Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Although Miranda's protections generally do not apply to questioning which occurs during Terry seizures,see Berkemer, 468 U.S. at 439-40, 104 S.Ct. 3138; Resper, 793 A.2d at 458; Mcllwain v. United States, 568 A.2d 470, 472-73 (D.C. 1989), "experience demonstrates that the reach of Miranda is sometimes blurred in circumstances involving a Terry encounter," Miley v. United States, 477 A.2d 720, 722 (D.C. 1984), and that "the parameters of the terms, `custody' and `arrest' may change with the context." Id.
The Supreme Court, however, has made clear that the two concepts are not synonymous. The correct test for determining whether a person is in custody for Fifth Amendment purposes is whether the person is subject to the degree of restraint on freedom of movement to the degree associated with a formal arrest. See Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317 (1984) (quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983) (per curiam)); E.A.H., supra, 612 A.2d at 838; McIlwain v. United States, 568 A.2d 470, 472 (D.C. 1989). On the facts here, throughout the duration of Patton's initial contact with the police, his remaining with them during the investigation, and their accompanying him to the hospital, the police, although perhaps suspicious, were not depriving him of his freedom of movement.
California v. Beheler, 463 U.S. 1121, 1125 [103 S.Ct. 3517, 77 L.Ed.2d 1275] (1983) (per curiam) (emphasis added and internal quotation marks omitted); Berkemer v. McCarty, 468 U.S. 420, 439–40 [104 S.Ct. 3138, 82 L.Ed.2d 317] (1984). Furthermore, this court has held that a restraint on liberty which would constitute a seizure under the doctrine of Terry v. Ohio, 392 U.S. 1 [88 S.Ct. 1868, 20 L.Ed.2d 889] (1968), does not necessarily place the seized person in custody for Miranda purposes. McIlwain v. United States, 568 A.2d 470, 472–73 (D.C.1989); see Berkemer, supra, 468 U.S. at 439–40 .E.A.H., 612 A.2d at 838 (footnote omitted); see also Morris v. United States, 728 A.2d 1210, 1216 (D.C.1999) (holding that even if a reasonable person would not have felt free to leave the police station to which Morris had been taken for questioning, and where he had been for more than four hours, and even if Morris had thus been detained, the restraint was not the equivalentof a formal arrest, and Morris was not in custody for Miranda purposes when he made an incriminating admission).
See, e.g., In re E.A.H., 612 A.2d 836, 838-39 (D.C. 1992); McIlwain v. United States, 568 A.2d 470, 473 (D.C. 1989); see also Castellon, 864 A.2d at 154. Morales was not caught by surprise by the police visit, nor was she subjected to an unwelcome intrusion.
" California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983) (per curiam) (emphasis added and citations and internal quotation marks omitted); Berkemer v. McCarty, 468 U.S. 420, 439-40, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317 (1984). Furthermore, this court has held that a restraint on liberty which would constitute a seizure under the doctrine of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), does not necessarily place the seized person in custody for Miranda purposes. McIlwain v. United States, 568 A.2d 470, 472-73 (D.C. 1989);see Berkemer, supra, 468 U.S. at 439-40, 104 S.Ct. at 3150. Moreover, this court has twice rejected the notion that a person was in custody for Miranda purposes because he was questioned during the execution of a search warrant in his home, even though he was not free to leave.
A Terry stop must be reasonable in duration, but such stops can permissibly last for a significant time. Compare Sharpe, 470 U.S. at 682-88, 105 S.Ct. 1568 (upholding Terry stop lasting twenty minutes), and McIlwain v. United States, 568 A.2d 470, 473 (D.C. 1989) (upholding Terry stop lasting thirty minutes), with United States v. Place, 462 U.S. 696, 709-10, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) (holding that, under circumstances, Terry stop lasting ninety minutes was unreasonably long). Given the serious consequences of Terry stops, the degree of suspicion adequate to permit such stops must be set sufficiently high to strike an appropriate balance between the important interests at stake.
That said, we have never upheld a seizure for over an hour while police arranged a show-up identification. See, e.g., Hicks v. United States, 730 A.2d 657, 660 (D.C.1999) (concluding a twenty-five minute detention for a show-up identification was reasonable); see also McIlwain v. United States, 568 A.2d 470, 473 (D.C.1989) (finding a thirty-minute detention while awaiting arrival of “law enforcement officers specially trained to deal with the uniquely difficult offense of sexual abuse of a child” did not convert Terry investigatory stop into an unlawful arrest); accord Place, 462 U.S. at 710, 103 S.Ct. 2637 (“[W]e have never approved a seizure of the person for the prolonged 90–minute period involved here and cannot do so on the facts presented by this case.”). While it is not impossible for a detention of a suspect for over an hour to be reasonable, see, e.g., United States v. Richards, 500 F.2d 1025, 1029 (9th Cir.1974) (upholding a detention of slightly over an hour “where the suspects' own unsatisfactory responses to legitimate police inquiries were the principal cause of the extended detainment”), courts appear to conclude, more often than not, that such lengthy detentions are unreasonable. See generally 4 Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth Amendment § 9.2(f) n. 258 (5th ed
“For example, where the police specifically inform the suspect that she or he is not under arrest, and does not need to talk to the police, a stop for investigatory purposes is unlikely to be custodial....” In re I.J., 906 A.2d at 260 (citing Resper, 793 A.2d at 454);McIlwain v. United States, 568 A.2d 470, 472–73 (D.C.1989); see also In re A.J., 63 A.3d at 568 (Juvenile detained as a truant was not in Miranda custody where he was “advised” that the police “would drive him to the address that [he] had provided, so that a parent would have the opportunity to corroborate [his] explanation regarding why [he] was not at school.”). Again, no one factor is dispositive and advising the suspect that he is not under arrest is not “a sine qua non for avoiding a finding of Miranda custody.”
It certainly is a relevant, and important, part of the totality of the circumstances if the person being interviewed was told that he did not have to talk with the police officer and was, in fact, free to leave. See, e.g., McIlwain v. United States, 568 A.2d 470, 472-73 n. 3 (D.C. 1989) (holding that suspect was not in custody, even though confined to his room by police, where he was told that he was not under arrest and did not have to talk); In re Loredo, 125 Or.App. 390, 865 P.2d 1312, 1313-14 (1993) (thirteen-year-old interviewed in principal's office was not in custody; analyzing totality of the circumstances, including that officer told youth he was not under arrest, could leave if he wanted to, and did not have to speak with him); In re CSC, 118 P.3d 970, 976 (Wyo. 2005) (juvenile not in custody when interviewed in large conference room at high school by four police officers and a school official; court analyzed several factors, including that CSC was told he did not have to talk to the officers, was free to leave, and was not under arrest). However, a totality of the circumstances inquiry, by its nature, eschews per se rules.
"[A] restraint on liberty which would constitute a seizure under the doctrine of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), does not necessarily place the seized person in custody for Miranda purposes." E.A.H., supra, 612 A.2d at 838 (citing McIlwain v. United States, 568 A.2d 470, 472-73 (D.C. 1989)) (other citation and footnote omitted). "Moreover, this court has . . . rejected the notion that a person [is] in custody for Miranda purposes because he was questioned during the execution of a search warrant in his home, even though he was not free to leave."