State of Missouri v. Caden N. Ybarra

In the Missouri Court of Appeals Eastern District DIVISION THREE

STATE OF MISSOURI, ) No. ED109736 ) Appellant, ) Appeal from the Circuit Court ) of St. Charles County vs. ) ) Honorable Deborah J. Alessi CADEN N. YBARRA, ) ) Respondent. ) Filed: November 23, 2021

The State of Missouri brings this interlocutory appeal after the Circuit Court of St. Charles County sustained, in part, the motion of Defendant, Caden N. Ybarra, to suppress statements he made and physical evidence revealed during and after a traffic stop. We reverse in part and affirm in part, and remand for further proceedings.

We reverse the trial court’s suppression of Defendant’s statements made during the traffic stop because Defendant was not subjected to custodial interrogation during the traffic stop, so Miranda warnings were not necessary.1 Likewise, we reverse the trial court’s suppression of the evidence of cocaine Defendant voluntarily revealed during the traffic stop because we find no violation of Defendant’s Fourth or Fifth Amendment rights, in that Defendant was not unlawfully seized or in custody.

1 In Miranda v. Arizona, 384 U.S. 436, 444 (1966), the U.S. Supreme Court stated “[p]rior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.”

We affirm the trial court’s suppression of Defendant’s pre-Miranda statements made at the hotel after the traffic stop because Defendant at that point was subjected to custodial interrogation, and thus entitled to Miranda warnings.

Factual and Procedural Background

Following a traffic stop, the State charged Defendant with three felony counts of possession of a controlled substance and one misdemeanor count of possession of marijuana. Defendant filed motions to suppress incriminating statements he made during and after the traffic stop along with the cocaine he revealed to police during the stop.

When reviewing a trial court’s order suppressing evidence, we view the facts and the reasonable inferences from those facts in the light most favorable to the trial court’s ruling. State v. Selvy, 462 S.W.3d 756, 760 (Mo. App. E.D. 2015). In the early morning of July 31, 2019, Defendant was one of two passengers in a car driven by John Andrew, which was traveling west on Interstate 70 in St. Charles County, Missouri. At approximately 1:29 a.m., Missouri Highway Patrol Trooper Brodie Waaso observed the car driving 89 miles per hour in a 60-miles-per-hour zone, “bouncing back and forth” between lanes, and following another vehicle too closely. Trooper Waaso pursued the car, and pulled it over at 1:31 a.m. Andrew was in the driver’s seat, Defendant was in the front passenger seat, and a third man was in the back driver’s-side seat. Trooper Waaso approached the car and smelled a moderate odor of alcohol on the driver’s breath and saw a small amount of what he believed to be “marijuana shake” on the vehicle’s center console. Trooper Waaso asked the driver to exit the car, and detained the driver in the patrol car to begin a DWI investigation. Defendant and the other passenger remained in the car.

In the patrol car, Trooper Waaso inquired about the driver’s alcohol and marijuana consumption. After learning that Trooper Waaso would search the car, the driver admitted there *3 was “some” marijuana and cocaine in the car although he did not know where. Trooper Waaso conducted a preliminary breath test followed by field sobriety tests of the driver, which the driver failed. Meanwhile, Officer Mutz with the St. Peters Police Department arrived to assist Trooper Waaso. Officer Mutz remained near the car where Defendant and the other passenger remained seated. Trooper Waaso arrested the driver for DWI, handcuffed him, read him the Missouri Implied Consent Law and Miranda warnings, and secured him in the patrol car.

After his arrest and post-Miranda while restrained in the patrol vehicle, the driver again admitted there was cocaine and marijuana in the car. The driver stated his passengers may have tried to hide the drugs. Based on these statements, Trooper Waaso approached the car to confront both passengers about the drugs, and testified his investigation had shifted focus from a DWI investigation to a drug investigation. At 1:58 a.m., Trooper Waaso asked Defendant and the other passenger to step out of the car, and patted them down for safety. Trooper Waaso did not give the men Miranda warnings. Trooper Waaso testified he advised both men of the driver’s statement, told them he knew there were drugs in the car, and asked about their location. In response, Defendant told Trooper Waaso he had cocaine in a sock, and Defendant pulled a baggie filled with a white powdery substance from his sock. Defendant also told Trooper Waaso there was marijuana located under the passenger seat.

After retrieving the white powdery substance, Trooper Waaso instructed Defendant and the other passenger to remain with Officer Mutz while Trooper Waaso searched the passenger compartment of the car. The two passengers were further detained, but not handcuffed or physically restrained. Trooper Waaso found and seized the marijuana under the passenger seat, and also found marijuana in the storage pocket behind the driver’s seat. Trooper Waaso’s dashcam video shows the detention of both passengers and the search of the car. Thereafter, *4 Trooper Waaso walked back to his patrol car, at which time the driver stated the drugs were his idea, stated the drugs were all his, and asked Trooper Waaso not to charge his friends.

Trooper Wasso then called for a tow truck. Trooper Waaso did not arrest Defendant. Instead, Trooper Waaso instructed Officer Mutz to drive Defendant and the other passenger to a hotel because they were from out-of-state and needed a place to stay since their driver had been arrested. Officer Mutz transported Defendant and the other passenger from the scene in the back of his patrol car at 2:23 a.m. to a hotel. Trooper Waaso testified that when the tow truck arrived, he realized he forgot to search the trunk of the car as part of a standard tow inventory search. Trooper Waaso discovered a backpack in the trunk, and inside the backpack, he discovered Defendant’s student identification and a baggie containing what appeared to be marijuana residue.

As a result, Trooper Waaso radioed dispatch at 2:26 a.m. with instructions for Officer Mutz not to let Defendant go because Trooper Waaso wanted to question him further about the backpack. Defendant was still detained in the back of Officer Mutz’s patrol car when Trooper Waaso arrived at the hotel at 2:43 a.m. Trooper Waaso testified that Defendant was not free to leave. Trooper Waaso confronted Defendant with the backpack, asked if it belonged to him, and asked if the marijuana belonged to him. Trooper Waaso did not advise Defendant of his Miranda rights before confronting him with the backpack and marijuana and questioning him. When Defendant confessed the backpack and marijuana were his, Trooper Waaso arrested and handcuffed him. Trooper Waaso gave Defendant the Miranda warnings post-arrest.

After Defendant was arrested and read his Miranda warnings, Trooper Waaso searched the backpack and found four pills, later identified as clonazepam and oxycodone. Defendant made post-arrest statements that are not at issue in this appeal. The State charged Defendant with *5 four drug-related offenses: Count I, possession of a controlled substance (cocaine); Count II, possession of a controlled substance (clonazepam); Count III, possession of a controlled substance (oxycodone); and Count IV, possession of marijuana. Defendant filed motions to suppress statements and evidence. The trial court held a suppression hearing, and Trooper Waaso testified as the sole witness. The State also entered into evidence Trooper Waaso’s dashcam video showing the traffic stop, but not the exchange at the hotel.

The court issued the following order on the motions to suppress:

1. As to defendant’s statements at the scene of the traffic stop, Defendant’s motion is GRANTED. Defendant was entitled to Miranda warnings. The Trooper was not asking the defendant a moderate number of questions in order to obtain information confirming or dispelling his suspicions. At this point, he already knew that drugs were in the vehicle. Defendant’s freedom to leave was dependent upon the police officer because the defendant did not have transportation. 2. Defendant’s motion to suppress the cocaine evidence is GRANTED. The cocaine is the fruit of the poisonous tree. 3. Defendant’s motion to suppress statements made by the defendant at the hotel is GRANTED. Defendant was entitled to Miranda warnings. 4. Defendant’s motion to Suppress [sic] the evidence seized from defendant’s backpack is DENIED. Search of defendant’s backpack was lawful under the automobile exception and the inventory search exception.

The State appeals the suppression of Defendant’s statements during the traffic stop and at the hotel, and the cocaine evidence seized during the traffic stop.

Discussion

In three points on appeal, the State challenges the trial court’s suppression of Defendant’s statements made during the traffic stop, the cocaine contained in Defendant’s sock that he revealed during the traffic stop, and Defendant’s statements made at the hotel. The State contends that Defendant was not subjected to custodial interrogation that would necessitate Miranda warnings.

Standard of Review

In a motion to suppress, the State bears the burden to show by a preponderance of the evidence that the trial court should deny the motion. Section 542.296.6 RSMo. (2016); 2 Selvey, 462 S.W.3d at 764. The State may appeal any order or judgment that results in the suppression of evidence. Section 547.200.1. We will reverse a trial court’s ruling on a motion to suppress only if it is clearly erroneous. State v. Lindsay, 599 S.W.3d 532, 535 (Mo App. E.D. 2020). The trial court’s ruling is clearly erroneous if we are left with a definite and firm belief that a mistake has been made. State v. Stricklin, 558 S.W.3d 54, 61 (Mo. App. E.D. 2018).

When reviewing a trial court’s ruling on a motion to suppress, we limit our review to determining whether substantial evidence supports the decision, and we defer to the trial court’s factual findings and credibility determinations. Lindsay, 599 S.W.3d at 535. When the trial court’s ruling is plausible in light of the entire record, we will not reverse the decision even though convinced we would have weighed the evidence differently had we been sitting as the trier of fact. Id. Nevertheless, whether the Fifth Amendment or any other provision of the United States Constitution has been violated is a question of law that we review de novo. Stricklin, 558 S.W.3d at 61. Likewise, whether a person was in custody is an issue of law that we review de novo. State v. Schneider, 483 S.W.3d 495, 500 (Mo. App. E.D. 2016).

Statements Made During the Traffic Stop

In its first point on appeal, the State claims the trial court clearly erred in granting Defendant’s motion to suppress his statements made during the traffic stop. The State contends

2 All statutory references are to RSMo. (2016).

Defendant was not subjected to a custodial interrogation that would have entitled him to receive Miranda warnings. Specifically, the State argues Defendant was not in custody.3

The Fifth Amendment to the United States Constitution provides that no person shall be compelled to be a witness against himself in any criminal case.

[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of [a] defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.

Berkemer v. McCarty, 468 U.S. 420, 428-29 (1984) (quoting Miranda v. Arizona, 384 U.S. 436, 444 (1966)).

“Statements made during a custodial interrogation are inadmissible against a suspect on the issue of that suspect’s guilt of the charged offense unless police first inform the suspect of his or her rights under the Fifth Amendment.” State v. Little, 604 S.W.3d 708, 716 (Mo. App. E.D. 2020). “Custodial interrogation has two components: custody and interrogation.” Id. We determine whether a person is in custody by examining the totality of the circumstances. Schneider, 483 S.W.3d at 501. A person is only in custody for purposes of a custodial interrogation if he or she is either formally arrested or subjected to “arrest-like restraints.” Little, 604 S.W.3d at 716. Interrogation includes both express questioning and its functional equivalent;

3 There is no issue with the legality of the initial stop. Trooper Waaso had probable cause and reasonable suspicion for a Terry stop. Thus, the focus of this appeal is whether the detention was reasonable and whether Defendant was “in custody” for purposes of Miranda.

that is, any words or actions police should know are reasonably likely to prompt an incriminating response. Id.

In suppressing Defendant’s traffic-stop statements, the trial court reasoned Trooper Waaso went beyond asking Defendant a moderate number of questions in order to either confirm or dispel his suspicions. The trial court observed that Trooper Waaso already knew drugs were in the vehicle, and in addition, Defendant’s freedom to leave depended on the officer because Defendant lacked transportation.

Questioning pursuant to a routine traffic stop does not require Miranda warnings because a traffic stop is analogous to a ‘Terry stop.4’” Lindsay, 599 S.W.3d at 536. See also Berkemer, 468 U.S. at 439 (stating usual traffic stop more analogous to so-called “Terry stop” than to formal arrest). The officer may ask the suspect a moderate number of questions to determine his or her identity, and to try to obtain information confirming or dispelling the officer’s suspicions. Id. However, the suspect is not obligated to respond. Id. The U.S. Supreme Court held in Berkemer that persons temporarily detained pursuant to a routine traffic stop are not “in custody” for the purposes of Miranda.5 Id. at 440. Under the Fourth Amendment, a police officer who lacks probable cause but whose observations lead the officer reasonably to suspect a particular person has committed, is committing, or is about to commit a crime, may detain the person briefly to investigate the circumstances that provoke suspicion. Id. at 439. Officers may detain persons beyond the time necessary to investigate the traffic violation if the officer develops

4 In Terry v. Ohio, 392 U.S. 1, 30 (1968), the United States Supreme Court held that an officer may stop and briefly detain a person for questioning when the officer has a reasonable suspicion the person may be connected with criminal activity. 5 Justice Marshall’s Berkemer opinion acknowledged that a traffic stop significantly curtails the freedom of movement of the occupants of the detained vehicle. 468 U.S. at 436. Under the law of most States, it is a crime either to ignore an officer’s signal to stop or, once having stopped, to drive away without permission. Id. Nevertheless, the Supreme Court stated that a traffic stop does not “exert[] upon a detained person pressures that sufficiently impair his free exercise of his privilege against self-incrimination to require that he be warned of his constitutional rights.” Id. at 437.

reasonable and articulable grounds to suspect illegal activity based on the behavior and responses of the persons during the traffic stop. Selvy, 462 S.W.3d at 767; see also State v. Watkins, 73 S.W.3d 881, 883 (Mo. App. E.D. 2002) (new factual predicate for reasonable suspicion of another crime found during lawful seizure may extend time seizure maintains its lawful character beyond its initial purpose).

Such is the case here. The driver’s admission of having drugs in the car gave Trooper Waaso a new reasonable suspicion of other criminal activity as a basis to extend the detention for purposes of investigation. We cannot say Defendant was illegally detained. Defendant was not subjected to restraint from the time Trooper Waaso stopped the car at 1:31 a.m. until he approached the car and asked the passengers to step out at 1:58 a.m. The Defendant was permitted to remain seated in the car while Trooper Waaso detained the driver in the patrol car for questioning and testing on suspicion of drunk driving. After exiting the car, Defendant and the other passenger remained unrestrained until they left the scene with Officer Mutz at 2:23 a.m. Even after handing over drugs, Defendant was not arrested or handcuffed, and was free to leave the scene but for lack of transportation. This limited restraint of Defendant for 25 minutes is permitted under Terry, and the detention was no longer than necessary to effectuate the purpose of either confirming or dispelling the officer’s suspicion of drugs in the car.

When a person detained pursuant to a traffic stop thereafter is subjected to treatment rendering him or her “in custody” for practical purposes, the person becomes entitled to the full array of protections prescribed by Miranda. Berkemer, 468 U.S. at 440. We determine whether a person is in custody by considering the totality of the circumstances. State v. Werner, 9 S.W.3d 590, 595 (Mo. banc 2000); Schneider, 483 S.W.3d at 501. In Werner, our Missouri Supreme Court identified several factors to help guide us in determining whether a person was “in *10 custody.” 9 S.W.3d at 595. We find these factors instructive when called upon to determine whether a routine traffic stop evolved to the point of custody. See State v. Wilson, 169 S.W.3d 870, 877 (Mo. App. W.D. 2005) (applying Werner factors to detention and questioning of passenger after officer found marijuana in vehicle). Whether a person is free to leave the scene along with the purpose, place, and length of questioning are factors courts consider in determining whether a person was in custody, but those factors are not determinative. Werner, 9 S.W.3d at 595.

Other indicia of custody include the following non-exhaustive list:

(1) whether police informed the person at the time that the questioning was voluntary, that the person was free to leave or to ask to do so, or that the person was not under arrest; (2) whether the person possessed unrestrained freedom of movement during questioning; (3) whether the person initiated contact with authorities or rather voluntarily acquiesced to official requests to answer questions; (4) whether police employed strong-arm or deceptive tactics during questioning; (5) whether the atmosphere was police dominated; or (6) whether police arrested the person at the termination of questioning.

Id. Although determining custody is not limited to applying the enumerated factors, their presence and absence guide us in assessing the totality of the circumstances surrounding interrogations. Id. at 596. The affirmative presence of one or more of the first three factors during questioning would tend to mitigate the existence of custody at the time of questioning. Id. On the other hand, the affirmative presence of the last three factors would tend to aggravate the existence of custody. Id. The ultimate question is not the weighing of the factors, but whether the restraint on the person’s movement reached the degree associated with a formal arrest. Schneider, 483 S.W.3d at 501.

Trooper Waaso’s investigation of the driver’s suspected drunk driving—the initial traffic stop—evolved into a drug investigation stemming from specific, articulable facts leading Trooper Waaso to suspect illegal activity based on the behavior and responses of the driver during the traffic stop. Therefore, we evaluate the totality of the circumstances to determine whether Defendant was in custody for purposes of Miranda. Considering the first Werner factor, when police do not inform the person that he or she is free to decline to answer questions, the absence of this factor has been identified as an important indication that a custodial setting exists. Werner, 9 S.W.3d at 596. Here, Trooper Waaso did not inform Defendant that he was not required to answer questions, a factor that weighs in favor of finding Defendant in custody. However, this does not end the analysis.

Restraint on a person’s freedom of movement during questioning also bears on whether we find the person was in custody, and the relevant inquiry is the effect restraint has on the person. Id. In this case, Defendant was not handcuffed or physically restrained in the patrol car, and he was free to move about. This factor weighs against a finding that Defendant was in custody during the traffic stop.

The method used to summon the person for questioning is the third factor we consider in determining whether a person is in custody. Id. at 597. An important consideration is whether the person initiated contact with police, or merely submitted to official requests to answer questions. Id. Mere acquiescence to an officer’s request to answer questions does not indicate that a person voluntarily spoke with police, and was not in custody. Id. Here, this factor is mitigated as no method was used to summon Defendant. Defendant was detained as part of the routine traffic stop when police pulled over the car in which Defendant was a passenger. The officer may ask a moderate number of questions to confirm or dispel the officer’s reasonable suspicion of illegal *12 activity. Berkemer, 468 U.S. at 439. Defendant did not initiate contact with law enforcement, but the record demonstrates he voluntarily acquiesced in answering Trooper Waaso’s questions. Therefore, this factor weighs against finding Defendant was in custody during the traffic stop.

Whether the person was subjected to strong-arm or deceptive tactics is the fourth Werner factor that influences the custody assessment. 9 S.W.3d at 595. Defendant argues he was subjected to strong-arm demands because Trooper Waaso said he knew drugs were present and Defendant needed to reveal where the drugs were. We disagree with and are not persuaded by Defendant’s characterization. These statements were reasonable in the course of the investigation, and did not constitute deceptive strategies or strong-arm tactics. The record does not support, nor does Defendant suggest, that he was threatened or intimidated in any way as he was not the focus of the investigation. The lack of such tactics weighs against finding Defendant was in custody during the traffic stop.

Fifth, we consider whether the atmosphere was police-dominated when determining whether a person was in custody at the time of questioning. Id. at 597. We are more likely to view questioning that occurs in an atmosphere dominated by police as custodial than questioning that does not occur in such an atmosphere. Id. In determining whether the atmosphere is police-dominated, we consider the length of the interview. Id. There is no predetermined appropriate or inappropriate length of interrogation, but the duration is significant in assessing the overall setting and atmosphere in which questioning took place. Id. We also consider the place of an interview, as well as whether police assumed control of the site and dictated the course of conduct followed by the person questioned or others present at the scene. Id. When the conduct of the police leads a person to believe the police have taken control of the scene, a court is more likely to recognize the existence of custody. Id. Another example of police domination is the *13 removal of the person from the presence of family, friends, or colleagues who might lend moral support during the questioning and deter the person from making incriminating statements. Id.

In this case, Trooper Waaso spoke with Defendant for only a few minutes after asking both men to step out of the car. He informed them of the driver’s statements about the presence of drugs in the car, and asked for the drugs’ location. Defendant was not taken to the police station for questioning, physically restrained or isolated in any manner, detained apart from the other passenger, or questioned for hours. According to the dashcam video, only 25 minutes elapsed between Defendant’s removal from the car and his departure from the scene with Officer Mutz. Trooper Waaso was not engaged in speaking with Defendant for all of those 25 minutes. Here, we cannot say that any restraint was unreasonable, or the length of the interaction was inappropriate. There were only two officers present at the traffic stop of the three men, which occurred in public on a busy interstate. Therefore, this factor weighs against finding Defendant was in custody.

The final factor in assessing custody is whether the person was placed under arrest after questioning. Id. at 598. Here, Defendant was not placed under arrest during the traffic stop, so this factor weighs against finding Defendant was in custody.

In addition, we disagree with the trial court’s conclusion that Defendant was in custody in part because his freedom to leave was dependent upon Trooper Waaso because Defendant did not have transportation. Defendant’s lack of transportation does not equal custody or arrest-like restraint. Rather, it was the result of Defendant’s choice to ride in a car at 1:30 a.m. with an impaired driver. The gratuitous gesture of driving Defendant to a nearby hotel was not a detention or restraint.

After considering the totality of the circumstances, we hold Defendant was not in custody during the traffic stop because the restraint on him did not rise to the degree associated with formal arrest or arrest-like restraints. Because Defendant was not in custody, he was not subjected to custodial interrogation for purposes of Miranda warnings.

Defendant relies on State v. Wilson to argue that, in fact, he was taken into custody. 169 S.W.3d 870. In that case, Wilson was arrested, handcuffed, and placed in the patrol car without receiving Miranda warnings. Id. at 877. The Western District concluded that, even if Wilson were not under arrest, the totality of the circumstances demonstrated he was under arrest-like circumstances at the time police questioned him about the marijuana and ownership of the duffle bags found in the vehicle. Id. at 877-78. Thus, Wilson is readily distinguishable.

We agree with the State that Defendant was not in custody during the traffic stop on I-70. Trooper Waaso had reasonable suspicion to stop the speeding, weaving car in the first instance, and he developed reasonable suspicion to further investigate the presence of drugs in the car following his own observations and the driver’s admissions. Defendant was not subjected to arrest-like restraints. As stated above, he was neither handcuffed nor placed in the patrol car, and he was free to move about. Trooper Waaso employed no strong-arm or deceptive tactics. The traffic stop took place on a busy public highway, and the atmosphere was not police-dominated. Defendant was not detained longer than necessary for this routine traffic stop. Trooper Waaso questioned Defendant briefly for a reasonable time, asking him a moderate number of questions, and took no longer than was reasonable to either confirm or dispel his reasonable suspicions of illegal drug activity and to search the passenger compartment of the vehicle following the driver’s admissions regarding the presence of drugs. Finally, Trooper Waaso did not tell Defendant he was under arrest, and in fact, Defendant was not arrested during the traffic stop. *15 Instead, he was released to go to a hotel. The U.S. Supreme Court has held that these routine stops do not render a person “in custody” for purposes of Miranda. Berkemer, 468 U.S. at 440.

The totality of the circumstances demonstrate Defendant was not in custody because the restraint on him did not rise to a degree associated with formal arrest. Therefore, Defendant was not subjected to custodial interrogation, and as a result, police were not required to give him Miranda warnings before questioning him during the traffic stop. The trial court clearly erred in suppressing statements Defendant made to Trooper Waaso during the traffic stop on I-70. We grant the State’s first point.

Evidence of Cocaine

In Point II, the State claims the trial court clearly erred in granting Defendant’s motion to suppress the cocaine contained in his sock as the “fruit of the poisonous tree.” The State contends there was no Fourth Amendment violation, arguing the discovery and seizure of the cocaine did not suffer any infirmity, and is admissible at trial for the same reasons discussed in Point I.

The Fourth Amendment allows a Terry stop, a minimally intrusive form of seizure or “semi-arrest” that is lawful when a police officer has a reasonable suspicion supported by articulable facts that the person stopped is engaged in criminal activity. State v. Miller, 894 S.W.2d 649, 651 (Mo. banc 1995) (citing Terry v. Ohio, 392 U.S. 1 (1968)). Police are allowed to conduct a Terry stop of a moving vehicle upon a reasonable suspicion that the occupants are involved in criminal activity. Id. “A routine traffic stop based upon an officer’s observation of a violation of state traffic laws is a reasonable seizure under the Fourth Amendment.” Lindsay, 599 S.W.3d at 536. Police do not violate the Fourth Amendment merely by approaching a person in public, asking if he or she will answer questions, asking questions if the person is willing to *16 listen, or offering the voluntary answers to such questions in evidence in a criminal prosecution. Florida v. Royer, 460 U.S. 491, 497 (1983).

Defendant relies on Miller and Royer to argue the State failed to demonstrate the voluntariness of his production of the cocaine was sufficiently independent from his allegedly illegal detention to purge the taint. Both Miller and Royer are distinguishable. In Miller, our Supreme Court found the initial police stop was illegal, and the following search activity was not sufficiently attenuated to purge the taint of the illegal stop. 894 S.W.2d at 650. Here, in contrast, we have determined that the initial stop was legal. Trooper Waaso observed the vehicle speeding, weaving, and following another vehicle too closely, and thus had reasonable suspicion to believe violations of Missouri traffic laws were occurring. Further, after stopping the vehicle, Trooper Waaso observed marijuana in the vehicle. The driver also stated cocaine and marijuana were present in the vehicle, and the passengers may have tried to hide the drugs. This information gave Trooper Waaso reasonable suspicion based on articulable facts to believe additional criminal activity involving drugs was afoot, and to believe Defendant knew of that criminal activity.

In Royer, two detectives who believed Royer fit the “drug courier profile” confronted Royer on his way to the boarding area of the Miami airport, asking if he had a “moment” to talk with them, and Royer agreed. 460 U.S. at 493-94. The detectives asked for and retained Royer’s ticket and identification, escorted him to a small enclosed police room, retrieved his checked luggage from the airline without his consent or agreement, and then asked for consent to search his luggage. Id. at 494. Royer did not respond verbally, but produced a key to one of the suitcases. Id. Without seeking further consent and without a search warrant, the detectives opened the suitcase, found marijuana, and arrested Royer. Id. The U.S. Supreme Court found that *17 any consensual aspect of the encounter had evaporated, and Royer was illegally detained. Id. at 503. The detectives’ “conduct was more intrusive than necessary to effectuate an investigative detention otherwise authorized under the Terry line of cases. Id. at 504. Here, again, we have determined the initial stop was legal, and the questioning of Defendant during the traffic stop did not amount to a custodial interrogation. Defendant’s Fourth and Fifth Amendment rights were not violated. Thus, it reasons there was no taint.

The record reveals Trooper Waaso testified to specific, articulable facts creating an objectively reasonable suspicion that Defendant knew of criminal activity. Given our determination that Defendant was neither unlawfully seized nor in custody when he voluntarily gave the cocaine he was concealing to Trooper Waaso, we conclude the trial court clearly erred in suppressing the cocaine evidence. We grant the State’s second point.

Statements Made At the Hotel

Finally, the State claims the trial court clearly erred in granting Defendant’s motion to suppress his statements made at the hotel. The State argues Defendant was not entitled to Miranda warnings because Trooper Waaso asked Defendant a single question in a public place that was not police-dominated, Defendant was not restrained, and no strong-arm or deceptive tactics were used. In short, the State argues Defendant was not “in custody.” We disagree.

As discussed in Point I, we examine several factors to determine whether, under the totality of the circumstances, a person is “in custody” for purposes of Miranda. We consider the totality of the circumstances surrounding Defendant’s statements at the hotel separately from his statements during the traffic stop on I-70 because Trooper Waaso had released Defendant from the traffic stop, and initiated a new exchange with Defendant at the hotel.

Whether an accused is free to leave the scene along with the purpose, place, and length of *18 questioning are factors courts consider in determining whether a person was in custody. Werner, 9 S.W.3d at 595. Those factors are not determinative, and other indicia of custody include:

(1) whether police informed the person at the time that the questioning was voluntary, that the person was free to leave or to ask to do so, or that the person was not under arrest; (2) whether the person possessed unrestrained freedom of movement during questioning; (3) whether the person initiated contact with authorities or voluntarily acquiesced to official requests to answer questions; (4) whether police employed strong-arm or deceptive tactics during questioning; (5) whether the atmosphere was police dominated; or (6) whether police arrested the person at the termination of questioning,

which we use as a guide in assessing the totality of the circumstances. Id.

According to Trooper Waaso’s testimony, he released Defendant and the other passenger from detention at the traffic stop so that Officer Mutz could drive them to a nearby hotel. After the two men left the scene of the traffic stop, Trooper Waaso conducted an inventory search of the car’s trunk and discovered a backpack containing Defendant’s student identification and a baggie with what appeared to be marijuana residue. Trooper Waaso radioed dispatch with instructions for Officer Mutz not to let Defendant go because Trooper Waaso wanted to question Defendant about the backpack containing his identification and marijuana residue. As a result, Defendant was detained in Officer Mutz’s patrol car. Unlike the traffic stop, Defendant, in fact, was not free to leave and was restrained in his freedom of movement. Both facts weigh in favor of finding Defendant was in custody. The fact that Defendant remained detained in the patrol car, under guard, with limited movement, is a restraint associated with persons who have been arrested.

Here, it is undisputed that Trooper Waaso initiated contact at the hotel. Trooper Waaso called ahead and summoned for Defendant to be held. While not handcuffed, Defendant was not *19 free to leave, and his actions were curtailed as he remained in the patrol car before and during questioning. It cannot be said that Defendant at this point voluntarily acquiesced to submit himself to the officer’s request. See id. at 597 (stating mere acquiescence to officer’s request to answer questions does not indicate person is talking voluntarily with police and is not in custody.) Therefore, this factor also weighs in favor of a finding of custody at the hotel.

The record reveals no indication that police used strong-arm or deceptive tactics. We acknowledge Defendant was not taken to the police station for questioning; however, courts are free to consider whether the police assumed control of the scene such that it dictates the conduct of the person being questioned. Id. These factors weigh in favor of finding custody. Finally, here, Defendant was arrested immediately after answering Trooper Waaso’s questions, which weighs in favor of finding Defendant was in custody at the hotel. In weighing these six enumerated Werner factors and in assessing the totality of the circumstances, Defendant was in custody at the hotel. A reasonable person would not believe he or she was free to leave.

Having found Defendant to be in custody, we address whether Defendant was subjected to interrogation at the hotel. Interrogation includes express questioning and its functional equivalent, meaning any words or actions police should know are reasonably likely to prompt an incriminating response. Little, 604 S.W.3d at 716. Trooper Waaso arrived at the hotel parking lot where Defendant was detained. Trooper Waaso had the backpack in which he already found Defendant’s identification and marijuana residue. Without giving Defendant Miranda warnings, Trooper Waaso asked whether the backpack belonged to Defendant. When Defendant confessed the backpack was his, Trooper Waaso asked whether the marijuana residue belonged to him, and Defendant admitted that it did. While Trooper Waaso did not formally arrest Defendant until after he incriminated himself, Defendant was subjected to interrogation. Defendant was *20 subjected to express questioning by Trooper Waaso, who knew the questions about the backpack and marijuana were reasonably likely to elicit an incriminating response from Defendant. Trooper Waaso handcuffed Defendant, formally arrested him, and only then gave him Miranda warnings.

We find under the totality of the circumstances that Defendant was subjected to custodial interrogation at the hotel, and therefore, was entitled to receive Miranda warnings before Trooper Waaso confronted him regarding the backpack and marijuana residue. The trial court correctly suppressed Defendant’s incriminating statements made at the hotel as Miranda warnings were required. We deny the State’s third point.

Conclusion

We reverse in part, and affirm in part. As to Point I, we reverse the trial court’s suppression of Defendant’s statements made during the traffic stop because Defendant was not “in custody” for purposes of Miranda, so warnings were not required. As to Point II, we reverse the trial court’s suppression of the cocaine Defendant voluntarily revealed during the traffic stop because we find no violation of Defendant’s Fourth or Fifth Amendment rights, in that he was not unlawfully seized or in custody.

As to Point III, we affirm the trial court’s suppression of Defendant’s pre-Miranda statements made at the hotel because Defendant at that point was in custody and subjected to custodial interrogation, and thus entitled to Miranda warnings.

We remand to the trial court for further proceedings consistent with this opinion.

______________________________ Angela T. Quigless, P.J.

Philip M. Hess, P.J., and Colleen Dolan, J., concur.