# Amicus Curiae Brief — United States v. Campos-Serrano

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0340%3A4

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1971
- **Citation:** 404 U.S. 293

## Text

‘ e
’ ; |
. ‘ .
’
L
’
° P “
’ . e }
° .
7 F
°
°
, ’
.
° . .
‘
e . ’
«
: e
»
7 -
.
y
,
\
.
: .
’
«
’ 2
a
e
° ‘
‘ »
Z
7 -
oe
Z
: “
°
¢
. .
.
- >
é “
° *
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.

*

30

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

3t

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

39

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).

33

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

34

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

35

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

37

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.

38

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 =
.

39

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-

a

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 +

ms

mat
a

¥ Eek mere’ TONE ER gett Be
= cs

. e
42
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

43

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

44
.
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-

45

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

e

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.

47

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

48

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

49

¥;
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

o

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.

al

TERMS -s 6 SL a CE a EEL

ol

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

52

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,

53

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

“

lm

54
; 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

56

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

oe

te
‘ —_*
t

57

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

58

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
Ss

59

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

60

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),

61

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: $,
OS

eS ne

ns eat

3 — on s — a0 Ome
i az A 4 AO a Sal ile TEN BS BR lt son? ere

62

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). “ /

7

FEE TR AAR Sp cRNA cor

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0340%3A4. Public record. Not legal advice.