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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Rockingham

No. 2013-009

THE STATE OF NEW HAMPSHIRE

v.

TIMOTHY MCKENNA

Argued: November 21, 2013

Opinion Issued: September 9, 2014

Joseph A. Foster, attorney general (Elizabeth C. Woodcock, assistant 

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

Andrew F. Cotrupi, of Hampton, by brief and orally, and Samdperil & 

Welsh, PLLC, of Exeter (Richard E. Samdperil on the brief), for the defendant.

BASSETT, J. Following a jury trial in Superior Court (McHugh, J.), the 

defendant, Timothy McKenna, was convicted of six counts of aggravated 

felonious sexual assault. RSA 632-A:2 (2007). Prior to trial, the defendant 

moved to suppress his statements to the police on the ground that he was 

subject to a custodial interrogation without being informed of his Miranda

rights. See Miranda v. Arizona, 384 U.S. 436 (1966). After an evidentiary 

hearing, the Superior Court (Delker, J.) denied the motion. The defendant 

appeals the trial court’s denial of his motion to suppress. We reverse and 

remand.
2

The following facts are drawn from the trial court’s order or from 

uncontroverted testimony at the pretrial suppression hearing. In October 

2010, the Newmarket Police Department received a report that K.L. had been 

sexually abused by the defendant approximately nine to fourteen years earlier. 

Lieutenant Kyle True and Sergeant Tara Laurent investigated the allegations 

and obtained a warrant for the defendant’s arrest. On October 22, 2010, True 

and Laurent, accompanied by New Hampshire State Trooper Rella, drove in two 

vehicles — one fully-marked State Police cruiser and one unmarked Ford 

Expedition — to a campground and restaurant owned by the defendant in 

Errol. The restaurant is located at the end of a one-eighth mile driveway and is 

not visible from the road. The driveway ends in a large clearing, surrounded by 

woods, which includes a one-acre field where the parking lot and restaurant 

are located. 

Rella, dressed in his State Police uniform and armed with his service 

weapon, sought out the defendant to request that he speak to the officers. The 

Newmarket officers waited outside the restaurant. They wore jackets with the 

Newmarket police badge and their names embroidered on the front. Although 

both Newmarket officers were also armed, their jackets covered their weapons. 

The officers had an arrest warrant in their possession, and it was their 

intention to arrest the defendant that day, unless the defendant provided the 

officers information that established that he could not have committed the 

crime — for example, if the defendant had evidence that he had been outside of 

the country during the alleged incidents. True testified that he was looking to 

elicit a confession from the defendant. 

Rella and the defendant met with the two officers. True then asked the 

defendant to speak with him and Laurent without either the defendant’s 

girlfriend or Rella present. True explained that the subject that they intended 

to discuss was private. He suggested that they sit in the unmarked Ford 

Expedition because the outside temperature was thirty-five degrees and the 

officers were not dressed for the outdoors. Laurent testified that the defendant 

was hesitant, and asked whether they could walk and talk instead. The 

officers agreed, and the two officers and the defendant began walking. Laurent 

testified that Rella and the defendant’s girlfriend walked in the opposite 

direction. Rella then returned to his cruiser, which he had parked in a location 

from which he was able to watch the defendant, True, and Laurent as they 

walked in the clearing. 

The officers began by informing the defendant that they were there to 

“discuss [him] molesting [K.L.].” The defendant responded by saying that he 

“did not remember that.” Laurent then pulled out a picture of K.L. and showed 

it to the defendant. The defendant said he remembered her and that she was a 

“cute girl.” Laurent told the defendant that he was not under arrest, and that 

the officers had come to see him because they wanted to get his side of the 

story. Laurent noticed that the defendant began to shake when the officers 
3

said that they were from Newmarket, and that as they spoke, he looked very 

nervous and was shaking even harder, so she asked him whether he was cold. 

The defendant responded that he was not cold, as he had just been working. 

The interrogation continued. 

For approximately one hour and fifteen minutes, the defendant walked to 

different parts of the clearing, and the officers followed him. They did not allow 

the defendant to leave Rella’s line of sight. At one point, when the defendant 

began to walk into the woods, True said: “Hold it Tim, we’re not walking out 

there. I don’t want to leave the sight of the trooper.” Although the defendant 

did not verbally respond, he stopped walking into the woods and changed 

direction. The officers continued to follow the defendant and ask questions. 

When the defendant walked to his truck to get more cigarettes, the officers 

again followed him. While he sat in the driver’s seat of the truck with his feet 

hanging out of the open door, the officers stood outside the vehicle and 

continued the questioning. 

The two officers and the defendant spoke in a conversational tone. The 

defendant never unequivocally denied molesting K.L.; however, he denied 

having an “inappropriate relationship” with her, and repeatedly told the officers 

that he did not remember molesting K.L. The defendant often responded to the 

officers with questions of his own about the investigation. On multiple 

occasions during the interrogation, the officers told the defendant that they did 

not believe him, urging him to tell the truth. Many of the questions asked by 

the officers were premised upon the assumption that the defendant was guilty.

The officers also posited numerous reasons as to why the defendant might have 

committed the crime — that he was emotionally attached to K.L., that he was

sexually attracted to her, or that he wanted to hurt her. The defendant 

continued to shake as the interrogation continued. He was chain smoking, 

and at one point his breathing became shallow.

There is no evidence in the record that before or during the interrogation

the defendant was told that he was free to leave the property or informed of his 

Miranda rights. Nor is there evidence that the officers informed him that he 

was free to ask them to leave the property, or that he was not required to 

answer their questions.

After approximately one hour of questioning, Laurent asked whether the 

defendant had had an emotional relationship with K.L. The defendant denied 

it. True then said, “You just wanted to come.” The defendant nodded his head 

and responded, “Yes, that was probably it.” True then asked if the defendant 

had had oral sex with K.L. The defendant responded, “Yes.” He thereafter 

made additional incriminating statements. After the defendant made these 

admissions, the police accompanied him into the restaurant, where he spoke to 

his girlfriend. Shortly thereafter, he was arrested.
4

Prior to trial, the defendant moved to suppress his statements, arguing 

that the officers violated his rights under both the New Hampshire and United 

States Constitutions by subjecting him to a custodial interrogation without 

informing him of his Miranda rights. Following an evidentiary hearing during 

which the only witnesses were the two Newmarket officers, the trial court 

denied the defendant’s motion. The court concluded that the defendant was 

not in custody as he “was familiar with his surroundings, there were only two 

officers present, and the defendant was not physically restrained.” The court 

stated that the “type of freedom afforded the defendant during the interview 

bears none of the hallmarks of a formal arrest.” After a three-day jury trial, the 

defendant was convicted of six counts of aggravated felonious sexual assault. 

This appeal followed.

On appeal, the defendant argues that his rights under Part I, Article 15 

of the New Hampshire Constitution and the Fifth and Sixth Amendments to the 

United States Constitution were violated. Specifically, he contends that the 

trial court erred in not suppressing his statements because, given that a 

reasonable person in his position would have believed himself to be in custody,

the police should have advised him of his rights under Miranda. 

We first address the defendant’s claim under the State Constitution and 

rely upon federal law only to aid in our analysis. State v. Ball, 124 N.H. 226, 

231–33 (1983). Before the 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. Gribble, 165 N.H. 1, 10 (2013); cf. State v. Rathbun, 

132 N.H. 28, 30 (1989) (ruling State’s burden to demonstrate defendant’s 

statement was spontaneous, and thus outside Miranda’s ambit, subject to 

preponderance standard). Compare State v. Lantagne, 165 N.H. ___, ___, 83 

A.3d 397, 399 (2013) (explaining State bears burden on motion to suppress),

with, e.g., United States v. Davis, 792 F.2d 1299, 1309 (5th Cir. 1986) (stating 

that the defendant “had the burden of proving that he was under arrest or in 

custody”). Here, it is undisputed that the defendant was interrogated, and that 

he did not receive Miranda warnings; accordingly, the sole issue before us is 

whether that interrogation was custodial.

“Custody entitling a defendant to Miranda protections requires formal 

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

arrest.” State v. Jennings, 155 N.H. 768, 772 (2007) (quotation omitted). “In 

the absence of formal arrest, we 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.” Id. “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.” Id. (quotation 

omitted). “To determine whether a reasonable person in the defendant’s 

position would believe himself in custody, the trial court should consider the 
5

totality of the circumstances of the encounter,” id. (quotation omitted),

“including, but not limited to, factors such 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.” 

Id. at 773. 

For purposes of appellate review, 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 we normally accord its factual 

findings. State v. Ford, 144 N.H. 57, 62 (1999) (quotation omitted). Because 

the ultimate determination of custody requires an application of a legal 

standard to historical facts, it is not merely a factual question but a mixed 

question of law and fact. Id. In a custody analysis, “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?” Id. at 63 (quoting Thompson v Keohane, 

516 U.S. 99, 113 (1995)) (brackets omitted). The trier of fact is not in an 

appreciably better position than we are to answer that question. Id. Therefore, 

although we will not overturn the factual findings unless they are contrary to 

the manifest weight of the evidence, we review the ultimate determination of 

custody de novo. Id.

Here, the trial court’s findings of historical facts relating to custody are 

not in dispute: the material facts are based upon the uncontroverted 

testimony of the two Newmarket officers. Moreover, neither party challenges 

the trial court’s underlying factual findings. Accordingly, in our custody 

analysis we accept and rely upon the historical facts as set forth in the 

suppression order. 

We begin by observing that our analysis of whether a defendant was in 

custody during police interrogation is rarely based upon a static set of 

circumstances. Interrogations are fluid: What may begin as noncustodial 

questioning may evolve over time into custodial questioning. See, e.g., 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).

A number of factors must be balanced in determining whether, and at 

what point, a defendant was in custody during police interrogation. See, e.g., 

Jennings, 155 N.H. at 772, 773. Here, we first examine the degree to which 

the officers restrained the defendant’s movement. As we observed in Jennings, 

the lack of handcuffs or similar devices is not dispositive, see id. at 773;

indeed, effective restrictions on a defendant’s movement can be a product of

verbal, psychological, or situational restraint. See United States v. BeraunPanez, 812 F.2d 578, 580 (9th Cir.) (“Although not physically bound, [the 

suspect] was subjected to psychological restraints just as binding.”), modified, 

830 F.2d 127 (1987). This is so because the “likely effect on a suspect of being 
6

placed under guard during questioning, or told to remain in the sight of 

interrogating officials, is to associate these restraints with a formal arrest.” 

United States v. Griffin, 922 F.2d 1343, 1350-51 (8th Cir. 1990); see id. at 

1354 (finding defendant’s freedom restrained to degree associated with formal 

arrest because “he was accompanied by an officer when he retrieved cigarettes 

from other rooms in [his home] and was told to remain in view of the agents at 

all times”); cf. United States v. Hughes, 640 F.3d 428, 436 (1st Cir. 2011) 

(finding no custody when officers escorted defendant outside to smoke a 

cigarette, but did not limit his movement, and “defendant was not unduly 

intimidated by the interrogating officers,” as shown by his pausing during 

cigarette break). 

In United States v. Mittel-Carey, the First Circuit Court of Appeals 

concluded that the level of control that the officers exercised over the defendant 

during the interrogation conducted at the defendant’s home carried the most 

weight in its custody analysis — officers ordered the defendant to dress and go 

downstairs, told him where to sit, and followed the defendant on the three 

occasions that he was permitted to move within his home. United States v. 

Mittel-Carey, 493 F.3d 36, 40 (1st Cir. 2007). The court explained that this 

factor weighed heavily in favor of custody, despite the defendant’s familiarity 

with the surroundings. Id. Here, similarly, the officers accompanied the 

defendant wherever he walked around his property. True agreed that, from the 

moment that the officers first spoke with the defendant, True knew that he was 

not going to allow the defendant to leave his sight. Although True did not

verbally disclose his intent to the defendant, his actions — following the 

defendant everywhere he walked, including when he went to his truck to get 

more cigarettes — would have conveyed to a reasonable person the reality that 

the officers did not intend to allow the defendant to leave their sight. See

Stansbury v. California, 511 U.S. 318, 325 (1994) (“An officer’s knowledge or 

beliefs may bear upon the custody issue if they are conveyed, by word or deed, 

to the individual being questioned.”).

Moreover, the officers also intervened to prevent the defendant from 

freely moving about his property. When he began walking into the woods, True 

said, “Hold it Tim, we’re not walking out there. I don’t want to leave the sight 

of the trooper.” Throughout the interrogation, the officers and the defendant

stayed within forty to fifty yards of Rella, and the defendant was aware of

Rella’s presence. Although the defendant was generally determining the 

direction of the perambulation, as the trial court found, “the officers did not 

allow the defendant to enter the woods, or leave Trooper Rella’s line-of-sight.” 

True’s testimony that the reason that the defendant was told not to enter 

the woods was officer safety does not impact our analysis: “[I]t is often the case 

that suspects are escorted or chaperoned during questioning for reasons 

unrelated to custody,” including for safety reasons, but “the relevant inquiry is 

the effect on the suspect.” Griffin, 922 F.2d at 1350 (quotation omitted).
7

Compare id. at 1354, with United States v. Lifshitz, No. 03 Cr. 572 (LAP), 2004 

U.S. Dist. LEXIS 18571, at *21-22 (S.D.N.Y. Sept. 15, 2004) (finding no custody 

despite restrictions on defendant because agent specifically explained to 

defendant that restrictions were for safety reasons). In Griffin, the court noted 

that, although the officers may have escorted the defendant from room to room 

for safety reasons, that purpose was not disclosed to the defendant, and, 

therefore, did not influence the analysis. Griffin, 922 F.2d at 1354. Similarly, 

here, although the officers may have had safety concerns, because those 

concerns were never communicated to the defendant, they do not influence our 

analysis of custody. 

Custody for Miranda purposes can arise because of a formal arrest or the 

functional equivalent of arrest; accordingly, the fact that a suspect is not 

“under arrest” does not preclude a finding of custody. See, e.g., Jennings, 155 

N.H. at 772, 775-76 (defendant was in custody despite not being under arrest). 

Nor is a statement to a suspect that he is not under arrest sufficient, by itself,

to establish a lack of custody. Although such a statement generally weighs in 

favor of a finding of non-custody, see, e.g., United States v. Salvo, 133 F.3d 

943, 951 (6th Cir. 1998), it is not dispositive; rather it is but one factor to be 

weighed in the custody analysis. 

Given that informing the defendant that he is not under arrest does not 

end the custody inquiry, we also consider the fact that there is no evidence that 

the defendant was informed that he was free to terminate the interrogation. 

See United States v. Colonna, 511 F.3d 431, 435-36 (4th Cir. 2007) (finding 

that although the defendant was told that he “was not under arrest,” which 

weighed in favor of a conclusion of no custody, the defendant was in custody, 

in part because he “was never told that he was free to leave or that he did not 

have to respond to questions”); see also United States v. Griffin, 7 F.3d 1512, 

1518 (10th Cir. 1993) (“[T]he extent to which the suspect is made aware that he 

or she is free to refrain from answering questions or to end the interview at will 

often defines the custodial setting. . . . Conversely, the lack of a police 

advisement that the suspect is at liberty to decline to answer questions or free 

to leave is a significant indication of a custodial detention.” (citations omitted)).

Indeed, our 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. See State v. Locke, 149 N.H. 1, 7 

(2002) (“Given the repeated advice that he was free to leave, we conclude that a 

reasonable person in the defendant’s position would not believe that he was 

restrained to the degree associated with formal arrest.”); State v. Hammond, 

144 N.H. 401, 404 (1999) (finding no custody, based, in part, upon fact that 

officers informed the defendant several times that he was not under arrest and 

that he was free to leave at any time); State v. Johnson, 140 N.H. 573, 578 

(1995) (finding no custody, in part, based upon fact that trooper informed 

defendant he was free to leave). 
8

Here, the question is whether the restraint on the defendant’s movement 

was akin to a formal arrest. Consequently, whether the defendant was told

that he was at liberty to terminate the interrogation provides strong evidence as

to whether a reasonable person in the defendant’s position would feel free to 

leave. Thus, notwithstanding the fact that the defendant was told that he was 

not under arrest, the lack of evidence that he was told he was free to terminate

the interrogation supports a finding of custody at some point during the 

interrogation. 

The State relies upon State v. Turmel, 150 N.H. 377 (2003), arguing as 

follows: In Turmel we found no custody despite concluding that the 

defendant’s movements had been curtailed; in this case, because the 

defendant’s movements were never curtailed, a fortiori, he was not in custody. 

We disagree. 

In Turmel, we distinguished an investigatory traffic stop, during which 

the police may temporarily seize a suspect for a period no longer than is 

necessary to confirm or dispel an officer’s suspicions of criminal conduct, from 

the “restraint on freedom of movement of the degree associated with formal 

arrest” that entitles a suspect to Miranda warnings. Turmel, 150 N.H. at 382-

83. We cited Berkemer v. McCarty, 468 U.S. 420 (1984), and observed that

during an investigatory traffic stop, a suspect may be temporarily in custody 

and not free to leave, yet Miranda warnings are not required. Id. at 383. In 

Berkemer, the Supreme Court explained that temporary custody during an 

investigatory traffic stop does not require Miranda warnings because the 

detention of a motorist is presumptively temporary and brief and is typically

public. Berkemer, 468 U.S. at 437-38. In Turmel, the defendant was “not 

detained for an unduly long period of time” and was “being held within the 

confines of a valid investigatory stop.” Turmel, 150 N.H. at 385. We concluded 

that, at the time that the defendant made the incriminating statement,

“immediately after he got out of his car,” id., the stop had not “‘metamorphosed’

into the functional equivalent of arrest for Miranda purposes.” Id. at 384-85. 

Here, the nature of the defendant’s interrogation was qualitatively 

different from questioning during an investigatory traffic stop; accordingly, the 

cases relating to traffic stops and allowing temporary custody without Miranda

warnings are of limited application. We observe that from the outset of the 

encounter in this case, the circumstances differed significantly from a typical 

traffic stop: the officers told the defendant that they had traveled from 

Newmarket — approximately three hours away by car — to speak to him about 

a “private” matter. Cf. Berkemer, 468 U.S. at 437 (detained motorist’s 

expectation of interview limited in both time and potential penalty). For more 

than one hour the defendant was questioned about events that had occurred

nine to fourteen years earlier. Unlike in Turmel, where “[t]he officers’ purpose 

was to confirm or dispel the suspicion that the defendant possessed 

marijuana,” Turmel, 150 N.H. at 384, here, the officers were, as True 
9

acknowledged, “looking to extract a confession.” Cf. id. at 383 (explaining that 

scope of an investigatory stop “must be carefully tailored to its underlying 

justification — to confirm or to dispel the officer’s particular suspicion”). In 

short, the circumstances in this case are distinguishable from an investigatory 

traffic stop. Accordingly, the restraints that the officers placed on the 

defendant’s movement, at least from the point at which the officers did not 

allow the defendant to enter the woods or leave Rella’s line of sight, are a 

significant factor weighing in favor of an ultimate finding of custody. 

We next turn to the character of the interrogation. See Jennings, 155 

N.H. at 775 (nature of interrogation is important factor in custody 

determination). In our analysis, we consider the presence or absence of both

accusatory questions and accusatory statements made during questioning. 

The accusatory nature of questioning is widely recognized as a factor weighing 

in favor of a finding of police custody. See, e.g., People v. Henry, 980 N.Y.S.2d 

594, 596 (App. Div. 2014) (explaining that a factor in custody determination is 

“whether the questioning was accusatory or investigatory” (quotation omitted)); 

see also White v. United States, 68 A.3d 271, 281 (D.C. 2013) (“Questions that 

are inquisitorial in nature are likely to make an encounter with police more 

coercive.”); State v. Dailey, 273 S.W.3d 94, 103 (Tenn. 2009) (weighing in favor 

of custody that “[t]he character of the questioning was accusatory and 

demanding, aimed at convincing the Defendant that the police already had 

sufficient evidence to convict him of murdering the victim and that he had to 

give them an explanation”). Accusatory questioning often conveys an officer’s 

belief in the defendant’s guilt and the officer’s intent to arrest. See United 

States v. Wauneka, 770 F.2d 1434, 1439 (9th Cir. 1985) (concluding defendant 

was in custody when, inter alia, questioning continued for over an hour and 

turned accusatory); Ross v. State, 45 So. 3d 403, 415-16 (Fla. 2010) (finding 

questioning “highly confrontational and accusatorial,” and weighing in favor of 

custody fact that “[t]he detective repeatedly told Ross that he knew Ross 

committed the crime and the only question remaining was why”).

Consistent with this widely accepted approach, we have repeatedly 

recognized the importance of the absence or presence of accusatory 

questioning in our analysis of custody, contrasting accusatory questioning, 

which weighs in favor of custody, with questioning of a purely general nature,

which supports a determination of no custody. See State v. Steimel, 155 N.H. 

141, 146 (2007) (observing that officer’s confronting defendant with suspicions 

constituted a “relevant factor,” but concluding no custody because 

confrontation “occurred near the end of an otherwise general and casual 

conversation”); cf. State v. Graca, 142 N.H. 670, 671, 675 (1998) (concluding 

no custody, in part, when questioning was of a “purely general nature,” 

concerning defendant’s identity and reason for being in park); State v. Green, 

133 N.H. 249, 258 (1990) (finding no custody, in part because police did not 

accuse defendant of involvement in crimes for which he was later charged); 

State v. Tucker, 131 N.H. 526, 529 (1989) (finding no custody, in part, when 
10

officer questioned defendant in connection with general investigation of 

airplane accident and defendant was not focus of investigation). In State v. 

Dedrick, we upheld the trial court’s determination of custody after it “discerned 

a sea change in the tenor and character of Dedrick’s interview,” which “would 

have signaled [to] a reasonable man in the same circumstances that the 

freedom officers had accorded him earlier was no longer available and that, as 

often as he made denials, they would renew their accusations until, in the end, 

he either confessed or asked, as Dedrick in fact did, to speak with an attorney.” 

Dedrick, 132 N.H. at 225. That “sea change” stemmed from the officers’ 

questioning: Where the defendant had previously been “answering general 

questions about his background and activities,” the shift occurred when he was 

“accused of untruths and confronted with damning information,” and, “despite 

his vehement denials,” the officers insisted that he had committed the crime. 

Id.

Here, as in the latter stages of the Dedrick interrogation, the officers 

employed accusatory questioning. True acknowledged that the purpose of the 

questioning was to “extract a confession.” The officers agreed at the 

suppression hearing that their questions were premised upon the assumption

that the defendant had committed the crime. On numerous occasions

throughout the interrogation the officers asked the defendant why he had 

sexually abused K.L. and posited reasons for his actions. They asked the 

defendant if he had a sexual relationship with or molested another child at 

daycare. Moreover, we find significant that both officers agreed that, during an 

encounter lasting more than one hour, “the subject matter stayed the same,” 

and “there really wasn’t any other conversation, other than regarding [K.L.].” 

Thus, the accusatory nature of the questioning of the defendant is a significant 

factor weighing in favor of a finding of custody. 

Likewise, accusatory statements made by the officers and directed at the 

defendant also weigh in favor of custody. See Jennings, 155 N.H. at 774

(weighing in favor of custody that officers repeatedly confronted defendant with 

their belief that victim was telling truth); Dedrick, 132 N.H. at 225 (weighing in 

favor of custody that defendant was accused of untruths and confronted with 

damning information). Although “Miranda warnings are not required simply 

because the person being questioned is one whom the police suspect,” Tucker, 

131 N.H. at 529 (quotations omitted), the officers’ subjective beliefs as to the 

defendant’s guilt “may become relevant when they are communicated to the 

defendant and affect an objective determination of whether the defendant 

would feel free to leave.” State v. Muntean, 12 A.3d 518, 528 (Vt. 2010). Thus,

confronting the defendant with evidence of guilt weighs in favor of custody: “A

reasonable person would not feel at liberty to terminate a police interview after 

being confronted with such evidence, as 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. (quotation omitted); 

see also Ross, 45 So. 3d at 416-17 (factor that weighed in favor of finding of 
11

custody was that defendant was confronted with strong evidence of his guilt); 

Aguilera-Tovar v. State, 57 A.3d 1084, 1092 (Md. Ct. Spec. App. 2012) (“When 

a suspect is made aware of the fact . . . that he is a suspect in a case and is not 

merely being questioned as a witness, that . . . weighs in favor of a finding of 

custody.”); Com. v. Groome, 755 N.E.2d 1224, 1234 (Mass. 2001) (a factor in 

custody analysis is whether officers have conveyed to person being questioned 

any belief or opinion that that person is a suspect).

In Jennings, the police officers repeatedly confronted the defendant with 

his daughter’s allegations of sexual assault, telling him that they were certain 

that the allegations were true. Jennings, 155 N.H. at 774. In concluding that 

the defendant was in custody, we explained that the control that the police 

exercised, when combined with the “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.” Id. 

Here, as in Jennings, the defendant was confronted almost immediately 

— and throughout the interrogation — with the officers’ express statements 

that they believed him to be guilty of sexual assault. See Dedrick, 132 N.H. at 

225 (finding custody when, despite defendant’s vehement denials, officers 

stated time and again that it was defendant who committed the crime). For 

example, True testified that he began the interrogation by stating, “You know 

we’re here to discuss you molesting [K.L.],” after which Laurent showed the 

defendant a picture of K.L. and said, “Yeah, this is the girl we’re here to discuss

you molesting.” The officers acknowledged that they had told the defendant

“repeatedly, that [they] believed, [that he] had committed aggravated, felonious 

sexual assault against a child,” that they “knew everything . . . about his 

relationship with [K.L.],” that they knew that he did it and that they believed 

that it happened. Both officers told the defendant that they did not believe

him, and Laurent testified that they admonished the defendant an estimated 

fifteen times to “tell the truth.” The officers’ repeated statements to the 

defendant that they believed that he was guilty weigh in favor of custody. 

Our conclusion that the accusatory questioning and statements weigh in 

favor of custody is not inconsistent with the trial court’s findings that “the 

character of the encounter was not fueled by hostility or animus,” and that the 

officers were polite and did not raise their voices. See, e.g., Dailey, 273 S.W.3d 

at 103 (concluding defendant was in custody and that questioning was 

accusatory although the officers’ “tone of voice and general demeanor were 

conversational”). Neither the absence of hostility on the part of the officers, 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. In sum, we find that the accusatory questioning and 

accusatory statements employed by the interrogating police officers each
12

independently weigh in favor of a finding of custody, and further, that 

concurrently they strongly support such a finding. 

Also relevant to our assessment of the character of the interrogation is 

the fact that the police initiated the contact with the defendant. When 

“confrontation between the suspect and the criminal justice system is 

instigated at the direction of law enforcement authorities, rather than the

suspect, custody is more likely to exist.” Griffin, 922 F.2d at 1351; see State v. 

Hieu Tran, 71 A.3d 1201, 1207 (Vt. 2012); cf. Hammond, 144 N.H. at 404

(finding relevant to no custody determination that defendant drove himself to 

police station and at end of questioning was allowed to go home); State v. 

Carroll, 138 N.H. 687, 696-97 (1994) (explaining relevant to no custody finding 

that defendant requested interview, drove himself to the interview, and on prior 

day had requested and received permission to leave). Here, not only did the 

police initiate the contact, but the defendant was aware that the officers 

traveled from Newmarket to confront him, and they were accompanied by a 

State Trooper. We find that this factor also weighs in favor of a finding of

custody.

We do not mean to suggest that all of the circumstances surrounding the 

interrogation decisively weigh in favor of a finding of custody; in fact, this is a 

close case. Some factors, standing alone, weigh against a finding of custody, or 

are at most neutral considerations. For example, as we discussed earlier, the 

fact that the defendant was told that he was not under arrest supports a 

finding of no custody. In regard to the number of officers involved, we agree 

with the State that, in isolation, the involvement of only two officers in the 

interrogation would weigh against custody. However, Rella’s presence in his 

marked cruiser during the interrogation contributed to a police-controlled 

atmosphere, and largely neutralizes this factor.

We recognize that a defendant’s familiarity with his surroundings, taken 

in isolation, often weighs against a finding of custody. See Hughes, 640 F.3d at 

435-36. However, as we observed in Jennings, “[t]he 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.” Jennings, 155 N.H. at 772 (quotation 

omitted). We note that other courts have found an interrogation custodial

notwithstanding the fact that the defendant was questioned in familiar 

surroundings. See, e.g., Mittel-Carey, 493 F.3d at 40 (“While an interrogation 

in a defendant’s residence, without more, certainly weighs against a finding of 

custody, . . . the level of physical control the agents exercised over [the 

defendant] in this case weighs heavily in the opposite direction, despite the fact 

that the control was exercised inside defendant’s home.” (citation omitted)); 

Sprosty v. Buchler, 79 F.3d 635, 641 (7th Cir. 1996) (“More important than the 

familiarity of the surroundings where [the defendant] was being held is the 

degree to which the police dominated the scene.”). On balance, here this factor 

weighs slightly against a finding of custody.
13

Finally, we conclude that the length of the interrogation in this case, 

approximately one hour and fifteen minutes, weighs neither in favor of, nor 

against, a finding of custody. See, e.g., Mittel-Carey, 493 F.3d at 40 (length of 

interrogation of ninety minutes to two hours supported finding of custody);

Jennings, 155 N.H. at 774 (“nearly two hours” of questioning supported 

conclusion of custody); State v. Goupil, 154 N.H. 208, 226 (2006) (finding no 

custody when interview lasted less than fifteen minutes); Locke, 149 N.H. at 6 

(three and a half hours not excessive and no custody); State v. Dorval, 144 N.H. 

455, 456-57 (1999) (interview of three hours “relatively short” and no custody); 

Johnson, 140 N.H. at 578 (finding no custody, in part, when questioning lasted 

approximately ten minutes).

The determination as to whether the defendant is in custody for 

purposes of Miranda requires us to analyze the totality of the circumstances, 

and not to rely on any single factor in isolation. See Jennings, 155 N.H. at 

772. “Custody should not be a mystical concept to any law enforcement 

agency. We see no reason why doubts as to the presence or absence of custody 

should not be resolved in favor of providing criminal suspects with the simple 

expedient of Miranda warnings.” Griffin, 922 F.2d at 1356. “Effective law 

enforcement is not frustrated when police inform suspects of their rights.” Id. 

“Such practices protect the integrity of the criminal justice system by assuring 

that convictions obtained by means of confessions do not violate fundamental 

constitutional principles.” Id.

After considering the “totality of the circumstances of the encounter,”

Jennings, 155 N.H. at 772 (quotation omitted), and balancing all of the relevant 

factors, we hold that the defendant was in custody for the purposes of Miranda

no later than when the officers prevented him from entering the woods. We 

conclude that, at least by that point, a reasonable person in the defendant’s 

position would have understood he was effectively under arrest. The officers

had accompanied the defendant wherever he went on his property, and, when 

the defendant tried to enter the woods, True instructed him not to do so.

Further, the officers did not allow the defendant to leave the sight of the State 

Trooper who was monitoring the interrogation from a marked cruiser. 

Although the defendant was informed that he was not under arrest, there is no 

evidence that the officers ever informed the defendant that he was free to 

terminate the interrogation. In addition, we accord substantial weight to the 

fact that the officers’ questions were accusatory and focused on the defendant’s 

alleged criminal activity. For more than an hour, through their use of 

accusatory statements and questions, the officers repeatedly conveyed their 

belief in the defendant’s guilt. Accordingly, pursuant to Part I, Article 15 of the 

New Hampshire Constitution, any incriminating statements made by the 

defendant after True’s instruction not to enter the woods must be suppressed. 

At the same time, based on the record before us, we conclude that the 

defendant was not yet in custody for the purposes of Miranda at the beginning 
14

of the encounter. Accordingly, the defendant’s initial responses to the officers

that he “did not remember that,” and that K.L. was a “cute girl,” need not be 

suppressed. 

As to the interrogation that occurred between the defendant’s initial 

responses and True’s instruction to him not to enter the woods, the record is 

unclear regarding the sequence of events — specifically, the interrelationship 

between the actions and questioning of the police and the statements made by 

the defendant. Thus, we are unable to determine as a matter of law that the 

interrogation was noncustodial prior to True’s instructions. Accordingly, we 

remand for the trial court to make specific findings and rulings regarding the 

admissibility of any incriminating statements made by the defendant after his 

initial responses, and before True’s instruction not to enter the woods. 

“Because the defendant prevails under the State Constitution, we need 

not address his claim under the Federal Constitution.” Jennings, 155 N.H. at 

776. 

Reversed and remanded.

HICKS and CONBOY, JJ., concurred; LYNN, J., with whom DALIANIS, 

C.J., joined, dissented.

LYNN, J., dissenting. Contrary to the majority, I do not regard this as “a 

close case.” In my view, based on the facts and the law, the defendant clearly 

was not in custody at any time until the officers placed him under arrest at the 

end of the interview. As the discussion below demonstrates, the majority does 

not cite, nor has my research revealed, any case in which an appellate court 

has overturned a trial court finding that an interrogation was not custodial in 

factual circumstances that are in any way reasonably analogous to those 

presented here.

Under well-settled law, although we review de novo a trial court’s 

ultimate legal conclusion as to whether a defendant was in custody when 

interrogated, we are required to accept the court’s underlying factual findings 

unless they are unsupported by the record or clearly erroneous. See, e.g., 

State v. Jennings, 155 N.H. 768, 772-73 (2007); State v. Ford, 144 N.H. 57, 62-

63 (1999). This deferential standard with respect to underlying fact-finding 

applies not only to the trial court’s resolution of credibility issues, but also to 

inferences drawn from the circumstantial evidence. As the First Circuit 

explained in United States v. Hughes, 640 F.3d 428, 434 (1st Cir. 2011), “when 

the [trial court] chooses to draw a reasonable (though not inevitable) inference 

from a particular combination of facts, that inference is entitled to respect.” Id. 

(quotation omitted). Here the majority departs from this rule by subtly 

recasting the underlying facts in a manner that deviates from the trial court’s 

findings or from inferences that are supported by the record and that we must 

assume the trial court drew because they support the court’s decision. See In 
15

the Matter of Aube & Aube, 158 N.H. 459, 466 (2009) (“We must assume that 

the trial court made subsidiary findings necessary to support its general 

ruling.” (quotation omitted)). In short, in the guise of conducting de novo

review of the trial court’s ultimate legal conclusion that the defendant was not 

in custody, the majority effectively substitutes its judgment for that of the trial 

court as to the underlying facts. Because, under the deferential standard of 

review applicable to the trial court’s actual fact-finding, the majority’s legal 

conclusion that the defendant was in custody when interrogated deviates from 

our prior precedents and is unsupported by any authority, I respectfully 

dissent.

I

Based upon the evidence presented at the pretrial suppression hearing, 

the trial court found the pertinent facts to be as follows. In October 2010, K.L. 

reported to the Newmarket Police Department that she had been sexually 

abused by the defendant approximately nine to fourteen years earlier. At the 

time of the alleged abuse, the defendant was dating the woman who ran the 

Newmarket daycare center where the abuse occurred. At the time the abuse 

was reported, the defendant resided in Errol at the Bullmoose campground and 

restaurant, which he also owned and operated. 

Lieutenant Kyle True and Sergeant Tara Laurent began investigating the 

allegations against the defendant and, based upon their investigation, obtained 

a warrant for his arrest. On October 22, 2010, True and Laurent met New 

Hampshire State Trooper Rella in Colebrook and followed him to the Bullmoose 

to interview the defendant. Rella drove his fully-marked State Police cruiser, 

while True and Laurent drove in an unmarked police vehicle. Upon arriving at 

the Bullmoose, the officers drove up a long driveway that opened into a large, 

one-acre clearing where the parking lot and restaurant were located. The 

clearing was surrounded by trees. The officers parked their cars in the lot, and 

Rella, dressed in his full State Police uniform, which included his visible 

sidearm, entered the restaurant and spoke to the defendant’s girlfriend, who 

directed Rella to another building where the defendant was working. The 

defendant and Rella walked to the parking lot, where True and Laurent were 

waiting. True and Laurent each wore a dark jacket with the Newmarket Police 

badge and their names embroidered on the front, but were otherwise not in 

uniform and bore no other visible police insignias. Both officers were armed, 

but their weapons were covered by their jackets and were not visible. Rella 

introduced the defendant to the two Newmarket officers and they all shook 

hands.

True asked the defendant if he and Laurent could speak to him without 

his girlfriend (who had approached the officers) or Rella present, as they 

wanted to discuss a private matter. True suggested that he, Laurent, and the 

defendant sit in the Newmarket officers’ vehicle, as it was around thirty-five 
16

degrees outside and he and Laurent were not dressed for the outdoors. The 

defendant, who was dressed for the weather, instead asked whether the three 

could walk and talk. The officers agreed, and Rella returned to his cruiser, 

where he remained for the duration of the interview.

The officers followed the defendant’s lead as he began walking around 

the large open area surrounding the restaurant. As the three began walking, 

the officers said they wanted to talk to the defendant about his having molested 

K.L. Laurent told the defendant that he was not under arrest — and repeated 

this statement two or three times throughout the interview — and that the 

officers just wanted to get his side of the story. When he was first told why the 

officers wanted to speak with him, the defendant responded by saying he “did 

not remember that.” When shown a picture of K.L., however, the defendant 

smiled, stating that he remembered her and that she was a cute girl. At this 

point Laurent noticed that the defendant looked very nervous and was shaking, 

and she asked him whether he was cold. The defendant responded that he was 

not cold, as he had just been working, and the interview continued. 

The officers next asked the defendant multiple background questions: 

they confirmed that he lived in Newmarket at the time the alleged molestation 

occurred, and that he dated the woman who ran the daycare that K.L. attended 

during that time period. When the officers asked the defendant if he had 

molested other children in Newmarket, the defendant was adamant that he had 

not. At this point in the questioning the defendant’s breathing became 

shallow, he continued to shake, and he was chain smoking. 

During the conversation, the defendant, accompanied by the officers, 

walked to different parts of the open field. At one point the defendant began to 

walk into the woods. In response, True said, “Hold it Tim, we’re not walking 

out there. I don’t want to leave the sight of the trooper.” At the suppression 

hearing, True testified that he did not want to go into the woods because 

neither he nor Laurent was dressed to walk in the woods, the officers did not 

know the area, and they did not have any radio communications. The 

defendant made no verbal response to True’s statement, but simply began 

walking in another direction. At another point during the conversation, the 

defendant ran out of cigarettes. He walked over to his pickup truck, with the 

officers following, and retrieved more cigarettes. Afterward, the defendant sat 

in the driver’s seat of his truck, with his feet hanging out, and the officers stood 

outside the vehicle, where the three continued the conversation.

The entire conversation with the defendant lasted approximately one 

hour and fifteen minutes. During this time, the officers and the defendant 

walked over different parts of the field, covering most of the open ground. 

Throughout the interview, the defendant and the officers spoke back and forth 

in a conversational tone, and the defendant often took long pauses to think 

between answers. Although the defendant never unequivocally denied 
17

molesting K.L., at times he claimed not to remember certain events. The 

defendant often responded to the officers’ questions with questions of his own 

about the investigation. He asked the officers about the people to whom the 

police had talked, in what room the abuse was alleged to have occurred, and 

what evidence the police had. He said that the officers probably had DNA. 

Sometimes, the officers answered the defendant’s questions, and sometimes 

they declined, telling him that they could not disclose the details of the 

investigation.

Although the officers told the defendant several times that they did not 

believe his claims that he could not remember certain things and thought he 

was not telling the truth, at no point did the officers raise their voices, nor were 

they confrontational or hostile toward the defendant.

At one point, Laurent asked the defendant if he had an emotional 

relationship with K.L. The defendant denied this. True then said, “You just 

wanted to come.” The defendant nodded his head and responded, “Yes, that 

was probably it.” True then asked if the defendant had oral sex with K.L., to 

which the defendant responded, “Yes.” The defendant also admitted that he 

had digitally penetrated K.L. and had vaginal intercourse with her. At this 

point, the officers told the defendant that it was good to be honest and that 

they just wanted to hear his version of events. The defendant did not offer any 

more details, but said that he regretted his relationship with K.L. After the 

defendant made these admissions, the officers allowed him to go into the 

restaurant to speak with his girlfriend and get a soda. Although the officers 

accompanied the defendant into the restaurant, they did not place him under 

arrest until after they had left the restaurant. The arrest took place out of 

sight of the restaurant so as not to embarrass the defendant in front of the 

patrons inside the restaurant. 

II

“Custody entitling a person to Miranda protections during interrogation 

requires formal arrest or restraint on freedom of movement to the degree 

associated with formal arrest.” State v. Steimel, 155 N.H. 141, 144 (2007). 

The defendant does not contend that he had been formally arrested at the time 

he was questioned by the officers. That being the case, the trial court was 

required to determine “whether [the defendant’s] freedom of movement was 

sufficiently curtailed [to constitute the equivalent of arrest] by considering how 

a reasonable person in [his] position would have understood the situation.” Id. 

Among the factors which are relevant to this determination are the suspect’s 

familiarity with the surroundings where the interrogation occurs, the number 

of officers present, the degree to which the suspect was physically restrained, 

and the interview’s duration and character. Id. 
18

The trial court determined that the defendant was not in custody and 

explained its reasoning as follows:

The defendant was familiar with his surroundings, there were only two 

officers present, and the defendant was not physically restrained. While 

the encounter lasted between an hour and an hour and a half, it is clear 

to the Court that the character of the encounter was not fueled by 

hostility or animus. Rather, the officers allowed the defendant to wander 

the field, take time to ponder in silence, and to get cigarettes and sit in 

his truck. . . . [T]his type of freedom afforded the defendant during the 

interview bears none of the hallmarks of a formal arrest. 

In my view, the trial court’s decision was unquestionably correct. In 

reaching a contrary conclusion, the majority relies upon four factors: (1) the 

alleged “restraints” placed upon the defendant during the questioning; (2) the 

fact that the interview was initiated by the police, rather than by the defendant; 

(3) the fact that, although the defendant was told several times that he was not 

under arrest, he was not also advised that he was free to terminate the 

interrogation; and (4) the accusatory nature of the questioning. With respect to 

the first factor, the majority’s determination that the defendant was restrained 

during questioning is the most obvious example of its substitution of its 

version of the facts for the contrary factual findings of the trial court. As to the 

other factors, although there is no doubt that each of them can, in some

circumstances, weigh in favor of a finding of custody, in this case these factors 

are far outweighed by other factors demonstrating that the defendant was not 

in custody when he was questioned. 

A

The majority asserts that “the officers . . . intervened to prevent the 

defendant from freely moving about his property”; that True agreed that, from 

the moment he encountered the defendant, True knew that he was not going to 

allow the defendant to leave his sight; and that although True never conveyed 

his intent to the defendant, “his actions — following the defendant everywhere 

he walked, including when he went to his truck to get more cigarettes — would 

have conveyed to a reasonable person the reality that the officers did not intend

to allow the defendant to leave their sight.” But this is not a fair description of 

the nature of the officers’ interaction with the defendant. First, when asked if 

the officers were not going to let the defendant leave their sight, True answered, 

“I knew that, yes.” (Emphasis added.) The clear import of this answer is that 

this was what the officers intended. However, as the trial court found, there is 

no evidence that they ever communicated this intent to the defendant — the 

only fact that matters for custody purposes. See Stansbury v. California, 511 

U.S. 318, 323-24 (1994). Furthermore, although the majority emphasizes the 

point more than once, it also is irrelevant that the officers intended to obtain a 
19

confession from the defendant, because this fact too was never communicated 

to him.

More fundamentally, the majority’s description completely ignores the 

trial court’s finding — again, amply supported by the record — that the 

defendant “willingly and voluntarily spoke to” the officers; as well as the crucial 

facts that it was the defendant who proposed that he and the officers talk while 

walking around his property and that he determined where on the property 

they would go. Given these facts, rather than the “following the defendant 

everywhere” characterization used by the majority, a more accurate description 

of what actually occurred is that the defendant led the officers around his 

property. The same “spin” can be found in the majority’s description of the 

defendant going to his truck to get cigarettes. Although the officers did 

accompany him to his truck, there is nothing in the record to suggest that in 

retrieving his cigarettes the defendant was intent upon trying to separate 

himself from the officers or take a break from the interview.1 Again, from all 

that appears in the record, the defendant led the officers to his truck while 

continuing his conversation with them, and indeed, that is what the trial court 

found.

2 Given the defendant’s suggestion, and the officers’ agreement, that the 

interview be conducted while the trio walked around the defendant’s property, 

it is hard to imagine how else their discussion would have occurred other than 

by the officers accompanying the defendant.

Here, the interview was conducted in surroundings familiar to the 

defendant: his own home and business. “[S]uch a location generally presents 

a less intimidating atmosphere than, say, a police station.” Hughes, 640 F.3d 

at 436; see also United States v. Knowles, 2 F. Supp. 2d 1135, 1144 (E.D. Wis. 

1998) (stating that a Customs Office “does not contain the trappings commonly 

associated with a law enforcement agency, such as uniformed officers milling 

about or suspects contained in holding cells,” supporting the contention that a 

reasonable person would have felt free to leave); cf. Yarborough v. Alvarado, 

541 U.S. 652, 665 (2004) (identifying questioning at a police station as a factor 

that weighs towards finding custody). Further, the defendant was never 

 

1 The situation might be different if, for example, there was evidence that in seeking to retrieve his 

cigarettes, the defendant said to the officers something like, “I’m going to get a cigarette, I’ll be 

back in a second.” If, despite a statement like this, the officers nonetheless accompanied the 

defendant while he gathered his cigarettes, such actions arguably would suggest to a reasonable 

person that he was not free to disentangle himself from the police, even for a moment. See United 

States v. Cavazos, 668 F.3d 190, 194 (5th Cir. 2012) (noting that the defendant was monitored 

when he used the telephone and restroom); Jennings, 155 N.H. at 770, 773 (noting that when 

police told the defendant to “knock on the interview room’s door if he needed anything[,] . . . . [t]he 

implication . . . was that [he] could not leave the room, much less the station”). But see Hughes, 

640 F.3d at 436 (finding no custody where agents accompanied the defendant outside when he 

went for a cigarette during a break in questioning).

2 There is no evidence, for example, that the officers tried to search the defendant’s vehicle for 

weapons prior to his entering it to get cigarettes. Cf. Jennings, 155 N.H. at 773 (officers 

conducted pat-down search of defendant before transporting him to police station).
20

enclosed in a small area inside or outside of a building — the interview took 

place in a large open field, approximately an acre in size. See Hughes, 640 

F.3d at 436 (finding no custody, in part, where nothing in the record showed

that the officers either “exploited . . . [the] cozy confines [of the defendant’s 

home] or invaded the defendant’s personal space”); cf. State v. Dedrick, 132 

N.H. 218, 221, 225 (1989) (finding custody, in part, based upon the nature of 

the interview room, which measured eight feet by eight feet, was windowless, 

and was lit by a single lamp). That the defendant was very familiar with his 

surroundings supports the trial court’s finding that the interrogation was noncustodial.

Although three officers went to the Bullmoose on October 22, only two 

actually conducted the interview, while the third remained apart in his vehicle. 

See Hughes, 640 F.3d at 436 (stating that the presence of four officers was 

“impressive but not overwhelming,” particularly where only two officers 

questioned the defendant while the others remained apart); see also State v. 

Turmel, 150 N.H. 377, 379, 385 (2003) (finding no custody where, despite the 

presence of three police cruisers and an unmarked police truck, only two 

officers interviewed the defendant); State v. Locke, 149 N.H. 1, 6 (2002) (finding 

no custody where the defendant was questioned by two officers). Because the 

number of officers who questioned the defendant was not so numerous as to be 

inherently intimidating, this factor also supports the trial court’s finding of no 

custody. 

At no point during the interview did the officers physically restrain the 

defendant or otherwise engage in a show of force. The interviewing officers —

True and Laurent — were dressed in plain clothes, not police uniforms. 

Although they were armed, their weapons were covered by their jackets and not 

visible to the defendant, and at no point did they display or brandish their 

weapons. See Hughes, 640 F.3d at 436 (finding no custody when, among other 

factors, the officers did not brandish their weapons, even though they were 

visible to the defendant); State v. Hammond, 144 N.H. 401, 404 (1999) (finding 

no custody when, among other factors, the two officers questioning the 

defendant were not wearing their uniforms and their weapons were not visible 

to the defendant); Turmel, 150 N.H. at 385 (finding no custody where officers 

did not display their weapons to the defendant).3

 

3 The majority asserts that Turmel and other cases involving traffic stops are “of limited 

application” to the analysis of this case. To the contrary, the significance of Turmel and its 

progeny is that these cases demonstrate that, even when a person is unquestionably not free to 

leave (because he has been “seized” during a traffic stop), such level of restriction of freedom is 

not, without more, enough to require the administration of Miranda warnings before 

questioning. The seminal question posed by Turmel for the custody question at issue here is 

this: How likely is it that a motorist, “seized” during a traffic stop, would feel free to roam 

around his vehicle (or the area where the stop occurs) while being questioned? The answer is 

obvious; yet legions of cases hold that the mere seizure resulting from a traffic stop does not 

require administration of Miranda warnings before questioning. Given that the defendant in 
21

The majority seizes upon one isolated incident — True’s response to the 

defendant’s mid-interview attempt to walk into the woods — as establishing the 

point, at the latest, by which the defendant was in custody. But, unlike the 

“sea change in the tenor and character of [the] interview” that the trial court in 

Dedrick found occurred after the officers reentered the interrogation room, see

Dedrick, 132 N.H. at 225, here there is no evidence that this incident had any 

effect whatsoever on the tenor or character of the interactions between the 

officers and the defendant. Although this incident was an occasion when the 

officers apparently directed the defendant where not to go,4 such a direction is 

wholly inadequate to demonstrate custody when considered in light of the 

totality of circumstances. The First Circuit’s decision in Hughes is instructive. 

There, during an interrogation of the defendant at his home, two troopers 

accompanied him as he went outside to smoke a cigarette during a break in the 

questioning. Hughes, 640 F.3d at 436. The court found that “[w]hile escorting 

a suspect throughout his home may have some bearing on the custody inquiry, 

there is no evidence that the troopers followed the defendant so closely as to 

intrude upon any intimate moment or private activity.” Id. (citation omitted). 

Thus, “their foray into the yard, viewed objectively, did not approach the level 

of physical restraint associated with formal arrest.” Id. 

The same is true here. When the defendant started to walk into the 

woods, True said, “Hold it Tim, we’re not walking out there. I don’t want to 

leave the sight of the trooper.” Neither True nor Laurent made physical contact 

with the defendant at this point, nor is there evidence that they blocked his 

path into the woods or otherwise physically redirected his movements in any 

way. Cf. United States v. Mahmood, 415 F. Supp. 2d 13, 16 (D. Mass. 2006) 

(when, during interview at defendant’s home, telephone rang, agents did not 

suggest a break or give any indication it was permissible for defendant to 

answer, and when defendant turned to approach phone, agent placed herself in 

front of it); Jennings, 155 N.H. at 770 (after requesting defendant to 

“voluntarily” come to police station, officers rejected defendant’s request to 

travel in his own truck, took keys to the truck, and conducted pat-down search 

of defendant before he entered police cruiser). In the language of Hughes, the 

officers did not “intrude upon any intimate moment or private activity,” as the 

defendant at the time was merely endeavoring to steer the collective movement 

 

this case faced nothing remotely resembling the level of restriction on freedom of movement 

typically imposed on a motorist subject to a traffic stop, the Turmel line of cases strongly 

supports the conclusion that he was not “in custody” for Miranda purposes.

4 Although the trial court interpreted Lieutenant True’s statement as a direction to the defendant 

that he could not enter the woods or leave the sight of Trooper Rella, the statement is susceptible 

of a different interpretation. Taken in context, a plausible alternative interpretation is that when 

True said, “we’re not walking out there” and “I don’t want to leave the sight of the trooper,” he was 

referencing only what he (or he and Laurent) intended to do, not what the defendant was 

compelled to do. Nonetheless, in contrast to the majority’s methodology, because the trial court 

adopted the former interpretation, I accept it for purposes of my analysis. 
22

of the trio into the woods. Hughes, 640 F.3d at 436; cf. United States v. 

Madoch, 149 F.3d 596, 601 (7th Cir. 1998) (finding that presence of agent 

while suspect pumped breast milk in bathroom was sufficient to establish that 

she was in custody).5 

Viewed objectively, True’s response to the defendant’s foray toward the 

woods did not approach the level of physical restraint associated with formal 

arrest. The test for custody is not whether the defendant had absolute freedom

to move about as he wished — if that were the test, then police questioning of a 

motorist during a traffic stop would be unlawful in the absence of Miranda

warnings, since the motorist obviously is not free to move about as he wishes. 

Rather, the test is whether a reasonable person in the defendant’s position 

would have understood himself to be functionally under arrest. See Steimel, 

155 N.H. at 144. Not only would a reasonable person not have believed that he 

was functionally under arrest at that point, but the defendant’s own actions 

clearly illustrate that he did not regard himself as being under arrest or subject 

to equivalent restraint. The defendant’s response to True’s statement was 

simply to walk in another direction, without comment; he did not stop, ask the 

officers where he should go, or have any other reaction. His conduct 

demonstrates that the defendant believed he retained control over where the 

trio walked during the interview, and is wholly inconsistent with the thesis that 

he regarded himself as being in custody. Nor does the presence of Rella, who 

merely remained seated in his cruiser some distance away, change the 

objective reality of this situation. A reasonable person in the defendant’s 

position, I submit, would think it quite odd that a police officer sitting quietly 

in a car at varying distances from his location (depending upon where the 

defendant was at the moment) was exercising dominion and control over him 

equivalent to that of a person who had been placed under arrest. 

To demonstrate the extent to which the majority’s “restraint” analysis 

deviates from the mainstream of settled law, it is useful to compare the facts of 

this case with those of cases upon which the majority relies to support its 

conclusion that this factor supports its finding of custody. The majority cites 

United States v. Mittel-Carey, 493 F.3d 36 (1st Cir. 2007), in support of its 

decision, but in fact the circumstances in Mittel-Carey bear little similarity to 

those here. In Mittel-Carey, eight FBI agents arrived at the defendant’s house 

 

5 The majority acknowledges that police safety concerns can be a valid reason, unrelated to 

custody, for escorting or placing restrictions on the movement of a person being questioned, but 

asserts that True’s testimony that such concerns were part of what led him to direct the defendant 

away from walking into the woods need not be considered because the defendant was not 

informed that this was the reason for the restriction. Although the defendant may not have been 

explicitly informed of the reason for not going into the woods, True’s statement, “I don’t want to 

leave the sight of the trooper” (emphasis added), combined with the defendant’s knowledge that 

the officers hailed from afar and were unfamiliar with the area, certainly would have 

communicated to a reasonable person in his position that the officers were concerned for their 

safety. 
23

at 6:25 a.m. to execute a search warrant for evidence that the defendant 

possessed and transported child pornography. Two agents entered the 

defendant’s dark bedroom, where he was asleep; one held a flashlight and an 

unholstered gun. Mittel-Carey, 493 F.3d at 38. By contrast, in the instant 

case, two plain-clothed police officers and one State Trooper arrived at the 

defendant’s place of business during work hours. Although the officers were 

armed, their weapons were not visible. 

In Mittel-Carey, the agents ordered the defendant to dress and escorted 

him downstairs from his bedroom. Id. By contrast, in this case, the officers 

asked to speak with the defendant in private and then suggested that they sit 

in the officers’ vehicle. Instead, the defendant requested that they walk and 

talk. The officers then followed the defendant’s lead as he began walking 

around a large open area surrounding the restaurant. When the defendant ran 

out of cigarettes, he led the officers to his truck where he retrieved more 

cigarettes and then sat on the driver’s seat. 

In Mittel-Carey, the defendant was told, during the interrogation, that 

“based on what the agents anticipated finding on his computer and what he 

had already done he was looking at a lot of jail time.” Id. (quotation and 

brackets omitted). By contrast, in the instant case, although the officers told 

the defendant that they were there to talk with him about molesting the victim, 

they never communicated to him that they had a warrant for his arrest or

threatened him with jail time. Indeed, throughout their interaction, the officers 

and the defendant spoke back and forth in a conversational tone. The 

defendant often responded to the officers’ questions with questions of his own 

about the investigation — a circumstance which demonstrates that, far from 

being cowed by the officers’ presence, he had the presence of mind to attempt 

to determine how much they already knew. Sometimes the officers answered 

his questions and sometimes they told him that they could not disclose details 

about their investigation. At no point did the officers raise their voices or 

otherwise act in a manner that was hostile or confrontational. The defendant 

was quiet and often took long pauses to think between answers, and the 

officers responded in kind by allowing him to do so and by speaking in polite 

tones.

In Mittel-Carey, the defendant received permission from the agents on 

three occasions to move from his seated position in the living room. Id. On 

one occasion, he requested to use the bathroom and was allowed to do so, but 

was required to leave the door partially open so that an agent could monitor 

him. Id. at 39. In this case, there is no evidence that the defendant ever felt 

the need to ask the officers for permission before walking to different parts of 

the open field or before, at one point, going to his truck, retrieving cigarettes, 

and then sitting down. The only time the officers told the defendant that he 

could not walk where he pleased was when he began to walk into the woods. 
24

At that point, an officer merely told the defendant that “we’re not walking out 

there” because the officer did not “want to leave the sight of the trooper.” 

The majority also likens this case to United States v. Colonna, 511 F.3d 

431 (4th Cir. 2007). However, in that case, twenty-four FBI agents and a 

computer forensic technician arrived at the defendant’s home at 6:29 a.m. to 

execute a search warrant for child pornography. Colonna, 511 F.3d at 433. 

After the defendant’s parents and sister allowed the agents into the home, two 

agents went to his bedroom, kicked open the bedroom door, and, at gunpoint, 

ordered him to dress and come downstairs. Id. According to the defendant, as 

he attempted to dress, one agent “slammed him into a door jam causing 

injuries to his spine.” Id. Although the defendant was told that he was not 

under arrest, he was told twice that lying to a federal agent was a felony. Id. 

In contrast, nothing remotely approaching this kind of aggressive law 

enforcement behavior occurred in this case. 

In sum, the record before us amply supports the trial court’s finding that 

“the defendant was the one who decided where the interview occur[red] and he 

was the one who led the officers to different locations on his property.” It is 

fiction to suggest, as the majority does, that this explicit finding can be squared 

with its conclusion that the defendant was subjected to restraint of a degree 

amounting to the functional equivalent of arrest.

B

The majority next relies upon the fact that the interrogation here was 

initiated by the police, rather than by the defendant himself. Although I agree 

that this is a factor that weighs in favor of a finding of custody, its significance, 

under the totality of the circumstances, is minimal. Apparently recognizing as 

much, the majority attempts to “beef up” this factor by observing that “the 

defendant was aware that the officers traveled from Newmarket [some three 

hours away] to confront him.” Exactly how the majority believes the officers’ 

place of origin or travel time contributes to the custody analysis is unexplained. 

At best, these considerations might lead a reasonable person to conclude that 

the officers considered the subject matter of their desired interview with the 

defendant to be of sufficient importance to justify the trip. I am aware of no 

authority, however, that suggests the importance which officers attach to a 

conversation is indicative of custody. In any event, whatever pro-custody value 

the initiation-of-the-contact factor may have is completely offset by the absence 

of any evidence of heavy-handed tactics on the part of the officers in securing 

the defendant’s agreement to be interviewed and by the trial court’s explicit 

finding — which the majority does not dispute – that the defendant “willingly 

and voluntarily spoke to Lieutenant True and Sergeant Laurent.”
25

C

The majority also places great weight upon the fact that, although the 

officers told the defendant on two or three occasions that he was not under 

arrest, they did not also inform him that he was free to terminate the 

interrogation.6 However, while informing a suspect that he is not under arrest 

may be “less determinative in favor of non-custody,” United States v. Sanchez, 

676 F.3d 627, 631 (8th Cir. 2012), than informing him that he is free to leave, 

it is, nonetheless, a factor that weighs in favor of — not against — a finding 

that the defendant was not in custody, id. (citing United States v. Ollie, 442 

F.3d 1135, 1138 (8th Cir. 2006), for the premise that, “where interviewer’s 

statement to suspect that she was not under arrest weighed against custody 

finding, it was less determinative than a statement informing suspect that 

answers were voluntary and she was free to leave” (emphasis added)). “[A] 

statement by a law enforcement officer to a suspect that he is not under arrest 

is an important part of the analysis of whether the suspect was in custody.”7 

United States v. Swanson, 341 F.3d 524, 530 (6th Cir. 2003) (citation omitted); 

see also Davis v. Allsbrooks, 778 F.2d 168, 171 (4th Cir. 1985) (informing a 

suspect that he is not under arrest is one factor courts frequently consider to 

show lack of custody); United States v. Helmel, 769 F.2d 1306, 1320 (8th Cir. 

1985) (in finding lack of custody, it was “significant” that the suspect was 

specifically informed by the officers that he was not under arrest); Smith v. 

Clark, 2013 WL 4409717, at *7 (E.D. Cal. Aug. 15, 2013) (“We think a 

reasonable person who is told that he is not under arrest would understand 

that he is not in custody.”). 

 

6 Although some courts appear to regard advice to a person that he does not have to answer 

questions as a factor that weighs in favor of a finding of non-custody, there is reason to question 

whether this conclusion is justified. A person subject to police interrogation has no obligation to 

answer questions whether he is in custody or not. And because advising a person that he does 

not have to answer questions is one part of the Miranda warnings, and there is authority for the 

proposition that administering Miranda warnings is a factor that may lead a person to believe he 

is under arrest or its functional equivalent, see Caldwell v. State, 41 So. 3d 188, 201 (Fla. 2010) 

(discussing conflicting views of various courts on this point); State v. Green, 133 N.H. 249, 258 

(1990) (“[T]he reading of Miranda warnings may be a factor in deciding whether a person is in 

custody under some circumstances . . . .”), it is understandable that officers desirous of not

creating a custodial atmosphere would think twice before providing such a “Miranda light” 

warning.

7 That the officers had already obtained an arrest warrant for the defendant prior to interviewing 

him is not relevant to our custody determination, as there is no evidence that the defendant was 

aware of the warrant. See Berkemer v. McCarty, 468 U.S. 420, 442 (1984) (“A policeman’s 

unarticulated plan has no bearing on the question whether a suspect was ‘in custody’ at a 

particular time; the only relevant inquiry is how a reasonable man in the suspect’s position would 

have understood his situation.”); see also United States v. Reynolds, 762 F.2d 489, 493 (6th Cir. 

1985) (“Since the warrants were unknown to defendants, their existence could not have affected 

how the defendants understood their position, which is the only relevant consideration under 

Berkemer.”).
26

Although the majority acknowledges that informing a suspect that he is 

not under arrest weighs in favor of a finding of non-custody, its analysis then 

turns this factor upside down by concluding that not also informing the 

defendant he was free to terminate the interrogation “supports a finding of 

custody at some point during the interrogation.” (Emphasis added.) No 

authority supports such an approach.

D

Finally, the majority relies upon the accusatory nature of the 

interrogation as support for its determination that the defendant was in 

custody. It finds “that the accusatory questioning and accusatory statements 

employed by the interrogating police officers each independently weigh in favor 

of a finding of custody, and further, that concurrently they strongly support 

such a finding.” This determination cannot be squared with our prior cases.

True and Laurent spoke with the defendant for approximately seventyfive minutes. Ample authority establishes that an interview of this length is 

not, in itself, sufficient to raise an inference of custody. See, e.g., Hughes, 640 

F.3d at 437 (stating that a ninety-minute interview was of a “relatively short” 

duration); Locke, 149 N.H. at 6 (“The interview’s duration was not excessive: it 

lasted for three and one-half hours.”). 

As for the demeanor of their exchange, the trial court found that “the two 

officers and the defendant spoke back and forth in a conversational tone,” 

despite the intense subject matter being discussed. The officers were neither 

hostile nor confrontational to the defendant, and never raised their voices. To 

the contrary, the trial court described the officers as “polite,” and determined 

that “the character of the encounter was not fueled by hostility or animus.” 

Again this aspect of the interrogation is similar to Hughes, in which the court 

characterized the interview as non-confrontational despite the fact that the 

defendant was being questioned about taking nude photographs of a minor in 

his care — a subject matter that is similarly intense and unpleasant, like the 

alleged sexual assault of K.L. that was the topic of discussion here. See

Hughes, 640 F.3d at 431, 437; see also Locke, 149 N.H. at 7 (finding no 

custody where there was “no evidence of shouting or harsh tones at any time 

during the interview”); Hammond, 144 N.H. at 404 (finding no custody where 

the officers never became confrontational at any point in the questioning). 

Although the interview was non-confrontational in tone, the officers did 

accuse the defendant of molesting K.L., told him several times that they did not 

believe his claims of not remembering certain things, and urged him to tell the 

truth. However, our cases hold that even periods of aggressive questioning

during an otherwise non-confrontational interview are not sufficient to convert 

the interview into custodial interrogation. See, e.g., Steimel, 155 N.H. at 146 

(“We have previously held that confrontational questioning did not constitute 
27

custody where it occurred briefly during an otherwise casual conversation.” 

(citation omitted)). That being the case, it should follow a fortiori that the 

absence of any aggressive or confrontational questioning is an even stronger 

indication of non-custody. 

Our cases also make clear that police interrogation does not become 

custodial merely because its focus is upon the defendant’s alleged criminal 

conduct. For example, in State v. Carpentier, we found that the defendant was 

not in custody even though officers used strong language and loud voices when 

confronting him about discrepancies between his statements and those of other 

witnesses. State v. Carpentier, 132 N.H. 123, 127 (1989). We emphasized that 

“this intense and accusatory questioning lasted less than ten minutes, after 

[which] the interview again became relatively unconfrontational.” Id. (emphasis 

added). Similarly, in State v. Carroll, the defendant’s mother, an off-duty police 

officer, aggressively questioned the defendant at the police station, with three 

other officers present in the interview room. State v. Carroll, 138 N.H. 687, 

689-90 (1994). Both the defendant’s mother and another officer raised their 

voices at times, and the defendant cried at several points during the interview. 

Id. at 690. Moreover, two officers present at the interrogation described it as 

“one of the most emotional and intense interrogations they had ever 

witnessed.” Id. Nonetheless, we found that, under the totality of the 

circumstances, the interview was non-custodial. Id. at 696.

In an attempt to reconcile its finding that the accusatory nature of the 

interrogation rendered it custodial as a matter of law with the trial court’s 

contrary factual finding, the majority relies upon State v. Dailey, 273 S.W.3d 

94, 103 (Tenn. 2009), for the proposition that questioning can be custodial 

when it is accusatory notwithstanding that the officers’ “tone of voice and 

general demeanor were conversational.” But, once again, the comparison is 

unpersuasive because Dailey is readily distinguishable from this case. The 

first and most obvious distinction is that the questioning in Dailey occurred at 

the police station, in a small interview room wherein the defendant was seated 

in the back corner diagonally across from the door in front of which one of the 

two interrogating officers sat. See Dailey, 273 S.W.3d at 97. Unlike this case, 

in which the police informed the defendant from the outset of the purpose for 

their visit, the police in Dailey secured the defendant’s presence at the station 

through the ruse that they needed to take a second set of “elimination 

fingerprints” because the defendant worked at the business where the victim’s 

body was discovered. Id. During the course of the un-warned interview, the 

officers not only falsely told the defendant that his fingerprints “had been found 

in a place they shouldn’t have been” and suggested that they had other 

unspecified forensic evidence of his guilt, but — most significantly for present 

purposes — they told him that “if they went strictly on the evidence, they would 

have to charge [him] with first degree murder.” Id. at 98 (quotations omitted). 

In contrast, until the very end of the interview, the officers in this case made no 

statements to the defendant that they could arrest him or that they intended to 
28

do so. Given the circumstances in Dailey, it is not at all surprising that the 

court found that the defendant was in custody at least at the point when the 

officer made the “if I go strictly on the evidence” statement. See id. at 104. 

Dailey, however, offers no support for a similar result in this case. 

Thus, although I do not dispute that accusatory statements and 

expressions of disbelief in a suspect’s veracity are factors that cut in favor of 

custody, we have never held that they alone are sufficient to find that a suspect 

was in custody — and here, as shown above, there are no other circumstances 

sufficient to support such a finding. As the United States Supreme Court has 

explained:

[A] noncustodial situation is not converted to one in which Miranda

applies simply because a reviewing court concludes that, even in 

the absence of any formal arrest or restraint on freedom of 

movement, the questioning took place in a “coercive environment.” 

Any interview of one suspected of a crime by a police officer will 

have coercive aspects to it, simply by virtue of the fact that the 

police officer is part of a law enforcement system which may 

ultimately cause the suspect to be charged with a crime. But 

police officers are not required to administer Miranda warnings to 

everyone whom they question.

Oregon v. Mathiason, 429 U.S. 492, 495 (1977); see also United States v. 

Phillip, 948 F.2d 241, 247 (6th Cir. 1991) (“Coercive environments not rising to 

the level of formal arrest . . . do not constitute custody within the meaning of 

Miranda.” (citation omitted)).

III

Virtually all of the cases cited by the majority are relied upon only for 

general propositions of law, such as that custody is more apt to be found in 

police-initiated as opposed to suspect-initiated encounters, see ante at 12

(citing United States v. Griffin, 922 F.2d 1343, 1351 (8th Cir. 1990)), that the 

accusatory nature of questioning is a factor that weighs toward a finding of 

custody, see ante at 9-11 (citing Dedrick, 132 N.H. at 225), and so on. I do not

quarrel with these general legal principles. However, what the majority fails to 

recognize is that many of the cited opinions held that the questioning at issue 

did not constitute custodial interrogation. See United States v. Salvo, 133 F.3d 

943, 953 (6th Cir. 1998); United States v. Lifshitz, 03 Cr. 572 (LAP), 2004 U.S. 

Dist. LEXIS 18571, at *26 (S.D.N.Y. Sept. 15, 2004); Com. v. Groome, 755 

N.E.2d 1224, 1236 (Mass. 2001); Steimel, 155 N.H. at 146; Locke, 149 N.H. at 

7; Hammond, 144 N.H. at 404; State v. Graca, 142 N.H. 670, 676 (1998); State 

v. Johnson, 140 N.H. 573, 579 (1995); Green, 133 N.H. at 258-59; State v. 

Tucker, 131 N.H. 526, 531 (1989); People v. Henry, 980 N.Y.S.2d 594, 597 

(App. Div. 2014).
29

Above I have detailed the distinctions between this case and a few of the 

cases relied upon by the majority in which the courts did find custody. 

However, the reality is that all such cases relied upon by the majority are 

readily distinguishable from this case,8 either because they involved stationhouse interrogation — the core concern that Miranda warnings were designed 

to ameliorate — or because they involved significantly greater coercive elements 

than are present here. See United States v. Beraun-Panez, 812 F.2d 578, 579-

80 (9th Cir.) (questioning of defendant by two officers occurred out of doors; 

officers did not tell him he was under arrest nor was he placed in handcuffs; 

officers accused defendant of starting a fire, falsely told him that witnesses 

could place him at the scene, demanded to know why he was lying when he 

denied it, and told him that he could be deported if he “kept lying” or if he was 

convicted; when a companion, on horseback, approached the scene of the 

questioning, one of the officers directed him away), modified, 830 F.2d 127 (9th 

Cir. 1987); United States v. Griffin, 7 F.3d 1512, 1514-15, 1519 (10th Cir. 

1993) (defendant was separated from her friend and questioned by single 

officer in small airport police office; questioning was accusatory; defendant was 

not told that she could refuse to answer questions, terminate the interview, or 

leave); Griffin, 922 F.2d at 1346 (defendant was questioned at home; when told 

agents were investigating bank robbery, the defendant immediately said “the 

gun wasn’t loaded”; agents told the defendant’s parents they needed to speak 

with him privately; the defendant was not informed that he was not under 

arrest or that he could refuse to answer questions, was told to always remain 

in view of agents, and was accompanied to another room when getting 

cigarettes); United States v. Wauneka, 770 F.2d 1434, 1437 (9th Cir. 1985) 

(eighteen-year-old defendant transported to law enforcement office by two 

armed officers; questioned first by four or five officers and, after a break during 

which he broke down crying, by two officers; defendant never offered 

opportunity to leave, told he had information only the perpetrator would know, 

that he matched the description of perpetrator, and that he better stop lying); 

White v. United States, 68 A.3d 271, 274-75 (D.C. 2014) (car stop; defendant 

was not asked for license or registration, was immediately handcuffed and 

isolated from young son left in car; not told that he was not under arrest); 

Aguilera-Tovar v. State, 57 A.3d 1084, 1087-90 (Md. Ct. Spec. App. 2012) (after 

appellant was administered a polygraph test, he was interrogated in 

windowless interview room at police station where officers confronted him 

 

8 Even State v. Hieu Tran, 71 A.3d 1201 (Vt. 2012), the case cited by the majority that arguably 

presents the factual scenario most nearly analogous to that involved here, is distinguishable in 

important respects, in that the questioning in that case took place within the confines of a police 

vehicle, the officers did not inform the defendant either that he was free to leave or that he was not 

under arrest, and one of the officers told the defendant to stop playing with his cell phone during 

the interview. See id. at 1203-04. In addition, in Hieu Tran, as in our own Dedrick and Jennings

cases, the trial court made a finding that “the circumstances of the questioning created a policedominated atmosphere,” id. at 1204, and the appellate court merely upheld that finding. In 

contrast, here the majority substitutes its judgment for the trial court’s express finding that “the 

interview bears none of the hallmarks of a formal arrest.”
30

repeatedly and persistently with the fact that he failed the polygraph, accused 

him of lying, and threatened to inform his wife about the negative test results); 

Ross v. State, 45 So. 3d 403, 415-17 (Fla. 2010) (defendant came to station 

voluntarily and was questioned in small room; never told he was free to leave; 

after initial general questioning, interrogation became confrontational and 

accusatorial and lasted for hours, during which defendant was repeatedly 

confronted with evidence against him); Jennings, 155 N.H. at 770-71 (officers 

met the defendant in the driveway of his residence, asked him to “voluntarily” 

come to station; after he agreed, insisted that he travel to station in police car 

rather than his own vehicle, confiscated his car keys and conducted pat-down 

search of his person; questioned the defendant at the station in a small 

interview room; officer confronted the defendant with allegations and said he 

believed them to be true; although the defendant was told he was not under 

arrest and free to leave, there was no evidence he understood this to be true; 

when officer left interview room, told the defendant to knock on the door if he 

needed anything); Dedrick, 132 N.H. at 221-22 (the defendant was questioned 

at police station in small, windowless room; advised of his Miranda rights, 

accused of untruths, and confronted with damning information); State v. Hieu 

Tran, 71 A.3d 1201, 1203-04 (Vt. 2012) (questioning occurred in police cruiser 

outside the defendant’s home; the defendant was repeatedly confronted with 

evidence of guilt, was not told he was not under arrest or free to leave, and told 

not to play with his cell phone); State v. Muntean, 12 A.3d 518, 520-22 (Vt.

2010) (the defendant was questioned in a small, windowless room at the police 

station; not told he was free to leave; continuously confronted with evidence of 

guilt and accused of being untruthful).

Thus none of the cases cited by the majority support the result reached 

by the majority. Simply put, the majority can point to no case in which a court 

has found police questioning of a suspect to involve custodial interrogation 

where the questioning takes place outside as the suspect leads officers on a 

walk-around of his own property, the suspect is informed he is not under 

arrest, there are minimal — if any — exertions of physical control over the 

suspect, and the questioning is not aggressive or hostile. In short, the 

majority’s decision in this case is an outlier in Miranda jurisprudence.

For the above reasons, I respectfully dissent.

DALIANIS, C.J., joins in the dissent.