Suspects have to be in custody and subject to questioning or its equivalent for Miranda to kick in.
By Jane Rydholm
Movies and television shows commonly portray police officers arresting and handcuffing suspects, reading them their Miranda rights, and questioning them. But Miranda comes into play in more scenarios than this one. The Miranda warning requirement arises if the suspect is subject to any kind of “custodial interrogation.”
(For situations in which the warning isn't necessary, see Exceptions to the Miranda Rule. And to learn about whether the government can use information it acquires in violation of Miranda, see When Police Violate the Miranda Rule.)
The term “custodial” refers to the suspect being in custody. It doesn’t necessarily mean handcuffs. Rather, it means that the police have deprived the suspect of his or her freedom of action in any significant way. (See Is a traffic stop an “arrest” within the meaning of Miranda? )
“Interrogation” means questioning. This questioning can be in the form of an officer asking the suspect direct questions, or it can be comments or actions by the officer that the officer should know are likely to produce an incriminating reply. (For a detailed discussion of what kind of police behavior equals interrogation, see Do officers have to read the Miranda rights before talking to a suspect?)
So, when is someone subject to custodial interrogation per Miranda? Courts have generally used a “totality of the circumstances” test to figure this out. For this test, a court will look at a number of factors and focus on the “physical and psychological restraints” on the person’s freedom during the interview. (U.S. v. Axsom, 289 F.3d 496 (8th Cir. 2002).)
Courts may consider several factors to determine whether an interrogation was custodial. Overall, they try to determine how intimidating, coercive, and compelling the environment was. The questions they weigh include:
- Who asked the questions? Was it a police officer? A prison guard? Was the questioner in a position of authority? Was he or she carrying a gun? The identity of the questioner goes to the intimidation level of the interview. For example, a court may consider an armed police officer or prison guard more compelling than a postal inspector.
- How many officers were there? More officers points to a more coercive setting.
- Who else was there? A court may find a situation less coercive if the suspect is surrounded by friends or family.
- Who initiated the discussion? A suspect walking up to an officer and asking questions suggests a non-custodial situation.
- Did the officer tell the suspect the interview was voluntary? If so, a court is more likely to consider the interview non-custodial.
- Where did the questioning take place? Was it at the police station? The suspect’s house? On the street? In a hospital room? The issue is how familiar or coercive the setting is to the suspect. An interview at a police station, for example, would likely be more intimidating than one on a sidewalk.
- Did the officer use any force on the suspect? If an officer used force prior to or during the questioning, a court may consider it a custodial situation.
- Did the officer use any physical restraints? Was the suspect able to move around? Restriction of movement supports a finding of custody.
- What time was it when the conversation took place? Was it the middle of the night? Or during the day? An interview at an odd hour may point to custody.
- How long did the questioning last? Longer interviews lean toward a finding of custody.
- What was the style of the interview? Were the questions accusatory or routine? An interviewer accusing the suspect of certain acts in a threatening manner may indicate a custodial situation.
- Was the suspect free to leave at the end of the conversation? A “yes” answer tends to suggest that the suspect wasn’t in custody.
Reasonable Person Standard
When considering the above questions in order to determine whether someone was in custody, most courts use what’s called a reasonable person standard. The central question, which the questions above get at, is whether a reasonable person in the same position as the suspect would have felt free to leave.
Example: A police officer contacts Matt about a burglary, and Matt agrees to meet the officer at the police station to talk about it. The officer doesn’t initially give a Miranda warning, instead telling Matt he isn’t under arrest. The officer says he thinks Matt is involved in the burglary, and tells him the police have found Matt’s fingerprints at the scene even though they really haven’t. Five minutes into the interview, Matt confesses. The officer then gives aMiranda warning, and Matt confesses again. A half hour after he entered the station, Matt leaves. The interview wasn’t custodial because Matt voluntarily went to the station, the officer told him he wasn’t under arrest, and he left at the end. (Oregon v. Mathiason, 429 U.S. 492 (1977).)
Example: Police officers who are investigating reports of child pornography appear at Bess’s job and tell her to stop working. They escort her to a conference room, where an officer tells her she isn’t under arrest and that she’ll “walk out of here when we’re done.” The officer doesn’t give a Miranda warning. He questions her for over two hours in a generally calm tone. Bess makes incriminating statements during the interview. Although the interview took a long time and Bess didn’t voluntarily walk to the conference room with the officers, she wasn’t in custody because the interview was in a familiar place, she wasn’t isolated from the outside world, and the police didn’t pressure her to confess. The conversation was consensual and not coercive. (US v. Bassignani, 575 F. 3d 879 (9th Cir. 2009).)