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THE COURT OF APPEALS OF THE STATE OF ALASKA
ROCHETTE MOSS, )
) Court of Appeals No. A-3146
Appellant, ) Trial Court No. 3AN-S88-8072CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
) [No. 1189 - December 27, 1991]
Appellee. )
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Mark C. Rowland, Judge.
Appearances: Linda Wilson, Assistant Public
Defender, and John B. Salemi, Public
Defender, Anchorage, for Appellant. Nancy R.
Simel, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage,
and Charles E. Cole, Attorney General,
Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats, Judge,
and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
COATS, Judge.
BRYNER, Chief Judge, dissenting.
Rochette Moss was convicted, based upon his plea of no
contest, of misconduct involving a controlled substance in the
third degree, a class B felony. AS 11.71.030. In entering his
plea, Moss reserved his right to appeal Judge Rowland's denial of
his motion to suppress his statements which Moss claimed the
police obtained in violation of Miranda v. Arizona, 384 U.S. 436
(1966). We agree with Moss and reverse his conviction.
On November 9, 1988, Sergeant James Grimes of the
Alaska State Troopers obtained a search warrant which authorized
him to search a trailer home which was Moss' residence. The
police served the warrant the evening of November 9, 1988, at
approximately 6:00 p.m. Approximately ten police officers, who
were dressed in police marked raid gear, served the warrant. The
police followed their usual procedure for executing warrants in
drug cases, entering the residence with drawn weapons. The
police found four people present in the trailer, including Moss
and his wife. The police first searched a couch in the living
room. The police then ordered Moss and the other occupants of
the residence to sit on the couch. Sergeant Grimes explained at
the suppression hearing that the police searched the couch to
make sure there were no weapons or evidence in that area and then
placed the occupants on the couch so that they could not obtain
weapons or destroy or hide any evidence. Sergeant Grimes had a
uniformed police officer stationed inside the residence at the
front door. Sergeant Grimes explained that this officer's job was
to watch the people who were sitting on the couch and make sure
that they did not obtain any weapons or destroy any evidence.
Sergeant Grimes stated that he believed that this officer would
have stopped anyone trying to leave the residence and would have
asked Sergeant Grimes if that person could leave the residence.
Grimes stated that he would have given anyone permission to
leave, but apparently never expressed this. Sergeant Grimes
stated that he allowed the officer who was guarding the door to
leave after approximately twenty to thirty minutes when the
officer was no longer needed to secure the area.
After the police secured the residence and had the
residents placed on the couch, Sergeant Grimes told them that
they were not under arrest, that the police were going to search
the residence "and then we will be out of your hair and gone."
At this point Grimes and Moss went into the back bedroom and
closed the door. Grimes explained that he was a sergeant with
the state troopers involved in narcotics enforcement. Grimes
asked Moss questions about several people the police had
intercepted at the airport who were involved in selling cocaine
as part of a large organization. According to Grimes, police had
information that these people were connected with Moss. Moss
told Grimes that there was nothing for the police to find in the
residence. Grimes explained that he had a court order, that he
was going to search, and "then we will be on our way." Moss then
explained that the police might find a plate which had some
cocaine on it where a friend had consumed some cocaine. It is
unclear whether the troopers had already located this cocaine
before Moss made this statement, but the troopers apparently
located a small amount of cocaine on a plate at this time.
Grimes then asked Moss about a piece of paper which appeared to
have notations of drug transactions on it. Moss originally tried
to tell Grimes that the piece of paper was homework from a
college course he was taking, but ultimately confessed to Grimes
that the numbers represented drug transactions. According to
Grimes, he questioned Moss for about fifteen to twenty minutes
during this initial exchange. Grimes and Moss returned to the
living room and Moss sat down again. A short time later, the
police found more cocaine in a tool box. Following this
discovery, Grimes again interviewed Moss in the back bedroom.
Moss again made admissions admitting possession of this cocaine.
Grimes then separately interviewed the other residents of the
trailer.1 Following these interviews, Moss asked to talk to
Grimes again. Moss wanted to know what the other residents had
told Grimes. Moss asked Grimes if he was going to be arrested
that evening. Grimes assured Moss that he was not going to be
arrested. The police ultimately left the residence without
placing anyone under arrest. Grimes estimated that the police
started the search at 6:00 p.m. and left the residence at about
8:30 p.m.
The state first contends that the issue which Moss
seeks to raise is not a dispositive issue. In Oveson v.
Anchorage, 574 P.2d 801, 803 n.4 (Alaska 1978), the supreme court
held that the appellate courts of this state would not allow
defendants to enter no contest pleas and reserve appellate issues
unless the record clearly showed that the appellate court's
resolution of the issue which the defendant reserved for appeal
would be dispositive of the entire case and that the parties had
so stipulated with trial court approval. However, in the trial
court, the state agreed that this issue was dispositive of the
case. At the change of plea hearing, the state represented that
the police found two ounces of cocaine in Moss' home. The state
represented that the police did not find any cocaine in Moss'
bedroom and implied that except for the fact that the police
found cocaine in Moss' home, there was little evidence which
would otherwise show Moss' possession of the cocaine. The state
specifically represented that it was necessary for the state to
introduce Moss' admissions to prove its case. On appeal the
state argues that it had sufficient evidence to prove its case
without Moss' statements. The state therefore argues that the
issue which Moss raises is not dispositive. The state points out
that the police found cocaine on a plate which was in plain view
in Moss' residence and in a plastic bag in Moss' tool box. In
addition, the police found scales and a piece of paper with
numbers on it which appeared to represent cocaine transactions in
the trailer. However, given the number of people in Moss'
residence at the time the police arrived, the state's case
against Moss appears problematical without his statements. We
accordingly conclude that we should hold the state to its
original representation that the issue concerning Moss'
statements is dispositive.
Moss contended in the trial court and contends on
appeal that he was in custody during the time the police searched
his residence. Moss contends that since he was in custody, the
police needed to warn him of his Miranda rights before they could
question him. It is undisputed that the police never warned Moss
of his Miranda rights. The only question which this case
presents is whether Moss was in police custody so that the police
were required to warn Moss of his Miranda rights before
questioning him.
In Miranda, 384 U.S. at 436, the Supreme Court required
the police to advise a person of his fifth and sixth amendment
rights before engaging in "custodial interrogation." The court
stated:
By custodial interrogation, we mean
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.
Id. (footnote omitted).
The Supreme Court of Alaska explained the concept of
custodial interrogation in Hunter v. State, 590 P.2d 888, 895
(Alaska 1979). The court stated:
We agree that the objective, reasonable
person perspective is the proper standard for
determining custody. The custody determin-
ation must be made on a case-by-case basis,
but the inquiry, as expressed by the court in
United States v. Hall, 421 F.2d at 545, is
whether:
in the absence of actual arrest
something . . . [is] said or done
by the authorities, either in their
manner of approach or in the tone
or extent of their questioning,
which indicates [to the defendant]
that they would not have heeded a
request to depart or to allow the
suspect to do so.
This requires some actual indication of
custody, such that a reasonable person would
feel he was not free to leave and break off
police questioning.
At least three groups of facts would be
relevant to this determination. The first
are those facts intrinsic to the
interrogation: when and where it occurred,
how long it lasted, how many police were
present, what the officers and the defendant
said and did, the presence of actual physical
restraint on the defendant or things
equivalent to actual restraint such as drawn
weapons or a guard stationed at the door, and
whether the defendant was being questioned as
a suspect or as a witness. Facts pertaining
to events before the interrogation are also
relevant, especially how the defendant got to
the place of questioning--whether he came
completely on his own, in response to a
police request, or escorted by police
officers. Finally, what happened after the
interrogation--whether the defendant left
freely, was detained or arrested--may assist
the court in determining whether the
defendant, as a reasonable person, would have
felt free to break off the questioning.
Id. (footnotes omitted).
Superior Court Judge Mark C. Rowland, who conducted the
evidentiary hearing and made the ruling in this case, applied the
Hunter standard. He emphasized the fact that the police told
Moss that he was not under arrest and concluded that Moss was not
in custody at the time that he made the admissions to the police.
Although we believe that this is a close case, we reach the
opposite conclusion.
We believe that the amount of force which the police
used to enter the residence and maintain control of the residence
is a factor which supports a finding that a reasonable person in
Moss' position would have felt that he was in police custody. We
certainly do not fault the police for using necessary force to
safely serve a search warrant and maintain control over a place
while it is being searched. However, where the police use this
type of force, even though it is necessary and justifiable, the
force tends to establish custody. In Lowry v. State, we stated:
Yet, especially when force is used or a
display of weapons is made, a person who has
been stopped and placed in the effective
custody--albeit temporary--of the police may
find little consolation in being advised that
a formal arrest has not been made. The
person so detained will certainly understand
that he has been placed in custody, but he
may not understand the temporary nature of
the seizure unless it is explained. And if,
as is likely, the person does not understand
the technical distinction between an
investigative stop and a formal arrest, a
mere statement that he has not been arrested
may not suffice to inform him of the
temporary nature of the detention; he may not
realize that he will be free to leave as soon
as the police have completed the brief, on-
the-scene investigation that constitutes a
stop.
707 P.2d 280, 283-84 (Alaska App. 1985).
The fact that the police use force when they initially
encounter a person, although an indication of custody, is not
dispositive. In Lowry we upheld the decision of a trial court
judge who concluded that Lowry was not in custody in spite of
the fact that the police displayed weapons when they initially
encountered him. Id. at 283. However, in that case we placed
particular emphasis on the fact that, prior to the time when the
police stopped Lowry, the police had contacted him by telephone
and he had stated that he would willingly talk to the police.
Lowry volunteered to drive from his home to meet with police
investigators. Id. at 284. In addition, following the stop at
gunpoint, the police put away their weapons after they found out
Lowry was not armed, told him he was not under arrest, and asked
him if he would be willing to accompany the police to the police
station for questioning. Lowry was never handcuffed or otherwise
physically restrained. Id. at 282.
A major factor which tends to establish that Moss was
not in police custody during the search is the fact that Sergeant
Grimes told Moss that he was not under arrest and told Moss that
he was going to search Moss' residence and then leave. However,
the Miranda decision does not merely cover situations when a
person is in custody because he is arrested, it also applies
to a situation when a person is deprived of "his freedom by the
authorities in any significant way." 384 U.S. at 478. In
Berkemer v. McCarty, 468 U.S. 420, 436 (1984), the Supreme Court
acknowledged that a traffic stop significantly curtailed a
person's freedom. However, in deciding this issue, the Supreme
Court emphasized the fact that a motorist who is subject to a
traffic stop realizes that he will only be stopped for a short
period of time, issued a citation, and allowed to leave.
In United States v. Musgrave, 726 F. Supp. 1027
(W.D.N.C. 1989), the court held that the police were required to
give Miranda warnings when they detained Musgrave while they were
serving a search warrant. In Musgrave, the police told Musgrave
that he was not under arrest. Musgrave testified that he
understood that he was not going to be arrested during the
search. Id. at 1031. Apparently the police did not display any
weapons, although they were armed while they conducted the
search. Id. at 1029-30. During the search the police questioned
Musgrave for thirty to forty-five minutes. Id. at 1030. In
deciding the case, the court pointed out that the fact that the
police questioned Musgrave in his home tended to reduce the
coercive impact of the questioning. Id. at 1032. However, the
court concluded that the length of the questioning tended to show
custody. In deciding that Musgrave was in custody, the Musgrave
court distinguished that case from an ordinary traffic stop:
The questioning in this case is also
distinguishable from an ordinary traffic
stop. A traffic stop occurs in public, and
the exposure to public view reduces the
ability of an unscrupulous policeman from
using illegit-imate means to elicit self-
incriminating statements. The motorist is
not likely to fear he will be subjected to
abuse if he does not cooperate. Moreover,
the motorist realizes that he will be given a
citation and be permitted to proceed on his
way after several minutes. Berkemer, 468
U.S. at 438-39, 104 S.Ct. at 3149-50.
The questioning of Defendant in this
case did not occur in public. Instead,
Defendant was placed in a closed room with
three officers. Although he realized he
would not be placed under arrest, it cannot
be said that Defendant knew he would be free
to leave after several minutes. In fact,
Defendant's freedom of movement was
significantly restrained for over an hour.
Id. at 1033.
Although we concede that the issue is close, we
conclude that Moss was in custody during the police questioning
and that the police were required to give him Miranda warnings.
In making this determination, we emphasize the fact that the
police entered Moss' residence at gunpoint and controlled his
movements and the other residents at least at the beginning of
the search. The tape recording which the police took during the
service of the search warrant shows that Sergeant Grimes
questioned Moss extensively. Although Sergeant Grimes did tell
Moss that he was not under arrest and that the police would
search the residence and then leave, we still believe that the
record shows that Moss was deprived of his freedom of action in a
significant way. Moss was in custody much more than he would
have been in an ordinary traffic stop. Once the police found the
plate with cocaine, it does not seem reasonable to conclude that
Moss knew that he was not under arrest and was free to go.2 The
search and questioning took a significant period of time --
Sergeant Grimes estimated approximately two and one-half hours.
Under these circumstances, we conclude that Moss was in police
custody. The police were required to give Moss Miranda warnings
or clarify that Moss was not in custody in order to question him.
We accordingly reverse the decision of the superior court.
REVERSED and REMANDED.
BRYNER, Chief Judge, dissenting.
Making no allowance for the trial court's broad
discretion in factual matters and mistakenly construing the
record in the light most favorable to Moss, the majority of the
court substitutes its judgment for Judge Rowland's, concluding
that Moss was in custody when questioned, even though Moss was in
his own home, all weapons initially displayed by the police had
been put away, and Moss had been expressly told that he was not
under arrest, that the sole purpose of the police presence was to
perform a search of the premises pursuant to a warrant, and that
the police would depart as soon as the search was completed.
Viewing the evidence in the light most favorable to the
prevailing party below, see Hubert v. State, 638 P.2d 677, 683
(Alaska App. 1981), I would conclude that Judge Rowland was not
clearly erroneous in determining that Moss was questioned in a
noncustodial setting. Lowry v. State, 707 P.2d 280, 284 (Alaska
App. 1985); Hubert v. State, 638 P.2d at 687-88.
Accordingly, I dissent.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1. Grimes testified that he interviewed Tina Moss in
the back bedroom. Tina Moss refused to answer any questions.
Following this short interview Grimes told Tina Moss that she was
free to leave. Apparently Tina Moss then left the trailer and
walked around outside the trailer. Grimes testified that as far
as he knew, no one was with Tina Moss when she was walking around
outside.
2. Among other things, the record shows that Sergeant
Grimes and Moss discussed the fact that Moss was on probation for
a drug offense and was facing revocation of his probation.
