Foster

MEMORANDUM **

Jamieson Foster appeals the district court’s denial of his motion to suppress under Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966). We have jurisdiction pursuant to 28 U.S.C. § 1291 . We reverse.

Before interrogating a defendant in custody, police officers must advise the individual of his Miranda rights. Miranda, 384 U.S. at 479 . A person is “in custody” when, based upon a totality of the circumstances, a reasonable person in such circumstances would conclude that he or she was not free to leave. United States v. Kim, 292 F.3d 969, 973-74 (9th Cir.2002). “By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been ... deprived of his freedom of action in any significant way.” Miranda, 384 U.S. at 444 .

Typical traffic stops are non-custodial for the purposes of Miranda, Berkemer v. McCarty, 468 U.S. 420, 439 , 104 S.Ct. 3138 , 82 L.Ed.2d 317 (1984). Similarly, Terry-stops, executed by police officers with a reasonable belief that a person has committed, is committing, or about to commit a crime, see Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), are also non-custodial…

dissenting.

Were this a typical “traffic stop” case, I would agree with my colleagues that reversal would be required. However, Foster was not stopped for a purported traffic violation; he was stopped because law enforcement officers reasonably suspected him of a narcotics violation. Therefore, I view the officers’ actions as a justifiable Terry stop, and therefore non-custodial for Miranda purposes. Accordingly, I respectfully dissent.

There are significant analytical differences between a true Terry stop and traffic stop. Berkemer v. McCarty, 468 U.S. 420, 439-40 , 104 S.Ct. 3138 , 82 L.Ed.2d 317 (1984). Under the doctrine announced in Terry v. Ohio, 392 U.S. 1, 30 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), a law enforcement officer may briefly detain a person for investigatory purposes if he or she has *418 a reasonable suspicion supported by articulable facts that criminal activity is afoot. United States v. Sokolow, 490 U.S. 1, 7 , 109 S.Ct. 1581 , 104 L.Ed.2d 1 (1989). It is well-settled that a routine Terry stop is not “custody” triggering the need for Miranda warnings, even though, of course, the suspect is briefly detained and hence not actually free to leave. See United…