LEGAL QUESTIONS ANSWERED
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Question Title: "Miranda
after confession given during non-custody interview"
E-Newsletter
Edition: August 15, 2007
Always note that state law may be
more restrictive on police power than the U.S. Constitution.
I was working an indecency with a child case on a 79 year old man.
His grandaughter had made the allegations along with some pretty
specific details. After interviewing the victim and the outcry
witness (her mother) myself and the CPS investigator went to the
home of the suspect and asked him to come down to the Police department
and speak with us. He asked what it was about and I told him that
I would discuss it with him when he got down there.
His daughter brought him down here and
when I invited him in she tried to come in as well. I told her just
to have a seat and that we wouldn't be very long.
As soon as he entered my office I recorded the interview and told him numerous
times that he was free to leave and not under arrest. He ended up confessing
and I got a warrant and let him turn himself in 3 days later. This morning
was a dismissal hearing on the confession. The defense attorney cross
examined me
and verified that I did not read him his statutory warnings. I agreed and then
he went on to ask me if I had probable cause after he admitted that he had
done this. I told him yes and he asked me if I felt that he should
have been given
Miranda then. I said no because it was a non custodial interview. He asked
me if I had probable cause before I talked to him and I told him
yes for a warrant
but not a conviction and his argument is that since I had probable cause to
arrest him that he should have been given Miranda. My DA is saying
no, but the Judge
said that he needs to research this issue. I didn't think that it mattered
if you had PC or not, if they knew that they were not in custody
and free to go.
_____
The prosecuting attorney should provide the judge with a copy of Oregon v.
Mathiason, 429 U.S. 492 (1977) which talks about CUSTODY as it
relates to interviews in a police station and also should look
at Miranda v. Arizona, 384 U.S. 436 (1966) with a particular emphasis
on footnote 4.
The defense council in your case is focused
on language from the Escobedo case (pre- Miranda 1964) which indicated
that
once the interview
changed from inquisitorial to accusatorial, the accused had certain
rights- In footnote 4 of Miranda the court cleared up what they had
meant in Escobedo which is "custody."
You are correct Miranda
is only required when two things come together at the same time-
Custody and Interrogation- You, like the officer
in Mathiason, had non-custody, notwithstanding the fact that the
questioning occurred in a police station.
The right decision is
to allow the statement in - it is not even a close call based
on the facts as you have presented them. |
