a pretty friendly encounter, with the cops not showing much force or intimidation. Still,
it's hard to say whether someone would reasonably feel at this point justified and correct
in telling the police that this interview has to stop, and that the person is just going to
drive away; especially before the sobriety check is performed. Thus, it's a close call.
However, as D is out of his car, speaking to police, and about to be subject to a sobriety
test, I would conclude that this is a custodial situation as a reasonable person would not
feel free to terminate the questioning and leave.
b. Interrogation: An interrogative question is one that is reasonably likely to elicit an
incriminating response. This is a pretty close call as well. On one hand, the officers
had no indication that the gun was criminally possessed, and thus a mere question
about it may not be enough to reasonably expect an incriminating response. On the
other hand, if the gun was criminally possessed, then a truthful response would be
incriminating. However, because the officer questioned D about the gun without any
suspicion at all of it being stolen, I would find this to be a non-interrogative question.
I.e., if they knew that there was a stolen gun around, and then they asked, that would be
more likely to be an incriminating response. Here, this just seems like the officers
inquiring about a gun in the car without any suspicion whatsoever. Thus, Dan's
statement should be admissible. It also appears that even if he had denied the
ownership of the gun, the bit about him admitting to the crime was completely
volunteered. I.e., the cops did not ask him whether he stole the gun. They asked him if
he owned it. Thus, D's answer could have been "No." Instead, and completely
unprompted, D volunteered that he stole the gun.
ii) CONCLUSION: This was likely a custodial situation. The situation probably not
interrogative, but it may have been. Even if it was not an interrogative scenario, D's
statement that "I stole the gun" was not in response to any questioning by the police,
and is voluntary and admissible. If it is found to be an custodial interrogative situation,
the only part of the statement that will be inadmissible will be the answer to the
policeman's question: "No."
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