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                  THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________


Hillsborough-southern judicial district
No. 2017-0599


                       THE STATE OF NEW HAMPSHIRE

                                          v.

                              ABHISHEK SACHDEV

                         Argued: September 27, 2018
                      Opinion Issued: November 28, 2018

      Gordon J. MacDonald, attorney general (Stephen D. Fuller, senior
assistant attorney general, on the brief and orally), for the State.


      Shaheen & Gordon, P.A., of Concord (James D. Rosenberg on the brief
and orally), for the defendant.

       DONOVAN, J. Following a jury trial in Superior Court (Temple, J.), the
defendant, Abhishek Sachdev, was convicted on two counts of aggravated
felonious sexual assault, see RSA 632-A:2, I(f), (m) (Supp. 2017), and one count
of simple assault, see RSA 631:2-a, I(a) (2016). On appeal, the defendant
argues that the trial court erred when it denied his motion to suppress upon
finding that: (1) he was not in custody for Miranda purposes when he was
questioned by detectives about the alleged assault, see Miranda v. Arizona, 384
U.S. 436 (1966); and (2) his consent to search the store and his person were
“voluntary and free of duress and coercion.” We affirm.
       The following facts are drawn from the trial court’s order. In July 2016,
K.L. reported to Detective Lombardi of the Nashua Police Department that
someone she described “as a thin, darker skin man named ‘Abi’” had sexually
assaulted her inside of a new wireless store in Nashua. On July 13, at
approximately 4:45 p.m., Lombardi and his colleague, Detective DiTullio, went
to the store. They wore plain clothes with their badges around their necks and
their guns displayed on their hips. Even though the store was not yet open to
the public, the detectives were able to enter through the main entrance. The
detectives informed the defendant and another man, Diego Gomez, that they
were investigating a female’s complaint about the prior night, and asked if they
would be willing to give statements at the police station “voluntarily.” The
defendant and Gomez agreed. The conversation “was cordial, polite, and short,
lasting five minutes.”

       All four men then left the store and Gomez locked the doors. Lombardi
suggested that the defendant and Gomez take separate vehicles in case one of
them finished his interview early. A patrol officer then arrived to secure both
entrances to ensure that no one entered the store in their absence. The
defendant and Gomez drove to the police station in their own vehicles and the
detectives drove in an unmarked cruiser. The four men entered the station
through the front lobby. Both Gomez and the defendant were signed in as
visitors at 5:15 p.m. The detectives did not take any items from the defendant,
such as his keys or cell phone.

      After signing in the two men, the detectives brought them to a waiting
area in the detectives’ bureau located on the second floor. The detectives
decided to first interview Gomez and asked the defendant to remain in the
waiting room. The defendant agreed. The detectives told the defendant to let
them know if he needed anything during the wait. The defendant was alone
and unsupervised and was not restrained in any manner while in the waiting
area. The door to the exit remained unlocked and the defendant could have left
at any time without the assistance of the detectives or any other officer.

       The detectives interviewed Gomez for approximately twenty-five minutes,
after which Lombardi met the defendant in the waiting room and brought him
to a small interview room. The room contained a table and three chairs.
Lombardi gave the defendant a “victim/witness background sheet” and asked
him to complete it. Lombardi then left the room.

       Thereafter, both DiTullio and Lombardi entered the room, and they
began interviewing the defendant at 5:52 p.m. The interview was audio and
video recorded. At the beginning of the interview, Lombardi told the defendant
the following:




                                       2
       No one forced you to come in here, right? You’re not under arrest
       right now. . . . [T]hat door is shut just for our privacy. It’s not
       locked. If at any time you don’t want to talk to us, you just let us
       know and we will bring you back outside and you can get in your
       car and leave.

Before the questioning began, the defendant received a call on his cell phone.
The defendant answered the phone and had a brief conversation with the
caller. After the call, the defendant completed the “victim/witness background
sheet.” The detectives then began to question the defendant about the night of
July 12. The trial court found that the tone of the interview was
conversational, the detectives did not raise their voices, and the defendant gave
long narrative responses rather than “yes” or “no” answers.

      During the interview, the defendant acknowledged that he met K.L. at
the wireless store the previous night. He stated that after he saw her walking
barefoot near the store, he asked her if she wanted help. She agreed to go into
the store. The defendant, K.L., and Gomez then drank together in the store.
The defendant indicated that he left the store to buy more beer and a package
of condoms, in case something might “happen.” The defendant represented
that when he returned, the three of them continued to drink and, at some
point, K.L. vomited and fell asleep.

      The defendant denied that anything sexual happened with K.L. He
stated that he left the store when his wife called him around 12:30, and when
he did, K.L. was outside on the sidewalk with Gomez. The defendant also
reported that K.L. tried kissing him but he did not reciprocate because she was
vomiting and was too impaired.

     Approximately thirteen minutes into the interview, the following
exchange occurred, as recited in the trial court’s order:1

       Lombardi:  And what happened after she was kissing you?
       Defendant: Nothing.
       Lombardi:  That was it? You’re positive?
       Defendant: Yes.
       Lombardi:  Well, what if I told you that I had some evidence to
                  suggest otherwise? Would you say that that was
                  inaccurate evidence? Like I said, I just want the truth
                  from you. Okay?
       Defendant: I am telling the truth.

1 Although the defendant provided us with a transcript of the interview, we rely upon the trial
court’s order for the substance of the interview because the trial court’s recitation of the interview
is based upon its review of the video recording of the interview, rather than the transcript of the
interview, which was produced after the suppression hearing.


                                                  3
Lombardi:  She’s an adult. She’s not a kid or anything like that,
           okay? You know, it is what it is. I just want you to be
           truthful with me.
Defendant: I have a wife. You have to understand that.
Lombardi: We’re not going to talk to your wife. This is a private
           conversation just between us, okay? No one outside of
           this room is going to hear this. I just want you to be
           truthful with me. If . . . what happens between you
           and your wife, that’s your own thing.
Defendant: Can I consult a lawyer by any chance?
Lombardi: If you want to talk to a lawyer, . . . that’s fine. Okay,
           I’m just trying to talk to you man to man. Um, let me
           lay out what we have right here, okay. Basically, um,
           your store — we’re going to need to take some pictures
           of the inside of it. We’re gonna need to look through it
           for some beer cans and some things like that. [Gomez]
           told us that she was bleeding in there and that he had
           like cleaned her up with some [inaudible]. We want to
           be able to get those things. So there is a couple of
           ways for us to go about doing that. Okay. We can get
           a search warrant or we can get consent from you. It’s
           entirely . . .
Defendant: You can go ahead. You can do that.
DiTullio:  Let me go get the consent form.

[Detective DiTullio leaves the room]

Lombardi:   All right, so what we are going to do is review a
            consent to search form. As I said, we are going to go
            in there, we’re going to take pictures, we’re going to get
            those items that we need to get, and then you can
            have your store back. Okay. Um. All right. So.

[Detective DiTullio returns with form]

Defendant: I mean what happened to her? Is she in trouble?
Lombardi: She’s not in trouble. Like you said, she had some cuts
           and scrapes on her. We were trying to figure out
           where those came from. That kind of stuff.
Defendant: [inaudible] [W]e feel bad because she was walking
           barefoot. That’s why we took her in. I’ll be helping
           you. You can go in and take a look. Whatever you
           want. So but tomorrow can we do the sales over there
           or no?




                                 4
Lombardi:   Assuming that we can just go in there and take
            pictures . . . As soon as we are done [inaudible as they
            talk over each other]

...

Lombardi:  All right. This is basically our standard consent to
           search form. Okay, so we have everyone fill this out
           when we are searching something. So I’ll read it and
           then you can read it with me as I am reading it to you.
           . . . So “I . . . have been informed of my constitutional
           right not to have a search made of my . . . premise.”
Defendant: Not to have?
Lombardi: Yes. So you have the right to not let us do this, and
           have us get a search warrant, which means we’ll close
           down your business until . . .
Defendant: No, you can go ahead . . .
Lombardi: So you have the right to not let us take these pictures
           and not search your building. Okay? You have that
           right. . . . Hold on one second, let me start again here
           . . . So I, your name, have been informed of my
           constitutional right not to have a search made of my
           premise um without a search warrant and of my right
           to refuse to consent to . . . such a search . . . do
           hereby authorize the below listed individuals, who
           have identified themselves to me as law enforcement
           officers, to conduct a complete search of my premise
           situated at your business 83 Main Street. They are
           also authorized to remove any letters, papers,
           materials or other property which they may desire. I
           understand that anything discovered may be used
           against me in a criminal proceeding. This consent to
           search has been given by me voluntarily without
           threats or promises of any kind. Okay, so I’m not
           threatening you, I’m not telling you that I’m going to
           do anything that I’m not going to do. . . . Do you have
           any questions about it first of all?
Defendant: Nope.
Lombardi: If you agree to that, you can sign right there and then
           date and time.

[Defendant signs form]

Lombardi:  All right. And then. You said nothing sexual
           happened with you and her, right? Nothing like that.
Defendant: [inaudible]


                                 5
      Lombardi:    I was going to fill out another one of these and ask for
                   buccal swabs, which is basically I’ll take a little Q-tip
                   and rub the inside of your mouth to get a DNA sample.
                   Are you okay with consenting to that?
      DiTullio:    It’s two Q-tips, they’re about this long. We’ll rub one
                   on the inside of your cheek and one on the other side
                   of the cheek. And that’s it. . . .
      Lombardi:    Like I said, it’s to get a . . . some of your DNA.
      Defendant:   Why’s that?
      Lombardi:    You said that there was no sexual assault . . .
      Defendant:   [inaudible] consulting a lawyer?
      Lombardi:    Well that’s fine if you want to consult a lawyer about
                   that. Like I said I’m not going to force you to do that.
                   I’m not going to make you any promises, but the
                   buccal swabs are to take DNA so we can compare
                   them against any other DNA that may or may not have
                   been found. It’s entirely up to you. Same thing with
                   this one, I’m not going to force you to do anything you
                   don’t want to.
      Defendant:   I mean, you can go ahead on that one [referring to the
                   search of the store].
      Lombardi:    Okay, but you don’t want to sign the consent for the
                   swabs for your DNA?
      Defendant:   Not right now.
      Lombardi:    Not right now?
      Defendant:   No.
      Lombardi:    Okay. All right. Fair enough. All right, so with that
                   being said, we’ll run out there. We’ll take
                   photographs, we’ll go look through there get that all
                   done and um that way you can have your business
                   back up and running and do what you have to do,
                   okay?

The recording ends shortly thereafter at 6:11 p.m. Both detectives then left the
room to review the information they had gathered and the defendant remained
inside the interview room. The detectives decided that they would apply for a
search warrant to obtain buccal swabs, penile swabs, pubic hairs, fingernail
clippings, and some of the defendant’s clothing.

      After approximately five minutes, Lombardi went back into the interview
room to inform the defendant about the next steps in the investigation.
Lombardi explained that they were going to apply for a search warrant to
obtain the buccal swabs and other bodily samples. Lombardi explained the
search warrant process and again asked the defendant for his consent to
obtain these samples. During this brief discussion, the defendant reconsidered
his decision and agreed to consent to the search of his person. This interaction


                                        6
was not recorded. However, the trial court found that Lombardi credibly
testified that he did not make any threats or promises to the defendant.

       The defendant then executed a “consent to search” form similar to the
form by which he consented to a search of the store. Lombardi read it aloud
and asked the defendant if he had any questions. After explaining what was
being requested of the defendant — “buccal swabs, clothing, undergarments,
swabs of fingers, penile swabs [and] pubic combing” — the defendant initialed
the form next to the list of items and signed the bottom of the form at 6:30 p.m.
He did not have any questions during the process.

      Lombardi obtained the buccal swabs from the defendant at the station
and then the detectives brought him to the hospital to collect the additional
samples. Afterwards, the detectives brought the defendant back to the station.
The detectives did not ask the defendant any questions during the drive to and
from the hospital. At the station, Lombardi thanked the defendant for his
cooperation and gave the defendant his business card. The defendant then got
into his vehicle and left the station. The detectives obtained an arrest warrant
one week later and subsequently arrested the defendant on July 22, 2016.

       Prior to trial, the defendant moved to suppress “any and all evidence”
obtained after he allegedly “invoked his right to counsel,” or, in the alternative,
to suppress evidence obtained during the warrantless searches of the store and
his person because his consent to both of those searches was not free,
knowing, and voluntary. Following an evidentiary hearing, the trial court
concluded “that the defendant was not in custody at any point during the
interview and therefore was not entitled to Miranda protections.” Also, the
court found that, because the defendant signed the two consent forms, was not
in custody, and was not threatened or coerced in any way, the “State has
shown by a preponderance of the evidence that his consent to search the store
and his person was voluntary and free of duress and coercion.” The jury
thereafter convicted the defendant. This appeal followed.

       On appeal, the defendant argues that the trial court erred when it found
that: (1) he was not in custody for Miranda purposes when he was questioned
by the detectives about the alleged assault; and (2) his consent to the searches
of the store and his person was free and voluntary. The defendant cites both
the State and Federal Constitutions in support of his arguments that the trial
court erred when it denied his motion to suppress. See N.H. CONST. pt. I,
arts. 15, 19; U.S. CONST. amends. IV-VI, XIV. We first address the defendant’s
claims under the State Constitution and rely upon federal law only to aid in
our analysis. State v. Ball, 124 N.H. 226, 231-33 (1983).

      We begin by addressing the defendant’s argument that the trial court
erred in finding that he was not in custody for Miranda purposes. Before a
defendant’s responses made during a custodial interrogation may be used as


                                         7
evidence against him, the State must prove, beyond a reasonable doubt, that it
did not violate his constitutional rights under Miranda. State v. McKenna, 166
N.H. 671, 676 (2014). For Miranda warnings to be required a defendant must
be subjected to custodial interrogation by the police. See State v. Hammond,
144 N.H. 401, 403 (1999). Therefore, as a general rule, two conditions must be
met before Miranda warnings are required: (1) the suspect must be “in
custody”; and (2) he must be subject to “interrogation.” In re B.C., 167 N.H.
338, 342 (2015). In this appeal, the only issue is whether the trial court erred
in finding that the defendant was not in custody.

       “Custody entitling a defendant to Miranda protections requires formal
arrest or restraint on freedom of movement of the degree associated with formal
arrest.” McKenna, 166 N.H. at 676 (quotation omitted). “In the absence of
formal arrest, we must determine whether a suspect’s freedom of movement
was sufficiently curtailed by considering how a reasonable person in the
suspect’s position would have understood the situation.” Id. at 676-77
(quotation omitted). To determine whether a reasonable person in the
defendant’s position would believe himself in custody, the trial court should
consider the totality of the circumstances of the encounter. Id. at 677.
“Factors to be considered include, but are not limited to: the number of officers
present, the degree to which the suspect was physically restrained, the
interview’s duration and character, and the suspect’s familiarity with his
surroundings.” In re E.G., 171 N.H. ___, ___ (decided August 17, 2018) (slip op.
at 5) (quotation omitted).

      On appeal, we recognize that the custody determination “is a law-
dominated mixed question in which ‘the crucial question entails an evaluation
made after [the] determination of [the historical facts]: if encountered by a
“reasonable person,” would the identified circumstances add up to custody as
defined in Miranda?’” State v. Ford, 144 N.H. 57, 62-63 (1999) (quoting
Thompson v. Keohane, 516 U.S. 99, 113 (1995)). “The trier of fact is not ‘in an
appreciably better position’ than we to answer that question.” Id. at 63
(quoting Thompson, 516 U.S. at 114-15). Accordingly, although we will not
overturn the trial court’s findings of historical facts unless they are contrary to
the manifest weight of the evidence, we review the ultimate determination of
custody de novo. Id.; In re E.G., 171 N.H. at ___ (slip op. at 5).

       Here, the trial court’s findings of historical facts relating to custody are
not in dispute. Accordingly, we accept and rely upon the historical facts as set
forth in the trial court’s suppression order. Moreover, we note that the
appellate record does not contain the videotape of the defendant’s interview
with the detectives, which the trial court had the benefit of considering before
issuing its order. See Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004)
(burden on appealing party to provide court with record sufficient to decide
issues on appeal); see also Sup. Ct. R. 13(3) (we will not ordinarily review any
part of the record that has not been provided to us in an appendix by a party or


                                         8
transmitted to us by the trial court or administrative agency). Therefore, we
must assume that the evidence in the record was sufficient to support the trial
court’s factual findings as they pertain to the interview, i.e., the detectives’
tone, demeanor, and physical presence. See Bean, 151 N.H. at 250.

       In its order, the trial court found the following factors weighed against a
finding of custody: (1) the defendant agreed to go to the police station
voluntarily and drove there himself; (2) the defendant entered through the front
lobby of the station and signed in as a visitor; (3) only two detectives were
present throughout the evening; (4) the detectives were in plain clothes; (5)
although armed, the detectives did not brandish their weapons; (6) “[m]ost
importantly, at the start of the interview, the defendant was notified that his
presence was voluntary and . . . he was not under arrest,” and “that he could
stop the interview at any time and . . . the defendant would be permitted to
leave”; (7) the detectives “presented a relaxed demeanor and were cordial
toward [the] defendant”; and (8) the interview was short, lasting less than
twenty minutes. While the trial court acknowledged that there are some facts
suggesting that the defendant was in custody — the interview room was small
and the defendant sat in the chair furthest from the door, the detectives
initiated contact with the defendant at his place of business, and the
questioning took place at the police station — when considering the “totality of
the circumstances of the encounter,” State v. Jennings, 155 N.H. 768, 772
(2007) (quotation omitted), the court found that the defendant was not in
custody at any point during the interview.

       The defendant argues that the trial court overlooked the following facts in
its custody analysis: (1) the detectives did not honor their promise to end the
interview even though the defendant twice asked to consult with counsel; (2)
the entire interaction between the officers and the defendant lasted over two
and a half hours; (3) the detectives’ questions were accusatory; (4) two
detectives initiated contact with the defendant at his place of business, invited
him to the police station, and left a uniformed officer to guard the defendant’s
place of business; and (5) the two officers had badges around their necks and
guns at their side. We address the defendant’s argument as to each fact in
turn.

       First, the defendant argues that when the trial court credited Lombardi
for informing the defendant that he could terminate the questioning and leave
at any time, the trial court failed to consider the fact that the detectives did not
honor this promise when the defendant twice asked for the assistance of
counsel during the interview. Essentially, the defendant asserts that when he
asked to consult with an attorney this question served as a request to end the
interview. The defendant contends, therefore, that we should not give as much
weight to the “demonstrably superficial warning” the detectives gave to the
defendant here as we have in prior cases. We disagree.



                                         9
       We have previously held that whether a suspect is informed that he or
she is free to terminate the interrogation at any time is a significant factor in
our custody analysis. See McKenna, 166 N.H. at 680; State v. Locke, 149 N.H.
1, 7 (2002) (“Given the repeated advice that he was free to leave, we conclude
that a reasonable person in the defendant’s position would not believe he was
restrained to the degree associated with formal arrest.”); State v. Johnson, 140
N.H. 573, 578 (1995) (finding no custody, based, in part, upon fact that trooper
informed defendant he was free to leave). We have also noted that a statement
to a suspect that he is not under arrest generally weighs against a finding of
custody. See McKenna, 166 N.H. at 679; Hammond, 144 N.H. at 404 (finding
no custody, based, in part, upon fact that officers informed the defendant
several times that he was not under arrest and that he was free to leave at any
time).

      As an initial matter, whether the detectives intended to honor their
promise to end the interview at the time they offered it is not the focus of this
inquiry. We need not examine the subjective intent of the detectives; rather, we
conduct an objective analysis to determine whether a reasonable person would
have believed that he was restrained to the degree associated with formal
arrest. See McKenna, 166 N.H. at 676-77. Thus, to the extent that the
defendant asserts that the detectives never intended to permit him to terminate
the interview, this claim is irrelevant to our analysis.

       Objectively, given the facts here, the detectives’ responses to the
defendant’s request for an attorney have no bearing on the weight we give to
the detectives’ representations that the defendant was free to leave or terminate
the interview because the defendant did not request to do so. His request to
consult with an attorney cannot be equated to a request to terminate the
interview. We find support for this conclusion in our decision in Locke, where
we recognized that repeatedly advising a defendant that he is free to leave is a
strong indication that the defendant is not in custody. Locke, 149 N.H. at 7.
We concluded that the defendant in Locke was not in custody despite his
inquiry to the detective during the interview if he had any rights. Id. at 5. Nor
did the interview become custodial in Locke when the defendant stood up,
walked out of the interview room, and “ran into” the detective in the hallway
and then returned to the interview room, because the detective neither blocked
the defendant’s path nor told the defendant to go back into the room. Id. at 5,
7.

       Similarly, here, at no time did the defendant ask to leave the interview
room or to terminate the interview. Nor is there evidence in the record to
suggest that the defendant made gestures or otherwise indicated that he
wanted to leave or terminate the interview. Indeed, the defendant asking to
consult with an attorney is more akin to the defendant in Locke asking if he
had any rights. The detectives here did not, as the defendant contends, ignore
their promise that the defendant could terminate the interview at any time.


                                       10
There is no indication in the record that the detectives restricted the
defendant’s ability to leave or end the questioning. Thus, we find that this
factor — instructing the defendant that he is free to leave at any time — weighs
against a finding of custody even when considering the defendant’s request to
consult with a lawyer.

       Second, the defendant argues that the trial court erred in finding that
the length of the interview was a factor that weighed against a finding of
custody. The defendant contends that the trial court failed to consider the
entire interaction between the defendant and the officers when calculating the
length of the interview. Specifically, the defendant asserts that the detectives
spent over two and a half hours with him — from the moment the officers
arrived at the defendant’s business to when the detectives returned the
defendant to the police station after going to the hospital. We recently noted
that “[w]hile in general, [brief interrogations] weigh[] against a finding of
custody, the length of questioning can be a relatively ‘undeterminative factor in
the analysis of custody.’” In re E.G., 171 N.H. at ___ (slip op. at 12) (quoting
United States v. Griffin, 922 F.2d 1343, 1348 (8th Cir. 1990)). We recognize
that the defendant’s interaction with the detectives lasted over two hours, but
the record supports the trial court’s finding that the only substantive
questioning occurred while the defendant was in the interview room at the
station, which lasted less than twenty minutes. Cf. Locke, 149 N.H. at 6-7
(finding no custody, and recognizing, in part, that the interview’s duration was
not excessive — it lasted for three and one-half hours, and there was no
evidence of shouting or harsh tones). On balance, we conclude that despite the
length of the overall interaction, the trial court did not err by only considering
the brevity of the interview at the station and we agree with the trial court that
this factor weighs against a finding of custody.

       Third, the defendant argues that the accusatory nature of the
questioning weighs in favor of a finding of custody. “[W]e have repeatedly
recognized the importance of the absence or presence of accusatory
questioning in our analysis of custody, contrasting accusatory questioning,
which weighs in favor of custody, with questioning of a purely general nature,
which supports a determination of no custody.” McKenna, 166 N.H. at 682;
Jennings, 155 N.H. at 775 (nature of interrogation is important factor in
custody determination); see also State v. Dedrick, 132 N.H. 218, 225 (1989)
(finding custody, in part, because intensity of the interview escalated when the
officers accused the defendant of untruths and stated “time and again” that it
was the defendant who had killed the victim), abrogated on other grounds by
State v. Ford, 144 N.H. 57, 62-63 (1999); cf. State v. Graca, 142 N.H. 670, 675
(1998) (concluding that the defendant was not in custody, in part, because the
“questioning throughout the incident was of a purely general nature”). The
defendant relies upon Jennings to argue that when Lombardi urged the
defendant to be truthful and “confronted him with alleged evidence which was
inconsistent with his denial of sexual contact with K.L.,” this accusation weighs


                                       11
in favor of finding custody. See Jennings, 155 N.H. at 774. In Jennings,
however, the officer began the interview by immediately “confront[ing] the
defendant with his daughter’s allegations of sexual assault and said he was
certain she was telling the truth.” Id. Moreover, in Jennings, we considered
the questioning during the interview in conjunction with the “control exercised
by the police from the beginning of the encounter,” which clearly indicated
“that the police believed the defendant to be guilty of sexual assault [signaling]
to a reasonable person that his freedom of movement was curtailed to the
degree associated with formal arrest.” Id.

       By contrast, in this case, Lombardi stated only that he had some
evidence to suggest that the defendant’s statements were inaccurate and that
he just wanted the truth from the defendant. Lombardi then provided the
defendant with an opportunity to respond. Furthermore, there is nothing in
the record to suggest that Lombardi accused the defendant of committing a
specific crime. Cf. McKenna, 166 N.H. at 682-83 (concluding that the
accusatory nature of the questioning — repeatedly asking the defendant, for
over an hour, why he sexually assaulted the victim — weighed in favor of a
finding of custody). The majority of the questioning was not accusatory in
nature and as soon as it became arguably accusatory, the defendant asked to
consult with an attorney. At that point, the questioning ceased, but for one
assertion made in the context of a request for consent to search, asking the
defendant to confirm his denial that any sexual assault had occurred.
Furthermore, here, unlike the confrontational tone used in Jennings, the trial
court found that “the detectives presented a relaxed demeanor[,] . . . were
cordial toward the defendant,” and did not “raise their voices.” Thus, the
overall tone of the interview was not accusatory and, therefore, this factor
weighs against a finding of custody.

       Fourth, the defendant argues that when the trial court considered the
fact that the detectives were in plain clothes as a factor that weighs against
custody, the trial court ignored the “actual appearance of the detectives
involved.” We generally find the fact that the officers are in plain clothing to
weigh against a finding of custody. See Locke, 149 N.H. at 4, 6 (finding no
custody when, in part, the two officers were in plain clothes, displayed their
badges when identifying themselves, and weapons were not displayed).
However, we recognize that in this case, this factor weighs slightly more in
favor of a finding of custody because the two detectives’ weapons and badges
were plainly visible to the defendant, and a third uniformed officer arrived to
guard the store while the defendant and Gomez went to the police station.
These facts differ from situations where the officers are in plain clothes and
their weapons are not visible. Thus, taken together, these facts weigh slightly
in favor of a finding of custody.

       Finally, the defendant argues that in conducting its custody analysis, the
trial court “missed” the dynamic of the situation involving the detectives’


                                        12
initiation of contact. We acknowledge that when police initiate contact with the
suspect, custody is more likely to exist. See McKenna, 166 N.H. at 684
(relevant to our assessment of the character of the interrogation is the fact that
the police initiated the contact with the defendant). Contrary to the
defendant’s assertion, however, the trial court considered this factor as
weighing in favor of finding custody and we do not disagree. As the trial court
also noted, all of the factors are to be considered together to determine whether
there was “restraint on freedom of movement to the degree associated with
formal arrest.” Id. at 676 (quotation omitted). We do not rely on any single
factor in isolation. Id. at 686.

       In reviewing the ultimate determination of custody, we acknowledge that
some facts weigh in favor of finding custody, including: the appearance of the
detectives; the detectives’ initiation of contact with the defendant; and the
questioning at the police station in a small interview room, with the door
closed, and with the defendant in the chair furthest from the door. However, in
addition to the facts discussed above that weigh against a finding of custody,
the following facts also suggest that the defendant was not in custody: the
defendant agreed to go to the police station; he drove there voluntarily; he was
signed in as a visitor; the interview lasted less than twenty minutes; and he
was not restrained in any way. Thus, although some factors weigh in favor of a
finding of custody, after considering the totality of the circumstances of the
encounter, we conclude that a reasonable person in the defendant’s position
would not have believed himself to be in custody, and therefore, he was not in
custody for Miranda purposes when he was questioned and signed the two
consent forms. See In re E.G., 171 N.H. at ___ (slip op. at 13); McKenna, 166
N.H. at 677. The Federal Constitution offers the defendant no greater
protection than does the State Constitution with regard to the defendant’s
rights under Miranda. See In re E.G., 171 N.H. at ___ (slip op. at 13); J.D.B. v.
North Carolina, 564 U.S. 261, 270-71 (2011). Therefore, we reach the same
result under the Federal Constitution.

       Next, the defendant argues that his consent to the searches of the store
and his person were not voluntary due to the coercive manner by which the
detectives secured his consent in violation of his rights under Part I, Article 19
of the New Hampshire Constitution and the Fourth and Fourteenth
Amendments to the United States Constitution. “A voluntary consent free of
duress and coercion is a recognized exception to the need for both a warrant
and probable cause.” State v. Livingston, 153 N.H. 399, 405 (2006) (quotation
omitted). The burden is on the State to prove, by a preponderance of the
evidence, that the consent was free, knowing, and voluntary. Id. The
voluntariness of the consent is a question of fact determined by examining the
totality of the circumstances. Id. We will disturb the trial court’s factual
findings only if they are not supported by the record or are clearly erroneous.
Id. Our review of the trial court’s legal conclusions, however, is de novo. Id.



                                        13
       The trial court found that the State met its burden of establishing that
the defendant validly consented to the searches. In reaching its conclusion,
the trial court relied upon the following facts: (1) the State produced two
consent forms signed by the defendant, see State v. Watson, 151 N.H. 537, 541
(2004) (use of written consent form may be an important factor when
evaluating totality of the circumstances); (2) the defendant was not in custody,
see id. at 540-41 (fact that defendant is in custody may weigh heavily against
finding of valid consent); (3) the video recording demonstrated that Lombardi
clearly explained that the defendant did not have to consent to either search,
see id. at 541 (good policy for police officers to advise persons that they have
right to refuse to consent to warrantless search); and (4) the defendant’s tone
in the video demonstrated that he freely and voluntarily gave his consent to
search the store, cf. id. (upholding trial court’s finding that even though the
defendant’s consent was “perhaps done unenthusiastically,” the defendant
freely, knowingly, and voluntarily consented to the search).

       The defendant argues that custody is a factor that weighs heavily in
determining whether consent was involuntary. See id. at 540-41. This is a
valid point. However, we have already established that the defendant was not
in custody when he consented to the two searches. Therefore, the detectives
did not violate his Miranda rights by continuing to speak with him or by asking
for his consent to search, and, thus, this factor does not weigh against a
finding of valid consent.

       The defendant next argues that “[r]egardless of whether the [d]efendant
was in custody, his consent was involuntary for a myriad of other reasons.”
The defendant contends that the detectives went beyond informing the
defendant of viable alternatives to consent — obtaining a search warrant —
because the detectives threatened to close his business while they sought a
warrant authorizing a search of the store. See Livingston, 153 N.H. at 406. In
asserting this argument, the defendant seeks to distinguish the circumstances
here from the facts in Livingston. In Livingston, we noted that informing a
defendant of viable alternatives to a consent search does not necessarily vitiate
consent. Id. The defendant in Livingston had initially refused to consent to a
search of his vehicle. Id. at 406-07. When he refused, he thought he had no
other options available. Id. at 407. The officer then informed the defendant
that while he could continue to refuse a search of the vehicle, his refusal would
result in a canine sniff search of the exterior of the vehicle and if the canine
responded to the odor of narcotics, the officer would then seize the vehicle and
apply for a search warrant. Id. In light of these circumstances, we affirmed
the trial court’s conclusion that the officer’s statements were more explanatory
than coercive and thus, the defendant’s consent was voluntary. Id.

        Contrary to the defendant’s assertion, the present circumstances are
similar to Livingston. Here, we rely upon the trial court’s finding that “[b]ased
on . . . Lombardi’s tone and demeanor, Lombardi was [not] threatening to close


                                       14
the defendant’s store permanently or was otherwise making any other type of
impermissible threat.” Therefore, as in Livingston, Lombardi’s statement was
more explanatory than coercive because Lombardi was merely attempting to
advise the defendant of the consequences of his refusal to consent. The
circumstances are thus different here than in other cases where the alleged
threats “went beyond ‘a mere reference to the fact that [officers] could obtain a
[search] warrant.’” State v. Socci, 166 N.H. 464, 473-74 (2014) (quoting United
States v. Ivy, 165 F.3d 397, 403 (6th Cir. 1998) (alleged threats included
making arrests, using crowbars and sledgehammers, or taking away the
defendant’s children if he did not consent to a search)).

      As the trial court also found, the defendant had already verbally
consented to the search prior to this alleged “threat” being made. Given that
the defendant had already consented to the search of his business and
considering the trial court’s conclusion relating to Lombardi’s tone and
demeanor, we conclude that Lombardi’s subsequent statement did not coerce
the defendant to consent. Thus, Lombardi’s explanation of viable alternatives
to consent does not weigh against a finding of a voluntary consent.

       The defendant also argues that the trial court minimized his request to
speak with a lawyer. Specifically, the defendant contends that, regardless of
whether he was in custody, the trial court failed to consider that he had
requested to consult with an attorney in order to understand the consent form
seeking his DNA sample and was never afforded an opportunity to speak with
one. We disagree. The trial court considered this request for counsel and
found that Lombardi did not ignore it. The record supports this conclusion.
Lombardi informed the defendant that he could consult with an attorney when
he stated, “[w]ell that’s fine if you want to consult a lawyer about that. Like I
said I’m not going to force you to [consent].” This statement informed the
defendant that he could consult an attorney before consenting to the search of
his person.

      Moreover, the defendant’s initial refusal to consent to the DNA search
does not necessarily invalidate a subsequent consent as involuntary. See State
v. Green, 133 N.H. 249, 259 (1990). The defendant could have continued to
refuse to consent or could have left the room. Notably, the defendant’s initial
refusal to consent to the body search, followed by execution of the consent
form without asking any questions, suggests that the defendant understood his
rights to refuse and was not coerced into signing the consent form. See State
v. Patch, 142 N.H. 453, 459 (1997) (“The fact that the defendant consented to a
search of his vehicle’s trunk and to portions of [another] residence, but refused
to consent to a further search of his own residence, indicates that the
defendant understood his right to refuse to consent to a search, and that the
consent was knowingly, voluntarily, and freely given.”); State v. Prevost, 141
N.H. 647, 650 (1997) (finding no coercion, based in part, on the fact that,
despite the defendant’s initial refusal and request for an attorney, she


                                       15
subsequently signed the consent form without hesitation). There is no
evidence that the detectives coerced the defendant into signing the consent
form and the defendant offered no evidence to the trial court that conflicted
with Lombardi’s testimony regarding the facts and circumstances surrounding
the defendant’s ultimate decision to consent to a search of his person. Thus,
his request to consult an attorney does not weigh against a finding of a
voluntary consent.

       Therefore, when considering the totality of the circumstances, we agree
with the trial court that the defendant’s consent to both searches was free,
knowing, and voluntary. Because the Federal Constitution affords no greater
protection than the State Constitution, see Livingston, 153 N.H. at 408;
Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973) (whether a consent to a
search was voluntary is a question of fact determined from the totality of all of
the circumstances), we reach the same result under the Federal Constitution
as we do under the State Constitution.

                                                  Affirmed.

     LYNN, C.J., and HICKS, BASSETT, and HANTZ MARCONI, JJ.,
concurred.




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