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

against self-incrimination. The trial court agreed with the defendant that he was
in custody when he made the incriminating statements.
The supreme court now holds that the defendant was not in custody for
Miranda purposes. Applying the factors from People v. Matheny, 46 P.3d 453,
465–66 (Colo. 2002), the court concludes that, under the totality of the
circumstances, a reasonable person in the defendant’s position would not believe
their freedom of movement was restricted to the degree associated with a formal
arrest. Thus, the court reverses and remands.
2
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2023 CO 10Supreme Court Case No. 22SA254
Interlocutory Appeal from the District Court
Boulder County District Court Case No. 21CR1741
Honorable Dea M. Lindsey, Judge
________________________________________________________________________
Plaintiff-Appellant:
The People of the State of Colorado,
v.
Defendant-Appellee:
Brent A. Willoughby.
________________________________________________________________________
Order Reversed
en banc
March 6, 2023
________________________________________________________________________
Attorneys for Plaintiff-Appellant:
Michael T. Dougherty, District Attorney, Twentieth Judicial District
Ryan P. Day, Senior Deputy District Attorney
Boulder, Colorado
Attorneys for Defendant-Appellee:
Megan A. Ring, Public Defender
Emily S. Briggs, Deputy Public Defender
Boulder, Colorado
CHIEF JUSTICE BOATRIGHT delivered the Opinion of the Court, in which
JUSTICE HOOD, JUSTICE HART, and JUSTICE SAMOUR joined.
JUSTICE BERKENKOTTER, joined by JUSTICE MÁRQUEZ and JUSTICE
GABRIEL, dissented.
2
CHIEF JUSTICE BOATRIGHT delivered the Opinion of the Court.
¶1 Police officers interrogated Brent A. Willoughby at his home about domestic
violence allegations. After the People charged Willoughby with several offenses,
he moved to suppress the statements he made during this interrogation, arguing
that the officers obtained them in violation of Miranda v. Arizona, 384 U.S. 436, 444
(1966). The trial court granted the motion, finding that Willoughby had been
subjected to a custodial interrogation without first receiving Miranda warnings.
¶2 The People filed this interlocutory appeal, challenging the trial court’s
suppression order. We hold that Willoughby was not in custody for Miranda
purposes when he made the statements at issue. Therefore, we reverse the portion
of the trial court’s order suppressing the statements and remand the case for
further proceedings consistent with this opinion.
I. Facts and Procedural History
¶3 Four Longmont police officers arrived at Willoughby’s apartment around
6:15 p.m., during daylight hours, in uniform and carrying their service weapons.1
1 We derive the following observations from our review of one officer’s body
camera footage, which shows the officers arriving at the scene, their exchanges
with Willoughby, and his eventual arrest. See People v. Kutlak, 2016 CO 1, ¶ 13,
364 P.3d 199, 203 (noting that where there is an audio-visual record and there are
no disputed facts outside the recording controlling the issue of suppression, this
court sits in a similar position as the trial court and therefore may independently
review the recording).
3
The officers were following up on a report that Willoughby’s girlfriend, K.M.,
made to Officer Chrystie Wheeler. K.M. alleged instances of domestic violence:
that Willoughby had assaulted her; sent her threatening text messages; and
damaged several items of her property, including pieces of artwork.
¶4 Upon the officers’ arrival, Willoughby didn’t answer his door and instead
began speaking to the officers from his second-story balcony while they remained
on the ground below. Officer Wheeler told Willoughby about K.M.’s allegations
and asked follow-up questions about the location of K.M.’s property. About one-
and-a-half minutes into the encounter, Officer Wheeler told Willoughby, “Brent,
you have two choices: You can come downstairs . . . or I get a warrant for your
arrest.” She repeated the same ultimatum about a minute later. Willoughby
denied K.M.’s allegations and remained on his balcony.
¶5 Willoughby then spoke to Officer Cooper Arvisais about his relationship
with K.M., claiming that she was addicted to alcohol and drugs.2 Officer Arvisais
maintained a calm tone throughout this conversation, telling Willoughby, “I get
2 We note that Willoughby constantly talked throughout this interaction,
continually stating his version of the events and denying the officers’ allegations.
It is difficult to succinctly describe these statements because it was not a
conversation but rather a narrative, with Willoughby consistently interrupting
Officer Arvisais.
4
that, man”; “I think we’ve all been there a little bit”; and “it sounds like you have
a pretty tough relationship.”
¶6 About fifteen minutes into the encounter, while Willoughby remained out
of the officers’ reach on his second-story balcony, Officer Arvisais said, “Brent, at
this time you are under arrest for criminal mischief and domestic violence.”
Willoughby told the officers, “You can go get a warrant and come back.” Officer
Arvisais immediately reiterated, “So at this time you are under arrest, and we are
going to apply for the warrant.” Upon hearing this, Willoughby became emotional
and repeatedly asked Officer Arvisais, “What did I do?” Officer Arvisais repeated
the allegations and, for a third time, stated that Willoughby was under arrest: “We
are going to take you to jail. You’re under arrest.”
¶7 Willoughby then claimed that the property K.M. alleged he had destroyed
actually belonged to him. Willoughby offered to show Officer Arvisais his art
equipment to prove ownership of the property. Officer Arvisais asked
Willoughby, “Are you willing to let me come in and look at it?” Then the following
exchange took place:
Willoughby: If I let you in—okay, let’s talk.
Officer Arvisais: Sure, we can talk.
Willoughby: I’ll let you in.
Officer Arvisais: Okay. I appreciate that.
5
Willoughby: Does that mean I’m going to jail? . . .
Officer Arvisais: I’m not gonna lie to you and tell you you’re not
going to jail. . . . If you’re voluntar[ily] willing to
let us go in there and look, and it proves your side
of the story, then it will probably change you going
to jail, but I’m not going to tell you one way or
another.
Willoughby: Okay, let’s do this. Will you come up, yourself?
Officer Arvisais: I will, but I need a partner—
Willoughby: I won’t hurt you, bro. I’m not that type of fella. I
love you guys in blue. . . .
Officer Arvisais: Brent, breathe. You gotta listen to me. Take a
breath, okay. Take a breath. I’m willing to go in
the apartment, but I need my partner to stand at
the door with the doorway open.
¶8 Willoughby then gave Officer Arvisais permission to enter, opening the
door while crying and saying, “Please don’t arrest me, sir.” After letting him in,
Willoughby showed his artwork to Officer Arvisais, and they discussed
Willoughby’s guitar and how he learned to play. Willoughby moved and paced
around the apartment, picking up various objects and showing them to the
officers.
¶9 While inside the apartment, Officer Arvisais’s tone of voice remained calm.
Throughout the encounter, Officer Arvisais remained a few feet from Willoughby
and did not touch him. Officer Arvisais asked Willoughby if he would like a glass
of water to help him calm down and told him to take a breath. When Officer
6
Arvisais noticed that Willoughby was beginning to break down emotionally, he
made efforts to de-escalate the situation by asking Willoughby questions about his
hobbies, like what kind of guitar he owned and what instruments his father
played. Willoughby was visibly upset throughout the interaction and eventually
asked Officer Arvisais if he could sit down. Officer Arvisais responded, “Yeah
man, you’re free to have a seat,” and asked Willoughby for permission to conduct
a protective sweep of the sofa, which he then performed. Officer Arvisais also
asked Willoughby for permission to “check around” and “turn some lights on.”
¶10 After Willoughby sat down, Officer Arvisais asked Willoughby whether
Officer Wheeler could come into the apartment. Willoughby consented, and
Officer Wheeler entered the apartment while the third officer remained at the
door.3 Officer Wheeler began speaking with Willoughby, saying, “[T]ell me about
the shadow box . . . that you broke. You sent [K.M.] a text message. And then you
said ‘your car is next.’ Can you tell me about that?” Willoughby responded,
“[S]ometimes I just try to get her pissed off to where she comes home.”
¶11 While Willoughby and Officer Wheeler spoke, Officer Arvisais continued to
seek Willoughby’s permission to look around the apartment, asking if he could
3 Although four officers initially reported to the scene, it is not clear where the
fourth officer was at this time.
7
look through a garbage bag on the balcony. Willoughby responded, “No, no,
that’s just trash.” Officer Arvisais responded, “Okay,” and didn’t search the bag.
¶12 Still emotional, Willoughby described his concerns about K.M.’s health to
the officers. Officer Wheeler then asked Willoughby again about the text messages
that he allegedly sent to K.M., to which he responded, “I’m gonna smoke my cigar.
I just—I need to smoke my cigar.” Officer Arvisais then told Officer Wheeler to
“just give [Willoughby] a second,” and the officers waited while he smoked his
cigar. About one-and-a-half minutes later—and approximately seven minutes
after Officer Arvisais entered the apartment—the officers formally arrested
Willoughby. The entire interaction, from the officers’ arrival to the arrest, lasted
less than thirty minutes.
¶13 Ultimately, the People charged Willoughby with criminal extortion, second-
degree assault, unlawful sexual contact, third-degree assault (two counts),
harassment, and criminal mischief. Willoughby pleaded not guilty and moved to
suppress the statements he made to the officers while inside his apartment,
arguing that police had subjected him to a custodial interrogation without
providing the required Miranda warnings.
¶14 Following a hearing, the trial court concluded that Willoughby was in
custody when he made the statements to the officers in his apartment. Specifically,
the trial court relied on the following facts:
8
• Officer Arvisais told Willoughby that he was under arrest three times;
• Officer Arvisais spoke with Willoughby about why he was under
arrest;
• Officer Arvisais told Willoughby that he wasn’t going to “lie” to
Willoughby and say he was “not going to jail”; and
• Officer Arvisais told Willoughby that he couldn’t promise that anything
Willoughby showed the officers would keep him from going to jail.
¶15 The trial court further found that once they entered the apartment, the
officers did not make statements to Willoughby that would have terminated
formal custody. The court reasoned that although the officers did not place
Willoughby in physical restraints or prevent him from moving around the
apartment, Willoughby nevertheless “was aware that [another officer] was
standing at his front door, the only known exit to [his] apartment.” The trial court
thus concluded that “a reasonable person would believe that their movement was
restricted and that they [were] unable to leave.” Accordingly, the court granted
Willoughby’s motion to suppress.
¶16 The People then brought this interlocutory appeal.4
4The People certified that this appeal was not taken for purposes of delay and that
Willoughby’s statements to police are a substantial part of the proof of the charges
against him, as required by section 16-12-102(2), C.R.S. (2022), and C.A.R. 4.1(a).
9
II. Analysis
¶17 We begin by describing the appropriate standard of review. We next
discuss the applicable law relating to custody for Miranda purposes. Then, we
apply this law to the facts before us and conclude that Willoughby was not in
custody when he made the statements at issue. Accordingly, we reverse the
portion of the trial court’s order suppressing the statements and remand for
further proceedings consistent with this opinion.
A. Standard of Review
¶18 A trial court’s determination that an individual was in custody for purposes
of Miranda presents a mixed question of law and fact. People v. Padilla, 2021 CO 18,
¶ 14, 482 P.3d 441, 445. We defer to the trial court’s factual findings when there is
competent evidence in the record to support them. People v. Kutlak, 2016 CO 1,
¶ 13, 364 P.3d 199, 203. We review the legal effect of those facts de novo. Id.However, we may also rely upon undisputed facts in the record and
“independently review audio-recorded interrogations.” Padilla, ¶ 14, 482 P.3d at
445.
B. Law Relating to Custody for Miranda Purposes
¶19 The Fifth Amendment to the U.S. Constitution provides that no person
“shall be compelled in any criminal case to be a witness against himself.” U.S.
Const. amend. V. To protect this privilege, officers must provide certain warnings
10
to individuals prior to subjecting them to “custodial interrogation.”5 Miranda,
384 U.S. at 444; see also Effland v. People, 240 P.3d 868, 873 (Colo. 2010) (“Miranda
protections only apply when a suspect is subject to both custody and
interrogation.”). Here, the People do not contest that Willoughby was
interrogated, so we address only whether he was in custody.
¶20 To determine whether an individual is in custody for purposes of Miranda,
“the ultimate inquiry is simply whether there is a ‘formal arrest or restraint on
freedom of movement’ of the degree associated with a formal arrest.” California v.
Beheler, 463 U.S. 1121, 1125 (1983) (quoting Oregon v. Mathiason, 429 U.S. 492, 495
(1977)). This “depends on the objective circumstances of the interrogation, not on
the subjective views harbored by either the interrogating officers or the person
being questioned.”6 Stansbury v. California, 511 U.S. 318, 323 (1994).
5Specifically, officers must advise suspects that they have “a right to remain silent,
that any statement [they do] make may be used as evidence against [them], and
that [they have] a right to the presence of an attorney, either retained or
appointed.” Miranda, 384 U.S. at 444.
6The People argue that the trial court erred when it concluded that “a reasonable
person would believe that their movement was restricted and that they [were]
unable to leave.” Specifically, the People argue that the trial court erred because
this is the standard for whether someone is seized under the Fourth Amendment.
See People v. Shoen, 2017 CO 65, ¶ 10, 395 P.3d 327, 330. We have previously stated
that “[a] trial court errs by applying the ‘free to leave’ standard in evaluating
whether a suspect is in custody under Miranda doctrine.” People v. Begay, 2014 CO
11¶21 Accordingly, courts must look to the totality of the circumstances to
determine whether an individual was in custody. Mumford v. People, 2012 CO 2,
¶ 13, 270 P.3d 953, 957. We have provided a list of factors for courts to consider in
making that determination:
(1) the time, place, and purpose of the encounter;
(2) the persons present during the interrogation;
(3) the words spoken by the officer to the defendant;
(4) the officer’s tone of voice and general demeanor;
(5) the length and mood of the interrogation;
(6) whether any limitation of movement or other form of restraint was
placed on the defendant during the interrogation;
(7) the officer’s response to any questions asked by the defendant;
(8) whether directions were given to the defendant during the
interrogation; and
(9) the defendant’s verbal or nonverbal response to such directions.
Id. (quoting People v. Matheny, 46 P.3d 453, 465–66 (Colo. 2002)). Although courts
may consider any number of these factors, they are not exhaustive, and no single
factor is determinative. People v. Garcia, 2017 CO 106, ¶ 20, 409 P.3d 312, 317.
41, ¶ 16, 325 P.3d 1026, 1030. Thus, the trial court applied the wrong legal standard
and, in doing so, erred.
12
Additionally, it is irrelevant whether the individual is “actually arrested at the
close of the interview.” Matheny, 46 P.3d at 468 n.10.
C. Application
¶22 With these principles in mind, we now consider whether Willoughby was
in custody for Miranda purposes. We analyze the nonexhaustive Matheny factors
in turn and conclude that Willoughby was not in custody when he made the
statements at issue.
1. Time, Place, and Purpose of the Encounter
¶23 The officers arrived at Willoughby’s apartment in the early evening, when
it was still daylight. Cf. People v. Davis, 2019 CO 84, ¶ 25, 449 P.3d 732, 739 (noting
that officers waking the defendant and rousing him from bed to question him
weighed in favor of custody); see also People v. Cline, 2019 CO 33, ¶ 22, 439 P.3d
1232, 1238 (noting that an encounter that occurs during daylight weighs against
custody and an encounter that takes place at night weighs in favor of custody).
¶24 The interrogation took place in Willoughby’s apartment. When the
encounter takes place at the individual’s home or a place that is familiar to the
individual, that weighs against a finding of custody. Garcia, ¶ 21, 409 P.3d at 317;
see also People v. Cowart, 244 P.3d 1199, 1204 (Colo. 2010) (noting that because “the
interview took place in a neutral location of [the defendant’s] choice—his living
room,” the questioning was inherently less coercive than questioning in a police-
13
dominated setting); Cline, ¶ 21, 439 P.3d at 1238 (“The location of the interaction is
significant.”).
¶25 The purpose of the encounter was to investigate an allegation of domestic
violence. When the purpose of the encounter is to elicit information from the
suspect of a criminal investigation, that weighs in favor of custody. Compare
Effland, 240 P.3d at 875 (concluding that the purpose of the encounter—to elicit
information from the defendant about an ongoing investigation “for use in a
criminal investigation” against the defendant—weighed in favor of custody), with
Garcia, ¶ 27, 409 P.3d at 318 (concluding that the purpose of the encounter—a
welfare check on a child—weighed against custody).
2. Persons Present During the Interrogation
¶26 Willoughby was alone with the officers during the interrogation. The fact
that a defendant does not have a “representative or neutral party present” during
an interrogation weighs in favor of custody. See Padilla, ¶ 23, 482 P.3d at 447.
¶27 Additionally, there were four officers at the apartment building, with two
officers inside Willoughby’s apartment. One officer stood outside the door,
blocking the only known exit, and Willoughby knew of the officer’s presence. See
Effland, 240 P.3d at 875 (noting that an officer “was stationed outside of [the
defendant’s] hospital room” and the defendant “knew of the officer’s presence,”
which weighed in favor of custody). However, the door remained open until
14
Willoughby’s formal arrest. Cf. id. (concluding that “the investigating officers
clos[ing] the door during the interrogation” weighed in favor of a custody
finding).
3. Words Spoken by the Officer to Willoughby
¶28 Officer Arvisais told Willoughby that he was under arrest three times. That
is significant. Courts place great weight on whether police tell a suspect that they
are under arrest. Compare People v. Begay, 2014 CO 41, ¶ 27, 325 P.3d 1026, 1032
(noting that the fact the defendant “was not told that he was under arrest”
weighed against custody), with Young v. Commonwealth, 706 S.E.2d 53, 55 n.3
(Va. Ct. App. 2011) (“Though inconclusive by itself, the statement ‘you are under
arrest’ nonetheless constitutes evidence of ‘an intent on the part of the arresting
officer to take the person into custody and a corresponding understanding by the
person arrested that he is in custody.’” (quoting State v. Rocheleau, 378 A.2d 1381,
1383 (N.H. 1977))); see also United States v. Savage, No. 07-550-06, 2012 WL 5881852,
at *4 (E.D. Pa. Nov. 20, 2012) (“Being advised that you are under arrest is perhaps
the most significant factor in determining that a suspect is in custody.”).
¶29 This one factor, however, is not dispositive. See Garcia, ¶ 20, 409 P.3d at 317(“No single factor is determinative.”). It must also be noted that when Officer
Arvisais told Willoughby that he was under arrest, the officers were standing
outside his apartment while Willoughby remained on his second-story balcony,
15
meaning they could not physically control Willoughby or effect an arrest. See
2 Wayne R. LaFave et al., Criminal Procedure § 6.6(f), at 833 (4th ed. 2015) (“A Court
is not likely to find custody for Miranda purposes if the police were not even in a
position to physically seize the suspect . . . .”); see also People v. Mayfield, 928 P.2d
485, 521 (Cal. 1997) (“[E]very court that has faced [this issue] has decided that
telephone conversations between police negotiators and an armed suspect who
has taken refuge in a building that is surrounded by law enforcement officers do not
constitute custodial interrogation for purposes of the Miranda rule.” (emphasis
added)), abrogated on other grounds by People v. Scott, 349 P.3d 1028, 1048 (Cal. 2015).
¶30 Likely recognizing that the officers could not reach him on his balcony,
Willoughby said, “You can go get a warrant and come back.” Thus, Willoughby
did not surrender to the officers but instead challenged their authority. Under
these circumstances, Officer Arvisais’s statement that Willoughby was under
arrest did not actually place him under arrest. Cf. People v. Hankins, 201 P.3d 1215,
1217, 1219 (Colo. 2009) (holding that individual who gave statement while sitting
in police vehicle, after showing officers where he hid the body of his murder
victim, was not in custody because an individual’s “expectation, apprehension, or
knowledge of inevitable arrest are not the Miranda triggers; custody is”).
¶31 Additionally, once the officers actually talked with Willoughby, they asked
open-ended questions, and Willoughby responded in narrative form, often
16
revealing much more information than the officers’ questions sought to elicit. See
People v. Sampson, 2017 CO 100, ¶ 26, 404 P.3d 273, 278 (concluding that the officer
asking open-ended questions and the individual responding in narrative form
weighed against a finding of custody).
4. Officer’s Tone of Voice and General Demeanor
¶32 The officers maintained a light, conversational tone and a calm demeanor
throughout the encounter. When the interrogation is in a “conversational tone,”
it is less likely to be custodial. Davis, ¶¶ 33–34, 449 P.3d at 741. Throughout the
encounter, Officer Arvisais empathized with Willoughby about his relationship
troubles, saying things like “I think we’ve all been there a little bit” and “it sounds
like you have a pretty tough relationship.”
5. Length and Mood of the Interrogation
¶33 The interrogation lasted for less than thirty minutes. A lengthy
interrogation may indicate custody. Compare Cline, ¶ 31, 439 P.3d at 1239(encounter lasting ninety minutes weighed in favor of custody), with Begay, ¶ 27,
325 P.3d at 1032 (encounter lasting less than twenty minutes weighed against
custody). And for most of the interrogation, the officers were outside the
apartment, speaking to Willoughby from the ground while he was on his second-
story balcony; they were inside his apartment for less than ten minutes.
17
¶34 While the officers were armed, they neither drew their weapons nor made
any show of force toward Willoughby. See Cline, ¶ 27, 439 P.3d at 1238 (holding
that the defendant was not in custody, in part, because “[t]here was no show of
force by anyone”).
¶35 Additionally, Willoughby was visibly distraught throughout the encounter,
oftentimes appearing to cry. See Effland, 240 P.3d at 875 (citing the defendant’s
emotional distress throughout the interrogation as a factor in favor of custody). In
response, Officer Arvisais repeatedly calmed Willoughby by talking to him about
his guitar and the types of music he plays, and by asking whether he wanted a
glass of water or needed to “take a breath.” At no point did the interrogation
become confrontational. People v. Klinck, 259 P.3d 489, 494 (Colo. 2011) (concluding
that officers asking nonconfrontational questions weighed against custody).
6. Limitation of Movement or Other Forms of Restraint
¶36 The officers did not impose any limitation on Willoughby’s movement
during the interrogation. The officers neither handcuffed Willoughby nor patted
him down. When an officer imposes a limitation on a suspect’s movement during
the interrogation, that weighs in favor of custody. See People v. Clark, 2020 CO 36,
¶ 33, 500 P.3d 356, 362 (noting that this court has “relied on the absence of
handcuffs or other restraints as suggesting that the suspect was not in custody”).
Moreover, Willoughby moved and paced around the apartment, picking up
18
various objects and showing them to the officers. When Willoughby asked the
officers if he could sit down, Officer Arvisais said, “Yeah man, you’re free to have
a seat.” Indeed, the officers imposed so little limitation on Willoughby’s
movement that he smoked a cigar during the encounter, stating “I’m gonna smoke
my cigar. I just—I need to smoke my cigar.” While no factor is dispositive, this is
significant. No one who had their freedom of movement restrained to the degree
associated with a formal arrest would reasonably feel like they could smoke a
cigar, let alone without asking for permission.
7. The Officer’s Response to Willoughby’s Questions
¶37 Officer Arvisais responded to Willoughby’s questions about whether the
officers would still arrest him if he let them inside in a way that suggested
Willoughby’s arrest wasn’t inevitable. See Mumford, ¶ 13, 270 P.3d at 957 (listing
the officer’s response to questions asked by the defendant as a factor in
determining custody (quoting Matheny, 46 P.3d at 465–66)). When Willoughby
asked the officers whether letting them inside meant that he wouldn’t go to jail,
Officer Arvisais responded: “[I]f you’re voluntar[ily] willing to let us go in there
and look, and it proves your side of the story, then it will probably change you
going to jail, but I’m not going to tell you one way or another.” Officer Arvisais’s
response implied that if Willoughby could provide exculpatory evidence, the
officers would likely not arrest him. Therefore, Officer Arvisais made it clear that
19
it was not a foregone conclusion that Willoughby would be arrested at the end of
the encounter.
8. Directions Given to Willoughby
¶38 The officers did not give Willoughby any directions. When officers give the
suspect directions, that weighs in favor of custody. See Garcia, ¶ 28, 409 P.3d at
318. Here, quite the opposite occurred, as the officers asked Willoughby for
permission and direction throughout the encounter. For example, during the
interrogation, Officer Arvisais asked Willoughby for permission to look through a
garbage bag on his balcony, and when Willoughby told him no, Officer Arvisais
simply responded, “Okay.” Moreover, Officer Arvisais ensured that he had
Willoughby’s permission to “check around” and “turn some lights on,” asked if
Officer Wheeler could come inside, and sought Willoughby’s consent to perform
a protective sweep of the sofa. Rather than directing Willoughby, the officers took
direction from him, respecting his wishes when Willoughby withheld consent.
9. Willoughby’s Response to Directions
¶39 Because the officers did not give Willoughby directions, this factor is not
applicable.
10. Weighing the Matheny Factors
¶40 Considering the totality of the circumstances, there are factors in favor of
custody: (1) the purpose of the encounter was to investigate an allegation of
20
domestic violence; (2) Willoughby was alone with the officers during the
interrogation; (3) there were four officers at Willoughby’s apartment, with two
inside his apartment; (4) one officer stood at the door, blocking the only known
exit; (5) Officer Arvisais told Willoughby that he was under arrest three times; and
(6) Willoughby was visibly distraught throughout the encounter.
¶41 We conclude, however, that the factors against custody outweigh the factors
in favor of custody. Specifically, (1) the officers arrived in the early evening, when
it was still daylight; (2) the encounter took place in Willoughby’s living room;
(3) the officers asked open-ended questions, and Willoughby responded in
narrative form; (4) the officers used a conversational, calm tone of voice and
empathized with Willoughby; (5) the interrogation lasted less than thirty minutes;
(6) the officers neither drew their weapons nor made a show of force; (7) the
officers did not restrict Willoughby’s movement and instead let him move freely
around the apartment and—significantly—smoke his cigar; (8) Officer Arvisais
told Willoughby that if he could “prove[] [his] side of the story,” he would likely
not go to jail; and (9) the officers did not give Willoughby directions.
¶42 Clearly, the Matheny factors are weighed differently depending on the
circumstances. It’s not as simple as counting factors. But courts should not rely
on one factor or the absence of one factor to dictate the result of a case. Doing so
would render that one factor determinative. Thus, when considering the totality
21
of the circumstances—as we must—the factors weighing against custody
outweigh the factors in favor of custody.
¶43 To further support our conclusion, we turn to a relatively similar custody
question in Davis, ¶ 24, 449 P.3d at 739, which we find instructive here. In that
case, officers arrived at Davis’s home at 6 a.m. Id. at ¶ 2, 449 P.3d at 735. Because
Davis was still asleep, one of the officers entered his bedroom and shook him
awake. Id. at ¶ 4, 449 P.3d at 735. The officer then instructed Davis to get up and
asked him to move to another room. Id. at ¶ 5, 449 P.3d at 736. At one point, Davis
asked the officers for permission to use the restroom, which the officers initially
denied. Id. at ¶ 11, 449 P.3d at 737. The officers also initially prevented Davis from
retrieving his glasses from his bedroom. Id. at ¶ 5, 449 P.3d at 736. The encounter
lasted nearly ninety minutes. Id. at ¶¶ 2, 11, 449 P.3d at 735, 737.
¶44 This court recognized that four factors indicated that Davis may have been
in custody: (1) the encounter lasted nearly ninety minutes; (2) one of the officers
stood between Davis and the exit; (3) the officers physically “roused” Davis from
bed and questioned him; and (4) the officers isolated Davis from other members
of his family. Id. at ¶ 25, 449 P.3d at 739. We concluded, however, that Davis was
not in custody primarily because of three factors: (1) the “neutral location” of the
interrogation; (2) the “lack of force or physical restraint”; and (3) the
“conversational tone of questioning.” Id. at ¶ 26, 449 P.3d at 740.
22
¶45 Davis informs our conclusion that Willoughby was not in custody when he
made the statements at issue here. Some factors that weighed in favor of custody
in Davis are similar to Willoughby’s interrogation (e.g., the officers stood by the
door and isolated the suspect in each case). And a significant factor here that
weighs in favor of Willoughby’s custody was not present in Davis (namely, the
officers telling Willoughby three times that he was under arrest). However, some
factors that weighed in favor of custody in Davis are also inapplicable here (e.g.,
the officers roused Davis from bed at 6 a.m. and interrogated him for ninety
minutes, but here, the officers didn’t touch Willoughby and interrogated him for
less than thirty minutes).
¶46 Most importantly, the three factors in Davis that we found persuasive as
weighing against custody are also present here. First, Willoughby was
interrogated in his living room—a neutral location. Second, the officers used
neither force nor physical restraints on Willoughby; indeed, no officer touched
Willoughby until his formal arrest, and he was free to move around and smoke a
cigar. Finally, the officers used a conversational tone throughout the interrogation:
Officer Arvisais talked to Willoughby about his hobbies and his relationship with
K.M., and he tried to empathize with Willoughby when possible. Thus, like in
Davis, the factors weighing against a finding of custody here outweigh the factors
in favor of custody.
23
¶47 Therefore, considering the totality of the circumstances, Willoughby’s
freedom of movement wasn’t restricted to the degree associated with a formal
arrest. Thus, he was not in custody at the time of the interrogation.
III. Conclusion
¶48 Accordingly, the trial court erred in suppressing Willoughby’s statements
under Miranda. We thus reverse that portion of the trial court’s order and remand
this case for further proceedings consistent with this opinion.
JUSTICE BERKENKOTTER, joined by JUSTICE MÁRQUEZ and JUSTICE
GABRIEL, dissented.
24
JUSTICE BERKENKOTTER, joined by JUSTICE MÁRQUEZ and JUSTICE
GABRIEL, dissenting.
¶49 The police told Willoughby at least four times that he was under arrest. One
of the officers also explained that, because he had committed a domestic-violence
offense, the officers had to arrest him and, further, that the officers could be liable
if they did not take him to jail. When Willoughby point-blank asked if he was
under arrest, the answer was “yes.” And, notably, throughout the encounter, three
police officers blocked the only known exit from his home, to ensure he did not
leave.
¶50 The majority nonetheless concludes that Willoughby was not in custody
when the officers interrogated him and thus the trial court erred when it
suppressed the unwarned statements that Willoughby made to the police. Maj.
op. ¶ 2. I disagree. Caselaw directs that when an officer tells a suspect that they
are under arrest, courts are to give that statement great weight in determining
whether a reasonable person would think that their freedom had been restricted
to the degree associated with formal arrest. Applying that direction, I conclude
that the words spoken by the officers to Willoughby, under these particular
circumstances, would cause a reasonable person gauging their degree of freedom
to conclude that the officers meant what they said: that they were under arrest.
1
And because I conclude that Willoughby was in custody at the time he was
interrogated, I respectfully dissent.
¶51 I begin by reviewing the facts of the case based on the record before the trial
court. Then, I explain why the majority’s conclusion that Willoughby was not in
custody for purposes of the Fifth Amendment misses the mark.
I. Factual Background
¶52 On October 19, 2021, four police officers—Officer Wheeler, Officer Arvisais,
Officer McNulty, and Officer Holladay—went to Willoughby’s home to arrest him
in connection with allegations that he had assaulted his girlfriend and damaged
her property.1 When the officers arrived, Officer Wheeler, the lead investigator,
and Officer Arvisais went upstairs and knocked on the front door of Willoughby’s
second-floor apartment. From outside the door, they announced they wanted to
talk with him, adding that he had committed a crime and that they wanted him to
come downstairs.
1Section 18-6-803.6(1), C.R.S. (2022), prescribes, “When a peace officer determines
that there is probable cause to believe that a crime or offense involving domestic
violence . . . has been committed, the officer shall, without undue delay, arrest the
person suspected of its commission.” (Emphasis added.) See Spalsbury v. Sisson,
250 F.App’x 238, 246 (10th Cir. 2007) (“Colorado’s domestic violence statute
requires an officer to make an arrest when he has probable cause to believe that a
crime involving domestic violence has occurred.”).
2
¶53 Instead of answering the door, Willoughby went out to his balcony, which
faced the apartment’s parking lot, and started talking to Officer McNulty, who was
standing on the sidewalk in front of the apartment. Because Willoughby would
not come to the front door, Officer Wheeler descended to the sidewalk to direct
the conversation. Officer Wheeler asked Willoughby about sending threatening
text messages to his girlfriend, cutting up her driver’s license, and destroying her
framed artwork. Then Officer Wheeler informed Willoughby that destroying
property is a crime—which, in his case, was a domestic-violence offense—and that
he needed to come downstairs so she could arrest him. Elaborating, she told him
that, because this was a domestic-violence offense, he had two choices: he could
come downstairs or they could get a warrant for his arrest.
¶54 Willoughby was having none of it. He refused to leave his apartment and
told Officer Wheeler that she needed to get a warrant. Willoughby was becoming
increasingly upset and visibly agitated.
¶55 Officer Arvisais, who by then had joined Officer Wheeler on the sidewalk,
also began talking with Willoughby. Officer Holladay replaced Officer Arvisais at
Willoughby’s front door, the only known exit from his home. Officer McNulty
stood at the bottom of the stairs leading from Willoughby’s apartment to the
sidewalk and parking lot. Officer Arvisais and Officer Wheeler then discussed the
fact that they had to arrest Willoughby since he was accused of a crime of domestic
3
violence, which meant they couldn’t just leave the scene. So, they decided that
Officer Wheeler would return to the station to get an arrest warrant and a warrant
to search Willoughby’s home while the other officers remained on scene.
¶56 While Officers Wheeler and Arvisais conferred about the best strategy for
taking Willoughby into physical custody—either coaxing him to a public space or
getting an arrest warrant—Willoughby called his mother. Willoughby told her
that there were four officers at his door, and they were getting a warrant for his
arrest. He told his mother they were going to arrest him three times during their
conversation, which lasted about a minute.
¶57 After Officer Wheeler left, Officer Arvisais continued to talk with
Willoughby from the sidewalk below his balcony. Willoughby continually
interrupted Officer Arvisais, trying to persuade Officer Arvisais not to arrest him.
During their exchange, Officer Arvisais repeatedly told an increasingly agitated
Willoughby that (1) he was “under arrest for domestic violence and criminal
mischief,” (2) the police had “probable cause to arrest him,” and (3) he was “going
to jail.” The dialog between Officer Arvisais and Willoughby included the
following exchange:
Arvisais: We have probable cause; we have text messages
and photos. At this time, you are under arrest for
criminal mischief and domestic violence.
Willoughby: Why do I have to go to jail?
4
Arvisais: Because we can’t walk away from this. . . .
Arvisais: [At] this time you are under arrest, and we are
going to apply for the warrant.
Willoughby: Am I under arrest?
Arvisais: You are.
Willoughby: For what?
Arvisais: For criminal mischief and domestic violence. . . .
Arvisais: We have probable cause for domestic violence and
criminal mischief. . . .
Arvisais: We are going to take you to jail. You are under
arrest. . . .
¶58 Then, Officer Arvisais explained to Willoughby why he had to go to jail: “if
we walk away, we can be held liable if something else happens.” Officer Arvisais
reminded him that it would be getting dark and that he did not want to have to
put bright lights on Willoughby’s apartment, thus embarrassing Willoughby in
front of his neighbors.
¶59 A frantic Willoughby then told Officer Arvisais that he had exculpatory
evidence in his apartment, and that Officer Arvisais could enter his apartment to
see that evidence. Willoughby insisted, however, that no other officers enter his
home.
¶60 As he walked up to Willoughby’s apartment, Officer Arvisais again
informed Willoughby that even with this evidence he was “not going to lie to you
you’re not going to jail.” He also told Willoughby that another officer, Officer
5
Holladay, would have to remain at the open front door for officer safety. Although
Willoughby did not consent to Officer Holladay entering his home, Officer
Holladay nonetheless entered the home and stood fully inside the doorway just
inside the apartment, with his foot holding the door open.
¶61 After Officer Arvisais entered the apartment, he and Willoughby discussed
Willoughby’s art. Willoughby explained that he would not destroy his own
paintings and easel. They also conversed about playing the guitar. Willoughby
asked if he could sit on the couch. Officer Arvisais responded that Willoughby
could sit where he wanted, but before he allowed Willoughby to sit down, Officer
Arvisais searched the general area to ensure that there was “nothing in the
cushions.”
¶62 While Officer Arvisais was in the apartment, Officer McNulty successfully
contacted Officer Wheeler and asked her to return to the scene because
Willoughby had “allowed them inside the apartment.” Upon her return, Officer
Wheeler entered Willoughby’s apartment—with two other officers present—and,
without Mirandizing him, interrogated Willoughby. This fact is undisputed.
¶63 During her questioning, Willoughby became even more distraught; he cried
and smoked with the officers’ permission. Willoughby told Officer Wheeler that
he was worried that he was going to go to jail, but he nonetheless answered her
questions and incriminated himself. Then Officer Arvisais placed Willoughby in
6
“a single wing hold” and Officer Wheeler “tight[ened]” handcuffs around his
wrists thus formally arresting him.
II. Standard of Review
¶64 “A trial court’s determination of whether a suspect was in custody is a
mixed question of law and fact.” People v. Elmarr, 181 P.3d 1157, 1161 (Colo. 2008).
In reviewing the facts, we may look beyond the facts in the trial court’s order and
consider the undisputed facts in the record. People v. Pleshakov, 2013 CO 18, ¶ 16,
298 P.3d 228, 232. Additionally, we review de novo the ultimate legal question of
whether those facts, under the totality of the circumstances, establish that the
suspect was in custody when interrogated. Id.; see also People v. Pittman, 2012 CO
55, ¶ 6, 284 P.3d 59, 61.
III. Analysis
¶65 In my view, the majority is mistaken when it employs our custody
framework in People v. Matheny, 46 P.3d 453 (Colo. 2002), to conclude that
Willoughby was not in custody and that his statements, accordingly, are
admissible.
¶66 I first deconstruct how the majority analytically takes a wrong turn.
7
A. The Majority’s Fifth Amendment Custody Analysis is
Flawed
1. Legal Framework
¶67 The Fifth Amendment protects a suspect’s right against self-incrimination.
See U.S. Const. amends. V, XIV; Colo. Const. art. II, § 18. For the purpose of
Miranda, a suspect is in custody when a reasonable person in the suspect’s position
would believe that their freedom had been restricted to the degree associated with
formal arrest. Berkemer v. McCarty, 468 U.S. 420, 442 (1984). Whether, in a
particular circumstance, the deprivation of a suspect’s freedom is associated with
formal arrest is fact-specific and governed by the totality of the circumstances. See
Matheny, 46 P.3d at 468.
¶68 As the majority notes, we articulated an inexhaustive list of factors in
Matheny for courts to consider in making this assessment:
(1) the time, place, and purpose of the encounter;
(2) the persons present during the interrogation;
(3) the words spoken by the officer to the defendant;
(4) the officer’s tone of voice and general demeanor;
(5) the length and mood of the interrogation;
(6) whether any limitation of movement or other form of restraint was
placed on the defendant during the interrogation;
(7) the officer’s response to any questions asked by the defendant;
(8) whether directions were given to the defendant during the
interrogation; and
8
(9) the defendant’s verbal or nonverbal response to such directions.
Id. at 465–66.
¶69 Importantly, as we have emphasized in our precedent and the majority
acknowledges, no single factor is determinative, and this analysis is highly
fact-specific. Pleshakov, ¶ 20, 298 P.3d at 233.
2. Application
¶70 In my view, the majority fails to give (1) substantial weight to Officer
Arvisais explicitly telling Willoughby he was under arrest four times and (2) any
weight to Officer Arvisais’s numerous additional statements explaining to
Willoughby that he had to go to jail. Instead, it gives far too much weight to less
pertinent factors and weighs all the Matheny factors equally, leading to the wrong
conclusion that Willoughby was not under arrest.
a. Officer Arvisais Repeatedly Told Willoughby He Was
Under Arrest
¶71 While an officer’s uncommunicated subjective intent has no bearing on
whether a suspect is in custody when they are interrogated, the Supreme Court
instructs that “[a]n officer’s knowledge or beliefs may bear upon the custody issue
if they are conveyed, by word or deed, to the individual being questioned.”
Stansbury v. California, 511 U.S. 318, 325 (1994). And when an officer tells a suspect
that they are under arrest, courts give that statement great weight in determining
whether a reasonable person would think that their freedom had been restricted
9
to the degree associated with formal arrest. People v. Thomas, 839 P.2d 1174, 1178
(Colo. 1992) (explaining that when an officer told a suspect that “he was being
detained and, at the very least, would receive a ticket,” a reasonable person in the
suspect’s position would understand that their freedom was curtailed to the
degree of a formal arrest).
¶72 Here, Officer Arvisais explicitly told Willoughby that he was under arrest—
four times—and that he had to go to jail.2 And while the majority acknowledges
that courts place “great weight” on whether police tell a suspect that they are
under arrest, maj. op. ¶ 28, it quickly pivots to emphasize that “[t]his one factor,
however, is not dispositive.” Id. at ¶ 29. To be sure, this is a correct, generalized
statement of the law. It is difficult to discern here, though, why the majority goes
on to treat this factor as if it has no greater weight than any of the other factors in
play. That is, the majority does not give Officer Arvisais’s repeatedly telling
Willoughby that he was under arrest the substantial weight caselaw indicates
those words are due. Instead, it gives it equal weight to every other factor.
2The majority indicates that Officer Arvisais told Willoughby he was under arrest
three times. Maj. op. ¶ 14. This does not include Officer Arvisais saying “yes”
when Willoughby directly asked if he was under arrest. To my mind, this is yet
another way that Officer Arvisais told Willoughby he was under arrest. See supra
at ¶ 57.
10
¶73 This error is then compounded by the majority’s failure to address Officer
Arvisais’s additional statements to Willoughby regarding his arrest. For instance,
Officer Arvisais explained to Willoughby why the police wanted him to come
downstairs and why he had to be arrested: that is, he committed a crime of
domestic violence, a mandatory-arrest crime. The majority doesn’t even mention
that statement, let alone consider the impact it would have on a reasonable person
gauging their breadth of freedom, alone or in tandem with the officer’s other
statements. Officer Arvisais also explained to Willoughby that the police could
not let him go because the officers faced liability if they did not arrest him and
something else happened. The majority again does not even mention that
statement or the effect it would have on a reasonable listener, particularly in
conjunction with the officer telling Willoughby—repeatedly—that he was under
arrest.
¶74 To my way of thinking, a reasonable person who heard Officer Arvisais’s
statements would have no question that their freedom had been restricted to the
degree associated with formal arrest. Viewed from this vantage point,
circumstances like being allowed to smoke, or other subtle, nonverbal, or
contextual clues would do little—very little indeed—to tip the Matheny scales.
Which is all to say that the majority also unreasonably weighs the factors against
custody too heavily.
11
b. The Other Matheny Factors Do Not Outweigh Officer
Arvisais Repeatedly, Explicitly Telling Willoughby that He
Was Under Arrest
i. Time, Place, and Purpose
¶75 First, while the majority posits that the officers came to Willoughby’s home
“to investigate an allegation of domestic violence,” maj. op. ¶ 25, it neglects to
mention that the officers had an additional purpose: to arrest him. This is
because—as Officer Arvisais explained in lay terms to Willoughby—“[w]hen a
peace officer determines that there is probable cause to believe that a crime or
offense involving domestic violence . . . has been committed, the officer shall,
without undue delay, arrest the person suspected of its commission.”
§ 18-6-803.6(1), C.R.S. (2022) (emphasis added).
¶76 As noted, Officer Arvisais not only told Willoughby numerous times that
the officers were there to arrest him and that they had probable cause to do so, he
also specifically told Officer Wheeler that they could not leave the scene since they
had probable cause for a domestic-violence offense.
¶77 Thus, in my view, while the officers may have gone to Willoughby’s home
to investigate, there is no question that the purpose of the encounter was also to
arrest him. This also favors the conclusion that Willoughby was in custody. See
Matheny, 46 P.3d at 465. As previously noted, “[a]n officer’s knowledge or beliefs
may bear upon the custody issue if they are conveyed, by word or deed, to the
12
individual being questioned. Those beliefs are relevant . . . to the extent they
would affect how a reasonable person in the position of the individual being
questioned would gauge the breadth of his or her ‘freedom of action.’” Stansbury,
511 U.S. at 325 (citations omitted) (quoting Berkemer, 468 U.S. at 440); accord
People v. Hughes, 252 P.3d 1118, 1122 (Colo. 2011); see also Matheny, 46 P.3d at 467
(holding that the suspect was not in custody because officers told him he was not
under arrest).
¶78 True, the officers may have said this at first from a distance, but Officer
Arvisais again told Willoughby, as Officer Arvisais entered Willoughby’s
apartment, that he could not tell him that he was not going to jail. And when
Officer Wheeler went to the station to get an arrest warrant because Willoughby
refused to come out of his apartment without one, not one, not two, but three
officers remained at Willoughby’s apartment blocking his egress to ensure that he
could not leave. In my view, the officers made it abundantly clear through both
their words and their actions that their purpose in being there was to take
Willoughby into custody and charge him with a domestic-violence offense based
on his girlfriend’s complaint.
¶79 Because the officers’ statements and actions repeatedly communicated to
Willoughby that he was under arrest, I have no doubt that a reasonable person in
those circumstances would have understood that their freedom was curtailed to
13
the degree associated with formal arrest when Officer Wheeler began her
interrogation.
ii. Persons Present During the Interrogation
¶80 I agree with the majority that this factor weighs in favor of custody. The
number of officers focused on Willoughby and the isolated location of the
interrogation favors the conclusion that he was in custody. Maj. op. ¶ 27. We have
generally held that when a suspect is questioned in public or has access to friends
or family and the majority of officers present are not simultaneously focused on
the suspect, then the suspect is not in custody for purposes of Miranda. See People v.
Garcia, 2017 CO 106, ¶ 31, 409 P.3d 312, 318–19; Pleshakov, ¶ 30, 298 P.3d at 235.
Here, Willoughby was alone in his apartment when Officer Wheeler interrogated
him. And three of the four officers at the scene were focused on him as he made
the incriminating statements. These facts favor custody.
iii. The Officer’s Tone of Voice and General Demeanor,
Length and Mood of the Interrogation, and Limitation of
Movement or Other Form of Restraint
¶81 The majority accurately describes the officers’ tone of voice and general
demeanor as well as the length of the interrogation—factors which do not favor
custody. Maj. op. ¶¶ 32–33. They also consider that Willoughby was “visibly
distraught throughout the encounter, oftentimes appearing to cry,” and appear to
acknowledge that a suspect’s emotional state favors custody. Id. at ¶ 35. But the
14
majority doesn’t appear to give Willoughby’s emotional state any real weight,
instead focusing on Officer Arvisais’s efforts to de-escalate him and viewing that
as a factor that disfavors custody. Id. I acknowledge that an officer’s demeanor is
a relevant factor, but the majority’s approach again appears to distort the weight
of the opposing factors. It places too much weight on Officer Arvisais’s measured
tone and too little on Willoughby’s emotional distress. Effland v. People, 240 P.3d
868, 875 (Colo. 2010) (emotional distress during an interrogation favors that the
suspect is in custody). Willoughby was crying and visibly upset when Officer
Wheeler questioned him, weighing in favor of custody.
¶82 But more significantly, under the unique circumstances of this case, I don’t
see how you can uncouple these factors from what Willoughby had been told
about being under arrest, about having to go to jail, and the positioning of the
officers. A reasonable person under these circumstances would, in my view, be
hard pressed in the face of Officer Arvisais’s words to conclude—simply because
they were allowed to sit on a sofa or smoke—that they could simply get up and
leave or that their formal arrest was not imminent. Would a reasonable person
whose only way out of their home was blocked by an uninvited officer after
repeatedly being told that they were under arrest and had to go to jail—really
believe that they were not deprived of their freedom to the degree associated with
formal arrest? The answer, I suggest, is no.
15
iv. The Officer’s Response to Willoughby’s Questions
¶83 The majority interprets Officer Arvisais’s response to Willoughby’s
questions about whether the officers would still arrest him if he let them inside
(and thus close enough to place him in handcuffs) as suggesting that Willoughby’s
arrest was not inevitable. Maj. op. ¶ 37. What the majority omits is that as he
walked up to Willoughby’s apartment, Officer Arvisais again informed
Willoughby that even with this evidence he was “not going to lie to you that you’re
not going to jail.”
¶84 Thus, I disagree that Officer Arvisais suggested to Willoughby that his arrest
was not inevitable, and I view this factor as also favoring custody.
v. Directions Given to Willoughby
¶85 The majority acknowledges that when officers give a suspect directions, that
weighs in favor of custody. Maj. op. ¶ 38. Then it states that the officers did not
give Willoughby any directions. Id. But that is not so.
¶86 After informing Willoughby that destroying property is a crime—which, in
his case, was a domestic-violence offense—Officer Wheeler told Willoughby that
he needed to come downstairs so she could arrest him. Not long thereafter, the
officers told Willoughby he was under arrest (repeatedly), Officer Arvisais
explained the reasons Willoughby had to go to jail, and he described the officers’
exposure to liability if they did not formally arrest him.
16
¶87 To be sure, Officers Wheeler and Arvisais were standing below
Willoughby’s balcony when Officer Wheeler initially directed Willoughby to come
downstairs so she could arrest him. But between the officers’ actual words—
including Officer Arvisais’s re-emphasizing that Willoughby was going to jail as
he entered his home—and the officers blocking Willoughby’s egress from his
apartment, the message was clear: you are under arrest, and we are just waiting
until we can get close enough to handcuff you to take you to jail. The officers’
directions to Willoughby favor custody.
vi. Willoughby’s Response to Directions
¶88 The majority concludes this factor was inapplicable because the officers did
not give Willoughby any directions. Maj. op. ¶ 39. Again, I disagree for the
reasons explained above. I also conclude that Willoughby’s reaction to the officers’
directions weighs heavily in favor of custody. Willoughby was agitated, escalated,
and often sobbing throughout most of the thirty-minute encounter. He did not
want to be taken to jail and made this point to the officers repeatedly, as he tried
frantically to persuade Officer Arvisais not to take him to jail. Eventually,
Willoughby bargained with the only chip Officer Arvisais seemed interested in:
letting the officer come into his home to get close enough to formally arrest him.
17
c. Weighing the Matheny Factors
¶89 While I agree that no one Matheny factor is dispositive, the majority’s
conclusion seemingly rests on the mistaken belief that Matheny requires a simple
mathematical tally of the number of factors for custody and the number of factors
against to determine if a Miranda advisement is required before interrogation. But
that cannot be. It is axiomatic that under different circumstances the factors
necessarily bear different weights. Here, the majority straight-up tallies the
factors, concluding that the factors against custody win—9 to 6. Maj. op. ¶¶ 40–41.
¶90 And even if I agreed with the majority’s classification of factors as for or
against custody, I would still disagree with its calculus because the numerous
times that the officers told or otherwise indicated to Willoughby that he was under
arrest must be afforded substantial weight. This makes sense because these words
matter. And here, the specific words spoken by these officers, particularly under
these specific circumstances, would cause a reasonable person gauging the
breadth of their freedom of action to conclude that they were in custody.3
¶91 Moreover, as I explained above, I don’t agree with the majority’s analysis or
weighting of the custody factors. In my view, the majority neglects to properly
3Of course, if the police had not repeatedly told Willoughby that he was under
arrest, my assessment of the Matheny factors would be far different, and this case
would have a completely different outcome.
18
consider some factors and similarly fails to give others the appropriate weight that
precedent demands. Here, the factors for custody far outweigh the factors against
custody. The fact that Willoughby was allowed to smoke and the fact that the
officers spoke to him in a conversational tone necessarily carry far less weight in
the totality of the circumstances analysis than does the fact that the officers
repeatedly told Willoughby he was under arrest.
¶92 I also take issue with the majority’s reliance on People v. Davis, 2019 CO 84,
449 P.3d 732, to support its conclusion that Willoughby was not in custody. Maj.
op. ¶¶ 43–46. There, two officers went to Davis’s house at 6 a.m. in response to a
reported sexual assault. Davis, ¶ 2, 449 P.3d at 735. When they arrived, Davis’s
stepmother escorted the officers to Davis’s basement bedroom. Id. at ¶ 3, 449 P.3d
at 735. The officers woke Davis up and took him down a hall to talk. Id. at ¶¶ 4–6,
449 P.3d at 735–36. During the ninety-minute encounter, the police did not draw
their weapons and did not significantly restrict Davis’s movement; in fact, they
accompanied him to look for things in his bedroom twice, and spoke to Davis in a
conversational tone. Id. at ¶¶ 8, 26, 32, 449 P.3d at 736, 740–41. The men also
chatted about the Broncos. Id. at ¶ 8, 449 P.3d at 736. During the conversation,
Davis eventually confessed to sexual contact with the victim but claimed it was
consensual. Id. at ¶ 7, 449 P.3d at 736. After that, one of the officers told Davis that
they did not have probable cause to arrest him, and if they did, they would
19
“obviously” let him know. Id. at ¶ 9, 449 P.3d at 736. The officers then continued
to question to Davis for a total twenty-six minutes before placing him under arrest.
Id. at ¶¶ 9, 11, 449 P.3d at 736.
¶93 Before trial, Davis moved to suppress his statements. Id. at ¶ 12, 449 P.3d at
737. The trial court granted his motion, but we reversed, concluding that under
the totality of the circumstances, Davis was not in custody at the time he made his
unwarned statements. Id. at ¶¶ 14, 37, 449 P.3d at 737, 742. We reasoned that,
despite the prolonged encounter, the totality of the circumstances weighed against
custody because (1) the interrogation took place in a neutral location, (2) Davis
was not physically restrained, and (3) the tone of the questioning was
conversational. Id. at ¶¶ 30–31, 33, 449 P.3d at 740–41.
¶94 While the majority indicates that the facts here are similar—or at least
similar enough—to those in Davis to warrant the same conclusion, I am not
persuaded. Most importantly and most obviously, the police in Davis never told
the suspect they had probable cause to arrest him or that he was under arrest or
that he had to go to jail or that they, the officers, would face personal liability if
they did not formally arrest him. To the contrary, they explicitly told Davis that
they did not have probable cause to arrest him. Id. at ¶ 9, 449 P.3d at 736.
20
IV. Conclusion
¶95 Because Willoughby was in custody when Officer Wheeler interrogated
him, his un-Mirandized statements should be suppressed. For the reasons
explained above, I respectfully dissent.
21