• Miranda; Questioning Minors
• Interviews of Minors and the Issue of Custody
• The Effectiveness of a Beheler Admonishment

Absent a determination that a criminal suspect is in custody, a Miranda advisal and wavier is not legally required in order to question him.  However, telling a suspect that he is not under arrest and not in trouble does not necessarily, depending upon the circumstances, render the suspect not in custody for purposes of Miranda.  The fact that a suspect is known by a police interrogator to be a minor is a factor to consider in determining whether he is in custody.

17-year-old defendant Matthew W.—all 5’ 6” and 130 pounds of him—was sitting in his car on Main Street in the City of Napa during the early morning hours (i.e., between 12:45 and 1:00 a.m.) of January 21, 2020, waiting for his friend, 17-year-old Andrew G., to sneak out of his house so the two of them could hang out together.  Although later testimony from defendant, Andrew, and Ralph C. (the victim in this case) varied in some respects, particularly as to who was the primary aggressor, the following generally describes what occurred. Andrew, in his haste to meet up with his bud, ran (or “walking at a fast pace”) out from behind a fence next to a car and almost ran into Ralph C.  Ralph, pushing his bike down the street, was on his way to a 7-Eleven.  Ralph was described in the case decision as a homeless man who lived in a nearby storage shed.  At the time, he was 57 years of age, 5’ 10” or 11” tall, and weighing some 230 pounds.  He was also an admitted alcoholic, drinking a fifth of vodka a day.  That night, although denying he was under the influence, Ralph admitted that he had taken a “hit” on a marijuana cigarette earlier.  On the preceding Sunday (two days earlier), he had ingested some methamphetamine.  But that doesn’t mean Ralph wasn’t a good citizen.  Thinking that Andrew might have been breaking into the car, Ralph asked Andrew what he was doing.  An apparently stressed Andrew responded, as he ran past Ralph and across the street, that he lived there.  Believing that he “was being bullshitted,” Ralph gave chase down the street using a flashlight for illumination.  While some 100 yards behind Andrew, Ralph noticed a Mustang flashing its lights at the end of the block.  Andrew ran pass the Mustang, telling it’s occupant (later determined to be defendant) to “be cool,” that there was a “tweaker” following him.  Catching up with Andrew, Ralph got off of his bike and asked him why he was running and what was going on.  Defendant later claimed Ralph was not nearly so polite, hearing him threaten Andrew’s life.  Either way, while Ralph was confronting Andrew, defendant came up from behind him and screamed; “Leave my friend alone,” or words to that effect.  Defendant threw what was at first believed to be a simple punch at Ralph, but later determined to be defendant slashing at Ralph with a knife, causing a deep cut to Ralph’s left bicep. The wound later required Ralph to undergo surgery, leaving him with a numbness in his thumb and limited movement in his fingers due to nerve damage.  Defendant and Andrew retreated to defendant’s house to discuss the night’s events.  Andrew was later summoned by his father to return home and defendant went to bed.  At 6:00 a.m. (while it was still dark), Napa Police Department Detective Brendt Keown (wearing a “marked police vest” and cargo pants) showed up at defendant’s home with four uniformed police officers, all of whom were visibly armed.  Defendant’s mother answered the door.  Upon the detective asking if they could speak with defendant, mom allowed Detective Keown and two of the officers inside while she summoned defendant from his bedroom.  Defendant came out of his room and was immediately asked if he would consent to being patted down for weapons.  After the patdown, the detective and defendant sat down at the kitchen table to talk while one of the uniformed officers stood 10 to 15 feet behind him and the other by the front door, near the kitchen.  Defendant’s mother’s request to be present during the questioning was denied, but she was allowed to wander about the house at will, generally close enough to hear what was going on.  When defendant complained about being cold, Detective Keown pulled a blanket off a nearby couch and gave it to him.  Detective Keown then told defendant that he wanted to talk to him about what had occurred that night.  Despite having already interviewed Andrew, who told him that defendant had stabbed Ralph, Detective did not tell defendant he was a suspect in the stabbing.  Nor did he read him his Miranda rights.  Instead, he told defendant that he was not under arrest and that he (the detective) was there just to ask defendant some questions.  Defendant asked whether he was in trouble, to which Detective Keown responded; “No. I just need to know what happened.”  Defendant was not handcuffed nor did any officer draw a gun during the questioning.  The questioning was “calm and professional,” and “not particularly lengthy.”  In the ensuing interrogation, defendant admitted to having stabbed Ralph, although he intimated that Ralph had been the aggressor.  Following the questioning, defendant was arrested.  Charged in Juvenile Court by the Napa County District Attorney with one count each of assault with a deadly weapon (P.C. § 245(a)(1)) and assault by means likely to produce great bodily injury (P.C. § 245(a)(4)), plus various allegations, a true finding was made by the magistrate following a contested jurisdictional hearing.  Placed on probation, defendant appealed.

The First District Court of Appeal (Div. 2) reversed.  At the Juvenile Court disposition hearing, defense counsel objected to the admission of Detective Keown’s testimony concerning defendant’s admissions relative to having stabbed Ralph, arguing that no “foundation” had been laid.  In other words, defendant argued that absent a Miranda advisal and waiver, defendant’s statements were inadmissible.  Holding a hearing on this issue, the Juvenile Court Magistrate ruled, in effect, that defendant was not in custody when questioned, and that no Miranda admonishment and wavier was legally required.  The Appellate Court disagreed.  The rules on this issue are well settled even though not always easy to apply to any given situation.  Miranda is inapplicable unless the person being questioned is in custody.  Whether or not a person is in custody when questioned by the police is “resolved by an objective standard;” i.e., “(w)ould a reasonable person interpret the restraints used by the police (during the questioning) as tantamount to a formal arrest ”  In determining this issue “(t)he totality of the circumstances surrounding an incident must be considered as a whole.” 

Those circumstances include (but are not limited to), the following:

(1) 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; (2) whether the express purpose of the interview was to question the person as a witness or a suspect; (3) where the interview took place; e.g., at the police station or in the suspect’s home; (4) whether police informed the person that he or she was under arrest or in custody; (5) 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; (6) whether there were restrictions on the person’s freedom of movement during the interview; (7) how long the interrogation lasted; (8) how many police officers participated; (9) whether the police dominated and controlled the course of the interrogation; (10) whether the police manifested a belief that the person was culpable and they had evidence to prove it; (11) whether the police were aggressive, confrontational, and/or accusatory; (12) whether the police used interrogation techniques to pressure the suspect; and (13) whether the person was arrested at the end of the interrogation.

The Court further noted that “no one factor is dispositive. Rather, (a court is to) look at the interplay and combined effect of all the circumstances to determine whether on balance they (the police) created a coercive atmosphere such that a reasonable person would have experienced a restraint tantamount to an arrest.” (In re I.F. (2018) 20 Cal.App.5th 735, 759; People v. Aguilera (1996) 51 Cal.App.4th 1151, 1162.)  Further, the Supreme Court has set out the rule 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.’”  (J.D.B. v. North Carolina (2011) 564 U.S. 261, 277.)  With these principles in mind, the Court held that contrary to the Juvenile Court Magistrate’s ruling, defendant was in fact in custody when questioned by Detective Keown, and should have been Mirandized.  In so holding, the Court looked at the circumstances of this case.  Indicating a lack of custody was the fact that the questioning was presumed (given the lack of any evidence to the contrary) to be “calm and professional” and (without telling us exactly how long) “not particularly lengthy.”  Questioned in his own home (as opposed to the police station), defendant was told he was not under arrest.  At no time was defendant handcuffed, or any other restrains used.  The officers never unholstered their weapons.  Balanced with this, however, the Court found “(m)any other circumstances” indicating that defendant’s interrogation was custodial.  For instance, the questioning (which the Court declined to call an “interview,” noting that defendant was in fact “interrogated”) was initiated by the police.  The purpose was to question defendant as the suspect (as opposed to a mere witness) in a serious crime; i.e., a stabbing.  Initiating the questioning with a patdown for weapons, the whole purpose was to get defendant to admit to additional incriminating information.  While maybe “calm and professional,” the questioning in general was viewed as “accusatorial.”  Additionally, the Court considered the fact that initially, five armed police officers showed up at defendant’s door early in the morning.  Although defendant’s mother may have consented to defendant being questioned, defendant himself was never asked.  In addition to Detective Keown, two other visibly armed officers were present during the interrogation, with one standing behind defendant and the other guarding the nearby front door.  When complaining about being cold, defendant was given one rather than allowing him to leave the room to fetch his own, “reasonably suggest(ing) to defendant a restriction on his freedom of movement.”  Also, despite being told that he was not under arrest and not in trouble, defendant was never told that he was free to terminate the interrogation or to leave at any time.  Per the Court:  “All of these circumstances would have suggested to defendant that he was not free to leave the kitchen or the house itself.”  And then aside from all this, the Court added in the fact that defendant’s age—as a 17-year-old minor—whose mother was not allowed to be present during the questioning, “would certainly have intensified the effect of the factors just discussed in causing him to feel ‘pressured to submit’ to the police interrogation.”  Lastly, defendant was in fact arrested at the end of the interview.  “In conclusion, considering ‘the interplay and combined effect’ of all of the circumstances surrounding the police interrogation,” the Court found “on balance, that the police officers in this case ‘created a coercive atmosphere such that a reasonable [17 year old] would have experienced a restraint tantamount to arrest.’” The Court therefore overruled the Juvenile Court Magistrate on this issue and, finding the admission of defendant’s statement into evidence to be “prejudicial,” reversed the jurisdictional findings and dispositional order in this case.

What Detective Keown attempted to do was administer what has become known as a “Beheler admonishment,” named for the landmark U.S. Supreme Court case decision of California v. Beheler (1983) 463 U.S. 1121.  This interrogative ploy involves an officer’s attempt to take the “custody” out of an interrogation by telling the suspect that he is not under arrest and is free to terminate the questioning at any time.  (See Smith v. Clark (9th Cir. 2015) 804 F.3rd 983, 986; People v. Torres (2018) 25 Cal.App.5th 162, 174.)  The theory is that no reasonable person, having been told his is not in custody, could subsequently believe he is in custody. As noted by the Court here (and piles of prior case law), if there’s no custody, then there’s no need for a Miranda admonishment and waiver.  While I’ve never been a big fan of the wholesale use of this theory (it creating a situation where a simple admonishment and waiver would have eliminated the issue altogether, assuming the suspect is of the frame of mind where he would likely have waived if asked), the simple fact is that it typically works.  And because it works, many officers have fallen into the habit of using it in the vast majority of their interrogation situations.  But it has to be recognized that not all courts like this interrogation tactic, and sometimes, such as here, will look for reasons to tell us that a Beheler admonishment does not always work.  In my Miranda Outline (available upon request), I have cited eight separate prior cases where a Beheler admonishment failed to take the custody out of an interrogation, necessitating the suppression of the defendant’s confession or admission.  Most notable is a case cited by the Court here; United States v. Craighead (9th Cir. 2008) 539 F.3rd 1073, where, at page 1088, the Ninth Circuit tells us: “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.”  If this legal mumbo jumbo doesn’t make sense to you, what they’re saying is that it doesn’t always work.  In this new case briefed here, Detective Keown told defendant that he was not in trouble and that he was not under arrest.  He failed to mention that Matthew could also leave or just terminate the interview at any time.  But I’m not sure—given how hard and how deep the Court had to dig to find reasons why Matthew was in custody despite the detective’s best efforts—it would have made any difference even if Detective Keown had given a full Beheler admonishment.  I got the distinct impression that this Court had a goal in mind, and that was to find custody no matter what.  I also feel, however, that had Detective Keown just advised Matthew of his Miranda rights, he would have waived.  Matthew really felt justified in attempting to save his friend Andrew from that crazy drunk who had unnecessarily accosted him.  So an issue was, in my never-to-be-so-humble opinion, unnecessarily created by the detective that, in the end, had a negative result.