State v. Jessop

2023 UT App 140
THE UTAH C OURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
JUSTIN R ICHARD JESSOP ,
Appellant.
Opinion
No. 20210544-CA
Filed November 16, 2023
Second District Court, Ogden Department
The Honorable Michael D. DiReda
No. 191902276
Emily Adams, Freyja Johnson, Melissa Jo Townsend,
and Scott D. Goodwin, Attorneys for Appellant,
assisted by law students
Jared Erekson and Rachel Johnson1
Sean D. Reyes and Natalie M. Edmundson,
Attorneys for Appellee
JUDGE GREGORY K. O RME authored this Opinion, in which
JUDGES R YAN D. TENNEY and JOHN D. LUTHY concurred.
ORME, Judge:
¶1 	Justin Richard Jessop appeals the district court’s denial of
his motion seeking dismissal of the two charges against him for
assault against a peace officer, arguing that the court erred in
holding that State v. Tiedemann, 2007 UT 49, 162 P.3d 1106, does
not apply where the possibly exculpatory evidence never came
into existence. He also appeals the court’s denial of his motion to
suppress evidence gathered from police questioning that took
1. See Utah R. Jud. Admin. 14-807 (governing law student practice
in the courts of Utah).

State v. Jessop
20210544-CA 	2 	2023 UT App 140
place in the hospital after he was shot by police, arguing that the
court incorrectly held that he was not in custody at the time of
questioning. Because we conclude that Tiedemann does not apply
to evidence that never existed, and because we agree that Jessop
was not in police custody when he was first interviewed at the
hospital, we affirm.
BACKGROUND2
¶2 	Jessop and Lily3 were romantically involved. One night in
early June 2019, Lily reported to police that, during a heated
argument, Jessop retrieved a handgun, pointed it at her head, and
pulled the trigger. But because there was not a live round in the
gun’s chamber, the gun did not go off. Jessop then turned the gun
on himself and pulled the trigger. For the same reason, the gun
again did not fire. He told Lily that if she called the police there
would be a “blood bath” and, at one point, he threatened to kill
her. Understandably, Lily fled the house and called the police, but
Jessop continued to send her text messages. Following Lily’s flight
from the house, Jessop “fired a .40 caliber handgun” and “a 9mm
handgun” from his front porch and sent Lily a text message
saying, “I’m gonna go bad on these fuckers.”
¶3 	Based on Lily’s report, the police understood Jessop to be a
restricted person who could not legally possess firearms. Officers
from the local SWAT team were called, but they discovered that
Jessop had left the house. Police contacted Jessop via his cell
phone and requested that he turn himself in. He refused, and the
police began searching for him. Though refusing to turn himself
2. “In reviewing the trial court’s ruling on a motion to suppress,
we recite the facts in the light most favorable to the trial court’s
findings.” State v. Fullerton, 2018 UT 49, ¶ 4 n.1, 428 P.3d 1052
(quotation simplified).
3. A pseudonym.

State v. Jessop
20210544-CA 	3 	2023 UT App 140
in, he continued to talk with a police negotiator, and the police
were able to “ping” his phone and direct officers to Jessop’s
approximate 	location. 	But 	they 	were 	unable 	to 	find 	him.
Subsequently, two Weber County Sheriff deputies (Deputy 1 and
Deputy 2) were assigned to assist in finding Jessop, and they
received updates regarding Jessop’s location.
¶4 	After responding to multiple ping locations where Jessop
was said to be without finding him, the deputies responded to an
updated location and spotted a lone man walking down the street,
whom Deputy 1 identified as Jessop. Deputy 1 later recounted to
an investigator that on recognizing Jessop, “He opened his door,
got out of the vehicle before it was put in park, and started giving
commands to Mr. Jessop.” But Jessop did not stop or show both
of his hands, as instructed, and he began to run down a rugged
trail.
¶5 	Following Deputy 1’s identification of Jessop, Deputy 2
exited his vehicle and “attempted to send his dog after [Jessop]
but the dog did not see him and started going the other way.”
Disregarding his dog, Deputy 2 returned his attention to Jessop
and later indicated that he saw Jessop’s “cell phone being held to
his head with one hand” while “[t]he other hand [was] hidden
from [Deputy 2’s] view.” Both deputies indicated that they
continued to command Jessop to “show your hands,” to which
Jessop responded that he would not and at one point stated, “Fuck
you.” Following this exchange, the deputies recounted that Jessop
“turn[ed] and present[ed]—and point[ed] a handgun at” them. At
this realization, Deputy 2 “fired two rounds at [Jessop], and
realizing that he had no cover, dropped to the ground and
continued to fire at [Jessop] until [he] was no longer a threat.”
Deputy 1 also saw Jessop point a gun in his direction and fired his
weapon at Jessop.
¶6 	During the entirety of this encounter, both deputies were
wearing body cameras, but neither deputy activated his body

State v. Jessop
20210544-CA 	4 	2023 UT App 140
camera until “shortly after” they fired at Jessop. As recounted in
a medical report, Jessop sustained multiple serious injuries from
being shot “once in the back, once in the posterior hip region, once
in the face and once in the wrist.” After being shot, Jessop was
handcuffed 	and 	searched. 	The 	search 	revealed 	that 	Jessop
possessed two handguns. Due to the severity of Jessop’s injuries,
his handcuffs were removed following the search, and he was
taken to the hospital, accompanied by a SWAT medic.
¶7 	Following the shooting, an Ogden City Police detective
(Detective) came to the scene of the shooting to be briefed on a
domestic violence and officer-involved shooting case. Detective
testified that once on the scene, he was assigned to investigate the
domestic violence that preceded the officer-involved shooting. He
recounted that as part of his briefing on the domestic violence, he
was informed that Jessop “had a gun pointed at him” but he was
not informed that Jessop had pointed a gun at the deputies.
Detective further recounted that he concluded “it could be a
possibility” that Jessop was a restricted person because, although
it was suggested by Lily, Jessop’s status as a restricted person was
at that point “uncertified.”
¶8 	Jessop was admitted to the hospital in the early hours of
June 3, 2019, where he promptly underwent surgery. He was
placed in the ICU around 6:00 a.m. Because of the major surgery
and 	associated 	consequences, 	hospital 	staff 	implemented 	a
regimen 	of 	powerful 	pain 	medications 	and 	sedatives. 	But
beginning at around 5:30 p.m. that same day, hospital staff began
to “detoxify” Jessop and did not administer any further doses of
certain 	powerful 	medications—specifically 	a 	short-acting
sedative and a highly addictive pain medication. Although Jessop
was detoxifying from the more powerful medications, hospital
staff 	continued 	to 	monitor 	and 	mitigate 	Jessop’s 	pain,
administering other pain medication again around 8:00 p.m.

State v. Jessop
20210544-CA 	5 	2023 UT App 140
¶9 	At some point, hospital staff reached out to Detective and
said that Jessop was “awake and communicating” and that he was
“making 	statements 	about 	wanting 	to 	unplug 	his 	medical
devices,” which raised concerns that he was suicidal. On the heels
of this communication, Detective and a second detective arrived
at the hospital by around 8:00 p.m. to fill out an involuntary
commitment order as requested by hospital personnel and to
interview Jessop regarding the domestic violence incident. Prior
to the interview, Jessop’s nurse advised the detectives that Jessop
was communicating well and that he “would be able to answer
their questions appropriately.” Jessop’s nurse testified that Jessop
“was able to understand her questions, did not have any difficulty
answering her questions and . . . had been given doses of”
powerful sedatives and pain medications “prior to the detectives
arriving but the side effects of those medications had worn off
prior to the interview.”
¶10 	Before 	beginning 	the 	interview, 	Detective 	informed
hospital staff that Jessop did not need to be guarded “as he was
not being detained, was not in custody at that time,” was
“absolutely 	not 	a 	suspect,” 	and 	was 	“a 	free 	person.” 	The
detectives also advised Jessop directly “that he was not under
arrest” and was “not being detained” and “that they just want[ed]
to get his side of the story” but “he was not under any obligation
to talk to them.”
¶11 	At around 9:00 p.m., the detectives began interviewing
Jessop. For the duration of the interview, the door to the hospital
room was open so anyone could come in or leave the room at any
time, and Jessop was not placed in handcuffs or otherwise
restrained 	by 	the 	detectives. 	The 	State 	maintains 	that 	the
interview lasted approximately 30 minutes and consisted of
mostly “yes or no” questions, which Jessop responded to through
nonverbal actions and in writing. Detective testified that during
the interview, there were “only nods and yeses and [answers] in
written form on a . . . clipboard with a magic marker and a paper.”

State v. Jessop
20210544-CA 	6 	2023 UT App 140
Detective further testified that Jessop was “coherent” and “was
able 	to 	track 	[their] 	conversation,” 	even 	though 	he 	was
experiencing a visible degree of discomfort during the interview.
But this discomfort did not affect his ability to answer the
detectives’ questions, although at one point he asked Detective to
stop the interview to clarify a previous answer.
¶12 	At 	the 	beginning 	of 	the 	interview, 	Jessop 	asked 	the
detectives whether he was under arrest. Responding to the
question, Detective said, “You’ve been shot; you could be a
victim.” Then, near the end of the interview, Jessop asked what he
was charged with, and Detective responded, “Nothing yet. I say
yet, though, because possibly.” At the end of this interview,
Detective asked Jessop whether they could return the next day to
ask more questions. Jessop responded by nodding his head in the
affirmative.
¶13 	Jessop was “not arrested or detained and remained out of
custody for approximately three months prior to being booked
into . . . [j]ail for his pending charges” of, in relevant part, two
counts of assaulting a peace officer. Following his arrest, Jessop
elected to waive his preliminary hearing, and the case was set for
trial. Jessop filed both a motion to suppress evidence gathered
from the detectives’ first interview4 and a motion to dismiss all
charges.
Motion to Suppress Evidence
¶14 	In his motion to suppress evidence, Jessop cited the
seminal case of Miranda v. Arizona, 384 U.S. 436 (1966), and
asserted 	that 	“an 	individual 	has 	a 	Fifth 	and 	Fourteenth
Amendment right to remain silent as well as a Sixth Amendment
right to counsel in all criminal proceedings” but that “[t]hose
rights may be effectively waived when the interrogating officer
4. Jessop was interviewed on other occasions, but these interviews
are not at issue in this appeal.

State v. Jessop
20210544-CA 	7 	2023 UT App 140
reads the ‘Miranda rights’ admonition and receives a waiver from
the defendant.” Jessop argued that the detectives’ questioning
qualified as a custodial interrogation and that he had thus been
“entitled to a valid Miranda warning during his interview with
detectives on June 3rd, 2019.” Jessop relied on our Supreme
Court’s decision in State v. Levin, 2006 UT 50, 144 P.3d 1096,
arguing that a “custodial interrogation occurs, and Miranda
warnings are required where there is both: (1) custody, and
(2) interrogation.” See id. ¶ 34. Quoting Miranda, Jessop asserted
that custody attaches “after a person has been taken into custody
or otherwise deprived of his freedom of action in any significant
way.” Miranda, 384 U.S. at 444. He also asserted that interrogation
can be “either express questioning or its functional equivalent”
involving “words or actions on the part of police officers that they
should 	have 	known 	were 	reasonably 	likely 	to 	elicit 	an
incriminating response.” See Rhode Island v. Innis, 446 U.S. 291,
300–02 (1980) (emphasis omitted).
¶15 	Expanding on his assertion that he was interrogated while
in police custody, Jessop reasoned that after he was shot by the
deputies, which was the sole reason he was hospitalized, “police
handcuffed him and conducted a search incident to arrest” before
he was transported to the hospital while “accompanied by a
SWAT medic.” He argued that “[w]hile bedridden inside an
intensive care unit at the hospital, [he] was questioned by
Detectives . . . , who were there to investigate the alleged domestic
violence and weapons crimes.” He further argued that “[t]he
detectives’ questions amounted to an interrogation, as they were
intended to, and did in fact, [elicit] inculpatory responses from
[him].” Based on these assertions, Jessop reasoned that he had
been subjected to a custodial interrogation that entitled him to his
Miranda warning prior to questioning. And absent that warning,
he contended, his statements should be suppressed.
¶16 	The State opposed the motion, arguing that Jessop’s “Fifth
Amendment rights were not violated as the Miranda rights were

State v. Jessop
20210544-CA 	8 	2023 UT App 140
not required because [he] was not in custody.” The State quoted
our decision in State v. Maestas, 2012 UT App 53, 272 P.3d 769,
reiterating that
the Utah Supreme Court has identified four factors
that aid in determining whether a person is in
custody 	for 	Miranda 	purposes: 	(1) 	the 	site 	of
interrogation; (2) whether the investigation focused
on the accused; (3) whether the objective indicia of
arrest were present; and (4) the length and form of
interrogation.
Id. ¶ 50 (quotation simplified). See Salt Lake City v. Carner, 664 P.2d
1168, 1171 (Utah 1983).
¶17 	The State contended that after applying those four factors
to the totality of the circumstances surrounding the detectives’
interview, Jessop was not in custody for purposes of Miranda and,
thus, his Miranda rights were not triggered and waiver of those
rights was not required. In support of this contention, the State
argued the following:
First, [Jessop] was in a large patient room, he was
not restrained to the bed in any way other than for
medical purposes and the door was open. Second,
during the first interview the detectives did not
indicate that [Jessop] was under suspicion of any
crime, instead they told [him] they just wanted to
get his side of the story and even when [he] asked
“what am I charged with,” [Detective] responded
“nothing yet!” . . . . Third, the detectives did not
position themselves in a way that was threatening
or menacing, did not inform [Jessop] he was under
arrest, informed medical personnel that they did not
need to post an officer outside the room and did not
make 	any 	suggestion 	or 	movements 	that 	they
would use their handcuffs. Finally, the detectives

State v. Jessop
20210544-CA 	9 	2023 UT App 140
did not tell [Jessop] that he had to speak with them
at any time, they only asked minimal question[s]
that were investigatory in nature and the first
interview 	lasted 	only 	approximately 	thirty
minutes[.]
¶18 	Following argument, the court ruled from the bench. The
court first stated that “it’s a close call, admittedly, because . . .
[Jessop] clearly [was] in the hospital because he’[d] been shot.”
But the court noted that its focus centered on the crucial question
of 	“what 	a 	reasonable 	person 	would 	believe 	under 	the
circumstances.” The court indicated that “[w]hen you look at the
indicia of arrest, it seems like there just isn’t any indicia of arrest.
He’s just in a hospital room convalescing from some very serious
wounds that he received.” The court made mention of Detective’s
indication to Jessop “that his focus was not on [Jessop] as a
suspect,” that “[h]e was just trying to figure out what had
happened and whether [Jessop] was a victim or whether he was a
perpetrator,” and that Jessop “wasn’t necessarily being targeted
as a suspect.”
¶19 	The court then considered the initial interaction between
Jessop and the detectives and noted that when the detectives first
approached Jessop, they inquired, “Is it okay if we talk to you for
a minute and get your side of the story?” The court commented
that the detectives’ approach was permissive, which it thought
was “important.” The court’s focus then turned to the pivotal
exchange where Detective informed Jessop that he was “not
under arrest,” to which Jessop responded by inquiring again if he
was under arrest. Jessop’s nurse confirmed Detective’s earlier
statement that Jessop was not, in fact, under arrest. The court
determined that a reasonable person in Jessop’s circumstances
would not have considered themself to be custodially detained by
the police even if the person had been previously detained at the
scene of a shooting and was later hospitalized, because there was
a detective saying, “You’re not under arrest. You’re not being

State v. Jessop
20210544-CA 	10 	2023 UT App 140
detained. We’re just here to get your side of the story. Can we chat
with you so we can get all sides of the story?” And the court noted
that several of these statements were confirmed by a hospital
nurse. Thus, the court determined that because Jessop was not in
police custody at the hospital, he had not been subjected to
custodial 	interrogation 	requiring 	a 	recital 	of 	the 	Miranda
warnings. The court consequently denied the motion to suppress.
Motion to Dismiss
¶20 	In his motion to dismiss, Jessop focused on the deputies’
failure to activate their body cameras prior to the shooting. Jessop
argued that the deputies violated his right to a fair trial when,
after locating him, they exited their vehicles without activating
their body cameras. Quoting State v. Stewart, 544 P.2d 477, 479
(Utah 1975), he argued that the “right to a fair trial . . . is violated
if ‘those charged with the prosecution, including police officers,’
deliberately destroy or fail to preserve evidence that is material to
the guilt or innocence of the accused.” He then cited State v.
Tiedemann, 2007 UT 49, 162 P.3d 1106, contending that our
Supreme Court adopted a “two-part test for analyzing whether
dismissal is appropriate in cases involving the loss, destruction or
failure to preserve material evidence.” See id. ¶ 44. He asserted
that under Tiedemann, a court must consider
(1) the reason for the destruction or loss of the
evidence, including the degree of negligence or
culpability on the part of the State; and (2) the
degree of prejudice to the defendant in light of the
materiality and importance of the missing evidence
in the context of the case as a whole, including the
strength of the remaining evidence.
Id.
¶21 	Jessop argued that under the first part of the Tiedemann test,
“by failing to activate their body worn cameras prior to engaging

State v. Jessop
20210544-CA 	11 	2023 UT App 140
[him], [the deputies] failed to preserve video evidence of what
actually happened in the moments leading up to and during the
shooting.” Jessop further argued that the deputies’ failure was
“negligent per se” because under section 77-7a-104(4) of the Utah
Code “the officers were required . . . to ‘activate the body-worn
camera prior to any law enforcement encounter, or as soon as
reasonably possible,’” and “[t]here was no reason why the officers
in this case would have been unable to activate their cameras prior
to engaging [him].” Under the second part of the Tiedemann test,
Jessop contended that “in light of the material value of [the body
camera] evidence,” the “degree of prejudice . . . [was] extremely
high.” Based on these arguments, Jessop contended that “both
prongs of the test weigh in favor of dismissal” and requested that
the court “dismiss all charges.”5
¶22 	In 	response, 	the 	State 	contended 	that 	the 	deputies
had complied 	with 	section 	77-7a-104(4) 	“[i]n 	that 	they
activated their 	body 	worn 	cameras 	as 	soon 	as 	reasonably
possible given the circumstances they were confronted with.” See
Utah Code Ann. § 77-7a-104(4) (LexisNexis Supp. 2022).6 The
State argued 	that 	section 	77-7a-102(3) 	directly 	addressed
law enforcement’s 	utilization 	of 	body 	cameras 	and
specifically provided 	that 	chapter 	7a 	of 	title 	77 	“does 	not
require an officer to jeopardize the safety of the public, other
law enforcement 	officers, 	or 	himself 	or 	herself 	in 	order 	to
5. Jessop’s motion requested that the district court dismiss this
matter in its entirety. At the hearing, however, defense counsel
indicated that the defense was not asking the court to dismiss the
entire case but instead just the charges pertaining to what the
deputies’ body camera footage would likely have revealed.
6. Because the applicable provisions of the Utah Code in effect at
the relevant time do not differ from those currently in effect in any
way material to this appeal, we cite the current version of the code
for convenience.

State v. Jessop
20210544-CA 	12 	2023 UT App 140
activate or deactivate a body-worn camera.” See id. § 77-7a-102(3)
(2017).
¶23 	The 	State 	argued 	that 	when 	the 	deputies 	finally
encountered 	Jessop 	after 	responding 	to 	multiple 	possible
locations, they were operating on information that he had pointed
a gun at Lily and threatened to kill her, “that he was armed with
two handguns, that he had fired off two shots in a residential
neighborhood, that he was a convicted felon and a restricted
person, and that he had said that if police were called, there would
be a bloodbath.” The State argued that “[b]ased on all those
factors, the deputies were legally obligated to take [Jessop] into
custody to make sure he did not endanger anyone else.” The State
noted that the deputies “were confronted with an on-going
emergency and requiring them to stop what they were doing and
take their attention away from this dangerous suspect in order to
insure that their cameras were activated . . . is the very type of
circumstance that was intended when the legislature left the
exception ‘or as soon as reasonably possible’ in” section 77-7a-104(4).
The State further contended that “[a]s soon as the threat to the
public and to the officers was alleviated, [the deputies] turned on
their cameras.”
¶24 	The court also ruled on this motion from the bench. The
court 	said: 	“Because 	nothing 	was 	destroyed, 	this 	isn’t 	a
destruction case. If anything, it’s a failure to preserve case, which
Tiedemann doesn’t actually speak to.” The court considered the
“reasonableness or the reason for the lack of preservation of this
evidence” and “the reasonable thoughts an officer would have”
under the circumstances described above. In its consideration of
the 	deputies’ 	actions, 	the 	court 	observed 	that 	it 	would 	be
reasonable for them to be thinking,
I’ve got an armed suspect. He’s agitated. He’s made
threats that there’s going to be a bloodbath. He’s
already engaged in alleged aggravated assault. And

State v. Jessop
20210544-CA 	13 	2023 UT App 140
we’re on alert. And so they, of course, are focusing
first and foremost on public safety and their own
safety. And . . . to some degree the safety of Mr.
Jessop.
¶25 	With respect to these considerations and the requirements
under Tiedemann, the court found that there was no lost or
destroyed evidence. The court then determined that, under the
statute, the deputies’ activation of their body cameras “at the
completion of the shooting when there was no longer the threat
. . . was reasonable” in consideration of officer and public safety.
In that vein, the court determined that the deputies “did not act
in 	bad 	faith” 	and 	“did 	not 	act 	unreasonably 	given 	the
ever-changing circumstances and the evolution of facts that . . .
came about as they were attempting to locate Mr. Jessop.”
Accordingly, the court denied the motion to dismiss.
¶26 	The court later memorialized in writing its rulings from the
bench denying Jessop’s motions to suppress evidence and to
dismiss 	charges. 	Jessop 	subsequently 	entered 	into 	a 	plea
agreement with the State, in which he entered both a no-contest
Sery plea7 and an Alford plea8 regarding the two charges of assault
7. As has been codified for many years in rule 11(j) of the Utah
Rules of Criminal Procedure, “a Sery plea is a conditional plea in
which a defendant pleads guilty (or no contest) but reserves the
right to appeal the trial court’s denial of a motion to suppress
certain evidence. If the appellate court reverses the denial of that
motion, the defendant’s plea is withdrawn.” Kamoe v. Ridge, 2021
UT 5, ¶ 23, 483 P.3d 720 (quotation simplified). See State v. Sery,
758 P.2d 935, 937–39 (Utah Ct. App. 1988).
8. An Alford plea
is a type of guilty plea in which a defendant does
not 	expressly 	admit 	his 	guilt, 	but 	nonetheless
(continued…)

State v. Jessop
20210544-CA 	14 	2023 UT App 140
against a peace officer. He also pled guilty to all other charges not
dismissed by the State as a part of the plea agreement.
ISSUES AND STANDARDS OF REVIEW
¶27 	Jessop raises two issues on appeal. He first contends that
the court erroneously denied his motion to dismiss the assault
against a peace officer charges, arguing that his right to due
process was violated because the State destroyed exculpatory
evidence. 	“Whether 	the 	State’s 	destruction 	of 	potentially
exculpatory evidence violates due process is a question of law that
we review for correctness, though we incorporate a clearly
erroneous 	standard 	for 	the 	necessary 	subsidiary 	factual
determinations.” State v. DeJesus, 2017 UT 22, ¶ 18, 395 P.3d 111
(quotation simplified).
¶28 	Jessop next contends that the court erroneously denied his
motion to suppress, arguing that the detectives’ questioning while
he was in the hospital constituted a custodial interrogation
requiring a Miranda warning. “We review the trial court’s factual
findings underlying the denial of a motion to suppress for clear
error, while we review a trial court’s ensuing conclusions of law
for correctness.” State v. Maestas, 2012 UT App 53, ¶ 16, 272 P.3d
769 (quotation simplified).
waives his right to a trial and authorizes the court
for purposes of the case to treat him as if he were
guilty. These pleas allow courts to impose a prison
sentence 	upon 	an 	accused 	who 	is 	unwilling
expressly to admit his guilt but who, faced with
grim alternatives, is willing to waive his trial and
accept the sentence.
State v. Archuleta, 2019 UT App 136, ¶ 5 n.2, 449 P.3d 223
(quotation simplified). See North Carolina v. Alford, 400 U.S. 25,
35-36 (1970).

State v. Jessop
20210544-CA 	15 	2023 UT App 140
ANALYSIS
I. Motion to Dismiss9
¶29 	The 	district 	court 	denied 	Jessop’s motion 	to 	dismiss,
holding that our Supreme Court’s decision in State v. Tiedemann,
2007 UT 49, 162 P.3d 1106, was inapplicable to this case. The court
held that no video evidence of the police shooting had been
destroyed 	and, 	accordingly, 	concluded 	that 	this 	was 	not 	a
destruction of evidence case, stating, “If anything, it’s a failure to
preserve case, which Tiedemann doesn’t actually speak to.” Jessop
argues that the court’s conclusion that Tiedemann did not apply
deprived him of due process.
¶30 	The Utah Constitution provides that “[n]o person shall be
deprived of life, liberty or property, without due process of law.”
Utah 	Const. 	art. 	I, 	§ 	7. 	In 	Tiedemann, 	our 	Supreme 	Court
considered the due process right to protection against the State’s
loss or destruction of possibly exculpatory evidence. With the
objective of providing an “adequate safeguard,” our Supreme
Court implemented the following two-part framework to deal
9. Jessop presents this purely as a constitutional due process issue
rather than as a claim under the body-worn camera statute, which
requires that officers “activate the body-worn camera prior to any
law enforcement encounter, or as soon as reasonably possible.”
Utah Code Ann. § 77-7a-104(4) (LexisNexis Supp. 2022). Within
the body camera statute, our Legislature has seen fit to include the
provision that “[a] violation of [section 104] may not serve as the
sole basis to dismiss a criminal case or charge.” Id. § 77-7a-104(12)
(emphasis added). Thus, while we do not reach the statutory
question here, we think it unlikely that Jessop would have
prevailed on appeal had he sought relief on the theory that the
detectives violated the body-worn camera statute, given the “sole
basis” language in the statute.

State v. Jessop
20210544-CA 	16 	2023 UT App 140
with cases where the State has lost or destroyed potentially
exculpatory evidence:
In cases where a defendant has shown a reasonable
probability that lost or destroyed evidence would be
exculpatory, 	we 	find 	it 	necessary 	to 	require
consideration of the following: (1) the reason for the
destruction or loss of the evidence, including the
degree of negligence or culpability on the part of the
State; 	and 	(2) 	the 	degree 	of 	prejudice 	to 	the
defendant in light of the materiality and importance
of the missing evidence in the context of the case as
a whole, including the strength of the remaining
evidence.
Tiedemann, 2007 UT 49, ¶ 44 (emphasis added). See State v. DeJesus,
2017 UT 22, ¶ 26, 395 P.3d 111. In this appeal, we must consider
whether evidence that never came to exist qualifies as either “lost
or destroyed.” See Tiedemann, 2007 UT 49, ¶ 44.10
10. In Arizona v. Youngblood, 488 U.S. 51 (1988), the United States
Supreme Court held “that unless a criminal defendant can show
bad faith on the part of the police, failure to preserve potentially
useful evidence does not constitute a denial of due process of law”
under the federal constitution. Id. at 58. Our Supreme Court’s
decision in State v. Tiedemann, 2007 UT 49, 162 P.3d 1106, departed
from the test articulated in Youngblood because it was “both too
broad and too narrow to serve as an adequate safeguard of the
fundamental fairness required by article I, section 7 of the Utah
Constitution.” Id. ¶ 44 (quotation simplified). In departing from
Youngblood, Utah joined many other states that have replaced a
defendant’s required demonstration of bad faith on the part of the
police 	with 	a 	two-part 	“balancing 	process” 	based 	on
“fundamental fairness.” Id. ¶¶ 42, 45.

State v. Jessop
20210544-CA 	17 	2023 UT App 140
¶31 	In Tiedemann, the defendant was “declared incompetent to
stand 	trial” 	and 	“then 	civilly 	committed 	to 	the 	Utah 	State
Hospital.” Id. ¶ 7. Following standard procedure and with
permission from the prosecutor, the State destroyed the majority
of the physical evidence two years later based on its informed
expectation that it was “unlikely” that the defendant would “ever
be found competent to stand trial.” Id. ¶¶ 7–8. But nearly ten years
after committing the crime, the defendant was found competent
to stand trial. Id. ¶ 10. The trial court later denied the defendant’s
motion “to dismiss the case due to destruction of evidence.” Id.
Our 	Supreme 	Court 	affirmed 	the 	decision 	based 	on 	its
determination that “the reasons for the loss of the evidence are
entirely routine and benign.” Id. ¶ 46.
¶32 	As the district court correctly noted in the current case, the
circumstances 	here 	materially 	differ 	from 	the 	circumstances
presented in Tiedemann because in that case there was no dispute
that the evidence had existed or that the State had destroyed it.
But in this case, video evidence from the deputies’ body cameras
prior to their post-shooting activation never actually existed. This
presents us with the question of whether it can be said that the
State 	“lost” 	or 	“destroyed” 	evidence 	that 	never 	came 	into
existence.
¶33 	We previously contemplated a similar issue in State v.
Powell, 2020 UT App 63, 463 P.3d 705. In that case, the defendant
argued on appeal that defense counsel “performed deficiently by
not moving to dismiss the case due to the lost or destroyed video
surveillance” 	evidence, 	id. 	¶ 	50, 	and 	we 	considered 	the
defendant’s entitlement to “information possessed by the State,” id.
¶ 51 (emphasis in original) (quotation simplified). The case
involved security camera footage from convenience stores, and
the defendant focused on the stores’ culpability and “the police’s
purported obligation to immediately make some attempt to
preserve potential evidence upon receipt of a report.” Id. In our
decision, we cited Tiedemann for the proposition that “criminal

State v. Jessop
20210544-CA 	18 	2023 UT App 140
defendants are entitled to information possessed by the State to aid
in their defense,” id. (quoting Tiedemann, 2007 UT 49, ¶ 40)
(emphasis in Powell), and held that the State was under no
affirmative duty to protect evidence not in its possession, id.
¶¶ 51, 54–55. Because the defendant in that case was not able to
show that the State ever had possession of the footage, we
concluded that the defendant would not be able to demonstrate
that “the State actually lost or destroyed the video footage.” Id.
¶ 51. By logical extension of our reasoning in Powell, if the State is
not responsible for preserving evidence that existed but that the
State did not possess, can the State be liable for the loss or
destruction of evidence that never even existed? We think not.
¶34 	Jessop further relies on our decision in Gordon v. State, 2016
UT App 190, 382 P.3d 1063, cert. denied, 390 P.3d 726 (Utah 2017).
In Gordon, the defendant argued “that his right to due process was
violated when the police failed to collect or preserve . . . critical
physical evidence from the crime scene.” Id. ¶ 5 (quotation
simplified). We held that the defendant “could have discovered
and raised a due process claim in post-trial motions based on the
State’s failure to collect the” evidence. Id. ¶ 32. But this decision is
readily 	distinguishable 	from 	the 	case 	at 	hand 	because 	the
challenged evidence in Gordon actually existed, while here the
evidence 	on 	which 	Jessop 	relies 	never 	did. 	Simply 	stated,
evidence that never came into existence can neither be lost nor
destroyed, and so such evidence is beyond the reach of the rule
explained in Tiedemann.
¶35 	For Tiedemann to have applied in this case, the deputies
would have had to have activated their body cameras, generated
the video footage that Jessop thinks would have been exculpatory,
and then lost or destroyed that video footage. But none of that
happened, so Jessop does not have a claim under Tiedemann.
Based on the fact that the evidence simply did not exist, and given
our determination that Tiedemann requires the loss or destruction

State v. Jessop
20210544-CA 	19 	2023 UT App 140
of evidence that had come into existence at some point, the district
court correctly ruled that Tiedemann did not apply.
II. Motion to Suppress Evidence
¶36 	The district court denied Jessop’s motion to suppress
evidence gathered by the detectives during the hospital interview
based on the court’s ultimate finding that Jessop “was not ‘in
custody’ 	for 	the 	purposes 	of 	Miranda” 	and 	the 	consequent
conclusion that he “was not subject to custodial interrogation.”
On appeal, Jessop asserts that the district court’s ruling was
erroneous. He contends that the court’s consideration regarding
Jessop’s hospitalization is distinguishable from our decision in
State v. Maestas, 2012 UT App 53, 272 P.3d 769, and that “the
district 	court 	left 	out 	many 	facts 	that 	led 	to 	the 	incorrect
conclusion.” Jessop identifies three factors unaddressed by the
court. He first argues that the court “made no findings about how
[he] was brought to the hospital.” He then argues that the court
made no findings about how Detective “showed up to the hospital
to fill out involuntary commitment paperwork and actually did
fill out that paperwork.” And lastly, Jessop argues that the court
did not make findings that Detective’s disclosure to Jessop that he
was not under arrest “was belied by the fact that [his] prior officer
interactions involved the use of weapons and restraint, and had
the deputies not severely wounded [him], [he] would have been
arrested and taken to jail.” Ultimately, though, Jessop asserts that
“[d]espite statements from detectives that [he] was not under
arrest, . . . a reasonable person would not believe he was free to
terminate the encounter with the detectives and leave” because he
“could neither speak nor leave the bed or equipment attached to
him that was preserving his life.”
¶37 	Conversely, the State argues that the court properly denied
Jessop’s motion to suppress. The State contends that “even if
Jessop could have reasonably believed that he was still in [police]
custody while receiving medical care, that belief was undercut the

State v. Jessop
20210544-CA 	20 	2023 UT App 140
moment [Detective] explicitly informed him that he was not
under arrest and he was not detained.” Ultimately, the State
contends, quoting State v. Levin, 2006 UT 50, 144 P.3d 1096, that
“Jessop’s ‘freedom of action’ was not ‘curtailed’ by police in any
degree, and even if it could be said that it was, it was certainly not
‘curtailed to a degree associated with formal arrest.’” See id. ¶ 35
(quoting Berkemer v. McCarty, 468 U.S. 420, 440 (1984)). Based on
all the relevant circumstances, we agree with the State that Jessop
was not in police custody when he was questioned by the
detectives.
¶38 	Possibly 	because 	of 	its 	fundamental 	significance 	or
possibly because of the entertainment media’s fascination with
criminal law, attorneys, and law enforcement, the recitation of
Miranda warnings may be the most frequently quoted phrasing
from American jurisprudence. See Miranda v. Arizona, 384 U.S.
436, 	479 	(1966). 	In 	Miranda, 	“the 	Court 	adopted 	a 	set 	of
prophylactic measures to protect a suspect’s Fifth Amendment
right from the inherently compelling pressures of 	custodial
interrogation,” 	Maryland 	v. 	Shatzer, 	559 	U.S. 	98, 	103 	(2010)
(quotation simplified), by requiring that law enforcement inform
a criminal suspect that “he has the right to remain silent, anything
he says can be used against him in a court of law, he has the right
to the presence of an attorney, and if he cannot afford an attorney
one will be appointed for him prior to any questioning if he so
desires,” State v. Fullerton, 2018 UT 49, ¶ 18, 428 P.3d 1052 (quoting
Miranda, 384 U.S. at 479) (internal quotation marks omitted).
Miranda warnings are not required every time police ask someone
questions. But due to their critical importance, “Miranda warnings
must be given to a defendant subject to custodial interrogation.”
State v. Ferry, 2007 UT App 128, ¶ 12, 163 P.3d 647 (quotation
simplified). 	Otherwise, 	“[w]here 	an 	individual 	is 	subject 	to
custodial interrogation and not given Miranda warnings, any
statement made by that individual is inadmissible at trial.”
Maestas, 2012 UT App 53, ¶ 48.

State v. Jessop
20210544-CA 	21 	2023 UT App 140
¶39 	Generally, “custodial interrogation occurs where there is
both (1) custody or other significant deprivation of a suspect’s
freedom and (2) interrogation.” Levin, 2006 UT 50, ¶ 34. In this
case, the State does not dispute that Detective “‘interrogated’
Jessop at the hospital.” Therefore, we consider only whether the
court erroneously found that Jessop was not in police custody for
the purposes of Miranda when he was interrogated by Detective.
¶40 	“[B]ecause Miranda is a matter of federal jurisprudence, our
courts must be in lockstep with the United States Supreme Court
on whether an individual is in custody for purposes of Miranda.”
Fullerton, 2018 UT 49, ¶ 3. For Miranda purposes, “‘custody’ is a
term of art that specifies circumstances that are thought generally
to present a serious danger of coercion.” Howes v. Fields, 565 U.S.
499, 508–09 (2012). It “is not synonymous with supervision or
control.” State v. Reigelsperger, 2017 UT App 101, ¶ 43, 400 P.3d
1127, cert. denied, 409 P.3d 1048 (Utah 2017). Under federal
Miranda jurisprudence, questions of a suspect’s custody are to be
analyzed using a two-step analysis. “The initial step is to ascertain
whether, 	in 	light 	of 	the 	objective 	circumstances 	of 	the
interrogation, a reasonable person would have felt he or she was
not at liberty to terminate the interrogation and leave.” Fullerton,
2018 UT 49, ¶ 21 (quotation simplified).11 See Howes, 565 U.S. at
11. In State v. Fullerton, 2018 UT 49, 428 P.3d 1052, our Supreme
Court addressed Utah’s prior reliance on the Carner factors for
questions of police custody. Id. ¶¶ 19–26. See Salt Lake City v.
Carner, 	664 	P.2d 	1168, 	1171 	(Utah 	1983) 	(stating 	that 	in
determining 	whether 	a 	suspect 	was 	subject 	to 	custodial
interrogation, a court must consider “(1) the site of interrogation;
(2) whether the investigation focused on the accused; (3) whether
objective indicia of arrest were present; and (4) the length and
form of interrogation”). The Court determined that “[s]trict or sole
reliance on the Carner factors is inconsistent with the totality of
the circumstances analysis prescribed by federal law,” and that
(continued…)

State v. Jessop
20210544-CA 	22 	2023 UT App 140
509. If the court finds that an individual’s freedom of movement
was not curtailed, then the person was not in custody for Miranda
purposes and the court’s analysis ends there. See Fullerton, 2018
UT 	49, 	¶ 	36. 	Conversely, 	if 	the 	court 	does 	find 	that 	“an
individual’s freedom of movement was curtailed, the focus turns
to 	whether 	the 	relevant 	environment 	present[ed] 	the 	same
inherently 	coercive 	pressures 	as 	the 	type 	of 	station 	house
questioning at issue in Miranda.” Id. ¶ 21 (quotation simplified).
¶41 	“The first part of this inquiry—whether a reasonable
person would have felt free to leave—is an objective one.” State v.
Fredrick, 2019 UT App 152, ¶ 30, 450 P.3d 1154, cert. denied, 458
P.3d 748 (Utah 2020). “In order to determine how a suspect would
have gauged his freedom of movement, courts must examine all
of the circumstances surrounding the interrogation.” Howes, 565
U.S. at 509 (quotation simplified). “Relevant factors include,” but
“[w]hile these four factors may, at times, be relevant in a custody
analysis, 	misplaced 	reliance 	on 	these 	factors 	can 	be 	highly
problematic, especially where such reliance leads to conflicts with
controlling law.” Fullerton, 2018 UT 49, ¶ 23. Therefore, in cases
arising after our Supreme Court’s adoption of the Fullerton
two-step 	analysis, 	“[e]ach 	of 	the 	Carner 	factors 	should 	be
considered 	when 	relevant, 	ignored 	when 	not, 	and 	given
appropriate weight according to the circumstances.” Id. As the
Court explained,
we consider the Carner factors, as well as any
additional factors indicated by the [United States]
Supreme 	Court, 	within 	the 	broader 	contextual
picture. And when, as a background matter, a
person 	is 	subject 	to 	extensive, 	state-imposed
restrictions on freedom of movement, the custody
analysis should address all of the features of the
interrogation, including the manner in which the
interrogation was conducted.
Id. ¶ 24 (quotation simplified).

State v. Jessop
20210544-CA 	23 	2023 UT App 140
are not limited to, “the location of the questioning, its duration,
statements made during the interview, the presence or absence of
physical restraints during the questioning, and the release of the
interviewee 	at 	the 	end 	of 	the 	questioning.” 	Id. 	(quotation
simplified). But in conducting this inquiry, “the subjective views
harbored by either the interrogating officers or the person being
questioned are irrelevant.” Fullerton, 2018 UT 49, ¶ 22 (quotation
simplified). 	See 	Levin, 	2006 	UT 	50, 	¶ 	35 	(“A 	suspect 	may
understand himself or herself to be in custody based either on
physical evidence or on the nature of the officer’s instructions and
questions.”); Maestas, 2012 UT App 53, ¶ 49 (“Whether this
standard is met depends on the objective circumstances of the
interrogation, not on the subjective views harbored by either the
interrogating officers or the person being questioned.”) (quotation
simplified).
¶42 	We ultimately conclude that Jessop was not in police
custody for the purposes of Miranda when he was interrogated by
Detective in the ICU, although clearly his freedom of movement
was curtailed by his serious injuries and the life-saving medical
equipment to which he was attached. We first consider whether
“a reasonable person would have felt he or she was not at liberty
to terminate the interrogation.” Fullerton, 2018 UT 49, ¶ 21
(quotation simplified). “The most obvious and effective means of
demonstrating that a suspect has not been taken into custody or
otherwise deprived of freedom of action is for the police to inform
the suspect that an arrest is not being made and that the suspect
may terminate the interview at will.” United States v. Griffin, 922
F.2d 1343, 1349 (8th Cir. 1990) (quotation simplified).
¶43 	Here, before the detectives started to question Jessop, they
asked, “Is it okay if we talk to you for a minute and get your side
of the story?” Jessop could have declined the detectives’ request,
but instead he agreed, affirmatively consenting to speak with
them. When Detective began the interview, Jessop initially asked
whether he was under arrest. Detective responded by stating that

State v. Jessop
20210544-CA 	24 	2023 UT App 140
Jessop was neither under arrest nor being detained by police and,
further, that Jessop was under no obligation to speak to them.
Near the end of the interview, Detective testified that Jessop asked
a similar question, “What am I charged with,” to which Detective
similarly responded, “Nothing yet, I say yet, though, because
possibly.” Given Detective’s explanations that Jessop was neither
under arrest nor charged with anything at that time and that
Jessop was not under any obligation to speak with the detectives,
a reasonable person in Jessop’s position would feel at liberty to
terminate the conversation. As such, given all the circumstances,
the court’s finding that Jessop was not in custody for Miranda
purposes is sound. See Fullerton, 2018 UT 49, ¶ 21.
¶44 	Cases considering the question of custody for Miranda
purposes typically speak in terms of a person’s liberty “to
terminate the interrogation and leave.” See, e.g., Howes, 565 U.S. at
509 (quotation simplified). And in the vast majority of such cases,
the two rise and fall together. Examples of this include a person
who was stopped on the street and asked questions without being
arrested or restrained in any way, see Salt Lake City v. Ray, 2000 UT
App 55, ¶ 11, 998 P.2d 274 (“As long as the person remains free to
disregard the questions and walk away, there has been no
intrusion upon that person’s liberty or privacy as would under
the 	Constitution 	require 	some 	particularized 	and 	objective
justification.”) (quotation simplified), and a person who comes to
the police station voluntarily and is interviewed by the police,
without being restrained or confined, see Fullerton, 2018 UT 49,
¶¶ 31–32, 36 (noting that a defendant’s voluntary appearance at
the police station, in conjunction with a general lack of restraint
and repeated assurance that he was not under arrest and free to
leave, weighed against a finding that he was subject to police
custody).
¶45 	But in some cases, a defendant’s ability to terminate the
interrogation is not synonymous with the defendant’s ability to
leave the premises. For example, when police interview someone

State v. Jessop
20210544-CA 	25 	2023 UT App 140
who is already incarcerated, the fact that the interviewee cannot
leave the premises is not dispositive of whether the interviewee
was detained for purposes of Miranda. See Howes, 565 U.S. at
515-16 (holding that the defendant was not in police custody even
though he could not have expected to be able to “roam free”
following his choice to end the interview”); State v. Butt, 2012 UT
34, ¶ 22, 284 P.3d 605 (holding that the defendant was not in police
custody 	for 	Miranda 	purposes 	where 	his 	“liberty 	was 	not
restrained beyond his usual status as a jail inmate, nor was he
coerced in any way”).
¶46 	In this case, similar to instances of the police questioning
an already incarcerated person, Jessop’s abilities “to terminate the
interrogation and leave,” Howes, 565 U.S. at 509 (quotation
simplified), did not rise and fall together. As indicated, it is clear
that 	Jessop 	understood 	that 	he 	was 	free 	to 	terminate 	the
conversation, and he was told that he was not under arrest, both
by Detective and a nurse. Had he elected to terminate the
interview at any time during its thirty-minute course, it is obvious
that he would not have been able to simultaneously exit his
hospital room and call an Uber but instead that his decision to
terminate the interview would “merely have returned him to his
usual environment,” id. at 516, namely, confinement as a matter
of 	medical 	necessity 	rather 	than 	at 	the 	direction 	of 	law
enforcement. Similar to someone who is incarcerated prior to a
police interrogation, Jessop’s inability to leave the interrogation
was not attributable to the police conducting an interview or
indicative of coercion. Instead, his inability to leave was a function
of his serious injuries and his associated hospital confinement. Put
simply, his inability to leave was a result of his being subject to
medical confinement rather than police restraint.
¶47 	For this reason, our focus is directed at Jessop’s awareness
that he was free to end the interview whenever he pleased, even
though he was not physically able to leave the hospital due to his
significant 	injuries 	and 	resulting 	treatment 	regimen.

State v. Jessop
20210544-CA 	26 	2023 UT App 140
Nevertheless, other factors, such as the open door to his ICU
room, likewise contributed to his understanding that he was free
to end the interview at any time. See Fullerton, 2018 UT 49, ¶ 31
(noting that even if the door is closed, a defendant’s knowledge
that it is not locked weighs against a finding of police custody).
The open door is at odds with any suggestion that he was subject
to police coercion, and throughout the interview, Jessop received
ongoing medical attention for his injuries—nurses and other
healthcare workers were constantly coming and going. Further,
he was not restrained in any way by the police through the use of
handcuffs, drawn guns, an officer stationed outside his room, or
a locked door. On the contrary, Detective informed the hospital
staff that Jessop was “not to be guarded whatsoever” and that he
was “a free person.” This reality was confirmed a few weeks later
when Jessop was discharged from the hospital and left as any
other patient would do.
¶48 	We 	categorically 	reject 	Jessop’s 	efforts 	to 	equate 	his
gunshot wounds and subsequent life-saving medical treatment
with a formal arrest and the ensuing restraint on a person’s
freedom 	of 	movement 	for 	purposes 	of 	Miranda. 	When 	the
detectives arrived, Jessop had been out of surgery for somewhere
around fifteen hours and, because of his injuries and treatment
regimen, he was hooked to a feeding tube and undoubtedly any
number 	of 	other medical 	apparatuses. 	But 	being 	physically
restrained 	for 	“life-saving 	medical 	treatment” 	and 	by 	the
corresponding medical devices can simply not be equated with
police restraints that are so commonly the focus under Miranda
and its progeny. Indicia of police custody—closed and locked
doors, drawn weapons, guards, handcuffs, or other factors—are
qualitatively different from the predictable indicia of a person’s
necessary medical treatment—medical tubes and hoses, an open
door in a busy hospital, and the coming and going of medical
personnel. Jessop does not persuasively argue otherwise.

State v. Jessop
20210544-CA 	27 	2023 UT App 140
¶49 	Jessop’s best argument is that an individual who has been
shot by the police and is hospitalized as a direct result of the
shooting is necessarily in police custody for the purposes of
Miranda while in the hospital. Jessop argues that because the
police shooting was the sole reason for his hospitalization, the
court erred in separating the underlying circumstances from the
medical restrictions that facilitated his interrogation by the police.
In 	support 	of 	this 	argument 	that 	where 	an 	individual’s
hospitalization 	is 	the 	result 	of 	any 	police 	shooting, 	the
circumstances call for a per se determination that the person is in
police custody for the purposes of Miranda, he cites the United
States Supreme Court’s decision in Tennessee v. Garner, 471 U.S. 1
(1985). In Garner, as a means to apprehend and prevent the escape
of a perceived home burglar, the police shot a suspect when he
“began to climb over the fence” to elude capture. Id. at 4. The
Court held that “there can be no question that apprehension by
the use of deadly force is a seizure subject to the reasonableness
requirement of the Fourth Amendment.” Id. at 7.
¶50 	We are not persuaded that Garner is sufficiently similar to
the facts of our case. There, the police employed deadly force as
an offensive action to apprehend the suspect and further prevent
him from eluding capture; but here, the deputies’ use of deadly
force came as the result of a defensive reaction when they were
confronted by a person who had earlier discharged multiple
firearms in a residential neighborhood and was now wielding a
firearm and pointing it at them in a public place. Because the
police shooting here was not for the sole purpose of apprehending
Jessop but instead for the primary purpose of ensuring personal
and public safety, this case is readily distinguishable from Garner.
Therefore, we reject Jessop’s argument that every police shooting
results in a per se determination of police custody.
¶51 	Jessop also argues that this case is distinguishable from
State v. Maestas, 2012 UT App 53, 272 P.3d 769, in which we stated
that a defendant who was interviewed in a hospital emergency

State v. Jessop
20210544-CA 	28 	2023 UT App 140
room “was, in a sense, in medical, not police custody.” Id. ¶ 51.
Jessop contends that his case is distinguishable because the
defendant in Maestas was brought to the hospital by civilian
medical personnel following an automobile accident, see id. ¶ 5, as
opposed to Jessop’s being brought to the hospital by medical
personnel, including a SWAT medic, after being shot by the
police. But we are not persuaded that there is a sufficient basis to
differentiate these two cases. Even though Maestas was decided
using the Carner factors, see supra note 11, we would still reach the
same conclusion under current Miranda jurisprudence. In fact, we
view our decision in Maestas as being very similar to the case at
hand because the defendant there was also restrained only by the
hospital’s imposition of medical devices and not by any restraint
measures imposed by the police. In Maestas, we held that “we do
not assume an individual is in custody for Miranda purposes
when his confinement and isolation are the result of medical
treatment and not police interrogation.” 2012 UT App 53, ¶ 51.
Here, Jessop was physically restrained only by his feeding tube
and the other necessary medical apparatuses. While Jessop argues
that the feeding tube is attributable to the police shooting and
therefore constitutes police custody, as addressed above, we are
not persuaded by Jessop’s argument.
¶52 	When considering these circumstances in their totality, we
conclude that at the time of his hospital interview, Jessop was not
restrained by the police, much less restrained in a manner akin to
a formal arrest, and that a reasonable person in Jessop’s position
“would have felt free to terminate the interview.” Fullerton, 2018
UT 49, ¶ 30. Based on the foregoing, we are not persuaded that
Jessop 	was in 	police 	custody 	for 	the 	purposes of 	Miranda.
Therefore, we conclude that the district court’s ruling that Jessop
was not in custody at the time of Detective’s questioning was by
no means erroneous.

State v. Jessop
20210544-CA 	29 	2023 UT App 140
CONCLUSION
¶53 	The district court correctly held that Tiedemann did not
apply in this case because the video evidence from the deputies’
body cameras simply never existed. The police neither lost nor
destroyed it. We also conclude that the court correctly determined
that Jessop was not in police custody at the time of the detectives’
interview in the hospital and he was therefore not entitled to
Miranda warnings.
¶54 	Affirmed.