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BENCH BLOG: Court weighs in on difference between custody, detention

By: Jean DiMotto//June 14, 2016//

BENCH BLOG: Court weighs in on difference between custody, detention

By: Jean DiMotto//June 14, 2016//

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Judge Jean DiMotto retired in 2013 after16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also is of counsel with Nistler Law office SC. She can be reached at
Judge Jean DiMotto retired in 2013 after 16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also is of counsel with Nistler Law office SC. She can be reached at [email protected].

A sexual-assault case provided the context for the Court of Appeals to distinguish a formal arrest from detention in one’s home during the execution of a search warrant.

In both circumstances, the target of the legal action is not free to leave. Yet one is a seizure triggering mandatory Miranda warnings and the other is not.

The court answers the question: What’s the difference between detention and custody when it comes to police questioning?

The crime

Brian Kilgore lived with David Peters, and the sexual assault in question in this case took place in their Sheboygan home. The victim, who knew Peters, was drugged by one or both of the men and awoke about 10 hours later mostly naked on Peters’ bed with pain and bruises to her genitals and buttocks.

The victim was dazed, confused and vomiting, but managed to call a friend to take her to the hospital, where a rape kit was used. Her toxicology results revealed benzodiazepines and zolpidem in her system, both of which have sedative effects.

She told the police who came to the hospital that Peters had shown her needles he used for heroin and that he’d mentioned that he had both heroin and cocaine at the residence.

The search warrant

Detective Tamara Remington obtained a search warrant for the residence, seeking to recover a comforter, drugs, the victim’s vomit and DNA samples from Peters and Kilgore. She considered Peters the target of the warrant, but added a request for DNA from Kilgore to rule him out as a suspect.

The warrant was executed mid-afternoon four days after the assault. Peters was well known to the police as a frequent criminal suspect whom they considered dangerous, so a SWAT team first surrounded the residence. Still, the team entered with Kilgore’s consent after hearing a voice at the door.

The heavily armed SWAT officers placed Kilgore facedown on the kitchen floor and held him at gunpoint. After the house was cleared of any imminent danger, the SWAT team left. The remaining four officers, two of whom were detectives, had their handguns holstered.

Kilgore was directed to a chair in his living room. Before taking the warrant-authorized buccal swab, Remington talked extensively with Kilgore in an attempt to find out about Peters. She was standing several feet from Kilgore but not over him. He was not handcuffed and no threats or promises of leniency were made. Although he was not free to leave, no one had told him this. No Miranda warnings were given.

Remington testified that Kilgore was “very talkative,” “very cooperative, helpful” and “cordial,” even offering things “spontaneously.” He volunteered information about Peters’ whereabouts that afternoon. He incriminated Peters with statements about his criminal and antisocial lifestyle.

He did not object to giving a DNA sample, saying he had never touched the victim and that his “DNA would not be found on her or in her.”

Suppression hearing

After Kilgore was charged with second-degree sexual assault, he moved to suppress statements he made during the execution of the warrant. Sheboygan County Circuit Judge Terence Bourke denied the motion.

He noted that detention during the execution of a search warrant is not a per se in-custody situation.

In Judge Bourke’s analysis, Kilgore’s situation changed once the SWAT team had left and Kilgore was sitting uncuffed in the living room with Remington. The questioning mainly concerned Peters, and Kilgore was very cooperative, thus he was not “intimidated by the situation.”

Judge Bourke concluded that a reasonable person would think this was a temporary detention for which Miranda warnings were not required before police questioning.

Appellate majority decision

Lisa Neubauer, chief judge of the court of appeals, was the author of the court’s opinion.

She began with a summary of custodial-interrogation law, identifying what considerations a court may take into account. Those include: whether a suspect had freedom to leave; the purpose, place and length of questioning; the extent to which a suspect was restrained and the use of things such as handcuffs, drawn guns and Terry frisks; and the number of officers who were present.

She noted that Fifth Amendment law does not forbid questioning during the execution of a search warrant or the proffering of incriminating statements. Rather, it forbids tactics that compel individuals to incriminate themselves; in other words, tactics that would “create a coercive custodial environment that is the functional equivalent of a formal arrest.”

Judge Bourke aptly determined that a coercive custodial environment was lacking once the SWAT team had left. The majority noted the significance of the questioning occurring in Kilgore’s own home.

And while Kilgore was not free to leave during the search and buccal swab, “he would be when the officers were done, i.e., he was not under arrest, but rather, temporarily restrained.”

While a seizure and custody are both “interferences with one’s liberty,” a seizure is limited in duration and scope and lacks the element of coercion.

The totality of circumstances in Kilgore’s encounter with police support the conclusion that it was a temporary detention — the time of day, the living room, the lack of drawn guns and handcuffs, the absence of the SWAT team, the lack of threats or promises, the centering of the questioning on Peters and the questions’ non-accusatory nature.

Thus, Miranda warnings were not required and his statements were admissible.


Judge Paul Reilly opined that it was a “police-dominated atmosphere.” He emphasized Remington’s affidavit in support of her application for a search warrant over her testimony at the suppression hearing.

The majority responded that he not only discounted her hearing testimony but also Judge Bourke’s findings of fact and analysis. “We are not free to reweigh the evidence or reassess a witness’s credibility.” Further, “Our duty is to search the record for evidence that supports findings the circuit made. …”


Chief Judge Neubauer is a formidable appellate judge. She has issued yet another well-marshaled, clearly written opinion.

It summarizes the law on custodial interrogation and the Fifth Amendment, and then applies considerations that are in play when determining whether a person is simply detained or actually arrested at the time of police questioning.

As the opinion explains, it is not merely a matter of someone’s not being free to leave. Rather, the context and circumstances of that constraint, particularly coercion, influence the final reckoning.

Thankfully this opinion is recommended for publication because it is an excellent aid to trial judges and the criminal bar. Law enforcement officers will benefit from it as well.


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