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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| THOMAS E. KLEMZ, | ) |
| ) Court of Appeals No. A-9553 | |
| Appellant, | ) Trial Court No. 3KN-05-776 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2126 November 30, 2007 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Kenai, Charles T. Huguelet,
Judge.
Appearances: Renee McFarland, Assistant
Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant.
Nancy R. Simel, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Talis J. Colberg, Attorney
General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Thomas E. Klemz, who was on felony probation for
driving under the influence, arrived for a meeting with his Kenai
probation officer, Ruben Foster. While Klemz was sitting in the
lobby of the probation office, another probation officer (Steven
Meyer) walked by and noticed that Klemz smelled of alcoholic
beverages. One of Klemzs conditions of probation prohibited him
from drinking alcoholic beverages, so Meyer reported his
discovery to Foster, and Klemz was brought to Fosters office.
At Fosters request, Klemz submitted to a breath test,
and the result of this test showed that Klemz had a blood alcohol
level of .221 percent. (The legal limit for driving in Alaska is
.08 percent.)1 Foster then arrested Klemz for violating the
conditions of his probation. Foster searched Klemz and then
handcuffed him in preparation for transporting him to the
Wildwood Correctional Center but Foster did not advise Klemz of
his Miranda rights.
As Foster and Meyer escorted Klemz down the hall,
Foster asked Klemz how he had gotten to the probation office.
Klemz responded that he had driven there in his truck. Meyer
then asked Klemz if he meant that he had driven himself, or that
somebody else had driven him. Klemz answered that he had driven
himself, and that his truck was parked right outside in the
parking lot.
Because Klemzs statement was tantamount to a confession
that he had committed a new felony (felony driving under the
influence), Foster took Klemz back to his office and called the
Kenai police.
Kenai Police Officer Casey Hershberger arrived at the
probation office between five and fifteen minutes later. Foster
informed Hershberger that Klemz had a blood alcohol level of .221
percent, and that Klemz had driven to his appointment at the
probation office. Hershberger escorted Klemz back outside and
told him, You obviously drove over here, and youve obviously ...
[, so] I gotta ask you a couple of questions. The officer then
read the Miranda warnings to Klemz in a rapid monotone and Klemz
waived his rights.
Klemz asked Hershberger if he could put his sunglasses
in his truck. Hershberger told Klemz that he could, and then the
officer said to Klemz: Obviously, youve been driving the
vehicle, and obviously youve had a little bit of alcohol.
Hershberger then asked Klemz how long ago he had driven his
truck, and whether he had driven alone. In responding to these
questions, Klemz again admitted that he had driven his truck.
After administering field sobriety tests to Klemz, Hershberger
arrested him for felony driving under the influence.
Klemzs self-incriminating statements to Foster and
Hershberger were the States only direct evidence that Klemz drove
to his appointment at the probation office. In fact, Klemz and
the State agreed to litigate the new DUI charge at a bench trial
on stipulated facts and Klemzs statements to the probation
officer and the police officer were the only evidence offered by
the State on the issue of whether Klemz drove the motor vehicle.
Before that trial, Klemzs attorney asked the superior
court to suppress these statements. The defense attorney argued
that Klemzs initial statement to Foster and Klemzs later
statement to the police officer were both the fruit of Fosters
interrogation a custodial interrogation that had not been
preceded by Miranda warnings.
At the ensuing hearing on Klemzs suppression motion,
Foster testified that his main purpose in asking Klemz how he had
come to the probation office was to find out if Klemz had a
friend or family member waiting for him someone who should now
be notified that Klemz had been arrested and was being taken to
jail. The other probation officer who was present when Klemz was
arrested, Steven Meyer, testified that Fosters question was
totally routine and was asked as a courtesy. Foster conceded,
however, that he had an additional reason for asking his
question: a desire to find out if Klemz had violated any other
conditions of probation in particular, the condition that
prohibited Klemz from committing any new crimes.
Superior Court Judge Charles T. Huguelet ruled that,
even though Klemz was in custody when Foster questioned him,
Foster did not need to administer Miranda warnings to Klemz, nor
did Foster need to obtain Klemzs waiver of rights, before asking
Klemz whether he had driven himself to the probation office.
Judge Huguelet concluded that Miranda was inapplicable in this
situation because Fosters question (i.e., his inquiry as to how
Klemz had gotten to the probation office) was a routine courtesy
a question aimed at discovering whether a family member or friend
might be waiting in the lobby or outside the building for Klemz
to be done with his appointment (i.e., a person who should now be
alerted that Klemz was under arrest and was being taken to jail).
Judge Huguelet acknowledged that, according to the
testimony presented at the evidentiary hearing, Foster had a
second purpose in asking his question the desire to know if Mr.
Klemz had violated the law and [the] conditions of his probation
by driving. However, the judge concluded that [t]he fact that
Mr. Foster may have had a secondary reason ... for asking how Mr.
Klemz got to the probation office does not convert [Fosters]
question into an interrogation for Miranda purposes.
We disagree with the superior courts ruling on this
issue. After Foster took Klemz into custody for violating his
probation (by drinking alcoholic beverages), Foster then asked
Klemz a question which, given the circumstances, was reasonably
likely to elicit a self-incriminating statement from Klemz.
Fosters question therefore constituted interrogation for Miranda
purposes, as defined in Rhode Island v. Innis, 446 U.S. 291, 300-
01; 100 S. Ct. 1682, 1689-1690; 64 L. Ed. 2d 297 (1980).
Indeed, Foster admitted (during his testimony) that one
of his conscious purposes for asking this question was to elicit
information as to whether Klemz had committed a new crime. The
fact that Foster may also have had a plausible administrative
purpose for asking his question does not negate the Miranda
violation if Fosters question constituted interrogation as
defined in Innis, and if this interrogation occurred before Klemz
was apprised of, and waived, his rights under Miranda.
In other words, a question is not exempt from the Innis
definition of interrogation merely because the law enforcement
officer who asked the question may have had an administrative
purpose for doing so. Even a purely administrative question may
constitute custodial interrogation if, under the circumstances, a
reasonable person would know that the question was likely to
elicit an incriminating response. See State v. Rossignol, 627
A.2d 524, 526 (Me. 1993) (collecting federal cases on this
point).
In Rossignol, a police officer asked a drunk driving
suspect about her possession or ownership of a vehicle found in
the middle of the road. The Maine Supreme Court held that the
officers inquiry did not fall within the administrative question
exception to Miranda because the officers question was
reasonably likely to elicit a response [that would be] material
to the proof of [the suspects] operation of that vehicle, an
element of the offense of which [she] was a suspect. Id. at 526.
As Rossignol recognizes, the Innis test for what
constitutes interrogation is an objective test: it includes not
only questions that the officer subjectively knew were likely to
elicit an incriminating response, but also questions that the
officer should have known were reasonably likely to elicit an
incriminating response. Innis, 446 U.S. at 302, 100 S.Ct. at
1690 (emphasis in the original).
As the Fifth Circuit emphasized in United States v.
Webb, 755 F.2d 382 (5th Cir. 1985), the subjective intent of the
law enforcement officer is relevant only to the extent that it
bears on whether the [officer] should have known that their words
or actions were reasonably likely to evoke an incriminating
response. Id. at 388.
In Webb, a jail classification officer asked the
defendant, [W]hat kind of shit did you get yourself into?2 The
defendant responded, I murdered my son and buried him in the
desert.3 The classification officer later testified that the
purpose of this question was administrative in particular, to
determine where in the jail population the defendant should be
placed.4 Based on this testimony, the government claimed that
the jail officers question was an administrative question that
was normally attendant to custody, and that the question was
therefore exempt from the Innis definition of interrogation.5
But the Fifth Circuit rejected this argument. The court noted,
among other things, that the jail classification officer already
knew that the defendant had been charged with murder, and that
another jail classification officer had testified that it was not
normal procedure to ask a defendant to comment upon or explain
the charge against him.6
Other courts have likewise emphasized that the Innis
test focuses on the reasonable likelihood of an incriminating
response, rather than the officers potential administrative
interest in asking the question. For instance, a Texas appeals
court held that a suspect had been subjected to custodial
interrogation at the jail when a trooper asked him where he had
been going when he was pulled over, when and what he had last
eaten, and whether he had consumed an alcoholic beverage
because, under Innis, these questions were reasonably likely to
elicit an incriminating response.7 And an Illinois court held
that a drunk driving suspect was interrogated in violation of
Miranda when the police asked him if the motorcycle he was
driving belonged to him, whether it was registered in his name,
and whether it was insured and had valid license plates because
these questions were likely to evoke an incriminating response
that could result in more charges if the motorcycle was, for
instance, stolen or not registered.8
Returning to the facts of Klemzs case, Judge Huguelet
found that Probation Officer Fosters primary purpose in asking
Klemz how he had come to the probation office was to find out, as
a routine courtesy, whether there was anyone waiting for Klemz in
the lobby or in the parking lot.
This finding is indeed supported by the testimony
presented at the suppression hearing. But this finding does not
support the judges legal conclusion the conclusion that the
officers question was not interrogation for purposes of the
Miranda rule. The pertinent question, under Innis, is whether
Fosters question was reasonably likely to elicit an incriminating
response under the circumstances.
Here, Klemz was on probation for felony driving while
intoxicated. He arrived at a scheduled probation appointment
smelling of alcoholic beverages. Klemz took a breath test at the
request of his probation officer, and the test showed that he had
a blood alcohol level of .221 percent. Following this test,
Foster arrested Klemz for violating his probation (the condition
that barred him from consuming alcoholic beverages). Foster
handcuffed Klemz and started to transport him to jail. As they
were walking down the hall of the probation office, Foster asked
Klemz how he had gotten to the probation office. Klemz answered
that he had driven there in his truck. Fosters fellow probation
officer, Meyer, then asked Klemz to clarify whether he meant that
he had driven the truck himself, and Klemz answered that this was
so.
Given these circumstances, Fosters initial question was
reasonably likely to elicit an incriminating response from Klemz
and Meyers follow-up question was almost certain to do so. It
makes no difference, under Innis, that Foster may have had a
plausible administrative reason for asking his question, and it
further makes no difference that Foster and Meyer may have been
subjectively surprised that Klemz would admit committing a new
felony.
In other words, the superior court committed error in
ruling Klemz was not subjected to custodial interrogation for
purposes of Miranda. Klemz was in custody, he was not warned of
his rights, and he was questioned in a way that was reasonably
likely to elicit an incriminating response. Klemz is therefore
entitled to suppression of the statements he made in response to
the questions posed by Foster and Meyer.
This conclusion that Foster and Meyer violated Klemzs
rights when they asked Klemz how he had gotten to his appointment
at the probation office requires us to resolve an issue that
Judge Huguelet never addressed: whether this violation of Klemzs
Miranda rights requires suppression, not only of Klemzs
confession to Foster and Meyer, but also of Klemzs later
reiteration of that confession to Officer Hershberger.
As explained above, Hershberger administered Miranda
warnings to Klemz, and obtained Klemzs waiver of his rights,
before asking Klemz to confirm that he had driven his vehicle to
the probation office. Thus, the legal question to be resolved is
whether the police officers administration of these Miranda
warnings to Klemz was sufficient to insulate Klemzs ensuing self-
incriminating statements from the taint of the earlier Miranda
violation.
Most often, the resolution of this kind of issue would
require findings of historical fact, and we would have to remand
the case to the lower court with directions to make the needed
findings of fact. In the present case, however, all pertinent
aspects of Klemzs interaction with the police officer were tape
recorded and, with the exception of the first two minutes and
ten seconds of that interaction, videotaped. Moreover, in their
briefs to this Court, the parties do not disagree regarding any
pertinent facts.
Thus, the only remaining task is to legally categorize
the facts of the case. In this kind of situation, we (as an
appellate court) have the authority to resolve the Miranda taint
issue even though the superior court did not reach this issue.
And, as we are about to explain, we conclude that, despite
Hershbergers administration of Miranda warnings, Klemzs
statements to Hershberger were indeed tainted by the earlier
Miranda violation, even under the rule of Oregon v. Elstad, 470
U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985).
We confronted a similar factual situation in Crawford
v. State, 100 P.3d 440 (Alaska App. 2004). The defendant in
Crawford was arrested for driving with a revoked license, but he
was not immediately given Miranda warnings. During post-arrest
questioning, Crawford admitted that there was cocaine under the
seat of his vehicle.9 As soon as Crawford admitted this
additional crime, the arresting officer took Crawford back to his
patrol car and, for the first time, advised Crawford of his
Miranda rights.10 Crawford waived his Miranda rights and agreed
to further questioning.11
As we described in our Crawford opinion, the arresting
officer began this post-Miranda questioning by reminding Crawford
of the things he had previously admitted in particular, his
possession of ... cocaine under the seat of his car.12 The
officer questioned Crawford further about this cocaine, and then
he obtained Crawfords consent to search the car.13 After
receiving this consent, the officer entered Crawfords car and
found a bag of cocaine under the drivers seat.14
We held that, even though Crawford received Miranda
warnings, the statements he made about the cocaine after
receiving those Miranda warnings had to be suppressed under
federal law.15
In reaching this conclusion, we acknowledged that,
under the Supreme Courts decision in Oregon v. Elstad, all of the
statements that Crawford made after receiving Miranda warnings
(and after waiving his rights) were presumptively admissible
against him.16 Under Elstad, federal law presumes that once
Miranda warnings have been given, thus apprising the suspect of
the constitutional rights to silence and to the assistance of
counsel, the suspects choice whether to exercise his privilege to
remain silent should [thereafter] ordinarily be viewed as an act
of free will. Crawford, 100 P.3d at 446-47 (quoting Elstad, 470
U.S. at 311, 105 S.Ct. at 1294).
But as we also pointed out in Crawford, the Elstad
decision acknowledges that there may be instances in which
defendants can show that, despite receiving Miranda warnings,
they were nevertheless illegally pressured to continue speaking
instances in which the police exploit the [earlier] unwarned
admission to pressure [the defendant] into waiving his [or her]
right to remain silent. Crawford, 100 P.3d at 447 (quoting
Elstad, 470 U.S. at 316, 105 S.Ct. at 1296).
We concluded that Crawfords case was one of this latter
type an instance in which the police improperly exploited
Crawfords unwarned confession to obtain a post-warning
reiteration of that confession.
We pointed out that Crawford was arrested, handcuffed,
and then questioned without being advised of his rights. During
this pre-warning interrogation, Crawford admitted that he was
guilty of a felony (possession of cocaine). Upon hearing this,
the arresting officer advised Crawford of his Miranda rights but
then the officer began his post-warning interrogation by
immediately reminding Crawford that he had just confessed to
possessing cocaine under the seat of his car, and by questioning
Crawford further about the cocaine.17 We concluded that, viewing
these facts objectively,
Crawford was subjected to a continuing
interrogation about his possession of
cocaine, with Miranda warnings inserted
midstream, with barely an interruption, and
after Crawford had already confessed to this
crime. ... [W]e conclude that this
midstream administration of Miranda warnings
did not effectively apprise Crawford of the
nature of his rights and the consequences of
abandoning them. Rather, in these
circumstances, when Crawford heard the
Miranda warning that any statements he made
could be used against him, Crawford could
reasonably conclude that his earlier unwarned
admissions would be used against him thus
removing any incentive for Crawford to invoke
his right to silence when [the arresting
officer] immediately asked Crawford to
re-affirm those admissions.
. . .
We acknowledge that [the officer] did
not subject Crawford to a lengthy
interrogation before he administered the
Miranda warnings to Crawford. However, for
purposes of [the officers] investigation into
Crawfords illegal possession of drugs, this
short pre-warning interrogation was
sufficient: [the officer] elicited Crawfords
confession that he knowingly possessed the
cocaine under the seat of his car.
Immediately after ... elicit[ing] this
confession, [the officer] administered
Miranda warnings to Crawford and then,
essentially without pause, [the officer]
reminded Crawford of this confession and
asked him to re-affirm it. Under these
circumstances, we conclude that Crawfords
post-Miranda admission stemmed from an
improper exploitation of his earlier
statement taken in violation of Miranda.
Thus, the Elstad presumption is rebutted, and
Crawfords post-Miranda statements are
inadmissible.
Crawford, 100 P.3d at 450 (internal
quotations and footnotes omitted).
The facts of Klemzs case differ
slightly from the facts of Crawford, but not
in any significant way.
Klemzs probation officer (Foster)
arrested Klemz for a violation of his
probation (drinking alcoholic beverages).
Foster handcuffed Klemz and then, assisted by
another probation officer (Meyer), he began
escorting Klemz to jail. Even though both
probation officers knew (based on the breath
test) that Klemzs blood alcohol level was
almost three times the legal limit for
driving, neither officer warned Klemz of his
Miranda rights. Instead, as the three men
were walking out of the building, both Foster
and Meyer put questions to Klemz that could
reasonably be expected to elicit
incriminating responses questions concerning
whether Klemz had driven to the probation
office.
As soon as Klemz admitted that he
had driven himself to the probation office,
Foster and Meyer took Klemz back inside and
summoned the police. Officer Hershberger
arrived within fifteen minutes (and perhaps
as quickly as five minutes).
When Hershberger arrived, Foster
apprised him that Klemz had a blood alcohol
level of .221 percent, and that Klemz had
driven to his appointment at the probation
office. Hershberger then took Klemz outside,
accompanied by one of the probation officers.
Hershbergers first words of substance to
Klemz were: Heres the deal, Tom. ... You
obviously drove over here, and youve
obviously ... [, so] I gotta ask you a couple
of questions.
Hershberger then read the Miranda
warnings to Klemz although we note that he
did so in a fast-paced monotone, without
pause. Hershberger then asked Klemz if he
understood these rights and if he was willing
to talk. Klemz said yes.
Hershbergers next words of
substance to Klemz were a renewed assertion
that it was obvious that Klemz had committed
a new felony: Obviously, youve been driving
the vehicle, and obviously youve had a little
bit of alcohol. Klemz then repeated his
confession that he had driven his truck to
his appointment at the probation office.
Both of the probation officers was present
during Hershbergers conversation with Klemz.
That is, the officials who had heard Klemz
make his initial unwarned confession were
standing by, apparently ready to step in if
Klemz decided to retract or deny his earlier
admission that he had driven his truck to the
probation office. To a reasonable person in
Klemzs situation, the presence of the
probation officer would have reinforced the
perception that it was pointless to invoke
the Miranda right to silence.
In other words, just like the
defendant in Crawford, Klemz was subjected to
a continuing interrogation about his new
offense felony DUI with Miranda warnings
inserted midstream, with barely an
interruption, and after [Klemz] had already
confessed to this crime.18
As in Crawford, we conclude that
this midstream administration of Miranda
warnings did not effectively apprise Klemz of
the nature of his rights and the consequences
of abandoning them. Klemzs post-warning
reiteration of his confession stemmed from an
improper exploitation of his earlier
confession the one obtained in violation of
Miranda. Thus, the Elstad presumption is
rebutted, and Klemzs post-warning statements
are no more admissible than his pre-warning
statements.
In other words, the superior court
should have suppressed all of the challenged
statements in this case. Accordingly, the
judgement of the superior court is REVERSED,
and Klemz is entitled to a new trial.
_______________________________
1 See AS 28.35.030(a)(2).
2 Id. at 386.
3 Id.
4 Id.
5 Id., 755 F.2d at 388-89.
6 Id. at 389.
7 Branch v. State, 932 S.W.2d 577, 581 (Texas App. 1995).
8 People v. Pierce, 673 N.E.2d 750, 751-52 (Ill. App. 1997).
9 Id. at 442.
10Id.
11Id.
12Id.
13Id.
14Id.
15Id. at 450-51.
16Id. at 446-47.
17Crawford, 100 P.3d at 449-450.
18 Crawford, 100 P.3d at 450.
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