In re E.G.

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well
as formal revision before publication in the New Hampshire Reports. Readers are
requested to notify the Reporter, Supreme Court of New Hampshire, One Charles
Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that
corrections may be made before the opinion goes to press. Errors may be
reported by E-mail at the following address: reporter@courts.state.nh.us.
Opinions are available on the Internet by 9:00 a.m. on the morning of their
release. The direct address of the court's home page is:
http://www.courts.state.nh.us/supreme.

THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

10th Circuit Court-Derry Family Division
No. 2017-0375

IN RE E.G.

Argued: February 14, 2018
Opinion Issued: August 17, 2018

Gordon J. MacDonald, attorney general (Sean R. Locke, assistant
attorney general, on the memorandum of law and orally), for the State.

Christopher M. Johnson, chief appellate defender, of Concord, on the
brief, and Eric S. Wolpin orally, for the juvenile.

LYNN, C.J. The juvenile, E.G., appeals the Circuit Court’s (Leonard, J.)
finding of delinquency, contending that the court erred in denying his motion
to suppress statements given by him to the arresting officer without Miranda
warnings. See Miranda v. Arizona, 384 U.S. 436 (1966). We affirm.

The trial court found or the record reflects the following facts. On
February 10, 2017, the Londonderry police and fire departments were
dispatched to the D. family residence on a report of an incapacitated juvenile.
When Lieutenant Dion of the fire department arrived, he found a teenaged boy,
D.D., conscious, but severely intoxicated and vomiting. D.D. was being helped
by another juvenile, later identified as his brother, R.D. “[O]ut of medical
concern for polysubstance abuse,” Dion quickly scanned the room and, inside
a Budweiser box, saw a plastic sandwich bag containing a green leafy
substance he believed to be marijuana.
 Shortly after Dion’s arrival, Officer Garcia of the police department
reached the scene. Outside the D. residence, Garcia observed E.G. and his
brother, R.G., in the driveway near a vehicle. Garcia entered the residence and
went upstairs to D.D.’s bedroom. Officer Mottram of the police department
arrived at the D. residence a minute later.

Upon entering D.D.’s bedroom, Garcia immediately smelled burnt
marijuana. Dion told Garcia that he had seen a bag of marijuana in a
Budweiser box. Garcia immediately looked in the box, but the bag was no
longer there. “[B]elieving that the juveniles outside could have removed the
marijuana and that a crime had occurred,” Garcia radioed to Mottram and
“instructed [him] to make sure that the two juveniles outside, [E.G.] and R.G.,
were not allowed to leave the scene.”

After D.D. was taken from the home by ambulance, Garcia asked
“Mottram to tell [E.G.] and R.G. to come into the residence.” E.G’s and R.G.’s
mother, who was also at the D. residence, gave Garcia permission to speak
with them. Garcia, along with E.G., R.G., their mother (Mrs. G.), and R.D.,
returned to D.D.’s bedroom. The three juveniles sat on one of the beds in the
room while Garcia and Mrs. G. stood next to the bed. The juveniles were
neither under arrest nor put in handcuffs, nor was Garcia “blocking the
doorway or otherwise obstructing their ability to leave.”

The court noted that there had been “conflicting testimony about
whether Mrs. G[.] remained in the bedroom for the duration of” the juveniles’
questioning. Garcia testified that Mrs. G. was in the room the entire time.
Mrs. G., however, testified that Garcia “asked her to step out of the room at
some point during his questioning.” Mrs. G. further testified that she wanted
to stay in the room, but it was not clear to the court whether Mrs. G. conveyed
that preference to Garcia.

Garcia asked the juveniles “to tell him what had happened” and they
responded that D.D. had rapidly drunk half a bottle of vodka. Garcia asked
the juveniles about the marijuana smell and all three denied using marijuana.
Garcia then told them that Dion, a “neutral person,” had seen a bag of
marijuana which was no longer there. E.G. then admitted to removing the
marijuana and throwing it under his mother’s vehicle. Garcia radioed outside
to Mottram, who found the marijuana under Mrs. G.’s car. Garcia testified that
after E.G’s admission, and on the advice of a third officer who had arrived on
the scene, he placed E.G. under arrest.

E.G. was petitioned as a delinquent for having committed the offenses of
falsifying physical evidence, see RSA 641:6 (2016), and possession of drugs, see
RSA 318-B:2 (2017). The delinquency petitions indicate that, at the time of the
alleged offenses, E.G. was sixteen years old. The petitions also alleged that
E.G.’s case had been screened and deemed inappropriate for diversion because

2
E.G. was “being petitioned as a delinquent for a felony level charge, and has
several previous police contacts where he was involved in disturbances,
criminal mischief and reckless conduct.”

E.G. filed a motion to suppress, among other things, “all evidence
obtained in violation of [his] right against self-incrimination.” Specifically, he
contended that he had been subjected to custodial interrogation by Garcia
without having been informed of his rights in accordance with Miranda and
State v. Benoit, 126 N.H. 6 (1985). The trial court denied the motion. An
adjudicatory hearing was held, at which the State introduced Garcia’s
testimony that E.G. “admitted that he had taken the marijuana out of the box
and brought it outside and threw it under the vehicle.” After the State’s
presentation of evidence, the court dismissed the petition alleging falsification
of physical evidence, but found E.G. delinquent on the drug possession charge.

On appeal, E.G. contends that the trial court erroneously denied his
motion to suppress because it wrongly determined that he was not in custody
when questioned by Garcia. He challenges the introduction of his statements
to Garcia under both Part I, Article 15 of the New Hampshire Constitution and
the Fifth and Fourteenth Amendments to the United States Constitution. We
first address the defendant’s claim under the State Constitution and rely upon
federal law only to aid in our analysis. State v. Ball, 124 N.H. 226, 231-33
(1983).

“Before the [juvenile’s] responses made during a custodial interrogation
may be used as evidence against him, the State must prove, beyond a
reasonable doubt, that it did not violate his constitutional rights under
Miranda.” State v. McKenna, 166 N.H. 671, 676 (2014) (quotation and
brackets omitted). As the foregoing implies, two conditions must be met, as a
general rule, “before Miranda and Benoit warnings are required: (1) the suspect
must be ‘in custody’; and (2) [he] must be subject to ‘interrogation.’” In re B.C.,
167 N.H. 338, 342 (2015). In this appeal, the only issue before us is whether
the trial court erred in finding that E.G. was not in custody. As the State
notes, the trial court made no finding as to whether Garcia’s questioning of
E.G. constituted interrogation and that issue is not raised on appeal.

We first address, however, a preliminary argument by the State that
Miranda warnings were not required because the interaction at issue was
merely an investigatory stop. The State contends that Garcia’s detention of
E.G. was warranted because, once Garcia smelled burnt marijuana and
learned that the bag observed by Dion was missing, he had reasonable
suspicion that one of the juveniles had engaged in criminal activity. See State
v. Joyce, 159 N.H. 440, 444 (2009) (noting two-step inquiry for determining
whether police conducted lawful investigatory stop: (1) when was the defendant
seized; and (2) “at that time, [did] the officers possess[] a reasonable suspicion
that the defendant was, had been or was about to be engaged in criminal

3
activity” (quotation and brackets omitted)). The State further asserts that the
scope of Garcia’s questioning was “limited . . . to confirming or dispelling the
suspicion he had developed.” See State v. Turmel, 150 N.H. 377, 383 (2003)
(noting that “[d]uring a legal investigatory stop, an officer may ask the detainee
a moderate number of questions to determine his identity and to try to obtain
information confirming or dispelling the officer’s suspicions”). Thus, the State
argues, Garcia’s questioning “amounted to nothing more than a Terry stop, to
which Miranda does not apply.” See Terry v. Ohio, 392 U.S. 1 (1968).

We recognized, in State v. Turmel, that although the subject of an
investigatory, or Terry, stop is “‘seized’ in a Fourth Amendment sense[,] . . .
[s]uch temporary custody does not . . . constitute custody for Miranda
purposes and, therefore, Miranda warnings are not triggered.” Turmel, 150
N.H. at 383. As explained by the First Circuit Court of Appeals, “[a]s a general
rule, Terry stops do not implicate the requirements of Miranda, because[,] . . .
though inherently somewhat coercive, [they] do not usually involve the type of
police dominated or compelling atmosphere which necessitates Miranda
warnings.” United States v. Streifel, 781 F.2d 953, 958 (1st Cir. 1986)
(quotation omitted).

Nevertheless, even assuming, without deciding, that Garcia had
reasonable suspicion to conduct an investigatory stop, the subject of an
investigatory stop “must be advised of his Miranda rights if and when he is
‘subjected to restraints comparable to those of a formal arrest.’” Id. (quoting
Berkemer v. McCarty, 468 U.S. 420, 441 (1984)). Thus, even granting the
initial validity of Garcia’s detention of E.G., we must still determine “whether
an otherwise valid Terry stop escalated into a de facto arrest necessitating the
administration of Miranda warnings.” United States v. Trueber, 238 F.3d 79,
93 (1st Cir. 2001).

There is no scientifically precise formula that enables courts
to distinguish between investigatory stops and “de facto arrests[.”]
The ultimate inquiry, however, is whether there was a formal arrest
or restraint on freedom of movement of the degree associated with
a formal arrest. In assessing whether there was [such] a restraint
on freedom of movement, a court must examine all the
circumstances surrounding the interrogation. This is an objective
test: the only relevant inquiry is how a reasonable man in the
suspect’s shoes would have understood his situation.

Id. (quotations, citations, and ellipses omitted); cf. Turmel, 150 N.H. at 385
(noting, in determining that defendant was not in custody during investigatory
stop, that “defendant could [have] reasonably conclude[d] that he was not free
to leave, but not that he was under the functional equivalent of arrest”).

4
 The “ultimate inquiry” identified in Trueber, 238 F.3d at 793, therefore,
is the same test we use to determine whether any interaction with police is
custodial under Part I, Article 15, as that test also begins with the recognition
that “[c]ustody entitling a [person] to Miranda protections requires formal
arrest or restraint on freedom of movement of the degree associated with formal
arrest.” McKenna, 166 N.H. at 676 (quotation omitted). Accordingly, we now
turn to the determination of whether E.G. was “in custody,” for purposes of
Part I, Article 15, under that test.

Here, in a finding not challenged on appeal, the trial court determined
that E.G. was not under arrest. “In the absence of formal arrest, we must
determine whether [E.G.’s] freedom of movement was sufficiently curtailed by
considering how a reasonable person in [E.G.’s] position would have
understood the situation.” Id. at 676-77 (quotation omitted). But see Turmel,
150 N.H. at 383 (observing that “[t]he police may temporarily detain a suspect
for investigatory purposes,” and “[s]uch temporary custody does not, however,
constitute custody for Miranda purposes”). “To determine whether a
reasonable person in [a suspect’s] position would believe himself in custody,
the trial court should consider the totality of the circumstances of the
encounter.” McKenna, 166 N.H. at 677 (quotation omitted). Factors to be
considered include, but are not limited to: “the number of officers present, the
degree to which the suspect was physically restrained, the interview’s duration
and character, and the suspect’s familiarity with his surroundings.” Id.
(quotation omitted).

Our standard of review on appeal recognizes that the custody
determination “is a law-dominated mixed question in which ‘the crucial
question entails an evaluation made after determination of the historical facts:
if encountered by a “reasonable person,” would the identified circumstances
add up to custody as defined in Miranda?’” State v. Ford, 144 N.H. 57, 62-63
(1999) (quoting Thompson v. Keohane, 516 U.S. 99, 113 (1995)) (brackets
omitted). “The trier of fact is not ‘in an appreciably better position’ than we to
answer that question.” Id. at 63 (quoting Thompson, 516 U.S. at 114-15).
Accordingly, although we will not overturn the trial court’s findings of historical
fact “unless they are contrary to the manifest weight of the evidence, we review
the ultimate determination of custody de novo.” Id.

In determining that E.G. was not in custody, the trial court reasoned:
[E.G.] was questioned in the familiar and comfortable location of
his friend’s bedroom. He was questioned by one police officer in
the presence of his two friends and his mother, at least part of the
time, and with her permission. He was therefore not subjected to
“incommunicado” questioning in a “police-dominated atmosphere”
unlike the situation in Miranda. [E.G.] was not restrained, in any
manner, and was free to leave the room, if he so chose.

5
E.G. challenges the trial court’s conclusion, arguing that the following factors
support the conclusion that he was in custody: (1) “the police created a police-
dominated atmosphere by controlling [his] movements”; (2) “the interrogation
was accusatory”; (3) he was at no point told that he was free to leave or to
terminate the interrogation; (4) he was a juvenile; and (5) “the police initiated
contact with [him], rather than he with them.” The State, on the other hand,
argues that the trial court’s determination that E.G. was not in custody is
supported by the following factors: his “familiarity with his surroundings, the
presence of one officer, the presence of other non-law enforcement individuals,
the lack of physical restraint, the brief nature of the interview, the lack of
aggressive questioning, E.G.’s prior experience with law enforcement, and the
authorization and presence of E.G.’s mother.”

We first address E.G.’s argument that his “status as a juvenile must
influence the determination of the custody issue,” as it has relevance to our
consideration of other factors. See In re D.L.H., Jr., 32 N.E.3d 1075, 1088 (Ill.
2015) (noting that “[w]here, as here, the person questioned is a juvenile, the
reasonable person standard is modified to take that fact into account”). With
respect to his federal constitutional challenge, E.G. is certainly correct. In
J.D.B. v. North Carolina, 564 U.S. 261 (2011), the United States Supreme
Court held that “so long as the child’s age was known to the officer at the time
of police questioning, or would have been objectively apparent to a reasonable
officer, its inclusion in the [Miranda] custody analysis is consistent with the
objective nature of that test.” J.D.B., 564 U.S. at 277. Indeed, the State
concedes, citing J.D.B., that “[f]or juveniles, age may also be a factor.”

With respect to the State Constitution, we have not explicitly held that
juvenile status is a factor in the Miranda custody analysis. In In re B.C., we
noted, citing J.D.B. for support, a distinction between adults and juveniles
subject to police questioning. In re B.C., 167 N.H. at 346. We observed, in
distinguishing a case cited by the State, that “while the arrestee in [the cited
case] was an adult, [B.C.] was fourteen years old at the time of her arrest, and,
therefore, was more likely to feel coercive pressure as a result of her arrest.”
Id. We had no need, however, to determine whether a reasonable person in
B.C.’s position would believe herself in custody — and therefore no reason to
determine whether B.C.’s juvenile status would be a factor in that
determination — because B.C. was actually under formal arrest at the time of
interrogation. Id. at 342-43.

Nevertheless, “[t]his State long has recognized the common-sense fact
that a child does not possess the discretion and experience of an adult and
that special procedures are required to protect juveniles, who possess
immature judgment.” Benoit, 126 N.H. at 11 (citation omitted). Moreover, we
noted in Benoit that “[s]cholars, courts and legislators have recognized that a
child’s immaturity and inexperience place him or her at a greater disadvantage
than an adult in dealing with the police.” Id. at 15. Accordingly, in that case,

6
“[w]e adopted a comprehensive, fifteen-factor test for trial courts to use in
evaluating a juvenile’s purported waiver” of the fundamental rights guaranteed
under Part I, Article 15 of the New Hampshire Constitution. State v. Farrell, 145 N.H. 733, 737 (2001); see also Benoit, 126 N.H. at 15, 18-19.

From Benoit’s recognition that juveniles are at a “greater disadvantage”
than adults in police encounters, Benoit, 126 N.H. at 15, it takes no great leap
of logic to conclude, as did the United States Supreme Court, that “a
reasonable child subjected to police questioning will sometimes feel pressured
to submit when a reasonable adult would feel free to go.” J.D.B., 564 U.S. at
272. Accordingly, we now hold that a juvenile’s age at the time of questioning
is an appropriate factor to consider in the custody analysis under Part I, Article
15 of the New Hampshire Constitution. Because the State does not claim that
Garcia was unaware of E.G.’s status as a juvenile, we have no occasion to
address in this case the effect, if any, of an officer’s lack of knowledge of such
status on the custody analysis.

E.G. further contends that “the police created a police-dominated
atmosphere by controlling [his] movements, both in first ordering him not to
leave the scene, and later in ordering him into the house to speak with Garcia.”
The trial court found that, when Mottram arrived on the scene, Garcia
instructed him to not allow E.G. and R.G. to leave the scene and, thereafter,
Mottram told the boys to go into the D. residence. However, the trial court
made no finding as to whether Garcia’s instruction to Mottram to detain E.G.
and R.G. was ever communicated to the juveniles. In fact, the only testimony
on the issue was Garcia’s affirmative response to the prosecutor’s suggestion
that Mottram “presumably” told the juveniles to remain on the premises.
Because the State bore the burden of proof at the suppression hearing and
failed to offer evidence as to what, if anything, Mottram said to E.G. and R.G.
in response to Garcia’s instructions, we assume for purposes of our analysis
that Mottram did tell them not to leave, and that this had the effect of causing
E.G. and R.G. to be “seized.”

The fact that Mottram summoned E.G. to come inside the residence and
go upstairs to D.D.’s bedroom in order to speak with Garcia is also a factor that
we consider in our analysis. However, we disagree with E.G. that these actions
“contributed to the creation of a police-dominated atmosphere.”

In McKenna, we cited with approval the analysis in United States v.
Mittel-Carey, 493 F.3d 36 (1st Cir. 2007), in which the First Circuit Court of
Appeals “concluded that the level of control that the officers exercised over the
defendant during the interrogation conducted at the defendant’s home carried
the most weight in its custody analysis.” McKenna, 166 N.H. at 678. We
further noted that the Mittel-Carey court “explained that this factor weighed
heavily in favor of custody, despite the defendant’s familiarity with the

7
surroundings.” Id. However, the level of control that the officers exercised in
Mittel-Carey is readily distinguishable from the present case.

In Mittel-Carey, during an encounter with officers that lasted one and
one-half to two hours, the defendant was “ordered to dress, go downstairs, and
was told where to sit; he was physically separated from his girlfriend and not
allowed to speak to her alone; and he was escorted by agents on the three
occasions that he was permitted to move, including while he used the
bathroom.” Mittel-Carey, 493 F.3d at 40. Those facts demonstrate
significantly more control than here, where Mottram told E.G. and R.G. to
return to the bedroom of their friend’s house but did not escort them, and E.G.
and R.G. were joined in the bedroom by their mother and their friend.
Accordingly, although the fact that Garcia exercised control over E.G. does
weigh in favor of a finding of custody, it does not weigh heavily due to the
limited nature of that control.

E.G. next argues that a finding that he was in custody is further
supported by the accusatory nature of Garcia’s questions and statements. The
State contends that Garcia’s questioning was not accusatory. “The accusatory
nature of questioning is widely recognized as a factor weighing in favor of a
finding of police custody.” McKenna, 166 N.H. at 681. “Consistent with this
widely accepted approach, we have repeatedly recognized the importance of the
absence or presence of accusatory questioning in our analysis of custody,
contrasting accusatory questioning, which weighs in favor of custody, with
questioning of a purely general nature, which supports a determination of no
custody.” Id. at 682. Thus, “[i]n our analysis, we consider the presence or
absence of both accusatory questions and accusatory statements made during
questioning.” Id. at 681.

The trial court found the following facts regarding Garcia’s questioning of
E.G., R.G., and R.D.

Officer Garcia asked the boys to tell him what had happened
and the juveniles told him D.D. had . . . quickly consumed a ½
bottle of vodka. Officer Garcia asked [them] about the smell of
marijuana and all three boys denied using marijuana. Officer
Garcia told them that Lieutenant Dion who was a neutral person,
[saw] a bag of marijuana in the bedroom, but the marijuana was
now missing. [Garcia] asked again where the marijuana was.
[E.G.] then admitted to removing the marijuana from the room and
throwing it under his mother’s vehicle.
We consider the character of this exchange to be similar to the
questioning that can lawfully occur during an investigatory stop. “During a
legal investigatory stop, an officer may ask the detainee a moderate number of
questions to determine his identity and to try to obtain information confirming

8
or dispelling the officer’s suspicions.” Turmel, 150 N.H. at 383; see also
McCarty, 468 U.S. at 439 (“Under the Fourth Amendment . . . a policeman who
lacks probable cause but whose observations lead him reasonably to suspect
that a particular person has committed, is committing, or is about to commit a
crime, may detain that person briefly in order to investigate the circumstances
that provoke suspicion.” (quotations omitted)). “The scope of the stop, however,
must be carefully tailored to its underlying justification—to confirm or to dispel
the officer’s particular suspicion.” Turmel, 150 N.H. at 383. “The stop must
last no longer than is necessary to effectuate its purpose.” Id.

That is what happened here. Garcia had a suspicion that one or more of
the boys had committed the crime of drug possession based upon the smell of
burnt marijuana and Dion’s observations. Garcia detained and briefly
questioned the boys regarding his suspicions, his observations, and the
observations of Dion. This is consistent with the scope and purpose of a valid
investigatory stop, which does not require Miranda warnings.

The circumstances of Garcia’s questioning are fundamentally different
from cases in which we have found that the accusatory nature of questions
weighed in favor of a finding of custody. In State v. Jennings, 155 N.H. 768
(2007), the police investigated an allegation that the defendant had committed
a sexual assault. Jennings, 155 N.H. at 769. The next day, police officers
drove to the defendant’s residence, convinced the defendant to return with
them to the police station, and questioned him in an interview room in the
police station. Id. at 769-71. Similarly, in McKenna, the police received a
report that the defendant had committed a sexual assault. McKenna, 166 N.H.
at 674. Police officers investigated the report, obtained an arrest warrant,
drove to the defendant’s restaurant, and then questioned him for more than an
hour. Id. at 674-75.

Neither of these cases involved a situation, such as here, where a police
officer in the field developed a reasonable suspicion that a crime had occurred
and investigated that potential crime scene by briefly asking the people present
about their knowledge of, or involvement in, the suspected criminal activity.
For example, if an officer pulls over a vehicle for a traffic violation and
thereafter develops a reasonable suspicion that the driver is intoxicated, i.e., a
suspicion that another crime may have occurred, as part of the lawful
investigatory stop, the officer is permitted to ask the driver about his use of
alcohol in an attempt to confirm or dispel the officer’s suspicion without
providing Miranda warnings. See McCarty, 468 U.S. at 437-39 (reasoning that
traffic stops do not exert sufficient pressure upon a detained person that
Miranda warnings are necessary in all cases). The same is true here. See
Podlaski v. Butterworth, 677 F.2d 8, 9 (1st Cir. 1982) (reasoning that Miranda
warnings are not required prior to “general on-the-scene questioning as to facts
surrounding a crime”; nor are they required “simply because the questioned
person is one whom the police suspect” (quotations, brackets, and ellipsis

9
omitted)). Garcia arrived at the scene to help the fire department, as needed.
He smelled burnt marijuana and, although he did not personally observe it, he
was told that there had been a bag containing a leafy green substance. He
briefly detained the people who had been present at the potential crime scene
and questioned them about drug possession. See id. (determining that
defendant was not in custody because he was not told he was under arrest, he
was in a home familiar to him, and “police activity was consistent with
investigatory questioning”). In this context, questioning of this type, even if
directed at suspected criminal activity, does not weigh heavily in favor of a
finding of custody.

E.G. next notes that there is no evidence he was ever informed that he
was not under arrest or that he was free to terminate questioning.

[T]he extent to which the suspect is made aware that he or she is
free to refrain from answering questions or to end the interview at
will often defines the custodial setting. Conversely, the lack of a
police advisement that the suspect is at liberty to decline to answer
questions or free to leave is a significant indication of a custodial
detention.

United States v. Griffin, 7 F.3d 1512, 1518 (10th Cir. 1993) (citations omitted);
see also McKenna, 166 N.H. at 679-80 (citing Griffin for same proposition). We
have considered such evidence even where the suspect was admittedly not free
to leave because he was seized, in a Fourth Amendment sense, in a Terry stop.
See Turmel, 150 N.H. at 385 (noting that officer told defendant during Terry
stop that he was not under arrest).

Although Garcia did not put the juveniles in handcuffs or tell them that
they were under arrest, E.G. is correct that Garcia also did not tell them that
they were not under arrest or that they did not have to answer his questions.
Accordingly, this factor weighs slightly in favor of a finding of custody.

E.G. further points out that he was not allowed to leave even at the
conclusion of police questioning. See, e.g., Howes v. Fields, 565 U.S. 499, 509
(2012) (noting, as factor relevant to Miranda custody determination, “the
release of the interviewee at the end of the questioning”). Under the
circumstances of this case, we disagree that this fact weighs in favor of a
finding of custody. The fact that a defendant is allowed to leave at the
conclusion of police questioning may be evidence that the defendant was not in
custody because it “indicates to a court that police did not have sufficient
information to take the suspect into custody before the interrogation, since
even after the interrogation the arrest was not made, and, as probably no
grounds existed to take the suspect into custody, custody would have been
illegal.” 3 William E. Ringel, Searches & Seizures, Arrests and Confessions

10
§ 27:9, at 27-35 to 27-36 (2d ed. 2012). However, when a defendant makes
inculpatory statements that support his subsequent arrest, we cannot
retrospectively determine from the fact of the defendant’s arrest whether the
defendant was in custody prior to those statements. Here, E.G. was arrested
after his inculpatory statements and Mottram’s subsequent recovery of the
marijuana. Because Garcia was aware of these facts when he made the
decision to arrest E.G., we have no way of knowing from the fact of E.G.’s
arrest whether Garcia would have taken E.G. into custody had E.G. not made
those statements. Accordingly, the fact that E.G. was arrested at the
conclusion of Garcia’s questioning does not factor into our analysis of whether
E.G. was in custody at the time he made the statements in question.

The final factor E.G. argues in support of a finding that he was in
custody is that “the police initiated contact with [him], rather than he with
them.” See McKenna, 166 N.H. at 684 (“Also relevant to our assessment of the
character of the interrogation is the fact that the police initiated the contact
with the defendant.”). Here, although the record shows that Garcia summoned
E.G. back into the residence for questioning, the suppression hearing
testimony did not clearly identify, and the trial court made no finding
regarding, who called the authorities for emergency assistance for D.D., a fact
that could be relevant to our custody determination. See State v. MacDonald,
402 P.3d 91, 100 (Utah Ct. App. 2017) (finding defendant not in custody for
Miranda purposes where, inter alia, he “initiated contact with authorities by
having his roommate call 911 when he found [the allegedly abused child]
unresponsive”); see also Self v. Milyard, No. 11-cv-00502-REB, 2012 WL
365998, at *19 (D. Colo. Feb. 2, 2012) (dismissing habeas corpus challenge to
state court decision finding applicant not in custody for Miranda purposes at
crime scene when, inter alia, he “initiated contact with authorities by calling
911, to which a reasonable person would expect both paramedics and police
would respond” (quotation omitted)). Thus, although we cannot say that, as an
initiator of the contact, E.G. should have understood that the police likely
would ask him questions, the record does make it clear that this case does not
involve a police-initiated contact — that is, it is clear that someone called the
police to the scene. Accordingly, we conclude that this factor does not weigh in
favor of a finding of custody.

Turning to the State’s arguments, the State contends that E.G’s
familiarity with his surroundings weighs against a finding of custody. “[A]
defendant’s familiarity with his surroundings, taken in isolation, often weighs
against a finding of custody.” McKenna, 166 N.H. at 685; see also United
States v. Parker, 262 F.3d 415, 419 (4th Cir. 2001) (determining that defendant
was not in custody, in part, because she was questioned by officers in a
bedroom in her home and a relative entered the room on two occasions during
the questioning); Podlaski, 677 F.2d at 9 (determining that defendant was not
in custody, in part, because he was questioned on the back cellar steps of his
own house, which was a familiar location). We note, however, that “the

11
location of questioning is not, by itself, determinative: a defendant may be in
custody in his own home but not in custody at a police station.” McKenna,
166 N.H. at 685 (quotation and brackets omitted).

Here, E.G. was questioned in his friend’s bedroom. While E.G. was likely
less familiar with this location than he would have been at his own house, it
was still a familiar location, and certainly a less custodial setting than a police
station. See id. at 693 (Lynn, J., dissenting); United States v. Hughes, 640
F.3d 428, 435-36 (1st Cir. 2011). On balance, this factor weighs against a
finding of custody.

The State also cites, as a factor weighing against a finding of custody,
that E.G. was not questioned for an extended period of time. Although the trial
court made no finding as to the length of either E.G.’s detention or questioning,
the record evidence concerning the limited number of questions asked suggests
that the questioning was not protracted. While, in general, this factor weighs
against a finding of custody, the length of questioning can be a relatively
“undeterminative factor in the analysis of custody.” Griffin, 922 F.2d at 1348;
see also State v. Goupil, 154 N.H. 208, 226 (2006) (finding no custody when
interview lasted less than fifteen minutes); State v. Johnson, 140 N.H. 576, 578
(1995) (finding no custody, in part, when questioning lasted approximately ten
minutes). “While Miranda was most obviously concerned with the ‘marathon’
routine of questioning a suspect, custody has been found in relatively brief
interrogations where the questioning is of a sort where the detainee is aware
that questioning will continue until he provides his interrogators the answers
they seek.” Griffin, 922 F.2d at 1348 (quotation omitted). On balance, we
conclude that here the brevity of the encounter weighs against a finding of
custody.

The State also contends that “E.G. was not overwhelmed by the presence
of multiple officers” and “the presence of other non-law enforcement
individuals” supported a finding that E.G. was not in custody. The State
additionally notes that E.G. was questioned with “the authorization and
presence of [his] mother.”

The number of officers present is a relevant factor in a custody
determination — when multiple officers isolate and question a defendant, it is
more likely that the defendant is in custody. See Jennings, 155 N.H. at 773
(reasoning that “[t]he fact that three officers and a prosecutor went to meet the
defendant certainly bolsters the trial court’s custody determination).
Conversely, the presence of friends or family has been considered a factor
weighing against a finding of custody. See In re D.L.H., Jr., 32 N.E.3d at 1088.
The factor apparently originates from Miranda’s characterization of a “custodial
interrogation as one where a suspect may be deprived of the moral support of
family and friends, contrasting it with his home where ‘his family and other
friends are nearby, their presence lending moral support.’” Cummings v. State,

12
341 A.2d 294, 298 (Md. Ct. Spec. App. 1975) (quoting Miranda, 384 U.S. at
450).

Here, E.G. was questioned by only one officer, Garcia. Although another
officer, Mottram, was present at the D. residence, he only told E.G. and R.G.
not to leave and then to go upstairs — he did not escort them into the house,
and he was not in the bedroom when Garcia questioned the boys. During
Garcia’s questioning, E.G.’s brother and friend were present the entire time,
and his mother was present at least part of the time. This is not a situation,
like Jennings, where multiple officers isolated and questioned a defendant. See
Jennings, 155 N.H. at 773. Only one officer questioned E.G., and E.G. was not
deprived of the moral support of family and friends. Accordingly, these
circumstances weigh in favor of a finding that E.G. was not in custody.

Having considered the parties’ arguments, we now review the ultimate
determination of custody de novo. Ford, 144 N.H. at 63. Considering the
totality of the circumstances of the encounter, we conclude that a reasonable
juvenile in E.G.’s position would not have believed himself to be in custody,
and therefore, that E.G. was not in custody for Miranda purposes when he
made the incriminating statements to Garcia. See McKenna, 166 N.H. at 677.

The police told E.G., a juvenile, to go to the familiar location of his
friend’s bedroom, where a single officer briefly questioned him in the presence
of his friend, brother, and, for at least part of the time, his mother. Although
Garcia did not tell E.G. that he was free to terminate the questioning, neither
did Garcia restrain E.G. or tell him that he was under arrest. This type of
brief, on-scene detention and investigatory questioning does not amount to
custody. Accordingly, based upon the totality of the circumstances, we
conclude that the State established, beyond a reasonable doubt, that it did not
violate E.G.’s Miranda rights, under the State Constitution, on the asserted
ground that E.G. was in custody.

The Federal Constitution offers the defendant no greater protection
than does the State Constitution with regard to the defendant’s rights under
Miranda. See Turmel, 150 N.H. at 385; Terry, 392 U.S. at 20-29. Therefore,
we reach the same result under the Federal Constitution.

Affirmed.

HICKS, BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.

13