                    IN THE COURT OF APPEALS OF IOWA

                              No. 3-968 / 12-2229
                              Filed May 14, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

THADDEUS JOHN ELLENBECKER,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Winnebago County, Stephen P.

Carroll (suppression) and DeDra L. Schroeder (trial), Judges.



      Thaddeus Ellenbecker appeals his second-degree arson and second-

degree burglary convictions. REVERSED AND REMANDED.



      Timothy L. Lapointe of The Law Offices of Timothy L. Lapointe, P.C.,

Mason City, for appellant.

      Thomas J. Miller, Attorney General, Tyler J. Buller and Scott D. Brown,

Assistant Attorneys General and Adam D. Sauer, County Attorney, for appellee.



      Heard by Doyle, P.J., and Tabor and Bower, JJ.
                                           2



BOWER, J.

         Former Forest City Police Officer Thaddeus Ellenbecker appeals his

convictions for second-degree arson (police building) and second-degree

burglary (another officer’s gun). See Iowa Code §§ 712.1, .3, 713.1, .5(1) (2011).

Ellenbecker claims the district court erred in declining to suppress statements he

made to agents of the Iowa Department of Criminal Investigation (DCI) in

violation of his constitutional rights.1

         We conclude Ellenbecker was in custody when a DCI agent seized him

and pinned him against the wall of his apartment complex before a second agent

shot him in the leg. Ellenbecker was still in custody when the DCI agents later

questioned him in the hospital without advising him of his Miranda rights.

Accordingly, we reverse and remand for a new trial.

I.       BACKGROUND FACTS AND PROCEEDINGS

         In July 2009 Ellenbecker was hired as a police officer by the Forest City

Police Department. Ellenbecker moved from Minnesota to Forest City, but his

wife and children maintained a residence in Minnesota.            Shortly thereafter,

Ellenbecker reported the Iowa house he was renting in a remote area had been

the subject of a drive-by shooting. In November 2010, after Ellenbecker helped

Officer Carrie Seiberlich start her patrol car, a rifle was stolen from her locked car

trunk.

         In early September 2011, the Forest City police station was vandalized,

including a spray-painted statement, “Pigs Will Die.” On October 1, 2011, shortly


1
 We need not address the other arguments Ellenbecker raises on appeal because we
conclude the custody issue is dispositive, requiring a remand for a new trial.
                                        3



after Ellenbecker finished his work shift, a fire occurred in the evidence room of

the Forest City police station.     Three days after the fire, on October 4,

Ellenbecker reported he had been assaulted in the police station’s garage.

       Based on the above incidents, the Forest City Chief of Police requested

the DCI conduct an investigation of Ellenbecker. All of the DCI interviews were

recorded.

       A. October 10—First Interview. After the fire, the Forest City police

department operated out of the county’s law enforcement center temporarily. On

October 10, 2011, DCI Agent Callaway asked Ellenbecker to answer some

questions and met with him at the center.           Agent Callaway recognized

Ellenbecker as a 2010 participant in a three-day training seminar Callaway co-

taught on “suspect interviews”—exploring circumstances when Miranda warnings

are required. Ellenbecker did not make any incriminating statements and denied

involvement in the fire.

       B.   October 20—Second Interview.        On October 20 Callaway again

asked Ellenbecker to answer questions. Callaway agreed to meet Ellenbecker at

the law enforcement center.       Ellenbecker voluntarily came to the building.

Ellenbecker needed to “buzz in” to enter the building, but he could exit at any

time by pushing on an exit door. Callaway testified2 Ellenbecker was familiar with

the building. Callaway did not have a visible weapon, and he asked Ellenbecker

to check his gun. Ellenbecker checked his gun without complaint and received



2
  References to the testimony of DCI Agents Callaway, Peterson, Krapfl, Turbett,
Hedlund, or Thiele, refer to the agents’ testimony at the June 18, 2012 hearing on
Ellenbecker’s motion to suppress evidence.
                                         4



the key to the lock box holding his gun. Ellenbecker possessed his cell phone at

all times.

       After a discussion about the assault, which Ellenbecker alleged occurred

on October 4, Ellenbecker agreed to take a polygraph test. DCI Agent Peterson

conducted the test and testified Ellenbecker was agreeable to testing. Peterson

told Ellenbecker “he was free to leave, the door was unlocked, [and] you can

leave anytime you want to.” Ellenbecker took and failed the polygraph test.

       After the test, Agent Callaway resumed his conversation with Ellenbecker,

who repeatedly asked if he was under arrest and whether he could leave.

Callaway repeatedly stated Ellenbecker was not under arrest and was “free to

go.” Callaway described Ellenbecker’s decision to leave the building: “One of the

last times [Ellenbecker] asked if he was free to go and I responded, yes, you are,

he gathered up his stuff and walked out, walked down the steps and out the front

door.” Ellenbecker left his gun behind in the lock box.

       Callaway followed Ellenbecker down the steps and continued to talk with

him outside the building. Callaway was concerned about Ellenbecker’s “fatalistic”

demeanor. When Ellenbecker started walking away from the building, Callaway

walked with him. Callaway testified he did not know where Ellenbecker was

going but accompanied him due to his hope Ellenbecker “would come back in

and talk to me, that I could persuade him to come back in and tell the truth. That

was the initial part of the walk.”

       The walk lasted “about seven blocks.”        Callaway testified Ellenbecker

talked about being a failure but also stated “he wasn’t going to hurt his wife or his
                                           5



kids.” As they walked, Callaway continued his efforts to “persuade [Ellenbecker]

to come back and talk,” telling Ellenbecker his situation is “not as bad” as he

“might think it is.” Callaway explained:

              Q. Were you concerned about [Ellenbecker’s] personal
       physical safety? A. Yes.
              Q. Why is that? A. Just from twenty-one years of law
       enforcement and thousands of contacts with the public . . . . I felt
       he was at the point where . . . he was talking about being a failure,
       very, very depressed.

       During the walk Ellenbecker used his cell phone to call his wife but did not

reach her. Callaway saw Ellenbecker brighten up when the walk ended at the

parking lot of Ellenbecker’s apartment complex and Ellenbecker saw his wife’s

car. Callaway testified Ellenbecker stated, “Let me go in and talk to my wife and

then I’ll come back out and talk to you.” Callaway asked Ellenbecker if he had

any guns inside.     Ellenbecker said he did not and entered the apartment

complex.

       Callaway stayed outside and called Agent Peterson, telling him

Ellenbecker wanted to continue talking after speaking with his wife. Callaway

asked Peterson to come to the apartment complex.

       After Ellenbecker had been inside about six minutes, Callaway saw him

come outside with his wife and two young children. The couple put the children

into a car. Callaway heard Ellenbecker tell his wife to leave. Ellenbecker then

yelled to Callaway to come over and talk to his wife. As this conversation was

starting, Ellenbecker walked away, heading toward the apartments. Callaway

testified because he did not know what Ellenbecker had already told his wife, he

asked Ellenbecker to come back. In response, Ellenbecker “stopped and pivoted
                                        6



. . . and pulled his coat back.” Callaway then saw Ellenbecker had a handgun.

Callaway again asked Ellenbecker to stop and come back, and Ellenbecker

turned and walked away.      Callaway ran, caught up to Ellenbecker near the

building, and “pinned him against the door of the apartment complex.” Callaway

and Ellenbecker struggled as Callaway attempted to prevent Ellenbecker from

“pulling his gun out of his holster.”   Callaway testified he took these actions

because he was concerned about what Ellenbecker intended to do inside the

apartment.

      Agent Peterson testified he heard yelling when he arrived at the complex

and then as he approached the struggling men. Peterson observed Ellenbecker

had a firearm on his hip and Callaway had Ellenbecker “pushed up against this

back door of the apartment.”    Peterson testified as the Callaway-Ellenbecker

struggle moved from the alcove’s door to the corner, he saw Ellenbecker’s “hand

go toward his gun.”     Peterson shot Ellenbecker in the leg and called 911.

Numerous officers arrived, including Iowa State Trooper Duenow.

      Callaway secured Ellenbecker by holding his hands while they waited for

the ambulance.    After Callaway was provided with a pair of handcuffs, he

handcuffed Ellenbecker. Callaway explained: “Once we had secured his gun and

gotten that away from him, once we secured the scene, made sure nothing else

was going to happen, the ambulance personnel took over the first aid . . . and the

handcuffs were removed.”
                                          7



       Ellenbecker was placed in the ambulance and taken to the hospital in

Mason City. During the ambulance ride, Ellenbecker was not in handcuffs, but

he was accompanied by Trooper Duenow.3

       At the suppression hearing, Callaway testified he did not place

Ellenbecker under arrest and told “everybody”—Ellenbecker, Ellenbecker’s wife,

the responding police officers, and the ambulance crew.

       C. Third Interview. At the Mason City hospital, Ellenbecker was treated

in the emergency room and then moved to a hospital room. Ellenbecker was not

restrained while in the hospital.

       When DCI Agents Krapfl and Turbett arrived at the hospital around 11:00

p.m. on the evening of the shooting, Troopers Duenow and Knutson were in

Ellenbecker’s room. The troopers were in uniform.4 Turbett testified that he

believed Duenow was Ellenbecker’s “acquaintance or even a friend level” and

neither trooper was there at his request or, to his knowledge, at the request of a

law enforcement officer. Agents Turbett and Krapfl were unarmed and dressed

casually in blue jeans. They did not place a guard outside Ellenbecker’s room.

       Agent Turbett spoke with a nurse, identified himself, stated they wanted to

talk to Ellenbecker, and asked the nurse about Ellenbecker’s medications. The

nurse told Turbett “it would be a good time,” Ellenbecker’s “ability to reason and

communicate would not be impaired.” While Turbett spoke with the nurse, Krapfl

spoke with Duenow in the hallway outside the room:


3
  Agent Peterson testified: “I thought I heard someone yell for [Duenow] to jump in the
ambulance with Thad Ellenbecker.”
4
  Agent Krapfl testified Duenow told him that he had been with Ellenbecker the entire
time.
                                          8



             Q. Whenever Duenow came out to talk to you, did Knutson
       stay behind? A. Actually I think Trooper Knutson came out of the
       room and went down the hallway, he may have been on the phone,
       and somebody—one of the nursing staff went in. There was
       always somebody in the room.

       After Turbett and Krapfl entered Ellenbecker’s room, Turbett initially

asked, “We just wanted to talk about what happened earlier tonight and [get your]

side of the story.   Would it be all right if we sit down and talk a little bit?”

Ellenbecker replied, “Yeah, Yeah.” The agents did not give Miranda warnings to

Ellenbecker. The door to his hospital room was open. Duenow stayed on the

floor but was not in the room during the interview. During the two breaks in the

interview process, Duenow returned to Ellenbecker’s room. Krapfl testified the

purpose of the breaks was so he could call “either Special Agent in Charge Larry

Hedlund or Chris Callaway” to pass on the information they obtained. Turbett

testified, “I don’t recall specifically who I spoke to.” Medical staff entered and left

the room during the interview.

       Ellenbecker and the agents discussed his non-hospital medications.

Ellenbecker talked about the incident at the apartment complex, stating he told

Callaway to stay outside and “had no intentions of hurting anybody other than

[himself].” Krapfl told Ellenbecker that Callaway had been concerned about him

and that is “the only reason he put handcuffs on you. Okay. He is not mad at

you, he didn’t arrest you.” Ellenbecker made several incriminating statements,

followed by:

              Ellenbecker: . . . . Am I [going to] get arrested tonight?
              Agent Krapfl: I don’t know yet. We just want to get all this
       stuff out and get to the truth about all this stuff and we’ll figure that
       out later.
                                        9



            Agent Turbett: [We] didn’t come here to do that; we just
      came to talk.

      During the interview, Ellenbecker repeatedly stated he was a failure.

Krapfl told him they were going to have Duenow come in and be with Ellenbecker

to make sure he did not hurt himself while the agents took a break. When the

agents returned, Krapfl explained to Ellenbecker that the agents had talked to the

medical staff and the staff had then arranged for a medical person to be in

Ellenbecker’s room all night.

      Ellenbecker’s wife and brother were in the room when the agents returned

from a break. After greetings were exchanged, Agent Turbett asked Ellenbecker,

“There [were] just a couple things I didn’t ask you; can I ask you a couple things

real quick?” Family members attempted to stop Ellenbecker from responding,

but Ellenbecker repeatedly silenced them, stating, “It’s fine.”       Ellenbecker

answered the additional questions. The interview started around 11:25 p.m. and

concluded around 1:35 a.m.

      D. October 21—Fourth Interview. Five hours later, on October 21 at

6:31 a.m., DCI Agent Hedlund called Ellenbecker and informed him DCI agents

were at his parents’ house in Minnesota.         Hedlund asked questions, and

Ellenbecker made incriminating statements.

      Later that morning, at 10:40 a.m., Hedlund and DCI Agent Anderson

arrived at the hospital to interview Ellenbecker. First, Hedlund told Ellenbecker

the lady sitting in his room was not a guard. Ellenbecker stated he understood

and knew why she was there—to make sure he did not harm himself. Shortly

thereafter, a doctor entered the room.      Hedlund asked three more questions
                                            10



before excusing himself, saying he would be right back. The doctor spoke with

Ellenbecker. Hedlund returned to the room. Ellenbecker made incriminating

statements. Ellenbecker told Hedlund that the agents who questioned him last

night “taught an interview and interrogation class.”

              Q. Well, if you had a guy handcuffed to the wall at the police
       department, he’s in custody, right? A. Yeah.
              Q. Okay. And what do you have to do before you talk to
       him if he’s chained to the wall or he’s in custody? A. If he doesn’t
       have the option to leave, you have to Mirandize him.
              Q. Right. That’s custodial interrogation. A. (Sigh)
       (Unintelligible).
              Q. Those agents that interviewed you last night . . . they
       didn’t Mirandize you, did they? A. No.
              Q. Yeah. I wouldn’t . . . have thought they did, because you
       obviously weren’t in custody, you’re in the hospital. That lady’s not
       here because she’s your jailer, she’s here because . . . . A.
       Because she’s a good woman.
              ....
              Q. You understand you’re not in our custody, right? A. Not
       yet.
              Q. Not yet. Well . . . . [Y]ou’re certainly not in custody.5

       Agent Anderson asked a few questions. Near the end of the interview

Hedlund again stated, “But you’re not in custody of the police department, you’re

not in custody of the DCI, you’re not in the custody of state patrol or the sheriff’s

office or anybody. You understand that?” Ellenbecker replied, “Should be.” The

interview ended around 11:50 a.m.

       At 12:35 p.m., forty-five minutes after the interview ended, Hedlund went

to the hospital room, asked Ellenbecker to wake up, and stated: “I’m officially

telling you you’re under arrest . . . . [A]s of this time you’re in custody.”



5
   We apply a consistent, objective reasonable-man standard, not a subjective,
reasonable-officer standard. It is irrelevant to our analysis that Ellenbecker had received
training on custodial interrogations.
                                           11



         Three days later, on October 24, Agent Thiele went to the hospital room

and asked Ellenbecker to talk with him. Ellenbecker declined.

         E. Pretrial and Trial. After Ellenbecker was charged, he filed a motion to

sever the trial on the burglary and the arson counts and a motion for change of

venue.     Both motions were granted.           Ellenbecker also filed a defense of

diminished responsibility.

         In May 2012 Ellenbecker filed a motion to suppress,6 asserting the DCI

agents’ questioning on October 20-21 violated his “constitutional rights under

both the Constitution of the United States and the Constitution of the State of

Iowa.”     Ellenbecker claimed his statements were without the protection of

Miranda v. Arizona, 384 U.S. 436, 444 (1966) (requiring suppression of

statements made “in custody” without adequate warnings).

         At the evidentiary hearing on the motion, defense counsel claimed

Ellenbecker was in custody on October 20—although the agents told him he was

free to leave the law enforcement center, “he’s essentially hounded to the

doorway . . . . [Ellenbecker] is not allowed to do as he would like at that point in

time, in fact he’s shot when he tries to do what he would like.” Counsel also




6
  Ellenbecker also claimed his incriminating statements were involuntary. See Colorado
v. Connelly, 479 U.S. 157, 167 (1986) (“We hold that coercive police activity is a
necessary predicate to the finding that a confession is not ‘voluntary.’”). Defense
counsel claimed if Ellenbecker seemed suicidal, then the agents were on notice “he has
some mental health issues that need to be addressed.” Counsel also claimed the
incriminating statements after Ellenbecker was given “pain medication” were involuntary.
A Mason City hospital pharmacist testified to the medications Ellenbecker received in the
hospital. On cross-examination, the pharmacist admitted he was not a part of
Ellenbecker’s treating team, the drugs given “are within normal therapeutic levels,” and
he had no idea “what specific effect” the drugs had on Ellenbecker.
                                       12



claimed custody on October 21 is shown by Ellenbecker being “continuously”

within the presence of law enforcement at the hospital.

      In September 2012 the district court denied Ellenbecker’s motion to

suppress, stating:

              In summary, officers did not summon Ellenbecker to the
      hospital. The agents were courteous and Agents Krapfl and
      Turbett were in civilian clothes. Defendant was not handcuffed
      during the interview or otherwise restrained by the officers.
      Defendant was not isolated. Doctors, nurses, and family members
      all had access to the Defendant. Defendant was not constrained by
      the police officers. Defendant’s freedom of movement was not
      restricted by the police officers but only by his medical condition.
      No guards were posted at the Defendant’s hospital door until after
      his arrest. They were not there during the interview. The agents
      checked on the Defendant’s medical condition and on the drugs he
      ingested before questioning the Defendant. The Defendant was
      cooperative. In fact, at one point when admonished by his brother
      not to talk to law enforcement officers, he admonished his brother,
      telling him to keep quiet.

The court concluded Ellenbecker “was not in custody,” and his statements “were

made voluntarily and were free from coercion.”

      Ellenbecker waived his right to a jury trial, and bench trials were held in

September (arson) and October (burglary) 2012. In separate November rulings,

the court found Ellenbecker guilty of second-degree arson and second-degree

burglary. This appeal followed.

II.   Standard of Review

      “Under both the State and Federal Constitutions,” we review constitutional

claims de novo. Ennenga v. State, 812 N.W.2d 696, 701 (Iowa 2012).
                                        13



III.   Custodial Interrogation

       On appeal, Ellenbecker asserts a Miranda violation. See Miranda, 384

U.S. at 444. To bring a viable claim, Ellenbecker must have been “in custody”

during an “interrogation.” See State v. Davis, 446 N.W.2d 785, 788 (Iowa 1989).

Iowa has adopted the Miranda court’s “definition of custodial interrogation as the

‘questioning initiated by law enforcement officers after a person has been taken

into custody or otherwise deprived of his freedom in any way.’”       Id. (quoting

Miranda, 384 U.S. at 444).

       This court’s determination of “custody” is based “on the objective

circumstances of the interrogation, not on subjective views harbored either by the

officer or the person being questioned.” State v. Countryman, 572 N.W.2d 553,

557 (Iowa 1997) (stating the length of a three-hour conversation with breaks did

not render the interrogation custodial). The objective, “reasonable person” test

we apply is “whether a reasonable person in the [defendant’s] position would

understand himself . . . to be in custody.” Id. at 558. We examine the totality of

the circumstances, guided by four factors: “(1) the language used to summon the

individual; (2) the purpose, place, and manner of interrogation; (3) the extent to

which the defendant is confronted with evidence of [his] guilt; and (4) whether the

defendant is free to leave the place of questioning.” Id.

       The State argues Ellenbecker was not in custody because the agents’

actions at the apartment complex were necessary for “medical” and “public

interest” purposes—to insure Ellenbecker would not hurt himself. The district

court agreed and found: “Although defendant was disabled by being shot by
                                         14



Agent Peterson, he was in that position because of his own actions.               [The

agents] reacted to the defendant out of a well-grounded fear for their own safety,

the safety of the defendant, and of his family.”

       The opposite conclusion was reached by the Maine Supreme Judicial

Court in State v. Grant, 939 A.2d 93, 101-02 (Me. 2008), where roadside officers

used “a considerable degree of force to subdue” Grant, including using a Taser

on him repeatedly.      The officers handcuffed Grant before and during his

ambulance ride to the hospital, where he underwent surgery. Grant, 939 A.2d at

101. We agree with and adopt the Maine court’s analysis:

               [T]he [district] court concluded that the restraints were simply
       standard operating procedure by the police and that the custody
       was “medical,” and not for law enforcement purposes. We disagree
       with these legal conclusions.            Whether the restraint was
       accomplished pursuant to standard operating procedure is
       irrelevant to a reasonable suspect’s objective understanding of the
       limits on the suspect’s liberty. A defendant may be in custody when
       physically restrained by law enforcement officers in an unusual
       setting or when restrained according to common police policy and
       practice.

Id. at 102 (emphasis added).

       As in Grant, we conclude Ellenbecker was in custody from the point the

DCI agent chased him, caught him, struggled with him, and prevented him from

returning to his apartment by physical force. This custodial restraint continued

uninterrupted as Ellenbecker was shot by a different agent and physically

restrained until an ambulance arrived—including a period of restraint with

handcuffs. A trooper rode in the ambulance to the hospital. Despite the agents’

statements to the contrary during the subsequent hospital interviews, the overall

facts and circumstances unequivocally show Ellenbecker was not “free to leave”
                                        15



and “a reasonable person in [his] position would have understood himself . . . to

be in custody”—his freedom of action was foreclosed by the DCI agents. See

Countryman, 572 N.W.2d at 558.

      The State also claims Ellenbecker was not in custody in the hospital

because the only restraint imposed on his freedom of movement was his need

for medical treatment. Iowa case law attempts to distinguish “cases in which

hospital interrogation was marked by police detention and coercion and those

cases in which the patient’s detention resulted purely from ongoing medical

treatment.” State v. Cain, 400 N.W.2d 582, 584 (Iowa 1987) (ruling defendant

was not in custody during brief questioning while undergoing treatment at the

hospital emergency room—defendant had voluntarily come to the emergency

room for treatment without any prior police presence).

      The district court set out factors to be considered in determining whether

Ellenbecker had been subjected to custodial interrogation in the hospital:

              (1) whether non-law enforcement agents (such as medical
      staff and visitors and family of the patient) were present during
      questioning;
              (2) whether there was a constant police presence at the
      hospital, including the presence of a police guard;
              (3) whether the police prevented the criminal suspect from
      leaving the hospital;
              (4) whether the patient agreed to the police interview;
              (5) whether the suspect was under arrest at the time of the
      interview;
              (6) whether the interrogating officers were in uniform and
      armed; and
              (7) whether the defendant had been transferred to the
      hospital after being previously within police custody.

(Emphasis added.); see Kimberly J. Winbuth, Annotation, What Constitutes

Custodial Interrogation at Hospital by Police Officer Within Rule of Miranda v.
                                        16



Arizona Requiring that Suspect Be Informed of His or Her Federal Constitutional

Rights Before Custodial Interrogation—Suspect Hospital Patient, 30 A.L.R. 6th

103 (2008). The district court’s starting point for its analysis was the time when

Ellenbecker was in the hospital—“to begin with, Ellenbecker was not summoned

to the hospital setting. Police officers did initiate contact . . . but before they

interviewed him, they spoke with hospital personnel about his medical condition.”

       We, however, turn to factor seven—whether Ellenbecker was transferred

to the hospital “after being previously within police custody.”     We again find

guidance in the Grant decision:

              The State accurately observes that the mere fact that a
       suspect cannot leave the hospital as a result of injury or illness
       does not place that person in law enforcement “custody.” In this
       case, however, it is the other circumstances surrounding the
       restraints on Grant’s liberty that render his interrogation custodial.
       Indeed, the Ninth Circuit . . . makes this point eloquently:
              This is not to say that an individual would never be “in
              custody” when held for medical treatment in a
              hospital. If the police took a criminal suspect to the
              hospital from the scene of the crime, monitored the
              patient’s stay, stationed themselves outside the door,
              arranged an extended treatment schedule with the
              doctors, or some combination of these, law
              enforcement restraint amounting to custody could
              result.

939 A.2d at 102 (quoting United States v. Martin, 781 F.2d 671, 673 (9th Cir.

1985) (concluding suspect was not in custody when “there are no facts to

indicate law enforcement officials were in any way involved in Martin’s

hospitalization”)).   Many of the Grant factors are present here and show

Ellenbecker’s custody was not somehow interrupted and discontinued such that

Miranda warnings were rendered unnecessary.
                                           17



       Specifically, when he was called in for a second interview and thereafter

failed a polygraph test, it was clear Ellenbecker “was the focus of the

investigation.” See Grant, 939 A.2d at 103. Ellenbecker was in police custody at

the time he was physically restrained and shot at his apartment complex. Not

only did the DCI agents initiate contact with Ellenbecker in the hospital, their prior

custodial actions put him in the hospital and an officer accompanied him on the

ambulance ride to the hospital. Although the DCI agents were dressed casually

and did not threaten or coerce Ellenbecker during questioning, it is undisputed

there was a significant police presence at the hospital—basically he was “under

guard.” For example, two officers, one of whom rode with Ellenbecker in the

ambulance, were in the room when the DCI agents arrived. The ambulance-ride

officer remained on the floor, although he was not in the room during the agents’

questioning. But he returned to the room during both breaks the DCI agents took

in their two-hour interrogation on that first night.

       Also on the first night, the DCI agents took the initiative to contact medical

staff and arrange for Ellenbecker to have medical staff constantly present in his

room after they left the hospital at 1:35 a.m. The hospital complied and the

medical staff person was in the room when different DCI agents returned in the

morning to question him. Ellenbecker was arrested at 12:30 p.m., shortly after

this questioning concluded.

       While the DCI agents told Ellenbecker the arrangement with medical staff

was to insure he would not harm himself, objectively such a medical decision is

within hospital expertise. The initiation, specific direction, and arrangements for
                                           18



staffing made by law enforcement leads to the conclusion Ellenbecker’s custody

continued uninterrupted during his hospitalization. At no point during his hospital

stay was Ellenbecker left alone in his room. Clearly, law enforcement acted to

“monitor” his hospital stay. See Martin, 781 F.2d at 673.

       Based on these facts and circumstances and using an objective test, a

reasonable person in Ellenbecker’s position would have understood that he

remained in police custody at the hospital, in spite of the agents’ frequent and

continued assurances he had not been arrested when handcuffed and was not

under arrest or in custody at the hospital.7            The October 20-21 hospital

interrogations constituted custodial interrogations that needed to be preceded by

Miranda warnings. No one fact is controlling but taken together, the facts compel

this conclusion. Any statements made by Ellenbecker after he was taken into

custody at the apartment complex are therefore inadmissible. We reverse and

remand for further proceedings in accordance with this opinion.

       REVERSED AND REMANDED.




7
 “The [agents] doth protest too much, methinks.” William Shakespeare, Hamlet act 3,
Sc.2, line 220 (one’s excessive repetition of a statement to the point others suspect the
opposite of what one says).
