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The test for determining whether an accused’s statements were obtained as the result of “interrogation” or its functional equivalent is whether the words or actions of the police are such that they should have known the same were reasonably likely to elicit an incriminating response from the suspect. Rhode Island v. Innis, 446 U.S. 291, 299-301 (1980).

“The concern of the Court in Miranda was that the ‘interrogation environment’ created by the interplay of interrogation and custody would ‘subjugate the individual to the will of his examiner’ and thereby undermine the privilege against compulsory self-incrimination…. We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police.” Rhode Island v. Innis, 446 U.S. at 299-301.

See also U.S. v. Robertson, 833 F.2d 777 (9th Cir. 1987) [brief detention at gun point was arrest not Terry stop]; Zimmerman v. Commonwealth, 363 S.E.2d 708 (Va. 1988) [evidence, here the defendant’s name, obtained during an illegal investigative stop is suppressible]; U.S. v. American Investors of Pittsburgh, Inc., 672 F. Supp. 850 (W.D. Pa. 1987) [where 37 agents took control of business; held custodial].

With regard to when an interrogation is “custodial” the court will look to the totality of the circumstances to determine when a suspect is free to leave. Merely telling a suspect he is “free to leave” is not always sufficient.

In U.S. v. Craighead, 539 F.3d 1073 (9th Cir. 2008), the court find that this statement was particularly hollow when a suspect was in his ultimate sanctuary – his home. The court noted that the usual inquiry did not address the the sime fact that if a suspect is already at home, where would be be free to go since “[h]e is already in the most constitutionally protected place on earth. To be ‘free’ to leave is a hollow right if the one place the suspect cannot go is his own home.” Id. at 1083.

According to the United States Supreme Court, a bait and switch technique does not undermine Miranda. Whether a citizen is aware of all the crimes about which he may be questioned is not determinative in establishing a valid waiver of his or her Fifth Amendment privilege against self-incrimination. The Agents’ advice when giving Miranda warnings that they were investigating interstate transportation of stolen weapons did not preclude use of answers to questions relating to murder. Colorado v. Spring, 479 U.S. 564, 107 S.Ct. 851, 93 L.Ed.2d 954 (1987).

Nonetheless, the court maintains that invocation of the Right to Counsel pursuant to one’s Fifth Amendment right to counsel bars further police initiated questioning without counsel for both the crime under investigation at the time the request is made and also any other unrelated offense that the defendant might be suspected of. Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704(1988)9 See also Minnick v. Mississippi, 498 U.S. 146, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990) ; Holloway v. State, 780 S.W.2d 787 (Tex.Crim App. 1989).


 The Supreme Court held that an undercover police officer need not Mirandize an incarcerated suspect who has been led to believe he is speaking to a fellow prisoner, at least not when he or she has yet to be formally charged. Illinois v. Perkins, 496 U.S. 292, 110 L.Ed.2d 243 (1990).

The Court’s rationale was that “the essential ingredients of a ‘police-dominated atmosphere’ and compulsion are not present when an incarcerated person speaks freely to someone that he believes to be a fellow inmate. Coercion is determined from the perspective of the suspect     When a suspect considers himself in the company of cell mates and not officers, the coercive atmosphere is lacking.” “It is the premise of Miranda that the danger of coercion results from the interaction of custody and official interrogation      ‘[W]hen the agent carries neither badge nor gun and wears not ‘police blue’, but the same ‘prison gray’ as the suspect, there is no ‘interplay between police interrogation and police custody’.”

But where coercion enters the picture, the Supreme Court has suppressed the statement. Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) [badge bearing cellmate promised to protect the defendant from prison violence, thus adding coercion to the encounter]. The Court also distinguishes the situation where “[t]he suspect … was aware that the agent was a government official” and therefore had some reason to assume he or she “might feel coerced,” see Illinois v. Perkins, 496 U.S. 292, 110 S.Ct. at 2398 (1990);

9 Butler v. McKellar, 494 U.S. 407, 108 L.Ed.2d 347 (1990) [the Supreme Court decided that Roberson announced a “new rule” and, therefore, the Defendant was not entitled to its retroactive application on collateral review]. The Court provided a new definition for the second exception to the Teague “new rule” restriction of which the dissent complains:

“Today, under the guise of fine-tuning the definition of ‘new rule,’ the Court strips state prisoners of virtually any meaningful federal review of the constitutionality of their incarceration. A legal ruling sought by a federal habeas petitioner is now deemed “new” as long as the correctness of the rule, based on precedent existing at the time the defendant’s conviction became final, is ‘susceptible to debate among reasonable minds.’ Put another way, a state prisoner can secure habeas relief only by showing that the state court’s rejection of the constitutional challenge was so clearly invalid under then-prevailing legal standards that the decision could not be defended by any reasonable jurist.  With this requirement, the Court has finally succeeded in its thinly veiled crusade to eviscerate Congress’ habeas corpus regime.

..[T]oday’s decision, essentially foreclosing habeas review as an alternative ‘avenue of vindication,’ overrides Congress’ will and leaves federal judicial protection of fundamental constitutional rights during the state criminal process solely to this Court upon direct review. I share Congress’ lack of confidence in such a regime. After today, despite constitutional defects in the state processes leading to their conviction or sentencing, state prisoners will languish in jail and others like Butler will die because state courts were reasonable, even though wrong.”

The majority apparently finds such injustice acceptable based upon an asserted ‘interest in leaving concluded litigation in a state of repose.’…This will not do.” Butler v. McKellar, 494 U.S. 407, 108 L.Ed.2d 347 (1990).

Mathis v. U.S., 391 U.S. 1 (1968); or, where the suspect “has been [formally] charged with the10 crime” and “the Sixth Amendment prevents the government from interfering with the accused’s right to counsel”; Massiah v. U.S., 377 U.S. 201 (1964); U.S. v. Henry, 447 U.S. 264 (1980); Maine v. Moulton, 474 U.S. 159, 176 (1985).

One’s Sixth Amendment right to counsel is different than one’s Fifth Amendment right to counsel. The Sixth Amendment right is offense specific. Thus, even when the defendant is formally charged, the Sixth Amendment will not shield a defendant from questioning related to other charges. Noting that the Sixth Amendment is “offense-specific,” the Supreme Court held “[i]t cannot be invoked once for all future prosecutions, for it does not attach until a prosecution is commenced….” McNeil v. Wisconsin, 501 U.S. 171, 115 L.Ed.2d 158, 111 S.Ct. 2204 (1991). This is true even for uncharged offenses that are inextricably intertwined with the charged offense. Texas v. Cobb, 532 U.S. 162, 121 S.Ct. 1335, 149 L.Ed.2d 321 (2001). Although any incriminating statements pertaining to other crimes would only be admissible “at the trial of those offenses.” McNeil v. Wisconsin, 501 U.S. 171, 111 S.Ct. 2204, 115 L.Ed.2d 158, (1991).\


 While the Supreme Court in Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) made clear that “interrogation includes a ‘practice that the police should know is reasonably likely to evoke an incriminating response from a suspect,'” conversation between an accused and his spouse in the presence of a police officer and, in plain view of an operating tape recorder, does not constitute “interrogation” within the meaning of Miranda or Rhode Island v. Innis. See Arizona v. Mauro, 481 U.S. 520, 107 S.Ct. 1931, 95 L.Ed.2d 458 (1987).

The four dissenting justices strongly criticized the majority’s narrow view of “interrogation:”

“In Rhode Island v. Innis, the Court emphasized that the police ‘cannot be held accountable for the unforeseeable results of their words or actions. Rhode Island v. Innis, 446 U.S. at 301-02. But there is a grand canyon between innocent unforeseeability and the mere lack of explicit police subterfuge that the Court now finds adequate to preclude a finding that an interrogation has taken place….

It is undisputed that a police decision to place two suspects in the same room and then to listen to or record their conversation may constitute a form of interrogation even if no questions are asked by any police officers. That is exactly what happened here. The police placed respondent and his wife, who was also in police custody, in the same small area. Mr. and Mrs. Mauro were both suspects in the murder of their son. Each of them had been interrogated separately before the officers decided to allow them to converse, an act that surely did not require a tape recorder or the presence of a police officer within hearing range. Under the circumstances, the police knew or should have known that Mrs. Mauro’s encounter with respondent was reasonably likely to produce an incriminating response.”  Mauro, 481 U.S. at 534-35.

The citizen has the initial burden of demonstrating that he or she was in custody at the time the statements were obtained. See, Xu v. State, 191 S.W.3d 210 (Tex. App.—San Antonio, 2002)[un-Mirandized questioning at police station when person voluntarily accompanied police to the station is not custodial interrogation];U.S. v. DeLaFuente, 548 F.2d 528, 533-34 (5th Cir. 1977);U.S. v. Conley, 779 F.2d 970 (4th Cir. 1985)[“custodial” interrogation of prison inmate does not occur in the absence of restraint exceeding that normally imposed in prison];U.S. v. Beraun-Panez, 812 F.2d 578 (9th Cir. 1987) [defendant was separated from co-worker in remote rural area, accused of lying, confronted with witnesses who made false statements to him, and where officers took advantage of defendant’s insecurities about his alien status, same constituted custodial interrogation and Miranda warnings were required].

10   The Supreme Court held that police are prohibited from initiating interrogation of a custodial suspect as to second unrelated offense, where the accused has previously cut-off interrogation by requesting counsel. Arizona v. Roberson, 486 U.S. 675, 685 [noting that “the inherent pressures of custodial interrogation … arise from the fact of such interrogation and exist regardless of the number of crimes under investigation”].


 Wainwright v. Greenfield, 474 U.S. 284, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986) [Miranda implicitly mandates that silence carry no penalty]; Doyle v. Ohio, 426 U.S. 610, 618, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) [the prosecution cannot use the defendant’s silence, after receiving his Miranda warnings, even as evidence of sanity].

But see Greer v. Miller, 483 U.S. 1056, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987) [no Doyle violation where prosecutor’s question “why didn’t you tell this story to anybody when you got arrested” was immediately objected to and the jury instructed to disregard it];Gladden v. Roach, 864 F.2d 1196 (5th Cir.1989) [no absolute right to silence questions regarding identity and residence are not interrogation for Fifth Amendment purposes]; U.S. v. Carmona, 873 F.2d 569 (2d Cir. 1989) [requested information was simply identification for booking and arraignment].

See also U.S. v. Burns, 276 F.3d 439 (8th Cir. 2002) [allowing the admission of evidence of a defendant’s refusal to speak with officers after initially waiving his Miranda rights.]; and U.S. v. Andújar-Basco, 488 F.3d 549 (1st Cit. 2007)[holding express invocation of Miranda rights, as opposed to mere refusal to talk, after initially waiving them, is inadmissible].


 Prosecution cannot use Defendant’s silence against him regardless whether he had been warned or not, relying upon independent State Constitutional grounds. TEX. CONST. Art. I, § 10.

See Sanchez v. State, 707 S.W.2d 575, 580 (Tex.Cr.App. 1986) [“we hold that pursuant to Art. I, ‘ 10 of the Texas Constitution, when the defendant is arrested he has the right to remain silent, and the right not to have that silence used against him, even if for impeachment purposes regardless of when he is later advised of his rights.”].


 Incriminating statements by an accused in the course of plea discussions are inadmissible against him or her in any civil or criminal proceeding. FED. R. CRIM. P. 11(e)(6); FED. R. EVID. 410. Rule 11 was amended in 1979 to expressly require that to render plea discussions inadmissible under FED. R. CRIM. P. Rule 11(e)(6)(D) they must be with an “attorney for the Government”. U.S. v. Keith, 764 F.2d 263 (5th Cir. 1985). However when, as the result of the Government’s conduct, “the accused ‘exhibited an actual subjective expectation to negotiate a plea at the time of the discussion’ and the expectation [is] reasonable, given the circumstances” such statements fall within Rule 11(e)(6)(D)’s proscription. U.S. v. Keith, 764 F.2d 263 (5th Cir. 1985).

U.S. v. Robertson, 582 F.2d 1356, 1366 (5th Cir. 1978) [en banc]; U.S. v. Posey, 611 F.2d 1389, 1390 (5th Cir. 1980).

“Obviously then, the accused’s assertions concerning his state of mind are critical in determining whether a discussion should be characterized a plea negotiation………………………………………………………………. The trial court must apply a two-tiered analysis and determine, first, whether the accused exhibited a plea at the time of the discussion, and, second, whether the accused’s expectation was reasonable given the totality of the objective circumstances.” U.S. Posey, 611 F.2d at 1390.

U.S. v. Robertson, 582 F.2d 1356, 1366 (5th Cir. 1978) [en banc]. U.S. v. Boltz, 663 F. Supp. 956 (D. Alaska 1987).


 Before U.S. v. Rodriguez-Rios, 14 F.3d 1040 (5th Cir. 1994) a defendant’s negative response to accusatory questioning could not constitute a violation of 18 U.S.C. § 1001, prohibiting the making of false statements to a federal official. However, the Court dispensed with the principle finding “exculpatory no” exception does not apply to statute governing crime of making false, fictitious, or fraudulent statement in any matter within jurisdiction of department or agency of United States. Brogan v. U.S., 522 U.S. 398, 118 S. Ct. 805 (1998) [exculpatory “no” doctrine is not a defense under the plain language of 18 U.S.C. § 1001].

In Brogan, federal investigators visited the defendant at his home where he was asked if he had received any labor-oriented “gifts” from the corporation whose employees were represented by the union. The defendant replied “no” and, as a result, the Government charged the defendant with making false statements within the jurisdiction of a federal agency. Brogan v. U.S., 522 U.S. 398, 118 S. Ct. 805 (1998).


 Where a border patrol agent has probable cause to arrest a suspect, he must give the arrestee Miranda warnings. U.S. v. Bengivenga, 811 F.2d 853 (5th Cir. 1987).


 Some courts have held that, because of its inherent unreliability, an “involuntary” confession is inadmissible regardless of the role played by police officials, People v. Switzer, 355 N.W.2d. 670 (Mich. 1984) [Michigan Court of Appeals held that a confession coerced by a private citizen is “involuntary” and therefore inadmissible]. But the United States Supreme Court held that neither a confession nor a waiver of Miranda rights will be subject to suppression as involuntary unless same is the product of “official coercion”. See Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). Official coercion apparently includes that a youthful suspect’s voluntary trip to the police station late at night did not keep the encounter from qualifying as an arrest under the Fourth Amendment. Kaupp v. Texas, 538 U.S. 626, 629, 123 S. Ct. 1843 (2003).


 Criminal suspects have a right to have their lawyer present during police questioning, and the police are required to inform suspects of that right as part of their “Miranda warning.” In this case, police officers told a suspect that he had “the right to talk to a lawyer before answering [any] questions” and “[y]ou have the right to use any of these rights at any time you want during this interview.” The Court held that even though this warning did not specifically mention the right to have a lawyer present during questioning (as opposed to the right to talk to the lawyer before questioning), the warning nonetheless was constitutional because it conveyed to the suspect that he had the right to have an attorney present. Florida v. Powell 559 U.S. 50 (2010)


The Supreme Court has held that Miranda warnings have a constitutional base. Thus the requirement the warning be given cannot be defeated by Congressional enactment. See Dickerson v. U.S., 530 U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000). The Supreme Court in Fellers v. U.S., 540 U.S. 519, 124 S. Ct. 1019, 157 L.Ed.2d 1016No. 02-6320, (2003)., granted certiorari to decide whether the Eighth Circuit properly admitted Fellers’ statements after officers interviewed him, knowing they were going to arrest him, before administering his Miranda rights. Fellers had been indicted before the officers approached him for an interview. However the officers did not tell him that they were there to arrest him until after they interviewed him. Commentators view this as another attempt to circumvent the requirement for Miranda warnings.

In U.S. v. Patane, 542 U.S. 630, 124 S.Ct. 2620, 159 L.Ed.2d 667, (2004), the Supreme Court has granted certiorari to decide whether physical evidence obtained by police as the result of “un-Mirandized” statements by criminal defendants must be excluded at trial. The lower court, the Tenth Circuit, decided the Dickerson, supra, reopened the question.


 An un-warned incriminating statement may not be used to establish probable cause unless there is no indication of trickery or coercion on the officer’s part. U.S. v. Morales, 788 F.2d 883, 886 (2d Cir. 1986). See also, U.S. v. Dart, 747 F.2d 263 (4th Cir. 1984)., which held even though an officer’s decision to enter into wharehouse that had been burglarized was lawful, his subsequent decision to snoop further by looking under a blanket was not justified by extigent circumstances.


 When the police arrest a suspect, they must tell him his “Miranda rights,” which include the right to a lawyer and the right to remain silent. Once the suspect requests a lawyer, the police may not question him again until he is given one, even if he later waives that right. In this case, the Court ruled that, if the suspect has been released from custody for at least fourteen days since he last requested a lawyer, the police may resume questioning him if he waives his right to a lawyer at that time. In the prison context, the police may resume questioning an inmate after he has been released into the general prison population for fourteen days. Maryland v. Shatzer 130 S. Ct. 1213 (2010)


 The police are required to stop questioning a suspect once he invokes his Miranda right to remain silent. In this case, the Court held that a suspect did not invoke his right to remain silent by simply not answering questions. Instead, a suspect must unambiguously invoke his right to remain silent before the police are required to end their questioning. Berghuis v. Thompkins 560 U.S. 370 (2010).

In Salinas v. Texas, 133 S. Ct. 2174 (2013), the Court upheld the prosecution’s use of an accused’s silence as evidence of guilt. See Salinas v. Texas, 133 S. Ct. 2174 (2013). The suspect in Salinas, without being arrested or receiving Miranda warnings answered questions asked by a police officer investigating a murder. Id. at 2177. However, Salinas fell silent when asked whether a ballistics test would prove that shotgun shell casings from the crime scene would match his gun. Id. In a plurality opinion, joined by Chief Justice Roberts and Justice Kennedy, Justice Alito wrote that, “[p]etitioner’s Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer’s question.” Id. at 2178. Because Salinas was voluntarily interviewed by the police, and free to end the interview and leave at any time, he was “outside the scope of Miranda and other cases in which [the Court has] held that various forms of governmental coercion prevented defendants form voluntarily invoking the privilege.” Id. at 2180. Justice Alito went on to add that the Court’s history of “cases establish that a defendant normally does not invoke the privilege by remaining silent.”

Id. at 2181. Therefore, “[b]efore petitioner could rely on the privilege against self-incrimination, he was required to invoke it.” Id. at 2184. So, in order to maintain the constitutional privilege of silence, one must speak.

Justice Thomas, joined by Justice Scalia, concurred in the judgement, but wrote separately to more directly answer the question, “whether the Fifth Amendment privilege against compulsory self-incrimination prohibits a prosecutor from using a defendant’s silence as evidence of his guilt.” Salinas, 133 S. Ct. at 2184 (Thomas, J., concurring). The Justices looked to the 18th century and found that “at the time of the founding, English and American courts strongly encouraged defendants to give unsworn statements and drew adverse inferences when they failed to do so,” and agreed “with the plurality that Salinas’ Fifth Amendment claim fails.” Id. at 2184–85 (Thomas, J., concurring).

In his dissent, Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, begins by noting that the “Fifth Amendment prohibits prosecutors from commenting on an individual’s silence where that silence amounts to an effort to avoid becoming ‘a witness against himself.’” Salinas, 133 S. Ct. at 2185 (Breyer, J., dissenting). Noting that the plurality would require a suspect to expressly invoke his Fifth Amendment privilege, Justice Breyer asks, “does it really mean that the suspect must use the exact words “Fifth Amendment”? How can an individual who is not a lawyer know that these particular words are legally magic?” Id. at 2190 (Breyer, J., dissenting). The dissent opposed a rule based approach to solving the issue, recognizing the difficulties and adding “that other cases may arise where facts and circumstances surrounding an individual’s silence present a closer question. The critical question—whether those circumstances give rise to a fair inference that the silence rests on the Fifth Amendment—will not always prove easy to administer. But that consideration does not support the plurality’s rule-based approach here, for the administrative problems accompanying the plurality’s approach are even worse.” Id.

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