Chapter 42: Miranda: When Compulsory

[1] USSC:
Stansbury v. California (1994) 511 US 318, 322 ["An
officer's obligation to administer Miranda warnings
attaches only where there has been such a restriction on a
person's freedom as to render him 'in custody.'"];
Moran v. Burbine (1986) 475 US 412, 425 ["The purpose of
the Miranda warnings is to dissipate the compulsion
inherent in custodial interrogation," edited]. CAL:
P v. Mayfield (1997) 14 C4 668, 732 ["In applying
Miranda, one normally begins by asking whether custodial
interrogation has taken place."]; P v. Mickey (1991)
54 C3 612, 648 ["Absent 'custodial interrogation,'
Miranda simply does not come into play."]. OTHER:
US v. Guerrier (1C 2011) 669 F3 1, 5
["Everyone pretty much knows that the Miranda rule tells
police not to question a suspect in custody unless they first
advise him of his right to remain silent, among other things."].

[2] USSC: Berkemer v.
McCarty (1984) 468 US 420, 434 ["There can be no question
that respondent was 'in custody' at least as of the moment he was
formally placed under arrest"]; California v.
Beheler (1983) 463 US 1121, 1125 ["formal arrest" results
in "custody"]. CAL: P v. Leonard (2007) 40 C4
1370, 1401 ["defendant was in custody when the conversation with
his father occurred, because it came after his arrest"].

[3] USSC: Michigan v.
Mosley (1975) 423 US 96; Mathis v. US (1968) 391 US
1, 4-5 ["We find nothing in the Miranda opinion which calls
for a curtailment of the warnings to be given persons under
interrogation by officers based on the reason why the person is in
custody."]; Arizona v. Roberson (1988) 486 US 675, 684
["there is no reason to assume that a suspect's state of mind is
in any way investigation-specific"]. CAL: P
v. Warner (1988) 203 CA3 1122, 1130 ["the issue does
not revolve around the fact the second interview of defendant was
not for another separate crime"]; P v. Underwood (1986) 181
CA3 1223, 1231 ["it is immaterial that the questioning relates to
a crime other than the one which triggered the custody"];
P v. San Nicolas (2004) 34 C4 614, 632-33.
9th CIR: US v. Hsu (9C 1988) 852 F2 407, 410 ["an
identity of subject matter in the first and second interrogations
is not sufficient to render the second interrogation
unconstitutional"].

[4] USSC: Howes v. Fields (2012)
565 US 499, 508-509 ["As used in our Miranda case law,
'custody' is a term of art that specifies circumstances that are
thought generally to present a serious danger of coercion."];
California v. Beheler (1983) 463 US 1121, 1125 ["the
ultimate inquiry" is whether there has been a "restraint on
freedom of movement of the degree associated with a formal
arrest"]. CAL: P v. Pilster (2006) 138 CA4 1395,
1403, fn.1 [the issue "is not whether a reasonable person would
believe he was free to leave, but rather whether such a person
would believe he was in police custody of the degree associated
with formal arrest"]; P v. Brown (1972) 26 CA3 825, 848
["Even if we make the assumption that defendant felt that he was
not free to leave, we certainly would not be warranted in assuming
that he felt he was arrested." Edited]. OTHER:
US v. Newton (2C 2004) 369 F3 659, 672 ["a court must ask
whether, in addition to not feeling free to leave, a reasonable
person would have understood his freedom of action to have been
curtailed to a degree associated with formal arrest."].

[5] CAL: P v. Lopez (1985) 163
CA3 602, 607 ["a contrast is drawn between the relatively
noncompulsive atmosphere of an ordinary temporary detention and
the inherently compulsive atmosphere of an actual arrest"].
OTHER: US v. Luna-Encinas (11C 2010) 603 F3
876, 881 [assuming the suspect was seized, "we are convinced that
a reasonable person in his position would not have understood his
freedom of action to have been curtailed to a degree associated
with formal arrest"]; US v. Newton (2C 2004) 369 F3
659, 672 ["not every seizure constitutes custody for purposes of
Miranda"]; US v. Revels (10C 2007) 510 F3
1269, 1273 [the two inquiries are "analytically distinct"].
ALSO SEE: Florida v. Bostick (1991) 501 US 429,
435-36 [Court notes that, in applying Miranda, it is error
to apply the Fourth Amendment's "free to leave" standard].

[6] CAL: P v. Pilster (2006) 138
CA4 1395, 1403, fn.1 [the issue "is not whether a reasonable
person would believe he was free to leave, but rather whether such
a person would believe he was in police custody of the degree
associated with formal arrest"]. OTHER:
US v. Coulter (5C 2022) 41 F4 451, 458 ["When a court
assesses whether a suspect is in custody as contemplated by
Miranda, the requisite restraint on freedom is greater than
that required in the Fourth Amendment seizure context."].

[7] QUOTE FROM:
US v. Leggette (4C 2023) 57 F4 406, 410.

[8] CAL: In re Bonnie H. (1997)
56 CA4 563, 583 ["Once released, the suspect is no longer under
the inherently compelling pressures of continuous custody where
there is a reasonable possibility of wearing the suspect down by
badgering police tactics."].

[9] USSC:
Yarborough v. Alvarado (2004) 541 US 652, 662 ["custody
must be determined based on how a reasonable person in the
suspect's position would perceive his circumstances"];
Berkemer v. McCarty (1984) 468 US 420, 442 ["the only
relevant inquiry is how a reasonable man in the suspect's position
would have understood his situation"]. CAL:
P v. Stansbury (1995) 9 C4 824, 830 [issue is "whether a
reasonable person in the defendant's position would have felt he
or she was in custody"]; P v. Pilster (2006) 138 CA4 1395,
1403 ["Custody determinations are resolved by an objective
standard: Would a reasonable person interpret the restraints used
by the police as tantamount to a formal arrest?"];
P v. Taylor (1986) 178 CA3 217, 228 ["the phrase 'in
custody,' as used in the context of Miranda, is not
synonymous with 'custodial arrest' but is rather a term of art
that describes when a citizen has been subject to sufficient
restraint by the police to require the giving of
Miranda warnings"]. OTHER: US v. Leal (7C
2021) 1 F4 545 [excellent discussion of this issue].

[10] USSC:
J.D.B. v. North Carolina (2011) 564 US 261, 271["The test
[for 'custody'] involves no consideration of the actual mindset of
the particular suspect subjected to police questioning."];
Stansbury v. California (1994) 511 US 318, 323 [custody
"depends on the objective circumstances of the interrogation, not
on the subjective views harbored by either the interrogating
officers or the person being interrogated"].

[11] USSC:
Berkemer v. McCarty (1984) 468 US 420, 426, fn.22 [although
the officer determined that the suspect would be arrested, he
"never communicated his intention to [the suspect]."] CAL:
P v. Valdivia (1986) 180 CA3 657, 661 [Miranda
does not apply merely because officers have probable cause to
arrest the suspect]; P v. Robertson (1982) 33 C3 21, 38
["even assuming that the police had probable cause to arrest
defendant before he admitted that the car was his, the police were
not required to give Miranda warnings before asking the
single question under the noncoercive circumstances present
here"]. OTHER: US v. Hughes (1C 2011) 640 F3 428,
435 ["the interrogating officer's intent, not communicated to the
individual being questioned, is irrelevant to the inquiry."].

[12] USSC:
Stansbury v. California (1994) 511 US 318, 323 [custody
"depends on the objective circumstances of the interrogation, not
on the subjective views harbored by either the interrogating
officers or the person being interrogated"].

[13] QUOTE FROM:
J.D.B. v. North Carolina (2011) 564 US 261, 271.
USSC: Yarborough v. Alvarado (2004) 541 U.S. 652,
668-69 ["We do not ask police officers to consider these
contingent psychological factors [prior experiences with police]
when deciding when suspects should be advised of their
Miranda rights. The inquiry turns too much on the suspect's
subjective state of mind and not enough on the "objective
circumstances of the interrogation."]. CAL:
In re I.F. (2018) 20 CA5 735, 767 [suspect not in custody
merely because "he believed, based on prior contacts with law
enforcement, that 'any time you're told to do something by the
cops, it's an order"]; P v. Leonard (2007) 40 C4 1370, 1400
["Whether a person is in custody is an objective test"].
OTHER: US v. Salvo (6C 1998) 133 F3 943, 952 ["To
the extent the law enforcement officer's information and beliefs
remained unarticulated throughout the interview, they have no
bearing on the question of whether the suspect was in custody."];
US v. Hughes (1C 2011) 640 F3 428, 435 ["the interrogating
officer's intent, not communicated to the individual being
questioned, is irrelevant to the inquiry."].

[14] USSC:
Florida v. Royer (1983) 460 US 491, 519, fn.4 ["the
potential intrusiveness of the officers' conduct must be judged
from the viewpoint of an innocent person in Royer's position"];
Florida v. Bostick (1991) 501 US 429, 437 ["the 'reasonable
person' test presupposes an innocent person";
US v. Drayton (2002) 536 US 194, 202 ["The reasonable
person test is objective and presupposes an innocent person."].
9th CIR: US v. Booth (9C 1981) 669 F2 1231, 1235
["the court must determine whether a reasonable innocent person in
such circumstances" would have believed he was in custody].
OTHER: US v. Coulter (5C 2022) 41 F4 451, 458 ["The
reasonable person through whom [the Supreme Court] views the
situation must be neutral to the environment and to the purposes
of the investigation—that is, neither guilty of criminal conduct
and thus overly apprehensive nor insensitive to the seriousness of
the circumstances."]; US v. Luna-Encinas (11C 2010) 603 F3
876, 881, fn.1 ["the reasonable person from whose perspective
'custody' is defined is a reasonable innocent person"];
US v. Panak (6C 2009) 552 F3 462, 469 ["we undertake the
custody analysis from the perspective of a reasonable person
innocent of any crime"]; US v. Jones (10C 2008) 523 F3
1235, 1239 ["a reasonable person does not have a guilty state of
mind"].

[15] USSC:
Yarborough v. Alvarado (2004) 541 US 652, 668 [suspect's
previous experience with police and any other "contingent
psychological factors" are irrelevant in determining how the
circumstances would have appeared to a reasonable person].
BUT ALSO SEE: P v. Leonard (2007) 40 C4 1370, 1400
["Neither this court nor the United States Supreme Court has
decided whether these [psychological] factors should be considered
in deciding whether a suspect is in custody"].

[16] CAL: In re I.F. (2018) 20
CA5 735, 767.

[17] USSC:
Stansbury v. California (1994) 511 US 318, 325 ["Even a
clear statement from an officer that the person under
interrogation is a prime suspect is not, in itself, dispositive of
the custody issue, for some suspects are free to come and go."];
Minnesota v. Murphy (1984) 465 US 420, 431 ["The mere fact
that an investigation has focused on a suspect does not trigger
the need for Miranda warnings in noncustodial settings."];
Beckwith v. US (1976) 425 US 341, 346-47 [the sole concern
of Miranda is "the compulsive aspect of custodial
interrogation, and not the strength or content of the government's
suspicions at the time the questioning was conducted."];
Berkemer v. McCarty (1984) 468 US 420, 436, fn.22 ["The
threat to a citizen's Fifth Amendment rights that
Miranda was designed to neutralize has little to do with
the strength of an interrogating officer's suspicions."];
Oregon v. Mathiason (1977) 429 US 492, 495 ["Nor is the
requirement of warnings to be imposed simply because the
questioned person is one whom the police suspect," edited.].
CAL: P v. Carpenter (1997) 15 C4 312, 384 [the
officers' undisclosed suspicions "do not establish custody"];
In re Kenneth S. (2005) 133 CA4 54, 65 ["The fact that
Detective Carranza told respondent that he had information that
respondent was involved in the robbery was insufficient by itself
to constitute custody and to countervail these other factors."];
P v. Moore (2011) 51 C4 386, 402 ["police expressions of
suspicion, with no other evidence of a restraint on the person's
freedom of movement, are not necessarily sufficient to convert
voluntary presence at an interview into custody"];
P v. Roquemore (2005) 131 CA4 11, 27 ["the uncommunicated
subjective opinion of an officer as to whether an individual being
questioned is a suspect is irrelevant"]. 9th CIR:
US v. Kilgroe (9C 1992) 959 F2 802, 805 ["The internal
knowledge of a government agent that a witness may have been
involved in criminal activity generates no external coercion on
the witness."]; Bains v. Cambra (9C 2000) 204 F3 964, 973
[suspect was not in custody merely because officers "had lied to
him about whether [a suspected accomplice] made incriminating
statements about him"]. ALSO SEE:
Oregon v. Mathiason (1977) 429 US 492, 495-96 [after noting
that an officer falsely told a burglary suspect that his
fingerprints had been found at the scene, the Court said,
"Whatever relevance this fact may have to other issues in this
case, it has nothing to do with whether respondent was in custody
for purposes of the Miranda rule"].

[18] USSC:
J.D.B. v. North Carolina (2011) 564 US 261, 277 ["so long
as the child's age was known to the officer at the time of police
questioning, or would have been objectively apparent to a
reasonable officer, its inclusion in the custody analysis is
consistent with the objective nature of that test."].

[19] 9th Cir: US v. Kim (9C
2002) 292 F3 969, 977 ["the coercive impact of enforced isolation
is particularly strong where the defendant may have had some
difficulty in understanding English"]. OTHER:
US v. Burden (DCC 2019) 934 F3 675, 695 ["Under some
circumstances, English language capabilities might have an
objectively discernible relationship to a reasonable person's
understanding of his freedom"].

[20] USSC: Yarborough v.
Alvarado (2004) 541 US 652, 664 ["Instead of
pressuring Alvarado with the threat of arrest and prosecution, she
appealed to his interest in telling the truth and being helpful to
a police officer."]. CAL: P v. Potter (2021) 66 CA5
528, 542 ["nothing confrontational"]; In re I.F. (2018) 20
CA5 735, 770 ["Although some of the questions may have caused a
reasonable child to experience momentary embarrassment, they would
have not caused such a child to experience a restraint on freedom
tantamount to a formal arrest"]; P v. Kopatz (2015) 51 C4
62, 81 ["the interview itself was investigatory, lasted less than
an hour, was not hostile, menacing, or accusatory, and occurred in
an unlocked room."]; P v. Moore (2011) 51 C4 386,
396 ["the questions focused on information defendant had indicated
he possessed rather than on defendant's potential responsibility
for the crimes"]; P v. Linton (2013) 56 C4 1146, 1167
[questioning inside suspect's home was not "aggressive or
particularly confrontational"]; P v. Pilster (2006)
138 CA4 1395, 1404 [the officer "conducted his inquiry in a
conversational tone, and there is no evidence he posed
confrontational questions or pressured the defendant in any
manner"]. 9th CIR: Dyer v. Hornbeck (9C 2013) 706 F3
1134, 1141 ["The transcript also reveals lengthy portions of the
interrogation that took a purely investigatory tone, in addition
to repeated confirmations that detectives had not made threats or
promises to Dyer."]; US v. Redlightning (9C
2010) 624 F3 1090, 1105 ["The agents did not use heavy-handed
tactics to confuse, disorientate, or intimidate Redlightning, and
the overall pressure applied did not rise to a level where a
reasonable person would have felt prohibited from leaving."];
US v. Bassignani (9C 2009) 575 F3 879, 884 ["the
interview "was conducted in an open, friendly, tone"];
US v. Norris (9C 2005) 428 F3 907, 913 [the officers
"did not attempt to challenge Norris's statements with other known
facts suggesting his guilt, they merely asked Norris about the
allegations"]. OTHER: US v. Ambrose (7C 2012) 668 F3
943, 958 [the tenor of the conversation was "businesslike," with
one agent "presenting the evidence of Ambrose's involvement rather
than questioning Ambrose"]; US v. Arellano-Banuelos (5C
2019) 927 F3 355, 361 [the officer "did not raise his voice during
the interview [in prison], use a sharp tone of voice, or use
profanity"]; US v. Sanchez (8C 2012) 676 F3 627, 631
[the officer "did not use strong-arm tactics or deceptive
stratagems during the interview; his raised voice and his
assertions that Sanchez was lying were not coercive interview
methods"].

[21] CAL: P v. Saldana (2018) 19
CA5 432, 457 ["the detective asked an unrelenting number of
accusatory questions"]; P v. Aguilera (1996) 51 CA4
1151, 1164-65 [the interrogation "was intense, persistent,
aggressive, confrontational, accusatory, and, at times,
threatening and intimidating"]; P v. Celaya (1987) 191 CA3
665, 672 ["accusatory type questions"]. 9th CIR:
US v IMM (9C 2014) 747 F3 754, 747 [the officer "repeatedly
confronted IMM with fabricated evidence of guilt and engaged in
elaborate deceptions. The detective fed IMM facts that fit the
detective's predetermined account of what must have happened,
accused IMM of dishonesty whenever IMM disagreed with the
detective's false representations, and forced IMM to choose
between adopting the detective's false account of events as his
own and calling his own grandfather a liar."];
US v. Bassignani (9C 2009) 575 F3 879, 884 ["We have found
a defendant in custody when the interrogator adopts an aggressive,
coercive, and deceptive tone."]. COMPARE:
Stanley v. Schriro (9C 2010) 598 F3 612, 619 [although
accusatory, other circumstances rendered the interview
noncustodial].

[22] CAL: P v. Potter (2021) 66
CA5 528, 541 [not "particularly intense or confrontational"].

[23] OTHER: US v. Guillen (10C
2021) 995 F3 1095, 1110 ["The accusatory nature of such
questioning supports a conclusion that Ethan was in custody when
he first confessed."].

[24] CAL: P v. Saldana (2018) 19
CA5 432, 458 [if "police indicate to the defendant their resolute
belief he committed the crime, the custody inquiry becomes whether
a reasonable person in the defendant's position—having been told
by the police that they know he committed the crime—would think he
was free to break off the interview and leave"];
P v. Aguilera (1996) 51 CA4 1151, 1164 [the officers
"repeatedly told him they had evidence to prove his involvement"].
OTHER: US v. Revels
(10C 2007) 510 F3 1269, 1276 [officers "confronted her with a bag
of cocaine that had been seized during the search"];
Tankleff v. Senkowski (2C 1998) 135 F3 235,
244 [officers told the suspect the victim "had woken up from a
coma and accused him of the attack"]; US v.
Rambo (10C 2004) 365 F3 906, 909 ["Not one hundred percent
of it is falling down on your shoulders. But a lot of it's gonna
be."]. COMPARE: P v. Stansbury (1995) 9 C4 824, 832
["These questions were nonaccusatory, and defendant was largely
permitted to recount his observations and actions through
narrative."].

[25] USSC: California v.
Beheler (1983) 463 US 1121, 1122 ["less than 30 minutes"];
Oregon v. Mathiason (1977) 429 US 492, 495-96
[30 minutes]; Yarborough v. Alvarado
(2004) 541 US 652, 665 [two hours]. CAL: Green
v. Superior Court (1985) 40 C3 126, 135 [two hours];
In re Joseph R. (1998) 65 CA4 954, 961 ["only about
15 or 20 minutes"]; P v. Spears (1991) 228 CA3 1, 26
[75 minutes]. OTHER: US v. Panak (6C 2009)
552 F3 462, 467 [interview between 45 minutes and one hour
"compares favorably with other encounters we have deemed
non-custodial"]; US v. Guerrier (1C 2011) 669 F3 1,
6 ["And the interview lasted a relatively short time too, roughly
20-25 minutes"]; US v. Muhlenbruch (8C 2011) 634 F3
987, 997 ["Muhlenbruch confessed a mere seven-and-a-half minutes
into his interview"].

[26] CAL: P v. Saldana (2018) 19
CA5 432, 459 ["The duration of Saldana's interrogation—less than
one hour—is less important than the character or quality of the
interrogation"]; P v. Moore (2011) 51 C4 396, 402
["the interview was fairly long—one hour and 45 minutes—but not,
as a whole, particularly intense or confrontational"].
9th CIR: US v. Bassignani (9C 2009) 575 F3
879, 886 [while a 2½-hour hour interrogation is "at the high end"
of situations which were deemed noncustodial, "this was not a
marathon session designed to force a confession, and we therefore
accord less weight to this factor."]. OTHER:
US v. Bleuler (5C 2023) __ F4 __ [2023 WL 1811921] ["This
Court has warned against overreliance upon the length of
questioning because doing so injects a measure of hindsight into
the analysis which it wishes to avoid."].

[27] CAL: P v.
Moore (2011) 51 C4 386, 402 [questioning remained
noncustodial "at least until defendant first asked to be taken
home and his request was not granted," edited].

[28] OTHER: US v. Zabel (6C
2022) 35 F4 493, 503 ["After being twice denied the ability to use
the restroom, it is entirely possible that a reasonable person in
Zabel's position may have felt temporarily restrained in their
freedom of movement."].

[29] USSC: Berkemer v.
McCarty (1984) 468 US 420, 438 ["The fact that the detained
motorist typically is confronted by only one or at most two
policemen further mutes his sense of vulnerability."];
Pennsylvania v. Bruder (1988) 488 US
9, 11 [a "single police officer"]. CAL: P v.
Bejasa (2012) 205 CA4 26, 36 ["Logically, the fewer the
number of officers surrounding a suspect the less likely the
suspect will be affected by custodial pressures."];
P v. Stansbury (1995) 9 C4 824, 833 [four officers did not
constitute a "show of force"]; P v. Pilster (2006) 138 CA4
1395, 1404 ["Lee was the only officer present during the
interview"]; In re Kenneth S. (2005) 133 CA4 54, 65
["Respondent spoke only with Detective Carranza, as there were no
other officers in the interrogation room"]; P v.
Lopez (1985) 163 CA3 602, 609 ["While there were four
officers present, they did not congregate around defendant"];
P v. Taylor (1986) 178 CA3 217, 229 [detainee was
surrounded by four officers]. 9th CIR:
US v. Craighead (9C 2008) 539 F3 1073, 1085 ["the presence
of a large number of visibly armed law enforcement officers goes a
long way towards making the suspect's home a police-dominated
atmosphere."]; US v. Galindo-Gallegos (9C
2001) 244 F3 728, 732 ["there were two border patrol officers and
15 or 20 suspects"]. OTHER: US v. Hughes (1C 2011)
640 F3 428, 437 ["The number of officers [on the premises] was
impressive but not overwhelming"]; US v. Ricker (8C 2020)
983 F3 987, 993 ["Although several officers were present to
execute the search warrant, only [two officers] had any meaningful
interaction with Ricker."]; US v. Schaffer (2C 2017) 851 F3
166, 175 [although nine HSI agents were in defendant's office, the
interview was conducted in a "separate part of the office"];
US v. Hughes (1C 2011) 640 F3 428, 436 ["only
two of [the officers] participated in the questioning; the others
remained apart"]; US v. Jones (10C 2008) 523
F3 1235, 1242 ["Jones did encounter multiple agents, but she was
not confronted by them simultaneously or aggressively"];
US v. Guerrier (1C 2011) 669 F3 1, 6 ["That one parole and
two law-enforcement officers were present during the questioning
does not tip the custody balance in Guerrier's favor"];
US v. Ambrose (7C 2012) 668 F3 943, 957 ["only Grant and
Fitzgerald were in the room with Ambrose"];
US v. Newton (2C 2004) 369 F3 659, 675 ["The number of
officers on the scene [six] would not, by itself, have led a
reasonable person in Newton's shoes to conclude that he was in
custody."].

[30] USSC:
Berkemer v. McCarty (1984) 468 US 420, 439-40
["comparatively nonthreatening"]. CAL: P v. Manis (1969) 268 CA2 653, 667 ["Temporary detention
only slightly resembles custody, 'as the mist resembles rain.'"]; P v. Tully
(2012) 54 C4 952, 983 ["While defendant was not free to leave
until the citation process was completed, he was under no
obligation to answer [the officer's] questions."]. 9th CIR:
US v. Booth (9C 1981) 669 F2 1231, 1237 ["even though one's
freedom of action may be inhibited to some degree during an
investigatory detention, Miranda warnings need not be given
prior to questioning"]. OTHER: US v. Coulter (5C
2022) 41 F4 451, 462 ["The Supreme Court holds that officers
generally need not issue Miranda warnings before
questioning motorists and passengers during a routine traffic
stop. Because a traffic stop is presumptively temporary and brief,
questioning incident to an ordinary traffic stop is quite
different from stationhouse interrogation, which frequently is
prolonged, and in which the detainee often is aware that
questioning will continue until he provides his interrogators the
answers they seek."].

[31] QUOTE FROM: Berkemer
v. McCarty (1984) 468 US 420, 440.

[32] QUOTE FROM: P v.
Manis (1969) 268 CA2 653, 669.

[33] USSC: Dunaway v.
New York (1979) 442 US 200, 215 [handcuffing is one of the
"trappings" of an arrest]. CAL: P v.
Pilster (2006) 138 CA4 1395, 1405 ["distinguishing
feature"]; P v. Taylor (1986) 178 CA3 217,
228 ["well-recognized circumstance"]; P v.
Herdan (1974) 42 CA3 300, 307, fn.11 [handcuffing "it is
more likely to be deemed custodial"]. OTHER: US
v. Newton (2C 2004) 369 F3 659, 675, 676 ["Handcuffs
are generally recognized as a hallmark of a formal arrest."].

[34] CAL: In re Joseph R. (1998)
65 CA4 954, 957 [the questions "were only put to Joseph after he
was released from the police car and the handcuffs were removed"];
P v. Pilster (2006) 138 CA4 1395, 1404 ["brief handcuffing
of a detainee would look less like a formal arrest if the
interviewing officer informed the detainee that handcuffs were
temporary and solely for safety purposes"];
P v. Bejasa (2012) 205 CA4 26, 36 ["The brief nature of his
restraint [i.e., handcuffing for 'only a matter of minutes'] tends
to show that defendant was merely detained, not in custody."].
9th CIR: US v. Cervantes-Flores (9C 2005) 421 F3
825, 830 ["His use of handcuffs was justified by Cervantes' flight
and [the officer's] safety concern"]; US v. Booth (9C 1981)
669 F2 1231, 1236 ["Handcuffing a suspect does not necessarily
dictate a finding of custody. Strong but reasonable measures to
insure the safety of the officers or the public can be taken
without necessarily compelling a finding that the suspect was in
custody."]. OTHER: US v. Newton (2C 2004) 369 F3
659, 675, 676 [disclosure of the reason for handcuffing "is a fact
that may be considered in assessing the extent to which a
reasonable person would understand any restraints on his freedom
to be comparable to those associated with a formal arrest"].

[35] OTHER: US v. Treanton (8C
2023) 57 F4 638, 641 ["Agents promptly released Treanton from
restraints as soon as concerns about officer safety were resolved,
and they informed him that he was not under arrest"];
US v. Coulter (5C 2022) 41 F4 451, 458 ["The factors
holistically evince the non-threatening, non-aggressive approach
of Officer Guzman, who, facing alone, on a dark street, a man who
admitted a prior conviction for aggravated robbery, reasonably
took precautions for officer safety. The precaution of
handcuffing, under these circumstances, did not restrain Coulter's
freedom of movement to the degree which the law associates with
formal arrest."].

[36] CAL: P v.
Taylor (1986) 178 CA3 217, 229 ["It goes without saying
that the display of a weapon by police officers plainly conveys to
a reasonable citizen the message that he is not free to leave."].

[37] CAL: P v.
Stansbury (1995) 9 C4 824, 832 ["there is no evidence that
defendant could see the guns"].

[38] CAL: P v.
Taylor (1986) 178 CA3 217, 230 ["Assuming the citizen is
subject to no other restraints, the officer's initial display of
his reholstered weapon does not require him to give
Miranda warnings before asking the citizen questions."];
In re Joseph R. (1998) 65 CA4 954, 960-61 ["Police officers
may sufficiently attenuate an initial display of force, used to
effect an investigative stop, so that no Miranda warnings
are required."]. OTHER: US v.
Luna-Encinas (11C 2010) 603 F3 876, 881 ["the weapons were
pointed downward in a protective posture and were holstered
shortly after the initial arrival"]; Cruz v.
Miller (2C 2001) 255 F3 77, 86 [the officers "reholstered
their guns as soon as they ascertained that the suspect was not
armed"].

[39] 9th CIR: US v.
Basher (9C 2011) 629 F3 1161, 1167 ["Police officers
routinely ask individuals to keep their hands in sight for officer
protection, and in this case the request does not appear to have
been made in a threatening manner."].

[40] OTHER: US v. Johnson (7C
2012) 680 F3 966, 975.

[41] CASE REFERENCED:
US v. Soderman (8C 2020) 983 F3 369, 377.

[42] CAL: P v. Bennett (1976) 58
CA3 230, 239 [court describes police station as a "cold and
normally hostile atmosphere"]; P v. Lopez (1985) 163 CA3
602, 605 ["Miranda presented the clearest example of
custody, namely the official isolation of a criminal suspect in a
police station"].

[43] QUOTE FROM:
US v. Newton (2C 2004) 369 F3 659, 672. CAL:
P v. Mazza (1985) 175 CA3 836, 841 ["While questioning at a
police station by a police officer may be viewed as presumptively
coercive, such interviews may not constitute custodial
interrogation where the objective indicia of restraint or
compulsion are lacking."]; P v. Spears (1991) 228 CA3 1, 25
["Although the taped interview did take place at the station
house, that factor has repeatedly been held, in and of itself, to
be insufficient to establish custodial interrogation."];
Green v. Superior Court (1985) 40 C3 126, 135 [the Supreme
Court has "rejected the idea that a 'coercive environment' is
itself sufficient to require Miranda warnings"].

[44] USSC: Yarborough v.
Alvarado (2004) 541 US 652, 664 ["The police did not
transport Alvarado to the station or require him to appear at a
particular time"]; California v.
Beheler (1983) 463 US 1121, 1122 ["Beheler voluntarily
agreed to accompany police to the station house"];
Bobby v. Dixon (2011) 565 US 23, 28 ["chance encounter" at
police station when suspect came in to retrieve his car which had
been impounded for a traffic violation]. CAL: P v.
Stansbury (1995) 9 C4 824, 831-32 ["A reasonable person who
is asked if he or she would come to the police station to answer
questions, and who is offered the choice of finding his or her own
transportation or accepting a ride from the police, would not feel
that he or she had been taken into custody."];
P v. Leonard (2007) 40 C4 1370, 1401 [suspect consented to
be driven to the sheriff's office]; P v. Holloway (2004) 33
C4 96, 120 [the officers "requested he come to the station for an
interview but did not demand that he accompany them"];
Green v. Superior Court (1985) 40 C3 126, 131
["[The officer] asked defendant to accompany him to his office for
an interview and said 'if at any time he needed to come back, we'd
drive him back, not to worry about a ride.'"]. 9th CIR:
US v. Bassignani (9C 2009) 575 F3 879, 884 ["Where
we have found an interrogation non-custodial, we have emphasized
that the defendant agreed to accompany officers to the police
station or to an interrogation room."]; US v.
Norris (9C 2005) 428 F3 907, 912 ["Norris voluntarily
accompanied the officers to the substation."]. OTHER:
US v. Ferguson (8C 2020) 970 F3 895, 901 ["Ferguson came
voluntarily to the Justice Center; that he was told his
participation in the polygraph examination was voluntary and that
he could end it at any time"].

[45] QUOTE FROM:
P v. Celaya (1987) 191 CA3 665, 672. USSC:
Miranda v. Arizona (1966) 384 US 436, 446 ["police
dominated"]; Blackburn v. Alabama (1960) 361 US 199, 204
["most of the interrogation took place in closely confined
quarters—a room about four by six or six by eight feet"];
Howes v. Fields (2012) 565 US 499, 511 [suspects who are
questioned in police stations are "cut off from the outside
world"]; CAL: P v. Bennett (1976) 58 CA3 230, 239
["cold and hostile" environment]; P v. Lopez (1985) 163 CA3
602, 605 ["Miranda presented the clearest example of
custody, namely the official isolation of a criminal suspect in a
police station."]; Green v. Superior Court (1985) 40 C3
126, 131 ["The [interview] rooms are 7 by 12 feet, have no windows
and require a key to enter or exit."]. 9th CIR:
Dyer v. Hornbeck (9C 2013) 706 F3 1134, 1140 ["Dyer was
interviewed in a nondescript, fifteen-by-fifteen foot room—small,
but not oppressively so—in what appears to have been a
public-facing area of the station house."].

[46] QUOTE FROM:
Culombe v. Connecticut (1961) 367 US 568, 579. USSC:
Oregon v. Mathiason (1977) 429 U.S. 492, 497 ["a
noncustodial situation is not converted to one in which
Miranda applies simply because [it] took place in a
coercive environment"]. CAL:
Green v. Superior Court (1985) 40 C3 126, 136
["Notwithstanding the lock on the interview room door, the
evidence does not compel the conclusion that defendant could not
have left whenever he had wanted during the interview."].

[47] CAL: P v.
Moore (2011) 51 C4 386, 398 [officers prevented the door
from closing and locking; In re Kenneth S. (2005) 133 CA4
54, 65 ["the door to the room was kept partially open during the
interview"]. 9th CIR: US v.
Redlightning (9C 2010) 624 F3 1090, 1104 ["There is no
showing that the door to the room in which Redlightning was
questioned was locked"]. COMPARE: In re I.F. (2018)
20 CA5 735, 773 ["he was locked out, and forced to knock several
times"].

[48] USSC:
Howes v. Fields (2012) 565 US 499, 515 [the suspect was
interviewed in a "well-lit, average-sized conference room"].
CAL: US v. Menzer (7C 1994) 29 F3 1223, 1232 ["the
room was well lit, there were two windows exposing the interview
room to [an office] area"]. CAL: P v. Fierro (1991)
1 C4 173, 217 ["the interview was conducted in a large, open
office rather than an interview room"]. 9th CIR:
Dyer v. Hornbeck (9C 2013) 706 F3 1134, 1140 ["a
nondescript, fifteen-by-fifteen foot room—small, but not
oppressively so—in what appears to have been a public-facing area
of the station house"]. OTHER: US v. Bleuler (5C
2023) __ F4 __ [2023 WL 1811921] ["When a defendant is interviewed
in a well-lit, averaged-sized conference room, where he was not
uncomfortable, the environment negates a finding that the
defendant is in custody."]; US v. Ambrose (7C 2012) 668 F3
943, 957 ["a spacious conference room"]; US v. Budd (7C
2008) 549 F3 1140, 1145 [the interviews "took place in what [a
detective] described as a 'soft' interview room that had carpet,
wallpaper, and comfortable furniture, and was used to interview
victims, witnesses, and suspects"].

[49] USSC: Ohio v.
Robinette (1996) 519 US 33, 39-40 [it "would it be
unrealistic to require police officers to always inform detainees
that they are free to go before a consent to search may be deemed
voluntary"]; US v. Mendenhall (1980) 446 US
544, 555. CAL: P v. Profit (1986) 183 CA3
849, 877. OTHER: US v. Colonna (4C 2007) 511 F3 431,
435 ["Indeed, there is no precedent for the contention that a law
enforcement officer simply stating to a suspect that he is 'not
under arrest' is sufficient to end the inquiry into whether the
suspect was 'in custody' during an interrogation."]. US
v. Anderson (10C 1997) 114 F3 1059, 1064 ["While
[the officer] did not specifically tell [the suspect] that he was
free to leave, that is not required for an encounter to be
consensual."]; US v. Sullivan (4C
1998) 138 F3 126, 132 ["The mere fact that [the officer] did not
affirmatively advise Sullivan that he could refuse to answer [the
officer's] questions or that he was free to go did not transform
the encounter into a custodial interrogation."].

[50] QUOTE FROM:
US v. Czichray (8C 2004) 378 F3 822, 826. USSC:
Oregon v. Mathiason (1977) 429 US 492, 495 ["he was
immediately informed that he was not under arrest"];
California v. Beheler (1983) 463 US 1121, 1122 ["the police
specifically told Beheler that he was not under arrest"];
CAL: P v. Potter (2021) 66 CA5 528, 542 ["defendant
was informed three separate times that he was free to leave"];
In re I.F. (2018) 20 CA5 735, 769 ["you are not under
arrest, you're not being detained" and that he could "get up and
walk out anytime"]; P v. Moore (2011) 51 C4 386, 402 [the
officer "expressly told defendant he was not under arrest and was
free to leave"]; P v. Leonard (2007) 40 C4 1370, 1401
[officer "repeatedly told defendant that he was not under arrest
and he was free to end the questioning at any time and leave"];
P v. Holloway (2004) 33 C4 96, 120 ["at the interview's
outset, they confirmed with him that he was being interviewed
voluntarily and told him he was not under arrest"];
P v. Aguilera (1996) 51 CA4 1151, 1164, fn.7 [a
Beheler admonition "would be a significant indication that
the interrogation remained non-custodial"]. 9th CIR:
US v. Bassignani (9C 2009) 575 F3 879, 886 ["We have
consistently held that a defendant is not in custody when officers
tell him that he is not under arrest and is free to leave at any
time."]. OTHER: US v. Ambrose (7C 2012) 668 F3 943,
958 ["but if any doubt remained it would have been dispelled when
[the US Attorney] informed Ambrose that he was not under arrest"];
US v. Lamy (10C 2008) 521 F3 1257, 1264 ["At the beginning
of the interview, the agents reiterated to Lamy that he would not
be arrested that day regardless of how he answered their
questions"]; US v. Roberts (8C 2020) 975 F3 709, 717 ["But
when a person is lawfully detained, the assurances the officers
repeatedly gave Roberts—you are not under arrest and may stop
answering our questions at any time—are likely sufficient to
refute the notion he is in custody under Miranda."];
US v. Swan (1C 2016) 842 F3 28, 32 [the officers "prefaced
their questioning by telling Swan that she was not under arrest,
that she was free to leave at any point"]. ALSO SEE:
Yarborough v. Alvarado (2004) 541 US 652, 665 [interview
noncustodial although the officer "did not tell Alvarado that he
was free to leave"]; P v. Holloway (2004) 33 C4 96, 121
["Nor was the advisement that defendant was not 'per se' a focus
of suspicion, that police hoped to rule him out, and that he would
be told if he became a suspect, calculated to make a reasonable
person think he was not free to leave."].

[51] USSC:
California v. Beheler (1983) 463 US 1121.

[52] CAL: P v.
Aguilera (1996) 51 CA4 1151, 1164 [the officers "did not
tell defendant he was free to terminate the interview and leave if
he wished," but instead told him that he was not "in custody"].
OTHER: US v. Hughes (1C 2011) 640 F3 428, 437
["although the defendant was told several times that he was not
under arrest, he was never explicitly told that he was free to
terminate the interview"]; US v. Sanchez (8C 2012) 676 F3
627, 631 [telling a suspect that she is free to leave "weighs
heavily in favor of noncustody [but] when officers inform a
suspect only that she is not under arrest, [this circumstance] is
less determinative in favor of noncustody."]. BUT ALSO SEE:
US v. Coulter (5C 2022) 41 F4 451, 461 ["Informing a suspect he is
'not under arrest,] even without explicitly telling] him he is
free to leave, would also suggest to a reasonable person that he
is free to leave.];US v. Littledale
(7C 2011) 652 F3 698, 702 ["even though the agents did not tell
Littledale that he was free to leave, they did assure him that he
was not under arrest."].

[53] CAL: P v. Aguilera (1996)
51 CA4 1151, 1164, fn.7.

[54] 9th CIR:
US v. Craighead (9C 539 F3 1073, 1088 ["The mere recitation
of the statement that the suspect is free to leave or terminate
the interview, however, does not render an interrogation
non-custodial per se. We must consider the delivery of these
statements within the context of the scene as a whole."].

[55] CAL: P v. Esqueda (1993) 17
CA4 1450, 1482 [under guard]; P v. Aguilera (1996) 51 CA3
1151, 1166 [can leave only if he told the truth];
P v. Boyer (1989) 48 C3 247, 271 [officer evaded the
question as to whether the suspect was free to leave].
OTHER: US v. Newton (2C 2004) 369 F3 659, 676
[handcuffs].

[56] CAL: P v.
Stansbury (1995) 9 C4 824, 834 [suspect "had to pass
through a locked parking structure and a locked entrance to the
jail to get to the interview room"]; P v. Kenneth S.
(2005) 133 CA4 54, 65 ["While the interview was conducted in a
section of the police station to which the public was not given
free access, and respondent would have required the accompaniment
of an officer to leave, this was insufficient to have led a
reasonable person in respondent's position to understand that he
was in custody."]. OTHER: US v. Elliott (6C 2017)
876 F3 855, 867 ["an individual questioned in a police station is
not in custody if free to leave that station, even though a police
station includes analogously restricted areas"]; US
v. Ambrose (7C 2012) 668 F3 943, 957 ["The security
provisions applied to all non-staff [FBI] personnel… the
FBI building requirements that mandated escorts for visitors is
not in itself a basis for a reasonable person to believe that he
is not free to leave"]; US v. Muhlenbruch (8C
2011) 634 F3 987, 996, fn. 3; US v. Budd (7C
2008) 549 F3 1140, 1146 ["Budd explains how he had to push a
buzzer to be let into the main lobby of the police station. He was
escorted to the second floor by way of an elevator that required a
magnetic security card to operate. These are not extraordinary
circumstances," edited.].

[57] 9th CIR: US v.
Boucher (1990) 909 F2 1170, 1174 ["Miranda warnings
are not imposed because the questioning is conducted in a patrol
car," edited.]. OTHER: US v. Michalik (5C 2021) 5 F4
583, 588 ["The second factor—the location of the
questioning—suggests that the interview was not custodial.
Michalik sat in the passenger-side front seat of a police car on
the street near his house."]; US v. Santillan (2C 2018) 902
F3 49, 62 ["Officer Moreira's decision to place Santillan in the
back of a police car did not transform the stop into an arrest
because the decision was a reasonable response to legitimate
safety concerns."]; US v. Guerrier (1C 2011) 669 F3
1, 6 ["True, officers questioned Guerrier in an unmarked auto. But
that fact does not by itself implicate Miranda"];
US v. Salvo (6C 1998) 133 F3 943, 951 [although the
interview took place in the officer's car, "this alone is not
enough to convert the interview into a custodial interrogation"];
US v. Jones (10C 2008) 523 F3 1235, 1242 ["Nor is
the fact that most of the conversation took place inside Bridge's
unmarked car dispositive of the custody issue"]; US v.
Boucher (8C 1990) 909 F2 1170, 1174 ["Miranda
warnings are not imposed because the questioning is conducted in a
certain place, i.e., a patrol car"]; US v.
Jones (10C 2008) 523 F3 1235.

[58] CAL: P v. Moore (2011) 51
C4 386, 396 ["Defendant was neither searched nor handcuffed. No
evidence indicated he knew the car doors were locked"].
9th CIR: US v. Henley (9C 1993) 984 F2 1040, 1042
[detained bank robbery suspect was in custody because he was
"questioned by an FBI agent while sitting handcuffed in the back
of a patrol car."]. OTHER: US v. Salvo (6C 1998) 133
F3 943, 951 [interview with a detainee in an FBI agent's car was
not custodial largely because the detainee "was never handcuffed
or otherwise physically restrained"]; US v. Lamy (10C 2008)
521 F3 1257, 1264 [the record does not suggest Lamy was ever
handcuffed"]; US v. Plumman (8C 2005) 409 F3 919, 924
["Plumman was seated in the front passenger seat of [the FBI
agent's] vehicle"]. ALSO SEE: P v. Thomas (2011) 51
C4 449, 546-47 ["it does not necessarily follow that he remained
in custody when he was released from the vehicle before he was
interviewed"].

[59] QUOTE FROM: Howes
v. Fields (2012) 565 US 499, 511.

[60] QUOTE FROM:
Maryland v. Shatzer (2010) 559 US 98, 113.

[61] QUOTE FROM: Howes
v. Fields (2012) 565 US 499, 509 ["We have declined
to accord talismanic power to the freedom-of-movement inquiry and
have instead asked the additional question whether the relevant
environment presents the same inherently coercive pressures as the
type of station house questioning at issue in Miranda."].
CAL: P v. Fradiue (2000) 80 CA4 15, 20 ["The
question must therefore shift to whether some extra degree of
restraint was imposed upon the inmate to force him to participate
in the interrogation."]. 9th CIR:
Cervantes v. Walker (9C 1978) 589 F2 424, 428 ["In the
prison situation [Miranda 'custody'] necessarily implies a
change in the surroundings of the prisoner which results in an
added imposition on his freedom of movement. Thus, restriction is
a relative concept, one not determined exclusively by lack of
freedom to leave. Rather, we look to some act which places further
limitations on the prisoner."].

[62] CAL: P v. Anthony (1986)
185 CA3 1114, 1123 ["appellant was not compelled to speak with the
police"]; P v. Macklem (2007) 149 CA4 674, 696 ["Macklem
was given the opportunity to leave the room if he requested to do
so"]; P v. Ray (1996) 13 C4 313, 338 ["prison officials
exerted no influence on him to discuss or admit the crimes"].
OTHER: US v. Barner (11C 2009) 572 F3 1239, 1245
[the suspect "was not compelled to submit to the meeting with [the
officer]; US v. Willoughby (2C 1988) 860 F2 15, 24 ["there
was nothing in the circumstances that suggested any measure of
compulsion above and beyond that confinement."].

[63] QUOTE FROM: Howes
v. Fields (2012) 565 US 499, 515. CAL:
P v. Krebs (2019) 8 C5 265, 301 ["At no point was defendant
told that he could leave and go back to his cell whenever he
wanted"]. OTHER: US v. Arellano-Banuelos (5C 2019)
927 F3 355, 361 [defendant "was not told in advance that he could
decline the interview" but "other statements and circumstances may
similarly suggest to a reasonable person that he can choose to end
the questioning and leave"].

[64] USSC:
Howes v. Fields (2012) 565 US 499, 515 [appellant "was not
physically restrained or threatened"]. OTHER:
US v. Arellano-Banuelos (5C 2019) 927 F3 355, 361
["Arellano-Banuelos was not restrained during the interview"];
US v. Menzer (7C 1994) 29 F3 1223, 1232 ["the defendant
voluntarily appeared at the interviews, he was not restrained in
any manner, the room was well lit, there were two windows exposing
the interview room to the prison administrative office area, the
door to the interview room was unlocked and the defendant was told
by [an FBI agent] that he was free to leave at any time."];
US v. Conley (4C 1985) 779 F2 970, 973-74 ["Although Conley
wore handcuffs and, at some points, full restraints, evidence in
the record indicates that this was standard procedure for
transferring inmates to the infirmary"].

[65] QUOTE FROM: Howes
v. Fields (2012) 565 US 499, 511.

[66] CAL: P v. Krebs (2019) 8 C5
265, 301 ["defendant was recently arrested and presumably still
experiencing the shock that very often accompanies arrest'].

[67] CAL: P v.
Macklem (2007) 149 CA4 674, 696. NOTE: The court's
analysis in Macklem was almost identical to that employed
by the Supreme Court in Fields, including the
Macklem court's observation that the defendant was not
handcuffed and "was given the opportunity to leave the room if he
requested to do so"]. 9th CIR: Cervantes
v. Walker (9C 1978) 589 F2 424, 427-28.
OTHER: Leviston v. Black (8C 1988) 843
F2 302, 303 [defendant was not automatically in custody when he
was questioned in jail about a robbery that had occurred
approximately one month earlier].

[68] QUOTE FROM: Howes
v. Fields (2012) 565 US 499, 511. CAL:
P v. Krebs (2019) 8 C5 265, 300 [although defendant was
technically in custody for a parole violation, "it is difficult to
separate his jailed status from the investigation into the
[murders]"]]; P v. Macklem (2007) 149 CA4 674, 691 [if the
inmate "is being questioned about a different offense than the one
leading to the pretrial detention, the analysis of the current
custodial status must take into account the type of custody, the
type of questioning, and the identity of the questioner"].
9th CIR: Cervantes v.
Walker (9C 1978) 589 F2 424, 427-28 [jail inmate was
questioned about suspected drugs in his possession]. OTHER:
Garcia v. Singletary (11C 1994) 13 F3 1487,
1489 [court rejects argument that a jailer who had just
extinguished a fire in Garcia's cell was required to obtain a
Miranda waiver before asking Garcia why he set the fire];
Leviston v. Black (8C 1988) 843 F2 302, 303
[defendant was not automatically in custody when he was questioned
in jail about a robbery that had occurred approximately one month
earlier]. NOTE: The Court in Fields said that it "is
not enough to tip the scale in the direction of custody" if the
inmate was questioned about a crime that occurred in the facility.
This is significant because, in such a situation, the officers who
questioned him and the officers who control the jail would usually
work for the same agency.

[69] USSC: Beckwith
v. US (1976) 425 US 341, 347 [noncoercive questioning in
the suspect's home "simply does not present the elements" which
necessitate a Miranda waiver];
Michigan v. Summers (1981) 452 US 692, 702, fn.15 ["the
seizure in this case [in the suspect's home] is not likely to have
coercive aspects likely to induce self-incrimination"].
CAL: P v. Linton (2013) 56 C4 1146, 1167 ["Defendant
invited [the officers] into his house, taking them into his
bedroom."]; P v. Breault (1990) 223 CA3 125, 135
["The questioning took place in Breault's own home."];
In re Danny E. (1981) 121 CA3 44, 50 ["no objective indicia
of arrest or detention were apparent, and the questioning was
brief and nonaccusatorial"]. 9th CIR: US v.
Craighead (9C 2008) 539 F3 1073, 1083 ["courts have
generally been much less likely to find that an interrogation in
the suspect's home was custodial in nature"]. OTHER:
US v. Cox (7C 2022) 54 F4 502, 512 ["The agents spoke with
Cox on the sidewalk and porch outside his home—places where,
presumably, Cox would have felt comfortable."];
US v. Colbert (7C 2022) 54 F4 521, 528 ["In [the officer's]
experience, it took an uncommon amount of time for Colbert to stop
the vehicle, and that suggested to him that Colbert might be
attempting to conceal something, such as a weapon."];
US v. Simpson (8C 2022) 44 F4 1093, 1097 ["Although this
interview took place on law enforcement's 'home turf,' the
plain-clothed agent informed Simpson that he was not under arrest
and that he was free to leave at any time. The provision of this
guidance is a strong objective indicium that a reasonable person
would feel free to leave."]; US v. Guillen (10C 2021) 995
F3 1095, 1109 [although the atmosphere was "police dominated," the
suspect "moved freely about the home—going unaccompanied to the
bathroom and getting a drink from the refrigerator—and was free to
check his phone"]; US v. Hinojosa (6C 2010)
606 F3 875, 883 [a suspect's house "does not present a coercive
environment"]; US v. Panak (6C 2009) 552 F3
462, 465 ["If a home is a 'castle,' a secure redoubt from the
cares of the world, it presumably is the one place where
individuals will feel most unrestrained"]; US v.
Czichray (8C 2004) 378 F3 822, 826 ["When a person is
questioned 'on his own turf' the surroundings are not indicative
of the type of inherently coercive setting that normally
accompanies a custodial interrogation," edited]; US
v. Newton (2C 2004) 369 F3 659, 675 ["absent an
arrest, interrogation in the familiar surroundings of one's own
home is generally not deemed custodial."]; US v.
Luna-Encinas (11C 2010) 603 F3 876, 882 ["we are much less
likely to find the circumstances custodial when the interrogation
occurs in familiar or at least neutral surroundings"].
ALSO SEE: US v. Coulter (5C 2022) 41 F4 451, 459
["Officer Guzman questioned Coulter while he stood on a
neighborhood street. In fact, the questioning took place in front
of the home where Coulter apparently lived with his parents."].

[70] USSC: Orozco v.
Texas (1969) 394 US 324. CAL: P v.
Benally (1989) 208 CA3 900. 9th CIR: US v.
Craighead (9C 2008) 539 F3 1073, 1089 ["Craighead's home
had become a police-dominated atmosphere. Escorted to a storage
room in his own home, sitting on a box, and observing an armed
guard by the door, Craighead reasonably believed that there was
simply nowhere for him to go."]. OTHER: US v.
Mittel-Carey (1C 2007) 493 F3 36, 40 ["While an
interrogation in a defendant's residence, without more, certainly
weighs against a finding of custody, the level of physical control
the agents exercised weighs heavily in the opposite direction,"
edited.]; US v. Panak (6C 2009) 552 F3 462, 466
["Even when an interrogation takes place in the familiar
surroundings of a home, it still may become custodial without the
officer having to place handcuffs on the individual. The number of
officers, the show of authority, the conspicuous display of drawn
weapons, the nature of the questioning all may transform one's
castle into an interrogation cell—turning an inherently
comfortable and familiar environment into one that a reasonable
person would perceive as unduly hostile, coercive and
freedom-restraining."]; US v. Slaight (7C 2010) 620
F3 816, 820 ["nine officers drove up to the house, broke in with a
battering arm, strode in with pistols and assault rifles at the
ready, and when they found [the suspect] naked in his bed ordered
him in an authoritative tone and guns pointed at him, to put his
hands up."]; US v. Revels (10C 2007) 510 F3 1269,
1276 ["The police had recently breached Revels' front door with
force, handcuffed her, and placed her prone on the hall floor."];
US v. Newton (2C 2004) 369 F3 659, 677 [although the
suspect was told he was not under arrest, he was handcuffed];
US v. Colonna (4C 2007) 511 F3 431, 436 [the
suspect's house "was inundated with over twenty-three FBI agents"
and the suspect "was awakened at gun point and guarded at all
times"].

[71] OTHER: US v. Woodson (11C
2022) 30 F4 1295, 1305 ["A reasonable person in Woodson's position
would not feel compelled to stay after being told that he was not
under arrest, not being charged with a crime, and in a voluntary
discussion."]; US v. Ricker (8C 2020) 983 F3 987, 993 ["the
most obvious and effective means of demonstrating that a suspect
has not been taken into custody is for the police to inform the
suspect that an arrest is not being made and that the suspect may
terminate the interview at will"]; US v. Cooper (DCC 2020)
949 F3 744, 749-50 [during the execution of a search warrant "the
agents told Cooper that she was a subject of an investigation and
described the voluntary nature of the interview. They asked her if
she would agree to answer their questions. She agreed."];
US v. Hoeffener (8C 2020) 950 F3 1037, 1046 [while the
suspect's home was being searched, he freely agreed to answer
questions in one of the officers' unmarked cars];
US v. Giboney (8C 2017) 863 F3 1022, 1028 ["Detective Walk
explained to Giboney that he could not 'just take off and walk
around the house' because of the ongoing execution of the search
warrant. Giboney was not handcuffed or otherwise physically
restrained from moving around."]; US v. Williams (8C 2014)
760 F3 811, 814 [after forcible entry to execute warrant the
officers "asked Williams if he would agree to answer some
questions, he told Williams that the decision was voluntary and
that he was not under arrest"]; US v. Valley (7C 2014) 755
F3 581, 585 ["He was told at the outset of the search that he was
free to leave"]; US v. Hargrove (4C 2010) 625 F3
170, 182 [an FBI agent told the suspect that he "was not under
arrest and was free to leave," and there were no contradictory
circumstances]; US v. Hughes (1C 2011) 640 F3 428,
437 ["The number of officers [on the premises] was impressive but
not overwhelming," "no officer made physical contact with [the
suspect]," and the officers "were polite and never hectored the
defendant or raised their voices," but it was a "close" case
mainly because the officers did not tell the suspect that he was
free to leave].

[72] CAL: P v.
Mosley (1999) 73 CA4 1081. OTHER: Reinert
v. Larkins (3C 2004) 379 F3 76, 86-87.

[73] CAL: In re I.F. (2018) 20
CA5 735, 767 [interview in "airlock vestibule, a transitional
place that necessarily connotes ingress and egress," the doors
were "open and unlocked"]. OTHER:
Stechauner v. Smith (7C 2017) 852 F3 708, 716;
US v. Berres (10C 2015) 777 F3 1083, 1092;
US v. Infante (1C 2012) 701 F3 386, 395-98; US
v. Jamison (4C 2007) 509 F3 623. ALSO SEE:
P v. Caro (2019) 7 C5 463, 492.

[74] USSC: Minnesota v.
Murphy (1984) 465 US 420, 433 ["Murphy's regular meetings
with his probation officer should have served to familiarize him
with her and her office and to insulate him from psychological
intimidation that might overbear his desire to claim the
privilege."]. CAL: In re Richard T. (1978) 79
CA3 382 [parole interview]. 9th CIR: US v.
Andaverde (9C 1995) 64 F3 1305, 1310-11 [court
rejects argument that questioning by probation officer is
inherently coercive]. BUT ALSO SEE: US v. Barnes (9C
2013) 713 F3 1200 [court rules the defendant was in custody when
interviewed by FBI agents when he arrived to meet with his parole
officer; the court's analysis is questionable].

[75] 9th CIR: US v.
Bassignani (9C 2009) 575 F3 879, 886. OTHER:
US v. Zabel (6C 2022) 35 F4 493, 502 ["We have noted that
police questioning taking place in the suspect's place of work is
likely to be less intimidating than questioning taking place at
the police station," edited]; US v. Elliott (6C 2017) 876
F3 855, 866 ["The simple fact of being questioned at work does not
suffice to make an interrogation custodial," edited.];
US v. Laurita (8C 2016) 821 F3 1020, 1027 ["The questioning
took place inside a conference room at Laurita's workplace where
he would be comfortable and less threatened."].

[76] USSC:
Minnesota v. Murphy (1984) 465 US 420, 427 ["in the
ordinary case, if a witness under compulsion to testify makes
disclosures instead of claiming the privilege, the government has
not 'compelled' him to incriminate himself"]. CAL:
P v. Tarter (1972) 27 CA3 935, 942 [open courtroom
is not a "police dominated atmosphere"].9th CIR: US
v. Kilgroe (9C 1992) 959 F2 802, 804, 805
["Cross-examination by a prosecutor, conducted in public and in
the presence of both judge and jury, is hardly tantamount to
custodial questioning by the police."]. OTHER: US
v. Melendez (1C 2000) 228 F3 19, 22 ["The dangers of
coerced self-incrimination present in police interrogation—a
unique potential for the exertion of pressure, physical
intimidation, psychological trickery, and prolonged grilling with
no outside contact—are largely absent in a public courtroom."];
US v. Byram (1C 1998) 145 F3 405, 409 ["the
testimony was given in open court and involved none of the dangers
of jail-cell interrogation that prompted Miranda"].

[77] CAL: P v.
Mayfield (1997) 14 C4 668, 733 ["an officer who is talking
to a suspect under these conditions is not physically in the
suspect's presence and thus lacks immediate control over the
suspect, who retains a degree of freedom of action inconsistent
with a formal arrest; indeed, the suspect can readily terminate
communications at any time by hanging up the phone"]; P v.
Anthony (1986) 185 CA3 1114, 1122 ["At the time of these
[phone] calls, appellant was not in the presence of [the
officers]."]. 9th CIR: Saleh v.
Fleming (9C 2008) 512 F3 548, 551 ["Saleh could have
terminated the phone call he had begun at any time"]; US
v. Turner (9C 1994) 28 F3 981, 984 ["he could have
hung up the phone at any time"]. ALSO SEE: Montejo
v. Louisiana (2009) 556 US 778, 795 ["When a
defendant is not in custody, he is in control, and need only shut
his door or walk away to avoid police badgering."]; US
v. Willoughby (2C 1988) 860 F2 15, 24 ["Though he
was not free to leave MCC, he was free to cut off a conversation
with a visitor"].

[78] USSC: Rhode Island
v. Innis (1980) 446 US 291, 300 [Miranda
safeguards "are required not where a suspect is simply
taken into custody, but rather where a suspect in custody is
subjected to interrogation"]. CAL: P v.
Clark (1993) 5 C4 950, 985 ["The police may speak to a
suspect in custody as long as the speech would not reasonably be
construed as calling for an incriminating response."];
P v. Wader (1993) 5 C4 610, 637 ["Not every question
directed by an officer to a person in custody amounts to an
'interrogation' requiring Miranda warnings."].
OTHER: US v. Jones (10C 2008) 523 F3 1235,
1239 ["Miranda rights need only be given to a suspect at
the moment that suspect is 'in custody' and the questioning meets
the legal definition of 'interrogation.'"];
US v. Rambo (10C 2004) 365 F3 906, 909 ["For the
protections of Miranda to apply, custodial interrogation
must be imminent or presently occurring."];
US v. Ambrose (7C 2012) 668 F3 943, 955 ["Once a person is
determined to be in custody, the second inquiry considers whether
he was subjected to interrogation."].

[79] QUOTE FROM: Rhode Island
v. Innis (1980) 446 US 291, 301 ["the definition of
interrogation can extend only to words or actions on the part of
police officers that they should have known were
reasonably likely to elicit an incriminating response"].
CAL: P v. Morris (1987) 192 CA3 380, 389
["The standard here is not what the police absolutely know; it is
what they should know is reasonably likely to elicit
an incriminating response from a suspect."]; P v.
Wader (1993) 5 C4 610, 637 ["The standard is whether under
all the circumstances involved in a given case, the questions are
reasonably likely to elicit an incriminating response from the
suspect."]; P v. O'Sullivan (1990) 217 CA3 237, 242 ["Since
this part of the definition is qualified by the term "reasonably,"
which typically is used to signify that the definition is
objective, the mere fact that appellant might have actually
perceived Officer Elliott's remark as being directed to her does
not compel the conclusion that the officer's conduct was the
functional equivalent of an interrogation."]. 9th CIR:
Martinez v. Cate (9C 2018) 903 F3 982, 995 ["even if
Detective Navarro only intended to recount what had happened
during the conversation, and in no way thought that he was booking
Martinez because he did not give a statement, the court must still
consider how a suspect would perceive the statements"].
OTHER: Nelson v. Fulcomer (3C 1990) 911 F2 928, 934
["the fact that the police intended to elicit incriminating
information, though not dispositive, suggests that they should
have known a particular ploy was reasonably likely to succeed"].
NOTE: "Incriminating response defined: The term
"incriminating response" includes any statement that might be used
against the suspect in court. See Rhode Island v.
Innis (1980) 446 US 291, 301, fn.5; Shedelbower
v. Estelle (9C 1989) 885 F2 570, 573 [an
incriminating response "can be in the form of a denial, an
admission, an alibi, or any other inculpatory or exculpatory
conduct"].

[80] CAL: In re
Albert R. (1980) 112 CA3 783, 787-93 ["That was sure a cold
thing you did, selling a stolen car to a friend"].
COMPARE: In re Curt W. (1982) 131 CA3 169, 180 ["the
officer's remark could hardly be called anything but a tentative,
and somewhat uncertain, statement not reasonably seen by him to
invite a response"].

[81] USSC: Rhode Island
v. Innis (1980) 446 US 291, 301, fn.7 ["where a
police practice is designed to elicit an incriminating response
from the accused, it is unlikely that the practice will not also
be one which the police should have known was reasonably likely to
have that effect"]; Miranda v. Arizona (1966)
384 US 436, 452. CAL: P v. Saldana (2018) 19 CA5
432, 460 ["classic interrogation techniques"].

[82] USSC: Rhode Island
v. Innis (1980) 446 US 291, 302, fn.8 ["Any
knowledge the police may have had concerning the unusual
susceptibility of a defendant to a particular form of persuasion
might be an important factor in determining whether the police
should have known that their words or actions were reasonably
likely to elicit an incriminating response."]; Pennsylvania
v. Muniz (1990) 496 US 582, 601; Brewer
v. Williams (1977) 430 US 387.

[83] USSC: Brewer v.
Williams (1977) 430 US 387 [this is the famous "Christian
Burial Speech" case; although the decision was based on a
violation of the Sixth Amendment, its reasoning applies equally to
Miranda]. CAL: P v. Boyer (1989) 48 C3 247,
274 [the officer "launched into a monologue on the status of the
investigation" including that a newly contacted witness disputed
defendant's claim as to the last time defendant had visited the
victims' residence"].

[84] CAL: P v. Johnson (2022) 12
C5 544, 581-82 ["Under settled law, a psychiatric interview of a
suspect is interrogation if the interview contains material later
to be used in the prosecution's case, including evidence about a
suspect's mental state."]; P v. San Nicolas (2004) 34 C4
614, 640. ALSO SEE: Estelle v. Smith (1981) 451 US
454, 466-69.

[85] USSC:
Arizona v. Roberson (1988) 486 U.S. 675, 687 [officers "are
free to inform the suspect of the facts of the second
investigation as long as such communication does not constitute
interrogation"]. CAL: P v. Gray (1982) 135 CA3 859,
865 [the officer's recitation of the facts "was accurate,
dispassionate and not remotely threatening"]. 9th CIR:
US v. Hsu (9C 1988) 852 F2 407, 411 ["objective,
undistorted presentations by the police of the evidence against a
suspect are less constitutionally suspect than is continuous
questioning because the risk of coercion is lessened when
information is not directly elicited"].

[86] EXAMPLES:

Factual and dispassionate:

You were ID'd: Officers told the suspect that a victim or
witness had identified him as the perpetrator.
P v. Dominick (1986) 182 CA3 1174, 1192;
Shedelbower v. Estelle (9C 1989) 885 F2 570, 573;
Easley v. Frey (7C 2006) 433 F3 969, 974.

We found the gun: An FBI agent told the suspect, "They
found a gun in at your house." US v. Payne (4C 1992) 954 F2
199, 203 ["the rather innocuous statement at issue here did not
constitute interrogation"].

We found the dope: An officer told the suspect that "agents
had seized approximately 600 pounds of cocaine and that [he] was
in serious trouble." US v. Moreno-Flores (9C 1994) 33 F3
1164, 1169. Also see US v. Lopez (1C 2004) 380 F3 538,
545-46 [an officer told an arrested drug dealer that he has found
"the stuff" in his van]; US v. Wipf (8C 2005) 397 F3 677
[an officer informed the suspect that "he had been arrested for
possession of child pornography based on a number of tapes that
had been seized from inside his home."];
US v. McGlothen (8C 2009) 556 F3 698, 702 [an officer
showed an arrested drug dealer a gun he had found during a search
of his home].

Playing wiretapped conversation: Officers played a tape
recording of a wiretapped conversation that incriminated the
suspect. US v. Vallar (7C 2011) 635 F3 271, 285 ["Merely
apprising Vallar of the evidence against him by playing tapes
implicating him in the conspiracy did not constitute
interrogation."].

Displaying a surveillance photo: The defendant invoked his
right to remain silent after he was arrested for bank robbery. An
FBI agent then showed him a surveillance photo showing Davis
robbing the bank. As Davis studied the photo, the agent asked,
"Are you sure you don't want to reconsider?" Davis responded,
"Well, I guess you've got me." He then waived his rights and
confessed. The Ninth Circuit ruled that the agent's act of showing
Davis the photo did not constitute continued interrogation because
"the agent merely asked Davis if he wanted to reconsider his
decision to remain silent, in view of the picture; the questioning
did not resume until Davis had voluntarily agreed that it should."
US v. Davis (9C 1976) 527 F2 1110. Also see
P v. Thomas (1990) 219 CA3 134, 143.

Your accomplice confessed: See P v. Patterson (1979)
88 CA3 742, 752 ["It is well established that the practice of
confronting a suspect with the confession of an accomplice is
entirely lawful and does not vitiate the voluntariness of a
Miranda waiver."]; Nelson v. Fulcomer (3C 1990) 911
F2 928, 934.

Provocative:

• The officer "launched into a monologue on the status of the
investigation including that a newly contacted witness
disputed defendant's claim as to the last time defendant
had visited the victims' residence." P v.
Boyer (1989) 48 C3 247, 274 ["by confronting defendant once
again with a discrepancy in his story, [the officer] effectively
invited defendant to make an incriminating response"].

• An officer who was questioning a murder suspect described
the crime scene, "including the condition of the victim, bound,
gagged, and submerged in the bathtub, and said to defendant that
the victim 'did not have to die in this manner and could have been
left there tied and gagged in the manner in which he was found."
P v. Sims (1993) 5 C4 405, 444.

• When the detective said, "Think about that little
fingerprint on [the Uzi]," he implied that defendant's fingerprint
had been found on the Uzi, and thus indirectly accused defendant
of personally shooting the victims. This comment was likely to
elicit an incriminating response and thus was the functional
equivalent of interrogation," edited.]. P v. Davis
(2005) 36 C4 510, 555.

• In one case, the Court of Appeal ruled that an officer
interrogated a suspect when, after a pursuit, the officer showed
him a piece of jewelry he had attempted to hide.
P v. Taylor (1986) 178 CA3 217. But because the court
failed to present any analysis of this novel conclusion, it may be
an aberration.

• "Repeated recitation of incriminating circumstances."
Smith v. Endell (9C 1988) 860 F2 1528, 1533.

[87] EXAMPLES: The following are
examples of neutral questions or responses that did no constitute
interrogation:

• When a probationer told an officer that there was
"something in his car," the officer asked "what's in your car,"
and the probationer said it was a gun. US v. Becerra (8C
2020) 958 F3 725, 729 ["It was a request for clarification of
Becerra's spontaneous statement that he had 'something' in his
car."].

• "A neutral inquiry of an officer such as 'what happened?'
upon arriving at the scene of a crime is proper and the response
of a suspect is admissible." P v. Mercer (1967) 257 CA2
244, 248. Compare US v. Hernandez (9C 2007) 476 F3 791, 796
[asking an arrested suspect "What's this?" as officers removed an
opaque package from his pocket constituted interrogation]. Also
see P v. O'Sullivan (1990) 217 CA3 237, 243 [not
interrogation when, during a booking search, one officer told
another, "I think I have something here."].

• After defendant said "I'm being set up. I want to see my
lawyer," the officer responded, "No, you're not being set up."
P v. Hensley (2014) 59 C4 788, 810.

• When an officer saw that another officer had just arrested
the person who had just thrown evidence out a window, he said to
the officer, "Yeah, that's the guy." US v. Younger (9C
2005) 398 F3 1179.

• "In particular, the court noted that the questions 'with
who?" and "who were you with?" were follow-up questions that were
simply neutral efforts to clarify Defendant's spontaneous,
volunteered statements, and did not constitute interrogation"];
US v. Yepa (10C 2017) 862 F3 1252, 1259.

• Suspect made an incriminating response to the question,
"Would you mind stepping out to talk about this?"
US v. Wallace (7C 2014) 735 F3 671, 674.

• The officer's remark (saying "we found the stuff, the deal
is off"), although suggesting that the case against the suspect
was strengthened by the discovery of 'the stuff,' was not designed
to elicit an incriminating response."
US v. Lopez (1C 2004) 380 F3 538, 545-46.

• A jailer, upon finding methamphetamine in the bottom of the
defendant's deodorant container, said to her partner, "I believe I
have something here. P v. O'Sullivan (1990) 217 CA3 237,
243 ["There is no basis for finding that the deputy should have
known her quick, informative remark, made contemporaneously with
her discovery, was reasonably likely to elicit an incriminating
response."].

• After the suspect invoked the right to an attorney, the
officer asked him if he had an attorney.
Martinez v. Cate (9C 2018) 903 F3 982, 993-94.

[88] EXAMPLES: The officers' responses
to the following questions were ruled not interrogation:

• Before an officer could complete the
Miranda warning, a bank robbery suspect repeatedly asked
the date of the robbery. US v. Smialek (8C 2020) 970 F3
1070, 1073-74.

• During booking, defendant asked the investigating officer
if his girlfriend, who was arrested with him, "would get in
trouble."
US v. Greene (3C 2019) 927 F3 723, 726.

• Stephens, who was in custody on robbery charges, asked to
speak with a certain detective. When the detective arrived at the
jail, Stephens asked him why the DA was offering him 16 years. The
detective said it was probably because of the seriousness of the
crime and Stephens' criminal record. Stephens responded by
explaining that it was his accomplice who had actually carried the
gun during the robbery. Court: "[Stephens] evidently
thought an offer of a 16-year term was excessive because he was
'not the one with the gun.' Defendant obviously did not perceive
that he was being interrogated but, rather, wanted to voluntarily
assert a reason for leniency." P v. Stephens (1990)
218 CA3 575. Also see P v. Roldan (2005) 35 C4 646,
735-36 [county jail inmate asked why he was being moved to a high
security area]; US v. Mendoza-Gonzalez (8C
2004) 363 F3 788, 795 [when the suspect asked if he could make a
phone call, the officer asked why he wanted to make a call];
Easley v. Frey (7C 2006) 433 F3 969, 974
[officer's "statement regarding the evidence and the possible
consequences of the charges [a suspect] faced, including a
statement that the suspect may face the death penalty, does not
necessarily rise to the level of interrogation under existing
United States Supreme Court precedent"]; McKinney
v. Ludwick (6C 2011) 649 F3 484, 490 ["it is by no
means clear that [the officer's] death-penalty comment to McKinney
qualified as the functional equivalent of interrogation, as
opposed to a type of 'subtle compulsion' to cooperate that is not
foreclosed by Miranda"].

• Clark was arrested for murder and driven to the police
station where he invoked. Officers transported him to a local
hospital to obtain a blood sample. During the trip, Clark asked,
"What can someone get for something like this, thirty years?" An
officer responded, "Probably not unless you were a mass murderer,"
adding that he had never seen anybody serve more than seven and a
half years. Clark responded, "I want this on the record. I'm
guilty. I killed her. What do you want to know?" P v.
Clark (1993) 5 C4 950, 985 ["there was no reason for [the
officer] to have known that his casual estimate of possible
penalties would produce an incriminating response from this
defendant. Defendant phrased his question in abstract terms and
the officer responded in the same terms"].

• Lewis was stopped when officers saw him driving a stolen
car whose owner had been murdered. Lewis was arrested and placed
in the back seat of a patrol car. When he saw a sergeant whom he
knew, he asked, "What are they going to do with my car?" The
sergeant said it was being impounded because it had been used in a
crime. In response, Lewis claimed he bought it from "an elderly
gentleman." The sergeant commented that it was a nice car and
said, "you must have a good job." Lewis responded that he got the
money in Las Vegas. Lewis' statements were used against him at his
murder trial. P v. Lewis (1990) 50 C3 262, 274-75
["this was a casual conversation between two acquaintances;
defendant initiated the conversation and was very concerned about
what would happen to his car," edited].

• A Placer County sheriff's detective was returning a murder
suspect to the US from Japan. During the flight, the suspect asked
if the two murder victims were buried together. The detective said
the victims' bodies were cremated and their ashes scattered in the
High Sierra. At that point, the suspect "suffered an emotional
lapse" and made several incriminating statements. P v.
Mickey (1991) 54 C3 612, 651 ["there was no express
questioning," nor were there "any words or actions [by the
detective that he] should have known were reasonably likely to
elicit an incriminating response," edited].

• An officer asked a man if he would consent to a search, at
which point the man asked what the officer was looking for. The
officer replied "gun" among other things and the man admitted that
had a gun under his mattress.
US v. Crisolis-Gonzalez (8C 2014) 742 F3 830, 837.

• After he was arrested, the defendant asked an agent what
crime was he charged with. The agent told him. Defendant
responded, "I don't even own a computer." US v. Sweeney (1C
2018) 887 F3 529, 535 ["Defendant asked the arresting officer a
question, and the officer responded. The officer's comment did not
require a response."].

[89] CAL: P v.
Celestine (1992) 9 CA4 1370, 1374 ["Far more is required to
constitute the functional equivalent of questioning than merely
advising a person he is under arrest for a specific offense."].
OTHER: US v. McGlothen (8C 2009) 556
F3 698, 702 ["the officer's words indicating that McGlothen was to
be charged with possession of a firearm were statements of fact,
not the functional equivalent of an interrogation"].

[90] USSC: Pennsylvania
v. Muniz (1990) 496 US 582, 602-5 [after
transporting a DUI suspect to jail, an officer instructed him
concerning various sobriety tests that did not call for a verbal
response; he also asked him if he understood the instructions and
asked him to submit to a breath test; suspect responded by making
incriminating statements]. CAL: P v.
Harris (1989) 211 CA3 640, 647-48 ["[The officer's] booking
remark [you will be taken to the jail and booked for murder] was
nothing more than a factual statement about the immediate next
step in the criminal justice process and cannot be considered as
[interrogation]."]; P v. Hayes (1985) 169 CA3 898,
908 ["I'm going to have you booked for first degree murder and
robbery… I'm going to send you down to the Juvenile Hall
and I'm going to call the intercept officer in Probation and get
you detained and send you downtown." The officer then got up to
leave.]. 9th CIR: US v. Edmo (9C 1998) 140 F3 1289,
1293 [when a DUI arrestee refused to take a urine test, an officer
told him he was going to compel a urine test because "there was
dissipating evidence in his urine" (arrestee responded that his
urine would "probably not be clean."]. OTHER: US
v. Morton (DCC 2004) 391 F3 274, 276 [the defendant
told the arresting officer that she "would be released in the
morning" and therefore the officers should not impound her car.
The officer responded by telling her that "she had been arrested
for a serious charge and that she might not be getting out as
quickly as she thinks"]; US v. Collins (6C 2012) 683 F3
697, 703 [the officer's "statement that he would charge both men
with possession of the gun was not a threat but a factually
accurate statement about the next step [the officer] would take as
part of the arrest process"].

[91] 9th CIR:
Martinez v. Cate (9C 2018) 903 F3 982, 995 ["Telling
Martinez that he was being booked because he did not give
his side of the story is different than an officer setting out the
charges and the evidence against the suspect."].

[92] CAL: P v. Huggins (2006) 38
C4 175, 198 [before interviewing the defendant, an officer told
him "that he and his colleague were there because defendant was a
suspect in Lee's murder." Court: "telling defendant he was a
murder suspect did not call on him to confess"]. OTHER:
US v. Head (8C 2005) 407 F3 925, 929 [the FBI
agent "had no reason to know that informing Head that he wanted
'to talk to him about what had occurred that morning' would elicit
an incriminating response"].

[93] CAL: P v. Ray (1996)
13 C4 313, 338 ["To the extent [the investigator] interrupted and
asked questions, they were merely neutral inquiries made for the
purpose of clarifying statements or points that he did not
understand."]; P v. Franzen (2012) 210 CA4 1193, 1203
["Detective Buckleman's only contribution was to ask 'What guy?'
in response to defendant's spontaneous reference to a 'guy looking
for his money.'"]; P v. Mercer (1967) 257 CA2 244,
248 [a suspect who had just been arrested said, "I did it. No one
else was involved." The officer responded, "Did what?"];
P v. Conrad (1973) 31 CA3 308, 319 [suspect entered
a police station and said he wanted to turn himself in; when asked
why, he said it for murder; when asked when the murder happened,
he said it was one week earlier]; P v. Maxey (1985)
172 CA3 661, 667 [when an officer arrested Maxey in a bank for
passing a forged money order, Maxey spontaneously said he received
the money order from two men who had accompanied him to the bank;
the officer asked Maxey to describe the two men; his response to
the officer's request was used against him at trial. Court: The
officer "was in the awkward situation of either not asking what
the two men looked like and risking the disappearance of the real
culprits, or of believing Maxey and attempting to check out his
story. We cannot say that the few questions asked in response to
Maxey's volunteered story about the two men constituted custodial
interrogation"]. OTHER: US v. Gonzales (5C 1997) 121
F3 928, 940 ["when a suspect spontaneously makes a statement,
officers may request clarification of ambiguous statements without
running afoul of the Fifth Amendment"]; US v. Cash (10C
2013) 733 F3 1264, 1278 ["In response to Mr. Cash's request to see
him, [the officer] asked 'what was going on?' Although phrased as
a question, this was merely an innocuous attempt to understand why
Mr. Cash wanted to speak with him."]; Andersen v.
Thieret (7C 1990) 903 F2 526, 532 [when an officer told
Andersen that he was under arrest for disorderly conduct he
responded, "I stabbed her." The officer asked, "Who?" Anderson
then named the woman he had murdered five days earlier. Court:
"The police officer's question was a neutral response, intended to
clarify Anderson's puzzling declaration; it was not coercive
interrogation that Miranda seeks to prevent"].

[94] CAL: P v. McCurdy (2014) 59
C4 1063, 1087 ["The initial questions here appear to have been an
attempt by the officer to establish rapport with defendant."];
P v. Gamache (2010) 48 C4 347, 388 [during
booking, an officer asked the defendant if he liked serving in the
military]; P v. Gurule (2002) 28 C4 557, 602
["pre-interview banter"]; P v. Mickey (1991) 54 C3
612, 651 [small talk during airline flight]; P v.
Roldan (2005) 35 C4 646, 735-36 [a county jail inmate saw a
deputy he recognized and asked "What's happening?"; the deputy
replied by asking "if he was going to stay out of trouble" and the
suspect admitted he had committed a murder]; P v.
Claxton (1982) 129 CA3 638, 654 ["What's up?" or "What are
you in for?"]; P v. Bradford (1997) 14 C4 1005,
1034-35 ["there is substantial evidence that the unnamed
detective's casual statement that defendant looked 'like a traffic
ticket' and question, 'Is it just a warrant?' was not an
interrogation"]; P v. Ashford (1968) 265 CA2 673,
685 ["How's it going, Ashford?"]; P v. Lewis (1990)
50 C3 262, 274 ["this was a casual conversation between two
acquaintances"]. 9th CIR: Mickey v.
Ayers (9C 2010) 606 F3 1223, 1235 ["Casual conversation is
generally not the type of behavior that police should know is
reasonably likely to elicit an incriminating response."];
Clark v. Murphy (9C 2003) 331 F3 1062, 1073
["There is nothing inherently wrong with efforts to create a
favorable climate for confession."]. OTHER: US
v. Tail (8C 2006) 459 F3 854, 858 ["Polite
conversation is not the functional equivalent of interrogation,"].

[95] CAL: P v. Ray (1996) 13 C4
318, 338; P v. Matthews (1968) 264 CA2 557, 567.

[96] CAL: P v.
Jones (1979) 96 CA3 820, 827 [when a suspected drug dealer
swallowed what appeared to be heroin-filled balloons, the
arresting officer asked if he wanted his stomach pumped; the
suspect responded, "Let me die." Court: The officer had a
"justifiable interest in asking him if he wanted his stomach
pumped," and that the "only answer the officer expected or was
interested in was 'Yes' or 'No.'"]. OTHER:
US v. Jackson (8C 2017) 852 F3 764, 771-72 ["because
Jackson voluntarily disclosed that he had been awake for several
days and using drugs, the agents' follow-up questions regarding
his health do not constitute an interrogation"]; US
v. Howard (8C 2008) 532 F3 755 [officer could not
have reasonably known that asking about a bandage on the suspect's
leg would result in an admission that he had been staying in a
drug house].

[97] USSC: Miranda v.
Arizona (1966) 384 US 436, 478 ["Volunteered statements of
any kind are not barred by the Fifth Amendment and their
admissibility is not affected by our holding today."]. CAL:
P v. West (1980) 107 CA3 987, 994 [suspect
spontaneously told an officer, "I should have blown you away when
I had the chance"]; P v. Mercer (1967) 257 CA2 244,
249 ["The police need not gag a suspect who wishes to confess his
commission of an unsolved crime."]. OTHER:
US v. Diaz-Rosado (1C 2017) 857 F3 116, 122 ["If an
individual simply walks into a police station and announces that
he just robbed a bank, the Constitution does not per se bar the
government from using that announcement against the person."].

[98] CAL: P v.
Wader (1993) 5 C4 610 ["[The sergeant's] inquiry regarding
the whereabouts of Hillhouse was designed to elicit information
about Hillhouse, not defendant."]; P v. Moore (2011) 51 C4
386, 395 [the interview "focused on information defendant had
indicated he possessed rather than on defendant's potential
responsibility for the crimes"]; P v. Ochoa (2001) 26 C4
398, 436-37 [officer asked about a separate murder for which the
defendant was not a suspect]; P v.
Dement (2011) 53 C4 1, 26-27 [during casual conversation
after defendant invoked, officer asked questions pertaining to
another murder]; P v. Mosley (1999) 73 CA4 1081,
1089 [officer asked a shooting victim to explain what had
happened]; P v. Underwood (1986) 181 CA3 1223, 1231;
P v. Mazza (1985) 175 CA3 836, 842 ["Mazza was
treated with the deference due a grieving boyfriend who might have
turned out to be an important witness."]. OTHER: US
v. Bogle (DCC 1997) 114 F3 1271, 1275 [detective
told murder suspect that he wanted to talk to him about a murder
for which he was not a suspect]. COMPARE:
P v. Marcel Roquemore (2005) 131 CA4 11, 26
[questions relating to gang activity in general were sufficiently
connected to the charged crime as to constitute interrogation].

[99] USSC:
Pennsylvania v. Muniz (1990) 496 US 582, 602-5 [officer
asked DUI suspect if he understood the FST instructions];
South Dakota v. Neville (1983) 459 US 553, 564 [officer
asked DUI suspect if he will submit to a chemical test].
CAL: P v. Cooper (2019) 37 CA5 642, 651 [officer
asked a DUI arrestee if she understood the FST instructions].

[100] USSC:
Pennsylvania v. Muniz (1990) 496 US 582, 597 [officer asked
a DUI suspect if he knew the date of his sixth birthday; suspect's
inability to do so was direct evidence of his state of sobriety].
CAL: P v. Cooper (2019) 37 CA5 642, 652
[interrogation resulted when officer asked a DUI suspect to guess
as to the amount of time that elapsed while performing a modified
Romberg test].

[101] USSC: Doe v. US (1988)
487 US 201, 219 ["Because the consent directive is not testimonial
in nature, we conclude that the District Court's order compelling
petitioner to sign the directive does not violate his Fifth
Amendment privilege against self-incrimination."]. CAL:
P v. Ruster (1976) 16 C3 690, 700 ["Seeking his
consent to search after defendant invoked his privilege against
self-incrimination did not violate the privilege."]. OTHER:
US v. LaGrone (7C 1994) 43 F3 332, 339 ["a request for
consent to search is not interrogation"].

[102] OTHER: US v.
Hernandez-Mendoza (8C 2010) 600 F3 971, 977 [the officer's
"act of leaving the appellants alone in his vehicle, with a
recording device activated, was not the functional equivalent of
express questioning."].

[103] USSC: Pennsylvania
v. Muniz (1990) 496 US 582, 603 [the officer's
"dialogue with Muniz concerning the physical sobriety tests
consisted primarily of carefully scripted instructions as to how
the tests were to be performed. These instructions were not likely
to be perceived as calling for any verbal response and therefore
were not 'words or actions' constituting custodial
interrogation"]; Rhode Island v. Innis (1980)
446 US 291, 301. CAL: P v. Farnam (2002) 28 C4 107,
180 [not "interrogation" to seek the identity of a suspect "found
under suspicious circumstances or near the scene of a recent
crime"]; In re J.W. (2020) 56 CA5 355, 467 [waiver not
required "given the rarity with which those [booking] questions
elicit answers that might prove incriminating"];
P v. Valdivia (1986) 180 CA3 657, 662 ["Questioning for the
purpose of establishing an individual's identity need not be
preceded by Miranda warnings."]; P v. Powell (1986)
178 CA3 36, 39 ["The booking procedure has been described as
essentially a clerical process. The limited information needed at
a booking procedure is required solely for the purposes of
internal jail administration, not for use in connection with any
criminal proceeding against the arrestee. When use of this
information is confined to those proper purposes, its elicitation
cannot be considered incriminatory."]. 9th CIR:
US v. Arellano-Ochoa (9C 2006) 461 F3 1142, 1146 [asking
the place of birth is a "normal" question attendant to arrest and
custody]. OTHER: US v. Armstrong (8C 2022) 39 F4
1053, 1057 ["Employment is a standard element of a booking inquiry
because a judicial officer is required by statute to consider
employment in deciding whether to release or detain a defendant
pending trial."]; US v. Paxton (7C 2017) 848 F3 803, 813
[asking name, birth date, and places of residence during booking
"are not the sort of questions that one would expect to yield
incriminating information"]; Rosa v. McCray (2C 2005) 396
F3 210, 211 [asking a suspect her actual hair color was a routine
booking question].

[104] OTHER: US v. Hines (8C
2023) __ F4 __ [2023 WL 2441925] ["We have previously recognized
that a request for routine information necessary for basic
identification purposes is not interrogation unless the government
agent should reasonably be aware that the information sought is
directly relevant to the substantive offense charged."].

[105] CAL: P v. Elizalde (2015)
61 C4 523.

[106] CAL: P v. Elizalde (2015)
61 C4 523, 538 ["The police may ask whatever the needs of jail
security dictate. However, when the police know or should know
that such an inquiry is reasonably likely to elicit an
incriminating response from the suspect, the suspect's responses
are not admissible against him in a subsequent criminal proceeding
unless the initial inquiry has been preceded by
Miranda admonishments."].

[107] 9th CIR: US v.
Salgado (9C 2002) 292 F3 1169, 1172 ["Although the
interview occurred at the jail, it was solely for the
administrative purpose of determining whether Salgado was
deportable."].

[108] USSC:
New York v. Quarles (1984) 467 US 649, 656.

[109] OTHER: US v. Simpkins (1C
2020) 978 F3 1, 10 [upon feeling an unknown object during a pat
search, the officer asked "What's this? Court: The officer's
question "arose out of an objectively reasonable concern for
officer safety"].

[110] CAL:
P v. Stevenson (1996) 51 CA4 1234, 1239 ["when it is the
arrestee's life which is in jeopardy, the police are equally
justified in asking questions directed toward providing
life-saving medical treatment to the arrestee without first
warning the arrestee that his answers can be used against him in a
court of law"]; (disapproved on other grounds in
P v. Davis (2009) 46 C4 539, 593)]. OTHER:
US v. Lackey (10C 2003) 334 F3 1224, 1227-28 ["It is
irrelevant that the principal danger in this case was the risk of
injury to the officers or Defendant himself, rather than ordinary
members of the 'public'"].

[111] CAL: P v. Elizalde (2015)
61 C4 523, 541 ["Without minimizing the serious safety concerns
confronted in jails and prisons, we conclude that the legitimate
need to ascertain gang affiliation is not akin to the imminent
danger posed by an unsecured weapon that prompted the [US Supreme
Court] to adopt a public safety exception to the requirement of
Miranda admonitions."].

[112] NOTE: Because
Miranda's booking and public safety exceptions
presuppose that the officer's question was reasonably
likely to elicit an incriminating response, it is unclear why, in
the context of gang-affiliation questions, it is significant that
the officer's questions were reasonably likely to elicit an
incriminating response. If it were otherwise, there would be no
need for an exception. See New York v. Quarles (1984) 467
US 649, 656 ["We do not believe that the doctrinal underpinnings
of Miranda require that it be applied in all its rigor to a
situation in which police officers ask questions reasonably
prompted by a concern for the public safety"].

[113] CAL: P v. Elizalde (2015)
61 C4 523, 541 ["No such imminent danger was present here."].

[114] USSC: Illinois v.
Perkins (1990) 496 US 292, 296 ["Conversations between
suspects and undercover agents do not implicate the concerns
underlying Miranda."]; Arizona v.
Mauro (1987) 481 US 520, 526 [questioning by suspect's
wife]. CAL: P v. Williams (1988) 44 C3 1127, 1142
["[Miranda] has never been applied to conversations between
an inmate and an undercover agent."];

P v. Rodriguez (2019) 40 CA5 194, 198 ["Rodriguez did not
know he was speaking to the police when he talked to an undercover
informant, so no Miranda warning was required."];
P v. Orozco (2019) 32 CA5 802, 812 [no
Miranda violation when the defendant was questioned by his
wife because he did not know that his wife was acting as an
agent]; P v. Gonzales (2011) 52 C4 254, 284
[Miranda does not prohibit "mere strategic deception by
taking advance of a suspect's misplaced trust" in a fellow
prisoner]; P v. Tate (2010) 49 C4 635, 686
[Miranda does not apply "when the suspect is in the process
of a custodial interrogation" and he makes "voluntary statements
to someone the suspect does not believe is a police officer or
agent, in a conversation the suspect assumes is private"];
P v. Guilmette (1991) 1 CA4 1534 [questioning by
victim]; P v. Plyler (1993) 18 CA4 535, 544-45
[questioning by victim]; P v. Zepeda (2001) 87 CA4
1183, 1194-95 [wiretapped conversation with girlfriend];
P v. Webb (1993) 6 C4 494, 526 ["from defendant's
perspective, he was talking with a friend and lover"].
OTHER: US v. Higgins-Vogt (7C 2018) 911 F3 814, 822]
[questions by mental health worker triggered
Miranda because "law enforcement allowed [the worker's]
active participation in the interviews, including by drawing out
incriminating information from [defendant]."]
US v. Cook (10C 2010) 599 F3 1208, 1216.

[115] USSC: Arizona v.
Mauro (1987) 481 US 520, 526 [suspect's wife]. CAL:
P v. Keo (2019) 40 CA5 169, 182 [questioning by social
worker re child dependency issue; "The fact the person conducting
the questioning is a government employee is not a sufficient basis
to require Miranda warnings."];
P v. Orozco (2019) 32 CA5 802, 814 ["there is no
'interrogation' when a suspect speaks with someone he does not
know is an agent of the police"]; P v.
Thornton (2007) 41 C4 391, 433 [suspect's grandmother];
P v. Leonard (2007) 40 C4 1370, 1402 ["A defendant's
conversations with his own visitors are not the constitutional
equivalent of police interrogation."]; P v. Buonauro (1980)
113 CA3 688, 692 ["a private person ordinarily has no duty to
advise a suspect of Miranda rights"];
In re Deborah C. (1981) 30 C3 125, 134 [private detective];
In re Eric J. (1979) 25 C3 522, 528 [Miranda not
implicated when private citizen questioned the suspect in the
officer's presence]. NOTE: In the cases cited below, the
courts seemed to indicate that the undercover agent exception
would not apply if the agent was working with law enforcement.
This makes no sense because all undercover agents are, by
definition, complicit with law enforcement. These statements are
probably inadvertent errors. P v. Miranda (1987) 44
C3 57, 86 ["Miranda warnings are not required when an
accused makes statements to a private citizen, absent evidence of
an agency relationship between the citizen and law enforcement
officials."]; P v. Ammons (1980) 103 CA3 20, 32 ["In
the absence of any evidence of complicity on the part of law
enforcement officials, the admissions or statements made by a
defendant to a private citizen infringe no constitutional
guarantees."];

[116] CAL: P v. Orozco (2019)
32 CA5 802, 816 [the issue is not who initiated the conversation,
but "whether the suspect knew he was talking to a police agent"].

[117] USSC: Miranda v.
Arizona (1966) 384 US 436, 466 ["The presence of counsel,
in all the cases before us today, would be the adequate protective
device necessary to make the process of police interrogation
conform to the dictates of the privilege."].