Sidney Ray Crudup appeals his conviction for felonious possession of cocaine and presents one issue: Did the trial court err by admitting defendant’s incriminating statements (made without
Miranda
warnings in response to police questioning while handcuffed and detained) in violation of
Miranda v. Arizona,
In February 2001, James Patterson rented an apartment to defendant with the understanding that defendant would not reside in the apartment; instead, defendant’s girlfriend and baby would reside therein. Under that understanding, Patterson gave one key to defendant. On 22 May 2001, Patterson asked defendant to move his girlfriend and baby out of the apartment because of delinquent rent payments. After arguing, Patterson called the police and, for reasons not revealed in the record, reported a break-in.
In response to Patterson’s call, Officer Jeff Marbrey and five to six other officers went to the apartment to investigate the alleged break-in. Hоwever, as Officer Marbrey prepared to enter the residence, defendant exited the front door. Three officers handcuffed defendant and detained him as a burglary suspect. Thereafter, Officer Marbrey and another officer searched the house for the alleged burglar; in the course of doing so, Officer Marbrey observed numerous plastic sandwich bags in the bedroom closet. Upon closer inspection, Officer Marbrey discovered what was later determined to be crack cocaine. No one else was found in the house. Shortly thereafter, Officеr Marbrey asked defendant if he: (1) resided in the house, (2) was the only resident, and (3) owned the possessions found on the premises. Defendant answered the questions affirmatively. Officer Marbrey placed defendant under arrest for drug possession.
At trial, over defendant’s objection, the trial court admittеd defendant’s inculpatory statements into evidence. The trial court reasoned that the questions “by the officers were objective and reasonable . . . for their own protection [and] the protection of the public at large.” On 17 October 2001, defendant was convicted of possession of cocaine and sentenced to 8 to 10 months in the North Carolina Department of Corrections. On appeal, defendant assigns error to the admission of his inculpatory statements into evidence. Furthermore, *659 defendant contends that the statements were incurably prejudiсial. After carefully reviewing the record, we agree.
“It is well-established that the standard of review in evaluating a trial court’s ruling on a motion to suppress is that the trial court’s findings of fact ‘are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting.’ ”
State v. Buchanan,
“Miranda
warnings are required only when a defendant is subjected to custodial interrogation.”
State v. Patterson,
First, was defendant in custody? In
State v. Buchanan,
the Supreme Court of North Carolina held that “the appropriate inquiry in determining whether a defendant is in ‘custody’ for purposes of
Miranda
is, based on the totality of the circumstances, whether there was a ‘formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.’ ”
Buchanan,
Under the facts of this case, we conclude, as a mаtter of law, that defendant was in “custody.” The record reveals that defendant was immediately handcuffed and detained as a possible burglary suspect.
*660
While handcuffed, defendant was questioned while four officers, including Officer Marbrey, surrounded him. Most assuredly, defend- . ant’s freedom of movement was restrained to the degree associated with a formal arrest. A reasonable person under these circumstances would believe that he was under arrest.
See e.g., State v. Johnston,
Second, was defendant interrogated? Our Suрreme Court has held that “any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect” constitute an interrogation.
State v. Golphin,
In the case sub judice, after searching the residence and finding what he believed to be сrack cocaine, Officer Marbrey questioned defendant, asking if he or anyone else lived in the residence and whether he owned the contents therein. Unquestionably, a reasonable officer would know, or should have known, that any response to these questions would have incriminatеd defendant. If defendant denied having a right to be in the home, then defendant’s response would have tended to incriminate him as a burglar. On the other hand, if defendant admitted that he lived at the home and owned the possessions therein, then his response would have tended to incriminate him for possessing cocaine. Therefore, under the definition articulated by our Supreme Court in Golphin, we conclude that defendant was interrogated.
Third, do any exceptions to the Miranda rule apply? The trial court in this case held that defendant was not entitled to Miranda warnings because (1) the questions were permissible as routine on-the-scene questions, and (2) the questions were permissible under the public safety exception.
Miranda
warnings are not required during normal investigative activities conducted prior to arrest, detention, or charge.
Miranda,
In light of these factors, we hold that defendant was subjected to a custodial interrogation and not general on-the-scene questioning because: (1) defendant was interrogated by a police officer; (2) defendant was interrogated while in handcuffs; (3) Officer Marbrey testified that defendant was immediately considered a burglary suspect; (4) Officer Marbrey asked incriminating questions; and (5) defendant was not free to leave. 1
In the alternative, the trial court found, and the State contends, that the questions asked were legitimately based upon
Miranda’s
“public safety exception.”
State v.
Brooks,
In the case sub judice, the trial court concluded that “the questioning by the officers [was] objective and reasonable . . . for their own protection [and] the protection of the public at large.” We hold the circumstances in this case exceed the narrow scope of the public safety exception. Defendant was handcuffed and surrounded by three officers. There was no risk of imminent danger to the public, the officers, or even to the defendant. Absent the pro *662 tection of this exception, or any other exception, the offiсers had a duty to administer to defendant his Miranda rights before proceeding with questioning. Accordingly, the trial court committed error by not suppressing defendant’s inculpatory statements obtained in violation of Miranda.
While we conclude that the trial court erred in admitting defendant’s inculpatory statements, we rеcognize that not all constitutional errors warrant a new trial. Under N.C. Gen. Stat. § 15A-1443(b) (2002), “[a] violation of the defendant’s rights under the Constitution of the United States is prejudicial unless the appellate court finds that it was harmless beyond a reasonable doubt.” An error of constitutional magnitude will be held to be hаrmless beyond a reasonable doubt only when “the court can declare a belief . . . that there is no reasonable possibility that the violation might have contributed to the conviction.”
State v. Lane,
To convict a defendant of possessing a controlled substance, the State must prove beyond a reasonable doubt that defendant knowingly possessed the substаnce.
State v. Givens,
In a strikingly similar case,
State v. Washington,
While searching the vehicle, the officer found small plastic bags with a white powdery substance, later proved to be cocaine. The officer showed the bags to defendant and said, “look what I found.” Defendant said that “he had bagged up baking soda to look like cocaine so that he could sell it as cocaine and make a good profit.” At that point, the officer placed defendant under arrest for possession of cocaine.
At trial, defendant moved to suppress his inculpatory statements because they were obtained in violation of Miranda. Although defendant’s movement was involuntarily restricted, the trial court found that defendant was not “in custody.” Accordingly, the trial court concluded that defendant was not entitled to Miranda warnings.
Our Supreme Court, based upon Judge Greene’s dissent, reversed the triаl court’s decision. In addition to finding custodial interrogation, the Court found that the error was not harmless beyond a reasonable doubt. Thus, the Court adopted Judge Greene’s reasoning that: “Without the unlawfully obtained statements, the only evidence of the defendant’s guilt [was] circumstantial. As to the possеssion element, the only evidence is that the cocaine was found in a car driven by the defendant. However, the car belonged to someone else.” Accordingly, the Court held that “in light of the less than overwhelming circumstantial evidence, [we conclude admission of defendant’s statemеnt] was not harmless error beyond a reasonable doubt.”
State v. Washington,
In the case
sub judice,
the State’s evidence of constructive possession substantially rested upon defendant’s unconstitutionally procured statement claiming possession of the items in the apartment. Absent this evidence, the State’s theory of constructive possession, as in
Washington,
rested on defendant’s physical presence in a house where he did not reside. Based on this scant circumstantial evidence,
*664
it can not be said that “there is no reasonable possibility that the violation might have contributed to the conviction.”
State v. Lane,
New trial.
Notes
. Of the three questions asked by Officer Marbrey, only two exceeded the scope of either the on-the-scene general quеstioning or routine booking exceptions.
See e.g., Pennsylvania v. Muniz,
Under these exceptions, defendant’s statement that he lived at the residence were permissible. However, questions regarding who-else lived in or stayed at the home, and the ownership of the belongings in the home were, under the particular facts of this case, outside the scope of these exceptions.
. As noted, the burden is upon the State to show that a constitutional error is harmless beyond a reasonable doubt. The State’s brief, six pages in length, does not make one argument that the error was harmless beyond a reasonable doubt. On this basis alone — the State’s failure to shoulder its burden — we could find prejudice.