## Facts

- In 1987, detectives contacted Kevin Franklin Elmarr at his home after his ex-wife, Carol Murphy, was found dead and asked him to come to the sheriff’s department for further questioning.
- Elmarr agreed and rode in the back of an unmarked police car; he was not handcuffed and was not offered the option to drive himself.
- At the station, Elmarr was patted down and taken to a small, closed interview room in a nonpublic area.
- An officer gave Elmarr an incomplete Miranda advisement that did not include the right to appointed counsel if he could not afford an attorney.
- Officers questioned Elmarr for about an hour using increasingly accusatory tactics, including a “good cop/bad cop” approach, and asked directly whether he killed Murphy.
- Elmarr was not told he was free to leave or that he was not under arrest.
- After Elmarr requested a lawyer, officers kept him in the closed room for nearly another hour, directed him to remove clothing for photographs, and told him, “You really don’t have a choice right now.”
- Elmarr left the station only after his attorney arrived.
- In 2007, Elmarr was charged with first-degree murder and moved to suppress his station-house statements; the trial court suppressed all such statements, and the prosecution brought an interlocutory appeal.

## Issues

1. Whether, under the objective totality-of-the-circumstances test, Elmarr was in custody for Miranda purposes during the sheriff’s department interrogation.
2. Whether an incomplete Miranda warning required suppression of Elmarr’s statements obtained during that interrogation.
3. Whether the interrogation could be divided into noncustodial and custodial phases to admit some portion of the statements.

## Decision

- The Colorado Supreme Court affirmed the suppression order and remanded for further proceedings.
- The court held that Elmarr was in custody from the outset of the station-house encounter under the totality of the circumstances.
- The court rejected the prosecution’s attempt to identify a later “transition point” at which the interview became custodial.
- Because the Miranda advisement was incomplete, the statements obtained during custodial interrogation were properly suppressed.

## Legal Principles

- Miranda custody is determined by an objective test: whether a reasonable person in the suspect’s position would believe freedom of action was curtailed to a degree associated with formal arrest.
- Officers’ uncommunicated subjective intent about whether a person is a suspect is not controlling in the custody analysis.
- Custody may be shown by police-controlled transportation to a station, placement in a nonpublic and closed interrogation room, physical searches, failure to say the person is free to leave, and accusatory interrogation tactics.
- A valid Miranda advisement must include the right to counsel and the right to appointed counsel if the suspect cannot afford an attorney; omission renders the warning defective.
- Statements obtained during custodial interrogation without a proper Miranda advisement and waiver are inadmissible and subject to suppression.

## Conclusion

The court held that station-house questioning conducted under police control in a closed, accusatory setting, without advising the suspect he could leave, was custodial from the outset; because the Miranda warning omitted the right to appointed counsel, suppression of all resulting statements was required.


People v. Elmarr, 181 P.3d 1157 (Colo. 2008)