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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, 86 S.Ct. 1602, 16 L.Ed.2d 694 (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 courts
suppression order. Because we conclude that Davis was not in
custody for purposes of Miranda, we reverse the
trial courts order suppressing the statements.
I. Facts and Procedural History
[¶2]
Deputy testimony and body camera footage presented at Daviss
suppression hearing yielded the following facts. At
approximately 6 a.m. on February 2, 2018, Deputy David Glenn
and Sergeant Owen McCormack arrived at Daviss 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]
Daviss stepmother escorted the deputies to Daviss basement
bedroom. The deputies were armed but did not have any weapons
drawn. Before entering Daviss room, Glenn called Daviss
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
Daviss leg. Glenn asked Davis to sit up and began asking
open-ended questions about several topics, including the
nature of Daviss relationship with the victim. This
interaction lasted between five and seven minutes.
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[¶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 Daviss 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 Daviss relationship with his parents, his
relationship with his daughter, his recent divorce, and
McCormacks 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 Daviss 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 Daviss 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 theres anything considered probable cause to make an
arrest, then obviously were gonna let you know on that. If
not, then well let you know that, too. Okay? So thats where
we are right now ... if youre wondering why were standing
here, looking at you, waiting, thats what were 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 hadnt 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
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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 courts 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 ...