From the Classroom
By Raymond Hill
Professor Emeritus, Santa Rosa Junior College 

Miranda Review Quiz #3 

1. You have a suspect in an uncharged child molestation case who is in custody on similar charges originating in a neighboring jurisdiction. You go to the county jail to question your suspect. He is brought to a jail interview room, not handcuffed, but escorted by a deputy. You tell your suspect that he is not under arrest, that he is free to return to his cell at any time, and that he need not answer any of your questions. The suspect agrees to talk. During the interview, he makes incriminating statements about his involvement with two victims. 

These statements will be suppressed because the suspect was in custody in the jail environment, not free to leave the jail premises, thus he should have been given a Miranda admonition and a voluntary waiver of rights obtained before questioning. 

TRUE OR  FALSE ?

2. A display case “smash” burglary occurs at a jewelry store. A suspect is arrested 15 minutes later, but is sans the fruits of the crime. While handcuffed and in the back of a patrol unit, the suspect is asked about the whereabouts of the stolen property. No Miranda admonition is given. He replies: “I ditched it in a storm gutter at 6th and Main.” Officers check this area and recover the evidence. 

Defense counsel wants the statement suppressed because of a Miranda violation and the evidence resulting therefrom suppressed as fruits of the poisonous tree.  

1. The statement should be?  

ADMISSIBLE or INADMISSIBLE ?

2. The evidence recovered should be:  

ADMISSIBLE or INADMISSIBLE ?

  A burglary suspect is arrested at home. An officer asks him: “Where is the property?” The suspect admits he hid the fruits of the crime at his brother-in-law’s house. There was no Miranda admonition. No further questioning takes place. Two hours later, at the police station, the arrestee is approached by a detective. He is told that his previous statement cannot be used against him in court, then Mirandized. The arrestee waives and acknowledges the statement he made at the arrest scene. 

1. The scene statement is: 

ADMISSIBLE or INADMISSIBLE  ?

2. The station statement is: 

ADMISSIBLE or INADMISSIBLE ?

ANSWERS: 

Question #1 – FALSE. A voluntary interview can be conducted in jail or prison. The fact a person is incarcerated in jail or prison doesn’t necessarily constitute custody for Miranda purposes (Peo. v. Krebs (2019) 8 Cal. 5th 265). “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. 4th 674). 

Case Notes: 

A 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 and could return to his cell at any time. The defendant made incriminating statements including 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 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. The defendant was exposed to no additional restraint “beyond the everyday conditions of confinement.” (Peo. v. Macklem, supra) 

A defendant was serving time in a Sacramento prison for possessing heroin. An investigator contacted him about tar heroin found in his cell. The defendant was told that 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. The 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 17). 

A defendant was serving a sentence in a Michigan state prison. He was under 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. The defendant was brought to the room, not handcuffed. He was told prior to interview that “he could stop talking to us at any time” and that “he was free to leave and return to his cell.” No Miranda admonition was given. The defendant was reminded during the course of the interview 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.” The defendant was told that he could leave and return to his cell and reminded again. 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 U.S. 499) 

Question #2 

a) Inadmissible. The suspect was in custody and was asked a question which likely could elicit an incriminating response. There is no public safety exception for the recovery (of even valuable) stolen property. His statement would be inadmissible unless later attenuated.  

b) Admissible. There are no fruits of the poisonous tree with a Miranda violation. The remedy for a Miranda violation is statement suppression. You have the goods. From a Fourth Amendment perspective, the suspect would have no standing to object to a search for evidence in a public area. However, you would have to link the suspect back to the stolen goods by video footage, physical evidence, a witness or with an “attenuated” Miranda waiver obtained later at the station (See Question #3).  

Case Notes:  

A defendant was harassing his ex-girlfriend in violation of a restraining order. He was also on probation for felony drug possession. His ex-girlfriend told police that the defendant possessed a gun. Colorado Springs police officers went to the defendant’s house and arrested him on the restraining order violation. An officer asked the defendant about possession of the gun. He initially refused to answer but upon continued questioning replied, “the Glock is in my bedroom on a shelf, on a wooden shelf.” The gun was recovered and the defendant was charged with being a felon in possession of a firearm. The gun was admissible but the statement linking the defendant to the gun was inadmissible. “The Miranda rule is not a code of police conduct, and police do not violate the Constitution by mere failures to warn.” “A Miranda violation only impacts the admission of unwarned statements into evidence at trial.” (U.S. v. Patane (2004) 542 U.S. 630) 

A Bakersfield police officer served a narcotics search warrant at a defendant’s apartment. The defendant was detained and handcuffed. An officer asked her if she had any narcotics on her person. She replied, “Yes.” A napkin containing 18 pieces of cocaine base was retrieved from her back pocket. The statement acknowledging possession of the drugs was suppressed. The defendant was in custody and was asked a question likely to bring about an incriminating response. The narcotics themselves were not suppressed because they were seized under an independent search basis (Peo. v. Whitfield (1996) 46 Cal. App. 4th 951) 

Even if a Miranda violation occurs, evidence on the victim’s body and forensic evidence found on the body would still be admissible. Fruits of the poisonous tree does not apply to a Fifth Amendment violation. (Brewer v. Williams (1977) 430 U.S. 387; Peo. v. Davis (2009) 46 Cal. 4th 539) 

An involuntary statement taken in violation of the Fourteenth Amendment will not only render the statement itself inadmissible, but also any contraband or physical evidence stemming from that statement as well.  

Example:  

A search warrant seeking illegal weapons was served at the defendant’s Sonoma County ranch. No weapons were found during an initial search. The defendant was Mirandized and asserted silence. Questioning continued with the intent of locating the guns. The defendant was told he would be released on his own recognizance and wouldn't be subject to federal prosecution if he told officers where the guns were hidden. He was also told that his custody would be extended if he didn't cooperate and he would not have the ability to make bail. The defendant made incriminating statements and led officers to the location where the guns were buried. Both the statements and the guns were inadmissible. The questioning was more than a mere Miranda violation. The express and implied threats and promises rendered the statement involuntary. (Peo. v. Vasila (1995.) 38 Cal. App. 4th 868) 

Question #3 

a) Inadmissible. The suspect was in custody and asked a question likely to produce an incriminating response. 

b) Admissible. This is known as attenuating or rehabilitating a Miranda violation. “When neither the initial nor subsequent admission is coerced, little justification exists for permitting the highly probative evidence of a voluntary confession to be irretrievably lost to the fact finder.” (Oregon v. Elstad (1985) 470 U.S. 298) Even though the first statement is inadmissible, the second statement can be argued as admissible. 

Several steps are important in the attenuation process: 

1. Initial custodial questioning should be brief and limited to an investigative motive e.g. locating the crime scene or another suspect. There is no “two-step” questioning motive (Missouri v. Seibert (2004) 542 U.S. 500). 

2. There are no 14th Amendment issues (threats, promises, etc.). 

3. There is a change in time and location (in Elstad, the time period was two hours later at the police station. 

4. There is a curative measure. The suspect is told that the first statement cannot be used as evidence in court. 

5. There is a knowingly and voluntarily given Miranda waiver before the second questioning. 

Case Notes: 

After a residential burglary arrest, detectives asked a defendant, “Do you know why we’re here?” and “Do you know the victim?” The defendant replied, “Yes, I was there.” The first unwarned statement was inadmissible. However, a second statement given a half hour later at the police station was attenuated through a voluntary Miranda waiver (Oregon v. Elstad, supra). Statements made during a warrantless search of the suspect’s home were attenuated when a voluntary Miranda waiver was obtained 1 1/2 hours later at the police station (New York v. Harris (1990) 495 U.S. 14. “Attenuated” statements taken one hour later at the police station were no longer attendant to the constitutional violation (Peo. v. Watkins (1994) 26 Cal. App. 4th 27).