Opposition Brief — Colorado v. LaFrankie

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CASE NO. 93 - 1039

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

STATE OF COLORADO,

Petitioner

Vv.

LESLIE BENJAMIN LAFRANKIE

Respondent

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI

On Petition For Writ Of Certiorari to the Colorado Supreme Court

DAVID F. VELA

COLORADO STATE PUBLIC DEFENDER

Linda Perkins Cooke

Deputy State Public Defender

Counsel of Record

John L. Lucas

Deputy State Public Defender

1637 28th Street

Boulder, CoO 80301

(303) 444-2322

Attorneys for Mr. Leslie Benjamin LaFrankie

QUESTIONS PRESENTED FOR REVIEW

1. Whether the United States Supreme Court should deny

Petitioner’s application for certiorari because in its petition

arguing for a modification of the legal standard of "custody"

for purposes of Miranda v. Arizona, 384 U.S. 436 (1966), that

Claim was not pressed or passed on below and thus is not

appropriate for review under Illinois v. Gates, 462 U.S. 213

(1983)?

2. Whether the United States Supreme Court should deny

Petitioner’s application for certiorari because there is no

conflict among the federal circuit courts or the states as to

what is the appropriate legal test for "custody" in triggering

the need for an advisement pursuant to Miranda.

3. Whether the United States Supreme Court should deny

Petitioner’s application for certiorari because the district

court and the Colorado Supreme Court applied the correct legal

standard in suppressing statements made by Respondent to police

detectives, and there is competent evidence in the record

supporting the district court’s findings?

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW... ..cccccccccccccccccccccccces

GPE See MS SECO SCE COCCEH OCHO ES OKO DE eEEsceceeceeeseaseeenc

II.

THIS COURT SHOULD NOT ACCEPT

JURISDICTION BECAUSE PETITIONER’S

ARGUMENT CONCERNING THE CORRECT DEFINITION

OF CUSTODY FOR MIRANDA PURPOSES ‘YAS NOT

PRESSED OR PASSED ON BELOW............. cc ccc cece ccuces 5

THE PERCEIVED CONFLICT BETWEEN THE

LAFRANKIE DECISION AND OTHER FEDERAL

AND STATE COURT DECISIONS HAS NOT

RESULTED IN A WIDESPREAD MISAPPLICATION

OF MIRANDA AND THUS DOES NOT WARRANT THE

GRANTING OF CERTIORARI BY THIS COURT.............. 7

A. THE COLORADO COURT’S DEFINITION

OF "CUSTODY" FOR MIRANDA PURPOSES

IS THE SAME OR EQUIVALENT TO THE

DEFINITION APPLIED BY OTHER FEDERAL

Mere Dee Gen beck sececccubeciccsccecececetiece 14

i. The United States Supreme Court

does not adhere to a rigid

GRESMECION GF GUBCOEY. ccccccccccccccecces 14

2. The Colorado Court’s definition

of custody is consistent with

that articulated by this Court........... 22

3. Other Federal Courts rely on

definitions of custody that

are functionally identical to

the Colorado Court’s definition.......... 25

B. COLORADO, LIKE MOST FEDERAL AND

STATE COURTS, APPLIES THE OBJECTIVE

TEST TO DETERMINE ’CUSTODY" FOR

PURPOCEe GP MIRANDA. occcccccccccccccccecececes 27

i. The United States Supreme Court

evaluates "custody" under the

"reasonable person" standard............. 27

2. The Colorado Court evaluates

"custody" under the “reasonable

DORE” GERMGESs 0s cee eee ee eee eee eeeeceeeses

3. The majority of lower courts

evaluate "custody" under the

"reasonable person" standard...........ece000-

Cc. PETITIONER’S PROPOSED DEFINITION OF

CUSTODY LACKS GUIDANCE AND UNDULY

LIMITS THE APPLICABILITY OF MIRANDA

CUNEO CCC COCKS HOHOCSESEH TORO HE EH OSES eSeeeeesceos

D. PETITIONER’S SUGGESTED DEFINITION OF

"CUSTODY" FOR FIFTH AMENDMENT PURPOSES

INAPPROPRIATELY RELIES ON THE FOURTH

AMENDMEN.S CONCEPT OF “ARREST... ccccccccccccccccces

E. THE DEFINITY OF CUSTODY PROPOUNDED BY

PETITIONER FAILS TO RECOGNIZE THAT

CUSTODY AND INTERROGATION MUST BE

EVALUATED IN TANDEM IN DETERMINING THE

NECESSITY FOR MIRANDA WARNINGS............000000005

III. THE COLORADO COURT APPLIED THE CORRECT

LEGAL STANDARD IN SUPPRESSING RESPONDENT’S

STATEMENTS TO THE POLICE, AND ITS FINDINGS

ARE SUPPORTED BY COMPETENT EVIDENCE.............eee000¢

PS CCE ECCHH CCC OCHOA S UO06 0% RO bE we oO 0 Ee ONS s oe eetKesicn

iii

TABLE OF AUTHORITIES

CASES

Beckwith v. United States,

See Wee See EEPTO) cococoedoceccescecotes 13, 14, 15, 16, 48

Berkemer v. McCarty,

SGG Gee GSO (2966) cocccesoceccoesce 6, 12, 14, 18, 20, 21,

COCewdebsevescesoodsoecceeoereveses 23, 24, 27, 28, 29, 35, 37

Bradley v. Ohio,

110 S. Ct. 3258 (1990) (cert. denied) .......ccccccces 14, 20

Brown v. Walker,

i i ee Cece ke ea eeee es eae 6beeeaeserenwawuns 8

California v. Beheler,

ee Bene BEee GEeeel covdeoesaseteee 4, 14, 15, 17, 18, 20,

“TORRE OARR LY VS OLE RARE EE ERE TCR TT eT Pee eee 23, 27, 30, 31, 45

Cardinale v. Louisiana,

en ee kn eee eee oun eb eee eee bdl enonéban 5, 6

Cohens v. Virginia,

es er ne den. ne teeeaweaececeetscceuccenéeann 6

Commonwealth v. Marabel,

i en ee teens oven cok uscceseeeesececcensetacan 34

Cordoba v. Hanrahan,

910 F.2d 691 (10th Cir. 1990),

cert.denied, 498 U.S. 1014 (1990) .-..cccccccccccccccees 33

Davis v. Allsbrooks,

re rn Ce, CON . ccoccebbececcecccsscuuceu 32

Escobedo v. Illinois,

i i en ebeteseweboceseebesbscbccecsccbetuucne i)

Fisher v. Scafati,

439 F.2d 307 (1st Cir. 1971),

cert. denied, 403 U.S. 939 (1971) ...cccccccccccucccccee 31

Garner v. United States,

Die Sn gheteeseeececeeseeeteeceéctbeescscins 11

Illinois v. Gates,

ee: 22k a ee a ewes aawenuabeean i, 4, 5, 6

Illinois v. Perkins,

496 U.S. 292,

Daw womens Beene CEEOO) ceoccenececeece 10, 11, 13, 28, 45, 46

Lefkowitz v.

414

Lowe v.

407

Maine v.

475

Malloy v.

378

Mathis v.

391

McCown Vv.

726

cert.

Turley,

U.S. 70 (1973)

United States,

F.2d 1391 (9th Cir. 1969)

Thibodeau,

U.S. 1144 (1986) (cert. denied)

Hogan,

U.S. 1 (1964)

United States,

U.S. 1 (1968)

Callahan,

F.2d 1 (lst Cir.

denied,469 U.S.

1984),

839 (1984)

McGoldrick v. Compagnie Generale Transatlantique,

309

Michigan

417

Minnesota v.

465

Miranda v.

384

eeeeceec eee eeeeeeeeeeeeeeeoeoeoeeeeeeeeeee et

Moore Vv.

658

Moran Vv.

475

Oregon v.

429

Orozco v.

394

U.S. 430 (1940)

Vv. Tucker,

U.S. 433 (1974)

Murphy,

U.S. 420 (1984)

Arizona,

U.S. 436 (1966)

“eee eeeeeeeeeeeee

Ballone,

F.2d 218 (4th cir. 1981)

Burbine,

U.S. 412

State,

A.2d 288 (Md.App. 1968)

Vv. Quarles,

U.S. 649 (1984)

Elstad,

U.S. 298 (1985)

Mathiason,

U.S. 492 (1977)

Texas,

324 (1969)

U.S.

ll,

oeeeeeeeeeeeeeeeeeeeeeeeeees

10,

18,

12, 14,

ll,

12,

23,

16,

eeeseeveevpeeoeeev eeeeeeeeeeeeeeeeeeeeeeeees

a ee ee ee

eee eeeeeeeeeeeeeeeeeeeeeee

12,

Ad,

30,

Pennsylvania v. Bruder,

Tee Same CRO) 6éebrednedduedessecedesdeueoe ae. aa, 23

People v. Algien,

S01 P.2d 468 (Colo. 1972) ...cccccccccccccccecee 23, 25, 29

People v. Archuleta,

Cam Wome oem Somes BONS cwckcrcdacstevesecéceuiii 25, 28

People v. Arnold,

426 P.2d 515 (Cal. 1967), overruled

on other grounds by Walker v. People,

VES Fume Gem CHUPOE 86h 0b eke beeeebbeceectsécececnetenkadi 33

People v. Black,

COS P.2G FEE (Cole. 1968) ccoccccccccececceccccccee 25, 29, 31

People v. Cleburn,

782 P.2d 784 (Colo. 1989), cert.

denied, 495 U.S. 923 (1990) ....cccccccccece 25, 29, 30, 31

People v. Gennings,

SOS P.2G B39 (Colo. 1991) wccccccccccccccccccececee 24, 29

People v. Hamilton,

831 P.2d 1326 (Colo. 1992) ...ccccccccccccee 22, 23, 24, 29

People v. Harper,

786 P.3G 1229 (Cole. 1986) cccccccccccccceccceces 25, 29, 31

People v. Haury,

859 P.2d 889 (Colo. BUGS? Ceee0eesecevseceee 23, 24, 29, 30

People v. Horn,

vow Poem Ser. CONGO. 2008) 6 cesecctsessésense 24, 30

People in the Interest of J.c.,

844 P.2d 1185 (Colo. Been 6666006066 6666664 24, 28, 29, 30

People v. Johnson,

671 P.2d 958 (Colo. 1983) ....cccccce 22, 25, 28, 30, 31, 38

People v. LaFrankie,

S58 P.2d 702 (Colo. 1993) ..ccccccccccccecese 24, 37, 51, 52

People v. Lucas,

wow Momeme Sens (ERR. BOGR): Wicddccddkasseebecdsucnoe 33

People v. Lumley,

398 N.W.2d 474 GeeGe Ae: TOO) | 66 cb chee cvevdeekeuacune 33

People v. Milhollin,

751 P.2d 43 (Colo. SOS) £0608 6860 65080000086 eel 25, 30, 31

People v. P.,

ee ee SU hee s BOGE) sencavecccecescesseas 28, 29,

People v. Parada,

See Boae Seas (GORRe BOTS) cocccocececeeeees 22, 23, 25,

People v. Probasco,

795 P.2d 1330 (Colo. 1990),

cert. denied,498 U.S. 999 (1990) .......e6. 23a, 33, 36;

People v. Rodriquez,

nn me) Cee. SO0R0 ccsccestcvecsteesadcacensaceuens

People v. Sandoval,

wee ame 2O08 tGole. 2067) ccoccoccccésccecvetecwcees 25,

People v. Thiret,

685 P.2d 193 (Colo. 1984) ..cccccccccucceces 22, 25, 28,

People v. Thomas,

839 P.2d 1174 (COlO. 1992) .icccccccccccecceccececes 23,

People v. Julian Trujillo,

784 P.2d 788 (Colo. 1990) ..ccccccccecceeces 23, 25, 28,

People v. Lupy Trujillo,

785 P.2d 1290 (Colo. 1990) ..ccccccccccccecs 22, 24, 29,

People v. Viduya,

703 P.2d 1281 (Colo. 1985) oeoeveeveveenee eee eeeneeneee 22, 25,

People v. Wallace,

724 P.2d 670 (Colo. 1986) ...ccccccccccccccucees 25, 28,

Rhode Island v. Innis,

446 U.S. 291 (1980) .icecccccccccs 14, 28, 30, 45,

Roberts v. State,

301 SO. 2d 859 (MISS. 1974) wicccccccccccccceecceceecense

Silverthorne Lumber Co. vy.

251

State v.

802

State v.

509

State v.

392

State v.

418

U.S. 385 (1920)

Fritschen,

P.2d 558 (Kan. 1990) .

Gardner,

A.2d 1160 (Me. 1986) .

Hohman,

A.2d 935 (Vt. 1978) ..

Koput,

N.W.2d 804 (Wis. 1988)

United States,

State v. Morse,

ee RR Re rr ee eR nee > 33

State v. O’Keefe,

ee ee ee , , Sawin ween ini i mares 33

State v. Palm,

ee ee is Sn eoce cca cusascoeeeouueeesunan 33

State v. Preece,

poe Gemee Gaw Gets De ceceeeasecécecesceenunci 33, 34

State v. Torres,

393 S.E.2d 535 (N.C.App. 1990), rev’d

on other grounds 412 S.E.2d 20 (1992) .....ccccccccccces 33

Steigler v. Anderson,

496 F.2d 793 (3d Cir. 1974),

cert. denied, 419 U.S. 1002 (1974) ....cccccccccccccccees 32

Terry v. Ohio,

See See. Ce 6008660006 edbebs cede eb eetedhuseesonman 40

United States v. Bautista,

684 F.2d 1286 (9th Cir. 1982),

cert. denied, Saw Some Seen CROCS) coocoeceséoseeseeceen 32

United States v. Bengivenga,

845 F.2d 593 (5th Cir. 1988),

cert. denied, 488 U.S. 294 (1988) ... c.cccccccecs 25, 26, 32

United States v. Bezold,

760 F.2d 999 (9th Cir. 1985),

cert. denied, 474 U.S. 1063 |) PPPPrrrTrrryiretrrreryges se 25

United States v. Boucher,

909 F.2d 1170 (8th Cir. 1990),

cert. denied, 498 U.S. 942 .. . | BPP TTrerrrrrere 32

United States v. Brady,

819 F.2d 884 (9th Cir. 1987), cert.

denied, 484 U.S. 1068 et .. | SPP errr ryyerrrrrrrrrrrrerTr Te 32

United States v. Carter,

Ses Peae FOS COED Gam. 2008) coccccvccceceecceccoenes 32, 5]

United States v. Corral-Franco,

848 F.2d 536 (5th Cir. ED 660656600 06646666 606600880048" 32

United States v. Crisco,

725 F.2d 1228 (9th Cir. 1984), cert.

denied, 466 U.S. 977 Len 6060686 606 beevebeseedéebeunas 32

viii

United States v. Dockery,

ae eee eee eee ete SE ccccuedtacesundeaknuaennas 51

United States v. Gillyard,

i eee ee ee es SOD anvécccewteccecseseacseasbbenn 32

United States v. Griffin,

* #8 fF Gf TCT Terrrr<rrrrr rrr eer 32

United States v. Hall,

421 F.2d 540 (2d Cir. 1969),

cert. denied, 397 U.S. 990 (2, BPrrerere sr Tere eT rere > Pe >

United States v. Harrell,

894 F.2d 120 (5th Cir. 1990),

cert. denied, 498 U.S. 834 (1990) ....cccccccccccccccecs 32

United States v. Irion,

482 F.2d 1240 (9th Cir. 1973),

SCOEC. GENIGG, 41464 U.B. 1086 (1973) cccccccccccecececece 32

United States v. Jones,

a ee an rn a, Se «cccnececeeccoenéaseununnan 32

United States v. Kennedy,

573 F.2d 657 (9th Cir. SVEN e686 eeeeeeseeebéesesescestbecee 32

United States v. Lennick, ,

a) a re) eee Ci. (Pn «one ee cenbdeneeuceasdnecaan 32

United States v. Leyva,

659 F.2d 118 (9th Cir. 1981),

cert. denied, 454 U.S. 1156 (1982) ...ccccccccccecccccece 32

United States v. Long,

S66 F.2G 402 (11th Cir. 1989) .ccccccccccccccececece 26, 33

United States v. Macklin,

900 F.2d 948 (6th Cir. 1990),

Cert. denied, 498 U.S. 840 (1990) ...ccccccccccccecccces 32

United States v. Manasen,

oo fe Be OF Se Pre ee eee 32

United States v. Nash,

Ff © FF. Fe 7 ar eee 51

United States v. Pena,

920 F.2d 1509 (10th Cir. 1990),

cert. denied, _ U.S. _,

fe SUSU OS ER ep a ee 32, 33

United States v. Phelps,

443 F.2d 246 (5th Cir. Pens Seeeccidecsecesutbsvssececnce 51

United States v. Phillips,

Sane Beam Seem Chee CEG. BOOT) cvccccccnsvoccvcteecctaes 33

United States v. Sharpe,

ee, ee, ae aoe we ob bo oo wa ee ones ak oe be 42

United States v. Torkington,

874 F.2d 1441 (11th Cir. De Ub bG.e 660.606.6686 Ee bk Ce ee ks 33

United States v. Wauneka,

770 F.2d 1434 (9th Cir. et” S68 66066 weees 668 646 eb cbebne 7a

Weems v. United States,

er in acecncbeinewkbeben Gedo cas Uwaweeneebuas 9

Withrow v. Williams,

U.S. eee eee SESW EAMOED cbeececuecesecseee 8, 9

Yount v. Patton,

710 F.2d 956 (3d Cir. 1983), rev’d

on othergrounds, 467 U.S. 1025 (1984) ....cecceccccce? Jae Da

CONSTITUTIONS

U.S. Const. amend. V 7

OTHER AUTHORITIES

Joo GRORE, ANNOTATION, WHAT ceccccccccccccececccecac 33, 34

Constitutes "Custodial

Interrogation Within Rule of

Miranda v. Arizona Requiring

That Suspect Be Informed of

His Federal Constitutional

Rights Before Custodial

Interrogation, 31 A.L.R.3d 565

(1970)

Wayne R. LaFave, "re g¢e666e0000e0s COC eB ecedssest 34

Encounters" and the

Constitution: Terry, Sibron,

Peters, and Beyond, 67 Mich.

L. Rev. 39 (1968)

David M. Nissman et al., Law .ivecccccccccccccee 14, 33, 34

of Confessions (1985)

Jefferson V. Smith, The

Threshold Question in Appiying

Miranda: What Constitutes

Custodial Interrogation, 25

S.C. L. Rev. 699 (1974)

Richard A. Williamson, The

Virtues (and Limits) of Shared

Values: The Fourth Amendment

and Miranda’s Concept of

Custody, 1993 U. Ill. L. Rev.

379 (1993)

Daniel Yeager, Rethinking

Custodial Interrogation, 28

Am. Crim. L. Rev. i (1991)

16th Annual Review of Criminal

Procedure: United States

Supreme Court and Courts of

Appeal 1985-1986, 75 Geo. L.J.

713 (1987)

ew eveeeeeeeeeeeeeeeeeeeee

18, 38, 39, 40, 41, 42, 43,

CASE NO. 93 = 1039

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

STATE OF COLORADO,

Petitioner

Vv.

LESLIE BENJAMIN LAFRANKIE

Respondent

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI

On Petition for Writ of Certiorari to the Colorado Supreme Court

OPINIONS BELOW

The transcript of the testimony adduced at the hearing on

Mr. LaFrankie’s motion to suppress is Appendix A.

STATEMENT OF THE FACTS

Leslie Benjamin LaFrankie was suspected of stealing a

computer from his employer, High Tech Manufacturing. (Appendix

at p.3, 1.16.) As part of the investigation, police detectives

requested that Mr. LaFrankie be removed from his work area

during work hours and be taken to the office of the president of

the employer-victim. (App. at p.18, 1.19 through p.20., 1.13.)

Mr. LaFrankie was then interrogated behind closed doors by two

police detectives seated next to hin. (App. at p.21, 1.15

through p.22, 1.20.) The interrogation was conducted on the

same premises where the crime was committed. Mr. LaFrankie

denied having taken the computer and explained how he came into

possession of a similar computer that he had at his home. (App.

at p.8, 1.2.) The detectives told Mr. LaFrankie that he was

lying. (App. at p.23, 1.17.)

The majority of the interview was conducted in this

fashion. For example, Officer Scott told LaFrankie not to

worsen his mistake by lying, (App. at p.9, 1.14.); that

LaFrankie would fail a polygraph test because he was lying,

(App. at p.26, 1.18.); that Lafrankie had "a big bright sign on

{his) forehead that says you made a mistake here;" LaFrankie,

Supra, App. to Pet. for Cert. at C-8, n.8; that LaFrankie’s

story was too coincidental to be believed, (App. at p.34, 1.9.);

that LaFrankie looked ; nervous and sweaty -- as if he were

lying, (App. at p.29, 1.22.); that he was as nervous as a cat on

a hot tin roof, (App. at p.25, 1.22.); that LaFrankie could be

used as a "poster boy for lying (App. at p.26, 1.24.);" and that

LaFrankie had insufficient funds in his checking account to

purchase a computer for $200.00 cash. (App. at p.13, 1.9.)

Nonetheless, LaFrankie steadfastly maintained his innocence

throughout most of the interrogation. (App. at p.23, 1.24

through p.24, 1.6.)

Additionally, Mr. LaFrankie was effectively told that a

polygraph would be conducted, and that he would fail it. (App.

at p.29, 1.20.) The police communicated to Mr. LaFrankie that

he would be treated more leniently by a judge if he confessed.

(App. at p.28, 1.22.) Mr. LaFrankie was told that he had

nothing to worry about if he confessed because he was not on

probation. (App., at p.30, 1.6 through 14.) Mr. LaFrankie was

told that Boulder County is extremely lenient - "the place they

sent somebody to college for murdering somebody, okay. Okay."

(App. at p.35, 1.21 - p.36, 1.1.) The police officers preyed on

Mr. LaFrankie’s religious beliefs to get him to confess, telling

him, "God will know if he is lying." (App. at p.37. 1.18.)

After about thirty minutes of this type of questioning, Mr.

LaFrankie confessed to having stolen the computer. (App. at

p.10, L.13.) In the course of the closed-door interview, Mr.

LaFrankie was never informed that he was free to leave or that

he was not in official custody. (App. at p.23, 1.20.) Neither

detective advised Mr. LaFrankie of his Miranda rights before or

during the interview. (App. at p.7, 1.19.)

Mr. LaFrankie filed a motion to suppress statements and

evidence in the trial court. The trial court found the

interrogation to be custodial and suppressed Mr. LaFrankie’s

statement because to the absence of Miranda warnings. The

prosecution appealed the trial court’s findings to the Colorado

Supreme Court. The Colorado Supreme Court affirmed the trial

court’s ruling.

The State filed a Petition for Writ of Certiorari in the

United Stated Supreme Court on December 23, 1993. The petition

was received by Respondent on the next business day, December

aT. 1993. The brief in opposition to this petition is

currently due to be filed on January 26, 1994.

SUMMARY OF THE ARGUMENT

Petitioner did not propose a modification of the definition

of “custody" for purposes of Miranda v. Arizona, 384 U.S. 436

(1966), in the state courts. Petitioner never argued to the

lower courts that Colorado improperly examined "custody" with

reference to whether "a person has been taken into custody or

otherwise deprived of his freedom of action in any significant

way," id. at 444, rather than whether there is "a formal arrest

or restraint on freedom of movement of the degree associated

with formal arrest." California v. Beheler, 463 U.S. 1121, 1125

(1983) (per curiam). As a result, this issue was never "pressed

or passed upon below," Illinois v. Gates, 462 U.S. 213, 222

(1983), and consequently this Court should refuse to exercise

its jurisdiction.

The Colorado Court correctly applied the objective,

“reasonable person" test in evaluating whether Respondent was in

"custody" for purposes of Miranda. That test conforms with the

standard announced by this Court in Berkemer v. McCarty, 468

U.S. 420 (1984). The majority of lower federal and state courts

also apply the objective standard to the Miranda "custody"

determination. Thus, Petitioner’s argument that there is a

widespread misapplication of Miranda is without merit, and the

petition for writ of certiorari should be denied.

ARGUMENT

I. THIS COURT SHOULD NOT ACCEPT JURISDICTION BECAUSE

PETITIONER’S ARGUMENT CONCERNING THE CORRECT DEFINITION OF

CUSTODY FOR MIRANDA PURPOSES WAS NOT PRESSED OR PASSED ON BELOW.

Petitioner did not propose a modification of the Miranda

rule in the state courts. Knowing full well the status of the

law in Colorado with regard to custody determinations,

Petitioner nevertheless did not raise its novel interpretation

of “res-:raints of the degree associated with arrest” nor press

for its application in any state court proceeding. The record

is devoid of any proposal for modification or reinterpretation

of the long-standing totality of circumstances test.

This Court’s disinclination to pass upon issues for the

first time on certiorari is well-settled in the caselaw. See,

e.g-., Illinois v. Gates, 462 U.S. 231 (1983); Cardinale v.

Louisiana, 394 U.S. 437 (1969). In Gates, the respondents had

filed a motion to suppress evidence seized pursuant to a warrant

in the trial court. MTheir motion to suppress was granted, and

that ruling was affirmed by both the Illinois Appellate Court

and the Illinois Supreme Court. The initial issue in the

petition for certiorari was the application of the Fourth

Amendment to a magistrate’s issuance of a search warrant on the

basis of a partially corroborated anonymous informant’s tip.

Gates, 462 U.S. at 217. This Court requested that the parties

address an additional question; whether the exclusionary rule

should be modified in particular situations. Id.

This Court declined to decide whether the exclusionary rule

should be modified, however, and based its decision on

jurisdictional grounds. Because the issue of modification was

never "pressed or passed below," it was not properly before the

Court. This Court’s teaching regarding the jurisdictional issue

in Gates is instructive in this case as well. In the Gates

Opinion, Justice Rehnquist identified several purposes

underlying the "not pressed or passed upon below" rule:

First, questions not raised below are those on which the

record is very likely to be inadequate since it

certainly was not compiled with those questions in mind.

Exactly the same difficulty exists when the State urges

modification of an existing constitutional right or

accompanying remedy .... Likewise, due regard for the

appropriate relationship of this Court to state courts

demands that those courts be given an opportunity to

consider the constitutionality of the actions of state

officials, and, equally important, proposed changes in

existing remedies for unconstitutional actions.

Finally, by requiring that the state first argue to the

State courts that the ... rule should be modified, we

permit a state court, even if it agrees with the state

as a matter of federal law, to rest its decision on an

adequate and independent state ground.

Id. at 221-22, citing Cardinale v. Louisiana, 394 U.S. 437

(1969); McGoldrick v. Compagnie Generale Transatlantique, 309

U.S. 430 (1940) (quotations omitted). The Court further noted

that "the routine restatement and application of settled law by

an appellate court [does] not satisfy the ‘not pressed or passed

upon below’ rule." Id. at 222-23.

All of the considerations explained in Gates are present

in this case. The district court and the Colorado Supreme Court

applied firmly established criteria to determine that the

Respondent was in custody and subjected to police interrogation.

The legal test for custody determinations that was applied by

the Colorado courts in this case is well-settled in Colorado,

the state courts and the federal courts. If Petitioner desired

that the Colorado courts apply the novel restriction that it has

proposed in its Petition for Writ of Certicrari, then it should

have raised that issue in the state courts, not for the first

time in its Petition to this Court. The Colorado courts have

not had the opportunity to consider this novel restriction and

to choose to rest their decisions on adequate and independent

state grounds. The Colorado court decisions involved "the

routine restatement and application of settled law" and thus

Petitioner should fail in seeking jurisdiction in this Court

because its claim for modification has not been pressed or

passed upon below.

II. THE PERCEIVED CONFLICT BETWEEN THE LAFRANKIE DECISION AND

OTHER FEDERAL AND STATE COURT DECISIONS HAS NOT RESULTED IN A

WIDESPREAD MISAPPLICATION OF MIRANDA AND THUS DOES NOT WARRANT

THE GRANTING OF CERTIORARI BY THIS COURT.

Before addressing the substantive arguments raised by

Petitioner, it is useful to have in mind the policy

considerations that the Miranda case addressed. It is against

the background of those policies that any discussion of the

application of the principles enunciated in Miranda must take

place.

The Fifth Amendment embodies one of the basic rights that

are enshrined in our Constitution, Miranda, 384 U.S. at 442, and

provides, in pertinent part, that "No person shall be compelled

in any criminal case to be a witness against himself." U.S.

Const. amend. V. "[Tjhe Fifth Amendment privilege ... serves to

protect persons in all settings in which their freedom of action

is curtailed in any significant way from being compelled to

incriminate themselves." Miranda, 384 U.S. at 467 (emphasis

added). The privilege embodies principles of humanity and civil

liberty which were secured in the mother country only after

centuries of persecution and struggle. Withrow v. Williams,

U.S. __ , 113 S. Ct. 1745, 1753 (1993); Miranda, 384 U.S. at

442. These precious rights were secured "for ages to come, and

+++» are designed to approach immortality as nearly as human

institutions can approach it." Id., quoting Cohens v. Virginia,

6 Wheat. 2634, 387 (1821).

The maxim embodied in the Fifth Amendment had its origin in

a protest against “inquisitorial and manifestly unjust methods

of interrogating accused persons. So deeply did the iniquities

of the ancient system impress themselves upon the minds of the

American colonists that the States, with one accord, made a

denial of the right to question an accused person a part of

their fundamental law, so that a maxim ... became clothed in

this country with the impregnability of a constitutional

enactment." Id. quoting Brown v. Walker, 161 U.S. 591, 596-97

(1896).

Early in this century, this Court recognized its

obligations vis-a-vis the Constitution and the Bill of Rights.

"In stating the obligation of the judiciary to apply these

constitutional rights, this Court [acknowledged] ... that

{rjights declared in words might be lost in reality. And this

has been recognized. The meaning and vitality of the

Constitution have developed against marrow and restrictive

construction." Id. at 443-44, quoting Weems v. United States,

217 U.S. 349, 373 (1910).

The Miranda court emphasized that it was against the

backdrop of these principles that the Miranda cases were

decided. "This [is] the spirit in which we delineate ... the

manner in which the constitutional rights of the individual

{can} be enforced against overzealous police practices.' It {is}

necessary ... to insure that what was proclaimed in the

Constitution ha[s} not become but a ‘form of words’ in the

hands of government officials." Id. at 444, citing Silverthorne

Lumber Co. v. United States, 251, U. S. 385, 392 (1920).

These principles reflect that notion that "a system of law

enforcement which comes to depend on the confession will, in the

long run, be less reliable and more subject to abuses than a

System relying on independent investigation. Withrow v.

Williams, 113 S. Ct. at 1753, citing Michigan v. Tucker, 417

U.S. 433, 448 n. 23 (1974) (quoting Escobedo v. Illinois, 378

U.S. 478, 488-89 (1964)).

It has long been held that the Fifth Amendment prohibition

against self-incrimination privileges a person not to answer

official questions put to him in any proceeding, civil or

1. An extensive review of the "overzealous police practices” that Miranda

intended to remedy is set forth in the Miranda Opinion at pages 445-455.

criminal, formal or informal, where the answers might

incriminate him in future criminal proceedings. Minnesota v.

Murphy, 465 U.S. 420, 426 (1984), citing Lefkowitz v. Turley,

414 U.S. 70, 77 (1973). This protection is particularly

necessary in the context of custodial interrogations because the

compulsion to speak to law enforcement officials in an isolated

setting may well be greater than in courts or other official

investigations, where there are often impartial observers to

guard against intimidation and trickery. Orozco v. Texas, 394

U.S. 324, 326 (1969), citing Miranda, 384 U.S. at 461.

Prior to Miranda, the admissibility of an accused’s

in-custody statements was judged solely by whether they were

voluntary within the meaning of the Due Process Clause. Oregon

v. Elstad, 470 U.S. 298, 304 (1985). In Miranda, recognizing

that the Fifth Amendment privilege guarantees a person subjected

to questioning "the right to remain silent unless he chooses to

speak in the unfettered exercise of his own free will," Miranda

384 U.S. at 460, quoting Malloy v. Hogan, 378 U.S. 1, 8 (1964),

the Court addressed the problem of how the privilege could be

protected from the coercive pressures that can be brought to

bear upon a suspect in the context of custodial interrogation.

The Court thus recognized that custodial interrogations, by

their very nature, generate inherently “compelling pressures

which work to undermine the individual’s will to resist and to

compel him to speak where he would not otherwise do so freely,"

Moran v. Burbine, 475 U.S. 412, 420 (1986), quoting Miranda, 384

U.S. at 467; accord, Iliinois v. Perkins, U.S. , 110 S.

RUN iisis9tii oes, es oe RD POLAT

Ct. 2394, 2397 (1990); Murphy, 465 U.S. at 430, "and that, as a

consequence, there exists a substantial risk that the police

will inadvertently traverse the fine line between legitimate

efforts to elicit admissions and constitutionally impermissible

coercion." Burbine, 475 U.S. at 426, citing New York v.

Quarles, 467 U.S. 649, 656 (1984).

The coercion inherent in custodial interrogation derives

from a number of circumstances common to questioning by law

enforcement officials: isolation, Miranda, 384 U.S. at 445, 449

(the principal psychological factor contributing to a successful

interrogation is privacy); unfamiliar surroundings, id. at 449,

450; lapse of time, id. at 451; lack of acquaintance with one’s

questioners, Murphy, 465 U.S. at 433; the incriminatory nature

of the disclosures sought, id. at 430, citing Garner v. United

States, 424 U.S., U.S. 648, 657 (1976); the fear of reprisal for

remaining silent, Perkins, 110 S. Ct. at 2397; the hope of more

lenient treatment should a confession be forthcoming, id.;

insinuations that the interrogation will continue until a

confession is obtained, Murphy, 420 U.S. at 433, citing Miranda,

384 U.S. at 468; repeated or successive interrogations,

sometimes by police acting out friendly or unfriendly roles,

Orozco, 394 U.S. at 328 (White, J. dissenting); the appearance

that the officers control the suspect’s fate, Perkins, 110 S.

Ct. at 2397; the message that the suspect has no choice but to

subjugate himself to the will of the examiner, Murphy, 465 U.S.

at 433, quoting Miranda, 384 U.S. at 457; and the use of ploys

such as cajolery and trickery, Orozco, 394 U.S. at 328 (White,

J. dissenting).

The “salient features" that the Miranda court sought to

address may be summarized as the “incommunicado interrogation of

individuals in a police-dominated atmosphere." Miranda, 384

U.S. at 445. To dissipate the overbearing compulsion inherent

in custodial interrogation, the Miranda court required the

exclusion of incriminating statements obtained during custodial

interrogation unless, prior to any questioning, the person was

warned that he has the right to remain silent, that any

statement he does make may be used against him, and that he has

a right to the presence of an attorney, either retained or

appointed. Miranda at 444. The Miranda court thus presumed that

interrogation in certain custodial circumstances is inherently

coercive, Elstad, 470 U.S. at 305, citing Quarles, 467 U.S. at

654 (emphasis added), and attempted to safeguard against that

inherent compulsion by giving the defendant the power to exert

some control over the course of the interrogation. Burbine, 475

U.S. at 411 (emphasis in original).

The Miranda opinion iterated and reiterated the absolute

necessity for officers interrogating people in custody to give

the described warnings. Orozco, 394 U.S. at 326. One of the

principal advantages of the doctrine that suspects must be given

warnings before being interrogated is the Clarity of that rule.

Berkemer v. McCarty, 468 U.S. 420, 430 (1984). Requiring

Miranda warnings before custodial interrogation thus provides

practical reinforcement for the Fifth Amendment privilege.

Elstad, 470 U.S. at 305, citing Quarles, 467 U.S. at 654.

Failure to administer Miranda warnings creates a

presumption of compulsion. Id. at 307. While failure of the

police to administer Miranda warnings does not mean that the

statements received have actually been coerced, it does mean

that courts will presume the privilege against compulsory

self-incrimination has not been intelligently exercised. Id. at

310 (emphasis added).

The policies underlying the Miranda decision have not

dissipated over time. In the years since the decision in

Miranda, this Court has frequently reaffirmed the central

principle established by that case: "Miranda forbids coercion."

Perkins, 110 S. Ct at 2397. The purposes of the safeguards

initially prescribed by Miranda and still in full force today

can be summarized as follows: to ensure that the police do not

coerce or trick captive suspects into confessing, to relieve the

inherently compelling pressures generated by the custodial

setting itself, which work to undermine the individual’s will to

resist, and, as much as possible, to free courts from the task

of scrutinizing individual cases to try to determine, after the

fact, whether particular confessions were voluntary. Berkemer

Vv. McCarty, 468 U.S. at 433.

A. The Colorado Court’s Definition of “Custody” for Miranda

Purposes is the Same or Equivalent to the Definition Applied by

other Federal and State Courts.

e The United States Supreme Court does not adhere to a rigid

definition of custody.

In Miranda, this Court defined "custodial interrogation" as

"questioning initiated by law enforcement officers after a

person has been taken into custody or otherwise deprived of his

freedom of action in any significant way." Miranda, 384 U.S. at

444. The definition chosen created an elastic type of custody,

David M. Nissman, et al., Law of Confessions §4.3 at 85 (1985),

one that Petitioner now seeks to unduly contract. Since then

this Court has reiterated this definition in cases construing

the Miranda decision. Bradley v. Ohio, 110 S. Ct. 3258

(1990) (cert. denied)(Marshall, J., dissenting); Maine v.

Thibodeau, 475 U.S. 1144, 1146 (1986) (cert. denied) (Burger, J.,

dissenting); Berkemer v. McCarty, 468 U.S. 420, 435 (1984);

California v. Beheler, 463 U.S. 1121, 1123 (1983) (per curiam);

Rhode Island v. Innis, 446 U.S. 291, 298 (1980); Oregon v.

Mathiason, 429 U.S. 492, 494 (1977) (per curiam); Beckwith v.

United States, 425 U.S. 341, at n.6 (1976); Orozco v. Texas, 394

U.S. 324, 327 (1969); Mathis v. United States, 391 U.S. 1, 5

(1968). See Oregon v. Elstad, 470 U.S. 298, 309 (1985).

Petitioner makes its case for review by this Court on the

premise that both the trial court and the Colorado Supreme Court

interpreted Miranda too broadly in this case, and that state and

federal courts around the nation have given “talismanic power"

to the phrase “otherwise deprived of his freedom of action in

any significant way" for determinations of custody. (Pet. for

Cert. at 9-12.) Petitioner cites to language in Berkemer v.

McCarty, 468 U.S. 420 (1984); Minnesota v. Murphy, 465 U.S. 420

(1984); and Beheler v. California, 463 U.S. 1121 (1983), in

Support of the novel proposition that there can be custody only

in situations where there is "formal arrest or restraints of the

degree associated with arrest." What Petitioner desires is that

"talismanic power" be accorded to the phrase "restraints of the

degree associated with arrest," and for that language to modify,

or more probably replace, the long-standing reasonable person

test*® by preventing the consideration by lower courts of the

myriad factual contexts in which a custodial interrogation can

take place.

Petitioner misapprehends the nature of this Court’s

writings in the progeny spawned by Miranda. The first

Significant decision from this Court following Miranda was

Mathis v. United States, 391 U.S 1 (1968). Mathis was

incarcerated in a Florida prison on an unrelated charge when an

IRS agent questioned him briefly pursuant to a routine tax

investigation. Id. at 2. Once Mathis incriminated himself, the

government converted the investigation into a tax-fraud

prosecution. Id. at 3. This Court found that Miranda warnings

Should have been administered on the grounds that the Miranda

opinion in no way limited its application to persons who were in

2. See discussion infra part II.B.

cet RD ctr te ee

eT I ES

custody for the particular case under investigation. Id. at 4-5.

One year later, the Court was presented with its first

opportunity to address the application of Miranda in a setting

that, unlike a police station or a prison, is not inherently

coercive in nature. In Orozco v. Texas, 394 U.S. at 324 (1969),

this Court held that the questioning of a suspect under arrest

in the confines of his boardinghouse room was the type of

circumstance that was within the scope of Miranda. Id. at

326-27.

The reach of Miranda next arose in Beckwith v. United

States, 425 U.S., at 341 (1976). Beckwith bears some

relationship to both Mathis and Orozco in that IRS agents

interrogated a suspect in a private home, Beckwith, 425 U.S. at

342; the Court, however, held that Miranda warnings were not

required. Id. There are numerous distinctions, however, that

Support the Court’s ruling. Unlike Mathis, who answered

questions in a prison cell, Beckwith spoke with agents from the

home of a friend for whom he was house-sitting. Id. at 342.

Whereas Orozco was rousted from bed at 8:00 a.n. by four

officers who forcefully entered his room, Orozco, 394 U.S. at

325, Beckwith faced police at a more reasonable hour and in a

less volatile setting. Beckwith, 425, U.S. at 342. He also

received a nearly complete panoply of warnings, id. at 348-49

(Marshall, J., concurring), that were deficient only in that

they failed to advise Beckwith, who held a white collar job, of

an indigent’s right to appointed counsel. Id.

One year after Beckwith, the Court decided Oregon v.

Mathiason, 429 U.S. 492 (1977) (per curiam). Mathiason was a

watered-down version of a station house interrogation. There,

the police were investigating an unsolved theft when they ran

across Mathiason - a parolee and friend of the complainant’s

son. After an officer left his card at Mathiason’s apartment,

Mathiason returned the call and arranged to meet the officer at

the station house, only two blocks away. Id. at 423. Police

told Mathiason he was not under arrest. Id. Early in the

half-hour interview, Mathiason confessed after being told,

falsely, that his fingerprints had been found at the scene of

the crime. Id. In holding that the confession was admissible,

the Court found that Miranda warnings “are required only when

there has been such a restriction on a person’s freedom as to

render him ‘in custody.’" Id. at 495,

The case of California v. Beheler, 463 U.S. at 1121

(1983) (per curiam), was the next Significant decision in this

area, coming seventeen years after Miranda. Beheler called the

police to report that a woman he knew from a drug transaction

had been fatally shot, and that his confederates had buried the

murder weapon in Beheler’s backyard. Beheler at 1122. After a

consent to search uncovered the weapon, Beheler agreed to the

officer’s suggestion that he accompany him to the station house

for questioning. Id. Police advised him that he was not under

arrest, then interviewed him for half an hour and obtained a

confession. A few days later, police arrested and warned

Beheler, who waived his Miranda rights and again confessed,

vowing that his prior confession was voluntary. Id.

in the Beheler case, the Court commenced its legal analysis

by stating: “We held in Miranda that ‘([b)y custodial

interrogation, we mean questioning initiated by law enforcement

officers after a person has been taken into custody or otherwise

deprived of his freedom of action in any Significant way.’"

Beheler, at 1123, quoting Miranda, 384 U.S. at 444. Only later

in the opinion did the court Suggest, in a single sentence of

arguable dictum,’ the language that Petitioner now propounds as

"talismanic": "the ultimate inquiry is Simply whether there is

a ‘formal arrest or restraint on freedom of movement’ of the

degree associated with a formal arrest." Beheler, at 1125,

citing Mathiason at 495.

In Minnesota v. Murphy, 465, U.S. at 420 (1984), the

Court’s next precnouncement in the area of custodial

interrogation, Mr. Murphy’s probation officer, aware that he

had admitted to a rape and murder to a treatment provider, wrote

to Murphy and asked him to contact her. Id. at 423. Upon

receiving the letter, Murphy made an appointment to meet with

his probation officer at her office. Id. at 423. Conditions of

probation previously imposed by the court required him to report

to his probation officer as directed, and to be truthful with

the probation officer in all matters. Id. at 422. At their

meeting the probation officer confronted Murphy with the

information she had received from his counselor, and Murphy

‘. nan ke ele The Virtues (and Limits) of Shared Values: The

Fourth Amendment and Miranda’s Concept of Custody, 1993 U. Ill. LR. 379,

380 n. 11, 392 (1993)

confessed that he had committed the rape and murder. Id. at

423-424. The Court held that the probationer was not in custody

for Miranda purposes. Although the case does refer to that

language in Beheler which has taken on "talismanic" effect for

Petitioner, the comparatively familiar, nonrestrictive nature of

the encounter is certainly a less-than-significant deprivation

of freedom. See Daniel Yeager, Rethinking Custodial

Interrogation, 28 Am. Crim. L. Rev. 1, 17 n. 89 (1991).

The facts of these latter four cases are a far cry from the

Shared “salient features" of the cases that comprised the

Miranda decision. There is no reason why a non-coercive station

house meeting should automatically yield inadmissible evidence

based solely on its locale. Id. at 15. Miranda does not require

the exclusion of statements obtained in a presumptively coercive

setting under arguably uncoercive circumstances. Id. Nor does it

mandate the suppression of uncoerced statements from a

probationer.

It is clear in these last two cases that, in utilizing the

language which has become "talismanic" for Petitioner, this

Court was simply trying to restate, without being repetitive,

what it meant by "otherwise deprived of his freedom of action in

any significant way." There is nothing in the Court’s brief

opinion in Beheler to suggest that it intended to replace

"otherwise deprived of his freedom of action in any significant

way" with "restraint on freedom of movement of the degree

associated with arrest." To the extent that this Ccurt has

ee ee ee ee ee ee ee ee ee ee ee ee ee ee

4. It is unlikely that this Court would choose to modify some of the most

repeated the "restraint" language first set forth in Beheler in

its subsequent opinions, it does so only in an effort to offer

parallels to the Miranda definition of custody, which itself is

frequently reiterated in those same opinions. E.g., Bradley v.

Chio, 110 S. Ct. at 3259 (cert. denied) (Marshall, J.,

dissenting); Berkemer, 425 U.S. at 435, 440; New York v.

Quarles, 467 U.S. 649, 555, 662 (O’Connor, J., concurring and

dissenting) (1984); Beheler, 463 U.S. at 1223, 1125 (1983).

Petitioner also relies on this Court’s pronouncements in

Berkemer to support its position that "custody" for Miranda

purposes requires either formal arrest or "a restraint on

freedom of movement of the degree associated with arrest." (Pet.

for Cert. at 7-8.) However, the holding of the Court in that

case was that persons temporarily detained pursuant to routine

traffic stops are presumptively not in custody for purposes of

Miranda.” The Court did not purport to re-address Miranda’s

definition of custody, but only to determine whether a

particular category of Fourth Amendment seizures constitute per

se a significant deprivation of a person’s freedom of action,

thereby triggering the need for Miranda warnings.

Petitioner cites Berkemer out of its factual context in

Crucial language of what is arguably its most significant decision in the

realm of criminal procedure in a per curiam Opinion, without receiving

briefs or arguments on the merits. See Beheler at 1127 (Stevens, J.,

dissenting.)

5. The Court also indicated that if a motorist detained pursuant to a

traffic 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, 468 U.S. at 440.

proposing the modification of the Miranda rule. In Berkemer v.

McCarty, 468 U.S. 420 (1984), this Court explicitly stated its

purposes: to resolve confusion "regarding the applicability of

our ruling in Miranda to interrogations involving minor offenses

and to questioning of motorists detained pursuant to traffic

stops." Id. at 426-27. The case involved a traffic stop where

the defendant claimed that his responses to roadside questioning

should have been suppressed because he was subjected to

custodial interrogation and not advised of his Miranda rights.

This Court held that, in general, a typical traffic stop and

detention would not trigger the need for a Miranda advisement

because "(fjirst, detention of a motorist pursuant to a traffic

stop is presumptively temporary and brief ... [and] [s]econd,

circumstances associated with the typical traffic stop are not

such that the motorist feels completely at the mercy of the

police .... [T]he atmosphere surrounding an ordinary traffic

stop is substantially less ‘police dominated’ than that

surrounding the kinds of interrogation at issue in Miranda

itself ...." Id. at 437-39. This Court renewed its commitment

to Miranda, and simply limited its application in factual

circumstances like those found in Berkemer: "Fidelity to the

doctrine announced in Miranda requires that it be enforced

strictly, but only in those tyves of situations in which the

concerns that powered the decision are implicated." Id. at 437.

Thus, the holding of Berkemer is somewhat narrow and

limited to its facts: it does not, contrary to what Petitioner

suggests, supply critical analysis to that necessary for the

a yo

facts in this case. In this case, circumstances are present

that go to the heart of this Court’s holding in Miranda. Mr.

LaFrankie the Respondent, was subjected to over thirty minutes

of browbeating and interrogation in a totally incommunicado,

police-dominated atmosphere; it is precisely this context in

which Miranda was meant to apply. See Miranda, 384 U.S. at

445-58.

ne The Colorado Court’s definition of custody is consistent

with that articulated by this Court.

The Colorado courts have consistently cited the original

language of the Miranda decision in defining custody for

purposes of the Miranda warnings. Those warnings are required

when a person is subjected to police interrogation after having

been "taken into custody or otherwise deprived of his freedom of

action in any significant way." People v. Parada, 533 P.2d 1121

(Colo. 1975), quoting Miranda, U.S. 348 at 444. Accord People

Vv. Hamilton, 831 P.2d 1326, 1330 (Colo. 1992); People v.

Probasco, 795 P.2d 1330, 1332 Colo. 1990), cert. denied, 498

U.S. 999 (1990); People v. Lupy Trujillo, 785 P.2a 1290,

1293 (Colo. 1990); People v. Julian Trujillo, 784 P.2d 788, 791

(Colo. 1990); People v. Viduya, 703 P.2d 1281, 1286 (Colo.

1985), People v. Thiret, 685 P.2d 193, 203 (Colo. 1984; People

v. Johnson, 671 P.2d 958, 961 (Colo. 1983).

Colorado, like the United States Supreme Court, recognizes

that custody encompasses more than formal arrest situations.®

6. E.g., Pennsylvania v. Bruder, 488 U.S. 9 (1988) (Berkemer did not

announce an absolute rule for all motorist detentions ... lower courts must

be vigilant that police do not delay formally arresting detained motorists

People v. Thomas, 839 P.2d 1174, 1179 (Colo. 1992). As a

result, custody includes, but is not limited to, the situation

in which the defendant is actually placed under arrest.

Probasco, 795 P.2d at 1332. "A person obviously is ‘in custody’

when that person has been subjected to the constraints

associated with a formal arrest." Thomas, 839 P.2d at 1178,

quoting Julian Trujillo, 784 P.2a 788, 791 (Colo. 1990). The

Miranda requirements, however, are not limited to formal

arrests, but also include police interrogations conducted under

circumstances where the person interrogated has been deprived of

his freedom of action in any significant way, People v. Haury,

859 P.2d 889, 893 (Colo. 1993); Hamilton, 831 P.2d at 1330;

Julian Trujillo, 784 P.2d at 791 , by the attendant

circumstances. People v. Algien, 501 P.2dad 468, 471 (Colo.

1972). "{IjJn the absence of actual arrest, something must be

said or done by the authorities, whether in their manner of

approach or in the tone or extent of their questioning, which

indicates that they would not have heeded a request to depart or

to allow the suspect “to do so." Parada, 533 P.2d at 1123,

quoting United States v. Hall, 421 F.2a 540, 545 (2d Cir. 1969),

cert. denied, 397 U.S. 990 (1970).

and subjecting then to sustained and intimidating interrogation at the scene

of their initial detention); Berkemer, 468 U.S. at 440 (if a motorist

detained pursuant to a traffic stop is subjected to treatment that renders

him "in custody," he will be entitled to the protections prescribed by

Miranda); Beheler, 463 U.S. at 1125 (to determine whether a suspect is in

custody for purposes of Miranda, the inquiry is whether there is a formal

arrest or restraint on freedom of movement of the degree associated with a

formal arrest); Mathiason, 429 U.S. at 495 (Miranda warnings are required

where there has been such a restriction on a person’s freedom as to render

him "in custody”).

Petitioner argues that the Colorado Court ignored the test

for custody articulated by this Court in Beheler and Berkemer in

deciding this and other cases. (Pet. for Cert. at 8.) To the

contrary, Colorado has continued to faithfully adhere to the

language of Miranda which definitively states the test to be

applied, rather than deciding cases by reference to subsequent

language which is merely a restatement of the original

definition. Further, the Colorado Court’s fidelity to the

Original language of the Miranda case has not, as Petitioner

argues, resulted in an expansion of the situations in which

compliance with Miranda is required. (Pet. for Cert. at 10.)

Additionally, there is a serious omission in Petitioner’s

brief which undermines Petitioner’s arguments in this regard.

Petitioner has ignored of the fact that this Court announced in

Berkemer that the relevant inquiry for determining whether a

Suspect was "in custody" is "how a reasonable man in the

Suspect’s position would have understood his situation."

Berkemer, 468 U.S. at 442. Moreover, Petitioner fails to inform

this Court that the Colorado Court, in this case and its

predecessors, has diligently and repeatedly applied this test in

analyzing whether a particular situation amounted to "custody"

for Miranda purposes. People v. LaFrankie, 858 P.2d 702, (Colo.

1993); Haury, 859 P.2d at 893; People in the Interest of J.C.,

844 P.2d 1185, 1189 (Colo. 1993); Thomas, 839 P.2d at 1178;

Hamilton, 831 P.2d at 1330; People v. Gennings, 808 P.2d 839,

845 (Colo. 1991); Probasco, 795 P.2d-—at.1334; People v. Horn,

790 P.2d 816, 818 (Colo. 1990); Lupy Trujillo, 785 P.2d at 1293;

eS Te eT... eee

EL AEP TIE

| F

Julian Trujillo, 784 P.2d at 791; People v. Cleburn, 782 P.2d

784, 786 (Colo. 1989), cert. denied, 495 U.S. 923 (1990); People

v. Milhollin, 751 P.2d 43, 49 (Colo. 1988); People v. Sandoval,

736 P.2d 1201, 1203 (Colo. 1987); People v. Harper, 726 P.2d

1129, 1131 (Colo. 1986); People v. Wallace, 724 P.2d 670, 673

(Colo. 1986); People v. Archuleta, 719 P.2d 1091, 1092 (Colo.

1986); Viduya, 703 P.2d at 1286; People v. Black, 698 P.2d 766,

768 (Colo. 1985); Thiret, 685 P.2d at 203; Johnson, 671 P.2d at

961; Parada, 533 P.2d at 1123; Algien, 501 P.2d at 471. A more

complete discussion of this test, infra Part II.B.2., will make

it apparent that the Colorado Court has a long and steady

history of complying with the spirit of Miranda and its progeny.

2 Other Federal Courts rely on definitions of custody that

are functionally identical to the Colorado Court’s definition.

Lower courts that have addressed the "custody" issue in the

years since Miranda fall into three general categories. Some

courts, like Colorado, have continued to rely on the definition

for custody originally set forth in the Miranda Opinion. These

courts evaluate whether a suspect is "in custody or otherwise

deprived of his freedom of action in any significant way."

E.g., United States v. Bezold, 760 F.2d 999 (9th Cir. 1985),

cert. denied 474 U.S. 1063 (1986); McCown v. Callahan, 726 F.2d

1 (lst Cir. 1984), cert. denied, 469 U.S. 839 (1984). (See also

Pet. for Cert. at 11-12.) A second group examines whether there

has been a "restraint on freedom of movement of the degree

associated with formal arrest." E.g-., United States v.

Bengivenga, 845 F.2d 593, (5th Cir. 1988), cert. denied, 488

U.S. 294 (1988). (See also Pet. for Cert. at 10 n. ae) This is

an obvious reference to the language of Beheler. A third group

of courts, eschewing any of the formalistic language of this

Court’s opinions, asks simply whether the individual being

questioned would not be free to leave. E.g., United States v.

Long, 866 F.2d 402 (11th Cir. 1989).

These lower courts are simply articulating parallel

definitions of "custody," and there is nothing to indicate that

application of the law to the facts in these cases has resulted

in rulings that are inconsistent with the principles underlying

Miranda. Surely this Court would have seized the cpportunity to

address this issue before now if misapplication of Miranda and

its progeny was resulting in a "widespread" miscarriage of

justice. Moreover, almost all lower courts apply an objective

test’ to determine whether an individual was in custody for

Miranda purposes. The obvious conclusion to be drawn is

twofold: first, the phraseology of the definition of custody,

within certain bounds, is largely irrelevant since the lower

courts’ decisions demonstrate continuing fidelity to the

principles of Miranda and its progeny; and second, it may well

be more important to a correct resolution that courts apply the

objective test than that they state the definition of custody in

precisely the same way.

7. See infra part II.B.3.

B. Colorado Like Most Federal and State Courts, Applies the

Objective Test to Determine "Custody" for Purposes of Miranda.

Ee The United States Supreme Court evaluates "custody" under

the "reasonable person" standard.

Although the Miranda court defined what it meant by

custodial interrogation, it set forth no specific test or

standard to employ in applying that definition. Implicit in

Miranda and its early offspring, however, is the notion that

courts must make the determination on a case-by-case basis.®

That notion first became explicit in Beheler, where the Court

stated that "the circumstances of each case must certainly

influence a determination of whether a suspect is ’in custody.’"

Beheler, 463 U.S. at 1125.

This Court first announced the standard to be applied in

determining whether a suspect was in custody for purposes of

Miranda warnings in Berkemer v. McCarty, 468 U.S. 420 (1984).

There, the Court held that "the only relevant inquiry is how a

reasonable man in the suspect’s position would have understood

his situation." Id. at 442. In a footnote, the Court stated its

reasons for adopting this approach: "An objective, reasonable

man test is appropriate because, unlike a subjective test, it is

not solely dependent either on the self-serving declarations of

the police officers or the defendant nor does it place upon the

police the burden of anticipating the frailties or

idiosyncrasies of every person whom they question." Id. , n.35,

8. See discussion supra part II. A., pp. 13-20.

quoting People v. P., 233 N.E.2d 255, 260 (N.Y. 1967). That

the objective test is the standard favored by this Court was

only recently reaffirmed in its decision in Illinois v. Perkins,

110 S. Ct. 2394 (1990): "Coercion is determined from the

perspective of the suspect." JId., at 2397, citing Rhode Island

v. Innis, 446 U.S. 291, 301 (1980), and Berkemer, 468 U.S. at

442.

Be The Colorado Court evaluates "custody" under the

“reasonable person" standard.

Like the United States Supreme Court, Colorado has held

that "the determination of when custody has been imposed turns

on the objective assessment of whether a reasonable person in

the suspect’s position would consider oneself deprived of his or

her freedom of action in any significant way," e.g., People in

the Interest of J.C., 844 P.2d at 1189, "during a police

interrogation in which the suspect was exposed to the risk of

self-incrimination." E.g., Julian Trujillo, 784 P.2d at 791.”

Under the objective standard, neither the interrogating

officer’s subjective state of mind nor the Suspect’s mental

State is conclusive on the issue of whether a reasonable person

in that situation would have considered the interrogation to be

9. The Colorado Supreme Court has restated this test in two other ways: (1)

"{[I]n determining whether a person is in Custody, a court must consider

wh other a reasonable person in the Suspect’s position would consider himself

Significantly deprived of his liberty,” Archuleta, 719 P.2d at 1092; citing

Black, 688 P.2d at 766; Thiret, 685 P.2d at 193; Johnson, 671 P.2d at 958,

and (2) "The question of custody turns on an objective assessment of 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 formal

arrest," Wallace, 724 P.2d at 673, citing Viduya, 703 P.2d at 1286, Black,

698 P.2d at 768; Johnson, 671 P.2d at 961.

a re

custodial. Hamilton, 831 P.2d at 1330, citing Lupy Trujillo,

785 P.2d at 1293, Cleburn, 782 P.2d at 786. Accord People in the

Interest of J.C., 844 P.2d at 1190; Black, 1698 P.2da at 786."

Like the United States Supreme Court, Colorado has determined

that the reasonable person standard is the controlling test

because, unlike a subjective test, it “is not solely dependent

either on the self-serving declarations of the police officers

or the defendant nor does it place upon the police the burden of

anticipating the frailties or idiosyncrasies of every person

whom they question." Lupy Trujillo, 785 P.2d at 1293, quoting

Berkemer, 468 U.S. at 442 n.35 (quoting People. v. P., 233

N.E.2d at 260; Hamilton, 831 P.2d at 1330; Gennings, 808 P.2d

at 845.

"The issue of custodial interrogation is essentially a

factual question that requires a trial court to consider the

totality of circumstances surrounding the suspect’s encounter

with the police, then to assess the credibility of witnesses and

to weigh their testimony, and finally to apply the correct legal

standard to the facts as found by the court." Hamilton, 831

P.2d at 1331; accord Haury, 859 P.2d at 893, citing Horr, 790

P.2d at 818; Johnson, 671 P.2d at 962. While an inquiry into

10. Cf. Harper, 726 P.2d at 1131 quoting People v. Black, 698 P.2d at 768,

(testimony by a police officer that he would not have allowed the defendant

to leave the scene of the accident has no bearing on the custody issue).

However, an officer’s subjective intent is relevant in applying the

reasonable person standard if the officer in any way communicated his intent

to the suspect. Cf. People v. Black, 698 P.2d 766 (Colo. 1984) (police

officer’s subjective state of mind has no bearing on the custody issue where

the offic does no unica his intentions to the suspect); accord

People v. Harper, 726 P.2d 1129 (Colo. 1986).

the totality of the circumstances surrounding the interrogation

will be open-ended, the more prominent factors for consideration

include the following:

the time, place'' and purpose of the encounter; the

persons present during the interrogation; the words

spoken by the officer to the defendant; the officer’s

tone of voice and general demeanor; the length and mood

of the interrogation; whether any limitation of

movement or other form of restraint was placed on the

defendant during the interrogation; the officer’s

response to any questions asked by the defendant;

whether directions were given to the defendant during

the interrogation; and the defendant’s verbal or

nonverbal response to such directions.

Julian Trujillo, 784 P.2d at 79i, quoting Thiret, 685 P.2d at

203; Accord Haury, 859 P.2d at 893; People in the Interest of

J.C., 844 P.2d at 1189; Probasco, 795 P.2d at 1332; Horn, 790

P.2d at 818; Lupy Trujillo, 785 P.2d at 1292; Cleburn, 782 P.2d

11. One of the factors set forth above has been the subject of more than the

usual amount of discussion - the location of the interrogation. The place

élone is not conclusive of whether questioning has occurred in a custodial

setting. Milhollin, 751 P.2d at 50. Custodial interrogation requiring the

Giving of Miranda warnings does not necessarily refer to police station

interrogation. Id., Johnson, 671 P.2d at 961; Parada, 533 P.2d at 1122.

Conversely, the fact that an interview takes place at a police station is

not determinative of the custody issue. Horn, 790 P.2d at 818. Not all

Station house interrogations rise to the level of custodial interrogation.

Johnson, 671 P.2d at 961. By the same token, however, the initial

voluntariness of a person’s presence at the station house does not preclude

the determination that his presence thereafter is custodial in nature.

Horn, 790 P.2d at 818; Algien, 501 P.2d at 470.

These decisions parailel this Court’s decisions dealing with the

location of the interrogation. The following cases found a non-stationhouse

setting to be "custodial": E.g-., Rhode Island v Innis, 446 U.S. 291

(1980)(police car); Orozco v. Texas, 394 U.S. 324 (1969) (defendant’s

bedroom); Mathis v. United States, 391 U.S. 1 (1968) (prison cell during

defendant sentence for an unrelated offense). On the other hand, this Court

has recognized that not all stationhouse interrogations are "custodial."

California v. Beheler, 463 U.S. 1121 (1983) (statisonhouse interrogation was

not a “custodial interrogation” which required Miranda advisement); Oregon

v. Mathiason, 429 U.S. 492 (1977) (same).

at 786; Sandoval, 736 P.2d at 1203; Wallace, 724 P.2d at 723;

Black, 698 P.2d at 768. See also Milhollin, 751 P.2d at 49-50;

Harper, 726 P.2d at 1131; Johnson, 671 P.2d at 962; People v.

Rodriquez, 645 P.2d 857, 860 (Colo. 1982).

Thus, a review of the pertinent Colorado law illustrates

that Colorado is closely in step with this Court in its

development of the standard to be applied in assessing whether

"custody" exists. Although this Court has not explicitly held

that the totality of circumstances Surrounding the suspect’s

encounter with the police should be examined to determine

whether the interrogation was "custodial," this Court has

indicated in the past that "the circumstances of each case must

certainly influence [such] a determination ...." Beheler, 463

U.S. at 1125. Additionally, this Court has engaged in a de

facto "totality of circumstances" analysis in deciding "custody"

issues. See supra note 8. Even in this regard, then,

Colorado’s mode of analysis is consistent with, if more explicit

than, that applied by this Court.

2 The majority of lower courts evaluate "custody" under the

"reasonable person" standard.

A survey of the lower courts indicates that the majority of

federal appellate courts also employ an objective, reasonable

person test to determine whether custody has attached for Fifth

Amendment purposes. See Fisher v. Scafati, 439 F.2d 307 (lst

Cir.), cert. denied, 403 U.S. 939 (1971); see United States v.

Hali, 421 F.2d 540 2nd Cir. 1969), cert. denied, 397 U.S. 990

(1970); see Yount v. Patton, 710 F.2d 956 (3d Cir. 1983), rev’d

on other grounds, 467 U.S. 1025 (1984); see Steigler v.

Anderson, 496 F.2d 793 (3d Cir. 1974), cert. denied, 419 U.S.

1002 (1974); Davis v. Allsbrooks, 778 F.2d 168 (4th Cir. 1985);

see Moore v. Ballone, 658 F.2d 218 (4th Cir. 1981); United

States v. Harrell, 894 F.2d 120 (5th Cir. 1990), cert. denied,

498 U.S. 834 (1990); United States v. Corral-Franco, 848 F.2d

536 (5th Cir. 1988); United States v. Bengivenga, 845 F.2d 593

(Sth Cir. 1988), cert. denied, 488 U.S. 294 (1988); United

States v. Macklin, 900 F.2d 948 (6th Cir. 1990), cert. denied,

498 U.S. 840 (1990); United States v. Lennick, 917 F.2d 974 (7th

Cir. 1990); United States v. Griffin, 922 F.2d 1343 (8th Cir.

1990); United States v. Boucher, 909 F.2d 1170 (8th Cir. 1990),

cert. denied, 498 U.S. 942 (1990); United States v. Carter, 884

F.2d 368 (8th Cir. 1989); see United States v. Jones, 630 F.2d

613 (8th Cir. 1980); United States v. Manasen, 909 F.2d 1357

(9th Cir. 1990); United States v. Brady, 819 F.2d 884 (9th Cir.

1987), cert. denied, 484 U.S.‘1068 (1988); United States v.

Wauneka, 770 F.2d 1434 (9th Cir. 1985); United States v.

Gillyard, 726 F.2d 1426 (9th Cir. 1984); United States v.

Crisco, 725 F.2d 1228 (9th Cir. 1984), cert. denied, 466 U.S.

977 (1984); United States v. Bautista, 684 F.2d 1286 (9th Cir.

1982), cert. denied, 459 U.S. 1211 (1983); United States v.

Leyva, 659 F.2d 118 (9th Cir. 1981), cert. denied, 454 U.S. 1156

(1982); United States v. Kennedy, 573 F.2d 657 (9th Cir. 1978);

United States v. Irion, 482 F.2d 1240 (9th Cir. 1973), cert.

denied, 414 U.S. 1026 (1973); see Lowe v. United States, 407

F.2d 1391 (9th Cir. 1969); United States v. Pena, 920 F.2d 1509

(10th Cir. 1990), cert. denied, U.S. » £433 8.Ct. 28062

(1991); Cordoba v. Hanrahan, 910 F.2d 691 (10th Cir. 1990),

cert. denied, 498 U.S. 1014 (1990); United States v. Torkington,

874 F.2d 1441 (lith Cir. 1989); United States v. Long, 866 F.2d

402 (11th Cir. 1989); United States v. Phillips, 812 F.2d 1355

(llth Cir. 1987). See generally David M. Nissman, et al., Law

of Confessions §4:10 Table 4-1, at 100 (1985); J.F. Ghent,

Annotation: What Constitutes "Custodial Interrogation Within

Rule of Miranda v. Arizona Requiring That Suspect Be Informed of

His Federal Constitutional Rights Before Custodial

Interrogation, 31 A.L.R.3d 565, § 6 (1970); 16th Annual Review

Of Criminal Procedure: United States Supreme Court and Courts

Of Appeal 1985-1986, 75 Geo. L.J. 713, 827-828 (1987).

Many states besides Colorado also apply the objective test.

E.g-, State v. Morse, 617 P.2d 1141 (Ariz. 1980); People v.

Arnold, 426 P.2d 515 (Cal. 1967), overruled on other grounds by

Walker v. People, 763 P.2d 852 (1988); People v. Lucas, 548

N.E.2d 1003 (Ill. 1989); State v. Fritschen, 802 P.2d 558 (Kan.

1990); State v. Gardner, 509 A.2d 1160 (Me. 1986); Myers v.

State, 240 A.2d 288 (Md. App. 1968); People v. Lumley, 398

N.W.2d 474 (Mich. App. 1986); see State v. Palm, 299 N.W. 2d 740

‘Minn. 1980); see Roberts v. State, 301 So. 2d 859 (Miss. 1974);

People v. P., 233 N.E.2d 255 (N.Y. 1967); State v. Torres, 393

S.E.2d 535 (N.C.App. 1990), rev’d on other grounds, 412 S.E.2d

20 (N.C. 1992); State v. O’Keefe, 617 P.2d 938 (Or. App. 1980);

Commonwealth v. Marabel 283 A.2d 285 (Pa. 1971); State v.

Hohman, 392 A.2d 935 (Vt. 1978); State v. Preece, 383 S.E.2d 815

rr r

(W.Va. 1989); State v. Koput, 418 N.W.2d 804 (Wis. 1988). See

generally David M. Nissman, et al., Law of Confessions §4.10 at

100 n.53 (1985); J.F. Ghent, Annotation, Supra, § 6.

Clearly, this is the test which has gained the widest

approval among the courts. Although a subjective test is

Supported by considerable logic,'* the objective is more

Susceptible of proof. As in many other areas of law, courts

have found the workings of an individual mind are too complex to

enable the use of a truly subjective standard. Jefferson v.

Smith, , The Threshold Question in Applying Miranda: What

Constitutes Custodial Interrogation, 25 S.C. L. Rev. 699, 713

(1974). Under these conditions, courts have adopted a sta dard

which at least approximates the proper result in the noruwal

case, and one which can be proven with relative accuracy. Id.

The objective standard is a reasonable solution to the problem.

Id.

Contrary to Petitioner’s argument, then, there is no

"widespread confusion" among the lower courts, including

Colorado, concerning when the requirements of Miranda are

applicable. To the contrary, nearly all the Federal Circuit

Courts of Appeal, and many state courts, including Colorado,

apply the objective, reasonable person test first set forth in

Berkemer to the determination of "custody" for purposes of

12. The person who honestly but unreasonably thinks he is under arrest has

been subjected to precisely the same custodial pressures as the person whose

belief in this regard is reasonable. Wayne R. LaFave, "Street Encounters"

and the Constitution: Terry, Sibron, Peters, and Beyond, 67 Mich. L. Rev.

39, 99 (1968).

Miranda. Colorado is thus squarely in the mainstream in this

regard. By urging this Court tc examine whether "custody"

should be evaluated with reference to "restraints of the degree

associated with arrest" rather than the parallel language

“otherwise deprived of his freedom of action in any significant

way," Petitioner seeks to divert this Court away from the more

appropriate inquiry of "how a reasonable man in the suspect’s

position would have understood his situation." Berkemer,468 U.S.

at 422. In directing this Court to examine definitional

language instead of the substantive test that is employed to

effectuate this language, Petitioner disingenuously leads this

Court in a direction that will generate, rather than curb,

"widespread confusion" in this settled area of criminal law.

Cc. Petitioner’s Proposed Definition of Custody Lacks Guidance

and Unduly Limits the Applicability of Miranda Warnings.

Petitioner’s argument that the controlling language for

determining whether someone is in custody for purposes of

Miranda is “arrest or restraints to a degree associated with

formal arrest" suffers from another flaw. This phraseology

tends to collapse the separate concepts of custody and

Significant deprivations of freedom Originally articulated in

the Miranda decision. Yeager, supra, at 15. However, the

disjunctive use of the word "or" in Miranda demonstrates the

Court’s intent to create two types of restraint in which

questioning by police leading to a confession would be presumed

compelled if unattended by warnings and a valid waiver: "(wjhen

an individual is taken into custody or otherwise deprived of his

freedom of action in any significant way." Id. at 68, quoting

Miranda, 384 U.S. at 478 (emphasis added). This provision was

not inserted into the Miranda opinion cavalierly; there are five

separate references to the two types of custodial restraint in

the majority opinion. Id. at 444, 445, 467, 477, 478. Despite

this conjunctive construction, the Petitioner, in propounding

its test for custody, requires of Significant deprivations of

freedom the characteristics of something which clearly they are

not - settings of custciy. C.£. Yeager, supra, at 68.

Petitioner suggests, in essence, that courts evaluate only

whether arrest or its functional equivalent is present. (See

Pet. for Cert. at 11.) Several problems flow from this proposed

shift in analysis.

First, the phrase "restraint on freedom of movement of the

degree associated with formal arrest" provides no more guidance

than “otherwise deprived of his freedom of action in any

Significant way." This language does not make Miranda’s "bright

line" any brighter. What is the functional equivalent of

arrest? Does it involve a greater degree of compulsion than a

reasonable suspect’s perception that he or she is not free to

go? Yeager, supra, at 15-16. Does it require a particular

length or degree of restraint or intrusiveness of questioning?

Id. at 16.

Second, and even more compelling, to reduce "custody" to

arrest or its functional equivalent is to blur a distinction

designed to establish a class of police-suspect encounters that

wouid fall short of actual custody but still command Miranda

3 This definitional merger unduly limits the

warnings. Id.

circumstances that could qualify as Significant deprivations of

freedom. Id. As a result, coercive police practices that occur

in settings that fall short of a formal arrest become

legitimized. Such an outcome betrays the intended scope of

Miranda and its offspring.”

D. Petitioner’s Suggested Definition of "Custody" for Fifth

Amendment Purposes Inappropriately Relies on the Fourth

Amendment Concept of "Arrest."

Petitioner argues that the Colorado Court, by alluding to

the phrase "not free to leave," equates any "seizure" for Fourth

Amendment purposes with "custody" for Fifth Amendment purposes.

This was not the irtent of the Colorado Court. The lower court

Simply noted, as one of the many factors that supported its

finding of "custody," that Mr. LaFrankie was never informed that

he was free to leave. LaFrankie, App. to Pet. for Cert. at C-6,

C-9. "Whether any limitation of movement or other form of

restraint was placed on the defendant during the interrogation"

is just one of numerous factors that the Colorado Court

considers in making the "custody" assessment." The Court did

13. Cf. Berkemer, 468 U.S. at 436-37 (declining to establish class of

restraint that qualifies as seizure for Fourth Amendment purposes but not as

Significant deprivation for Fifth Amendment purposes. )

14. See supra, n.6 and accompanying text.

15. See supra, p. 30.

not, in this case," refer to "not free to leave" as utilized

for Fourth Amendment purposes, as the standard for determining

"custody" for Fifth Amendment purposes.

Moreover, Petitioner’s contention that this Court should

substitute the Miranda definition of custody -- taken into

custody or otherwise deprived of his freedom of action in any

significant way -- with the language of Beheler -- formal arrest

or restraint on freedom of movement of the degree associated

with formal arrest -- suffers from a pitfall which is the

converse of that attributed to the lower court. The proposed

definition equates "custody" or its functional equivalent for

Miranda purposes, a Fifth Amendment determination, with the term

"arrest" as it is defined for Fourth Amendment purposes. The

logical extension of Petitioner’s argument is that persons

subjected to many Fourth Amendment detentions could never be in

custody for purposes of Miranda. Such an analysis fails to

recognize a subtle, yet significant distinction between Fourth

and Fifth Amendment jurisprudence grounded in the values each

constitutional provision advances. Williamson, supra, at 386.

This distinction is that the determination of "custody" for

Fifth Amendment purposes is based on an analysis of

compulsion,'’ whereas Fourth Amendment seizures are concerned

16. But see People v. Johnson, 671 P.2d 958, 962-62 (Colo. 1983)

17. In Miranda, this Court states that the privilege against

self-incrimination is founded on a complex of values. Miranda, 384 U.S. at

460. Among them are the respect a government must accord to the dignity and

integrity of its citizens, respect for the inviolability of the human

personality, and the requirement that the government seeking to punish an

individual must produce the evidence against him by its own independent

labors, rather than by the cruel, simple expedient of compelling it from his

Own mouth. Id. (citations omitted).

with deprivation of liberty and privacy interests.

As was stated previously, the element of compulsion is the

key to the Miranda decision. Id. at 387. The Fifth Amendment

prohibits the use of any practice or tactic that compels a

person to incriminate himself or herself. Id. at 388 (emphasis

in original). According to Miranda, the prohibited element of

compulsion is present in all cases of in-custody interrogation.

Id. Miranda therefore proceeds from the assumption that a

Significant deprivation of freedom of movement, together with

police-initiated questioning, necessarily generates a form of

prohibited compulsion.’ Id. The Suspect’s state of mind, real

Or attributed, provides the factual predicate for the assumption

that compulsion exists when a suspect is subjected to custodial

questioning. Id. at 404.

The Fourth Amendment, aiternatively, is based on concerns

for deprivation of a Suspect’s freedom of movement, Williamson,

Supra, at 397, the privacy interests of persons detained, id. at

399 nn. 116, and concern for personal safety and personal

dignity. Id. at 403.

The Fifth Amendment concept of custody and the Fourth

Amendment concept of detention further, at least in part,

compatible interests. Both are premised to varying extents on

18. Cases decided both before and after Miranda have held that other

prohibited forms of compulsion, physical or psychological, may occur in

addition to those flowing from the fact of in-custody questioning. The fact

remains, however, that following Miranda, a person in custody necessarily

and always, regardless of circumstances, in considered subjected to

prohibited compulsion when interrowseted, unless first properly warned of his

or her constitutional rights. Williamson, Supra, at 388-89, and authorities

cited therein.

the assumption that significant restraints on freedom of

movement implicate constitutional values beyond those inherent

in the nere loss of that freedom. In the case of the Fifth

Amendment, significant custodial restraints produce a form of

prohibited compulsion to speak when questioned. In the case of

the Fourth Amendment, significant custodial restraints maximize

the government’s evidence gathering potential. Id. at 404.

Although the values that underlie the concepts of custody

and arrest are closely aligned, the analogy is not perfect.

Miranda’s concept of custody is predicated upon the belief that

Significant custodial restraints generate, in the mind of the

Suspect, a form of prohibited compulsion. Miranda makes sense

only if, in deciding whether a Suspect is in custody, an attempt

is made to view the situation as it might appear to a reasonable

person. Id.

On the other hand, in a Fourth Amendment analysis, where

the issue often is whether a Suspect was subjected to a Terry"

type detention or instead was arrested, the state of mind of the

Suspect is not important, given the values that underpin the

distinction between the two forms of seizure. The suspect’s

state of mind is irrelevant to the advancement of legitimate

Fourth Amendment values. The Fourth Amendment guarantees

freedom of movement and the attendant privacy rights. These

guarantees thus operate as a check against unreasonable actions

by law enforcement officials. A lawful Terry stop is not

19. Terry v. Ohio, 392 U.S. 1 (1968).

rendered unreasonable simply because a "reasonable person" would

believe that he or she has been arrested, or because the suspect

is uncertain as to his or her fate during the period of the

temporary detention. Anxiety simply is not a value recognized

by the Fourth Amendment. Similar reasoning applies to the law

of searches. A search of our papers, houses, and effects occurs

when the police actually invade our privacy; the Fourth

Amendment is not violated simply because we believe, perhaps

reasonably so, that our houses, papers and effects are about to

be searched or seized, or both. Id. at 404-405 (emphasis added).

Because the concepts of custody and arrest do not coincide

in all respects, one subtle yet potentially

outcome-determinative difference between the two must be

recognized and implemented. The determination whether a Terry

stop, because of the circumstances, crossed the threshold and

became "custody" for Miranda purposes, but not an "arrest" for

Fourth Amendment purposes, must be made with reference to the

likely perception of a reasonable person. Id. at 405.

In his article, Professor Williamson sets forth two

examples that illustrate when the divergence between Miranda’s

concept of custody and the Fourth Amendment’s concept of arrest

could become outcome-determinative. In Case One, upon

reasonable suspicion a suspect is detained for a brief period in

a manner that otherwise clearly would constitute a detention

less than formal arrest, except that the detaining officer

informs the suspect that he is under arrest. Although the

circumstances might not otherwise dictate such a result, the

fact that the suspect was informed that he was under arrest

means that he must be deemed in custody for Miranda purposes.

The communication of the fact of arrest would have a profound

effect on a reasonable person’s view of the circumstances of

custodial questioning that might follow. Id. at 406.

In Case Two, a suspect is detained under circumstances that

constitute a valid Terry stop. His vehicle is stopped upon

reasonable suspicion that it contains contraband. The stop is

achieved when a uniformed officer, in a police car, with lights

flashing, catches the suspect’s speeding vehicle. The officer

approaches the vehicle with his handgun drawn and orders the

Suspect out of the vehicle. The officer further instructs the

Suspect to assume a "spread eagle" position. Following a Terry

frisk for weapons, the officer demands the Suspect to produce

his driver’s license and vehicle registration. The driver

produces his own valid license and a bill of sale for the

vehicle in the name of another. In response to questions

concerning the ownership of the vehicle, the suspect answers

that it belongs to a friend. The officer advises the suspect

that he will be detained until the arrival of a narcotics

officer. At that point, the Suspect becomes nervous, indicates

that he would like to leave, and requests the return of his

license. The traffic officer tells the suspect that he is not

free to leave. Within fifteen minutes, the narcotics officer

arrives and informs the Suspect that he believes the vehicle

contains contraband. The narcotics officer twice asks the

Suspect for permission to search the car. Both times, he

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declines. The narcotics officer then tests the rear of the

vehicle and, when it does not move, concludes that it is

over loaded. The officer puts his nose against the trunk and

Says that he smells marijuana. When the suspect is asked

directly whether the vehicle contains marijuana, he responds,

"It’s not mine. I was just carrying it for a friend." The

narcotics officer opens the trunk and discovers a large quantity

of marijuana. Id. at 406-407.

The facts of Case Two are, essentially, the facts of United

States v. Sharpe, 470 U.S. 675 (1985), except that in Sharpe no

questioning of the suspect occurred before the marijuana was

discovered. In Sharpe, this Court concluded that the suspect

was validly detained upon reasonable suspicion until such point

as the narcotics officer detected the odor of marijuana. The

issue remains whether the questioning of the suspect was

permissible in the absence of Miranda warnings. Id. at 407.

If the issue of custody is determined with reference to the

likely state of mind of the Suspect, and not with reference to

whether he was the subject of a Terry stop or a formal arrest,

the suspect in Case Two surely would have felt the type of

compelling environment described in Miranda. He was forcibly

detained by two officers. Firearms were displayed, and the

suspect was frisked. He was advised that a narcotics officer

had been called to the scene and that he was not free to leave.

He was detained under these circumstances for fifteen minutes

and, upon the arrival of a narcotics officer, was twice asked to

consent to a search of the vehicle. Finally, he was

specifically accused of driving a car that the police suspected

-- confirmed by the odor -- contained marijuana and asked

directly whether the car in fact contained marijuana. A more

compelling environment outside Miranda’s paradigm station house

interrogation is difficult to imagine. Id.

The foregoing discussion demonstrates the intersection and

potential conflict between the Miranda decision and Fourth

Amendment doctrine. It is analytically expedient to conclude

that an individual’s freedom of movement is restricted in a

"significant way" -- and thus is "in custody" for Miranda

purposes -- when, but only when, the person is "under arrest."

It is likewise convenient to assume that a Suspect whose freedom

of movement has been restricted only to the extent that the

person has been subjected to a Fourth Amendment Terry stop has

not suffered the type of significant restraints on freedom of

movement required by Miranda. However, because the Fourth

Amendment jurisprudence that defines and differentiates the

concepts of stop and arrest is derived from values unrelated to

those underlying the Miranda decision and the Fifth Amendment,

Petitioner’s proposed definition of "custody," which is more

Closely aligned with Fourth Amendment than with Fifth Amendment

concepts, fails to adequately address the types of compulsion

Miranda set out to remedy.

E. The Definity of Custody Propounded by Petitioner Fails to

Recognize that Custody and Interrogation Must be Evaluated in

Tandem in Determining the Necessity for Miranda Warnings.

Implicit in Petitioner’s argument is the notion that a

court must evaluate whether a person is in custody for Miranda

purposes in a vacuum, divorced from any consideration of the

interrogation component. The Miranda court, however, chose to

give definition to the phrase "custodial interrogation," rather

than defining "custody" and "interrogation" as discreet

concepts. To the extent that subsequent opinions focus on the

meaning of either "custody" or "interrogation" taken alone, it

is because there is no question that the other component is

present. Perkins, 110 S.Ct. 2394; Murphy, 465 U.S. 420; Beheler,

463 U.S. 1121; Innis, 446 U.S. 291; Mathiason, 429 U.S. 492;

Beckwith, 425 U.S. 341; Orozco, 394 U.S. 324; Mathis,

391 U.S. 1.

The Court only recently reaffirmed this notion that custody

and interrogation work together to generate inherently

compelling pressures. In Illinois v. Perkins, 110 S. Ct. 2394

(1990), Justice Kennedy stated that "it is the premise of

Miranda that the danger of coercion results from the interaction

of custody and official interrogation." Id. at 2397 (emphasis

added). "Questioning by captors, who appear to control the

Suspect’s fate, may create mutually reinforcing pressures that

the Court has assumed will weaken the Suspect’s will ...." Id.

(emphasis added). In holding that an undercover law enforcement

officer posing as a fellow inmate need not give Miranda warnings

to an incarcerated suspect before asking questions that may

elicit an incriminating response, the Court noted that "(Wjhen

the agent carries neither badge nor gun and wears not ‘police

blue,’ but the same ‘prison gray’ as the Suspect, there is no

‘interplay between police interrogation and police custody.’"

Id., citation omitted (emphasis in Original).

That it is the interaction of official questioning in a

custodial environment that gives rise to the coercive pressures

that Miranda addresses is explained as follows: "It is the

impact on the suspect’s mind of the interplay between police

interrogation and police custody - each condition reinforcing

the pressures and anxieties produced by the other - that, as the

Miranda court correctly discerned, makes ‘custodial police

interrogation’ so devastating. It is the suspect’s realization

that the same persons who have cut him off from the outside

world, and have him in their power and control, want him to

confess, and are determined to get him to do so, that makes the

‘interrogation’ more menacing than it would be without the

custody and the ‘custody’ more intimidating than it would be

without interrogation." Yeager, Supra, at 4n.15 (emphasis in

original).

One author has considered the proposition that both the

"custodial" and "interrogation" elements must be considered

together in determining whether a particular situation gives

rise to the need for Miranda warnings. Yeager, supra. One view

of such a melding of the two elements might mean that a high

level of interrogation must be considered in evaluating the

legal consequences of an otherwise low level of custody, and

that a high level of custody should be taken into account in the

Id. at 49. For example, in a setting where one component is by

itself insufficient to warrant Miranda warnings but the other is

highly compelling, the higher component may compensate for the

"shortcomings" of the component that features a lower degree of

compulsion. Id. Miranda, then, is required whenever both

elements aggregately exert on a Suspect a certain level of

compulsion, even if one element standing alone is below that

threshold. Id.

A second view posited by this author is that the Court’s

allusion to “interplay" may actually have envisioned a

synergistic relationship. Id. "Synergy" describes how two

forces, acting together, create a unified system in which each

element acts in a manner unpredicted by the behavior of its

parts taken separately. Id. at 49-50. Where interplay views each

element as merely being added to the other, synergy views each

element as augmenting the other. Id. at 50. Under either view,

police, when imposing a severe level of custodial restraint on a

Suspect, excite in the suspect a heightened sensitivity to

whatever interrogation techniques are used. Td. Conversely, a

low level of custodial restraint affords police greater leeway

in interrogating a suspect before Miranda warnings become

necessary. Id. at 49-50.

If the concepts of "custody" and "interrogation" are viewed

separately, as Petitioner’s argument assumes, both elements must

in each case reach a certain threshold of compulsion before

Miranda attaches. The difficulty with this approach, however,

is that it ignores the fact that it is the interplay of custody

and interrogation that subjugates a suspect to the will of his

RE RS SRE ee Ee

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examiner. Id. at 48. When Justice Stewart wrote in Rhode Island

v. Innis, 446 U.S. 291 (1980), that "’interrogation’ ... must

reflect a measure of compulsion above and beyond that inherent

in custody itself," id. at 300, he recognized how "custody" and

"interrogation" work together to undermine a suspect’s will to

resist police pressures. Yeager, supra, at 48. It is clear from

the Perkins decision, discussed earlier in this section, that

this Court has recommitted itself to an approach which examines

the interaction of "custody" and "interrogation" in assessing

whether Miranda attached in a particular situation.

III. THE COLORADO COURT APPLIED THE CORRECT LEGAL STANDARD IN

SUPPRESSING RESPONDENT’S STATEMENTS TO THE POLICE, AND ITS

FINDINGS ARE SUPPORTED BY COMPETENT EVIDENCE.

Under any rational interpretation of the United States

Supreme Court’s definition, the facts of this case Support a

finding of "custody." The Colorado Supreme Court found that the

district court applied the correct objective reasonable person

standard and considered the totality of the circumstances,

including the purpose of the interview, the words used by the

officers, the setting and duration of the interview, and the

fact that Mr. LaFrankie was never informed that he was free to

leave the interview room or terminate questioning. The district

court’s findings were found to be Supported by competent

evidence. The same result is reached under the analysis

regardless of any perceived semantic differences in the

definition of "custody."

The trial court cited many factors it found Significant in

reaching its conclusion. As to time, place and purpose of the

encounter, it was done during working hours, in the office of

Mr. LaFrankie’s boss, (App. at p.18, 1.19 through p.20, 1.13.),

and for the purpose of obtaining a confession. (App. at p.l,

1.15 through 1.18.) As to the persons present during the

interrogation, only two police officers and the defendant were

present. (App. at p.5, 1.15.) The words spoken by the officer to

the defendant included repeated statements to Mr. LaFrankie

indicating that he was lying, (App. at p.23, 1.13-17.), that the

officers were trained to discern this, that he would flunk the

polygraph test the officers would be administering, (App. at

p.-31, 1.3-7.), that he would feel better telling the truth and

that the judge would treat him better if he told the truth.

(App. at p.28, 1.6-25) The officers’ tone of voice and general

demeanor were characterized by the lower court as low-key and

without threats, yet accusatorial. The length of the

interrogation was about thirty minutes, (App. at p.10, 4.18.),

and the mood was accusatorial from the start and throughout the

interview. (App. at p.24, 1.1 through p.26, 1.14.)

Relevant to whether any limitation of movement or other

form of restraint was placed on the defendant during the

interrogation is that Mr. lLaFrankie was removed from his

personal work site by his employer, acting at the request of the

police, and taken to the office of his boss where the door was

closed behind him. (App. at p.128, 1.19 through p.20, 1.13.) Two

police officers sat in close proximity to him, (App. at p.21,

1.15 through p.22, 1.20.), and Mr. LaFrankie was never told he

was free to leave or free to refuse to answer questions. (App.

at p.23, 1.20.) The trial court enunciated all of these facts as

circumstances it considered in arriving at the conclusion that

there was custody.

Petitioner argues that "this Court has repeatedly stated

that custody requires significant restraints, which are to be

measured in terms of the police domination associated with

arrest." (Pet. for Cort. at 8). Even if one can discern a

difference between "significant restraints" and "being deprived

of liberty in a significant way," an examination of the factors

discussed above illustrates that Mr. LaFrankie was placed in the

type of incommunicado, police-dominated environment envisioned

by Miranda.

The police domination of this situation could have been

Significantly reduced by any words or actions on their part

which would have communicated to Mr. LaFrankie that he had some

rights or some choices in this scenario. The officers never

told Mr. LaFrankie that he was free to leave. There were no

breaks in the interrogation. Mr. LaFrankie was obviously

experiencing anxiety during this lengthy interview. (App. at

p-10, 1.22 through p.11, 1.1.) But he was not given the

opportunity to talk to anyone, to leave the room, or to have

time alone to think about what was happening. Mr. LaFrankie was

never given even a cursory advisement or hint that he had the

right not to answer these questions. Instead, the tone was

highly accusatorial, confrontational and disbelieving

throughout. When Detective Scott said, "Don’t blow smoke at me,

cause I’m going to find out, okay," (App. at p.26, 1.8) the

message conveyed was that the officers would stay and continue

their interrogation until a confession was obtained. The

message was also that Mr. LaFrankie was going nowhere.

Although a full analysis of numerous factors is critical,

one important feature in this case cannot be understated: the

fact that the interview took place at Mr. LaFrankie’s place of

employment, in the president’s office. While his place of

employment was arguably familiar with Mr. LaFrankie, here it was

also the scene or the crime, and the employer was the victim of

that crime. The Colorado Supreme Court noted the following

about this aspect of the case:

Although the interrogation by Officers Scott and Goeke

did not take place at the station house, there can be

few places more intimidating or potentially coercive to

an individual than one’s place of employment. This is

especially true when the employee is first confronted in

the presence of senior management, escorted to the

president’s office, interviewed while the door is

closed, and never informed that he is free to leave.

See, e.g., United States v. Carter, 884 F.2d 368 (8th

Cir. 1989) (holding that a bank employee questioned by

police in bank president’s office was subjected to

custodial interrogation); United States v. Nash, 563

F.2d 1166 (Sth Cir. 1977) (finding custodial

interrogation where suspect was taken to security office

at his place of employment by his supervisor,

interrogated by an FBI agent for 45 minutes with the

office door closed, and was not informed that he had the

right to leave the office); United States v. Phelps, 443

F.2d 246 (5th Cir. 1971) (interrogation custodial where

police questioned suspect at his place of business); cf.

United States v. Dockery, 736 F.2d 1232 (8th Cir.

1984) (police questioning of defendant at place of

employment not custodial where defendant initiated

interview and was told that she did not have to answer

any questions, that she was not under arrest, and that

she was free to leave at any time).

LaFrankie, App. to Pet. for Cert. at C-8, n.9.

The cases relied on by the prosecution provide a factual

point of departure from this case. The Berkemer decision makes

it clear that, although certain facts can turn a roadside stop

does not rise to the level of "custody" - the roadside stop does

not rise to the level of "custody" - the encounter is hardly

incommunicado and police domination is low. In the Beheler

case, the defendant himself initiated contact with the police by

calling and reporting a crime, the police were invited to his

home, he came voluntarily to the police station, and was told he

was not under arrest. The Murphy case involved a request to the

defendant to visit his probation officer, part of his regular

routine as required by his status of being on probation. All of

these cases turn on a common-sense determination of a reasonable

person’s perceptions of their relative power and freedom

vis-a-vis the police.

In none of these cases was there a surprising interruption

of normal life, initiated by the police, in which the suspect

was thrust into a private interrogation, without any

notification of the right not to be subjected to such

interrogation. The difference is well stated by the trial

court in this case, as follows:

"I mean there needs to be a time when a person is

advised of their rights. You don’t need to do it when

you are investigating and you are asking questions and

you are trying to figure out what is going on. You

don’t need to do it if the person can walk away from you

and the objective test is whether the person can figure

that out."

LaFrankie, App. to Pet. for Cert. at C-10. The type of lengthy,

Closed door questioning that occurred in this case is not the

limited, investigative inquiry contemplated in the Berkemer

decision. On the facts of this case, a reasonable person would

not be expected to figure out that he was free to leave, unlike

the defendants in Beheler and Murphy.

Further, no policy reasons exist to Support the type of

police work in this case. Police are free to ask tough

questions and interrogate in a confrontative fashion as long as

people are aware of the freedom to choose - the choice to leave

if free to leave, or the choice to decline questioning if not

free to leave. This balances the power between private citizens

and the police. Close calls on the issue of "custody" should

encourage officers to give the advisement of rights. To hold

otherwise would invite deception and abuse. Petitioner argues

that some formal event such as the use of physical force or

demonstration of authority must occur before a situation is

deemed "custodial" for Fifth Amendment ,urposes. This ignores

the more subtle forms of coercion which lie within the power of

the police and which were illustrated in this case. According to

Petitioner’s argument, a police officer would be permitted to

lure an unsuspecting person into a private, police-dominated

environment and relentlessly accuse and question him without

limitation, and, so long as no declaration of arrest, drawing of

guns, or physical subduing occurred, the person would not need

to be told they have any rights or freedoms. This does nothing

to further the goal that statements be the product of an

intelligent exercise of the privilege against

self-incrimination.

CONCLUSION

The definition of custody for Purposes of Miranda

propounded by Petitioner was not pressed or passed on in the

Colorado courts. Therefore, is should refuse to

exercise its jurisdiction in this case.

Moreover, the Colorado Supreme Court correctly applied the

appropriate legal standard -- the "reasonable person" test,

announced by this Court in Berkemer -- in making its

determination that Mr. LaFrankie was Subjected to "custodial"

interrogation and therefore should have had the benefit of

Miranda warnings. Because the Colorado Court’s decision conforms

witn principles previously articulated by this Court, and

because its decision is Supported by competent evidence, the

state’s petition for writ of certiorari should be denied.

DAVID F. VELA

COLORADO STATE PUBLIC DEFENDER

’

Linda Perkins Cooke

Deputy State Public Defender

Counsel of Record

CERTIFICATE OF SERVICE

I hereby certify that on 7 , I served the

foregoing document by mailing same through U.S. Mail to opposing

counsel Bill Nagel, Boulder District Attorney’s Office.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.