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• Miranda and a Knowing and Intelligent Waiver
• The Two-Step Missouri v. Seibert Interrogation Tactic

The use by law enforcement of a two-step interrogation tactic by obtaining a pre-Miranda-admonishment confession, followed by a Miranda admonishment and waiver and a second confession, violates the rule that a Miranda waiver, to be valid, must be knowingly and intelligently made.

Defendant Byron Silim Sumagang and 20-year-old Carole Sangco were boyfriend-girlfriend despite having a tumultuous relationship.  Their relationship was complicated by the fact that Sangco was severely depressed, had reoccurring thoughts of suicide, and was addicted to methamphetamine.  Their relationship was further complicated by incidents of physical abuse perpetrated by defendant against Sangco, as later testified to by friends of the couple.  Then, on November 30, 2014, police responded to a 911 hang-up call directing them to a remote rural area in Monterey County.  The first sheriff’s deputy on the scene found a sleeping defendant sitting in a car with Sangco’s head in his lap. Sangco, with visible injuries to her face and neck, was quickly determined to be deceased.  Upon waking defendant, he became visibly upset and crying, telling the deputy that he was not supposed to wake up.  He made other spontaneous statements that were consistent with the physical evidence at the scene, indicating that the two had consumed copious amounts of drugs and alcohol and that defendant had tried to set fire to the car they were in.  Defendant made other statements indicating that he had attempted to commit a murder-suicide; that Sangco told him she wanted him to kill her but that he had “forgot(ten) to kill myself, too.”  Defendant was taken into custody and booked. Various experts later testified to Sangco’s probable cause of death.  The forensic pathologist who autopsied Sangco’s body testified that Sangco had died from asphyxiation due to smothering with manual strangulation.  She also testified, however—with a toxicology test coming back positive for methamphetamine and cocaine—that drugs may have hastened Sangco’s death.  A second expert used by the prosecution opined that the cause of death was asphyxiation due to suffocation, strangulation, or both.  An expert hired by the defense, however, disagreed.  He testified that the cause of death was not entirely clear; that it was possible that while the neck compression may have been a contributing factor, it was also possible that Sangco had survived that trauma, dying instead from drug toxicity.  This expert believed she may not have died until some five to twenty minutes after the neck compression.  A big part of the prosecution’s case, however, was defendant’s subsequent confession as obtained by Detective Terry Rahiri, the lead detective on the case and a 22-year veteran of the Monterey Sheriff’s Office.  In a two-part interrogation (the admissibility of which became the issue in this appeal), defendant admitted that Sangco had quit breathing as he strangled her.  Convicted by a jury of first degree murder and sentenced to 25-years-to-life, defendant appealed.

The Sixth District Court of Appeal Reversed.  Pretrial, defendant filed a motion asking the trial court to suppress his confession.  During the hearing on this motion, Detective Rahiri testified that he interrogated defendant in two separate sessions, defendant fully confessing each time.  No Miranda admonishment was used during the first interrogation.  After a two-minute break, however, the interrogation was begun anew with defendant first being advised of his Miranda rights and a waiver obtained.  With periodic references to what defendant had earlier admitted, this second interrogation resulted in defendant repeating his confession. Detective Rahiri testified at the motion to suppress that although he knew that defendant was in custody—being handcuffed, wearing jail clothes, and obviously not free to leave—he didn’t feel that a Miranda admonishment was necessary during the first session because, not yet having the benefit of an autopsy report, he merely wanted to find out what defendant would say about Sangco’s death.  During this testimony by the detective, the prosecutor’s objections to the defense attorney’s questions relative to why the detective didn’t think a Miranda admonishment was necessary were consistently sustained by the trial court.  Finally, however, the trial court allowed defense counsel’s question about whether the detective knew “that by asking (defendant) questions before Miranda that you were violating his Miranda rights.” Detective Rahiri responded, “Not at that time, but later on I did.” Detective Rahiri added that he did not come to this realization until “way after the interview,” after talking with counsel and thinking about the case.  The trial court, finding the detective’s testimony to be credible, suppressed defendant’s confession obtained during the first session, but admitted into evidence his second, post-Miranda waiver confession.  The issue on appeal became whether the trial court erred in admitting the post-Miranda waiver portion of the two-part interrogation; i.e., whether the detective violated the rule as established by the U.S. Supreme Court in Missouri v. Seibert (2004) 542 U.S. 600.  The rule of Seibert precludes the admission of a confession that comes about as the product of a “two-step” interrogation tactic, during which the police deliberately question an in-custody suspect without the benefit of a Miranda admonishment and waiver, and then, after obtaining a confession, start over in a second interrogation after a Miranda waiver is obtained.  The thinking behind the Seibert rule is that an in-custody suspect will likely believe that once the “cat is out of the bag,” there is no purpose in doing anything other than confessing a second time, thus raising the issue as to whether the eventual Miranda wavier, once obtained, was in fact “knowingly and intelligently” made.  The Court noted that there are five factors to consider when determining whether a police interrogator has violated Seibert:  (1) The completeness and detail of the questions and answers in the first round of interrogation; (2) the overlapping content of the two statements; (3) the timing and setting of both the first and the second interrogation; (4) the continuity of police personnel; and (5) the degree to which the interrogator’s questions treated the second round as continuous with the first.  (Seibert, at p. 615.)  In considering these factors, the Court here held that regardless of any good faith mistake at the outset, at some point Detective Rahiri determined that he needed to give the Miranda warnings.  Thus, the question became whether the government proved (the state having the burden of proof) by a preponderance of evidence, that after coming to that realization (i.e., that an admonition and waiver was required) that Detective Rahiri didn’t deliberately withhold the requisite warnings as part of a calculated strategy to foil Miranda.  The Court held here that the Attorney General did not meet this burden, given the fact that the record lacked evidence of the detective’s subjective mental processes (the trial court having sustained the prosecution’s objections to defense counsel’s questions, the answers to which would have provided this information).  The record, however, did support an inference of deliberateness on the part of the detective.  During the post-warning interrogation the detective repeatedly referred back to defendant’s pre-warning statement, which was an implicit suggestion to defendant that the mere repetition of the earlier statement was not independently incriminating.  Also, no curative measures were taken.  For instance, there was no significant break in time (no more than two minutes) or other circumstances separating the two parts of the interview.  There were no circumstance that would permit defendant to distinguish the two contexts and that the interrogation had “taken a new turn.” No other admonishments were provided at the start of the second post-warning interrogation to effect that the first confession was irrelevant.  Lastly, defendant was not advised that the prior statements could not be used against him if he chose to remain silent or deny his crime at that point.  Additionally, the use of the two-step interrogation tactic, whether deliberate or not, did not serve any legitimate purpose.  The completeness and detail of the questions and answers pre-warning weighed in favor of exclusion, as did the overlapping content of the two statements, the similar timing and setting of the two parts, the continuity of police personnel, and the degree to which the questions treated the second round as continuous with the first.  The Court therefore concluded that the two-stage interrogation at issue in this case violated Seibert.  Further, the admission of the post-warning statement was not harmless because, with expert testimony to the effect that Sangco may have died from a drug overdose as opposed to being strangled, the balance of circumstances did not establish premeditation beyond a reasonable doubt. The matter was therefore remanded to the trial court with instructions to suppress defendant’s confession.

In so ruling, the Court found it irrelevant (or perhaps unbelievable) that a 22-year veteran of the Sheriff’s Department conducted the initial questioning in this case in true ignorance of whether Sangco had in fact died as the result of some criminal act on defendant’s part.  At the very least, the Court felt that he should have recognized earlier in the process that he did in fact have a homicide on his hands and proceeded accordingly from that point on.  Despite the Court’s doubts, I don’t think it’s illogical to believe that Detective Rahiri, when he first sat down with defendant, really didn’t know if he had a crime or not and merely wanted to find out what the defendant had to say about it. Bottom line is that I really don’t believe Detective Rahiri set out to intentionally violate the Seibert’s two-step interrogation rule.  But that having been said, there’s a good argument to be made to the effect that when confronted with circumstances such as this, where it is at least recognized that the victim’s death is suspicious, a police interrogator needs to assume the worst; i.e., that a crime has been committed and that any questioning needs to be preceded by a Miranda admonishment and waiver.  Also, once realizing that defendant did in fact murder Sangco, the detective could have avoided the problem by what the Court refers to as “curative” efforts, such as by telling defendant that his initial un-Mirandized statements were not admissible against him (obtaining his express acknowledgement of that fact), and that he needed to think about that in deciding whether to waive his Miranda rights before questioning began anew. Only in that manner are you going to obtain a knowing and intelligent waiver of a suspect’s Fifth Amendment previlege.  The apparent contrary U.S. Supreme Court authority, by the way, is Oregon v. Elstad (1985) 470 U.S. 298.  In Elstad, defendant—during his initial arrest—volunteered un-Mirandized admissions to being involved in a burglary before giving a later, full, post-Miranda-admonition, confession.  Elstad is differentiated from Seibert, however, by the lack of a purposeful intent on the part of the police to subvert Miranda.  Attorneys for both the defense and the prosecution need to be familiar with Elstad whenever confronted with a Seibert, two-step interrogation issue.  The two cases are easily differentiated.

• Robbery and the Element of the Victim’s Fear:
• CALCRIM No. 1600; Force or Fear

To constitute a robbery, it must be proved that the victim himself gave up personal property out of fear.  It is insufficient that a reasonable person, in the same or similar circumstances, would have been afraid.

Defendant Jesse Quincy Collins entered a Walgreens store in South Gate on May 2, 2019, bringing with him an empty bag.  An employee observed him “stuff(ing)” his bag with deodorant and shaving supplies.  The employee notified the store’s assistant manager, Amir Hasan.  Hasan approached defendant and, while standing some three feet from him, “quietly” and “discreetly” suggested to defendant that he needed to either pay for the items in his bag or put them back. Defendant suggested a third alternative; i.e. that Hasan just let him take the items.  He was told “no,” that was not an option.  Hearing this disappointing news, defendant attempted to push Hasan out of the way.  Hasan took a step back and told defendant; “Don’t touch me.”  Defendant proceeded to pull an already opened folding knife from his pocket, showing it to Hasan as if to say:  “This is what I got and you all ain’t going to be able to do nothing.”  Upon seeing the knife, Hasan took another step back from defendant and allowed him to exit the store with the bag full of unpurchased merchandise.  Defendant was subsequently arrested (the circumstances of which were not included in the case decision) and charged in state court with second degree robbery, plus a pile of allegations related to the use of the knife as well as his prior convictions and prison terms.  At defendant’s preliminary hearing, when asked about whether he felt threatened by defendant when defendant pulled out his knife, Hason responded with: Well, duh: “of course” he “fel[t] threatened when [defendant] pulled out the knife.”  But at trial, when asked the same question—for whatever reason feeling his oaks for the first time—Hasan repeatedly testified that he was not frightened by defendant pulling out the knife, that he “didn’t feel threatened,” and that he “had no fear.”  The jury, however, was also presented with Hasan’s prior preliminary hearing testimony to the contrary (presumably as a “prior inconsistent statement,” admissible “for the truth of the matter” pursuant to Evid. Code § 1235).  After all the evidence was presented, the trial judge read to the jury CALJIC instruction No. 1600, which defines “fear” as “fear of []injury to the [victim],” but does not specify whether the victim must himself be afraid or whether it suffices if some other objective person in the victim’s shoes would have been afraid.  Also, the prosecutor was allowed to argue to the jury (over the defendant’s objections) that the “force or fear” element of robbery was an “objective” one; i.e., whether a reasonable person under the circumstances have felt fear.  Defendant’s request for a clarifying instruction on this issues was denied.  Defendant was convicted of second degree robbery and all the allegations found to be true.  Sentenced to 15 years in prison, defendant appealed.

The Second District Court of Appeal (Div. 2), in a split (2-to-1) decision, reversed.  Robbery, pursuant to Pen. Code § 211, is defined as “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.”  (Italics added)  The use of “force” was not the theory used by the prosecution in this case, and, as noted by the Court, there is no way of knowing whether the jury relied upon the force used here in reaching a guilty verdict.  As a result, the issue was whether the People had met its burden of proving beyond a reasonable doubt that the “fear” element of a robbery had been proven.  Central to this issue is whether the “fear” element necessary to constitute a robbery was required to have been felt by the victim himself (i.e., “subjectively”), or whether it was sufficient that a reasonable person in the victim’s shoes would have felt fear under the circumstances (i.e., “objectively”).  CALJIC No. 1600, as read to the jury and as noted above, fails to answer this question.  So the prosecutor took it upon himself—supported by the trial court’s refusal to clarify the issue—to argue to the jury that an objective test is sufficient; i.e., that the taking of personal property by means of placing the victim in a situation where any reasonable person, under the circumstances, would have been afraid, constitutes a robbery.   The Appellate Court here supplied sufficient case law showing that this is incorrect.  The fear element must have been felt by the victim himself for the taking of property to be a robbery.  (See People v. Montalvo (2019) 36 Cal.App.5th 597, 612;  People v. Mullins (2018) 19 Cal.App.5th 594, 604; People v. Anderson (2007) 152 Cal.App.4th 919, 946; People v. Cuevas (2001) 89 Cal.App.4th 689, 698; People v. Davison (1995) 32 Cal.App.4th 206, 212; and  People v. Mungia (1991) 234 Cal.App.3rd 1703, 1709, fn. 2.)  The majority of the Court found that misleading the jury on this issue violated both the U.S. and the California Constitutions, and as such, to be reversible error.  However, because there was evidence supporting the argument that Hasan was in fact placed in fear by defendant’s actions, despite his protestations to the contrary, the Court ruled that on remand, the People have the option of retrying the case.

The dissent pointed out that there was substantial evidence supporting the argument that the jury was not mislead; i.e., that the victim himself, Amir Hasan, was in fact placed in fear by defendant’s actions despite his claims to the contrary, and disagreed with the majority’s decision to reverse defendant’s conviction.  But that, and a dime, won’t even get you a cup of coffee anymore.  The bottom line here is that the prosecutor in this case took a pretty bold stance on an issue that was apparently not researched prior to trial, given the cases directly on point as cited (above) by the Court.  And the judge (who perhaps should have at least asked the attorneys for case authority on this issue) let him get away with it.  For future reference, the officer taking a robbery report can help immensely by simply asking the victim whether a robber’s actions scared him (preferably out of the presence of his girlfriend or anyone else it’s important for him to appear macho in front of), and note any other evidence supporting the argument that he was in fact afraid, before the victim has the opportunity to recover from the trauma of just having been robbed.  As a Deputy District Attorney assigned to a unit where we prosecuted a lot of robberies (i.e., the San Diego DA’s Major Violator Unit), I’ve had this issue come up before where my victim refused to admit that he gave up his property out of fear.  I didn’t find it too difficult to merely point out to the jury how, despite his denials, the victim’s actions were consistent with someone being afraid.  The evidence in this case similarly showed that Amir Hasan relented to defendant’s demands out of fear—stepping back when the knife was displayed and letting him walk out of the store with the stolen property—even if he declined to admit it.  Jurors under these types of circumstances, using their common sense, will inevitably find that the victim was in fact in fear despite his claims to the contrary.  That’s what should have happened in this case.

• 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.