No Custody, Hence No Miranda Warning Required, Despite 85-Minute Detention and Questioning

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Colorado v. Davis, 2019 (Colo. 2019)

Jacob Davis lived in the basement of his father and stepmother’s residence. At 0600, two officers went to the home to investigate a report of sexual assault. When they arrived, the alleged victim, a female minor, was in the kitchen with Davis’ father and stepmother. The officers went to the basement with Davis’ stepmother. An officer called out to Davis several times, hearing no response.

One officer entered Davis’ room and shook his leg as he lay in his bed. The officer asked Davis to sit up and began to ask Davis open-ended questions about several topics, including the nature of his relationship with the victim. This interaction lasted between five and seven minutes. Davis asked to put on sweatpants and an officer retrieved a pair for him. Davis unsuccessfully tried to find his glasses in the bed; an officer told him they would find his glasses later. The officers then directed Davis to a game room down a short hallway. They did not physically touch Davis to escort him, nor was he handcuffed.

The officers asked Davis to sit in a chair next to the wall while they briefly left him alone and went upstairs to speak with the victim. One officer soon returned to remain with Davis for officer safety reasons. Davis and the officer chatted about sports, law enforcement, Davis’ family circumstances, and other topics unrelated to the investigation.

The first officer came back downstairs and questioned Davis about the alleged assault for about 10 minutes. He stood about 5 feet from Davis’ chair, spoke in a conversational tone and used open-ended questions. (Talk nice, think mean.) The second officer, standing a few feet away, twice told Davis that telling the truth was for Davis’ benefit and he needed to be honest. Davis admitted to sexual contact with the victim but contended it was consensual.

The first officer went back upstairs. The second officer and Davis chatted for 20 minutes, again about matters unrelated to the investigation. Meanwhile, a third officer arrived to take over the investigation (due to the shift change to the day watch). The third officer determined the first two officers “still hadn’t made a conclusion yet on exactly what happened” and went to the basement to question Davis. She explained to him she had just arrived and asked him to start from the beginning. This officer also spoke with Davis in a conversational tone. (Talk nice, think mean.)

Davis described a text exchange with the victim and the officer asked to see the messages. Two officers walked down the hall with Davis, where he found his phone in the bed sheets. He showed the messages to the third officer. She then went back upstairs, leaving Davis with the first two officers. The officers continued to chat amiably with Davis. He asked to show the officers his favorite Denver Broncos jersey and they allowed him to retrieve the jersey from an adjoining room. Davis also asked to use the restroom but was initially denied permission because the officers wanted to collect his clothing as evidence. Approximately 85 minutes after the officers first arrived at the home, the third officer went back downstairs and arrested Davis.

Thus, the Miranda rule applies when there is both custody and interrogation. The now-famous Miranda warning is not actually contained verbatim in the ruling; it was developed to summarize the rights articulated in the Court’s decision.

Davis was charged with two counts of sexual assault and one count of contributing to the delinquency of a minor. He asked the trial court to suppress his statements, arguing he was subjected to custodial interrogation without the benefit of a Miranda warning.

The trial judge ruled Davis was in custody for purposes of Miranda. The court found the encounter to be an arrest from the time he was awakened in his bed. The court conceded the officers never displayed weapons, used threatening language or told Davis he could not leave the basement. But it found a reasonable person in Davis’ circumstances would not have felt free to leave the basement. The court also cited the early morning hour, the 85-minute interrogation and the minor restrictions on Davis’ movements in the basement.

The core ruling in the Miranda decision (Miranda v. Arizona, 384 U.S. 436 (1966)) states 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.” Thus, the Miranda rule applies when there is both custody and interrogation. The now-famous Miranda warning is not actually contained verbatim in the ruling; it was developed to summarize the rights articulated in the Court’s decision.

The Colorado Supreme Court reversed the trial court and held Davis was not in custody during his pre-arrest interrogation for purposes of Miranda. The Court cited nine factors articulated in its prior decisions that guide the determination of custody:

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

The Court conceded Davis was detained 85 minutes, questioning was interspersed with casual conversation as one of the officers spoke with the victim in another part of the home, an officer stood between Davis and the stairway, and Davis was apparently awakened, questioned and separated from family members upstairs.

Although these circumstances may have suggested Davis was in custody, particularly when considering each factor separately, the Court found the totality of the circumstances did not. The Court emphasized “the neutral location, the lack of force or physical restraint, and the conversational tone of questioning (talk nice, think mean) indicated that a reasonable person in Davis’ position would not have felt restrained to the degree associated with formal arrest at the time he made the challenged statements.”

Though the Court did not identify any particularly persuasive factor, the opinion did note an aggressive, commanding tone and “highly confrontational and accusatory questions” led the court to hold a defendant was in custody in another case, People v. Minjarez (81 P.3d 348 (Colo. 2003)). Only rarely will a single factor convert an investigatory detention into custody, but the conversational, non-accusatory tone of voice by an officer is often cited as significant. Again – talk nice, think mean.

This blog was featured in our Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys. Subscribe here!

Ken Wallentine

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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