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Higgins v. State (12/23/94) ap-1386
NOTICE: This opinion is subject to
formal correction before publication in the
Pacific Reporter. Readers are requested to
bring typographical or other formal errors to
the attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE COURT OF APPEALS OF THE STATE OF ALASKA
KATHY S. HIGGINS, )
) Court of Appeals No. A-4722
Appellant, ) Trial Court No. 3AN-S90-
v. ) O P I N I O N
STATE OF ALASKA, )
) [No. 1386 - December 23, 1994]
Appeal from the Superior Court, Third
Judicial District, Anchorage, Milton M.
Appearances: Linda K. Wilson, Assistant
Public Defender, and John B. Salemi, Public
Defender, Anchorage, for Appellant. Kenneth
M. Rosenstein, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Charles E. Cole, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
BRYNER, Chief Judge.
Kathy S. Higgins pled no contest to two counts of
misconduct involving a controlled substance in the third degree
and one count of misconduct involving a controlled substance in
the fourth degree, reserving the right to appeal1 Superior Court
Judge Milton M. Souter's denial of Higgins' motion to suppress
evidence resulting from statements that Higgins claimed were
obtained in violation of her Miranda2 rights and were
involuntary. Higgins now appeals. We reverse.
On October 31, 1990, the Alaska State Troopers obtained
warrants to search Higgins' Anchorage residence and to arrest
Michael Van Cleve, who lived with Higgins. Trooper Karma Van
Gelder, accompanied by seven other troopers in raid gear and a
uniformed Anchorage Police Officer, executed the warrant at 6:45
p.m. that same night. The officers approached and knocked on the
front door; when no one answered immediately, one of them "kicked
at the door to kick it open." At the same time, Higgins unlocked
the door, which "flew open."
The officers rushed inside with their weapons drawn.
Trooper Van Gelder encountered Higgins at the door; Higgins' two
young children stood at her side. Michael Van Cleve ran down the
hall, away from the door. As other officers chased Van Cleve
down and placed him under arrest, Higgins "grabbed" at Van
Gelder's hands. Van Gelder told Higgins that she was not under
arrest; at the same time, Van Gelder ordered Higgins to "stand
still and not to grab my hands." Higgins complied but became
"progressively more hysterical." Van Gelder denied Higgins
permission to pick up one of the children, but allowed her to put
her arm around the child.
About five minutes after the officers arrived, Van
Gelder directed Higgins to a bedroom and began to question
Higgins without advising her of her Miranda rights. Van Gelder
opened the questioning by saying:
[W]e know you've been selling cocaine
out of this house and that's what we need to
talk to you about. We've already . . .
arrested a lot of people in Seward today,
okay? We've talked to a lot of people,
you've got to make a decision right now.
Okay, you're not under arrest at this moment,
okay? You don't have to stay here.
Van Gelder further explained:
Okay. One thing you need to think
about, okay? You're not under arrest right
now. Okay? Uh, that doesn't mean that the
charges aren't gonna be filed later. We have
a lot of information, okay? You need to
think very seriously, you got a couple of
very cute little girls here.
A short time later, Van Gelder left the room to secure
a shotgun that Higgins said was in a hall closet. As she left,
Van Gelder asked Higgins to "stand here a minute." Upon Van
Gelder's return, Higgins inquired about Van Cleve. Saying that
Van Cleve had not yet been removed from the house, Van Gelder
told Higgins, "I want you to stay right here, okay?" Van Gelder
then directed Higgins' children into an adjacent bedroom and,
after repeating, "Okay, like I said, you're not under arrest,
okay? . . . That does not mean that charges won't be filed
later," proceeded to interrogate Higgins.
The interrogation lasted almost an hour. In the course
of questioning, Higgins confessed having possessed and sold
cocaine for Van Cleve and having possessed a small quantity for
her own use. Higgins also told Van Gelder that Van Cleve had
recently enlisted her to deposit some cocaine in a parked car for
storage. Higgins agreed to accompany Van Gelder to the office of
a magistrate, in order to secure a search warrant for the car.
Higgins subsequently appeared before a magistrate and testified
in support of the warrant. In the course of this testimony, Van
Gelder asked Higgins if she had been told she was under arrest
prior to questioning: "Did I tell you whether you were free to go
or not?" Higgins replied, "Yes." Van Gelder further asked,
"Okay, what did I tell you?" Higgins responded, "I could leave,
that I wasn't under arrest."
Higgins was not arrested that night. Based primarily
on her confessions to Van Gelder, however, she was later
indicted. Prior to trial, Higgins moved to suppress all evidence
resulting from her statements. She contended that Van Gelder had
subjected her to custodial interrogation without first reciting
the Miranda warnings; she also contended that her statements to
Van Gelder were involuntary.
At the hearing on Higgins' suppression motion, Judge
Souter listened to testimony from several witnesses, including
Higgins and Van Gelder. The judge also listened to tape
recordings of the troopers' October 31 entry into Higgins' home,
of Van Gelder's interview with Higgins, and of Higgins' ensuing
appearance before the magistrate.
Upon conclusion of the hearing, Judge Souter found
that, under an objective standard, Higgins' interrogation had
been custodial -- in other words, under the totality of the
circumstances, a reasonable person in Higgins' position would
have felt restrained and not free to go. Judge Souter based this
finding on a number of factors: nine officers forced their way
into Higgins' home without warning and with weapons drawn; Van
Gelder first told Higgins that she was not under arrest "very
quickly after" the forcible police entry; Van Gelder's precise
statement was that Higgins was "not under arrest at this moment";
and Van Gelder told Higgins to stand still and not grab Van
Gelder's hands. Based on these factors, Judge Souter concluded
that, despite Van Gelder's statement that Higgins was not in
custody, the initial contact between Van Gelder and Higgins was
"a situation highly charged with custodial restriction."
What followed, in Judge Souter's view, did not alter
the initial custodial atmosphere. Judge Souter found that "Van
Gelder quite quickly [brought] the defendant's children into the
situation." The judge pointed out that, on the one hand, Van
Gelder repeated that Higgins was not under arrest, while, on the
other hand, the trooper reminded Higgins, "That doesn't mean
charges aren't going to be filed later," and, "You need to think
very seriously. You got a couple of very cute little girls
here." Based on his review of the tape recording of the
interview, Judge Souter commented, "It's easy to say x and yet
the way you say x you convey not x. The opposite. And that
seems to be an instance of that occurring right there."
The judge characterized Van Gelder's words as "a
statement charged with a threat of holding [Higgins] in custody."
According to the judge, "`Either cooperate or I'll take you into
custody' is a reasonable interpretation of that statement. And,
`You better look out for your little kids if I take you into
custody.'" Judge Souter further pointed out that, in the ensuing
portions of the interview, there were several instances when Van
Gelder told Higgins to "stay where she's at." The judge noted,
finally, that, throughout the interview, Van Gelder's tone was "a
controlling tone." Judge Souter emphasized that this conclusion
was based on his review of the tape recording: "I had to listen
to the tape. It makes a difference. The trooper's tone was
controlling." In fact, according to the judge, "This whole thing
is charged with the tone of control, the tenor. Both the words
that were used and the . . . tone of voice, controlling."
Judge Souter summarized the totality of the
circumstances as follows:
That a reasonable person in [Higgins']
position, given the way this occurred, given
the trooper's tone of voice, given the
repeated indications that I recited into the
record of control on the part of the trooper,
that a reasonable person would have believed
that they were not free to leave.
Nevertheless, Judge Souter went on to rule that the
custodial atmosphere arising from the objective circumstances was
not determinative, because, despite these circumstances, Higgins
had subjectively believed that she was not in custody. The judge
pointed to Higgins' testimony before the magistrate acknowledging
that Van Gelder had told Higgins that she was not under arrest
and was free to leave. Judge Souter interpreted Higgins'
testimony as an admission that Higgins had believed what she was
told: "She understood that she was free to leave. That's her
testimony to the magistrate and I find it compelling."
Judge Souter concluded that, in this situation,
Higgins' subjective belief governed, rather than the objective
[I]t appears to me that if a defendant
truly believes that they're not in custody,
that even though a reasonable person might
have believed to the contrary, that it's the
actual belief of the defendant that counts.
And I do find that she indeed knew that she
was free to leave.3
On this same basis -- that Higgins was subjectively aware that
she was not in custody -- Judge Souter further concluded that
Higgins' confession was voluntary.
On appeal, the state concedes that Judge Souter applied
an incorrect legal standard in determining whether Higgins had
been subjected to a custodial interrogation that required Miranda
warnings. This concession appears to be well-founded.
In Miranda v. Arizona, 384 U.S. 436, 444 (1966)
(footnote omitted), the United States Supreme Court held:
[T]he prosecution may not use
statements, whether exculpatory or
inculpatory, stemming from custodial
interrogation of the defendant unless it
demonstrates the use of procedural safeguards
effective to secure the privilege against
self-incrimination. 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
For purposes of determining the existence of Miranda
custody, the United States Supreme Court has adopted an objective
standard: "[T]he only relevant inquiry is how a reasonable
[person] in the suspect's position would have understood [the]
situation." Berkemer v. McCarty, 468 U.S. 420, 442 & n.35
(1984). See also Stansbury v. California, ___ U.S. ___, 114
S.Ct. 1526 (1994). The Alaska Supreme Court has adopted the same
standard. Hunter v. State, 590 P.2d 888, 892, 895 (Alaska 1979).
In keeping with Hunter, this court has consistently applied the
objective test. Edwards v. State, 842 P.2d 1281, 1284 (Alaska
App. 1992); Long v. State, 837 P.2d 737, 740 (Alaska App. 1992).
Under the objective standard, the existence of custody
turns not on any single factor such as the intent or
understanding of the accused, but rather on the totality of the
circumstances, objectively viewed.4 Carr v. State, 840 P.2d
1000, 1003 (Alaska App. 1992). As this court recently observed
in Long, 837 P.2d at 742:
[T]he issue of custody is not resolved
by . . . finding that Long had subjectively
believed himself free to disregard [the
officer's] wishes. Instead, the question is
whether a reasonable person in Long's
position would have felt free to choose
whether or not to accompany [the officer].5
Resolution of Higgins' motion to suppress should thus
have been governed by the objective test, under which the
superior court expressly found that Higgins' interrogation was
custodial. The trial court erred in resolving Higgins' motion on
the basis of a subjective test of custody.
The state nevertheless argues that the superior court's
finding of custody under an objective standard was clearly
erroneous. In asserting clear error, however, the state presses
its own interpretation of the factual record, largely
disregarding the interpretation adopted by Judge Souter -- an
interpretation based on the judge's personal evaluation of the
testimony at the evidentiary hearing and of Van Gelder's tape-
recorded interview of Higgins.
In Moss v. State, 823 P.2d 671 (Alaska App. 1991), we
considered a roughly analogous situation. Several uniformed
police officers, with guns drawn, forcefully entered Moss'
residence and proceeded to execute a search warrant for drugs.
The officers maintained control over the residence and its
occupants as they performed the search. In this setting, Moss
was questioned without Miranda warnings. The trial court found
that no custodial interrogation had occurred.
This court reversed, concluding that the trial court
was clearly erroneous in failing to find custodial
interrogation. Id. at 675. We observed that, when the police
forcefully enter a home to execute a warrant, "the force tends to
establish custody." Id. at 674. We went on to emphasize that,
after entering, the police maintained control of the premises and
subjected Moss to extensive questioning. Although the police had
told Moss that he was not under arrest, we concluded that "Moss
was deprived of his freedom of action in a significant way." Id.
The state maintains that the evidence of custody is
weaker here than it was in Moss. This argument falls short of
the mark. In Moss, we thought the evidence of custody so strong
that we declared the trial court clearly erroneous in declining
to find Miranda custody. By contrast, in the present case, we
must uphold the trial court's finding of custody unless we find
the evidence so weak that the finding of custody would
necessarily amount to clear error. While the evidence in the
present case certainly appears to be somewhat weaker on the issue
of custody than it was in Moss, our review of the record
convinces us that reasonable judges could differ on whether
custodial interrogation was objectively shown.6 Although another
judge might reasonably have construed the evidence to establish
that Higgins was not in custody, we are unprepared to say that
Judge Souter was clearly erroneous in finding, under the
objective test, that Higgins was in Miranda custody during her
interrogation. Accordingly, we conclude that the trial court's
order denying Higgins' motion to suppress must be reversed.7
1. See Cooksey v. State, 524 P.2d 1251, 1256-57 (Alaska
1974). See also Oveson v. Anchorage, 574 P.2d 801, 803 n.4
2. Miranda v. Arizona, 384 U.S. 436 (1966).
3. On reconsideration, Judge Souter qualified this ruling
to a certain extent, explaining that the defendant's subjective
belief that she was not in custody would prevail over the
objective circumstances as they would have appeared to a
reasonable person in the defendant's position, provided that an
objective person viewing the situation from a detached and
uninvolved standpoint -- that is, from the position of a judge
reviewing the situation in retrospect -- would also conclude that
the situation was not custodial. Judge Souter concluded, based
on Van Gelder's repeated admonitions that Higgins was not under
arrest and was free to leave, that a neutral and detached
observer would not have believed that Higgins was in custody,
even though a reasonable person in Higgins' position would have
thought the situation custodial.
4. This is not to say that the accused's state of mind is
to be wholly ignored. What is relevant is the totality of the
evidence bearing on "the objectively manifested circumstances of
the interview." Long, 837 P.2d at 740. Just as no single factor
can be determinative, so no relevant factor should be ignored.
To the extent that the accused's subjective beliefs may have
inferential bearing on the issue of what a reasonable person in
the accused's place might have believed, consideration of such
evidence is permissible for this limited purpose. See, e.g.,
Doyle v. State, 633 P.2d 306, 310 (Alaska App. 1981) ("It is also
significant to note that [the interrogated subject] himself
apparently felt that he could terminate the police contact[.]").
In the present case, despite his express finding that Higgins
subjectively believed she was not in custody, Judge Souter
determined that a reasonable person in Higgins' position would
have concluded otherwise.
5. See also State v. Sampson, 808 P.2d 1100 (Utah App.
The state cites testimony to the effect
that defendant did not consider himself under
arrest even after he was formally arrested,
suggesting this demonstrates that defendant
could not have believed he was in custody
when he first confessed. This evidence is at
most a commentary on defendant's acumen.
Under the objective "reasonable person" test,
defendant's subjective belief about custody
is not relevant.
Id. at 1106 n.11 (citing Berkemer v. McCarty, 468 U.S. at 442).
The trial court evidently reasoned that application of
an objective standard of custody makes no sense if the accused is
shown to have subjectively believed that custody was lacking.
However, two rationales have commonly been advanced to support
the use of the objective standard over the subjective: (1) the
undesirability of rules requiring police officers to make
decisions "in terms of what someone else is thinking," and (2)
the inherent unreliability of after-the-fact efforts to determine
the subjective states of mind of the participants in an
interrogation. 1 Wayne R. LaFave & Jerold H. Israel, Criminal
Procedure 6.6(c), at 491-92 (1984). These rationales would
seem to militate against the use of a subjective standard of
custody in all cases, regardless of whether a particular suspect
appears to have believed in the existence or nonexistence of
6. By way of comparison, in Peterson v. State, 813 P.2d
685 (Alaska App. 1991), Peterson was caught selling drugs to an
undercover officer. An interview occurred in Peterson's home
after he was advised that he was not under arrest and would not
be arrested. The police entry was by invitation and no force was
used. Peterson was questioned in a friendly manner during a
forty-five minute period. His family was at home at the time,
and Peterson freely interrupted the interview to converse with
family members. We concluded in Peterson that the trial court
was not clearly erroneous in finding that Peterson was not in
Miranda custody when questioned. Id. at 691. The facts in
Peterson were plainly more favorable to the state than those in
either the present case or Moss. On balance, the present case
appears to fall somewhere between Moss and Peterson.
7. Our disposition of this issue makes it unnecessary to
consider whether Higgins' confession was voluntary.