People v. Elmarr

181 P.3d 1157 (2008)

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Nature of the Case

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Facts

Detectives Ferguson and Haugse and Officer Stiles visited D at his home to inform him that his ex-wife was found dead the day before. The detectives were not in uniform, and their weapons were holstered. Officer Stiles was in uniform but was present more as a friend of D's family to aid in the notification of death. Two other police officers -- Captain Epp and Lieutenant Hopper -- later arrived at D's home in another unmarked police car and were seen there by D, but they stayed outside. D disclosed that he had visited with his ex-wife the day before she was found dead, and had taken her for a ride on his motorcycle. Ferguson said the police had more questions for him and asked him if he would mind accompanying them to the Sheriff's Department for further questioning; D agreed. The detectives drove D to the Sheriff's Department in their unmarked police car, with D in the back seat. The detectives did not provide D the option of driving himself to the station. D was not handcuffed. During the drive D volunteered that he had not been entirely truthful in his earlier conversation with the detectives, and provided further information regarding his meeting with his ex-wife the day before she was found dead. The detectives did not say anything while in the car. They arrived through the garage in the basement, which is a secure area not open to the public. They escorted D into an elevator that led to the Sheriff's Department Detective Bureau, which is also not open to the public. Captain Epp testified that it was standard procedure for persons to be patted down before being transported. The trial court found that D was subjected to a pat-down search upon arrival at the Sheriff's Department. D was then placed in a closed interview room measuring seven by ten feet and told to stay there until officers returned. Captain Epp and Lieutenant Hopper interrogated D in that interview room. D was seated against the wall, while Captain Epp and Lieutenant Hopper were seated in front of the door. The officers were dressed casually but were carrying their weapons. D was never handcuffed or otherwise directly physically restrained, but no one ever told D that he was free to leave or that he was not under arrest. Captain Epp began his interrogation by advising Elmarr that he did not have to talk to the police, that he had a right to remain silent, that anything he said that incriminated him would be taken down and that he had a right to an attorney. Captain Epp then asked if D wanted to talk to them then. D answered 'sure,' and then began speaking about the last time he saw his ex-wife. Captain Epp spoke rather slowly and softly but soon began expressing his doubts about D's story. Captain Epp told D, 'I hope you're telling me the truth . . . .' Later he inspected what he thought were scratches on D's arms. Lieutenant Hopper took over much of the questioning, and his tone was more aggressive. He asked D if he ever thought of hurting his ex-wife; why witnesses would say they saw his ex-wife on a motorcycle matching D's near the place where her body was found; and whether his ex-wife was 'all right' the last time he saw her. Lieutenant Hopper asked, 'Were you lying because you were afraid that you would be incriminated more and more?' He followed by stating, 'You need to think about some of these answers pretty hard,' prompting D to respond, 'It seems to me like you guys are trying to say I did it.' Lieutenant Hopper then continued his questioning, telling D that his story was 'just not accurate,' and warning him 'don't be lyin' to us now. Don't be fool enough to build barriers, it's goin' to crumble right down on ya.' D repeated that he felt he was being accused of murder, and Lieutenant Hopper answered, 'You've lied to us already . . . . Put yourself in our place. What would you, what would you think if you were us?' Captain Epp told D, 'I just get the feeling that you are holding something back.' When Elmarr wondered aloud whether he should get a lawyer and protested that he was telling the truth, Captain Epp responded, 'Well, I'm not sure. I've got reason to believe that something, that some points here that you're not.' Lieutenant Hopper asked D whether he killed his ex-wife, and D denied it. Elmarr then said, 'I think I would like to talk to a lawyer.' At this point, the officers stated the interview was over, opened the door, and left the room. They testified that the entire interrogation lasted approximately fifty minutes. D was kept in the interview room for a period of time, after which one of the officers returned and asked him if he would like to take a polygraph test. Elmarr demurred and again stated he wanted to talk to an attorney. The officer left. Another officer entered the interview room, stated that he wanted to take some photographs and asked if D would mind removing his clothes for those pictures, adding, 'You really don't have a choice right now . . . .' D complied, after which he asked, 'When do I get to go home?' The officer responded, 'Shortly here, I hope.' D was allowed to make some calls while being escorted. D again asked how long he would be there, and was told, 'At least until your lawyer calls.' After a further wait, D's attorney entered the interview room and the videotape ended, almost an hour after Captain Epp and Lieutenant Hopper had terminated their formal interrogation. D was 'allowed to leave' after he consulted with his attorney. D was charged with a crime 20 years later. D moved the trial court to suppress the statements he made to police twenty years earlier in his home, in the police car on the way to the Sheriff's Department, and in the Sheriff's Department interview room. The trial suppressed all of the statements D made at the Sheriff's Department, finding that they were all the product of custodial interrogation. The trial court made the following findings: (1) D was subjected to a pat-down search upon arrival at the Sheriff's Department; (2) D was provided with (albeit deficient) Miranda-type warnings typically given when a suspect is in custody; (3) D was placed in a seven-by-ten-foot interview room and told to stay there until the officers returned; (4) D was interrogated for at least fifty minutes by officers carrying weapons; (5) Captain Epp likely suspected that D was involved in Carol Murphy's murder and was attempting to elicit incriminating statements from him; (6) Captain Epp and Lieutenant Hopper used a 'good-cop-bad-cop' technique upon D; (6) D was never handcuffed or overtly restrained, but was never told he was free to leave. D was subjected to custodial interrogation without a proper Miranda warning. P appealed.