Saturday, January 05, 2013

Person being questioned about drugs with several officers present in custody

Thomas D. Addair won in State v. Olea. No. 107,540 (Kan. App. Dec. 14, 2012)(unpublished), affirming Judge Segerra's suppression order in a Geary County drug prosecution.  The case involved statements made by Mr. Olea after officers failed to provide Miranda warnings.  At preliminary hearing, Officer Peirano testified that he gave Mr. Olea two choices:  he could be arrested or he could cooperate and help work off charges.  At trial, the officer changed that testimony somewhat.  The main issue on appeal was whether Mr. Olea was in custody.  The COA agreed with Judge Segerra's conclusion that he was:
We conclude Olea was in custody. When Olea returned home, Peirano was speaking to Saenz about the use or sale of marijuana from the home. Two other officers positioned themselves outside the home, though the facts do not make clear whether Olea took notice of the officers. Regardless, Peirano told Olea about his investigation to date. At this point, Olea was not in custody. Olea, however, then gave Peirano two bags of marijuana from a nearby table. This was certainly an odd if not unsolicited response to Peirano's question.
The subsequent events, however, then convert this encounter into a custodial interrogation. Peirano asked Olea if he could search his home for illegal drugs, and when Olea hesitated, Peirano told Olea he could apply for a search warrant but would appreciate his cooperation. Arguably, a reasonable person would not have felt himself free to leave or terminate the interview at this point.
Even still, Olea took Peirano to his bedroom and gave him three bags of marijuana. Brown, a fourth police officer and the second officer positioned inside the home, then entered the bedroom and stood by the doorway. Maybe the officer blocked the doorway; maybe he did not. But regardless, this is an additional showing of authority that would suggest Olea was in custody. Olea and Peirano then spoke to each other about what would happen next. Although the evidence more strongly supports Peirano's recollection of the conversation at the suppression rather than the preliminary hearing, the district court made a credibility judgment in adopting the preliminary hearing testimony as fact. Peirano then told Olea he thought the three individually wrapped bags of marijuana were for sale rather than for personal use. By this point, Olea was in custody but had not received his Miranda warnings. He then incriminated himself by admitting he intended to sell the three bags of marijuana.
As a result, the COA affirmed Judge Segerra's suppression of Mr. Olea's incriminating statements.
[Update: the state did not file a PR and the mandate issued on January 17, 2013.]

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