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Custody — Terry-type Investigation

State v. Dale Gruen, 218 Wis. 2d 581, 582 N.W.2d 728 (Ct. App. 1998)
For Gruen: Scott F. Anderson


… (W)hether or not Gruen was being detained pursuant to a Terry stop, or had been arrested for Fourth Amendment purposes, is not the determinative consideration. The only important inquiry is whether, for Fifth amendment purposes, he was “in custody.” To determine whether a person is in custody for Fifth amendment purposes:…

An examination of the totality of the circumstances includes such relevant factors as the defendant’s freedom to leave the scene; the purpose, place and length of the interrogation; and the degree of restraint. See State v. Leprich, 160 Wis.2d 472, 477, 465 N.W.2d 844, 846 (Ct. App. 1991); Swanson, 164 Wis.2d at 446-47, 475 N.W.2d at 152. In exploring the degree of restraint, courts have also considered as relevant factors: (1) whether the defendant was handcuffed; (2) whether a gun was drawn on the defendant; (3) whether a Terry frisk was performed; (4) the manner in which the defendant was restrained; (5) whether the defendant was moved to another location; (6) whether the questioning took place in a police vehicle; and (7) the number of police officers involved. The fact that a defendant was being temporarily detained pursuant to Terry v. Ohio, and §968.24, Stats., is obviously a relevant consideration, but is not by itself dispositive. See Pounds, 176 Wis.2d at 322, 500 N.W.2d at 377. After considering these factors, in the context of the totality of the circumstances, we conclude that Gruen was not in custody for the purposes of Miranda.


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