MIRANDA WARNING NEEDED DURING "NON CUSTODIAL" INTERVIEWS?
United States v. Cavazos
by Brian S. Batterton, Attorney
©2012 Brian S. Batterton, Attorney, PATC Legal & Liability Risk Management Institute (www.llrmi.com)
It is well known that police must provide suspects with Miranda warnings for custodial questioning. Further, before questioning, the suspect must waive his Fifth Amendment rights after the warnings are given. However, sometimes, the specific circumstances of an interview or interrogation provide some ambiguity as to whether an interview is “custodial” or “non-custodial” for the purposes of Miranda. Recently, the Fifth Circuit Court of Appeals decided United States v. Cavazos [i] which offers police some guidance regarding whether or not an interview will be considered “non-custodial” when conducted in the suspect’s residence. The facts of Cavazos are as follows:
On September 1, 2010, between 5:30 a.m. and 6:00 a.m., Cavazos woke to banging on his door and the shining of flashlights through his window. U.S. Immigration and Custom Enforcement ("ICE") Agents, assisted by U.S. Marshals, Texas Department of Public Safety personnel, and Crane Sheriff's Department personnel, were executing a search warrant on Cavazos's home. The warrant was issued on the belief that Cavazos had been texting sexually explicit material to a minor female. After Cavazos's wife answered the door, approximately fourteen law enforcement personnel entered Cavazos's residence.
Immediately upon entering, government agents ran into Cavazos's bedroom, identified him, and handcuffed him as he was stepping out of bed. Agents then let Cavazos put on pants before taking him to his kitchen. Cavazos's wife and children were taken to the living room. Cavazos remained handcuffed in the kitchen, away from his family, while the entry team cleared and secured the home. ICE Agents Le Andrew Mitchell and Eric Tarango then uncuffed Cavazos and sat with him in the kitchen for approximately five minutes while other officers secured the home.
Once the house was secured, agent Tarango asked Cavazos if there was a private room in which they could speak. Cavazos suggested his son's bedroom. In the bedroom, Cavazos sat on the bed while the two agents sat in two chairs facing him. The agents asked Cavazos if he wanted the door open, but Cavazos said to keep the door closed. Agents Mitchell and Tarango informed Cavazos that this was a "non-custodial interview," that he was free to get something to eat or drink during it, and that he was free to use the bathroom. The agents then began questioning Cavazos without reading him his Miranda rights.
About five minutes into the initial interrogation, Cavazos asked to use the restroom. Agents then searched the restroom for sharp objects and inculpatory evidence. Once cleared, they allowed Cavazos to use the bathroom, but one agent remained outside the door, which was left slightly open so the agent could observe Cavazos. Once finished, Cavazos, followed by an agent, went to the kitchen to wash his hands, as the restroom's sink was broken. Cavazos then returned to his son's bedroom, and the interrogation resumed.
After Cavazos returned to the bedroom, officers interrupted the interrogation several times to obtain clothing to dress Cavazos's children. The officer would ask Cavazos for an article of clothing, which Cavazos would retrieve from the drawers and hand to the officer. Agents Mitchell and Tarango would then continue the questioning.
At some point during the interrogation, Cavazos asked to speak with his brother, who was his supervisor at work. The agents brought Cavazos a phone and allowed him to make the call, instructing Cavazos to hold the phone so that the agents could hear the conversation. Cavazos told his brother that he would be late for work.
Finally, the agents asked Cavazos if he had been "sexting" the victim. Cavazos allegedly admitted that he had, and also described communications with other minor females. After the interrogation was over, Cavazos agreed to write a statement for the agents in his kitchen. While Cavazos began writing the statement, an agent stood in the doorway and watched him.
Cavazos wrote his statement for approximately five minutes before agents Mitchell and Tarango interrupted him. At that point the agents formally arrested Cavazos and read him his Miranda rights. From beginning to end, the interrogation of Cavazos lasted for more than one hour, and the agents' conduct was always amiable and non-threatening. Subsequently, Cavazos was indicted for coercion and enticement of a child, and for transferring obscene material to a minor. [ii]
Cavazos filed a motion to suppress the statements that he made prior to receiving his Miranda warnings. The district court granted the motion to suppress and the government appealed.
The Fifth Circuit first summarized the law on this topic as follows:
"Miranda warnings must be administered prior to 'custodial interrogation.'" United States v. Bengivenga, 845 F.2d 593, 595 (5th Cir. 1988) (quoting Miranda v. Arizona, 384 U.S. 436, 479, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)). "A suspect is . . . 'in custody' for Miranda purposes when placed under formal arrest or when a reasonable person in the suspect's position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest." Id. at 596. "Two discrete inquires are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was at liberty to terminate the interrogation and leave." J. D. B. v. North Carolina, 131 S. Ct. 2394, 2402, 180 L. Ed. 2d 310 (2011). "The reasonable person through whom we view 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." Bengivenga, 845 F.2d at 596. [iii] [emphasis added]
Thus, the determination of whether a person is “in-custody” for Miranda purposes relies on the totality of the circumstance and does not consider the subjective (personal) views of the officer or the person being questioned. [iv]
The Fifth Circuit then looked at the relevant facts in this case. The incident began with Cavazos being awakened by officers banging at his door. His wife let the officers in and they handcuffed Cavazos while about fourteen officers searched his home. He was then un-handcuffed and told that his interview was “non-custodial.” He was then separated from his family and questioned by law enforcement agents for about an hour in his home. During the questioning, he was then told that he was free to use the bathroom or get a snack but he was closely followed and monitored by officers as he did so. He was also told that he could telephone his brother but the agent made him hold his phone such that they could monitor his call.
The government argued several reasons that the court should hold that the questioning was “non-custodial” and no Miranda was required. First, they argued that the questioning took place in his home. The court stated that while this may often weigh in favor of an interview being non-custodial, in this case, officers made non-consensual entry into Cavazos home, handcuffed him, searched his home, and then closely monitored his movement inside his home. The court also considered case law from the First and Ninth Circuits that have held that in-home interviews under similar circumstances were held to be “custodial” for the purposes of Miranda. [v]
Second, the government argued that Cavazos was allowed to speak with his brother on the phone. However, the court noted that the conversation was monitored by the police which would indicate to a reasonable person that the police had sufficient control over a person to restrict their privacy. Third, the court considered the fact that the police immediately handcuffed Cavazos when they encountered him and searched his home. They found that this would indicate that the police had control or dominion over Cavazos in spite of the fact that the police later un-handcuffed him. Lastly, the government asserted that the fact that agents told Cavazos that the interview was “non-custodial” should negate the need for Miranda. To this, the court stated:
Such statements, while clearly relevant to a Miranda analysis, are not a "talismanic factor." They must be analyzed for their effect on a reasonable person's perception, and weighed against opposing facts. Here, several facts act to weaken the agents' statement such that it does not tip the scales of the analysis. First, to a reasonable lay person, the statement that an interview is "non-custodial" is not the equivalent of an assurance that he could "terminate the interrogation and leave." Second, uttered in Cavazos's home, the statement would not have the same comforting effect as if the agents had offered to "leave at any time upon request." This is not to say that a statement by police to a defendant that an interrogation is "non-custodial" does not inform our decision as to the necessity of a Miranda warning when an interrogation is conducted inside the home. Instead, we recognize the "totality of circumstances" Miranda commands, and we note that statements made in different circumstances will have different meanings and differently affect the coercive element against which Miranda seeks to protect. [vi] [internal citations omitted]
The court then held that, while no single factor in this case is in itself determinative, based upon the totality of the circumstances, a reasonable person in Cavazos position would have believed that he or she was not at liberty to terminate the interview and leave. As such, the interview was custodial and Miranda was required.
The Fifth Circuit therefore affirmed the decision of the district court granting the motion to suppress.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] No. 11-50094, 2012 U.S. App. LEXIS 1103 (5th Circuit Decided January 19, 2012)
[ii] Id. at 1-5
[iii] Id. at 6
[iv] Id. at 7
[v] Id. at 9 (See United States v. Craighead, 539 F.3d 1073, 1085 (9th Cir. 2008) (suppressing statements made during in-home interrogation where home was "a police-dominated atmosphere"); United States v. Mittel-Carey, 493 F.3d 36, 40 (1st Cir. 2007) (finding in-home interrogation custodial where, inter alia, search conducted early in the morning by eight officers, and officers exercised physical control over defendant)
[vi] Id. at 11-12