From The Classroom
By: Ray Hill. Professor Emeritus 
Santa Rosa Junior College 

Miranda Review Quiz #2 

1) A suspect is arrested for murder. After a Miranda admonition, he wants to speak with counsel. No further questioning takes place. The suspect's wife arrives at the police station wanting to talk to the suspect. You relay this message to the suspect. He wants to talk with his wife. The wife is neither coached or prepped to ask questions of the suspect. The couple is then placed in an interrogation room inside the detective bureau. Their subsequent conversation is tape recorded without their knowledge. Incriminating admissions are made by the suspect.  

This recording should be? 

ADMISSIBLE or INADMISSIBLE 

2) An in-custody suspect is questioned without a Miranda waiver or police ignore a request for counsel and continue questioning. He claims the failure to comply with Miranda requirements violated his Fifth Amendment rights. He seeks a civil remedy under Title 42 – Section 1983 United States Code for a violation his federal civil rights under color of law. Will this lawsuit be successful? 

YES or NO 

3) A suspect is charged with soliciting the murder of his business partner. A criminal complaint was filed in Superior Court and an arrest warrant issued in his name. Hoping to gain a non-custodial statement. detectives ask the suspect to come to the station for a voluntary interview. When he arrives, he is given a Beheler admonition and agrees to talk to the detectives. Incriminating statements are obtained. The suspect is allowed to leave after the interview and arrested the following day. 

These statements should be: 

ADMISSIBLE or INADMISSIBLE 

4)  A college professor is suspected of selling grades to students who hadn’t attended classes in violation of federal law. Officers know that he has hired an attorney to represent him. Prior to arrest or criminal complaint, an informant and undercover officer meet with the professor at a coffee house. Recorded incriminating statements were obtained. These statements will be inadmissible because the suspect had retained counsel and was not advised of the right to have his attorney present during this conversation. 

TRUE or FALSE 

ANSWERS: 

Question #1 ADMISSIBLE 

There is no Fourth Amendment issue. The surreptitious recording is lawful because there is no reasonable expectation of privacy in a police interview room. “Indeed, in the jailhouse. The age-old truism still obtains: Walls have ears” (Ahmad A. vs. Superior Court (1989) 215 Cal. App. 3d 529).  

There is no Fifth Amendment issue. There is no “police initiated” questioning and the spouse would not be acting as an agent of law enforcement as long as she wasn’t coached or prepped to question her husband. The California Supreme Court has ruled in two separate death penalty cases that the mere fact of placing a family member into an interview room, where a subsequent conversation may take place and the suspect incriminates oneself, is not the “functional equivalent” of interrogation. “A suspect’s conversation with his own visitors are not the constitutional equivalent of police interrogation” (Peo. v. Thornton (2007) 11 Cal 3d. 746; Peo. v. Leonard (2007) 157 P 3d 973). 

There is no Sixth Amendment issue because the suspect has not yet been charged or arraigned (messiah v. United States (1964) 377 U.S. 201). 

There is no Fourteenth Amendment issue as long as prior to placing the spouse in the interview room there were no threats, inducements, or promises relayed to either party. 

(Arizona v. Mauro (1987) 481 U.S. 520; Peo. v. Mayfield (1997) 14 Cal. 4th 668; Peo. v. Hines (1997) 15 Cal. 4th 1015). 

Question #2 – No 

The United States Supreme Court has ruled that a civil liability action is barred for a “technical” Miranda violation.  “The rule excluding evidence obtained without a Miranda warning is not a basis for such suits, but merely a prophylactic measure to prevent violations of the right protected by the text of the self-incrimination clause” (Chavez v. Martinez (2003) 538 U.S. 760). Example: 

Detectives investigating a double homicide ignored the defendant’s requests for counsel and pursued an unsuccessful line of questioning in an attempt to develop investigative leads. Simply ignoring an invocation of Miranda rights doesn’t violate the due process clause of the Fourteenth Amendment (Peo. v. Jablonski (2006) 37 Cal. 4th 774). 

Thus, officers cannot be sued merely for failure to administer Miranda warnings or questioning after an invocation of rights. However, a “1983” civil rights action can still apply for a Fourteenth Amendment violation if force, coercion, inducement, promise or threat occurs before or during questioning that “shocks the conscience of the court” Examples: 

Plaintiff was arrested as the suspected "Prime Time Rapist”. Unknown at the time of arrest and the resulting media publicity, he had been misidentified through an erroneous latent fingerprint match. Investigators from the Tucson, Arizona Police Department and Pima County, Arizona Sheriff's Office planned to ignore any request for counsel and interrogate the plaintiff until he confessed (“wear him down emotionally” and "create a sense of helplessness”). Investigators also wanted a potential impeachment statement at trial. Multiple interrogators questioned the plaintiff over a 6-hour period using coercive tactics. He repeatedly asked for an attorney and maintained his innocence. Plaintiff was subsequently cleared of any responsibility for the crimes. He filed a civil suit claiming his family suffered humiliation, he had lost his job, and was evicted from his home due to the arrest and associated notoriety. Police officials are liable for deliberately ignoring due process rights. The planned misconduct rose to the level “where the prisoner was in a totalitarian nightmare, where police no longer obeyed the Constitution, but instead followed their own judgment, treating suspects according to their whims" (Cooper v. Dupnik (1988) 9th Circ. 963 F 2nd 122). 

Defendant was arrested for robbery/homicide, given her Miranda rights, and made repeated requests for an attorney. Detectives continued questioning, telling her that she could avoid a capital murder charge by confessing, they would only charge her with being an accessory to murder, she could get a better lawyer by helping herself out, and falsely told her incriminating physical evidence was found at the crime scene. This conduct was “egregious”. “The Constitution is not a set of rules that the government is free to violate”. “It may be that a suspect questioned in plain violation of well-established constitutional rights, as here, would be entitled to a summary judgment against the police officer in a Section 1983 action” (Garvin v. Farmon (2001) 9th Circ. 258 F 3d 951). 

Question #3 – Inadmissible 

The Sixth Amendment right to counsel applies when a suspect is charged via criminal complaint, indictment or petition. The prosecutorial phase of the criminal justice process has commenced.  

There is nothing to do with arrest or custody. In order for any subsequent statement to be admissible, the suspect must be told that he has been charged with a crime and a waiver of counsel must be “cleared” through a Miranda warning. If the suspect waives the right to have counsel present, questioning may proceed. Examples: 

Defendant was indicted for conspiracy to distribute methamphetamine. Officers went to his apartment and engaged in conversation about the crime without a Miranda warning. He was not arrested. Incriminating statements were obtained. Once defendant was formally charged a waiver of counsel has to be “cleared” through a Miranda warning (Fellers v. U.S. (2004) 540 U.S. 519).    

A criminal complaint was filed against the defendant for financial fraud of an elder. Before her arraignment, she was asked to meet with the prosecutor. She had not yet been appointed counsel by the court. An interview was conducted and incriminating statements were obtained.  Defendant has the right to counsel for any “charged” crime” and a waiver of the Sixth Amendment through a Miranda warning must be sought (Peo. v. Viray (2005) 134 Cal. App. 4th 1186).  

4) Question #4 - False  

The Sixth Amendment right to counsel attaches “at or after the initiation of adversary criminal proceedings against the defendant”. The hiring of an attorney for legal advice in anticipation of criminal proceedings invokes no Sixth Amendment protection. Because the questioning was non-custodial, no Miranda admonition is necessary (Massiah vs. United States (1964) 377 U.S. 201; Moran v. Burbine (1986) 475 U.S. 412). 

Note: The best legal source in California for coverage of the case law regarding the admissibility of statements can be found in Bob Phillips “Miranda and the Law - The Fifth Amendment – A Legal Update” available to Professional Subscribers.