
    Elton R. JONES, Appellant, v. UNITED STATES, Appellee.
    No. 96-CM-1220.
    District of Columbia Court of Appeals.
    Argued March 6, 1998.
    Decided March 4, 1999.
    
      Christian G. Lamar, Public Defender Service, with whom James Klein and Sarnia Fam, Public Defender Service, were on the brief, for appellant.
    Susan A. Nellor, Assistant United States Attorney, with whom Mary L'ou Leary, United States Attorney at the time the brief was filed, and John R. Fisher, and Thomas C. Black, Assistant United States Attorneys, were on the brief, for appellee.
    Before SCHWELB and REID, Associate Judges, and MACK, Senior Judge.
   MACK, Senior Judge:

In this court, appellant Jones challenges his conviction on one count of possession of a controlled substance (in violation of D.C.Code § 33 — 541(d)), and the denial of his motion to suppress statements made by him while in custody and before he had been advised of his Miranda rights. We agree with his contentions and, therefore, reverse.

I.

Briefly, the facts may be summarized as follows: At the hearing on appellant’s pretrial motion to suppress, the government called Officer Diane Groomes, who testified that at 9:30 p.m., on a November evening, she was driving a scout car (along with two foot patrolmen) when they saw appellant and two other men (whom Groomes knew “real well”) standing on the sidewalk of a narrow one-way street. As the three officers approached in the scout car, they saw appellant drop two ziplock bags at his feet. Officer Groomes quickly stopped the car and' all three officers, in full uniform and armed, alighted and approached the group on the sidewalk.

At the approach of the officers, appellant appeared to panic; he picked up a beer bottle and moved it to his mouth. One of the officers picked up the ziplock bags (each of which contained a white rock) and handed them to Groomes who ordered the two men standing next to appellant to cross to the other side of the street.

Officer Groomes, asked by the motions court if appellant was “free to leave,” replied:

[I] believe at that time he knew he was — I mean there’s three officers, and I mean he wasn’t going to go anywhere. We were around him, so he wasn’t free to leave— he’s panicking — he was saying that all he does is drink. When he seen us pick it up, he’s like all I do is drink.

The three officers surrounded appellant and called for a police unit wagon to conduct a field test. Officer Groomes continued:

And then in the meantime as we were waiting for the field test, I think then we started asking him questions, like you know, if he knew, you know, where he brought it from, who he bought it from. But he you know didn’t want to say anything about that.
íjí sj: t|« ‡ "k'
We might have asked like, you know, for his ID and his name and everything. While waiting for the field test, we were kind of asking him if he wanted to volunteer information on who he brought it from, stuff like that.

At the beginning of cross-examination by defense counsel, the motions court interrupted to make the initial observation that it would repeat throughout — that it was prepared to find that appellant was in police custody (and the officer had indicated as much).

Thereafter, appellant testified that, following repeated representations by the officers that they would let him go if he just told him from where he got the drugs, “I got scared” and said that he got it “from the guys across the street.”

After hearing oral arguments, the motions court ruled that it was denying appellant’s motion to suppress, concluding: (1) that appellant was in custody at the time he made the alleged statements, (2) that no Miranda warnings had been given prior to this time, but (3) that it did “credit” that the statements made by appellant (that he was holding the drugs for someone else) were spontaneous and (presumably) therefore admissible. A bench trial (and conviction) followed immediately.

At the beginning of trial, the court advised counsel that there was no need to repeat the (motion) testimony. The prosecutor used appellant’s admission (that he was holding the bags for the “two guys” across the street) to convict appellant of possession of drugs.

II.

As our young professionals are fond of repeating, “[Tjhis case is basically straightforward.” What the officers did to Mr. Jones constituted a violation of the procedural safeguards of the Miranda rule. In 1966, the Supreme Court thought this rule to be necessary to protect a defendant’s Fifth Amendment privilege against compulsory self-incrimination during custodial interrogation; it requires that an officer taking a suspect into custody must inform that person “that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.” 384 U.S. at 479, 86 S.Ct. 1602 (emphasis added).

Despite present-day debated interpretations, the rule remains just as prophylactic as it was in 1966. Thus in 1980, the Supreme Court, examining the scope of custodial interrogation, said in Rhode Island, v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980):

We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its junctional equivalent. That is to say, the term “interrogation” under Miranda refers not only to express questioning, but also to any ivords or actions on the part of police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. [Emphasis supplied; footnotes omitted.]

The court further noted that “[interrogation ... must reflect a measure of compulsion above and beyond that inherent in custody itself.” Id. at 300, 100 S.Ct. 1682. See also Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985).

The rule also is clear. The government cannot use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. It is likewise clear that in the instant case Mr. Jones was in custody when he was surrounded by three uniformed armed law enforcement officers under circumstances where a reasonable person would never have believed he was free to leave.

In construing the Innis “functional equivalent of questioning” prong, we have noted that “interrogation ... requires an objective evaluation of the normally foreseeable effect of [the police officer’s conduct], ... which turns on the objective purpose manifested by [the officer].” Derrington v. United States, 488 A.2d 1314, 1326 (D.C.1985). In making this objective evaluation, we must “focus[] primarily on the perceptions of the subject in order to ‘reflect the fact that the Miranda safeguards were designed 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.’ ” Id. (quoting Innis, supra, 446 U.S. at 301, 100 S.Ct. 1682). In other words, “whether words or actions of the police are reasonably likely to elicit an incriminating response is measured primarily not by the intent of the police, but by how police action would reasonably be perceived by the suspect.” Morris v. United States, 469 A.2d 432, 438 (D.C.1983). If the police should have known the suspect would reasonably perceive that their conduct would instigate an incriminating response, the “functional equivalent of questioning” (i.e., “interrogation”) has taken place. See Derrington, supra, 488 A.2d at 1326.

We have applied the “functional equivalent of questioning” prong to various factual situations, including: (1) rhetorical questions by officers (In re E.G., 482 A.2d 1243, 1248 (D.C.1984) (holding officer’s rhetorical question, “I wonder where the gun and money is,” subsequent to legal frisk was reasonably likely to elicit an incriminating response)); (2) questions directed to the victim, but overheard by defendant (Spann v. United States, 551 A.2d 1347, 1350-51 (D.C.1988) (holding a victim’s unforeseeably loud and accusatory response to an officer’s question made in close proximity to defendant was not reasonably likely to elicit an incriminating response)); (3) answers by an officer in response to defendant’s continued questions Wilson v. United States, 444 A.2d 25, 28 (D.C.1982) (holding officers’ answers to questions initiated by defendant were reasonably likely to elicit an incriminating response, where the exchange was part of police officers’ deliberate strategy)); and (4) exchanges of common place greetings (Morris, supra, 469 A.2d at 438 (holding police detective could not have foreseen that a brief exchange of commonplace greetings would prompt defendant to make inculpatory statements)).

In the present case, we must decide whether the police should have known appellant was reasonably likely to offer incriminating statements; we must examine, not only individual events, but a series of events. Here (1) three uniformed police officers quickly exit a marked cruiser when they observe appellant and two other men on the sidewalk of a narrow one-way street; (2) as the officers approach they observe appellant drop two ziplock bags and appear to panic; (3) appellant remains in place as the officers order the other two men across the street; (4) the officers see and retrieve the bags (each of which contains a white rock) inches from appellant’s feet and surround him; and (5) the officers send for a drug identification unit; they ask appellant to identify himself and to tell them from whom he had bought the drugs; and (6) appellant answers that he was holding the drugs for the guys across the street.

If these officers should have known that this sequence of events likely would have compelled inculpatory or exculpatory statements used to incriminate and convict, appellant has been the victim of compulsion, and thus the “custodial interrogation” and the statements were inadmissible at trial.

We are acutely aware, and the government reminds us, that in reviewing an appeal from the denial of a motion to suppress, our scope is limited. Brown v. United States, 590 A.2d 1008, 1020 (D.C.1991). We must review the evidence offered at a suppression hearing in a light most favorable to the prevailing party, and we must draw all reasonable inferences in that party’s favor. Peay v. United States, 597 A.2d 1318, 1320 (D.C.1991). However, whether the evidence establishes that appellant’s statements were taken in violation of his Fifth Amendment rights is a question of law which we consider de novo. See Brown, supra.

Our de novo review of the motions court’s application of its findings to Innis’ legal standard, and subsequent denial of appellant’s motion to suppress his incriminating statements, leads us to a different conclusion than the trial court. We believe the officers’ conduct constituted the “functional equivalent of questioning” as defined by Innis. Specifically, the three officers should have known that their actions in approaching and isolating appellant, retrieving the two plastic drug bags, and immediately asking appellant for identification likely would compel an explanation regarding ownership of the drugs. Moreover, viewed in their entirety, the officers’ actions went beyond conduct “normally attendant to arrest and custody.” Innis, supra, 446 U.S. at 300-01, 100 S.Ct. 1682.

Mr. Jones was not free to leave when isolated and surrounded by three armed (and apparently experienced) officers who had seen him drop the ziplock bags containing white rocks. He should have been given the Miranda warnings. The phrase “custodial interrogation” by definition and design aptly describes the necessity for a rule of warning in order to protect the constitutional right against self-incrimination. The very simple recitation, required by that rule, poses no hardship on the law enforcement officers who have reason to curtail a citizen’s freedom of movement.

The arguments before us, reflecting exhaustive research, nevertheless prompt us to remind that this is an appeal from a conviction following trial. The government, therefore, is placed in the unenviable position of reminding us that “although we are bound to accept the trial court’s factual findings,” we nevertheless should reject the finding that appellant was in custody when interrogated. However, on this record we cannot do so. The facts, developed by the government’s own witness speak for themselves. The setting and the circumstances compel the conclusion of “custodial interrogation.” The police kneiv that appellant was in custody, the police kneiv that appellant kneiv he was in custody, and the trial court unequivocally held that appellant was in custody when interrogated, and had not been given the Miranda warnings. The officer’s conduct was the “functional equivalent” of express questioning, which brought forth a statement that the prosecutor used to convict appellant of possession of narcotics at trial. In our capacity to apply the law de novo, we find that the Miranda rule was violated.

In making this decision, we recognize the difficulty that the cases present in ascribing a point on the continuum between coercion and spontaneity. However, in this case the officers’ conduct more closely allies with the affirmative police actions associated with the “functional equivalent of questioning,” than with the passive and incidental police conduct which permits spontaneity. As the Supreme Court noted in 1985:

The Fifth Amendment prohibits use by the prosecution in its case in chief only compelled testimony. Failure to administer Miranda warnings creates a presumption of compulsion. Consequently, unwarned statements that are otherwise voluntary within the meaning of the Fifth Amendment must nevertheless be excluded from evidence under Miranda.

Elstad, supra, 470 U.S. at 306-07, 105 S.Ct. 1285 (emphasis in original). Accordingly, we

Reverse.

SCHWELB, Associate Judge,

concurring in the judgment:

I agree that Jones’ inculpatory statements should have been suppressed. My analysis, however, differs from the majority’s in some respects.

First, I am not sure that this case requires the application of the doctrine of Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), in which the Supreme Court addressed police conduct vis-a-vis a suspect which amounts to the “functional equivalent” of express questioning. See id. at 300-01, 100 S.Ct. 1682. Officer Groomes testified that Jones was questioned directly about his guilt: “[W]e were kind of asking him if he wanted to volunteer information on who[m] he bought it from, stuff like that.” In my opinion, this was interrogation, not just its functional equivalent. If Jones was in custody, this was a blatant Miranda violation, without regard to Innis issues.

Turning to the question whether the interrogation was custodial, my review of the record satisfies me that the government has waived the point. In the trial court, the prosecutor made no objection when the judge repeatedly stated that Jones was in custody for Miranda purposes. Indeed, the judge declared to Jones’ attorney: “I’m prepared to find that [Jones] was in custody based on the testimony you’ve already gotten,” and she declined to entertain further defense evidence on the point. The prosecutor remained silent, thus implicitly acquiescing in a ruling which limited the record on the custody issue. Subsequently, during argument, the prosecutor effectively conceded that Jones was in custody:

It’s the government’s position that these statements are not suppressible because they were not made in response to police interrogation. The officer stated that she was sure that she did not elicit any response for the defendant while he ivas in their custody..

(Emphasis added.)

“Parties may not assert one theory at trial and another theory on appeal.” Haches v. Haches, 446 A.2d 396, 398 (D.C.1982) (citation omitted). “Points not asserted with sufficient precision to indicate distinctly the party’s thesis will normally be spurned on appeal.” Hunter v. United States, 606 A.2d 139, 144 (D.C.) (citations and internal quotation marks omitted), cert. denied, 506 U.S. 991, 113 S.Ct. 509, 121 L.Ed.2d 444 (1992). “These principles apply as rigorously to the government as they do to a criminal defendant who faces the loss of his liberty.” United States v. Porter, 618 A.2d 629, 642 n. 24 (D.C.1992).

In my opinion, the government’s effective concession in the trial court that Jones was in custody makes it unnecessary to decide that issue, and I see no reason to do so. Without the waiver by the government, the question would not be an easy one for me. We held in In re E.A.H., 612 A.2d 836, 838-39 (D.C.1992) that a Terry stop does not implicate Miranda rights. The record before us is truncated on account of the judge’s unopposed ruling, and I am not sure, on the basis of the present record, that the seizure had proceeded beyond a Terry stop and ripened to a formal arrest at the time that Jones made his admissions.

Finally, I think it worth noting the obvious: Our holding that Jones’ statement should have been suppressed does not affect the remainder of the evidence against him, including Officer Groomes’ testimony that Jones dropped the drugs to the ground. Nothing in this court’s decision precludes a retrial of Jones without the suppressed statement. Indeed, a new trial may be unnecessary if the trial judge, after excluding that statement from her calculus, is nevertheless satisfied beyond a reasonable doubt of Jones’ guilt.

For the foregoing reasons, I concur in the judgment. 
      
      . See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
     
      
      . Miranda tells us that "no distinction may be drawn between inculpatory statements and statements alleged to be merely exculpatory. If a statement made were in fact truly exculpatory it would, of course, never be used by the prosecution." 384 U.S. at 476-77, 86 S.Ct. 1602.
     
      
      . We also note that our recent holding in Davis v. United States, 724 A.2d 1163 (D.C.1998) is distinguishable from the present case. Specifically, Davis upheld the admissibility of a post-Miranda statement, notwithstanding that the police obtained a pre-Miranda statement, reasoning that the unwarned statement was voluntary and not coerced. Here, however, appellant did not volunteer a post-Miranda statement, following his coerced pre-Miranda statement.
     
      
      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
     