Are Terry Stops “Custodial” for Miranda Purposes?

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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 (4th 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 (8th 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.

6 comments on “Are Terry Stops “Custodial” for Miranda Purposes?

  1. The courts have said that these officers can stop you for the purpose of an “investigative detention” (but I don’t see that anywhere in the 4th amendment, but thats how they want to do it), so going by the courts declaration, we come to the point of asking “Am I under arrest?” to give the officer an opportunity to tell you that you are. Texas law is very clear, Chapter 543 of the Transportation Code calls these traffic stops a “warrantless arrest” and that the officer may only release the person from custody if the person will sign a “promise to appear” on the citation. So in the event you are stopped (whether in your car or on foot) by police and you ask “Am I under arrest?”, there is no question that the officer is lying when he tells you that you aren’t, and most know they are lying.

    In order to establish this fact on the record you must proceed forward to the second question which is, “AM I FREE TO GO?” The officer should never be able to give you the same answer to both questions because they are a complete contradiction. You can’t be not under arrest and also not free to go. So the reason you want to follow through with this question is establish on the record that you were in fact in a custodial arrest…the courts have ruled that when a reasonable individual feels that they are not able to leave the scene of their own volition, that constitutes a custodial arrest.

  2. Jeff Nation is wrong once again. Jeff – please stop with your cut-and-paste comment on Fourth Amendment questions. It is boring. Each time you post this same comment you are simply advertising your ignorance.

    • Hi John
      I am researching this whole Custodial topic . I have seen what Jeff wrote on many YouTubes . I see you disagree . Could / would you please share why ? Thank you. chris

  3. First of all one needs to look at the Motor Vehicle laws across the country. MOtor Vehicle only regulate commerce. If you are a trucking company you need to register your vehicles and be licensed to operate them, or cab driver, tow truck company etc. Those vehicles who use the state roads and highways for profit are legally defined as a motor vehicle. See 18 USC section 31 for definition of motor vehicle. It is only when federally protected consumers register their automobile with the dmv and when they contract with the state for a drivers license that we are now regulated by the DMV. However any contract entered into through fraud can be voided. In the mean time even having the drivers license does not make your automobile a motor vehicle. Only when you consent voluntarily. Hence if you are not legally driving a motor vehicle but an automobile by legal definition how then can you be pulled over for speeding? It’s called colorable law. Having the appearance of law but not real law used to deprive a person of their rights. Furthermore traffic courts themselves and the judges that preside in them are only administrative judges and these are not judicial courts of law. They are there for one reason and that is to protect the commerce of the STATE corporation. i.e. STATE OF NORTH CAROLINA, STATE OF VIRGINIA, etc. Don’t get hung up in their tribunals which is really what they are. We are all Federally Protected Consumers and the FDCPA is the Federal Law that can protect you. These actions by the State i.e traffic tickets are nothing more than a debt as defined in the FDCPA definitions 15 USC 1692a. Don’t play there games. You are a consumer and they are debt collectors. Act accordingly.

  4. Before you say “failure to stop” — note your failure to show authorized use-of-force sans warrant!

  5. For a unanimous Court in Brendlin v. California, 551 U.S. 249 (2007), Justice Souter wrote,

    When a police officer makes a traffic stop, the driver of the car is seized within the meaning of the Fourth Amendment. The question in this case is whether the same is true of a passenger. We hold that a passenger is seized as well and so may challenge the constitutionality of the stop. (551 U.S. at 249)

    Justice Souter continued:

    Brendlin was seized from the moment Simeroth’s car came to a halt on the side of the road (551 U.S. at 263)

    —-

    There’s one Saturnian Cult Elder who just repented his way back into Heaven

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