Booking Questions & Miranda
Robert C. Phillips
Deputy District Attorney (Ret.)
October, 2021
Some four years ago, the Fourth District Court of Appeal (Div. 2) seemingly resolved an often-debated issue when it published an opinion on the trial admissibility of a jail inmate’s responses to so-called “booking questions.” In People v Gomez,[1] it was held that despite the lack of a prior Miranda[2] admonishment and waiver, an inmate’s admissions relative to his criminal street gang affiliation, made in response to routine booking questions posed to the inmate for purposes of jail security and the inmate’s own safety, were admissible against him at his later trial.[3]
Recognizing that the rule is not absolute, and seeking to weed out instances where the booking question exception to Miranda might be used as a ploy for tricking a defendant into incriminating himself, the Gomez court provided a list of factors, gleaned from a host of prior case decisions, to consider in determining when such un-Mirandized responses might be admissible. Those factors were listed as:
(1) The nature of the questions, such as whether they seek merely identifying data necessary for booking;
(2) The context of the interrogation, such as whether the questions were asked during a non-investigative, clerical booking process and pursuant to a standard booking form or questionnaire;
(3) The knowledge and intent of the government agent asking the questions;
(4) The relationship between the question asked and the crime the defendant was suspected of committing;
(5) The administrative need for the information sought; and
(6) Any other indications that the questions were designed, at least in part, to elicit incriminating evidence and merely asked under the guise or pretext of seeking routine biological information.[4]
In Gomez, for instance, in upholding the admissibility of the defendant’s statements relative to his gang affiliations, it was noted that the intake deputy’s questions posed to the defendant relative to his gang affiliation were routine, asked of every in-coming prisoner, and done for the purpose of protecting the safety of the inmate himself as well as the custodial staff. The deputy further testified that he had nothing to do with the investigation of the defendant’s alleged criminal acts.[5]
But the California Supreme Court has different thoughts on this issue, in effect over-ruling Gomez at least as the issue relates to booking questions concerning an inmate’s street gang affiliation. In People v. Elizalde et al.,[6] the Court ruled that Gomez’s six-factor “totality of the circumstances” approach to determining the applicability of the booking question exception to the Miranda rule when a defendant’s gang affiliation is the issue, is misplaced. The sole issue, per the Supreme Court, is whether or not such questions are of the type that an officer should know are reasonably likely to elicit an incriminating response.[7]
The facts of Elizalde are remarkably similar to Gomez. In the former, co-defendants Jose Mota-Avendano and Gamaliel Elizalde were convicted in state court of three counts of first degree murder, along with other related charges and enhancements. Co-defendant Javier Gomez was also convicted of one count of first degree murder plus enhancements. Their respective convictions, based largely on conspiracy and aiding and abetting theories, stemmed from confrontations between the defendants’ gang, the Varrio Frontero Loco (VFL), a subgroup of the Sureno criminal street gang, and the Norteno street gang, both active in Contra Costa County.
Co-defendant Elizalde took over the VFL’s leadership in 2007 when its prior leader went into hiding after committing another murder. Under Elizalde, however, the gang began to deteriorate. So to reestablish its power, Elizalde, ordered VFL members to “put in more work” by assaulting Nortenos, letting them “know we around, we ain't gone.” Mota was among those put in charge of the gang’s efforts.
Based upon directives from Elizalde and Mota, gang members made incursions into Norteno territory, looking for and confronting Norteno gang members. Between December 22, 2007, and April 25, 2008, three Norteno gang members were killed in three separate shooting incidents instigated by Elizalde and Moto, and in one case, by Gomez personally. All three defendants were eventually arrested and booked into the Contra Costa County jail.
Upon booking, a review and interview of each new inmate is routinely conducted by jail personnel concerning an inmate’s pending charges, gang affiliation, and need for protective custody. The purpose of this procedure is to maximize the safety of all inmates and jail employees by segregating rival gang members from each other.
Upon Mota’s booking (co-defendant Mota being the sole issue on this appeal), Contra Costa Deputy Sheriff Bryan Zaiser, using a standard questionnaire, and without a Miranda admonishment, asked him about his gang affiliation. Mota told Deputy Zaiser that he was “affiliated with the Sureno street gang,” specifically VFL, and that he was an active gang member. Deputy Zaiser, who knew only that Mota had been charged with murder but was unaware of any of the details or whether it was gang-related, later testified that his sole purpose in asking this question was to ensure the safety of jail inmates and personnel and not to investigate the charges. Mota’s admissions concerning his gang affiliation were admitted into evidence against him at trial over his objection, the trial court ruling that as a part of a “booking interview,” Miranda was inapplicable.[8]
Upon Mota’s conviction (and 100-years-to-life prison sentence), the First District Court of Appeal (Div. 2) affirmed the conviction, but ruled that the trial court erred when it admitted into evidence Mota’s statements about his gang affiliation, although the error was harmless under the circumstances.[9] Mota appealed. The California Supreme Court unanimously affirmed both Fourth District’s ruling that Mota’s gang affiliation admissions were inadmissible, and that the error was harmless, ultimately upholding the conviction.[10]
In the Supreme Court’s decision, after citing some basic Miranda rules (e.g.: “(T)he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.”[11]), the Court went on to note the long-standing exception for “booking questions.” To trigger the protections under Miranda v. Arizona, an in-custody suspect must be subjected to an interrogation. An “interrogation” is defined as “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.”[12]
An exception is provided for an inquiry that involves questions “normally attendant to arrest and custody,” more often referred to as “booking questions.” It is only when the questioning results in the in-custody suspect providing “testimonial evidence” that Miranda is implicated. “Biographical data,” provided upon a suspect’s booking and necessary to complete booking or pretrial services, is not generally considered to be testimonial.[13]
In the instant case, the issue was whether a prisoner’s assertion of gang affiliation upon booking is testimonial or merely biographical data. In discussing this issue, the California Supreme Court discussed the split of authority on this issue, going into great detail about the Gomez decision. But the Court here declined to follow Gomez, noting that merely because booking questions may have an administrative purpose does not automatically make the responses admissible against the defendant at trial.
Nor is it dispositive that the booking deputy asked the questions for a non-investigatory purpose, or that it was not done as a pretext for eliciting incriminating information. In fact, the Court noted that the intake deputy’s subjective state of mind is irrelevant. The only question is, at least when asking about one’s gang affiliation: Were the questions asked of such a nature that an officer should have known that they were reasonably likely to have elicited an incriminating response?[14]
Given California’s enhanced punishments for gang-related criminal offenses,[15] as well as making intentional gang-related murders a special circumstance authorizing penalties of death or life without the possibility of parole,[16] Mota’s admission to being an active member of a criminal street gang had significant penal consequences for him. As such, questions about his gang affiliation are something that an officer should have known are reasonably likely to elicit an incriminating response. Therefore, for his responses to be admissible in evidence against him, the Court held that the questioning on this issue should have been preceded by a Miranda admonishment and wavier. However, the Court found that in light of other properly admitted evidence of Mota’s gang affiliation, use of his jail responses to these questions was harmless beyond a reasonable doubt. His conviction, therefore, was affirmed.[17]
Almost in passing, the Court further rejected the argument that the so-called “public safety exception,” where un-Mirandized incriminatory statements are solicited when necessary for the public’s safety (e.g., location of a missing firearm),[18] did not apply despite the People’s argument that information about an inmate’s gang affiliation is necessary to avoid gang violence in the jail, protecting both the inmate and jail officers.[19] While this argument makes a certain amount of sense, the Court was not willing to extend the public safety exception to cover booking questions.
Lastly, the Supreme Court limited its decision in two respects. First, it held that rulings in this case are limited to booking questions related to gang affiliation only. “We need not, and do not articulate that scope (of the booking questions exception) in all particulars. Here, we only determine that questions about gang affiliation exceed it.”[20]
That having been said, we are left wondering whether in other respects we are to use Gomez’s six-factor totality of the circumstances test in evaluating the admissibility of other incriminating statements made by inmates during their booking interviews. Or, is the test to be in other circumstances whether an officer would know that any particular question is reasonably likely to elicit an incriminating response? A strong argument can be made that the Gomez factors are no longer valid and there’s absolutely no reason why the “reasonably likely to elicit an incriminating response” rule shouldn’t apply to all booking questions.
Secondly, the Court also noted that there is nothing wrong with a jail intake deputy asking about an inmate’s gang affiliation during the booking process. No error occurred here until the prosecution sought to use Mota’s responses to these questions at trial and the trial court allowed it.[21] So jail deputies remain free to ask the questions they deem necessary to insure security in the jail and the safety of all who have to be there, either as inmates or employees. The only question is whether the responses will be
[1] (2011) 192 Cal.App.4th 609
[2] Miranda v. Arizona (1966) 384 U.S. 436
[3] People v. Gomez, supra, at pp. 625-635
[4] Id., at pp. 630-632;
See also People v. Williams (2013) 56 Cal.4th 165, 187-188
[5] People v. Gomez, supra, at p. 627
[6] (June 25, 2105) 61 Cal.4th 523, 533-540
[7] Id., a p. __
[8] Id., at pp. __-__
[9] People v. Elizalde et al. (2013) 222 Cal.App.4th 351; review granted
[10] People v. Elizalde et al. (2105), supra, __ Cal.4th at p. __
[11] Miranda v. Arizona, supra, at p. 444
[12] People v. Elizalde et al. (2015), supra, __ Cal.4th at p. __; citing Rhode Island v. Innis (1980) 446 U.S. 291, 301
[13] People v. Elizalde et al. (2015), supra, __ Cal.4th at p. __; citing Pennsylvania v. Muniz (1990) 496 U.S. 582, 585-597
[14] People v. Elizalde et al. (2015), supra, __ Cal.4th at p. __; citing Rhode Island v. Innis, supra, at pp. 301-302
[15] See The California Street Terrorism Enforcement and Prevention Act; P.C. §§ 186.20 et seq., and P.C. § 12022.53(e)(1)
[16] P.C. § 190.2(a)(22)
[17] People v. Elizalde et al. (2015), supra, __ Cal.4th at p. __
[18] See New York v. Quarles (1984) 467 U.S. 639
[19] People v. Elizalde et al. (2015), supra, __ Cal.4th at p. __
[20] Id., at p. __
[21] Id., at p. __
