July 2022 Warning Bells article
It is not often that the thousands of ways you can be sued is reduced by one, but that is what the U.S. Supreme Court just did. Failure to properly Mirandize is no longer grounds for you to lose your house. Too bad for Terence Takoh, good news for LASD Deputy Carlos Vega, and routine for the 9th Circuit Court of Appeals, the most reversed court in the land, that is once again reversed by the Supremes. And, given that the Miranda rules have gotten more and more complicated, good for law enforcement in general.
Takoh, a nurse’s aid, was accused of an improper sexual contact with a patient. Deputy Vega was called to investigate and after a long interrogation during which a Miranda warning was not given, Takoh wrote an apology letter to the patient. Takoh was criminally charged and the letter was admitted as evidence against him at trial. A judge held that the interrogation was not conducted during a custodial detention and was therefore admissible. Takoh was subsequently found not guilty by a jury. He then sued in federal court that he was deprived of his constitutional rights because Deputy Vega had not given him the Miranda warning.
Ever since Ernesto Miranda was granted a new trial for rape in 1966 because he had not been advised that he could remain silent before he confessed, officers have been saddled with the requirement to give a Miranda warning when an in-custody suspect is being interrogated. Incidentally, it did Ernesto no good. He was convicted in the second trial anyway and sentenced to 20-30 years. He was paroled, however, 5 years later and actually made money signing police officer’s Miranda cards. Fame brings fortune, I guess. Karma caught up with him in 1976 when he was stabbed to death during an argument in a bar.
Violations of Miranda result in the statements being suppressed and not allowed to be presented as evidence in a criminal case. Terence Takoh took the position that a Miranda violation was a Fifth Amendment violation in itself and he could sue under section 1983 civil rights law for a deprivation of a constitutional right and force Deputy Vega and LA County to cough up damages. The 9th circuit agreed. Six of the nine U.S. Supreme Court justices did not.
The majority held that Miranda warnings were “prophylactic” requirements to protect persons from law enforcement violating the Fifth Amendment regarding self-incrimination. A prophylactic requirement being violated was not a violation in itself of the Fifth Amendment. Thus, no federal lawsuit. The other three justices dissented by considering that a Miranda warning in itself was a constitutional right. And since the violation of a constitutional right can be sued on in a 1983 action, the lawsuit was valid. Majority rules in the Supreme Court so Miranda violations are not violations of a constitutional right.
That being said, it might be a good idea to review the Miranda rules because it still means that an officer can lose the ability to use incriminatory statements in the prosecution of a suspect. The following is based on information from the California Peace Officers Legal Sourcebook which is available free to active LAPD officers and downloadable to your cell phone. Contact www.copware.com.
When Required: Whenever a suspect is in custody and questioned. That is why it is referred to as a “custodial interrogation.” Custody and interrogation must coexist at the same time because that is what creates the “inherently compelling pressure” requiring the warning.
When a Person is In-custody: The person has been formally arrested or freedom has been restrained to a degree associated with a formal arrest AND the suspect is personally aware of this lack of freedom or reasonably believes that it exists. This can happen by a show of force, handcuffing, or being secured in a police vehicle.
Detention vs Arrest: Even though a detainee is not free to leave, Miranda generally need not be given where there has been no arrest. Asking a moderate number of questions to determine identity and to obtain information confirming or dispelling an officer’s suspicions is not considered a Miranda custody. It can be turned into one by words or actions indicating the detention is more like an arrest, however.
Interrogation: Any direct or express questioning about a crime being investigated or the functional equivalent of direct questioning accomplished through words or actions that are reasonably likely to elicit an incriminating response. Spontaneous statements are not subject to Miranda.
Express waiver: An affirmative response from the suspect. Recommended question-Do you want to talk about what happened? Or Do you want to tell your side of the story?
Implied waiver: No particular manner or form of a Miranda waiver is required. Once Miranda warnings are given and the suspect understands them, conduct can result in an implied waiver. For instance, a suspect may answer questions. A court will consider whether there is evidence the suspect understood his rights and the consequences of waiving them, the whole course of the questioning, and the circumstances surrounding the interrogation such as suspect’s experience, age, education, background, and intelligence and if there is any evidence of police coercion. Obviously, an express waiver is preferable and reduces admissibility issues if tactically plausible.
Voluntary: A waiver must be the product of a free and deliberate choice. Officer conduct can undermine what appears to be a voluntary waiver. Attempting to “soften up” the suspect by acting like his friend or by offering sympathy with remarks such as “I’d have done the same thing” could be viewed by a court as a subtle form of pressure or duress. Any conduct or statements by an officer that could be interpreted as threats, promises, deceit, or trickery to obtain the waiver could invalidate the waiver and make the statements inadmissible.
Knowing and intelligent: No particular intelligence or level of experience is required to understand Miranda warnings. Language barriers can be a legal problem if warnings are given in English to a suspect with poor comprehension. A translator is necessary. Suspects under the influence of drugs or alcohol may or may not invalidate a waiver depending on the degree of impact on understanding and free will.
Revocation: The right to silence can be invoked at any time before or after waiving Miranda rights. Once invoked the interrogation must cease.
Exception-Rescue Doctrine: Miranda warnings may be excused for questions related to finding a victim whose safety is in issue.
Exception-Public Safety: Miranda warnings may be excused for questions relating to the finding of weapons where failing to secure the weapon may result in an issue of public safety.
Juveniles: All minors must be provided counsel prior to custodial interrogation and prior to waiving Miranda rights. (Welfare and Institutions Code section 625.6)
When Required to be Recorded: Whenever a custodial interrogation of a murder suspect takes place in a “fixed place of detention” like a jail, police station, holding cell, juvenile hall, etc. Juveniles must be video recorded. Adults may be audio recorded. There are 8 exceptions. See 859.5 PC.
Attorney Seeking Contact; It is not necessary to inform the suspect that an attorney purporting to represent him is present and wishes to speak to him UNLESS THE SUSPECT REQUESTS THE ATTORNEYOR A RELATIVE OF THE PRISONER REQUESTS THE ATTORNEY VISIT THE SUSPECT. It is a misdemeanor for an officer to refuse this request. (See 825 PC, and yes, there have been officers prosecuted for this)
Foreign Nationals: A peace officer is required to advise foreign nationals of their right to consular notification when they are detained for more than two hours, arrested, or booked. (See 834c PC)
Given all the requirements, it is fortunate that failing any of the numerous rules about Miranda warnings do not give rise to a separate charge for violating a suspect’s constitutional rights. There are already enough reasons to end up in federal court on the wrong side of a lawsuit. Remember the three legs to the stool of keeping out of trouble: knowledge, articulation, and accuracy. Heads up and keep up the good work.
Be legally careful out there.
