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http://www.courts.state.nh.us/supreme.

THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough-southern judicial district

No. 2018-0575

THE STATE OF NEW HAMPSHIRE

v.

DOMINIC CARRIER

Argued: November 6, 2019

Opinion Issued: April 7, 2020

Gordon J. MacDonald, attorney general (Sean R. Locke, assistant 

attorney general, on the brief and orally), for the State.

Stephanie Hausman, deputy chief appellate defender, of Concord, on the 

brief and orally, for the defendant.

HANTZ MARCONI, J. The State brings this appeal pursuant to RSA 

606:10, II(a), arguing that the Superior Court (Colburn, J.) erred in 

suppressing two sets of recorded statements made by the defendant, Dominic 

Carrier. See RSA 606:10, II (2001). The trial court ruled that the defendant 

was subject to custodial interrogation at the time he gave the first set of 

statements, and, because he was not given the warnings required by Miranda 

v. Arizona, 384 U.S. 436 (1966), those statements were obtained in violation of 

his right against self-incrimination. The court suppressed the second set of 

statements because it found that the State did not prove beyond a reasonable 

doubt that the defendant gave them voluntarily. We affirm and remand.
2

I

The trial court found or the record reflects the following facts. As of 

November 19, 2017, the defendant, his mother, the alleged victim, and her

father lived together in a Nashua apartment. The defendant’s mother and the 

alleged victim’s father were engaged to be married. The apartment is located in 

a multi-unit building with a partially enclosed front porch. At 5:00 a.m. on 

November 20, the defendant left for work. After he left, the alleged victim (AV), 

who was thirteen years old at the time, told her father that the defendant had 

entered her bedroom during the early hours of the morning and touched her 

genitals while she slept.

AV’s father called the police, and Officer Kekejian of the Nashua Police 

Department arrived at the residence around 7:00 a.m. Kekejian wore a full 

uniform, with badge and gun visible. AV’s father relayed his daughter’s 

allegation to Kekejian, who then contacted additional officers. Kekejian was 

directed to remain at the residence with AV, her father, and the defendant’s 

mother until the Child Advocacy Center (CAC) could conduct AV’s forensic 

interview later that day. 

Kekejian and the family waited in the living room of the apartment. At 

9:09 a.m., the defendant returned. He walked through the front door, which 

entered into the living room, without knocking. Kekejian immediately ordered 

the defendant to leave, then followed the defendant outside to the front porch 

and closed the door behind him, leaving the family inside. Kekejian stood in 

front of the door, preventing the defendant from reentering his home. He told 

the defendant that the police were “investigating a matter” and that the 

apartment was “being held as a scene.” Kekejian also pat-frisked the 

defendant. In addition, when the defendant began using his phone, Kekejian 

took it from him, gave no explanation for why he did so, and never returned it. 

Kekejian proceeded to question the defendant about AV’s allegations. He 

asked the defendant “what he had done” that morning and whether he had 

entered AV’s bedroom. He also asked about the defendant’s living 

arrangements at the apartment. Kekejian did not tell the defendant that he 

could refuse to answer his questions, that he was not under arrest, or that he 

was free to leave. It was cold and windy that day, but the defendant did not 

have a coat.

This initial interaction on the porch lasted approximately ten minutes, 

until Officer Ciszek arrived. Ciszek arrived in a fully marked police cruiser and 

wore a police uniform. After Ciszek arrived, Kekejian called Detective Hallam. 

Hallam initially told Kekejian that he would “get in contact with” the defendant 

at a later time. Kekejian provided the defendant with Hallam’s contact 

information. As Kekejian and the defendant were discussing where the 

defendant would go in light of the weather and the fact that he would not be 
3

allowed to return to the home, Hallam called Kekejian back. Hallam instructed 

Kekejian to ask the defendant to remain at the residence for an interview. The 

defendant said he would wait for Hallam; however, the defendant was not told 

that he was not required to wait for Hallam or that he could refuse to speak 

with him. Kekejian, Ciszek, and the defendant remained on the front porch 

until approximately 10:00 a.m., when Hallam arrived with Detective McIver. 

During that time, Kekejian again questioned the defendant about his 

whereabouts that morning while also making “small talk” about other topics, 

such as the defendant’s employment and cars. There is no evidence that either 

Kekejian or Ciszek left the porch during the time that the three men waited for 

Hallam and McIver.

Hallam subsequently arrived with McIver in an unmarked police car, a 

Chevrolet Impala, and parked across the street from the apartment. The 

Impala had government license plates and a police radio, but was otherwise 

similar to a non-police vehicle. Hallam and McIver wore dress shirts and dress 

pants, but their badges and guns were visible. Upon their arrival, Hallam and 

McIver walked to the front porch and asked the defendant to speak with them 

in their car. The detectives accompanied the defendant to the car and all three 

got inside, closing the doors behind them. Hallam sat in the driver’s seat, 

McIver sat in back, and the defendant sat in the front passenger’s seat.

Hallam turned on an audio recording device shortly after entering the 

car. The defendant stated he was “fine” with Hallam doing so. Hallam asked 

the defendant if he was “giving a statement voluntarily” and stated that he 

didn’t want the defendant to feel “forced” to speak with him. Hallam also 

demonstrated to the defendant that the doors to the car were not locked and 

said that he should “feel free” to leave. However, the defendant and Hallam 

were talking over each other when Hallam made all of these statements. 

The detectives began questioning the defendant about AV’s allegations. 

The defendant denied that he had ever left his bedroom the previous night. 

However, over the course of the approximately one-hour interrogation, the 

detectives repeatedly accused the defendant of lying and of being “deceptive.” 

They told the defendant that they were not interested in hearing the 

defendant’s denials and that all they wanted to hear from the defendant were 

explanations for his conduct. The detectives told the defendant that they

“wouldn’t be here” investigating AV’s allegations if they were not true, that AV

had no reason to lie, and that they believed the defendant had touched AV’s 

vagina. Despite the nature of the detectives’ accusations, the trial court found 

that the overall tone of the interrogation was generally polite.1

 

1

The trial court based its findings regarding the interrogation in the car upon the audio recording. 

On appeal, the State has not provided us with this audio recording. 
4

As the interrogation inside the Impala progressed and the detectives 

repeatedly accused the defendant of lying and of sexually assaulting AV, the 

defendant made incriminating statements. The doors to the car remained 

closed throughout this encounter. Kekejian and Ciszek were within viewing 

distance the entire time. The defendant was not given or offered a break at any 

point.

 

After the interrogation concluded, the defendant apparently used 

Hallam’s phone to call his father. The defendant arranged for his father to pick 

him up at a nearby convenience store. The defendant told the detectives he 

would be staying with his father and gave them his father’s address. The 

detectives then drove the defendant to the convenience store. 

After AV’s CAC interview later that day, a warrant was issued for the 

defendant’s arrest. Hallam arrested the defendant at his father’s home at 8:20 

p.m., and the defendant was brought to the Nashua police station. Hallam 

approached the defendant in the booking area around 10:00 p.m. and asked 

the defendant to speak with him. The defendant agreed and was brought 

upstairs to an interview room. Hallam read the defendant his Miranda rights, 

and the defendant said he would waive them. Less than twenty seconds after 

giving the defendant Miranda warnings, however, Hallam invoked the 

defendant’s statements in the Impala that morning, telling the defendant that 

there were “inconsistencies” in his first set of statements and that this time he 

wanted to “skip all that B.S. that we were doing out there.” Hallam continued 

to bring up the defendant’s first set of statements throughout this second

interrogation; the defendant made additional incriminating statements. 

The defendant was charged with one count of aggravated felonious 

sexual assault (AFSA). See RSA 632-A:2 (2016) (amended 2017, 2018). He 

moved to suppress the recorded statements he made inside the Impala as well 

as his subsequent recorded statements at the police station. The trial court 

held a hearing, at which it heard testimony from Kekejian and Hallam. The 

recorded statements themselves, as well as transcripts of each set of 

statements, were submitted to the trial court by agreement. As to the Impala 

statements, the court ruled that the defendant was in “custody” for Miranda

purposes when, approximately sixteen minutes into the recording, Detective 

Hallam repeatedly accused him of lying. As to the statements at the police 

station, the court found that the State failed to meet its burden of proving 

beyond a reasonable doubt that the defendant gave those statements

voluntarily. Accordingly, the court granted the defendant’s motion. The State 

filed a motion to reconsider, to which the defendant objected. The court denied 

the State’s motion, and this appeal followed. 
5

II

We begin with the Miranda issue. The State argues that the defendant 

was not in custody at any point before he was formally arrested at his father’s 

home; thus he was not entitled to Miranda warnings before or at any point 

during the questioning in the Impala. The defendant contends that the trial 

court correctly ruled that he was in custody because a reasonable person in his 

position would have felt constraints on his freedom consistent with formal 

arrest. The parties raise their arguments under both the State and Federal 

Constitutions. We first address them under the State Constitution and rely 

upon federal law only to aid our analysis. State v. Ball, 124 N.H. 226, 231-33 

(1983).

Before a defendant’s responses made during a custodial interrogation 

may be used as evidence against him, the State must prove, beyond a 

reasonable doubt, that it did not violate his constitutional rights under 

Miranda. State v. Marin, 172 N.H. 154, 159 (2019). Correspondingly, Miranda

warnings are not required if the defendant was not subject to a custodial 

interrogation. State v. Carroll, 138 N.H. 687, 696 (1994); see State v. Sachdev, 

171 N.H. 539, 548 (2018) (“[T]wo conditions must be met before Miranda

warnings are required: (1) the suspect must be ‘in custody’; and (2) he must be 

subject to ‘interrogation.’”). Here, there is no dispute that Hallam and McIver 

interrogated the defendant in the Impala. The only issue before us is whether

he was in custody when they did so. 

Custody entitling a defendant to Miranda protections requires formal 

arrest or restraint on freedom of movement to the degree associated with 

formal arrest. In re B.C., 167 N.H. 338, 342 (2015); accord State v. Jennings, 

155 N.H. 768, 772 (2007). In the absence of formal arrest, the court must 

determine whether a suspect’s freedom of movement was sufficiently curtailed 

by considering how a reasonable person in the suspect’s position would have 

understood the situation. Marin, 172 N.H. at 159; see also Stansbury v. 

California, 511 U.S. 318, 323 (1994) (per curiam) (“[T]he initial determination of 

custody depends on the objective circumstances of the interrogation, not on the 

subjective views harbored by either the interrogating officers or the person 

being questioned.”). To determine whether a reasonable person in the 

suspect’s position would believe himself to be in custody, the trial court should 

consider the totality of the circumstances of the encounter, including but not

limited to such factors as the number of officers present, the degree to which 

the suspect was physically restrained, the interview’s duration and character, 

and the suspect’s familiarity with his surroundings. Marin, 172 N.H. at 159-

60. Custody analyses, however, are rarely based upon a static set of 

circumstances. Id. at 160; accord State v. McKenna, 166 N.H. 671, 677 (2014). 

Interrogations are fluid: what may begin as noncustodial questioning may 

evolve over time into custodial questioning. McKenna, 166 N.H. at 677.
6

The trial court’s findings regarding “‘the circumstances surrounding the 

interrogation’” are entitled to the deference we normally accord factual findings. 

Marin, 172 N.H. at 160 (quoting J.D.B. v. North Carolina, 564 U.S. 261, 270 

(2011)); see also State v. Ford, 144 N.H. 57, 62 (1999) (explaining that “the trial 

court’s findings of historical facts relevant to the question of custody, that is, 

its determinations of ‘what happened,’” are entitled to the deference normally 

given to factual findings). However, because the ultimate determination of 

custody requires an application of a legal standard to historical facts, that 

determination is not merely a factual question, but a mixed question of law and 

fact. Marin, 172 N.H. at 160. “Unlike voluntariness, custody is a lawdominated mixed question in which ‘the crucial question entails an evaluation 

made after determination of the historical facts: if encountered by a 

“reasonable person,” would the identified circumstances add up to custody as 

defined in Miranda?’” Ford, 144 N.H. at 62-63 (brackets omitted) (quoting 

Thompson v. Keohane, 516 U.S. 99, 113 (1995)). Accordingly, although we will 

not overturn the trial court’s findings of historical facts unless they are 

contrary to the manifest weight of the evidence, we review the ultimate 

determination of custody de novo. In re E.G., 171 N.H. 223, 230 (2018). 

In addition to challenging the trial court’s custody ruling, the State 

challenges certain factual findings made by the trial court. The trial court 

stated in its order that it “was left with the impression that Officer Kekejian 

was essentially ‘guarding’ the defendant on the porch.” The State asserts that 

this “conclusion[] either stretched reasonable inference to its limit or [was] 

wholly unsupported by the record” because “[t]he defendant never elicited this 

fact or any fact that implied it . . . during cross-examination.” We question 

whether the trial court’s conclusion that Kekejian was essentially “guarding” 

the defendant is a finding of historical fact rather than an application of facts 

to the legal question of whether a reasonable person in the defendant’s position 

would have felt restraints on his freedom of movement consistent with formal 

arrest. See McKenna, 166 N.H. at 677-79. Even assuming, however, that the 

State correctly characterizes this as a factual finding, it is not against the 

manifest weight of the evidence. See E.G., 171 N.H. at 230. The trial court’s

“impression that Officer Kekejian was essentially ‘guarding’ the defendant” is 

supported by evidence in the record that, among other things, Kekejian ordered 

the defendant to leave his home, followed him outside, blocked the door to the 

home to prevent him from reentering, and did not leave the defendant’s side 

until Hallam and McIver arrived.

The State also takes issue with the court’s observation, in a footnote,

that Kekejian did not disclose in his report that he took the defendant’s phone 

or pat-frisked him. The court noted that Kekejian acknowledged these 

omissions from his report only on cross-examination. The court’s observation

is plainly supported by Kekejian’s testimony at the suppression hearing; our 

review of the transcript confirms that Kekejian did not acknowledge the 

omission of this information from his report until cross-examination. We have 
7

reviewed the State’s remaining assertions regarding the trial court’s factual 

findings and find them to be without merit. See Vogel v. Vogel, 137 N.H. 321, 

322 (1993). Thus, we turn to our custody analysis. 

There are numerous circumstances surrounding the defendant’s 

encounter with the police that weigh in favor of a finding that he was in 

custody at some point during the first recorded interrogation. For example, 

“the degree to which the defendant’s movements were restrained” suggests he 

was in custody. Marin, 172 N.H. at 162; see Jennings, 155 N.H. at 773-74. 

“The lack of handcuffs or similar devices is not dispositive, . . . effective 

restrictions on a defendant’s movement” need not be derived from such devices, 

but instead “can be a product of verbal, psychological, or situational restraint.” 

Marin, 172 N.H. at 162 (quotation and brackets omitted). “When a defendant 

is ‘not permitted freedom of movement within [his] own home,’ and is escorted 

everywhere by the police, it weighs in favor of a finding of custody.” Id. 

(quoting United States v. Mittel-Carey, 493 F.3d 36, 40 (1st Cir. 2007)); see

McKenna, 166 N.H. at 678-79. 

Here, “although the defendant may not have been placed in handcuffs or 

any similar device, he was restrained from early on in the encounter.” 

Jennings, 155 N.H. at 773. Kekejian ordered the defendant to leave as soon as 

he walked in the front door to his home, immediately followed the defendant 

outside to the partially enclosed porch, shut the door behind him, and 

positioned himself in front of it to block the defendant’s reentry. Kekejian

remained by the defendant’s side the entire time he was on the porch, and was 

joined by Ciszek, who occupied the porch almost the entire time the defendant 

did. Both officers remained with the defendant in the cold until Hallam and 

McIver arrived. Hallam and McIver then escorted the defendant to their 

vehicle, in view of Kekejian and Ciszek. We agree with the trial court that these

actions “‘would have conveyed to a reasonable person . . . that the officers did 

not intend to allow the defendant to leave their sight.’” (Quoting McKenna, 166 

N.H. at 678.); see Stansbury, 511 U.S. at 324-25. 

In addition, Kekejian pat-frisked the defendant and seized his phone. 

These factors weigh in favor of custody. See Jennings, 155 N.H. at 773-74; see 

also Tankleff v. Senkowski, 135 F.3d 235, 244 (2d Cir. 1998). The seizure of 

the defendant’s phone is an especially weighty factor: “[b]y denying the 

defendant access to his . . . phone[], the police effectively ensured that he was 

dependent upon them for any . . . communication with the outside world.” 

Jennings, 155 N.H. at 774; accord Marin, 172 N.H. at 163-64; see State v. 

McMillan, 55 P.3d 537, 539-40 (Or. Ct. App. 2002) (officer’s actions of 

preventing defendant from using his cell phone would have reasonably 

suggested to defendant that “the officers could exert control over his means of 

communication”). 
8

We next consider the “duration and character” of the interrogation. 

Marin, 172 N.H. at 160 (quotation omitted). “[T]he length of questioning can be 

a relatively undeterminative factor in the analysis of custody,” at least when

police do not engage in “the ‘marathon’ routine of questioning a suspect,” with 

which “Miranda was most obviously concerned.”

2 E.G., 171 N.H. at 237 

(quotation omitted). Here, the defendant was questioned about AV’s allegations 

over a period of approximately two hours. See Jennings, 155 N.H. at 774

(concluding that an interview length of “nearly two hours” weighed in favor of 

custody); see also, e.g., Mittel-Carey, 493 F.3d at 40 (interrogation length of 

ninety minutes to two hours weighed in favor of custody). Kekejian began 

questioning the defendant about the sexual assault allegation shortly after 

ejecting him from his apartment, and continued to ask the defendant questions 

about his whereabouts that morning until Hallam and McIver arrived 

approximately an hour later. See Sachdev, 171 N.H. at 551 (concluding that 

trial court did not err in determining length of interview by length of

“substantive questioning” rather than by length of overall interaction with 

police). Hallam and McIver then interrogated the defendant for an additional 

hour in the Impala. Thus, the duration of the police interrogation in this case

suggests that the defendant was in custody. See Jennings, 155 N.H. at 774.

In evaluating the character of the interrogation, we consider the presence 

or absence of both accusatory questions and accusatory statements. 

McKenna, 166 N.H. at 681. Accusatory questioning weighs in favor of custody 

because such questioning often conveys that the questioning officer believes 

the defendant is guilty and that he or she intends to arrest. See id. at 681-82. 

Accusatory questioning stands in contrast to “questioning of a purely general 

nature,” which does not weigh in favor of custody. Id. at 682. In addition to 

accusatory questioning, the presence or absence of accusatory statements is 

relevant to our analysis 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. at 683 (quoting 

State v. Muntean, 12 A.3d 518, 528 (Vt. 2010)). Therefore, “confronting the 

 

2 In analyzing whether an interrogation is custodial, we note that the character of an 

interrogation may impact whether the interrogation’s duration is a reliable indicator of custody. 

See E.G., 171 N.H. at 237; State v. Dedrick, 132 N.H. 218, 225 (1989), abrogated on other 

grounds by Ford, 144 N.H. at 62-63, and State v. Spencer, 149 N.H. 622, 625 (2003). 

Although the brevity of an interrogation generally weighs against a finding of custody, Sachdev, 

171 N.H. at 551, a particular interrogation might only have been brief because the officers’ 

questions were so accusatory that the defendant recognized the futility of resistance and 

confessed in short order, see E.G., 171 N.H. at 237. Indeed, “custody has been found in 

relatively brief interrogations where the questioning is of a sort where the detainee is aware 

that questioning will continue until he provides his interrogators the answers they seek.” Id. 

(quotation omitted); see also Dedrick, 132 N.H. at 225 (explaining that, when defendant was 

“accused of untruths,” “confronted with damning information,” and officers ignored defendant’s 

“vehement denials,” the character of interrogation signaled that period of questioning would 

continue until defendant confessed or asked to speak with an attorney). Thus, an 

interrogation’s character is often a more reliable barometer for custody than its duration.
9

defendant with evidence of guilt weighs in favor of custody.” Id. Finally, the 

extent to which the officers “raise[d] their voices or use[d] harsh language” is 

also relevant to our analysis of the interrogation’s character. Marin, 172 N.H. 

at 161. 

In this case, as noted, Kekejian began questioning the defendant about 

AV’s allegations shortly after ejecting him from his home. Kekejian asked the 

defendant whether he had gone inside AV’s bedroom that morning, about his 

living arrangements at the home, and about “what he had done” that morning. 

Kekejian also told the defendant, while blocking him from entering the home, 

that it was “being held as a scene.” Later, when Kekejian, Ciszek, and the 

defendant were waiting on the porch for Hallam and McIver to arrive, Kekejian 

renewed questioning the defendant as to his whereabouts that morning. 

Although some of Kekejian’s questions were general or non-accusatory in 

nature, we conclude that, on balance, the character of Kekejian’s discussions 

with the defendant weighs slightly in favor of custody. Cf. E.G., 171 N.H. at 

233-35 (contrasting accusatory questioning weighing in favor of custody from 

questioning that may lawfully occur during investigatory stop). 

Weighing much more decisively in favor of custody is the overwhelmingly 

accusatory nature of the detectives’ questioning and statements inside the 

Impala. Hallam and McIver repeatedly and doggedly accused the defendant of 

dishonesty and of sexually assaulting AV. “On numerous occasions 

throughout the interrogation the [detectives] asked the defendant why he had 

sexually abused [AV] and posited reasons for his actions.” McKenna, 166 N.H. 

at 683. For example, at one point Hallam said,

you were rubbing her f**king vagina. What, what were you doing it 

for? What was the purpose? . . . I, I’ll tell you straight up, I know 

why [inaudible] is because I’m f**king turned on and s**t and 

you’ve got to be straight up with me. I know why guys f**king do 

that s**t so I need you to be straight up with me with why you were 

doing it man, because I’m not stupid. 

As the above excerpt makes clear, the detectives’ “questions were premised 

upon the assumption that the defendant had committed the crime,” and would 

have communicated that assumption to a reasonable person in the defendant’s 

position. Id. at 682-83; see Stansbury, 511 U.S. at 325. In other words, the 

detectives’ questions “would have signaled [to] a reasonable [person] in the 

same circumstances that . . . as often as he made denials, they would renew 

their accusations.” Dedrick, 132 N.H. at 225. In addition, Hallam and McIver 

repeatedly confronted the defendant with AV’s allegations, telling him that they 

were certain that the allegations were true. See McKenna, 166 N.H. at 683

(discussing facts of Jennings); Jennings, 155 N.H. at 769, 774 (explaining that 

interrogation’s character weighed in favor of custody when “[w]ithin minutes of 

being inside the interview room . . . [a police officer] confronted the defendant 
10

with [the victim’s] allegations of sexual assault and said he was certain she was 

telling the truth,” and when defendant was “repeatedly confronted . . . in this 

manner”). “Coupled with the control exercised by the police from the beginning 

of the encounter, this clear indication that the police believed the defendant to 

be guilty of sexual assault would have signaled to a reasonable person that his 

freedom of movement was curtailed to the degree associated with formal 

arrest.”3 Jennings, 155 N.H. at 774; see Dedrick, 132 N.H. at 225.

Several additional circumstances support the conclusion that the 

defendant was in custody during the Impala interview. “The number of officers 

present is a relevant factor in a custody determination — when multiple officers 

isolate and question a defendant, it is more likely that the defendant is in 

custody.” E.G., 171 N.H. at 237. Here, the defendant was in the presence of 

four visibly armed police officers, some of whom were in uniform. See Marin, 

172 N.H. at 163 (fact that officers were in uniform and were visibly armed 

weighed in favor of custody); Jennings, 155 N.H. at 773 (“The fact that three 

officers and a prosecutor went to meet the defendant certainly bolsters the trial 

court’s custody determination.”). Although no more than two officers 

questioned the defendant at any given time, Kekejian and Ciszek were within 

viewing distance from the Impala. See McKenna, 166 N.H. at 685. We also 

note, as did the trial court, that the fact that the defendant had remained for 

an hour on a partially enclosed porch on a cold and windy day, without a 

jacket, suggests that a reasonable person in his position would believe he was 

in custody. 

Moreover, although Hallam’s car was parked in front of the defendant’s 

home, a location which was familiar to the defendant, the car itself was an 

unfamiliar location. See Marin, 172 N.H. at 164 (noting that police cruiser was 

an unfamiliar location); cf. Jennings, 155 N.H. at 774 (fact that interview took 

place in “closed-door, confined atmosphere” suggested custody). In addition, 

the defendant was never told that he was not under arrest, and Kekejian did 

not tell the defendant he could refuse to answer his questions, that he could 

refuse to wait for Hallam, or that he could refuse to speak with Hallam. See

McKenna, 166 N.H. at 679-80. These factors weigh in favor of custody.

To be sure, not all of the circumstances of the defendant’s encounter 

with the police suggest that he was in custody during the Impala interrogation. 

Here, “as in virtually every case, there are some factors that weigh in favor of a 

 

3 We note that the trial court had the benefit of reviewing the recording of the interrogation inside 

the Impala. The court determined, based upon this audio recording, that “the tone of the 

interview was, for the most part, polite.” The State has not provided us with the recording on 

appeal. However, even assuming that the trial court’s finding as to the tone of the interview is 

supported by the recording, see Sachdev, 171 N.H. at 548-49, “[n]either the absence of hostility on 

the part of the [detectives], nor the polite tone of the interrogation, neutralizes the content or 

import of the accusatory questions and statements, nor diminishes the weight which we accord to 

them,” McKenna, 166 N.H. at 684.
11

finding of custody, and some that weigh against such a finding.” Marin, 172 

N.H. at 160. Hallam and McIver wore plain clothes, not police uniforms. See

Sachdev, 171 N.H. at 553. Neither Kekejian nor Ciszek physically prevented 

the defendant from leaving the porch, the defendant was not placed in 

handcuffs or other similar devices, and the porch of the defendant’s home was 

a familiar location. See Marin, 172 N.H. at 164; State v. Locke, 149 N.H. 1, 6-7 

(2002). But see McKenna, 166 N.H. at 677 (“The location of questioning is not, 

by itself, determinative: a defendant may be in custody in his own home but 

not in custody at a police station.” (quotation omitted)). 

The State emphasizes that Hallam told the defendant he should “feel 

free” to leave at the outset of the interrogation in the Impala. “[O]ur cases 

reflect that we have consistently regarded as a significant factor in our custody 

analysis whether a suspect is informed that he or she is at liberty to terminate 

the interrogation.” McKenna, 166 N.H. at 680. Thus, a “person who is clearly

advised that he is free to leave is ordinarily not in custody.” Jennings, 155 

N.H. at 775 (emphasis added). Here, however, the defendant was not clearly 

advised that he was free to leave. Rather, based upon the recording of the 

Impala interrogation, the trial court found that Hallam and the defendant were 

talking over each other when Hallam stated that the defendant should “feel 

free” to leave. As such, the trial court discounted the effectiveness of Hallam’s 

statement. In light of the State’s failure to provide us with this recording on 

appeal, we must assume that the recording supports the trial court’s 

determination as to this statement’s effectiveness. See State v. Thiel, 160 N.H. 

462, 464 (2010). 

Finally, we do not view as especially significant, in the context of this 

case, Hallam’s statement to the defendant that he did not want him to feel 

“forced” to speak with the detectives, or Hallam’s invocation of the word 

“voluntarily” at the interrogation’s outset. In light of all the circumstances of 

the defendant’s encounter with the police that morning, “we cannot turn a 

blind eye toward a custodial relationship simply because the police made a[n] 

. . . attempt to clothe their custody of the defendant in the language of 

voluntariness.” Jennings, 155 N.H. at 772 (brackets omitted). 

There are times when actions speak louder than words. 

Ultimately, police conduct should be judged in terms of what was 

done rather than what the officer may have called it at the time. 

Here, as noted above . . . , many indicia of custody were present, 

and the accusatory nature of the interview is undeniable. By the 

time the police confronted the defendant in the closed-door 

interview . . . with both [the victim’s] accusations and their own 

certainty that the accusations were true, a reasonable person in 

the defendant’s position would have found his freedom curtailed to 

the extent that Miranda warnings were required. Thus, we think it 

implausible that the defendant could have risen from his seat and 
12

freely exited the interview . . . in the middle of an escalating period 

of interrogation and gone along his merry way . . . .

Id. at 775 (quotations and citation omitted). 

Based upon the totality of the circumstances, we conclude that a 

reasonable person in the defendant’s position would have believed himself to be 

in custody at the point specified by the trial court in its suppression order. 

Therefore, we hold that the defendant was in custody for Miranda purposes at

that point, and the defendant’s statements made after the interrogation became 

custodial must be suppressed. Because the defendant prevails under the State

Constitution, there is no need to analyze the parties’ arguments under the 

Federal Constitution. See Jennings, 155 N.H. at 776; Ball, 124 N.H. at 237. 

III

We turn now to the defendant’s statements at the police station. The 

trial court suppressed these statements because it found that the State did not 

prove beyond a reasonable doubt that they were voluntarily given. The State 

argues that the court erred in so finding. Again, we first address the 

voluntariness issue under the State Constitution and rely upon federal law 

only to aid our analysis. See Ball, 124 N.H. at 231-33. 

Our State Constitution requires the State to prove beyond a reasonable 

doubt that a defendant’s confession is voluntary. State v. Ruiz, 170 N.H. 553, 

559 (2018); see N.H. CONST. pt. I, art. 15. To be voluntary, a confession must 

be the product of an essentially free and unconstrained choice and not be 

extracted by threats, violence, direct or implied promises of any sort, or by the 

exertion of any improper influence or coercion. Ruiz, 170 N.H. at 560. We will 

not overturn a trial court’s determination that a confession was not voluntary 

unless it is contrary to the manifest weight of the evidence, as viewed in the 

light most favorable to the defendant. See State v. Cloutier, 167 N.H. 254, 258 

(2015). 4

 

4 The State, quoting Ruiz, asserts that we must review the evidence of voluntariness in the light 

most favorable to the State. We stated in Ruiz that the trial court’s ruling – that the defendant’s 

confession was voluntarily given – would “not be overturned unless it was contrary to the manifest 

weight of the evidence, as viewed in the light most favorable to the State.” Ruiz, 170 N.H. at 560; 

see also Cloutier, 167 N.H. at 258 (specifying that we “will not overturn a trial court’s 

determination that a confession is voluntary unless it is contrary to the manifest weight of the 

evidence, as viewed in the light most favorable to the State” (emphasis added)); State v. Rezk, 150 

N.H. 483, 486 (2004) (same). That standard of review applied in Ruiz because the defendant was 

the appealing party with the burden of demonstrating that the court’s voluntariness ruling was 

erroneous. See Ruiz, 170 N.H. at 555, 559-60. See generally Gallo v. Traina, 166 N.H. 737, 740 

(2014) (“[A]ppealing parties . . . have the burden of demonstrating reversible error.”). Here, 

however, the trial court ruled that the defendant’s second set of statements was not voluntarily 

given, and the State is the party appealing that ruling. “A determination of the voluntariness of a 

confession is a question of fact for the trial court to decide . . . .” State v. Chapman, 135 N.H. 390, 
13

When, as in this case, a defendant’s post-Miranda confession is preceded 

by an earlier confession that violated his Miranda rights, we have articulated 

five factors which guide our analysis under part I, article 15 as to whether the 

second confession was voluntary in light of the Miranda violation: (1) the time 

lapse between the initial confession and the subsequent statements; (2) the 

defendant’s contacts, if any, with friends or family members during that period 

of time; (3) the degree of police influence exerted over the defendant; (4) 

whether the defendant was advised that his prior admission could not be used 

against him; and (5) whether the defendant was advised that his prior 

admission could be used against him. State v. Fleetwood, 149 N.H. 396, 405-

06 (2003); accord Ruiz, 170 N.H. at 560. No single factor is dispositive. Ruiz, 

170 N.H. at 560. 

The State argues that the trial court committed legal error when it 

“looked beyond the five factors” highlighted above in analyzing the 

voluntariness of the defendant’s second set of statements. The State further 

contends that the trial court committed legal error by applying the “cat out of 

the bag” theory to the defendant’s claim, a theory which we rejected under the 

New Hampshire Constitution in State v. Aubuchont, 141 N.H. 206, 208-09

(1996). 

We begin with the latter contention. “Under Federal constitutional law 

prior to . . . Oregon v. Elstad, 470 U.S. 298 (1985), . . . an admission or 

confession of guilt obtained from an accused person in violation of the Miranda

requirements was presumed to taint any subsequent confession made by the 

accused . . . .” Com. v. Smith, 593 N.E.2d 1288, 1291 (Mass. 1992). This 

presumption came to be known as the “cat out of the bag” theory, based on the 

United States Supreme Court’s use of that phrase in United States v. Bayer, 

331 U.S. 532, 540 (1947). See State v. Smith, 834 S.W.2d 915, 919 (Tenn. 

1992). See generally Katherine E. McMahon, “Cat-Out-of-the-Bag” & “Breakin-the-Stream-of-Events”: Massachusetts’ Rejection of Oregon v. Elstad for 

Suppression of Warned Statements Made After a Miranda Violation, 20 W. New 

Eng. L. Rev. 173, 185-87 (1998). In Elstad, however, the United States 

Supreme Court disclaimed the notion that a Miranda violation renders 

subsequent confessions, obtained after the administration of Miranda

warnings, presumptively involuntary. See Elstad, 470 U.S. at 314. Instead the 

Court concluded that, “absent deliberately coercive or improper tactics in 

obtaining the initial statement, the mere fact that a suspect has made an 

unwarned admission does not warrant a presumption” that a subsequent, 

post-Miranda confession was involuntary. Id. 

 

399 (1992) (quotation omitted). That factual determination, made after considering the totality of 

the relevant evidence, “is entitled to stand” unless the appealing party demonstrates that it is 

contrary to the manifest weight of the evidence as viewed in the light most favorable to the 

appellee, which, in this case, is the defendant. Id. 
14

In Aubuchont, the defendant argued that, in interpreting part I, article 

15 of the New Hampshire Constitution, we should reject the Elstad Court’s 

holding. Aubuchont, 141 N.H. at 208. “The defendant assert[ed] that instead, 

we should follow those jurisdictions which hold that, pursuant to state 

constitutional law, ‘extraction of an illegal, unwarned confession from a 

defendant raises a rebuttable presumption that a subsequent confession, even 

if preceded by proper Miranda warnings, is tainted by the initial illegality’ . . . .” 

Id. at 208-09 (quoting Smith, 834 S.W.2d at 919). We declined to apply such a 

presumption under our State Constitution. Id. at 209. Instead, we explained 

that we would “apply our traditional part I, article 15 due process 

voluntariness inquiry and ask whether[,] considering the totality of the 

circumstances, the second confession [was] the product of an essentially free 

and unconstrained choice.” Id. (quotations and citation omitted). 

We refined our approach to determining the voluntariness of postMiranda-violation confessions in State v. Fleetwood. See Fleetwood, 149 N.H. 

at 402-06. In Fleetwood, unlike in Aubuchont, “there was one continuous 

interrogation by the same detectives at one location interrupted by only a 

fifteen-minute break to comply with Miranda.” Id. at 404; see Aubuchont, 141 

N.H. at 206-07. These facts, we said, “br[ought] into sharp focus the concern 

that Elstad may ‘give a green light to law enforcement officers to ignore the 

requirements of Miranda until after such time as they are able to secure a 

confession.’” Fleetwood, 149 N.H. at 404 (quoting United States v. Carter, 884 

F.2d 368, 373 (8th Cir. 1989)). In light of this concern, we articulated specific 

factors that the traditional part I, article 15 voluntariness inquiry “‘necessarily 

encompasses’” as applied to post-Miranda-violation confessions:

“[T]he time lapse between the initial confession and the subsequent 

statements; the defendant’s contacts, if any, with friends or family

members during that period of time; the degree of police influence 

exerted over the defendant; whether the defendant was advised 

that her prior admission could not be used against her; or whether 

the defendant was told that her previous statement could be used 

against her.”

Id. at 405-06 (quoting United States v. Wauneka, 770 F.2d 1434, 1440-41 (9th 

Cir. 1985)) (brackets and ellipsis omitted); accord Ruiz, 170 N.H. at 560. We 

did not hold in Fleetwood, however, that courts should consider only these 

factors to the exclusion of all others. See Fleetwood, 149 N.H. at 402-08. 

Rather, we reaffirmed that, “as we stated in Aubuchont . . . , the proper 

analysis is a totality of the circumstances test.” Id. at 405. 

In this case, the trial court properly conducted a totality of the 

circumstances analysis. The court discussed and applied the factors 

articulated in Fleetwood, as well as other factors we have found relevant when 

conducting voluntariness analyses, such as whether the police complied with 
15

Miranda in obtaining the second confession, see State v. Bilodeau, 159 N.H. 

759, 764 (2010), and whether the police made promises, threats, or engaged in 

displays of force, see Ruiz, 170 N.H. at 560. In ruling that the State failed to 

prove beyond a reasonable doubt that the defendant’s second confession was 

voluntary, the court accorded significant weight to “the manner in which 

Detective Hallam utilized the defendant’s ‘prior confession in obtaining [the] 

second confession.’” (Quoting Wauneka, 770 F.2d at 1440.) 

However, contrary to the State’s assertions on appeal, the trial court’s 

decision to accord significant, even determinative, weight to this factor did not 

equate to the application of a presumption that the defendant’s second 

confession was involuntary due to the earlier Miranda violation. Rather than 

presuming that the defendant’s unwarned confession rendered the second 

involuntary, the trial court carefully considered the specific manner in which 

Hallam deployed the defendant’s first confession to obtain the second. The 

court noted, for example, that “Hallam began the second interrogation by 

incorporating the defendant’s [first confession] into his questions,” which the 

court found “even more troublesome” in this particular case because Hallam 

“was only able to extract the first confession after repeatedly accusing the 

defendant of lying and ignoring his consistent denials.” Because the trial 

court’s decision to accord substantial weight to this circumstance in its 

analysis of the totality of the circumstances did not amount to the application 

of a legal presumption, we reject the State’s argument that the trial court erred 

as a matter of law by applying the “cat out of the bag” theory in considering the 

voluntariness of the defendant’s second set of statements. 

The State further argues that the trial court erred as a matter of law 

because the manner in which a police officer uses a defendant’s first, 

unwarned confession to obtain a second is, essentially, legally irrelevant to the 

question of whether the second was involuntary, insofar as such a 

consideration requires law enforcement to predict whether a judge would grant 

a motion to suppress the first confession on Miranda grounds. We disagree. 

Although we have cautioned, in analyzing the voluntariness of post-Mirandaviolation confessions, that it would be “impractical to require the police to 

determine the admissibility of an unwarned confession,” Ruiz, 170 N.H. at 561-

62 (quotation omitted), we have never gone so far as to hold that “the manner 

in which the officers utilized this prior confession in obtaining a second 

confession,” Wauneka, 770 F.2d at 1440, is irrelevant to whether the second 

was given voluntarily, see Aubuchont, 141 N.H. at 209-10.

Indeed, in Aubuchont we affirmed the trial court’s finding that the 

defendant’s post-Miranda-violation confession was voluntary. Aubuchont, 141 

N.H. at 209. In reaching that conclusion, however, we considered the fact that 

the officers “scheduled the [second] interview to ‘go over’” the defendant’s first, 

unwarned statements. Id. While we were not convinced that “this [fact] alone

. . . g[a]ve rise to the conclusion that the second confession was involuntary,” 
16

we nevertheless considered this factor under our “traditional part I, article 15 

due process voluntariness inquiry.” Id. (emphasis added); see Wauneka, 770 

F.2d at 1440. There is ample justification for the trial court’s consideration of 

Hallam’s use of the first confession to obtain the second as a relevant factor in 

the totality of the circumstances. See Aubuchont, 141 N.H. at 209; Wauneka, 

770 F.2d at 1440 (noting that courts should evaluate how officers used a 

confession obtained in violation of Miranda to obtain a second confession); see 

also Joshua I. Rodriguez, Note, Interrogation First, Miranda Warnings 

Afterward: A Critical Analysis of the Supreme Court’s Approach to Delayed 

Miranda Warnings, 40 Fordham Urb. L.J. 1091, 1121 (2013) (“Most courts 

evaluate whether post-Miranda questioning referenced pre-Miranda statements 

and ask whether the police confronted the suspect with her prior statements.”). 

Finally, the State argues that the trial court’s determination is against 

the manifest weight of the evidence. Viewing the evidence in the light most 

favorable to the defendant, we disagree. See Cloutier, 167 N.H. at 258. The 

trial court found, and we concur, that “[t]his case presents a close call.” On 

the one hand, for example, over eleven hours lapsed between the defendant’s 

first and second confessions. During most of that time the defendant was not 

in police custody, spending at least some of that time with his father and at his 

father’s home. These facts tend to support a finding of voluntariness. See

Aubuchont, 141 N.H. at 209. 

On the other hand, based on the trial court’s review of the video 

recording of the second set of statements, the court found that “less than 

twenty seconds after Detective Hallam finished the Miranda process,” he 

brought up the defendant’s first set of inculpatory statements.5 See id. Almost 

immediately after Hallam administered Miranda warnings, he told the 

defendant that he “wanted to talk to him again,” and that “we went over this 

already and . . . we talked about it in the car out at the . . . scene.” Hallam told 

the defendant that there were “inconsistencies” in the defendant’s first set of 

statements, and that Hallam thought the defendant had “led [him] in the wrong 

direction” despite the fact that the defendant had “said [he] gave [Hallam] the 

truth the first time, 100 percent.” Hallam told the defendant, “[i]t is what it is,” 

and that, because the defendant had “been arrested,” he wanted the defendant 

to be “100 percent honest” this time. Hallam continued to bring up the 

defendant’s first set of inculpatory statements at multiple points throughout 

the second interrogation, telling the defendant to “skip all that B.S. that we 

were doing out there,” and that they “had . . . a 50 minute conversation about 

B.S. until we got to the truth . . . .” We agree with the trial court that Hallam’s 

use of the first set of statements in obtaining the second weighs in favor of a 

 

5 On appeal, the State has not provided us with this video recording. Therefore, we must assume 

that the evidence was sufficient to support the trial court’s factual findings as they relate to the 

second interrogation. See Sachdev, 171 N.H. at 548-49. 
17

finding that the latter statements were not voluntary. See id.; see also United 

States v. Gonzalez-Lauzan, 437 F.3d 1128, 1139 (11th Cir. 2006) (concluding 

that second confession was not involuntary because, in part, “the officers did 

not have prewarned incriminating statements with which to cross-examine [the 

defendant] in order to pressure him to repeat them”). 

After balancing these and other factors, the trial court was left with “a 

reasonable doubt as to the voluntariness” of the defendant’s second set of 

statements. Accordingly, the court determined that the State had failed to 

carry its burden to prove that these statements were voluntary. See Ruiz, 170 

N.H. at 559 (noting that the State has the burden of proving voluntariness 

beyond a reasonable doubt). From our review of the record, viewed in the light 

most favorable to the defendant, we cannot say that the trial court’s 

determination is against the manifest weight of the evidence. See Cloutier, 167 

N.H. at 258. Accordingly, we affirm the court’s ruling as to the involuntariness 

of the defendant’s second set of statements and its order suppressing those 

statements. Because the defendant prevails under the State Constitution, 

there is no need to address the parties’ arguments under the Federal 

Constitution. See Jennings, 155 N.H. at 776; Ball, 124 N.H. at 237.

Affirmed and remanded.

HICKS, BASSETT, and DONOVAN, JJ., concurred.