"FROM THE CLASSROOM"
By Ray Hill, Professor Emeritus, Santa Rosa Junior College

“Its ‘402’ time, officer” - “Who Wins, You or Defense counsel”? Note: 402(b) E.C. – A pre-trial court hearing to determine the admissibility of an admission or confession.

Miranda Update #6 -Voluntary Interviews in the Jail

This is the sixth in a series of mini-articles covering basic Miranda and Confession Law. This review is equally applicable to detectives and those generalists who are assigned to investigate their own cases.

“A different approach to custody determination is warranted in the paradigmatic custodial setting whereby definition the entire population is under restraint of free movement” (Peo. v. Macklem (2007) 149 Cal. App. 4th 874).

The fact a person is incarcerated in jail or prison doesn’t necessarily constitute custody for Miranda purposes (Peo. v. Krebs, Cal., 2019).

So you have a “hot” or “cold” case and want to talk to an in-custody “person of interest”. He has counsel appointed in a charged offense. No big deal, your case is a separate and uncharged crime(s). If the person asserted his Miranda right to silence to a first law enforcement agency, go according to your convenience (See Article #1 in this series - “Reinitiating Questioning After a Miranda Silence Assertion”. If he “counseled” up to a first law enforcement agency, then it is recommended that you consider waiting 14-days under the Shatzer Rule (See Article #2 in this series – “Reinitiating Questioning After a Miranda Counsel Assertion).

As to questioning on a separate and uncharged crime after a Miranda counsel assertion and remaining in custody, California case law is not entirely clear in this area (“Whether or not Shatzer’s 14-day rule applies to pre-conviction situations remains an open issue” - Robert Phillip’s “Miranda and Confession Law – The Fifth Amendment”, April 2022, Page 258). Down the line it is better to be safe than be sorry.

So you’re at the jail and have the “person of interest” brought from his cell to an interview room. Do you have to Mirandized the suspect prior to interview?

Not necessarily.  Examples:

   Defendant was in-custody in the San Diego County Jail after being charged with the murder of his 17-year-old girlfriend. He attacked a sleeping inmate with a piece of PVC pipe torn from a shower chair. Four days later, the defendant was contacted in his cell and agreed to talk to an investigator about the assault. He was brought in handcuffs to an interview room. The handcuffs were removed and the interview door was left slightly open. He was told that he did not have to speak to the investigator and could return to his cell at any time. Defendant made incriminating statements about the jail attack, including a volunteered statement about the charged murder case. No Miranda warning was given. Though the defendant was questioned in a custodial setting, he was not in-custody for Miranda purposes. There was no order or demand to respond for the  interview, the interview took place in a location “as close to neutral territory as is available in the detention facility”, and the defendant was told he didn’t have to talk and was free to leave. He showed no hesitancy about talking (“It was fine”) and seemed “quite happy to meet the detective and smiled”. The interview was conducted in a conversational manner. Defendant was exposed to no additional restraint “beyond the everyday conditions of confinement” (Peo. v. Macklem (2007) 149 Cal. App. 4th 874).

Defendant was serving time in CSP-Sacramento for possessing heroin. An investigator contacted him about tar heroin found in his cell. Defendant was told he could reject this interviewer and have another officer assigned to his case. A 25-30-minute conversation took place through the “food port” with the investigator standing outside the cell door and asking questions. No Miranda admonition was given. Defendant stated, “I admit I had possession of the drug, but I was not trafficking it”. No restraint was placed on defendant above that normally associated with his custodial status, He was free to walk away from the cell door and not speak to the investigator (Peo. v. Fradiue (2000) 80 Cal. App. 4th 15).

Defendant was serving a sentence in a Michigan state prison. He was under a separate investigation for prior events involving unlawful sexual conduct with a 12-year-old boy. Investigators arranged for an interview in a prison conference room. Defendant was brought to the room, he was not handcuffed, and he was told prior to interview that “he could stop talking to us at anytime” and that “he was free to leave and return to his cell”. No Miranda admonition was given. During the course of the interview, defendant was again reminded that he could return to his cell. He confessed to the new crime. No Miranda admonition was necessary. “The ordinary restrictions of prison life, while no doubt unpleasant, are expected and familiar, and thus do not involve inherently compelling pressures”. “An inmate knows, regardless of what is said, that after questioning he or she will not be leaving the institution”. Defendant was told he could leave and return to his cell and reminded a second time. He “was not physically restrained or threatened”, he was interviewed in a neutral setting in the institution, he “was offered food and water”, and “the door to the conference room was left open.” (Howes v. Fields (2012) 565 US 499).

Also take a look at Robert Phillip’s “Miranda and Confession Law – The Fifth Amendment”, April 2022, Pages 110-112, 114-117, 208-217 and 247).

Now having reported that case law supports voluntary interviews in a jail or prison setting - a caveat. Several past students have given me feedback that your Deputy District Attorney, and maybe even Superior Court judges, may not be as familiar with this case law as you are. So, document the “totality of circumstances of the jail interview in your police report in the same way that you would document the “totality of circumstances” of voluntary interview conducted at the police station. That way the DDA is “locked and loaded” for an argument or brief at a “402 Motion”. Though the inmate may not be in the same type of custodial circumstances as with an arrest, you definitely want to keep away from any actions or language that would communicate to the inmate that he/she is not free to stop talking or leave the jail interview room. Example:

“The court also credited the officer’s testimony that defendant was not in custody for the killings when he confessed” (People v. Krebs (2019) 8 Cal.5th 265).

Stay Safe!

RH