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COA: driver ordered out of car and interrogated wasn’t in Miranda custody

State v. Traci Busha, 2018AP1863, 8/20/19, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)

Ms. Busha’s car was stuck in a ditch on the outskirts of Superior. A responding police officer found her alone in the passenger seat. She had been drinking but said she hadn’t been driving; her boyfriend “Scott” had been. For various reasons the officer didn’t buy her story. After about 15 minutes, while a tow truck was en route, the officer told her to get out of the car and stand by his vehicle. At this point, he told her he didn’t believe her account and said it was time to tell the truth. She admitted to driving.

Busha argued that the officer’s exercise of authority over her amounted to Miranda custody, such that he should have given her warnings before questioning her. She relied on a federal case, United States v. Richardson, 700 F. Supp. 2d 1040 (N.D. Ind. 2010), aff’d, 657 F.3d 521 (7th Cir. 2011). The court distinguishes the case:

In Richardson, an officer stopped the defendant’s vehicle for speeding. Id. at 1044. The defendant and his passenger acted nervous during the stop, and when the officer returned to his vehicle to perform a license check, he saw them moving around inside their vehicle and looking back at him. Id. at 1044-45. The officer then called for backup. Id. at 1045. After two additional officers arrived at the scene, a canine drug sniff was performed, during which the dog alerted at both the driver’s side and passenger side doors of the defendant’s vehicle. Id. The first officer then told the vehicle’s occupants that he had probable cause to search the vehicle and asked them to get out. Id. After the defendant exited the vehicle, the officer conducted a pat-down search of his outer clothing. Id. During the search, the officer discovered a bag containing a white rock-like substance in the defendant’s pocket. Id. The officer asked the defendant what the substance was, and the defendant replied, “[Y]ou know what it is.” Id. The district court concluded the defendant was in custody when he made that statement because “[n]o reasonable person in [the defendant’s] place would have felt free to leave from the instant [the officer] pulled the drugs from [the defendant’s] pocket.” Id. at 1053.

Busha argues Richardson is on point because, like the defendant in that case, she was told to exit her vehicle, multiple police officers were present at the scene, and Gothner clearly communicated that he suspected her of committing a crime. In Richardson, however, there were additional factors that supported a conclusion the defendant was in custody. Specifically, the defendant’s vehicle was stopped by police, a drug sniff was performed, the officer informed the defendant that there was probable cause to search his vehicle, and the defendant was subjected to a pat-down search. None of these additional factors are present in Busha’s case. Their absence supports a determination that—unlike the defendant in Richardson—Busha was not in custody at the time she made the incriminating statements.

(¶¶25-26).

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