The defendant, Matthew Sizemore, appeals his convictions for possession of child pornography. See RSA 649-A:3 (Supp. 2011). He argues that the trial court erred in denying his request to suppress statements that he made to police in violation of his Miranda rights, see Miranda v. Arizona, 384 U.S. 436 (1966). We affirm.
We briefly set forth the relevant evidence presented at the suppression hearing. Police Chief Fifield and Lieutenant O'Brien went to the defendant's house and asked him to come outside, explaining that a search warrant was about to be delivered. They declined his invitation to go inside, advising him that they wanted him outside of the house to maintain the integrity of the search area. The defendant came outside onto his porch and while waiting for delivery of the warrant, repeatedly asked the officers the reason for their visit. The officers did not answer the question as they were waiting for the team that was to execute the search warrant to arrive and to interview the defendant. Chief Fifield asked the defendant why he thought the police were there. The defendant advised the police officers that he thought that they were there to investigate the marijuana plants that he was cultivating behind his home. The team executing the search warrant then arrived, the defendant was Mirandized and agreed to give a statement.
The defendant subsequently filed a motion to suppress, arguing that discovery of the marijuana plants resulted from statements he made during his interrogation while in custody prior to receiving his Miranda warnings. He sought to suppress both his pre- and post-Miranda statements as well as all derivative uses of the statements. The trial court denied the motion, finding that he was not in custody at the time that he made the statements.
We first address the defendant's argument under the State Constitution, referring to federal opinions for guidance only. State v. Jennings, 155 N.H. 768, 772 (2007). Custody entitling a defendant to Miranda protections requires formal arrest or restraint on freedom of movement of the degree associated with formal arrest. Id. In the absence of formal arrest, we 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. Id. To determine whether a reasonable person in the defendant's position would believe himself to be in custody, the trial court considers the totality of the circumstances of the encounter, including the suspect's familiarity with his surroundings, the number of officers present, the degree to which the suspect was physically restrained and the interview's duration and character. Id. Because the ultimate determination of custody requires an application of a legal standard to historical facts, it is not merely a factual question but a mixed question of law and fact. Id. We will not overturn the trial court's factual findings relevant to custody unless they are contrary to the manifest weight of the evidence. Id. at 772-73. However, we review the ultimate determination of custody de novo. Id. at 772.
The trial court concluded that the defendant was not in custody when Chief Fifield asked him why he thought the police were at his home. The court found that: (1) the defendant was familiar with his surroundings as he was at his home; (2) he was in the company of only two police officers; and (3) he was told only that he could not go back into his home because the officers needed to maintain the integrity of the area to be searched but he was not otherwise detained or physically restrained. The evidence supports these findings. Based upon these findings, we conclude that the defendant was not in custody when Chief Fifield asked him why he thought the police were at his home. Because the Federal Constitution provides the defendant no greater protection than does the State Constitution in this case, we reach the same conclusion under the Federal Constitution.
HICKS, CONBOY and LYNN, JJ., ...