State v. Thomas

GRAEFF, J. This appeal involves the State’s challenge to the ruling of the Circuit Court for Montgomery County suppressing a statement that Konnyack Thomas, appellee, made to the police. The appeal was brought by the State pursuant to Md.Code (2006 Repl.Vol.) § 12-302(c)(3)(i) of the Courts & Judicial Proceedings Article (“C.J.P.”), which requires us to render our decision within 120 days of the filing of the record in this Court. The record was filed on September 6, 2011; therefore, our decision must be rendered by January 4, 2012. Two issues have been presented for our review, 1 which we have rephrased as follows: 1.

Did the circuit court err in granting appellee’s motion to suppress the statement he made to the police on the ground that appellee was in custody when he made the statement and was not given Miranda 2 warnings? 2. Should appellee’s statements be suppressed because they were made in reliance on a promise to help his daughter, rendering the statements involuntary pursuant to Maryland law? For the reasons set forth below, we shall reverse the judgment of the circuit court on the custody issue. We will ⁵⁵¹ not review the claim regarding the voluntariness of the statements based on the record before us.

FACTUAL AND PROCEDURAL BACKGROUND On October 1, 2010, appellee was charged by indictment with one count of sexually abusing a minor, two counts of second degree rape, and six counts of second degree sexual offense. On June 28, 2011, the Circuit Court for Montgomery County held a hearing on appellee’s motion to suppress his statements to the police, which defense counsel explained was “based on the failure to give Miranda and based on there being inducements by the police.” Defense counsel introduced into evidence, as Defense Exhibit 1, a transcript of appellee’s August 31, 2010, statement to the police. Detective Kristie Thorpe, a member of the Montgomery County Police Department, Family Crimes Division, and appellee testified at the hearing. Appellee, a sergeant in the United States Army, testified that a detective contacted him on August 31, 2010, and asked: “[C]an I come down to the station, it has to do with one of my children.” Appellee agreed and drove himself to the police station.

He initially believed that he was going to the station to discuss a problem with his teenage stepson, who recently had run away from home. While driving to the station, however, appellee spoke with his wife on his cell phone. She told him that she and his then 14-year-old daughter, C., had told the police that appellee had sexually abused C. 3 Appellee arrived at the police station approximately one hour after he received the detective’s call. Detective Thorpe and Detective Errol Birch, who both were unarmed and dressed in plain clothes, met appellee in the station lobby.

The officers asked appellee to speak with them and led him to a child interview room. They went through a locked door that requires an access card to open, and once through that door, “the interview rooms are right there.” There was no diseus ⁵⁵² sion, other than small talk or “introductions,” before entering the interview room. Detective Thorpe described the interview room as “a small room,” with “teddy bears along the wall [in] a bookcase ... [a] couch in the center and ... two chairs that are on both sides of the door.” Appellee sat on the couch, and the officers sat on the two chairs, between appellee and the door. Detective Thorpe initially testified that she told appellee that the door was unlocked, and he could leave if he wanted to leave.

After reviewing a transcript of the interview, Detective Thorpe testified that she did not tell appellee that he could leave, but she told him that he was not under arrest and the door was not locked. Appellee appeared to understand everything that she was saying. The interview lasted approximately an hour and a half, and appellee never said that he did not want to speak to the officers or that he wanted to exit the room. Detective Thorpe testified that she did not make any threats or promises “about giving him things or ... something [would] go easier for him if he talked to” her.

When Detective Thorpe began talking with appellee that night, she did not intend to place him under arrest. Her intentions changed “[t]oward the end of the interview when [she] asked [appellee] how was he feeling and how was he coping with things and he made statements indicating he wasn’t doing well and he wasn’t coping well,” at which point she “became concerned about his safety.” Appellee testified that, during the interview, he believed “that I wasn’t leaving that place, that I was there, you know, to be arrested for these accusations.” Appellee’s counsel then referred to a portion of the transcript, which counsel characterized as “the detective said that you should talk to them so they could take care of [C.], that she needed some help.” Counsel then quoted from the transcript where Detective Thorpe said: “Right now we want to get [C.] any type of services she can get that will assist her in getting through this.” Appellee responded in the affirmative when counsel asked: “Do you recall that the detective said that she would ⁵⁵³ speak to the Army regarding your cooperation with them and in getting continued support for the family?” Appellee testified that he relied on “the promises to, that the officers would speak to the Army,” stating: “[Tjhem sitting there saying that my daughter needed assistance, my daughter needs help, I just told them what, what they, I guess they wanted to hear ... in order to help my daughter.” On cross-examination, appellee admitted that the detectives never raised their voices during the interview. The following colloquy then occurred: [Prosecutor]: On the phone with Detective Thomas, she never promised you that if you came in and talked to them things would go easy for you, right? [Appellee]: No. [Prosecutor]: And she never told you if you came in and talked to them, you would never be arrested? [Appellee]: No. [Prosecutor]: And she never told you if you came in and talked to them, then your daughter would get services? [Appellee]: No. [Prosecutor]: Okay. And Detective Thorpe and Detective Birch, they never had any kinds of conversations with you out in the lobby area about any of that, right? [Appellee]: No. The court then asked appellee: “What did you think was going to happen after you went into the interview room?” Appellee responded: “I was assuming that I was going to be arrested for these accusations.” When asked when he began to believe that, appellee responded: “After my conversation with my wife.” The court asked if appellee felt that he “could just get up and walk out.” Appellee responded: “No, I did not, Your Honor.” Defense counsel argued that appellee was in custody during the interview, which required that the police advise him regarding his Miranda rights.

He asserted that a reasonable person would not have felt free to leave under the circumstances, ie., where he had been accused of molesting his ⁵⁵⁴ daughter, and he was placed in a closed room with two detectives, after being led through a locked door which required a key card. The court, referencing the transcript of the interview, asked the State why Miranda warnings were not given “after Page 10,” when appellee admitted to engaging in vaginal intercourse with his daughter. The court stated that, “up to Page 10 it’s good detective work,” but it questioned whether, once appellee admitted he “had sex with a minor,” he was free to leave. The State noted that the police advised appellee that, although he might be arrested “at some point,” he was “not going to go to jail tonight.” 4 It pointed out that appellee was left alone to write a letter to his daughter, and he was permitted to use the restroom by himself while the police were out of the room.

The prosecutor asserted that a review of the videotape would be helpful, as opposed to merely reading the transcript, because the words “do not accurately convey the feeling in the room,” which the prosecutor characterized as “like a confessional,” with appellee “decid[ing] to unburden himself.” ⁵⁵⁵ The court then asked the State to address the parts of the transcript where the detective said they “just want to help [C.].” The State argued that the officer’s statements were “in response to a direct question by the defendant.” The State quoted from the transcript, noting appellee’s concern about “the next step,” and “that [C.] is safe and that she’s taken care of ... financially.” The prosecutor quoted Detective Thorpe’s statement: “Your first question was about your family. Right now we want to get [C.] any type of services that she can have,” and she argued that the statement about services for C. was “in direct response to the defendant’s inquiry about what happens next.” Defense counsel then presented his argument that the statement was involuntary. He argued that appellee’s statements were inadmissible because they were the product of a promise to assist appellee’s daughter. The prosecutor then played the video recording of the interview. 5 The two detectives began speaking with appellee at approximately 7:14 p.m.

The interview began with Detective Thorpe saying: “Sit on the couch. Thank you for coming in. It looks like we caught you coming in from work.” 6 The detectives then asked about appellee’s name, address, telephone numbers, and date of employment. The following then took place: Detective Thorpe: Okay.

Do you have any idea why you’re here today? [Appellee]: I know why I’m here. Detective Thorpe: Okay. Well, again, I want to make sure you understand. This may not look like a police facility, but ⁵⁵⁶ it is a police station.

You’re not under arrest or anything like that, okay? This door is not locked. I’ll leave it open. And if I could reach it, I would open it for you. 7 But the door is unlocked, okay?

So I just want to make sure you understand that. So why are you here? [Appellee]: It has to do with my daughter. 8 Detective Thorpe asked: “Okay. And what about her?” Appellee stated that it was .“kind of hard to talk about.” Detective Thorpe then stated: Okay. You’re correct.

I invited you to come in because of some things, something going on with your daughter. And let me tell you a little bit about what we do and maybe it will help you speaking with us. All we do here all day is talk about some very personal, private things that we normally don’t talk about outside the office here, okay? And you aren’t the first person to come in here and talk to us.

You might not even be the last one here tonight. Okay? Now what I can say is it looks like it’s been weighing on you. You look like you’ve been crying and having a horrible time.

Appellee responded: “I have.” The following then occurred: ⁵⁵⁷ [Detective Thorpe]: That says a lot. Because at least you— you know, you have a kind heart where your conscience is guiding you to do the right thing. I did speak with [C.] And she told me about some things had been going on for quite some time between you and her. You want me to tell you what she told me? [Appellee]: I’ve been, I’ve been touching her.t 9 ] [Detective Thorpe]: When did it start?

Detective Thorpe then asked appellee questions about when the touching started and asked appellee to clarify what he meant by “touching.” Appellee stated that the “incidents” began when he was living in Georgia, stating that he touched his daughter on her “[p]rivate areas,” including her vagina and breasts, both over and under her clothing. Detective Birch stated: “Now I know it’s difficult for you to talk about it, but I’m going to give you all the credit in the world to talk about the hardest thing possible in front of two strangers. What happened after the touching?” 10 Appellee stated: “I know where this is going.” Detective Birch then stated: Let me tell you what our job is, okay, before you—as you’re thinking. Your daughter has come to talk to us about things that happened to her.

Sadly enough, she blames herself for everything and that’s a terrible thing that occurs, all right? She loves you. She cares about you. But she blames herself because she understands what’s going on.

Less important to her, and she expressed it, it is the only way she can get through this is to get reassurance that it wasn’t her ⁵⁵⁸ fault. When she gets into therapy, she has to know it’s not her fault. [Appellee]: I’ve told her that. [Detective Birch]: And you know what? I’m sure you have. But she had the guts and the strength to sit here and tell us things that happened to her that are very difficult.

And I’m asking you to have the same strength and to help us take care of her. Okay? You’re going to have the opportunity down the road, but we just need to hear it from you, what occurred, so we can get her the help she needs. And that’s going to be therapy, okay?

Detective Birch suggested that “it’s easier to remember the last thing that happened ... [t]he last thing that happened was up here in Montgomery County, correct?” Appellee stated that the last incident occurred in June or July of 2010 when he and his daughter were home alone. Detective Thorpe asked him: “And what happened that last time?” Appellee responded: “Sex.” Appellee clarified, in response to Detective Thorpe’s questions, that it was vaginal intercourse. It occurred in his bedroom, and he had locked the door. He did not wear a condom, nor did he ejaculate.

He stated that he had engaged in both fellatio and cunnilingus with C. in Montgomery County on prior occasions. Detective Birch asked: “In the last event, how did you lure her to the room? Did you say, ‘Come into the room’ and she knew what was going on?” Appellee responded: “Yeah.” At this point, the suppression judge paused the recording and stated that he had heard enough to make a decision and did not need to hear the remainder of the interview. The court heard argument from the parties and issued its ruling.

The court stated: I’m probably, other than the deputies, the only one in this courtroom who has any notion of what it’s like to be sitting in an interrogation room interrogating people. And I will just say that I never saw, I never had in all of my experi ⁵⁵⁹ ence, I never had any suspect get up and walk out of the interrogation room or even think that he could. And so the Supreme Court has set forth the standard and it is a reasonable person standard. Does a reasonable person in a police station think that he or she can just get up and walk out?

No one has cited a case where that’s what happened, where a person just got up and walked out. The case wouldn’t be here on that issue. It probably would be here on the issue of what happened when they attempted to do that. Now it’s relevant in this case that the defendant, Mr. Thomas, is a sergeant in the United States Army.

I think it’s a reasonable inference that if the police want to talk to you about your children, and particularly when he finds out that it’s about his daughter, that a sergeant who is a supervisor in the United States Armed Forces does not want police detectives coming on the base to talk to him about sexually abusing his daughter. I think it’s a reasonable inference. So, certainly, he was going to go down to the police station to talk to them, as opposed to having them come to him. Now, he gets to the police station and the detective tells him the following things.

They greet him and they tell him it is a police station. It “doesn’t look like” one, but it’s a police station. They tell him, “You are not under arrest,” and that the door is unlocked. Now what does that mean? ...

If he was free to leave and he could get up and walk out if he wanted to, why didn’t they just say that? Why stop by telling him, after telling him the door is unlocked? The court found that, throughout the interview, the officers were “polite,” “courteous,” and “respectful,” but it stated that, “being interviewed by the police, and particularly in a police ⁵⁶⁰ station,” is inherently coercive. The court recognized, however, that it needed to consider the totality of the circumstances.

The court continued: The Court does not find that there was any intention by the detectives to do anything improper. However, a system of subterfuge has developed in the law enforcement community with respect to interrogation techniques. The defendant was not at the station for a social visit. The detectives wanted to make this prosecution.

They told the defendant he was not under arrest and the door was unlocked. It’s a scary thought to think that in this community a citizen can walk into a police station, confess to a violent crime and then they are free to leave. The State argues that a man who goes in and says that I was, I sexually abused my daughter can just leave. And that flies in the face of reason that you could go in and confess to a murder and just walk out of the station, you’re not under arrest and you’re not, and you’re not in custody.

Now interrogations in police stations are inherently custodial whether they are coercively so or whether it’s to the extent that it’s violative of the requirements of Miranda is what these cases are all about. And that’s why the Court must consider each factual situation on its own legs. I don’t know of any cases, as I said earlier, where a person just gets up and just walks out of a police station or feels that he can. What reasonable person would think that?

Now, the Court considers the facts in this case further as follows. The defendant was being interviewed in the police station. The defendant was in a police interview room with two detectives, notwithstanding the fact that the door was unlocked as the defendant was told. He was also told that he was not under arrest.

He was not told that he was free to leave. The Court also considers that the questions that were being asked were specific not so much as to find out what ⁵⁶¹ happened. These questions weren’t to find out what happened, simply to find out what happened. These questions were being asked to gather evidence.

That’s what the detectives were doing, they were gathering evidence. What did you do? Where was she touched? When did it start?

How many times did you do it? And the argument is that Miranda warnings should not have been given? The court indicated that the State had the burden to prove by a preponderance of the evidence that the questioning did not constitute a custodial interrogation. It characterized the State’s argument as suggesting “that the defendant was free to leave and this was just a nice little conversation sitting on a nice, looks like a soft, comfortable sofa sitting back just talking.” The court stated, however, that the police “weren’t sitting back just talking.

They were building a case.” The court continued: And they weren’t trying to find out—This wasn’t a whodunit. This was “You did it,” and we want to know what you did, when you did it, how many times you did it. Now law enforcement in this case would have been better served if the defendant had been read his Miranda rights.... At the end of the day, this query remains, what is wrong with giving people their Miranda rights?

And I’ll tell you what’s wrong with it. As soon as defendants are given their Miranda warnings, they often lawyer up. And when they lawyer up, they don’t get the information that the detectives want to get. Now when the officer took the stand, and this was very telling, ... there was some suggestion in the beginning that she told him some certain things that she didn’t tell him. [Defense Counsel] argued that they probably usually tell them that they are free to leave, but she didn’t do it this time.

She just told him that the door was unlocked and why do that? Why say the door is unlocked if he’s—why not just say “You’re free to go, you’re not in custody”? ⁵⁶² The court ultimately concluded that appellee was in custody, and he was questioned without receiving Miranda warnings. It stated: This was a custodial interrogation. That no reasonable person would have thought they could get up and walk out of that room after they confessed to committing a violent crime.

That is just completely unreasonable to think that anybody would think they could go into a police station, sit down in an interrogation room, admit a violent crime and they’re free to leave. And I don’t think any lawyer in this room really believes that a person can go in a police station and confess to a violent crime and say, “I’ll see you later.” That just isn’t going to happen. It doesn’t happen in the real world. And the technique of doing that ought to be stopped and this message is sent.

The motion to suppress that statement is granted. The State informed the court that it would be filing an interlocutory appeal. It asked the court to rule on the issue of voluntariness. Appellee’s counsel argued that the issue was moot if the statement was suppressed.

The State asserted that it was not moot “because if the State were in a position to go forward in this case ... [it needed] a ruling on voluntariness.” The court declined to rule on the issue of voluntariness, given its ruling on the custody issue. The State then filed this timely appeal. DISCUSSION The State contends that the suppression court erred when it granted appellee’s motion to suppress his statement to the police. It argues that the court was wrong in finding that appellee was in custody at the time of his statements, and therefore, the statements appellee gave in the absence of Miranda warnings were inadmissible.

The State lists multiple errors that it asserts were committed by the suppression court when it made its ruling, including that the court: (1) ⁵⁶³ “shifted the burden of proof by requiring the State to prove that [appellee] was not in custody”; (2) applied an incorrect test for determining custody, finding that interrogations that take place inside of a police station are inherently custodial; (3) improperly “considered the detectives’ subjective intent”; and (4) found that “a suspect is in Miranda custody the moment he or she utters an incriminating statement regardless of whether any of the objective circumstances of the interrogation have changed.” The State argues that, “[w]hen the totality of the circumstances surrounding [appellee’s] interview are considered, it is clear [appellee] was never in custody.” It notes that appellee “voluntarily traveled to the police station in his own vehicle,” Detective Thorpe told appellee that the door to the interview room was not locked and that appellee was not under arrest, the demeanor of the detectives during the interview was “polite, courteous, and respectful,” and the interview lasted less than an hour and a half. Appellee contends that the circuit court properly found that his statements to the police were inadmissible. He makes two contentions in this regard. First, appellee argues that the court was correct in finding that he was in custody when police interrogated him and, because he was not given Miranda warnings, the court properly suppressed his statements.

In support of this contention, appellee states that he knew that he had been accused of sexually assaulting his daughter, he was interviewed in a room at the police station, after being led “through a locked, closed door that required an access card to open, a card only the police had,” the police closed the door to the interview room and did not advise that he was free to leave, the police questioned appellee in “an accusatory manner,” and, shortly after the interrogation ended, he was arrested. 11 ⁵⁶⁴ Second, appellee argues that, even if he was not in custody, his “statements should be suppressed as they were involuntary.” He points to the detectives’ statements about getting C. “the help she needed,” and he argues that “it is clear that appellee’s confession was made in reliance on an improper inducement.” L Custody This Court has explained the standard of review of a circuit court’s ruling on a motion to suppress as follows: [TJhis Court looks solely at the record of the suppression hearing, extending great deference to the factual findings of the suppression judge with respect to determinations regarding witness credibility and the weighing of first-level facts. Such determinations will not be disturbed unless clearly erroneous. All facts must be viewed in the light most favorable to the prevailing party on the motion. Although great deference is given to the trial court in relation to its factual findings, we perform our own independent constitutional appraisal of the law as it applies to the facts of the case.

Collins v. State, 192 Md.App. 192, 214-15 , 993 A.2d 1175 (2010) (citations and quotations omitted). When the issue on appeal involves custody for Miranda purposes, “we accept the factual findings of the court, unless clearly erroneous, but determine de novo the constitutional significance of those findings, i.e., whether on the facts as found, the defendant was or was not ⁵⁶⁵ ‘in custody.’ ” Buck v. State, 181 Md.App. 585, 609 , 956 A.2d 884 (2008). The Fifth Amendment to the United States Constitution, which applies to the States pursuant to the Fourteenth Amendment, Maryland v. Shatzer, — U.S. -, 130 S.Ct. 1213, 1219 , 175 L.Ed.2d 1045 (2010), provides that “[n]o person ... shall be compelled in a criminal case to be a witness against himself.” U.S. Const, amend. V. In Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), the United States Supreme Court adopted a set of prophylactic measures to protect a suspect from the “inherently compelling pressures” of custodial interrogation.

Shatzer, 130 S.Ct. at 1219 (quoting Miranda, 384 U.S. at 467 , 86 S.Ct. 1602 ). Prior to custodial interrogation, the police must warn a suspect that “he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has the right to the presence of an attorney, either retained or appointed.” Miranda, 384 U.S. at 444 , 86 S.Ct. 1602 . The Supreme Court has recognized, however, that, although “[a]ny police interview of an individual suspected of a crime has ‘coercive aspects to it,’ ” the Miranda requirements apply only to custodial interrogation. J.D.B. v. North Carolina, -U.S.-, 131 S.Ct. 2394, 2401-02 , 180 L.Ed.2d 310 (2011).

Thus, before a defendant can claim the benefit of Miranda warnings, the defendant must establish two things: (1) custody; and (2) interrogation. Smith v. State, 186 Md. App. 498, 518 , 974 A.2d 991 (2009), aff'd, 414 Md. 357 , 995 A.2d 685 (2010). The burden of “showing the applicability of the Miranda requirements,” i.e., that there was custody and interrogation, is on the defendant. Id. at 520 , 974 A.2d 991 .

Here, there is no dispute that appellee was subjected to interrogation when he was questioned at the police station for over an hour. The question here is whether he was in custody at the time of the interrogation. The Supreme Court recently stated that the issue “whether a suspect is ‘in custody’ is an objective inquiry.” J.D.B., 131 S.Ct. at 2402 . It explained as follows: ⁵⁶⁶ “Two discrete inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was at liberty to terminate the interrogation and leave.

Once the scene is set and the players’ lines and actions are reconstructed, the court must apply an objective test to resolve the ultimate inquiry: was there a formal arrest or restraint on freedom of movement of the degree associated with formal arrest.” Id. (quoting Thompson v. Keohane, 516 U.S. 99, 112 , 116 S.Ct. 457 , 133 L.Ed.2d 383 (1995)). At the suppression hearing, the circuit court articulated the relevant test as whether “a reasonable person in a police station think[s] that he or she can just get up and walk out.” As indicated, supra, this is part of the analysis, but it is not the complete analysis. As the Second Circuit has explained: Because seizure is a necessary prerequisite to Miranda , see, e.g., Oregon v. Mathiason, 429 U.S. [492, 495, 97 S.Ct. 711 , 50 L.Ed.2d 714 (1977) ]; California v. Beheler, 463 U.S. [1121, 1123-24, 103 S.Ct. 3517 , 77 L.Ed.2d 1275 (1983)], however, it makes sense for a court to begin any custody analysis by asking whether a reasonable person would have thought he was free to leave the police encounter at issue.

If the answer is yes, the Miranda inquiry is at an end; the challenged interrogation did not require advice of rights. On the other hand, if a reasonable person would not have thought himself free to leave, additional analysis is required because, as Berkemer v. McCarty, 468 U.S. [420, 439-40, 104 S.Ct. 3138 , 82 L.Ed.2d 317 (1984) ], instructs, not every seizure constitutes custody for purposes of Miranda. Cf. Posr v. Doherty, 944 F.2d 91, 98 (2d Cir.1991) (“It is not enough to say a person has been arrested simply because, due to police action, he reasonably believes he is not free to leave.”).

In such cases, a court must ask whether, in addition to not feeling free to leave, a reasonable person would have understood his freedom of action to have been ⁵⁶⁷ curtailed to a degree associated with formal arrest. See California v. Beheler, 463 U.S. at 1125 , 103 S.Ct. 3517 ; see also Stansbury v. California, 511 U.S. [318, 322, 114 S.Ct. 1526 , 128 L.Ed.2d 293 (1994) ]. Only if the answer to this second question is yes[,] was the person “ ‘in custody’ for practical purposes,” and “entitled to the full panoply of protections prescribed by Miranda.” Berkemer v. McCarty, 468 U.S. at 440 , 104 S.Ct. 3138 . United States v. Newton, 369 F.3d 659, 672 (2d Cir.), cert. denied, 543 U.S. 947 , 125 S.Ct. 371 , 160 L.Ed.2d 262 (2004).

Recent decisions of the Supreme Court and the Maryland appellate courts make clear that the test for custody is whether a reasonable person would understand that his freedom of action is restricted to a degree associated with a formal arrest. Shatzer, 130 S.Ct. at 1224 (“To determine whether a suspect was in Miranda custody[,] we have asked whether ‘there is a “formal arrest or restraint on freedom of movement” of the degree associated with a formal arrest.’ ”) (quoting New York v. Quarles, 467 U.S. 649, 655 , 104 S.Ct. 2626 , 81 L.Ed.2d 550 (1984)); State v. Rucker, 374 Md. 199, 210 , 821 A.2d 439 (2003) (“[T]he ultimate inquiry is simply whether there is a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.”); Smith, 186 Md.App. at 533-35 , 974 A.2d 991 (“That a detainee may not feel ‘free to leave’ ... is not a talisman for determining Miranda’s applicability,” but rather, the test is “ ‘whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.’ ”); Buck, 181 Md.App. at 627 , 956 A.2d 884 (“[CJustody is either a formal arrest or a situation that is tantamount to a formal arrest.”). In determining whether a person is in custody, a reviewing court must consider all of the surrounding circumstances. Bond v. State, 142 Md.App. 219, 228 , 788 A.2d 705 (2002).

Factors to consider include: [Wjhen and where it occurred, how long it lasted, how many police were present, what the officers and the defendant ⁵⁶⁸ 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, and whether the defendant was being questioned as a suspect or as a witness. Facts pertaining to events before the interrogation are also relevant, 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. Finally, what happened after the interrogation!;,] whether the defendant left freely, was detained or arrested may assist the court in determining whether the defendant, as a reasonable person, would have felt free to break off the questioning. Owens v. State, 399 Md. 388, 429 , 924 A.2d 1072 (2007) (quoting Whitfield v. State, 287 Md. 124, 141 , 411 A.2d 415 (1980)), cert. denied, 552 U.S. 1144 , 128 S.Ct. 1064 , 169 L.Ed.2d 813 (2008).