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Guerrero v. State7/28/1999
felt free to break off the interrogation and, depending on the location, either leave or ask the police to leave?"
In Guerrero's case, Judge Weeks found that Guerrero was not in custody when he was first contacted by Weske:
"I don't believe that Mr. Guerrero was in custody until the time that he was arrested. It's an objective standard and a reasonable person in the same circumstances would look at it. Mr. Guerrero is an intelligent man, and it was at his place. The officer was not in any way doing those things that we associate with custody at the time. I think that an objective person would've believed that they had the right to leave."
The record shows that when Weske returned to the residence shared by Katz and Guerrero, Guerrero came out of the house and told him that he had already contacted his probation officer, that they were working everything out, and, ultimately, that he had been drinking and driving. This contact occurred on the front porch of Guerrero's house. Nothing in this interaction would cause a reasonable person to believe that he was not free to break off the interrogation and either leave or ask the police to leave. Nor is there anything in the record that Weske did or said to cause Guerrero to believe that he could not break off the conversation by going back into his house, or by asking Weske to leave.
Guerrero, relying in part on Moss v. State, asserts that it is unreasonable to think that he, a person on probation, would feel free to leave when contacted by the police. Moss, however, is readily distinguishable. In Moss, ten police officers, dressed in raid gear, with weapons drawn, forcibly entered Moss's home to execute a search warrant for drugs. Moss and some friends were ordered to sit on a couch, and an officer was stationed to watch them. The police were in Moss's home for approximately two and a half hours, and during the search, extensively interviewed Moss alone in a room. The police either found, or were directed to, a plate with cocaine on it; police also found evidence of drug transactions. We thought Moss was a close case, in part because the interview took place in Moss's home. We found, however, that considering all the circumstances, the interview with Moss (during which the police discussed with Moss the revocation of his probation) was custodial, and required Miranda warnings.
Unlike Moss, Guerrero met and spoke with a single officer on Guerrero's front porch, and the interview lasted only a few minutes. The record supports Judge Weeks's findings that Guerrero was not in custody until he was actually arrested. Accordingly, we find no error.
Conclusion
We AFFIRM the conviction.
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