State v. Mangual ( 2014 )

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STATE OF CONNECTICUT v. ADA MANGUAL
(SC 18842)
Rogers, C. J., and Norcott, Palmer, Zarella, Eveleigh and Vertefeuille, Js.*
Argued December 4, 2012—officially released March 4, 2014
Alice Osedach, assistant public defender, for the
appellant (defendant).
Leon F. Dalbec, Jr., senior assistant state’s attorney,
with whom, on the brief, were Brian Preleski, state’s
attorney, and Brett J. Salafia, assistant state’s attorney,
for the appellee (state).
Opinion
PALMER, J. A jury found the defendant, Ada Mangual,
guilty of possession of narcotics with the intent to sell
by a person who is not drug-dependent in violation
of General Statutes § 21a-278 (b), and possession of
narcotics with the intent to sell within 1500 feet of a
public school in violation of General Statutes § 21a-278a
(b), following a police investigation that culminated in
the seizure of a quantity of heroin from the defendant’s
home pursuant to a duly authorized search warrant.
The trial court rendered judgment in accordance with
the jury verdict and imposed a total effective sentence
of eight years imprisonment. On appeal to the Appellate
Court, the defendant challenged, inter alia, the trial
court’s denial of her motion to suppress certain state-
ments, claiming that those statements had been
obtained in violation of her rights under the fifth and
fourteenth amendments to the United States constitu-
tion when a police officer questioned her during the
execution of the search warrant without first advising
her of her rights under Miranda v. Arizona, 384 U.S.
436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).1 The Appellate
Court rejected the defendant’s claim upon concluding
that the trial court properly determined that the defen-
dant was not in custody for purposes of Miranda at
the time of the police questioning and that, as a result,
Miranda warnings were not required. See State v. Man-
gual, 129 Conn. App. 638, 642, 648–49, 21 A.3d 510
(2011). The Appellate Court therefore affirmed the judg-
ment of the trial court; id., 651; and we granted the
defendant’s petition for certification to appeal, limited
to the following issue: ‘‘Did the Appellate Court properly
conclude that the defendant was not in custody for
purposes of Miranda when a police officer interrogated
her during the execution of a search warrant on her
residence?’’ State v. Mangual, 302 Conn. 916, 27 A.3d
368 (2011). We agree with the defendant that she was
in custody when the officer questioned her and, conse-
quently, that the police were required to advise her in
accordance with Miranda. Because we also agree with
the defendant that the Miranda violation was not harm-
less beyond a reasonable doubt, we conclude that the
defendant is entitled to a new trial. We therefore reverse
the judgment of the Appellate Court.
The opinion of the Appellate Court sets forth the
following facts that are relevant to the defendant’s
claim. ‘‘In January, 2008, Officer John Blackmore of
the New Britain [P]olice [D]epartment (department)
received information from a confidential informant that
heroin was being sold from an apartment in a multifam-
ily residence located on North Street in [the city of] New
Britain. After receiving this information, the department
began surveillance of the apartment. In addition to sur-
veillance, the department also used confidential infor-
mants to make three controlled purchases of heroin
from the apartment. On the basis of information gath-
ered from these investigative activities, the department
suspected that three individuals, including a Hispanic
male named ‘Bebo’ and a woman named ‘Ada,’ were
selling heroin from the apartment.
‘‘Blackmore obtained a search and seizure warrant
for the apartment, which the police executed on Febru-
ary 5, 2008. In executing the warrant, Blackmore and
[three] other officers [who were equipped with hand-
guns, tactical vests, and at least one rifle] entered the
multifamily residence and proceeded to the apartment,
while Officer Gerald Hicks . . . and two other uni-
formed officers remained outside. After reaching the
apartment, an officer knocked on the front door and
advised the occupants of the warrant. The defendant
answered the door and allowed the officers [to enter,
some of whom did so with their weapons drawn]. Upon
entry, the officers [removed the defendant’s dog from
the four room apartment and guided] the defendant and
[her three daughters] into the living room area.2 [All
four occupants were ordered to remain on the couch
in the living room and were kept under police observa-
tion for the duration of the search.]
‘‘After the apartment was secured, Hicks [and the
two other officers] proceeded inside. Without issuing
a Miranda warning [or informing the defendant
whether she was under arrest or merely being detained
temporarily until the officers completed the search],
Hicks asked the defendant ‘if there [were] any drugs
or weapons in the apartment.’ ’’ (Footnotes altered.)
State v. Mangual, supra, 129 Conn. App. 640–41. ‘‘The
defendant answered ‘yes’ and informed [Hicks] that
‘[there were] drugs in the bedroom.’ Thereafter, the
defendant led Hicks to her bedroom . . . [where she]
pointed [to a] can of hairspray’’; id., 643; that was
‘‘located on her dresser and stated that it contained
heroin. After removing the can’s false bottom, Hicks
discovered 235 packets of heroin.3 The defendant was
placed under arrest.’’4 (Footnote added.) Id., 641.
Prior to trial, the defendant filed a motion to suppress
her statements in response to Hicks’ inquiry on the
ground that she had not been advised of her Miranda
rights before being questioned.5 After an evidentiary
hearing on the motion, the trial court determined that
the defendant was not in custody when Hicks ques-
tioned her and, consequently, that the police were not
required to issue Miranda warnings. In support of its
brief oral ruling, the trial court stated that, ‘‘although
[the defendant] was confined to a certain area,’’ she
was not handcuffed, and the police ‘‘had every right to
secure the apartment and . . . to ensure their safety
by . . . making everyone stay where they were.’’ In
accordance with this ruling, Hicks was permitted to
testify at trial that the defendant had told him that there
were drugs in her bedroom and that she had led him
to the hairspray can on her dresser that contained those
drugs. The jury subsequently found the defendant guilty
of possession of narcotics with the intent to sell by a
person who is not drug-dependent and possession of
narcotics with the intent to sell within 1500 feet of a
public school.
On appeal to the Appellate Court, the defendant
claimed, inter alia, that the trial court improperly denied
her motion to suppress because she was in custody
when Hicks questioned her without first issuing
Miranda warnings.6 State v. Mangual, supra, 129 Conn.
App. 642. The Appellate Court rejected the defendant’s
claim, concluding that she had not demonstrated, as
Miranda requires, ‘‘that a reasonable person in the
defendant’s position would have believed that she was
in police custody of the degree associated with [a] for-
mal arrest.’’ Id., 647. In reaching this determination, the
Appellate Court observed that Hicks’ questioning was
limited in scope and duration, the defendant was in the
familiar surroundings of her apartment, she was not
restrained physically, and she had not been threatened
or told that she was under arrest. Id., 647–48. The Appel-
late Court also relied on Michigan v. Summers, 452
U.S. 692, 101 S. Ct. 2587, 69 L. Ed. 2d 340 (1981); see
State v. Mangual, supra, 648; in which the United States
Supreme Court held that, for purposes of the fourth
amendment, police executing a search warrant for a
home may detain the occupants during the search;
Michigan v. Summers, supra, 705; and observed that
the detention of the respondent in that case was ‘‘sub-
stantially less intrusive’’ than an arrest. (Internal quota-
tion marks omitted.) Id., 702. On the basis of this
distinction between a formal arrest and the detention
of the occupant of a home incident to the execution of
a search warrant, the Appellate Court reasoned that ‘‘a
defendant is normally not in custody, and . . .
Miranda warnings are not required, when he or she is
detained during the execution of a search warrant.’’
State v. Mangual, supra, 648. The Appellate Court ulti-
mately concluded that ‘‘the trial court did not make any
factual findings that would lead [the Appellate Court]
to conclude that the defendant was subject to greater
constraints on her freedom of movement than those
normally occurring during the execution of a search
. . . warrant.’’ Id.
On appeal to this court following our grant of certifi-
cation, the defendant claims that (1) the Appellate Court
incorrectly concluded that the trial court properly had
denied her motion to suppress because, contrary to
the conclusion of those courts, she was in custody for
purposes of Miranda when Hicks questioned her, and
(2) the resulting use of her statements by the state
constituted harmful error requiring a new trial. We
agree with both of the defendant’s contentions.
I
We first address the defendant’s claim that she was
entitled to suppression of her statements because she
had not been advised of her Miranda rights before
Hicks elicited those statements, even though she was
in police custody at that time. We agree that she was
in custody, and, therefore, the police were required to
administer Miranda warnings prior to any questioning.7
The following principles concerning the requirement
of Miranda warnings govern our analysis of the defen-
dant’s claim. 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 interroga-
tion 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 custodial interrogation blurs the line
between voluntary and involuntary statements . . . .’’
Id. Thus, the court in Miranda was concerned ‘‘with
protecting defendants against interrogations that take
place in a police-dominated atmosphere, containing
inherently compelling pressures [that] work to under-
mine the individual’s will to resist and to compel him
to speak [when] he would not otherwise do so freely
. . . Miranda v. Arizona, supra, 384 U.S. 445, 467
. . . .’’ (Internal quotation marks omitted.) State v. Des-
Laurier, 230 Conn. 572, 577–78, 646 A.2d 108 (1994).
‘‘By adequately and effectively appris[ing] [a suspect]
of his rights and reassuring the suspect that the exercise
of those rights must be fully honored, the Miranda
warnings combat [the] pressures inherent in custodial
interrogations. Miranda v. Arizona, [supra, 467]. In so
doing, they enhance the trustworthiness of any state-
ments that may be elicited during an interrogation.’’8
(Internal quotation marks omitted.) In re Terrorist
Bombings of United States Embassies in East Africa,
552 F.3d 177, 202 (2d Cir. 2008); see also State v. Barrett,
205 Conn. 437, 447, 534 A.2d 219 (1987) (Miranda warn-
ings ‘‘significantly enhance [a suspect’s] opportunity
to make a knowing, intelligent and voluntary decision
whether to speak or remain silent’’). Consequently,
‘‘police officers are not required to administer Miranda
warnings to everyone whom they question’’; Oregon v.
Mathiason, supra, 429 U.S. 495; rather, they must pro-
vide such warnings only to persons who are subject to
custodial interrogation. See, e.g., Miranda v. Arizona,
supra, 444. To establish entitlement to Miranda warn-
ings, therefore, the defendant must satisfy two condi-
tions, namely, that (1) he was in custody when the
statements were made, and (2) the statements were
obtained in response to police questioning.9 E.g., State
v. Britton, 283 Conn. 598, 604, 929 A.2d 312 (2007).
Because the state does not challenge the defendant’s
contention that her statements were made in response
to Hicks’ questioning, the issue we must decide in the
present case is whether the defendant was in custody
when that questioning occurred.10
To resolve that issue, we first must consider what it
means to be in custody for purposes of Miranda, a
task that quite accurately has been characterized as
‘‘slippery . . . .’’ Oregon v. Elstad, 470 U.S. 298, 309,
105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985). ‘‘As used in
. . . Miranda [and its progeny], ‘custody’ is a term of
art that specifies circumstances that are thought gener-
ally to present a serious danger of coercion.’’ Howes v.
Fields, U.S. , 132 S. Ct. 1181, 1189, 182 L. Ed.
2d 17 (2012). ‘‘In determining whether a person is in
custody in this sense’’; id.; the United States Supreme
Court has adopted an ‘‘ ‘objective, reasonable person
test’ ’’; State v. Britton, supra, 283 Conn. 604; ‘‘the initial
step [of which] is to ascertain whether, in light of the
objective circumstances of the interrogation, Stans-
bury v. California, 511 U.S. 318, [323, 114 S. Ct. 1526,
128 L. Ed. 2d 293] (1994) . . . a reasonable person
[would] have felt [that] he or she was not at liberty to
terminate the interrogation and [to] leave. Thompson
v. Keohane, 516 U.S. 99, 112 [116 S. Ct. 457, 133 L. Ed.
2d 383] (1995).’’ (Internal quotation marks omitted.)
Howes v. Fields, supra, 1189. ‘‘Determining whether an
individual’s freedom of movement [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, 468 U.S. 420, 437, 104 S. Ct. 3138,
82 L. Ed. 2d 317 (1984)], and [has] instead asked the
additional question [of] whether the relevant environ-
ment presents the same inherently coercive pressures
as the type of station house questioning at issue in
Miranda.’’11 (Internal quotation marks omitted.) Howes
v. Fields, supra, 1189–90.
Of course, the clearest example of custody for pur-
poses of Miranda occurs when a suspect has been
formally arrested. As Miranda makes clear, however,
custodial interrogation includes questioning initiated
by law enforcement officers after a suspect has been
arrested or ‘‘otherwise deprived of his freedom of action
in any significant way.’’ (Emphasis added.) Miranda
v. Arizona, supra, 384 U.S. 444. Thus, not all restrictions
on a suspect’s freedom of action rise to the level of
custody for Miranda purposes; in other words, ‘‘the
freedom-of-movement test identifies only a necessary
and not a sufficient condition for Miranda custody.’’
Maryland v. Shatzer, 559 U.S. 98, 112, 130 S. Ct. 1213,
175 L. Ed. 2d 1045 (2010). Rather, the ‘‘ultimate inquiry’’
is whether a reasonable person in the defendant’s posi-
tion would believe that there was a ‘‘restraint on [her]
freedom of movement of the degree associated with
a formal arrest.’’12 (Internal quotation marks omitted.)
Thompson v. Keohane, supra, 516 U.S. 112. Any lesser
restriction on a person’s freedom of action is not signifi-
cant enough to implicate the core fifth amendment con-
cerns that Miranda sought to address.
With respect to the issue of whether a person in the
suspect’s position reasonably would have believed that
she was in police custody to the degree associated with
a formal arrest, ‘‘no definitive list of factors governs
[that] determination,’’ which must be based on ‘‘the
circumstances of each case . . . .’’ (Internal quotation
marks omitted.) State v. Jackson, 304 Conn. 383, 416,
40 A.3d 290 (2012). ‘‘Because, however, the [court in]
Miranda . . . expressed concern with protecting
defendants against interrogations that take place in a
police-dominated atmosphere containing [inherent]
pressures [that, by their very nature, tend] to undermine
the individual’s [ability to make a free and voluntary
decision as to whether to speak or remain silent] . . .
circumstances relating to those kinds of concerns are
highly relevant on the custody issue.’’ (Internal quota-
tion marks omitted.) Id., 416–17. In other words, ‘‘in
order to determine how a suspect [reasonably] would
have gauge[d] his freedom of movement, courts must
examine all of the circumstances surrounding the inter-
rogation.’’ (Internal quotation marks omitted.) Howes
v. Fields, supra, 132 S. Ct. 1189. Although this court
has not been called on to decide whether the totality
of the circumstances surrounding the execution of a
search warrant at a suspect’s home rendered the atmo-
sphere police-dominated for purposes of Miranda, the
Appellate Court has addressed that issue; see State v.
Read, 132 Conn. App. 17, 20–23, 29 A.3d 919, cert.
denied, 303 Conn. 916, 33 A.3d 740 (2011); and we pre-
viously have considered whether a suspect was in cus-
tody when he invited the police into his home and
willingly agreed to speak to them. See State v. Kirby,
280 Conn. 361, 394–96, 908 A.2d 506 (2006); see also
State v. Johnson, 241 Conn. 702, 719–20, 699 A.2d 57
(1997) (defendant voluntarily met with police in his
father’s residence). A review of these and related cases
from this state, as well as federal and sister state cases
involving the interrogation of a suspect during a police
search of his residence, reveals the following nonexclu-
sive list of factors to be considered in determining
whether a suspect was in custody for purposes of
Miranda: (1) the nature, extent and duration of the
questioning; (2) whether the suspect was handcuffed
or otherwise physically restrained; (3) whether officers
explained that the suspect 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 suspect was
isolated from friends, family and the public.
Finally, we set forth the standard of review. ‘‘The trial
court’s determination of the historical circumstances
surrounding the defendant’s interrogation [entails] find-
ings of fact . . . which will not be overturned unless
they are clearly erroneous. . . . In order to determine
the [factual] issue of custody, however, we will conduct
a scrupulous examination of the record . . . in order
to ascertain whether, in light of the totality of the cir-
cumstances, the trial court’s finding is supported by
substantial evidence. . . . The ultimate inquiry as to
whether, in light of these factual circumstances, a rea-
sonable person in the defendant’s position would
believe that he or she was in police custody of the
degree associated with a formal arrest . . . calls for
application of the controlling legal standard to the his-
torical facts [and] . . . therefore, presents a . . .
question of law . . . over which our review is de novo.’’
(Citations omitted; internal quotation marks omitted.)
State v. Jackson, supra, 304 Conn. 417. In other words,
we are bound to accept the factual findings of the trial
court unless they are clearly erroneous, but we exercise
plenary review over the ultimate issue of custody.
With these principles in mind, we turn to the merits
of the defendant’s claim that she was in custody when
Hicks questioned her and, therefore, that her statements
must be suppressed because she was not given Miranda
warnings. As we have explained, that issue requires us
to determine, first, whether a reasonable person in the
defendant’s position would have believed that she was
free to leave the apartment while the police were exe-
cuting the search warrant. If the answer to that question
is yes, the inquiry is over because the defendant cannot
establish custody for purposes of Miranda. If, however,
the answer is no, we proceed to the second step of
the inquiry, which asks whether that same reasonable
person also would have believed that the police
restraint on her freedom of action was akin to the
restraint associated with a formal arrest.
With respect to the reasonableness of the defendant’s
belief that she was not free to leave, we agree that her
subjective understanding was objectively reasonable.13
Indeed, Hicks acknowledged that, in fact, the defendant
was not free to leave, and, although she was not
expressly so informed, the conduct of the police was
fully consistent with her belief. Put differently, there is
nothing in the conduct of the police that reasonably
would have caused her to think otherwise. We need
not address this issue further, however, in light of our
determination that, for the reasons discussed herein-
after, a reasonable person in the defendant’s position
also would have believed that her freedom of action was
restricted to the degree associated with a formal arrest.
Several key factors support the defendant’s con-
tention that the conduct of the police gave rise to an
atmosphere of police domination that caused the defen-
dant to reasonably believe that she was in police cus-
tody during the search of her apartment. First, the police
initiated contact with the defendant. ‘‘[W]hen the con-
frontation between the suspect and the criminal justice
system is instigated at the direction of law enforcement
authorities, rather than the suspect, custody is more
likely to exist.’’ United States v. Griffin, 922 F.2d 1343,
1351 (8th Cir. 1990). In the present case, the defendant
did not invite the officers into her apartment; rather,
they entered under the authority of a search warrant,
an inherently coercive and intimidating police action.
A wholly unexpected and highly intrusive law enforce-
ment initiative of this sort is likely to be especially
alarming when, as in the present case, the suspect is
confronted by a large contingent of armed officers. Not
surprisingly, Hicks acknowledged that the defendant
did, indeed, appear concerned and startled by the
unfolding events.
Second, officers brandished their weapons upon
announcing themselves to the defendant and entering
her apartment. Although the defendant does not ques-
tion the propriety of this conduct, an occupant of the
apartment reasonably would associate such a display
of force with the compulsion routinely employed by
police when effecting an arrest. See, e.g., United States
v. Hashime, 734 F.3d 278, 283–84 (4th Cir. 2013) (defen-
dant, who was awakened at gunpoint to find his house
‘‘occupied by a flood of armed officers,’’ was deemed
to be in custody during execution of search warrant);
United States v. Craighead, 539 F.3d 1073, 1078, 1085
(9th Cir. 2008) (defendant was in custody during execu-
tion of search warrant by eight armed officers, some
of whom unholstered their weapons in defendant’s pres-
ence); United States v. Colonna, 511 F.3d 431, 436 (4th
Cir. 2007) (defendant reasonably believed that he was
in custody during execution of search warrant at his
home when officers ‘‘awakened [him] at gunpoint and
[kept him] guarded at all times’’); Moss v. State, 823
P.2d 671, 671–72, 675 (Alaska App. 1991) (defendant
was in custody when officers in raid gear with weapons
drawn detained him in his residence incident to execu-
tion of search warrant); State v. Chevre, Minnesota
Court of Appeals, Docket No. C5-99-1707 (Minn. App.
August 8, 2000) (defendant was found to be in custody
during execution of search warrant at his home after
he ‘‘was confronted at gunpoint at night by a number
of police officers as a part of a narcotics investigation’’);
State v. Burdick, 186 Or. App. 460, 462, 464, 63 P.3d 1190
(2003) (defendant was in custody after police forcibly
entered his home with search warrant and ordered him
and other occupants onto floor at gunpoint); Wass v.
Commonwealth, 5 Va. App. 27, 34, 359 S.E.2d 836 (1987)
(police had defendant in custody when execution of
search warrant was marked by ‘‘armed display of man-
power at his home’’). In the present case, numerous
police officers approached the defendant’s residence
with a show of force that included drawn handguns,
one or more rifles, and tactical vests, and, then, upon
entering the apartment, those officers prohibited the
defendant from leaving or otherwise moving about the
apartment. In such circumstances, it was reasonable
for the defendant to perceive such an imposing display
of authority as a clear indication that the police intended
to assume and maintain full control over her and her
daughters. See, e.g., Moss v. State, supra, 675 (‘‘[in]
conclud[ing] that [the defendant] was in custody during
the police questioning’’ at his home during execution
of search warrant, court ‘‘emphasize[d] the fact that
the police entered [his] residence at gunpoint and con-
trolled his movements and [those of] the other residents
at least at the beginning of the search’’).
Another factor that supports a finding of custody is
the number of law enforcement personnel involved in
the execution of the search warrant. A total of seven
officers participated in the search of the defendant’s
residence, a police presence that is particularly signifi-
cant in view of the fact that the defendant’s apartment
consisted of only four rooms. As the Ninth Circuit Court
of Appeals has stated, ‘‘the presence of a large number
of visibly armed law enforcement officers goes a long
way [toward] making the suspect’s home a police-domi-
nated atmosphere.’’ United States v. Craighead, supra,
539 F.3d 1085; see also United States v. Revels, 510 F.3d
1269, 1270, 1277 (10th Cir. 2007) (custodial interroga-
tion of defendant occurred when seven officers from
two different agencies entered his home to execute
search warrant); United States v. Mittel-Carey, 493 F.3d
36, 39–40 (1st Cir. 2007) (defendant was in custody
when eight officers executed search warrant in his
home). In addition, there is an increased likelihood that
a reasonable person in the defendant’s position would
have been intimidated by the considerable police pres-
ence because many, if not all, of the officers were in
the living room with the defendant when Hicks ques-
tioned her.
The fact that the police exercised complete control
over the defendant and her surroundings before, during
and after Hicks’ questioning of her is a fourth consider-
ation that tends to establish custody. Immediately upon
entering the apartment, the officers ordered the defen-
dant and her three daughters to go to the living room,
where they were required to remain, under guard.
‘‘[T]he likely effect on a suspect of being placed under
guard during questioning, or told to remain in the sight
of interrogating officials, is to associate these restraints
with a formal arrest.’’ United States v. Griffin, supra,
922 F.2d 1350–51. This exercise of total control over
the defendant stands in stark contrast to the far more
relaxed environment that is a hallmark of interrogations
in a suspect’s home that have been found to be noncus-
todial. For example, in State v. Read, supra, 132 Conn.
App. 17, the Appellate Court concluded that the defen-
dant was not in custody during the execution of a search
warrant when, after being told that he was ‘‘free to come
and go as [he] pleased,’’ he strolled, unaccompanied,
around the property and, in fact, repeatedly left the
searched premises to visit a nearby general store. (Inter-
nal quotation marks omitted.) Id., 21. In the present
case, the defendant was confined to a couch in the
living room, where she was kept under constant police
observation and prohibited from moving about the
apartment.
Finally, the police never provided the defendant with
an explanation of the nature, purpose, or likely duration
of her detention. At the very least, the circumstances
of the entry and search by the police were sufficiently
coercive and disquieting that the defendant reasonably
would have been concerned about how long she would
be detained and how she and her daughters otherwise
would be treated by the police. Indeed, the fact that
the police told the defendant nothing about whether
or when she might be released could have led her to
presume that her situation was not likely to change
anytime soon.14
In this and several other important respects, the cir-
cumstances in which the defendant found herself are
vastly different from those of other lawful seizures that
have been deemed to be noncustodial for purposes of
Miranda, the most commonplace of which is an ordi-
nary traffic stop.15 ‘‘Two features of an ordinary traffic
stop mitigate the danger that a person questioned will
be induced to speak [when] he would not otherwise do
so freely . . . . First, [the] detention of a motorist pur-
suant to a traffic stop is presumptively temporary and
brief. . . . [Therefore, a] motorist’s expectations,
when he sees a [police cruiser’s] light[s] flashing behind
him, are that he will be obliged to spend a short period of
time answering questions and waiting while the officer
checks his license and registration, that he may then
be given a citation, but that in the end he most likely
will be allowed to continue on his way. . . .
‘‘Second, circumstances associated with the typical
traffic stop are not such that the motorist feels com-
pletely at the mercy of the police. . . . [Specifically]
the typical traffic stop is public, at least to some degree.
Passersby, on foot or in other cars, witness the interac-
tion of [the] officer and motorist. This exposure to pub-
lic view both reduces the ability of an unscrupulous
policeman to use illegitimate means to elicit self-incrim-
inating statements and diminishes the motorist’s fear
that, if he does not cooperate, he will be subjected to
abuse. The fact that the detained motorist typically is
confronted by only one or at most two policemen fur-
ther mutes his sense of vulnerability.’’ (Citations omit-
ted; footnotes omitted; internal quotation marks omit-
ted.) Berkemer v. McCarty, supra, 468 U.S. 437–38.
None of these mitigating considerations factored into
the circumstances surrounding the detention of the
defendant in the present case. The defendant had no
way of knowing that she was being detained only tempo-
rarily, and, consequently, she had no reason to know
or expect that her status as a detainee would end upon
the conclusion of the search. Moreover, seven armed
officers participated in the search, which took place
in a setting free from public view, where the police
exercised complete control over the defendant and her
daughters. Under the circumstances, there simply is no
reason why she would not have felt extremely vulnera-
ble and ‘‘completely at the mercy of the police.’’ Id., 438.
The officers easily could have told the defendant
that she was not under arrest and that she was being
detained merely for the duration of the search. Although
not necessarily determinative of the custody issue,
‘‘[t]he most obvious and effective means of demonstra-
ting that a suspect has not been taken into custody
. . . is for the police to inform the suspect that an
arrest is not being made and that the suspect may termi-
nate the interview at will.’’16 (Citation omitted; internal
quotation marks omitted.) United States v. Griffin,
supra, 922 F.2d 1349; see also Howes v. Fields, supra,
132 S. Ct. 1193 (fact that police told suspect that he
was free to leave and terminate interview was ‘‘[m]ost
important’’ consideration for purposes of custody deter-
mination under Miranda); State v. Greenfield, 228
Conn. 62, 71 n.10, 634 A.2d 879 (1993) (‘‘[o]ften, an
important factor distinguishing a consensual encounter
from a seizure is whether the police expressly informed
the [suspect] that he was free to leave at the outset of
the interview’’); cf. United States v. Craighead, supra,
539 F.3d 1087 (‘‘[i]f a law enforcement officer informs
the suspect that he is not under arrest, that statements
are voluntary, and that he is free to leave at any time,
this communication greatly reduces the chance that a
suspect will reasonably believe he is in custody’’).
When, however, a detained suspect is not so informed
but, instead, is kept in the dark about the purpose and
duration of the detention, he is far more likely to view
his seizure by the police as the functional equivalent
of an arrest. See Moss v. State, supra, 823 P.2d 674
(‘‘[e]specially when force is used or a display of weap-
ons is made, a person who has been [detained] and
placed in the effective custody—albeit temporary—of
the police . . . will certainly understand that he has
been placed in custody, but he may not understand the
temporary nature of the seizure unless it is explained’’).
Even if a suspect is merely confused or unclear as to
her custodial status, she may feel compelled to submit
to police questioning for fear that her refusal to cooper-
ate will reduce her chances for release or other favor-
able treatment. See, e.g., Illinois v. Perkins, 496 U.S.
292, 296–97, 110 S. Ct. 2394, 110 L. Ed. 2d 243 (1990)
(suspect questioned by law enforcement officers under
coercive circumstances may ‘‘feel compelled to speak
by the fear of reprisal for remaining silent or in the
hope of more lenient treatment should he [cooperate]’’).
It is true that a number of factors militate against a
finding that the defendant in the present case was in
custody. In particular, she was not handcuffed, the
police did not threaten her or tell her that she was
under arrest, and the questioning, which was brief, took
place in her own home. For the following reasons, how-
ever, we are not persuaded that these factors outweigh
the coercive features of the defendant’s detention.
Perhaps the most significant consideration favoring
the state’s claim that the defendant was not in custody
is the fact that the questioning took place in the familiar
surroundings of the defendant’s apartment. We recog-
nize that an encounter with police is generally less likely
to be custodial when it occurs in a suspect’s home. See,
e.g., Miranda v. Arizona, supra, 384 U.S. 449–50 (‘‘[the
suspect] is more keenly aware of his rights and more
reluctant to tell of his indiscretions or criminal behavior
within the walls of his home’’ [internal quotation marks
omitted]); United States v. Hashime, supra, 734 F.3d
284 (‘‘courts are generally less likely to characterize
. . . interrogations in familiar settings like the home
[as custodial]’’). ‘‘Miranda, however, does not allow
for a simple in-home [versus] out-of-home dichotomic
analysis.’’ United States v. Cavazos, 668 F.3d 190, 194
(5th Cir. 2012). ‘‘More important than the familiarity of
the surroundings [in his home] where [the defendant]
was being [questioned] is the degree to which the police
dominated the scene.’’ Sprosty v. Buchler, 79 F.3d 635,
641 (7th Cir.), cert. denied, 519 U.S. 854, 117 S. Ct. 150,
136 L. Ed. 2d 95 (1996); see also United States v. Griffin,
supra, 922 F.2d 1354–55 (‘‘[q]uestioning [that] occurs
in the suspect’s own home may provide a margin of
comfort, but . . . the setting of the interrogation is not
so important to the inquiry as the question of police
domination of that setting’’). Consequently, ‘‘when
applying Miranda to the task of sorting a [noncustodial]
in-home interrogation from a custodial one, [a court
must consider] the extent to which the circumstances
of the interrogation turned the otherwise comfortable
and familiar surroundings of the home into a police-
dominated atmosphere.’’ (Internal quotation marks
omitted.) United States v. Craighead, supra, 539 F.3d
1083.
When a large contingent of armed police officers
forcibly enter a suspect’s residence under the official
authority of a search warrant and detain the suspect
during the search, that residence is no longer a bastion
of privacy and security; rather, it has been transformed,
albeit lawfully, into a hub of law enforcement activity
directed against the suspect. Consequently, ‘‘it is not
difficult to envision that a suspect’s sense of captivity
can actually be intensified by the intrusive and intim-
idating environment created when agents of the law
take control of a person’s private residence.’’ United
States v. Griffin, supra, 1355 n.15. ‘‘[A] reasonable per-
son interrogated inside his own home may [not under-
stand that] he is truly free to terminate the interrogation
if his home is crawling with law enforcement agents
conducting a warrant-approved search. He may not feel
that he can successfully terminate the interrogation if
he knows that he cannot empty his home of his interro-
gators until they have completed their search.’’ (Internal
quotation marks omitted.) United States v. Craighead,
supra, 1083. We therefore agree with the defendant
that the facts and circumstances surrounding the police
encounter in the present case ‘‘belie any conclusion
that [the defendant’s] home, [at the time] of the ques-
tioning at issue, was the traditional comfortable envi-
ronment that . . . normally would [be] consider[ed] a
neutral location for questioning.’’ United States v. Rev-
els, supra, 510 F.3d 1275–76.
The state also argues that, because the defendant
was not handcuffed, she reasonably could not have
believed that she was in custody to the degree associ-
ated with a formal arrest. As the state maintains,
‘‘[h]andcuffs are generally recognized as a hallmark of
a formal arrest.’’ United States v. Newton, 369 F.3d 659,
676 (2d Cir.), cert. denied, 543 U.S. 947, 125 S. Ct. 371,
160 L. Ed. 2d 262 (2004); see also United States v.
Maguire, 359 F.3d 71, 79 (1st Cir. 2004) (‘‘the use of
handcuffs . . . [is] one of the most recognizable indi-
cia of traditional arrest’’ [internal quotation marks omit-
ted]). As we previously have explained, however, no
one factor in a custody analysis is outcome determina-
tive. See Howes v. Fields, supra, 132 S. Ct. 1189.
Although the defendant was not handcuffed, the highly
coercive atmosphere of the police entry and search,
including the large and intimidating police presence,
the severe limitation placed on the defendant’s freedom
of movement, and the failure of the police to explain
to her the temporary nature of her detention lead us
to conclude that the defendant reasonably would have
believed that she was in custody even though the police
did not use handcuffs.
In further support of its argument that the defendant
was not in custody, the state also relies on the facts
that the police did not tell her that she was under arrest,
they did not threaten her, and the questioning was brief.
Although the police never advised the defendant that
she was under arrest, they also never told her that
she was not under arrest, and their conduct—the same
conduct that caused the defendant, reasonably and cor-
rectly, to believe that she was not free to leave—con-
veyed a clear message of complete, unfettered and
temporally indefinite police control. The police also
did not threaten the defendant, but the circumstances
surrounding the search were themselves threatening
and intimidating. Similarly, although the questioning
itself was neither prolonged nor intimidating, it was
the coercive environment in which Hicks queried the
defendant that reasonably caused her to believe that
she was in custody. We therefore reject the state’s con-
tention that the several noncoercive elements of Hicks’
questioning obviated the need for Miranda warnings.17
Although we conclude that the defendant’s constitu-
tional rights were violated when Hicks questioned the
defendant without first issuing Miranda warnings, it
bears emphasis that her detention during the execution
of the search warrant was reasonable for purposes of
the fourth amendment. As the United States Supreme
Court held in Michigan v. Summers, supra, 452 U.S. 692,
‘‘for [f]ourth [a]mendment purposes . . . a warrant to
search for contraband founded on probable cause
implicitly carries with it the limited authority to detain
the occupants of the premises while a proper search
is conducted.’’ (Footnote omitted.) Id., 705; see also id.,
702 (explaining that interests of officer safety, preven-
tion of flight, and preservation of evidence are served
by permitting police to detain occupant during execu-
tion of search warrant for his residence). It also is
settled, however, that ‘‘whether an individual detained
during the execution of a search warrant has been . . .
seized for [f]ourth [a]mendment purposes and whether
that individual is ‘in custody’ for Miranda purposes are
two different issues’’; United States v. Kim, 292 F.3d
969, 976 (9th Cir. 2002); because ‘‘[c]ustody for Miranda
purposes requires a greater restraint on freedom than
seizure under the [f]ourth [a]mendment.’’18 United
States v. Cavazos, supra, 668 F.3d 193; see also United
States v. Newton, supra, 369 F.3d 673 (‘‘[the] court . . .
has specifically rejected [f]ourth [a]mendment reason-
ableness as the standard for resolving Miranda custody
challenges’’). Thus, ‘‘[a]lthough some detentions not ris-
ing to the level of a formal arrest may be reasonable
within the meaning of the [f]ourth [a]mendment, those
same detentions may nonetheless create the custodial
situation in which Miranda was designed to operate.’’
United States v. Revels, supra, 510 F.3d 1274.
Furthermore, the fact that the fourth amendment per-
mits the police to detain a suspect while executing a
search warrant in her home does not alter the coercive
effect of that detention, especially when the suspect is
not informed that the detention is temporary. ‘‘[I]n many
cases, when law enforcement agents conduct an in-
home interrogation while conducting a lawful search
of the home, physical control of the suspect will be
necessary to preserve evidence and [to] protect the
safety of the agents. The fact that these precautions
may be necessary to the success of the lawful search
does not lessen their tendency to make a reasonable
person believe he is in custody.’’ United States v. Craig-
head, supra, 539 F.3d 1086. We also agree that, ‘‘[i]f the
. . . [officers’] actions were necessary for evidence
preservation and officer safety, then [Hicks] could have
chosen to postpone the interrogation until a [noncusto-
dial] moment . . . or to [administer Miranda warn-
ings]. Either step would have protected both the
defendant’s constitutional rights and the officers’ legiti-
mate law enforcement needs.’’ United States v. Mittel-
Carey, supra, 493 F.3d 40.
We note, finally, that the state relies on language in
Michigan v. Summers, supra, 452 U.S. 692, to support
its contention that Hicks’ questioning of the defendant
was noncustodial. In Summers, the court, in explaining
why the police did not violate the fourth amendment
when they detained the respondent, George Summers,
during the execution of a search warrant at his home,
observed that Summers’ detention in that case was
‘‘substantially less intrusive’’ than an arrest. (Internal
quotation marks omitted.) Id., 702. In the state’s view,
the Appellate Court correctly concluded that this com-
ment by the court in Summers establishes that a suspect
is ordinarily not in custody when she is detained inci-
dent to the execution of a search warrant. See State v.
Mangual, supra, 129 Conn. App. 648. The state also
agrees with the Appellate Court that the trial court’s
determination on the issue of custody must be upheld
because the trial court made no factual findings to sup-
port the conclusion that the defendant was subject to
any greater limitations on her freedom of movement
than those normally occurring when a search warrant
is executed. See id.
We disagree with this analysis for several reasons.
First, Summers is a fourth amendment case that had
nothing to do with the question of when a suspect is
in custody for purposes of Miranda. Second, because
the court’s decision in Summers says very little about
the circumstances surrounding Summers’ detention, we
cannot discern whether and, if so, to what extent, the
court considered those circumstances in concluding
that the restraint on Summers’ liberty was less than
that of a formal arrest. Finally, as we have explained,
courts invariably have looked to the facts of the particu-
lar case to determine whether, in light of all relevant
circumstances, the suspect detained in his home was
in custody for purposes of Miranda. Indeed, the United
States Supreme Court consistently has emphasized that
the fact specific issue of custody must be decided on
the basis of the court’s consideration of the totality of
the circumstances surrounding the interrogation. See,
e.g., J. D. B. v. North Carolina, U.S. , 131 S. Ct.
2394, 2402, 180 L. Ed. 2d 310 (2011); Howes v. Fields,
supra, 132 S. Ct. 1189; Thompson v. Keohane, supra,
516 U.S. 112. Accordingly, we reject any suggestion
that the defendant was not in custody for purposes of
Miranda merely because she was lawfully detained
inside her apartment during the execution of the
search warrant.
II
Having determined that the trial court and the Appel-
late Court improperly concluded that the police were
not required to advise the defendant of her Miranda
rights prior to eliciting statements from her, we next
must address the state’s claim that the admission of
those statements into evidence was harmless beyond
a reasonable doubt. For the reasons that follow, we are
not persuaded that the state can meet that demand-
ing standard.
The state claims that its reliance on the defendant’s
statements had no bearing on the outcome of the trial
because the other evidence of guilt was compelling.
The defendant maintains that, although the heroin was
discovered in the hairspray can found in her bedroom,
her statements to Hicks constituted the only direct evi-
dence that she knew that the heroin was in the hairspray
can, and, further, the indirect or circumstantial evi-
dence of her knowledge was not strong.
The following additional facts were adduced at trial
and are relevant to this issue. In January and February,
2008, the defendant and her children resided with Jesus
Ortiz, who shared a bedroom with the defendant, and
Dionices Flores, known as ‘‘Bebo,’’ who slept in a sepa-
rate room in the apartment. The confidential informants
who had participated in controlled purchases of heroin
from inside the apartment reported buying the drugs
from Hispanic males only, and one such informant spe-
cifically identified a Hispanic male named ‘‘Bebo’’ as the
person from whom he had purchased heroin. Another
informant, however, told police that he had witnessed
a woman named ‘‘Ada’’ sell heroin, and that he believed
that she was responsible for the drug sales in the
apartment.19
During the search of the bedroom that the defendant
and Ortiz had shared, investigating officers discovered
the following items in addition to the hairspray can
containing heroin: (1) separate pieces of mail addressed
to the defendant, Ortiz and Flores; (2) a police scanner;
(3) state social services cards for Jeffrey Moctezuma
and Dionices Flores-Garcia; (4) more than $400 in cash;
(5) a cell phone; and (6) two notebooks containing
names, addresses and numbers. At some point during
the search, Flores arrived, and the officers arrested him
for possession of narcotics. The police also arrested
the defendant and found her in possession of a cell
phone and two $20 bills that had been used by one of
the confidential informants to purchase heroin from
inside the apartment.20
At trial, the defendant testified that the can of hairsp-
ray and the drugs found therein belonged to Flores,
who sometimes would keep his belongings in her room.
The defendant also testified that she did not know who
owned the police scanner or the notebook, and that
the notations in the notebook were not in her handwrit-
ing. She further stated that Ortiz owned one of the cell
phones found by the police and that the other belonged
to one of her daughters. In addition, the defendant
claimed that the money seized from her bedroom came
from several legitimate sources, in particular, wages
that she had earned from her job at a restaurant, pro-
ceeds from workers’ compensation and personal injury
claims, and Flores’ share of the rent and living expenses,
which he paid to the defendant in cash every two weeks.
One of the defendant’s daughters also testified at trial
and corroborated certain aspects of the defendant’s
testimony, including the defendant’s contention that the
hairspray can was owned by Flores. Finally, during
closing argument to the jury, the state twice under-
scored the significance of the defendant’s response to
Hicks’ questions.
‘‘If statements taken in violation of Miranda are
admitted into evidence during a trial, their admission
must be reviewed in light of the harmless error doctrine.
. . . [W]hether an error is harmful depends on its
impact on the trier of fact and the result of the case.
. . . This court has held in a number of cases that when
there is independent overwhelming evidence of guilt,
a constitutional error would be rendered harmless
beyond a reasonable doubt. . . . When an [evidentiary]
impropriety is of constitutional proportions, the state
bears the burden of proving that the error was harmless
beyond a reasonable doubt. . . . [W]e must examine
the impact of the evidence on the trier of fact and the
result of the trial. . . . If the evidence may have had
a tendency to influence the judgment of the jury, it
cannot be considered harmless. . . . That determina-
tion must be made in light of the entire record [including
the strength of the state’s case without the evidence
admitted in error].’’ (Citations omitted; internal quota-
tion marks omitted.) State v. Mitchell, 296 Conn. 449,
459–60, 996 A.2d 251 (2010).
The defendant was convicted of possessing narcotics
with the intent to sell. ‘‘[T]o prove illegal possession of
a narcotic substance, it is necessary to establish that
the defendant knew the character of the substance,
knew of its presence and exercised dominion and con-
trol over it. . . . [When] . . . the [narcotics are] not
found on the defendant’s person, the state must proceed
on the theory of constructive possession, that is, posses-
sion without direct physical contact. . . . [When] the
defendant is not in exclusive possession of the premises
where the narcotics are found, it may not be inferred
that [the defendant] knew of the presence of the narcot-
ics and had control of them, unless there are other
incriminating statements or circumstances tending to
buttress such an inference.’’ (Internal quotation marks
omitted.) State v. Bruno, 293 Conn. 127, 136, 975 A.2d
1253 (2009).
We agree with the defendant that the state cannot
demonstrate beyond a reasonable doubt that the
improper admission of the defendant’s statements was
harmless because those statements were the only direct
and definitive evidence of the defendant’s knowledge
that there was heroin in her bedroom. Evidence
adduced at trial, if credited, tended to establish that
Flores, who resided in the apartment with the defen-
dant, exercised exclusive possession of and control
over the drugs. For example, the defendant testified that
the hairspray can belonged to Flores. The defendant and
her daughter also testified that Flores sometimes left
his belongings in the defendant’s room. This testimony
was corroborated by the fact that Flores’ mail and his
state social services card were found in the defendant’s
bedroom. From the search warrant affidavit, the jury
was aware that a confidential informant told the police
that he had bought heroin from a person in the apart-
ment named ‘‘Bebo,’’ Flores’ nickname, who matched
Flores’ description. In addition, the defendant testified
that Flores paid her in cash for his share of the rent
and living expenses, thereby providing a plausible
explanation for why she was found to possess the two
$20 bills that were used by one of the confidential infor-
mants to purchase drugs from a Hispanic male, presum-
ably Flores, inside the apartment. Although we acknow-
ledge that, according to the search warrant affidavit that
had been admitted into evidence, one of the confidential
informants reported seeing a woman in the apartment
named ‘‘Ada’’ selling heroin, this hearsay statement was
not subject to cross-examination and can hardly be
characterized as powerful evidence of the defendant’s
guilt, especially because none of the informants actually
purchased heroin from the defendant. Finally, the rela-
tive importance of the defendant’s statements to the
state’s case is reflected in the fact that the state twice
referred to the statements during closing arguments.
Thus, although Hicks’ testimony about the defen-
dant’s statements constituted overwhelming evidence
of the defendant’s knowledge that heroin was concealed
in the hairspray can found in her bedroom, in the
absence of those statements, it would not have been
irrational or far-fetched for the jury to harbor a reason-
able doubt with respect to that knowledge requirement.
We therefore cannot say that the defendant’s statements
had no tendency to influence the judgment of the jury
with respect to its resolution of the case. Accordingly,
the improper admission into evidence of those state-
ments was not harmless beyond a reasonable doubt.
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
reverse the judgment of the trial court and to remand
the case to that court for a new trial.
In this opinion the other justices concurred.
* The listing of justices reflects their seniority status on this court as of
the date of oral argument.
1
Under Miranda, if police question a suspect who is in custody, any
statements made by the suspect in response to the questioning will be
suppressed unless, prior to the questioning, the suspect is advised that he
‘‘has a right to remain silent, that any statement he does make may be used
as evidence against him, and that he has a right to the presence of an
attorney, either retained or appointed.’’ Miranda v. Arizona, supra, 384 U.S.
444. The fundamental purpose of Miranda warnings, which, as the United
States Supreme Court has reaffirmed, are constitutionally mandated; see
Dickerson v. United States, 530 U.S. 428, 432, 444, 120 S. Ct. 2326, 147 L.
Ed. 2d 405 (2000); is to ensure ‘‘that [an] individual [subjected to custodial
police interrogation] is accorded his privilege under the [f]ifth [a]mendment
to the [United States] [c]onstitution not to be compelled to incriminate
himself.’’ Miranda v. Arizona, supra, 439. The fifth amendment privilege
against self-incrimination is made applicable to the states through the due
process clause of the fourteenth amendment to the United States constitu-
tion. See, e.g., Malloy v. Hogan, 378 U.S. 1, 6, 84 S. Ct. 1489, 12 L. Ed.
2d 653 (1964). The ‘‘[f]ailure to administer Miranda warnings creates a
presumption of compulsion’’ that is ‘‘irrebuttable for purposes of the prosecu-
tion’s case in chief . . . .’’ Oregon v. Elstad, 470 U.S. 298, 307, 105 S. Ct.
1285, 84 L. Ed. 2d 222 (1985).
2
The defendant’s daughters were nineteen, sixteen and thirteen years of
age, respectively, when the police executed the search warrant.
3
The record does not indicate how long it took the police to complete
the search after discovering the heroin in the defendant’s bedroom. We also
note that all seven officers participated in the execution of the search
warrant. Some of the officers were in police uniform; the other officers
wore tactical vests identifying them as members of the department.
4
The opinion of the Appellate Court also sets forth the following testimony
that the defendant adduced in support of her motion to suppress. ‘‘[T]he
defendant called [her sixteen year old daughter, who was present when the
search was conducted]. [The daughter] testified that during the execution
of the search warrant, the officers denied her requests to use the [bathroom]
and to have the defendant sit in the living room area with the other occupants.
In addition, she claimed that the officers removed the defendant’s pit bull
dog from the apartment and in doing so ‘put [a] gun in the dog’s face . . . .’
Finally, [the daughter] testified that she did not feel free to leave the apart-
ment while the officers were executing the search warrant.
‘‘The defendant offered the following [additional] testimony in support
of her motion. When the police entered the apartment, they were carrying
rifles and did not inform her that they had a search and seizure warrant.
She asked to sit next to her daughters and to use the bathroom, but the
officers denied both requests. She admitted that the officers did not place
her in handcuffs but testified that she did not feel free to leave the apartment
or to ask the officers to leave.’’ State v. Mangual, supra, 129 Conn. App.
643. The trial court made no reference to this testimony, which the state
disputed in certain material respects. We therefore do not consider it for
purposes of this appeal.
5
The defendant sought to suppress ‘‘any response’’ that she allegedly
gave to Hicks as a result of the questioning. This includes both her verbal
acknowledgment that there were drugs in the apartment as well as her
conduct in leading the police to the heroin secreted in the hairspray can in
the bedroom. For the reasons set forth hereinafter, the defendant is entitled
to suppression of that expressive conduct, both verbal and nonverbal, in
response to Hicks’ questioning. See, e.g., Pennsylvania v. Muniz, 496 U.S.
582, 589, 110 S. Ct. 2638, 110 L. Ed. 2d 528 (1990) (fifth amendment protects
individuals from compulsion to provide state with testimonial communica-
tions that ‘‘explicitly or implicitly . . . relate a factual assertion or disclose
information’’ [internal quotation marks omitted]); People v. Hoffman, 84 Ill.
2d 480, 490, 419 N.E.2d 1145 (1981) (‘‘the act of leading [an] officer to the
place where the pistol was found was conduct of a testimonial nature and,
in the absence of Miranda warnings, testimony concerning that fact should
have been suppressed’’); State v. Wethered, 110 Wash. 2d 466, 471, 755 P.2d
797 (1988) (‘‘[when] a police officer’s questioning or requests induce a
suspect to hand over or reveal the location of incriminating evidence, such
[a] nonverbal act may be testimonial in nature; the act should be suppressed
if done while in custody in the absence of Miranda warnings’’). All references
in this opinion to the defendant’s statements include both her verbal and
nonverbal conduct.
We also note that the defendant asserts, in passing, that the police likely
would not have discovered the heroin hidden in the hairspray can if the
defendant had not alerted police to its existence. The defendant, however,
has raised no claim that the heroin itself should be suppressed as a fruit
of the Miranda violation. Indeed, a statement that is obtained in violation of
Miranda does not require suppression of the physical fruits of the suspect’s
unwarned but otherwise voluntary statements. See, e.g., United States v.
Patane, 542 U.S. 630, 636–37, 124 S. Ct. 2620, 159 L. Ed. 2d 667 (2004);
United States v. Parker, 549 F.3d 5, 10 (1st Cir. 2008), cert. denied, 556 U.S.
1160, 129 S. Ct. 1688, 173 L. Ed. 2d 1050 (2009).
6
The defendant also claimed that the trial court violated her constitutional
right to present a defense by excluding evidence that another resident of
the apartment, Dionices Flores, known as ‘‘Bebo,’’ had pleaded guilty to
possession of the heroin discovered in her bedroom. State v. Mangual,
supra, 129 Conn. App. 649. The Appellate Court determined that the record
was inadequate for review of the claim and therefore declined to consider
it. Id. That claim is not at issue in the present appeal.
7
The defendant does not assert that her rights under article first, § 8, of
the Connecticut constitution were violated. Rather, her claim is limited to
the protections afforded under the fifth and fourteenth amendments to the
United States constitution. Accordingly, our analysis is also limited to those
federal constitutional provisions.
8
Thus, even ‘‘patently voluntary statements taken in violation of Miranda
must be excluded from the prosecution’s case . . . .’’ (Emphasis omitted.)
Oregon v. Elstad, 470 U.S. 298, 307, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985).
9
The defendant bears the burden of establishing custodial interrogation.
E.g., State v. Jackson, 304 Conn. 383, 417, 40 A.3d 290 (2012).
10
We note that, at trial, the defendant testified that she had not made any
statements to Hicks. In view of the fact that the state takes a contrary
position, the defendant nevertheless is entitled to seek to have Hicks’ testi-
mony suppressed because the jury would be free to consider that testimony
unless, of course, it is excluded under Miranda. To be sure, Miranda is
not a license to commit perjury, and statements obtained in violation of
Miranda, if not the product of improper police coercion, are admissible for
impeachment purposes. See, e.g., Harris v. New York, 401 U.S. 222, 225–26,
91 S. Ct. 643, 28 L. Ed. 2d 1 (1971); State v. Burge, 195 Conn. 232, 250–51,
487 A.2d 532 (1985). The issue in the present case, however, is whether the
trial court properly permitted the state to use the defendant’s statements
in its case-in-chief.
11
Thus, in Berkemer, the court concluded that a motorist who is subject
to an ordinary traffic stop generally will not be deemed to be in custody
for purposes of Miranda even though ‘‘few motorists would feel free either
to disobey a directive to pull over or to leave the scene of a traffic stop
without being told they might do so.’’ Berkemer v. McCarty, supra, 468
U.S. 436. Although the court acknowledged that even a routine traffic stop
‘‘significantly curtails the ‘freedom of action’ of the driver and the passen-
gers’’; id.; it explained that, because the brief detention typically associated
with such stops, like the brief detention for investigative purposes permitted
under Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)
(if police officer has reasonable and articulable suspicion that criminal
activity may be afoot, officer may briefly stop suspicious person and make
reasonable inquiries aimed at confirming or dispelling his suspicions), is
‘‘comparatively nonthreatening’’ and ‘‘noncoercive,’’ Miranda warnings are
not required for ‘‘detentions of [that] sort’’ unless the police engage in
conduct further limiting the freedom of action of the person detained to a
degree akin to that of a formal arrest. Berkemer v. McCarty, supra, 440.
12
Thus, ‘‘a free-to-leave inquiry reveals only whether the person questioned
was seized. . . . Because seizure is a necessary prerequisite to Miranda
. . . it makes sense for a court to begin any custody analysis by asking
whether a reasonable person would have thought he was free to leave the
police encounter at issue. If the answer is yes, the Miranda inquiry is at
an end; the challenged interrogation did not require advice of rights. On the
other hand, if a reasonable person would not have thought [that he was]
free to leave, additional analysis is required because, as Berkemer v.
McCarty, [supra, 468 U.S. 439–40] instructs, not every seizure constitutes
custody for purposes of Miranda. . . . In such cases, a court must ask
whether, in addition to not feeling free to leave, a reasonable person would
have understood his freedom of action to have been curtailed to a degree
associated with formal arrest. . . . Only if the answer to this second ques-
tion is yes was the person in custody for practical purposes . . . and entitled
to the full panoply of protections prescribed by Miranda. Berkemer v.
McCarty, [supra, 440].’’ (Citations omitted; internal quotation marks omit-
ted.) United States v. Newton, 369 F.3d 659, 672 (2d Cir.), cert. denied, 543
U.S. 947, 125 S. Ct. 371, 160 L. Ed. 2d 262 (2004).
We note that, although this court frequently has defined custody for
purposes of Miranda as a restraint on the suspect’s freedom of movement
to a degree associated with a formal arrest, we have not always clearly
distinguished that ultimate inquiry from the threshold determination of
whether a reasonable person in the suspect’s position would feel free to
terminate the questioning and leave. Specifically, we sometimes have
appeared to conflate those two distinct inquiries by suggesting that a suspect
who demonstrates that she reasonably believed that she was not free to
leave necessarily satisfies the second, ultimate step in the analytic process,
namely, that the restraint on her freedom of movement was tantamount to
that of a formal arrest. See, e.g., In re Kevin K., 299 Conn. 107, 127, 128, 7
A.3d 898 (2010) (explaining that, ‘‘in determining whether Miranda rights
are required, the only relevant inquiry is whether a reasonable person in
the defendant’s position would believe that he or she was in police custody
of the degree associated with a formal arrest,’’ but characterizing ‘‘[t]he
ultimate determination of whether a defendant was subjected to a custodial
interrogation’’ as depending on whether ‘‘a reasonable person [would] have
felt he or she was not at liberty to terminate the interrogation and [to] leave’’
[internal quotation marks omitted]); State v. Kirby, 280 Conn. 361, 393, 394,
908 A.2d 506 (2006) (same). Indeed, on occasion, we have recited the test
for custody solely in terms of the suspect’s reasonable belief that he was
not free to leave. See, e.g., State v. Mullins, 288 Conn. 345, 363, 952 A.2d
784 (2008) (stating that, in determining whether suspect is in custody for
purposes of Miranda, ‘‘[t]he trial court first makes a factual determination
of the circumstances surrounding the alleged interrogation and then applies
those facts to an objective test as to whether a reasonable person would
have felt that he or she was not at liberty to leave’’); State v. Canales, 281
Conn. 572, 584–85, 916 A.2d 767 (2007) (same); see also State v. Burroughs,
288 Conn. 836, 844 n.5, 955 A.2d 43 (2008) (‘‘the test for determining custody
for Miranda purposes is the same in all material respects as the test that
this court uses to determine whether an individual [has been] seized, that
is, whether a reasonable person in the defendant’s position would have
believed that he was not free to leave’’). To the extent that these cases have
failed to recognize the distinction between the two separate steps that
comprise the test for determining custody for purposes of Miranda, we
take this opportunity to underscore the constitutional significance of that dis-
tinction.
13
We emphasize that the test for whether an interrogation was custodial is
an objective one. ‘‘[T]he subjective views harbored by either the interrogating
officers or the person being questioned are irrelevant. . . . The test, in
other words, involves no consideration of the actual mindset of the particular
suspect subjected to police questioning.’’ (Citation omitted; internal quota-
tion marks omitted.) J. D. B. v. North Carolina, U.S. , 131 S. Ct.
2394, 2402, 180 L. Ed. 2d 310 (2011).
14
Of course, when the police entered the apartment and confronted the
defendant, they could not have told her that she necessarily would be free
to leave upon completion of the search because, before conducting the
search, the police did not know whether she ultimately would be arrested.
They could have told the defendant, however, that, at that time, she was
not under arrest and that she was being detained solely for the purpose of
the safe and efficient execution of the search warrant.
15
Another such seizure is the Terry stop. Terry v. Ohio, 392 U.S. 1, 30,
88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); see footnote 11 of this opinion.
16
Although this factor invariably has been treated as an important one
for purposes of determining custody, many courts have concluded that,
under the circumstances of the particular case, advising the suspect that
he was not under arrest and was free to leave was insufficient to support
a conclusion that he was not in custody for purposes of Miranda, even
when the questioning was conducted in the suspect’s home. See, e.g., United
States v. Hashime, supra, 734 F.3d 284 (‘‘[T]o the extent that law enforcement
told [the defendant] that he did not have to answer questions and was
free to leave, that by itself does not make the interrogation [noncustodial].
Although a statement that the individual being interrogated is free to leave
may be highly probative of whether, in the totality of the circumstances, a
reasonable person would have reason to believe he was in custody, such a
statement is not . . . sufficient in and of itself to show a lack of custody.’’
[Internal quotation marks omitted.]); United States v. Cavazos, 668 F.3d
190, 195 (5th Cir. 2012) (‘‘The [g]overnment places significant emphasis on
the fact that the agents informed [the defendant] that the interview was
[noncustodial]. Such statements, while clearly relevant to a Miranda analy-
sis, are not a talismanic factor. . . . [Rather] [t]hey must be analyzed for
their effect on a reasonable person’s perception [at the time they are made],
and weighed against opposing facts.’’ [Citations omitted; internal quotation
marks omitted.]); United States v. Craighead, supra, 539 F.3d 1088 (‘‘The
mere recitation of the statement that the suspect is free to leave or terminate
the interview . . . does not render an interrogation [noncustodial] per se.
We must consider the delivery of these statements in the context of the
scene as a whole.’’ [Emphasis in original.]).
17
The state asserts that the defendant’s detention was akin to a Terry
stop; Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968);
which, as we previously noted; see footnote 11 of this opinion; has been
deemed noncustodial for purposes of Miranda. Under the circumstances
of the present case, we disagree with the state’s contention. Ordinarily, a
Terry stop is made by one or perhaps two officers, frequently in public
view. When an officer approaches and questions a suspect in accordance
with Terry, most often, it will be apparent to the suspect that the officer’s
inquiries are preliminary to more formal action, if any. Thus, although a
Terry stop entails a curtailment of the suspect’s freedom of movement that
is not slight or trivial, such a stop, like a traffic stop, has been characterized
as ‘‘comparatively nonthreatening’’ and ‘‘noncoercive . . . .’’ Berkemer v.
McCarty, supra, 468 U.S. 440. In marked contrast, the circumstances sur-
rounding the search in the present case—including the fact that it was
conducted out of public view by a large contingent of armed officers, none
of whom informed the defendant of the duration of her detention—leads
us to conclude that that search and Hicks’ questioning were conducted in
a coercive and intimidating environment.
18
See footnote 17 of this opinion.
19
The jury learned about the controlled purchases of heroin by the confi-
dential informants because, at trial, the defense introduced the search war-
rant affidavit into evidence. The informants did not testify at the suppression
hearing or at trial.
20
The state introduced conflicting testimony about where the police dis-
covered the buy money and the two cell phones. Neither testimonial inconsis-
tency, however, bears on our determination of whether the improper
admission of the defendant’s statements was harmful.