             Opinions of the Colorado Supreme Court are available to the
         public and can be accessed through the Judicial Branch’s homepage at
           http://www.courts.state.co.us. Opinions are also posted on the
           Colorado Bar Association’s homepage at http://www.cobar.org.


                                                        ADVANCE SHEET HEADNOTE
                                                                       May 6, 2019

                                       2019 CO 33

No. 19SA20, People v. Cline—Privilege Against Self-Incrimination—Miranda
Warnings—What Constitutes Custody.

      In this interlocutory appeal, the supreme court considers whether the trial court

erred in suppressing a statement made by the defendant following a search of his

residence by his parole officer and a member of the police department. After the search

of the defendant’s bedroom yielded a zippered pouch containing a glass pipe and a small

piece of straw with residue that tested presumptively positive for methamphetamine, the

police officer decided to question the defendant outside his residence. He asked the

defendant about the zippered pouch, and the defendant denied it was his. He then

inquired about who had access to the bedroom, and the defendant indicated that other

people had access to the room and that a lot of people had been staying with him recently.

Finally, the police officer asked the defendant when he last used methamphetamine, and

the defendant responded that it was two to three weeks earlier.

      The trial court found that confronting the defendant with the zippered pouch and

questioning him about it effectively rendered him under arrest. In a written order, the

trial court reiterated that once the police officer confronted the defendant with the
zippered pouch, a reasonable person in that position would not have believed “he was

free to leave.” The trial court ruled that any subsequent questions of the defendant

should have been preceded by a Miranda advisement. Since no such advisement was

provided, it suppressed a statement made by the defendant.

      The supreme court holds that the trial court erred by applying the “free to leave”

standard. The relevant question is not whether a reasonable person would believe he

was free to leave, but whether such a person would believe he was deprived of his

freedom of action to a degree associated with a formal arrest. Applying the correct

standard, the supreme court concludes that, under the totality of the circumstances, a

reasonable person in the defendant’s position would not have considered himself so

deprived. While the police officer’s confrontation of the defendant with the zippered

pouch is a factor that weighs in favor of a finding of custody for purposes of Miranda,

when viewed in conjunction with the other circumstances present, it is insufficient to

warrant a determination that the defendant was in custody and that the police officer was

required to read him his Miranda rights. Therefore, the supreme court reverses the trial

court’s suppression order.
                      The Supreme Court of the State of Colorado
                      2 East 14th Avenue • Denver, Colorado 80203

                                       2019 CO 33

                         Supreme Court Case No. 19SA20
                     Interlocutory Appeal from the District Court
                  Moffat County District Court Case No. 18CR270
                      Honorable Michael A. O’Hara III, Judge
______________________________________________________________________________

                                   Plaintiff-Appellant:

                           The People of the State of Colorado,

                                            v.

                                  Defendant-Appellee:

                                Justin Ray Cline.
______________________________________________________________________________

                                Order Reversed
                                    en banc
                                  May 6, 2019
______________________________________________________________________________

Attorneys for Plaintiff-Appellant:
Brett D. Barkey, District Attorney, Fourteenth Judicial District
Brittany Schneider, Deputy District Attorney
       Craig, Colorado

Attorneys for Defendant-Appellee:
Megan A. Ring, Public Defender
Abigail Kurtz-Phelan, Senior Deputy Public Defender
      Steamboat Springs, Colorado



JUSTICE SAMOUR delivered the Opinion of the Court.
JUSTICE HOOD dissents, and CHIEF JUSTICE COATS and JUSTICE HART join in
the dissent.
¶1    In this interlocutory appeal, we address whether the trial court erred in

suppressing a statement made by the defendant, Justin Cline, following a search of his

residence by his parole officer and a member of the Craig Police Department. The search

yielded a zippered pouch containing a glass pipe and a small piece of straw with white

powdery residue that tested presumptively positive for methamphetamine. The trial

court found that when Corporal Grant Laehr confronted Cline with the zippered pouch

and questioned him, Cline was “effectively under arrest” and “not free to leave.” In a

written order, the trial court reiterated that once Cline was confronted with the zippered

pouch, “a reasonable person in [his] position would not have believed he was free to

leave.” The trial court ruled that any subsequent questions should have been preceded

by an advisement pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). Since no such

advisement was provided, the trial court suppressed a statement made by Cline.

¶2    We now reverse. We hold that the trial court applied the wrong legal standard.

We further hold that, under the totality of the circumstances, a reasonable person in

Cline’s position would not have considered himself deprived of his freedom of action to

a degree associated with a formal arrest. We recognize that confronting Cline with the

zippered pouch is a factor that weighs in favor of a finding of custody for purposes of

Miranda. But we conclude that, when viewed in conjunction with the other circumstances

present, it is insufficient to warrant a determination that Cline was in custody and that

Corporal Laehr was required to read him his Miranda rights. Because the trial court

applied the wrong legal standard and treated as dispositive the fact that Corporal Laehr



                                            1
confronted Cline with the zippered pouch, we reverse its suppression order and remand

for further proceedings consistent with this opinion.

                         I. Facts and Procedural Background

¶3     Cline was placed on parole in an unrelated case in February 2017. As a condition

of his parole, he agreed to allow his parole officer to search his residence at any time. At

approximately 11 a.m. on December 10, 2018, Cline’s parole officer, Kevin Koopmann,

went to Cline’s residence to conduct a home visit and search.1 At Koopmann’s request,

two members of the Craig Police Department, Corporal Laehr and Officer Josh Lyons,

met him at the fourplex where Cline’s residence was located to assist with the search.

After knocking on the door and contacting Cline, Koopmann explained the purpose of

the visit and asked Cline to step outside; he used a professional, but firm, tone. Cline

complied, at which point Koopmann patted him down for weapons and found none.

Pursuant to Koopmann’s instructions, Cline remained outside with Officer Lyons while

Koopmann and Corporal Laehr completed the search, which lasted approximately ninety

minutes.

¶4     During the search, Officer Lyons and Cline engaged in “normal bantered

conversation” outside the residence.        The tone of the discussions was friendly

throughout. Officer Lyons did not tell Cline he could not leave, and Cline and three other




1 Koopmann had previously visited Cline and searched his residence. He was required
to conduct periodic searches of Cline’s residence.

                                             2
individuals located on the premises were able to move around in the parking area in front

of the residence. At one point, Cline asked Officer Lyons if he could move to the sidewalk

and stand in the sun because he was cold, and Officer Lyons did not prevent him from

doing so. Officer Lyons, Cline, and the three other individuals then all walked over to

the sidewalk. In light of the cold temperatures, Corporal Laehr retrieved a coat from

inside the residence for Cline. At another point, Cline asked if he could go speak to an

individual by the name of Kelly Nielsen, who was working on a truck parked on the side

of the residence. Officer Lyons did not prohibit him from doing so, but asked if Nielsen

could come to the area where Cline was instead.

¶5    Koopmann’s search focused on the room Cline identified as his bedroom. There,

he found a zippered pouch containing a glass pipe and a small piece of straw with white

powdery residue. Corporal Laehr performed a field test on the residue, which revealed

that it was presumptively positive for methamphetamine.           Given the preliminary

indication of methamphetamine, he decided to question Cline about the zippered pouch

and its contents in the parking area in front of Cline’s residence. It appears that neither

Koopmann nor Officer Lyons was present during the interrogation, although both

remained on the premises. Cline was not handcuffed or otherwise physically restrained,

and Corporal Laehr used a conversational tone and did not draw his weapon or use any

other show of force. Further, Cline did not appear upset; instead, he seemed to be calm

and to understand the questions asked and the context of the conversation. And, as far

as Corporal Laehr could tell, Cline was not under the influence of alcohol or drugs.



                                            3
¶6     Corporal Laehr asked Cline three questions. First, he asked about the zippered

pouch, and Cline denied it was his. Second, he asked about access to Cline’s bedroom,

and Cline said that other people had access to the room, that a lot of people had been

staying with him recently, and that someone else must have put the zippered pouch in

the room; Cline reiterated that the zippered pouch was not his. Third, Corporal Laehr

asked the question that gave rise to the statement suppressed by the trial court: When

had Cline last used methamphetamine? Cline responded that it was two to three weeks

earlier. At that point, Corporal Laehr informed Cline that he was under arrest for

possession of a Schedule II controlled substance and placed him in handcuffs. Other than

inquiring whether Cline had anything dangerous in his pockets, Corporal Laehr did not

ask any other questions. Cline was not advised of his Miranda rights by anyone.

¶7     The prosecution subsequently charged Cline with drug-related offenses. Cline

filed pretrial motions to suppress. As relevant here, he sought to exclude evidence of all

his statements, arguing that they were obtained in violation of Miranda. Following an

evidentiary hearing during which Koopmann, Corporal Laehr, and Officer Lyons

testified, the trial court orally granted Cline’s request in part and denied it in part. The

trial court first found that Corporal Laehr’s confrontation of Cline with the zippered

pouch did not violate Miranda for two reasons: (1) Cline was “not under arrest” and “no

reasonable person would have believed that they were under arrest” at that time; and

(2) such confrontation did not constitute an interrogation for purposes of Miranda.

However, the trial court then ruled as follows:



                                             4
      Corporal Laehr then went on to ask Mr. Cline a question, knowing that Mr.
      Cline had been confronted with what appeared to be illegal . . . substances
      or illegal items. And asked him when is the last time you used . . .
      methamphetamine or words to that effect. That question was designed to
      elicit an incriminating response and in fact did elicit an incriminating
      response. [Cline] responded that he last used methamphetamine two–three
      weeks prior. The Court finds that that question was asked after Mr. Cline
      was effectively under arrest and certainly not free to leave. . . . So the Court
      is going to suppress the statement about using methamphetamine
      two–three weeks ago.

¶8    It appears from the record that the trial court was under the misimpression that

Corporal Laehr only asked Cline one question—regarding the last time Cline had used

methamphetamine. Defense counsel attempted to alert the trial court to this issue, noting

that the court seemed to “believe[] that [Corporal] Laehr did not ask a question about the

item[] . . . found in [Cline’s] room.” She informed the court that Corporal Laehr in fact

testified that he had questioned Cline about the zippered pouch found in the bedroom

and that Cline had denied it was his and had then explained that there were other people

with access to the bedroom. The trial court responded that it was “not sure what . . .

question” counsel was referring to, “but regardless,” it had already concluded that Cline

was not under arrest until “after he was confronted” with the zippered pouch. This

response suggests that the trial court also misremembered that the two earlier questions

were asked after Cline was confronted with the zippered pouch.

¶9    In a written order issued six days later, the trial court articulated its ruling again.

It indicated that “once [Corporal] Laehr confronted [Cline] with the zippered pouch, a

reasonable person in [Cline’s] position would not have believed he was free to leave” and

would have believed he “was, in fact, under arrest, whether the magic words were


                                             5
spoken at that time or not.” The trial court thus concluded that the question by Corporal

Laehr about the last time Cline had used methamphetamine constituted a “custodial

interrogation” and “should have been asked only after a Miranda advisement.” Because

no Miranda advisement was provided, the trial court suppressed Cline’s response. It did

not suppress any of Cline’s earlier statements.2

¶10   The prosecution then brought this interlocutory appeal.3

                                      II. Analysis

¶11   The prosecution argues that the trial court erred in finding that Cline was in

custody for Miranda purposes when he made the suppressed statement. We agree.

¶12   We hold that the trial court applied the wrong legal standard. We further hold

that, under the totality of the circumstances, a reasonable person in Cline’s position

would not have considered himself deprived of his freedom of action to a degree

associated with a formal arrest. We acknowledge that Corporal Laehr confronted Cline




2Elsewhere, the written order indicated that Corporal Laehr had “asked [Cline] about the
zippered pouch” and that Cline had “denied that he owned that pouch and [had] claimed
that someone else staying with him must have put that pouch in his room.” But the
written order did not explain why that statement was not suppressed, since it, too, was
made after Corporal Laehr had shown Cline the zippered pouch. Nor did the written
order mention the question Corporal Laehr asked Cline about who had access to the
bedroom or Cline’s response to that question.
3 This interlocutory appeal was filed pursuant to section 16-12-102(2), C.R.S. (2018), and
C.A.R. 4.1(a). We find that the prosecution has met its threshold requirement to lodge an
interlocutory appeal in this court from a district court’s order granting a defendant’s
motion to suppress evidence. See § 16-12-102(2) (the People must certify that the appeal
is not taken for purposes of delay and that the evidence is a substantial part of the proof
of the charge pending against the defendant); C.A.R. 4.1(a) (same).

                                            6
with the zippered pouch and its contents, a factor that weighs in favor of a finding of

custody for purposes of Miranda. However, when viewed in conjunction with the other

circumstances present, this fact is insufficient to warrant a determination that Cline was

in custody for Miranda purposes. Therefore, a Miranda advisement was not required.

                                 A. Standard of Review

¶13    It is now axiomatic that review of a trial court’s order regarding a defendant’s

motion to suppress involves “a mixed question of law and fact.” People v. Threlkel, 2019

CO 18, ¶ 15, __ P.3d __ (quoting People v. Gothard, 185 P.3d 180, 183 (Colo. 2008)). We

defer to the trial court’s factual findings and do not disturb them so long as “they are

supported by competent evidence in the record.” Id. (quoting People v. Castaneda, 249

P.3d 1119, 1122 (Colo. 2011)). But we review de novo “the trial court’s legal conclusions.”

Id. (quoting People v. Pitts, 13 P.3d 1218, 1222 (Colo. 2000)).

¶14    Here, given the trial court’s apparent misperception and misrecollection of some

of the evidence presented at the hearing, we defer to some, but not all, of its factual

findings.

                              B. Relevant Legal Principles

¶15    The Fifth Amendment to the United States Constitution provides, in pertinent

part, “No person . . . shall be compelled in any criminal case to be a witness against

himself.” U.S. Const. amend. V. More than a half century ago, the United States Supreme

Court concluded that the privilege against self-incrimination protected by the Fifth

Amendment “applies in the context of a custodial police interrogation,” an inherently

coercive environment. Verigan v. People, 2018 CO 53, ¶ 19, 420 P.3d 247, 251 (citing
                                               7
Miranda, 384 U.S. at 460–61). In recognition of the pressures present during police

interrogations, which tend to undermine a defendant’s will to resist and may compel him

to speak when he would not otherwise do so, see id., the Miranda Court held that “the

prosecution may not use statements . . . stemming from custodial interrogation of the

defendant unless it demonstrates the use of procedural safeguards effective to secure the

privilege against self-incrimination,” Miranda, 384 U.S. at 444.       These “procedural

safeguards” long ago became known in common parlance as Miranda warnings: “Prior to

any questioning, the [defendant] must be warned that he has a right to remain silent, that

any statement he does make may be used as evidence against him, and that he has a right

to the presence of an attorney, either retained or appointed.” Id. The prosecution is not

allowed to introduce in its case-in-chief any statements made by the defendant during a

custodial interrogation unless it first establishes that he was warned about these rights

and that he then voluntarily, knowingly, and intelligently waived them.           People v.

Sampson, 2017 CO 100, ¶ 17, 404 P.3d 273, 276.

¶16    Although due process prohibits the use of any involuntary statements—i.e.,

statements coerced by law enforcement—Miranda’s prophylactic warnings apply only

when the defendant has been subjected to both custody and interrogation. People v.

Figueroa-Ortega, 2012 CO 51, ¶ 7, 283 P.3d 691, 692–93. Because there is no dispute that

Cline was interrogated, we are only concerned with the custody prong in this case. We

limit our discussion accordingly.

¶17    A person is in custody for purposes of Miranda if he “has been formally arrested

or if, under the totality of the circumstances, a reasonable person in [his] position would

                                            8
have felt that [his] 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. It is undisputed that when

Cline was questioned he had not been formally arrested. Thus, we must look to “the

totality of the circumstances” and ask whether, at the time of Corporal Laehr’s

interrogation, a reasonable person in Cline’s position would have considered himself

deprived of his freedom of action to a degree associated with a formal arrest. See id. We

have set forth a nonexhaustive list of factors to be considered when making this

determination:

       •   the time, place, and purpose of the encounter;

       •   the persons present during the interrogation;

       •   the words spoken by the officer to the defendant;

       •   the officer’s tone of voice and general demeanor;

       •   the length and mood of the interrogation;

       •   whether any limitation of movement or other form of restraint was placed on
           the defendant during the interrogation;

       •   the officer’s response to any questions asked by the defendant;

       •   whether directions were given to the defendant during the interrogation; and

       •   the defendant’s verbal or nonverbal response to such directions.

People v. Matheny, 46 P.3d 453, 465–66 (Colo. 2002) (quoting People v. Trujillo, 938 P.2d 117,

124 (Colo. 1997)).

¶18    We have previously cautioned, however, that “[w]hile the point at which official

infringement rises to a degree associated with a formal arrest, and therefore mandates a

Miranda warning, remains a matter to be determined” under the totality of these and any

                                              9
other relevant circumstances, custody for Miranda purposes “clearly entails some degree

of infringement on an individual’s liberty exceeding a minimally cognizable

constitutional seizure.” Figueroa-Ortega, ¶ 7, 283 P.3d at 693. Because “custodial” in the

Fifth Amendment sense refers not simply to a seizure “within the contemplation of the

Fourth Amendment,” but to an infringement on liberty to a degree associated with a

formal arrest, both the Supreme Court and our court have emphasized the infringements

on liberty that typically differentiate a mere investigatory stop from an arrest. Id. at

¶¶ 7–8, 283 P.3d at 693. We have concluded, for example, that, though not dispositive,

“drawn guns and physical restraints like the use of handcuffs are more typically

associated with an arrest than a mere stop.” Id. at ¶ 8, 283 P.3d at 693 (citing People v.

Breidenbach, 875 P.2d 879, 886 (Colo. 1994)). In the same vein, we have determined that

“making clear to a detainee that he will not be released after a short investigatory stop is

similarly indicative of an arrest.” Id. (citing People v. Polander, 41 P.3d 698, 705 (Colo.

2001)). And the Supreme Court has highlighted the importance of removing a detainee

to a secluded place (even if merely a patrol car), instead of questioning him in public

view, which would be more consistent with an investigatory stop. Id. (citing Berkemer v.

McCarty, 468 U.S. 420, 438 (1984)).

                                      C. Application

¶19    We conclude that the trial court erred during its oral ruling by applying the “free

to leave” standard in evaluating whether Cline was in custody for Miranda purposes. See

People v. Begay, 2014 CO 41, ¶ 16, 325 P.3d 1026, 1030. We likewise conclude that the trial

court erred in its written order because the relevant question “is not whether a reasonable

                                            10
person would believe he was not free to leave, but rather whether such a person would

believe he was in police custody of the degree associated with a formal arrest.” Polander,

41 P.3d at 705.

¶20    Turning to the facts of this case, we begin by considering the circumstances that

cut against a finding of custody for Miranda purposes under the proper standard.4

¶21    First and foremost, the encounter between Corporal Laehr and Cline took place in

the parking area outside the front door of Cline’s residence, not at a station house. The

location of the interaction is significant. See, e.g., Garcia, ¶ 21, 409 P.3d at 317. After all,

“the Miranda warnings were expressly developed as an added protection against

‘incommunicado interrogation of individuals in a police-dominated atmosphere.’”

Figueroa-Ortega, ¶ 7, 283 P.3d at 693 (quoting Miranda, 384 U.S. at 445). The parking area

outside Cline’s front door is a public location familiar to Cline which we consider

“neutral,” not police-dominated. See Garcia, ¶¶ 34–38, 409 P.3d at 319 (deeming the

interaction between the defendant and two officers “in the front yard” of her home to

have occurred in “a neutral location”); Mumford v. People, 2012 CO 2, ¶ 19, 270 P.3d 953,

958 (describing the curb directly in front of the defendant’s home as a “neutral area”);




4We view the trial court’s oral determination that the suppressed statement was made
after Cline “was effectively under arrest and certainly not free to leave” as a legal
conclusion, not as a factual finding. The trial court made this clear in its subsequent
written ruling, where it explained that it had orally “found that once Cpl. Laehr
confronted [Cline] with the zippered pouch, a reasonable person in [Cline’s] position
would not have believed he was free to leave and was, in fact, under arrest.”

                                              11
People v. Klinck, 259 P.3d 489, 494 (Colo. 2011) (noting that the front porch of the

defendant’s girlfriend’s house was not a location that supported a finding of custody

because it was “a familiar location”); People v. Howard, 92 P.3d 445, 451–52 (Colo. 2004)

(observing that the fact that the interaction took place in the driveway of the defendant’s

home weighed against a finding of custody).

¶22    Second, the interaction between Corporal Laehr and Cline took place in broad

daylight, not at nighttime.

¶23    Third, it appears that Corporal Laehr conducted the interrogation alone. Neither

Koopmann nor Officer Lyons was apparently present during the questioning, although

both remained on scene.

¶24    Fourth, this was a brief interrogation. Corporal Laehr asked Cline all of three

questions. He asked about the zippered pouch, access to the bedroom where the zippered

pouch was found, and Cline’s most recent use of methamphetamine. Further, Corporal

Laehr employed professional language, and there is no indication that he ever made any

threats, promises, or demands.

¶25    Fifth, Corporal Laehr used a friendly and conversational tone of voice.

Additionally, there is no indication that his demeanor was aggressive or inappropriate.

Consistent with Corporal Laehr’s approach, before the interrogation Officer Lyons

engaged in “normal bantered conversation” with Cline.

¶26    Sixth, the mood of the conversation was apparently formal, but conversational,

and was never expressly accusatory or confrontational. Cline did not appear upset by

anything Corporal Laehr said or did; to the contrary, he was calm throughout. And

                                            12
nothing Corporal Laehr said or did interfered with Cline’s apparent ability to understand

the content and context of the discussion.

¶27    Seventh, Corporal Laehr never drew his weapon or placed Cline in physical

restraints. There was no show of force by anyone.

¶28    Eighth, Cline was not removed to a secluded place. Rather, the interrogation took

place in the parking area outside the front door of his residence where he stood while

waiting for the search to be completed. Moreover, the three other individuals located on

the premises remained in the general vicinity while Cline was interrogated.

¶29    And ninth, Cline was never told that he was not free to leave or that he would not

be free to leave after the interrogation. Nor was he given any directions during the

interrogation.

¶30    On the other side of the ledger, we have identified three circumstances that

support a finding of custody for purpose of Miranda under the correct standard.

¶31    First, the interrogation occurred immediately after the search, which took a long

time—ninety minutes—and Cline was not allowed in his residence while the search was

conducted.

¶32    Second, Cline’s movement was arguably limited during the search. Indeed, he did

not just move to the sidewalk to stand in the sun; he first asked Officer Lyons if he could

do so. Officer Lyons did not forbid him from moving to the sidewalk, but he also did not

tell him that he was free to do what he wanted and was not required to seek permission

to move. At another point, when Cline asked if he could go talk to Nielsen, Officer Lyons

answered the question with another question: Could Nielsen come to Cline instead?

                                             13
While Officer Lyons did not expressly prohibit Cline from going to talk to Nielsen, he

possibly implied that Cline was not allowed to do so and that it was preferable to have

Nielsen meet Cline in the area where Cline was standing.

¶33    And third, Cline was interrogated after the search of his residence yielded a

zippered pouch with suspected methamphetamine, and he was confronted with that

zippered pouch and its contents during the questioning.

¶34    The last circumstance deserves additional attention because the trial court viewed

it as dispositive. As a preliminary matter, we have made clear that a defendant’s

reasonable belief that he will be arrested is only one factor to be considered in

determining whether an interrogation is custodial for Miranda purposes. See People v.

Hankins, 201 P.3d 1215, 1219 (Colo. 2009). Nevertheless, we have acknowledged that

“notifying a person who has already been seized that he will be charged with an

arrestable offense before being released may well elevate the seizure beyond an

investigatory stop.” Figueroa-Ortega, ¶ 10, 283 P.3d at 694. Whether Cline had been seized

(in the Fourth Amendment sense) at the time of the interrogation is open to disagreement.

And Cline was certainly not informed that he would be charged with an arrestable

offense. But the question still remains as to whether confronting him with the suspected

methamphetamine and paraphernalia found in his bedroom was the equivalent of

communicating to him that he would not be released after the interrogation because he

would be charged with an arrestable offense. Our decision in Figueroa-Ortega sheds light

on this issue.



                                           14
¶35    Figueroa-Ortega worked as a cook at a restaurant that was burglarized overnight.

Id. at ¶ 2, 283 P.3d at 692. An officer who responded to the scene learned that the front

glass door of the restaurant was smashed and that cash collected the previous night was

missing. Id. at ¶ 3, 283 P.3d at 692. Figueroa-Ortega told the officer that he was a cook at

the restaurant and that he had closed up at the end of the night. Id. During a subsequent

investigation, a detective discovered that footage from a surveillance camera at the

church next door showed that the restaurant was locked up at 11 p.m. by an employee

and that it was broken into a few hours later by the same person. Id. at ¶ 4, 283 P.3d at

692. The owners of the restaurant and a staff member of the church were subsequently

shown the footage; they identified that person as Figueroa-Ortega. Id. Thereafter, the

detective went to Figueroa-Ortega’s apartment and spoke with him outside his front door

for about twenty minutes.         Id.   During the encounter, the detective confronted

Figueroa-Ortega with the evidence that had been gathered, accused him of committing

the burglary, and told him that he would be charged with burglary—though he stopped

short of mentioning that burglary was an arrestable offense. Id. Figueroa-Ortega denied

the accusation, and the detective left without arresting him. Id.

¶36    In ruling on Figueroa-Ortega’s request to suppress his statements, the trial court

found that, at some point, the interview “became accusatory and confrontational,

constituting ‘custody’ for purposes of the Miranda doctrine.” Id. at ¶ 5, 283 P.3d at 692.

This court reversed, reasoning as follows:

       [M]erely confronting a suspect with the evidence against him and threatening, no
       matter how confidently, to charge him with a crime at some point in the future does
       not, by itself, constitute an infringement on his liberty, much less the kind of

                                               15
       infringement associated with a formal arrest. The trial court in this case did not
       find that [Figueroa-Ortega] was told he would not be released, nor would
       such a finding have been supported by the record. Instead it merely
       categorized the detective’s statement that the defendant would be charged,
       along with his belief that [Figueroa-Ortega] committed the crime, his
       confrontation of the defendant with the other evidence against him, his
       accusatory tone, and his apparent purpose of obtaining a confession, as an
       indication of “custodial interrogation.”

Id. at ¶ 10, 283 P.3d at 694 (emphasis added).

¶37    Much like the confrontation of Figueroa-Ortega with the evidence of the

restaurant’s burglary did not turn his interrogation into a custodial one, we conclude that

the confrontation of Cline with the zippered pouch did not render his interrogation a

custodial one. In our view, merely confronting Cline with evidence is not sufficient to

raise the infringement on his liberty, if any, to the type that is associated with a formal

arrest. This is especially the case when we consider, as we must, the confrontation

together with the rest of the circumstances we have outlined.

¶38    We recognize that, unlike Figueroa-Ortega, Cline was arguably detained, and that

unlike the detective’s confrontation of Figueroa-Ortega (which involved a discussion of

the surveillance footage and other evidence), Corporal Laehr confronted Cline with

physical evidence (the zippered pouch). However, under the circumstances of this

particular case, these facts are not enough to warrant a finding of custody for Miranda

purposes. We note that the detective told Figueroa-Ortega he would be charged with

burglary of the restaurant, but Corporal Laehr did not inform Cline that he would be

charged with any crime, much less an arrestable one. Moreover, after steadfastly denying

any involvement in the burglary, Figueroa-Ortega conceded both that he had gone back


                                              16
to the restaurant after locking up and that he knew where the money from the day’s

receipts was kept each night. Id. at ¶ 4, 283 P.3d at 692. In stark contrast, after denying

ownership of the zippered pouch, Cline told Corporal Laehr that other people had access

to his bedroom, that a lot of people had been staying with him recently, and that someone

else must have put the zippered pouch in his bedroom. These circumstances, considered

in conjunction with the circumstances we described earlier, militate against a finding that

a reasonable person in Cline’s position would have believed that he was going to be

charged with an arrestable offense after Corporal Laehr’s interrogation.

¶39    Significantly, we have little difficulty determining that, to the extent Cline’s liberty

was infringed while his residence was searched, it was more typical of the type associated

with a mere investigatory stop (albeit a long one) than that associated with a formal

arrest. And the only circumstance that changed between the search and the interrogation

is that Corporal Laehr showed Cline the zippered pouch and asked him about it. For the

reasons we have articulated, we conclude that whatever infringement may have existed

on Cline’s liberty at that moment was not elevated to the level associated with a formal

arrest by the mere display of the zippered pouch and Corporal Laehr’s question about it.

¶40    We are not otherwise persuaded by our decision in Polander.              There, police

received a report late in the evening from a Burger King employee regarding suspected

drug activity by the occupants of a service-type van and a small vehicle in the parking

lot. Polander, 41 P.3d at 701. Two officers arrived in two separate patrol cars minutes

later and found that the only vehicles in the parking lot were the van and the small vehicle

parked side-by-side within inches of each other. Id. After parking their cars behind the

                                              17
van, the officers approached it on foot from opposite sides. Id. There was no one in the

driver’s seat, but there were multiple people talking and engaged in some activity in the

back of the van. Id. In response to inquiries by the officers, one of the individuals

identified himself as the driver. Id. Because the driver’s hands were in his pockets and

there were tools in the back of the van that could be used as weapons, an officer told him

to exit the van so he could pat him down for weapons. Id. The pat-down search revealed

that the driver had a small, cylindrical container in his front pocket with what appeared

to be a narcotic. Id. Therefore, the officer handcuffed the driver and ordered him to sit

on a nearby curb. Id.

¶41   While the first officer was interrogating the driver on the curb, the other officer

followed in his partner’s footsteps and ordered Polander and the other occupants out of

the van and patted them down for weapons. Id. He then ordered Polander and the other

occupants to sit on the curb next to the handcuffed driver. Id. After receiving consent to

search the van, the officers found a spoon that appeared to have been burned, a razor

blade, a black purse belonging to Polander, and a “Crown Royal” bag. Id. Polander’s

purse and the Crown Royal bag contained white, powdery balls suspected of being

cocaine. Id. When an officer asked to whom the drugs belonged, Polander responded

that they were hers. Id. At that point, she was handcuffed. Id.

¶42   On appeal, this court affirmed the trial court’s decision to suppress Polander’s

statement admitting ownership of the drugs in her purse and the Crown Royal bag,

finding that she was in custody for Miranda purposes and that, therefore, a Miranda

advisement should have been provided to her before questioning. Id. at 705. We noted

                                           18
that we had previously made clear that “Miranda rights are . . . implicated when police

detain a suspect using a degree of force more traditionally associated with concepts of

‘custody’ and ‘arrest’ than with a brief investigatory detention.” Id. Although we

acknowledged that Polander “was not confined at the police station” and that officers

had not drawn their weapons, handcuffed her, or demonstrated any type of force

typically associated with an arrest (as distinguished from an investigatory stop), we

determined that Polander was seized and then questioned about the ownership of

contraband “under circumstances in which it was apparent to all that the police had

grounds to arrest” her and would arrest her. Id. We said that, regardless of whether the

officers had communicated to Polander that her seizure “was elevated in their minds

from an investigatory stop to an arrest,” it was “clear that [she] had every reason to

believe she would not be briefly detained and then released as in the case of an

investigatory stop.” Id.

¶43    To be sure, there are similarities between Polander and this case. But there are also

a few distinctions we find significant. First, Polander was ordered by a police officer to

exit the van and was then patted down by that officer for weapons. Second, Polander

was ordered by a police officer to sit on the curb next to the driver of the van, who had

already been handcuffed and placed under arrest. And third, some of the drugs found

in the van were in Polander’s purse. Thus, under all the circumstances, when the officer

asked to whom the drugs found during the search of the van belonged, “it was apparent

to all” that the police would arrest Polander. Id.



                                            19
¶44    In comparison, here, there is no evidence that Cline was contacted based on

suspicion of drug activity or any criminal activity. Rather, the contact occurred as a result

of his agreement to allow his parole officer to search him and his residence at any time.

Pursuant to that agreement, he was patted down for weapons by his parole officer.

Because Koopmann had conducted other searches of Cline’s residence, Cline was

presumably familiar with the protocol employed by Koopmann. Furthermore, Cline was

not ordered by a police officer (or anyone else) to stay in a particular location, much less

next to an acquaintance already handcuffed and in custody for drugs recovered inside

the residence. In fact, Cline was not given any directions as to where to stand or sit;

instead, he was instructed to remain outside his residence to facilitate the search, and

during the search he was free to move around the parking area. Cf. People v. Stephenson,

159 P.3d 617, 623 (Colo. 2007) (finding it significant that, unlike Polander, Stephenson

“was not ordered to be seated next to someone already handcuffed and in custody” but

was instructed to stand “‘next to the bridge’ for his own safety and to facilitate the search

of [his] vehicle”). Later, when Corporal Laehr questioned Cline, Cline remained in the

parking area in front of his residence. And, as mentioned, after denying that the zippered

pouch was his, Cline explained that he was not the only one with access to his bedroom,

that there were a lot of people who had been staying with him recently, and that someone

else must have placed the zippered pouch in his bedroom. Consistent with Cline’s

statements, three other individuals were located on the premises. Thus, under all the

circumstances, it was not “apparent to all” that Cline was going to be arrested for the

contents of the zippered pouch. Cf. id. (distinguishing Polander and finding that it was

                                             20
not “apparent to all” that Stephenson would be arrested because “Stephenson repeatedly

denied owning the vehicle that he was driving, and [the officer’s] records check

confirmed that Stephenson did not own the vehicle where the drugs were found”).

¶45   In sum, we hold that Cline was not in custody for Miranda purposes when

Corporal Laehr asked him about the last time he had used methamphetamine. That Cline

was confronted with the zippered pouch found in his bedroom is certainly a factor that

weighs in favor of a finding of custody for purposes of Miranda. But the totality of the

circumstances present convinces us that a reasonable person in Cline’s position would

not have considered himself deprived of his freedom of action to a degree associated with

a formal arrest. Because the trial court applied the wrong legal standard and treated as

dispositive the fact that Corporal Laehr confronted Cline with the zippered pouch, it

erred in suppressing Cline’s last statement.

                                    III. Conclusion

¶46   We conclude that the trial court erred in finding that Cline was in custody for

Miranda purposes when Corporal Laehr asked him about the last time he had used

methamphetamine. Therefore, we reverse its suppression order and remand for further

proceedings consistent with this opinion.

JUSTICE HOOD dissents, and CHIEF JUSTICE COATS and JUSTICE HART join in
the dissent.




                                            21
JUSTICE HOOD, dissenting.

¶47    The majority makes fair points about Cline not having been subjected to coercive

incommunicado interrogation, one of the principal concerns animating Miranda doctrine.

Maj. op. ¶ 21 (citing People v. Figueroa-Ortega, 2012 CO 51, ¶ 7, 283 P.3d 691, 693). There

was certainly no third degree at the station house here. Instead, the interrogation took

place in broad daylight in a parking lot, without law enforcement using restraints or

weapons.

¶48    But station house browbeating isn’t the only form of governmental coercion that

Miranda seeks to stamp out. We see as much in cases like People v. Polander, where police

detained the defendant and then confronted her with direct evidence of her guilt. 41 P.3d

698, 701 (Colo. 2001). Just as here, that evidence was obtained by an officer in whose

presence an ongoing narcotics offense was occurring. Id. And, again, just as here, the

combination of detention and confrontation (with the proverbial smoking gun) curtailed

Polander’s freedom of action to a degree associated with formal arrest—and thus

amounted to custody under Miranda—even though police interrogated Polander in the

parking lot of a fast-food restaurant without using restraints or weapons. See id. at 701,

705. Because I am unpersuaded by the majority’s effort to distinguish Cline’s case from

Polander’s, I respectfully dissent.

¶49    The majority perceives several “significant” distinctions between this case and

Polander. Maj. op. ¶ 43. I address each in turn.

¶50    First, the majority notes that Polander was ordered to exit a van and then patted

down and, unlike Polander (who was sitting in a van in which narcotics activity had been

                                            1
observed), police did not contact Cline based on suspicion of any criminal activity. Maj.

op. ¶¶ 43–44; Polander, 41 P.3d at 701. Rather, law enforcement’s contact with Cline

simply resulted from Cline’s agreement to random searches as a condition of his parole.

But as the majority later notes, Cline was patted down for weapons after being ordered

to exit his home. Maj. op. ¶ 44. And presumably the reason that Cline was subject to

random searches was to permit his parole officer to verify that Cline was not engaging in

criminal activity. In other words, like Polander, Cline was the target of law enforcement

suspicion. See Polander, 41 P.3d at 701.

¶51    Second, the majority emphasizes that, unlike Polander (whom police ordered to sit

next to a handcuffed companion), police permitted Cline to move about the parking area

in front of his residence. Maj. op. ¶ 44; Polander, 41 P.3d at 701. While that is true, it is

also true that Cline’s parole officer told him to wait outside his home. Thus, like

Polander, Cline was detained. See Polander, 41 P.3d at 701. The limitation on Cline’s

interaction with his neighbor confirms as much. Yet, the majority only acknowledges

that Cline “was arguably detained.” Maj. op. ¶ 38 (emphasis added).

¶52    The majority’s reluctance to concede that Cline was not free to leave is particularly

confounding, given that the trial court made that factual finding with ample record

support. Admittedly, custody under Miranda is a narrower inquiry than seizure under

the Fourth Amendment, and those two concepts shouldn’t be confused. See People v.

Begay, 2014 CO 41, ¶¶ 15–16, 325 P.3d 1026, 1030 (“A trial court errs by applying the ‘free

to leave’ standard in evaluating whether a suspect is in custody under Miranda

doctrine.”). Nevertheless, People v. Matheny lists factors that courts should consider in

                                             2
determining whether a defendant’s freedom of movement has been curtailed to a degree

associated with formal arrest, one of which is whether there was “any limitation of

movement . . . placed on the defendant during the interrogation.” 46 P.3d 453, 465 (Colo.

2002). So, whether a defendant is free to leave is a fact courts should consider in

evaluating custody. Because these concepts overlap, one way to think about the inquiry

is as follows: Not being free to leave is factually necessary, but legally insufficient for a

finding of custody.

¶53    This distinction is crucial under our standard of review. We review de novo a trial

court’s legal conclusion regarding custody. But we defer to a trial court’s factual findings,

regarding things such as whether a defendant’s movement was limited, “so long ‘as they

are supported by competent evidence in the record.’” Maj. op. ¶ 13 (quoting People v.

Threlkel, 2019 CO 18, ¶ 15, __ P.3d __). Here, the trial court found that Cline was “certainly

not free to leave” and “[h]ad he moved quickly in any direction his liberty would have

been immediately curtailed by one of the [three] officers standing by.” As noted above,

the record clearly supports these inferences. Therefore, we are bound by the trial court’s

findings regarding the limitations on the defendant’s movements.1




1 Unlike the majority, I do not believe that the trial court simply conflated the standards
for seizure and custody. Maj. op. ¶¶ 19, 20 n.4. Instead, I believe that the record shows
how the trial court made a factual finding about the defendant not being free to leave in
support of its legal conclusion that the defendant had been restrained to a degree
commensurate with formal arrest.

                                              3
¶54    Third, the majority contends that, unlike Polander (who had drugs in her purse),

“it was not ‘apparent to all’ that Cline was going to be arrested for the contents of the

zippered pouch.” Id. at ¶ 44 (citing People v. Stephenson, 195 P.3d 617, 623 (Colo. 2007));

Polander, 41 P.3d at 705. But, like Polander’s purse, Cline’s pouch contained contraband,

the knowing possession of which constitutes a felony. See § 18-18-204, C.R.S. (2018)

(listing methamphetamine as a schedule II substance); § 18-18-403.5, C.R.S. (2018)

(making possession of a schedule II controlled substance a “level 4 drug felony”);

Polander, 41 P.3d at 701. Exposing such seized contraband to a seized defendant would

not cause any reasonable person in the defendant’s position to anticipate anything other

than cuffs and a trip to jail. We recognized as much in Polander, see 41 P.3d at 705, and

Polander should control here.

¶55    While the duration of Cline’s detention didn’t ipso facto transform his seizure

under the Fourth Amendment into custody under the Fifth Amendment, the majority

points to no cases in which detention of this length coupled with confrontation of this

sort is deemed anything less than custody. On the contrary, in People v. Null, we relied

on Polander in finding that the defendant’s “relatively lengthy” fifteen-minute detention,

which preceded the disclosure of a highly inculpatory preliminary breath test result, was

enough to trigger custody for Miranda purposes. 233 P.3d 670, 677 (Colo. 2010). A

ninety-minute detention preceding disclosure of a highly inculpatory pouch should fare

no differently.

¶56    Although the majority finds Figueroa-Ortega instructive, maj. op. ¶¶ 34–37, that

decision isn’t helpful here. After all, as the majority concedes, Figueroa-Ortega had not

                                            4
even been detained. Id. at ¶ 38; Figueroa-Ortega, ¶ 4, 283 P.3d at 692. Moreover, as the

majority also concedes, Figueroa-Ortega had not been confronted with direct evidence of

his guilt. Maj. op. ¶ 38; Figueroa-Ortega, ¶ 4, 283 P.3d at 692. Here, and in Polander, the

officer confronted the defendant about an ongoing crime that was being committed in the

officer’s presence. See 41 P.3d at 701. Such was not the case in Figueroa-Ortega. See

Figueroa-Ortega, ¶¶ 3–5, 283 P.3d at 692.

¶57    Under our precedent, when law enforcement officers detain a defendant for an

hour and a half and then confront him with direct evidence of his guilt of an ongoing

crime, they have curtailed the defendant’s freedom of action to a degree associated with

formal arrest. I would affirm the trial court’s order suppressing Cline’s statement about

the last time he used methamphetamine.

       I am authorized to state that CHIEF JUSTICE COATS and JUSTICE HART join in

this dissent.




                                            5
