“custody”] is to determine what were “the circumstances surrounding the interrogation” — a “distinctly factual” inquiry as to which “we must defer to the trial judge’s factual findings and accept any reasonable inferences [she] has drawn from the evidence.” In re J.H., 928 A.2d at 650-51. The issue of “whether on the duly established facts, appellant was subject to custodial interrogation without the benefit of Miranda warnings” is a legal one, which we review de novo. Hill v. United States, 858 A.2d 435, 442 (D.C. 2004). As the Supreme Court has observed, “[u]nfortunately, the task of defining ‘custody is a slippery one.” Oregon v. Elstad, 470 U.S. 298, 309, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985); see also Berkemer v. McCarty, 468 U.S. 420, 441, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984) (<HOLDING>). It is clear, however, that an individual may
holding officer was performing discretionary act in deciding when and how to arrest suspect recognizing that not all statements obtained by the police after a person has been taken into custody are to be considered the product of interrogation holding that although interrogation may not continue after a suspect has requested counsel the police legitimately may inquire whether the suspect has changed his mind about speaking to them without an attorney recognizing that police and the courts will continue occasionally to have difficulty deciding exactly when a suspect has been taken into custody holding that police officers had probable cause to arrest a suspect where the facts suggest a fair probability that the suspect has committed a crime