Standard Procedures Do Not Defeat Miranda Custody; “No, ’Cause I Don’t Know Where This Is Going” Is Not an Unequivocal Invocation of Silence

Introduction

In State v. McCullough (Kan. Jan. 30, 2026), the Kansas Supreme Court reviewed a first-degree premeditated murder conviction arising from the shooting death of Ashley Jones, the defendant Verlee McCullough III’s on-again-off-again partner and mother of their child. After a mistrial in the first case, a second jury convicted McCullough.

The appeal centered on two Fifth Amendment/self-incrimination questions tied to McCullough’s interview at the detective bureau on the morning Jones was found dead:

  1. Pre-Miranda custody: whether McCullough was subjected to a custodial interview before police administered Miranda warnings, requiring suppression of his earlier statements.
  2. Post-Miranda invocation: whether McCullough unambiguously invoked his right to remain silent after Miranda when he responded, “No, ’cause I don’t know where this is going,” requiring the interview to end.

The court held the interview was custodial before Miranda and the district court applied the wrong framework by relying on “standard procedures.” But the court found the error harmless because the same substantive statements were admitted properly post-Miranda. The court also held McCullough’s “No, ’cause…” statement was ambiguous and therefore did not invoke the right to silence.

Summary of the Opinion

  • Custody: Under the totality of circumstances and the court’s enumerated factors, McCullough was in custody before Miranda. The district court erred by treating “standard procedures” as determinative rather than applying the holistic custody analysis.
  • Harmless error: Admission of pre-Miranda statements was constitutional error, but harmless beyond a reasonable doubt because the same key statements (e.g., that he did not leave the hotel) were repeated after Miranda and other evidence strongly supported guilt.
  • Invocation: McCullough’s post-Miranda “No, ’cause I don’t know where this is going” was ambiguous/equivocal in context and did not require police to stop questioning.
  • Disposition: Conviction affirmed; no cumulative-error analysis because only one error was found and it was harmless.

Analysis

Precedents Cited

1) Standards of review for suppression rulings

The court reaffirmed the bifurcated review used in Kansas suppression cases: factual findings are reviewed for substantial competent evidence; legal conclusions are reviewed de novo.

  • State v. Robinson, 303 Kan. 11 (2015): Used for the canonical articulation of the bifurcated standard. In McCullough, this framing enabled the court to accept largely uncontested interview facts yet independently evaluate the custody question.
  • State v. Talkington, 301 Kan. 453 (2015): Emphasized that appellate courts may reach a de novo custody conclusion after confirming the factual record is supported by substantial competent evidence. McCullough relies on Talkington to correct the district court’s legal approach while respecting factual findings.
  • State v. Aguirre, 301 Kan. 950 (2015): Cited for the same review framework in the context of an alleged invocation of rights during custodial questioning.

2) Miranda custody framework: totality-of-circumstances and enumerated factors

The core doctrinal structure in McCullough is drawn from Kansas cases that define “custodial” questioning and supply the nonexclusive eight-factor guide.

  • State v. Guein, 309 Kan. 1245 (2019): The opinion’s primary authority on (a) the rule that custodial statements require Miranda safeguards and (b) the “totality of the circumstances” inquiry, including the eight nonexclusive factors. McCullough treats the Guein factor test as the required analytical method and faults the district court for not using it.
  • State v. Lewis, 299 Kan. 828 (2014): Quoted via Guein for the definition distinguishing custodial vs. investigatory interviews. It also supplies comparative points used in McCullough—e.g., that questioning in an interrogation room at a detective bureau points toward custody, and that lack of access to a cellphone/wallet may support custody.
  • State v. Warrior, 294 Kan. 484 (2012): Like Lewis, treated detective-bureau interrogation rooms as a fact that tends to indicate custody. The court uses Warrior to place McCullough’s station-house setting within established Kansas patterns.
  • State v. Bridges, 297 Kan. 989 (2013): Cited as a comparator where a 30-minute interview suggested a noncustodial encounter; McCullough uses this to show duration alone is not dispositive (McCullough was questioned only ~26 minutes pre-Miranda), and custody turns on the entire situation, not one factor.

3) Harmless constitutional error

  • State v. Swindler, 296 Kan. 670 (2013): Reaffirmed that when constitutional error occurs, the beneficiary of the error must prove harmlessness beyond a reasonable doubt—no reasonable possibility the error contributed to the verdict.
  • State v. Ward, 292 Kan. 541 (2011), cert. denied 565 U.S. 1221 (2012): Cited through Swindler as the foundational Kansas harmlessness standard for constitutional errors.
  • State v. Pepper, 317 Kan. 770 (2023): Cited to emphasize that even grave crimes may be proved with circumstantial evidence and logical inferences. In McCullough, this supports the conclusion that the State’s largely circumstantial proof was still “strong” for harmlessness purposes.
  • State v. Walker, 308 Kan. 409 (2018): Used to reject the argument that a prior hung jury necessarily shows the State’s case is weak; the reviewing court must consider the entire record.

4) Invocation of the right to remain silent: clarity, context, and officer perspective

  • State v. Flack, 318 Kan. 79 (2024): Central authority for the rule that an invocation of silence must be unambiguous and unequivocal, and that context matters. It also frames the “reasonable officer” lens: clarity is assessed from what a reasonable officer would understand, not the suspect’s subjective intent.
  • State v. Younger, 320 Kan. 98 (2025): Cited for the “no retroactive ambiguity” principle—later statements cannot be used to cast doubt on whether an earlier invocation was clear. McCullough notes this guardrail while still finding the invocation unclear based on the contemporaneous context.
  • State v. Walker, 276 Kan. 939 (2003): Used for the proposition that officers are not constitutionally required to ask clarifying questions after an ambiguous reference to silence/counsel, even though clarification may be good practice.
  • Burno v. United States, 953 A.2d 1095 (D.C. 2008): Persuasive authority supporting the idea that suspects may be willing to answer some questions but not others, creating ambiguity about whether they wish to end all questioning.

Legal Reasoning

A) “Standard procedure” is not the custody test

A key doctrinal move is the court’s rejection of the district court’s reasoning that the encounter was noncustodial because officers were following their “standard procedures.” The Supreme Court labeled that reasoning a non sequitur: a practice may be routine and still be custodial if it objectively restrains freedom in a significant way. The constitutionality of an interview turns on the totality of the circumstances and whether a reasonable person would feel free to terminate the encounter—not on whether police did what they usually do.

B) Why the pre-Miranda portion was custodial under the totality

Applying the Guein framework, the court emphasized a constellation of restraint-like conditions:

  • McCullough was placed in the back of a marked police SUV at the crime scene, unable to exit without outside assistance.
  • Police took his phone, wallet, and at some point took possession of his vehicle—reducing practical ability to leave.
  • He was driven to a nonpublic underground garage and escorted by uniformed, armed officers into the bureau and to an interview room.
  • He had to wait ~50 minutes for a detective; testimony established he would not have been allowed to leave until he spoke with a detective.
  • In the interview room, the detective (armed, though in “casual uniform”) positioned himself between McCullough and the exit while questioning continued.

Although some facts cut against custody (no handcuffs, nonaggressive tone, told he was a “witness,” only ~26 minutes of pre-Miranda questioning), the court held the overall environment was sufficiently restrictive that a reasonable person would not feel free to end the interview and leave. Miranda warnings were therefore required before questioning.

C) Harmlessness: the “duplicate admission” and record-strength rationale

After finding a Miranda violation, the court applied Swindler/Ward harmless-error review and concluded the error did not affect the verdict beyond a reasonable doubt. Two themes drove that conclusion:

  1. Duplication: The key pre-Miranda statement (that he stayed at the hotel all night) was repeated after Miranda, and the court found no error in admitting the post-Miranda statements. Thus, the jury properly heard the same contradiction (statement vs. surveillance) even without the pre-Miranda portion.
  2. Independent evidence strength: The State presented surveillance evidence tracking the car, a figure approaching the home around the relevant time, a motive narrative (texts/argument and threatened move to Texas), and no sign of forced entry with McCullough having access to the home—circumstantial but strong evidence under Pepper.

The court also used State v. Walker (2018) to treat the earlier hung jury as relevant but not determinative of harmlessness.

D) Why “No, ’cause I don’t know where this is going” did not invoke silence

Under Flack, an invocation must be unambiguous and unequivocal, evaluated in context from the standpoint of a reasonable officer. The court treated McCullough’s response as susceptible to multiple reasonable interpretations:

  • Uncertainty/need clarification (the detective’s understanding): McCullough may have been expressing confusion about the direction of questioning rather than refusing to speak.
  • Topic-limited refusal: The detective asked about “the whole Dion[e] thing” and “comings and goings,” and McCullough’s “No” could reasonably have meant “not about that subject,” not “I’m done talking.”
  • Total refusal: The defense’s view—“No” as a complete refusal with an explanatory “because.”

Because at least more than one interpretation was reasonable, the statement was ambiguous. Under State v. Walker (2003), police were not required to ask clarifying questions, so continuing the interview did not violate the right to remain silent.

Impact

  • Trial courts: McCullough underscores that custody determinations must be anchored in the totality-of-circumstances analysis (the Guein factors) and not in generalized findings that officers followed routine practice. This is a direct methodological correction: “standard procedure” cannot substitute for the constitutional test.
  • Law enforcement practices: The decision signals that transporting a person to a station through nonpublic access points, removing phones/wallets/keys, controlling movement, and creating an extended waiting period can collectively create custody even absent handcuffs or overt aggression. Agencies may respond by (a) administering Miranda earlier, (b) more clearly advising that the person is free to leave, and/or (c) avoiding restraint-like logistics when the intent is truly investigatory.
  • Invocation jurisprudence: The ruling reinforces Kansas’ strict requirement for a clear invocation and cautions that statements expressing uncertainty (“I don’t know where this is going”) or subject-specific reluctance may not suffice. Defense counsel will likely respond by emphasizing that clients must clearly state “I want to remain silent” or “I don’t want to answer any questions.”
  • Harmless-error litigation: The case provides a blueprint for finding Miranda violations harmless when the same substance is admitted through untainted post-Miranda statements and when the record contains strong independent circumstantial evidence.

Complex Concepts Simplified

  • Custodial vs. investigatory interview: An investigatory interview is fact-gathering where a reasonable person feels free to leave. A custodial interview is one where the person is effectively under police control (formally arrested or restrained in a significant way). Miranda is required only for custodial questioning.
  • “Totality of the circumstances”: Courts do not use a single fact (like being at a police station) to decide custody. They weigh all circumstances together—how the person got there, whether they could leave, who controlled movement, and what the environment communicated.
  • Invocation must be unambiguous: To stop questioning, a suspect must clearly communicate they are invoking the right to remain silent. If a statement can reasonably mean different things, police may continue.
  • “Scrupulously honored”: Once a clear invocation occurs, police must stop questioning; they cannot badger the suspect into talking.
  • Harmless constitutional error: Even if a constitutional mistake occurred, an appellate court will affirm if the State proves beyond a reasonable doubt the mistake did not affect the verdict—often because the same evidence came in properly anyway, or because other evidence independently supports guilt.

Conclusion

State v. McCullough contributes a pointed clarification to Kansas Miranda doctrine: courts must decide custody using the established totality-of-circumstances framework, and the label of “standard procedure” does not resolve the constitutional question. On the merits, the court held McCullough was subjected to custodial questioning before Miranda, but affirmed because the error was harmless given properly admitted post-Miranda statements and strong circumstantial proof. Finally, the court reinforced a demanding invocation rule—McCullough’s “No, ’cause I don’t know where this is going” was too ambiguous, in context, to require police to stop questioning.