FIRST DISTRICT APPELLATE PROJECT
TRAINING SEMINAR
January 21, 2011
MIRANDA BASICS AND CURRENT DEVELOPMENTS
Jonathan D. Soglin, Staff Attorney
Richelle Becker, Law Clerk
Tiffany Gates, Law Clerk
January 2011
Table of Contents
Page
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -1I.
Miranda . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -2A.
Miranda in a Nutshell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -2-
B.
Constitutionally Based; Not Merely Prophylactic . . . . . . . . . . . . . . . . . . . -2-
C.
Miranda Warnings Are Required When the Suspect is Subject to Custodial
Interrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -3-
D.
Custody for Miranda = Formal Arrest or Restraint on Movement to a
Degree Associated With Formal Arrest . . . . . . . . . . . . . . . . . . . . . . . . . . . . -3-
E.
Interrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -7-
F.
Exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -11-
G.
Form of Miranda Warnings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -13-
H.
Invocation or Waiver of Rights - Distinct Inquiries . . . . . . . . . . . . . . . . . -15-
I.
Invocation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -15-
J.
Waiver of Miranda Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -16-
K.
Consequences of Miranda Violation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -18-
L.
Showing Prejudice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -19-
M.
Federal Habeas Review Available . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -20-
INTRODUCTION
Two primary constitutional considerations govern the admissibility of defendants’
confessions and admissions in criminal prosecutions: the voluntariness of the
statements and whether they were obtained in violation of Miranda requirements.
The voluntariness jurisprudence, rooted in English common law, developed first, with
the Supreme Court holding that admission of coerced confessions was unconstitutional.
Although an early case based the rule barring admission of coerced confessions on the
Fifth Amendment right to remain silent, the Court primarily based the rule on due
process considerations. (Dickerson v. United States (2000) 530 U.S. 428, 432-434
(providing “historical account of the law governing the admission of confessions”);
Bram v. United States, 168 U.S. 532, 542 (stating voluntariness test is controlled by Fifth
Amendment); Brown v. Mississippi (1936) 297 U.S. 278 (coerced confession inadmissible
under Due Process Clause).)
In the 1960s, a pair of Warren Court decisions “changed the focus of much of the
inquiry in determining the admissibility of suspects’ incriminating statements.”
(Dickerson, 530 U.S. at 434.) First, the Court held that the Fifth Amendment right against
self incrimination is incorporated in the Fourteenth Amendment’s Due Process Clause
and thus applies to the states. (Malloy v. Hogan (1964) 378 U.S. 1, 6-11.) And, famously,
in Miranda, the Court held that a defendant’s statements made during custodial
interrogation are inadmissible in the prosecutor’s case in chief unless the officer advised
the suspect of his rights (detailed below) and the suspect voluntarily waived those
rights. (Miranda v. Arizona (1966) 384 U.S. 436.) Miranda, was presaged by Escobedo v.
Illinois (1964) 378 U.S. 478, in which the Court held that a suspect’s admissions were
inadmissible where, during custodial interrogation, the suspect had requested and been
denied the opportunity to consult an attorney and police officers had not properly
advised him of his right to remain silent.
In 2010, a trio of United States Supreme Court decisions modified or elaborated on
important aspects of Miranda law, thus precipitating these materials which outline both
the basics of and recent developments in Miranda law.
Note that Miranda is an expansive are of law with many aspects to it. It also the subject
of countless published decisions, many of which are very fact intensive. An outline like
this can only provide one reference point and research should never end here. Cases
cited herein are only representative.
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I.
MIRANDA
A.
Miranda in a Nutshell
A defendant’s own statements made during custodial interrogation by law enforcement
officials are inadmissible in the prosecutor’s case in chief unless (1) they were preceded
by warnings to the defendant that he has a right to remain silent, that any statement he
does make may be used as evidence against him, and that he has a right to the presence
of an attorney, either retained or appointed and (2) the defendant voluntarily waived
those rights:
“[T]he prosecution may not use statements, whether exculpatory or
inculpatory, stemming from custodial interrogation of the defendant
unless it demonstrates the use of procedural safeguards effective to secure
the privilege against self-incrimination. By custodial interrogation, we
mean questioning initiated by law enforcement officers after a person has
been taken into custody or otherwise deprived of his freedom of action in
any significant way. As for the procedural safeguards to be employed,
unless other fully effective means are devised to inform accused persons
of their right of silence and to assure a continuous opportunity to exercise
it, the following measures are required. Prior to any questioning, the
person must be warned that he has a right to remain silent, that any
statement he does make may be used as evidence against him, and that he
has a right to the presence of an attorney, either retained or appointed.
The defendant may waive effectuation of these rights, provided the
waiver is made voluntarily, knowingly and intelligently.”
(Miranda v. Arizona (1966) 384 U.S. 436, 444.)
Thus, the initial questions to be asked is whether the defendant was “in custody” and
whether the statements were made in response to “interrogation.” If there was no
custodial interrogation, Miranda does not apply. If there was custodial interrogation,
then the questions shift to whether and when the officer gave proper and complete
Miranda warnings and whether the suspect waived the Miranda rights.
B.
Constitutionally Based; Not Merely Prophylactic
Over the years, the Court “repeatedly referred to the Miranda warnings as
‘prophylactic.’ [citation] and ‘not themselves rights protected by the Constitution.’”
(Dickerson, 530 U.S. at 437-438.) Relying on such language, the Fourth Circuit had held
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in Dickerson that Miranda protections were not constitutionally required and indeed
superseded by a 1966 federal statute, 18 U.S.C. § 3501, which stated that confessions
shall be admissible in federal criminal prosecutions if they were voluntary. (United
States v. Dickerson (1999) 166 F.3d 667, 687-690.) The Supreme Court, in an opinion
authored by Chief Justice Rehnquist, reversed, holding that section 3501 could not
supersede Miranda because the Miranda protections are constitutionally required.
(Dickerson v. United States, 530 U.S. at 438-441.)
As evidence of the rule’s constitutional underpinnings, the Court pointed to the facts
that it had applied Miranda to state court prosecutions (530 U.S. at 438), it “had allowed
prisoners to bring alleged Miranda violation before the federal courts in habeas corpus
proceedings” (530 U.S. at 439, n.3), that Miranda itself had described the question before
it as involving the privilege against self-incrimination and the need “‘to give concrete
constitutional guideline for law enforcement agencies and courts to follow’” (530 U.S. at 439
[citing Miranda, 384 U.S. at 441-442] (emphasis added by Dickerson Court)), and the
Miranda opinion contains numerous statements indicating that the Court understood
itself to be “announcing a constitutional rule” (530 U.S. at 439, and n. 4).
The constitutional foundation of the Miranda protections is the Fifth Amendment
privilege against self-incrimination. (See e.g. Miranda, 384 U.S. at 476 (“The requirement
of warnings and waiver of rights is a fundamental with respect to the Fifth Amendment
privilege and not simply a preliminary ritual to existing methods of interrogation”);
Withrow v. Williams (1993) 507 U.S. 680, 692 (referring to the “Fifth Amendment ‘trial
right’ protected by Miranda); and Dickerson, 530 U.S. at 439, fn.4 (collecting references in
Miranda to protection of Fifth Amendment) and at 440, fn.5 (collecting citations to other
Supreme Court cases referring to Fifth Amendment underpinnings of Miranda).
C.
Miranda Warnings Are Required When the Suspect is Subject to Custodial
Interrogation.
Miranda warnings are required when an individual is subject to custodial interrogation.
(Miranda v. Arizona (1966) 384 U.S. 436, 439.) Custodial interrogation is “questioning
initiated by law enforcement officers after a person has been taken into custody or
otherwise deprived of his freedom of action in any significant way.” (Id. at p. 444.)
D.
Custody for Miranda = Formal Arrest or Restraint on Movement to a Degree
Associated With Formal Arrest
1.
Standard: When determining if a suspect is in custody, “the ultimate
inquiry is whether there is a ‘formal arrest or restraint on freedom of
movement’ of the degree associated with formal arrest.” (California v.
Beheler (1983) 463 U.S. 1121, 1125 (per curiam) (citing Oregon v. Mathiason
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(1977) 429 U.S. 492, 495).) The Court has described the test as inquiring
“would a reasonable person have felt he or she was not at liberty to
terminate the interrogation and leave.” (Thompson v. Keohane (1995) 516
U.S. 99, 112; see also Yarborough v. Alvarado (2004) 541 U.S. 652, 664-665
[citing Thompson v. Keohane and finding suspect was not in custody
because “All of these objective facts are consistent with an interrogation
environment in which a reasonable person would have felt free to
terminate the interview and leave”].)
2.
The custody determination is based on the totality of the circumstances.
(Stansbury v. California (1994) 511 U.S. 318, 322 (“In determining whether
an individual was in custody, a court must examine all of the
circumstances surrounding the interrogation ....”)
3.
Appellate Review: Custody Determination is a Mixed Question of Law and Fact
to Be Reviewed De Novo. (Thompson v. Keohane (1995) 516 U.S. 99, 113-114.)
4.
Custody status is an objective test: “[T]he initial determination of custody
depends on the objective circumstances of the interrogation, not on the
subjective views harbored by either the interrogating officers or the
person being questioned.” (Stansbury v. California (1994) 511 U.S. 318,
323.) “[A]n officer's views concerning the nature of an interrogation, or
beliefs concerning the potential culpability of the individual being
questioned, may be one among many factors that bear upon the
assessment whether that individual was in custody, but only if the
officer's views or beliefs were somehow manifested to the individual
under interrogation and would have affected how a reasonable person in
that position would perceive his or her freedom to leave.” (Id. at 325.)
5.
Factors
a.
Location: A suspect can be considered “in custody” even when not
at the police station. (E.g. Orozco v. Texas (1969) 394 U.S. 324, 327
(suspect was considered under arrest and in custody when
questioned in his bedroom in the early hours of the morning
because he was not free to leave).) Alternatively, a suspect can be
questioned at the police station, in a coercive environment, and still
not be considered “in custody,” as long as he is not placed under
formal arrest and his freedom of movement is not restricted in any
way. (E.g. Oregon v. Mathiason (1977) 429 U.S. 492 at 496 (where the
suspect voluntarily went to the police station, was told he was not
under arrest, and was allowed to leave after the police interview).)
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b.
Where Suspect is Already an Inmate, He or She May Not be “In
Custody” for Purposes of Miranda.
(1)
(2)
Prior to Maryland v. Shatzer (2010) ___ U.S. ___, 130 S.Ct.
1213, 1224, the Court had “never decided whether
incarceration constitutes custody for Miranda purposes. But
other courts, including California courts, had held that an
incarcerated suspect may not be “in custody.”
(a)
The Fourth Circuit held that Miranda did apply to
questioning of an inmate unless there had been a
“change in the surroundings of the prisoner which
results in an added imposition on his freedom of
movement.” (United States v. Conley (4th Cir. 1985) 779
F.2d 970, 973.)
(b)
California cases had described a broad-based test
considering multiple factors: “whether the language
summoning the defendant from his prison lodging
was coercive, whether the physical surroundings of
the questioning were unduly coercive, whether the
defendant was confronted with evidence of guilt, and
whether there was an opportunity given to this
person to leave the site of the questioning.” (People v.
Macklem (2007) 149 Cal.App.4th 674, 678; see also
People v. Fradiue (2000) 80 Cal.App.4th 15, 21.)
In Shatzer, the Court confronted the question in the context
of applying its new rule that a 14-day break in custody
ended the presumption that the resumption of questioning
by police was coercive. There being a two-and-a-half year
break between questioning sessions, the Court in Shatzer had
to determine there had been a break in Miranda custody.
Although the defendant had been in prison during the entire
period in question, the Court found that his release to the
general population constituted a break in custody for
purposes of Miranda. The Court reasoned that the coercive
pressures of concern in Miranda are not present when the
suspect is already in prison because (1) once the
interrogation ends, they regain the, albeit limited, control
they had over their lives, (2) they “are not isolated with their
accusers,” (3) “[t]heir detention ... is relatively disconnected
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from their prior unwillingness to cooperate in an
investigation,” and (4) “[t]he former interrogator has no
power to increase the duration of incarceration.” (130 S.Ct. at
1224-1225.)
(3)
c.
It is implicit in Shatzer, however, that a prisoner is in custody
for purposes of Miranda during the period when he is
removed from the general population and taken elsewhere
for questioning. (See 130 S.Ct. at 1225, fn.6 (“We distinguish
the duration of incarceration from the duration of what
might be termed interrogative custody. When a prisoner is
removed from the general prison population and taken to a
separate location for questioning, the duration of that
separation is assuredly dependent upon his interrogators.
For which reason once he has asserted a refusal to speak
without assistance of counsel Edwards prevents any efforts to
get him to change his mind during that interrogative
custody”) and Ibid. (referring to the “‘inherently compelling
pressures’ of custodial interrogation end[ing] when [Shatzer]
returned to his normal life” in the prison).)
Traffic Stops: Persons temporarily detained pursuant to roadside
traffic stops are not considered “in custody” because of the brief
and non-coercive nature of such stops. (Berkemer v. McCarty (1984)
468 U.S. 420, 437-440.) However, “[i]f a motorist is subject to
treatment that renders him ‘in custody’ for practical purposes, he
will be entitled to the full panoply of protections prescribed by
Miranda.” (Id. at 440.) Note: The Berkemer holding that a person
“detained” during a routine traffic is not “in custody” for purposes
of Miranda is in tension with the Court’s cases defining “detained”
and “in custody” with nearly identical language regarding the
suspect not feeling free to leave. (Compare United States v.
Mendenhall (1980) 446 U.S. 544, 554 (holding that “a person has been
‘seized’ within the meaning of the Fourth Amendment only if, in
view of all of the circumstances surrounding the incident, a
reasonable person would have believed that he was not free to
leave”) with Thompson v. Keohane, 516 U.S. at 112 (holding that
person is in custody for purposes of Miranda if “a reasonable
person” would “have felt he or she was not at liberty to terminate
the interrogation and leave”).)
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d.
Suspect’s Age or Experience with Law Enforcement
(1)
(2)
E.
Yarborough v. Alvarez (2004) 541 U.S. 652, 124 S.Ct. 2140
(decided under AEDPA):
(a)
Prior History With Law Enforcement. As a de novo
matter, consideration of suspect’s prior history with
law enforcement is an improper factor. Officers will
not likely know the suspect’s history. In addition, the
relationship between the past history and whether the
current encounter is custodial is speculative. And the
inquiry turns too much on the suspect’s subjective
state of mind. (541 U.S. at 668-669.)
(b)
Suspect’s Age. State court did not unreasonably
decline to consider the suspect’s age as a factor. “Our
opinions applying the Miranda custody test have not
mentioned the suspect's age, much less mandated its
consideration. The only indications in the Court's
opinions relevant to a suspect's experience with law
enforcement have rejected reliance on such factors.”
(541 U.S. at 666-667.)
J.D.B v. North Carolina, No. 09-11121, Cert. Granted
11/1/2010:
(a)
QP: Whether a court may consider a juvenile's age in
a Miranda custody analysis in evaluating the totality
of the circumstances and determining whether a
reasonable person in the juvenile's position would
have felt he or she was not free to terminate police
questioning and leave?
(b)
Note; J.D.B. is on direct review of a state court
decision, and thus will not be decided through
deferential AEDPA standards the Court applied in
Yarborough v. Alvarez.
Interrogation
1.
Miranda protections do not apply to “[v]olunteered statements.” (Miranda,
384 U.S. at 478; People v. Ray (1996) 13 Cal.4th 313, 337.)
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2.
Miranda warnings are only required when the suspect is subjected to
interrogation, which is defined as “express questioning or its functional
equivalent.” (Rhode Island v. Innis (1980) 446 U.S. 291, 300-301)
3.
In Innis, the Court defined the functional equivalent of express
questioning as “any words or actions on the part of the police (other than
those normally attendant to arrest and custody) that the police should
know are reasonably likely to elicit an incriminating response from the
suspect.” (Id. at 301; see also Arizona v. Mauro (1987) 481 U.S. 520, 526-527;
Pennsylvania v. Muniz (1990) 496 U.S. 582, 600-601.)
4.
In Innis, the Court seemed to clearly distinguish between “expressly
questioning” and the “functional equivalent” and to only require an
inquiry into whether the police conduct was reasonably likely to elicit an
incriminating response from the suspect if the case involved words or
actions, as opposed to express questioning. (446 U.S. at 301.) Some courts,
however, have held that even express questioning does not require
Miranda warnings unless the questioning is reasonably likely to elicit an
incriminating response. (See e.g. United States v. Bogle (D.C. Cir. 1997) 114
F.3d 1271, 1275 (collecting cases).) (In Muniz, the Court held that certain
express questions asked during the booking process were not subject to
Miranda. But this was not because the Court found such express questions
were not “interrogation,” but because the Court was recognizing a
“routine booking question” exception to Miranda for biographical data.
(Muniz, 496 U.S. at 601.))
5.
Functional equivalent: The functional equivalent of “express questioning”
can be “any words or actions on the part of the police (other than those
normally attendant to arrest and custody) that the police should know are
reasonably likely to elicit an incriminating response from the suspect. The
latter portion of this definition focuses primarily upon the perceptions of
the suspect, rather than the intent of the police. This focus reflects the fact
that the Miranda safeguards were designed to vest a suspect in custody
with an added measure of protection against coercive police practices,
without regard to objective proof of the underlying intent of the police. A
practice that the police should know is reasonably likely to evoke an
incriminating response from a suspect thus amounts to interrogation.”
(Innis, 446 U.S. at 301.) The determination of whether an officer’s
statement is the functional equivalent of interrogation is a highly factual
inquiry. A sampling of decisions are provided.
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6.
a.
In Innis, while the defendant was being transported to the police
station, one police officer said to another that he hoped police
would continue searching for the missing gun because a student
from a school for the disabled could pick it up and get hurt. (Innis,
446 U.S. at 294-295.) The defendant then volunteered the weapon's
location. The Supreme Court held this was not interrogation
because nothing from the record indicated the officers were aware
the defendant was particularly susceptible to an appeal to his
conscience. (Id. at 302.)
b.
In People v. Clark (1993) 5 Cal.4th 950, the defendant was being
transported to the hospital by the police to obtain a blood sample.
He had previously invoked his Miranda rights. He asked the
officers what the penalty was for the murder for which he was
under arrest, stating: “ ‘What can someone get for something like
this, thirty years?’ ” (Id. at 982.) The officer responded that he had
never seen anyone serve more than seven and a half years unless
the person was a “ ‘mass murderer.’ ” Following this exchange, the
defendant confessed. (Ibid.) The Court held that this conversation
did not constitute an interrogation: “Clearly, not all conversation
between an officer and a suspect constitutes interrogation. The
police may speak to a suspect in custody as long as the speech
would not reasonably be construed as calling for an incriminating
response.” (Id. at 985.)
c.
The California Supreme Court found no interrogation where
detectives told the defendant they “knew” he committed murder
because they found his prints at the scene. This brief statement was
not interrogation because it was not phrased as a question, and did
not call for an incriminating response. “A brief statement informing
an in-custody defendant about the evidence that is against him is
not the functional equivalent of interrogation because it is not the
type of statement likely to elicit an incriminating response.” (People
v. Haley (2004) 34 Cal.4th 283, 302.)
Miranda Only Applies to Interrogation by Law Enforcement Officials or
Their Agents.
a.
Miranda: “By custodial interrogation, we mean questioning initiated
by law enforcement officers ....” (384 U.S. at 444 (emphasis added).)
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b.
Miranda does not apply to questioning by undercover officers: A
police officer disguised as an inmate was not interrogating the
defendant when (deceptively) engaging him in conversation about
the murder he was suspected of. “It is the premise of Miranda that
the danger of coercion results from the interaction of custody and
official interrogation.” (Illinois v. Perkins (1990) 496 U.S. 292, 297.)
“Where the suspect does not know that he is speaking to a
government agent there is no reason to assume the possibility that
the suspect might feel coerced.” (Id. at 299.) In Perkins, the
defendant was serving a prison sentence on an unrelated crime
when the police sent in an undercover agent to investigate him for
a murder. (Id. at 295.) Since murder charges had not been filed,
Perkins’ right to counsel had not yet attached, allowing information
from his unwarned confession to be used against him. (Note that
the “government may not use an undercover agent to circumvent
the Sixth Amendment right to counsel once a suspect has been
charged with the crime,” so this situation may be anomalous. (Id.
at 299; cf. Massiah v. U.S. (1964) 377 U.S. 201, 207 (where
defendant’s incriminating statement to an informant could not be
used at trial because the conversation took place post-indictment
after his right to counsel attached).)
c.
Statements to Jailhouse Visitors - Miranda does not apply:
(1)
Officer’ s knowledge that allowing the visitor (defendant’s
wife) to see defendant might illicit an incriminatory
statement does not rise to the level of coercion or a
psychological ploy that Miranda protects against. (Arizona v.
Mauro (1987) 481 U.S. 520, 530.)
(2)
Defendant’s voluntary conversations with jailhouse visitor
(grandmother) were not the functional equivalent of
interrogation, even when detectives took the initiative to
bring the visitor to see the defendant and recorded the
conversation. (People v. Thornton (2007) 41 Cal.4th 391, 433.)
(3)
Where defendant had repeatedly asked to see his father,
defendant’s voluntary jailhouse conversation with his father
was not police interrogation subject to Miranda requirements
People v. Mayfield (1997) 14 Cal.4th 668, 758.)
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(4)
d.
F.
It is not improper for the police to grant defendant’s
relatives special visitation privileges on the unspoken hope
that defendant might incriminate himself. (People v. Medina
(1990) 51 Cal.3d 870, 892.)
Psychiatrists/Psychologists
(1)
Miranda applies to prosecutor’s psychiatrist (see e.g. People v.
Ghent (1987) 43 Cal.3d 739, 750);
(2)
Miranda requirements apply to statements to courtappointed psychiatrist made during competency
examination. In the absence of valid wavier, such statements
can only be used at competency hearing. (Estelle v. Smith
(1981) 451 U.S. 454, 466-469.) In Penry v. Johnson (2001) 532
U.S. 782, 794-795, a federal habeas case decided under
AEDPA, the Court found that the state court decision
finding no Fifth Amendment violation was not contrary to,
or unreasonable application of Estelle where the defendant
made his mental health an issue, the defendant’s own
counsel sought the psychiatric examination, the defendant
first elicited the challenged statement during examination of
his own witness, and the challenged statements were made
during a competency examination conducted during a prior
unrelated case and prior to the commission of the charged
offenses.
(3)
Miranda applies to civil investigator (Mathis v. United States
(1968) 391 U.S. 1 (IRA agents));
(4)
“[A] probationary defendant’s general obligation to appear
and answer questions truthfully does not convert otherwise
voluntary statements into compelled statements.” (People v.
Macias (1997) 16 Cal.4th 739, 755 (citing Minnesota v. Murphy
(1984) 465 U.S. 420, 431-435).)
Exceptions
1.
Booking Question:
a.
In Pennsylvania v. Muniz (1990) 496 U.S. 582, a four-justice plurality
recognized “a ‘routine booking question’ exception which exempts
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from Miranda's coverage questions to secure the ‘“biographical
data necessary to complete booking or pretrial services.”’” (Id. at
601, plur. opn. of Brennan, J.) However, this exception does not
include questions asked during booking “‘that are designed to elicit
incriminatory admissions.’” (Id. at 602, fn. 14.) In Muniz, where the
defendant had been tried and convicted of DUI, the Court held that
an answer to a question regarding the date of the defendant’s sixth
birthday was inadmissible (Id. at 600), but answers to questions
eliciting his name, address, height, weight, eye color, date of birth,
and current age were admissible (Id. at 601-602).
b.
2.
In People v. Morris (1987) 192 Cal.App.3d 380, a jailer asked a
defendant during booking, “Who are you accused of killing?,” and
received the answer, “I killed my sister-in-law.” ( Id. at p. 388.) The
jailer insisted his question was “solely for the purpose of jail
security and not to elicit information from defendant that might be
used against him.” ( Id.) The Court in Morris observed, “The focus
of our analysis is not what the police may lawfully ask a criminal
suspect to ensure jail security. The police may ask whatever the
needs of jail security dictate. However, when the police know or
should know that such an inquiry is reasonably likely to elicit an
incriminating response from the suspect, the suspect’s responses
are not admissible against him in a subsequent criminal proceeding
unless the initial inquiry has been preceded by Miranda
admonishments.” (Id. at 389-390.)
Public Safety:
a.
Police officers may ask incriminatory questions to a suspect when
public safety is at risk. (New York v. Quarles (1984) 467 U.S. 649, 657
(officer asked an apprehended rape suspect “where is the gun?”
after witnesses saw the suspect discard the gun in a grocery store,
placing the public in danger and creating immediate necessity of
finding the gun).
b.
In United States v. Carrillo (9th Cir. 1994) 16 F.3d 1046, the Ninth
Circuit held that the public safety exception applied to a pre-search
question regarding whether a detainee was in possession of drugs
or needles. (16 F.3d at 1049.) But in People v. Cressy (1996) 47
Cal.App.4th 981, then-Court of Appeal Justice Corrigan explained
that the public safety questions “must be narrowly tailored to
prevent potential harm” and “[q]uestions about needles or other
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potentially contaminated sharp objects would be permissible.” (47
Cal.App.4th at 989.) But, “[q]uestions about drugs in general, most
firearms or similar kinds of seizable, but not immediately
dangerous, items would fall outside this narrow exception.” (Id.) In
People v. Ross (2008) 162 Cal.App.4th 1184, 1187, 1191, the Court did
not reach any conclusion about the propriety of questions about
possession of drugs. In that case, the police officer found a knife but
no drugs. (Id. at 1187.) On appeal, the defendant only challenged
the police officers question about weapons: “[defendant] contends
that she had a Fifth Amendment right not to disclose her
possession of the knife” (Id. at 1191). The Court of Appeal, citing
the public safety exception to Miranda, held only that the police
officer “properly inquired whether she possessed any weapons.
(Ibid.) The court in Ross said nothing about propriety of questions
about drugs.
3.
G.
California’s Rescue Doctrine: The rescue doctrine is analogous to (but not
subsumed within) the public safety exception. This doctrine is
independent from the public safety exception because it pre-dates Quarles
and has its own test. (People v. Davis (2009) 46 Cal.4th 539, 592-593.) Also,
this doctrine applies specifically in kidnapping or missing-person cases,
“[u]nder circumstances of extreme emergency where the possibility of
saving the life of a missing victim exists, noncoercive questions may be
asked of a material witness in custody even though answers to the
questions may incriminate the witness.” (Id. at 594.) In Davis, suspect
Richard Allen Davis was in police custody for kidnapping Polly Klass,
and had invoked his Miranda rights. (Id. at 591.) Four days after invocation
of his right to remain silent and request for counsel, a detective reinititated contacted with Davis in jail, asking him to disclose where Polly’s
body was. (Id.) The Court ruled that the admission and evidence that
followed were admissible under the rescue doctrine, despite the fact that
Polly had been missing for 64 days, and in past cases the doctrine was
applied when the victim had been missing for a much shorter time. (Id. at
594.) “[T]he length of time a kidnap victim has been missing is not, by
itself, dispositive of whether a rescue is still reasonably possible.” (Id.)
Form of Miranda Warnings
1.
Elements of Warnings (see Miranda, 386 U.S. at 479.)
a.
“that he has the right to remain silent”
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2.
b.
“that anything he says can be used against him in a court of law,”
c.
“that he has the right to the presence of an attorney,” and
d.
“that if he cannot afford an attorney one will be appointed for him
prior to any questioning if he so desires.”
Warnings Need Not be Verbatim as Stated in Miranda.
a.
State court “erred in holding that the warnings were inadequate
simply because of the order in which they were given.” (California
v. Prysock (1981) 453 U.S. 355, 361.)
b.
The Court deemed the Miranda advice adequate where the Miranda
form stated, in part, that an attorney “will be appointed for you, if
you wish, if and when you go to court.” (Duckworth v. Eagan (1989)
492 U.S. 195, 198, 201.) The Court reasoned that the advice
(1) accurately described the procedure in that state, (2) Miranda
does not require that the jail have an attorney available on call to
advise prisoners and, thus, Miranda only requires that questioning
cease unless the suspect waives his rights. (Id. at 204.)
c.
“The four warnings Miranda requires are invariable, but this Court
has not dictated the words in which the essential information must
be conveyed. (Florida v. Powell (2010) 130 S.Ct. 1195, 1204.) In Powell,
the suspect was advised: “You have the right to remain silent. If
you give up the right to remain silent, anything you say can be
used against you in court. You have the right to talk to a lawyer before
answering any of our questions. If you cannot afford to hire a lawyer, one
will be appointed for you without cost and before any questioning. You
have the right to use any of these rights at any time you want
during this interview.” (130 S.Ct. at 1200 (emphasis added).)
Relying on Duckworth, the Court in Powell, found the advisements
sufficient, concluding that the suspect would not understand the
advice to mean that the he could consult an attorney before each
question but that he would be alone with the interrogators when
actually answering the questions. (Id. at 1205.) “In context ... the
term ‘before’ merely conveyed when Powell's right to an attorney
became effective-namely, before he answered any questions at all.
Nothing in the words used indicated that counsel's presence would
be restricted after the questioning commenced.” (Ibid.)
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H.
Invocation or Waiver of Rights: Distinct Inquiries. As explained in Berghuis v.
Thompkins (2010) 130 S.Ct. 2250, the invocation of Miranda rights is a distinct
inquiry from the question of whether there was a valid waiver of rights. In
Berghuis, the defendant argued separately that his statements were inadmissible
because he actually invoked his right to remain silent (130 S.Ct. at 2259) and
because any he did not voluntarily waive his right to remain silent (Id. at 22602261.) These are distinct questions: “ Even absent the accused's invocation of the
right to remain silent, the accused’s statement during a custodial interrogation is
inadmissible at trial unless the prosecution can establish that the accused ‘in fact
knowingly and voluntarily waived [Miranda] rights’ when making the
statement.” (Id. at 2260 (citing North Carolina v. Butler (1979) 441 U.S. 369, 373).)
I.
Invocation
1.
Right to Counsel.
a.
Once a suspect has requested counsel, interrogation must stop until
an attorney is provided, unless the suspect himself initiates further
communication. (See Edwards v. Arizona (1981) 451 U.S. 477, 484485.) Edwards rule not violated where suspect initiates the further
conversation. (Oregon v. Bradshaw (1983) 462 U.S. 1039, 1045-46
(plurality).)
b.
In order to receive Edwards protection, invocation of the right to
counsel must be unambiguous, or sufficiently clear that a
reasonable officer under the circumstances would understand that
the suspect is requesting an attorney. (Davis v. U.S. (1994) 512 U.S.
452, 459.) If a suspect’s request to have counsel present is
ambiguous or equivocal, the police are not required to stop
questioning or ask clarifying questions. (Davis, supra 512 U.S. 452
at 459.)
(1)
“Maybe I should talk to a Lawyer” - no invocation. (Id. at
455, 459)
(2)
“I think it'd probably be a good idea for me to get an
attorney” - no invocation (People v. Bacon (2010) 50 Cal.4th
1082, 1105.)
(3)
“if for anything you guys are going to charge me I want to
talk to a public defender too, for any little thing” - no
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invocation. (People v. Gonzalez (2005) 34 Cal.4th 1111, 1116,
1125-1127.)
2.
J.
c.
The Edwards Presumption: If further contact is initiated by police
after the suspect has invoked his right to have counsel present, it is
presumed that any subsequent waiver is involuntary. (Edwards,
451 U.S. at 485; Arizona v. Roberson (1988) 486 U.S. 675, 681.)
d.
Maryland v. Shatzer’s 14-day Shelf-Life of Edward’s Presumption. In
2010, the Court held that the Edwards presumption does not apply
when there has been a 14 day break in custody. (Maryland v. Shatzer
(2010) ___ U.S. ___, 130 S.Ct. 1213, 1223.) In Shatzer, the defendant
had been in prison custody on an unrelated offense. He refused to
talk to investigators without an attorney present. Over two years
later, another police officer questioned the defendant about the
same events about which the defendant had previously invoked
Miranda. Under the old Edwards rule, the defendant’s waiver of
Miranda rights would be presumed to be involuntary because the
conversation was at the behest of law enforcement. However, the
Court fashioned a new rule, holding that when there has been a
14-day break in custody, the Edwards presumption ends. In this
instance, a “break in custody” of two and a half years had occurred,
despite the fact that the defendant remained in prison custody on
an unrelated offense the entire time. (Ibid. at 1217-1219.)
Right to Remain Silent: The Supreme Court recently held that, like the
requirement of an unequivocal invocation of the right to counsel (Davis,
512 U.S. at 459), the invocation of the right to remain silent must also be
unambiguous. (Berghuis v. Thompkins, supra, 130 S. Ct. 2250 at 2260.)
Requiring a suspect to unambiguously assert his right to remain silent is
designed to remove the burden on law enforcement inherent in having to
“guess” at whether a suspect is invoking his Miranda rights or not. (Id.) In
Berghuis, the defendant did not unambiguously invoke his right to remain
silent “by not saying anything for a sufficient period of time.” (Id. at 22592260.)
Waiver of Miranda Rights
1.
A suspect may waive his Miranda rights so long as his waiver is made
voluntarily, knowingly, and intelligently. (Miranda, 384 U.S. at 444.) The
Court “reassert[ed]” the “high standards of proof for the waiver of
constitutional rights.” (Id. at 475 (citing Johnson v. Zerbst (1938) 304 U.S.
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458, 464 (defining waiver as “intentional relinquishment or abandonment
of a known right or privilege”)).)
2.
A “heavy burden” is on the prosecution to establish that the defendant
knowingly and intelligently waived his or her rights. (Id. at 475.)
3.
A waiver is valid if, under a “totality of circumstances” test, the court
finds “both an uncoerced choice and the requisite level of
comprehension.” (Moran v. Burbine (1986) 475 U.S. 412, 421.) The inquiry
into the facts and circumstances of the case may include the “background,
experience, and conduct of the accused.” (Zerbst, 304 U.S. 458 at 464.) The
state’s burden to establish waiver is by a preponderance of the evidence.
(Berghuis v. Thompkins (2010) 130 S.Ct. 2250, 2261.) “[T]he relinquishment
of the right must have been voluntary in the sense that it was the product
of a free and deliberate choice rather than intimidation, coercion, or
deception.” (Burbine, supra, 475 U.S. 412 at 421.) “[T]he waiver must have
been made with a full awareness of both the nature of the right being
abandoned and the consequences of the decision to abandon it.” (Id.)
4.
Express v. Implied Waiver
a.
Express: “An express written or oral statement of waiver of the right
to remain silent or of the right to counsel is usually strong proof of
the validity of that waiver, but is not inevitably either necessary or
sufficient to establish waiver. The question is not one of form, but
rather whether the defendant in fact knowingly and voluntarily
waived the rights delineated in the Miranda case.” (North Carolina v.
Butler (1979) 441 U.S. 369, 373.)
b.
Implied: “In some cases waiver can be clearly inferred from the
actions and words of the person being interrogated.” (Id. at 374)
The Miranda court held “a valid waiver will not be presumed
simply from the silence of the accused after warnings are given.....”
(Miranda, 384 U.S. 436 at 475), while Butler clarified that silence can
constitute waiver when coupled with an understanding of the
rights and a course of conduct indicating waiver. (Butler, 441 U.S.
369 at 373.) The giving of proper Miranda warnings coupled with an
uncoerced statement, is insufficient to establish a waiver of Miranda
rights. (Berghuis, 130 S.Ct. at 2261.) The prosecution must also show
that the suspect understood his or her rights. (Id.)
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c.
K.
In Berghuis, the court recently found an implicit and valid waiver of
Miranda when a suspect made only a few verbal responses and
occasionally nodded his head over the course of a three-hour
interrogation. (Thompkins, supra, 130 S.Ct. 2250 at 2257.) The Court
held the suspect “engaged in a course of conduct indicating
waiver” by not clearly invoking Miranda, not remaining completely
silent, and by not offering any evidence that he did not understand
the written copy of his Miranda rights provided to him by officers.
(Id. at 2262.)
Consequences of Miranda Violation
1.
Inadmissible in Case in Chief. Statements elicited in violation of Miranda
are inadmissible in the prosecution's case-in-chief. (See Stansbury v.
California (1994) 511 U.S. 318, 322 (per curiam).)
2.
May be Used to Impeachment:
a.
A statement taken in violation of Miranda may not be admissible
against a defendant in the prosecutions case-in-chief, but the
statement can be used to impeach the defendant if he chooses to
testify. This exception was designed to prevent Miranda from being
used a shield when committing perjury. (Harris v. New York (1971)
401 U.S. 222, 225; Michigan v. Harvey (1990) 494 U.S. 344 346.)
b.
If a suspect, after given proper Miranda warnings, opts to exercise
his right to remain silent, “it would be fundamentally unfair and a
deprivation of due process to allow the arrested person's silence to
be used to impeach an explanation subsequently offered at trial.”
Doyle v. Ohio (1976) 426 U.S. 610, 618.)
3.
Physical Fruits Not Suppressed: failure to give Miranda warnings does not
require suppression of physical fruits of unwarned voluntary statements.
(United States v. Patane (2004) 542 U.S. 630, 636-637.)
4.
Subsequent Statements: A warned subsequent statement made after an
unwarned statement may be admissible, although the unwarned
statement must be suppressed.
a.
In Oregon v. Elstad (1985) 470 U.S. 298, 300, the Court rejected
application of the Wong Sun v. United States (1963) 371 U.S. 471,
fruit-of-the-poisonous-tree doctrine in analyzing the admissibility
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of subsequent warned statements made after unwarned statements.
Subsequent statements are analyzed solely on the basis of whether
they are knowing and voluntary. (470 U.S. at 309.) “[A] suspect
who has once responded to unwarned yet uncoercive questioning
is not thereby disabled from waiving his rights and confessing after
he has been given the requisite Miranda warnings.” (470 U.S. at
318.)
b.
L.
Missouri v. Seibert (2004) 542 U.S. 600: two-step interrogations can
violate Miranda.
(1)
In Seibert, the officers intentionally interrogated the suspect
without Miranda warnings. After the suspect confessed, the
officer’s Mirandized him, obtained a waiver, and the
defendant again confessed. A majority of the Court found
this process to violate Miranda.
(2)
Although the Supreme Court was fractured on this point,
most lower courts read Seibert to hold that the second
statement is inadmissible under Miranda only if there was a
deliberate intent to evade the Miranda requirements in
connection with the first statement. (See e.g. People v. Rios
(2009) 179 Cal.App.4th 491, 505 (“Although the plurality
would consider all two-stage interrogations eligible for a
Seibert inquiry, Justice Kennedy's opinion narrowed the
Seibert exception to those cases involving deliberate use of
the two-step procedure to weaken Miranda's protections”);
People v. Camino (2010) 188 Cal.App.4th 1359, 1369, pet. for
rev. pending in No. S187857; United States v. Williams (9th
Cir. 2006) 435 F.3d 1148, 1157; but see United States v.
Carrizales-Toledo (10th Cir.2006) 454 F.3d 1142; see also
Weisselberg, Mourning Miranda, 96 Cal. L. Rev. 1519, 1549-52
(2008) (collecting cases).)
(3)
Standard of review for question of whether two-step
interrogation was deliberate. (Camino, 188 Cal.App.4th at
1371-1372 (factual inquiry subject to “substantial evidence”
test).)
Showing Prejudice: Admission of evidence in violation of Miranda is reversible
unless the prosecution can show the error was harmless beyond a reasonable
doubt. (People v. Samayoa (1997) 15 Cal.4th 795, 831; People v. Johnson (1993) 6
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Cal.4th 1, 33 (citing Arizona v. Fulminante (1991) 499 U.S. 279, 309 and Chapman v.
California (1967) 386 U.S. 18, 24).)
M.
Federal Habeas Review Available. In Stone v. Powell (1976) 428 U.S. 465, the
Court federal habeas review of Fourth Amendment claims is not available if the
defendant had a full and fair chance to litigate the claim in state court. “Stone's
restriction on the exercise of federal habeas jurisdiction does not extend to a state
prisoner's claim that his conviction rests on statements obtained in violation of
the safeguards mandated by Miranda v. Arizona (1966) 384 U.S. 436.” (Withrow v.
Williams (1993) 507 U.S. 680, 682-683.)
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