"FROM THE CLASSROOM"
By Ray Hill, Professor Emeritus, Santa Rosa Junior College
“Its ‘402’ time, officer” - “Who Wins, You or Defense counsel”? Note: 402(b) E.C. – A pre-trial court hearing to determine the admissibility of an admission or confession.
Examining Custody Factors for the Purposes of Miranda (United States v. Zabel (2022) 6USCA 35 F 4th. 493).
This is the ninth in a series of mini-articles covering basic Miranda and Confession Law. This review is equally applicable to detectives and those generalists who are assigned to investigate their own case
First, a recognition to Daly City P.D. Officers Nick Martin and Jonathon Kong. They were the primary officers in the gun search and arrest case reported in “Are Vehicle Searches Legal After Finding Ammunition on a Passenger”? (8/22/22 - LU Ref. # CAB00173). Proactive patrol work like this makes Daly City a safer place in which to live and work. Thank you!
Earlier this month, I was instructing a "Laws of Arrest" course to sixty-two students in the 209th Basic Police Academy at the Santa Rosa Public Safety Training Center. We were discussing probable cause to arrest. A student presented a scenario question. When I replied, “Book ‘um Danno” (the classic phrase that Commander Steve McGarrett used to say to his junior sidekick Danny Williams in the original 1968-1980 TV series Hawaii Five-O when the bad guy was arrested), I got sixty-two blank stares!! The only chuckles came from two “more seasoned” Recruit Training Officers in the back of the classroom! Sometimes you realize that you have more “age seniority” than your audience!
There are two elements that make up the Miranda requirement – Custody and Interrogation. Here is an interesting case reviewing the custody factors that a magistrate will consider in deciding whether or not a Miranda admonition should have been given.
National Park Service Rangers responded to a report of a sex offense committed at Mammoth Cave National Park in Kentucky. They interviewed a female park employee. She told them that while in an elevator, the defendant (who was a restoration contractor at the cave site), had pinned her against the wall, attempted to kiss her, grabbed her breasts and buttocks, and exposed his penis.
After obtaining a suspect description, rangers used an elevator to gain entrance to the cave floor. They walked 25 minutes within darkened passages to the construction site. They introduced themselves to a group of workers and asked, “Is there anyone here named Jason”? The defendant raised his hand and confirmed his identity. Rangers asked, “Come this way and chat with us for a few minutes”. Defendant followed the rangers to a location approximately two minutes away where his co-workers could not hear their conversation. Defendant asked, “Is there a bathroom around here”? A ranger replied, “We’re quite a way from there”. “Your going to have to hold it for a few minutes”.
Before initiating any questioning, a ranger told the defendant that he “was not under arrest”, “he was free to go”, “he did not have to talk to them (rangers)”, “it was his option to do so” and “they would much rather he be quiet than lie to them” (all recorded on a body worn camera). Defendant asked to relieve himself in a bucket located a distance away from the interview location (he was “unsure how much further that he’d be able to hold it”). A ranger responded, “Alright, first”, then proceeded to question the defendant. During 20-minutes of questioning, defendant made several incriminating admissions (“I may have been a little erect or excited”). Defendant was escorted from the cave, allowed to relieve himself on the way out, and he was not handcuffed until reaching the cave entrance due to the hazardous walk out. Defendant was eventually convicted of the federal crime of Knowing Engaging in Sexual Conduct Without Another Person’s Permission.
On appeal, defendant argued that his freedom of movement had been restrained to a degree associated with a formal arrest and because he was not “Mirandized” his statements were not legally obtained. In deciding the issue of custody, the appellate court reviewed four factors: 1) The location of the interview; 2) The length and manner of questioning; 3) Whether there was actual restraint on the person’s freedom of movement; and 4) Whether the individual was told that he or she did not have to answer questions.
Location – The location of the interview was the defendant’s place of employment (he had worked at the site for 6-7 months). The court stated questioning that takes place at a person’s place of employment (a familiar location) is less intimidating than questioning at the police station.
Length and Manner of Questioning – The questioning was short in duration (20 minutes), the ranger’s demeanor was respectful, and the defendant even asked if he could shake the ranger’s hand after the interview.
Restraint of Freedom of Movement – The court noted the strongest factor indicating restraint was the rangers’ not allowing the defendant to immediately use the bathroom and instead began the interview. This issue was mitigated by the fact that the defendant was told that he wasn’t under arrest and did not have to answer questions. Defendant ‘s appeal was denied. He was not subjected to a restraint on his freedom of movement in the manner commonly associated with an arrest. (See Robert Phillip’s “Miranda and Confession Law – The Fifth Amendment”, July 2022, Pages 98-109).
Bottom Line – No custody, no Miranda! Also note, the body worn camera footage was very important here in upholding the U.S. Attorney’s burden of proof!
Here is a California case dealing with a “voluntary interview” at the workplace:
Investigators from the Sacramento Valley High Tech Crimes Unit served a search warrant seeking child pornography images on the defendant’s workplace computer in Petaluma. Defendant was directed to a conference room and before interview was told, “you’re not under arrest”, “you're not being arrested”, “you'll walk out of here when we're done”. During a 2-1/2-hour interview, the defendant confessed. He was not taken into custody. The appellate court ruled that non-custody factors outweighed custody factors three to two, so no Miranda admonition was required. Non-custody factors included the interview being conducted in an open, friendly tone, (the defendant was not confronted with evidence of guilt and the investigator never adopted an aggressive, coercive, or deceptive tone); the interview location was familiar to the defendant (“Bassignani had a complete understanding of the overall situation”); and the defendant was never physically restrained (he was told several times he was not under arrest and would be permitted to leave after the interview). “Custody factors” included directing the defendant to go to the conference room and the lengthy time of interview (2-1/2 hours – “However this was not a marathon session designed to force a confession” (United States v. Bassignani (2009) 9USCA 575 F3d. 879).