which included unzipping a pocket of a jacket in the car's passenger seat after all of the car's occupants were removed and placed under arrest. There is no requirement under Belton that every occupant must be placed under arrest before a search incident to arrest may occur. The search of the vehicle in the present case was conducted incident to Wilson's arrest, not Green's. Since the validity of Wilson's arrest is uncontested, the search of the passenger area of the car was justified.
B. Green's Statements Before He Was Mirandized
Green also argues that the statements he made at the scene and in transit to the station ought to be suppressed. Green argues that because he was not read his Miranda warnings before these statements were made, his Fifth and Fourteenth Amendment rights would be violated by their admission at his trial. The Government responds that because these statements were not obtained in the context of "custodial interrogation," that there was no need to Mirandize the defendant until his arrival at the station.
In determining when a person is in custody for purposes of receiving Miranda warnings "the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation." Berkemer v. McCartny, 468 U.S. 420, 442, 82 L. Ed. 2d 317, 104 S. Ct. 3138 (1984). In Berkemer the Court refused to set out a blanket rule that all traffic stops resulted in "custody." In leaving this determination to trial courts, however, the Court expressly noted that "if a motorist who has been detained pursuant to a traffic stop thereafter is subjected to treatment that renders him "in custody" for practical purposes, he will be entitled to the full panoply of protections prescribed by Miranda." Id. at 440. Under an objective determination, Mr. Green was in custody "for practical purposes."
There were at least three officers on the scene when Mr. Green was asked to stand on the curb. One of them was standing immediately next to him. Another had just formally arrested the driver. The third was conducting a thorough search of the defendant's car. From the outset, then, this was far more than a run-of-the-mill traffic stop. Subsequently, the search produced a clear medicine bottle in the passenger compartment which contained a substance the officers correctly believed to be narcotics. The police at that point physically restrained the defendant. He was held on the ground by a police officer. No reasonable person could argue that at that moment the defendant could simply have gotten up off the pavement, turned his back on the car and the three officers, and walked away. Indeed, it would have been poor police work to allow the defendant to walk away at that time. The Court finds that Green was in custody at the point he was placed on the ground.
A person in custody is entitled to Miranda warnings if he is "subjected to either express questioning or its functional equivalent." Rhode Island v. Innis, 446 U.S. 291, 300, 64 L. Ed. 2d 297, 100 S. Ct. 1682 (1980). Thus, a person must be advised of his Miranda warnings when there are "words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response from the suspect." Id. at 301. Since both "express" interrogation and its equivalent took place before Green arrived at the police station, his remarks until that time must be suppressed.
Upon finding the medicine bottle, the police asked Mr. Green whose it was. Mr. Green remained silent. Dissatisfied with that reaction the police officer put the same question again. This time, however, he added the comment that if the narcotics did not belong to Green they must belong to his mother. Because the car was registered in his mother's name, it was reasonable for Green to perceive this comment as an indirect threat to his mother. Facing this coercive pressure, and surrounded by police officers, Green responded to the question. While it is not beyond the power of the police to use such an aggressive form of interrogation, it is beyond the pale of argument to say that it is not "interrogation" at all. The police twice put a direct question to Green, the answer to which could reasonably have elicited an incriminating response. Mr. Green was entitled to know, at the time of that questioning, that the Constitution guaranteed him the right not to answer.
Moments later, in transit to the station, Green repeated that the drugs belonged to him. This later comment was not "blurted out" as the government claims. It was a continuation of his response to the earlier interrogation. This is made clear by the fact that Green's statement was made in the form of a denial that the drugs belonged to someone else -- the substance of the earlier police accusation. It was only when Green reached the station that he was properly informed of his Miranda rights. Accordingly, it was only his statements at that time that are admissible against him at his criminal trial. Defense counsel concedes this point and has not moved to suppress Green's statements after he was Mirandized.
A separate order accompanies this opinion.
ORDER - October 28, 1991, Filed
In consideration of the entire record in the above captioned case, the defendant's motion to suppress physical evidence and statements, and the government's opposition thereto, it is, this 28th day of October in 1991 hereby,
ORDERED that the defendant's motion to suppress the physical evidence seized in the search of the car on July 16, 1991 is DENIED and it is
FURTHER ORDERED that the defendant's motion to suppress certain statements made by the defendant before he was read his Miranda warnings at the police station is GRANTED.
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