Slwooko v. State

COATS, Chief Judge,

dissenting.

I would affirm Judge Esch’s conclusion that Bernice Slwooko was in custody when she admitted her involvement in the murder of Jimmy Jack. Because Slwooko had not waived her rights at the time that she made her initial admissions, I conclude that the superior court was required to suppress those admissions.

When the police conduct a custodial interrogation, they must warn the person of her Miranda rights. The police must have the person waive those Miranda rights before asking any questions. Whether a person is in custody for purposes of Miranda can be simply stated — would a reasonable person have felt that she was not at liberty to terminate the interrogation and leave?1

In the present case, I agree with Judge Esch’s finding that Slwooko voluntarily went to the police station. But Slwooko, who was highly intoxicated, was hesitant to enter the police station when she arrived there. Officer Daniel Bennett encouraged her to come in to talk to him. He stated that he guided her by the arm into the police station and into the interview room. From this sequence of events, it appears that Slwooko was having second thoughts about whether she wanted to talk to the police.

Officer Bennett testified that he conducted his interview with Slwooko as a custodial interview. He stated that he had been trained to tell a person in a non-custodial interview that she was free to go at any time or could stop the questioning whenever she wanted. He would establish that the person being questioned was in the police station voluntarily and would assure her that, no matter what she said in the interview, she would not be arrested and would be free to go.

Officer Bennett stated that he did not follow this procedure when he questioned Slwooko. Because he believed that Slwooko was involved in killing Jimmy Jack, he did not want to lie to her and tell her that she would be free to go because he intended to arrest her if she admitted some involvement. Accordingly, Officer Bennett did not confirm that Slwooko was at the police station voluntarily, did not tell her that she was free to leave at any time, and did not tell her that she would be able to leave at the end of the *607interview. Instead, he warned her of her rights.

I recognize that Officer Bennett’s subjective intent to conduct a custodial interview is not controlling. The question, as we have previously stated, is whether a reasonable person in Slwooko’s position would have felt free to terminate the questioning and leave. But, applying an objective standard, it is important to note that the police never established that Slwooko was voluntarily present at the police station, never told her that she was free to cut off questioning and leave at any time, and never told her that she would be free to leave at the conclusion of the interview. Instead of giving Slwooko these assurances, the police warned Slwooko of her rights. From this sequence, I conclude that a reasonable person in Slwooko’s position would have known that the police were questioning her as a suspect. And she would have doubted that she was free to terminate the questioning and leave the police station.

After Officer Bennett warned Slwooko of her rights, he asked her whether she understood her rights and whether she would like to answer questions. Slwooko answered “No.”

Judge Esch concluded that Slwooko was answering “No” to the second question. That is, Slwooko indicated that she did not want to answer questions. Judge Esch went on to find that, because Slwooko stated that she did not want to talk to the officers, and because the officers did not terminate the interview, at that point Slwooko was no longer free to go and was therefore in Miranda custody.

My own view may vary slightly from Judge Esch’s. After Slwooko said that she did not want to answer any questions, the police not only did not cease questioning, they increased the pressure. Officer Noet told Slwooko that they had arrested Jacob Anagick “for hurting Jimmy Jack” and that Anagick had told them that Slwooko had “helped him hurt Jimmy Jack.” At this point, a reasonable person in Slwooko’s position would have recognized that the police were accusing her of killing Jimmy Jack and would have concluded that Anagick had told the police that Slwooko aided him in the murder. From Slwooko’s position, she was a suspect in the murder of Jimmy Jack. It seems clear to me, at this point, a reasonable person in Slwooko’s position would not have felt free to break off questioning and leave. She was therefore in Miranda custody. She had not waived her rights and had told the police that she did not want to answer questions. The police responded by escalating the questioning.

I recognize that, after her futile attempt to exercise her rights, Slwooko asked why she was being arrested. Officer Bennett told her that she was not being arrested. Officer Bennett’s answer does weigh against concluding that Slwooko was in custody. But telling someone that they are not being arrested differs from telling them that they are free to terminate the questioning and leave. To a lay person, the fact that you have not been arrested may merely mean that you have not been formally charged with a crime. It does not necessarily mean that you are free to go.

Therefore, it seems reasonable that, even though Officer Bennett told Slwooko she was not being arrested, she would have serious doubts about whether she was free to terminate questioning and leave. She was never told that she was free to leave. And when she tried to exercise her right to silence, the police ignored this request and continued questioning her.

It is also true that, after Officer Noet told Slwooko that Anagick told the police that Slwooko had helped him hurt Jimmy Jack, Officer Bennett tried to mitigate the statement by saying, “Well, not exactly.” But I do not believe that a reasonable person in Slwooko’s position would have seen Officer Bennett’s statement as withdrawing Officer Noet’s statement. Once the police told Slwooko that Anagick “was arrested for hurting Jimmy Jack” and said that Slwooko “helped him hurt Jimmy Jack,” Slwooko had every reason to believe that the police had substantial evidence that showed she had helped murder Jimmy Jack. Once the police told Slwooko this, it seems clear to me that a reasonable person in Slwooko’s position *608would not have concluded that she was free to break off questioning and leave.

I therefore conclude that Slwooko was in custody at the time that she made her statements admitting her involvement in the murder of Jimmy Jack. And because she was in custody, the police needed to warn Slwooko of her rights and obtain a valid waiver of those rights. Although it is clear that the police warned Slwooko of her rights, it is also clear that Slwooko did not waive those rights before she made the incriminating statements. Therefore, in my view, this Court is required to suppress those statements.

. State v. Smith, 38 P.3d 1149, 1154 (Alaska 2002).