People v. Elmarr

Justice RICE delivered the Opinion of the Court.

Justice COATS, dissenting.

While the statements suppressed by the majority today are all ostensibly exculpatory in nature, and the majority's rationale for suppressing them is so case-specific as to have little precedential value, I believe the persistent unwillingness of this court to be guided by the United States Supreme Court in this matter of federal constitutional law merits some comment. I also consider it important to once again highlight the extra burden imposed upon the search for truth in this jurisdiction by the needless suppression of a defendant's own calculated attempts to shift blame away from himself. I therefore briefly explain my reasons for dissenting.

I purposely refer to these statements as being "suppressed by the majority" because even the majority acknowledges that the trial court simply applied an incorrect legal standard, mistakenly believing the custody question to turn on the subjective intent of the police. Although the majority rightly notes that both the applicable legal standard and the trial court's application of that standard are largely matters of law, subject to de novo review by this court, the majority extends the notion of "de novo review" to include not only assessing the legality of a lower court's actions but actually ordering suppression for reasons of its own. And although the factors upon which the majority relies are so generic as to apply to almost any interview at a police station, regardless of consent, I nevertheless consider problematic the majority's perfunctory approval of the trial court's fact-finding.

Because the defendant, who was clearly present and could have contradicted the officers on any disputed points, chose not to testify in support of his motion, a number of the trial court's key factual findings were based simply on its presumptions about typical police practice and were absolutely unsupported by any evidence of the actual events in this case. In particular, the trial court (apparently relying on Captain Epp's statement that although he was not present, it would probably have been standard procedure to pat down a suspect before transportingPage 1165him) found that the defendant was subjected to a pat-down search, despite the unequivocal testimony of the only officer present that the defendant was not touched, either before he was driven to the station or upon arrival there. Equally significant, and equally unsupported, was the court's finding that the defendant was "placed" in a small, closed interview room and "told to wait" there. The only relevant evidence indicated that the defendant was "asked" to wait while Epp coordinated with the detectives who had previously spoken with the defendant; that no witness could recall whether the defendant waited in a break room or in someone else's office; and that the videotape showed the defendant entering the interview room along with Epp and Hopper, as the interview began. While the trial court, as trier of fact, could certainly disbelieve particular testimony, it was not empowered to invent evidence from whole cloth.

Most troublesome, however, is the majority's refusal to apply the very legal standard it purports to accept. Almost a quarter-century ago, the United States Supreme Court made clear that a suspect is not placed in custody for purposes of theMirandarequirements merely by being seized and subjected to an investigatory stop.Berkemer v.McCarty,468 U.S. 420,440,104 S.Ct. 3138,82 L.Ed.2d 317(1984). Rather, the prophylacticMirandawarnings are triggered only when a suspect's liberty has been infringed upon to an extent commensurate with a formal arrest.Id.And interrogation at a police station, as long as it is consensual, does not constitute a seizure of any kind, much less a seizure tantamount to an arrest.Oregon v.Mathiason,429 U.S. 492,495,97 S.Ct. 711,50 L.Ed.2d 714(1977);California v. Beheler,463 U.S. 1121,1124-25,103 S.Ct. 3517,77 L.Ed.2d 1275(1983).

This jurisdiction was late in acknowledging the distinction between a seizure of the defendant's person and custody for purposes ofMiranda, see, e.g., People v. Cleburn,782 P.2d 784,786-87(Colo. 1989) (continuing to find custody whenever a reasonable person would feel not free to leave);see generallyWilliam F. Nagel,The DifferencesBetween the U.S. Supreme Court and the Colorado Supreme Court onthe Test for the Determination of Custody for Purposes ofMiranda, 71 Denv. U. L.Rev. 427 (1994), and when finally forced to acknowledge the Supreme Court's holdings inBerkemer, Minnesota v. Murphy,465 U.S. 420,104 S.Ct. 1136,79 L.Ed.2d 409(1984), andBehler, we dismissed them as merely reflecting a "fact-specific approach" to the question of custody.See People v. Trujillo,938 P.2d 117,119n. 2 (Colo. 1997). Despite grudgingly conceding thatMirandais triggered only by a show of force traditionally associated with an arrest, characterized by actions like drawing and pointing weapons, handcuffing, and conducting searches that exceed the limits of a weapons pat-down,see, e.g., People v. Breidenbach,875 P.2d 879,886(Colo. 1994); and eventually even coming to mouth the words of the Supreme Court's standard,see, e.g., People v.Matheny,46 P.3d 453,465-66(Colo. 2002), we seem never (as evidenced by today's holding) to have fully embraced the concept.

Once again the majority fails to distinguish objective indications that a suspect has effectively been arrested from indications of a potential suspect's interest in avoiding that eventuality. In the former case, any statements made without an effective waiver ofMirandawarnings are presumptively the product of police coercion. In the latter, whether motivated more by a desire to assist the investigation or to avoid attracting further suspicion, no such presumption arises. Comparing voluntary witness statements and real evidence is not only a legitimate but in fact a highly desirable and effective technique for solving crimes.

In the absence of actual indicia of an arrest, the majority marshals a laundry list of circumstances or factors, indicative of little more than an interview at the police station. The fact that interview rooms are typically neither large nor public, that two officers are present for an interview, or that they close the door for privacy indicate virtually nothing about the voluntariness of an interviewee's presence. As the Supreme Court has expressly noted, the fact that questioners carry holstered side-arms indicates only that they are police officers, which is understood byPage 1166the interviewee when he consents to a stationhouse interview.United States v. Drayton,536 U.S. 194,205,122 S.Ct. 2105,153 L.Ed.2d 242(2002). And rather than being an indication of arrest, riding in a police car, only after giving consent and without having been patted-down or handcuffed, would suggest to any reasonable person precisely the opposite.

In the absence of an objectively manifested change in circumstances, the fact that a defendant who is present by agreement is not expressly told that he is free to leave has little meaning; and it seems more than a little disingenuous to suggest it as a worthy practice in light of the trial court's adverse reaction to the police reminder that the defendant was free not to speak with them. To the extent that circumstances actually did change at some point as a result of the defendant's responses, he clearly felt free to, and did, terminate the interview, and only his earlier statements are at issue here. In fact, the majority's substantial reliance on events following termination of the interview is a further indication of its failure to grasp, or at least its failure to apply, the objective standard dictated by the Supreme Court. In the absence of any indication that they already intended, and had already communicated their intent, to arrest him, the subsequent actions of the officers could have no bearing whatsoever on the defendant's perception of his status at the time of his statements.

With its mechanical counting of virtually meaningless factors and its comparisons with fact patterns considered by this court long before the Supreme Court's modern custody jurisprudence became clear to us, I can only assume the majority either fails to appreciate the import of that jurisprudence or despite it, continues to harbor reservations about the use of a defendant's own words to establish his guilt. In either case, I believe the majority's holding today conflicts with the Supreme Court's interpretation of the United States Constitution; can serve only to dissuade law enforcement officers from seeking and preserving a record of voluntary witness interviews; and needlessly hinders the search for truth in the criminal process.

I therefore respectfully dissent.

Justice EID, dissenting.

I would reverse the trial court's order suppressing Elmarr's statements and therefore respectfully dissent from the majority's opinion. In my view, the trial court made two significant and fundamental errors in this case.

First, the court found that the incompleteMirandawarnings given by the officers created custody:

[F]rom the moment [the defendant] was advised of hisMirandarights, Defendant was in custody for the purposes ofMiranda. . . .Defendant was advised ofMirandaat the very beginning of the questioning, which would indicate to someone familiar with the criminal process that he was being deprived of his freedom. . . .

In so holding, the court got it exactly backwards.Mirandawarnings do not create custody.See2 Wayne R. LaFave et al.,Criminal Procedure§ 6.6(f), at 752 (3d ed. 2007) ("The argument that the giving of some of theMirandawarnings itself establishes that the situation was custodial has been rightly rejected. . . .");see also United States v. Bautista,145 F.3d 1140,1148(10th Cir. 1998). Instead, custody triggersMiranda.See People v. Stephenson,159 P.3d 617,623(Colo. 2007). As a noted commentator has suggested, it would be "bizarre" to penalize police officers for attempting to giveMirandawarnings in situations that were later determined by a court to be noncustodial. LaFave et al.,supra, § 6.6(f), at 752.

The second fundamental error committed by the trial court is the fact that it relied on the officers' subjective intentions in its analysis of whether Elmarr was in custody, concluding that "Captain Epp likely suspected that Defendant was involved in the murder and intended to attempt to elicit incriminating statements from Defendant." As the majority recognizes, and Elmarr acknowledges, the subjective intentions of the officers in questioning the defendant have no role in determining whether the defendant was in custody. Maj. op. at 1161;seealso People v. Matheny,46 P.3d 453,468(Colo.Page 11672002) (concluding that the trial court erred by relying on the officers' subjective intent).

These two errors tainted the entirety of the trial court's analysis and render its fact-finding, upon which the majority relies, suspect.Seemaj. op. at 1163-1164. In my view, we should correct the trial court's errors and remand the case for further proceedings.See People v. Arias,159 P.3d 134,141(Colo. 2007) (Eid, J., dissenting). For this reason, I respectfully dissent from the majority's opinion.