State of New Hampshire v. Timothy McKenna

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Rockingham
No. 2013-009

THE STATE OF NEW HAMPSHIRE

v.

TIMOTHY MCKENNA

Argued: November 21, 2013
Opinion Issued: September 9, 2014

Joseph A. Foster, attorney general (Elizabeth C. Woodcock, assistant
attorney general, on the brief and orally), for the State.

Andrew F. Cotrupi, of Hampton, by brief and orally, and Samdperil &
Welsh, PLLC, of Exeter (Richard E. Samdperil on the brief), for the defendant.

BASSETT, J. Following a jury trial in Superior Court (McHugh, J.), the
defendant, Timothy McKenna, was convicted of six counts of aggravated
felonious sexual assault. RSA 632-A:2 (2007). Prior to trial, the defendant
moved to suppress his statements to the police on the ground that he was
subject to a custodial interrogation without being informed of his Miranda
rights. See Miranda v. Arizona, 384 U.S. 436 (1966). After an evidentiary
hearing, the Superior Court (Delker, J.) denied the motion. The defendant
appeals the trial court’s denial of his motion to suppress. We reverse and
remand.
 The following facts are drawn from the trial court’s order or from
uncontroverted testimony at the pretrial suppression hearing. In October
2010, the Newmarket Police Department received a report that K.L. had been
sexually abused by the defendant approximately nine to fourteen years earlier.
Lieutenant Kyle True and Sergeant Tara Laurent investigated the allegations
and obtained a warrant for the defendant’s arrest. On October 22, 2010, True
and Laurent, accompanied by New Hampshire State Trooper Rella, drove in two
vehicles — one fully-marked State Police cruiser and one unmarked Ford
Expedition — to a campground and restaurant owned by the defendant in
Errol. The restaurant is located at the end of a one-eighth mile driveway and is
not visible from the road. The driveway ends in a large clearing, surrounded by
woods, which includes a one-acre field where the parking lot and restaurant
are located.

Rella, dressed in his State Police uniform and armed with his service
weapon, sought out the defendant to request that he speak to the officers. The
Newmarket officers waited outside the restaurant. They wore jackets with the
Newmarket police badge and their names embroidered on the front. Although
both Newmarket officers were also armed, their jackets covered their weapons.
The officers had an arrest warrant in their possession, and it was their
intention to arrest the defendant that day, unless the defendant provided the
officers information that established that he could not have committed the
crime — for example, if the defendant had evidence that he had been outside of
the country during the alleged incidents. True testified that he was looking to
elicit a confession from the defendant.

Rella and the defendant met with the two officers. True then asked the
defendant to speak with him and Laurent without either the defendant’s
girlfriend or Rella present. True explained that the subject that they intended
to discuss was private. He suggested that they sit in the unmarked Ford
Expedition because the outside temperature was thirty-five degrees and the
officers were not dressed for the outdoors. Laurent testified that the defendant
was hesitant, and asked whether they could walk and talk instead. The
officers agreed, and the two officers and the defendant began walking. Laurent
testified that Rella and the defendant’s girlfriend walked in the opposite
direction. Rella then returned to his cruiser, which he had parked in a location
from which he was able to watch the defendant, True, and Laurent as they
walked in the clearing.

The officers began by informing the defendant that they were there to
“discuss [him] molesting [K.L.].” The defendant responded by saying that he
“did not remember that.” Laurent then pulled out a picture of K.L. and showed
it to the defendant. The defendant said he remembered her and that she was a
“cute girl.” Laurent told the defendant that he was not under arrest, and that
the officers had come to see him because they wanted to get his side of the
story. Laurent noticed that the defendant began to shake when the officers

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said that they were from Newmarket, and that as they spoke, he looked very
nervous and was shaking even harder, so she asked him whether he was cold.
The defendant responded that he was not cold, as he had just been working.
The interrogation continued.

For approximately one hour and fifteen minutes, the defendant walked to
different parts of the clearing, and the officers followed him. They did not allow
the defendant to leave Rella’s line of sight. At one point, when the defendant
began to walk into the woods, True said: “Hold it Tim, we’re not walking out
there. I don’t want to leave the sight of the trooper.” Although the defendant
did not verbally respond, he stopped walking into the woods and changed
direction. The officers continued to follow the defendant and ask questions.
When the defendant walked to his truck to get more cigarettes, the officers
again followed him. While he sat in the driver’s seat of the truck with his feet
hanging out of the open door, the officers stood outside the vehicle and
continued the questioning.

The two officers and the defendant spoke in a conversational tone. The
defendant never unequivocally denied molesting K.L.; however, he denied
having an “inappropriate relationship” with her, and repeatedly told the officers
that he did not remember molesting K.L. The defendant often responded to the
officers with questions of his own about the investigation. On multiple
occasions during the interrogation, the officers told the defendant that they did
not believe him, urging him to tell the truth. Many of the questions asked by
the officers were premised upon the assumption that the defendant was guilty.
The officers also posited numerous reasons as to why the defendant might have
committed the crime — that he was emotionally attached to K.L., that he was
sexually attracted to her, or that he wanted to hurt her. The defendant
continued to shake as the interrogation continued. He was chain smoking,
and at one point his breathing became shallow.

There is no evidence in the record that before or during the interrogation
the defendant was told that he was free to leave the property or informed of his
Miranda rights. Nor is there evidence that the officers informed him that he
was free to ask them to leave the property, or that he was not required to
answer their questions.

After approximately one hour of questioning, Laurent asked whether the
defendant had had an emotional relationship with K.L. The defendant denied
it. True then said, “You just wanted to come.” The defendant nodded his head
and responded, “Yes, that was probably it.” True then asked if the defendant
had had oral sex with K.L. The defendant responded, “Yes.” He thereafter
made additional incriminating statements. After the defendant made these
admissions, the police accompanied him into the restaurant, where he spoke to
his girlfriend. Shortly thereafter, he was arrested.

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 Prior to trial, the defendant moved to suppress his statements, arguing
that the officers violated his rights under both the New Hampshire and United
States Constitutions by subjecting him to a custodial interrogation without
informing him of his Miranda rights. Following an evidentiary hearing during
which the only witnesses were the two Newmarket officers, the trial court
denied the defendant’s motion. The court concluded that the defendant was
not in custody as he “was familiar with his surroundings, there were only two
officers present, and the defendant was not physically restrained.” The court
stated that the “type of freedom afforded the defendant during the interview
bears none of the hallmarks of a formal arrest.” After a three-day jury trial, the
defendant was convicted of six counts of aggravated felonious sexual assault.
This appeal followed.

On appeal, the defendant argues that his rights under Part I, Article 15
of the New Hampshire Constitution and the Fifth and Sixth Amendments to the
United States Constitution were violated. Specifically, he contends that the
trial court erred in not suppressing his statements because, given that a
reasonable person in his position would have believed himself to be in custody,
the police should have advised him of his rights under Miranda.

We first address the defendant’s claim under the State Constitution and
rely upon federal law only to aid in our analysis. State v. Ball, 124 N.H. 226,
231–33 (1983). Before the defendant’s responses made during a custodial
interrogation may be used as evidence against him, the “State must prove,
beyond a reasonable doubt, that it did not violate [his] constitutional rights
under Miranda.” State v. Gribble, 165 N.H. 1, 10 (2013); cf. State v. Rathbun,
132 N.H. 28, 30 (1989) (ruling State’s burden to demonstrate defendant’s
statement was spontaneous, and thus outside Miranda’s ambit, subject to
preponderance standard). Compare State v. Lantagne, 165 N.H. ___, ___, 83
A.3d 397, 399 (2013) (explaining State bears burden on motion to suppress),
with, e.g., United States v. Davis, 792 F.2d 1299, 1309 (5th Cir. 1986) (stating
that the defendant “had the burden of proving that he was under arrest or in
custody”). Here, it is undisputed that the defendant was interrogated, and that
he did not receive Miranda warnings; accordingly, the sole issue before us is
whether that interrogation was custodial.

“Custody entitling a defendant to Miranda protections requires formal
arrest or restraint on freedom of movement of the degree associated with formal
arrest.” State v. Jennings, 155 N.H. 768, 772 (2007) (quotation omitted). “In
the absence of formal arrest, we must determine whether a suspect’s freedom
of movement was sufficiently curtailed by considering how a reasonable person
in the suspect’s position would have understood the situation.” Id. “The
location of questioning is not, by itself, determinative: a defendant may be in
custody in his own home but not in custody at a police station.” Id. (quotation
omitted). “To determine whether a reasonable person in the defendant’s
position would believe himself in custody, the trial court should consider the

4
totality of the circumstances of the encounter,” id. (quotation omitted),
“including, but not limited to, factors such as the number of officers present,
the degree to which the suspect was physically restrained, the interview’s
duration and character, and the suspect’s familiarity with his surroundings.”
Id. at 773.

For purposes of appellate review, the trial court’s findings of historical
facts relevant to the question of custody, that is, its determinations of “what
happened,” are entitled to the deference we normally accord its factual
findings. State v. Ford, 144 N.H. 57, 62 (1999) (quotation omitted). Because
the ultimate determination of custody requires an application of a legal
standard to historical facts, it is not merely a factual question but a mixed
question of law and fact. Id. In a custody analysis, “the crucial question
entails an evaluation made after determination of the historical facts: if
encountered by a ‘reasonable person,’ would the identified circumstances add
up to custody as defined in Miranda?” Id. at 63 (quoting Thompson v Keohane,
516 U.S. 99, 113 (1995)) (brackets omitted). The trier of fact is not in an
appreciably better position than we are to answer that question. Id. Therefore,
although we will not overturn the factual findings unless they are contrary to
the manifest weight of the evidence, we review the ultimate determination of
custody de novo. Id.

Here, the trial court’s findings of historical facts relating to custody are
not in dispute: the material facts are based upon the uncontroverted
testimony of the two Newmarket officers. Moreover, neither party challenges
the trial court’s underlying factual findings. Accordingly, in our custody
analysis we accept and rely upon the historical facts as set forth in the
suppression order.

We begin by observing that our analysis of whether a defendant was in
custody during police interrogation is rarely based upon a static set of
circumstances. Interrogations are fluid: What may begin as noncustodial
questioning may evolve over time into custodial questioning. See, e.g., State v.
Dedrick, 132 N.H. 218, 225 (1989), abrogated on other grounds by Ford, 144
N.H. at 62-63 and State v. Spencer, 149 N.H. 622, 625 (2003).

A number of factors must be balanced in determining whether, and at
what point, a defendant was in custody during police interrogation. See, e.g.,
Jennings, 155 N.H. at 772, 773. Here, we first examine the degree to which
the officers restrained the defendant’s movement. As we observed in Jennings,
the lack of handcuffs or similar devices is not dispositive, see id. at 773;
indeed, effective restrictions on a defendant’s movement can be a product of
verbal, psychological, or situational restraint. See United States v. Beraun-
Panez, 812 F.2d 578, 580 (9th Cir.) (“Although not physically bound, [the
suspect] was subjected to psychological restraints just as binding.”), modified,
830 F.2d 127 (1987). This is so because the “likely effect on a suspect of being

5
placed under guard during questioning, or told to remain in the sight of
interrogating officials, is to associate these restraints with a formal arrest.”
United States v. Griffin, 922 F.2d 1343, 1350-51 (8th Cir. 1990); see id. at
1354 (finding defendant’s freedom restrained to degree associated with formal
arrest because “he was accompanied by an officer when he retrieved cigarettes
from other rooms in [his home] and was told to remain in view of the agents at
all times”); cf. United States v. Hughes, 640 F.3d 428, 436 (1st Cir. 2011)
(finding no custody when officers escorted defendant outside to smoke a
cigarette, but did not limit his movement, and “defendant was not unduly
intimidated by the interrogating officers,” as shown by his pausing during
cigarette break).

In United States v. Mittel-Carey, the First Circuit Court of Appeals
concluded that the level of control that the officers exercised over the defendant
during the interrogation conducted at the defendant’s home carried the most
weight in its custody analysis — officers ordered the defendant to dress and go
downstairs, told him where to sit, and followed the defendant on the three
occasions that he was permitted to move within his home. United States v.
Mittel-Carey, 493 F.3d 36, 40 (1st Cir. 2007). The court explained that this
factor weighed heavily in favor of custody, despite the defendant’s familiarity
with the surroundings. Id. Here, similarly, the officers accompanied the
defendant wherever he walked around his property. True agreed that, from the
moment that the officers first spoke with the defendant, True knew that he was
not going to allow the defendant to leave his sight. Although True did not
verbally disclose his intent to the defendant, his actions — following the
defendant everywhere he walked, including when he went to his truck to get
more cigarettes — would have conveyed to a reasonable person the reality that
the officers did not intend to allow the defendant to leave their sight. See
Stansbury v. California, 511 U.S. 318, 325 (1994) (“An officer’s knowledge or
beliefs may bear upon the custody issue if they are conveyed, by word or deed,
to the individual being questioned.”).

Moreover, the officers also intervened to prevent the defendant from
freely moving about his property. When he began walking into the woods, True
said, “Hold it Tim, we’re not walking out there. I don’t want to leave the sight
of the trooper.” Throughout the interrogation, the officers and the defendant
stayed within forty to fifty yards of Rella, and the defendant was aware of
Rella’s presence. Although the defendant was generally determining the
direction of the perambulation, as the trial court found, “the officers did not
allow the defendant to enter the woods, or leave Trooper Rella’s line-of-sight.”

True’s testimony that the reason that the defendant was told not to enter
the woods was officer safety does not impact our analysis: “[I]t is often the case
that suspects are escorted or chaperoned during questioning for reasons
unrelated to custody,” including for safety reasons, but “the relevant inquiry is
the effect on the suspect.” Griffin, 922 F.2d at 1350 (quotation omitted).

6
Compare id. at 1354, with United States v. Lifshitz, No. 03 Cr. 572 (LAP), 2004
U.S. Dist. LEXIS 18571, at *21-22 (S.D.N.Y. Sept. 15, 2004) (finding no custody
despite restrictions on defendant because agent specifically explained to
defendant that restrictions were for safety reasons). In Griffin, the court noted
that, although the officers may have escorted the defendant from room to room
for safety reasons, that purpose was not disclosed to the defendant, and,
therefore, did not influence the analysis. Griffin, 922 F.2d at 1354. Similarly,
here, although the officers may have had safety concerns, because those
concerns were never communicated to the defendant, they do not influence our
analysis of custody.

Custody for Miranda purposes can arise because of a formal arrest or the
functional equivalent of arrest; accordingly, the fact that a suspect is not
“under arrest” does not preclude a finding of custody. See, e.g., Jennings, 155
N.H. at 772, 775-76 (defendant was in custody despite not being under arrest).
Nor is a statement to a suspect that he is not under arrest sufficient, by itself,
to establish a lack of custody. Although such a statement generally weighs in
favor of a finding of non-custody, see, e.g., United States v. Salvo, 133 F.3d
943, 951 (6th Cir. 1998), it is not dispositive; rather it is but one factor to be
weighed in the custody analysis.

Given that informing the defendant that he is not under arrest does not
end the custody inquiry, we also consider the fact that there is no evidence that
the defendant was informed that he was free to terminate the interrogation.
See United States v. Colonna, 511 F.3d 431, 435-36 (4th Cir. 2007) (finding
that although the defendant was told that he “was not under arrest,” which
weighed in favor of a conclusion of no custody, the defendant was in custody,
in part because he “was never told that he was free to leave or that he did not
have to respond to questions”); see also United States v. Griffin, 7 F.3d 1512,
1518 (10th Cir. 1993) (“[T]he extent to which the suspect is made aware that he
or she is free to refrain from answering questions or to end the interview at will
often defines the custodial setting. . . . Conversely, the lack of a police
advisement that the suspect is at liberty to decline to answer questions or free
to leave is a significant indication of a custodial detention.” (citations omitted)).
Indeed, our cases reflect that we have consistently regarded as a significant
factor in our custody analysis whether a suspect is informed that he or she is
at liberty to terminate the interrogation. See State v. Locke, 149 N.H. 1, 7
(2002) (“Given the repeated advice that he was free to leave, we conclude that a
reasonable person in the defendant’s position would not believe that he was
restrained to the degree associated with formal arrest.”); State v. Hammond,
144 N.H. 401, 404 (1999) (finding no custody, based, in part, upon fact that
officers informed the defendant several times that he was not under arrest and
that he was free to leave at any time); State v. Johnson, 140 N.H. 573, 578
(1995) (finding no custody, in part, based upon fact that trooper informed
defendant he was free to leave).

7
 Here, the question is whether the restraint on the defendant’s movement
was akin to a formal arrest. Consequently, whether the defendant was told
that he was at liberty to terminate the interrogation provides strong evidence as
to whether a reasonable person in the defendant’s position would feel free to
leave. Thus, notwithstanding the fact that the defendant was told that he was
not under arrest, the lack of evidence that he was told he was free to terminate
the interrogation supports a finding of custody at some point during the
interrogation.

The State relies upon State v. Turmel, 150 N.H. 377 (2003), arguing as
follows: In Turmel we found no custody despite concluding that the
defendant’s movements had been curtailed; in this case, because the
defendant’s movements were never curtailed, a fortiori, he was not in custody.
We disagree.

In Turmel, we distinguished an investigatory traffic stop, during which
the police may temporarily seize a suspect for a period no longer than is
necessary to confirm or dispel an officer’s suspicions of criminal conduct, from
the “restraint on freedom of movement of the degree associated with formal
arrest” that entitles a suspect to Miranda warnings. Turmel, 150 N.H. at 382-
83. We cited Berkemer v. McCarty, 468 U.S. 420 (1984), and observed that
during an investigatory traffic stop, a suspect may be temporarily in custody
and not free to leave, yet Miranda warnings are not required. Id. at 383. In
Berkemer, the Supreme Court explained that temporary custody during an
investigatory traffic stop does not require Miranda warnings because the
detention of a motorist is presumptively temporary and brief and is typically
public. Berkemer, 468 U.S. at 437-38. In Turmel, the defendant was “not
detained for an unduly long period of time” and was “being held within the
confines of a valid investigatory stop.” Turmel, 150 N.H. at 385. We concluded
that, at the time that the defendant made the incriminating statement,
“immediately after he got out of his car,” id., the stop had not “‘metamorphosed’
into the functional equivalent of arrest for Miranda purposes.” Id. at 384-85.

Here, the nature of the defendant’s interrogation was qualitatively
different from questioning during an investigatory traffic stop; accordingly, the
cases relating to traffic stops and allowing temporary custody without Miranda
warnings are of limited application. We observe that from the outset of the
encounter in this case, the circumstances differed significantly from a typical
traffic stop: the officers told the defendant that they had traveled from
Newmarket — approximately three hours away by car — to speak to him about
a “private” matter. Cf. Berkemer, 468 U.S. at 437 (detained motorist’s
expectation of interview limited in both time and potential penalty). For more
than one hour the defendant was questioned about events that had occurred
nine to fourteen years earlier. Unlike in Turmel, where “[t]he officers’ purpose
was to confirm or dispel the suspicion that the defendant possessed
marijuana,” Turmel, 150 N.H. at 384, here, the officers were, as True

8
acknowledged, “looking to extract a confession.” Cf. id. at 383 (explaining that
scope of an investigatory stop “must be carefully tailored to its underlying
justification — to confirm or to dispel the officer’s particular suspicion”). In
short, the circumstances in this case are distinguishable from an investigatory
traffic stop. Accordingly, the restraints that the officers placed on the
defendant’s movement, at least from the point at which the officers did not
allow the defendant to enter the woods or leave Rella’s line of sight, are a
significant factor weighing in favor of an ultimate finding of custody.

We next turn to the character of the interrogation. See Jennings, 155
N.H. at 775 (nature of interrogation is important factor in custody
determination). In our analysis, we consider the presence or absence of both
accusatory questions and accusatory statements made during questioning.
The accusatory nature of questioning is widely recognized as a factor weighing
in favor of a finding of police custody. See, e.g., People v. Henry, 980 N.Y.S.2d
594, 596 (App. Div. 2014) (explaining that a factor in custody determination is
“whether the questioning was accusatory or investigatory” (quotation omitted));
see also White v. United States, 68 A.3d 271, 281 (D.C. 2013) (“Questions that
are inquisitorial in nature are likely to make an encounter with police more
coercive.”); State v. Dailey, 273 S.W.3d 94, 103 (Tenn. 2009) (weighing in favor
of custody that “[t]he character of the questioning was accusatory and
demanding, aimed at convincing the Defendant that the police already had
sufficient evidence to convict him of murdering the victim and that he had to
give them an explanation”). Accusatory questioning often conveys an officer’s
belief in the defendant’s guilt and the officer’s intent to arrest. See United
States v. Wauneka, 770 F.2d 1434, 1439 (9th Cir. 1985) (concluding defendant
was in custody when, inter alia, questioning continued for over an hour and
turned accusatory); Ross v. State, 45 So. 3d 403, 415-16 (Fla. 2010) (finding
questioning “highly confrontational and accusatorial,” and weighing in favor of
custody fact that “[t]he detective repeatedly told Ross that he knew Ross
committed the crime and the only question remaining was why”).

Consistent with this widely accepted approach, we have repeatedly
recognized the importance of the absence or presence of accusatory
questioning in our analysis of custody, contrasting accusatory questioning,
which weighs in favor of custody, with questioning of a purely general nature,
which supports a determination of no custody. See State v. Steimel, 155 N.H.
141, 146 (2007) (observing that officer’s confronting defendant with suspicions
constituted a “relevant factor,” but concluding no custody because
confrontation “occurred near the end of an otherwise general and casual
conversation”); cf. State v. Graca, 142 N.H. 670, 671, 675 (1998) (concluding
no custody, in part, when questioning was of a “purely general nature,”
concerning defendant’s identity and reason for being in park); State v. Green,
133 N.H. 249, 258 (1990) (finding no custody, in part because police did not
accuse defendant of involvement in crimes for which he was later charged);
State v. Tucker, 131 N.H. 526, 529 (1989) (finding no custody, in part, when

9
officer questioned defendant in connection with general investigation of
airplane accident and defendant was not focus of investigation). In State v.
Dedrick, we upheld the trial court’s determination of custody after it “discerned
a sea change in the tenor and character of Dedrick’s interview,” which “would
have signaled [to] a reasonable man in the same circumstances that the
freedom officers had accorded him earlier was no longer available and that, as
often as he made denials, they would renew their accusations until, in the end,
he either confessed or asked, as Dedrick in fact did, to speak with an attorney.”
Dedrick, 132 N.H. at 225. That “sea change” stemmed from the officers’
questioning: Where the defendant had previously been “answering general
questions about his background and activities,” the shift occurred when he was
“accused of untruths and confronted with damning information,” and, “despite
his vehement denials,” the officers insisted that he had committed the crime.
Id.

Here, as in the latter stages of the Dedrick interrogation, the officers
employed accusatory questioning. True acknowledged that the purpose of the
questioning was to “extract a confession.” The officers agreed at the
suppression hearing that their questions were premised upon the assumption
that the defendant had committed the crime. On numerous occasions
throughout the interrogation the officers asked the defendant why he had
sexually abused K.L. and posited reasons for his actions. They asked the
defendant if he had a sexual relationship with or molested another child at
daycare. Moreover, we find significant that both officers agreed that, during an
encounter lasting more than one hour, “the subject matter stayed the same,”
and “there really wasn’t any other conversation, other than regarding [K.L.].”
Thus, the accusatory nature of the questioning of the defendant is a significant
factor weighing in favor of a finding of custody.

Likewise, accusatory statements made by the officers and directed at the
defendant also weigh in favor of custody. See Jennings, 155 N.H. at 774
(weighing in favor of custody that officers repeatedly confronted defendant with
their belief that victim was telling truth); Dedrick, 132 N.H. at 225 (weighing in
favor of custody that defendant was accused of untruths and confronted with
damning information). Although “Miranda warnings are not required simply
because the person being questioned is one whom the police suspect,” Tucker,
131 N.H. at 529 (quotations omitted), the officers’ subjective beliefs as to the
defendant’s guilt “may become relevant when they are communicated to the
defendant and affect an objective determination of whether the defendant
would feel free to leave.” State v. Muntean, 12 A.3d 518, 528 (Vt. 2010). Thus,
confronting the defendant with evidence of guilt weighs in favor of custody: “A
reasonable person would not feel at liberty to terminate a police interview after
being confronted with such evidence, as a reasonable person understands that
the police ordinarily will not set free a suspect when there is evidence strongly
suggesting that the person is guilty of a serious crime.” Id. (quotation omitted);
see also Ross, 45 So. 3d at 416-17 (factor that weighed in favor of finding of

10
custody was that defendant was confronted with strong evidence of his guilt);
Aguilera-Tovar v. State, 57 A.3d 1084, 1092 (Md. Ct. Spec. App. 2012) (“When
a suspect is made aware of the fact . . . that he is a suspect in a case and is not
merely being questioned as a witness, that . . . weighs in favor of a finding of
custody.”); Com. v. Groome, 755 N.E.2d 1224, 1234 (Mass. 2001) (a factor in
custody analysis is whether officers have conveyed to person being questioned
any belief or opinion that that person is a suspect).

In Jennings, the police officers repeatedly confronted the defendant with
his daughter’s allegations of sexual assault, telling him that they were certain
that the allegations were true. Jennings, 155 N.H. at 774. In concluding that
the defendant was in custody, we explained that the control that the police
exercised, when combined with the “clear indication that the police believed the
defendant to be guilty of sexual assault[,] would have signaled to a reasonable
person that his freedom of movement was curtailed to the degree associated
with formal arrest.” Id.

Here, as in Jennings, the defendant was confronted almost immediately
— and throughout the interrogation — with the officers’ express statements
that they believed him to be guilty of sexual assault. See Dedrick, 132 N.H. at
225 (finding custody when, despite defendant’s vehement denials, officers
stated time and again that it was defendant who committed the crime). For
example, True testified that he began the interrogation by stating, “You know
we’re here to discuss you molesting [K.L.],” after which Laurent showed the
defendant a picture of K.L. and said, “Yeah, this is the girl we’re here to discuss
you molesting.” The officers acknowledged that they had told the defendant
“repeatedly, that [they] believed, [that he] had committed aggravated, felonious
sexual assault against a child,” that they “knew everything . . . about his
relationship with [K.L.],” that they knew that he did it and that they believed
that it happened. Both officers told the defendant that they did not believe
him, and Laurent testified that they admonished the defendant an estimated
fifteen times to “tell the truth.” The officers’ repeated statements to the
defendant that they believed that he was guilty weigh in favor of custody.

Our conclusion that the accusatory questioning and statements weigh in
favor of custody is not inconsistent with the trial court’s findings that “the
character of the encounter was not fueled by hostility or animus,” and that the
officers were polite and did not raise their voices. See, e.g., Dailey, 273 S.W.3d
at 103 (concluding defendant was in custody and that questioning was
accusatory although the officers’ “tone of voice and general demeanor were
conversational”). Neither the absence of hostility on the part of the officers, nor
the polite tone of the interrogation, neutralizes the content or import of the
accusatory questions and statements, nor diminishes the weight which we
accord to them. In sum, we find that the accusatory questioning and
accusatory statements employed by the interrogating police officers each

11
independently weigh in favor of a finding of custody, and further, that
concurrently they strongly support such a finding.

Also relevant to our assessment of the character of the interrogation is
the fact that the police initiated the contact with the defendant. When
“confrontation between the suspect and the criminal justice system is
instigated at the direction of law enforcement authorities, rather than the
suspect, custody is more likely to exist.” Griffin, 922 F.2d at 1351; see State v.
Hieu Tran, 71 A.3d 1201, 1207 (Vt. 2012); cf. Hammond, 144 N.H. at 404
(finding relevant to no custody determination that defendant drove himself to
police station and at end of questioning was allowed to go home); State v.
Carroll, 138 N.H. 687, 696-97 (1994) (explaining relevant to no custody finding
that defendant requested interview, drove himself to the interview, and on prior
day had requested and received permission to leave). Here, not only did the
police initiate the contact, but the defendant was aware that the officers
traveled from Newmarket to confront him, and they were accompanied by a
State Trooper. We find that this factor also weighs in favor of a finding of
custody.

We do not mean to suggest that all of the circumstances surrounding the
interrogation decisively weigh in favor of a finding of custody; in fact, this is a
close case. Some factors, standing alone, weigh against a finding of custody, or
are at most neutral considerations. For example, as we discussed earlier, the
fact that the defendant was told that he was not under arrest supports a
finding of no custody. In regard to the number of officers involved, we agree
with the State that, in isolation, the involvement of only two officers in the
interrogation would weigh against custody. However, Rella’s presence in his
marked cruiser during the interrogation contributed to a police-controlled
atmosphere, and largely neutralizes this factor.

We recognize that a defendant’s familiarity with his surroundings, taken
in isolation, often weighs against a finding of custody. See Hughes, 640 F.3d at
435-36. However, as we observed in Jennings, “[t]he location of questioning is
not, by itself, determinative: a defendant may be in custody in his own home
but not in custody at a police station.” Jennings, 155 N.H. at 772 (quotation
omitted). We note that other courts have found an interrogation custodial
notwithstanding the fact that the defendant was questioned in familiar
surroundings. See, e.g., Mittel-Carey, 493 F.3d at 40 (“While an interrogation
in a defendant’s residence, without more, certainly weighs against a finding of
custody, . . . the level of physical control the agents exercised over [the
defendant] in this case weighs heavily in the opposite direction, despite the fact
that the control was exercised inside defendant’s home.” (citation omitted));
Sprosty v. Buchler, 79 F.3d 635, 641 (7th Cir. 1996) (“More important than the
familiarity of the surroundings where [the defendant] was being held is the
degree to which the police dominated the scene.”). On balance, here this factor
weighs slightly against a finding of custody.

12
 Finally, we conclude that the length of the interrogation in this case,
approximately one hour and fifteen minutes, weighs neither in favor of, nor
against, a finding of custody. See, e.g., Mittel-Carey, 493 F.3d at 40 (length of
interrogation of ninety minutes to two hours supported finding of custody);
Jennings, 155 N.H. at 774 (“nearly two hours” of questioning supported
conclusion of custody); State v. Goupil, 154 N.H. 208, 226 (2006) (finding no
custody when interview lasted less than fifteen minutes); Locke, 149 N.H. at 6
(three and a half hours not excessive and no custody); State v. Dorval, 144 N.H.
455, 456-57 (1999) (interview of three hours “relatively short” and no custody);
Johnson, 140 N.H. at 578 (finding no custody, in part, when questioning lasted
approximately ten minutes).

The determination as to whether the defendant is in custody for
purposes of Miranda requires us to analyze the totality of the circumstances,
and not to rely on any single factor in isolation. See Jennings, 155 N.H. at
772. “Custody should not be a mystical concept to any law enforcement
agency. We see no reason why doubts as to the presence or absence of custody
should not be resolved in favor of providing criminal suspects with the simple
expedient of Miranda warnings.” Griffin, 922 F.2d at 1356. “Effective law
enforcement is not frustrated when police inform suspects of their rights.” Id.
“Such practices protect the integrity of the criminal justice system by assuring
that convictions obtained by means of confessions do not violate fundamental
constitutional principles.” Id.

After considering the “totality of the circumstances of the encounter,”
Jennings, 155 N.H. at 772 (quotation omitted), and balancing all of the relevant
factors, we hold that the defendant was in custody for the purposes of Miranda
no later than when the officers prevented him from entering the woods. We
conclude that, at least by that point, a reasonable person in the defendant’s
position would have understood he was effectively under arrest. The officers
had accompanied the defendant wherever he went on his property, and, when
the defendant tried to enter the woods, True instructed him not to do so.
Further, the officers did not allow the defendant to leave the sight of the State
Trooper who was monitoring the interrogation from a marked cruiser.
Although the defendant was informed that he was not under arrest, there is no
evidence that the officers ever informed the defendant that he was free to
terminate the interrogation. In addition, we accord substantial weight to the
fact that the officers’ questions were accusatory and focused on the defendant’s
alleged criminal activity. For more than an hour, through their use of
accusatory statements and questions, the officers repeatedly conveyed their
belief in the defendant’s guilt. Accordingly, pursuant to Part I, Article 15 of the
New Hampshire Constitution, any incriminating statements made by the
defendant after True’s instruction not to enter the woods must be suppressed.

At the same time, based on the record before us, we conclude that the
defendant was not yet in custody for the purposes of Miranda at the beginning

13
of the encounter. Accordingly, the defendant’s initial responses to the officers
that he “did not remember that,” and that K.L. was a “cute girl,” need not be
suppressed.

As to the interrogation that occurred between the defendant’s initial
responses and True’s instruction to him not to enter the woods, the record is
unclear regarding the sequence of events — specifically, the interrelationship
between the actions and questioning of the police and the statements made by
the defendant. Thus, we are unable to determine as a matter of law that the
interrogation was noncustodial prior to True’s instructions. Accordingly, we
remand for the trial court to make specific findings and rulings regarding the
admissibility of any incriminating statements made by the defendant after his
initial responses, and before True’s instruction not to enter the woods.

“Because the defendant prevails under the State Constitution, we need
not address his claim under the Federal Constitution.” Jennings, 155 N.H. at
776.
Reversed and remanded.

HICKS and CONBOY, JJ., concurred; LYNN, J., with whom DALIANIS,
C.J., joined, dissented.

LYNN, J., dissenting. Contrary to the majority, I do not regard this as “a
close case.” In my view, based on the facts and the law, the defendant clearly
was not in custody at any time until the officers placed him under arrest at the
end of the interview. As the discussion below demonstrates, the majority does
not cite, nor has my research revealed, any case in which an appellate court
has overturned a trial court finding that an interrogation was not custodial in
factual circumstances that are in any way reasonably analogous to those
presented here.

Under well-settled law, although we review de novo a trial court’s
ultimate legal conclusion as to whether a defendant was in custody when
interrogated, we are required to accept the court’s underlying factual findings
unless they are unsupported by the record or clearly erroneous. See, e.g.,
State v. Jennings, 155 N.H. 768, 772-73 (2007); State v. Ford, 144 N.H. 57, 62-
63 (1999). This deferential standard with respect to underlying fact-finding
applies not only to the trial court’s resolution of credibility issues, but also to
inferences drawn from the circumstantial evidence. As the First Circuit
explained in United States v. Hughes, 640 F.3d 428, 434 (1st Cir. 2011), “when
the [trial court] chooses to draw a reasonable (though not inevitable) inference
from a particular combination of facts, that inference is entitled to respect.” Id.
(quotation omitted). Here the majority departs from this rule by subtly
recasting the underlying facts in a manner that deviates from the trial court’s
findings or from inferences that are supported by the record and that we must
assume the trial court drew because they support the court’s decision. See In

14
the Matter of Aube & Aube, 158 N.H. 459, 466 (2009) (“We must assume that
the trial court made subsidiary findings necessary to support its general
ruling.” (quotation omitted)). In short, in the guise of conducting de novo
review of the trial court’s ultimate legal conclusion that the defendant was not
in custody, the majority effectively substitutes its judgment for that of the trial
court as to the underlying facts. Because, under the deferential standard of
review applicable to the trial court’s actual fact-finding, the majority’s legal
conclusion that the defendant was in custody when interrogated deviates from
our prior precedents and is unsupported by any authority, I respectfully
dissent.

I

Based upon the evidence presented at the pretrial suppression hearing,
the trial court found the pertinent facts to be as follows. In October 2010, K.L.
reported to the Newmarket Police Department that she had been sexually
abused by the defendant approximately nine to fourteen years earlier. At the
time of the alleged abuse, the defendant was dating the woman who ran the
Newmarket daycare center where the abuse occurred. At the time the abuse
was reported, the defendant resided in Errol at the Bullmoose campground and
restaurant, which he also owned and operated.

Lieutenant Kyle True and Sergeant Tara Laurent began investigating the
allegations against the defendant and, based upon their investigation, obtained
a warrant for his arrest. On October 22, 2010, True and Laurent met New
Hampshire State Trooper Rella in Colebrook and followed him to the Bullmoose
to interview the defendant. Rella drove his fully-marked State Police cruiser,
while True and Laurent drove in an unmarked police vehicle. Upon arriving at
the Bullmoose, the officers drove up a long driveway that opened into a large,
one-acre clearing where the parking lot and restaurant were located. The
clearing was surrounded by trees. The officers parked their cars in the lot, and
Rella, dressed in his full State Police uniform, which included his visible
sidearm, entered the restaurant and spoke to the defendant’s girlfriend, who
directed Rella to another building where the defendant was working. The
defendant and Rella walked to the parking lot, where True and Laurent were
waiting. True and Laurent each wore a dark jacket with the Newmarket Police
badge and their names embroidered on the front, but were otherwise not in
uniform and bore no other visible police insignias. Both officers were armed,
but their weapons were covered by their jackets and were not visible. Rella
introduced the defendant to the two Newmarket officers and they all shook
hands.

True asked the defendant if he and Laurent could speak to him without
his girlfriend (who had approached the officers) or Rella present, as they
wanted to discuss a private matter. True suggested that he, Laurent, and the
defendant sit in the Newmarket officers’ vehicle, as it was around thirty-five

15
degrees outside and he and Laurent were not dressed for the outdoors. The
defendant, who was dressed for the weather, instead asked whether the three
could walk and talk. The officers agreed, and Rella returned to his cruiser,
where he remained for the duration of the interview.

The officers followed the defendant’s lead as he began walking around
the large open area surrounding the restaurant. As the three began walking,
the officers said they wanted to talk to the defendant about his having molested
K.L. Laurent told the defendant that he was not under arrest — and repeated
this statement two or three times throughout the interview — and that the
officers just wanted to get his side of the story. When he was first told why the
officers wanted to speak with him, the defendant responded by saying he “did
not remember that.” When shown a picture of K.L., however, the defendant
smiled, stating that he remembered her and that she was a cute girl. At this
point Laurent noticed that the defendant looked very nervous and was shaking,
and she asked him whether he was cold. The defendant responded that he was
not cold, as he had just been working, and the interview continued.

The officers next asked the defendant multiple background questions:
they confirmed that he lived in Newmarket at the time the alleged molestation
occurred, and that he dated the woman who ran the daycare that K.L. attended
during that time period. When the officers asked the defendant if he had
molested other children in Newmarket, the defendant was adamant that he had
not. At this point in the questioning the defendant’s breathing became
shallow, he continued to shake, and he was chain smoking.

During the conversation, the defendant, accompanied by the officers,
walked to different parts of the open field. At one point the defendant began to
walk into the woods. In response, True said, “Hold it Tim, we’re not walking
out there. I don’t want to leave the sight of the trooper.” At the suppression
hearing, True testified that he did not want to go into the woods because
neither he nor Laurent was dressed to walk in the woods, the officers did not
know the area, and they did not have any radio communications. The
defendant made no verbal response to True’s statement, but simply began
walking in another direction. At another point during the conversation, the
defendant ran out of cigarettes. He walked over to his pickup truck, with the
officers following, and retrieved more cigarettes. Afterward, the defendant sat
in the driver’s seat of his truck, with his feet hanging out, and the officers stood
outside the vehicle, where the three continued the conversation.

The entire conversation with the defendant lasted approximately one
hour and fifteen minutes. During this time, the officers and the defendant
walked over different parts of the field, covering most of the open ground.
Throughout the interview, the defendant and the officers spoke back and forth
in a conversational tone, and the defendant often took long pauses to think
between answers. Although the defendant never unequivocally denied

16
molesting K.L., at times he claimed not to remember certain events. The
defendant often responded to the officers’ questions with questions of his own
about the investigation. He asked the officers about the people to whom the
police had talked, in what room the abuse was alleged to have occurred, and
what evidence the police had. He said that the officers probably had DNA.
Sometimes, the officers answered the defendant’s questions, and sometimes
they declined, telling him that they could not disclose the details of the
investigation.

Although the officers told the defendant several times that they did not
believe his claims that he could not remember certain things and thought he
was not telling the truth, at no point did the officers raise their voices, nor were
they confrontational or hostile toward the defendant.

At one point, Laurent asked the defendant if he had an emotional
relationship with K.L. The defendant denied this. True then said, “You just
wanted to come.” The defendant nodded his head and responded, “Yes, that
was probably it.” True then asked if the defendant had oral sex with K.L., to
which the defendant responded, “Yes.” The defendant also admitted that he
had digitally penetrated K.L. and had vaginal intercourse with her. At this
point, the officers told the defendant that it was good to be honest and that
they just wanted to hear his version of events. The defendant did not offer any
more details, but said that he regretted his relationship with K.L. After the
defendant made these admissions, the officers allowed him to go into the
restaurant to speak with his girlfriend and get a soda. Although the officers
accompanied the defendant into the restaurant, they did not place him under
arrest until after they had left the restaurant. The arrest took place out of
sight of the restaurant so as not to embarrass the defendant in front of the
patrons inside the restaurant.

II

“Custody entitling a person to Miranda protections during interrogation
requires formal arrest or restraint on freedom of movement to the degree
associated with formal arrest.” State v. Steimel, 155 N.H. 141, 144 (2007).
The defendant does not contend that he had been formally arrested at the time
he was questioned by the officers. That being the case, the trial court was
required to determine “whether [the defendant’s] freedom of movement was
sufficiently curtailed [to constitute the equivalent of arrest] by considering how
a reasonable person in [his] position would have understood the situation.” Id.
Among the factors which are relevant to this determination are the suspect’s
familiarity with the surroundings where the interrogation occurs, the number
of officers present, the degree to which the suspect was physically restrained,
and the interview’s duration and character. Id.

17
 The trial court determined that the defendant was not in custody and
explained its reasoning as follows:

The defendant was familiar with his surroundings, there were only two
officers present, and the defendant was not physically restrained. While
the encounter lasted between an hour and an hour and a half, it is clear
to the Court that the character of the encounter was not fueled by
hostility or animus. Rather, the officers allowed the defendant to wander
the field, take time to ponder in silence, and to get cigarettes and sit in
his truck. . . . [T]his type of freedom afforded the defendant during the
interview bears none of the hallmarks of a formal arrest.

In my view, the trial court’s decision was unquestionably correct. In
reaching a contrary conclusion, the majority relies upon four factors: (1) the
alleged “restraints” placed upon the defendant during the questioning; (2) the
fact that the interview was initiated by the police, rather than by the defendant;
(3) the fact that, although the defendant was told several times that he was not
under arrest, he was not also advised that he was free to terminate the
interrogation; and (4) the accusatory nature of the questioning. With respect to
the first factor, the majority’s determination that the defendant was restrained
during questioning is the most obvious example of its substitution of its
version of the facts for the contrary factual findings of the trial court. As to the
other factors, although there is no doubt that each of them can, in some
circumstances, weigh in favor of a finding of custody, in this case these factors
are far outweighed by other factors demonstrating that the defendant was not
in custody when he was questioned.

A

The majority asserts that “the officers . . . intervened to prevent the
defendant from freely moving about his property”; that True agreed that, from
the moment he encountered the defendant, True knew that he was not going to
allow the defendant to leave his sight; and that although True never conveyed
his intent to the defendant, “his actions — following the defendant everywhere
he walked, including when he went to his truck to get more cigarettes — would
have conveyed to a reasonable person the reality that the officers did not intend
to allow the defendant to leave their sight.” But this is not a fair description of
the nature of the officers’ interaction with the defendant. First, when asked if
the officers were not going to let the defendant leave their sight, True answered,
“I knew that, yes.” (Emphasis added.) The clear import of this answer is that
this was what the officers intended. However, as the trial court found, there is
no evidence that they ever communicated this intent to the defendant — the
only fact that matters for custody purposes. See Stansbury v. California, 511
U.S. 318, 323-24 (1994). Furthermore, although the majority emphasizes the
point more than once, it also is irrelevant that the officers intended to obtain a

18
confession from the defendant, because this fact too was never communicated
to him.

More fundamentally, the majority’s description completely ignores the
trial court’s finding — again, amply supported by the record — that the
defendant “willingly and voluntarily spoke to” the officers; as well as the crucial
facts that it was the defendant who proposed that he and the officers talk while
walking around his property and that he determined where on the property
they would go. Given these facts, rather than the “following the defendant
everywhere” characterization used by the majority, a more accurate description
of what actually occurred is that the defendant led the officers around his
property. The same “spin” can be found in the majority’s description of the
defendant going to his truck to get cigarettes. Although the officers did
accompany him to his truck, there is nothing in the record to suggest that in
retrieving his cigarettes the defendant was intent upon trying to separate
himself from the officers or take a break from the interview.1 Again, from all
that appears in the record, the defendant led the officers to his truck while
continuing his conversation with them, and indeed, that is what the trial court
found.2 Given the defendant’s suggestion, and the officers’ agreement, that the
interview be conducted while the trio walked around the defendant’s property,
it is hard to imagine how else their discussion would have occurred other than
by the officers accompanying the defendant.

Here, the interview was conducted in surroundings familiar to the
defendant: his own home and business. “[S]uch a location generally presents
a less intimidating atmosphere than, say, a police station.” Hughes, 640 F.3d
at 436; see also United States v. Knowles, 2 F. Supp. 2d 1135, 1144 (E.D. Wis.
1998) (stating that a Customs Office “does not contain the trappings commonly
associated with a law enforcement agency, such as uniformed officers milling
about or suspects contained in holding cells,” supporting the contention that a
reasonable person would have felt free to leave); cf. Yarborough v. Alvarado,
541 U.S. 652, 665 (2004) (identifying questioning at a police station as a factor
that weighs towards finding custody). Further, the defendant was never

1 The situation might be different if, for example, there was evidence that in seeking to retrieve his
cigarettes, the defendant said to the officers something like, “I’m going to get a cigarette, I’ll be
back in a second.” If, despite a statement like this, the officers nonetheless accompanied the
defendant while he gathered his cigarettes, such actions arguably would suggest to a reasonable
person that he was not free to disentangle himself from the police, even for a moment. See United
States v. Cavazos, 668 F.3d 190, 194 (5th Cir. 2012) (noting that the defendant was monitored
when he used the telephone and restroom); Jennings, 155 N.H. at 770, 773 (noting that when
police told the defendant to “knock on the interview room’s door if he needed anything[,] . . . . [t]he
implication . . . was that [he] could not leave the room, much less the station”). But see Hughes,
640 F.3d at 436 (finding no custody where agents accompanied the defendant outside when he
went for a cigarette during a break in questioning).
2 There is no evidence, for example, that the officers tried to search the defendant’s vehicle for

weapons prior to his entering it to get cigarettes. Cf. Jennings, 155 N.H. at 773 (officers
conducted pat-down search of defendant before transporting him to police station).

19
enclosed in a small area inside or outside of a building — the interview took
place in a large open field, approximately an acre in size. See Hughes, 640
F.3d at 436 (finding no custody, in part, where nothing in the record showed
that the officers either “exploited . . . [the] cozy confines [of the defendant’s
home] or invaded the defendant’s personal space”); cf. State v. Dedrick, 132
N.H. 218, 221, 225 (1989) (finding custody, in part, based upon the nature of
the interview room, which measured eight feet by eight feet, was windowless,
and was lit by a single lamp). That the defendant was very familiar with his
surroundings supports the trial court’s finding that the interrogation was non-
custodial.

Although three officers went to the Bullmoose on October 22, only two
actually conducted the interview, while the third remained apart in his vehicle.
See Hughes, 640 F.3d at 436 (stating that the presence of four officers was
“impressive but not overwhelming,” particularly where only two officers
questioned the defendant while the others remained apart); see also State v.
Turmel, 150 N.H. 377, 379, 385 (2003) (finding no custody where, despite the
presence of three police cruisers and an unmarked police truck, only two
officers interviewed the defendant); State v. Locke, 149 N.H. 1, 6 (2002) (finding
no custody where the defendant was questioned by two officers). Because the
number of officers who questioned the defendant was not so numerous as to be
inherently intimidating, this factor also supports the trial court’s finding of no
custody.

At no point during the interview did the officers physically restrain the
defendant or otherwise engage in a show of force. The interviewing officers —
True and Laurent — were dressed in plain clothes, not police uniforms.
Although they were armed, their weapons were covered by their jackets and not
visible to the defendant, and at no point did they display or brandish their
weapons. See Hughes, 640 F.3d at 436 (finding no custody when, among other
factors, the officers did not brandish their weapons, even though they were
visible to the defendant); State v. Hammond, 144 N.H. 401, 404 (1999) (finding
no custody when, among other factors, the two officers questioning the
defendant were not wearing their uniforms and their weapons were not visible
to the defendant); Turmel, 150 N.H. at 385 (finding no custody where officers
did not display their weapons to the defendant).3

3 The majority asserts that Turmel and other cases involving traffic stops are “of limited
application” to the analysis of this case. To the contrary, the significance of Turmel and its
progeny is that these cases demonstrate that, even when a person is unquestionably not free to
leave (because he has been “seized” during a traffic stop), such level of restriction of freedom is
not, without more, enough to require the administration of Miranda warnings before
questioning. The seminal question posed by Turmel for the custody question at issue here is
this: How likely is it that a motorist, “seized” during a traffic stop, would feel free to roam
around his vehicle (or the area where the stop occurs) while being questioned? The answer is
obvious; yet legions of cases hold that the mere seizure resulting from a traffic stop does not
require administration of Miranda warnings before questioning. Given that the defendant in

20
 The majority seizes upon one isolated incident — True’s response to the
defendant’s mid-interview attempt to walk into the woods — as establishing the
point, at the latest, by which the defendant was in custody. But, unlike the
“sea change in the tenor and character of [the] interview” that the trial court in
Dedrick found occurred after the officers reentered the interrogation room, see
Dedrick, 132 N.H. at 225, here there is no evidence that this incident had any
effect whatsoever on the tenor or character of the interactions between the
officers and the defendant. Although this incident was an occasion when the
officers apparently directed the defendant where not to go,4 such a direction is
wholly inadequate to demonstrate custody when considered in light of the
totality of circumstances. The First Circuit’s decision in Hughes is instructive.
There, during an interrogation of the defendant at his home, two troopers
accompanied him as he went outside to smoke a cigarette during a break in the
questioning. Hughes, 640 F.3d at 436. The court found that “[w]hile escorting
a suspect throughout his home may have some bearing on the custody inquiry,
there is no evidence that the troopers followed the defendant so closely as to
intrude upon any intimate moment or private activity.” Id. (citation omitted).
Thus, “their foray into the yard, viewed objectively, did not approach the level
of physical restraint associated with formal arrest.” Id.

The same is true here. When the defendant started to walk into the
woods, True said, “Hold it Tim, we’re not walking out there. I don’t want to
leave the sight of the trooper.” Neither True nor Laurent made physical contact
with the defendant at this point, nor is there evidence that they blocked his
path into the woods or otherwise physically redirected his movements in any
way. Cf. United States v. Mahmood, 415 F. Supp. 2d 13, 16 (D. Mass. 2006)
(when, during interview at defendant’s home, telephone rang, agents did not
suggest a break or give any indication it was permissible for defendant to
answer, and when defendant turned to approach phone, agent placed herself in
front of it); Jennings, 155 N.H. at 770 (after requesting defendant to
“voluntarily” come to police station, officers rejected defendant’s request to
travel in his own truck, took keys to the truck, and conducted pat-down search
of defendant before he entered police cruiser). In the language of Hughes, the
officers did not “intrude upon any intimate moment or private activity,” as the
defendant at the time was merely endeavoring to steer the collective movement

this case faced nothing remotely resembling the level of restriction on freedom of movement
typically imposed on a motorist subject to a traffic stop, the Turmel line of cases strongly
supports the conclusion that he was not “in custody” for Miranda purposes.
4 Although the trial court interpreted Lieutenant True’s statement as a direction to the defendant

that he could not enter the woods or leave the sight of Trooper Rella, the statement is susceptible
of a different interpretation. Taken in context, a plausible alternative interpretation is that when
True said, “we’re not walking out there” and “I don’t want to leave the sight of the trooper,” he was
referencing only what he (or he and Laurent) intended to do, not what the defendant was
compelled to do. Nonetheless, in contrast to the majority’s methodology, because the trial court
adopted the former interpretation, I accept it for purposes of my analysis.

21
of the trio into the woods. Hughes, 640 F.3d at 436; cf. United States v.
Madoch, 149 F.3d 596, 601 (7th Cir. 1998) (finding that presence of agent
while suspect pumped breast milk in bathroom was sufficient to establish that
she was in custody).5

Viewed objectively, True’s response to the defendant’s foray toward the
woods did not approach the level of physical restraint associated with formal
arrest. The test for custody is not whether the defendant had absolute freedom
to move about as he wished — if that were the test, then police questioning of a
motorist during a traffic stop would be unlawful in the absence of Miranda
warnings, since the motorist obviously is not free to move about as he wishes.
Rather, the test is whether a reasonable person in the defendant’s position
would have understood himself to be functionally under arrest. See Steimel,
155 N.H. at 144. Not only would a reasonable person not have believed that he
was functionally under arrest at that point, but the defendant’s own actions
clearly illustrate that he did not regard himself as being under arrest or subject
to equivalent restraint. The defendant’s response to True’s statement was
simply to walk in another direction, without comment; he did not stop, ask the
officers where he should go, or have any other reaction. His conduct
demonstrates that the defendant believed he retained control over where the
trio walked during the interview, and is wholly inconsistent with the thesis that
he regarded himself as being in custody. Nor does the presence of Rella, who
merely remained seated in his cruiser some distance away, change the
objective reality of this situation. A reasonable person in the defendant’s
position, I submit, would think it quite odd that a police officer sitting quietly
in a car at varying distances from his location (depending upon where the
defendant was at the moment) was exercising dominion and control over him
equivalent to that of a person who had been placed under arrest.

To demonstrate the extent to which the majority’s “restraint” analysis
deviates from the mainstream of settled law, it is useful to compare the facts of
this case with those of cases upon which the majority relies to support its
conclusion that this factor supports its finding of custody. The majority cites
United States v. Mittel-Carey, 493 F.3d 36 (1st Cir. 2007), in support of its
decision, but in fact the circumstances in Mittel-Carey bear little similarity to
those here. In Mittel-Carey, eight FBI agents arrived at the defendant’s house

5 The majority acknowledges that police safety concerns can be a valid reason, unrelated to
custody, for escorting or placing restrictions on the movement of a person being questioned, but
asserts that True’s testimony that such concerns were part of what led him to direct the defendant
away from walking into the woods need not be considered because the defendant was not
informed that this was the reason for the restriction. Although the defendant may not have been
explicitly informed of the reason for not going into the woods, True’s statement, “I don’t want to
leave the sight of the trooper” (emphasis added), combined with the defendant’s knowledge that
the officers hailed from afar and were unfamiliar with the area, certainly would have
communicated to a reasonable person in his position that the officers were concerned for their
safety.

22
at 6:25 a.m. to execute a search warrant for evidence that the defendant
possessed and transported child pornography. Two agents entered the
defendant’s dark bedroom, where he was asleep; one held a flashlight and an
unholstered gun. Mittel-Carey, 493 F.3d at 38. By contrast, in the instant
case, two plain-clothed police officers and one State Trooper arrived at the
defendant’s place of business during work hours. Although the officers were
armed, their weapons were not visible.

In Mittel-Carey, the agents ordered the defendant to dress and escorted
him downstairs from his bedroom. Id. By contrast, in this case, the officers
asked to speak with the defendant in private and then suggested that they sit
in the officers’ vehicle. Instead, the defendant requested that they walk and
talk. The officers then followed the defendant’s lead as he began walking
around a large open area surrounding the restaurant. When the defendant ran
out of cigarettes, he led the officers to his truck where he retrieved more
cigarettes and then sat on the driver’s seat.

In Mittel-Carey, the defendant was told, during the interrogation, that
“based on what the agents anticipated finding on his computer and what he
had already done he was looking at a lot of jail time.” Id. (quotation and
brackets omitted). By contrast, in the instant case, although the officers told
the defendant that they were there to talk with him about molesting the victim,
they never communicated to him that they had a warrant for his arrest or
threatened him with jail time. Indeed, throughout their interaction, the officers
and the defendant spoke back and forth in a conversational tone. The
defendant often responded to the officers’ questions with questions of his own
about the investigation — a circumstance which demonstrates that, far from
being cowed by the officers’ presence, he had the presence of mind to attempt
to determine how much they already knew. Sometimes the officers answered
his questions and sometimes they told him that they could not disclose details
about their investigation. At no point did the officers raise their voices or
otherwise act in a manner that was hostile or confrontational. The defendant
was quiet and often took long pauses to think between answers, and the
officers responded in kind by allowing him to do so and by speaking in polite
tones.

In Mittel-Carey, the defendant received permission from the agents on
three occasions to move from his seated position in the living room. Id. On
one occasion, he requested to use the bathroom and was allowed to do so, but
was required to leave the door partially open so that an agent could monitor
him. Id. at 39. In this case, there is no evidence that the defendant ever felt
the need to ask the officers for permission before walking to different parts of
the open field or before, at one point, going to his truck, retrieving cigarettes,
and then sitting down. The only time the officers told the defendant that he
could not walk where he pleased was when he began to walk into the woods.

23
At that point, an officer merely told the defendant that “we’re not walking out
there” because the officer did not “want to leave the sight of the trooper.”

The majority also likens this case to United States v. Colonna, 511 F.3d
431 (4th Cir. 2007). However, in that case, twenty-four FBI agents and a
computer forensic technician arrived at the defendant’s home at 6:29 a.m. to
execute a search warrant for child pornography. Colonna, 511 F.3d at 433.
After the defendant’s parents and sister allowed the agents into the home, two
agents went to his bedroom, kicked open the bedroom door, and, at gunpoint,
ordered him to dress and come downstairs. Id. According to the defendant, as
he attempted to dress, one agent “slammed him into a door jam causing
injuries to his spine.” Id. Although the defendant was told that he was not
under arrest, he was told twice that lying to a federal agent was a felony. Id.
In contrast, nothing remotely approaching this kind of aggressive law
enforcement behavior occurred in this case.

In sum, the record before us amply supports the trial court’s finding that
“the defendant was the one who decided where the interview occur[red] and he
was the one who led the officers to different locations on his property.” It is
fiction to suggest, as the majority does, that this explicit finding can be squared
with its conclusion that the defendant was subjected to restraint of a degree
amounting to the functional equivalent of arrest.

B

The majority next relies upon the fact that the interrogation here was
initiated by the police, rather than by the defendant himself. Although I agree
that this is a factor that weighs in favor of a finding of custody, its significance,
under the totality of the circumstances, is minimal. Apparently recognizing as
much, the majority attempts to “beef up” this factor by observing that “the
defendant was aware that the officers traveled from Newmarket [some three
hours away] to confront him.” Exactly how the majority believes the officers’
place of origin or travel time contributes to the custody analysis is unexplained.
At best, these considerations might lead a reasonable person to conclude that
the officers considered the subject matter of their desired interview with the
defendant to be of sufficient importance to justify the trip. I am aware of no
authority, however, that suggests the importance which officers attach to a
conversation is indicative of custody. In any event, whatever pro-custody value
the initiation-of-the-contact factor may have is completely offset by the absence
of any evidence of heavy-handed tactics on the part of the officers in securing
the defendant’s agreement to be interviewed and by the trial court’s explicit
finding — which the majority does not dispute – that the defendant “willingly
and voluntarily spoke to Lieutenant True and Sergeant Laurent.”

24
 C

The majority also places great weight upon the fact that, although the
officers told the defendant on two or three occasions that he was not under
arrest, they did not also inform him that he was free to terminate the
interrogation.6 However, while informing a suspect that he is not under arrest
may be “less determinative in favor of non-custody,” United States v. Sanchez,
676 F.3d 627, 631 (8th Cir. 2012), than informing him that he is free to leave,
it is, nonetheless, a factor that weighs in favor of — not against — a finding
that the defendant was not in custody, id. (citing United States v. Ollie, 442
F.3d 1135, 1138 (8th Cir. 2006), for the premise that, “where interviewer’s
statement to suspect that she was not under arrest weighed against custody
finding, it was less determinative than a statement informing suspect that
answers were voluntary and she was free to leave” (emphasis added)). “[A]
statement by a law enforcement officer to a suspect that he is not under arrest
is an important part of the analysis of whether the suspect was in custody.”7
United States v. Swanson, 341 F.3d 524, 530 (6th Cir. 2003) (citation omitted);
see also Davis v. Allsbrooks, 778 F.2d 168, 171 (4th Cir. 1985) (informing a
suspect that he is not under arrest is one factor courts frequently consider to
show lack of custody); United States v. Helmel, 769 F.2d 1306, 1320 (8th Cir.
1985) (in finding lack of custody, it was “significant” that the suspect was
specifically informed by the officers that he was not under arrest); Smith v.
Clark, 2013 WL 4409717, at *7 (E.D. Cal. Aug. 15, 2013) (“We think a
reasonable person who is told that he is not under arrest would understand
that he is not in custody.”).

6 Although some courts appear to regard advice to a person that he does not have to answer
questions as a factor that weighs in favor of a finding of non-custody, there is reason to question
whether this conclusion is justified. A person subject to police interrogation has no obligation to
answer questions whether he is in custody or not. And because advising a person that he does
not have to answer questions is one part of the Miranda warnings, and there is authority for the
proposition that administering Miranda warnings is a factor that may lead a person to believe he
is under arrest or its functional equivalent, see Caldwell v. State, 41 So. 3d 188, 201 (Fla. 2010)
(discussing conflicting views of various courts on this point); State v. Green, 133 N.H. 249, 258
(1990) (“[T]he reading of Miranda warnings may be a factor in deciding whether a person is in
custody under some circumstances . . . .”), it is understandable that officers desirous of not
creating a custodial atmosphere would think twice before providing such a “Miranda light”
warning.
7 That the officers had already obtained an arrest warrant for the defendant prior to interviewing

him is not relevant to our custody determination, as there is no evidence that the defendant was
aware of the warrant. See Berkemer v. McCarty, 468 U.S. 420, 442 (1984) (“A policeman’s
unarticulated plan has no bearing on the question whether a suspect was ‘in custody’ at a
particular time; the only relevant inquiry is how a reasonable man in the suspect’s position would
have understood his situation.”); see also United States v. Reynolds, 762 F.2d 489, 493 (6th Cir.
1985) (“Since the warrants were unknown to defendants, their existence could not have affected
how the defendants understood their position, which is the only relevant consideration under
Berkemer.”).

25
 Although the majority acknowledges that informing a suspect that he is
not under arrest weighs in favor of a finding of non-custody, its analysis then
turns this factor upside down by concluding that not also informing the
defendant he was free to terminate the interrogation “supports a finding of
custody at some point during the interrogation.” (Emphasis added.) No
authority supports such an approach.

D

Finally, the majority relies upon the accusatory nature of the
interrogation as support for its determination that the defendant was in
custody. It finds “that the accusatory questioning and accusatory statements
employed by the interrogating police officers each independently weigh in favor
of a finding of custody, and further, that concurrently they strongly support
such a finding.” This determination cannot be squared with our prior cases.

True and Laurent spoke with the defendant for approximately seventy-
five minutes. Ample authority establishes that an interview of this length is
not, in itself, sufficient to raise an inference of custody. See, e.g., Hughes, 640
F.3d at 437 (stating that a ninety-minute interview was of a “relatively short”
duration); Locke, 149 N.H. at 6 (“The interview’s duration was not excessive: it
lasted for three and one-half hours.”).

As for the demeanor of their exchange, the trial court found that “the two
officers and the defendant spoke back and forth in a conversational tone,”
despite the intense subject matter being discussed. The officers were neither
hostile nor confrontational to the defendant, and never raised their voices. To
the contrary, the trial court described the officers as “polite,” and determined
that “the character of the encounter was not fueled by hostility or animus.”
Again this aspect of the interrogation is similar to Hughes, in which the court
characterized the interview as non-confrontational despite the fact that the
defendant was being questioned about taking nude photographs of a minor in
his care — a subject matter that is similarly intense and unpleasant, like the
alleged sexual assault of K.L. that was the topic of discussion here. See
Hughes, 640 F.3d at 431, 437; see also Locke, 149 N.H. at 7 (finding no
custody where there was “no evidence of shouting or harsh tones at any time
during the interview”); Hammond, 144 N.H. at 404 (finding no custody where
the officers never became confrontational at any point in the questioning).

Although the interview was non-confrontational in tone, the officers did
accuse the defendant of molesting K.L., told him several times that they did not
believe his claims of not remembering certain things, and urged him to tell the
truth. However, our cases hold that even periods of aggressive questioning
during an otherwise non-confrontational interview are not sufficient to convert
the interview into custodial interrogation. See, e.g., Steimel, 155 N.H. at 146
(“We have previously held that confrontational questioning did not constitute

26
custody where it occurred briefly during an otherwise casual conversation.”
(citation omitted)). That being the case, it should follow a fortiori that the
absence of any aggressive or confrontational questioning is an even stronger
indication of non-custody.

Our cases also make clear that police interrogation does not become
custodial merely because its focus is upon the defendant’s alleged criminal
conduct. For example, in State v. Carpentier, we found that the defendant was
not in custody even though officers used strong language and loud voices when
confronting him about discrepancies between his statements and those of other
witnesses. State v. Carpentier, 132 N.H. 123, 127 (1989). We emphasized that
“this intense and accusatory questioning lasted less than ten minutes, after
[which] the interview again became relatively unconfrontational.” Id. (emphasis
added). Similarly, in State v. Carroll, the defendant’s mother, an off-duty police
officer, aggressively questioned the defendant at the police station, with three
other officers present in the interview room. State v. Carroll, 138 N.H. 687,
689-90 (1994). Both the defendant’s mother and another officer raised their
voices at times, and the defendant cried at several points during the interview.
Id. at 690. Moreover, two officers present at the interrogation described it as
“one of the most emotional and intense interrogations they had ever
witnessed.” Id. Nonetheless, we found that, under the totality of the
circumstances, the interview was non-custodial. Id. at 696.

In an attempt to reconcile its finding that the accusatory nature of the
interrogation rendered it custodial as a matter of law with the trial court’s
contrary factual finding, the majority relies upon State v. Dailey, 273 S.W.3d
94, 103 (Tenn. 2009), for the proposition that questioning can be custodial
when it is accusatory notwithstanding that the officers’ “tone of voice and
general demeanor were conversational.” But, once again, the comparison is
unpersuasive because Dailey is readily distinguishable from this case. The
first and most obvious distinction is that the questioning in Dailey occurred at
the police station, in a small interview room wherein the defendant was seated
in the back corner diagonally across from the door in front of which one of the
two interrogating officers sat. See Dailey, 273 S.W.3d at 97. Unlike this case,
in which the police informed the defendant from the outset of the purpose for
their visit, the police in Dailey secured the defendant’s presence at the station
through the ruse that they needed to take a second set of “elimination
fingerprints” because the defendant worked at the business where the victim’s
body was discovered. Id. During the course of the un-warned interview, the
officers not only falsely told the defendant that his fingerprints “had been found
in a place they shouldn’t have been” and suggested that they had other
unspecified forensic evidence of his guilt, but — most significantly for present
purposes — they told him that “if they went strictly on the evidence, they would
have to charge [him] with first degree murder.” Id. at 98 (quotations omitted).
In contrast, until the very end of the interview, the officers in this case made no
statements to the defendant that they could arrest him or that they intended to

27
do so. Given the circumstances in Dailey, it is not at all surprising that the
court found that the defendant was in custody at least at the point when the
officer made the “if I go strictly on the evidence” statement. See id. at 104.
Dailey, however, offers no support for a similar result in this case.

Thus, although I do not dispute that accusatory statements and
expressions of disbelief in a suspect’s veracity are factors that cut in favor of
custody, we have never held that they alone are sufficient to find that a suspect
was in custody — and here, as shown above, there are no other circumstances
sufficient to support such a finding. As the United States Supreme Court has
explained:

[A] noncustodial situation is not converted to one in which Miranda
applies simply because a reviewing court concludes that, even in
the absence of any formal arrest or restraint on freedom of
movement, the questioning took place in a “coercive environment.”
Any interview of one suspected of a crime by a police officer will
have coercive aspects to it, simply by virtue of the fact that the
police officer is part of a law enforcement system which may
ultimately cause the suspect to be charged with a crime. But
police officers are not required to administer Miranda warnings to
everyone whom they question.

Oregon v. Mathiason, 429 U.S. 492, 495 (1977); see also United States v.
Phillip, 948 F.2d 241, 247 (6th Cir. 1991) (“Coercive environments not rising to
the level of formal arrest . . . do not constitute custody within the meaning of
Miranda.” (citation omitted)).

III

Virtually all of the cases cited by the majority are relied upon only for
general propositions of law, such as that custody is more apt to be found in
police-initiated as opposed to suspect-initiated encounters, see ante at 12
(citing United States v. Griffin, 922 F.2d 1343, 1351 (8th Cir. 1990)), that the
accusatory nature of questioning is a factor that weighs toward a finding of
custody, see ante at 9-11 (citing Dedrick, 132 N.H. at 225), and so on. I do not
quarrel with these general legal principles. However, what the majority fails to
recognize is that many of the cited opinions held that the questioning at issue
did not constitute custodial interrogation. See United States v. Salvo, 133 F.3d
943, 953 (6th Cir. 1998); United States v. Lifshitz, 03 Cr. 572 (LAP), 2004 U.S.
Dist. LEXIS 18571, at *26 (S.D.N.Y. Sept. 15, 2004); Com. v. Groome, 755
N.E.2d 1224, 1236 (Mass. 2001); Steimel, 155 N.H. at 146; Locke, 149 N.H. at
7; Hammond, 144 N.H. at 404; State v. Graca, 142 N.H. 670, 676 (1998); State
v. Johnson, 140 N.H. 573, 579 (1995); Green, 133 N.H. at 258-59; State v.
Tucker, 131 N.H. 526, 531 (1989); People v. Henry, 980 N.Y.S.2d 594, 597
(App. Div. 2014).

28
 Above I have detailed the distinctions between this case and a few of the
cases relied upon by the majority in which the courts did find custody.
However, the reality is that all such cases relied upon by the majority are
readily distinguishable from this case,8 either because they involved station-
house interrogation — the core concern that Miranda warnings were designed
to ameliorate — or because they involved significantly greater coercive elements
than are present here. See United States v. Beraun-Panez, 812 F.2d 578, 579-
80 (9th Cir.) (questioning of defendant by two officers occurred out of doors;
officers did not tell him he was under arrest nor was he placed in handcuffs;
officers accused defendant of starting a fire, falsely told him that witnesses
could place him at the scene, demanded to know why he was lying when he
denied it, and told him that he could be deported if he “kept lying” or if he was
convicted; when a companion, on horseback, approached the scene of the
questioning, one of the officers directed him away), modified, 830 F.2d 127 (9th
Cir. 1987); United States v. Griffin, 7 F.3d 1512, 1514-15, 1519 (10th Cir.
1993) (defendant was separated from her friend and questioned by single
officer in small airport police office; questioning was accusatory; defendant was
not told that she could refuse to answer questions, terminate the interview, or
leave); Griffin, 922 F.2d at 1346 (defendant was questioned at home; when told
agents were investigating bank robbery, the defendant immediately said “the
gun wasn’t loaded”; agents told the defendant’s parents they needed to speak
with him privately; the defendant was not informed that he was not under
arrest or that he could refuse to answer questions, was told to always remain
in view of agents, and was accompanied to another room when getting
cigarettes); United States v. Wauneka, 770 F.2d 1434, 1437 (9th Cir. 1985)
(eighteen-year-old defendant transported to law enforcement office by two
armed officers; questioned first by four or five officers and, after a break during
which he broke down crying, by two officers; defendant never offered
opportunity to leave, told he had information only the perpetrator would know,
that he matched the description of perpetrator, and that he better stop lying);
White v. United States, 68 A.3d 271, 274-75 (D.C. 2014) (car stop; defendant
was not asked for license or registration, was immediately handcuffed and
isolated from young son left in car; not told that he was not under arrest);
Aguilera-Tovar v. State, 57 A.3d 1084, 1087-90 (Md. Ct. Spec. App. 2012) (after
appellant was administered a polygraph test, he was interrogated in
windowless interview room at police station where officers confronted him

8 Even State v. Hieu Tran, 71 A.3d 1201 (Vt. 2012), the case cited by the majority that arguably
presents the factual scenario most nearly analogous to that involved here, is distinguishable in
important respects, in that the questioning in that case took place within the confines of a police
vehicle, the officers did not inform the defendant either that he was free to leave or that he was not
under arrest, and one of the officers told the defendant to stop playing with his cell phone during
the interview. See id. at 1203-04. In addition, in Hieu Tran, as in our own Dedrick and Jennings
cases, the trial court made a finding that “the circumstances of the questioning created a police-
dominated atmosphere,” id. at 1204, and the appellate court merely upheld that finding. In
contrast, here the majority substitutes its judgment for the trial court’s express finding that “the
interview bears none of the hallmarks of a formal arrest.”

29
repeatedly and persistently with the fact that he failed the polygraph, accused
him of lying, and threatened to inform his wife about the negative test results);
Ross v. State, 45 So. 3d 403, 415-17 (Fla. 2010) (defendant came to station
voluntarily and was questioned in small room; never told he was free to leave;
after initial general questioning, interrogation became confrontational and
accusatorial and lasted for hours, during which defendant was repeatedly
confronted with evidence against him); Jennings, 155 N.H. at 770-71 (officers
met the defendant in the driveway of his residence, asked him to “voluntarily”
come to station; after he agreed, insisted that he travel to station in police car
rather than his own vehicle, confiscated his car keys and conducted pat-down
search of his person; questioned the defendant at the station in a small
interview room; officer confronted the defendant with allegations and said he
believed them to be true; although the defendant was told he was not under
arrest and free to leave, there was no evidence he understood this to be true;
when officer left interview room, told the defendant to knock on the door if he
needed anything); Dedrick, 132 N.H. at 221-22 (the defendant was questioned
at police station in small, windowless room; advised of his Miranda rights,
accused of untruths, and confronted with damning information); State v. Hieu
Tran, 71 A.3d 1201, 1203-04 (Vt. 2012) (questioning occurred in police cruiser
outside the defendant’s home; the defendant was repeatedly confronted with
evidence of guilt, was not told he was not under arrest or free to leave, and told
not to play with his cell phone); State v. Muntean, 12 A.3d 518, 520-22 (Vt.
2010) (the defendant was questioned in a small, windowless room at the police
station; not told he was free to leave; continuously confronted with evidence of
guilt and accused of being untruthful).

Thus none of the cases cited by the majority support the result reached
by the majority. Simply put, the majority can point to no case in which a court
has found police questioning of a suspect to involve custodial interrogation
where the questioning takes place outside as the suspect leads officers on a
walk-around of his own property, the suspect is informed he is not under
arrest, there are minimal — if any — exertions of physical control over the
suspect, and the questioning is not aggressive or hostile. In short, the
majority’s decision in this case is an outlier in Miranda jurisprudence.

For the above reasons, I respectfully dissent.

DALIANIS, C.J., joins in the dissent.

30