Handcuffed? Cops point guns at you? You're not in custody!

A divided Appeals Court panel ruled last month that handcuffed a man and placed him face down on his kitchen floor by a heavily armed SWAT team was not "in custody" and did not have to be read his Miranda rights before being questioned a bit later by armed officers.

The SWAT team left and the handcuffs were removed from the man, Brian Kilgore, before the questioning occurred, but he was not free to leave his house at the time and was ordered to stay in the living room when he tried to leave, according to the panel. 

"A seizure, as compared to custody, is limited in duration and scope, and does not have the same element of coercion," District 2 Court of Appeals Judge Lisa S. Neubauer wrote, upholding the ruling by Sheboygan County Circuit Judge Terence T. Bourke that Kilgore was not in custody when he was questioned.

Kilgore eventually was convicted of second-degree sexual assault for drugging and raping a woman in a home he shared with another man. The search warrant authorized police to both search the home and get DNA samples from both Kilgore and his roommate to compare  to DNA found on the victim.

Neubauer was joined in her opinion by Appeals Judge Mark D. Gundrum. Appeals Judge Paul F. Reilly, while concurring that the search warrant was valid, dissented from the finding that Kilgore was not in custody. 

Neubauer: Kilgore wasn't in custody, he was just seized.

"I look at the objective facts from the record and see the scene of a 'police dominated atmosphere' in which a reasonable person would not have felt at liberty to terminate the interrogation and leave," he wrote in his partial dissent.  

Neubauer said police questions focused first on Kilgore's roommate, who Sheboygan Police Detective Tamara Remington said during a suppression hearing was the main suspect in the case.

Remington also testified that Kilgore's interrogation took "a very long time."  During it, he was very talkative and "seemed all too eager to implicate (the roommate) as best he could," Neubauer wrote. In addition, the questioning occurred in Kilgore's own home and not in the "inherently coercive" surroundings typical of an in-custody-interrogation, the judge said. 

Kilgore was not allowed to leave, but he was not in custody.

While Kilgore was not free to leave, police did not tell him that, Neubauer wrote. In addition, Kilgore could leave "when the officers were done, i.e., he was not under arrest, but rather, temporarily detained," she said.

Reilly, in his partial dissent, noted that the search warrant included Kilgore as a suspect and that during the suppression hearing, Remington "changed her tune" from Kilgore being a suspect to Kilgore being a potential witness. 

"In my opinion, it is illogical for the majority to agree that probably cause existed that Kilgore had drugged and raped (the victim)...while at the same time accepting Remington's revisionist testimony that Kilgore was never a suspect, only a 'potential witness,'" he wrote.

The warrant was executed by Remington and 11 other officers, including a SWAT team, he said. After the SWAT team left, at least five armed officers remained. Police never told Kilgore whether he was or was not under arrest, that any cooperation he gave was voluntary, or that he was free to leave, Reilly said.

"I place emphasis on the on the fact that Kilgore was thrown to the floor with M4 rifles pointed at his head and shackles placed on his arms, that at least five armed officers remained in the house after the SWAT team vacated, on Remington's admission that Kilgore was not free to leave during her interrogation, that Remington was not going to take the buccal swab of Kilgore until she finished her interrogation as she knew that as soon as the buccal swab was taken that Kilgore would be free to leave, and that when Kilgore tried to leave the living room he was ordered to stay where he was," Reilly wrote. 

"The totality of the circumstances demonstrate that the police aggressively engaged in executing a search warrant in Kilgore's home and dominated the scene for the entire time that Kilgore was questioned," he said. ​​