The Criminal Docket

A  PUBLICATION  OF  THE  CRIMINAL  JUSTICE  SECTION  OF  THE  LOS  ANGELES  COUNTY  BAR  ASSOCIATION

February 2006

Volume 1, Number 2

OneMinuetBrief.GIF

ISSUE: Is a suspect in Miranda "custody" at the point when s/he is no longer free to leave a police encounter?

The Supreme Court has repeatedly said that "custody" for Miranda purposes means formal arrest or its functional equivalent. California v. Beheler (1983) 463 US 1121, 1125; Berkemer v. McCarty (1984) 468 US 420, 440; Stansbury v. California (1994) 511 US 318, 322.
Formal arrest occurs when an officer tells the suspect, "You're under arrest," or "I have a warrant for your arrest." Short of that happening, the circumstances may still amount to the functional equivalent of arrest where, at the time of interrogation, the suspect is handcuffed (People v. Turner (1984) 37 Cal.3d 302, 319), locked in the police car (US v. Henley (9th Cir. 1993) 984 F.3d 1040, 1042), confronted with weapons (People v. Taylor (1986) 178 Cal.App.3d 217, 229), surrounded by officers (Orozco v. Texas (1969) 394 US 324, 327), or compelled to remain in a police station (People v. Aguilera (1996) 51 Cal.App.4th 1151, 1166-67).
Sometimes, even when no formal arrest or arrest-like restraints are involved, police officers or lawyers or judges try to determine Miranda custody by talking about whether, at the time of interrogation, the suspect was or was not "free to go," or "free to leave." But if the suspect was not in a police facility or being restrained with guns, cuffs, cages, etc., the question of whether s/he was not free to leave is an irrelevant issue that confuses Fourth Amendment "detention" with Miranda "custody."
"Not free to leave" was the test for "detention" set out in US v. Mendenhall (1980) 446 US 544, 554. But "detention" is not synonymous with "arrest" (or its functional equivalent), which is what Miranda "custody" requires. If a person were in custody whenever s/he was not free to leave, Miranda warnings would be needed at every routine ped stop and vehicle stop. But they're not: "[P]ersons temporarily detained pursuant to such stops are not 'in custody' for the purposes of Miranda." Berkemer v. McCarty (1984) 468 US 420, 440.
 See also, Pennsylvania v. Bruder (1988) 488 US 9, 10-11 (DUI stop not custodial during pre-arrest FSTs); People v. Clair (1992) 2 Cal.4th 629, 679 (simple detention inside apartment not custodial); People v. Vasquez (1993) 14 Cal.App.4th 1158, 1163 (ped stop not custodial); People v. Salinas (1982) 131 Cal.App.3d 925, 936 (detention in front yard during on-scene investigation not custodial); and People v. Forster (1994) 29 Cal.App.4th 1746, 1754 (one-hour detention in Customs Office waiting area not custodial).

BOTTOM LINE: It is a confusion of issues and tests to speak of whether or not a suspect was "free to leave" or "free to go" when trying to determine Miranda "custody" issues in unofficial settings. To prevent erroneous rulings, that language should be avoided, and the inquiry should focus on whether the suspect was under arrest or equivalent restraints at the time of interrogation.
NUMBER: 2006-02 DATE: 02-03-06 BY: Devallis Rutledge TOPIC: Miranda: "Not Free to Leave"
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