The Booking Questions Dilemma; An Update
Robert C. Phillips
Deputy District Attorney (Ret.)
October, 2018
The rule has long been that routine booking questions asked of an in-custody suspect for the purpose of obtaining background, biographical information, are generally permitted[1] in that such questions are not considered to be part of an interrogation.[2] Any incriminating responses made by the suspect in response to such questions are typically admissible in evidence against him.[3]
The “‘routine booking question’ exception . . . exempts from Miranda’s[4] coverage questions (needed) to secure the ‘biographical data necessary to complete booking or pretrial services.’” They typically involve questions “reasonably related to the police’s administrative concerns.” The fact that an arrestee’s responses to the booking questions turn out to be incriminating does not, by itself, affect the applicability of the exception. But by the same token, the existence of this exception does not mean that all questions asked during the booking process fall within the exception. Supposed booking questions that are really just a pretext for eliciting incriminating information are improper.[5]
Not considered to come within the definition of an interrogation, such booking questions may even be asked after an in-custody suspect has invoked his rights pursuant to Miranda. In the process, the suspect may very well change his mind and agree to reinitiate the interrogation. So long as not improperly provoked into doing so by the suspect’s interrogators, the resulting statements are likely to be admissible in evidence against him despite the earlier invocation.[6]
But there is a thin line between what is considered routine booking questions and an interrogation. Should the asking of such questions slop over into what is considered a quest for incriminating information, a suspect’s responses, at least if he has already invoked his right to silence or to the assistance of counsel, are not likely to be admissible at trial.
Booking questions are described as “words and actions that are normally attendant to arrest and custody.”[7] The problem is where to draw the line between such routine booking questions and those questions that are the “functional equivalent of an interrogation;” i.e., “any words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response from the suspect.”[8]
This issue has most recently been reviewed in the federal Ninth Circuit case of Martinez v. Cate.[9]
The facts behind the Martinez decision are relatively simple. The defendant Daniel Martinez and his co-gangster, Pablo Lopez, got into a verbal confrontation with rival gang members Jefte and Jair Garcia. The Garcia brothers were upset at some tagging activity they believed Martinez and Lopez were responsible for.
Although Jefte took his shirt off during the argument, exhibiting an intent to fight, there was no evidence that either of the Garcias might have been armed other than one comment from Jair Garcia that he might shoot one of them (i.e., “I’ll peel your guys’ cap back.”). Lopez, however, had brought a shotgun to the altercation, hiding it behind his back. Finally, on Martinez’s command (“Just do it.”), Lopez produced the shotgun and shot Jafte Garcia at close range; one pellet from which pierced Jafte’s eye and penetrated his brain, killing him.[10]
Martinez was arrested two days later and brought to the police station for interrogation. As relevant here, the attempt to interrogate Martinez proceeded as follow:
After obtaining some biographical information, the detective told Martinez that he already knew what had happened, having talked to the “guys across the street, the Sureños,” but that he wanted to “get (his) side of the story.”
Immediately upon reading defendant his rights per Miranda v. Arizona, Martinez asked; “I can have an attorney?” After attempting to clarify whether Martinez was in fact invoking his right to an attorney, Martinez made it clear and unequivocal, saying: “I would like to have an attorney.” Despite this invocation, the detective continued on, asking Martinez if he already had an attorney (yes), his attorney’s name (Percy), whether he’d spoken to Percy (no), and whether he would talk if he had his attorney present? To this last question, Martinez replied: “(Y)eah cuz I don't know much about the law.”
Then, following some irrelevant discussion about Martinez’s father, the defendant said: “Alright. I'm willing to talk to you guys uh but just I would like to have an attorney present. That’s it.”
Telling Martinez that they didn’t know if they could get ahold of his attorney right then, the detective added: “All I wanted was your side of the story. That’s it. OK. So, I'm pretty much done with you then. Um, I guess I don’t know another option but to go ahead and book you. OK. Because . . .”
An apparently surprised Martinez interrupted: “What am I being booked under?” The detective answered: “You’re going to be booked for murder because I only got one side of the story.” Martinez asked about the procedure for getting his attorney involved, only to be told that they didn’t know when his attorney might be available, and then telling him “I don’t know when you’re going to call him.”
To this, a confused Martinez responded; “I have to get ahold of him? . . . You guys don’t (unintelligible).” The detective responded: “No. No, you’re going to have to call him and it’s going to have to be from jail.”
At this point, a “frustrat(ed)” Martinez gave up, asking what the detective wanted to talk to him about. After some further discussion attempting to clarify whether Martinez still wanted his attorney present, he told the detective that he did not want to go to jail and that he would tell the truth if that “help[ed] [him] walk away.” So the detective, believing he had a valid waiver, continued on with the interrogation, eventually eliciting from him the fact that he did not feel threatened by Jefte Garcia and did not see him with a gun; statements the prosecutor later used at trial in the People’s case-in-chief, and then high-lighted during closing argument in rebuttal to a claim of self-defense.[11]
Martinez was convicted of second degree murder in state court with a gang allegation and sentenced to state prison. California’s Fifth District Court of Appeal upheld his conviction, agreeing with the trial court that Martinez himself had reinitiated the questioning and that the detective, doing no more than seeking biographical booking information, was not being deceptive nor did he mislead Martinez into making his post-invocation comments.[12] The California Supreme Court summarily denied review.[13] Successive habeas corpus writs in state and then federal court were all denied.[14] Martinez appealed to the Ninth Circuit Court of Appeal.
The Ninth Circuit Court of Appeal reversed.
Martinez’s argument on appeal, and then throughout the entire habeas corpus petition process, was that despite having clearly and unequivocally invoked his right to the assistance of counsel, he was subsequently talked out of his decision to invoke (i.e., “badgered”) by the detective; a clear violation of Miranda. The lower courts—state and federal—all held that the discussions between Martinez and the detective after his invocation were merely part of the booking process and that Martinez reinitiated the questioning of his own accord.[15]
It was agreed by the parties that Martinez had in fact invoked his right to counsel. The U.S. Supreme Court has dictated that once an in-custody suspect, when being interrogated, clearly and unequivocally invokes his right to the assistance of counsel, the interrogation must cease.[16] It is an established rule that in such a case, a defendant “is not subject to further interrogation by the authorities until counsel has been made available to him.”[17]
An exception to this rule exists when the suspect himself reinitiates the questioning, deciding of his own accord to waive his right to counsel despite an earlier invocation.[18] Such a waiver of counsel must not only be voluntary, it must also constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege. The decision to reinitiate questioning is involuntary, and invalid, if instigated by the police.[19]
A valid waiver is not established by showing that a suspect merely responded to further police-initiated custodial interrogation.[20] There is a presumption that a subsequent waiver that has come about at the authorities’ behest. It is itself the product of the inherently compelling pressures of a custodial interrogation, and not the purely voluntary choice of the arrestee.[21] Thus has developed a line of cases establishing a “prophylactic rule” designed to prevent the police from badgering a defendant into waiving his previously asserted Miranda rights.[22]
The issue here, therefore, was whether Martinez himself reinitiated the questioning, or was it the product of such badgering. More specifically, was Martinez interrogated after his invocation without a free and voluntary reinitiation of the interrogation instigated by Martinez himself.
The Ninth Circuit held here that asking Martinez whether he already had an attorney, and seeking information about his father, could reasonably be considered valid and lawful booking questions, and not improper. After that, however, when Martinez asked what he was going to be booked for, the detective told him that he was going down on a murder charge, noting specifically that it was “because I only got one side of the story.”[23]
This repeated invitation to Martinez to tell “his side of the story” was held by the Court to constitute an interrogation, unrelated to the booking process, and likely to provoke incriminating responses about the case. By linking Martinez’s failure to provide his side of the story to being booked for murder, implying that should he agree to submit to an interrogation that he might not be booked, the routine booking questions evolved into an interrogation, “badgering” him into changing his mind about having his attorney present then and there.[24]
The Court further rejected the People’s somewhat lame argument that Martinez had already reinitiated the interrogation when he asked what he was being booked for, and later, what the detective wished to talk about, in that these questions were asked while the illegal interrogation was already on-going.[25] Per the Court, to “(i)nitiate means ‘to begin’ and no reasonable jurist could review the transcript of the interaction between (the detective and Martinez) and conclude that Martinez began the exchange . . .”[26]
Finding Martinez’s decision to allow the interrogation to continue was not a free and voluntary choice, and that the People’s use of his statements at trial to be prejudicial, the Court reversed Martinez’s conviction and remanded the case for retrial.
The bottom line in the Ninth Circuit’s message to us expressed in Martinez v. Cate is that once an in-custody suspect invokes his Fifth Amendment right to the assistance of counsel, an interrogating officer must immediately cease questioning and scrupulously honor that right. The suspect may change his mind and reinitiate the questioning so long as done of his own accord. And while routine booking questions, asked for the purpose of memorializing an arrestee’s biographical information, are generally approved, such questions cannot be used as a ploy to encourage a reinitiation of an interrogation.
[1] Pennsylvania v. Muniz (1990) 496 U.S. 582, 600-602;
United States v. Washington (9th Cir. 2006) 462 F.3rd 1124;
People v. Hall (1988) 199 Cal.App.3rd 914, 920-921;
[2] People v. Powell (1986) 178 Cal.App.3rd 36, 40;
People v. Herbst (1986) 186 Cal.App.3rd 793, 798-800.
[3] Exception; People v. Elizalde et al. (2015) 61 Cal.4th 523, dealing with “gang affiliation” questions.
[4] Miranda v. Arizona (1966) 384 U.S. 436
[5] People v Gomez (2011) 192 Cal.App.4th 609, 629
[6] United States v. Zapien (9th Cir. 2017) 861 F.3rd 971
[7] Rhode Island v. Innis (1980) 466 U.S. 291
[8] Id., at p. 301
[9] (9th Cir. Sept. 11, 2018) __ F.3rd __, __ [2018 U.S. App. LEXIS 25703]
[10] Id., at p. __
Martinez v. Cate (June 19, 2014) 2014 U.S. Dist. LEXIS 84389
[11] Martinez v. Cate, supra., __ F.3rd [2018 U.S. App. LEXIS 25703], at pp. __.
[12] People v. Martinez; No. F055977
[13] 2010 Cal. LEXIS 2327
[14] See Martinez v. Cate (June 19, 2014) 2014 U.S. Dist. LEXIS 84389
[15] See People v. Martinez; No. F055977, and Martinez v. Cate, 2014 U.S. Dist. LEXIS 84389, supra.
[16] Edwards v. Arizona (1981) 451 U.S. 477
[17] Id., at pp. 484-485
[18] Ibid.
People v. Gamache (2010) 48 Cal.4th 347, 384-385;
People v. Tully (2012) 54 Cal.4th 952, 985;
People v. Gonzalez (2012) 210 Cal.App.4th 875, 882
[19] Oregon v. Bradshaw (1983) 462 U.S. 1039, 1045
[20] Edwards v. Arizona, supra, at p. 484
[21] Arizona v. Roberson (1988) 486 U.S. 675, 681
[22] Michigan v. Harvey (1990) 494 U.S. 344, 350
[23] Martinez v. Cate, supra, at p. __
[24] Ibid.
[25] Id., at p. __
[26] Id., at p. __
