Phone Conversations With the Police May Not Be Protected Under Miranda

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

Miranda v. Arizona requires the police to inform a suspect of his Miranda rights before a custodial interrogation. (384 U.S. 436 (1966).) Custodial interrogation includes not only questioning during or after an arrest, but also 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 often won't qualify as custodial interrogation.

When a Suspect Calls—and an Officer Answers

Whether talking to the police on the phone would trigger the duty to give Miranda warnings arose under an interesting set of facts in New Mexico's State v. Hernandez. (147 N.M. 1 (2009).) Threatening phone calls were made to a home, and gunshots were fired at it multiple times. 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. (He revealed that information before the officer revealed that he was, in fact, an officer.)

At trial, the defendant’s attorneys got his statements suppressed under Miranda. But the appellate court disagreed with the trial judge's ruling, relying heavily on the fact that the defendant had not been in custody during the calls. The court noted, in part, that the defendant had voluntarily initiated the calls, was free to stop the conversations, and wasn't restricted in his freedom of movement while on 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 you're calling in order to obtain legal advice, and you talk under circumstances that are reasonably sure to result in a private conversation, your conversation will be confidential. (See our article on the attorney-client privilege.)

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