When Is a Person In ''Police Custody'' In Texas ?

The court of criminal appeals has outlined the following four general situations which may constitute custody for purposes of article 38.22: (1) when a suspect is physically deprived of his freedom of action in any significant way; (2) when a law enforcement officer tells a suspect he cannot leave; (3) when law enforcement officers create a situation that would lead a reasonable person to believe his freedom of movement has been significantly restricted; (4) when probable cause to arrest exists and law enforcement officers do not tell the suspect he is free to leave. See Dowthitt, 931 S.W.2d at 255 (citing Shiflet v. State, 732 S.W.2d 622, 629 (Tex. Crim. App. 1985)). As these four situations illustrate, the initial custody determination under the Supreme Court's Stansbury test depends on the objective circumstances of the interrogation, not the subjective views of the interrogating officer or the person being questioned. See Stansbury, 511 U.S. at 325 (recognizing that even an officer's clear statement that person being interrogated is prime suspect is not dispositive of custody issue because some suspects are free to come and go until police decide to make arrest); Rodriguez v. State, 939 S.W.2d 211, 216 (Tex. App.-Austin 1997, no pet.) (op. on reh'g) (same). a person need not be under formal arrest to be considered subject to custodial interrogation. See Melton v. State, 790 S.W.2d 322, 325 (Tex. Crim. App. 1990). Determining whether a person is in custody in a given situation is a question to be determined on an ad hoc basis, after considering all the objective circumstances. See Dowthitt, 931 S.W.2d at 255. That questioning occurs at a stationhouse does not, in and of itself, constitute custody. See id. That an interrogation starts out being noncustodial in nature does not mean that custody cannot arise later as a result of police conduct during the encounter. Police conduct during an encounter can cause an initially consensual inquiry to escalate into custodial interrogation. See id.