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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State v. Smith (01/11/2002) sp-5523

State v. Smith (01/11/2002) sp-5523

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 


STATE OF ALASKA,              )
                              )    Supreme Court No. S-9546
             Petitioner,      )
                              )    Superior Court No.
     v.                       )    3KN-S94-1024 CR
                              )
RUPLE MARX SMITH,             )    O P I N I O N
                              )
             Respondent.      )    [No. 5523 - January 11, 2002]
______________________________)



          Petition for Hearing from the Court of Appeals
of the State of Alaska, on Appeal from the Superior Court, Third
Judicial District, Kenai,
                   Charles K. Cranston, Judge.


          Appearances: Eric A. Johnson, Assistant
Attorney General, Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Petitioner.  Michael D. Dieni, Assistant
Public Defender, Anchorage, and Barbara K. Brink, Public Defender,
Anchorage, for Respondent.


          Before:   Fabe, Chief Justice, Matthews,
          Eastaugh, and Carpeneti, Justices. [Bryner,
Justice, not participating.] 


          CARPENETI, Justice.
          MATTHEWS, Justice, dissenting.

I.   INTRODUCTION
          During the investigation of a forcible rape, the police
published an artist's sketch of the suspect.  Ruple Marx Smith
called the police, gave his name, and said that he looked like the
police sketch of the suspect but was innocent.  An officer visited
Smith the next day and, during the course of an interview, Smith
confessed.  Contending that the interrogation was custodial, Smith
moved to suppress his confession because the police failed to
inform him of his Miranda [Fn. 1] rights.  The trial court denied
his motion, and a jury convicted him.  The court of appeals
reversed, concluding that Smith was in custody.  Our independent
review of the record leads us to conclude that a reasonable person
in Smith's position would have felt free to break off the interview
and leave.  Accordingly, we reverse the decision of the court of
appeals and reinstate Smith's conviction.
II.  FACTS AND PROCEEDINGS
          On July 26, 1994 K.S. was raped by an unknown man.  At
the crime scene, the police found shoe prints and bicycle tire
tracks near the spot K.S. had been attacked.  The police determined
that the bicycle "had different tires on the front and rear, both
being very distinctive." Both were narrow street tires, but the
tread on the front tire was wider and deeper than the rear tire.
          K.S. was able to give a detailed description of her
attacker, and a police artist prepared a composite sketch.  K.S.
also noticed that the man had been riding a blue ten-speed bike. 
K.S. ultimately picked Ruple Marx Smith out of two six-photo
lineups. [Fn. 2] 
          On July 28 the police published the composite sketch in
a local newspaper.  Around mid-morning, Smith called the police. 
He identified himself, indicated that two friends had told him that
the sketch in the paper looked like him, and asked for a
description of the suspect.  Smith denied responsibility for the
crime and claimed to have an alibi.  The police officer taking the
call thought it was suspicious and reported it to his supervisor. 
          The next day postal carrier Mike Wiles told Trooper
Robert Clark that he thought a person resembling the sketch lived
at the home of Larry and Margaret Dean.  Trooper Clark visited the
Dean residence and met Smith, who Clark thought looked like the
sketch.  Smith asked Clark if Clark thought that he looked like the
sketch.  Hoping not to alert him to what he was doing, Trooper
Clark said no.  Trooper Clark was also suspicious about Smith's
"over-friendly"manner. 
          Smith owned a blue ten-speed bicycle.  Trooper Clark
examined the tires and noticed the front and back tire treads
differed from each other. 
          Trooper Clark reported his findings to Sergeant Robert
Barnes.  Later that same day, Sergeant Barnes and Trooper Clark
went back to Smith's residence in separate patrol cars.  Both were
in uniform and armed.  Barnes asked to speak to Smith about the
incidents of July 26.  Smith was friendly and, as found by the
trial court, "more than willing"to talk to Barnes.  Barnes told
Smith it was easier to talk in his patrol car, and Smith agreed. 
The day was rather hot, and the air conditioning in Barnes's patrol
car was on.  Smith entered the front passenger side of the patrol
car; Barnes sat next to him on the driver's side.  The doors were
not locked. 
          Barnes's tape recording of the interview began at 1:49
p.m.  Barnes first told Smith that he was not under arrest and was
free to leave.  Smith indicated that he understood. 
          Barnes began the questioning by asking why Smith had
called the police the day before.  Smith initially claimed that he
was with friends the morning of K.S.'s attack.  Barnes's
questioning became more accusatory.  When Barnes first confronted
Smith with the evidence that the bicycle tire tracks at the crime
scene matched his bicycle tires and that the victim identified him
from a photo lineup, Smith denied any connection.  After Smith
denied Barnes's accusation a second time, Smith's friend, Dave,
walked up outside the car, and Smith called loudly to greet him. 
Barnes mentioned the evidence against Smith a third time, adding
comments like "tell me the truth,""and I'm not gonna arrest you,"
and "it's kinda obvious that you were involved." Smith became less
responsive.  After Barnes repeated the allegations a fourth time,
Smith made incriminating responses. 
          After this point of the interview, Smith apparently asked
for an attorney. [Fn. 3]  Barnes said that he would not arrest
Smith.  Smith left the patrol car and talked to his friends, Larry
Dean and Dave Smith, who were standing nearby in the driveway.  The
entire interview in the police car lasted thirty minutes. 
          Barnes stayed on the scene until around 3:00 p.m.  He
taped an additional short exchange between himself and Smith in
which Smith offered to get the clothes that he wore on the day of
the crime.  Smith indicated that he was very tired and wanted to
get back to bed as soon as he could. [Fn. 4] 
          Trooper Clark remained on the premises with Smith.  He
did not restrain or control Smith; Smith went into both his
apartment and the Deans's house.  Barnes returned less than two
hours later and arrested Smith. 
          Smith filed a motion to suppress his statements made in
the interview, alleging that his Fifth Amendment rights were
violated by Barnes's failure to give him Miranda warnings before
his custodial interrogation.  Superior Court Judge Charles K.
Cranston denied Smith's motion and issued findings of fact to
support his ruling.  At trial, a jury convicted Smith of kidnaping,
sexual assault, and sexual abuse of a minor. 
          Smith appealed.  A divided court of appeals [Fn. 5] found
that Smith had been in Miranda custody from the time that Sergeant
Barnes told Smith, "And what I need to do is, is, have you tell me
the truth.  And I'm not gonna arrest you." The court of appeals
remanded for the trial court to determine whether the introduction
of Smith's confession was harmless error.  On remand, the trial
court found that the error was not harmless.  Accordingly, the
court of appeals reversed Smith's convictions.  The state appeals
on the sole issue of whether Smith was in Miranda custody during
his questioning in Sergeant Barnes's patrol car.
III. STANDARD OF REVIEW
          In Thompson v. Keohane, the United States Supreme Court
held that whether the facts as determined by the trial court lead
to the conclusion that the defendant is in custody for Miranda
purposes "presents a mixed question of law and fact qualifying for
independent review."[Fn. 6]  While the Supreme Court's decision
was made in the context of habeas corpus review, its rationale is
applicable here.  The Court reasoned that policies of providing
guidance on legal principles, unifying precedent, and stabilizing
the law supported de novo review. [Fn. 7]  The United States
Supreme Court adopted the same approach in Ornelas v. United
States, holding that de novo was the proper standard of review for
a determination whether the facts found by the trial court
constitute probable cause. [Fn. 8]  We  previously found this
reasoning persuasive in ruling that de novo review was proper for
a determination of probable cause in a child- in-need-of-aid case.
[Fn. 9]  In this parallel situation, we likewise adopt Thompson's
rationale and apply de novo review to the ultimate Miranda custody
determination on direct appeal.
          We accept the trial court's factual findings except when
clearly erroneous. [Fn. 10]  In the absence of findings as to
disputed factual issues, we view the evidence in the light most
favorable to the party prevailing at the trial level -- here, the
state. [Fn. 11] 
IV.  DISCUSSION
          The state argues on appeal that the court of appeals
erred in two ways: (1) by failing to view evidence in the light
most favorable to the prevailing party in the absence of findings
as to disputed issues, and (2) by determining that Smith was in
custody for Miranda purposes.
     A.   The Court of Appeals Correctly Viewed Evidence in the
Light Most Favorable to the Prevailing Party in the Absence of
Findings as to Disputed Factual Issues.
          The state contends that the court of appeals erred by
failing to view evidence in the light most favorable to the
prevailing party "in the absence of findings as to disputed
issues." Smith notes that the state misquoted the standard of
review -- the appellate court must view evidence most favorable to
the prevailing party in the absence of "findings as to disputed
factual issues."
          Possibly because of the quotation error, the state
interprets appellate deference to the trial court too broadly.  The
state specifically argues that the court of appeals should have
adopted an interpretation of what Sergeant Barnes said that was
most favorable to the state. 
          The state fails to distinguish between the fact itself
and the application of the law to the fact.  In the absence of
express findings, the appellate court must resolve disputed factual
issues in favor of the prevailing party, but it is under no such
requirement when applying the law to the facts.  For example, what
Barnes actually said in the interview is a fact.  Although the
superior court made no express finding, an appellate court should
accept the transcript of the interview as an accurate record of
what was actually said, unless clearly erroneous.  How a reasonable
person would interpret a statement in that transcript, however, is
a mixed question of law and fact -- an application of the law to
the fact of what was said. [Fn. 12]  It is not simply a disputed
fact that must be construed in the state's favor.  Thus, the court
of appeals correctly applied its independent judgment to determine
how a reasonable person would interpret Sergeant Barnes's
statement.
     B.   The Court of Appeals Erred in Determining that Smith Was
in Custody for Miranda Purposes.

          [W]ithout proper safeguards the process of in
custody interrogation of persons suspected or accused of crime
contains inherently compelling pressures which work to undermine
the individual's will to resist and to compel him to speak where he
would not otherwise do so freely. In order to combat these
pressures and to permit a full opportunity to exercise the
privilege against self-incrimination, the accused must be
adequately and effectively apprised of his rights and the exercise
of those rights must be fully honored.[ [Fn. 13]]
          The Court defined "custodial interrogation"as
"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."[Fn. 14]  Two discrete inquiries
are essential to the determination of custody: (1) the
circumstances surrounding the interrogation; and (2) given the
totality of those circumstances, whether a reasonable person would
have felt he or she was not at liberty to terminate the
interrogation and leave. [Fn. 15]  In the first step, the court
generally defers to the factual findings of the trial court.  Once
the facts are reconstructed, the court must apply an objective test
to resolve "the ultimate inquiry": whether there was a "'formal
arrest or restraint on freedom of movement' of the degree
associated with a formal arrest."[Fn. 16]  
          In the present case, the superior court's factual
findings are not in dispute.  Thus, the sole inquiry before us is
whether, in the totality of the circumstances, Smith was in Miranda
custody.
          To determine whether "a reasonable person would feel he
was not free to leave and break off police questioning,"we have
noted that facts pertaining to events before the interrogation,
facts intrinsic to the interrogation, and facts about events after
the interrogation are relevant. [Fn. 17]  Specific facts include:
          1.   Preinterrogation events, especially how
the defendant got to the place of questioning -- whether he came
completely on his own, in response to a police request, or escorted
by police officers;
          2.   The circumstances of the interrogation,
including:
                    when and where it occurred
                    how long it lasted
                    how many police were present
                    what the officers and the defendant
said and did
                    the presence of actual physical
restraint on the defendant or things equivalent to actual restraint
such as drawn weapons or a guard stationed at the door
                    whether the defendant was being
questioned as a suspect or as a witness;
          3.   Postinterrogation events, especially         what
happened after the interrogation -- whether the defendant left
freely, was detained, or was arrested. [Fn. 18]
No single factor is dispositive; we consider the totality of the
circumstances in each case. [Fn. 19]  "The custody determination
must be made on a case-by-case basis."[Fn. 20]
          1.   Preinterrogation events
          The state argues that Smith initiated contact with the
police, attempted to mislead them with a fabricated alibi, and
prior to the interview remained eager to discuss the matter.  Smith
responds that he did not contact the police on the day of the
questioning and did not intend to mislead the police with an alibi. 
          The court of appeals has ruled that a suspect's
initiation of contact with police weighed against the conclusion of
custody. [Fn. 21]  Smith appears to argue that because his initial
telephone call to the police is unlike the facts of existing case
law where a suspect's participation indicated non-custodial
interrogation, his initial telephone call is insignificant to the
determination of Miranda custody.
          The facts here are different from the existing precedent. 
However, while the interview may have been less custodial if the
police had scheduled it in advance, the fact remains that Smith
contacted the police first.  While he may not have initiated
contact on the day he was questioned, Smith gives no convincing
reason why the police's next-day response should erase the import
of his initial action.  In addition, during the call, Smith
identified himself to police, and the police asked Smith for his
address and telephone number.  Under these circumstances, a
reasonable person would not have been surprised when the police
later visited him to follow up.
          As a factual matter, Smith denies the state's allegation
that he attempted to mislead police.  He notes that the officer who
took Smith's call did not state in his own words that Smith had
offered an alibi.  The only testimony supporting the allegation
that Smith attempted to mislead the police with an alibi came on
cross-examination by the defendant's attorney, where the trooper
answered "yes"to a compound question asking whether Smith had said
"he didn't do it,""wanted to clear it up,"and "could tell
[police] where he was all day."
          What Smith actually said to the police in his initial
telephone call is the sort of disputed fact, in the absence of an
express finding, that an appellate court should resolve in favor of
the prevailing party. [Fn. 22]  The trial court made no express
finding of the content of Smith's call to police.  For the purposes
of this review, then, Smith did offer his alibi, which may be
construed as an attempt to mislead police.
          Courts generally do not suppress un-Mirandized, self-
incriminating statements made in attempts to mislead police. [Fn.
23]  The reasoning is that the suspect had "considered the risk of
self-incrimination and deemed it to be less important than the
possibility of clearing himself."[Fn. 24]  In Hunter v. State, the
defendant submitted to a lie detector test, hoping to beat the test
and end suspicion. [Fn. 25]  We noted that the attempt to mislead
police supported the conclusion that his interrogation was non-
custodial. [Fn. 26]
          Smith contends that Hunter should be distinguished on its
facts.  While the facts of Hunter differ, the general rule and its
supporting rationale apply equally.  Although not as egregiously as
Hunter, Smith did attempt to mislead police. 
          Finally, it is undisputed that just prior to the
interview, "Smith was friendly and was more than willing to talk to
Barnes." When Barnes asked to speak to Smith and suggested that it
was easier to talk in the patrol car, Smith agreed.  Smith walked
to the patrol car and entered it voluntarily.  
          Smith's initial call to police, his attempt to mislead
police, and his voluntary agreement to questioning in the police
car weigh against a conclusion of custody.
          2.   Circumstances intrinsic to the interrogation
               a.   When and where it occurred
          The state argues that the location of the interview in
Sergeant Barnes's patrol car "is not dispositive, or even
particularly interesting." Smith responds that the police car was
a police-dominated environment. 
          There are literally dozens of cases where a court was
asked to determine whether a suspect was in Miranda custody when
the facts included questioning in a police car. [Fn. 27]  The most
that can be determined from these cases is that an interview in a
police car is not determinative of Miranda custody. [Fn. 28]
          While questioning in a police car is more custodial than
in one's home, it is generally less custodial than questioning at
the police station.  Courts have noted that the custodial
atmosphere is further diluted when questioning in a police car is
otherwise objectively reasonable.  For example in Hintz v. State,
we noted that it was reasonable to have the suspect sit in the
front seat of the police car when the weather was about ten degrees
below zero. [Fn. 29]  Recently in Blank v. State, the court of
appeals affirmed the trial court's conclusion that there was no
Miranda custody in part because the police car was "an alternative
private location."[Fn. 30]  In Blank, the police officer told the
suspect that the interview was conducted in the police car only for
the sake of convenience and expressed concerns about talking in
front of the suspect's children. [Fn. 31]
          In the instant case, both rationales exist.  The trial
court found that the day was rather hot and that the police car's
air conditioning was on.  In addition, holding the interview in the
police car is justified by the need for privacy.  As Judge
Mannheimer noted in dissent, a reasonable person "would have
perceived the patrol car [in the person's driveway] as a suitable
place for a private conversation"about the rape of a minor.  Plus,
the eventual presence of Larry Dean and Dave Smith validates the
concern for privacy. 
          Smith argues that the police could have questioned him in
the equally private confines of his apartment.  This is true. 
Taking into account these competing considerations, questioning in
the police car favors a conclusion of custody but only minimally.
          Concerning when the interview occurred, Smith argues that
the time of the interview was coercive because he had worked a
twelve-hour graveyard shift the night before and was very tired. 
However, the timing of the interview is far more determinative when
the interview begins at an unreasonable time.  This is not the 4
a.m. interrogation found to be custodial in Orozco v. Texas. [Fn.
32]  The interview started at 1:49 p.m.  Because we consider
whether a reasonable person would think he was free to leave, the
reasonable time of day of the interview favors a conclusion of no
custody.
               b.   How long it lasted
          Smith candidly admits that "[t]he relevant part of the
interview was relatively short, 30 minutes long." This fact favors
a conclusion of no custody. [Fn. 33]
               c.   How many police present
          The parties do not dispute that two officers were present
at Smith's apartment.  Only Sergeant Barnes, however, conducted the
interview in the patrol car.  Trooper Clark was standing outside
the car in the shade, out of direct view.  Thus, this fact favors
a conclusion of no custody.
               d.   What Sergeant Barnes and Smith said and did  
          The state and Smith raise numerous points concerning what 
Sergeant Barnes and Smith said and did during the interview: the
overall tone of the interview, Barnes's initial assurances that
Smith was not under arrest and was free to leave, the meaning of
the actual words used by Barnes, Smith's greeting of his friend,
Smith's request for an attorney, and Smith's statement that he
wanted to get back to bed.  Both sides interpret each point in
their favor.
          The state argues that the questioning started casually
and that Sergeant Barnes's tone was calm and low-key throughout the
interview.  Smith admits that Sergeant Barnes's voice was calm but
argues that "the psychological tone of the interview changed
radically"when the questioning became accusatory.  This is the
point where the court of appeals ordered suppression, after
Sergeant Barnes said, "And what I need to do is, is, have you tell
me the truth.  And I'm not gonna arrest you."
          Smith argues that the psychological tone changed
radically at this point, but it did not.  We have reviewed the tape
recording of the interview.  While Sergeant Barnes did accuse Smith
of the crime and noted the evidence against Smith, this was not the
first time that Barnes had accused Smith; Barnes had done so twice
previously. [Fn. 34]  In addition, Barnes's demeanor remained calm
and his tone of voice was, in the words of Judge Mannheimer, with
which we agree, "sympathetic -- almost apologetic." The overall
tone is noncustodial. [Fn. 35]
          At the inception of the interview, Sergeant Barnes told
Smith that he was not under arrest and was free to leave at any
time.  Smith argues that Sergeant Barnes did not tell Smith that he
could remain silent and did not repeat the warnings as the
questioning became accusatory. 
          Assurances from the police that a person is not under
arrest and is free to leave generally indicate a lack of custody
but are not conclusive. [Fn. 36]  While multiple assurances would
have made this case easier to decide, [Fn. 37] the initial
assurances tended to make a reasonable person believe he was not in
custody.
          The state and Smith interpret Barnes's statements to
Smith differently.  Both agree that Barnes said, "And what I need
to do is, is, have you tell me the truth.  And I'm not gonna arrest
you." The state argues that the last sentence was a reassurance
that Smith was not under arrest.  Smith argues that the connecting
"and"starting the second sentence made the assurance of not being
under arrest conditional on Smith telling the truth.  The state
responds that use of "and"was simply a colloquialism. 
          The statement is somewhat ambiguous.  Ignoring contextual
pauses and word usage, one could infer a conditional offer -- if
Smith told the truth, Barnes would not arrest him. [Fn. 38] 
However, Barnes said "and"instead of "if"; the literal meaning of
Barnes's words was not a conditional offer.  Furthermore, a
reasonable person would interpret Sergeant Barnes's statement in
context.  Barnes used "and"to start his sentences at least twenty-
one times in the short interview.  Also, Barnes paused about two
seconds between the two sentences.  Given this context, we
interpret Barnes's use of "and"as simply colloquial.
          The state notes that Smith called to his friend "Dave"
during the interview while in the police car.  The state argues
that this shows Smith was comfortable and not coerced.  Smith
argues that his friend apparently did not hear him, which
heightened the incommunicado aspects of the interview.  While
Smith's call to his friend might show his relative comfort in the
police interview, his action is equally indicative of a nervous
person trying to change the subject.  Concerning Smith's argument,
Dave's lack of audible response to Smith's salutation does not
indicate the heightened coerciveness of the interview; if anything,
Dave's appearance -- and the fact that Dave appeared to have
remained nearby because he spoke with Smith immediately after the
interview -- diluted any atmosphere of police domination.
          The state and Smith also draw opposite interpretations
from Smith's request to speak to a lawyer.  The state argues that
his request shows he knew he could terminate the interview.  Smith
argues that it shows he felt he was under arrest and needed a
lawyer.  Both contentions are plausible.
          The state also highlights Smith's later statement: "I'd
like to get to bed as soon as I can [because] I'm tired." The
state argues that if Smith thought he was free to go back to bed,
he must have thought he was free to go.  Smith argues that his
statement only indicates his hope that he would be free to go back
to bed.  Although Smith does not note it in his brief, he also said
something that suggested he did not feel free to leave: "Well you
wanna walk over there with me Trooper Clark?" Both of these points
have reasonable interpretations for and against custody.  Thus,
neither would be decisive to a reasonable person. 
          In sum, the tone of the interview, Barnes's assurance
that Smith was free to leave at any time, and the presence of
Smith's friends indicate a non-custodial interview. 
               e.   Presence of actual physical restraint or
equivalents such as drawn gun or guard at door
          The police did not physically restrain Smith during the
interview.  Sergeant Barnes did not seize him and walk him to the
car.  Nor was Smith handcuffed.  The doors of the patrol car were
not locked.  Both Sergeant Barnes and Trooper Clark were in uniform
and armed.  
          Smith argues that he thought he was locked in the police
car.  In addition, Smith may have thought Clark was outside
guarding against his escape.  The defendant's subjective belief of
custody is not controlling, [Fn. 39] but it is a factor in the
totality insofar as it may reflect a reasonable person's
understanding.  The weight of this factor is dependent upon Smith's
credibility.  In the absence of a trial court finding that Smith
actually thought he was locked in the police car, [Fn. 40] we
conclude that this factor indicates custody only slightly.
               f.   Whether Smith was questioned as a suspect or
witness
          Smith notes that he was questioned not only as a suspect,
but as the guilty party.  Barnes put four confrontational questions
to Smith.  "[A] reasonable person would conclude he was in custody
if the interrogation is close and persistent, involving leading
questions and the discounting of the suspect's denials of
involvement."[Fn. 41]  Barnes's accusations make the interview
seem custodial.
          The state counters that accusatory questioning simply
shows that police have focused suspicion on the suspect, and both
the United States Supreme Court and this court have rejected the
"focus of suspicion"test as the test for custody.  It is true that
both courts have rejected the police's subjective focus of
suspicion as the sole factor in determining custody. [Fn. 42] 
However, the police's subjective focus, when made clear to the
suspect in an objective manner like accusatory questioning, is
still a relevant factor. [Fn. 43]  Thus, the fact that Sergeant
Barnes asked multiple accusatory questions does weigh in favor of
a conclusion of custody.
          3.   Post-interview events
          The focus of the post-interview events factor is whether
the suspect was arrested, detained, or left free.  The state argues
that Smith was not arrested immediately.  Smith argues that even if
he was not arrested immediately, at least one, and sometimes two,
police officers stayed with him and that he was arrested about one
and one-half hours after the interview. 
          The post-interview events factor is of limited weight. 
In Hunter, we noted that the post-interview events factor
          cannot by itself be the determinative test for
custody.  The police might be willing to release a suspect after
custodial interrogation, especially if the release permitted them
to introduce statements that might otherwise be excluded for lack
of Miranda warnings.  Also, a court must determine whether the
defendant was in custody when he made the incriminating statements;
it is illogical to rest that judgment primarily on something that
occurs after the defendant has made the statements.[ [Fn. 44]]

          The state argues that the police only need go through the
fiction of releasing the suspect to impart the feeling that the
suspect is free to leave.  Sound public policy contradicts giving
the police incentive to delay arrests just to work a fiction of
non-custodial interrogation.  Thus, this factor's slight weight
favors a conclusion of custody because the police remained with
Smith until he was arrested less than two hours later. 
          4.   The totality of the circumstances
          Having looked at each factor in relative isolation, we
now consider whether, in the totality, the circumstances are "such
that a reasonable person would feel he was not free to leave and
break off police questioning."[Fn. 45]  The totality of the
circumstances indicates a non-custodial interview.  Smith's initial
telephone call to police to give an alibi, his voluntary agreement
to talk in Barnes's patrol car, the mid-afternoon timing of the
interview, its brief thirty minute duration, the questioning by a
single police officer, the tone of the interview, the presence of
Smith's friends, and Barnes's assurance that Smith was free to
leave support the conclusion of non-custodial interrogation.
          On the other hand, Barnes's use of accusatory questioning
strongly indicates custody.  Added to this are the facts that the
interview occurred in a police car, and that Smith was arrested
soon after the interview.  While these facts make the question
closer, we conclude that the interview was not custodial -- a
reasonable person would have felt free to leave.
          Although each case is distinguishable on one or more
facts, other cases can help to flesh out the reasonable person
standard.  Within Alaska jurisprudence, the closest cases are
Tagala v. State, [Fn. 46] State v. Murray, [Fn. 47] and Motta v.
State. [Fn. 48]  
          In Tagala, the court of appeals affirmed the trial
court's determination that Tagala was not in Miranda custody. [Fn.
49]  At least three police officers stopped and frisked Tagala but
did not arrest him.  They asked Tagala to come to the police
station to answer some questions, and he agreed.  Tagala rode in
the front seat of the police car without restraint.  He entered the
police station and interview room himself.  At the start of the
interview, police told Tagala he was not under arrest and was free
to leave.  The interview lasted less than two hours.  After the
interview, police dropped Tagala at a friend's house but kept him
under surveillance.  Police arrested him later that day after a
second interview. [Fn. 50]
          The primary differences between Tagala and the instant
case include: the police did not appear to use accusatory
questioning, Tagala did not call police initially, and the
interview was held at the police station and lasted longer.  The
additional intimidation of the interview at the police station and
the longer duration of the interview offsets the lack of accusatory
questioning.  On the whole, the important facts of Tagala, similar
to the instant case, indicate that Smith, like Tagala, was not in
Miranda custody.
          In Murray, the court of appeals found that Murray was not
in Miranda custody when the interview occurred in the front seat of
a police car in the driveway of his home, Murray entered the car
voluntarily, the police officer told Murray that he would not be
arrested, and the interview lasted about twenty-five minutes. [Fn.
51]  The differences with this case are: the officer did not use
accusatory questioning -- Murray "began speaking immediately upon
sitting down in the car,"the police initiated contact but
scheduled a meeting time, and Murray was not arrested until two
months after the interview. [Fn. 52]  The most significant
difference is accusatory questioning; if Sergeant Barnes had not
confronted Smith with the evidence against him in this case, Murray
would counsel that there was no Miranda custody.
          In Motta, the court of appeals held that Motta's
interrogation initially was non-custodial but ripened into Miranda
custody. [Fn. 53]  Two police officers contacted Motta at his home
and asked him to come to the police station for an interview. 
Motta drove to the police station in his own car.  The police told
him that he was not trapped there, that the door was closed for
privacy, and that they wanted any statement he made to be
voluntary.  The interview started in a non-accusatory manner, but
the two officers later confronted Motta with evidence against him. 
Motta was told to tell the truth. [Fn. 54]  At one point, Motta was
told to "just sit tight, relax"and stay in the room while both
officers left. [Fn. 55]  Later, when Motta asked to go to his car
for his cigarettes, the officers did not allow him to leave the
room and instead went to get the cigarettes for him.  After a
little more than three hours of interrogation, Motta confessed. 
After he confessed, the officers told a surprised Motta that he was
not under arrest and free to leave.  The police kept Motta under
surveillance and arrested him two hours later. [Fn. 56]
          The primary differences between Motta and the instant
case are that the interrogation occurred at the police station and
the police did not allow Motta to leave after the interview.  Also
missing are the additional factors of a second interviewing police
officer and a longer duration.
          Out-of-state precedent similarly fails to provide an
exact factual match.  The closest cases with police car
interrogations are decided both ways. [Fn. 57]
           Our conclusion that Smith's interview was non-custodial
does not conflict with Miranda's basic purposes. [Fn. 58]  In
Miranda, the Warren Court attempted to combat the evils of police
custodial interrogation: physical coercion and violence, police
deceit, suspects' ignorance of their rights, mental coercion,
secrecy, incommunicado pressures, the incorrect belief that silence
will incriminate, and the toll on individual liberty. [Fn. 59]  
The instant interview bears little resemblance to this kind of
interrogation.  The only substantial concern here is the
psychological pressure of Barnes's accusatory questioning, but the
other facts minimize this concern.  The police were not physically
threatening.  Sergeant Barnes's statement of the evidence against
Smith was not deceitful.  Smith was not ignorant of his rights:
Barnes told Smith that he was free to leave at any time, and Smith
eventually ended the interview by asking to speak to a lawyer.  The
tape recording remedied the concerns with secret interrogation. 
The incommunicado aspects of an interview in a police car in a
suspect's driveway with friends present outside is minimal. 
Smith's voluntary, thirty-minute, police car interview was not
coercive, was not custodial, and did not warrant a prophylactic
Miranda warning. 
V.   CONCLUSION
          We conclude in the totality of the circumstances that
Smith's interview was non-custodial.  Accordingly, we REVERSE the
decision of the court of appeals and REINSTATE Smith's conviction.

MATTHEWS, Justice, dissents.
          The question presented is whether a reasonable person in
Smith's position would have believed before he confessed that he
was free to terminate the questioning by Trooper Barnes and either
leave or ask the police to leave. [Fn. 1]  If the answer to this
question is yes then Smith was not in custody and no Miranda
warning was required, but if the answer is no a warning was
required. I agree with the court of appeals that the answer is no. 

          Smith was being questioned about a crime that was not
only serious, but notorious and frightening to the community.  A
fourteen-year-old girl had been dragged off a bike path and raped. 
In the close confines of a patrol car, Trooper Barnes made it clear
that he knew that Smith was the rapist. He described the strong
evidence against Smith.  The victim had identified Smith in a photo
lineup, and bicycle tracks at the scene matched the unique set of
tires on Smith's bicycle.  After hearing this, given the serious
and notorious nature of the crime, I do not believe that a
reasonable person in Smith's position would believe that he would
be allowed to remain at large.  And, as this case illustrates, a
reasonable person would be right in that belief, for Smith was
under continuous and overt police surveillance from the end of the
interview until he was formally arrested two hours later.  
          Trooper Barnes told Smith in sequence, "[I]t's kinda
obvious that you were involved in this.  OK.  And what I need to do
is, is, have you tell me the truth.  And I'm not gonna arrest you."
How would these statements be understood by a reasonable person in
Smith's position?  In the context of Barnes's expressed belief that
Smith was "involved,"the request that Smith tell the truth is
obviously a request for a confession.  What then to make of the
statement that Smith would not be arrested?  The state argues that
Barnes was not telling Smith that if he confessed he would not be
arrested.  Instead, according to the state, Barnes was promising
freedom from arrest no matter what Smith said. [Fn. 2]  
          Accepting this interpretation simply illustrates that the
promise not to arrest was not reasonably believable.  The state
would have us believe that Trooper Barnes meant -- and a reasonable
person would understand him to mean -- that Smith would not be
arrested even if he confessed that he was the rapist the police
sought.  In my opinion, no reasonable person could believe this.
[Fn. 3] 
          A truly knowledgeable person would realize that the
purpose of the assurance of no arrest was to avoid the need to give
a Miranda warning, and that it was untrue.  Less knowledgeable but
reasonable people might not know the purpose of the assurance, but
they would realize that it was probably not true.  A policeman who
had just recited persuasive evidence showing that a suspect was
guilty of a serious crime and who then told the suspect that he 
was obviously guilty would be unlikely to set the suspect free.
          Trooper Barnes quietly, skillfully, and repeatedly
insisted that Smith confess. [Fn. 4]  He said nothing after he laid
out the evidence and declared his belief in Smith's guilt that
would cause a reasonable person to believe that Smith still had
freedom of action.  For these reasons I would affirm the decision
of the court of appeals.



                            FOOTNOTES


Footnote 1:

     Miranda v. Arizona, 384 U.S. 436 (1966).


Footnote 2:

     When shown the first lineup of Department of Motor Vehicle
photographs, K.S. initially indicated that the men pictured looked
too young and clean-looking and that she was not sure.  After a
police officer commented that the picture might show her attacker
after a shave, shower, and haircut, K.S. chose Smith's picture. 
The second lineup included a picture of a different suspect but not
Smith.  K.S. indicated almost immediately that her attacker was not
pictured. 


Footnote 3:

     Barnes testified that he accidentally taped over this part of
the interview. 


Footnote 4:

     Smith later testified that he had worked a twelve-hour
graveyard shift the night before. 


Footnote 5:

     Judge David Mannheimer dissented. 


Footnote 6:

     516 U.S. 99, 112-13 (1995).


Footnote 7:

     See id. at 115.


Footnote 8:

     517 U.S. 690, 697 (1996).


Footnote 9:

     See Matter of J.A., 962 P.2d 173, 175 n.1 (Alaska 1998).


Footnote 10:

     See  Gallmeyer v. State, 640 P.2d 837, 839 (Alaska App. 1982).


Footnote 11:

     See id.


Footnote 12:

     See Thompson, 516 U.S. at 112-13.


Footnote 13:

     Miranda v. Arizona, 384 U.S. 436, 467 (1966).


Footnote 14:

     Id. at 444; see also Stansbury v. California, 511 U.S. 318,
322 (1994) (stating that duty to give Miranda warnings is triggered
"only where there has been such a restriction on a person's freedom
as to render him 'in custody'"(quoting Oregon v. Mathiason, 429
U.S. 492, 495 (1977))).


Footnote 15:

     See Thompson, 516 U.S. at 112.


Footnote 16:

     California v. Beheler, 463 U.S. 1121, 1125 (1983) (quoting
Mathiason, 429 U.S. at 495).


Footnote 17:

     Hunter v. State, 590 P.2d 888, 895 (Alaska 1979). 


Footnote 18:

     See id.


Footnote 19:

     See Carr v. State, 840 P.2d 1000, 1003 (Alaska App. 1992).


Footnote 20:

     Hunter, 590 P.2d at 895.


Footnote 21:

     See Beltz v. State, 895 P.2d 513, 515, 520 (Alaska App. 1995)
(concluding that interview was noncustodial when defendant
initiated the interview by walking into a police station without
prior appointment and asking to "talk to someone about sex abuse");
State v. Murray, 796 P.2d 849, 851 (Alaska App. 1990) (concluding
that interview was noncustodial when police made an appointment to
meet with defendant and defendant, on his own initiative, came out
of his house, sat down in the patrol car, and immediately began
talking about the accusations).


Footnote 22:

     See supra part IV.A.;    Gallmeyer v. State, 640 P.2d 837, 839
(Alaska App. 1982).


Footnote 23:

     See Hunter, 590 P.2d at 899 n.39.  


Footnote 24:

     Id. (quoting Jefferson V. Smith, The Threshold Question in
Applying Miranda: What Constitutes Custodial Interrogation?, 25
S.C. L. Rev. 699, 725 (1974)).


Footnote 25:

     Id. at 899. 


Footnote 26:

     See id. at 899 n.39. 


Footnote 27:

     See J. F. Ghent, Annotation, What Constitutes "Custodial
Interrogation"Within Rule of Miranda v[.] Arizona Requiring That
Suspect Be Informed of His Federal Constitutional Rights Before
Custodial Interrogation, 31 A.L.R.3d 565, 625-29 (1970 & Supp.
2000).


Footnote 28:

     See, e.g., State v. Murray, 796 P.2d 849, 851 (Alaska App.
1990) (reversing trial court determination that interview in police
car was custodial); State v. Preston, 411 A.2d 402, 405 (Me. 1980)
(affirming trial court's determination that interview in police car
was custodial).


Footnote 29:

     627 P.2d 207, 209 (Alaska 1981).


Footnote 30:

     3 P.3d 359, 363 (Alaska App. 2000).


Footnote 31:

     See id. at 362.


Footnote 32:

     394 U.S. 324, 325, 327 (1969).


Footnote 33:

     See State v. Murray, 796 P.2d 849, 850 (Alaska App. 1990)
(concluding no Miranda custody for interview that, among other
things, lasted only twenty-five minutes); State v. Gard, 358 N.W.2d
463, 465-67 (Minn. App. 1984) (thirty minutes). 


Footnote 34:

     The fact that Smith was accusatorially questioned as a suspect
is a separate factor.  See infra part IV.B.1.f.


Footnote 35:

     See Long v. State, 837 P.2d 737, 740 (Alaska App. 1992)
(noting that a factor in finding no Miranda custody was that "the
tone of the interview had been low-key, not heavy-handed"). 


Footnote 36:

     See Long, 837 P.2d at 741 ("Even when a suspect is assured
that he is not under arrest, the circumstances of his contact with
the police may belie this assurance and convince the suspect that
he indeed is in police custody."); Hampel v. State, 706 P.2d 1173,
1178-79 (Alaska App. 1985).


Footnote 37:

     See Thompson v. State, 768 P.2d 127, 131 (Alaska App. 1989)
(dicta noting numerous assurances and concluding no custody).


Footnote 38:

     Even assuming that a reasonable person would interpret
Sergeant Barnes's statements as a conditional offer is problematic. 
Would a reasonable innocent person believe that, if he falsely
confessed to a crime, the police would not arrest him and he would
be free to leave?


Footnote 39:

     See Hunter v. State, 590 P.2d 888, 894-95 (Alaska 1979).


Footnote 40:

     Judge Cranston denied Smith's motion to suppress, which
suggests that Judge Cranston would not have found that Smith
thought he was locked in the police car.


Footnote 41:

     2 Wayne R. LaFave et al., Criminal Procedure sec. 6.6(f), at
540
(2d ed. 1999).


Footnote 42:

     See Berkemer v. McCarty, 468 U.S. 420, 442 (1984); Hunter, 590
P.2d at 895.


Footnote 43:

     See State v. Murray, 796 P.2d 849, 851-52 n.1 (Alaska App.
1990); Hunter, 590 P.2d at 893.


Footnote 44:

     Hunter, 590 P.2d at 895 n.23.


Footnote 45:

     Id. at 895.


Footnote 46:

     812 P.2d 604 (Alaska App. 1991).


Footnote 47:

     796 P.2d 849 (Alaska App. 1990).


Footnote 48:

     911 P.2d 34 (Alaska App. 1996).


Footnote 49:

     See Tagala, 812 P.2d at 609.


Footnote 50:

     See id. at 606-07.


Footnote 51:

     See Murray, 796 P.2d at 850-51.


Footnote 52:

     Id. at 850.


Footnote 53:

     See Motta, 911 P.2d at 39.


Footnote 54:

     See id. at 36-37.


Footnote 55:

     Id.


Footnote 56:

     See id. at 37-38.


Footnote 57:

     Compare State v. Gard, 358 N.W.2d 463, 465-67 (Minn.  App.
1984) (concluding no Miranda custody where officer was not in
uniform, questioned suspect in the front seat of an unlocked
unmarked car outside of suspect's work, told suspect he was not
under arrest and free to leave at any time, talked to suspect for
thirty minutes, allowed suspect to return to work, and arrested
suspect more than a month later), and State v. Travis, 441 P.2d
597, 598-99 (Or. 1968) (concluding no Miranda custody where officer
chose to have interview in his police car, told suspect that he had
a right to an attorney, did not tell suspect he had a right to
remain silent, confronted suspect with victim's identification of
him, allowed the suspect to go free after he promptly confessed,
and arrested suspect the following day), with In re N.E.R., 512
N.E.2d 132, 133-35 (Ill. App. 1987) (concluding that trial court's
determination of no Miranda custody was contrary to the manifest
weight of evidence where suspect was fifteen years old and officer
asked suspect to talk in police car for privacy's sake, talked to
suspect in unmarked car in front of suspect's home, did not recall
touching suspect as he entered the front seat of the car, may have
locked the door but was not certain, used accusatory questioning
for about two hours, never told suspect he was free to leave, and
told suspect he was not under arrest at the end of the interview),
and State v. Preston, 411 A.2d 402, 404-06 (Me. 1980) (concluding
sufficient evidence supported presiding justice's finding of
Miranda custody where police had search warrant for suspect's home,
questioned suspect in a police car near the suspect's home, used no
physical restraint, told suspect that he was free to leave and did
not have to talk, and used accusatory questioning).


Footnote 58:

     See Beckwith v. United States, 425 U.S. 341, 345-47 (1976)
(stating that "an extension of the Miranda requirements [to include
non-custodial interrogation] would cut this Court's holding in that
case completely loose from its own explicitly stated rationale").


Footnote 59:

     See Miranda v. Arizona, 384 U.S. 436, 446-56, 467-68 (1966).



                      FOOTNOTES   (Dissent)


Footnote 1:

     See Long v. State, 837 P.2d 737, 740 (Alaska App. 1992)
("[U]nder the circumstances of the police interaction with the
suspect, would a reasonable person have felt free to break off the
interrogation and, depending on the location, either leave or ask
the police to leave?").


Footnote 2:

     According to the state, "Barnes's remarks could reasonably be
construed as providing unconditional reassurance that Smith would
not be arrested."


Footnote 3:

     I believe the majority opinion agrees with this point.  It
states, "Would a reasonable innocent person believe that, if he
falsely confessed to a crime, the police would not arrest him and
he would be free to leave?" Slip Op. at 19, note 38.  A guilty
person would have even less reason to believe that he could remain
at large if he confessed.  


Footnote 4:

     For example, chronologically: "And what I need to do is, is,
have you tell me the truth.""Well I can't, can't stress to you
Ruple how important it is that ah, you tell us the truth and you
tell us the truth right away." "Right, right from the beginning on
this Ruple." "So I need to have your side of the story Ruple and
and, cause I, I'm sure that, that, some of the things you told me,
aren't exactly what happened."