People v. Johnson

• Decision Date: 15 November 1983
• Docket Number: No. 83SA379,83SA379
• Citation: 671 P.2d 958
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Evan Dean JOHNSON, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 958

671 P.2d 958

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Evan Dean JOHNSON, Defendant-Appellee.

No. 83SA379.

Supreme Court of Colorado,

En Banc.

Nov. 15, 1983.

Stanley C. Peek, Dist. Atty., Kenneth R. Storck, Deputy Dist. Atty., Greeley, for plaintiff-appellant.

Hyatt Legal Services, Roger P. Barrick, Northglenn, for defendant-appellee.

NEIGHBORS, Justice.

This is an interlocutory appeal under C.A.R. 4.1. The People challenge the trial court's order suppressing one of two confessions made by the defendant. We reverse and remand with directions to make findings of fact and conclusions of law on the issues of custody and voluntariness.

I.

The defendant is charged in an information filed in the District Court for Weld County with one count of second-degree burglary ¹ and one count of felony theft. ² The People allege that the defendant entered the residence of Richard Sheetz located in Erie, Colorado and stole a Smith & Wesson .38 caliber handgun on March 9, 1983.

On March 10, 1983, Investigator Mary Bomgardner of the Weld County Sheriff's Office reviewed a case report concerning the alleged burglary of the Sheetz residence prepared the previous day by Officer Robert Stewart. The report included information obtained by Officer Stewart from Dana Sheetz, the victim's daughter. Ms. Sheetz told Officer Stewart that "only a couple people including Johnson [the defendant] knew that no one would be at the residence today," and that the defendant's place of employment was in close proximity to the Sheetz home. After reviewing the report, Investigator Bomgardner contacted Ms. Sheetz at the residence in Erie. Ms. Sheetz told Investigator Bomgardner that she had spoken with the defendant earlier, and told him that Officer Stewart wanted to talk with him about the burglary. Ms. Sheetz gave the defendant a piece of paper containing Officer Stewart's name and telephone number and told him to call the officer. According to Ms. Sheetz, "the defendant turned white," upon hearing this information. She also told the investigator that she had a "hunch" the defendant committed the burglary.

Investigator Bomgardner then contacted the defendant at his place of employment and requested that he step outside. Investigator Bomgardner was dressed in plain clothes and no weapon was visible. Once outside, the investigator showed the defendant her police identification and told him she wanted to discuss the burglary. She asked the defendant whether he saw anything unusual at the Sheetz residence the day of the burglary. The defendant answered that he did not. Investigator Bomgardner asked the defendant whether he would take a polygraph test. The defendant looked down at his feet for ten to twenty seconds, appeared as if he was going to cry, and said "I guess I might as well tell you, I did it." Investigator Bomgardner immediately advised the defendant of his Miranda rights. The defendant initialed a form which stated that he understood his rights and waived them. The defendant then made a written statement. ³ After completing the statement, the defendant was taken to the Weld County Jail.

The defendant filed a motion to suppress his confession. At the suppression hearing, Investigator Bomgardner testified that when she initially contacted the defendant he was, in her mind, "somewhere between a witness and a suspect." She stated that she did not have probable cause to arrest him. She also testified that, in her mind, the defendant was no longer free to leave after he confessed to the burglary. However, the investigator stated that the defendant was free to leave before he made the inculpatory statement in response to her question concerning his willingness to take a polygraph test.

The defendant testified that from the time the investigator contacted him he felt that he was not free to leave. He interpreted the question of whether he would be willing to take a polygraph test as asking whether he committed the burglary. He believed that if he failed to answer he would, in effect, be admitting the crime. He also felt that if he simply left, that act would be considered an additional admission of guilt. The trial court granted the defendant's motion to suppress the oral statement, finding that there had been interrogation. The court stated:

"I do feel in this case that that question was akin to putting the Defendant right smack on the spot. And in the eyes of the Defendant that was akin to asking him did he do it.

"It seems to the Court, before someone is asked that ultimate question, if Miranda is to have any meaning, they have to be advised that they are not required to answer that type of question."

II.

The Fifth Amendment to the United States Constitution guarantees each citizen the privilege against self-incrimination. This amendment insures that "[n]o person ... shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Court interpreted this constitutional guarantee to require that, prior to custodial interrogation, law enforcement officials must advise an accused person of his right to remain silent, that any statement he does make may be used as evidence against him, and his right to the presence of an attorney, either retained or appointed.

A.

The defendant urges us to uphold the trial court's suppression order and argues that he was psychologically deprived of his freedom of action to such an extent that prior to any questioning he should have been advised of his Miranda rights. The People contend that the trial court erred in ruling that Miranda warnings should have been given in this case because there was no custodial interrogation within the meaning of Miranda. The Court stated in Miranda:

"To summarize, we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized."

384 U.S. at 478, 479, 86 S.Ct. at 1630, 16 L.Ed.2d at 726. See also People v. Orf, 172 Colo. 253, 472 P.2d 123 (1970). We agree that the procedural safeguards required by Miranda are triggered only when a suspect is interrogated in a custodial setting. Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976); People v. Algien, 180 Colo. 1, 501 P.2d 468 (1972); People v. Smith, 173 Colo. 10, 475 P.2d 627 (1970). In Beckwith, the Court noted that unless the suspect is in a custodial surrounding, the interrogation cannot be considered inherently coercive.

The question here is whether the defendant was "in custody" at the time of the initial questioning. Custodial interrogation requiring the giving of Miranda warnings does not necessarily refer to police station interrogation. See Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969) (the suspect was in custody when he was awakened at 4:00 a.m. in his bedroom by four police officers who began to question him about a murder); Mathis v. United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968) (a defendant in jail serving a sentence for a conviction of a state charge is in custody for Miranda purposes when he is interrogated by federal officers about a federal crime); People v. Parada, 188 Colo. 230, 533 P.2d 1121 (1975) (a defendant who voluntarily reported to district attorney's office in response to a letter was not in custody because she testified that she was neither required to meet with the investigators nor that she had to remain at the office once she arrived). Likewise, not all station house interrogations rise to the level of custodial interrogation. Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977) (the defendant's compliance with officer's request that he come to police station to discuss something, and the ensuing station house interrogation during which he confessed to burglary was not a custodial interrogation which required the Miranda advisement prior to questioning).

Custodial interrogation requires that the interrogation be conducted under circumstances where the person has been taken into custody or deprived of his/her freedom of action in any significant way. Parada, 188 Colo. 230, 533 P.2d 1121. Absent an actual arrest or testimony by the police that the suspect was not free to leave at the time of the interrogation, such factors as the purpose, place, and length of the interrogation must be examined to decide whether the accused was in custody. In making this determination, an objective test must be applied. The standard is "whether under the circumstances a reasonable man would believe himself to be deprived of his freedom in any significant way." Algien, 180 Colo. at 7, 501 P.2d at 471; People v. Marioneaux, 44 Colo.App. 213, 618 P.2d 678 (1980). This objective standard is consistent with the decisions of this court and the United States Supreme Court which construe the word "seizure" for the purposes of the fourth amendment. See United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); People v. Pancoast, 659 P.2d 1348 (Colo.1982) ⁴ (test is whether under the circumstances surrounding the incident a reasonable man would have believed that he was not free to leave); People v. Bookman, 646 P.2d 924 (Colo.1982).

The officer's subjective state of mind is not the appropriate standard for determining whether and when a person has been arrested or otherwise deprived of his freedom of movement in any significant way under either the fourth or the fifth amendments. See Pancoast, 659 P.2d 1348. However, the officer's state of mind is relevant to the issue of whether he, as a person of reasonable caution, has knowledge of facts and circumstances which establish the existence of probable cause to arrest the suspect under the fourth amendment. See Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964...