concurring in the judgment of reversal and otherwise dissenting:
I concur in the result reached by the majority. I am not convinced, however, that this case should be remanded for a determination of whether the defendant was “in custody.” In Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966), the United States Supreme Court defined “custodial interrogation” as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Eleven years later, in Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977), the Supreme Court explained that the phrase “in custody” means more than routine police questioning during an investigation. In Oregon, a police officer investigating a burglary left a note at the defendant’s apartment asking him to call because “I’d like to discuss something with you.” When the defendant called, the officer asked if they could meet at a nearby state patrol office. The defendant was told that he was not under arrest but that the police believed he was involved in the burglary. Within a few minutes, the defendant confessed to the crime. The Supreme Court concluded that a Miranda advisement was not required because the defendant was not “in custody”:
“In the present case ..., there is no indication that the questioning took place in a context where respondent’s freedom to depart was restricted in any way. He came voluntarily to the police station, where he was immediately informed that he was not under arrest. At the close of a ½ hour interview respondent did in fact leave the police station without hindrance. It is clear from these facts that Mathiason was not in custody ‘or otherwise deprived of his freedom of action in any significant way.’
*964“Such a noncustodial situation is not converted to one in which Miranda applies simply because a reviewing court concludes that, even in the absence of any formal arrest or restraint on freedom of movement, the questioning took place in a ‘coercive environment.’ Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him ‘in custody.’ It was that sort of coercive environment to which Miranda by its terms was made applicable, and to which it is limited.”
Id. at 495, 97 S.Ct. at 714. See People v. Pancoast, 659 P.2d 1348, 1350 (Colo.1982) (“It does not follow ... that every personal confrontation between a police officer and a citizen, which results in some form of interrogation directed to the citizen, necessarily involves a ‘seizure’ of the person.”); People v. Parada, 188 Colo. 230, 233-34, 533 P.2d 1121, 1123 (1975) (“In the absence of actual arrest, something must be said or done by the authorities either in their manner or approach or in the tone or extent of their questioning, which indicates that they would not have heeded a request to depart or to allow the suspect to do so.”).
Based on the Supreme Court’s interpretation in Oregon, I am satisfied that the defendant in this case was not “in custody” when the investigator asked him about the Sheetz burglary and whether he would submit to a polygraph test. Even if the question about the polygraph test occurred in a “coercive atmosphere,” his freedom of action was not significantly deprived, and he was apparently free to go at any time. Under the circumstances, I do not believe that a remand on the “in custody” question is warranted.
In addition, I dissent from Part 11(B) of the majority opinion, which affirms the trial court’s ruling that the investigator’s inquiry about the polygraph test was a subtle way of asking the “ultimate question”: did the defendant commit the burglary? The majority characterizes this inquiry as “express questioning or its functional equivalent which was reasonably likely to elicit an incriminating statement from the defendant” and cites Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), in support of its conclusion: Maj. op. at 962.
In my view, the question about the defendant’s willingness to take a polygraph test was not accusatorial but investigative in nature and, as a result, did not require a prior Miranda advisement. The majority misreads Rhode Island and in the process supports an interpretation by the trial court of the question asked by the investigator which is not supported by the record. In Rhode Island, 446 U.S. at 300-02, 100 S.Ct. at 1689-90, the United States Supreme Court explained that
“the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent.... [T]he term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police ... that the police should know are reasonably likely to elicit an incriminating response from the suspect.... [However,] since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.”
(emphasis in original).
There is nothing in the record to support a conclusion that the investigator should *965have known that her question relating to the polygraph test was reasonably likely to elicit the defendant’s confession.
The majority opinion in effect shifts the focus on what the investigator should have known at the time she first encountered the defendant, to the time when the defendant, after the opportunity to discuss the matter with counsel, testifies in court. I conclude that the investigator in this case neither knew nor should have known that her question about the polygraph test was reasonably likely to elicit the defendant’s confession. It was an investigative inquiry directed to a person who was “somewhere between a witness and a suspect.” I am not persuaded that his demeanor should be the determining factor in the court’s analysis of whether “interrogation” has occurred.
In my opinion, the question about the polygraph test was not express questioning or its functional equivalent and the trial court’s ruling should be reversed.