Drury v. State

*342 BATTAGLIA J.,

dissenting.

I respectfully dissent.

At approximately 5:40 a.m. on July 14, 1996, Corporal Whaley of the Centreville Police Department responded to a call reporting a breaking and entering and theft at the Hillside Market in Centreville, Maryland. During the course of his investigation, Corporal Whaley found a tire iron, which had been used to break into the store. The investigation also revealed that the suspects had stolen $1,370.00 worth of instant scratch off lottery tickets, $299.00 worth of adult magazines, $800.00 worth of cartons of cigarettes, and $104.92 worth of alcoholic beverages. A later search of refuse by Corporal Whaley revealed a trash bag containing several adult magazines and one empty malt liquor bottle.

Thereafter, on July 15th, Corporal Whaley went to the place of employment of Mr. Carl Kirby to speak with him about the incident. Kirby revealed that the petitioner, Dwayne Drury, and another individual, David Reinecke, committed the Hillside Market theft.

Later that same day after talking with Kirby, Corporal Whaley went to Drury’s residence from whence he and Drury traveled to the Centreville Police Department to discuss the matter. Drury and Corporal Whaley were in the Corporal’s office at the police station when the following occurred, as recounted by Corporal Whaley:

Whaley: I was stating, I placed the evidence up on my desk, which I was going to be presenting to Mr. Drury, and while presenting it, I was explaining to him the process that was going to be taking place, as far as when I showed him the tire iron, I advised him I it would be sent off for — to lift possible latent prints as far as the individuals that were the perpetrators, at which time Mr. Drury made the statement to me that his prints could possibly— were probably on that tire iron because there are hundreds of tire irons around Centreville.

State: Did you show him anything else?

*343 Whaley: When I was picking the bag up to show it to him, he made the statement that he advised me [of] the contents of the bag, and he made the statement that he had already touched it.

State: By the bag, you mean the trash bag you found in the alley way?

Whaley: That’s correct.

State: What did he say?

Whaley: He stated that the magazines were in it. He did not mention the malt liquor bottle.

State: Was that before you showed him the contents?

Whaley: That’s correct.

State: What did he say?

Whaley: He said he knew what was in the bag. He basically told me the magazines were in the bag, that he had touched them.

State: And that’s pretty much the end of your discussion with Mr. Drury?

Whaley: That’s correct. He chose to exercise his right not to talk to me.

Drury was released, without arrest.

After further investigation, Drury was arrested on July 26, 1996, and charged with burglary in the second degree pursuant to Maryland Code (1957, 1996 RepLVol.) Art. 27, Section 30(a), burglary in the fourth degree pursuant to Maryland Code (1957, 1996 RepLVol.) Art. 27, Section 32(a)(2) and (c), theft pursuant to Maryland Code (1957, 1996 RepLVol.) Art. 27, Section 342, malicious destruction of property pursuant to Maryland Code, (1957, 1996 RepLVol.) Art. 27, Section 111, and common law conspiracy.

Prior to trial, petitioner moved to suppress the statements he made to Corporal Whaley upon his arrival at the police station on the grounds that he had not been given his Miranda warnings. The thrust of his argument was that Corporal Whaley had intended to elicit an incriminating statement when he placed the evidence on his desk and informed Drury *344 that it would be processed for fingerprints. The trial court denied the motion to suppress, stating:

Just saying he was going to do it, he got the evidence bag and he said he put it down on the desk or table in front of him, meaning the officer, you asked him specifically that, and he, your client then, according to the officer, just made these statements. In some ways they weren’t even apropos of anything that was said, he said he was going to send them off. Just doesn’t seem to me that that is something that would prompt an answer.

Petitioner argues, and the majority agrees, that the trial court improperly denied his motion to suppress because by confronting Drury with the physical evidence of his crime and informing him that the evidence would be processed for fingerprints, Corporal Whaley engaged in the functional equivalent of an interrogation in violation of Drury’s Fifth Amendment privilege against self-incrimination. I do not agree. The situation presented does not differ significantly from the scenario that arises when a suspect is in custody and is expressly questioned while being “booked,” when Miranda ' warnings are not required.

From the majority’s perspective, being brought by police officers to, and crossing the threshold of, the police station creates an environment which is instantaneously infused with coercive and compelling elements for a suspect. In their view, being taken to the police station itself could be sufficient to trigger the administration of Miranda warnings. In contrast, however, in Pennsylvania v. Muniz, 496 U.S. 582 , 110 S.Ct. 2638 , 110 L.Ed.2d 528 (1990), in which the drunken driver was in custody at the police station, the Supreme Court recognized that there is a distinction between questions or situations involving coercion designed to elicit information for investigatory purposes and requiring administration of Miranda warnings, and communication between police officers and suspects, such as pre-Miranda booking questions. In Muniz , a plurality of the Court determined that the Miranda warnings are not required before “routine” booking questions are asked. See 496 U.S. at 601 , 110 S.Ct. at 2650 , 110 L.Ed.2d at 552 .

*345 This Court in Hughes v. State, 346 Md. 80 , 695 A.2d 132 , cert. denied, 522 U.S. 989 , 118 S.Ct. 459 , 139 L.Ed.2d 393 (1997), recognized that not all questions proffered to a suspect during the booking process are so immunized and suggested that careful scrutiny of the factual setting of each encounter was required. Id. at 94-95, 695 A.2d at 139 (explaining that for the booking question exception to apply, “the questions must be directed toward securing simple identification information of the most basic sort”) (quoting United States ex rel. Hines v. LaVallee, 521 F.2d 1109 , 1113 & n. 2 (2nd Cir.1975), cert. denied sub. nom., Hines v. Bombard, 423 U.S. 1090 , 96 S.Ct. 884 , 47 L.Ed.2d 101 (1976)) (internal quotations omitted).

In the present case, Drury was not confronted with a situation in which he was questioned at all or asked for a response to which he would have to decide among truthfulness, falsity or silence — the “trilemma” discussed in Muniz. 496 U.S. at 596-97 , 110 S.Ct. at 2647-48 , 110 L.Ed.2d at 549 . Rather, he blurted out an explanation about his fingerprints and the trash bag, which he intended to be exculpatory and explanatory.

Furthermore, Corporal Whaley posed no question to Drury, which would call for an answer or expression of an opinion; the officer simply informed Drury that the evidence would be sent off for fingerprinting. See United States v. Allen, 247 F.3d 741, 765 (8th Cir.2001), petition for cert. filed, (U.S. Oct. 22, 2001) (No. 01-7310) (“Informing a suspect that he has been identified in a lineup contributes to the intelligent exercise of his judgment and may likely make firm his resolve to refuse to talk to the police without counsel.”); United States v. Payne, 954 F.2d 199, 203 (4th Cir.1992), cert. denied, 503 U.S. 988 , 112 S.Ct. 1680 , 118 L.Ed.2d 396 (1992) (agent’s statement to defendant which did not seek or require a response was not an interrogation); United States v. Jackson, 863 F.2d 1168, 1172 (4th Cir.1989) (DEA agent’s statement which was in the form of a declaration, not a question, was not the functional equivalent of an interrogation where defendant responded to hearing the agent’s declaration by making a false exculpatory statement which was used against him at trial); United States v. *346 Comosona, 848 F.2d 1110, 1112-13 (10th Cir.1988) (agent’s act of giving defendant his business card and inviting defendant to call him if he wanted to talk to him about the incident after defendant had invoked his right to counsel was not an impermissible interrogation as contemplated by the Supreme Court’s decisions in Miranda and Innis); Virgin Islands v. Kidd, 79 F.Supp.2d 566, 574 (D.Vi.1999) (finding no interrogation took place where a defendant confessed to committing the crime after one of the police officers initiated a conversation with the defendant about his family); Weber v. State, 326 Ark. 564 , 933 S.W.2d 370, 373 (1996) (finding no interrogation where the defendant made an inculpatory statement prior to arrest upon being greeted by the police officer); State v. Porter, 303 N.C. 680 , 281 S.E.2d 377, 384-85 (1981) (where a radio exchange between two officers inquiring of one another as to whether the bank bag had been recovered prompted defendant to inform the officers that “the bank bag is in the car” followed by the officer clarifying by asking, “What bank bag?” and defendant’s statement, “The bag from the robbery” was found not to be the product of an interrogation).

While it is clear from the facts of this case that petitioner was not subjected to an express interrogation by Corporal Whaley prior to being informed of his Miranda rights, such as in the booking situation, Drury, nevertheless, argues that he was subjected to the “functional equivalent of an interrogation” as explicated in the United States Supreme Court’s decision in Rhode Island v. Innis, 446 U.S. 291, 300-01 , 100 S.Ct. 1682, 1689 , 64 L.Ed.2d 297, 307-08 (1980). That is not the case here, however.

The Court in Innis set forth the following explanation of what constitutes an interrogation as contemplated by the Miranda decision:

We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to *347 arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.

446 U.S. at 300-02 , 100 S.Ct. at 1689-90 , 64 L.Ed.2d at 307-08 . (emphasis in original).

The Fourth Circuit Court of Appeals noted that “the Innis definition of interrogation is not so broad as to capture within Miranda’s reach all declaratory statements by police officers concerning the nature of the charges against the suspect and the evidence relating to those charges.” Payne, 954 F.2d at 202 ; see Tucker v. Warden, 175 F.Supp.2d 999, 1002-03 (S.D.Ohio 2001) (stating that “to determine whether a suspect has been ‘interrogated,’ the heart of the inquiry focuses on police coercion, and whether the suspect has been compelled to speak by that coercion”) (quoting State v. Tucker, 81 Ohio St.3d 431 , 692 N.E.2d 171, 175 (1998)); Kirby v. Senkowski, 141 F.Supp.2d 383, 395 (S.D.N.Y.2001) (stating that for statements to be suppressed as a violation of the Fifth Amendment privilege against self-incrimination, “the statements must be the result of compulsion”); United States v. Castorena-Jaime, 117 F.Supp.2d 1161, 1170 (D.Kan.2000) (“... absent a showing of coercion or other misconduct by law enforcement, an arres-tee’s volunteered statements made before receiving the Miranda warning may be used against him.”)

*348 Ascertaining whether a particular situation involved an interrogation or the functional equivalent of an interrogation depends on the facts and circumstances of each case, “particularly whether the statements are objectively and reasonably likely to result in incriminating responses by the suspect, as well as the nature of the police statements and the context in which they are given.” Allen, 247 F.3d at 765 . While it is true that a direct question need not be posed to a criminal defendant in order to constitute the functional equivalent of an interrogation, see Innis, 446 U.S. at 301 , 100 S.Ct. at 1689-91 , 64 L.Ed.2d at 308 , I believe that Corporal Whaley’s direct factual statement that the items would be processed for fingerprinting does not rise to the level of coercion or compulsion contemplated in Innis as being the functional equivalent of an interrogation. As the Fourth Circuit Court of Appeals explained in Payne :

That no comment on the evidence in a case will ever issue in the presence of a criminal suspect seems to us neither realistic nor desirable as an absolute rule derived from the Fifth Amendment. Indeed, it may even be in the interest of a defendant to be kept informed about matters relating to the charges against him.

We thus reject [Payne’s] argument that statements by law enforcement officials to a suspect regarding the nature of the evidence against the suspect constitute interrogation as a matter of law. It simply cannot be said that all such statements are objectively likely to result in incriminating responses by those in custody. The inquiry mandated by Innis into the perceptions of the suspect is necessarily contextual ... and whether descriptions of incriminating evidence constitute the functional equivalent of interrogation will depend on circumstances that are too numerous to catalogue. As a result, substantial deference on the question of what constitutes interrogation must be paid to the trial courts, who can best evaluate the circumstances in *349 which such statements are made and detect their coercive aspects.

954 F.2d at 202-03 . The same result occurred in Williams v. State, 342 Md. 724, 760-61 , 679 A.2d 1106, 1125 (1996) when this Court did not suppress an incriminatory statement made by a defendant in custody in a police station after police advised him that they had evidence establishing his guilt, although the defendant had invoked his right to an attorney and one was not present.

Although one could opine that Corporal Whaley was being deceptive in his placement of the evidence on the desk in front of Drury simultaneously with his declaration that the items would be processed for fingerprints, that opinion is not enough of a basis to require suppression of Drury’s statement. It is not improper to confront a suspect with the factual or physical evidence of his or her allegedly criminal act. Numerous federal and state jurisdictions have rejected what Drury asserts when they have considered a wide range of factual scenarios which involved confronting a suspect with physical evidence of the crime or a verbal recitation to the suspect of the evidence against him. See Allen, 247 F.3d at 764-65 (holding that informing the suspect that three out of four eyewitnesses placed him at the scene of the crime was “a simple description of the status of the ongoing investigation” and not the functional equivalent of an interrogation for purposes of the Fifth Amendment); Payne, 954 F.2d at 203 (holding that agent’s statement to defendant during post-arrest transport by the FBI informing defendant that agents had found a gun in his home after which defendant made an inculpatory remark was not an interrogation); Lewis v. State, 509 So.2d 1236 (Fla.App. 4th Dist.1987), cert. denied, 486 U.S. 1036 , 108 S.Ct. 2025 , 100 L.Ed.2d 612 , (1988) (trial court did not err in failing to suppress defendant’s statement, “Man, he took it like a man. I should have hit him a couple more times,” which defendant made while police were showing him a videotape of the robbery because the act of showing the tape *350 was not the functional equivalent of an interrogation); State v. McLean, 294 N.C. 623 , 242 S.E.2d 814, 818 (1978) (finding that by displaying the suspect’s belongings found at the scene of the crime to the suspect while he was in custody, but had not been given the Miranda warnings, the officer did not engage in conduct which was “inquisitional in nature,” thus the suspect’s statements were not the product of an interrogation).

It is also important to note that Drury was not arrested on July 15, 1996, after he gave his explanation. He was arrested on July 26,1996, after additional investigation.

Thus, my analysis reveals that Drury’s pre-Miranda custodial statements concerning the physical evidence-of his crime were the product of his own free will and consciousness, rather than the result of an interrogation. I believe the majority stretches the holding of Innis to conclude that under the circumstances present in this case, of having the defendant view physical evidence of the crime and of having a police officer state that the evidence will be processed for fingerprints, is tantamount to an interrogation. I agree with the Circuit Court’s decision to deny Drury’s motion to suppress his unwarned statement, for I find no Fifth Amendment violation. Accordingly, I would affirm the decision of the Court of Special Appeals.

Judge CATHELL has authorized me to state that he joins in this dissent.