4 General Situations That May Constitute Custody in Texas

In Dowthitt v. State, 931 S.W.2d 244 (Tex. Crim. App. 1996), the appellant was interviewed by police detectives for approximately twelve hours before he first admitted he was present during the commission of the murders the police were investigating. Dowthitt, 931 S.W.2d at 256. The Court of Criminal Appeals held that "custody" began immediately after appellant's pivotal admission because it established probable cause to arrest appellant and a "reasonable person [in appellant's position] would have realized the incriminating nature of the admission." Id. at 257. Further, in determining when "custody" began, the court considered the long time period of the interview and the police's exercise of control over the appellant by accompanying him to the restroom and ignoring his two requests to see his wife. Dowthitt, 931 S.W.2d at 257. The Court of Criminal Appeals in Dowthitt outlined at least four general situations that may constitute custody: (1) when the suspect is physically deprived of his freedom of action in any significant way, such as being placed in a police vehicle and taken to the station house for questioning; (2) when a law enforcement officer tells the suspect he cannot leave; (3) when law enforcement officers create a situation that would lead a reasonable person to believe his freedom of movement is significantly restricted; (4) when there is probable cause to arrest and law enforcement officers do not tell the suspect he is free to leave. Id. at 255. In the first through third situations, the restriction on freedom of movement must amount to the degree associated with an arrest as opposed to an investigative detention. Id. The ultimate inquiry is whether there was a formal arrest or restraint on freedom associated with a formal arrest. Bates v. State, 15 S.W.3d 155, 158 (Tex. App.-Texarkana 2000, pet. ref'd). With respect to the fourth situation, the officer's knowledge of probable cause must be manifested to the suspect. Dowthitt, 931 S.W.2d at 255. Such manifestation can occur if information sustaining probable cause is related by the officer to the suspect or by the suspect to the officer. Id. Moreover, situation four does not automatically establish custody. Id. Rather, custody is established if the manifestation of probable cause, combined with other circumstances, would lead a reasonable person to believe he is under restraint to the degree associated with an arrest. Id.