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Judge McConnell on When a Suspect Is Seized:
In a decision handed down last week, United States v. Thompson, Judge Michael McConnell of the Tenth Circuit had an apt observation about the Supreme Court test for when a person is "seized" for Fourth Amendment purposes:
  According to formal legal doctrine, an encounter between an individual and the police is consensual when "a reasonable person would feel free 'to disregard the police and go about his business.'" Florida v. Bostick, 501 U.S. 429, 434 (1991) (quoting California v. Hodari D., 499 U.S. 621, 628 (1991). In addressing this question, however, we must be guided by the Court's decisions in similar cases rather than our own experience regarding how reasonable people actually respond to police investigations.[Fn1]

  [FN1: It might bring greater clarity to this area of the law if the test were framed in terms of whether the officer's behavior is coercive rather than whether, under the circumstances, the reasonable person would feel "free to disregard the police," which we suspect is unrealistic.]
  I think Judge McConnell is basically right here. The Supreme Court's stated test is artificial: the Justices have a sense of the kind of circumstances that they want to be regulated by the Fourth Amendment, and they haven't done a very good job of articulating that sense through a legal standard. The Court ended up adopting the "reasonable person would feel free to leave" test because it does cover a number of useful cases: If the police order someone to stay, then they have exerted control over the situation and that should be regulated, while if the police haven't made a showing of force, then that is something that the Fourth Amendment should sensibly not regulate. But the "reasonable person" formulation ends up being artificial, as Judge McConnell suggests, because (as you might guess) most people just don't feel free to walk away from a police officer.

   The Supreme Court has tried to address this problem a bit by clarifying that the standard is of a reasonable innocent person, apparently on the theory that a reasonable innocent person has no reason to fear the police. But again, that's unrealistic: most people don't feel free to walk away even if they feel they're totally innocent. I end up advising my students along the lines of what Judge McConnell suggests: Apply the test based on analogy to decided cases applying it rather than by relying on the natural meaning of its words.

  But even then, judges — and Justices — sometimes split on this. An interesting example of the split is Yarborough v. Alvarado, 541 U.S. 652 (2004), an AEDPA case where the Supreme Court divided on whether a state court had reasonably applied the law to whether the suspect was in custody for Miranda purposes (an inquiry that is very similar to when a person is seized for Fourth Amendment purposes). The majority, in an opinion by Justice Kennedy, applied the test by analogy to the facts of decided cases: From that perspective, the state court's application of the law was reasonable. The dissent, in an opinion by Justice Breyer, applied the test by relying on its formal terms: From that perspective, the state court's application of the law was unreasonable. Whether the state court application of the law was reasonable depended on whether you interpreted the doctrine by analogy to case-by-case application or as the formal test, and the Court split 5-4 on that.

  Thanks to FourthAmendment.com for the link.
Nunzio:
After reading all the Supreme Court and lower court cases, the standard is best interpreted as: Anything short of the police drawing their guns or physically restraining you means it's not a seizure.
11.20.2008 5:25pm
whit:

had reasonably applied the law to whether the suspect was in custody for Miranda purposes (an inquiry that is very similar to when a person is seized for Fourth Amendment purposes).


i realize that "very similar" is subjective, but based on how i parse "very similar" i'd say this statement is WAY off.

a mere seizure is not very similar to a "custodial arrest" (or its functional equivalent), which is what triggers miranda.

as an example, every traffic stop is a seizure (whether for a civil infraction like speeding, or investigation of a crime like DUI), but they are not custodial situations requiring miranda (usually).



After reading all the Supreme Court and lower court cases, the standard is best interpreted as: Anything short of the police drawing their guns or physically restraining you means it's not a seizure.



that's utter rubbish, clearly based on a bias.

if i tell somebody "stop and come over here" that's a seizure. if i put on my emergency lights to stop a car, that's a seizure. if i tell a person they are not free to leave, that's a seizure, etc. etc.

of course you obviously haven't read "ALL the supreme court and lower court cases", so yer just spoutin' rhetoric.
11.20.2008 5:57pm
Michael Kessler:
I've tried to strike up friendly conversations with the local DC police in Georgetown (I'm a non-descript white guy, by the way), and half the time, I end up feeling not free to leave until they've sufficiently dismissed me. So I always try to imagine the reasonableness standard in the context of when the police themselves would have approached and stopped me, suspicious that I might pull out a gun and therefore they have a hand on their revolver, firmly and tensely barking an order. I'm no hater of the police, but I agree with McConnell and think the current test is gravely deficient.
11.20.2008 5:58pm
whit:
also note that different state jurisdictions vary in whether a seizure happens when the suspect acqueiesces to the demand, or when it's made.

for example, in one jurisdiction, if a cop yells out stop and a guy takes off, the cops follows, sees the guy dump drugs, then catches up and arrests the guy, whether or not the cop had reasonable suspicion when he yelled stop is irrelevant since the suspect didn't actually stop, no seizure was made.

in my (and some other jurisdictions), the seizure occurs when the demand is made.

in some jurisdictions, merely spotlighting a person as you drive by is considered a seizure.
11.20.2008 6:09pm
zippypinhead:
Professor Kerr, granted that the articulated standard isn't particularly satisfying. But I think you made a rare slip when you suggested the tests for a Fourth Amendment seizure and custodial interrogation for Miranda purposes are "very similar."

Last time I checked, the police still don't have to Mirandize you before asking "do you know how fast you were going?" during a traffic stop, or before asking "why were you hiding in the bushes so late at night?" as they conduct a Terry stop/frisk. Your standard (or casual slip of the keyboard?) would lead to a rather different outcome when the government then attempts to admit any incriminating statements from those [clearly non-custodial] encounters, no?
11.20.2008 6:18pm
Cardozo'd (www):
I like the thinking of a making a formalistic standard, it just makes things easier.

I don't like how that standard is worded. The quote "to disregard the police and go about his business" seems strong to me, as you've pointed out, most people in the presence of police do feel some need to be permitted to go.

Perhaps the proper standards should be "when a reasonable person feels they would be permitted to go about their business by the police".

Good? Bad?
11.20.2008 6:20pm
PersonFromPorlock:
How about: an individual is seized if he is in a situation where, in that jurisdiction, another individual was charged with a crime for attempting to leave.
11.20.2008 6:44pm
SKardner (mail):
Coercion is a good test. The only problem is that public defenders will assert that everything is coercion in suppression hearings, and we will, depending on the zaniness of the judges, be back to square one.
11.20.2008 6:54pm
Oren:



if i tell somebody "stop and come over here" that's a seizure. if i put on my emergency lights to stop a car, that's a seizure. if i tell a person they are not free to leave, that's a seizure, etc. etc.

Unless you drive the wrong way down a one-lane one-way street, physically impeding the driver from progressing unless he wants to put his car in reverse and back out. That, apparently, is not a seizure in the first circuit*, probably because they exist in some sort of parallel reality.
11.20.2008 7:01pm
whit:
lol, oren

THAT case is ridiculous. that is clearly a seizure imo.
11.20.2008 7:04pm
Nunzio:

of course you obviously haven't read "ALL the supreme court and lower court cases", so yer just spoutin' rhetoric.

As the case Oren links to says:

"Throughout the brief encounter, until Ford's incriminating statement, the Officers did not draw their guns or touch Ford."
11.20.2008 7:25pm
pjh:
"P--- off, copper! I've got places to go and people to see."
11.20.2008 7:28pm
GWVM:
A Harvard Law student surveyed a bunch of Bostonians, asking them when they would feel free to leave during an encounter with the police. His empirical evidence conflicts with the Court's legal conclusions. Check it out.
11.20.2008 7:31pm
Mahan Atma (mail):
"Anything short of the police drawing their guns or physically restraining you means it's not a seizure."


It's worse than that, for judges who hate Miranda (which many do). I once externed for a federal judge who ruled that a guy in cuffs in the back of a cop car wasn't in custody.
11.20.2008 7:35pm
whit:

As the case Oren links to says:

"Throughout the brief encounter, until Ford's incriminating statement, the Officers did not draw their guns or touch Ford."


which of course doens't prove your point, and i can point to dozens of cases that support my point.

one bad case does not define the state of case law in regards to seizures in the US.

but you know that. yer just whinging and using unsubstantiated rhetoric.
11.20.2008 7:46pm
hattio1:

Coercion is a good test. The only problem is that public defenders District attorneys will assert that everything nothing is coercion in suppression hearings, and we will, depending on the zaniness of the judges, be back to square one.


SKardner,
My version is more accurate than yours in my experience. Like Mahan Atma, I've seen judges rule that someone who had numerous guns drawn on them, was hand cuffed and placed in the back of a police car, was not in custody, because don't you know the guns were then put away. That makes a person feel free to leave don't ya know.
11.20.2008 8:27pm
hattio1:
More in line with Professor Kerr's main point, shouldn't the question be whether the standard should be coercion or whether a reasonable person would feel free to leave. Let's face it, recently courts have been somewhat conservative on criminal issues. Maybe we should appoint judges who have a clue when a reasonable person would feel free to leave. I don't want my rights being whittled away because our judges are clueless. If the judges are clueless about when someone would feel free to leave, appoint judges who aren't clueless
11.20.2008 8:33pm
MJG:
Orin, good observation. And although the first comment was flippant, it does hit on something that Judge McConnell mentions which I do take some issue with (which, in turn, gets to the disagreement in Yarborough).

Judge McConnell's test -- whether the police conduct was coercive -- does seem to get at what a majority of the Court has been driving at over the last two decades. But it's not altogether clear to me that a "coercion" standard gets at what the text of the Fourth Amendment gets at ("reasonableness") or its meaning as an original matter (difficult question). My sense is that people are still seized when officers direct their attention towards someone who reasonably does not feel free to leave though the officer has not done anything outwardly "coercive." (Maybe a bad hypo, but say an officer stops someone by asking a question?)

I assume that McConnell would say that "coercion" includes a passenger in a stopped car, (See Brendlin), but "coercion" does seem to constitute a relatively high standard. Anyway, just some thoughts on that, though you highlight the tension here.
11.20.2008 8:34pm
whit:

My version is more accurate than yours in my experience. Like Mahan Atma, I've seen judges rule that someone who had numerous guns drawn on them, was hand cuffed and placed in the back of a police car, was not in custody, because don't you know the guns were then put away. That makes a person feel free to leave don't ya know.


stop conflating the issues.

no judge i am aware of would ever say that handcuffed and back of the car wasn't a SEIZURE (free to leave), some have said in some circumstances that it wasn't custody for the purposes of miranda.

refer to your last sentence.

just because a person is not free to leave/a reasonable person wouldn't believe so does not mean they are in custody (to the degree associated with formal arrest - miranda triggering).

it means they are SEIZED

these are two different thangs


fwiw, i like the coercion suggestions as a standard.

also note that whether a seizure is reasonable ... whether it exceeds a mere seizure and morphs into custody is dependant on two things 1) the actions of the officers 2) the actions of the suspect/type of crime being investigated

if a cop has RS to seize you for shoplifting, and 4 cops screech up, jump from their cars, pull their guns and prone you out, that will almost certainly be ruled a constructive arrest (and thus thrown out), since the cops only had RS not PC

otoh, if a cop has RS to seize you for armed robbery, the above acts would not constitute reason to throw the seizure out.
11.20.2008 9:15pm
Gilbert (mail):
I [heart] fourthamendment.com! Anyone taking criminal procedure, or planning to practice criminal law, should read it daily.
11.20.2008 11:14pm
OrinKerr:
Whit, Zippypinhyead,

The inquiry into whether a person was "seized" and whether they are in Miranda custody is indeed very similar. Consider the test for a seizure from McConnell's opinion:
According to formal legal doctrine, an encounter between an individual and the police is consensual when "a reasonable person would feel free 'to disregard the police and go about his business.'" Florida v. Bostick, 501 U.S. 429, 434 (1991) (quoting California v. Hodari D., 499 U.S. 621, 628 (1991).
And compare that to how Justice Breyer articulates the custody test in his Yarborough dissent:
In my view, Michael Alvarado clearly was "in custody" . . .. . To put the question in terms of federal law's well-established legal standards: Would a "reasonable person" in Alvarado's "position" have felt he was "at liberty to terminate the interrogation and leave"? Thompson v. Keohane, 516 U.S. 99, 112 (1995); Stansbury v. California 511 U.S. 318, 325 (1994) (per curiam)
What gets tricky is that in the seizure context, there are two different levels of seizure: Terry seizures for temporary seizures and full arrests (with full arrests being closer to the Miranda custody line). To be sure, you get to a Terry seizure long before you reach the Miranda custody situation. But that's a matter of how the tests are applied, not a matter of the formal articulation of the doctrine (which is very similar if not identical, depending on which case frames the test).
11.21.2008 12:07am
OrinKerr:
Oh, and for the holding that a Terry stop in the auto context is not Miranda custody, see Berkemer v. McCarty.
11.21.2008 12:10am
whit:
orin, the "inquiry' may be similar. the standard is not

there is quite a difference between custodial arrest (or functional equivalent) and mere seizure.

for pete's sake... EVERY traffic is stop is at least a mere seizure. the vast majority are not arrests.

it's like the difference between reasonable suspicion and probable cause. the "inquiry" is similar, but the standard is not "very similar"

stop defending the indefensible :)
11.21.2008 7:16am
hattio1:
Whit,
In my state you are in custody for Miranda purposes when a reasonable person wouldn't feel free to leave. What do you believe the standard for Miranda custody is? I'm curious how someone can be handcuffed, and kept in the back of a police car, but not in custody for Miranda purposes. If I were handcuffed in the back of a car, and not physically able to leave, you can bet I wouldn't feel free to leave.
11.21.2008 2:28pm
hattio1:
Whit,
In your opinion, what's the difference between the "inquiry" and the "standard"

As Professor Kerr explained, Terry Seizures (which if I remember right, traffic stops are) are a slightly different critter.
11.21.2008 2:33pm
whit:

In my state you are in custody for Miranda purposes when a reasonable person wouldn't feel free to leave.


*if* that's true, then pretty much EVERY seizure in your state requires miranda. i find that a bit hard to believe, frankly.

otoh, i used to work as a cop in a "focus" state where custody was irrelevant. if somebody was a "focus" of the investigation, miranda was required. that means if you called the suspect on the phone, and he wasn't even within 20 miles of you and sitting comfortably in his living room, it still required miranda.



What do you believe the standard for Miranda custody is?


it's not what i believe, it's what the law says. custodial arrest.


If I were handcuffed in the back of a car, and not physically able to leave, you can bet I wouldn't feel free to leave


nobody denies that.

again, a seizure is defined by not being free to leave. custodial arrest is more. try reading the case law.

fwiw, my (ever so liberal state) says that of course being handcuffed and.or in the back of the car is custodial FOR THE PURPOSES of miranda, but is not necessarily custodial for the purposes of search incident to arrest. iow, there are two different kinds of custodial arrest. if you want to search incident(which in WA state must generally occur not incident, but actually AFTER an arrest), and you don't make it pretty clear the arrest is custodial, they will throw it out. in one case an officer placed a guy in handcuffs, in the back of the car, told the guy he was under arrest, and told him if the officer didn't find anything during the search, he would let him go with a criminal cite. that was viewed as NONcustodial for the purposes of search incident, but of course would be custodial for the purposes of miranda.


In your opinion, what's the difference between the "inquiry" and the "standard"



i was being nice, basically in giving him the "inquiry" thang.

look, they are two different things. i have made probably thousands of seizures and hundreds of custodial arrests, and testified in various hearings regarding both kinds of seizures. they are NOT very similar.


As Professor Kerr explained, Terry Seizures (which if I remember right, traffic stops are) are a slightly different critter.



um, no. again, i am simply astounded that lawyers (you are one right) don't understand these distinctions. but actually, no... since many if not most lawyers don't DO criminal law.

most traffic stops are NOT terry stops. Terry v. Ohio refers to reasonable suspicion of a crime. most traffic stops are for civil infractions. they are NOT terry.

all traffic stops are SEIZURES. most are NOT terry seizures.

in a terry stop (of a car) , fwiw, i can detain everybody at the scene. in a traffic stop (in my state), i am not free to detain a passenger at the scene if he wants to leave and requests to do so.

in a terry stop, i can also use more expanisve questions w/o exceeding the scope of the stop, etc. etc.

this is const. law 101.

a seizure is ANY stop. you can even seize in some circumstances, people not even committing any crime or civil infaction. "freezing the scene", community caretaking function (taking suicidal people in for evaluation), seizing a witness at a "hot scene" is permissible in some circumstances until the scene is controlled, etc. etc.

there is a difference between a seizure/stop and a terry seizure.stop and a significant difference between a terry stop (RS) and a custodial arrest. amount of force used, length of detention, handcuffs yes/no, words used, etc. etc. can all be considered in distinguishing
11.21.2008 4:52pm
whit:
oh, another example. i can seize/stop a juvenile runaway. that is NOT a terry stop because being a runaway is not a crime.

again, all terry seizures/stops are seizures. not all seizures are terry.

and most seizures are not arrests (specifically custodidal arrests that would trigger miranda)
11.21.2008 4:55pm
hattio1:
Whit,
I am a criminal attorney and I know, and use all the time, the case law in my state. Let me ask you a question. Where are you getting your understanding of the law from?
Miranda doesn't talk about custodial arrest. It talks about custodial interrogation. If someone is in custody, they are in custody. Next the question turns to interrogation or not. If your state (Washington if I recall) is saying that there has to be both custody AND arrest, they are ripe for a Supreme Court challenge. Just because Washington follows a bastardized version of Miranda, doesn't mean they have it right.
Professor Kerr, if I recall, was a US District Attorney. Maybe he knows just a wee bit more than you about the case law???
11.21.2008 5:13pm
hattio1:
I like the fact that you were "being nice" to the Professor and throwing him a bone before you gave him your superior understanding of case law. You've asked for cases, how about you provide some?
11.21.2008 5:20pm
whit:

Where are you getting your understanding of the law from?
Miranda doesn't talk about custodial arrest. It talks about custodial interrogation.


i am getting my understanding of the law from case law (in the 3 states i have been a cop), as well as scores of long involved criminal cases I have testified in where issues of seizure vs. arrest and whether or not miranda is required have come up.

you are correct. it's a two prong test.

and here's a hint. the first trigger isn't met (in most states, and under the federal decision) UNLESS there is a custodial arrest.

a mere seizure doesn't cut it.

if i'm interrogating, but there is not custodial arrest, i need not mirandize. i've done dozens of interrogations that were non-custodial that obviously didn't require miranda, and when confessions were obtained - they held up for that reason

fwiw, in my state, we are required to advise of a right to an attorney even when there is NOT interrogation, but that's another issue.



If someone is in custody, they are in custody


and whether are not they are in custody - for the purposes of miranda questions is the issue so many people seem to conflate with merely being seized.

it is not the same thing, obviously.

most seizures are not custodial arrests.



Professor Kerr, if I recall, was a US District Attorney. Maybe he knows just a wee bit more than you about the case law???



ah, the fabled appeal to authority!

fwiw, prof. kerr seems to know his stuff pretty well. i have dealt with plenty of attorneys (prosecutors and defense and otherwise) who don't know their stuff.

WA is not a "bastardized" version of miranda. it actually follows the federal standards more closely than any other state i have studied. of course, any state can be more restrictive regarding miranda (or search or etc.) but not less restrictive.

miranda is a totality of the circumstances thang. you look at ALL the facts and circumstances, and then decide if a situation requires miranda.

WA is about par with the feds, only mildly more restrictive for LE.

but thanks for the tip.
11.21.2008 5:38pm
zippypinhead:
Professor Kerr, one of us is confused. Might be me, but this time it's probably not Whit. It is with great trepidation that I challenge a renowned criminal procedure expert (even though this is an area I once sort of knew something about) since I'll have to abandon this blog handle in disgrace if you prove me wrong, but here goes --

In your thread reply, you cite Berkemer for the proposition that the standards for a Fourth Amendment seizure of the person and custodial interrogation are basically the same. I'm surprised, because that case actually demonstrates quite nicely that the standard for a Fourth Amendment seizure and "custodial interrogation" for Miranda purposes are materially different.

Fourth Amendment seizures of a person occur when a reasonable person would not feel "free to leave" an encounter with the police. This includes investigatory Terry stops and traffic stops. See Delaware v. Prouse, 440 U.S. 648, 653 (1979) ("stopping an automobile and detaining its occupants constitute a 'seizure' within the meaning of [the Fourth] Amendment, even though the purpose of the stop is limited and the resulting detention quite brief."); Berkemer, 468 U.S. at 436-37.

It is clear, however, that investigatory questioning during a Terry stop or traffic stop is not subject to the Miranda rule, because even though the subject is not free to leave, he is not in "custody" for Miranda purposes. In Berkemer, the Court held that after the defendant had been arrested for DUI, subsequent questioning constituted custodial interrogation. However, the Court also made clear that the questioning during the initial roadside stop before the defendant was formally arrested, was noncustodial and could be admitted without Miranda warnings. 468 U.S. at 429, 441-42; see also Pennsylvania v. Bruder, 488 U.S. 9, 10 (1988).

Although there has been a lot of judicial bloviating on the question of when a person is in "custody" for Miranda purposes, "the ultimate inquiry is simply whether there was a formal arrest or restraint on freedom of movement of the degree associated with formal arrest." Stansbury v. California, 511 U.S. 318, 322 (1994) (quoting Beheler, 463 U.S. at 1125, and Mathiason, 429 U.S. at 495). That's a much more restrictive test than is used to determine when a Fourth Amendment seizure of the person has occurred.

I'm sure you knew all this back when you were a baby SAUSA working the Park Police traffic docket in Alexandria, but just forgot in all the years since then, right? I won't tell Nash Schott if you don't...
11.21.2008 5:41pm
whit:

the ultimate inquiry is simply whether there was a formal arrest or restraint on freedom of movement of the degree associated with formal arrest."


bingo.

it's the "associated with" (i also like to think "equivalent to") thing that confuses people.

like i said, it's a totality thang.

what would be a mere seizure if i was investigating an armed robbery (display of my gun, and pat frisk prior to terry questioning), might be an arrest if i pulled the same crap during a shoplifting terry.

the test for formal/custodial arrest *is* much more restrictive.

it's really that simple
11.21.2008 5:51pm
hattio1:
Here's what confuses me whit. Are you saying that custody is custody is custody, or are you saying that there's custody, and then there's custodial arrest. In other words, can I be in custody, but not in custodial arrest* in your opinion?





*Outside of the traffic stop scenario, which is it's own special critter.
11.21.2008 6:01pm
whit:

Here's what confuses me whit. Are you saying that custody is custody is custody, or are you saying that there's custody, and then there's custodial arrest. In other words, can I be in custody, but not in custodial arrest* in your opinion?



the problem is that people don't define terms.

custody CAN be used as a synonym for any seizure. but in the context of miranda, when we speak of CUSTODY, it means something more.

that's case law, not my opinion.

miranda is triggered when you want to question somebody who is in custody. in that case, when the law refers to custody it has defined it as consistent with a formal arrest to DISTINGUISH it from any mere seizure.

it's just a matter of defining what you are talking about.

it's just like the word arrest. arrest means, in some respects - any stop of a person. but clearly, that's NOT what we mean when we are using it in this context.

the case law is clear.

when i say custody and i am referring to MIRANDA, i am talking about a custodial arrest or the functional equivalent, which is the type of formal arrest (or equivalent) that will necessitate a miranda warning before I interrogate.

again, it's a totality test.

let me give you one kind of weird example.

i was questioning a suspect in a witness intimidation case. we were at his halfway house, which he was free to leave at any time. we were in an office, and i had just served him with a protection order and was questioning him about the allegations he had threatened to kill the witness.

was it custodial? the court ruled it was BECAUSE his DOC (parole) supervisor was present , which made the encounter sufficiently coercive/restrictive in the judges eyes to trigger miranda. w.o the DOC officer present, the judge made it clear miranda wouldn't have been required.

there was stipulation that i twas interrogation, the question was as to custody.

of course, i had mirandized the guy 3 days prior on a previous interrogation, so what he said was admissible, though.

that's a classic example of a totality thang. and it's an interesting counterexample, because he was NOT under formal arrest, and that was made clear to him. it was the coerciveness of the encounter (DOC sup. present - and they have broad admin powers over the parolee). just a counterexample, to show that sometimes, there's even more to consider than the whole arrest thang.
11.21.2008 6:11pm
hattio1:
whit,
You asked for a citation to case law in my jurisdiction. here it is. 590 p.2d 888, 895. There's my citation. Can I get something a little more specific from you than "i am getting my understanding of the law from case law (in the 3 states i have been a cop), "
11.21.2008 6:13pm
hattio1:
Whit,
You keep on saying it's the case law. How about a cite? Again, Miranda (as I recall) does not say anything about in custody which is equivalent to arrest. Miranda talks about when a person is in custody. Case law from the States that you have worked in may have added a "equivalent to arrest" to the definition of custody. But, as I said before, that's ripe for appeal to the US Supreme Court. And yes, I know, that states can't go below the "floor" of rights guaranteed by the US constitution....but that doesn't mean the issue has already been litigated as to whether or not adding "equivalent to arrest" is going below the floor. In my opinion...it clearly is. Obviously, the WA supreme court doesn't agree with me. But that doesn't mean they are right.
11.21.2008 6:19pm
whit:
sounds good to me, hattio.

alaska case law sounds kind a wacky, but any state has the right to be more restrictive than the federal standard.

tis a fair cop
11.21.2008 6:24pm
whit:
hattio,

zippy already quoted relevant case law above.


"the ultimate inquiry is simply whether there was a formal arrest or restraint on freedom of movement of the degree associated with formal arrest." Stansbury v. California, 511 U.S. 318, 322 (1994) (quoting Beheler, 463 U.S. at 1125, and Mathiason, 429 U.S. at 495).
11.21.2008 6:27pm
hattio1:
whit,
BTW, Miranda talked about being "taken into custody or otherwise deprived of his freedom of action in any significant way." That pretty much sounds to me like any plain Jane ordinary seizure. Too bad the US Supreme Court has watered that down.
11.21.2008 7:09pm
hattio1:
whit,
So, back to the example that originally spawned this question. Are you seriously contending that someone who is handcuffed and in the back of the police car, and who had guns drawn on them does not have a "restraint on freedom of movement of the degree associated with formal arrest?"
11.21.2008 7:12pm
zippypinhead:
Incidentally, just for the record, my questioning of Professor Kerr's statement that the standards for Fourth Amendment seizure and Miranda custody are very similar was especially reckless, since of course the good Professor was clerking for Justice Kennedy when the Yarborough case was handed down. And Kennedy (or perhaps one of his unnamed Clerks?) wrote the majority opinion. Then again, that case only dealt with the Miranda custody issue, and under a very limited AEDPA standard of review.

I just want full credit for voluntarily, knowingly and intelligently doing handstands on the high wire in a hurricane without a net... but I still think his statement equivalencing Fourth Amendment seizure of the person and custody for Miranda rule interrogation was a bit careless and legally inaccurate.

VTY,
The Late Zippy...
11.21.2008 7:18pm
whit:
hattio, i've read miranda too. and the wording "any significant way" is more than a mere seizure.

in some states, miranda has been so Overextended as to be ridiculous. like the "focus standard" where custody (of any sort) isn't even required.

regardless, the standard is what it is. custodial arrest or the equivalent, not merely a seizure



So, back to the example that originally spawned this question. Are you seriously contending that someone who is handcuffed and in the back of the police car, and who had guns drawn on them does not have a "restraint on freedom of movement of the degree associated with formal arrest?"



i believe i've already answered this, but if i haven't. yes, that is consistent with a formal arrest. again, one needs to look at all the facts and circumstances, but just based on the above- that is a functional equivalent of a custodial arrest.

a counterexample, would be where the above was done - like let's say on a felony stop of a stolen vehicle.

after the car was cleared, and the people were run for warrants, the passenger is unhandcuffed, let out of the police car, told they are not under arrest and then questioned. i would argue THAT would be noncustodial.

but GENERALLY SPEAKING (there are always exceptions) - handcuffs, guns and being placed in the back of a police car = custodial arrest.
11.21.2008 7:23pm
hattio1:
Beheler also quotes Miranda, that someone is in custody who has been derpived of their freedom of movement in any significant way. I understand where you (and, apparently the WA Supreme Court) get your standard from. But taking Miranda and the US Supreme Court at face value hardly makes Alaska case law "kinda wacky"
11.21.2008 7:33pm
zippypinhead:
hattio1: maybe Miranda was watered down over the years, maybe not. That determination is above my pay grade. But remember, Professor Kerr's Yarborough case held that a 17-year old minor who voluntarily came to the police station when requested to do so but was interrogated one-on-one by a detective in a small interrogation room for 2 hours was NOT in custody for Miranda purposes, and therefore his incriminating statements could be used against him. Possibly significant: at the end, the kid was indeed released, not charged.

Classic law school exam hypothedical: Sitting cuffed in the back of the police cruiser on the side of the road? Sitting in the interrogation room at headquarters for hours with Detective Whit? Fourth Amendment seizures? Custodial interrogations? Discuss... [but don't conflate the separate legal standards, or you get no better than a "C"].
11.21.2008 7:35pm
whit:
the issue, hattio is "significant way"

the current federal standard is that significant way = degree associated with a formal arrest.

that is the "loosest" so to speak miranda standard, as we both know many states restrict cops further.

the alaska case is a little different because the atmosphere was EXTREMELY coercive when the cop threatened the guy with arrest for murder, not to mention they were already IN the police station where ANY detention is gonna seem like a custodial arrest.

i get the standard from case law. i am telling that a mere seizure does not require miranda. feel free to check about 10 trillion cases in nearly every state (and federal) to see that this is true.

investigative detentions do not require miranda.

custodial arrests do, given interrogation of course
11.21.2008 7:38pm
hattio1:
Finally,
Having read Mathiason (The US Supreme Court case that your quote originally came from), I find it hard to believe that the Case Law is like you say it is. Mathiason says; "There is no indication that the questioning took place in a context where respondent's freedome to depart was restricted in any way."

Given that, it's hard to see Mathiason as a retreat from Miranda's rule that once you are deprived of your freedom of movement in any significant way, you are in custody. I understand your point that someone can be in custody but not in custody that is equivalent to custodial arrest, but the US Supreme Court case law does not seem to bear out your test...or inquiry...or standard...or whatever you want to call it.
11.21.2008 7:41pm
whit:

hattio1: maybe Miranda was watered down over the years, maybe not. That determination is above my pay grade. But remember, Professor Kerr's Yarborough case held that a 17-year old minor who voluntarily came to the police station when requested to do so but was interrogated one-on-one by a detective in a small interrogation room for 2 hours was NOT in custody for Miranda purposes, and therefore his incriminating statements could be used against him.


as it should be. i had an arson suspect i once did something similar with

1) he drove seperately to the police station from the scene, in his own car
2) i bought him mcdonald's (since we might be sittign there for a while, offering food and drink improves the environment. i had a double qtr lb'er with chees, large fries, and a diet coke (of course) myself
3) he sat by the open door. i sat on the other side of the table (so i was not between him and the door)
4) i clearly told him he was NOT under arrest and free to walk out at any time
5) i questioned him in a city hall conference room, not a police interrogation room

after quite some time (don't recall. may have been in the hours range), he confessed to multiple arsons. at that point, I mirandized him and took detailed taped statement.

also, fwiw, ime street cops TEND to "overmirandize". fearing that they don't KNOW the case law in and out, and the fear of fickle judges, they err generally on the side of mirandizing when not necessary vs. not mirandizing.
11.21.2008 7:43pm
hattio1:
Once again Whit,
Go back to the hypothetical you balked at. Is someone, who submitted to authority after having guns drawn on them, who was then handcuffed and put in the back of a police car, have they been deprived of their freedom of movement in any significant way? Are you seriously suggesting that? If so, your saying that unless the police tell the person they are under arrest, or possibly actually put them in a jail cell, they are not deprived of freedom in any significant way? Really?
11.21.2008 7:44pm
whit:

Having read Mathiason (The US Supreme Court case that your quote originally came from), I find it hard to believe that the Case Law is like you say it is


then clearly you need to read some more.

again, it does not say ANY way, it says any SIGNIFICANT way, and case after case has upheld NON-custodial interrogations where people were CLEARLY detained/seized but NOT to the degree associated with formal arrest iow in a "significant way".
11.21.2008 7:46pm
whit:

Go back to the hypothetical you balked at. Is someone, who submitted to authority after having guns drawn on them, who was then handcuffed and put in the back of a police car, have they been deprived of their freedom of movement in any significant way? Are you seriously suggesting that? If so, your saying that unless the police tell the person they are under arrest, or possibly actually put them in a jail cell, they are not deprived of freedom in any significant way? Really?



get real. i didn't "balk" at jacksquat. i said (iirc more than once) that the mentioned situation was equivalent to formal arrest. how many times do i have to say it for you to grok that?

here, i'll say it again!!!!!

IT'S A CUSTODIAL ARREST SITUATION FOR THE PURPOSES OF MIRANDA.

there. i said it. again. i didn't balk at anything.

seriously. friggin' amazing
11.21.2008 7:49pm
hattio1:
Whit,
You make it clear in that case that the person was free to leave....you even told him he was free to leave. The person handcuffed in the back of a police car....not so much free to leave. That's the proper standard.
11.21.2008 7:55pm
whit:
that's not the proper standard, nor the legally required standard.

under your standard, EVERY terry stop would require miranda before any questions were asked (specifically interrogation - iow questions that could elicit an incriminating response).

that's ridiculous.

so, every time a cop stops a suspected DUI, he has to mirandize before asking "had anything to drink tonight?" etc.

i believe the proper standard (given miranda existing at all) is the standard that exists now - equivalent to a formal arrest.

investigative detentions, field interviews, etc. groovy w/o miranda.

the person handcuffed in the back of a police car has been seized in a very significant way vs. yer garden variety terry. that's why in this case, i would argue it's custodial.
11.21.2008 8:00pm
hattio1:
Where did you previously say that Whit?????

You actually said;

no judge i am aware of would ever say that handcuffed and back of the car wasn't a SEIZURE (free to leave), some have said in some circumstances that it wasn't custody for the purposes of miranda.


Then you went on to say that;

just because a person is not free to leave/a reasonable person wouldn't believe so does not mean they are in custody (to the degree associated with formal arrest - miranda triggering).
11.21.2008 8:01pm
hattio1:
Whit,
Again, you say that the case law has clearly determined "deprived of your freedom in any significant way" to be deprived of your freedom in a way equivalent to arrest. Give us an example, a case cite. I cited from YOUR case, the case that it cited to, and the case that the quote originally came from. And all you've managed is Nope, that's not what the case law says.
11.21.2008 8:04pm
whit:

Where did you previously say that Whit?????



about 10 post back...

i quote:
i believe i've already answered this, but if i haven't. yes, that is consistent with a formal arrest. again, one needs to look at all the facts and circumstances, but just based on the above- that is a functional equivalent of a custodial arrest.

a counterexample, would be where the above was done - like let's say on a felony stop of a stolen vehicle.

after the car was cleared, and the people were run for warrants, the passenger is unhandcuffed, let out of the police car, told they are not under arrest and then questioned. i would argue THAT would be noncustodial.

but GENERALLY SPEAKING (there are always exceptions) - handcuffs, guns and being placed in the back of a police car = custodial arrest.
11.21.2008 8:13pm
whit:

Again, you say that the case law has clearly determined "deprived of your freedom in any significant way" to be deprived of your freedom in a way equivalent to arrest. Give us an example, a case cite. I cited from YOUR case, the case that it cited to, and the case that the quote originally came from. And all you've managed is Nope, that's not what the case law says.



dood. i don't have lexis-nexis (any more).how about US v Daubmann

"Miranda defined custodial interrogation as questioning "initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom in any significant way." In refining the Miranda test, the Supreme Court defined custody largely in Fourth Amendment terms, identifying the "ultimate inquiry" as whether the person interrogated was subjected to a "formal arrest or [a] restraint on [his or her] freedom of movement to the degree associated with a formal arrest." As within the Fourth Amendment context, the test is objective. "[T]he initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned." In short, if a "reasonable person in [the Daubmanns'] position would have believed that he [or she] was actually in police custody and [was] being constrained to a degree associated with formal arrest," then custody has been established for Miranda purposes."

i don't think you can get any more clear than that.
11.21.2008 8:19pm
whit:
more from daubmann... pretty much exactly what i have been saying the whole frigging thread. it's not rocket science. it's the law

It is not necessary for the police to effect a formal arrest for the questioning to be "custodial;" a defendant must be afforded the Miranda warnings if he has been physically taken into custody "or otherwise deprived of his freedom of action in any significant way." Id. Subsequent to Miranda, the Supreme Court identified the "ultimate inquiry" as whether the person interrogated was subjected to a "restraint on his freedom of movement to the degree associated with a formal arrest." Thompson v. Keohane, 516 U.S. 99, 112 (1995); see alsoUnited States v. Leshuk, 65 F.3d 1105, 1108 (4th Cir. 1995) (in the absence of a formal arrest, a suspect is in custody for Miranda purposes if his freedom of action is curtailed to a degree similar to a formal arrest).
Page 6
5The test is an objective one: "the initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned." Stansbury v. California, 511 U.S. 318, 323 (1994).1Courts consider the totality of the circumstances, and how a reasonable person would have understood the suspect's position at the time. United States v. Uzenski, 434 F.3d 690, 704 (4th Cir. 2006). Factors often considered include the extent to which the defendant is confronted with evidence of guilt, the physical surroundings in which the interrogation was conducted, the duration of the questioning, and the degree of pressure applied to detain the suspect. United States v. Kim, 292 F.3d 969, 974 (9th Cir. 2002).
11.21.2008 8:25pm
OrinKerr:
Whit,

You seem extremely confident here, calling your vision of the law "const law 101" and "not rocket science,"; you sugest it is "friggin amazing" that some people are disagreeing with you. But I actually disagree with some of what you say, or at least the categories and conclusions are not as simple or clear as you suggest. But you're raising some interesting issues, and I hope to blog about some of them next week.
11.22.2008 6:43pm
Oren:
Orin, that sounds fantastic. Can you address what the hell happened in United States v. Ford, 2008 U.S. App. LEXIS 23087 (1st Cir. November 5, 2008)? Did he just draw a particularly L&O panel?
11.23.2008 11:18am