Beheler Admonishments and the Non-Custodial Interrogation
Robert C. Phillips
Deputy District Attorney (Ret.)
October, 2015
Thirty-three years ago, the United States Supreme Court ruled in the landmark case decision of California v. Beheler[1] that merely because a person is questioned concerning his or her possible involvement in criminal conduct does not necessarily invoke the advisement and waiver requirements of Miranda v. Arizona.[2] Whether or not such “un-Mirandized” questioning is permissible, thus allowing for the suspect’s responses to be available to the prosecution for admission into evidence, depends upon whether the suspect was “in custody” at the time in issue, as “custody” is defined by Miranda and its progeny.[3]
Determining whether a suspect is in custody requires an evaluation of the “objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned.”[4] Rather, it depends upon “how a reasonable man (or woman) in the suspect’s shoes would have understood his (or her) situation.”[5] An individual is in custody for the purposes of Miranda if he or she is “deprived of his (or her) freedom in any significant way or is led to believe, as a reasonable person, that he (or she) is so deprived.”[6]
Based upon this legal reasoning, law enforcement has developed the practice of attempting to take the custody out of any questioning session by merely telling the suspect that he is not under arrest, or perhaps even detained, and that he is free to terminate the questioning and leave at any time should he so choose.[7] We commonly refer to such a tactic, taking the custody out of an interrogation, as a “Beheler admonishment” under principles relative to non-custodial questioning as set out in California v. Beheler. The courts generally uphold such efforts, so long as the officer makes it clear to the suspect that he’s not under arrest and is free to terminate the questioning whenever he wants. [8] The theory behind this practice is that no reasonable person would believe he’s in “Miranda custody” after having been specifically told that he’s free to stop the questioning and leave whenever he wants.
The problem is that some law enforcement officers, forever seeking “black-or-white” answers that they can easily apply to any situation, have determined on their own that once a subject is given a Beheler admonishment, that’s the end of the issue. Not so. If life were only so simple.
To the contrary, a Beheler admonishment is but one factor to consider in looking at the “totality of the circumstances” when determining whether a reasonable person would have believed, under the particular circumstances at issue, that he is or is not in custody for purposes of Miranda.[9] A Beheler admonishment alone, therefore, may not be enough. And even if it is enough, as an interrogation moves from a general, non-accusatory discussion of the events under investigation into a more confrontational, accusatory discussion of the suspect’s possible criminal involvement, what started as a non-custodial questioning may well morph, mid-interrogation, into a custodial situation requiring a Miranda advisal and waiver.
An excellent example of this phenomenon is illustrated by the recent decision of People v. Morales,[10] out of California’s Fourth District Court of Appeal.
In Morales, victim Jesus Trejo mysteriously disappeared from his apartment in Fontana, California, over the weekend of January 14-16, 2011. His roommate, Nelson Rizo, became concerned when, upon returning from a weekend job, he noticed that both Trejo and his red convertible Mustang, which he never let anyone else drive, were both missing. He also smelled a foul odor and noted that Trejo’s bedroom door was locked.
Calling around to friends, Rizo found out that Morales had been seen by several people driving Trejo’s Mustang and using his cellphone. Morales told others that he was using Trejo’s Mustang with his permission after he (Trejo) had been arrested; an assertion that was soon proven to be false. With the help of a locksmith, Trejo’s room was finally entered, finding Trejo’s decomposing and bloodied body. It was subsequently determined that Trejo had died from blunt force trauma to the head. A large, bloody stick was found nearby.
The resulting investigation led to Morales who, as a “person of interest,” was contacted at his work on Thursday, January 20. When informed that Morales had been located, San Bernardino Sheriff’s Department Detective Armando Castillo instructed at least five plainclothes officers to “stand with” him until he arrived. Detective Castillo, when he got there, asked Morales if he’d be willing to go to the police station “to talk real quick.” Morales was told that he was not under arrest, or even detained. Morales agreed to go with the detective, riding with him in the front seat, unhandcuffed, and without having been searched. They made small talk during the 20-mile drive to the station. Once at the station, Morales was offered the use of the bathroom and asked if he wanted something to eat or drink.
In an interrogation room, with Detective Castillo being assisted by Detective Jose Avila, it was reiterated several times to Morales that he was neither under arrest nor being detained and that “[i]f at any moment [he did] not want to speak with [the detectives, he could] leave.” Morales was not Mirandized.
The questioning began with the detectives seeking general information about Morales, such as his employment and his relationship to Trejo. It wasn’t until Morales asked why they were asking him about Trejo that they told him that he’d been murdered. During the ensuing interrogation, Morales repeatedly denied killing Trejo. He also initially denied driving Trejo’s car, but soon changed his story to having been given the car by someone named Jorge Rodriguez. When asked about having the victim’s cell phone, he claimed to have taken it from Trejo’s apartment after finding the door open and no one home.
Asked if he would take a polygraph exam to help eliminate him as a suspect, Morales eventually (after saying that he’d never heard of such a test) agreed to take the test. The test was administered by an examiner identified only as “Heard” in the written decision.
Heard told Morales that he was not being forced to take the test, but that it was important for him to tell “the truth, the pure truth.” During the administration of the test, Morales continued to deny having murdered Trejo. Afterwards, Heard, in effect, told Morales that he did not pass the test; that the tests “were not turning out well.” As Morales repeatedly denied killing Trejo, Heard told him a number of times that “the truth was missing.” At one point, Morales apparently started to get up because the transcript reflects that he was told to “sit down (and) listen.”
Detective Castillo eventually came into the examination room and, in response to Morales saying that he knew he was going to be going to jail, told him again that he was not under arrest or being detained. However, Morales was also told that the detective had talked to “ten different people,” that he already knew what the truth was, that he knew Morales was lying, and that “the machine does not lie.”
Morales was then taken back to the interrogation room where Detectives Castillo and Avila renewed the interrogation. With the two detectives sitting between Morales and the door, they told him that they knew he was lying because his story did not jive with what other people had told them and because they had the phone records from the victim’s cell phone which Morales had used after Trejo had been murdered. Finally, after being told; “(l)isten, the questions that I am asking you, I already know the answer to. I don’t have you here just to have you here,” Morales began to weaken. He then admitted to the detectives that he and Trejo had in fact argued over money and that when Trejo wouldn’t let Morales make something to eat, the argument “went to ‘blows.’”
Several hours later, Morales was finally read his rights pursuant to Miranda v. Arizona, which he waived. During the ensuing questioning, he admitted to striking Trejo several times with the heavy stick found in the apartment, but claimed it was in self-defense.
Four days later, Detective Castillo contacted Morales again, this time at the courthouse just before Morales’ arraignment. Without a new Miranda admonishment, telling Morales only: “(R)egarding the rights that I told you, right? And are we good, willing to talk?”, Morales was again questioned. Morales backed off of his self-defense claims telling Detective Castillo that he “got into it” with the victim after an argument during which he got angry and killed Trejo. Morales then apologized and expressed regret for the crime.[11]
Charged with murder, Morales’ motion to suppress his statements was denied by the trial court. He was thereafter convicted of second degree murder[12] with a true finding on an allegation that he personally used a deadly and dangerous weapon.[13] Morales appealed.
The Fourth District Court of Appeal (Div. 1) reversed. At issue on appeal was the admissibility of Morales’ statements made to the investigators while being questioned (1) before he was Mirandized, (2) after he was Mirandized but when still part of the initial interrogation, and (3) four days later at the courthouse.
Applying the principles discussed above, the Appellate Court determined that although the contact between Morales and the detectives was initially non-custodial, for purposes of Miranda, at some point the questioning became so aggressive, so accusatory, and so confrontational, that a reasonable person in Morales’ position would not have felt free to end the questioning and leave.[14]
In this case, Morales was asked if he’d voluntarily come to the police station “to talk real quick.” He was repeatedly told that he was not under arrest, or even detained, and that he could end the questioning and leave whenever he wanted. When transported to the station, he was neither searched nor handcuffed, while sitting in the front seat engaging in casual conversation with the detective. He was offered food, water, and a bathroom break. Up until the administration of a polygraph test, the questioning was in a non-custodial context. And even if it wasn’t, Morales did not make any admissions that were of any value to the prosecution. So any error in the use of defendant’s statements up to this point was harmless.[15]
However, upon completion of the polygraph, the examiner made no secret of the fact that he didn’t believe Morales was telling the truth. At one point, Morales was “commanded” to “sit down” and “listen.” He was told to stop lying about not being involved in the murder because “that [didn't] slide” in light of the results of the polygraph test. The Court concluded that at this point, Morales no longer felt free to leave, as evidenced by his comments immediately thereafter to Detective Castillo that he knew he was going to jail. To the Court, it appeared that Morales had “give(n) up” in his resistance to the detectives’ interrogative tactics.[16]
Despite being told again that he was not under arrest, the continuing interrogation by Detectives Castillo and Avila became very aggressive, confrontational, and accusatory. Per the Court: “We conclude the tone of the questioning post-polygraph, the positioning of the officers in the interview room, the length of the interrogation and Castillo’s admission that police already knew the answers to the questions they were asking defendant and that they did not have defendant there ‘just to have [him] [t]here,’ further support our conclusion that defendant was then in custody for purposes of Miranda.”[17] No reasonable person would have believed at this point, after the completion of the polygraph, that he was not in custody for purposes of Miranda.
The Appellate Court therefore ruled that because Morales was Mirandized until several hours later, all statements after the polygraph examination (including that he and Trejo “went to blows”), but before receiving a Miranda admonishment, should have been suppressed.[18]
After Morales was read his Miranda rights, he further incriminated himself by admitting that he hit Trejo with a “big stick,” although claiming to have done so in self-defense. In Oregon v. Elstad,[19] the United States Supreme Court held that an officer’s initial failure to administer a Miranda warning does not automatically taint the subsequent statements of the defendant, so long as they were made after he is given a proper advisement and voluntarily waives such rights. Per Elstad: “(A)bsent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion” with respect to later statements obtained after a Miranda advisement.[20]
The Court here, however, held that Morales’ initial un-Mirandized statements failed to satisfy the requirements of Elstad. In other words, they were not obtained in the absence of “deliberately coercive or improper (police interrogative) tactics,” but were rather the product of an aggressive, confrontational, and accusatory interrogation.[21] With the interrogation continuing after Morales was finally Mirandized, and after he had made at least one inculpatory admission of guilt (i.e., that he and the victim had “come to blows”) obtained through police coercion, the “cat was out of the bag,” so to speak, leaving Morales with no reason, in his mind, to invoke his right to silence. A Miranda waiver under such circumstances is not “knowing(ly) and intelligent(ly) made,” and is invalid.[22] Morales’ post-Miranda admissions, therefore, were also involuntary and should have been suppressed.
Lastly, the Court also ruled that Morales’ admissions made to Detective Castillo at the courthouse four days later should also have been suppressed. With his earlier waiver having been held to be invalid, whether or not the subsequent interrogation was “reasonably contemporaneous” with a prior waiver, and whether he still had his rights in mind (the test for the admissibility of subsequent admissions) four days later, was held to be irrelevant. There having been no prior waiver upon which to base the admissibility of subsequent statements, whether or not the “reasonably contemporaneous” rules applied to this case was not necessary to decide. Without a valid prior waiver, defendant’s later incriminatory statements were inadmissible.[23]
Finding the admission into evidence of Morales’ inculpatory statements to be prejudicial under the circumstances of this case, his conviction was reversed and remanded for a new trial.[24]
The moral to this story is that law enforcement interrogators must be made aware that while a Beheler admonishment is often an effective and lawful interrogative technique for side-stepping the Miranda requirements by taking the custody out of an interrogation, officers must also remain vigilant to when their interrogations cross that vague line into what a court will later consider to be custodial. In this case, it was noted that Detective Avila apparently felt the interrogation crossing that line, reaching for an admonition card on several occasions, but never taking the initiative by interrupting Detective Castillo’s flow so that he could use it.[25] Too bad. Had he done so, we would likely be talking about a whole different result.
[1] (1983) 463 U.S. 1121
[2] (1966) 384 U.S. 436
[3] People v. Kopatz (2015) 61 Cal.4th 62, 80
[4] Stansbury v. California (1994) 511 U.S. 318, 323
[5] Berkemer v. McCarty (1984) 468 U.S. 420, 442
[6] People v. Taylor (1986) 178 Cal.App.3rd 217, 225
[7] E.g., see United States v. Norris (9th Cir. 2005) 428 F.3rd 907, 912-913
[8] See People v. Storm (2002) 28 Cal.4th 1007, 1036-1038
[9] E.g., see People v. Pilster (2006) 138 Cal.App.4th 1395; 1403-1404
[10] (July 14, 2015) 238 Cal.App.4th 814
[11] People v. Morales, supra, at pp. 819-821
[12] P.C. § 187(a)
[13] P.C. § 12022(b)(1)
[14] People v. Morales, supra, at pp. 834-842
[15] Id, at pp. 834-837
[16] Id, at pp. 837-839
[17] Id, at p. 840
[18] Id, at pp. 840-841
[19] (1985) 470 U.S. 298
[20] Oregon v. Elstad, at p. 314
[21] People v. Morales, supra, at p. 842
[22] Ibid.
[23] Id, at pp. 842-843
[24] Id, at pp. 843-844
[25] See Id. at pp 830 & 840
