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.

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