dissenting:
23 I disagree with the majority's conclusion that Mumford was not in custody for purposes of Miranda at the time he made his statements to the police. Consistent with our precedent, the totality of cireumstances indicates that a "reasonable person in the defendant's position would consider himself to be deprived of his freedom of action to the degree associated with a formal arrest." People v. Hankins, 201 P.3d 1215, 1218 (Colo.2009).
{24 Although Mumford was not handcuffed or physically restrained and the interview took place in a conversational tone, his freedom of movement was restricted to the degree associated with formal arrest. The police arrived with a warrant to search his home for drugs, officers who had previously drawn weapons told him he was not free to leave, the police guarded him as he sat on the curb with suspects who had admitted to drug use, and they reassured him that if he cooperated, things would go well for him. In my view, based on the totality of cirenmstances, the police subjected Mumford to custodial interrogation. Both his statement and the evidence discovered because of it should have been suppressed.
125 The majority supports its conclusion based on six factors: (1) the police drew their guns only briefly; (2) Mumford was not handcuffed or otherwise physically restrained; (8) Mumford was questioned in a "neutral area"; (4) the interview was conducted conversationally; (5) Mumford was not the subject of the original arrest warrant; and (6) the officer's reassurances that nothing bad would happen were made to the group generally. Maj. op. at 957-58, 1% 16-19.
T 26 We were presented with the first four of these factors in People v. Moore, 900 P.2d 66 (Colo.1995), yet we still found the defendant to be "in custody" in that case. There, officers were present at Moore's home to search the residence for evidence of narcotics trafficking. Id. at 68. When the defendant came home, officers initially drew their weapons but holstered them shortly thereafter. Id. at 69. A detective showed Moore the *960search warrant and advised him that he was not under arrest and was free to leave at any time. Id. The detective instructed Moore that, if he did not leave, he should sit on a recliner in the living-room. Id. at 68. Moore was not handcuffed. Id. The detective then held up Moore's wallet and asked what he would find if he looked inside. Id. at 69. Moore responded "three eight-balls." Id.
127 Despite the non-threatening and conversational nature of the interview, the fact that the interview was conducted in Moore's home, and the fact that Moore was not physically restrained and was advised that he was free to leave, we found that Moore was in custody because he was met by armed officers with their guns drawn and his movement was limited to the recliner during the search and questioning with armed officers close by in the residence. Id. at 72-78.
128 As in Moore, the interview here was non-threatening, and the court below found (based on conflicting testimony) that Mumford was not handcuffed or otherwise physically restrained at the time of the interview, though a number of armed police officers were nearby. The police here also drew, but later holstered, their weapons and did not have them drawn during the interview. In fact, other cireumstances in this case demonstrate a greater degree of confinement than in Moore: the police expressly told Mumford that he was not free to leave, his identification was confiscated and not returned, and he was directed to sit on the curb outside his home with other suspects who were handcuffed. Although not physically restrained, his freedom of movement was severely limited. Officers testified that Mumford and the other occupants of the house were "under guard" while they sat on the curb. Given that officers had drawn their weapons during Mumford's first encounter with them, a reasonable person in this situation would not have felt free to leave the officers' presence.
129 The majority urges that the present case can be distinguished from Moore and a similar case, People v. Polander, 41 P.3d 698 (Colo.2001), because in those cases, the defendant was questioned about specific incriminating evidence under cireumstances that left "no doubt that they would be arrested and not merely briefly detained." Maj. op. at 958, 120. The majority supports this distinction with the proposition that Mumford knew he was not the subject of the arrest warrant (as evidenced by the fact that he produced Timmerman when the officers came to the door) and the fact that the detective asked open-ended questions rather than pointing to a specific piece of evidence. Id. at 958-59, ¶¶ 18-19, 21.
130 But, this narrowly drawn distinction does not take into account that the police arrived with two warrants: one to arrest Timmerman and one to search Mumford's home for drugs. While the police searched his home, Mumford was expressly told he was not free to leave and was required to sit on the curb with a group of people (including Timmerman) who had admitted to drug use in the house and who had pointed the police to places in the house where drugs might be found. Thus, Mumford had every reason to believe that the officers would ultimately find the drugs the other occupants admitted to, as well as the drugs he had in his nightstand and he would be arrested. The majority's distinction between this case and Moore would require the officers to have questioned Mumford specifically regarding what they would find in the nightstand in order for his statements to be considered "custodial" even though other indicia of eustody not present in Moore were clearly present in this case. This is inconsistent both with our precedent in Moore and the totality of cireumstances test in which no one factor should be determinative. People v. Hankins, 201 P.3d 1215, 1219 (Colo.2009).
{31 The majority also states that "there were no objective cireumstances indicating that police already discovered evidence connected to Mumford virtually precluding the possibility of his release short of formal arrest" and that "it was by no means clear that Mumford would be arrested or even detained for an extended period of time." Maj. op. at 959, 121. However, the majority's view of the "objective circumstances" at the time of Mumford's detention is not the applicable legal standard. Rather, the legal standard is whether a "reasonable person in the suspect's position would believe himself to be deprived of his freedom of action to the degree associated with a formal arrest." Hankins, 201 P.3d at 1218.
*961132 Finally, as noted by the dissent in the court of appeals decision, unless the police had grounds to arrest, the detective lacked any legitimate basis for offering Mumford reassurance that "if he cooperated things would go well for him." People v. Mumford, -- P.3d --, -- (Colo.App.2010). Although the majority dismisses the role that the detective's reassurances played in inducing Mumford to speak, a reasonable person would infer from the detective's statement that he was in eustody because the police had grounds to arrest him.
Accordingly, I respectfully dissent.
I am authorized to state that Chief Justice BENDER joins in this dissent.