by the trial court whether the 

challenged statement was illegally obtained."'" (Ibid.)
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"Defendants who are in custody must be given Miranda warnings before 

police officers may interrogate them." (People v. Huggins (2006) 38 Cal.4th 175, 

198.) Where a custodial interrogation occurs without a Miranda warning, the 

incriminating statements by the defendant in response to police questioning may be 

suppressed or excluded by the trial court. (People v. Bejasa, supra, 205 Cal.App.4th at 

p. 40.) 

But as the Supreme Court stated in Miranda, "Volunteered statements of 

any kind are not barred by the Fifth Amendment and their admissibility is not affected 

by our holding today." (Miranda v. Arizona, supra, 384 U.S. at p. 478.) 

Scott made these remarks before he was questioned by the police. The 

trial court found they were "spontaneous." It rejected Scott's claim that he made them 

involuntarily. It said, "I do not find it to be involuntary under all of the factors I'm 

required to consider. And I don't find it to be a violation of Miranda." These findings 

are supported by the record. "'[T]he special procedural safeguards outlined in Miranda

are required not where a suspect is simply taken into custody, but rather where a 

suspect in custody is subjected to interrogation.'" (People v. Buskirk (2009) 175 

Cal.App.4th 1436, 1449.) Here there was no interrogation before he made these 

remarks. There was no error.

Admissibility of Scott's Answer to the Police Officer's Question

Scott contends the officer's question, "[W]hat's in the bag?" constituted 

an interrogation while he was in custody. Scott answered, "You know what it is. It's

meth. Now I'm really fucked." (Italics added.) He claims his answer should have been 

excluded. 

The People contend his remarks were admissible because Scott was not 

in custody. We disagree. 

Scott's statements were made in response to a police officer's question 

before he received Miranda warnings. He made them during a parole search. "It is 

settled in this state that custodial interrogation appears not only when a person is in 
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fact deprived of his freedom in any significant way, but also when as a reasonable 

person he is led to believe that his freedom of movement has been restricted by the 

pressures of official authority." (People v. Farris (1981) 120 Cal.App.3d 51, 56.) 

Here the trial court made findings that Scott was detained and his 

freedom of movement was restricted. The court said, "[T]here's been an investigative 

detention here. There's no doubt about that. He's detained. He's not free to go. No 

reasonable person in his position is going to think he's free to go." (Italics added.) 

Those findings about Scott being in a custodial environment during the parole search 

are supported by the record. 

Scott was not free to walk away from a parole search. As stated in 

People v. Farris, supra, 120 Cal.App.3d at page 56, a defendant subject to parole 

conditions was "not free to leave while his bedroom was being searched." 

Consequently, he "was obviously deprived of his freedom in a significant way." 

(Ibid.) In People v. Bejasa, supra, 205 Cal.App.4th at page 37, the court said, "A 

reasonable person in defendant's position would know that possession of 

methamphetamine . . . is a parole violation and a crime, and that arrest would likely 

follow." "[T]he fact that [police] advised defendant he was being 'detained for a 

possible parole violation' also weighs in favor of custody." (Ibid.)

The People claim Miranda does not apply because the question 

Wedemeyer asked Scott did not constitute an interrogation. We disagree. Under 

Miranda, an interrogation occurs where "the police should know" their questions are 

"likely to evoke an incriminating response." (Rhode Island v. Innis (1980) 446 U.S. 

291, 301.) This is such a case. Here the police officer had possession of the evidence 

of a crime before he asked Scott the incriminating question while Scott was detained. 

At the pretrial hearing to exclude Scott's statements, Wedemeyer testified that he knew 

Scott was in possession of narcotics before he asked "what's in the bag?" 

Because Wedemeyer knew what the bag contained, he consequently 

knew or should have known his question was likely to evoke an incriminating 
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response. (Rhode Island v. Innis, supra, 446 U.S. at p. 301; People v. Ceccone (1968) 

260 Cal.App.2d 886, 893-894 [in a roadside car search, police officer knew a bag 

contained marijuana, consequently asking the defendant what the bag contained 

without a prior Miranda warning required exclusion of defendant's answer]; see also 

State v. O'Neal (N.J. 2007) 921 A.2d 1079, 1082, 1088 [police who were searching 

defendant after seeing him use a sock in a street drug transaction could not ask him 

"what was in his sock" without first giving a Miranda advisement].) 

In a case similar to this one, the Ninth Circuit in United States v. 

Hernandez (9th Cir. 2007) 476 F.3d 791, 796, said, "Officer Carlas testified that when 

he removed the opaque package from Hernandez's pants pocket he believed it 

contained drugs. When officer Carlas then asked, 'what is this?', not only was this 

direct questioning, but based on officer Carlas's belief that he was holding drugs in his 

hand, he knew or should have known his question could reasonably lead to an 

incriminating response from Hernandez." (Italics added.) 

The question Wedemeyer asked was not necessary to complete a parole 

search or for routine booking information. A truthful answer to the question 

constituted an admission of the crime the police knew he had committed. 

Consequently, Scott should have received a Miranda warning before he gave his 

incriminating response. The trial court should have excluded his answer to the 

question. 

But any error is harmless because even without his admission that the 

bag contained methamphetamine, there is overwhelming evidence of Scott's guilt. 

(Chapman v. California (1967) 386 U.S. 18, 24.) The police found the narcotics on 

his person. It was in the pocket of his pants. Scott volunteered the admissible 

statement, "Now I'm really fucked," which showed his consciousness of guilt. 

Wedemeyer testified he "had a pretty decent opinion it was methamphetamine" as he 

pulled the bag out. He conducted a "NIK" test on the substance in the bag. It "tested 

positive for methamphetamine." Maria Perez, a sheriff's department forensic scientist, 
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testified the tested evidence sample "contained methamphetamine." This evidence was 

uncontradicted. Scott did not testify and he called no witnesses.

The judgment is affirmed. 

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

PERREN, J.
7

Matthew P. Guasco, Judge

Superior Court County of Ventura

______________________________

Pamela J. Voich, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant 

Attorney General, Lance E. Winters, Senior Assistant Attorney General, Victoria B. 

Wilson, Supervising Deputy Attorney General, Erika D. Jackson, Deputy Attorney 

General, for Plaintiff and Respondent.