Officer not in custody when he gave statement


Jane Smith ran away from home on June 19, 2007. Jane was fourteen years old at the time. Tara Smith, Jane’s mother, discovered that Jane was missing around 4:00 a.m. and called the Greenville Police Department (GPD) to report Jane’s disappearance.

Benjamin Roberson, then a patrol officer with the GPD, responded to Tara’s call. Roberson went to the Smiths’ house, then left in his patrol car with Tara following in a vehicle. It was raining steadily when Tara and Roberson located Jane riding her bike on the side of the road. Both Tara and Roberson questioned Jane as to where she had been and why she had left home. Tara requested that Jane be arrested, and Roberson handcuffed Jane and placed her in his patrol vehicle.

Roberson transported Jane to jail, where a youth court judge was contacted. The judge indicated to Roberson that he should release Jane back to her mother. Roberson returned Jane to Tara; however, as Tara and Roberson spoke at the front of the house, Jane fled from the back of the house. When Tara realized that Jane had run away again, she contacted the police. Roberson and two other officers returned to the house and searched for Jane, but were unable to find her.

Tara believed that Jane would not return home if Tara was still there, so Tara went to a friend’s house, where she left her vehicle. She then returned home and waited for Jane. Jane, apparently believing that her mother had gone to work, entered the house. Tara then disciplined Jane before taking her to the police, where Jane was taken into custody. Jane spent approximately two weeks in juvenile detention and was then taken to Brentwood Behavioral Healthcare of Mississippi in Flowood, Mississippi, for treatment of her mental and emotional problems.

As part of routine procedures at Brentwood, Jane was administered a pregnancy test, which showed that she was pregnant. When questioned as to how she had become pregnant, Jane told the Brentwood staff that she had been raped by the police officer who took her into custody in June. Jane’s status was also disclosed to her mother, who was upset at the news. A second pregnancy test, which was administered some time after the first test, revealed that Jane was not actually pregnant.

Roberson testified that he contacted Lieutenant Dondi Gibbs of the GPD after hearing rumors of Jane’s allegations. Roberson was eventually asked to come and speak with the police about Jane’s accusations. Roberson voluntarily went to the police station and spent approximately two hours speaking with Lieutenant Gibbs and Sergeant Michael Merchant, the investigator in charge of Roberson’s case. It is undisputed that Roberson was informed of his rights by means of Miranda warnings.

Lieutenant Gibbs and Sergeant Merchant testified that Roberson was initially unwilling to give a statement, but that he eventually admitted that he had had sex with Jane. Once it became clear that Roberson was going to confess to the assault, the officers began taping the interview. Thus, there are only about twenty recorded minutes out of the nearly two hours that Roberson spent at the police station. The officers testified that they spent the first hour and a half or so of the interview speaking with Roberson about how much time he might get if he had had sex with Jane, where he might be housed if he was taken into custody, and whether he could get probation if he was convicted.

At one point, Roberson indicated that he thought that maybe he should get an attorney due to the severity of the allegations; however, the interview proceeded without counsel for Roberson. After admitting to having had sexual relations with Jane, Roberson was allowed to leave the police station. Sergeant Merchant testified that he allowed Roberson to leave because the investigation into the alleged assault was still ongoing. Roberson was eventually arrested later in July 2007.

Roberson was convicted of sexual battery of a child by a person of trust and sentenced to 25 years. On appeal, he argued his statement should have been suppressed. MCOA affirmed.


First, as the circuit court found, Roberson was not in custody when he gave his statement to police. In Mississippi, the right to counsel attaches only once an individual is in custody. See Culp. An individual is in custody if a reasonable person would find his ability to freely leave restricted. In determining whether an individual is in custody, the officer’s subjective intent is irrelevant. See Godbold.

In Hunt, the Mississippi Supreme Court stated that: Whether a reasonable person would feel that she was in custody depends on the totality of the circumstances. Factors to consider include: (a) the place of interrogation; (b) the time of interrogation; (c) the people present; (d) the amount of force or physical restraint used by the officers; (e) the length and form of the questions; (f) whether the defendant comes to the authorities voluntarily; and (g) what the defendant is told about the situation.

In Hunt, the defendant voluntarily went to the sheriff’s office, was questioned during the late afternoon for a relatively short period of time, and was not physically restrained. However, the defendant was told that she could not leave until she gave a statement. Regardless, the Hunt court found that the trial judge did not commit manifest error by admitting her self-incriminating statement.

Similarly, in Godbold, the supreme court found that the first contact between the parties was made by the defendant, the defendant was questioned in an office, not in an interrogation room, the questioning was conducted during regular office hours, and no force or physical restraint was used to get the defendant to the meeting. The supreme court concluded that the defendant had not undergone custodial interrogation.

In the present case, Roberson voluntarily came to the police station; in fact, Roberson made the initial contact with the GPD when he called Lieutenant Gibbs to inquire about Jane’s accusation. Roberson was accompanied to the police station by his girlfriend and her son. He was questioned in Lieutenant Gibbs’s office, not in an interrogation room. The interview was conducted in the afternoon, and only Roberson, Lieutenant Gibbs, and Sergeant Merchant were present.

The questioning lasted for approximately two hours, during which time Roberson was not physically restrained or prevented from leaving in any way. Roberson was informed that Jane had given a statement alleging that Roberson had sexually assaulted her. Roberson was not searched prior to the interview, and he, in fact, retained possession of a cellular telephone that he used to send text messages during the meeting. Roberson testified that the text messages concerned going out to eat with his girlfriend and her son after the interview. It is clear that Roberson was making plans for the immediate future that did not include being arrested.

Sergeant Merchant testified that Roberson was free to leave at any time and that Roberson was never told that he could not leave. Under these circumstances, we cannot find error with the circuit court’s finding that Roberson was not in custody. Roberson has failed to show that the circuit court was manifestly in error in denying Roberson’s motion to suppress his statement on the ground of Roberson’s alleged request for counsel, as Roberson had no right to counsel because he was not in custody at the time of the interview.

Furthermore, even if Roberson had been in custody, we would still affirm the judgment of the circuit court. Although Roberson made some statement regarding an attorney, there was a dispute as to what he said. Sergeant Merchant and Lieutenant Gibbs testified at the suppression hearing that Roberson simply asked whether they thought he needed an attorney. Roberson, by contrast, indicated that he stated that he thought that he needed an attorney due to the severity of the allegations against him.

In Chamberlin, Lisa Jo Chamberlin’s interrogation continued after she asked the officer conducting the interview whether he thought she needed an attorney. The officer proceeded with the interview after Chamberlin indicated that she wanted to continue talking rather than invoke her right to counsel.

According to Sergeant Merchant and Lieutenant Gibbs, the situation here is analogous. Although Roberson questioned whether he needed an attorney, the officers told him that he would have to make that decision, and Roberson then continued to talk to the officers. Even had Roberson been in custody, the circuit court would not have been in error for finding his statement admissible under these circumstances.

Finally, Roberson contends that the officers made promises and coerced him into confessing to the assault. For a confession to be admissible, it must have been given voluntarily and not given as a result of promises, threats, or inducements.

Although the officers indicated that they discussed procedural issues with Roberson, such as where he might be housed and when he might be arrested, both officers were adamant that they never promised Roberson anything in return for his confession. Lieutenant Gibbs indicated that he explained to Roberson that all final decisions would be made by someone else.

The circuit court was entitled to find the officers more credible than Roberson. Therefore, even if Roberson had been in custody at the time of the questioning, we would find no error on this basis.