The State appeals the trial courts granting of a motion to suppress incriminating statements Defendant Maria Brooks made to the police prior to receiving Miranda warnings. Ms. Brooks was interrogated by police in connection with the suffocation death of an infant girl that Brooks had been babysitting. The State contends that no warnings were required because Brooks was not in custody when she gave the statements. We affirm in part, reverse in part, and remand for further proceedings.
Factual Background
On January 7, 2004, at 2:20 p.m., twenty-five-year-old Maria Brooks called 911 from her home to report that Amara Springer, the child she was babysitting, was not breathing. The fire department and emergency personnel arrived at Brooks’ residence. The nine-month-old child was transported to the hospital.
Detective Michelle Rogers of the Ray-town Police Department arrived at the scene shortly after the 911 call. The detective questioned Brooks about what had happened to the child. Brooks stated that she was babysitting Amara, who was her boyfriend’s grandniece, and that the child had a bad cold and cough. She said she put the baby on its back on the couch and covered it up to its knees with a blanket. She put a pillow next to the baby’s side so that it would not roll over. Brooks stated that she then laid down and went to sleep on the long end of the couch. When she woke up about an hour later, she discovered that the baby was not breathing and called 911.
Detective Rogers asked Brooks if she would come to the station to give a formal statement. Brooks agreed. Detective Rogers drove Brooks to the police station because Brooks did not have an available vehicle. The detective took Brooks to a small interrogation room in the basement.
The interview started at around 3:45 p.m. 1 The detective and Brooks were seated diagonally across the table from one another. The detective and Brooks were alone in the room. The detective openly recorded part of the interview by audiotape. Also, the detective surreptitiously recorded the entire session by videotape.
The detective said: “[A]nytime you decide that you don’t want to talk to me or whatever just say, [’JMichelle I don’t want to talk anymore[.][’] But I would like ... just to get this all finished with today, but it may ... take a bit but we’ll get through it.” Detective Rogers informed Brooks that she could take a break for food or to use the bathroom and that she would take her home when they were finished.
Brooks stated that she had been babysitting Amara with some regularity so that Amara’s mother could work. She said that Amara’s mother, who is the niece of Brooks’ boyfriend, dropped Amara off at Brooks’ house the night before. Brooks explained how she put the child to bed that night. She also gave an account of the following day, leading up to the 911 call. Her account was that she laid Amara down for a nap on the floor. The child woke up *269 crying and coughing so Brooks gave her some medicine. She then laid Amara down on a sectional couch, placing a blanket over her. Brooks took a nap with her, lying on the “longer portion” of the couch. A “weird feeling” that something was wrong caused Brooks to wake up and discover that the child was not breathing.
After Brooks finished her description, she stated that she was tired of talking, and she said that she wanted “to get home to [her son].” Detective Rogers asked Brooks if they could go over everything again to make sure “[they] got it right.” Brooks said that would be okay. Detective Rogers said if they got the story right, then they would “w[h]iz through [the story] again [a third time] on a recorder.”
The second round of questions produced largely the same questions and answers. At around 5:30 p.m., Brooks again stated that she wanted to go home to her son. The detective responded that “we should be just about another half hour and that’s it. Okay?” Brooks nodded in agreement.
The detective then left the room for a restroom break. When she returned a short time later, Brooks asked if she could use the telephone to call her employer to let them know she would not be in to work. The detective said that she could and again left the room. Brooks placed the call, but no one answered. Brooks then called her boyfriend. Brooks’ side of the telephone conversation was recorded on the videotape. She told her boyfriend,
... I just figured I’d call and let you know I’m still up here. She said the next 30 minutes and we should be done. Then she’ll give me a ride back home. Was he ... ah ... what thing? Oh okay .... uh ... huh ... uh ... huh. I know honey it was not my fault. I know. It was not my fault honey.... The detectives and everything told me this happens to a lot of babies and they don’t know why it happens. It could be anything they said. I mean cause she’s been having a hard time breathing and everything....
In that telephone call, Brooks learned from her boyfriend that the baby was declared dead. This news upset her, causing her to cry.
The detective returned. Brooks, who was still on the phone, was in tears.
Q. Maria?
A. Yeah.
Q. We gotta finish. Okay?
A. (Speaking to person on phone). Okay. I gotta finish up and then I’ll be on my way home. Okay. I have to go so we can finish this. This way I can come home. I love you. Bye. (Still crying.) ... I don’t think I can finish after what I just heard.
Q. Why don’t you sit back up here Maria. I’m sorry. I know it’s tough.
A. Her mom is trying to blame it on me.
Q. Things happen. Okay. You just gotta realize right now that everybody’s upset. Okay.
A. They want to try to blame me for it though. Nothing I can do ... say ...
Q. Maria? Can we get through it and then I can get you home and you can ... you can relax. Try to relax and lay down a bit.
A. I mean she could had that flu that was going around even.
Q. ... um ... hum.
A. I mean if they’re trying ... she’s ... her mom’s trying to blame me for it.
Q. I know. If she’s trying ... if she’s trying to blame you for it that’s why ... that’s why it’s so important that I go through all this and get everything in detail. Okay? Are you feeling okay other than just being upset?
*270 A. ...
Q. Hum?
A. When we do that tape can you just ask me like yes or no questions?
Q. No. We gotta go through in detail. Let me go get you some Kleenexes okay?
A. ...
The detective then activated an audiotape recorder for the ostensible purpose of recording the questioning (although the video recorder continued to record as well). It was about 6:05 pm. The detective used her notes to formulate the questions. The third interview was essentially a repeat of the first two. Again, the ques- . tions first focused on background information, then shifted to the events preceding Amara’s death. Brooks detailed how she found the child not breathing and called 911. At around 6:36 p.m., the audiotaped statement was complete. The detective asked Brooks whether any promises or threats were made to induce the statement. Brooks said no. The detective asked whether Brooks voluntarily made the statement. Brooks said yes. The detective stated, “This’ll be the end of the report,” and turned off the audio recorder.
Brooks was still teary. The detective had changed her position so that she and Brooks were now seated with little space between them, directly across from one another. At this point, she began leaning forward with her elbows resting on her knees, looking directly into Brooks’ face. The detective told Brooks, “I promise we’ll leave after this.” Thus began the stage we can call the “fourth stage” of the interrogation. The detective immediately went into a long monologue.
Q. Okay. Now I just want to ... I promise we’ll leave after this. I just want to make sure because like I said the Medical examiner’s office is going to come out tonight and they’re going to do the positioning of the baby and the doll and everything. And they’ll be further investigation done tomorrow morning on the baby and I just want to make sure that nothing else happened. That nothing else ... you know ... that maybe something ... I don’t know. I’m just saying that if ... if there’s something that you’re leaving out and you’re not telling me. I need you to tell me, so I can help you and help figure it out. Because we don’t want this to happen to another baby. Okay? So if ... if there’s anything ... anything that you’re not telling me or ... you know ... something happened that maybe things got out of control or anything like that. We need to talk about it tonight. As opposed to us finding out later on in the investigation. You understand what I’m saying because ... cause it will come out. The Medical Examiner will be able to determine ... you know ... how the baby died. And we know that probably tomorrow or the next day, so ... like I’m saying. I just want you to know Maria that if there’s something ... something happened that you’re not telling me or ... or what have you or you’re tired or what have you we need to talk about it now before it goes ... it goes any further. You understand where I’m going from and what I’m saying?
The detective’s monologue continues for several more minutes with only a few short remarks from Brooks interspersed. The detective then repeatedly asked Brooks what else she was not telling her. She stated that the police would find out, so it would be best to tell her first. Brooks *271 maintained that she had told the detective everything.
The detective continued to probe. Brooks finally stated, after further probing, that the baby may have suffocated under the blanket that was wrapped around her head. Brooks stated that the baby “was holding onto” the blanket, and that she “pulled it off’ the baby. She noticed the baby’s lips were blue “and she was all limp.” Detective Rogers interrupted Brooks. The detective continued: “[I]f that’s what happened ... I need you to tell me about it. ‘Cause ... I’m going to find out about it tomorrow at the Medical Examiner’s office.... I know that ... you’re still not telling me the full truth.”
The detective said:
I know the baby didn’t pull the blanket up over its head like and didn’t suffocate itself on its own. I know that ... that she didn’t ... she didn’t do that. That’s impossible. She didn’t do it. I know it’s possible that she was crying so much that you thought oh if she could just quit crying for a few minutes ... you know ... and if she would just go back to sleep.
Brooks, her voice breaking, answered, “You’re right. I put the blanket over her.”
(The video shows that Detective Rogers placed her hands on Brooks, and patted her, while handing her some more tissue.)
Q. Okay. Okay. That’s okay sweetie.
A. It hurts coming out.
Q. Pardon me? I know.
A. I just wanted her to be quiet.
Q. I know you did. I know.
A. I didn’t think I would hurt anybody.
Q. Here. Okay. Let me, we’re going to get through it. Okay. Alright.
A. I’m not in trouble am I?
Q. Well, we’II talk about that. Okay. Now before I talk to you anymore. I’m going to read you a statement. Okay. You must understand your rights before we ask you any questions. You have the right to remain silent. Anything you say can and will be used against you in a court of law or other proceedings. You have the right to talk to a lawyer and have him present with you while you’re being questioned. If you can not afford to hire a lawyer one will be appointed to represent you before any questioning if you wish. You can decide at anytime to exercise these rights and not answer any questions or make any statements. I have read this statement of my rights and I understand what my rights are. Do you understand everything I read to you?
A. Yeah.
This was the first time that Brooks was informed of her Miranda rights. Brooks was given the form to sign indicating that she understood. Brooks signed the form, indicating she understood her rights. This began what we will call the fifth stage of the interrogation. The detective then, without asking if she wished to waive her rights and continue talking, continued, “Now tell me what happened when you ... cause what you were telling me all up until you putting her onto the couch or ...
A. She was on the couch.
Q. Okay. Up until that point is everything you’re telling me what happened the truth ...
A. Yes.”
After additional questioning, Brooks finally admitted that she placed the blanket over the child’s face and put pressure on it for “about a minute” until she stopped crying. The detective then re-activated the audiotape recorder to record Brooks’ confession.
*272 Brooks was formally placed under arrest. She eventually was charged with second-degree felony murder, § 565.021.1(2); 2 first-degree endangering the welfare of a child, § 568.045; and abuse of a child resulting in death, § 568.080. 3
Motion to Suppress
Brooks filed a motion to suppress the incriminating statements she made to Detective Rogers at the police station. She claimed that the statements were made diming a custodial interrogation; and, therefore, Miranda warnings were required. At the hearing, both Detective Rogers and Brooks testified.
Detective Rogers testified that it is her normal practice to conduct three rounds of questions. Rounds one and two assist her in determining what questions to ask during the third session, which is audiotaped for transcription. Detective Rogers testified that Brooks was not under arrest. The detective stated that she did not believe Brooks was even a suspect until Brooks stated that she had pulled the blanket up over the baby’s face. Although the detective said it was normal to do such an interview in three stages, she did not offer any explanation for the portion of the interrogation after the three stages — when she sought to detain Brooks for “this,” (without saying what “this” was). Nor was the detective asked about the purpose of the “this” stage — which we will refer to as the fourth stage.
Defense counsel, in questioning Detective Rogers about the interrogation, did secure her acknowledgement that she was aware that the child’s mother had stated that Brooks was “not very bright ... not very smart.” Although Detective Rogers informed Brooks she could stop talking to her at any time, she admitted that she never actually explicitly told Brooks at any time that she was free to leave.
Brooks testified briefly. She testified about her poor educational background and very limited employment history, including working at McDonald’s and Wal-Mart. Brooks had had no prior involvement with the police. Neither the State nor the defense inquired about her perceptions of the interrogation.
The trial court, after hearing the testimony and reviewing the record of the interrogation, granted the motion to suppress, ordering “any and all statements” the defendant made at the police station inadmissible at the upcoming trial. The State appeals, contending the circuit court erred in granting the motion to suppress on Miranda grounds.
Standard of Review
The State, as the appellant, has the burden of demonstrating trial court error in holding that the statements at the police station should be suppressed.
See State v. Cella,
“Custodial Interrogation”
The privilege against self-incrimination includes the requirement that the
*273
police warn those taken into custody that they have the right to remain silent.
Miranda v. Arizona,
The fact that a person is a suspect does not trigger the duty to warn; there is no duty unless the suspect is also “in custody.”
Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place at the station house, or because the questioned person is one whom the police suspect.
Oregon v. Mathiason,
Suspects are in custody when they have been informed that they are under arrest, or when restraints have been placed on them. When there is no declaration of arrest, and no physical restraint, the usual assumption is that a suspect is not in custody. However, there are factors that could potentially show that the police have
actually
taken custody of the suspect, even though there is no formal declaration of arrest and no handcuffs or other physical restraints placed on the suspect.
See, e.g., State v. Tally,
In reviewing motions to suppress based on an alleged failure to provide
Miranda
warnings, we examine questions of law
de novo. State v. Rousan,
*274 Deference
In this case, Brooks did not testify concerning her impressions of the interrogation. She testified only as to her personal background and circumstances, which are not disputed. Her opinions and impressions would not hold sway in this determination anyway because the U.S. Supreme Court has determined that the “in custody” determination is to be reviewed as a matter of law.
See, e.g., Thompson,
In this case, the basic historical facts are entirely captured on the videotape. There is also no dispute as to anything the officer said in the suppression hearing, except for the officer’s self-serving opinions, which are irrelevant to an objective determination.
See id.
The motion hearing was devoid of dispute as to the “basic, primary, historical facts” of the case.
See Thompson,
“In Custody”
The State does not dispute that Detective Rogers’ questioning was “interrogation” within the meaning of the Miranda case; nor does the State need to show that Brooks was not a suspect. The State argues only, and needs only to persuade us, that this interrogation did not occur while Brooks was “in custody.”
Miranda
warnings are required only where a person’s freedom is restricted so as to render him in custody.
State v. Glass,
*275
The most recent decision of the Missouri Supreme Court illustrating this is
State v. Glass,
The officer asked defendant Glass to accompany him to the Sheriffs Department to give a written statement. Defendant agreed. The officers did not place Glass in handcuffs or place him under arrest. They took defendant Glass in one of the officer’s cars because defendant’s car was being searched. On the way to the station, they stopped so defendant could purchase cigarettes. At the station, defendant gave three statements over a period of hours. The first was not preceded by a Miranda warning. The second statement was given after a warning and waiver of rights. Glass was “not placed under arrest” prior to giving any of the statements. The first statement denied any knowing involvement, but the defendant stated he could have gone to the victim’s house and did not remember because “he was so intoxicated.” The two subsequent interviews, after the Miranda warnings, involved the officers extracting a confession from the defendant.
After a trial, Defendant Glass was convicted. On appeal, his first point asserted that the statements were the result of an illegal detention without probable cause. The second point asserted the statements should be suppressed because they were obtained as a result of custodial interrogation without first administering Miranda warnings. Id. at 508. Third, he argued the warned statements should be suppressed because they were obtained by using the unwarned statements.
The court quickly noted that the officers would have had probable cause to detain Glass. Id. at 508. The court next discussed the subject of the need to warn Defendant Glass of his Miranda rights. The court stated that a person who voluntarily accompanies officers to the police station for questioning is not subject to arrest-like restraints. Id. at 509. The court noted the following factors:
• The officers and Glass engaged in a voluntary discussion outside his home. Id.
• The officer asked Glass to go to the sheriffs office to give a written statement. Glass agreed. “Glass was not *276 placed in handcuffs or under arrest and was free to refuse.” Id.
• The officers transported Glass because Glass’ car was being searched and he had no other transportation. Id.
• Although two officers took him to the station, there was no evidence that the purpose of the two officers going with him together was for the purpose of restraining, threatening, or intimidating defendant into going to the station. Id.
• On the way to the station, Glass was allowed to go unattended into a convenience store to buy cigarettes. Id. During the interview, he was allowed food and breaks to go outside and smoke. Id.
• At no point did the officers show a weapon or physically or verbally restrain Glass in any way. Id. There was no “show of authority” causing Defendant Glass to submit. Id.
The Court concluded that a reasonable person in Glass’ situation “would not have felt he was not free to leave during the first interview” with the officer. The court held that because defendant went voluntarily with the officers, he was not seized or detained. Id. at 510. The court said that there is “no evidence that this consensual encounter turned into a seizure prior to Glass making his second statement.” The court said Glass’ first written statement was admissible because Glass was not in custody prior to making it. Id. at 511.
In this case, it is clear that the commencement of the questioning was voluntary and that Brooks, like Glass, was willing to make a statement. Brooks had initiated the investigation by a 911 call. “When someone calls the police, that person should expect some sort of inquiry when the police arrive.”
State v. Partridge,
There was no reason to conclude that she was being involuntarily detained.
See Glass,
Also, it is clear that “[a] person who is being asked preliminary, investigatory questions by the police is not in custody for the purpose of requiring a
Miranda
warning.”
State v. Londagin,
Next, we consider the circumstances at the station once the questioning was commenced. The State emphasizes that Detective Rogers informed Brooks at the beginning of the interview that she could stop talking anytime she wanted. Later, when Brooks was losing interest in continuing, the detective asked Brooks to continue in order to get the written statement accomplished that day. Brooks provides no authority for the proposition that efforts to persuade a suspect to grant or continue a thorough interview necessarily amount to the establishment of custody.
Brooks is correct that the officer never specifically declared to Brooks that she was
not
under arrest. The officer also never specifically offered, “would you like to leave now,” or specifically said, “you can leave whenever you want to.” The same thing was apparently true in
Glass. See Glass,
When Brooks said she was “tired of talking” and requested to go home to attend to her child, the detective again tried to persuade her to see the matter through to a finished interrogation. She obtained Brooks’ consent to keep going. The facts suggest that a reasonable person would have believed she could have insisted on walking out if she were willing to take the risk that she would appear less than cooperative to police and to her boyfriend’s family.
While from the inception Brooks was a suspect in the ordinary sense of that word, the fact that she was a suspect and that the detective hoped to elicit a confession if there were foul play does not mean that she was “in custody.”
Middleton,
A policeman’s unarticulated plan has no bearing on the question whether a suspect was “in custody” at a particular time; the only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation.
Berkemer,
Brooks, in her brief, does not discuss
Glass,
and instead relies upon another Missouri Supreme Court case dealing with the in-custody determination,
State v. Werner,
The court, held that the officers had seized Werner at the school. The assistant principal who delivered Werner to the officers at the school testified that in his mind there was “no question” that the police were going to take Werner to the station. Id. at 596. Werner was isolated and made to wait for an interrogation. Once the questioning began, Werner “lacked control over the interview process.” Id. at 596. Two officers were interrogating him. The atmosphere was police dominated. He was not informed that he could leave, and was not informed that he could refuse to answer questions. The court looked for any objective evidence indicating that Werner could leave. The court found no such evidence. Id. at 598. It was patent that Werner was in custody. Werner had been transferred from the authority and control of the school directly to the custody of the officers without parental knowledge or approval. There is no indication that school officials believed they had any right to object. Werner was not even allowed to use the bathroom at the station without being “escorted.” The court held that the police violated Wer-ner’s Fifth and Fourth Amendment rights, applicable through the Fourteenth Amendment, by illegally placing him in custody and detaining him without probable cause. Id. at 600. The court held the statements made to police must be suppressed.
Werner
is, of course, distinguishable in that it involved a juvenile, not an adult. The Court in
Werner
stated “that a custody determination should take into account all the circumstances, including the suspect’s personal background experience, familiarity with police questioning, maturity, education and intelligence.”
Id.
at 598. This proposition is applicable to a case involving the circumstances present in
Werner.
The statement is not repeated in
Glass,
where the court simply applied an objective test to an adult. The U.S. Supreme Court has indicated that, generally, the objective test does not “place on the police the burden of anticipating the frailties or idiosyncracies of every person they question.”
Berkemer,
Brooks also relies on
State v. Tally,
In Tally, the court noted that the police in the helicopter had restricted the suspect’s movement. Because of the way the officers began ordering the suspect about, and because of the presence of officers on the ground, with the helicopter hovering a short distance away, the court concluded that the appellant would not have felt that he was free to leave, despite the earlier disclaimer that “at that point” he was not under arrest. Id. at 894-895. 4 Tally illustrates that a show of force and exercise of authority to restrain a suspect can be more important than a declaration that the suspect is not under arrest. Tally shares with Werner the fact that in both cases the police were clearly restricting the movements of the suspects. 5
A case that is somewhat like
Glass,
but decided earlier, is
State v. Middleton,
At the hospital, after defendant was acting conscious, and began to interact with hospital personnel, the police officer went into the room, and the defendant agreed to resume describing the events of the day. He then made statements about what had transpired. Id. The defendant was not formally arrested nor was he advised of his Miranda rights. Id. At trial, the evidence of the defendant’s conduct and his statements, including the statement at the hospital, were admitted into evidence against *280 him. Id. The defendant, who was convicted, maintained that the trial court erred in refusing to suppress the statements because the officers failed to advise him of his Miranda rights. The court in Middleton held that Middleton was not in custody at the time of the questioning at the house or in the hospital. Id. at 512. The defendant was not “at the mercy of the officer,” nor was he “deprived of his freedom of action to any degree by the police officer.” Id. The “aspects of a custodial interrogation were not present.” Id.
The court in
Middleton
also rejected the notion that the police were required to give
Miranda
warnings simply because “their investigation had focused on the suspect.” The court dealt extensively with this issue, explicitly rejecting it.
Id.
at 513-14. Quoting
Berkemer,
Brooks, like Middleton, initiated the contact with authorities by a 911 call, and agreed voluntarily to make a statement about what had happened.
See Middleton,
In this case, as in
Middleton,
the detective could have advised Brooks of her rights when the detective first asked Brooks to come to the station, while also informing her that she was not under arrest. There would have been nothing wrong with that; it might have been practically shrewd as well as legally appropriate.
See State v. Reese,
The Miranda decision was intended to apply only to custodial interrogation, and not to the kind of interrogation where the police are engaged in an investigation of something that may or may not be foul play.
Our decision is not intended to hamper the traditional function of police officers in investigating crime ... general on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. It is an act of responsible citizenship for individuals to give what information they may have to aid in law enforcement.
*281
Miranda,
We conclude that Brooks was not in custody when she accompanied the officer to the station. She had initiated the contact with the officers as a citizen. She had good reason to voluntarily make a statement. It was a normal police investigation of the circumstances of the fact that the baby had stopped breathing. Brooks acquiesced in the entreaties to complete the statement. Until the formal statement was completed, she had no reason to think anything other than that she was being a good citizen voluntarily giving a statement to the police so they could proceed with their investigation and she could appear cooperative. The trial court erred as a matter of law in holding that Brooks was in custody throughout the time she was at the police station.
See Glass,
From Non-Custodial to Custodial
That determination does not end our inquiry, however. Of course, an interrogation can change from a non-custodial interrogation to a custodial interrogation. Here, after completing the written and audiotaped statements, the detective, after repositioning herself so that she was directly in front of Brooks, looking directly into her face from a short distance away, said they would leave “after this.” The officer did not allow a response from Brooks, but proceeded with a series of admonitions and probings, disregarding the obvious issue of whether Brooks, after all that had transpired, was willing to stay longer. The officer’s disregard of that issue would have been noticed by any reasonable person in the shoes of Brooks. Previously, the detective had always solicited Brooks’ consent to continue with the interview, as though acknowledging that Brooks had some say in the matter and was not entirely “at the mercy of’ the detective. The question then is whether, at that point, the officer was effectively ordering Brooks to stay until “after this.” And the next question is whether, if that is true, such order converted a non-custodial interrogation into a custodial one.
Allocation of Burden
We have no case directly on point as to the change of the interrogation — only the principles drawn from the cases discussed above. We also note that the State has the burden of showing, as a matter of law, that even after the officer took control of the continuation of the interview, a reasonable person would have still believed she was free to leave.
See State v. Hoopingarner,
In Glass, there was no constitutional problem, because the first statement was given in a non-custodial interrogation, and the officers provided Miranda warnings to Glass after the first statement and before attempting to extract the confession. Here, no warning was given before the officer arguably restricted Brooks’ freedom and secured a key admission. At trial, in describing her interview technique, the officer testified that she normally conducted her interviews in the three stages mentioned above, with the written and audio recorded statement being the third stage. The officer did not comment at *282 trial on the purpose of taking this interview beyond those three stages to what we have referred to herein as the “fourth” stage.
We conclude, for the following reasons, that the interrogation changed to custodial when the interview entered the fourth stage, which occurred when officer restricted Brooks’ freedom by saying, “Now I just want to ... I promise we’ll leave after this.” We look to the fact that Brooks, who had been at the station several hours, had already voluntarily provided extensive statements. Then, after having been informed that the statements were concluded, when she no doubt expected to be released, she was essentially
told
(not asked) to remain still longer, with the promise that “after this” she could leave. The officer, without explanation, divested Brooks of any control she had previously had of the interview process. The reasonable import of what the officer said was
not,
“Well, of course, you are still free to leave on your own, but I would be glad if you would agree to wait and allow me to tell you a few things and ask some more questions, and then when we are finished, we will leave.” We believe instead the reasonable import was, “I am going to keep you here longer, but I promise you that when I am through with this you can go home.” In other words, “you cannot leave now, but later (when I say so) we will leave.” Because Brooks was given no opportunity to know what “this” was or how long “this” would take, and because the officer purposely avoided discussion about the purpose or the length of the next stage of the interview, the officer’s statements left Brooks at the officer’s mercy.
See Werner,
The fact that there remained a promise that Brooks could leave at some unknown point does not alter the fact that a reasonable person in those circumstances, after all that had transpired, would understand that she was restricted by the officer’s comments. Nor do we know, in'retrospect, if Brooks had been slower to confess, how long the officer would have detained her to address her with monologues (alternating between sympathy and accusation) and probe her with questions until she finally gave in.
We. reach this conclusion in view of the particular facts of this case, including all of the objective circumstances mentioned above. A somewhat similar statement in a different context might not necessarily equate to the establishment of custody for warning purposes. In this case, however, we cannot say that the circuit court’s ruling was erroneous to the extent that it suppressed anything Brooks said in the fourth stage of the interrogation. The State’s point is denied as to the statements made by Brooks after the detective kept Brooks detained for “this.” All questioning, all accusations, and all responses by Brooks made in the fourth stage of the interrogation were properly suppressed.
Post-Miranda Statements
The State contends that even if this court concludes that some or all of Brooks’ pre-Miranda admissions were properly suppressed because she was in custody when she made them, we still must find that her post-Miranda statements made in the “fifth stage” (the warned stage) are admissible.
We start our analysis of this issue by noting that Brooks was never asked if she were willing to waive her rights and to talk about the circumstances. Rather, she was asked only if she understood her rights. Then, she was asked to sign to *283 indicate that she understood. 6 The detective then immediately asked her to verify what she had said before she was warned. Although Brooks seemed willing to continue to talk, it is highly doubtful, at that point, that any reasonable person would have understood that some or all of her unwarned statements might not be admissible. Thus, it is unlikely that she had any awareness she could exercise the right to retract anything.
The State relies on
Oregon v. Elstad,
We find
Missouri v. Seibert,
Distinguishing
Elstad,
the
Seibert
Court noted that since a reasonable person in Elstad’s situation, “could have seen the station house questioning as a new and distinct experience, the
Miranda
warnings could have made sense as presenting a genuine choice whether to follow up on the earlier admission.”
Seibert,
The Seibert Court identified a series of factors to be considered in determining whether Miranda warnings delivered mid-questioning, and after an unwarned confession has been obtained, can effectively *284 achieve their purpose. Those factors include:
the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second, the continuity of police personnel, and the degree to which the interrogator’s questions treated the second round as continuous with the first.
Id.
at 615,
Here, the first three rounds of pre-warning questions and answers went into great detail. As in
Seibert,
there was virtually no break between the unwarned questioning and the
post-Miranda,
interrogation. Both were conducted in the same setting and by the same officer. There was a clear overlapping of the content of the pre-warned and
post-Miranda
statements, and the officer treated the second round of questioning as continuous with the first. Immediately after Brooks signed the
Miranda
acknowledgment form, Detective Rogers said: “Now tell me what happened ...
cause what you were telling me ... is
everything you’re telling what happened the truth ... or do we need to go over it again?” The officer did not ask Brooks if she were willing to waive her rights and continue to talk. We cannot conclude from this that a reasonable person of Brooks’ inexperience and in Brooks’ circumstances would have understood that she retained a real choice about continuing to talk at that point.
See also State v. Fakes,
Conclusion
The law imposes on the State the burden of demonstrating that pre-Miranda admissions made by Brooks in this interrogation should be allowed into evidence because there was no violation of Miranda in that Brooks was not in custody until after she admitted guilt; and, thus, there was no custodial interrogation. We believe the State did successfully show that the earlier parts of the interrogation — including the first three stages — were not custodial. However, for the reasons stated above, we conclude that the State did not show that the detective timely warned Brooks of her Miranda rights before a reasonable person in Brooks’ circumstances would have perceived she was “in custody.”
The State also had the burden of demonstrating that the post-Miranda admissions should not be suppressed because they were sufficiently independent of admissions made before she was advised of her rights while in custody. Brooks again did not have the burden of proof; that burden rested on the State.
After taking into account the burden of proof and all of the foregoing factors, we determine that that part of the interrogation which took place before the fourth stage of the interrogation did not constitute custodial interrogation and is not subject to suppression on Miranda grounds. We hold that all incriminating statements made in the interrogation thereafter, including the statements made after the Miranda warnings were given, were properly ordered suppressed. Thus, we affirm in part and reverse in part, remanding the case for further proceedings.
HOWARD and NEWTON, JJ., concur.
Notes
. All time references are to actual time rather than to the time displayed on the videotape recording, which does not show accurate time.
. All statutory references are to the Revised Statutes of Missouri 2000, unless otherwise noted.
. This is the statute number listed in the indictment, which this court notes does not correspond to the described felony of “abuse of a child”; however, this error is not determinative to the outcome of this appeal.
. The court also opined that the use of the ruse about the box cameras was not the normal type of investigative question employed by officers when a person is not in custody.
Tally,
. Some of the
pre-Glass
cases, such as
State v. Zancauske,
. The form Brooks signed was not a Miranda waiver form. It was a Miranda acknowledgement form.
. The State also relies on
State
v.
Glass,