Custody

Custody

Miranda's safeguards attach at a particular point in an encounter, and the first trigger is custody. The Court defined custodial interrogation as 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.¹ That definition has two halves that do separate work. The interrogation half asks what the officers did, and the custody half asks what condition the person was in when they did it. This section concerns the custody half, and its answer decides whether the officer's next question must be preceded by warnings at all.

The Court tied the safeguards to the setting of the four cases before it. In each, the defendant was questioned in a room cut off from the outside world, and the Court described the shared feature as incommunicado interrogation of individuals in a police-dominated atmosphere.² Warnings exist to counter that atmosphere. When an officer questions a person who is not held, the pressure the warnings answer is absent, so there is nothing for them to dispel. The Court said as much about general on-the-scene questioning as to the facts surrounding a crime, and about general questioning of citizens in the fact-finding process, which its holding left untouched because the compelling atmosphere of in-custody interrogation is not necessarily present in those settings.³ A rule demanding warnings in every such encounter would burden ordinary investigation, since an officer could not ask a bystander at a crime scene what happened without first reciting rights, and it would shield no one from compulsion that does not exist. Students lose this issue when they apply Miranda to every police question without first asking whether the person is in custody.

The inquiry in the sections below is therefore the same each time: does the situation carry the pressures of a police-dominated setting that the warnings are meant to counteract? The next section sets out the general test for deciding when a person is in custody. The two after it apply that test to settings where the answer is less obvious, namely the roadside traffic stop, where a driver is detained by police in an ordinary public place, and the questioning of a person already serving a sentence, who is confined before the officer says a word.

The Custody Test

Custody is decided by a two-step inquiry, and the Court set out both steps in Howes v. Fields.⁴ The first step asks whether, in light of the objective circumstances of the interrogation, a reasonable person would have felt free to terminate the interrogation and leave.⁵ The standard is that of a reasonable person rather than the suspect's private fears or the officer's unstated intentions. That gives officers something they can apply on the spot, since they must decide whether warnings are needed before the questioning starts and cannot know what a particular suspect is thinking. Courts look at all of the circumstances surrounding the questioning. The factors that matter include where it took place, how long it lasted, what the officers said during it, whether the person was physically restrained, and whether the person was released when it ended.⁶ The facts of Howes show several of those factors at work. The deputies told Fields at the start of the interview, and again later, that he could leave and return to his cell, and they did not handcuff him, yet they were armed and the questioning ran for hours.⁷ Factors that point in opposite directions are the reason no single one of them decides the question.

Losing the freedom to leave is necessary for custody, but it does not finish the analysis. The Court has described the freedom-of-movement inquiry as identifying "only a necessary and not a sufficient condition for Miranda custody."⁸ A person who would not feel free to leave therefore faces a second question, which is whether the environment presents the same inherently coercive pressures as the station-house questioning at issue in Miranda itself.⁹ The second step exists because custody, as the Court uses the word, is a term of art for circumstances that generally present a serious danger of coercion, and warnings are the remedy for that danger.¹⁰ Some restraints on movement lack the isolating, pressuring features that motivated Miranda, so the second question stops the first from sweeping in situations where warnings would dispel nothing. The Court applied that reasoning in Howes when it rejected a categorical rule under which a prisoner is always in custody if taken aside and questioned about events outside the prison. Imprisonment, private questioning, and questions about the outside world are not necessarily enough to create a custodial situation.¹¹ Even a station-house setting does not settle the matter, since Miranda did not establish that questioning at the station house is always custodial.¹² Students lose this issue when they treat the first step as the whole test, or when they assume that a police building makes the questioning custodial.

A formal arrest is the clearest case of custody, because custody exists during a formal arrest or when a person is restrained to the degree associated with one.¹³ An arrested person is plainly not free to leave, and being held and questioned by police is the very setting the warnings were designed for, so both steps are met with little discussion. At the other end, questioning of a suspect who has not been detained and can leave at will is noncustodial, and warnings are ordinarily not given before it.¹⁴ The real disputes arise between those poles, and the next two sections take up two settings of that kind.

An arrest brings with it other legal consequences that should be kept apart from the Miranda consequence. In United States v. Robinson, the Court held that once officers make a valid custodial arrest, they may fully search the arrestee's person incident to it, whether or not they fear for their safety or expect to find evidence.¹⁵ That search power is a distinct authority that belongs to the law of searches and seizures, and it flows from the arrest without any questioning at all. Miranda is concerned with statements obtained by questioning a person held by police, so neither the arrest nor the search obliges officers to give warnings by itself. Warnings become necessary when officers interrogate a person who is in custody, because custodial interrogation is police questioning of a detained person.¹⁶ Interrogation is the second trigger, and the section on what counts as interrogation takes it up.

Roadside Traffic Stops

The roadside traffic stop is the setting where the custody question first becomes hard, because the driver is detained by an officer but sits on a public road, usually for a few minutes. Berkemer v. McCarty answered two separate questions about that setting.¹⁹ The first is whether a minor offense such as a traffic misdemeanor falls outside Miranda, and the answer is no. The second is whether an ordinary traffic stop counts as custody, and the answer is usually no as well. The two answers fit together because the first assumes that custody exists and refuses to let the seriousness of the charge matter, while the second asks whether custody exists at all.

The facts of the case show both questions arising in a single evening. A state trooper, Williams, saw McCarty's car weaving between lanes, followed it for two miles, and forced it to stop. McCarty had difficulty standing when he got out, and Williams concluded that he would be charged with a traffic offense and was no longer free to leave. Williams had him attempt a balancing test, which he could not do without falling, and then asked at the roadside whether he had been using intoxicants. McCarty answered that he had drunk two beers and smoked several joints of marijuana. Only then did Williams formally arrest him and take him to the county jail, where an intoxilyzer test detected no alcohol and Williams resumed questioning for an alcohol influence report. No one gave warnings at any point.²⁰

The first half of the decision rejects any exception for minor offenses. The State argued that when police arrest a person for a misdemeanor traffic offense and question the person without warnings, the answers should be admissible. The Court refused, holding that a person subjected to custodial interrogation receives the Miranda safeguards regardless of the nature or severity of the offense.²¹ Two reasons support that result. Custodial interrogation is inherently coercive, and nothing suggests that the pressure shrinks because the charge is a misdemeanor.²² The other reason is clarity: the Miranda rule tells officers and courts with specificity what is permitted, and an exception keyed to the grade of the offense would destroy that advantage because police often do not know at the moment of arrest whether they are dealing with a misdemeanor or a felony.²³ The Court's own example was a driver taken into custody after an accident. Under Ohio law drunk driving and negligent vehicular homicide were misdemeanors while reckless vehicular homicide was a felony, and which one applied could turn on a prior record or on whether an injured victim later died.²⁴ A rule that makes an officer guess the grade of the offense before deciding whether to warn turns every arrest into a gamble, and a wrong guess would cost the prosecution the statement.

The second half of the decision goes the other way for routine stops. A stopped driver cannot simply drive off, so a stop does curtail freedom of action, yet the Court held that ordinary roadside questioning generally does not require warnings.²⁵ The reasons are structural. A traffic stop is presumptively temporary and brief, it typically occurs in public and in view of other motorists, and it is not police-dominated, and the motorist knows that he will soon be on his way.²⁶ Those are the features whose absence made station-house questioning coercive, since the warnings were designed to counter incommunicado questioning in a police-dominated atmosphere. A motorist standing beside the road in view of passing traffic, expecting a citation or a warning and then departure, does not face that isolation or open-ended duration. The reasoning matches the second step of the custody test taught above, which asks whether the environment presents the coercive pressures of the station house, and an ordinary stop usually does not.

The word ordinarily matters, because a stop that begins as routine can become custodial. That happens when the driver is arrested or is treated as under arrest, so that the restraint reaches the degree associated with a formal arrest, and the Court said the doctrine must be applied to the facts of each case.²⁷ The facts of Berkemer mark the line. McCarty's roadside answers about drinking came before the formal arrest, so they were given during an ordinary stop and could come in without warnings, while the questioning at the jail followed the arrest, was still unwarned, and could not.²⁸ Williams's silent conclusion that McCarty could not leave did not move the line earlier, because the custody test is objective and an officer's undisclosed conclusion does not by itself make a stop custodial.

Both errors are easy to make under time pressure. Students lose this issue when they remember only one half of Berkemer, either excusing warnings because the offense is minor or presuming custody because the driver was pulled over. The first error forgets that seriousness never decides whether Miranda applies, and the second forgets that custody, not the label of a traffic stop, is the trigger.

Questioning Prison Inmates

Prison inmates present the custody test with an apparent puzzle. A person serving a sentence has already lost the freedom to walk out of the building, so anyone who equates custody with confinement would conclude that every officer interview of a prisoner requires warnings. The Court rejected that equation in Howes v. Fields, which applied the two-step inquiry from the previous section to a prisoner questioned about conduct unrelated to his sentence and confirmed that incarceration alone does not automatically create Miranda custody.³¹ The warnings exist to counter the pressure of incommunicado questioning in a police-dominated atmosphere.³² An inmate confined for unrelated reasons may or may not face that pressure in a particular interview, so the inquiry examines the interview itself, because the inmate's status as a prisoner says nothing about how that session is conducted.

The facts of Howes show what an ordinary inmate interview looks like. Randall Fields was serving a sentence in a Michigan jail when a corrections officer escorted him down a floor and through a locked door to a conference room, where two sheriff's deputies questioned him about sexual conduct with a 12-year-old boy that allegedly occurred before he came to prison.³³ The questioning began in the evening and ran for between five and seven hours.³⁴ The deputies told Fields at the start, and again later, that he was free to leave and return to his cell. They were armed, but he was not handcuffed or otherwise restrained, and the conference room door was sometimes open and sometimes shut.³⁵ Partway through, Fields became agitated and began to yell, and he eventually confessed, never having been given Miranda warnings.³⁶

The Sixth Circuit, on Fields's federal habeas petition (a request that a federal court set aside a state conviction as unconstitutional), held that Supreme Court precedent clearly establishes that a prisoner is in Miranda custody whenever the prisoner is taken aside and questioned about events that occurred outside the prison walls.³⁷ The Supreme Court reversed, concluding that its decisions do not clearly establish that rule and that the rule is also a wrong reading of its Miranda cases.³⁸ The rule had three ingredients: imprisonment, questioning in private, and questioning about events in the outside world, and the Court held that those three elements are not necessarily enough to create a custodial situation.³⁹ Each ingredient describes the inmate or the subject matter of the questions rather than the pressure of the questioning. Imprisonment is a condition the inmate lives under whether or not any officer asks a question, a private room says nothing about whether the inmate may leave it, and the topic of the questions does not change how a reasonable person would respond to them. A rule built on those facts would make most officer interviews of inmates custodial, which would turn Miranda into a general rule for prisons instead of a response to coercive interrogation.

The first step of the test has to be read with the prison setting in mind. It asks whether a reasonable person in the objective circumstances would have felt free to terminate the interrogation and leave.⁴⁰ No inmate is free to leave the facility, so for an inmate leaving can only mean ending the interview and returning to the ordinary routine. If the question were whether the inmate could walk out of the prison, the answer would be no for every inmate, and the first step would be satisfied automatically without any attention to the interview. Reading the step as a question about the interview preserves its function as a filter. In Howes the officers' repeated statement that Fields could end the questioning and go back to his cell carried great weight, and Justice Ginsburg, who would have found custody, described the majority's judgment as resting critically on that undisputed fact.⁴¹

The same record supported a different reading in Justice Ginsburg's opinion concurring in part and dissenting in part. She agreed that the law was not clearly established for habeas purposes but would have held, had the case come up on direct review, that Fields was in custody.⁴² She pointed to facts that the majority weighed differently: Fields did not invite the interview, he was taken from his cell in the evening and questioned by two armed deputies long into the night, he was not told he could decline to speak, and more than once he told the officers he did not want to talk anymore.⁴³ The disagreement is one of weight. The majority treated the assurance that Fields could return to his cell as decisive, while Justice Ginsburg regarded that assurance as no substitute for making sure an individual knows his rights.⁴⁴ Fields's own belief that the deputies would not have let him leave is also the kind of private perception that the objective standard does not treat as controlling, which is why the opinion had to argue that his belief was well founded. The majority's approach is the law, and the opinion concurring in part and dissenting in part is useful as a list of the facts that push toward the pressures of the second step: length, hour, armed officers, and the absence of any assurance that the interview may end.

A jail cell does not supply the coercive interplay that Miranda addresses either. In Illinois v. Perkins an undercover agent was placed in the cell of an inmate held on an unrelated charge, the inmate made statements about a murder, and the Court held that Miranda warnings are not required when the suspect is unaware that he is speaking to a law enforcement officer and gives a voluntary statement.⁴⁵ The reasoning rests on the premise that the danger of coercion comes from the interaction of custody and official interrogation, so an inmate who believes he is talking to a fellow prisoner faces no police-dominated atmosphere even though he is in custody in a technical sense.⁴⁶ Perkins therefore confirms from another direction that confinement alone is not the trigger. This chapter returns to it when it contrasts the Miranda counsel rule with the offense-specific Sixth Amendment right.

The two poles can be shown with invented facts that differ only in what the officers do.

Students lose this issue when they ask whether the inmate could leave the facility, a question that always draws the answer no and therefore decides nothing. The test measures the interview: whether a reasonable person could have ended it and returned to the ordinary routine, and, if not, whether the setting carries station-house pressure. Custody is also only one trigger. Even an inmate who is in custody under this test is entitled to warnings only when officers interrogate, and the next section takes up what counts as interrogation.