Monder Law Group - News
Answer Police Questions
The primary area of challenge to the admissibility of statements of the defendant is to those statements made in response to initial questioning by the police just after the defendant has been stopped. Generally, the first question asked by the cop when he smells alcohol on the defendant’s breath is, “Have you been drinking?” The answer is often a significant factor in the prosecution’s case.
Miranda warnings are rarely given before the question is asked. Admissibility then turns on whether or not they should have been given, and that issue turns on whether or not the defendant could have objectively believed he was in custody. Thus the custodial status of the defendant, and the necessary analysis of when probable cause arose to arrest the defendant, is a fact which must be determined preliminary to any decision about suppressing the evidence. Such an analysis falls squarely into the situation dealt with by Evid. C. §402, which allows the determination of a fact which is preliminary to a decision to suppress evidence (People v. Lopez (1985) 163 CA3d 602, 209 CR 575).
Berkemer v. McCarty (1984) 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317, was a drunk driving case from Ohio. The U.S. Supreme Court held that anyone actually arrested for any crime, including a misdemeanor, is in custody; but, when a person is merely detained for the purpose of issuing a traffic citation for an infraction, they are not in custody. Pennsylvania v. Bruder (1988) 488 U.S. 9, 109 S.Ct. 205, 102 L.Ed.2d 172, was in agreement.
In Green v. Superior Court (1985) 40 C3d 126, 219 CR 186, the California Supreme Court followed Berkemer and stated that, in determining whether or not a defendant is “in custody” for purposes of the Miranda warning requirement, the “ultimate inquiry is simply whether there is a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest…. The test, of course, is an objective one— how a reasonable man in the suspect’s position would have understood his situation…. Would such a person feel that he has been subjected to restraints comparable to those associated with a formal arrest? If so, he was ‘in custody’ and entitled to Miranda warnings before being interrogated.”
Four years after Green, in People v. Boyer (1989) 48 C3d 247, 256 CR 96, the California Supreme Court stated:
In deciding the custody issue, the totality of circumstances is relevant, and no one factor is dispositive. However, the most important considerations include (1) the site of the interrogation, (2) whether the investigation has focused on the subject, (3) whether the objective indicia of arrest are present, and (4) the length and form of questioning.
Later, the California Supreme Court tried to change this objective test into one incorporating into factor number (2) (whether the investigation has focused on the subject), the undisclosed intention of the cop to arrest. But they were resoundingly chastised by the U.S. Supreme Court in Stansbury v. California (1994) 511 U.S. 318, 114 S.Ct. 1526, 128 L.Ed.2d 293, which reaffirmed that “custody” is determined by objective circumstances known to the defendant, not the undisclosed intentions of the cops.
So the rule is now clear: The statements of the defendant are inadmissible without Miranda warnings if the defendant is in “custody.” And that is determined by an objective test, based upon an application of the factors mentioned above to the information known to the defendant.
You may be successful in having the defendant’s statements suppressed in a drunk driving case where the defendant was stopped while driving under suspension. Such a person would quickly have a subjective belief, which shortly becomes objectively reasonable, that he is under arrest.
Numerous California opinions have applied Berkemer. [See People v. Ceccone (1968) 260 CA2d 886, 67 CR 499; Ramona R. v. Superior Court (1985) 37 C3d 802, 210 CR 204; and People v. Lopez (1985) 163 CA3d 602, 209 CR 575.] But in People v. Bellomo (1992) 10 CA4th 195, 10 CR2d 782, custody was never really an issue. The court held that Miranda advice was not needed because the defendant was sitting on the curb near his wrecked auto, had not yet been arrested, and the questions were not accusatory.
In People v. Forster (1994) 29 CA4th 1746, 35 CR2d 705, the defendant’s statements made without Miranda advice followed a one-hour detention in the San Ysidro customs office, but were not suppressible. The opinion held that the situation was not reasonably perceivable by the defendant as “in custody” for Miranda purposes. This despite the fact that the U.S. Customs Inspector who greeted the defendant upon entry to the U.S. at the No. 5 Inspection Lane had, “asked Forster to step out of his vehicle and accompanied him to the customs security office, where [he] subjected Forster to a routine pat-down search and directed him to sit on a bench.” I guess he was actually free to leave, since the customs agent had only asked him to wait around. Remember that next time you cross the border.
If you have questions about whether to answer police questions contact San Diego Defense Attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Attorney
