# Richard McCarty v. Captain Herdman

> Court of Appeals for the Sixth Circuit · September 6, 1983 · 716 F.2d 361

URL: https://www.frixlaw.com/law-library/cases/9471109

## Case

- **Full name:** Richard McCARTY, Petitioner-Appellant, v. Captain HERDMAN, Respondent-Appellee
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** September 6, 1983
- **Citations:** 716 F.2d 361; 1983 U.S. App. LEXIS 24234
- **Precedential status:** Published
- **Opinion:** Dissent by Wellford
- **Judges:** Kennedy, Martin, Wellford
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9471109

## Opinion text

WELLFORD, Circuit Judge,
dissenting.
I agree with much of the majority opinion in this case. As I read the opinion, the majority finds that McCarty was not in custody until he was formally placed under arrest. During the original confrontation and investigation at the scene, McCarty was not significantly deprived of freedom of action, despite the stipulation that the officer knew that McCarty would be arrested as soon as he got out of his automobile. This comports with the language in Miranda v. Arizona, 384 U.S. 436, 477-78 , 86 S.Ct. 1602, 1629-30 , 16 L.Ed.2d 694 (1966), stating:
Our decision is not intended to hamper the traditional function of police officers in investigating crime .... General on-the-scene questioning as to facts sur *365 rounding a crime ... is not affected by our holding.... In such situations the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present.
Consequently, I agree that McCarty’s statements made prior to formal arrest were made in a noncustodial situation and were therefore admissible. See U.S. v. LeQuire, 424 F.2d 341, 343-44 (5th Cir.1970).
Even if a suspected traffic offender were deemed to be “in custody” or significantly “deprived of his freedom” by the investigating officer at the scene of an investigation for a misdemeanor offense, (and McCarty was here charged with a first degree misdemeanor under Ohio law), I would hold that any admission or confession made under such circumstances to be admissible without a Miranda warning. See Clay v. Riddle, 541 F.2d 456 (4th Cir.1976).
I agree with the majority, however, that the later questioning after formal arrest at the police station was subject to Miranda, supra, since this was clearly a custodial situation. Argersinger v. Hamlin, 407 U.S. 25 , 92 S.Ct. 2006 , 32 L.Ed.2d 530 (1972), holds that a defendant charged with a misdemeanor, even a traffic offense, must have counsel if he is to be sentenced to jail, but the right to counsel would not apply as a constitutional requirement if an offender were deprived of his automobile license or fined in a misdemeanor proceeding. Application of this rationale to admission of evidence without a Miranda warning in this “first degree misdemeanor” situation compels the conclusion that Miranda warnings are only required in a clearly custodial situation, as where a formal arrest is made. McCarty’s confessions at the police station, therefore, if material, since they came after arrest and formal charges, would be inadmissible.
The later confessions, however, merely reiterate what McCarty had already admitted at the scene to the investigating officer. Failure to suppress what was essentially repetitious confession evidence, which should not have been admitted on the basis of failure to give Miranda warnings at the jail, was harmless error under the circumstances. Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967). I would therefore affirm the district court’s denial of habeas corpus relief.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9471109. Public record. Not legal advice.