Even though Longmont police warned a man four times he was under arrest, told him "we are going to take you to jail" and stood in his doorway, the Colorado Supreme Court on Monday ruled that the man was not effectively in custody at the time.
The 4-3 decision from the Supreme Court meant the Longmont officers did not need to read Brent A. Willoughby his Miranda rights and, therefore, the incriminating statements he made while officers were inside his apartment can be used against him at trial.
Citing the officers' "conversational tone," the fact that the door "remained open" and Willoughby's ability to smoke a cigar in front of police, Chief Justice Brian D. Boatright explained in the majority opinion that on balance, "Willoughby’s freedom of movement wasn’t restricted to the degree associated with a formal arrest. Thus, he was not in custody at the time of the interrogation."
Justice Maria E. Berkenkotter disagreed. To her, the majority minimized the most important factor in Willoughby's 30-minute interaction with police: officers advised him multiple times he was under arrest.
"Would a reasonable person whose only way out of their home was blocked by an uninvited officer after repeatedly being told that they were under arrest and had to go to jail — really believe that they were not deprived of their freedom to the degree associated with formal arrest? The answer, I suggest, is no," Berkenkotter wrote for herself and Justices Monica M. Márquez and Richard L. Gabriel.
The case implicated Miranda v. Arizona, the landmark U.S. Supreme Court decision that held police must provide certain warnings to a criminal suspect before they interrogate him in custody, namely his right to silence and to the presence of an attorney. A violation of Miranda can result in the suspect's incriminating statements being excluded, or suppressed, from the evidence at trial.
There was no dispute that Willoughby's questioning constituted an interrogation. Instead, the issue was whether he was in custody.
On the evening of Oct. 19, 2021, four Longmont officers went to Willoughby's apartment based on claims that he threatened his girlfriend and destroyed her property. The officers treated the allegations as domestic violence, which, under Colorado law, requires arrest when there is probable cause.
Willoughby did not answer the door, but instead appeared on his second-floor balcony to speak to the officers below. Body-worn camera footage captured the interaction.
"Brent, you have two choices: You can come downstairs," said Officer Chrystie Wheeler, "or I get a warrant for your arrest."
Willoughby denied the allegations and started talking about his girlfriend. Several minutes later, Officer Walter Arvisais and Wheeler agreed that Wheeler would leave to obtain an arrest warrant. Arvisais remained below Willoughby's balcony and made it clear Willoughby would be arrested.
"We have probable cause," the officer said. "At this time, you are under arrest for criminal mischief and domestic violence."
Arvisais repeated three more times that Willoughby was under arrest and that they could not "walk away from this" because the officers would be liable under the mandatory-arrest law.
"We are going to take you to jail," Arvisais added.
Willoughby grew emotional and asked if Arvisais would look inside his apartment at evidence that would allegedly clear him of charges.
"I'm not gonna lie to you and tell you you’re not going to jail," Arvisais responded. If Willoughby showed him evidence that proved his side of the story, "then it will probably change you going to jail, but I’m not going to tell you one way or another."
Arvisais then entered the apartment. Although Willoughby did not consent, another officer stood inside the entryway holding the door open. While Willoughby talked to Arvisais, a fourth officer called Wheeler to tell her to come back, as Willoughby had allowed them inside. Upon Wheeler's return, she began questioning Willoughby.
Without reading Willoughby his Miranda rights, Wheeler got Willoughby to admit to a potential crime. The officers arrested him and Boulder County prosecutors charged Willoughby with six counts of domestic violence-related offenses.
Willoughby attempted to suppress his incriminating statements, arguing he was in custody and police had not given him a Miranda warning. District Court Judge Dea M. Lindsay agreed, finding a reasonable person in Willoughby's position would have felt "unable to leave." Prosecutors appealed directly to the Supreme Court.
Boatright, in the majority's March 6 opinion, noted Lindsay had used the incorrect standard. Custody is not defined by whether a person is "free to leave," but whether their movement is restricted in a way that resembles a formal arrest. There are multiple factors to consider when answering that question.
Boatright acknowledged Arvisais' repeated statements that Willoughby was under arrest were "significant." But officers also visited the home in the "early evening," they asked "open-ended questions" and they even let Willoughby smoke a cigar during the encounter.
"No one who had their freedom of movement restrained to the degree associated with a formal arrest would reasonably feel like they could smoke a cigar, let alone without asking for permission," wrote Boatright.
Finally, Arvisais suggested going to jail was not a foregone conclusion if Willoughby had exculpatory evidence. For those reasons, the majority declined to find Willoughby was effectively in custody.
The dissenting justices believed the majority failed to recognize the importance of Arvisais' repeated assertions that Willoughby was under arrest and the officers' stated obligation to arrest him for a domestic violence offense.
"Officer Arvisais explained to Willoughby why the police wanted him to come downstairs and why he had to be arrested: that is, he committed a crime of domestic violence, a mandatory-arrest crime," Berkenkotter wrote. "The majority doesn’t even mention that statement, let alone consider the impact it would have on a reasonable person gauging their breadth of freedom."
She added that the officers made clear they did not simply want to talk to Willoughby — they wanted to take him to jail. The fact that Arvisais allowed Willoughby to smoke changed the circumstances little, in her view.
"(T)he message was clear: you are under arrest, and we are just waiting until we can get close enough to handcuff you to take you to jail," Berkenkotter wrote.
The case is People v. Willoughby.
