Amicus Curiae Brief — North Carolina v. Jackson

No. 98-203 ES

IN THE cadets

SUPREME COURT OF THE UNITEDSTATES

OCTOBER TERM, 1997

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STATE OF NORTH CAROLINA,

Petitioner,

v.

RICHARD ALLEN JACKSON,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE NORTH CAROLINA SUPREME COURT

BRIEF FOR AMICI STATES OF OHIO, ALABAMA, ALASKA,

ARIZONA, COLORADO, CONNECTICUT, DELAWARE,

HAWAII, IDAHO, ILLINOIS, KANSAS, LOUISIANA,

MARYLAND, MICHIGAN, MINNESOTA, MISSISSIPPI,

MONTANA, NEBRASKA, NEVADA, NEW HAMPSHIRE,

NEW JERSEY, OKLAHOMA, RHODE ISLAND, SOUTH

CAROLINA, SOUTH DAKOTA, TENNESSEE, UTAH,

VERMONT, WASHINGTON, WISCONSIN, THE

COMMONWEALTH OF PENNSYLVANIA AND THE

TERRITORIES OF GUAM AND U.S. VIRGIN ISLANDS

IN SUPPORT OF PETITIONER

BETTY D. MONTGOMERY

Attorney General of Ohio

JEFFREY S. SUTTON

State Solicitor

Counsel of Record

STEPHEN P. CARNEY

KIMBERLY L. CHARLES

Assistant Attorneys General

30 E. Broad Street, 17th Floor

Columbus, Ohio 43215-3428

(614) 466-8980

: COUNSEL FOR AMICI STATES

AND TERRITORIES

BILL PRYOR RICHARD P. IEYOUB

Attomey General Attomey General

State of Alabama State of Louisiana

BRUCE M. BOTELHO J. JOSEPH CURRAN, JR

Attomey General Attomey General

State of Alaska State of Maryland

GRANT WOODS FRANK J. KELLEY

Attorney General Attorney General

State of Arizona State of Michigan

GALE A. NORTON HUBERT H. HUMPREY III

Attorney General Attorney General

State of Colorado State of Minnesota

JOHN M. BAILEY MICHAEL C. MOORE

Chief State’s Attorney Attorney General

State of Connecticut State of Mississippi

M. JANE BRADY JOSEPH P. MAZUREK

Attorney General Attomey General

State of Delaware State of Montana

GUS F. DIAZ DON STENBERG

Attorney General Attorney General

lerritory of Guam State of Nebraska

MARGERY S. BRONSTER FRANKIE SUE DEL PAPA

Attorney General Attomey General

State of Hawa State of Nevada

ALAN G. LANCE PHILIP T. McLAUGHLIN

Attorney General Attorney General

State of Idaho State of New Hampshire

JAMES E. RYAN PETER VERNIERO

Attorney General Attomey General

State of Illinois State of New Jersey

CARLA J. STOVALL W.A. DREW EDMONDSON

Attorney General Attorney General

State of Kansas State of Oklahoma

D. MICHAEL FISHER

Attorney General

Commonwealth of Pennsylvania

JEFFREY B. PINE

Attorney General

State of Rhode Island

CHARLES M. CONDON

Attorney General

State of South Carolina

MARK BARNETT

Attomey General

State of South Dakota

JOHN KNOX WALKUP

Attorney General

State of Tennessee

JULIO A. BRADY

Attorney General

Territory of U.S. Virgin Islands

JAN GRAHAM

Attorney General

State of Utah

WILLIAM H. SORRELL

Attorney General

State of Vermont

CHRISTINE O. GREGOIRE

Attorney General

State of Washington

JAMES E. DOYLE

Attomey General

State of Wisconsin

ep Ue ose ty go GRR aa ea il

STATEMENT OF AMICI INTEREST ............... I

REASONS FOR GRANTING THE WRIT ............ 2

1. UNDER THE FIFTH AMENDMENT,

CUSTODY FAILS TO ARISE WHENEVER

INDIVIDUALS DO NOT FEEL “FREE TO

eS rie ic N' eos wake «Rak e.$ aie e's 3

Il. THE LOWER COURT _ DECISION

MISTAKENLY MERGES THIS COURT'S

CUSTODY AND SEIZURE INQUIRIES ....... 6

lil. THE LOWER COURT DECISION

CONFLICTS WITH A WIDE ARRAY OF

OTHER LOWER COURT DECISIONS AND

THREATENS TO DISRUPT LEGITIMATE

LAW ENFORCEMENT EFFORTS .......... 10

ON a ec ey WEL Oh a ee pie phe elas 13

C ‘ s ES

Berkemer v. McCarty,

468 U.S. 420 (1984) ..

California v. Beheler,

463 U.S. 1121 (1983)

(Commonwealth v. Morse,

691 N.E.2d 566 (Mass. 1998)

Delaware v. Prouse,

440 U.S. 648 (1979)

Edwards v. Arizona,

451 U.S. 477 (1981)

leltrop v. Bowersox,

91 F.3d 1178 (8th Cir. 1996)

cert. denied, 117 S. Ct. 1849 (1997)

l-lorida v. Bostick,

$01 U.S. 429 (1991)

Florida v. Royer,

460 U.S. 491 (1983)

INS v. Delgado,

466 U.S. 210 (1984)

Michigan v. Chesternut,

486 U.S. 567 (1988)

Miranda vy. Arizona,

384 U.S. 436 (1966)

Mosely v. State,

495 § E.2d 9 (Ga. 1998) |

Ohio v. Robinette,

$19 U.S. 33 (1996)

Oregon v. Mathiason,

429 U.S. 492 (1977)

PAGE

4,7,8,9

. passim

1]

6,7,11

. passim

1]

. passim

Pennsylvania v. Bruder,

Ee te PO EEOER. ook eK Ee oe 8

Schneckloth v. Bustamonte,

Cid EAE RET AD 0 Kas cay he eR ee ee eee 8

Silva v. State,

Oak Bie eee Cee. SRN ie, Se PO 1]

Stansbury v. California,

FEE ia SR ok a ee 4.9

State v. Easler,

Gee Eee Os ft. Pe Soe Sh ee ea 1]

State v. Gumm,

653 N.E.2d 253 (Ohio 1995)

cert. denied, 516 U.S. 1177 (1996) ......... 10,11

State v. Houser,

Dee Pee Oe Cee. NOES, 5 vcs hee eat cee 10

State v. Jeffreys,

682 A.2d 951 (Vt. 1996) ........ 33) aren 1]

State v. Moore,

Seo F.26 457 (Mom. 1994): os 10

Terry v. Ohio,

Soe Se RE 5 ae cab ae eee een 7

United States v. Erving,

1998 U.S. App. LEXIS

(aU Da, Boe Se SS eet tes gt

United States v. Glover,

104 F.3d 1570 (10th Cir. 1997) ........... a

United States v. Gonzalez,

121 F.3d 928 (Sth Cir. 1997),

cert. denied, 118 S.Ct. 726 (1998) ............ 1]

United States v. Hocking,

SOU: F.20 Fer (rm Cer. ISOS). oo nb ck ee hae 9

United States v. Kelly,

991 F.2d 1308 (7th Cir. 1993) ................ 4

United States v. Knox,

839 F.2d 285 (6th Cir. 1988)

cert. denied, 490 U.S. 1019 (1989)

United States v. Lee,

699 F.2d 466 (9th Cir. 1982) .

United States v. Martinez-Fuerte,

428 U.S. $43 (1976)

United States v. Melvin,

91 F.3d 1218 (9th Cir. 1996)

United States v. Mendenhall.

446 U.S. $44(1980) ......

United States v. Murray,

89 F.3d 459 (7th Cir, 1996)

United States v. Salvo,

133 F.3d 943 (6th Cir.)

cert. denied, 118 §. Ct. 1805 (1998)

United States v. Streifel,

781 F.2d 953 (Ist Cir. 1986)

United States v. Sullivan,

138 F.3d 126 (4th Cir. 1998) |

Lk) SR Se EY 8 ee

U.S. Const., amend. V ne adi cn Seen

4,9

Te

paesnate . passim

[ihe ad passim

STATEMENT OF AMICI INTEREST

Amicus curiae State of Ohio and 32 other amici States

and Territories join North Carolina in urging the Court to grant

the petition for certiorari. At stake is whether the “free to

leave” test for ascertaining whether an individual has been seized

for Fourth Amendment purposes governs the inquiry whether an

individual is in custody for Fifth Amendment purposes.

The amici States care about this issue for several

reasons. To begin with, the lower-court decision threatens to

sow uncertainty in an area that once had relative clarity. By and

large State and federal courts have been careful to distinguish

between Fourth Amendment inquiries into whether an individual

has been seized and Fifth Amendment inquiries into whether an

individual’s self-incrimination rights have been infringed. Yet,

by applying the same verbal formula in both settings — whether

a reasonable person would feel “free to leave” under the totality

of the circumstances — the lower court decision has blurred a

long-accepted line between the distinct inquiries into whether a

person has been seized or is in custody.

More than just uncertainty, however, explains the amici

States’ unified opposition to the decision below. It will

immediately unsettle law enforcement efforts in North Carolina

and carries the risk of unsettling law enforcement efforts

elsewhere in the event other State and federal courts import this

method of analysis. The most immediate impact of the decision

on law enforcement is this: If individuals are in custody

whenever they do not feel free to leave, that means that police

must give Miranda warnings whenever a Fourth Amendment

seizure has occurred. That of course has never been the law.

And it is no overstatement to suggest that this development, left

unreviewed, could significantly curb well-meaning and until now

weli-accepted law enforcement practices. It would mean that

every /erry stop would have to be accompanied by Miranda

warnings. Nor would this development necessarily be a plus for

individuals suspected of crime. Once the line between these

2

inquiries becomes blurred, it is not clear why courts will not

make a similar mistake in the opposite direction. If the custody

and seizure tests become one, in other words, courts may just as

easily (and just as incorrectly) export aspects of the custody

inquiry into the lower threshold of the Fourth Amendment

seizure inquiry.

Perhaps above all ther reasons for granting the petition,

the lower-court decision warrants review because it is wholly

incompatible with a series of decisions from this Court. Case

after case holds that police need not give Miranda warnings

whenever an individual has been seized for Fourth Amendment

purposes. While State Supreme Courts are free to experiment

with new ways of balancing the collective security interests of

their society against the liberty interests of their individual

citizens, they cannot do so in interpreting the U.S. Constitution.

Still less may they do so when their interpretation directly

contradicts decisions of this Court. For these reasons and those

added below, the amici States respectfully submit this brief for

the Court’s consideration.

REASONS FOR GRANTING THE WRIT

At issue before the North Carolina Supreme Court was

whether respondent was in custody at the time he confessed to

murdering a 22 year old woman. The court correctly

determined that if respondent was in custody at the time of the

confession and if he had already clearly invoked his right to

counsel at that time, then the ensuing confession would have to

be suppressed. In the eyes of the lower court, however, the

custody determination must be framed as follows: “A suspect

is in custody when, considering the totality of circumstances, a

reasonable person in the suspect’s position would not feel free

to leave.” Petition for Writ of Certiorari (“Pet.”) 5a (emphasis

added). There is no mistaking the “free to leave” orientation of

the court’s inquiry or the federal ground on which it relies. The

3

court repeats this verbal formulation at every turn in the

analysis. After announcing this understanding of the custody

test at the outset, it says “we conclude that a reasonable person

in the defendant’s position when he was confronted by the

sheriff would have felt he was in custody and would not have

felt free to leave.” Pet. 6a. It then notes that “he was never told

that he was free to leave.” Pet. 7a. Then again: After being in

the interrogation room for a period of time, “a reasonable man

at the least would have wondered whether he was free to

leave.” Pet. 7a. (emphasis added). And the coda’ “A

reasonable man in the defendant’s position... would not have

thought he was free to leave.” Pet. 7a. Because this analysis is

wrong, threatens to undercut and confuse legitimate law

enforcement efforts, and conflicts with decisions of other lower

courts, it should be reviewed and reversed

I. UNDER THE FIFTH AMENDMENT, CUSTODY

FAILS TO ARISE WHENEVER INDIVIDUALS

DO NOT FEEL “FREE TO LEAVE.”

As the lower court recognized, the obligation to provide

Miranda warnings, as well as the obligation to terminate

questioning upon the invocation of the right to counsel, see

Edwards v. Arizona, 451 U.S. 477 (1981), Miranda vy. Arizona,

384 U.S. 436 (1966), Pet. Sa, applies “only where there has

been such a restriction on a person’s freedom as to render him

‘in custody.”” Oregon v. Mathiason, 429 U.S. 492, 495

(1977)(per curiam). In determining what rises to the level of

custody for purposes of these obligations, however, this Court

has taken a very different path from the lower court.

From Miranda forward, the Court has looked not to

whether the individual felt “free to leave” but to whether he or

she had actually been arrested or so restricted in their movement

as essentially to be under arrest. In Miranda itseif, the Court

defined “custodial interrogation” as occuring when “a person

4

has been taken into custody or otherwise deprived of his

freedom of action in any significant way.” 384 U.S. at 444. In

decision after decision since then, the Court has said that the

“ultimate inquiry is simply whether there [was] a “formal arrest

or restraint on freedom of movement’ of the degree associated

with a formal arrest.” Stansbury v. California, 511 U.S. 318,

322 (1994)(per curiam) (quoting California v. Beheler, 463

U.S. 1121, 1125 (1983) (per curiam) (quoting Mathiason, 429

U.S. at 495)). See also Berkemer v. McCarty, 468 U.S. 420,

440, 442 (1984) (custody occurs only when a suspect’s

“freedom of action is curtailed to a degree associated with

formal arrest” or there has been the “functional equivalent of

formal arrest”) (internal quotation omitted). The clear

precedent set by this Court, and until now followed almost

uniformly by courts across the nation, is that indicia of a formal

arrest must accompany questioning or detention by law

enforcement officers to support a finding that an individual is “in

custody” for Miranda purposes. See United States v. Erving,

1998 U.S. App. LEXIS (June 26, 1998, 10th Cir.); United

States v. Sullivan, 138 F.3d 126 (4th Cir. 1998); United States

v. Salvo, 133 F.3d 943 (6th Cir.) cert. denied, 118 S. Ct. 1805

(1998): Feltrop v. Bowersox, 91 F.3d 1178 (8th Cir. 1996) cert.

denied, 117 §. Ct. 1849 (1997); United States v. Murray, 89

F.3d 459 (7th Cir. 1996), United States v. Kelly, 991 F.2d 1308

(7th Cir. 1993); United States v. Knox, 839 F.2d 285 (6th Cir.

1988) cert. denied, 490 U.S. 1019 (1989). In custody

determinations, a court must consider all of the circumstances

surrounding the interrogation from an objective viewpoint, “not

[from] the subjective views harbored by either the interrogating

officer or the person being questioned.” Stansbury, 511 U.S. at

322, 323.

The Court, moreover, has applied this well-established

test to settings in which individuals, like respondent here, were

interrogated in a criminal investigation. Consider the facts of

Mathiason. The individual voluntarily obliged a police officer’s

5

request to come to the police station for questioning, was told

he was not under arrest but was a suspect in a burglary, and was

falsely told that police had incriminating evidence against hirn.

The Oregon Supreme Court held that although the individual

was not arrested or otherwise formally detained, he was

questioned under “coercive” circumstances that triggered his

Miranda rights and his confession was obtained in violation of

Fifth Amendment principles. But “[a]ny interview of one

suspected of a crime by a police officer,” this Court observed in

reversing the decision of the Oregon Supreme Court, “will have

coercive aspects to it, simply by virtue of the fact that the police

officer is part of a law enforcement system which may ultimately

cause the suspect to be charged with a crime.” 429 U.S. at 495.

For these reasons, the Court concluded, “police officers are not

required to administer Miranda warnings to everyone whom

they question” and Miranda does not apply “simply because the

questioning takes place in the station house, or because the

questioned person is one whom the police suspect.” /d. In the

end, the Court held that “Miranda warnings are required only

where there has been such a restriction on a person’s freedom

as to render him ‘in custody.’” /d.

For like reasons, the Court in California v. Beheler

summarily reversed a decision of the California Court of

Appeals. There, the state court found custody on the grounds

that the interview took place at the police station, the individual

was a suspect, and the goal of the interview was to produce

incriminating evidence. As in Mathiason, however, the

individual went to the police station voluntarily, and was told by

law enforcement officers that he was not under arrest. Again,

this Court held that the “totality of circumstances” on which the

lower court focused did not support a finding that the individual

was arrested or otherwise formally restrained, and that the

confession was validly obtained. /d.

6

The decision of the North Carolina Supreme Court

repeats mistakes of the past -- specifically, those of the Oregon

Supreme Court in Mathiason and of the California Court of

Appeals in Beheler. Instead of focusing on whether the suspect

had been arrested in fact or in effect, the court focused solely on

whether a reasonable person in his shoes would have felt “free

to leave.” This interpretation of the Fifth Amendment lacks

support from a single holding of this Court. It should be

summarily reversed.

Il. THE LOWER COURT DECISION MISTAKENLY

MERGES THIS COURT’S CUSTODY AND

SEIZURE INQUIRIES.

The lower court decision not only makes new law, but

also merges two distinct Fourth and Fifth Amendment concepts.

There has long been, and continues to be. a distinction between

whether an individual has been seized for Fourth Amendment

purposes and whether an individual has been placed in custody

for Fifth Amendment purposes.

The Fourth Amendment protects individuals from

unreasonable searches and seizures or other “‘arbitrary and

oppressive interference by enforcement officials with the privacy

and personal security of individuals.” United States v.

Mendenhall, 446 U.S. 544, 553-554 (1980)(citing United States

v. Martinez-Fuerte, 428 U.S. 543, 554 (1976)). An individual

is “seized” only when, by means of physical force or a show of

authority, his freedom of movement is restrained.” /d. at 553.

In Mendenhall this Court held that for Fourth Amendment

purposes a “seizure” occurs “only if, in view of all the

circumstances surrounding the incident, a reasonable person

would have believed that he was not free to leave.” /d. at 554;

see also Michigan v. Chesternut, 486 U.S. 567, $73 (1988)

(“the Court has since embraced this test”); JNS v. Delgado, 466

U.S. 210, 215 (1984); Florida v. Royer, 460 U.S. 491, 502

7

(1983)(plurality opinion); //orida v. Bostick, 501 U.S. 429, 439

(1991)(setting forth a variant of the Mendenhall test: “whether

a reasonable person would feel free to decline the officers’

requests or otherwise terminate the encounter’). It is this test

that the North Carolina Supreme Court applied to a custody

determination for Fifth Amendment purposes.

Yet it remains well-established under this Court’s

precedents that there is a distinction between a Fourth

Amendment “seizure” and Fifth Amendment “custody.” In

Berkemer, the Court faced the question head on. At stake was

whether a routine traffic stop of a motorist constituted a

custodial interrogation requiring recitation of Miranda rights.

In that case, a state highway patrolman forced the motorist to

stop his vehicle upon observing it weave in and out of its lane of

traffic. 468 U.S. at 423. The officer asked the driver to exit the

vehicle and, upon noticing that the driver had difficulty standing,

came to the undisclosed conclusion that he would charge the

driver with a traffic offense and take him into custody. /d. The

officer asked the driver to perform a field sobriety test, and

when the driver could not complete the test, asked him whether

he had been using intoxicants. /d. The driver replied that he

had, at which point he was formally arrested, taken to the

county jail, and subjected to further questioning that resulted in

incriminating information. At no time was the driver advised of

his Miranda rights. Jd. at 424. Upon being charged with

operating a motor vehicle under the influence of alcohol or

drugs, the driver moved to exclude all incriminating statements

on the ground that they were elicited in violation of his Fifth

Amendment rights. /d.

The Court accepted certiorari of the case in order to

resolve the ambiguity and “confusion in the federal and state

courts” regarding “the time at which the Miranda doctrine

becomes applicable” in a traffic stop of a detained motorist who

has not been arrested. 468 U.S. at 420, 426. Likening the

8

routine traffic stop to a brief detention of an individual permitted

by Jerry v. Ohio, 392 U.S. 1 (1968), the Court stated: “we have

long acknowledged that ‘stopping an automobile and detaining

its occupants constitute a ‘seizure’ within the meaning of [the

Fourth] Amendmen|t], even though the purpose of the stop is

limited and the resulting detention quite brief.’” 468 U.S. at

436-37 (citing Delaware v. Prouse, 440 U.S. 648, 653 (1979)).

The Court then held that individuals “temporarily detained”

pursuant to traffic stops are not in custody for Fifth Amendment

purposes. /d. at 440. See also Pennsylvania v. Bruder, 488

U.S. 9 (1988).

As Berkemer confirms, a seizure does not rise to the

level of a custodial detention. Indeed, the Court went on to

analyze the traffic stop under the Mathiason test: whether there

was evidence to show that the motorist’s “freedom of action

[was] curtailed to a ‘degree associated with formal arrest,’” id.

(citing Beheler, 463 U.S. at 1125), thus entitling the motorist

“to the full panoply of protections prescribed by Miranda.” /d.

In holding that Berkemer’s prearrest statements to the police

were not the product of a custodial interrogation, the Court

considered the surrounding circumstances, including the brief

duration of the stop prior to the arrest, the few questions posed

by the officer, and the routine request for a field sobriety test --

all of which are common to a stop based upon suspicion of an

intoxicated driver -- and found that the situation could not

“fairly be characterized as the functional equivalent of a formal

arrest.” /d. at 442.

More recently, the Court confirmed the distinction

between Fourth Amendment ana Fifth Amendment rights in

Ohio v. Robinette, 519 U.S. 33, 117 S.Ct. 417 (1996), though

this time from an opposite perspective. Robinette was a Fourth

Amendment, not a Fifth Amendment, case, but in essence it also

threatened to contlate the two separate bodies of jurisprudence.

In Robinette, the lower court held that a lawfully seized

Oe

9

defendant must be warned that he is “free to go” before his

consent to search, or any “consensual interrogation,” could be

recognized as voluntary. /d. at 419-20. The Court reversed,

rejecting the attempt to impose a Miranda-style prophylactic

rule in a Fourth Amendment setting. /d. at 421. See also

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (also rejecting

per se requirement that defendants must know that they can

refuse a request to search). Thus, Robinette and Berkemer both

confirm, albeit from different directions, the importance of

distinguishing Fourth and Fifth Amendment modes of analysis.

The decisions of this Court have not only set forth

distinct tests for “seizure” and “custody” determinations -- see

Salvo, supra; Berkemer, supra; and Knox, supra -- they also

have provided a framework for determining what constitutes the

“functiona! equivalent of a formal arrest” for Fifth Amendment

purposes. Indicia of a formal restraint on an individual’s

freedom of action at least include whether the individual

voluntarily subjects himself to questioning by law enforcement

authorities; whether an individual’s freedom of action is

restricted while subjected to questioning and whether he can

leave at the conclusion of the interrogation; and whether the

individual is told that he is a suspect in an investigation. See

Mathiason, supra; Beheler, supra; Berkemer; supra;

Stansbury; supra. The determination of what circumstances

constitute the “functional equivalent of a formal arrest” depends,

at least in part, upon how a reasonable person in the suspect’s

position interprets the situation.

Unlike the North Carolina Supreme Court, other lower

courts have been careful to use the “free to leave” inquiry as but

one factor in the broader determination of whether a defendant

was “in custody” for Miranda purposes. See Salvo, supra at

950 (holding that for purposes of a Fifth Amendment custody

determination, courts may consider the “free to leave” inquiry

as one aspect of the totality of the circumstances, though the

10

inquiry is “not necessarily an ultimate or even dispositive” one);

United States v. Hocking, 860 F.2d 769, 773 (7th Cir.

1988)(partially reversed on other grounds)(in determining

whether the accused was subject to custodial interrogation, the

court should consider the totality of the circumstances, including

the accused’s freedom to leave the scene). But these courts

have been vigilant not to collapse the custody inquiry into a

“free to leave” analysis. Some courts have been careful

specifically to disavow any equating of “custody” and “seizure.”

See United States v. Streifel, 781 F.2d 953 (Ast Cir.

1986)(district court mistakenly thought that the principal

criterion for determining whether the defendants were in

custody for Miranda purposes was “free to leave”

determination).

Il. THE LOWER COURT DECISION CONFLICTS

WITH A WIDE ARRAY OF OTHER LOWER

COURT DECISIONS AND THREATENS TO

DISRUPT LEGITIMATE LAW ENFORCEMENT

EFFORTS.

The North Carolina Supreme Court’s decision

exacerbates a growing split of authority, as it is not the only

court to have erroneously used a “free to leave” test in

determining custody. Both state and federal courts have made

the same mistake. See United States v. Lee, 699 F.2d 466, 468

(9th Cir. 1982) (“In such circumstances a reasonably innocent

person could conclude that he was not free to leave”); State v.

Moore, 885 P.2d 457, 475 (Mont. 1994)(“If'a reasonable person

does not feel free to leave; then the examination is custodial.”).

Several other courts have in dicta indicated that the “free

to leave” language is the sole test of “custody,” and many of

these courts are likely poised to repeat North Carolina’s error.

For example, the Ohio Supreme Court confused the Fourth

Amendment and Fifth Amendment notions of “seizure” and

1]

“custody” in State v. Gumm, 653 N.E.2d 253 (Ohio 1995) cert.

denied, 516 U.S. 1177 (1996). In Gumm, this confusion is

shown not only by the court’s recital of the “free to leave”

language as the custody test, but by its citation to this Court’s

Mendenhall and Bostick decisions -- which are solely Fourth

Amendment seizure cases -- as support for that test. See id. at

268. In Gumm, however, the Ohio court avoided an erroneous

“custody” holding by happenstance, as “the state did not proffer

into evidence any statements” made in the disputed “custody”

situation, and thus the court did not need to actually apply the

custody test. /d.

Likewise, the Indiana Supreme Court adopted a “free to

leave” test, but it too blunted the effect of its error on other

grounds. See State v. Houser, 678 N.E.2d 95, 101-02 (Ind.

1997). In Houser, the court applied a free to leave test and

suggested that custody had occurred. /d. However, the court

did not rule conclusively, as the defendant had later repeated his

pre-Miranda statements after Miranda warnings were given,

rendering any error in admitting the pre-Miranda statements

harmless. /d.

Similarly, other courts have applied a “free to leave”

custody test, but have gone on to find that the defendant in

question was in fact free to leave, and thus was not in custody.

See, e.g., Mosely v. State, 495 $.E.2d 9, 12-13 (Ga. 1998) (test

is “whether a reasonable person would have felt he or she was

not at liberty to terminate the interrogation and leave”); Silva v.

State, 951 P.2d 591, 594 (Nev. 1997) (“[t]he test for whether

one is in Custody is if a reasonable person would believe he was

free to leave”); State v. Jeffreys, 682 A.2d 951, 953 (Vt. 1996)

(test is “if a reasonable person would have felt free to leave or

to refuse to answer police questions”). These cases may well

have reached the right result, though by applying the wrong test,

as someone free to leave is likely not in custody. But the plain

adoption of the “free to leave” test means that an erroneous

12

custody finding awaits merely a different set of facts. Compare

United States v. Melvin, 91 F.3d 1218, 1222 (9th Cir. 1996)

(custody occurs if “a reasonable person would believe that he is

not free to leave,” but no custody on these facts) and United

States v. Lee, supra, 699 F.2d at 468 (Ninth Circuit applying

same test and finding custody).

On the other side of this split, there are of course many

more courts that properly apply the “arrest or indicia of arrest”

test in determining custody. See, e.g., United States v.

Gonzalez, 121 F.3d 928, 939-40 (Sth Cir. 1997), cert. denied,

118 S.Ct. 726 (1998); United States v. Glover, 104 F.3d 1570,

1578 (10th Cir. 1997); Commonwealth v. Morse, 691 N.E.2d

566, 570 (Mass. 1998); State v. Easler, 489 $.E.2d 617, 621

(S.C. 1997). See also Pet. at 19-21, n. 2.

In light of the real-world consequences of this error, and

in light of the clear nature of the lower court’s error, the amici

States join the State of North Carolina in urging the Court

summarily to reverse the lower court’s decision, or in the

alternative to grant the writ and hear the case in full.

a ee

13

CONCLUSION

For the foregoing reasons, the amici States respectfully

urge the Court to grant the writ.

Respectfully submitted,

BETTY D. MONTGOMERY

Attorney General of Ohio

JEFFREY S. SUTTON

State Solicitor

Counsel of Record

STEPHEN P. CARNEY

KIMBERLY L. CHARLES

Assistant Attorneys General

30 E. Broad Street, 17th Floor

Columbus, Ohio 43215-3428

(614) 466-8980

COUNSEL FOR AMICI STATES

AND TERRITORIES

Date: August 28, 1998