From the Classroom
Miranda Review Quiz #1  
Let’s see how your current knowledge of Miranda case law stacks up. Give this a try! 

By Ray Hill 
Professor Emeritus, Santa Rosa Junior College 

Question One 

A suspect is arrested for residential burglary. He is given a Miranda warning and states: “I don't want to talk about it.” No further questioning takes place. Several hours later, another investigator approaches the in-custody suspect about a separate residential robbery. The suspect waives Miranda on this second case and agrees to speak on this crime. 

Statements from this second interrogation should be? 

ADMISSIBLE  /  INADMISSIBLE  

Question Two  

A suspect is arrested for rape. He is given a Miranda admonition and states: “I want a lawyer right now.” No questioning takes place. The following day, another detective from a neighboring agency, investigating a separate and unrelated sexual battery/false imprisonment case, contacts the suspect in jail. The detective explains that he wants to question the suspect concerning an unrelated case. A Miranda admonition is given and he waives his rights.  

Any statement obtained should be? 

ADMISSIBLE / INADMISSIBLE  

Question Three 

A suspect is arrested for rape. He is given a Miranda admonition and states, “I want a lawyer before talking.” No questioning takes place. Due to M.O. and description, the suspect is a “person of interest” in a neighboring agency’s case. That detective marks her calendar 14 days ahead. When the last date comes, she goes to the county jail to interview the “continuous custody/counsel asserted” suspect on her separate and uncharged case. A Miranda admonition is given and the suspect waives his rights. Some incriminating statements that corroborate other evidence are obtained during questioning.  

At a 402 motion hearing, the defense attorney argues the suspect had previously asserted his Miranda right to counsel, remained in custody and should not have been questioned. 

Any statement obtained should be: 

ADMISSIBLE /  INADMISSIBLE 

Question Four 

A child annoyance suspect consents to come to your station for a voluntary interview. After a Beheler admonition, he initially agrees to speak about the case. After 10 minutes of questioning, the suspect now states he “wants to have a lawyer present before speaking any further.” You end the interview and the suspect departs. 

Three days later, based upon follow-up witness interviews and a photo lineup, you obtain an arrest warrant and take the suspect into custody. He is advised per Miranda, waives and gives an incriminating statement.  

At a 402 hearing, the public defender wants these statements suppressed because the suspect had already asserted his Fifth Amendment right to counsel while being questioned on the case.  

The incriminating statements should be? 

ADMISSIBLE /  INADMISSIBLE 

REVIEW YOUR ANSWERS: 

Question One – ADMISSIBLE 

After a Miranda silence assertion, questioning is permitted on a separate and unrelated offense. “A general Miranda invocation of silence is not a bar to contact by police on all offenses and doesn’t raise counsel protections: (Michigan v. Mosley (1975) 423 U.S. 96; People v. DeLeon (1994) 22 Cal. App. 4th 1628; People v. Lispier (1992) 4 Cal. App. 4th 1317. 

Legal foundation: 

1. Honor the request to remain silent on offense number one. 

2. No promises, inducements, threats or functional equivalent on interrogation. 

3. Document an attenuation or “cooling off” time period between the silence assertion and attempting to question on the second, unrelated offenses. 

You can’t just put down report number one and pick up report number two. Case law has approved requestioning two hours later, one hour later, 45 minutes later, 20-30 minutes later, but not five minutes later. 

There is no hurry. Your suspect will be arraigned in 48 hours, excluding weekends and holidays. He or she isn’t going anywhere immediately. Set your watch and come back 30-45 minutes later and try on offense number two.  

4.  Seek and document a knowingly and voluntarily given waiver for questioning on offense number two. 

If there is a waiver, you can only question on offense number two. However, if in the course of this questioning, the suspect makes a statement about offense number one, log it, and continue your questioning on offense number two. When you are finished, because the suspect “opened the door,” ask him if he now wants to speak on offense one. If so, begin questioning under the pre-existing Miranda waiver. It is not necessary to re-Mirandize. 

Question Two – INADMISSIBLE 

There is a case law difference between requesting to remain silent and requesting the assistance of counsel. If the suspect unambiguously asks for an attorney, there can be no in-custody, police-initiated questioning on any crime (offense generic). “The rule of Edwards, et.al. applies when the suspect has expressed his wish for the particular type of lawyerly assistance that is the subject of Miranda” (Arizona v. Roberson (1988) 486 U.S. 62; Minnick v. Mississippi (1990) 498 U.S. 146 Arizona v. Edwards, (1981) 451 U.S. 477). 

With a Miranda counsel assertion, you cannot question, another investigator from your agency cannot question, or another investigator from another agency cannot question the suspect even on a separate offense. 

Exceptions: 

1. Questioning under the public safety exception or rescue doctrine. 

2. The suspect voluntarily initiates questioning. Seek a new Miranda waiver because your first admonition was not waived. 

3. Questioning 14 days later under the Shatzer rule (Maryland v. Shatzer (2010) 599 U.S. 98.) 

It is important if you are a second agency coming in behind another agency’s arrest, that before going to the county jail to attempt questioning on your crime, you should check with the first agency and determine the suspect’s Miranda status. If he or she waived Miranda and talked or only asked to remain silent, you are in the questioning business on your separate crime. If they asked for counsel, wait 14 days before attempting to question. 

One California case ruled that the 14-day Shatzer rule applies to a release from custody. A Dos Palos double-murder suspect asserted his right to counsel. Because of lack of evidence, he was released from custody. The defendant was rearrested 3 1/2 hours later, given a new Miranda admonition, waived, and gave incriminating statements. These statements were inadmissible. After a counsel assertion, it was ruled that law enforcement failed to wait 14 days after a release from Miranda custody for reinitiation of questioning (People v. Bridgeford (2015) 241 Cal. App. 4th 887.) 

Question Three – ADMISSIBLE 

Continuous custody is not “eternal” (Maryland v. Shatzer (2010) 559 U.S. 98.) 

A Miranda “break-in-custody” occurs when 14 days have passed after a defendant has asserted counsel, remains in custody, and agrees to questioning on a separate, uncharged offense.  

The defendant was a suspect in the molestation of his three-year-old son. He was incarcerated in state prison for molesting another boy. Investigators initially attempted to question the defendant, but he invoked his right to counsel. Two and a-half years later, investigators returned for re-questioning. This time the defendant waived Miranda and gave incriminating statements. Though the defendant had not been released from “physical custody,” he had been released from Miranda custody and re-questioning was permitted. The defendant had returned to the general prison population (returned home to “his own turf,”) where he was accustomed to the surroundings and maintained a “daily routine” (Maryland v. Shatzer. et. al.)  

When deciding on a time passage, courts have ruled: “We think it appropriate to specify a period of time to avoid the consequence that the open-ended Edwards presumption will not reach the correct result most of the time,” “It seems to us that period is 14 days,” and “That provides plenty of time for the suspect to get re-acclimated to his normal life, to consult with friends and counsel, and to shake off any residual coercive effects of his prior custody.”  

Question Four – ADMISSIBLE 

The suspect was not in actual or constructive custody, nor subjected to an atmosphere of custody when the request for counsel was stated. A person must be in custody for a request for an attorney to have legal effect. Miranda rights cannot be asserted in an “anticipatory” manner. 

(Bobby v. Dixon (2011) 55 U.S. 23; People v. Calderon (1997) 54 Cal. App. 5th 768.) 

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