By: Undisputed Legal/Court Service Department
- Police questioned arrested person at police station for four hours until he confessed. The court was concerned about psychological coercion. Escobedo v. Illinois, 378 U.S. 478 (1964).
- Officers agreed to drop some charges if suspect would confess to kidnaping. Suspect agreed and confessed. He was convicted of kidnapping and rape. Conviction overturned by court. Miranda v. Arizona, 384 U.S. 436 (1966).
a. Court announces rule requiring people who are taken into custody to be advised of certain rights/warnings:
• that he has the right to remain silent
- that any statement he does make can and will be used as evidence against him in a court of law
- that he has the right to consult with counsel before answering any questions
- that he has the right to have his counsel present during the interrogation
- that if he cannot afford an attorney, one will be appointed for him without cost to him, prior to questioning, if he so desires.
State v. Creach, 77 Wn.2d 194, 199, 461 P.2d 329 (1969).
3. Congress promptly enacted a law designed to supersede the Miranda requirement. It was not until 2000, that the United States Supreme Court declared that the rule announced in Miranda is a constitutional rule that cannot be superseded by legislation. Dickerson v. United States, 530 U.S. 428, 120 S. Ct. 2326, 147 L. Ed. 2d 405 (2000).
C. Miranda Warnings
1. The actual warnings given need not track the language of Miranda word for word, nor must they parrot the language in State v. Creach. See Florida v. Powell, __ U.S. __, 130 S. Ct. 1195, 1203, 175 L. Ed. 2d 1009 (2010) (“The four warnings Miranda requires are invariable, but this Court has not dictated the words in which the essential information must be conveyed.”). In determining whether police officers adequately conveyed the four warnings, the Supreme Court applies a common sense approach, instead of a legalistic one. “The inquiry is simply whether the warnings reasonably ‘conve[y] to [a suspect] his rights as required by Miranda.” Id.
a. Most Washington Miranda warnings include additional information for juveniles:
If you are under the age of 18, anything you say can be used against you in a Juvenile Court prosecution for a juvenile offense and can also be used against you in an adult court criminal prosecution if the juvenile court decides that you are to be tried as an adult.
These additional juvenile warnings do not invalidate the Miranda warning. The absence of any language indicating that a defendant may appear in adult court without a juvenile court declination hearing does not invalidate a juvenile arrestee’s waiver of the rights. State v. Campos-Cerna, 154 Wn. App. 702, 226 P.3d 185, review denied, 169 Wn.2d 1021 (2010).
2. The warnings are only necessary when the person asking the questions is a representative of the State or a person acting as an agent of the State. A “representative of the State” includes individuals other than law enforcement officers. See State v. Heritage, 152 Wn.2d 210, 95 P.3d 345 (2004) (park bicycle security officers, city employees who were not commissioned police officers, must give Miranda warnings if conducting custodial interrogation).
a. A defendant’s Miranda rights can be violated only by the State or a person acting as an agent of the State. State v. Cadena, 74 Wn.2d 185, 190-93, 443 P.2d 826 (1968), overruled on other grounds in State v. Gosby, 85 Wn.2d 758, 767, 539 P.2d 680 (1975); State v. Peerson, 62 Wn. App. 755, 816 P.2d 43 (1991), review denied, 118 Wn.2d 1012 (1992); State v. Brooks, 38 Wn. App. 256, 261-62, 684 P.2d 1371, review denied, 103 Wn.2d 1005 (1984).
3. The warnings are not required whenever a police officer asks questions. Examples of When Miranda Warnings Are Not Necessary
- When administering field sobriety tests to a DUI suspect. Heinemann v. Whitman County, 105 Wn.2d 796, 718 P.2d 789 (1986).
- When a suspect has been stopped on reasonable suspicion for an investigation (Terry stop). See, e.g. State v. Heritage, 152 Wn.2d 210, 95 P.3d 345 (2004); State v. Marshall, 47 Wn. App. 322 (1987).
- When a suspect is being asked to consent to a search. (But, Miranda warnings will be considered in determining the voluntariness of the consent.)
- When suspect comes to the police station on his or her own initiative and the person is free to leave.
- Persons voluntarily accompanying police to the police station as material witnesses are not under custodial interrogation if their freedom of action is not curtailed to a degree associated with a formal arrest. See State v. Green, 91 Wn.2d 431, 94 Wn.2d 216, 588 P.2d 1370, 616 P.2d 628 (1980); State v. Grogan, 147 Wn. App. 511, 195 P.3d 1017 (2008),, review granted and case remanded, 168 Wn.2d 1039 (2010), reaff’d on reconsideration, 158 Wn. App. 272, 246 P.3d 196 (2010), review denied, 171 Wn.2d 1006 (2011).
- Questioning an individual who has not yet been arrested at his or her workplace or home.
- Telephone conversations. State v. Denton, 58 Wn. App. 251, 792 P.2d 537 (1990); Saleh v. Fleming, 512 F.3d 548 (9th Cir. 2008) (call to investigators that was initiated by a suspect who was in jail for an unrelated offense).
- Exchanges with barricaded individuals. State v. Pesa, 75 Wn. App. 139, 876 P.2d 963 (1994), review denied, 125 Wn.2d 1015 (1995).
- When suspect is taken into custody but no interrogation is anticipated. Note: CrR 3.1/CrRLJ 3.1 warnings must still be given in these circumstances.
- When compelling the production of physical evidence such as fingerprints, handwriting samples, blood samples, urine, or line-ups.
- Routine inquiries by a guard concerning the security status of prisoners. Kemp v. Ryan, 638 F.3d 1245 (9th Cir.), cert. denied, 132 S. Ct. 553 ( 2011).
4. Procedural issues.
a. Warnings must be given to suspect in a language that the suspect can understand. Utilize an interpreter when necessary.
i. Be aware that the use of an uncertified interpreter during a police interrogation may render any statements made by the defendant inadmissible for any purpose, including impeachment. See State v. Gonzalez-Hernandez, 122 Wn. App. 53, 92 P.3d 789 (2004).
- When warnings are read to a suspect by an interpreter, the State must demonstrate that the interpreter actually read the warnings correctly. This requirement can be met by the testimony of the interpreter, the testimony of a witness who also understands the language the interpreter spoke, or by a tape recording of the interaction coupled with the in court testimony of a competent interpreter. Cf. State v. Morales, 173 Wn.2d 560, 269 P.3d 263 (2012) (stating rule applicable to the statutorily required implied consent warnings).
When using an interpreter, a prudent officer will make every possible effort to videotape or otherwise record the interview. Police, however, are not required to electronically record any custodial interrogations in Washington. See State v. Turner, 145 Wn. App. 899, 187 P.3d 835 (2008), review denied, 165 Wn.2d 1016 (2009).
- The Yakima County Prosecuting Attorney’s web site contains a Spanish translation of Miranda and the DUI warnings? These are recordings of the 2009 DUI Arrest Report form. http://www.yakimacounty.us/pa/Miscellaneous/Spanish%2 0Rights.html (last visited (June 13, 2012).
b. Departmental issued cards forms should be utilized.
i. Departmental issued cards are updated frequently to comply with current case law and to respond to current challenges. Officers should make sure they have the most current version of the warnings in their possession. Officers should not deviate from the language on the card. See Doody v. Ryan, 649 F.3d 986 (9th Cir.), cert. denied, 132 S. Ct. 414 (2011) (Miranda warnings were “defective” where the officer deviated from the language of the form).
• The portion of the warnings that is specific to juveniles is not mandatory. A juvenile offender need not be advised that he may be tried in superior court rather than juvenile court. State v. Miller, 165 Wn. App. 385, 267 P.3d 524 (2011), review denied, 173 Wn.2d 1035 (2012). Thus if an officer omits the juvenile language on the grounds that the suspect is over the age of 18, and the suspect is actually younger, this omission will not render the warnings “defective.”
- The warnings need not be administered by the officer who actually engages in the questioning or by an officer from the same department as the officer who engages in the questioning so long as the warnings are given by a law enforcement agent prior to the start of questioning. See, e.g., United States v. Banner, 356 F.3d 478 (2nd Cir. 2004); . United States v. Andaverde, 64 F.3d 1305, 1313 (9th Cir. 1995) (repeat of warnings not required even though suspect had been moved to a different room and faced a new interrogator).
- Warnings must be read slowly enough to be understood.
- Some warning cards, such as the one that appears below, incorporate the CrR 3.1/CrRLJ 3.1 warnings.
YOUR CONSTITUTIONAL RIGHTS – MIRANDA WARNING
- You have the right to remain silent.
- You have the right at this time to an attorney.
- Anything you say can and will be used against you in a court of law.
- If you are under the age of 18, anything you say can be used against you in a Juvenile Court prosecution
for a juvenile offense and can also be used against you in an adult court criminal prosecution if the
juvenile court decides that you are to be tried as an adult.
- You have the right to talk to an attorney before answering any questions.
- You have the right to have an attorney present during the questioning.
- If you cannot afford an attorney, one will be appointed for you without cost, if you so desire.
- You can exercise these rights at any time.
- Do you understand these rights?
Having been informed of these rights, do you wish to talk with me? If the answer is YES, then ask: Have any threats or promises been made to you to convince you to waive your rights?
c. Warnings may become “stale”.
i. When resuming interrogation of a suspect who previously waived his or her Miranda rights, it is preferable to re-advise the suspect of his or her Miranda rights. There is, however, no need to rewarn suspects from time to time during a single lengthy interrogation. Berghuis v. Thompkins, ___ U.S. ___, 130 S. Ct. 2250, 2263, 176 L. Ed. 2d 1098 (2010).
ii. Whether prior warnings have become “stale” is judged under a totality of the circumstances approach. United States v. Rodriquez-Preciado, 399 F.3d 1118, 1128 (9th Cir. 2005).
iii. Statements made more than 15 hours after advising the suspect of his or her Miranda warnings have been found to be admissible. See, e.g., United States v. Rodriquez-Preciado, 398 F.3d 1118, 1128 (9th Cir. 2005) (interval of 16 hours); Puplampu v. United States, 422 F.2d 870 (9th Cir. 1970) (interval of two days); Maguire v. United States, 396 F.2d 327, 331 (9th Cir. 1968) (interval of three days); State v. Blanchey, 75 Wn.2d 926, 454 P.2d 841 (1969), cert. denied, 396 U.S. 1045 (1970)(interval of four days).
d. Do not “downplay” the significance of the warnings.
Miranda warnings were rendered defective by the officer’s deviation from a simple reading of the accurate Miranda waiver form and by the officer’s statements that the warnings were mutually beneficial. See Doody v. Ryan,
649 F.3d 986 (9th Cir. 2011). The Doody court found the following statements to the 17-year-old suspect to be problematic: “It’s only something for, for your benefit and for our benefit, okay”; “[A]ll it is, is its [sic] something that’s ah for your benefit, as well as four our’s [sic], okay”; “it’s for your benefit, it’s for your protection and for our’s [sic] as well okay?”
D. Custodial Interrogation
1. Miranda Rights are only triggered when a suspect is “in custody” and is subjected to “interrogation”.
Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him “in custody.” It was that sort of coercive environment to which Miranda by its terms was made applicable, and to which it is limited.
Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 50 L.Ed.2d 714 (1977).
- Officers may speak to a person who may be a suspect without implicating Miranda as long as that person remains free to leave if he refuses to cooperate.
- Whether the officer has probable cause to arrest a suspect is irrelevant to whether the officer was required to administer Miranda warnings if the suspect’s freedom of movement has not been curtailed to the extent associated with formal arrest. See, e.g., State v. McWatters, 63 Wn. App. 911, 915, 822 P.2d 787, review denied, 119 Wn.2d 1012 (1992).
- There is no court requirement that a suspect be given Miranda warnings when probable cause has been reached if there is no formal arrest. See, e.g., State v. McWatters, 63 Wn. App. 911, 822 P.2d 787, review denied, 119 Wn.2d 1012 (1992).
- An officer may question a suspect without Miranda even after the officer has probable cause, as long as the suspect’s freedom of movement has not been curtailed to the extent associated with formal arrest. See,e.g.,Statev.Short,113Wn.2d35,40-41,775P.2d975 (1989) (explaining that the rule in Washington is coextensive with the rule announced in Berkemer v. McCarty, 468 U. S. 420, 82 L. Ed.2d 317, 335, 104 S. Ct. 3138 (1984), and earlier Washington decisions that utilized a probable cause test are no longer binding); State v. McWatters, 63 Wn. App. 911, 915, 822 P.2d 787, review denied, 119 Wn.2d 1012 (1992).
iii. There is no requirement that an officer make an arrest as soon as probable cause is present so that constitutional protections are triggered at the earliest possible moment. Statements made pre-arrest in answer to questions are not subject to suppression solely because the judge thinks it was not sporting to provide Miranda warnings prior to the defendant incriminating himself. See Hoffa v. United States, 385 U.S. 293, 310, 87 S. Ct. 408, 17 L. Ed. 2d 374 (1966); United States v. Wynne, 993 F.2d 760 (10th Cir. 1993).
2. “Custody” means:
- The suspect has been placed under arrest, or the suspect’s freedom of action or movement has been curtailed to a degree associated with formal arrest. State v. Harris, 106 Wn.2d 784 (1986).
- A barricaded individual is not in custody for Miranda purposes. State v. Pesa, 75 Wn. App. 139, 876 P.2d 963 (1994), review denied, 125 Wn.2d 1015 (1995).
- A suspect who, due to injuries, is confined to a hospital bed at the time of the interview is not “in custody”. State v. Butler, 165 Wn. App. 820, 269 P.3d 315 (2012).
- “In custody” and “seizure” or “seized” (not free to leave) are not the same.
i. “Seizure” means “not free to leave.” A Terry detention is a seizure, but not an arrest.
- A person who is only subjected to a Terry routine investigative stop need not be given Miranda warnings prior to questioning. State v. Phu v. Huynh, 49 Wn. App. 192, 201, 742 P.2d 160 (1987).
- Even the fact that a suspect is not “free to leave” during the course of a Terry or investigative stop does not make the encounter comparable to a formal arrest for Miranda purposes. State v. Walton, 67 Wn. App. 127, 130, 834 P.2d
624 (1992). This is because an investigative encounter, unlike a formal arrest, is not inherently coercive since the detention is presumptively temporary and brief, relatively less “police dominated,” and does not lend itself to deceptive interrogation tactics. State v. Cunningham, 116 Wn. App. 219, 228, 65 P.3d 325 (2003); Walton, 67 Wn. App. At 130.
C. Miranda warnings are required when a temporary detention ripens into a custodial interrogation. State v. Templeton, 148 Wn.2d 193, 208, 59 P.3d 632 (2002);State v. King, 89 Wn. App. 612, 624-25, 949 P.2d 856 (1998) (“Because a Terry stop is not a custodial interrogation, an officer making a Terry stop need not give the Miranda warnings before asking the detainee to identify himself.”); State v. D.R., 84 Wn. App. 832, 836, 930 P.2d 350, review denied, 132 Wn.2d 1015 (1997) (Miranda safeguards apply as soon as a suspect’s freedom of action is curtailed to a degree associated with formal arrest).
A temporary detention does not ripen into a custodial interrogation simply because officers have probable cause to arrest the suspect. See State v. Short, 113 Wn.2d 35, 40-41, 775 P.2d 458 (1989); State v. Ustimenko, 137 Wn. App. 109, 151 P.3d 256 (2007). Because there is no constitutional right to be arrested, a suspect cannot complain that officers postponed arresting him in order to obtain more incriminating statements or other evidence against him. Hoffa v. United States, 385 U.S. 293, 310, 87 S. Ct. 408, 417, 17 L. Ed. 2d 374 (1966); United States v. Wynne, 993 F.2d 760, 765 (10th Cir. 1993); Koran v. United States, 469 F.2d 1071, 1071-72 (5th Cir. 1972).
Unfortunately, many trial court judges erroneously apply the repudiated probable cause test, and a fairly recent Division Two case further muddied the waters. See State v. France, 129 Wn. App. 907, 120 P.3d ( 2005) petition for review granted and remanded for reconsideration in light of State v. Hilliard, 89 Wn.2d 430, 573 P.2d 22 (1977) (Miranda warnings were required because the officer’s had probable cause to make an arrest but delayed doing so to circumvent Miranda requirements).
If questions asked during a Terry detention elicit incriminating answers, Division II of the Court of Appeals may suppress the statements if Miranda warnings were not
provided. See State v. France, 129 Wn. App. 907, 120 P.3d (2005) (Miranda warnings were required because the officer’s had probable cause to make an arrest but delayed doing so to circumvent Miranda requirements); State v. France, 121 Wn. App. 394, 88 P.3d 1003 (2004), petition for review granted and remanded for reconsideration in light of State v. Hilliard, 89 Wn.2d 430, 573 P.2d 22 (1977), and State v. Heritage, 152 Wn.2d 210, 214, 95 P.3d 345 (2004), 153 Wn.2d 1008 (2005); contra State v. Heritage, 152 Wn.2d210, 95 P.3d 345 (2004); and State v. Ustimenko, 137 Wn. App. 109, 151 P.3d 256 (2007).
This passage from State v. Heritage identifies the error in Division II’s analysis:
Whether a defendant was in custody for Miranda purposes depends on “whether the suspect reasonably supposed his freedom of action was curtailed.” State v. Short, 113 Wn.2d 35, 41, 775 P.2d 458 (1989) (citing State v. Watkins, 53 Wn. App. 264, 274, 766 P.2d 484 (1989)); see Berkemer, 468 U.S. at 442, 104 S. Ct. 3138 (“[T]he only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation.”). It thus is irrelevant whether the police had probable cause to arrest the defendant, Harris, 106 Wn.2d at 789-90, 725 P.2d 975 (citing Berkemer, 468 U.S. at 442, 104 S. Ct. 3138); whether the defendant was a “focus” of the police investigation, Beckwith v. United States, 425 U.S. 341, 347, 96 S. Ct. 1612, 48 L.Ed.2d 1 (1976); whether the officer subjectively believed the suspect was or was not in custody, Berkemer, 468 U.S. at 442, 104 S. Ct. 3138; or even whether the defendant was or was not psychologically intimidated, Sargent, 111 Wn.2d at 649, 762 P.2d 1127.
State v. Heritage, 114 Wn. App. 591, 598-99, 61 P.3d 1190 (2002), aff’d, 152 Wn.2d 210, 95 P.3d 345 (2004).
On remand, Division II affirmed the defendant’s conviction. See State v. France, 129 Wn. App. 907, 120 P.3d 654 (2005).
Division II acknowledged that the “Supreme Court reiterated the test for determining whether police contact was a custodial interrogation stating ‘whether a reasonable person in a suspect’s position would have felt that his or her freedom was curtailed to the degree associated with a formal arrest.’” France, 129 Wn. App. at 910 (quoting State v. Heritage, 152 Wn.2d 210, 218, 95 P.3d 345 (2004). Division II, nonetheless, held that the questioning of France without Miranda warnings was improper as it occurred “after police told him that he could not leave until the matter was cleared up, its duration was open-ended and because police had probable cause to arrest France.” France, 129 Wn. App. At 910-11. Division II’s continued reliance on the existence of probable cause indicates that the court has not completely embraced the modern rule that was reaffirmed in Heritage.
- “In custody” often means the suspect has been cuffed and is in a secure environment, even if not actually arrested.
- “In custody” for purposes of Miranda means freedom of action curtailed to a degree associated with formal arrest. Berkemer v. McCarty, 468 U.S. 420 (1984).
- A person is not placed in the functional equivalent of custody for Miranda purposes simply because that person is the focus of a criminal investigation and is being questioned by authorities. Beckwith v. United States, 425 U.S. 341, 346-48, 48 L. Ed. 2d 1, 96 S. Ct. 1612 (1976).
A police officer’s “unarticulated plan has no bearing on the question whether a suspect was ‘in custody’ at a particular time.” State v. Solomon, 114 Wn. App. 781, 790, 60 P.3d 1215 (2002), review denied, 149 Wn.2d 1025 (2003), citing Berkemer v. McCarthy, 468 U.S. 420, 442 (1984).
Whether a person has been restrained by a police officer must be determined based upon the interaction between the person and the officer. State v. O’Neill, 148 Wn.2d 564, 574, 62 P.3d 489, 495 (2003) citing State v. Knox, 86 Wn. App. 831, 839, 939 P.2d 710 (1997) (subjective intent of police is irrelevant to the question whether a seizure occurred unless it is conveyed to the defendant). The nature of the officer’s subjective suspicion is generally irrelevant to the question whether a seizure has occurred. O’Neill, 148 Wn.2d at 575.
c. Suspect is “in custody” when arrested, taken into full custody, or otherwise deprived of his or her freedom of action in a “significant way.” State v. McWatters, 63 Wn. App. 911, 822 P.2d 787, review denied, 119 Wn.2d 1012 (1992).
- Incarcerated defendants are only “in custody” for purposes of Miranda when they are subjected to more than just the normal restrictions on freedom incident to incarceration. See State v. Warner, 125 Wn.2d 876, 885, 889 P.2d 479 (1995) (juvenile offender was not “in custody” when he made statements within the context of a sex offender treatment program at DJR’s Maple Lane center); State v. Post, 118 Wn.2d 596, 826 P.2d 172 (1992) (defendant who was on work release not “in custody” when he made statements to a prison psychologist). Accord Howes v. Fields, ___ U.S. ___, 132 S. Ct. 1181, 182 L. Ed. 2d 17 (2012) (an inmate, who is questioned in prison about events in the outside world, is not necessarily “in custody” for Miranda purposes); Maryland v. Shatzer, ___ U.S. ___, 130 S. Ct. 1213, 175 L. Ed. 2d 1045 (2010) (incarceration does not constitute custody for Miranda purposes; a prisoner, who is removed from the general population and taken to a separate location for questioning, is in custody for Miranda purposes).
- Factors to be considered in deciding whether someone is “in custody”:
- the place of the interrogation
- whether the interrogation is conducted during normal business hours or is conducted at an odd hour of the night
- the presence of friends, relatives or neutral persons at the interview
- the presence or absence of fingerprinting, photographing, and other booking procedures
- telling a suspect that s/he is under arrest
- the length and mode of the interrogation
- the existence or probable cause to make the arrest
- Ferguson, 12 Wash. Prac., Criminal Practice and Procedure § 3309, at 858- 59 (3d ed. 2004).
- “Reasonable Person” Standard
Whether a suspect is “in custody” is an objective inquiry. Two discrete
inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was at liberty to terminate the interrogation and leave. For the most part, the “reasonable person” standard ignores the subjective views harbored by the person being questioned. See generally Stansbury v. California, 511 U.S. 318, 323, 114 S. Ct. 1526, 128 L. Ed. 2d 293 (1994). The test, in other words, involves no consideration of the “actual mindset” of the particular suspect subjected to police questioning. Yarborough v. Alvarado, 541 U.S. 652, 667, 124 S. Ct. 2140, 158 L. Ed. 2d 938 (2004). The benefit of the objective custody analysis is that it is “designed to give clear guidance to the police. Alvarado, 541 U.S., at 668.
Officers are under no duty “to consider . . . contingent psychological factors when deciding when suspects should be advised of their Miranda rights”. Alvarado, 541 U.S., at 668. This means that an individual’s lack of prior exposure to the criminal justice system plays no part in deciding whether an individual is”in custody” for purposes of Miranda. Id.
i. Youth. The reasonable person standard is modified to a “reasonable child” standard if the child’s age was known to the officer at the time of police questioning, or would have been objectively apparent to a reasonable officer. See J.D.B. v. North Carolina, ___ U.S. ___, 131 S. Ct. 2394, 2406, 180 L. Ed. 2d 310 (2011). “This is not to say that a child’s age will be a determinative, or even a significant, factor in every case.” Id. Merely, this is a recognition that a reasonable child subjected to police questioning will sometimes feel pressured to submit when a reasonable adult would feel free to go. See J.D.B. v. North Carolina, ___ U.S. ___, 131 S. Ct. 2394, 180 L. Ed. 2d 310 (2011). Washington courts applied this rule prior to the issuance of the Supreme Court’s 2011 decision in J.D.B.. See, e.g., State v. D.R., 84 Wn. App. 832, 930 P.2d 350, review denied, 132 Wn.2d 1015 (1997) (teenage student who was questioned by a police officer in an administrative office of the school was “in custody” for Miranda purposes as most children that age would feel they were not free to leave the principal’s office).
g. Interviews conducted at police stations will be subjected to heightened scrutiny. See,e.g.,UnitedStatesv.Jacobs,431F.3d99,105(3rdCir.2005). Factors that will be considered in determining whether an interview conducted at a police station is “custodial” include the following:
i. Whether the questioner informed the person being interviewed that they are not under arrest, see, e.g., California v. Beheler, 463 U.S. 1121, 103 S. Ct. 3517, 77 L. Ed. 2d 1275 (1983); Oregon v. Mathiason, 429 U.S. 492, 97 S. Ct. 711, 50 L. Ed. 2d 714 (1977); State v. Grogan, 147 Wn. App. 511, 195 P.3d 1017 (2008), review granted and case remanded, 168 Wn.2d 1039 (2010), reaff’d on reconsideration, 158 Wn. App. 272, 246 P.3d 196 (2010), review denied, 171 Wn.2d 1006 (2011).
- Whether the person being interviewed was allowed to have friends, relatives or neutral persons at the interview, see, e.g. State v. Daniels, 160 Wn.2d 256, 156 P.3d 905 (2007) (defendant was “in custody” where she was questioned for over 90 minutes by two police detectives at the precinct in an 8 foot by 10 foot room and the detectives refused to allow the defendant’s father to accompany her in the interrogation room).
- Whether the person being interviewed voluntarily went to the police station understanding that questioning would ensue, see, e.g., United States v. Jacobs, 431 F.3d 99, 106 (3rd Cir. 2005) ; United States v. Kim, 292 F.3d 969, 974 (9th Cir. 2002).
- Whether the person being interviewed was able to leave the station at the end of the interview or whether they were arrested, see, e.g., Slwooko v. State, 139 P.3d 593, 600 (Alaska Ct. App. 2006) (“the fact that the police arrest a suspect following an interview may shed light on otherwise ambiguous facets of the police officers’ interaction with the suspect. But the fact that the police decide to arrest a person after the person has confessed to a serious crime is, of itself, unremarkable.”); Commonwealth v. Barnes, 20 Mass. App. Ct. 748, 482 N.E.2d 865 (1985); Roman v. State, 475 So.2d 1228, 1231-32 (Florida 1985) (the mere fact that an arrest follows a confession does not convert what theretofore had been a noncustodial situtation into a custodial one); State v. Grogan, 147 Wn. App. 511, 195 P.3d 1017 (2008), review granted and case remanded, 168 Wn.2d 1039 (2010), reaff’d on reconsideration, 158 Wn. App. 272, 246 P.3d 196 (2010), review denied, 171 Wn.2d 1006 (2011) (defendant allowed to leave at the end of the interview).
- Whether the person being interviewed was transported to the station by a police officer or whether they drove themself to the station, see, e.g., State v. Pinder, 250 Con.. 385, 736 A.2d 857, 874 (1999) (noting that defendant had been given the option or riding in his own car or with the state police).
- Whether the door to the interview room was locked and/or whether there were locked doors between the person being interviewed and the police station’s entry, see, e.g. State v. Grogan, 147 Wn. App. 511, 195 P.3d 1017 (2008), review granted and case remanded, 168 Wn.2d 1039 (2010), reaff’d on reconsideration, 158 Wn. App. 272, 246 P.3d 196 (2010), review denied, 171 Wn.2d 1006 (2011) (noting defendant did not need a door key or police escort to leave the interview room); Slwooko v. State, 139 P.3d 593, 598-99 (Alaska Ct. App. 2006).
- How long the interview lasted. Compare State v. Daniels, 160 Wn.2d 256, 156 P.3d 905 (2007) (defendant was “in custody” where she was questioned for over 90 minutes by two police detectives at the precinct in an 8 foot by 10 foot room and the detectives refused to allow the defendant’s father to accompany her in the interrogation room) with Slwooko v. State, 139 P.3d 593, 597 (Alaska Ct. App. 2006) (suspect was not in custody where the station house interview lasted less than 30 minutes); Roman v. State, 475 So.2d 1228, 1231 (Florida 1985) (where questioning lasts less than 30 minutes, the length of the contact favors a finding that a reasonable person would assume that they were not in custody). But see State v. Pinder, 250 Conn. 385, 736 A.2d 857 (1999) (in light of the repeated reminders that the defendant was free to leave, the fact that the defendant had been at the polygraph unit for approximately 2 Ω hours doe not necessitate the conclusion that a reasonable person would believe that he could not leave).
- Whether the questioning is non-confrontational and polite or accusatorial in nature. Slwooko v. State, 139 P.3d 593, 597, 599 (Alaska Ct. App. 2006).
h. Interviews conducted in a suspect’s home may, if imbued with a “police- dominated atmosphere”, be considered custodial for purposes of Miranda warnings. Factors that courts will consider in deciding whether a police- dominated atmosphere exists include:
- the number of law enforcement personnel
- the number of law enforcement agencies represented
- whether the law enforcement representatives are armed
- whether the suspect was at any point restrained, either by physical force or by threats;
- whether the suspect was isolated from others
- whether the suspect was informed that he was free to leave or terminate the interview, and the context in which any such statements were made.
United States v. Craighead, 539 F.3d 1073 (9th Cir. 2008) (in-home interview was “custodial” for Miranda purposes where 8 armed officers, from 3 different agencies entered the suspect’s home, it was unclear whether the officer who informed the suspect that his statements were voluntary and that he was free to leave spoke for all three agencies, the suspect was escorted to a back storage room and one officer leaned with his back against the door in such a way as to block the suspect’s exit).
3. “Interrogation” involves express questioning, as well as all words or actions on the part of the police, other than those attendant to arrest and custody, that are likely to elicit an incriminating response. Rhode Island v. Innis, 446 U.S. 291, 301, 64 L. Ed. 2d 297, 100 S. Ct. 1682 (1980); State v. Johnson, 48 Wn. App. 681, 739 P.2d 1209 (1987).
- When not dealing with express questioning, the focus is primarily upon the perception of the suspect, rather than the intent of the police. Rhode Island v. Innis, 446 U.S. 291, 301, 64 L. Ed. 2d 297, 100 S. Ct. 1682 (1980).
- The standard is an objective one, focusing on what the officer knows or ought to know will be the result of his words and acts. State v. Sargent, 111 Wn.2d 641, 650, 762 P.2d 1127 (1988). In determining whether the officer should know what impact his words or acts will have, the focus is on the perceptions of the suspect, rather than on the intent of the police. State v. Wilson, 144 Wn. App. 166, 181 P.3d 887 (2008).
- Declaratory statements intended to affect the personality and psychological makeup of the suspect may constitute interrogation. See, e.g., Brewer v. Williams, 430 U.S. 387, 97 S. Ct. 1232, 51 L. Ed. 2d 424 (1977) (“Christian burial speech”); State v. Wilson, 144 Wn. App. 166, 181 P.3d 887 (2008) (“death notification” to woman who was in custody for stabbing her husband).
- Case law examples of interrogative questions and acts:
- Questions as “did you do it?” and “come to the truth”, are interrogative in nature. State v. Sargent, 111 Wn.2d 641, 650, 762 P.2d 1127 (1988).
- Police officer’s general statement in presence of arrestee that “God forbid a handicap child might find the murder weapon” was not the functional equivalent of interrogation. Rhode Island v. Innis, 446 U.S. 291, 64 L. Ed. 2d 297, 100 S. Ct. 1682 (1980).
- Officers’ statements to suspect that they “need[ed] to adhere to the search warrant and continue the sexual assault kit collection procedures” was not the functional equivalent of interrogation. State v. Chapple, 103 Wn. App. 299, 12 P.3d 153 (2000) (unpublished portion of opinion).
- Officer’s informing a woman who was in custody for stabbing her husband that her husband had died was the functional equivalent of interrogation. The suspect’s subsequent statement that “‘I didn’t mean to kill him. I didn’t mean to stab him”, was inadmissible even though the officer’s death notification was not intended to provoke a response. State v. Wilson, 144 Wn. App. 166, 181 P.3d 887 (2008).
- Routine questions asked during the booking process are not interrogation; general questions regarding someone’s background are not interrogation; and questions normally attendant to an arrest are not interrogation. Rhode Island v. Innis, 446 U.S. 291, 301, 64 L. Ed. 2d 297, 100 S. Ct. 1682 (1980); State v. Bradley, 105 Wn.2d 898, 903-04, 719 P.2d 546 (1986); State v. McIntyre, 39 Wn.App. 1, 6, 691 P.2d 587 (1984). But see State v. Denney, 152 Wn. App. 665, 218 P.3d 633 (2009) (routine jail booking questions constitute “interrogation” for which the Miranda warnings are required if the questions are reasonably likely to produce an incriminating response; a standard booking question regarding recent drug use is not shielded from Miranda requirements when the defendant is arrested for a drug offense).
- Routine inquiries by a guard concerning the security status of prisoners are not interrogation. Kemp v. Ryan, 638 F.3d 1245 (9th Cir.), cert. denied, 132 S. Ct. 414 (2011).
- Officer’s negotiations with barricaded individual not the functional equivalent of interrogation. State v. Pesa, 75 Wn. App. 139, 876 P.2d 963 (1994), review denied, 125 Wn.2d 1015 (1995).
- An officer’s request that a suspect hand over or reveal the location of incriminating evidence can elicit a nonverbal act that may be testimonial in nature. If the request is made after the suspect is in custody, the suspect’s acts will be suppressed if performed in the absence of Miranda warnings. The produced evidence, however, will still be admissible if the suspect’s actions were not the product of coercion. State v. Wethered, 110 Wn.2d 466, 755 P.2d 797 (1985).
E. Invocation of Rights
- A suspect may knowingly, voluntarily and intelligently waive his or her rights under Miranda.
- A suspect who has waived his or her rights under Miranda may change his or her mind at any time.
- Once a suspect requests counsel, police must cease questioning the suspect and cannot try again until counsel has been made available or the suspect himself reinitiates conversation. Edwards v. Arizona, 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981). This request must, however, be made to an officer during a custodial encounter. See Bobby v. Dixon, ___ U.S. ___, 132 S. Ct. 26, 29, 181 L. Ed. 2d 328 (2011) (a person’s refusal to answer questions without a lawyer present during a non-custodial interview, does not prevent an officer from conducting a custodial interrogation four days later; “And this Court has “never held that a person can invoke his Miranda rights anticipatorily, in a context other than “custodial interrogation.’ McNeil v. Wisconsin, 501 U.S. 171, 182, n. 3, 111 S. Ct. 2204, 115 L. Ed. 2d 158 (1991); see also Montejo v. Louisiana, 556 U.S. 778, ___, 129 S. Ct. 2079, 173 L. Ed. 2d 955 (2009) (“If the defendant is not in custody then [Miranda and its progeny] do not apply”).”); Montejo v. Louisiana, ___ U.S. ___, 129 S. Ct. 2079, 173 L. Ed. 2d 955 (2009) ( A request for counsel at arraignment or first appearance, however, does not prevent officers from contacting the defendant to request an interview. )
a. Police may not reinitiate questioning without counsel being present even if the suspect has consulted with an attorney in the interim. Minnick v. Mississippi, 498 U.S. 146, 111 S. Ct. 486, 112 L. Ed. 2d 489 (1990).
- An exception to this rule clearly applies where there is a break in custody of at least two weeks in length. See Maryland v. Shatzer, ___ U.S. ___, 130 S. Ct. 1213, 175 L. Ed. 2d 1045 (2010). A break in custody can include incarceration in the general prison population. Id.
- A break in custody that is contrived, pretextual, or made in bad faith may be insufficient to remove the protections of the Edwards rule. State v. Jones, 102 Wn. App. 89, 96-97, 6 P.3d 58 (2000), review denied, 142 Wn.2d 1018 (2001).
ii. Edwards and Roberson protections also may not apply to a defendant who has already been tried and convicted of the crime for which he was taken into custody and with respect to which he asserted a right to counsel. See, e.g., Maryland v. Shatzer, ___ U.S. ___, 130 S. Ct. 1213, 175 L. Ed. 2d 1045 (2010); United States v. Arrington, 215
F.3d 855 (8th Cir. 2000) (Edwards protections do not continue indefinitely just because a person remains in custody).
b. After a suspect invokes his or her right to counsel, police may not contact the suspect regarding a separate investigation. Arizona v. Roberson, 486 U.S. 675, 108 S. Ct. 2093, 100 L. Ed. 2d 704 (1988).
i. The “break in custody” exception announced in Maryland v. Shatzer, ___ U.S. ___, 130 S. Ct. 1213, 175 L. Ed. 2d 1045 (2010), will also apply in the different investigation context.
c. Suspect’s request for counsel must be unequivocal. Davis v. United States, 512 U.S. 452, 458-59, 129 L. Ed. 2d 362, 114 S. Ct. 2350 (1994). “Although a suspect need not speak with the discrimination of an Oxford don, he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” Id. A request is equivocal if further questions are needed to determine if the suspect has made a request. State v. Smith, 34 Wn. App. 405, 408-09, 661 P.2d 1001 (1983). “Context”, however, will not transform an unambiguous invocation of the right to counsel into open-ended ambiguity. State v. Nysta, No. 65774-7-I, ___ Wn.2d ___, ___ P.3d ___ (May 7, 2012).
An officer who is confronted with an equivocal or ambiguous request for counsel may simply proceed with questioning. Davis v. United States, 512 U.S. 452, 129 L. Ed. 2d 362, 114 S. Ct. 2350 (1994); State v. Radcliffe, 164 Wn.2d 900, 194 P.3d 250 (2008) (repudiating the rule adopted in State v. Robtoy, 98 Wn.2d 30, 653 P.2d 284 (1982).
Cases have established that the following constitutes ambiguous requests for counsel:
- Suspect’s statement “maybe I should talk to a lawyer,” was ambiguous, and hence was not a request for counsel. Davis v. United States, 512 U.S. 452, 458-59, 129 L. Ed. 2d 362, 114 S. Ct. 2350 (1994).
- Suspect’s statement that he did not know how much trouble he was in and did not know if he needed a lawyer was an equivocal request for an attorney. State v. Radcliffe, 164 Wn.2d 900, 194 P.3d 250 (2008).
- A suspect’s statement that he might want to talk to a lawyer constitutes an equivocal request for an attorney. United States v. Fouche, 776 F.2d 1398, 1405 (9th Cir. 1985).
- Suspect’s question, “[b]ut excuse me, if I am right, I can have a lawyer present through all of this, right?, was an equivocal request for an attorney. United States v. Younger, 398 F. 3d 1179, 1187-88 (9th Cir. 2005).
- An inquiry whether the police officer thinks that the interrogated person in custody needs an attorney does not constitute even an equivocal request for a lawyer. Norman v. Ducharme, 871 F.2d 1483, 1486 (9th Cir. 1989).
- “Do I need a lawyer?” or “do you think I need a lawyer” does not rise to the level of even an equivocal request for an attorney. United States v. Ogbuehi, 18 F.3d 807, 814 (9th Cir. 1994).
- “What time will I see a lawyer?” not an unambiguous request for counsel. United States v. Doe, 170 F.3d 1162, 1166 (9th Cir. 1999).
- “Maybe [I] ought to see an attorney” not a clear and unambiguous request for counsel. United States v. Doe, 60 F.3d 544, 546 (9th Cir. 1995).
- “Go ahead and run the lawyers” not a clear and unambiguous request for counsel. Mincey v. Head, 206 F.3d 1106, 1132 (11th Cir. 2000), cert. denied, 532 U.S. 926 (2001).
On the other hand, the following requests were found to be unambiguous:
- “Can I talk to a lawyer? At this point, I think maybe you’re looking at me as a suspect, and I should talk to a lawyer. Are you looking at me as a suspect?” was an unambiguous request for counsel. Smith v. Endell, 860 F.2d 1528, 1529 (9th Cir. 1988).
- Suspect’s questions “(1) Can I get an attorney right now, man? (2) You can have attorney right now? and (3) Well, like right now you got one?” constituted an unambiguous request. Alvarez v. Gomez, 185 F.3d 995, 998 (9th Cir. 1999).
- “My attorney does not want me to talk to you” in tandem with a refusal to sign written waiver of right to attorney form was an unambiguous request for counsel. United States v. Cheely, 36 F.3d 1439, 1448 (9th Cir. 1994).
- A suspect’s statement during a custodial interrogation that “shit man I gotta talk to my lawyer,” is an unequivocal invocation by the suspect of his right to an attorney. State v. Nysta, No. 65774-7-I, ___ Wn.2d
___, ___ P.3d ___ (May 7, 2012).
The case law is inconsistent on whether the phrase “I think” will render a request for counsel equivocal. Compare Shedelbower v. Estelle, 885 F.2d 570, 571 (9th Cir. 1989) ( the statement “you” know, I’m scared now. I think I should call an attorney,” was a valid invocation of the suspect’s right to an attorney); Cannady v. Dugger, 931 F.2d 752, 754 (11th Cir. 1991) (“I think I should call my lawyer” was an unequivocal request for counsel); United States v. Perkins, 608 F.2d 1064, 1066 (5th Cir. 1979) (“I think I want to talk to a lawyer” was an unequivocal request for counsel) with Diaz v. Senkowski, 76 F.3d 61, 63 (2d Cir. 1996) (suspect’s statement “do you think I need a lawyer” was ambiguous within the meaning of Davis); Burket v. Angelone, 208 F.3d 172, 198 (4th Cir. 2000) (“I think I need a lawyer” does not constitute an unequivocal request for counsel).
d. The Fifth Amendment right to counsel belongs to the suspect. It may not be asserted on the suspect’s behalf by another. An officer engaged in a non- custodial interview with a suspect or in a post-Miranda waiver interview with a suspect has no obligation to terminate the interview solely because an attorney who purports to represent the suspect appears at the station house and asks to speak with his or her client. See Moran v. Burbine, 475 U.S. 412, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986); State v. Earls, 116 Wn.2d 364, 805 P.2d 211 (1991).
4. Once a suspect expresses a desire to remain silent, the police must scrupulously honor the request and cease questioning. Police may, however, after the passage of a significant period of time and the provision of a fresh set of Miranda warnings, reapproach the defendant and resume questioning. See, e.g., Michigan v. Mosley, 423 U.S. 96, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975). A shorter break may be sufficient if, after fresh Miranda warnings, officers limit their questioning to a different crime than the one at issue when the suspect initially expressed a desire to remain silent. State v. Brown, 158 Wn. App. 49, 240 P.3d 1175 (2010), review denied, 171 Wn.2d 1006 (2011) (two hour break).
a. Suspect’s invocation of the right to remain silent must be unequivocal. United States v. Burns, 276 F.3d 439, 441-42 (8th Cir. 2002); Simmons v. Bowersox, 235 F.3d 1124, 1131 (8th Cir. 2001), cert. denied, 122 S. Ct. 280 (2001); cf. Davis v. United States, 512 U.S. 452, 458-59, 129 L. Ed. 2d 362, 114 S. Ct. 2350 (1994) (right to counsel).
A significant body of federal law indicates that an officer who is confronted with an equivocal or ambiguous request to remain silent may simply proceed with questioning. See, e.g.,Simmons v. Bowersox, 235 F.3d 1124, 1131 (8th Cir. 2001), cert. denied, 122 S. Ct. 280 (2001); Bui v. DiPaolo, 170 F.3d 232, 239 (1st Cir. 1999), cert. denied, 529 U.S. 1086 (2000); United States v.
Mills, 122 F.3d 346, 350-51 (7th Cir.) (citing United States v. Banks, 78 F.3d 1190, 1196-97 (7th Cir. 1996)), cert. denied, 118 S. Ct. 637 (1997); Medina v. Singletary, 59 F.3d 1095, 1100-01 (11th Cir. 1995), cert. denied, 517 U.S. 1247 (1996).
Mere silence in the face of questioning does not constitute an unambiguous invocation of the right to remain silent. In such cases, an officer may continue to question the suspect until he or she invokes. See Berghuis v. Thompkins, ___ U.S. ___, 130 S. Ct. 2250, 176 L. Ed. 2d 1098 (2010)(suspect, who after receiving Miranda warnings, never stated that he wanted to remain silent or that he did not want to talk with the police, and who was largely silent during the 3-hour interrogation, but near the end, answered “yes” when asked if he prayed to God to forgive him for the shooting, had not invoked his Fifth Amendment rights; statement is admissible).
Case law has held that the following are examples of equivocal assertions of the right to remain silent:
- A suspect’s reply of “Nope” to the investigating officer’s inquiry about making a formal statement was not an unequivocal assertion of the suspect’s right to remain silent which required an end to further questioning. James v. Marshall, 322 F.3d 103 (1st Cir. 2003).
- A suspect’s refusal to answer a question after agreeing to answer certain specific questions was not a clear and unequivocal assertion of his right to remain silent to subsequent questions. United States v. Hurst, 228 F.3d 751 (6th Cir. 2000).
- “I just don’t think that I should say anything” and “I need somebody that I can talk to” do not constitute an unequivocal request to remain silent. Burket v. Angelone, 208 F.3d 172 (4th Cir.), cert. denied, 530 U.S. 1283 (2000).
- Silence in response to certain question not an unequivocal assertion of right to remain silent. United States v. Mikell, 102 F.3d 470, 476- 77 (11th Cir.1996); State v. Hodges, 118 Wn. App. 668, 77 P.3d 375 (2003).
- “I refuse to sign that [the waiver of rights form] but I’m willing to talk to you” not an unequivocal assertion of the right to remain silent. State v. Parra, 96 Wn. App. 95, 99-100, 977 P.2d 1272, review denied, 139 Wn.2d 1010 (1999); accord State v. Manchester, 57 Wn. App. 765, 771, 790 P.2d 217, review denied, 115 Wn.2d 1019 (1990).
- “I don’t want to talk about it” and “I’d rather not talk about it” are not unequivocal invocations of right to silence. Owen v. State, 862 So. 2d 687, 696-98 (Fla. 2003), cert. denied, 543 U.S. 986(2004).
- “Just take me to jail” is not unequivocal invocation of right to silence. Ford v. State, 801 So. 2d 318, 319-20 (Fla. 1st DCA 2001), review denied, 821 So. 2d 295 (Fla. 2002), cert. denied, 537 U.S. 1010 (2002).
- Act of tearing up waiver form is not unequivocal invocation of right to silence. Sotolongo v. State, 787 So. 2d 915 (Fla. 3d DCA 2001), review denied, 816 So. 2d 129 (Fla. 2002).
- “I can’t say more than that. I need to rest.” was not an unambiguous invocation of the right to remain silent. Dowthitt v. Texas, 931 S.W.2d 244, 257 (Tex. Crim. App. 1996)
Case law establishes that the following are examples of unequivocal assertions of the right to remain silent:
- An arrested individual’s statement to a police officer that “I plead the Fifth” was an unequivocal invocation of the right to remain silent. Anderson v. Terhune, 516 F.3d 781 (9th Cir. 2008).
- A suspect’s statement that “I have nothing else to say” or “I have nothing further to add” was a sufficiently clear invocation of his right to remain silent. United States v. Reid, 211 F. Supp. 2d 366, 372 (D. Mass.2002);”);Peoplev.Douglas,8A.D.3d980,778N.Y.S.2d622, 623 (N.Y. App. Div. 2004)), appeal denied, 818 N.E.2d 675, 3 N.Y.3d 705, 785 N.Y.S.2d 33 (N.Y. 2004).
- “I don’t want to talk to you m—– – f——” is a sufficiently clear invocation of the suspect’s right to remain silent. United States v. Stewart, 51 F. Supp. 2d 1136, 1142-45 (D. Kan. 1999), reconsidered in part, 51 F. Supp. 2d 1147, 1162 (D. Kan. 1999), affirmed, 215 F.3d 1338 (10th Cir. 2000) (unpublished opinion)
- Suspect’s statement, “I don’t want to tell you guys anything to say about me in court,” is an unambiguous and unequivocal invocation of right to remain silent. State v. Day, 619 N.W.2d 745, 750 (Minn. 2000).
Sixteen year old suspect’s statement “I don’t want to talk about it. I don’t want to remember it . . . .” was an unequivocal assertion of her right to remain silent. McGraw v. Holland, 257 F.3d 513 (6th Cir. 2001).
5. The Ninth Circuit held that a suspect can partially invoke his right to remain silent by refusing to talk on tape. In Arnold v. Runnels, 421 F.3d 859 (9th Cir. 2005), the defendant orally waived his Miranda rights, but stated that he did not wish to talk on tape. Once the tape-recorder was turned on, the defendant’s only response to questions was “no comment.” The defendant’s actions were held to be an unequivocal assertion of his right not to speak on tape. The tape recording was, therefore, suppressed.
F. Public Safety Exception to Miranda
In New York v. Quarles, 467 U.S. 649, 656, 104 S. Ct. 2626, 81 L. Ed. 2d 550 (1984), the Supreme Court, in response to concerns for police and public safety, created a “public safety exception” to the Miranda requirement. In Quarles, the Court concluded “that the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination.” In adopting the rule, the Court indicated that it
declined to place officers . . . in the untenable position of having to consider, often in a matter of seconds, whether it best serves society for them to ask the necessary questions without the Miranda warnings and render whatever probative evidence they uncover inadmissible, or for them to give the warnings in order to preserve the admissibility of evidence they might uncover but possibly damage or destroy their ability to . . . neutralize the volatile situation confronting them.
Qualres. At 657-58.
To determine whether the public safety exception applies, the court asks whether there was “an objectively reasonable need to protect the police or the public from any immediate danger . . . .” Quarles, 467 U.S. at 659.
Case law provides the following examples of when the public safety exception was appropriately invoked:
- Police properly questioned a defendant who was arrested in supermarket about the location of a loaded firearm that the police believed the defendant had discarded where a third party could gain access. New York v. Quarles, 467 U.S. 649, 656, 104 S. Ct. 2626, 81 L. Ed. 2d 550 (1984).
- SWAT negotiators properly dispensed with Miranda warnings while attempting to convince a barricaded individual who had shot and killed two people, one of whom was a police officer, to voluntarily surrender. State v. Finch, 137 Wn.2d 792, 830, 975 P.2d 967, cert. denied, 528 U.S. 922 (1999).
- Officer responding to a report of a stabbing, who heard a scream inside the house prior to making an emergency entry, properly asked where the stabbing victim was located prior to administering Miranda warnings. State v. Richmond, 65 Wn. App. 541, 545-46, 828 P.2d 1180 (1992).
- Police officer’s pre-Miranda question to arrested person regarding whether there is anything else in his car that might hurt the officer, that was asked after the officer discovered an unloaded .38 caliber revolver under the front seat. United States v. Liddell, 517 F.3d 1007 (8th Cir. 2008).
Other Eighth Circuit cases recognize that the risk of police officers being injured by the mishandling of unknown firearms or drug paraphernalia provides a sufficient public safety basis to ask a suspect who has been arrested and secured whether there are weapons or contraband in a car or apartment that the police are about to search. See United States v. Luker, 395 F.3d 830, 832 (8th Cir.), cert. denied, 546 U.S. 831 (2005) (public safety exception applied to post-arrest question whether there was anything in intoxicated driver’s car the police should know about); United States v. Williams, 181 F.3d 945, 953-54 (8th Cir. 1999) (public safety exception applied to post-arrest question, “is there anything we need to be aware of” in the suspect’s apartment, because the police “could not have known whether other hazardous weapons were present . . . that could cause them harm if they happened upon them unexpectedly or mishandled them in some way”).
The Eighth Circuit’s position is consistent with that of most other federal circuits. See United States v. Shea, 150 F.3d 44, 48 (1st Cir. 1998) (pre-Miranda question asking arrested defendant whether he had any weapons fell within the public-safety exception); United States v. Webster, 162 F.3d 308, 332 (5th Cir. 1998) (“The police acted constitutionally when they asked [the defendant] whether he had any needles in his pockets that could injure them during their pat down; such questioning, needed to protect the officers, does not constitute interrogation under Miranda.”);United States v. Edwards, 885 F.2d 377, 384 (7th Cir. 1989) (public-safety exception applied to pre-Miranda question asking arrested defendant whether he had a gun); United States v. Carrillo, 16 F.3d 1046, 1049-50 (9th Cir. 1994) (pre-Miranda question asking arrested defendant whether he had any needles on him was within the public- safety exception); United States v. Lackey, 334 F.3d 1224, 1227-28 (10th Cir.), cert. denied, 540 U.S. 997 (2003) (public safety exception applied to post-arrest, pre- search question of “Do you have any guns or sharp objects on you?” ).
Not every circuit, however, agrees that such questions fall within the public-safety exception. See, e.g., United States v. Williams, 483 F.3d 425, 428 (6th Cir. 2007).
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