FIRST DISTRICT APPELLATE PROJECT

TRAINING SEMINARJanuary 21, 2011

MIRANDA BASICS AND CURRENT DEVELOPMENTS

Jonathan D. Soglin, Staff AttorneyRichelle Becker, Law ClerkTiffany Gates, Law Clerk

January 2011

Table of ContentsPage

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -1-

I. Miranda . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -2-

A. Miranda in a Nutshell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -2-

B. Constitutionally Based; Not Merely Prophylactic . . . . . . . . . . . . . . . . . . . -2-

C. Miranda Warnings Are Required When the Suspect is Subject to CustodialInterrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -3-

D. Custody for Miranda = Formal Arrest or Restraint on Movement to aDegree 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-

-1-

INTRODUCTION

Two primary constitutional considerations govern the admissibility of defendants’confessions and admissions in criminal prosecutions: the voluntariness of thestatements and whether they were obtained in violation of Miranda requirements.

The voluntariness jurisprudence, rooted in English common law, developed first, withthe Supreme Court holding that admission of coerced confessions was unconstitutional.Although an early case based the rule barring admission of coerced confessions on theFifth Amendment right to remain silent, the Court primarily based the rule on dueprocess 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 FifthAmendment); Brown v. Mississippi (1936) 297 U.S. 278 (coerced confession inadmissibleunder Due Process Clause).)

In the 1960s, a pair of Warren Court decisions “changed the focus of much of theinquiry in determining the admissibility of suspects’ incriminating statements.”(Dickerson, 530 U.S. at 434.) First, the Court held that the Fifth Amendment right againstself incrimination is incorporated in the Fourteenth Amendment’s Due Process Clauseand 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 custodialinterrogation are inadmissible in the prosecutor’s case in chief unless the officer advisedthe suspect of his rights (detailed below) and the suspect voluntarily waived thoserights. (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 wereinadmissible where, during custodial interrogation, the suspect had requested and beendenied the opportunity to consult an attorney and police officers had not properlyadvised him of his right to remain silent.

In 2010, a trio of United States Supreme Court decisions modified or elaborated onimportant aspects of Miranda law, thus precipitating these materials which outline boththe 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 subjectof countless published decisions, many of which are very fact intensive. An outline likethis can only provide one reference point and research should never end here. Casescited herein are only representative.

-2-

I.

MIRANDA

A. Miranda in a Nutshell

A defendant’s own statements made during custodial interrogation by law enforcementofficials are inadmissible in the prosecutor’s case in chief unless (1) they were precededby warnings to the defendant that he has a right to remain silent, that any statement hedoes make may be used as evidence against him, and that he has a right to the presenceof an attorney, either retained or appointed and (2) the defendant voluntarily waivedthose rights:

“[T]he prosecution may not use statements, whether exculpatory orinculpatory, stemming from custodial interrogation of the defendantunless it demonstrates the use of procedural safeguards effective to securethe privilege against self-incrimination. By custodial interrogation, wemean questioning initiated by law enforcement officers after a person hasbeen taken into custody or otherwise deprived of his freedom of action inany significant way. As for the procedural safeguards to be employed,unless other fully effective means are devised to inform accused personsof their right of silence and to assure a continuous opportunity to exerciseit, the following measures are required. Prior to any questioning, theperson must be warned that he has a right to remain silent, that anystatement he does make may be used as evidence against him, and that hehas a right to the presence of an attorney, either retained or appointed.The defendant may waive effectuation of these rights, provided thewaiver 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” andwhether the statements were made in response to “interrogation.” If there was nocustodial interrogation, Miranda does not apply. If there was custodial interrogation,then the questions shift to whether and when the officer gave proper and completeMiranda 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

-3-

in Dickerson that Miranda protections were not constitutionally required and indeedsuperseded by a 1966 federal statute, 18 U.S.C. § 3501, which stated that confessionsshall be admissible in federal criminal prosecutions if they were voluntary. (UnitedStates v. Dickerson (1999) 166 F.3d 667, 687-690.) The Supreme Court, in an opinionauthored by Chief Justice Rehnquist, reversed, holding that section 3501 could notsupersede 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 factsthat it had applied Miranda to state court prosecutions (530 U.S. at 438), it “had allowedprisoners to bring alleged Miranda violation before the federal courts in habeas corpusproceedings” (530 U.S. at 439, n.3), that Miranda itself had described the question beforeit as involving the privilege against self-incrimination and the need “‘to give concreteconstitutional 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 theMiranda opinion contains numerous statements indicating that the Court understooditself to be “announcing a constitutional rule” (530 U.S. at 439, and n. 4).

The constitutional foundation of the Miranda protections is the Fifth Amendmentprivilege against self-incrimination. (See e.g. Miranda, 384 U.S. at 476 (“The requirementof warnings and waiver of rights is a fundamental with respect to the Fifth Amendmentprivilege 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 ‘trialright’ protected by Miranda); and Dickerson, 530 U.S. at 439, fn.4 (collecting references inMiranda to protection of Fifth Amendment) and at 440, fn.5 (collecting citations to otherSupreme Court cases referring to Fifth Amendment underpinnings of Miranda).

C. Miranda Warnings Are Required When the Suspect is Subject to CustodialInterrogation.

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 orotherwise 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 DegreeAssociated With Formal Arrest

1. Standard: When determining if a suspect is in custody, “the ultimateinquiry is whether there is a ‘formal arrest or restraint on freedom ofmovement’ of the degree associated with formal arrest.” (California v.Beheler (1983) 463 U.S. 1121, 1125 (per curiam) (citing Oregon v. Mathiason

-4-

(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 toterminate the interrogation and leave.” (Thompson v. Keohane (1995) 516U.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 custodybecause “All of these objective facts are consistent with an interrogationenvironment in which a reasonable person would have felt free toterminate 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 whetheran individual was in custody, a court must examine all of thecircumstances surrounding the interrogation ....”)

3. Appellate Review: Custody Determination is a Mixed Question of Law and Factto 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 custodydepends on the objective circumstances of the interrogation, not on thesubjective views harbored by either the interrogating officers or theperson being questioned.” (Stansbury v. California (1994) 511 U.S. 318,323.) “[A]n officer's views concerning the nature of an interrogation, orbeliefs concerning the potential culpability of the individual beingquestioned, may be one among many factors that bear upon theassessment whether that individual was in custody, but only if theofficer's views or beliefs were somehow manifested to the individualunder interrogation and would have affected how a reasonable person inthat 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 notat the police station. (E.g. Orozco v. Texas (1969) 394 U.S. 324, 327(suspect was considered under arrest and in custody whenquestioned in his bedroom in the early hours of the morningbecause he was not free to leave).) Alternatively, a suspect can bequestioned at the police station, in a coercive environment, and stillnot be considered “in custody,” as long as he is not placed underformal arrest and his freedom of movement is not restricted in anyway. (E.g. Oregon v. Mathiason (1977) 429 U.S. 492 at 496 (where thesuspect voluntarily went to the police station, was told he was notunder arrest, and was allowed to leave after the police interview).)

-5-

b. Where Suspect is Already an Inmate, He or She May Not be “InCustody” for Purposes of Miranda.

(1) Prior to Maryland v. Shatzer (2010) ___ U.S. ___, 130 S.Ct.1213, 1224, the Court had “never decided whetherincarceration constitutes custody for Miranda purposes. Butother courts, including California courts, had held that anincarcerated suspect may not be “in custody.”

(a) The Fourth Circuit held that Miranda did apply toquestioning of an inmate unless there had been a“change in the surroundings of the prisoner whichresults in an added imposition on his freedom ofmovement.” (United States v. Conley (4th Cir. 1985) 779F.2d 970, 973.)

(b) California cases had described a broad-based testconsidering multiple factors: “whether the languagesummoning the defendant from his prison lodgingwas coercive, whether the physical surroundings ofthe questioning were unduly coercive, whether thedefendant was confronted with evidence of guilt, andwhether there was an opportunity given to thisperson to leave the site of the questioning.” (People v.Macklem (2007) 149 Cal.App.4th 674, 678; see alsoPeople v. Fradiue (2000) 80 Cal.App.4th 15, 21.)

(2) In Shatzer, the Court confronted the question in the contextof applying its new rule that a 14-day break in custodyended the presumption that the resumption of questioningby police was coercive. There being a two-and-a-half yearbreak between questioning sessions, the Court in Shatzer hadto determine there had been a break in Miranda custody.Although the defendant had been in prison during the entireperiod in question, the Court found that his release to thegeneral population constituted a break in custody forpurposes of Miranda. The Court reasoned that the coercivepressures of concern in Miranda are not present when thesuspect is already in prison because (1) once theinterrogation ends, they regain the, albeit limited, controlthey had over their lives, (2) they “are not isolated with theiraccusers,” (3) “[t]heir detention ... is relatively disconnected

-6-

from their prior unwillingness to cooperate in aninvestigation,” and (4) “[t]he former interrogator has nopower to increase the duration of incarceration.” (130 S.Ct. at1224-1225.)

(3) It is implicit in Shatzer, however, that a prisoner is in custodyfor purposes of Miranda during the period when he isremoved from the general population and taken elsewherefor questioning. (See 130 S.Ct. at 1225, fn.6 (“We distinguishthe duration of incarceration from the duration of whatmight be termed interrogative custody. When a prisoner isremoved from the general prison population and taken to aseparate location for questioning, the duration of thatseparation is assuredly dependent upon his interrogators.For which reason once he has asserted a refusal to speakwithout assistance of counsel Edwards prevents any efforts toget him to change his mind during that interrogativecustody”) and Ibid. (referring to the “‘inherently compellingpressures’ of custodial interrogation end[ing] when [Shatzer]returned to his normal life” in the prison).)

c. Traffic Stops: Persons temporarily detained pursuant to roadsidetraffic stops are not considered “in custody” because of the briefand non-coercive nature of such stops. (Berkemer v. McCarty (1984)468 U.S. 420, 437-440.) However, “[i]f a motorist is subject totreatment that renders him ‘in custody’ for practical purposes, hewill be entitled to the full panoply of protections prescribed byMiranda.” (Id. at 440.) Note: The Berkemer holding that a person“detained” during a routine traffic is not “in custody” for purposesof Miranda is in tension with the Court’s cases defining “detained”and “in custody” with nearly identical language regarding thesuspect 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, inview of all of the circumstances surrounding the incident, areasonable person would have believed that he was not free toleave”) with Thompson v. Keohane, 516 U.S. at 112 (holding thatperson is in custody for purposes of Miranda if “a reasonableperson” would “have felt he or she was not at liberty to terminatethe interrogation and leave”).)

-7-

d. Suspect’s Age or Experience with Law Enforcement

(1) Yarborough v. Alvarez (2004) 541 U.S. 652, 124 S.Ct. 2140(decided under AEDPA):

(a) Prior History With Law Enforcement. As a de novomatter, consideration of suspect’s prior history withlaw enforcement is an improper factor. Officers willnot likely know the suspect’s history. In addition, therelationship between the past history and whether thecurrent encounter is custodial is speculative. And theinquiry turns too much on the suspect’s subjectivestate of mind. (541 U.S. at 668-669.)

(b) Suspect’s Age. State court did not unreasonablydecline to consider the suspect’s age as a factor. “Ouropinions applying the Miranda custody test have notmentioned the suspect's age, much less mandated itsconsideration. The only indications in the Court'sopinions relevant to a suspect's experience with lawenforcement have rejected reliance on such factors.”(541 U.S. at 666-667.)

(2) J.D.B v. North Carolina, No. 09-11121, Cert. Granted11/1/2010:

(a) QP: Whether a court may consider a juvenile's age ina Miranda custody analysis in evaluating the totalityof the circumstances and determining whether areasonable person in the juvenile's position wouldhave felt he or she was not free to terminate policequestioning and leave?

(b) Note; J.D.B. is on direct review of a state courtdecision, and thus will not be decided throughdeferential AEDPA standards the Court applied inYarborough v. Alvarez.

E. 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.)

-8-

2. Miranda warnings are only required when the suspect is subjected tointerrogation, which is defined as “express questioning or its functionalequivalent.” (Rhode Island v. Innis (1980) 446 U.S. 291, 300-301)

3. In Innis, the Court defined the functional equivalent of expressquestioning as “any words or actions on the part of the police (other thanthose normally attendant to arrest and custody) that the police shouldknow are reasonably likely to elicit an incriminating response from thesuspect.” (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 “expresslyquestioning” and the “functional equivalent” and to only require aninquiry into whether the police conduct was reasonably likely to elicit anincriminating response from the suspect if the case involved words oractions, as opposed to express questioning. (446 U.S. at 301.) Some courts,however, have held that even express questioning does not requireMiranda warnings unless the questioning is reasonably likely to elicit anincriminating response. (See e.g. United States v. Bogle (D.C. Cir. 1997) 114F.3d 1271, 1275 (collecting cases).) (In Muniz, the Court held that certainexpress questions asked during the booking process were not subject toMiranda. But this was not because the Court found such express questionswere 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 thosenormally attendant to arrest and custody) that the police should know arereasonably likely to elicit an incriminating response from the suspect. Thelatter portion of this definition focuses primarily upon the perceptions ofthe suspect, rather than the intent of the police. This focus reflects the factthat the Miranda safeguards were designed to vest a suspect in custodywith an added measure of protection against coercive police practices,without regard to objective proof of the underlying intent of the police. Apractice that the police should know is reasonably likely to evoke anincriminating response from a suspect thus amounts to interrogation.” (Innis, 446 U.S. at 301.) The determination of whether an officer’sstatement is the functional equivalent of interrogation is a highly factualinquiry. A sampling of decisions are provided.

-9-

a. In Innis, while the defendant was being transported to the policestation, one police officer said to another that he hoped policewould continue searching for the missing gun because a studentfrom 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'slocation. The Supreme Court held this was not interrogationbecause nothing from the record indicated the officers were awarethe defendant was particularly susceptible to an appeal to hisconscience. (Id. at 302.)

b. In People v. Clark (1993) 5 Cal.4th 950, the defendant was beingtransported to the hospital by the police to obtain a blood sample.He had previously invoked his Miranda rights. He asked theofficers what the penalty was for the murder for which he wasunder arrest, stating: “ ‘What can someone get for something likethis, thirty years?’ ” (Id. at 982.) The officer responded that he hadnever seen anyone serve more than seven and a half years unlessthe person was a “ ‘mass murderer.’ ” Following this exchange, thedefendant confessed. (Ibid.) The Court held that this conversationdid not constitute an interrogation: “Clearly, not all conversationbetween an officer and a suspect constitutes interrogation. Thepolice may speak to a suspect in custody as long as the speechwould not reasonably be construed as calling for an incriminatingresponse.” (Id. at 985.)

c. The California Supreme Court found no interrogation wheredetectives told the defendant they “knew” he committed murderbecause they found his prints at the scene. This brief statement wasnot interrogation because it was not phrased as a question, and didnot call for an incriminating response. “A brief statement informingan in-custody defendant about the evidence that is against him isnot the functional equivalent of interrogation because it is not thetype of statement likely to elicit an incriminating response.” (Peoplev. Haley (2004) 34 Cal.4th 283, 302.)

6. Miranda Only Applies to Interrogation by Law Enforcement Officials orTheir Agents.

a. Miranda: “By custodial interrogation, we mean questioning initiatedby law enforcement officers ....” (384 U.S. at 444 (emphasis added).)

-10-

b. Miranda does not apply to questioning by undercover officers: Apolice officer disguised as an inmate was not interrogating thedefendant when (deceptively) engaging him in conversation aboutthe murder he was suspected of. “It is the premise of Miranda thatthe danger of coercion results from the interaction of custody andofficial interrogation.” (Illinois v. Perkins (1990) 496 U.S. 292, 297.) “Where the suspect does not know that he is speaking to agovernment agent there is no reason to assume the possibility thatthe suspect might feel coerced.” (Id. at 299.) In Perkins, thedefendant was serving a prison sentence on an unrelated crimewhen the police sent in an undercover agent to investigate him fora murder. (Id. at 295.) Since murder charges had not been filed,Perkins’ right to counsel had not yet attached, allowing informationfrom his unwarned confession to be used against him. (Note thatthe “government may not use an undercover agent to circumventthe Sixth Amendment right to counsel once a suspect has beencharged with the crime,” so this situation may be anomalous. (Id.at 299; cf. Massiah v. U.S. (1964) 377 U.S. 201, 207 (wheredefendant’s incriminating statement to an informant could not beused at trial because the conversation took place post-indictmentafter his right to counsel attached).)

c. Statements to Jailhouse Visitors - Miranda does not apply:

(1) Officer’ s knowledge that allowing the visitor (defendant’swife) to see defendant might illicit an incriminatorystatement does not rise to the level of coercion or apsychological 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 ofinterrogation, even when detectives took the initiative tobring the visitor to see the defendant and recorded theconversation. (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 fatherwas not police interrogation subject to Miranda requirementsPeople v. Mayfield (1997) 14 Cal.4th 668, 758.)

-11-

(4) It is not improper for the police to grant defendant’srelatives special visitation privileges on the unspoken hopethat defendant might incriminate himself. (People v. Medina(1990) 51 Cal.3d 870, 892.)

d. 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 court-appointed psychiatrist made during competencyexamination. In the absence of valid wavier, such statementscan only be used at competency hearing. (Estelle v. Smith(1981) 451 U.S. 454, 466-469.) In Penry v. Johnson (2001) 532U.S. 782, 794-795, a federal habeas case decided underAEDPA, the Court found that the state court decisionfinding no Fifth Amendment violation was not contrary to,or unreasonable application of Estelle where the defendantmade his mental health an issue, the defendant’s owncounsel sought the psychiatric examination, the defendantfirst elicited the challenged statement during examination ofhis own witness, and the challenged statements were madeduring a competency examination conducted during a priorunrelated case and prior to the commission of the chargedoffenses.

(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 appearand answer questions truthfully does not convert otherwisevoluntary statements into compelled statements.” (People v.Macias (1997) 16 Cal.4th 739, 755 (citing Minnesota v. Murphy(1984) 465 U.S. 420, 431-435).)

F. Exceptions

1. Booking Question:

a. In Pennsylvania v. Muniz (1990) 496 U.S. 582, a four-justice pluralityrecognized “a ‘routine booking question’ exception which exempts

-12-

from Miranda's coverage questions to secure the ‘“biographicaldata necessary to complete booking or pretrial services.”’” (Id. at601, plur. opn. of Brennan, J.) However, this exception does notinclude questions asked during booking “‘that are designed to elicitincriminatory admissions.’” (Id. at 602, fn. 14.) In Muniz, where thedefendant had been tried and convicted of DUI, the Court held thatan answer to a question regarding the date of the defendant’s sixthbirthday was inadmissible (Id. at 600), but answers to questionseliciting his name, address, height, weight, eye color, date of birth,and current age were admissible (Id. at 601-602).

b. In People v. Morris (1987) 192 Cal.App.3d 380, a jailer asked adefendant during booking, “Who are you accused of killing?,” andreceived the answer, “I killed my sister-in-law.” ( Id. at p. 388.) Thejailer insisted his question was “solely for the purpose of jailsecurity and not to elicit information from defendant that might beused against him.” ( Id.) The Court in Morris observed, “The focusof our analysis is not what the police may lawfully ask a criminalsuspect to ensure jail security. The police may ask whatever theneeds of jail security dictate. However, when the police know orshould know that such an inquiry is reasonably likely to elicit anincriminating response from the suspect, the suspect’s responsesare not admissible against him in a subsequent criminal proceedingunless the initial inquiry has been preceded by Mirandaadmonishments.” (Id. at 389-390.)

2. Public Safety:

a. Police officers may ask incriminatory questions to a suspect whenpublic 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 offinding the gun).

b. In United States v. Carrillo (9th Cir. 1994) 16 F.3d 1046, the NinthCircuit held that the public safety exception applied to a pre-searchquestion regarding whether a detainee was in possession of drugsor needles. (16 F.3d at 1049.) But in People v. Cressy (1996) 47Cal.App.4th 981, then-Court of Appeal Justice Corrigan explainedthat the public safety questions “must be narrowly tailored toprevent potential harm” and “[q]uestions about needles or other

-13-

potentially contaminated sharp objects would be permissible.” (47Cal.App.4th at 989.) But, “[q]uestions about drugs in general, mostfirearms or similar kinds of seizable, but not immediatelydangerous, items would fall outside this narrow exception.” (Id.) InPeople v. Ross (2008) 162 Cal.App.4th 1184, 1187, 1191, the Court didnot reach any conclusion about the propriety of questions aboutpossession of drugs. In that case, the police officer found a knife butno drugs. (Id. at 1187.) On appeal, the defendant only challengedthe police officers question about weapons: “[defendant] contendsthat she had a Fifth Amendment right not to disclose herpossession of the knife” (Id. at 1191). The Court of Appeal, citingthe public safety exception to Miranda, held only that the policeofficer “properly inquired whether she possessed any weapons.(Ibid.) The court in Ross said nothing about propriety of questionsabout drugs.

3. California’s Rescue Doctrine: The rescue doctrine is analogous to (but notsubsumed within) the public safety exception. This doctrine isindependent from the public safety exception because it pre-dates Quarlesand 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 ofsaving the life of a missing victim exists, noncoercive questions may beasked of a material witness in custody even though answers to thequestions may incriminate the witness.” (Id. at 594.) In Davis, suspectRichard Allen Davis was in police custody for kidnapping Polly Klass,and had invoked his Miranda rights. (Id. at 591.) Four days after invocationof his right to remain silent and request for counsel, a detective re-inititated contacted with Davis in jail, asking him to disclose where Polly’sbody was. (Id.) The Court ruled that the admission and evidence thatfollowed were admissible under the rescue doctrine, despite the fact thatPolly had been missing for 64 days, and in past cases the doctrine wasapplied when the victim had been missing for a much shorter time. (Id. at594.) “[T]he length of time a kidnap victim has been missing is not, byitself, dispositive of whether a rescue is still reasonably possible.” (Id.)

G. Form of Miranda Warnings

1. Elements of Warnings (see Miranda, 386 U.S. at 479.)

a. “that he has the right to remain silent”

-14-

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 himprior to any questioning if he so desires.”

2. Warnings Need Not be Verbatim as Stated in Miranda.

a. State court “erred in holding that the warnings were inadequatesimply because of the order in which they were given.” (Californiav. Prysock (1981) 453 U.S. 355, 361.)

b. The Court deemed the Miranda advice adequate where the Mirandaform stated, in part, that an attorney “will be appointed for you, ifyou 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) Mirandadoes not require that the jail have an attorney available on call toadvise prisoners and, thus, Miranda only requires that questioningcease unless the suspect waives his rights. (Id. at 204.)

c. “The four warnings Miranda requires are invariable, but this Courthas not dictated the words in which the essential information mustbe conveyed. (Florida v. Powell (2010) 130 S.Ct. 1195, 1204.) In Powell,the suspect was advised: “You have the right to remain silent. Ifyou give up the right to remain silent, anything you say can beused against you in court. You have the right to talk to a lawyer beforeanswering any of our questions. If you cannot afford to hire a lawyer, onewill be appointed for you without cost and before any questioning. Youhave the right to use any of these rights at any time you wantduring this interview.” (130 S.Ct. at 1200 (emphasis added).)Relying on Duckworth, the Court in Powell, found the advisementssufficient, concluding that the suspect would not understand theadvice to mean that the he could consult an attorney before eachquestion but that he would be alone with the interrogators whenactually answering the questions. (Id. at 1205.) “In context ... theterm ‘before’ merely conveyed when Powell's right to an attorneybecame effective-namely, before he answered any questions at all.Nothing in the words used indicated that counsel's presence wouldbe restricted after the questioning commenced.” (Ibid.)

-15-

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 distinctinquiry from the question of whether there was a valid waiver of rights. InBerghuis, the defendant argued separately that his statements were inadmissiblebecause he actually invoked his right to remain silent (130 S.Ct. at 2259) andbecause any he did not voluntarily waive his right to remain silent (Id. at 2260-2261.) These are distinct questions: “ Even absent the accused's invocation of theright to remain silent, the accused’s statement during a custodial interrogation isinadmissible at trial unless the prosecution can establish that the accused ‘in factknowingly and voluntarily waived [Miranda] rights’ when making thestatement.” (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 untilan attorney is provided, unless the suspect himself initiates furthercommunication. (See Edwards v. Arizona (1981) 451 U.S. 477, 484-485.) Edwards rule not violated where suspect initiates the furtherconversation. (Oregon v. Bradshaw (1983) 462 U.S. 1039, 1045-46(plurality).)

b. In order to receive Edwards protection, invocation of the right tocounsel must be unambiguous, or sufficiently clear that areasonable officer under the circumstances would understand thatthe suspect is requesting an attorney. (Davis v. U.S. (1994) 512 U.S.452, 459.) If a suspect’s request to have counsel present isambiguous or equivocal, the police are not required to stopquestioning or ask clarifying questions. (Davis, supra 512 U.S. 452at 459.)

(1) “Maybe I should talk to a Lawyer” - no invocation. (Id. at455, 459)

(2) “I think it'd probably be a good idea for me to get anattorney” - no invocation (People v. Bacon (2010) 50 Cal.4th1082, 1105.)

(3) “if for anything you guys are going to charge me I want totalk to a public defender too, for any little thing” - no

-16-

invocation. (People v. Gonzalez (2005) 34 Cal.4th 1111, 1116,1125-1127.)

c. The Edwards Presumption: If further contact is initiated by policeafter the suspect has invoked his right to have counsel present, it ispresumed 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. In2010, the Court held that the Edwards presumption does not applywhen there has been a 14 day break in custody. (Maryland v. Shatzer(2010) ___ U.S. ___, 130 S.Ct. 1213, 1223.) In Shatzer, the defendanthad been in prison custody on an unrelated offense. He refused totalk to investigators without an attorney present. Over two yearslater, another police officer questioned the defendant about thesame events about which the defendant had previously invokedMiranda. Under the old Edwards rule, the defendant’s waiver ofMiranda rights would be presumed to be involuntary because theconversation was at the behest of law enforcement. However, theCourt fashioned a new rule, holding that when there has been a14-day break in custody, the Edwards presumption ends. In thisinstance, a “break in custody” of two and a half years had occurred,despite the fact that the defendant remained in prison custody onan unrelated offense the entire time. (Ibid. at 1217-1219.)

2. Right to Remain Silent: The Supreme Court recently held that, like therequirement 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 beunambiguous. (Berghuis v. Thompkins, supra, 130 S. Ct. 2250 at 2260.) Requiring a suspect to unambiguously assert his right to remain silent isdesigned to remove the burden on law enforcement inherent in having to“guess” at whether a suspect is invoking his Miranda rights or not. (Id.) InBerghuis, the defendant did not unambiguously invoke his right to remainsilent “by not saying anything for a sufficient period of time.” (Id. at 2259-2260.)

J. Waiver of Miranda Rights

1. A suspect may waive his Miranda rights so long as his waiver is madevoluntarily, knowingly, and intelligently. (Miranda, 384 U.S. at 444.) TheCourt “reassert[ed]” the “high standards of proof for the waiver ofconstitutional rights.” (Id. at 475 (citing Johnson v. Zerbst (1938) 304 U.S.

-17-

458, 464 (defining waiver as “intentional relinquishment or abandonmentof a known right or privilege”)).)

2. A “heavy burden” is on the prosecution to establish that the defendantknowingly and intelligently waived his or her rights. (Id. at 475.)

3. A waiver is valid if, under a “totality of circumstances” test, the courtfinds “both an uncoerced choice and the requisite level ofcomprehension.” (Moran v. Burbine (1986) 475 U.S. 412, 421.) The inquiryinto the facts and circumstances of the case may include the “background,experience, and conduct of the accused.” (Zerbst, 304 U.S. 458 at 464.) Thestate’s burden to establish waiver is by a preponderance of the evidence.(Berghuis v. Thompkins (2010) 130 S.Ct. 2250, 2261.) “[T]he relinquishmentof the right must have been voluntary in the sense that it was the productof a free and deliberate choice rather than intimidation, coercion, ordeception.” (Burbine, supra, 475 U.S. 412 at 421.) “[T]he waiver must havebeen made with a full awareness of both the nature of the right beingabandoned 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 rightto remain silent or of the right to counsel is usually strong proof ofthe validity of that waiver, but is not inevitably either necessary orsufficient to establish waiver. The question is not one of form, butrather whether the defendant in fact knowingly and voluntarilywaived 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 theactions and words of the person being interrogated.” (Id. at 374) The Miranda court held “a valid waiver will not be presumedsimply from the silence of the accused after warnings are given.....” (Miranda, 384 U.S. 436 at 475), while Butler clarified that silence canconstitute waiver when coupled with an understanding of therights and a course of conduct indicating waiver. (Butler, 441 U.S.369 at 373.) The giving of proper Miranda warnings coupled with anuncoerced statement, is insufficient to establish a waiver of Mirandarights. (Berghuis, 130 S.Ct. at 2261.) The prosecution must also showthat the suspect understood his or her rights. (Id.)

-18-

c. In Berghuis, the court recently found an implicit and valid waiver ofMiranda when a suspect made only a few verbal responses andoccasionally nodded his head over the course of a three-hourinterrogation. (Thompkins, supra, 130 S.Ct. 2250 at 2257.) The Courtheld the suspect “engaged in a course of conduct indicatingwaiver” by not clearly invoking Miranda, not remaining completelysilent, and by not offering any evidence that he did not understandthe written copy of his Miranda rights provided to him by officers. (Id. at 2262.)

K. Consequences of Miranda Violation

1. Inadmissible in Case in Chief. Statements elicited in violation of Mirandaare 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 admissibleagainst a defendant in the prosecutions case-in-chief, but thestatement can be used to impeach the defendant if he chooses totestify. This exception was designed to prevent Miranda from beingused 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 exercisehis right to remain silent, “it would be fundamentally unfair and adeprivation of due process to allow the arrested person's silence tobe 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 notrequire 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 anunwarned statement may be admissible, although the unwarnedstatement must be suppressed.

a. In Oregon v. Elstad (1985) 470 U.S. 298, 300, the Court rejectedapplication of the Wong Sun v. United States (1963) 371 U.S. 471,fruit-of-the-poisonous-tree doctrine in analyzing the admissibility

-19-

of subsequent warned statements made after unwarned statements.Subsequent statements are analyzed solely on the basis of whetherthey are knowing and voluntary. (470 U.S. at 309.) “[A] suspectwho has once responded to unwarned yet uncoercive questioningis not thereby disabled from waiving his rights and confessing afterhe has been given the requisite Miranda warnings.” (470 U.S. at318.)

b. Missouri v. Seibert (2004) 542 U.S. 600: two-step interrogations canviolate Miranda.

(1) In Seibert, the officers intentionally interrogated the suspectwithout Miranda warnings. After the suspect confessed, theofficer’s Mirandized him, obtained a waiver, and thedefendant again confessed. A majority of the Court foundthis process to violate Miranda.

(2) Although the Supreme Court was fractured on this point,most lower courts read Seibert to hold that the secondstatement is inadmissible under Miranda only if there was adeliberate intent to evade the Miranda requirements inconnection with the first statement. (See e.g. People v. Rios(2009) 179 Cal.App.4th 491, 505 (“Although the pluralitywould consider all two-stage interrogations eligible for aSeibert inquiry, Justice Kennedy's opinion narrowed theSeibert exception to those cases involving deliberate use ofthe two-step procedure to weaken Miranda's protections”);People v. Camino (2010) 188 Cal.App.4th 1359, 1369, pet. forrev. pending in No. S187857; United States v. Williams (9thCir. 2006) 435 F.3d 1148, 1157; but see United States v.Carrizales-Toledo (10th Cir.2006) 454 F.3d 1142; see alsoWeisselberg, Mourning Miranda, 96 Cal. L. Rev. 1519, 1549-52(2008) (collecting cases).)

(3) Standard of review for question of whether two-stepinterrogation was deliberate. (Camino, 188 Cal.App.4th at1371-1372 (factual inquiry subject to “substantial evidence”test).)

L. Showing Prejudice: Admission of evidence in violation of Miranda is reversibleunless the prosecution can show the error was harmless beyond a reasonabledoubt. (People v. Samayoa (1997) 15 Cal.4th 795, 831; People v. Johnson (1993) 6

-20-

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, theCourt federal habeas review of Fourth Amendment claims is not available if thedefendant had a full and fair chance to litigate the claim in state court. “Stone'srestriction on the exercise of federal habeas jurisdiction does not extend to a stateprisoner's claim that his conviction rests on statements obtained in violation ofthe safeguards mandated by Miranda v. Arizona (1966) 384 U.S. 436.” (Withrow v.Williams (1993) 507 U.S. 680, 682-683.)