Cop’s disclaimer counted out

How much does a cop’s disclaimer count when deciding whether a suspect is actually in custody?

Not much in a recent 4th Circuit case.

FBI agents, some 23 strong, burst into the Chesapeake home of Willoughby Warren Colonna IV, a/k/a "maryanna," in 2004 after detecting “preteen sex pics” on Colonna’s home computer. The agents awakened Colonna’s younger sister and his parents, who said he was asleep in the third-floor attic. The agents kicked open the bedroom door and ordered Colonna downstairs at gunpoint. Two agents took Colonna out to an FBI car and interviewed him for three hours, after which he signed a statement taking total responsibility for any material found on his computer.

But the agents told Colonna he was not under arrest, and in fact he was not arrested on child pornography charges until a year and 10 months after the search.

Based on the lack of Miranda warnings, the 4th Circuit reversed Colonna’s conviction.

Writing for the court in U.S. v. Colonna, Judge Roger Gregory said the trial court erred in finding there was no custodial interrogation because an FBI agent specifically told Colonna he was not under arrest and the interview did not end with his arrest.

There “is no precedent for the contention that a law enforcement officer simply stating to a suspect that he is ‘not under arrest’ is sufficient to end the inquiry” into custody, Gregory wrote.

A “reasonable man in Colonna’s position would have felt that his freedom was curtailed to a degree associated with formal arrest,” and “his statements should have been suppressed,” the 4th Circuit panel concluded.