NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal 

revision before publication in the Vermont Reports. Readers are requested to notify the Reporter 

of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 

State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made 

before this opinion goes to press.

2016 VT 110

No. 2015-076

State of Vermont Supreme Court

On Appeal from

 v. Superior Court, Bennington Unit,

Criminal Division

John Powers September Term, 2015

David A. Howard, J.

Christina Rainville, Bennington County Chief Deputy State’s Attorney, Bennington, for

 Plaintiff-Appellant.

Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellee.

William H. Sorrell, Attorney General, and John Treadwell, Assistant Attorney General, 

 Montpelier, for Amicus Curiae Office of Attorney General.

PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

¶ 1. DOOLEY, J. In this interlocutory appeal, the State challenges the trial court’s 

suppression of two sets of statements that defendant made to his probation officer. The trial court 

determined that suppression was warranted because the probation officer did not provide defendant 

with the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966). The State argues that 

Miranda warnings were not required because defendant was not in custody at the time he made his 

incriminatory statements. We agree with the State with respect to the first set of statements and 

reverse the decision to suppress those statements; we reverse and remand the trial court’s decision 

with respect to the second set of statements for further findings on the issue of custody and a new 

decision consistent with this opinion.
2

¶ 2. At the time of the alleged offense, defendant was on a community furlough under 

the supervision of the Vermont Department of Corrections (DOC) following a conviction for a 

forcible sexual assault on a thirteen-year-old girl. A probation officer supervised defendant on 

furlough from 2009 until his arrest in April 2014. During that period, the officer and defendant

met approximately twice a week. Defendant was on the “highest level of supervision,” such that

probation officers were permitted to visit his residence at any time and inspect it for any violations 

of the special restrictions placed on sex offenders. Prior to this case, the probation officer 

investigated four alleged probation violations by defendant, including possession of pornography, 

peering into female neighbors’ windows, and staring at nurses at his mother’s convalescent center. 

In response, the probation officer imposed graduated sanctions in three instances and incarceration 

in one. 

¶ 3. On April 3, 2014, a resident of defendant’s apartment building phoned the 

probation officer to inform him that police officers were at the complex to investigate reports that 

defendant had drilled holes in a wall to view his teenaged neighbor in her bedroom in her family’s 

apartment. The probation officer and another community correctional officer with the Bennington 

office of DOC went to defendant’s residence to investigate. The probation officer carried no 

weapons; the other community correctional officer carried mace and wrist restraints. Upon their 

arrival, the officers observed a police car in front of the apartment next to defendant’s unit. They 

knocked at defendant’s back door. Defendant answered, and the officers told him they needed to 

enter the apartment to speak with him. Once they entered the apartment, the probation officer

instructed defendant to sit down on the living room couch and asked the community correctional 

officer to go upstairs to see if there was any evidence of drilled holes in a wall. Neither officer 

placed defendant in restraints. 

¶ 4. Thereafter, the probation officer began to question defendant, asking if anything 

was going on or if defendant wanted to report something. The probation officer did not mention 

the call he had received from defendant’s neighbor. Although defendant “initially acted confused” 
3

and appeared “visibly nervous,” the probation officer continued to ask if defendant needed to 

report anything until defendant finally responded “I screwed up; I think I screwed up.” At that 

point, the community correctional officer returned and announced he had found holes in the wall 

of the upstairs bedroom. The probation officer asked defendant if he had made the holes, and 

defendant admitted that he had drilled them three days earlier. Defendant also admitted that he 

had been struggling with fantasies about his teenaged neighbor but denied that he masturbated 

while viewing her through the hole. The probation officer then went upstairs to view the holes, 

which had been covered with pictures and stuffed with toilet paper, and confirmed that it was 

possible to see into the girl’s bedroom. After inspecting the holes, the probation officer returned 

downstairs to inform defendant he would be taken into custody and to place restraints on 

defendant’s wrists. He then went to the apartment of the teenaged neighbor to speak with the 

police officer present. He informed the police officer of his presence in defendant’s apartment and 

that he had placed defendant in custody. The police officer eventually came into defendant’s 

apartment and took a videotaped confession from him.

1

¶ 5. After defendant spoke to the police officer, the probation officer transported 

defendant to the DOC office for processing, to be held under a charge that his behaviors constituted 

a violation of his furlough conditions. Defendant remained in wrist restraints until he arrived at 

the DOC office, at which point he was transferred into shackles and leg restraints. Defendant 

completed the necessary paperwork, and the probation officer took him outside to have a cigarette 

in the parking lot. They then returned to the DOC office, where DOC employees were continually 

coming in and out of the room in order to check schedules and obtain paperwork. The probation 

officer “started” a second conversation with defendant about the events that had transpired that 

day. During their conversation, defendant admitted that he had made the holes three months 

earlier, that he regularly fantasized about his neighbor, that he had seen her naked on three 

 

1 The trial court suppressed this statement, and a later one made to the police officer. The 

State has not appealed from these suppression decisions, and we do not address them here. 
4

occasions and in her underwear over twenty times, and that he had masturbated while watching 

her. The probation officer estimated that approximately twenty to twenty-five minutes elapsed 

from the arrival at the DOC office to the conclusion of defendant’s second set of statements, with 

their conversation about the offending behaviors occurring about ten minutes after their arrival. 

Following this statement, the probation officer called the police officer to come to the DOC office

to interrogate defendant. 

¶ 6. Defendant was charged with thirteen counts of voyeurism and one count of stalking. 

After a mistrial, defendant moved to suppress four sets of statements: two to the probation officer 

and two to the police officer. Following a December 2014 hearing, the court granted the motion. 

It found that the statements to the probation officer were inadmissible under State v. Steinhour, 

158 Vt. 299, 302, 607 A.2d 888, 890 (1992), which it read to preclude the use of statements made 

by probationers to probation officers in a new criminal proceeding unless Miranda warnings were

given. The court also found the statements and admissions to the police officer inadmissible 

because the officer’s recitation of Miranda warnings was “woefully inadequate,” rendering 

defendant’s resulting waiver invalid. 

¶ 7. This interlocutory appeal on the two sets of statements made to the probation officer 

followed. The State argues that the court’s conclusion that a probation officer is obligated to give

Miranda warnings when an interview might result in new criminal charges is legally wrong. It 

maintains that Miranda does not apply to either probation officer interview because defendant was 

not in police or coercive custody. 

¶ 8. In reviewing a motion to suppress, we uphold the trial court’s findings of fact absent 

clear error; we review the court’s legal conclusions de novo. See State v. Simoneau, 2003 VT 83, 

¶ 14, 176 Vt. 15, 833 A.2d 1280. In determining whether an individual is in custody for Miranda

purposes, the U.S. Supreme Court requires three discrete inquiries: first, an examination of the 

circumstances surrounding the interrogation, a purely factual inquiry; second, based on the facts 

found, an inquiry into whether a reasonable person under those circumstances would have felt free 
5

to terminate the interview and leave.

2

 In recent cases, the Court added a third inquiry: whether 

the environment presents “the same inherently coercive pressures as the type of station house 

questioning at issue in Miranda.” Howes v. Fields, __ U.S. __, __, 132 S. Ct. 1181, 1190 (2012). 

Whether the facts meet the two latter standards is a question of law, which we review de novo. In 

re E.W., 2015 VT 7, ¶ 9, 198 Vt. 311, 114 A.3d 112.

¶ 9. Before embarking on our analysis, we make one general observation. In our review 

of case law from other jurisdictions, the only decisions from courts throughout the country that 

have suppressed statements from defendants because a probation officer failed to give Miranda

warnings to a defendant prior to the statement reached these decisions in situations where the 

defendant was incarcerated3or handcuffed4at the time of the statement. This is true regardless of 

 

2 Neither defendant nor the trial court has advanced any argument that this case would be 

decided differently under the Vermont Constitution. Consequently, we do not address that 

argument here. 

3 See, e.g., Bradley v. State, 559 A.2d 1234, 1245-46 (Del. 1989) (finding statements made 

without Miranda warnings to director of pre-release services at department of corrections in jail 

regarding possible parole violation were inadmissible in prosecutor’s case and deemed subject of 

custodial interrogation); State v. Roberts, 513 N.E.2d 720, 725 (Ohio 1987) (“[S]tatements by an 

in-custody probationer [in jail at the time] to his probation officer are inadmissible in a subsequent 

criminal trial, where prior to questioning, the probation officer failed to advise the probationer of 

his Miranda rights . . . .”); State v. Sargent, 762 P.2d 1127, 1131-33 (Wash. 1988) (concluding that 

probation officer’s interview of defendant as part of preparation of pre-sentence report, despite 

being routine post-conviction procedure, necessitated Miranda warnings, where defendant was in 

jail, officer asked “Did you do it?” and said defendant should “come to the truth” with himself, 

and officer was undeniably an officer of the state with allegiance due to state, not defendant). 

Sargent is distinguishable from the present case because in Sargent no probationary relationship 

existed between the defendant and the officer at the time of the interview. Although the probation 

department is statutorily required to conduct presentence interviews, that does not mean the kind 

of rehabilitative relationship evidenced in this case is created—the officer was acting as an 

information-gatherer for the court, rather than as someone concerned with the defendant’s 

rehabilitation and welfare. See People v. Cortijo, 684 N.Y.S.2d 435, 440 (Sup. Ct. 1998). We 

note that the holdings in Bradley and Roberts are unlikely to have survived the holding of the U.S. 

Supreme Court in Howes, __ U.S. at __, 132 S. Ct. at 1189, that the interrogation of an incarcerated 

prisoner about a separate crime did not require Miranda warnings.

4 See People v. Coleman, 2015 IL App (4th) 140730, 37 N.E.3d 360; Commonwealth v. 

Cooley, 118 A.3d 370 (Pa. 2015). These decisions rest on the rationale that the application of 

handcuffs before the probationer is questioned creates an arrest. There is no handcuffing or other 

pre-questioning arrest in this case; defendant was handcuffed after he confessed.
6

whether the defendant was on probation, parole, or furlough, and regardless of the title of the 

corrections officer who took the statement. It is even true in cases where the statement was taken 

by a law enforcement officer who acted in concert with the corrections officer. Because the 

situation in this case is relatively common, there are many decisions that align with our decision 

here that Miranda warnings were not required. We have listed a representative sample in this 

footnote.5

¶ 10. We begin with the first set of statements to the probation officer taken in 

defendant’s home. As the U.S. Supreme Court recently reaffirmed in Howes, custody refers to a 

specific set of circumstances that are “thought generally to present a serious danger of coercion.” 

__ U.S. at __, 132 S. Ct. at 1189. The first step of the inquiry is “to ascertain whether, in light of 

the objective circumstances of the interrogation,” a reasonable person would have felt “he or she 

was not at liberty to terminate the interrogation and leave.” Id. (quotations and alteration omitted). 

Relevant factors include “the location of the questioning, its duration, statements made during the 

interview, the presence or absence of physical restraints, and the release of the interviewee at the 

end of the interrogation.” Id. (citations omitted); see also E.W., 2015 VT 7, ¶ 15; State v. Sullivan, 

2013 VT 71, ¶ 29, 194 Vt. 361, 80 A.3d 67; State v. Muntean, 2010 VT 88, ¶ 19, 189 Vt. 50, 12 

A.3d 518. The second step is to determine “whether the relevant environment presents the same 

inherently coercive pressures as the type of station house questioning at issue in Miranda.” Howes, 

__ U.S. at __, 132 S. Ct. at 1190. 

 

5

 United States v. Cranley, 350 F.3d 617 (7th Cir. 2003); Chruby v. Gillis, 54 F. App’x 

520 (3d Cir. 2002); United States v. Hines, No. 1:12-cr-00204-JAW, 2013 WL 1149310 (D. Me. 

Mar. 1, 2013); United States v. Muhammad, 903 F. Supp. 2d 132 (E.D.N.Y. 2012); United States 

v. Oakes, No. Crim. 00-76-P-C, 2001 WL 30530 (D. Me. Jan. 10, 2001); McAllister v. State, 807 

A.2d 1119 (Del. 2002); State v. Christensen, 360 P.3d 348 (Idaho Ct. App. 2015); State v. 

Schroeder, No. 90,011, 2004 WL 117340 (Kan. Ct. App. Jan. 23, 2004) (nonprecedential); State

v. Kittredge, 2014 ME 90, 97 A.3d 106; People v. Elliott, 833 N.W.2d 284 (Mich. 2013); State v. 

Hedlund, No. A08-0266, 2009 WL 1373670 (Minn. Ct. App. May 19, 2009) (nonprecedential); 

State v. Hermosillo, 2014-NMCA-102, 336 P.3d 446 (N.M. Ct. App.); State v. Scott, 765 N.E.2d 

930 (Ohio Ct. App. 2001).
7

¶ 11. The State argues that the issue before us is controlled by the first step in the inquiry 

and the answer at that step is controlled by the U.S. Supreme Court decision in Minnesota v. 

Murphy, 465 U.S. 420 (1984). In Murphy, the defendant was on probation for a sex-related charge, 

conditions of which included mandatory participation in a treatment program for sexual offenders, 

periodic reporting to his probation officer, and an obligation to be truthful with the officer “in all 

matters.” Id. at 422. During one of his counseling sessions, defendant admitted to a rape and 

murder seven years earlier, and the counselor informed his probation officer of this admission. Id. 

at 423. The officer wrote to defendant and asked him to contact her to discuss a treatment plan for 

the rest of the probationary period. Id. The officer did not disclose that she intended to confront 

defendant with his confession at the meeting. When they met in her office, the officer revealed 

the information she had learned from the counselor. Although the defendant became angry and 

stated he “felt like calling a lawyer,” he admitted over the course of the conversation to the rape 

and murder and tried to persuade the officer further treatment was unnecessary. Id. at 424. At the 

end of the conversation, the officer informed the defendant that she had an obligation to tell the 

police of the newly disclosed crime. Id. 

¶ 12. After he was charged with first-degree murder based on his newly disclosed 

conduct, the defendant sought to suppress his confession on the grounds it was obtained in 

violation of his rights under the Fifth and Fourteenth Amendments to the U.S. Constitution. Id. at 

425. Specifically, the defendant argued that he should have been given Miranda warnings before 

the probation officer questioned him. The Minnesota Supreme Court accepted that argument on 

the basis that the coercive powers of the probation officer over the probationer made the 

interrogation the equivalent of custodial interrogation addressed in Miranda such that equivalent 

warnings were required in the probation interrogation case before the interrogation could be 

admitted in a criminal case. State v. Murphy, 324 N.W.2d 340, 344 (Minn. 1982). 

¶ 13. The U.S. Supreme Court rejected the ruling of the Minnesota Supreme Court, ruling 

that the general obligation to appear before a probation officer and answer truthfully her questions 
8

about incriminating conduct—akin to that imposed on grand jury witnesses—did not automatically 

convert otherwise voluntary statements into compelled ones for purposes of Miranda. Murphy, 

465 U.S. at 431. The defendant was free to assert the privilege against self-incrimination and 

would have suffered no penalty for choosing to do so. Id. at 429. Indeed, there was no direct 

evidence that the defendant “confessed because he feared his probation would be revoked if he 

remained silent” and there was nothing in the Minnesota probation conditions to suggest probation 

was conditional on waiving Fifth Amendment rights regarding future criminal prosecutions. Id. 

at 437. 

¶ 14. The Supreme Court went on to analyze the case under traditional custody factors 

and concluded that the defendant was not in custody for Miranda purposes since there was no 

formal arrest and no restraints on his freedom of movement. Id. at 430. The defendant was “not 

physically restrained” and could have left the probation office, suggesting it would have been 

unreasonable for him to believe that terminating the meeting would have led to a revocation of 

probation. Id. at 433. The Court concluded that the psychological pressures stemming from the 

unfamiliar interrogation environment that Miranda warnings seek to guard against were simply 

not present, as the defendant had met regularly with his probation officer and was familiar with 

her and her office. Id. 

¶ 15. We agree with the State that Murphy answers much of defendant’s argument on the 

special need for Miranda warnings in probation officer interview cases where the State seeks to 

admit the result of that interview in a separate criminal case. After Murphy, any such case must 

be analyzed under traditional factors to determine whether a custodial interrogation, as defined in 

Miranda has occurred. See Kittredge, 2014 ME 90, ¶¶ 7, 18 (finding no custody where defendant 

asked to come to probation office and was interrogated there by two uniformed, armed state 

troopers where: troopers told defendant “he was not under arrest”; defendant “did not manifest any 

belief that he was not free to leave”; the building was familiar to defendant; there were only two 

officers present; defendant was not physically restrained; and the interrogation lasted about an 
9

hour and occurred in “an unlocked room without any additional coercive conditions”); Elliott, 833 

N.W.2d at 293 (concluding that interview by parole officer of incarcerated parolee was not 

custodial when meeting took place in jail library, lasted between fifteen and twenty-five minutes, 

and defendant was not physically restrained, even though defendant was not told “he was free to 

leave the meeting and return to his cell”).

¶ 16. Further, we note that the degree of post-conviction, post-incarceration restraint, and 

a defendant’s knowledge of that restraint, have little if anything to do with whether the defendant 

is in custody for purposes of Miranda requirements unless defendant was actually under arrest. As 

the Supreme Court explained, the term “in custody” has different meanings in different contexts 

and is “more narrowly circumscribed” in the context of Miranda. Murphy, 465 U.S. at 430. For 

purposes of Miranda, custody is present only if a defendant is under formal arrest or under restraint 

of movement of the degree associated with formal arrest. Id. at 430-31. It is true, as we held in 

State v. Bogert, that “the restraints on [a] defendant’s individual liberty associated with his 

conditional-reentry status are significant.” 2013 VT 13A, ¶ 24, 197 Vt. 610, 109 A.3d 883. These 

restraints go to the liberty interests of a furloughed prisoner, as we held in Bogert, but do not create 

custody under Miranda. Indeed, the point of furlough is that the furloughee is not under arrest.

¶ 17. With respect to the assumed knowledge of the defendant, the Murphy Court made 

a critical distinction: 

[W]e must inquire whether [the defendant’s] probation condition 

merely required him to appear and give testimony about matters 

relevant to his probationary status or whether they went farther and 

required him to choose between making incriminating statements 

and jeopardizing his conditional liberty by remaining silent. 

Because we conclude that Minnesota did not attempt to take the 

extra, impermissible step, we hold that [the defendant’s] Fifth 

Amendment privilege was not self-executing.

465 U.S. at 436. 

¶ 18. There is similarly no evidence here that the State would penalize an exercise of a

defendant’s self-incrimination privilege by revoking his furlough status. As in Murphy, there is 
10

no direct evidence that defendant confessed “because he feared that his probation would be 

revoked if he remained silent.” Id. at 437.

¶ 19. Even this distinction does not end the inquiry. The Murphy Court went on to hold 

that even if the defendant had “a belief that his probation might be revoked for exercising the Fifth 

Amendment privilege, that belief would not have been reasonable.” Id. at 438. This is because 

decisions of the U.S. Supreme Court prior to Murphy had made clear that a “State could not 

constitutionally carry out a threat to revoke probation for the legitimate exercise of the Fifth 

Amendment privilege.” Id. For the same reason, such an expectation would not be reasonable in 

this case; penalizing the exercise of defendant’s privilege against self-incrimination would be 

unconstitutional. 

¶ 20. In Howes, the Court held that the questioning of a prisoner by law enforcement 

officers about a separate sex crime did not occur while the prisoner was in custody for purposes of 

Miranda. __ U.S. at __, 132 S. Ct. at 1189. The Court defined custody as follows:

 As used in our Miranda case law, “custody” is a term of art that 

specifies circumstances that are thought to present a serious danger 

of coercion. In determining whether a person is in custody in this 

sense, the initial step is to ascertain whether, in light of the 

“objective circumstances of the interrogation,” a “reasonable person 

[would] have felt he or she was not at liberty to terminate the 

interrogation and leave.” And, in order to determine how a suspect 

would have “gauge[d]” his “freedom of movement,” courts must 

examine “all of the circumstances surrounding the interrogation.”

Determining whether an individual’s freedom of movement was 

curtailed, however, is simply the first step in the analysis, not the 

last. Not all restraints on freedom of movement amount to custody 

for purposes of Miranda. We have “decline[d] to accord talismanic 

power” to the freedom-of-movement inquiry and have instead asked 

the additional question whether the relevant environment presents 

the same inherently coercive pressures as the type of station house 

questioning at issue in Miranda. “Our cases make clear . . . that the 

freedom-of-movement test identifies only a necessary and not 

sufficient condition for Miranda custody.” 

Id. at __, 132 S. Ct. at 1189-90 (citations omitted). The Court went on to hold that while the 

defendant’s freedom of movement was restricted by his imprisonment, the coercive pressures of 
11

station-house questioning were absent, and there was no Miranda custody. Id. at __, 132 S. Ct. at 

1192. It reached this conclusion despite the facts that the defendant did not consent to the interview 

in advance and was not told he could decline to speak with the officers; the interview lasted 

between five and seven hours and well beyond the defendant’s normal bedtime; the officers were 

armed; and one of the officers used a very sharp tone, and on one occasion, profanity. Id. at __, 

132 S. Ct. at 1193. 

¶ 21. Howes was recently applied by the Michigan Supreme Court in Elliott, a decision 

that discusses and follows the teachings of both Murphy and Howes. In Elliott, the defendant 

parolee was incarcerated for failure to report to his parole officer as required. The parole officer 

added new charges to the violation complaint, including one related to a robbery for which the 

defendant had never been convicted, and visited the defendant in prison to serve the new complaint 

and determine whether the defendant would waive a probable cause hearing on the new complaint 

charges. During the meeting, the defendant confessed to the robbery for which he had never been 

charged. The Michigan Supreme Court held that the parole officer could testify to the defendant’s 

confession to the robbery in a new criminal case for that crime over the objection that the officer 

failed to provide Miranda warnings before obtaining the confession. Elliott, 833 N.W.2d. at 285. 

The court reasoned that the defendant was not in custody under Howes, specifically, that the 

environment did not present the same inherently coercive pressures as the type of station house 

questioning at issue in Miranda. Id. at 294-95. The court found the environment less coercive 

than that in Howes in a number of respects, noting, for example, that a parolee “would be aware 

that a parole officer is acting independently of the police who placed him in custody and has no 

control over the jail.” Id. at 294.

¶ 22. To that end, the above discussion shows that custody did not occur for purposes of 

Miranda, and we reject the dissent’s assertion to the contrary based on its position that defendant 

was on furlough and knew he could be returned to incarceration without a court order if he did not 

cooperate with the probation officer by confessing to the conduct for which he was charged in the 
12

resulting criminal proceeding. The theory that the restraints on liberty created by probation, parole, 

or furlough mean there is custody under Miranda is wrong. That theory was specifically rejected 

in Murphy and is wholly inconsistent with Howes and other, newer cases from the U.S. Supreme 

Court. 

¶ 23. One other part of the trial court’s rationale on this point deserves special mention 

and response. The trial court noted that although a probationer’s statements to a probation officer 

are “admissible in violation-of-probation hearings,” this “does not render custodial unwarned 

statements per se admissible in other criminal proceedings,” and cites Murphy to that effect. This

is obviously a misreading of Murphy because the facts of that case did involve questions that 

incriminated the probationer in a new criminal case, exactly the facts present here. The quote in 

Murphy on which the trial court relies relates to the situation where the State punishes a probationer 

for exercising his right to remain silent in response to questions, the answers to which would be 

incriminating. See Murphy, 465 U.S. at 435. Neither the defendant in Murphy nor defendant in 

this case exercised his right to remain silent. 

¶ 24. The trial court’s second rationale is that the procedure by which defendant’s 

confession was obtained shows that custody was involved. Specifically, the trial court references 

the appearance of the probation officers at defendant’s apartment, the “order” for defendant to sit 

on his sofa, the search of the apartment, and the nature of the questions. The short answer lies in 

a comparison of the circumstances in Murphy to those present here.

¶ 25. In Murphy, the defendant was called to a meeting with his probation officer at her 

office, albeit at a time convenient to him. The announced reason for the meeting was a pretext, a 

fact that the Supreme Court found that the defendant likely knew. When the defendant appeared, 

he was confronted with an accusation that he had committed a specific murder in the past and had 

confessed to this murder to his treatment provider who in turn told the probation officer of the 

confession. He responded that his confession was true.
13

¶ 26. In the instant case, two probation officers went to defendant’s apartment in response 

to a complaint that defendant drilled a hole in his bedroom wall to look into the bedroom of a 

young girl in the adjoining apartment. Defendant admitted the two officers to the apartment, and 

one asked defendant to sit on the sofa while the other looked at defendant’s bedroom wall. Both 

were unarmed and in plainclothes. The officer who remained with defendant asked him if there 

was something defendant should tell him. Defendant answered that he “screwed up.” When the 

second officer returned and confirmed the holes drilled in the wall, the first officer asked defendant 

if he drilled the holes, and defendant answered that he did. All of this took a short period of time, 

a matter of minutes. 

¶ 27. If the circumstances in Murphy did not show the defendant was in custody because 

of the location and substance of the questioning, it is difficult to conceive how the circumstances 

in this case could. Defendant here was not “yanked” from familiar to unfamiliar surroundings. 

The questioning did not take place in a stationhouse or even a probation office, but in defendant’s 

own living room, with an officer he knew well and had worked with over several years. 

¶ 28. In Beckwith v. United States, the Supreme Court ruled that an investigative 

interview of a defendant in a home where he occasionally stayed, rather than in a police-dominated 

atmosphere, “simply [did] not present the elements which the Miranda Court found so inherently 

coercive.” 425 U.S. 341, 347 (1976). We have similarly held that the location of interrogation in 

a defendant’s home is a significant indicator that the interrogation is not custodial. Sullivan, 2013 

VT 71, ¶¶ 30-31 (concluding no Miranda warnings required when police did not restrict 

defendant’s movements and “the interview took place in defendant’s own home, under 

circumstances that did not resemble the sort of ‘police-dominated atmosphere’ that typically 

supports a finding of custody”). Many other courts have ruled similarly. See United States v. 

Murdock, 699 F.3d 665, 669 (1st Cir. 2012) (finding no custody when defendant was interviewed 

on his front lawn “in familiar surroundings”); United States v. Titemore, 437 F.3d 251, 260 (2d

Cir. 2006) (“easily dispens[ing]” with defendant’s claim he should have received Miranda
14

warnings when he was questioned on his porch and was not arrested or restrained in any way);

Commonwealth v. Carnes, 933 N.E.2d 598, 606 (Mass. 2010) (finding no custody when nineteenyear-old interviewed “in a house owned by his family” over seventy-five minutes in “informal and 

cordial” manner). Moreover, the fact of defendant’s furlough suggests that the circumstances of 

his questioning did not constitute a “sharp and ominous change.” Howes, __ U.S. at __, 132 S. Ct. 

at 1190. Defendant knew he was on the “highest level of supervision” and that his probation 

officer was permitted to visit his residence at any time and inspect it for violations. 

¶ 29. Further, the probation officer’s initial questions were entirely open-ended. Even 

after the officers discovered the holes in the wall of defendant’s bedroom, the questions focused 

on what had happened and were not accusatory. This is not a case like Muntean, where defendant 

was confronted by evidence against him, accused of a crime, and told that the interrogating police 

officer believed that defendant was guilty. 2010 VT 88, ¶¶ 28-29; see also State v. Hieu Tran, 

2012 VT 104, ¶¶ 15-16, 193 Vt. 148, 71 A.3d 1201 (finding custodial setting where, during 

interview, detectives “explain[ed] they knew [the defendant] was involved in the crime and 

confront[ed] defendant with the existing evidence they had of his guilt”). 

¶ 30. The fact that the officers were questioning defendant in response to a complaint and 

that they searched defendant’s bedroom are not indicators of custody. Virtually all of the cases 

cited in footnote five, supra, involve questioning in response to some suspicion of conduct that 

violated conditions of probation, parole, or furlough; indeed, virtually all cases involving the 

admissibility of evidence under the Miranda standard have those facts. Many of the cases with 

home interviews also involved searches. See McAllister, 807 A.2d at 1126 (determining Miranda

warnings not required where probation officers searched probationer’s home in response to tip and

probationer “was in his own home, to which he had come freely, there were no police officers 

present, the probation officers were not armed or blocking his exit in any way, and the questioning 

was direct and brief”); Christensen, 360 P.3d at 352 (concluding interrogation was noncustodial 

when parolee was questioned in his own home, by his parole officer, in “low-key” and “relaxed” 
15

manner for sixty minutes and noting fact police officers were simultaneously conducting a search 

of parolee’s home “did not make the encounter police-dominated”); Hermosillo, 2014-NMCA102, ¶¶ 26-29 (holding probationary home visit not transformed into custodial interrogation 

although defendant was handcuffed and told to remain seated while officers searched because visit 

occurred in defendant’s home, “a non-custodial setting,” defendant had tested positive for drugs 

and “could reasonably expect his probation officer might conduct a home visit to investigate these 

violations,” defendant was not “isolated or overwhelmed by police presence” even though drug 

task force officer accompanied probation officer, and “there [was] no evidence of force in relation 

to the handcuffing, or isolation in a secure location, or confinement”); Hedlund, 2009 WL 

1373670, at *2-3 (finding no custody for Miranda purposes although probation officer made 

unannounced visit to probationer’s home accompanied by nonuniformed police officers in 

unmarked vehicle and conducted search because surroundings and officer were “familiar,” 

probationer was aware “interviews were a necessary part of his conditions of release” and 

questions were straightforward). None cite these facts as significant indicators of custody. 

¶ 31. We acknowledge that at trial, the probation officer testified that defendant would 

not have been allowed to leave the apartment had he tried to do so once he confessed to the offense. 

But, we note that the consequence of an interrogation may be arrest of the person interrogated,

even though that person was not in custody at the time of the interrogation, and, in many 

circumstances, the interrogator may have decided to arrest even before the interrogation. If the 

interrogator conveys belief in the defendant’s guilt during the questioning, that communication 

can be a factor supporting that the defendant was in custody. See Hieu Tran, 2012 VT 104, ¶¶ 15-

16; Muntean, 2010 VT 88, ¶ 19. In this case, the probation officer said nothing about restraining 

defendant until after the confession, and defendant was in no way physically restrained throughout 

the course of the conversation with the probation officer. There is nothing in the record to suggest 

defendant knew the probation officer would not let him leave and that that knowledge had any 

bearing on his decision to give a statement. See Kittredge, 2014 ME 90, ¶ 18 (noting that because 
16

defendant “did not manifest any belief that he was not free to leave,” this weighs against finding 

of custody); Elliott, 833 N.W.2d at 293 (determining that fact defendant was never told he was 

free to leave is not “particularly compelling, much less dispositive” considering brief—fifteen to 

twenty-five minutes—duration of interview).

¶ 32. We recognize that this is one area in which the circumstances differ from those in 

Murphy. In Murphy, the defendant was asked about a crime that occurred before the defendant 

was on probation. Thus, the probation officer had no jurisdiction over the conduct of the 

probationer at the time of the crime and thus could not restrain the defendant when he confessed 

to that conduct. In this case, the facts gathered by the probation officers in probationer’s apartment 

and defendant’s acknowledgement of his conduct during the inquiry determined that defendant 

would be restrained for violation of his probation conditions. While this is a difference, it is not a 

distinction that determines whether custody occurred. Virtually all of the post-Murphy cases are 

like this one, and not like Murphy on this point, and find no custody even though the defendant is 

not told that he or she is free to leave at any time.

¶ 33. There is another reason why this issue is not determinative. As the Court held in 

Howes, the fact that a probationer is not free to leave is a necessary but not sufficient element of 

custody. __ U.S. at __, 132 S. Ct. at 1189-90. The second element is “whether the relevant 

environment presents the same inherently coercive pressures as the type of station house 

questioning at issue in Miranda.” __ U.S. at __, 132 S. Ct. at 1190. That second element is not 

met here.

¶ 34. We note that the trial court mistakenly relied on Steinhour, 158 Vt. 299, 607 A.2d 

888, in reaching its decision. Steinhour was not a case in which the defendant claimed admission 

of evidence violated the prohibition of Miranda because the defendant was in custody and Miranda

warnings were required. In fact, the defendant in Steinhour challenged the introduction of 

evidence in his probation violation proceeding, not its introduction in a separate criminal 

proceeding. We explicitly noted that the defendant in Steinhour “[did] not claim a failure to warn 
17

him of his privilege against self-incrimination under Miranda”; rather, he argued that the

circumstances of his questioning by his probation officer supported a reasonable belief that refusal 

to answer and assertion of the self-incrimination privilege “would itself be a ground to revoke 

probation,” thus rendering his statements involuntary. Id. at 300, 607 A.2d at 889. We refused to 

address whether that belief was reasonable in Steinhour, particularly in the context of a separate 

criminal proceeding because the circumstances were hypothetical, although we noted the Murphy

holding that punishing a defendant for invoking his right to remain silent would be 

unconstitutional. Id. at 301-02, 607 A.2d at 890.

¶ 35. The trial court interpreted our statement in Steinhour that we were not addressing 

the situation where the State seeks to use statements from a probation interview in a separate 

criminal case as a holding that the result would be different in the latter circumstance. It then made 

the leap that the Steinhour holding would require Miranda warnings if the statements were to be 

admitted in the separate criminal case. We reiterate that the Steinhour language on which the trial 

court relied was not a holding, and Steinhour was not a Miranda case. In essence, the trial court 

interpreted Steinhour as holding that the Minnesota Supreme Court decision in Murphy was right 

and Miranda warnings would be required whenever statements from a probation officer interview 

were introduced in a separate criminal case. Such a decision would war directly with the Supreme 

Court’s decision in Murphy and be beyond our power. 

¶ 36. There is an additional reason for our decision today. Scholars and courts have 

consistently read Murphy as effectively holding that probation officers are not required to give 

Miranda warnings before questioning those whom they supervise absent some form of police 

custody. See, e.g., 2 W. LaFave et al., Criminal Procedure § 6.10(c) (4th ed.) (noting “Miranda

has been held inapplicable to questioning by . . . parole or probation officers”); T. Jacobi et al., 

The Attrition of Rights Under Parole, 87 S. Cal. L. Rev. 887, 923 (2014) (explaining that under 

Murphy, “the typical parole interview does not constitute custody despite the fact that parole 

officers could compel [a parolee’s] attendance and truthful answers” because “such seeming 
18

compulsion alone does not transform[] a routine interview into an inherently coercive setting,” and 

parolee’s nonMirandized statements can be used against him or her in criminal case as well as in 

parole revocation hearings (quotations omitted)); S. Vance, Looking at the Law: An Updated Look 

at the Privilege Against Self-Incrimination in Post-Conviction Supervision, Fed. Prob., June 2011, 

at 33, 37 (explaining that probation officer can ask incriminating question of offender on postconviction supervision, and officer is not required to read Miranda rights to offender unless 

offender is in “some type of police custody”). 

¶ 37. The above findings comport with the nature and purposes of probation. Because

the “primary goal of probation . . . is rehabilitation of the defendant,” the relationship between a 

defendant and his or her probation officer should not be founded on fear, intimidation, or 

authoritarianism, but on trust, openness, and the commonly held goal of restoring the defendant to 

useful and productive citizenship. State v. Burdin, 924 S.W.2d 82, 86 (Tenn. 1996); see also 28 

V.S.A. § 252(a) (noting that court may impose conditions of probation deemed reasonably 

necessary “to ensure that the offender will lead a law-abiding life or to assist the offender to do 

so”). Furlough, particularly long-term furlough as in this case, has similar purposes. 

¶ 38. Treating probation officers as law enforcement officers primarily motivated to 

secure convictions for crimes and required to give Miranda warnings to those they supervise erects 

a substantial barrier to the development of forthright, open communication between probation 

officers and those they supervise. The facts of this case show exactly the difference. Defendant 

had been in the same status under furlough for five years, longer than most periods of probation. 

The probation officer in this case had supervised him for all that time, during which they met 

approximately twice a week. The pair had a “good relationship.” Defendant had admitted other 

violations of his furlough conditions without resulting imprisonment. The officer testified that his 

goal was to “have an honest, open relationship” with his clients so that “if they were struggling 

and in need, they could come to [him] and say I need help with this,” and receive appropriate 

treatment. Miranda was built around a wholly different paradigm, one in which police officers 
19

who have no relationship with a crime suspect use a coercive environment and interrogation 

techniques to extract a confession. 

¶ 39. The standard Miranda warning requires the officer to tell the suspect that he or she 

has a right to remain silent and anything the suspect says can and will be used against him in a 

court of law. The routine giving of these warnings in the context where the officer must inquire 

about compliance with probation, parole, or furlough conditions and the answers may disclose 

conduct a prosecutor could charge as criminal would undermine an atmosphere of trust and 

communication. The warnings would identify a probation officer as just another police officer, 

who is an adversary of the defendant. 

¶ 40. For the above reasons, we reverse the trial court’s decision to suppress the first set 

of defendant’s statements to his probation officer. 

¶ 41. We next address defendant’s statements during the second conversation with his 

probation officer. The trial court suppressed these statements based on the same rationale it used 

for the first interview—that the statements were not admissible without Miranda warnings under 

the holding in Steinhour. That rationale was erroneous.

¶ 42. However, that this rationale was erroneous does not end the inquiry. A court must 

still determine if defendant was in custody under traditional factors at the time of the second 

interview, and it is undisputed that defendant was physically restrained in a DOC facility at the 

time of that interview. 

¶ 43. Given the rationale for its decision, the trial court made few findings about the 

environment and circumstances of the second interview. The probation officer’s testimony during 

the trial and the motion hearing indicates that defendant was transferred into shackles and leg 

restraints upon his arrival at the DOC office, and that after being taken outside for a cigarette, 

defendant and the probation officer returned to the DOC office where the officer “started” a 
20

conversation with defendant about the holes he had found in the apartment wall.

6

 However, the 

record contains no information regarding the number, kind, or tone of the questions the probation

officer posed to defendant. The record also does not contain information about whether defendant 

was still wearing restraints after returning to the DOC office from smoking a cigarette outside, a 

negative finding that is “qualitatively different from stating that [the defendant] was free to move 

about,” rendering it “impossible to determine if [defendant] retained his freedom of movement 

through the questioning.” United States v. Ollie, 442 F.3d 1135, 1138 (8th Cir. 2006).7 Although 

it is undisputed that defendant was “not free to leave,” under Howes we must find both that 

defendant was not free to leave and that the questioning was done in a coercive environment 

comparable to the station house atmosphere in Miranda. __ U.S. at __, 132 S. Ct. at 1189. The 

trial court made no findings on this second element. 

¶ 44. We recognize that defendant has the burden of proof to establish custody for 

Miranda purposes and thus is responsible for deficiencies in the record. In re E.W., 2015 VT 7, 

¶ 10. Nevertheless, the evidence available shows factors that support a conclusion that defendant 

was in custody for Miranda purposes: the prior confessions to the probation officer and the police 

officer, the prior accusations of the police officer, his arrest on the probation violation charges so 

that he was held involuntarily, the location of the interview under either version of the facts, and 

his isolation from the outside world. Much of the State’s argument is based on Howes. The Howes

holding is that an interrogation in prison, in a private location, and with respect to actions that took 

 

6

 We note, however, that the State’s response to defendant’s supplemental memorandum 

in the trial court states that the conversation occurred in the parking lot of the DOC office while 

the two men were smoking and that defendant began to “spontaneously talk” and provide 

additional information without being prompted. By contrast, the trial court’s decision on the 

motion to suppress states that “in answer to more inquiries,” defendant admitted additional

information. 

7 Moreover, even if defendant was restrained during the conversation, the Supreme Court 

has emphasized that “[n]ot all restraints on freedom of movement amount to custody for purposes 

of Miranda” and “declined to accord talismanic power to the freedom-of-movement inquiry,”

focusing instead on whether the coercive pressures of the station house are present. Howes, __ 

U.S. at __, 132 S. Ct at 1189 (quotation omitted). 
21

place outside is not per se custodial for purposes of Miranda. 132 S. Ct. at 1189. While the 

analysis may be helpful to the State’s argument, it is not determinative.

¶ 45. On the sparse evidence presented, we would conclude that it is impossible to 

determine as a matter of law whether defendant was in custody for purposes of Miranda without 

findings of fact derived from the evidence that was presented. Consequently, we reverse the 

decision to suppress the statements made in the second interview with the probation officer and 

remand for additional findings of fact on the issue of custody. 

The trial court’s order suppressing defendant’s first set of statements to his probation 

officer is reversed; its decision as to the second set of statements is reversed and remanded for 

proceedings consistent with this opinion. 

FOR THE COURT:

Associate Justice

¶ 46. SKOGLUND, J., dissenting. I dissent. This was not a typical, routine interview 

of a parolee or furloughee. This was a special visit to respond to an allegation that defendant had 

committed a crime. The totality of the circumstances shows that defendant was “in custody” 

when he made involuntary, incriminatory statements to his supervising Department of 

Corrections (DOC) officer, and therefore his statements should be suppressed. I would affirm the 

trial court’s decision. 

¶ 47. Under the Fifth Amendment to the U.S. Constitution, an individual is privileged 

“not to answer official questions put to him . . . where the answers might incriminate him in future 

criminal proceedings.” Minnesota v. Murphy, 465 U.S. 420, 426 (1984) (quotation omitted); U.S. 

Const. amend. V (stating that no person “shall be compelled in any Criminal Case to be a witness 

against himself”). “A defendant does not lose this protection by reason of his conviction of a 

crime.” Murphy, 465 U.S. at 426. Thus, even if a defendant is “on probation at the time he makes 

incriminating statements, if those statements are compelled they are inadmissible in a subsequent 
22

trial for a crime other than that for which he has been convicted.” Id. And, just to be clear, 

defendant was not on probation, he was under the “highest level” of furlough supervision. 

Furlough “shall in no way be interpreted as a probation or parole of the offender.” 28 V.S.A. § 

808(c).

¶ 48. Although generally an individual must assert his or her Fifth Amendment right to 

be entitled to its protection, an exception is made for statements “obtained during custodial 

interrogation.” Murphy, 465 U.S. at 430; Miranda v. Arizona, 384 U.S. 436, 444 (1966) 

(explaining that “custodial interrogation” means “questioning initiated by law enforcement 

officers after a person has been taken into custody or otherwise deprived of his freedom of action 

in any significant way”). This is because “the custodial setting is thought to contain ‘inherently 

compelling pressures which work to undermine the individual’s will to resist and to compel him 

to speak where he would not otherwise do so freely.’ ” Murphy, 465 U.S. at 430 (quoting Miranda, 

384 U.S. at 467). Thus, “[t]o dissipate the overbearing compulsion caused by isolation of a suspect 

in police custody,” law enforcement officers must warn individuals of their right to remain silent 

and warn them of the consequences of failing to assert such right before engaging in any custodial 

interrogation. Id. (quotation and alterations omitted). If the warnings are not provided, any 

incriminatory statements must be suppressed. Id. (explaining that courts must exclude 

“incriminating statements obtained during custodial interrogation unless the suspect fails to claim 

the Fifth Amendment privilege after being suitably warned of his right to remain silent and of the 

consequences of his failure to assert it”).

¶ 49. The Supreme Court has identified a two-part test to determine if an individual is 

“in custody” for Miranda purposes. Howes v. Fields, __ U.S. __, __, 132 S. Ct. 1181, 1189 (2012). 

Courts must first consider if, “in light of the objective circumstances of the interrogation, a 

reasonable person would have felt he or she was not at liberty to terminate the interrogation and 

leave.” Id. (quotations omitted). This requires an examination of “all of the circumstances 

surrounding the interrogation,” including “the location of the questioning, its duration, statements 
23

made during the interview, the presence or absence of physical restraints during the questioning, 

and the release of the interviewee at the end of the questioning.” Id. (quotations omitted). Because 

“[n]ot all restraints on freedom of movement amount to custody for purposes of Miranda,” courts 

must also ascertain if “the relevant environment presents the same inherently coercive pressures 

as the type of station house questioning at issue in Miranda.” Id. at 1189-90. 

¶ 50. Here, because defendant was on furlough status, he could be returned to jail without 

any evaluation by a court of the reasons for his re-incarceration. In State v. Bogert, this Court 

recognized that “the restraints on defendant’s individual liberty associated with his conditionalreentry status are significant.” 2013 VT 13A, ¶ 24, 197 Vt. 610, 109 A.3d 883. According to the 

testimony of his supervising correctional officer, the officer could enter the defendant’s apartment 

without permission and could search it without any warrant. And, he could put defendant in

custody while searching the residence. As an example of this, he testified that he could order a 

person on furlough to “stay seated in a primary location so we can conduct the search.” 

¶ 51. In Murphy, the Supreme Court concluded that a probationer was not “in custody” 

during a “probation interview, arranged by appointment at a mutually convenient time” and 

therefore reversed the decision of the Minnesota Supreme Court that had suppressed Murphy’s 

incriminating statements to his probation officer that implicated him in another crime. 465 U.S. 

at 433. In Murphy, the probation officer wrote to Murphy and asked him to contact her to discuss 

a treatment plan for the remainder of his probationary period. In actuality, the meeting was in 

direct response to her learning that Murphy had admitted committing a rape and murder to his 

counselor in the required program for sexual offenders, and she intended to report any 

incriminating statements that Murphy made during the interview to police. Id. at 422-23. Murphy 

admitted to the crimes during the interview. Id. at 423. Murphy was not detained at the end of 

the interview. The probation officer informed the police of Murphy’s admissions, and he was 

subsequently indicted for first-degree murder. 
24

¶ 52. As indicated, the Supreme Court determined that Murphy was not in custody 

during the probation meeting. It found that the meeting did not convey to Murphy “a message 

that he has no choice but to submit to the officers’ will and to confess,” nor did it thrust him into 

“an unfamiliar atmosphere or an interrogation environment created for no purpose other than to 

subjugate the individual to the will of his examiner.” Id. at 433 (quotation and alterations 

omitted). The Court explained that Murphy met regularly with his probation officer at her office, 

and that these regular meetings “should have served to familiarize him with her and her office 

and to insulate him from psychological intimidation that might overbear his desire to claim the 

[Fifth Amendment] privilege.” Id. 

¶ 53. While the majority believes “Murphy answers much of defendant’s argument on 

the special need for Miranda warnings in probation officer interview cases where the State seeks 

to admit the result of that interview in a separate criminal case,” ante, ¶ 15, reliance on Murphy

cannot decide the issue in this case; too many factors distinguish Murphy from this case. Again, 

defendant here was on furlough, not probation. And, while the Supreme Court found no custodial 

setting and no compulsion involved in Murphy’s questioning and, thus, did not suppress his 

statements, it acknowledged: “The result may be different if the questions put to the probationer, 

however relevant to his probationary status, call for answers that would incriminate him in a 

pending or later criminal prosecution.” Murphy, 465 U.S. at 435.

¶ 54. Defendant here was in a custodial situation for Miranda purposes. His supervisor 

said as much when he testified that he directed defendant to sit on the couch while a search was 

conducted and that he did not leave defendant alone until the other correctional officer came 

downstairs to watch over defendant. Defendant understood that his furlough status could be 

immediately revoked if he failed to answer his DOC supervisor’s questions without the need for 

the supervisor to resort to the procedures offered for a probationer when charged with a violation 

of probation conditions. He had already received four graduated sanctions for prior incidents, 

with one resulting in incarceration. While the questioning occurred in defendant’s home and he 
25

knew his supervising officer well, it is disingenuous to label this visit as a typical “probation 

interview, arranged by appointment at a mutually convenient time” as in Murphy. Id. at 433. The 

record shows that defendant’s supervising officer, and a second DOC officer, went to defendant’s 

home specifically in response to a report that defendant was suspected of committing a new crime. 

¶ 55. This record compels a finding of custody. It is significant that defendant did not 

“arrive[] at the interview voluntarily,” or leave “by his . . . own free will.” State v. Muntean, 2010 

VT 88, ¶ 19, 189 Vt. 50, 12 A.3d 518. Moreover, the focus of the interview was not on the terms 

of defendant’s furlough agreement but rather on investigating suspicions of involvement in new 

criminal acts. Cf. State v. Steinhour, 158 Vt. 299, 302, 607 A.2d 888, 890 (1992) (“The purpose 

of a probation officer’s questions about the probationer’s behavior related to and affecting his 

probation is ordinarily not aimed at ferreting out evidence to support an additional criminal 

prosecution.”). While the interview occurred in defendant’s home, this is not by itself 

determinative of the totality-of-the-circumstances inquiry. Muntean, 2010 VT 88, ¶ 19. As one 

court has explained, “[q]uestioning which occurs in the suspect’s own home may provide a 

margin of comfort, but . . . the setting of the interrogation is not so important to the inquiry as the 

question of police domination of that setting.” United States v. Griffin, 922 F.2d 1343, 1354-55 

(8th Cir. 1990). 

¶ 56. During their conversation, the officers never told defendant that he did not have to 

answer their questions or that he was free to terminate the interview. Like other courts, we have 

found this type of disclosure “significant in determining whether a reasonable person would have 

felt at liberty to terminate a police interview.” Muntean, 2010 VT 88, ¶ 25 (citing cases). Indeed, 

we found the absence of such a statement pivotal in both Muntean and State v. Hieu Tran, 2012 

VT 104, ¶ 14, 193 Vt. 148, 71 A.3d 1201. In this case, defendant could not have reasonably 

believed he could have terminated the interview. 

¶ 57. While the conversation here may have been short, the questions were not openended as the majority posits. Ante, ¶ 29. The supervising officer repeatedly asked defendant if 
26

he had anything to report, conveying the officer’s belief that there had been slippage on 

defendant’s part. Then, defendant was confronted with evidence of a new crime by the discovery 

of drilled holes in defendant’s bedroom that looked into the adjoining unit. Prior to that 

announced discovery, defendant said only that he had “screwed up.” The confrontation of 

defendant with evidence suggesting his guilt of a serious crime contributed significantly to the 

coercive atmosphere. See, e.g., Hieu Tran, 2012 VT 104, ¶ 15 (concluding that “the content of 

the [detectives’] questioning created a custodial atmosphere because throughout the interview the 

detectives repeatedly confronted defendant with evidence of his guilt”); Muntean, 2010 VT 88, 

¶ 29 (finding it significant to custody analysis that “during the interview defendant was accused 

of committing a serious crime and confronted with evidence of his guilt”). As explained in 

Muntean, a reasonable person confronted with such evidence “would not feel at liberty to 

terminate a police interview” because “a reasonable person understands that the police ordinarily 

will not set free a suspect when there is evidence strongly suggesting that the person is guilty of 

a serious crime.” Id. ¶ 28 (quotation omitted). 

¶ 58. This leads to another important distinction between the instant case and Murphy. 

The probationer in Murphy was free to leave the probation interview. The Supreme Court 

emphasized that Murphy was free to leave during the interview and did in fact leave the interview 

without being arrested despite confessing to rape and murder. Murphy, 465 U.S. at 433, 434 n.5. 

This was a significant part of the Court’s calculus. Unlike Murphy, defendant was not free to 

leave the interview “by his . . . own free will” even before he admitted drilling the holes and was 

handcuffed behind his back. Muntean, 2010 VT 88, ¶ 19; see also Howes, __ U.S.__, 132 S. Ct. 

at 1189 (stating that one relevant factor in custody analysis is “the release of the interviewee at 

the end of the questioning”); Hieu Tran, 2012 VT 104, ¶ 15 (finding it significant in custody 

analysis that officers repeatedly confronted defendant with evidence of his guilt, communicated 

that defendant could be arrested for a serious offense based on that evidence, and did in fact arrest 

defendant at the close of the interview).
27

¶ 59. Again, defendant was not on probation. He was on furlough. And, while his 

furlough status alone is not sufficient basis to require a Miranda warning, see State v. LeClaire, 

2003 VT 4, ¶ 16, 175 Vt. 52, 819 A.2d 719, the conditions of his furlough are strong evidence 

that he was not free to leave when confronted by his probation officer. In fact, he was directed to 

stay on his couch, an action the supervising officer testified was a means of putting a person on 

furlough “in custody” for safety purposes while conducting a search. No reasonable person in 

defendant’s position would have felt free to terminate the interview. Here, “the relevant 

environment presents the same inherently coercive pressures as the type of station house 

questioning at issue in Miranda.” Howes, 132 S. Ct. at 1189-90. 

¶ 60. Other courts have reached similar conclusions in cases that involved alleged 

“parole interviews.” See Commonwealth v. Cooley, 118 A.3d 370, 379-80 (Pa. 2015) 

(concluding that “no mere parole interview” occurred where parolee was immediately handcuffed 

after voluntarily appearing at parole office, accused of crimes for which he was not on parole, 

“there was no ‘interview’ or dialogue related to the conditions of his parole or parole violations,” 

he was not told that he was not under arrest or that he was being handcuffed pursuant to routine 

police, but was instead informed that he was being investigated for new crimes, and agents’ 

interrogation and search of parolee’s home “was unquestionably aimed at crimes for which he 

was not on parole”); see also People v. Coleman, 2015 IL App (4th) 140730, 37 N.E.3d 360 

(concluding that parolee was subject to custodial interrogation where parole officer was looking 

for parolee because of tips indicating parolee had committed new crime, parolee was separated 

from other people in house, parole agents were armed and parolee was required to cooperate, and 

parolee was handcuffed and then questioned about an independent crime). 

¶ 61. The trial court’s reliance on State v. Steinhour, 158 Vt. 299, 607 A.2d 888 (1992), 

was not misplaced. While in Steinhour the State sought to use the defendant’s admissions to 

marijuana use from a probation interview in a violation of probation hearing and not to support a 

separate criminal charge, the implication of the holding in Steinhour for this case is not a leap. 
28

This Court wrote: “if [the] defendant is guilty of conduct which is a violation of probation, . . . his 

answers are relevant and may be used against him in the revocation hearing. That is because 

defendant is not being compelled to give statements to be used against him in a criminal

proceeding.” Id. at 300, 607 A.2d at 889. The Court noted that Steinhour had not been charged 

criminally with using marijuana and that, if he had been, “a motion to suppress would stand 

squarely in both the Fifth Amendment and Article 10.” Id. at 301, 607 A.2d at 889. It then quoted 

from Minnesota v. Murphy: 

“There is thus a substantial basis in our cases for concluding that if 

the State, either expressly or by implication, asserts that invocation 

of the privilege would lead to revocation of probation, it would have 

created the classic penalty situation, the failure to assert the privilege 

would be excused and the probationer’s answers would be deemed 

compelled and inadmissible in a criminal prosecution.” 

Id. (emphasis added) (quoting Murphy, 465 U.S. at 435). 

¶ 62. This Court supported the Steinhour analysis four years later in State v. Cate, 165 

Vt. 404, 683 A.2d 1010 (1996). In Cate, the defendant argued that the probation condition 

requiring him to admit his guilt as part of sex-offender therapy should be stricken because it 

violated his Fifth Amendment and Article 10 rights against self-incrimination. We adopted the 

reasoning of the federal district court in Mace v. Amestoy, which held that when an individual 

asserts the privilege against self-incrimination, the Fifth Amendment “ ‘privileges [a person] not 

to answer official questions put to him in any other proceeding, civil or criminal, formal or 

informal, where the answers might incriminate him in future criminal proceedings . . . unless and 

until he is protected at least against the use of his compelled answers.’ ” 765 F. Supp. 847, 850 

(D. Vt. 1991) (quoting Murphy, 465 U.S. at 426). We held that a person in a probation setting 

cannot be forced to incriminate himself without first receiving immunity from criminal prosecution 

as a result thereof. Cate, 165 Vt. at 415, 683 A.2d at 1018.

¶ 63. The circumstances surrounding the second set of incriminatory statements to the 

probation officer are even more indicative of a custody status. I would not remand this question, 
29

but rather conclude on these facts that defendant was subjected to custodial interrogation while 

in the probation office. Defendant was “arrested or detained” at his apartment and placed in 

handcuffs. It is clear that defendant was not free to leave. See LeClaire, 2003 VT 4, ¶ 16 (“To 

determine whether an individual is in custody for Miranda purposes, 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.” (quotation omitted)); see also Cooley, 118 A.3d at 379 (recognizing that while 

the use of handcuffs is not dispositive of custody analysis, it is “generally recognized as a 

hallmark of a formal arrest” (quotation omitted)). Even the State agreed below.

¶ 64. After the investigating police officer provided what the trial court found were 

inadequate Miranda warnings at the home, defendant was transported to the DOC office in 

restraints. He was again interrogated by his supervising DOC officer and admitted the holes in 

the wall had been made some three months earlier, and that he had seen his minor female neighbor 

when she was naked or wearing underwear. Defendant’s supervising DOC officer made these 

further inquiries because he felt that he needed to have full information in making a decision 

about whether to release defendant. This excuse strains credulity. The confrontation by the 

supervising officer occurred on April 3. One day later, on April 4, defendant was arraigned on 

fourteen misdemeanors of voyeurism and stalking. Defendant was not going to be released.

¶ 65. The police officer was told of defendant’s further remarks. When the officer 

arrived at the DOC office, he did not inform defendant of his Miranda rights. Defendant then 

confirmed what he had told his supervising officer. The court found the evidence unclear as to 

whether defendant remained handcuffed at the DOC office. The State concedes that defendant 

was not free to leave during his conversation with his supervising DOC officer as “he was being 

processed to return to jail,” but questions whether defendant was wearing any kind of restraints 

at that point. Given all of the indicia of custody, we do not need to discern if defendant was 

actually wearing restraints during his conversation with his supervising DOC officer. Any 

reasonable person under these circumstances would understand that he or she in custody, and the 
30

circumstances here present all of the indicia of coercion that Miranda warnings are designed to 

protect against. 

¶ 66. The interview was custodial, defendant’s statements were coerced, and they should 

not be admissible in the criminal proceeding. I would affirm the trial court’s decision, and suppress 

both sets of defendant’s statements. 

¶ 67. I am authorized to state that Justice Robinson joins this dissent. 

Associate Justice