Members of the Colorado Supreme Court wrestled last month with a question that previously divided the state’s second-highest court: Did Craig law enforcement effectively place a heavily intoxicated woman in custody and interrogate her for the murder of her husband without providing the necessary Miranda warning?

The answer could implicate the breadth of protection afforded to criminal suspects, as defendant Rachel Ann Niemeyer warned the justices about the possibility police will simply say, “You are not under arrest” while continuing to treat a person as if they were.

Before law enforcement interrogates a suspect in custody, they must advise the person of their rights to remain silent and to consult with an attorney, pursuant to the U.S. Supreme Court’s landmark decision in Miranda v. Arizona. “Custody,” does not necessarily mean a formal arrest, but rather a restriction of freedom to the degree associated with an arrest.

In 2022, the Court of Appeals upheld Niemeyer’s convictions by 2-1 after determining her 2.5 hours under police supervision did not amount to custody.

But during oral arguments to the state Supreme Court on June 18, two justices summarized the competing narratives of what Niemeyer experienced shortly after her husband, Michael Adam Freese, received a fatal gunshot wound in a motel room where he and Niemeyer were drinking by themselves. Crucially, Niemeyer repeatedly asked to go see Freese at the hospital, only for police to keep her under their control.

Police “show up to this location and there’s a gunshot wound to his head and she says it was suicide, he did it himself. And she’s upset and she’s intoxicated. So, at this point they don’t know exactly what happened,” said Justice Carlos A. Samour Jr. “So, they take her down to the police station and she can’t drive herself because she’s intoxicated. They want to test her for GSR — gunshot residue. … They can’t just let her go to the hospital until they do that.”

All of that activity leading up to Niemeyer’s interrogation “seems fairly reasonable to me, given what they don’t know and what they’re trying to investigate,” Samour added.

It was not that simple, countered Justice Richard L. Gabriel, because Nieyemer was “held for a couple hours, she asked to leave a dozen times to go to the hospital and they kept saying yeah, later, later. Bags on her hands in a closed room, then interrogated by a detective.”

Niemeyer “asked 12 times to go to the hospital … and she’s being put off and being put off,” he continued. “Wouldn’t that suggest to a reasonable person they’re not going anywhere anytime soon? How many more times does she have to ask?”

Chief Justice Brian D. Boatright cut in to suggest he was uncomfortable with setting the bar for “custody” too much higher than Niemeyer’s actual experience.

“There has to be a totality of the circumstances, at some point, where someone is in custody without being handcuffed,” he observed. “This feels close.”

‘I think I did it’

A Moffat County jury convicted Niemeyer in 2018 of second-degree murder. Police responded to the couple’s motel room around 10 p.m. and found Freese had suffered a gunshot wound to the side of his head, with Niemeyer holding him in her arms. Paramedics transported Freese to the hospital.

“Can I please just go see my husband?” Niemeyer asked.

Officer Will Roland replied that “we’ve got to take care of our stuff first.” Niemeyer would repeatedly ask to be driven to the hospital, but each time Roland demurred.

Roland then told Niemeyer he would transport her to “someplace warm” — the police station. He placed Niemeyer in an interrogation room. Once there, he affixed plastic bags around her hands and fastened them with zip ties to preserve any gunshot residue. Subsequent testing showed no gunshot residue on her hands. Freese was never tested, despite the possibility of suicide.

Around midnight, Detective Norm Rimmer entered the interrogation room and told her she was not under arrest. He then removed the plastic bags from Niemeyer and swabbed her hands.

During her conversation with Rimmer, Niemeyer made several incriminating statements: “I think I shot him.” “I think I did it.” “He said there were no bullets.” “Oh, my god, I shot him.” “I don’t remember giving it back to him.” “I thought he did it. But now that I think about it, I think I did it,” she said.

Rimmer then provided Niemeyer a Miranda warning and she immediately invoked her constitutional right to an attorney. Rimmer placed her under arrest.

On appeal, the Court of Appeals concluded Nieyemer was not effectively in custody to the point where a Miranda warning was necessary. Then-Judge John Daniel Dailey, writing for the majority, determined the police’s “actions and statements would have led a reasonable person to believe that she would be on her way to the hospital to check on her husband as soon as the hand-bagging procedure was completed.”

Then-Judge David J. Richman would have overturned Niemeyer’s convictions. Richman noted police collected evidence from her hands and continuously gave her the “runaround” when she asked to leave — amounting to an arrest-like atmosphere, in his view.

Say one thing, do another?

On appeal to the Supreme Court, the ACLU of Colorado and the National Association of Criminal Defense Lawyers weighed in to support Niemeyer, warning the court should not permit police officers to “narrate their way out” of Miranda warnings by simply telling a suspect she is not under arrest before interrogating her.

“That sort of resonates a little bit with me,” said Justice William W. Hood III at oral arguments.

“You can have an officer saying, ‘You’re not under arrest’ all day long, but if every other objective circumstance indicates that they are,” added Justice Monica M. Márquez, “that can outweigh that circumstance.”

Senior Assistant Attorney General Grant R. Fevurly acknowledged Niemeyer had a “close case,” but he contended Niemeyer had not, in fact, been denied her freedom to leave police supervision. Her questions were “along the lines of, ‘Can we go to the hospital?’ It’s not, ‘I’m leaving. I’m not staying here,'” he said.

“Her husband is shot in the head,” interjected Justice Maria E. Berkenkotter. “She’s asking to go and she needs to articulate it in a particular way using particular words?”

Hood added he was curious about the importance of Niemeyer’s intoxication to the question of whether she was in custody. Public defender Karen Mahlman Gerash responded that Niemeyer’s drunkenness affected how the police dealt with her, but Gerash believed the main problem was the police’s representation that Niemeyer would soon be on her way — when everything they did suggested otherwise.

“They don’t have to effectively gaslight her,” said Gerash.

The case is Niemeyer v. People.