Argued: January 25, 2017
from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Suzanne Skelton, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Greenbelt, Maryland, for Appellant.
Kenneth Sutherland Clark, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee.
Wyda, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Baltimore, Maryland, for Appellant.
Rosenstein, United States Attorney, Debra L. Dwyer, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee.
by published opinion. Judge Floyd wrote the majority opinion,
in which Judge King joined. Judge Agee wrote a dissenting
KING, AGEE, and FLOYD, Circuit Judges.
Master Giddins was convicted of bank robbery and conspiracy
to commit bank robbery following a jury trial. Part of the
evidence used at trial was a videotaped statement Giddins
gave to police during the investigation into the crime. On
appeal, Giddins argues that the statement was coerced, and
that he did not voluntarily waive his Fifth Amendment rights.
We agree, and find that harmless error cannot save the
conviction in light of this constitutional trial error. As a
result, we reverse Giddins's conviction. We need not
address the additional issues Giddins has raised regarding
the course of three days in September 2013, three different
bank robberies were committed in and around Baltimore,
Maryland. The first robbery occurred on September 25, 2013,
when someone wearing women's clothing and a black wig
entered the M&T Bank in Baltimore, Maryland. That person
handed the teller a note stating that the person had a bomb,
and demanded that money be placed into a black and white
polka dot cosmetic bag, which was handed to the teller. After
obtaining the money, the robber fled the bank, was driven
away in a waiting vehicle, and discarded a GPS tracker the
teller had placed in the bag, to which wig fibers were
attached. Police later determined that the robber was
Appellant Master Giddins, that the getaway car was his silver
Ford Focus, and that the getaway driver was Czekiah Fludd.
next day, September 26, 2013, Giddins lent his car to Fludd
and Ashley Fitz, whom Giddins was dating at the time. Fitz
and Fludd drove to an Exxon station to obtain blank lottery
tickets, on which one or both of them wrote a note similar to
the note used in the September 25th robbery. They then drove
to the First Mariner Bank in Owing Mills, Maryland, where
Fitz entered the bank wearing a black wig and carrying a
black and white polka dot cosmetic bag. After handing the bag
and note to a teller, Fitz was given cash, and then ran from
the bank. A construction worker saw Fitz and Fludd get into
Giddins's car, and the Exxon station recorded the pair on
video obtaining the blank lottery tickets.
following day, September 27, 2013, Giddins again lent his car
to Fitz and Fludd. They, along with a third person, Alexis
Chandler, robbed the Baltimore County Savings Bank in
unincorporated Baltimore County, Maryland. Fitz and Chandler
both entered the bank wearing wigs, gave notes that they had
a bomb, and demanded money. Fitz was given a dye pack along
with her money, which exploded on the way back to the car.
Fitz threw the bag out of the window, and additional items
were discarded. When the three women went back to try to
obtain the bags, they were stopped for matching the
description of the bank robbery suspects. They were
ultimately arrested, and the car was seized.
their arrest, Fitz and Chandler provided statements to the
police and admitted involvement in the September 27th
robbery. Fitz additionally admitted to participating in the
September 26th robbery and implicated Giddins. Fitz told
police that the September 26th robbery was committed using
Giddins's car, that Giddins had been present when both
robberies were planned, and that Giddins had been involved in
the September 25th robbery.
on the statements and evidence, Detective William Taylor of
the Baltimore City Police Department applied for and obtained
a warrant for Giddins's arrest from a Commissioner of the
District Court of Maryland for Baltimore City. See
Gov't Suppl. Authority Ltr., Attach. 1, ECF No. 65-2
[hereinafter, the "Warrant"]. The Warrant was
issued on October 3, 2013 at 10:20 am. Id.
about October 4, 2013, Giddins was informed by Baltimore
County Police that they had his car and that it had been used
in a bank robbery. On the morning of October 4th, Giddins
went to Baltimore County Police headquarters in order to
retrieve his car. Upon arrival, Giddins was taken to an
interview room by Detective Steve Morano of Baltimore County
Police Department and an unknown member of the department.
Giddins's interactions with police officers from the time
he entered the interrogation room were recorded on
video. The interrogation room was set up
with an oblong, almost rectangular table on the side of the
room with one long end of the table against the wall; there
was one chair per free side of the table, Giddins was seated
on one of the short sides, and Det. Morano sat on the long
side. There were also two doors to the room-one immediately
behind Giddins within his arm's reach, and one
approximately five feet behind Det. Morano, outside the
entering the room at 10:17:35 am and sitting down, Det.
Morano copied down Giddins's license information. At
10:17:58, the unknown member of the department left the room
through the door behind Giddins, which was also the door
through which the three had entered the room. Upon leaving,
he audibly locked the door, causing Giddins to turn his head
toward the door.
Morano asked Giddins to whom he lent his car, and Giddins
replied that he lent it to Fludd. Det. Morano informed
Giddins that Fludd was locked up, and continued asking
details about when and why Giddins lent Fludd his car, the
frequency with which Giddins would lend Fludd his car, and
whether Fludd was going through any hard times. At 10:20:55,
Giddins asked Det. Morano, "Am I in trouble?" to
which Det. Morano replied, "No, you're here getting
your car right?" and went on to explain that he was
taking notes for a report because the car was used in a
crime. At 10:21:25, Det. Morano got up to leave and informed
Giddins that he had to complete some paperwork and would be
right back. After checking that the door behind Giddins was
in fact locked, Det. Morano left through the second door.
10:22:56, Det. Taylor from Baltimore City Police entered the
room through the second door, explained that Det. Morano had
become busy with something else, and that Det. Taylor would
be taking over. Det. Taylor sat
down in the seat vacated by Det. Morano, and began going over
the same biographical information with Giddins. At 10:23:31,
"Mr. Kim" entered the room, purportedly as a
trainee detective observing the situation, and sat down at
the remaining seat at the other short end of the table
opposite Giddins. Det. Taylor then
continued asking Giddins biographical information. Giddins
asked if he could take a call at 10:27:02, and Det. Taylor
told him that he could, but that it needed to be "real
quick" and then everyone was going to "put their
phones up." At 10:27:25, Det. Taylor placed his phone on
the table and indicated that Giddins should do the same.
Giddins put his phone on the table by him, and Det. Taylor
picked it up, moving both of their phones to the end of the
table farthest from Giddins and closest to Kim. Giddins phone
began ringing again at 10:27:42, and Det. Taylor handed the
phone back to Giddins, but told him to "go ahead and
turn it off for a couple of minutes."
Taylor produced a Miranda waiver around 10:28:12 and told Giddins
that they had to read him his rights because his car was
involved in a crime. He told Giddins, "It doesn't
mean you're under arrest, it doesn't mean you're
being charged with anything. But since we're asking you
questions, by law we have to read you your rights, OK?
(pause) I'm kind of interested to find out what's
going on with these three young ladies who decided to use
your car in a crime." Det. Taylor passed the
Miranda waiver to Giddins at 10:28:46 and instructed
him, "What I want you to do is read each one out loud to
me, stop at the end of each one. If you understand what it
says, write the word 'yes' and put your initials next
to it. If you have any questions, you can ask me, OK?"
Giddins then began reading each right aloud, and when he
confirmed that he understood, Det. Taylor instructed him to
write "yes" next to the statement.
bottom of the form, after reading each individual right, the
form required a full signature after the statement, "I
have been advised of and understand my rights. I freely and
voluntarily waive my rights and agree to talk with police
without having an attorney present." Det. Taylor asked
at 10:30:31, "You don't have any questions with us
asking about your car, do you?" Giddins responded,
"Yes. Is this the procedure for me to get my car back?
Like-cause I feel like-, " and Det. Taylor responded,
"Yeah, we do, but like I said, your car was used in
crimes that we need to-we need to dig in and find out
what's going on with your-with these three girls, what
your relation with them is, how they came in contact with
your car, all that stuff." Giddins replied that he
understood, and Det. Taylor asked, "Do you mind
explaining all that stuff to us?"
then stating that he "d[id]n't know any of that
stuff, " Giddins asked at 10:30:36, "That's
what I'm asking, like, is this, like, the procedure for
me to get my car back?" to which Det. Taylor responded,
"Yeah-in order for us to ask you questions, because the
vehicle was used in a crime, by law, we have to go over these
rights. If we start asking you stuff and you don't want
to talk to us, then don't talk to us. But we're just
trying to figure out some issues." Giddins asked again,
"But do I still get my car?" and Det. Taylor
responded, "Before I release the car to you, I would
like to know some answers. . . . I would like to know some
answers before we release your car back to you." Giddins
said, "That's what I'm asking, " and then
Det. Taylor told him, "We'll explain everything to
then asked Det. Taylor, "I'm not in trouble or
anything, am I?" Det. Taylor answered, "Not at this
point, no. We'll find out what's going on. So long as
you don't have-you know-you don't sit there and tell
me you were hiding in the trunk and you escaped when the
police pulled them over, no. Right? You weren't hiding in
the trunk, were you?"
Giddins smiled and shook his head, Det. Taylor said,
"Then what do you have to worry about?" Giddins
said, "I don't have anything to worry about, I just
don't like how I feel like I'm being interrogated-and
y'all just-" and Det. Taylor interrupted,
"You're not being interrogated, you're
free-" to which Giddins interjected, "You gotta
understand what I'm saying." Det. Taylor told him,
"I know, I understand you, you're nervous. Because
your car was used in a crime. I'd be nervous, too."
then said, "I didn't do anything, and it's
like-" and Det. Taylor interrupted again, "Did I
say you did anything?" Giddins responded, "No,
I'm like, I'm in a closed room, two guys are here,
they locked the doors-" and Det. Taylor, indicating to
the door behind him and farthest from Giddins, replied,
"The doors aren't locked, the doors are wide
open." Giddins then grabbed the door handle immediately
behind him and showed how the knob was locked. Det. Taylor
said, "Well that one is. You can't get in on the
other side of that door. Why you think we have to come in
that door?" indicating to the one unlocked door. Giddins
said, "But you understand what I'm saying?"
Det. Taylor retorted, "Are you handcuffed?" Giddins
responded, "No, but you understand-" and Det.
Taylor said, "Oh, I understand you." Giddins then
signed the Miranda waiver at 10:32:10.
the next fifteen minutes, the questioning continued. Det.
Taylor asked Giddins about where he was during each of the
three robberies, his relationship with Fludd, Fitz, and
Chandler, and other topics. Giddins responded that he was
meeting with his parole officer during the September 25th
robbery. Det. Taylor periodically asked questions that
required Giddins to look at his phone, and each time after
Giddins finished, Det. Taylor instructed him to put his phone
back up and away from him. Giddins also told Det. Taylor that
he had been in trouble at work two days previously for using
his phone while at work. Additionally, Giddins told Det.
Taylor that he had been off from work on September 23rd and
24th, but at work on September 25th.
at 10:47:31, Det. Taylor showed Giddins a surveillance photo
of the robber from the September 25th robbery and told
Giddins that he was the robber. When Giddins denied that,
Det. Taylor laid out the case for why he suspected Giddins of
bank robbery. At 10:50:00, Giddins invoked his Fifth
Amendment right to counsel by stating, "No further
questions, " and asking for a lawyer, at which point
questioning immediately ceased. Det. Taylor seized
Giddins's cell phone at 10:50:06, prying it from
Giddins's hands and telling him "I'll take
that." At 10:50:09, Det. Taylor formally informed
Giddins that he was under arrest for bank robbery. At
10:50:15, Det. Taylor cuffed Giddins, and at 10:50:36, Det.
Morano re-entered the room through the previously locked
door. Giddins was taken out of the interrogation room to be
taken to Baltimore City jail at 11:11:37, at which point the
Giddins was indicted by a federal grand jury in the District
of Maryland on three counts of unarmed bank robbery, in
violation of 18 U.S.C. § 2113(a) and (f), and one count
of conspiracy to commit bank robbery, in violation of 18
U.S.C. § 371. Giddins moved to suppress the statements
given to police before trial began. A hearing was held at the
start of the trial before jury selection began, and the
district court denied the suppression motion by written
memorandum opinion. See United States v. Giddins, 57
F.Supp.3d 481 (D. Md. 2014).
the course of trial, the video was played for the jury, and
the government referred to the video and the statements
Giddins made in it during both opening statement and closing
argument. The jury convicted Giddins on one count of bank
robbery for robbing the M&T Bank on September 25th and
one count of conspiracy to commit bank robbery, but acquitted
him of the other two bank robbery counts. Giddins timely
noted this appeal following his sentencing, and we have
jurisdiction pursuant to 28 U.S.C. § 1291.
"When reviewing the district court's denial of a
motion to suppress, we review factual findings for clear
error and the legal determination that the statement was
voluntary de novo." United States v. Holmes,
670 F.3d 586, 591 (4th Cir. 2012) (citing United States
v. Mashburn, 406 F.3d 303, 306 (4th Cir. 2005)). "A
confession made during a custodial interrogation will be
suppressed unless police advise the defendant of his rights
under Miranda v. Arizona, 384 U.S. 436 (1966), and
the defendant knowingly, intelligently, and voluntary waives
those rights." Holmes, 670 F.3d at 591 (citing
United States v. Guay, 108 F.3d 545, 549 (4th Cir.
Giddins frames the issue in his appeal primarily as whether
the statements were voluntary, and discusses the
voluntariness of the Miranda waiver only
secondarily, in actuality it is the Miranda waiver
issue that is decisive in this case. Indeed, all arguments by
both Giddins and the government are directed toward the
remarks made by police in the immediate timeframe of the
Miranda waiver. Although Giddins argued below that
the pre-waiver statements were also involuntary, that
argument is not clearly raised before us here. Further, most
of the pre-waiver statements appear to be regarding simple
biographical booking information, to which no special
concerns under the Fifth Amendment apply. See
Pennsylvania v. Muniz, 496 U.S. 582, 601 (1990).
under Miranda only arise when a defendant is in
custody and subjected to interrogation. Montejo v.
Louisiana, 556 U.S. 778, 794 (2009); see also Rhode
Island v. Innis, 446 U.S. 291, 300-01 (1980)
("[T]he Miranda safeguards come into play
whenever a person in custody is subjected to either express
questioning or its functional equivalent."). The parties
do not dispute that Giddins was subject to interrogation.
Therefore, the issue of whether Miranda applies
turns on whether Giddins was in custody.
government first submits that Giddins was never in custody
prior to his formal arrest, so no warnings under
Miranda were even necessary. We disagree. "When
deciding whether a defendant not under formal arrest was in
custody-and thus if the Miranda requirements apply-a
court asks whether 'under the totality of the
circumstances, a suspect's freedom of action was
curtailed to a degree associated with formal
arrest.'" United States v. Hashime, 734
F.3d 278, 282 (4th Cir. 2013) (quoting United States v.
Parker, 262 F.3d 415, 419 (4th Cir. 2001)) (further
internal quotation marks and alterations omitted). It is an
objective inquiry, and essentially asks "whether a
reasonable person would have felt he or she was not at
liberty to terminate the interrogation and leave."
Id. at 282-83 (internal quotation marks,
alterations, and citations omitted). This determination
"calls for application of the controlling legal standard
to the historical facts . . . . [and thus] presents a
'mixed question of law and fact' qualifying for
independent review." Thompson v. Keohane, 516
U.S. 99, 112-13 (1995). "Facts relevant to the custodial
inquiry include, but are not limited to, 'the time, place
and purpose of the encounter, the words used by the officer,
the officer's tone of voice and general demeanor, the
presence of multiple officers, the potential display of a
weapon by an officer, and whether there was any physical
contact between the officer and the defendant.'"
Hashime, 734 F.3d at 283 (quoting United
States v. Day, 591 F.3d 679, 696 (4th Cir.
concluding that Giddins was not in custody, the district
court made findings of fact to support that conclusion:
Giddins voluntarily entered the police station to obtain the
return of his car. Giddins was not in handcuffs, and one door
was unlocked. Two investigators were present; one asked
questions while the other remained silent. No weapons are
visible in the recorded interview. Detective Taylor's
tone was nonthreatening. Although an arrest warrant had
issued, Giddins was apparently unaware of this fact and,
thus, it does not alter the objective inquiry.
Giddins, 57 F.Supp.3d at 489 (citations omitted).
findings are not clearly erroneous, and thus guide this
appeal. However, the findings of the district court are not
complete on this, and fail to paint the full picture. It is
true that one door was unlocked in the interrogation room,
but it was the door past the questioning detective. The door
immediately behind Giddins was locked, so in order to leave
the room, Giddins would have had to walk past Det. Taylor.
Additionally, at least twice during the interrogation, Det.
Taylor moved Giddins's phone away from Giddins. Although
Det. Taylor did tell Giddins that he was free to leave,
"such a statement 'is not talismanic or sufficient
in and of itself to show a lack of custody.'"
Hashime, 734 F.3d at 284 (quoting United States
v. Hargrove, 625 F.3d 170, 180 (4th Cir. 2010)).
on the custody inquiry, there is the issue of Giddins's
car. The district court rejected the argument, repeated here
on appeal, that Giddins was not able to leave the
interrogation room because he believed that if he terminated
the interview, he would not have his car returned to him. The
court found "[t]hat Giddins may have believed that
terminating the interview would prevent the return of his car
does not mean that Giddins felt unfree to leave."
Giddins, 57 F.Supp.3d at 489. We find that this is a
distinction without a difference.
stated above, the custody inquiry is an objective one and
does not consider "the subjective views harbored by
either the interrogating officers or the person being
questioned." J.D.B. v. North Carolina, 564 U.S.
261, 271 (2011) (internal quotation marks and citations
omitted). We must still, however, consider how a reasonable
person would have understood the situation. The purpose of
not considering subjective views is to "avoid
burdening police with the task of anticipating the
idiosyncrasies of every individual suspect and divining how
those particular traits affect each person's subjective
state of mind." Id. (citations omitted).
Keeping this in mind, we fail to see how a reasonable person
would have perceived the situation as permitting him or her
to leave the room freely. A reasonable person would have felt
unable to cease the interview and thus forfeit the
opportunity to obtain the return of his or her property. As
we explain in more detail in Section III.B.1, infr ...