Amicus Curiae Brief — United States v. Campos-Serrano

Supreme Court brief1971

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INDEX

Interest of the Amicus Curiae ....0 ccc cee cee eee ,

. , ‘

Argument:

The State Of Mind-Of A Law ‘Enforcement Officer

While Questioning A Suspect Is Largely Irrelev-

ant To The Determination Of Whether Miranda

Warnings Are Required And The Court Below

Erred In Holding. That Miranda Warnings Were

Required Because The Questions Of I.N.S. Agents:

Were Directed At Determining A Criminal Investi-

43 9 (0) |

Conclusion ...........00088: ty eae ever seen neees

Appendix:

An Analysis Of Reported Decisions ‘On The Issue —

Of “Custody” Under Miranda v. Arizona .......: .

-AvTHorities CITED.

CASES:

Agius v. United States, 413 F.2d 915 (5th Cir. 1969) -

Allen v. Uniled States, 390 F. 2d 476 (D.C. Cir. 1968)

Archer v. United States, 393 F. 3d 124 (Sth Cir 1968)

Cohen v. United States, 405 F. 2d 34 (8th Cir. 1968), —

cert. denied, 394 US. 943 (1969) ...00...2.205. ?

“Commonwealth v. Feldman, 248 A. 2d 1 (Pa. 1968)

Commonwealth v. are. 252 A. 2d 580 (Pa. 1969) .

Commonwealth ve defferson, 2 226 A. 2d 765 (Pa,

Super, 1906) 22. <tc ccenssco ves aes snonsee teense

Commonwealth v . Sites, 235 A. 24 387 (Pa. malls

E ae State, 968 A. 2d 508 (Md. App. 1970) .

~ Ui. .

Dean v. Commonwealth, 166 S.E., 2d 229 (Va. 1969) 10

Dosek v. United States, 405 F. 2d 405 (8th Cir. 1968) 4

Escobedo v. Illinois, 378 U.S. 478 (1964) .......--- 5, 12

_. Freije v. United States, 408 F. 2d 100 (1st Cir. 1969) 9

Hensley v. ‘United ‘States, 406 F. aa 481 ene Cir.

TOG) con veseasersaucanyes ceeane onan eseeswes ces 4

Hoffa v. United States, 385 US. 293 (1966) ...... 11, 12

Jackson v. State, 259 A. 2d 587 (Md. App. 1969) .. 14

Johnson v. Commonidéalth, 160 S.E. 2d 793 (Va. 1968) 10

Lowe v. United States, 407 F.. 29d 1391 (9th Cir.

p NGGDY. co canxa cs epseweess dence cueneueensana es sete 6,9

McMillan: v. United BHnes, 399 F. 2d 478 (Sth Cir.

1968) ...... t pean gece Vip i Vowhs enn es ceeseeaeeen es 12

Menendez v. United States, 393 F. 2d 312 (5th Cir.

19GB) -6a5 ns 5 ees cana ciscucsetweactucea sss daaeeaes 13

Miranda v. Arizona, 384 U.S. 486 (1966) ........-. .

1, 2, 5, 6, 8, 12, 13, 14, 15, 16

M yers V. State, 240, A. 2d 288 (Md. App. 1968) . 7

Ouletta v. Sarver, 307 F. Supp. 1099 (E.D. os

TOTO) savin cus doe aa booed teed 4 dee ee ea Reads eee 4

Uuletta v.-State, 442 S.W. 2d 216 (Ark. 1969) ...... 4

People v. Allen, 281 N.Y.S. 24 602 (N.Y.-App. 1967) 8

People v. Arnold, 426 P. 2d 515 (Cal. 1967) .....-.3 7,9

People v. Barnes, 252 A. 2d 398 (N.J. 1969) ......-. 14

People v. Beasley, 58 Cal. Rptr. 485 (Cal. App. 1967) 14

People v. Bright, 84 Cal.-Rptr. 691 (Cal. App. 1970) 9

People v. Brosnan, 299 N.Y S. 2d 263 (N.Y. App.

19GQ) bn kai p i dbase CPeag steeds e es oes vaaes 14

People v. Butter field, 65 Cal. Rptr. 765. (Cal. App.

Seen |!) :-) eon 7

People v. Fishetti, 264 N.K. 2d 191 (Ill. 1970) ...2.. 7.

People v. Giovianini, 67 €@al. Rptr. 303 (Cal. App.

TQGS) ccs ccc vxcsadeswysteswess ov ebecnceses ore 7

AT AA SNR,

iii.

People v. Hazel, 60 Cal. Rptr. 437 (Cal. App. 1967)... 7

People v. Hill, 452 P. 2d 329 (Cal. 1969) ......--- . 14

People v. Kasperek, 77 Cal. Rptr. 904 (Cal. App.

11) 3:) 14

People v. King, 78 Cal. Rptr. 146 (Cal. App. 1969) . 7

People v. Mercaant, 67 Cal. mot 459 Apo. .

1968) occ eee eee eee ee ee ee tanec e ees 12

People v. Morse, 452 P. 2d 607 (Cal. 1969) ........ 9

People v. Oramus, 250 N.E. 2d 723: (N.Y. 1969) wean, 14

People v. Orf, 472 P. 2d 1238 (Colo. 1970) ects cae 10

People v. Rodney, P., 233 N.K. 2d 255 (N.Y. 1967)

. 7, 9, 11

People v. Wright, 78 Cal. Rptr. 75 (Cal. App. 1969) 9 |

People v. Yukl, 256 N.E. 2d 172 (N.Y. 1969) ...... "9.

Roney v. State, 171 N.W. 2d 400 (Wis. 1969) ...... 14

_ Spiney v. United States, 385 F. 2d 908 (1st-Cir. 1967)

* cert. denied, 390 U.S. 921 (1968) ......... ere 3

State v. Anderson, 428 P. 2d 672 (Ariz. 1967) ...... 10

State v. Bradford, 434 S.W. 2d 497 (Mo. 1968) . weeee 14

State v. Church, 169N.W. 2d 889 (Iowa 1969) ...... 14 -

State v. District Court, 432 P. 2d 93 (Mont. 1967) .. 12

- State v. Farmer, 476 P. 2d 129 (Wash. App. 1970) .. 14

State v. Hall, 468 P. 2d 598 (Ariz. App. 1970) ...... 7

State v. Hunt, 447 P. 2d 896 (Ariz. App. 1968) .... 14

State v. Jiminez, 451 P.°2d 583 (Utah 1969) .-. tc. 14

State v. Kinn, 178 N.W. 2d 888 (Minn. 1970) ...... 10

State vi McKnight, 248 A. 2d 240 (N.J. 1968) ....-.. 15

State v. Sandoval, 452 P. 2d 360 (Idaho 1969) ...... 7

State v. Sherron, 463 P. 2d 533 (Ariz. 1970) ........ 7

State v. Taylor, 437 P. 2d 853 (Ore. 1968) ..... en a

State v. Tellez, 431 P. 2d 691 (Ariz. App. 1967) .... 12

State v. Thomas, 266 A. 2d 614 (N.J. Super. 1970) .. 10

State v. Thomas, 454 P. ‘Od 153 (Ariz. 1969) ........ 10

State v. Webb, 469 P. 2d 158 (N.Y. App. 1970) ..... 14

iv.

United States v. Bagdasian, 398 F. 2d 971 (4th Cir.

MOOD)" 55555255 yee sawn s ede eees oe denkss seas weee 4

. United States v. Browney, 421 F. 2d 48 (4th Cir.

1) ne ee 4

United States y. Caiello, 420 F. 2d 471 ne Cir,

1969) occ cee ce ence cece ce veceeteebeeuecce. 4

United States v. Campos- Serrano, 430 R 24 173

(7th Cir. 1970) ........ re eee 4

United States v. Charpentier,

Otte WOIL). nse cevyiewesyss anne eeesncnrecssevccass 7

United States v. Chikata, 427 F. 2d 385 (9th Cir.

1970) occ eee ee eee Gen eaweeessesecnes 4

United States v. Cortez, 425 F. 2d 452 (6th Cir.

MOU) « e¥eyeau nae paged weanenns syeess pu nveneses 9, 12

United States v. Davis, 259 F. Supp. 496 (Mass. 1966) 7

United States v. De LaCruz, 420 F. 2d 1093 (7th Cir.

ROOQ) sev i euwen caus oe yas soaes bad ehasksadesace 12

United States v. Delamarra, 275° F. Supp. 1 (D.C.

Cir. 1967) .......... EL Oe eT Te ore 14

United «States v. Dickerson, 413 F. 2d 1111 (7th -

Cir. 1969) 2... ccc cece eee e eee 3

United States v. Fish, 432 F. 2d 107 (4th Cir, 1970) 14

United States v. Gibson, 392 F. 2d 373 (4th ai

TIGA) nos cewonwecanaseetgy cnesueasentasuvcvsce sds 13

United States v. Hall, 421 F. 2d 540 (2nd Cir.

1969) ......... ey ewee bas ve pa shee Seen wsaades 4, 12, 13

United States \ v. Heffner, 420 F. 2d 809 (4th Cir.

ee) ee eee 4

ite States v. Jaskiewicz, 433 F. 2d 415 (3rd Cir.

CS) (|) rs 4,8

United States v. Leahey, 434 F. 2d 7 (1st Cir. 1970) 4

United States v. Marius, 378 F.2d 716 (6th Cir. |

meet); cert. denied, 389 U.S. 905 (1967) ee ery 4

et <j Seedy WEA eS, ee

—

Vv.

United States vy. Montas, 421 F. 2d 215 (Sth Cir.

Ly (0) a tase Oe a kde eee de anes sca xe

United States v. Prudden, 424 F. 2d 102F)(5th Cir.

1970) eee eee ee ee eeeceeeccecececsceeeeeees

United States v. Simon, 421 F. 2d 667 (9th Cir. 1970)

United States v. Squeri, 398 F. 2d 785 (2nd Cir.

1968) ......... aes a Sena wee eneyeeseeeyaeee ere

United States vy. Tchack, 296 F. Supp. 500 (8.D. N.Y.

EIOO) 20% 2nae ps euseudewss pooseegesunuacaeaeseeus

United States vy. Welsh, 417 F. 2d 361 (5th Cir.

1969) ....... ace eee eee eeeeeeegeues Seheeaela

United, States v. White, 417 F. 2d 89 (2nd Cir. 1969),

cert. denied, 397 U.S. 912 (1970) ..... 4 4e bees ees

Wdaliam v. United Stales, 381 F. 2d 20 (9th Cir.

1968) ..... ona eve asaesasaeeress eens seessteeese

Windsor vy. United States, 389 F. 2d 530 (5th Cir.

E908) sce geees'n 5500 e5455 eek se eeuccese penne les

OTHER AUTHORITIES:

| Kamisar, “Custodial Interrogation Within the Mean-

ing of Miranda,” Criminal Law And The Constitu-

tion—Sources and Commentaries 335 (1968) ......

14 .

Len

eel prutnaceite

A AE ah PI +

APT PE eruew'y

_ Arizona, 384 US. 436 (1966) to specific cases. More parti-

IN THE

Supreme Court of the United States

OcTOBER Treo, 1970

| No. 1028

UNITED STATES OF AMERICA,

Petttioner,

VS.

DIMAS CAMPOS-SERRANO, —_

oe Respondent.

.ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF OF THE STATE OF ILLINOIS

AS AMICUS CURIAE

INTEREST OF THE AMICUS CURIAE

Responsible prosecutors in every state are vitally con-

cerned with the scope and meaning of the concept of

custody in determining the applicability of Miranda v.

cularly, prosecutors are concerned with the relevance of

“focus” and its effect on the determination of custody.

Finally, the State of Illinois has a specific interest in

this case since the ‘admission into evidence at. state

trials of defendants’ confessions and admissions is sub-

ject,” ultimately, to review by the Court of Appeals for

the Seventh Circuit.

Accordingly, the State of Illinois, with the sponsorship

of its Attorney General, offers this brief in support of

the petitioner’s argument that the court below unduly

extended Miranda v. Arizona, 384 U.S. 486 (1966).?

1. The State of Illinois has no specific interest in the

resolution of the second issue presented herein, i.e. the

status of alien registration cards as “required records”.

ARGUMENT

THE STATE OF MIND OF A LAW ENFORCEMENT -

OFFICER WHILE QUESTIONING A SUSPECT IS

LARGELY IRRELEVANT TO THE DETERMINA:

TION OF WHETHER MIRANDA WARNINGS ARE

REQUIRED AND THE COURT BELOW ERRED IN

HOLDING THAT MIRANDA WARNINGS WERE

REQUIRED BECAUSE THE QUESTIONS OF LNSS.

AGENTS WERE DIRECTED AT DETERMINING A

CRIMINAL INVESTIGATION.

Ini United States v. Dickerson, 413 F. 2d 1111 (7th Cir.

1969) the court ‘below relied heavily on the state of mind

of revenue agents in determining. whether they must give

Miranda warnings to taxpayers whom they, question. In

particular, the Court of Appeals said that warnings are

required at “the first contact with the taxpayer after the

case has heen transferred to. the Intelligence Division”.

(413 F. 2d at‘1117.) In simpler terms, the court held

that as soon as the agent knows the case is criminal in

nature and intends to elicit information that incriminates,

Miranda warnings must be given. Presumably, this re-

sult would follow even, if the suspect were to be ques-

tioned in his own home during daylight hours ‘in the

presence of friends and family by a single, unarmed and

courteous agent. Surely, this concept of custody eannot

reasonably be applied to such a situation? — ="

2. The Dickerson rule_is based, in part, on the special

problems arising with agencies whose investigative powers

are primarily exercised in civil matters but may also be

used to secure evidence for criminal prosecutions. Even

so, the Dickerson rule represents a distinct minority view-

point. See: Spinney v. United States, 385 F. 2d 908 (1st

: ? :

In the. present case, the court used a similar sort of

rationale. The court relied heavily on the fact that “the

inquiry itself [was] directed at determining a criminal

violation such as in thisease where the agents are look- .

ing for forged ‘cards’” United States v. Campos-Serrano,

430 F. 2d 173, 176 (7th Cir. 1970).°

Cir. 1967) cert. denied, 390 U.S. 921 (1968); United States

v. White, 417 F. 2d 89 (2d Cir. 1969), cert. denied, 397 U;S.

_ 912 (1970); United States v. Bagdasian, 398 F. 2d 971: (4th

Cir. 1968); United States v. Marius, 378 F. 2d 716 (6th Cir.

1967), certs denied, 389 U.S. 905 (1967); Cohen v. United

States, 405 F. 2d 34 (8th Cir. 1968) cert. denied, 394 U.S.

943 (1969); United States v. Chikata, 427 F. 2d 385 (9th

Cir. 1970); Hensley v. United States, 406 F. 2d 481 (10th-

Cir. 1969). “See also Dosek v. United States, 405 F. 2d 405

(8th Cir. 1968) (S.E.C. Investigator); Ouletta v. State, 442

S.W. 2d 216 (Ark. 1969) (Federal hank examine? need not

give warnings when he suspected the defendant of forgery

and invited him to an interview at the bank) approved in

Ouletta v. Sarver, 307 F. Supp. 1099 (E.D. Ark. 1970). The

Seventh Circuit’s Dickerson rule has been specifically re-

jected in United States v. Caiello, 490 F. 2d 471 (2d Cir.

1969); United States v. Jaskiewicz, 433 F. 2d 415 (3rd Cir.

1970); United States v. Browney, 421 F. 2d 48 (4th Cir.

1970); United States v. Prudden, 424 F. 2d 1021 (5th Cir. .

1970) ; United States v. Simon, 421 F. 2d 667 (9th Cir. 1970).

Compare United States v. Prudden, 494 F, 2d 349 (oh ir.

1970) with United States v. Heffner, 420 F. 2d 809-¢4th Cir.

1969) and United States v. Leahey, 434 F..2d 7 (1st Cir.

1970) regarding the enforcement of administrative regula-

tions requiring warnings by means of the exclusionary rule.

3. This factor’ was not the only one considered by the

court but the remaining facts. of the case do noty it seems

to us, support any arguable eof Misi the defendant

was in “eustody” for purposes of Miranda. In this‘ case, ”

agents of the Immigration and Naturalization Service ar-

rested Manuel Rico in Chicago on November 19, 1968 during

GR tiie chatba ehMoad

What the.court below does is to import into Miranda

issues the concept of “focus” used in Escobedo v. Illinois, |

378 U.S. 478 (1964). The court below has dohe this virtu-

ally unconscious of the substantial dispute concerning the

continuing viability of the “focus” concept.

It seems to us that this Court eliminated the concept

of focus when it decided Miranda. See Miranda v. Ariz-

ona, 384 U.S. at 44, n. 4,.The existence of “focus” was

_ really unnecessary to the result in Escobedo ‘since the

petitioner there was clearly in custody of police at their

station. In all four of the cases giving rise to the Mir-

anda rule the suspect was in undisputed custody.‘ The

an investigation of aliens improperly in this country. The

“Nagents accompanied Rico to his apartment to collect his

personal belongings. At the apartment, the respondent

herein, Campos-Serrano, ‘opened the door. The agents told

respondent that Rico was under arrest but could gather his

belongings. ‘One of the agents then asked Campos-Serrano

where he was from. Respondent answered that he was

from Mexico and the agent then demanded some identifi-

cation. Respondent produced an alien registration receipt

eard and a social security card. The agents examined the

alien registration car@, returned: it to Campos-Serrano, and

left. Outside the apartment, the agents arrested a second

man whose alien registration card had been altered. They ©

returned to the same apartment where the three men lived

to allow the third man to collect his belongings. Inside the

apartment, the agents asked to see Campos-Serrano’s alien

régistration card a seeond time. Upon examination of the

card, the agents determined it had been altered and arrested

respondent.

4. Miranda v. Arizona (No. 759) (In Phoenix police sta-

tion after arrest) Vignera v. New York (No. 760) (In detec-

tive squad headquarters | after being picked up) Westover

y.. United States (No. 761) (In Kansas City police station

after arrest) California v. Stewart (No. 584) (In a cell at

’- a police station after arrest).

Ba Se a a i RR a a

Court characterized the-common features of the cases in

these words: “In each, the defendant was questioned .

in a room in which he was cut ‘off from the onfeids

worl. . . . They~all thus share salient features—incom-

mintieado interengation of individuals in a police domin-

ated atmosphere. .. .” 384 U.S. at 445. The Court applied

its holding to “custodial” interrogation or “an inter-

rogation occurring after a person has been taken into

custody or otherwise deprived of his freedom of aetion

in any significant way.” 384 U.S. at 444.

There is no language in these cases about “focus”

though in all of the cases there was “focus”. Nor is

there language concerning the intent of: the interrogators.

The Court simply abandoned’ the confusing and subjec-

tive concept of focus for the clearer and more meaningful

concept of custody. In short, the Court made a fresh

start in interrogation. cases, creating a new clear set of

rights and a new clear criterion for judging their appli-

eability.®

In the leading case of Lowe v. United States, 407 F. 2d

1391 (9th Cir. 1969) it was held that the “Court’s deci-

sion’ in Miranda clearly abandoned ‘focus of investiga-

tion’ as a test to determine when rights attach in. con-

fession cases.” In essence, the Lowe Court held .that it

does not matter what the officer knew about the defend- |

ant’s guilt or what the. officer’ intended to do with de.

fendant so long as the officer did nothing to make the ,

defendant believe = was in custody.

In line-with this reasoning the majority of courts have -

generally held that (1) the fact an officer knows the sus-

5. See Kamisar, “Custodial Fetviaetion Within the

Meaning of Miranda,” Criminal Law and The. Constitu-

tion—Sources and Commentaries, 335, 338-51, 362 (1968),

3 x

4 va Pe

\ a7

‘pect committed the crime or (2) intents to arrest the

suspect at the end of the interview or (3) would not al-

low the suspe¢t to leave if he-tried, does not require that -

Miranda warnings be given if thé:interview is nét-other-

wise custodial. United States v. Hall, 421 F.2d 540 (2nd

Cir. 1969); United States v. Charpentier, —— F. 24 ——

(0th Cir. 1971); State v. Hall, 468 P, 2d 598 (Ariz. App.

1970); People v. Arnold, 426 P. 2d 515 (Cal. 1967); Peo-

ple v. Hazel, 60 Cal. Rptr. 437 (Cal.sApp. 1967); People ~

v. Butterfield, 65 Cal. Rptr. 765 (Cal. App. 1968; People

v. Giovianini, 67 Cal. Rptr. 303 (Cal. App. 1968); People .

v. King, 78 Cal. Rptr. 146 (Cal. App. 1969); People v

Fischetti, 264 N.E. 2d 191 (Ill. 1970); People y. Rodney

P., 233 N.E. 2d 255 (N.Y.. 1967); Stute ». Sandoval, 452

P. 2d 360 (Idaho 1969); Myers v. State, 240 A. 2d 288

(Md. App. 1968). In essence, the courts have regarded

the intent or knowledge of the officer as irrelevant so long

as it is, unvoiced, i.e., not stated to the suspect. Allen v.

United States, 390 F. 2d 476 (D.C. Cir. 1968); William v. ©

United Sates, 381 F. 2d 2Q (9th Cir. 1968); United States

v. Davis, 259 F. Supp. 496 “Mass. 1966) (defendant un-*

aware of arrest warrant in possession of interrogator) ;

State v. Sherfon, 463 P. 2d 533 (Ariz. 1970); State v v.

Taylor, 437 P. 2d 853 (Ore. 1968).

The basic theory underlying this view, has been stated .

many timés. For example, in’ United States v. Squeri,

398 ai 785, 790 (2nd Cir. 1968), the court said:

. “The Fifth Amendment privilege prehibits the.gov-

ernment from compelling a person to incriminate him-

self. It was the compulsive aspect of custodial] interro-

gation and not the strength or content of the goverm

ment’s suspicion at the time the questioning was con-

ducted, which Jed the court to impose the “Miranda”

requirements with regard to custodial. questioning.

Daa AEG AAR BRE Naa

We believe that the presence or absence of compelling

pressures, rather than the state to which the govern-

ment’s investigation has developed, determines whether

the Miranda requirements apply to any hetacniee

case.”

Band in United States v. Jaskiewich, 483 F. 2d 415, 419.

(3rd: Cir. 1970) the court weighed the issue of whether :

“The affirmative duties imposed by Miranda arise

by virtue of the defendant’s being a potential target of

an indictment, or arise by virtue’ of the fact that a

government. agency has in some meaningful way sub-

jected him to ‘physical, or perhaps psychological, re-

straint. We are persuaded that those duties arise not

because the defendant has become the focus of a poten-

tial indictment but because the:government has in some

meaningful way imposed restraint on his freedom of

action.”

The most striking example of this interpretation of

Miranda is People vy. Allen, 281 N.Y.S. 2d 602 (N.Y: App.

1967). There an officer with probable cause to arrest and

an intention to arrest went to the suspect’s home and

questioned him in the presence of his family without tell-

ing him. he was under arrest. After the ¢onversation the

suspect was arrested. The court held that warnings were

not required. A footnote in Miranda, detailing, with ap-

parent approval, the Scot’s practice of interrogating sus-

pects in their-homes (384 U.S.:at 479 n.. 46) led the

court to believe this procedure does“ not require the

giving of war nings.

‘The vourts which adhere generally to the view that the

foeus concept is to be discarded have formulated an

“objective” test of custody, ie, whether under the cir-

cumstances of the case, a.reasonable man would believe

himself to be in eustody. The key phrase is a “reason-

able” belief on the part of the “reasonable” suspect. The

mere subjective assertion of a suspect, that he: considered

himself under arrest is not enough. Fretje v. United

Statesy 408 F. 2d 108 (1st Cir. 1969); Lowe v. United

States, 407 F. 2d 1391 (9th on 1969); People v. Morse,

452 P. 2d 607 (Cal. 1969). Cf. United States v. Cortez,

495 F. Pd 452 (6%h Cir. on. ceo ius frailties and

sensitivities of the individual are not relevant. People v.,

Rodney P., 233 NE. 2d 255 (N.Y. 1967). As was said in

the recent .case of Peoplé v. Yukl, 256 N.E. 2d 172, 174

(N.Y. 1969) the issue is “Not what the defendant thought

but rather what a reasonable man, innocent of any crime,

would have thought. had he been in, the defendant’s posi-

tion.”

Under the objective test the court in People v. Arnold,

426 P. 2d 515 (Cal. 1967) refused to accept the simple

assertion of a suspect who said she thought she had no

alternative but to appear for questioning. The court

asked the trial court to consider:

“the precise language used by the deputy district

attorney in summoning Mrs. Arnold to his offiee, .. .

any statements of- the deputy not transcribed, made

before or after formal interrogation and . _ the physi-

eal surroundings ...: the extent to which- the authori-

ties confronted defendant with evidence of her guilt,

the pressures exerted to detain defendant and any other

circumstances which might have led defendant reason-

ably to believe that she could not leave freely.” (426

P. 2d at 522

At the other end of the spectrum are those, courts

which use foeus as a definitive test. These eourts. reason

that custody arises at the latest when the officer has

probable cause to arrest. See People v. Wright, 78 Cal.

_Rptr. 75 (Cal.. App. 1969); People v. Bright, 84 Cal.

-, Rptr. 691 (Cal. App. 1969). See also Windsor v. United

“States, 389 F. 2d 539 (Sth Cir..1968); State v. Anderson,

428 P. 2d 672 (Ariz. 1967); State v. Thomas, 454 P. 2d

153 (Ariz. 1969); People v. Orf, 472 P. 2d 123 (Colo.

1970); State v. Kinn, 178 N.W. 2d 888 (Minn. 1970); °

State v. Thomas, 266 A. 2d 614 (N.J. Super 1970); Com-

monwealth v. Sites, 235 A. 2d 387. (Pa. 1967); Common-

wealth v. Feldman, 248 A. 2d 1 (Pa. 1968); Johnson v.

Commonwealth, 160 S.E. 20 793 (Va. 1968); Dean v.

Commonwealth, 166 S.B. 2d 229 (Va. 1969).

~The questionable results flowing from the use of a

strict focus. test to determine the time when’ “custody”

exists are shown in Windsor v. United States, 389: F. 2d:

930 (Sth Cir. 1968) and Commonwealth v. Jefferson, 423

Pa. Super. 541, 226 A. 2d 765 (1966). In Windsor, two —

F. B. IT. agents questioned defendant in his hotel room.

The defendant was told that he was not under arrest,

was not being detained in any way and did not have to

answer any questions. The court found his inculpatory

oral statement inadmissible because the agents had prob-

able cause to arrest defendant prior to the questioning.

In Jefferson, the defendant was eventually convicted of

murder growing out of a stabbing which took place on

public streets. A police officer on patro! proceeded to a

nearby hospital to investigate. Upon entering the acci-

dent ward he found several persons including the de-

fendant. In answer to his general inquiries defendant

made an inculpatory statement. Another police officer ar-

rived several minutes later and was briefed by the first

officer. The second officer asked the group of people, “who -

did the stabbing?” Defendant said “T did.” No warnings

were given to defendant prior te either of the statements.

The court held that custody. “attached” after the ques-

tioning of the first officer but before the questioning of

the second officer. The explanation given was that the

‘second officer, due to being briefed by the first officer,

had probable cause to arrest the defendant. In comment-

ing on this decision, the New York Court of Appeals

stated, “The reasoning overlooks the language and pur-

pose of the Miranda warnings which is to protect the in-

dividual’s freedom of choice—to answer or not answer—

in situations which-are inherently -coercive. In so. doing

the Pennsylvania Court reached the rather anomalous -

result of rejecting an admission made under the same

circumstances and conditions as. the admissions it aé-

cepted merely because as a result of the first questioning,

the police would not have permitted her to ‘leave, had

she attempted to do so.” People v. Rodney P., 236 N.E.

2d 255, 259 (N.Y. 1967). |

The courts that rely solely or heavily on focus seem to

make two serious errors. The first is ignoring the clear

implication in Hoffa v. United States, 385 U.S. 293

(1966) that whether the police have probable cause to

arrest has no relevance to when the right of a suspect to

receive warnings attaches. In Hoffa, an -informer in

Hoffa’s group recorded several conversations in which the

informer participated and which constituted evidence of

jury tampering. In answer to the contention that when.

the informer and the Government had probable cause to

arrest Hoffa, they should have done so instead of con-

tinuing to participate in’ additional conversations, the

Court said; |

“Law enforcement officers are under no Constitution-

- al duty to call a halt to a criminal investigation the

moment they have the minimum evidence to estab-

lish probable cause, a quantum of evidence may fall

short of the amount necessary to support a criminal

conviction.” 385 U.S. at 309-10. -

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The second error is that the “focus” courts have not

only failed to read Hoffa and Miranda carefully—they

haye failed to read Escobedo carefully. The test in

Escobedo. was not merely “focus”, it was “focus” and cus-

tody and interrogation. The Court in Escobedo defined

the situation in which‘ its holding became operative in

this language: | |

“Where .. . the investigation is no longer a general

inquiry into an unsolved crime but has begun to focus .

on a particular suspect, the suspect has been taken into

police custody, (and) the police varry out a process of

interrogations that lends itself to eliciting ineriminat-

ing statements.” (Fscobedo v. Illinois, 378 U.S. 478,

490-91).

Several courts consider focus not as a determinative

factor but -as a significant one. The degree of signifi-

cance attached to focus varies from ease to ease. See

Agius v. United States, 413 F. 2d 915 (5th Cir. 1969)

(existence of focus requires close serutiny); Archer v.

United States, 393 F. 2d 124 (5th Cir. 1968); Wedhllan

v. United States, 399 F. 2d 478 (5th Cir: 1968); United

States v. Montas, 421 F. 2d 215 (5th Cir. 1970); United

States v. De LaCruz, 420 F. 2d 1093 (7th Cir. 1970);

United States v. Cortez, 425 F. 2d 453 (6th Cir. 1970);

State v. Tellez, 431 P. 2d 691 (Ariz. App. 1967); People

v. Merchant, 67 Cal. Rptr. 459 (Cal. App. 1968); State v.

{

District Court, 432 P. 2d 93 (Mont. 1967).

The Second Cireuit Court of Appeals took this posi-

tion in a case where three agents interviewed a suspect

in his home. United States v. Hall, 421 F. 2d 540 (2nd

Cir. 1969). The court first held that the fact the agents

would have stopped the suspect if he fled was immaterial.

The court then referred to the footnote in Miranda con-

. cerning interrogation at the home:

“We do think it (the footnote at 384 U.S. 478 n. 46) -

suggests that in absence of actual arrest something

must be said or donesby the authorities either in their

manner of approach or in the tone or extent of their

questioning, which indicates that they would not have

heeded a request to depart or to allow the suspect to’

do so. This is not to say that the amount of informa- .

tion possessed by the police and the consequent acuity

of their ‘focus’ is irrelevant. The more cause for be-

.. lieving the suspect committed the crime, the greater

the tendency to bear down im interrogation and to

ereate the kind of atmosphere of significant restraint:

that triggers Miranda.” (421 F. 2d at 545).

The court in Hall seems to view “focus” as having a

dual role. First, it is a factor for aiding judgment as fo

the relative credibility of questioner and suspect as they

each contend for a finding favorable to their position.

Second, if the law enforcement officers have ‘focused’ on

a particular suspect, the court should pay close attention

to the possibility that this subjective focusing might lead -

to the placement of objective pressures on the defendant.

“The more ‘cause for believing the suspect committed

the crime, the greater the tendency to bear down in inter-

rogation and to create the kind of atmosphere of signifi-

cant restraint that triggers Miranda, and vice versa.”

’ United States v. Hall, supra at 545. This limited view of

the role “focus” plays in determining. whether custody |

exists has some validity.

However, experience has shown that it is the lack of

focus that is most often the operative fact in reported de-

‘cisions. Several courts have reasoned, in effect, that since

the police had no reason to take anyone ‘into custody—

the person interviewed was not,. in fact, in custody. See

United States v. Gibson, 392 F. 2d 373 (4th Cir. 1968);

Menendez v. United States, 393 F. 2d 312 (Sth Cir. 1968) ;

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United States v. Welsh, 417 F. 2d 361 (5th Cir. 1969);

‘United. States. v. Delamarra, 275 F. Supp. 1 (D.C. Cir. |

1967); United States v. Pchack, 296 F. Supp. 500 (S.D.

- N.Y. 1969); State v. Hunt, 447 P. 2d 896 (Ariz. App.

1968); People v. Hill, 452 P. 2d 329 (Cal. 1969); People

v. Beasley, 58 Cal. Rptr. 485 (Cal. App. 1967); People v.

Kasperek, 77 Cal. Rptr. 904 (Cal. App. 1969); State.

Church, 169 N.W. 2d 889 (Iowa, 1969): Jackson x. ‘State,

259 A. 2d 587 (Md. App. 1969); State v- Bradford, 434

S.W. 2d 497 (Mo. 1968); State v. We bb, 469 P. 2d 153

(Cal. App. .1970); People v. Oramus, 230 N.E. 2d. 723

(N.Y. 1969) (by. implication) ; People v. Brosnan, 299:

N:Y.S. 2d 263 (N.Y. App. 1969); Commonwealth v. Frye,

252 A. 2d 580 (Pa. 1969); State v. Jiminez, 451 P. 2d

083 (Utah, 1969); Roney v. State, 171 N.W. 2d 400 (Wis.

1969). See especially. People v. Barnes, 252 A. 2d 398

(NJ. 1969); Coward v. State, 268 A. 2d 508 (Md. App.

1970); State v. Farmer, 476 P. 2d 129 (Wash. App. 1970);

United States v: Fish, 432 F. 2d 107 {4th Cir. 1970). — -

It is the position of the amicus curiae that focus is

significaht only when it is absent: The lack of focus can

serve to assure a court that a particular interrogation is

general investigative questioning and thus outside the

scope of Miranda. However, in nearly every case, the eus-

tody question can be decided after a careful examination

of the objective circumstances of such interrogation with-

out considering the subjective mental state of the ques-

tioner or the syspect. The resolution of custody questions

almost exclusively upon objective circumstances, ice.,

where and when interrogation took place, who wax pres-

ent and what was said and’ done, is the best, most accur-

ate and fairest approach. In our view, the best rule for

determining custody is: whether a reasonable man, inno-

cent of any crime, would reasonably believe he was ‘in

custody were he in the defendant’s position. The ap-

plication of this rule does not require inquiry into the

private thoughts of the questioner, a as long as -these

thoughts remain private and are not communicated to

the suspect. In its reliance upon ithe I.N.S. agent’s “direc-

tion” in asking for the alien registration card, the court

below departed from the better rule. Its decision ought

“to be reversed and this Court should make elear what

6. This rule allows for what may be termed a deliberate

non-custodial. interrogation. This is a clearly non-custodial

interview conducted with an individual who is known or

suspected of having committed a crime. The purpose of

the interview is to sécure damaging evidence. As long as

‘the objective circumstances of such an interview are mani-

festly non-custodial the réquirements of Miranda should not

apply. ;

In this copnection it is worthwhile to consider the words

of Chief Justice Weintrawh of New Jersey dealing with a

Miranda problem:

“There is no right to escape detection. There is no

right to commit a perfect crime or to an equal oppor-

tunity to that end. The Constitution is not at all of-

‘fended when a guilty man stubs his toe. On the con-

trary, it is decent to hope that he will. Nor is it dirty

business to use evidence a defendant himself may fur-

nish in the detectional stage. ... As to the culprit

who reveais his guilt unwittingly with no intent to

shed. his inner burden, it is no more unfair to use the

evidence he thereby reveals than it is to turn against -

him clues at: the scene of the crime which a brighter,

better informed or more gifted criminal would not have

left... . It is consonant with good morals and the Con-

stitution to exploit a criminal’s ignorance or stupidity

in the detectional process.” State v. McKnight, o2 N.S.

35, 52-53, 243 A. 2d 240 ame

was implicit in Miranda, that the existence of focus is

not the proper test for determining when Miranda is to

be applied. | :

CONCLUSION

_ For the foregoing reasons, the State of Illinois as-

amicus curiae requests that the decision of the United

States Court of Appeals for the Seventh Circuit be re-

versed. .

Respectfully submitted,

Wituram J. Scort, °

Attorney General, “

State of Llinois,

Joey M. Frau, - ;

First Assistant Attorney General,

JAMES B. ZaGEL,

Assistant Attorney General,

188 West Randolph Street, Suite 2200,

Chicago, linois 60601 (312-793-2570),

Attorneys for the State of Illinois |

as Amicus Curiae.

JAYNE A. Carr, |

Assistant Attorney General,

Of Counsel.

_ Ronald Lev, a senior student at Northwestern University

School of Law, Chicago, Lllinois, assisted in the research

and preparation of the instant. Brief.

APPENDIX

AN ANALYSIS OF REPORTED DECISIONS

ON THE ISSUE OF “CUSTODY” UNDER

MIRANDA V. ARIZONA* °

~~ :

* ” PO SN AA ERR RNG ATS Saw Ba on a ea me

*This analysis is a slightly revised version of one por- :

tion of “Confessions and Interrogations After Miranda”, a

a monograph published by the National District Attor- ’

neys Association. The original monograph dealt with all 5

of the issues arising under Miranda and is exhaustive

with respect to all decisions reported prior to August 1,

1970. The portion reprinted here appeared . under the

heading “Issues in Miranda: Is it Custodial?” The author.

of the. monograph, who has signed this brief’ as well, 4

has revised the materials to include decisions reported -

prior to March 1, 1971. Citations do not include denials

of certiorari.

a PTE AE

I. The Place of Interrogation ................ 21°

A, Police Stations and Police vehicles .... 21

B. Jails ....... rey pxeepeeg es somes beer gers 24

C. Prosecution Offices ............ee0e eee 25

Ws MOMGS si ncuseeeaus eles ened et eases ren 26

E. Place of Business ..............5. ee we _ 29

F. Stores and. Places of Public Accomoda-

tions ....... ae es seas dee ewaee faeeeeees OU

G. Government Offices ... wibewiasuvees ; «Sl

H. Hospitals ...........cceeeeeeeeee. eee 32

I. Automohiles ........... 00.0.0 cee eee eee 33

J. Crime Scenes ..............08. aeeeeeses 34

‘K. Street encounters ........0.0.eeeeeeeeee 39

TI.

VI.

TABLE OF CONTENTS

The Time of Day. the Interrogation Occurs... 41

The Persons Present at the Interrogation .... 41

The Indicia of Formal Arrest .............. 4%

A. Physical Restraint ................04. .. 48

B. Other Restraint ............... 202.0005. 44

C. The Use of Weapons ..............000- 45

D. Searches and Booking Procedures: .....: 45

E. Statements and Demeanor of Officers .... 46

The Length.and Form of Questions ........ 49

The Summoning of Police and Initiation of

Interviews ......... pAeteseeeseveeseaeeees 52

XII.

- 20

The Lack of Arrest After the Interview. .°.-.

. Statements Constituting the Crime Tere ane

Statements Constituting the Res Gestae ....

Statements to Undercover Agents or Informers

. Statements After Traffic Stops

Statements During the Course of Stop and

Frisk ......

oer ee ee eee eevee

oer eevee eee eee ee ee © © © ee we we Oe

A. General Stop and Frisk ................

B. Questions Asked in the Interest of Self-

protection

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The Effect of Particular Circumstances Upon

The Determination of “Custody”

-T THE PLACE OF INTERROGATION

The experience of the Courts subsequent ta Miranda

has shown that the place of interrogation is a vital factor

in determining custody. It is not, however, a conclusive |

factor.

In the sections that follow the analysis is based largely

on the location of the interrogation. It must not be for-

gotten, however, that the actual physical circumstances

and familiarity of the room where the interrogation takes

place is also significant. See United States v. Hall, 421 F.

2d 540 (2nd Cir. 1969); United States v. Lackey, 413 F.

9d 655 (7th Cir. 1969) (small room); United States v.

Gower, 271 F. Supp. 655 (M.D. Pa. 1967); People v.

Bryant, 231 N.E. 2d 4 (Ill. App. 1967) (closed room); -

Gaudio v. State, 230 A. 2d 700 (Md. App. 1967); State

v. Seefeldt, 242 A. 2d 322 (N.J. 1968). (law library in

prosecutor’s office); State vy. Douglas, 235 So. 94 563 (La.

1970); Shedrick v. State, 271 A. 2d 773 (Md. App. 1970)

(small room); Underwood v. State, S.W. 2d ——

(Tenn, App. 1970) (elosed room). — +

| Ps Police Stations and Police Vehicles—In all four

cases decided under Miranda the suspect was questioned

in a police station after arrest. Nevertheless, it is clear

that interrogation inside what one Court has called

“buildings housing law enforcement personnel” (Evans v.

United States, 377 F. 2d 535 (Sth Cir. 1967) is not neces-

sarily custodial. There have been numerous cases in

which the presence of a suspect at a police station was

clearly non-custodial. |

In Hicks v. United States, 382 F. 2d 158 (D.C. Cir. ©

1967) it was held that statements given in response to.

interrogation at police headquarters were not: custodial

when defendant voluntarily went to headquarters upon

request. Accord: United States v. Knight, 261 IF. Supps®*

843 (E.D. Pa. 1966) (Uniformed Air Force investigator

asked defendant to come to his office to answer questions

about mail theft for which defendant was suspected.) ;

United States vy. Appell, 259 F. Supp. 156 (D. Mass. 1966).

(Postal inspector eaught defendant in the act and asked |

him to come to his office. ) |

Under proper circumstances Courts ave accepted tiie

proposition that someone can legitimately be said’ to have

been invited to a police station; United States v. Tobin,

429 F. 2d 1261 (8th Cir. 1970) (told he was free to leave);

Thiémpson v. United States, 389-4. 2d 390 (9th Cir. 1967);

United States v. Cortez, 425 F. 2d 453 (6th Cir. 1970); -

United States v. Bird, 293 F. Supp. 1265 (Mont:~1968) ;

People y. Richards, 256 N.E. 2d 475 (Ill. App. 1970); Me-

Fadden v. State, 231 A. 2d 910 (Md. App. 1967); Com-

monwealth v. Fisher, 238 N.E. 2d 525 (Mass. 1968) (invi-

tation by phone); disapproved in Fisher y. Seafati, 314

F. Supp. 929 (D. Miss. 1970) (reliance on purpose of

officers to elicit admissions); Jones v. State, 442 S.W. 2d

698 (‘Fexas 1969); State v. Bower, 440 P. 2d 167 (Wash.

1968); State v. Miller, 151: N.W. od 157 (Wis. 1967); See

United States v. Freije, 408 F. 2d 100 (1st Cir. 1969) (Of:

ficer told defendant he would meet with him wherever

defendant preferred); Contra: Commonwealth v. Banks,

239 A. 2d 416 (Pa. 1968); Commonwealth v. Brown, 247.

A. 2d 802 (Penn. App. 1968); State v. Dillon, 471 P. 2d

903 (Idaho 1970).

In addition to these kinds of eases the Courts have

held police station interrogation to be non-custodial when

23.

the person questioned is present as a witness. Clark v.

United States, 400 F. 2d 83 (9th Cir. 1968) (two drivers

in an accident, both brought into station for report);

State v. Williams, 235 A. 2d 684 (N.J. App. 1967) aff'd.

255 A. 2d 817 (N.J. 1968) (several persons brought in for

routine inquiry: &tatement also volunteered); People v.

Yukl, 256 N.E. 2d 172 (N.Y. 1969) (family and friends of

. deceased); State v. Cole, 448 P. 2d 523 (Ore. 1968) (wit-

ness in protective custody); People v. Pugliese, 260 N.E.

2d 499 (N.Y. 1970) (complaining witness). |

There are also cases in which the defendant walks into

the station essentially on his own initiative. In People v.

Hill, 452 P. 2d 329 (Cal. 1969) the defendant. called the

police station and volunteered .some information. concern-

ing a crime, he then offered to and did come to the police

station and gave a statement; the questioning was held to

be non-custodial. See also People v. Petersen, 59 Cal. Rptr.

694 (Cal. App. 1967) (a defendant walked into station to

inquire about release of his car); Tollev v. Page, 436 P. 2d

2492 (Okla. 1968). |

Of course, there are numerous eases holding that under

the circumstances the presence of a suspect at the police

station must be considered custodial. United States v.

Pierce, 397 F. 2d 128 (4th Cir. 1968) (defendant told over

phone he would have to come to the station); United

States vy. Harrison, 265 F. Supp. 660 (S.D.N.Y. 1967);

- People v. Fioritto, 441 P. 2d 625 (Cal. 1968); People v.

White, 446 P. 2d 993 (Cal. 1968) (defendant was invited

but was the subject of investigation and of: accusatory

inquiries); People v. Allison, 57 Cal. Rptr. 635 (Cal. App.

1967) (custody because of focus); People v. Ellingsen,

65 Cal. Rptr. 744 (Cal. App. 1968); People v. Connor, 75

Cal. Rptr. 405 (Cal. App. 1969) (Arrest after defendant

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walked in); People v. Bryant, 231 N.E. 2d 4 (IIL. App.

1967) (focus on defendant plus questioning in a closed

room); State v. Phinis, 403 P. 2d 251 (Kan. 1967); Mulli-

-gan v. State, 271 A. 2d 385 (Md. App. 1970) (defendant

questioned in a police car on the way to the police sta-

tion); Commonwealth v. Bennett, 264 A. 2d 706 (Pa. 1970)

(defendant picked up by police car and taken to station

for polygraph); Cf. Pemberton v. Peyton, 288 F. Supp.

920 (E.D. Va. 1968) (defendant driven 65 miles for poly-

graph test, then interrogated\ without giving test):

Questioning in police vehicles is also common and w where

the presence of .the person interrogated is clearly a re-

sult of invitation the questioning has been non-custodial.

State v. Caha, 165 N.W. 2d 362 (Neb. 1969); State ,v.

Travis, 441 P. 2d 597 (Ore. 1968). Such questioning has

also been frequently characterized as essentially cus-

todial under rather particular fact situations. State v.

Saunders, 435 P. 2d 39 (Ariz. 1969);-Myers v. State, 240

A. 2d 288 (Md. App. 1968); Duckett v. State, 240 A. 2d

332 (Md. App. 1968).

B. Jails—In Mathis v. United States, 391 U.S. 1 (1968)

the Court, by a vote of 5-3, reversed the Fifth Circuit

and held that one who was incarcerated in a penitentiary

for one offense was in custody for purposes of interroga-

tion condueted by T.R.S. agents with respect to another

offense.

The holding in Mathis. was reached by many courts

prior to the Supreme Court decision and has been rigor-

ously followed. United States v. Redfield, 402 F..2d 454

(4th Cir. 1968); United States v. Kucinich, 404 F. 24 262

(6th Cir. 1968); Seagroves v. State, 211 So. 2d 486 (Ala.

1968); People v. McFall, 66 Cal. Rptr. 277 (Cal. App.

1968); People v. Woodberry, 71 Cal. Rptr. 167 (Cal, App.

1968); Young v. State, 234 So..2d 341 (Fla. 1970); Hunt

v. State, 234 A. 2d 785 (Md: App. 1967); People v. Mal-

lory, 240 N.E. 2d 37 (N.Y. 1968); State v. McDaniel, 158

S.E. 2d 874 (N.C. 1968); Commonwealth v. Simala, 252 A.

‘2d 575. (Pa. 1969). ©

Indeed the genéral rule is that if the suspect is in jail

he is in custody for purposes of any interrogation. See

People v. Varnum, 427 P. 2d 772 (Cal. 1967); People v.

Bolinski, 67 Cal. Rptr. 347 (Cal. App. 1968); Common-

wealth v. Eperjesi, 224°A. 2d 216 (Pa. 1966); Dean v.

Commonwealth, 166 S,E. 2d 288 (Va. 1969).

If there is exception to the general rule, it arises in .

cases when the Court finds there was no “interrogation”

of a prisoner. See People v. Morse, 452 P. 2d 607 (Cal.

1969) and cases collected under Point V.*

C. Prosecution Offices—In Commonwealth v. O’Toole,

223 N.E. 2d 87 (Mass. 1967) aff’d. on habeas corpus sub

nom O’Toole v. Seafati, 386 F. 2d 168 (1st Cir. 1968) the’

defendant was the City Manager of Revere, Massachu-

_ Setts.” He was the principal suspect in a rather large

series of misappropriations of city funds. Defendant was

aware of this: fact. He was asked to come to the Office

of the District Attorney. The Assistant District Attor-

ney asked for an explanation of certain records and dis-

bursements. The defendant’s explanations were used

against him at his trial. The Court held that the failure

of the prosecutor to warn O’Toole of his rights was irrel-—

evant. O’Toole was not in custody in the prosecutor’s —

office nor was he brought there under arrest. Under :

these circumstances the interrogation was held to be non-

custodial under Miranda.

* Point V in the original “monograph deals with the

nature and application of the concept of “interrogation.”

_—

The courts have regarded -interrogations in prosecue

tor’s offices with a fair degree of willingness to find them

non-custodial, State v. Seefeldt, 242 A. 2d 322 (NJ.

1968) ; Commonwealth v. Feldman, 248 A. 2d 1.(Pa. 1968).

See also United States v. Jackson, 390° ¥. 2d°317 (2nd

Cir. 1968) (Defense counsel present) People v. Arnold,

426 P. 2d 515 (Cal. 1967).

Dz Homes—Ordinarily ‘interrogation in a_ suspect’s

home is not custodial but this principle is not absolute.

In Orozeo v. Texas, 394 U.S. 324 (1969) a suspect was

questioned at 4+ a.m. in-his bedroom by four officers, one

of whom testified that the suspect was under arrest.

The Court held that the suspect was the subject of cus-

todial interrogation even though the questioning was

brief and took place in his own bedroom. The key fac-

tors apparently were the time of the interrogation (at

4 am. and after the officers were told defendant was

asleep),the number of officers and -the evidence of formal

arrest (though this is unclear.) |

Most cases of interrogation at a home involve less

severe circumstances and generally it is held that ques-

tioning a suspect in his own home without arrest is not

custodial interrogation. United States v. Agy, 374 F. 2d -

94 (6th Cir. 1967); United States v. Hicks, 382 F. 2d 158

(D.C. Cir. 1967). (Police questioned defendant ‘in her

apartment.); United States v. Kubik, 266 F. Supp. 501

(S.D. Iowa 1967). (Defendant questioned several times

at his own home); United States v. Essex, 275 F. Supp.

393 (E.D. Tenn. 1967). (Defendant questioned in her

home—no warrant or charge pending); People v. Allen,

281 °N.Y.S. 2d 602 (App. Div. 1967), (Defendant ques-

tioned at home in the presence of family by officers who

intended to arrest him after the interview was over);

State v. Meunier, 224 A. 2d 922 (Vt. 1966). (Officer

came to home of defendant to question him about a pos-

sible speeding violation}; State v. Noriega, 433 P. 2d 281

(Ariz. App. 1967). . (Police went to defendant’s home

after he was identified as a#*burglar and interrogated him ~

there with his family present). People v. Roy,,,.260 N.E.

2d 5 (Ill: App. 1970) (at defendant’s home after he

agreed to go to the police station—no custody; also vol-

unteered); People v. Rodney, P. 233 N.E..2d 255 (N.Y.

1967).° (Defendant was questioned in his back yard);

Schoonmaker v. State, 279 N.Y.S. 2d 481 (Sup. Ct. 1967)

(Prime suspect interviewed in her home). _

In Commonwealth v. Eperjesi, 224 A. 2d 216 (Pa. _

1966) the defendant was suspected of the death of two —

children who were found in a refrigerator. Two officers

came to her home and she volunteered to one of them

that she had shut the refrigerator door. The officer then

asked her if she knew the children were inside and she

said yes. The issue was whether warnings were re-

quired before the officers asked any questions. The Court

‘held that such questions were proper investigation. The

Court further reasoned that Miranda was meant to pro-

tect those swept from familiar surroundings into police |

custody. |

In People v. Miller, 455 P. 2d 377 (Cal. 1969) the

questioning of defendant in his front yard was held non-

custodial although the officer suspected. the defendant to

be involved in what turned out to be a homicide.

In .Virgin Islands v. Berne, 412 F. 2d 1055 (3rd Cir.

1969) officers questioned a man who they strongly sis-

pected committed rape—he was questioned at his home

and surrendered some clothes from the trunk of his car—

this was held non-custodial.

Questioning of a person at his friend’s or relative’s

home is also generally ruled non-custodial. See. Steigler

v. Superior Court, 252 A. 2d 300 (Del. 1969) (Neighbor’s

home); State v. Phinis, 430 P. 2d 251 (Kan. 1967); Duffy

v. State, 221 A. 2d 633 (Md. 1966) (Police came to arrest

defendant but before doing so questioned him in his girl-

friend’s house); People v. Rogers, 165 N.W. 2d 337 (Mich. °

App. 1968) (Grandmother’s house). United States, v.

Fish, 432 F. 2d 107 (4th Cir, 1970).

There have been a few—very few—cases in which cus-

‘todial interrogation was held to have occurred in the

suspect’s home. These cases arose. from special cireum-

stances or relied upon the existence of focus. See Wind-

sor v. United States, 389 F. 2d 530 (5th Cir. 1968) (hotel

room); Rosario ¥. Guam, 391. F. 2d 869 (9th Cir. 1968) ;

Jiminez v. State, 208 So. 2d 124 (Fla. App. 1968). (after

return from police Station); People v. Paulin, 305 N.Y.S.

2d 607 aff’d. 255 N.K. 2d 607 (N.Y. 1970) (“police domi-

nated” atmosphere) ; State v. Peters, 231 N.E. 2d 91

(Ohio App. 1967) (brought to home by, police after ar-

rest); Commonwealth v. Sites, 235 A. 2d 387 (Pa.: - 1967)

(focus plus moving suspect from presence of friends).

United States v. Bekoures, 432 F. 24 8 (9th Cir. 1970)

(close and persistent questioning). .

The overwhelming number of cases have found ques-

tioning at the suspect’s home to be non-custodial. In

" _ addition to the cases already cited, see: United States v.

Hall, 421 F. 2d 540 (2nd: Cir. 1969); United States v.

Mackiewicz, 401 F. 2d 219 (2nd Cir. 1968) ; United States

v. Bagdasian, 398 ‘F. 2d 971 (4th Cir. 1968) ; Evans v.

- United States, 377 F. 2d 535. (5th Cir. 1967); Mengndez

‘v. United States, 393 F. 24 312 (dt att Cir. 1968); McMillan

v. United States, 399 F. 2d 478: “oth Cir. wae): Thomp-

O43 2 -

F TRS Pe

son v. United States, 382 F. 2d 390 (9th Cir. 1967); > *

United States v. Littlepage, 435 F. 2d 498 (5th,Cir. 1970); >

United States v. Essex, 275 F. Supp. 393 (E.D. Tenn.

1968) rev’d.-on other grounds 407 F. 2d: 214; United

States v. Manni, 270 F. Supp. 103 (D. Mass. 1967) a

391 F. 2d 922; State v. Hunt, 447 P. 24.896 (Ariz, App.

(1968); Stout v. State, 426 S.W. 24 800 (Ark. 1968);

People v. Butterfield, 65 Cal. Rptr. 765 (Cal. App. 1968);

Jackson. v. State, 259 A. 2d 587 (MefApp. 1969); Com-

monwealth v. Cutler, 249 NUE. 2d. 632 (Mass. 1969); Peo-

ple vy. Brosnan, 299 N.Y.S. 2d 263 (N.Y. App~ 1969);

State v. Williams, 168 S.E. 2d 217 (N.C. App. 1969);

Commonwealth vy. Barclay, 240 A. 2d 839 (Pa. App.

1968); Bendaw v. State, 429 S.W. 2d 506 (Texas 1968) ;

Jones v. State, 442 S.W. 2d 698 (Texas 1969); State v.

Bower, 440 P. 2d 167-(Wash. 1968).

E. Places of Business—Interrogation of a suspect in

his place of buSiness is usually non-custodial. As in the |

case of homes, the place of business represents a familiar

surrounding. See United States v. Berkowitz,'429 F. 2d

921 (1st Cir. 1970) (defendant questioned in his own store,

ostensibly cooperating with police); United States v.

Gallagher, 430 F. 2d 1222 (7th Cir. 1970) (suspect’s law

office); United States v. Fayette, 388 F. 2d 728 (2nd Cir.

1968); United States -v. Webb, 398 F. 2d 553 (4th Cir.

~ 1968) (1.C.C. agent who had ‘no power to arrest); Archer

v. United States; 393 F. 2d 124 (5th Cir. 1968); White v.

United States, 395 F. 2d 170 (8th Cir. 1968); United

States v. Dudgeon, 279 F. Supp. 300 (D. Mass. 1967)

(F.D.A. inspector who had‘ no power to arrest); United

‘States v. Delamarra, 275 F. Supp. 1 (D.C. 1967); United _,~

States v. Roth, 285 F. Supp. 364 (S.D. N.Y. 1968); Unite.

States v. Morton’ Provision Co., 294 F. Supp. 285 (Del.

1968). See also United States -v. Prudden, 424 F. 2d

1021 (5th Cir. 1970). / |

Several state courts have reached similar results. See

State v. Hall, 468 P. 2d 598 (Ariz. App. 1970); State v.

Carpenter, 435 P. 2d 789 (Idaho 1968); People v. Robin-

son, 177 N.W. 2d 234 (Mich. App. 1970); State v. Boykin,

172 N.W. 2d 754 (Minn. 1969); State v. Lipker, 241 N.E.

2d 171 (Ohio App. 1968); Tate v. State, 413 SW. 2d 366

(Tenn. 1967); Brown v. State, 4837 S.W. 2d 928 (Texas

1968); Robinson y. State, 441 S.W. 2d 855 (Texas 1969).

State v. MeLam, 478 P. 2d 570 (NUM. App. 1970).

In one interesting case the Court pointed out, that when

a policeman is being questioned—his police station is his

place of business. People v. Williams, 290 N.Y.S. 24 321

(Sup. Ct. 1968).

The making of an actual arrest, however, renders the

interrogation custodial even if it is in the suspect’s place

of business. See People v. Ryff. 284 N.Y.S. 2d 953 (N.Y.

App. 1967). |

F. Stores and Places of Public Accommodations—The

rationale of familiar surroundings applicable to ques-

tioning in homes and offices does not Invariably apply

when the interrogation, occurs in a restaurant or bar.

However, the usual view in such cases is that the interro-

gation is not custodial. This result is due to the fact

that the suspect is, if not ina completely familiar place,

at least ina place of his own choosing. Another signifi-

cant factor is the lack of isolation from the éutside world

and the distinet absence of police saben ae

See United States v. Charpentier, F. (10th

Cir, 1971) (Salvation Army Building octe. Lueas_ v.

United States, 408 F. 2d 835 (9th Cir.- 19 ‘Y) (night

club); United States v. Messina, 388 F. 2d 393 (2nd

Cir. 1968) (park bench and restaurant); Perry v. United

States, 230 A. 2d 721 (D.C. 1967) (Hallway of a hotel);

Williams v. State, 232 So. 2d 366 (Miss. 1970) (cafe); -

State v. Zachmeier, 441 P. 2d 737 (Mont. 1968) (tavern).

In People v. Beasley, 58 Cal. Rptr. 485 (Cal. App. 1967)

two police officers questioned the suspect in a pawnshop

after he pawned goods the officers believed were stolen.

The questioning was held nou-custodial as waé a similar

interrogation in People v. Hazel, 60 Cal. Rptr. 437 (Cal.

App. 1967). But see People v. Orf, 472 P. 2d 123 (Colo.

1970) (Tavern—opinion Felies on existence, of focus).

G. Government Offices—The questioning of persons at

government offices presents a situation in which the

rationale of familiar surroundings is inapplicable (except

for the employees at the office). Nevertheless, the Courts

have usually construed such ‘questioning as non-custo-

dial. Support for these rulings is found in the faet that

the offices in question do not create a “police dominated”

atmosphere. Often the personnel asking the questions

have no power of arrest and the questions asked are few.

Further, the decided cases deal mostly with draft resis-

ters and the Courts probably tend to view the statements

of such persons as volunteered in ‘spirit, if not in fact.

See United States v. Holmes, 387 Fe 2d 781 (7th Cir.

1967); Fults v. United States, 395 I. 2d 852 (10th Cir.

1968); Noland v. United States, 380 F. 2d 1016 (10th Cir.

1967); United States v. Kroll, 402.F. 2d 221 (3rd Cir.

1968). See United States v. Hamlin, 432 F. 2d 905 (Sth

Cir. 1970) (the defendant appeared uninvited at postal

inspector’s office to discuss his new brochure, the inspec- °

tor then discussed inquiries his office had received con- .

cerning the bro¢ghure, thereafter the defendant met- with

the postal inspector on several occasions—Miranda was

held inapplicable to any of the conversations).

s ne ak oe SMM Ok. nme gin

nr Ty PaCS Maneatis 5

NF Se Pit

H. Hospitals—Questioning of a suspect who is con-

fined in a hospital as a patient but who is not under-

arrest is not custodial interrogation. State v. District

Court, 482 P. 2d 93 (Mont. 1967). (Sheriff questioned

prime suspect in murder who was confined as a private

patient in a hospital); People vy. Gilbert, 154 N.W. 2d 800

~ (Mich. 1967). (Police in hospital questioned a defendant

walking around the emergency room who was involved

in an auto accident and whose breath smelled of liquor).

In State v. Zueconi, 235 A. 2d 198 (N.J. 1967) the de-

fendant was involved in a fatal auto accident and the

principal evidence against: him were his admissions on

two separate occasions to an interrogating State Trooper —

that he was driving the car. The Court said, “In the

present case defendant never Was in the custody of the

police not was he deprived of his freedom by authorities.

The questioning here took plave in defendant’s hospital

room and at his home, surroundings totally lacking in

the compelling atmosphere inherent in the process of in-

eustody interrogation.” 235 A. 2d at. 194. See also:

Lamb v. United States, 414 F. 2d 250 (9th Cir. 1969);

State v. Sandoval, 452 P. 2d 350 (Idaho 1969) (definite

- Suspect questioned at shospital); Tillery v. State, 238 A.

Yd 125 (Mad. App. 1968) (Person interviewed was thought

to be a shooting victim); State v. Mitchell, 163 NW: 2d

S10 (Minn. 1968) (Suspect interviewed at hospital about

possible homicide after death of wife in house fire);

State v. Rudd, 230 A. 2d 129 (N.J. 1967); State v. Lopez,

442 P. 2d 594 (NLM. 1968): State v. Webb, 469 P. 2d 153

(N.M. App. 1970); People v. Phinney, 239 N.E. 2d 515

(N.Y. 1968) (single question): Commonwealth y. Bord-

ner, 247° A. 2d 612 (Pa. 1968) (routine investigation) ;.

Commonwealth v. Frye, 252 A. 2d 580 (Pa. 1969) (sus-

pect visited victim at hospital and claimed to be victim’s

brother) ; State v. Kelter, 426 P. 2d 500 (Wash. 1967).

The cases dealing with ‘hospital interviews have relied

on the routine nature of the inquiry and.on the lack of

objective indicia of custody (See Point IV). The physi-

eal condition and drug intake of the suspect are also

considered, though logieally ‘these factors have nothing

to do with Miranda. The existence of pain and drug in-

‘take affects voluntariness and Wwaiver—they really have

nothing to do with the determination of custody. .

Hospital interviews,“ however, have often been held

custodial in- nature. The citations are: Howard v. State,

217 So. 2d 548 (Ala. App. 1969); Robinson vy. State, 224

So. 2d 675 (Ala. App.'1969); People v. Vaiza, 52 Cal.

Rptr. 733 (Cal. App. 1966) (intent to incriminate sus-

pect); People v. Braun, 241 N.E. 2d 25 (Ill. App. 1968)

(suspect informed that officers had a ticket for him) ;

Thomas v. State, 238-A. 2d 558 (Md. App. 1968); State

- V. Evans, 439 S.W. 2d°170 (Mo. 1969); State v. Ross, 157

N.W. 2d 860 (Neb. 1968) (suspect in pain and under se-

dation); Shedrick vy. State, 271 A. 2d 733 (Md. App.

1970) (two officers with suspect in small room when sus-

pect knew of the serious condition of the victim); People

v. Tanner, 295 N.Y.S. 2d 709 (N.Y. App. 1968) (relay

questioning); Vandegriff vy. State, 409 S.W. 2d 370 (Tenn.

1966).

I. Automobiles.

Although most eases in which a suspect is questioned

in his automobile are usually resolved on the theory that

a traffic stop does not constitute custody (Section I, K.)—

there are some cases emphasizing the fact that a suspect

in his own ear is in familiar surroundings. Under either |

rationale these cases generally find a lack of custody. See

Chavez-Martinez v. Wnited States, 407 F. 2d 535 (9th

CORROL aebee RO haw REE. a Lo ae ee CVE SpE OE wees

Cir. 1969); Williams v. United States, 381 F. 2d 20 (9th

Cir. 1967) (defendant stopped his car himself at a border

station); United States v. Montos, 421 F. 2d 215 (Sth Cir.

1970); United States vy. Littlejohn, 260 KF. Supp. 278

(S.D.N.Y, 1966); United States y. Montez-Hernandez, 291

F. Supp. 712 (S.D. Cal. 1968); State v. Tellez, 431 P. 2d

691 (Ariz. App. 1967); State v. Thomas, 454 P. 2d 153

(Ariz. 1969); People v. Allison, 57 Cal. Rptr. 685 (Cal.

App. 1967); People v. Stewart, 73 Cal. Rptr. 484 (Cal.

App. 1968); State v. Rodgers, 207 So. 2d 755 (La. 1968) ;

Jones v. State, 284 A. 2d 900 (Md. App. 1967); Cornish

V. State, 2ol “AL 2d 23 (Mad. App. 1969) (the defendant

stopped his car on his own volition); People y. Jolson,

“71 NYS. 2d 814 (Sup. Ct. 1966); State v. Miller, 151

N.W. 2d 157 (Wis. 1967) (The defendant was driving

dus car to the police station with a policeman as pas-

senger). Contra: People v. MeFall, 66° Cal. ptr. 277 (Cal.

App. 1968); People v. Ceecone, 67 Cal. Rptr. 499 (Cal.

App. 1968). .

The situation in which a suspect is questioned in his

own car is also commonly dealt with under the rubric of

on-the-scene questioning (Section I, Kk).

J. Crime Scenes. In Miranda the Court said that its

decision was “not intended to hamper the traditional

function of police officers ‘in investigating crime... . Gen-

eral on-the-scene questioning as to fats surrounding a

crime or other general questioning of citizens in the fact

finding process is not atfected Dy our holding. It is an

act of responsible citizenship for individuals to give

whatever information they may have to aid in law en-

forcement. In such situations the compelling atmosphere

inherent in the process of in-custody interrogation is not

necessarily present.” 384 U.S. at 477-78.

He BBN ee ES ne Ee OER Sere ME

The scope of this language has been the subject of

‘many decisions. : .

Generally speaking, questioning of a suspect prior to

arrest near the scene of a crime is not custodial interro-

gation. United States v. Davis, 259 F. Supp. 496 (D.

Mass. 1969) (Wyszanski, J.) (Customs officers find nar-

cotics and questioned’ defendant about them without

warnings); United States vy. Small, 297 F. Supp. 582 (D.

Mass. 1969) (Questioning of suspect at a locker where

marijuana was stored); Laury v. State, 260 A. 2d 907

(Del. 1969) (accosting suspect at robbery scene); Nevels

v. State, 216 So. 2d 429 (Miss, 1968) (Questions at the

end of a chase and search); People v. Schhwartz, 292

N.Y.S. 2d-518 (N.Y. App. 1968) (Two questions of per- .

‘son leaving scene of reported assault); State v. Gray,

100 S.K. 2d 1 (N.C. 1966) (Suspect voluntarily went to

home of victim where larceny occurred); State v. Shedd,

161 S.E. 2d 650. (N.C. 1968) (Burglar caught on premises ;

questioning after arrest); New vy. State, 259 N.E. 2d 696

(Ind. 1970). See also State v. Brown, 176 N.W. 2d 180

(Iowa 1970); State v. Dubany, 167 N.W. 2d ‘556 (Neb.

1969); State v. Carr, 154 N.W. 2d 526 (Neb. 1967); State

. V. Watts, 152 S.K. 2d 684 (S.C. 1967); Sutton vy. State,

419 SW. 2d 857 (Texas 1967); State v. Largo, 473 P. 2d

845 (Utah 1970) (Questioning of sixty boys residing, in

a dormitory concerning invasion of girl’s dormitory and

rape of one of the girls) Cf. State y. Phinis, 430 P. 2d

251 (Kans. 1967); Thompson vy, State, 235 So. 2d 354

(Fla. App. 1970). |

Several cases have reached the same conelusion with

respect to questioning at the scene of an automobile ac-

cident. See State v. Lief, 234 A. 2d 124 (Conn. Cir. 1967);

State vy. Kinn, 178 N.W. 2d 88s (Minn. 1970); State

q. - e 36

“vy. Beck, 268 A. 2d 416 (Conn. App. 1970); People v.

Jendrzejak, 240° N.K. 2d 239 (Ill. App. 1968); People

_v. Routt, 241 N.E. 2d 206 (IIL App. 1968); People v.

Morgan, 180 N.W. 2d 508 (Mich. App. ‘1970); State v.

Kinn, 178 N.W. 2d 888 (Minn. 1970); Ford vy. State, 226

So. 2d 378 (Miss. 1969); People v. Alexander, 293 N.Y.S.

2d 138 (Co. Ct. 1968); State v. Tlayes, 161 SE. 2d 185

(N.C. 1968); State v. Taylor, 437 P. 2d 853 (Ore. 1968);

State v. Desjardin, 272 A. 2d 599 (N.II. 1970).

The most commonly reported instance of on-the-scene

questioning involves homicides.

In State v. Gosser, 236 A. 2d 377 (N.J. 1967) the de-

fendant shot his wife. He then called a friend and in a

distraught voice said that something terrible had hap-

pened and asked the friend to come over. Instead the

friend called the police who went to the house. ‘The de-

fendant opened the door. He was groggy and erying; his

pajamas and faee were crusted with blood. The. officer

askéd him what the trouble was and defendant answered

that he killed his wife."The policeman told defendant to

sit on the couch and «remain: there. The officer called for

assistance. A sergeant arrived and again asked defend-

ant what happened. The defendant answered that he

~ shot his wife. The sergeant asked where she was. The

defendant replied that she was upstairs. The officers and

the defendant went upstairs where defendant volunteered

some further information. Then they came downstairs

where defendant was arrested. The Court said that these

statements were the result of general on-the-scene ques-

tioning prior to arrest and were not open to challenge by

defendant. ,

In State v. Oxentine, 154.S.E. 2d 529 (N.C. 1967) the

defendant shot the victim in the defendant’s home. The

police arrived and asked what happened. The defendant

replied that he shot him. The Court held that the defend-

ant was not in custody or deprived of his freedom and

that the questioning did not fall within the meaning and

intent of Miranda.: “We do not interpret. this important

decision to exclude statements made at the scene of an

investivation when nobody has heen arrested, detained or

charged.”

In Tate v. State, 413 S.W. 2d 366 (Tenn. 1967) the

defendant shot his boss at the office and his defense at

trial was self-defense. Officers testified that they arrived

. on the scene and asked who did the shooting. In the

presence of others defendant said that he did. The offi-

cers asked why and he said because the boss was firing

him from his job. This questioning was held to be with-

in the scope of general investigation.

In Britton v. State, 170 N.W. 2d 785 (Wis. 1969) an

officer summoned to ‘the scene of a shooting was told that

the assailant fled into a gangway. The officer went into

the gangway and asked the man he saw there if he was

involved. The reply was, “Yeh, I shot him.” Miranda

was held inapplicable. | .

Similar holdings.are found in: Truex y. State, 210 So.

2d 424 (Ala. 1968) (“What happened?”); Ison v. State,

200 Sd. 2d 511 (Ala. 1967) (“Did -you shoot him?”);

Stout v. State, 426 S.W. 2d 800 (Ark. 1968). (Officers

summoned about a dead body); People v. Stewart, 59

Cal. Rptr. 71 (Cal. App. 1967); People v. Morse, 452 P.

2d 607 (Cal. 1969) (At jail where one inmate kills an-

other); Green v. State. 157 S.E. 2d 257 (Ga. 1967) (At

scene of shooting defendant surrenders a revolver and

then admits shooting); People v. Bey, 259 N.E. 2d 800 -

(Ill. 1970); Carrington v. State, 230 A. 2d 112 (Md. App.

1967); Weissinger y. State, 218 So. 2d 432 (Miss. 1969)

(“Where is the gun?”); People v. Williford, 311 N.Y.S.

2d 461 (N.Y. App. 1970); State y. Meadows, 158 S.E. 2d

638 (N.C. 1968); (“What happened?”) Commonwealth v.

Lopinson, 234 A. 2d 522 (Pa. 1967) rev’d on other

* grounds 392 U.S. 647; Ballard v. State, 454 S.W. 2d 193

(Tenn. App. 1969) ; Bell v. State, 442 S.W. @a 716 (Texas

1969) (“What happened 2”) ; State vy. Nuckols, 459 P, 2d

979 (Wash. App. 1969); Cf. State v. Tarrance, 211 So.

2d 304 (La. 1968). :

The crime scene situation as well as several others,

L.e., street encounters, traffic stops, and stop and frisk us-

ually give rise to thee problem ot the officer who will

testify that if the suspect had tried to leave, the officer

would have stopped him. This should not create a cus-

todial situation as long as such an intent to stop is un-

voiced. However, it seems to me that even if the officer

at the scene of a crime askx one or more persons to re-

main at the scene—this should not be thought to estab-

lish ‘custody. The Court in Miranda referred to depriva-

tion “of freedom of action IN any significant way” and

declared that its opinion did not apply to “general, on-

the-scene interviews and that “it is an act of responsible

citizenship” for persons to give information to the. police.

It can be persuasively argued that the Court envisioned

the brief retention of all potential witnesses at the scene

of a crime and excluded this kind of interviewing from

Miranda. An ordinary innocent person directed. by an:

officer not to leave the scene of a crime would: not con-

sider himself in custody: or under arrest and there is no

reason for a court to do so. See in this connection: Arnold

v, United States, 382 F. 2d 4 (9th Cir. 1967); People vy.

Alexander, 293 N.Y.S. 2d 138 (Co. Ct. 1968). State vy.

Rogers, 236 So. 24 715 (La. 1970); People v. Morgan,

180 N.W. 2d 508 (Mich. App. 1970).

—e =

K. Street Encounters—‘On the Scene”

Another form of general on the séene questioning oe-

eurs when an officer makes inquiries of persons on the

public ways under suspicious circumstances. See Jennings

v. United States, 391 F. 2d 512 (5th Cir. 1968) (While

an officer was examining suspect car, defendant came up

to car and made damaging admfsions in ensuing con-

versation); United States vy. Gibson, 392° F. 2d 373 (4th

Cir. 1968) (brief Inquiries of suspect on sidewalk); Arn-

old v. United States, 382 F. 2d 4 (9th Cir. 1968) (Suspect -

asked to step away from crowd); United States v. Agy,

374 F. 2d 94 (6th Cir. 1967): United States v. Thomas,

396 F. 2d 310 (2nd Cir. 1968) (Suspect prowling in rail-

road yard); United States y. Diaz, 427 F. 2d 636 (1st

Cir. 1970) (hitehhiker-request. for identity); United

States v. Clark, 294 F. Supp. 1108 (.D. Pa. 1968) (sus-

pect running on street, stopped by officer). Where an

officer simply finds someone he is seeking in the street

and makes inquiries this too is non-custodial, United

States v. Owens, 431 FB. 2d.349 (Sth Cir, 1970).

State courts have generally reached the same conelu-

sion as the cited federal cases: Lockridge v. Superior

Court, 80 Cal. Rptr. 223 °(Cal. App. 1969) (Person descend.

ing from telephone pole within 100 feet of store where

alarm was set off); People v. Sjosten, 68 Cal. Rptr. 832

(Cal. App. 1968); State. v. Caha, 165 N.W. 2d 362 (Neb.

1969); People v. Cartwright, 182 NW. 2d- 81] (Mich.

App. 1970) (Two persons stopped in the vicinity of a

break-in); People v. Fairley, 301 N.Y.S,-2d 1013 (N.Y.

App. 1969) (At gasoline statlon—suspect initiated conver-

sation); People v. McKie, 250 N.E. °d 36 (N.Y. 1969) {On

the street—suspect initiated conversation) ; People v.

Milligen, 245 N.E.. 2d 551 (IU. App. 1969) (person near

Sa Le a ee a PEERS

PA RI AC SRRPRIENS MN

- 40

* burglarized premises); Gaudio v: State, 230 A. 2d 700

(Md. App. 1967) (Defendant after traffie arrest was wait-

ing to post bond and standing near his’ truck when offi- -

cers asked him about smuggling’ cigarettes); Hall v.

State, 251 A. 2d 219 (Md. App. 1969); People vy. Patten,

166 N.W. 2d 284 (Mich. App. ,1968) (Officer asked sus-

pect what he was doing on a certain truck); State v.

Bradford, 434 S.W. 2d 497 (Mo. 1968) ts: ects seated

in ear in parking lot of closed establfShment at odd

hours); State v. Perry, 237 N.K. 2d 89] (Ohio 1968) (Per-

son stopped while running from %a building); State vy.

Whitney, 431 P. 2d 711 (Wash. 1967) (Suspect walking

on highway near car known to be stolen, the officers ask

if the car is his); State v. IIuson, 440 2d 192 (Wash.

1968). State v. Bosford, 467 P. 2d 352 (Wash. App.

1970). See also People vy. Kenney, 279 N.Y.S. 2d 198

(Sup. Ct. 1966); State v. Woodall, 241 N.E. 2d 755 (Ohio

C.P. 1968). | :

The basic premise underlying these decisions is that the

Officers were , confronted with suspicious circumstances

which could have been resolved with an explanation from

the person questioned. The absence of a custodial atmos-

phere is signifiéant but the investigative nature of the

encounter is foremost.

(

Of course, under certain circumstances street ‘and

scene encounters may be deemed custodial. See Allen v.

United States, 404 F. 2d 1335 (D.C. Cir. 1968); People v.

Chavira, 61 Cal. Rptr. 407 (Cal. App. 1967); State v.

Shaffner, 143 N.W. 24 458 (Wis. 1966).

Il. 7

THE TIME OF THE DAY THE

_ INTERROGATION OCCURS ;

. te

An interview conducted in a non-custodial setting dur-

ing normal business hours is more likely to be found

non-custodial than one which is conducted atean odd

hour of the night, ©

The intrusion of police in the early morning hours to

make inquiyies would, support’ a reasonable man’s belief

that he might be in custody. Seé Orozco v. Texas, 394

U.S. 324 (1969). Of course, on the scene questioning

shortly after the commission of a crime may permissibly

take place at odd hours but seeking out someone some

distance away from the scene as was done in Orozco

tends to support a finding that the interrogation was

custodial.

III.

THE PERSONS’ PRESENT AT THE

INTERROGATION

The language of Miranda evinces concern for a suspect

“cut off from the outside world” 384 U.S. at 445. It fol-

lows that the presence of friends or neutrals at an inter-

view is a fact of some relevance” See 384 U.S. at 461,

478 n. 46. -

Accordingly, several courts have considered the pres-

ence of friends as indicative of non-custody. United States

v. Owens, 431 F. 2d 349 (5th Cir. 1970). (Defendant’s

friends); Archer v. United States, 393 F. 2a 124 (Sth

ae UR RE ENN IES +

mat

¥ Eek mere’ TONE ER gett Be

= cs

. e

Cir. 1968) (Suspect’s husband); United States v. Manni,

270 F. Supp. 103 (D. Mass. 1967); aff'd. 391 F. 2d 9292

(Ist Cir. 1968) (suspect’s wife); State v. Noriega, 433 P.

2d 281 (Ariz. App. 1967) (suspect’s family); State v.

Tellez, 431 P. 2d 691 (Ariz. App. 1967) (suspect’s

friends); Stout v. State, 426 S.W..2d 800 (Ark. 1968)

(suspect’s wife); People v. Butterfield, 65 Cal. Rptr. 765

(Cal. App. 1968) (suspect’s mother); State v. Davis, 157

N.W. 2d 907 (Towa 1968) (Doctor and nurses); Jones v.

State, 234 A. 2d 900 (Md. App. 1967)’ (Suspect’s girl-

friend); McFadden v. State, 231 A. 2d 910 (Md. App.’

1967) (suspect's wife); People yv. Allen, 281 N.Y.S. 2d

602 (N.Y. App. 1967) (suspect’s family); State v. Gray,

100 S.E. 2d 1 (N.C. 1966) (suspect’s cousin); Common-

wealth v. Barclay, 240 A. 2d 839 (Pa. App. 1968) (stis-

- pect’s family); State v. Largo, 473 P. 2d 895 (Utah

1970) (school counselors). — _ |

See generally: United States v. Tall, 421 F. 2d 540 (2nd

Cir. 1969); State ex rel Lowe y. Nelson, 202 So. 2d 232

(Ila. App. 1967); Franklin v. State, 151 S.E. 24,191 (Ga.

App. 1966); People vy. togers, 165 N.W. 2d 337 (Mich.

_ App. 1968); People vy. Cerrato,: 246 N.E. 2d 50] (N.Y.

1969). But see People v. Bryant, 231 N.E. 2d 4 (Fil. App.

1967); People v. Anon, 294 N.Y.S, 2d 248 (Sup. Ct. 1968).

By the same token the deliberate removal of a suspect

from the presence of his family and friends tends to sup-

. port a finding of custody. Commonwealth vy. Sites, .235 A.

2d 387 (Pa. -1967) Cf. Pemberton v. Peyton, 288 F. Supp.

920 (E.D..Va. 1968) (driving a suspect 65 miles to give

polygraph and then interrogating him without giving the

polygraph). .

The “balance of power” may also he significant in

‘cases where the sheer number of police is inferential of

police dominated atmosphere. See Orozeo v. Texas, 394

US. 324 (1969); Fisher v. Seafati, 314 F. Supp. 929 (D.

Mass. 1970) (Three. police officers with suspect in one

room); Shedrick v. State, 271 A. 2d 773 (Md. App. 1970)

(two officers and one suspect In a small room); State v.

Ross, 157 N.W. 2d 860 (Neb. 1968); People v. Paulin,

809 N.Y.S. 2d 605 (Sup. Ct. 1969) aff'd. 308 N.Y.S. 2d

883 (N.Y. App. 1969) .aff'd. 255 NE. 2d (N.Y. 1969):

Underwood vy. State, S.W. 2d (Tenn. App.

1970) (Questioned alone by judge and two probation offi- |

cers). Presumably the reverse is true and the officer who

~ is significantly outnumbered by suspects or a suspect’s

friends may be found to have conducted a non-enstodial

interview. See People. vy. Robinson, 177 NAW. 2d 934

(Mich. App. 1970) (single officer). In People v. Morgan,

180 NW. 2d 508 (Mich. App. 1970) a request by an offi-

cer at the scene of an accident addressed’ to 50 to 75

. bystanders asking who was the driver was not custodial

interrogation. |

The fact that the interviewer is a uniformed policeman

does not render the interview per se custodial. State v.

Hall, 468 P. 2d 598 (Ariz. App. 1970). People v. Rodney,

P. 233 NE. 2d 255 (N.Y. 1967); State v. Meunier, 224 A.

2d 922 (Vt. 1966). But .the presence of a uniformed ofli-

cer has been considered as one circumstance supporting

a finding of custody. See People vy. Bliss, 278 N.Y.S. 2d

732 (Sup. Ct. 1967). -

IV.

THE INDICIA OF ¥ORMAL ARREST

A. Physical Restraint The Courts have generally recog-

nized the existence of physical restraint is a significant

factor in determining questions. of custody. The opinion

LEIS PRIOR PY HR st a,

ae et. ee

in Miranda recognizes the significance of physical re-

straint. See 384 U.S. at 461, 477. _

The absence of physical restraint has led several courts

to the conclusion that the defendant was not under arrest

or in custody. United States v. Fiorillo, 376 F. 2d 180

(2d Cir, 1967) (telephone conversation with suspect) ;

People v. Hill, 452. P. 2d 829 (Cal. 1969) (same); People

v. Ragen, 68 Cal. Rptr. TOO (Cal. Apps 1968) (same);

People v. Merchant, 67 Cal. Rptr. 459 (Cal. App. 1968)

(police asked questions from outside locked screen door).

People v. Cartwright, 182 N.W. 2d 811 -(Mich. App. 1970).

See United States ve Gallagher, 480 I. 2d 1222 (7th Cir.

1970) (“free to come and -go as he pleased”), But the

Jack of physical restraint does not automatically mean

non-eustody. U.S. v. Bekowtes, 482 F. 2a 8 (9th Cir.

1970). | |

The existence of physical restraint has invariably led

to a finding of custody, United States v. Averell, 296 F.

Supp. 1004 (S8.D. N.Y. 1969) (handeuffing); State v.

Saunders, 435 P. 2d 39 (Ariz. 1967) (Officer placed his

hand on suspect’s arm and led him to patrol car); State

v. Michael, 486 P. 2d 595 (Ariz. 1968) (same); People v.

“Connor, 75 Cal. Rptr. 905 (Cal. App. 1969) (handeuffing) ;

Myers vy. State, 40 A. 2d 288 (Md. App. 1968) (suspect

pulled into patrol car); People v. MeKay, 287 N.Y.S. 2d

#99 (N.Y. App. 1968) (officer wrapped arms around sus-

pect, then handeuffed him); Commonwealth v. Moody,

— 239 A. 2d 409 (Penn, 1968) (handeuffing). |

B. Other Restraint The. courts also recognize that in

certain cases restraint may be non-physical in nature but

the drawing of lines. is not simple. In People v. Gilbert,

175 N.W. 2d 547 (Mich. App. 1970) a suspect was asked

to come to a police car and there informed of an’ accusa-

tion of rape. The Court. found custody. In. Priestly v.

State, 446 P. 2d 405 (Wyo. 1968) custody was found

where the’ officer told the suspect to get into the police

ear. Formal arrest, of course, establishes custody even

without physical restraint, United States v..Droz, 427 F.

2d 636 (1st Cir. 1970). . :

On the other hand, the mere request of an officer to a

suspect to step aside does not create a custodial situation.

United States v. Arnold, 382 F. 2d 4 (9th Cir. 1967);

People v. Rodney P. 283 N.K..2d 255 (N.Y. 1967). Nor

“does a request to step outside a cate for routine ques-

tions create custody. United States v. Gibson, 392 F. 2d

373 (4th Cir. 1968). Contra, People v. Orf, 472 P. 2d 123

(Colo. 1970). .

C. The Use of Weapons Holding a gun on a_ suspect

creates a clearly custodial situation. State v. Intogna,

419 P. 2d 59 (Ariz. 1967); People v. Shivers, 233 N.E.

2d 836 (N.Y. 1967). But Cf. State v. Goudy, 479 P. 2d

800 (Hawaii 1971).

The fact that a suspect is himself armed should be

weighed strongly against a finding of custody. See Yates

v, United States, 384 F. 2d 586 (Sth Cir. 1967); Ison v. -

State, 200 So. 2d 511 (Ala. 1967). This sort of situation

is not rare. Armed felons often make damaging admis-

sions when holding off police. See People v. Tahl, 423 P.

2d 246 (Cal. 1967). And an officer who arrives at the

scene of a shooting may also find that his suspect is

armed. |

D. Searches and Booking Procedures It has been recog-

nized in the earliest cases that- the absence of finger-

printing, photographing and other hooking precedures

are indicative of the non-custodial interview. Hicks ve

United States, 382 F. 2d 158 (D.C. Cir. 1967). See People

LAME RINT LA PB OE LID Bee ty

PME NTE NODES. te.

a IST Ee LT Sots ot

OREO DD Se aE SVR” ole ers» => Lm, ee

46 .

v. Robinson, 177 N.W. 2d 234 (Mich. App. 1970). The

use of booking procedures leads to the contrary conclu-

sion. See People v. Ellingsen, 60 Cal. Rptr. 744 (Cal. App.

1968) (fingerprinting and removal of clothes); People v.

Connor, 75 Cal. Rptr. 69 (Cal. App. 1969) (booking)

Similarly, the absence of frisk or search helps.to show

absence of custody United States v. Thomas, 396 F. 2d

310 (2nd Cir. 1968). The reverse is true. United States

v. Averell, 296 F. Supp. 1004 (S.D. N.Y.-1969); Common-

wealth v. Moody, 239 A. 2d 409 (Pa. 1968).

A related problem arises when a suspect is interviewed

on prémises where the officer is executing a-‘search war-

rant. A single question to a suspect whose apartment was

being searched was held permissible in People vy. Cerrato,

246 N.E. 2d 501 (N.Y. 1969); People v. ‘Fischetti, 264

N.E. 2d 191 (Ill. 1970) (same). See also: State vy. Gumins, |

469 P. 2d 833 (Ariz. App. 1970); State vy. Porter, 443 P.

2d 360 (Kan. 1968); People v. Torres, 233 N.E. 2d 282

(N.Y. 1967) (volunteered); Sutton v. State, 419 S.W. 2d

857 (Texas 1967) (defendant arrived at house during

“search and was asked where he liv es); Brown v. State,

437 S.W. 2d°828 (Texas 1968); State v. Boykin, 172

N.W. 2d 754 (Minn. 1969) (officers serving warrant asked

‘if defendant was the owner); Amos v. State, 234 So. 2d

630 (Miss. 1970); Contra: People v. Wilsom, 74 Cal. Rptr.

131 (Cal.- App. 1968). See United States v. Bekowies, 432

F, 2d 8 (9th Cir. 1970). Where the search is illegal the

Statements ‘may be suppressed as fruits of the poisoned

tree. People v. Hendricks, 250 N.E: 2d 323 (N.Y. 1969).

E. Statements and Demeanor of Officers The officer who

tells a suspect that he is hot under arrest and is free to

leave at any time has fairly definitely established that

‘the interview is non-custodial. See Wnited States v.

Tobin, 429 F. 2d 1261 (Sth Cir. 1970); Lucas v. United

States, 408 F. 2d 835 (9th Cir. 1969); United States v.

Maglona, 414 F. 2d 642 (9th Cir. 1969); Doran v. United

_ States, 421 F. 2d 865 (9th Cir. 1970); Archer v. United

States, 393 F. 2d 124 (Sth Cir. 1968); United States v.

Cortez, 425 2d 453 (6th Cir. 1970); United States v.

Davis, 295 F. Supp. 496 (D. Mass. 1966); State v. Sher-

ron, 463 P. 2d 533 (Ariz. 1970); Wingard v. State, 208

So. 2d 263 (Fla. App. 1968); Beason v. State, 453 P. 2d —

283 (Okla. 1969); Robinson v. State, 441 S.W. 2d 855

(Texas 1969). The only exception-to this rule has oe-

curred in a jurisdiction which, at the time of the decision,

used a pure focus concept to determine custody. See

Windsor v. United States, 389 F. 2d-53) (Sth Cir. 1968).

If a suspect is told he is under arrest then, of course,

there is custody for Miranda purposes. In all such eases

a reasonable man would reasonably conclude that he ‘is

in custody. It is clear that custody exists in all cases

after formal arrest. People v. Hale, 69 Cal. Rptr. 28 (Cal.

App. 1968); Duckett v. State, 240 A. 2d 332 (Md. App.

1968); Franklin v. State, 252 A. 2d 487 (Md. App. 1969).

See Johnson v. Commonwealth, 160 S.E. 2d 793 (Va.

1968) (suspect told not to leave home after mterview).

One special situation occurs when a suspect is in ets-

tody on other charges—under rule in Mathis he is:in ecus-

tody even if the officer tells himi he could leave the inter-

view room if he chooses. See Young v. State, 234 So. 2d

341 (Fla. 1970). |

There are a scattering of cases relying on what the

officer did not say concerning arrest. In State v. Caha,

165 N.W. 2d 362 (Neb. 1969) the Court relied partially

on the fact that the suspect had never been told he was

under arrest to negate custody. See also United States v.

a Ot

Pata ah de ha

‘

it Chive aden dce ok cea ck ccd

Littlepage, 435 F. 2d 498 (5th Cir. 1970); People v. Cart-

pia, 182 N.W. 2d 811 (Mich. App. 1970). In People

vy. Ellingsen, 65 Cal. Rptr. 744 (Cal. App. 1968) the fact

that a defendant was never told he was free to go was

one circumstance leading to a finding of et ustody. See

United States v. Lackey, 413 F. 2d 655 (7th Cir. 1969).

The fact that warnings are given does not mean that

the suspect was’ in custody, United States vy. Owens, 431

F. 2d 349 (Sth Cir. 1970).

Finally, the demeanor of the ofticer may be signifieant.

The higher the level of courtesy and deference the sus-

pect—the more likely a court is to find that the suspect

did not reasonably believe he was in custody. See State

v. Bode, 261 A. 2d 396 (NJ. App. 1970) (Police chief

questioning subordinate with the aim. of protecting his

fellow officer); Commonwealth v. W illman, 255 A. 2d 534

(Pa. 1969) (Friendly attitude of officers) The giving of

unnecessary warnings has been thought to demonstrate

an attitude of courteous consideration and thus support

a finding of no custody, State v. MeLam, 478 P. 2d 570

(N.M. App. 1970). Where, however, the officer is very

accusatory and insistently confronts the suspect with evi-

dence of his guilt, the argument that custody existed is

strengthened. See People v. Arnold, 426 P. 2d 515 (Cal.

1967); Cf. United States v. Lackey, 413 F. 2d 655 (7th

Cir. 1969) (Defendant was required to take an oath and

the interview was tape recorded in small room. )

a ES es RDB a eats Oa COE RS Sai tn 5 RMR a

¥;

THE LENGTH AND FORM OF QUESTIONS

‘The length and nature of the interrogation is of con-

siderable significance. Almost all of the cases approving

crime scene and street interrogations conducted without

warnings rely upon the additional fact that questioning ~

was brief—consuming little time and involving a, few,

very general inquiries.

The reliance of courts on brevity of interrogation oc-

curs in two kinds of cases. First, there are situations in

which the brief questioning aids a court in determining

that there was no custody. These situations are dealt with

here. Second, there are situations where the suspect is

clearly in custody, i.e., in jail under arrest, and the court

concludes that one or two questions do not, under the

circumstances, constitute “interrogation.” These situa-.

tions are deal with in Point V.*

The cases on point rely both on the brevity and the-’

nature of inquiries. Brief, routine police inquiries are in-

dicative of a non-custodial interview designed to clarify |

a questionable situation. The leading case is. probably

Allen v. United States,-390 F. 2d 476 (D.C. Cir. 1968)

modified 404 F. 2d 1335 where an officer stopped a car

‘driven by‘defendant. There was a passenger in the car

who was bleeding and injured. The driver gave some

suspicious answers to the officer’s questions and the offi-

cer asked the passenger if he had been beaten or by

whom he had: been beaten. The passenger mumbled in-

*Point V of the original monograph deals with the na-

ture and application of the concept of “interrogation,”

Lio Died. at eo eee So al

coherently and pointed at the driver. The officer asked

the driver if he had done it and the driver said yes. The

Court held that the officer had to clarify the situation

and that he did so properly by asking routine questions.

. The Court found that such questioning was permissible

under Miranda and pointed out that warnings demean

routine police investigation and make cooperative citizens

nervous. |

The Courts have generally reached the same result

where short, neutral (non-accusatory) inquiries were put,

i.e., Who are you? Where do you live? What are you do-

ing here? Where do you come from? Is this ear (or other

item) yours? Where did you get it? ete. Sciberras v.

United States, 380 F. 2d 732 (10th Cir. 1967); Arnold v.

United States, 382 F. 2d 4 (9th Cir. 1967); United States

v. Gibson, 392 F. 2d 373 (4th Cir.-1968); United States

v. Thomas, 396 F.2d 310 (2nd Cir. 1968); Chayez-Mar-

tinez v. United States, 407 F. 2d 535 (9th Cir. 1969);

Lowe v. United States, 407 F. 2d 1491 (9th Cir. 1969);

Virgin Islands vy. Berne, 412 F. 2d 1055 (3rd Cir. 1969);

United States v. Montes, 421 F. 2d 215 (S5th'Cir, 1970);

United States v. Charpentier, F. 2d (10th Cir.

1971); Sharbor v. Gathright, 295 F. Supp. 386 (W.D. Va.

1969) (name);-United States v. Diaz, 427 F. 2d 636 (1st

Cir, 1970). |

The relevant state cases are Truex v.. State; 210 So. 2d

— 424 (Ala. 1968); State v.: Reynolds, 436 P. 2d 142 (Ariz.

App. 1968); Stout v. State, 426 S.W. 2d 800 (Ark. 1968);

People v. Quicke, 455 P. 2d 787 (Cal. 1969); People vy.

Terry, 466 P. 2d 961 (Cal. 1970); People v. Alesi, 434 P.

2d 360 (Cal. 1967); People v. Allison, 57 Cal. Rptr. 635

(Cal. App. 1968); People v. Wright, 66 Cal. Rptr. 995

(Cak. App. 1968); People v. Hazel, 69 Cal. Rptr. 437 (Cal.

TERMS -s 6 SL a CE a EEL

App. 1967); People v. Bolinski, 67 Cal. Rptr. 347 (Cal.

App. 1968); People v. Manis, 74 Cal. Rptr. 423 (Cal. App.

1969); Lockridge v. Superior Court, 80 Cal. Rptr. 223

(Cal. App. 1969); People v. Henera, 90 Cal: Rptr. 802

(Cal. App. 1970); White v. United States, 222 A. 2d 843

(D.C. 1966); People ‘v. Routt, 241 N.E. 2d 206 (Ill. App.

ae Duffy v. State, 221 A. 2d 653 (Md. 1966); People

- Robinson, 177 N.W. 2d 234 (Mich. App. 1970); State

v. Brandford, 434 S.W. 2d 497 (Mo. 1968); Schnepp v.

State, 437 P. 2d 84 (Ney. 1968); People v. Rodney P.,

233 N.E. 2d 255 (N.Y. 1967); People v. Phinney, 239

N.E. 2d 515 (N.Y. 1968); People v. Cerrato, 246 N.E. 2d

001 (N.Y. 1969); State v. Meadows, 158 S.E. 2d 638

(N.C. 1968); State v. Lipker, 241 N.E. 2d 171 (Ohio App.

1968); Commonwealth \ Bordner, 247 A. 2d -612 (Pa.

1968); State v. Watts, 152 S.E. 2d 684 (S.C. 1967); Sut-

ton v. State, 419 S.W. 2d 857 (Texas 1967); State. v.

Whitney, 431 P. 2d 711 (Wash. 1967); State v. Bosford,

a Pp. 4 352 (Wash. App. 1967); State x. Lister, 469 P.

d597 (Wash. App. 1970).

The existence of- lengthy interrogations indicates cus-

tody. See People v. Ryff, 284 N.Y.S. 2d 953 (N.Y. App.

1967); State v. Skiffer, 218 So. 2d 313 (La. 1969). The ~

use of relay questioning is highly damaging to a conten-

tion of no custody. People v. Tanner, 295 N.Y.S. 2d 709

(N.Y. App. 1968); People v. Ellingsen, 65 Cal. Rptr. (Cal.

App. 1968). Repeated interviews lead to similar infer-

ences. Commonwealth v. Banks, 239 A. 2d 416 (Pa. 1968).

In United States v. Bekowies, 432 F. 2d 8 (9th Cir. 1970)

the Court relied heavily upon the presence of close and.

persistent questioning: to establish custody.

The use of accusatory and leading questions is not

helpfu! to the argument that no custody existed.“State v.

EWS ATR RINE MEIN OF MoM vy “aga Me SAR 66 SHR : Oe ae on oe of

Pedi.) a. 7‘ a 5 a ae

opie myer

Sak REL NE OY Ane

Evans, 439 S.W. 2d 170: (Mo. 1969). Confrenting the sus-

pect with evidence against him People v. Arnold, 426

P. 2d 515 (Cal. 1967)); Underwood v. State, S.W.

2d.—~ (Tenn. App. 1970) and discounting the suspect’s

denials are also indicative of custody. People v. White,

446 P. 2d 993 (Cal. 1968); Commonwealth v. Sites, 235 A.

2d 387 (Pa. 1967). :

The logic behind the latter cases is that confrontation

and accusation by the police in many situations would

give rise to a reasonable belief in an imnocent man that

the police think he had committed a crime and that his-

arrest is either imminent or is an accomplished fact.

Finally, those courts that use the con¢ept of focus may ~

approve routine interrogation on the additional grounds

that the routine nature of the inquiry tends to show lack

of -focus. |

VI.

THE SUMMONING OF POLICE AND

INITIATION OF INTERVIEWS

The fact that a suspect summons the police and/or

initiates the interview sujf{ports the premise that the in-

terview was non-custodial. The rationale is ‘similar to

that underlying the admission of volunteered statements

—the element of compulsion is lacking and_ the state--

ments are not solely the result of police action, It may

also be thought that where the suspect initiates contact.

with the police, the police are likely not to assume, at

least in the beginning, that he is a ‘guilty party.

In People v. Lee, 308 N.Y.S. 2d 412 (N.Y. App. 1970) .

‘the defendant flagged down a police car and” stated that

‘he shot a wold be robber (who was the true victim).

}

Ce ee De ot oe deci Maoh,

The Court held that the defendant was not in custody

when the. police questioned him about the incident. In

State v. Huson, 440 P. 2d 192 (Wash. 1968) the defend-

ant arranged for an officer to pick him, up at an agreed

> Fe ee

place—the conversation at the agreed, place was held not ;

custodial. See also Davidson v. United States, 371 F. 2d a

994 (10th Cir. 1966); Stout v. State, 426 S.W. 2d 800 +

(Ark. 1968); Beeks v. State, 167 S.K. 2d 156 (Ga. 1969); é

People v. Routt, 241 N.E. 2d 206 (Ill, App. 1968); Spell F

v. State, 253 A. 2d 919 (Md. App. 1969); Commonwealth , “

v. Cutler, 249 N.E. 2d 632 (Mass. 1969); People v. Bey,

259° N.E. 2d 800 (Ill. 1970); See Schmidt v. State, 265.

N.E. 2d 219 (Ind. 1970); Lipps v. State, 258 N.E. 2d 322

(Ind. 1970); State y. Zachmeier, 441 P. 2d 737 (Mont.

1968); People v. Yukl, 256 N.E. 2d 172 (N.Y. 1969); Peo-

ple v. Fairley, 301 N.Y.S. 2d 1013 (N.Y. App. 1969). See

State v. Meeks, 469 P. 2d 302 (Kan, 1970).

One who volunteers to go down to a police station to

give evidence as a witness is not in custody. People v.

Hill, 452 P. 2d 329 (Cal. 1969); United States v. Posey,

416 F. 2d 545 (5th Cir, 1969). Similarly, a defendant ~

who, for his own purposes’of using the agent as an in-

termediary, sought out a man known to le a state agent

is not in custody. Adjmi v. State, 208 So. 2d 859 (Fla. 7

App. 1968). |

On the other hand, police insistence on interviewing a

suspect at 4 A.M, when they had been told he was asleep

was inferential of custody. See Orozeo v. Texas, 394 U.S.

324 (1969). 5

PEDAERA BING pH fe «ig PUTTAR

“

; VII. |

THE LACK OF ARREST AFTER THE INTERVIEW -

The fact that a suspect ‘was arrested immediately fol-

lowing an interview-does not mean the interview was

necessarily custodial. In nearly every case dealing with

non-custodial interviews the suspect was, in fact, prompt-

ly arrested afterwards. One court has considered the sub-

sequent arrest to relate back but only: because the charge

was in the nature of a pretext. United States v. Bekow-

_ ies, 432 F. 2d 8'(9th Cir. 1970). _

_ However, the case where a suspect is allowed to go free

after the interview is almost certainly one: in which the

interrogation is non-custodial. See Evans v. United States,

377 F. 2d 535 (5th Cir. 1967); Nobles v. United. States,

891 F, 2d 602 (5th Cir. 1968); United States vy. Mang-

lona, 414 F.2d 642 (9th Cir. 1969); United States v.

Seully, 415 F.2d 680 (2nd Cir. 1969); Virgin Islands v.

Berne, 412 F. 2d 1055 (3rd Cir. 1969); United States v.

Littlepage, 435 F. 2d 498 (Sth Cir. 1970); United States

v. Clark, 294 F. Supp. 1108 (.D. Pa. 1968); Sharbor v..-

Gathright, 295 F. Supp. 386 (W.D. Va. 1969); United

States y. Kubik, 266 FL: Supp. 501 (S.D.. lowa 1967);

United States v. Knight, 261° F. Supp. 843 (E.D. Pa.

1966). -_ :

See also: State vy. Hunt, 447 P. 2d 896 (Ariz. App.

1968); State v. Hall, 468 P. 2d 598 (Ariz. App. 1970);

People v. Singleton, 63 Cal. Rptr. 423 (Cal, App. 1967);

People v. Butterfield, 65 Cal. Rptr. 765 (Cal. App. 1968) ;

Thompson yv. State, 235 So. 2d 354 (Fla. App. 1970);

Commonwealth v. O’Toole, 233 N.E. 2d 887 (Mass. 1967)

approved in O’Toole v. Seafati, 386 F. 2a 168 (Ist Cir.

- 1968); People v. Rogers, 165 N.W. 2d 337 (Mich. App.

55 :

968); State v. Seefeldt, 242 A. 2d 322 (NJ. 1968); Peo-

ple v. Williams, 290 N.Y.S. 2d 321 (Sup. Ct. 1968); State

v. Williams, 168 S.E. 2d 217.(N.C..App. 1969); State v..

Travis, 441 P. 2d 597 (Ore. 1968); Jones v. State, 442

SW. 2d 698 (Texas 1969); State v. Lister, 469 P. 2d 597

.Wash. App. 1970). Centra: Underwood v. State, ——

S.W. 2d , (Tenn, App. 1970).

7 VIII.

STATEMENTS CONSTITUTING THE CRIME

Where a suspect in custody attempts to bribe an offi-

cer—his statement constitutes a crime in itself and is —

probably admissible even though he may make the bribe

offer during a period of custodial interrogation without

having received warnings. See Vinyard v. United States,

335 F. 2d 176 (8th Cir. 1964); Unifed States v. Perdiz,

256 F. Supp. 805 (S.D. N.Y. 1966) (illegal arrest precedes

bribe offer); State v. McKinley, 234.N.E. 2d 611. (Ohio

App. 1967); People v. Ricketson, 264 N,E. 2d 220 (Il.

App. 1970) (“vou take the stuff and we will go”); Cf.

Commonwealth v. French, 259 N.E. 2d 195 (Mass. 1970).

The same result-.follows where a statement made without

necessary warnings constitutes perjury. United States v.

Di Giovanni, 397 F. 2d 409 (7th Cir. 1968); State v. Van

Nostrand, 465 P. 2d 909 (Ore. App. 1970); Cf. People v.

Genser, 58-Cal. Rptr. 290 (Cal. App. 1967); People v.

Goldman, 234 N.E. 194 (N.Y: 1967). See also; Noland v.

United States, 380 F. 2d 1016 (10th Cir. 1967) (State-

- ments made bv inductee at induction center); United

States v. Kroll, 402 F. 2d 221 (3rd Cir. 1968) (same).

The reasoning of the above cases is supported by two

recent decisions which hold that one can be prosecuted

NITE ES SHEN ME as BCT SEMIS RET MN AE BGA NLS

for filing false information even though the statute which -

required the filing was unconstitutional. See Dennis v.

United States, 384 U.S..855 (1966); Bryson vy. United

States, 396 U.S. 64 (1969).

IX.

STATEMENTS CONSTITUTING THE RES GESTAE

Two states have adopted the theory that: any state-

ment admissible: as part of the res gestae would be ad-

missible without Miranda warnings. Hill -v. State, 420

S.W. 2d 408 (Texas 1967) (question asked Just after ar-

rest); Fisk v. State, 432 S.W. 2d 912 (Texas 1968) (de-

fendant in shock spoke despite attempts of officers to

silence and warn); Spann vy. State, 48 S.W. 2d 128

(Texas 1969); Brown v. State, 4837 S.W. 2d 898 (Texas

1969); Moore v. State, 40 S.W. 2d 643 (Texas 1969);

Wright v. State, 440 S.W. 2d 646 (Texas 1969) (private

eitizeti); Lueas vy. State, 452 S.W. 2d 468 (Texas 1970)

(victim came upon suspect who had been stopped for

traftie violation while in victim’s ear). Jones vy. State,

458 S.W. 2d 654 (Texas 1970) (inquiring about pills

found in glove compartment).

In People v. O'Neill, 162 N.W. 2d 490) (Mich. App.

1968) it was held that statements made in resistance to

arrest are admissible as part of the res gestae without

Miranda warnings. The same result was reached in Peo- .

ple v. Bean, 151 N.W. 2d 878 (Mich. App. 1967) where

a suspect was seen running on the street, stopped and _

asked why. :

The res gestae theory seems superfluous. If the con-

cept of res gestae is reasonably narrow in terms of re-

moteness of time and place it is safe to assume that

‘ —_*

Miranda is not applicable. This is not because the state-

ments are part of the res gastae, it is because the state-

ments will be either non-custodial or volunteered or made .

to some private citizen.

x. _

STATEMENTS TO UNDERCOVER

AGENTS OR INFORMERS

“Tf a suspect does not know he is speaking to a police-

man he can hardly be said to have a reasonable belief

that he isin custody. Nevertheless, it has been argued

that undercover police should give warnings when the

investigation focuses on the particular suspect. The argu-

ment clearly conflicts-with Hoffa v. United States, 385

US. 293 (1966) and has been rejected by every court

that has considered it. See Garcia v. United States, 364

F. 2d 306 (10th Cir. 1966); United States v. Baker, 373

F. 2d 28 (6th Cir. 1967); People v. Ward, 72 Cal. Rptr.

46 (Cal. App. 1968); People v. Patty, 59 Cal. Rptr. 881

(Cal. App. 1967); People v. Stenchever, 57 Cal. Rptr. 14

(Cal. App. 1967); Parnell v. State, 218 So. 2d 535 (Fla.

- App. 1969); People v. Palmer, 265°@.E. 2d 627 (MI.

1970); State v. Maes, 469 P. 2d 529 (N.M. 1970) (eases -

cited therein); McCart v. State, 485 P. 2d 419 (Okla. Cir.

1968). See State v. Holmes, 476 P. 2d 878 (Ariz. App.

1970).

The ordinary situation involving an undercover agent

is clearly non-custodial in all respects. However, there are

cases dealing with a jailed suspect who makes a state-

ment to his cellmate who conveys the information to the

police. This has twice been approved. See Holston v.

State, 208 So. 2d 98 (Fla. 1968); State v. Spence, 155

AME DEIR I AOE LEA EARLE CALE GES entire ie on fae OR ried OX eee OGLE Tee he MRE UE

S.E. 2d 802 (N.C. 1967). There is ‘an inherent Massiah

problem involved in- such situations. See Point XVII

(Massiah and Miranda).* .

XI.

STATEMENTS AFTER TRAFFIC STOPS

Several courts have dealt with questioning of the driver

of a vehicle stopped for traffic violations or for general

investigation. Such questioning is thought to be non-cus-

todial. This result is justified by several elements present

in the traffic stop case: (a) the traffic stop is a common

everyday occurence endured by most citizens one or more

times and is not likely to create a belief that one ts un-

der arrest or in custody, (b) the questions are usually

brief and non-accusatory, (c) the situation seems to fit

within the rubric of “general on-the-scene” investigation,

and (d) there is usually no definite “focus” on the per-

son questioned with respect to a specific crime.

The cases holding traffic stop inquiries’ to be non-cus-

todial are: Wilson v. Porter, 361 F. 2d 412 (9th Cir.

1966); Allen v. United States, 390 F. 2d 476 (D.C. Cir.

1968); Jennings v. United States, 391 F. 2d 512 (5th Cir.

1968); Lowe v. United States, 407 F. 2d 1391 (9th Cir.

1969); United States v. Chadwick, 415 F. 2d 167 (10th

Cir. 1969); Bendelow v. United States, 418 F. 2d 42 (5th

Cir. 1969); United States v. LeQuire, 424 F, 2d 341 (Sth

Cir. 1970); United States v. Tobin, 429 F. 2d 1261 (8th

Cir. 1970) (routine license check); United States v. Chase,

414 F. 24.780 (9th Cir. 1969); Unitéd States v. Edwards,

421 F. 2d 1346 (9th Cir. 1970); United States v. Robert-

*The reference is to Point XVITT of the original mono-

graph.

« a a eee hire eld ir ot s : = be

son, 425 F. 2d 1386 (5th’ Cir. 1970); Campbell v. Superior

Ct., 479 P. 2d 685 (Ariz. 1971) (for as long-as is neces-

sary to complete the citation); State v. Perez, 442 P. 2d

125 (Ariz. App. 1968); People v. Nieto; 55 Cal.: Rptr.

946 (Cal. App. 1967); People v. Gant, 70 Cal. Rptr.”

801 (Cal. App. 1968); People v. Tate, 259 N.E. .2d 79)

(Ill. 1970); People v. Ricketson, 264 N.E, 2d 220 (Ill.

App. 1970); Montgomery ‘v. United States, 268 A. 2d 271

(D.C. App. 1970) (conversation while officer wrote ticket) ;

Schnepp v. ‘State, 437 P. 2d 84 (Nev. 1968); State v.°

Twitty, 246 N.E. 2d 556 (Ohio App. 1969); Fritts v. State,

443 P. 2d 122 (Okla. 1968); State v. Lister, 469 P. 2d

997 (Wash. App. 1970); State v. Gray, 473 P. 2d 189

(Wash. App. 1970). See People v. Bolinski, 67 Cal. Rptr.

347 (Cal. App. 1968). ——

The two cases to the contrary rely upon the theory

that a suspect must be considered in custody as soon as

the officer has probable cause to arrest. People v. Me-

Fall, 66 Cal. Rptr. 277 (Cal. App. 1968); People v.

Ceccone, 67 Cal. Rptr. 499 (Cal. App. 1968).

XII.

STATEMENTS DURING THE COURSE OF

STOP AND FRISK

a. General Stop and Frisk One pressing question arising

under Miranda is whether a stop and ftisk situation con-

- stitutes custody for purposes of Miranda. In most juris-

dictions having stop and frisk procedures the officer is

usually authorized to ask a few simple questions, i.e.,

name, address, and explanation of actions. The right to

ask the questions was neither approved nor disapproved

in Terry v. Ohio, 392 U.S. 1 (1969), but. the concurring

opinions of Justices White and Harlan seem to favor the

idea. In any event, under state stop and frisk laws the

power usually exists. See People v. Rosemond, 257 N.E.

_ 2d 23 (N.Y. 1970); People v. Gerule, 471 P. 2d 413 (Colo.

1970); Loyd v. Douglas, 313 F. Supp. 1364 (S.D. Iowa: |

1970) (allowed to leave on refusal to answer).

In People v. Manis, 74 Cal. Rptr. 423 (Cal. App. 1969),

an opinion well worth reading, the Court held that a.

short period of on the street questioning in connection

with a stop and frisk does not require Miranda warn-

ings. The Court reasoned first that formal custody does

not exist in stop and frisk. Second, the Court noted that

the language of the Miranda opinion had undergone a

meaningful change from its preliminary print into its

final form. In the Preliminary Print of the U.S. Reports

the Miranda opinion referred to one in “custody or other-

wise deprived of his freedom of action in any way”. In

the Official Report the phrase was changed to “custody

or otherwise deprived of his freedom of action in any

significant way” (eniphasis added). The California Court

reasoned that a stop and frisk though it wis a depriva-

tion of freedom of action was not a significant depriva-

tion and thus Miranda was inapplicable. |

The Manis case was followed in People v. Glover, 75

‘Cal. Rptr. 629 (Cal. App. 1969) and other California

eases accept the general proposition espoused in Manis.

See People v. Me Lean, 85 Cal. Rptr. 683 (Cal. App.

1970); People v. Singleton, 63 Cal. Rptr. 324 (Cal. App.

1967); People v. Weger, 59 Cal. Rptr. 661 (Cal. App.

1967); People v. Hubbard, 88 Cal. Rptr. 411 (Cal. App.

1970); People v. Herrara, 90 Cal. Rptr. 802 (Cal. App.

1970) (temporary detention while car searched for aliens,

single question asked about packages in the car),

At least two federal cases seein to support the general

principle that questions asked during stop’and frisk do

not require warnings. See United States v,\ Thomas, 396

I. 2d 310 (2nd Cir. 1968); Lowe v. United States, 407 F.

2d 1491 (9th Cir. 1969). The District of Columbia has

held that stop and frisk does not constitute custody for

Miranda purposes. Green v. United States, 234 A. 2d 177

(D.C. 1967). See White v. United States, 222 A. 2d 843

(D.C. 1966); Keith v. United States, 232 A. 2d 92 (D.C.

1967). The same result is reached in Utsler v. State, 171

N.W. 2d 739 (S.D. 1969) and People v. Armstrong, 298

N.Y.S. 2d 630 (N.Y. App. 1969); State v. Lister, 469 P.

2d 597 (Wash. App. 1970); Cf. State v. Miranda, 450 P.

2d 364 (Ariz. 1969); United States v, Marlow, 423 F, 2d

1064 (5th Cir. 1970). |

_ Several opinions seem: to adopt the principle that stop

and frisk questioning is non-custodial by allowing: the

police to “adtost” a person for a few inquiries. See Mor-

gan v. State, 234 A. 2d 762 (Md. App. 1967); Priestly v.

State, 446 P. 2d 405 (Wyo. 1968). See State v. Farmer,

/ 476 P. 2d 129 (Wash. App. 1970) (stopping of persons

who resemble a suspect). — ;

It must be emphasized that the courts sustaining stop

and frisk inquiries rely heavily on the brevity and neu-

trality of the questions. This suggests that what under-_

lies thé opinions is not only the belief that the situation

is not “custodial”, but also the belief that what takes

places does not constitute AntREL OR OR as the Court in

Miranda used the word.

Finally, if a person is a proper subject of stop and

frisk and nothing more—the right to stop and frisk may

not include the right to take the person to the police

station for extensive interrogation. The question is un-

WEIS SE Pea EE HM tere

. AYER: $,

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ns eat

3 — on s — a0 Ome

i az A 4 AO a Sal ile TEN BS BR lt son? ere

decided. See Morales y. New York, 396 U.S. 102 (1969).

It may well be that probable ‘cause to arrest will be re-

quired in such a case. See Doran v. United States, 421 |

F. 2d 865 (9th Cir. 1970).

b. Questions Asked in the. Tniarent of Self- Protection

Relying an the self-protection rationale of the stop and

frisk cases the coyrts have extended admissibility to

statements made immediately after arrest when those

statements were made in answer to questions. about where

a known weapon was kept. The Courts reason that there

is no “custodial interrogation” but it is probably more

accurate. to s say what occurs is “eystodial non-interroga-

tion”.

In People v. Ramos, 170-N.W. 2d 189 (Mich. App.

1969) the suspect’s wife told the officers he had a gun.

They apprehended the suspect and asked him where the

gun was. He denied hiving it. and was told to quit kid-

ding and tell where it*was. He pointed to his belt. The

Court relied on the ‘right of the officers to protect them-

selves as justifying the asking of the questions. Similar-

ly, a Court has. upheld the actions of an officer who in-

terrupted his fellow offieer—while he was giving the

-warnings—to ask where the gun was. State v. Lane, 467

P. 2d° 304 (Wash. 1970). See also Weissinger v. State,

218 So.-2d 432 (Miss. 1969); Ballew v. State, 441 S.W. 2d

453° (Ark. 1969). —

In one case where the officer was held justified in ask-

ing about a gun in order to protect himself, the Court

advanced the theory that such a question was permissi- -

ble as “general on the scene questioning,” Pope v. State,

478 P. 2d 801 (Alaska 1970). “ /

FEE TR AAR Sp cRNA cor

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.