WI: Def’s “custody” during raid was limited to getting DNA sample

Defendant’s house was raided with him in it, but he was not arrested and his “custody” status was limited to getting a buccal swab under the warrant. He was not in custody, albeit Summers permitting it, when he was talking. The warrant was issued on probable cause. State v. Kilgore, 2016 Wisc. App. LEXIS 307 (May 18, 2016):

P34 Considered in proper context, Kilgore’s inability to leave while the police obtained a buccal swab of his cheek and completed their search of the residence did not transform that temporary detention into custody. The circumstances surrounding the encounter—in the afternoon, in Kilgore’s living room, without handcuffs or guns drawn, the SWAT team gone, the absence of threats or promises of leniency, the focus of the questions on Peters, and the nonaccusatory nature of the questioning—would not have led a reasonable person to believe that he or she was being restrained to the degree associated with formal arrest. There are no facts indicating the officers would continue questioning until Kilgore provided the answers to questions they sought. Indeed, after the police completed their search, Kilgore was free to go about his business. See Czichray, 378 F.3d at 827 (noting that one factor a court may consider is whether the suspect was placed under arrest at the termination of questioning). The circuit court did not err in finding that, under the totality of the circumstances, Kilgore was not in custody.