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State v. Herting1/26/2000
rm Steve's story so she could be arrested.
[ ] Herting did not testify at the hearing. Nevertheless, the trial court, in determining Herting's perception was that she was not free to leave her home, noted "it is clear that when [Nordell] first arrived there, [Herting] knew she was going to be going with the deputy." The trial court based this determination on Herting's statement to Nordell when he arrived at her home that she was getting her shoes as she was going with him. Herting's subjective thoughts are not a proper basis for the determination of whether she was in custody. Thompson, 1997 SD 15, , 560 NW2d at 540. Again, "the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation." Gesinger, 1997 SD 6, , 559 NW2d at 552. We believe a reasonable person in Herting's situation would have understood Nordell was simply trying to get her explanation of events before determining if an arrest should be made and if so who should be arrested. Moreover, Herting was no stranger to the law. She had two prior arrests on her record; one for burglary and the other for driving under the influence .
[ ] There is no indication Herting felt intimidated when Nordell arrived at her residence. The record contains no proof Nordell used "strong arm tactics or deceptive strategems." See United States v. Griffin, 922 F2d 1343, 1351 (8th Cir 1990) (noting that a strong presumption of impropriety attaches to any circumstances where the court detects the use of coercive or deceptive interrogation techniques to obtain confessions). Herting apparently recognized Nordell from Cub Scouts. Herting stated to Nordell when he first arrived at the residence, " t's the Cub Scout guy." Moreover, Nordell's conversation with Herting took place at her own home. "' courts are much less likely to find the circumstances custodial when the interrogation occurs in familiar or at least neutral surroundings', such as the suspect's home." United States v. Erving L., 147 F3d 1240, 1247 (10th Cir 1998) (quoting United States v. Ritchie, 35 F3d 1477, 1485 (10th Cir 1994)). The record indicates Nordell was well mannered and courteous and that he did not adopt a threatening posture or make a show of physical force.
[ ] We find Herting was not subjected to a custodial interrogation under the circumstances and facts presented. We reverse the order suppressing Herting's statement to Nordell.
[ ] MILLER, Chief Justice, and SABERS, AMUNDSON and KONENKAMP, Justices, concur.
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