Vol. 15 No. 6- Questioning “Outside” Miranda

June 30, 2000

To: All Police Chiefs and Sheriffs

From: Martin J. Mayer


On November 17, 1999, this office issued a Client Alert Memorandum regarding a decision by the United States Court of Appeal (9th Circuit) entitled California Attorneys for Criminal Justice, et al. v. Butts, et al. In that case, the 9th Circuit ruled that police violate a suspect’s 5th Amendment right against self-incrimination when they continue to interrogate the suspect after the individual has invoked his or her Miranda rights. The Court further ruled that officers could be held individually liable for such violations even if they were trained to proceed in that fashion and were following Departmental policy.

We included along with the Client Alert Memorandum a draft notice to provide to all law enforcement personnel informing them of the court’s decision and the need to terminate any questioning of a custodial suspect after he or she expresses, in any fashion, the desire to remain silent and/or to talk with an attorney. The Butts case concerned two separate matters involving Santa Monica PD and Los Angeles PD which were combined for purposes of appeal. This office, both through the Client Alert Memorandum as well as training seminars, continued to express concern over the holding of the case, since it appeared to be unfair as to the liability of the individual officers, but also urged that all peace officers cease interrogations upon the invocation of Miranda. We also pointed out the United States Supreme Court would be ruling shortly on a case entitled Dickerson v. The United States which would settle the issue of whether or not Miranda warnings were a constitutional right and must therefore continue to be provided prior to questioning suspects in custody. Santa Monica and Los Angeles also petitioned the United States Supreme Court to review the 9th Circuit decision in Butts in an effort to have it set aside.

On June 26, 2000, the United States Supreme Court reaffirmed the requirements of Miranda and refused to review the decision in the Butts case. In a 7 to 2 decision, the U.S. Supreme Court definitively ended the debate over the legality of Miranda warnings. The Court stated that “we conclude that Miranda amounts to a constitutional rule that Congress may not supercede legislatively.” The Court went on to state that the required warnings must be given before “custodial interrogation” begins and questioning must stop when a suspect invokes his or her right to silence or requests the presence of legal counsel.

Despite good faith differences of opinion, the issue is now settled – police are not permitted to continue questioning suspects who invoke their 5th amendment rights without facing potential personal liability, as well as the inadmissibility of any statements which might be elicited thereafter.

By rejecting the request to review the Butts case, the Court has left in place the potential liability facing the officers in those particular matters. The 9th Circuit had ruled that, despite the fact that the officers were following POST certified training and despite the fact that there were cases which seemed to permit the practice, the officers “should” have known better and therefore were denied qualified immunity from civil liability.

It is now, more than ever, imperative that law enforcement agencies notify their officers of these actions by the United States Supreme Court and advise them once again that Miranda warnings shall be given to custodial suspects prior to interrogation and all questioning shall cease when Miranda rights are invoked in any fashion, and at any time prior to or during the interrogation.

As always, we urge that you confer with your Department’s legal counsel prior to implementing or changing any policy based upon legal decisions of the courts. In this case, it might also be appropriate to secure advice and counsel from the county District Attorney. Should you have any questions regarding the above memorandum or wish to discuss it in greater detail, please do not hesitate to contact our office at (562) 590-8280.



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