I.
Facts and Procedural History
¶2
One morning on Colfax Avenue in Aurora, Colorado, a vehicle
occupied by two men changed lanes in front of Eugene and his
wife. Eugene honked. The other driver responded by slamming
on his brakes. Eventually, Eugene, his wife, and the two men
from the other car exited their vehicles. A fight between
Eugene and the other driver ensued, and the other driver
suffered cuts to his face and back. After the fight, Eugene
and his wife drove away while the passenger from the other
car took down Eugene's license plate number and called
911.
¶3
Officers Spanos and Thivierge, with the Aurora Police
Department, visited Eugene at his apartment two days later.
It was mid-afternoon when they arrived, and Officer Thivierge
took the lead as the interrogating officer. Officer
Thivierge's body-worn camera recorded the encounter.
¶4
The video begins with Officer Thivierge knocking on the
apartment door and asking Eugene if he would be willing to
talk outside the building. Eugene agreed to do so. Once
outside, Officer Thivierge asked Eugene if he had any
weapons. Eugene responded that he was on probation and
wasn't allowed to carry weapons, and Officer Thivierge
confirmed that Eugene was unarmed by conducting a brief
pat-down search.
¶5
Moments later, Officer Thivierge asked Eugene who owned and
drove the car parked next to them. Eugene said the car
belonged to his wife and that he never drove it. By this
time, Eugene's wife had followed the men outside. Officer
Thivierge then shifted his questioning to the alleged
road-rage incident. Eugene and his wife initially denied
involvement in an altercation, at which point Officer
Thivierge interrupted, "Stop . . . how do you think we
found you?" The couple admitted that Eugene and another
driver "had words" but insisted that the encounter
never turned physical. Eventually, however, Eugene told
Officer Thivierge that he pushed the other driver away after
the other driver attempted to punch him. Eugene denied using
a weapon during the fight.
¶6
Officer Thivierge then asked Eugene's wife to step inside
so he could speak with Eugene alone. Eugene closed the door
behind his wife, and Officer Spanos stood by the door with
one hand on its handle. While fielding Officer
Thivierge's next questions, Eugene lit and smoked a
cigarette. According to Eugene, he pushed the other driver
but never punched him or used a weapon. Officer Thivierge
said he didn't believe Eugene and asked him "what
if" there was a video showing Eugene cutting the other
driver with a knife and driving away. Eugene stuck to his
story, only changing the fact that he, not his wife, drove
away after the incident. Eugene also agreed with Officer
Thivierge that he should have stayed at the scene to call the
police.
¶7
Next, Officer Thivierge stated that he was going inside to
talk with Eugene's wife. Before Officer Thivierge was
fully inside, Eugene asked if he could go to the bathroom.
Officer Thivierge responded, "In a second, I'm just
going to talk to her real quick." For the next fourteen
minutes, Eugene waited outside with Officer Spanos, who made
small talk but didn't question Eugene about the alleged
roadrage incident. During this time, a third officer arrived
and remained outside with Eugene and Officer Spanos.
¶8
When Officer Thivierge resurfaced, Eugene was leaning against
the hood of the car. Eugene began reenacting how the other
driver hit the back of Eugene's head with keys. After a
few more questions, Officer Thivierge accused Eugene of
lying, and Eugene admitted to punching the other driver,
causing the driver to drop to the ground. Eugene maintained
he was not the initial aggressor but nevertheless agreed with
Officer Thivierge that he shouldn't have gotten out of
his car or hit the other driver. Officer Thivierge turned off
his body-worn camera, made a call, and then left without
arresting Eugene. The entire encounter lasted roughly
twenty-seven minutes. At no point did any officer read Eugene
his Miranda rights.
¶9
The prosecution charged Eugene with two counts of second
degree assault. Before trial, Eugene moved to suppress his
statements to Officer Thivierge. He asserted that he had been
subjected to a custodial interrogation and that
Miranda therefore required Officer Thivierge to read
Eugene his rights. The trial court denied Eugene's
motion, concluding that he was not in custody under
Miranda. In support of this conclusion, the trial
court found that
• Eugene's movement was not restricted;
• the officers stood four to five feet away from Eugene;
• the interrogation was conversational, and Officer
Thivierge didn't yell, threaten, or coerce Eugene, even
though he used "assertive mannerisms or language";
• Eugene smoked a cigarette during the interrogation;
• no weapons "were drawn or even gestured to";
• Eugene was responsive, understood what was happening,
and never asked for an attorney or to cease questioning; and
• Eugene was not formally arrested.
¶10
A jury convicted Eugene of second and third degree assault.
¶11
Eugene appealed and argued, as pertinent here, that the trial
court erred by denying his suppression motion. A split
division of the court of appeals agreed, concluding that
Eugene was in custody for Miranda purposes.
Eugene, ¶ 22, 521 P.3d at 668. The division
majority also concluded that the prosecution failed to show
that the trial court's error was harmless. Id.
at ¶ 27, 521 P.3d at 668-69. Judge Bernard dissented. In
his view, the trial court properly determined that Eugene was
not in custody. Id. at ¶ 87, 521 P.3d at 676-77
(Bernard, J., dissenting). ¶12 The prosecution asks us
to reverse the division's judgment for two reasons:
first, Eugene was not in custody; and second, even if he was,
the trial court's failure to suppress Eugene's
statements was harmless.[1]
II.
Analysis A. Standard of Review
¶13
"Whether a person is in custody for Miranda
purposes presents a mixed question of law and fact."
People v. Garcia, 2017 CO 106, ¶ 18, 409 P.3d
312, 316.
We defer to a trial court's findings of fact that are
supported by the record and review de novo the ultimate
custody determination. Id.
B.
"Custody" Under Miranda
¶14
The Fifth Amendment to the United States Constitution
provides that no person "shall be compelled in any
criminal case to be a witness against himself." U.S.
Const. amend. V. "In order to protect this right, police
must provide a suspect in custody with certain warnings
before subjecting him or her to interrogation."
People v. Holt, 233 P.3d 1194, 1197 (Colo. 2010).
Namely, law enforcement "must advise the subject that he
has the right to remain silent; that anything he says may be
used against him; that he has the right to the presence of an
attorney; and that if he cannot afford one, one will be
appointed for him." People v. Matheny, 46 P.3d
453, 462 (Colo. 2002). If law enforcement fails to give these
warnings, the prosecution may not introduce the suspect's
statements during its case-in-chief. People v.
Cline, 2019 CO 33, ¶ 15, 439 P.3d 1232, 1236-37.
For these protections to apply, however, "a person must
both be in custody for Miranda purposes and be
subjected to police interrogation." Garcia,
¶ 19, 409 P.3d at 317.
¶15
All involved agree that Eugene was interrogated, but the
parties dispute whether he was in custody. A person is in
custody if he is formally arrested or "if, under the
totality of the circumstances, a reasonable person in the
suspect's position would have felt that her freedom of
action had been curtailed to a degree
associated with formal arrest." Id. at ¶
20, 409 P.3d at 317. We consider a nonexhaustive list of
factors to determine whether a suspect was subjected to
circumstances commensurate with formal arrest:
(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.
Mumford v. People, 2012 CO 2, ¶ 13, 270 P.3d
953, 957 (citing Matheny, 46 P.3d at 465-66).
"A court may consider many factors, but no single factor
is determinative, and a court is not limited in the number of
factors it may consider." People v. Minjarez,
81 P.3d 348, 353 (Colo. 2003).
¶16
With these guidelines in mind, we turn to the facts at hand.
C.
Application
¶17
Under the totality of the circumstances in this case, we
conclude that Eugene was not in custody during Officer
Thivierge's investigation.
¶18
In concluding otherwise, the division partitioned
Eugene's encounter with the police into three parts:
Officer Thivierge's (1) initial encounter with Eugene and
his wife outside the apartment building, (2) time
interviewing Eugene's wife inside, and (3) subsequent
interrogation of Eugene outside. Eugene, ¶ 15,
521 P.3d at 666. The division reasoned that by the third
phase, the following factors weighed in favor of custody:
• Eugene had been detained outside his apartment for
twenty-two minutes;
• Officer Thivierge remained "calm" but used a
confrontational and accusatory tone;
• Officer Thivierge "directed and maintained"
Eugene's separation from his wife;
• Officer Thivierge told Eugene to wait to use the
apartment bathroom;
• Officer Thivierge suggested to Eugene that a video
showed him committing the alleged crime (when apparently no
such video existed); and
• three officers were near Eugene, with one standing
between Eugene and the apartment door.
Id. at ¶¶ 21, 24, 521 P.3d at 667-68.
Eugene echoes many of these points and adds that he was in
custody because
• Officer Thivierge patted him down;
• Officer Thivierge asked pointed (rather than
open-ended) questions about the road-rage incident;
• the officers' purpose for the investigation was to
obtain a confession; and
• Officer Thivierge never told Eugene that he was free
to leave or that he was not under arrest.
¶19
Although some of these individual circumstances may weigh in
favor of custody, the totality does not. None of these
facts-when viewed alongside the remaining circumstances of
this interrogation-"present [the] serious danger of
coercion" that is required to conclude a suspect was in
"custody" for Miranda purposes. People
v. Davis, 2019 CO 84, ¶ 17, 449 P.3d 732, 737-38
(quoting Howes v. Fields, 565 U.S. 499, 508-09
(2012)).
¶20
To start, the time and place of the interaction-outside
Eugene's apartment in broad daylight-strongly suggest
that Eugene was not in custody. See Cline, ¶
21, 439 P.3d at 1238 (listing cases in which police-suspect
encounters that occurred outside the suspect's home
weighed against a custody determination); Garcia,
¶¶ 21-22, 409 P.3d at 317 (same).
"Miranda warnings were expressly developed as
an added protection against 'incommunicado
interrogation of individuals in a police-dominated
atmosphere.'" People v. Figueroa-Ortega,
2012 CO 51, ¶ 7, 283 P.3d 691, 693 (emphasis added)
(quoting Miranda, 384 U.S. at 445); see also
Matheny, 46 P.3d at 462 ("Miranda
identified the principal threat to the privilege against
self-incrimination as the compulsive effect of psychological
coercion applied during incommunicado interrogation.").
¶21
This daytime, public encounter at a "neutral"
location is a far cry from the type of coercive environment
at issue in Miranda. Mumford, ¶ 19,
270 P.3d at 958;
see Holt, 233 P.3d at 1199. Indeed, the public
nature of the encounter "offsets the 'aura of
authority surrounding an . . . officer,'" People
v. Sampson, 2017 CO 100, ¶ 30, 404 P.3d 273, 278-79
(quoting Berkemer v. McCarty, 468 U.S. 420, 438
(1984)), and can affect the suspect's "peace of
mind," which in turn provides a greater "ability to
withstand psychological compulsion," Garcia,
¶ 22, 409 P.3d at 317; see also People v.
Begay, 2014 CO 41, ¶ 22, 325 P.3d 1026, 1031
(explaining that when encounters occur in public, "the
potential that police will use coercive tactics to compel a
confession is diminished"); People v.
Pleshakov, 2013 CO 18, ¶ 32, 298 P.3d 228, 236
(noting that the environment, "daylight . . . on a
sidewalk, in plain view of any person who might be passing
by," weighed against custody).
¶22
The location is particularly important here, given
Eugene's reliance on a handful of our past custody cases.
For example, Eugene points to Minjarez; People
v. Elmarr, 181 P.3d 1157 (Colo. 2008); and Effland
v. People, 240 P.3d 868 (Colo. 2010), to assert that he
was in custody because of the separation from his wife and
Officer Thivierge's accusatory questions. But in each of
those cases, unlike this one, the interrogation occurred in a
small, closed-door room. See Minjarez, 81 P.3d at
351; Elmarr, 181 P.3d at 1164; Effland, 240
P.3d at 875. Of course, there is no categorical rule
requiring such circumstances before a suspect is in custody;
but here, the lack of a similarly coercive environment
renders these cases unpersuasive.
¶23
Furthermore, the officers here barely restrained Eugene-let
alone to a degree commensurate with a formal arrest. See
People v. Breidenbach, 875 P.2d 879, 886 (Colo. 1994)
("One well-recognized circumstance tending to show
custody is the degree of physical restraint used by police
officers to detain a citizen."). What little restraining
force the officers did impose-monitoring Eugene from a
comfortable distance, making him wait to go to the bathroom,
and briefly frisking him for weapons-is not force
"traditionally associated with concepts of
'custody' and 'arrest.'" People v.
Polander, 41 P.3d 698, 705 (Colo. 2001) (quoting
Breidenbach, 875 P.2d at 886). The officers
didn't brandish weapons, lay hands on Eugene, handcuff or
otherwise physically restrain him, nor did they demand he
stay in one place. See Mumford, ¶ 17, 270 P.3d
at 958; Breidenbach, 875 P.2d at 886. Instead,
Eugene was able to move about freely in the parking lot-even
lighting and smoking a cigarette. See People v.
Willoughby, 2023 CO 10, ¶ 36, 524 P.3d 1186, 1194
("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.").
¶24
Plus, as the trial court and Judge Bernard correctly
observed, several additional circumstances further cut
against custody: the officers did not yell at or threaten
Eugene; the entire encounter spanned less than a half hour,
with questioning of Eugene lasting just twelve or so minutes;
Eugene agreed to exit his
building and speak with the officers; Eugene did not seem
distressed or intimidated; and he never sought to terminate
the encounter.
¶25
This case is therefore more akin to our decisions in
Cline and Figueroa-Ortega, where we
concluded that the suspects were not in custody. In
Cline, the officers denied a suspect access to his
residence and limited his movement for ninety minutes while
they searched it. ¶ 31, 439 P.3d at 1239. Further, the
lead officer interrogated the suspect about illegal drugs
discovered during this search. Id. at ¶ 33, 439
P.3d at 1239. Despite concluding that those circumstances
"support[ed] a finding of custody," we concluded
that the suspect wasn't in custody because there-as
here-the encounter "took place in the parking area
outside . . . of Cline's residence" in broad
daylight, the tone of the encounter was conversational, and
the officers didn't make any show of force beyond their
presence. Id. at ¶¶ 21-30, 439 P.3d at
1238-39.
¶26
Similarly, in Figueroa-Ortega, a single officer
interviewed a suspect "for about twenty minutes . . .
just outside his front door," and the officer accused
the suspect of burglary, confronted him with evidence of his
role in that burglary, and told him he would be charged.
¶ 4, 283 P.3d at 692. Even so, we determined that the
encounter didn't rise to the level of a de facto arrest
because of "the short duration of the interview";
the dearth of "threats or promises or demands"; and
"the fact that it was conducted in broad daylight and
public view, by a single
officer in civilian clothes, who neither offered any show of
force nor restricted the defendant's freedom of movement
in any way." Id. at ¶ 9, 283 P.3d at 693.
¶27
Because the record does not reflect a "significant
curtailment of [Eugene's] freedom of action,"
People v. Stephenson, 159 P.3d 617, 620 (Colo.
2007), we conclude that a reasonable person in his position
would not have felt restrained to the degree associated with
formal arrest. Because Eugene was not in custody,
Miranda's strictures did not apply to the
interrogation, and the division erred by concluding
otherwise.[2]