• Miranda and the Non-Custodial Interrogation:
• The Beheler Admonishment:

A Beheler admonishment, telling a suspect that he is not under arrest and is free to go, at least under the right circumstances, avoids the need to Mirandize a criminal suspect before questioning him.

Defendant Robert William Potter had been sexually molested by an uncle when he was 12 or 13 years old.  He also engaged in “inappropriate sexual contact” with his brother and sister when he was still a child, and then again with his sister when he was a little older.  None of this, apparently, was ever revealed.  Defendant eventually married and had several children, including a daughter referred to here simply as “H.”  Over the first five years of H.’s life, defendant and his wife separated several times.  Once, in 2015 when H. was three years old, she’d told her mother that defendant had put his penis in her mouth (calling it the “popsicle game.”).  But H. refused to talk about it when interviewed by counselors at the “special assault forensic evaluation” (SAFE) center, and defendant denied the accusation.  So defendant’s wife let him back into their lives, although not for long.  In March, 2017, when H. was five years old, she again complained about being sexually abused by defendant.  This time, she was able to talk about it with a police officer and then again to counselors at the SAFE center.  So defendant’s wife took the children (H. and the other sibling, K.), and left him.  Following up on this complaint, Detective Jenny Wirtz called defendant via telephone on December 5, 2017, and asked him if he would agree to come down to the police station for an interview.  Defendant said that he would.  But before this conversation was over, Detective Wirtz asked defendant if he’d ever been sexually assaulted in his past.  Defendant said that he had, telling Detective Wirtz about the incidents with his uncle and siblings.  Told that “(t)here's been some allegations,” defendant responded that he had not spoken to H.’s mother since she “took ’em away,” adding: “So I—I have no information on anything.”  Talking briefly about the allegations H. had made against him, defendant denied any wrongdoing. While continuing to deny that he’d molested his daughter, defendant eventually agreed to come to the station to undergo a polygraph examination.  He finally came to the station two weeks later—December 19th—and was placed in an interview room.  He was contacted by Detective Konrad VonSchoech who was to conduct the pre-polygraph interview.  Detective VonSchoech immediately told defendant that the interview was completely voluntary, adding “you don’t have to talk to me if you don’t want.”  Defendant responded: “I got you.”  But to be sure defendant understood, Detective VonSchoech further told defendant:  “You can stop this anytime you want and walk out, there's the door.”  Acknowledging that the door was closed, Detective VonSchoech explained that it was closed “for privacy, but it’s unlocked.” Defendant stated: “Right I know what you mean.” The detective continued: “You can walk out anytime you want, right ”  From this point on, in a 30-minute interview, the Detective VonSchoech discussed with defendant H.’s allegations in a manner that apparently made defendant feel like the detective was on his side, and that the molest was not all defendant’s fault, given his prior history of being abused himself.  The questioning centered on the fact that defendant had never been given the opportunity to receive treatment for the problems his abuse had caused him, and that they only way his daughter (who he continually claimed to love very much) could recover from her having been abused by defendant would be for defendant to acknowledge what he had done.  Defendant eventually admitted to molesting H.  He was then moved to a second interview room where Detective Wirtz spoke with him for about an hour and a half in two separate interviews.  At the initiation of the first interview, Detective Wirtz advised defendant that that the door to the room was unlocked and that he was free to leave.  Defendant repeated his admission to having committed at least one incident of oral copulation with H., and then adding to his confession an admission to five other similar incidents.  At Detective Wirtz’s suggestion, defendant also wrote an apology to H. for having molested her.  Although intending for this interview to be recorded, it was soon discovered that the recorder wasn’t working.  So defendant submitted to a third, recorded, interview.  At the beginning of this third interview, Detective Wirtz told defendant: “Um, so again thank you for coming in voluntarily. You're not under arrest. The door’s unlocked. You[’re] free to go, um, at any time.”  Defendant thereafter repeated his confession to the six separate incidents where he’d orally copulated H.  After having been questioned for a total of under two hours in the three interviews described above, defendant was released to return home.  He was physically arrested three days later.  Charged in state court, defendant challenged the admission into evidence of his three confessions, arguing that his Fifth Amendment self-incrimination rights had been violated because he had not been advised of his Miranda rights.  The trial court denied his motion, admitting into evidence his confessions. Convicted of one count of oral copulation with a child 10 years of age or younger, defendant was sentenced to serve an indeterminate term of 15 years to life in state prison.  He appealed.

The Third District Court of Appeal affirmed.  Acknowledging that defendant was never read his Miranda rights, the issue on appeal was whether his questioning by Detectives Wirtz and VonSchoech constituted a “custodial interrogation.”  Defendant argued that his questioning was in fact “custodial,” and that without a Miranda admonishment and waiver, his confessions should have been suppressed.  The Court disagreed.  The legal standards on this issue are now quite well settled. 

“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.]” (Quoting People v. Moore (2011) 51 Cal.4th 386, 394–395.)

Applying these standards, the Court noted that Detective Wirtz’s initial contact with defendant over the phone did not involve custody, and defendant did not argue otherwise.  (Although not an issue in this case, there is actually case law that says this; i.e., Saleh v. Fleming (9th Cir. 2008) 512 F.3rd 548.)  As to defendant’s subsequent questioning in the three separate interviews, all while at the police station, the Court considered the following.  The fact that the questioning in issue all took place at a police station is a factor tending to indicate that defendant was in fact in “Miranda-custody” at the time, and should have been Mirandized.   So was the fact that defendant was questioned as a suspect, as opposed to a mere witness.  However, the Court found these two factors to be out-weighed by other factors to the contrary.  First, defendant went to the police station voluntarily, hoping, perhaps, to outsmart the polygraph machine.  More importantly, defendant was expressly told a number of times by both Detectives Wirtz and VonSchoech that he was not under arrest, he did not have to talk with the detectives, he was free to go at any time, and that the door to the interview room, although closed for purposes of privacy, was not locked.  Further, he was neither handcuffed nor otherwise restrained in any way.  None of the interrogations were “particularly intense or confrontational,” the trial court characterizing the questioning sessions, lasting less than two hours in total, to be more akin to a “therapy session” than a typical interrogation.  It was also a factor that defendant was not confronted with an assertion that the police knew he was guilty, that they had evidence to prove it, and that any denials were useless.  And although Detective “VonSchoech’s professed understanding and sympathy for defendant’s situation were undoubtedly an interrogation tactic designed elicit a confession, and while the detective did in fact indicate that he believed H.’s allegations and implored defendant to tell him the truth about molesting his daughter, the Court also noted that “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.”  Based upon the “totality of the circumstances,” the Court determined that defendant was not in custody for purposes of Miranda, and that the trial court had therefore not abused its discretion in finding that a Miranda admonishment and waiver was legally unnecessary.

Police interrogators telling a criminal suspect that he is not under arrest and that he is free to go in preparation to an interrogation is commonly referred to as a “Beheler admonishment,” based upon the landmark U.S. Supreme Court decision of California v. Beheler (1983) 463 U.S. 1121.  The Court here never referred to what Detectives Wirtz and VonSchoech did as a “Beheler admonishment,” but that’s exactly what the detectives did.  And the detectives laid it on thick, which has been shown to be a good idea considering the fact that a poor job at attempting to give a weak Beheler admonishment will sometimes result in the suppression of a defendant’s subsequent confession.  (E.g., see In re Matthew W.  (Jul. 8, 2021) 66 Cal.App.5th 392.)  Given the rule that whether or not a person is in custody for purposes of Miranda depends upon whether a “reasonable person, under the circumstances, would have believed he was in custody,” any attempt to take the custody out of an interrogation depends upon the court’s consideration of all the surrounding circumstances, and how it would have affected a reasonable person.  Courts have ruled that a number of factors need to be considered in making this decision.  (See pages 539-540 of this decision, and my brief on In re Matthew; Cal. Legal Update, Vol. 26, #11, Oct. 20, 2021.)  As illustrated in Matthew W., and as discussed in my brief of that case, Beheler admonishments aren’t always successful and shouldn’t be attempted as a matter of routine.  Unfortunately, some police interrogators have made Beheler their go-to interrogation tactic, with a proper Miranda admonishment and waiver the exception. Recognizing that maybe 90% or more of the criminal suspects you intend to question will waive their Miranda rights and talk to you, my suggestion has always been that it is better to save the Beheler admonishment alternative for the rare suspect who, given his attitude and overt lack of cooperation, is likely to invoke.  This helps to eliminate having to litigate an issue that maybe 25% of the time we lose.  This case here is an example of one we happen to have won. But in my Miranda outline, I have nine other appellate court cases where we lost; and those are only the ones that made it to an appellate court.  I can send you those cases, or the entire Miranda outline, if you want it.