State v. Brandon ( 2023 )

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STATE v. BRANDON—DISSENT
ECKER, J., with whom McDONALD, J., joins, dis-
senting. The majority concludes that the defendant, Ber-
nard A. Brandon, was not in custody during his first
police interrogation for purposes of Miranda v. Ari-
zona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966), even though the interrogation immediately
followed a mandatory meeting with the defendant’s pro-
bation officer, the interrogation was conducted by two
armed police officers in a closed room inside a locked
area of the probation building in which the defendant
was not permitted to move about unescorted, and the
police threatened to arrest the defendant if he refused
to cooperate with their investigation. I cannot agree. In
my view, the defendant’s first interrogation took ‘‘place
in a police-dominated atmosphere containing [inherent]
pressures [that, by their very nature, tend] to undermine
the individual’s [ability to make a free and voluntary
decision as to whether to speak or remain silent]’’;
(internal quotation marks omitted) State v. Mangual,
311 Conn. 182, 196, 85 A.3d 627 (2014); which is pre-
cisely the type of coercive environment that makes
Miranda warnings necessary.
The fundamental flaw in the majority opinion is its
failure to conduct the required analysis with due consid-
eration for the single most important lesson of Miranda
and its progeny, which is that modern interrogation
techniques can purposefully and deliberately be employed
—as they were in the present case—to create intense
psychological pressure intended to overbear a suspect’s
will and to induce him to make self-incriminating state-
ments. See, e.g., Berkemer v. McCarty, 468 U.S. 420,
433, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984) (‘‘[t]he
purposes of the safeguards prescribed by Miranda are
to ensure that the police do not coerce or trick captive
suspects into confessing . . . [and] to relieve the inher-
ently compelling pressures generated by the custodial
setting itself, which work to undermine the individual’s
will to resist’’ (emphasis omitted; footnote omitted;
internal quotation marks omitted)). The majority
focuses far too narrowly on the supposed absence of
physical restraints imposed on the defendant and cor-
respondingly understates the very real psychological
effect that the interrogating officers’ pressure tactics
had on the defendant. In the process, the majority loses
sight of ‘‘the coercive pressure that Miranda was
designed to guard against . . . .’’ Maryland v. Shatzer,
559 U.S. 98, 112, 130 S. Ct. 1213, 175 L. Ed. 2d 1045(2010); see also J. D. B. v. North Carolina, 564 U.S. 261,
279, 131 S. Ct. 2394, 180 L. Ed. 2d 310 (2011) (recognizing
importance of ‘‘internal’’ or ‘‘psychological’’ impacts on
suspect’s perception in determining whether suspect is
in custody for purposes of Miranda (internal quotation
marks omitted)); Arizona v. Fulminante, 499 U.S. 279,
287, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991) (‘‘coercion
can be mental as well as physical’’ (internal quotation
marks omitted)).
In short, the majority’s custody analysis loses sight
of the primary and essential purpose that Miranda was
designed to serve and the evils it was intended to pre-
vent. That purpose is to protect prophylactically against
the coercive pressures that often arise in the specific
context of police interrogations. Custody is ‘‘the touch-
stone for application of [the Miranda] warning require-
ment’’; United States v. Newton, 369 F.3d 659, 671 (2d
Cir.), cert. denied, 543 U.S. 947, 125 S. Ct. 371, 160 L.
Ed. 2d 262 (2004); not because it has independent con-
stitutional significance in this context, but because the
United States Supreme Court has identified it as ‘‘a term
of art that specifies circumstances that are thought
generally to present a serious danger of coercion.’’
Howes v. Fields, 565 U.S. 499, 508–509, 132 S. Ct. 1181,
182 L. Ed. 2d 17 (2012). Thus, Miranda warnings are
not required only when a suspect has been placed under
formal arrest, but also when the circumstances under
which the interrogation occurs give rise to the ‘‘coercive
pressure [that] is Miranda’s underlying concern . . . .’’
United States v. Newton, supra, 671; see United States
v. Griffin, 922 F.2d 1343, 1349 (8th Cir. 1990) (‘‘[the]
indicia of custody [factors] relate to the specific police
practices employed during questioning [that] tend to
either mitigate or aggravate an atmosphere of custodial
interrogation’’). Because I do not believe that the major-
ity opinion fulfills the promise of Miranda and its prog-
eny, I respectfully dissent.
The following facts are relevant to the analysis. The
defendant was on probation at the time of his interroga-
tion and, as a condition of his probation, was required
‘‘to cooperate with his probation officer[s]’’ and to ‘‘fol-
low their directions . . . .’’ On February 16, 2016, the
defendant attended a mandatory meeting with his pro-
bation officer, Shavonne Calixte, at the Office of Adult
Probation located in Bridgeport (probation building).
The probation building is a secure facility, guarded by
uniformed judicial marshals. Visitors must pass through
a metal detector and security checkpoint on the first
floor to access the second and third floors, which are
occupied by the probation department. The offices on
the second and third floors are within locked areas,
and probationers may enter only with the assistance of
an escort.
The defendant met with Calixte in a reporting room
on the third floor of the probation building. At the con-
clusion of their meeting, Calixte informed the defendant
that, ‘‘if he had a moment, he can speak to someone
else who would like to talk to him.’’ Calixte did not tell
the defendant who wanted to talk to him or that he
had a choice to decline to attend the meeting.1 Calixte
escorted the defendant to the second floor, where she
was met by her supervisor, Chief Probation Officer
Peter Bunosso.
Bunosso escorted the defendant to Bunosso’s office,
which was located within a locked and secured area.
Two armed police officers, Lieutenant Christopher
LaMaine and Detective Ada Curet, were waiting for the
defendant inside. Bunosso did not advise the defendant
that he did not have to attend the meeting or that he was
not required to answer the police officers’ questions.
Indeed, Bunosso did not converse with the defendant
at all. Instead, Bunosso removed some work files and
closed the door behind him, leaving the defendant alone
in a closed room with two armed police officers in a
locked area of the probation building.
LaMaine and Curet were wearing plain clothes, with
their badges and guns visibly displayed. The officers
did not brandish their weapons or physically restrain
the defendant, but they also did not tell him that he
was free to leave at the beginning of the interrogation
or advise him of his Miranda rights.
During the first twenty-one minutes of questioning,
LaMaine informed the defendant that, on the basis of
witness statements and the victim’s cell phone records,
the police knew that the defendant had engaged in a
heated argument with the victim on the night of the
murder and that the victim had called the defendant
and arranged to meet him at an establishment called
Robin’s. LaMaine also told the defendant that security
camera footage in the area depicted the defendant’s
vehicle driving to Robin’s and stopping there for one
and one-half to two minutes at the time that the victim
was killed. Faced with this alleged evidence, the defen-
dant confessed that he had had an argument with the
victim, that the victim had called and asked to meet
him at Robin’s, and that the defendant had driven by
Robin’s at the approximate time of the shooting, but
the defendant denied that he had stopped and talked
to the victim. Thus, prior to being advised that he was
not obligated to answer the police officers’ questions
or that he was free to leave, the defendant provided
the police with strong evidence, out of his own mouth,
that implicated himself in the victim’s murder.
After the defendant’s inculpatory admissions, LaMaine
told the defendant for the first time that he could ‘‘walk
away right now if [he] want[s]’’ and that ‘‘nothing [he]
say[s] is going to get [him] arrested today . . . .’’
LaMaine also informed the defendant, however, that he
was the prime, indeed the only, suspect in the victim’s
murder because he had been alone outside with the
victim on the bitterly cold night that the victim was
killed. According to LaMaine, the police had acquired
security footage that portrayed the defendant driving
away as the victim staggered out of a vehicle suffering
from a gunshot wound.2 LaMaine advised the defendant
that now was the time for him to tell his version of
events because it would not be deemed credible if he
waited until later. LaMaine told the defendant that he
‘‘can walk out right now’’ but cautioned that, ‘‘if you
do, we gotta go on the facts we have. There’s just the
two of you there. We know that as a fact because this
isn’t June. This was a zero degree night. There’s two
of you, and, like I said, there’s witnesses there. So, we
can basically say that, you know, somehow he gets shot
when it’s just the two of you. Yeah, we’re probably
gonna be writing a murder warrant for you. And down
the road, you might want to say, ‘okay, well, I want to
tell my side of the story, like he pulled a gun or some-
thing.’ And not that you can’t. You’re gonna. But it’s
gonna not sound very credible because everybody when
they’re jammed up says, ‘oh well, let me tell you, it
was self-defense, or he pulled a gun.’ Right, you know.
Everybody does. So, we’re saying, if that’s what hap-
pened, tell us now because it’s kind of credible now.
We’ll say [the defendant] was cooperative, he met with
us voluntarily, he told us this, and we’ll check it out.
But, you know, later on you’re gonna, you’re gonna
come up with that story later on. I know that. But it
just won’t be credible because, yeah, everybody comes
up with it once they’re arrested. So, we’re not here to,
you know, put any pressure on you. You’re, like I said,
free to go, you can walk out now. I think these guys,
they don’t have any questions for you. But, God, how
does that look if you’re us?’’
LaMaine explicitly threatened to arrest the defendant
soon thereafter. A few minutes after suggesting that it
was now or never to give his version of events, LaMaine
told the defendant that, ‘‘honestly, if we leave it like
this, we’re gonna write a murder warrant for you, and,
if it was your buddy, because someone was with you,
tell us. But you’re by yourself. It’s two of you. I got two
guys that are hot, that . . . had a couple drinks, that
agreed they’re gonna meet, that are the only people
there. And one of them was shot. How do you explain it?
Try.’’ When the defendant did not offer an explanation,
LaMaine repeated the point again, saying that, ‘‘[i]f we
leave here with this story, we’re gonna write a murder
warrant for you. Period.’’ Curet added, ‘‘[w]e have no
choice.’’
At this point in the interview, the defendant changed
his story, explaining that he was not alone in the car,
as he previously had stated, but was accompanied by
a passenger named Outlaw, who shot and killed the
victim. According to the defendant, Outlaw was in the
passenger seat when he stopped at Robin’s. Outlaw
exited the car and spoke to the victim, shots were fired,
and then Outlaw jumped back into the car. The defen-
dant drove away and dropped Outlaw off on Connecti-
cut Avenue in Bridgeport shortly after the shooting.
LaMaine and Curet pressed the defendant for details
regarding Outlaw’s identity, explaining that they had to
prove a case against Outlaw and that, if they could not
do that, then the defendant was ‘‘the one going’’ and
was not going to ‘‘walk . . . .’’ The defendant began
searching his cell phone for Outlaw’s contact informa-
tion. The defendant provided LaMaine and Curet with
Outlaw’s phone number and physical description and
informed them that Outlaw previously had been con-
victed in connection with a shooting. LaMaine and Curet
continually questioned the credibility of the defendant’s
account of events for the next forty minutes, but the
defendant maintained that Outlaw had been present at
the scene and had shot the victim. At the conclusion
of the interrogation, which lasted approximately ninety
minutes from start to finish, LaMaine and Curet seized
the defendant’s cell phone and arranged to meet him
at the police station later that evening to identify Outlaw
from photographs.
The defendant subsequently was arrested and
charged with the victim’s murder, in violation of Gen-
eral Statutes § 53a-54a, among other crimes. Prior to
trial, the defendant moved to suppress, among other
things, the statements he made during the first interro-
gation, arguing in pertinent part that his statements
were procured in violation of Miranda. The trial court
denied the defendant’s motion, finding that, although
the defendant was subject to interrogation for purposes
of Miranda, the defendant was not in custody because
he was never handcuffed or physically restrained, the
police officers did not brandish their weapons, the tone
of the interrogation was cordial, and the defendant was
informed multiple times that he was free to leave. The
defendant’s statements were admitted into evidence at
his jury trial, and the defendant was convicted of the
lesser included offense of manslaughter in the first
degree with a firearm, in violation of General Statutes
§ 53a-55a (a).
The sole issue on appeal is whether the defendant
was in custody during the first interrogation and, as
such, entitled to Miranda warnings. As we previously
have explained, the term ‘‘custody’’ in the context of
Miranda and its progeny ‘‘is a term of art that specifies
circumstances that are thought generally to present a
serious danger of coercion.’’ (Internal quotation marks
omitted.) State v. Mangual, supra, 311 Conn. 193, quot-
ing Howes v. Fields, supra, 565 U.S. 508–509. The cus-
tody inquiry is important ‘‘because the coercion inher-
ent in custodial interrogation blurs the line between
voluntary and involuntary statements’’ and ‘‘heightens
the risk that statements obtained therefrom are not the
product of the suspect’s free choice.’’ (Internal quota-
tion marks omitted.) Id., 191. The court in Miranda
was concerned with protecting criminal defendants
from ‘‘the incommunicado nature of [police] interroga-
tions’’ and the concomitant ‘‘psychological pressure’’;
United States v. LeBrun, 363 F.3d 715, 722 (8th Cir.
2004), cert. denied, 543 U.S. 1145, 125 S. Ct. 1292, 161
L. Ed. 2d 105 (2005); which ‘‘work to undermine the
individual’s will to resist and to compel him to speak
[when] he would not otherwise do so freely . . . . By
adequately and effectively appris[ing] [a suspect] of his
rights and reassuring the suspect that the exercise of
those rights must be fully honored, the Miranda warn-
ings combat [the] pressures inherent in custodial inter-
rogations . . . [and] enhance the trustworthiness of
any statements that may be elicited during an interroga-
tion.’’ (Citations omitted; internal quotation marks omit-
ted.) State v. Mangual, supra, 191; see J. D. B. v. North
Carolina, supra, 564 U.S. 269 (‘‘the physical and psycho-
logical isolation of custodial interrogation can under-
mine the individual’s will to resist and . . . compel him
to speak [when] he would not otherwise do so freely’’
(internal quotation marks omitted)).
Courts have struggled to define the ‘‘slippery’’ con-
cept of custody. Oregon v. Elstad, 470 U.S. 298, 309,
105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985). The federal
cases since Miranda have articulated an objective, two
part analysis, known as the ‘‘reasonable person test
. . . .’’ (Internal quotation marks omitted.) State v.
Mangual, supra, 311 Conn. 193. First, the court must
ascertain whether, ‘‘in light of the objective circum-
stances of the interrogation . . . a reasonable person
[would] have felt [that] he or she was not at liberty to
terminate the interrogation and [to] leave.’’ (Citation
omitted; internal quotation marks omitted.) Id., quoting
Howes v. Fields, supra, 565 U.S. 509. Determining
‘‘whether there is a formal arrest or restraint on freedom
of movement of the degree associated with a formal
arrest’’; (internal quotation marks omitted) Maryland
v. Shatzer, supra, 559 U.S. 112; ‘‘is simply the first step
in the analysis, not the last.’’ Howes v. Fields, supra, 509.
This is because the restraint on the suspect’s freedom
of movement does not, standing alone, demonstrate
that the suspect is subject to the type of coercive ‘‘con-
cerns that powered [Miranda] . . . .’’ Id., 514.3 Thus,
if the freedom of movement prong is satisfied, a court
must examine the second prong of the reasonable per-
son test, which asks ‘‘whether the relevant environment
presents the same inherently coercive pressures as the
type of station house questioning at issue in Miranda.’’
State v. Mangual, supra, 193, quoting Howes v. Fields,
supra, 509. ‘‘Only if the answer to this second question
is yes was the person in custody for practical purposes
. . . and entitled to the full panoply of protections pre-
scribed by Miranda.’’ (Internal quotation marks omit-
ted.) State v. Mangual, supra, 194–95 n.12.
The majority states that I have ‘‘inappropriately col-
lapse[d] the free to leave inquiry with the restraint to
the degree associated with a formal arrest inquiry.’’
Footnote 12 of the majority opinion. To the contrary,
I am fully aware that the free to leave inquiry is only
the first step in a two part analysis. The second part
of the analysis, as I state in the preceding paragraph
and reference throughout this opinion, asks ‘‘whether
the relevant environment presents the same inherently
coercive pressures as the type of station house ques-
tioning at issue in Miranda.’’ Howes v. Fields, supra,565 U.S. 509.4 Indeed, the second part of the custody
inquiry is critical to my analysis because it identifies
precisely the issues that I believe are overlooked by
the majority. As Howes and other cases explain, the
second question is necessary because Miranda is con-
cerned with a particular kind of coercion—the coercive
pressures created by ‘‘interrogations that take place in
a police-dominated atmosphere containing [inherent]
pressures [that, by their very nature, tend] to undermine
the individual’s [ability to make a free and voluntary
decision as to whether to speak or remain silent]
. . . .’’ (Internal quotation marks omitted.) State v.
Mangual, supra, 311 Conn. 196. The second inquiry is
necessary because the circumstances triggering Miranda
will not necessarily be present merely because the inter-
rogation is conducted in a location that coincidentally
happens to restrict the suspect’s freedom of movement.
See footnote 3 of this opinion. Miranda, in sum, is
implicated when the police have not formally arrested
a suspect but nonetheless employ interrogation prac-
tices, whether physical or psychological, that deliber-
ately generate the same kind of coercive pressures as
would an actual arrest.
The in-custody inquiry is flexible and fact intensive.
Indeed, we have emphasized that there is ‘‘no definitive
list of factors’’ because the custody analysis must, by
necessity, ‘‘be based on the circumstances of each case
. . . .’’ (Internal quotation marks omitted.) State v.
Mangual, supra, 311 Conn. 196. That having been said,
the analysis is conducted with attention ‘‘to those kinds
of concerns’’ at the heart of Miranda, namely, Miran-
da’s ‘‘expressed concern with protecting defendants
against interrogations that take place in a police-domi-
nated atmosphere containing [inherent] pressures [that,
by their very nature, tend] to undermine the individual’s
[ability to make a free and voluntary decision as to whether
to speak or remain silent] . . . .’’ (Internal quotation
marks omitted.) Id. We have identified the following
nonexclusive list of factors (Mangual factors) to guide
the custody analysis: ‘‘(1) the nature, extent and dura-
tion of the questioning; (2) whether the suspect was
handcuffed or otherwise physically restrained; (3) whether
officers explained that the suspect was free to leave or
not under arrest; (4) who initiated the encounter; (5)
the location of the interview; (6) the length of the deten-
tion; (7) the number of officers in the immediate vicinity
of the questioning; (8) whether the officers were armed;
(9) whether the officers displayed their weapons or
used force of any other kind before or during ques-
tioning; and (10) the degree to which the suspect was
isolated from friends, family and the public.’’ Id., 197.
It is vital to keep in mind that Mangual never intended
to formulate a rote checklist for mechanical application
in every case. The foregoing factors are not exhaustive,
and ‘‘a heavy focus on enumerated factors, or compari-
sons to other precedents, may eclipse the ‘ultimate [cus-
tody] inquiry’ before the court, which is case specific
. . . .’’ State v. Castillo, 329 Conn. 311, 341, 186 A.3d
672 (2018) (D’Auria, J., dissenting); see also J. D. B.
v. North Carolina, supra, 564 U.S. 270–71 (‘‘[r]ather
than demarcate a limited set of relevant circumstances,
we have required police officers and courts to examine
all of the circumstances surrounding the interrogation
. . . including any circumstances that would have
affected how a reasonable person in the suspect’s posi-
tion would perceive his or her freedom to leave’’ (cita-
tion omitted; internal quotation marks omitted)).
In my view, the majority’s mechanical application of
the Mangual factors obscures the proper analysis with
respect to the defendant’s custodial status.5 For this
reason, I see no need to respond point by point to the
majority’s conclusion regarding each factor, and doing
so would serve only to replicate what I consider to be
a flawed methodology. With respect to the factors that
are relevant to this case, I believe the majority improp-
erly assesses their weight and importance in deciding
the ultimate issue, namely, whether a reasonable person
in the defendant’s position would have believed that
his freedom of movement had been restrained to the
degree associated with a formal arrest.
First, although the tone of the interrogation was cor-
dial, the iron fist beneath the velvet glove was palpable.
The interrogating officers made it clear that the defen-
dant was the prime, if not the only, suspect in the
victim’s murder; indeed, they told him that his arrest
was both inevitable and forthcoming unless he remained
in the room and answered their questions. The United
States Supreme Court has observed that an ‘‘officer’s
subjective view that the individual under questioning
is a suspect . . . bear[s] [on] the question whether the
individual is in custody for purposes of Miranda’’ if the
information is ‘‘communicated or otherwise manifested
to the person being questioned . . . .’’ Stansbury v.
California, 511 U.S. 318, 324, 114 S. Ct. 1526, 128 L.
Ed. 2d 293 (1994). Although ‘‘[e]ven a clear statement
from an officer that the person under interrogation is a
prime suspect is not, in itself, dispositive of the custody
issue, for some suspects are free to come and go until
the police decide to make an arrest,’’ the communica-
tion of such information may ‘‘affect how a reasonable
person in the position of the individual being questioned
would gauge the breadth of his or her freedom of
action.’’ (Internal quotation marks omitted.) Id., 325.
Stated another way, in the present case, the officers’
statements to the defendant that he was the sole and
primary focus of their murder investigation ‘‘would have
affected how a reasonable person in [the defendant’s]
position would perceive his or her freedom to leave.’’
Id.; see United States v. Griffin, supra, 922 F.2d 1348(‘‘[a]lthough custody is not inferred from the mere cir-
cumstance that the police are questioning the one whom
they believe to be guilty, the fact that the individual
has become the focus of the investigation is relevant
to the extent that the suspect is aware of the evidence
against him and this awareness contributes to the sus-
pect’s sense of custody’’ (internal quotation marks omit-
ted)); see also State v. Castillo, supra, 329 Conn. 348(D’Auria, J., dissenting) (‘‘[a]n officer stating that he
believes that the suspect committed a crime and has
evidence to prove it may lead a person in the suspect’s
position and hearing those allegations to conclude that
the officer will not permit him to leave’’).
The pressure on the defendant to remain in the room
and to answer the officers’ questions was increased expo-
nentially when LaMaine told him that, not only was he
the prime suspect in the victim’s murder, but a warrant
for his arrest would be forthcoming if he did not provide
his side of the story to the interrogating officers.6
LaMaine’s statements to the defendant were threats of
arrest, plain and simple, and they must be considered
as part of the in-custody analysis to determine whether
the defendant was subjected to pressures that deprived
him of a meaningful choice about whether to speak or
remain silent. ‘‘[N]umerous courts have indicated that
whether law enforcement officers threatened arrest or
other penalties to induce cooperation is an important
element to assess in evaluating whether a defendant
was in custody.’’ United States v. Blakey, 294 F. Supp.
3d 487, 494 (E.D. Va. 2018); see id., 494–95 (citing cases);
see also, e.g., United States v. DiGiacomo, 579 F.2d
1211, 1214 (10th Cir. 1978) (holding that defendant was
in custody for Miranda purposes, in part because he
‘‘was told he could be arrested and jailed that evening’’
if he did not meet and cooperate with officers). Threats
of arrest are relevant because ‘‘[o]ne of the primary
concerns motivating the Miranda protections is the
danger of coercion [that] results from the interaction
of custody and official interrogation. . . . This danger
is manifest, for instance, [when] the defendant feel[s]
compelled to speak by the fear of reprisal for remaining
silent or in the hope of more lenient treatment should he
confess.’’ (Citations omitted; internal quotation marks
omitted.) United States v. Blakey, supra, 494; see also
Illinois v. Perkins, 496 U.S. 292, 297, 110 S. Ct. 2394,
110 L. Ed. 2d 243 (1990) (‘‘[q]uestioning by captors,
who appear to control the suspect’s fate, may create
mutually reinforcing pressures that the [c]ourt has
assumed will weaken the suspect’s will’’).
Second, although the defendant was not handcuffed
or physically restrained, it is undisputed that his free-
dom of movement was severely restricted. The record
does not reveal whether the door to the interrogation
room was locked, but it is clear that the area of the
building in which the defendant was questioned was
locked and that the defendant was not free to move
about the building without an escort.7 The fact that the
defendant had been escorted to a restricted, locked and
secured area, not accessible to the public, where he
was left in the immediate control of armed police offi-
cers and then systematically questioned for ninety minutes
about his alleged involvement in a recent murder, when
considered in combination with the other factors dis-
cussed in this opinion, indicates that the defendant’s
freedom of movement had been restrained to the degree
associated with a formal arrest. See, e.g., United States
v. Byram, 145 F.3d 405, 409 and n.1 (1st Cir. 1998)
(defendant ‘‘unquestionably [was] subject to deliberate
custodial interrogation’’ because he was ‘‘already in cus-
tody, was taken to a separate room in the courthouse, left
effectively in [a police officer’s] immediate control, and
then questioned systematically about his role in a crimi-
nal episode’’); United States v. Hartwell, 296 F. Supp.
2d 596, 606–607 (E.D. Pa. 2003) (defendant was subject
to custodial interrogation because he ‘‘was in a small
private room, surrounded by two [Transportation Secu-
rity Administration] agents and a police officer blocking
the exit, and had just produced a suspicious item that
he had been exceedingly reluctant to reveal’’), aff’d, 436
F.3d 174 (3d Cir.), cert. denied, 549 U.S. 945, 127 S. Ct.
111, 166 L. Ed. 2d 255 (2006). As the Fifth Circuit Court
of Appeals has explained, ‘‘[i]nterrogations in public
settings are less [police-dominated] than [station house]
interrogations; the public nature reduces the hazard
that officers will resort to overbearing means to elicit
incriminating responses and diminishes the individual’s
fear of abuse for failure to cooperate.’’ United States
v. Chavira, 614 F.3d 127, 135 (5th Cir. 2010); see Ber-
kemer v. McCarty, supra, 468 U.S. 438 (‘‘exposure to public
view both reduces the ability of an unscrupulous police-
man to use illegitimate means to elicit self-incriminating
statements and diminishes the [suspect’s] fear that, if he
does not cooperate, he will be subjected to abuse’’). When
a defendant is questioned by multiple police officers in
a private, secured area, confronted with inconsistencies
in his story, and accused ‘‘of being untruthful, all while
[the officers] deliberately [withheld] Miranda warnings
because [he] had not yet confessed to a crime,’’ such
questioning ‘‘bear[s] [all] the hallmarks of traditional
custodial interrogation . . . .’’ United States v. Chav-
ira, supra, 135.
Last, but by no means least, the defendant was a proba-
tioner, and the interrogation took place in a physical
setting that highlighted the coercive nature of his proba-
tionary status. LaMaine and Curet initiated the interro-
gation at the probation building following the defen-
dant’s mandatory meeting with his probation officer.
‘‘[W]hen the confrontation between the suspect and the
criminal justice system is instigated at the direction of
law enforcement authorities, rather than the suspect,
custody is more likely to exist.’’ United States v. Griffin,
supra, 922 F.2d 1351. As the majority recognizes, the
location of the interview, in the probation office, ‘‘pro-
vides some support for the defendant’s contention that
he was in custody.’’ Further support can be found in
the inherent psychological pressures faced by a suspect
whose liberty already has been restricted by the con-
straints associated with probation and who faces fur-
ther restraints, such as revocation of probation and
incarceration, if he does not comply with the directives
of his probation officer. See, e.g., J. D. B v. North Caro-
lina, supra, 564 U.S. 279 (in determining whether sus-
pect was in custody, court must consider ‘‘[the] ‘inter-
nal’ or ‘psychological’ impact on perception’’); United
States v. Axsom, 289 F.3d 496, 500 (8th Cir. 2002) (‘‘[i]n
deciding whether a person was ‘in custody,’ we must
examine both the presence and extent of physical and
psychological restraints placed [on] the person’s liberty
during the interrogation’’).
To understand the psychological pressures felt by
a probationer in the defendant’s position, I begin by
reviewing the nature and function of probation, which
is a penal status intended by design to be coercive.
‘‘[P]robation is, first and foremost, a penal alternative
to incarceration . . . . [P]robationers . . . do not
enjoy the absolute liberty to which every citizen is enti-
tled, but only . . . conditional liberty properly depen-
dent on observance of special [probation] restrictions.’’
(Internal quotation marks omitted.) State v. Faraday,
268 Conn. 174, 180, 842 A.2d 567 (2004). Probationers
are not in custody by virtue of their status; nor are
they at liberty to exercise their will like free citizens.
Probationers agree to a set of standard conditions of
probation and, in some cases, additional conditions
imposed by the probation officer or the court. For exam-
ple, all probationers are instructed to ‘‘refrain from vio-
lating any criminal law of the United States, this state
or any other state . . . .’’ General Statutes § 53a-30 (a)
(7); see, e.g., State v. Lopez, 341 Conn. 793, 795–96, 268
A.3d 67 (2022). At times, the conditions of probation
may require the probationer to ‘‘[s]ubmit to a search
of [his] person, possessions, vehicle or residence when
the [p]robation [o]fficer has a reasonable suspicion to
do so.’’ (Internal quotation marks omitted.) State v.
Moore, 112 Conn. App. 569, 574, 963 A.2d 1019, cert.
denied, 291 Conn. 905, 967 A.2d 1221 (2009). Additional
conditions may also be imposed. See, e.g., State v.
Imperiale, 337 Conn. 694, 707, 255 A.3d 825 (2021) (‘‘the
Office of Adult Probation properly may impose condi-
tions of probation that place significant restrictions on
a probationer’s liberty during the term of his or her
probation, if such restrictions are reasonably neces-
sary’’); State v. Johnson, 75 Conn. App. 643, 652, 817
A.2d 708 (2003) (‘‘[p]ostjudgment conditions imposed
by adult probation are . . . part of an administrative
function that [§ 53a-30] expressly authorizes as long as
it is not inconsistent with any previously court-imposed
condition’’); see also General Statutes § 53a-30 (a) (17)
(‘‘the court may . . . order that the defendant . . .
satisfy any other conditions reasonably related to the
defendant’s rehabilitation’’).
A probationer who is found to be in violation of
probation may have his probation revoked and be
ordered to serve the unexecuted portion of his sentence
in jail. See, e.g., State v. Fagan, 280 Conn. 69, 105, 905
A.2d 1101 (2006) (observing that revocation proceeding
may ‘‘requir[e] an end to the conditional freedom
obtained by a defendant at a sentencing that allowed
him or her to serve less than a full sentence’’ (internal
quotation marks omitted)), cert. denied, 549 U.S. 1269,
127 S. Ct. 1491, 167 L. Ed. 2d 236 (2007). The probation
revocation hearing offers less protection to probation-
ers than a criminal proceeding. See State v. Faraday,
supra, 268 Conn. 183 (‘‘[A probation] revocation pro-
ceeding . . . is not a criminal proceeding. . . . It
therefore does not require all of the procedural compo-
nents associated with an adversar[ial] criminal proceed-
ing.’’ (Internal quotation marks omitted.)); see also Gag-
non v. Scarpelli, 411 U.S. 778, 782, 93 S. Ct. 1756, 36 L.
Ed. 2d 656 (1973) (‘‘[p]robation revocation, like parole
revocation, is not a stage of a criminal prosecution’’).
‘‘This is because it is well established that a probation
revocation proceeding is not a criminal proceeding but
is instead more akin to a civil proceeding.’’ (Internal
quotation marks omitted.) State v. Dudley, 332 Conn.
639, 648, 212 A.3d 1268 (2019). At a revocation proceed-
ing, the state must prove each alleged violation of proba-
tion only by a preponderance of the evidence (rather
than beyond a reasonable doubt); see, e.g., State v.
Esquilin, 179 Conn. App. 461, 470–71, 179 A.3d 238(2018); and the rules of evidence do not apply to such
proceedings. See Conn. Code Evid. § 1-1 (d) (4); see
also State v. Maietta, 320 Conn. 678, 691, 134 A.3d 572(2016) (recognizing that relevant hearsay evidence is
admissible at probation revocation hearing within dis-
cretion of trial court); State v. Jacobs, 229 Conn. 385,
392, 641 A.2d 1351 (1994) (observing ‘‘that, unlike crimi-
nal trials, in which the exclusionary rule typically
applies, in probation revocation hearings, the exclusion-
ary rule typically does not apply’’).
In light of the restrictions imposed on a probationer’s
liberty and the severe repercussions for noncompliance
with the conditions of probation, a probationer is likely
to interpret any instruction or guidance from a proba-
tion officer as mandatory and feel pressured to comply
with the officer’s requests, even if they are not compul-
sory. See Fare v. Michael C., 442 U.S. 707, 722, 99
S. Ct. 2560, 61 L. Ed. 2d 197 (1979) (observing that
probationers may develop ‘‘a relationship of trust and
cooperation’’ with their officers); People v. Elliott, 494
Mich. 292, 315, 833 N.W.2d 284 (observing that ‘‘inher-
ently compelling pressures’’ exist in relationship between
parolee and parole officer and ‘‘that both parolees and
probationers are under heavy psychological pressure
to answer inquiries made by their supervising officers’’
(internal quotation marks omitted)), cert. denied, 571
U.S. 1077, 134 S. Ct. 692, 187 L. Ed. 2d 559 (2013); State
v. Roberts, 32 Ohio St. 3d 225, 230, 513 N.E.2d 720 (1987)
(stressing heavy psychological pressure to answer ques-
tions posed by probation officer, who is figure of author-
ity and trust).8 In my view, a probationer in the defen-
dant’s position would have perceived Calixte’s escorted
trip to the office of her supervisor at the conclusion
of his mandatory probation meeting as a compulsory
requirement, rather than a voluntary option.
The majority concludes that the defendant voluntarily
chose to attend the meeting in the office of Calixte’s
supervisor because he failed to produce any evidence
that Calixte issued a direct order or threatened to initi-
ate proceedings to violate his probation if he refused
to attend. I see no reason why the defendant should be
required to produce affirmative evidence of a direct
order or threat to satisfy the in-custody requirement.
The issue is not whether Calixte expressly ordered or
threatened the defendant to coerce him to attend the
interrogation but whether a reasonable person in the
defendant’s position would have perceived Calixte’s
request as an order under all of the surrounding circum-
stances, such that refusal to comply could result in
violation of the defendant’s probation. The record is
devoid of any evidence that Calixte ever informed the
defendant that there would be no adverse consequences
if he declined to attend the meeting in her supervisor’s
office. Given the absence of such an advisement, the
pervasive restrictions on liberty imposed by the condi-
tions of probation, and the additional physical and psy-
chological restraints operative in the probation building
following the defendant’s mandatory probation meet-
ing, I believe that a reasonable person in the defendant’s
position would have perceived Calixte’s request as a
command. By focusing on the absence of evidence of
an explicit order or threat, rather than on how Calixte’s
statements would have been perceived by a probationer
in the defendant’s position, the majority misapprehends
the nuanced and fact intensive nature of the Miranda
custody inquiry.9
Given that a reasonable person in the defendant’s
position would have believed that he was required as
a condition of his probation to meet and cooperate with
LaMaine and Curet, just as he was required to meet
and cooperate with his probation officer under threat
of revocation of probation, I find the analysis of the
Eighth Circuit Court of Appeals in United States v.
Ollie, 442 F.3d 1135 (8th Cir. 2006), to be instructive.
In that case, the defendant, Johnny Lee Ollie, Jr., was
on parole when he was instructed by his parole officer
to meet with the police following his regularly sched-
uled parole meeting. Id., 1136. The court found that
‘‘Ollie neither initiated contact with the . . . police nor
voluntarily acquiesced to questioning.’’ Id., 1138. The
court reasoned that ‘‘Ollie’s conduct revealed little more
than an absence of resistance’’ and that it was ‘‘clear
. . . that . . . Ollie was responding to pressure.’’ Id.Because the failure to attend the meeting could have
resulted in the revocation of Ollie’s parole; id.; the court
noted that ‘‘a reasonable person in . . . Ollie’s position
would have been extremely reluctant either to refuse
the interview or to terminate it once it began.’’ Id., 1140.
This one factor, ‘‘[a]bove all else,’’ led the court to
conclude that the ‘‘the failure to advise . . . Ollie of
his rights pursuant to Miranda requires the suppression
of his initial oral confession . . . .’’ Id., 1140.
Similarly, in United States v. Barnes, 713 F.3d 1200(9th Cir. 2013), the Ninth Circuit Court of Appeals held
that the defendant, Michael D. Barnes, was in custody
for purposes of Miranda because he ‘‘did not appear
voluntarily but rather was told to appear for a meeting
with his parole officer under threat of revocation of
parole.’’ Id., 1204. The meeting did not occur on its
usual day or location in the lobby of the parole building
but, rather, ‘‘Barnes was searched and escorted into
the interior of the building through an electronically
locked door.’’ Id., 1203. Behind the locked door were
‘‘two [Federal Bureau of Investigation (FBI)] agents
waiting to question [Barnes]’’ about a drug transaction.
Id. ‘‘The FBI agents directly confronted Barnes with
evidence of guilt [for approximately ten to twenty
minutes] before administering the Miranda warnings.’’
Id., 1204. The court determined that Barnes was in cus-
tody and entitled to Miranda warnings at the com-
mencement of the interrogation, even though ‘‘he was
not handcuffed, arrested, or physically intimidated in
any way,’’ because Barnes ‘‘was in a police-dominated,
confined environment in which his presence was man-
dated by his parole terms . . . .’’ Id., 1204.
I find the logic and reasoning of Ollie and Barnes
persuasive. The defendant did not voluntarily appear
at the meeting with LaMaine and Curet and affirmatively
consent to answer their questions. Instead, he was
under extreme ‘‘pressure resulting from a combination
of the surroundings and circumstances’’; id., 1204–1205;
not the least of which was the looming prospect of revoca-
tion of his probation if he refused to comply. Accord-
ingly, the failure to issue Miranda warnings necessi-
tates the suppression of the defendant’s inculpatory
admissions during his first interrogation.
The fact that LaMaine told the defendant that he
was free to leave does nothing to alter my conclusion
regarding the defendant’s custodial status. Indeed, a
more careful analysis of LaMaine’s ostensibly liberatory
comments demonstrates that they actually conveyed a
strongly coercive message. To begin with, the defendant
was not informed that he could ‘‘walk out’’ of the room
until twenty-one minutes into the interrogation, after
he already had implicated himself in the victim’s mur-
der. This delay is significant.10 The practice of ques-
tioning a suspect first, and then advising him that he
is free to leave after eliciting a confession, is similar to
the ‘‘question first’’ practice expressly denounced in the
Miranda context in Missouri v. Seibert, 542 U.S. 600,
611–13, 124 S. Ct. 2601, 159 L. Ed. 2d 643 (2004) (opinion
announcing judgment). In Seibert, the United States
Supreme Court held that the ‘‘police protocol for custo-
dial interrogation that calls for giving no warnings of
the rights to [remain silent] and [to] counsel until inter-
rogation has produced a confession’’ was unconstitu-
tional. Id., 604. The manifest intent of the question first
practice ‘‘is to get a confession the suspect would not
make if he understood his rights at the outset; the sensi-
ble underlying assumption is that with one confession
in hand before the warnings, the interrogator can count
on getting its duplicate, with trifling additional trouble.’’
Id., 613. Midstream Miranda warnings typically are con-
stitutionally ineffective because they fail ‘‘to convey
a message that [the suspect] retained a choice about
continuing to talk.’’ Id., 617. Likewise, I believe that
midstream advisements regarding a suspect’s freedom to
leave, after a confession already has been elicited through
persistent questioning, fail to convey to a suspect that
he has a choice regarding his participation in the interro-
gation.
Additionally, and perhaps most troubling, is the fact
that LaMaine’s statements regarding the defendant’s
freedom to leave were not without restriction—the
defendant was told repeatedly that he was free to leave,
but, if he chose to do so, he would be arrested for
the victim’s murder.11 This is the very opposite of a
voluntary choice: the defendant was explicitly advised
that his only chance of avoiding arrest was to cooperate
and tell the police his side of the story. The nature
and extent of LaMaine’s threats of arrest, which I have
described in detail, are precisely the type of coercive
interrogation tactic that is intended to overbear a sus-
pect’s will and to elicit a confession. See, e.g., United
States v. Johnson, 351 F.3d 254, 261, 263 (6th Cir. 2003)
(‘‘[p]olice promises of leniency and threats of prosecu-
tion can be objectively coercive,’’ particularly if they
cannot be ‘‘lawfully executed’’); cf. State v. Griffin,
339 Conn. 631, 711–12, 262 A.3d 44 (2021) (Ecker, J.,
concurring in part and dissenting in part) (recognizing
that there is nothing improper about giving ‘‘[a defen-
dant] an accurate statement of the law, consistent with
the known facts of the [crime],’’ but that falsehoods
intended to misrepresent law are coercive), cert.
denied, U.S. , 142 S. Ct. 873, 211 L. Ed. 2d 575(2022).12
The majority relies heavily on the officers’ ‘‘free to
leave’’ commentary as a significant indicator that a rea-
sonable person in the defendant’s position would have
believed that he was, in fact, free to terminate the inter-
rogation and to request an escort out of the building. I
believe, to the contrary, that the comments conveyed—
and were intended to convey—precisely the opposite
meaning to the defendant. Because the defendant was
told that he could not end the interrogation without
suffering a significant adverse consequence (arrest for
the victim’s murder), LaMaine’s statements taken as a
whole actually exacerbated, rather than mitigated, the
coercive nature of the police-dominated environment.
See United States v. DiGiacomo, supra, 579 F.2d 1214;
United States v. Blakey, supra, 294 F. Supp. 3d 494; see
also, e.g., United States v. Czichray, 378 F.3d 822, 825
(8th Cir. 2004) (threats of arrest are relevant to custody
analysis), cert. denied, 544 U.S. 1060, 125 S. Ct. 2514,
161 L. Ed. 2d 1109 (2005); State v. James B., 129 Conn.
App. 342, 347, 19 A.3d 264 (2001) (same), cert. denied,
302 Conn. 910, 23 A.3d 1248 (2011).
The majority acknowledges that threats of arrest
‘‘may have an effect on a reasonable person’s perception
that he is free to leave’’ but concludes that the threats
of arrest in the present case would not have led the
defendant to believe that he ‘‘was restrained to a degree
associated with a formal arrest’’ because the defendant
was told he would be arrested in the future but was
not under arrest now. Footnote 12 of the majority opin-
ion. The majority’s conclusion regrettably sanctions yet
one more transparent ploy for the police to evade the
requirements of Miranda: simply inform the suspect
that, if he chooses to remain silent, his freedom will
end tomorrow rather than today. By approving this tech-
nique, the majority ignores the plain fact that an explicit
threat of an impending future arrest will dilute or even
altogether eradicate the significance of advisements
that a person is free to leave. Its claim is unsupported
by case law and contrary to common sense. It cannot
seriously be maintained that a threat by the interrogat-
ing officers to arrest a suspect in the near future, but
not right now, unless the suspect remains and answers
questions will have no significant impact on the person’s
perception that he is truly free to leave. In addition to
the other factual circumstances discussed at length in
this opinion, the interrogating officers informed the
defendant that they had sufficient evidence to arrest
him for the victim’s murder and that they would procure
an arrest warrant if he terminated the interrogation or
refused to tell his side of the story. Given the officers’
use of ‘‘incriminating information against [the defen-
dant]’’ and threats of arrest to ‘‘leverage their authority
over [him],’’ I believe that a reasonable person in the
defendant’s position would have perceived his freedom
of action to have been restricted to the degree associ-
ated with a formal arrest. (Emphasis in original.) United
States v. Panak, 552 F.3d 462, 469 (6th Cir. 2009).
Accordingly, the defendant’s inculpatory admissions in
his first interrogation should have been suppressed.
The state appears to argue that the admission of the
defendant’s statements in his first interrogation, if
improper, was harmless because the defendant’s state-
ments in his second interrogation, which was preceded
by Miranda warnings and in which the defendant made
the same inculpatory admissions, properly were admit-
ted into evidence. I cannot agree. As I previously explained,
in Missouri v. Seibert, supra, 542 U.S. 600, the United
States Supreme Court held that the police could not
evade the requirements of Miranda by engaging in the
‘‘question first’’ stratagem of eliciting an unwarned con-
fession before administering Miranda warnings, and
then eliciting the same confession again, unless ‘‘a rea-
sonable person in the suspect’s shoes would . . . have
understood [the Miranda warnings] to convey a mes-
sage that [he or] she retained a choice about continuing
to talk.’’ Id., 617 (opinion announcing judgment). The
court in Seibert enumerated five nonexclusive factors to
determine whether the bifurcated procedure will pass
constitutional muster in any particular case: ‘‘[1] the
completeness and detail of the questions and answers
in the first round of interrogation, [2] the overlapping
content of the two statements, [3] the timing and setting
of the first and the second, [4] the continuity of police
personnel, and [5] the degree to which the interrogator’s
questions treated the second round as continuous with
the first.’’ Id., 615; see State v. Donald, 325 Conn. 346,
360 n.8, 157 A.3d 1134 (2017) (acknowledging that Seib-
ert was ‘‘plurality’’ opinion but nonetheless adopting
its analysis to assess admissibility of second warned
confession).
I conclude that the Miranda warnings administered
prior to the defendant’s second interrogation were con-
stitutionally ineffective under Seibert. The defendant’s
second interrogation was comparable in length to the
first interrogation and occurred approximately five hours
later at the Bridgeport police station. The interrogating
officers, Curet and Detective Robert Winkler, treated
the second interrogation as a mere continuation of the
first. Indeed, at the commencement of the second inter-
rogation, Winkler informed the defendant that they
were just seeking to ‘‘continue the conversation that
[the defendant] had’’ earlier that day ‘‘to work out a
couple more details on this.’’ As the majority recognizes,
‘‘[f]or the most part . . . during the second [interroga-
tion], the police officers asked the defendant to review
the account he had provided to them during the first
[interrogation].’’ Under these circumstances, the sec-
ond interrogation clearly was not ‘‘distinct from the
first, unwarned and inadmissible [interrogation],’’ and
should have been suppressed.13 Missouri v. Seibert,
supra, 542 U.S. 612 (opinion announcing judgment).
Taken together, the circumstances surrounding the
questioning of the defendant do not permit me to con-
clude that the defendant voluntarily subjected himself
to a ninety minute police interrogation at the end of his
mandatory probation meeting. It is especially troubling
that the majority reaches the opposite conclusion with
no suggestion of disapproval as to the coercive and decep-
tive interrogation methods employed by the police offi-
cers in this case. Indeed, it appears to normalize deliber-
ate and strategic coercion and manipulation as a feature
of police interrogation by explicitly acknowledging that
‘‘[i]t is undeniable that the defendant was questioned
in a coercive environment’’ but concluding that ‘‘a coer-
cive environment, without more, does not establish that
an interrogation was custodial.’’ Text accompanying
footnote 12 of the majority opinion. The coercive pres-
sures applied to the defendant in the present case far
exceeded those that are inherent in the power differen-
tial between interrogator and suspect. See, e.g., Oregon
v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 50 L. Ed.
2d 714 (1977) (recognizing that ‘‘[a]ny interview of one
suspected of a crime by a police officer will have coer-
cive aspects to it’’). The pressures felt by the defendant
were not merely the result of coercion in the air—
the ambient and unavoidable dynamics inherent in the
power imbalance that exist any time armed police offi-
cers interrogate a private individual. Instead, the coer-
cion was deliberately created and directly applied to
the defendant, with the intent to manipulate and pres-
sure him to confess to the crime under investigation.
It is not too much to require police officers, at the very
least, to advise a suspect of his constitutional rights,
as prescribed by Miranda and its progeny, before
undertaking such an interrogation. Our decision today
gives police officers an incentive to evade the require-
ments of Miranda merely by telling a suspect that he
is free to leave but explaining why doing so will result
in his arrest.
The simple truth is that such methods ultimately do
great harm to the very legal order put forward to justify
those methods in any given case. No public good is
served when we reward official coercion accomplished
by sly techniques designed to evade constitutional prin-
ciples. Our approval of such methods reflects badly on
the criminal justice system and, over time, erodes public
confidence in the fairness and legitimacy of the process.
The only positive news is that it remains an open ques-
tion whether the state constitution provides broader
prophylactic protection in this context. See State v.
Purcell, 331 Conn. 318, 321, 203 A.3d 542 (2019) (adopt-
ing ‘‘a more protective prophylactic rule’’ for Miranda
rights under state constitution). Because the defendant
did not raise an independent state constitutional claim
on appeal, we must leave the resolution of that issue
for another day. See footnote 3 of the majority opinion.
For the foregoing reasons, I believe that the defen-
dant was in custody at the time of his first interrogation
and entitled to the full panoply of protections pre-
scribed by Miranda. Because the defendant’s inculpa-
tory statements should have been suppressed, I respect-
fully dissent.
1
The trial court did not find that Calixte informed the defendant that he
had a choice to decline to attend the meeting in her supervisor’s office, and
the record reasonably cannot be construed to support such a finding. At
the suppression hearing, Calixte testified that she ‘‘basically let [the defen-
dant] know the office visit was concluded. We were done, and we were
walking downstairs, but, if he had a moment, he can speak to someone else
who would like to talk to him.’’ The following exchange then occurred
between Calixte and defense counsel:
‘‘[Defense Counsel]: Do you recall whether or not you gave [the defendant]
any choice to . . . .
‘‘[Calixte]: There’s always a choice. Of course, I gave him a choice.
‘‘[Defense Counsel]: You told him . . . I’m going to take you downstairs
now, okay. My supervisor wants to see you, but you don’t have to see my
supervisor. Is that your recollection?
‘‘[Calixte]: I don’t recall. I don’t recall.’’
By far the most reasonable construction of Calixte’s testimony, viewed
in its entirety, is that she could not recall whether she informed the defendant
that the downstairs meeting was not mandatory. Immediately following her
mid-question declamation, in which she cut off counsel to explain that there
is ‘‘always’’ a choice, Calixte was asked directly if she told the defendant
that ‘‘[m]y supervisor wants to see you, but you don’t have to see my
supervisor.’’ (Emphasis added.) Her answer: ‘‘I don’t recall.’’ Indeed, she
emphasized that she did not recall what she told the defendant by repeating
the concession twice. As discussed in more detail later in this opinion, in
the absence of an advisement that the meeting was optional and that there
would be no adverse consequences for declining to attend, a reasonable
person in the defendant’s position would not have believed that he had a
voluntary choice to refuse to comply with Calixte’s suggestion.
2
No such evidence was adduced at trial, and it appears that LaMaine
lied to the defendant regarding the existence of the evidence to induce a
confession. I recognize that, in Oregon v. Mathiason, 429 U.S. 492, 97 S. Ct.
711, 50 L. Ed. 2d 714 (1977), the United States Supreme Court held that
such factual misrepresentations have ‘‘nothing to do with whether [a defen-
dant] was in custody for purposes of the Miranda rule.’’ Id., 496. But see
id., 497 (Marshall, J., dissenting) (recognizing that defendant would not feel
free to leave during questioning ‘‘after being told by the police that they
thought he was involved in a burglary and that his fingerprints had been
found at the scene’’). I am, of course, ‘‘bound to accept the law as formulated
by the Supreme Court of the United States’’ to resolve the defendant’s federal
constitutional claim; (internal quotation marks omitted) State v. Dickson,
322 Conn. 410, 472 n.11, 141 A.3d 810 (2016) (Zarella, J., concurring in the
judgment), cert. denied, U.S. , 137 S. Ct. 2263, 198 L. Ed. 2d 713(2017); and, therefore, I am required to agree with the majority that LaMaine’s
factual misrepresentations during the first interrogation have no bearing on
the Miranda custody analysis. But see footnote 6 of this opinion. My own
view is that we know a great deal more about false confessions today than
we did forty-five years ago, and Justice Marshall’s dissent in Mathiason has
been proved prescient. As I explained in my concurring and dissenting
opinion in State v. Griffin, 339 Conn. 631, 262 A.3d 44 (2021), cert. denied,
U.S. , 142 S. Ct. 873, 211 L. Ed. 2d 575 (2022), ‘‘lying to suspects
about evidence against them contributes to false confessions’’ by making
suspects ‘‘feel trapped by the inevitability of evidence against them.’’ (Inter-
nal quotation marks omitted.) Id., 730–31 (Ecker, J., concurring in part and
dissenting in part). Because such deceptive interrogation tactics contribute
to the coercive nature of an interrogation, they should factor into the cus-
tody analysis.
3
For example, a suspect may not be free to walk away from an interroga-
tion conducted in his or her own home, or while incarcerated, or during
the course of a traffic stop or other lawful detention. See United States v.
Faux, 828 F.3d 130, 135–36 (2d Cir. 2016) (recognizing that suspect might
not feel free to leave or terminate interrogation conducted in his or her
own home, but nonetheless not all in-home interrogations are custodial for
purposes of Miranda); see also Maryland v. Schatzer, supra, 559 U.S. 113–14
(same for interrogation of prison inmate); Berkemer v. McCarty, supra, 468
U.S. 437 (same for interrogation during traffic stop).
4
Ironically, it is the majority that collapses the custody inquiry and that
fails to attend to the second part of the two part analysis prescribed by
Howes. In lieu of asking whether the circumstances surrounding the interro-
gation present the same inherently coercive pressures as the type of station
house questioning at issue in Miranda, the majority skips that inquiry and
substitutes a different one. The substitute, which is repeated with talismanic
reverence dozens of times by the majority, disregards the coercive pressures
prong and focuses solely on whether the defendant was subjected to restraint
to a degree associated with a formal arrest. The majority’s analytical shortcut
results in a tautology by asking the ultimate question first. A reviewing court
cannot determine whether the restraint on a suspect’s freedom of movement
rose to the level of a formal arrest without first asking whether the pressures
brought to bear on a suspect were the same type of coercive pressures
against which Miranda was designed to protect. Stated simply, the ‘‘restraint
to a degree associated with a formal arrest’’ inquiry is the end product of
the two part analysis, not the predicate question. To determine whether a
suspect was restrained to the degree associated with a formal arrest, a
reviewing court must ask whether the totality of the circumstances (physical
and psychological) would combine (1) to lead a reasonable person in those
circumstances to believe that he was not free to leave or terminate the
interrogation, and (2) to give rise to the same type of inherently coercive
pressures as the station house questioning at issue in Miranda.
5
The majority denies applying the Mangual factors in a ‘‘mechanical’’
fashion; footnote 14 of the majority opinion; but I find that the majority’s
rote recitation of each Mangual factor, followed by a conclusion as to
whether that individual factor is ‘‘the functional equivalent of a formal
arrest,’’ obscures and frustrates the goal of determining whether these fac-
tors—in their totality—combine ‘‘to present a serious danger of coercion’’ for
purposes of Miranda. (Internal quotation marks omitted.) State v. Mangual,
supra, 311 Conn. 193. Although some of the Mangual factors standing alone
may be insufficient to establish that a suspect was in custody, it is important
to remember that the factors are not exclusive, none of the factors stands
in isolation, and the essential issue remains a wholistic assessment of the
nature and degree of coercive pressure that a reasonable person would have
felt under the circumstances.
Numerous courts and commentators have cautioned against the dangers
that attend the mechanical application of multifactor tests. ‘‘Although
multifactor tests are ubiquitous, they are imperfect. . . . When judges
excessively rely on multifactor tests . . . there is a risk of mechanical
jurisprudence,’’ which ‘‘may unduly restrict judges from tailoring their analy-
sis to the case.’’ C. Guthrie et al., ‘‘Blinking on the Bench: How Judges
Decide Cases,’’ 93 Cornell L. Rev. 1, 41 (2007); see, e.g., Daniels v. Essex
Group, Inc., 937 F.2d 1264, 1271 (7th Cir. 1991) (observing that Seventh
Circuit has declined to adopt multifactor test in Title VII sexual harassment
cases because of ‘‘the potential for a mechanical application that overlooks
or underemphasizes the most important features of the harassment inquiry’’).
6
LaMaine admitted at the suppression hearing that he did not, in fact,
have probable cause to obtain a warrant for the defendant’s arrest at the
time of the first interrogation. True or false, the threats of arrest plainly were
intended to have a coercive effect on the defendant’s choice to terminate the
interview. See, e.g., United States v. LeBrun, supra, 363 F.3d 721 (deceptive
interrogation tactics are relevant to custody analysis if ‘‘a reasonable person
would perceive the coercion as restricting his or her freedom to depart’’);
see also Berkemer v. McCarty, supra, 468 U.S. 442 (‘‘the only relevant inquiry
is how a reasonable man in the suspect’s position would have understood
his situation’’).
7
The majority states that the defendant failed to fulfill his burden of
establishing that he was in custody, in part because there is no evidence
in the record that ‘‘there were any limitations placed on [the defendant’s]
ability to leave the secured areas of the building or the building itself.’’ The
assertion is arguable but very weak. The undisputed evidence in the record
established that the area of the building in which the interrogation took place
was locked, secured, and required an escort. At the end of the interrogation,
moreover, LaMaine can be heard asking ‘‘if Pete’s there,’’ presumably refer-
ring to whether Peter Bunosso, the Chief Probation Officer, could escort
the defendant out of the secured area of the building. I am unaware of
anything in the record that would support a contrary factual determination.
Arguably, in the absence of a specific finding by the trial court on this issue,
the record does not permit us to conclude with certainty that, although
the defendant clearly was required to be escorted to his meeting, he was
not required to be escorted out of the building after his meeting ended. See,
e.g., Small v. Commissioner of Correction, 286 Conn. 707, 716, 946 A.2d
1203 (‘‘[w]hen the record on appeal is devoid of factual findings . . . it is
improper for an appellate court to make its own factual findings’’), cert.
denied sub nom. Small v. Lantz, 555 U.S. 975, 129 S. Ct. 481, 172 L. Ed. 2d
336 (2008). But, based on the undisputed facts regarding the extent of
security in the building, specifically, the requirement of an escort from the
entrance of the building to the defendant’s meeting with Calixte and the
fact that Calixte escorted the defendant to Bunosso’s office, a reasonable
person in the defendant’s position would have believed that he could not
leave without assistance.
8
As a separate matter, I have serious concerns about the role that the
Office of Adult Probation played in the interrogation of the defendant.
Probation officers act under the auspices of the Judicial Branch in requiring
the defendant to submit to the conditions of probation. See State v. Jacobs,
supra, 229 Conn. 393 (‘‘the probation process operates as an arm of the
judiciary, not of the police or prosecution’’); State v. Fuessenich, 50 Conn.
App. 187, 199, 717 A.2d 801 (1998) (‘‘when a probation officer demands a
probationer’s compliance with a condition of probation, he or she is acting
as a representative of the [J]udicial [B]ranch and not as a police officer’’),
cert. denied, 247 Conn. 956, 723 A.2d 813, cert. denied, 527 U.S. 1004, 119
S. Ct. 2339, 144 L. Ed. 2d 236 (1999). Because probation officers are represen-
tatives of the Judicial Branch, rather than law enforcement, their involve-
ment in actively facilitating police access to probationers, within the proba-
tion office itself, for the purpose of furthering a criminal investigation
threatens to impair the public perception of their neutrality.
9
The majority states that the record is ambiguous ‘‘as to whether Calixte
informed the defendant that he was not required to attend’’ the meeting
and that ‘‘[i]t defies logic, when confronted with an ambiguous record, to
draw the inference favorable to the party who bears the burden of proof.’’
Footnote 13 of the majority opinion. The record may be ambiguous regarding
Calixte’s precise statements to the defendant, but the record is unambiguous
with respect to the conditions surrounding the defendant’s interrogation,
including the fact that the defendant was escorted to a locked and secured
area of the building—where he was not permitted to move about freely and
where he was questioned in a closed room by two armed police officers.
These facts, when considered in combination with the other psychological
factors at play in the probation context, clarify any ambiguity in the record
regarding whether a reasonable person in the defendant’s position would
have believed that he had a real and meaningful choice to attend the meeting
in the office of Calixte’s supervisor.
The majority relies on Minnesota v. Murphy, 465 U.S. 420, 438, 104 S. Ct.
1136, 79 L. Ed. 2d 409 (1984), to conclude that the defendant’s fear of
revocation of his probation was unreasonable ‘‘because ‘the [s]tate could
not constitutionally carry out a threat to revoke probation for the legitimate
exercise of the [f]ifth [a]mendment privilege’ . . . .’’ Footnote 13 of the
majority opinion. Critical to the United States Supreme Court’s holding in
Murphy was the fact that the conditions of probation at issue in that case
did not require the probationer to answer the probation officer’s questions.
See Minnesota v. Murphy, supra, 438. The federal courts of appeals have
recognized that the rule articulated in Murphy is not controlling when a
probationer is required as a condition of probation to comply with a proba-
tion officer’s directives and answer questions truthfully. Under those circum-
stances, it is reasonable for a probationer to believe that the refusal to
answer questions would result in a revocation of probation. See McKathan
v. United States, 969 F.3d 1213, 1228 (11th Cir. 2020) (concluding that
reasonable person on federal supervised release would understand that he
could be punished for his ‘‘refusal to answer his probation officer’s ques-
tions’’ and, therefore, that petitioner’s statements were obtained in violation
of fifth amendment); United States v. Saechao, 418 F.3d 1073, 1078–1079
(9th Cir. 2005) (rejecting government’s claim that ‘‘a probationer is subject
to threat of penalty only when the state explicitly announces that it will
impose a penalty for the invocation of his [f]ifth [a]mendment rights’’ and
concluding that probationer’s statements were involuntary because he ‘‘was
required, as a condition of his probation, to ‘promptly and truthfully answer
all reasonable inquiries’ ’’ ((emphasis in original)). Because the defendant
in the present case was required as a condition of his probation ‘‘to cooperate
with his probation officer[s]’’ and to ‘‘follow their directions,’’ it would have
been objectively reasonable for a person in the defendant’s position to fear
revocation of his probation.
10
The majority dismisses the delay on the basis of State v. Pinder, 250
Conn. 385, 736 A.2d 857 (1999), and State v. Lapointe, 237 Conn. 694, 678
A.2d 942, cert. denied, 519 U.S. 994, 117 S. Ct. 484, 136 L. Ed. 2d 378 (1996),
but the majority’s reliance on these cases is misplaced. See footnote 16 of
the majority opinion. Pinder and Lapointe stand for the proposition that a
defendant’s inculpatory admissions do not transform a noncustodial interro-
gation into a custodial interrogation for purposes of Miranda. The issue in
the present case is not whether the defendant’s inculpatory admissions
transformed a previously noncustodial interrogation into a custodial one;
the issue is whether the interrogation was custodial from the outset and
whether the officers’ advisements that the defendant was free to leave, given
twenty-one minutes after the commencement of the interrogation and after
eliciting inculpatory admissions from the defendant, would have led a reason-
able person in the defendant’s position to believe that he was not in custody.
The majority has cited no authority for its conclusion that such advisements
have a ‘‘powerful effect’’ despite their significant delay, and I have found
no authority to support that counterintuitive supposition. Permitting free
to leave advisements to have a nunc pro tunc powerful effect would allow
interrogating officers to inoculate themselves against the administration of
Miranda warnings simply by waiting until after a suspect has made damaging
admissions to inform him that he is free to leave.
11
Even unqualified free to leave advisements must be assessed in light
of the surrounding circumstances and are ineffective if those circumstances
would lead a reasonable person to believe otherwise. See, e.g., State v.
Mangual, supra, 311 Conn. 204 n.16 (‘‘advising the suspect that he was not
under arrest and was free to leave was insufficient to support a conclusion
that he was not in custody for purposes of Miranda’’); see also United
States v. Hashime, 734 F.3d 278, 284 (4th Cir. 2013) (‘‘[E]ven to the extent
that law enforcement told [the defendant] that he did not have to answer
questions and was free to leave, that by itself does not make the interrogation
[noncustodial]. Although a statement that the individual being interrogated
is free to leave may be highly probative of whether, in the totality of the
circumstances, a reasonable person would have reason to believe he was
in custody, such a statement is not talismanic or sufficient in and of itself
to show a lack of custody.’’ (Internal quotation marks omitted.)); United
States v. Craighead, 539 F.3d 1073, 1088 (9th Cir. 2008) (‘‘The mere recitation
of the statement that the suspect is free to leave or terminate the interview
. . . does not render an interrogation [noncustodial] per se. We must con-
sider the delivery of these statements within the context of the scene as
a whole.’’).
12
As I stated previously in this opinion, LaMaine admitted at the suppres-
sion hearing that he did not, in fact, have probable cause to arrest the
defendant at the time he threatened to obtain an arrest warrant during the
first interrogation. See footnote 6 of this opinion. Again, whether the threat
was true or a ploy does not make a difference in the present analysis, in
the sense that the issue is whether the defendant would have reasonably
perceived the threat to be true. See id. Nonetheless, I cannot disregard
entirely the fact that LaMaine himself manifestly believed that it was neces-
sary to exert psychological pressure on the defendant to persuade him to
remain in the room and talk, by communicating to the defendant false
information about the strength of the evidence and his vulnerability to arrest.
The point is not that the information was false but that the interrogating
officer, by making it a theme of the interrogation, evidently found it necessary
to influence the defendant’s decision making.
13
The state also argues that the admission of the defendant’s statements
during the first interrogation ‘‘was harmless because the defendant’s state-
ments during [that interrogation] did not amount to a confession.’’ The
exclusionary rule, of course, is not limited to outright confessions of guilt.
See Miranda v. Arizona, supra, 384 U.S. 476 (‘‘The warnings required and
the waiver necessary in accordance with [Miranda] are, in the absence of
a fully effective equivalent, prerequisites to the admissibility of any statement
made by a defendant. No distinction can be drawn between statements
[that] are direct confessions and statements [that] amount to ‘admissions’
of part or all of an offense. The privilege against self-incrimination protects
the individual from being compelled to incriminate himself in any manner;
it does not distinguish degrees of incrimination.’’). The present case illus-
trates the harmful effects that can result from incriminating statements
short of a full confession. The state’s case against the defendant was not
strong—there were no eyewitnesses to the victim’s murder or any physical
or forensic evidence implicating the defendant in the crime. In my view,
the defendant’s admission that he had had a heated argument with the
victim, drove to meet the victim, and was present when the victim was shot
and killed likely had a profound impact on the jury and contributed to its
guilty verdict. Under these circumstances, the admission of the defendant’s
statements cannot be deemed harmless beyond a reasonable doubt. See,
e.g., State v. Mangual, supra, 311 Conn. 214 (state bears burden of proving
that violation of defendant’s Miranda rights was harmless beyond reason-
able doubt, and erroneous admission of statements procured in violation
of Miranda is not harmless if it ‘‘may have had a tendency to influence the
judgment of the jury’’ (internal quotation marks omitted)).