|
Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
|
CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Morse, 427
Supreme Judicial Court of Massachusetts,
Argued
Decided
Robert C. Cosgrove, Assistant District
Attorney, for the Commonwealth.
Kevin J. Reddington,
Before WILKINS, C.J., and ABRAMS, LYNCH, GREANEY,
FRIED,
GREANEY,
Justice.
The
Commonwealth appeals from an order entered in the Superior Court suppressing
statements made by the defendant, Patrick Morse, to law enforcement officers on
After
an evidentiary hearing, a judge entered a memorandum of decision and order in
which she ruled that (1) the police [427
Mass. 118] failed to give the
defendant timely Miranda warnings, (2) incriminating statements made by the
defendant prior to his receipt of Miranda warnings were inadmissible, and (3)
statements made by the defendant after he had received Miranda warnings were
tainted by the earlier interrogation, and thus also inadmissible. A single justice of this court allowed the
Commonwealth's application to pursue an interlocutory appeal. See
1. We
summarize the facts as found by the judge, all of which are supported by the
evidence, and which we accept. Commonwealth v. Jung, 420
On
the afternoon of June 24, 1995, after learning that Anna Kaudy was a friend of
Freeman, State police Sergeant Kevin Shea went to interview her at her
home. Shea told Kaudy that he was
investigating a murder and that the police wanted to talk to her companion,
Leonard Stanley. The defendant
telephoned Kaudy at approximately 4:30 P.M., while she was speaking with
Shea. Aware that the defendant was a
friend of Freeman, Shea asked to speak with him. Shea told the defendant that he was
investigating the murder of an elderly man in Avon and asked the defendant if
he could come to the Avon police station to talk with the police. Although the defendant expressed reluctance,
telling Shea that his automobile did not have enough gas for him to travel from
his home in Middleborough to Avon, he ultimately agreed to meet in Avon after
Shea had suggested meeting in Middleborough.
The defendant asked Shea if Kaudy could accompany him, and Shea
responded that she could. Shea left
Kaudy's house shortly thereafter.
At
approximately 7 P.M., the defendant and Kaudy arrived at the Avon police
station. Kaudy was interviewed in one
room by two officers, one of whom was Shea, and the defendant was [427 Mass. 119] interviewed in a separate room by two other officers, one of whom
was Trooper Brian L. Howe.
a. The first (Howe) interview. The defendant's interview room was small,
measuring approximately twelve feet by twenty feet, with windows, and containing tables and
chairs. During the interview, the
defendant was seated in a chair approximately six feet from Howe. He was asked questions by the officers, and
he also spoke in narrative form. The
defendant was not given Miranda warnings at this time.
Howe
told the defendant that the police were interested in his activities on
Thursday, June 22, 1995, and that they were looking for Freeman. The defendant responded that after completing
work at approximately noon on that day, he had gone to the Brockton home of Amy
McCormack, where he met Stanley and Freeman, with whom he spent the remainder
of the day. The defendant stated that he
left McCormack's house, alone, at approximately 10 P.M., and drove to
Middleborough where he met "Chris, Joe and a Jamaican," with whom he
traveled to Manomet Beach in Plymouth, arriving at approximately 11:30 P.M. He
was unable to provide last names for Chris and Joe, or a name for the individual
he described as a "Jamaican."
The defendant said that after spending the night in his vehicle on the
beach, while the three others slept outside, he woke at approximately noon the
following day, returned to Brockton, and when he could not locate his friends,
drove home to Middleborough. He returned
to McCormack's house between 6 and 7 P.M., where he met Stanley and Freeman,
and the three then proceeded to Borderland State Park with seven other
individuals where they stayed until midnight, after which the defendant
returned to McCormack's house. The
defendant was asked whether Stanley carried a knife and he responded that he
did, and that the last time he saw Stanley with the knife was four or five days
earlier. The defendant also described the
clothing Freeman and Stanley were wearing on Thursday.
Shea
joined the interview at approximately 7:30 P.M., and, in response to Howe's
request, the defendant repeated his story to Shea. After hearing the defendant's version of
events, Shea told him that Kaudy had recalled that on Thursday night he had
left McCormack's house together with Stanley and Freeman. The defendant responded that, while the three
may have left together, "they went their way and I went my way." Shea then left the interview room.
[427 Mass. 120] b. The second (Shea)
interview. On leaving the
defendant's interview room, Shea returned to speak with Kaudy who said that she
was sure that the three had left McCormack's house together, and that they
stated at the time that they were going to Bickford's Pancake House. She also told Shea that Stanley carried a
"Gerber" knife, Freeman carried a knife, and the defendant had a
toolbox in his vehicle.
Shea
then returned to speak with the defendant.
(FN1) On entering the room, Shea told
the defendant what Kaudy had told him.
The defendant "hung his head and stared at the floor." This indicated to Shea that the defendant
"wanted to get something off his chest, tell us something." Howe then left the interview room. Shea told the defendant that it was
"imperative that he be truthful ... because of the seriousness of the
crime." The defendant responded
that he had given Freeman and Stanley a ride to a Veterans of Foreign Wars Post
near Route 24 in an area off Harrison Boulevard in Avon. Freeman and Stanley had told the defendant
that they were planning "to do a b & e [breaking and entering] on some
old guy's house." Shea told the
defendant that he would like to hear the whole story and the defendant agreed
to tell him. At this point, which was
approximately forty‑five minutes after the defendant arrived at the
police station, Shea advised the defendant of his Miranda rights.
Thereafter,
the defendant made further statements to Shea, some of which were
incriminating. When the forty‑five
minute interview was completed, Shea asked the defendant if he "would mind
waiting around in case [the police] had any more questions." The defendant said "ok," left the
interview room, and went to the front of the station with Kaudy to have a
cigarette. The defendant was not
accompanied by any police officer. He
eventually went next door to the fire station and watched television. At some point, the time of which is unclear
from the
evidence, the defendant was
told that his car could not leave the station.
(FN2)
c. The third (Flaherty) interview. At approximately 2 A.M. on June 25, the
defendant was interviewed by State police Sergeant [427 Mass. 121] Joseph
Flaherty. Shea was present at this
interview. After the defendant was again
advised of his Miranda rights, Flaherty told the defendant that he had
information that the defendant, Freeman, and Stanley were involved in the
robbery and murder of Miskinis, and Flaherty asked the defendant if he wanted
to make a statement. The defendant
agreed to do so, but first left the room to say good‑bye to McCormack and
Kaudy. The defendant then made
additional statements, fully implicating himself, Freeman, and Stanley in the
planning and execution of the robbery and the murder. At the conclusion of this interview, the
defendant was placed under arrest.
The
judge found that during all of the interviews, the defendant was rational and
coherent, and responded to questions logically and appropriately. The atmosphere in the interviews was not threatening,
and there was no indication that the questioning was anything but courteous and
nonaggressive. The officers were in
plainclothes, no weapons were apparent, and there was never a large number of
officers present. The evidence did not
suggest that the defendant was under the influence of any substance or that he
did not understand the Miranda warnings when they were given.
d. The judge's rulings. The judge concluded that "the
defendant's waiver of his rights each time was made knowingly, voluntarily and
intelligently beyond a reasonable doubt."
(FN3) After applying the analysis
set forth in Commonwealth v. Bryant,
390 Mass. 729, 737, 459 N.E.2d 792 (1984), (FN4) the judge concluded that
Miranda warnings were not necessary before or during the first interview. (FN5)
She determined that Shea's statement to the defendant concerning[427 Mass. 122] the inconsistency between
his and Kaudy's versions of events "was not designed to induce an
incriminating response, but was merely intended to clarify what might have been
a minor, explicable inconsistency."
Applying Bryant to the circumstances of the
second interview, the judge concluded that, once Shea heard the defendant's
story and realized that it was not consistent with Kaudy's, the defendant
"should have been considered a suspect." Even if Shea did not consider the defendant
a suspect when he learned of the inconsistency, the judge determined that the
defendant "should have been considered a suspect once Shea rechecked with
[Kaudy] her version of the events and [Kaudy] had emphasized that she was
certain as to her account." The
judge stated that "Miranda warnings should have been given at the very
least after Shea rechecked the story with [Kaudy]." Accordingly, the judge ruled that the statement
that the defendant made regarding giving Freeman and Stanley a ride to Route 24
where they were going to do a "b & e on some old guy's house," as
well
as the observations Shea
made of the defendant's behavior at that time, were inadmissible. The judge further ruled that the later
statements made by the defendant to Shea and Flaherty were presumptively
tainted, and that this presumption was not overcome by the Commonwealth; accordingly, she suppressed those statements
as well.
[1]
2. In reviewing the judge's decision, we "give[ ] substantial deference to
the judge's ultimate findings and conclusions of law, but independently review[
] the correctness of the judge's application of constitutional principles to
the facts found." Commonwealth v. Magee, 423 Mass. 381,
384, 668 N.E.2d 339 (1996), quoting
Commonwealth v. Mello, 420 Mass. 375, 381 n. 8, 649 N.E.2d 1106
(1995). See Commonwealth v. Jung, 420 Mass. 675, 681, 651 N.E.2d 1211 (1995),
quoting Commonwealth v. Accaputo, 380
Mass. 435, 448 n. 18, 404 N.E.2d 1204 (1980).
The central issue of this appeal is whether the defendant timely was
given Miranda warnings, which requires a determination whether he was in
custody when he made the statement to Sergeant Shea about giving Freeman and
Stanley a ride.
[2][3][4]
Miranda warnings are only necessary where one is subject to "custodial
interrogation." Commonwealth v. Jung, supra at 688, 651
N.E.2d 1211, quoting Miranda v. Arizona,
384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). Custodial interrogation is "questioning
initiated by law enforcement[427
Mass. 123] officers after a person has been taken into
custody or otherwise deprived of his freedom of action in any significant
way." Id., quoting Miranda v. Arizona, supra.
"[T]he safeguards prescribed by
Miranda become applicable as soon as a suspect's freedom of action is
curtailed to a 'degree associated with formal arrest.' "
Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 3150, 82
L.Ed.2d 317 (1984), quoting California v.
Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275
(1983). "To find custodial
interrogation, the court must first examine all the circumstances surrounding
the exchange between the government agent and the suspect, then determine from
the perspective of a reasonable person in the suspect's shoes whether there was
(1) a formal arrest or restraint on freedom of movement of the degree
associated with a formal arrest and (2) express questioning or its functional
equivalent," United States v.
Ventura, 85 F.3d 708, 712 (1st Cir.1996), which includes "any words or
actions on the part of the police (other than those normally attendant to
arrest and custody) that the police should know are reasonably likely to elicit
an incriminating response from the suspect." Id. at 711, quoting Rhode Island v. Innis, 446 U.S. 291,
301, 100 S.Ct. 1682, 1689‑1690, 64 L.Ed.2d 297 (1980). See
Commonwealth v. Sheriff, 425 Mass. 186, 197, 680 N.E.2d 75 (1997);
Commonwealth v. Torres, 424 Mass. 792, 796‑797, 678 N.E.2d 847
(1997). Whether a suspect was subject to
custodial interrogation is, in the circumstances here, a question of Federal
constitutional law. Cf. Commonwealth v. Snyder, 413 Mass. 521,
531, 597 N.E.2d 1363 (1992).
[5]
The judge's analysis of the custody issue centered on Sergeant Shea's beliefs
regarding the defendant's status as a suspect.
In reaching her conclusion, the judge noted the similarities between the
second and the fourth Bryant factors,
and distinguished the factors by surmising that the "key to [the second]
factor ... would appear to be whether the focus is on the suspect." The judge granted the defendant's motion to
suppress principally because she concluded that, at the point Shea rechecked
the defendant's story with Kaudy, the defendant should have been considered a
suspect, and Shea should have immediately given him Miranda warnings. We agree that the defendant should have been
considered a suspect at the point identified by the judge. However, Federal decisional law makes clear
that this fact, in and of itself, does not carry the legal significance that
the judge attached to it.
[6]
In Stansbury v. California, 511 U.S.
318, 323‑324, 114 S.Ct. 1526, 1529‑1530, 128 L.Ed.2d 293 (1994),
the Supreme Court of the United States held that the subjective [427 Mass. 124] beliefs held by law enforcement officers are irrelevant in the
determination whether a person being questioned is in custody for purposes of
the receipt of Miranda warnings, except to the extent that those beliefs influence the objective conditions surrounding an
interrogation. See Commonwealth v. Damiano, 422 Mass. 10, 13, 660 N.E.2d 660 (1996);
Commonwealth v. Gallati, 40 Mass.App.Ct. 111, 114, 661 N.E.2d 948
(1996);
Commonwealth v. Sim, 39 Mass.App.Ct. 212, 220 n. 8, 654 N.E.2d 340
(1995). In Stansbury, the Court stated that "the initial determination
of custody depends on the objective circumstances of the interrogation, not on
the subjective views harbored by either the interrogating officers or the
person being questioned." Stansbury v. California, supra at 323,
114 S.Ct. at 1529. It is "the
compulsive aspect of custodial interrogation, and not the strength or content
of the government's suspicions at the time the questioning was conducted, which
led the Court to impose the Miranda
requirements with regard to custodial questioning." Id., quoting Beckwith v. United States, 425 U.S.
341, 346‑347, 96 S.Ct. 1612, 1616, 48 L.Ed.2d 1 (1976). Thus, "a police officer's subjective
view that the individual under questioning is a suspect, if undisclosed, does
not bear upon the question whether the individual is in custody for purposes of
Miranda.... Save as they are
communicated or otherwise manifested to the person being questioned, an
officer's evolving but unarticulated suspicions do not affect the objective
circumstances of an interrogation or interview, and thus cannot affect the
Miranda custody inquiry." Id. at 324, 114 S.Ct. at 1530. "An officer's knowledge or beliefs may
bear upon the custody issue if they are conveyed, by word or deed, to the
individual being questioned," but "[t]hose beliefs are relevant only
to the extent they would affect how a reasonable person in the position of the
individual being questioned would gauge the breadth of his or her 'freedom of
action.' " Id. at 325, 114 S.Ct. at 1530, quoting Berkemer v. McCarty, supra at 440, 104
S.Ct. at 3150.
[7]
These principles of Federal law instruct that the considerations stated in the
second Bryant factor (whether the
investigation has begun to focus on the suspect, including whether there is
probable cause to arrest the suspect) are material to the custody inquiry only
to the extent that an officer's suspicions influence the objective conditions
of an interrogation, such that a reasonable person in the position of the
person being questioned would [427
Mass. 125] not feel free to leave
the place of questioning. (FN6) The fact that the considerations in the
second Bryant factor no longer have
the significance they may once have had was emphasized by the United States Court of Appeals for the First Circuit
in United States v. Ventura, supra. In reversing a trial court ruling which had
relied, in part, on the considerations in the second Bryant factor, the court stated the following:
"Finally, we note that the [trial]
court, relying on outmoded circuit opinions, discussed certain factors, such as
whether there was probable cause to make an arrest and the officers' focus on
the defendants, which are not relevant to a
Miranda inquiry. At one time,
certain courts found these factors relevant, see, e.g., United States v. Henry, 604 F.2d 908, 915 (5th Cir.1979)
(articulating a four factor [427
Mass. 126] test for custody that
included these factors) [ (FN7)], but subsequent Supreme
Court decisions rejected this approach.
See, e.g., Berkemer, 468 U.S.
at 422, 104 S.Ct. at 3141 ... (emphasizing the objective nature of the
inquiry). Indeed, in light of these
cases, the Fifth Circuit repudiated its four‑factor test, announcing that
'[p]robable cause and focus become material to the custody inquiry only when
they influence a reasonable person's perception of the situation.'
United States v. Bengivenga, 845 F.2d 593, 596‑97 [(5th Cir.
1988) (en banc), cert. denied, 488 U.S. 924, 109 S.Ct. 306, 102 L.Ed.2d 325
(1988) ] (footnote omitted)." (FN8)
United States v. Ventura, supra at
712. As the court further emphasized,
and as we have stated above, "the ultimate inquiry is whether there was 'a
formal arrest or restraint on freedom of movement of the degree associated with
a formal arrest.' Thompson v. Keohane, [516 U.S. 99, 112,
116 S.Ct. 457, 465, 133 L.Ed.2d 383 (1995) ] (quotation marks and citations
omitted);
Stansbury v. California, [supra
at 323, 114 S.Ct. at 1529] (per curiam) (same)." United States v. Ventura, supra
at 710.
It
follows from what has been said, that the fact that Shea may have thought the
defendant was a suspect in the murder is of consequence only to the extent that
his beliefs would influence a reasonable person's perception of the
situation. We do not think that Shea's
beliefs, which were conveyed neither "by word [nor] deed," would have
indicated to a reasonable person in the defendant's position that he was
compelled to remain in the interview room and answer any question that followed
the moment that Shea realized the defendant's and Kaudy's accounts were
inconsistent, or the moment when Kaudy had emphasized that she was certain as
to her account. There was [427 Mass. 127] no evidence, nor did the judge find, that any suspicion of any
criminal activity on the defendant's part had been conveyed to him, or that the
nonaggressive, informal and nonthreatening tenor of the defendant's interview
had changed at this moment in time. Although
Shea may have harbored suspicions about the defendant's role in the murder, an
objective view of the circumstances surrounding the interview at the time the
defendant made the statement at issue does not disclose that there was a "
'restraint on [the defendant's] freedom of movement' of the degree associated
with a formal arrest," California v.
Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983),
quoting Oregon v. Mathiason, 429 U.S.
492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977), so as to place the
defendant in custody.
While
Shea's statement that the defendant "be truthful" was noncoercive,
see Commonwealth v. Mandile, 397
Mass. 410, 414‑415, 492 N.E.2d 74 (1986), the question remains whether
Shea's pointing out the inconsistency between the defendant's and Kaudy's
statements would suggest to a reasonable person in the defendant's position that he had
become a suspect in a criminal investigation, and therefore influenced his
perception that he was not free to leave the interview room. We conclude that the judge's determination
that Shea's statement "was not designed to induce an incriminating
response, but was merely intended to clarify what might have been a minor,
explicable inconsistency" is supported by the record and is not clearly
erroneous.
[8]
The defendant relies on a number of factors to support his contention that he
was in custody at the time he made the statement at issue to Shea. In particular, he notes that he asked
permission to speak to Kaudy and McCormack during the third interview, he asked
permission to smoke, and he was told that his vehicle was being impounded with
or without his consent. Each of these
incidents occurred after the defendant made the statement to Shea, and after he
had received Miranda warnings. That,
later in the evening, the defendant reasonably may have believed that he was
not free to leave is not pertinent to the question whether he was free to leave
at the time he made the statement to Shea.
Considering all the circumstances, we conclude that a reasonable person
in the defendant's position would not have understood that he was in custody at
the moment he made the statement at issue.
See Berkemer v. McCarty, [427 Mass. 128] 468 U.S. 420, 442, 104 S.Ct. 3138, 3151‑3152, 82 L.Ed.2d
317 (1984); Commonwealth v. Damiano, 422 Mass. 10,
13, 660 N.E.2d 660 (1996). (FN9)
Finally,
the judge made extensive findings that each time the defendant was advised of
his Miranda rights, he understood and waived those rights, and otherwise
voluntarily spoke to the police. Based
on these findings, she concluded that "the defendant's waiver of his
rights each time was made knowingly, voluntarily and intelligently beyond a
reasonable doubt." The judge's
findings and conclusions are fully supported by the evidence.
3.
Because we conclude that the defendant's Miranda rights were not violated
during the second interview, the statements made by the defendant following the
administration of Miranda warnings during that interview, as well as the
statements he made during the third interview were not tainted, and therefore
should not be suppressed.
So
much of the order of the Superior Court suppressing the defendant's statements
is reversed. An order is to enter
denying the defendant's motion to suppress in its entirety.
So ordered.
(FN1.) The judge designated this point as the
beginning of the second interview.
(FN2.) When Trooper Howe left the interview
room, he went outside the station to where the defendant had parked his
automobile. Looking in through the front
passenger side window, Howe noticed a dark discoloration on the seat belt which
in his opinion was consistent with blood.
It was Howe's observation that lead to the seizure of the automobile.
(FN3.) The judge noted that the defendant had
appeared to read two different Miranda warning cards and signed each one.
(FN4.) In
Commonwealth v. Bryant, 390 Mass. 729, 737, 459 N.E.2d 792 (1984), we set
forth four indicia of custody, drawn from Federal law, including "(1) the
place of the interrogation; (2) whether
the investigation has begun to focus on the suspect, including whether there is
probable cause to arrest the suspect;
(3) the nature of the interrogation, including whether the interview was
aggressive or, instead, informal and influenced in its contours by the suspect; and (4) whether, at the time the
incriminating statement was made, the suspect was free to end the interview by
leaving the locus of the interrogation or by asking the interrogator to leave,
as evidenced by whether the interview terminated with the defendant's
arrest."
(FN5.) In particular, the judge determined
that at the time of the interview, the investigation had not yet begun to focus
on the defendant; the defendant had come
to the police station voluntarily; there
did not exist probable cause to arrest the defendant; the nature of the interrogation was informal
and nonaggressive; and the defendant,
objectively, was free to end the interview by leaving the place of the
interrogation.
(FN6.) Our research discloses that the second Bryant factor has a dubious
history. Relying on United States v. Carollo, 507 F.2d 50 (5th Cir.), cert. denied,
423 U.S. 874, 96 S.Ct. 143, 46 L.Ed.2d 105 (1975), and Miranda v. Arizona, 384 U.S. 436, 444 n. 4, 86 S.Ct. 1602, 1612 n.
4, 16 L.Ed.2d 694 (1966), we first articulated this factor as pertinent to the
custody analysis in Commonwealth v. Haas,
373 Mass. 545, 553, 369 N.E.2d 692 (1977),
S.C., 398 Mass. 806, 501 N.E.2d 1154 (1986).
In Escobedo v. Illinois, 378 U.S. 478, 490‑491, 84 S.Ct. 1758,
1764‑1765, 12 L.Ed.2d 977 (1964), the United States Supreme Court held
that, among other considerations, where an "investigation is no longer a
general inquiry into an unsolved crime but has begun to focus on a particular
suspect ... the suspect has requested and been denied an opportunity to consult
with his lawyer, and the police have not effectively warned him of his absolute
constitutional right to remain silent, the accused has been denied 'the
Assistance of Counsel' in violation of the Sixth Amendment to the Constitution
... and that no statement elicited by the police during the interrogation may
be used against him at a criminal trial."
Subsequently, in Miranda v.
Arizona, 384 U.S. 436, 444 & n. 4, 86 S.Ct. 1602, 1612 & n. 4, 16
L.Ed.2d 694 (1966), the Court apparently retracted from the importance it had
placed on "focus" in Escobedo. After stating that "custodial
interrogation" means "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," id. at 444, 86 S.Ct. at 1612, the Court noted that "[t]his is
what we meant in Escobedo when we
spoke of an investigation which had focused on an accused." Id.
at 444 n. 4, 86 S.Ct. at 1612 n. 4. Thereafter, in
Beckwith v. United States, 425 U.S. 341,
346‑347, 96 S.Ct. 1612, 1616‑1617, 48 L.Ed.2d 1 (1976), quoting United States v. Caiello, 420 F.2d 471,
473 (2d Cir.1969), cert. denied, 397 U.S. 1039, 90 S.Ct. 1358, 25 L.Ed.2d 650
(1970), the Court stated that "[i]t was the compulsive aspect of custodial
interrogation, and not the strength or content of the government's suspicions
at the time the questioning was conducted, which led the court to impose the Miranda requirements with regard to
custodial questioning."
Thus, it is
questionable whether the second Bryant
factor was ever relevant to the Miranda inquiry. As we discuss below, even the Fifth Circuit
has renounced its relevance for purposes of the custody determination.
(FN7.) The United States Court of Appeals for
the Fifth Circuit in United States v.
Henry, 604 F.2d 908, 915‑916 (5th Cir.1979), relied on its earlier
decision in United States v. Carollo,
supra (see note 6, supra ).
(FN8.) The four‑factor test that the
court in United States v. Ventura, 85
F.3d 708, 712 (1st Cir.1996), disavowed is not the same as the Bryant test. As the United States Court of Appeals for the
Fifth Circuit noted in United States v.
Bengivenga, 845 F.2d 593, 595 (5th Cir.), cert. denied, 488 U.S. 924, 109
S.Ct. 306, 102 L.Ed.2d 325 (1988), the four factors included the
following: "(1) whether there was
probable cause to arrest the defendant, (2) whether the investigation was
focused on the defendant at the time of the interrogation, (3) whether the law
enforcement officer had a subjective intent to hold the defendant, and (4)
whether the defendant subjectively believed that her freedom [of action] was
significantly restricted."
(FN9.) The facts support the position that the
defendant did not view his freedom as curtailed. For example, even after being administered
Miranda warnings and concluding his interview with Sergeant Shea, the defendant
left the interview room, stepped outside the police station to speak with
Kaudy, and walked over to the fire station to watch television.