Summary
In Wexler, the Court of Criminal Appeals rejected the defendant's argument that she was subjected to a custodial interrogation even though she was questioned while detained outside her house in a police car as police executed a search warrant looking for drugs inside the home.
Summary of this case from Go Yens v. StateOpinion
NO. PD-0241-20
06-30-2021
Suzanne Elizabeth WEXLER, Appellant v. The STATE of Texas
John Crump, for State. Nicholas Mensch, for Appellant.
John Crump, for State.
Nicholas Mensch, for Appellant.
OPINION
Keel, J., delivered the opinion of the Court in which Keller, P.J., and Hervey, Richardson, Yeary, Slaughter, and McClure, JJ., Joined. Appellant challenges the admissibility of a statement she made to police during the execution of a search warrant, claiming that the statement was a product of custodial interrogation. The court of appeals determined that Appellant made the statement before she was in custody, and it was properly admitted by the trial court. Wexler v. State , 593 S.W.3d 772, 775 (Tex. App.—Houston [14th Dist.] 2019). We granted Appellant's petition for discretionary review to decide whether the court of appeals erred in this determination. We conclude that Appellant failed to meet her burden of showing that she was in custody when she made the statement, and we affirm the judgment of the court of appeals.
I. Background
Police were told that the house at 318 Avenue A in South Houston was a site of drug dealing. During a week of surveillance, narcotics K-9 officers arrested four people leaving the house in possession of methamphetamine, and police got a warrant to search the house.
The search warrant was executed with the help of uniformed and plainclothes officers, narcotics K-9 units, and the Harris County Sheriff's Office High Risk Operations Unit (HROU), a SWAT-like team whose function was to secure the residence and detain any occupants. While uniformed officers in marked police cars blocked both ends of the street, 20 to 25 HROU officers surrounded the house, announced via loudspeaker from an armored vehicle that they had a search warrant, and directed occupants to exit the house. Appellant came out and was detained by HROU officers and put in the back of a patrol car.
While HROU did a protective sweep of the house, narcotics detective Jerome Hill questioned Appellant. Hill suspected that Appellant and someone named Jimmy were involved in distributing drugs, but Hill did not tell Appellant that she was a suspect, and he did not give her any warnings. The encounter was not recorded, but Hill testified that he said, "We have a search warrant. Tell me where the narcotics are. It will save us some time doing the search. We're going to find it no matter what." Appellant told him that the drugs were "in her bedroom in a dresser drawer." Hill and other narcotics officers went into the house to conduct the search and found 25.077 grams of methamphetamine in the dresser drawer, marijuana packaged for individual sale, drug paraphernalia, scales, cash, and handgun magazines and ammunition. Hill arrested Appellant for possession with intent to distribute a controlled substance.
At trial Appellant objected to the admission of her statement that the drugs were in her bedroom in a dresser drawer. She claimed the statement was hearsay and that it should be excluded because Hill was trying to extract a confession and obtain evidence from her without giving her any warnings. The State responded that it was a statement by a party opponent or a statement against interest and that Appellant was detained but not in custody when she gave the statement. After voir dire examination of Hill and arguments of the parties outside the presence of the jury, the trial court overruled Appellant's objection and admitted her statement.
Appellant's friend testified in her defense. He said Appellant and her boyfriend, Jimmy, had broken up and that she had moved out of the house months before the search; she was in the house on the day of the search only to retrieve some of her belongings, and the drugs belonged to Jimmy. During deliberations, the jury asked for clarification of Detective Hill's testimony and sent out a note asking, "When Ms. Wexler was asked by Mr. Hill where the drugs would be found, was her response ‘my bedroom’ or ‘the bedroom’ or another variant?" The court read back to the jury Hill's testimony: "The defendant told me it would be in her bedroom in a dresser drawer." The jury found Appellant guilty, and the trial court sentenced her to 25 years in prison.
II. Court of Appeals
Appellant claimed on appeal that she was in custody when she was placed in the back of the patrol car and that she should have been given Article 38.22 and Miranda warnings before Hill questioned her. Miranda v. Arizona , 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ; TEX. CODE CRIM. P. art. 38.22. She said her statement to Hill should have been excluded because she was not given the warnings. Wexler , 593 S.W.3d at 777. The court of appeals determined that the statement was properly admitted because Appellant was temporarily detained rather than under arrest when she made the statement. Id. at 780.
The fact that Appellant's freedom of movement was restricted when she was placed in the patrol car did not establish that she was under custodial arrest because a person under detention also may have her freedom of movement restricted but to a lesser degree. Id. at 779. There was no evidence that Appellant was aware of the presence of the armored vehicle or the number of officers on the scene, or that access to the street had been blocked. Id. at 780. Even if she were aware, this would show only one factor—the amount of force used—to determine custody. Id. (citing State v. Sheppard , 271 S.W.3d 281, 291 (Tex. Crim. App. 2008) ). There was no evidence that police used physical force on Appellant, handcuffed her, threatened her, displayed a firearm, or even spoke to her in a hostile tone. Wexler , 593 S.W.3d at 780.
There was evidence that an investigation was underway and that Appellant was detained during a protective sweep of the house, but the detention was brief, Appellant was questioned on scene, Hill was the only officer to question her, and he did not tell her that she was a under arrest or even a suspect. Id. (citing Herrera v. State , 241 S.W.3d 520, 525–26 (Tex. Crim. App. 2007) ("The subjective belief of law enforcement officials about whether a person is a suspect does not factor into our ‘custody’ determination unless an official's subjective belief was somehow conveyed to the person who was questioned.")). When Appellant was questioned, drugs had not yet been found, and Hill did not have probable cause to arrest her. Wexler , 593 S.W.3d at 780.
The court of appeals concluded that the record supported the trial court's implied finding that Appellant was temporarily detained and not arrested when Hill questioned her, so Hill was not required to warn her under Miranda or Article 38.22, and the trial court did not err in admitting her statement. Wexler , 593 S.W.3d at 780.
The dissenting opinion asserted that under the facts of the case, a reasonable person would have believed she was under restraint to the degree associated with an arrest. Id. at 783 (Hassan, J., dissenting) (quoting Dowthitt v. State , 931 S.W.2d 244, 254 (Tex. Crim. App. 1996) ). "Appellant left the protections of a private home only after being instructed by an organized and well-equipped amassment of law enforcement personnel." Wexler , 593 S.W.3d at 784 (Hassan, J., dissenting). According to the dissent, these facts demonstrate that the police created a situation that would have led a reasonable person to believe her freedom had been significantly restricted, and Appellant was entitled to Miranda warnings. Id. at 785 (citing Dowthitt , 931 S.W.2d at 255 ).
III. Standard of Review
A trial court's ruling on a motion to suppress is reviewed for abuse of discretion and should be reversed only if it is outside the zone of reasonable disagreement. State v. Cortez , 543 S.W.3d 198, 203 (Tex. Crim. App. 2018) ; State v. Story , 445 S.W.3d 729, 732 (Tex. Crim. App. 2014). Custody is a mixed question of law and fact that does not turn on credibility and demeanor unless the witness testimony, if believed, would always decide the custody question. State v. Saenz , 411 S.W.3d 488, 494 (Tex. Crim. App. 2013). We apply a bifurcated standard of review, giving almost total deference to the trial court's factual assessment of the circumstances surrounding the questioning and reviewing de novo the ultimate legal determination of whether the person was in custody under those circumstances. Id.
When a trial court denies a motion to suppress and does not enter findings of fact, we view the evidence in the light most favorable to the ruling and assume the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record. Herrera , 241 S.W.3d at 527. The party that prevailed in the trial court is afforded the strongest legitimate view of the evidence, and all reasonable inferences that may be drawn from that evidence. State v. Garcia-Cantu , 253 S.W.3d 236, 241 (Tex. Crim. App. 2008).
IV. Miranda and Article 38.22
Miranda and Article 38.22 deem statements produced by custodial interrogation to be inadmissible unless the accused is first warned that she has the right to remain silent, her statement may be used against her, and she has the right to hire a lawyer or have a lawyer appointed. Miranda , 384 U.S. at 479, 86 S.Ct. 1602 ; TEX. CODE CRIM. P. art. 38.22. In addition, Article 38.22 requires a warning that the accused has the right to terminate the interview at any time. Herrera , 241 S.W.3d at 526. The warnings are required only when there is custodial interrogation. Id.
A custody determination requires two inquiries: the circumstances surrounding the interrogation and whether a reasonable person in those circumstances would have felt that she was not free to leave. Thompson v. Keohane , 516 U.S. 99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995). "Once the scene is set and the players’ lines and actions are reconstructed, the court must apply an objective test" to determine whether there was restraint on freedom of movement of a degree associated with arrest. Id. The ultimate inquiry is whether, under the circumstances, a reasonable person would have believed that her freedom of movement was restricted to the degree associated with a formal arrest. Stansbury v. California , 511 U.S. 318, 322, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994) ; Dowthitt , 931 S.W.2d at 254. The "reasonable person" standard presupposes an innocent person. Dowthitt , 931 S.W.2d at 254 (citing Florida v. Bostick , 501 U.S. 429, 438, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) ).
Dowthitt outlined four general situations that may constitute custody: (1) the suspect is physically deprived of her freedom of action in any significant way, (2) a law enforcement officer tells the suspect that she cannot leave, (3) law enforcement officers create a situation that would lead a reasonable person to believe her freedom of movement has been significantly restricted, or (4) there is probable cause to arrest, and law enforcement officers do not tell the suspect that she is free to leave. 931 S.W.2d at 255.
For the first three situations, the restriction upon freedom of movement must amount to the degree associated with an arrest as opposed to an investigative detention. Id. For the fourth situation, the officer's knowledge of probable cause must be manifested to the suspect, and custody is established only if the manifestation of probable cause, combined with other circumstances, would lead a reasonable person to believe she is under restraint to a degree associated with an arrest. Id. ; Stansbury , 511 U.S. at 325, 114 S.Ct. 1526. An officer's subjective intent to arrest the suspect is irrelevant unless that intent is communicated or otherwise manifested to the suspect. Dowthitt , 931 S.W.2d at 254 (citing Stansbury , 511 U.S. at 324-25, 114 S.Ct. 1526 (police knowledge or beliefs bear on the custody issue only if they are conveyed to the suspect)).
To evaluate whether a reasonable person in the suspect's situation would have felt that there was a restraint on her freedom to a degree associated with arrest, the record must establish the circumstances manifested to and experienced by her. State v. Ortiz , 382 S.W.3d 367 (Tex. Crim. App. 2012) ("only the objective circumstances known to the detainee should be considered in deciding what a reasonable person in his position would believe."). See also Thompson , 516 U.S. at 113, 116 S.Ct. 457 ("if encountered by a ‘reasonable person,’ would the identified circumstances add up to custody"); Berkemer v. McCarty , 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984) ("[T]he only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation.").
It is the defendant's initial burden to establish that her statement was the product of custodial interrogation. Herrera , 241 S.W.3d at 526 ; Wilkerson v. State , 173 S.W.3d 521, 532 (Tex. Crim. App. 2005).
V. Analysis
Appellant had to do more than object to the admission of her statement; she had to show that it was a product of custodial interrogation. Herrera , 241 S.W.3d at 526. She failed to do so.
A. The Circumstances Surrounding the Interrogation
It is undisputed that HROU announced over a loudspeaker that the house was being searched and that any occupants must exit. Appellant exited and was seated in the back of a patrol car while HROU did a protective sweep of the house. Narcotics officers had not yet searched the house when Hill asked Appellant about the drugs in the house, and Hill arrested Appellant after the drugs were found. The record supports findings that the detention was brief, the investigation was efficient, Hill was the only officer to question Appellant, Appellant was not removed from the location of the search, and she was not told she could not leave. Viewing the evidence in the light most favorable to the trial court's ruling, Appellant failed to show that the objective circumstances of her detention would lead a reasonable person to believe that her freedom was restrained to a degree associated with an arrest.
Appellant argues that the record demonstrates that she would have been aware of the large contingent of officers on the scene, but she offered no evidence of her awareness of the police presence, and the trial court was not required to infer it. See York v. State , 342 S.W.3d 528, 544 (Tex. Crim. App. 2011) (with respect to suppression issues, the trial judge can draw rational inferences in favor of either party). Although Hill testified about the various law enforcement entities that helped execute the warrant, no one testified about whether Appellant would have been able to see them. For example, Hill testified that the HROU had an armored vehicle and over 20 officers who "surrounded" the house, but he did not testify where the vehicle was or where the officers were positioned. Hill testified about the presence of narcotics officers on the scene, but he did not testify about their number or their location. Hill testified that patrol cars blocked the ends of the street, but he did not testify about their distance from the house or whether they were visible to Appellant at any point.
B. Would a reasonable person in those circumstances have felt that she was not free to leave?
Appellant says the court of appeals’ majority failed to consider whether a reasonable person in her circumstances would have perceived that her physical freedom was restricted to the degree associated with a formal arrest. She argues that custody for Miranda purposes does not turn on the reasonableness of the police actions under the Fourth Amendment or merely a distinction between investigative detention and full arrest. She maintains that the court of appeals erred in focusing on the reasonableness of the actions of the police and relying on Sheppard , 271 S.W.3d at 291.
We agree with Appellant that the majority opinion did not clearly articulate the "ultimate inquiry" pertinent to the custody question for Miranda purposes—whether a reasonable person in the defendant's circumstances would have believed that her freedom of movement was restricted to the degree associated with a formal arrest. Stansbury , 511 U.S. at 322, 114 S.Ct. 1526. And Sheppard , a Fourth Amendment case, did not deal with that "ultimate inquiry." Sheppard , 271 S.W.3d at 283 (describing issue before the Court as "whether a person is ‘arrested’ for purposes of the Fourth Amendment if he is temporarily handcuffed and detained, but then released.") (footnote omitted).
But the majority below correctly recited the reasonable person standard and the need to examine "all the objective circumstances surrounding the questioning." Wexler , 593 S.W.3d at 778. It relied on cases addressing custody for Miranda purposes. Id. at 778-79 (citing, e.g., Herrera , 241 S.W.3d at 525, and Dowthitt , 931 S.W.2d at 255 ). And it looked not only at the actions of the police, but also at whether Appellant was aware of those actions. Wexler , 593 S.W.3d at 780. Ultimately, its holding was in line with Berkemer , 468 U.S. 420, 104 S.Ct. 3138.
In Berkemer , the Supreme Court considered whether a traffic stop rendered a person in custody for Miranda purposes. 468 U.S. at 435, 104 S.Ct. 3138. A traffic stop significantly curtails the freedom of the driver and passengers and is a seizure for Fourth Amendment purposes, but due to the nonthreatening, noncoercive aspect of the detention, a traffic stop usually does not constitute custody for Miranda purposes. Berkemer , 468 U.S. at 436-40, 104 S.Ct. 3138. This is true even though a person temporarily detained pursuant to a traffic stop would not feel free to leave. Id. at 436, 104 S.Ct. 3138. A motorist detained pursuant to a traffic stop is entitled to Miranda protections if he is subjected to treatment that renders him in custody for practical purposes; Miranda safeguards become applicable as soon as a suspect's freedom is curtailed to a degree associated with a formal arrest. Berkemer , 468 U.S. at 440, 104 S.Ct. 3138. In concluding that the officer's treatment of Berkemer was not the functional equivalent of a formal arrest, the Court considered the short duration of the detention, its public setting, and the fact that Berkemer was not informed that the detention would not be temporary. Id. at 441-42, 104 S.Ct. 3138.
Similarly, Appellant's detention was of short duration, it was in a public setting, and she was not told that her detention would not be temporary. There was no evidence that Appellant was aware of an overwhelming police presence. Accordingly, the court of appeals correctly held that Appellant failed in her burden of proving that she experienced the functional equivalent of a formal arrest.
Appellant relies on Ortiz , but it is distinguishable. Ortiz was stopped for a traffic offense and interrogated by an officer named Johnson about drug possession. Ortiz , 382 S.W.3d at 369-70. By the time Ortiz made the incriminating statements that the bundle under his wife's skirt was cocaine, he and his wife were faced with at least two police cars and three officers, they had been handcuffed and frisked, the bundle had already been found, Ortiz knew it had been found, Ortiz knew that Johnson knew that Ortiz was on probation for cocaine possession, and Johnson's several questions and their timing conveyed his suspicion that Ortiz and his wife were acting in cahoots with respect to the drugs taped to her leg. Ortiz , 382 S.W.3d at 370-71, 374 fn.32. Given the objective circumstances, a reasonable person in Ortiz's position would have believed he was in custody when he made the incriminating statement. Id. at 377.
Appellant points to the number of officers she faced as compared with the number faced by Ortiz and argues that the show of force was overwhelming, but unlike the record in Ortiz , which included video of the traffic stop, id. at 369, the record here does not show what Appellant saw or knew about the show of force arrayed against her. Appellant also argues that Hill's question of her was like the questions posed to Ortiz because it suggested that Hill suspected her of drug possession. But whereas Hill posed a single question before any search took place, Johnson repeatedly asked Ortiz about drugs, and the questions yielded an incriminating response only after another officer told Johnson in Ortiz's presence that they had found "something" under Mrs. Ortiz's skirt. Id. at 375. That announcement was a relevant consideration only because Ortiz "apparently heard it[.]" Id.
Significantly, the Ortiz opinion's custody analysis scrupulously divorced the circumstances that were known to Ortiz from those that were not and considered only those known to him. See, e.g., id. at 370 fn.8 (declining to consider the request for backup because "it is unclear whether the appellee could have overheard" it); id. at 370 fn.11 (declining to consider that the bundle taped to Mrs. Ortiz's leg was known to be cocaine because "that information was not related to Johnson within the appellee's earshot"); id. at 374 fn. 32 (noting that Ortiz knew that Johnson knew that Ortiz was on probation for a drug offense, making it a relevant consideration in the custody analysis). That scrupulousness underscores that the suspect's knowledge of the circumstances surrounding the interrogation is crucial to the custody analysis. But in this case, that crucial element is missing, and the trial court was not compelled to fill in the evidentiary gaps by inference. VI. Conclusion
Appellant did not meet her burden to establish on the record facts showing that her statement to Hill was the product of custodial interrogation, and the trial court properly admitted the statement. The judgment of the court of appeals is affirmed.
Walker, J., filed a dissenting opinion.
Newell, J., dissented.
DISSENTING OPINION
Walker, J., filed a dissenting opinion.
The Court today concludes that Suzanne Elizabeth Wexler, Appellant, was not in custody and therefore her statements to police were not the product of a custodial interrogation. I cannot agree. Police commanded her to come out of the residence, placed her in the back of a police car, and told her they were going to find drugs and should just tell the police where the drugs were. Because her freedom of movement was significantly curtailed, and a reasonable person in Appellant's situation would not have felt free to leave, Appellant was in custody. The court of appeals got it wrong, and we should reverse. Because this Court does not, I respectfully dissent.
I — Physically Deprived of Freedom of Action
As the Court points out, in Dowthitt we outlined four general situations when a person is in custody:
(1) when the suspect is physically deprived of his freedom of action in any significant way, (2) when a law enforcement officer tells the suspect that he cannot leave, (3) when law enforcement officers create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted, and (4) when there is probable cause to arrest and law enforcement officers do not tell the suspect that he is free to leave.
Dowthitt v. State , 931 S.W.2d 244, 255 (Tex. Crim. App. 1996) (citing Shiflet v. State , 732 S.W.2d 622, 629 (Tex. Crim. App. 1985) ).
The Court determines that Appellant was not in custody because her detention was similar to a traffic stop, which usually does not constitute custody due to the nonthreatening and noncoercive aspect of the detention. See Berkemer v. McCarty , 468 U.S. 420, 436–40, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). That is, even though Appellant was detained, her detention was short, in a public setting, and she was not told that the detention would not be temporary. See id. at 441–42, 104 S.Ct. 3138.
Those factors may be true, but the analogy to a run-of-the-mill traffic stop is inapt. Appellant was not waiting safely in her own vehicle during a noncoercive and nonthreatening traffic stop. Police showed up to the residence, commanded her over loudspeaker to leave the safety of the residence, and placed her in the back of a police car. As we noted in Shiflet , the kind of custody that occurs when a suspect is physically deprived of his freedom of action in any significant way (the first kind of custody listed in Dowthitt ) can occur when a person is placed in a police vehicle and taken to the station house for questioning. Shiflet , 732 S.W.2d at 629. The same can be said for placing a person in a police vehicle and conducting the questioning right there, because there is "little difference in questioning in the police station and interrogation in a police vehicle." See Ancira v. State , 516 S.W.2d 924, 926 (Tex. Crim. App. 1974).
Indeed, we have found custody even in traffic stops where the driver is placed in the back of the police car. See Ragan v. State , 642 S.W.2d 489 (Tex. Crim. App. 1982) (defendant stopped for traffic violations was in custody where officer, after observing several indications of intoxication, "asked" the defendant to have a seat in the police car, "assisted" him to the police car, and "helped" him sit in the back of the police car, after which the officer closed the door, sat in the driver's seat, and began asking questions); Gonzales v. State , 581 S.W.2d 690, 691 (Tex. Crim. App. [Panel Op.] 1979) (defendant, stopped for a traffic violation, was in custody where he was placed in the back of a police car and two officers were sitting in the car waiting for a radio report on the defendant's driver's license); see also Higgins v. State , 924 S.W.2d 739 (Tex. App.—Texarkana 1996, pet. ref'd) (defendant was in custody where he was placed in back of a police car; statement nevertheless admissible because it was spontaneously given and not the result of interrogation), Port v. State , 798 S.W.2d 839 (Tex. App.—Austin 1990, pet. ref'd) (defendant questioned while in back seat of police car was in custody; statement nevertheless admissible because Miranda rights were waived).
I agree with Justice Hassan's dissenting opinion below that placing a person in the back of a police car significantly impacts a person's freedom. Wexler v. State , 593 S.W.3d 772, 784–85 (Tex. App.—Houston [14th Dist.] 2019) (Hassan, J., dissenting) (citing United States v. Blum , 614 F.2d 537, 540 (6th Cir. 1980) ). "While appellant was seated in the patrol car with the officer[ ] awaiting [the execution of the search warrant], it is inconceivable that [she] was free to leave if [she] had desired to do so." Gonzales , 581 S.W.2d at 691.
And she was not simply sitting in the car waiting for the search to conclude. The officer in the car with her told her that they had a warrant to search the residence and they were going to eventually find the drugs. This shows that Appellant was not free to leave. I would conclude that Appellant was in custody when she was placed in the back of a police car and her freedom of movement was significantly impacted. Shiflet , 732 S.W.2d at 629.
Rep. R. vol. 3, 58.
II — Reasonable Person Would Not Feel Free to Leave
Additionally, the Court concludes that, because Appellant was not aware of the overwhelming police presence at the scene, she would not have believed that she was not free to leave. According to the Court, "the record does not show what Appellant saw or knew about the show of force arrayed against her." But the record does show.
Appellant was aware that police were, over a loudspeaker, commanding her to leave the residence. When she did so, she was aware that multiple officers were present, because more than one officer detained her, and, as she was exiting the house, other officers were entering the house or had already entered it. Furthermore, these officers were SWAT-like. She was immediately detained and placed in the back of a police car, and obviously she must have been aware that she was detained and placed in the back of a police car. Even if Appellant was not aware that one of the vehicles present was an armored one and she was not aware of exactly how many officers there were, the reasonable person would appreciate that a significant police force was there. This show of force, that Appellant was aware of, weighs in favor of finding that a reasonable person would not have felt free to leave.
Rep. R. vol. 3, 46.
Id. at 46–51.
Id. at 43.
Id. at 47, 48–49.
Finally, while Appellant was in the back of the police car, she was being questioned by a police officer, who told her either that:
Hey, we have a search warrant. We're going to find the drugs. Just tell me where they are.
Id. at 52.
or
Hey, we have a search warrant. We're going to find the drugs in the house and any contraband. Just tell me where it is.
Id.
or
We have a search warrant. Tell me where the narcotics are. It will save us some time doing the search. We're going to find it no matter what.
Id. at 58.
The majority downplays this as the "[posing] of a single question before any search took place," but even as a single question, the officer's statement clearly conveyed to Appellant that police were looking for drugs and that they believed she knew where the drugs were located. A reasonable person, after being placed in a police car, being told by a police officer that they have a warrant and are searching the residence for drugs, being told that they will find the drugs, and then being asked one question by that officer—"Where are the drugs?"—would feel like a suspect. While being a focus of the investigation is not itself determinative of being in custody, it is a relevant factor to a custody determination. Meek v. State , 790 S.W.2d 618, 621 (Tex. Crim. App. 1990) ; Dowthitt , 931 S.W.2d at 254. This factor, along with the other circumstances surrounding Appellant's questioning, weigh in favor of a conclusion that she would not feel free to leave.
III — Conclusion
In short, the police made a show of force and commanded Appellant to leave the residence. Once she did so, the police placed her in a police vehicle, told her they were searching the residence for drugs, and wanted her to tell them where the drugs were. Any reasonable person in Appellant's position would not feel free to leave. This constitutes custody. I disagree with the Court's conclusion that it was not, and I respectfully dissent to the Court's decision to affirm the judgment of the court of appeals.