• Miranda v. Arizona, and the Issue of Custody
• The Products of a Miranda Violation
• Consensual Searches

Whether or not a person is in custody for purposes of Miranda depends upon the totality of the circumstances. Evidence seized as the product of a Miranda violation does not necessitate its suppression.  A consent to search must be freely and voluntarily obtained to be legally valid.

In November, 2016, defendant Julian Mora-Alcaraz went to the home of his estranged wife, Geneva, and their seven-year-old son, for the apparent purpose of accosting her new boyfriend.  During the confrontation, defendant brandished a semi-automatic firearm of some sort (not described in the written decision).  Things apparently cooled down to the point where defendant was allowed to stay the night, sleeping on the couch.  The next morning, defendant left Geneva’s house with their son, apparently with her permission, taking him to a nearby shopping mall.  Although not defendant’s biological son, defendant and the boy had a close father-son relationship.  That same morning, Officer Jackins of the Reno, Nevada, Police Department took a report concerning the domestic disturbance from the night before, including the fact that defendant had brandished a firearm.  Officer Jackins called defendant via his cellphone and asked him to meet him at the mall in front of a sporting goods store so they could talk about the events from the evening before, and to do a welfare check on the child.  Defendant agreed.  When Officer Jackins arrived at the store, he came with three other armed, uniformed, officers, in two police cars (apparently with amber lights flashing). Contacting defendant in front of the sporting goods store as planned, Officer Jackins asked to speak with defendant away from the boy, and defendant agreed. Two of the officers therefore escorted the boy to the entrance of the store, and then inside because the boy was cold.  Officer Jackins asked defendant about the events from the night before, the questioning being in what Officer Jackins later described as a low-key discussion; i.e., a technique he referred to as a “kill them with kindness” approach.  During the ensuing conversation, a cooperative defendant admitted to Officer Jackins that he was in the country illegally.  He also admitted to having the gun he’d brandished the night, which he kept in his truck.  Defendant agreed to let Officer Jackins see the gun.  Officer Jackins drove defendant across the parking lot to defendant’s pickup truck.  Officer Jackins seized the gun from defendant’s truck, promptly arresting him for being an alien in possession of a firearm; a violation of 18 U.S.C. §§ 922(g)(5)(A) and 924(a)(2).  At no time during this encounter was defendant advised of his Miranda rights.  After being indicted in federal court, defendant filed a motion to suppress the firearm as well as his statements.  The district court judge ruled that defendant had in fact been subjected to a custodial interrogation without the benefit of a Miranda advisal and waiver, and that his statements to Officer Jackins were therefore inadmissible.  Finding that defendant’s statements as made to Officer Jackins “may have led to (defendant’s) consent to search,” the gun was also suppressed.  The Government appealed.

The Ninth Circuit affirmed in part and reversed in part.  On appeal, the Government argued that neither defendant’s incriminating statements nor the gun should have been suppressed. 

(1)  Admissibility of Defendant’s Statements:  Defendant made certain incriminating statements to Officer Jackins concerning his citizenship status and his ownership of the gun, both of which the trial court suppressed as the product of an un-Mirandized interrogation.  Whether or not defendant’s statements survive a Miranda challenge depends upon whether defendant was in custody at the time.  In making this determination, the Court looked to five specific factors; i.e., “(1) the language used to summon the individual; (2) the extent to which the defendant is confronted with evidence of guilt; (3) the physical surroundings of the interrogation; (4) the duration of the detention; and (5) the degree of pressure applied to detain the individual.”  (United States v. Kim (9th Cir. 2002) 292 F.3rd 969.)  The Court found that each of these factors tended to diminish the coerciveness of the questioning with the sole exception of the last, the police having “undoubtedly (created) . . . a police dominated atmosphere.”  Specifically, despite expecting to meet only Officer Jackins at the mall, defendant was suddenly confronted by four armed officers in two police cars, with one of the vehicles blocking the travel lane with its amber lights flashing.  More importantly, defendant was separated from his seven-year-old son, the Court noting that “the police were well aware that a father would not walk away from a public place and leave his young son with strangers. .  .  .  He could not leave.”  Based upon this alone, the Court held that “the totality of the circumstances” dictated that defendant was in custody for purposes of Miranda, and that the trial court ruled correctly in holding that without an admonishment and wavier, defendant’s statements were properly suppressed.  (But see “Note,” below.)

(2) Admissibility of the Firearm:  The trial court held that the Miranda violation “may have led to (defendant’s) consent to search,” and thus required that defendant’s gun must also be suppressed.  The Ninth Circuit, however, held here that such suppression was a bit premature, and reversed this finding.  The United States Supreme Court has held that physical evidence obtained as a result of a custodial interrogation without Miranda warnings is nevertheless admissible.  (United States v. Patane (2004) 542 U.S. 630.)  In other words, the exclusionary rule does not apply to Miranda violations.  Defendant appeared in this case to have given his consent to Officer Jackins to enter his truck and seize the firearm. This being the case, the issue left undecided is whether defendant’s consent to search his truck and retrieve his gun was freely and voluntarily obtained.  The fact alone that defendant was not advised of his Miranda rights—although a factor to consider—“is not ‘dispositive of whether an individual consented to a search.’”  (United States v. Ritter (9th Cir. 1985) 752 F.2nd 435.) The Court therefore remanded the case back to the trial court for an evidentiary hearing on the issue of whether defendant’s consent was voluntary. 

I have to disagree with the Court here (and the trial court) on the issue of whether defendant was in custody for purposes of Miranda when questioned about the gun and his immigration status, and that he needed to be admonished of his Miranda rights under these circumstances.  Assuming for the sake of argument that defendant was in fact “detained,” that fact alone does not, as a general rule, trigger the need for a Miranda admonishment.  Although it is admittedly difficult to determine where to draw the law between “Miranda custody” (as it is often referred to) and a mere detention, the Court here—while finding only one of the five U.S. v. Kim factors that applied—totally ignores the clear case law to the effect that a simple detention alone does not generally require that the subject be admonished.  I have a pile of cases on this point, but one good one is People v. Pilster (2006) 138 Cal.App.4th 1395, at page 1406, where the Court noted:  “In contrast (to Fourth Amendment, search and seizure issues), Fifth Amendment Miranda custody claims do not examine the reasonableness of the officer’s conduct, but instead examine whether a reasonable person (in the defendant’s position) would conclude the restraints used by police were tantamount to a formal arrest.”  In other words, Miranda does not generally kick in unless the suspect has actually been arrested, or he subjectively feels like he’s about to be arrested.  In this case, although defendant was arguably detained after his son was led away, it seems pretty clear that defendant was neither under arrest, nor did anything occur that would have made him feel like he was about to be arrested, until after the gun was seized from his car.  I’m sure Officer Jackins didn’t consider defendant to be under arrest, or that there was any need for a Miranda admonishment until after the gun was seized, so he can hardly be faulted.  He certainly did everything he could to keep the contact non-confrontational and low key, which is usually enough to avoid the necessity for a Miranda admonishment and waiver. But this case, if nothing else, highlights the simple rule of thumb for officers while questioning a detained suspect: When in doubt, Mirandize, or expect a lot of second-guessing from the courts afterwards.