When does a "Friendly Interview" become a "Custodial Interrogation?"

Texas Law enforcement is quite fond of the "friendly interview" (a.k.a. noncustodial interrogation) with crime suspects.  Many convictions are achieved through evidence that is gathered using this technique.  But when does a friendly interview become a custodial interrogation, thus triggering a person's constitutional rights?  More specifically, as the 13th District Court of Appeals considered in State v. Vasquez, when must a person's request for counsel be honored and the interrogation be terminated?

In Vasquez, the defendant, who had been a suspect in a murder case, voluntarily accompanied police officers to the station for additional questioning.  This occurred 4 years after the crime and initial interview of the defendant had taken place.  As found by the trial court, the defendant repeatedly requested his lawyer whom he had retained 4 years prior, when the case first arose.  Despite the defendant's requests for counsel, the police continued the interrogation and obtained an incriminatory statement.  In opposition to the defense motion to suppress the statement, the State argued that interrogation was not "custodial."  The trial court granted the motion to suppress.

In affirming the trial court's order granting the Motion to Suppress, the 13th District Court of Appeals, relying entirely on precedent from the U.S. Supreme Court and the Texas Court of Criminal Appeals, held:

"A person is in custody if, under the totality of the circumstances, a reasonable person would believe his freedom of movement was restrained to the degree associated with a formal arrest."  Dowhitt v. State, 931 S.W.2d 244 (Tex. Crim. App. 1996)

"When a person voluntarily accompanies officers to an interview, and he knows or should know that the police officers suspect he may be implicated in the crime under investigation, he is not 'restrained of movement' and is not in custody.  Shiflet v. State, 732 S.W.2d 622 (Tex. Crim. App. 1985).  However, and interview that begins as noncustodial may escalate into a custodial interrogation because of police conduct during the encounter.  Dowhitt at 255.

In determining whether a custodial interrogation, the Court examined the totality of the circumstances in light of the four factors discussed in Dowhitt, which are:

1. if the suspect is physically deprived of his freedom of action in any significant way;
2. if law enforcement officers tell a suspect that he cannot leave;
3. if law enforcement officers create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted (such as reading him his Miranda warnings); or 
4. if there is probable cause to arrest and law enforcement officers do not tell the suspect that his is free to leave.  

Applying the law to a view of the evidence in the light most favorable to the trial court's decision, the Court held that "there is some evidence to support an implicit finding that Vasquez was physically deprived of his freedom of action in a significant was by not being provided the retained counsel that he repeatedly requested."  The Court further held that:

"an innocent person in Vasquez's position who was: (1) approached at home by two sheriff's deputies and told that he 'had to go' with them, without reference to the matter in question. (2) taken to a sheriff's department office, (3) Mirandized, (4) questioned by three officers, (5) repeatedly told, against his belief, that he was no longer represented by a retained counsel, and (6) questioned after his repeated requests for retained counsel, would have believed he was in custody."

Accordingly, the order granting the motion to suppress was affirmed.

As you can see, this area of law is very fact dependent and as such, the decision of the trial court with be given considerable deference. If the trial court had denied the motion to suppress, the appellate court could have probably crafted an opinion affirming the denial.