3.3: Chapter 24 - The Miranda Rule- What Is Custody?

INTERROGATIONS

Chapter 24

The Miranda Rule: What Is Custody?

The Miranda Rule applies only during “custodial interrogation.” Therefore, unless a suspect is both (1) “in custody” and (2) being “interrogated,” police need not provide the warnings described in Miranda. In this chapter, we consider how the Court has defined “custody” in cases applying the Miranda Rule. We also review some of the literature evaluating the practical effects of the doctrine on suspects and police.

In Miranda, the Court wrote: “By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Subsequent cases, however, have strayed from the expansive definition of “custody” implied by the words “deprived of his freedom of action in any significant way.”

Students should note that the definition of “custody” under Miranda differs from the definition of a “seizure” for Fourth Amendment purposes. In other words, a person can be “seized” (or “detained”) but not be in a situation in which Miranda warnings are required before police may begin interrogation. Yet Fourth Amendment law remains a useful touchstone because if a person is not “seized”—that is, if a reasonable person in her situation would have felt free to leave—then it will be difficult to argue that she was “in custody” for Miranda purposes.

Supreme Court of the United States

Oregon v. Carl Ray Mathiason

Jan. 25, 1977 – 429 U.S. 492

PER CURIAM.

Respondent Carl Mathiason was convicted of first-degree burglary after a bench trial in which his confession was critical to the State’s case. At trial he moved to suppress the confession as the fruit of questioning by the police not preceded by the warnings required in Miranda v. Arizona. The trial court refused to exclude the confession because it found that Mathiason was not in custody at the time of the confession.

The Oregon Court of Appeals affirmed respondent’s conviction, but on his petition for review in the Supreme Court of Oregon that court by a divided vote reversed the conviction. It found that although Mathiason had not been arrested or otherwise formally detained, “the interrogation took place in a ‘coercive environment’” of the sort to which Miranda was intended to apply. The State of Oregon has petitioned for certiorari to review the judgment of the Supreme Court of Oregon. We think that court has read Miranda too broadly, and we therefore reverse its judgment.

The Supreme Court of Oregon described the factual situation surrounding the confession as follows:

“An officer of the State Police investigated a theft at a residence near Pendleton. He asked the lady of the house which had been burglarized if she suspected anyone. She replied that the defendant was the only one she could think of. The defendant was a parolee and a ‘close associate’ of her son. The officer tried to contact defendant on three or four occasions with no success. Finally, about 25 days after the burglary, the officer left his card at defendant’s apartment with a note asking him to call because ‘I’d like to discuss something with you.’ The next afternoon the defendant did call. The officer asked where it would be convenient to meet. The defendant had no preference; so the officer asked if the defendant could meet him at the state patrol office in about an hour and a half, about 5:00 p.m. The patrol office was about two blocks from defendant’s apartment. The building housed several state agencies.”

“The officer met defendant in the hallway, shook hands and took him into an office. The defendant was told he was not under arrest. The door was closed. The two sat across a desk. The police radio in another room could be heard. The officer told defendant he wanted to talk to him about a burglary and that his truthfulness would possibly be considered by the district attorney or judge. The officer further advised that the police believed defendant was involved in the burglary and (falsely stated that) defendant’s fingerprints were found at the scene. The defendant sat for a few minutes and then said he had taken the property. This occurred within five minutes after defendant had come to the office. The officer then advised defendant of his Miranda rights and took a taped confession.”

“At the end of the taped conversation the officer told defendant he was not arresting him at this time; he was released to go about his job and return to his family. The officer said he was referring the case to the district attorney for him to determine whether criminal charges would be brought. It was 5:30 p.m. when the defendant left the office.”

“The officer gave all the testimony relevant to this issue. The defendant did not take the stand either at the hearing on the motion to suppress or at the trial.”

Our decision in Miranda set forth rules of police procedure applicable to “custodial interrogation.” “By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Subsequently we have found the Miranda principle applicable to questioning which takes place in a prison setting during a suspect’s term of imprisonment on a separate offense, and to questioning taking place in a suspect’s home, after he has been arrested and is no longer free to go where he pleases.

In the present case, however, there is no indication that the questioning took place in a context where respondent’s freedom to depart was restricted in any way. He came voluntarily to the police station, where he was immediately informed that he was not under arrest. At the close of a ½-hour interview respondent did in fact leave the police station without hindrance. It is clear from these facts that Mathiason was not in custody “or otherwise deprived of his freedom of action in any significant way.”

Such a noncustodial situation is not converted to one in which Miranda applies simply because a reviewing court concludes that, even in the absence of any formal arrest or restraint on freedom of movement, the questioning took place in a “coercive environment.” Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him “in custody.” It was that sort of coercive environment to which Miranda by its terms was made applicable, and to which it is limited.

The officer’s false statement about having discovered Mathiason’s fingerprints at the scene was found by the Supreme Court of Oregon to be another circumstance contributing to the coercive environment which makes the Miranda rationale applicable. Whatever relevance this fact may have to other issues in the case, it has nothing to do with whether respondent was in custody for purposes of the Miranda rule.

The petition for certiorari is granted, the judgment of the Oregon Supreme Court is reversed, and the case is remanded for proceedings not inconsistent with this opinion.

Mr. Justice MARSHALL, dissenting.

The respondent in this case was interrogated behind closed doors at police headquarters in connection with a burglary investigation. He had been named by the victim of the burglary as a suspect, and was told by the police that they believed he was involved. He was falsely informed that his fingerprints had been found at the scene, and in effect was advised that by cooperating with the police he could help himself. Not until after he had confessed was he given the warnings set forth in Miranda v. Arizona.

The Court today holds that for constitutional purposes all this is irrelevant because respondent had not “‘been taken into custody or otherwise deprived of his freedom of action in any significant way.’” I do not believe that such a determination is possible on the record before us. It is true that respondent was not formally placed under arrest, but surely formalities alone cannot control. At the very least, if respondent entertained an objectively reasonable belief that he was not free to leave during the questioning, then he was “deprived of his freedom of action in a significant way.” Plainly the respondent could have so believed, after being told by the police that they thought he was involved in a burglary and that his fingerprints had been found at the scene. Yet the majority is content to note that “there is no indication that … respondent’s freedom to depart was restricted in any way,” as if a silent record (and no state-court findings) means that the State has sustained its burden of demonstrating that respondent received his constitutional due.

More fundamentally, however, I cannot agree with the Court’s conclusion that if respondent were not in custody no warnings were required. I recognize that Miranda is limited to custodial interrogations, but that is because [] the facts in the Miranda cases raised only this “narrow issue.”

In my view, even if respondent were not in custody, the coercive elements in the instant case were so pervasive as to require Miranda-type warnings. Respondent was interrogated in “privacy” and in “unfamiliar surroundings,” factors on which Miranda places great stress. The investigation had focused on respondent. And respondent was subjected to some of the “deceptive stratagems,” which called forth the Miranda decision. I therefore agree with the Oregon Supreme Court that to excuse the absence of warnings given these facts is “contrary to the rationale expressed in Miranda.”

The privilege against self-incrimination “has always been ‘as broad as the mischief against which it seeks to guard.’” Today’s decision means, however, that the Fifth Amendment privilege does not provide full protection against mischiefs equivalent to, but different from, custodial interrogation. I respectfully dissent.

Notes, Comments, and Questions

We have seen the Court’s preference for objective tests—those based upon what a “reasonable” person would have done or believed in certain circumstances—over subjective tests based on what a specific person was actually thinking. When deciding whether Sylvia Mendenhall was detained (Chapter 19), for example, the question was not whether she felt free to leave but instead was whether a hypothetical reasonable person in her situation at the airport would have felt free to leave. Similar analysis pervades decisions about whether consent for searches was validly obtained.

Further, the Court has often seemed to adopt a one-size-fits-all concept of the reasonable person. To return to Mendenhall: The Court considered briefly that she was “22 years old and had not been graduated from high school … [and was] a female and [Black]” interacting with white police officers. Nonetheless, the Court’s “reasonable person” analysis paid little attention to these factors, finding them “not irrelevant” but not especially important. Critics have suggested (as they have in other legal contexts applying “reasonable person” standards, such as tort law) that the beliefs and behaviors of a reasonable person will depend significantly on factors such as race, sex, education, age, and social class, to which the Court gives little attention.

In the next case, the Court considered the potential relevance of someone’s age to the question of whether he was “in custody” for purposes of Miranda. The result differed from the common one-size-fits-all concept of “reasonable” that the Court had previously applied in Miranda cases.

Supreme Court of the United States

J.D.B. v. North Carolina

Decided June 16, 2011 – 564 U.S. 261

Justice SOTOMAYOR delivered the opinion of the Court.

This case presents the question whether the age of a child subjected to police questioning is relevant to the custody analysis of Miranda v. Arizona. It is beyond dispute that children will often feel bound to submit to police questioning when an adult in the same circumstances would feel free to leave. Seeing no reason for police officers or courts to blind themselves to that commonsense reality, we hold that a child’s age properly informs the Miranda custody analysis.

I

A

Petitioner J.D.B. was a 13-year-old, seventh-grade student attending class at Smith Middle School in Chapel Hill, North Carolina when he was removed from his classroom by a uniformed police officer, escorted to a closed-door conference room, and questioned by police for at least half an hour.

This was the second time that police questioned J.D.B. in the span of a week. Five days earlier, two home break-ins occurred, and various items were stolen. Police stopped and questioned J.D.B. after he was seen behind a residence in the neighborhood where the crimes occurred. That same day, police also spoke to J.D.B.’s grandmother—his legal guardian—as well as his aunt.

Police later learned that a digital camera matching the description of one of the stolen items had been found at J.D.B.’s middle school and seen in J.D.B.’s possession. Investigator DiCostanzo, the juvenile investigator with the local police force who had been assigned to the case, went to the school to question J.D.B. Upon arrival, DiCostanzo informed the uniformed police officer on detail to the school (a so-called school resource officer), the assistant principal, and an administrative intern that he was there to question J.D.B. about the break-ins. Although DiCostanzo asked the school administrators to verify J.D.B.’s date of birth, address, and parent contact information from school records, neither the police officers nor the school administrators contacted J.D.B.’s grandmother.

The uniformed officer interrupted J.D.B.’s afternoon social studies class, removed J.D.B. from the classroom, and escorted him to a school conference room. There, J.D.B. was met by DiCostanzo, the assistant principal, and the administrative intern. The door to the conference room was closed. With the two police officers and the two administrators present, J.D.B. was questioned for the next 30 to 45 minutes. Prior to the commencement of questioning, J.D.B. was given neither Miranda warnings nor the opportunity to speak to his grandmother. Nor was he informed that he was free to leave the room.

Questioning began with small talk—discussion of sports and J.D.B.’s family life. DiCostanzo asked, and J.D.B. agreed, to discuss the events of the prior weekend. Denying any wrongdoing, J.D.B. explained that he had been in the neighborhood where the crimes occurred because he was seeking work mowing lawns. DiCostanzo pressed J.D.B. for additional detail about his efforts to obtain work; asked J.D.B. to explain a prior incident, when one of the victims returned home to find J.D.B. behind her house; and confronted J.D.B. with the stolen camera. The assistant principal urged J.D.B. to “do the right thing,” warning J.D.B. that “the truth always comes out in the end.”

Eventually, J.D.B. asked whether he would “still be in trouble” if he returned the “stuff.” In response, DiCostanzo explained that return of the stolen items would be helpful, but “this thing is going to court” regardless. DiCostanzo then warned that he may need to seek a secure custody order if he believed that J.D.B. would continue to break into other homes. When J.D.B. asked what a secure custody order was, DiCostanzo explained that “it’s where you get sent to juvenile detention before court.”

After learning of the prospect of juvenile detention, J.D.B. confessed that he and a friend were responsible for the break-ins. DiCostanzo only then informed J.D.B. that he could refuse to answer the investigator’s questions and that he was free to leave. Asked whether he understood, J.D.B. nodded and provided further detail, including information about the location of the stolen items. Eventually J.D.B. wrote a statement, at DiCostanzo’s request. When the bell rang indicating the end of the schoolday, J.D.B. was allowed to leave to catch the bus home.

B

Two juvenile petitions were filed against J.D.B., each alleging one count of breaking and entering and one count of larceny. J.D.B.’s public defender moved to suppress his statements and the evidence derived therefrom, arguing that suppression was necessary because J.D.B. had been “interrogated by police in a custodial setting without being afforded Miranda warning[s]” and because his statements were involuntary under the totality of the circumstances test. After a suppression hearing at which DiCostanzo and J.D.B. testified, the trial court denied the motion, deciding that J.D.B. was not in custody at the time of the schoolhouse interrogation and that his statements were voluntary. As a result, J.D.B. entered a transcript of admission to all four counts, renewing his objection to the denial of his motion to suppress, and the court adjudicated J.D.B. delinquent.

A divided panel of the North Carolina Court of Appeals affirmed. The North Carolina Supreme Court held, over two dissents, that J.D.B. was not in custody when he confessed, “declin[ing] to extend the test for custody to include consideration of the age … of an individual subjected to questioning by police.” We granted certiorari to determine whether the Miranda custody analysis includes consideration of a juvenile suspect’s age.

II

A

Any police interview of an individual suspected of a crime has “coercive aspects to it.” Only those interrogations that occur while a suspect is in police custody, however, “heighte[n] the risk” that statements obtained are not the product of the suspect’s free choice.

By its very nature, custodial police interrogation entails “inherently compelling pressures.” Even for an adult, the physical and psychological isolation of custodial interrogation can “undermine the individual’s will to resist and … compel him to speak where he would not otherwise do so freely.” Indeed, the pressure of custodial interrogation is so immense that it “can induce a frighteningly high percentage of people to confess to crimes they never committed.” That risk is all the more troubling—and recent studies suggest, all the more acute—when the subject of custodial interrogation is a juvenile.

Recognizing that the inherently coercive nature of custodial interrogation “blurs the line between voluntary and involuntary statements,” this Court in Miranda adopted a set of prophylactic measures designed to safeguard the constitutional guarantee against self-incrimination. Because these measures protect the individual against the coercive nature of custodial interrogation, they are required “‘only where there has been such a restriction on a person’s freedom as to render him “in custody.”’” As we have repeatedly emphasized, whether a suspect is “in custody” is an objective inquiry.

The benefit of the objective custody analysis is that it is “designed to give clear guidance to the police.”

B

The State and its amici contend that a child’s age has no place in the custody analysis, no matter how young the child subjected to police questioning. We cannot agree. In some circumstances, a child’s age “would have affected how a reasonable person” in the suspect’s position “would perceive his or her freedom to leave.” That is, a reasonable child subjected to police questioning will sometimes feel pressured to submit when a reasonable adult would feel free to go. We think it clear that courts can account for that reality without doing any damage to the objective nature of the custody analysis.

A child’s age is far “more than a chronological fact.” It is a fact that “generates commonsense conclusions about behavior and perception.” Such conclusions apply broadly to children as a class. And, they are self-evident to anyone who was a child once himself, including any police officer or judge.

Time and again, this Court has drawn these commonsense conclusions for itself. We have observed that children “generally are less mature and responsible than adults,” that they “often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them,” that they “are more vulnerable or susceptible to … outside pressures” than adults, and so on. Addressing the specific context of police interrogation, we have observed that events that “would leave a man cold and unimpressed can overawe and overwhelm a lad in his early teens.” Describing no one child in particular, these observations restate what “any parent knows”—indeed, what any person knows—about children generally.

Our various statements to this effect are far from unique. The law has historically reflected the same assumption that children characteristically lack the capacity to exercise mature judgment and possess only an incomplete ability to understand the world around them. Like this Court’s own generalizations, the legal disqualifications placed on children as a class—e.g., limitations on their ability to alienate property, enter a binding contract enforceable against them, and marry without parental consent—exhibit the settled understanding that the differentiating characteristics of youth are universal.

Indeed, even where a “reasonable person” standard otherwise applies, the common law has reflected the reality that children are not adults. In negligence suits, for instance, where liability turns on what an objectively reasonable person would do in the circumstances, “[a]ll American jurisdictions accept the idea that a person’s childhood is a relevant circumstance” to be considered.

As this discussion establishes, “[o]ur history is replete with laws and judicial recognition” that children cannot be viewed simply as miniature adults. We see no justification for taking a different course here[,] [s]o long as the child’s age was known to the officer at the time of the interview, or would have been objectively apparent to any reasonable officer. The same “wide basis of community experience” that makes it possible, as an objective matter, “to determine what is to be expected” of children in other contexts likewise makes it possible to know what to expect of children subjected to police questioning.

In other words, a child’s age differs from other personal characteristics that, even when known to police, have no objectively discernible relationship to a reasonable person’s understanding of his freedom of action. Precisely because childhood yields objective conclusions like those we have drawn ourselves—among others, that children are “most susceptible to influence” and “outside pressures,”—considering age in the custody analysis in no way involves a determination of how youth “subjectively affect[s] the mindset” of any particular child.

In fact, in many cases involving juvenile suspects, the custody analysis would be nonsensical absent some consideration of the suspect’s age. This case is a prime example. Were the court precluded from taking J.D.B.’s youth into account, it would be forced to evaluate the circumstances present here through the eyes of a reasonable person of average years. In other words, how would a reasonable adult understand his situation, after being removed from a seventh-grade social studies class by a uniformed school resource officer; being encouraged by his assistant principal to “do the right thing”; and being warned by a police investigator of the prospect of juvenile detention and separation from his guardian and primary caretaker? To describe such an inquiry is to demonstrate its absurdity. Neither officers nor courts can reasonably evaluate the effect of objective circumstances that, by their nature, are specific to children without accounting for the age of the child subjected to those circumstances.

Indeed, the effect of the schoolhouse setting cannot be disentangled from the identity of the person questioned. A student—whose presence at school is compulsory and whose disobedience at school is cause for disciplinary action—is in a far different position than, say, a parent volunteer on school grounds to chaperone an event, or an adult from the community on school grounds to attend a basketball game. Without asking whether the person “questioned in school” is a “minor,” the coercive effect of the schoolhouse setting is unknowable.

Reviewing the question de novo today, we hold that so long as the child’s age was known to the officer at the time of police questioning, or would have been objectively apparent to a reasonable officer, its inclusion in the custody analysis is consistent with the objective nature of that test. This is not to say that a child’s age will be a determinative, or even a significant, factor in every case. It is, however, a reality that courts cannot simply ignore.

The question remains whether J.D.B. was in custody when police interrogated him. We remand for the state courts to address that question, this time taking account of all of the relevant circumstances of the interrogation, including J.D.B.’s age at the time. The judgment of the North Carolina Supreme Court is reversed, and the case is remanded for proceedings not inconsistent with this opinion.

Justice ALITO, with whom THE CHIEF JUSTICE, Justice SCALIA, and Justice THOMAS join, dissenting.

The Court’s decision in this case may seem on first consideration to be modest and sensible, but in truth it is neither. It is fundamentally inconsistent with one of the main justifications for the Miranda rule: the perceived need for a clear rule that can be easily applied in all cases. And today’s holding is not needed to protect the constitutional rights of minors who are questioned by the police.

Miranda’s prophylactic regime places a high value on clarity and certainty. Dissatisfied with the highly fact-specific constitutional rule against the admission of involuntary confessions, the Miranda Court set down rigid standards that often require courts to ignore personal characteristics that may be highly relevant to a particular suspect’s actual susceptibility to police pressure. This rigidity, however, has brought with it one of Miranda’s principal strengths—“the ease and clarity of its application” by law enforcement officials and courts. A key contributor to this clarity, at least up until now, has been Miranda’s objective reasonable-person test for determining custody.

Miranda’s custody requirement is based on the proposition that the risk of unconstitutional coercion is heightened when a suspect is placed under formal arrest or is subjected to some functionally equivalent limitation on freedom of movement. When this custodial threshold is reached, Miranda warnings must precede police questioning. But in the interest of simplicity, the custody analysis considers only whether, under the circumstances, a hypothetical reasonable person would consider himself to be confined.

Many suspects, of course, will differ from this hypothetical reasonable person. Some, including those who have been hardened by past interrogations, may have no need for Miranda warnings at all. And for other suspects—those who are unusually sensitive to the pressures of police questioning—Miranda warnings may come too late to be of any use. That is a necessary consequence of Miranda’s rigid standards, but it does not mean that the constitutional rights of these especially sensitive suspects are left unprotected. A vulnerable defendant can still turn to the constitutional rule against actual coercion and contend that that his confession was extracted against his will.

Today’s decision shifts the Miranda custody determination from a one-size-fits-all reasonable-person test into an inquiry that must account for at least one individualized characteristic—age—that is thought to correlate with susceptibility to coercive pressures. Age, however, is in no way the only personal characteristic that may correlate with pliability, and in future cases the Court will be forced to choose between two unpalatable alternatives. It may choose to limit today’s decision by arbitrarily distinguishing a suspect’s age from other personal characteristics—such as intelligence, education, occupation, or prior experience with law enforcement—that may also correlate with susceptibility to coercive pressures. Or, if the Court is unwilling to draw these arbitrary lines, it will be forced to effect a fundamental transformation of the Miranda custody test—from a clear, easily applied prophylactic rule into a highly fact-intensive standard resembling the voluntariness test that the Miranda Court found to be unsatisfactory.

For at least three reasons, there is no need to go down this road. First, many minors subjected to police interrogation are near the age of majority, and for these suspects the one-size-fits-all Miranda custody rule may not be a bad fit. Second, many of the difficulties in applying the Miranda custody rule to minors arise because of the unique circumstances present when the police conduct interrogations at school. The Miranda custody rule has always taken into account the setting in which questioning occurs, and accounting for the school setting in such cases will address many of these problems. Third, in cases like the one now before us, where the suspect is especially young, courts applying the constitutional voluntariness standard can take special care to ensure that incriminating statements were not obtained through coercion. Safeguarding the constitutional rights of minors does not require the extreme makeover of Miranda that today’s decision may portend.

Notes, Comments, and Questions

The dissent in J.D.B raised concerns that the majority’s decision will lead to a slippery slope. Should the court consider factors like race, sex, and socioeconomic status in the Miranda analysis? What are potential pros and cons of such an approach?

In addition, the dissent’s argument presents an opportunity to consider “slippery slope” arguments more generally.¹ For a slippery slope claim to be compelling, the proponent must establish two things: First, the slope is truly slippery. Second, the place down at the bottom of the slope is a bad place to be. For example, when the Court decided Lawrence v. Texas, 539 U.S. 558 (2003), opponents of the decision attacked the majority’s reasoning, often employing slippery slope arguments.

The Court’s decision in Lawrence prohibits states from criminalizing consensual sexual activity among adults of the same sex (at least if the same activity would be lawful among opposite-sex couples). In his dissent, Justice Scalia decried the Court’s decision to overrule Bowers v. Hardwick, 478 U.S. 186 (1986), writing, “State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices.”

Supporters of the Lawrence decision responded to Scalia’s slippery slope arguments on two fronts. First, for some items, the slope was not actually slippery, they argued (for example, bigamy need not follow from ending criminal punishment for same-sex consensual sex). Second, for some items, such as same-sex marriage, the bottom of the slope looks great. (In other words, yes, the slope there is slippery, and that’s just fine.) Considering these two questions—is it slippery, and if so is that bad—will help students evaluate slippery slope arguments in various contexts.

Further, consider the prospect of a police department seeking to enforce criminal laws against adultery. What would be involved in seeking a warrant to search a house for evidence? How would communities react when homes were raided, and phones seized and searched, as officers sought proof of extramarital affairs?

Police investigations of masturbation seem even sillier. That said, the image of police establishing probable cause to search a house for proof of masturbation (“Well, Your Honor, a teenager lives there.”)—and then emerging triumphantly with seized evidence—illustrates the power entrusted in the legislature to decide what counts as a “crime.” Because tobacco is legal to possess and use on public sidewalks, a smoker can walk down the street without fear of being arrested, searched incident to the arrest, and then taken to jail, where officials can conduct far more invasive searches. Because marijuana is illegal to possess (and even in places where use has been legalized generally may not be smoked in public), a marijuana user walking down the street with a joint enjoys no such security.²

Ultimately, the application of every doctrine in this book depends upon the definition of what is and is not a crime, as well as what crimes (and persons) police choose to investigate.

The next case provides a stark example of the difference between “custody” under Miranda and the definition of a Fourth Amendment “seizure.” The Court has long held that when police stop a car, the driver is “seized” and can later object if the stop was unlawful. See Delaware v. Prouse, 440 U.S. 648, 653 (1979). In 2007, the Court announced the additional holding that everyone in the car—including passengers—is “seized” during a vehicle stop. See Brendlin v. California, 551 U.S. 249 (2007). The Court explained: “We think that in these circumstances any reasonable passenger would have understood the police officers to be exercising control to the point that no one in the car was free to depart without police permission. A traffic stop necessarily curtails the travel a passenger has chosen just as much as it halts the driver, diverting both from the stream of traffic to the side of the road, and the police activity that normally amounts to intrusion on ‘privacy and personal security’ does not normally (and did not here) distinguish between passenger and driver.”

Nonetheless, the Court held in Berkemer v. McCarty—in an opinion by Justice Marshall, normally among the Justices most supportive of expanding the scope of the Miranda Rule—that police need not recite Miranda warnings before questioning a driver during a vehicle stop. (The opinion was nearly unanimous. Justice Stevens wrote separately that the Court should not have reached the issue. No Justice disagreed on the merits.) Students should consider why the Court declined to apply the Miranda Rule to interrogations conducted during traffic stops.

Supreme Court of the United States

Harry J. Berkemer, Sheriff of Franklin County, Ohio v. Richard N. McCarty

Decided July 2, 1984 – 468 U.S. 420

Justice MARSHALL delivered the opinion of the Court.

This case presents two related questions: First, does our decision in Miranda v. Arizona govern the admissibility of statements made during custodial interrogation by a suspect accused of a misdemeanor traffic offense? Second, does the roadside questioning of a motorist detained pursuant to a traffic stop constitute custodial interrogation for the purposes of the doctrine enunciated in Miranda?

I

A

The parties have stipulated to the essential facts. On the evening of March 31, 1980, Trooper Williams of the Ohio State Highway Patrol observed respondent’s car weaving in and out of a lane on Interstate Highway 270. After following the car for two miles, Williams forced respondent to stop and asked him to get out of the vehicle. When respondent complied, Williams noticed that he was having difficulty standing. At that point, “Williams concluded that [respondent] would be charged with a traffic offense and, therefore, his freedom to leave the scene was terminated.” However, respondent was not told that he would be taken into custody. Williams then asked respondent to perform a field sobriety test, commonly known as a “balancing test.” Respondent could not do so without falling.

While still at the scene of the traffic stop, Williams asked respondent whether he had been using intoxicants. Respondent replied that “he had consumed two beers and had smoked several joints of marijuana a short time before.” Respondent’s speech was slurred, and Williams had difficulty understanding him. Williams thereupon formally placed respondent under arrest and transported him in the patrol car to the Franklin County Jail.

At the jail, respondent was given an intoxilyzer test to determine the concentration of alcohol in his blood. The test did not detect any alcohol whatsoever in respondent’s system. Williams then resumed questioning respondent in order to obtain information for inclusion in the State Highway Patrol Alcohol Influence Report. Respondent answered affirmatively a question whether he had been drinking. When then asked if he was under the influence of alcohol, he said, “I guess, barely.” Williams next asked respondent to indicate on the form whether the marihuana he had smoked had been treated with any chemicals. In the section of the report headed “Remarks,” respondent wrote, “No ang[el] dust or PCP in the pot. Rick McCarty.”

At no point in this sequence of events did Williams or anyone else tell respondent that he had a right to remain silent, to consult with an attorney, and to have an attorney appointed for him if he could not afford one.

B

Respondent was charged with operating a motor vehicle while under the influence of alcohol and/or drugs. Under Ohio law, that offense is a first-degree misdemeanor and is punishable by fine or imprisonment for up to six months. Incarceration for a minimum of three days is mandatory.

Respondent moved to exclude the various incriminating statements he had made to Trooper Williams on the ground that introduction into evidence of those statements would violate the Fifth Amendment insofar as he had not been informed of his constitutional rights prior to his interrogation. When the trial court denied the motion, respondent pleaded “no contest” and was found guilty. He was sentenced to 90 days in jail, 80 of which were suspended, and was fined $300, $100 of which were suspended.

On appeal to the Franklin County Court of Appeals, respondent renewed his constitutional claim. Relying on a prior decision by the Ohio Supreme Court, which held that the rule announced in Miranda “is not applicable to misdemeanors,” the Court of Appeals rejected respondent’s argument and affirmed his conviction. The Ohio Supreme Court dismissed respondent’s appeal on the ground that it failed to present a “substantial constitutional question.”

Respondent then filed an action for a writ of habeas corpus in the District Court for the Southern District of Ohio. The District Court dismissed the petition, holding that “Miranda warnings do not have to be given prior to in custody interrogation of a suspect arrested for a traffic offense.”

A divided panel of the Court of Appeals for the Sixth Circuit reversed, holding that “Miranda warnings must be given to all individuals prior to custodial interrogation, whether the offense investigated be a felony or a misdemeanor traffic offense.” In applying this principle to the facts of the case, the Court of Appeals distinguished between the statements made by respondent before and after his formal arrest. The postarrest statements, the court ruled, were plainly inadmissible; because respondent was not warned of his constitutional rights prior to or “[a]t the point that Trooper Williams took [him] to the police station,” his ensuing admissions could not be used against him. The court’s treatment of respondent’s prearrest statements was less clear. It eschewed a holding that “the mere stopping of a motor vehicle triggers Miranda” but did not expressly rule that the statements made by respondent at the scene of the traffic stop could be used against him. In the penultimate paragraph of its opinion, the court asserted that “[t]he failure to advise [respondent] of his constitutional rights rendered at least some of his statements inadmissible,” suggesting that the court was uncertain as to the status of the prearrest confessions. “Because [respondent] was convicted on inadmissible evidence,” the court deemed it necessary to vacate his conviction and order the District Court to issue a writ of habeas corpus. However, the Court of Appeals did not specify which statements, if any, could be used against respondent in a retrial.

We granted certiorari to resolve confusion in the federal and state courts regarding the applicability of our ruling in Miranda to interrogations involving minor offenses and to questioning of motorists detained pursuant to traffic stops.

II

In the years since the decision in Miranda, we have frequently reaffirmed the central principle established by that case: if the police take a suspect into custody and then ask him questions without informing him of the rights enumerated above, his responses cannot be introduced into evidence to establish his guilt.

Petitioner asks us to carve an exception out of the foregoing principle. When the police arrest a person for allegedly committing a misdemeanor traffic offense and then ask him questions without telling him his constitutional rights, petitioner argues, his responses should be admissible against him. We cannot agree.

One of the principal advantages of the doctrine that suspects must be given warnings before being interrogated while in custody is the clarity of that rule. The exception to Miranda proposed by petitioner would substantially undermine this crucial advantage of the doctrine. The police often are unaware when they arrest a person whether he may have committed a misdemeanor or a felony. Consider, for example, the reasonably common situation in which the driver of a car involved in an accident is taken into custody. Under Ohio law, both driving while under the influence of intoxicants and negligent vehicular homicide are misdemeanors, while reckless vehicular homicide is a felony. When arresting a person for causing a collision, the police may not know which of these offenses he may have committed. Indeed, the nature of his offense may depend upon circumstances unknowable to the police, such as whether the suspect has previously committed a similar offense or has a criminal record of some other kind. It may even turn upon events yet to happen, such as whether a victim of the accident dies. It would be unreasonable to expect the police to make guesses as to the nature of the criminal conduct at issue before deciding how they may interrogate the suspect.

Equally importantly, the doctrinal complexities that would confront the courts if we accepted petitioner’s proposal would be Byzantine. Difficult questions quickly spring to mind: For instance, investigations into seemingly minor offenses sometimes escalate gradually into investigations into more serious matters; at what point in the evolution of an affair of this sort would the police be obliged to give Miranda warnings to a suspect in custody? What evidence would be necessary to establish that an arrest for a misdemeanor offense was merely a pretext to enable the police to interrogate the suspect (in hopes of obtaining information about a felony) without providing him the safeguards prescribed by Miranda? The litigation necessary to resolve such matters would be time-consuming and disruptive of law enforcement. And the end result would be an elaborate set of rules, interlaced with exceptions and subtle distinctions, discriminating between different kinds of custodial interrogations. Neither the police nor criminal defendants would benefit from such a development.

We do not suggest that there is any reason to think improper efforts were made in this case to induce respondent to make damaging admissions. More generally, we have no doubt that, in conducting most custodial interrogations of persons arrested for misdemeanor traffic offenses, the police behave responsibly and do not deliberately exert pressures upon the suspect to confess against his will. But the same might be said of custodial interrogations of persons arrested for felonies. The purposes of the safeguards prescribed by Miranda are to ensure that the police do not coerce or trick captive suspects into confessing, to relieve the “‘inherently compelling pressures’” generated by the custodial setting itself, “‘which work to undermine the individual’s will to resist,’” and as much as possible to free courts from the task of scrutinizing individual cases to try to determine, after the fact, whether particular confessions were voluntary. Those purposes are implicated as much by in-custody questioning of persons suspected of misdemeanors as they are by questioning of persons suspected of felonies.

Petitioner’s second argument is that law enforcement would be more expeditious and effective in the absence of a requirement that persons arrested for traffic offenses be informed of their rights. Again, we are unpersuaded. The occasions on which the police arrest and then interrogate someone suspected only of a misdemeanor traffic offense are rare. The police are already well accustomed to giving Miranda warnings to persons taken into custody. Adherence to the principle that all suspects must be given such warnings will not significantly hamper the efforts of the police to investigate crimes.

We hold therefore that a person subjected to custodial interrogation is entitled to the benefit of the procedural safeguards enunciated in Miranda, regardless of the nature or severity of the offense of which he is suspected or for which he was arrested.

The implication of this holding is that the Court of Appeals was correct in ruling that the statements made by respondent at the County Jail were inadmissible. There can be no question that respondent was “in custody” at least as of the moment he was formally placed under arrest and instructed to get into the police car. Because he was not informed of his constitutional rights at that juncture, respondent’s subsequent admissions should not have been used against him.

III

To assess the admissibility of the self-incriminating statements made by respondent prior to his formal arrest, we are obliged to address a second issue concerning the scope of our decision in Miranda: whether the roadside questioning of a motorist detained pursuant to a routine traffic stop should be considered “custodial interrogation.” Respondent urges that it should, on the ground that Miranda by its terms applies whenever “a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Petitioner contends that a holding that every detained motorist must be advised of his rights before being questioned would constitute an unwarranted extension of the Miranda doctrine.

It must be acknowledged at the outset that a traffic stop significantly curtails the “freedom of action” of the driver and the passengers, if any, of the detained vehicle. Under the law of most States, it is a crime either to ignore a policeman’s signal to stop one’s car or, once having stopped, to drive away without permission. Certainly few motorists would feel free either to disobey a directive to pull over or to leave the scene of a traffic stop without being told they might do so. Partly for these reasons, we have long acknowledged that “stopping an automobile and detaining its occupants constitute a ‘seizure’ within the meaning of [the Fourth] Amendmen[t], even though the purpose of the stop is limited and the resulting detention quite brief.”

However, we decline to accord talismanic power to the phrase in the Miranda opinion emphasized by respondent. Fidelity to the doctrine announced in Miranda requires that it be enforced strictly, but only in those types of situations in which the concerns that powered the decision are implicated. Thus, we must decide whether a traffic stop exerts upon a detained person pressures that sufficiently impair his free exercise of his privilege against self-incrimination to require that he be warned of his constitutional rights.

Two features of an ordinary traffic stop mitigate the danger that a person questioned will be induced “to speak where he would not otherwise do so freely.” First, detention of a motorist pursuant to a traffic stop is presumptively temporary and brief. The vast majority of roadside detentions last only a few minutes. A motorist’s expectations, when he sees a policeman’s light flashing behind him, are that he will be obliged to spend a short period of time answering questions and waiting while the officer checks his license and registration, that he may then be given a citation, but that in the end he most likely will be allowed to continue on his way. In this respect, questioning incident to an ordinary traffic stop is quite different from stationhouse interrogation, which frequently is prolonged, and in which the detainee often is aware that questioning will continue until he provides his interrogators the answers they seek.

Second, circumstances associated with the typical traffic stop are not such that the motorist feels completely at the mercy of the police. To be sure, the aura of authority surrounding an armed, uniformed officer and the knowledge that the officer has some discretion in deciding whether to issue a citation, in combination, exert some pressure on the detainee to respond to questions. But other aspects of the situation substantially offset these forces. Perhaps most importantly, the typical traffic stop is public, at least to some degree. Passersby, on foot or in other cars, witness the interaction of officer and motorist. This exposure to public view both reduces the ability of an unscrupulous policeman to use illegitimate means to elicit self-incriminating statements and diminishes the motorist’s fear that, if he does not cooperate, he will be subjected to abuse. The fact that the detained motorist typically is confronted by only one or at most two policemen further mutes his sense of vulnerability. In short, the atmosphere surrounding an ordinary traffic stop is substantially less “police dominated” than that surrounding the kinds of interrogation at issue in Miranda itself and in the subsequent cases in which we have applied Miranda.

In both of these respects, the usual traffic stop is more analogous to a so-called “Terry stop” than to a formal arrest. The comparatively nonthreatening character of detentions of this sort explains the absence of any suggestion in our opinions that Terry stops are subject to the dictates of Miranda. The similarly noncoercive aspect of ordinary traffic stops prompts us to hold that persons temporarily detained pursuant to such stops are not “in custody” for the purposes of Miranda.

Turning to the case before us, we find nothing in the record that indicates that respondent should have been given Miranda warnings at any point prior to the time Trooper Williams placed him under arrest. For the reasons indicated above, we reject the contention that the initial stop of respondent’s car, by itself, rendered him “in custody.” And respondent has failed to demonstrate that, at any time between the initial stop and the arrest, he was subjected to restraints comparable to those associated with a formal arrest. Only a short period of time elapsed between the stop and the arrest. At no point during that interval was respondent informed that his detention would not be temporary. Although Trooper Williams apparently decided as soon as respondent stepped out of his car that respondent would be taken into custody and charged with a traffic offense, Williams never communicated his intention to respondent. A policeman’s unarticulated plan has no bearing on the question whether a suspect was “in custody” at a particular time; the only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation. Nor do other aspects of the interaction of Williams and respondent support the contention that respondent was exposed to “custodial interrogation” at the scene of the stop. From aught that appears in the stipulation of facts, a single police officer asked respondent a modest number of questions and requested him to perform a simple balancing test at a location visible to passing motorists. Treatment of this sort cannot fairly be characterized as the functional equivalent of formal arrest.

We conclude, in short, that respondent was not taken into custody for the purposes of Miranda until Williams arrested him. Consequently, the statements respondent made prior to that point were admissible against him.

Accordingly, the judgment of the Court of Appeals is [a]ffirmed.

Notes, Comments, and Questions

As the Court noted near the end of its opinion in Berkemer, the definition of “custody” under Miranda does not include seizures conducted pursuant to Terry v. Ohio on the basis of reasonable suspicion.

The Practical Consequences of the Miranda Rule

Before exploring more of the Miranda doctrine—defining “interrogation,” learning what counts as a “waiver” of Miranda rights, and so on—we pause here to consider the practical effects of the doctrine. The Miranda Rule is now more than 50 years old, and debate rages on straightforward questions such as: (1) does the rule reduce the ability of police to obtain voluntary confessions,³ (2) does it provide any real benefits to suspects, or to society as a whole, such as by promoting meaningful free choice and protecting the dignity of suspects under interrogation, (3) has it affected the crime rate?

For example, Professor Paul Cassell has argued that Miranda has increased the crime rate while providing no compelling benefits to compensate.⁴ Challenging a perceived academic consensus that Miranda’s practical effects on crime-fighting have been “negligible,” Professor Cassell offers an empirical analysis of the number of confessions police never obtain because of Miranda. He includes a corresponding analysis of lost convictions—as well as lenient plea bargains necessitated by missing evidence. He begins with the “common sense” premise that “[s]urely fewer persons will confess if police must warn them of their right to silence, obtain affirmative waivers from them, and end the interrogation if they ask for a lawyer or for questioning to stop.” He also quotes the Miranda dissent of Justice White: “In some unknown number of cases the Court’s rule will return a killer, a rapist or other criminal to the streets and to the environment which produced him, to repeat his crime whenever it pleases him.”

While acknowledging that any empirical analysis must be a “sound estimate” rather than an exact calculation, Cassell argues that the costs are severe—well in excess of the insignificant harms commonly imagined by scholars and judges.⁵ He concludes that each year, Miranda results in tens of thousands of “lost cases” for violent crimes, along with tens of thousands more for property crimes. His numbers are based on an estimated loss of 3.8 percent of convictions in serious cases.

Replying to Cassell, Professor Stephen Schulhofer reached the opposite conclusion.⁶ After adjusting for what he describes as Cassell’s faulty data analysis and biased selection of samples, Schulhofer concludes, “For all practical purposes, Miranda’s empirically detectable harm to law enforcement shrinks virtually to zero.” Schulhofer then offers a robust defense of Miranda’s benefits, noting that “[t]o carry the day, an alternative to Miranda not only must promise more convictions, but also must preserve justice and respect for constitutional values in the 99% (or perhaps only 96.2%) of convictions that will be obtained successfully under either regime—and in all the arrests that will not produce convictions under either regime.”⁷

Noting that—according to his own analysis—police have managed to obtain confessions under Miranda at rates similar to those of the old days, Schulhofer confronts the question of why then we should care about Miranda. That is, if it doesn’t reduce confessions, why bother? He replies that the Court’s goal in Miranda was not “to reduce or eliminate confessions,” recalling that the Court explicitly established a procedure “to ensure that confessions could continue to be elicited and used.”⁸ “Miranda’s stated objective was not to eliminate confessions, but to eliminate compelling pressure in the interrogation process.”⁹ In other words, under Miranda, police still get confessions, but they get them by tricking suspects (and exploiting their overconfidence) instead of by “pressure and fear.” That difference, to Schulhofer, honors the Self-Incrimination Clause of the Fifth Amendment while imposing “detectable social costs [that] are vanishingly small.”¹⁰

A decade later, Professors George C. Thomas III and Richard A. Leo reviewed “two generations of scholarship” and concluded that Miranda has “exerted a negligible effect” on the ability of police to obtain confessions.¹¹ They argued, as well, that Miranda’s “practical benefits—as a procedural safeguard against compulsion, coercion, false confessions, or any of the pernicious interrogation techniques that the Warren Court excoriated in the Miranda decision”—are similarly negligible.¹² They offered several potentially overlapping explanations for their findings of negligible effects. First, suspects know of their rights from television and elsewhere, yet overwhelming majorities “waive their rights and thus appear to consent to interrogation.”¹³ (They analogized Miranda warnings to those on cigarette packages.) Second, police have learned to recite the Miranda warnings in a way that encourages cooperation. Third, Supreme Court decisions have limited the effects of the Miranda Rule (for example, by making it easy for prosecutors to demonstrate “waiver”). Indeed, police and prosecutors now largely support Miranda and report that it does not interfere with their work.

The broad consensus is that Miranda is not a serious impediment to policework, meaning that suspects regularly confess to serious crimes despite being explicitly informed (1) that they need not do so and (2) that doing so could cause them harm in court. Students interested in how police obtain confessions should see an article titled Ordinary Police Interrogation in the United States: The Destruction of Meaning and Persons: A Psychoanalytic-Ethical Investigation.¹⁴ The authors describe a suspect who falsely confessed to murdering his sister. The interrogation was videotaped, allowing analysis of how an innocent person (conclusive evidence of his innocence was later discovered) was pressured to confess by lawful police tactics. The authors argue, “The goal of interrogation is not to gather information. It is to obtain confessions.”¹⁵ That is, once police decide during an investigation who they believe committed the crime, the purpose of interrogation is to get the admissions needed to convict the suspect.

One author attended a training seminar for police interrogators, learning techniques such as how to “evade informing suspects of their rights during interrogation by giving suspects the impression that they have been arrested without in fact placing them under arrest.” He reports, “Reid seminar attendees are told to walk into interviews with thick folders, videocassettes, or similar props spilling out to make subjects believe interrogators have evidence against them.” After describing several other techniques effective against the innocent and guilty alike, the authors state, “The interrogator, armed and trained with these powerful rhetorical tools developed and refined over seventy years of systematic study and placed in the position of power and authority over the suspect, not surprisingly often extracts admissions of criminal conduct. But such admissions do not end the interrogation.”¹⁶ Because police prefer confessions that match other evidence, interrogators follow the initial admissions with leading questions designed to conform the suspect’s story to what is already known about a crime.

A discussion of best practices for interrogations is beyond the scope of this chapter. It will suffice to state that if questioners seek to learn the truth during questioning—as opposed to confirming existing beliefs and obtaining evidence for trial—the process described in Ordinary Police Interrogation would be avoided.¹⁷

Regardless of one’s views on the ultimate practical effects of Miranda, one cannot deny that Supreme Court doctrine affects the number of confessions admitted as evidence against defendants. In our next chapter, we review how the Court has defined “interrogation” under Miranda.