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LU Ref# CAS10019

January 08, 2025

Author Ref. No: Vol 30. No. 1

SPECIAL UPDATE New & Amended Laws for 2025 – What You Need to Know: Exclusive Professional Subscribers’ Edition

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Special Subscribers’ Edition: New Laws for 2025 – What You Need to Know

Each year retired Deputy District Attorney Robert Phillips brings our Professional Subscribers a comprehensive look at the new and amended statutes for the year. These are critical changes you need to know as a law enforcement officer on the streets or a lawyer in the courtroom. Stay up to date at Legal Updates with this update and others throughout the year.

This edition is one of our most sought-after publications of the year and has been described as a “must have” for law enforcement officers, attorneys and judges.

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Thank you for your service and stay safe!

– Legal Updates Team

NEW LAWS COVERED IN OUR 2025 NEW AND AMENDED STATUTES UPDATE:

Animal Abuse
Assault and Battery
Consumer Protections
Controlled Substances, Diversion
Domestic Violence, Sex Offenders, Sexual Assault, Child Pornography
Revenge Pornography, Drink Spiking
Elections, Free Speech
Firearms
Human Trafficking
Racial Issues
Restraining and Protective Orders
Search Warrants, Wiretaps
Social Media, Cyber Protection, Artificial Intelligence and Social Media Platforms
Theft-Related Crimes; Vehicle Breaking, Entering, and Possession of the Property Stolen
Tobacco Products
Vehicle Code

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LU Ref# CAS00018

March 27, 2024

Author Ref. No: Twenty-Fourth Edition

SPECIAL UPDATE A Pro Subscribers Exclusive: Your Essential Guide to the Fourth Amendment and Search and Seizure. (TABLE OF CONTENTS)

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Important note: Due to its size you must download the Full Update and Table of Contents separately. To download the Full Update (2177 pages) please scroll up to the green highlighted box and click on the download button. This will only be visible to our Professional Members who are logged in to our site. If you have not yet downloaded the Full Update, please click here after downloading the Table of Contents.

Brief Description of this update: A Pro Subscribers Exclusive Your Essential Guide to the Fourth Amendment and Search and Seizure.

This annual compendium of Fourth Amendment and search and seizure issues, compiled by retired Deputy District Attorney Robert Phillips, includes a concise but detailed discussion of the most important guidelines you need on these issues. Whether you are an officer, investigator, attorney preparing for a motion, or a judge deciding a Fourth Amendment issue, you will find this resource invaluable. According to retired Honorable Superior Court Commissioner Stephany Joy, this was among the “most referenced resource” used by her colleague judges on the Sonoma County Superior Court criminal bench.

A resource second to none in California, this 24th annual update comprises 20 searchable chapters covering the Fourth Amendment A through Z. And it’s all accessible on your cellphone, laptop or desktop computer.

Included for our Pro Subscribers, discussions of:

The Constitutional Basis for Searches and Seizures
Due Process
Double Jeopardy
Fruit of the Poisonous Tree
Expectation of Privacy
Victim’s Rights
Civil Liability and Qualified Immunity
Standards of Proof
The Trial Court and Prosecutor’s Immunity
Consensual Encounters, Detentions and Arrests
Use of Force
Warrantless Searches and Seizures
And much, much more

This publication is an exclusive benefit for our Pro Subscribers. To update your subscription to include access to these articles and more, please login and upgrade your plan today.

A special note from our publisher: For those who know Robert Phillips, his dedication to our subscribers is unmatched. He has devoted much of his time during retirement researching new case decisions and changes in the law. For example, the latest update is more than 2,000 pages, plus 105 pages of detailed table of contents. In addition to spending nearly a year of research on this project, he spends months editing and formatting the lengthy document. All of this is offered at no additional cost to our Pro Subscribers. We thank our Pro Subscribers for your support in making our website possible. If you are not already a Pro Subscriber, we ask that you consider upgrading here. Our 50% off promotion is still available if you sign up now. Your membership supports our ability to bring you these important resources, including the research and publication of this critical material. If you are feeling extra tipsy and would like to offer Mr. Phillips a direct donation, please click here to offer a token of your appreciation. Thank you for your consideration. Stay safe!

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LU Ref# CAS00017

March 27, 2024

Author Ref. No: Twenty-Fourth Edition

SPECIAL UPDATE A Pro Subscribers Exclusive: Your Essential Guide to the Fourth Amendment and Search and Seizure. (FULL UPDATE)

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Important note: Due to its size you must download the Full Update and Table of Contents separately. To download the Full Update (2177 pages) please scroll up to the green highlighted box and click on the download button. This will only be visible to our Professional Members who are logged in to our site. If you have not yet downloaded the Table of Contents, please click here after downloading the full update.

Brief Description of this update: A Pro Subscribers Exclusive Your Essential Guide to the Fourth Amendment and Search and Seizure.

Included for our Pro Subscribers, discussions of:

The Constitutional Basis for Searches and Seizures
Due Process
Double Jeopardy
Fruit of the Poisonous Tree
Expectation of Privacy
Victim’s Rights
Civil Liability and Qualified Immunity
Standards of Proof
The Trial Court and Prosecutor’s Immunity
Consensual Encounters, Detentions and Arrests
Use of Force
Warrantless Searches and Seizures
And much, much more

This publication is an exclusive benefit for our Pro Subscribers. To update your subscription to include access to these articles and more, please login and upgrade your plan today.

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LU Ref# CAS00016

January 04, 2024

Author Ref. No:

SPECIAL UPDATE 2024 New and Amended Statutes” Edition (For Pro Subscribers Only)

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The California Legal Update - New and Amended Statutes Edition
Vol. 29 No. 1
January 1, 2024

By: Robert C. Phillips
Deputy District Attorney (Retired)
robert@legalupdates.com
(877) 266-4003

www.legalupdates.com®

DISCLAIMER NOTICE: The information provided in this email and any other email from LEGALUPDATES.COM® to you does not and is not intended to, constitute legal advice. Instead, all information, content, and materials contained in our email(s) are for general informational purposes only and do not address your particular situation. Please contact your attorney to obtain legal advice with respect to your particular legal matter. For further information, please review our disclaimer and terms & conditions https://legalupdates.com/terms-condition

THIS EDITION’S WORDS OF WISDOM:

“I finally figured out why I look so bad in pictures. It’s my face.”

IN THIS ISSUE:

Administrative Notes:

New and Amended Statutes; Disclaimer . . . ....................... . . . . . . . . . . . . . 2

New and Amended Statutes:

Anti-Reproductive Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Abortions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

California Government Justice Commissions and Powers . . . . . . . . . . . . . . . . 6

Child Abuse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

Controlled Substances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

Elder and Dependent Adult Abuse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13

Elections Laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . .13

Excited Delirium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13

Firearms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 15

Good Samaritan Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . .45

Hate Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ,. . . . . .46

Homeless Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .48

Homicide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .48

In-Vehicle Cameras. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Juveniles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 49

Law Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

Marijuana (Cannabis) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

Missing Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . .61

Post-Conviction Probation Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

Prisoners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

Prosecutors’ Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .70

Racial Prejudice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

Restraining Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . .72

Sexual Assault Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .72

Superior Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . .73

Vehicle Code Violations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . .73

Victims of Crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .79

ADMINISTRATIVE NOTES:

New and Amended Statutes; Disclaimer: The statutes listed here are not intended to cover the entire body of the Legislature’s work for 2023, nor the multiple Initiatives approved at the voters’ booth. Only those statutes believed to be of interest to most law enforcement officers, with the concerns of prosecutors in mind, are included. Sentencing, procedural, and/or administrative rules, typically covered better in other publications, and other technical, non-substantive changes, have been avoided except when important to the substance of a new or amended offense. Statutes that affect post-conviction (i.e., appellate) proceedings are also not included. The statutes that are included have been severely paraphrased, the degree of detail being dependent upon the newness, importance, and/or complexity of the statute. Although I have made a sincere effort to avoid taking any part of a statute out of context, it is strongly recommended that the unedited statute be consulted before attempting to use it either in the field or the courtroom. The effective date of each new or amended statute is January 1, 2024, unless otherwise indicated. Bolding and italics have been added for emphasis.

NEW AND AMENDED STATUTES:

Anti-Reproductive Rights:

Pen. Code § 13777 (Amended; AB 134; Effective July 10, 2023): Anti-Reproductive Rights Crime Reports to the Attorney General:

The frequency that district attorneys, city attorneys, and law enforcement agencies must report anti-reproductive rights crimes to the Attorney General is increased by amendment from annually to monthly. This delays from January 1, 2025 to July 1, 2025, the annual report the Attorney General is required to submit to the Legislature about these crimes.

Pen. Code § 13778.3 (New; SB 345): The Reproductive Rights Law Enforcement Act:

A new section is added to the “Reproductive Rights Law Enforcement Act” (P.C. §§ 13775–13778.2), prohibiting a state or local government employee, or a person or entity acting on behalf of a local or state government, from cooperating with, or providing information or resources to, an individual or agency seeking to apprehend or arrest a fugitive from another state who is accused of conduct related to abortion or gender-affirming care that is legal in California.

This new law requires any out-of-state subpoena, warrant, wiretap order, pen register trap and trace order, legal process, or request from a law enforcement agent or entity to include an affidavit or declaration under penalty of perjury that the discovery is not in connection to an out-of-state proceeding involving abortion or gender-affirming care that would be legal in California, unless the out-of-state proceeding is “based in tort, contract, or on statute;” or is “actionable, in an equivalent or similar manner, under the laws of this state;” or was “brought by the patient who received a legally protected health care activity or the patient’s legal representative.”

A California corporation that provides electronic communication services or remote computing services to the general public is prohibited from complying with an out-of-state subpoena, warrant, wiretap order, pen register trap and trace order, other legal process, or a request by a law enforcement agent or entity seeking records that would reveal the identity of customers using those services, data stored by or on behalf of customers, or the content of communications, unless the legal process or request includes an affidavit or declaration under penalty of perjury that the discovery is not in connection to an out-of-state proceeding involving abortion or gender-affirming care that would be legal in California.

Note: This bill also amends and creates a number of sections in various codes to prevent the enforcement or effect in California of other states’ laws on abortion and “gender-affirming care.” (E.g., see Pen. Code § 187; Abortion Exception for Homicides; Pen. Code § 847.5: Bail Bondsmen and Abortion, Contraception, or Gender-Affirming Care-Related Arrest Warrants, below; P.C. §1549.15 (New; SB 345), for definitions for “gender-affirming health care,” “gender-affirming mental health care;” “legally protected health care activity;” and “reproductive health care services.” Pen. Code § 1299.02: Bail Bondsmen Arresting a Bail Fugitive From Another State for an Offense Related to Abortion, Contraception, or Gender-affirming Care; Punishment

Abortions:

Pen. Code § 187 (Amended; SB 345): Abortion Exception for Homicides:

Subdivision (b) continues to provide that P.C. § 187 does not apply to a person who commits an act that results in the death of a fetus if any one of three circumstances applies:

Subd. (b)(1): This subdivision is amended to add a cross-reference to the Reproductive Privacy Act (H&S §§ 123460–123469), which became law on January 1, 2003, and replaced the Therapeutic Abortion Act, which was previously in Article 2 (commencing with H&S § 123400) of Chapter 2 of Part 2 of Division 6 of the Health & Safety Code. The word “former” is added in front of “Therapeutic Abortion Act.” As a result, the abortion exemption in subdivision (b)(1) now provides that the death of a fetus is not murder if the act complies with the former Therapeutic Abortion Act or with the current Reproductive Privacy Act.

Subd. (b)(2): This subdivision, which applies to a physician or surgeon committing an act that results in the death of a fetus, where childbirth would result in the death of the mother to a medical certainty, or where her death would be substantially certain or more likely than not, is amended, changing the term “mother of the fetus” to “person pregnant with the fetus.”

(b)(3): This subdivision which provides an exemption for an act solicited, aided, abetted, or consented to by the mother of the fetus, is expanded to also include “an act or omission by the person pregnant with the fetus.” This subdivision now reads as follows: “It was an act or omission by the person pregnant with the fetus or was solicited, aided, abetted, or consented to by the person pregnant with the fetus.”

Note: This bill further amends and creates a number of sections in various codes to prevent the enforcement or effect in California of other states’ laws on abortion and “gender-affirming care.”

Pen. Code § 847.5 (Amended; SB 345): Bail Bondsmen and Abortion, Contraception, or Gender-Affirming Care-Related Arrest Warrants:

As amended, this section now prohibits bail bondsman from requesting an arrest warrant for a fugitive in California who escaped bail for an offense in another state related to abortion, contraception, or gender-affirming care that is legal in California. Prohibits a magistrate in California from issuing such an arrest warrant.

A bail bondsman or person who apprehends or arrests, without a magistrate’s order, a person who is a fugitive from another state for an offense related to abortion, contraception, or gender-affirming care that is legal in California, is not eligible for a bail license (Ins. C. § 1800) or a license as a private investigator (B&P §§ 7512–7573.5), or if already licensed, must forfeit the license.

Any person taken into custody by a bail agent for an offense committed in another state related to abortion, contraception, or gender-affirming care that is legal in California, may bring a civil action against the bondsman or bond company within three years.

The crime of a bondsman taking a fugitive into custody without a California court order is reduced from a misdemeanor to an infraction, punishable by a fine of $5,000. (See P.C. § 1299.02 (Amended), below.)

Note: See also P.C. §1549.15 (New; SB 345), for definitions for “gender-affirming health care,” “gender-affirming mental health care;” “legally protected health care activity;” and “reproductive health care services.”

Pen. Code § 1299.02 (Amended; SB 345): Bail Bondsmen Arresting a Bail Fugitive From Another State for an Offense Related to Abortion, Contraception, or Gender-affirming Care; Punishment:

The new infraction crime, in subdivision (d), of a bail fugitive recovery agent apprehending or arresting a fugitive from another state who escaped bail for an offense related to abortion, contraception, or gender-affirming care that is legal in California, is added to P.C. § 1299.02.

Punishment: $5,000 fine and that the offender is not eligible for a bail license (Ins. Code § 1800) or a license as a private investigator (B&P §§ 7512–7573.5), or if already licensed, must forfeit the license.

A person taken into custody in violation of this new subdivision may bring a civil action against the bail fugitive recovery agent within three years.

Note: See also P.C. §1549.15 (New; SB 345), for definitions for “gender-affirming health care” and “gender-affirming mental health care;” “legally protected health care activity;” and “reproductive health care services.”

Pen. Code § 1334.2 (Amended; SB 345): Court Order to Witness to Another State’s Criminal Prosecution Relating to Abortion, Contraception, or Gender-Affirming Care:

New subdivision (j) is added prohibiting a judge from issuing an order directing a witness to appear in another state if the criminal prosecution in the other state is for an offense related to abortion, contraception, or gender-affirming care that is legal in California.

Notes:

This bill amends and creates a number of sections in various codes to prevent the enforcement or effect in California of other states’ laws on abortion, contraception, and “gender-affirming care.”

See also P.C. §1549.15 (New; SB 345), for definitions for “gender-affirming health care” and “gender-affirming mental health care;” “legally protected health care activity;” and “reproductive health care services.”

California Government Justice Commissions and Powers:

Gov’t. Code §§ 68655, 68656, 68657, 68658, & 68659 (New; SB 133; Effective June 30, 2023): The California Access to Justice Commission; Duties, Responsibilities, and Purposes:

New Chapter 2.2 is added to Title 8 of the Government Code entitled “California Access to Justice Commission.” This new Commission, other than making “big government” even bigger, is empowered to inform the Legislature of its position on any legislative proposal; to urge the introduction of legislative proposals; to state its position and viewpoint on issues developed in the performance of its duties; to inform the executive and judicial branches of its positions on regulations and rules and to submit amicus curiae briefs; to hold public hearings and issue reports; and to initiate projects to provide legal assistance. The Commission’s purposes are fourfold:

1. To provide leadership in efforts to achieve full and equal access to justice for all Californians, including indigent and moderate-means Californians, immigrants, children and families, seniors, persons with disabilities, persons in rural areas, veterans, and others currently unable to meet their legal needs;

2. To identify and promote improved methods of delivering legal help through coordinated efforts among the three branches of government, the public, attorneys, and others in the public and private sectors;

3. To administer grant programs and programs supporting the recruitment and retention of legal aid attorneys; and

4. To encourage increases in the resources available to achieve equal access to justice, including funding for legal help for people who cannot afford to pay, and donated time and effort by pro bono lawyers and others.

Commission members are to be appointed by the Governor, the Senate President pro Tempore, the Speaker of the Assembly, and the Judicial Council. These members are permitted to approve additional members at a meeting. There is to be a geographic balance of representation with the members broadly representing organizations and communities who participate in or are affected by the civil justice system in California.

Gov’t. Code § 83116.7 (New; SB 29; Effective October 10, 2023): Political Reform Education Program:

The Fair Political Practices Commission is authorized to establish and administer a “political reform education program” for specified persons who violate the Political Reform Act of 1974 (Gov’t. Code §§ 81000–91014). Any person who completes the program shall not be subject to criminal, civil, or administrative penalties for the violation, and the violation shall not be deemed a prior violation in any subsequent proceeding. If the person fails to complete the program, the Commission may pursue an administrative action.

Eligibility requirements for the education program:

1. The person has little or no experience with the section violated;

2. The underlying violation resulted in minimal or no public harm;

3. The person has not been ordered to pay a penalty for the same type of violation in the past five years; and

4. There is no evidence of intent to violate or to conceal a violation of, the Political Reform Act.

The Commission may impose additional eligibility requirements.

Child Abuse:

See “Victims of Crime,” below.

Controlled Substances:

Health & Safety Code § 11150.3 (New; AB 1021): Redesignation of Schedule 1 Controlled Substances under Federal Law and Its Effects on California Law:

When and if any Schedule I (H&S 11054) controlled substance is excluded or rescheduled by federal authorities from Schedule I of the federal Controlled Substances Act, or if the federal Food & Drug Administration permits a Schedule I substance to be prescribed, it will automatically be lawful for California physicians and pharmacists to prescribe these substances and it will be lawful in California for the substance to be furnished, dispensed, transported, possessed, or used in accordance with federal law.

This new section does not apply to cannabis (because almost identical language in existing H&S § 11150.2 already applies to cannabis.)

Note: Schedule I (H&S § 11054) controlled substances include a list of opiates, heroin, hallucinogens such as LSD, and cocaine base.

Health & Safety Code § 11356.6 (New; AB 890): Fentanyl and Synthetic Opiate Education Program:

This new section sets forth standards for the fentanyl and synthetic opiate education program that amended H&S § 11373 requires a court to order a defendant to successfully complete for a conviction of H&S §§ 11350, 11351, or 11352 involving any amount of fentanyl, carfentanil, benzimidazole opiate, or an analog thereof, when probation is granted. Requires that such a program include information on the following:

1. How the use of fentanyl and synthetic opiates affects the body and brain;

2. The dangers of fentanyl and other synthetic opiates to a person’s life and health;

3. Factors that contribute to physical dependence;

4. The physical and mental health risks associated with substance abuse;

5. How to recognize and respond to the signs of drug overdose; and

6. The legality of drug testing equipment.

The court may allow remote participation in a fentanyl program.

The program is required to report an unexcused absence within two business days to the court and to the probation department.

Note: See Health & Safety Code § 11373, below.

Health & Safety Code § 11373 (Amended; SB 46) and (Further Amended; AB 890): Controlled Substance Abuse Programs:

The drug treatment requirement for offenders convicted of a controlled substance offense is expanded to offenders sentenced to jail pursuant to P.C. § 1170(h) who have a period of mandatory supervision. Previously, this section applied only to defendants granted probation.

A controlled substance offender is now required to successfully complete an education or treatment program, rather than simply to “secure” a program.

The section continues to apply to all controlled substance offenses specified in H&S §§ 11000–11651. All references to minors are eliminated, including the provision that if a defendant is a minor, the court must order the parent or guardian to participate in the program.

The court is now required to determine a defendant’s ability to pay for a program and permits the court to develop a sliding fee schedule. The court and probation department is required to refer defendants only to a controlled substance education or treatment program that follows specified standards. The program must:

1. Be based on the best available current science;

2. Provide educational resources on the pathology of addiction and existing treatment modalities;

3. Have the goal of saving lives, reducing the risks associated with drug use, and reducing the recidivism that occurs from the use of controlled substances; and

4. Include education about how the use of controlled substances affects the body and brain, factors that contribute to physical dependence, how to recognize and respond to the signs of drug overdose, and the dangers of using controlled substances.

For defendants sentenced to state prison for a controlled substance offense, or sentenced to jail pursuant to P.C. § 1170(h) without a period of mandatory supervision, the court is required to recommend in writing that the defendant participate in a controlled substance education or treatment program while imprisoned that complies with the standards in H&S § 11373.

The county drug program administrator, with input from court representatives, the county probation department, and substance abuse treatment providers, is required to design and implement an approval and renewal process for controlled substance education and treatment programs.

AB 890 further amends this section to require that when a defendant is granted probation for a violation of H&S §§ 11350, 11351, or 11352 involving any amount of fentanyl, carfentanil, benzimidazole opiate, or an analog thereof, the court must order the successful completion of a fentanyl and synthetic opiate education program, if one is available. (Carfentanil and benzimidazole opiates are synthetic opiates.) No fee may be charged for this type of program.

“Opiate” includes opioid drugs.

AB 890 also creates new H&S § 11356.6 to specify standards for a fentanyl and synthetic opiate program.

See H&S § 11353.6, above.

Health & Safety Code § 11376.5 (Amended) and Health & Safety Code § 11376.6 (New; SB 250): Immunity for Person Possessing a Controlled Substance, Etc., for Delivery to a Public Health Department or Law Enforcement:

New H&S § 11376.6 provides that it is not a crime for a person to possess for personal use a controlled substance or drug paraphernalia if the person delivers the controlled substance to a local public health department or law enforcement “and notifies them of the likelihood that other batches of the controlled substance may have been adulterated with other substances, if known.” This section provides that the identity of the deliverer shall remain confidential.

The deliverer may, but shall not be required to, reveal the identity of the individual from whom the deliverer obtained the controlled substance.

The purpose of this new section is to encourage people to report contaminated drugs, such as when they discover the presence of fentanyl after using a fentanyl test strip on their drugs.

New H&S § 11376.6 is modeled after existing H&S § 11376.5, which is known as the Good Samaritan Law.

H&S § 11376.5 has been amended to add a definition of “seeks medical assistance.” “Seeks medical assistance” includes any communication made verbally, in writing, or in the form of data from a health-monitoring device, including, but not limited to, smart watches, for the purpose of obtaining medical assistance.

Health & Safety Code § 11455 (New; AB 33; Effective October 13, 2023; and SB 19): The Fentanyl Misuse and Overdose Prevention Task Force:

The Fentanyl Misuse and Overdose Prevention Task Force is established, provided there is an appropriation by the Legislature for doing so. Both bills are virtually identical, except that AB 33 was effective on October 13, 2023, as urgent legislation.

Both bills direct the task force to do a number of things, including collect and organize data on the nature and extent of fentanyl misuse; identify sources of legal and illicit fentanyl and xylazine activity in California; measure and evaluate the effectiveness of California’s education, prevention, and treatment efforts; evaluate approaches to increase public awareness about fentanyl misuse; and analyze existing statutes for their adequacy in addressing fentanyl misuse and if inadequate, recommend revisions to those statutes.

The task force will be co-chaired by the Attorney General and the State Public Health Officer or their designees. The bill sets forth a list of over 20 people who will be on the task force from areas such as government, education, health care, behavioral health, the Judicial Council, and law enforcement. This also includes one representative each from the California District Attorneys Association and the California Public Defenders Association.

The task force is required to meet at least once every two months. The first meeting is to be held no later than June 1, 2024. Subcommittees may to be formed and to meet as necessary.

The task force is required to submit an interim report to the Governor and Legislature by July 1, 2025, and to submit a final report with recommendations by December 1, 2025.

“Fentanyl misuse” is defined as the use of fentanyl or products containing fentanyl in a manner or with a frequency that negatively impacts one or more areas of physical, mental, or emotional health.

Note: According to the DEA’s website, “xylazine” is often known as “tranq” and is an adulterant in illicit drug mixtures. It is commonly encountered in combination with fentanyl. Xylazine is a non-opiate sedative, analgesic, and muscle relaxant only authorized in the United States for veterinary use. It is not currently a controlled substance under the federal Controlled Substances Act or under California’s Controlled Substances Act.

Health & Safety Code § 108930 (New, AB 1109): Sodium Nitrite; Sales to Minors:

New Chapter 10.5 in Part 3 of Division 104 of the Health & Safety Code, provides that beginning July 1, 2024, it is unlawful for a person, retailer, or online marketplace to sell sodium nitrite to a person under age 18. It is also unlawful to sell it in concentrations greater than 10% to a person age 18 or older. This new law does not apply to the sale of sodium nitrite to a business.

Specifies these defenses to the crime of selling to a minor:

1. The purchaser acknowledged being at least 18 years of age through an effective system that is capable of verifying the age of a purchaser, and the seller took all reasonable precautions and exercised all due diligence to ensure that the product would be sold and delivered to a person at least 18 years of age; or

2. The purchaser acknowledged being at least 18 years of age, and the seller complied with the requirements of the existing California Age-Appropriate Design Code Act (Civil Code 1798.99.28–1798.99.40).

Notes:

No criminal or civil liability is provided.

Uncodified Section One of this bill provides that it shall be known as “Tyler’s Law,” that sodium nitrite is fatal at high levels of purity, and that sodium nitrite is increasingly being used as a method of suicide. H&S § 108931 (AB 1210) requires warning labels for sodium nitrite and specifies civil penalties. See, below.

Per Google: Sodium Nitrite is an odorless, yellowish white, crystalline (sand-like) granule, rod or powder. It is used in heat transfer salts, metal treatment and finishing, as a color fixative and preservative for meats and fish, in pharmaceuticals, and as an antidote for Cyanide poisoning. It is also a powerful oxidizing agent that causes hypotension and limits oxygen transport and delivery in the body through the formation of methemoglobin. Clinical manifestations can include cyanosis, hypoxia, altered consciousness, dysrhythmias, and death.

Health & Safety Code § 108931 (New, AB 1210): Sodium Nitrite; Labeling:

New Chapter 10.6 in Part 3 of Division 104 of the Health & Safety Code prohibits a person or entity from selling or offering for sale sodium nitrite at a purity level that exceeds ten percent (10%) without warning labels on both the immediate container and the shipping package. The warning on the container must include “LETHAL TO INGEST” and “The recommended treatment for ingestion of sodium nitrite is intravenous methylene blue.”

The warning label on the shipping package is required to say “WARNING: Contains sodium nitrite, which can be fatal if ingested.”

A violation of this section is subject to a civil penalty of $10,000 for a first violation, and $50,000 to $100,000 for a second or subsequent violation.

A district attorney, city attorney, county counsel, or the Attorney General is authorized to bring a civil action to recover the civil penalty.

Notes:

Uncodified Section One of this bill provides the following:

1. Sodium nitrite is a food preservative that is fatal at high levels of purity and can be easily purchased online and in stores by children and teenagers; and

2. Poison control centers throughout the country have reported a 253-percent increase in self-poisoning with nitrites and a 166% increase in fatalities in 2021 as compared to 2018. According to the legislative history of this bill, sodium nitrite is growing in popularity among young people as a method for committing suicide.

See Marijuana (Cannabis), below.

Elder and Dependent Adult Abuse:

See “Victims of Crime,” below:

Elections laws:

Elections Code § 18560.1 (New; AB 1539): Multi-State Double Voting:

Multi-state double voting is a misdemeanor. This new section prohibits voting or attempting to vote in an election held in California while at the same time in another election held in another state unless one of the elections is an election in a landowner voting district or any other district for which an elector is not required to be a resident of the district.

Punishment: Up to six months in jail (P.C. § 19) and a fine of up to $1,000 (Elections Code § 18001).

Excited Delirium:

Evid. Code § 1156.5; H&S Code §§ 24400 through 24403 (New; AB 360): Excited Delirium in Civil Cases:

The term “excited delirium” (or anything similar; e.g.; excited delirium syndrome, hyperactive delirium, agitated delirium, and/or exhaustive mania) is eliminated from official recognition and use in any civil actions, and is eliminated as a valid medical diagnosis or cause of death in this state.

E.C. § 1156.5(c): “Excited Delirium” is defined as a term used to describe a person’s state of agitation, excitability, paranoia, extreme aggression, physical violence, and apparent immunity to pain that is not listed in the most current version of the Diagnostic and Statistical Manual of Mental Disorders, or for which the court finds there is insufficient scientific evidence or diagnostic criteria to be recognized as a medical condition.

H&S § 24402: “A peace officer shall not use the term excited delirium to describe an individual in an incident report completed by a peace officer. A peace officer may describe the characteristics of an individual’s conduct, but shall not generally describe the individual’s demeanor, conduct, or physical and mental condition at issue as excited delirium.”

H&S § 24403: “A party or witness (in a civil case) may describe the factual circumstances surrounding the case, including a person’s demeanor, conduct, and physical and mental condition at issue, including, but not limited to, a person’s state of agitation, excitability, paranoia, extreme aggression, physical violence, and apparent immunity to pain, but shall not describe or diagnose such demeanor, conduct, or condition by use of the term excited delirium, or attribute such demeanor, conduct, or physical and mental condition to that term.”

Note: The term “excited delirium” has been around for decades. Over the last 15 years, it has increasingly been used in attempts to provide an explanation for how a person experiencing severe agitation can die suddenly, suggesting in police use-of-force cases, for instance, that the death in issue was the result of something other than the force used by the police. For instance, it was used as a legal defense in the 2020 high-profile deaths of George Floyd in Minneapolis; Daniel Prude in Rochester, in New York; and Angelo Quinto, in Antioch, Calif., among others.

However, in reality, “excited delirium,” if a “condition” at all, is one that is not even recognized by the American Medical Association or the American Psychiatric Association. The National Association of Medical Examiners has specifically rejected excited delirium as a cause of death. The American College of Emergency Physicians has voted to formally disavow its 2009 position paper supporting excited delirium as a diagnosis.

Medical professionals are now beginning to recognize that “excited delirium” is, at best, a “symptom” of an underlying condition, and not a “condition” in itself. Such a “symptom” can be caused by any number of things; e.g., old age, hospitalization, a major surgery, substance use, medication, or infections. As noted by at least one medical professional (Sarah Slocum, a psychiatrist in Exeter, N.H., who co-authored a review of excited delirium published in 2022), it wouldn’t be any more appropriate to put “excited delirium” on one’s death certificate as the cause of death than it would be to list something more common, such as a “fever.” It’s what it was that caused the excited delirium that should be the issue, just as it would be in determining what it was that caused a fever that eventually led to someone’s death.

H&S Code §§ 24400, 24401, 24402, and 24403 (New; AB 360): Excited Delirium in All Cases:

In conjunction with the above Evidence Code provisions, AB 360 also created new Chapter 3.5 in Division 20 of the Health & Safety Code, which provides that excited delirium shall not be recognized as a valid medical diagnosis or cause of death in California.

Peace officers are prohibited from using the term “excited delirium” to describe a person in an incident report, but permits the officer to describe the characteristics of the person’s demeanor, conduct, or condition.

Also, a coroner, medical examiner, physician, or physician’s assistant is prohibited from stating in any report or death certificate that a cause of death was excited delirium.

A local or state government entity or employee is similarly prohibited from using excited delirium as a recognized medical diagnosis or cause of death in any official capacity or communication.

“Excited Delirium” is defined as a term used to describe a person’s state of agitation, excitability, paranoia, extreme aggression, physical violence, and apparent immunity to pain that is not listed in the most current version of the Diagnostic and Statistical Manual of Mental Disorders, or for which the court finds there is insufficient scientific evidence or diagnostic criteria to be recognized as a medical condition. Excited delirium also includes excited delirium syndrome, hyperactive delirium, agitated delirium, and exhaustive mania.

Note: The legislative history of this bill asserts that “excited delirium” is not recognized as a valid medical diagnosis or cause of death, and claims that it has racist origins and is only used to describe the death of people in police custody.

Firearms:

Important Note: Many of the following statutes are part of Senate Bill 2, or “SB 2.” At least temporarily, implementation of much of SB 2 was put on a temporary hold by a federal district court judge, ruling that this provision (or at least parts of it) violates the Second Amendment. (May v. Bonta; Case 8:23-cv-01696-CJC-ADS Document 45 Filed 12/20/23.) The issue is whether SB 2 complies with the U.S. Supreme Court ruling in New York State Rifle & Pistol Association, Inc. v. Bruen (2022) 597 U.S. __, 142 S.Ct. 2111, which struck down New York’s “proper cause requirement” requiring an applicant for a license to carry a firearm in public show some special need distinguishable from that of the general community. The Supreme Court in Bruen held that for a statute seeking to restrict one’s “Right to Bear Arms” to be constitutional under the Second Amendment, that statute must be consistent with the “historical background of the Second Amendment;” an issue that requires some case-by-case analysis. On December, 30, 2023 (Saturday), the Ninth Circuit put a hold on the May v. Bonta decision, allowing the enforcement of the S2 statutes. The validity of the S2 statutes—although enforceable—is pending in the appellate courts.

Financial Code §§ 110000, 110001, & 110002 (New; AB 1587): Firearms Merchant Category Code:

A payment card network (e.g., Visa, Mastercard, American Express) that routes transactions between banks and participants for credit, debit, or prepaid transactions, to make the merchant category code (MCC) for firearms merchants available to entities that process credit, debit, or prepaid transactions, is to be created by July 1, 2024.

By May 1, 2025, an entity (i.e., a “merchant acquirer”) that processes credit, debit, or prepaid transactions, is required to assign to a firearms merchant the “merchant category code” (MCC) for firearms and ammunition businesses.

A “Firearms Merchant” is defined as a business licensed in California as a firearms dealer or ammunition vendor for which the highest sales value is from the combined sale in California of firearms, firearm accessories, and ammunition.

A “merchant category code” is a four-digit number used to classify purchases according to the type of merchant where the purchase was made. Among other purposes, they are used to issue rewards based on a consumer’s spending categories. (For example, MCC 5411 is for “Grocery Stores, Supermarkets” and MCC 5941 is for “Sporting Goods Stores.”)

The Attorney General has exclusive authority to enforce this new division with written warnings and civil actions. A civil penalty of $10,000 for each violation is provided for.

Note: According to the legislative history of the bill, the goal is to assist financial institutions in flagging suspicious firearms and ammunition purchases.

Pen. Code § 171b (Amended; SB 2): Firearms in a State or Local Public Building, Including Courthouses:

The general exception to the crime of bringing a firearm (or other listed weapons) into, or possessing a firearm (or other listed weapons) within, “any state or local building or any or at any meeting required to be open to the public” for persons holding a concealed carry firearm license, is eliminated. This exception is now limited to (among other exceptions; see subd. (b)) persons holding a concealed carry firearm license who possess a firearm within a courthouse and who are a justice, judge, or court commissioner.

Pen. Code § 171d (Amended; SB 2): Firearms on the Grounds of the Governor’s Mansion, etc.:

This section is amended by expanding to all firearms, loaded or unloaded, the crime of bringing a loaded firearm into, or possessing a loaded firearm within, or bringing a loaded firearm upon the grounds of the Governor’s Mansion, any other residence of the Governor, the residence of any other constitutional officer, or the residence of any member of the Legislature. The exception for persons holding a concealed carry firearms license is eliminated.

Punishment: Up to six months in jail and/or by a fine of up to $1,000, or by imprisonment pursuant to P.C. § 1170(h).

Pen. Code § 171.7 (Amended; SB 2): An Undetectable Firearm in a Public Transit Facility:

An “undetectable firearm,” as described in existing P.C. § 17280, is added at subd. (b)(9) to the list of weapons and firearms that are prohibited in a public transit facility. This misdemeanor crime of possessing a specified weapon in the sterile area of a public transit facility is expanded by eliminating references to “sterile areas” and making it applicable to the entirety of a public transit facility.

Punishment: Up to six months in jail and/or by a fine of up to $1,000. (See subd. (d))

Pen. Code § 1001.36 (Amended; AB 1412) and (Further Amended; AB 455) (Effective July 1, 2024): Borderline Personality Disorder, Mental Disorder Diversion, and Firearms:

AB 1412 removes “borderline personality disorder” as an exclusion from mental disorder diversion, while retaining “antisocial personality disorder” and “pedophilia” as exclusions, along with a list of specified crimes for which mental disorder diversion is not permitted (i.e., murder; voluntary manslaughter; offenses requiring registration as a sex offender except P.C. § 314 indecent exposure; rape; lewd or lascivious act on a child under age 14; assault with intent to commit rape, sodomy, or oral copulation in violation of P.C. § 220; rape or sexual penetration in concert in violation of P.C. § 264.1; continuous sexual abuse of a child in violation of P.C. § 288.5; and weapons of mass destruction violations in P.C. § 11418(b) and (c)).

Note: The legislative history of AB 1412 claims that treatment for borderline personality disorder reduces the risk of suicide in this population and that this disorder is no more dangerous than mental illnesses covered by this diversion program.

AB 455, beginning July 1, 2024, adds a new subdivision (m) permitting the prosecution to request an order from the court that an offender who has been granted mental disorder diversion be prohibited from owning or possessing a firearm until successful completion of diversion, because the offender is a danger to him- or herself or others pursuant to W&I § 8103(i).

The prosecution is required to prove by “clear and convincing evidence” that the defendant poses a significant danger of causing personal injury to self or another person by having possession, custody, control, or ownership of a firearm and that the prohibition is necessary to prevent personal injury because less restrictive alternatives either have been tried and found to be ineffective or are inadequate or inappropriate for the circumstances of the defendant.

A firearms prohibition order shall be in effect until the defendant has successfully completed diversion or until firearm rights have been restored pursuant to existing W&I § 8103(g)(4).

AB 455 also amends W&I § 8103 to add a new subdivision (i) to provide that if a person is found by a court, on or after July 1, 2024, to be prohibited from owning or controlling a firearm because that person is a danger to self or others, and has been granted pretrial mental disorder diversion pursuant to P.C. § 1001.36, the person shall not own, possess, control, receive, or purchase, or attempt to own, possess, control, receive, or purchase, any firearm until the person successfully completes diversion or firearm rights are restored pursuant to W&I § 8103(g)(4). (See below)

Pen. Code § 11108.2 (Amended; SB 368): Firearms Required to be Entered into the DOJ Automated Firearms System:

New P.C. § 26892 and existing P.C. § 29830 are added to the list of firearms reported stolen, lost, found, recovered, surrendered, or held for safekeeping that law enforcement agencies, that are required to be entered into the DOJ Automated Firearms System.

P.C. § 26892 requires a licensed firearms dealer to accept a firearm for storage if the firearm is voluntarily and temporarily transferred to the dealer for safekeeping to prevent it from being accessed or used by the transferor or other persons who may gain access to it in the transferor’s household, causing significant danger of personal injury.

P.C. § 29830 permits a person who is prohibited from owning or possessing firearms or ammunition to transfer firearms and ammunition to a licensed firearms dealer or to transfer ammunition to a licensed ammunition vendor, for storage during the duration of the prohibition.

Pen. Code §§ 14131 (Amended) and 14132 (Repealed; AB 762): Grant Program to Reduce Gun Violence:

Several changes are made to the “California Violence Intervention and Prevention Grant Program.”

The sunset date of January 1, 2025, was removed, thereby making the grant program permanent.

The purpose of this grant program is changed from reducing homicides, shootings, and aggravated assaults to reducing “community gun violence.”

Counties that have one or more cities disproportionately impacted by community gun violence within their jurisdiction were added to the list of entities that may receive grants.

The maximum amount of a grant is increased from $1.5 million to $2.5 million and sets the length of the grant cycle at a minimum of three years.

“Community gun violence” is defined as “intentional acts of interpersonal violence involving a firearm, generally committed in public areas by individuals who are not intimately related to the victim, and which result in physical injury, emotional harm, or death.”

Pen. Code § 16520 (Amended; AB 725): Definition of Firearm:

Beginning July 1, 2026, the amended section expands the definition of a firearm to include the frame or receiver of a firearm, or a firearm precursor part, for purposes of P.C. §§ 25250–25275, which require that the loss or theft of a firearm be reported to local law enforcement within five days.

Notes:

Existing P.C. § 25265 continues to provide that a first or second violation of failing to report is an infraction, and a third or subsequent violation is a misdemeanor.

Amended P.C. § 16520 continues to list numerous statutes for which the definition of “firearm” includes frames, receivers, and precursor parts.

Pen. Code § 18155 (Amended; AB 301): Circumstances a Court to Consider In Issuing an Ex Parte Gun Restraining Order:

An additional circumstance a court may consider in deciding whether to issue an ex parte gun violence restraining order is expanded to include: “Evidence of acquisition of body armor.”

Note: This section continues to specify a number of circumstances a court is required to consider and a number of circumstances the court may consider, before issuing an ex parte gun violence restraining order.

Pen. Code § 23920 (Amended; AB 1621; 2022 Legislation): Firearms Without a State or Federal Serial Number or Mark of Identification:

New subdivision (b) adds the new misdemeanor crime of knowingly possessing any firearm that does not have a valid state or federal serial number or mark of identification.

Punishment: Up to six months in jail and/or a fine of up to $1,000. (P.C. § 19)

Note: Pen. Code § 23925(b) lists seven exceptions to P.C. § 23920, including in subpara (5): “The possession of a firearm by a person who, before January 1, 2024, has applied to the Department of Justice for a unique serial number or mark of identification, pursuant to Section 29180, and fully complies with the provisions of that section, including imprinting the serial number or mark of identification onto the firearm within 10 days after receiving the serial number or mark of identification from the department.”

Pen. Code § 25555 (Amended; SB 368): Carrying a Concealed Firearm:

Exempts new P.C. § 26892 (surrendering a firearm to a licensed firearms dealer for temporary safekeeping to prevent harm; see below) from laws against carrying a concealed firearm.

Pen. Code § 25610 (Amended; SB 2): Exceptions to the Crime of Carrying a Concealed Firearm:

The two specified exceptions to the crime of carrying a concealed firearm (P.C. § 25400) are limited to unloaded firearms only, and limits the exceptions to purposes specified in P.C. §§ 25510– 25595 (movie or TV productions; transportation to and from hunter safety classes, sporting events, target ranges, etc.).

The exceptions to P.C. § 25400 that are specified in P.C. § 25610 no longer apply to loaded firearms. Provides for these amended exceptions:

1. The firearm is unloaded, and in a motor vehicle, and is locked in the vehicle’s trunk or in a locked container in the vehicle; or

2. The firearm is unloaded, and is carried directly to or from a motor vehicle while in a locked container.

Pen. Code §§ 26150 & P.C. 26155 (Amended; SB 2): Concealed Carry Firearms License Requirements:

A number of changes were made to the requirements for the issuance of a concealed carry firearms license.

1. Provides that these requirements apply to a license renewal as well as a new license.

2. Instead of permitting a sheriff or police chief the discretion to issue a concealed carry firearm license, “may issue” is changed to “shall issue.”

3. Eliminates language that required the applicant to be of good moral character and that there be good cause for the issuance of the license. Instead, it is required that the applicant not be a person disqualified to receive such a license, as determined by new P.C. § 26202, and requires that the applicant be at least 21 years of age and present clear evidence of identity and age.

4. Continues to require proof of residency and adds that prima facie evidence of residency within a county or city includes, but is not limited to, the address where the applicant is registered to vote or where the applicant files a homeowner’s property tax exemption, or other acts or events that indicate presence in a county or city is more than temporary or transient.

5. Adds a requirement that the applicant is the “recorded owner” with DOJ, of the firearm for which the license will be issued.

6. Continues to require the completion of a training course as described in existing P.C. § 26165.

Pen. Code § 26162: (New; SB 2): Confirming that an Applicant for a Concealed Carry License is the Owner of the Firearm Reported in the License Application:

Before issuing a concealed carry firearms license, a licensing authority (e.g., a sheriff or chief or police) with direct access to the designated DOJ system is required to determine if the applicant is the recorded owner of the firearm reported in the license application. An agency without access to the system must confirm this information with the sheriff of the county in which the agency is located.

Pen. Code § 26165 (Amended; SB 2): Training Course for a Concealed Carry License:

The minimum length of the required training course for an applicant for a concealed carry firearms license is increased from 8 hours to 16 hours.

Added to the required topics for the course; safe storage of firearms, methods to transport firearms and secure them in vehicles, laws governing where licensees may carry firearms, laws regarding the permissible use of lethal force in self-defense, and at least one hour on mental health and mental health resources.

The minimum length of the training course for the renewal of a concealed carry firearms license is increased from four to eight hours.

Applicants are required to pass a written examination to demonstrate their understanding of the covered topics.

Pen. Code § 26170 (Amended; SB 2): Concealed Firearms License Requirements for Deputized and Appointed Reserve or Auxiliary Peace Officers:

Amendments to the section update the requirements for issuance of a concealed firearms license to a deputized or appointed reserve or auxiliary peace officer (P.C. § 830.6(a) and (b):

1. Provides that these requirements apply to a license renewal as well as a new license.

2. Instead of permitting a sheriff or police chief the discretion to issue a concealed carry firearm license, “may issue” is changed to “shall issue.”

3. Eliminates language that required the applicant to be of good moral character and that there be good cause for the issuance of the license. Requires instead that the applicant not be a person disqualified to receive such a license, as determined by new P.C. § 26202, and requires that the applicant be at least 21 years of age and present clear evidence of identity and age.

4. Adds a requirement that the applicant is the “recorded owner” with DOJ of the firearm for which the license will be issued, or, the applicant is authorized to carry a firearm that is registered to the agency for which the licensee has been deputized or appointed to serve as a peace officer.

Pen. Code §§ 26175, 26185, & 26190 (Amended; SB 2): Required Contents of a Concealed Firearms License Application and the Fees to be Charged:

A number of changes are made to what an application for a concealed carry firearms license must contain and the fees that may be charged.

Pen. Code § 26195 (Amended; SB 2): Grounds for Denying or Revoking a Concealed Carry Firearms License:

The grounds upon which a concealed carry firearms license may be denied or revoked is expanded to add breaching any conditions or restrictions specified in amended P.C. § 26200 (see below), supplying inaccurate or incomplete information in connection with a license application, or being a disqualified person as described in new P.C. § 26202 (see below).

Pen. Code § 26200 (Amended; SB 2): Prohibited Actions By a Person With a Concealed Carry Firearms License:

A person with a concealed carry firearms license is prohibited from carrying more than two firearms at one time. Also, 10 acts are listed that a licensee cannot do while carrying the firearm as authorized by the license:

1. Consume an alcoholic beverage, or a controlled substance described in H&S § 11053–11058.

2. Be in a place having the primary purpose of dispensing alcoholic beverages for onsite consumption.

3. Be under the influence of alcohol, medication, or a controlled substance.

4. Carry a firearm not listed on the license or a firearm for which the licensee is not the recorded owner.

5. Falsely represent to a person that the licensee is a peace officer.

6. Engage in an unjustified display of a deadly weapon.

7. Fail to carry the license on the person.

8. Impede a peace officer in the conduct of the officer’s activities.

9. Refuse to display the license or to provide the firearm to a peace officer upon demand for purposes of inspecting the firearm.

10. Violate any federal, state, or local criminal law.

Pen. Code § 26202 (Repealed & Added; SB 2): Background Check Prerequisite to Obtain a Concealed Firearms License:

This section, which dealt with the determination by a licensing authority about whether an applicant for a concealed carry firearms license had good cause for the license, is repealed while a wholly new P.C. § 26202 is created that lists a number of circumstances that disqualify an applicant from being issued a concealed carry firearms license, that requires an investigation to determine whether an applicant is a disqualified person, and that requires the licensing authority to provide written notice to an applicant within 90 days of its initial determination about disqualification.

The following are the disqualifying circumstances: I.e.: The applicant:

1. Is reasonably likely to be a danger to self or others, as demonstrated by anything in the application for a license, or through investigation required by new subdivision (b) (see below), or as shown by the results of the psychological assessment that may be required by the licensing authority pursuant to existing P.C. § 26190.

2. Has been convicted of contempt of court under P.C. § 166.

3. In the last five years has been subject to a restraining order issued pursuant to a specified code section (e.g., stalking, domestic violence, harassment).

4. In the last 10 years has been convicted of an offense listed in P.C. §§ 422.6, 422.7, or 422.75 (hate crimes), or 29805 (which lists a number of misdemeanor convictions that disqualify a person from having firearms for 10 years).

5. Has engaged in an unlawful or reckless use, display, or brandishing of a firearm.

6. In the last 10 years has been charged with any offense listed in P.C. §§ 290 (sex crimes), 667.5 (violent felonies), 1192.7 or 1192.8 (serious felonies), or 29805 that was “dismissed pursuant to a plea” or dismissed with a waiver pursuant to People v. Harvey (1979) 25 Cal.3rd 754 (a waiver by which the defendant agrees the court may consider a dismissed charge or charges when sentencing the defendant).

7. In the last five years has been committed to or incarcerated in county jail or state prison for, or has been on probation, parole, postrelease community supervision, or mandatory supervision for, a conviction involving alcohol, or a controlled substance as described in H&S §§ 11053–11058.

8. Is currently abusing alcohol, or controlled substances as described in H&S §§ 11053 through 11058.

9. In the last 10 years has experienced the loss or theft of multiple firearms due to the applicant’s lack of compliance with laws regarding storing, transporting, or securing a firearm.

10. Failed to report the loss of a firearm as required by P.C. § 25250 or by any other state, federal, or local law requiring the reporting of the loss of a firearm.

Note: P.C. § 25250 requires the loss or theft of a firearm to be reported to local law enforcement within five days.

Licensing Authority Is Required to Conduct an Investigation:

Subdivision (b) requires a licensing authority (e.g., a sheriff or police chief) to conduct an investigation to determine whether an applicant is a disqualified person. The investigation is required to meet these minimum requirements:

1. An in-person interview with the applicant.

2. An in-person, virtual, or telephonic interview with at least three character references, at least one of whom must be a person described in P.C. § 273.5(b) (e.g., spouse, former spouse, cohabitant, former cohabitant, fiancé, fiancée, person with whom the applicant has or previously had a dating or engagement relationship, or the mother or father of the applicant’s child).

3. A review of publicly available information about the applicant, including publicly available statements published or posted by the applicant.

4. A review of all information provided in the application.

5. A review of all information provided by DOJ pursuant to P.C. § 26185 (criminal history information and whether the applicant is prohibited from having firearms).

6. A review of the information in the California Restraining and Protective Order System accessible through CLETS (California Law Enforcement Telecommunications System).

Notification to the Applicant: The licensing authority is required to notify the applicant within 90 days, of its initial determination about whether the applicant is a disqualified person. If the initial determination is disqualification, the applicant must be informed that a court hearing may be requested pursuant to new P.C. § 26206. (See P.C. § 26206, below, for more information.)

Pen. Code § 26205 (Amended; SB 2): Notification to Applicant for a Concealed Carry Firearms License:

The time frame for notifying an applicant for a concealed carry firearms license that the license is approved or denied has been expanded, as follows: Within 120 days of receiving the completed application, or within 30 days of receiving information from DOJ about whether the applicant is prohibited from having firearms, whichever is later.

Note: Previously, notification was required within 90 days of the initial application or within 30 days of receiving information from DOJ, whichever was later.

Pen. Code § 26206 (New; SB 2): Legal Requirements for Denying or Revoking a Concealed Firearms License; the Court Evidentiary Hearing:

This new section provides that if a concealed carry firearms license is denied or revoked, the licensing authority must notify the applicant about the reason and inform the applicant that a court hearing may be requested.

The bill provides that the “people of the State of California shall be the plaintiff in the proceeding and shall be represented by the district attorney.” It also notes that the district attorney has the burden of showing by a “preponderance of the evidence” that the applicant is a disqualified person.

The Department of Justice (DOJ) is required to develop a “Request for Hearing to Challenge Disqualified Person Determination.”

A hearing must be requested within 30 days of receiving a notice of denial, and requires the hearing to take place in the applicant’s county of residence.

A licensing authority is permitted to require an applicant to use and exhaust any process for appealing a denial or revocation that may be offered by the licensing authority.

When a court hearing is requested, the court is required to notify the applicant, the licensing authority, DOJ, and the district attorney.

The district attorney is required to represent the people of the State of California at the hearing. However, it appears that the district attorney has the option of declining or failing to go forward with the hearing.

Subdivision (f) provides that if the district attorney “declines or fails to go forward in the hearing,” or does not meet the burden to show disqualification, the court must order that the applicant is not disqualified and order the licensing authority to proceed with licensing process. Or, if the license had been revoked, the court must order the license reinstated.

The DOJ is required to file a criminal history report and the licensing authority to file any records or reports it relied on in denying or revoking the license. Provides that these reports must be disclosed to the applicant and to the district attorney, upon request.

The court is permitted to conduct the hearing in camera, at the request of the applicant, if the applicant establishes that confidential information is likely to be discussed during the hearing that would cause harm to the applicant.

Declarations, police reports, criminal history information, and any material and relevant evidence that is not excluded under Evidence Code § 352 is admissible at the hearing.

The district attorney has the burden of showing by a preponderance of the evidence that the applicant is disqualified from having a concealed carry firearms license. If this burden is met, the court must inform the applicant that a subsequent application may be filed no earlier than two years from the date of the hearing.

If an applicant has been denied a license or has a license revoked based on any disqualification ground specified in P.C. § 26202 two or more times in a 10-year period, which was either not challenged by the applicant or was upheld at a hearing, at any subsequent hearing the applicant has the burden of showing by a preponderance of the evidence that the applicant is not a disqualified person.

Pen. Code § (Amended; SB 2): Emergency Regulations Adopted by the Attorney General for Concealed Firearms Licenses:

The Attorney General is authorized to adopt emergency regulations to implement the new and amended provisions for concealed carry firearms licenses. Such regulations are exempt from review by the Office of Administrative Law. Such emergency regulations may remain in effect for no more than two years.

Pen. Code § 26230 (New; SB 2): Places Where a Person Who Has a Concealed Carry Firearms License is Prohibited From Carrying a Firearm:

Twenty-nine categories of places where a person who has a concealed carry firearms license is prohibited from carrying a firearm as listed in this section.

This extensive list of prohibited places includes the following:

Schools and colleges, preschools and childcare facilities, government buildings, courthouses (unless the person is a justice, judge, or court commissioner), prisons, jails, and detention facilities, hospitals, nursing homes, and medical offices, establishments where intoxicating liquor is sold for consumption on the premises (e.g., a bar), playgrounds and youth centers, parks and athletic facilities, casinos, gambling establishments, and bingo operations, stadiums and arenas, public libraries, airports, amusement parks, zoos, museums, financial institutions, polling places and voting centers, places or areas prohibited by local law, state law, or federal law, churches, synagogues, mosques, or places of worship, unless the place of worship posts a sign stating that license holders are permitted to carry firearms, privately owned commercial establishments that are open to the public (presumably grocery and retail stores, etc.), unless a sign is posted stating that license holders are permitted to carry firearms.

Note: SB 2 also amends P.C. § 171.5 (weapons at airports) and P.C. § 626.9 (firearms at schools) to cross-reference this new section.

Pen. Code §§ 26379, 26405, & 26577 (Amended: SB 368): Exemption for Surrendering a Firearm to a Licensed Dealer:

New P.C. § 26892 (surrendering a firearm to a licensed firearms dealer for temporary safekeeping to prevent harm; see below) is specifically exempted from laws against openly carrying an unloaded handgun (P.C. § 26379), carrying an unloaded firearm that is not a handgun (P.C. § 26405), and transferring a firearm (P.C. § 26577).

Pen. Code §§ 26720, 26725, & 26800 (Amended; AB 1420): Compliance Inspections of Firearms Dealers:

The existing authority of DOJ is expanded to conduct compliance inspections of firearms dealers at least every three years (P.C. § 26720) and to assess civil fines for violations (P.C. § 26800), to all laws in Title 4 of Part 6 of the Penal Code (P.C. §§ 23500–34370); to any regulations promulgated pursuant to Title 4; to B&P §§ 21628.2, 21636, and 21640 (relating to secondhand dealers); and to any other applicable state law.

Note: Previously, DOJ’s inspection authority was limited to ensuring compliance with P.C. § 16575, which specifies a number of Penal Code sections relating to firearms. Also, DOJ’s authority to assess civil fines was limited to a violation of P.C. §§ 26800–26915 (grounds for forfeiture of a firearms dealer license). Now DOJ may conduct inspections to ensure compliance with all of the provisions and regulations specified above and may assess civil fines for any breach.

P.C. § 26725 is amended to add a violation of any applicable state law by a firearms dealer to the list of information (e.g., number of inspections conducted, number of dealers removed from the centralized list, number of dealers found to have violated a provision in P.C. § 16575) that DOJ is required to maintain and to make available upon request.

Note also that beginning January 1, 2024, DOJ is required, instead of authorized, to conduct inspections of firearms dealers at least once every three years. AB 228 amended P.C. § 26720 in 2022 to require, instead of permit, inspections. It had a delayed operative date of January 1, 2024.]

Pen. Code § 26835 (Amended; AB 1621; 2022 Legislation, and Further Amended; SB 417): One Firearm Purchase Warning, and Suicide Prevention Warning:

AB 1621 (2022 Legislation): This bill changed the wording of the warning firearm dealers are required to display within their premises. Instead of stating that only one handgun or semiautomatic centerfire rifle may be purchased within a 30-day period, the warning must state that only one firearm may be purchased within a 30-day period, conforming the required warning to the amendment made by AB 1621 to P.C. § 27535.

Beginning January 1, 2024, P.C. § 27535 prohibits making an application to purchase more than one firearm within a 30-day period, instead of prohibiting making an application to purchase more than one handgun or semiautomatic centerfire rifle within a 30-day period.

SB 417 (2023 Legislation) expands the suicide prevention warning that firearm dealers are required to post to add a warning that access to a firearm in the home significantly increases the risk of suicide, death, and injury during domestic violence disputes, and unintentional death and traumatic injury to children, household members, and guests. The suicide hotline number is changed to “988”, which is the suicide and crisis lifeline. The suicide warning is required be posted on the counter of one of the main gun displays, or within five feet of the cash register. The warning may not be placed on the floor or on the ceiling of the premises.

Pen. Code § 26866 (New; AB 1598) (Effective January 1, 2025): Required Pamphlet for a Purchaser or Transferee of a Firearm:

Beginning January 1, 2025, a firearms dealer is required to provide the purchaser or transferee of a firearm with a copy of the most current version of a pamphlet that new P.C. § 34210 requires DOJ to create in several languages.

Note: P.C. § 4210 requires that the pamphlet explain the “reasons for and risks of owning a firearm and bringing a firearm into a home, including the increased risk of death to someone in the household by suicide, homicide or unintentional injury.”

Pen. Code § 26892 (New; SB 368): Firearms Transferred to a Dealer for Safekeeping:

A licensed firearms dealer is required to accept a firearm for storage if the firearm is voluntarily and temporarily transferred to the dealer for safekeeping to prevent it from being accessed or used by the transferor or other persons who may gain access to it in the transferor’s household, causing significant danger of personal injury.

The dealer is required to notify DOJ within 48 hours of taking possession of a firearm pursuant to this new section.

The duration of the loan to that amount of time reasonably necessary to prevent harm. A licensed firearms dealer is permitted to accept a firearm for storage from an individual for any lawful purpose.

This new section further provides that it applies only to a firearms dealer who operates a retail premises open to the general public. A dealer who sells only handguns is not required to accept any long guns for storage, and any dealer who sells only long guns is not required to accept any handguns for storage. Limits to 20 the number of firearms a dealer is required to store per calendar year.

Notes:

The purpose of this bill is to provide persons who are suicidal or who are living with persons who are suicidal, with a process for removing firearms from their homes.

Existing P.C. § 29830 continues to permit a person who is prohibited from owning or possessing firearms or ammunition to transfer firearms and ammunition to a licensed firearms dealer or transfer ammunition to a licensed ammunition vendor, for storage during the duration of the prohibition. This section forth procedures for situations in which a dealer cannot legally return the firearm to the transferor. It also permits the transferor to designate a person to take possession of the firearm. If there is no such person, however, the dealer must deliver the firearm to the sheriff or the chief of police in the county or city where the dealer is located. P.C. § 29830 also permits dealers to charge a reasonable fee for storage.

Pen. Code § 26894 (New; SB 368): Firearms Raffles:

A licensed firearms dealer is prohibited from offering an opportunity to win “an item of inventory” (presumably referring to firearms, ammunition, etc.) in “a game dominated by chance” (e.g., a raffle).

Exempted from this prohibition is a nonprofit public benefit corporation or a mutual benefit corporation that obtains a firearm dealer’s license solely to assist the corporation in conducting auctions, raffles, or similar events at which firearms are auctioned or raffled off to fund the activities of the corporation.

Pen. Code § 26920 (New; SB 241): Annual Training Course and Certification for Firearms Dealers and Their Employees:

DOJ is required to create a training course and certification that firearm dealers and their employees must complete annually. DOJ is to develop the course by February 1, 2026. Beginning July 1, 2026, it is required that every firearm dealer, and every employee who handles or processes the sale, loan, or transfer of firearms or ammunition, annually complete the training and certification.

This training must cover a number of topics including: Federal and state laws governing sales and transfers of firearms and ammunition; how to recognize straw purchasers and fraudulent activity; how to recognize indicators that an individual intends to use a firearm for unlawful purposes or self-harm; how to prevent the theft or burglary of firearms and ammunition; how to teach consumers the rules of firearm safety; and how to accurately complete state and federal forms.

A test covering the above topics must be at least 20 questions with a passing score of 70%.

DOJ must also prepare supplemental written materials that must be made available to all course participants, with those materials to include the following:

1. An outline of indicators that a prospective firearm transferee may be involved in gun trafficking or straw purchasing: the customer is accompanied by one or more persons; the customer is communicating with others by phone or other means; the customer is buying multiple firearms; the customer has been the subject of a crime gun trace; the customer has purchased a firearm in the preceding 30 days; and the customer indicates that a firearm is being obtained for another person.

2. How to ascertain whether a prospective firearm purchaser is lawfully purchasing a firearm, including by asking questions of the purchaser.

3. How to report a suspected fraudulent firearm purchaser to the federal Bureau of Alcohol, Tobacco, Firearms and Explosives, and to DOJ.

Pen. Code §§ 27531, 27532, 27533, 27534, 27534.1, & 27534.2 (New; SB 452): Microstamping Requirements and Firearms:

These new sections require, beginning on January 1, 2028, that semiautomatic pistols sold in California use microstamping technology, but only if DOJ has determined that microstamping components and/or microstamping-enabled semi-automatic firearms are available.

P.C. § 27533: A first violation for the unlawful sale of a non-microstamping-enabled pistol is an infraction punishable by a fine of up to $1,000. A second violation is an infraction punishable by a fine of up to $5,000 and may result in the revocation of the firearm dealer’s license. A third violation is a misdemeanor and license revocation is required.

Note: Because no punishment is specified for this misdemeanor crime upon a third violation, P.C. § 19 provides a punishment of up to six months in jail and/or a fine of up to $1,000.

Exceptions to the above as listed, such as a pistol manufactured or delivered to a firearms dealer before January 1, 2028, or a transaction conducted through a licensed firearms dealer.

P.C. § 27534: The new misdemeanor crime of modifying a microstamping-enabled pistol or microstamping component with the intent to prevent the production of a microstamp.

A first violation is punishable by up to six months in jail and/or by a fine of up to $1,000. A second or subsequent offense is punishable by up to one year in jail and/or by a fine of up to $2,000.

P.C. § 27534.1: It is unlawful to knowingly or recklessly provide a false or misleading certification that a firearm is microstamping-enabled and authorizes a court to award civil penalties of $10,000 for each firearm in violation and/or injunctive relief sufficient to prevent further violations.

P.C. § 27532: Deadlines for DOJ to make the determination of whether microstamping components and/or microstamping-enabled semi-automatic firearms are available are as follows:

1. By March 1, 2025, DOJ must engage in an investigation to determine the technological viability of microstamping components producing microstamps on spent cartridge casings discharged by a firearm.

2. If DOJ determines that microstamping components are technologically viable, it must, by September 1, 2025, provide written guidance on performance standards for persons and entities engaged in the business of producing microstamping components.

3. By January 1, 2026, DOJ must begin accepting applications for a license to engage in the business of producing microstamping components that meet performance standards.

4. By July 1, 2026, DOJ must provide grants or enter into contracts with one or more entities to produce microstamping components that meet performance standards and to make those components available for sale at a reasonable cost to firearm manufacturers, firearm dealers, and gunsmiths engaged in the business of installing microstamping components.

5. By July 1, 2027, DOJ must determine if microstamping components at commercially reasonable prices are available from licensees and/or if microstamping-enabled firearms are readily available for purchase in California.

P.C. § 27531: Definitions:

“Microstamp” is defined as a microscopic array of characters that may be used to identify the specific serial number of a firearm from spent cartridge casings discharged by that firearm.

“Microstamping component” is defined as a firing pin or other component part of a semiautomatic pistol that, when installed, produces a microstamp on at least one location of the expended cartridge case each time the pistol is fired.

Pen. Code § 27535 (Amended; AB 1621; 2022 Legislation, and Further Amended; AB 1483; Effective January 1, 2025): Purchasing More Than One Firearm within a 30-day period:

AB 1621 (2022 Legislation): Beginning January 1, 2024, AB 1621 expands this infraction/ misdemeanor crime of making an application to purchase more than one handgun or semiautomatic centerfire rifle within a 30-day period, to prohibit making an application to purchase more than one firearm within a 30-day period. Also added to this section is that it does not authorize a person to make an application to purchase a combination of firearms, completed firearm frames, completed firearm receivers, or firearm precursor parts within the same 30-day period.

Note: P.C. § 16520 was also amended by this bill in 2022 to expand the definition of “firearm” to provide that it includes the frame or receiver of a firearm, a completed firearm frame, a completed firearm receiver, or a firearm precursor part.

AB 1483 (2023 Legislation): Beginning January 1, 2025, AB 1483 eliminates the following exception to the prohibition on applying to purchase more than one firearm within a 30-day period: A firearm transaction between two private individuals conducted through a licensed firearms dealer. This bill also adds these exceptions: I.e.; a private-party transaction is where the seller is

1. Required under state law or by court order to relinquish firearms; or

2. The personal representative of a decedent’s estate or the holder of a decedent’s property or the trustee of a decedent’s trust, and is transferring firearms to the decedent’s heirs, successor, surviving spouse, or beneficiaries.

Pursuant to existing subd. (e) of P.C. § 27590, a first violation of P.C. § 27535 is an infraction punishable by a fine of $50, a second violation is an infraction punishable by a fine of $100, and a third or subsequent violation is a misdemeanor punishable (pursuant to P.C. § 19) by up to six months in jail and/or a fine of up to $1,000.

Pen. Code § 28160 (Amended; AB 1420; and AB 574; Effective March 1, 2025): A Dealer’s Record of Sale:

The information from a purchaser that a firearm “Dealer’s Record of Sale” (DROS) must include is expanded include to add these:

1. For firearms transactions on and after September 1, 2025, the purchaser’s email address (AB 1420; Effective 1/1/24).

2. Beginning March 1, 2025, a purchaser must answer a yes or no question about whether the purchaser has, within the past 30 days, “checked and confirmed possession of all firearms currently owned or possessed” (AB 574).

Note: The concern here is about lost or stolen firearms. According to the legislative history of the bill, proponents want gun purchasers “to proactively affirm that they have had all of their firearms in their possession within the past 30 days.”

Pen. Code § 28220 (Amended; AB 1406): Delayed Delivery of a Firearm by a Firearms Dealer:

The authority of DOJ is expanded to delay the delivery of a firearm and adds requirements when a firearm is discovered to be stolen.

The DOJ is authorized to notify a firearms dealer to delay the delivery of a firearm if a purchaser’s eligibility to have a firearm cannot be ascertained without further research into the purchaser’s criminal convictions or mental health confinements, or without obtaining additional records.

DOJ is also authorized to notify a firearms dealer to delay the transfer of a firearm for up to 30 days after the dealer’s original submission of purchaser information to DOJ if there is a state of emergency pursuant to existing Gov’t. Code § 8558 that has caused DOJ to be unable to obtain and review records in order to determine a purchaser’s firearms eligibility.

A new subdivision (d) has been added to require DOJ to do all of the following when a firearm is discovered to be stolen:

1. Reject the purchase of the firearm.

2. Notify the firearms dealer that the firearm is stolen and that the dealer must retain the firearm until a law enforcement agency is able to retrieve it.

3. Notify the law enforcement agency that made the stolen firearm entry in the registry described in existing P.C. § 11106, that the firearm has been located.

The reporting agency is required to retrieve the firearm from the dealer and report the firearm’s recovery as provided by existing law.

Pen. Code § 29010 (Amended; AB 1089): A Three-Dimensional Printer to Manufacture a Firearm:

The prohibition against using a three-dimensional printer to manufacture a firearm, a firearm frame or receiver, or a firearm precursor part, is removed from this section and added to P.C. § 29185 (see below).

P.C. § 29010 continues to prohibit a person from manufacturing more than three firearms in a calendar year unless the person has a California state license to manufacture firearms. A violation of this section remains a misdemeanor crime.

Pen. Code § 29185 (Amended; AB 1089): Computer Numerical Control” (CNC) Milling Machines and the Manufacturer of Firearms:

The misdemeanor crimes relating to “computer numerical control” (CNC) milling machines and the manufacturer of firearms, is expanded to include three-dimensional printers.

This section applies to the crimes of using a CNC milling machine or a three-dimensional printer to manufacture a firearm, i.e.:

Unlawfully selling or transferring a CNC milling machine or three-dimensional printer that has the sole or primary function of manufacturing firearms to a person in California who is not a state-licensed firearms manufacturer; and

Possessing, purchasing, or receiving a CNC milling machine or three-dimensional printer that has the sole or primary function of manufacturing firearms.

The exception for these crimes has been changed from a federally licensed firearms manufacturer or an importer to a state-licensed firearms manufacturer.

Notes:

A federal firearms manufacturing license is a prerequisite for a state license, pursuant to existing P.C. § 29050.

Relinquishment provisions for three-dimensional printers have been added that are almost identical to those for CNC milling machines.

The section now provides that a person who is in possession before July 1, 2024, of a three-dimensional printer that has the sole or primary function of manufacturing firearms, is exempt from the crimes of selling, transferring, or possessing a printer, if within 90 days of July 1, 2024, the person does one of the following:

1. Sells or transfers the printer to a state-licensed firearms manufacturer;

2. Sells or transfers the printer to a person engaged in the business of selling firearms manufacturing equipment to a state-licensed firearms manufacturer;

3. Removes the printer from California;

4. Relinquishes the printer to a law enforcement agency; or

5. Otherwise lawfully terminates possession of the printer.

“Three-dimensional printer” is defined as a computer-aided manufacturing device capable of producing a three-dimensional object from a three-dimensional digital model through an additive manufacturing process that involves the layering of two-dimensional cross sections formed of a resin or similar material that are fused together to form a three-dimensional object.

Note: This bill also creates new Civil Code §§ 3273.60–3273.62 to authorize a city attorney, county counsel, or the Attorney General to bring a civil action for specified acts regarding digital firearm manufacturing codes, computer numerical control (CNC) milling machines, and three-dimensional printers.

Pen. Code § 29305 (New; AB 97): Arrests for Offenses Related to Firearms Without a Valid State or Federal Serial Uumber:

DOJ is required to collect and report data on arrests for offenses related to firearms without a valid state or federal serial number (commonly referred to as “ghost guns”).

DOJ is required to collect and report data on the number of arrests for P.C. §§ 23920 and 29180 and the dispositions of these arrests, including whether charges were filed, dismissals after charging, acquittals, and convictions. Beginning July 1, 2025, DOJ is required to issue an annual report about this data.

Note: P.C. § 23920 is the misdemeanor crime of possessing, buying, receiving, or selling a firearm that has had the name of the maker or model, or a manufacturer’s number or other mark of identification, altered or removed. P.C. § 29180 is the misdemeanor crime of manufacturing, assembling, possessing, or bringing into California, a firearm without a valid serial number or identification mark, and failing to apply to DOJ for a serial number or mark.

A sunset date of January 1, 2033, applies this new section.

Pen. Code § 29805 (Amended; SB 2 and SB 368): Possession of a Firearm by Persons with Specified Misdemeanors:

Pursuant to SB 2, new subdivision (f) was added to P.C. § 29805, prohibiting a person with specified misdemeanor convictions from owning, possessing, or controlling a firearm within 10 years of the conviction. Specifically, subd. (f) provides as follows:

Any person who is convicted on or after January 1, 2024, of a misdemeanor violation of paragraph (5), (6), or (7) of subdivision (c) of Section 25400, paragraph (5), (6), or (7) of subdivision (c) of Section 25850, subdivision (a) of Section 26350, or subdivision (a) of Section 26400, and who, within 10 years of the conviction owns, purchases, receives, or has in possession or under custody or control, any firearm is guilty of a public offense, punishable by imprisonment in a county jail not exceeding one year or in the state prison, by a fine not exceeding one thousand dollars ($1,000), or by both that fine and imprisonment.

Note:

P.C. § 25400: Carrying a concealed firearm.

P.C. § 25850: Carrying a loaded firearm.

P.C. § 26350(a): Openly carrying an unloaded handgun.

P.C. § 25400(a): Carrying an unloaded firearm that is not a handgun.

Pursuant to SB 368, new subdivision (c) is added providing that any person with specified misdemeanor convictions, with specified exceptions, from owning, possessing, or controlling a firearm within 10 years of the conviction. Specifically, subd. (c) provides as follows:

Except as provided in Section 29855 or subdivision (a) of Section 29800, any person who is convicted on or after January 1, 2024, of a misdemeanor violation of this section, and who, within 10 years of the conviction owns, purchases, receives, or has in possession or under custody or control, any firearm is guilty of a public offense, punishable by imprisonment in a county jail not exceeding one year or in the state prison, by a fine not exceeding one thousand dollars ($1,000), or by both that fine and imprisonment.

Note:

P.C. § 29855: Persons employed as a peace officer who have petitioned the court for relief.

P.C. § 29800(a): Persons convicted of a felony.

Former subd. (c) has been moved to subd. (f).

Pen. Code § 29810 (Amended; AB 732): Prohibitions on the Possession, Ownership, or Control of Firearms; Relinquishment Requirements:

A number of changes to the process for relinquishing firearms when an offender is convicted of a crime are made that prohibit firearm possession, ownership, or control. Persons prohibited from having firearms pursuant to P.C. § 29815 (an express condition of probation prohibiting firearms) is added to those who must relinquish firearms. P.C. § 29810 continues to also apply to offenders prohibited from having firearms pursuant to P.C. § 29800 (felony convictions) or P.C. § 29805 (specified misdemeanor convictions).

The relinquishment of a firearm must occur within 48 hours of conviction (was previously within five days of conviction) if the defendant is out of custody, retaining the same timeframe of 14 days of conviction for in-custody defendants to relinquish firearms.

The prosecuting attorney is added to the list of entities (the court) to which the probation officer must report before final disposition or sentencing as to whether the defendant has relinquished all firearms identified by the probation officer’s investigation or declared by the defendant on the Prohibited Persons Relinquishment Form. If the report of the probation officer does not confirm firearm relinquishment, the court shall take one of the following actions:

1. If the court finds probable cause after a search warrant request has been submitted pursuant to P.C. § 1524, that the defendant has failed to relinquish firearms, the court must order a search and removal of firearms at any location where there is probable cause to believe the defendant’s firearms are located. The court is required to set a court date to confirm relinquishment of all firearms. The search warrant is to be executed within 10 days pursuant to existing P.C. § 1534(a).

Note: Previously, the court had the authority to order a search and removal of firearms, based on probable cause, without a search warrant.

2. If the court finds good cause to extend the time for providing proof of relinquishment, the court must set a court date within 14 days for the defendant to provide proof of relinquishment.

3. If the court finds additional investigation is needed, the court must refer the matter to the prosecuting attorney and set a court date within 14 days for status review.

Pen. Code § 29813 (New; AB 732): Armed Prohibited Persons System; Verification that Required Persons Have Relinquished All Firearms Registered in Their Name:

DOJ is required to provide local law enforcement agencies and district attorneys access through an electronic portal to information about individuals residing in their jurisdiction who are listed in the Armed Prohibited Persons System and who have not provided proof of the relinquishment of firearms registered in their name.

Each local law enforcement agency is required to designate a person to access or receive this information, and to report to DOJ on a quarterly basis the steps that were taken to verify that individuals on the list are no longer in possession of firearms.

Note: This bill also amends P.C. § 29810, making a number of changes to the process for relinquishing firearms upon conviction of an offense that prohibits firearm possession, ownership, or control. Uncodified Section One of this bill states that it is the intent of the Legislature that every person convicted of an offense that prohibits firearm ownership relinquish all firearms at the time of conviction and that prosecuting attorneys and courts ensure relinquishment before the final disposition of a criminal case.

Pen. Code § 30010 (Amended; AB 303): The Prohibited Armed Persons File:

New subdivision (b) is added to require the Attorney General to provide local law enforcement agencies all of the following information relating to persons listed in the Prohibited Armed Persons File in their jurisdiction:

1. Personal identifying information.

2. Case status.

3. Prohibition type or reason.

4. Prohibition expiration date.

5. Known firearms associated to the prohibited person.

6. Information regarding previous contacts with the prohibited person, if applicable.

Note: This section continues to require the Attorney General to provide investigative assistance to local law enforcement agencies to better ensure the investigation of persons who “are armed and prohibited from possessing a firearm.” This bill is intended to improve the communication between DOJ and local officials.

Pen. Code § 30012 (Amended; AB 134; Effective July 10, 2023): DOJ’s Annual Report to on the Armed Prohibited Persons System:

The due date of DOJ’s annual report to the Legislature on the Armed Prohibited Persons System is changed from April 1 to March 15.

Pen. Code § 30370 (Amended; SB 135; Effective September 13, 2023, and SB 2): Transfer of the Per Transaction Fee:

The Attorney General is authorized to adjust the $1 per transaction fee that ammunition purchasers and transferees are charged to cover the cost of DOJ’s regulatory and enforcement activities related to ammunition purchase authorizations. The AG is permitted to adjust the fee “as needed,” but prohibits the fee from exceeding the reasonable regulatory and enforcement costs for operating the program.

Pen. Code § 30400 (Amended; SB 883): Purchasing, Selling, Offering to Sell, or Transferring Ownership of a Firearm Precursor Part; Misdemeanor Punishment:

A specific punishment that mistakenly left off when first enacted in AB 1621 in 2022, is added to the crime of purchasing, selling, offering to sell, or transferring ownership of a firearm precursor part that is not a federally regulated firearm precursor part. The crime is now listed as a misdemeanor that is punishable by up to six months in jail and/or by a fine of up to $1,000.

Pen. Code § 30631 (New; AB 355): Exceptions to the Assault Weapons Crimes for Peace Officer Trainees:

An exception is created for the assault weapon crimes in P.C. § 30600 (unlawfully manufacturing, transporting, importing, offering for sale, or giving away an assault weapon) and in P.C. § 30605 (unlawfully possessing an assault weapon) so that peace officer trainees can legally use tactical assault rifles while engaged in firearms training.

Exempts from the provisions of P.C. §§ 30600 and 30605 the loan of an assault weapon to, or the possession of an assault weapon by, a person enrolled in the basic Commission on Peace Officer Standards and Training (POST) training course while engaged in firearms training, if the assault weapon does not leave the training facility, and if the person has met minimum peace officer hiring standards and is currently employed by a specified law enforcement agency.

Pen. Code § 31360 (Amended; AB 92): Body Armor:

New subdivision (b) is added, making it a new misdemeanor crime to purchase, own, or possess body armor while the offender is prohibited from possessing a firearm under any California law.

Punishment: Up to six months in jail and/or a fine of up to $1,000. (P.C. § 19)

The section specifically exempts offenders who are prohibited from possessing firearms under P.C. § 29610 (prohibiting minors from possessing any type of firearm).

Judges are required to advise a defendant of the body armor prohibition when advising the defendant of a firearm prohibition. Offenders are required to relinquish any body armor in their possession.

Note: Subdivision (a) remains the felony crime of a convicted violent felon purchasing, owning, or possessing body armor.

As with the felony body armor crime, as provided under subd. (c), a person convicted of the new misdemeanor body armor crime whose employment, livelihood, or safety depends on the ability to legally possess and use body armor, may file a petition with the local chief of police or sheriff to have the body armor prohibition reduced or eliminated.

Pen. Code §§ 31630 & 31640 (Amended; AB 724) and 31640; Further Amended; AB 1598): Additional Languages and Topics Added to the Firearm Safety Certificate Program:

AB 724: Tagalog, Vietnamese, Korean, Dari, Armenian, traditional Chinese, and simplified Chinese are all added to the list of languages (English and Spanish) for which DOJ must make available items related to the Firearm Safety Certificate program; i.e., the firearm safety instruction manual, audiovisual materials, and the written test for a firearm safety certificate.

AB 1598: Additional topics that the firearm safety test must cover are added:

1. The reasons for and risks of owning a firearm, including the increased risk of death to someone in the household by suicide, homicide, or unintentional injury.

2. Current law as it relates to eligibility to own or possess a firearm, gun violence restraining orders, domestic violence restraining orders, and privately manufactured firearms.

Pen. Code § 31641 (New; AB 1598): Firearm Safety Certificate Study Guide:

DOJ is required to prepare a firearm safety certificate study guide in several languages that explains the information specified in P.C. § 31640 that the firearm safety test must cover. Firearm safety instructors are required to be certified pursuant to existing P.C. § 31635 to provide the study guide to an applicant for a firearm safety certificate prior to the test date. The study guide may be provided as an electronic copy by text or email, or as a physical copy. DOJ is required to offer copies of the study guide at actual cost to certified firearm safety instructors.

Pen. Code § 32110 (Amended; SB 368): Unsafe Handguns; Exceptions:

The following is added to the list of circumstances that are exempt from specified provisions related to unsafe handguns (P.C. §§ 31900–31910 and 32000–32030):

1. The delivery of a concealable firearm to a licensed firearms dealer for purposes of storage pursuant to new P.C. § 26892 or existing P.C. § 29830.

Note: New P.C. § 26892 requires licensed firearm dealers to accept for temporary storage a firearm that is surrendered to prevent harm, such as suicide. Existing P.C. § 29830 permits a person who is prohibited from owning or possessing firearms to transfer firearms to a licensed firearms dealer for storage during the duration of the prohibition.

2. The delivery of a concealable firearm by a licensed firearms dealer to a person other than the owner pursuant to new P.C. § 26892.

Note: New P.C. § 26892 permits a dealer to transfer a stored firearm to person designated by the firearm’s owner when the owner cannot legally retake possession of the firearm, because, for example, of a conviction that prohibits the owner from having firearms.

Pen. Code § 34210 (New; AB 1598; Effective January 1, 2025): Pamphlet Explaining the Risks of Owning a Firearm:

DOJ is required to create a pamphlet in several languages that explains the “reasons for and risks of owning a firearm and bringing a firearm into a home, including the increased risk of death to someone in the household by suicide, homicide or unintentional injury.”

DOJ is permitted to solicit input from any reputable association or organization in the development of the pamphlet.

DOJ is required to make the pamphlet available on its website in a format so that a firearms dealer can distribute the pamphlet to a prospective firearm purchaser or transferee as required by new P.C. § 26866. (See above.)

Pen. Code § 34400 (New; AB 28): Gun Violence Prevention and School Safety Act:

A new Chapter 3 in Division 12 of Title 4 of Part 6 of the Penal Code entitled “Firearm and Ammunition Excise Tax Certificates of Registration” is created, authorizing DOJ to revoke an ammunition vendor license or to remove a firearms dealer or firearms manufacturer from the centralized list maintained by DOJ upon notification from the California Dep’t of Tax and Fee Administration that a seller’s permit for a specified violation of the Revenue & Taxation Code.

Notes:

Uncodified Section One of this bill provides that it shall be known as the “Gun Violence Prevention and School Safety Act.”

This bill also creates a new Part 16 in Division 2 of the Revenue & Taxation Code (R&T Code §§ 36001–36043) entitled “Firearm, Ammunition, and Firearm Precursor Part Excise Tax.” Pursuant to these new Revenue & Taxation Code sections, beginning July 1, 2024, an excise tax will be imposed upon licensed firearms dealers, firearms manufacturers, and ammunition vendors at the rate of 11% of gross receipts from the retail sale of firearms, firearm precursor parts, and ammunition, except when sold to active or retired peace officers or to a law enforcement agency. These sections provides that the money raised from this tax will go to the Board of State and Community Corrections to fund the California Violence Intervention and Prevention (CalVIP) Grant Program; to the State Dep’t of Education to enhance school safety by addressing risk factors for gun violence affecting students in kindergarten through grade 12; to the Judicial Council to support a court-based firearm relinquishment grant program; to DOJ to fund a “victims of gun violence grant program,” and to support activities to inform firearm and ammunition purchasers, and firearm owners, about gun safety laws and responsibilities; to the Office of Emergency Services to provide counseling and trauma-informed support services to direct and secondary victims of mass shootings and gun homicides; and to the Firearm Violence Research Center at the University of California at Davis.

Welf. & Inst. Code § 8103 (Amended; AB 455): Persons Found to be a Danger to Self or Others and Prohibition From Possessing Firearms:

Adds a new subdivision (i) is added to provide that if a person is found by a court, on or after July 1, 2024, to be prohibited from owning or controlling a firearm because that person is a danger to self or others, and has been granted pretrial mental disorder diversion pursuant to P.C. § 1001.36, the person shall not own, possess, control, receive, or purchase, or attempt to own, possess, control, receive, or purchase, any firearm until the person successfully completes diversion or firearm rights are restored pursuant to W&I § 8103(g)(4).

The court is required to notify DOJ of a firearms prohibition order within one court day after issuing the order. The court is also required to notify DOJ that the person has successfully completed diversion, within one court day after completion.

The pre-exiting W&I § 8103(i) is re-lettered to subdivision (j) and continues to provide that a person who owns, possesses, controls, purchases, receives, or attempts to purchase or receive a firearm or other deadly weapon in violation of W&I § 8103 is punishable by a jail sentence pursuant to P.C. § 1170(h) (16 months, two years, or three years), or by up to one year in county jail.

Note: This bill also amends P.C. § 1001.36 (mental disorder diversion; see above) to permit the prosecution to request an order from the court that an offender who has been granted mental disorder diversion be prohibited from owning or possessing a firearm until successful completion of diversion, because the offender is a danger to self or others.

Note: Existing W&I § 8103(g)(4) permits a prohibited person to petition the court to allow firearms and requires that the district attorney represent the people of California in these hearings. It is the petitioner’s burden to prove by a preponderance of the evidence that the petitioner is likely to use firearms in a safe and lawful manner. Even if the petitioner meets this burden, the court is not required to permit firearms. Instead, the court “may” order that the person is permitted to own, control, receive, possess, or purchase firearms.

Note: New subdivision (i) in Section 8103 contains a cross-reference to subdivision (m) in P.C. § 1001.36 that appears to be a drafting error. The language provides “has been granted pretrial mental health diversion pursuant to subdivision (m) of Section 1001.36 of the Penal Code …” Subdivision (m) simply permits the prosecution to request that the court prohibit a person granted diversion from having firearms. The cross-reference should simply be to P.C. § 1001.36 without a subdivision designation. The drafting error does not change the meaning or substance of the provision, which is that a person who has been found to be a danger to self or others and has been granted P.C. § 1001.36 diversion, cannot have firearms until the successful completion of diversion, or until firearm rights are restored pursuant to W&I § 8103(g)(4).

Good Samaritan Laws:

Health & Safety Code § 1799.113 (New; AB 1166): Emergency Treatment for Opioid Overdose:

Any person who, in good faith and not for compensation, renders emergency treatment at the scene of an opioid overdose or suspected opioid overdose by administering an opioid antagonist, such as naloxone hydrochloride, is entitled to qualified immunity from civil liability. Such a person is not liable for civil damages resulting from an act or omission related to the rendering of emergency treatment.

There is no immunity, however, for conduct that constitutes gross negligence or willful or wanton misconduct.

Note: See existing H&S Code § 1799.102, which provides qualified immunity for rendering emergency medical or non-medical care at the scene of an emergency, and H&S Code §§ 11870, 11871, and 11872 (New; SB 234), providing for opioid antagonist on premises of stadiums, concert venues, and amusement parks.

Health & Safety Code §§ 11870, 11871, and 11872 (New; SB 234): Opioid Antagonist on Premises of Stadiums, Concert Venues, and Amusement Parks:

New Chapter 16 in Part 2 of Division 10.5 of the Health & Safety Code, entitled “Opioid Antagonist on Premises of Stadiums, Concert Venues, and Amusement Parks,” is created, requiring stadiums, concert venues, and amusement parks to maintain unexpired doses of naloxone hydrochloride or another opioid antagonist on their premises at all times. At least two employees who are aware of the location of the opioid antagonist is required.

A person who, in good faith administers naloxone hydrochloride or another opioid antagonist by nasal spray or by auto-injector on the premises of a stadium, concert venue, or amusement park to a person who appears to be experiencing an opioid overdose is exempted from criminal and civil liability. This exemption also applies to an employee who renders aid. Also, the stadium, concert venue, or amusement park, and their employees, when opioid overdose aid is rendered on the premises are exempted from liability.

If the person rendering aid is not an employee of the stadium, concert venue, or amusement park, or an employee of the entity that owns the location, there is no exemption from civil or criminal liability for gross negligence or willful and wanton misconduct.

Lastly, stadiums, concert venues, amusement parks, and their employees, have no obligation to administer an opioid antagonist on the premises and are not civilly or criminally liable for failing to identify an opioid overdose.

Hate Crimes:

Pen. Code § 422.87 (Amended; AB 499): Mandatory Hate Crimes Policy by Law Enforcement:

Law enforcement agencies are required to (as opposed to “may”) adopt a hate crimes policy, with a deadline date of July 1, 2024. As amended, state law enforcement agencies are added to this requirement.

Previously, this section provided that a local law enforcement agency “may” adopt a hate crimes policy, and that any local agency that updated a hate crimes policy or adopted a new policy must include specified topics in that policy, such as definitions relating to hate crimes, information about bias motivation, the underreporting of hate crimes, a protocol for reporting hate crimes to DOJ, and a checklist of first responder responsibilities. Now, as amended, all local and state law enforcement agencies are required to adopt a hate crimes policy by July 1, 2024. Also as amended, a schedule of the hate crimes training as required by P.C. § 13519.6, and any other hate crimes or related training the agency may conduct.

Note: This bill also amends P.C. § 13023, below, relating to the providing of hate crimes policies and brochures to DOJ, and P.C. § 13519.6, relating to hate crimes training for law enforcement. See below, under “Law Enforcement,” for more information.

Pen. Code § 13023 (Amended; AB 449): Hate Crime Procedures to be Reported to DOJ:

The Attorney General is required to direct local and state law enforcement agencies to report information about hate crimes (policies and brochures) to DOJ in a manner to be prescribed by the Attorney General. The Attorney General is then required to review the formal hate crimes policies that amended P.C. § 422.87 requires all local and state law enforcement agencies to adopt by July 1, 2024, and the hate crimes brochures that existing P.C. § 422.92 requires local and state law enforcement agencies to make available. A tiered schedule of when law enforcement agencies must submit their hate crimes materials to DOJ is established as follows:

By January 1, 2025, and every four years thereafter: Law enforcement agencies in the counties of Los Angeles, Orange, San Luis Obispo, Santa Barbara, and Ventura.

By January 1, 2026, and every four years thereafter: Law enforcement agencies in the counties of Alameda, Contra Costa, Del Norte, Humboldt, Lake, Marin, Mendocino, Monterey, Napa, San Benito, San Francisco, San Mateo, Santa Clara, Santa Cruz, Solano, and Sonoma.

By January 1, 2027, and every four years thereafter: Law enforcement agencies in the counties of Colusa, Glenn, Lassen, Modoc, Nevada, Plumas, Shasta, Sierra, Siskiyou, Sutter, Tehama, Trinity, Yuba, Alpine, Amador, Calaveras, El Dorado, Placer, Sacramento, San Joaquin, Stanislaus, Tuolumne, and Yolo, and special districts of the San Francisco Bay Area Rapid Transit District, California Highway Patrol, the Dep’t of State Hospitals, and the state park system.

By January 1, 2028, and every four years thereafter: Law enforcement agencies in the counties of Fresno, Kern, Kings, Madera, Mariposa, Merced, Tulare, Imperial, Inyo, Mono, Riverside, San Bernardino, and San Diego.

Note: This bill also amends P.C. § 422.87 to require all local and state law enforcement agencies to adopt a hate crimes policy by July 1, 2024, and amends P.C. § 13519.6, relating to hate crimes training for law enforcement. For more information see

See Pen. Code § 13519.6 (Amended; AB 449): Consultation with Hate Crime Subject-Matter Experts, under Law Enforcement, below.

Homeless Issues:

Pen. Code §§ 11163.70, 11163.71, 11163.72, 11163.73, & 11163.74 (New; AB 271): Homeless Death Review Committees:

New Article 2.4 to Chapter 2 of Title 1 of Part 4, entitled “Homeless Death Review Committees,” has been added to the Penal Code. These new provisions permit a county to establish a homeless death review committee to assist local agencies in identifying the root causes of the deaths of homeless people, and to facilitate communication among persons who perform autopsies and the various persons and agencies involved in supporting the homeless population.

A county is authorized to develop a protocol for performing autopsies on the homeless, in order to assist coroners in identifying cause and mode of death.

Oral and written communications, and documents shared within or produced by a homeless death review committee, are confidential, as are oral and written communications provided by a third party to a homeless death review committee.

The disclosure of the following types of information to a homeless death review committee is authorized; medical information, mental health information, criminal history information, information provided to probation officers in the course of their duties, public social services information, Medi-Cal information, reports of suspected elder or dependent adult abuse, and reports of physical injuries inflicted by a firearm or that resulted from assaultive or abusive conduct.

A homeless death review committee is authorized to disclose its recommendations if a majority of the committee agrees to do so. It is required that information gathered by a homeless death review committee and recommendations made by it shall be used by a county to develop education and prevention strategies to improve services for the homeless population.

Homicide:

See “Abortions,” above, under Pen. Code § 187 (Amended; SB 345): Abortion Exception for Homicides.

In-Vehicle Cameras:

Bus. & Prof. Code §§ B&P 22948.50, 22948.51, 22948.52, 22948.53, 22948.54, 22948.55, 22948.56, 22948.57, 22948.58 & 22948.59 (New; SB 296): Regulation of In-Vehicle Cameras:

New Chapter 36 in Division 8 of the Business and Professions Code regulates new vehicles manufactured with in-vehicle cameras installed, requiring dealers to provide a purchaser with a written or electronic notice that the vehicle has an in-vehicle camera, and to obtain the purchaser’s signature on the disclosure.

An “in-vehicle camera” is defined as a device included as part of a vehicle by the manufacturer that is designed to, or is capable of, recording images or video inside the cabin of the vehicle. These requirements do not apply to cameras installed in vehicles that are primarily for commercial use, such as buses, motortrucks, and truck tractors.

The use of recordings from in-vehicle cameras are restricted, such as by prohibiting any image or video recording from being used for advertising or sold to a third party. An image or video recording is prohibited from being shared with a third party unless the user consents or the images or recordings are shared only to the extent necessary to diagnose, service, or repair the in-vehicle camera, or if shared pursuant to a records request pursuant to P.C. § 832.7(b) (peace officer and custodial officer personnel records), Gov’t. Code § 7923.625 (law enforcement records relating to a critical incident), or Code of Civ. Proc. §§ 2016.010–2036.050 (the Civil Discovery Act).

The retention, downloading, and accessing of images and recordings is restricted, such as when the images and recordings are retrieved or shared without the user’s permission such as for court or arbitration proceedings or to facilitate an emergency medical response to a motor vehicle crash.

A district attorney or the Attorney General may bring a civil action for a violation of this chapter. A court is permitted to issue injunctions and make any orders or judgments necessary to prevent a violation of this chapter.

Up to $2,500 civil penalty may be imposed for each vehicle equipped with an in-vehicle camera that is sold or leased in violation of this chapter.

Note: According to the legislative history of this bill, in-vehicle cameras serve important safety functions, such as warning drivers who appear to be falling asleep or who are distracted, and they provide information about the cause of a crash. There are privacy concerns because the cameras capture conversations and facial and body images.

Juveniles:

Welf. & Insti. Code § 208.55 (New; AB 134; Effective July 10, 2023): Sight and Sound Contact in Juvenile Facilities:

A juvenile in a juvenile facility is permitted to have sight or sound contact with other juveniles.

An adult detained in a juvenile facility, however, is prohibited from having sight and sound contact with juveniles under 18 years of age.

“Sight or sound contact” is defined as any physical, clear visual, or direct verbal contact that is not brief and inadvertent.

“Juvenile” is defined as a person who is any of the following:

1. Under age 18;

2. Under the maximum age of juvenile court jurisdiction who is not currently an incarcerated adult; or

3. Whose case originated in the juvenile court and is subject to W&I Code § 208.5 (e.g., a person who is over age 18, in custody, and still subject to the jurisdiction of the juvenile court.)

“Incarcerated adult” is defined as a person age 18 or older who is not subject to the jurisdiction of the juvenile court, and who is in custody for a criminal charge or has been convicted of a criminal offense.

Note: Uncodified Section One of this bill sets forth that the Legislature’s intent with new W&I Code § 208.55 is to clarify the circumstances in which youth who are age 18 or older may have sight or sound contact with youth under 18 years of age when detained in juvenile halls, special purpose juvenile halls, ranches, camps, and secure youth treatment facilities.

Welf. & Insti. Code § 625.7 (New; AB 2644; 2022 Legislation; Effective July 1, 2024): Interrogation Tactics of Juveniles:

Beginning July 1, 2024, a law enforcement officer is prohibited from using threats, physical harm, deception, or psychologically manipulative interrogation tactics during the custodial interrogation of a minor age 17 and younger. This applies to both felony and misdemeanor cases.

Exception: When the law enforcement officer reasonably believed the information sought was necessary to protect life or property from imminent threat, and the questions asked were limited to those that were reasonably necessary to obtain information related to that threat.

An officer is permitted to use a lie detector test if the test is voluntary, and was not obtained through the use of threats, physical harm, deception, or psychologically manipulative interrogation tactics, and the officer does not suggest that the lie detector results are admissible in court or misrepresent the lie detector results to the minor.

“Deception” is defined as including, but not being limited to, the knowing communication of false facts about evidence, misrepresenting the accuracy of facts, or false statements regarding leniency.

“Psychologically manipulative interrogation tactics” is defined as including but not being limited to, the following:

1. “Maximization and minimization” techniques, such as scaring or intimidating a minor by repetitively asserting guilt despite denials; or exaggerating the magnitude of the charges or the strength of the evidence, including suggesting the existence of evidence that does not exist; or minimizing the moral seriousness of the offense, such as falsely communicating the conduct is justified, excusable, or accidental;

2. Making direct or indirect “promises of leniency,” such as indicating the minor will be released if he or she cooperates; or

3. Employing the “false” or “forced” choice strategy, where the minor is encouraged to select one of two options, both incriminatory, but one is characterized as morally or legally justified or excusable.

Welf. & Insti. Code §§ 635 & 636 (Amended; SB 448): In-Custody Minors and Home Supervision:

Both sections are amended to prohibit a court from detaining a minor in custody based solely on the minor’s county of residence. A minor is to be “be given equal consideration for release on home supervision” pursuant to W&I § 628.1, which may include electronic monitoring, regardless of whether the minor lives in the county where the offense occurred.

A juvenile court has authority to order a minor placed on home supervision, with or without electronic monitoring, regardless of the minor’s county of residence.

Notes:

W&I §§ 635(a) and 636(a) continue to provide that a minor be released from custody unless the minor has violated an order of the juvenile court or has escaped from the commitment of the juvenile court, or it is a matter of immediate and urgent necessity for the protection of the minor or reasonably necessary for the protection of the person or property of another that the minor be detained, or, it is likely the minor will flee to avoid the jurisdiction of the court.

W&I § 635(b)(1) continues to provide that the circumstances and gravity of the offense may be considered “in conjunction with other factors,” in making a release decision.

W&I § 636(a) continues to provide that if a court makes the decision to detain, the detention cannot exceed 15 judicial days.

Welf. & Insti. Code §§ 707 (Amended), 707.2 (New), & 707.5 (Amended; SB 545): Transfer of Juvenile Cases to Adult Court:

W&I Code § 707 is amended to require (instead of permit) a court to give weight to specified factors when it considers the five criteria for deciding whether to transfer a juvenile case to adult court. (I.e.; “may give weight” is changed to “shall give weight.”) The five criteria are (1) the degree of criminal sophistication exhibited by the minor, (2) whether the minor can be rehabilitated prior to the expiration of the juvenile court’s jurisdiction, (3) the minor’s previous delinquent history, (4) the success of previous attempts by the juvenile court to rehabilitate the minor, and (5) the circumstances and gravity of the alleged offense.

Additional factors are added that the court is required to give weight to when considering the degree of criminal sophistication exhibited by the minor: I.e.; (1) the minor’s involvement in the child welfare or foster care system, and (2) the status of the minor as a victim of human trafficking, sexual abuse, or sexual battery.

The court is now required to consider evidence that the person against whom the minor is accused of committing an offense trafficked, sexually abused, or sexually battered the minor, when the court considers the circumstances and gravity of the offense the minor committed.

New W&I § 707.2 provides that even if a court finds at a transfer hearing that a juvenile offender is not amenable to rehabilitation under the jurisdiction of the juvenile court, the court is prohibited from transferring the case to adult court if it receives evidence that the minor was trafficked, sexually abused, or sexually battered by the alleged victim prior to or during the commission of the alleged offense, unless the court finds by “clear and convincing evidence” that the alleged victim did not traffic, sexually abuse, or sexually batter the minor.

W&I § 707.5 is amended to permit a juvenile case that has already been transferred to adult court to be returned to juvenile court if the court receives evidence that the minor was trafficked, sexually abused, or sexually battered by the alleged victim prior to or during the commission of the offense, unless the court finds by clear and convincing evidence that the alleged victim did not sexually abuse, sexually batter, or traffic the minor prior to or during the offense.

Added to this section is the following: “This paragraph shall be construed to prioritize the successful treatment and rehabilitation of minor victims of human trafficking and sex crimes who commit acts of violence against their abusers. It is the intent of the Legislature that these minors be viewed as victims and provided treatment and services in the juvenile or family court system.”

Note: Uncodified Section 4 of this bill provides that “[t]o the extent that this act has an overall effect of increasing the costs already borne by a local agency for programs or levels of service mandated by the 2011 Realignment Legislation within the meaning of Section 36 of Article XIII of the California Constitution, it shall apply to local agencies only to the extent that the state provides annual funding for the cost increase.”

Law Enforcement:

Family Code § 6228 (Amended; SB 290): Reports, Recordings, Photos, and Exhibits Available to Victims:

Copies of photographs of a victim injuries and property damage, and any other photos noted in a police report, along with copies of 911 recordings if any, is added to the list of items (incident report face sheets and incident reports) that a local or state law enforcement agency is required to provide free of charge to a victim or victim’s representative. This applies to domestic violence, sexual assault, stalking, human trafficking, and elder/dependent adult abuse cases.

The time limit for victims to request this information from law enforcement has been extended from two years to five years after the date of completion of the incident report.

The section continues to require that information requested pursuant to this section be made available no later than five working days after the request, unless there is good cause to delay availability to 10 working days after a request.

Gov’t. Code § 12525.5 (Amended; AB 2773; 2022 Legislation): Annual Reports Re: Pedestrian Stops:

The requirement of local and state law enforcement agencies to report annually to the Attorney General on all stops conducted by the agency is clarified to apply to pedestrian stops, traffic stops, and any other kind of stop.

The list of additional information that must be reported is expanded to include: “The reason given to the person stopped at the time of the stop.”

See also new V.C. § 2806.5 (“Vehicle Code Violations,” below), requiring that a peace officer making a traffic or pedestrian stop, before engaging the person stopped in questioning related to a criminal investigation or a traffic violation, tell the person stopped the reason for the stop, unless the officer has a reasonable belief that withholding the reason for the stop is necessary to protect life or property from imminent threat.

Pen. Code § 832.7 (Amended; AB 134): Peace Officer Personnel Records and Officer Misconduct Investigations:

The section that deals with the confidentiality of peace officer personnel records has been amended to add the Commission on Peace Officer Standards and Training (POST) to the list of entities (local law enforcement agencies, grand juries, district attorney offices, and the Attorney General) that are authorized to conduct investigations into peace officer misconduct.

Pen. Code § 13510.6 (New; AB 443; Effective January 2, 2026): Determination of Biased Conduct by Law Enforcment Officers:

The Commission on Peace Officer Standards & Training (POST) to establish a definition of “biased conduct” that includes all of the following:

1. Conduct engaged in by a peace officer in any encounter with the public, first responders, or employees of a criminal justice agency that is motivated by bias toward any person’s protected class or characteristic, whether actual or perceived.

2. Biased conduct may result from implicit or explicit biases.

3. Conduct is biased if a reasonable person with the same training and experience would conclude, based upon the facts, that the officer’s conduct resulted from bias towards that person’s membership in a protected class.

4. An officer need not admit biased or prejudiced intent for conduct to be determined to be biased conduct.

POST is also required to develop guidance for local law enforcement departments on performing effective internet and social media screenings of officer applicants. This guidance is required to include strategies for identifying applicant social media profiles and for searching for, and identifying, content indicative of potential biases, such as affiliation with hate groups.

A law enforcement agency that is investigating a complaint of any law enforcement activity described in existing P.C. § 13519.4(e) (traffic or pedestrian stop, actions during a stop, questions, frisks, consensual or non-consensual searches, seizure of property, removing vehicle occupants during a traffic stop, issuing a citation, or making an arrest) is required to determine if racial profiling occurred.

Note: Existing P.C. § 13519.4(e) defines “racial or identity profiling” as the consideration of, or reliance on, to any degree, actual or perceived race, color, ethnicity, national origin, age, religion, gender identity or expression, sexual orientation, mental disability, or physical disability in deciding which persons to subject to a stop or in deciding upon the scope or substance of law enforcement activities following a stop, except that an officer may consider and rely on characteristics listed in a specific suspect description.

Penal Code §§ 13510.8, 13510.85, & 13510.9 (Amended; SB 449): Police Decertification Act:

The Police Decertification Act of 2021 (SB 2), which became effective on January 1, 2022, has been amended as follows:

Adds that the Commission on Peace Officer Standards & Training (POST) may cancel the certificate or proof of eligibility of a peace officer if POST determines that there was fraud or misrepresentation made by a peace officer applicant at any time during the application process.

The Act continues to permit revocation of certification as a peace officer if the person has become ineligible to hold office as a peace officer, and continues to permit suspension or revocation of certification if the person has been terminated for cause from employment as a peace officer or engaged in specified serious misconduct.

POST is authorized to consider a peace officer’s prior conduct and service record in determining whether suspension (in addition to just “revocation”) is appropriate for serious misconduct. Previously, this provision referenced “revocation” only.

The Peace Officer Standards Accountability Division is authorized to redact records introduced at hearings of the Peace Officer Standards Accountability Board and reviewed by POST (which are public records) to remove personal identifying information, to preserve the anonymity of whistleblowers, complainants, victims, and witnesses, and to protect confidential medical and financial information.

POST is further authorized to withhold from a peace officer information about peace officer misconduct if POST determines that disclosure may jeopardize an ongoing investigation, put a victim or witness at risk of harm or injury, or may otherwise create a risk of harm or injury that outweighs the interest in disclosure. Information released to a law enforcement agency that has been withheld from the subject peace officer must be kept confidential by the receiving agency.

Pen. Code § 13519.6 (Amended; AB 449): Consultation with Hate Crime Subject-Matter Experts in Establishing Guidelines and Training for Law Enforcement:

Commission on Peace Officer Standards & Training (POST) is required to consult with subject-matter experts when hate crimes guidelines and training for law enforcement officers are updated.

The guidelines developed by POST are required to include a model hate crimes policy framework for use by law enforcement agencies in adopting a hate crimes policy.

An additional requirement is added for the model hate crimes policy framework; i.e., that a list of all requirements that P.C. § 422.87 or any other law mandates a law enforcement agency to include in its hate crimes policy.

Notes:

P.C. § 422.87 specifies a number of topics a law enforcement agency’s hate crimes policy must include. See “Hate Crimes,” above.

This bill also amends P.C. § 422.87 to require all local and state law enforcement agencies to adopt a hate crimes policy by July 1, 2024, and amends P.C. § 13023 to list dates by which law enforcement agencies must submit their hate crimes policies and brochures to DOJ. See Pen. Code § 422.87: Mandatory Hate Crimes Policy by Law Enforcement, and Pen. Code § 13023: Hate Crime Procedures to be Reported to DOJ, under “Hate Crimes,” above.

Pen. Code § 13665 (Amended; AB 994): Posting of Booking Photos on Social Media by Law Enforcment:

Police and sheriff’s departments are required, when sharing on social media the booking photo of a person arrested for any crime (violent or non-violent), to use the name and pronouns given by the arrestee. Police and sheriffs are permitted to include legal names and known aliases if “using the names or aliases will assist in locating or apprehending the individual or reducing or eliminating an imminent threat to an individual or to public safety or an exigent circumstance exists that necessitates the use of other legal names or known aliases of an individual due to an urgent and legitimate law enforcement interest.”

Police and sheriff’s departments are required to remove any booking photo from its social media page within 14 days unless one of these circumstances exist:

a. The suspect is a fugitive or an imminent threat to an individual or to public safety, and releasing the suspect’s image will assist in locating or apprehending the suspect or reducing or eliminating the threat; or

b. A judge orders the release of the suspect’s image based on a finding that the release is in furtherance of a legitimate law enforcement interest; or

c. There is an exigent circumstance that necessitates the dissemination of the suspect’s image in furtherance of an urgent and legitimate law enforcement interest.

Note: This section continues to require that one of the above three circumstances must exist before law enforcement may share on social media the booking photo of a person arrested for a non-violent crime, i.e., a crime not specified in P.C. § 667.5(c). Also, law enforcement may continue to share on social media the booking photo of a person arrested for a violent crime (P.C. § 667.5(c)) regardless of the existence of any of these three circumstances, but must remove the photo within 14 days unless one of the above three circumstances exists at that time. The name and pronoun requirements of the bill, and the amended removal provisions, apply retroactively to any booking photo shared on social media. Therefore, these new provisions will apply on January 1, 2024, to all booking photos already posted to social media.

Veh. Code § 2806.5 (New; AB 2773): Requirement That a Peace Officer State the Reason for a Traffic Stop Before Engaging in Any Questioning Related to a Criminal Investigation:

Pursuant to this new Vehicle Code section, a peace officer making a traffic or pedestrian stop must, before engaging in questioning related to a criminal investigation or traffic violation, state the reason for the stop. An exception applies if the officer has a reasonable belief that withholding the reason for the stop is necessary to protect life or property from imminent threat.

The officer is also required to document the reason for the stop on any citation or police report resulting from the stop.

Note: This bill also amends Gov’t. Code § 12525.5 to add “The reason given to the person stopped at the time of the stop” to the types of information that local and state law enforcement agencies are required to report annually to the Attorney General on all stops conducted by the agency.

Marijuana (Cannabis):

Bus. & Prof. Code § 26010.6 (New; AB 128) (Effective July 10, 2023): The Medicinal and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA):

MAUCRSA is amended to require the Dept. of Cannabis Control to submit fingerprints to DOJ for criminal history checks on employees, prospective employees, contractors, and subcontractors whose duties include access to criminal offender record information or access to cannabis, cannabis products, or other controlled substances. The Dept. is also required to submit to DOJ fingerprints for all peace officer employees or prospective peace officer employees of the Dept. of Cannabis Control.

Bus. & Prof. Code §§ 26010.6, 26050, & 26051.5 (Amended; AB 128, AB 152) (Effective July 10, 2023, and September 13, 2023, respectively): The Medicinal and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA):

B&P § 26010.6 is clarified to eliminate AB 128’s requirement that the Dept. of Cannabis Control request subsequent arrest notification. Also added a requirement that the Dept. of Cannabis Control to submit fingerprints to DOJ for criminal history checks on employees, prospective employees, contractors, and subcontractors whose duties include access to criminal offender record information or access to cannabis, cannabis products, or other controlled substances. The Dept. of Cannabis Control is also now required to submit to DOJ fingerprints for all peace officer employees or prospective peace officer employees of the Dept. of Cannabis Control.

B&P § 26050 is amended via AB 128 to add an additional licensing classification; i.e., “Cannabis event organizer.”

B&P §26050 via AB 152 to add another new licensing classification; i.e.,
“processor.”

B&P § 26051.5 is amended via AB 128 to exempt an owner of a cannabis business who has previously submitted fingerprints from having to submit additional fingerprints in connection with a subsequent application for a cannabis license.

Bus. & Prof. Code §§ 26320, 26321, 26322, 26323, 26324 & 26325 (New, SB 1186; from 2022 legislation): Medicinal Cannabis Patients’ Right of Access Act:

New Chapter 26 in Division 10 of the Business & Professions Code, entitled “Medicinal Cannabis Patients’ Right of Access Act” is amended in order to ensure that medicinal cannabis can be delivered to medicinal cannabis patients.

A local jurisdiction is prohibited from adopting or enforcing any regulation that prohibits, or effectively prohibits, the retail sale by delivery of medicinal cannabis to medicinal cannabis patients or their primary caregivers by licensed medicinal cannabis businesses. Specifically prohibited is the regulation of any of the following that has the effect of prohibiting the retail sale by delivery of medicinal cannabis:

1. The number of medicinal cannabis businesses authorized to deliver medicinal cannabis in the local jurisdiction;

2. The operating hours of medicinal cannabis businesses;

3. The number or frequency of sales by delivery of medicinal cannabis;

4. The types or quantities of medicinal cannabis authorized to be sold by delivery; and

5. The establishment of physical business premises.

Nothing in this new chapter prohibits the adoption or enforcement of reasonable regulations on the retail sale by delivery of medicinal cannabis, including zoning requirements that are not inconsistent with this new chapter, public health and safety requirements, licensing requirements, and the imposition and collection of applicable state and local taxes.

Nothing in this new chapter should be construed to affect the ability of a local jurisdiction to adopt or enforce regulations on “commercial” cannabis operations other than the retail sale by delivery of medicinal cannabis.

A civil action may be brought to enforce this new chapter by the Attorney General, a medicinal cannabis patient or primary caregiver, a medicinal cannabis business, or “any other party otherwise authorized by law.”

Note: The purpose of this bill is to ensure that medicinal cannabis patients can receive deliveries of medicinal cannabis at their residences.

Gov’t. Code § 12954 (New; AB 2188; 2022 Legislation), and (Amended; SB 700): Marijuana and the Work Place:

A new section passed in 2022 (AB 2188), with a delayed operative date of January 1, 2024, prohibits an employer from discriminating against a person in hiring, termination, or in any condition of employment, or from penalizing a person, based on either of the following:

1. The person’s use of cannabis off the job and away from the workplace (but does permit an employer to discriminate in hiring or to penalize a person based on a pre-employment drug screening that does not screen for non-psychoactive cannabis metabolites); or

2. An employer-required drug screening test that has found the person to have non-psychoactive cannabis metabolites in hair, blood, urine, or other bodily fluids.

This new section does not apply to an employee in the building and construction trades or to an applicant or employee hired for a position that requires a federal government background investigation or security clearance.

Nothing in this section permits an employee to possess, to be impaired by, or to use, cannabis on the job.

SB 700 further amends this new section to provide that it is unlawful for an employer to request information from an applicant about the applicant’s prior use of cannabis.

Gov’t. Code § 53069.4 (Amended; AB 1684): Authorization of an Ordinance to Declare the Unlicensed Commercial Cannabis Activity as a Public Nuisance:

The authorization of a local agency to adopt an ordinance beyond one that targets the illegal cultivation of cannabis is expanded to include the authorization of an ordinance to declare that unlicensed commercial cannabis activity is a public nuisance and to provide for the imposition of administrative fines or penalties for the violation of zoning restrictions and health and safety requirements, if the violation is the result of, or facilitates, the cultivation, manufacturing, processing, distribution, or the retail sale of cannabis for which a license is required. The ordinance may provide for fines and penalties against property owners and owners of the business. The maximum fine or penalty is $1,000 per violation and $10,000 per day.

The local agency may refer cases involving unlicensed commercial cannabis activity to the Attorney General for a civil enforcement action pursuant to existing B&P §§ 17200–17210 (unfair competition actions) or existing B&P § 26038 (which permits the Attorney General, a city prosecutor, or a county counsel to being an action for civil penalties against a person engaging in commercial cannabis activity without a license.)

Health & Safety Code § 11358 (Amended; SB 753): Cultivating Cannabis Plants While Causing Harm to the Surface or Ground Water:

Causing harm to surface or ground water is added to the list of environmental circumstances that permit an adult who plants or cultivates more than six cannabis plants to be charged with a felony violation of this section.

Subdivision (d)(3)(G) now reads: “Intentionally or with gross negligence causing substantial environmental harm to surface or ground water, public lands, or other public resources.”

Note: This section continues to provide that specified violations of the Fish & Game Code, the Health & Safety Code, and the Water Code will trigger the ability to charge a felony. The section also permits a felony charge if a defendant has a prior conviction for a “super-strike” (P.C. § 667(e)(2)(C)(iv)), is required to register as a sex offender, or has two prior convictions for H&S § 11358(c) (the misdemeanor crime of an adult planting or cultivating more than six cannabis plants).

See Controlled Substances, above.

Missing Persons:

Gov’t. Code § 8594.11 (New; AB 946): Endangered Missing Advisory (EMA) Alert Program:

The California Highway Patrol’s (CHP) existing “Endangered Missing Advisory (EMA) Alert Program” is codified in this new Gov’t. Code provision. As written, the section now authorizes a law enforcement agency to request that CHP activate an EMA for a missing person if the person is developmentally disabled, cognitively impaired, has been abducted, or is not able to care for him- or herself, has gone missing under unexplainable or suspicious circumstances, and the law enforcement agency believes the person is in danger or peril.

Note: Existing law continues to provide the following alerts:

Amber Alert for missing children (Gov’t. Code § 8594);

Blue Alert for attacks on law enforcement officers (Gov’t. Code § 8594.5);

Silver Alert for missing elderly, developmentally disabled, or cognitively impaired people (Gov’t. Code § 8594.10);

Feather Alert for missing indigenous people (Gov’t. Code § 8594.13); and Yellow Alert for hit-and-run suspects when a death is involved (Gov’t. Code § 8594.15).

Gov’t. Code § 8594.14 (New; SB 673): Endangered Missing Advisory (EMA) Alert Program:

A law enforcement agency is authorized to request that the California Highway Patrol activate an “Ebony Alert” for missing Black youth, including young women and girls, who are reported missing under unexplained or suspicious circumstances, or who are at risk, developmentally disabled, or cognitively impaired, or who have been abducted.

A law enforcement agency is permitted to request an Ebony Alert if the agency determines that it would be an effective tool in the investigation, and permits the agency to consider these factors:

1. The missing person is between 12 and 25 years of age;

2. The missing person suffers from a mental or physical disability;

3. The person is missing under circumstances that indicate the person is in physical danger or may be subject to trafficking;

4. The law enforcement agency determines the person is missing under unexplained or suspicious circumstances;

5. The law enforcement agency believes that the person is in danger because of age, health, mental or physical disability, or environment or weather conditions, or that the person is in the company of a potentially dangerous person, or that there are other factors indicating that the person may be in peril;

6. The law enforcement agency has utilized available local resources; and

7. There is information available that, if disseminated to the public, could assist in the safe recovery of the missing person.

Post-Conviction Probation Programs:

Pen. Code § 1170 (Amended; SB 852): Probationary Fourth Waiver Searches:

SB 852 amends subdivision (h)(5)(B) of P.C. § 1170 to add that a defendant who is subject to search and seizure as part of the terms and conditions of mandatory supervision, is subject to search and seizure only by a probation officer or other peace officer.

Notes:

Uncodified Section One of SB 852 provides that it shall be known as the “PROTECT Act” (I.e.; “Prohibiting Rogue Officer Tricks and Ensuring Community Trust Act”).

Uncodified Section Two of the bill contains the Legislature’s declarations, which claim that Immigration and Customs Enforcement (ICE) employees use “probation ruses” by misrepresenting themselves as probation officers in order to gain access to homes. The Legislature also states that California law is clear that ICE employees are not California peace officers (P.C. § 830.85) and that California “must take necessary actions to eliminate any ambiguity under existing law and make it clear that ICE employees are not peace officers and cannot conduct probation searches and seizures.”

SB 852 also makes similar amendments to P.C. § 1203 (probation); P.C. §§ 1203.016, 1203.017, and 1203.018 (home detention and electronic monitoring); and P.C. § 1203.25 (release of probation violators).

Pen. Code § 1203 (Amended; SB 852): Probationary Fourth Waiver Searches:

New subdivision (m) is added to provide that a probationer is subject to search and seizure only by a probation officer or other peace officer.

Notes:

Uncodified Section One of this bill provides that it shall be known as the “PROTECT Act” (I.e.; “Prohibiting Rogue Officer Tricks and Ensuring Community Trust Act”).

This bill also makes similar amendments to P.C. § 1170(h) (mandatory supervision); P.C. §§ 1203.016, 1203.017, and 1203.018 (home detention and electronic monitoring); and P.C. § 1203.25 (release of probation violators).

Pen. Code §§ 1203.016, 1203.017, & 1203.018 (Amended; SB 852): Home Detention/ Electronic Monitoring Programs; Admission to the Probationer’s Residence:

These home detention/electronic monitoring programs are amended to require that participants admit a “probation officer or other peace officer” into their residences at any time for the purpose of verifying compliance with the conditions of detention.

Notes:

Uncodified Section One of this bill provides that it shall be known as the “PROTECT Act” (I.e.; “Prohibiting Rogue Officer Tricks and Ensuring Community Trust Act”).

This bill also makes similar amendments to P.C. §§ 1170(h) (mandatory supervision); 1203 (probation); and 1203.25 (release of probation violators).

Pen. Code § 1203.44 (New; AB 1360): Sacramento and Yolo Counties Residential Treatment Pilot Program: “Hope California:”

The counties of Sacramento and Yolo are authorized to offer a voluntary secured residential treatment pilot program, known as “Hope California,” for substance abusers who are convicted of “drug-motivated felony crimes.” The program would be in lieu of a jail or prison sentence imposed by the court. Disqualifiers Provides that all drug-motivated felony crimes are eligible for the program, except the following:

1. Sex crimes listed in P.C. § 290(c);

2. Serious felonies listed in P.C. §§ 1192.7(c) and 1192.8;

3. Violent felonies listed in P.C. § 667.5(c);

4. Domestic violence crimes defined in Fam. Code § 6211 (abuse perpetrated against a spouse, former spouse, cohabitant, former cohabitant, person with whom the offender has or has had a dating or engagement relationship; person with whom the offender has a child; or a person related by blood or marriage within the second degree);

5. Driving under the influence in violation of P.C. § 191.5, V.C. §§ 23152, 23153, 23550, or 23550.5; and

6. A “nonviolent drug possession offense” specified in existing P.C. § 1210(a) (unlawful use, possession for personal use, or transportation for personal use of any controlled substance defined in H&S §§ 11054–11058 (Schedules I through V), or the offense of being under the influence of a controlled substance in violation of H&S § 11550).

Existing P.C. § 1210.1 (Proposition 36, November 2000) sets forth detailed provisions for probation and drug treatment for these offenders.

Eligibility: A judge is required to offer a non-disqualified defendant voluntary participation in the pilot program as an alternative to jail or prison if:

1. The defendant’s crime was caused in whole or in part by the defendant’s substance abuse; and

2. The judge makes a determination based on the recommendations of the treatment providers who conducted an assessment of the defendant, on a finding by the county’s health and human services agency (HHSA) that the defendant’s participation in the program would be appropriate, and on a report prepared with input from interested parties, including the district attorney, the defense attorney, the probation department, HHSA, and any contracted drug treatment program provider.

Requirements for the Program: Numerous requirements are listed for such a program, including that the program facility must be licensed; cannot be a jail, prison, or correctional setting; must be secured but cannot include a “lockdown setting;” and must have visitation rights and telephone privileges.

Other Requirements:

The defendant is required be supervised by the probation department while participating in the program.

Defendants must plead guilty or no contest and be sentenced.

A defendant who is transferred out of residential treatment must complete the remainder of the sentence originally imposed, minus credits earned (per P.C. §§ 2900.5 and 4019).

The defendant is entitled to a dismissal of the conviction if the defendant successfully completes treatment. The court also has the discretion to dismiss any previous drug possession or drug use crimes on the defendant’s record.

Successful completion is determined only by treatment providers and not by the court, the district attorney, or the probation department. Successful completion does not require the defendant to complete the duration of the treatment originally ordered by the court.

This bill also amends P.C. § 11105(p)(2)(A) to add convictions for which relief has been granted pursuant to P.C. § 1203.44 to those that will not be disseminated by DOJ in specified circumstances.

Sunset Date: This new section will remain in effect only until July 1, 2029.

Note: Uncodified Section 6 of this bill provides that a special statute is necessary and that a general statute cannot be made applicable within the meaning of Section 16 of Article IV of the California Constitution because of the “unique circumstances that the Counties of Sacramento and Yolo have experienced with regard to difficulties in treating individuals who have been convicted of drug-motivated crimes as a result of their substance use disorders.”

Prisoners:

Pen. Code § 2068 (New; AB 943): State Prisoner Race and Ethnic Origin Statistics:

Requires the State Department of Corrections and Rehabilitation (CDCR) to collect voluntary self-identification information pertaining to race or ethnic origin from state prison inmates and parolees, for more than 35 races and ethnicities, and make the data available on its internet website.

Note: Uncodified Section One of the bill expresses the Legislature’s concern that Asians, Pacific Islanders, and Indigenous people are categorized as “other” in CDCR’s monthly population reports and that they need to be better served with culturally competent and sensitive in-prison and reentry programs.

Pen. Code § 2084.3 (New; AB 353): State Prisoners Right to Shower:

Requires that state prison inmates be permitted to shower at least every other day, unless a decision to prohibit showering is approved by the facility manager or designee.

Pen. Code § 2607 (New; SB 309): State and Local Prisoners Religious Freedoms:

Every person in custody in a state or local detention facility (e.g., jails and state prisons) has the right to religious accommodation with respect to grooming, religious clothing, and headwear in observance of a sincerely held religious belief, at all times and throughout the facility, except if there is a compelling governmental interest regarding security.

Religious accommodation may be denied only when doing so would be the least restrictive means of furthering this governmental interest.

These religious protections apply to all persons in custody, including those in the booking process, in temporary holding, awaiting trial, or sentenced.

Detention facilities, during booking or intake, are required to ask all persons if they practice a sincerely held religious belief that requires accommodation with respect to grooming, religious clothing, or religious headwear.

For such inmates, requires a facility to do the following:

1. Allow inmates to purchase facility-issued or department-approved religious clothing or headwear, or if not available, permit inmates to retain their own until the facility can make them available;

2. Not require hair or beards to be trimmed;

3. For searches, offer to have a person of the same gender as the inmate do the search and conduct the search out of the view of people with a different gender. After the search, return religious clothing and headwear to the inmate, unless there is a reason to confiscate the item(s) because of a security risk.

The State Department of Corrections and Rehabilitation (CDCR) is authorized to promulgate regulations to implement this section. An inmate who believes a request for religious accommodation has been denied has the right to seek relief pursuant to the federal Religious Land Use and Institutionalized Persons Act (42 U.S.C. 2000cc, in Chapter 21C).

Pen. Code § 3003 (Repealed & Added; SB 990; 2022 Legislation): Residency and Travel Requirements for Parolees:

The relocation and travel options has been expanded to counties other than the county of last legal residence for inmates released from state prison onto parole or postrelease community supervision (PRCS). The State Department of Corrections and Rehabilitation (CDCR) is required to release a parolee to, or permit a parolee to travel to, or permit a transfer of residency to, a county in which specified circumstances are present and verified, as long as the release, permission to travel, or residency transfer would not present a threat to public safety.

CDCR and probation departments are permitted (but not required) to apply these circumstances to offenders released on PRCS (postrelease community supervision). In determining an out-of-county commitment, priority is required to be given to the safety of victims, witnesses, and the community. It is required (in the case of a parolee) or permitted (in the case of an offender released on PRCS) that:

1. An inmate be released to the county where there is a verified postsecondary educational or vocational training program of the inmate’s choice, or a verified work offer, or where there is verified family of the inmate, outpatient treatment, or housing.

2. An offender be granted a permit to travel outside the county of commitment to a location where the offender has postsecondary educational or vocational training program activities, including classes, conferences, or extracurricular educational activities; an employment opportunity; or inpatient or outpatient treatment.

3. An approval to transfer residency and parole to another county be granted where the offender has a verified postsecondary educational or vocational training program, a verified work offer, or where the offender has family, inpatient or outpatient treatment, or housing.

Pen. Code § 3007.09 (New; AB 857): Written Informational Materials for Released Prison Inmates:

The State Department of Corrections and Rehabilitation (CDCR) is required to provide to every inmate, upon release from state prison, informational written materials about vocational rehabilitation services and independent living programs offered by the Department of Rehabilitation, along with an enrollment form for vocational rehabilitation services. Every released inmate is required be provided with these materials, whether or not CDCR believes the inmate is eligible for these services and programs.

Note: This bill also amends W&I § 19150 to add the following to the definition of “vocational rehabilitation services”: Services to formerly incarcerated persons with disabilities, designed to promote rehabilitation and reduce the likelihood of recidivism.

Pen. Code §§ 4027 (Amended) P.C. 4027.5 (New; SB 309): Local Prisoners Religious Freedoms:

P.C. § 4027 is amended to add a cross-reference to new P.C. § 2607 to provide that it is the Legislature’s intent that all prisoners confined in local detention facilities be afforded religious grooming, clothing, and headwear accommodations in accordance with new P.C. § 2607. (See above)

New P.C. § 4027.5 require sheriffs and jail administrators, by January 1, 2025, to develop and implement a religious grooming, clothing, and headwear policy in accordance with P.C. § 2607 for inmates in jails and holding facilities. This section now provides that these policies will apply to all inmates, whether or not charged with a crime or convicted.

Note: See P.C. § 2607, above, for a detailed description.

Pen. Code § 4033 (New; AB 1329): San Diego Sheriff and DMV Pilot Program for Identification or Driver’s License Renewal:

The San Diego County Sheriff’s Dep’t and the Dep’t of Motor Vehicles are authorized to implement a five-year pilot program to provide inmates in San Diego County detention facilities with an identification card or a renewed driver’s license. The San Diego County Sheriff’s Dep’t would facilitate the process between inmates and the agencies holding required documentation, such as birth certificates and social security numbers, and would provide notary services, assistance with obtaining necessary forms, and correspondence.

This program may be implemented “to the extent administratively feasible and within available resources.”

Pen. Code § 5000 (Amended; AB 1104): The Primary Objective of State Prison Incarceration:

The primary objective of adult incarceration in California Department of Corrections and Rehabilitation (CDCR) has been changed from “public safety” to the following: “(T)o facilitate the successful reintegration of the individuals in the department’s care back to their communities equipped with the tools to be drug-free, healthy, and employable members of society by providing education, treatment, and rehabilitative and restorative justice programs, all in a safe and human environment.”

Notes:

This bill also amends P.C. § 1170 to add that the purpose of incarceration is rehabilitation and successful community reintegration through education, treatment, and active participation in rehabilitative and restorative justice programs.

See also P.C. § 6024 (Amended; SB 519): The mission of the Board of State & Community Corrections is to promote legal and safe conditions for youth, inmates, and staff in local detention facilities.

Pen. Code § 5005 (Amended; SB 474): Prison Canteens:

It is now required, instead of permitted, that the State Department of Corrections and Rehabilitation (CDCR) maintain a canteen at every active prison to sell items such as toiletries, candy, notions, and sundries to inmates. Instead of permitting prices to be set so that canteens are self-supporting, it is now required that prices not exceed a 35-percent markup above the amount paid to vendors.

Notes:

This amendment has a sunset date of January 1, 2028, at which time this section will once again permit prices to be set so that canteens are self-supporting.

This bill shall be known as the “Basic Affordable Supplies for Incarcerated Californians Act,” or “BASIC Act.”

Pen. Code §§ 6048, 6048.5 (New; AB 268; Effective July 1, 2024): Standards for Mental Health Care in Local Correctional Facilities:

These new Penal Code sections, entitled “Standards for Mental Health Care in Local Correctional Facilities,” requires the “Board of State & Community Corrections” to develop and adopt regulations setting minimum standards of mental health care at local correctional facilities (e.g., jails) that meet or exceed the standards for health services in jails established by the National Commission on Correctional Health Care. It is required that these minimum standards include safety checks, correctional officers being certified in cardiopulmonary resuscitation (CPR), jail supervisors conducting random audits of safety checks by reviewing logs and video footage, in-service training of correctional officers for at least four hours annually on mental and behavioral health, mental health screenings at booking or intake conducted by a qualified mental health care professional if available, and jail staff reviews of medical and mental health histories of persons booked or transferred into jail.

Pen. Code § 6405 (New; AB 134): Prison Visitations:

For in-person state prison visits, this new section:

Permits a visitor with an infant or toddler to bring in items such as formula, breastmilk, a breast pump, baby food, clothing changes, blankets, pacifiers, etc.

For state prison family visits, a visitor is permitted to bring in items such as sheets, towels, bath mats, shower curtains, lubricant, and items for infants and toddlers.

For any in-person or family state prison visits, permits a visitor to bring in menstrual hygiene products.

A visiting minor is permitted to bring in at least two non-battery operated toys, two children’s books, and up to 10 pages of homework or coloring pages.

Visitors may request that the California Department of Corrections and Rehabilitation (CDCR” scan documents into “The Strategic Offender Management System” (SOMS), such as birth certificates, marriage licenses, medical notes, and parental consent forms for visiting minors, in order to streamline the process for future visits.

Prosecutors’ Duties:

Pen. Code § 11116.10 (Amended; SB 464): Notification to Victim or Witness About the Final Disposition of a Case:

The time the prosecuting attorney has to notify a victim or witness about the final disposition of a case at the trial court level has been shortened from 60 days to 30 days, when the victim or witness has requested such notification.

Note: Since a defendant has 60 days to appeal a judgment, this means that a prosecutor may have to report the disposition before it is known whether the defendant will file an appeal.

Pen. Code § 13300 (Amended) (Ch. 453; AB 709): Witness Lists and Exculpatory or Impeachment Evidence:

New subdivision (o) is added authorizing a public prosecutor to provide a public defender’s office, an alternate defender’s office, or a licensed attorney of record in a criminal case with a list containing the names of peace officers, defendants, and corresponding case numbers, in order to facilitate and expedite notifying defense attorneys about exculpatory or impeachment evidence involving peace officers who may testify in a particular case. (See Brady v. Maryland (1963) 373 U.S. 83, which requires the prosecution to disclose to the defense all evidence in its possession that is favorable to the defendant and material on the issue of guilt or punishment.)

The amended section also provides the following:

1. “Any disclosure made pursuant to this subdivision shall only be made upon agreement by the public defender’s office, alternate defender’s office, or the licensed attorney of record in a criminal case.”

2. “Any disclosure pursuant to this subdivision shall not constitute disclosure under any other law, nor shall any privilege or confidentiality be deemed waived by that disclosure.”

3. “This subdivision shall not be construed to otherwise limit any legal mandate to disclose evidence or information, including, but not limited to, the disclosures required under Chapter 10 (commencing with Section 1054) of Title 6 of Part 2 [Discovery].”

Racial Prejudice:

Pen. Code § 745 (Amended; AB 1118): Expansion of the Racial Prejudice Act:

The California Racial Justice Act is amended to permit a defendant to allege a violation of the Act on direct appeal from a conviction or sentence. As amended, the Act also permits a defendant to move to stay the appeal and request remand to the superior court to file a motion pursuant to this section.

Note: Subd. (a) of the Act provides that: “The state shall not seek or obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity, or national origin.”

The Act continues to provide that a defendant may file a motion pursuant to this section (such as during trial or before sentencing), or a petition for writ of habeas corpus under P.C. § 1473.7. However, habeas corpus is no longer the exclusive avenue for a post-conviction challenge.

A technical, non-substantive amendment in subdivision (e) to correct a cross-reference from subdivision (l) to subdivision (k).

Note: AB 256, adding the Racial Justice Act to the Penal Code, was passed in 2022 and added a phased-in timeline for retroactivity over four years, from January 2023 to January 2026. Beginning January 1, 2024, the Act applies to cases in which the defendant is currently serving a sentence in state prison, or in a county jail pursuant to P.C. § 1170(h), or is committed to the Division of Juvenile Justice for a juvenile disposition, regardless of when the judgment or disposition became final.

See also Pen. Code § 13510.6 (New; AB 443; Effective January 2, 2026): Determination of Biased Conduct by Law Enforcment Officers, under “Law Enforcement,” above.

Restraining Orders:

Pen. Code § 136.2 (Amended; AB 467): Modification of a Restraining Order:

Subdivision (i)(1) is amended to add that a sentencing court in the county in which a restraining order was issued may modify the order throughout its duration.

Note: Subdivision (i)(1) authorizes a court to issue a post-conviction restraining order for up to ten years to prohibit a defendant from contacting a victim in a domestic violence, sexual assault, or gang case. This amendment clarifies the issue of whether the court retains jurisdiction to modify a restraining order after the defendant finished serving a sentence or after supervision had ended, making it clear that a court may modify these restraining orders, even long after a sentence or supervision has ended.

Sexual Assault Cases:

Evid. Code § 1285 (New; AB 1253) Sexually Violent Predators:

A new hearsay exception for probable cause hearings in sexually violent predator cases (W&I § 6602) has been created to permit the admission of specified statements contained within an official written report or record of a law enforcement officer regarding a sex offense that resulted in a conviction. Under this exception, the statements from a victim of a sex offense, an eyewitness to the sex offense, and a sexual assault medical examiner who examined the victim, are admissible in a probable cause hearing.

Note: Live testimony is still required at trial. However, this bill abrogates the decision in Walker v. Superior Court (2021) 12 Cal.5th 177, which held that W&I § 6602 (probable cause sexually violent predator hearings) does not create an exception that allows hearsay regarding non-predicate offenses to be introduced through a psychologist’s evaluation report.

Superior Court:

Gov’t. Code § 69894 (New; AB 1576; 2022 Legislation; Effective July 1, 2024); and (Further Amended; SB 133; Effective June 30, 2023): Lactation Rooms:

Beginning July 1, 2026, a superior court is required to provide a lactation room for “court users” in an area that is accessible to the public using the court facility, in any courthouse that has a lactation room for court employees. The lactation room is prohibited from being a bathroom and requires that it be “shielded from view and free from intrusion while it is being used by a court user to express milk.”

Notes:

No definition of “court user” is provided, but is likely to include crime victims, witnesses, defendants, attorneys, and court observers. It is unknown if it is to include the homeless, encamped outside the courthouse.

In 2022, AB 1576 created this new section with an operative date of July 1, 2024. In 2023, SB 133 pushed back the operative date by two years, to July 1, 2026.

Vehicle Code Violations:

Veh. Code § 2806.5 (New; AB 2773): Requirement That a Peace Officer State the Reason for a Traffic Stop Before Engaging in Any Questioning Related to a Criminal Investigation:

The officer is also required to document the reason for the stop on any citation or police report resulting from the stop.

Veh. Code §§ 4000 & 5204 (Amended; AB 256; Effective July 1, 2024): Registration and License Plate Tab Violations:

Beginning July 1, 2024, V.C. §§ 4000 and 5204 are amended to prohibit a vehicle registration violation (V.C. § 4000) or a license plate tab violation (V.C. § 5204) from being the “sole basis for any enforcement action before the second month after the month” the vehicle’s registration expires. A registration or license plate tab violation to be enforced before the second month if the vehicle is stopped for any other Vehicle Code violation.

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March 12, 2023

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SPECIAL UPDATE (Part I) The Fourth Amendment / Search and Seizure Annual Update (Table of Contents Only)

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A Pro Subscribers Exclusive: Your Essential Guide to the Fourth Amendment and Search and Seizure.

This annual compendium of Fourth Amendment and search and seizure issues, compiled by retired Deputy District Attorney Robert Phillips, includes concise but detailed discussion of the most important guidelines you need on these issues. Whether you are an officer, investigator, attorney preparing for a motion, or a judge deciding a Fourth Amendment issue, you will find this resource invaluable. According to retired Superior Court Commissioner Stephany Joy, this was among the “most referenced resource” used by her colleague judges on the Sonoma County criminal bench.

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January 06, 2023

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SPECIAL UPDATE New and Amended Statutes Edition (Effective January 1, 2023)

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New and Amended Statutes Edition (Effective January 1, 2023)

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July 28, 2022

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SPECIAL UPDATE Shooting the Messenger: First Amendment Freedom of Speech and the Public Employee

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By Robert Phillips, Deputy District Attorney (Ret).

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Shooting the Messenger: First Amendment Freedom of Speech and the Public Employee

February, 2022

The First Amendment to the United States Constitution provides Americans with five basic freedoms: Freedom of speech, press, petition, assembly, and religion. While all five are certainly important, the freedom of speech—sometimes referred to as the “freedom of expression,” and often recognized as the cornerstone of America’s democracy—is arguably the most cherished of the five.

Then along came “social media,” available to anyone with access to a computer and coming in a wide variety of forms; i.e. Facebook, Snapchat, Twitter, Instagram, and many others. The advent of social media suddenly empowered the quietest and most introverted of citizens—to whom no one ever before paid attention—with the ability to broadcast his or her views—unpopular or not; truthful or not—around the world with the stroke of a computer key. And along with this new-found uncontrolled power in the exercise of our freedom of expression—sometimes used without giving the words we use or the ideas we express a lot of thought—came the propensity for getting ourselves in trouble.

But we’re getting ahead of ourselves. The purpose of this article is to discuss the sometimes contradictory, and most often confusing, case authority that has sought a balance between a public employee’s (including a prosecutor’s and a cop’s) First Amendment inherent freedom of expression, with his or her employer’s right to impose restrictions on that employee’s rights, at least when the challenged speech affects the employer’s smooth and efficient operation of his or her office.

One of the first cases involving a prosecutor getting herself into trouble by exercising what she believed at the time to be her constitutionally protected freedom of speech rights is the United States Supreme Court decision of Connick v. Meyers.[1]

Connick v. Meyers:

In Connick, Plaintiff/Respondent Sheila Myers was employed by the New Orleans Parish District Attorney’s Office as an Assistant District Attorney. Her job was to prosecute criminal cases; a task she had competently performed for some five and a half years. In 1980, Myers was informed that she was scheduled to be transferred to prosecute cases in a different section of the criminal court. She vehemently opposed the proposed transfer, believing that such a move would create a conflict for her in that she was involved in a counseling program for convicted defendants released on probation into the section of the criminal court to which she was to be transferred.[2]

Myers’ pleas—including those made directly to the District Attorney himself; Defendant/Petitioner Harry Connick—all fell on deaf ears. Not one to just rollover, Myers decided to document her position by preparing a questionnaire seeking out possible issues within the office. She hoped to submit her questionnaire to each of the office’s fifteen assistant district attorneys.

Among the fourteen questions on Myer’s questionnaire were inquiries as to the office’s transfer policy, office morale, the need for a grievance committee, the level of confidence in the office’s supervisors including whether the employees “had confidence in and would rely on the word” of various superiors in the office, and whether the questioned employee felt pressure to work on political campaigns.[3]

When District Attorney Connick got word of the questionnaire, described to him as a problem that was generating a “mini-insurrection” within the office, he immediately fired Myers, telling her that the cause of her termination was her refusal to accept the transfer.[4] Myers sued in federal court pursuant to 42 U.S.C. § 1983, attempting to get her job back along with compensatory and punitive damages.

The federal district court, finding that Myer’s questionnaire was the real reason for her termination as opposed to her refusal to be transferred, reversed, awarding her back pay, damages, and attorney’s fees.[5] The Fifth Circuit Court of Appeal affirmed.[6] The United States Supreme Court granted certiorari.[7]

The United States Supreme Court, in a split 5-to-4 decision, reversed. Citing among others of the High Court’s relevant cases[8] the 1968 landmark decision of Pickering v. Board of Education,[9] the Supreme Court held that Myers’ firing did not violate her First Amendment rights. In so finding, the Court noted that it is an issue of balancing the First Amendment rights implicated by Myers’ questionnaire with the District Attorney’s right to prevent any disruption in the smooth operation of his office. The Court here ruled in favor of the District Attorney, overruling the lower courts’ (trial and appellate) rulings to the contrary. How the Court reached this conclusion is instructive.

Using Pickering as its primary authority, the Court noted that in deciding an issue such as this one, a court is required “to seek a balance between [1] the interests of the [employee], as a citizen, in commenting upon matters of public concern, and [2] the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”[10] In reversing the lower courts’ rulings in this case, the Supreme Court held that the rule of Pickering had been “misapplied” in this case. “(C)onsequently,” it was noted in the majority opinion that both the district (trial) court and the Fifth Circuit Court of Appeal “erred in striking the balance for respondent” Myers.[11]

The Supreme Court held here that it was error in the first instance for the District Court to rule that the questionnaire itself concerned “matters of public importance and concern.”[12] To the contrary, the Court found that “Myers’ questionnaire, although not ‘wholly without First Amendment protection,’ primarily concerned only internal office matters and ‘that such speech is not a matter of “public concern,” as this term is defined in Pickering.’”[13]

In so noting, the Court emphasized that Pickering points out that public employees do not forfeit their First Amendment constitutional right to comment on matters of public concern merely by the fact of their employment. However, when the employee’s comments are not matters of public concern (or maybe only of limited concern), and instead affect only (or primarily) the efficient operation of the public office with whom the person is employed, then the First Amendment does not prevent that employee from being penalized by her employer, whether fairly or not, as Sheila Meyers was in this case.[14]

In its ruling, the Court describes the history behind the development of the rule in Pickering,” culminating in the Pickering decision itself where it was held that a teacher could not constitutionally be fired for expressing his concerns about the internal workings of his school’s Board of Education when those concerns dealt with matters of public interest. In Pickering, the “matters of public concern related to the allocation of moneys obtained from taxpayers through various public bond issues. Per the Pickering Court, the issues raised by teacher Marvin Pickering in a letter he sent to a newspaper editor concerned “a question (about which) free and open debate is vital to informed decision-making by the electorate.”[15]

The Court here, in Connick v. Myers, further lists its various rulings subsequent to the Pickering decision, all dealing with the First Amendment rights of school teachers to comment on issues of public concern, whether done so publicly or privately.[16] In contrast, Myers’ questionnaire was held to be of limited public concern, dealing primarily with in-office issues.

It must be noted, however, that the ruling in Connick does not mean that the questions raised in Myers’ questionnaire did not, in some ways, implicate the First Amendment. Question #11, for instance, asking the individual assistant district attorneys whether they “ever feel pressured to work in political campaigns on behalf of office supported candidates,” was noted to deal with an issue of some public concern.[17] However, contrary to the district court’s ruling, this fact alone did not shift the burden of proof over to the District Attorney to justify his decision to fire Myers. But rather, the fact that one or more of the questions in Myers’ questionnaire may have been of some public concern was merely a single factor to consider when balancing it with the District Attorney’s right to subsequently dismiss Myers in the interest of the office’s smooth operation.[18]

On the issue of whether the law’s balancing requirement justified Myers’ dismissal from the office despite some evidence of a First Amendment violation, the Court agree with the district court that there was insufficient evidence here that the questionnaire impeded Myers’ ability to perform her responsibilities as an assistant district attorney. What the Court did find, however, was that Myers’ questionnaire was an act of insubordination which interfered with the District Attorney’s Office’s working relationships. “When close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer’s judgment is appropriate.”[19]

The Court further failed to “see the necessity for an employer to allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action.”[20] In so ruling, the Court specifically noted that question 10—asking whether or not the assistant district attorneys had confidence in and relied on the word of five named supervisors—constitutes “a statement that carries the clear potential for undermining office relations.”[21]

In an interesting summation of Sheila Myers’ dilemma, the Court noted further that once her questionnaire was determined to be a matter of only limited public concern, she was basically left with no recourse. Whether or not she was unfairly dismissed from her position as a prosecutor is nothing the federal courts can resolve for her. Per the Court: “(O)rdinary dismissals from government service which violate no fixed tenure or applicable statute or regulation are not subject to judicial review even if the reasons for the dismissal are alleged to be mistaken or unreasonable.”[22] In discussing these limitations on this issue, the Court noted: “We hold only that when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior.”[23]

Highlighting the fact that all this balancing with its legal mumbo jumbo is subject to honest and educated differences of opinion, a four-justice dissent reached exactly the opposite conclusion. Specifically, the dissent summarized it analysis—discussed in detail over some thirteen pages of more legal mumbo jumbo—by simply noting that in the minority justices’ opinion, Sheila Myer’s dismissal was illegal under the First Amendment “(b)ecause the questionnaire addressed such matters (of public concern) and its distribution did not adversely affect the operations of the District Attorney's Office or interfere with Myers’ working relationship with her fellow employees.”[24]

Rather than taking the time and effort to analyze the dissenting opinion, which, by itself, is of limited value given that it is just that; a “dissenting opinion,” we shall move on to the next important United States Supreme Court case dealing with a prosecutor’s exercise of his First Amendment freedom of expression, albeit in a different context, getting that prosecutor into trouble with his bosses.

Garcetti v. Ceballos:

In Garcetti v. Ceballos,[25] Plaintiff/Respondent Richard Ceballos was a deputy district attorney for the County of Los Angeles, and had been since 1989. Defendant/Petitioner Gil Garcetti was the elected district attorney at the time. In February, 2000, a defense attorney approached DDA Ceballos about a pending case. Ceballos was a calendar deputy in his office’s Pomona branch where he exercised certain supervisory responsibilities over other lawyers. For defense attorneys to informally approach Ceballos, as the calendar deputy, about the underlying issues in their case was not unusual.[26] This is all to say that this wasn’t Ceballos’ first rodeo.

The defense attorney showed Ceballos where there were certain inaccuracies in an affidavit used to obtain a critical search warrant. Although already having filed a motion to traverse the warrant, the attorney hoped to handle matters informally by warning Ceballos ahead of time that there were problems with the warrant officer-affiant’s credibility.[27]

Taking seriously what he saw to be his professional and ethical obligations as a prosecutor, DDA Ceballos took the time to examine the warrant affidavit and even visit the location described therein, concluding that there were in fact some serious factual misrepresentations in the warrant. Discussing the apparent problems with the warrant affiant over the telephone did not alleviate Ceballos’ concerns. He therefore discussed the issue with his supervisors. He also wrote up a trial memorandum describing the problems as he saw them, and recommended, as a result, dismissal of the entire case.[28]

A meeting was subsequently held between Ceballos, his supervisors, the warrant affiant, and other supervisory employees from the affiant’s law enforcement agency. No resolution was reached, however, with the affiant’s lieutenant, in a heated exchange, “sharply criticizing Ceballos for his handling of the case.”[29] Compounding Ceballos’s minority status on this issue was the fact that his own supervisors overruled him, declining to approve the dismissal of the case. And then, adding insult to injury, at the subsequent in-court motion to traverse the warrant (at which Ceballos put in the embarrassing position of being called as a defense witness), the trial court declined to grant the defense motion or to otherwise suppress the evidence.[30] (It is unknown what the ultimate outcome of this criminal case might have been.)

Following this disagreement, DDA Ceballos was reassigned from his calendar deputy position to being a run-of-the-mill trial deputy, and was moved to another courthouse. He also alleged that he was denied a promotion. After an internal employment grievance was denied, it being found that he was not the victim of any retaliation, Ceballos filed a federal lawsuit pursuant to 42 U.S.C. § 1983, alleging that his First and Fourteenth Amendment rights were violated. In his lawsuit, Ceballos alleged that the Los Angeles District Attorney’s Office retaliated against him for seeking the dismissal of the criminal case discussed above. Petitioners (i.e., the office) denied any retaliation, claiming that everything Ceballos complained about was explained by “legitimate reasons such as staffing needs.”[31]

Using the Pickering balancing test, the Federal District Court granted the District Attorney’s motion for summary judgment, ruling that Ceballos wrote his memo pursuant to his employment duties and that what he did not involve a public interest. The court ruled that Ceballos was therefore not entitled to First Amendment protections from being disciplined for what he had written in his memo or how he had handled the case in issue.[32]

On appeal, the Ninth Circuit Court of Appeal reversed,[33] holding, in a nutshell, that “Ceballos’s allegations of wrongdoing in the memorandum constitute protected speech under the First Amendment.”[34] In other words, the Ninth Circuit determined that contrary to the trial court’s findings, Ceballos’ handling of the case at issue, being (in the Court’s opinion) a matter of public concern, was protected by the First Amendment.

On certiorari, the United States Supreme Court reversed in another five-to-four decision, criticizing the Ninth Circuit for failing to “consider whether the speech was made in Ceballos’ capacity as a citizen,” The Court noted that instead, the Ninth Circuit “relied on (erroneous) Circuit precedent rejecting the idea that ‘a public employee’s speech is deprived of First Amendment protection whenever those views are expressed, to government workers or others, pursuant to an employment responsibility.’”[35]

In so ruling, the Court rehashed the judicial history leading up to the Pickering balancing test, having developed over the years, case by case, from “the (originally) unchallenged dogma . . . that a public employee had no right to object to conditions placed upon the terms of employment,” to the current rule reflecting the fact that the First Amendment protects even “a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern.”[36]

In perhaps a serious understatement, the Court notes that conducting the necessary inquiries under Pickering “sometimes has proved difficult.” This, the Court says, is a “necessary product of ‘the enormous variety of fact situations in which critical statements by . . . public employees may be thought by their superiors . . . to furnish grounds for dismissal.’”[37] The Court, however, makes another stab at it, hoping to simplify the necessary thought process to the degree possible.

“Pickering and the cases decided in its wake identify two inquiries to guide interpretation of the constitutional protections accorded to public employee speech. The first requires determining whether the employee spoke as a citizen on a matter of public concern. (Citation omitted.) If the answer is no, the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech. (Citation omitted.) If the answer is yes, then the possibility of a First Amendment claim arises. The question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public. (Citation omitted.) This consideration reflects the importance of the relationship between the speaker's expressions and employment. A government entity has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity's operations.”[38]

As with any citizen who enters government service, Ceballos was bound to accept certain limitations on his freedoms; particularly his First Amendment freedom of speech. Adding to Ceballos’ dilemma is the fact that government employers, like private employers, need to be able to exercise some degree of control over their employees’ words and actions if they are to provide efficient public services. At the same time it is recognized, however, that “a citizen who works for the government is nonetheless a citizen. . . . So long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.”[39] Balancing these often conflicting interests is what Pickering and its prodigy has attempted to accomplish.

With these principles in mind, as vague and flexible as they may be, DDA Ceballos’ situation may be considered.

The Court first noted that Respondent Ceballos believed that there were some serious legal issues in a particular criminal case, and expressed his concerns orally to his supervisors as well as in a written internal office memo. The Court found that the fact that Ceballos did not publicize his concerns beyond the office was not dispositive. “Employees in some cases may receive First Amendment protection for expressions made at work.”[40]

Also not dispositive was the fact that the memo concerned the subject matter of Ceballos’ employment. As noted by the Court; “(t)he First Amendment protects some expressions related to the speaker’s job.”[41]

What the Court found to be dispositive in this case was the context in which Ceballos’ memo and verbal concerns were expressed; most importantly, “pursuant to his duties as a calendar deputy.” With this factor in mind, the Court held that if there is a rule to be discerned from this case, it is this: “(W)hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”[42]

In Ceballos’ case, it was noted that he was not acting as a private citizen when he went about his daily professional activities as a calendar deputy district attorney, but rather as a paid government employee. Further, he was not speaking as a private citizen in writing the memo at issue here, addressing what he, in his professional capacity, believed was the proper disposition of the criminal case at issue. Under these circumstances, his supervisors were not prohibited by the Constitution from evaluating his performance nor correspondingly determining his office assignments and his pay grade. Ceballos’ First Amendment rights, therefore, were not violated by the District Attorney taking what was apparently considered remedial; i.e., reassigning him elsewhere in the office and denying him a promotion.[43]

Again, as with Connick v. Meyers, four justices dissented—this time in three separate opinions—while making contrary arguments that when read in a vacuum, make perfect sense.[44] But again, being dissenting opinions, we won’t expend the time and space necessary to properly and thoroughly discuss them here. Instead we’ll move along to one more case involving the plight of a prosecutor when accused by his bosses of disrupting the smooth operation of his office.

Eng v. Cooley:

The Los Angeles District Attorney’s Office was again the subject of another alleged employee-retaliation case when Deputy District Attorney David Eng, taking an unpopular position as a member of an office task force and thus incurring the wrath of the then District Attorney, Steve Cooley, was subsequently disciplined and later fired. The facts and circumstances of this case (taken from the perspective of the plaintiff, David Eng, as an appellate court must do in the context of an interlocutory appeal of a qualified immunity decision[45]) were subsequently reported in the Ninth Circuit Court of Appeals’ decision of Eng v. Cooley.[46]

In his quest to become Los Angeles’ District Attorney, one of Steve Cooley’s campaign promises made to the public was to investigate allegations of fraud and environmental crimes related to the planning and construction of the Los Angeles Unified School District's Belmont Learning Complex. Upon election, Cooley formed a task force, comprised of high-ranking deputies from within the office, to do just that. What become known as the Belmont Task Force was headed by Special Assistant Anthony Patchett. Eng—a senior deputy district attorney—was appointed to be a member of the Task Force. Patchett—perhaps unwisely—announced before the Task Force even got under way that he would deliver “slam dunk” indictments of prominent individuals involved with the Belmont project.[47]

Well, things did not turn out as Patchett had hoped. Much to the contrary, the Task Force concluded after a seven-month investigation that the building site for the Belmont Project was, and always had been, environmentally safe, and that no indictments should issue. When Eng briefed Patchett on the Task Force’s conclusions, the latter flipped out, telling Eng that if the Task Force did not say what he believed Cooley wanted to hear, Eng himself would suffer “sever [personal] consequence.”

Eng did not bow to the pressure, however, declining to tailor the Task Force’s report to accommodate Patchett’s own political agenda. Instead, he reported the Task Force’s conclusions to Cooley as originally written. Patchett, in response, made his own presentation to Cooley, which included proposed indictments against several prominent individuals. Cooley’s executive staff chose Eng’s recommendations over Patchett’s, making for one very unhappy Special Assistant.[48]

Meanwhile, The Los Angeles Times reported in a published article that the Los Angeles Unified School District’s lease-purchase agreements (i.e., “Certificates of Participation”) used to finance the Belmont project had been canceled and that with the reinitiation of the project, new financing, at substantially higher interest rates, would have to be found. According to Eng, the original agreements had been canceled because Patchett had improperly leaked to the IRS an allegation that the School District had committed fraud in purchasing the Belmont property; an allegation later determined by the Task Force to be false. This, apparently, was all information that Cooley was not happy to hear. Reflecting who’s side of this argument Cooley was on, it was noted that during discussions of the Belmont financing issue between Cooley, Patchett and Eng, when Eng purportedly argued at the meeting that the Certificates of Participation used to finance the purchase of the Belmont property were legal and that Patchett’s reporting otherwise to the IRS was wrong and should be rectified, Cooley allegedly became angry at Eng, telling him to “shut up.”[49]

In what eventually developed into a demonstration of why it’s not wise to violate the old adage, “don’t shoot the messenger,” Cooley and members of his staff (including Patchett, co-defendants Steven Sowders and John Zajeck, who replaced Patchett as head of the Task Force, and others) met frequently to discuss ways of forcing David Eng out of the District Attorney’s Office.[50]

The case decision expends several pages discussing various acts of retribution instigated by Cooley’s lieutenants in an unsuccessful attempt to convince Eng to resign from the office. Those efforts included accusations of sexual harassment (the alleged victim of which denied ever occurred), a transfer to a branch office’s juvenile division (a position typically occupied by new-hires in the office), criminal prosecution for misusing the office’s computers (charges that were dismissed due to the sole witness refusing to testify), and various suspensions (with and without pay) that were eventually rescinded by the County Civil Service Commission.[51]

The Los Angeles Times got involved again, publishing an article entitled “D.A. Accused of Payback Prosecution.” In this article (which included an interview with both Eng and an attorney hired by Eng; Mark Geragos), it was brought to the public’s attention that Eng had been prosecuted (as noted above) in alleged retaliation for refusing to file criminal charges against individuals involved in the Belmont School project, and that he was systematically being punished for having complained about Pratchett’s leaking of information to the IRS.[52]

The L.A. Times article only served to give new life to the DA’s attacks on Eng. Shortly after its publication, co-defendant Steven Sowders (along with co-defendant Curt Livesay) blatantly threatened both Eng and Geragos that the office would “come up with” additional allegations against Eng if he didn’t just give up and leave. When Eng failed to succumb to the pressure, Sowders made good on his threats, serving him with yet another formal “Notice of Intent to Suspend without Pay,” rehashing some of the same allegations as alleged before while adding additional accusations that had been dug up from incidents that had allegedly occurred years before.[53]

Finally, when Eng ignored a suggestion that all would be forgiven if he would simply agree to publish a retraction of the allegations made in the L.A. Times article, disavowing similar accusations Geragos’ made that were reported by the Times, and publicly apologizing to Cooley,”[54] all the monkeying around with Eng’s career was finally ended with Eng being terminated outright. This lawsuit, filed by Eng in the Federal District Court, followed.

In his lawsuit, filed pursuant to 42 U.S.C. § 1983, Eng alleged that the DA’s Office illegally retaliated against him for exercising his right to publicly comment on both the Belmont School Project and Patchett’s leaks to the IRS, and to speak through his attorney to the news media, such retaliation alleged to be in violation of the First (freedom of speech) and Fourteenth (due process) Amendments.[55]

The District (trial) Court granted the defendants’ (i.e., Cooley and his subordinates) motion for summary judgment with respect to the issues related to Eng’s recommendation to District Attorney Cooley that no criminal charges be filed against individuals associated with the Belmont project. The District Court’s reasoning was that “Eng was merely fulfilling his job duties when he gave his Task Force recommendation,” that such recommendations did not involve a matter of “public concern,” and that therefore those statements were “not protected under the First Amendment.”[56] This ruling, appearing to be consistent with the rules set out above, were not challenged on appeal. Internal disciplinary measures taken against Eng for making these recommendations, as unfair as they may appear, is also consistent with the rule as noted earlier in Connick v. Myers that as an issue that fails to qualify as a “matter of public concern,” and merely one of the office’s imposition of internal sanctions, it is not something that can be heard in a federal court.[57]

As for Eng’s other allegations relative to his publicized comments, whether made by himself or through Mark Geragos as his attorney, the District Court determined that Eng had legitimate First Amendment claims—they involving matters of public concern—that had to be decided by a jury.[58] The District Attorney appealed.

The Ninth Circuit Court of Appeal unanimously affirmed. In so doing, the Court provided us with a more detailed, somewhat more understandable, and certainly more organized, discussion of the Pickering elements.

First, however, the Court noted that when alleging a violation of his own First Amendment rights, Eng was allowed to include the retribution he may have suffered from statements made by Mark Geragos; his attorney. Per the Court: “Because Geragos spoke on Eng’s behalf in his capacity as Eng’s lawyer, his words were Eng’s words as far as the First Amendment is concerned.”[59] Eng himself therefore had a personal First Amendment interest in Geragos’ speech.

That issue resolved, the Court moved onto the Pickering elements as they relate to Eng’s lawsuit, and whether the District Court correctly decided that Eng did in fact have a viable claim, in effect, that his First Amendment rights had been violated.

Quoting Pickering, the Court first noted that “(i)t is well settled that the state may not abuse its position as employer to stifle ‘the First Amendment rights [its employees] would otherwise enjoy as citizens to comment on matters of public interest.’”[60] The problem, as noted by the Court, is that the validity of such a claim is dependent upon a “balanc(ing) between the interests of the [public employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”[61]

Considering the relevant factors as described in Pickering, and taking into account the cases that have wallowed in this quagmire since, while also noting that the rules have “dramatically, if sometimes inconsistently” evolved, the Court was able to summarize Pickering’s “tangled history”[62] into five necessary considerations:

(1) Whether the plaintiff spoke on a matter of public concern;

(2) Whether the plaintiff spoke as a private citizen or public employee;

(3) Whether the plaintiff’s protected speech was a substantial or motivating factor in the adverse employment action;

(4) Whether the state had an adequate justification for treating the employee differently from other members of the general public; and

(5) Whether the state would have taken the adverse employment action even absent the protected speech.[63]

Of particular interest to the Court here was whether the issues raised and commented on publicly by Eng were “matters of public concern.” Noting that we have not yet attempted to define in this article what is meant by the phrase, it’s worth taking a minute to discuss the Ninth Circuit’s explanation of what it means.

First, it is noted that as a “pure question of law,” “the plaintiff bears the burden of showing that the speech addressed (is) of public concern.”[64] As for what the phrase really means, the Court in previous decisions has held that “(s)peech involves a matter of public concern when it can fairly be considered to relate to ‘any matter of political, social, or other concern to the community.’ . . . ‘Whether an employee’s speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.’”[65] If it is determined that “the speech in question does not address a matter of public concern, then the speech is unprotected, and qualified immunity should be granted” in favor of the civil defendant.[66]

In this case, the Court necessarily found against the District Attorney on this issue. Of primary importance is the fact that neither Cooley nor any of the other civil defendants ever argued that Eng’s statements were anything other than matters of public concern. And even if they had, the Court held that “there is little doubt that Eng’s speech did (in fact) address matters of public concern.” “‘[C]ommunication[s] on matters relating to the functioning of government’ . . . are matters of inherent public concern.’”[67]

In so ruling, the Court further noted that “(t)he leaking of information (whether true or false) about the School District’s lease-purchase agreements to the IRS was therefore a matter of public concern insofar as it led to the need for additional, more expensive financing for the public school complex.” Further; “(s)peech that is ‘relevan[t] to the public’s evaluation of the performance of governmental agencies’ also addresses matters of public concern.”[68]

On the issue of whether Eng made the statements in issue as a private citizen and not as a public employee (a mixed question of fact and law), this is again something on which the plaintiff bears the burden of proof. In trying to decipher what this really means, the Court noted that; “(s)tatements are made in the speaker’s capacity as citizen if the speaker ‘had no official duty’ to make the questioned statements, or if the speech was not the product of ‘performing the tasks the employee was paid to perform.’”[69] The plaintiff will lose on this issue only if it is shown that he or she had an official duty to utter the speech at issue.[70]

Despite these impediments, the Court found that Eng’s statements were made as a private citizen, rejecting the defendants’ “great effort” to convince the Court that, at the very least, Eng’s public statements about the IRS leak were “inextricably related to his work.” Again noting that a court at this stage of the proceedings must assume the truth of a plaintiff’s factual allegations, the Court determined here that “Eng’s version of the facts plausibly indicates he had no official duty to complain about any leak to the IRS or to authorize Geragos to speak to the press about the retaliation being taken against him.” As such, the Court determined that Eng’s public comments about these issues were made as a private citizen, satisfying this necessary prerequisite to a finding that, if proven at trial, his First Amendment free speech rights were violated.[71]

The third step (i.e., whether the plaintiff’s protected speech was a substantial or motivating factor in the adverse employment action), being a question of fact, and in light of the requirement that the plaintiff’s allegations are presumed to be truthful at this stage of the proceedings (i.e., pre-trial), the Court found that Eng had sufficiently alleged a First Amendment violation of his rights necessary to prevail on this issue.[72]

More specifically, the Court noted that:

“Eng’s account of the meeting with (co-defendants) Livesay and Sowders, for example, plainly undermines the Defendants’ contrary assertion that the systematic investigations, prosecution, suspensions, and demotion of Eng were not motivated by his speech. Eng’s further accounts of Cooley’s meetings with his staff to discuss ‘a method of forcing David Eng out of the District Attorney’s Office,’ and Sowders’s threats to both Eng and Geragos following publication of the Los Angeles Times article, all also indicate that Eng’s speech was a ‘substantial or motivating’ factor in the adverse employment action.”[73]

As to whether the District Attorney’s office had adequate justification for treating Eng differently from other members of the general public, the fourth necessary prerequisite to a constitutional violation, the Court first noted that the burden of proof had shifted to the civil defendants to show that under the traditional Pickering’s balancing test, the District Attorney had legitimate administrative interests allowing him to do so that outweighed Eng’s First Amendment rights.[74] As a rule, absent a civil defendant’s ability to prove that “the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public,” the Court must find for the plaintiff.[75]

In this case, it was initially noted that defendants did not argue that the Pickering balancing test leaned in their favor. As such, they forfeited this issue.[76]

But even if contested, the Court found that Eng’s allegations clearly showed that the defendants would have lost this issue in that “the District Attorney lacked adequate justification for treating Eng differently from other members of the public.” In balancing the interests, the Court found that the defendant’s overt acts of investigating, suspending, prosecuting, and transferring Eng in retaliation for his speech was not a necessary prerequisite to the District Attorney’s Office’s ability to operate efficiently and effectively. As such, the Court found that “the full range of adverse employment action appears to have been a politically-motivated effort to silence Eng, who stood to embarrass Cooley by undermining a central plank in his campaign platform.” The Court therefore specifically found that Cooley and his co-defendants failed to meet their Pickering balancing obligations necessary for a favorable court decision.[77]

Finally, under the fifth element as listed above, having failed the Pickering balancing test, it became the District Attorney’s obligation to show that he would have imposed the same disciplinary measures upon Eng despite the fact that Eng’s First Amendment freedom of speech rights were violated. “In other words, (the District Attorney) may avoid liability by showing that the employee’s protected speech was not a but-for cause of the adverse employment action.”[78]

This issue being a question of fact, the Court held that they were again bound by the rule that at this stage of the proceedings, they were required to assume that the plaintiff Eng would be able to prove the facts as he described them, assuming the truth of the plaintiff’s allegations.[79]

Rather than challenging the Pickering balancing issue, the defendants put all their cards into this basket. As noted by the Court: “Defendants argue that they ‘would have reached the same [adverse employment] decision even in the absence of [Eng]’s protected conduct.’”[80] Defendants based this argument on the fact that Eng was the subject of other internal investigations, including a criminal prosecution, separate from his tendency to talk to the news media and embarrass his bosses.

The Court rejected this argument, noting that Eng had also alleged (allegations that are presumed to be true) that all these investigations, suspensions, and, as noted by the Court, “apparently baseless charges,” were themselves motivated by his exercise of his First Amendment rights.[81]

Defendants further noted that Eng had scored low on a promotion review, arguably undermining his contention that his failure to get promoted was due to his tendency to speak out publicly. Eng’s response, however, explained that his low score was a result of the subsequently disproven accusations of sexual harassment and misuse of office computers, these accusations themselves having been motivated by his exercise of his First Amendment rights.

As a result, the Court found that the defendants had failed to meet their burden of showing that Eng’s constitutionally protected speech was not a “but-for” cause of the disciplinary actions taken against him.[82]

After findings that both Eng’s and Mark Geragos’ constitutional rights were clearly established by prior case law, negating the defendants’ hopes for a ruling of qualified immunity from any civil liability,[83] the Ninth Circuit affirmed the trial court’s rulings in this case. The United State Supreme Court is in apparent agreement, having denied certiorari.[84]

Moser v. City of Las Vegas:

Before we end our discussions of this very important topic, one more case warrants mentioning. Although not involving a prosecutor’s office, it is important because it interjects the issue into this discussion of whether it is wise for a public employee (a police officer, in this case) to use social media when feeling the itch to exercise his or her First Amendment rights, and, as such, how the public employee’s freedom of speech rights might thereby be affected. Again out of the Ninth Circuit, the case is Moser v. City of Las Vegas.[85]

Officer Charles Moser was a former Navy Seal and current Las Vegas Metropolitan Police Department officer. Beginning in 2006, Officer Moser was a SWAT team sniper and assistant team leader. On December 17, 2015, Officer Moser made the unfortunate (as it turned out) decision to post on his Facebook account a comment about a shooting involving the wounding of a fellow Metro officer.[86]

Officer Moser’s Facebook comment read as follows: “Thanks to a Former Action Guy (FAG) and his team we caught that asshole. . . It’s a shame he didn't have a few holes in him. . .” (The “FAG” comment, as an abbreviation for the in-house term, “Former Action Guy,” was not used in a derogatory sense, and was not an issue in this case.)

Officer Moser posted this comment while off duty, leaving it up for about two months before deleting it of his own initiative. However, someone in the meantime had already read it and anonymously filed a complaint with Metro’s Internal Affairs Department, prompting an internal investigation. Admitting to Internal Affairs the inappropriateness of his comment, Officer Moser explained that he only intended to express his frustration with the fact that the suspect had “basically ambushed one of our officers” and that “the officer didn’t have a chance to defendant himself” by shooting back. Despite his claim of an innocent intent, Officer Moser was transferred out of SWAT and put back on patrol; an action that also resulted in a pay cut.[87]

His supervisors’ concern was that his comment showed that he had become “a little callous to killing.” It was also noted that the department’s snipers “are held to a higher standard,” being faced with difficult and stressful situations, and that his comment could possibly be used against him as in-court impeachment evidence should he ever have to use deadly force in the future. It was therefore believed to be necessary to relieve him of his SWAT responsibilities.[88]

Officer Moser filed a grievance with the city’s Labor Management Board, which was denied. He therefore filed a civil action in federal court seeking to get his SWAT job back. After an evidentiary hearing, the district court granted summary judgment in favor of the defendant City of Las Vegas. Officer Moser appealed.[89]

The issue, of course, as it was in the previously discussed cases, was where (and how) to draw the line between the free speech rights of a government employee and the government’s interest in avoiding disruption within its agency and maintaining workforce discipline. Again as with the cases previously discussed, the Ninth Circuit invoked the Pickering balancing test.[90] In reviewing the Pickering factors as they apply here, the Ninth Circuit reversed the district court’s summary judgment ruling, remanding the case back to the trial court not because the justices necessarily disagreed, but rather for the purpose of reviewing some factual disputes that had not yet been resolved.

The parties did not dispute that Officer Moser’s comments constituted a matter of public concern. An issue is of “public concern” if it “relates to any matter of political, social or other concern to the community, . . . (or) is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.”[91] Police shootings, per the Court, tend to fall into this category.

The parties also did not dispute the fact that Officer Moser spoke as a private citizen and not as a representative of the Las Vegas Metropolitan Police Department. “Statements are made in the speaker’s capacity as citizen if the speaker had no official duty to make the questioned statements, or if the speech was not the product of performing the tasks the employee was paid to perform.”[92] In this case, the Court found it significant that Officer Moser was home and off duty, using his personal Facebook account, when he made his contested comment.[93]

It was similarly stipulated between the parties that Officer Moser’s Facebook posting was the reason he was removed from the SWAT team, with his supervisors concerned that his comment was evidence of Officer Moser “grow(ing) callous(ness) to killing.” It was also believed that his comment could be used against him in court should he ever need to use deadly force as a sniper.[94]

With the first three Pickering considerations out of the way, the burden shifted to the Metro Police Department to produce evidence supporting either the fourth or fifth Pickering factors; i.e., whether the metro police department had an adequate justification for treating Officer differently from other members of the general public, or whether Metro would have taken the adverse employment action even absent the protected speech. Conceding that the latter did not apply, Metro argued only that it had adequate justification for treating Officer Moser as they did.[95]

In evaluating the fourth factor, the Court noted that the Pickering balancing test recognizes that a government employer has “broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity’s operations.”[96] On this issue, the Court held that the district court had failed to recognize that several factual disputes remained unresolved; a necessary prerequisite to a final decision on this issue.

First, the meaning of Officer Moser’s comment was not determined. Officer Moser argued that he only intended to say that the wounded officer should have had the opportunity to get off some defensive shots. The Metro Police Department, on the other hand, believed that Officer Moser’s comment was meant to advocate the unlawful use of deadly force; i.e., that the officers who captured the suspect should have shot him in retaliation for his earlier shooting of a police officer.[97]

Under the Pickering balancing test, the former (Officer Moser’s version) is entitled to stronger First Amendment freedom of speech protections than that latter; i.e., when an officer advocates the unlawful use of deadly force. So it is important for the trial court to make a factual determination of what Officer Moser was intending to say in his Facebook comment. The trial court failed to do this.

Secondly, there remains an unresolved factual dispute as to whether the Metro Police Department provided any evidence of predicted disruption to its operations. This issue is relevant to the strength of Metro’s interest in efficiency and employee discipline. The impact of an employee’s speech on the government agency’s operations cannot be resolved until it is determined whether the statement in issue in fact impairs discipline administered by the agency’s superiors or harmony among its co-workers, whether it has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, whether it impedes the performance of the speaker’s own duties, and/or whether it interferes with the regular operation of the law enforcement agency. [98] The district court failed to make any findings relative to these potential factual disputes.

“In sum, material questions of fact remain as to whether (Officer) Moser’s comment would likely disrupt Metro’s workforce or its reputation. . . . Put differently, Metro has produced no evidence to establish that its interests in workplace efficiency outweigh Moser’s First Amendment interests.”[99] For these reasons, the case had to be remanded for further evidentiary hearings. Other than a request for an en banc rehearing being denied,[100] there is as of yet no indication in the appellate reports how these evidentiary hearings may be proceeding.

We discuss the Moser case here for two reasons. First, it is evident that the Ninth Circuit has become comfortable analyzing these public employee First Amendment cases using the five-factor test as first specifically spelled out in Eng v. Cooley, at pages 1070 through 1072, and as described above. The U.S. Supreme Court has not been heard yet as to whether the Ninth Circuit’s Eng five-step analysis is appropriate. However, by failing to grant certiorari in Eng v. Cooley, the High Court has certainly indicated acquiescence by its silence.

Secondly, and perhaps just as importantly, the Moser case demonstrates the inherent dangers whenever a public employee—whether he or she is a prosecutor, a law enforcement officer, or any other public employee—decides to use social media to vent his or her anger or frustrations without first considering the well-known fact that anything put out there is open for anyone and everyone to read. While you may have a First Amendment right to publish your thoughts and frustrations, whether or not you choose to do so is something you might think about. Putting those frustrations in writing and publishing them over the Internet only increases the likelihood that they may come back to bite you.

Conclusion:

Aside from the Moser social media issues, this article demonstrates the difficulty courts have had in general, and continue to have, in balancing a public employee’s First Amendment freedom of speech rights with that employee’s boss’s right—or need—to minimize internal discord, hate, and discontent. As can be seen, it’s an area of the law with any number of divergent opinions, and is seldom going to be an easy issue to decide. So all we can say at this point is that unless you’re adamant about wanting to see your name in a published appellate court decision, take care in what you say, to whom you say it, the means you use in publicizing what you say, and who you might be upsetting when you say it. Your career may be at stake.

[1] (1983) 461 U.S. 138 [103 S.Ct. 1684; 75 L.Ed.2nd 708].

[2] Id., at p. 140, and fn. 1.

[3] Id., at p. 141, fn. 2, and Appendix at p. 155.

[4] Id., at p. 141.

[5] Myers v. Connick (ED La. 1981) 507 F.Supp. 752.

[6] Connick v. Myers (5th Cir. 1981) 654 F.2nd 719.

[7] 1982 U.S. LEXIS 1217 [455 U.S. 999; 102 S.Ct. 1629; 71 L.Ed.2nd 865].

[8] See Keyishian v. Board of Regents (1967) 385 U.S. 589, 605-606 [87 S.Ct. 675; 17 L.Ed.2nd 629];

Perry v. Sindermann (1972 408 U.S. 593, 597 [92 S.Ct. 2694; 33 L.Ed.2nd 570]; and

Branti v. Finkel (1980) 445 U.S. 507, 515-516 [100 S.Ct. 1287; 63 L.Ed 2nd 574].

[9] (1968) 391 U.S. 563 [88 S.Ct. 1731; 20 L.Ed.2nd 811].

[10] Connick v. Myers, supra, 461 U.S. at p. 142, quoting Pickering v. Board of Education at p. 458.

[11] Ibid.

[12] Id., at p. 143, citing Myers v. Connick, supra, 507 F.Supp, at 758.

[13] Ibid.

[14] Ibid.

[15] Id., at pp. 143-145, quoting Pickering v. Board of Education at pp. 571-572.

[16] Id., at pp. 145-146, discussing the following:

Perry v. Sindermann (1972) 408 U.S. 593 [92 S.Ct. 2694; 33 L. Ed. 2d 570];

Mt. Healthy City Board of Ed. v. Doyle (1977) 429 U.S. 274 [97 S.Ct. 568; 50 L.Ed.2nd 471]; and

Givhan v. Western Line Consolidated School District (1979) 439 U.S. 410 [99 S.Ct. 693; 58 L.Ed.2nd 619].

[17] Connick v. Myers, supra, 461 U.S. at p. 149; citing

Branti v. Finkel, supra, at pp. 515-516; and

Elrod v. Burns (1976) 427 U.S. 347 [96 S.Ct. 2673; 49 L.Ed.2nd 547].

[18] Connick v. Myers, supra, 461 U.S. at pp. 149-150.

[19] Id. at pp. 151-152.

[20] Id., at p. 152.

[21] Ibid.

[22] Id. at pp. 146-147; citing:

Board of Regents v. Roth (1972) 408 U.S. 564 [92 S.Ct. 2701; 33 L.Ed.2nd 548;

Perry v. Sindermann, supra; and

Bishop v. Wood (1976) 426 U.S. 341, 349-350 [96 S.Ct. 2074; 48 L.Ed.2nd 684].

[23] Connick v. Myers, supra, 461 U.S. at p. 147.

[24] Id., at p. 156.

[25] (2006) 547 U.S. 410 [126 S.Ct. 1951; 164 L.Ed.2nd 689].

[26] Id., at p. 414.

[27] Ibid.

[28] Ibid.

[29] Ibid.

[30] Id., at p. 415.

[31] Ibid.

[32] Ibid.

[33] Ceballos v. Garcetti (9th Cir. 2004) 361 F.3rd 1168.

[34] Id., at p. 1173.

[35] Garcetti v. Ceballos, supra, at p. 416.

[36] Id., at p. 417, citing;

Pickering, supra, at 568; Connick, supra, at 147;

Rankin v. McPherson (1987) 483 U.S. 378, 384 [107 S.Ct. 2891; 97 L.Ed.2nd 315]; and

United States v. National Treasury Employees. Union (1995) 513 U.S. 454, 466 [115 S.Ct. 1003; 130 L.Ed.2nd 964.

[37] Id., at p. 418; quoting Pickering v. Board of Education, supra, at p. 569.

[38] Ibid.

[39] Id., at pp. 418-419.

[40] Id., at pp. 420-421; citing

Givhan v. Western Line Consol. School Dist. (1979) 439 U.S. 410, 414 [99 S.Ct. 693; 58 L.Ed.2nd 619].

[41] Id, at p. 421; quoting Givhan v. Western Line Consol. School Dist., supra, at p. 414.

[42] Ibid.

[43] Id., at pp. 421-422.

[44] See Id., at pp. 426-450.

[45] See CarePartners, LLC v. Lashway (9th Cir. 2008) 545 F.3rd 867, 878.

[46] (9th Cir. 2009) 552 F.3rd 1062.

[47] Id., at p. 1064.

[48] Ibid.

[49] Eng v. County of Los Angeles (2007) 2007 U.S.Dist. LEXIS 111853 (page 7).

[50] Eng v. Cooley, supra, 552 F.3rd at p. 1065.

[51] Id., at pp. 1065-1066.

[52] Ibid.

[53] Id., at p. 1066.

[54] Ibid.

[55] Ibid.

[56] Ibid.

[57] 461 U.S. at p. 147.

[58] Eng v. County of Los Angeles (2007) 2007 U.S.Dist. LEXIS 111853.

Eng v. Cooley, supra, at pp. 1066-1067.

[59] Id., at p. 1070.

[60] Ibid, quoting Pickering v. Board of Education, supra, at p. 568.

[61] Ibid, quoting Pickering, supra.

[62] Id., at p. 1070.

[63] Id., at pp. 1070-1072.

[64] Id., at p. 1070.

[65] Ibid.; citing and quoting Johnson v. Multnomah County (9th Cir. 1995) 48 F.3rd 420, 422.

[66] Id., at pp. 1070-1071.

[67] Id, at p. 1072, quoting Johnson v. Multnomah County, supra, at p. 425.

[68] Id., at pp. 1072-1073.

[69] Id., at p. 1071, quoting Posey v. Lake Pend Oreille School Dist. No. 84 (9th Cir. 2008) 546 F.3rd 1127, fn. 2.

[70] Ibid.

[71] Id., at p. 1073.

[72] Id., at pp. 1071, 1073.

[73] Id., at p. 1074.

[74] Ibid., citing Thomas v. City of Beaverton (9th Cir. 2004) 379 F.3rd 802, 808; and

CarePartners, LLC v. Lashway (9th Cir. 2008) 545 F.3rd 867, 880.

[75] Ibid., quoting Garcetti v. Ceballos, supra, at p. 418.

[76] Id., at p. 1074.

[77] Ibid.

[78] Id., at p. 1072; quoting Mt. Healthy City School Dist. Bd. of Educ. v. Doyle (1977) 429 U.S. 274, 287 [97 S.Ct. 568; 50 L.Ed.2nd 471].

[79] Ibid.

[80] Id., at p. 1074, quoting Thomas v. City of Beaverton, supra.

[81] Ibid.

[82] Ibid.

[83] Id., at pp. 1075-1076.

[84] (Jan. 11, 2010) 558 U.S. 1110 [130 S.Ct. 1047; 175 L.Ed.2nd 881].

[85] (9th Cir. Jan. 12, 2021) 984 F.3rd 900.

[86] Id., at pp. 902-903.

[87] Id., at p. 903.

[88] Ibid.

[89] Id., at pp. 903-904.

[90] See Eng v. Cooley, supra, at p. 1070.

[91] Moser v. City of Las Vegas, supra, at p. 905;

Quoting City of San Diego v. Roe (2004) 543 U.S. 77, 83-84 [125 S.Ct. 521 [160 L.Ed.2nd 410].

[92] Ibid.

[93] Ibid.

[94] Id., at p. 906.

[95] Ibid.

[96] Ibid.; quoting Eng v. Cooley, supra, at p. 1071.

[97] Id., at pp. 907-908.

[98] Id., at pp. 908-909; Citing Rankin v. McPherson, supra.

[99] Id., at pp. 910-911.

[100] (Feb. 18, 2021) 2021 U.S.App. LEXIS 4750.

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July 17, 2022

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SPECIAL UPDATE Miranda and the Law: The Fifth Amendment

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Miranda and the Law:
The Fifth Amendment

A Legal Update by Robert C. Phillips, Deputy District Attorney (Ret).

July, 2022

Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602; 16 L.Ed.2nd 694]

Outline: The following is divided into thirteen chapters:

Chapter 1: The Fifth Amendment and Miranda

Chapter 2: Custody

Chapter 3: The Custodial Interrogation

Chapter 4: Law Enforcement

Chapter 5: Lawful Exceptions to the Miranda Rule

Chapter 6: The Admonition

Chapter 7: Invocation of Rights

Chapter 8: Waiver of Rights

Chapter 9: Voluntariness After Waiver

Chapter 10: Juveniles & Miranda:

Chapter 11: Public Employees Subject to Administrative Investigations

Chapter 12: Appellate, Evidentiary, and Admissibility Issues

Chapter 13: Suppression Issues and Procedures

Outline: The following is divided into thirteen chapters:

Chapter 1: The Fifth Amendment and Miranda

The Fifth Amendment:

The Fifth Amendment: “No person . . . shall be compelled in any Criminal Case to be a witness against himself.”

See also: California Constitution, Art I, Section 15; “Persons may not . . . be compelled in a criminal cause to be a witness against themselves . . . .”

“The right against compulsory self-incrimination is ‘the mainstay of our adversary system of criminal justice, and . . . one of the great landmarks in man’s struggle to make himself civilized.’” (United States v. Preston (9th Cir. 2014) 751 F.3rd 1008, 1015; quoting Michigan v. Tucker (1974) 417 U.S. 433, 439 [94 S.Ct. 2357; 41 L.Ed.2nd 182].)

Self-Executing:

General Rule: the Fifth Amendment self-incrimination privilege is not “self-executing.” As a result, at least in most situations (e.g., when not in custody), it is the obligation of the individual seeking the protections of the Fifth Amendment to invoke it. The state is not obligated to inform an out-of-custody person of this option. (Minnesota v. Murphy (1984) 465 U.S. 420, 429, 439 [79 L.Ed.2nd 409]; United States v. Saechao (9th Cir. 2005) 418 F.3rd 1073, 1077.)

“The privilege against self-incrimination ‘is an exception to the general principle that the Government has the right to everyone’s testimony.’ [Citation.] To prevent the privilege from shielding information not properly within its scope, we have long held that a witness who ‘desires the protection of the privilege . . . must claim it’ at the time he relies on it.” (People v. Tom (2014) 59 Cal.4th 1210, 1215; quoting (Salinas v. Texas (2014) 570 U.S. 178, 183 [133 S.Ct. 2174; 186 L.Ed.2nd 376].) (plur. Opn. of Alito, J.)

Exceptions: However, there are a number of recognized exceptions to this rule (i.e., where it is self-executing). An in-custody interrogation situation is one of them; thus, the requirement that the interrogating officer remind such a suspect of his Fifth Amendment self-incrimination privilege. (Minnesota v. Murphy, supra, at p. 439; United States v. Saechao, supra, at p. 1077, fn. 2.)

Question: Why Do People Waive their Rights and Incriminate Themselves

Aside from perhaps the need to make oneself look innocent by appearing to cooperate with a law enforcement investigation, and the propensity of some to feel they he or she is smarter than the police, it is also recognized that: “The compulsion to confess wrong has deep psychological roots, and while confession may bring legal disabilities it also brings great psychological relief.” (People v. Anderson (1980) 101 Cal.App.3rd 563, 583-584; People v. Carrington (2009) 47 Cal.4th 145, 176.)

The Need for Interrogations:

“Confessions remain a proper element in law enforcement.” (Miranda v. Arizona (1966) 384 U.S. 436, 478 [16 L.Ed.2nd 694, 726].)

“(T)he ready ability to obtain uncoerced confessions is not an evil but an unmitigated good . . . .” (McNeil v. Wisconsin (1991) 501 U.S. 171, 181 [115 L.Ed.2nd 158, 170].)

“Indeed, far from being prohibited by the Constitution, admissions of guilt by wrongdoers, if not coerced, are inherently desirable. . . . Absent some officially coerced self-accusation, the Fifth Amendment privilege is not violated by even the most damning admissions.” (United States v. Washington (1977) 431 U.S. 181, 187 [52 L.Ed.2nd 238, 245].)

“(A)dmissions of guilt are more than merely ‘desirable’ [Citation]; they are essential to society’s compelling interest in finding, convicting and punishing those who violate the law.” (Moran v. Burbine (1986) 475 U.S. 412, 426 [106 S.Ct. 1135; 89 L.Ed.2nd 410, 424].)

“A confession is like no other evidence. Indeed, ‘the defendant’s own confession is probably the most probative and damaging evidence that can be admitted against him . . . . The admissions of a defendant come from the actor himself, the most knowledgeable and unimpeachable source of information about his past conduct.’” (Arizona v. Fulminante (1991) 499 US 279, 296 [113 L.Ed.2nd 302, 322]; quoting Bruton v. United States (1968) 391 U.S. 123, 139-140 [20 L.Ed.2nd 476, 487].)

“So long as the methods used comply with due process standards, it is in the public interest for the police to encourage confessions and admissions during interrogation.” (People v. Garner (1961) 57 Cal.2nd 135, 164.)

“Voluntary confessions are not merely ‘a proper element in law enforcement,’ Miranda (v. Arizona (1966) 384 U.S. 436, 478 [16 L.Ed.2nd 694]) . . . , they are an ‘unmitigated good,’ McNeil, 501 U.S. at 181, ‘“essential to society’s compelling interest in finding, convicting, and punishing those who violate the law,”’ Ibid.” (Maryland v. Shatzer (2010) 559 U.S. 98, 108 [175 L.Ed.2nd 1045]; quoting Moran v. Burbine (1986) 475 U.S. 412, 426 [106 S.Ct. 1135; 89 L.Ed.2nd 410].)

“Questioning remains an important part of any criminal investigation. Police officers may legitimately endeavor to secure a suspect’s participation in the interrogation process so long as constitutional safeguards are honored.” (People v. Enraca (2012) 53 Cal.4th 735, 752.)

“‘A confession is like no other evidence. Indeed, “the defendant’s own confession is probably the most probative and damaging evidence that can be admitted against him. . . . [T]he admissions of a defendant come from the actor himself, the most knowledgeable and unimpeachable source of information about his past conduct. Certainly, confessions have profound impact on the jury, so much so that we may justifiably doubt its ability to put them out of mind even if told to do so.” [Citations.] While some statements by a defendant may concern isolated aspects of the crime or may be incriminating only when linked to other evidence, a full confession in which the defendant discloses the motive for and means of the crime may tempt the jury to rely upon that evidence alone in reaching its decision.’” People v. Bridgeford (2015) 241 Cal.App.4th 887, 904-905; quoting Arizona v. Fulminante (1991) 499 U.S. 279, 296 [113 L.Ed.2nd 302]; see also People v. Saldana (2018) 19 Cal.App.5th 432, 436.)

“Except for being captured red-handed, a confession is often the most incriminating and persuasive evidence of guilt—an ‘evidentiary bombshell’ that frequently ‘shatters the defense.’” (People v. Saldana, supra, citing People v. Cahill (1993) 5 Cal.4th 478, 497.)

However, noting that false confessions may easily be obtained by skilled interrogators, the United States Supreme Court has observed, “that a system of criminal law enforcement which comes to depend on the ‘confession’ will, in the long run, be less reliable and more subject to abuses than a system which depends on extrinsic evidence independently secured through skillful investigation.” (In re Elias V. (2015) 237 Cal.App.4th 568, 599-600; quoting Escobedo v. Illinois (1964) 378 U.S. 478, 488–489 [12 L. Ed.2nd 977], fns. omitted.)

In a first degree murder case, the trial court erred in refusing to admit into evidence defendant's testimony about his experience with what happened to people who denied allegations made by police in Thai refugee camps, where he was born and stayed as a boy, because the testimony was relevant under Evid. Code, § 210 to his state of mind in interacting with detectives who interrogated him and to why he might have given a false confession. However, given the other evidence he introduced concerning his confession, the erroneous preclusion of the testimony did not deprive him of his constitutional right to present a defense and was harmless. (People v. Xiong (2020) 54 Cal.App.5th 1046, 1069-1070.)

Evid. Code § 210 provides a definition of “Relevant Evidence:” “‘Relevant Evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.”

The Limitations: However, it is also recognized that the end does not always justify the means. The necessity of protecting the constitutional rights of all individuals requires the imposition of certain procedural limitations upon the efforts of law enforcement in collecting evidence in the form of a suspect’s own statements. As described below, this necessarily involves a consideration of the following:

The Fifth Amendment to the United States Constitution: Right against compulsory self-incrimination.

See also California Constitution, art 1, § 15; California’s right against self-incrimination privilege.

The Fifth (as applied to the federal government) and Fourteenth Amendments to the United States Constitution: Deprivation of one’s “right to life, liberty or property without “due process” of law.”

Note: “Due Process” requires that all persons be treated with “fundamental fairness.”

The “Miranda Rule:” In 1966, the United States Supreme Court, in a 5-to-4 decision, established procedural safeguards, including the familiar admonitions (i.e., the right to silence and the right to the assistance of counsel; see below), as a “prophylactic” measure to protect a suspect’s right against self-incrimination, when it decided Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602; 16 L.Ed.2nd 694].

Pre-Miranda: History and Development of Pre-Miranda Landmark Cases:

Early Common Law:

“At early common law, confessions were admissible at trial without restriction.” (Development of the Law—Confessions; 79 Harv. L.Rev. 935, 954 (1966))

Note: This, and the following history up until 1951 is summarized primarily from the account provided in United States v. Dickerson (1999) 166 F.3rd 667, 684-685; reversed on other grounds in Dickerson v. United States (2000) 530 U.S. 428 [120 S.Ct. 2326; 147 L.Ed.2nd 405].)

In the later part of the eighteenth century, courts began to recognize that certain confessions were not always trustworthy. (E.g.; The King v. Rudd (K.B. 1783) 168 Eng. Rep. 160 [1 Leach 115]; “(N)o credit ought to be given (to) a confession forced from the mind by the flattery of hope or by the torture of fear . . .”

“A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the strongest sense of guilt . . . but a confession forced from the mind by the flattery of hope, or by the torture of fear, comes in so questionable a shape . . . that no credit ought to be given to it; and therefore it is rejected.” (King v. Warickshall (K.B. 1783) 168 Eng. Rep. 234, 235 [1 Leach 262, 263-264].)

“The privilege against compulsory self-incrimination was developed by painful opposition to a course of ecclesiastical inquisitions and Star Chamber proceedings occurring several centuries ago. (Citations.) (Michigan v. Tucker (1974) 417 U.S. 433, 440 [41 L.Ed.2nd 182, 190].)

Pre-Miranda Landmark Cases:

Brown v. Mississippi (1936) 297 U.S. 278 [80 L.Ed. 682]: The Supreme Court adopted a Fourteenth Amendment “due process” “totality of the circumstances” test and a voluntariness standard for evaluating the admissibility of confessions.

Spano v. New York (1959) 360 U.S. 315 [79 S.Ct. 1202; 3 L.Ed.2nd 1265]; Finding the use of a friend (i.e., a “false friend”) of the defendant’s to pry a confession out of him, after the defendant had repeatedly declined to talk without the presence of his retained lawyer, with the friend playing on the defendant’s sympathies, to be a Fourteenth Amendment “due process” violation. “The abhorrence of society to the use of involuntary confessions does not turn alone on their inherent untrustworthiness. It also turns on the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves.

Escobedo v. Illinois (1964) 378 U.S. 478 [12 L.Ed.2nd 977]: Ignoring defendant’s request to talk to his attorney was held to be a violation of his Sixth Amendment right to an attorney (later determined to be more appropriately a violation of his Fifth Amendment self-incrimination rights; see Moran v. Burbine (1986) 475 U.S. 412, 429 [106 S.Ct. 1135; 89 L.Ed.2nd 410, 426].) and his Fourteenth Amendment “due process” rights.

Historical Note: Daniel Escobedo received a sentence of 40 years in prison for the 1983 ice pick murder of a Korean shopkeeper in Illinois, after his arrest in Mexico and conviction in 2004, in this three and a half-decades-old homicide.

People v. Dorado (1965) 62 Cal.2nd 338: Defendant need not actually request counsel. His statements were held to be inadmissible absent evidence showing he was aware of his right to counsel during an interrogation.

People v. Stewart (1965) 62 Cal.2nd 571: The Escobedo rule was held to apply to an investigation when it had “focused” on the defendant and he was thereafter subjected to a process of interrogation which lends itself to incriminating statements (at p. 578, fn. 5.), a theory that has since been discredited.

Voluntariness Becoming the Issue:

Slowly, “voluntariness” began to be recognized as the hallmark of a valid confession. (E.g.; Regina v. Garner (Ct.Crim.App. 1848) 169 Eng. Rep. 267; Regina v. Baldry (Ct.Crim.App. 1852) 169 Eng. Rep. 568.)

The United States Supreme Court soon adopted the rule that for a confession to be considered reliable, it must have been obtained voluntarily. (Hoyt v. Utah (1884) 110 U.S. 574 [28 L.Ed. 262]; Pierce v. United States (1896) 160 U.S. 355 [40 L.Ed. 454].)

However, the fact that the suspect was in “custody,” by itself, did not mean that a confession obtained from him or her was involuntary. (Sparf v. United States (1895) 156 U.S. 51 [39 L.Ed. 343]; Wilson v. United States (1896) 162 U.S. 613 [40 L.Ed. 1090].)

The United States Supreme Court specifically ruled that the failure to warn a suspect of his right to remain silent and of his right to counsel did not render a confession involuntary. (Id., at pp. 623-624 [40 L.Ed. at p. 1096].)

Even modernly, it is recognized that purposely ignoring a suspect’s purported invocation, continuing to ask questions despite an invocation of one’s right to silence, is not, by itself, an issue of voluntariness. (Pollard v. Galaza (9th Cir. 2002) 290 F.3rd 1030.)

The fact of a Miranda violation, or ignoring a suspect’s attempt to invoke his right to counsel (see Edwards v. Arizona (1981) 451 U.S. 477, 483 [101 S.Ct. 1880; 68 L.Ed.2nd 378, 386].) does not “inherently constitute coercion” without evidence of actual coercion or other circumstances bearing on the suspect’s free will. (People v. Davis (2009) 46 Cal.4th 539, 599, citing People v. Bradford (1997) 14 Cal.4th 1005, 1039-1040; see also People v. Villasenor (2015) 242 Cal.App.4th 42, 71-72; and Bradford v. Davis (9th Cir. 2019) 923 F.3rd 599, 615-616.)

A court’s determination of voluntariness rests on an “independent” consideration of the entire record, including “the characteristics of the accused and the details of the [encounter].” (People v. Mendez (2019) 7 Cal.5th 680, 698-699, quoting People v Neal (2003) 31 Cal.4th 63, at p. 80.)

But see “The Issue of the Intentional Miranda Violation,” under “Impeachment,” under “Lawful Exceptions to the Miranda Rule” (Chapter 5), below.

In Bram v. United States (1897) 168 U.S. 532 [42 L.Ed. 568], the Supreme Court asserted for the first time that an involuntary confession was a violation of the Fifth Amendment’s right against self-incrimination, and that only voluntary confessions were admissible as evidence in trial.

Eventually, however, it began to be recognized that the Fifth Amendment’s “Due Process Clause” was a more proper basis for requiring that a confession be obtained voluntarily to be admissible in criminal trials. (Brown v. Mississippi (1936) 297 U.S. 278 [80 L.Ed. 682]; Chambers v. Florida (1940) 309 U.S. 227 [84 L.Ed. 716]; Ashcraft v. Tennessee (1944) 322 U.S. 143 [88 L.Ed. 1192]; United States v. Carignan (1951) 342 U.S. 36 [96 L.Ed. 48]; Haynes v. Washington (1963) 373 U.S. 508 [10 L.Ed.2nd 513].)

Note: Due Process under the Fifth (as applied to federal government) and Fourteenth (as applied to the individual states) Amendments to the United States Constitution refers to the concept that the government (federal or state) cannot deprive a person of his or her “right to life, liberty or property, without due process of law,” requiring, in effect, that all persons be treated with “fundamental fairness.”

“Voluntariness” was specifically held to be the federal test for determining the admissibility of confessions. (Lisenba v. California (1941) 314 U.S. 219, 238 [62 S.Ct. 280; 86 L.Ed. 166].)

Prior to Miranda, admissibility of an accused in-custody statements was judged solely by whether they were voluntary within the meaning of the Fifth and Fourteenth Amendment “due process” clauses. (Oregon v. Elstad (1985) 470 U.S. 298 [84 L.Ed.2nd 222].)

“If a suspect’s statements had been obtained by ‘techniques and methods offensive to due process’ (Citation), or under circumstances in which the suspect clearly had no opportunity to exercise ‘a free and unconstrained will’ (Citation), the statements would not be admitted.” (Oregon v. Elstad, supra, at p. 304 [84 L.Ed.2nd at p. 229]; citing Haynes v. Washington (1963) 373 U.S. 503, 514-515 [10 L.Ed.2nd 513, 521-522].)

See also People v. Orozco (2019) 32 Cal.App.5th 802, 819-820; describing law enforcement’s repeated ignoring of defendant’s attempts to invoke while trying to talk him into changing his mind as “deplorable” tactics.”

Applicability of the Fifth Amendment to the States:

Rule: The constitutional protections under the Fifth Amendment, against compelling a person to be a witness against himself, were first made applicable to the individual states in Malloy v. Hogan (1964) 378 U.S. 1 [84 S.Ct. 1489; 12 L.Ed.2nd 653]. (See also Vega v. Tekoh (June. 23, 2022) __ U.S.__, __ [142 S.Ct. 2095; __ L.Ed.2nd __].)

The California Constitution has its own equivalent to the Fifth Amendment in Art 1, § 15.

California has enacted statutory self-incrimination protections as well in Evidence Code §§ 930 and 940.

Federal Principles vs. “Independent State Grounds:” Proposition 8: Since passage in California of the initiative Proposition 8 in June, 1982, Fifth Amendment issues, including the rules of Miranda, have been guided by federal principles rather than the stricter California rules which previously had been based on California’s constitutional principles under the doctrine of “Independent State Grounds.”

Substantive Rules: Statements taken in violation of Miranda can be used for impeachment purposes, abrogating California’s former rule to the contrary. (People v. May (1988) 44 Cal.3rd 309.)

Procedural Rules: California now follows the federal rule that a waiver of the Miranda protections needs to be proven by a preponderance of the evidence, abrogating the former California rule requiring proof beyond a reasonable doubt. (People v. Markham (1989) 49 Cal.3rd 63.)

Welf. & Insti. Code § 625.6, requiring minors 17 years of age and younger, be given access to an attorney prior to being advised of his Miranda rights and authorizing a trial court to consider a failure to do so as a factor in determining the admissibility of the minor’s statements, due to enactment of California’s Proposition 8 (Cal. Const. art. I, § 28(d)), does not authorize a court to exercise its discretion to exclude statements if those statements are admissible under federal law. (In re Anthony L. (2019) 43 Cal.App.5th 438, 448.)

Applicability to the Military:

The President of the United States, exercising his authority to prescribe procedures for military criminal proceedings (Art. 36(a), UCMJ, 10 U.S.C. § 836(a)), has decreed that statements obtained in violation of the self-incrimination clause of the Fifth Amendment are generally inadmissible at trials by court-martial. (Davis v. United States (1994) 512 U.S. 452, 457 [129 L.Ed.2nd 362, 370]; Mil. Rules of Evid., § 304(a), (c)(3).)

The Court of Military Appeals has held that the Supreme Court’s cases construing the Fifth Amendment right to counsel apply to military interrogations and control the admissibility of evidence at trials by court-martial. (United States v. McLaren (1993) 38 M.J. 112, 115; United States v. Applewhite (1987) 23 M.J. 196, 198.)

The Post-Miranda Rule:

“(T)he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” (Miranda v. Arizona, supra, at p. 444; see also People v. Elizalde et al. (2015) 61 Cal.4th 523, 531.)

The defendant’s statements taken in violation of Miranda are not admissible in the People’s “case-in-chief” to establish the defendant’s guilt. (People v. Boyer (1989) 48 Cal.3rd 247, 271.)

History: In 1966, probably the most significant, most far-reaching, most unique decision to come out of the United States Supreme Court in the 20th century was decided by a bare majority of five justices to four. Miranda v. Arizona, supra, was decided, imposing upon law enforcement an admonishment and waiver requirement, requiring law enforcement officers to warn an in-custody criminal suspect that he or she has a constitutional right to not assist his or her interrogators by supplying incriminating information.

The Miranda v. Arizona Case: The facts leading up to the Miranda decision are often forgotten; lost in the significant legalities and progressive, historical variations.

Defendant Ernesto Miranda was arrested on March 13, 1963, and charged with kidnapping and rape. Upon being taken to the police station, he was identified by the complaining witness. Without any undue pressure, intimidation, or offers of any benefit, defendant provided a written confession. Defendant neither requested, nor was offered, the assistance of an attorney. He was also never advised that he did not have to answer questions. His confession was introduced in evidence at his later trial. He was convicted and eventually sentenced to prison for 20 to 30 years for each count. The Arizona Supreme Court upheld his conviction. (See Miranda v. Arizona, supra, at pp. 491-492 [16 L.Ed.2nd at p. 733].) The United States Supreme Court reversed.

Historical Note: Ernesto Miranda was later murdered in a knife fight in a bar on January 31, 1976, in Phoenix, Arizona, at the age of 34. It is reported that his assailant was read his Miranda rights but it is unknown if he invoked those rights.

Cases Joined with the Miranda Decision: The Miranda case (No. 759) was joined with three other cases, all with similar issues. All four cases were joined for decision by the United States Supreme Court under the single title of “Miranda v. Arizona.” A summary of each case:

Vignera v. New York (No. 760): Defendant Michael Vignera was “picked up” and questioned about a robbery that occurred three days earlier. He gave police an oral confession. He was not warned of his right to the assistance of an attorney nor to remain silent. His confession was admitted against him at his trial. Vignera was convicted and sentenced to 30 to 60 years in prison. The United States Supreme Court reversed his conviction based upon law enforcement’s failure to apprise him of his Fifth Amendment self-incrimination privilege or of his right to have counsel present. (Miranda v. Arizona, supra, at pp. 493-494 [16 L.Ed.2nd at pp. 734-735].)

Westover v. United States (No. 761): Carl Calvin Westover was arrested by local police in Kansas City as a suspect in two robberies. Without any prior advisal of his constitutional rights, he was questioned over the better part of 14 hours. He was then turned over to FBI agents who advised him that he had the right to remain silent and to see an attorney. No waiver of these rights was sought. Defendant confessed to the FBI that he had committed two other robberies in California. His conviction and 30-year sentence in federal court was reversed by the United States Supreme Court, holding that the FBI was the beneficiary of the prior protracted interrogation tactics by local law enforcement. Although advised of his rights by the FBI, he never expressly waived those rights. “In these circumstances an intelligent waiver of constitutional rights cannot be assumed.” (Miranda v. Arizona, supra, at pp. 494-497 [16 L.Ed.2nd pp. 735-736].)

California v. Stewart (No. 584): Roy Allen Stewart was arrested by Los Angeles Police as a suspect in a series of purse-snatch robberies. One of his victims died from the injuries she suffered during the robbery. Defendant was subjected to nine different interrogations over the next five days, finally resulting in an admission that he robbed the lady who died. Defendant was convicted and sentenced to death. The California Supreme Court reversed his conviction. The United States Supreme Court affirmed California Supreme Court’s decision, holding that defendant was not advised of his rights and that “a knowing and intelligent waiver of these rights (cannot) be assumed on a silent record.” (Miranda v. Arizona, supra, at pp. 497-499 [16 L.Ed.2nd at pp. 736-737].)

Shared Salient Features: All four of the above cases involved an “incommunicado interrogation of individuals in a police dominated atmosphere, resulting in self-incriminating statements without full warnings of constitutional rights.” (Emphasis added; Miranda v. Arizona, supra, at p. 445 [16 L.Ed.2nd at pp. 707].)

Inherent Coerciveness of the Custodial Interrogation: The Miranda decision was premised upon the presumption that any interrogation in a custodial situation (i.e., an “incommunicado interrogation of individuals in a police-dominated atmosphere.”) is “inherently coercive,” with potential “due process” implications. (Miranda v. Arizona, supra, at p. 445 [16 L.Ed.2nd at p. 707].)

As summarized by the California Supreme Court in People v. Johnson (2022) 12 Cal.5th 544, at pp. 577-578:

“‘The Fifth Amendment provides that no “person . . . shall be compelled in any criminal case to be a witness against himself.” In Miranda [, supra,] 384 U.S. 436 . . . , the [United States Supreme] Court concluded that “without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.” Id., at 467. Accordingly, the Court formulated the now-familiar “procedural safeguards effective to secure the privilege against self-incrimination.”’ Colorado v. Spring, 479 U.S. 564, 572 [93 L.Ed.2nd 954; 107 S.Ct. 851] (1987) (quoting Miranda, supra, 384 U.S. at 444). Among these is the rule that when an accused has “expressed his desire to deal with the police only through counsel, [he] is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards [, supra], 451 U.S. 477, 484–485 . . . .’ (Arizona v. Mauro (1987) 481 U.S. 520, 525–526 [95 L.Ed.2nd 458; 107 S.Ct. 1931], fn. omitted.) ‘“[I]nterrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police.’ (Rhode Island v. Innis (1980) 446 U.S. 291, 301 [64 L.Ed.2d 297, 100 S.Ct. 1682], fns. omitted (Innis).) “‘[N]ot all conversation between an officer and a suspect constitutes interrogation. The police may speak to a suspect in custody as long as the speech would not reasonably be construed as calling for an incriminating response.’” (People v. Hensley (2014) 59 Cal.4th 788, 810–811 . . . (Hensley).) The ban on further interrogation is intended to prevent police ‘from badgering a defendant into waiving his previously asserted Miranda rights.’ (People v. Thomas (2012) 54 Cal.4th 908, 926. . . .) ‘If further conversations are initiated by the police when there has not been a break in custody, the defendant's statements are presumed involuntary and inadmissible as substantive evidence at trial.’” (Ibid.)

Physical Brutality, or the use of the so-called “third degree,” was recognized in Miranda as an evil that involves:

Not only a violation of the law; but also

The danger of causing a false confession; and

Making “police and prosecutors less zealous in the search for objective evidence.” (Miranda v. Arizona, supra, at p. 447 [16 L.Ed.2nd at p. 708].)

Psychological Effects: The Miranda decision, however, is premised more upon the recognition that the modern practice of the in-custody interrogation is psychologically, rather than physically, oriented. (Miranda v. Arizona, supra, at pp. 448-455 [16 L.Ed.2nd at pp. 709-712]; discussing interrogative techniques contained in law enforcement training manuals and used to overcome the suspect’s will and take advantage of the weaknesses of the in-custody suspect.)

Overt physical brutality is not a necessary element of a “due process” violation. “[C]oercion can be mental as well as physical, and . . . the blood of the accused is not the only hallmark of an unconstitutional inquisition.” (Blackburn v. Alabama (1960) 361 U.S. 199, 206 [4 L.Ed.2nd 242, 247].)

“A confession is involuntary whether coerced by physical intimidation or psychological pressure. [Citation.] Law enforcement conduct which renders a confession involuntary does not consist only of express threats so direct as to bludgeon a defendant into failure of the will. Subtle psychological coercion suffices as well, and at time more effectively, to overbear ‘a rational intellect and a free will.’” (United States v. Tingle (9th Cir. 1981) 658 F.2nd 1332, 1334-1335.)

“The (Miranda) court expressed concern that the use of psychologically coercive interrogation techniques, as well as the inherently coercive effect of an incommunicado interrogation, would, in the absence of adequate safeguards, cause persons undergoing interrogation to incriminate themselves involuntarily. [Citation]” (People v. Peevy (1998) 17 Cal.4th 1184, 1191.)

This is the harm that Miranda was intended to address. Absent this scenario, or at least a situation approaching this, a Miranda admonishment should not be necessary. (See discussion below.)

Inherent Coerciveness: “Miranda assumed that ‘incommunicado interrogation’ in a ‘police dominated atmosphere’ is inherently coercive, and that any statement made under such circumstances is not the product of ‘free choice’ unless certain procedural safeguards are followed.” (Emphasis added; People v. Ray (1996) 13 Cal.4th 313, 336.)

“An individual swept from familiar surroundings into police custody, surrounded by antagonistic forces, and subjected to the techniques of persuasion . . . cannot be otherwise than under compulsion t speak.” (Miranda v. Arizona, supra, at p. 461 [16 L.Ed.2nd at p. 716].)

“The ‘[f]ailure to administer Miranda warnings creates a presumption of compulsion. Consequently unwarned statements that are otherwise voluntary within the meaning of the Fifth Amendment must nevertheless be excluded from evidence under Miranda.’ [Citation].)” (People v. Bradford (1997) 14 Cal.4th 1005, 1033.)

Miranda as a Constitutional Principle:

Miranda: “Constitutional” or “Prophylactic” Rule : For many years, it was believed, based upon some very direct and unambiguous authority from both the United States and the California Supreme Courts, as well as many lower appellate courts, that Miranda was not a constitutionally mandated rule. Rather, it was understood that Miranda had a “prophylactic” purpose, and that was to protect against abuses of one’s right against compulsory self-incrimination only and not to provide criminal suspects with an independent constitutional right. (See New York v. Quarles (1984) 467 U.S. 649, 654 [104 S.Ct. 2626; 81 L.Ed.2nd 550, 556].)

In deciding the Miranda case, the Supreme Court “adopted prophylactic protections that ‘required suppression of many statements that would have been admissible under traditional due process analysis by presuming that statements made while in custody and without adequate warnings were protected by the Fifth Amendment.’” (People v. Mendez (2019) 7 Cal.5th 680, 698; quoting Oregon v. Elstad (1985) 470 U.S. 298, 304 [84 L.Ed.2nd 222; 105 S.Ct. 1285].)

Miranda admonishments, however, are not constitutionally mandated. (Moran v. Burbine (1986) 475 U.S. 412, 424-425 [106 S.Ct. 1135; 89 L.Ed.2nd 410, 423].)

“The prophylactic rule of Miranda sweeps more broadly than the Fifth Amendment itself, however, and requires the suppression of some confessions that, while perhaps not actually involuntary, were obtained in the presumptively coercive environment of police custody. [Citations]” (Tankleff v. Senkowski (2nd Cir. 1998) 135 F.3rd 235, 243.)

The standards enunciated in Miranda were “designed to assure protection of the Federal Constitution’s Fifth Amendment privilege against self-incrimination under ‘inherently coercive’ circumstances.” (People v. Sims (1993) 5 Cal.4th 405, 440.)

“The familiar warnings required by Miranda are at present construed as judicially declared rules intended to secure the constitutional right against self-incrimination, but the warnings are not themselves rights of constitutional stature. [Citations] ‘[T]he right to silence described in those warnings derives from the Fifth Amendment and adds nothing too it.’ [Citation] The warnings are, in short, only a means toward the end of safeguarding the suspect’s Fifth Amendment right. [Citations]” (People v. Montano (1991) 226 Cal.App.3rd 914, 932.)

The warning and waiver components of Miranda are no more than a court-created “series of recommended ‘procedural safeguards’ [that] were not themselves rights protected by the Constitution but were instead measures to insure that the right against self-incrimination was protected. [Citation]” (Davis v. United States (1994) 512 U.S. 452, 457 [129 L.Ed.2nd 362, 370].)

“It remains clear . . . that this prohibition on further questioning—like other aspects of Miranda—is not itself required by the Fifth Amendment’s prohibition on coerced confessions, but is instead justified only by reference its prophylactic purpose.” (Davis v. United States, supra, at p. 458 [129 L.Ed.2nd at p. 371]; citing Connecticut v. Barrett (1987) 479 U.S. 523, 528 [93 L.Ed.2nd 920, 928].)

A simple failure to administer a Miranda warning is not itself a violation of the Fifth Amendment. (Oregon v. Elstad (1985) 470 U.S. 298, 305, fn. 1 [84 L.Ed.2nd 222; 105 S.Ct. 1285]; United States v. Gonzalez-Sandoval (9th Cir. 1990) 894 F.2nd 1043, 1048; People v. Whitfield (1996) 46 Cal.App.4th 947, 955.)

“There is nothing inherently unlawful about noncoercive questioning that merely contravenes the rules set out in Miranda.” (People v. Felix (1977) 72 Cal.App.3rd 879, 885.)

Similarly, purposely ignoring a suspect’s purported invocation, continuing to ask questions despite an invocation of one’s right to silence, is not, by itself, an issue of voluntariness. (Pollard v. Galaza (9th Cir. 2002) 290 F.3rd 1030.)

Dickerson v. United States (2000) 530 U.S. 428 [120 S.Ct. 2326; 147 L.Ed.2nd 405]: The United States Supreme Court determined that the Miranda decision announced a “constitutional decision of this Court” and as such, cannot be overruled by a legislative enactment.

Rule Before Dickerson:

Prior to Dickerson, case law consistently held that a Miranda admonishment was “not constitutionally mandated.” (E.g.; see Moran v. Burbine (1986) 475 U.S. 412, 424-425 [106 S.Ct. 1135; 89 L.Ed.2nd 410, 423]; see also Davis v. United States (1994) 512 U.S. 452, 457 [129 L.Ed.2nd 362, 370]; Oregon v. Elstad (1985) 470 U.S. 298, 305, fn. 1 [84 L.Ed.2nd 222; 105 S.Ct. 1285]; United States v. Gonzalez-Sandoval (9th Cir. 1990) 894 F.2nd 1043, 1048.)

Facts:

Congress enacted 18 U.S.C. § 3501 two years (i.e., 1968) after Miranda was decided for the specific purpose of getting around the rule of Miranda by statutorily returning the admissibility of an in-custody defendant’s statements to an issue of voluntariness, with a Miranda-style admonishment being but one factor to consider (see 18 U.S.C. § 3501(b)(3) & (4)) in determining whether defendant’s statements were voluntary.

Under the terms of the statute, “voluntariness” would be the issue to be decided by the trial court. (18 U.S.C. § 3501(a): “. . . a confession . . . shall be admissible in evidence if it is voluntarily given.”)

Although not used for almost a third of a century, the Fourth Circuit Court of Appeal applied the statute to make admissible the un-Mirandized statements of a bank robber. (See United States v. Dickerson (4th Cir. 1999) 166 F.3rd 667.) The Supreme Court reversed, finding that despite its earlier language indicating that Miranda was but a “prophylactic rule” of procedure (see above), Miranda in fact imposed a constitutional requirement.

However, a statute cannot overrule a Supreme Court decision which is based upon the Constitution. (E.g., see City of Boerne v. Flores (1997) 521 U.S. 507, 517-521 [138 L.Ed.2nd 624, 636-638].) In determining the validity of section 3501, the Supreme Court was forced to decide whether Miranda “announced a constitutional rule or merely exercised its supervisory authority to regulate evidence in the absence of congressional direction.” (Dickerson v. United States, supra, at p. 437 [120 S.Ct. 2326; 147 L.Ed.2nd at p. 415].)

Result: The Supreme Court, in a 7-to-2 decision, concluded in Dickerson that “Miranda announced a constitutional rule that Congress may not supersede legislatively,” thus rendering section 3501 a nullity. (Emphasis added; Id. at p. 444 [120 S.Ct. 2326; 147 L.Ed.2nd at p. 420].)

Some courts are still confused by this theory. In Tekoh v. County of Los Angeles (9th Cir. 2021) 985 F.3rd 713, the Ninth Circuit Court of Appeal reversed a trial court decision where the district court judge had instructed a civil jury according to the pre-Dickerson rule; i.e., that the jury was to consider the “objective totality of all the surrounding circumstances. Whether a confession is improperly coerced or compelled . . . .” (pg. 717.) In reversing, the Tekoh Court held that when an un-Mirandized statement is used against a defendant in a criminal case in the prosecution’s case in chief, the defendant’s constitutional Fifth Amendment right against self-incrimination is in fact violated. As such, this violation of the defendant’s constitutional self-incrimination rights may serve as a basis for a federal 42 U.S.C. § 1983 civil suit.

What Does Dickerson Mean: When a police officer violates the rules of Miranda, but before a resulting confession is used in evidence in a trial, has he or she violated the Constitution The answer is “No.”

Chavez v. Martinez (2003) 538 U.S. 760 [155 L.Ed.2nd 984], followed Dickerson, and found that neither a Miranda violation, nor even a “coercive” interrogation, violates the Fifth Amendment constitutional protection against self-incrimination. It is not until the result of a Miranda violation is used in court against the defendant that the defendant’s Fifth Amendment self-incrimination privilege has been violated.

In Chavez, it was alleged that a police sergeant ignored a seriously wounded suspect’s refusals to answer questions while interfering with the medical personnel’s attempts to treat him, when the suspect (Martinez) had never been advised of his Miranda rights. The suspect, who was never charged with a criminal offense arising from this incident, sued Sgt. Chavez and the Oxnard Police Department pursuant to 42 U.S.C. § 1983 in federal court, for violating his federal constitutional rights.

United States v. Patane (2004) 542 U.S. 630 [159 L.Ed.2nd 667] followed Chavez, and reiterated the rule that the Fifth Amendment (and perhaps even the Miranda rule itself) is a “trial right,” and is therefore not violated by a police officer who ignores the Miranda admonishment and waiver requirements. A Miranda violation does not blossom into a Fifth Amendment violation until the product of the improper interrogation is used in court. (See also United States v. Verdugo-Urguidez (1990) 494 U.S 259, 264 [108 L.Ed.2nd 222, 232]; and People v. Davis (2005) 36 Cal.4th 510, 552.)

See also Spielbauer v. County of Santa Clara (2009) 45 Cal.4th 704, 727; “(T)he right against self-incrimination is not itself violated until statements obtained by compulsion are used in criminal proceedings against the person from whom the statements were obtained.” (Italics in original, citing Chavez v. Martinez, supra, at pp. 767-773, 777-778.)

And see Tobias v. Arteaga (9th Cir. 2021) 996 F.3rd 571, at p. 580: “The district court correctly denied qualified immunity on Tobias’s claim that the LAPD Detectives violated his Fifth Amendment right to counsel by continuing his custodial interrogation after he requested an attorney and then using the resulting confession against him in his criminal case.”

The Ninth Circuit Court of Appeal: Even before Dickerson, federal decisions such as Henry v. Kernan (9th Cir. 1999) 197 F.3rd 1021.) and California Attorneys for Criminal Justice v. Butts (9th Cir. 1999) 195 F.3rd 1039, tended to blur the distinctions between a simple Miranda violation and the Fifth Amendment.

Henry v. Kernan: Per the Ninth Circuit, any “deliberate course of action to violate Miranda” is a constitutional violation as well as a Miranda violation. Without attempting to explain the differences between the two, the Court opined that although a simple Miranda violation does not implicate the Constitution, when the “police knowingly engage in calculated misconduct in order to secure the disputed evidence,” the Constitution is violated. While the defendant in this case was misled into believing that his responses could not be used against him (a police tactic consistently considered to constitute “coercion;” see California Attorneys v. Butts, supra.), the constitutional violation per the Court was in the interrogating officers’ deliberate intent to violate the suspect’s Miranda rights.

California Attorneys v. Butts: Although acknowledging that Miranda is but a “prophylactic device” used to ensure respect for an in-custody criminal suspect’s Fifth Amendment right against self-incrimination and not an independent constitutional right in itself, this panel of the Ninth Circuit went on to hold that “Miranda cannot be viewed entirely apart from the constitutional rights that it protects.” (Certiorari was denied in Butts by the Supreme Court on the same day Dickerson was decided.)

The Ninth Circuit Court of Appeal has also interpreted this to mean that a defendant’s Fifth Amendment self-incrimination rights have been violated if used even pre-trial, any time they are used to prompt a criminal filing and in certain pre-trial hearings. “A coerced statement has been ‘used’ in a criminal case when it has been relied upon to file formal charges against the declarant, to determine judicially that the prosecution may proceed, and to determine pretrial custody status.” (Stoot v. City of Everett (9th Cir. 2009) 582 F.3rd 910, 922-925; finding also that a pre-trial evidentiary hearing, to determine the admissibility of the statements themselves, did not constitute a Fifth Amendment violation.)

Stoot further held that because it was reasonably foreseeable that a prosecutor would use the results of the interrogation (i.e., defendant’s confession), the fact that it was so used by a prosecutor did not cut off the interrogating officer’s potential civil liability. (Stoot v. City of Everett, supra, at pp. 926-927.)

The other federal circuits are split on whether the Fifth Amendment self-incrimination protections extend to pre-trial hearings:

Yes: Higazy v. Templeton (2nd Cir. 2007) 505 F.3rd 161, 171, 173, bail hearings, suppression hearings, arraignments, and probable cause hearings; Best v. City of Portland (7th Cir. 2009) 554 F.3rd 698, 702-703, suppression hearings; Sornberger v. City of Knoxville (7th Cir. 2006) 434 F.3rd 1006, 1027, bail hearings, arraignments; City of Hays v. Vogt (10th Cir. 2017) 844 F.3rd 1235, 1239-1246.)

No: Renda v. King Cir. 2003) 347 F.3rd 550, 552, “[A] plaintiff may not base a § 1983 claim on the mere fact that the police questioned her in custody without providing Miranda warnings when there is no claim that the plaintiff’s answers were used against her at trial.”; Burrell v. Virginia (4th Cir. 2005) 395 F.3rd 508, 514, “[The plaintiff] does not allege any trial action that violated his Fifth Amendment rights; thus, ipso facto, his claim fails on the [Chavez v. Martinez (2003) 538 U.S. 760 [123 S.Ct. 1994; 155 L.Ed.2nd 984] plurality’s reasoning.”); Murray v. Earle (5th Cir. 2005) 405 F.3rd 278, 285, “The Fifth Amendment privilege against self-incrimination is a fundamental trial right which can be violated only at trial, even though pre-trial conduct by law enforcement officials may ultimately impair that right.”

The requirement that the rule of Miranda only applies where there is a custodial interrogation “is a function of Miranda’s underlying rationale—namely, as a ‘constitutional rule’ implementing the Fifth Amendment’s privilege against self-incrimination.” (People v. Orozco (2019) 32 Cal.App.5th 802, 811; citing Dickerson v. United States, supra, at pp. 440-444.)

The Ninth Circuit further held that the same rule applies to coerced confessions, in violation of the Fifth Amendment. (Crowe v. County of San Diego (9th Cir. 2010) 593 F.3rd 841, 862; finding the rule to apply to a “Dennis H. hearing” (a hearing within the first 48 hours of custody to determine whether a minor should be declared a ward of the court; In re Dennis H. (1971) 19 Cal.App.3rd 350.), grand jury proceedings, and W&I § 707 hearing to determine whether the boys should be tried as adults.)

There is a split of authority on this issue. The following courts agree with the Ninth Circuit:

Sornberger v. City of Knoxville (7th Cir. 2006) 434 F.3rd 1006.
Higazy v. Templeton (2nd Cir. 2007) 505 F.3rd 161.

But the following courts have held that the Fifth Amendment is not violated until used at the actual trial of the matter:

Burrell v. Virginia (4th Cir. 2005) 395 F.3rd 508.
Murray v. Earle (5th Cir. 2005) 405 F.3rd 278.
Renda v. King (3rd Cir. 2003) 347 F.3rd 550.

Note, however, People v. Superior Court (Corbett) 2017) 8 Cal.App.5th 670, at p. 679, where the Second District Court of Appeal (Div. 7) erroneously held “. . . the police violated the Fifth Amendment by failing to honor Corbett’s unambiguous invocation during custodial interrogation of his right to remain silent.”

The Seventh Circuit Court of Appeal has held that where an un-Mirandized statement was used against the defendant in the commencement of her criminal prosecution, but where charges were dropped prior to trial, the Fifth Amendment is violated. (Sornberger v. City of Knoxville (7th Cir. 2006) 434 F.3rd 1006, 1026-1027.)

In discussing what Dickerson means, the Ninth Circuit Court of Appeal vacated a district court’s judgment on a jury's verdict in Plaintiff’s civil suit against a deputy sheriff for having violated his Miranda rights, reversing the district court’s judgment as to plaintiff's requested jury instruction, and remanded for a new trial in an action alleging, in part, that plaintiff’s Fifth Amendment right against self-incrimination was violated when his un-Mirandized statement was used against him at his criminal trial. The Court held that in light of the Supreme Court’s decision in Dickerson v. United States, supra, plaintiff had been deprived of his Fifth Amendment right against self-incrimination, allowing him to assert a claim against the state official who deprived him of that right under § 1983. The Court held that while the question of liability was ultimately for the jury to decide, plaintiff sufficiently demonstrated a Fifth Amendment violation of his Miranda rights. Also, there was no question that the deputy sheriff caused the introduction of the statements at plaintiff's criminal trial even though he himself was not the prosecutor. Where government officials introduce an un-Mirandized statement to prove a criminal charge at a criminal trial against a defendant, a § 1983 claim may lie against the officer who took the statement. By contrast, in cases like Chavez v. Martinez, supra, where the suspect was never charged, or where police coerce a statement but do not rely on that statement to file formal charges, the Fifth Amendment is not implicated. (Tekoh v. County of Los Angeles (9th Cir. 2021) 985 F.3rd 713, 719-720.)

The Court in Tekoh differentiated its facts from its prior holding in Fortson v. L.A. City Attorney’s Office (9th Cir. 2017), 852 F.3rd 1190 (a Second Amendment, right to the possession of firearms, case), where there was no indication that the plaintiff’s un-Mirandized statements were used against him in a subsequent criminal case. (At pg. 724, fn. 10.)

The Tekoh Court further noted in a footnote that if it had been determined that plaintiff was not in custody at the time of the interrogation, then no Miranda warnings would have been necessary, and there being no Miranda nor Fifth Amendment violation, the defendant deputy sheriff could not be civilly liable. (At pg. 725, fn. 11.) The entire Tekoh decision, however, is written under the unstated assumption that the plaintiff was in fact in custody at the time of the interrogation in issue.

Tekoh was soon reversed by the U.S. Supreme Court in Vega v. Tekoh (June. 23, 2022) __ U.S.__ [142 S.Ct. 2095; __ L.Ed.2nd __]. See below.

Fourteenth Amendment “Due Process:” However, per the majority of the Chavez Court, a coercive interrogation, conducted in a manner that “shocks the conscience,” may be a Fourteenth Amendment “substantive due process” violation. (Chavez v. Martinez, supra; case remanded for determination of this issue.)

See also Crowe v. County of San Diego (9th Cir. 2010) 593 F.3rd 841, 862-863, and Tobias v. Arteaga (9th Cir. 2021) 996 F.3rd 571, at pp. 584-585.)

“The substantive due process standard requires showing that an officer engaged in an ‘abuse of power [that] “shocks the conscience” and “violates the decencies of civilized conduct.”’” (Id., at p. 584, quoting Stoot v. City of Everett (9th Cir. 2009) 582 F.3rd 910, 928.)

“The Fourteenth Amendment of the federal Constitution and article I, section 7 of the California Constitution make ‘inadmissible any involuntary statement obtained by a law enforcement officer from a criminal suspect by coercion.’” (People v. Sapp (2003) 31 Cal.4th 240, 267; see also People v. Peoples (2016) 62 Cal.4th 718, 740.)

See “Lawful Exceptions to the Miranda Rule,” “Use of non-coerced statements for impeachment purposes,” (Chapter 5), below.

Dickerson’s Effect upon the Legal Exceptions to Miranda:

Since the United States Supreme Court has held that the rule of Miranda is in fact a constitutional rule, and not merely the “prophylactic” rule we were led to believe for so many years, the question often comes up: “What about the legal exceptions to Miranda; are they still good ”

The answer is: “Yes;” at least so far (see below).

In Dickerson (530 U.S. at p. 441 [120 S.Ct. 2326; 147 L.Ed.2nd at p. 418].), the Supreme Court discusses the fact that the court-imposed sanctions for a Fifth Amendment/Miranda violation need not necessarily be the same as imposed for a Fourth Amendment/Search & Seizure violation, hinting at the continuing validity of prior decisions which have upheld that the non-applicability of “fruit of the poisonous tree” doctrine and the lawful use of statements taken in violation of Miranda for purposes of impeachment.

The California Supreme Court has held that Dickerson has not changed the rules on using uncoerced statements, despite being taken in violation of Miranda, for impeachment purposes. (People v. DePriest (2007) 42 Cal.4th 1, 29-36; see also People v. Demetrulias (2006) 39 Cal.4th 1, 29-30.)

See “Lawful Exceptions to the Miranda Rule” (Chapter 5), below.

The U.S. Supreme Court finally explained the Dickerson ruling in more detail in Vega v. Tekoh (June. 23, 2022) __ U.S.__ [142 S.Ct. 2095; __ L.Ed.2nd __]. In Vega, the Court (in a split, 6-to-3 decision) held that “a violation of Miranda is not itself a violation of the Fifth Amendment, and . . . (the majority of the Court saw) no justification for expanding Miranda to confer a right to sue under (42 U.S.C.) § 1983.” The Court reached this conclusion after evaluating all its earlier decisions where it was noted that Miranda, although based upon constitutional principles and intended to enforce and give weight to the Fifth Amendment self-incrimination protections, was never intended to provide a right for a criminal defendant to sue an offending law enforcement officer in a civil suit.

Why Prosecutors and Police Officers Should be Concerned; Applicable Professional and Ethical Standards:

General Principles:

Prosecutors, from an ethical and professional standpoint, as “officers of the court,” should not be advising police officers to violate either the Constitution or the dictates of the state and federal Supreme Courts. (See below)

Law Enforcement Officers, having sworn to uphold the Constitution and the laws of this nation and California, should not themselves be purposely devising ways to bypass or ignore the Constitution or the dictates of the State and Federal Supreme Courts. (See below)

Courts’ Condemnation of Intentional Miranda Violations:

The United States Supreme Court has specifically commanded that: “If the accused indicates that he wishes to remain silent, "the interrogation must cease.” If he requests counsel, “the interrogation must cease until an attorney is present.” (Edwards v. Arizona (1981) 451 U.S. 477, 482 [101 S.Ct. 1880; 68 L.Ed.2nd 378].)

“‘Edwards set forth a “bright-line rule” that all questioning must cease after an accused requests counsel. [Citation.] In the absence of such a bright-line prohibition, the authorities through “badger[ing]” or “overreaching”—explicit or subtle, deliberate or unintentional—might otherwise wear down the accused and persuade him to incriminate himself notwithstanding his earlier request for counsel's assistance.”” (People v. Henderson (2020) 9 Cal.5th 1013, 1022; quoting Smith v. Illinois (1984) 469 U.S. 91, 98 [83 L.Ed.2nd 488, 105 S. Ct. 490]; see also People v. Johnson (2022) 12 Cal.5th 544, at pp. 591-502.)

The United States Supreme Court has also condemned the practice of training law enforcement to purposely violate the rules of Miranda. (Missouri v. Seibert (2004) 542 U.S. 600 [159 L.Ed.2nd 643], at fn. 2.)

The California Supreme Court is in agreement:

A defendant’s re-initiation of questioning in a murder case was held to be “involuntary” (and thus a Fourteenth Amendment “due process” violation) after defendant had invoked his Miranda rights to remain silent and to receive assistance of counsel some nine times during the detective’s earlier interrogation, where the detective had continued the earlier interrogation in deliberate violation of Miranda in the hope of obtaining impeachment evidence, with defendant remaining in custody and incommunicado after the earlier interrogation without being provided access to counsel and without being provided food, drink, or toilet facilities, when the defendant was only 18 years old, inexperienced in legal matters, with minimal education and with low intelligence, and the detective made promises and threats during earlier interrogation after having violated Miranda. (People v Neal (2003) 31 Cal.4th 63.)

“Our conclusion that the officers’ repeated refusal to honor defendant’s invocation of his Miranda rights did not induce an involuntary statement should not be construed as condoning the officers’ tactics. The [U.S.] Supreme Court has made clear that ‘Miranda is a constitutional decision’ [Citation.] and articulates ‘a constitutional rule’ [Citation.], notwithstanding exceptions to the rule like the one at issue here. [Citations.] Thus, the deliberate, intentional and repeated violation of that rule may violate a defendant’s constitutional rights. At a minimum, ‘[a]s we have emphasized on more than one occasion, [such] misconduct . . . is “unethical” and must be “strongly disapproved.” [Citation.]’ [Citation.] This type of police misconduct is not only nonproductive, as this case demonstrates, but can be counterproductive because in the appropriate case it would compel us to reverse a conviction. [Citation.] Surely, the possibility of reversal must outweigh whatever advantage police interrogators hope to gain by systematically ignoring a defendant’s invocation of his or her Miranda rights. Moreover, respect for the rule of law is not advanced when the guardians of the law elect to deliberately violate it.” (People v. Jablonski (2006) 37 Cal.4th 774, 817.)

See also People v. Peevy (1998) 17 Cal.4th 1184, 1205-1207; declining to decide whether an officer’s intentional violation of Miranda was the product of “widespread, systematic police misconduct,” and if so, whether such a practice requires the suppression of a defendant’s statements for all purposes (i.e., to include impeachment).

The California Supreme Court reaffirms “that principle,” and warns, again, that if it is found that such the practice of intentional Miranda violations have become widespread or pursuant to an official police department practice, an exclusionary rule may be developed. (People v. Nguyen (2015) 61 Cal. 4th 1015, 1077-1078.)

And see People v. Johnson (2022) 12 Cal.5th 544, at pp. 591-591, where the intentional ignoring of a hospitalized murder suspect’s attempts to invoke both his right to silence (violating Miranda) and to the assistance of counsel (violating Edwards v. Arizona (1981) 451 U.S. 477, 482 [101 S.Ct. 1880; 68 L.Ed.2nd 378].) was found to be troubling (“. . . we are troubled by the earlier law enforcement conduct.”), although the Court ultimately upheld defendant’s later reinitiation of questioning despite finding the issue as “close.”

Later in its decision, the California Supreme Court found it “concerning (italics added) the multiple clear violations of Miranda that occurred in this case through the repeated efforts of investigating officials to solicit defendant's waiver of his rights to silence and counsel, after he had expressed his unwillingness to talk,” noting that “it is one thing to reapproach a suspect about his willingness to talk after a ‘significant period of time’ . . . ; it is another thing to reapproach the suspect to confront him or to inquire about his willingness to talk no less than five times in a roughly three-hour span. (Id., at p. __.)

Per the Court in discussing the practice of an intentional Miranda/Edwards violation: “We emphasize the substantial costs to the justice system and the lives affected when law enforcement officials, however well-intentioned, do not conform their own conduct to the law.” (Id., at p. __.)

And then again, at pg. __, fn. 4, the Court reiterated: “No one should take from this opinion the lesson that violations of constitutional rights carry no consequences. Every violation jeopardizes the ability to place before a jury anything a suspect might say, and jeopardizes any conviction that might be obtained if matters that should have been excluded are erroneously admitted.”

The Ninth Circuit’s Opinion:

The federal Ninth Circuit Court of Appeal has also indicated their belief that not only is there civil liability when it is proven that police officers had a pre-existing plan to intentionally ignore an in-custody suspect’s attempts to invoke his Fifth Amendment rights (an issue not discussed in Chavez), but such a plan might also trigger a federal criminal prosecution per 18 U.S.C. § 241 (10 yrs/$10,000). (Cooper v. Dupnik (9th Cir. 1992) 963 F.2nd 1220, 1243, fn. 10.)

Also, the Ninth Circuit Court of Appeal, noting agreement with the California Supreme Court, termed an intentional Miranda violation as, “unethical and . . . strongly disapproved.” (Bradford v. Davis (9th Cir. 2019) 923 F.3rd 599, 620.)

Other Decisions:

California’s Second District Court of Appeal (Div. 2) has most recently found intentional Miranda violations to be a “deplorable” interrogation tactic (Italics added; People v. Orozco (2019) 32 Cal.App.5th 802, 816.)

Also, out of the Second District’s Division 6: “We share the views of division four of this court: ‘This is a very troubling case, presenting a deliberate police violation of Miranda . . . .’ [Citation.] The holding of Miranda is not arcane and establishes a ‘bright line’ rule. [Citation.] When the police deliberately step over the line and disobey Supreme Court pronouncements, respect for the rule of law necessarily diminishes. Appellant’s confession should not have been admitted into evidence. Were we to reach a contrary determination, the police could deliberately and successfully ignore the pronouncements of the United States and California Supreme Courts.” (In re Gilbert E. (1995) 32 Cal.App.4th 1598, 1602.)

The Court is making reference to People v. Bey (1993) 21 Cal.App.4th 1623, at p. 1628, where Division 4 of the Second District Court of Appeal comments: “This is a very troubling case, presenting a deliberate police violation of Miranda coupled with a misrepresentation to appellant about the legal consequences of that violation.”

Legal Effects of Dickerson:

It appears, at least to date, that despite converting Miranda from a mere “prophylactic” rule of procedure to a constitutional principle, the Supreme Court did not intend to alter the consequences of a Miranda violation, or eliminate any of the commonly accepted exceptions to the rule. (See “Lawful Exceptions to the Miranda Rule” (Chapter 5), below.

The Supreme Court in Dickerson specifically noted that the consequences of a Fourth Amendment search and seizure violation are not necessarily the same as a Fifth Amendment (i.e., Miranda) violation. (Dickerson v. United States, supra, at p. 441 [147 L.Ed.2nd at p. 418].) The Court specifically referred to the continuing validity of:

The “Public Safety Exception.” (per New York v. Quarles (1984) 467 U.S. 649 [104 S.Ct. 2626; 81 L.Ed.2nd 550].) (See below)

Use of “non-coerced” statements for impeachment purposes. (Per Harris v. New York (1971) 401 U.S. 222 [28 L.Ed.2nd 1].)

The Ninth Circuit Court of Appeal, in changing its mind from several prior decisions (see Henry v. Kernan (9th Cir. 1999) 177 F.3rd 1152 (amended at 197 F.3rd 1021.); and California Attorneys for Criminal Justice v. Butts (9th Cir. 1999) 195 F.3rd 1039), more recently ruled that it matters not whether the violation is intentional. So long as not coerced, the defendant’s statements are admissible for impeachment purposes. (Pollard v. Galaza (9th Cir. 2002) 290 F.3rd 1030.)

The California Supreme Court agrees (People v. Peevy (1998) 17 Cal.4th 1184.), at least if not accompanied by aggravating factors sufficient to constitute “coercion” and thus a Fourteenth Amendment “due process” violation. (People v. Neal (2003) 31 Cal.4th 63.)

“Statements taken in violation of Miranda are inadmissible in the government’s case-in-chief. The prosecution may still use such statements for impeachment purposes. (E.g., People v. Pokovich (2006) 39 Cal.4th 1240, 1247 . . . ; People v. Peevy (1998) 17 Cal.4th 1184, 1193 . . . .) What the government may not use against a defendant for any purpose are any of her involuntary statements. We consider statements involuntary—and thus subject to exclusion under the Fifth and Fourteenth Amendments of the federal Constitution—if they are the product of ‘coercive police conduct.’ (People v. Williams (2010) 49 Cal.4th 405, 437 . . . .)” (People v. Caro (2019) 7 Cal.5th 463, 492.)

But see the concurring opinion in Caro (at pp. 527 to 535) arguing that defendant was not only coerced into making incriminating admissions (a “due process” violation), but that she was also in custody while questioned without benefit of a Miranda admonishment or waiver.

It was not prosecutorial misconduct for the prosecution to hold back defendant’s tape-recorded confession until the People’s rebuttal case, after defendant testified and claimed that he didn’t remember confessing because he was drunk and “blacked out.” Use of a defendant’s statements for impeachment purposes (to show his lack of intoxication, in the case) is lawful, particularly in this case when the prosecution promised only not to use a particular officer’s testimony as to defendant’s state of inebriation. (People v. Debouver (2016) 1 Cal.App.5th 972, 979-981.)

Miranda Violations as a Due Process Issue:

Due Process: The California Supreme Court, in People v. Neal (2003) 31 Cal.4th 63, has since held that purposely ignoring an in-custody suspect’s repeated attempts to invoke his Miranda rights some nine times, plus other aggravating circumstances, constitutes a constitutional “due process” violation, sufficient, at least, to preclude the use of a defendant’s resulting statements even for purposes of impeachment. (See also People v. Orozco (2019) 32 Cal.App.5th 802, 818-521.)

The Court noted in Neal that in addition to the detective purposely ignoring the defendant’s attempts to invoke both his right to remain silent and, repeatedly (i.e., nine times), his right to an attorney, the defendant was also young, inexperienced, and had minimal education and intelligence, and he had been deprived of food, water, bathroom facilities, and any contact with non-custodial personnel overnight while remaining in custody. Also, undermining his will to resist, defendant was subjected to the detective’s promise to help him if he cooperated, but a threat that the “system” would “stick it to him” if he didn’t. This, all added together, constituted a Fourteenth Amendment “due process” violation. As the product of a constitutional “due process” violation that went well beyond simply ignoring an attempt to invoke one’s Miranda rights, the defendant’s decision to reinitiate questioning and his resulting confessions were “involuntary” and inadmissible for any purpose (including impeachment).

A court’s determination of voluntariness rests on an “independent” consideration of the entire record, including “the characteristics of the accused and the details of the [encounter].” (People v. Mendez (2019) 7 Cal.5th 680, 698-700, quoting People v Neal, supra, at p. 80, while differentiating the facts from those in Neal.)

See also People v. Johnson (2022) 12 Cal.5th 544, at p. 584, where the Supreme Court differentiated the facts in this case from those of Neal.

How does Neal square with Chavez

Despite the fact that the California Supreme Court in Neal never intimated that the detective’s actions “shocked the conscience,” which was the necessary threshold for finding a “due process” violation in the federal Chavez case, it was noted in Neal (in fn.1) that Chavez did not apply to a criminal case in that the issue in Chavez was a person’s right to file a civil lawsuit, per 42 U.S.C. § 1983, while the issue in Neal was the potential suppression of elicited statements in a criminal case. The Court did not cite any authority for its conclusion that what constitutes a “due process” violation depends upon the nature of the resulting court proceeding; i.e., civil vs. criminal.

Totality of the Circumstances:

To find a “due process” violation, there must have been some form of coercion. Repeatedly ignoring a suspect’s invocation to this right to counsel, even though combined with purposely putting him into an interview room with his girlfriend hoping that she might elicit some incriminating statements (which in fact happened), although a form of deception, was not what elicited defendant’s eventual confession. In considering the “totality of the circumstances, and “(b)ecause the ‘proximate caus[e]’ of his ensuing confession was the conversation—and not the deceptive act of orchestrating its occurrence—the requisite proximate causal link between the police stratagem and defendant’s confession is missing.” (People v. Orozco (2019) 32 Cal.App.5th 802, 818-821.)

Purposes of Miranda:

As indicated by the multitude of cases described in this outline (see below), the courts have made it clear that the purposes of Miranda are threefold:

To insure respect for these constitutional principles by law enforcement; and

To guarantee an awareness of these constitutional principles by those being questioned by law enforcement in a custodial, incommunicado, context.

To protect an in-custody criminal suspect from the inherent coerciveness of an incommunicado, police-dominated (i.e., “stationhouse”) interrogation.

See Vega v. Tekoh (June. 23, 2022) __ U.S.__, __ [142 S.Ct. 2095; __ L.Ed.2nd __].

Understanding these purposes behind the Miranda decision often helps to understand the reasoning behind the case law of Miranda, and to recognize under what circumstances it is, or is not, necessary to apply its rules.

“The ‘constitutional foundation underlying the privilege is the respect a government—state or federal—must accord to the dignity and integrity of its citizens.’ Schmerber v. California, 384 U.S. 757, 762 (1966). To maintain a ‘fair state-individual balance,’ the privilege ensures that the government ‘shoulder[s] the entire load’ in building a criminal case. Miranda v. Arizona, 384 U.S. 436, 460 (1966). ‘[O]ur accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from [the defendant’s] own mouth.’ Id.” (Minnesota v. Diamond (2018) 905 N.W.2nd 870.)

The rules of Miranda only apply when there is a law enforcement-citizen contact involving an “incommunicado interrogation of individuals in a police dominated atmosphere, resulting in self-incriminating statements without full warnings of constitutional rights.” (Emphasis added; Miranda v. Arizona, supra, at p. 445 [16 L.Ed.2nd at p. 707].)

The purpose behind Miranda is “preventing government officials from using the coercive nature of confinement to extract confessions that would not be given in an unrestrained environment.” (Arizona v. Mauro (1987) 487 U.S. 520, 529-530 [95 L.Ed.2nd 458, 468].)

“The (Miranda) court expressed concern that the use of psychologically coercive interrogation techniques, as well as the inherently coercive effect of incommunicado interrogation, would, in the absence of adequate safeguards, cause persons undergoing interrogation to incriminate themselves involuntarily. [Citation]” (People v. Peevy (1998) 17 Cal.4th 1184, 1191.)

See also Missouri v. Seibert (2004) 542 U.S. 600, 610, & fn. 2 [159 L.Ed.2nd 643], criticizing an interrogation tactic (interrogation-warning-interrogation) intended to “exert . . . pressure upon an individual as to disable him from making a free and rational choice.”

The Miranda decision was premised upon the presumption that any interrogation in a custodial situation (i.e.; “incommunicado interrogation of an individual in a police-dominated atmosphere”) is “inherently coercive.” (Miranda v. Arizona (1966) 384 U.S. 436, 445 [16 L.Ed.2nd 694, 708].) see also Doody v. Ryan (9th Cir. 2011) 649 F.3rd 986, 1018-1019; In re Joseph H. (2015) 237 Cal.App.4th 517, 530.)

See also People v. Orozco (2019) 32 Cal.App.5th 802, 812, noting that “those pressures nonetheless necessitate a ‘protective device’—namely, Miranda’s rule—to ensure that suspects do not make the type of compelled statements at the core of the Fifth Amendment’s privilege.”

Miranda was intended to address those circumstances where an in-custody defendant's “‘will was overborne’ or if his confession was not ‘the product of a rational intellect and a free will . . . .’” (Citations omitted; People v. Haydel (1974) 12 Cal.3rd 190, 198; see also Doody v. Ryan (9th Cir. 2011) 649 F.3rd 986, 1002; People v. McWhorter (2009) 47 Cal.4th 318, 346-347; People v. Caro (2019) 7 Cal.5th 463, 492.)

The “focus is on ‘whether [the] defendant’s will was overborne by the circumstances surrounding the giving of [the] confession,’ an inquiry that ‘takes into consideration the totality of all the surrounding circumstances — both the characteristics of the accused and the details of the interrogation.’” (United States v. Preston (9th Cir. 2014) 751 F.3rd 1008, 1016; quoting Dickerson v. United States (2000) 530 U.S. 428, 434 [120 S.Ct. 2326; 147 L.Ed.2nd 405].)

Talking about the Fifth Amendment right against self-incrimination, the United States Supreme Court has noted that: “Its essence is the requirement that the State which proposes to convict and punish an individual produce the evidence against him by the independent labor of its officers, not by the simple, cruel expedient of forcing it from his own lips.” (Culombe v. Connecticut (1961) 367 U.S. 568, 581-582 [6 L.Ed.2nd 1037].)

“‘Any police interview of an individual suspected of a crime has coercive aspects to it.’ [Citation] When police conduct results in an individual being placed ‘in custody,’ the substantial coercion inherent in his situation ‘blurs the line between voluntary and involuntary statements, and thus heightens the risk that [the person being interrogated] will not be “accorded his privilege under the Fifth Amendment . . . not to be compelled to incriminate himself.”’ [Citation] Custodial police interrogation, by its very nature, isolates and pressures the individual, and there is mounting empirical evidence that these pressures can induce a frighteningly high percentage of people to confess to crimes they never committed.’ [Citation]” (United States v. IMM (9th Cir. 2014) 747 F.3rd 754, 764.)

“The [United States Supreme Court] has stated in summary that to counteract the coercive pressure inherent in custodial surroundings, ‘Miranda announced that police officers must warn a suspect prior to questioning that he has a right to remain silent, and a right to the presence of an attorney. [Citation.] After the warnings are given, if the suspect indicates that he wishes to remain silent, the interrogation must cease. [Citation.] Similarly, if the suspect states that he wants an attorney, the interrogation must cease until an attorney is present. [Citation.] Critically, however, a suspect can waive these rights. [Citation.] To establish a valid waiver, the State must show that the waiver was knowing, intelligent, and voluntary under the “high standar[d] of proof for the waiver of constitutional rights [set forth in] Johnson v. Zerbst [(1938)] 304 U.S. 458 [82 L.Ed. 1461, 58 S.Ct. 1019].” ’ [Citation.]” (People v. Williams (2010) 49 Cal.4th 405, 425; In re Z.A. (2012) 207 Cal.App.4th 1401, 1413-1414.)

We’re talking about “psychological” pressure, even if unintended, exerted upon a person subjected to an in-custody interrogation, and not just “physical abuse.” (Miranda v. Arizona, supra, at pp. 448-455 [16 L.Ed.2nd at pp. 709-712]; In re Elias V. (2015) 237 Cal.App.4th 568, 577; People v. Saldana (2018) 19 Cal.App.5th 432, 437-438.)

“The [Miranda] court expressed concern that the use of psychologically coercive techniques, as well as the inherently coercive effect of incommunicado interrogation, would, in the absence of adequate safeguards, cause persons undergoing interrogation to incriminate themselves involuntarily. [Citation.]” (Italics added; People v. Peevy (1998) 17 Cal.4th 1184, 1191.)

“The foundational theses of Miranda are that ‘the modern practice of in-custody interrogation is psychologically rather than physically oriented’ (Miranda, supra, 384 U.S. at p. 448), and the psychological techniques now employed by interrogators ‘trade[] on the weakness of individuals,’ and ‘may even give rise to a false confession.’ (Miranda v. Arizona, supra, at p. 455 & fn. 24, citing Borchard, Convicting the Innocent (1932).)” (In re Elias V., supra.)

See also Missouri v. Seibert (2004) 542 U.S. 600, 608 [159 L.Ed.2nd 643], criticizing an interrogation tactic (interrogation-warning-interrogation) intended to “exert . . . pressure upon an individual as to disable him from making a free and rational choice.”

Scope of the Miranda Rule:

Limited to Governmental Compulsion: “The Fifth Amendment’s self-incrimination clause states that ‘[n]o person . . . shall be compelled in any criminal case to be a witness against himself.’ (U.S. Const., 5th Amend.) The clause does not, however, ‘establish an unqualified “right to remain silent.” (Salinas v. Texas (2014) 570 U.S. 178, 189 [133 S.Ct. 2174; 186 L.Ed.2nd 376].) (plur. Opn. of Alito, J.) By definition, “a necessary element of compulsory self-incrimination is some kind of compulsion.” (Lakeside v. Oregon (1978) 435 U.S. 333, 339. [55 L.Ed.2nd 319].) The ‘sole’ form of compulsion targeted by the Fifth Amendment privilege is ‘governmental coercion’-not ‘“moral and psychological pressures . . . emanating from sources other than official coercion”’ or the absence of ‘“free choice” in any broader sense of the word.’ (Colorado v. Connelly (1986) 479 U.S. 157, 170 [107 S.Ct. 515; 93 L.Ed.2nd 473].)” (People v. Tom (2014) 59 Cal.4th 1210, 1223; People v. Sultana (1988) 204 Cal.App.3rd 511, 522.)

“Absent police conduct causally related to the confession, there is simply no basis for concluding any state actor has deprived a criminal defendant of due process of law. (United States v. Wolf (9th Cir. 1987) 813 F.2nd 970, 974-975.)”

E.g.: Whether or not defendant suffered from “schizophrenic reaction, schizo affective type with paranoid trends” was irrelevant to the issue of voluntariness absent some allegation of coercive police conduct. (Henderson v. Norris (8th Cir. 1977) 118 F.3rd 1283, 1288.)

“(T)o the extent he suggests his statements were involuntary because at the time of the interviews with police he was under the influence of medication, we reject that claim as well. The due process inquiry focuses on the alleged wrongful and coercive actions of the state, . . . and not the mental state of defendant.” (People v. Weaver (2001) 26 Cal.App.4th 876, 921.)

California now follows the same rule. (People v. Cox (1990) 221 Cal.App.3rd 980, 987; methamphetamine influence; see also (People v. Haskett (1990) 52 Cal.3rd 210, 244; People v. Benson (1990) 52 Cal.3rd 754, 778-779.)

“A finding of coercive police activity is a prerequisite to finding that a confession was involuntary under the federal and state Constitutions. [Citations.]” (People v. Maury (2003) 30 Cal.4th 342, 404.)

Whether or not the defendant might have been affected by what experiences he had (e.g., beating, torture) in his home country of Guatemala, is irrelevant on the issue of voluntariness absent some police misconduct in this case. (People v. Guerra (2006) 37 Cal.4th 1067, 1097.)

However, despite a finding of “coercive police activity,” this does not mean, by itself, that a resulting confession is involuntary. It must also be shown that the statement and inducement are causally linked. (People v. Maury, supra, at pp. 404-405; citing People v. Bradford (1997) 14 Cal.4th 1005, 1041; and People v. Benson, supra, at pp. 778-779. See also People v. Jimenez (2021) 72 Cal.App.5th 712, 726.)

See also United States v. IMM (9th Cir. 2014) 747 F.3rd 754, 764; “Custodial police interrogation, by its very nature, isolates and pressures the individual, and there is mounting empirical evidence that these pressures can induce a frighteningly high percentage of people to confess to crimes they never committed.’ [Citation]”

Even statements obtained by compulsion by a foreign government (e.g., obtained under threat of imprisonment) are inadmissible in a later prosecution in the United States, in that as “compelled” statements, their use in a U.S. prosecution violates the Fifth Amendment. (United States v. Conti (2nd Cir. 2017) 864 F.3rd 63.)

Asserting the Privilege In Prior Proceedings:

The case law is quite clear that a suspect, in or out of custody, can assert his Fifth Amendment rights “in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory . . .”, if it might subject the person to potential criminal liability. (Kastigar v. United States (1972) 406 U.S. 441, 444 [32 L.Ed.2nd 212].)

“It has long been held that this prohibition not only permits a person to refuse to testify against himself at a criminal trial in which he is a defendant but also ‘privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.’ (Lefkowitz v Turley, 414 U.S 70, 77, . . . 38 L.Ed.2nd 274 [1973).” (Minnesota v. Murphy (1984) 465 U.S 420, 426; 79 L.Ed.2nd 409].)

“(A)though the text of the Self-Incrimination Clause at least suggests that ‘its coverage [is limited to] compelled testimony that is used against the defendant in the trial itself,’ [Citation], potential suspects may, at times, assert the privilege in (prior) proceedings in which answers might be used to incriminate them in a subsequent criminal case. [Citations.].” (Italics added; United States v. Patane (2004) 542 U.S. 630, 638 [159 L.Ed.2nd 667].)

Documents: The self-incrimination privilege generally extends to documents:

Rule: The Fifth Amendment protects individuals from having to disclose documents when the very act of production would constitute self-incrimination. (United States v. Bright (9th Cir. 2010) 596 F.3rd 683, 688.)

“The Fifth Amendment grants persons the privilege not to ‘provide the State with [self-incriminatory] evidence of a testimonial or communicative nature.’’ (Id., at p. 692; quoting United States v. Rodriguez-Rodriguez (9th Cir. 2006) 441 F.3rd 767, 772.)

Exceptions: There are exceptions, however:

Bank Records: See Doe v. United States (1988) 487 U.S. 201 [101 L.Ed.2nd 184], where the Court upheld an order directing defendant to sign a consent directive authorizing banks in the Cayman Islands and Bermuda to disclose records of his accounts. The Court found that compelling defendant to sign the consent directive was not protected by the privilege against self-incrimination because neither the form itself nor the act of signing it were testimonial communications. Compelling defendant to sign the form was “more like ‘be[ing] forced to surrender a key to a strongbox containing incriminating documents’ than it is like ‘be[ing] compelled to reveal the combination to [petitioner’s] wall safe.’” (Id., at p. 219, fn. 9.)

See also the dissenting opinion by Justice Stevens at pp. 219-221, arguing that defendant cannot “be compelled to use his mind to assist the prosecution in convicting him of a crime . . . . He may in some cases be forced to surrender a key to a strongbox containing incriminating documents, but I do not believe he can be compelled to reveal the combination to his wall safe—by word or deed,” and that being forced to sign a consent directive authorizing banks to disclose records of his accounts was tantamount to being forced to reveal the combination to a wall safe.

Corporations: A corporation is not a “person” for purposes of the privilege against self-incrimination. (Hale v. Henkel (1906) 201 U.S. 43, 75 [50 L.Ed. 652]; overruled in part on other grounds in Murphy v. Waterfront Comm’n. (1964) 378 U.S. 52 [12 L.Ed.2nd 678], and United States v. While (1944) 322 U.S. 694, 699 [88 L.Ed. 1542].)

The “collective entity rule” provides that “representatives of a collective entity act as agents, and the official records of the organization that are held by them in a representative rather than a personal capacity cannot be the subject of their personal privilege against self-incrimination, even though production of the papers might tend to incriminate them personally . . . Any claim of Fifth Amendment privilege asserted by the agent would be tantamount to a claim of privilege by the corporation, which possesses no such privilege.” (Braswell, supra, 487 U.S. at pp. 99–100.) Thus, while business records of a sole proprietor or practitioner may be protected from release by the Fifth Amendment, an individual ‘cannot rely upon the privilege to avoid producing the records of a collective entity which are in his possession in a representative capacity, even if these records might incriminate him personally.’” (Id., at pp. 851-852; citing Bellis v. United States (1974) 417 U.S. 85, 88, 93–101 [40 L.Ed.2nd 678].)

A custodian of corporate records may not resist a grand jury subpoena for such records on the ground that the act of production would incriminate him under the Fifth Amendment. (Braswell v. United States (1988) 487 U.S. 99 [101 L.Ed.2nd 98].)

In In re Twelve Grand Jury Subpoenas (9th Cir. 2018) 908 F.3rd 525, the federal district court held appellant in contempt for his failure to comply with the court’s order to respond to twelve grand jury subpoenas in his capacity as a records custodian for various corporate entities. He appealed that order, arguing that, because the corporations and limited liability companies (“LLCs”) are small, closely held entities for which he is either the sole shareholder or sole employee, or is solely responsible for accounting and record keeping, he may invoke the Fifth Amendment privilege against self-incrimination to resist producing those collective entities’ documents. The Ninth Circuit disagreed, reaffirming the rule in Braswell v. United States (1988) 487 U.S. 99 [101 L.Ed.2nd 98], and holding that the Fifth Amendment provides no protection to a collective entity’s records custodians, and that the size of the collective entity and the extent to which a jury would assume that the individual seeking to assert the privilege produced the documents are not relevant.

Tax Returns: Where defendant invoked the Fifth Amendment as a means of avoiding the necessity of filing a tax return, the Supreme Court held that he could not do so. Convicted of willfully refusing to make a return of his net income as required by the Revenue Act of 1921, defendant argued that because his income was derived from the illicit traffic in liquor in violation of the National Prohibition Act, the Fifth Amendment self-incrimination privilege protected him from having to file a return. The Supreme Court disagreed, ruling that it would be an extreme application of the Fifth Amendment to say that it authorized defendant to refuse to report his income because it had been made from crime. If the return called for answers that defendant was privileged from making, he could have raised his objections in the return. But he could not refuse to file any return at all. (United States v. Sullivan (1927) 274 U.S. 259 [71 L.Ed. 1037].)

Marijuana Entities: A trial court properly denied an application by defendants—a medical marijuana collective and its president—for a preliminary injunction against a city’s attempts to stop them from operating the collective because there was no likelihood they would ultimately prevail in the city’s action to collect unpaid marijuana business taxes or on their cross-complaint. Although defendants contended that payment of the marijuana business tax would force the president to incriminate himself in violation of his Fifth Amendment privilege by admitting liability for violating federal drug laws, the self-incrimination privilege did not apply because the tax was not the obligation of the president, but rather belonged to the collective. Under the “collective entity rule,” the president could not assert the Fifth Amendment to resist the tax. (City of San Jose v. Medimarts, Inc. (2016) 1 Cal.App.5th 842, 848-854.)

Passwords to Electronic Devices:

In Fisher v. United States (1976) 425 U.S. 391 [96 S.Ct. 1569; 48 L.Ed.2nd 39], the U.S. Supreme Court stated that “[t]he act of producing evidence in response to a subpoena . . . has communicative aspects of its own, wholly aside from the contents of the papers produced.” 425 U.S. at 410. The act of production may, therefore, be testimonial and protected by the Fifth Amendment.”

The rule of Fisher has been extended to passwords used to prevent third-party access to cellphones and other electronic devices:

Requiring defendant to provide “. . . all passwords used or associated with the . . . computer . . . and any files” held to be a Fifth Amendment self-incrimination violation in that testimony providing a password is a “testimonial communication” because it reveals the “contents of the mind.” “In this case, the government is not seeking documents or objects—it is seeking testimony from the defendant, requiring him to divulge through his mental processes his password—that will be used to incriminate him.” The court reasoned that compelling defendant to testify to the password is more like compelling him to provide the combination to the wall safe than the key to the strongbox containing incriminating documents. Any files or data discovered by accessing the computer would be a “derivative use” of the illegally compelled testimonial evidence concerning the password. (United States v. Kirschner (Mich. 2010) 823 F. Supp.2nd 665.)

Defendant’s forced decryption of his hard drives and production of the files would have been tantamount to his testimony of knowing the existence and location of potentially incriminating files, his possession, control, and access to the encrypted items, and his ability to decrypt. It therefore triggered his Fifth Amendment privilege against self-incrimination. (United States v. Doe (In re Grand Jury Subpoena Duces Tecum) (11th Cir. 2012) 670 F.3rd 1335.)

The Fifth Amendment self-incrimination privilege protects a person from being compelled to provide a password (i.e., numeric or alpha-numeric passcodes) to his or her cellphone or other electronic device, in that such information qualifies as a “testimonial communication.” (In re Search of a Residence in Oakland (N.D. Cal. 2019) 354 F.Supp.3rd 1010, 1014-1016.)

But there is case law tending to indicate to the contrary:

The Third Circuit Court of Appeal held that “the Magistrate Judge had subject matter jurisdiction under Federal Rule of Criminal Procedure 41 to issue a search warrant for the search of defendant’s encrypted computers and attached hard drives, and therefore had jurisdiction to issue an order under the All Writs Act that sought ‘to effectuate and prevent the frustration’ of that warrant.” “When law enforcement could not decrypt the contents of those devices, and Doe refused to comply, the Magistrate Judge issued the Decryption Order pursuant to the All Writs Act. The Decryption Order required Doe to ‘assist the Government in the execution of the . . . search warrant’ by producing his devices in ‘a fully unencrypted state.’ . . . the Decryption Order here was a necessary and appropriate means of effectuating the original search warrant.” The Court further upheld the Magistrate Judge’s ruling that requiring defendant to provide the necessary passwords did not violate the Fifth Amendment in that the requested information was not “testimonial.” (United States v. Apple Mac Pro Computer, John Doe, et al. (3rd Cir. 2017) 851 F.3rd 238.)

Use of Biometric Features In Lieu of Passcodes:

In noting the issue to be one of first impression, the Minnesota Supreme Court has held that a suspect’s act of providing a fingerprint to the police to unlock a cellphone was in fact not a testimonial communication. This is because the compelled act of providing a fingerprint elicited only physical evidence from defendant’s body and did not reveal the contents of his mind. Thus, by not constituting a “testimonial communication,” the compelled use of a biometric feature to open the defendant’s cellphone did not violate the Fifth Amendment privilege against self-incrimination. (Minnesota v. Diamond (2018) 905 N.W.2nd 870.)

Where police seized the defendant’s cellphone from his home pursuant to a search warrant but were unable to examine its contents because it was locked and encrypted, the government filed a motion seeking to compel the defendant to either produce his passcode or to provide his fingerprint, either of which could unlock the phone. The trial court denied the motion as to the passcode, holding that compelled disclosure would be testimonial and thus barred by the Fifth Amendment. However, the court granted the motion as to the fingerprint. In upholding this ruling, the Virginia Appellate Court noted that the Fifth Amendment does not prohibit compelling a defendant to exhibit, and to permit the government to document, physical characteristics such as by submitting to fingerprinting, standing for a photograph, making a voice recording, or providing a blood sample. The Court found this to be no different than requiring a defendant to use his biometric features to unlock a cellphone. After pointing out that the production of a fingerprint, unlike a passcode, did not require defendant to communicate any knowledge at all and thus is not testimonial, the court concluded that the defendant could be compelled to unlock the phone via his fingerprint consistent with the Fifth Amendment. (Commonwealth of Virginia v. Baust (Va. Cir. Ct. 2014) 89 Va. Cir. 267.

However, a federal district court magistrate judge ruled that compelling a subject through a magistrate’s order in a search warrant to use his biometric features (e.g., fingerprint, iris, or facial recognition technology) to unlock an electronic device is testimonial (i.e., a “testimonial communication”) in nature and a violation of the Fifth Amendment absent a waiver. (In re Search of a Residence in Oakland (N.D. Cal. 2019) 354 F.Supp.3rd 1010, 1014-1016.)

“While securing digital devices is not a novel concept, the means of doing so have changed. Indeed, consumers have had the ability to utilize numeric or alpha-numeric passcodes to lock their devices for decades. Courts that have addressed the passcode issue have found that a passcode cannot be compelled under the Fifth Amendment, because the act of communicating the passcode is testimonial, as ‘[t]he expression of the contents of an individual’s mind falls squarely within the protection of the Fifth Amendment.” See Doe v. United States, 487 U.S. 201, 219, 108 S.Ct. 2341, 101 L.Ed.2nd 184 (1988) (Stevens, J., dissenting) (citing Boyd v. United States, 116 U.S. 616, 633-635, 6 S.Ct. 524, 29 L.Ed. 746 (1886); Fisher v. United States, 425 U.S. 391, 420, 96 S.Ct. 1569, 48 L.Ed.2nd 39 (1976)); see also United States v. Kirschner, 823 F. Supp. 2nd 665, 669 (E.D. Mich. 2010) (citing Doe, 487 U.S. at 208 n. 6); Commonwealth. v. Baust, 89 Va. Cir. 267 (2014). Today, technology has provided citizens with shortcuts to entering passcodes by utilizing biometric features. The question, then, is whether a suspect can be compelled to use his finger, thumb, iris, or other biometric feature to unlock a digital device.” (In re Search of a Residence in Oakland, supra, at p. 1015.)

The Court answered this question in the negative, citing the Fifth Amendment self-incrimination privilege, and differentiating “testimonial” or “communicative” acts from being forced to provide “real or physical evidence.” (Id., at pp. 1015-1016.)

See also In re Application for a Search Warrant (N.D. Ill. 2017) 236 F. Supp.3rd 1066, at p. 1073: “With a touch of a finger, a suspect is (in effect) testifying that he or she has accessed the phone before, at a minimum, to set up the fingerprint password capabilities, and that he or she currently has some level of control over or relatively significant connection to the phone and its contents.”

See “https://www.lawfareblog.com/fifth-amendment-decryption-and-biometric-passcodes,” for a Harvard Law School student’s analysis of the issue.

The “Foregone Conclusion” Doctrine: An exception applies when the existence and location of the documents are a “foregone conclusion.”

In Fisher v. United States (1976) 425 U.S. 391, 411 [96 S.Ct. 1569; 48 L.Ed.2nd 39] (see above), the Supreme Court also discussed the “foregone conclusion” rule, which acts as an exception to the otherwise applicable act-of-production doctrine. Under this rule, the Fifth Amendment does not protect an act of production when any potentially testimonial component of the act of production—such as the existence, custody, and authenticity of evidence—is a “foregone conclusion” that “adds little or nothing to the sum total of the Government’s information.” 425 U.S. at 411. For the rule to apply, the Government must be able to “describe with reasonable particularity” the documents or evidence it seeks to compel. (See also United States v. Hubbell (2000) 530 U.S. 27, 30 [120 S.Ct. 2037; 147 L.Ed.2nd 24].)

See also United States v. Bright (9th Cir. 2010) 596 F.3rd 683:

“(W)here ‘[t]he existence and location of the papers are a foregone conclusion and the taxpayer adds little or nothing to the sum total of the Government’s information by conceding that he in fact has the papers[,] . . . enforcement of the summons’ does not touch upon constitutional rights.” (Id., at p. 692.)

“(T)he testimonial aspect of production is minimized if not eliminated when the existence, ownership, control, or authenticity of the document (or thing) is a ‘forgone [gone]’ conclusion.” (United States v. Pearson (N.D.N.Y. 2006) 2006 U.S. Dist. LEXIS 32982; upholding subpoenas for “(a)ny and all passwords, keys, and/or log-ins used to encrypt any and all (computer) files, . . .”)

See also In re: Grand Jury Subpoena to Boucher (D. Vt. 2009) 2009 U.S. Dist. LEXIS 13006; and United States v. Fricosu (D. Colo. 2012) 841 F. Supp.2nd 1232, for further applications of the “Foregone Conclusion” doctrine.

But see In re: Grand Jury Subpoena Duces Tecum Dated March 25, 2011: U.S. v. John Doe (11th Cir. 2012) 670 F.3d 1335: The “foregone conclusion” doctrine was held to be inapplicable where a search warrant was issued to seize all digital media, as well as any encryption devices or codes necessary to access such media, and where certain portions of the data on the hard drives of defendant’s seized laptops and external hard drives were encrypted and inaccessible. The Court held that the “foregone conclusion” doctrine was not applicable because the explicit and implicit factual communications associated with decryption and production were not foregone conclusions. The government failed to show with “reasonable certainty” that it knew any files existed at all (the specific file name is not necessary), knew any files were located on the encrypted hard drives, could independently authenticate any such files, or that defendant could access and decrypt any such files.

Employing the “foregone conclusion” theory, the Third Circuit Court of Appeal held that “the Magistrate Judge had subject matter jurisdiction under Federal Rule of Criminal Procedure 41 to issue a search warrant for the search of defendant’s encrypted computers and attached hard drives, and therefore had jurisdiction to issue an order under the All Writs Act that sought ‘to effectuate and prevent the frustration’ of that warrant.” “When law enforcement could not decrypt the contents of those devices, and Doe refused to comply, the Magistrate Judge issued the Decryption Order pursuant to the All Writs Act. The Decryption Order required Doe to ‘assist the Government in the execution of the . . . search warrant’ by producing his devices in ‘a fully unencrypted state.’ . . . the Decryption Order here was a necessary and appropriate means of effectuating the original search warrant.” The Court further upheld the Magistrate Judge’s ruling that requiring defendant to provide the necessary passwords did not violate the Fifth Amendment in that the requested information was not “testimonial.” (United States v. Apple Mac Pro Computer, John Doe, et al. (3rd Cir. 2017) 851 F.3rd 238.)

The Third Circuit concluded that the Government had provided evidence amply supported by the record sufficient to establish the “foregone conclusion” doctrine.

a. The Government had lawful custody of the devices which were seized pursuant to a valid search warrant.

b. Prior to the seizure, Doe possessed, accessed, and owned all of the devices.

1) Doe did not dispute their existence or his ownership of the devices.

2) Doe’s sister stated that he had in her presence opened the devices, accessed the data by entering passwords from memory, and shown her images.

3) Doe had provided the Government with access to the data on some of the devices by entering multiple passwords from memory.

c. There are images on the devices that constitute child pornography.

1) The investigation led to the identification of Doe as a user of an internet file sharing network that was used to access child pornography.

2) Forensic analysis showed that the Mac Pro had been used to visit sites common in child exploitation.

3) Doe’s sister stated that he had shown her hundreds of pictures and videos child pornography images from the devices.

4) Forensic analysis showed that Doe had downloaded thousands of files known by their “hash” values to be child pornography.

The “foregone conclusion” doctrine is inapplicable to searches of cellphones and other electronic devices, such devices not being comparable to other storage equipment, be it physical or digital, and are thus entitled to greater privacy protection. (In re Search of a Residence in Oakland (N.D. Cal. 2019) 354 F.Supp.3rd 1010, 1014-1016-1018.)

Where defendant was indicted on healthcare fraud and money laundering charges, a pre-trial repatriation order requiring defendant to repatriate any proceeds that he may have transferred to any African bank during a three-year period, up to $7,287,000, violated defendant’s Fifth Amendment privilege against self-incrimination because the order compelled defendant to incriminate himself by personally identifying, and demonstrating his control over, untold amounts of money located in places the government may not have been aware of. The federal district court failed to apply the proper “foregone conclusion” exception test, relieving the government of its obligation to prove its prior knowledge of the incriminating information that could be implicitly communicated by repatriation. The government’s narrow promise of limited use immunity was insufficient to counterbalance these harms. (United States v. Oriho (9th Cir. Aug. 10, 2020) __ F.3rd __ [2020 U.S. App. 25232].)

A court order requiring defendant to disclose the passcodes to his passcode-protected cellphones did not violate the Fifth Amendment because even though it was a testimonial act, it was held to be permissible by the New Jersey Supreme Court under the “foregone conclusion” test where the issue here was one of surrender rather than testimony. Further, the order did not violate New Jersey law. (State v. Andrews (2020) 243 N.J. 447.)

Real and Physical Evidence:

The Fifth Amendment right “does not protect a suspect from being compelled by the State to produce ‘real or physical evidence.’” (Pennsylvania v. Muniz (1990) 496 U.S. 582, 589 [110 L.Ed.2nd 528; 110 S.Ct. 2638]; see also Schmerber v. California (1966) 384 U.S. 757, 766 [16 L.Ed.2nd 908, 917]; People v. Elizalde et al. (2015) 61 Cal.4th 523, 532; People v. Sudduth (1966) 65 Cal.2nd 543, 546; blood or breath in a DUI case.)

Examples of “real or physical evidence” include fingerprints, photographs, handwriting exemplars, blood samples, standing in a lineup, or speaking for voice identification. (People v. Elizalde et al., supra; citing Pennsylvania v. Muniz, supra, at pp. 591–592.)

Burden of Proof:

It is the prosecution’s burden to prove, by a preponderance of the evidence, that the accused’s rights under Miranda were not violated. (Lego v. Twomey (1972) 404 U.S. 477, 489 [30 L.Ed.2nd 618, 627]; People v. Sapp (2003) 31 Cal.4th 240, 267; People v. Bradford (1997) 14 Cal.4th 1005, 1033; People v. Villasenor (2015) 242 Cal.App.4th 42, 59; People v. Peoples (2016) 62 Cal.4th 718, 740.)

Limitations on the Need for Miranda: Given the declared justifications for having a “Miranda Rule,” courts should guard against a blind application of the rule without considering the need for its use in any particular factual setting; I.e.: To insure that an in-custody criminal suspect, in an incommunicado, police-dominated atmosphere, is aware of his or her constitutional rights as they relate to self-incrimination and the right to an attorney’s assistance during the interrogation process, so that he or she may knowingly and intelligently choose whether, and to what extent, he or she wishes to waive those rights and cooperate in an interrogation conducted by law enforcement.

“Fidelity to the doctrine announced in Miranda requires that it be enforced strictly, but only in those types of situations in which the concerns that powered the decision are implicated.” (Berkemer v. McCarty (1984) 468 U.S. 420, 437 [82 L.Ed.2nd 317, 333].)

A Miranda admonishment and waiver is necessary only when a criminal suspect is subjected to the coerciveness which is inherent in any “incommunicado, police-dominated” interrogation.

“An individual swept from familiar surroundings into police custody, surrounded by antagonistic forces, and subjected to the techniques of persuasion described (elsewhere in the decision) cannot be otherwise than under compulsion to speak.” (Miranda v. Arizona, supra, at p. 461 [16 L.Ed.2nd at p. 716]; see also Missouri v. Seibert (2004) 542 U.S. 600 [159 L.Ed.2nd 643].)

In deciding whether a conversation between a police officer and a criminal suspect is an “interrogation,” a court must keep in mind the purpose behind the Miranda and the Edwards (i.e., Edwards v. Arizona (1981) 451 U.S. 477, 482 [101 S.Ct. 1880; 68 L.Ed.2nd 378, 385]; prior invocation of right to counsel preventing any further interrogation.) decisions, and that is to prevent officials from using the coercive nature of confinement to extract confessions that would otherwise not have been given in an unrestrained environment. (People v. Dement (2011) 53 Cal.4th 1, 26.)

“One of the Court’s primary concerns in Miranda was the temptation for law enforcement officers, operating with little or no supervision over their investigative actions, to overbear the will of a defendant in an isolated custodial interrogation setting.” (Sessoms v. Grounds (9th Cir. 2015) 776 F.3rd 615, 621; citing Miranda v. Arizona, supra, 384 U.S. at 461, 466.)

“The purpose of the rule in Edwards (i.e., Edwards v. Arizona (1981) 451 U.S. 477, 482 [101 S.Ct. 1880; 68 L.Ed.2nd 378, 385]; prior invocation of right to counsel preventing any further interrogation.) is to preserve ‘the integrity of an accused’s choice to communicate with police only through counsel,’ [citation], by ‘prevent[ing] police from badgering a defendant into waiving his previously asserted Miranda rights,’ [citation].’” (Citation) It ‘is not a constitutional mandate, but judicially prescribed prophylaxis.’ (Id. at p. 105.)” (People v. Bridgeford (2015) 241 Cal.App.4th 887, 900; citing Maryland v. Shatzer (2010) 559 U.S. 98, 106 [175 L.Ed.2nd 1045].)

Take away this “tension factor,” and the suspect may then be questioned concerning his or her potential criminal liability without violating any constitutional protections. This can be done either:

Through a Miranda admonishment and waiver; or

Through some other circumstance which eliminates, or at least minimizes “custody;” i.e., the fear and inherent coerciveness of the interrogation situation and going to jail (See “The ‘Beheler Admonishment;’ or Taking the ‘Custody’ Out of An Interrogation,” under “Custody” (Chapter 2, below); or

If already a jail inmate, setting up an interview while eliminating, or at least minimizing, the fear of being charged with a new criminal offense. (See “Miranda and the Jail Inmate,” below.)

Guarding Against a False Confession: It is increasingly being recognized that skilled interrogators have the ability to push in-custody suspects to the point where the obtaining of a false confession is entirely possible, where the suspect eventually will tell his or her interrogators whatever it is that they want if, for no other reason, to end the questioning.

“‘[C]ustodial police interrogation, by its very nature, isolates and pressures the individual,’ Dickerson (v. United States (2000)) 530 U.S. 428, at 435, 120 S.Ct. 2326, 147 L.Ed.2nd 405, and there is mounting empirical [33] evidence that these pressures can induce a frighteningly high percentage of people to confess to crimes they never committed, see, e.g., Drizin & Leo, The Problem of False Confessions in the Post-DNA World, 82 N. C. L. Rev. 891, 906-907 (2004).” (Corley v. United States (2009) 556 U.S. 303, 320-321 [173 L.Ed.2nd 443].)

“The pressure of custodial interrogation is so immense that it can induce a frighteningly high percentage of people to confess to crimes they never committed,” particularly when the suspect is a juvenile. (In re Joseph H. (2015) 237 Cal.App.4th 517, 531.)

“The power of these interrogation techniques to extract a confession is keenly described in Miranda. (Miranda, supra, 384 U.S. at pp. 445-455.) Since Mirandahttps://advance.lexis.com/search/ pdmfid=1000516&crid=f00c81c6-81aa-441c-ab72-3dc2a42d8361&pdsearchterms=2018+Cal.App.+LEXIS+29&pdstartin=hlct%3A1%3A2&pdtypeofsearch=searchboxclick&pdsearchtype=SearchBox&pdqttype=and&pdpsf=&ecomp=s81d9kk&earg=pdpsf&prid=5b7c5f0a-2563-47e3-9d3e-1d52a1311b15, the United States Supreme Court has expressed concern that such interrogation ‘can induce a frighteningly high percentage of people to confess to crimes they never committed.’ (Corley v. United States (2009) 556 U.S. 303, 321.) ‘Estimates of false confessions as the . . . cause of error in wrongful conviction cases range from 14 to 25 percent.’ (In re) Elias V. ((2015)) 237 Cal.App.4th (568) at p. 578.)” People v. Saldana (2018) 19 Cal.App.5th 432, 437-438.)

Experts are available (e.g., Psychologist Ricardo Winkel) who will testify on the issue of “suggestibility within the context of false confessions.” In one case involving a defendant who confessed to molesting two young children, Dr. Winkel was to testify (although the trial court erroneously excluded his testimony) that research has shown that people “confess to things they didn’t do, including terrible crimes.” Per Dr. Winkel, factors or variables that may make a person more susceptible to giving a false confession include low education level, having cognitive deficits, being interrogated in a non-native language, having a passive, compliant, or dependent personality, and lacking experience with law enforcement. Dr. Winkel is also of the opinion that, “(e)ach of these variables separately could contribute to making a person susceptible. The more variables you have, the higher the likelihood the person would [falsely confess]. Sometimes it increases geometrically or exponentially.” Emotional state, such as being anxious or depressed, is another factor. A skillful investigator may obtain a false confession “without any undue coercion [or] anything untoward” and that “there are cases where people [falsely] confess not because . . . of the actions of the investigator, but because of something in them.” (People v. Caparaz (June 30, 2022) __ Cal.App.5th __, __ [2022 Cal.App. LEXIS 579].)

See “Juveniles and False Confessions,” under “Miranda Protections as They Relate to Juveniles,” under “Juveniles & Miranda” (Chapter 10), below.

Miranda Becoming Routine Practice:

Despite an immediate and overwhelming reluctance by law enforcement to willingly comply with what was considered by many legal scholars as an unwarranted extension of the Fifth Amendment self-incrimination privilege, “Miranda has (since) become embedded in routine police practice to the point where the warnings have become part of our national culture. [Citation]” (Dickerson v. United States (2000) 530 U.S. 428, 443 [120 S.Ct. 2326; 147 L.Ed.2nd 405, 419].)

Note: But the rules surrounding the application of the Miranda requirements are anything but simple, with time and a multitude of court decisions on the issue doing nothing to increase law enforcement’s understanding and consistent compliance with its requirements.

“The basic rule of (Miranda), and its progeny, is familiar: Under the Fifth Amendment to the federal Constitution, as applied to the states through the Fourteenth Amendment, ‘[n]o person . . . shall be compelled in any criminal case to be a witness against himself (or herself) . . . .’ (Citation.) ‘In order to combat (the) pressures (of custodial interrogation) and to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his (or her) rights’ to remain silent and to have the assistance of counsel. (Citation.) ‘(I)f the accused indicates in any manner that he (or she) wishes to remain silent or to consult an attorney, interrogation must cease, and any statement obtained from him (or her) during interrogation thereafter may not be admitted against him (or her) at his (or her) trial’ (citation), at least during the prosecution's case-in-chief (citations).” (People v. Lessie (2010) 47 Cal.4th 1152, 1162.)

Good Faith: However, note that an officer’s “good faith,” as applied to some Fourth Amendment situations, does not apply to a Miranda violation. (People v. Smith (1995) 31 Cal.App.4th 1185, 1191-1194; “(The) fundamental difference in the theoretical underpinnings of the Fourth and Fifth Amendment exclusionary rules persuades against application of the ‘good faith’ exception in Fifth Amendments (sic) cases.” (pg. 1193))

Incompetence of Counsel:

Failure of a defendant’s attorney to challenge the admissibility of statements obtained as the product of an admitted violation of Miranda, even if defendant might have repeated his confession to other acquaintances, and even if not challenging the confession might have affected his plea bargaining position only (given the value of a recorded confession to police verses the same story being testified to by acquaintances whose memory and credibility were unknown), constitutes incompetence of defense counsel and grounds for granting a writ of habeas corpus. (Moore v Czerniak (9th Cir. 2009) 574 F.3rd 1092.)

A defendant who represents herself cannot later complain on appeal that an issue was not properly raised at the trial court level, and thus has waived that issue, even if she had counsel at one point who had the opportunity to raise the issue and should have, so long as she also had the opportunity to raise it herself while representing herself. (People v. Polk (2010) 190 Cal.App.4th 1183, 1195-1196; i.e., an inadequate advisal of her Miranda rights which, because not raised at the trial level, allowed for the admission of incriminating statements that should have been suppressed.)

See also Cook v. Ryan (9th Cir. 2012) 688 F.3rd 598.

After initially waving his rights, defendant told detectives, “I refuse to talk to you guys” clearly and unequivocally invoking his right to silence. Counsel’s inaction in failing to object to admission of defendant’s recorded confession to murder resulted in a prejudicial denial of effective assistance of counsel as to defendant’s first degree murder conviction, as the prosecutor relied upon the confession heavily in her arguments to the jury. (People v. Bichara (2017) 7 Cal.App.5th 1261, 1277-1284.)

Prerequisites to a Miranda Admonishment:

The Three Legal Prerequisites: It is generally recognized that a Miranda admonishment and waiver is unnecessary unless all three of the following legal prerequisites are present at the same time:

The suspect is in custody (See “Custody” (Chapter 2), below);

An interrogation is imminent (See “The Custodial Interrogation” (Chapter 3), below; and

The questioning is conducted by law enforcement (or an agent of law enforcement) (See “Law Enforcement” (Chapter 4), below).

Analyzing the Prerequisites: These legal prerequisites, however, when analyzed, are not as simple as might first appear.

Care must be taken to carefully analyze “all the surrounding circumstances” of any custody, advisal, waiver, and interrogation to determine whether any resulting statements from a criminal suspect were in fact lawfully obtained. (E.g., see United States v. Kim (9th Cir. 2002) 292 F.3rd 969, 974.)

These factors include: “(1) the language used to summon the individual; (2) the extent to which the defendant is confronted with evidence of guilt; (3) the physical surroundings of the interrogation; (4) the duration of the detention; and (5) the degree of pressure applied to detain the individual.” (Ibid.; see also United States v. Mora-Alcaraz (9th Cir. 2021) 986 F.3rd 1151, 1156.)

This issue (i.e.: Is the suspect subjected to a “custodial interrogation requiring a Miranda admonishment ”) is one of “mixed law and fact,” and will be subject to litigation and second-guessing by attorneys, the trial court, and the appellate courts. (Thompson v. Keohane (1995) 516 U.S. 99, 101-116 [133 L.Ed.2nd 383].)

Therefore, in close cases, it is always best to err on the side of caution and admonish the suspect and attempt to obtain a free and voluntary waiver whenever a criminal suspect is to be questioned. The Courts in Miranda and many other cases (e.g., People v. Peevy (1998) 17 Cal.4th 1184; People v Neal (2003) 31 Cal.4th 63; and People v. Jablonski (2006) 37 Cal.4th 774, 817; People v. Nguyen (2015) 61 Cal. 4th 1015, 1077-1078.) have demanded that we respect this general rule.

Tactical Advice: Rather than relying upon, or hoping for, a correct legal analysis and an informed decision by the trial court, it is always best for law enforcement to consider the following:

If a subject who is to be interrogated appears to be cooperative and ready to waive, administer a Miranda admonishment and obtain a waiver, thus eliminating the issue altogether.

If, however, the subject appears to be uncooperative and not likely to waive, consider taking the coerciveness (i.e., the “custody”) out of the interrogation by simply informing him that he is not under arrest (e.g.; see California v. Beheler (1983) 463 U.S. 1121, 1125 [103 S.Ct. 3517; 77 L.Ed.2nd 1275].), when practical to do so under the circumstances, ensuring at the same to minimize or eliminate all the other attributes of an arrest situation (e.g., handcuffs, exposed weapons, locked doors, too many officers present, accusatory questioning (see “The Non-Custodial Interrogation,” under “Custody” [Chapter 2, below], etc.), and interview the subject without a Miranda admonishment and waiver.

If the person has already been formally arrested, and is uncooperative and unlikely to waive his constitutional rights, the only tactic left is to postpone questioning until he has settled down, being careful not to do anything affirmatively to put him in a better frame of mine. (See People v. Honeycutt (1977) 20 Cal.3rd 150, finding the intentional softening up of a suspect to be improper, and a tactic which cannot lead to a knowing and intelligent waiver of rights.)

Rule: A Miranda admonishment and waiver should be the general rule, using other interrogation techniques (e.g., a “Beheler admonishment;” see below) only when dictated by the circumstances.

Chapter 2: Custody

The Non-Custodial Interrogation:

Rule: If a suspect is not “in custody,” he need not be “Mirandized” prior to questioning. (United States v. Salvo (6th Cir. 1998) 133 F.3rd 943, 948; People v. Pilster (2006) 138 Cal.App.4th 1395; Dyer v. Hornbeck (9th Cir. 2013) 706 F.3rd 1134, 1137-1145; People v. Zaragoza (2016) 1 Cal.5th 21, 56-57.)

Note: The verb, to “Mirandize” is, of course, no more than a term of art referring to the process of administering an admonishment of the applicable constitutional rights as described in the Miranda decision.

“The obligation to administer Miranda warnings attaches only when the person questioned is in ‘custody.’” (People v. Saldana (2018) 19 Cal.App.5th 432, 454, citing, Stansbury v. California (1994) 511 U.S. 318, 322 [128 L.Ed.2nd 293, 298].)

Where there is no custody, there are none of the inherent pressures of the “incommunicado interrogation” that Miranda was intended to address. “In Miranda jurisprudence, custody is ‘a term of art that specifies circumstances that are thought generally to present a serious danger of coercion.’ (People v. Saldana, supra, quoting Howes v. Fields (2012) 565 U.S. 499, 508-509 [132 S.Ct. 1181; 182 L.Ed.2nd 17].)

“When circumstances demand immediate investigation by the police, the most useful, most available tool for such investigation is general on-the-scene questioning, designed to bring out the person’s explanation or lack of explanation of the circumstance which aroused the suspicion of the police, and enable the police to quickly determine whether they should allow the suspect to go about his business or hold him to answer charges.” (People v. Manis (1969) 268 Cal.App.2nd 653, 665; see also People v. Davidson (2013) 221 Cal. App.4th 966, 968.)

See also United States v. Patterson (7th Cir. 2016) 826 F.3rd 450; a temporary and relatively non-threatening detention involved in a Terry stop (i.e., a temporary detention for investigation) does not constitute Miranda custody. In addition, in the Seventh Circuit, it has been repeatedly held that a “Terry frisk” (defendant having been patted down for firearms prior to a consensual transportation) does not establish custody for Miranda purposes. (Referring to Terry v. Ohio (1968) 392 U.S. 1 [88 S.Ct. 1868; 20 L.Ed.2nd 889].)

The Custodial Interrogation:

Definition of “Custody:”

Rule: For purposes of Miranda, a person is in custody when he or she has been “deprived of his (or her) freedom in any significant way.” (Miranda v. Arizona, supra, at p. 444 [16 L.Ed.2nd at p. 706]; People v. Arnold (1967) 66 Cal.2nd 438, 448; People v. Kopatz (2015) 61 Cal.4th 62, 80; People v. Elizalde et al. (2015) 61 Cal.4th 523, 531.)

“‘An interrogation is custodial, for purposes of requiring advisements under Miranda, when “a person has been taken into custody or otherwise deprived of his [or her] freedom of action in any significant way.” [Citation.] Custody consists of a formal arrest or a restraint on freedom of movement of the degree associated with a formal arrest. [Citations.] When there has been no formal arrest, the question is how a reasonable person in the defendant’s position would have understood his [or her] situation. [Citation.] All the circumstances of the interrogation are relevant to this inquiry, including the location, length and form of the interrogation, the degree to which the investigation was focused on the defendant, and whether any indicia of arrest were present. [Citation.]’” (People v. Potter (2021) 66 Cal.App.5th 528, 539; quoting People v. Moore (2011) 51 Cal.4th 386, 394–395.)

Test: Whether or not a person is in custody for purposes of Miranda depends upon “[H]ow a reasonable man (or woman) in the suspect’s shoes would have understood his (or her) situation.” (Emphasis added; Berkemer v. McCarty (1984) 468 U.S. 420, 442 [82 L.Ed.2nd 317, 336]; People v. Boyer (1989) 48 Cal.3rd 247, 272; In re Kenneth S. (2005) 133 Cal.App.4th 54; People v. Bejasa (2012) 205 Cal.App.4th 26, 35; People v. Kopatz (2015) 61 Cal.4th 62, 80; In re I.F. (2018) 20 Cal.App.5th 735, 759; In re Matthew W. (2021) 66 Cal.App.5th 392, 405.)

Which Means . . . : This in turn has been held to mean that a person is not in custody unless:

“He has been formally arrested, or there exists a restraint on freedom of movement of the degree associated with a formal arrest.” (California v. Beheler (1983) 463 U.S. 1121, 1125 [103 S.Ct. 3517; 77 L.Ed.2nd 1275, 1279]; People v. Pilster (2006) 138 Cal.App.4th 1395; People v. Linton (2013) 56 Cal.4th 1146, 1167; In re Anthony L. (2019) 43 Cal.App.5th 438, 445.); or

“(W)hen, under the totality of the circumstances, the ‘suspect’s freedom of action is curtailed to a “degree associated with formal arrest.”’ (Citation)” (United States v. Howard (4th Cir. 1997) 115 F.3rd 1151, 1154; People v. Moore (2011) 51 Cal.4th 386, 395; People v. Linton, supra.); or

“(A) reasonable person in that position would ‘have felt he or she was not at liberty to terminate the interrogation and leave.’ [Citations]” (Tankleff v. Senkowski (2nd Cir. 1998) 135 F.3rd 235, 243; see also People v. Zamudio (2008) 43 Cal.4th 327, 340-346; Thompson v. Keohane (1995) 516 U.S. 99, 112 [133 L.Ed.2nd 383]; People v. Saldana (2018) 19 Cal.App.5th 432, 455; People v. Delgado (2018) 27 Cal.App.5th 1092, 1104.)

A “reasonable person” under these circumstances means a reasonable “innocent” person. (United States v. Galindo-Gallegos (9th Cir. 2001) 244 F.3rd 728, 731, fn. 15; United States v. Wauneka (9th Cir. 1985) 770 F.2nd 1434, 1438; Ford v. Superior Court [People] (2001) 91 Cal.App.4th 112; Dyer v. Hornbeck (9th Cir. 2013) 706 F.3rd 1134, 1137-1145.)

Factors: Include, but are not limited to:

Whether contact with law enforcement was initiated by the police or the person interrogated;

If initiated by the police, whether the person voluntarily agreed to an interview;

Whether the express purpose of the interview was to question the person as a witness or a suspect;

Where the interview took place;

Whether police informed the person that he or she was under arrest or in custody;

Whether they informed the person that he or she was free to terminate the interview and leave at any time and/or whether the person’s conduct indicated an awareness of such freedom;

Whether there were restrictions on the person’s freedom of movement during the interview;

How long the interrogation lasted;

How many police officers participated;

Whether the police dominated and controlled the course of the interrogation;

Whether they manifested a belief that the person was culpable and they had evidence to prove it;

Whether the police were aggressive, confrontational, and/or accusatory;

Whether the police used interrogation techniques to pressure the suspect; and

Whether the person was arrested at the end of the interrogation.

(In re Matthew W. (2021) 66 Cal.App.5th 392, 405; noting that “(n)o one factor is dispositive,” citing In re I.F. (2018) 20 Cal.App.5th 735, 759; and People v. Aguilera (1996) 51 Cal.App.4th 1151, 1162; People v. Potter (2021) 66 Cal.App.5th 528, 539-540.)

The Court in In re Matthew W. notes the addition factor in juvenile cases, noting that “a child's age may be considered in the Miranda analysis, ‘so long as 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.’” (Id., at pp. 405-406, citing J.D.B. v. North Carolina (2011) 564 U.S. 261, 277 [180 L. Ed. 2nd 310; 131 S. Ct. 2394].)

Case Law:

Custody “implies a situation in which the suspect knows he is speaking with a government agent and does not feel free to end the conversation; the essential element of a custodial interrogation is coercion.” (United States v. Martin (7th Cir. 1995) 63 F.3rd 1422, 1429; see also United States v. James (7th Cir. 1997) 113 F.3rd 721, 726.)

“For Miranda purposes, we think the crucial consideration is the degree of coercive restraint to which a reasonable (person) believes he is subject at the time of questioning” (Emphasis added; People v. Taylor (1986) 178 Cal.App.3rd 217, 230.)

A Miranda admonishment is not necessary (and does not violate C.F.R. § 287.3, which requires an admonishment after an illegal alien has been arrested and placed in formal proceedings) before formal removal proceedings have commenced (i.e., when the INS files a notice to appear in the immigration court). (Samayoa-Martinez v. Holder (9th Cir. 2009) 558 F.3rd 897, 901-902.)

“Miranda requires that a person questioned by police after being ‘taken into custody or otherwise deprived of his freedom of action in any significant way . . . [must first] be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.’ (Miranda, supra, 384 U.S. at p. 444, fn. omitted.) ‘By its very nature, custodial police interrogation entails ‘inherently compelling pressures.’” [Citation.] Even for an adult, the physical and psychological isolation of custodial interrogation can ‘undermine the individual’s will to resist and . . . compel him to speak where he would not otherwise do so freely.’” [Citation.] Indeed, the pressure of custodial interrogation is so immense that it ‘“can induce a frighteningly high percentage of people to confess to crimes they never committed.’” (J.D.B. v. North Carolina (2011) 564 U.S. 261, 269 [180 L.Ed.2nd 310; 131 S.Ct. 2394].)” (People v. Torres (2018) 25 Cal.App.5th 162, 172.)

Denial of defendant's motion to suppress incriminating statements made during questioning after a polygraph examination, pursuant to the Fifth Amendment, was affirmed because defendant was not in custody and not entitled to the Miranda protections where he was aware of his freedom to leave and availed himself of this right at least twice. (United States v. Ferguson (8th Cir. 2020) 970 F.3rd 895.)

After being arrested (taken into custody and handcuffed) in his home during an investigation of a shooting, during which officers used the ram of an Emergency Response Unit’s rescue vehicle to open the door, defendant was taken to an unmarked police car and unhandcuffed. Told 45 minutes later that illegal firearms were found in his home, he was also told that he was not under arrest despite his stated belief that he was. Defendant made incriminating statements at this point. After being advised of his rights, defendant indicated “Not really” when asked if he wished to waive his rights, but continued on with the interview anyway, further incriminating himself. Three hours later, defendant was finally arrested. Despite these circumstances, defendant’s motion to suppress his statements was denied; the denial being upheld by the Eighth Circuit Court of Appeal. The Appellate Court concluded that the officers’ assurances to defendant that he was not under arrest and his decision not to terminate the interview suggested that defendant knew that he had the ability to exercise his free will and that he was not restrained to the degree associated with a formal arrest. Defendant also argued that his statements were involuntary because the officers: (1) pressured him to cooperate by offering to help him avoid eviction if he cooperated; (2) made it clear the only way to avoid arrest and potential prosecution as a shooter was to cooperate; (3) confronted him with the possibility of federal charges and losing his children and his job; (4) and halted the arrest process during the interrogation because defendant “had more he wants to say.” Acknowledging that a person’s statements to police officers will be deemed involuntary when they are obtained by “threats, violence, or express or implied promises sufficient to overbear the defendant’s will and critically impair his capacity for self-determination,” the Court held here that none of the tactics utilized by the officers amounted to improper threats or promises that overbore defendant’s will. As the officers testified, they believed that defendant merely drove the vehicle the night of the shooting but did not shoot the victim himself. As a result, in the interview, they tried to persuade him to become a witness against the shooters and put psychological pressure on him to do so. The court concluded that defendant understood his rights and carefully weighed the risks and benefits of incriminating cooperation throughout the protracted interview, showing that his will was not overcome at any point. As such, his statements were not involuntary. (United States v. Roberts (8th Cir. 2020) 975 F.3rd 709.)

Defendant's statements to the police were properly suppressed as the product of a custodial interrogation conducted without the required Miranda warnings where, expecting to meet a single police officer at a shopping mall, defendant was confronted with four armed officers and two police cars, the police taking custody of his seven-year-old son and leading him out of defendant’s sight, the police being well aware that defendant would not leave his son with strangers. (United States v. Mora-Alcaraz (9th Cir. 2021) 986 F.3rd 1151, 1156-1157.)

A truck driver who was stopped by the Border Patrol and detained while awaiting the arrival of a drug-sniffing canine, based upon a reasonable suspicion that the defendant was transporting controlled substances, was not in custody while questioned pending the arrival of the dog. In so deciding, the Court considered the following factors: The defendant was only questioned for two minutes, on the side of the highway, visible to those driving past. The Border Patrol agent’s questioning was never hostile nor accusatory: his tone was cooperative and he never accused defendant of lying or committing a crime; defendant was not handcuffed nor otherwise physically restrained, answering the agent’s questions while leaning against the hood of the BPA's vehicle. (United States v. Nelson (5th Cir. 2021) 990 F.3rd 947; noting also that a person is not in custody for purposes of Miranda merely because he is detained and not fee to go.)

Contacting defendant during a medical emergency, after he called 911 to report that his girlfriend was not breathing (she later dying of a drug overdose), and telling him to quit pacing about the apartment and to stay in one place, and later to remain outside while the paramedics treated the victim, and then later asking him if he would agree to accompany the officers to the police station for questioning after having told him several times that he was not under arrest, was not custody for purposes of Miranda. In fact, the Court ruled that he was only consensually encountered under these circumstances. (United States v. Parker (8th Cir. 2021) 993 F.3rd 595.)

Evidence of defendant’s previous domestic violence act were admitted into evidence against him. Specifically, his response to a police officer (who asked him, “Why did you run ” after he was apprehended). The prosecution introduced defendant's response—that he ran to avoid being accused of hitting his girlfriend—in connection with establishing a prior incident of domestic violence. The victim in that earlier incident was not identified at trial. The prosecution introduced the evidence under Evidence Code section 1109, which makes prior acts of domestic violence admissible to show propensity to engage in such conduct. On appeal, the People characterized the situation as an initial investigatory effort by police to confirm that the right person had been apprehended, which does not require a Miranda advisement. The Court rejected that characterization because the record lacked any indication that the police were unsure of defendant’s identity or were otherwise equivocal about arresting him. Rather, at the time the question was posed, defendant had already been detained at gunpoint and handcuffed, and his arrest was a foregone conclusion. The Court therefore concluded that defendant was clearly in custody at the time he made the statement. He had been apprehended in a bowling alley by an “arrest team” of several officers who detained him at gunpoint. He was then handcuffed and transferred to a different officer who, without giving a Miranda advisement, asked, “Why did you run ” while escorting defendant to a police vehicle. A reasonable person in those circumstances would not have felt free to terminate the encounter; indeed, defendant was unable to do so as he was being physically restrained. The Court further held that asking defendant why he decided to run from police was reasonably likely to produce an incriminating response. Defendant’s statement was therefore obtained in violation of Miranda and should not have been admitted. (People v. Roberts (2021) 65 Cal.App.5th 469, 479-480.)

Defendant was held not to be in custody during an interrogation at the police station, and therefore Miranda warnings were not required, because defendant voluntarily went to the police station two weeks after he had been told that he was suspected of having molested his daughter and, once inside the interview room, defendant was expressly told he could leave at any time. A detective’s statements to defendant indicating his belief in the daughter’s allegations and urging defendant to tell the truth did not transform the voluntary interview into a custodial interrogation because defendant was repeatedly told that he was free to leave, there were no physical restraints placed on him, and the tone and tenor of the questioning would not have caused a reasonable person in defendant’s position to believe he was not free to terminate the interviews and leave the police station. The total of three interrogations, one after the other, was no longer than 2 hours in duration. He was also allowed to leave after the questioning. (People v. Potter (2021) 66 Cal.App.5th 528; differentiating this case from People v. Saldana (2018) 19 Cal.App.5th 432, 454-463, People v. Aguilera (1996) 51 Cal.App.4th 1151, and People v. Torres (2018) 25 Cal.App.5th 162, where the respective defendants were held to be in custody for purposes of Miranda. (pp. 543-544.)

Officers, investigating the receipt of child pornography and told by neighbors that defendant—admittedly on probation for trafficking in child pornography—had asked to use their Internet service to register as sex offender, contacted defendant at his home. Being invited into his house and while awaiting the receipt of a search warrant, and without the benefit of a Miranda admonishment and waiver, defendant made various incriminating statements. In appealing his conviction, the Eighth Circuit Court of Appeals held that defendant was not in custody for Miranda purposes, making it unnecessary for the officers to advise him of his Miranda rights before they questioned him. First, it was undisputed that the officers informed defendant many times as they were awaiting the receipt of a warrant that he was not under arrest and was not obligated to speak to them. The court noted that repetitive reminders that a defendant is free to terminate an interview “is powerful evidence that a reasonable person would have understood that he was free to terminate the interview.” Second, defendant retained his freedom of movement during questioning, as the officers never handcuffed him nor physically or verbally restrained him from moving about his house although they did tell him that officers would have to accompany him as he did so. The Court found that “police escorts throughout a house do not restrain a defendant’s movement to the degree associated with a formal arrest.” In addition, while defendant was told his vehicle needed to be searched if he chose to leave in it, the court concluded that this did not restrict defendant’s movement during their questioning or require him to answer questions. Third, defendant voluntarily acquiesced to official requests to respond to questions. Although the officers initiated the encounter, they frequently reminded him he was not obligated to speak with them as he continued to answer questions. Finally, the officers did not use any strong arm or deceptive tactics, nor did they arrest him at the conclusion of the questioning. Defendant further argued that his statements to the officers were involuntary. A statement is involuntary when it is obtained by threats, violence, or express or implied promises that “overbear the defendant’s will.” Here, the Court held that defendant’s will was not overborne when he made the statements to the officers. The court found there was no evidence that defendant lacked the requisite maturity, education, or mental or physical stamina to understand his rights. Throughout the interview, the officers continued to remind defendant he was not under arrest and was not obligated to talk to them. In addition, although the officers discussed the potential of a lengthy prison sentence for defendant, it was defendant who first raised the topic. Finally, defendant admitted he had experience with the criminal justice system, suggesting he was familiar with his constitutional rights. Based on these facts, the Court concluded that defendant voluntarily made statements to the officers. (United States v. Sandell (8th Cir. 2022) 27 F.4th 625.)

When defendant (while a search warrant is being executed at his home) is taken, unhandcuffed, to a police van parked in front of his residence for questioning, and is told that he was not under arrest, that he was not charged with any crime, and that they were talking voluntarily, and he is released immediately thereafter, his resulting confession was held to be admissible despite the lack of a Miranda warning and waiver. No custody. (United States v. Woodson (11th Cir. 2022) 30 F.4th 1295.)

In so ruling, and in discussing the issue of “custody,” the Court noted that in the Miranda context, a person is in custody when he finds himself in “circumstances that are thought generally to present a serious danger of coercion.” To evaluate the issue of coercion, the court is to ask, “whether a reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave.” To answer that question, the court will examine “all of the circumstances surrounding the interrogation,” including the location and duration of the questioning, statements made during the interview, the presence or absence of physical restraints, and whether the person was released after the interview.)

Objective vs. Subjective Test:

The test being an “objective” one, the fact that the suspect is a juvenile or otherwise inexperienced in the criminal justice system is irrelevant to the “custody” inquiry. (Yarborough v. Alvarado (2004) 541 U.S. 652, 663 [158 L.Ed.2nd 938].)

But see “The Age of a Minor,” below.

Defendant’s prior criminal history, being a “subjective factor,” is not relevant to the issue of custody. (People v. Torres (2018) 25 Cal.App.5th 162, 174, fn. 2.)

“[T]he initial determination of custody depends on the objective circumstances of the interrogation, and not on the subjective views harbored by either the interrogating officers or the person being questioned.” (Emphasis added; Stansbury v. California (1994) 511 U.S. 318, 323 [128 L.Ed.2nd 293, 298]; People v. Zamudio (2008) 43 Cal.4th 327, 346; People v. Kopatz (2015) 61 Cal.4th 62, 80; People v. Moore (2015) 236 Cal.App.4th Supp. 10, 14.)

The fact that the defendant had military training and “was trained to obey orders from those in authority” is irrelevant, in that the test is an “objective” one; i.e., as viewed by a “reasonable person.” The defendant’s military training is a “subjective” factor that is irrelevant in determining the issue of “custody.” (United States v. Salyers (7th Cir. 1998) 160 F.3rd 1152, 1159.)

“Whether a defendant knows he is guilty and believes incriminating evidence will soon be discovered is irrelevant.” (United States v. Moya (11th Cir. 1996) 74 F.3rd 1117, 1119.)

The existence of probable cause to arrest, if not communicated to the suspect, does not by itself trigger a need for a Miranda admonishment. (People v. Robertson (1982) 33 Cal.3rd 21, 38.)

“[E]vidence of the [police] officer’s subjective suspicions or beliefs is relevant only . . .

. . . ‘if the officer’s views or beliefs were somehow manifested to the individual under interrogation and would have affected how a reasonable person in that position would perceive his or her freedom to leave,’ or . . .

. . . if such evidence is ‘relevant in testing the credibility of [the officer’s] account of what happened during an interrogation . . .’” (People v. Standsbury (1995) 9 Cal.4th 824, 830 (reversed on other grounds); Standsbury v. California (1994) 511 U.S. 318, 325 [128 L.Ed.2nd 293, 300]; see also United States v. James (7th Cir. 1997) 113 F.3rd 721, 728.)

The fact that a minor/suspect’s father, who was asked for permission to talk with his son, subjectively believed, based on prior contacts with law enforcement, that “[a]nytime you’re told to do something by the cops, it’s an order,” was held to be irrelevant. (In re I.F. (2018) 20 Cal.App.5th 735, 768.)

Note: The fact that a person might be reluctant to merely walk away from a police officer who is attempting to ask him questions is irrelevant. “We do not consider the ‘subjective views harbored by either the interrogating officers or the person being questioned.’” Id., at p. 767, quoting Yarborough v. Alvarado (2004) 541 U.S. 652, at p. 663 [158 L.Ed.2nd 938].)

The Age of a Minor:

Although the age of a suspect is generally considered a subjective factor that is not to be considered in determining whether a person is in custody (Yarborough v. Alvarado (2004) 541 U.S. 652, 663 [158 L.Ed.2nd 938].), the Supreme Court has determined that in the case of a minor, where a minor’s age is either known, or apparent, to an interrogator, this factor becomes an objectively perceived one, and must be taken into consideration when determining whether the minor is in custody for purposes of Miranda. (J.D.B. v. North Carolina (2011) 564 U.S. 261 [180 L.Ed.2nd 310; 131 S.Ct. 2394]; see also United States v. IMM (9th Cir. 2014) 747 F.3rd 754, 765; In re I.F. (2018) 20 Cal.App.5th 735, 760; People v. Delgado (2018) 27 Cal.App.5th 1092, 1104; In re Matthew W. (2021) 66 Cal.App.5th 392, 405-406.)

Defendant in IMM, a 12-year-old minor, was held to be in custody when questioned in a closed interrogation room despite his mother signing a “Parental Consent to Interview Form,” where the minor was never advised of his Miranda rights and was subjected to a 55-minute, accusatory interrogation. Someone of the defendant’s age would not have understood that he was free to leave.

Where a 16-year-old homicide suspect had been taken to a police station in handcuffs and shackled to the floor of an interrogation room and forced to give up his possessions (including his cellphone), and then left alone in that room for nearly an hour and a half, he was in custody for purposes of Miranda. Although one detective thereafter effectively freed him from custody by unshackling him and telling he was not under arrest and was free to leave, there were still a “lingering indicia” of custody that should have been factored in to the reasonable-person calculus. When a second detective later came into the room, demanded the passcode to his cellphone, and told him that he would not be leaving until they “dumped” the contents of his phone, defendant was effectively put back into custody. No reasonable person under those circumstances would have felt like he was free to leave. Accordingly, defendant should not have been asked any questions at that point before Mirandizing him. All of defendant’s unwarned statements after that point should have been suppressed. The trial court's denial of the motion was held to be error. (People v. Delgado (2018) 27 Cal.App.5th 1092, 1104-1105.)

The “Focus of Suspicion” Fiction: The sometimes invoked “focus of suspicion” test is no longer (if it ever really was) valid (People v. Standsbury (1995) 9 Cal.4th 824 (reversed on other grounds); Standsbury v. California (1994) 511 U.S. 318, 325 [128 L.Ed.2nd 293, 300]; In re Joseph R. (1998) 65 Cal.App.4th 954, 959; see also Minnesota v. Murphy (1984) 465 U.S. 420, 431 [79 L.Ed.2nd 409,422].), except as it might affect how a reasonable person upon whom law enforcement is then directing their attention would perceive his position under the circumstances. (See also In re Kenneth S. (2005) 133 Cal.App.4th 54.)

The rule of law that a suspect must be advised of his rights under Miranda at that point in time where he has become the “focus of suspicion” and is to be questioned, irrespective of his custody status, has long since been repudiated. (People v. Cunningham (2015) 61 Cal.4th 609, 648; citing Stansbury v. California (1994) 511 U.S. 318, 326 [128 L.Ed.2nd 293, 298].)

“To the extent language in our earlier opinions may be read to suggest that an officer’s subjective focus of suspicion is an independently relevant factor in establishing custody for the purpose of Miranda, such language is disapproved.” (People v. Standsbury, supra, pg. 830, fn. 1.)

See also Berkemer v. McCarty (1984) 468 U.S. 420, 442 [82 L.Ed.2nd 317]: “A policeman’s unarticulated plan has no bearing on the question whether a suspect was ‘in custody’ at a particular time.”

Miranda warnings are not necessarily required just because the “focus” of an investigation is directed at the defendant. (Beckwith v. United States (1976) 425 U.S. 341 [48 L.Ed.2nd 1].)

However, when the fact that a particular person has become the focus of an official investigation is communicated by the police to that person, it becomes one of the factors to consider when determining whether a reasonable person would believe he or she is in custody under the circumstances. (People v. Vasquez (1993) 14 Cal.App.4th 1158, 1163.)

The California Supreme Court did note, however: “While the nature of the police questioning is relevant to the custody question, police expressions of suspicion, with no other evidence of a restraint on the person’s freedom of movement, are not necessarily sufficient to convert voluntary presence at an interview into custody.” (People v. Moore (2011) 51 Cal.4th 386, 402.)

The California Supreme Court has noted: “While the nature of the police questioning is relevant to the custody question, police expressions of suspicion, with no other evidence of a restraint on the person’s freedom of movement, are not necessarily sufficient to convert voluntary presence at an interview into custody.” (People v. Moore (2011) 51 Cal.4th 386, 402.)

It is irrelevant that the motivation behind an officer’s questions during a traffic stop (following too close) was to discover evidence of criminal activity (suspecting that defendant and his passenger were transporting drugs) in that a police officer’s “unarticulated plan” has no bearing on whether a suspect is in custody for Miranda purposes. (United States v. Johnson (8th Cir. 2020) 954 F.3rd 1106.)

Factors in Determining Custody:

Evaluating the Circumstances: “Two inquiries are essential to this determination: first, what are the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave.” (In re Joseph H. (2015) 237 Cal.App.4th 517, 530-531; citing Thompson v. Keohane (1995) 516 U.S. 99, 112 [133 L.Ed.2nd 383].)

“Custody” implies a situation in which the suspect would reasonably know that he or she is speaking with a government agent and does not feel, under the circumstances, that he or she is free to end the conversation. (United States v. James (7th Cir. 1997) 113 F.3rd 721, 726.)

“[C]ustody exists for Miranda purposes if a reasonable person in that position would ‘have felt he or she was not at liberty to terminate the interrogation and leave.’” (Tankleff v. Senkowski (2nd Cir. 1998) 135 F.3rd 235, 243; see also Thompson v. Keohane (1995) 516 U.S. 99, 112 [133 L.Ed.2nd 383, 394]; United States v. Martin (7th Cir. 1995) 63 F.3rd 1422, 1429.)

Totality of the Circumstances: Whether or not a person is in custody depends upon an evaluation of the “totality of the circumstances,” taking into consideration the following factors:

Whether the suspect has been formally arrested;
Absent a formal arrest, the length of the detention;
Whether contact with law enforcement was initiated by the police or the person interrogated;
Whether the suspect is searched, frisked, or patted down;
The location of the interview;
The ratio of officers to suspects;
How many police officers participated;
The demeanor of the officer, including the nature of the questioning;
Whether the suspect agreed to the interview and was informed he or she could terminate the questioning;
Whether the person’s conduct indicated an awareness of such freedom;
Whether the police informed the person he or she was considered a witness or a suspect (But, see “Note,” below);
Whether they manifested a belief that the person was culpable and they had evidence to prove it;
Whether there were restrictions on the suspect’s freedom of movement during the interview;
Whether the police officers dominated and controlled the interrogation or were aggressive, confrontational, and/or accusatory;
Whether the police used interrogation techniques;
Whether they pressured the suspect; and
Whether the suspect was arrested at the conclusion of the interview.

(People v. Pilster (2006) 138 Cal.App.4th 1395; 1403-1404, i.e., no one factor is controlling; see also People v. Zamudio (2008) 43 Cal.4th 327, 340-346; United States v. Brobst (9th Cir. 2009) 558 F.3rd 982, 995-997; Stanley v. Schriro (9th Cir. 2010) 598 F.3rd 612, 618-619; United States v. Basher (9th Cir. 2011) 629 F.3rd 1161, 1166-1167; People v. Bejasa (2012) 205 Cal.App.4th 26, 35-36; People v. Aguilera (1996) 51 Cal.App.4th 1151, 1162; People v. Stansbury (1995) 9 Cal.4th 824, 831-835; United States v. Galindo-Gallegos (9th Cir. 2001) 244 F.3rd 728; People v. Herdan (1974) 42 Cal.App.3rd 300, 306-307; People v. Salinas (1982) 131 Cal.App.3rd 925, 935; People v. Morris (1991) 53 Cal.3rd 152, 197-198; United States v. Fike (5th Cir. 1996) 82 F.3rd 1315, 1324-1326; People v. Lopez (1985) 163 Cal.App.3rd 602, 608; People v. Spears (1991) 228 Cal.App.3rd 1, 25-26; People v. Forster (1994) 29 Cal.App.4th 1746, 1753-1754; Tanklff v. Senkowski (2nd Cir. 1998) 135 F.3rd 235, 244; In re B.M. (2017) 10 Cal.App.5th 1292, 1297; People v. Saldana (2018) 19 Cal.App.5th 432, 454-463; In re I.F. (2018) 20 Cal.App.5th 735, 759; People v. Torres (2018) 25 Cal.App.5th 162, 172-173; In re M.S. (2019) 32 Cal.App.5th 1177, 1188; In re Anthony L. (2019) 43 Cal.App.5th 438, 445; People v. Potter (2021) 66 Cal.App.5th 538, 539-540.)

The “whether the suspect was arrested at the conclusion of the interview” factor is not satisfied by merely allowing the suspect to walk out of the police station after the interrogation, only to arrest him minutes later, down the block. This “pretense” has been recognized as “more of a ruse than an actual statement of honest intent” that does not lend any weight to the argument that he was not arrested at the time of the interrogation. (People v. Saldana, supra, at p. 461.)

“Where the person being questioned is a minor, the court may also consider the child’s age in the Miranda analysis, as long as the child’s age was known to the officer or objectively apparent to a reasonable officer, because ‘a reasonable child subjected to police questioning will sometimes feel pressured to submit when a reasonable adult would feel free to go.’” (In re Anthony L. supra, at p. 446; quoting In re I.F., supra, at p. 760.)

But see United States v. Fernandez-Ventura (1st Cir. 1998) 132 F.3rd 844, 847; and United States v. Pratt (1st Cir. 1981) 645 F.2nd 89, 91; “pat down” search in a U.S. Customs inspection is insufficient, by itself, to constitute custody.

A number of the above factors may be distilled down into one category; i.e., “the nature of the interrogation;” e.g., whether police (1) dominated and controlled the interrogation; (2) manifested a belief (defendant) was culpable and they had evidence to prove it; (3) were aggressive, confrontational, and accusatory; (4) used interrogation techniques to pressure (defendant); and (5) arrested him at the end of the interrogation. (See People v. Saldana (2018) 19 Cal.App.5th 432, 454-463.)

Also note United States v. Leal (7th Cir. 2021) 1 F.3rd 545, where the Court held that the fact that defendant was arrested after a non-custodial questioning was irrelevant to the custody issue.

Conflict of Interest of a Parent as a Factor:

It has been argued that in a case where a parent of the suspect, who had also lost a child in the case (i.e., one child murdering his or her sibling), had a conflict of interest which itself was a circumstance that should be factored in. Such a conflict, per this argument, could cause the parent to unwittingly interfere with the thoughtful exercise of the child/suspect’s constitutional rights, or even contribute to a false confession. “(I)n situations where the parent or other interested adult has a relationship with the victim, ‘the adult may operate, consciously or subconsciously, as more of a fact-finder or inquisitor in order to determine how her loved one was harmed.’” (In re I.F. (2018) 20 Cal.App.5th 735, 760-766; quoting Farber, The Role of the Parent/Guardian in Juvenile Custodial Interrogations: Friend or Foe (2004) 41 Am. Crim. L.Rev. 1277, 1294.)

Other potential conflicts include when the parent may be the victim of the crime, or may himself be a suspect, or when a parent urges cooperation with law enforcement as a matter of moral responsibility. Also, some parents, believing their children to be innocent, may encourage cooperation out of a desire to promote good citizenship or to aid in the investigation of a crime. Others, believing their children to be guilty, may urge cooperation out of a desire to teach their children life lessons about personal responsibility or respect for authority. (Citations omitted; In re I.F., supra, at p. 761.)

Although a parent’s conflict of interest may be a factor among others to consider in evaluating the issue of a custody for Miranda purposes, there is no authority for an exclusionary rule based upon that factor alone. (Id., at p. 766.)

The Ninth Circuit Court of Appeals Opinion: The Ninth Circuit has reduced the number of factors down to the following, while often referring to this list as “non-exhaustive:”

The language used to summon the individual;
The extent to which the defendant is confronted with evidence against him;
The physical surroundings of the interrogation;
The duration of the detention; and
The degree of pressure applied to detain the individual.
Enforced isolation, isolating the defendant from the outside world or merely keeping him from having contact with other people.

(United States v. Barnes (9th Cir. 2013) 713 F.3rd 1200, 1203-1207; United States v. Beraun-Panez (9th Cir. 1987) 830 F.2nd 127; United States v. Bassignani (9th Cir. 2009) 575 F.3rd 879, 883; citing United States v. Kim (9th Cir. 2002) 292 F.3rd 969, 974-977; noting that “Other factors may also be pertinent to, and even dispositive of, the ultimate determination whether a reasonable person would have believed he could freely walk away from the interrogators.” See also United States v. IMM (9th Cir. 2014) 747 F.3rd 754, 765.)

Witness or Suspect: Whether the person is questioned as a witness or a suspect is a factor to consider. (People v. Aguilera, supra.)

E.g.: Reading a person his Miranda rights in itself is a factor indicating custody. (People v. Boyer (1989) 48 Cal.3rd 247, 268, 272; overruled on other grounds.)

The California Supreme Court has noted also that the fact a person is advised of his Miranda rights is itself a factor to consider in that it conveys to a suspect that the police believe that he must be guilty of something. (Ibid.; see also People v. Moore (2011) 51 Cal.4th 386, 403.)

Note, however: DO NOT tell a suspect that he has the choice of being treated as a “witness or a suspect.” Such an admonishment can, and probably will, be interpreted as an “offer of leniency;” i.e., inferring that he may be immune from prosecution should he cooperate, which will likely be fatal to the admissibility of any resulting statements. (See “Offers of Leniency,” under “Specific Issues Affecting Voluntariness,” under “Voluntariness After Waiver” (Chapter 9), below.)

Whether the suspect was informed that he was free to leave and/or terminate the interview at any time is an important factor (see California v. Beheler (1983) 463 U.S. 1121 [103 S.Ct. 3517; 77 L.Ed.2nd 1275]; People v. Aguilera, supra; Tankleff v. Senkowski (2nd Cir. 1998) 135 F.3rd 235, 244; People v. Torres (2018) 25 Cal.App.5th 162.), and is discussed in more detail below.

I.e.; a “Beheler Admonishment,” per California v. Beheler, supra.)

See: “The ‘Beheler Admonishment’ or Taking the ‘Custody’ Out of An Interrogation,” below.

The Gladys R. Questionnaire: Also, the fact that a police officer begins an interview of a minor with a Gladys R. questionnaire, done in order to determine by “clear evidence” whether a minor under the age of 14 years understood the wrongfulness of his act (see In re Gladys R. (1970) 1 Cal.3rd 855, and P.C. § 26) is, in itself, a factor to consider when determining whether a suspect-minor was in custody at the time. (In re Joseph H. (2015) 237 Cal.App.4th 517, 531.)

Location as a Factor: While not dispositive in and of itself (United States v. Howard (4th Cir. 1997) 115 F.3rd 1151, 1155.), the location of the interview is an important factor the court will consider in determining custody. For instance:

The Suspect’s Home or Place of Business: Questioning in one’s own home is less intrusive and less likely to require a Miranda admonishment. (Michigan v. Summers (1981) 452 U.S. 692, 702, and fn. 15 [69 F.2nd 340, 349]; see also United States v. Jones (9th Cir. 1991) 933 F.2nd 807; United States v. Sutera (8th Cir. 1991) 933 F.2nd 641; and United States v. Fike (5th Cir. 1996) 82 F.3rd 1315, 1325; United States v. Craighead (9th Cir. 2008) 539 F.3rd 1073, 1083.)

Absent the use of handcuffs, guns, or excessive force, the detention of a person in his own home while a search warrant is being executed, or a search based upon consent, is not custodial. (Michigan v. Summers (1981) 452 U.S. 692, 702, fn. 15 [69 L.Ed.2nd 340, 349]; United States v. Fike (5th Cir. 1996) 82 F.3rd 1315, 1325; United States v. Saadeh (7th Cir. 1995) 61 F.3rd 510, 520; United States v. Rith (10th Cir. 1999) 164 F.3rd 1323, 1332; United Stated v. Axsom (8th Cir. 2002) 289 F.3rd 496.)

Questioning in one’s home, however, does not always mean there is no custody requiring a Miranda admonishment. (See Orozco v Texas (1969) 394 U.S. 324 [22 L.Ed.2nd 311]; United States v. Craighead, supra, where defendant was moved to storeroom in his home and the door closed.)

E.g.: An officer entering defendant’s hotel room with a pass key, with his gun drawn, and ordering defendant to raise his hands and get out of bed, resulted in a situation where a reasonable person would have reasonably believed he was deprived of his freedom in a significant way, even though the officer reholstered his gun before questioning defendant about an alleged rape. Defendant, per the court, was in custody. (People v. Benally (1989) 208 Cal.App.3rd 900.)

Questioning a suspect in her place of business, while tending to minimize the intrusiveness, is largely offset when that suspect is isolated from other family members and subjected to a full-fledged interrogation. (United States v. Kim (9th Cir. 2002) 292 F.3rd 969, 977-978.)

Asking a 15-year-old minor (homicide suspect) to reenact what was later determined to be a second degree murder of her baby within minutes of his birth was held to lawful despite not having advised the minor of her Miranda rights, there being no “custody” at that time. The reenactment took place in the minor’s apartment and lasted only about 30 minutes. The police were not confrontational or aggressive, and were aware of the minor’s obvious age. The minor consented to participating in the reenactment. Her parents were present and also consented to the reenactment after being informed that she was not required to participate. The Juvenile Court magistrate made the finding that the officers “took great care to make sure this was not a coercive environment [and were] sensitive to [M.S.’s] physical condition (the victim’s birth and murder occurring only three days earlier).” The Appellate Court held that the Juvenile Court had made the proper ruling in denying defendant’s motion to suppress and was supported by substantial evidence. (In re M.S. (2019) 32 Cal.App.5th 1177, 1188.)

Where defendant was questioned about a suspected tax fraud scheme in her own living room, whereupon she admitted to her role in the crime, it was held that she was not in custody at the time of the questioning. When an interview takes places in a suspect’s home, that fact usually weighs against finding the kind of custodial situation that requires a Miranda warning. Also, before the interview began, the agents told defendant that she was the subject of an investigation and described “the voluntary nature of the interview.” Asking defendant if she would agree to answer their questions, she agreed. Also significant was the fact that no weapons were brandished, no handcuffs were used, and the agents employed a “professional and cordial tone.” Finally, defendant never asked to end the questioning and when the interview was over the agents left without arresting her. The court held that these facts did not constitute an environment that presented a meaningful danger of coercion. As a result, the court concluded that defendant was not in custody for Miranda purposes, so no Miranda warning was required. (United States v. Cooper (D.C. Cir. 2020) 949 F.3rd 744.)

Questioning defendant in his own home after being told that he was not under arrest, that he was not in custody, and that the agents would leave at any time he told them to go, the Court held that the defendant was not in custody for purposes of Miranda. Also, at one point, defendant’s wife interceded, talking to defendant out of the agents’ presence, after which defendant invited the agents back into his home to continue the questioning. (United States v. Deason (11th Cir. 965 F.3rd 1252.)

Questioning a17-year-old minor in his own home was nonetheless determined to be a custodial interrogation due to other factors indicating that a reasonable person in defendant’s position would not have felt free to leave or terminate the questioning. (In re Matthew W. (2021) 66 Cal.App.5th 392, 406-410.)

In Public: Questioning in a public place, or at a neutral location is less intrusive, and, absent indications that the subject is in fact being arrested, is less likely to require a Miranda admonishment. For example:

Questioning in a busy airport, while being told that she was free to leave, did not constitute an interrogation requiring a Miranda admonishment. (United States v. Yusuff (7th Cir. 1996) 96 F.3rd 982.)

See also United States v. Torres-Guevara (10th Cir. 1998) 147 F.3rd 1261; questioning outside the airport after being told that she was free to leave did not require a Miranda admonishment in that the defendant was not in custody, and not even being detained.

Questioning defendant in a non-obtrusive manner, outdoors, in public, did not require a Miranda admonishment. (United States v. Guerrero-Hernandez (10th Cir. 1996) 95F.3rd 983.)

Contacting defendant on a public street and asking him if he was “selling dope,” resulting in an incriminating response, was not an interrogation requiring a Miranda admonishment. (People v. Vasquez (1993) 14 Cal.App.4th 1158.)

Questioning defendant at his parole officer’s office, telling him he was free to leave; no custody. (People v. Carpenter (1997) 15 Cal.4th 312, 383-384.)

Questioning a witness in testimony in a court proceeding is not a custodial interrogation. (United States v. Kilgroe (9th Cir. 1992) 959 F.2nd 802; United States v. Valdez (2nd Cir. 1994) 16 F.3rd 1324, 1328.)

Questioning in a public setting, albeit a rural, isolated location, where there were some 15 to 20 non-law enforcement witnesses present, diminished the coerciveness involved, eliminating the need for a Miranda admonishment and waiver. The situation was no more coercive than a detention situation. (United States v. Galindo-Gallegos (9th Cir. 2001) 244 F.3rd 728.)

But see United States v. Beraun-Panez (9th Cir. 1987) 812 F.2nd 578, where, in a remote area, defendant was separated from his companions and questioned. A Miranda admonishment should have been given.

The initial questioning in an international border situation (at the primary inspection point) prior to developing probable cause to arrest does not require a Miranda admonishment. (United States v. Leasure (9th Cir. 1997) 122 F.3rd 837.)

Immigration officials escorting a smuggling suspect from the primary to the secondary inspection areas at the U.S./Mexican international border did not constitute “custody” for purposes of Miranda. However, putting the subject into a holding cell while removing his shoes and belt was custody. Any questioning after that point should have been preceded by a Miranda admonishment and waiver. (United States v. Butler (9th Cir. 2001) 249 F.3rd 1094, 1099-1101.)

Questioning in the secondary inspection area, although lasting longer than normal (the delay being caused by the defendant’s inability to provide satisfactory evidence of identification), is to be expected at a Custom’s inspection station and did not constitute custody. (Untied States v. Osuna (6th Cir. 1999) 170 F.3rd 654.)

However, despite questioning defendant in a public shopping mall, in a low-key tone, and in a limited detention (i.e., 36 minutes) situation, the Ninth Circuit found defendant to have been in custody for purposes of Miranda under circumstances where he was confronted by four armed police officers, with two police cars with lights flashing, and after having separated him from his seven-year-old son. (United States v. Mora-Alcaraz (9th Cir. 2021) 986 F.3rd 1151, 1155-1157.)

The Court found of particular significance on the issue of custody the fact that the officers had asked to speak with him outside the presence of his son. “No physical restraint of Mora-Alcaraz was necessary so long as the police kept him separated from his son. He could not leave.” (Id., at p. 1157.)

In a Hospital Room or Ambulance:

While defendant is in an ambulance receiving medical treatment, he is not in custody for purposes of Miranda. (People v. Mosley (1999) 73 Cal.App.4th 1081, 1090-1091; see also United States v. Martin (9th Cir. 1985) 781 F.2nd 671, 673; defendant a hospital patient.)

The California Supreme Court noted that questioning a defendant without benefit of a Miranda admonishment and waiver, when the defendant is a hospital patient and hooked up to medical devices, is “tread(ing) on perilous ground.” However, the Court, under the circumstances, found this issue to be one that did not need deciding in that even if in violation of Miranda, the admission of the defendant’s resulting statements was harmless beyond a reasonable doubt. (People v. Caro (2019) 7 Cal.5th 463, 492-495.)

Defendant was briefly questioned while in an emergency room of a hospital about how he had become a gunshot victim. The Eighth Circuit Court of Appeal upheld the trial court’s ruling that a Miranda admonishment was not required in that defendant was not in custody at the time, and that his statements were not coerced. First, the interview lasted only a few minutes. Miranda warnings were not required because defendant was not in custody. Second, being on pain medication does not automatically establish that a person’s will has been overborne if there is evidence that the patient answered “reasonably” and understood what was occurring. Here, the officer testified that defendant answered questions in an appropriate context and manner; he spoke in a normal cadence and pace; he did not slur his words; and that the officer was able to totally understand his answers. In addition, the Court added that defendant refused to answer some of the officer’s questions, which suggested that the pain medication did not impair his ability to resist “police pressure.” Finally, the Court found there was no evidence to suggest that the officer employed strong-arm tactics, deception, or made threats or promises while talking to defendant. (United States v. Mattox (8th Cir. 2022) 27 F.4th 668.)

In a Police Car: Questioning the suspect in the back seat of a police car may or may not indicate custody, depending upon the circumstances. The cases are mixed. For example:

Two F.B.I. agents questioning a murder suspect for over an hour in a closed car held to be custody. (United States v. Lee (9th Cir. 1982) 699 F.2nd 466.)

Questioning in the back seat of a sheriff’s car, where defendant helped determine the place of the interview, plus other non-coercive circumstances, held not to require a Miranda admonishment. (United States v. McKinney (8th Cir. 1996) 88 F.3rd 551.)

But, while the back seat of a police car might be considered a coercive setting for a protracted interrogation, spontaneous statements made by the in-custody suspect are admissible. (United States v. Murphy (6th Cir. 1997) 107 F.3rd 1199.)

Brief questioning of a suspect in the back seat of a patrol car after a traffic stop and a gun and drugs were recovered; no custody. (United States v. Murray (7th Cir. 1996) 89 F.3rd 459, 461-462.)

Secretly tape recording conversations in the back seat of a police car is lawful: No questioning; no expectation of privacy. (People v. Chandler (1968) 262 Cal.App.2nd 350; People v. Seaton (1983) 146 Cal.App.3rd 67, 82; People v. Crowson (1983) 33 Cal.3rd 623, 630; United States v. Gilley (11th Cir. 1995) 43 F.3rd 1440; People v. Loyd (2002) 27 Cal.4th 997, 1009, fn. 14; People v. Cleland (2003) 109 Cal.App.4th 121.)

See also United States v. Bailey (8th Cir. Minn. 2016) 831 F.3rd 1035: Even though the officer might have expected that defendant, left alone in the back seat of a patrol car with a recording device running, might say something if left alone, the court found the officer’s act of leaving him alone in the back of the patrol car did not constitute interrogation. Miranda warnings were not required.

Same rule holds true for taped conversations of prisoners in the back of a transportation van. (United States v. Paxton (7th Cir. Ill. 2017) 848 F.3rd 803; also upholding the admissibility of identification questions the agents asked the defendants as they entered the van, which were later used to identify the speakers in the recorded conversations, finding that such questioning did not violate the Fifth Amendment. Although the defendants had not yet been given their Miranda warnings, the questions asked by the agents were similar to routine booking questions, which are not the type of questions that typically produce incriminating information.

Placing a co-suspect in the back seat of a police car with a hidden tape recorder, even after the defendant had requested counsel, is not a violation of the defendant’s rights. (People v. Lucero (1987) 190 Cal.App.3rd 1065, 1067-1069.)

But see United States v. Ricardo D. (9th Cir. 1990) 912 F.2nd 337, 340: “Detention in a patrol car exceeds permissible Terry (i.e., detention) limits absent some reasonable justification,” thus converting the contact into an arrest and necessitating a Miranda admonishment and waiver before questioning.

Referring to the landmark case decision on detentions and pat downs; Terry v. Ohio (1968) 392 U.S. 1 [88 S.Ct. 1868; 20 L.Ed.2nd 889].

Questioning defendant while seated in the back seat of the officer’s patrol vehicle during a traffic stop, held not to be “custody” for purposes of Miranda, the Court holding that the circumstances surrounding the questioning did not resemble a formal arrest in that defendant was asked a modest number of questions and never indicated that his detention would be anything other than temporary. (United States v. Johnson (8th Cir. 2020) 954 F.3rd 1106; noting that it did not matter if the motivation behind the officer’s questions was to discover evidence of criminal activity in that a police officer’s “unarticulated plan” has no bearing on whether a suspect is in custody for Miranda purposes.)

In a Police Station: Questioning at the police station is a strong factor indicating the need for a Miranda admonishment, but there are exceptions. (People v. Esqueda (1993) 17 Cal.App.4th 1450, 1481-1482.)

Requiring a person to remain in the coercive environment of a police facility is a “de facto” arrest; i.e., “custody.” (People v. Aguilera (1996) 51 Cal.App.4th 1151, 1166-1167.)

However, while questioning in a police station tends to be more intrusive, it does not always necessarily mean the subject is in custody. (Oregon v. Mathiason (1977) 429 U.S. 492, 495 [50 L.Ed.2nd 714, 719]; see also Green v. Superior Court (1985) 40 Cal.3rd 126, 136; and People v. Rippberger (1991) 231 Cal.App.3rd 1667, 1690-1691; California v. Beheler (1983) 463 U.S. 1121, 1124-1125 [103 S.Ct. 3517; 77 L.Ed.2nd 1275, 1278-1279]; People v. Stansbury (1995) 9 Cal.4th 824, 833; People v. Potter (2021) 66 Cal.App.5th 528, 540.)

In Oregon v. Mathiason, supra: Defendant was invited to the police station, told that although the police officer believed he was involved in a burglary, he was not under arrest, and after a 30-minute interview he was allowed to leave: No custody.

Defendant was interviewed in an FBI interview room, when he voluntarily went with the agent and after being told several times that he was not in custody and was free to leave, and then transported home afterwards; no custody. (United States v. Crawford (9th Cir. 2004) 372 F.3rd 1048, 1059-1060.)

Voluntarily accompanying detectives to the police station, while being told he was not under arrest and then, as previously promised, being given a ride home afterwards, was not a custodial interrogation. (People v. Holloway (2004) 33 Cal.4th 96, 118-121.)

Defendant hired another to kill his sister’s ex-husband. The ensuing investigation eventually led to Baines. He was either asked, or volunteered, to go to the police station to answer questions. He was not told he was under arrest. He was not handcuffed. No firearms were used. He was taken to an unlocked interrogation room and, without a Miranda admonishment, questioned for six hours during which he made certain incriminating statements. After failing a polygraph test, defendant asked if he could speak with a lawyer and whether he could leave. He was told no. The trial court later ruled that Baines was not in custody until he asked if he could leave, and that his statements up to that point were admissible in court against him. The Ninth Circuit Court of Appeal, in a split decision, affirmed. Per the Court; “There is no evidence here to suggest that, under clearly established federal law, a reasonable person in Bain’s situation would have felt that he was not free to terminate the police interrogation.” (Baines v. Cambra (9th Cir. 2000) 204 F.3rd 964.)

Being held in a locked interrogation room for over seven hours (although he was told that he need only knock if he needed anything) prior to initiating questioning, did not convert a detention into an arrest where there was no other indicia of custody (handcuffs, guns, etc.). The Appellate Court described defendant as one who “deliberately chose a stance of eager cooperation in the hopes of persuading the police of his innocence,” and found that he had never been “seized” (i.e., arrested) for purposes of the Fourth Amendment, and that his transportation and lengthy wait at the station had been voluntary, and he was therefore never illegally arrested. (Ford v. Superior Court [People] (2001) 91 Cal.App.4th 112.)

Defendant registering as a sex registrant (per P.C. § 290(a)) at a police station is not entitled to the assistance of his attorney in that the process is not the equivalent to a custodial interrogation. (People v. Sanchez (2003) 105 Cal.App.4th 1240, 1245-1246.)

The same reasoning may apply to similar government-dominated locations, such as the office of the defendant’s probation officer. (United States v. Howard (4th Cir. 1997) 115 F.3rd 1151; see also People v. Carpenter (1997) 15 Cal.4th 312, 383-384; parole officer’s office.)

Also, an arrested individual held in a police station has no more of a privacy expectation than does a jail inmate or a prisoner in a police car. Secretly tape-recording his conversation with another, therefore, is not illegal. (People v. Califano (1970) 5 Cal.App.3rd 476, 481.)

Voluntarily coming to the police station, being told that he is not under arrest and is free to leave, with the interrogation room door being left partially open and his foster mother only about 10 feet away, was not custody for purposes of Miranda despite occurring in a secure area of a police station. (In re Kenneth S. (2005) 133 Cal.App.4th 54.)

However, coming to the police station on one’s own volition is only the beginning of the inquiry. Subsequent factors may very well change what initially was a voluntary submission to answering some questions into a custodial interrogation, requiring a Miranda admonishment and waiver. (People v. Saldana (2018) 19 Cal.App.5th 432, 456; noting that the “location” of an interrogation is a key factor in evaluating whether an interrogation involved “custody.”)

Fourth Amendment Custody vs. Fifth Amendment Custody: Note People v. Pilster (2006) 138 Cal.App.4th 1395, at page 1406, where it was noted that “custody” for purposes of Miranda, under the Fifth Amendment, involves a different analysis than “custody” for purposes of a detention or arrest under the Fourth Amendment. “In contrast (to Fourth Amendment, search and seizure issues), Fifth Amendment Miranda custody claims do not examine the reasonableness of the officer’s conduct, but instead examine whether a reasonable person (in the defendant’s position) would conclude the restraints used by police were tantamount to a formal arrest.”

The fact that “custody” for purposes of the Fifth Amendment involves a different analysis than does custody for purposes of the Fourth Amendment has been recognized in other decisions. (See United States v. Sullivan (4th Cir. 1998) 138 F.3rd 126, 131; United States v. Smith (7th Cir. 1993) 3 F.3rd 1088, 1097.)

“‘Whether an individual has been unreasonably seized for Fourth Amendment purposes and whether that individual is in custody for Miranda purposes are two different issues. [Citation.]’” (People v. Bejasa (2012) 205 Cal.App.4th 26, 38, quoting People v. Pilster, supra, at p. 1405.)

But see People v. Kopatz (2015) 61 Cal.4th 62, 80, where the California Supreme Court determined that, at least as was relevant in this case, “the test for determining whether a person was seized under the Fourth Amendment or was in “Miranda custody” is essentially the same: whether a reasonable person would have felt he or she was at liberty to leave or to decline the officers’ requests to go to the detective bureau and be interviewed there.”

Burden of Proof: It is the defendant’s burden to prove he was in custody during an interrogation that produced evidence he seeks to exclude under Miranda. (United States v. Davis (5th Cir. 1986) 792 F.2nd 1299, 1309; United States v. Charles (5th Cir. 1984) 738 F.2nd 686, 692; United States v. Goldberger (D.C. Dist. Ct. 1993) 837 F.Supp. 477, 454, fn. 4.)

Detentions: Not all questioning of a criminal suspect constitutes a “custodial interrogation:”

On-The-Scene Investigations; Investigatory vs. Accusatory Questioning: Miranda does not apply to “investigative” (as opposed to “accusatory”) questioning; i.e., a “temporary detention for investigation.”

“Such investigation may include inquiry of persons not under restraint. General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding (in Miranda) . . . . In such situations the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present. (fn. omitted)” (Miranda v. Arizona, supra, at pp. 477-478 [16 L.Ed.2nd at pp. 725-726].)

People who have been temporarily detained for investigation are not “in custody” for purposes of Miranda and do not have to be warned prior to questioning (People v. Manis (1969) 268 Cal.App.2nd 653, 669; People v. Breault (1990) 223 Cal.App.3rd 125, 135; People v. Clair (1992) 2 Cal.4th 629, 675.) so long as nothing occurs which would cause a reasonable person to believe to believe he is being arrested. (See Stansbury v. California (1994) 511 U.S. 318 [128 L.Ed.2nd 293].)

However, while a “Terry stop” situation (referring to Terry v. Ohio (1968) 392 U.S. 1 [88 S.Ct. 1868; 20 L.Ed.2nd 889], authorizing a temporary detention for investigation) does not itself require a Miranda admonishment, a detention, where the suspect, at least temporarily, is not free to leave, may be one factor for the court to consider when determining whether “custody,” for purposes of Miranda, exists. (United States v. Salvo (6th Cir. 1998) 133 F.3rd 943, 949-950.)

Questioning intended to enable an officer “to determine whether a crime has been committed or is in progress” is not the type of questioning intended by the Supreme Court to require a Miranda admonishment. (Lowe v. United States (9th Cir. 1969) 407 F.2d 1391, 1393-1394.)

Initial on-the-scene questioning of a criminal suspect, so long as “brief and causal,” does not likely require a Miranda admonishment and waiver. The fact that the suspect has been handcuffed is but one factor to consider when determining whether Miranda is implicated. (People v. Davidson (2013) 221 Cal.App.4th 966.)

“Questioning under these (i.e., detention) circumstances is designed to bring out the person’s explanation or lack of explanation of the circumstances which aroused the suspicion of the police, and thus enable the police to quickly ascertain whether such person should be permitted to go about his business or held to answer to charges.” (People v. Milham (1984) 159 Cal.App.3rd 487, 500.)

See also People v. Patterson (1979) 88 Cal.App.3rd 742, 747-748; discussing “investigatory” verses “accusatory” questioning during a traffic stop of persons subsequently determined to be robbery suspects:

“It is an act of responsible citizenship for individuals to give whatever information they may have to aid law enforcement. In such situations the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present.” (Ibid, citing Miranda v. Arizona, supra, at pp. 477-478 [16 L.Ed.2nd at pp. 725-726].)

The fact that an officer deliberately delays making an arrest until after a “non-custodial” interrogation can be completed is irrelevant. The suspect has no right to an earlier arrest so as to trigger his Sixth Amendment right to counsel (and, arguably, his Fifth Amendment, Miranda rights). “There is no constitutional right to be arrested.” (Hoffa v. United States (1966) 385 U.S. 293, 319-310 [17 L.Ed.2nd 374, 386]; see also People v. Webb (1993) 6 Cal.4th 494, 527.)

However, using an otherwise lawful detention as a tool with which to coerce the employees of a business to submit to interviews, conditioning their release on answering questions, is unlawful and a violation of the Fourth Amendment, and will subject the offending law enforcement officers to potential civil liability. (Ganwich v. Knapp (9th Cir. 2003) 319 F.3rd 1115.)

Also, an interview that degenerates into an accusatory, intimidating interrogation, will correspondingly change the situation from a non-custodial interrogation into a custodial interrogation. (People v. Aguilera (1996) 51 Cal.App.4th 1151.)

It is arguable that a law enforcement officer, required by his supervisors to remain at the station pending being subjected to questioning by Internal Affairs, is not in custody for purposes of Miranda. (See Aguilera v. Baca (9th Cir. 2007) 510 F.3rd 1161, 1167-1171.)

The issue in Aguilera v. Baca was whether sheriff’s deputies were “in custody” for Fourth Amendment purposes, the Court holding that they were not. This conclusion was based upon an evaluation of some 13 separate factors. A similar argument could be made that they were also not in custody for Fifth Amendment, Miranda purposes.

Examples Where “Custody” is Lacking:

Traffic stops, at least until (and if) the subject is arrested: (Berkemer v. McCarty (1984) 468 U.S. 420, 438-439 [82 L.Ed.2nd 317, 334]; People v. Tully (2012) 54 Cal.4th 952, 982-983.)

While technically an arrest and release, traffic stops do not involve the custody normally associated with a formal arrest for a bookable offense. “(T)he atmosphere surrounding an ordinary traffic stop is substantially less ‘police dominated’ than that surrounding the kinds of interrogation at issue in Miranda itself . . .” (Emphasis added; Berkemer v. McCarty, supra, at pp. 438-439 [82 L.Ed.2nd at p. 334].)

Questioning defendant while seated in the back seat of the officer’s patrol vehicle during a traffic stop for “following too close,” held not to be “custody” for purposes of Miranda, the Court holding that the circumstances surrounding the questioning did not resemble a formal arrest in that defendant was asked a modest number of questions and never indicated that his detention would be anything other than temporary. (United States v. Johnson (8th Cir. 2020) 954 F.3rd 1106; noting that it did not matter if the motivation behind the officer’s questions was to discover evidence of criminal activity (suspecting that defendant and his passenger were transporting drugs) in that a police officer’s “unarticulated plan” has no bearing on whether a suspect is in custody for Miranda purposes.)

Traffic Stops to Investigate Criminal Activity: Stopping vehicles upon a reasonable suspicion the occupants are engaged in criminal activity. (United States v Hill (8th Cir. 1996) 91 F.3rd 1064.)

See also People v. Lopez (1985) 163 Cal.App.3rd 602, 606-609; traffic stop resulting in a “receiving stolen property” investigation.

And United States v. Sullivan (4th Cir. 1998) 138 F.3rd 126, 130-132: Officer asked defendant whether he had anything illegal in his car after completing a traffic stop, and pressed the issue when defendant became nervous, resulting in defendant’s admission to a gun under his seat. No custody.

Pre-Arrest Phase of a D.U.I. (Driving while Under the Influence) Stop. (Berkemer v. McCarty (1984) 468 U.S. 420 [82 L.Ed.2nd 317]; Pennsylvania v. Bruder (1988) 488 U.S. 9 [102 L.Ed.2nd 172]; People v. Forster (1994) 29 Cal.App.4th 1746, 1752-1754.)

This rule holds true even when a traffic accident is involved. (People v. Milham (1984) 159 Cal.App.3rd 487.)

This is true even though the officer has decided as soon as defendant steps out of his car that he will be taken into custody, so long as this intent is not communicated to the defendant. (Berkemer v. McCarty, supra, at p. 442 [82 L.Ed.2nd at p. 336].)

But see People v. Bejasa (2012) 205 Cal.App.4th 26, where it was noted that whether or not a DUI suspect is in custody for purposes of Miranda, even before a field sobriety test and the general initiation of on-the-scene questioning, is dependent upon the totality of the circumstances.

Questions asked by an arresting officer during the administration of a “Field Sobriety Test” does not, as a general rule, constitute an interrogation for purposes of Miranda. (People v. Cooper (2019) 37 Cal.App.5th 642.)

Investigating a traffic collision:

See People v. Bellomo (1992) 10 Cal.App.4th 195; e.g: “Were you the driver ”

Investigations of Criminal Activity:

Stop and detention of a burglary suspect on the street. (People v. Farnam (2002) 28 Cal.4th 107, 180-181.)

Initial stages of a child abuse investigation. (People v. Salinas (1982) 131 Cal.App.3rd 925, 936.)

Police responding to a citizen’s reports of juvenile activity (i.e., throwing rocks at cars) without any specific information as to a suspect description. (In re Victor B. (1994) 24 Cal.App.4th 521, 524-525.)

Police responding to juveniles throwing rocks at a bus contacted the minor and his companion. The officer told them they did not have to answer any questions and never indicated that they would be taken into custody; held to be a detention only. (In re Joseph R. (1998) 65 Cal.App.4th 954.)

During a temporary detention for investigation, where the subject is merely asked to identify himself, at least under most circumstances. (Hiibel v. Sixth Judicial District Court of Nevada (2004) 542 U.S. 177 [159 L.Ed.2nd 292]; refusing to identify oneself under such circumstances may subject the person to arrest for delaying the officer in the performance of his duties.)

Questioning a subject in public, in front of witnesses, does not normally involve the “incommunicado, police dominated” situation Miranda was intended to offset. Physical seizure of a suspected undocumented alien, while in a group of about 15 to 20 similarly situated individuals, was not custody for purposes of Miranda, and did not require a waiver prior to asked about the subject’s citizenship. (United States v. Galindo-Gallegos (9th Cir. 2001) 244 F.3rd 728.)

An interview of a suspect in his kitchen during which he was repeatedly told, “you’re not coming clean,” and that he was facing five years for not “coming clean;” a truthful statement about the potential consequences of making a false statement to a federal law enforcement officer during an investigatory interview, but was not so accusatory as to require a Miranda admonishment. (United States v. Howard (4th Cir. 1997) 112 F.3rd 777, 782-783.)

A six-hour interrogation of a murder suspect at the police station, where nothing was said or done to indicate that he was not free to leave (i.e., unlocked interview room, no handcuffs nor gun-use), was found to be a non-custodial interrogation. (Bains v. Cambra (9th Cir. 2000) 204 F.3rd 964.)

A consensual interview of defendant at the police station where he was questioned as a witness only, was told he was not under arrest, and nothing occurred that would have caused a reasonable person to believe that he was in custody. (People v. Zamudio (2008) 43 Cal.4th 327, 340-346; see also People v. Zaragoza (2016) 1 Cal.5th 21, 56-57; described as a consensual encounter, although done at a sheriff’s station.)

Even though questioning is brief, and takes place in the home (two factors that tend to indicate a lack of custody), a person may still be in custody for purposes of Miranda when the police presence tends to dominate the area. United States v. Brobst (9th Cir. 2009) 558 F.3rd 982, 995-997.)

During an investigation of the defendant’s missing wife and child, where the interview began as a missing person’s interview and the detective never confronted defendant, at least until the end of the hour-long interview, with his suspicions that defendant was responsible. (Stanley v. Schriro (9th Cir. 2010) 598 F.3rd 612, 618-619.)

Even when the questioning became “accusatory,” when balanced with all the other factors (including being told he was not under arrest), the defendant is still not necessarily in custody. (Id., at p. 619.)

Briefly sounding a police siren at a campsite, verbally announcing their presence, and asking the subjects to come out of their tent did not amount to an arrest. Neither did the act of asking defendant and his son to keep their hands in view. And with there being evidence that defendant’s vehicle was not completely blocked in, there was no custody for purposes of Miranda. (United States v. Basher (9th Cir. 2011) 629 F.3rd 1161, 1166-1167.)

Where defendant is detained by police upon observing him pushing a new motorcycle, with wires hanging out of it, and he attempts to hide behind a large car as the officer approached. It was held that detaining him, despite handcuffing him upon observation that he was acting “hanky,” appeared to be ready to flee, and was armed with a screwdriver, did not require a Miranda admonishment to ask him if the motorcycle belonged to him. (People v. Davidson (2013) 221 Cal. App.4th 966, 968-973.)

A detective and a deputy district attorney talking to defendant, who at that point was merely a suspect in a homicide, in his own bedroom for only 30 minutes, after telling him he was not under arrest and not obligated to speak with them, was not in custody for purposes of Miranda. Other factors the Court considered were that the detective and DDA were not dressed in a manner that asserted official authority, there was no evidence that either was armed, or if armed, that any weapon were visible, no evidence that they blocked defendant’s exit from the bedroom, defendant was not restrained, and the nature of their questioning did not appear to have been aggressive or particularly confrontational. (People v. Linton (2013) 56 Cal.4th 1146, 1167.)

No custody was found in a welfare fraud investigation in United States v. Faux (2nd Cir. 2016) 828 F.3rd 130, during a 2-hour interview, where:

The agents told defendant that she was not under arrest,
The tone of the conversation was conversational,
There was no indication the agents raised their voices while questioning defendant,
Although defendant’s movements were monitored by an agent when she used the bathroom and retrieved a sweater from a closet, the agent did not restrict defendant’s movements to the degree of a person under formal arrest,
The agents questioned defendant in the familiar surroundings of her home,
Although the agents never told defendant that she was not free to leave, she did not attempt to end the encounter, leave the house, or join her husband, who was being questioned in another room,
The agents did not display their weapons, or otherwise threaten or use any physical force against defendant, and
The agents did not handcuff defendant during the interview and she was not arrested at its conclusion.

Based on the “totality of the circumstances,” the Court concluded that the 17-year old defendant was not subjected to a custodial interrogation where the officer did not place her under arrest or handcuff her. He was the only officer present. The detention was not prolonged and occurred in a non-coercive atmosphere outside defendant’s residence. The officer’s questioning was not aggressive, confrontational, or accusatory. He simply told her that he “had gotten a call of a fight inside the house and [he] asked her what . . . happened.” The officer also did not use interrogation techniques to pressure defendant. He testified that: “She was just telling me what happened.” A reasonable person in defendant’s situation would have believed she was free to leave at any time and to terminate the interview. (In re B.M. (2017) 10 Cal.App.5th 1292, 1297-1298.)

Custody was lacking where the agents, despite having to use handcuffs to quiet a panicking defendant down, never drew their weapons, defendant was told several times that he was not under arrest and was free to leave, he was in the familiar surroundings of his own home, the interrogation lasted, at most, only several minutes, and the handcuffs were removed as soon as defendant had calmed himself down. (United States v. Familetti (2nd Cir. N.Y. 2017) 878 F.3rd 53.)

Drug Investigations. (People v. Hubbard (1970) 9 Cal.App.3rd 827; People v. Montoya (1981) 125 Cal.app.3rd 807; People v. Vasquez (1993) 14 Cal.App.4th 1158.)

Questioning a person outside an airport, after telling her that she was free to leave, held to be a consensual encounter only and not requiring a Miranda admonishment and waiver. United States v. Torres-Guevara (10th Cir. 1998) 147 F.3rd 1261; the Court further holding that even if the contact were deemed to be a detention, Miranda was not applicable. (Id., at p. 1264, fn. 4.)

Voluntary Responses by a citizen to a police officer’s inquiries concerning the contents of his pockets. (People v. Epperson (1986) 187 Cal.App.3rd 115, 119.)

Curbstone Lineup Detentions: Detention of a criminal suspect pending the bringing of the victims to his location for a curbstone lineup does not require that the suspect be admonished to ask him questions. (People v. Farnum (2002) 28 Cal.4th 107, 180-181.)

Customs Inspections are not in themselves a custody situation (United States v. Ventura (1st Cir. 1996) 85 F.3rd 708; United States v. Fernandez-Ventura (1st Cir. 1998) 132 F.3rd 844), at least until the subject is put into a holding cell. (United States v. Butler (9th Cir. 2001) 249 F.3rd 1094, 1099-1101.)

Border searches, upon initial entry into the United States, being told to go to the secondary inspection area and told to step out of the vehicle. (United States v. Leasure (9th Cir. 1997) 122 F.3rd 837, 839-840; but see United States v. Butler, supra.)

Deportation Interviews. (United States v. Montoya-Robles (Utah 1996) 935 F.Supp. 1196, and cases cited therein; Miranda admonishment unnecessary.)

Probation Violations: Investigation concerning a possible (non-criminal) probation violation. (United States v. Nieblas (9th Cir. 1997) 115 F.3rd 703.)

Defendant Registering as a Sex Registrant (per P.C. § 290(a)) at a police station is not entitled to the assistance of his attorney in that the process is not the equivalent to a custodial interrogation. (People v. Sanchez (2003) 105 Cal.App.4th 1240, 1245-1246.)

While Transporting to a Police Station:

While a non-consensual transportation of a suspect to another location is generally considered a “de facto arrest” (Kaupp v. Texas (2003) 538 U.S. 626, 630 [155 L.Ed.2nd 814, 820].), this is not always true. Holding that “(T)he police may move a suspect without exceeding the bounds of an investigative detention when it is a reasonable means of achieving the legitimate goals of the detention ‘given the specific circumstances’ of the case,” the Ninth Circuit Court of Appeal found that a defendant was not under arrest when she encouraged officers to check on the welfare of her children while intimating that she had hurt them, was told that she was not under arrest, and was transported without handcuffs. (United States v. Charley (9th Cir. 2005) 396 F.3rd 1074, 1077-1082.)

See also People v. Kopatz (2015) 61 Cal.4th 62, 80-81: Transporting defendant to the police station for questioning from the hospital, when he was not handcuffed nor patted down for weapons prior to entering the patrol car, and where defendant did not object, held not to be “custody” for purposes of Miranda.

Being voluntarily transported to the police station where he was held in a locked interrogation room for over seven hours prior to initiating questioning did not convert a detention into an arrest where there was no other indicia of custody (handcuffs, guns, etc.), and where the defendant “deliberately chose a stance of eager cooperation in the hopes of persuading the police of his innocence.” (Ford v. Superior Court [People] (2001) 91 Cal.App.4th 112.)

Where defendant voluntarily let officers escort her to the police station and agreed to submit to an interview, she was told that she was not under arrest and was free to leave. She was never handcuffed. No custody. (Dyer v. Hornbeck (9th Cir. 2013) 706 F.3rd 1134, 1137-1145.)

The Court noted that although there was not enough to overturn the trial court’s decision that defendant’s interrogation was non-custodial in a Writ of Habeas Corpus review, it was still “troubled” by the fact that the interrogation lasted for almost four hours, the time of night, distance from defendant’s home to the police station, and confronting defendant with evidence of her guilt; facts that could have been enough to off-set the fact that defendant was told she was not in custody. (Id., at pp. 1138-1139: See also the concurring opinion at pp. 1141-1144.)

Following conviction and judgment of death, defendant challenged the admission of pretrial statements under Miranda. An officer testified he was directed by detectives to transport the defendant from the hospital to the detective bureau, and the officer advised the defendant that’s where they were going. Defendant did not object. He was not handcuffed, he was not under arrest, he was not frisked, and he walked to the police car of his own accord. After an interview with detectives in an unlocked interview room, the same officer drove defendant to his brother’s home. The interview lasted less than an hour during which defendant was provided water and permitted to use the restroom. The Supreme Court reiterated that Miranda warnings are only required prior to custodial interrogation, and that defendant here was not in custody. The Court expressly found the defendant’s encounter with the officers was consensual, officers are not required to inform individuals of their right to refuse police requests, defendant knew he could leave at the end of the interview, and under the reasonable person test, a person in defendant’s position would feel free to leave. (People v. Kopatz (2015) 61 Cal.4th 62, 80.)

Over the Telephone: Defendant calling the detective on the telephone from the jail is not “custody” for purposes of Miranda. (Saleh v. Fleming (9th Cir. 2008) 512 F.3rd 548.)

When Already Lawfully Imprisoned:

Lawful imprisonment by itself, imposed upon conviction of a crime, does not involve the coercive pressures identified in the Miranda decision and thus does not constitute “Miranda custody” requiring a waiver of rights before being subject to interrogation. (Maryland v. Shatzer (2010) 559 U.S. 98 [175 L.Ed.2nd 1045]; differentiating incarceration pursuant to conviction from “Miranda [or ‘interrogative’] custody.”)

Prison inmates questioned by ICE agents, five at a time, as to their status within the United States, held not to constitute “custody” for purposes of Miranda. (United States v. Arellano-Banuelos (5th Cir. TX 2019) 827 F.3rd 355.)

See “Miranda and the Jail Inmate,” below.

Examples Where “Custody” was Found:

Custody was found where defendant’s parole officer scheduled a meeting with him at the request of federal agents. Defendant was required to attend such a meeting and was not told that the federal agents would be present. Upon arrival for the meeting, defendant was searched and escorted through a locked door to his parole officer’s office where, without the benefit of a Miranda admonishment, the two federal agents questioned defendant about an earlier undercover drug-buy. Defendant admitted his involvement only after listening to a recorded phone call between him and an FBI informant, when he admitted to being involved. Then, after a Miranda admonishment and waiver, defendant confessed. The Court also found that the agents engaged in a prohibited two-step interrogation under Missouri v. Seibert (2004) 542 U.S. 600 [159 L.Ed.2nd 643]. (United States v. Barnes (9th Cir. 2013) 713 F.3rd 1200, 1203-1207.)

The trial court’s finding of “custody” was “assume(d)” by the appellate court to be correct where even though the 15-year-old defendant was told that he was “not under arrest right now,” the detective’s tone was “calm and non-confrontational,” the interview took place in the defendant’s home (i.e., his bedroom), and lasted only 20 minutes. In contrast, the following circumstances were indicative of a custodial interrogation: I.e.; no one asked defendant if he wanted to speak with the police (defendant’s mother having let the officers into his room), defendant was not told that he was free to leave and nothing in his conduct suggested that he thought he could do so, defendant was told that an “incident” (i.e., an assault on a 61-year-old victim) had been recorded on a video, the room in which the interview took place was small with the officers standing between defendant and the door, and after some initial small-talk, defendant was questioned about the incident in question, repeatedly being told to verbalize his answers when he nodded or shrugged. Finally, the questioning ended with defendant's arrest. The Court upheld (although termed it a “close issue”) the trial court’s conclusion that the 15-year-old defendant would not have felt free to leave under these circumstances. (In re Anthony L. (2019) 43 Cal.App.5th 438, 446-447.)

Detentions vs. Arrests: Intended detentions can be (sometimes inadvertently) converted into Miranda-style custody (i.e., a “de facto arrest”) under certain circumstances, thus requiring a Miranda admonishment and waiver prior to questioning. Examples:

Indicators of an Arrest:

At Gunpoint: (People v. Taylor (1986) 178 Cal.App.3rd 217, 229; United States v. Ramos-Zaragosa (9th Cir. 1975) 516 F.2nd 141, 144.)

In Handcuffs: (New York v. Quarles (1984) 467 U.S. 649 [104 S.Ct. 2626; 81 L.Ed.2nd 550]; United States v. Purry (D.C. Cir. 1976) 545 F.2nd 217, 220.)

Putting the Suspect Into a Patrol Car: (People v. Natale (1978) 77 Cal.App.3rd 568, 572; United States v. Parr (9th Cir. 1988) 843 F.2nd 1228; United States v. Henley (9th Cir. 1993) 984 F.2nd 1040, 1042.)

“Detention in a patrol car exceeds permissible Terry limits absent some reasonable justification.” (United States v. Ricardo D. (9th Cir. 1990) 912 F.2nd 337, 340; referring to the landmark case decision on detentions and pat downs; Terry v. Ohio (1968) 392 U.S. 1 [88 S.Ct. 1868; 20 L.Ed.2nd 889].)

During an Overwhelming, Excessive Show of Force: (Orozco v. Texas (1969) 394 U.S. 324 [22 L.Ed.2nd 311].)

Defendant was asked to step away from the boarding area at an airport, his travel document are taken, and he was surrounded by seven officers with visible handguns, plus two officers who testified that they would not have allowed him to leave. (United States v. Ali (2nd Cir. 1996) 86 F.3rd 275, adopting the facts as described at 68 F.3rd 1468, 1470-1471.)

See also People v. Taylor (1986) 178 Cal.App.3rd 217, 229; felony stop with four officers, several police cars, and a police helicopter.

And see United States v. Rousseau (9th Cir. 2001) 257 F.3rd 925, where a lone police officer detained defendant at gun point and handcuffed him. Held not to be an arrest where defendant matched the description of an armed intruder from a burglary and attempted kidnapping occurring minutes earlier.

The fact that a suspect is informed of his Miranda rights, even though done prematurely, might in itself count as an indication that the subject is being arrested. (People v. Boyer (1989) 48 Cal.3rd 247, 268, 272.)

A Non-Consensual Transportation of a suspect will likely convert a detention into an arrest. (Dunaway v. New York (1979) 442 U.S. 200 [60 L.Ed.2nd 824]; People v. Harris (1975) 15 Cal.3rd 384, 390-392.)

But see Gallegos v. City of Los Angeles (9th Cir. 2002) 308 F.3rd 987; where a 2-to-1 majority found that stopping a subject at gunpoint, handcuffing him, and then transporting him back to the scene of a crime to see if the victim could identify him, a procedure which took 45 minutes to an hour, was not an arrest, but was no more than an “investigative stop (that) worked as it should.”

Reversing the Effects: When present, these custody factors may possibly be negated by (1) reholstering the guns, (2) removing the handcuffs, (3) taking the suspect out of the police car, (4) and minimizing or terminating the show of force, after which non-Mirandized questioning may begin. (People v. Taylor, supra; People v. Clair (1992) 2 Cal.4th 629, 679; In re Joseph R. (1998) 65 Cal.App.4th 954, 961; United States v. Gregory (9th Cir. 1989) 891 F.2nd 732, 733; United States v. Harley (2nd Cir. 1982) 682 F.2nd 398, 400.)

Even though not formally arrested, questioning during a detention may require a Miranda admonishment where, “the questioning has ceased to be brief and casual and becomes sustained and coercive.” (People v. Salinas (1982) 131 Cal.App.3rd 925, 936.)

Removing handcuffs and telling the defendant that he was not under arrest, along with circumstances devoid of any indications of an arrest: Defendant was not in custody for purposes of Miranda. (People v. Holloway (2004) 33 Cal.4th 96, 118-121.)

However, removing the indicia of arrest may not always break the causal connection sufficiently to guarantee the admissibility of a suspect’s subsequent incriminating statements. For instance, in United States v. Ramirez (9th Cir. 2020) 976 F.3rd 946, at p. 961, it was noted that; “No requirement exists that a defendant remain seized following an illegal seizure for the defendant’s subsequent statements to be deemed tainted by the illegal seizure.” (Citing United States v. Bocharnikov (9th Cir. 2020) 966 F.3rd1000, 1004, where defendant’s statements made eight months later, while no longer detained, in a “follow-up” interview, were held to be inadmissible as a product of his earlier illegal arrest.)

See “Removing the Indicia of an Arrest,” below.

Misdemeanor Citations: What about a misdemeanor citation (per P.C. § 853.6), particularly when written at the scene of the arrest; i.e., without transporting the subject to a police station or jail

Unknown: While arguably this involves no more coerciveness than a traffic ticket, particularly when the suspect is informed that he or she will merely be cited and released, we are without any direct authority to date upholding the admission of the subject’s statements without a Miranda admonishment and waiver. Until decided by an appellate court, because citing someone on a misdemeanor citation is in fact an arrest with the expectation that he or she will be charged with a criminal offense, it is suggested that such persons be Mirandized before questioning.

Consensual Encounters: If a person who is detained need not be Mirandized, then certainly a person who is the subject of a consensual encounter certainly need not be Mirandized. There is nothing inherently coercive in the consensual encounter situation that would require a Miranda admonishment. (See United States v. Yusuff (7th Cir. 1996) 96 F.3rd 982, 987-988.)

Questioning defendant in a three-hour interview by using “a measure of subterfuge” by leading him to believe that they were there to help him locate a snowmobile lost in the mountain snow, in an investigation of whether defendant had illegally operated a motor vehicle within a National Forest Wilderness Area (16 U.S.C. § 551, 36 C.F.R. § 261.16(a)), was held not to be a custodial interrogation. Defendant was “a man of intelligence and experience.” The interview was low key. Defendant was not prevented from leaving the room to use his cellphone. Although defendant was aware that there might be a criminal investigation coming from the incident leading to the charges, no Miranda admonishment was necessary. (United States v. Unser (10th Cir. 1999) 165 F.3rd 755, 766-767.)

Grand Jury Proceedings:

A complete Miranda admonishment is generally not required in a grand jury setting, at least where defendant is given the minimum advisal to the effect that he does not have to answer incriminating questions and that he can have access to an attorney. Reason: No custody as contemplated by Miranda. (United States v. Mandujano (1976) 425 U.S. 564 [48 L.Ed.2nd 212]; see also United States v. Washington (1977) 431 U.S. 181 [52 L.Ed.2nd 238]; United States v. Myers (6th Cir. 1997) 123 F.3rd 350, 359-362; United States v. Williston (10th Cir. Okla. 2017).)

862 F.3rd 1023.)

See also Braswell v. United States (1988) 487 U.S. 99 [101 L.Ed.2nd 98]: A custodian of corporate records may not resist a grand jury subpoena for such records on the ground that the act of production would incriminate him under the Fifth Amendment.

Note: Where a grand jury witness is given immunity, thus forcing his testimony, attempting to use his grand jury testimony against him at a later trial is violative of his Fifth Amendment compulsory self-incrimination rights. (New Jersey v. Portash (1979) 440 US. 450 [59 L.Ed.2nd 501].)

Just because the defendant’s limited command of the English language may have made it difficult for her to understand her right not to answer incriminating questions posed by a grand jury does not insulate her form being prosecuted for perjurous statements. (United States v. Wong (1977) 431 U.S. 174 [54 L.Ed.2nd 231].)

The “Beheler Admonishment;” or Taking the “Custody” Out of An Interrogation:

The Beheler Interrogation Tactic: California Peace officers are taught the available alternate tactic of using a so-called “Beheler admonishment;” or simply telling the suspect at the beginning of the interview that he or she is not under arrest, or is otherwise free to terminate the interview and leave whenever he or she so chooses. (See United States v. Norris (9th Cir. 2005) 428 F.3rd 907, 912-913; Smith v. Clark (9th Cir. 2015) 804 F.3rd 983, 986; People v. Torres (2018) 25 Cal.App.5th 162, 174.)

The Beheler case involved the following circumstances: Defendant’s companion killed a person in an attempt to steal hashish. Defendant called the police, advised them of the person who committed the murder, and gave permission for them to search his yard for the gun. Defendant voluntarily went to the station house and spoke to police about the murder, although the police did not advise him of his Miranda rights. He returned home, was later arrested, was advised of and waived his Miranda rights, and gave a second, taped confession. On appeal from the appellate court’s reversal of his conviction, the Court held that at the first interview, Miranda warnings were not required because defendant was neither taken into custody nor significantly deprived of his freedom of action in any way. Miranda warnings were not required simply because the questioning took place in the station house or because the questioned person was one whom the police suspected. That the police knew much about defendant before his interview was irrelevant, especially because it was defendant who had initiated the earlier communication with police. The length of time that elapsed between the commission of the crime and the police interview had no relevance to the inquiry. (See California v. Beheler (1983) 463 U.S. 1121 [103 S.Ct. 3517; 77 L.Ed.2nd 1275].)

Note: See also “The ‘Beheler Admonishment’ in the Jail Setting,” below.

Effects on the Custody Issue: A Beheler admonishment helps to take the coerciveness, and thus the “custody,” out of the situation, depending upon an evaluation of the totality of the circumstances. The theory is that no reasonable person would believe he or she is about to be arrested (i.e., “in custody,” or “seized,” for purposes of Miranda) when told that he or she is free to terminate the questioning and walk away. (See California v. Beheler, supra.)

The test, again, is how a reasonable person under the circumstances would have understood his position as far as whether he or she was “in custody,” the idea being that by telling the subject he is free to leave, no reasonable person would have believed he was in custody. (Berkemer v. McCarty (1984) 468 U.S. 420, 442 [82 L.Ed.2nd 317, 336]; People v. Boyer (1989) 48 Cal.3rd 247, 272.)

Note: Telling a person that he is not under arrest may not be enough by itself to negate what is otherwise an arrest in all cases. (See “Exceptions,” below, and United States v. Lee (9th Cir. 1982) 699 F.2nd 466, 467.). But even if it is not, it is at least a factor to consider when evaluating the “totality of the circumstances.” (United States v. Bravo (9th Cir. 2002) 295 F.3rd 1002.) 1011.)

Note also: Lee was decided prior to Beheler, and may not be good law anymore. The defendant in Lee was in fact advised that he was not under arrest and that he could leave the car and terminate the interview at any time. He was then released after confessing to having killed his wife. These circumstances, however, were not considered in the legal analysis by the Court.

Factors:

The Ninth Circuit Court of Appeal has listed specific factors to consider in determining whether a person is in custody when a Beheler admonishment is used:

The number of law enforcement personnel and whether they were armed;
Whether the suspect was at any point restrained, either by physical force or by threats;
Whether the suspect was isolated from others; and
Whether the suspect was informed that questioning was voluntary and that he was free to leave or terminate the interview.

(United States v. Craighead (9th Cir. 2008) 539 F.3rd 1073, 1082-1089.)

State authority has cited an even more comprehensive list:

Whether contact with law enforcement was initiated by the police or the person interrogated, and if by the police, whether the person voluntarily agreed to an interview;
Whether the express purpose of the interview was to question the person as a witness or a suspect;
Where the interview took place;
Whether police informed the person that he or she was under arrest or in custody;
Whether they informed the person that he or she was free to terminate the interview and leave at any time and/or whether the person's conduct indicated an awareness of such freedom;
Whether there were restrictions on the person’s freedom of movement during the interview;
How long the interrogation lasted;
How many police officers participated;
Whether they dominated and controlled the course of the interrogation;
Whether they manifested a belief that the person was culpable and they had evidence to prove it;
Whether the police were aggressive, confrontational, and/or accusatory;
Whether the police used interrogation techniques to pressure the suspect; and
Whether the person was arrested at the end of the interrogation.

(People v. Potter (2021) 66 Cal.App.5th 538, 539-540; quoting People v. Aguilera (1996) 51 Cal.App.4th 1151, 1162; see also In re Matthew W. (2021) 66 Cal.App.5th 392, 405.)

See also “Factors in Determining Custody,” above.

Appellate Authority: The appellate courts consistently, but with some exceptions (see below), uphold this tactic as lawful. For example:

Green v. Superior Court (1985) 40 Cal.3rd 126, 131-135: Telling a suspect he was free to leave, in a two-hour interview that was detained, but not accusatory.

People v. Chutan (1999) 72 Cal.App.4th 1276: Inviting a child molest suspect to the police station to discuss the children, telling him he was not under arrest, and bringing him back afterwards; no Miranda admonishment required.

United States v. Salvo (6th Cir. 1998) 133 F.3rd 943: Defendant was questioned by the FBI about pornographic material he possessed in several public settings, being told each time that although they had enough evidence with which to charge him, he was not going to be arrested at that time.

Baines v. Cambra (9th Cir. 2000) 204 F.3rd 964: Defendant hired another to kill his sister’s ex-husband. The ensuing investigation eventually led to Baines. He was either asked, or volunteered, to go to the police station to answer questions. He was not told he was under arrest. He was not handcuffed. No firearms were used. He was taken to an unlocked interrogation room and, without a Miranda admonishment, questioned for six hours during which he made certain incriminating statements. After failing a polygraph test, defendant asked if he could speak with a lawyer and whether he could leave. He was told no. The trial court later ruled that Baines was not in custody until he asked if he could leave, and that his statements up to that point were admissible in court against him. The Ninth Circuit Court of Appeal, in a split decision, affirmed. Per the Court; “There is no evidence here to suggest that, under clearly established federal law, a reasonable person in Bain’s situation would have felt that he was not free to terminate the police interrogation.”

See People v. Storm (2002) 28 Cal.4th 1007, 1036-1038, discussed below, for the California Supreme Court’s approval of the use of a Beheler admonishment theory.

United States v. Crawford (9th Cir. 2004) 372 F.3rd 1048: Defendant was only detained although the FBI had probable cause to arrest him. After voluntarily going with the FBI to their office, he was told several times that he was not in custody and that he was free to leave. After admitting in a one-hour interview that he did in fact commit an armed bank robbery, defendant was transported home, released, and indicted at a later time. No custody.

People v. Holloway (2004) 33 Cal.4th 96, 118-121: Despite being handcuffed initially, removing the handcuffs and telling the subject that he was not under arrest was sufficient to negate any need to Mirandize the suspect. The fact that the suspect was a parolee was irrelevant.

Defendant was specifically told he was not under arrest and, in fact, that he was free to terminate the interview at any time. Nothing was ever done or said that indicated to the contrary. And then, as promised, he was driven home after the interview. No custody. (United States v. Norris (9th Cir. 2005) 428 F.3rd 907, 912-913.)

Defendant, a minor, was brought in by his foster mother, but told that he was not under arrest and that he was free to leave. No custody despite being taken to a secure area of a police station. (In re Kenneth S. (2005) 133 Cal.App.4th 54.)

Beheler has specifically been upheld even in the jail context where a county jail inmate was questioned by a jail investigator some four days after defendant beat his cellmate, where the questioning took place in a “professional interview room” with the door left unlocked and slightly ajar, with handcuffs having been removed, the questioning was other than “accusatorial,” and the defendant was told that he was not required to talk to the investigator and that he would be taken back to his cell whenever he wished. (People v. Macklem (2007) 149 Cal.App.4th 674.)

Being told that he was not under arrest and that he was free to end the questioning and leave whenever he wished took the custody out of the questioning of a suspect in a multiple murder investigation. (People v. Leonard (2007) 40 Cal.4th 1370, 1399-1401.)

A suspect being “instructed” to follow officers to a conference room where they could have some privacy is a factor tending to indicate custody. Also, the fact that the interview took two and a half hours indicates custody, but was not a strong factor because even as such, it was not a “marathon” interview. But these factors were outweighed by the low-key, non-confrontational tone of the interview, being interviewed in a conference room at the defendant’s own workplace, and not being confronted with the evidence against him while also being told, twice, that he was not under arrest. (United States v. Bassignani (9th Cir. 2009) 575 F.3rd 879, 883-887; noting, however, that it would have been better had he been told that he was free to terminate the interview and leave at any time. (Id., at p. 886.)

The dissent similarly criticized telling the defendant that he’d be free to leave “when we’re done,” agreeing with the trial court that this shows that at least during the interview, defendant was in custody. (Id., p. 890.)

Defendant being told he was not under arrest while being interviewed about his missing wife and child, took the custody out of the interview even after it became accusatory and after defendant began making admissions. (Stanley v. Schriro (9th Cir. 2010) 598 F.3rd 612, 618-619.)

Telling defendant "And you understand that you're not in any trouble, you're not under arrest, and that you're free to leave at any time ”, along with allowing her two unaccompanied trips to the bathroom, held to be a non-custodial interrogation. (Dyer v. Hornbeck (9th Cir. 2013) 706 F.3rd 1134, 1137-1145.)

The Court noted, however (citing United States v. Craighead (9th Cir. 2008) 539 F.3rd 1073, and United States v. Brown (11th Cir. 2006) 441 F.3rd 1130, 1347.) that although there was not enough to overturn the trial court’s decision that defendant’s interrogation was non-custodial in a Writ of Habeas Corpus review, it was still “troubled” by the fact that the interrogation lasted for almost four hours, the time of night, distance from defendant’s home to the police station, and confronting defendant with evidence of her guilt, could have been enough to off-set the fact that defendant was told she was not in custody. See specifically the concurring opinion at pp. 1141-1144.)

See also United States v. Gowadia (9th Cir. 2014) 760 F.3rd 989, 992-996, where defendant voluntarily submitted to a series of non-custodial interrogations, during each of which he acknowledged that he was not in custody and free to terminate the questioning. The Court ruled that neither 18 U.S.C. § 3501(c), the McNabb-Mallory rule, nor Fed. R. Crim. Pro. 5(a) required a “without unnecessary delay” arraignment in that defendant has not yet been arrested nor detained.

Referring to McNabb v. United States (1943) 318 U.S. 332, 343-344 [87 L.Ed. 819], and Mallory v. United States (1957) 354 U.S. 449 [1 L.Ed.2nd 1479]. (See “The McNabb-Mallory Rule,” under “Statements Taken During a Delay in Arraignment,” under “Suppression Issues and Procedures” (Chapter 13), below.

See United States v. Hinkley (1st Cir. 2015) 803 F.3rd 85, for an excellent example where defendant’s interrogator did it all “by the book.” Defendant was held not to be in custody for the first 39 minutes of his interview where he transported himself to the police station, asked if he minded that the door to the interrogation be closed, advised of the route to the station’s exit in case of an emergency, questioned by only one officer, and told that he was not in custody at the beginning of the interview. He was also reminded that he was free to leave when they were 29 minutes into the interview. At the 39-minute point, defendant was then told that he was no longer free to leave and was advised of his Miranda rights, which he waived. The next day he was interviewed again and asked if he remembered his rights and wanted them read to him again. He responded that he remembered them and didn’t need to hear them again. Defendant’s motion to suppress his statements made before and after his waiver, was denied.

After driving herself to the police station (even though accompanied by a police officer), having agreed to talk with police at the station, and after being told that she was not under arrest and was free to leave at any time, taking her into an interrogation room, with the door shut, and holding onto her cellphone during the questioning, did not convert the interview into a custodial interrogation. Aside from being told that the phone would be returned to her when they were done, and despite sending an incoming call to voicemail for her (an act to which she consented), defendant was allowed to use it to call her husband when she asked. A Miranda admonishment was held to be unnecessary under the circumstances. (United States v Swan (1st Cir. 2016) 842 F.3rd 28.)

Suppression of defendant’s pre-arrest statements to a detective was not required under the Fifth Amendment because defendant was not in custody at the time. Among other factors, defendant was at his house and the detective repeatedly told him that he was not under arrest, could end the interview whenever he wanted, and was free to leave. The fact that he was arrested immediately upon attempting to leave was not enough, in itself, to find custody during the prior interrogation. (United States v. Giboney (8th Cir. 2017) 863 F.3rd 1022.)

A 12-year-old murder suspect being immediately informed that, “both of these doors are open, you are not under arrest, you’re not being detained, you’re here on your [own] free will,” and then being told that he could “get up” and “walk out anytime,” which it appeared that the minor heard and understood, “would have alerted a reasonable 12 year old that he was free to terminate the interview and leave.” (In re I.F. (2018) 20 Cal.App.5th 735, 769; the Court finding no custody.)

But see below, where the same minor was held to be in custody during subsequent interviews.

In a sting operation where defendant came to a location thinking he was going to be meeting with a 15-year-old minor for purposes of performing certain sex acts, the Seventy Circuit Court of Appeal held that the district court erred in granting defendant’s motion to suppress his incriminating statements made to federal agents in that considering all of the circumstances of the interview—from the initial encounter to the formal arrest at the end of the questioning—the Court held that he was not in custody within the meaning of Miranda. Relevant factors to determine whether a person is in custody for Miranda purposes include: 1) the location and duration of the questioning; 2) statements made by the officers; 3) the presence or absence of physical restraints during the questioning; and 4) the release of the person at the end of the questioning. The Court noted that defendant voluntarily consented to the interview and that the bedroom door where he was interviewed, although closed, remained unlocked throughout the questioning. Defendant did not face the restraint of freedom proscribed in Miranda and its progeny. Therefore his Fifth Amendment rights were not violated. (United States v. Leal (7th Cir. 2021) 1 F.4th 545; noting that defendant’s subjective beliefs are irrelevant for Miranda purposes.)

Other factors considered by the Court were that (1) defendant voluntarily consented at every stage of the encounter, stepping out of the car, complying with the pat down, surrendering his cellphone, wallet, and car keys, and accompanying the agents to the house to be interviewed and agreeing to speak with the two agents inside the interview room; (2) the agents told defendant initially that he was not under arrest, and defendant never asked the agents to end the encounter or otherwise indicated that he wanted to leave; (3) the short duration of the interview, which was less than twenty-minutes; (4) the agents did not use physical restraint or brandish their weapons; and (5) the agents did not confront defendant with evidence of his guilt until after he had voluntarily confessed. The Court also held that the fact that the agents arrested defendant at the end of the interview was not relevant in that it had no bearing as to whether a reasonable person would have believed that he was free to end the questioning and leave while the questioning took place.

Defendant was held not to be in custody during an interrogation at the police station, and therefore Miranda warnings were not required, because defendant voluntarily went to the police station two weeks after he had been told that he was suspected of having molested his daughter and, once inside the interview room, defendant was expressly told he could end the questioning and leave at any time and that the closed door was not locked. A detective’s statements to defendant indicating his belief in the daughter’s allegations and urging defendant to tell the truth did not transform the voluntary interview into a custodial interrogation because defendant was repeatedly told that he was free to leave, there were no physical restraints placed on him, and the tone and tenor of the questioning would not have caused a reasonable person in defendant’s position to believe he was not free to terminate the interviews and leave the police station. The total of three interrogations, one after the other, was no longer than 2 hours in duration. He was also allowed to leave after the questioning. (People v. Potter (2021) 66 Cal.App.5th 528.)

Exceptions: However, Beheler admonishments are not always successful in overcoming other factors which tend to indicate custody. Custody will be found where despite a Beheler-style admonishment, the suspect is treated like he is in custody.

Defendant was subject to custodial interrogation even when told he was free to leave and terminate a police interview when the totality of the circumstances, including the fact the defendant was questioned in a closed FBI car with two officers for well over an hour while police were inside his house, would have suggested to a reasonable person that he was not free to leave. (United States v. Lee (9th Cir. 1982) 699 F.2nd 466, 467-468.)

Where eight armed law enforcement officers were in the suspect’s home and the suspect was directed to a back storeroom where the door was shut and an armed detective stood at the door during the questioning. (United States v. Craighead (9th Cir. 2008) 539 F.3rd 1073, 1088: “The mere recitation of the statement that the suspect is free to leave or terminate the interview . . . does not render an interrogation non-custodial per se.”)

Despite telling a suspect that he was not in custody, custody was found where he had already been subjected to a custodial interrogation the previous day but was released only on the condition that he return the following afternoon when he would be formally booked, that if he didn’t return on time the police “would come and get him . . . and his family would not like the way they did it,” and where he had been told that a co-suspect had already been formally charged and that he would also be formally arrested and charged later that day. (Moore v Czerniak (9th Cir. 2009) 574 F.3rd 1092, 1103, fn. 11.)

People v. Aguilera (1996) 51 Cal.App.4th 1151: An accusatory two-hour interrogation involving high pressure accusations, threats and promises that only the truth could keep him out of jail. Despite being told he was not under arrest, defendant was also told that the interview was not going to end until they arrived at the truth, and they would not let him leave until they had a chance to check his alibi.

People v. Moore (2011) 51 Cal.4th 386, 402-404: The interrogation of a suspect, despite being told that he was not under arrest and would be taken home after obtaining his statement, likely became a custodial interrogation at that point when defendant’s request that the officers honor their promise to take him home was ignored and the interrogation continued.

The legal effect of telling the suspect that he was not under arrest and that he was free to leave at any time was somewhat dissipated by following that comment up with; “(W)e’re not going to arrest you right now.” This suggested that the defendant might well be arrested later (which, in fact, he was, immediately after being released and as he was walking away from the police station). (People v. Saldana (2018) 19 Cal.App.5th 432, 456-458.)

In Saldana, the defendant was eventually held to have been in custody for purposes of Miranda despite a Beheler admonishment, given the nature of the interrogation such as using sophisticated accusatorial interrogation techniques. “(W)hen a suspect has been told by the police that he is not under arrest and can leave at any time, but the contemporaneous conduct of the police nullifies that advice, the advice ‘will not carry the day.’” (Id., at p. 458, citing 2 LaFave et al., Criminal Procedure (4th ed. 2015) § 6.6(d), p. 820, fn. 64.)

The Saldana Court differentiated its facts from those occurring in Moore, supra, noting that in Moore, the police consistently referred to the defendant as a “witness” only, and the interview itself was “not . . . particularly intense or confrontational.” (Moore, at p. 402.) “For a substantial period, while [the] defendant filled in his previous statements with details, the questioning did not convey any suspicion of defendant or skepticism about his statements.” (People v. Saldana, supra, at pp. 461-462.)

Telling a 12-year-old minor that, “If you don’t want to answer a question, just tell me. ‘Sam I don't want to answer it.’ That's fine. Okay? If you don't know an answer say, ‘Hey I don't . . . I don’t know’ and that … and that’s fine also,” was held to communicate to the minor, under the circumstances, only that he could decline to answer specific questions; “it would not have assured a reasonable 12 year old that he was free to terminate the interview and leave.” And then, after approximately 30 minutes of small talk, being told: “You know there’s a door there and you know that door’s open so . . . if you want bam, you just . . . leave you alone,” was also held to be insufficient to take the custody out of the interrogation where the investigators failed to seek confirmation that the minor understood the significance of the open door, or the ambiguous invitation to “bam, you just . . . leave you alone.” And then telling the minor at the very end of that portion of the interrogation that, “(y)ou can go whenever you want, okay ”, was held to be too little, too late. (In re I.F. (2018) 20 Cal.App.5th 735, 773-775.)

In a follow-up to the above initial interview, a second interview was held at a different location with the participation of the minor’s father. As a prelude to this second interview, the investigator told the family, including the minor, that they would be leaving the district attorney’s office together “at the end of the interview.” The interrogator assured them that: “[Y]ou're free to go at any point. You don’t want to talk about anything, you just stop and get up and go.” Moments later, they were also told, “So you guys understand at any point you guys can get up and just walk out of here. Okay? No matter what happens, you guys are all still gonna leave here. Okay? Do you understand that ”, directing the comment to the minor’s father. Based upon this, the Court questioned whether these assurances were reasonably calculated to inform the minor (as opposed to the father) that he was free to terminate the interview and leave, “conflat(ing)” the idea that the minor would be leaving when the interview was over with the idea that he was free to leave at any time, creating an ambiguity as to the terms on which the minor might leave. (Id., at pp. 776-777.)

In noting that a Beheler admonishment standing alone is not sufficient to take the custody out of an interrogation, but disagreeing with the Ninth Circuit Court of Appeal in its conclusion that, “(i)t has never been the law that a police officer can insulate an otherwise clearly custodial interrogation from Miranda’s reach simply by telling a suspect that he or she is ‘not under arrest,’” (See Smith v. Clark (9th Cir. 2015) 804 F.3d 983, 988.), California’s Fourth District Court of Appeal held that a Beheler admonishment is but one factor, taking into consideration the totality of the circumstances, in determining whether a suspect is in custody for purposes of Miranda. (People v. Torres (2018) 25 Cal.App.5th 162, 174-180; finding that an interrogation became custodial despite an earlier Beheler admonishment when it became too “confrontational and accusatory.”)

Telling a 17-year-old minor, a the suspect in a stabbing, that he was not under arrest and was free to leave (while failing to also tell him that he could terminate the questioning at any time) held to be insufficient, in light other circumstances, to negate the requirement that he be advised of his Miranda rights before questioning, (In re Matthew W. (2021) 66 Cal.App.5th 392, 406-410.)

Practice Notes:

There is no case decision indicating that there is anything illegal, unprofessional, unethical, or otherwise improper in this interrogation technique.

The legality of the use of such a tactic hinges on the successful communication to the suspect the impression, as would be understood by a reasonable person, that he or she is not in custody.

This always raises an “issue of fact” for the court to determine, considering all the surrounding circumstances, whether the subject is, or is not, “in custody.” (See below)

Caution: A Beheler admonishment must be worded in such a way that it does not infer to the suspect that he or she is being offered leniency; e.g., that he is being offered a lesser punishment or given immunity, or any other consideration that might motivate the person to provide a false or unreliable confession. (See “Offers of Leniency,” under “Voluntariness After Waiver” (Chapter 9), below.)

Removing the Indicia of an Arrest:

Custody, requiring a Miranda admonishment and waiver, can be undone, in effect, by removing the indicia of an arrest, such as by putting drawn firearms away, removing the suspect from a locked patrol car, and/or unhandcuffing him, before questioning him. For instance:

Questioning a murder suspect after removing him from a locked patrol car, where he had not been searched nor handcuffed, resulted in a non-custodial interrogation. (People v. Thomas (2011) 51 Cal.4th 449, 475-478.)

Unhandcuffing a suspect at his parole officer’s office and asking him to accompany officers to their office for questioning, and then transporting him home after questioning, resulted in a non-custodial interrogation. (People v. Halloway (2004) 33 Cal.4th 96, 120.)

After removing a minor from a locked patrol car and taking the handcuffs off before questioning, a Miranda admonishment and waiver was not necessary. (In re Joseph R. (1998) 65 Cal.App.4th 954, 958, fns. 4 & 5.)

“We caution we do not suggest that Miranda warnings must be given in each instance where police officers initially use weapons or other force to effect an investigative stop. For Miranda purposes, we think the crucial consideration is the degree of coercive restraint to which a reasonable citizen believes he is subject at the time of questioning. Police officers may sufficiently attenuate an initial display of force, used to effect an investigative stop, so that no Miranda warnings are required when questions are asked.” (People v. Taylor (1986) 178 Cal.App.3rd 217, 230.)

Note: It is extremely helpful if, upon removing the indicia of an arrest, the officer follow this up with a Beheler-style admonishment, assuring the suspect that he is not under arrest.

See “Reversing the Effects,” above.

Miranda Invocations by the Out-of-Custody Suspect:

Issue: Although a suspect who is deemed not “in custody” for purposes of Miranda need not be reminded of his self-incrimination rights, per Miranda, this does not resolve the issue of whether the out-of-custody (i.e., “detained” or “consensually encountered”) suspect may effectively cut off questioning with a Miranda invocation.

Rule: The case law is quite clear that a suspect, in or out of custody, can assert his Fifth Amendment rights “in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory . . .”, if it might subject the person to potential criminal liability. (Kastigar v. United States (1972) 406 U.S. 441, 444 [32 L.Ed.2nd 212].)

There is also case law, however, indicating that attempts to invoke prior to being taking into custody are legally ineffective, so far as triggering the need to discontinue an on-going interrogation. “We have in fact never held that a person can invoke his Miranda rights anticipatorily, in a context other than ‘custodial interrogation’. . . .” (McNeil v. Wisconsin (1991) 501 U.S. 171, 182, fn. 3 [115 L.Ed.2nd 158, 171].)

Attempting to invoke before an interrogation begins, or is at least imminent, is similarly ineffective. (United States v. LaGrone (7th Cir. 1994) 43 F.3rd 332, 339.)

See Stanley v. Schriro (9th Cir. 2010) 598 F.3rd 612, 618-619, where the detective’s reinitiation of the interview after defendant invoked his right to silence and to an attorney, held to be lawful in that defendant was found not to be in custody at the time he originally invoked.

A suspect invoking his right to counsel in a non-custodial interview does not prevent officers from attempting to re-interview him at a later date. An attempt to invoke under such a circumstance has been referred to by the U.S. Supreme Court as an “anticipatory invocation,” and legally ineffective. (Bobby v. Dixon (2011) 565 U.S. 23 [132 S.Ct. 26; 181 L.Ed.2nd 328].)

However, just because Miranda does not apply to the above situations does not mean that the out-of-custody suspect may not invoke his Fifth Amendment self-incrimination rights, requiring an interrogator to “scrupulously” honor that invocation and terminate questioning, at least for the time-being. (See People v. Waldie (2009) 173 Cal.App.4th 358, 364-367; finding that the results of such an interrogation are inadmissible in court; see also People v. Ramos (2013) 216 Cal.App.4th 195, 206-297.)

“(T)he use of a defendant’s prearrest silence as substantive evidence of guilt violates the Fifth Amendment’s privilege against self-incrimination. . . . (A)pplication of the privilege is not limited to persons in custody or charged with a crime; it may also be asserted by a suspect who is questioned during the investigation of a crime.” (People v. Waldie, supra, at p. 366.)

Defendant’s refusal to submit to an interview by a detective, missing a scheduled appointment and otherwise being uncooperative, at least when combined with defendant’s express statement that she did not want to talk with the detective, held to be an invocation of her right to silence. (People v. Ramos, supra; rejecting the People’s argument that defendant’s lack of cooperation was admissible consciousness-of-guilt evidence.)

Miranda and the Jail Inmate:

General Rule: The fact that defendant is already a prison or jail inmate is a “significant factor” tending to indicate “custody” and dictating the necessity of a Miranda admonishment before questioning, at least in close cases. (See Mathis v. United States (1968) 391 U.S. 1 [20 L.Ed.2nd 381].)

Recent Trend: However, more recent authority is quite clear that this is not always the case, and in fact may be the exception to the rule. In fact, it is arguable that the rules of Miranda need to be reevaluated when the situation involves the questioning of an inmate in a prison or local jail:

“For purposes of Miranda, custodial interrogation involves ‘a measure of compulsion above and beyond that inherent in custody itself.’ (Rhode Island v. Innis (1980) 446 U.S. 291, 300 [64 L.Ed.2nd 297, 307, . . . ].)” People v. Ray (1996) 13 Cal.4th 313, 336.)

“No interrogation occurs where the purpose behind Miranda is not implicated—preventing governmental officials from exploiting the ‘coercive nature of confinement to extract confessions that would not [otherwise] be given.’ (Arizona v. Mauro (1987) 481 U.S. 520, 530 [95 L.Ed.2nd 458, 468, . . . ].)” (People v. Ray, supra, at pp. 336-337.)

Releasing a prison inmate back into the general population at the prison constitutes a break in “Miranda custody,” sufficient to allow law enforcement to reinitiate questioning after a prior invocation by defendant to the assistance of counsel. The Court set an arbitrary time period after an earlier in-custody invocation to when questioning is again allowed, sufficient to relieve the stresses of a police-dominated interrogation, at 14 days, although the break in this case was 2½ years. (Maryland v. Shatzer (2010) 559 U.S. 98 [175 L.Ed.2nd 1045].)

Lawful imprisonment by itself, imposed upon conviction of a crime, does not involve the coercive pressures identified in the Miranda decision, and thus does not constitute the “Miranda custody” which requires a waiver of rights before being subjected to an interrogation. (Ibid; Differentiating incarceration pursuant to conviction from “Miranda [or ‘interrogative’] custody.”)

See People v. Bridgeford (2015) 241 Cal.App.4th 887, 900-903, applying the 14-day rule of Shatzer to the pre-trial situation, where the defendant was released from physical custody (i.e., back onto the street), rearrested, and then questioned again without having waited the necessary 14 days between invocation of the right to counsel and re-interrogation.

Note also Trotter v. United States (Wash. D.C. 2015) 121 A.3rd 40, a case out of the federal appellate court for Washington D.C., ruling that the rule of Shatzer does not apply to the pre-trial detainee pending trial in that he is not serving a sentence of imprisonment, as was the case in Shatzer, and is still under the pressures of a pending prosecution.

“(I)t is difficult to apply the basic Miranda principles in the context of questioning directed to a prisoner who is already under detention in a custodial facility.” (People v. Macklem (2007) 149 Cal.App.4th 674, 692.)

The need for a Miranda admonition “will only be triggered by ‘some restriction on this freedom of action in connection with the interrogation itself.’” (Saleh v. Fleming (9th Cir. 2008) 512 F.3rd 548; defendant, after having previously invoked, telephoned the detective from the jail and made an admission.)

“(S)ome additional restraint, over and above mere incarceration, is required before an interrogation is custodial for Miranda purposes.” (People v. Roldan (2005) 35 Cal.4th 646, 736, fn. 41.)

On the issue of what constitutes a “restriction” sufficient to amount to “custody” for purposes of Miranda: “In the prison (or jail) situation, this necessarily implies a change in the surroundings of the prisoner which results in an added imposition on this freedom of movement. Thus, restriction is a relative concept, one not determined exclusively by a lack of freedom to leave. Rather, we look to some act which places further limitations on the prisoner.” (Cervantes v. Walker (9th Cir. 1978) 589 F.2nd 424, 428.)

The interrogation of a prison or jail inmate is not necessarily custodial just because the prisoner is removed from the general prison population and questioned about events that occurred outside the prison. (Howes v. Fields (2012) 565 U.S. 499 [132 S.Ct. 1181; 182 L.Ed.2nd 17].)

A “defendant’s incarceration for an unrelated offense does not necessarily constitute custody for Miranda purposes.” (People v. Molano (2019) 7 Cal.5th 620, 648, fn. 8.)

Factors to consider in determining whether a jail/prison inmate is in custody for purposes of Miranda include, but are not necessarily limited to (See Cervantes v. Walker, supra, at pp. 427-428; People v. Anthony (1986) 185 Cal.App.3rd 1114, 1122; United States v. Conley (4th Cir. 1985) 779 F.2nd 970, 971-974; Howes v. Fields (2012) 565 U.S. 499, 509 [132 S.Ct. 1181; 182 L.Ed.2nd 17].):

The language used to summon the inmate to the interview;
The nature of the physical surroundings of the interview;

The extent to which the suspect is confronted with the evidence against him and the pressure exerted on him.

Whether there was an opportunity given to the inmate to leave the site of the questioning.

Another Possible Factor: It may be an additional factor that:

The inmate’s interrogator was an investigator for the agency responsible for the jail, inquiring about an incident that occurred in the jail, as opposed to someone from an outside agency inquiring about an offense other than something that occurred in the jail.

(People v. Macklem (2007)149 Cal.App.4th 674.)

The Macklem Court cites Mathis v. United States (1968) 391 U.S. 1 [20 L.Ed.2nd 381], for the idea that this is a factor to consider. Mathis never really says this. The investigator in Mathis just happened to be other than a jail investigator with no discussion as to the significance, if any, of this fact. It is questionable, therefore, whether this fact is really a factor that must be considered.

More recently, in fact, the United States Supreme Court never mentions the need for the interrogation to be by a jail investigator as a factor, and specifically found whether or not the interview concerned a crime that occurred in or outside the jail to be irrelevant. (See Howes v. Fields (2012) 565 U.S. 499, 509 [132 S.Ct. 1181; 182 L.Ed.2nd 17].)

Examples:

In Cervantes v. Walker (9th Cir. 1978) 589 F.2nd 424, defendant was questioned in the prison library where he suffered no increased restriction above that already incident to his incarceration. Held: No custody for purposes of Miranda.

In response to Cervantes’ argument that his status as a prison inmate meant that he was “in custody as a matter of law,” the Court noted that such a result “would not only be inconsistent with Miranda but would torture it to the illogical position of providing greater protection to a prisoner than to his non-imprisoned counterpart. We cannot believe the Supreme Court intended such a result. Thus, while Mathis (v. United States (1968) 391 U.S. 1 [20 L.Ed.2nd 381].) may have narrowed the range of possible situations in which on-the-scene questioning may take place in a prison, we find in Mathis no express intent to eliminate such questioning entirely merely by virtue of the interviewee's prisoner status.” (Cervantes v. Walker, supra, at p. 427.)

In People v. Macklem (2007)149 Cal.App.4th 674, the Court, differentiating itself from Mathis, noted that in Mathis, the defendant “was being questioned about matters that did not arise within the prison itself, by a government agent who was not a member of the prison staff; the prisoner was therefore subjected to ‘an additional imposition on his limited freedom of movement, thus requiring Miranda warnings.’” (Citing Cervantes v. Walker, supra, at p. 428)

Macklem involved the questioning of the defendant about an assault he perpetrated while he was a county jail inmate awaiting trial on another case. The circumstances of Cervantes were similar to those of Macklem.

Defendant, a prison inmate, found standing near a dead body with 16 stab wounds, was asked by a correctional officer; “Why did you do it ” Defendant’s responses were admissible in that the officer “had not, at that time, embarked upon a process of interrogation that lent itself to eliciting incriminating statements.” Also, although in custody “in the general sense,” he was not in custody for this offense. (People v. Sanchez (1967) 65 Cal.2nd 814, 824.)

Statements obtained from a prison inmate during an interview by federal agents concerning an offense other than for what the defendant was incarcerated were held to be admissible in United States v. Menzer (7th Cir. 1994) 29 F.3rd 1223, at pages 1232-1233, the Court noting: “While it is undisputed that the defendant was incarcerated for an unrelated crime, we conclude that Menzer was not ‘in custody’ for the purposes of Miranda because there was no ‘added imposition on his freedom of movement’ nor ‘any measure of compulsion above and beyond [imprisonment].’ . . . The defendant voluntarily appeared at the interviews, he was not restrained in any manner, the room was well lit, there were two windows exposing the interview room to the prison administrative office area, the door to the interview room was unlocked and the defendant was told by Agent Eggum that he was free to leave at any time. [footnote omitted] . . . Based on the foregoing, we are in agreement with the trial court’s denial of the motion to suppress because despite the defendant’s incarceration, there was no ‘added imposition on his freedom of movement,’ [Citation] ‘nor any measure of compulsion above and beyond [the] confinement.’”

Defendant was held not to be in custody for purposes of Miranda when he telephoned the investigator from the jail and made incriminating remarks. (United States v. Turner (9th Cir. 1994) 28 F.3rd 981, 983-984.)

Defendant, a county jail prisoner, was asked by a jailer why he killed the victim (another inmate), minutes after the incident. Defendant’s response was admissible in that he was in custody “only in the general sense,” and the jailer’s questions were devoid of “inquisitorial techniques.” (People v. Morse (1970) 70 Cal.2nd 711, 720.)

See also United States v. Willoughby (2nd Cir. 1988) 860 F.2nd 15, 23-24 where defendant inmate requested the police to visit him in jail to talk about other crimes. “Though defendant was indeed a prisoner, there was no measure of compulsion above and beyond that confinement.”

And see People v. Ray (1996) 13 Cal.4th 313, at pages 336 to 338, where defendant/inmate initiated the contact, volunteered a confession for reasons that were personal to him (i.e., his religious beliefs), and was warned that his statements would be forwarded to the appropriate law enforcement agency and could lead to his prosecution.

Asking a prison inmate, “What was going on; what the problem was ”, immediately after defendant was observed attacking and stabbing another inmate and had been ordered back to his own cell, did not require a Miranda admonishment. (United States v. Scalf (10th Cir. 1984) 725 F.2nd 1272, 1276: “Because Scalf was not deprived of his freedom nor was he questioned in a coercive environment, the Miranda warnings were not required before his brief conversation with Officer Sanchez.”)

In United States v. Cooper (4th Cir. 1986) 800 F.2nd 412, at page 414, the Court noted that; “‘(C)ustody’ or ‘restriction’ in the prison context ‘necessarily implies a change in the surroundings of the prisoner which results in an added imposition on his freedom of movement.’ [Citation]”

A jail inmate who calls the police and subjects himself over the telephone to interrogation cannot later complain that he was “in custody” for purposes of Miranda. (People v. Anthony (1986) 185 Cal.App.3rd 1114, 1117: “Appellant's conversations with the police were hardly the sort of “incommunicado interrogation . . . in a police-dominated atmosphere” that operates to “overcome free choice” at which the Miranda rule was aimed.”

Similarly, a jail inmate who telephones a police investigator from jail and makes admissions is not in custody for purposes of Miranda (Saleh v. Fleming (9th Cir. 2008) 512 F.3rd 548, 550-551.)

Asking a jail inmate why he set a fire in his cell did not require a Miranda admonishment. “In the context of questioning conducted in a prison setting, restricted freedom ‘implies a change in the surroundings of the prisoner which results in an added imposition on his freedom of movement.’ [Citation]” Garcia v. Singletary (11th Cir. 1994) 13 F.3rd 1487, 1492.)

It was held in People v. Fradiue (2000) 80 Cal.App.4th 15, that a prison inmate caught with heroin in his cell and placed into “administrative segregation,” applying the four-prong analysis of Cervantes, was not in custody for purposes of Miranda when questioned. Defendant was not “summoned” to the interview; he was interrogated in his own cell where he was most comfortable; he was not “confronted” with any evidence against him, but simply asked whether the heroin was his; and, even though in administrative segregation, there were no restraints or pressures used upon him.

In Howes v. Fields (2012) 565 U.S. 499 [132 S.Ct. 1181; 182 L.Ed.2nd 17], defendant was serving a term of imprisonment in a county jail when questioned by deputies about allegations that he’d molested a twelve-year-old boy prior to being incarcerated. He was removed from the general jail population and questioned in an interview room. After being told that he could return to his cell whenever he wanted, he was questioned without the benefit of a Miranda admonishment. Noting that such a circumstance is a lot less coercive for a jail inmate than it might be for someone arrested off the street, the Court found no error in failing to Mirandize him.

The rule of Mathis (above), was not intended to impose a per se rule that all inmates are automatically in custody for purposes of Miranda. (United States v. Conley (4th Cir. 1985) 779 F.2nd 970.) Recognizing that a different test for “custody” in a jail setting is necessary, the Conley Court noted at page 973 that:

“Prisoner interrogation simply does not lend itself easily to analysis under the traditional formulations of the Miranda rule. A rational inmate will always accurately perceive that his ultimate freedom of movement is absolutely restrained and that he is never at liberty to leave an interview conducted by prison or other government officials. Evaluation of prisoner interrogations in traditional freedom-to-depart terms would be tantamount to a per se finding of ‘custody,’ a result we refuse to read into the Mathis decision.”

Despite being handcuffed, and at the time chained, during transit to the infirmary for medical treatment, during which time an incriminating conversation was had with a correctional officer, defendant was held not to be in custody for purposes of Miranda. (Ibid.)

But note Jackson v. Giurbino (9th Cir. 2004) 364 F.3rd 1002, finding that a defendant’s inmate status necessarily meant that he was in custody, and that a Miranda advisal and waiver was necessary before he could be questioned. This is a questionable decision in light of the abundance of case authority to the contrary, made without any analysis of the issue.

The Ninth Circuit Court of Appeal further held that the use of this defendant’s un-Mirandized inculpatory statement against him at trial potentially made the offending deputy sheriff (along with the Ventura Sheriff’s Department [but not the District Attorney’s Office]) civilly liable for a Fifth Amendment self-incrimination violation, despite the fact that he was again convicted in a re-trial without using the inculpatory statement; again a questionable decision under Chavez v. Martinez (2003) 538 U.S. 760 [155 L.Ed.2nd 984] and subsequent cases (See Miranda’s Relationship to the United States Constitution,” under “The Fifth Amendment and Miranda” (Chapter 1), above). The Court further noted, however, that damages were likely “minimal” under the circumstances. (See results on remand: Jackson v. Barnes (9th Cir. 2014) 749 F.3rd 755; reversing the trial court’s granting of summary judgment.)

Caveat: However, it should not be forgotten that being an inmate is one factor to consider, and cannot be ignored when determining whether a person, prior to interrogation, should be Mirandized. (Mathis v. United States (1968) 391 U.S. 1 [20 L.Ed.2nd 381].)

Prison/jail Witnesses: When a subject is in custody, but he or she is interviewed as a witness as opposed to a criminal suspect, a Miranda admonishment is not required. (People v. Wader (1993) 5 Cal.4th 610, 637.)

Note: Never suggest to a criminal suspect that cooperation could lead to his being “treated as a witness instead of a suspect.” Such an admonition is likely to be considered an “offer of leniency,” invalidating any resulting statements. (See “Offers of Leniency,” under “Voluntariness After Waiver” (Chapter 9), below)

But see People v. Anthony (2019) 32 Cal.App.5th 1102, 1114-1127: where it was held to be Miranda error to question an in-custody defendant about the prior murder of a member of his gang where defendant was also an intended victim, which allegedly motivated the charged crime, even though he was told that they were not there to discuss the case he was in custody on, but rather the prior shooting only. Defendant had invoked his right to counsel when arrested on the new case. The detectives here ignored his prior assertion of his Miranda rights, did not advise him of his rights after defendant reinitiated the questioning by asking to speak with them. Also, defendant had been left in an interview room wearing physical restraints for four and a half hours. When asking defendant questions relating to the prior murder where he was a co-victim, it was held that the detective should have known that this interview was likely to result in defendant incriminating himself by providing evidence of motive. However, the error was harmless, given the strength of the other evidence.

And see People v. Tousant (2021) 64 Cal.App.5th 804, 823-824; differentiating the facts of this case from those in Anthony, where the defendant (in custody on a weapons charge) was questioned by an Oakland police officer about his son’s murder without a Miranda admonishment, resulting in defendant making statements relative to a Berkeley shooting that at the time, the officer knew nothing about. No Miranda admonishment was required, it being held that no “interrogation” occurred.

The “Beheler Admonishment” in the Jail Setting:

Interrogation Tactic: It is a common interrogation tactic to question a suspect without a Miranda admonishment, often at a police station, after giving the suspect what is referred to as a “Beheler admonishment;” i.e., an admonishment to the effect that the subject is not under arrest and is free to leave or otherwise terminate the questioning. (See California v. Beheler (1983) 453 U.S. 1121, 1124-1125 [103 S.Ct. 3517; 77 L.Ed.2nd 1275, 1278-1279], discussed above.)

The test, again, is how a reasonable person, under the circumstances, would have understood his position as far as whether he or she was “in custody,” the idea being that by telling the subject he is free to leave (or free to terminate the conversation), no reasonable person would have believed he was in custody. (Berkemer v. McCarty (1984) 468 U.S. 420, 442 [82 L.Ed.2nd 317, 336]; People v. Boyer (1989) 48 Cal.3rd 247, 272.)

In the Jail Context: A jail inmate may also be “Behelered” by telling him that he is free to terminate the questioning and “return to his cell” at any time. (See United States v. Menzer (7th Cir. 1994) 29 F.3rd 1223, at pages 1232-1233.)

Beheler in the jail context has specifically been upheld where an inmate was questioned by a jail investigator some four days after defendant beat his cellmate, where the questioning took place in a “professional interview room” with the door left unlocked and slightly ajar, with handcuffs having been removed, the questioning was other than “accusatorial,” and the defendant was told that he was not required to talk to the investigator and that he would be taken back to his cell whenever he wished. (People v. Macklem (2007) 149 Cal.App.4th 674.)

See also United States v. Menzer, supra, at pp. 1232-1233, and Howes v. Fields (2012) 565 U.S. 499 [132 S.Ct. 1181; 182 L.Ed.2nd 17], above.

During Wiretaps:

Rule: Statements obtained during a lawfully authorized wiretap (per P.C. §§ 629.50 et seq.) are not the product of a custodial interrogation nor the product of police coercion. Therefore, the Fifth Amendment self-incrimination privilege is not applicable. (People v. Zepeda (2001) 87 Cal.App.4th 1183, 1194.)

During Telephone Interviews:

Rule: Even with probable cause to arrest, interviewing a criminal suspect over the telephone is not a custody situation requiring a Miranda admonishment and waiver:

There is no coerciveness as in a face-to-face confrontation. (People v. Murphy (1982) 8 Cal.3rd 349; People v. Strohl (1976) 57 Cal.App.3rd 347.)

Cases:

In negotiations with a suspect over the telephone in a hostage situation, attempting to talk the suspect into surrendering, a Miranda admonishment was not necessary. (People v. Mayfield (1997) 14 Cal.4th 668, 733-735.)

Defendant, while in jail, telephoned the investigator and made incriminating statements. No custody for purposes of Miranda (People v. Anthony (1986) 185 Cal.App.3rd 1114.)

See also Saleh v. Fleming (9th Cir. 2008) 512 F.3rd 548, 550-551.

On Appeal:

The issue of “custody” on appeal involves a mixed question of law and fact, warranting independent review by a federal court on habeas. (Thompson v. Keohane (1995) 516 U.S. 99 [133 L.Ed.2nd 383].)

In determining whether an interrogation is custodial, an appellate court will accept the trial court’s factual findings if supported by “substantial evidence.” The Court will then independently determine, as a “legal issue,” whether the interrogation was custodial. (People v. Aguilera (1996) 51 Cal.App.4th 1151, 1161.)

Chapter 3: The Custodial Interrogation

Interrogations:

Rule:

“‘A defendant who is in custody … must be given Miranda warnings before police officers may interrogate him.’ (People v. Haley (2004) 34 Cal.4th 283, 300. . . . (fn. 2; see below) Custodial interrogation means ‘questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ (Miranda, supra, 384 U.S. at p. 444; accord, Illinois v. Perkins (1990) 496 U.S. 292, 296 [110 L.Ed.2nd 243; 110 S.Ct. 2394]; People v. Thomas (2011) 51 Cal.4th 449, 476. . . .) Statements obtained in violation of Miranda are generally inadmissible; they may be admitted for the limited purpose of impeachment if otherwise voluntarily made. (Harris v. New York (1971) 401 U.S. 222, 225 [28 L.Ed.2nd 1; 91 S.Ct. 643]; People v. Case (2018) 5 Cal.5th 1, 26. . . .)” (People v. Alvarez (2022) 75 Cal.App.5th 28, 32.)

Footnote 2: “‘As a prophylactic safeguard to protect a suspect's Fifth Amendment privilege against self-incrimination, the United States Supreme Court, in Miranda, required law enforcement agencies to advise a suspect, before any custodial law enforcement questioning, that “he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.’” (People v. Martinez (2010) 47 Cal.4th 911, 947 . . . ), quoting Miranda, supra, 384 U.S. at p. 479.)”

Note: Defense counsel in Alvarez was held to have forfeited the issue as to whether defendant’s response to a question asked by an arresting officer was admitted into evidence in violation of Miranda. It was presumed, without deciding, that defendant should have been Mirandized prior to the asking of the question in issue. (Id., at p. __.)

The Miranda safeguards are required “not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation.” (Rhode Island v. Innis (1980) 446 U.S. 291, 300 [64 L.Ed.2nd 297, 307].)

“Miranda’s rule has a limit: It only applies when the suspect-defendant was the subject of ‘custodial interrogation.’” (People v. Orozco (2019) 32 Cal.App.5th 802, at p. 811; citing Miranda v. Arizona, supra, at p. 444; see also In re J.W. (2020) 56 Cal.App.5th 355, 359.)

“Implicit in the definition of ‘interrogation’ is that (1) the suspect is talking to the police or an agent of the police, and (2) the suspect is aware that he is talking to the police or one of their agents.” (Italics in original; People v. Orozco, supra, at p. 813.)

“‘Absent such interrogation, there would have been no infringement of the right.’ (Citation) Accordingly, any statements sought to be suppressed must have been the product of interrogation.” (Robertson v. Pichon (9th Cir. 201) 849 F.3rd 1173, 1183-1184, citing Rhode Island v. Innis, supra, at pp. 485-486.)

Note: Contrary to the image perpetrated upon the public by television, the arrest itself is not the triggering occurrence to the Miranda requirement. A subject who is not then and there to be questioned (with the exception of juveniles; see below), need not be given a Miranda admonishment.

Definition: An “interrogation” is defined as:

“(Q)uestioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” (In re Joseph H. (2015) 237 Cal.App.4th 517, 530; citing Miranda v. Arizona, supra, at p. 444.)

Any “words or actions” by the police that the police knew or should have known are reasonably likely to elicit an incriminating response (Rhode Island v. Innis (1980) 446 U.S. 291, 300-302 [64 L.Ed.2nd 297, 307-308].)

“ . . . other than those normally attendant to arrest and custody . . .” (Kemp v. Ryan (9th Cir. 2011) 638 F.3rd 1245, 1255; People v. Elizalde et al. (2015) 61 Cal.4th 523, 531; People v. Torres (2018) 25 Cal.App.5th 162, 173; United States v. Smialek (8th Cir. 2020) 970 F.3rd 1070; In re J.W. (2020) 56 Cal.App.5th 355, 360.)

An interrogation includes not only express questioning, but also applies to any “words or actions” on the part of the police that the police should know are reasonably likely to elicit an incriminating response. This definition focuses primarily upon the perception of the suspect rather than the intent of the police. But the intent of the police is not irrelevant to this issue. A police interrogator’s intent may well have a bearing on whether he the interrogator should have known that his words or actions were reasonably likely to evoke an incriminating response. (People v. Gomez (2011) 192 Cal.App.4th 609, 628; citing Rhode Island v. Innis, supra, at p. 301, fn. 10 [64 L.Ed.2nd 297, 307]; see also People v. Tousant (2021) 64 Cal.App.5th 804, 821; “focuses primarily upon the perceptions of the suspect, rather than the intent of the police.”

“Interrogation . . . must reflect a measure of compulsion above and beyond that inherent in custody itself.” (Rhode Island v. Innis, supra, at p. 300.)