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Main Page non custodial interrogation and Miranda
(Click here to view the original thread on the MassCops Message Board)

Posted by: union1

Im looking for a link or some links to some case law for our wonderfull state regarding Non Custodial Interrogation.

Also, send on some opinions on this situation.

Law Enforcement Officer suspects a NON arrestable misdemenor occuring in his/her presence. LEO begins questioning and with statements made by suspect finds violation of said law. CAN/WILL statements made by suspect be inadmissable due to failure to advise Miranda?

Posted by: PBC FL Cop

Is the suspect free to leave??

Posted by: union1

Quote:

Originally Posted by PBC FL Cop

Is the suspect free to leave??

Call it an FIO.. So yes

Posted by: PBC FL Cop

If the subject is free to leave and not subject to arrest, Miranda should not apply, all statements should be admissible.

Posted by: phuzz01

Even if the subject is technically free to leave, the standard is whether a reasonable person would feel that they were free to leave in those circumstances. So, even if the person is not subject to arrest, custody for 4th and 5th amendment purposes could still occur depending on a number of factors (such as # of officers, path to leave blocked, weapons brandished, told that they were free to leave, etc.)

Posted by: csauce777

Quote:

Originally Posted by union1

Law Enforcement Officer suspects a NON arrestable misdemenor occuring in his/her presence. LEO begins questioning and with statements made by suspect finds violation of said law. CAN/WILL statements made by suspect be inadmissable due to failure to advise Miranda?

Rob,

Heres one I just had last week in court. Last year I'm doing traffic enforcement and I see a truck pass by me and I recognize the operator as a local dirt bag. I run the plate and it comes back he is suspended. I try to catch up, but he is gone by the time the listing comes back. A couple hours later I go by his house and the truck is back. I knock and ask him to come out and talk. He comes out and I flat out ask him where he was going when he drove by me (no miranda). He says, "I went to the lumber yard." I said ok, hang on. I then criminal app'd him for operating after suspension subsequent. He has a slew of other stuff since then and is facing time so it actually goes to trial last week, however he pleads out because he's already in custody for new cases with us and gets concurrent time. Previously, I had heard rumblings of a motion to exclude the driving admission (he now says it wasnt him driving even though I saw him from 10 feet away), but I think he knew the motion would get squashed so it went away, as did he.

Anyway, I know, alot of typing for a BS suspended license case, but it kind of seemed similar to what you were asking about.

Posted by: Sgt K

Traditionally speaking, Miranda is triggered when there simultaneously exists 1) Custody AND 2) interrogation or it's functional equivalent. If one of these factors are missing Miranda would not apply under a 5th Amendment or Article 12 analysis.
However, although asking questions of someone not in custody and merely a subject of an f.i.o. would not necessarily be violative of the 5th Amendment, it very well could be violative of the Due Process Clause of the 14th Amendment.
Massachusetts recognizes the "Humane Practice Doctrine" and it's applicability to the "voluntariness" of confessions. Example, operator hits fixed object, sustains injuries, and is transported via EMS to local e.r. Upon your arrival at the e.r., you find operator c-spine immobolized. As you stand over the subject, you make several observations of intoxication. Based on those observations, you begin a long line of questioning about operation, alcohol intake, and the circumstances surrounding the crash. With that information, you summon the individual for O.U.I.-L.
Certainly, the operator wasn't in "custody" for purposes of the 5th but an l.e.o. can't conduct a line of questioning designed to seek incriminating evidence and then use all of that testimony against the operator without first supplying Miranda warnings.
In summation, if you are getting information from a party in order to assist in prosecution think about obtaining a knowing and voluntary waiver of Miranda first. If you are just obtaining foundational questions to see if the person is involved in criminal activity (such as "where are you coming from?") Miranda probably wouldn't apply. Hope that this helps a little. As always, stay healthy and safe.

Posted by: PBC FL Cop

Looks like someone's studying for the bar

Posted by: Sgt K

Yes....but I won't sit until Feb. of 2008!

Posted by: union1

Alright, ill give specifics. Just to qualify, my full time gig is NOT as a Police Officer however our primary duty is enforcement of ONE criminal law. Call it what you will, it may or may not be considered Law Enforcement

I pull up on a crew of workers whom I suspect is in violation of a criminal law. I approach, show my badge and Identification and at that point begin questioning the business owner. The questions for this business owner can and will be used in order to not only prove the violation of said law but also used in prosecution of the business owner in criminal court. Now, I never flatly tell the business owner he/she is free to leave but I also never tell them they are under arrest, nor is this law arrestable.

im making the argument to a co-worker that a resonable prudent person would assume with our questioning and their being the owner of the business that is now under investigation that they are NOT free to leave. I am making the argument that these folks should be mirandized since they are 1, suspects in a criminal investigation 2, their statements will be used to determine guilt or innocence AND used against them in a court and 3, as stated I dont feel that they are aware that they can leave.

Now to throw a loop into this, if a suspect does leave without answering any questions, they face a fine immediately and closure of their business/livelyhood. With these circumstances does anyone agree with me that Miranda is nessesary?

Finaly, there is NO case law regarding Miranda in our specific circumstances as we are not Police Officers nor do we have arrest powers however this debate has simmered since I started this job AND word has it a defendant will be filing a motion to supress on this very fact.

Posted by: csauce777

Yeah...I can see how it could be complicated. If it were not for the fact that you are working under the authority of a governmental agency assigned to investigate and prosecute violations of said crime, I would argue that there's no way miranda applies here. If you were wearing your police officer "hat" that day, then obviously miranda would likely apply, while if you were a completely private party, it definately wouldnt.

At my police job, I obviously am subject to miranda...however in my many years of doing retail loss prevention, I have detained (not free to leave) hundreds of shoplifting, fraud, etc. suspects. I ask them many questions, as well as do cursory searches for stolen merchandise, inevitably ending up locating other contraband including weapons, narcotics, etc, and have yet to have evidence I located, be excluded through a motion. Additionally, I have testified in court about interviews of dishonest employees, and shoplifters alike, and never have given miranda even though the requirements are technically met (custody/interrogation). ADA's have introduced written statements from theft suspects and thieving employees that were never given miranda, and they all were allowed in.

I guess my point in another long winded rambling session, is that like you said, with no case law on your agency being required to give miranda, it could be tricky...

Posted by: Sgt K

Miranda warnings are given by individuals acting in a governmental capacity or in a quasi-governmental capacity.
A loss prevention officer working in a purely private setting is not under any Miranda requirements and places him/herself at the peril for civil court action anytime he or she goes outside of the traditional loss prevention function.

Lastly, please delete "mirandized" from your vocabulary and writings. The word doesn't exist grammatically. Mr. Miranda was a defendant in a criminal case against the State of Arizona. How his name ever became mutated into an action verb is beyond me!

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