The Out-of-Custody Suspect’s Miranda Invocation: Going Out on a Limb
By Robert C. Phillips
DDA (Ret.)
January, 2015
It is now generally accepted that a so-called “anticipatory invocation” is legally ineffective. What this means is that if a criminal suspect who is being questioned in a non-custodial setting attempts to invoke his rights under Miranda,[1] or, in a slightly different scenario, whenever an in-custody suspect attempts to invoke his rights prior to any interrogation taking place, neither invocation is any good.
Whichever of the two types of anticipatory invocations occurs, the legal concept itself stems from the same source. The United States Supreme Court, in nothing more than a footnote in McNeil v. Wisconsin,[2] clearly states; “We have in fact never held that a person can invoke his Miranda rights anticipatorily, in a context other than ‘custodial interrogation’ . . . . Most rights must be asserted when the government seeks to take the action they protect against.”[3] (Italics added.)
It is evident from this that before Miranda applies, the suspect must be both (1) in custody and (2) an interrogation, if not in progress, must at least be imminent.[4] If either one of these two preconditions is not met, then any attempt by a criminal suspect to invoke his or her right to the assistance of counsel or to remain silent pursuant to Miranda is legally ineffective.
From this footnoted language in McNeil, and any number of other later cases to the same effect, some law enforcement officers have unilaterally decided that this rule provides them a great new interrogative tactic. Specifically, when questioning any out-of-custody suspect, an attempt by the suspect to invoke his Miranda rights may simply be ignored and the questioning continued. Without “custody,” the reasoning goes, an officer may ignore the suspect’s expressed desire to remain silent, or to discuss the issue only with the help of an attorney, and continue on with the questioning.
Well, I beg to differ. In fact, I’m going to go out on a limb and tell you that continuing an interrogation in the face of the out-of-custody suspect’s attempt to invoke his rights pursuant to Miranda is contrary to the stated dictates of the Supreme Court and will result in the suppression of any resulting statements.
My authority for such a bold statement? I have none; at least not directly on point. That’s why I’m telling you this from the precarious outer tip of the proverbial limb. But my conclusion on this issue is supported by a careful reading of the many cases discussing anticipatory invocations and related constitutional Fifth Amendment theories.
First, the law on anticipatory invocations, holding that Miranda cannot be legally or effectively invoked when there is no custody, is clearly established.[5] Therefore, it cannot be a Miranda violation to ignore an out-of-custody suspect’s attempt to invoke. So then what’s the problem?
The problem is that the Fifth Amendment right not to incriminate oneself, and arguably the corresponding implied right to the assistance of counsel during an interrogation, is in fact separate and distinct from the prophylactic rules of Miranda. In other words, a person’s right not to incriminate himself is applicable to a much broader spectrum of situations than the specific custodial interrogation situation as described in the Miranda decision.
For instance, in McNeil v. Wisconsin itself, the issue concerned the legal effects of requesting an attorney’s assistance at an in-court hearing as it related to a police officer’s later attempts to question him. The Supreme Court responded with the above-quoted footnote when the defendant argued that asking for an attorney in court automatically invoked his Fifth Amendment, Miranda right to counsel, precluding any later attempts by law enforcement to talk to him without the assistance of an attorney. The end result was that because the defendant was not, at that court hearing, the target of an interrogation, his in-court request for an attorney was not the equivalent of a Miranda invocation.
The Supreme Court similarly held in another case, Kastigar v. United States,[6] that any person, even though not in custody when called as a witness “in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory,” may invoke his Fifth Amendment right against self-incrimination and refuse to testify. The only way to compel the witness to answer questions is through a formal grant of immunity; something a police officer attempting an interrogation is, of course, without authority to do.
These cases, however, don’t address the specific issue we’re addressing here. That issue is whether a criminal suspect’s Fifth Amendment, self-incrimination rights preclude an attempt to interrogate an out-of-custody suspect when he has expressed a wish to remain silent. And we’re not helped by the fact that there is no Supreme Court decision specifically discussing this issue.[7]
But there are a multitude of lower court decisions, in other contexts (e.g., use of one’s pre-arrest silence as evidence of guilt), telling us that although Miranda may not apply, a suspect’s Fifth Amendment right against self-incrimination is in effect before ever being taken into custody.
For instance, the federal Sixth Circuit Court of Appeal, in Combs v. Coyle,[8] held that; “In a prearrest setting as well as in a post-arrest setting, it is clear that a potential defendant’s comments could provide damaging evidence that might be used in a criminal prosecution; the (Fifth Amendment) privilege should thus apply.” Similarly, in United States ex rel. Savory v. Lane,[9] the Seventh Circuit held that; “The right to remain silent, unlike the (Sixth Amendment) right to counsel, attaches before the institution of formal adversary proceedings.”
More to the point, the Tenth Circuit, in United States v. Burson,[10] also found that the Fifth Amendment applies to questioning during the investigation of criminal conduct. In so finding, the Court noted that three principles were involved: (1) The invocation of the privilege must be given a broad and liberal interpretation; (2) the invocation of the privilege requires no special words, and (3) the privilege can be asserted by a suspect during an investigation.
The California Supreme Court is in apparent agreement. In People v. Riel,[11] the Court held that so long as the circumstances surrounding the obtaining of incriminating statements, pre-arrest, lend themselves to an inference that the out-of-custody suspect is relying upon the right to silence guaranteed by the Fifth Amendment, then his silence (or failure to respond to an accusation of a criminal act) may not be used against him.
Most recently, California’s Fourth District Court of Appeal, in People v. Waldie,[12] found that it violated the Fifth Amendment to use as evidence of guilt in court a criminal suspect’s lack of cooperation with law enforcement, including his repeated refusal to talk to an investigating officer. Specifically, the Court, in agreeing with a number of federal circuits, held that, “the use of a defendant’s prearrest silence as substantive evidence of guilt violates the Fifth Amendment’s privilege against self-incrimination. . . . (A)pplication of the privilege is not limited to persons in custody or charged with a crime; it may also be asserted by a suspect who is questioned during the investigation of a crime.”[13]
So no one can really argue that a suspect’s Fifth Amendment right to silence cannot be invoked during a pre-custody interrogation. But the problem is that it has also been held that the Fifth Amendment right against self-incrimination is actually a trial right, and that an officer who ignores it during an interrogation is not, in fact, violating the Constitution. It only becomes a constitutional violation when the results of that interrogation are used at trial.[14]
So if it does not violate Miranda, and it’s not a Fifth Amendment violation in itself, what then is the problem with continuing an interrogation despite the out-of-custody suspect’s attempt to invoke?
Two problems: First, the Supreme Court, in the Miranda decision itself, has condemned the continued interrogation of a person who expresses his wish to remain silent. Specifically, the High Court held that; “If the individual indicates in any manner, prior to or during interrogation, that he wishes to remain silent, the interrogation must cease.”[15] And in the context of Miranda, any number of other courts have similarly expressed their belief that continuing an interrogation of a person who has invoked his rights is unprofessional, unethical, and, perhaps, illegal.[16]
Secondly, even if you subscribe to the school of thought that any interrogation tactic is appropriate except for those specifically held to be in violation of a constitutional right, know that the use of incriminating statements obtained from an invoking suspect, whether in or out-of-custody, will not (except for perhaps impeachment purposes) be admissible in court.[17] So an officer’s flirting with what many courts consider to be an improper and unprofessional interrogation tactic will, in the vast majority of cases, gain nothing. It’s hard to find any positive aspects to this.
But this doesn’t mean that the interrogating officer is done. In the case of an out-of-custody suspect who invokes, although his invocation must be scrupulously respected with questioning immediately cut off, the officer is free to return at some later time and reinitiate the questioning. Being out of custody, so long as the officer has given the person a reasonable amount of time to consider his predicament and to seek the assistance of counsel if he so chooses, the officer is free to come back and try again.[18]
In the case of the in-custody suspect who prematurely attempts to invoke, the cases have similarly allowed an officer to make a later attempt to obtain a Miranda waiver and reinitiate questioning.[19]
So I’m going to climb off my limb now, and simply submit that the more professional and ethical tactic is to respect any suspect’s attempts to invoke, whether in or out of custody, and patiently wait to take advantage of court-sanctioned legal alternatives available to law enforcement. Better to play it by the rules than push the envelop on these issues, leaving us with another category of restrictive case law.
[1] Miranda v. Arizona (1966) 384 U.S. 436
[2] (1991) 501 U.S. 171
[3] Id., at p. 182, fn. 3
[4] People v. Nguyen (2005) 132 Cal.App.4th 350, 355-357
[5] McNeil v. Wisconsin, supra.
United States v. LaGrone (7th Cir. 1994) 43 F.3rd 332, 339
People v. Calderon (1997) 54 Cal.App.4th 766, 770-771
People v. Nguyen, supra.
[6] (1972) 406 U.S. 441
[7] See Jenkins v. Anderson (1980) 447 U.S. 231, 236, fn. 2
[8] (6th Cir. 2000) 205 F.3rd 269, 283
[9] (7th Cir. 1987) 832 F.2nd 1011, 1017
[10] (10th Cir. 1991) 952 F.2nd 1196, 1200-1201
[11] (2000) 22 Cal.4th 1153, 1189
[12] (2009) 173 Cal.App.4th 358, 364-367
[13] Id., at p. 366
[14] Chavez v. Martinez (2003) 538 U.S. 760
United States v. Patane (2004) 542 U.S. 630
[15] Miranda v. Arizona, supra., at pp. 473-474
[16] E.g.; see People v. Jablonski (2006) 37 Cal.4th 774, 817
[17] People v. Riel, supra.
People v. Waldie, supra.
Coppola v. Powell (1st Cir. 1989) 878 F.2nd 1562, 1568
[18] See People v. Storm (2002) 28 Cal.4th 1007, 1023-1027
[19] United States v. LaGrone, supra.
