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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                                   NO. 31,587

 5 PAUL MEEKS,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
 8 Gary L. Clingman, District Judge

 9   Gary K. King, Attorney General
10   Margaret E. McLean, Assistant Attorney General
11   Joel Jacobsen, Assistant Attorney General
12   Santa Fe, NM

13 for Appellee

14 Bennett J. Baur, Acting Chief Public Defender
15 Kimberly Chavez Cook, Assistant Appellate Defender
16 Santa Fe, NM

17 for Appellant

18                                 MEMORANDUM OPINION

19 VANZI, Judge.
 1   {1}   Defendant’s motion for partial rehearing on second memorandum opinion is

 2 granted. The memorandum opinion filed in this case on April 2, 2013, is hereby

 3 withdrawn, and this opinion is substituted in its place.

 4   {2}   Defendant Paul Meeks appeals a district court order denying his motion to

 5 suppress. In this Court’s notice of proposed summary disposition, we proposed to

 6 affirm Defendant’s conviction for criminal sexual contact of a minor. Defendant filed

 7 a memorandum in opposition, which we considered. Because we were not persuaded

 8 by his arguments, we affirmed Defendant’s conviction in a Memorandum Opinion,

 9 filed January 26, 2012. Subsequently, Defendant filed a motion for rehearing. We

10 granted the motion, withdrew the Opinion, and assigned the case to the Court’s

11 general calendar. After reviewing the parties’ briefs and the record on appeal, we

12 remain unpersuaded by Defendant’s arguments and affirm.

13   {3}   Because this is a memorandum opinion and the parties are familiar with the

14 facts and procedural background, we discuss the pertinent facts within the context of

15 Defendant’s arguments.

16 DISCUSSION

17 Standard of Review

18   {4}   “In reviewing a district court’s ruling on a motion to suppress, we observe the

19 distinction between factual determinations which are subject to a substantial evidence

20 standard of review and application of law to the facts, which is subject to de novo

                                              2
 1 review.” State v. Bravo, 2006-NMCA-019, ¶ 5, 139 N.M. 93, 128 P.3d 1070

 2 (alteration, internal quotation marks, and citation omitted). “Determining whether or

 3 not a police interview constitutes a custodial interrogation requires the application of

 4 law to the facts.” State v. Nieto, 2000-NMSC-031, ¶ 19, 129 N.M. 688, 12 P.3d 442.

 5   {5}   We first address Defendant’s argument that he was not free to leave and then

 6 consider Defendant’s remaining arguments that, under the totality of the

 7 circumstances, he was under custodial arrest.

 8 Freedom to Leave

 9   {6}   Law enforcement officers must advise a suspect of his rights pursuant to

10 Miranda v. Arizona, 384 U.S. 436, 444-45 (1966), when he is the subject of a

11 “custodial interrogation.” Nieto, 2000-NMSC-031, ¶ 20. The sole issue in this case

12 is whether Defendant was “in custody” at the time he gave his statement to the police

13 and, as a result, whether Miranda warnings were required. In order to establish that

14 an individual is in custody for Miranda purposes, “the court must apply an objective

15 test to resolve the ultimate inquiry: was there a formal arrest or restraint of freedom

16 of movement of the degree associated with a formal arrest.” State v. Wilson, 2007-

17 NMCA-111, ¶ 23, 142 N.M. 737, 169 P.3d 1184 (internal quotation marks and

18 citation omitted). In this case, Defendant was not formally arrested at the police

19 department in Lynchburg, Virginia. Therefore, we must “engage in a fact-specific

20 analysis of the totality of the circumstances under which the questioning took place

                                              3
 1 in order to decide whether the custody requirement is met.” State v. Olivas, 2011-

 2 NMCA-030, ¶ 10, 149 N.M. 498, 252 P.3d 722.

 3   {7}   We have previously identified several factors to consider when determining

 4 whether a reasonable person would believe he is free to leave, including “the purpose,

 5 place, and length of interrogation[,] . . . the extent to which the defendant is

 6 confronted with evidence of guilt, the physical surroundings of the interrogation, the

 7 duration of the detention, and the degree of pressure applied to the defendant.” Bravo,

 8 2006-NMCA-019, ¶ 9 (internal quotation marks and citation omitted). Applying these

 9 factors, for the reasons that follow, we conclude that Defendant was free to leave the

10 interview room.

11   {8}   As a preliminary matter, this Court granted Defendant’s motion for rehearing

12 based on the factual representations and issues raised in his motion for rehearing,

13 specifically those issues related to whether Defendant was free to leave. See Wilson,

14 2007-NMCA-111, ¶ 22 (determining that freedom to leave is a factor relevant to the

15 inquiry of whether a person is in custody for Miranda purposes). Defendant argued

16 that the limited record on summary calendar did not make it clear whether he could

17 have exited the two locked doors without assistance. Defendant also asserted that the

18 door to the interrogation room “was closed and blocked by an armed officer[,]” and

19 that “no witness testified affirmatively that the door was not locked.” In addition, he

20 contended that while the officer “blocked” the door or was “posted” at the door, the

                                              4
 1 “interrogating agent” used “aggressive and accusatory techniques.” Defendant’s

 2 choice of words was clearly intended to conjure up a mental image of “custodial

 3 interrogation” that successfully resulted in this case being placed on the general

 4 calendar.

 5   {9}    Contrary to the representation that the door was “blocked,” however, our review

 6 of the video recording of Defendant’s interview shows Defendant, Agent James

 7 Butterfield of the New Mexico State Police, and the Lynchburg police officer enter

 8 the room from the left of the camera. Throughout the interview, the Lynchburg officer

 9 is then intermittently visible in the video sitting to the right of the camera. It is clear

10 from the video that the door was never “blocked” as Defendant contends on appeal.

11 It is noteworthy that during the suppression hearing, defense counsel never argued that

12 the door was blocked but said only that the Lynchburg officer was “by the door.”

13   {10}   Further, Defendant’s own actions belie his assertion that he did not believe he

14 was free to leave. Within seconds of the start of the interview, Defendant engaged

15 Agent Butterfield in casual conversation. And within the first three minutes after

16 sitting down, when Agent Butterfield asked Defendant if he knew why he was at the

17 police station, Defendant replied, “My daughters being touched. . . . I thought I had

18 confessed and told enough people.”          Defendant was relaxed and forthcoming

19 throughout the interview with little prompting or input from the officers, describing

20 how sexually arousing he found it to touch his daughters and how he would “transfer

                                                5
 1 that touch” afterward when masturbating to online pornography. Indeed, the officers

 2 had to interrupt Defendant to ask their questions. The video clearly demonstrates that

 3 Defendant was never “pressed to confess.”

 4   {11}   The evidence also establishes that the physical location of the interview room

 5 did not prevent Defendant from leaving. There is no dispute that Defendant had to go

 6 through three doors to get inside the interview room. The first door leading into the

 7 lobby was locked because it was after regular business hours. A person with a key

 8 unlocked the exterior door, allowed Defendant into the lobby, and locked the door.

 9 Defendant was escorted from the lobby into the back part of the building through a

10 second door, which was locked from the lobby side. However, the door passing from

11 the other direction, from the back into the lobby, was not locked. Further, the third

12 door, the door to the interview room, did not have a lock and was not capable of being

13 locked. Accordingly, Defendant could have exited the interview room and walked

14 into the lobby without needing assistance from anyone. We acknowledge that,

15 because it was after 5:00 p.m., Defendant as well as the officers needed to ask

16 someone with a key to open the outside door. Nevertheless, even though the building

17 was locked, the interior doors were not. We conclude that Defendant was free to leave

18 the interview room at any time.

19 Totality of the Circumstances



                                               6
 1   {12}   Defendant raises a myriad of issues and asserts that the totality of the

 2 circumstances establish that he was subject to the equivalent of a custodial arrest. We

 3 have considered the objective issues and disagree. We address Defendant’s remaining

 4 arguments below.

 5   {13}   Defendant claims that he was in custody because he was not advised that he was

 6 free to end the interview at any time or that he could refuse to answer the officers’

 7 questions. This argument lacks merit. The district court found that Defendant was

 8 fully advised that he was not under arrest and he was free to leave. To the extent that

 9 Defendant argues that there was no testimony at the suppression hearing that he was

10 advised that he was free to leave, we note that, to the contrary, Agent Butterfield

11 testified at the preliminary hearing that he advised Defendant that he was free to leave.

12 More importantly, Defendant’s written motion to suppress itself clearly states, “The

13 New Mexico State Police Investigator advised Defendant that he was not under arrest

14 and was free to leave[.]”

15   {14}   Defendant further contends that the interrogation room was small and located

16 in “the bowels” of the police department, there were no windows in the interrogation

17 room, the door was closed and he believed the door was locked, two police officers

18 participated in the interview, and the interview was recorded. Again, Defendant’s

19 assertions are not entirely supported by the evidence. For example, our review of the

20 record establishes that there was a window in the door of the interrogation room and

                                               7
 1 that the door was not capable of being locked. When asked if he knew whether the

 2 door was locked, Defendant testified, “I didn’t know either way.” In any event, even

 3 if Defendant had believed that the door was locked, this belief was not reasonable

 4 because the door did not have a lock. See State v. Ketelson, 2011-NMSC-023, ¶ 9,

 5 150 N.M. 137, 257 P.3d 957 (stating that it is for the district court to resolve issues of

 6 credibility and the weight of the evidence on a motion to suppress). Morever, we have

 7 already concluded that Defendant was free to leave the interrogation room.

 8   {15}   Defendant also argues that his background rendered him more susceptible to

 9 police pressure and manipulation, and the officers exploited aspects of his religious

10 and moral background and his history in group counseling sessions in order to elicit

11 information.      We do not consider these subjective factors.               See Nieto,

12 2000-NMSC-031, ¶ 20 (“Custody is determined objectively, not from the subjective

13 perception of any of the members to the interview.”).

14   {16}   We are also not persuaded by Defendant’s assertion that the interview was

15 “lengthy” and lasted almost two hours with no breaks. We have previously held that

16 a two-hour interrogation did not constitute a custodial interrogation when the accused

17 drove to the police station in her own vehicle, was not placed in handcuffs or told that

18 she was under arrest, did not inform the officers that she was tired during the two-hour

19 interrogation, and was permitted to drive home after the interrogation. Bravo, 2006-

20 NMCA-019, ¶¶ 12-13. Like the facts in Bravo, here, Defendant drove himself to the

                                               8
 1 police department in his own vehicle, he was never placed in handcuffs, he was

 2 specifically told that he was not under arrest and free to leave, there is no indication

 3 that Defendant was tired or requested a break during the interrogation, and he was

 4 permitted to drive home after the interrogation.

 5   {17}   Finally, Defendant argues that he was treated as a suspect. However, Miranda

 6 warnings are not required simply because the person questioned is a suspect. See

 7 State v. Munoz, 1998-NMSC-048, ¶ 42, 126 N.M. 535, 972 P.2d 847 (“It is . . . true

 8 that [the d]efendant had become the focus of the police investigation, but this factor

 9 alone is not enough to trigger the need to give warnings.”). Defendant contends that,

10 because the officer confronted him with the evidence against him and urged him to

11 confess, the interrogation was necessarily custodial. While we recognize that such a

12 manner of questioning could weigh in favor of a finding that Defendant was in

13 custody, we note that the video does not support Defendant’s characterization of a

14 “confrontation.” Rather, the video is consistent with Defendant’s own description that

15 the officer “hinted he knew things” that Defendant had not mentioned.

16   {18}   Based on the totality of the circumstances in this case, we conclude that

17 Defendant was not subject to a restraint on his freedom of movement to a degree

18 associated with a formal arrest. Therefore, Defendant was not entitled to Miranda

19 warnings. The fact that Defendant voluntarily drove himself to the police station for

20 the interview, where he was informed that he was not under arrest and was free to

                                              9
 1 leave, are significant in determining that he was not in custody for purposes of

 2 Miranda. See Nieto, 2000-NMSC-031, ¶ 21 (holding that a suspect was not in

 3 custody when he “was asked and agreed to accompany police officers to the station,

 4 was free to leave or terminate the interview, and was provided transportation to and

 5 from the station,” even though the interrogation room was small and an officer sat

 6 between the suspect and the door); Munoz, 1998-NMSC-048, ¶ 43 (holding that a

 7 defendant was not in custody when he willingly went with police to be questioned,

 8 was not handcuffed or searched, was not interviewed in a locked space, and was taken

 9 back home when the interview was completed); but see Olivas, 2011-NMCA-030, ¶

10 12 (holding that a defendant was in custody and finding it significant that the officers

11 “never informed [the d]efendant that he was not under arrest or that he was free to

12 terminate the encounter at any time”).

13   {19}   To the extent that Defendant continues to rely upon Olivas, we reiterate that

14 Olivas is distinguishable. Here, unlike in Olivas, Defendant drove of his own accord

15 to the station, he was not handcuffed, and he was informed that he was not under

16 arrest and was free to leave. Accordingly, for the reasons stated in this Opinion, we

17 affirm the district court’s denial of Defendant’s motion to suppress.

18   {20}   IT IS SO ORDERED.

19                                          __________________________________
20                                          LINDA M. VANZI, Judge


                                              10
1 WE CONCUR:



2 _________________________________
3 CYNTHIA A. FRY, Judge



4 _________________________________
5 TIMOTHY L. GARCIA, Judge




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