Thursday, May 20, 1999 11:43 AM
I'm sorry to confuse you like this. Life was probably a lot simpler before I got here. Once again, if you question a suspect in custody, that's considered custodial interrogation. Custodial interrogation always requires that the Miranda Warning be given before any questioning. Non-custodial interrogation is when the suspect is not in custody and is free to leave at any time. In non-custodial interrogation there is no requirement to give the Miranda Warning. I've included a few examples of different arrest situations and how they apply to the custodial and non-custodial interrogations and the Miranda Warning...
1. A gang member, let's call him "Flaco", shoots and kills a rival gang member during a soccer game at a local park. Officer Drake, while patrolling in the area, witnesses the shooting and arrests Flaco for murder. Flaco is handcuffed and taken to detectives. Because Flaco's under arrest, I advise him of his rights per Miranda, and ask him if he wants to talk to me. Flaco spits on the floor and suggests I do something to myself that is anatomically impossible. Flaco is then taken to jail and booked for murder. During the booking he is photographed, fingerprinted, and "changed out" in jail garb.
2. As in the first example, Flaco shoots and kills a rival gang member during a soccer game at the park. He's arrested by Drake, handcuffed, and taken to detectives. I read him his rights and he agrees to talk with me. I do the custodial interrogation and he admits to the crime. At the conclusion of the interrogation Flaco is taken to jail and booked for murder.
3. Flaco shoots and kills a rival gang member during a soccer game at the park. This time, however, he gets away. His "homeys" aren't talking, and the police are having a hard time finding a witness. Finally, an anonymous caller tells us that the shooter is Flaco. That's not enough to make an arrest, but it's enough to go out and look for him. Flaco is located at a downtown mall and reluctantly agrees to come down to the station. Because Flaco is not under arrest, I do a non-custodial interview with no Miranda Warning. During the interview Flaco admits to the shooting and provides details of the murder that corroborate his admission. I place him under arrest and read him the Miranda Warning. Flaco agrees to talk with me further. We've now gone from a non-custodial interview, to an arrest, to a custodial interrogation. At the conclusion of the custodial interrogation Flaco is transported to jail and booked for murder.
4. Flaco shoots and kills a rival gang member during a soccer game at the park. He gets away and hides out at his house for the rest of the night. The next morning Flaco feels remorse and walks up to the desk Sgt. at the Police Department and turns himself in. The desk Sgt. calls me. I take Flaco back to one of our interview rooms and he tells me that he did the shooting at the park. Flaco is still not under arrest. I haven't Mirandized him yet because I need to make sure that he's not just some "crazy" off the street that wants to confess. Under the "threshold questioning" concept I'm allowed to ask him enough questions to determine the validity of his admission. Once I do that, I then advise Flaco that he is under arrest and not free to leave. If I want to continue further with the questioning, then it becomes a custodial interrogation and I have to read him his rights. Once the custodial interrogation is over, Flaco is taken to jail and booked for murder.
4. And finally, Flaco is sitting in jail on the murder charge. The crime lab calls to tell me that they test fired Flaco's gun and confirmed that it was the same gun that was used to kill two people in a drive-by shooting last month. I want to question Flaco about the other murders so I drive down to the jail and have him moved to a conference room. Flaco's still in custody so I have to read him his rights again before any questioning. Flaco, in an attempt to strike a deal, tells me that he got the gun from Sergio and that it was Sergio who killed the two people last month. And so we look for Sergio and the whole process begins again.
I hope this helps..Criminal law, especially concerning arrests, interrogation, and search and seizure, is confusing at best and in a constant state of change. Don't feel bad if you're still a little lost. Most cops are. I still call the D.A. when I'm not sure.
Joe D.
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