CO Supreme Court Update
The chilly, Rocky Mountain spring has arrived with a bang, at least of the constitutional-right-deprivation kind, as the Colorado Supreme Court issued a mind-boggling Miranda opinion. Since 1966, the Miranda rule – commonly known as “reading me my rights” – has been in place to safeguard people from incriminating themselves. Miranda notes that if a person is in custody, any statements that result from police interrogation cannot be used against the person if there was not a proper waiver of rights first. Most notably, these are your right not to speak, or self-incriminate, and your right to a lawyer. In order to properly waive these rights, a person must first understand that they have them and what they are. Herein comes the Miranda advisement. The threshold question is whether a person is in custody and this determination, absent a formal arrest, has long been the subject of judicial determination: what would make a reasonable person believe he or she is in custody, or not free to leave?
The new Colorado opinion, People v. Willoughby, 2023 CO 10 (March 6, 2023), has the Justices seeing body camera footage of police officers telling Mr. Willoughby that he was going to put under arrest and that they were, in fact, at his house to arrest him and nevertheless deciding that Mr. Willoughby was not in custody. Because he was not in custody, a Miranda advisement was not necessary and his statements to police in response to their interrogation should not have been suppressed. What this means is that the statements Mr. Willoughby made in response to police interrogation, which were incriminating, could be used against him in his trial despite the fact that he was never read his rights.
This is a concerning opinion, as it raises the question: if someone being told he is under arrest and that officers are at his house solely to arrest him does not indicate to someone they are in custody and not free to leave, what does? At what point is a Miranda advisement truly necessary, then?
With this opinion, it is hard to imagine a court in Colorado ever finding that your rights were violated unless you are already in the back of the police car or in the jail cell being questioned. It sets up a huge incentive for police to essentially do all but put a person in handcuffs at their house or in a public place and question them right then and there, knowing that this will be permissible. The moral of this story is to always turn down an invitation to answer questions and promptly ask for a lawyer.
