Brent A. Willoughby. Order Reversed en banc CHIEF JUSTICE BOATRIGHT delivered the Opinion of the Court, in which JUSTICE HOOD

2023 CO 10, 524 P.3d 1186

• Court: Supreme Court of Colorado
• Decided: March 6, 2023
• Docket: 22SA254
• Status: Published

Opinion

against self-incrimination. The trial court agreed with the defendant that he was

in custody when he made the incriminating statements.

The supreme court now holds that the defendant was not in custody for

Miranda purposes. Applying the factors from People v. Matheny, 46 P.3d 453,

465–66 (Colo. 2002), the court concludes that, under the totality of the

circumstances, a reasonable person in the defendant’s position would not believe

their freedom of movement was restricted to the degree associated with a formal

arrest. Thus, the court reverses and remands.

2 The Supreme Court of the State of Colorado 2 East 14th Avenue • Denver, Colorado 80203

2023 CO 10

Supreme Court Case No. 22SA254 Interlocutory Appeal from the District Court Boulder County District Court Case No. 21CR1741 Honorable Dea M. Lindsey, Judge ________________________________________________________________________

Plaintiff-Appellant:

The People of the State of Colorado,

v.

Defendant-Appellee:

Brent A. Willoughby. ________________________________________________________________________

Order Reversed en banc March 6, 2023 ________________________________________________________________________

Attorneys for Plaintiff-Appellant: Michael T. Dougherty, District Attorney, Twentieth Judicial District Ryan P. Day, Senior Deputy District Attorney Boulder, Colorado

Attorneys for Defendant-Appellee: Megan A. Ring, Public Defender Emily S. Briggs, Deputy Public Defender Boulder, Colorado CHIEF JUSTICE BOATRIGHT delivered the Opinion of the Court, in which JUSTICE HOOD, JUSTICE HART, and JUSTICE SAMOUR joined. JUSTICE BERKENKOTTER, joined by JUSTICE MÁRQUEZ and JUSTICE GABRIEL, dissented.

2 CHIEF JUSTICE BOATRIGHT delivered the Opinion of the Court.

¶1 Police officers interrogated Brent A. Willoughby at his home about domestic

violence allegations. After the People charged Willoughby with several offenses,

he moved to suppress the statements he made during this interrogation, arguing

that the officers obtained them in violation of Miranda v. Arizona, 384 U.S. 436, 444

(1966). The trial court granted the motion, finding that Willoughby had been

subjected to a custodial interrogation without first receiving Miranda warnings.

¶2 The People filed this interlocutory appeal, challenging the trial court’s

suppression order. We hold that Willoughby was not in custody for Miranda

purposes when he made the statements at issue. Therefore, we reverse the portion

of the trial court’s order suppressing the statements and remand the case for

further proceedings consistent with this opinion.

I. Facts and Procedural History

¶3 Four Longmont police officers arrived at Willoughby’s apartment around

6:15 p.m., during daylight hours, in uniform and carrying their service weapons.1

1 We derive the following observations from our review of one officer’s body camera footage, which shows the officers arriving at the scene, their exchanges with Willoughby, and his eventual arrest. See People v. Kutlak, 2016 CO 1, ¶ 13, 364 P.3d 199, 203 (noting that where there is an audio-visual record and there are no disputed facts outside the recording controlling the issue of suppression, this court sits in a similar position as the trial court and therefore may independently review the recording).

3 The officers were following up on a report that Willoughby’s girlfriend, K.M.,

made to Officer Chrystie Wheeler. K.M. alleged instances of domestic violence:

that Willoughby had assaulted her; sent her threatening text messages; and

damaged several items of her property, including pieces of artwork.

¶4 Upon the officers’ arrival, Willoughby didn’t answer his door and instead

began speaking to the officers from his second-story balcony while they remained

on the ground below. Officer Wheeler told Willoughby about K.M.’s allegations

and asked follow-up questions about the location of K.M.’s property. About one-

and-a-half minutes into the encounter, Officer Wheeler told Willoughby, “Brent,

you have two choices: You can come downstairs . . . or I get a warrant for your

arrest.” She repeated the same ultimatum about a minute later. Willoughby

denied K.M.’s allegations and remained on his balcony.

¶5 Willoughby then spoke to Officer Cooper Arvisais about his relationship

with K.M., claiming that she was addicted to alcohol and drugs.2 Officer Arvisais

maintained a calm tone throughout this conversation, telling Willoughby, “I get

2 We note that Willoughby constantly talked throughout this interaction, continually stating his version of the events and denying the officers’ allegations. It is difficult to succinctly describe these statements because it was not a conversation but rather a narrative, with Willoughby consistently interrupting Officer Arvisais.

4 that, man”; “I think we’ve all been there a little bit”; and “it sounds like you have

a pretty tough relationship.”

¶6 About fifteen minutes into the encounter, while Willoughby remained out

of the officers’ reach on his second-story balcony, Officer Arvisais said, “Brent, at

this time you are under arrest for criminal mischief and domestic violence.”

Willoughby told the officers, “You can go get a warrant and come back.” Officer

Arvisais immediately reiterated, “So at this time you are under arrest, and we are

going to apply for the warrant.” Upon hearing this, Willoughby became emotional

and repeatedly asked Officer Arvisais, “What did I do?” Officer Arvisais repeated

the allegations and, for a third time, stated that Willoughby was under arrest: “We

are going to take you to jail. You’re under arrest.”

¶7 Willoughby then claimed that the property K.M. alleged he had destroyed

actually belonged to him. Willoughby offered to show Officer Arvisais his art

equipment to prove ownership of the property. Officer Arvisais asked

Willoughby, “Are you willing to let me come in and look at it?” Then the following

exchange took place:

Willoughby: If I let you in—okay, let’s talk.

Officer Arvisais: Sure, we can talk.

Willoughby: I’ll let you in.

Officer Arvisais: Okay. I appreciate that.

5 Willoughby: Does that mean I’m going to jail? . . .

Officer Arvisais: I’m not gonna lie to you and tell you you’re not going to jail. . . . If you’re voluntar[ily] willing to let us go in there and look, and it proves your side of the story, then it will probably change you going to jail, but I’m not going to tell you one way or another.

Willoughby: Okay, let’s do this. Will you come up, yourself?

Officer Arvisais: I will, but I need a partner—

Willoughby: I won’t hurt you, bro. I’m not that type of fella. I love you guys in blue. . . .

Officer Arvisais: Brent, breathe. You gotta listen to me. Take a breath, okay. Take a breath. I’m willing to go in the apartment, but I need my partner to stand at the door with the doorway open.

¶8 Willoughby then gave Officer Arvisais permission to enter, opening the

door while crying and saying, “Please don’t arrest me, sir.” After letting him in,

Willoughby showed his artwork to Officer Arvisais, and they discussed

Willoughby’s guitar and how he learned to play. Willoughby moved and paced

around the apartment, picking up various objects and showing them to the

officers.

¶9 While inside the apartment, Officer Arvisais’s tone of voice remained calm.

Throughout the encounter, Officer Arvisais remained a few feet from Willoughby

and did not touch him. Officer Arvisais asked Willoughby if he would like a glass

of water to help him calm down and told him to take a breath. When Officer

6 Arvisais noticed that Willoughby was beginning to break down emotionally, he

made efforts to de-escalate the situation by asking Willoughby questions about his

hobbies, like what kind of guitar he owned and what instruments his father

played. Willoughby was visibly upset throughout the interaction and eventually

asked Officer Arvisais if he could sit down. Officer Arvisais responded, “Yeah

man, you’re free to have a seat,” and asked Willoughby for permission to conduct

a protective sweep of the sofa, which he then performed. Officer Arvisais also

asked Willoughby for permission to “check around” and “turn some lights on.”

¶10 After Willoughby sat down, Officer Arvisais asked Willoughby whether

Officer Wheeler could come into the apartment. Willoughby consented, and

Officer Wheeler entered the apartment while the third officer remained at the

door.3 Officer Wheeler began speaking with Willoughby, saying, “[T]ell me about

the shadow box . . . that you broke. You sent [K.M.] a text message. And then you

said ‘your car is next.’ Can you tell me about that?” Willoughby responded,

“[S]ometimes I just try to get her pissed off to where she comes home.”

¶11 While Willoughby and Officer Wheeler spoke, Officer Arvisais continued to

seek Willoughby’s permission to look around the apartment, asking if he could

3 Although four officers initially reported to the scene, it is not clear where the fourth officer was at this time.

7 look through a garbage bag on the balcony. Willoughby responded, “No, no,

that’s just trash.” Officer Arvisais responded, “Okay,” and didn’t search the bag.

¶12 Still emotional, Willoughby described his concerns about K.M.’s health to

the officers. Officer Wheeler then asked Willoughby again about the text messages

that he allegedly sent to K.M., to which he responded, “I’m gonna smoke my cigar.

I just—I need to smoke my cigar.” Officer Arvisais then told Officer Wheeler to

“just give [Willoughby] a second,” and the officers waited while he smoked his

cigar. About one-and-a-half minutes later—and approximately seven minutes

after Officer Arvisais entered the apartment—the officers formally arrested

Willoughby. The entire interaction, from the officers’ arrival to the arrest, lasted

less than thirty minutes.

¶13 Ultimately, the People charged Willoughby with criminal extortion, second-

degree assault, unlawful sexual contact, third-degree assault (two counts),

harassment, and criminal mischief. Willoughby pleaded not guilty and moved to

suppress the statements he made to the officers while inside his apartment,

arguing that police had subjected him to a custodial interrogation without

providing the required Miranda warnings.

¶14 Following a hearing, the trial court concluded that Willoughby was in

custody when he made the statements to the officers in his apartment. Specifically,

the trial court relied on the following facts:

8 • Officer Arvisais told Willoughby that he was under arrest three times;

• Officer Arvisais spoke with Willoughby about why he was under arrest;

• Officer Arvisais told Willoughby that he wasn’t going to “lie” to Willoughby and say he was “not going to jail”; and

• Officer Arvisais told Willoughby that he couldn’t promise that anything Willoughby showed the officers would keep him from going to jail.

¶15 The trial court further found that once they entered the apartment, the

officers did not make statements to Willoughby that would have terminated

formal custody. The court reasoned that although the officers did not place

Willoughby in physical restraints or prevent him from moving around the

apartment, Willoughby nevertheless “was aware that [another officer] was

standing at his front door, the only known exit to [his] apartment.” The trial court

thus concluded that “a reasonable person would believe that their movement was

restricted and that they [were] unable to leave.” Accordingly, the court granted

Willoughby’s motion to suppress.

¶16 The People then brought this interlocutory appeal.4

4The People certified that this appeal was not taken for purposes of delay and that Willoughby’s statements to police are a substantial part of the proof of the charges against him, as required by section 16-12-102(2), C.R.S. (2022), and C.A.R. 4.1(a).

9 II. Analysis

¶17 We begin by describing the appropriate standard of review. We next

discuss the applicable law relating to custody for Miranda purposes. Then, we

apply this law to the facts before us and conclude that Willoughby was not in

custody when he made the statements at issue. Accordingly, we reverse the

portion of the trial court’s order suppressing the statements and remand for

A. Standard of Review

¶18 A trial court’s determination that an individual was in custody for purposes

of Miranda presents a mixed question of law and fact. People v. Padilla, 2021 CO 18,

¶ 14, 482 P.3d 441, 445. We defer to the trial court’s factual findings when there is

competent evidence in the record to support them. People v. Kutlak, 2016 CO 1,

¶ 13, 364 P.3d 199, 203. We review the legal effect of those facts de novo. Id.

However, we may also rely upon undisputed facts in the record and

“independently review audio-recorded interrogations.” Padilla, ¶ 14, 482 P.3d at

445.

B. Law Relating to Custody for Miranda Purposes

¶19 The Fifth Amendment to the U.S. Constitution provides that no person

“shall be compelled in any criminal case to be a witness against himself.” U.S.

Const. amend. V. To protect this privilege, officers must provide certain warnings

10 to individuals prior to subjecting them to “custodial interrogation.”5 Miranda,

384 U.S. at 444; see also Effland v. People, 240 P.3d 868, 873 (Colo. 2010) (“Miranda

protections only apply when a suspect is subject to both custody and

interrogation.”). Here, the People do not contest that Willoughby was

interrogated, so we address only whether he was in custody.

¶20 To determine whether an individual is in custody for purposes of Miranda,

“the ultimate inquiry is simply whether there is a ‘formal arrest or restraint on

freedom of movement’ of the degree associated with a formal arrest.” California v.

Beheler, 463 U.S. 1121, 1125 (1983) (quoting Oregon v. Mathiason, 429 U.S. 492, 495

(1977)). This “depends on the objective circumstances of the interrogation, not on

the subjective views harbored by either the interrogating officers or the person

being questioned.”6 Stansbury v. California, 511 U.S. 318, 323 (1994).

5Specifically, officers must advise suspects that they have “a right to remain silent, that any statement [they do] make may be used as evidence against [them], and that [they have] a right to the presence of an attorney, either retained or appointed.” Miranda, 384 U.S. at 444. 6The People argue that the trial court erred when it concluded that “a reasonable person would believe that their movement was restricted and that they [were] unable to leave.” Specifically, the People argue that the trial court erred because this is the standard for whether someone is seized under the Fourth Amendment. See People v. Shoen, 2017 CO 65, ¶ 10, 395 P.3d 327, 330. We have previously stated that “[a] trial court errs by applying the ‘free to leave’ standard in evaluating whether a suspect is in custody under Miranda doctrine.” People v. Begay, 2014 CO

11 ¶21 Accordingly, courts must look to the totality of the circumstances to

determine whether an individual was in custody. Mumford v. People, 2012 CO 2,

¶ 13, 270 P.3d 953, 957. We have provided a list of factors for courts to consider in

making that determination:

(1) the time, place, and purpose of the encounter;

(2) the persons present during the interrogation;

(3) the words spoken by the officer to the defendant;

(4) the officer’s tone of voice and general demeanor;

(5) the length and mood of the interrogation;

(6) whether any limitation of movement or other form of restraint was placed on the defendant during the interrogation;

(7) the officer’s response to any questions asked by the defendant;

(8) whether directions were given to the defendant during the interrogation; and

(9) the defendant’s verbal or nonverbal response to such directions.

Id. (quoting People v. Matheny, 46 P.3d 453, 465–66 (Colo. 2002)). Although courts

may consider any number of these factors, they are not exhaustive, and no single

factor is determinative. People v. Garcia, 2017 CO 106, ¶ 20, 409 P.3d 312, 317.

41, ¶ 16, 325 P.3d 1026, 1030. Thus, the trial court applied the wrong legal standard and, in doing so, erred.

12 Additionally, it is irrelevant whether the individual is “actually arrested at the

close of the interview.” Matheny, 46 P.3d at 468 n.10.

C. Application

¶22 With these principles in mind, we now consider whether Willoughby was

in custody for Miranda purposes. We analyze the nonexhaustive Matheny factors

in turn and conclude that Willoughby was not in custody when he made the

statements at issue.

1. Time, Place, and Purpose of the Encounter

¶23 The officers arrived at Willoughby’s apartment in the early evening, when

it was still daylight. Cf. People v. Davis, 2019 CO 84, ¶ 25, 449 P.3d 732, 739 (noting

that officers waking the defendant and rousing him from bed to question him

weighed in favor of custody); see also People v. Cline, 2019 CO 33, ¶ 22, 439 P.3d

1232, 1238 (noting that an encounter that occurs during daylight weighs against

custody and an encounter that takes place at night weighs in favor of custody).

¶24 The interrogation took place in Willoughby’s apartment. When the

encounter takes place at the individual’s home or a place that is familiar to the

individual, that weighs against a finding of custody. Garcia, ¶ 21, 409 P.3d at 317;

see also People v. Cowart, 244 P.3d 1199, 1204 (Colo. 2010) (noting that because “the

interview took place in a neutral location of [the defendant’s] choice—his living

room,” the questioning was inherently less coercive than questioning in a police-

13 dominated setting); Cline, ¶ 21, 439 P.3d at 1238 (“The location of the interaction is

significant.”).

¶25 The purpose of the encounter was to investigate an allegation of domestic

violence. When the purpose of the encounter is to elicit information from the

suspect of a criminal investigation, that weighs in favor of custody. Compare

Effland, 240 P.3d at 875 (concluding that the purpose of the encounter—to elicit

information from the defendant about an ongoing investigation “for use in a

criminal investigation” against the defendant—weighed in favor of custody), with

Garcia, ¶ 27, 409 P.3d at 318 (concluding that the purpose of the encounter—a

welfare check on a child—weighed against custody).

2. Persons Present During the Interrogation

¶26 Willoughby was alone with the officers during the interrogation. The fact

that a defendant does not have a “representative or neutral party present” during

an interrogation weighs in favor of custody. See Padilla, ¶ 23, 482 P.3d at 447.

¶27 Additionally, there were four officers at the apartment building, with two

officers inside Willoughby’s apartment. One officer stood outside the door,

blocking the only known exit, and Willoughby knew of the officer’s presence. See

Effland, 240 P.3d at 875 (noting that an officer “was stationed outside of [the

defendant’s] hospital room” and the defendant “knew of the officer’s presence,”

which weighed in favor of custody). However, the door remained open until

14 Willoughby’s formal arrest. Cf. id. (concluding that “the investigating officers

clos[ing] the door during the interrogation” weighed in favor of a custody

finding).

3. Words Spoken by the Officer to Willoughby

¶28 Officer Arvisais told Willoughby that he was under arrest three times. That

is significant. Courts place great weight on whether police tell a suspect that they

are under arrest. Compare People v. Begay, 2014 CO 41, ¶ 27, 325 P.3d 1026, 1032

(noting that the fact the defendant “was not told that he was under arrest”

weighed against custody), with Young v. Commonwealth, 706 S.E.2d 53, 55 n.3

(Va. Ct. App. 2011) (“Though inconclusive by itself, the statement ‘you are under

arrest’ nonetheless constitutes evidence of ‘an intent on the part of the arresting

officer to take the person into custody and a corresponding understanding by the

person arrested that he is in custody.’” (quoting State v. Rocheleau, 378 A.2d 1381,

1383 (N.H. 1977))); see also United States v. Savage, No. 07-550-06, 2012 WL 5881852,

at *4 (E.D. Pa. Nov. 20, 2012) (“Being advised that you are under arrest is perhaps

the most significant factor in determining that a suspect is in custody.”).

¶29 This one factor, however, is not dispositive. See Garcia, ¶ 20, 409 P.3d at 317

(“No single factor is determinative.”). It must also be noted that when Officer

Arvisais told Willoughby that he was under arrest, the officers were standing

outside his apartment while Willoughby remained on his second-story balcony,

15 meaning they could not physically control Willoughby or effect an arrest. See

2 Wayne R. LaFave et al., Criminal Procedure § 6.6(f), at 833 (4th ed. 2015) (“A Court

is not likely to find custody for Miranda purposes if the police were not even in a

position to physically seize the suspect . . . .”); see also People v. Mayfield, 928 P.2d

485, 521 (Cal. 1997) (“[E]very court that has faced [this issue] has decided that

telephone conversations between police negotiators and an armed suspect who

has taken refuge in a building that is surrounded by law enforcement officers do not

constitute custodial interrogation for purposes of the Miranda rule.” (emphasis

added)), abrogated on other grounds by People v. Scott, 349 P.3d 1028, 1048 (Cal. 2015).

¶30 Likely recognizing that the officers could not reach him on his balcony,

Willoughby said, “You can go get a warrant and come back.” Thus, Willoughby

did not surrender to the officers but instead challenged their authority. Under

these circumstances, Officer Arvisais’s statement that Willoughby was under

arrest did not actually place him under arrest. Cf. People v. Hankins, 201 P.3d 1215,

1217, 1219 (Colo. 2009) (holding that individual who gave statement while sitting

in police vehicle, after showing officers where he hid the body of his murder

victim, was not in custody because an individual’s “expectation, apprehension, or

knowledge of inevitable arrest are not the Miranda triggers; custody is”).

¶31 Additionally, once the officers actually talked with Willoughby, they asked

open-ended questions, and Willoughby responded in narrative form, often

16 revealing much more information than the officers’ questions sought to elicit. See

People v. Sampson, 2017 CO 100, ¶ 26, 404 P.3d 273, 278 (concluding that the officer

asking open-ended questions and the individual responding in narrative form

weighed against a finding of custody).

4. Officer’s Tone of Voice and General Demeanor

¶32 The officers maintained a light, conversational tone and a calm demeanor

throughout the encounter. When the interrogation is in a “conversational tone,”

it is less likely to be custodial. Davis, ¶¶ 33–34, 449 P.3d at 741. Throughout the

encounter, Officer Arvisais empathized with Willoughby about his relationship

troubles, saying things like “I think we’ve all been there a little bit” and “it sounds

like you have a pretty tough relationship.”

5. Length and Mood of the Interrogation

¶33 The interrogation lasted for less than thirty minutes. A lengthy

interrogation may indicate custody. Compare Cline, ¶ 31, 439 P.3d at 1239

(encounter lasting ninety minutes weighed in favor of custody), with Begay, ¶ 27,

325 P.3d at 1032 (encounter lasting less than twenty minutes weighed against

custody). And for most of the interrogation, the officers were outside the

apartment, speaking to Willoughby from the ground while he was on his second-

story balcony; they were inside his apartment for less than ten minutes.

17 ¶34 While the officers were armed, they neither drew their weapons nor made

any show of force toward Willoughby. See Cline, ¶ 27, 439 P.3d at 1238 (holding

that the defendant was not in custody, in part, because “[t]here was no show of

force by anyone”).

¶35 Additionally, Willoughby was visibly distraught throughout the encounter,

oftentimes appearing to cry. See Effland, 240 P.3d at 875 (citing the defendant’s

emotional distress throughout the interrogation as a factor in favor of custody). In

response, Officer Arvisais repeatedly calmed Willoughby by talking to him about

his guitar and the types of music he plays, and by asking whether he wanted a

glass of water or needed to “take a breath.” At no point did the interrogation

become confrontational. People v. Klinck, 259 P.3d 489, 494 (Colo. 2011) (concluding

that officers asking nonconfrontational questions weighed against custody).

6. Limitation of Movement or Other Forms of Restraint

¶36 The officers did not impose any limitation on Willoughby’s movement

during the interrogation. The officers neither handcuffed Willoughby nor patted

him down. When an officer imposes a limitation on a suspect’s movement during

the interrogation, that weighs in favor of custody. See People v. Clark, 2020 CO 36,

¶ 33, 500 P.3d 356, 362 (noting that this court has “relied on the absence of

handcuffs or other restraints as suggesting that the suspect was not in custody”).

Moreover, Willoughby moved and paced around the apartment, picking up

18 various objects and showing them to the officers. When Willoughby asked the

officers if he could sit down, Officer Arvisais said, “Yeah man, you’re free to have

a seat.” Indeed, the officers imposed so little limitation on Willoughby’s

movement that he smoked a cigar during the encounter, stating “I’m gonna smoke

my cigar. I just—I need to smoke my cigar.” While no factor is dispositive, this is

significant. No one who had their freedom of movement restrained to the degree

associated with a formal arrest would reasonably feel like they could smoke a

cigar, let alone without asking for permission.

7. The Officer’s Response to Willoughby’s Questions

¶37 Officer Arvisais responded to Willoughby’s questions about whether the

officers would still arrest him if he let them inside in a way that suggested

Willoughby’s arrest wasn’t inevitable. See Mumford, ¶ 13, 270 P.3d at 957 (listing

the officer’s response to questions asked by the defendant as a factor in

determining custody (quoting Matheny, 46 P.3d at 465–66)). When Willoughby

asked the officers whether letting them inside meant that he wouldn’t go to jail,

Officer Arvisais responded: “[I]f you’re voluntar[ily] willing to let us go in there

and look, and it proves your side of the story, then it will probably change you

going to jail, but I’m not going to tell you one way or another.” Officer Arvisais’s

response implied that if Willoughby could provide exculpatory evidence, the

officers would likely not arrest him. Therefore, Officer Arvisais made it clear that

19 it was not a foregone conclusion that Willoughby would be arrested at the end of

the encounter.

8. Directions Given to Willoughby

¶38 The officers did not give Willoughby any directions. When officers give the

suspect directions, that weighs in favor of custody. See Garcia, ¶ 28, 409 P.3d at

318. Here, quite the opposite occurred, as the officers asked Willoughby for

permission and direction throughout the encounter. For example, during the

interrogation, Officer Arvisais asked Willoughby for permission to look through a

garbage bag on his balcony, and when Willoughby told him no, Officer Arvisais

simply responded, “Okay.” Moreover, Officer Arvisais ensured that he had

Willoughby’s permission to “check around” and “turn some lights on,” asked if

Officer Wheeler could come inside, and sought Willoughby’s consent to perform

a protective sweep of the sofa. Rather than directing Willoughby, the officers took

direction from him, respecting his wishes when Willoughby withheld consent.

9. Willoughby’s Response to Directions

¶39 Because the officers did not give Willoughby directions, this factor is not

applicable.

10. Weighing the Matheny Factors

¶40 Considering the totality of the circumstances, there are factors in favor of

custody: (1) the purpose of the encounter was to investigate an allegation of

20 domestic violence; (2) Willoughby was alone with the officers during the

interrogation; (3) there were four officers at Willoughby’s apartment, with two

inside his apartment; (4) one officer stood at the door, blocking the only known

exit; (5) Officer Arvisais told Willoughby that he was under arrest three times; and

(6) Willoughby was visibly distraught throughout the encounter.

¶41 We conclude, however, that the factors against custody outweigh the factors

in favor of custody. Specifically, (1) the officers arrived in the early evening, when

it was still daylight; (2) the encounter took place in Willoughby’s living room;

(3) the officers asked open-ended questions, and Willoughby responded in

narrative form; (4) the officers used a conversational, calm tone of voice and

empathized with Willoughby; (5) the interrogation lasted less than thirty minutes;

(6) the officers neither drew their weapons nor made a show of force; (7) the

officers did not restrict Willoughby’s movement and instead let him move freely

around the apartment and—significantly—smoke his cigar; (8) Officer Arvisais

told Willoughby that if he could “prove[] [his] side of the story,” he would likely

not go to jail; and (9) the officers did not give Willoughby directions.

¶42 Clearly, the Matheny factors are weighed differently depending on the

circumstances. It’s not as simple as counting factors. But courts should not rely

on one factor or the absence of one factor to dictate the result of a case. Doing so

would render that one factor determinative. Thus, when considering the totality

21 of the circumstances—as we must—the factors weighing against custody

outweigh the factors in favor of custody.

¶43 To further support our conclusion, we turn to a relatively similar custody

question in Davis, ¶ 24, 449 P.3d at 739, which we find instructive here. In that

case, officers arrived at Davis’s home at 6 a.m. Id. at ¶ 2, 449 P.3d at 735. Because

Davis was still asleep, one of the officers entered his bedroom and shook him

awake. Id. at ¶ 4, 449 P.3d at 735. The officer then instructed Davis to get up and

asked him to move to another room. Id. at ¶ 5, 449 P.3d at 736. At one point, Davis

asked the officers for permission to use the restroom, which the officers initially

denied. Id. at ¶ 11, 449 P.3d at 737. The officers also initially prevented Davis from

retrieving his glasses from his bedroom. Id. at ¶ 5, 449 P.3d at 736. The encounter

lasted nearly ninety minutes. Id. at ¶¶ 2, 11, 449 P.3d at 735, 737.

¶44 This court recognized that four factors indicated that Davis may have been

in custody: (1) the encounter lasted nearly ninety minutes; (2) one of the officers

stood between Davis and the exit; (3) the officers physically “roused” Davis from

bed and questioned him; and (4) the officers isolated Davis from other members

of his family. Id. at ¶ 25, 449 P.3d at 739. We concluded, however, that Davis was

not in custody primarily because of three factors: (1) the “neutral location” of the

interrogation; (2) the “lack of force or physical restraint”; and (3) the

“conversational tone of questioning.” Id. at ¶ 26, 449 P.3d at 740.

22 ¶45 Davis informs our conclusion that Willoughby was not in custody when he

made the statements at issue here. Some factors that weighed in favor of custody

in Davis are similar to Willoughby’s interrogation (e.g., the officers stood by the

door and isolated the suspect in each case). And a significant factor here that

weighs in favor of Willoughby’s custody was not present in Davis (namely, the

officers telling Willoughby three times that he was under arrest). However, some

factors that weighed in favor of custody in Davis are also inapplicable here (e.g.,

the officers roused Davis from bed at 6 a.m. and interrogated him for ninety

minutes, but here, the officers didn’t touch Willoughby and interrogated him for

less than thirty minutes).

¶46 Most importantly, the three factors in Davis that we found persuasive as

weighing against custody are also present here. First, Willoughby was

interrogated in his living room—a neutral location. Second, the officers used

neither force nor physical restraints on Willoughby; indeed, no officer touched

Willoughby until his formal arrest, and he was free to move around and smoke a

cigar. Finally, the officers used a conversational tone throughout the interrogation:

Officer Arvisais talked to Willoughby about his hobbies and his relationship with

K.M., and he tried to empathize with Willoughby when possible. Thus, like in

Davis, the factors weighing against a finding of custody here outweigh the factors

in favor of custody.

23 ¶47 Therefore, considering the totality of the circumstances, Willoughby’s

freedom of movement wasn’t restricted to the degree associated with a formal

arrest. Thus, he was not in custody at the time of the interrogation.

III. Conclusion

¶48 Accordingly, the trial court erred in suppressing Willoughby’s statements

under Miranda. We thus reverse that portion of the trial court’s order and remand

this case for further proceedings consistent with this opinion.

JUSTICE BERKENKOTTER, joined by JUSTICE MÁRQUEZ and JUSTICE

GABRIEL, dissented.

24 JUSTICE BERKENKOTTER, joined by JUSTICE MÁRQUEZ and JUSTICE

GABRIEL, dissenting.

¶49 The police told Willoughby at least four times that he was under arrest. One

of the officers also explained that, because he had committed a domestic-violence

offense, the officers had to arrest him and, further, that the officers could be liable

if they did not take him to jail. When Willoughby point-blank asked if he was

under arrest, the answer was “yes.” And, notably, throughout the encounter, three

police officers blocked the only known exit from his home, to ensure he did not

leave.

¶50 The majority nonetheless concludes that Willoughby was not in custody

when the officers interrogated him and thus the trial court erred when it

suppressed the unwarned statements that Willoughby made to the police. Maj.

op. ¶ 2. I disagree. Caselaw directs that when an officer tells a suspect that they

are under arrest, courts are to give that statement great weight in determining

whether a reasonable person would think that their freedom had been restricted

to the degree associated with formal arrest. Applying that direction, I conclude

that the words spoken by the officers to Willoughby, under these particular

circumstances, would cause a reasonable person gauging their degree of freedom

to conclude that the officers meant what they said: that they were under arrest.

1 And because I conclude that Willoughby was in custody at the time he was

interrogated, I respectfully dissent.

¶51 I begin by reviewing the facts of the case based on the record before the trial

court. Then, I explain why the majority’s conclusion that Willoughby was not in

custody for purposes of the Fifth Amendment misses the mark.

I. Factual Background

¶52 On October 19, 2021, four police officers—Officer Wheeler, Officer Arvisais,

Officer McNulty, and Officer Holladay—went to Willoughby’s home to arrest him

in connection with allegations that he had assaulted his girlfriend and damaged

her property.1 When the officers arrived, Officer Wheeler, the lead investigator,

and Officer Arvisais went upstairs and knocked on the front door of Willoughby’s

second-floor apartment. From outside the door, they announced they wanted to

talk with him, adding that he had committed a crime and that they wanted him to

come downstairs.

1Section 18-6-803.6(1), C.R.S. (2022), prescribes, “When a peace officer determines that there is probable cause to believe that a crime or offense involving domestic violence . . . has been committed, the officer shall, without undue delay, arrest the person suspected of its commission.” (Emphasis added.) See Spalsbury v. Sisson, 250 F.App’x 238, 246 (10th Cir. 2007) (“Colorado’s domestic violence statute requires an officer to make an arrest when he has probable cause to believe that a crime involving domestic violence has occurred.”).

2 ¶53 Instead of answering the door, Willoughby went out to his balcony, which

faced the apartment’s parking lot, and started talking to Officer McNulty, who was

standing on the sidewalk in front of the apartment. Because Willoughby would

not come to the front door, Officer Wheeler descended to the sidewalk to direct

the conversation. Officer Wheeler asked Willoughby about sending threatening

text messages to his girlfriend, cutting up her driver’s license, and destroying her

framed artwork. Then Officer Wheeler informed Willoughby that destroying

property is a crime—which, in his case, was a domestic-violence offense—and that

he needed to come downstairs so she could arrest him. Elaborating, she told him

that, because this was a domestic-violence offense, he had two choices: he could

come downstairs or they could get a warrant for his arrest.

¶54 Willoughby was having none of it. He refused to leave his apartment and

told Officer Wheeler that she needed to get a warrant. Willoughby was becoming

increasingly upset and visibly agitated.

¶55 Officer Arvisais, who by then had joined Officer Wheeler on the sidewalk,

also began talking with Willoughby. Officer Holladay replaced Officer Arvisais at

Willoughby’s front door, the only known exit from his home. Officer McNulty

stood at the bottom of the stairs leading from Willoughby’s apartment to the

sidewalk and parking lot. Officer Arvisais and Officer Wheeler then discussed the

fact that they had to arrest Willoughby since he was accused of a crime of domestic

3 violence, which meant they couldn’t just leave the scene. So, they decided that

Officer Wheeler would return to the station to get an arrest warrant and a warrant

to search Willoughby’s home while the other officers remained on scene.

¶56 While Officers Wheeler and Arvisais conferred about the best strategy for

taking Willoughby into physical custody—either coaxing him to a public space or

getting an arrest warrant—Willoughby called his mother. Willoughby told her

that there were four officers at his door, and they were getting a warrant for his

arrest. He told his mother they were going to arrest him three times during their

conversation, which lasted about a minute.

¶57 After Officer Wheeler left, Officer Arvisais continued to talk with

Willoughby from the sidewalk below his balcony. Willoughby continually

interrupted Officer Arvisais, trying to persuade Officer Arvisais not to arrest him.

During their exchange, Officer Arvisais repeatedly told an increasingly agitated

Willoughby that (1) he was “under arrest for domestic violence and criminal

mischief,” (2) the police had “probable cause to arrest him,” and (3) he was “going

to jail.” The dialog between Officer Arvisais and Willoughby included the

following exchange:

Arvisais: We have probable cause; we have text messages and photos. At this time, you are under arrest for criminal mischief and domestic violence.

Willoughby: Why do I have to go to jail?

4 Arvisais: Because we can’t walk away from this. . . .

Arvisais: [At] this time you are under arrest, and we are going to apply for the warrant.

Willoughby: Am I under arrest?

Arvisais: You are.

Willoughby: For what?

Arvisais: For criminal mischief and domestic violence. . . .

Arvisais: We have probable cause for domestic violence and criminal mischief. . . .

Arvisais: We are going to take you to jail. You are under arrest. . . .

¶58 Then, Officer Arvisais explained to Willoughby why he had to go to jail: “if

we walk away, we can be held liable if something else happens.” Officer Arvisais

reminded him that it would be getting dark and that he did not want to have to

put bright lights on Willoughby’s apartment, thus embarrassing Willoughby in

front of his neighbors.

¶59 A frantic Willoughby then told Officer Arvisais that he had exculpatory

evidence in his apartment, and that Officer Arvisais could enter his apartment to

see that evidence. Willoughby insisted, however, that no other officers enter his

home.

¶60 As he walked up to Willoughby’s apartment, Officer Arvisais again

informed Willoughby that even with this evidence he was “not going to lie to you

you’re not going to jail.” He also told Willoughby that another officer, Officer

5 Holladay, would have to remain at the open front door for officer safety. Although

Willoughby did not consent to Officer Holladay entering his home, Officer

Holladay nonetheless entered the home and stood fully inside the doorway just

inside the apartment, with his foot holding the door open.

¶61 After Officer Arvisais entered the apartment, he and Willoughby discussed

Willoughby’s art. Willoughby explained that he would not destroy his own

paintings and easel. They also conversed about playing the guitar. Willoughby

asked if he could sit on the couch. Officer Arvisais responded that Willoughby

could sit where he wanted, but before he allowed Willoughby to sit down, Officer

Arvisais searched the general area to ensure that there was “nothing in the

cushions.”

¶62 While Officer Arvisais was in the apartment, Officer McNulty successfully

contacted Officer Wheeler and asked her to return to the scene because

Willoughby had “allowed them inside the apartment.” Upon her return, Officer

Wheeler entered Willoughby’s apartment—with two other officers present—and,

without Mirandizing him, interrogated Willoughby. This fact is undisputed.

¶63 During her questioning, Willoughby became even more distraught; he cried

and smoked with the officers’ permission. Willoughby told Officer Wheeler that

he was worried that he was going to go to jail, but he nonetheless answered her

questions and incriminated himself. Then Officer Arvisais placed Willoughby in

6 “a single wing hold” and Officer Wheeler “tight[ened]” handcuffs around his

wrists thus formally arresting him.

II. Standard of Review

¶64 “A trial court’s determination of whether a suspect was in custody is a

mixed question of law and fact.” People v. Elmarr, 181 P.3d 1157, 1161 (Colo. 2008).

In reviewing the facts, we may look beyond the facts in the trial court’s order and

consider the undisputed facts in the record. People v. Pleshakov, 2013 CO 18, ¶ 16,

298 P.3d 228, 232. Additionally, we review de novo the ultimate legal question of

whether those facts, under the totality of the circumstances, establish that the

suspect was in custody when interrogated. Id.; see also People v. Pittman, 2012 CO

55, ¶ 6, 284 P.3d 59, 61.

III. Analysis

¶65 In my view, the majority is mistaken when it employs our custody

framework in People v. Matheny, 46 P.3d 453 (Colo. 2002), to conclude that

Willoughby was not in custody and that his statements, accordingly, are

admissible.

¶66 I first deconstruct how the majority analytically takes a wrong turn.

7 A. The Majority’s Fifth Amendment Custody Analysis is Flawed

1. Legal Framework

¶67 The Fifth Amendment protects a suspect’s right against self-incrimination.

See U.S. Const. amends. V, XIV; Colo. Const. art. II, § 18. For the purpose of

Miranda, a suspect is in custody when a reasonable person in the suspect’s position

would believe that their freedom had been restricted to the degree associated with

formal arrest. Berkemer v. McCarty, 468 U.S. 420, 442 (1984). Whether, in a

particular circumstance, the deprivation of a suspect’s freedom is associated with

formal arrest is fact-specific and governed by the totality of the circumstances. See

Matheny, 46 P.3d at 468.

¶68 As the majority notes, we articulated an inexhaustive list of factors in

Matheny for courts to consider in making this assessment:

(6) whether any limitation of movement or other form of restraint was placed on the defendant during the interrogation;

(7) the officer’s response to any questions asked by the defendant;

(8) whether directions were given to the defendant during the interrogation; and

8 (9) the defendant’s verbal or nonverbal response to such directions.

Id. at 465–66.

¶69 Importantly, as we have emphasized in our precedent and the majority

acknowledges, no single factor is determinative, and this analysis is highly

fact-specific. Pleshakov, ¶ 20, 298 P.3d at 233.

2. Application

¶70 In my view, the majority fails to give (1) substantial weight to Officer

Arvisais explicitly telling Willoughby he was under arrest four times and (2) any

weight to Officer Arvisais’s numerous additional statements explaining to

Willoughby that he had to go to jail. Instead, it gives far too much weight to less

pertinent factors and weighs all the Matheny factors equally, leading to the wrong

conclusion that Willoughby was not under arrest.

a. Officer Arvisais Repeatedly Told Willoughby He Was Under Arrest

¶71 While an officer’s uncommunicated subjective intent has no bearing on

whether a suspect is in custody when they are interrogated, the Supreme Court

instructs that “[a]n officer’s knowledge or beliefs may bear upon the custody issue

if they are conveyed, by word or deed, to the individual being questioned.”

Stansbury v. California, 511 U.S. 318, 325 (1994). And when an officer tells a suspect

that they are under arrest, courts give that statement great weight in determining

whether a reasonable person would think that their freedom had been restricted

9 to the degree associated with formal arrest. People v. Thomas, 839 P.2d 1174, 1178

(Colo. 1992) (explaining that when an officer told a suspect that “he was being

detained and, at the very least, would receive a ticket,” a reasonable person in the

suspect’s position would understand that their freedom was curtailed to the

degree of a formal arrest).

¶72 Here, Officer Arvisais explicitly told Willoughby that he was under arrest—

four times—and that he had to go to jail.2 And while the majority acknowledges

that courts place “great weight” on whether police tell a suspect that they are

under arrest, maj. op. ¶ 28, it quickly pivots to emphasize that “[t]his one factor,

however, is not dispositive.” Id. at ¶ 29. To be sure, this is a correct, generalized

statement of the law. It is difficult to discern here, though, why the majority goes

on to treat this factor as if it has no greater weight than any of the other factors in

play. That is, the majority does not give Officer Arvisais’s repeatedly telling

Willoughby that he was under arrest the substantial weight caselaw indicates

those words are due. Instead, it gives it equal weight to every other factor.

2The majority indicates that Officer Arvisais told Willoughby he was under arrest three times. Maj. op. ¶ 14. This does not include Officer Arvisais saying “yes” when Willoughby directly asked if he was under arrest. To my mind, this is yet another way that Officer Arvisais told Willoughby he was under arrest. See supra at ¶ 57.

10 ¶73 This error is then compounded by the majority’s failure to address Officer

Arvisais’s additional statements to Willoughby regarding his arrest. For instance,

Officer Arvisais explained to Willoughby why the police wanted him to come

downstairs and why he had to be arrested: that is, he committed a crime of

domestic violence, a mandatory-arrest crime. The majority doesn’t even mention

that statement, let alone consider the impact it would have on a reasonable person

gauging their breadth of freedom, alone or in tandem with the officer’s other

statements. Officer Arvisais also explained to Willoughby that the police could

not let him go because the officers faced liability if they did not arrest him and

something else happened. The majority again does not even mention that

statement or the effect it would have on a reasonable listener, particularly in

conjunction with the officer telling Willoughby—repeatedly—that he was under

arrest.

¶74 To my way of thinking, a reasonable person who heard Officer Arvisais’s

statements would have no question that their freedom had been restricted to the

degree associated with formal arrest. Viewed from this vantage point,

circumstances like being allowed to smoke, or other subtle, nonverbal, or

contextual clues would do little—very little indeed—to tip the Matheny scales.

Which is all to say that the majority also unreasonably weighs the factors against

custody too heavily.

11 b. The Other Matheny Factors Do Not Outweigh Officer Arvisais Repeatedly, Explicitly Telling Willoughby that He Was Under Arrest

i. Time, Place, and Purpose

¶75 First, while the majority posits that the officers came to Willoughby’s home

“to investigate an allegation of domestic violence,” maj. op. ¶ 25, it neglects to

mention that the officers had an additional purpose: to arrest him. This is

because—as Officer Arvisais explained in lay terms to Willoughby—“[w]hen a

peace officer determines that there is probable cause to believe that a crime or

offense involving domestic violence . . . has been committed, the officer shall,

without undue delay, arrest the person suspected of its commission.”

§ 18-6-803.6(1), C.R.S. (2022) (emphasis added).

¶76 As noted, Officer Arvisais not only told Willoughby numerous times that

the officers were there to arrest him and that they had probable cause to do so, he

also specifically told Officer Wheeler that they could not leave the scene since they

had probable cause for a domestic-violence offense.

¶77 Thus, in my view, while the officers may have gone to Willoughby’s home

to investigate, there is no question that the purpose of the encounter was also to

arrest him. This also favors the conclusion that Willoughby was in custody. See

Matheny, 46 P.3d at 465. As previously noted, “[a]n officer’s knowledge or beliefs

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

12 individual being questioned. Those beliefs are relevant . . . to the extent they

would affect how a reasonable person in the position of the individual being

questioned would gauge the breadth of his or her ‘freedom of action.’” Stansbury,

511 U.S. at 325 (citations omitted) (quoting Berkemer, 468 U.S. at 440); accord

People v. Hughes, 252 P.3d 1118, 1122 (Colo. 2011); see also Matheny, 46 P.3d at 467

(holding that the suspect was not in custody because officers told him he was not

under arrest).

¶78 True, the officers may have said this at first from a distance, but Officer

Arvisais again told Willoughby, as Officer Arvisais entered Willoughby’s

apartment, that he could not tell him that he was not going to jail. And when

Officer Wheeler went to the station to get an arrest warrant because Willoughby

refused to come out of his apartment without one, not one, not two, but three

officers remained at Willoughby’s apartment blocking his egress to ensure that he

could not leave. In my view, the officers made it abundantly clear through both

their words and their actions that their purpose in being there was to take

Willoughby into custody and charge him with a domestic-violence offense based

on his girlfriend’s complaint.

¶79 Because the officers’ statements and actions repeatedly communicated to

Willoughby that he was under arrest, I have no doubt that a reasonable person in

those circumstances would have understood that their freedom was curtailed to

13 the degree associated with formal arrest when Officer Wheeler began her

interrogation.

ii. Persons Present During the Interrogation

¶80 I agree with the majority that this factor weighs in favor of custody. The

number of officers focused on Willoughby and the isolated location of the

interrogation favors the conclusion that he was in custody. Maj. op. ¶ 27. We have

generally held that when a suspect is questioned in public or has access to friends

or family and the majority of officers present are not simultaneously focused on

the suspect, then the suspect is not in custody for purposes of Miranda. See People v.

Garcia, 2017 CO 106, ¶ 31, 409 P.3d 312, 318–19; Pleshakov, ¶ 30, 298 P.3d at 235.

Here, Willoughby was alone in his apartment when Officer Wheeler interrogated

him. And three of the four officers at the scene were focused on him as he made

the incriminating statements. These facts favor custody.

iii. The Officer’s Tone of Voice and General Demeanor, Length and Mood of the Interrogation, and Limitation of Movement or Other Form of Restraint

¶81 The majority accurately describes the officers’ tone of voice and general

demeanor as well as the length of the interrogation—factors which do not favor

custody. Maj. op. ¶¶ 32–33. They also consider that Willoughby was “visibly

distraught throughout the encounter, oftentimes appearing to cry,” and appear to

acknowledge that a suspect’s emotional state favors custody. Id. at ¶ 35. But the

14 majority doesn’t appear to give Willoughby’s emotional state any real weight,

instead focusing on Officer Arvisais’s efforts to de-escalate him and viewing that

as a factor that disfavors custody. Id. I acknowledge that an officer’s demeanor is

a relevant factor, but the majority’s approach again appears to distort the weight

of the opposing factors. It places too much weight on Officer Arvisais’s measured

tone and too little on Willoughby’s emotional distress. Effland v. People, 240 P.3d

868, 875 (Colo. 2010) (emotional distress during an interrogation favors that the

suspect is in custody). Willoughby was crying and visibly upset when Officer

Wheeler questioned him, weighing in favor of custody.

¶82 But more significantly, under the unique circumstances of this case, I don’t

see how you can uncouple these factors from what Willoughby had been told

about being under arrest, about having to go to jail, and the positioning of the

officers. A reasonable person under these circumstances would, in my view, be

hard pressed in the face of Officer Arvisais’s words to conclude—simply because

they were allowed to sit on a sofa or smoke—that they could simply get up and

leave or that their formal arrest was not imminent. Would a reasonable person

whose only way out of their home was blocked by an uninvited officer after

repeatedly being told that they were under arrest and had to go to jail—really

believe that they were not deprived of their freedom to the degree associated with

formal arrest? The answer, I suggest, is no.

15 iv. The Officer’s Response to Willoughby’s Questions

¶83 The majority interprets Officer Arvisais’s response to Willoughby’s

questions about whether the officers would still arrest him if he let them inside

(and thus close enough to place him in handcuffs) as suggesting that Willoughby’s

arrest was not inevitable. Maj. op. ¶ 37. What the majority omits is that as he

walked up to Willoughby’s apartment, Officer Arvisais again informed

Willoughby that even with this evidence he was “not going to lie to you that you’re

not going to jail.”

¶84 Thus, I disagree that Officer Arvisais suggested to Willoughby that his arrest

was not inevitable, and I view this factor as also favoring custody.

v. Directions Given to Willoughby

¶85 The majority acknowledges that when officers give a suspect directions, that

weighs in favor of custody. Maj. op. ¶ 38. Then it states that the officers did not

give Willoughby any directions. Id. But that is not so.

¶86 After informing Willoughby that destroying property is a crime—which, in

his case, was a domestic-violence offense—Officer Wheeler told Willoughby that

he needed to come downstairs so she could arrest him. Not long thereafter, the

officers told Willoughby he was under arrest (repeatedly), Officer Arvisais

explained the reasons Willoughby had to go to jail, and he described the officers’

exposure to liability if they did not formally arrest him.

16 ¶87 To be sure, Officers Wheeler and Arvisais were standing below

Willoughby’s balcony when Officer Wheeler initially directed Willoughby to come

downstairs so she could arrest him. But between the officers’ actual words—

including Officer Arvisais’s re-emphasizing that Willoughby was going to jail as

he entered his home—and the officers blocking Willoughby’s egress from his

apartment, the message was clear: you are under arrest, and we are just waiting

until we can get close enough to handcuff you to take you to jail. The officers’

directions to Willoughby favor custody.

vi. Willoughby’s Response to Directions

¶88 The majority concludes this factor was inapplicable because the officers did

not give Willoughby any directions. Maj. op. ¶ 39. Again, I disagree for the

reasons explained above. I also conclude that Willoughby’s reaction to the officers’

directions weighs heavily in favor of custody. Willoughby was agitated, escalated,

and often sobbing throughout most of the thirty-minute encounter. He did not

want to be taken to jail and made this point to the officers repeatedly, as he tried

frantically to persuade Officer Arvisais not to take him to jail. Eventually,

Willoughby bargained with the only chip Officer Arvisais seemed interested in:

letting the officer come into his home to get close enough to formally arrest him.

17 c. Weighing the Matheny Factors

¶89 While I agree that no one Matheny factor is dispositive, the majority’s

conclusion seemingly rests on the mistaken belief that Matheny requires a simple

mathematical tally of the number of factors for custody and the number of factors

against to determine if a Miranda advisement is required before interrogation. But

that cannot be. It is axiomatic that under different circumstances the factors

necessarily bear different weights. Here, the majority straight-up tallies the

factors, concluding that the factors against custody win—9 to 6. Maj. op. ¶¶ 40–41.

¶90 And even if I agreed with the majority’s classification of factors as for or

against custody, I would still disagree with its calculus because the numerous

times that the officers told or otherwise indicated to Willoughby that he was under

arrest must be afforded substantial weight. This makes sense because these words

matter. And here, the specific words spoken by these officers, particularly under

these specific circumstances, would cause a reasonable person gauging the

breadth of their freedom of action to conclude that they were in custody.3

¶91 Moreover, as I explained above, I don’t agree with the majority’s analysis or

weighting of the custody factors. In my view, the majority neglects to properly

3Of course, if the police had not repeatedly told Willoughby that he was under arrest, my assessment of the Matheny factors would be far different, and this case would have a completely different outcome.

18 consider some factors and similarly fails to give others the appropriate weight that

precedent demands. Here, the factors for custody far outweigh the factors against

custody. The fact that Willoughby was allowed to smoke and the fact that the

officers spoke to him in a conversational tone necessarily carry far less weight in

the totality of the circumstances analysis than does the fact that the officers

repeatedly told Willoughby he was under arrest.

¶92 I also take issue with the majority’s reliance on People v. Davis, 2019 CO 84,

449 P.3d 732, to support its conclusion that Willoughby was not in custody. Maj.

op. ¶¶ 43–46. There, two officers went to Davis’s house at 6 a.m. in response to a

reported sexual assault. Davis, ¶ 2, 449 P.3d at 735. When they arrived, Davis’s

stepmother escorted the officers to Davis’s basement bedroom. Id. at ¶ 3, 449 P.3d

at 735. The officers woke Davis up and took him down a hall to talk. Id. at ¶¶ 4–6,

449 P.3d at 735–36. During the ninety-minute encounter, the police did not draw

their weapons and did not significantly restrict Davis’s movement; in fact, they

accompanied him to look for things in his bedroom twice, and spoke to Davis in a

conversational tone. Id. at ¶¶ 8, 26, 32, 449 P.3d at 736, 740–41. The men also

chatted about the Broncos. Id. at ¶ 8, 449 P.3d at 736. During the conversation,

Davis eventually confessed to sexual contact with the victim but claimed it was

consensual. Id. at ¶ 7, 449 P.3d at 736. After that, one of the officers told Davis that

they did not have probable cause to arrest him, and if they did, they would

19 “obviously” let him know. Id. at ¶ 9, 449 P.3d at 736. The officers then continued

to question to Davis for a total twenty-six minutes before placing him under arrest.

Id. at ¶¶ 9, 11, 449 P.3d at 736.

¶93 Before trial, Davis moved to suppress his statements. Id. at ¶ 12, 449 P.3d at

737. The trial court granted his motion, but we reversed, concluding that under

the totality of the circumstances, Davis was not in custody at the time he made his

unwarned statements. Id. at ¶¶ 14, 37, 449 P.3d at 737, 742. We reasoned that,

despite the prolonged encounter, the totality of the circumstances weighed against

custody because (1) the interrogation took place in a neutral location, (2) Davis

was not physically restrained, and (3) the tone of the questioning was

conversational. Id. at ¶¶ 30–31, 33, 449 P.3d at 740–41.

¶94 While the majority indicates that the facts here are similar—or at least

similar enough—to those in Davis to warrant the same conclusion, I am not

persuaded. Most importantly and most obviously, the police in Davis never told

the suspect they had probable cause to arrest him or that he was under arrest or

that he had to go to jail or that they, the officers, would face personal liability if

they did not formally arrest him. To the contrary, they explicitly told Davis that

they did not have probable cause to arrest him. Id. at ¶ 9, 449 P.3d at 736.

20 IV. Conclusion

¶95 Because Willoughby was in custody when Officer Wheeler interrogated

him, his un-Mirandized statements should be suppressed. For the reasons

explained above, I respectfully dissent.