The arson ruling is pretty straightforward. God bless the California Appellate Project for arguing that because the defendant was being evicted, he didn’t want to live there anymore, couldn’t live in the house after he sparked the joint on fire, so the house was uninhabitable! Love it!
The is the second arson case we have reported this year. Also refer to “Is Alcohol a Device Designed to Accelerate a Fire” – LUPC #CAB00195, 1/27/23).
No doubt the investigator here was acting in “good faith” when conducting this interview. But this case points out what should not be done during a voluntary interview:
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Miranda is only required for a custodial interrogation. The rule applies when a person is placed under arrest or subjected to treatment tantamount to arrest. We don’t Mirandized people for drill. No custody – No Miranda – Question Away.
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The fact that a suspect is brought to the police station for questioning does not, in and of itself, trigger custody. That’s why we give a Beheler Admonition (“You are not under arrest. Do you understand? You are free to leave at any time. Do you understand? You can choose not to answer my questions. Do you understand?”) (California v. Beheler (1983) 463 U.S. 1121) Memorialize this in the same way you would a Miranda admonition and waiver.
Examples:
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Detectives sought to question a parolee about a double homicide. When he reported to the parole office, his parole agent handcuffed him and called detectives. When detectives arrived, they removed the handcuffs and apologized for the restraint. The defendant was told he was not under arrest and free to leave. He agreed to go to the police station for questioning, rode with officers in an unmarked car and was not handcuffed. At the station, he was offered coffee and the use of the restroom before being interviewed. He made incriminating statements. After the interview, he was given a ride back to the parole office. The court ruled that a reasonable person in the defendant’s position would not have believed his freedom was restricted to the degree associated with a formal arrest. The act of temporary handcuffing was attenuated by other non-custodial factors (Peo. v. Holloway (2004) 33 Cal. 4th 86).
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The defendant had physically and sexually abused his girlfriend’s seven-year-old daughter over a three-year period. She was beaten with a belt, forced into oral, vaginal and anal intercourse, and penetrated with physical objects causing orifice tearing and bleeding. The defendant threatened to kill the victim or “throw her out of the house” if she told anyone about the acts. Orange Police Department officers went to the defendant’s home and asked him if he would come to the police station to talk about “his involvement with the children at the house.” He agreed and accepted an offer to ride with the officers because he had no other means of transportation. He was told that he wasn’t under arrest, he was not handcuffed and during a two-mile ride to the police station in an unmarked police car there was a casual conversation with officers about soccer. At the station, the defendant admitted to committing five sex acts. No Miranda warning was given. He was driven home once questioning had concluded and arrested later. The 4DCA ruled that there were no restraints on the defendant’s freedom of movement and he was not in custody during questioning (Peo. v. Chutan (1996) 72 Cal. App. 4th 1276).
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The defendant was a “person of interest” in six robbery-homicides. Sacramento County Sheriff’s Office detectives went to his home and asked him if he would come to the station to answer some questions and be fingerprinted. The defendant stated he was busy but would come down the following day. The next day, he was transported to the station in a marked patrol unit, seated in the back of the police car, but not handcuffed. Upon arrival at the station, he was fingerprinted and placed into an unlocked, interview room. Defendant declined to take a polygraph test or consent to a search of his apartment. He agreed to answer questions. Prior to questioning, the defendant was given a Beheler admonition. Detectives interviewed him for 3 1/2 hours. Questioning was conducted in a non-accusatory manner and the questioning proceeded methodically because it was known that the defendant suffered from a mental disability (“mild-moderate” with an I.Q. of 78-80). During the interview, the defendant was allowed to use the restroom and call his father and a friend. He made a statement about purchasing ammunition similar to the caliber used in the killings. After the interview, the defendant was returned home. Follow-up investigation recovered a handgun the defendant had left with his father. It was matched through ballistics to the murders. The court ruled that there was no arrest or restraint on the defendant’s freedom of movement. A reasonable person, even with the defendant’s disabilities, would have been free to terminate the questioning and leave. A videotape provided a clear record of the “totality of circumstances” surrounding the questioning (Peo. v. Leonard (2007) 40 Cal. 4th 1370).
3) A person cannot invoke his or her constitutional right to counsel unless they are in custody. In this instance, the investigator could have continued questioning despite a request for counsel. Obviously, there is a point of diminishing returns here if the suspect refuses to answer further questions.
Example:
Miranda rights cannot be asserted in an “anticipatory” manner. A person must be in custody for a request for an attorney to have legal effect (Bobby v. Dixon (2011) 132 S. Ct. 26).
There are additional references and discussion of these topic areas in Bob Phillips’ “Miranda and the Law – The Fifth Amendment,” July 2022. This publication, available to Pro Subscribers of LEGALUPDATES.COM, is second to none and is used by peace officers, DDAs, defense counsel, and even Superior Court judges. It covers concepts ranging from investigative work in gaining statements to preparing a brief for a motion to suppress (1538.5 P.C / 402(b) E.C.)
For Next Time
Areas to keep in mind next time you are going to conduct a voluntary interview (Peo. v. Saldana (2018) 19 Cal. App. 5th 432):
1) Whether contact with law enforcement was initiated by the police or the person-of-interest
2) Whether a person voluntarily agreed to be interviewed
3) Whether the purpose of the interview was to question a person as a suspect or witness
4) Where the interview took place
5) Whether the police informed the person that he or she was not under arrest and free to terminate the interview at any time
6) Whether the person’s conduct indicated an awareness of such freedom
7) Whether there were any restrictions on the person’s freedom of movement
8) How long the interview lasted
9) How many officers conducted the interview and whether they dominated or controlled the course of the interview
10) Whether the police were aggressive, confrontational or accusatory
11) Whether the police used interrogation techniques to pressure the suspect
12) Whether the person was arrested at the end of the interview.
Example:
Investigators from the Sacramento Police high-tech crimes unit served a search warrant seeking child pornography images on the defendant’s Petaluma workplace computer. The defendant was directed to a conference room and before the interview was told, “You’re not under arrest,” “You’re not being arrested” and “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. Given the “totality of circumstances,” non-custody factors outweigh custody factors three to two.
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: reports said “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 instructing the defendant to go to the conference room and the lengthy time of interview, 2 1/2 hours, although it was not deemed a marathon session designed to force a confession. (Peo. v. Bassignani (2009) 575 F. 3d 879)
Stay Safe,
RH
