California DUI criminal defense attorneys are often asked if the police can use the person's statements against the person even though the person was never advised of his or her Miranda Rights after a California drunk driving stop or arrest.
California DUI criminal defense lawyers need to file these objections at trial:
The defendant objects to the admission in this trial of any and all evidence related to his admissions supposedly made after he was seized but prior to being advised of her Miranda rights. Objection is especially made to the introduction of any statements made prior to the FST’s were sought to be administered.
The defendant was stopped for a moving violation. The police then and there had probable cause to arrest him for both offenses. VC 21658(a); VC 22356(b). Under recent Supreme Court teachings, those are both custodial offenses for purposes of arrest. Atwater v. City of Lago Vista (2001) 532 U.S. 318, 354. After the stop, the police never told the defendant he was free to leave nor that he would not be arrested.
The defendant was grilled and tested.
The FST, pre-formal arrest, questions were asked per a pre-printed form presenting many detailed (not general) inquiries amounting to upwards of a dozen or more questions relating to drinking, eating, sleeping, etc. This is clearly an “interrogation” as defined in Rhode Island v. Innis (1980) 446 U.S. 291, 301. An interrogation is either express questioning or its functional equivalent that is reasonably likely to elicit an incriminating response. Id. See also People v. Underwood (1986) 181 Cal.App.3d 1223, 1231.
A person is in custody when as a suspect he is “deprived of his freedom of action in any significant way, or is led to believe, as a reasonable person, that he is so deprived.” People v. Arnold (1967) 66 Cal.2d 438, 448. The defendant here assuredly was, prior to the FSTs being administered; the Supreme Court has said so.
As has been noted, and which remains the law, when the police physically stop a person for the observed commission of a custodial crime, that person is thereby “arrested.” Henry v. United States (1959) 361 U.S. 98, 103 [“The prosecution conceded below, and adheres to the concession here, … that the arrest took place when the federal agents stopped the car. That is our view on the facts of this particular case. When the officers interrupted the two men and restricted their liberty of movement, the arrest, for purposes of this case, was complete.”] [emphasis added], Peters v. New York (1968) 392 U.S. 40, 67.
The police chased after the defendant and arrested him for a moving violation / infraction. The courts have laid out a number of factors to be considered on the question of Miranda custody. These include: focus of investigation, type of questioning, whether freedom of movement is deprived, whether the focus of the investigation is communicated to the detainee, how would the reasonable person in the suspect’s position have understood his situation, did the police communicate to the suspect that he was being investigated. See People v. Lopez (1985) 163 Cal.App.3d 602, 605-608. I hope no one thinks the defendant was free to leave in this drive-off-and-talk setting. As has been authoritatively noted, “The ultimate ‘in custody’ determination for Miranda purposes [involves] [t]wo discrete inquires [including] would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave.” Thompson v. Keohane (1995) 516 U.S. 99, 112. Here, the person was questioned at length about this incident. That is not the sort of conversation which temporary roadside questioning about the grounds for an infraction stop like a moving violation is made.
The People may, as usual, attempt to rely on Berkemer v. McCarty (1984) 468 U.S. 420, for the proposition that the disputed questioning of defendant in this case is allowable. However, a careful reading of that case does not support the view that the types of detailed questions asked of the defendant are admissible. In Berkemer only one question was asked after an officer had stopped a vehicle for weaving in and out of traffic, respondent was asked to get out of the car, the officer noticed respondent had difficulty standing, and could not perform FST’s without falling. The officer then asked the respondent if he had taken any intoxicants. The respondent replied that he had consumed two beers and smoked marijuana a short time before. The respondent was then arrested. The court held that the police may ask a “moderate” number of questions to obtain identity information and to try to obtain information confirming or dispelling the officer’s suspicions. Here, there were no suspicions to dispel, as to the moving violations; they spoke for themselves and supported arrest.
The Court there expressly noted that it was discussing the matter solely in terms of a “Terry stop,” and not where there was probable cause. Id., at pages 439-440. The Court further points out that the exception to Miranda it is there concocting is because “detention of a motorist pursuant to a traffic stop is presumptively temporary and brief.” Id, at page 437. Not anymore. Lago Vista has changed much of that, and citizens are presumed to know the law, R. Perkins and P. Boyce, The Criminal Law 1030 (3rd ed. 1982), and this federal peace officer assuredly does, and the law is that where there is probable cause for a traffic seizure, as here, the person stopped can now be placed in custody, even if the offense does not call for custody as a matter of punishment. Lago Vista, supra.
The detailed and accusatory and evidence-collecting questioning of the defendant in this case, did not serve any limited purpose. The questions were asked to obtain incriminating statements for use in the prosecution, and they are being so used.
The Berkemer court was also quick to point out that respondent’s contention that to exempt traffic stops from coverage of Miranda would open the way to widespread abuse; of course, misunderstanding/mischaracterizing what Berkemer held has caused widespread abuse to increasingly come to pass. The court was confident that it would not become the norm that policemen would delay formal arrest of detained motorists and subject them to sustained and intimidating interrogation at the initial detention. Of course, that has become the norm: prolonged, detailed police interrogation, pre-formal arrest, as in this case, is now standard and tutored police practice.
The presumptively limited nature of the traffic stop, from which all could reasonably be presumed to depart after citation, which animates the Berkemer exception to Miranda [Berkemer, supra @439-440], has now evaporated: people, all of whom are presumed to know the law in this Republic, now know that their supposedly protective Supreme Court has decreed that they can be shackled and trussed up like a Christmas goose for the most minor of offenses.
Therefore, they can never presume to go on their way from a traffic stop, and hence the time of the sort of custody dictating the right to Miranda advisals that still exist in a traffic stop [Berkemer, supra @440] commence at the git-go of the traffic detention. Dark clouds and silver linings and all that!
Miranda clearly applies here.
The standard by which the court must judge the admissibility of pre-Miranda admissions is set forth in the U.S. Supreme Court case of Pennsylvania v. Muniz (1990) 496 U.S. 582. In that case, the arresting officer asked the defendant during his “initial” investigation and “prior” to any Miranda rights being read to the Defendant, questions the court felt were not necessary for booking and of a possible incriminating nature. The Supreme Court held the officer had a right to “secure the biographical data necessary to complete the booking.”
The court, however, further concluded that the defendant’s admissions to non-routine booking questions are incriminating not only because of the manner in which they are delivered, but also because of the content. These included statements made during FST’s performed at the police station. Therefore, the admissions to those sorts of questions should be suppressed.
Of course, if those admissions are suppressed [as they must be], then the post-Miranda statements must also be such, because the initial violation taints the later grilling. See Missouri v. Seibert (2004) 542 U.S. 600, 616-617.
Captain Motion, Michael Kennedy, is a top California DUI criminal defense attorney who any citizen should strongly consider representing him or her if facing a drunk driving or other criminal arrest! He is the foremost California criminal defense lawyer expert at excluding improperly gathered evidence.
The public and the police need to know it's not right to violate one's Miranda Rights. The more people that become aware of this concept the better. "Get our country back" finally means something when we get the message out and it makes a difference in police tactics which often go unquestioned, self-perpetuating improper police techniques and methods.