Chapter 5 - §2. Elements for exclusion

• Jurisdiction: United States

§2. Elements for exclusion

A defendant's statement will be excluded as a violation of the Fifth Amendment if (1) at the time the statement was made, the protections provided by the Miranda rule applied, and (2) law enforcement did not comply with those protections—that is, they did not provide the defendant with adequate warnings informing him of his rights, obtain a proper waiver of those rights from the defendant, or honor the defendant's invocation of those rights.

§2.1. Miranda applied. For the protections of Miranda to apply, a person must have been subject to a custodial police interrogation. A custodial police interrogation occurs when three conditions exist: (1) the subject is in custody, (2) while in custody, the subject is interrogated, and (3) the interrogation is conducted by law enforcement or their agents (most commonly, the police). See Stansbury v. California (1994) 511 U.S. 318, 322; Illinois v. Perkins (1990) 496 U.S. 292, 296; Rhode Island v. Innis (1980) 446 U.S. 291, 298; Miranda v. Arizona (1966) 384 U.S. 436, 444-45.

Note

The protections provided by the Miranda rule apply regardless of whether the subject is in custody for a minor offense, a misdemeanor, or a felony. See Berkemer v. McCarty (1984) 468 U.S. 420, 434.

1. Subject was in custody. The first condition for Miranda to apply is that the subject be in custody. Stansbury, 511 U.S. at 322; Miranda, 384 U.S. at 444. A subject is considered to be "in custody" when he is formally arrested or when his freedom of movement is curtailed to a degree associated with formal arrest—that is, when the subject is "deprived of his freedom of action in any significant way." See Berkemer, 468 U.S. at 440; Miranda, 384 U.S. at 477; People v. Caro (2019) 7 Cal.5th 463, 491; People v. Potter (3d Dist.2021) 66 Cal.App.5th 528, 539; In re I.F. (3d Dist.2018) 20 Cal. App.5th 735, 759. This deprivation of freedom is commonly referred to as the functional equivalent of formal arrest. See People v. Young (2019) 7 Cal.5th 905, 923. To determine whether a person is in custody, courts make a two-step inquiry. See Howes v. Fields (2012) 565 U.S. 499, 508-09.

(1) Would reasonable person feel free to leave. The first step is to determine whether, in light of the objective circumstances of the interrogation, a reasonable person would have felt that he was not free to terminate the conversation and leave the scene. Howes, 565 U.S. at 509; U.S. v. Mora-Alcaraz (9th Cir.2021) 986 F.3d 1151, 1155; see Yarborough v. Alvarado (2004) 541 U.S. 652, 662; Berkemer, 468 U.S. at 442; Caro, 7 Cal.5th at 491; People v. Kopatz (2015) 61 Cal.4th 62, 80. To determine whether a reasonable person would feel free to leave, courts must examine all the circumstances surrounding the interrogation. Howes, 565 U.S. at 509; Potter, 66 Cal.App.5th at 539; People v. Saldana (4th Dist.2018) 19 Cal.App.5th 432, 455; see In re I.F., 20 Cal.App.5th at 759; In re B.M. (2d Dist.2017) 10 Cal.App.5th 1292, 1297, rev'd on other grounds, (2018) 6 Cal.5th 528. No one factor is necessarily dispositive. People v. Boyer (1989) 48 Cal.3d 247, 272, disapproved on other grounds, People v. Stansbury (1995) 9 Cal.4th 824; In re IF, 20 Cal.App.5th at 759; People v. Aguilera (6th Dist.1996) 51 Cal.App.4th 1151, 1162; People v. Forster (4th Dist.1994) 29 Cal.App.4th 1746, 1754. The totality of all the circumstances is considered in determining whether on balance they create a coercive atmosphere such that a reasonable person would have experienced a restraint tantamount to an arrest. Aguilera, 51 Cal.App.4th at 1162; In re Matthew W. (1st Dist.2021) 66 Cal.App.5th 392, 405. Because only the objective circumstances of the interrogation are considered, the undisclosed views harbored by either the interrogating officer or the subject being questioned are irrelevant. Stansbury, 511 U.S. at 323, 325; Caro, 7 Cal.5th at 491-92; see, e.g., Berkemer, 468 U.S. at 442 (officer's unarticulated plan to arrest subject once he stepped outside car had no bearing on custody determination). Some of the objective circumstances that the courts have identified as being relevant for determining whether a subject was in custody for Miranda purposes include the following:

• Whether the police or the subject initiated the encounter. Potter, 66 Cal.App.5th at 539; People v. Torres (4th Dist.2018) 25 Cal.App.5th 162, 172-73; Aguilera, 51 Cal.App.4th at 1162.

• If the police initiated the encounter, whether the subject voluntarily agreed to an interview. Potter, 66 Cal.App.5th at 539; Torres, 25 Cal.App.5th at 172-73; Aguilera, 51 Cal.App.4th at 1162; see California v. Beheler (1983) 463 U.S. 1121, 1121-22; Kopatz, 61 Cal.4th at 80-81; People v. Moore (2011) 51 Cal.4th 386, 402.

• Whether the police communicated or otherwise manifested to the subject their belief in the subject's culpability, the nature of interrogation, or the strength of the evidence against the subject. See Stansbury, 511 U.S. at 325; Mora-Alcaraz, 986 F.3d at 1156; Potter, 66 Cal.App.5th at 540; Torres, 25 Cal. App.5th at 172-73; Aguilera, 51 Cal.App.4th at 1162. A clear statement from the police that the subject under interrogation is the prime suspect is not, by itself, dispositive of whether the subject was in custody. Stansbury, 511 U.S. at 325.

• Where the interview took place (e.g., the police station, a police cruiser, a public place or street, the subject's home). Mora-Alcaraz, 986 F.3d at 1156; Moore, 51 Cal.4th at 395; Potter, 66 Cal.App.5th at 539; Aguilera, 51 Cal.App.4th at 1162; Forster, 29 Cal.App.4th at 1753; e.g., Mora-Alcaraz, 986 F.3d at 1156-57 (police dominated environment and pressure applied to D by separating him from his son established custody even though duration of interview was relatively short and took place in parking lot); Caro, 7 Cal.5th at 492-93 (whether interview conducted in hospital room in presence of hospital staff was custodial depended on whether reasonable person would have believed that subject could be left to herself if desired); People v. Stansbury (1995) 9 Cal.4th 824, 834 (fact that interview was conducted in jail section of police station was not, by itself, sufficient to establish suspect was in custody); Potter, 66 Cal.App.5th at 541-42 (suspect was not in custody when he arrived voluntarily to take polygraph examination at police station and told he could end the interview anytime); Torres, 25 Cal.App.5th at 172-73 (fact that interview was conducted in unmarked police car, which was controlled by detectives, with doors closed and engine running weighed in favor of finding suspect was in custody).
• If the subject was first approached at one location and then interviewed at another location, whether the subject was offered the choice to drive himself or was required to ride with the police. Stansbury, 9 Cal.4th at 831-32.

• Whether the police informed the subject that he was not in custody or that he was free to terminate the interview and leave at any time, or whether the subject's conduct indicated he was aware he had such freedom. Potter, 66 Cal.App.5th at 539-40; Aguilera, 51 Cal.App.4th at 1162; see U.S. v. Bassignani (9th Cir.2009) 575 F.3d 879, 886 ("[w]e have consistently held that a [D] is not in custody when officers tell him that he is not under arrest and is free to leave at any time"); see, e.g., In re M.S. (2d Dist.2019) 32 Cal.App.5th 1177, 1188 (15-year-old D was not "in custody" when officers told her she was free to leave and did not have to participate in video reenactment of events leading to birth and eventual death of her child at her home). But see Saldana, 19 Cal.App.5th at 457-58 (although officers told D he was not under arrest and was free to leave, detective's unrelenting number of accusatory questions and repeated rejection of D's denial supported finding that D did not feel free to leave).

• Whether there were any "objective indicia of arrest," such as use of handcuffs, a frisk, or orders restricting the subject's freedom of movement. See Moore, 51 Cal.4th at 395; Boyer, 48 Cal.3d at 272; Potter, 66 Cal.App.5th at 540; Aguilera, 51 Cal.App.4th at 1162.

• The length of the interrogation. Caro, 7 Cal.5th at 491-92; Moore, 51 Cal.4th at 395; Potter, 66 Cal. App.5th at 540; Torres, 25 Cal.App.5th at 172-73; Aguilera, 51 Cal.App.4th at 1162.

• The number of police officers involved in the questioning. Potter, 66 Cal.App.5th at 540; Torres, 25 Cal.App.5th at 172-73; Aguilera, 51 Cal.App.4th at 1162; see, e.g., People v. Roberts (6th Dist.2021) 65 Cal.App.5th 469, 480 (suspect apprehended at a bowling alley by an "arrest team" at gunpoint was in custody).

• The language used and demeanor exhibited by the police toward the subject (i.e., whether the officers performed the questioning in an aggressive, confrontational, or accusatory manner, or whether they took a friendly, neutral, or courteous approach). See Moore, 51 Cal.4th at 396; Torres, 25 Cal.App.5th at 172-73; Saldana, 19 Cal.App.5th at 459; Aguilera, 51 Cal.App.4th at 1164; Forster, 29 Cal.App.4th at 1753-54.

• Whether the interrogation culminated in the arrest of the subject. Torres, 25 Cal.App.5th at 172-73; Aguilera, 51 Cal.App.4th at 1162; see People v. Leonard (2007) 40 Cal.4th 1370, 1401; Potter, 66 Cal. App.5th at 540.

• Whether the police approached the subject with weapons drawn or gave him orders concerning his movements (e.g., told him to put his hands up). See People v. Benally (6th Dist.1989) 208 Cal.App.3d 900, 911.

• In the case of a juvenile, the minor's age if it was known by the officer or if it would have been objectively apparent to a reasonable officer. J.D.B. v. North Carolina (2011) 564 U.S. 261, 277; In re Matthew W, 66 Cal.App.5th at 405-06; In re I.F., 20 Cal.App.5th at 760; see People v. Delgado (3d Dist.2018) 27 Cal. App.5th 1092, 1104.

• In the case of a juvenile, the presence or absence of a parent. E.g., In re I.F., 20 Cal.App.5th at 762 (parent's presence and participation in interrogation

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