Misinterpreting the Value of the Beheler Admonishment

Robert C. Phillips
DDA (Ret)
August, 2018

            Since first imposed on law enforcement, when in 1966 the United States Supreme Court first announced the rule of Miranda,[1] police interrogators have been looking for a convenient yet legal way to avoid the requirement that in-custody suspects must be told that they have the right to remain silent and the right to an attorney before and during questioning.  Think about it:  How ridiculous is it that a police officer seeking to solve a crime, must, in effect, shoot himself in the foot by trying to talk a suspect out of confessing when all the officer really wants is for him to confess? 

            Well, never underestimate the genius of a police officer.  Somewhere along the line, someone thought up the brilliant tactic of taking the custody out of an interrogation—thus eliminating the need for a Miranda advisal—by simply telling the suspect being questioned that he is not under arrest and is free to leave at any time he might so choose.  This works because it has been ruled any number of times that for the Miranda rule to apply, the suspect must be “in custody.”[2]

            “Custody,” for purposes of Miranda, occurs when a person has been “deprived of his (or her) freedom in any significant way.”[3]  Whether or not a person is in custody depends upon “how a reasonable man (or woman) in the suspect’s shoes would have understood his (or her) situation.”[4] 

The theory is that no reasonable person would believe he is in custody when he is told, in effect, that he is not; i.e., that he is free to cut off the questioning and leave anytime he wishes.  It seems they never do take the officer up on his offer, by the way.  Typically, a criminal suspect prefers to stick around and cooperate; perhaps to make himself look innocent.

But in any case, California peace officers are taught to take advantage of this human failing and simply tell a suspect he is not in custody, eliminating the need to read him his Miranda rights.[5]  Often referred to as a “Beheler admonishment,” named after the U.S. Supreme Court decision of California v. Beheler,[6] it has been held many times that such an interrogation tactic actually works; eliminating the custody prerequisite to a Miranda admonition.[7]

If this seems to you to be too easy, you are right.  We should have suspected that the courts are not going to allow police officers to sidestep the Miranda admonishment requirements so easily.  Often lost in the plethora of cases approving the use of a Beheler admonishment is the simple fact that whether or not a suspect is in custody for purposes of Miranda is dependent upon the “totality of the circumstances.”  A Beheler admonishment is but one of those factors to be considered, and is not necessarily controlling.[8]

Other factors that must be considered include, but are not necessarily limited to, the following circumstances:

• Whether the suspect has been formally arrested;
• Absent a formal arrest, the length of the detention;
• Whether contact with law enforcement was initiated by the police or the person interrogated;
• Whether the suspect is searched, frisked, or patted down; 
• The location of the interview;
• The ratio of officers to suspects;
• How many police officers participated;
• The demeanor of the officer, including the nature of the questioning;
• Whether the suspect agreed to the interview and was informed he or she could terminate the questioning;
• Whether the person’s conduct indicated an awareness of such freedom;
• Whether the police informed the person he or she was considered a witness or a suspect;
• Whether they manifested a belief that the person was culpable and they had evidence to prove it;
• Whether there were restrictions on the suspect’s freedom of movement during the interview;
• Whether the police officers dominated and controlled the interrogation or were aggressive, confrontational, and/or accusatory;
• Whether the police used interrogation techniques;
• Whether they pressured the suspect; and
• Whether the suspect was arrested at the conclusion of the interview.[9] 

The latest case illustrating this rule is People v. Torres,[10] out of the Fourth District Court of Appeal (San Diego).  Antonio Torres was a 73-year old Mexican immigrant with no formal education who was suspected of molesting the five-year old daughter of the family from whom he was renting a room.  Contacted by investigators at his residence, but taken out to an unmarked police car to be questioned, Torres was told that he was not under arrest, was free to leave, and was not required to speak to the detectives; i.e., the standard Beheler admonishment.  With Torres being asked if he would consent to speaking with the officers, where the officers were in plain clothes and without their firearms visible, and with the questioning being low key and polite, the Court had no reason to find that he was in custody, at least up to that point.[11]

However, the conversation rapidly degraded into an accusatory interrogation where in the next 45 minutes, the detectives laid out for Torres all the evidence (some true, some not) they had showing that on at least two occasions, he had inappropriately touched the victim’s private areas.[12]

Right off the bat, Torres was confronted with the claim that a mouth swap he had just consented to provide would prove through DNA testing that he had in fact been in sexual contact with the victim.  The detectives also engaged in an interrogation tactic sometimes called “minimization;” i.e., telling Torres that what he had done to the victim was relatively unimportant, and not much more than a “mistake.”  The detectives encouraged Torres to muster up the courage to admit his mistake.  Torres was also told that although they knew he did not want to admit to what had happened, they already knew what happened and would soon be able to prove it scientifically.[13] 

Throughout the majority of this interrogation, Torres vehemently denied the accusation.  However, faced with what must have appeared to him to be a hopeless sitation, he eventually began to weaken, attempting to explain away what the detectives described as the inevitable determination that his DNA would be matched to what was found in the victim’s vaginal area.  Little by little, Torres made more and more admissions, finally admitting to several instances of inappropriate “skin to skin” touching of the victim. 

 Charged in state court with two counts of committing a lewd act with a minor under 14 years old,[14] with allegations that he had substantial sexual conduct with the minor,[15] Torres’s incriminating statements were admitted into evidence against him without objection.  Tried and convicted, Torres was sentenced to 8 years in prison, and appealed.[16]

On appeal, Torres argued that his confession should not have been admitted into evidence against him because of the lack of a Miranda advisal and waiver, and that he had received ineffective assistance from his trial attorney for having failed to challenge the admissibility of his confession.  The Court of Appeal agreed. 

As already noted, Miranda v. Arizona requires that a person questioned by police after being “taken into custody or otherwise deprived of his freedom of action in any significant way . . . [must first] be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.”[17]  Torres never received this advisal.  The People’s argument was that Torres was not in custody at the time he was questioned, and thus no advisal of rights was necessary.[18] 

The Court first determined that Torres was in fact “interrogated,” and not just interviewed.[19]  It is an interrogation when the words or actions on the part of the police (other than those normally attendant to arrest and custody) are such that the police should have known are reasonably likely to elicit an incriminating response from the suspect.[20]  The detectives here were certainly attempting to elicit incriminating responses from Torres. 

So the only issue on appeal was whether the interrogation occurred when Torres was in custody.  Some of the factors present during the interrogation that tend to indicate a lack of custody include the fact that Torres was first contacted in his home rather than at a police station.  Torres voluntarily agreed to be interviewed.  Both detectives wore plain clothes and their weapons were not visible. The interview was short; only 45 minutes.  The interview itself did not involve any threats or raised voices.  Torres was in fact released after the interview, as promised.  Most importantly, the detectives told Torres that he was not under arrest and was free to leave, and was not required to speak to them; i.e., a “Beheler admonishment.”[21]

The Court noted, however, that a Beheler admonishment is but one factor to consider in determining whether a suspect is in custody.  A Beheler admonishment alone is not to be considered a “bright line rule,” as is believed by many police interrogators, to the effect that a suspect who is told that he is not under arrest inevitably and necessarily results in a non-custodial questioning.  Per the Court, a “Beheler (admonishment) does not stand for the proposition that simple advisements, standing alone, insulate an interrogation from Miranda’s reach.”[22] 

Other factors must also be considered.  For instance, in this case, despite being contacted at his home, Torres was isolated in an unmarked police car—a location controlled by the detectives—with the doors shut.  The Miranda decision itself recognized such isolation as “the ‘principal psychological factor contributing to a successful interrogation.’”[23]   Even more importantly in this case, despite starting out very low key and non-accusatory, the questioning quickly became more pointed—or “accusatorial,”—with the detectives dominating and controlling the course of the interrogation.[24] 

Also, various interrogation techniques were used, including minimizing the seriousness of Torres’ offenses while confronting him with false evidence and accusatory leading questions.  As noted by the Court, “(t)he detectives used a classic two-sided interrogation process relying ‘on negative incentives (i.e., tactics that suggest the suspect should confess because no other course of action is plausible, such as confronting suspects with real or invented evidence, identifying contradictions in the suspect’s account, and refusing to credit his denials or alibi) and positive incentives (i.e., tactics that suggest the suspect will in some way feel better or benefit if he confesses, such as appealing to the suspect's self-interest or minimizing the seriousness of the offense).”[25] 

Torres was also falsely told that the victim had passed a polygraph test, to the effect that Torres had in fact molested her.  More importantly, Torres was pressured into incriminating himself by telling him that DNA testing was ongoing as they spoke, the results of which would positively prove the victim’s allegations of child molest.[26]  

In general, the detectives expressed their belief that Torres was culpable, rejecting his initial denials, and that they had evidence to prove it.  Such an interrogative style, all geared towards overcoming Torres’ will to resist, weigh in favor of a determination that he was in fact in custody.  Per the Court, no reasonable person, under such high-pressure, accusatory circumstances, would have felt free to end the questioning and leave despite the earlier admonition that that was his right.  Under these circumstances, Torres should have been advised of his rights pursuant to Miranda and a waiver obtained before being questioned.  His attorney should have raised these issues at trial, and was constitutionally ineffective for having failed to do so.  Finding the lack of a Miranda advisal and waiver to be prejudicial, the Court reversed Torres’ conviction and returned the matter to the trial court for further proceedings.[27]

So does this mark the demise of the Beheler admonishment rule; i.e., eliminating the tactic of taking custody out of an interrogation by telling a suspect he is not under arrest and is free to end the questioning and leave anytime he wants?  The simple answer to this question is “of course not.”  But this case does put Beheler into context. 

As specifically noted by this court, Beheler does not provide us with a “bright line rule” that ends the need for a Miranda admonishment and waiver in all cases.[28]  All the other factors surrounding an interrogation must also be considered, recognizing that accusatory, high-pressure questioning can easily move what could have been a non-custodial questioning into an in-custody interrogation, negating the effects of a Beheler admonishment.[29]  Every case must deal with this issue on its own merits.   

[1]             Miranda v. Arizona (1966) 384 U.S. 436

[2]             People v. Pilster (2006) 138 Cal.App.4th 1395;

Dyer v. Hornbeck (9th Cir. 2013) 706 F.3rd 1134, 1137-1145;

People v. Zaragoza (2016) 1 Cal.5th 21, 56-57

[3]             Miranda v. Arizona, supra, at p. 444;

People v. Arnold (1967) 66 Cal.2nd 438, 448;

People v. Kopatz (2015) 61 Cal.4th 62, 80;

People v. Elizalde et al. (2015) 61 Cal.4th 523, 531

[4]             Berkemer v. McCarty (1984) 468 U.S. 420, 442;

People v. Boyer (1989) 48 Cal.3rd 247, 272;

In re Kenneth S. (2005) 133 Cal.App.4th 54;

People v. Bejasa (2012) 205 Cal.App.4th 26, 35;

People v. Kopatz (2015) 61 Cal.4th 62, 80;

In re I.F. (2018) 20 Cal.App.5th 735, 759.

[5]             Smith v. Clark (9th Cir. 2015) 804 F.3d 983, 986

[6]             (1983) 463 U.S. 1121

[7]             Green v. Superior Court (1985) 40 Cal.3rd 126, 131-135;

              People v. Chutan (1999) 72 Cal.App.4th 1276;

              Baines v. Cambra (9th Cir. 2000) 204 F.3rd 964;

              People v. Storm (2002) 28 Cal.4th 1007, 1036-1038;

              United States v. Crawford (9th Cir. 2004) 372 F.3rd 1048;

              People v. Holloway (2004) 33 Cal.4th 96, 118-121;

              United States v. Norris (9th Cir. 2005) 428 F.3rd 907, 912-913;

              In re Kenneth S. (2005) 133 Cal.App.4th 54;

              People v. Leonard (2007) 40 Cal.4th 1370, 1399-1401;

              United States v. Bassignani (9th Cir. 2009) 575 F.3rd 879, 883-887;

              Stanley v. Schriro (9th Cir. 2010) 598 F.3rd 612, 618-619;

              Dyer v. Hornbeck (9th Cir. 2013) 706 F.3rd 1134, 1137-1145

[8]             People v. Pilster (2006) 138 Cal.App.4th 1395; 1403-1404

[9]             People v. Pilster, supra;

People v. Zamudio (2008) 43 Cal.4th 327, 340-346;  

United States v. Brobst (9th Cir. 2009) 558 F.3rd 982, 995-997;

Stanley v. Schriro (9th Cir. 2010) 598 F.3rd 612, 618-619;

United States v. Basher (9th Cir. 2011) 629 F.3rd 1161, 1166-1167;

People v. Bejasa (2012) 205 Cal.App.4th 26, 35-36;

People v. Aguilera (1996) 51 Cal.App.4th 1151, 1162;

People v. Stansbury (1995) 9 Cal.4th 824, 831-835;

United States v. Galindo-Gallegos (9th Cir. 2001) 244 F.3rd 728;

People v. Herdan (1974) 42 Cal.App.3rd 300, 306-307;

People v. Salinas (1982) 131 Cal.App.3rd 925, 935;

People v. Morris (1991) 53 Cal.3rd 152, 197-198;

People v. Lopez (1985) 163 Cal.App.3rd 602, 608;

People v. Spears (1991) 228 Cal.App.3rd 1, 25-26;

People v. Forster (1994) 29 Cal.App.4th 1746, 1753-1754;

In re B.M. (2017) 10 Cal.App.5th 1292, 1297;

People v. Saldana (2018) 19 Cal.App.5th 432, 454-463;

In re I.F. (2018) 20 Cal.App.5th 735, 759.

[10]            (July 12, 2018) 25 Cal.App.5th 162.

[11]            Id., at p. 167.

[12]            Id., at pp. 168-170.

[13]            Ibid.

[14]            P.C. § 288(a)

[15]            P.C. § 1203.066(a)(8)

[16]            People v. Torres, supra, at pp. 165-166

[17]            Miranda v. Arizona, supra, at p. 444.

[18]            People v. Torres, supra, at p. 170.

[19]            Id., at p. 173.

[20]            Kemp v. Ryan (9th Cir. 2011) 638 F.3rd 1245, 1255;

People v. Elizalde et al. (2015) 61 Cal.4th 523, 531.

[21]            People v. Torres, supra, at pp. 173-174.

[22]            Id., at p. 175.

[23]            Miranda v. Arizona, supra, at p. 449

[24]            People v. Torres, supra, at pp. 176-177.

[25]            Id., at p. 178.

[26]            Id., at pp. 170, 177.

[27]            Id., at p. 180.

[28]            Id., at p. 174.

[29]            See also United States v. Lee (9th Cir. 1982) 699 F.2nd 466, 467-468;

              United States v. Craighead (9th Cir. 2008) 539 F.3rd 1073, 1088;

              Moore v Czerniak (9th Cir. 2009) 574 F.3rd 1092, 1103, fn. 11;

              People v. Aguilera (1996) 51 Cal.App.4th 1151;

              People v. Saldana (2018) 19 Cal.App.5th 432, 456-458;

              In re I.F. (2018) 20 Cal.App.5th 735, 773-775