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Miranda: ?Interrogation?


September 03, 2000
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Miranda: ?Interrogation?

(Reprinted with the permission of the Alameda County District Attorney’s Office)

“It is elementary that Miranda warnings are required only when a suspect is interrogated.”

On television and in motion pictures, it seems like officers are always Mirandizing somebody. They especially like to Mirandize suspects immediately after they arrest them, preferably while putting on the cuffs. This is, of course, simply a device to dramatize the arrest. It’s called melodrama. In real life, it would probably be called lousy police work.

This is because officers must obtain a Miranda waiver only when they are going to interrogate a suspect who is in custody. In other words, unless the arresting officer intends to question the suspect immediately, Miranda warnings are senseless. As the United States Supreme Court observed, “It is clear that the special procedural safeguards outlined in Miranda are required not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation.”

But what is “interrogation” as the term is used in Miranda? This is an important question for a number of reasons. For one thing, knowing what constitutes “interrogation” will help officers determine when they must provide a Miranda warning. Just as importantly, it will enable officers to determine when a warning is not necessary, thus reducing the number of gratuitous and premature warnings that serve no purpose other than to give suspects one more opportunity to invoke.

What is “Interrogation”?

In the context of Miranda, the word “interrogation” has a rather broad meaning. It includes, to be sure, any direct questioning of a suspect about a crime under investigation. But it also includes various forms of indirect or subtle questioning that are considered the “functional equivalent” of direct questioning.

What is the “functional equivalent” of direct questioning? It is any words or actions by an officer that the officer should have known were reasonably likely to elicit an incriminating response. In the words of the United States Supreme Court, “A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect amounts to interrogation.”

In determining whether an officer’s words or actions constituted the functional equivalent of direct questioning, it will be helpful to keep the following principles in mind:

REASONABLY LIKELY: Interrogation does not result merely because there was a “possibility” the suspect would incriminate himself, or because officers “hoped” he would. Instead, interrogation occurs only if officers should have known an incriminating response was reasonably likely.

OFFICER’S INTENT: Interrogation will probably result if the officer actually intended that his words or conduct would elicit an incriminating response because it indicates the officer was aware that an incriminating response was reasonably likely.

WHAT OFFICERS KNEW ABOUT THE SUSPECT: Interrogation will likely be found if an officer was aware of-and exploited-a suspect’s unusual weakness or fear, or intentionally introduced a topic that the officer knew would have a strong emotional impact on the suspect. As the United States Supreme Court explained, “Any knowledge the police may have had concerning the unusual susceptibility of a defendant to a particular form of persuasion might be an important factor in determining whether the police should have known that their words or actions were reasonably likely to elicit an incriminating response.”

LINK BETWEEN THE QUESTION AND CRIME: A question is more apt to be deemed interrogation if there was direct link between the question and the crime under investigation. Said the California Supreme Court, “The relationship of the question asked to the crime suspected is highly relevant.”

ACCUSATIONS: Accusing a suspect of committing a crime is almost always interrogation because an incriminating response is, in most cases, reasonably foreseeable.11a For example, in In re Albert R. an officer who was transporting a car thief named Albert to jail told him it was “a cold thing you did” selling a stolen car to a friend. Albert responded, “Yes, but I made the money last.” In ruling the officer’s statement was interrogation, the court said, “[The officer’s] continued discussion with Albert, including a direct accusation that Albert had knowingly sold to [his friend] a stolen car and describing it as a cold-blooded act, constituted words that [the officer] should have known were reasonably likely to elicit an incriminating statement.”

Interrogation may also result if officers arrange for someone else to make the accusation in their presence. For example, in People v. Stewart an officer put two robbery suspects, Stewart and Clements, in an interrogation room, then had Clements read aloud his confession in which he incriminated Stewart. The court ruled this was interrogation of Stewart under Miranda because, “When police officers confront an accused with an accusatory statement which on its face requires an explanation, they can be seeking no other result but an oral acknowledgment of the truth of the statement by the accused or the eventual court use of his silence as an implied admission.”


INDIRECT INTERROGATION

Although most interrogation occurs when officers directly question a suspect, the courts recognize there are more subtle methods of obtaining incriminating statements. That is why the term “interrogation” has such a broad meaning in the context of Miranda. As the United States Supreme Court observed, “To limit the ambit of Miranda to express questioning would place a premium on the ingenuity of the police to devise methods of indirect interrogation, rather than to implement the plain mandate of Miranda.”

Conduct as interrogation

Although it has not happened often, it is possible that an officer’s non-verbal conduct in the presence of a suspect may be deemed interrogation. This occurred in the case of People v. Taylor where the Court of Appeal ruled that an officer effectively interrogated Taylor when, after a high-speed chase, the officer showed him a piece of jewelry he had attempted to hide from officers. On the other hand, in People v. Siripongs the court ruled interrogation did not occur when an officer who was inventorying the contents of a suspect’s wallet in his presence merely pulled out a credit card that happened to be stolen.

An interesting example of conduct as interrogation is the so-called “reverse lineup,” an old tactic where officers would sometimes stage a physical lineup for a serious but entirely fictitious crime in which phony “witnesses” would positively identify the defendant as the perpetrator. When the defendant heard himself identified as the perpetrator of a crime he did not commit, he would sometimes be motivated to confess to a crime he did commit.

The so-called “good cop-bad cop” routine would also likely be deemed interrogation. Although the routine has many variations, it usually involves having one officer establish himself as a hostile and obnoxious enemy of the suspect, while his partner becomes the suspect’s kind and understanding friend. The net result is that the suspect eventually confesses in order to keep the “bad cop” away, or to do his friend, the “good cop,” a favor.

In contrast, the courts have ruled the following conduct was not interrogation: permitting a suspect to speak with his wife only if he did so in the presence of an officer , permitting a suspect to speak with his father in an interview room that had been bugged , requiring a prisoner to travel a long distance with an officer (during which time the prisoner made incriminating statements) when the trip was reasonably necessary.

Statements as interrogation

An officer’s statement in the presence of a suspect may be deemed interrogation-even if it did not call for a reply-if it was reasonably likely to elicit an incriminating response. Examples include an officer’s lecture, speech, announcement, or conversation with another officer in the suspect’s presence. The following are examples:

OFFICER’S MONOLOGUE: In People v. Boyer an officer’s monologue was deemed interrogation when the officer essentially accused the defendant of murder and announced that investigators had found a witness who could prove he was lying.

OFFICER’S SPEECH: A classic example of an officer’s use of a statement as interrogation is found in the case of Brewer v. Williams –the so-called “Christian Burial Speech” case.

Williams was arrested in Davenport, Iowa on charges he had murdered a 10-year old Des Moines girl whose body had not been recovered. As two police detectives were transporting Williams back to Des Moines one winter day, one of them said to him, “I want to give you something to think about while we’re traveling down the road.” The officer, who was aware that Williams was deeply religious, told him that unless the girl’s body was found soon it would be covered with snow and would not be found in time to give her a proper “Christian” burial.” Said the officer, “I feel that you yourself are the only person that knows where this little girl’s body is, and if you get a snow on top of it you yourself may be unable to find it.” Williams responded to the “speech” by leading the officers to the girl’s body.

In ruling the officer’s words were, in effect, “interrogation,” the United Stated Supreme Court said, “There can be no serious doubt [that the officer] deliberately and designedly set out to elicit information from Williams just as surely as-and perhaps more effectively than-if he had formally interrogated him.”

The Court’s ruling was based largely on the fact the detective intentionally exploited William’s religious beliefs. This was important because, as noted earlier, interrogation usually results if officers exploited a suspect’s known weakness of fears, or if officers intentionally introduced a certain topic that they knew would have a strong emotional impact on the suspect.

CONVERSATION BETWEEN OFFICERS: A conversation between two or more officers in a suspect’s presence may constitute interrogation if the conversation was related to the suspect’s case. However, it appears that something more than a brief conversation is required.

For example, in Rhode Island v. Innis two officers were transporting the defendant to jail after he had been arrested for an armed robbery and murder that had occurred a few hours earlier. The officers were aware that a sawed-off shotgun that was used on the crimes had not been recovered. During the trip, the officers had a conversation which, according to their testimony, went something like this:

Officer Gleckman: I was talking back and forth with Patrolman McKenna stating that I frequent this area [where Innis was arrested] while on patrol and that because a school for handicapped children is located nearby, there’s a lot of handicapped children running around in this area, and God forbid one of them might find a weapon with shells and they might hurt themselves.

Officer McKenna: I more or less concurred with him that it was a safety factor and that we should, you know, continue to search for the weapon.

Officer Gleckman: [I]t would be too bad if the little girl would pick up the gun, maybe kill herself.

Innis then interrupted the conversation and led officers to the gun, saying he “wanted to get the gun out of the way because of the kids in the area in the school.”

On appeal, the United Stated Supreme Court rejected Innis’s argument that the conversation constituted interrogation. The Court’s ruling was based on two important differences between the facts in Innis and Williams. First, in Innis the conversation “consisted of no more than a few offhand remarks,” while in Williams the detective delivered a rather lengthy “speech.” Second, the officers were not aware that Innis was “peculiarly susceptible to an appeal to his conscience concerning the safety of handicapped children.”

COMPARE: BRIEF STATEMENT OF FACTS: The United Stated Supreme Court has indicated that “interrogation” does not necessarily result when an officer merely informs a person of the facts of an investigation into a crime in which the person is a suspect. The Court made this statement in the case of Arizona v. Roberson where it noted that if a suspect invoked his Miranda rights as to one crime, officers were free to inform him of the facts of their investigation into a second crime in which he was a suspect, “as long as such communication does not constitute interrogation.” In other words, the Court seemed to be saying that interrogation does not necessarily result when officers merely recite facts to a suspect, even if the facts pertain to a crime the suspect is believed to have committed.

It is apparent, however, that the line between a recitation of facts and interrogation may often be blurred. A recitation of facts would presumably include information that connects the suspect to the crime and would, therefore, be somewhat accusatory. For example, in People v. Boyer the California Supreme Court ruled that an officer interrogated a murder suspect who had invoked his rights when the officer informed him of the status of his investigation including the discovery of a witness who disputed significant parts of the suspect’s story. Said the court, “[B]y confronting defendant once again with a discrepancy in his story, [the officer] effectively invited defendant to make an incriminating response.”

Although the courts in California have not directly addressed the issue of when a recitation of facts becomes interrogation, it seems likely that interrogation would not result if the officer’s recitation of facts was accurate, brief and dispassionate, and there was no indication of police coercion or the use of aggressive interrogation techniques.


“NEUTRAL” QUESTIONS

A question that is not reasonably likely to elicit an incriminating response is known as a “neutral question.” This means a suspect’s response to a “neutral question” cannot be suppressed on Miranda grounds. As the California Supreme Court observed, “Not every question directed by an officer to a person in custody amounts of an ‘interrogation’ requiring Miranda warnings. The standard is whether under all the circumstances involved in a given case, the questions are reasonably likely to elicit an incriminating response from the suspect.”

The following are the most common types of neutral questions.

Questioning a “witness”

When a person is in custody for one crime and officers want to question him as a witness in another case, the officers’ questions are, by their very nature, not interrogation. This is because an incriminating response is not reasonably likely when officers are questioning a person who was reasonably believed to be merely a witness to a crime.

For example, in People v. Wader, the defendant was arrested in Los Angeles County on warrant out of San Bernardino County. While driving Wader back to San Bernardino County, a sheriff’s sergeant happened to ask him if he knew the whereabouts of Frank Hillhouse who was wanted for murder. The sergeant asked the question because Wader and Hillhouse were known associates. Wader responded by saying he had heard that Hillhouse was involved in the shooting of a woman. The next day, the sergeant went to the jail and questioned Wader about Hillhouse. During the conversation, Wader said that Hillhouse had a .357 magnum gun and that he used it to shoot “an old white broad.”

Wader, who was later charged with murdering the woman and convicted, argued that the sergeant’s questions constituted “interrogation” and therefore his statements were obtained in violation of Miranda. The California Supreme Court disagreed, saying, “[The sergeant’s] inquiry regarding the whereabouts of Hillhouse was designed to elicit information about Hillhouse, not defendant. There is no indication in the record before us that the inquiry was at all relevant to any charge for which defendant was then in custody or any crime of which he was then suspected. Accordingly, [the sergeant] was not required to advise defendant of his rights under Miranda….”

Casual conversation

It is not uncommon for officers and prisoners to have casual conversations or engage in “small talk.” Although it is possible that the prisoner may respond by making an incriminating statement, in most cases such a response is not reasonably foreseeable. Consequently, when such a conversation was truly “casual”-not merely subterfuge-it will not be deemed interrogation.

For example, in People v. Claxton a supervisor at juvenile hall asked Claxton, a 17-year old murder suspect, “What did you get yourself into?” Claxton responded by making an incriminating statement. The court ruled the question was not interrogation because, “In the patois of the streets of jailhouse, the inquiry is tantamount to ‘What’s up?’ or ‘What are you in for?’ The question did not require an inculpatory reply, nor does anything in the record suggest that [supervisor] expected one.”

In People v. Lewis, another case involving a casual conversation, the defendant was stopped when officers saw him driving a stolen car whose owner had been murdered. After Lewis was placed in the back seat of a patrol car, he saw a sergeant whom he knew. Lewis asked the sergeant, “What are they going to do with my car?” The sergeant said it was being impounded because it had been used in a crime. In response, Lewis claimed he bought it from “an elderly gentleman.” The sergeant commented that it was a nice car, adding, “Man, you must have a good job.” Lewis responded that he got the money for the car in Las Vegas.

On appeal, the court ruled the sergeant’s comments did not constitute interrogation. Said the court, “The record indicated that this was a casual conversation between two acquaintances. Defendant initiated the conversation and was very concerned about what would happen to his car.”

Responding to questions

It is not uncommon for suspects in custody to ask questions of officers. If the question pertains to a crime, the officer’s response may elicit an incriminating statement. Nevertheless, the courts have consistently ruled it is not interrogation when an officer merely answers a suspect’s question if, (1) the question was volunteered, (2) the officer’s answer was brief and to the point, and (3) there were no indications of coercion. Examples:

? A Placer County sheriff’s detective was returning a murder suspect named Mickey to the U.S. from Japan. During the five-hour flight from Japan to Hawaii, the detective and Mickey had several casual conversations concerning such subjects as their families, hobbies, politics, and the economy. About three hours into the flight Mickey asked if the two murder victims were buried together. The detective replied that the victims’ bodies were cremated and their ashes scattered in the High Sierra. At that point, Mickey “suffered an emotional lapse” and made several spontaneous statements that were used against him at his trial. COURT: NOT INTERROGATION. “Plainly, there was no express questioning….Nor, in our view, were there any words or actions [by the detective that he] should have known were reasonably likely to elicit an incriminating response.”

? Stephens, who was in jail on robbery charges, asked to speak with a certain detective. When the detective arrived at the jail, Stephens asked him why the DA was offering him 16 years. The detective said it was probably because of the seriousness of the crime and Stephens’ criminal record. Stephens responded by explaining that it was his accomplice who had actually carried the gun during the robbery. COURT: NOT INTERROGATION. “[Stephens] evidently thought an offer of a 16-year term was excessive because he was ‘not the one with the gun.’ Defendant obviously did not perceive that he was being interrogated but, rather, wanted to voluntarily assert a reason for leniency.”

? Clark was arrested and driven to the police station where he invoked his Miranda rights. Officers then transported him to a local hospital to obtain a blood sample. During the trip, Clark asked, “What can someone get for something like this, thirty years?” An officer responded, “Probably not unless you were a mass murderer.” The officer went on to say that he had never seen anybody serve more than seven and a half years. At that point, Clark said, “I want this on the record. I’m guilty. I killed her. What do you want to know?” COURT: NOT INTERROGATION. “[T]here was no reason for [the officer] to have known that his casual estimate of possible penalties would produce an incriminating response from this defendant. Defendant phrased his question in abstract terms and the officer responded in the same terms.”

? Tarter, who was on trial for robbery, asked the courtroom marshal what he thought his sentence would be if he was convicted. In order to answer the question, the marshal asked him some questions about the robbery, such as, “How much did you get in the robbery?” “Was anyone hurt?” “Why did you commit the robbery?” COURT: NOT INTERROGATION. The questions were not interrogation because they were asked “for the sole purpose of better enabling the marshal to express a more accurate opinion concerning the likely disposition of defendant’s case.”

Responding to a spontaneous statement

If a suspect in custody makes a spontaneous statement to an officer, the officer may respond. But unless the suspect has waived his Miranda rights, the officer’s response must be brief and restrained. In other words, an officer’s response to a suspect’s spontaneous statement will not be deemed “interrogation” so long as it reasonably appears the suspect was in control of the conversation and there was no indication of coercion. The following are examples:

? Ray, who was in prison on a murder charge, asked to meet with a Department of Corrections investigator. During the meeting, Ray spontaneously confessed to a series of unsolved robberies. As Ray was furnishing details concerning the robberies, the investigator would occasionally interject “yeah” or “okay,” ask Ray to repeat something, or ask for details, such as when and where the crimes were committed and whether the victims were tied up or hurt. COURT: NOT INTERROGATION. “Here, [the investigator] did not influence the manner in which defendant reported the crimes. The entire confession was given in narrative, almost rambling form. To the extent [the investigator] interrupted and asked questions, they were merely neutral inquiries made for the purpose of clarifying statements or points that he did not understand. Nothing in the substance or tone of such inquiries was reasonably likely to elicit information that defendant did not otherwise intend to freely provide.”

? Officers conducted a parole search of Thomas’s apartment, looking for a gun that had been used in an attempted murder. When an officer found the gun, he arrested Thomas. As he did so, Thomas spontaneously said the officer had “the wrong person,” and that “[I] wasn’t even out of my apartment that night.” The officer told Thomas that “he was identified as being there by me seeing him on a video tape at a bar a few blocks away from the shooting.” Thomas responded by making an incriminating statement. COURT: NOT INTERROGATION. “Here it is clear there was no attempt by the officer to elicit information from Thomas before he volunteered and gratuitously interjected the statement.”

? When an officer arrested Maxey for passing a forged money order, Maxey spontaneously said he received the money order from two men who had accompanied him to the bank. The officer asked Maxey to describe the two men. Maxey’s response to the officer’s request was used against him at trial. COURT: NOT INTERROGATION. The officer “was in the awkward situation of either not asking what the two men looked like and risking the disappearance of the real culprits, or of believing Maxey and attempting to check out his story. We cannot say that the few questions asked in response to Maxey’s volunteered story about the two men constituted custodial interrogation.”

Routine booking questions

When a person is arrested, there are certain questions that are asked as a matter of routine, usually as part of the booking process. Such questions are commonly known as “routine booking questions.” A prisoner’s answers to such questions will not be suppressed on Miranda grounds for two reasons. First, most routine booking questions are not reasonably likely to elicit an incriminating response. Second, the United States Supreme Court has ruled that questions “normally attendant to arrest and custody” are exempt form Miranda.
As a general rule, a question will be deemed a “routine booking question” if it merely seeks basic identifying data or biographical information that is necessary to complete the booking or pretrial services process. Questions falling into this category typically include inquiries into the suspect’s name, address, date of birth, physical description, telephone number, occupation, social security number, employment history, arrest record, spouse’s name, and parents’ name.
On the other hand, questions that go beyond what is required to complete the booking process, will not be considered “routine booking questions.” For example, in People v. Morris an officer who was booking a murder suspect asked, “Who are you accused of killing?” The suspect responded, “I killed my sister-in-law.” The officer testified that his question was a fairly standard one when booking a murder suspect because of the possibility of retaliation if the victim had friends or relatives in the jail. Nevertheless, the court ruled the question was not a routine booking question because it went “well beyond the type of neutral questioning permissible in a booking interview.”
Practice note: It is important to understand that booking officers can and should ask any question that is reasonably necessary for jail security. Although the answer may be suppressed if the question constituted interrogation, that does not mean the question was improper. As the Court of Appeal explained, “The focus of our analysis is not what the police may lawfully ask a criminal suspect to ensure jail security. The police may ask whatever the needs of jail security dictate. However, when the police know or should know that such an inquiry is reasonably likely to elicit an incriminating response from the suspect, the suspect’s responses are not admissible against him [unless the suspect waived his Miranda rights].”

Administrative questions
While routine booking questions are asked as a matter of regular police procedure, some types of questions need to be asked because of the special circumstances surrounding the crime or arrest. Such questions do not generally constitute interrogation because they are reasonably necessary under the circumstances, their purpose is not to obtain incriminating information, and they are usually brief. The following are examples:
? When a suspected drug dealer swallowed what appeared to be heroin-filled balloons, the arresting officer asked if he wanted his stomach pumped. The suspect responded, “Let me die.” COURT: NOT INTERROGATION. “In light of [the officer’s] personal observations of defendant’s conduct in swallowing the balloons of heroin, he had a justifiable interest in asking him if he wanted his stomach pumped. This single question with its explanation, was not part of an interrogation designed to elicit incriminating statements…”
? A jailer who was conducting a booking search of a prisoner found methamphetamine in the bottom of the prisoner’s deodorant container. At that point, the jailer told her partner, “I believe I have something here.” The prisoner responded by making an incriminating statement. COURT: NOT INTERROGATION. “There is no basis for finding that the deputy should have known her quick, informative remark, made contemporaneously with her discovery, was reasonably likely to elicit an incriminating response.”
? When an officer arrived at the scene of a stabbing, he asked a crowd of people, “Who did this?” When witnesses pointed to Sanchez, who was bloodied and had a knife in his hand, the officer asked him, “Why did you do it?” COURT: The question, “Who did this?” was not interrogation. The question, “Why did you do it?” was interrogation.
? After transporting a DUI suspect to jail, an officer instructed him concerning various sobriety tests that did not call for a verbal response. He also asked him if he understood the instructions and asked him to submit to a breath test. The suspect responded by making incrimination statement. COURT: NOT INTERROGATION.
? After transporting a DUI suspect to jail, an officer asked him, “When you turned six years old, do you remember what the date was?” The suspect was unable to answer. COURT: THIS WAS INTERROGATION. It was reasonably likely the suspect could not answer the question; his inability to answer was incriminating.
? A minor who had been arrested for attempted car theft claimed the car belonged to his mother. When the arresting officer ran the license number and determined the minor was lying, he said to him, “The car’s not yours.” In response, the minor admitted the car was stolen. COURT: NOT INTERROGATION. “[T]here were scant few pieces of the puzzle [as to the owner’s name] sorted out when [the officer] made his statement to appellant…In that context of the few developments of the case, the officer’s remark could hardly be called anything but a tentative, and somewhat uncertain, statement not reasonably seen by him to invite a response.”

Other “neutral” questions
TELEPHONE NEGOTIATIONS WITH SUSPECT: A telephone conversation between a barricaded suspect and officers who are attempting to convince the suspect to surrender or release hostages is not interrogation.
“ YOU’RE UNDER ARREST FOR….”: Informing a suspect he is under arrest for a certain crime is not interrogation. Consequently, a suspect’s incriminating response will not be suppressed on Miranda grounds.
CLARIFYING MIRANDA RIGHTS: Suspects who are being Mirandized will occasionally indicate some confusion about their rights or ask for an explanation. When this happens, it is proper for officers to explain or clarify the Miranda rights. And if the suspect responds by making an incriminating statement, the statement will ordinarily be admissible because such an explanation is not reasonably likely to elicit an incriminating response. As the Court of Appeal observed, “[T]he case law draws a sensible distinction between clarification and interrogation. On the one hand, it permits clarifying questions with regard to the individual’s comprehension of his constitutional rights or the waiver of them; on the other hand, it prohibits substantive questions which portend to develop the facts under investigation.”
QUESTIONS ABOUT SUSPECT’S INDENTITY: Questions that are reasonably necessary to establish the identity of a suspect do not constitute interrogation even though they are not asked in connection with booking.


1 People v. Thomas (1990) 219 Cal. App. 3d 134, 143.

2 Rhode Island v. Innis (1980) 446 US 291, 300. Emphasis added. NOTE: SPONTANEOUS STATEMENTS: A statement that was not made in response to interrogation is known as a “spontaneous” or “volunteered” statement. Such statements will not be suppressed under Miranda because, by their very nature, they are not the result of interrogation. See Miranda v. Arizona (1966) 384 US 436, 478; People v. Maxey (1985) 172 Cal. App. 3d 661, 666; People v. Grant (1988) 45 Cal. 3d 829, 842-3; People v. Bradford (1997) 14 Cal.4 th 1005, 1035; People v. Edwards (1991) 54 Cal.3d 787, 816; People v. Matthews (1968) 264 Cal.App.2d 557, 567. A spontaneous statement is admissible even if the suspect previously invoked his Miranda rights or was represented by an attorney. See People v. Stephens (1990) 218 Cal.App.3d 575, 580-2.

3See People v. Bradford (1997) 14 Cal.4 th 1005, 1035.

4 See Rhode Island v. Innis (1980) 446 US 291, 300-1.

5 See Rhode Island v. Innis (1980) 446 US 291, 301; Arizona v. Mauro (1986) 481 US 520, 526; Pennsylvania v. Muniz (1990) 496 US 582, 600-601;
People v. Ray (1996)13 Cal.4 th 313, 336; People v. Stephens (1990) 218 Cal.App.3d 575, 581; People v. Wader (1993) 5 Cal.4 th 610, 637; People v. Turner
(1984) 37 Cal.3d 302, 317; In re Albert R. (1980) 112 Cal.App.3d 783, 789, 791; People v. O’Sullivan (1990) 217 Cal.App.3d 237, 242; People v. Clark
(1993) 5 Cal.4 th 950, 985; People v. Dominick (1986) 182 Cal.App.3d 1174, 1190; People v. Aguilera (1996) 51 Cal.App.4 th 1151, 1161; People v. Celestine
(1992) 9 Cal.App.4 th 1370, 1374; In re Curt W. (1982) 131 Cal.App.3d 169, 178; People v. Claxton (1982) 129 Cal.App.3d 638, 654; People v. Boyer Cal.3d 247, 275; People v. Mickey (1991) 54 Cal.3d 612,651; “INCRIMINATING RESPONSE” DEFINED: A suspect’s response to an officer’s words of conduct will be deemed an “incriminating response” if the prosecution may seek to use it against the suspect at trial. See Rhode Island v. Innis (1980) 446 US 291, 301, fn.5.

6 Rhode Island v. Innis (1980) 446 US 291, 301.

7 See Arizona v. Mauro (1986) 481 US 520, 529 [“Officers do not interrogate a suspect simply by hoping that he will incriminate himself.”]; Rhode Island v.
Innis (1980) 446 US 291, 301-2 [“(T)he police surely cannot be held accountable for the unforeseeable results of their words or actions…”].

8 See Rhode Island v. Innis (1980) 446 US 291, 301; People v. Wader (1993) 5 Cal.4 th 610, 637; In re Albert R. (1980) 112 Cal. App.3d 783; People v. O’Sullivan
(1990) 217 Cal.App.3d 237, 242. NOTE: In RhodeIsland v. Innis (1980) 446 US 291, 301 the United States Supreme Court stated that its definition of interrogation “focuses primarily upon the perceptions of the suspect, rather than the intent of the police.” This comment was somewhat confusing because it seemed inconsistent with the thrust of Innis that the existence of “interrogation” depended on the surrounding objective circumstances, not how a particular suspect perceived them. Subsequently, in Arizona v. Mauro (1986) 481 US 520, 528 the Court clarified its comment in Innis by stating it was merely “suggesting that the suspect’s perceptive may be relevant in some cases in determining whether police acitons constitute interrogation.” Also, in People v. Claxton
(1982) 129 Cal.App.2d 638, 655 the Court of Appeal stated the comment in Innis was added “to remove the necessity of proving the underlying intent of the police in ambiguous circumstances.”

9 See Rhode Island v. Innis (1980) 446 US 291, 301, fn. 7 [“(W)here a police practice is designed to elicit an incriminating response from the accused, it is unlikely
that the practice will not also be one which the police should have known was reasonably likely to have that effect.”]; In re Albert R. (1980) 112 Cal.App.3d 783, 788, 792-3. But also see People v. Claxton (1982) 129 Cal.App.3d 638, 655 [“Certainly the intent of (the officer) is highly probative; he did not intend to elicit incriminatory statements from the appellant to be used against him.”]. NOTE: It would not be particularly relevant that the officer did not intend to elicit an incriminating response because a officer’s lack of intent does not tend to prove that a reasonable officer would not have known an incriminating response was reasonably likely. See Pennsylvania v. Muniz (1990) 496 US 582, 601: People v. Boyer (1989) 48 Cal.3d 247, 275. Also, it is not particularly significant that the suspect believed the officer’s words or conduct called for an incriminating response. Again, this is because the existence of “interrogation” depends on what the officer should have known-not how the suspect may have interpreted the officer’s words or conduct. See People v. O’Sullivan (1990) 217 Cal.App.3d 237, 242.

10 Rhode Island v. Innis (1980) 446 US 291, 302, fn.8. Also see Pennsylvannia v. Muniz (1990) 496 US 582, 601; Brewer v. Williams (1997) 430 US 387.

11 See People v. Wader (1993) 5 Cal.4 th 610, 637 [quoting from United States v. Gonzalez-Marez (9 th Cir. 1985) 752 F.2d 1485, 1489].

11a See People v. Boyer (1989) 48 Cal.3d 247, 274. NOTE: Although a suspect faced with an accusation could say nothing in response, a failure to respond may be deemed an admission the accusation is true. See CALJIC 2.71.5.

12 (1980) 112 Cal.App.3d 783. Compare In re Curt W. (1982) 131 Cal.App.3d 169, 178; People v. Thomas (1990) 219 Cal.App.3d 134.

13 (1965) 236 Cal.App.2d 27. Compare Illinois v. Perkins (1990) 496 US 292.

14 Rhode Island v. Innis (1980) 446 US 291, 299, fn.3. Also see People v. Wojtkowski (1985) 167 Cal.App.3d 1077, 1081.

15 (1986) 178 Cal.App.3d 217, 230.

16 (1988) 45 Cal.3d 548, 574-5.

17 See Rhode Island v. Innis (1980) 446 US 291, 299.

18 See Miranda v. Arizona (1966) 384 US 436, 452. Also, see People v. Mayfield (1997) 14 Cal.4 th 668, 734.

19 See Arizona v. Mauro (1986) 481 US 520, 529-30.

20 People v. Mayfield (1997) 14 Cal.4 th 668, 757-8.

21 See People v. Grant (1988) 45 Cal.3d 829, 842-3, People v. Mickey (1991) 54 Cal.3d 612, 651.

22 (1989) 48 Cal.3d 247, 274.

23 (1977) 430 US 387
.
24 NOTE: Although Williams was based on a violation of the Sixth Amendment, its reasoning applies equally to Miranda. See In re Albert R. (1980) 112 Cal.App.3d 783, 792.

25 (1980) 446 US 291. Also see People v. O’Sullivan (1990) 217 Cal.App.3d 237, 241-4.

26 (1988) 486 US 675, 687.

27 (1989) 48 Cal.3d 247.

28 See People v. Thomas (1990) 219 Cal.App.3d 134. Although the court did not cite the “brief statement of facts” language contained in Arizona v. Roberson, the officer’s comment in Thomas would seem to fall within that category.

29 People v. Wader (1993) 5 Cal.4 th 610, 637. Also see People v. Clark (1993) 5 Cal.4 th 950, 985.

30 (1993) 5 Cal.4 th 610. Also see People v. Underwood (1986) 181 Cal.App.3d 1223 , 1231.

31 (1982) 129 Cal.App.3d 638.

32 (1990) 50 Cal.3d 262, 274-5.

33 (1990) 50 Cal.3d 262, 274-5.

34 People v. Stephens (1990) 218 Cal.App.3d 575.

35 People v. Clark (1993) 5 Cal.4 th 950.

36 People v. Tarter (1972) 27 Cal.App.3d 935.

37 People v. Ray (1996) 13 Cal.4 th 313.

38 People v. Thomas (1990) 219 Cal.App.3d 134.

39 People v. Maxey (1985) 172 Cal.App.3d 661.

41 See Rhode Island v. Innis (1980) 446 US 291, 301. NOTE: Prior to Innis, the California Supreme Court ruled in People v. Rucker (1980) 26 Cal.3d 368 that routine booking questions would be admissible in court only if officers obtained a valid Miranda waiver. As the result of Proposition 8, however, Rucker has been abrogated, and Innis is now the law in California. See People v. Hall (1988) 199 Cal.App.3d 914, 919-21; People v. Morris (1987) 192 Cal.App.3d 380, 387; People v. Herbst (1986) 186 Cal.App.3d 793, 800.

42 See Pennsylvania v. Muniz (1990) 496 US 582, 601; People v. Powell (1986) 178 Cal.App.3d 36, 39 [“The booking procedure has been described as essentially a clerical process. The limited information needed at a booking procedure is required solely for the purposes of internal jail administration, not for use in connection with any criminal proceeding against the arrestee. When use of this information is confined to those proper purposes, its elicitation cannot be considered incriminatory.”]; People v. Hall (1988) 199 Cal.App.3d 914, 921; People v. Herbst (1986) 186 Cal.App.3d 793.

43 See Pennsylvania v. Muniz (1990) 496 US 582, 601-2; People v. Palmer (1978) 80 Cal.App.3d 239, 255-6, fn.9; People v. Powell (1986) 178 Cal.App.3d 36, 40; People v.Valdivia (1986) 180 Cal.App.3d 657,662.

44 (1987) 192 Cal.App.3d 380.

45 People v. Morris (1987) 192 Cal.App.3d 380.

46 People v. Jones (1979) 96 Cal.App.3d 820.

47 People v. O’Sullivan (1990) 217 Cal.App.3d 237.

48 See People v. Turner (1984) 37 Cal.3d 302, 318; People v. Sanchez (1967) 65 Cal.2d 814.

49 Pennsylvania v. Muniz (1990) 496 US 582, 602-5 [questions in which the suspect was asked to count aloud did, however, constitute “interrogation.” Also see People v. Dominick (1986) 182 Cal.App.3d 1174, 1189-92; People v. Hayes (1985) 169 Cal. App.3d 898, 906-9; People v. Jacobson (1965) 63 Cal.2d 319, 328. [Although Jacobson was decided before Innis, it seems likely its ruling would be good law today.].

50 Pennsylvania v. Muniz (1990) 496 US 582, 602-5.

51 In re Curt W. (1982) 131 Cal.App.3d 169.

52 See People v. Mayfield (1997) 14 Cal.4 th 668, 733-4.

53 See People v. Celestine (1992) 9 Cal.App.4 th 1370, 1374 [“Far more is required to constitute ‘the functional equivalent
of questioning’ than merely advising a person he is under arrest for a specific offense.”]

54 See Duckworth v. Eagan (1989) 492 US 195, 203; People v. Hinds (1984) 154 Cal.App.3d 222,235.

55 People v. Turnage (1975) 45 Cal.App.3d 201, 211. Emphasis omitted. Also see People v. Wash (1993) 6 Cal.4 th 215, 239 [(W)here a defendant expresses ambiguous remarks falling short of an invocation of his Miranda rights, the officers may continue talking for the purpose of clarification of his intentions.”]

56 See People v. Valdivia (1986) 180 Cal.App.3d 658, 662; People v. Powell (1986) 178 Cal.App.3d 36, 39.





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