
ATTORNEY FOR APPELLANT:      ATTORNEYS FOR APPELLEE:


MICHAEL B. TROEMEL     STEVE CARTER

Lafayette, Indiana     Attorney General of Indiana
      Indianapolis, Indiana

      JODI KATHRYN STEIN
      Deputy Attorney General
      Indianapolis, Indiana

      ZACHARY STOCK
      Deputy Attorney General
      Indianapolis, Indiana





                                   IN THE


                          SUPREME COURT OF INDIANA



TIVERIO SERRANO LUNA,  )
      )
      Appellant (Defendant below),      )  79S02-0212-CR-638
            )  in the Supreme Court
            v.   )
                 )  79A02-0201-CR-33
STATE OF INDIANA,      )  in the Court of Appeals
                 )
      Appellee (Plaintiff below). )


                APPEAL FROM THE TIPPECANOE SUPERIOR COURT II
                      The Honorable George Heid, Judge
                         Cause No.  79D02-0007-CF-71





                                May 14, 2003


SHEPARD, Chief Justice.


      Appellant Tiverio Luna drove himself to  the  police  station  because
the police asked to interview him about  possible  involvement  in  a  child
molestation.  Detectives interrogated  him  for  about  an  hour,  and  Luna
confessed.  He then drove himself home.

      The Court of Appeals held that Luna had  been  under  arrest  when  he
confessed, and reversed his conviction because he  had  not  been  read  his
Miranda rights.  We conclude Luna  was  not  under  arrest  and  affirm  his
conviction.



                        Facts and Procedural History


      On July 24, 2000, ten-year-old E.G. spent  the  night  at  her  friend
Arianna Luna’s home in Lafayette.  The  next  day,  E.G.  accused  Arianna’s
father, Tiverio Luna, of using his hands and mouth on  her  privates  during
the early morning hours after he had returned home from work.  The  incident
was reported  to  the  Lafayette  Police  Department  and  Child  Protective
Services that same day, July 25.

      The following day, July 26,  Detective  Jay  Rosen  of  the  Lafayette
Police Department found Luna at work and asked him to  come  to  the  police
station for about an hour to tell his side of the story.  Luna  agreed  and,
after some discussion, decided to  drive  himself  to  the  police  station.
Rosen told Luna both at the restaurant and at the station that  he  did  not
have to talk to the police, that he was not under arrest, and  that  he  was
free to leave at any time.

       At  the  station,  Detective  Rosen  and   Detective   Tom   Davidson
interviewed Luna in their office, which required a punch code to  enter  but
not to leave.  Rosen and Davidson sat behind the  desk  in  the  office  and
Luna sat on the opposite side, which was closest to the closed office  door.
 The initial conversation, which was unrecorded,  lasted  about  thirty-five
minutes.  Luna initially denied E.G.’s allegations.   Detective  Rosen  told
Luna that he wanted Luna to tell the truth and  that  he  thought  Luna  was
lying.  Luna then admitted the allegations.

      Luna preceded to give a taped statement to Rosen, during which  police
told him once again that he was not under arrest, that  he  could  leave  at
any time, and that he did not have to  answer  any  questions.   Luna  again
confessed to E.G.’s allegations.  The  whole  transaction  lasted  about  an
hour, after which Luna was allowed to leave the police station.

      Luna was arrested the next day on July  27.   The  State  charged  him
with two counts of child molesting, one as a class A Felony, the other as  a
class C felony.  The trial court denied Luna’s pre-trial motion to  suppress
his recorded confession.  Luna was found guilty on  both  counts,  but  only
sentenced on the class A felony  for  thirty  years.   A  divided  Court  of
Appeals reversed his conviction.  Luna v. State, No. 79A02-0201-CR-33,  slip
op. at 2 (Ind. Ct. App. September 17, 2002)  (unpublished  table  decision).
The majority held that Luna was “in custody and should have been advised  of
his Miranda rights.”  Id. at 6.  Judge Barnes dissented; he noted that  Luna
had been allowed to leave and observed, “I  believe  the  proof  is  in  the
pudding here.”  Id. at 8.  We granted transfer.



                         Miranda Rights and Custody



      In Miranda v. Arizona, 384 U.S. 436,  444  (1966),  the  U.S.  Supreme
Court held that when law enforcement officers  question  a  person  who  has
been “taken into custody or otherwise deprived of his freedom of  action  in
any significant way,” the person must first “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.”  See also Stansbury v.  California,  511  U.S.  318,
322 (1994).


      When determining whether a person was in custody or  deprived  of  his
freedom, “the ultimate inquiry is simply whether there is a  ‘formal  arrest
or restraint on freedom of movement’ of the degree associated with a  formal
arrest.”  California v. Beheler,  463  U.S.  1121,  1125  (1983);  see  also
Stansbury, 511 U.S. at 322.  We have held this is  determined  by  examining
whether a reasonable person in similar circumstances  would  believe  he  is
not free to leave.  Cliver v. State, 666 N.E.2d 59, 66 (Ind. 1996).  As  the
U.S. Supreme Court said in deciding whether  persons  questioned  on  a  bus
were in custody, “Only when the officer, by means of physical force or  show
of authority, has in some way restrained the liberty of  a  citizen  may  we
conclude that a ‘seizure’ has occurred.”  Florida v. Bostick, 501 U.S.  429,
433-34 (1991) (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)).


      Applying this objective test to the facts of this  case,  we  conclude
that a reasonable person in Luna’s circumstances  would  not  have  believed
himself  “under arrest or not free to resist the entreaties of the  police.”
 Torres v. State, 673 N.E.2d 472 (Ind. 1996).  Miranda  warnings  were  thus
not required.  Luna was repeatedly told that he was not under  arrest,  that
he was free to leave, and that he  did  not  have  to  talk  to  the  police
officers.  In fact, Luna drove to the  police  station  himself,  and  after
confessing to the crime, was allowed to leave the station on his own.

      The Court of Appeals’ relied on certain facts in holding that Luna was
under arrest:  Detective Rosen’s request  that  Luna  drive  to  the  police
station, the security of the office in the police  station,  Luna’s  initial
denial, and Detective Rosen’s insistence  on  Luna  telling  the  truth  and
implying that  Luna  was  lying.   The  question  presented  in  this  case,
however, is not whether there was a coercive environment.

      The decision in Oregon v. Mathiason, 429  U.S.  492  (1977),  involves
very  similar  facts  and  makes  the  point  rather   plainly.    Mathiason
voluntarily came to the police station, where he was informed  that  he  was
not under arrest.  The  police  interrogated  him  rather  aggressively,  he
confessed, and he left the police station after the  interview.   The  Court
held that Mathiason was  not  in  custody  “or  otherwise  deprived  of  his
freedom of action in any significant way.”  Id. at 495.
      Such a noncustodial situation is not converted to one in which Miranda
      applies simply because a reviewing court concludes  that  .  .  .  the
      questioning took place in a ‘coercive environment.’  Any interview  of
      one suspected of a crime  by  a  police  officer  will  have  coercive
      aspects to it, simply by virtue of the fact that the police officer is
      part of a law  enforcement  system  which  may  ultimately  cause  the
      suspect to be charged with a  crime.   But  police  officers  are  not
      required  to  administer  Miranda  warnings  to  everyone  whom   they
      question.  Nor is the requirement of warnings  to  be  imposed  simply
      because the questioning takes place in the station house,  or  because
      the questioned person is one whom the police suspect.

Mathiason, 429 U.S. at 495.  We conclude that Mathiason governs:   a  person
who goes voluntarily for a police interview, receives assurances that he  is
not under arrest, and leaves after the interview is complete  has  not  been
taken into “custody” by virtue  of  an  energetic  interrogation  so  as  to
necessitate Miranda warnings.

      The Court of Appeals relied  in  part  on  this  Court’s  decision  in
Dickerson v. State, 257 Ind. 562, 276 N.E.2d 845 (1972).  In Dickerson,  the
defendant was present at the police station when an officer  asked  to  talk
to him and advised  him  that  he  was  not  under  arrest.   The  defendant
consented to an interrogation, which  took  place  at  the  police  station.
Holding that  Miranda  warnings  were  required  under  such  circumstances,
Justice Hunter wrote:
      We  believe  that  an  interrogation,  initiated  by  the  police  and
      conducted in the compelling atmosphere of the  interrogation  room  at
      the police station, at a time when the investigation  had  focused  on
      the  accused,  constitutes  circumstances  which  would   indicate   a
      significant deprivation of freedom so as to require the  interrogating
      officers to advise the suspect of his constitutional rights.

Dickerson, 276 N.E.2d at 848.  It is apparent that Dickerson’s focus on  who
initiated the interview and the coercive nature of an interrogation  are  in
direct conflict with Mathiason, and to that extent Dickerson  is  overruled.




                                 Conclusion

      We affirm the trial court’s judgment.


DICKSON, SULLIVAN, BOEHM, and RUCKER, JJ., concur.








