Interlocutory Appeal from the District Court El Paso County
District Court Case No. 18CR703 Honorable Marla R. Prudek,
Judge
Attorneys for Plaintiff-Appellant: Daniel H. May, District
Attorney, Fourth Judicial District Michael Fisher, Deputy
District Attorney Tanya A. Karimi, Deputy District Attorney
Colorado Springs, Colorado
Attorneys for Defendant-Appellee: Megan A. Ring, Public
Defender Hilary Gurney, Deputy Public Defender Colorado
Springs, Colorado
OPINION
MÁRQUEZ JUSTICE
¶1
Deputies interrogated Jacob Paul Davis in the basement of his
parents' home about an alleged sexual assault. During
this questioning, Davis made incriminating statements. He
later moved to suppress these statements, arguing they were
obtained in violation of Miranda v. Arizona, 384
U.S. 436 (1966). The trial court granted the motion to
suppress, agreeing that Davis was subjected to custodial
interrogation without having been given a Miranda
advisement. The People then filed this interlocutory appeal
under section 16-12-102(2), C.R.S. (2019), and C.A.R. 4.1,
seeking review of the court's suppression order. Because
we conclude that Davis was not in custody for purposes of
Miranda, we reverse the trial court's order
suppressing the statements.
I.
Facts and Procedural History
¶2
Deputy testimony and body camera footage presented at
Davis's suppression hearing yielded the following facts.
At approximately 6 a.m. on February 2, 2018, Deputy David
Glenn and Sergeant Owen McCormack arrived at Davis's
residence in response to a report of sexual assault. Davis
had been living for approximately nine months in a basement
bedroom of the home, which belonged to his father and
stepmother. When the deputies arrived, the alleged victim was
in the kitchen on the main floor.
¶3
Davis's stepmother escorted the deputies to Davis's
basement bedroom. The deputies were armed but did not have
any weapons drawn. Before entering Davis's room, Glenn
called Davis's name several times.
¶4
After receiving no response, Glenn entered the room, while
McCormack remained in the doorway. Davis appeared to be
sleeping. Standing a few feet from the bed, Glenn shook
Davis's leg. Glenn asked Davis to sit up and began asking
open-ended questions about several topics, including the
nature of Davis's relationship with the victim. This
interaction lasted between five and seven minutes.
¶5
McCormack then instructed Davis to get out of bed and asked
him to move out of the bedroom, explaining that
"[t]hings are a little safer that way." Davis, who
was wearing boxers and a t-shirt, asked McCormack for
permission to retrieve a pair of sweatpants; McCormack
responded "sure" and retrieved the sweatpants for
him, explaining that he did not know if Davis "ha[d] any
weapons in here or anything like that." Davis then
attempted to find his glasses, and McCormack told him the
deputies would retrieve his glasses later. The deputies
accompanied Davis down a short hallway to an open area in the
basement used for gaming. Glenn instructed Davis to sit in an
armchair next to the wall. Davis was not handcuffed, nor did
the deputies place their hands on him to move him.
¶6
Both deputies briefly left the basement to speak with the
victim, who remained upstairs in the kitchen area. McCormack
later returned to the basement area and stood several feet
from Davis's chair. McCormack testified that he stayed in
the basement with Davis "for officer safety reasons just
to make sure that nothing happened or nobody got hurt."
For the next eight to ten minutes, McCormack and Davis
casually discussed several topics unrelated to the
investigation, including Davis's relationship with his
parents, his relationship with his daughter, his recent
divorce, and McCormack's law enforcement career. At one
point, they talked about the gaming tables in the basement,
and Davis stood up and went over to one of the tables to
remove the cover and show the table to McCormack.
¶7
Glenn eventually returned to the basement and questioned
Davis about the alleged assault for approximately ten
minutes. Glenn stood about five feet from Davis's chair
during this questioning. He spoke in a conversational tone
and used open-ended questions. McCormack, who had remained a
few feet away, twice remarked to Davis that telling the truth
was for Davis's benefit and that he needed to be honest
with the deputies. During the questioning by Glenn, Davis
stated that he had sexual contact with the victim, including
digital penetration, but contended that it was consensual.
¶8 After this questioning, Glenn returned upstairs to
interview the victim again. McCormack remained in the
basement with Davis, and for the next twenty minutes, they
chatted about a range of topics unrelated to the case,
including the weather, poker, and the Denver Broncos football
team. McCormack also accompanied Davis to his bedroom and
allowed Davis to rummage through his bedding to retrieve his
glasses.
¶9
When Glenn returned, McCormack explained to Davis that
another deputy had arrived to help out with interviews to
"make sure we have all the appropriate
information-factual information." McCormack then stated:
[I]f there's anything considered probable cause to make
an arrest, then obviously we're gonna let you know on
that. If not, then we'll let you know that, too. Okay? So
that's where we are right now . . . if you're
wondering why we're standing here, looking at you,
waiting, that's what we're doing. Okay?
Glenn
questioned Davis again for approximately six minutes.
¶10
Around this time, Deputy Bethany Gibson arrived to take over
the case because the other deputies' shifts were ending.
She later testified at the suppression hearing that when she
arrived, McCormack and Glenn "still hadn't made a
conclusion yet on exactly what happened." Gibson came
down to the basement to question Davis, explaining to him
that she had just arrived and asking him to start from the
beginning. Like Glenn, Gibson spoke to Davis in a
conversational tone. At one point, Gibson asked to see a text
exchange with the victim that Davis had described. Davis
asked McCormack for permission to retrieve his phone. Both
deputies accompanied Davis to his room, where he was
permitted to search through his bedding a second time and
retrieve the phone. He then showed the text messages to
Gibson.
¶11
Gibson left the basement while McCormack remained with Davis.
The conversation between McCormack and Davis continued as
they waited another twenty minutes. During this time, Davis
asked McCormack if he could show the deputy a favorite
Broncos jersey. McCormack allowed Davis to retrieve the
jersey from an adjoining room. Davis also asked to use the
restroom but was initially denied permission because the
deputies wanted to collect his clothing as evidence. Finally,
at approximately 7:30 a.m., Gibson returned to the basement
and placed Davis under formal arrest.
¶12
Davis was charged in El Paso County District Court with two
counts of sexual assault and one count of contributing to the
delinquency of a minor. He later moved to suppress the
statements he made in the basement, arguing that he was
subjected to custodial interrogation without having been
given a Miranda advisement. In response, the
prosecution contended that Davis was subjected only to an
investigatory detention, not an arrest, and thus,
Miranda warnings were not required. Following a
hearing, the trial court agreed with Davis and granted the
motion to suppress.
¶13
The trial court began its oral ruling by noting that to
determine whether Davis was in custody for purposes of
Miranda, it had to look at the totality of the
circumstances as discussed in this court's decision in
People v. Matheny, 46 P.3d 453, 465-66 (Colo. 2002).
The trial court also observed that in People v.
Rodriguez, 945 P.2d 1351, 1362 (Colo. 1997), this court
identified certain factors a court must consider in
determining whether an investigatory detention has escalated
into an arrest. Ultimately, however, the trial court did not
rest its ruling on a Rodriguez analysis. That is,
Davis did not argue, and the trial court did not hold, that
Davis's detention was too long in duration to be
justified as an investigative stop and escalated into an
arrest that had to be justified by probable cause.
¶14
Instead, the trial court concluded that the encounter was
never an investigatory detention but was an arrest from the
outset; in other words, the court agreed with Davis that he
was in custody for Miranda purposes from the moment
he was awakened by the deputies. In reaching this conclusion,
the court acknowledged that the deputies did not display any
weapons, did not threaten Davis, and never told Davis he
could not leave the basement. Nevertheless, it concluded
that, under the totality of the circumstances, Davis was in
custody because a reasonable person in his circumstances
would not have felt free to leave the basement. The court
emphasized the early hour and length of the interrogation,
noting that Davis was kept in the basement for an hour and
twenty- five minutes. It also noted the limitations placed on
Davis's movement, ...