Miranda Flashcards
In my view, any ruling we make about adoptive admissions will interact with our ruling about Miranda right? Because the question will be, is he in custody at the moment he makes the admission. So if we say he admitted it just by carrying it around the border region, then the admission occurred long before he was ever taken into custody.
• I think that would be a factual finding that, at a minimum, would require remand. The magistrate judge found that an adoptive admission occurred in the interaction with the border patrol agent. Whether an adoptive admission also happened prior to that would be a factual matter to be worked out in district court, not to be resolved for the first time on appeal.
Ok, but say I disagree with you. You’d have to concede that if he adopted the admission just by walking around the border region, there would be no Miranda violation.
• I’m not comfortable conceding that without the opportunity to brief it.
• [Maybe I can rely on standard of review, didn’t make that factual finding, something like this.]
• [Could it possibly also interact with our inability to view the passport? If it’s fake or fraudulent, maybe he just used it to travel but not to identify himself.]
Isn’t this just our standard issue Miranda case that we’ve heard a million times? Haven’t we held again and again and again that this kind of brief immigration questioning does not require Miranda warnings?
• No, your honor, because in none of those cases has there been a formal arrest. And it is unambiguous in the case law that when there is a formal arrest, Miranda warnings must be issued, regardless of the other facts and circumstances. We know that this applies to “field statements”/Terry stops because of Berkemer v. McCarty, 468 U.S. 420 (1984), the case on which this Court based its border stop jurisprudence. The encounter began with noncustodial “roadside questioning.” Berkemer, 468 U.S. at 435. But once the defendant “was formally placed under arrest and instructed to get into the police car,” there was “no question that [he] was ‘in custody’”—even though he remained in the field. Id. at 434. “Because he was not informed of his constitutional rights at that juncture, [his] subsequent admissions” were suppressed. Id. at 434–35.
But this stop doesn’t have any of the indicia of an arrest that we’ve relied on for years. We’ve allowed for brief handcuffing, we’ve said it’s ok to put the person in a police vehicle, and there’s nothing else extraordinary, like a drawing of guns, that would distinguish this case
• Those factors are not relevant where, as here, there has been a formal arrest. A suspect can be in custody in one of two ways: “either as part of a ‘formal arrest’ or as part of a less formal ‘restraint on freedom of movement of the degree associated with a formal arrest.’” United States v. Coutchavlis, 260 F.3d 1149, 1157 (9th Cir. 2001). And we’ve also seen this applied in Berkemer, the Supreme Court’s leading case on field statements. Before the defendant’s formal arrest, the Supreme Court used the totality-of-the-circumstances approach to assess whether questioning was custodial. But once the defendant “was formally placed under arrest and instructed to get into the police car,” there was “no question that [he] was ‘in custody.’” Id. at 434.
Our case law instructs us to look at “the language used by the officer to summon the individual, the extent to which he or she is confronted with evidence of guilt, the physical surroundings of the interrogation, the duration of the detention[,] and the degree of pressure applied to detain the individual.” Which of those factors indicate custody to you?
Importantly, those factors only apply to the informal custody inquiry. Here, there’s no need to employ those factors, because Mr. Singh was actually formally arrested, and that is sufficient–no matter other facts and circumstances–to find custody.
• I’ll also note that even when that informal inquiry does apply, those factors aren’t exhaustive or necessary for custody. This Court has pointed out that But “[o]ther factors may also be pertinent to, and even dispositive of” custody. United States v. Kim, 292 F.3d 969, 974 (9th Cir. 2002). I think the biggest fact here is that after trying and failing to talk to Mr. Singh, the agent brougth him over to a caged transport vehicle–not an ordinary police car but essentially a paddy wagon; sat him inside of it with other people caught at the border; started collecting personal property from the detainees; and began filling out paperwork. Given the language barrier and the transport vehicle, it is unlikely Mr. Singh thought he was just there for brief questioning.
Isn’t your argument just that by putting him in the truck, he was arrested? I thought we’d rejected that argument a million times
First and foremost, Mr. Singh was in custody because he was under formal arrest. And a formal arrest is sufficient for custody no matter the other facts and circumstances. And the government doesn’t dispute that as a legal matter, the government just denies that magistrate judge actually found that Mr. Singh was under arrest.
• If your honors do get to the informal inquiry, though, then I would distinguish what happened here from this Court’s cases about putting a defendant in an ordinary police vehicle. Officers use their ordinary police cars for their regular patrols, leaving open the possibility that they will soon release the suspect and go about their duties. But when an officer calls up a van with a separate, caged compartment specifically designed for transport—essentially, a paddy wagon—most people placed in that compartment would think they were destined for the police station. Courts have agreed when faced with caged border patrol vehicles. If these suspects “somehow did not think they were in custody” before, they “certainly would. . . when greeted by a caged transport vehicle.” United States v. Barron-Garcia, No. CR 09-02814-TUC-DCB, 2010 WL 4269573, at *4 (D. Ariz. Sept. 23, 2010),report and recommendation adopted, No. CR 09-2814-TUC-DCB, 2010 WL 4269572 (D. Ariz. Oct. 26, 2010);
Didn’t it make tons of sense here to handcuff him and put him in the truck, given that there were several suspects, some had run away, it was nighttime, and your client had himself hid in the bushes?
First and foremost, Mr. Singh was in custody because he was under formal arrest. And a formal arrest is sufficient for custody no matter the other facts and circumstances. So, this Court doesn’t even have to get into this more informal inquiry about was it appropirate to handcuff him and was it overly coercive to put him in the truck, no, none of that matters. If Mr. Singh was formally arrested, he was in custody, full stop. The government isnt’ disputing that. Rather, the government is saying that when the magistrate judge found that Mr. Singh was under arrest, she didn’t mean it.
• There are a couple of distinguishing features here compared to Gallindo-Gallegos. First, in that case, the agent-to-suspect ratio was 2 to 20. Here, it was four-to-six, a much more even match. Also, Mr. Singh complied with all border patrol instructions.
How about the fact that Mr. Singh was not isolated but was with others? Doesn’t that relieve the pressure of custodial interrogation?
First and foremost, Mr. Singh was in custody because he was under formal arrest. And a formal arrest is sufficient for custody no matter the other facts and circumstances. So, this Court doesn’t even have to get into this more informal inquiry about was it appropirate to handcuff him and was it overly coercive to put him in the truck, no, none of that matters. If Mr. Singh was formally arrested, he was in custody, full stop. The government isnt’ disputing that. Rather, the government is saying that when the magistrate judge found that Mr. Singh was under arrest, she didn’t mean it.
• It also cuts in our favor because it’s pretty clear that he’s being placed together with a bunch of other suspects in a transport vehicle. Looks more like they’re getting transferred to the station v. just for questioning.
Well, it’s not just about whether Mr. Singh was free to go, right? You’re never free to go in a Terry stop.
Absolutely. The question is not, “Was Mr. Singh free to go?” The question is, “Was Mr. Singh under arrest?” And the magistrate judge clearly found that he was, and the record admits no other conclusion.
Wasn’t this a really brief period of questioning, begun soon after Mr. Singh was caught?
First and foremost, Mr. Singh was in custody because he was under formal arrest. And a formal arrest is sufficient for custody no matter the other facts and circumstances. So, this Court doesn’t even have to get into this more informal inquiry about was it appropirate to handcuff him and was it overly coercive to put him in the truck, no, none of that matters. If Mr. Singh was formally arrested, he was in custody, full stop. The government isnt’ disputing that. Rather, the government is saying that when the magistrate judge found that Mr. Singh was under arrest, she didn’t mean i
I see that you cited to these district court cases about caged border patrol vehicles. But didn’t those take place either with hours-long delays or before any questioning had occurred?
First and foremost, Mr. Singh was in custody because he was under formal arrest. And a formal arrest is sufficient for custody no matter the other facts and circumstances. So, this Court doesn’t even have to get into this more informal inquiry about was it appropriate to handcuff him and was it overly coercive to put him in the truck, no, none of that matters. If Mr. Singh was formally arrested, he was in custody, full stop. The government isnt’ disputing that. Rather, the government is saying that when the magistrate judge found that Mr. Singh was under arrest, she didn’t mean it.
• Despite these factual distinctions, the point remains that both cases considered the caged border patrol vehicle to weigh heavy in favor of custody. As one of the courts put it, If these suspects “somehow did not think they were in custody” before, they “certainly would. . . when greeted by a caged transport vehicle.” United States v. Barron-Garcia, No. CR 09-02814-TUC-DCB, 2010 WL 4269573, at *4 (D. Ariz. Sept. 23, 2010),report and recommendation adopted, No. CR 09-2814-TUC-DCB, 2010 WL 4269572 (D. Ariz. Oct. 26, 2010). And that’s what we have here: a “cell on wheels” in the back of a border patrol van.
(Barron-Garcia is very similar factually. The only difference is that he was first questioned in the field and gave incriminating answers. But as Butler holds, custody doesn’t turn on whether the officers had probable cause. And anyway, the agent did try to communicate with Mr Singh and failed. That too would lead a reasonable person to think that they were not being held for brief questioning, as little meaningful “questioning” could occur absent a translator.)
Aren’t citizenship questions exactly the kind of thing you might ask during a Terry stop? Didn’t they have a duty to confirm or dispel their suspicion, lest they arrest an innocent man?
As the Supreme Court explained in Stansbury, those kinds of considerations aren’t pertinent to the custody analysis. It’s not about the officers’ suspicions or whether they’re asking appropriate questions or “whether . . . probable cause to arrest had yet been developed.” United States v. Butler, 249 F.3d 1094, 1096, 1099–1100 (9th Cir. 2001). It’s about whether the individual is under formal arrest or a restraint equivalent to a formal arrest.
Didn’t the agent contradict himself on arrest? At one time, he says he didn’t “place the defendant under arrest” ER-118. At another time, he said Mr. Singh was under arrest.
No, your honor, his testimony was consistent. He testified that though he “did not personally place Mr. Singh under arrest,” Mr. Singh “was under arrest when he was in the van.” ER-119-120. Unless he contradicted himself within seconds, he must have meant that his colleague–Agent Barron–“personally” arrested Mr. Singh, such that Mr. Singh was already “under arrest” by the time he was seated in the van. The pertinent question is not who arrseted him but whether he was under arrest at the relevant time. And on that the testimony is clear:
Q. But he was under arrest when he was in the van?
A. Yes.
Does any of this even matter? Standsbury squarely holds that “[t]he inquiry focuses on the objective circumstances of the interrogation, not the subjective views of the officers or the individual being questioned
That’s correct, you honor. But a formal arrest is an objective fact. Federal law gives border patrol the power to arrest people. And so there’s nothing subjective about the agent testifying, “We exercised that power and arrested Mr. Singh.” Additionally, the agent testified that he was actively filling out a “field processing form.” He testified that a field processing form is a “record of an arrest,” that it asks for “the area where someone was arrested,” “other people involved in the arrest,” “what technology assisted in the arrest,” and “manner of arrest.” ER-99-100. And the exchange took place after Mr. Singh was handcuffed, moved, and placed with other suspects in a “cell on wheels,” ER-97–98, all expected accompaniments to a formal arrest. See United States v. Burton, 441 F.3d 509, 512 (7th Cir. 2006) (identifying being “handcuffed” and “trundled into a paddy wagon” as parts of a “traditional arrest”). In short, if officers do not objectively formally arrest a person by handcuffing them, bringing them to a caged transport vehicle, filling out arrest paperwork, and testifying that they were arrested, it is hard to imagine what a “formal arrest” would be.
Should we really take the magistrate judge’s use of the word “arrest” seriously? She was obviously thinking about our line of case law about “field statements,” which are noncustodial. (The judge clarified that the passport was “admissible” under “the law governing field statements” and that Singh was only “in custody in the sense that he wasn’t free to leave[,] just like with any field statements.” Id.)
No, your honor. This Court assumes judges mean what they say, that that inference is especially strong here, because the magistrate judge made three arrest findings across three different contexts. First, she found–at the government’s urging–that obtaining Mr. Singh’s documents was a search incident to arrest, specifically, that it was “seized pursuant to an arrest.” ER-111. Second, she found that in the van, Agent Fulton was seeking immigration information from “the individuals who had been arrested,” and Mr. Singh complied. ER-112. And third, in rejecting the Miranda challenge, she claimed that agents can ask citizenship questions to “someone who is arrested right at the border.” ER-112. So, in light of these repeated arrest findings, it is implausible that she did not mean what she said.
• Her use of the words “field statements” are not to the contrary, because “field statements” are not inherently noncustodial. They are simply statements made in the field. We know from the leading Supreme Court case Berkemer that they can be custodial or noncustodial, depending on whether the person is formally arrested in the field or subjected to a restraint equivilent to an arrest. In Bekermer, the Supreme Court found that the defendant made some noncustodial field statements. But later on, he was placed under formal arrest. After that, his remaining field statements were custodial, and therefore, the Supreme Court suppressed those field statements.
The magistrate judge erred not on the facts but on the law. She thought that all field statements could be taken without Miranda warnings, even following arrest.
