concurring in part and dissenting in part:
I agree with part II of the majority opinion which holds that the trial court erred' by suppressing evidence of the contents of the wallet found in the vehicle in which Moore was a passenger. However, I disagree with the majority’s conclusion that the defendant was in custody when he was asked and answered one question by police officers in his apartment. The record does not support that conclusion under any test and certainly not the totality of circumstances test adopted by the majority.
It is well established that a valid custodial interrogation requires that a person be given certain advisements. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). If such advisements are not given to a person who is in custody, any statements made as a result of the interrogation must generally be suppressed. Id. at 479, 86 S.Ct. at 1630.
The determination of whether Moore was in custody is not altered by the fact that he testified he did not feel he was free to leave. The pertinent inquiry is not based on his subjective mental state, but rather whether a reasonable person in his situation would feel free to leave. Stansbury, - U.S. -, -, 114 S.Ct. 1526, 1528 (1994); People v. Hamilton, 831 P.2d 1326, 1330 (Colo.1992). This inquiry requires a consideration of the totality of the circumstances surrounding the interrogation. People v. Dracon, 884 P.2d 712, 717 (Colo.1994); People v. Haurey, 859 P.2d 889, 893 (Colo.1993).
Moore was not hand-cuffed nor was he restrained in any manner when he left Hill and Officer Murphy and returned to his apartment. Although some of the officers in the apartment apparently drew their weapons upon Moore’s entry, they immediately re-holstered them upon determining that there was no threat. The majority’s recognition that Moore was shocked by this display is nothing more than a subjective indicia which adds nothing to the inquiry of custody.
Furthermore, it is undisputed that after Moore entered the apartment, Detective Schneeberger showed him a copy of the *74search warrant, and told Moore that he was not under arrest and was free to leave at any time, but that if Moore chose to remain, “[he] need[ed] to sit on the couch.”1 This directive was presumably given to Moore in order to ensure the safety of the officers who were conducting the search and to prevent potential destruction of evidence on the premises.
Rather than leaving the apartment, the defendant testified that he took off his coat, sat on the couch, put his feet up on a table and watched television for the duration of the search. Moore was not hand-cuffed or restrained in any manner nor was the front door blocked during the thirty-five minutes it took to complete the search.
These undisputed facts are far removed from the types of restraint which this court has recognized as necessary for a finding of custody. See, e.g., Dracon, 884 P.2d 712 (Colo.1994) (defendant was in custody where taken to police station, questioned for approximately four hours and detained for over seven hours without being told that she was free to leave); People v. Breidenbach, 875 P.2d 879 (Colo.1994) (custodial interrogation where defendant was physically restrained and questioned at gunpoint).
Here, the facts lead to only one conclusion, that a reasonable person in Moore’s circumstances would have felt free to leave. Indeed, there was a woman present in the apartment during the search who was also advised that she was not under arrest and could leave at any time. Fifteen minutes later, she left the apartment without any difficulty.
Moore remained in his apartment during the search of his own free will and volition. He was not in custody when he made the inculpatory statement and suppression by the trial court was in error. This court compounds the error by affirming that decision. I dissent to part III of the majority opinion.
I am authorized to say that Justice MUL-LARKEY joins in this dissent.
. The majority recognizes that Moore stated that "none of the officers indicated to him that he could leave his apartment." Maj. op. at 73. However, &e trial court found that Officer Schneeberger did in fact tell Moore that he could leave at any time.