with whom CLIFFORD, J., joins, dissenting.
[¶ 24] I must respectfully dissent. In my judgment, the Court misapplies the standard of review set forth in Thompson v. Keohane, 516 U.S. 99, 112-13, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995), and engages in a de novo review of both the facts and the law.
[¶ 25] The factual record is somewhat more complete than usual because it includes a transcript of the taped interview. This has led the Court to draw conclusions that are subtly different from the factual findings of the trial court. For example, this Court states that the detectives “did not disguise the fact that Holloway was their prime suspect.” The trial court found “the defendant quickly became the focus of the investigation, a fact that the detectives were quite clear in stating to the defendant.” In addition, the Court relies on testimony of defendant that is at odds with the trial court’s factual findings. This Court credits Holloway’s testimony that he could see the detectives’ weapons. The trial court found the detectives “made no display of their weapons.”
[¶ 26] I agree that it was error for the trial court to consider defendant’s subjective reaction to the statement that he was not under arrest. The trial court, however, properly considered the fact that the detectives told Holloway he was not under arrest and appropriately considered the objective impact of that statement on the issue of whether Holloway was free to come and go. See Stansbury v. California, 511 U.S. 318, 325, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994). This Court elevates the trial court’s expression of doubt as to the sincerity of the detectives’ statements into a finding that “the surrounding circumstances belied the detectives’ statements.” The trial court made no such conclusion. The trial court found as a matter of fact that the questioning took place in defendant’s motel room, probable cause to arrest the defendant was not present at the beginning of the interview, the plainclothes detectives made no display of their weapons, there was no physical restraint on defendant, he moved around the room and, on one occasion outside of the room without being physically detained, and the questioning was not unduly long. The trial court recognized that the detectives initiated the contact, their questioning became more accusatory as defendant placed himself at the scene of the crime, defendant quickly became the focus of their investigation, and they were highly suspicious of him. The depth of their suspicion, however, is not controlling. As the United State Supreme Court has noted: “Even a clear statement from an officer that the person under interrogation is a prime suspect is not, in itself, dispositive of the custody issue, for some suspects are free to come and go until the police decide to make an arrest.” Id.
[¶ 27] Reviewing the facts found by the trial court independently. I conclude that defendant’s freedom of movement in his motel room was not restrained to the degree associated with formal arrest until he was arrested. I would affirm the judgment.