This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota,



Gilbert Andrew Becker,


Filed March 3, 1998

Affirmed as modified.

Lansing, Judge

Ramsey County District Court

File No. K496741

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Susan Gaertner, Ramsey County Attorney, Michael A. Dees, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)

John M. Stuart, State Public Defender, Bradford S. Delapena, Assistant Public Defender, Suite 600, 2829 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

Considered and decided by Lansing, Presiding Judge, Crippen, Judge, and Kalitowski, Judge.



In an appeal from conviction of third-degree burglary in violation of Minn. Stat. § 609.582, subd. 3 (1996), Gilbert Becker challenges the admissibility of his confession and the partial denial of jail credit. We affirm the admissibility of the confession but modify to reflect the proper jail credit.


Gilbert Becker and his roommate, Troy Paulson, were suspects in burglaries in Roseville and Eagan. Police executed a search warrant at a residence shared by Becker and Paulson and took a statement from Paulson implicating Becker. Eagan police learned that Becker was moving from the house but that he could be found making a delivery in Bloomington as part of his job with a delivery service. They called an officer closer to the delivery location, Officer Bork, and asked him to locate Becker. Officer Bork testified that he was instructed to arrest Becker.

Officer Bork found Becker's car at a Bloomington shopping mall and, when Becker came out from making his delivery, informed Becker he was under arrest for probable cause for burglary. Officer Bork handcuffed Becker, searched his person, and put him in the back seat of his squad car.

In a very short time, the two Eagan officers who had requested the stop arrived at the mall. Sergeant Johnson told Bork to meet him and the other officer in another area of the parking lot. Bork drove his car over to a parking space almost immediately beside the unmarked van in which Sergeant Johnson and Officer Matteson had arrived. One empty parking space extended between the two vehicles, with a snowbank behind both cars. Sergeant Johnson asked Becker to get out of the squad car, took his handcuffs off, and told him he was not under arrest.

Standing outside the unmarked van, Sergeant Johnson and the other officer asked Becker to make a statement about the burglary. Both officers were in plain clothes. Sergeant Johnson estimated that this conversation lasted about 15 minutes before the cold February weather forced them into the van. At no point was Becker given a Miranda warning. Inside the van, the officers taped a formal statement from Becker, who admitted his involvement.

Becker testified at the omnibus hearing, conceding that his handcuffs were removed and that he was told he was not under arrest. But he claimed that Sergeant Johnson told him he could either talk there or they could bring him downtown to talk.

The district court denied Becker's motion to suppress the statement. Becker waived his right to a jury trial and agreed to a court trial based on stipulated facts to expedite appellate review of the pretrial order. The district court found Becker guilty and stayed imposition of sentence on probationary conditions and 15 days in the workhouse. The county gave Becker three days of jail credit, rejecting his request for six days' credit.



The primary issue on appeal is whether Becker was in custody during his questioning by police outside the Bloomington mall and therefore whether his statement, taken without a Miranda warning, should be suppressed. Police are required to give a Miranda warning only if an individual is being questioned while in custody. E.g., United States v. Griffin, 922 F.2d 1343, 1347 (8th Cir. 1990). For purposes of the Fifth Amendment and Miranda, the test to determine custody is whether a reasonable person under the circumstances would believe that he or she was in police custody of the degree associated with formal arrest. State v. Champion, 533 N.W.2d 40, 43 (Minn. 1995).

The district court's findings of fact on custody status are reviewed under a clearly erroneous standard. State v. Miller, No. CX-96-2434, 1998 WL 10740, at *8 (Minn. Jan. 15, 1998) (citing State v. Hince, 540 N.W.2d 820, 823 (Minn. 1995)). An appellate court makes an independent review of the district court's determination regarding custody and the necessity of a Miranda warning. Id.

The district court concluded that Becker's statement was not taken in violation of Miranda. The court relied on the facts that Sergeant Johnson removed Becker's handcuffs and told him he was not under arrest. The court rejected the defense argument that moving Bork's car to a more remote part of the parking lot, where Becker could be hemmed in between the two vehicles and a snowbank, transformed the situation into a custodial detention. The police explained that they moved the cars so that Bork would not be detained directly outside the place of his business delivery.

The parties cite no cases in which a suspect has been placed under formal arrest, then informed he is not under arrest, then questioned without a Miranda warning. There is no doubt that Becker agreed to talk to police knowing that he was the focus of a burglary investigation and that he could be re-arrested. But a person is not in "custody" merely because he is questioned in a coercive atmosphere or is the focus of a police investigation. Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 714 (1977); Beckwith v. United States, 425 U.S. 341, 347-48, 96 S. Ct. 1612, 1616-17 (1976). The relevant inquiry is how a reasonable person in the defendant's position would have understood his situation. Berkemer v. McCarty, 468 U.S. 420, 442, 104 S. Ct. 3138, 3151 (1984).

Becker argues that Sergeant Johnson's removing the handcuffs and telling him he was not under arrest did not undo the formal arrest. We disagree. Telling a suspect he is not under arrest and that he may terminate the interview is "[t]he most obvious and effective means of demonstrating that a suspect [is not in custody]." Griffin, 922 F.2d at 1349. Becker was plainly told he was not under arrest, although he was apparently not told he could refuse to answer questions. Informing a suspect he is not under arrest is a significant factor supporting a finding that the suspect was not in custody, although it is not dispositive. Davis v. Allsbrooks, 778 F.2d 168, 171-72 (4th Cir. 1985).

Our supreme court has placed considerable weight on police officers informing the suspect that he is not under arrest or that he is free to leave. In a case in which police stopped and frisked defendant at the scene of several recent rapes and asked him questions without giving him a Miranda warning, the court stated:

If after learning defendant's identity and address the police had not made it clear to him that he was free to leave, then we might have to hold that the police had to give defendant a Miranda warning before questioning him. However, since the police told defendant he was not under arrest and that he was free to leave, defendant's decision to talk and his decision to be photographed were voluntary decisions on his part, and * * * the giving of a Miranda warning was [not] applicable.

State v. Miller, 316 N.W.2d 23, 27-28 (Minn. 1982) (emphasis in original).

Becker was told he was not under arrest, a statement certainly reinforced by the removal of his handcuffs. He was questioned in a public parking lot for a period of about 15 minutes before entering the unmarked van and giving a taped statement that is nine pages long. Thus, neither the place nor the length of the interrogation points toward a custodial situation. See generally Griffin, 922 F.2d at 1348-49 (discussing place and length of questioning as affecting custody determination). We reject Becker's argument that being in a one-car parking space was a significant restraint on his freedom of movement. See id. at 1349 (discussing restraints on movement as one "indicia of custody"). The other "indicia of custody" identified by the Eighth Circuit in Griffin are also generally lacking, particularly given the fact that Becker left on his own after giving the statement and was not arrested. See id. Finally, we note that there is no objective indication that police manipulated Becker's custody status to avoid the Miranda requirement.

We acknowledge the closeness of the custody issue in this case. But we conclude that even if we were to apply a standard of independent review, as the United States Supreme Court has recently applied in federal habeas corpus review, we must affirm the admission of Becker's statement. See Thompson v. Keohane, 116 S. Ct. 457, 465 (1995) ("in custody" determination is mixed question of fact and law reviewed independently in federal habeas review of state court criminal judgments).


Becker argues that he was entitled to six rather than three days of jail credit. The PSI indicates that Becker was in custody for parts of six days before trial. The supreme court has held that a defendant is entitled to full jail credit for both the first and last days of confinement, even if only a part of those days is spent in custody. State v. Jackson, 557 N.W.2d 552, 553-54 (Minn. 1996). Under Jackson, therefore, Becker is entitled to six days of jail credit, and his sentence is modified to reflect that credit.

Affirmed as modified.