The restraint on freedom of movement must be imposed by the police to constitute custody. State v. Tucker, 131 N.H. 526, 530 (1989). In the absence of formal arrest, the trial court must determine whether a suspect's freedom of movement was sufficiently curtailed by considering how a reasonable person in the suspect's position would have understood the situation.
tent with this widely accepted approach, we have repeatedly recognized the importance of the absence or presence of accusatory questioning in our analysis of custody, contrasting accusatory questioning, which weighs in favor of custody, with questioning of a purely general nature, which supports a determination of no custody. SeeState v. Steimel, 155 N.H. 141, 146, 921 A.2d 378 (2007) (observing that officer's confronting defendant with suspicions constituted a "relevant factor," but concluding no custody because confrontation "occurred near the end of an otherwise general and casual conversation"); cf.State v. Graca, 142 N.H. 670, 671, 675, 708 A.2d 393 (1998) (concluding no custody, in part, when questioning was of a "purely general nature," concerning defendant's identity and reason for being in park); State v. Green, 133 N.H. 249, 258, 575 A.2d 1308 (1990) (finding no custody, in part because police did not accuse defendant of involvement in crimes for which he was later charged); State v. Tucker, 131 N.H. 526, 529, 557 A.2d 270 (1989) (finding no custody, in part, when officer questioned defendant in connection with general investigation of airplane accident and defendant was not focus of investigation). In State v. Dedrick, we upheld the trial court's determination of custody after it "discerned a sea change in the tenor and character of Dedrick's interview," which "would have signaled [to] a reasonable man in the same circumstances that the freedom officers had accorded him earlier was no longer available and that, as often as he made denials, they would renew their accusations until, in the end, he either confessed or asked, as Dedrick in fact did, to speak with an attorney."
[5, 6] With regard to police questioning that occurs while a suspect is a patient at a hospital, this Court has previously stated, albeit in unpublished opinions, that "the restraint giving rise to 'custody' must be restraint instigated by the police, and for that reason the majority rule is that confinement to a hospital bed does not, by itself, amount to ‘custody’ for Miranda purposes." Griggs v. Commonwealth, 2006-SC-000846-MR, 2008 WL 1851080, at *5 (Ky. Apr. 24, 2008) (citing Wofford v. State, 330 Ark. 8, 952 S.W.2d 646 (Ark. 1997); DeJesus v. State, 655 A.2d 1180 (Del. 1995); State v. Tucker, 131 N.H. 526, 557 A.2d 270 (N.H. 1989); People v. Milhollin, 751 P.2d 43 (Colo. 1988)). See also, Hardin v. Commonwealth, 2015-SC-000614-MR, 2016 WL 7665872, at *2 (Ky. Dec. 15, 2016) (quoting Griggs, 2008 WL 1851080, at *6).
Other courts have held, and we agree, that the restraint giving rise to "custody" must be restraint instigated by the police, and for that reason the majority rule is that confinement to a hospital bed does not, by itself, amount to "custody" for Miranda purposes. Wofford v. State, 330 Ark. 8, 952 S.W.2d 646 (Ark. 1997); DeJesus v. State, 655 A.2d 1180 (Del. 1995); State v. Tucker, 131 N.H. 526, 557 A.2d 270 (N.H. 1989) (collecting cases); People v. Milhollin, 751 P.2d 43 (Colo. 1988). Rather, hospital questioning, like questioning elsewhere, is not custodial unless the circumstances would lead a reasonable person to believe that were he capable of leaving the hospital, the police would not allow him to do so.
Federal appellate courts and a substantial majority of state courts have found that custody is not established merely because a suspect is unable to leave the hospital due to his or her medical condition. See, e.g., United States v. Robertson, 19 F.3d 1318, 1321 (10th Cir. 1994) (hospitalized suspect not in custody where officers did not restrict his freedom of movement through physical restraint or display of authority); United States v. Martin, 781 F.2d 671, 673 (9th Cir. 1985) (hospitalized suspect not in custody where police were not responsible for hospitalization and did not unnecessarily extend it); State v. Tucker, 557 A.2d 270, 272 (N.H. 1989) (following the majority of state and federal authority in finding that "the restraint contemplated by Miranda is that interference with the defendant's freedom which is imposed by the police" (emphasis added)); Commonwealth v. Ellis, 549 A.2d 1323, 1333 (Pa.Super.Ct. 1988) (holding that appellant was not in custody for Miranda purposes where police officer questioned him while he awaited treatment in hospital emergency room). We follow the majority approach and hold that the restraint on freedom of movement incumbent in hospitalization does not, on its own, constitute custody for Miranda purposes.
In each case, the conclusion concerning the custodial nature of the interrogation depended upon the facts which were presented. See, e.g., State v. Tucker, 131 N.H. 526, 557 A.2d 270, 272-73 (1989) (collecting cases) and Annotation, What Constitutes "Custodial Interrogation" Within Rule of Miranda v. Arizona Requiring That Suspect Be Informed of His Federal Constitutional Rights Before Custodial Interrogation, 31 A.L.R.3d 565, 620-25 (1970). The record in Hammond's case reveals that Hammond was in the emergency room area of the hospital as a result of his medical condition only and not because of any police action.
The consensus of courts is that questioning a suspect under such circumstances is not custodial interrogation for purposes of Miranda. (See, e.g., United States v. Jamison (4th Cir. 2007) 509 F.3d 623; United States v. Martin (9th Cir. 1986) 781 F.2d 671; State v. Tucker (N.H. 1989) 557 A.2d 270, 272; State v. Lapp (Mont. 1983) 658 P.2d 400; cf. People v. Mosley (1999) 73 Cal.App.4th 1081, 1090 [wounded suspect was not in custody when the police questioned him in the back of an ambulance].) Appellant correctly notes the interview became somewhat accusatory about 15 minutes in, when Officer Mariscal shifted the focus of his questions to appellant's drinking and whether he was intoxicated, an area of inquiry that ultimately led to his arrest.
An individual is not typically found to be in custody when held for medical treatment at a hospital. See United States v. Martin, 781 F.2d 671, 673 (9th Cir. 1985); see also State v. Tucker, 557 A.2d 270, 272 (N.H. 1989) (collecting cases holding that questioning of a suspect who is confined in hospital but not under arrest is not custodial interrogation). However, law enforcement restraint amounting to custody can result if "the police took a criminal suspect to the hospital from the scene of a crime, monitored the patient's stay, stationed themselves outside the door, arranged an extended treatment schedule with the doctors, or some combination of these."
Merely responding, while hospitalized and unrestrained, to a police officer's questions regarding a possible crime does not alone rise to the level of custodial interrogation for purposes of Miranda. See State v. Tucker, 557 A.2d 270, 272 (N.H. 1989) (noting majority of courts have determined police must impose a restraint on defendant's freedom of movement in hospital to implicate Miranda). Under these circumstances, no reasonable person would believe she was deprived of her freedom in a significant way. Orner, therefore, was not in custody, and no Miranda violation occurred. ¶26 Orner also argues that the three separate interviews amounted to a "three-stage ploy to obtain inculpatory statements," thereby rendering the statements made after Officer JW informed him of his Miranda rights inadmissible under Missouri v. Seibert, 542 U.S. 600 (2004).
Defendant also asserts she could not leave the emergency room, but any limitation on her freedom of movement was due to the medical care she was receiving, not the police presence. (Cf. People v. Mosley (1999) 73 Cal.App.4th 1081, 1091 [defendant not in custody while “being treated by paramedics in the ambulance”]; accord State v. Tucker (N.H. 1989) 557 A.2d 270, 272 [defendant not in custody at hospital room; “the restraint contemplated by Miranda is that interference with the defendant’s freedom which is imposed by the police”; the “consensus of American case law is that questioning of a suspect who is confined in hospital but not under arrest is not custodial interrogation”]; State v. Lapp (Mont. 1983) 658 P.2d 400, 403 [defendant not in custody in emergency room].) Based on the totality of these circumstances, a reasonable person would not consider defendant’s situation in the hospital “as tantamount to a formal arrest.”