By Elia V. Pirozzi
The objective of this article and self-study test is to provide bench officers and lawyers with a pragmatic and structural approach for analyzing issues surrounding the admissibility of statements under Miranda v. Arizona, 384 U.S. 436 (1966). Readers will learn about useful steps which can be undertaken to effectively evaluate and litigate these issues.
When analyzing the admissibility of statements under Miranda, attorneys should ask themselves the following questions:
What is the procedural mechanism for analyzing a statement's admissibility under Miranda?
Evidence Code Section 402 allows a court to determine preliminary facts. Under Section 405, the voluntariness of a particular statement and whether a Miranda violation occurred are preliminary facts determined by the trial judge. When assessing whether a statement was involuntary or obtained in violation of Miranda, the appropriate procedural mechanism for determining these issues will typically be an Evidence Code Section 402/405 motion in limine. See In re Avena, 12 Cal. 4th 694 (1996).
Section 402 does not require that the court convene an evidentiary hearing due to a purported Miranda violation on the request of counsel. The statute specifies only that, in the event the court holds such a hearing to decide the admissibility of a confession or admission, it conducts the hearing outside the presence of the jury if requested by any party. Evid. Code Section 402(b), 405, Law Revision Commission Comments; see also People v. Hoyos, 41 Cal. 4th 872 (2007). Nonetheless, it has been held that conducting a protracted evidentiary hearing on the adequacy of a Miranda advisement in the presence of the jury constitutes an abuse of discretion. People v. Torrez, 188 Cal. App. 3d 723 (1987).
Was the defendant's statement "voluntary"? (If the answer is NO, exclude the statement for all purposes; if the answer is YES, proceed to next step)
A confession or admission must be voluntary to be admissible. Colorado v. Connelly, 479 U.S. 157 (1986). In determining voluntariness, the court will assess the totality of circumstances surrounding the interrogation and the making of the statement. See, e.g., People v. Whitson, 17 Cal. 4th 229 (1998). "A confession may be found involuntary if extracted by threats or violence, obtained by direct or implied promises, or secured by the exertion of improper influence." People v. Maury, 30 Cal.4th 343 (2003). There must also be conduct by the government - generally a police officer - that caused the defendant to make the statement. See, e.g., People v. Williams, 56 Cal. 4th 165 (2013).
A determination of coercive police conduct is a prerequisite to a finding that a statement was involuntary under the federal and state constitutions. People v. McWhorter, 47 Cal. 4th 318 (2009). However, a statement will be deemed involuntary when obtained "by a promise within the proscription of both the federal and state due process guaranties if and only if inducement and statement are linked, as it were, by 'proximate' causation." People v. Benson, 52 Cal. 3d 754 (1990). Thus, the police coercive action must be the proximate or motivating cause of the resulting statement. People v. Tully, 54 Cal. 4th 952 (2012). Tully found the causal connection "must be more than 'but for'; causation-in-fact is insufficient." See also People v. Musselwhite, 17 Cal. 4th 1216 (1998) ("there must be a proximate causal connection between the deception or subterfuge and the confession"). Police coercion exists when the statement is procured by either physical violence (or the threat of physical violence) or psychological coercion. Rogers v. Richmond, 365 U.S. 534 (1961).
Tully held that the prosecution has the burden of overcoming a claim that the defendant's statements were involuntary. The standard of proof is generally preponderance of the evidence. People v. McCurdy, 59 Cal. 4th 1063 (2014).
Does the Miranda rule apply? (If NO, the statement is admissible; if YES, go to next step)
For Miranda to apply, the following circumstances must be present: (1) the subject must be in custody; (2) the questioning must be done by the government or its agents; and (3) while in custody, the subject must be interrogated.
A subject will be considered in "custody" if he or she has been formally arrested or deprived of freedom to the extent "associated with a formal arrest." Berkemer v. McCarty, 468 U.S. 420 (1984), quoting California v. Beheler, 463 U.S. 1121 (1983). The latter characterization is often interpreted as the functional equivalent of a formal arrest.
If a subject is formally arrested, Miranda clearly applies and questioning cannot ensue in the absence of the requisite warnings by law enforcement. However, for purposes of Miranda, custody can exist even in the absence of a formal arrest. See, e.g., People v. Benally, 208 Cal. App. 3d 900 (1989) (incriminating statements excluded because extracted after police entered defendant's room with pass key, guns drawn while he was sleeping and after ordered out of bed without Miranda warnings). When the facts indicate that no formal arrest took place, the inquiry is whether a reasonable person would have believed he or she was not at liberty to terminate the conversation and leave the scene. See Howes v. Fields, 132 S. Ct. 1181 (2012); Yarborough v. Alvarado, 541 U.S. 652 (2004). Howes found that, in conducting this analysis, courts must examine the totality of circumstances surrounding the questioning; no single factor is necessarily dispositive. See also People v. Boyer, 48 Cal. 3d 247 (1989). Nonetheless, Berkemer held that traffic stops and investigative detentions are typically not construed as "custodial" absent sustained or intimidating questioning. Moreover, even situations warranting a cursory "pat down" of an individual suspected of being armed with weapons are not characterized as "in custody" for Miranda purposes. See In re Victor B., 24 Cal. App. 4th 521 (1994).
(2) Government questioning
Generally, Miranda only applies to questioning by law enforcement or agents of law enforcement. See In re Deborah C., 30 Cal. 3d 125 (1980). Additionally, the subject must be aware that he is being questioned by and speaking to law enforcement before the Miranda admonishment must be given. See Illinois v. Perkins, 496 U.S. 292 (1990) (officer acting as inmate evoked incriminating conversation in jail; statements admissible because subject unaware he was being questioned by law enforcement). Such statements, however, may be inadmissible under Massiah v. United States, 377 U.S. 201 (1964). Civilians who are not acting as law enforcement agents need not advise a suspect of his Miranda rights before questioning, even if the individual is in custody. See People v. Tate, 49 Cal. 4th 635 (2010); People v. Whitt, 36 Cal. 3d 724 (1984).
Miranda is applicable only under circumstances where there has been a custodial "interrogation" by law enforcement. See Rhode Island v. Innis, 446 U.S. 291 (1980). Innis held "the term 'interrogation' under Miranda refers not only to express questioning, but also to 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 Innis analysis involves an assessment of whether the officer should have known her remarks or actions were likely to bring about such a response. See People v. Davis, 36 Cal. 4th 510 (2005).
Questions asked by police as part of the booking process are not considered interrogation when restricted to basic "biological data necessary to complete booking or pretrial services." People v. Elizalde, 61 Cal. 4th 523 (2015). But, under Elizalde, once such questions go beyond those reasonably related to administrative concerns - that is, those essentially neutral such as the subject's name, address, date of birth, place of birth, phone number, and occupation, "the core concerns of Miranda and Innis are implicated." Additionally, an "interrogation" does not occur where a police officer instructs a suspect on how to perform field sobriety tests and asks questions attendant to such tests during an investigation for driving under the influence. Pennsylvania v. Muniz, 496 U.S. 582 (1990). Under such circumstances, pursuant to Muniz, Miranda is inapplicable because the officer's questions and instructions about the procedure are unlikely to be perceived as asking for an incriminating response.
Was the proper Miranda advisement given? (If NO, the statement is inadmissible; if YES, go to next step)
The prosecution has the burden, by a preponderance of the evidence, to establish that the defendant was advised of his or her rights, sufficiently understood these rights and voluntarily waived them. Edwards v. Arizona, 451 U.S. 477 (1981). Pursuant to Miranda, a person subjected to a custodial interrogation must be apprised of the following rights prior to questioning by law enforcement: (1) the right to remain silent, (2) anything he says can be used against him in a court of law, (3) he has the right to have an attorney present for questioning, and (4) if indigent, an attorney will be appointed before any questioning if he so requests. See Berghuis v. Thompkins, 560 U.S. 370 (2010).
Police are only required to fully advise and reasonably convey to a suspect the necessary content; no specific language is required in order to render the advisement legally sufficient. Florida v. Powell, 559 U.S. 50 (2010). The U.S. Supreme Court "has never indicated that the 'rigidity' of Miranda extends to the precise formulation of the warnings given a criminal defendant." California v. Prysock, 453 U.S. 355 (1981). In Powell, a Miranda warning was deemed sufficient when the defendant was told he had the right to talk to an attorney before questioning and a right to exercise his rights at any time during the course of the interrogation. Similarly, informing a suspect that he has the right to appointed counsel "if and when" he goes to court is procedurally adequate. Duckworth v. Eagan, 492 U.S. 195 (1989) [no "precise formulation" or "talismanic incantation" required]. However, the warnings must communicate the rights and advisals in clear and unequivocal terms - misleading warnings will be considered legally deficient. See U.S. v. Perez-Lopez, 348 F.3d 839 (9th Cir. 2003).
Was there a waiver of Miranda by the defendant OR do any exceptions to the Miranda rule Apply? (If NO to BOTH questions, the statement itself is inadmissible in the people's case-in-chief; if YES to EITHER question, the statement is admissible)
Berghuis found the prosecution must establish, by a preponderance of the evidence, that the defendant intelligently and voluntarily relinquished the rights under Miranda after he was afforded an adequate and sufficient advisement. A valid waiver of Miranda rights can be express or implied. A waiver may be implied by words or actions where, under the totality of circumstances, a suspect willfully submits to questioning after a full advisement and acknowledgment of rights. North Carolina v. Butler, 441 U.S. 369 (1979). Berghuis also held a waiver can properly be inferred under the given circumstances.
Under limited circumstances, compliance with the Miranda rule is not required due to the overriding interest in public safety, the wellbeing of a crime victim or the safety of law enforcement personnel. For example, Miranda warnings are unnecessary when the police pose questions to a subject relating to the location of a dangerous weapon or due to other concerns for public safety. See New York v. Quarles, 467 U.S. 649 (1984); see also People v. Simpson, 65 Cal. App. 4th 854 (1998).
Moreover, in situations where officers are primarily concerned with rescuing a victim and a subject responds to questions voluntarily without the benefit of Miranda warnings, the elicited responses are admissible even though they may be incriminating. People v. Davis, 46 Cal. 4th 539 (2009). Furthermore, questions asked to ensure an officer's personal safety are considered outside the parameters of Miranda, provided they are not directed at obtaining incriminating information. See People v. Sims, 5 Cal. 4th 405 (1993). Lastly, statements obtained in violation of Miranda during police negotiations in the course and scope of an emergency situation (i.e., for safety of hostages) can be admissible. See People v. Mayfield, 14 Cal. 4th 668 (1997).
Elia V. Pirozzi is a judge of the San Bernardino County Superior Court.