Interrogating Tsarnaev

Tag Archives: miranda

Interrogating Tsarnaev

Posted on April 22, 2013 by Jeff Welty

Dzhokhar Tsarnaev has been arrested in connection with the Boston Marathon bombings. CNN reports that he “lies in a hospital with a gunshot wound to the side of his neck, sedated and intubated,” but that he could be put on a “sedation holiday” and brought back to consciousness to be questioned. This raises several issues.

Must he be given Miranda warnings? No. There is no free-standing requirement that police administer Miranda warnings to suspects. Such warnings generally are a prerequisite to using any subsequent statement against the suspect in court, but if authorities don’t care about the admissibility of any confession in light of what appears to be ample other evidence against Tsarnaev, the warnings need not be given. Chavez v. Martinez, 538 U.S. 760 (2003).

Does the public safety exception to Miranda apply? Not clear. Some have suggested that Tsarnaev could be questioned without Miranda warnings, and that any resulting statements could still be admissible in court under the public safety exception to the Miranda rule. I wrote about that issue three years ago in connection with the attempted Times Square bombing. The posts are here and here. To summarize, the public safety exception has been applied so far only to very limited questioning in the first moments of interaction between police and a potentially dangerous suspect, e.g., “where’s your gun?” Maybe a court would expand it to encompass protracted questioning of a terrorism suspect, but that’s far from a slam dunk. Readers interested in further exposition of the public safety exception may wish to consult Robert L. Farb, Arrest, Search, and Investigation in North Carolina 535, 587-89 (4^th ed. 2011).

Can he be held as an enemy combatant? I doubt it, but I’m not an expert. Some politicians and others have argued that Tsarnaev should be detained as an enemy combatant. For the reasons that follow, I doubt that’s proper, but this isn’t my bailiwick so I welcome additions and corrections from others who are more versed in the issue. As a starting point, this Wikipedia entry explains that the term “enemy combatant” lacks a precise legal meaning. Generally, though, it refers to a person who is detained under the laws of war, as opposed to a person detained in connection with civilian criminal law. Whether to classify Tsarnaev as an enemy combatant relates to the Miranda question because enemy combatants typically are not read Miranda rights, but it goes beyond that question insofar as they are typically tried, if at all, in military tribunals rather than civilian courts. To qualify as an enemy combatant, one generally must be a member or supporter of an enemy force, such as Al Qaeda or the Taliban. So far, it appears that Tsarnaev isn’t. The New York Times reports that “officials said they were increasingly certain that the two suspects had acted on their own,” and also states that “there is no known evidence suggesting” that Tsarnaev is linked to Al Qaeda or any other extremist group. Even if Tsarnaev can fairly be described as a member or supporter of an enemy force, there is a potential constitutional barrier to holding him as an enemy combatant. He is a naturalized American citizen, and while American citizens captured overseas may be held as enemy combatants under Hamdi v. Rumsfeld, 542 U.S. 507 (2004), it is not clear whether an American citizen captured in the United States may be.

However the questioning of Tsarnaev proceeds, I hope he decides to tell the police what he knows. It wouldn’t come close to making amends for what he appears to have done, of course, but it might help prevent similar tragedies in the future.

Category: Procedure, Uncategorized | Tags: boston marathon, enemy combatants, miranda, public safety exception, tsarnaev

Rights Upon Arrest

Posted on September 27, 2012 by Jeff Welty

An Egyptian-American activist/columnist/media personality named Mona Eltahawy was recently arrested in New York while defacing a pro-Israel subway advertisement. The entire incident was captured on video and can be seen here.

Over at the Volokh Conspiracy, Professor Orin Kerr focuses on Ms. Eltahawy’s demand that the arresting officer tell her what she was being arrested for. (As far as I can tell from the video, the officer didn’t respond to the demand.) As Professor Kerr puts it: “On TV, the officer announces the arrest, announces the crime of arrest, and then reads the suspect Miranda rights. But these are not actually constitutionally required.” In Devenpeck v. Alford, 543 U.S. 146 (2004), the Court stated that “[w]hile it is assuredly good police practice to inform a person of the reason for his arrest at the time he is taken into custody, we have never held that to be constitutionally required.” And an arrestee must be informed of his or her Miranda rights only if the police want to undertake custodial interrogation, which, in many cases, is not on the officers’ immediate post-arrest agenda.

It’s a good discussion that clears up some common misapprehensions about the law. But I should add that in North Carolina, G.S. 15A-401(c)(1)c states that an arresting officer must, “[a]s promptly as is reasonable under the circumstances, inform the arrested person of the cause of the arrest, unless the cause appears to be evident.” The provision hasn’t been cited or discussed much, but at least one case suggests that an officer normally should answer a direct question about the basis of the arrest. In State v. Ladd, 308 N.C. 272 (1983), an officer arrested the defendant and the defendant asked, “What for?” The officer responded, “You know why.” The court stated that “the officer’s indirect response to defendant’s query as to why he was being arrested was in violation of G.S. 15A–401(c)(2)c” and that the officer “should have directly and truthfully answered defendant’s question at the time it was asked.” See generally State v. Kinch, 314 N.C. 99 (1985) (“Last, defendant [argues] that he was not read his ‘rights’ when he was arrested. It is not necessary to read a defendant the Miranda rights in order to make a lawful arrest. Defendant was advised by the arresting officers that he was being arrested on a charge of rape in compliance with N.C.G.S. 15A-401(c)(2)[c].”).

Officers, what’s your practice regarding when you notify an arrestee of the basis of the arrest? What do you think of the conduct depicted in the video? (The officer’s conduct, I mean. Ms. Eltahawy’s conduct really speaks for itself.)

Category: Procedure, Uncategorized | Tags: arrest, eltahawy, kerr, miranda

Interrogation in Jail or Prison Isn’t Always “Custodial”

Posted on February 22, 2012 by Jeff Welty

Under Miranda v. Arizona, 384 U.S. 436 (1966), before an officer may begin a custodial interrogation of a suspect, the officer must advise the suspect of certain rights, such as the right to remain silent. One might think that when an officer questions a jail or prison inmate, the setting is necessarily custodial. The case of Mathis v. United States, 391 U. S. 1 (1968), can be read to support that conclusion. However, the recent case of Maryland v. Shatzer, __ U.S. __, 130 S. Ct. 1213 (2010), which I discussed here, suggested otherwise. Yesterday, the Court addressed the issue head on in Howes v. Fields.

The facts of the case, drawn from the Court’s syllabus, are as follows:

Fields, a Michigan [jail inmate, who was serving a sentence as opposed to awaiting trial], was escorted from his . . . cell by a corrections officer to a conference room where he was questioned by two sheriff’s deputies about [a sex crime he had allegedly committed against a child] before coming to [jail]. At no time was Fields given Miranda warnings or advised that he did not have to speak with the deputies. As relevant here: Fields was questioned for between five and seven hours; Fields was told more than once that he was free to leave and return to his cell; the deputies were armed, but Fields remained free of restraints; the conference room door was sometimes open and sometimes shut; several times during the interview Fields stated that he no longer wanted to talk to the deputies, but he did not ask to go back to his cell; after Fields confessed and the interview concluded, he had to wait an additional 20 minutes for an escort and returned to his cell well after the hour when he generally retired.

The defendant was subsequently charged with a sex offense. He moved to suppress his statements, alleging a Miranda violation, but the trial court denied the motion, finding that he was not in custody during the interview. The defendant was convicted, and his appeals in state court were unsuccessful. He sought, and initially obtained, federal habeas relief. The Supreme Court then reversed, agreeing with the state courts that the defendant was not in custody when he was questioned.

In an opinion written by Justice Alito, the Court specifically rejected the lower federal courts’ conclusion that an inmate is always in custody when questioned in private about crimes allegedly committed outside jail or prison. For three reasons, it rejected the idea that incarceration always carries with it the pressures Miranda was designed to combat:

First, questioning a person who is already serving a prison term does not generally involve the shock that very often accompanies arrest. . . . Second, a prisoner, unlike a person who has not been sentenced to a term of incarceration, is unlikely to be lured into speaking by a longing for prompt release. . . . Third, a prisoner, unlike a person who has not been convicted and sentenced, knows that the law enforcement officers who question him probably lack the authority to affect the duration of his sentence.

Applying a totality of the circumstances analysis, the Court found that the defendant was not in custody. It especially emphasized that he “was told at the outset of the interrogation, and was reminded again thereafter, that he could leave and go back to his cell whenever he wanted,” but also noted that the conference room door was sometimes open, that the defendant was not restrained, and that he was offered food and drink. The Court determined that a reasonable person in such circumstances would have felt comfortable terminating the interview and asking to return to his cell.

Justice Ginsburg, joined by Justices Breyer and Sotomayor, dissented. (Technically, they concurred in part, but the partial concurrence concerns federal habeas issues I’ve omitted because they’re not relevant to the central issue.) She criticized the majority’s “custody within custody” approach, and argued that the defendant was interrogated in a police-dominated environment and should have been given Miranda warnings. She highlighted the fact that the defendant’s statements that he did not want to talk to the officers were ignored.

The basic holding of Fields – that incarceration isn’t always “custody” for Miranda purposes – isn’t surprising after Shatzer, but it is still significant. Note, however, that Fields repeatedly distinguishes inmates who are serving a sentence from those in pretrial custody. There’s nothing in Fields to support the idea that a pretrial detainee isn’t in custody, or that pretrial incarceration constitutes a “break in custody” for Shatzer purposes.

Category: Search and Seizure, Uncategorized | Tags: break in custody, custody, fields, inmates, miranda, shatzer

Use of a Defendant’s Pre- and Post-Arrest Silence at Trial

Posted on February 13, 2012 by Jessica Smith

The N.C. Court of Appeals’ recent decision in State v. Harrison raises an issue that arises with some frequency in N.C. criminal trials: When can the State use evidence of a defendant’s pre- and post-arrest silence at trial? In this post I’ll address that issue.

In Harrison, the defendant was convicted of larceny of a dog. He appealed arguing, in part, that the trial court erred by allowing the State to use his pre- and post-arrest silence as substantive evidence of guilt, violating his constitutional right to remain silent. The defendant pointed to two instances that occurred at trial. First, he noted, when talking about his initial interview of the defendant, a law enforcement officer stated: “So, I continued to interview with him. He provided me – he denied any involvement, wished to give me no statement, written or verbal.” Second, the defendant pointed to the officer’s testimony about the defendant’s arrest. In response to the prosecutor’s question about whether the defendant made any statements after the warrant was served, the officer responded: “After he was mirandized [sic], he waived his rights and provided no further verbal or written statements.”

The court began its analysis by setting out the rules governing the use of a defendant’s pre- and post-arrest silence at trial. It noted that a defendant’s pre-arrest silence and post-arrest, pre-Miranda warnings silence may not be used as substantive evidence of guilt, but may be used to impeach the defendant by suggesting that the defendant’s prior silence is inconsistent with his or her present statements at trial. However, a defendant’s post-arrest, post-Miranda warnings silence may not be used for any purpose.

Applying these rules, the court noted that the defendant testified after the officer so the State could not use the officer’s statement for impeachment. Also, the court noted, the officer’s testimony was admitted as substantive evidence during the State’s case in chief. Thus, it concluded it was error for the trial court to admit both statements.

As noted above, the issue arises with some frequency at trial. See, e.g., State v. Jackson, __ N.C. App. __, 691 S.E.2d 133 (2010) (although the State may use a defendant’s pre-arrest silence for impeachment purposes, once the defendant has been arrested and advised of his or her Miranda rights, use of the defendant’s silence violates the right against self-incrimination); State v. Mendoza, __ N.C. App. __, 698 S.E.2d 170 (2010) (the trial court erred by allowing the State to introduce evidence, during its case in chief, of the defendant’s pre-arrest and post-arrest, pre-Miranda warnings silence). If the issue comes up in one of your cases, here’s a handy chart to keep the rules straight:

	For Impeachment	As Substantive Evidence
Post-Arrest, Post-Miranda	May not be used	May not be used
Post-Arrest, No Miranda Warnings Given	May be used	May not be used
Pre-Arrest	May be used	May not be used

Category: Evidence, Procedure, Uncategorized | Tags: harrison, impeachment, miranda, right to remain silent, silence

The Law of Interrogation

Posted on December 6, 2011 by Jeff Welty

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

United States Supreme Court to Review In re J.D.B.

Posted on November 2, 2010 by Jeff Welty

I blogged here about In re J.D.B., a juvenile case in which the North Carolina Supreme Court held that a 13-year-old, questioned in an unlocked school conference room by police officers and an assistant principal about the student’s role in several residential break-ins, was not in custody for Miranda purposes. The court stated that “[f]or a student in the school setting to be deemed in custody, law enforcement must subject the student to restraint on freedom of movement that goes well beyond the limitations that are characteristic of the school environment in general.” It found no such additional restraint. Nor did the court accept the juvenile’s argument that his youth and the fact that he was a special education student were relevant to whether or not he was in custody. it “decline[d] to extend the test for custody to include consideration of [personal characteristics, such as] the age and academic standing of an individual subjected to questioning by police.”

It’s a fascinating case that divided the state supreme court and the court of appeals. According to this order, entered yesterday, the United States Supreme Court is going to review it. The question presented in the petition for certiorari is as follows:

WHETHER A COURT MAY CONSIDER A JUVENILE’S AGE IN A MIRANDA CUSTODY ANALYSIS IN EVALUATING THE TOTALITY OF THE CIRCUMSTANCES AND DETERMINING WHETHER A REASONABLE PERSON IN THE JUVENILE’S POSITION WOULD HAVE FELT HE OR SHE WAS NOT FREE TO TERMINATE POLICE QUESTIONING AND LEAVE?

In an interesting coincidence, the court of appeals just decided In re K.D.L., another juvenile Miranda case with similar facts. The court properly acknowledged In re J.D.B., though it characterized the relevance of personal characteristics to the custody inquiry as the subject of a “split of authority,” and distinguished In re J.D.B. in a way that might be read as expressing polite skepticism about some of the conclusions reached in that case. Stay tuned for further developments.

Category: Search and Seizure, Uncategorized | Tags: custody, J.D.B., juvenile, miranda

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

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