Members of the Colorado Supreme Court appeared skeptical last week that a road rage suspect was “in custody” at the time an Aurora police officer interrogated him, as the state’s second-highest court believed was the case.

Under the U.S. Supreme Court’s landmark decision in Miranda v. Arizona, police must inform a suspect of their rights to silence and to consult with an attorney prior to a custodial interrogation. “Custody” does not depend on whether the suspect is free to leave, but that their freedom is restricted to a similar degree as a formal arrest.

By 2-1, the state’s Court of Appeals concluded Terrence Kenneth Eugene was in custody when Officer Christopher Thivierge interrogated Eugene outside his apartment building using accusatory language and untrue claims that video evidence existed of Eugene’s alleged crime.

“Armed, uniformed officers — three of them — are coming to Mr. Eugene’s house, pulling him out, isolating him from his wife and kids, talking to him for 30 minutes about this very serious assault, and clearly communicating they think he’s the guilty party and he’s gonna be the one charged,” public defender Emily Hessler told the state Supreme Court during oral arguments on June 17. “That all gets way over the line of ‘free to leave.'”

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However, multiple justices were sympathetic to the prosecution’s argument that the Court of Appeals wrongly found a Miranda warning was necessary when certain hallmarks of a coercive interrogation — like physical restraint or a formal arrest — were absent.

“Sure, this was aggressive,” said Justice Richard L. Gabriel. “The police may well have come with a suspicion that this is the guy. Why does that make it custody when they’re putting it to him?”

Police arrived at Eugene’s apartment building to talk to him about a road rage encounter from March 2018. Although it was unclear whether Eugene or the other motorist initiated the confrontation, Eugene fled the scene after a fight and the other driver called authorities.

Thivierge questioned Eugene within a 27-minute window. Near the end, Eugene admitted to hitting the other driver, but denied being the instigator. An Arapahoe County jury convicted him of assault and he received eight years in prison.

Eugene attempted to have his incriminating statements excluded from trial, arguing he was interrogated in custody and, consequently, needed a Miranda warning. A trial judge disagreed with Eugene, but a three-judge panel of the Court of Appeals reversed Eugene’s convictions.

The panel’s majority saw Eugene’s interrogation in three phases. First, Thivierge questioned Eugene outside the building. Second, Thivierge left Eugene alone with other officers while he spoke to Eugene’s wife inside. Finally, Thivierge reengaged Eugene outside, which is when Eugene admitted to hitting the victim.

Judge Neeti V. Pawar, writing for the majority, believed that during the final portion of the interrogation, Eugene was effectively in custody and required a Miranda warning. She cited the factors that illustrated an arrest-like atmosphere:

• Eugene was separated from his wife and Thivierge denied his request to use the bathroom

• Thivierge used an accusatory tone, asking Eugene, “Why do you keep lying?” and “Do you see how this looks right now?”

• Thivierge falsely claimed there was video footage of Eugene assaulting the victim

• An officer was blocking the doorway to Eugene’s building

“At this point, a reasonable person in Eugene’s position would feel that his freedom of action was curtailed to a degree associated with a formal arrest,” Pawar concluded.

Judge Steve Bernard disagreed. He noted the officers did not point their weapons, they did not handcuff Eugene, they questioned him at his home and they never explicitly told Eugene he was prevented from leaving. Bernard acknowledged Eugene’s interrogation was neither a formal arrest nor a consensual interaction, but “for me, this case is closer to the not-in-custody end of the spectrum than the in-custody end.”

The prosecution appealed to the Supreme Court, urging it to side with Bernard’s dissent.

“I’m not sure I found a case that was right outside the defendant’s front door where there was custody found,” said Senior Assistant Attorney General Gabriel P. Olivares. He added that “nothing was preventing” Eugene from simply walking away from Thivierge during the interrogation.

“When you read the Court of Appeals’ opinion, though, they put together a number of factors,” said Justice Melissa Hart. “It’s true when you pick apart each one, each one doesn’t seem that serious. But what about that totality?”

Hessler, representing Eugene, argued Thivierge was wearing Eugene down with his questioning, which was the U.S. Supreme Court’s concern in the Miranda case itself.

“This coercive environment where the tone is, ‘We know you did this. We need you to confess,'” she said. “‘We have you on camera. We know you knifed the dude. We saw you drive away. Why are you lying?’ That is coercive.”

“Listening to you, the thing that sort of keeps on floating through my head is that it sounds like ‘you’re not free to leave’,” responded Justice Maria E. Berkenkotter. “That doesn’t get us to custody.”

The case is People v. Eugene.