¶1dissenting'. I write in this case because I doubt it can withstand a test in the iederai courts (Allen v. United States, 404 F.2d 1335, 1336 (D. C. Cir. 1968)) and I do not think it can safely be relied upon in determining future police practices.
¶2The contention that Miranda’s requirements are limited to situations where the defendant’s custody creates an inherently coercive atmosphere was rejected in Orozco v. Texas, 394 U.S. 324, 22 L. Ed. 2d 311, 89 S. Ct. 1095 (1969) where the defendant was questioned in his own home. In that case an officer testified that from the moment defendant gave his name he was under arrest and not free to leave, although it does not appear that the defendant was so informed. The Supreme Court after recognizing that Miranda spoke of the isolated setting of the police station and its compulsive influence nevertheless stated, “But the opinion [Miranda\ iterated and reiterated the absolute necessity for officers interrogating people ‘in custody’ to give the described warnings, ” and that Miranda “ declared that the warnings were required when the person being interrogated was ‘ in custody at the station or otherwise deprived of his freedom of action in any significant way. ’ ” (Emphasis added in Orozco).
¶3Miranda states that the fifth amendment privilege protects “persons in all settings in which their freedom of action is curtailed. ” ( Emphasis added). Mathis v. United States, 391 U.S. 1, 20 L. Ed. 2d 381, 88 S. Ct. 1503 (1968) tells us that neither the fact that defendant is in familiar surroundings nor the reason why he is “in custody” in any way affects the requirements of the Miranda warnings. It is also clear that a person can be in custody or otherwise deprived of his freedom of action without any actual physical contact with the officer or confinement. Orozco v. Texas supra; Terry v. Ohio, 392 U.S. 1, 19 n.16, 20 L. Ed. 2d 889, 905 n.16, 88 S. Ct. 1868, 1879 n.16 (1968); Sibron v. New York, 392 U.S. 40, 63, 20 L. Ed. 2d 917, 935, 88 S. Ct. 1889, 1903 (1968).
¶4The fact that the question was asked at the scene does not relieve the officer of the requirement. Miranda in authorizing general on-the-scene investigations expressly specified “persons not under restraint. ” (Emphasis, added ). The defendant in this case was under arrest at the time he was questioned. It matters not for what he was arrested. Mathis v. United States supra. Being under arrest he was under restraint and in the custody of the officer. RSA 594:1. It is immaterial that the officer could *516later release him. The crucial point is his status at the time he was questioned. Being under restraint when questioned he was entitled to the Miranda warnings. Allen v. United States supra; State v. Shoffner, 31 Wis. 2d 412, 433, 143 N.W.2d 458, 468 (1966). Although it is immaterial whether he was later released, the record does not show he was in fact released. The reserved case simply states that “the officer then arranged to have the defendant transported to the hospital” and there was nothing to show that he was not still subject to the officer’s control.