“MIRANDA AND DRE” Session II

1. “MIRANDAAND DRE”Session II DECP Statewide Coordinator’s Office CHP Academy (916) 376-3200 2006-2008 DRE Recertification

2. After this session the participant will be able to: Know when warnings are required Know when custody occurs Know when the interrogation begins Know the Miranda exceptions What is the DREs role? Overview

3. What are the Bill of Rights, (first 10 amendments. What is the 1st amendment of the Bill of Rights, (Speech, Press, Association and Religion) Why was this first? HISTORY, SCOPE & USE When the U.S. Constitution was written, what was on the framers mind?

4. Protects its citizens from unreasonable search and seizure. (think about what the British did to the colonies, did they mess with their personal effects) HISTORY, SCOPE & USE 4th Amendment

5. Right not to be compelled to incriminate yourself, the government had to support its charges without a confession, (why, because that’s what the British did to the colonies) HISTORY, SCOPE & USE 5th Amendment

6. The government has to act fair, in its dealings with its citizens. HISTORY, SCOPE & USE 14th Amendment

7. Miranda v. Arizona (1966) 384 U.S. 436 Case Overview: Defendant Ernesto Miranda was arrested for rape and kidnapping Identified at the police station by a witness Defendant never requested or was offered an attorney AND willingly confessed HISTORY, SCOPE & USE

8. Miranda was convicted and sentenced by the Arizona Supreme Court 1966, the United States Supreme court reversed the lower courts decision Supreme Court decided that certain “procedural safeguards” shall be set HISTORY, SCOPE & USE

9. Do we Mirandize whenever we arrest someone? No, it is BAD practice and police officers are not required to UNLESS: The suspect is in custody AND He is about to be “interrogated” e.g., any questioning that may elicit an incriminating response “Miranda and the DRE”

10. Define “In Custody”: There are two ways in which “custody” can occur. Occurs automatically when the suspect is told he is under arrest Note: Even if the officer is questioning the subject for an unrelated crime De facto arrest or functional arrest occurs…..what is a de facto arrest? “Miranda and the DRE”

11. The “reasonable person” test and “de facto” arrests: Unarrested suspect being questioned OR interrogated A situation created by the officer that either indicated an arrest OR Freedom of movement to the degree associated with an arrest And a reasonable “innocent” person in the same scenario would have perceived an arrest “Miranda and the DRE”

12. What if the suspect is the “focus” of the investigation? Question: Is Miranda required? Miranda is not required unless the officer’s suspicion is disclosed to the suspect. *Discussion “Miranda and the DRE”

13. How about when “probable cause” exists to arrest? Like “focus”, the existence of PC is irrelevant so long as the officers do not notify the suspect it exists. “Miranda and the DRE”

14. Case Law Berkemer v. McCarty a motorist was stopped for DUI Stumbled out of vehicle on traffic stop Officer testified at that point he knew the driver was DUI Never communicated his intention to the defendant “Miranda and the DRE” GUILTY

15. People v. Blouin Officer had PC to arrest the defendant for possession of a stolen vehicle Officer went to his home Questioned about how he obtained it Defendant made incriminating statements Even though PC existed the officer never “communicated” it to the suspect “Miranda and the DRE” GUILTY

16. Handcuffs (detainees ?) Drawn Gun “Free to go” Manner of questioning Number of officers Length of questioning Miranda Warning given Where the questioning occurred? “Miranda and the DRE” OBJECTIVE CIRCUMSTANCES

17. Questioning Detainees Not automatically “in custody” because of three things: Detentions usually occur in public places Relatively brief encounters Atmosphere is not coercive in nature *slightly resembles custody “Miranda and the DRE”

18. What can change the detention to custody? Handcuffs unless (1) reasonably necessary (2)removed once questioning occurred “Miranda and the DRE”

19. What can change the detention to custody? Drawn Weapons unless (1) the subject did not see it (2) initial danger level justified it (3) reholstered once questioning begun “Miranda and the DRE”

20. “Miranda and the DRE” What can change the detention to custody? • Number of Officers used during questioning • Length of detention, “what is reasonable or justified”

21. When does “interrogation” begin? Two Types of interrogation exist, just like custody: Direct questioning Questions/statements most likely to elicit an incriminating response “Miranda and the DRE”

22. FOUR BASIC PRINCIPLES: Reasonably likely to elicit an incriminating response Officer’s intent Exploiting fears or weaknesses Link between question and crime “Miranda and the DRE”

23. Express Waiver: Do you understand “yes” or “No” Implied Waiver: By actions of the suspect he or she waives Note: Remember all waivers, must be Voluntary, Intelligent and Knowingly given. “Miranda and the DRE” Waivers

24. Neutral Questions and Remarks Summary: Questions and remarks that are not reasonably likely to elicit an incriminating response are known as “Neutral” expressions…People v. Mercer…which includes… “Miranda and the DRE”

25. Includes: Routine booking questions Situational questions and remarks Officer answering questions from arrestees Conversation fillers Casual conversation Clarifying Miranda rights “Miranda and the DRE”

26. “Miranda and the DRE” ARE THERE EXCEPTIONS TO MIRANDA? • Public safety • Necessary to protect life or property • Reasonably necessary to eliminate the threat • Emergency • Danger to Victim • Danger to suspect • Danger to officers

27. “Miranda and the DRE” ARE THERE EXCEPTIONS TO MIRANDA? • Undercover agent Exception Illinois v. Perkins..... “Conversations between suspects and UC officers do not implicate concerns underlying Miranda“ Watch for 6th amendment issues

28. GENERAL RULE If a suspect invokes his Miranda rights, officers may NOT interrogate him. If the suspect later makes a statement in response to questions that do not constitute “interrogation”, it will not be suppressed. “Miranda and the DRE”

29. So, why is this all important to me as a DRE? Statements will be inadmissible Due Process implications Civil Liability Bad Case Law “Miranda and the DRE”

30. YOU HAVE THE RIGHT.. “Miranda and DRE”

31. Question: What if I ask the questions first, then advise the suspect and ask the questions again? Case Law: Missouri vs. Seibert “Miranda and the DRE”

32. Case Summary: “Miranda and the DRE” The Missouri Cops did exactly that, asked the questions, received incriminating responses (to a murder) then read the Miranda warnings and asked the same questions again.U.S. Supreme Court Ruled that the deliberate act of not advising the suspect first of the Miranda warnings, made the subsequent admission after the advisement invalid.

33. More Case Law….. Santa Monica v. Butts (9th Circuit of Appeals) A couple of Police Officers did not pay attention to the suspects request to have an attorney present. Video “Miranda and the DRE”

34. “Miranda and the DRE” Court’s Opinion:The police tried to hide behind the veil of qualified immunity. The 9th Circuit of Appeals, ruled that if the police intentionally violate a constitutionally protected right then the officers will have to defend themselves in court.

35. “Miranda and the DRE” GENERAL RULE As DREs, our primary responsibility is to ensure a medical emergency does not exist. If the subject invokes still ask the medical questions within DRE step #3. Remember, the public policy exception to the Miranda warnings we can ask very specific questions only tailored to determine if the person is in a serious medical condition. What could be lost? • Could be suppressed at trial • But, do we need the statements to prove they are impaired or under the influence? NO!!

36. “Miranda and the DRE” Moral of the Miranda Story • CYA, CYA, CYA • Follow YOUR department policy • Do the right thing • Minimize medical emergencies • DRE motto…. “It is the totality of the circumstances”.

37. Resources Internet: “Findlaw” “Miranda and the Law”, 1999, Robert C. Phillips, CDAA Point of View, “Miranda”, 2005, Alameda County District Attorney’s Office American Prosecutor’s Research Institute, Washington D.C. California Criminal Investigation, 2003, Alameda County District Attorney’s Office, “Miranda” “Miranda and the DRE”