16 NICS App. 10, SOUTHERN UTE v. PENA (March 2018)

IN THE SOUTHERN UTE TRIBAL COURT OF APPEALS

SOUTHERN UTE INDIAN RESERVATION

IGNACIO, COLORADO

Southern Ute Tribe, Petitioner/Appellant,

v.

Marisero Kes Pena, Respondent/Appellee.

NO.    17-APP-160 (March 26, 2018)

SYLLABUS^*

Tribe sought review of trial court’s order suppressing evidence police gathered during search of defendant. Court of Appeals affirmed the trial court’s ruling as the search was not justified by tribe’s probable cause standard and remanded for further proceedings related to issues surrounding defendant’s statements to police.

Before:	Eric Nielsen, Chief Judge; Richard A. Woodrow, Judge; Thomas Weathers, Judge.
Appearances:	Benjamin Lammons, for Petitioner; Timothy A. Heydinger, for Respondent.

OPINION

Nielsen, C.J.:

This matter is an interlocutory appeal filed by the Tribe on December 22, 2017. The Tribe seeks review of the trial court’s December 14, 2017 written suppression order. The Tribe’s notice is timely and reviewable. Southern Ute Tribal Code (S.U.T.C.) 3-1-102(4). We affirm the court’s ruling suppressing evidence police seized from Marisero Pena. We remand for further proceedings related to the issues surrounding Pena’s statements to police.

FACTS

Early in the afternoon on July 29, 2017, Southern Ute tribal police Officer Mark Kempinski responded to the scene of a one-car accident. Officer Kempinski discovered the car

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was registered to Pena and a woman, Jolene Cantsee. Officer Kempinski knew Pena’s driver’s license was revoked.

La Plata County Deputy Sheriff Cody Rieb was headed to the scene of the accident when he saw Pena walking on the road about 1.5 miles from the accident scene. Pena appeared confused so Deputy Rieb turned his patrol car around and pulled up next to Pena to determine if Pena needed assistance. Because Deputy Rieb noticed Pena’s face was bleeding and he smelled alcohol he asked Pena if he needed medical help. Although Pena said he did not need help Deputy Rieb was still concerned. He asked Pena to step back and Deputy Rieb pulled his car off the road in front of Pena.

While Officer Kempinski was investigating the accident, a motorist driving by told Officer Kempinski that there was a “shady” person walking down the road wearing a jump suit. Officer Kempinski left to follow-up on that information. A few minutes later Officer Kempinski saw Deputy Rieb and Pena on the side of the road. Officer Kempinski parked his patrol car behind where Pena was standing. Officer Kempinski recognized Pena and Pena’s clothing matched what the motorist had told Officer Kempinski the man he saw was wearing.

Both Deputy Rieb and Officer Kempinski then got out of their patrol cars and approached Pena from opposite directions. Officer Kempinski almost immediately patted Pena down and removed keys from Pena’s pocket. It is unclear whether Pena made any statements to Officer Kempinski before the pat down. The Officers also asked Pena to lift his shirt. They saw marks across Pena’s chest consistent with where a seat belt would have secured a driver. It is unclear whether Pena was asked to lift his shirt before or after the pat down.

After searching Pena, Officer Kempinski began questioning him. Officer Kempinski asked Pena why he had left the scene of an accident, why his lip was bleeding and other questions related to his appearance and alcohol consumption. Based on Pena’s responses, Pena was handcuffed and placed in the back of Officer Kempinski’s patrol car. Officer Kempinski testified that it is Southern Ute Police Department policy to restrain all passengers riding in a patrol car. Officer Kempinski testified he never advised Pena of his “Miranda¹ rights” because he did not arrest Pena.

Officer Kempinski then drove to a house where he interviewed Cantsee while Pena sat in the car. Officer Kempinski testified he then had Pena perform some field sobriety tests. Pena was formally arrested.

DECISION

The trial court’s December 14, 2017 order suppressed any evidence seized from Pena during the search and “any evidence gathered” after Pena was handcuffed and placed in the patrol car. Order at 6. The Tribe reads the order as suppressing Deputy Rieb's initial

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observations of Pena’s injuries, the keys removed from Pena’s pocket, and any statements Cantsee made to Officer Kempinski. It contends the court erroneously suppressed this evidence.

We affirm the ruling suppressing evidence from the search but for reasons we explain below, we remand for further proceedings.

This Court will not disturb the trial courts findings of fact unless the findings are clearly erroneous. S.U.T.C. 3-1-112. This Court reviews the trial court’s conclusions of law de novo.² Southern Ute Tribe v. Henry, 15 NICS App. 35, 37 (2017).

b. Search

Under federal law it is a general rule that warrantless searches and seizures are per se unreasonable in violation of the Fourth Amendment to the United States Constitution. Arizona v. Gant, 556 U.S. 332, 338  (2009) (citing Katz v. United States, 389 U.S. 347, 357 (1967). There are several narrowly drawn exceptions to that rule. One exception to the warrant requirement is the so-called Terry stop and frisk first articulated by the Supreme Court in Terry v. Ohio, 392 U.S. 1, 27 (1968). That exception allows an officer to conduct a limited pat-down of the outer clothing of a person to discover weapons that could cause harm. Id. at 30–31. This protective frisk is justified “when an officer can point to specific and articulable facts, which create an objectively reasonable belief that a suspect is armed and presently dangerous.”  Terry, 392 U.S. at 21–24. The purpose of this limited search is not to discover evidence of a crime, but to allow the officer to pursue his investigation without fear. Adams v. Williams, 407 U.S. 143, 145–46 (1972).

Generally, “The provisions of the Constitution of the United States have no application to Indian nations or their governments....” Groundhog v. Keeler, 442 F.2d 674, 681 (10th Cir.1971)) “As separate sovereigns pre-existing the Constitution, tribes have historically been regarded as unconstrained by those constitutional provisions framed specifically as limitations on federal or state authority.” Santa Clara Pueblo v. Martinez 436 U.S. 49, 56, (1978). The language of the Indian Civil Rights Act (ICRA), however, parallels the language in the Fourth Amendment.³ It provides that “(n)o Indian tribe in exercising powers of self-government shall

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… violate the right of the people to be secure in their persons, houses, papers, and effects against unreasonable search and seizures.” 25 U.S.C. §1302(2).

The Tribe enacted S.U.T.C. 4-1-113. That code provision reads in relevant part that “No tribal law enforcement officer shall conduct any search without a valid warrant” except when the officer “has probable cause to believe the person searched may be armed and dangerous.” S.U.T.C. 4-1-113(1)(c). The plain language in that code carves out an exception to the code’s warrant requirement like the Terry exception to the warrant requirement in the Fourth Amendment. But, unlike the Terry exception, which allows an officer to search the outer clothing of a person to discover weapons where the officer has a “reasonable” belief that a suspect is armed and presently dangerous, S.U.T.C. 4-1-113 requires the officer have “probable cause” the person may be armed and dangerous.

We need not decide whether Southern Ute law requiring the officer have “probable cause” as opposed to a “reasonable belief” is more protective of a person’s privacy right than federal law or the ICRA. Officer Kempinski did not articulate, nor do the facts support, an objective reason to reasonably believe Pena was armed and dangerous. The court found that “Neither Officer testified that either Officer was afraid for their safety or suspected Mr. Pena of having weapons at the time he was patted down…” Order at 6. The evidence supports that finding. The search was not justified under either the Terry “reasonable belief” standard or the Tribe’s probable cause standard. Thus, it violated S.U.T.C. 4-1-113. The court’s ruling suppressing any evidence “gathered during” the search is affirmed.

The Tribe also reads the court’s order to suppress the observations of Pena’s injuries made by Deputy Rieb and Officer Kempinski. We do not agree with that reading. But because the court failed to identify what evidence it suppressed we address the Tribe’s contention. There is no rational or legal reason to suppress observations of Pena’s demeanor or physical characteristics (i.e. injuries) exposed in plain view. If the court intended to suppress that evidence, as the Tribe contends, that part of its ruling is reversed.

However, the officers did not see the injury to Pena’s chest until Pena lifted his shirt. Because there was no objective reason for Kempinski to believe Pena was armed, asking Pena to lift shirt was simply to seek evidence that Pena was involved in the accident. See Eppsv. State, 193 Md. App. 687, 704–05, 1 A. 3d 488 (2010) (when there is no objective reason to believe a person is armed, asking defendant to lift shirt is beyond the scope a Terry frisk, which is to discover the presence of suspected offensive weapons and not to discover the presence of evidence). The request that Pena lift his shirt, under the circumstances in this case, was an impermissible search and evidence of the injuries to Pena’s chest is inadmissible.

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c. Statements

Before a person is questioned by police, tribal law requires that police advise a person who is in custody of his or her right to remain silent, right to counsel, and right end any questioning.

Before any person who is in custody is questioned or in any manner interrogated concerning any possible criminal activity committed by that person, he shall be advised of the following rights:

A. He has the right to remain silent and anything he says can and may be used against him;

S.U.T.C. 4-1-104(2)(c)(i); see Henry, 15 NICS at 38-39 (these rights are similar to the Miranda rights and like the rule enunciated in Miranda, a person must be advised of these rights before any custodial interrogation).

In United States v. Patane, 542 U.S. 630 (2004), police officers seized a gun after the defendant, in response to custodial questioning without a Miranda warning, disclosed the gun's location and gave the officers permission to retrieve it. Id. at 635 (plurality opinion). The Court held that physical evidence that is the fruit of a voluntary statement should not be suppressed even if the statement was elicited without a Miranda warning. Id. at 642-643.

The Tribe’s code, however, provides that “Any evidence which is obtained either directly or indirectly as a result of any custodial interrogation which is not preceded by the advisement of rights set forth above in Section 4-1-104(2)(a)(1)⁵ above shall be suppressed by the Court upon filing of a motion to suppress said evidence.” S.U.T.C. 4-1-104(2)(c)(ii) (emphasis added). Unlike the federal rule, the plain language of the code requires “any evidence,” and not just the statements, be suppressed if that evidence was obtained “directly or indirectly” from a custodial interrogation not proceeded by the advisement of the 4-1-104(2)(c)(i) rights.

When Officer Kempinski contacted Pena he immediately searched Pena and began questioning him. Officer Kempinski did not advise Pena of the rights codified in S.U.T.C. 4-1-104(2)(c)(ii). But the advisement of those rights was only required if Pena was in “custody.”

In Henry, we held advisement of the rights is mandatory when a person is subjected to a custodial interrogation. Henry, 15 NICS App. at 40. It was unnecessary for us to address what constitutes a “custodial interrogation” to resolve the issues in Henry. We have not found nor do the parties cite any Southern Ute Tribe appellate cases or code that defines when a person who

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has not been formally arrested is in “custody” for purposes of triggering the S.U.T.C. 4-1-104 advisement of rights before questioning by police.

The United States Supreme Court has held that the Fifth Amendment of the United States Constitution requires that before police conduct a custodial interrogation the person must be advised of the similar Miranda rights. Miranda, 384 U.S. at 467. Thus, we look to the application of the Miranda rule in other jurisdictions to guide our analysis. See S.U.T.C. 3-1-118 (“Where not contrary to tribal or applicable federal law, the Court of Appeals may consider state and federal law as persuasive authority.”).

The Miranda Court defined custodial interrogation as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda, 384 U.S. at 444. When no formal arrest occurs, the relevant inquiry is whether a reasonable person would have felt at liberty to leave. Thompson v. Keohane, 516 U.S. 99, 112 (1995). In making that determination a court must look to the totality of the circumstances under which the questioning occurred. Stansbury v. California, 511 U.S. 318, 322 (1994); United States v. Craighead, 539 F.3d 1073, 1082 (9th Cir.2008); People v. Horn, 790 P.2d 816 (Colo.1990). Under that test a court may consider many factors, but no single factor is determinative. See People v. Minjarez, 81 P.3d 348, 353 (Colo. 2003). Every case must be analyzed on its own facts. State v. Schultz, 289 Kan. 334, 341, 212 P.3d 150 (2009).

We find the principles enunciated in the above cites cases relevant to a determination of whether a person is in “custody” under S.U.T.C. 4-1-104(2)(c)(ii). We hold that absent a formal arrest, a person is in “custody” if a reasonable person would not have felt at liberty to leave. Because each situation is unique, we decline to adopt a mechanistic formula or a list of factors the court must consider. The record, however, must show the that the trial court considered the totality of the circumstances, what factors informed its decisions, and the weight it gave to those factors.

In this case in the court’s order under the heading of “FINDINGS” reads:

1. The Court finds that a reasonable person would not have felt free to leave in this particular situation, and Mr. Pena was clearly under arrest and in custody at the time of being handcuffed and placed in the patrol car.

2. The Court finds the Defendant was not advised at any time of his rights within the Code, which makes it clear that this should be done before any type of questioning or interrogation about any criminal activity begins, while a person is in custody (regardless of the location of custody). In this case the Defendant was detained and clearly in the custody of law enforcement at the time of questioning, and should have been advised of such rights. Here Mr. Pena was not.

3. The Court finds a proper advisement must be given when a person is in the custody of law enforcement and has had his freedom restricted.

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4. For the above findings, evidence, testimony, and law the Court finds that the Tribe did not properly advise the Defendant of his rights regardless of the type of detainment when he was placed in handcuffs and placed in a patrol vehicle and then kept there.

December 14, 2017, Order at 6.

It ultimately ruled: “THE COURT THEREFORE GRANTS THE DEFENDANT'S [Pena’s] MOTION TO SUPPRESS ANY EVIDENCE GATHERED DURING A SEARCH OF HIS PERSON, AND AFTER THE SOUTHERN UTE POLICE OFFICER DETAINED THE DEFENDANT, PLACED HIM IN HANDCUFFS AND PUT HIM IN THE PATROL CAR WITHOUT THEN ADVISING HIM OF HIS RIGHTS” (emphasis added). Order at 6.

The court’s “findings” read more like conclusions of law than factual findings. Because the court does not make any clear factual findings regarding the circumstances surrounding Pena’s statements, it is unclear when the court found Pena in custody to trigger the requirement that Officer Kempinski advise Pena of his rights.⁵

We agree with the trial court’s conclusion that at the point Pena was handcuffed and placed in the patrol he was in “custody” and the advisement of rights was required before any questioning. See United States v. Henley, 984 F.2d 1040, 1042 (9th Cir.1993) (suspect in custody when handcuffed); United States v. Sangineto–Miranda, 859 F.2d 1501, 1515 (6th Cir.1988) (suspect was in custody when he was handcuffed and placed in police car); United States v. Maguire, 359 F.3d 71, 79 (1st Cir.2004) (observing that handcuffs are considered “one of the most recognizable indicia of traditional arrest”). The closer question is whether Pena was in custody when Officer Kempinski questioned Pena before he handcuffed him and placed him in the patrol car. The totality of the circumstances suggest that he was.

The two officers arrived in patrol cars, were in uniform, and approached Pena from opposite directions on the side of the road. Pena was effectively hemmed in by a show of authority. Almost immediately Pena was searched, and his property (keys) taken from him. Pena was asked to lift his shirt revealing fresh injuries consistent with being the driver of a car involved in an accident and Officer Kempinski’s questions were related to the accident. See Stansbury v. California, 511 U.S. at 326 (explaining that a defendant's belief that he or she is a suspect in an investigation is relevant if it would have “affected how a reasonable person in that position would [have] perceive[d] his or her freedom to leave”).  “The critical inquiry is whether the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about [his] business.” United States v. Fox, 600 F.3d 1253, 1258 (10th Cir.2010) (quoting Florida v. Bostick, 501 U.S. 429, 437 (1991)). We find that

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under the totality of the circumstances at the point after Pena was searched and was questioned about the accident the court could justifiably conclude the officers conduct communicated to a reasonable person in Pena’s situation that he was not at liberty to ignore the officers and simply leave.

However, it is unclear if the court ruled Pena’s statements suppressed, and if so what statements (the record shows Pena made statements before the encounter turned custodial). It is also unclear what evidence that was “gathered” was suppressed and why, after Pena was handcuffed and placed in the patrol car.⁶ For example, if the court ordered evidence suppressed other than those statements Pena made at the point where he was in “custody” but not advised of his 4-1-104(2)(c)(ii) rights, the court does not explain if that evidence was suppressed because it was obtained “directly or indirectly” from those statements or for some other reason.

For these reasons we find the court’s order too vague for us to review whether the evidence the court ordered suppressed is legally justified under tribal law.⁷ Consequently, we remand for further proceedings. See, e.g., Neff v. Port Susan Camping Club, 8 NICS App. 32 (Tulalip Tribal Ct. App. 2007) (tribal court finding was not specific enough to support affirmance; case remanded). The court shall enter supplemental findings of fact and conclusions of law on the issues surrounding Pena’s statements to Officer Kempinski. The court’s findings and conclusions must specifically identify which statements (if any) to police it orders suppressed and what other evidence is suppressed. The court shall also set forth its reasons.⁸ The Tribe may file an interlocutory appeal from the order entered following remand if it wishes, and this court will review the issues raised in that appeal that have not been addressed in this opinion.

ORDER

The court’s ruling suppressing evidence seized from the defendant during the roadside search is affirmed. The case is remanded for further proceedings consistent with this opinion.

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The syllabus is not a part of the Court’s Opinion. The syllabus is a summary of the Opinion prepared by the publishers of this reporter only for the convenience of the reader. Therefore, the syllabus should not be cited in whole or part as legal authority. Only the Opinion, which follows the syllabus, may be cited as legal authority.

Miranda v. Arizona, 384 U.S. 436 (1966)

S.U.T.C. 3-1-112. Standard of Review.

In deciding an appeal, the Court of Appeals will apply the following standards:

(1) Factual findings

(a) Jury decisions will be sustained, unless no evidence in the record supports them.

(b) A finding of fact will be sustained unless clearly erroneous.

(2) A conclusion of law will be reviewed without deference to the Tribal Court’s determination;

(3) A matter within the discretion of the Tribal Court will be sustained if the record reflects that the Tribal Court exercised its discretionary authority, applied the appropriate legal standard to the facts, and did not abuse its discretion, even if an alternative decision could have been reached.

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized.” U.S.Const. Amend. IV.

We previously found that the code intended to refer to Section 4-1-104(2)(c)(i). Henry, 15 NICS App. at 39 n.4.

The following statements in the order exemplify the lack of clarity:

“Mr. Pena was clearly under arrest and in custody at the time of being handcuffed and placed in the patrol car.”

“In this case the Defendant was detained and clearly in the custody of law enforcement at the time of questioning and should have been advised of such rights [Miranda rights].”

“[T]he Tribe did not properly advise the Defendant of his rights regardless of the type of detainment when he was placed in handcuffs and placed in a patrol vehicle and then kept there.” Order at 6.

That other evidence may or may not include Ms. Cantsee's statements to police as the Tribe contends. It is unclear if the Tribe believes the court’s ruling suppressed her statements (which may raise confrontation or hearsay issues if an attempt was made to introduce those statements through witnesses) or whether it believes the court’s ruling prohibits Ms. Cantsee herself from testifying.

In his brief Pena concedes the scope of the court’s order is unclear. Br. at 4.

“The Court of Appeals may affirm, modify, or reverse the Tribal Court's decision in whole or in part, order a new trial, remand to the Tribal Court for further proceedings, or make any other ruling that appropriately disposes of the issues raised on appeal.” S.U.T.C. 3-1-113.