Section 11.17 Question of Custody

• Library: Criminal Practice 2012 Supp

a. (§11.17) Question of Custody

United States v. Griffin, 922 F.2d 1343 (8^th Cir.1990), identified several factors to be considered in determining if a defendant is in custody when interrogated. These factors include an accused’s freedom to leave the location where the inquiry takes place and the purpose, location, and length of the interrogation. Id. at 1348. Griffin concluded, however, that these factors alone are not conclusive. Other indicia of custody include:

(1) whether the suspect was informed at the time of questioning that the questioning was voluntary, that the suspect was free to leave or request the officers to do so, or that the suspect was not considered under arrest; (2) whether the suspect possessed unrestrained freedom of movement during questioning; (3) whether the suspect initiated contact with authorities or voluntarily acquiesced to official requests to respond to questions; (4) whether strong arm tactics or deceptive stratagems were employed during questioning; (5) whether the atmosphere . . . was police dominated; or, (6) whether the suspect was placed under arrest at the termination of the questioning.

Id. at 1349. The Supreme Court of Missouri approved this analysis in State v. Werner, 9 S.W.3d 590 (Mo. banc 2000). Werner noted, however, that “[t]his list is not exhaustive.” Missouri courts look to the surrounding circumstances to determine whether the accused was in custody. State v. Bradley, 670 S.W.2d 123 (Mo. App. E.D. 1984). In State v. Birmingham, 132 S.W.3d 318, 323 (Mo. App. S.D. 2004), the court held that statements made by a defendant to his parole officer while under parole about a new crime were made while the defendant was in custody and required the parole officer to give the defendant his Miranda warnings (Miranda v. Ariz., 384 U.S. 436 (1966)). In State v. Taylor, 109 S.W.3d 190, 192 (Mo. App. E.D. 2003), the court, in applying the Griffin, 922 F.2d 1343, factors, held that the defendant was in custody, even though he was questioned in his vehicle along the side of the road, because suspicion had already focused on the defendant and he was not free to leave the area.

Examples of when a person is found to not be in custody include State v. Kalter, 839 S.W.2d 670 (Mo. App. E.D. 1992), in which the court held that, because the defendant had not been arrested or restrained of his liberty, he was not in custody when he told the police officer, shortly after the officer arrived at his house, that he stabbed someone and the person was in the basement. See also State v. Crane, 841 S.W.2d 271 (Mo. App. W.D. 1992) (court held that the defendant was not in custody when the officer questioned him at the scene of an...