*1 1158, maj. op. at specificity, see in Benson modified here, "update" the term As used Benson, limited the the Council in contrast the words rather than word "Committee" taken with might be seope of action the Council Site," suggesting thus "Mill Holding work. Committee's respect matters concern- housekeeping would discuss to im- it chose the limitation than the Council rather the Committee of ing the work not, way, Additionally, restrict does on itself pose itself. project the TOU its business ability to conduct pro- the Council's item agenda description of specific Rather, consis- which is "update," manner." "reasonable to the word content vided 24-6-402(2)(c) and section both with tent matters. specified indicated not Benson. work was the Committee's Finally, while pro- the TOU of the consideration limited to January 8th of the the notice Because a divisive project was
ject, the TOU public that fairly inform the meeting did in the forefront issue publicized on the formal action would take the Council Thus, as used activities the Committee's I dissent. project, TOU limitation, a term of here, "update" on the information which, together with read meeting, Committee next Mill Site the TOU on that a decision
strongly implied Consequently, an imminent. was not
project community did not of the
ordinary member take would the Council have fair notice Indeed, project. on the TOU formal action Colorado, of the State The PEOPLE project TOU proponents none of Plaintiff-Appellant. meeting. January 8th attended entirely consistent conclusion This full no providing requirement Benson's ELMARR, Kevin Franklin ability public with "the interfere tice not Defendant-Appellee. reason their duties perform officials 07SA379. No. Benson, Colo. manner." able majority, re According to the P.2d at 653. Colorado, Supreme Court of than include more notice that the quiring En Banc. in effect Update" would Committee "Mill Site conducting busi April from 2008. Council prevent would and thus manner in a reasonable ness 1158. How maj. op. at Benson.
violate of Benson
ever, majority's discussion the amendment account take into
fails to 24-6-402(2)(c), Benson adopted after
section of a decided, a notice requiring that "[the and that posted meeting be
public informa agenda specific ... include
posting 142, see. ch. possible." See
tion where 24-6-402(2)(c), Laws Sess. 1991 Colo. § amendment, the statute Following this require, advance does not
encourages, but going to be matters are what as to
planning meeting. public at a
transacted "up-
Here, indicated the Council survey to funding of a concern
date" replace- by the Committee conducted
be Consequent member. of a Committee
ment notice here exceeded the notice
ly, while
Mary Lacy, T. District Attorney, Twenti- District, eth Judicial William F. Nagel, Assis- tant Attorney, Boulder, District Colorado, Attorneys for Plaintiff-Appellant. Douglas Wilson, K. Colorado State Public Defender, Johnson, Kristin Deputy State Defender, Public Collins, Nicole Deputy Defender, State Boulder, Public Colorado, Attorneys for Defendant-Appellee. Justice RICE Opinion delivered the Court.
In this interlocutory appeal pursuant taken 4.1, to C.A.R. we review an order from the Boulder County District Court suppressing statements the defendant made in response interrogation. We find that trial court properly suppressed the defen- dant's statements because the defendant was in custody interrogated, and it con- De- at the Sheriff's arrived The detectives Mi- proper receive did not that he ceded base- garage through the partment interro- custodial warnings before randa open to the ment, a secure area which is affirm therefore gation. We an eleva- Elmarr into They escorted public. remand order suppression Department De- the Sheriff's that led to tor proceedings. *3 open to the Bureau, also not which is tective to recall unable were Witnesses public. History Procedural Facts and I. before enter- searched Elmarr was Fer- May Detectives Sunday, On Epp testified Captain building, but ing the Sheriff's Boulder Haugse of the and guson persons for procedure it was standard that Long- and Officer Stiles Department transported. patted down before to be Defendant visited Department Police mont testimony, the trial court on this Based inform home to Elmarr at his Franklin Kevin subjected pat- Elmarr was that found ex-wife, Murphy, was Carol his him that at the Sheriff's upon arrival search down According to the day before. found dead that also found The trial court Department. court, detec- testimony before inter- placed in a closed then Elmarr was uniform, weapons and their not tives were feet, by and measuring ten seven room view uniform, inwas Stiles holstered. Officer were returned. until officers stay there told of Elmarr's a friend more as present but was Hopper subse- Epp and Lieutenant Captain of death. notification in the family to aid in that inter- Elmarr interrogated quently Epp and officers-Captain other Two El- interrogation, During the room. view El- at arrived Hopper-later Lieutenant wall, against seated marr was police car unmarked in another home martr's Hopper were Lieutenant Epp and Captain Elmarr, they but there seen and were The officers the door. in front of seated stayed outside. the trial court casually, but dressed were weapons carrying their they that were found Haugse spoke Ferguson and Detectives suppres- testimony at the according to the Elmarr dis- and at his home Elmarr with Though the interview hearing. sion his ex-wife with he had visited that closed it, if could recall no one a lock on had door dead, had and she was day before room. was in the Elmarr locked while it was motorcycle. his a ride on her taken disclosure, Fer- Detective Shortly never after testified Witnesses questions for had more directly physically guson said or otherwise handcuffed accom- mind him, him if he would restrained, and asked Elmarr ever told but no one Department them to Sheriffs not under panying that he was free to leave ques- further Justice Center audio- and the Boulder interrogation The arrest. recording shows detectives agreed. The video-taped, and tioning; Elmarr to the Sheriff's ad interrogation Elmarr drove Epp began his Captain car, to talk to Elmarr not have that he did with vising Elmarr unmarked their pro- not did The detectives right seat. to remain the back had a that he police, driving himself option of vide Elmarr that incriminat silent, anything he said handcuffed. down, Elmarr was not had that he the station. be taken him would ed Epp then attorney.1 Captain an right Depart- the Sheriff's During the drive to then. talk to them if Elmarr wanted asked that he had ment, Elmarr volunteered "sure," began and then answered Elmarr conversa- in his earlier entirely truthful been he saw his ex- time the last speaking about detectives, provided with the tion wife. meeting his regarding his information Elmarr questioned Epp then Captain found dead. day she was ex-wife his meeting with last of that the details about say anything while did not The detectives rather Epp spoke Captain Though ex-wife. the car. not afford attorney appointed he could if Epp's pur- have an Captain found that trial court 1. The finding challenge on one; People do not warning because was deficient ported Miranda appeal. could that Elmarr the advisement not include did slowly softly, began he soon expressing over, stated the interview was opened the his doubts about story. door, Elmarr's For in- and left the They room. testified that stance, early in the Captain Epp interrogation the entire approximately lasted Elmarr, hope you're told "I telling me fifty minutes. truth...." inspected Later he what he However, Elmarr remained in the Sheriffs thought were scratches on Elmarr's arms. Department. recording shows that he Approximately halfway interview, into the kept in the interview room period for a Hopper Lieutenant took time, over much of the after which one of the officers re- questioning, and his tone was aggres- more turned and asked him if he would like to take sive. He asked if Elmarr thought ever polygraph test. Elmarr demurred and ex-wife; hurting his why say witnesses again stated he wanted to talk to attorney. they saw his motorcycle ex-wife on a match- The officer wait, left. After yet a further *4 ing place Elmarr's near the body where her another officer entered room, the interview found; was and whether his ex-wife was "all stated that he wanted to take photo- some right" the last time he saw her. Lieutenant Elmarr, graphs of and if asked Elmarr would Hopper again asked why Elmarr initially he mind removing his pictures, clothes for those lied when house, interviewed at his asking, adding, really "You don't have a right choice you lying "Were you because were afraid now...." complied, Elmarr after which he you that would be asked, incriminated more and "When I get do go to home?" more?" He stating, followed "You need responded, officer here, "Shortly hope." I to think about some of these pretty answers Elmarr then asked to make some calls to his hard," prompting Elmarr to respond, family "It left, and the officer returning later to you seems to me like guys trying say I escort Elmarr out of the interview room to did it." Hopper Lieutenant then continued Afterwards, make his calls. Elmarr was es- his questioning, telling Elmarr that story his corted back into room, the interview and in "just accurate," was warning and him videotape one can hear the door close lyin' "don't be to us now. Don't again. be fool again Elmarr long asked how enough barriers, to build goin' it's there, crumble told, would be and was "At least until right ya." Later, down on Elmarr repeated your lawyer calls." wait, After a further that he felt he was murder, accused of attorney Elmarr's entered the interview and "[Yjou've Lieutenant Hopper answered, room and videotape ended, almost an lied already.... to us yourself Put in our hour Captain Epp after and Lieutenant Hop- place. What you, would what you per had terminated their formal interroga- think you if were us?" tion.
The recording also shows that near
Captain Epp testified that Elmarr was "al-
end of
interrogation,
which lasted almost
lowed to leave" after he consulted with his
hour,
Captain Epp
question
resumed his
attorney. Elmarr was not charged with a
ing,
Elmarr,
telling
just get
"I
feeling
crime until
twenty years later,
almost
when
you
are holding something
back."
in January 2007 he was
charged
arrested and
When Elmarr wondered aloud whether he with
degree
first
murder
for the murder of
get
lawyer
should
protested
that he
his ex-wife Carol Murphy. Elmarr moved
truth,
was telling
Captain
Epp respond
the trial court
suppress
the statements he
ed, "Well, I'm not sure.
got
I've
reason to
made to
twenty years earlier
in his
believe that something,
points
that some
home,
here
in the
car on
way
you're
not." Shortly thereafter Lieuten
Department,
Sheriffs
and in the Sheriffs
ant Hopper explicitly asked Elmarr
Department
whether
interview room. The trial court
ex-wife,
he killed his
and Elmarr denied it.
declined
suppress
the statements made at
said,
Elmarr
then
"I think I would like to Elmarr's
car,
home and
in the
talk to a lawyer." At
point
this
the officers
Elmarr does not challenge
rulings
those
on
People
2. The
conceded that this was a
rogation
sufficient
should
point.
have ceased at this
right
invocation
to counsel,
and inter-
interrogated
custody when
inwas
suppressed
However,
trial court
appeal.
Accordingly, we
Department.
at the
made
Elmarr
the Sheriff's
the statements
all
order and
suppression
trial court's
they were
affirm
finding that
Department,
Sheriff's
consistent
proceedings
remand
interrogation.
custodial
product
all the
opinion.
with
Elmarr
dispute
no
there was
Because
on
focused
court
the trial
interrogated,
was
Review
A. Standard
at the
custody while
inwas
Elmarr
whether
that El-
concluding
determination
court's
A trial
Department.
Sheriffs
court
custody, the
custody
is a mixed
indeed
suspect
marr was
(1)
Elmarr
findings:
Matheny,
following
fact.
made
of law and
question
Thus,
(Colo.2002).
arrival
we defer
pat-down search
subjected to
facts,
(2)
findings
of historical
Department;
at the Sheriff's
However,
deficient) Miranda-type
(albeit
Id.
record.
by the
supported
if
provided
is in
suspect
of whether
legal question
given when
typically
de novo
warnings
review
in a seven-
(3)
placed
facts,
together, establish
taken
Elmarr
custody;
those
stay
interrogated.
told to
when
suspect
by-ten-foot
(4)
returned;
Elmarr
Id.
the officers
until
there
minutes
fifty
for at least
interrogated
in
case, the Sheriff's
In this
(5)
Epp
Captain
weapons;
carrying
officers
video, and audio-
*5
Elmarr was
terrogation of
in
involved
was
Elmarr
that
likely suspected
relevant
facts
additional
taped, but
attempting
was
murder and
Murphy's
Carol
accord
custody were determined
question
him;
from
incriminating statements
to elicit
trial court.
the
testimony before
ing to
Hopper used
(6)
Lieutenant
Epp and
Captain
court's determina
Thus,
trial
defer to the
we
El-
upon
technique
"good-cop-bad-cop"
record,
sup
if
in that
facts
disputed
tion
or
(6)
handcuffed
never
marr;
Elmarr was
not
However,
analysis is
our
Id.
ported.
restrained,
told he
never
but was
overtly
the
that were
facts
by only those
constricted
court
Accordingly,
the
to leave.
free
order;
also
trial court's
subject of the
subjected to custodial
Elmarr was
that
in the
evident
undisputed facts
the
consider
Miranda
proper
without
interrogation
Valdez,
See
record.
waiver,
all statements
that
such
warning and
("When
facts
controlling
(Colo.1998)
were
waiver
Miranda
purported
after
facts
of those
legal effect
undisputed,
purp
impeachment
except for
inadmissible
subject
law which
question
constitutes
oses.3
review.").
to de novo
Analysis
II.
Findings
Factual
Trial Court's
The
B.
Peo
interlocutory appeal,
In their
by the Record
Supported
Are
trial court's
we reverse
request
that
ple
the trial
argue that
first
People
They
statements.
of Elmarr's
suppression
supported
not
findings are
factual
court's
custody when
in
not
Elmarr was
argue that
People chal
Specifically,
the record.
Depart
interrogated at the Sheriff's
he
Elmarr
findings that
court's
the trial
lenge
made errone
court
ment,
the trial
and that
search
pat-down
subjected to a
irrelevant
considered
findings and
factual
ous
that
Department,
the Sheriff's
arrival
findWe
reaching its conclusion.
evidence
stay in the
to
directed
erroneously considered
court
the trial
and that
interrogated,
waiting
be
to
in deter
subjective intent
police officers'
Hopper both
Lieutenant
Epp Captain
custody, but
Elmarr was
mining whether
them.
weapons on
had
findings are
factual
other
court's
People's
by the
persuaded
are not
We
that those
hold
record. We
by the
supported
suppres-
at the
The witnesses
arguments.
evi
undisputed
findings, coupled
re-
contradictory evidence
gave
hearing
Elmarr
sion
record,
establish
in the
dence
challenge
voluntarily;
does
Elmarr
made
ad-
were
statements
court found
The trial
3.
appeal.
ruling on
they were
impeachment because
missible
garding
exactly
if or
where Elmarr waited
and mood of
interrogation;
any
whether
being
before
interrogated,
and whether
restraint or
placed
limitation was
on the sus
weapons
officers had
persons
on their
during
pect's
during
movement
interrogation;
interrogation;
the trial
properly
court
response
officers'
suspect's
of the
exercised its discretion in resolving
questions;
those
given
directions were
disputes.
factual
People
Traubert,
See
v.
suspect
during
interrogation;
and the
822, 827,
(1980).
Colo.
608 P.2d
345-46
suspect's verbal
responses
or nonverbal
There is no basis to overturn
findings.
those
such
Matheny,
directions.
Thus,
custody question.
we
the
conclude there was
We
sufficient evi-
therefore review
dence in
de novo
the
reenrd to
operative
establish the
court's other factu
al
findings,
facts as found
the
and the undisputed
trial court.
evidence in
record,
the
establish that Elmarr was in cus
C. Elmarr
Custody
Was in
When
tody.
Matheny,
See
46
(perform
P.3d at 468
-
Interrogated
He Was
ing
analysis
same
and ignoring trial court's
factors).
reliance on
For
purposes
of
determining
whether Miranda warnings
required,
a
analysis
guided
Our
is
precedent con
suspect
is in custody when his or her "free
sidering somewhat analogous facts. For in
dom of action is curtailed to a 'degree
associ
stance,
in
Beheler,
officers
California
ated with formal
arrest.'"
v. Polan
asked
suspect
the
accompany
to
them to the
der,
698,
(Colo.2001)
41 P.3d
station,
police
705
transported
there,
(quoting
him
in
McCarty,
Berkemer v.
420, 440,
468 U.S.
104
him
formed
arrest,
was not under
and
3138,
(1984)).
S.Ct.
82 LEd.2d 317
In
as
questioned
him for less than thirty minutes
sessing
question
the
custody,
we consider before he voluntarily
police
left the
station.
such
time,
factors as
1121, 1122,
place,
463 U.S.
the
3517,
purpose
and
103 S.Ct.
77
of the interrogation;
persons
the
present
(1983).
L.Ed.2d 1275
The court found that
during the interrogation;
the words the offi
these facts established that
suspect
was
spoke
cers
to
suspect;
the officers' tone
not in custody.
1126,
Id. at
103 S.Ct. 3517.
general
voice
demeanor;
and
length
Similarly,
Mathiason,
in Oregon v.
the offi-
provide a neat
not
does
Precedent
come to
suspect to
asked
cers
hand, and
deciding the case
suspect drove
for
formula
interviewed.
to be
station
as each
no such formula
can be
there
immediately told
indeed
station,
was
to
himself
patterns
he was
arrest,
told that
novel factual
present
not under
case will
he was
for
crime,
provided
and interviewed
have
in a
We
suspect
addressed.
previously
a
closed
minutes behind
thirty
rules,
the one
On
approximately
however.
general
some
he left
interview
in an
one
warning
doors
hand,
have heeded
493-94,
492,
ques
voluntarily.
429 U.S.
"simply because
custody
station
is not
(1977). Again, the
L.Ed.2d
S.Ct.
house."
station
place in the
tioning takes
custody.
not in
suspect was
court found
711;
Mathiason,
see
97 S.Ct.
429 U.S. at
came to
711. We
97 S.Ct.
Id. at
hand,
the other
at 468. On
Matheny, 46 P.3d
Matheny,
the sus
where
conclusion
same
"free
suspect is
that a
statement
an officer's
police station
to the
come
asked to
pect
that an
to establish
sufficient
is not
to leave"
and the
interviewed,
himself
drove
to be
non-custodial,
all the exter
when
interview is
station,
to
was escorted
to
police officers
contrary.
to the
appear
cireumstances
nal
to
room,
was free
told he
an interview
at 357.
Minjarez, 81 P.3d
arrest,
then was
and
not under
and
leave
a close
presents
and a
at hand
Though
hour
the case
approximately
for
interviewed
456-57,
custody
inwas
P.3d at
that Elmarr
we find
question,
half.
in the Sheriff's
by officers
interrogated
however, we found
Trujillo,
to
fact leads us
No one
in 1987.
he was
custody where
suspect was
a
totality
conclusion,
rather the
but
for an
station
come to
to
asked
a custodial
to create
combine
cireumstances
station;
to the
himself
drove
to
asked
Elmarr was
Though
atmosphere.
free
arrival,
told he
never
he was
to the station
police officers
accompany
arrest,
aceu-
asked
under
or not
to leave
not neces-
question does
questioning, such
half,
hour and
over an
satory
questions
could
voluntary, as one
make the event
sarily
mug
shot
to
to submit
was asked
where "no"
one
question to be
interpret
produce
test,
asked
and was
polygraph
in the
answer-especially
available
not an
784 P.2d
police.
evidence
certain
significant
It is
here.
present
Dra-
cireumstances
(Colo.1990). Similarly,
789-90, 792
aof
in the back
transported
was in
suspect
con we
area of the Sher-
accompany officers
non-public
agreed
police car
she
where
directed
where
Department,
iffs
station,
front seat
riding in the
small, closed-
in a
interrogated
then
*7
through
wait
a non
car,
and was
police
the
taken
La-
Wayne R.
for
2
questioned
See
room.
an office
interview
area to
door
public
6.6(d),
§
she
at
hours;
al.,
told
was never
Procedure
she
three
et
Criminal
almost
Fave
arrest,
2007) ("If
(3d
under
'invitation'
or not
the so-called
to leave
was free
ed.
735
in
hours
three
involves
station]
for another
police
made to wait
the
at
an interview
[to
being interviewed
compa-
in
station before
the
police
the
the station
going to
person
714-15,
Finally,
717.
custody
at
again. 884 P.2d
yet
finding of
a
police, then
ny of the
custody in
in
suspect was
a
found that
Importantly,
likely.").
much more
officers
where
Minjarez,
arrest,
under
he was
never told
suspect's
hospital where
came
fact,
trial court
In
to leave.
free
he was
treated,
to
nurses
asked
child
to wait
instructed
hospital
bring him to a
room,
thereafter
and was
in a closed
officers
suspect to
directed
procured,
had
officers
room.
length in that
interrogated
door, and
the closed
away from
in a chair
sit
Elmarr
Furthermore,
significant
it is
then
go
to
but
free
suspect he was
told
interrogation,
aggressive
subjected to
interrogation-
subjected
aggressive
him to
re-
expressed doubts
interrogators
where
and accusa
leading questions
consisting of
truthfulness,
his deni-
discounted
garding his
forty-five
twenty
of
guilt-for
of
tions
evidence
potential
als,
him with
confronted
351-
the interview.
minutes of
committing
him of
accused
(Colo.2008).
guilt,
52, 357
his
id.,
("And
6.6(F),
§
murder. See
at 751
guided
sure
by the United
Supreme
States
Court
ly
person
a reasonable
would conclude he
in this matter of federal constitutional
law
custody
if
the interview is close and merits
some comment.
I also consider
persistent,
involving leading questions and
important
again
to onee
highlight
the extra
the discounting
suspect's
of the
denials of
imposed upon
burden
the search for truth in
involvement.").
interrogation by
Such
multi
jurisdiction by
this
suppression
needless
ple
officers
a small room isolated from of a defendant's own
attempts
calculated
to
helped
others
create a
custody.
sense of
shift
away
blame
from
I
himself.
therefore
atmosphere
custodial
continued after Elmarr
briefly explain my reasons
dissenting.
requested
attorney-even
then,
purposely
I
refer
to these statements
as
kept in the closed-door
interview room and
being "suppressed by
majority"
because
was asked about his willingness to submit to
majority
even the
acknowledges that the trial
polygraph test,
and then was directed to
simply
court
applied an
legal
incorrect
stan-
photographs,
disrobe for
about which he was
dard, mistakenly believing
told,
ques-
really
"You
don't have a choice." All of
tion
to turn on the
intent
these factors
prompt
combined to
Elmarr
to
police. Although
majority
question,
rightly
ask the reasonable
*8
nature,
in
majority's
and the
rationale for
(apparently
court
relying
Captain
on
Epp's
suppressing them is
case-specific
so
as to
statement
that although
present,
he was not
have
precedential value,
little
I believe the
it
probably
have
proce-
been standard
persistent unwillingness of this court
pat
be
dure to
suspect
down a
before trans-
4.
In the
totality
circumstances,
custodial.
It is the
in the record,
one
videotape
can hear
open
the door
and close each time officers enter
from the time
put
Elmarr in a
car
and leave.
until
the time he was
released hours later,
finally
that makes the encounter custodial. See Mathia
argue
The
interrogation
that
if the
of
son,
495,
429 U.S. at
(noting
1165 the Colorado and Supreme Court the U.S. him) defendant that porting Determi on the Test Supreme Court search, despite the pat-down a for subjected to Miranda, Purposes Custody nation only officer of for testimony of of unequivocal (1994), fi when and touched, 427 U.L.Rev. 71 Denv. was not the defendant that present Supreme acknowledge gither nally forced or to the station driven Berkemer, v. Minnesota holdings in Court's and significant, Equally there. arrival 1136, 420, 79 104 S.Ct. Murphy, 465 U.S. finding the court's unsupported, equally small, Behler, (1984), dismissed we in a and "placed" 409 L.Ed.2d the defendant ap "fact-specific reflecting a merely as them to wait" "told and room interview closed custody. Peo question of proach" indicated only evidence relevant The there. (Colo. 117, n. 2 119 Trujillo, 938 P.2d to wait "asked" ple v. the defendant 1997). conceding that Despite grudgingly the detectives with coordinated Epp of force only by a show triggered is Miranda defen- with the spoken previously had who arrest, char an with traditionally associated recall whether could dant; no witness drawing point and like by actions acterized in or room in a break waited the defendant conducting and handcuffing, weapons, ing video- office; and else's someone weapons limits of a that exceed entering the in- searches the defendant tape showed Breidenbach, see, v. eg., People pat-down, Hopper, Epp and along with terview (Colo.1994); eventually 879, 886 began. While the interview as of Su the words coming to mouth even fact, certainly disbe- court, could trier of as see, standard, eg., preme Court's em- testimony, it was not particular lieve (Colo.2002), 453, 465-66 Matheny, 46 P.3d whole from evidence to invent powered (as holding) by today's evidenced seem never cloth. concept. fully embraced to have however, majori troublesome, Most distinguish majority fails to again the Onee very legal standard apply ty's refusal suspect has effec- that a indications objective quarter- a accept. Almost purports aof from indications arrested tively been Supreme States century ago, the United avoiding that interest suspect's potential placed suspect is not clear that made Court case, any state- In former eventuality. re the Miranda purposes of custody for of waiver an effective made without ments and sub seized merely quirements presumptively are warnings v. Miranda stop. Berkemer investigatory jected to latter, 3138, In the coercion. 104 S.Ct. of McCarty, 468 U.S. product to assist by a desire more motivated (1984). Rather, prophy L.Ed.2d 317 attracting fur- to avoid investigation or only triggered warnings are Miranda lactic arises. presumption suspicion, no such ther infringed liberty been has suspect's when statements voluntary witness Comparing a for commensurate an extent upon to legitimate but only a not evidence is real at a interrogation Id. And mal arrest. tech- effective highly desirable consensual, fact a station, does long it is as as solving crimes. kind, nique for much less a seizure constitute Oregon v. arrest. to an tantamount seizure of an ar- indicia of actual the absence 492, 495, Mathiason, 97 S.Ct. 429 U.S. laundry list rest, majority marshals Beheler, (1977); L.Ed.2d California factors, little indicative of or cireumstances 3517, 77 1124-25, 103 S.Ct. 463 U.S. police station. at the interview than an more (1983). L.Ed.2d typically are rooms fact that two officers public, that large nor neither acknowledging late jurisdiction was This interview, they close for an present the de- a seizure between distinction nothing virtually indicate privacy the door purposes person and fendant's *9 an interviewee's Cleburn, voluntariness the 782 about see, Miranda, eg., has ex- Court Supreme As the presence. (Colo.1989) (continuing to 784, 786-87 carry noted, questioners person fact that pressly a reasonable custody whenever find they only that indicates side-arms holstered leave); generally see free to feel not would by officers, is understood which Between Nagel, F. William Differences 1166
the interviewee EID, when he consents to a sta- Justice dissenting. tionhouse interview. Drayton, United States v. 1 would reverse the trial court's order 194, 205, 122 U.S. S.Ct. 5 suppressing Elmarr's statements and there- (2002). L.Ed.2d 242 And rather than being respectfully fore dissent from majority's arrest, an riding police car, indication of in a opinion. view, my In the trial court made only giving after consent and without having significant two and fundamental errors patted-down been handcuffed, or sug this case. gest any person precisely reasonable opposite. First, the court found that incomplete In the absence of objectively manifested warnings given by Miranda the officers cre- change cireumstances, the fact that a de- ated custody: fendant present by agreement who is is not [Flrom the moment [the defendant] was expressly told that he is free to leave has advised of his rights, Miranda Defendant meaning; little and it seems more than a custody was in purposes of Mi- disingenuous little suggest worthy it as a _... randa. Defendant was practice advised of Mi- light of the trial court's adverse very randa at the beginning ques- of the reaction to the reminder the de- tioning, which would fendant was indicate to speak free not to someone with them. To familiar with the process extent criminal actually that he cireumstances did change being deprived point some as a result his freedom.... responses, defendant's clearly to, felt free In holding, so got the court exactly back did, interview, terminate only his wards. Miranda warnings do not create earlier fact, statements are at issue here. custody. Wayne See 2 al., R. LaFave et majority's substantial reliance on events 6.6(F), (8d § Criminal Procedure at 752 ed. following termination of the interview is a 2007) ("The argument giving of some further indication of its failure to grasp, or at of the Miranda warnings itself establishes least its apply, objective failure to stan- the situation was custodial has been by dard dictated Supreme Court. In the rightly rejected ...."); see also United absence of they indication that already Bautista, (10th States v. 145 F.3d intended, already and had communicated Cir.1998). Instead, custody triggers Mi intent, him, their to arrest subsequent randa. People Stephenson, 159 P.3d actions of the officers could bearing have no (Colo.2007). As a noted commenta whatsoever on the perception defendant's suggested, tor has it would be "bizarre" to his status at the time of his statements. penalize police officers for attempting give With its mechanical counting virtually warnings Miranda in situations that were meaningless factors comparisons and its later determined a court to be noneustodi patterns fact considered this court long al., al. supra, 6.6(F), § LaFave et at 752. Supreme Court's modern Jurisprudence us, became clear to I only can The second fundamental error committed majority assume the either appreciate fails to by the trial court is the fact that it relied on import of that jurisprudence it, despite subjective officers' analy intentions in its continues to harbor reservations about sis of whether Elmarr custody, was in con use of a defendant's own words to establish cluding that "Captain Epp likely suspected guilt. case, his In either I major- believe the that Defendant was involved in the murder ity's holding today conflicts with the Su- and intended to attempt to elicit incrimina preme Court's interpretation of the United ting statements from Defendant." As the Constitution; States can only serve to dis- majority recognizes, and Elmarr acknowl suade law enforcement officers from seeking edges, intentions of the offi and preserving a of voluntary record witness in questioning cers the defendant have no interviews; and needlessly hinders role in determining whether the defendant search for truth in process. the criminal custody. was in Maj. 1161; op. at see also I respectfully therefore dissent. (Colo. v. Matheny, 46 P.3d *10 2002) erred the trial court (concluding that intent). officers'
by relying on the entirety of errors tainted
These two fact- analysis render its trial court's relies, majority sus
finding, upon which my maj. 1163-1164. op. at
pect. See court's er
view, correct should pro the case for and remand
rors Arias, ceedings. See (Colo.2007) (Eid, J., dissenting). For reason, from the respectfully I dissent
majority's opinion. Colorado, of the State
The PEOPLE
Plaintiff-Appellant KERST, Defendant-Appellee.
Erica
No. 07SA239. Colorado,
Supreme Court Banc.
En
April28,2008. notes get "When Ido go home?" All of these facts that both applicable lead to the legal standard and application conclusion that court's Elmarr's freedom of action standard largely law, was curtailed are degree subject associated matters of to de novo arrest, formal court, and a review person reasonable this majority under extends those circumstances would feel that he was in notion of "de novo review" to include not custody.5 Polander, P.3d at only assessing legality of a lower court's actually actions but ordering suppression for III. Conclusion reasons of its own. And although the factors We which the majority conclude generic that all of relies are Elmarr's so state- apply as ments to the any at the almost Boulder interview at Sheriffs police station, regardless consent, product were the I never- custodial interrogation. theless problematic consider Because it is majority's con- ceded that perfunctory Elmarr did approval not receive proper of the trial court's fact- Miranda warning, all finding. of those statements suppressed. must be Accordingly, we affirm defendant, Because the clearly who was the trial suppression order, court's and re- present and could have contradicted the offi- mand for proceedings consistent with cers on disputed points, chose not opinion. testify support motion, of his a number of the trial key findings factual were Justice COATS and Justice EID dissent. simply based on its presumptions typ- about COATS, Justice dissenting. ical practice and absolutely were un- While the suppressed statements by the supported by any evidence of the actual majority today all ostensibly exculpatory events in particular, this case.