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                                                    ADVANCE SHEET HEADNOTE
                                                                  May 11, 2020

                                    2020 CO 36

No. 20SA11, People v. Clark—Criminal Law— Custodial Interrogation —
Miranda Warnings.

      The People have filed this interlocutory appeal, contesting the trial court’s

order suppressing certain statements that the defendant made to law enforcement

during the execution of a search warrant at his home and prior to his formal arrest.

The People contend that the trial court erred in finding that the defendant was in

custody so as to trigger the requirements of Miranda v. Arizona, 348 U.S. 436, 478–

79 (1966), when he made the statements at issue.

      The supreme court agrees with the People. Accordingly, the supreme court

reverses the trial court’s suppression order and remands this case to that court for

further proceedings.
                 The Supreme Court of the State of Colorado
                 2 East 14th Avenue • Denver, Colorado 80203

                                 2020 CO 36

                      Supreme Court Case No. 20SA11
                  Interlocutory Appeal from the District Court
              La Plata County District Court Case No. 19CR486
                Honorable Suzanne Fairchild Carlson, Judge
________________________________________________________________________

                            Plaintiff-Appellant:

                     The People of the State of Colorado,

                                      v.

                            Defendant-Appellee:

                           Bradley Todd Clark.
________________________________________________________________________

                           Judgment Reversed
                                 en banc
                              May 11, 2020
________________________________________________________________________

Attorneys for Petitioner:
Christian Champagne, District Attorney
Sean Murray, Appellate Deputy District Attorney
Alexandra Herlong, Deputy District Attorney
      Durango, Colorado

Attorneys for Respondent:
Whitney and Schowalter
Katharine L. Whitney
Brian Schowalter
      Durango, Colorado

JUSTICE GABRIEL delivered the Opinion of the Court.
¶1    The People have filed this interlocutory appeal, contesting the trial court’s

order suppressing certain statements that defendant Bradley Todd Clark made to

law enforcement during the execution of a search warrant at his home and prior

to his formal arrest. The People contend that the trial court erred in finding that

Clark was in custody so as to trigger the requirements of Miranda v. Arizona,

384 U.S. 436, 478–79 (1966), when he made the statements at issue.

¶2    We agree with the People.         Accordingly, we reverse the trial court’s

suppression order and remand this case to that court for further proceedings

consistent with this opinion.

                        I. Facts and Procedural History

¶3    Shortly after 8:00 p.m. one evening, Durango firefighters were dispatched

to the City Market South grocery store in Durango to address a fire inside the store.

The firefighters quickly determined that the fire had been set intentionally, and

they requested assistance from the Durango Police Department. Officers from that

department arrived shortly thereafter.

¶4    Based on witness statements, the fact that the fire did not spread beyond the

tortilla chip section of aisle 7 of the store, and the fire marshal’s investigation, it

was determined that the fire originated in the tortilla chip section of aisle 7. The

fire marshal believed that the entire duration of the fire was two to three minutes.



                                          2
¶5    Due to the location of the fire and information allowing them to determine

when the fire began, a police officer and a detective watched surveillance footage

relating to the events surrounding the incident, in the hope of identifying a

suspect. Based on their review of the footage, the officer and the detective were

able to do so. Specifically, they pinpointed a male suspect who was alone in the

area of the fire for approximately forty-six seconds.       He left the area, and

thirty-four seconds later, a witness observed several bags of chips burning in that

location. The suspect then walked to one of the self-checkout lines and purchased

several items. From this transaction, the officer and the detective were able to

identify the man as Clark, and they were also able to obtain his address.

¶6    The next day, the detective who had reviewed the surveillance footage

obtained a search warrant for certain items located in Clark’s home, and that night,

at approximately 10:30 p.m., four officers from the Durango Police Department

went to Clark’s home to execute the warrant. Three of the officers were wearing

what was described as “detective” clothes (presumably, plain clothes), and the

fourth was in uniform.

¶7    As the officers approached Clark’s house and were about to knock on the

door, one of the officers thought that she saw the lights go on and the front door

open and close. The officers proceeded to knock, and they identified themselves

as Durango police officers. Clark opened the door, and the police officers advised
                                         3
him that they were there with a search warrant to search for items relating to the

incident the previous day at City Market.       One of the detectives, Detective

Newman, then provided Clark with a copy of the warrant.

¶8    Notwithstanding the fact that an officer had just seen a light on and watched

the front door open and close, Clark initially claimed that he had been in bed.

Detective Newman then asked Clark whether he had a wife and children at home.

Clark responded that he did and that they were upstairs sleeping. Detective

Newman proceeded to advise Clark, “I’d like to talk to you about [the items in the

search warrant]. If you’re willing to talk about those things, that would be great.”

Clark agreed to help the detectives locate the items listed in the warrant, although

he repeatedly asked Detective Newman, “What things?” and the detective

repeatedly pointed out the things listed in the warrant.

¶9    Detective Newman then asked Clark if he had been at City Market the day

before, and Clark responded that he had been there three times, the last of which

was at about 7:30 p.m. The detective advised Clark that he was most interested in

this last trip, and he repeatedly asked Clark if Clark would be willing to talk to

him. Clark never responded to this question, nor did he respond directly to other

questions asked of him. Instead, he continually asked the detective why the

officers had come to his home at 10:30 p.m. on a Sunday. Detective Newman

patiently responded to Clark’s questions and continued to try to engage Clark
                                         4
about the incident. Clark, however, deflected the detective’s questions, stating

repeatedly that he did not know why they had come to his home, that he did not

know anything about “the incident,” and that the police officers’ presence in his

home was “insane.”

¶10   After fencing with Clark like this for several minutes, Detective Newman

told Clark, “So, here’s the deal. I wanna . . . . I’m gonna take you outside, okay?

We’re going to go outside for a minute, and we’re gonna chat so these guys can do

the job searching for stuff, okay?” Clark and the detective then talked for another

minute or so about whether Clark would be willing to go outside with the

detective, as well as about the items listed in the search warrant, about which Clark

continued to profess ignorance. Finally, the deputy police chief, who was also

present, stated, “You’re not going to be arrested, we’re not arresting you outside.

We’re stepping outside so we’re not talking in front of your family.” Upon hearing

that, Clark agreed to go outside stating, “Totally man, I have kids.” Clark then

asked if he could put his shoes on before going outside, but he ultimately went

outside barefoot because none of the shoes by the door were his.

¶11   Once outside, Clark initially refused to talk more about his third trip to City

Market, and he denied knowing anything about the incident. He eventually

admitted, however, that he was at City Market when the fire alarms went off,

although he continued to deny any knowledge of what triggered the alarms. Clark
                                         5
then stated that he knew that he did not have to say anything more to the police

without an attorney present, which Detective Newman confirmed, but Clark kept

talking, and he continued to say that he did not know why the police were at his

home.

¶12     Then, notwithstanding his prior statement that he knew nothing about the

incident, Clark said that he knew about the fire because he had read about it on

the internet and that he and his wife had “joked about it.” At this point, having

heard Clark contradict himself a number of times, Detective Newman told Clark

that there were video cameras in the store and that based on the footage, Clark

was the suspect.

¶13     After Clark continued to fence with Detective Newman, the detective finally

told Clark that he “was not going to play this game” and advised Clark that he

was under arrest for the arson at City Market. Clark responded, with apparent

surprise, “What? Are you kidding me?” and again said, “I mean this is insane, it’s

insane.” Detective Newman instructed another officer who had been standing in

the middle of the street with one of the police cars to handcuff Clark. Clark

continued to ask whether the police were kidding, even wondering if “this is not

a joke for [his] students?” (Clark was a professor at Fort Lewis College at the time.)

The officer then placed Clark in the police car, and Detective Newman offered to

get him sweats, socks, and shoes and allowed him to speak with his wife.
                                          6
¶14   At all times in the course of this interaction, Detective Newman was

courteous, respectful, calm, and professional, and he spoke with Clark in a

conversational tone. At no time did Detective Newman raise his voice, although

an audio recording of the entire interaction reflects some eventual frustration with

what the detective viewed as a “game” that Clark was playing with him.

¶15   The People subsequently charged Clark with criminal attempt to commit

first degree arson, second degree arson, and criminal mischief. Clark pleaded not

guilty and, as pertinent here, moved to suppress all of the statements that he made

during the above-described encounter. He argued that these statements were

made in the course of a custodial interrogation without the benefit of Miranda

warnings and that all of such statements should therefore be suppressed.

¶16   The trial court subsequently conducted an evidentiary hearing on Clark’s

motion. At this hearing, Detective Newman testified that on the evening in

question, he and three other officers went to Clark’s house to execute the search

warrant. They found Clark barefoot and in boxer shorts and a sweatshirt. After

speaking with Clark inside the house, Detective Newman asked Clark to go

outside, which he did, without putting on any more clothes. While Detective

Newman spoke with Clark outside, the other officers searched the home.

Detective Newman testified that he did not place Clark in handcuffs while the two

were talking, nor did he put any other kind of restraints on Clark or otherwise
                                         7
limit Clark’s movement. The detective further testified that he did not provide

Clark with a Miranda advisement, and he stated that after he placed Clark under

arrest, he did not question Clark further.

¶17   In addition to the foregoing, the People introduced into evidence the

above-referenced audio recording of the entire encounter with Clark.

¶18   At the conclusion of the evidence, the court ruled from the bench that Clark

was in custody from the time he went outside with Detective Newman and that

Miranda warnings were therefore required at that point.        In support of this

conclusion, the court found that although Detective Newman was “pretty low

key” and conversational and did not “get loud” throughout the encounter, and

although all of Clark’s statements were voluntary, (1) Clark was directed to go

outside, (2) he was in his underwear and had no shoes on when he was so directed,

(3) this encounter occurred late at night, and (4) the tone of the encounter became

a “little bit confrontational” once Clark went outside. Based on these facts, the

court concluded that “no reasonable person would think that they had not been

deprived of their freedom at the point where they would have to go outside in

their underwear without their shoes on.” Accordingly, the court found that

“Miranda was required at the time that [Clark] went outside, when he was told he

was going outside. . . . [A]t that point a reasonable person would think that they

had been deprived of their freedom of action to the degree associated with a formal
                                         8
arrest based on all of the factors.” The court thus granted in part Clark’s motion

to suppress and suppressed any statements that Clark made after he went outside

with Detective Newman.

¶19   The People then brought this interlocutory appeal challenging the court’s

suppression order.

                                   II. Analysis

¶20   We begin by addressing the applicable standard of review. We then discuss

the pertinent principles of law. We end by applying these principles to the record

before us, and we conclude that Clark was not in custody when he made the

statements at issue, all of which were made while Clark spoke with Detective

Newman outside and prior to Clark’s formal arrest. Accordingly, we further

conclude that the trial court erred in suppressing those statements as the product

of a custodial interrogation conducted without the requisite Miranda warnings.

                             A. Standard of Review
¶21   A trial court’s determination of whether a defendant was in custody when

he or she was interrogated presents a mixed question of law and fact. People v.

Davis, 2019 CO 84, ¶ 18, 449 P.3d 732, 738. We defer to the trial court’s findings of

historical fact and credibility as long as those findings are supported by competent

evidence in the record. Id. We review de novo, however, the legal question of

whether the facts, when taken together, establish that the suspect was in custody

                                         9
at the time he or she was interrogated. People v. Pleshakov, 2013 CO 18, ¶ 16,

298 P.3d 228, 232.

¶22   In reviewing a trial court’s determination, our analysis is not limited to the

factual findings on which the trial court based its order. Davis, ¶ 18, 449 P.3d at

738. Rather, we may also consider any undisputed facts in the record. Id.

¶23   In addition,

      “[W]here the statements sought to be suppressed are audio- and
      video-recorded, and there are no disputed facts outside the recording
      controlling the issue of suppression, we are in a similar position as the
      trial court to determine whether the statements should be
      suppressed.” Thus, we may undertake an independent review of the
      audio or video recording to determine whether the statements were
      properly suppressed in light of the controlling law.

People v. Kutlak, 2016 CO 1, ¶ 13, 364 P.3d 199, 203 (quoting People v. Madrid,

179 P.3d 1010, 1014 (Colo. 2008)).

                 B. Law Relating to Custodial Interrogations

¶24   “The Fifth Amendment to the United States Constitution guarantees that ‘no

person . . . shall be compelled in any criminal case to be a witness against himself.’”

Pleshakov, ¶ 19, 298 P.3d at 233 (quoting U.S. Const. amend. V). A person subjected

to a custodial interrogation is afforded certain procedural safeguards to secure this

Fifth Amendment privilege. Miranda, 384 U.S. at 478–79. Specifically, the state

may not introduce in its case-in-chief statements made by a defendant during a

custodial interrogation unless the state establishes that the defendant was advised
                                          10
that (1) the defendant has the right to remain silent; (2) anything that the defendant

says can be used against him or her in a court of law; (3) the defendant has the

right to the presence of an attorney; and (4) if the defendant cannot afford an

attorney, then one will be appointed for him or her prior to questioning, if desired.

Id. at 479.

¶25    A person is in custody for Miranda purposes when he or she “has been

formally arrested or if, under the totality of the circumstances, a reasonable person

in the suspect’s position would have felt that [his or] her freedom of action had

been curtailed to a degree associated with formal arrest.” People v. Garcia, 2017 CO

106, ¶ 20, 409 P.3d 312, 317.

¶26    “A Miranda custody assessment considers ‘the objective circumstances of

the interrogation, not . . . the subjective views harbored by either the interrogating

officers or the person being questioned.’” Davis, ¶ 19, 449 P.3d at 738 (quoting

Stansbury v. California, 511 U.S. 318, 323 (1994)). “In making this determination, a

court must consider the totality of the circumstances under which the

interrogation was conducted.” Mumford v. People, 2012 CO 2, ¶ 13, 270 P.3d 953,

957. The factors that the court should consider include:

       (1) the time, place, and purpose of the encounter; (2) the persons
       present during the interrogation; (3) the words spoken by the officer
       to the defendant; (4) the officer’s tone of voice and general demeanor;
       (5) the length and mood of the interrogation; (6) whether any
       limitation of movement or other form of restraint was placed on the
                                         11
      defendant during the interrogation; (7) the officer’s response to any
      questions asked by the defendant; (8) whether directions were given
      to the defendant during the interrogation; and (9) the defendant’s
      verbal or nonverbal response to such directions.

People v. Matheny, 46 P.3d 453, 465–66 (Colo. 2002) (citation omitted).

¶27   This list is not exhaustive, and therefore, no single factor is determinative.

Mumford, ¶ 14, 270 P.3d at 957.

                                  C. Application

¶28   Applying these principles to the case at hand, we conclude that, under the

totality of the circumstances, Clark was not in custody for Miranda purposes at the

time he made the statements at issue, all of which were made while Clark spoke

with Detective Newman outside Clark’s home and prior to his formal arrest. We

reach this conclusion for a number of reasons.

¶29   First, the encounter at issue occurred at Clark’s home, with the bulk of the

conversation occurring inside the house and a portion of it occurring just outside

Clark’s front door. We have said that such facts weigh against a finding of

custody. See Garcia, ¶ 21, 409 P.3d at 317 (“When the interaction occurs at the

person’s home or at a familiar location, it weighs against a finding of custody. . . .

We have also recognized that the area just outside a familiar residence can be a

neutral location.”).




                                         12
¶30   Second, the encounter outside Clark’s home was relatively brief, lasting

approximately six minutes, and we have opined that when an encounter like the

one at issue was brief, that fact weighs against a finding of custody. See People v.

Klinck, 259 P.3d 489, 494 (Colo. 2011) (concluding that the defendant was not in

custody when, among other things, the encounter lasted less than ten minutes); cf.

People v. Minjarez, 81 P.3d 348, 356 (Colo. 2003) (concluding that the defendant was

in custody when, among other things, the interview lasted forty-five minutes).

¶31   Third, Detective Newman’s conversational tone and his generally

non-confrontational and open-ended questions throughout his encounter with

Clark also support a finding that Clark was not in custody. See, e.g., Klinck,

259 P.3d at 494 (relying on a deputy’s use of a conversational tone and

non-confrontational, open-ended questions to conclude that the defendant was

not in custody); People v. Cowart, 244 P.3d 1199, 1205 (Colo. 2010) (stating that the

officer’s conversational tone and the fact that he did not raise his voice convinced

the court that the defendant was not in custody).

¶32   Fourth, as noted above, the deputy police chief on scene specifically told

Clark, “You’re not going to be arrested, we’re not arresting you outside. We’re

stepping outside so we’re not talking in front of your family,” to which Clark

replied, “Totally man, I have kids.” These facts, too, weigh against a finding that

Clark was in custody, and they tend to show that Clark went outside of his own
                                         13
volition in order to speak with the police out of earshot of his children. See, e.g.,

Matheny, 46 P.3d at 467 (opining that statements to the defendant that he was not

under arrest and that he was free to go at any time weighed against a finding of

custody).

¶33   Fifth, although four officers were on site, only Detective Newman asked

Clark any questions, and, at least until Clark was arrested, Clark was not

handcuffed or restrained in any way. We have previously relied on the fact that

only a single officer spoke with a suspect in concluding that the suspect was not

in custody during the encounter at issue. See, e.g., People v. Figueroa-Ortega, 2012

CO 51, ¶ 9, 283 P.3d 691, 693 (perceiving as indicative of a consensual encounter

and not custody the fact that the officer who had conducted the interview at issue

did so alone and in civilian clothes); see also Pleshakov, ¶ 30, 298 P.3d at 235

(concluding that the defendant was not in custody when, among other things, four

officers were at the scene but only one spoke with the defendant). Likewise, we

have relied on the absence of handcuffs or other restraints as suggesting that the

suspect was not in custody. See, e.g., Pleshakov, ¶ 30, 298 P.3d at 235 (relying on the

fact that neither the defendant nor his companions were handcuffed at the time

the defendant made incriminating statements in concluding that the defendant

was not in custody); Figueroa-Ortega, ¶ 9, 283 P.3d at 693 (relying on the fact that

the defendant’s movement was in no way restrained in concluding that the
                                          14
defendant was not in custody); Cowart, 244 P.3d at 1204 (noting that the lack of

physical restraint suggested that the defendant was not in custody).

¶34   Finally, Clark’s responses to Detective Newman while the detective was

speaking with him outside his home support a finding that Clark was not in

custody. We have observed that “indifferent” reactions to the police tend to

suggest that a suspect is not “succumbing to any allegedly coercive police

influences.”     Garcia, ¶ 36, 409 P.3d at 319.   Here, in response to Detective

Newman’s questions about Clark’s trip to City Market, Clark repeatedly stated

that he had no knowledge of the incident at issue, and he questioned why the

police were speaking with him, given that other people were in the store that day.

At no point did Clark confess to committing the arson at City Market, including

after being told that the police saw him on the store’s surveillance video. To the

contrary, throughout the encounter, Clark generally deflected questions from

Detective Newman while repeatedly asking what items the police were seeking

and expressing his lack of understanding as to why the police were there and how

“insane” it all was. In our view, this conduct, which Detective Newman ultimately

perceived as gamesmanship, does not suggest a person who believed that he was

in custody or who had in any way succumbed to any sort of coercive police

interrogation.



                                         15
¶35   This is not to say that none of the above-quoted Matheny factors could

arguably support a finding that Clark was in custody. As the trial court observed,

the fact that the police came to Clark’s home between 10:30 and 11:00 p.m. on a

Sunday night tends to support a finding of custody, as does the fact that Detective

Newman effectively directed Clark to go outside with him, notwithstanding that

Clark was barefoot and wearing only a sweatshirt and underwear at the time. See

Garcia, ¶ 35, 409 P.3d at 319 (noting that a direction given by an officer to a suspect

is one factor that weighs in favor of a finding of custody); Matheny, 46 P.3d at 465

(noting that the time of an encounter is relevant to the custody determination).

¶36   Nonetheless, as set forth above, in deciding whether Clark was in custody,

we must consider the totality of the circumstances. Mumford, ¶ 13, 270 P.3d at 957.

And for the reasons discussed above, the totality of the circumstances here, as well

as our own review of the audio recording of the encounter at issue, convinces us

that Clark was not in custody when Detective Newman spoke with him just

outside his front door.

                                  III. Conclusion

¶37   For these reasons, we conclude that Clark was not in custody for Miranda

purposes when Detective Newman questioned him just outside his home

regarding the fire that had occurred at City Market the day before. Accordingly,



                                          16
we conclude that the trial court erred in suppressing the statements that Clark

made at that time.

¶38   We therefore reverse the trial court’s suppression order and remand this

case to that court for further proceedings consistent with this opinion.




                                        17
