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DutytoIntervene RealWorldDe-escalation
Interview and Interrogation Law 2022
Blue to Gold Law Enforcement Training
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ATTORNEY - SENIOR LEGAL INSTRUCTOR
BIO SNAPSHOT
2010 - PRESENT – Blue to Gold
2005 - 2016 - Nevada Law Enforcement
Juris Doctor, Summa Cum Laude
A.L.M. Masters, Government
A.L.B. Bachelors, Liberal Arts
Available at Bluetogold.com
Blue to Gold Law Enforcement Training
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STEP ONE STEP TWO
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STEP FOUR STEP THREE
Send it 3, 2, 1..One Miranda Requirements
Two Coercive Factors
Three Waivers
Four Invocations
Five Reinitiating
Six Exceptions
Agenda
Seven ViolationsAdvanced Search & Seizure
Interview and Interrogation Law
UP NEXT
Miranda
RequirementsLegal Rule The 5th Amendment is always available, but is not self-executing until the person is in-custody.
Blue to Gold Law Enforcement Training
When is Miranda Required?
01 Cops
02
Custody
03
QuestioningLegal Rule
Whether a suspect is “in-custody” depends on
whether “He has been formally arrested, or there
exists a restraint on freedom of movement of the
degree associated with a formal arrest.”
- See California v. Beheler, 463 US 1121-Pro Tip Not being “free to leave” does not automatically mean Miranda is required.
Pro Tip
Try removing the “custody” from a “detention” by:
• Telling suspect he’s not under arrest (if true)
• Remove handcuffs if safe
• Be inquisitive not accusatory (witness v suspect)
• Other efforts to reduce coercive atmosphere
- See California v. Beheler, 463 US 1121-Telling Suspect: Not Under Arrest
Advanced Search & Seizure
Miranda Custody
Factors
Told free to leave/not under arrest
Factors to Help A confession was sought
Determine Whether
Enforced isolation and handcuffs
Someone is Under
Arrest-Like Custody Number of officers present
Coercive influences*Pro Tip If the subject appears cooperative, and ready to waive, try to get a waiver. If not, and he’s not under arrest, reduce or eliminate any “coercive” factors or hold-off interview
Legal Rule
Miranda applies when the suspect
knew he was talking to an officer/agent
or a lawyer has been assigned
- See Illinois v. Perkins, 496 U.S. 292 (1990) -Murder suspect invoked his right to
counsel. His girlfriend showed up at
station and cop asked her to get a
confession, which was recorded.
- People v. Orozco -Held: Valid tactic since suspect did not know girlfriend was agent of police.
Advanced Search & Seizure
Interview & Interrogation Law
We reject the argument that Miranda
“ warnings are required whenever a
suspect is in custody … and converses
with someone who happens to be a
government agent.
U.S. Supreme CourtAdvanced Search & Seizure
Interview & Interrogation Law
Miranda forbids coercion, not mere
“ strategic deception by taking
advantage of a suspect’s misplaced
trust…
U.S. Supreme CourtLegal Rule
Remember, if the 6th Amendment right
to counsel applies, charged crimes or
uncharged crimes intertwined with
the charged crime, are off-limits
- See Illinois v. Perkins, 496 U.S. 292 (1990) -What would you do? Are exact phrases required?
Advanced Search & Seizure
Interview & Interrogation Law
If officers begin to vary from the
“ standard language, their burden of
establishing that defendants have
been adequately advised before
waiving their rights will increase
substantially.
People v. PrysockThe Other Guys Miranda
You arrest a husband for domestic
violence. You begin to read him
Miranda and he cuts you off and
says, “I know my Miranda rights! I
waive them and want to share my
side of the story.” Valid Waiver?
- See Dupont v. United States, 259 A.2d 355 (D.C. 1969) -Held: Probably not because substantial compliance is required.
Coercive Factors Waivers Invocations Reinitiating Exceptions Violations
Six Miranda IssuesCoercive Factors Waivers Invocations Reinitiating Exceptions Violations
Six Miranda IssuesLegal Rule A coerced statement cannot be used for any purpose and is actionable under 1983.
Advanced Search & Seizure
Coercive Factors
Factors
Implied leniency
Implying family repercussions
Be Careful About: You don’t plan to use testimony
Threatening more serious
crime without confession
Not respecting invocationCoercive Factors Waivers Invocations Reinitiating Exceptions Violations
Six Miranda IssuesLegal Rule A Miranda waiver must be knowing, intelligent, and voluntary.
What would you do? What about talking to the suspect about general things before you seek your waiver?
Pro Tip Quick pre-Miranda conversations are permitted: ü To build rapport ü Establish that suspect has capacity to waive ü Obviously cannot talk about anything likely to cause incriminating statements
Legal Rule “Knowing” and “intelligent” means that the suspect was fully aware of his Miranda rights and the consequence of waiving.
Advanced Search & Seizure
Miranda Waivers
Factors
Signed waiver
Native language
Knowing Factors Appeared to understand rights
Rights individually explained
Prior experience with the systemLegal Rule “Voluntary” means that the suspect waived his rights by free choice, not because of police coercion.
Advanced Search & Seizure
Miranda Waivers
Factors
Promises made
Influence of drugs or alcohol
Voluntary Factors Age
Fluency
Conversational toneAdvanced Search & Seizure
Miranda Waivers
Two Types of Waivers
Express ImpliedLegal Rule Express waivers are easy—the suspect affirmatively waivers his rights.
Legal Rule Implied waivers require articulation and are presumed invalid.
Advanced Search & Seizure
Miranda Waivers
Factors
Prior contacts
How to Articulate Immediately speaks after
Miranda
Implied Waiver
Appears eager to talk
Keeps speaking freely
Admits guiltImplied Waiver
Questions
Implied waiver?
Should read from card?Timing Issues
Questions
Complete Miranda?
Should cop seek waiver at
this point in time?Pro Tip If the suspect will be interrogated by detectives, let them get the waiver. The arresting officer should be respectful and polite! Don’t needlessly piss off the suspect so he shuts-down on detectives.
Coercive Factors Waivers Invocations Reinitiating Exceptions Violations
Six Miranda IssuesLegal Rule If a suspect properly invokes, it must be honored. Your later options depend on what right was invoked.
After a suspect unambiguously
invoked his right to remain silent
the officer asked the suspect
“Why?” and further dialog caused
the suspect to change his mind.
- People v. Peracchi -Held: The officer did not scrupulously honor the suspect’s invocation and violated Miranda.
Legal Rule Invocations must be unambiguous and unequivocal (leaves no doubt).
Advanced Search & Seizure
Interview & Interrogation Law
No invocation “if a suspect makes a
“ reference to an attorney that is
ambiguous or equivocal in that a
reasonable officer…would have
understood only that the suspect might
be invoking the right to counsel…”
U.S. Supreme CourtPro Tip Courts separate ambiguous statement into two groups: Statements made during waiver process and statements made during the interview.
Pro Tip You have an obligation to clarify ambiguous invocations during the waiver process, but not during the interview. Make sense?
Legal Rule Invocations are not crime-specific. He may not be interrogated about any crime by any officer unless a reinitiating rule applies.
Valid Invocation?
Coercive Factors Waivers Invocations Reinitiating Exceptions Violations
Six Miranda IssuesLegal Rule If suspect invokes his right to counsel, only two ways to reinitiate interrogation.
Advanced Search & Seizure
Waiver Reinitiating
Two Ways to Reinitiate
Suspect 14-Day Break
Reinitiates in “Miranda
Custody”An in-custody suspect invoked his
right to counsel. The suspect spoke
with counsel. Later, a different
agency interrogated the suspect
about a different crime and got a
waiver. Proper?
- Minnick v. Mississippi, 498 US 146 -Held: No, his attorney was not present nor had 14 days elapsed.
A suspect invoked his right to
counsel. He was convicted and
sentenced. Police then spoke to him
about an uncharged crime. Proper?
- Maryland v. Shatzer, 559 US 98 -Held: Yes, 14 days elapsed and prison sentence is not considered “Miranda custody.”
Pro Tip The rule regarding reinitiating is the same for counsel and silence and will be discussed later.
Legal Rule If suspect invokes his right to silence, only two ways to reinitiate interrogation
Advanced Search & Seizure
Waiver Reinitiating
Two Ways to Reinitiate
Suspect After “scrupulously
Reinitiates honoring” his
invocationSuspect invoked right to remain
silent. Two hours later suspect
was questioned by different
officers at different location. He
waived Miranda.
- Michigan v. Mosley -Held: The invocation was scrupulously honored. Valid waiver Tip: If you want to reinitiate for same case, wait a sleep cycle.
Legal Rule A suspect always has the option to reinitiate a general dialog about the crime, even if he invoked – he can change his mind at any time!
Pro Tip If a suspect invokes, I recommend you leave a business card and say, “If you change your mind give me a call.” Then leave.
Pro Tip If the suspect reinitiates, provide a fresh warning and obtain a written waiver.
Suspect invoked. Later, suspect said
that he didn’t like the interrogating
officer but would talk to the booking
officer.
- People v. Enraca -Held: The suspect reinitiated the interrogation.
Coercive Factors Waivers Invocations Reinitiating Exceptions Violations
Six Miranda IssuesLegal Rule The Public Safety Doctrine is an exception for legitimate safety concerns
Pro Tip Stay away from “why” questions.
Valid Public Safety Exception?
Coercive Factors Waivers Invocations Reinitiating Exceptions Violations
Six Miranda IssuesAdvanced Search & Seizure
Waiver Violations
Two Violations
Intentional UnintentionalLegal Rule Intentional violations may not be “cleansed” with a proper waiver.
Legal Rule Unintentional violations may be be “cleansed” with a proper waiver.
What would you do? Arrested suspect was not Mirandized. While searching his car you find meth in center console. Excited, you hold up baggie and ask suspect, “Is this yours?” He nods yes. Miranda violation?
Advanced Search & Seizure
Miranda Violations
Factors
Elapsed time
Things That Help Different location
Cleanse Accidental Different officer
Miranda Violations
Telling suspect previous
statements will not be used
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Before We End
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Alltrainingavailable:
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