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Prioleau v. State , No. 40, September Term, 2008

CRIMINAL PROCEDURE; THE "FUNCTIONAL EQUIVALENT" OF CUSTO DIAL INTERROGATION: Custodial interrogation occurs when a suspect who has been arrested is asked questions by a law enf orcemen t officer that (1) are directed to the issue of whether the suspect has knowledge of and/or engaged in criminal activity, or (2) the law enforcement officer knows or should k now are reasonab ly likely to elicit an incriminating response. The functional equivalent of custodial interrogation occurs when a suspect who has been arrested is subjected to statements made by and/or actions taken by a law enforcement officer that the officer knows or should know are reaso nably like ly to elicit an incriminating response. Because it is not reasonable for a law enforcement officer to expect that uttering the words "What's up" would be likely to elicit an incriminating response from a susp ect in custody, the Petitioner was not subjected to custodial interrogation when he was greeted with the words, "What's up, Maurice?"

IN THE COURT OF APPEALS OF MARYLAND No. 40 September Term, 2008

MAURICE DARRYL PRIOLEAU v. STATE OF MARYLAND

Bell, C.J. Harrell Battaglia Greene Murphy Eldridge, John C. (Retired, Specially Assigned), Rake r, Irma S . (Retired , Specially Assigned), JJ.

Opinion by Murphy, J.

Filed: December 9, 2009

In the Circuit Court for Baltimore City, a jury convicted Maurice Darryl Prioleau, Petitioner, of conspiracy to distribute cocaine and several related violations of the Maryland C ontrolled D angerou s Substan ces Act. T he State's ev idence w as sufficien t to establish that he committed those offenses on March 28, 2005. Petitioner noted an appeal to the Court of Special Appeals, which affirmed the judgments in Prioleau v . State , 179 Md. App. 19, 943 A.2d 696 (2008). Petitioner then requested that this Court issue a writ of certiorari to address th e followin g question : Was the question "What's up, Maurice?" the functional equivalent of interrogation under all the circumstanc es of this case, where the question was posed by a police officer standing in the doorway of a stash house the suspect had been seen using, and was directed toward a handcuffed suspect who had just been arrested by another officer nearby and brought back to the stash house? That request was granted. 405 Md. 290, 950 A.2d 828 (2008). For the reasons that follow, we hold that the words at issue did not constitute the functional equivalent of custodial interrogation, and therefore affirm the judgment of the Court of Special Appeals. Background Detective Timothy Stach was the only witness who testified at the suppression hearing.1 The Court of Special Appeals provided the following summary of the

The pretrial motion for suppression, which was included in the "Omnibus PreTrial Defense Motions" filed on behalf of Petitioner and a co-defendant, asserted that "any statements or confession s taken from D efendant by police authorities w ere involuntary and elicited without observance of procedural safeguards required by law." Although that motion did "respectfully pray for ... [s]uppression of all statements and

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Detective' s testimony: On March 28, 2005, Baltimore City Police Detective Timothy Stach and his partner Officer Jenkins were conducting a covert surv eillance of th e 1600 b lock of R egester Stree t. Det. Stach testified that, at about 6:00 p.m., he observ ed an Acura automob ile pull to the cu rb. An ind ividual, whom the detective recognized as Mau rice Prioleau , [Petitioner], got out of the Acura an d jogged to 1614 R egester Stree t. Det. Stach watched as [Petitioner] took out a clear plastic bag and tossed it onto the fro nt steps of th e house a t that address. Det. Stach was using 10 by 50 binoculars at the time and could see small vials inside the plastic bag. The detective opined at the hearing as an exp ert in the packaging, distribution, and identification of controlled dangerous substances that the bag contained cocaine. Det. Stach saw [Petitioner] walk around the corner at the end of the block. The detective then saw a man, later identified as Keith Evans, walk up to the house at 1614 Regester S treet to retrieve the bag. Det. Stach watched Evans distribute the contents of the bag to several individuals who had followed him. Those individuals walked away after the transactions. Evans continued to pace Regester Street, distributing items from the bag to individuals who approached him. [Petitioner] appeared and walked with Evans south on Regester Street toward Federal Street. [Petitioner] turned onto Federal Street, while Evans co ntinued to d istribute the contents of the bag to additiona l individuals a long Reg ester Street. Det. Stach recalled that, at about 4:20 p.m., [Petitioner] returned. He entered 1610 Regester Street, and, after one minute, emerged with another bag of suspected cocaine. [Petitioner] gave the b ag to Evans, who resumed his routine of strolling back and forth on R egester Stree t, engaging in "hand-to-hand transactions" with individ uals who approached. Det. Stach alerted Officer David Crites, who was at the

confess ions take n fro m de fend ant b y State age nts[,]" it w as no t sup ported by a memorandum asserting that Petitioner had made an inculpatory statement after he had been su bjected to the "f unction al equiv alent" o f interro gation. 2

police station, that he believed he was witnessing "narcotics activity," and [Petitioner] and E vans were "working in tande m." Officer Crites responded to the scene, driving a marked police vehicle. Officer Crites saw Evans walking northbound towa rd the house at 1608 Regester Street and handing off the bag to an unknown person at that address. Officer Crites arrested Evans. Det. Stach and Officer Jenkin s emerged from their undercover observatio n position an d joined O fficer Crites . Det. Stach instructed Officer Crites to "go get [Petitioner]." Det. Stach then escorted Evans into the house at 1610 Regester Street. The detective testified that there were numerous torn clear plastic bags on the floor, indicating drug activity in the house. Meanwhile, Officer Crites located [Petitioner], arrested him, and placed him in the cruiser. Officer Crites then drove to the front of 1610 Regester Street and removed [Petitioner] from the vehicle. [Petitioner] was reluctant to move, so Officer Crites employed a "wrist lock" and walked [Petitioner] up to the entrance of the house. As Officer Crites appeared at the front door of 1610 Regester Street with [Petitioner], Det. Stach was standing there. He said to [Petitioner]: "What's up, Maurice?" [Petitioner] then said: "I'm not going in that ho use. I've n ever be en in tha t house ." Det. Stach testified that his words to [Petitioner] were "not a question on anything that has to do with illegal activity." He stated, moreo ver, that [Petitioner] appeared very agitated and nervous when he "blurted out" those words. Det. Stach acknowledged that [Petitioner] was under arrest by the time he was b rough t to the ho use. . . . Inside 1610 Regester Street, the police recovered a handgun with live rounds in it and three plastic bags containing 25 clear vials of cocaine, all of which had been stashed above the ceiling tiles. The police searched [Petitioner] in cident to his arrest and recovered $2 10.00 [from P etitioner's person]. 179 M d. App . at 22-2 4, 943 A .2d at 69 8-99 (f ootnot es omitt ed). The record shows that the following transpired during Detective Stach's direct examination: 3

[STA TE'S A TTOR NEY :] And when you observed [Petitioner] being brought u p to the hou se, could you e xplain his demeanor and his tone when he was making the statements to you? [DET ECTIV E STA CH:] Oh, he was very agitated, nervous and he, again, he blurted out, a s I said, "Hi, Maurice," to him, "I'm not going in that house. I was never in that house."

The follo wing tran spired durin g Detectiv e Stach's cr oss-exam ination: [PETIT IONE R'S CO UNS EL:] And when [Petitioner] was brought back by Officer Crites, was he free to leave at that time? No, he was u nder ar rest. He was under arrest at that time? Yes, at m y direction . And did you read [P etitioner] his Miranda rights at that time? No, I d id not. And are you aware of whether Officer Crites did? No, I do not believe so . I don't know. [Petitioner] was never questio ned. Well, you asked him what was up, didn't you? That's not a question on anything that has to deal with illegal activity. 4

[DET ECTIV E STA CH:] [PETIT IONE R'S CO UNS EL:] [DET ECTIV E STA CH:] [PETIT IONE R'S CO UNS EL:]

[DET ECTIV E STA CH:] [PETIT IONE R'S CO UNS EL:]

[DET ECTIV E STA CH:]

[PETIT IONE R'S CO UNS EL:]

[DET ECTIV E STA CH:]

[PETIT IONE R'S CO UNS EL:] [DET ECTIV E STA CH:] *** [PETIT IONE R'S CO UNS EL:]

I'm no t asking you that[ .] I did ask him what was up.

And after [Petitioner] blurted out [that] he didn't want to go into the house, I assume that's when the arrest and control technique was used; is that co rrect? He was escorted in. I asked [Off icer Crit es] to bri ng him in. We ne eded h im in the house . I didn't want one officer outside, one officer inside and then me looking aro und the ho use with three suspe cts, three De fendants [in ther e with m e]. Detective, I asked you[,] was that before or after he blurted it, the statement o ut. He was put into the house after he blurted out the statement, he was broug ht into th e hous e. And it's my understanding from your testimony that nobody asked [Petitioner] any questions except you? I said, "What's up, Maurice?" That's a quest ion, yes, m a'am. And that's when he blurted the statement o ut?

[DET ECTIV E STA CH:]

[PETIT IONE R'S CO UNS EL:]

[DET ECTIV E STA CH:]

[PETIT IONE R'S CO UNS EL:]

[DET ECTIV E STA CH:]

[PETIT IONE R'S CO UNS EL:]

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[DET ECTIV E STA CH:]

That's when he stated, "I'm not going in that house. I hav en't been in that hou se." Ye s, ma'am . And after that, were there any other questions that were asked of him? Not by m e.

[PETIT IONE R'S CO UNS EL:]

[DET ECTIV E STA CH:]

The follo win g transpi red a t the c onclusio n of Detectiv e Sta ch's testim ony: [PETIT IONE R'S CO UNS EL:] Your H onor, I'm ju st going to submi t. Than k you ve ry much . Okay. Your Honor, I just simply argue that the statement that was made wasn't really . . . in response to an interrogation, therefore Miranda didn't really apply at that time. It was a statement that was blurted out and I don't think it should be suppressed. And as far as the money that was recovered off of [Petitioner], it was [a] search incident to arrest and there was probable c ause base d on the fa cts that Yo ur Ho nor hea rd. Okay, based on the evidence before the Court, the Court is satisfied that there was compliance with the Constitution of Maryland. Also, the Court is further satisfied that the law of the State is that an interrogation is where the officer expressly ask[s] an individual a question or employ[s] any word or act that the officer should [have] know[n] [was] 6

THE C OUR T: [STA TE'S A TTOR NEY :]

THE C OUR T:

reasonably likely to elicit an incriminating response. The evidence before the Court establishes that the comments by Detective[] Stach amounted to merely an exchange of greetings [under] the case law [of] [ Rhode Island v.] Innis , 446 U.S. 291 [(198 0)], [an d]. . . [ State v.] Conover , 312 Md. 33 [537 A.2d 1 167 (1988)]. Also, the law of the State is [that] volunteer[ed] statements or blurts that are not the product of an interrogation, [do] not trigger Miranda warnings. The Motion to Suppress. . .the statements [is] consid ered an d denie d. The State's case-in-chief included the testimony that Petitioner sought to suppress. Standard of Review The following standard of review is applicable to a case in which a petitioner argues that this Court should reverse the denial of a motion to suppress his or her inculpatory statem ent: In reviewing a circuit court's grant or denial of a motion to suppress evidence , we ordina rily consider only the evidence contained in the rec ord of the sup pressio n hearin g. State v. Tolbert, 381 M d. 539, 548 , 850 A.2d 1192, 11 97 (2004 ); State v. Rucker, 374 Md. 199, 207, 821 A.2d 439, 443-44 (2003); White v. State , 374 Md. 232, 249, 821 A.2d 459, 469 (2003). The factual findings of the suppression court and its conclusions regarding the credibility of testimony are accepte d unless cle arly erroneous. Tolbert, 381 M d. at 548 , 850 A.2d at 1197. We review the evidence and the inferences that may be reasonab ly drawn in the light most fav orable to the prev ailing pa rty. Id.; Rucker, 374 M d. at 207 , 821 A.2d at 444; White, 374 Md. at 249, 821 A.2d at 469. We "undertake our own independent constitutional appraisal of the record by reviewing the law and 7

applying it to the facts of the presen t case." Tolbert, 381 Md. at 548, 850 A.2 d at 1197; White, 374 Md. at 249, 821 A.2d at 469. Rush v . State, 403 Md. 68, 82-83, 939 A.2d 689, 697 (2008). Discussion In the case at bar, it is clear that (1) Petitioner was "in custody" when he made the inculpatory statem ent, 2 and (2) none of the exceptions to the requirements of Miranda v. Arizona are applicable.3 Petitioner was therefore entitled to suppression of the statement at issue if that statement resulted from either actual interrogation or the functional equivalent of inter rogatio n. We h old, how ever, tha t Petition er was subjec ted to ne ither. As to whether "What's up, Maurice?" constituted actual interrogation,4 it is very

"[P]ersons temporarily detained pursuant to [ Terry stops and ordinary traffic] stops are not `in custody' for the purposes of Miranda ." Berkem er v. McC arty , 468 U.S. 420, 440, 104 S.Ct. 3138, 3150 (1984). A "custodial" arrest occurs when "a known or suspected offender" is detained and taken into custody "for the purpose of prosecuting him [or her] for a crime." Cornish v . State , 215 Md. 64, 67-68, 137 A.2d 170, 172 (1957). Petitioner's "custodial arrest" occurred before he made the incriminating respon se. The exceptions to the Miranda requirements include the "routine booking question" exception discussed in Hughe s v. State , 346 Md. 80, 87, 695 A.2d 132, 136 (1997); the "public safety" exception recognized in New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626 (1984); and the "rescue doctrine" exception discussed in Thoma s v. State , 128 M d. App . 274, 73 7 A.2d 622 (1 999), cert. denied, 357 Md. 192, 742 A.2d 521 (1999). Although Petitioner has never expressly conceded that his statement was not the product of actual or "express" interrogation, he has asked this Court to determine only the issue of whether (in the words of his Petition) "the question `What's up, Maurice?' [was] the functional equivalent of interrogation under all the circumstances of this case. . .?" (Emphasis supp lied). 8
4 3

2

well settled th at not every qu estion cons titutes "interrog ation" of a suspect w ho is in custody when the question is asked. As the Supreme Court of Indiana has stated: The term "interrogation" has been defined as a process of questioning by law enfo rcement o fficials wh ich lends itself to obtaining incriminating statements. Escobedo v. Illinois , (1964), 378 U.S. 478, 485, 84 S.Ct. 1758, 1762, 12 L.Ed.2d 977, 986. Not every statement uttered by a po lice officer w hich is punctuated with a question mark will necessarily constitute an interrog ation. . . . Rather, it is nec essary to view the statement in the co ntext in w hich it w as mad e. Johnson v. State , 380 N.E.2d 1236, 1240 (Ind. 1978). While the Miranda warnings must precede questions directed to the issue of whether a suspect who is in custody has engaged in and/or has knowledge of criminal activity, a classic example of a question that does not constitute "interrogation contemp lated by Miranda " is a question that asks the defendant, "Do you understand your (Miranda ) rights?" Richards on v. State , 6 Md. App. 448, 452, 251 A.2d 924, 927 (1969), cert. denied 255 M d. 743 ( 1969) . In Richardson, an appellant who had been convicted of rape and related offenses argued that he was entitled to a new trial on the ground that the State's evidence included statements attributed to him while he was being asked questions to determine whether he understood his Miranda rights. After the appellant had been placed under arrest, he was advised of his rights by a detective who read from a "Miranda card" that was introduced

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into evidence.5 That card contained four questions to be asked of the defendant after he or sh e had rece ived the a dvis e req uired by Miranda : Do you understand your rights and what I have just explained to you? Are you willing to make a statement without a lawyer present at this time? Do you understand and know what you are doing? Have any promises, threats or inducements been made to pressure or coerce you in to making this statemen t? Id. at 450 n.1, 251 A.2d at 926 n.1. The suppression hearing court accepted the following testimony of the arresting officer. After he had read to appellant the Miranda rights contained on the card, and while he was asking appellant the questions contained on the card, appe llant stated, "I did not rape tha t girl. She gav e in to me v oluntarily." Wh ile rejecting the appellant's contention that his statement should have been suppressed, the Court of Special Appeals stated: In the case at bar, there can be no question that the appellant was in police custody at the time the statement was given; but it is equally clear that the statement was not the result of "questioning initiated by law enforcement officers [quoting Miranda v. Arizona, 384 U .S. 436 , 444, 86 S.Ct. 1602, 1612 (1966 )]." . . . It is apparent that the appellant simply interrupted the officer and "blurte d out" or "v olunteered " the stateme nt. The officer had not asked him any questions concerning the crimes for which he was arrested; interrogation, in the sense contemp lated by Miranda , had no t begun . Id. at 452, 2 51 A.2 d at 926 -27.

The Richardson opinion includes the entire contents of the Miranda card. 6 Md. App. a t 450 n.1 , 251 A .2d at 92 6 n.1. 10

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Cases holding that not every question constitutes "interrogation" include United States v. Jackson , 189 F.3d 502 (7th Cir. 1999), in which an appellant who had been convicted of possession of crack cocaine with intent to distribute argued that he was entitled to a ne w trial on the ground th at the gove rnment's e vidence in cluded his p ostarrest stateme nts made a fter he had been ask ed whe ther he "w ould like to a ssist in different avenues of investigation that [you] could help us on[?]" Id. at 506. On June 16, 1997, the appellant was arrested for driving without a valid license, crack cocaine was discovered in the trunk of the vehicle he had been driving, and a vial containing crack cocaine was found under the seat of the patrol car in which he had been placed before being transported to police headquarters. On June 17, 1997, the appellant (1) was removed from his cell by a detective of the East St. Louis Police Department (the detective) and advised of his Miranda rights, (2) stated that he would not make a statement unless a lawyer was present, and (3) was returned to his cell. On June 18, 1997, upon learning that the appellant had been arrested, an agent of the Illinois State Police (the agent) requested that the detective bring the appellant to an interview room where the agent requested that the appellant assist the officers in their investigation of the appellant's supplier. The statements at issue were made as the appellant was being returned to h is cell. The U nited States D istrict Court fo r the South ern District of Illinois ruled that the a ppellant w as not entitled to suppress ion of thos e statemen ts. While affirming that ruling, the United States Court of Appeals for the Seventh Circuit provided

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the following factual background: During the inter view, . . . [the agent] expla ined to Jackson that he was not concerned with any of the details of Jackson's arrest of June 16, 1997. [The agent] also advised Jackson that . . . he [(the agent)] had knowledge that [the appellant] had sold crack cocaine on two separate oc casions to an underco ver office r. [The ag ent] also told [ the appellan t] that he was not interested in obtaining any statement from him and that he was a "little fish" who could help the p olice catch h is supplier. . . . [The appellant] sta ted that he w ould call [the agent] upon his release. [Th e agent's] co nversation with [the appe llant] lasted approximate ly twe nty minutes. . . . As [the detective] escorted [the appellant] back to his cell, [the ap pellant] mentioned to [the detective] that after speaking to [the agent] he realized "that he was in a lot of trouble. He stated that he wanted to clear up an earlier matter of the traffic stop in the park." . . . During the ensuing conve rsation, [the a ppellant] volunteered information to [the detective] concerning the June 16 traffic stop, none of which related to [the agent's] narcotics distribu tion inv estigatio n. Jackson stated that the bag of crack found in the trunk of [the] car [he had been drivin g immed iately prior to his arrest] was his and took responsibility for placing the cocaine vial beneath the seat of the squad car. Id. at 505-06 (footnote omitted). After citing Arizona v. Roberson, 486 U.S. 675, 678, 108 S. Ct. 2093, 2096 (1988), (in which the United States Supreme Court held that, even if a suspect invokes his or her right to counsel when interrogated with respect to a particular investigation, the investigating officers "are free to inform the suspect of the facts of the second in vestigation a s long as su ch comm unication d oes not co nstitute interrogation"), the Jackson Court stated: When [the agent] explained to Jackson that . . . he knew that [the 12

appellant] had sold crack cocaine to the undercover office on two occasions in April, he was "informing the suspect of the facts of the second investigation," Robertson, 486 U.S. at 687, 108 S. Ct. at 2101, and soliciting Jackson's assistance if he was willing to give it after he was relea sed from jail. [The ag ent] also told [the appellant] that he had no interest in obtaining a statement from him. W ith respect to th e constitution al claim that Jackson has raised concerning his interview with [the agent], in view of the fact that [the agent] did not ask any questions of Jackson concerning the traffic stop on June 16, 1997, and since [the agent] advised Jackson of the fact that the only reason he was spea king with him was to solic it his help in an ongoing drug investigation after he was freed from jail, [the agent's] meeting with Jackson should not be considered an interrogation. *** "An accuse d, . . . having ex pressed his desire to dea l with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1885, 68 L. Ed. 2d 378 (1981) (emphasis added). After speaking with [the agent] on June 18, 1997, and as [the detective] was returning [the appellant] to his cell, Jackson personally requested that he be allowed to speak w ith the police in order th at he m ight "cle ar up" th e traffic stop. O bvious ly, . . . it was Jackson who "initiated further communication." Id. Id. at 511. ( Emph asis in op inion). The above cited cases are consistent with Hughe s v. State , 346 Md. 80, 695 A.2d 132 (1997), in which, while holding that the "routine booking question" exception (to the requirements of Miranda v. Arizona) does not encompass a question as to whether the arrestee is a "narcotics or drug user," this Court stated that "the critical inquiry is whether 13

the police officer, based on the totality of the circumstances, knew or should have known that the question was reasonably likely to elicit an incriminating response." Id. at 95-96, 695 A .2d at 13 9-40. For these reasons, we conclude that, even if "What's up, Maurice?" was a question rather than a greeting, this "question" did not constitute "interrogation" contemp lated by Miranda . While concluding that the words spoken by Detective Stach were words of greeting rath er than w ords of inte rrogation, the Court of Special A ppeals stated : The motions court concluded that Det. Stach's words, under the circumstances, were merely a greeting. Upon our independent assessment of the record, we agree. The phrase "what's up?" is co mmon ly used as a greeting, especially, as the State points out, among young people. At least one other jurisdiction has recog nized that the phrase is ge nerally understood as a greeting . See Arnett v. State , 353 Ark. 165, 122 S.W.3d 484, 488 (Ark. 2003) (stating that the phrase "What' s up?" constitutes a general term of salutation, and holding that the officer's use of the phrase, under the circumstances of that case, was not interrogation or its function al equivalen t); United States v. Paredes, 388 F. Supp. 2d, 1185, 1193-94 (D. Ha. 2005) (holding statement admissible w here there was no evidence that a simp le "O kay, what's up?" by the police officer would elicit an incriminating response). Det. Stach's testimony indicates that he did not intend the words he spoke to appellant to be anything other than a greeting. He testified that "W hat's up, M aurice?" w as "not a question on anything that has to do with illegal activity." The court did not indicate that it disbelieved that testimony, and we accept it. That fact is significant b ecause "th e police sure ly cannot be h eld accounta ble for the unf oreseeable results of their words or actions," and "the definition of interrogation can extend on ly to words or actions on th e par t of p olice officers that t hey should have known were reasonably likely to elicit an incriminating 14

response." Innis , 446 U.S. at 301-02 (footnote omitted). *** Given that the phrase "what's up" is generally understood to be a greetin g, and that D et. Stach did n ot intend the phrase to relate to anything "illegal," we conclude that the detective's utterance of the words "what's up, Maurice" was not the functional equivalen t of interroga tion, under th e circumstances of this case. Consequently, appellant's statement that followed on the heels of Det. Stach's greeting was not the product of interrogation but rather w as voluntee red by appella nt. It was a classic "blurt," to which the protections of Miranda do not ap ply. See Fenner [ v. State ], 381 Md. [1,] at 10[, 846 A.2d 1020, 1025 (2004), (holding that the petitioner had not been subjected to custodial interrogation during a bail review hearing when the presiding judge asked him, "Is there anything you w ould like to tell me abou t yourself?")]; Conover [ v. State ], 312 Md. [33,] at 45[, 537 A.2d 1167, 1172 (1988)] ; see also C onboy v. S tate , 155 Md. App. 353, 373, 843 A.2d 216[, 228] (2004) (ho lding that a police officer's comment, remarking that a key discovered in defendant's pocket fit the ignition of a car involved in an accident, "was merely an observation made without inviting a response;" and, although the appellant "nonetheless did respond," the response w as not the pr oduct of interrogation and was proper ly admitted into evid ence a t trial). 179 M d. App . at 28-3 0, 943 A .2d at 70 2-03 (f ootnot e omitte d). In Arnett v. State , 122 S.W.3d 484 (Ark. 2003), the Supreme Court of Arkansas affirmed a sexual child abuse conviction obtained in part on evidence that, while the arresting officer was placing handcuf fs on the defend ant, (1) the arresting officer asked, "w hat's up?" and (2) the defendant stated that he had sexually abused his daughter and that he needed help. While rejecting the contention that the defendant's response should have been suppressed, the Arnett Court stated: 15

We hold that [the officer's] general question in this case of "What's up?" is a general term of salutation much like the officer's salutation in Weber v. State , 326 Ark. 564, 933 S.W.2d 370 (1996), wherein we held th at the trial court w as correct in admitting a defendant's incriminating statement made in reply to the respondin g officer's salutation. It is not reasonable to view [the officer's] general "What's up?" as designed to elicit an incrimin ating res ponse . Id. at 488. The Court of Special Appeals expressly agreed with that analysis.6 So do we. We therefore hold that Petitioner's statement did not result from actual or express custodial interrogation. As to the issue of whether Petitioner was entitled to suppression on the ground that his statement resulted from the functional equivalent of interrogation, it is well settled that the functional equivalent of interrogation can occur even if the defendant is not asked a single question. In Rhode Is land v. Innis , 446 U.S . 291, 100 S .Ct. 1682 (1 980), wh ile holding tha t the incrimina ting stateme nt made b y a robbery suspe ct being tran sported to the police station was admissible even though the statement was made in response to a conversation between the officers who were transporting the suspect, the United States Supreme Court stated: [T]he Miranda safeguards come into play whenever a person in custody is subjected to eithe r express qu estioning or its functional equivalent. That is to say, the term `interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than

In The Merriam-Webster Dictionary (2005), "salutation" is defined as "an expression of greeting, goodwill or courtesy [usually] by word or gesture." 16

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those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguard s were de signed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police sh ould kno w is reasonab ly likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforese eable results of their w ords or actions , the definition of interrogation can extend only to words or actions on the part of the police officers that they should have known were reasonably likely to elicit an incriminating response." Id . at 300- 302, 10 0 S. Ct. a t 1689- 90 (fo otnotes omitted ). In Drury v. State, 368 M d. 331, 793 A.2d 56 7 (2002), w hile conclu ding that a petitioner had been subjected to the functional equivalent of custodial interrogation, even though he had not been ask ed a single q uestion bef ore he ma de an incu lpatory statemen t, this Court stated: It is a basic principle that a statement taken during custodial interrogation conducted before a defendant is informed of his or her Miranda rights may not be used by the State in its cas e in chief against the defendan t. The test to be applied in determining whether the police officer's statements . . . was tantamount to interrogation is whether the words and actions of the officer w ere reaso nably like ly to elicit incriminating responses from p etitioner . See Williams v. State, 342 Md. 724, 760, 679 A.2d 1106, 1124-25 (1996). Id. at 335- 36, 793 A.2d a t 510. In Drury , a jury convicted the petitioner of second degree burglary and related offenses. The State's case included evidence that the petitioner made 17

an inculpatory statement after he had been (1) "picked up for questioning," (2) placed in an interrogation room, (3) shown a tire iron recovered at the scene of the crime, (4) shown a trash bag containing magazines that had been stolen during the burglary, and (5) told that those items wo uld be exa mined fo r fingerprints . Even though the petitioner had not been asked any questions before he made the inculpatory statement, because that statement was made before he was advised of his Miranda rights, this Court h eld that the state ment sho uld have been suppressed on the ground that "the officer's conduct and words were the functional equivalent of interrogation within the meaning of Innis ," explaining: It is undispute d that, although petitioner was in cu stod y, he was n ot subje cted to e xpress interrog ation. T he officer did not ask petitioner questions, but rather made a statemen t to him and displayed the tire iron and magazines. Petitioner had been brought to the police station for the express purpose of questioning and, in fact, had been told so by Corporal Whaley. The police were not engaged in routine booking procedures; they were not required by any Maryland rule or procedure to read any document (other than the Miranda rights) to petitioner. Nonetheless, the officer placed the tire iron and the trash bag containing the stolen ma gazines on the table before petitioner bef ore advisin g him of his Miranda rights. The officer told petitioner that he was goin g to send th e evidenc e to be examined for fingerprints. Moreover, the officer testified that he "was presenting the evidence that was going to be used for questio ning." It appears to us that the only reasonable conclusion that can be drawn from the f oregoing facts is that the o fficer shou ld have known, in light of his having told petitioner that he was being brought in for questioning, that putting the evidence before petitioner and telling him that the items were going to be fingerprinted was reasonably likely to evoke an incriminating 18

response from him. The only plausible explanation for the officer's conduct is that he expected to elicit a statement from petitioner. Id. at 337, 793 A.2d at 571. On the other hand, in State v. Conover, 312 Md. 33, 537 A .2d 1167 (1988 ), this Court reversed a holding of the Court of Special Appeals "that delivery of the Statement of Charges and Application to the respondent after he had requested an attorney constituted a form of interrog ation." Id. at 38, 53 7 A.2d at 1169 . In that case, a jury convicted the respondent of murder and related offenses. T he State's case included evidence that he made an inculpatory statement after he had been advised of his Miranda rights and in voked h is right to coun sel. The respondent was arrested on a warrant, transported to the Baltimore County Police Headquarters, and taken to the office of the captain of the homicide squad, where he was read his Miranda rights and in voked h is right to an attorney. Although he was not asked any questions at that time, while the detectives were completing his "processing," a detective (1) read the Statement of Charges to him, (2) handed him copies of that document as well as the Application for Statement of Charges, and (3) suggested that he "read them, look at them, [and] if [he] had any questions[,] ask them." Id. at 37, 53 7 A.2d at 1169 . The respondent then asked several hypothetical questions, and made the incriminating statement at issue. While holding that the respondent's incriminating statement w as admissib le, this Court stated : [W]e are persua ded, as w as the trial judg e, that the polic e did not "interrogate" Respondent within the meaning of Miranda . 19

They intended to question him, and took him to the captain's office for that purpose -- an entirely proper procedure. Howeve r, when Responden t declined to w aive his right to counsel, all questioning cea sed. The o fficers w ere entitled to complete the process ing of the a rrestee, and w ere required to furnish him w ith a cop y of the C hargin g Doc umen t. . . . We infer no sinister motive from the fact that police provided Respondent with a copy of the Application as well as a copy of the Statement of Charges. . . . We do not consider it unusual for the detectives to have treated the Application for a Statement of Charges as a part of the "packet" of charging documents. . . . The police acted reasonably and lawfully, and the Respondent was not subjected to compelling influences, psychological ploys, or direct questioning. His volunteered statement was properly admitted. Id. at 42-4 5, 537 A .2d at 11 71-72 . In Blake v. Sta te , 381 Md. 218, 849 A.2d 410 (2004), this Court cited Conover for the proposition that "[m]erely presenting an accused with a charging document, without more is not the functional equivalent of interrogation." Id. at 236, 847 A.2d at 420. In Blake, however, while holding that all statements made by the petitioner after he invoked his Miranda rights were inadmissible, this Court stated: When the charging document was given to petitioner, containing a false statement of the law with respect to the penalty of death, it was accompanied by an officer's statement which served no legitimate purpose other than to encourage petitioner to speak. *** . . . We reject the State's characterization . . . that the officer's statement ["I bet you want to talk now, huh!"] was merely a rhetorical ques tion. The o fficer's statem ent to 20

petitioner could only be interpreted as designed to induce petition er to talk and it w as impr oper. Id. at 235- 36, 849 A.2d a t 420. In the case at bar, Petitioner presented no evidence in support of his argument that his inculpatory statement resulted from the functional equivalent of custodial interrogation. He was entitled to testify at the suppression hearing without running the risk that the State could use his testimony in its case-in-chief,7 because a defen dant's suppression hearing testimony "may not thereafter be admitted against [the defendant] at trial on the issue of guilt unless [the defendant] makes no objection." Simmons v. United States, 390 U.S. 377, 394, 88 S.Ct. 967, 976 (1968). As was the situation in Conover , however, only one witness testified at the suppression hearing. Under these circumstances, the suppression hearing court was not required to speculate that, when Petitioner heard the words, "What's up," he actually believed that he was being subjected to custodial interrogation.8
7

In United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547 (1980), the United States Supreme C ourt noted that it "has not decide d whether Simmons precludes the use of a defendant's testimony at a suppression hearing to impeach his testimony at trial." Id. at 93, 100 S. Ct. at 2554. The Salvucci Court also noted that Gray v. S tate , 43 Md. App. 238, 403 A.2d 85 3 (1979) is o ne of sev eral cases ho lding "that su ch testimon y is admissible as evidence of impeachment." Id. at 94 n.8 , 100 S .Ct. at 25 54 n.8. In Conover , after noting that the respondent's trial counsel "did not argue that the delivery of a copy of the application co nstituted interrogation," but rather that "[t]here came a point in time at which Christopher Conover was asked whether or not he might be able to provide some information[,]" this Court stated: Respondent did not testify at the suppression hearing, and no 21
8

Review ing the evid ence in the lig ht most fav orable to the prevailing p arty, it is clear that the suppression hearing court found that Detective Stach did not intend to ask Petitioner "a question on anything that has to do with illegal activity." That factual finding was n ot clearly e rroneo us. The critical inquiry, therefore, is whether Detective Stach, based on the totality of the circumstances, knew or should have known that greeting Pe titioner with th e words, " What's u p, Maur ice?," wo uld be reaso nably likely to elicit an in crimina ting resp onse. From our own independent constitutional appraisal of the record, w e hold that it is n ot reasonab le to expect th at those w ords wo uld be likely to elicit an incriminating response. W e therefore agree w ith the suppression hearing c ourt and the Court of Special Appeals that there is no merit in Petitioner's argument that he was su bjected to the fu nctiona l equiva lent of in terroga tion. JUDGMENTS AFFIRMED; PETITIONER TO PA Y THE COSTS.

direct evidence was offered in support of [the] argument [presented during the suppression hearing]. The trial judge was under no obligation to accept the inference for which Respondent's [trial] counsel argued, and we accept the finding of the trial judg e on that fa ct. 312 Md. at 44, 537 A.2d at 1172. 22

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