dissenting.
Not since People v. Connelly, 702 P.2d 722 (Colo.1985), rev'd sub nom. Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986), has this court so clearly excluded a confession as involuntary in the absence of *880any objectively coercive police conduct. I also believe the majority breaks new ground in finding a suspect to be in police "custody" for purposes of the prophylactic Miranda warnings as a result of his own medical limitations rather than any express or implied claim of authority by the policc. Because I am convinced that the majority's conclusions in both the due-process and privilege-against-self-incrimination arenas reflect fundamental misinterpretations of governing federal law, I respectfully dissent.
The elasticity of a totality-of-the-cireum-stances analysis typically makes it possible for courts to avoid precise distinctions and explain their conclusions in terms of a nonspecific balancing of various considerations. It often, therefore, becomes clear that any particular factor is essential to the balance only when it is completely absent. In Con-nelly, the absence of any state action whatsoever made it necessary for the Court to refine its articulation of the " 'old' due process voluntariness test," Oregon v. Elstad, 470 U.S. 298, 307-08, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985) (quoting Steven J. Schul-hofer, Confessions and the Court, 79 Mich. L.Rev. 865, 877 (1981)), by explaining that despite its earlier references to a "rational intellect" and "free will," see Mincey v. Arizona, 437 U.S. 385, 398, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) (quoting Townsend v. Sain, 372 U.S. 293, 307, 88 S.Ct. 745, 9 L.Ed.2d 770 (1963) (quoting Blackburn v. Alabama, 361 U.S. 199, 208, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960))), "coercive government misconduct" was always the "catalyst" for its due-process exclusion of confessions as involuntary. Connelly, 479 U.S. at 163, 107 S.Ct. 515. Although the Court there described this necessary predicate to finding a confession involuntary using terms like "official coercion," "police misconduct," "wrongful acts," "coercive tactics," "coercive police activity," "police overreaching," and "coercive government misconduct," id. at 163-67, 107 S.Ct. 515, the complete absence of any police conduct in Comnmelly has given some lower courts, including this one, a small opening to de-emphasize the significance of governmental coercion in the voluntariness calculus and correspondingly overemphasize the defendant's mental state. See, eg., People v. Humphrey, 132 P.3d 352, 362 (Colo.2006).
Because the police in this case actually did something, the majority considers this case, as it has others in the past, to be distinguishable from Connelly. Because the police, however, did nothing even arguably intimidating or physically coercive to the defendant, the majority's opinion necessarily reflects the narrowness of its reading of Conmnmelly. Ignoring the importance of wrongful or improper police conduct to Con-melly's rationale, the majority continues to exclude any confession causally related to some kind of state action, unless it is proven to be "the product of an essentially free and unconstrained choice." Maj. op. at 877 (reviving this court's pre-Connelly jurisprudence in People v. Raffaelli, 647 P.2d 230, 234 (Colo.1982)). The majority therefore understands the Due Process Clause to require suppression whenever a defendant's subjective "will to resist" is sufficiently fragile to be "overborne" by an investigating officer's conduct, however innocuous and proper that conduct may be. Id.
That Connelly did not merely mandate a predicate of some state action, but rather required the confession to be causally connected to police "misconduct," seems clear enough from both its choice of language and its underlying rationale. Other courts have had little difficulty in understanding Conmnmelly to require some "objectively coercive" police activity before even examining the accused's subjective state of mind and the sufficiency of the "coercion" in question to overbear his will. McCall v. Dutton, 863 F.2d 454, 459 (6th Cir.1988) (following United States v. Rohrbach, 813 F.2d 142, 144 (8th Cir.1987), and creating a three-part voluntariness test that first considers whether "the police activity was objectively coercive"); State v. Carrillo, 156 Ariz, 125, 750 P.2d 883, 894-95 (1988) ("Under Con-melly, the question of voluntariness is to be determined by an objective evaluation of police conduct and not by [the] defendant's subjective perception of reality."). To the extent that this court's rejection of any requirement of objectively coercive police conduct had thus far remained unclear, with *881today's holding that can no longer be the case.
Not only was the defendant informed that he had not been charged with a crime and was not in legal custody of any kind, but through his own statements, he made clear his understanding that he found himself in a hospital room for medical, not legal, reasons and that he fully expected to be released by at least the following day. Not only was it undisputed that his inculpatory statements were not the product of intimidation, physical coercion, or deception of any kind but also that the police initially left without speaking to him when medical staff recommended as much and upon their return the next day, when the defendant indicated his unwillingness to sign a medical release or answer questions about his property or wife, they made clear to him that they would not question him but would merely tell him what the evidence suggested, a course of action they followed until after he confirmed that their "surmises" were correct.
The majority does not appear to dispute these facts but openly holds that in light of the defendant's weakened physical and mental state, confronting him with the evidence against him, even in this conversational and unthreatening manner, was sufficient to constitute coercion. In doing so, the majority indisputably rejects any notion that due process is implicated only by some inherently offensive or wrongful police conduct and instead interprets Commelly only to have modified the Court's prior voluntariness jurisprudence to require sufficient state action to implicate the Fourteenth Amendment. Not only would state action of this kind be necessarily involved in the mere use of a confession in a criminal prosecution but interpreting the term "coercive," as the majority does, to refer only to the effect, as distinguished from the inherent nature, of police conduct is simply incompatible with the Supreme Court's synonymous usage of terms like "wrongful" and "misconduct."
If the majority were confident of this interpretation of the old due process voluntariness test, it would, of course, be unnecessary to additionally address Miranda's prophylactic warnings. More importantly, however, the majority's interpretation of the "custody" predicate for Miranda warnings is no less strained than its voluntariness rationale. I do not consider the combination of two equally unconvincing arguments for reversal to improve the logical force or persuasiveness of either.
In its finding that the defendant was in "custody," the majority does not appear to contest the defendant's appreciation of the fact that he was not in legal custody but was being visited by detectives, in a hospital room where he was regularly attended by medical staff and family, or that his refusals to grant access to his medical records or answer questions were honored by the detectives. Nor does the majority suggest that a reasonable person would not have understood that any restrictions on his movement were imposed by his doctors and medical condition rather than the police. Instead, it finds that the defendant was in custody largely because, as a practical matter, he lacked the physical capacity to remove himself from the presence of the detectives or make them stop talking to him.
Relying heavily on an isolated sentence from a case addressing the obligation of federal habeas courts to review determinations of "custody," as distinguished from addressing the meaning of "custody" itself, the majority finds and attaches great significance to the fact that a reasonable person in the defendant's cireumstances would have felt himself "not at liberty to terminate the interrogation and leave." See Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995). Because the detectives continued to confront the defendant with their findings despite his refusal to answer questions, the majority finds it reasonable for him to have felt himself "not free to terminate the communication." Maj. op. at 876. Although more is clearly implied by custody for purposes of Miranda, I believe that for an individual whose freedom of movement is restricted for reasons other than official police action to be considered in custody, a reasonable person in similar cireumstances must feel himself no longer free to decline to cooperate with the investigation.
*882With regard to investigatory stops, a less intrusive form of personal seizure than a formal arrest, the Supreme Court has clearly held that an individual whose freedom of movement is restricted by circumstances other than legal authority is not "stopped" merely because he cannot leave. He is subject to a stop only if he reasonably feels he cannot refuse to cooperate. Florida v. Bostick, 501 U.S. 429, 486, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (explaining that in bus sweep for narcotics "[the Defendant's] movements were 'confined' in a sense, but this was the natural result of his decision to take the bus; it says nothing about whether or not the police conduct at issue was coercive"). Although "custody" sufficient to implicate the privilege against self-incrimination outside of legal proceedings requires a reasonable perception of the equivalent of a formal arrest rather than merely an investigatory stop, the difference is one of degree and not the factors to be considered. See Maj. op. at 875 (considering a set of factors similar to those set forth in United States v. Mendenhall, 446 U.S. 544, 554-55, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)). It would be illogical and facially absurd to find it reasonable for one to believe he has effectively been arrested if he could not even reasonably believe he has been stopped. In addition to other indicia of an arrest (which I consider absent from this case), the majority should therefore have considered whether the defendant reasonably felt himself not at liberty to refrain from commenting on the detectives' evidence rather than whether he could make the detectives remain silent or leave.
. Although the United States Supreme Court may not, under the unique cireum-stances of this case, have completely foreclosed either of the majority's holdings, in light of its existing jurisprudence and the interpretation of that jurisprudence by a number of other jurisdictions, I feel confident that faced with these circumstances, the Supreme Court would reject the majority's understanding and application of both the old due process voluntariness test and the Court's own Miranda doctrine. I therefore respectfully dissent.
I am authorized to state that Justice RICE and Justice EID join in this dissent.