State v. Brandon ( 2023 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
STATE OF CONNECTICUT v. BERNARD
A. BRANDON
(SC 20371)
Robinson, C. J., and McDonald, D’Auria, Mullins,
Ecker, Keller and Bright, Js.*
Syllabus
Convicted of manslaughter in the first degree with a firearm in connection
with the shooting death of the victim, the defendant appealed to this
court. The defendant, who had been serving probation for a prior convic-
tion, was at a gambling club, where he and the victim engaged in a
heated argument after the victim did not pay the defendant money he
believed he was owed. Later that night, the victim called the defendant’s
phone, apologized, and suggested that they meet for drinks. The defen-
dant then drove to a local bar and parked his car near the victim’s car.
After the defendant and the victim exited their respective vehicles, the
defendant shot the victim multiple times. Before trial, the defendant
moved to suppress, inter alia, statements that he had made to the police
during two recorded interviews. The first interview took place several
days after the shooting, right after the defendant attended a regularly
scheduled meeting with his probation officer at the probation office. At
the conclusion of that meeting, the probation officer told the defendant
that some individuals who wished to speak with him were waiting in
her supervisor’s office, which was in a locked area of the building. The
defendant then was escorted to that office, where he was interviewed
for ninety minutes by two plainclothes police officers, without being
advised of his rights pursuant to Miranda v. Arizona (384 U.S. 436).
After the first twenty-one minutes of that interview, during which the
defendant admitted to a version of events that placed him near the bar
at the approximate time of the shooting, the officer told the defendant
that he was free to leave and that he was not under arrest. The officers
advised the defendant at least five more times that he was free to leave,
but he did not terminate the interview or leave the room. The interview
continued, and, after the officers pressed the defendant, he changed his
story, implicated another individual, O, in the shooting, and used his
cell phone to find O’s phone number, which he read out loud to the
officers. At the conclusion of the interview, the officers seized the defen-
dant’s cell phone and arranged to meet with him later that evening for
the second interview, which took place in an interrogation room at the
police station. The police advised the defendant of his Miranda rights
at the outset of the second interview, and, at the end of that interview,
the defendant left without being placed under arrest. In support of his
motion to suppress, the defendant argued that his statements during
the first interview should be suppressed on the ground that it was a
custodial interrogation and that the police violated his rights by failing
to provide him with Miranda warnings prior to the interview. The
defendant challenged the admission of statements made during the sec-
ond interview, contending that that interview violated the principle
that the provision of Miranda warnings midstream, after a suspect
has offered a confession during a custodial interrogation, violates the
constitutional requirements safeguarded by Miranda. The trial court
denied the defendant’s motion to suppress the statements that he made
during his first and second interviews, concluding that the first interview
was not custodial and, therefore, that the rule pertaining to midstream
Miranda warnings was inapplicable with respect to the second inter-
view. On the defendant’s appeal from the judgment of conviction, held:
1. The trial court properly denied the defendant’s motion to suppress the
statements he had made during the first interview because, notwithstand-
ing the coercive elements of that interview, a reasonable person in the
defendant’s position would not have believed that he was restrained to
a degree associated with a formal arrest, and, therefore, the defendant
was not in custody during that interrogation:
The defendant was questioned in a coercive environment insofar as the
interview was conducted by two armed police officers in a secured area
of the probation office, immediately after the defendant’s mandatory
meeting with his probation officer, no one told the defendant that the
individuals waiting to speak to him were police officers, the officers
made it clear during the interview that the defendant was the prime
suspect, and the officers seized the defendant’s cell phone at the end of
the interview, but a coercive environment, without more, does not estab-
lish that the interview was custodial.
In light of the totality of the circumstances, this court was persuaded
that the coercive elements of the first interview were offset by other
factors and did not rise to the degree of restraint associated with a
formal arrest, as the record did not reveal that the probation officer had
ordered the defendant to meet with the police officers, that the defendant
had objected to the meeting, that the defendant had told the probation
officer that he did not have time to attend, or that the defendant had
asked the probation officer if he was obligated to go, and the simple
fact that the defendant was on probation was insufficient to render any
request from his probation officer coercive.
Moreover, the application of the factors identified in State v. Mangual
(311 Conn. 182) that a court should consider in evaluating whether an
individual is in custody for Miranda purposes to the facts of the present
case further supported the conclusion that the defendant was not
restrained to a degree associated with a formal arrest during the first
interview.
Specifically, the nature, extent and duration of the questioning, as well
as the length of the defendant’s detention, weighed against a conclusion
that he was in custody because the tone and tenor of the interview were
cordial, insofar as the officers never raised their voices, and both the
interview and the detention of the defendant lasted for only ninety
minutes.
The factors relating to the number of officers present during the inter-
view, whether they were armed, displayed their weapons, or used force,
and whether the defendant was physically restrained, when viewed
together, weighed against a conclusion that the defendant was in custody
because, although the interrogating officers displayed their badges and
guns and had handcuffs, there were only two of them, they did not
physically threaten or restrain the defendant, handcuff him, use force,
or brandish their weapons, and the defendant presented no evidence
that the circumstances surrounding the interview were akin to those
surrounding the police station interrogations at issue in Miranda.
The fact that, after the first twenty-one minutes of the interview, the
police officers repeatedly advised the defendant that he was free to leave
and that he was not under arrest, and the fact that the defendant chose
to remain and never asked to leave, also weighed against a conclusion
that the defendant was in custody, insofar as those facts suggested an
exercise of free will, rather than restraint to a degree associated with a
formal arrest, and, although the officer’s advisements would have
weighed even more heavily in favor of a conclusion that the defendant
was not in custody if they had been given at the outset of the interview,
a failure or delay to advise a defendant that he is free to leave or not
under arrest does not necessarily result in a finding of custody, especially
when the defendant in the present case left the interview without being
placed under arrest.
Although the facts that the police initiated the encounter by making
arrangements with the probation office and that no one told the defendant
that the individuals waiting to meet him were law enforcement officers
weighed modestly in favor of a conclusion that the defendant was in
custody, such a conclusion was undercut by the defendant’s acquiescence
to the meeting, and, although the defendant’s probation officer had told
the defendant that certain individuals wished to speak with him, she did
not order the defendant to attend the meeting or use coercive language,
and, thus, a reasonable person in the defendant’s position would not
have felt restrained to a degree associated with a formal arrest.
The location of the interview in the probation office provided some
support for the defendant’s contention that he was in custody, insofar
as the defendant needed to be escorted into the building in which the
probation office was located and the secured areas therein, but there
was no evidence concerning the character of the office in which he was
interviewed or concerning whether any limitations were placed on the
defendant’s ability to leave the building or the secured areas therein.
Furthermore, although the defendant’s status as a probationer who was
questioned in the probation office may have contributed to the coercive
aspects of the interview, it did not transform a noncustodial interrogation
into a custodial one, especially when the defendant was not ordered to
meet with the police officers, the questioning occurred only after the
mandated meeting with the probation officer had concluded, and the
police officers informed the defendant that he was free to leave and was
not under arrest.
With respect to the degree to which the defendant was isolated during
the interview, the fact that the police officers chose to conduct the
interview in a secured area of the probation office was offset by the
defendant’s familiarity with the probation office and his failure to intro-
duce evidence regarding the character of the building and how the proba-
tion office was situated therein, and the fact that the defendant’s cell
phone was seized was of no consequence because he did not establish
that it was seized prior to the final few minutes of the interview, and
the record demonstrated that he used his cell phone during the interview
to search for O’s contact information rather than that he was prevented
from using the phone to contact anyone.
2. The trial court properly denied the defendant’s motion to suppress the
statements that he had made during the second interview, that court
having correctly determined that the defendant was not in custody
during the first interview, and the defendant’s challenge with respect
to the second interview having been predicated on his claim that he
was in custody during the first interview.
(One justice concurring separately; two justices
dissenting in one opinion)
Argued January 20—officially released December 30, 2022**
Procedural History
Amended informations charging the defendant with
the crimes of murder and criminal possession of a pistol
or revolver, brought to the Superior Court in the judicial
district of Fairfield, where the court, E. Richards, J.,
denied in part the defendant’s motion to suppress cer-
tain evidence; thereafter, the charge of murder was
tried to the jury before E. Richards, J.; verdict of guilty
of the lesser included offense of manslaughter in the
first degree with a firearm; subsequently, the state
entered a nolle prosequi as to the charge of criminal
possession of a pistol or revolver, and the court, E.
Richards, J., rendered judgment in accordance with
the verdict, from which the defendant appealed to this
court. Affirmed.
Aaron J. Romano, for the appellant (defendant).
Timothy F. Costello, senior assistant state’s attorney,
with whom, on the brief, were Joseph T. Corradino,
state’s attorney, and David R. Applegate, senior assis-
tant state’s attorney, for the appellee (state).
Opinion
MULLINS, J. The principal issue in this appeal is
whether the defendant, Bernard A. Brandon, was in
custody when police officers interrogated him in the
office of probation following a routine meeting with
his probation officer. The defendant appeals from the
judgment of conviction, following a jury trial, of man-
slaughter in the first degree with a firearm in violation
of General Statutes § 53a-55a (a).1 The defendant claims
that the trial court improperly denied his motion to
suppress the statements he made during two separately
recorded interrogations of him by police officers.2
As to the first interrogation, which occurred on Feb-
ruary 16, 2016, sometime between 11 a.m. and noon, at
the Bridgeport Office of Adult Probation, the defendant
contends that, because the police failed to advise him
of his rights pursuant to Miranda v. Arizona, 384 U.S.
436, 478–79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966),
the interrogation violated his rights under the fifth and
fourteenth amendments to the United States constitu-
tion. As to the second interrogation, which occurred
later on the same day, at approximately 6 p.m., at the
Bridgeport Police Department, the defendant claims
that, notwithstanding the fact that the officers had
issued Miranda warnings at the outset of that interroga-
tion, it was tainted by the alleged illegality of the first
interrogation.3 We disagree. After review, we have
determined that the first interrogation was not custo-
dial, and, therefore, that Miranda warnings were not
required. Consequently, the failure to provide them did
not violate the defendant’s rights and did not taint the
second interrogation. Accordingly, we conclude that
the trial court properly denied the defendant’s motion
to suppress the statements he made during the two
interrogations and, therefore, affirm the judgment of
the trial court.
The jury reasonably could have found the following
facts.4 In the afternoon of February 11, 2016, the defen-
dant and the victim, Javoni Patton, were rolling dice
with a number of other persons at an establishment
called the Jamaican Gambling Club, near the intersec-
tion of Park Avenue and Vine Street in Bridgeport. The
defendant believed that the victim was doing well in
the games; he estimated that the victim had won $4000
that afternoon. By contrast, the defendant had lost
between $400 and $500.
At some point that afternoon, the victim told the
defendant that he had just won $20,000 at a casino and
had purchased a Mercedes-Benz (Mercedes) with his
winnings. The victim then placed a set of Mercedes key
fobs on the table. The defendant picked them up and
claimed he saw ‘‘E55’’ on the key fobs. When the victim
later stated that the Mercedes was an E550, the defen-
dant said he was wrong—it was an E55. They initially
wagered $500 over the dispute, which became heated.
When they turned the key fobs over, the defendant
claimed, they saw ‘‘E55’’ on one side and ‘‘E550’’ on the
other. The defendant continued to believe he had won
the bet but offered to accept only $100 in payment
from the victim. The victim did not pay the defendant
any money.
After leaving the club, the victim called the defen-
dant’s phone three times, between 8:15 and 8:23 p.m.
The defendant told the police that, when he and the
victim spoke over the phone at 8:23 p.m., the victim
apologized for his earlier conduct and suggested that
they meet for drinks at the Thirty Plus Social Club, a
bar known as Robin’s, located at the intersection of
Connecticut and Stratford Avenues in Bridgeport.
The defendant left the Jamaican Gambling Club
sometime around 8:27 p.m. He drove to Robin’s, where
the victim waited in his Cadillac, which was parked
at the intersection between Connecticut and Stratford
Avenues. The defendant parked his Audi near the vic-
tim’s car, after which he and the victim both exited
their vehicles. The defendant shot the victim multiple
times, hitting him in the chest, the right hand and in
the back of both legs. The victim died from the gunshot
wound to his chest. The defendant drove away.
Three recorded interviews of the defendant by the
police featured heavily in the state’s case against him.
The first interview took place in the probation office in
Bridgeport on February 16, 2016, immediately following
the defendant’s regularly scheduled meeting with his
probation officer. The police conducted the second
interview approximately five hours later, in the police
station. The third interview took place two days later,
in an unmarked police car in a Burger King parking lot.
Before trial, the defendant moved to suppress all of
the statements he made during the three interviews.
Following a hearing on the motion, the trial court denied
the motion to suppress as to the first two interviews
and granted it as to the third. Subsequently, during trial,
defense counsel notified the court that, without waiving
the objection to the introduction of the defendant’s
statements during all three interviews, in light of the
court’s denial of the motion to suppress the statements
that the defendant made during the first two interviews,
he would offer the statements made during the third
interview in order to provide context for the first two.
The state charged the defendant with murder in viola-
tion of General Statutes § 53a-54a (a) and criminal pos-
session of a pistol or revolver in violation of General
Statutes (Supp. 2016) § 53a-217c (a) (1).5 Following the
trial, the jury found the defendant not guilty of murder
but guilty of the lesser included offense of manslaughter
in the first degree with a firearm. The state subsequently
entered a nolle prosequi as to the charge of criminal
possession of a pistol or revolver. The trial court sen-
tenced the defendant to twenty-seven years of incarcer-
ation. This appeal followed.
We begin by observing that, because the state does
not challenge the trial court’s determination that the
first interview constituted an interrogation, that ques-
tion is not before us in this appeal. Our sole task is to
resolve whether the defendant was in custody during
that interrogation. That is, as we explained, the defen-
dant’s challenge to the trial court’s denial of his motion
to suppress as to both the first and second interviews
rests on his assertion that he was in custody during the
first interrogation. Accordingly, our conclusion that the
trial court correctly determined that the defendant was
not in custody during the first interrogation is the dis-
positive issue in this appeal. The following facts, which
either were found by the trial court or are undisputed,
are relevant to this issue.6
On February 16, 2016, the defendant, who was serving
probation for a prior domestic violence conviction,
reported to the probation office in Bridgeport for his
regularly scheduled meeting with his probation officer,
Shavonne Calixte. In order to meet with Calixte, the
defendant had to pass through several layers of security.
When members of the public enter the building where
the probation office is located, they must pass through
a metal detector and security check in the first floor
lobby in order to access the elevators to the floors
occupied by the probation office, which include at least
the second and third floors of the building.7 The offices
on the second and third floors are within locked areas;
probationers may enter only with the assistance of an
escort. The record is silent as to whether a member of
the public may leave without the assistance of an escort
upon the conclusion of his or her business with the
probation office. Although there was testimony at the
suppression hearing that a member of the public could
not enter the secure areas on the second and third
floors of the probation office without being provided
with an escort, there was no testimony that egress from
those areas is similarly restricted.
The defendant met with Calixte in a reporting room
on the third floor. At the conclusion of their meeting,
Calixte told the defendant that some persons who
wished to speak with him were waiting on the second
floor, in the office of her supervisor, Peter Bunosso.8
Although she could not recall whether she expressly
told the defendant that he did not have to meet with
the unidentified persons, Calixte was certain that she
did not tell him he was obligated to speak to them.9
She escorted the defendant to the second floor, where
they met Bunosso.
Bunosso then escorted the defendant to his office,
which was within a locked area. Two police officers,
Lieutenant Christopher LaMaine and Detective Ada
Curet, waited in the office for the defendant. Bunosso
did not remain for the interrogation. He removed some
work files, left and closed the door behind him. No
member of the probation office was present for the
interrogation.
LaMaine testified that, on the day of the interrogation,
he wore plain clothes and that both his badge and his
gun were visible. Curet was dressed similarly, also with
a badge and gun visible. Although LaMaine and Curet
both had handcuffs, LaMaine was uncertain whether
the defendant could see them. Neither of the officers
brandished their weapons, used their handcuffs, or
restrained the defendant in any way during the interro-
gation. The defendant sat closest to the door, and at
no time during the interrogation did the officers block
the door. No testimony was offered regarding the size
of the office.
The interrogation lasted about ninety minutes.
LaMaine, who asked most of the questions during the
interrogation, began by informing the defendant that
he and Curet were ‘‘talking to people’’ who knew the
victim. During the first approximately twenty-one
minutes of the interrogation, LaMaine elicited the defen-
dant’s initial account of the events on the night of the
shooting.
Specifically, the defendant told the police that, in the
afternoon on the day of the shooting, he and the victim
had both been rolling dice at the Jamaican Gambling
Club. He admitted that, while there, he and the victim
engaged in a heated argument over the particular model
of the Mercedes that the victim claimed to have pur-
chased with money he had won at a casino.
The defendant initially claimed that he left the club
before the victim did. He left alone, he said, in his blue
2004 Audi, sometime between 7 and 7:30 p.m. At around
8 p.m., he claimed, he arrived at another gambling estab-
lishment, Old Timers, or ‘‘Mr. B’s,’’ on Stratford Avenue,
between Carroll and Wilmot Avenues. He claimed that
he parked his car in front of Old Timers and was inside
the establishment when emergency vehicles passed by
at around 8:36 p.m. Soon afterward, he and some friends
walked to a nearby liquor store, Jimmy’s Liquors, where
one of the group had parked his truck. They got into
the truck and, while they were driving around, noticed
the taped off area at Robin’s. At around that time, a
member of the group received a phone call informing
him that the victim had been shot. The defendant said
that he retrieved his car from the front of Old Timers
sometime around 9 p.m., and then drove to his girl-
friend’s house.
After the defendant provided this account of his
movements, LaMaine began questioning him in greater
detail regarding the nature of his dispute with the victim
at the Jamaican Gambling Club. He asked the defendant
to provide details regarding who saw the dispute, how
heated it became, and whether it escalated into a physi-
cal confrontation. LaMaine then confronted the defen-
dant with the fact that the victim subsequently called
him and asked the defendant to meet him at Robin’s.
The defendant admitted that he received the phone call
and acknowledged that the victim had asked to meet
there, but the defendant denied that he went ‘‘down
that way.’’ When LaMaine reminded the defendant that
‘‘there’s a camera at [the intersection of] Stratford and
Hollister,’’ the defendant admitted that he had ‘‘most
likely’’ taken a right onto Stratford Avenue from Hol-
lister Avenue and then turned at the intersection
between Stratford and Connecticut Avenues, a route
that took him directly past Robin’s, which is at the
intersection between the two streets. LaMaine then
added, ‘‘at . . . 8:33.’’ When the defendant hesitated,
LaMaine said, ‘‘I’m just telling you what the camera
showed.’’ LaMaine again stated that the defendant
turned from Stratford Avenue onto Connecticut Avenue
at 8:33 p.m. This time, the defendant said, ‘‘I guess so.’’
That admission placed the defendant in front of Robin’s
at the approximate time of the shooting, albeit only
momentarily.
LaMaine pressed the defendant further, obtaining an
admission from him that, based on his 8:23 p.m. phone
conversation with the victim, the defendant knew, when
he drove past Robin’s at 8:33 p.m., that the victim was
there. The defendant continued to maintain, however,
that he ‘‘rolled down through there,’’ and he did not see
the victim.
LaMaine then said: ‘‘He was parked right there. And
you stopped for, well, two minutes, [one and one-half
minutes], almost two minutes. You did. And then you
continued on. And there’s a lot of cameras, both at
Stratford and Connecticut [Avenues]. I’m not even talk-
ing about the ones we own. There’s a lot of cameras,
[on] just about every store, building, even Robin’s. If
you have a chance, [and] you go by, you’ll see a camera
right there. You’ll see a camera. It’s on the Stratford
[Avenue] side. And then, right next to it, [there] is a
place called . . . Derek’s Auto Parts. It’s the building
that abuts right up against Robin’s. And they have cam-
eras on both sides. Stratford and Connecticut [Ave-
nues]. You can go back, I mean, there’s an endless
number of cameras. Every store has a camera. . . .
Yeah. And that’s not even counting our good ones. And
our cameras are so good [that] we can read license
plates, because we know that’s why we’re going to be
using them. So, this is what brings us to you. You went
there. And there’s also people in the bar. You’ve been
in that bar. . . . So, you know [that] next to the win-
dow . . . there’s a window as big as this . . . waist
high. And they can see out. . . . Now, I’m not going
to tell you I know everything that was said. And there
was a dispute, and [the victim] was hot. But you and
him got into a little thing there. And we just want to
hear your side of it.’’
When the defendant responded, ‘‘[y]eah . . . on
Park Avenue,’’ LaMaine said: ‘‘No. . . . I’m talking
about where he was shot. Maybe he brought a gun.
Maybe you took it from him. All I know is that you and
him got into a dispute at his car. That’s why we’re here.
Okay. And we want to hear your side of it. You’re not
going out of here in handcuffs. Okay. You’re not. You’re
going to walk out of here. Nothing you say is going to
get you arrested today. Okay. We’re here to get to the
truth, and that’s our only job.’’ (Emphasis added.)
Less than thirty seconds later, LaMaine told the defen-
dant that, if he wanted to, he could ‘‘walk away right
now . . . .’’ LaMaine and Curet advised the defendant
five additional times that he was free to leave. Most of
those warnings were within five minutes after the first
advisement. Specifically, in the five minutes after
LaMaine first told the defendant that he was not under
arrest and was free to leave, he also stated: ‘‘[y]ou can
leave right now if you want’’; ‘‘[n]o matter what you
say, you’re going to walk out of that door’’; ‘‘[y]ou can
walk out right now’’; and ‘‘[l]ike I said, you’re free to
go.’’ At a later point in the interrogation, Curet reminded
the defendant that he was going to ‘‘walk out this door.’’
Approximately one third of the way through the inter-
rogation, LaMaine began to make clear to the defendant
that, if he left without providing the police with informa-
tion to the contrary, he would remain their prime sus-
pect, and they would likely seek a warrant for his arrest.
He also suggested that, if the defendant provided that
information sooner rather than later, his account would
likely be deemed more credible. For example, after the
fifth time LaMaine advised the defendant that he could
leave the interrogation, he also said that, if the defen-
dant left, ‘‘we gotta go on the facts we have. There’s
just the two of you there. . . . [S]omehow [the victim]
gets shot when it’s just the two of you. . . . [W]e’re
probably gonna be writing a murder warrant for you.
And, down the road, you might want to say, okay, well,
I want to tell my side of the story, like . . . he pulled
a gun or something. . . . But it’s gonna not sound very
credible because everybody, when they’re jammed up,
says, ‘oh, well, let me tell you, this is self-defense, or
he pulled a gun.’ . . . But it just won’t be credible
because, yeah, everybody comes up with it once they’re
arrested.’’
The defendant did not choose to terminate the inter-
rogation or to leave the room after any one of the
advisements that he could leave or walk out. Thus,
LaMaine continued to press him for information. As
part of LaMaine’s interrogation strategy, he emphasized
the incriminating effect of the video footage, telling the
defendant that ‘‘the video doesn’t lie’’ and reminding
the defendant that, because it was bitterly cold on the
night of the shooting, virtually no one else would be
captured on the outdoor video footage. At the same
time, LaMaine misrepresented what the video footage
depicted. For example, LaMaine told the defendant that
the video showed the defendant driving away while the
victim ran and staggered into the middle of the road,
then collapsed almost at the Stratford line. Our review
of the record does not reveal any such video footage.
About thirty-five minutes into the interrogation, the
defendant abandoned his initial story, beginning with
his admission that he had, in fact, stopped at Robin’s.
LaMaine drew a rough map of the immediate area sur-
rounding the bar and asked the defendant to indicate
where he parked. The defendant pointed to a spot on
the map that placed his car immediately behind where
the victim’s car had been parked, ‘‘bumper to bumper,’’
as LaMaine described it. Both LaMaine and Curet then
emphasized to the defendant that, according to his cur-
rent account, he was the only person, other than the
victim, in the vicinity when the victim was shot—that
meant that he was the one who shot the victim.
At that point, the defendant stated that he was not
alone. He now claimed that a person named Outlaw,
who also had been gambling at the Jamaican Gambling
Club that afternoon, had accompanied him when he
left the club. He said that Outlaw rode in the passenger
seat. According to the defendant, when he stopped his
car at Robin’s, Outlaw jumped out of the car, saying
that he was going to get money that the victim owed
him. At that time, the defendant had opened his door
on the driver’s side, and cracked a cigar open, emptied
it, then rolled a blunt in it. While he was still rolling
his blunt, the defendant heard multiple gunshots. Out-
law got back into the car. The defendant dropped him
off a short distance from Robin’s, on Connecticut Ave-
nue, and then drove away.
Both LaMaine and Curet expressed doubts regarding
the veracity of the defendant’s story. The officers told
him that he had not adequately explained why, if the
victim owed Outlaw money, Outlaw had made no
attempt to recover the debt while he and the victim
were both at the Jamaican Gambling Club, particularly
given that the victim had won a significant amount of
cash over the course of the afternoon.
Nevertheless, LaMaine then asked the defendant for
Outlaw’s real name, his address, his phone number, and
his physical description. The defendant claimed not to
know Outlaw’s real name or his address. At LaMaine’s
request, the defendant scrolled through his contacts on
his cell phone for Outlaw’s information, then read the
phone number out loud to LaMaine. He also provided
the police with a physical description of Outlaw. Although
LaMaine and Curet continued to call into question the
defendant’s account of the events of that evening, the
defendant insisted that Outlaw had been present at
the scene and had shot the victim. At the end of the
interrogation, LaMaine informed the defendant that,
because he had indicated that he communicated with
Outlaw on his phone, the police were seizing the defen-
dant’s cell phone. Also at the end of the interrogation,
the defendant agreed to come to the police station for
a second interview, in order to identify Outlaw from
photographs drawn from the police department’s data-
base. The defendant left the interrogation without being
placed under arrest.
The second interrogation took place on the same
day, at about 6 p.m., in an interrogation room at the
Bridgeport police station. At the outset of the interview,
Detective Robert Winkler and Curet advised the defen-
dant of his rights pursuant to Miranda. During the sec-
ond interview, Winkler, LaMaine and Curet obtained
some additional details from the defendant. For exam-
ple, the defendant explained that the initial amount that
he and the victim wagered was $500, but, after they
discovered that one side of the keys said ‘‘E55’’ and the
other side said ‘‘E550,’’ the defendant offered to accept
$100. He also told the police officers that the coat he
was wearing during the interview was the same coat
he wore on the night of the shooting.10 Additionally, he
identified a photograph of Troy Lopes as the person
known to him as Outlaw. For the most part, however,
during the second interview, the police officers asked
the defendant to review the account he had provided
to them during the first interview. At the end of the
interview, the defendant left without being placed
under arrest.
Two days after the first two interviews, the defendant
initiated the third interview, which took place in an
unmarked police car in the parking lot of a Burger King
in Stratford. LaMaine and Curet sat in the front seats.
The defendant sat in the back seat. The defendant
claimed that he feared for his safety because Outlaw
had contacted him regarding the defendant’s coopera-
tion with the police. When LaMaine and Curet ques-
tioned him regarding contradictions in his story impli-
cating Outlaw in the shooting death of the victim, the
defendant asked, ‘‘[d]o I need to just go get a fucking
lawyer?’’ Rather than clarifying whether the defendant
was invoking his right to counsel, LaMaine and Curet
continued questioning him. Eventually, the defendant
exited the car, thus ending the interview. He left without
being placed under arrest.
Prior to trial, the defendant moved to suppress his
statements in all three interviews. The defendant argued
that the first interview was a custodial interrogation
and that the officers violated his rights by failing to
provide him with Miranda warnings prior to the inter-
view. Relying on his argument that the first interroga-
tion was custodial, the defendant challenged the admis-
sion of the second interview on the basis that it violated
the rule set forth in Missouri v. Seibert, 542 U.S. 600,
124 S. Ct. 2601, 159 L. Ed. 2d 643 (2004). Specifically,
in Seibert, the United States Supreme Court held that
the provision of Miranda warnings midstream, after a
suspect had provided a confession during a custodial
interrogation, violated the constitutional requirements
safeguarded by Miranda. See id., 604 (opinion announc-
ing judgment). The trial court denied the defendant’s
motion to suppress the statements that he made during
his first and second interviews. See footnote 2 of this
opinion.
Pertinent to the issues presented in this appeal, the
trial court made the following rulings. As to the first
interview, the court concluded that, although it was an
interrogation, a reasonable person in the defendant’s
position would not have believed that he was in custody.
In arriving at that conclusion, the court reviewed the
totality of the circumstances and emphasized the fol-
lowing: the interrogation lasted only ninety minutes;
the police did not physically restrain the defendant at
any time and did not brandish their weapons; LaMaine,
whose testimony the court credited, characterized the
interrogation as cordial; the police told the defendant
multiple times that he was free to leave; and, in fact,
at the end of the interrogation, the defendant left. As
to the second interview, the court explained, because
the first interrogation was not custodial, Seibert was
inapplicable, and, therefore, the defendant’s challenge
with respect to the second interrogation failed as well.
‘‘[T]he standard of review for a motion to suppress
is well settled. A finding of fact will not be disturbed
unless it is clearly erroneous in view of the evidence
and pleadings in the whole record . . . . [W]hen a
question of fact is essential to the outcome of a particu-
lar legal determination that implicates a defendant’s
constitutional rights, [however] . . . our customary
deference to the trial court’s factual findings is tem-
pered by a scrupulous examination of the record to
ascertain that the trial court’s factual findings are sup-
ported by substantial evidence. . . . [When] the legal
conclusions of the court are challenged, [our review is
plenary, and] we must determine whether they are
legally and logically correct and whether they find sup-
port in the facts [found by the trial court] . . . .’’ (Inter-
nal quotation marks omitted.) State v. Jackson, 304
Conn. 383, 394, 40 A.3d 290 (2012).
This court previously has summarized the principles
that govern our review of this issue. ‘‘To establish enti-
tlement to Miranda warnings . . . [a] defendant must
satisfy two conditions, namely, that (1) he was in cus-
tody when the statements were made, and (2) the state-
ments were obtained in response to police questioning.’’
State v. Mangual, 311 Conn. 182, 192, 85 A.3d 627 (2014).
‘‘The defendant bears the burden of proving custodial
interrogation.’’ (Internal quotation marks omitted.) State
v. Jackson, supra, 304 Conn. 417. As we noted, only
the question of whether the defendant was in custody
during the first interrogation is before us in this appeal.
‘‘Although [a]ny [police] interview of [an individual]
suspected of a crime . . . [has] coercive aspects to it;
Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711,
50 L. Ed. 2d 714 (1977); only an interrogation that occurs
when a suspect is in custody heightens the risk that
statements obtained therefrom are not the product of
the suspect’s free choice. Dickerson v. United States,
530 U.S. 428, 435, 120 S. Ct. 2326, 147 L. Ed. 2d 405(2000). This is so because the coercion inherent in cus-
todial interrogation blurs the line between voluntary
and involuntary statements . . . .’’ (Internal quotation
marks omitted.) State v. Mangual, supra, 311 Conn. 191.
In Miranda, the United States Supreme Court defined
a custodial interrogation as ‘‘questioning initiated by
law enforcement officers after a person has been taken
into custody or otherwise deprived of his freedom of
action in any significant way.’’ Miranda v. Arizona,
supra, 384 U.S. 444. Subsequently, the court has signifi-
cantly narrowed the meaning of a restraint on freedom
of action or movement. See, e.g., C. Weisselberg, ‘‘Mourn-
ing Miranda,’’ 96 Cal. L. Rev. 1519, 1540–42 (2008). In
California v. Beheler, 463 U.S. 1121, 103 S. Ct. 3517, 77
L. Ed. 2d 1275 (1983), the court limited the category of
restraints on freedom of movement to those ‘‘of the
degree associated with a formal arrest.’’ Id., 1125. The
court has rejected the proposition that an interrogation
of a suspect in a police station, an office of probation, or
even of an incarcerated person in a prison, is necessarily
custodial. See, e.g., Howes v. Fields, 565 U.S. 499, 502,
132 S. Ct. 1181, 182 L. Ed. 2d 17 (2012) (prison); Mary-
land v. Shatzer, 559 U.S. 98, 112–13, 130 S. Ct. 1213,
175 L. Ed. 2d 1045 (2010) (prison); Minnesota v. Mur-
phy, 465 U.S. 420, 433, 104 S. Ct. 1136, 79 L. Ed. 2d
409 (1984) (office of probation); Oregon v. Mathiason,
supra, 429 U.S. 495 (police station). Rather, the para-
mount consideration for whether a suspect is in custody
is whether the circumstances can ‘‘fairly be character-
ized as the functional equivalent of formal arrest’’; Ber-
kemer v. McCarty, 468 U.S. 420, 442, 104 S. Ct. 3138,
82 L. Ed. 2d 317 (1984); or, put another way, ‘‘whether
the relevant environment presents the same inherently
coercive pressures as the type of station house ques-
tioning at issue in Miranda.’’11 Howes v. Fields,
supra, 509.
‘‘As used in . . . Miranda [and its progeny], custody
is a term of art that specifies circumstances that are
thought generally to present a serious danger of coer-
cion. [Id., 508–509]. In determining whether a person
is in custody in this sense . . . the United States
Supreme Court has adopted an objective, reasonable
person test . . . the initial step [of which] is to ascer-
tain whether, in light of the objective circumstances of
the interrogation . . . a reasonable person [would]
have felt [that] he or she was not at liberty to terminate
the interrogation and [to] leave. . . . [Id., 509].
Determining whether an individual’s freedom of move-
ment [has been] curtailed, however, is simply the first
step in the analysis, not the last. Not all restraints on
freedom of movement amount to custody for purposes
of Miranda. [Accordingly, the United States Supreme
Court has] decline[d] to accord talismanic power to the
freedom-of-movement inquiry, Berkemer [v. McCarty,
supra, 468 U.S. 437], and [has] instead asked the addi-
tional question [of] whether the relevant environment
presents the same inherently coercive pressures as the
type of station house questioning at issue in Miranda.
. . . Howes v. Fields, supra, [565 U.S.] 509.’’ (Citations
omitted; footnote omitted; internal quotation marks
omitted.) State v. Mangual, supra, 311 Conn. 193.
In other words, ‘‘[o]nce the scene is set and the play-
ers’ lines and actions are reconstructed, the court must
apply an objective test to resolve the ultimate inquiry:
was there a formal arrest or restraint on freedom of
movement of the degree associated with formal arrest.’’
(Internal quotation marks omitted.) J. D. B. v. North
Carolina, 564 U.S. 261, 270, 131 S. Ct. 2394, 180 L.
Ed. 2d 310 (2011). Put simply, it is not enough that a
reasonable person under the circumstances would not
have thought that he was free to leave. As one court
has explained, ‘‘[u]nder Berkemer [v. McCarty, supra,468 U.S. 420], the question [in a custody inquiry] is not
whether a reasonable person would believe he was not
free to leave, [but] rather whether such a person would
believe he was in police custody of the degree associ-
ated with formal arrest.’’ (Emphasis in original; internal
quotation marks omitted.) Bates v. United States, 51
A.3d 501, 510 n.22 (D.C. 2012). ‘‘Any lesser restriction
on a person’s freedom of action is not significant enough
to implicate the core fifth amendment concerns that
Miranda sought to address.’’ State v. Mangual, supra,
311 Conn. 194–95.
In Mangual, this court identified the following, non-
exhaustive list of factors to consider in evaluating the
totality of the circumstances to determine whether a
defendant has satisfied his burden of establishing that
he was in custody for purposes of Miranda: ‘‘(1) the
nature, extent and duration of the questioning; (2)
whether the [defendant] was handcuffed or otherwise
physically restrained; (3) whether [law enforcement]
officers explained that the [defendant] was free to leave
or not under arrest; (4) who initiated the encounter;
(5) the location of the interview; (6) the length of the
detention; (7) the number of officers in the immediate
vicinity of the questioning; (8) whether the officers were
armed; (9) whether the officers displayed their weapons
or used force of any other kind before or during ques-
tioning; and (10) the degree to which the [defendant]
was isolated from friends, family and the public.’’ Id.,
197.
With these principles in mind, we examine the totality
of the circumstances to determine whether the defen-
dant was in custody during the first interrogation. It is
undisputed that the defendant was neither handcuffed
nor placed under formal arrest at any point prior to or
during the first police interrogation. Thus, the question
is whether the police otherwise restrained him to a
degree associated with a formal arrest; that is to say,
was his restraint the functional equivalent of a formal
arrest? Assessing all the circumstances, we conclude
that a reasonable person would not have believed that
he was restrained to such a degree.
It is undeniable that the defendant was questioned
in a coercive environment. Two armed police officers
conducted the interrogation in a secured area in the
probation office, immediately after the defendant had
finished his required meeting with his probation officer.
Additionally, it appears that no one told the defendant
that the individuals waiting to speak to him were police
officers. During the interrogation, the officers made it
clear to the defendant that he was their prime suspect.
Finally, at the end of the interrogation, the officers
seized the defendant’s cell phone.
As we explained in our review of the controlling
principles, however, a coercive environment, without
more, does not establish that an interrogation was cus-
todial.12 The United States Supreme Court has stated
that ‘‘[a]ny interview of one suspected of a crime by a
police officer will have coercive aspects to it, simply
by virtue of the fact that the police officer is part of a
law enforcement system [that] may ultimately cause
the suspect to be charged with a crime. But police
officers are not required to administer Miranda warn-
ings to everyone whom they question.’’ Oregon v. Mathi-
ason, supra, 429 U.S. 495. The ultimate inquiry in a
custody determination is always ‘‘whether there is a
formal arrest or restraint on freedom of movement of
the degree associated with a formal arrest.’’ (Internal
quotation marks omitted.) Yarborough v. Alvarado, 541
U.S. 652, 662, 124 S. Ct. 2140, 158 L. Ed. 2d 938 (2004).
Our review of the facts persuades us that the coercive
elements of the interrogation were offset by other fac-
tors and did not rise to the degree of restraint associated
with a formal arrest.
In summary, we conclude that, notwithstanding the
coercive elements of the interrogation, the following
facts demonstrate that the defendant was not restrained
to the degree associated with a formal arrest and, there-
fore, was not in custody during the interrogation. The
record does not reveal that Calixte ordered the defen-
dant to meet with the police officers. Instead, according
to Calixte’s uncontroverted testimony at the suppres-
sion hearing, following the conclusion of the defen-
dant’s mandatory meeting with her, she informed the
defendant that, ‘‘if he had a moment,’’ he could meet
with ‘‘someone else’’ who wished to speak with him.
The defendant did not introduce any evidence that he
objected to the meeting, told Calixte that he did not
have time, or asked her if he was obligated to go despite
her clear statement that their mandatory meeting was
over. The defendant could have left. He did not. There
is no indication in this record that Calixte would not
have honored the defendant’s request if he said he did
not have a moment and declined to attend the meeting.
Simply being on probation is insufficient to render
any request from one’s probation officer coercive. See,
e.g., United States v. Ruggles, 70 F.3d 262, 265 (2d Cir.
1995) (considering fact that probation officer did not
tell defendant that he was obligated to speak with law
enforcement officers as weighing against conclusion
that defendant was in custody), cert. denied, 516 U.S.
1182, 116 S. Ct. 1284, 134 L. Ed. 2d 229 (1996). As we
explain hereinafter, in order to support his claim that
his status as a probationer created a level of coercion
that compels the conclusion that he was in custody,
the defendant had to demonstrate that Calixte ordered
him to attend the meeting.13 He failed to make that
showing.
In fact, after Calixte told him that the mandatory
meeting was over, and that he could meet with the
waiting persons ‘‘if he had a moment,’’ the defendant
accompanied Calixte to meet with the unidentified per-
sons. Upon seeing that the individuals who were waiting
for him were members of law enforcement, the defen-
dant elected to remain in Bunosso’s office. The defen-
dant did not end the ninety minute interrogation, not-
withstanding the repeated reminders from the police
officers that he was free to leave and was not under
arrest. The officers did not handcuff the defendant,
physically threaten him, or attempt to physically
restrain him or otherwise restrict his movement. The
tone of the interrogation was not hostile. Although the
officers seized his cell phone at the end of the interroga-
tion, the defendant was able to freely use his phone
during the interrogation, specifically, when, midway
through the interrogation, he accessed, from his cell
phone contacts, the phone number for ‘‘Outlaw,’’ the
man he accused of committing the crime. Finally, at
the end of the interrogation, the defendant left without
being placed under arrest and agreed to meet with the
officers again, later that same day, at the police station.
Our review of the various Mangual factors only fortifies
our conclusion that the defendant was not restrained
to a degree associated with a formal arrest. We discuss
those various Mangual factors in greater detail individu-
ally.14
Turning to the first Mangual factor, we begin with
the trial court’s finding that the tone and tenor of the
interrogation were cordial. The trial court stated, during
the suppression hearing, that it had reviewed the audio
and video recordings of the three interrogations. The
court’s factual finding, therefore, is based on its own
review of the evidence, as well as its finding that
LaMaine’s testimony that the first interrogation was
cordial was credible. We defer to the credibility findings
of the trial court. See, e.g., Jones v. State, 328 Conn.
84, 101, 177 A.3d 534 (2018).
Moreover, to the extent that the trial court’s finding
regarding the tone of the interrogation is predicated
on its own review of the audio recording of the first
interview, that finding is equally entitled to deference.
See, e.g., State v. Griffin, 339 Conn. 631, 669, 262 A.3d
44 (2021) (‘‘[a] trial court’s findings are entitled to defer-
ence, even if they are predicated on documentary evi-
dence that this court is equally able to review for itself
on appeal’’), cert. denied, U.S. , 142 S. Ct. 873,
211 L. Ed. 2d 575 (2022); see also, e.g., State v. Lawrence,
282 Conn. 141, 157, 920 A.2d 236 (2007) (‘‘it would
be improper for this court to supplant its credibility
determinations for those of the fact finder, regardless
of whether the fact finder relied on the cold printed
record to make those determinations’’).
Consistent with the trial court’s finding, we note,
from our own review of the recording of the first interro-
gation, that at no point during that interrogation did
either of the police officers raise their voices. Courts
have noted that such a tone and tenor weigh against a
conclusion that a defendant was in custody. See, e.g.,
United States v. Guerrier, 669 F.3d 1, 5–6 (1st Cir. 2011)
(in concluding that interview in unmarked police car
with parole officer and two members of law enforce-
ment was not custodial, ‘‘relatively calm and nonthreat-
ening’’ nature of questioning weighed against finding
that defendant was in custody); see also, e.g., United
States v. Edrington, 851 Fed. Appx. 574, 577 (6th Cir.
2021) (‘‘consensual tone and tenor of the meeting [with
the defendant’s probation officer and federal agents]
weigh[ed] against a finding of custody’’ (internal quota-
tion marks omitted)).
The duration of the interrogation, ninety minutes,
also weighs against a conclusion that the defendant
was in custody in the present case. Indeed, this court
has concluded that an interview of two and one-half
hours did not ‘‘necessitate the conclusion that a reason-
able person would believe [the defendant] could not
leave, particularly in light of the repeated reminders he
received that he was free to leave at any time.’’ State
v. Pinder, 250 Conn. 385, 414, 736 A.2d 857 (1999). Other
courts also have considered an interview of this length
to weigh against a conclusion that a defendant was in
custody. See, e.g., Stechauner v. Smith, 852 F.3d 708,
715–16 (7th Cir.) (ninety minute interview ‘‘was rela-
tively short’’), cert. denied, U.S. , 138 S. Ct. 194,
199 L. Ed. 2d 130 (2017); United States v. Galceran, 301
F.3d 927, 931 (8th Cir. 2002) (‘‘the ninety-eight minute
length of the interview [did] not indicate police domina-
tion’’). But see, e.g., United States v. FNU LNU, 653 F.3d
144, 154–55 (2d Cir. 2011) (although court ultimately
concluded that defendant was not in custody, inter-
view’s duration of ninety minutes was among factors
that weighed in favor of finding of custody). The dura-
tion of the interrogation was the same as that of the
detention. Accordingly, the sixth Mangual factor, the
length of the detention, also weighs against concluding
that the defendant was in custody. See State v. Pinder,
supra, 414.
We next consider the second, seventh, eighth and
ninth Mangual factors, which, when viewed together,
weigh against a conclusion that the defendant was
restrained to a degree associated with a formal arrest.
There were only two police officers in the interrogation
room. The defendant was neither handcuffed nor physi-
cally restrained in any way. There is also no evidence
that, if the defendant had sought to move, the officers
would have restricted his movement. In fact, the defen-
dant sat closest to the door. As we observed, there was
no testimony regarding the size of the office. Nor was
there testimony as to whether the door was locked.
There was no evidence regarding where the officers
were in relation to the defendant, other than that they
were farther away from the door than the defendant.
It was the defendant’s burden to establish those facts
in support of his claim. He failed to present any evidence
that the circumstances within the room created an
atmosphere similar to that associated with the station
house interrogations at issue in Miranda. Although
both officers were armed, were equipped with hand-
cuffs, and wore visible badges, neither of them physi-
cally threatened the defendant, used force, handcuffed
him, or brandished their weapons.15
Turning to the third Mangual factor, we consider it
significant that, in the present case, after the first twenty-
one minutes of the interrogation, LaMaine and Curet
repeatedly advised the defendant that he was free to
leave and that he was not under arrest. Courts have
held that these advisements weigh heavily against the
conclusion that a defendant was in custody for purposes
of Miranda. See, e.g., Howes v. Fields, supra, 565 U.S.
515 (‘‘[m]ost important, [the defendant] was told at the
outset of the interrogation, and was reminded again
thereafter, that he could leave and go back to his cell
whenever he wanted’’); United States v. Roberts, 975
F.3d 709, 716 (8th Cir. 2020) (informing suspect that he
is free to terminate interview is ‘‘powerful evidence that
a reasonable person would have understood that he
was free to terminate the interview’’ (internal quotation
marks omitted)), cert. denied, U.S. , 141 S. Ct.
2822, 210 L. Ed. 2d 942 (2021); United States v. Marti-
nez, 795 Fed. Appx. 367, 371 (6th Cir. 2019) (‘‘[w]hether
investigators inform a suspect that he is free to leave
or to refuse to answer questions is the most important
consideration in the Miranda custody analysis’’);
United States v. Ollie, 442 F.3d 1135, 1138 (8th Cir.
2006) (Advisement provided to the defendant, that he
was not under arrest, somewhat mitigated custodial
nature of the interview, but ‘‘an explicit assertion that
the person may end the encounter is stronger medicine.
Such a statement provides an individual with a clear
understanding of his or her rights and generally removes
any custodial trappings from the questioning.’’).
Despite those repeated advisements, the defendant
chose to remain. Indeed, not once during the interroga-
tion did the defendant ask to leave. See, e.g., State v.
Lapointe, 237 Conn. 694, 727, 678 A.2d 942 (defendant’s
failure to ask to leave weighed against finding of cus-
tody), cert. denied, 519 U.S. 994, 117 S. Ct. 484, 136 L.
Ed. 2d 378 (1996). We agree with the United States
Court of Appeals for the Eighth Circuit, which observed:
‘‘Against a backdrop of repeated advice that he was
free to terminate the interview, [a defendant’s] decision
not to terminate the interview and to allow the interview
to proceed to its closing suggests an exercise of free
will, rather than restraint to a degree associated with
formal arrest.’’ United States v. Czichray, 378 F.3d 822,
829 (8th Cir. 2004), cert. denied, 544 U.S. 1060, 125 S.
Ct. 2514, 161 L. Ed. 2d 1109 (2005).
Certainly, if LaMaine had informed the defendant at
the outset of the interrogation that he was not under
arrest or that he was free to leave, these advisements
would have weighed even more heavily in favor of con-
cluding that the defendant was not in custody.16 By the
time that LaMaine first informed the defendant that he
was free to leave, the defendant already had implicated
himself by claiming, in direct contradiction to his earlier
representations, that he drove past the crime scene
within minutes of the shooting. We appreciate that the
provision of these advisements would have been even
more effective had the police officers given them at the
start of the interrogation. The timing of these advise-
ments in the present case, however, does not eliminate
the powerful effect of LaMaine’s direct advisements:
‘‘[y]ou can walk away right now if you want’’; ‘‘[y]ou
can leave right now if you want’’; ‘‘[n]othing you say is
going to get you arrested today’’; and ‘‘[y]ou’re free to
go.’’ Under most circumstances, it would be difficult to
conclude that a reasonable person, upon hearing those
words, would nonetheless feel restrained to a degree
associated with a formal arrest.
Indeed, we note that, although the provision of these
advisements weighs heavily against concluding that a
defendant was in custody for purposes of Miranda, the
failure to provide them, or, as in the present case, a
delay in providing them, does not necessitate the oppo-
site conclusion. This court has, in fact, recognized that,
as long as the facts demonstrate that a reasonable per-
son in the defendant’s position would understand that
his meeting with law enforcement is consensual, a
defendant need not be ‘‘expressly informed that he [is]
free to leave’’ in order for a court to conclude that the
defendant has failed to prove that an interrogation was
custodial. State v. Greenfield, 228 Conn. 62, 72 n.10,
634 A.2d 879 (1993); see, e.g., id., 71–72 n.10 (although
police did not expressly inform defendant that he was
free to leave, trial court could reasonably have found,
given facts of case, that defendant understood that meet-
ing was consensual); see also, e.g., United States v.
Ingino, 845 Fed. Appx. 135, 138 n.1 (3d Cir. 2021)
(‘‘[a]lthough the [state] troopers did not explicitly tell
[the defendant] he was ‘free to leave,’ they did not have
to speak magic words for it to be clear that he was not
under arrest and was free to leave’’).
Drawing the conclusion that an interrogation was
custodial from the failure to advise—or, in the present
case, a delay in advising—a defendant that he is free
to leave or not under arrest misunderstands the two-
pronged nature of the Miranda custody inquiry. As the
United States Supreme Court has explained, to establish
custody, a defendant must prove both that a reasonable
person would not have felt free to terminate the inter-
view or to leave; see Yarborough v. Alvarado, supra, 541
U.S. 663; and that ‘‘there is a formal arrest or restraint
on [the] freedom of movement of the degree associated
with a formal arrest.’’ (Internal quotation marks omit-
ted.) Id., 662. Accordingly, establishing that a reason-
able person would not have felt free to leave is a neces-
sary, but not a sufficient, condition to satisfy the
defendant’s burden of proving that his interrogation
was custodial. See, e.g., Howes v. Fields, supra, 565 U.S.
509 (‘‘[o]ur cases make clear . . . that the freedom-of-
movement test identifies only a necessary and not a
sufficient condition for Miranda custody’’ (internal
quotation marks omitted)); see also, e.g., State v. Pow-
ers, 203 Vt. 388, 405, 157 A.3d 39 (2016) (observing, in
context of interrogation in probation office, that fact
that probationer was not free to leave was necessary,
but not sufficient, condition of custody).
Indeed, the cases in which courts have concluded,
notwithstanding law enforcement officers’ statements
to a defendant that he was free to leave, that a defendant
was subjected to custodial interrogation, typically have
involved extreme circumstances that compelled the
conclusion that the defendant was in custody; none of
which exist in the present case.17 See, e.g., United States
v. Newton, 369 F.3d 659, 675–77 (2d Cir.) (defendant
was in custody, despite being told that he was not under
arrest, when he was handcuffed after six law enforce-
ment officers entered his apartment and he remained
handcuffed during entire interrogation), cert. denied,
543 U.S. 947, 125 S. Ct. 371, 160 L. Ed. 2d 262 (2004);
see also, e.g., United States v. McKany, 649 Fed. Appx.
553, 554–55 (9th Cir. 2016) (defendant was in custody
at time of interrogation, notwithstanding being told he
was free to leave or to terminate interview, when law
enforcement officers entered his home at 6:30 a.m. in
full tactical gear and with weapons drawn, fourteen
officers were ultimately involved in executing search
warrant, and defendant was handcuffed and escorted
to bathroom prior to interrogation and then isolated
from others during interrogation).
In the present case, at the end of the interrogation,
consistent with the repeated advisements that he was
free to leave, the defendant left without being placed
under arrest. This fact weighs against the conclusion
that the defendant was restrained to the degree associ-
ated with a formal arrest. See, e.g., United States v.
Galceran, supra, 301 F.3d 931 (‘‘[l]ack of arrest is a
‘very important’ factor weighing against custody’’). The
United States Supreme Court has explained why this
particular factor is relevant to the custody inquiry: the
‘‘release of the [suspect] at the end of the questioning’’
is one of the factors relevant to the determination of
how a suspect would have gauged his freedom of move-
ment—that factor, therefore, bears on whether a rea-
sonable person would have felt free to leave during the
interview. Howes v. Fields, supra, 565 U.S. 509; see
also, e.g., Oregon v. Mathiason, supra, 429 U.S. 495(defendant was not in custody when, ‘‘[a]t the close of
a [one-half hour] interview [the defendant] did in fact
leave the police station without hindrance’’). Indeed,
this court also has considered the fact that a defendant
was permitted to leave at the conclusion of an interroga-
tion as a factor weighing against a finding that the
defendant was in custody. State v. Lapointe, supra, 237
Conn. 727, 733–34 (fact that defendant was allowed to
leave upon completion of interviews, which lasted for
more than eight hours, weighed against finding of cus-
tody).18
Because the police initiated the encounter, the fourth
Mangual factor weighs modestly in favor of a conclu-
sion that the defendant was in custody. Its weight is
undercut, however, by the defendant’s acquiescence to
the meeting. Specifically, although the police initiated
the encounter by making arrangements with the proba-
tion office and no one informed the defendant in
advance that the individuals waiting for him were mem-
bers of law enforcement, the defendant was not ordered
to meet with them, and, when he discovered that the
individuals were police officers, he chose to stay.
Calixte testified that, although she could not recall the
precise words she used, she disagreed that the sub-
stance of what she said to the defendant was: ‘‘[C]ome
with me, you’re going to see my supervisor now.’’
Instead, she testified that she ‘‘basically let him know
the office visit was concluded. We were done, and we
were walking downstairs, but, if he had a moment, he
[could] speak to someone else who would like to talk
to him.’’ The defendant accompanied Calixte, then
Bunosso, to Bunosso’s office, where LaMaine and Curet
waited. There is no evidence in the record that the
defendant objected to accompanying Calixte to Bunosso’s
office.
What is clear on this record is that Calixte did not
order the defendant to meet with the individuals who
waited for him. The lack of coercion in the language
that Calixte used to ask the defendant if he was willing
to attend the meeting supports the conclusion that a
reasonable person in the defendant’s position would
not have felt restrained to a degree associated with a
formal arrest.19 See, e.g., Howes v. Fields, supra, 565
U.S. 514 (language used to summon defendant is signifi-
cant in custody analysis); see also, e.g., United States
v. Ruggles, supra, 70 F.3d 265 (probation officer’s failure
to tell defendant that he was obligated to speak with
law enforcement officials weighed against concluding
that defendant was in custody). We believe that the
language that Calixte used to frame the defendant’s
options more than offsets the failure to inform him that
the individuals waiting for him were members of law
enforcement. See, e.g., United States v. Edrington, supra,
851 Fed. Appx. 577 (probation officer’s lie in sum-
moning defendant to interrogation with federal agents
‘‘weigh[ed] only modestly in favor of custody’’ (internal
quotation marks omitted)); see also, e.g., United States
v. Guerrier, supra, 669 F.3d 4–6 (defendant was not in
custody when members of law enforcement ‘‘camped
outside’’ probation officer’s office during defendant’s
regular meeting but defendant ‘‘expressed no qualms
about talking with them’’).20
The fifth Mangual factor, the location of the inter-
view, also provides some support for the defendant’s
contention that he was in custody. As we observed, the
questioning took place inside the building where the
probation office is located. In arguing that he was in
custody during the interrogation, the defendant relies
on both the secure nature of the building and the
requirements imposed on him as a probationer, namely,
that he was required to meet with his probation officer
and to comply with her orders.
Regarding the secure nature of the building, we
already noted that, although the record is clear that, in
order to enter the building, as well as the individual
secured areas, the defendant needed to be escorted,
the defendant failed to demonstrate, as was his burden,
that there were any limitations placed on his ability to
leave the secured areas of the building or the building
itself. That is, there is no evidence in the record that
the defendant had to be escorted out of the secured areas
or out of the building itself. Nor did the defendant produce
any evidence regarding the size of Bunosso’s office, or
the size and structure of the surrounding area.21
Although the defendant’s status as a probationer who
was questioned in the probation office may have con-
tributed to the coercive aspects of the interrogation, it
does not transform a noncustodial interrogation into a
custodial one. This precise contention has already been
addressed by the United States Supreme Court and has
been expressly rejected by that court and nearly every
other court that has addressed this issue. In Minnesota
v. Murphy, supra, 465 U.S. 420, the United States Supreme
Court considered the significance, in the Miranda cus-
tody analysis, of the locus of an interrogation in a proba-
tion office. See id., 431–34. The court began by empha-
sizing the narrow scope of the concept of custody for
purposes of Miranda. That is, in the absence of a ‘‘for-
mal arrest or restraint on freedom of movement of the
degree associated with a formal arrest,’’ a suspect is not
in custody for purposes of Miranda. (Internal quotation
marks omitted.) Id., 430. The court likened a probation-
er’s obligation to appear and be truthful to that of a
grand jury witness. Id., 431. The grand jury witness, the
court observed, is subject to more intimidating pressure
than a probationer, yet the court has never held that
Miranda warnings must be provided to a grand jury
witness. Id. The mere concern that terminating the inter-
view may result in the revocation of probation, the
court added, does not render the interview custodial.
See id., 433. That type and level of pressure are ‘‘not
comparable to the pressure on a suspect who is pain-
fully aware that he literally cannot escape a persistent
custodial interrogator.’’ Id. Finally, the court observed
that, because a probationer attends meetings regularly,
over time, a probation office, in contrast to a police
station, constitutes familiar surroundings and that famil-
iarity provides some insulation from the ‘‘psychological
intimidation’’ that characterizes a custodial interroga-
tion. Id.In the wake of Murphy, the vast majority of decisions
from United States courts of appeals considering
whether an interrogation conducted in a probation
office or involving a probation or parole officer was
custodial have answered that question in the negative.
See, e.g., United States v. Edrington, supra, 851 Fed.
Appx. 576–78 (defendant was not in custody when pro-
bation officer directed him to report to probation office,
where defendant was interrogated for fifteen to twenty
minutes by federal agents); United States v. Ingino,
supra, 845 Fed. Appx. 137–38 (defendant was not in
custody during thirty minute interrogation in probation
office by two state troopers, following mandatory meet-
ing with probation officer, when defendant was told he
was not under arrest and troopers did not use overt
coercion); United States v. Guerrier, supra, 669 F.3d
4–6 (defendant was not in custody when he was interro-
gated by two law enforcement officers for twenty to
twenty-five minutes in unmarked police car, in presence
of parole officer, following regularly scheduled meeting
with parole officer); United States v. Aldridge, 664 F.3d
705, 709, 711–12 (8th Cir. 2011) (defendant was not in
custody when ordered by probation officer to report
to courthouse, where he agreed to be questioned by
federal agents, and trial court did not clearly err in
finding that defendant acquiesced to questioning);
United States v. Rainey, 404 Fed. Appx. 46, 55–56 (7th
Cir. 2010) (defendant was not in custody when proba-
tion officer and detective brought defendant to proba-
tion office, then detectives interrogated her for sixty to
ninety minutes), cert. denied sub nom. Cobb v. United
States, 562 U.S. 1236, 131 S. Ct. 1512, 179 L. Ed. 2d 335(2011), and cert. denied, 563 U.S. 950, 131 S. Ct. 2127,
179 L. Ed. 2d 917 (2011); United States v. Cranley, 350
F.3d 617, 618–19 (7th Cir. 2003) (interrogation by federal
agent in probation office was not custodial); United
States v. Howard, 115 F.3d 1151, 1154–55 (4th Cir. 1997)
(defendant was not in custody when federal agents met
him at airport, and he agreed to accompany them to
probation office for questioning, insofar as, although
there was no indication that defendant was told he was
free to leave or not under arrest, agents did not handcuff
or otherwise restrain defendant or restrict his use of
phone); United States v. Ruggles, supra, 70 F.3d 264(defendant was not in custody when probation officer
scheduled same day meeting at probation office upon
request of federal agent, and defendant was told ‘‘that
he was free to leave, that he was not under arrest, and
that he did not have to speak’’ to law enforcement
officials).
Notwithstanding this overwhelming majority of
cases, the dissent relies on the only two decisions in
which courts concluded that the nexus between a defen-
dant’s interrogation and his probation status demon-
strated that he was in custody for purposes of Miranda.
Each case is easily distinguishable from the present
case. Both relied on the fact that the defendant’s failure
to report for questioning would have resulted in a viola-
tion of probation. See United States v. Barnes, 713
F.3d 1200, 1204–1205 (9th Cir. 2013) (defendant was in
custody when federal agents interrogated him during
specially scheduled, mandatory parole meeting at pro-
bation office); United States v. Ollie, supra, 442 F.3d
1138–40 (defendant was in custody when parole officer
ordered him to report for questioning by police chief
in police station, defendant testified that he felt obli-
gated to follow parole officer’s order, and defendant
did not acquiesce to questioning, insofar as his failure
to comply would have been violation of parole).
In contrast to both Barnes and Ollie, in the present
case, the defendant was not ordered to meet with law
enforcement officers for questioning, and the ques-
tioning occurred only after his mandated meeting with
his probation officer had ended. Indeed, there is no
evidence in the present case that Calixte ever directed
the defendant to attend the meeting or that she told
the defendant that his probation would be violated if
he refused to attend the meeting. Accordingly, we con-
clude that a reasonable person, under those circum-
stances, would not have believed that refusing to meet
with the police officers would result in a violation of
his probation.
One of the leading cases in this area, United States
v. Cranley, supra, 350 F.3d 617, shares many factual
circumstances with the present case. The court in Cran-
ley concluded that, although the interrogation of the
defendant, a probationer, occurred in a coercive atmo-
sphere—the probation office—the interrogation was
not custodial. Id., 618–19. The defendant’s terms of pro-
bation required him to report to his probation officer as
directed, for both scheduled and unscheduled meetings,
and to provide truthful responses to inquiries by his
probation officer. Id., 618. At the request of a federal
agent, the defendant’s probation officer scheduled a
meeting with the defendant, so that the agent could
question the defendant regarding several guns that the
agent had traced to the defendant. Id. The probation
officer was present during the one hour interrogation.
Id., 619. As in the present case, the interrogation took
place in a secure area. Id. Subsequently, the agent met
for a second time with the defendant in the same loca-
tion, this time outside the presence of the probation
officer and for at least ninety minutes. Id. At the conclu-
sion of both interviews, the defendant was permitted
to leave. See id.The court recognized that the atmosphere in the pro-
bation office was coercive; see id.; but concluded that
the facts of the case, as we have summarized them in
the preceding paragraph, lacked the ‘‘usual indications
of police custody . . . .’’ (Citations omitted.) Id., 620.
The court also noted that, like the defendant in the
present case, the defendant in Cranley failed to estab-
lish the character of the building, that is, whether the
probation office shared the building with other offices
unrelated to law enforcement, which would ‘‘mut[e] the
impression that the probation service is a branch of the
state correctional authority,’’ or, by contrast, with a
courthouse, a jail or police station. Id., 619–20. The
court in Cranley considered it significant that the defen-
dant had not asked whether he was under arrest or free
to leave. See id., 620. Had he done so, the court stated,
‘‘we would know from the answer whether he was in
custody.’’ Id. Given these gaps in the record, the court
concluded, Minnesota v. Murphy, supra, 465 U.S. 433,
and the ‘‘long list of cases’’ applying Murphy, controlled
and precluded a conclusion that the defendant was in
custody. United States v. Cranley, supra, 350 F.3d 620.
A comparison of the facts of the present case and
those presented in Cranley demonstrates that the facts
in Cranley weighed more heavily in favor of a finding
of custody than those in the present case. Specifically,
in Cranley, there was no indication that the defendant
was ever informed either that he was free to leave or
that he was not under arrest. In fact, the court noted
that, before one of the two meetings, the probation
officer reminded the defendant of his obligation to
answer questions truthfully. Id., 619.
Regarding the absence, in the record, of any evidence
that the defendant had been told he was free to leave
or was not under arrest, the court observed that the
defendant could have ‘‘asked the [federal] agent, when
the questioning got hot, ‘[a]m I under arrest or am I
free to leave?’ Had he done that we would know from
the answer whether he was in custody. His failure to
ask, given the location of the interview and the absence
of the usual indications of police custody, precludes a
finding of custody, in light of such cases as Minnesota
v. Murphy, [supra, 465 U.S. 433]; United States v. Hum-
phrey, [34 F.3d 551, 554 (7th Cir. 1994)]; United States
v. Hayden, 260 F.3d 1062, 1066–67 (9th Cir. 2001) [cert.
denied, 534 U.S. 1151, 122 S. Ct. 1117, 151 L. Ed. 2d
1011 (2002)]; United States v. Howard, [supra, 115 F.3d
1154–55]; United States v. Nieblas, 115 F.3d 703, [704–
705] (9th Cir. 1997); and United States v. Ruggles,
[supra, 70 F.3d 264–65], all closely in point.’’ United
States v. Cranley, supra, 350 F.3d 620.22
In the present case, the defendant contends that the
seizure of his cell phone demonstrates that the tenth
Mangual factor, the degree to which he was isolated
from friends, family and the public, weighs in favor
of finding that he was in custody. We disagree. The
defendant’s reliance on this argument fails because he
did not establish that the cell phone was seized prior
to the final few minutes of the interrogation, when
LaMaine announced the seizure. In fact, the record dem-
onstrates that halfway through the interrogation, upon
LaMaine’s request, the defendant searched his phone
for information on Outlaw. There is no evidence that
the defendant was prevented from using the phone in
his possession to send text messages to anyone or even
to call anyone. The evidence in the record demonstrates
that it was not until the end of the interrogation that
LaMaine informed the defendant that, because he had
provided Outlaw’s phone number from his contacts on
his cell phone, and because he had communicated with
Outlaw on the phone, they were seizing the phone as
part of the ongoing investigation. The defendant’s sug-
gestion that the deprivation of his phone supports his
contention that a reasonable person would not have
felt free to leave under those circumstances is belied
by the fact that, within minutes after the seizure, he left.
Despite our conclusion that the seizure of the defen-
dant’s cell phone does not weigh in favor of finding
that he was in custody, we recognize that many aspects
of the tenth Mangual factor weigh in favor of a finding
that the defendant was in custody. Specifically, the
police officers chose the probation office as the location
of the interrogation. Therefore, to the extent that the
interrogation took place in a secure area, the police took
actions that resulted in the defendant’s being isolated
during the interrogation. The weight of these facts is
offset, however, by two other facts. First, the defendant
was familiar with the probation office. Second, the
defendant failed to introduce evidence regarding the
character of the building—whether the probation office
occupied the entire building or shared space with other
offices unrelated to law enforcement. See id., 619–20
(relying on defendant’s failure to establish character of
building where probation office was located in analysis
and concluding that interview was noncustodial).
In summary, evaluating the totality of the circum-
stances, we conclude that the defendant has failed to
establish both that a reasonable person in his position
would not have felt free to leave and, most important,
that there was a restraint on his freedom of movement
of the degree associated with a formal arrest. The defen-
dant was not ordered to meet with the police officers;
nor was his probationary status threatened. The officers
used no physical force or restraint. The defendant failed
to establish that he was unable to leave the office with-
out assistance, and he failed to prove that the officers
denied him access to his phone prior to its seizure in
the final moments of the interrogation. He was told
repeatedly that he was not under arrest and was free
to leave, yet the defendant continued to talk freely with
LaMaine after being so advised. And the defendant did
leave—without being placed under arrest.
Accordingly, we conclude that the trial court cor-
rectly determined that the defendant was not in custody
during the first interview. Because the defendant’s chal-
lenge to the trial court’s denial of his motion to suppress
the statements that he made during the second inter-
view is predicated on his claim that he was in custody
during the first interview, that challenge fails as well.
Indeed, because the first interview was not custodial,
the trial court correctly concluded that Missouri v.
Seibert, supra, 542 U.S. 600, was inapplicable to the
second interview. See id., 604 (opinion announcing
judgment) (identifying issue presented as testing of ‘‘a
police protocol for custodial interrogation that calls for
giving no warnings of the rights to silence and counsel
until interrogation has produced a confession’’); United
States v. Familetti, 878 F.3d 53, 62 (2d Cir. 2017) (declin-
ing to reach defendant’s claim based on Seibert because
defendant ‘‘was not subject to a [prewarning] custodial
interrogation’’).
The judgment is affirmed.
In this opinion ROBINSON, C. J., and KELLER and
BRIGHT, Js., concurred.
* This case originally was argued before a panel of this court consisting
of Chief Justice Robinson and Justices McDonald, D’Auria, Mullins, Kahn,
Ecker and Keller. Thereafter, Justice Kahn was removed from the panel,
and Chief Judge Bright was added to the panel. He has read the briefs
and appendices, and listened to a recording of the oral argument prior to
participating in this opinion.
** December 30, 2022, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
The defendant appealed directly to this court pursuant to General Stat-
utes § 51-199 (b) (3).
2
The trial court granted the defendant’s motion to suppress the statements
that he made during a third interview, on the basis that, after the defendant
made statements that were ambiguous as to whether he was invoking his
right to counsel, the police did not attempt to clarify those statements and,
instead, continued questioning him. See State v. Purcell, 331 Conn. 318, 321,
203 A.3d 542 (2019) (holding that article first, § 8, of Connecticut constitution
requires that law enforcement personnel clarify ambiguous requests for
counsel before continuing interrogation).
3
The defendant contends that the trial court’s denial of his motion to
suppress the statements that he made during the first two interviews violated
his rights under article first, §§ 8 and 9, of the Connecticut constitution.
‘‘[B]ecause the defendant has not provided an independent analysis of his
state constitutional claim under State v. Geisler, 222 Conn. 672, 684–86, 610
A.2d 1225 (1992), we consider that claim abandoned and unreviewable.’’
(Internal quotation marks omitted.) State v. Rivera, 335 Conn. 720, 725 n.2,
240 A.3d 1039 (2020).
4
We note that ‘‘we review the record in its entirety to determine whether
a defendant’s constitutional rights were infringed by the denial of a motion
to suppress.’’ State v. Kendrick, 314 Conn. 212, 218 n.6, 100 A.3d 821 (2014);
see, e.g., State v. Fields, 265 Conn. 184, 191, 827 A.2d 690 (2003) (‘‘record
on review of ruling on pretrial motion to suppress includes evidence adduced
at trial’’); see also, e.g., State v. Toste, 198 Conn. 573, 576, 504 A.2d 1036 (1986).
5
The state also charged the defendant with carrying a pistol without a
permit in violation of General Statutes (Supp. 2016) § 29-35 (a). After the
conclusion of evidence, but prior to jury deliberations, the trial court granted
the defendant’s motion for a judgment of acquittal as to that charge.
6
See, e.g., State v. Griffin, 339 Conn. 631, 655 n.12, 262 A.3d 44 (2021)
(‘‘Appellate review of the trial court’s resolution of a constitutional claim
is not limited to the facts the trial court actually found in its decision on
the defendant’s motion to suppress. Rather, [this court] may also consider
undisputed facts established in the record, including the evidence presented
at trial.’’ (Internal quotation marks omitted.)), cert. denied, U.S. ,
142 S. Ct. 873, 211 L. Ed. 2d 575 (2022).
7
The record is unclear as to whether the probation office occupies the
entire building, or, if it does not, what other agencies or offices share the
building with the probation office.
8
The record is unclear regarding whether Bunosso informed Calixte in
advance about the individuals who were waiting to speak to the defendant
and whether he told her that they were members of law enforcement. The
testimony of Calixte and Bunosso is somewhat inconsistent on these points.
Calixte testified that she learned about the individuals only at the end of
her meeting with the defendant, as she was ‘‘wrapping up . . . .’’ She also
testified that she could not recall whether Bunosso informed her at that
time that they were members of law enforcement. All she could say with
certainty was that, after the fact, she knew that the individuals who had
been waiting to speak to the defendant were police officers.
Bunosso testified that, on February 15, 2016, one day prior to Calixte’s
meeting with the defendant, he had contacted her to find out the date of the
defendant’s next meeting. According to Bunosso, during that conversation,
consistent with his usual practice in such circumstances, he informed Calixte
that the police wished to speak with the defendant afterward. Bunosso
also testified that, when the defendant reported for his February 16, 2016
probation meeting, Bunosso informed Calixte that police officers wished
to speak to the defendant after that meeting was finished.
In any event, whether Calixte intentionally withheld information from the
defendant or was provided with incomplete information is irrelevant to the
question of whether the defendant was in custody in the present case. It is
undisputed that Calixte did not inform the defendant in advance that the
individuals who waited for him were members of law enforcement. Regard-
less of who withheld that information from whom, the request to the defen-
dant to meet with the law enforcement officers did not inform him of all
the relevant information. In our analysis, we discuss the significance of that
failure to inform the defendant of the identity of the individuals waiting to
speak with him.
9
At this juncture, the record reveals somewhat ambiguous testimony from
Calixte regarding whether, after telling the defendant that the probation
meeting was over, she took the additional step of also telling him, in specific
terms, that he had a choice whether to attend the meeting. Specifically,
during cross-examination at the suppression hearing, Calixte stated that she
did not tell the defendant, ‘‘you’re going to see my supervisor now.’’ Instead,
as she recalled:
‘‘[Calixte]: I basically let [the defendant] know the office visit was con-
cluded. We were done, and we were walking downstairs, but, if he had a
moment, he [could] speak to someone else who would like to talk to him.
‘‘[Defense Counsel]: Do you recall whether . . . you gave [the defendant]
any choice to—to not—
‘‘[Calixte]: There’s always a choice. Of course, I gave him a choice.
‘‘[Defense Counsel]: You told him . . . I’m going to take you downstairs
now, okay. My supervisor wants to see you, but you don’t have to see my
supervisor. Is that your recollection?
‘‘[Calixte]: I don’t recall. I don’t recall.’’ (Emphasis added.)
Although the record reflects that Calixte testified literally that she gave
the defendant a choice, because the preceding question was cut off and the
follow-up answer to the next question was ‘‘I don’t recall,’’ there is some
ambiguity as to whether Calixte’s testimony reflects that she affirmatively
told the defendant that he had a choice to attend the meeting. In any event,
because the record does not reflect that Calixte in any way coerced the
defendant to attend the meeting, her testimony, as a whole, supports our
conclusion that the defendant was not forced to attend the meeting.
10
Because of the defendant’s claim, the officers seized his coat.
11
Any doubt regarding whether the court in Howes, by referring to the
‘‘type of station house questioning at issue in Miranda’’; Howes v. Fields,
supra, 565 U.S. 509; referred to an inquiry as to whether the petitioner was
restrained to a degree associated with a formal arrest is resolved by referring
to the Miranda decision itself, which summarized the circumstances of the
petitioners in the cases that were before the court in that appeal. Specifically,
Ernesto Miranda was arrested, then taken to the police station, where he
was interrogated. Miranda v. Arizona, supra, 384 U.S. 491. Although Michael
Vignera was not arrested prior to the start of his interrogation, he was
initially picked up by the police, brought in for questioning, placed under
formal arrest during the course of the interrogation, then transferred to
another precinct, where the interrogation continued. Id., 493. Carl Calvin
Westover was arrested, placed in a lineup, booked, and then detained and
interrogated over the course of two days. Id., 494–95. Finally, Roy Allen
Stewart was arrested at his home, consented to a search of the home, jailed
(along with his wife and three other persons who were visiting his home
at the time), and interrogated over the course of five days. Id., 497.
12
Two premises underlying the dissent’s argument are contrary to the
legal principles that govern the custody analysis. First, the dissent presumes
that, because there were some coercive aspects of this interrogation, the
defendant was in custody. Second, the dissent devotes little of its analysis
to the ultimate inquiry of whether there was a formal arrest or restraint to
a degree associated with a formal arrest and, instead, treats the initial
inquiry, whether a reasonable person would have felt free to leave, as
sufficient to establish that the defendant was in custody. Essentially, the
dissent inappropriately collapses the free to leave inquiry with the restraint
to the degree associated with a formal arrest inquiry. See, e.g., Berkemer
v. McCarty, supra, 468 U.S. 435–37, 440 (declining to accord free to leave
inquiry ‘‘talismanic power’’ and holding, instead, that Miranda safeguards
are triggered when suspect’s freedom is curtailed to degree associated with
formal arrest); People v. Begay, 325 P.3d 1026, 1029–30 (Colo. 2014) (‘‘Under
the [f]ourth [a]mendment, a seizure occurs when a reasonable person would
not have felt free to leave or otherwise terminate an encounter with law
enforcement. . . . [W]hat constitutes custody for Miranda is narrower than
what constitutes a seizure . . . . [T]he [Miranda] question is not whether
a reasonable person would believe he was not free to leave, but rather
whether such a person would believe he was in police custody of the degree
associated with a formal arrest.’’ (Citations omitted; emphasis in original;
internal quotation marks omitted.)); see also, e.g., 2 W. LaFave et al., Criminal
Procedure (4th Ed. 2015) § 6.6 (c), pp. 810–11.
The dissent’s discussion of the police officers’ threats to arrest the defen-
dant at some point in the future illustrates these flaws in its analysis. The
dissent claims: ‘‘It cannot seriously be maintained that a threat by the interro-
gating officers to arrest a suspect in the near future, but not right now,
unless the suspect remains and answers questions will have no significant
impact on the person’s perception that he is truly free to leave.’’ Although
such threats may have an effect on a reasonable person’s perception that
he is free to leave, overemphasizing those threats suggests that the answer
to the free to leave prong of the custody inquiry is dispositive of the question
of whether the restraint on the defendant was to the heightened degree
necessary for custody. Concluding that the defendant was restrained to a
degree associated with a formal arrest because the officers threatened to
seek a warrant for his future arrest simply cannot be squared with the facts
that he was not ordered to report to the meeting, he was told repeatedly that
he could leave, he was not handcuffed or otherwise physically restrained,
the interrogation was cordial, and the officers allowed him to scroll through
his phone during the interrogation. Indeed, in this particular case, at no
point during the interview did either LaMaine or Curet suggest that the
defendant would be placed under arrest as an immediate and direct conse-
quence of terminating the interview. In fact, they made the opposite quite
clear. Specifically, LaMaine told the defendant, ‘‘[n]othing you say is going
to get you arrested today,’’ and that, if he wanted to, he could ‘‘walk away
right now . . . .’’ They informed the defendant—seven separate times—
either that he was free to leave or that he was not under arrest. Those
advisements weigh heavily against a conclusion that a reasonable person
would have felt that he was restrained to a degree associated with a for-
mal arrest.
13
The dissent acknowledges that the defendant failed to produce any
evidence either that Calixte ordered the defendant to attend the meeting
with the police officers or that she threatened him with a violation of
probation if he refused. Contrary both to applicable precedent and the
allocation of the burden of proof, the dissent reasons that, because the
record is ambiguous as to whether Calixte informed the defendant that he
was not required to attend, we should infer that a reasonable person in the
defendant’s position would have believed that she commanded him to attend
the meeting. As we explained, the defendant bears the burden of proving
custody. State v. Jackson, supra, 304 Conn. 417. It defies logic, when con-
fronted with an ambiguous record, to draw the inference favorable to the
party who bears the burden of proof.
Furthermore, controlling precedent is clear—because ‘‘the [s]tate could
not constitutionally carry out a threat to revoke probation for the legitimate
exercise of the [f]ifth [a]mendment privilege,’’ in the absence of an order
from his probation officer, a probationer’s fear of revocation of probation for
‘‘refusing to answer questions calling for information that would incriminate
[him or her] in separate criminal proceedings’’ is unreasonable and, there-
fore, does not support the inference that the probationer was coerced.
Minnesota v. Murphy, supra, 465 U.S. 438. Following Murphy, the United
States courts of appeals have held that, without more, the mere fact that
a probation officer requested a defendant to attend a meeting with law
enforcement officers does not render an interrogation custodial. Compare
United States v. Cranley, 350 F.3d 617, 618–19 (7th Cir. 2003) (interrogation
by federal agent at probation office, arranged by probation officer, was not
custodial), with United States v. Ollie, 442 F.3d 1135, 1138, 1140 (8th Cir.
2006) (defendant was in custody when parole officer ordered him to report
for questioning by police chief in police station, and parole officer testified
that defendant’s failure to comply would have been violation of parole).
14
Contrary to the dissent’s suggestion, we do not apply these factors as
a mechanical test, the satisfaction of which automatically satisfies custody.
Indeed, as we pointed out, we have little difficulty applying the general
principles laid out by the United States Supreme Court and concluding that
the defendant has not demonstrated that the circumstances here rose to
the level of restraint associated with a formal arrest. Still, we find that
reviewing the Mangual factors helps to provide a more fulsome examination
of the circumstances of the first interrogation.
15
We fully appreciate that there may be circumstances in which the pres-
ence of two law enforcement officers could weigh in favor of finding that
a defendant was in custody. As with every factor in the custody inquiry,
however, the defendant bears the burden of proving that the number of
officers present weighs in favor of a custody finding. The defendant has
not, however, demonstrated that the room was particularly small, that the
officers flanked him, stood over him, or sat overly close to him, or that the
two officers somehow used their numbers to restrict his movements in any
way. In the absence of any such showing, we conclude that the rather routine
number—two law enforcement officers—weighs against a conclusion that
the defendant was in custody. See, e.g., United States v. Woody, 45 F.4th
1166, 1175 (10th Cir. 2022) (presence of two officers, without more, was
insufficient to demonstrate that reasonable person would not have felt free
to decline to speak with officers); State v. Castillo, 329 Conn. 311, 333, 186
A.3d 672 (2018) (rejecting defendant’s contention that presence of three
officers in his living room weighed in favor of concluding that he was
in custody).
16
We disagree with the dissent’s suggestion that the delay in advising the
defendant that he was free to leave and was not under arrest until after he
had incriminated himself is somehow analogous to the midstream Miranda
warnings condemned in Missouri v. Seibert, supra, 542 U.S. 604 (opinion
announcing judgment), and that the police officers’ advisements to the
defendant that he was free to leave therefore have no place in the custody
analysis in the present case because they ‘‘fail to convey to a suspect that
he has a choice regarding his participation in the interrogation.’’ The dissent
has cited no support for this proposition. Our case law supports the opposite
conclusion. Two cases in particular are instructive.
In State v. Pinder, supra, 250 Conn. 385, this court rejected the defendant’s
claim that the admission of inculpatory statements he made to polygraph
examiners violated his fifth amendment right against self-incrimination
under Miranda. Id., 408. Specifically relevant to the present case, the defen-
dant in Pinder contended that, after he told examiners that he had assisted
the victim in committing suicide, he was in custody for purposes of Miranda.
See id., 414. This court rejected that argument, emphasizing that the examin-
ers did not, in response to the defendant’s inculpatory statement, ‘‘[alter]
the circumstances of their interviews of the defendant in such a way that
his initial noncustodial status became custodial.’’ (Internal quotation marks
omitted.) Id., 415–16; see also State v. Lapointe, supra, 237 Conn. 727 (defen-
dant’s statements implicating himself in crime did not render interviews
custodial because police did not alter circumstances of interviews following
his admissions).
Similar to Pinder and Lapointe, in the present case, the police officers
did not alter the circumstances of the interview following the defendant’s
incriminating statements. In fact, they informed him that he was free to
leave or that he was not under arrest—seven times. The dissent’s argument
that, after he made incriminating statements, the defendant may not have
felt free to leave because, in effect, the cat was out of the bag, misses the
point of the custody inquiry. The question is not whether the defendant
deemed it a good strategic decision to leave. Rather, the question is whether
a reasonable person in the defendant’s position would have believed that
his freedom of movement was constrained to the degree associated with a
formal arrest.
17
The dissent asserts that ‘‘free to leave advisements must be assessed
in light of the surrounding circumstances . . . .’’ Footnote 11 of the dis-
senting opinion. We agree and have done so. The dissent’s attempt to deem
the advisements in the present case ineffectual, however, cannot be squared
with even the precedent it cites for that proposition. Specifically, the deci-
sions cited by the dissent illustrate that the circumstances in the present
case do not involve the type of extreme circumstances under which courts
have concluded that, notwithstanding law enforcement officers’ advisement
to a defendant that he was free to leave, the interrogation was nevertheless
custodial. See United States v. Hashime, 734 F.3d 278, 284 (4th Cir. 2013)
(The defendant was in custody despite being told by the police that he was
free to leave, when the defendant ‘‘had awoken at gunpoint to a harrowing
scene: his house was occupied by a flood of armed officers who proceeded
to evict him and his family and restrict their movements once let back
inside. Throughout the interrogation, [the defendant] was isolated from his
family members, with his mother’s repeated requests to see him denied.’’);
United States v. Craighead, 539 F.3d 1073, 1078, 1087–89 (9th Cir. 2008)
(defendant was in custody despite being told that he was free to leave when
eight armed law enforcement officers wearing flak jackets, some of whom
unholstered their weapons, executed search warrant for defendant’s home
while defendant was interrogated in storage room with closed door, guarded
by law enforcement officer).
18
We acknowledge the tension with placing significant weight on this
factor given that a suspect may not know at the outset of or during a
particular interrogation whether he will be permitted to leave at the end of
the interrogation. However, both the United States Supreme Court and this
court have considered this factor in the totality of the circumstances that
bear on a custody determination. Thus, although we do not place great
weight on this factor, we nevertheless consider it in accordance with long-
standing, established precedent in this area.
19
We disagree with the defendant’s contention that, because Calixte was
his probation officer, even if she expressly told him he had a choice, the
‘‘choice’’ would be meaningless due to her authority over him and the
possible ‘‘repercussions’’ of making a wrong choice. (Internal quotation
marks omitted.) First, we note that Calixte testified that, before she informed
the defendant that there were people waiting to speak to him, if he had
time, she told him that their mandatory meeting was finished. Second, as
we explain in this opinion, in Minnesota v. Murphy, supra, 465 U.S. 420,
the United States Supreme Court rejected the proposition that the pressure
associated with the mere possibility of revocation of probation is ‘‘compara-
ble to the pressure on a suspect who is painfully aware that he literally
cannot escape a persistent custodial interrogator.’’ Id., 433. As we also
explain in this opinion, courts applying Murphy have concluded that the
threat of revocation of probation weighs in favor of finding that a defendant
was in custody only when the probation officer has ordered or directed the
defendant to report to an interrogation. See, e.g., United States v. Ollie,
supra, 442 F.3d 1138–40. The defendant presented no evidence that Calixte
ordered him to meet with anyone after his meeting with her had ended or
that she threatened to report that he had violated his probation if he refused
to do so.
20
We note that, in support of his claim that he was in custody during the
first interview, the defendant also relies on the fact that LaMaine and Curet
misrepresented the evidence against him during the interrogation. The
United States Supreme Court has stated, however, that deceptive interroga-
tion tactics have no bearing on the Miranda custody analysis. Specifically,
in Oregon v. Mathiason, supra, 429 U.S. 492, the United States Supreme
Court observed that the Oregon Supreme Court had found that a police
officer’s false statement that the defendant’s fingerprints had been discov-
ered at the scene of the crime contributed to the coercive environment of
the interview for purposes of Miranda. Id., 495. The United States Supreme
Court resoundingly rejected that proposition, explaining: ‘‘Whatever rele-
vance this fact may have to other issues in the case, it has nothing to do
with whether [the defendant] was in custody for purposes of the Miranda
rule.’’ Id., 495–96.
21
The dissent states that, ‘‘based on the undisputed facts regarding the
extent of security in the building, specifically, the requirement of an escort
from the entrance of the building to the defendant’s meeting with Calixte
and the fact that Calixte escorted the defendant to Bunosso’s office, a
reasonable person in the defendant’s position would have believed that he
could not leave without assistance.’’ Footnote 7 of the dissenting opinion.
The record is silent as to whether he could leave the building unescorted.
Presumably, either Calixte or Bunosso could have resolved this question if
the defendant had asked them. He did not. Accordingly, notwithstanding
the dissent’s assertion, we are neither making any factual findings nor ‘‘con-
clud[ing] with certainty’’ that the defendant was not able to leave the building
unescorted. (Emphasis omitted.) Id. Instead, we allocate the burden where
it belongs—with the defendant. He did not establish that he was unable to
leave without an escort. The lack of clarity in the record does not redound
to his benefit in our assessment of whether he was in custody.
22
Two additional differences between the present case and Cranley fur-
ther demonstrate that the defendant’s interrogation was less coercive than
that of the defendant in Cranley. Unlike the interrogation in the present
case, the first interrogation in Cranley was conducted during the defendant’s
scheduled meeting with his probation officer. See United States v. Cranley,
supra, 350 F.3d 618–19. Therefore, unlike the circumstances in the present
case, in Cranley, the probation officer required the defendant to attend
the meeting with the federal agent. See id., 618. Additionally, because the
probation officer is the person charged with ensuring that a probationer
adheres to the terms of supervised release—one of which, as the defendant
in Cranley was reminded, is to answer any inquiries truthfully—a reasonable
person in that defendant’s position would view the probation officer’s pres-
ence as increasing the pressure not only to answer questions, but also to
answer them truthfully during an interrogation. In the present case, Calixte’s
absence during the defendant’s interrogation by LaMaine and Curet decreased
the coercive aspects of the questioning.