Does Miranda Apply When Defendant’s Lawyer is Present?

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Does Miranda Apply When Defendant’s Lawyer is Present?

Posted on December 10, 2019 by Jonathan Holbrook

New North Carolina Appellate Cases on the Meaning of Custody Under Miranda v. Arizona

Posted on June 14, 2016 by Bob Farb

The Meaning of Custody During Traffic Stops Under Miranda v. Arizona and Berkemer v. McCarty

Posted on May 24, 2016 by Bob Farb

N.C. Court of Appeals Rules That Defendant Did Not Make An Unambiguous Assertion of Right to Counsel Under Miranda to Bar Officer’s Custodial Interrogation

Posted on April 26, 2016 by Bob Farb

References to the Defendant’s Assertion of Miranda Rights

Posted on August 4, 2011 by Jeff Welty

Sometimes the state wants to introduce evidence that the defendant invoked his right to remain silent or his right to counsel under Miranda. If the prosecution’s purpose is simply to imply the defendant’s guilt, we know that’s improper from Miranda itself: “In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation.” Miranda v. Arizona, 384 U.S. 436 (1966).

But the state may argue that the circumstances of a particular case justify the introduction of evidence about the defendant’s assertion of his Miranda rights. For example, if a defendant testifies to an exculpatory version of events, the state may wish to ask him why, if his trial testimony is true, he didn’t tell officers his exculpatory version of events. Or, the state may want to establish that the investigating officer was thorough and left no stone unturned. (“Officer, did you ask the defendant for his version of events?” “Yes, I did, but he asserted his constitutional right to remain silent so we pursued other avenues of investigation.”) Similarly, the state may want to explain how it came to get a partial statement from a defendant. (“The defendant admitted that he got into a fight with the victim.” “But did he admit that he stabbed the victim during the fight?” “No. When I asked whether he stabbed the victim, he said he would prefer to remain silent.”)

I’ve had several recent questions about this issue, so I thought I’d take some time to put together a blog post about it.

First, the fact that a defendant testifies to an exculpatory version of events at trial, but asserted his Miranda rights rather than telling officers the same story during the investigation of the case, does not allow the state to cross-examine the defendant about his assertion of his rights. Doyle v. Ohio, 426 U.S. 610 (1976) (defendants refused to speak with the investigating officers after being read their Miranda rights; they later testified that they had been framed for the charges against them; the prosecutor cross-examined them about their failure to tell the officers that they’d been framed; convictions reversed because “the use for impeachment purposes of petitioners’ silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment”; Miranda warnings contained an implicit promise that the assertion of the right to silence or counsel will not be penalized); State v. Shores, 155 N.C. App. 342 (2002) (murder defendant testified that he acted in self-defense; prosecutor repeatedly asked him whether he had told his version of events to officers, and argued in closing that if he truly had acted in self-defense, he would have told officers about it; conviction reversed because prosecutor used the defendant’s post-Miranda silence against him).

Second, when a defendant initially agrees to talk to the police, but asserts his Miranda rights before the interview or interrogation is complete, it is probably permissible for an officer to explain in general terms how the interview ended. (“The defendant chose to end the interview.” Or, “the defendant told us he didn’t want to talk to us anymore.”) Otherwise, the state would be forced to introduce only a fragment of a conversation, and the jury would be left to speculate about how and why the interview ended. However, the officer probably should not refer specifically to the defendant’s assertion of his Miranda rights. (“The defendant said that he was going to assert his right to silence under Miranda because he didn’t want to incriminate himself.”) See United States v. Andujar-Basco, 488 F.3d 549 (1^st Cir. 2007) (collecting cases and drawing this distinction). As an aside, if a defendant agrees to talk to police, then later testifies at trial in a way that differs from his earlier statement, it is permissible for the prosecutor to cross-examine the defendant about anything he omitted from his earlier statement. See, e.g., State v. Ezell, 182 N.C. App. 417 (2007).

Third, a defendant may open the door to the introduction of evidence about his assertion of his Miranda rights if he testifies that he was not given an opportunity to speak to officers or that he gave them an exculpatory statement. See Doyle, supra (“[T]he fact of post-arrest silence could be used by the prosecution to contradict a defendant who testifies to an exculpatory version of events and claims to have told the police the same version upon arrest. In that situation the fact of earlier silence would not be used to impeach the exculpatory story, but rather to challenge the defendant’s testimony as to his behavior following arrest.”); United States v. Reveles, 190 F.3d 678 (5th Cir. 1999) (cross-examination of defendant regarding his post-arrest silence permissible because offered to rebut defendant’s claim that he had been willing to cooperate).

Fourth, even if the state improperly introduces evidence of a defendant’s assertion of his Miranda rights, a mistrial (if the error is noticed during the trial) or a reversal of a conviction (if the issue is raised on appeal) is not automatic. Whether any relief is required depends on whether the reference is brief or extensive; whether it took place in response to a question from defense counsel or in response to a question from a prosecutor; and whether it is mentioned by the prosecutor in closing argument. See, e.g., State v. Freeland, 316 N.C. 13 (1986) (officer’s testimony that defendant asserted his right to silence post-Miranda was improper but harmless given that the prosecutor did not intentionally elicit it and did not try to capitalize on it, and that the evidence of the defendant’s guilt was overwhelming; court notes that pre-arrest silence may properly be used for impeachment); State v. Erickson, 181 N.C. App. 479 (2007) (mistrial properly denied where officer testified “[the defendant] asked for a lawyer” while explaining, on cross-examination, why he had been unable to pursue a particular avenue of investigation; the testimony was neither elicited by the prosecutor nor used in the prosecutor’s argument to the jury; it was an offhand remark not intended as a comment on the defendant’s assertion of his rights); State v. Christian, 180 N.C. App. 621 (2006).

Category: Evidence, Procedure, Uncategorized | Tags: doyle, miranda, right to counsel, right to silence

J.D.B., the Supreme Court, and Miranda

Posted on June 20, 2011 by Jeff Welty

As I noted last week, the Supreme Court of the United States just decided J.D.B. v. North Carolina, an important Miranda case. I blogged about the case here when it was decided by the state supreme court, and it’s worth taking another look at it now.

I previously summarized the facts as follows:

Chapel Hill police suspected a seventh-grade student, who participated in special education classes, of breaking into several houses. An investigator went to the juvenile’s school and had him removed from class and escorted to a conference room by a school resource officer. The investigator questioned the juvenile in the presence of the SRO, the assistant principal, and an intern. The door of the conference room where the interview took place was closed but not locked. The juvenile was not given Miranda warnings or the “juvenile Miranda” warnings required prior to custodial interrogations by G.S. 7B-2101, and he made incriminating statements. He was allowed to leave and catch the bus home, but later was charged. He moved to suppress his statements based on the lack of Miranda and statutory warnings.

The district court judge denied the motion, and the court of appeals and the state supreme court affirmed in divided opinions. In the appellate courts, the key issue was whether the juvenile’s age should have been considered when determining whether he was in custody for Miranda purposes. (As most readers know, the Miranda warnings must be administered to a suspect when a reasonable person in the suspect’s position would conclude that he or she was under arrest or the functional equivalent thereof.) A majority of both state appellate courts held that the answer was no.

The highest court in the land held otherwise, in a 5-4 decision that split along ideological lines. Justice Kennedy was the swing vote, and, as the senior Justice in the majority, assigned the opinion. He assigned it to Justice Sotomayor, a former prosecutor.

The Court held that “a child’s age properly informs the Miranda custody analysis,” so long as the child’s age is known to police or reasonably apparent. It noted that children are “more susceptible to influence . . . and outside pressures” than adults, making the Miranda warnings important in a broader range of settings. And it suggested that it required no more than common sense for officers and judges to take a suspect’s age into consideration when deciding whether a reasonable person in the suspect’s position would feel as though he or she were under arrest or the equivalent.

Justice Alito wrote the dissent. He argued that taking age into account would undermine the clarity of the Miranda rule; would be difficult for officer and judges to apply in practice; and would open the door to the consideration of innumerable other personal characteristics, such as intelligence and education level. He also suggested that especially young suspects would be protected by the rule against admitting involuntary confessions.

A few thoughts and comments about the case. First, it isn’t a complete win for the juvenile. The majority didn’t conclude that he was in custody. Instead, it remanded to the state courts for further consideration, factoring the juvenile’s age into the custody analysis. Second, it’s not completely clear whether the case creates two standards (one for adults, one for juveniles), or, in effect, a sliding scale (for juveniles of different ages). Sometimes the majority talks about “children generally,” “children characteristically,” and “children as a class,” suggesting the former, but I believe that the latter is closer to the mark. The majority expressly points out that it is not saying that “a child’s age will be a determinative, or even a significant, factor in every case,” and illustrates the point with reference to juveniles nearing age 18. (It also states that “a 7-year-old is not a 13-year-old and neither is an adult.”) Third, Justice Alito is certainly correct that this decision will prompt further litigation about suspects’ personal characteristics. As I noted in my earlier post, “the implications extend also to other categories of people who might be especially prone to believe that interactions with the police are effectively compulsory, such as those with limited intellectual functioning, those with mental illnesses, and those who have limited proficiency in English.” Perhaps there are few characteristics that are both as readily apparent and as significant as a suspect’s age, or perhaps there are many. We’ll find out in future cases.

If you have additional thoughts about J.D.B., please let me know or post a comment. If you’d like to read the New York Times article about the decision, it’s here.

Category: Procedure, Search and Seizure, Uncategorized | Tags: age, custody, J.D.B., miranda, supreme court

Miranda and Field Sobriety Tests

Posted on February 22, 2011 by Jeff Welty

Are Terry Stops “Custodial” for Miranda Purposes?

Posted on July 14, 2010 by Jeff Welty

I used to answer this question “no.” But even though the United States Supreme Court recently said exactly that, see Maryland v. Shatzer, __ U.S. __, 130 S. Ct. 1213 (2010) (“[T]he temporary and relatively nonthreatening detention involved in a traffic stop or Terry stop does not constitute Miranda custody.”), I think the correct answer is “sometimes.”

I’ll start off with why I’ve been saying “no.” I based my answer on cases like State v. Sutton, 167 N.C. App. 242 (2004) (“The mere fact that Officer Sojack performed an investigative stop of defendant and then patted him down did not result in defendant being ‘in custody’ for purposes of Miranda.”), and United States v. Leshuk, 65 F.3d 1105 (4^th Cir. 1995) (holding that Terry stops do not amount to custody, and stating that “drawing weapons, handcuffing a suspect, placing a suspect in a patrol car for questioning, or using or threatening to use force does not necessarily elevate a lawful stop into a custodial arrest for Miranda purposes”). Further, the United States Supreme Court has held that traffic stops generally are not custodial, Berkemer v. McCarty, 468 U.S. 420 (1984), and our appellate courts have held that this is so even when the driver is ordered out of his vehicle and frisked, State v. Benjamin, 124 N.C. App. 734 (1996). Given the similarity between Terry stops and traffic stops, this seemed to me to provide further support for the idea that Terry stops were categorically, or at least almost categorically, noncustodial.

My opinion now, however, is that some Terry stops are custodial, so answering the Miranda question requires examining exactly how a particular stop was conducted. Generally, a suspect is in Miranda custody if the suspect is under arrest or its functional equivalent. The mere fact that the suspect is not free to leave does not mean that the suspect is in custody. After all, a driver who is the subject of a traffic stop is not free to leave, but the cases are clear that such a person is not normally in custody. However, some Terry stops involve very significant restraints on freedom. The court of appeals has noted that “the permissible scope of a Terry stop has expanded in the past few decades,” allowing police to use handcuffs, detain suspects in police vehicles, and use “other forms of force typically used during an arrest.” State v. Campbell, 188 N.C. App. 701 (2008) (quoting Longshore v. State, 924 A.2d 1129 (Md. 2007)).

Against this backdrop, it is worth observing that the federal courts are divided about whether Terry stops can ever be custodial, though the affirmative view appears to be gaining ground. Compare Leshuk, supra (concluding that the answer is no, even for very forceful stops), with United States v. Newton, 369 F.3d 659 (2d Cir. 2004) (holding that a handcuffed suspect was in custody for Miranda purposes even though he was told that he was not under arrest, arguing that whether a detention is properly classified as a Terry stop is “irrelevant” to the Miranda analysis, and noting the split of authority on this issue), and United States v. Martinez, 462 F.3d 903 (8^th Cir. 2006) (holding that a suspect who was frisked, handcuffed, and questioned was subject to a Terry stop and not arrested, yet was in custody for Miranda purposes).

The situation is somewhat clearer in North Carolina. Sutton notwithstanding, our appellate courts have decided several cases in which investigative stops have been found to be custodial. See State v. Washington, 330 N.C. 188 (1991) (defendant was in custody when, during a traffic stop, he was placed in the back seat of a police car; he could not leave the car, so he was effectively “incarcerated on the side of the road”); State v. Johnston, 154 N.C. App. 500 (2002) (defendant was in custody when he was “ordered out of his vehicle at gun point, handcuffed, placed in the back of a patrol car, and questioned by detectives” about a shooting, even though he was told that he was not under arrest). Cf. State v. Torres, 330 N.C. 517 (1992) (defendant in custody when, after shooting her husband, she was escorted to the sheriff’s office, kept under constant supervision, and not told that she was free to leave). The most recent case on point, and the one that got me thinking about this issue, is In re L.I., where the court of appeals held, following Johnston, that a juvenile was in custody when an officer placed her in “investigative detention,” in handcuffs, in his police vehicle.

The bottom line is one that you are not likely ever to see again on this blog: never mind what the Supreme Court just said, a Terry stop that is conducted in a way that is particularly restrictive may amount to custody under Miranda. The cases suggest that a finding of custody is more likely when the suspect is handcuffed, placed in a police vehicle, or subjected to an unusual display of force, such as the drawing of weapons or the involvement of a very large number of officers.

Category: Search and Seizure, Uncategorized | Tags: custodial interrogation, custody, handcuffs, investigative detention, investigative stops, miranda, terry, Terry stops

Terrorists, Miranda, and the Public Safety Exception, Part II

Posted on May 11, 2010 by Jeff Welty

Yesterday, I noted that the public safety exception to Miranda has been invoked in two recent terrorism cases to justify delaying the administration of Miranda warnings. A commenter correctly identified the seminal case in this area: New York v. Quarles, 467 U.S. 649 (1984).

In Quarles, a woman approached two police officers, told them that she had just been raped, described her assailant, reported that he had a gun, and said that he had just entered a nearby supermarket. An officer entered the supermarket and saw the defendant, who matched the woman’s description. The defendant turned and ran. The officer pursued him at gunpoint, and after rounding a corner, the defendant stopped. The officer frisked him and found an empty shoulder holster. The officer then asked where the gun was, and the defendant nodded towards some empty boxes and said “over there.” At the defendant’s trial on weapons charges, the trial judge suppressed the defendant’s statement and the gun because the officer did not Mirandize the defendant before asking about the gun. The Supreme Court reversed, holding that “there is a ‘public safety’ exception to the requirement that Miranda warnings be given before a suspect’s answers may be admitted into evidence.”

It isn’t clear from the Court’s opinion how important the immediacy of the safety concern was to the holding. Sometimes the Court emphasizes that the situation was “kaleidoscopic,” requiring “spontaneity,” an “instinctive” response, and the “immediate necessity” of recovering the gun. At other times, the Court focuses more on the seriousness of the threat to public safety than on its immediacy, as when it says “[s]o long as the gun was concealed somewhere in the supermarket, with its actual whereabouts unknown, it obviously posed more than one danger to the public safety: an accomplice might make use of it, a customer or employee might later come upon it.”

Quarles has been cited in 10 opinions of our appellate courts. Here’s a reasonably representative sample:

State v. Hewson, 182 N.C. App. 196 (2007) (officers responded to call regarding a woman being shot by her husband; asking husband where his wife was and where the gun was prior to administering Miranda warnings fell within public safety exception)
State v. Al-Bayyinah, 359 N.C. 741 (2005) (officers responding to a stabbing tracked the defendant to a wooded area; after 45 minutes or an hour of searching, an unarmed officer with a dog found the defendant; asking the defendant where the knife was fell within public safety exception)
State v. Crudup, 157 N.C. App. 657 (2003) (officers responding to a reported break-in arrested the defendant outside an apartment; after they found drugs in the apartment, they asked the defendant if he lived there and whether the drugs were his; at least the latter question “exceed[ed] the narrow scope of the public safety exception” because there “was no risk of imminent danger to the public, the officers, or even to the defendant”)

Like Hewson and Al-Bayyinah, most of the federal cases in which the public safety exception has been found to apply involve officers asking suspects very briefly about weapons in the first moments of interaction between the two. For example:

United States v. Are, 590 F.3d 499 (7th Cir. 2009) (officers arresting drug suspect in his home asked whether any weapons were present; OK under public safety exception)
United States v. Williams, 483 F.3d 425 (6th Cir. 2007) (public safety exception applies when officers have reason to believe “(1) that the defendant might have (or recently have had) a weapon, and (2) that someone other than police might gain access to that weapon and inflict harm with it”)

There are over 100 published federal court of appeals cases citing Quarles, and I certainly didn’t look at all of them. But I didn’t see any that involved facts at all similar to the recent terrorism arrests. The cases that I saw involved one or two questions, asked immediately, focused on very imminent threats. Even those who think that Miranda warnings shouldn’t be given to terrorism suspects at all have doubted whether the public safety exception really fits cases like the Times Square bomber, where the suspect was questioned for several hours, more than two days after the attempted attack. Of course, the fact that the exception hasn’t previously been applied to similar facts doesn’t mean it won’t be in the future.

Whatever the ultimate resolution of that issue, the cases cited above provide some guidance regarding the application of the public safety exception in “regular” criminal cases. Factors that seem to be relevant in determining whether the exception applies in a particular case include the following:

How likely it is that the arrestee may have access to, or may recently have disposed of, a weapon
The type of weapon at issue
How secure the arrestee is, e.g., whether he is handcuffed, outnumbered, etc.
Whether the arrestee has a history of violence, including a history of using weapons
How much time has elapsed since the arrestee was taken into custody
How much time has elapsed since the crime of arrest
How closely tied the question is to the threat

As always, I welcome your feedback about anything in this post, including factors I’ve overlooked in the list above.

Category: Search and Seizure, Uncategorized | Tags: miranda, public safety exception, quarles, terrorism

Terrorists, Miranda, and the Public Safety Exception, Part I

Posted on May 10, 2010 by Jeff Welty

As everyone knows, a car bomb was recently found, and defused, in New York City. The New York Times summarizes the basic facts as follows:

A crude car bomb made from gasoline, propane, firecrackers and alarm clocks was discovered in a smoking Nissan Pathfinder in the heart of Times Square on May 1, 2010, prompting the evacuation of thousands of tourists and theatergoers on a warm and busy night. Although the device had apparently started to detonate, there was no explosion. Just before midnight on May 3 — 53 hours later — a naturalized U.S. citizen from Pakistan, Faisal Shahzad, was pulled from a Dubai-bound airliner at John F. Kennedy International Airport and arrested in connection with the incident.

For criminal lawyers, an interesting part of the story concerns what happened after Mr. Shahzad’s arrest. Again, the New York Times reports:

[Shahzad] was interrogated without initially being read his Miranda rights under a public safety exception, and provided what the F.B.I. called “valuable intelligence and evidence.”

The Times states that Mr. Shahzad was detained for “three or four hours” before being Mirandized. It appears that he continued to talk even after being read his rights.

The case has reignited a debate about whether terrorism suspects should be given Miranda rights at all. This issue first made news in connection with the Christmas Day underwear bomber. Reports suggest that he provided some information in pre-Miranda interviews, but after a break in the interrogation, a change in interrogators, and the administration of Miranda warnings, stopped cooperating. Several weeks later, he seems to have decided that he would provide information to investigators after all.

In the wake of these cases, some have argued that terrorism suspects are more likely to clam up once they are Mirandized, and that it is more important to maximize the chances of extracting information than it is to provide Miranda warnings. Yesterday, apparently in response to these criticisms, Attorney General Eric Holder said that Congress should act to limit the application of Miranda in terrorism cases. The details of the administration’s proposal aren’t clear — to me, at least — but the Attorney General outlined it in this way:

If we are going to have a system that is capable of dealing in a public safety context with this new threat, I think we have to give serious consideration to at least modifying that public safety exception. And that’s one of the things that I think we’re going to be reaching out to Congress to do: to come up with a proposal that is both constitutional but that is also relevant to our time and the threat that we now face.

The extent to which Congress can determine the scope of Miranda is an obvious concern with this approach. (It’s discussed in some detail here.) But even if Congress has a role to play, the details of any legislation strike me as tricky. Will there be different rules for non-citizens like the underwear bomber than for citizens like Mr. Shahzad? How should an investigator proceed in a case where the act in question could be one of terrorism, but could also be motivated by something else? And if Miranda warnings are not given in terrorism cases, does that mean that those cases should be tried in military tribunals rather than civilian courts?

Perhaps none of these are insuperable barriers. But tomorrow, I’ll focus on how Miranda warnings are being delayed now in these cases, i.e., the public safety exception. That’s a topic that is relevant to terrorism cases but also to many, many others.

Category: Search and Seizure, Uncategorized | Tags: miranda, pubic safety exception, terrorism

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