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ADVANCE SHEET HEADNOTE October 7, 2019

No. 18SA271, People v. Davis—Criminal Procedure—U.S. Constitution Fifth Amendment—Miranda Warnings—Custody—U.S. Constitution Fourth Amendment—Investigatory Stop.

In this interlocutory appeal, the prosecution challenges the trial court’s

order suppressing statements the defendant made to deputies without being given

the proper warnings under Miranda v. Arizona,

(1966). The supreme

court reverses, concluding that under the totality of the circumstances, the

defendant was not in custody for purposes of Miranda because a reasonable person

in the defendant’s position would not have felt deprived of his freedom of action

to a degree associated with a formal arrest. Further, considering the factors

identified in People v. Rodriguez,

(Colo. 1997), and People v. Ball,

,

, the court concludes that the defendant’s

detention did not escalate to an arrest in violation of the Fourth Amendment. The Supreme Court of the State of Colorado 2 East 14th Avenue • Denver, Colorado 80203

Supreme Court Case No. 18SA271 Interlocutory Appeal from the District Court El Paso County District Court Case No. 18CR703 Honorable Marla R. Prudek, Judge ________________________________________________________________________

Plaintiff-Appellant:

The People of the State of Colorado,

v.

Defendant-Appellee:

Jacob Paul Davis. ________________________________________________________________________

Order Reversed en banc October 7, 2019 ________________________________________________________________________

Attorneys for Plaintiff-Appellant: Daniel H. May, District Attorney, Fourth Judicial District Michael Fisher, Deputy District Attorney Tanya A. Karimi, Deputy District Attorney Colorado Springs, Colorado

Attorneys for Defendant-Appellee: Megan A. Ring, Public Defender Hilary Gurney, Deputy Public Defender Colorado Springs, Colorado JUSTICE MÁRQUEZ delivered the Opinion of the Court. CHIEF JUSTICE COATS dissents, and JUSTICE GABRIEL joins in the dissent.

2 ¶1 Deputies interrogated Jacob Paul Davis in the basement of his parents’ home

about an alleged sexual assault. During this questioning, Davis made

incriminating statements. He later moved to suppress these statements, arguing

they were obtained in violation of Miranda v. Arizona,

(1966). The trial

court granted the motion to suppress, agreeing that Davis was subjected to

custodial interrogation without having been given a Miranda advisement. The

People then filed this interlocutory appeal under section 16-12-102(2), C.R.S.

(2019), and C.A.R. 4.1, seeking review of the court’s suppression order. Because

we conclude that Davis was not in custody for purposes of Miranda, we reverse

the trial court’s order suppressing the statements.

I. Facts and Procedural History

¶2 Deputy testimony and body camera footage presented at Davis’s

suppression hearing yielded the following facts. At approximately 6 a.m. on

February 2, 2018, Deputy David Glenn and Sergeant Owen McCormack arrived at

Davis’s residence in response to a report of sexual assault. Davis had been living

for approximately nine months in a basement bedroom of the home, which

belonged to his father and stepmother. When the deputies arrived, the alleged

victim was in the kitchen on the main floor.

3 ¶3 Davis’s stepmother escorted the deputies to Davis’s basement bedroom.

The deputies were armed but did not have any weapons drawn. Before entering

Davis’s room, Glenn called Davis’s name several times.

¶4 After receiving no response, Glenn entered the room, while McCormack

remained in the doorway. Davis appeared to be sleeping. Standing a few feet

from the bed, Glenn shook Davis’s leg. Glenn asked Davis to sit up and began

asking open-ended questions about several topics, including the nature of Davis’s

relationship with the victim. This interaction lasted between five and seven

minutes.

¶5 McCormack then instructed Davis to get out of bed and asked him to move

out of the bedroom, explaining that “[t]hings are a little safer that way.” Davis,

who was wearing boxers and a t-shirt, asked McCormack for permission to

retrieve a pair of sweatpants; McCormack responded “sure” and retrieved the

sweatpants for him, explaining that he did not know if Davis “ha[d] any weapons

in here or anything like that.” Davis then attempted to find his glasses, and

McCormack told him the deputies would retrieve his glasses later. The deputies

accompanied Davis down a short hallway to an open area in the basement used

for gaming. Glenn instructed Davis to sit in an armchair next to the wall. Davis

was not handcuffed, nor did the deputies place their hands on him to move him.

4 ¶6 Both deputies briefly left the basement to speak with the victim, who

remained upstairs in the kitchen area. McCormack later returned to the basement

area and stood several feet from Davis’s chair. McCormack testified that he stayed

in the basement with Davis “for officer safety reasons just to make sure that

nothing happened or nobody got hurt.” For the next eight to ten minutes,

McCormack and Davis casually discussed several topics unrelated to the

investigation, including Davis’s relationship with his parents, his relationship

with his daughter, his recent divorce, and McCormack’s law enforcement career.

At one point, they talked about the gaming tables in the basement, and Davis stood

up and went over to one of the tables to remove the cover and show the table to

McCormack.

¶7 Glenn eventually returned to the basement and questioned Davis about the

alleged assault for approximately ten minutes. Glenn stood about five feet from

Davis’s chair during this questioning. He spoke in a conversational tone and used

open-ended questions. McCormack, who had remained a few feet away, twice

remarked to Davis that telling the truth was for Davis’s benefit and that he needed

to be honest with the deputies. During the questioning by Glenn, Davis stated that

he had sexual contact with the victim, including digital penetration, but contended

that it was consensual.

5 ¶8 After this questioning, Glenn returned upstairs to interview the victim

again. McCormack remained in the basement with Davis, and for the next twenty

minutes, they chatted about a range of topics unrelated to the case, including the

weather, poker, and the Denver Broncos football team. McCormack also

accompanied Davis to his bedroom and allowed Davis to rummage through his

bedding to retrieve his glasses.

¶9 When Glenn returned, McCormack explained to Davis that another deputy

had arrived to help out with interviews to “make sure we have all the appropriate

information—factual information.” McCormack then stated:

[I]f there’s anything considered probable cause to make an arrest, then obviously we’re gonna let you know on that. If not, then we’ll let you know that, too. Okay? So that’s where we are right now . . . if you’re wondering why we’re standing here, looking at you, waiting, that’s what we’re doing. Okay?

Glenn questioned Davis again for approximately six minutes.

¶10 Around this time, Deputy Bethany Gibson arrived to take over the case

because the other deputies’ shifts were ending. She later testified at the

suppression hearing that when she arrived, McCormack and Glenn “still hadn’t

made a conclusion yet on exactly what happened.” Gibson came down to the

basement to question Davis, explaining to him that she had just arrived and asking

him to start from the beginning. Like Glenn, Gibson spoke to Davis in a

conversational tone. At one point, Gibson asked to see a text exchange with the 6 victim that Davis had described. Davis asked McCormack for permission to

retrieve his phone. Both deputies accompanied Davis to his room, where he was

permitted to search through his bedding a second time and retrieve the phone. He

then showed the text messages to Gibson.

¶11 Gibson left the basement while McCormack remained with Davis. The

conversation between McCormack and Davis continued as they waited another

twenty minutes. During this time, Davis asked McCormack if he could show the

deputy a favorite Broncos jersey. McCormack allowed Davis to retrieve the jersey

from an adjoining room. Davis also asked to use the restroom but was initially

denied permission because the deputies wanted to collect his clothing as evidence.

Finally, at approximately 7:30 a.m., Gibson returned to the basement and placed

Davis under formal arrest.

¶12 Davis was charged in El Paso County District Court with two counts of

sexual assault and one count of contributing to the delinquency of a minor. He

later moved to suppress the statements he made in the basement, arguing that he

was subjected to custodial interrogation without having been given a Miranda

advisement. In response, the prosecution contended that Davis was subjected

only to an investigatory detention, not an arrest, and thus, Miranda warnings were

not required. Following a hearing, the trial court agreed with Davis and granted

the motion to suppress. 7 ¶13 The trial court began its oral ruling by noting that to determine whether

Davis was in custody for purposes of Miranda, it had to look at the totality of the

circumstances as discussed in this court’s decision in People v. Matheny,

, 465–66 (Colo. 2002). The trial court also observed that in People v. Rodriguez,

(Colo. 1997), this court identified certain factors a court must

consider in determining whether an investigatory detention has escalated into an

arrest. Ultimately, however, the trial court did not rest its ruling on a Rodriguez

analysis. That is, Davis did not argue, and the trial court did not hold, that Davis’s

detention was too long in duration to be justified as an investigative stop and

escalated into an arrest that had to be justified by probable cause.

¶14 Instead, the trial court concluded that the encounter was never an

investigatory detention but was an arrest from the outset; in other words, the court

agreed with Davis that he was in custody for Miranda purposes from the moment

he was awakened by the deputies. In reaching this conclusion, the court

acknowledged that the deputies did not display any weapons, did not threaten

Davis, and never told Davis he could not leave the basement. Nevertheless, it

concluded that, under the totality of the circumstances, Davis was in custody

because a reasonable person in his circumstances would not have felt free to leave

the basement. The court emphasized the early hour and length of the

interrogation, noting that Davis was kept in the basement for an hour and twenty- 8 five minutes. It also noted the limitations placed on Davis’s movement, focusing

on whether a reasonable person would have believed himself free to leave. The

court ultimately suppressed all statements Davis made after his first contact with

the deputies at 6 a.m. and before his formal arrest.

¶15 The People now appeal the suppression order.

II. Law

¶16 Miranda sought to address the problem of how the Fifth Amendment

privilege against compelled self-incrimination could be protected from “the

coercive pressures that can be brought to bear upon a suspect in the context of

custodial interrogation.” Berkemer v. McCarty,

(1984). Miranda

holds that the prosecution may not introduce in its case-in-chief “any statement,

whether inculpatory or exculpatory, procured by custodial interrogation, unless

the police precede their interrogation with certain warnings.” Matheny,

(citing Miranda,

). Those required warnings include advising

the suspect 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.”

Miranda,

. Given the Fifth Amendment concerns that animated the

decision, Miranda warnings are required only “when a suspect is subject to both

custody and interrogation.” Effland v. People,

(Colo. 2010). The 9 parties agree that this case turns on whether Davis was in custody during his

questioning in the basement.

¶17 In the Miranda context, “‘custody’ is a term of art that specifies

circumstances that are thought generally to present a serious danger of coercion.”

Howes v. Fields,

, 508–09 (2012). In determining whether a defendant

was in custody for purposes of Miranda, the proper inquiry is “whether a

reasonable person in the suspect’s position would believe himself to be deprived

of his freedom of action to the degree associated with a formal arrest.” People v.

Hankins,

(Colo. 2009) (quoting Matheny,

).

¶18 A trial court’s custody determination presents a mixed question of law and

fact. Matheny,

. We defer to a trial court’s findings of historical fact

and credibility so long as they are supported by competent evidence in the record.

However, we review de novo the trial court’s legal conclusion that the facts

amount to custody for purposes of Miranda. See People v. Garcia,

,

; see also People v. Minjarez,

(Colo. 2003). This

court’s analysis is not limited to the factual findings that form the basis of the trial

court’s order; it may also consider undisputed facts evident in the record. People v.

Pleshakov,

,

. In addition,

“[W]here the statements sought to be suppressed are audio- and video-recorded, and there are no disputed facts outside the recording controlling the issue of suppression, we are in a similar position as the 10 trial court to determine whether the statements should be suppressed.” Thus, we may undertake an independent review of the audio or video recording to determine whether the statements were properly suppressed in light of the controlling law.

People v. Kutlak,

, ¶ 13,

(quoting People v. Madrid,

(Colo. 2008)).

¶19 A Miranda custody assessment considers “the objective circumstances of the

interrogation, not . . . the subjective views harbored by either the interrogating

officers or the person being questioned.” Stansbury v. California,

(1994). “In making this determination, a court must consider the totality of the

circumstances under which the interrogation was conducted.” Mumford v. People,

,

. The factors a court should consider include

(1) the time, place, and purpose of the encounter;

(2) the persons present during the interrogation;

(3) the words spoken by the officer to the defendant;

(4) the officer’s tone of voice and general demeanor;

(5) the length and mood of the interrogation;

(6) whether any limitation of movement or other form of restraint was placed on the defendant during the interrogation;

(7) the officer’s response to any questions asked by the defendant;

(8) whether directions were given to the defendant during the interrogation; and

(9) the defendant’s verbal or nonverbal response to such directions.

11

(citing Matheny, 46 P.3d at 465–66). These factors are not exhaustive, and no

single factor is determinative. People v. Holt,

(Colo. 2010);

Hankins,

.

¶20 Mere detention does not deprive a person of his freedom to the degree

associated with formal arrest. Thus, although relevant to the analysis, detention

alone is not dispositive of a custody determination. See Mumford, ¶ 16,

(concluding that while the defendant was obviously not free to leave, “his

temporary detention had not escalated to the point that an objective, reasonable

person in Mumford’s position would feel restrained to a degree associated with a

formal arrest”). In other words, although an investigatory detention constitutes a

“seizure” for purposes of the Fourth Amendment, such detention does not

necessarily mean that the suspect is “in custody” for purposes of Miranda. People v.

Breidenbach,

(Colo. 1994) (citing, inter alia, Berkemer,

).

¶21 This is not to say that Miranda can never be implicated during a valid

investigatory detention. A court must examine the facts and circumstances of the

encounter to determine whether Miranda applies. Id. at 886. If a person detained

pursuant to an investigatory stop “thereafter is subjected to treatment that renders

him ‘in custody’ for practical purposes, he will be entitled to the full panoply of

protections prescribed by [Miranda].” Berkemer,

. Miranda can be 12 implicated, for example, if the police detain a suspect using a degree of force or

physical restraint more traditionally associated with “custody” or “arrest” than

with a brief investigatory detention, such as the display of a gun or the use of

handcuffs. Breidenbach,

.

¶22 In addition, we have recognized (for purposes of the Fourth Amendment)

that if an investigatory stop involves more than a brief detention and questioning,

it can escalate into a de facto arrest that must be supported by probable cause.

Rodriguez,

. In other words, “if an investigative stop continues

indefinitely, at some point it can no longer be justified as an investigative stop.”

United States v. Sharpe,

(1985). In evaluating whether an

investigative detention is unreasonable for purposes of the Fourth Amendment,

“common sense and ordinary human experience must govern over rigid criteria.”

Relevant considerations include, for example, the length of the detention; the

diligence exercised by the investigating officer in pursuing the investigation

during the detention; the extent of (and reasons for) moving the suspect from one

location to another; and whether the police acted unreasonably in failing to

recognize or pursue less intrusive means of accomplishing their objectives.

People v. Ball,

,

(citing, inter alia, Rodriguez,

); see also Sharpe,

(considering “whether the police

13 diligently pursued a means of investigation that was likely to confirm or dispel

their suspicions quickly”).

¶23 Importantly, the United States Supreme Court has “impose[d] no rigid time

limitation” on investigative stops. Sharpe,

. Rather, it has

“emphasized the need to consider the law enforcement purposes to be served by

the stop as well as the time reasonably needed to effectuate those purposes.”

III. Application

A. Davis Was Not in Custody for Purposes of Miranda

¶24 Applying these standards here, we conclude that, under the totality of the

circumstances, a reasonable person in Davis’s position would not have felt

restrained to the degree associated with formal arrest. Consequently, Davis was

not in custody for purposes of Miranda, and the trial court erred in suppressing his

statements.

¶25 The totality of the circumstances does not reflect that Davis was restrained

to the degree associated with formal arrest. True, Davis was detained for close to

an hour and a half while deputies alternated between briefly questioning him and

going upstairs to speak with the victim. Cf. Garcia, ¶ 28,

(determining that the brief nature of the police encounter at issue weighed against

a finding of custody). And a deputy also stood between Davis and the stairwell

to the main floor. Cf. People v. Sampson,

,

, 278

14 (concluding that officers standing between the defendant and the exit weighed in

favor of a finding of custody). Additionally, when Davis did not respond to his

name being called several times by Deputy Glenn, he was roused from bed and

questioned, see Commonwealth v. Zogby,

(Pa. Super. Ct. 1997)

(concluding that waking defendant and commanding him to go outside was

“highly intrusive” and suggested “a will on the part of the police officer that would

not be denied”), and isolated from family and friends during his questioning, see

Minjarez, 81 P.3d at 352–53 (reasoning that one of the concerns animating Miranda

was the impact of interrogation on “individuals who are isolated and deprived of

contact with friends and family” in police-dominated settings).

¶26 But “[w]hile some of the[] circumstances” in this case “may suggest custody,

the totality does not.” Garcia, ¶ 37,

. Based on the trial court’s factual

findings and undisputed facts in the record, we conclude that the neutral location,

the lack of force or physical restraint, and the conversational tone of questioning

indicated that a reasonable person in Davis’s position would not have felt

restrained to the degree associated with formal arrest at the time he made the

challenged statements.

¶27 We have previously emphasized that the setting in which police contact

occurs is significant. “Location matters . . . because it can affect a suspect’s peace

of mind, and thus her ability to withstand psychological compulsion . . . .”

at 15 ¶ 22,

. Thus, a neutral or familiar location such as the suspect’s

home can weigh against a finding of custody. Id. at ¶ 21,

; see also

Mumford, ¶ 19,

(noting that “neutral area” where questioning

occurred—the curb directly in front of defendant’s home—weighed against a

finding of custody); People v. Klinck,

(Colo. 2011) (noting that

“familiar location” of the encounter—the front porch of defendant’s girlfriend’s

house—did not support a finding of custody).

¶28 We note that police presence—even when unwanted by the defendant—

does not automatically render an otherwise neutral or defendant-friendly location

police dominated. In Garcia, for example, the defendant made several inculpatory

statements to officers who had forced their way into her home to perform a welfare

check. ¶¶ 1–2,

. The defendant made some of the statements in the

stairwell of her home and others in her front yard. Id. at ¶¶ 9, 11–12,

. We concluded that the familiarity of these settings weighed against a finding

of custody, even though the defendant had not invited the officers into her home.

Id. at ¶¶ 27, 29,

.

¶29 Here, the mere presence of police in Davis’s home did not render it a police-

dominated setting. The residence where Davis was interrogated belonged to his

father and stepmother, and Davis had been living there for approximately nine

months. True, questioning that occurs in a home or bedroom can be custodial 16 interrogation for purposes of Miranda. For example, in Orozco v. Texas,

, 325–27 (1969), the Supreme Court concluded that a suspect interrogated by

four officers in his bedroom at 4 a.m. was “in custody” and thus should have been

given Miranda warnings. However, the Supreme Court did not evaluate the

circumstances that established custody in that case; rather, it rested its custody

determination entirely on officer testimony that the suspect was “under arrest” at

the time he was questioned.

. Thus, Orozco offers little guidance.

¶30 Here, although Davis was wakened by the deputies in his bedroom, the

deputies entered the bedroom only after Davis failed to respond to them calling

his name from the hallway. After asking Davis to move out into the main

basement area, the deputies conducted the bulk of the questioning (including the

questioning that elicited the statements at issue here) in this living area, a neutral

and familiar location, one that weighs against a finding of custody.

¶31 Another “well-recognized circumstance tending to show custody is the

degree of physical restraint used by police officers to detain” a person. Breidenbach,

. But in this case, Davis was never physically restrained. The

deputies did not make physical contact with him at all, save for the initial shake of

his leg to awaken him, and he was not handcuffed until his formal arrest. The

deputies instructed Davis to move from his bedroom to the basement game room,

but did so for officer safety reasons. And they initially did not let him use the 17 restroom. On the other hand, they twice allowed Davis to return to his bedroom

and rummage around in his bedding to retrieve his eyeglasses and his phone.

Davis also went to his closet to retrieve a Broncos jersey to show McCormack.

¶32 We have held that suspects subjected to much more invasive restraint than

Davis were nonetheless not in custody for purposes of Miranda. In Mumford, for

example, the defendant was detained by officers who briefly drew their weapons

during their initial sweep of his home. ¶ 8,

. The defendant was

interrogated while he sat, at the officers’ direction, on the curb outside his house.

Id. at ¶ 19,

. Even under those circumstances, we concluded that

the defendant was not restrained to the degree associated with formal arrest. Id.

at ¶ 16,

. By contrast, here, the deputies never drew or displayed

their weapons. And although the deputies kept Davis in the basement while they

questioned the alleged victim upstairs, they allowed Davis to move around the

basement gaming area and return to his bedroom to retrieve his glasses and his

phone, albeit under supervision. We conclude that Davis’s restriction to the

basement under these circumstances did not present “the same inherently coercive

pressures as the type of station house questioning at issue in Miranda.” Howes,

.

¶33 We have also considered an officer’s tone of questioning particularly

relevant to a custody determination. In Minjarez, the defendant was not physically 18 restrained, yet we concluded he was in custody for purposes of Miranda, based

largely on the tone of the officer’s questioning—a tone that, in combination with

other factors, created an atmosphere suggestive of formal arrest. 81 P.3d at

356–57. There, “[t]he interrogating officer’s questions provided all of the details

of the incident and were designed essentially to force agreement from the

defendant.” Id. at 356.

¶34 In contrast, the body camera footage in the record here reveals that the mood

of Davis’s interrogation was calm and conversational. The record does not

support the trial court’s conclusion that the questioning was conducted in an

“accusatory mood.” The interrogating deputies asked detailed questions,

encouraged Davis to tell the truth, and confronted him with contradictory

evidence. However, “merely confronting a suspect with the evidence against him

. . . does not, by itself, constitute an infringement on his liberty, much less the kind

of infringement associated with a formal arrest.” People v. Figueroa-Ortega,

,

. The deputies’ questions were generally open-

ended and in a conversational tone of the exact kind we have found to weigh

against a finding of custody. See

The deputies’ few pointed questions and their

exhortations to be honest did not render the overall mood of the interrogation

aggressive or accusatory. Indeed, the record reflects that for the significant

majority of Davis’s time in the basement, the discussion revolved around matters 19 wholly unrelated to the investigation: Davis’s divorce, his father’s poker nights,

and the Denver Broncos.

B. Davis’s Detention Did Not Violate the Fourth Amendment Under the Factors in Rodriguez

¶35 Finally, to the extent the trial court’s reference to Rodriguez in its oral ruling

suggested concern that the duration of Davis’s detention escalated the encounter

into an arrest requiring probable cause, we note that Davis did not raise such an

argument, nor did the trial court ultimately rest its ruling on such grounds.

Rather, Davis contended that he was in custody “from the moment [he] was

contacted,” and the trial court agreed, suppressing all the statements that Davis

made after he was roused. In any event, even considering the factors we have

identified in Rodriguez and Ball, we conclude that Davis’s detention did not run

afoul of the Fourth Amendment. See Rodriguez,

(holding that

relevant factors include the length of the detention; whether the officer diligently

pursued the investigation during the detention; whether the suspect was required

to move from one location to another; and whether there were alternative, less

intrusive means available that police acted unreasonably in failing to recognize or

pursue); see also Ball, ¶ 9,

(same).

¶36 First, the duration of the detention here, although certainly longer than a

typical investigatory stop, did not exceed a reasonable period. As noted above,

20 the brevity of such an invasion of an individual’s Fourth Amendment interests is

an important factor, but the Supreme Court has expressly refrained from imposing

any “rigid time limitation” on investigative detentions. Sharpe,

.

The Court instead has emphasized consideration of the law enforcement purposes

to be served by the stop and the time reasonably needed to effectuate those

purposes.

Second, nothing in the record indicates that the deputies did not

diligently pursue their investigation of these allegations throughout the time

Davis was detained. Indeed, Glenn explained to Davis that another deputy had

arrived to help with interviews to make sure they had all the appropriate

information. Here, the deputies were investigating allegations of sexual contact,

including whether such contact was consensual. Glenn also indicated to Davis

that the deputies had not yet made any probable cause determination. Cf.

Stansbury,

(an officer’s knowledge or beliefs may bear on custody

if they are conveyed to the individual being questioned). Third, to the extent Davis

was asked to move from the bedroom to the basement gaming area, the record

indicates that this was done for officer safety reasons. Fourth, we cannot say under

the facts here that the deputies acted unreasonably in failing to recognize or

pursue less intrusive means of conducting their investigation. The deputies’

decision to keep Davis and the alleged victim in separate parts of the house during

their investigation was justified under the circumstances. In sum, we cannot 21 conclude that suppression of Davis’s statements is warranted on grounds that his

detention violated the Fourth Amendment.

IV. Conclusion

¶37 Here, the trial court incorrectly concluded that Davis was under arrest and

thus “in custody” for purposes of Miranda. Examining the totality of the

circumstances, we conclude that Davis was not in custody during his pre-arrest

interrogation, and therefore Miranda warnings were not required. We reverse the

trial court’s suppression order.

CHIEF JUSTICE COATS dissents, and JUSTICE GABRIEL joins in the dissent.

22 CHIEF JUSTICE COATS, dissenting.

¶38 I write separately not only because I believe the analysis of the district court

in this case, rather than that of the majority, is the better one, but perhaps even

more importantly, because I believe the detention and interrogation of the

defendant in this case bring into focus an important but little-discussed distinction

concerning “custody” as contemplated by the Fourth Amendment’s protection

against unreasonable seizures of the person, on the one hand, and the Fifth

Amendment-related requirement for prophylactic warnings prior to interrogation,

on the other. Because I also believe, quite apart from any nuanced distinction the

majority may suggest between a functional arrest and a formal arrest, that the

record of the detention and interrogation in this case simply compels the

affirmance of the district court’s suppression order, I respectfully dissent.

¶39 As the district court clearly understood, a person has been seized, and is

therefore in custody within the contemplation of the Fourth Amendment, as soon

as the exercise of police authority is such as to make a reasonable person in his

situation feel no longer free to leave or to ignore police direction. See People v.

Fields,

, ¶ 11,

(explaining Florida v. Bostick,

(1991), and Terry v. Ohio,

(1968)). But the court’s findings and

conclusions also made clear its understanding that this minimal level of seizure,

permitted upon no more than reasonable articulable suspicion and designated an 1 “investigative stop,” does not imply, in and of itself, that subsequent questioning

by the police must be preceded by a waiver of the so-called Miranda rights. See

People v. Ball,

, ¶¶ 15–16,

, 585–86 (explaining Berkemer v.

McCarty,

, 441–42 (1984), and People v. Breidenbach,

,

885–86 (Colo. 1994)). As the district court expressly recognized, a waiver of

Miranda rights need not precede interrogation unless and until the liberty of the

detained person has been infringed upon to a degree associated with a formal

arrest, the higher level of Fourth Amendment seizure of a person recognized in

the jurisprudence of the United States Supreme Court, which level of seizure can

be justified only upon probable cause to believe the detainee has committed a

crime. Gerstein v. Pugh,

, 111–12 (1975); Ball, ¶¶ 15–16, 407 P.3d at

585–86. Finally, the district court recounted and evaluated the various factors that

we and the United States Supreme Court have previously identified as relevant to

the determination whether a person has been detained by the police at all, and if

so, whether that person’s liberty has been infringed upon to a degree associated

with an arrest rather than a mere stop. See People v. Figueroa-Ortega,

,

(explaining United States v. Mendenhall,

(1980);

People v. Matheny,

, 465–66 (Colo. 2002); and People v. Pancoast,

(Colo. 1982)).

2 ¶40 Although we have held that Miranda warnings may sometimes be required

under extreme conditions of detention constituting no more than an investigative

stop, see, e.g., Breidenbach,

, the question remains whether Miranda

warnings are necessarily required prior to interrogation during a detention that has

progressed to a stage at which it can no longer be justified upon reasonable

suspicion alone, but rather only upon probable cause to support an arrest. Unlike

the majority, which appears reluctant to directly answer that question and instead

finds that, in any event, the detention in this case did not rise to the level of an

arrest until some hour and a half after the officers began holding and interrogating

the defendant and finally announced to him that he was under arrest, I believe the

answer to that question to be an emphatic “Yes.” See, e.g., United States v. Santillan,

(2d Cir. 2018) (asking whether the defendant’s statements should

have been suppressed on grounds that he was subject to de facto arrest but was

not given Miranda warnings); United States v. Rabbia,

(1st Cir. 2012)

(stating that if a stop evolves into a de facto arrest, a suspect is entitled under the

Fifth Amendment to Miranda warnings before being interrogated); United States v.

Trueber,

, 92–93 (1st Cir. 2001) (“The central issue in this case is whether

an otherwise valid Terry stop escalated into a de facto arrest necessitating the

administration of Miranda warnings.”). Furthermore, I consider both the question

and answer to be of substantial import to the district court’s ultimate ruling in this 3 case. While I, like the district court, would find that waking someone up and

rousting him out of bed, in his underwear, at six o’clock in the morning;

preventing him from getting fully dressed or putting his shoes on; denying him

access to his glasses and the use of a bathroom; and isolating and interrogating

him in a basement, while periodically comparing his answers to those of his

accuser upstairs, constitute more than sufficient grounds to establish, at the very

least, custody for purposes of interrogation, I would also find that detaining

someone under these conditions for ninety minutes can only be characterized as

an arrest.

¶41 Unlike some infringements on a person’s liberty, such as a show of weapons

or the use of handcuffs, which are typically associated with an arrest but can for

various reasons, including especially officer safety, nevertheless be permissible

incidents of an investigative stop, Breidenbach,

n.7, the length of

such a stop may not exceed the brief time necessary to identify the suspect and

accomplish limited investigative objectives. Although some jurisdictions and

codes have done so, e.g., Barrios-Lomeli v. State,

(Nev. 1998)

(interpreting Nevada’s sixty-minute statutory time limit for temporary detention);

Model Code of Pre-Arraignment Procedure § 110.2(1) (Am. Law Inst. 1975)

(placing an absolute limit of twenty minutes on investigative detentions), neither

this court nor the Supreme Court has ever specified an outside limit on the length 4 of a detention permissible upon reasonable suspicion alone. Nevertheless, state

and federal courts alike have regularly held that in the absence of emergent

probable cause, which would effectively justify any longer detention as a full

arrest, Ball, ¶ 11,

(explaining Sibron v. New York,

,

66–67 (1968), and People v. Lagrutta,

, 581–82 (Colo. 1989)), or new

discoveries providing articulable suspicion justifying further detention for

different reasons altogether,

that limit is necessarily measured in minutes, not

hours. In holding, for example, that the line between an investigative detention

and an arrest had not been crossed with regard to a thirty-minute detention, the

Second Circuit Court of Appeals noted: “The agent made speedy and appropriate

inquiries in a reasonable way. We decline to hold that a thirty minute detention

based on reasonable suspicion is, per se, too long.” United States v. Tehrani,

(2d Cir. 1995) (comparing with United States v. Sharpe,

, 687–88

(1985) (twenty minutes); United States v. Mondello,

(9th Cir.

1991) (thirty minutes); United States v. Nurse,

, 24–25 (D.C. Cir.

1990) (twenty to thirty minutes); United States v. Knox,

, 290–91 (6th

Cir. 1988) (thirty minutes); United States v. Davies,

(7th Cir. 1985)

(forty-five minutes)).

¶42 Similarly, relying on United States v. Place,

(1983), and 4

Wayne R. LaFave, Search and Seizure § 9.2(f), at 58–65 (3d ed. 1996), for the notion 5 that the brevity of an intrusion is an important factor in determining whether an

investigative stop has escalated into an arrest, this court found that a ninety-

minute traffic stop could not be justified as an investigative stop. See People v.

Rodriguez,

(Colo. 1997) (comparing Sharpe,

(twenty-minute detention was reasonable); with Place, 462 U.S. at 709–10 (ninety-

minute detention of suspect’s luggage was “prolonged” and exceeded scope of

stop); and People v. Hazelhurst,

(Colo. 1983) (twenty- to thirty-

minute detention exceeded scope of stop); and People v. Mickens,

(Colo. App. 1986) (one-and-one-half-hour detention exceeded scope of stop)).

In light of abundant existing Fourth Amendment precedent to the contrary, I fail

to see how it can realistically be argued that the defendant was not subjected to a

de facto arrest and therefore was never under arrest until an arrest was formally

announced. The only reasonable question before the court would seem to be when

along this continuum of detention the arrest occurred, and for purposes of any

statements the defendant made without the benefit of Miranda warnings, at

precisely what point in that continuum his liberty had been infringed on to a

degree associated with arrest rather than a mere investigative stop.

¶43 It is not entirely clear to me what the majority intends by noting that the

district court did not rest its ruling solely on the length of the detention both

because the question whether the detention constituted a stop or an arrest is clearly 6 a mixed question of fact and law for this court, see Matheny,

, and

because the ultimate length of the detention was clearly relevant to a

determination of its nature and purpose. After setting out the controlling law and

its factual findings, not least being that the interrogation lasted fully an hour and

twenty-five minutes, the district court expressly found it to have been an arrest

rather than being in the nature of an investigative stop—from its very inception at

6 a.m. Defense counsel expressly argued and the district court expressly found

that all of the defendant’s statements were taken in violation of Miranda for the

reason that the detention constituted a restraint on the defendant’s freedom

amounting to an arrest virtually from its inception.

¶44 Rather than defense counsel or the district court, it appears to be the

majority that considers the question of custody in the Miranda context to turn on

more than the extent to which a detainee’s liberty has been restrained. Perhaps

because the factors we have identified as relevant to the question of custody for

purposes of custodial interrogation overlap so heavily with the factors designed

to answer the question whether an encounter between a citizen and the police is

consensual or is in fact a stop for investigative purposes, see Figueroa-Ortega, ¶ 8,

, the majority’s mechanical analysis of those same factors for

purposes of Miranda warnings is similarly heavily oriented toward evaluating the

pressure a reasonable suspect would feel to comply with police demands for 7 information, rather than whether he could reasonably expect to be released after

brief questioning. See People v. Polander,

(Colo. 2001). From its

analysis, it seems clear to me that the majority conflates “custody” with

“voluntariness.” Unlike the majority, I do not believe the “custody” component

of “custodial interrogation” turns on whether the interrogation techniques of the

police have actually overborne the detainee’s will, and I think it clear that such an

understanding would not be sanctioned either by the Supreme Court or the prior

interpretations of this court.

¶45 And even if it were, the majority’s virtually dispositive reliance on its

characterization of the interrogation as having taken place in a “neutral”

environment strains credulity. To my mind, it would be difficult to conceive of a

more threatening and psychologically disorienting experience than to be accosted

by police officers while sleeping in one’s own bed and ordered about while being

deprived of one’s glasses and being forbidden the use of a bathroom until

sometime later, after he had given up his underwear. Even if the coerciveness of

interrogation techniques rather than the degree of force used to restrain his liberty

were the triggering condition for requiring the prophylactic Miranda warnings, I

fail to see how being isolated by one’s captors in the basement of the very people

who allowed them access in the first place could reasonably be considered a

“neutral,” or less coercive, atmosphere for interrogation than, for instance, a patrol 8 car. Cf. Berkemer,

n.36 (contrasting brief questioning in full view of

passing traffic with subjecting suspect to persistent questioning in the squad car,

as occurred in United States v. Schultz,

(D. Md. 1977)).

¶46 Because I believe the district court correctly concluded that the defendant

was effectively under arrest from the moment the police barged unbidden into his

bedroom and woke him up, and therefore his un-Mirandized responses to their

interrogation had to be suppressed, I respectfully dissent.

I am authorized to state that JUSTICE GABRIEL joins in this dissent.

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