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Handcuffs don’t equal ‘custody’

If you have cocaine in your pocket, and a police officer tells you that you are free to go, it’s not a good idea to start swearing at the officer.

Yet, on Oct. 9, 2004, that’s just what Tanya Marten-Hoye did on State Street in Madison. Fortunately for her, the Court of Appeals on Jan. 24 held the ensuing search of Marten-Hoye unlawful, and reversed her drug conviction.

In 2004, Madison Police Officer Gloria Ben-Ami and her partner were on patrol, and approached Marten-Hoye to ensure that she was not violating Madison’s curfew ordinance. After determining that Marten-Hoye was not subject to the curfew based on her age, Ben-Ami told Marten-Hoye that she was free to leave.

Open Mouth

Marten-Hoye then walked away from Ben-Ami and crossed the street. As she did so, she began swearing at the officer.

Ben-Ami then re-approached Marten-Hoye, told her she was under arrest for disorderly conduct, placed her in handcuffs, and told her she would receive a city ordinance violation and then be released if she continued to be cooperative. As Ben-Ami’s partner began filling out a city ordinance violation citation for Marten-Hoye, Ben-Ami searched Marten-Hoye and discovered the cocaine.

Marten-Hoye was charged with disorderly conduct and possession of cocaine with intent to deliver, and moved to suppress the evidence. Dane County Circuit Court Judge Richard G. Niess denied the motion, and Marten-Hoye appealed.

Unlawful Search

In an opinion by Judge Charles P. Dykman, the state Court of Appeals reversed the cocaine conviction, holding that the search was unlawful. Judge Margaret J. Vergeront dissented.

The majority agreed with Marten-Hoye that, pursuant to Knowles v. Iowa, 525 U.S. 113 (1998), the search was unconstitutional, because it was a search incident to the issuance of a citation, rather than a search incident to arrest.

While police may search a person without a warrant incident to arrest, the U.S. Supreme Court declined in Knowles to extend the exception to searches incident to issuance of a citation. Although the officer in Knowles had statutory authority to arrest the defendant, for speeding, he only issued a citation. Thus, the subsequent search of the car was suppressed.

In Marten-Hoye’s case, the Court of Appeals found Knowles indistinguishable. Although the officers could have arrested her for disorderly conduct, they chose instead to issue a citation; therefore, they could not conduct a search incident to arrest.

The State argued that, by handcuffing Marten-Hoye, they did place her under arrest, and therefore the search was lawful. However, the court concluded that a reasonable person in Marten-Hoye’s position would not have considered herself “in custody.”

Free To Go

The court noted that, although Ben-Ami told Marten-Hoye she was under arrest, she also told her that she would only be issued a citation and would be free to go, if she was cooperative. In addition, although Marten-Hoye was handcuffed, she was never placed in the squad car; instead the entire interaction occurred in public.

The court concluded, “Although the statements by Ben-Ami are contradictory, we conclude that the assurance by Ben-Ami that Marten-Hoye would be issued a citation and released would lead a reasonable person to believe he or she was not in custody, notwithstanding the early statement that he or she was ‘under arrest.’”

Addressing the handcuffs, the court found that she was placed in cuffs because she was loud and uttering profanities, rather than because she was being placed in custody.
Accordingly, the court reversed the conviction for possession of cocaine, but affirmed the conviction for disorderly conduct.

Judge Vergeront dissented, concluding that a reasonable person placed in handcuffs would consider herself to be in custody. Vergeront concluded that, because the officers had probable cause to arrest her for disorderly conduct, the subsequent search was a lawful search incident to arrest, and the motion to suppress the cocaine was properly denied by the circuit court.

Case analysis

The Wisconsin Supreme Court has already declined to consider this case once. The Court of Appeals certified the case last year, but the Supreme Court denied certification.
Nevertheless, it could be a good candidate for review, inasmuch as the issue — when handcuffing constitutes custody — is an important one that arises frequently. Still, this case may not be the best vehicle for addressing the question, because the case arises in the Fourth Amendment context.

Usually, when this issue arises, it does so in the context of the Fifth Amendment: an officer handcuffs someone, but does not read him his Miranda rights; the defendant says something he later regrets. In court, the defendant claims he was in custody as soon as he was cuffed; and the State argues he was not in custody, so Miranda doesn’t apply.
Sometimes, a search of the person occurs, but the issue is usually whether the search was legal as a Terry frisk, not whether it was lawful search incident to arrest, or an unlawful search incident to issuance of a citation.

It is established law, both in Wisconsin and federal courts, that a person is not in custody per se, just because he has been handcuffed; instead the totality of circumstances test applies. State v. Swanson, 164 Wis.2d 437, 448, 475 N.W.2d 148 (1991), abrogated on other grounds by State v. Sykes, 2005 WI 48; U.S. v. Glenna, 878 F.2d 967, 972 (7th Cir. 1989).

In several cases since Swanson, the Court of Appeals has held in unpublished opinions that a person was not in custody, even though he was handcuffed. County of Dodge v. Harned, 203 Wis.2d 273, 551 N.W.2d 871 (Table), 1996 WL 316782 (Ct.App., June 13, 1996); State v. Harris, 243 Wis.2d 116, 627 N.W.2d 548 (Table), 2001 WL 253843 (Ct.App., Mar. 15, 2001); State v. Neumeyer, 257 Wis.2d 938, 652 N.W.2d 133 (Table), 2002 WL 1870306 (Ct.App., Aug. 15, 2002).

In those cases, the officer told the persons that they were not under arrest, but were only being handcuffed for safety purposes. Thus, the court concluded a reasonable person would not consider themselves under arrest.

What makes Marten-Hoye’s case, and any case involving the Fourth Amendment, problematic, is that the Fifth Amendment cases frequently consider whether the defendant was searched as a factor in deciding whether or not the person was in custody.

Thus, in U.S. v. Smith, 3 F.3d 1088, 1097 (7th Cir. 1993), the Seventh Circuit held that where the defendant was handcuffed and frisked, he was in custody. Similarly, in State v. Green, 207 Wis.2d 645, 559 N.W.2d 925 (Table), 1996 WL 722827(unpublished) (Ct.App., Dec. 17, 1996), the court of appeals held that where the defendant was handcuffed, frisked, and questioned, he was in custody.

Thus, one could agree with the majority of the court of appeals in the case at bar — Marten-Hoye was not in custody before the search — and ample case law supports that, albeit much of it unpublished.

However, one could also conclude that, once the search occurred, the combination of the handcuffing and the search meant she was in custody immediately after the search (or possibly at some point during the search), and cite case law to support that.
Suppose, in the case at bar, the officer discovered nothing during the search
, but Marten-Hoye made incriminating statements afterwards. Under the reasoning in Smith and Green, she would likely be deemed in custody and the statements would have to be suppressed, because she was not given Miranda warnings; at the same time, the search would be unlawful, because, when it occurred, she was not yet in custody.

The case at bar presents an additional wrinkle in that the defendant is arguing that she was not in custody, and the State is arguing that she was. In most cases involving whether a person is in custody, it is the State who contends that the defendant was not yet in custody, while the defendant argues that she was (triggering Miranda).
The Court of Appeals notes this anomaly in footnote 9 of its opinion, but concludes that the test of when a person is in custody is no different, regardless of which party contends what. The court’s conclusion is correct; nevertheless, the highly unusual twist is one more aberration in this case that may make the case an awkward vehicle for the Supreme Court to offer guidance in future cases.

As a policy matter, the last thing the attorney general’s office would want to do is argue to the Supreme Court is that the court should adopt a broad definition of “in custody.”
“There is a widespread public misperception, particularly among the New Age sector, that the Chinese word for ‘crisis’ is composed of elements that signify ‘danger’ and ‘opportunity,’” Victor H. Mair wrote in his essay “‘Danger’ Plus ‘Opportunity’ Does Not Equal ‘Crisis’: How a misunderstanding about Chinese characters has led many astray.” (Jan. 29, 2007).
In this case, however, the public misperception seems apt. This case would offer the Supreme Court an excellent opportunity to clarify the relationship of handcuffing a person to custody; it would also present a real danger of muddling the law.

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