No Custody from Polite Questioning in a Public Place

by | January 27, 2023

United States v. Leggette, 2023 WL 139321(4th Cir. 2023)

Dwayne Leggette and Deborah Marshall were trespassing in a public park after hours. When Officer Rochelle saw their car, he got out of his patrol car to investigate. Leggette and Marshall began to walk toward the car and Officer Rochelle. A backup officer arrived and discovered a gun inside a bag abandoned in a nearby trash can. Officer Rochelle frisked Leggette and questioned him about the gun. During a 90-second exchange, Officer Rochelle asked Leggette about the gun three times. The first two times, Leggette denied the gun was his, although he did volunteer that he “just did 15 years.” Officer Rochelle challenged Leggette and told him honesty would “go a long way.” When Officer Rochelle again asked about the gun, Leggette said the gun was his and claimed it was for protection.

Officer Rochelle arrested Leggette and took him to the detention center. Officer Rochelle read the Miranda rights admonition to Leggette. Leggette said he understood his rights, agreed to speak and again admitted the gun was his. Charged with a gun crime, Leggette asked the court to suppress his statements. He claimed he was “in custody” when Officer Rochelle first questioned him and that he should have had a Miranda warning prior to questioning in the park. The court disagreed. Leggette was convicted and sentenced to another 15-year term.

The Miranda rule applies only when there is both custody and interrogation. If a suspect is not in “custody,” no Miranda rules ever apply. The Supreme Court has concluded that, while a person might not be free to leave, they may also not be in custody under Miranda, such as in a common traffic stop: “An individual is in custody for Miranda purposes when, under the totality of the circumstances, a suspect’s freedom of action is curtailed to a degree associated with formal arrest” (Berkemer v. McCarty, 468 U.S. 420 (1984)).

The appellate court held that Leggette, while not free to leave, was not in custody when Officer Rochelle first questioned him in the park.

To determine whether a suspect was in custody, courts consider several factors (Thompson v. Keohane, 516 U.S. 99 (1995)). First, was there a formal arrest? Second, would a reasonable person have felt he or she was not free to end the questioning and walk away? Third, was the suspect’s movement restrained or curtailed to the degree associated with a formal arrest? The custody determination is measured objectively by looking at these factors. Neither the officer’s nor the suspect’s subjective belief about custody figure significantly in the analysis (Stansbury v. California, 511 U.S. 318 (1994)).

The appellate court held that Leggette, while not free to leave, was not in custody when Officer Rochelle first questioned him in the park. The court observed that only one officer questioned Leggette; Marshall was at Leggette’s side during the brief questioning; Officer Rochelle asked only a handful of questions, focused on ownership of the gun in the trash can; Officer Rochelle never drew his gun and did not physically restrain Leggette or even touch him (other than the brief frisk); and importantly, the court found Officer Rochelle’s questions were asked in a “polite” tone of voice.

Leggette argued the repeated question about the gun ownership, the potential of being arrested for trespassing and the dark park setting combined to create a custodial environment akin to a custodial arrest that would require a Miranda warning. The court disagreed. An interrogation is not more coercive simply because the officer encourages the suspect’s cooperation, even if the officer promises some benefit if the suspect admits to a crime. Though the park was dark, Leggette was not separated from Marshall and was still in a public place. The mere fact there was probable cause for a trespassing arrest did not create custody. “Taking all this together,” the court noted, “we conclude that this was not a custodial interrogation.” Once again, “talk nice, think mean” works!

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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