Amicus Curiae Brief — Thompson v. Keohane

PR IN THE :

Supreme Court of the Gnited States

: OCTOBER TERM, 1994

CARL THOMPSON,

vs.

t, EW Oe is PATRICK KEOHANE, Warden,

~~ BRUCE.M. BOTELHO, Attorney General, State of Alaska,

oe

Ce

BEST AVAILABLE COPY, =

py

pee

QUESTION PRESENTED

1. When a defendant seeks to exclude a pretrial statement

on Miranda grounds and the trial judge finds he was not in

custody, what standard of review applies to that finding?

2. Can a person be in custody, for the purpose of the

Miranda rule, when the police have neither physically restrained

him nor commanded him to remain?

(i)

TABLE OF CONTENTS

EE i

MEE S ob dbid cece ccccccccccess v

Ineorest of amicus curiag ... 6.0.66 cece l

es os coc ee ccesceees 2

I hs 6 oes cence cecseees 3

DPM EE ECCS Coben ccccceccecsecccoce 3

I

Custody should be a factual determination made by the trial

court, reviewed for clear error on appeal and entitled to

i eke ccc be cece cccccc. 3

| A. The purpose of Miranda ................. 4

| B. Miranda’s limits and the definition of custody ... 7

C. Custody as a preliminary question of fact ..... 10

1. A fact-specific determination ........ 10

2. Distinguished from voluntariness ..... . 12

3. Other questions of fact ............ 16

PE GiGeebsccccccecccece 18

ih

If custody is to be a question of law, the definition of custody

| should requive @ eeimure . 0... eee 19

A. The value of a bright-line rule ............ 19

B. Coercion, comoulsion, and custody ......... 22

C. Seizure: A necessary but not sufficient

DT UE eh Ch bbecbcedccdocccecs 23

If Congress passes habeas reform before this case is argued,

supplemental briefing should be taken on the effect of

GRID oo wocitccccedbces aastesvees

Vv

TABLE OF AUTHORITIES

Cases

Beckwith v. United States, 425 U. S. 341, 48 L. Ed. 2d 1,

nn hh oc ion ob odeesebeeeeods 12

Berkemer v. McCarty, 468 U. S. 420, 82 L. Ed. 2d 317,

104 S. Ct. 3138 (1984) ............. 8, 9, 24, 25, 26

Brower v. Inyo County, 489 U. S. 593, 103 L. Ed. 2d 628,

eS Pe ee ee ee ee 24, 25

Brown v. Allen, 344 U. S. 443, 97 L. Ed. 469,

Ce a EEG See 6 0 0 666s FC o wb See vee 27

California v. Beheler, 463 U. S. 1121, 77 L. Ed. 2d 1275,

REA 7, 8,9, 24

California v. Hodari D., 499 U. S. 621, 113 L. Ed. 2d 690,

EPS PT eee Pee 24

Colorado v. Connelly, 479 U. S. 157, 93 L. Ed. 2d 473,

SP Ge WOE wc beddocvvaswesece 6, 18, 22

Cooter & Gell v. Hartmarx Corp., 496 U. S. 384,

110 L. Ed. 2d 359, 110 S. Ct. 2447 (1990) ........ 11

Custis v. United States, ‘28 L. Ed. 2d 517,

ee 14

Daubert v. Merrell Dow Pharmaceuticals, 125 L. Ed. 2d 469,

SE SU ovowes eed ten vecccsa 17

Davis v. United States, 129 L. Ed. 2d 362,

SOE EE eo WES Seb eve cebccdice 12, 15

Demosthenes v. Baal, 495 U. S. 731, 109 L. Ed. 2d 762,

Co Pe ee 16

Fare v. Michael C., 442 U. S. 707, 61 L. Ed. 2d 197,

A eo ee eee 21

Hamling v. United States, 418 U. S. 87, 41 L. Ed. 2d 590,

TEE EET eee 17

Harris v. New York, 401 U. S. 222, 28 L. Ed. 2d 1,

CS B. Go, Ge 0.0 nbs 6 a abs 5S 6 0644 05 14

Haynes v. Washington, 373 U. S. 503, 10 L. Ed. 2d 513,

Sas Se SD 46 FOSS CERES hos Cebacare 13

Illinois v. Perkins, 496 U. S. 292, 110 L. Ed. 2d 243,

SOs Gk Gro 0 6 oe Fee ee 6,9

Krantz v. Briggs, 983 F. 2d 961 (CA9 1993)......... 15

Leary v. United States, 395 U. S. 6, 23 L. Ed. 2d 57,

8-5 BAR Yerrese reat tee 21

Maggio v. Fulford, 462 U. S. 111, 76 L. Ed. 2d 794,

t[§S-$ JF QS cee ree 16

Marshall v. Lonberger, 459 U. S. 422, 74 L. Ed. 2d 646,

S&B EN ers Pore ieee ee 16

Mathis v. United States, 391 U. S. 1, 20 L. Ed. 2d 381,

ee Gs ED o's 6 on pene hebbeneehe 6 9

Michigan v. Tucker, 417 U. S. 433, 41 L. Ed. 2d 182,

as Gh EE 6 6 wecets ce thiseeecs 5, 12, 20

Miller v. Fenton, 474 U. S. 104, 88 L. Ed. 2d 405,

Se a> Ge SD oo ov Veo es cbhaados 13, 14, 15, 17

Minnesota v. Murphy, 465 U. $420, 79 L. Ed. 2d 409,

7 §- Se | eer eee 8, 9, 23, 26

Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694,

86 S. Ct. 1602 (1966) ...... 3, 4, 5, 7, 8, 10, 19, 20, 23

Moran v. Burbine, 475 U. S. 412, 89 L. Ed. 2d 410,

Sen Ge SEED nc. cae tbenbess ckheinene 7

New York v. Quarles, 467 U. S. 649, 81 L. Ed. 2d 550,

104 S. Ct. 2626 (1984) ..........045. 7, 12, 14, 20

Oregon v. Elstad, 470 U. S. 298, 84 L. Ed. 2d 222,

ap Ge ED oWcevewehuaes 4, 6, 14, 21, 22

Oregon v. Mathiason, 429 U. S. 492, 50 L. Ed. 2d 714,

2%. % | PeePrrrricT. Tir: 6,7, 8,9

vii

Orozco v. Texas, 394 U. S. 324, 22 L. Ed. 2d 311,

A eo ORR i oo 9

Parke v. Raley, 121 L. Bd. 2d 391,

MPD Be rb Rak ce be 16

People v. Mickey, 54 Cal. 3d 612, 818 P. 2d 841991)... 15

Pierce v. Underwood, 487 U. S. 552, 101 L. Ed. 2d 490,

EEG EE IE ar 11

Roberts v. United States, 445 U. S. 552, 63 L. Ed. 2d 622,

a Cn... os ewes edacvisens 7,8

Rudolph v. United States, 370 U. S. 269, 8 L. Ed. 2d 484,

i in ste sper ivepe eae deeees 16

Sandstrom v. Montana, 442 U. S. 510, 61 L. Ed. 2d 39,

I sas ae ow aes 6 ee 6 21

Snyder v. Massachusetts, 291 U. S. 97, 78 L. Ed. 674,

DEED nitidios 6s sbeeeygerovcnccee 21

Stansbury v. California, 128 L. Ed. 2d 293,

oS a ee ee 6

Stone v. Powell, 428 U. S. 465, 49 L. Ed. 2d 1067,

Se De artes 6 weed eseccveces 18, 27

Terry v. Ohio, 392 U. S. 1, 20 L. Ed. 2d 889,

i <n obs 6 eee neesseesec ee 23

Thompson v. State, 768 P. 2d 127

EE co cGuaeel sccccctccsce 18

Thompson v. Keohane, No. 94-35052

i Ah. oe ee seepeccccsess 18

Ulster County Court v. Allen, 442 U. S. 140,

60 L. Ed. 24 777, 99 S. Ct. 2213 (1979) ........ 16, 21

United States v. Mandujano, 425 U. S. 564,

48 L. Ed. 2d 212, 96 S. Ct. 1768 (1976) ........... 9

United States v. Washington, 431 U. S. 181,

52 L. Ed. 2d 238, 97 S. Ct. 1814 (1977) ........... 6

viii

Watts v. Indiana, 338 U. S. 49, 93 L. Ed. 1801,

GDS. Ce. 1947 (IDE) 0 nw cree dedevececedecss 13

Withrow v. Williams, 123 L. Ed. 2d 407,

113 S. Ct. 1745 (1993) ... 2... eee 7, 13, 14, 18, 27

Wright v. West, 120 L. Ed. 2d 225,

052 &. Ce, BERD CHGS cc cce ccc cccscccseses 27

Statutes

SE, Se Mae MEE ns 00s 0:00. 00004 2 eROO O20 ae 15

2B WU. B. ©. SARPOED bcc ccccccecececee see ses 3, 16

Miscellaneous

141 Comp. Res. BIGRT ww ccc ccccveeseccvces 27

American Heritage Dictionary (3d ed. 1992) ......... 22

Dix, Promises, Confessions, and Wayne LaFave’s Bright Line

Rule Analysis, 1993 U. Ill. L. Rev. 207 (1993)...... 20

Kamisar, “Probable Cause,” “Good Faith,” and Beyond,

69 Iowa L. Rev. 551 (1984) ....... cece eens 13

LaFave, The Fourth Amendment in an Imperfect World:

On Drawing ‘Bright Lines’ and“Good Faith’,

43 U. Pitt. L. Rev. 307 (1982) ... 2... 00 ee euee 20

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1994

CARL THOMPSON,

Petitioner,

vs.

PATRICK KEOHANE, Warden,

BRUCE M. BOTELHO, Attorney General, State of Alaska,

Respondents.

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF RESPONDENTS

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF)' is a non-

the accused into balance with the rights of victims and society to

rapid, efficient, and reliable determination of guilt and swift

execution of punishment.

The present case involves a collateral attack on the final

judgment of a state trial court based on an issue relating to the

applicability of a prophylactic rule. The u.anecessary relitigation

of such issues is contrary to the rights of victims and society

which CJLF was formed to advance.

1. Both parties have consented to the filing of this brief.

SUMMARY OF FACTS AND CASE

On September 10, 1986, the body of Dixie Thompson,

petitioner’s ex-wife, was found floating in a lake. She had been

stabbed 29 times and beaten severely. Brief in Opposition 1-2.

On September 11, 1986, following a press release requesting the

public’s help in identifying the body, Thompson called police

and told them that the description of the body matched that of his

former wife, whom he had last seen in August. Thompson

called again the next day and was told that the body was indeed

his former wife’s. Jd., at 2.

On September 15, 1986, Sergeant Stockard requested that

Thompson come to trooper headquarters to identify some of

Dixie’s personal belongings. /d., at 2-3. At this point, troopers

suspected Thompson as the killer. /d., at3. Petitioner drove his

own truck to headquarters, where he identified the items. Brief

for Petitioner 2. He was then questioned for two hours, during

which he was told several times that he was not under arrest and

could leave at any time. Brief in Opposition 3. Sergeant

Stockard did not advise Thompson of his Miranda rights because

he had no intention of arresting Thompson and did not feel he

was in custody. /d., at 3.

Thompson initially denied involvement in his ex-wife's

death. After being informed of the evidence against him, he

finally admitted to killing her and gave troopers his description

of what happened. /d., at 3-4. Following the interview,

Thompson’s truck was impounded and Thompson was driven

home, where he was arrested nearly two hours later. /d., at 4.

Thompson was indicted for first-degree murder and tamper-

ing with physical evidence. Brief for Petitioner 3. His motion

to suppress his confession on the basis of a Miranda violation

was denied by the trial judge, who found that Thompson was not

in custody when he confessed. /d., at 3-4. He was convicted of

both crimes. /d., at 4-5.

The Alaska Court of Appeals affirmed Thompson’s convic-

tion and the admission of his confession, finding that Thompson

was not in custody and Miranda was inapplicable. /d., at 5.

The Alaska Supreme Court denied review. On petition to the

federal District Court for a writ of habeas corpus, Thompson

argued that admission of his confession violated Miranda. Id.,

at 5. The District Court denied the writ, concluding that the

State court’s finding that petitioner was not in custody was

entitled to a presumption of correctness under 28 U. S. C.

§ 2254(d). /d., at 6. The Ninth Circuit affirmed on the same

basis. /bid.

SUMMARY OF ARGUMENT

When Miranda became the primary means by which the

admissibility of a confession was determined, it was intended to

simplify the law. Repeated de novo review of the custody

question thwarts this purpose. A finding of custody is a fact-

specific determination. It is usually an easy question for a court,

and even when it is not, de novo review is not required. Unlike

the issue of voluntariness, there are no stare decisis issues

affecting its designation. There are no constitutional impedi-

ments to entrusting trial courts with the custody issue; like many

other factual issues, a trial judge is better equipped to decide it.

If this Court decides that custody should be a question of

law, then it should further narrow the definition of custody such

that it requires a seizure. This will enhance the clarity of

Miranda and make the presumption of coercion more accurate.

If Congress passes habeas reform before this case is argued,

this Court should take supplemental briefing on the effect of that

legislation.

ARGUMENT

I. Custody should be a factual determination made by the

trial court, reviewed for clear error on appeal and entitled

to deference on habeas corpus.

Under Miranda v. Arizona, 384 U. S. 436, 468 (1966), the

only inquiry when seeking to admit a statement made during

custodial interrogation is whether the suspect was informed of

his constitutional rights. Speculation on the facts and circum-

stances surrounding the interrogation is irrelevant, as is the

suspect's prior knowledge of his rights. Jbid.

Thus, Miranda created a mandatory, conclusive presumption

that all custodial interrogation was “inherently compelling”

under the Fifth Amendment and required the exclusion of any

statement made under such circumstances unless appropriate

warnings had been given. /d., at 476-477. Both custody and

interrogation are required to evoke the presumption; the most

intense questioning need not be preceded by warnings if the

suspect is not in custody. See Oregon v. Elstad, 470 U. S. 298,

309 (1985).

The Miranda Court did not define “custody.” In fact, this

Court has acknowledged that “the task of defining ‘custody’ is

a slippery one,” such that application of the Miranda rule by

police officers could not be expected to be error free. /d., at

309. At the same time, the Miranda decision was intended “to

give concrete constitutional guidelines for law enforcement

agencies and courts to follow.” Miranda, supra, 384 U. S., at

441-442.

The inherent dichotomy between the rule’s purpose and its

application with respect to custody has resulted in confusion

among both state and federal appellate courts. Making custody

a question of fact will reduce this problem and better serve the

interests Miranda was designed to protect.

A. The Purpose of Miranda.

The Miranda decision was intended to curtail the intensely

coercive tactics used by police officers to elicit confessions from

suspects who were “in custody or otherwise deprived of [their]

freedom of action in any significant way.” /d., at 445. The

Court prefaced its decision by noting that “[a]n understanding of

the nature and setting of this in-custody interrogation is essential

to our decisions today.” Jbid. It then described such third-

degree tactics as “beating, hanging, [and] whipping” and cited

a recent New York case in which “police brutally beat, kicked

and placed lighted cigarette butts on the back of a potential

witness under interrogation for the purpose of securing a

statement incriminating a third party.” /d., at 446.

Such techniques, although undoubtedly exceptions to the

rule, were “sufficiently widespread to be the object of concern.”

Id., at 447. The Court felt that “[{ujnless a proper limitation

upon custodial interrogation is achieved... there can be no

assurance that practices of this nature will be eradicated in the

foreseeable future.” Ibid. The decision, however, focused more

on psychological police tactics than on physical brutality in deter-

mining the potential for coercion. See id., at 448, 455-456.

The environment in which a suspect is placed is a decisive

factor in evaluating coercion. As both the police manuals and

this Court emphasized, privacy is of utmost importance in

eliciting a confession. /d., at 449-451. While held in solitary

detention, the pre-Miranda suspect was interrogated, sometimes

for days, “with no respite from the atmosphere of domination.”

Id., at 451. Regardless of the method of interrogation, the

overriding constant is the restriction on the suspect’s freedom to

leave.

It was during this state of the law, in which an uneducated,

perhaps mentally disturbed suspect with no knowledge of his

constitutional rights, could be arrested, isolated, and interrogated

until he confessed, that Miranda was decided. Although the

Court noted that such confessions may not necessarily be

involuntary “in traditional terms,” warnings were required,

given the “compulsion inherent in custodial surroundings... .”

Id., at 457-458.

It bears noting what type of custodial interrogation the four

petitioners in Miranda underwent. Petitioner Vignera was

“picked up” by police and taken to the police station; the others

were formally arrested prior to interrogation. Id., at 491-497.

Present in all cases were “salient features—incommunicado

interrogation of individuals in a _ police-dominated

atmosphere... .” /d., at 445. It was this type of inherently

coercive questioning the Court sought to regulate.

Prior to Miranda, the admissibility at trial of a defendant’s

statement to the police was a due process issue that depended on

whether the statement was voluntary under the totality of the

circumstances. Michigan v. Tucker, 417 U. S. 433, 441 (1974).

Following Miranda, the issue was whether a suspect had been

Hence, the coexistence of custody and interrogation emerged as

the main point of contention in determining the admissibility of

a confession.

Although the focus has shifted, the rationale for exclusion

remains the same. Under either inquiry, official coercion is the

danger which exclusion seeks to remedy; where such coercion is

not present, the rationale for exclusion is weak and serves more

to impede the fact-finding process than to protect constitutional

rights.

To qualify for exclusion, a confession must be the product of

official compulsion. The absence of “the essential link between

coercive activity of the State . . . and a resulting confession by

the defendant” removes a confession from the category of

inadmissible evidence under either a due process or a Miranda

analysis. Colorado v. Connelly, 479 U.S. 157, 165-167, 170

(1986). Thus, the confession of an insane man is not excluded

by the Miranda rule, even if he is compelled by inner voices to

confess, as long as the voices are not those of law enforcement.

Id., at 170-171. “Absent some officially coerced self-accusa-

tion, the Fifth Amendment privilege is not violated by even the

most damning admissions.” United States v. Washington, 431

U. S. 181, 187 (1977).

Coercion is generally not presumed; it is the “interaction of

custody and official interrogation” that warrants a presumption

of compulsion. IJllinois v. Perkins, 496 U. S. 292, 297 (1990).

That a confession was unwarned is by itself insufficient to evoke

the presumption. Elstad, supra, 470 U. S., at 314.

“A Miranda violation does not constitute coercion, but rather

affords a bright-line, legal presumption of coercion... .” /d.,

at 307, n. | (emphasis in original). The type of custody required

to implicate Miranda must be of the sort that will enable the

court to presume coercion. This is why an officer’s intentions

to arrest the suspect are only relevant if they are communicated,

otherwise, it does not affect how a reasonable person in the

suspect’s situation would view his freedom. Stansbury v.

California, 128 L. Ed. 24 293, 299-300, 114S. Ct. 1526, 1529-

1530 (1994) (per curiam).

Although the presence of coercion may render a confession

involuntary under due process considerations, it alone does not

implicate Miranda. Any interview with a suspect will contain

elements of coercion. Oregon v. Mathiason, 429 U. S. 492, 495

(1977) (per curiam). “Miranda warnings are required only

where there has been such a restriction on a person’s freedom as

to render him ‘in custody.’ It was that sort of coercive environ-

ment to which Miranda by its terms was made applicable, and to

which it is limited.” /bid. (emphasis in original).

In cases in which a suspect has voluntarily agreed to answer

questions and subsequently attempted to suppress the answers,

this Court has uniformly held, with no more than a cursory

discussion of what constitutes custody, that no warnings are

required. California v. Beheler, 463 U.S. 1121, 1124 (1983)

(per curiam); Mathiason, supra, 429 U. S., at 495; Roberts v.

United States, 445 U. S. 552, 561 (1980).

It is involuntary, coerced statements that this Court sought to

exclude via the Miranda rule. “The absence of Miranda

warnings does not, by some mysterious alchemy convert a

voluntary and trustworthy statement into an involuntary and

unreliable one.” Withrow v. Williams, 123 L. Ed. 2d 407, 430,

113 S. Ct. 1745, 1762 (1993) (O’Connor, J., dissenting). When

the evidence weighs heavily against an involuntariness claim, as

when a trial court has found the defendant free to leave, a

confession should be admitted. Allowing the relitigation of a

custody issue the trial court has already ruled on is constitution-

ally unnecessary and stretches Miranda across ground it was

never intended to cover.

B. Miranda's Limits and the Definition of Custody.

Miranda reigns within the small and closely guarded territory

of custodial interrogation; it is not the governing doctrine outside

those borders. This Court has stated that “the decision as written

strikes the proper balance between society’s legitimate law

enforcement interests and the protection of the defendant’s Fifth

Amendment rights,” Moran v. Burbine, 475 U.S. 412, 424

(1986), and has refused to sanction its expansion. See New York

v. Quarles, 467 U. S. 649, 658 (1984).

The Miranda Court was careful to point out what its decision

did not encompass. It recognized that “[cJonfessions remain a

proper element in law enforcement” and specifically preserved

“general questioning of citizens in the fact-finding process” as

outside the scope of the decision. Miranda, supra, 384 U. S..,

at 477-478. Likewise, the police are free, as part of their

investigation, to conduct “inquiry of persons not under re-

straint,” and any statements one makes while not in custody are

admissible, notwithstanding a lack of warnings. Jbid.

Generally, when one is questioned by government agents, he

is considered to have answered voluntarily unless he claims the

Fifth Amendment privilege. See Minnesota v. Murphy, 465

U. S. 420, 429 (1984). Custodial interrogation is an exception

to this rule. /bid. Its warning requirement is an “extraordinary

safeguard [which] ‘does not apply outside the context of the

inherently coercive custodial interrogations for which it was

designed.’ ” Jd., at 430 (quoting Roberts v. United States, 445

U. S. 552, 560 (1980)).

Custodial interrogation is not an arbitrary cutoff point for the

requirement of warnings; it is when the “adversary system of

criminal proceedings commences, distinguishing itself at the

outset from the inquisitorial system .. . .” Miranda, supra, 384

U. S., at 477. It was the “incommunicado, police-dominated

atmosphere,” the “relentless questioning,” and “depriv[ation]

. . . Of any outside support” associated with it that the Miranda

Court found inherently compelling. /d., at 455-456.

The Miranda Court did not provide a bright-line definition

of custody. It held that warnings were necessary when the

suspect was “in custody at the station or otherwise deprived of

his freedom of action in any significant way.” /d., at 477. Later

cases have defined custody as “whether there is a ‘formal arrest

or restraint on freedom of movement’ of the degree associated

with a formal arrest.” Beheler, supra, 463 U.S., at 1125

(quoting Mathiason, supra, 429 U. S., at 495).

In the almost 30 years since the Miranda decision, no court

has provided a workable, bright-line definition of custody. This

Court has, however, more clearly outlined Miranda’ s boundaries

and its applicability. Subsequent decisions have chiseled away

at the broad definition of custody and made it more accessible to

trial courts. Although there remains a gray area in which the

custody determination may be unclear as a matter of law, that

area has shrunk to where it is extremely fact-specific.

One case which significantly limited the definition of custody

is Berkemer v. McCarty, 468 U. S. 420 (1984), in which the

Court held that a traffic stop, although a seizure, does not

amount to custody for the purposes of Miranda. Id., at 440.

The Court indicated that Miranda was to be strictly enforced,

“but only in those types of situations in which the concerns that

powered the decision are implicated.” /d., at 437. Although he

was certainly subjected to “some pressure,” the suspect was not

“completely at the mercy of the police,” and warnings were

unnecessary. /d., at 438.

This Court has laid down other bright-line rules excluding

certain situations from the definition of custody. A prison

inmate is under no compulsion and therefore not in custody for

purposes of Miranda when the interrogator is an undercover

police officer posing as a fellow inmate. Illinois v. Perkins, 496

U. S. 292, 296 (1990). A witness before a grand jury is also not

in custody while testifying, even if that witness is a suspect in the

. United States v. Mandujano, 425 U. S. 564, 580

(1976).

The Court has also furnished bright-line rules requiring a

finding of custody under certain circumstances. Once a suspect

has been arrested, he is in custody for Miranda purposes,

regardless of where the arrest takes place. See Orozco v. Texas,

394 U. S. 324, 327 (1969). A suspect in custody for any crime

States, 391 U. S. 1, 4-5 (1968).

In other areas, this Court has declined to draw bright lines

within the definitio> of custody, presumably so as to not unduly

v. Beheler, 463 U.S. 1121, 1125 (1983) (per

A meeting with one’s probation officer does not

necessarily place a suspect in custody, although it could,

depending on the circumstances. Minnesota v. Murphy, 465

U. S. 420, 429, n. 5, 433 (1984).

Most of the limitations on the need for Miranda warnings

Miranda does not require an appellate court’s application of law

pre ots ty eg Custody is usually an

always be a class of cases where the determination of whether a

particular encounter constitutes custody must be made on an

In the usual and most common scenario, a suspect is

arrested, often pursuant to a warrant, and taken to the police

station for questioning. There is no doubt that the suspect is in

custody. It was in these situations, particularly where interroga-

tion was prolonged and the suspect completely “cut off from the

outside world,” that the voluntariness of a confession was

questionable and for which Miranda was instituted. Miranda v.

Arizona, 384 U. S. 436, 445 (1966).

When the facts, as in the present case, do not fit neatly into

this archetype, the necessity for warnings is less clear. Before

determining if Miranda should operate to exclude any state-

od

1i

ments, a court must first determine if the decision was implicat-

ed: it must determine if the suspect was in custody.

This Court has held that where there are many possible

factual variations on a given problem, such that generalization

under a particular rule is difficult or impossible, the issue should

be decided by a trial judge. Cf. Pierce v. Underwood, 487 U. S.

552, 562 (1988) (trial court’s determination of whether a legal

position was “substantially justified” reviewed for abuse of

discretion). When an issue is heavily fact-dependent, the trial

court’s ruling should be reviewed deferentially, even when that

ruling involves the application of a legal standard. See Cooter

& Gell v. Hartmarx Corp., 496 U. S. 384, 402-403 (1990).

In Cooter & Gell, this Court held that, although the applica-

bility of Rule 11 sanctions is categorized as a question of law, in

practice it is properly an issue for the trial court because it

involves many “ ‘fact-intensive, close calls’ ” and because it

requires a judgment on the issue of reasonableness. /d., at 404-

405. The fact that leaving the issue to the trial judge could lead

to differing outcomes was not dispositive; the Court accepted

that “some variation in the application of a standard based on

reasonableness is inevitable. ‘Fact-bound resolutions cannot be

made uniform through appellate review, de novo or otherwise.’ ”

Id., at 405.

The issue of custody is, like the imposition of sanctions in

Cooter & Gell, a fact-intensive inquiry which requires a judge to

determine what is reasonable. Because this Court cannot

possibly account for every encounter between a suspect and a

police officer and assign to it a bright-line rule, it must at some

point delegate the task of applying the rule to the trial court.

Assigning the custody decision to a trial judge will not

preclude reversal of an erroneous ruling by the trial judge.

Where the trial court has made a legal or factual error, review

remains available, even if not de novo.

As this Court stated in entrusting the trial court with meting

out sanctions, an appellate court can still correct legal errors.

Id., at 402. The standard of review on appeal for questions of

fact is “clearly erroneous,” see id., at 400; it is not insurmount-

able. When the trial judge has obviously erred in admitting a

confession, a reviewing court can overturn the decision on

12

appeal or on habeas. The “clearly erroneous” standard merely

ensures that the trial court’s determination of the custody issue

will be accorded deference.

Allowing the trial judge to determine the issue of custody

will not threaten a defendant's constitutional rights; custody by

itself is not a constitutional issue. Miranda operates as a

safeguard to narrowly protect the Fifth Amendment right against

self-incrimination; the warnings themselves are not constitution-

ally required. New York v. Quarles, 467 U. S. 649, 654 (1984);

Michigan v. Tucker, 417 U. S. 433, 444 (1974).

Miranda serves as a buffer zone to protect Fifth Amendment

rights. Whether a defendant was in custody prior to confessing

is a threshold question used in determining whether Miranda

warnings were necessary, which is a prophylactic means of

excluding a suspect’s involuntary confession. When custody is

questionable, its determination is two steps removed from the

core constitutional issue of whether the defendant was compelled

to incriminate himself. Cf. Davis v. United States, 129

L. Ed. 2d 362, 373, 114 S. Ct. 2350, 2357 (1994) (declining to

“create a third layer of prophylaxis . . . when the suspect might

want a lawyer”).

Making custody a question of fact will not increase the risk

of admission of an involuntary statement. When the existence of

custody is unclear, voluntariness is typically a nonissue; where

the defendant was arguably free to leave, there is little support

for a claim of involuntariness and even less for Miranda's

conclusive presumption to that effect. In the rare case in which

such an argument is not frivolous, the defendant can still argue

involuntariness, which is reviewed de novo, apart from any

Miranda claim. Beckwith v. United States, 425 U. S. 341, 347-

348 (1976).

2. Distinguished from voluntariness.

It must be remembered that Miranda was intended to replace

the difficult voluntariness test as the means by which trial courts

ruled on the admissibility of confessions. It was not intended to

replace voluntariness as a source of confusion. Yet, this is what

it does if custody is constantly relitigated on appeal and habeas.

13

In shifting the focus from voluntariness to the Miranda rule,

the Court turned a complex legal analysis into a fact-based

inquiry. If Miranda is to simplify the law for police and courts

while safeguarding the rights of suspects, trial judges should be

allowed to determine when a suspect is in custody and in need of

warnings.

To reiterate, one of the driving forces behind the Miranda

decision was avoidance of the problematic “voluntariness” test.

As one commentator stated, in enumerating the many problems

with the pre-Miranda voluntariness or totality of the circumstanc-

es test, “[aJlmost everything was relevant, but almost nothing

was decisive.” Kamisar, “Probable Cause,” “Good Faith,” and

Beyond, 69 Iowa L. Rev. 551, 570 (1984). Making custody a

question of law would only lower the veil of uncertainty and

indecisiveness that Miranda sought to lift.

In voluntariness cases, “the relevant legal principle can be

given meaning only through its application to the particular

circumstances of acase... .” Millerv. Fenton, 474 U. S. 104,

114 (1985). Courts still use the “totality of the circumstances”

to make the determination. Withrow v. Williams, 123

L. Ed. 2d 407, 417, 420, 113 S. Ct. 1745, 1751 (1993). This

lack of specificity requires the rule to evolve through appellate

court decisions. In such situations, this Court is reluctant to

deprive the reviewing court “of its primary function as an

expositor of law.” Miller, 474 U. S., at 114.

Custody does not derive its meaning through appellate

decisions. It is usually a clear-cut, unambiguous issue that

requires no more than a cursory determination by the trial judge.

Ante, at 10. Only the relatively rare situations which fall in the

“gray area” are subject to dispute. The existence of these cases

does not warrant continuous reshaping by appellate courts.

A second reason for Miller is that voluntariness goes to the

heart of the Due Process Clause, and must necessarily be

reviewed independently. Haynes v. Washington, 373 U. S. 503,

515 (1963). Issues such as the voluntariness of a confession,

which directly implicate constitutional rights, are reviewed de

novo. Watts v. Indiana, 338 U.S. 49, 51 (1949). The volun-

tariness of a confession was thought to be too important an issue

to be left to trial judges.

14

Unlike the issue of voluntariness, custody is not of sufficient

constitutional importance to require independent review. That

unwarned confessions are less constitutionally significant than

involuntary ones is evidenced by the use to which they may be

put. Statements which violate Miranda may be used for im-

peachment purposes. Harris v. New York, 401 U. S. 222, 226

(1971). They do not taint a later, warned confession, Oregon v.

Elstad, 470 U. S. 298, 312-314 (1985), and they are admissible

for any purpose where exigent circumstances necessitated the

interrogation. New York v. Quarles, 467 U.S. 649, 655-656

(1984). ES Se ee “involuntary or

compelled statements . . inadmissible for any pur-

pose.” Withrow v. Williams, 123 L. Ed. 2d 407, 426, 113

S. Ct. 1745, 1759 (1993) (O’Connor, J., dissenting).

Custis v. United States, 128 L. Ed. 2d 517, 528, 114 S. Ct.

1732, 1738 (1994) is somewhat analogous here. Cases permit-

ting collateral attack on prior convictions for Gideon error did

not need to be extended to less fundamental claims. Similarly,

Miranda claims are qualitatively less fundamental than voluntari-

ness claims, and their determination can be given greater

finality.

In determining that the voluntariness of a confession should

be a question of law, the Miller Court centered on precedent.

First and foremost, because prior Supreme Court decisions have

treated the voluntariness issue as one of law, making it an issue

of fact would require overruling past decisions, something the

Court was very reluctant to do. Miller, supra, 474 U.S., at

115.

No such considerations underlie the issue of custody; this

Court is writing on a clean slate. Because Miranda is relatively

recent and this Court has never determined whether custody is an

issue of fact or law, there is no tradition to be dispensed with or

adhered to. As this Court has never spoken on the legal standard

to be given custody, and the lower courts are divided, this Court

would merely be clarifying, not changing, the law by making

custody a question of fact.

Along similar lines, Miller found that Congress had acted in

reliance on the status of voluntariness as a question of law in the

1966 amendment to the habeas statute, 474 U. S., at 115, but the

15

situation with Miranda and custody is quite different. Miranda

was a new decision in 1966. There was no established body of

case law to rely on. The only act of Congress dealing with

Miranda is 18 U. S. C. section 3501, which seems to abrogate

the decision altogether. See Davis v. United States, 129

L. Ed. 2d 362, 375, 114 S. Ct. 2350, 2358 (1994) (Scalia, J.,

concurring). Whatever the effect of this statute, it cannot

seriously be contended that Congress has endorsed Miranda or

required that it be a more fertile ground for reversals than is

absolutely necessary.

The Ninth Circuit recognized the distinction between the

voluntariness of a confession and whether a suspect is in custody

for Miranda in the very case petitioner asks this Court to

overrule: Krantz v. Briggs, 983 F.2d 961 (1993). Krantz

argued that custody should be a question of law, citing precedent

that the voluntariness of a confession or a waiver of Miranda

rights was a question of law. The Ninth Circuit acknowledged

that de novo review was proper in the cited situations, but

distinguished the issue of custody as a factual determination.

Id., at 963; accord People v. Mickey, 54 Cal. 3d 612, 649, 818

P. 2d 84, 99 (1991) (Mosk, J., unanimous).

In Miller v. Fenton, 474 U.S. 104 (1985), this Court

acknowledged that there is no foolproof methad of disti

a factual question from a legal one, id., 2i 113, but it did offer

some guidance. It stated that when the issue lies “somewhere

between a pristine legal standard and a simple historical fact,”

the determination is often made by allocating the function of

deciding the issue to the legal entity that is better equipped to

make it. /d., at 114.

Custody, like voluntariness, lies in this border zone where a

detached analysis of whether factual or legal issues predominate

could arguably go either way. Custody, however, does not carry

the same historical baggage that Miller found decisive to

voluntariness. Comparing custody with other baggage-free

issues, we find that it resembles those that have been found to be

questions of fact.

16

3. Other questions of fact.

Custody is not an issue that must be decided by every court

that encounters it on review; like so many other issues that are

routinely decided by trial courts, it is merely a factual component

of an ultimately legal question. It is remarkably similar to the

many issues that a trial judge must determine as a matter of fact

and should be reviewed under the same standard.

The competency of a defendant to stand trial is a question of

fact for the trial court and subject to the presumption of correct-

ness under 28 U. S. C. §2254(d). Maggiov. Fulford, 462 U. S.

111, 117-118 (1983) (per curiam). So is a defendant’s compe-

tence to withdraw a habeas petition. Demosthenes v. Baal, 495

U. S. 731, 735 (1990) (per curiam). This is because the trial

court’s opportunity to personally observe the witnesses, particu-

larly defendant, is an important factor in making these determi-

nations. /d., at 737; Fulford, 462 U. S., at 117-118.

The inferences which trial courts make based on their

findings of fact are also entitled to a presumption of correctness

on habeas or on appeal, even when the ultimate issue is one of

law. Marshall v. Lonberger, 459 U.S. 422, 435 (1983)

(voluntariness of guilty plea). The characterization of an event

can also be an issue of fact, even where it is the ultimate issue in

the case. When a trial court in a tax case found defendant's

cruise to have been a pleasure trip, this Court upheld the

characterization, stating that “such ultimate facts are subject to

the ‘clearly erroneous’ rule.” Rudolph v. United States, 370

U. S. 269, 270 (1962) (per curiam).

A finding which must be made before a conclusive presump-

tion attaches is a finding of fact. See Ulster County Court v.

Allen, 442 U.S. 140, 156 (1979) (explaining “basic” and

“ultimate” facts). The underlying assumptions created by virtue

of the presumption are also factual. See ibid.

Although the voluntariness of a guilty plea is a question of

law on which a reviewing court may rule de novo, the findings

underlying this determination are questions of fact. Lonberger,

supra, 459 U. S., at 431-432. Such findings include the level of

intelligence of defendant, how experienced he is with the

criminal justice system, and how well he was represented by

counsel. /d., at 435; see also Parke v. Raley, 121 L. Ed. 2d

17

391, 408, 113 S.Ct. 517, 527 (1992) (presumption of correct-

ness accorded to facts underlying prior conviction).

Even the voluntariness of a confession is only a question of

law after all the underlying facts have been found; all of the

circumstances to which the judge must look in making the

determination are factual issues. Miller, supra, 474 U. S., at

117. The Court stressed that subsidiary questions such as “the

length and circumstances of the interrogation, the defendant’s

prior experience with the legal process, and familiarity with the

Miranda warnings” were factual issues which were “conclu-

sive.” Ibid.

In federal cases, the trial court must determine the admissi-

bility of evidence pursuant to Rule 104 of the Federal Rules of

Evidence. Thus, the relevance of the evidence is determined by

the trial court. Hamling v. United States, 418 U. S. 87, 124-125

(1974). The reliability of evidence is also determined by the trial

court, even when it requires an in-depth assessment of the

validity of expert testimony and its applicability to the facts at

hand. Daubert v. Merrell Dow Pharmaceuticals, 125 L. Ed. 2d

469, 482, 113 S. Ct. 2786, 2796 (1993).

The determination of whether a defendant was in custody is,

like the determination of tiie relevance or reliability of a piece of

evidence, a preliminary fact that must be decided before the

evidence may be admitted. When that piece of evidence is a

pretrial statement by the defendant, the custody issue is a

precursor to determining whether Miranda’s conclusive pre-

Continuous relitigation of the custody issue thwarts the very

purpose of Miranda. By reviewing custody issues de novo,

courts are replacing the confusion surrounding whether or not a

confession was voluntary with the confusion over whether the

confessor was in custody. If courts are going to routinely review

the admissibility of confessions de novo, they may as well revert

back to the voluntariness test. If, however, Miranda is to remain

a part of the law of criminal procedure, it should be a workable

rule that serves its intended purpose. The issue of custody

should be decided by a trial judge ‘and reversed only for clear

error.

18

D. Withrow Concerns.

This Court recently refused to extend Stone v. Powell, 428

U. S. 465 (1976), which barred habeas review of most Fourth

Amendment claims, to include Miranda claims. Withrow v.

Williams, 123 L. Ed. 2d 407, 413, 113 S.Ct. 1745, 1748

(1993). The most important reason cited for this holding was the

finding that barring collateral review of claimed Miranda

violations would not reduce the burden on habeas courts because

prisoners could simply recast their Miranda claims as involun-

tariness claims. /d., at 420, 113 S. Ct., at 1754.

Amicus will not ask the Court to overrule this recent deci-

sion, although one point does bear mention. The facts of the

present case illustrate perfectly the fallacy of Withrow’s fear that

barred Miranda claims will simply be recast as involuntariness

claims, and that deciding those claims will be as much of a

burden as deciding the Miranda claims. See ibid. Absent any

overt coercion, when the custody question is close the voluntari-

ness question is typically not.

Thompson did make an involuntariness claim in the present

case, and neither the state nor federal appellate court deemed it

worthy of more than cursory discussion. Thompson v. State,

768 P. 2d 127, 131-132 (Alaska Ct. App. 1989); Thompson v.

Keohane, No. 94-35052 (CA9, Aug. 11, 1994) pp. 2-3 (unpub-

lished), App. to Pet. for Cert. Thus the Miranda issue is pure

excess baggage, in addition to the involuntariness claim and not

a substitute for it. Further, the custody question is the only issue

presenting any difficulty in an otherwise simple case of a clearly

guilty, properly tried murderer.

Even accepting Withrow as precedent, that decision does not

stand in the way of this Court’s denying independent review to

custody issues. Making custody a question of fact will actually

help alleviate some of the problems this Court foresaw in

Withrow by limiting the number of meritless involuntariness

claims.

A successful involuntariness claim requires some element of

government coercion. Colorado v. Connelly, 479 U.S. 157,

165-166 (1986). That element is most likely missing where the

element of custody, as found by the trial court, is also absent.

As the facts of the present case amply demonstrate, when the

19

issue of custody is subject to debate, an involuntariness claim

typically borders on the frivolous.

Il. If custody is to be a question of law, the definition of

custody should require a seizure.

Petitioner has chosen to brief the issue of whether he was in

custody rather than remand it to the Ninth Circuit. Brief for

Petitioner 43. In doing so, petitioner has raised the issue of this

Court’s clarifying the definition of custody “to provide additional

guidance to the lower courts in the application of the ‘custody’

standard.” Ibid.

‘If this Court decides that custody should be resolved as a

question of law such that it is subject to review de novo on both

appellate and habeas review, amicus requests that it further hone

the definition of custody. If custody is to be a question of law,

its definition should be more accessible; the line between

custodial and non-custodial interrogation should be brighter. If

custody must be a question of law, it shouid be restricted to

those situations in which the suspect has been seized by the

police.

Making seizure of the suspect a prerequisite to a finding of

custody will provide more guidance to police officers and courts,

and will benefit suspects and defendants with more uniform

applications of the law. Enhancing the brightness and clarity of

the rule by requiring a seizure will make Miranda a more

effective tool for the protection of Fifth Amendment rights.

A. The Value of a Bright-Line Rule.

Under Miranda, once a suspect is found to have been

subjected to custodial interrogation, the only relevant inquiry is

whether he was informed of his constitutional rights. A lack of

warnings furnishes a conclusive presumption of coercion and all

unwarned statements are excluded, regardless of how weighty

the evidence that they were voluntary. See Miranda v. Arizona,

384 U. S. 436, 458 (1966).

The Miranda Court recognized that not all unwarned

custodial interrogations would result in confessions which were

“involuntary in traditional terms.” /d., at 457. The decision,

20

however, was intended to “give concrete constitutional guide-

lines for law enforcement agencies and courts to follow.” /d.,

at 441-442. The Miranda warnings obviated the need for a case-

by-case analysis of whether a particular suspect was aware of his

constitutional rights; such an analysis could only be “specula-

tion,” whereas “a warning is a clearcut fact.” /d., at 469.

Bright-line confession rules, when properly placed, reduce

the risk of error involved in a case-by-case analysis. However,

such rules, particularly when they are prophylactic in nature,

unavoidably result in the suppression of constitutionally admissi-

ble evidence. Dix, Promises, Confessions, and Wayne LaFave’s

Bright Line Rule Analysis, 1993 U. Ill. L. Rev. 207, 230-231

(1993). Professor LaFave himself had this to say about bright-

line rules:

“as between a complicated rule which in a theoretical sense

produces the desired result 100% of the time, but which

well-intentioned police could be expected to apply correctly

in only 75% of the cases, and a readily understood and easily

applied rule which would bring about the theoretically

correct conclusion 90% of the time, the latter is to be

preferred over the former.” LaFave, The Fourth Amend-

ment in an Imperfect World: On Drawing ‘Bright Lines’ and

‘Good Faith’, 43 U. Pitt. L. Rev. 307, 321 (1982).

The advantages to bright-line rules regarding police conduct

are twofold. First, they make more sense to police officers who

are thus more likely to act properly. The law, it has been stated,

“cannot realistically require that policemen investigating serious

crimes make no errors whatsoever.” Michigan v. Tucker, 417

U. S. 433, 446 (1974). Hence, the need is for a “workable

rule” to reduce the “on-the-scene balancing” required of police

officers. New York v. Quarles, 467 U.S. 649, 658 (1984).

Given the multitude of different ways police interact with

citizens, a bright-line rule is required for an officer to accurately

determine the necessity of a warning so that relevant evidence

may be accessed without incurring the risk of later inadmissibili-

ty.

Second, a bright-line rule is more manageable in the courts;

it reduces the litigation associated with its application and

promotes fairness. Dix, supra, 1993 U. Ill. L. Rev., at 229. In

21

determining admissibility, the trial court requires a clear, easily

applied rule. If the standard is fuzzy, a court may improperly

exclude evidence, resulting in the release of defendants who

would be convicted under its proper application. Because the

state generally may not appeal such a ruling, it is important that

the trial court get it right the first time. The surest way is

through a bright-line rule.

Yet, there are costs associated with Miranda’s bright-line

rule. The evidence excluded is not always constitutionally

inadmissible. Oregon v. Elstad, 470 U. S. 298, 306 (1985). In

fact, requiring the warnings in every case excludes “trustworthy

and highly probative evidence even though the confession might

be voluntary under traditional Fifth Amendment analysis.” Fare

v. Michael C., 442 U. S. 707, 718 (1979). Although the “gain

in specificity” is said to “outweigh the burdens” associated with

the rule, this is only true where Miranda stays within its

prescribed boundaries. See id., at 718-719. As Justice

Cardozo’s oft-quoted statement notes, “justice, though due to the

accused, is due to the accuser also. The concept of fairness must

not be strained till it is narrowed to a filament. We are to keep

the balance true.” Smyder v. Massachusetts, 291 U. S. 97, 122

(1934).

Conclusive presumptions are so inherently unfair that this

Court has categorically banned their use against defendants. See

Sandstrom v. Montana, 442 U. S. 510, 523 (1979). If we are to

keep the balance true, a presumption against the people should,

at the very least, be confined to circumstances where the fact

presumed follows from the fact proven more likely than not. See

Leary v. United States, 395 U. S. 6, 36 (1969); Ulster County

Court v. Allen, 442 U. S. 140, 166 (1979) (standard for permis-

sive presumptions against defendant).

The defendant is not the only party who suffers an injustice

when the standard for admission or exclusion of evidence is

improperly applied. When a reliable and voluntary confession

is excluded from evidence, such that an admittedly guilty person

is unleashed upon society, an injustice is done. This injustice is

exacerbated if it is not due to the constable’s blunder, but to the

failure of the courts to clearly define the constable’s duties under

an ever-changing application of law.

22

If the purpose of Miranda is to guide both police officers

and courts by replacing case-by-case decision making in the area

of confessions, then the determination of whether a suspect was

in custody should be more accessible. If evidence is to be

excluded from the trial because of something the police did or

failed to do, the boundaries between permissible and impermissi-

ble conduct should not be faintly drawn. Exclusion should be

strictly limited to situations involving clearly custodial interroga-

tion, and the rationale behind Miranda as a bright-line rule

should be honored scrupulously. This can be accomplished by

making seizure a requirement for the finding of custody that

implicates Miranda.

B. Coercion, Compulsion, and Custody.

“Compel” means “[t]o necessitate or pressure by force.”

American Heritage Dictionary 385 (3d ed. 1992). “Coerce”

means “[t]o force... or... compel.” /d., at 367. The

essence of each is that a person is convinced by the application

of force to do that which he would ordinarily avoid. The

pressure may be psychological or physical.

The psychological pressure which leads to the automatic

exclusion of evidence under Miranda is only presumed from the

interaction of custody and interrogation; it is not presumed from

the fact of a confession or from the presence of the suspect at the

police station. Ante, at 6, 9. The custody and its resultant

coercion must both be the products of government action; some

action on the part of the police that is sufficiently coercive to be

termed custody is necessary. Colorado v. Connelly, 479 U. S.

157, 170 (1986).

The coercion Miranda prohibits does not include that

experienced by the guilty person who, upon being confronted

with the gravity of his crime, feels compelled by his own

conscience to confess. One’s conscience, like an insane person’s

inner voices, does not implicate Miranda or any constitutional

rights, regardless of its insistence. See id., at 170-171. “This

Court has never held that the psychological impact of voluntary

disclosure of a guilty secret qualifies as state compulsion... .”

Elstad, supra, 470 U. S., at 312.

23

The actual perpetrator of the crime may often fear that his

identity will be discovered, particularly while in the presence of

police officers, and particularly while being questioned as to the

extent of his knowledge about the crime. This is not necessarily

custody, and it is not presumptively coercive. When the

perpetrator of a crime voluntarily goes to the police station to

answer questions for the purpose of averting suspicion from

himself, Miranda does not apply. It perverts our system of

justice to allow a murderer who voluntarily talks to the police,

and perhaps even lies or implicates an innocent party, to later

exclude any statements on the basis that he was not advised of

his rights.

That a suspect does not immediately confess upon entering

the police station, but does so following a lengthy dialogue, is

insufficient to warrant a presumption of coercion in the absence

of evidence that he was not free to leave. Miranda does not

interests; it protects them against the type of official coercion

that leaves them with “no choice but to submit. . . .” Minneso-

ta v. Murphy, 465 U.S. 420, 433 (1984). “Volunteered

statements of any kind are not barred by the Fifth Amendment

and their admissibility is not affected by our holding today.”

Miranda, supra, 384 U. S., at 478.

The essential predicate of the warning requirement is the

“compulsion inherent in custodial surroundings.” /d., at 458.

It is the restraint on physical freedom that forms the basis for the

psychological pressure “to speak where [one] would not other-

wise do so freely.” Jd., at 467. For purposes of defining

custody, the emphasis must be on the degree to which one is

deprived of his physical freedom. If a suspect has not been

seized, no coercion should be presumed and Miranda warnings

should not be necessary.

C. Seizure: A Necessary but not Sufficient Requirement.

Seizure and custody employ a common theme, that of

physical or authoritative restraint. “Only when the officer, by

means of physical force or show of authority, has in some way

restrained the liberty of a citizen may we conclude that a seizure

has occurred.” Terry v. Ohio, 392 U.S. 1, 19, n. 16 (1968).

Custody requires that one be “significantly deprived of his

24

freedom of action.” California v. Beheler, 463 U.S. 1121,

1123 (1983) (per curiam).

This Court has decided against restricting Miranda to

situations in which the defendant has been formally arrested.

Although doing so would provide a bright-line rule and make

Miranda easier for police officers and courts to administer, the

Court feared that it would enable police to entirely circumvent

the decision. Berkemer vy. McCarty, 468 U. S. 420, 441 (1984).

However, custody is defined as the restraint on freedom of the

“*degree associated with formal arrest.’ ” /d., at 440 (quoting

Beheler, supra, 463 U. S., at 1125). If this Court is to continue

to so define custody, yet refrain from drawing the line at a

formal arrest, it should at least require a seizure.

1. Seizure defined.

The most recent and most thorough definition of seizure

under the Fourth Amendment is found in California v. Hodari

D., 499 U. S. 621 (1991). Two police officers chased Hodari as

he fled through an urban area. As he ran, Hodari threw away a

small rock of crack cocaine. A moment later, an officer tackled

Hodari and handcuffed him. /d., at 623. The issue was at what

point Hodari had been seized for purposes of excluding or

The Court held that he had not been seized prior to throwing

away the drugs, as he had not yielded to authority. It was only

when Hodari was tackled that he was seized for Fourth Amend-

ment purposes. /d., at 626. A seizure requires either physical

force or submission to a show of authority. A mere show of

authority by the police officer does not constitute a seizure unless

the suspect yields to it. /bid.

Prior to Hodari D., this Court decided Brower v. Inyo

County, 489 U.S. 593 (1989). The driver of a stolen car

crashed into a police roadblock which had been set up in the path

of his flight. /d., at 594. The Court held that he had been

seized at the time of the crash, even though he had had ample

opportunity to stop on his own. /d., at 598-599.

The key to the finding of seizure was the intent behind the

police actions which ultimately produced Brower’s detention. A

seizure is only effected “when there is a governmental termina-

2. Bapend sstawre.

not rise to the level of a Fifth Amendment violation. Miranda

warnings should thus only be required once a suspect has been

seized as defined in Fourth Amendment cases.

Although the custody analysis should only begin once the

suspect has been seized, it should not end there; something more

than a mere seizure is required for a suspect to be in custody.

This Court has so indicated in Berkemer, in which it held that a

traffic stop, although a Fourth Amendment seizure involving

detention of the driver and passengers following submission to

a show of authority, did not amount to custody for Miranda

purposes. Berkemer, supra, 468 U. S., at 436-437, 440.

The two critical factors in the Court’s Berkemer analysis

duration of a traffic stop is generally “temporary and brief.”

Id., at 437. A motorist so detained can typically expect to have

to answer several questions and perhaps wait while the officer

verifies the license and registration. /bid. This type of question-

ing is markedly different from custodial interrogation “which

frequently is prolonged, and in which the detainee often is aware

26

the answers they seek.” /d., at 438.

Second, the attendant circumstances surrounding a typical

traffic stop are such that the individual does not feel “completely

at the mercy of the police.” Jbid. Although a police officer

exudes an aura of authority and is able, by virtue of this authori-

ty, to “exert some pressure on the detainee to respond to

questions,” this does not rise to the level of custody. /bid. The

typical traffic stop is “substantially less ‘police dominated’ than

that surrounding the kinds of interrogation at issue in Miranda

itself... .” Jd., at 438-439 (citation omitted).

Seizure is thus a necessary but not sufficient condition for

custody; it alone does not exert the kind of compulsion that

Miranda sought to alleviate. Because custody is based on what

a reasonable person would have understood, it should require a

seizure plus some objective manifestations that the seizure is

likely to continue for more than a brief period. Based on

Berkemer, that something more must convey elements of

The element of detention tells the suspect and reasonable

person that he is not facing a temporary delay, but a more

prolonged one which he is powerless to end. The element of

intimidation seems to follow from the element of detention; it

tells the suspect and reasonable person that he is at the mercy of

the police.

Custodial i ion implies that ‘onine will ;

until the suspect confesses. This is what makes it coercive. It

is the “pressure on a suspect who is painfully aware that he

literally cannot escape a persistent custodial interrogator.”

Minnesota v. Murphy, 465 U. S. 420, 433 (1984). Unless the

compulsion rises to this level, Miranda is inapplicable. Unless

the suspect has been seized such that his freedom has somehow

been restricted, any compulsion will not be of the sort that

implicates Miranda. For this reason, and to provide a bright line

for police officers and trial courts to follow, custody for Miranda

purposes should require a Fourth Amendment seizure.

27

Ill. If Congress passes habeas reform before this case is

argued, supplemental briefing should be taken on

the effect of that legislation.

To reach his goal of de novo review of the custody question,

petitioner’s argument must clear three hurdles: (1) that custody

is a question of law, not fact; (2) that Miranda issues are

governed on habeas by the general rule for constitutional claims,

and not the “full and fair” standard of Stone v. Powell, 428

U. S. 465 (1976); and (3) that the general rule is de novo

review.

The first hurdle is the issue briefed in Part I, ante. The

second hurdle was the question in Withrow v. Williams, 123

L. Ed. 2d 407, 113 S. Ct. 1745 (1™3). The third hurdle is the

general rule of de novo review of question of law that has been

followed since Brown v. Allen, 344 U. S. 443 (1953).

In Wright v. West, 120 L. Ed. 2d 225, 112 S. Ct. 2482

(1992), this Court grappled with the question of whether the

Brown rule should continue to apply to mixed questions of law

and fact and came to no conclusion. That question is, of course,

ultimately for Congress to resolve, cf. id., at 247-248, 112

S. Ct., at 2497-2498 (O’Connor, J., concurring in the judg-

ment), and as of this writing it appears likely that Congress will

do so. On February 8, the House voted 291 to 140 to abrogate

the Brown rule. 141 Cong. Ree. H1427 (vote on Cox Amend-

ment to H.R. 729); id., at H1433 (passed as amended 297 to

132). This question is expected to come to the floor of the

Senate shortly.

If the Cox Amendment language, or something similar,

becomes law, its application would fall squarely within the

question presented here: the standard of review to be applied to

£; adidas el ae atten te a wae. The present case

would therefore make an ideal vehicle for the prompt resolution

of the issues invariably raised by new legislation: validity,

retroactivity, and interpretation.

In the event that Congress changes the standard before this

case is argued, as seems likely, amicus respectfully suggests that

the Court call for additional briefing on the point.

CONCLUSION

The judgment of the Court of Appeals for the Ninth Circuit

should be affirmed.

May, 1995