Natalie Laflamme
Associate at Sulloway & Hollis in Concord practicing civil litigation
Copyright 2017 Robert C Strong II

No. 2017-0599
Nov. 28, 2018

  • Whether the defendant was in custody for Miranda purposes and whether his consent to a search was voluntary.

The victim reported that a man had sexually assaulted her inside a store. Two detectives asked the defendant and another man at the store to give a statement. The defendant drove to the station in his own vehicle and was signed in as a visitor. No items were taken from him and he stayed in the waiting area unrestrained, unsupervised, and free to leave while detectives interviewed the other man. At the beginning of the defendant’s interview, the police confirmed that he was not forced to come there, was not under arrest, and could leave if he wanted.

During the interview, the defendant consented to a search of the store. After initially declining, the defendant also consented to a search of his person, including DNA swabs, after detectives mentioned that they were going to apply for a warrant. For both searches he signed consent forms, which the detective explained to him. Twice during the interview the defendant inquired if he could consult a lawyer. Both times the detectives indicated that he could, but did not stop the interview as the defendant never asked to stop.

On appeal, the defendant argued that evidence should have been suppressed because he was in custody for Miranda purposes when questioned by the detectives, and his consent to the searches was not free and voluntary.

Miranda warnings are required only if the suspect is in custody and subject to interrogation. The defendant raised only the custody issue. He argued the trial court overlooked facts in the custody analysis, including: (1) the detectives did not end the interview when the defendant wanted to stop, even though the defendant twice asked to consult with counsel; (2) the entire interaction lasted over two and a half hours; (3) the detectives’ questions were accusatory; and (4) the detectives initiated contact with the defendant at his store while having badges around their necks and guns at their side.

The Court addressed each of these facts. It acknowledged that some weighed in favor of finding custody. More facts, however, weighed against that finding, such as: (1) the actual interview lasted only 25 minutes; (2) the tone of the interview was not accusatory; (3) the defendant agreed to go to the station and drove there voluntarily; and (4) he was signed in as a visitor and was not restrained. The Court also held that because the defendant asked only to consult with an attorney, and not to end the interview, those requests were not relevant to whether the police honored the promise to end the interviewed when the defendant wanted. The Court explained that the objective facts, and not the officers’ subjective intent, were dispositive of that issue. Considering all the facts, the Court concluded the defendant was not in custody for Miranda purposes when he was questioned and signed the consent forms.

The defendant also argued that his consent to the searches was not voluntary. The Court rejected his argument that he was coerced by the threat to close his store while they obtained a warrant, holding that the detective’s comment was more of an explanation than a threat, and that the defendant had already verbally consented to the search when the comment was made. The Court agreed with the trial court that the detectives did not ignore his request to see an attorney. Additionally, the defendant’s initial refusal of a search of his person did not show that he was coerced into giving consent. The Court concluded that, based on the totality of the facts, the defendant’s consent to both searches was free, knowing, and voluntary.


Gordon J. MacDonald, attorney general (Stephen D. Fuller, senior assistant attorney general), for the State. James D. Rosenberg, Shaheen & Gordon, of Concord, for the defendant.