Ineffective assistance of counsel; Failure to move to suppress defendant’s police statements; Lack of Miranda warnings; “Custody”; People v Lewinski; Valid Terry stop; People v Steele; Limited scope & duration of a Terry stop; Johnson v VanderKooi; Prejudice; People v Yeager

The court held that defendant-Johnson’s attorney was deficient for failing to move to suppress her police statements and that she was prejudiced by the deficient performance. Thus, it reversed her third-degree retail fraud conviction and remanded for a new trial. Johnson, who was 14 years old at the time, “made two inculpatory statements during the police interrogation. First, she admitted that she had stolen several cans of alcohol. Second, after being handcuffed, she explained that she stole the alcohol so that she could get drunk.” The court found that while there were grounds to make a Terry stop, the trial court erred in determining “that because there was a valid Terry stop, the police interrogation was automatically noncustodial up until” when she was handcuffed. The court concluded there was a reasonable probability that she “did not feel free to leave. She had tried to flee from the police when they first turned around, but they pursued and apprehended her. Being prevented from fleeing would certainly lead to a belief that one is not free to leave. Then, sometime between when she was caught and when the body camera started recording, her boyfriend was handcuffed and led away by a police officer. Seeing a confederate led away in handcuffs would also suggest that one is not free to leave.” In addition, she “was ordered to sit down on a bench. A police order to sit down would also lead an ordinary person to believe that he or she is not free to leave. Next, Johnson was questioned for a few minutes, sometimes by one officer and sometimes by two officers. Both officers were in full uniform and armed. She was repeatedly accused of lying, warned to not lie, and chastised for running. Both officers conducted searches of her water bottle without first asking her if they could do so. The nature and scope of the questions likewise suggest that Johnson was not free to leave. Considered in totality, at the time that [she] made the first inculpatory statement, it is plain that she was subject to a custodial interrogation because she could have reasonably believed that she was not free to leave.” Because it “was not preceded by an adequate warning,” her statements were not admissible at trial. The court also held that her attorney’s deficient performance in failing to move to suppress prejudiced Johnson. Her “confession during the body camera footage was certainly the strongest and most persuasive evidence” against her.