Phone Conversations With the Police May Not Be Protected Under Miranda

A phone conversation may not qualify as "custodial interrogation."

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Miranda v. Arizona requires the police to inform a suspect of his Miranda rights before a custodial interrogation. Custodial interrogation includes not only questioning during or after an arrest, but in a situation in which most people would conclude that they are not free to leave. (See Miranda: The Meaning of “Custodial Interrogation.”) Talking on the phone to the police may not qualify as custodial interrogation.

The Case of State v. Hernandez in New Mexico

Whether talking to the police on the phone would trigger the duty to give Miranda rights arose in New Mexico in State v. Hernandez. The defendant made a series of threatening phone calls to a home, accompanied by gunshots. The police were called. Upon arrival, an officer answered two of the phone calls that allegedly came from the shooter. The defendant’s phone number was identified by caller ID. The caller conversed with the officer, revealing his name and identifying himself as the shooter.

At trial, the defendant’s attorneys successfully suppressed his statements under Miranda v. Arizona. The appellate court found that Hernandez was not in custody, was free to stop the conversation, nor was he under interrogation.  He voluntarily initiated the phone call. He voluntarily engaged in the conversation. Throughout the call, he was free to hang up the phone.

Think Twice Before Talking on the Phone

The lesson from State v. Hernandez, at least in New Mexico, is this: Don’t make the call, don’t accept the call.  If you must make a call and you feel compelled to talk, call an attorney. As long as it's clear that your're calling in order to obtain legal advice, and you do it in circumstances that are reasonably sure to result in a private conversation, your conversation will be confidential.

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