The Narrow Reach of Miranda in Federal Cases.

No, Miranda does not apply to all federal law enforcement interviews; it applies only when an interview or interaction falls within the definition of a “custodial interrogation.” The conditions that generally trigger the requirement to provide Miranda warnings are:

• Custody, The determination of whether the individual is in custody relies on “whether a reasonable man in the suspect’s position would have understood that his freedom of action was curtailed to a significant degree.”
• Interrogation, In order to provide clarity on what constitutes the functional equivalent of an interrogation, the Supreme Court stated in Rhode Island v. Innis, 446 U.S. 291, 298 (1980), that “the focus must be on whether the police questioning or the suspect’s context is likely to elicit incriminating responses.”

If a suspect makes a statement that is not a response to express questioning or what is considered to be the functional equivalent of an interrogation, then the statement is considered to have been volunteered. As a result, such statements are admissible even if Miranda warnings were not provided.

Miranda v. Arizona, 384 U.S. 436, was decided on June 13, 1966. This decision came three years after the arrest of Ernesto Miranda in 1963. The Supreme Court issued a 5-4 decision on the case, with Chief Justice Warren writing the majority opinion.

As a general rule, Miranda only protects an individual’s statements that are testimonial in nature. Miranda protections generally do not extend to nontestimonial evidence such as:

• Fingerprints
• Handwriting exemplars
• Blood draws and other similar procedures

In Schmerber v. California, 384 U.S. 757 (1966), the Supreme Court explained that the privilege against self-incrimination does not apply to evidence “which is physical in nature.” The court held that, “The relevant fact is that the privilege protects oral and written testimony, and not real evidence.”

When Can Federal Agents Question Me Without Giving Miranda Warnings?

Routine Booking Questions

Federal agents do not need to give Miranda warnings before asking questions during routine booking procedures. According to Pennsylvania v. Muniz, 496 U.S. 582 (1990), questions asked during booking “about name, date of birth, place of birth, and current address” are exempt. The Supreme Court noted in the case that these questions are “primarily intended to facilitate the booking process,” rather than “elicit incriminating statements.”

The Three Main Exceptions to Miranda

While there are various other exceptions to Miranda, according to legal commentary, “the three most-cited exceptions are (i) public safety, (ii) routine booking, and, (iii) undercover questioning.”

Undercover Questioning of Jailed Suspects

In Illinois v. Perkins, 496 U.S. 292 (1990), the Supreme Court held that “the suspect’s response to questioning by an undercover police agent who has not informed him of his identity is not the product of custody in the traditional sense.” In the case, Undercover state agent Parisi entered the jail with the intent of inducing suspect Perkins to confess to a murder charge. The Court held that, because “the undercover agent Parisi did not intend to instill the perception that suspect Perkins was in custody,” the agent was not required to provide Miranda warnings before questioning.

Questioning of Incarcerated Individuals

In Howes v. Fields, 565 U.S. 499 (2012), the Supreme Court clarified what it takes for an incarcerated individual to be in “Miranda custody.” It stated that “the merely fact that the suspect is in prison is not, by itself, sufficient to establish custody.” The case further explained that the degree of restraints required to put a member of the general public into custody is substantially different from the degree of restraints required “to put a prisoner who is already in custody in ‘Miranda custody.’” The Supreme Court concluded that Fields’ statements were admissible even though he was not read Miranda warnings during his five-to-seven-hour questioning by two sheriff's deputies, as he was not in Miranda custody.

Testimony of Grand Jury Witnesses

In United States v. Mandujano, 425 U.S. 564 (1976), the Supreme Court heard from witnesses who testified before a grand jury. These witnesses had not been given Miranda warnings before testifying, nor had they been given the opportunity to have their attorneys present during their grand jury testimony. The Court held that “Miranda does not apply to those who testify under subpoena before a grand jury.”

IRS Criminal Investigation Interviews

The Supreme Court held in Beckwith v. United States, 425 U.S. 341 (1976) that Miranda warnings are not required for interviews that are noncustodial in nature, including for IRS criminal investigation interviews. In Beckwith, the defendant had agreed to meet with IRS investigators to discuss his failure to pay income taxes. He testified to having informed the IRS agents “from the beginning that he would refuse to make any incriminating statements,” and that “the agents told him that anything he said and any information he submitted could be used against him in a criminal proceeding.” The Supreme Court held that, because Beckwith’s interview was not “conducted under custody,” Miranda was inapplicable.

Border and Customs Inspections

Generally, interviews with U.S. Customs and Border Protection (CBP) do not involve custody. As a result, CBP officers are generally not required to read Miranda rights during routine border and customs inspections.

Miranda Applicability to Non-Citizens/Non-Immigrants

Miranda warnings apply to anyone whom federal agents question while in custody, regardless of citizenship or immigration status.”

What happens after I ask for silence or a lawyer?

Even if you invoke your right to silence or a lawyer, federal law enforcement may still be able to question you. The key is whether, and under what circumstances, law enforcement agents have lawfully overcome your invocation.

Here are a couple of examples of why this happens:

• Invoking silence does not result in permanent immunity from questioning. Law enforcement agents can question you again if they are able to satisfy certain conditions (discussed below).
• An ambiguous reference to counsel is not considered an invocation of the right to counsel.

These are just examples. Many circumstances can lead to law enforcement agents overcoming your invocation of the right to silence or a lawyer.

Invoking Silence

Invoking the right to silence offers weaker protection than invoking the right to counsel. This is an asymmetry that most suspects do not grasp, and even some veteran defense lawyers, either due to a lack of understanding or simply not understanding it. The Supreme Court had the chance to clarify the invocation of silence in Berghuis v. Thompkins, 560 U.S. 370 (2010). The majority noted:

“While the court of appeals believed that ‘Miranda warnings are essentially pointless’ if they only apply when a suspect tells the authorities that he wants to remain silent, it is the suspect who must explicitly tell the authorities he wants to remain silent.”

In the case, after nearly three hours of near-total silence, Thompkins answered “yes” when a detective asked whether he prayed to God to forgive him for shooting the victim The Court held that Thompkins’ failure to affirmatively and unequivocally invoke his right to silence meant that the interrogation was lawful, and his answer was admissible even though he had been read Miranda warnings.

Invoking the Right to Counsel

While an ambiguous reference to counsel may not be enough to constitute an invocation of the right to counsel, an unequivocal request for counsel is something that law enforcement agents cannot ignore. In Davis v. United States, 512 U.S. 452 (1994), a suspect who was being questioned by agents said, “Maybe I should talk to a lawyer.” The Court held that the phrase was not a sufficiently unequivocal expression of the desire to have counsel present, as it “is a suggestion, but not an expression of his will.” The Court further stated that “Davis does not require agents to clarify an ambiguous reference to counsel,” but only that they “respect those who have clearly stated the desire for legal counsel.”

However, once a suspect has made an unequivocal request for legal counsel, law enforcement agents cannot re-initiate contact with the suspect. This is what was decided in Edwards v. Arizona, 451 U.S. 477 (1981), which stated:

“The effect of the suspect’s request for a lawyer, when the suspect has been provided Miranda warnings, is to call a halt to the interrogation immediately. The second effect is that police may not re-initiate contact unless the suspect himself or his counsel decides to initiate further communication.”

The Court noted that “Edwards is not intended to shield a suspect from questioning for all future offenses,” as state police in Michigan v. Mosley, 423 U.S. 96 (1975), were able to question a suspect in jail about a different crime more than two hours after questioning him about another offense, after giving him a fresh set of Miranda warnings.

The Supreme Court clarified when law enforcement could re-initiate contact after the suspect’s request for counsel in Maryland v. Shatzer, 559 U.S. 98 (2010), holding that “a break in custody of at least 14 days is sufficient to allow law enforcement to re-interrogate the suspect lawfully, provided that a new set of Miranda warnings is given.”

Todd Spodek and the attorneys at Spodek Law Group handle federal cases of this kind from New York, Brooklyn, Queens and Los Angeles.

Can Delayed Federal Presentment Suppress a Properly Mirandized Confession?

In 1968, Congress passed 18 U.S.C. § 3501 with the intent of replacing the “Miranda test” for voluntariness with a “voluntariness test” in federal criminal cases. However, the majority of the statute was later struck down, when the Supreme Court determined that “the warnings of Miranda v. Arizona, are a constitutional right.” As a result, confessions to federal law enforcement are generally deemed inadmissible if they are not obtained through custodial interrogations in which the proper Miranda procedures were followed.

Despite the majority of the statute being unconstitutional, the Supreme Court decided to preserve 18 U.S.C. § 3501(c) in Corley v. United States, 556 U.S. 303 (2009). According to 18 U.S.C. § 3501(c), “any confession made within six hours of the suspect’s federal arrest is admissible as long as it does not constitute an involuntary confession.” In the case, an agent interrogated the suspect during what should have been his presentment in front of a magistrate judge. The Supreme Court vacated the judgment and remanded the case so that the lower court could determine whether Corley's confession fell within the six-hour window and, if it did not, whether the delay in presentment was reasonable. But the Court clarified that it is not necessarily “per se” unlawful to delay presentment after six hours, as, “the relevant question is whether the delaying agents have provided a reasonable justification for delaying presentment to a magistrate, and the federal authorities are entitled to some leeway in making this determination.”

The Supreme Court also clarified in Corley, “[that] absent any showing of either a proper excuse for the delay in presentment to a magistrate, or an unusual justification for the delay in presentment to the United States attorney, presentment of a defendant more than six hours after the arrest will render any statement made inadmissible.”

According to Federal Rule of Criminal Procedure 5(a) and 18 U.S.C. § 3491, any individual arrested under a warrant, or arrested in a custodial arrest, is required to be “brought without unnecessary delay before a magistrate judge.” This includes:

• A suspect who has been arrested by the United States
• A suspect who is subject to the jurisdiction of the United States
• A suspect arrested for any offense committed in the United States
• A suspect arrested by the FBI
• A suspect arrested by the DEA
• A suspect arrested by the IRS Criminal Investigation Division

In short, if you have been arrested by federal agents, then you must be brought before a magistrate judge without unnecessary delay.

Does Proper Administration of Miranda Cure an Unlawful Delay in Presentment?

No, Miranda compliance does not cure an unlawful delay in presentment. For a confession to be admissible in a federal criminal case, it must be obtained after a lawful presentment to a magistrate judge. If a confession is obtained without either proper federal presentment or a lawfully prolonged delay in presentment, then a confession may be admissible only if it does not constitute “fruit of the poisonous tree” under the exceptions and restrictions established in United States v. Patane, 542 U.S. 630 (2004).

How and when do I seek suppression in federal court?

When is the Motion to Suppress Filed?

Under Rule 12(b)(3)(C) of the Federal Rules of Criminal Procedure, a defendant’s motion to suppress must be filed “before the trial on the merits.” Rule 12(c)(3) states that if a defendant fails to file the motion before the trial, it is deemed a waiver “unless the defendant can demonstrate good cause.”

Who Decides the Motion to Suppress?

District judges decide all issues related to motions to suppress. Juries are never involved.

What is the Burden for Law Enforcement to Show You Waived Your Rights?

The government’s burden of showing that a suspect knowingly and voluntarily waived his Miranda rights is a preponderance of the evidence (Colorado v. Connelly, 479 U.S. 157 (1986)).

Which Law Controls a Motion to Suppress?

Federal law, not state criminal-procedure laws, controls a motion to suppress a suspect’s confession to federal law enforcement.

What is the Justice Department’s Policy on Recording Custodial Interviews?

On July 11, 2014, the Justice Department’s policy on recording federal custodial interviews took effect. The policy establishes a presumption that federal agents from the FBI, DEA, ATF, and U.S. Marshals Service must record any custodial interviews they conduct after a suspect is arrested.

When Did the Justice Department Expand the Recording Policy?

In 2020, the Justice Department expanded the scope of the recording presumption to cover certain federal law enforcement interviews conducted before an arrest.

What Does a Miranda Violation Actually Suppress in Federal Court?

Does a Miranda Violation Render the Suspect’s Statement “Involuntary” Under the Fifth Amendment?

No. While a suspect’s statement cannot be entered into evidence unless Miranda warnings were administered and waived, this does not mean the statement is involuntary. In Colorado v. Connelly, 479 U.S. 157 (1986), the Supreme Court noted, “Even if a suspect is mentally ill, he is not involuntary unless his illness is exploited by the state, such as through coercion. Miranda violations do not equal involuntary confessions.”

Does a Miranda Violation Result in the Exclusion of Any Physical Evidence Found Due to the Unwarned Statement?

No. In United States v. Patane, 547 U.S. 313 (2004), the government found physical evidence using a statement the defendant made to federal agents while the agents obtained a valid search warrant. Although agents failed to give Miranda warnings, the statement was voluntary. The Court held, “the protection afforded to suspects by Miranda does not extend to physical evidence found as a result of a voluntary but unwarned statement.”

Does a Miranda Violation Prevent Law Enforcement From Using the Unwarned Statement to Impeach a Suspect?

No. In Harris v. New York, 401 U.S. 222 (1971), the Supreme Court held that statements obtained in violation of Miranda could still be used to impeach a defendant’s testimony at trial. The Court stated, “a defendant’s unwarned statement obtained through a Miranda violation may be used to impeach his testimony, though it may not be entered into evidence in the government’s case-in-chief.” This means that while the government cannot introduce the statement in its case-in-chief, it may introduce the statement to impeach a defendant who testifies.

Does a Miranda Violation Result in the Exclusion of the Statement from Every Part of the Proceedings?

No, a Miranda violation only results in the exclusion of a suspect’s statement from the government’s “case-in-chief.” It can still be used for impeachment or in rebuttal.

Is it Acceptable for Law Enforcement to Repeat Interrogation after a Suspect was Read Miranda Rights?

Yes. In Oregon v. Elstad, 470 U.S. 298 (1985), the Supreme Court said a properly warned confession was admissible even though the suspect made an earlier unwarned admission. “A statement is only suppressed if it was obtained by ‘interrogation’ during ‘custody,’ but we’ve found no reason to suspect Miranda requires any more than a single warning provided once a person is informed of his rights.”

In Missouri v. Seibert, 542 U.S. 577 (2004), the Supreme Court struck down a “question-first, warn-later” tactic. In this case, law enforcement officers deliberately obtained a statement before Miranda warnings were given. The Court found that the officers had attempted to circumvent the Miranda requirements.

Are Charges Dismissed if the Suspect’s Statement is Suppressed?

Not always. While the only evidence of guilt may have been obtained from the statement, charges are only dismissed when the statement has a “corroborating fact that would be sufficient, independent of the confession, to establish a conviction.”

Does the “Fruit of the Poisonous Tree” Doctrine Extend Miranda Violations to Evidence Derived from the Statement?

No, as the Supreme Court stated in United States v. Patane, 547 U.S. 313 (2004), “the protections established in Miranda are statutory in nature, not constitutional.”

Talk to Spodek Law Group

Every case turns on its own facts, and general information is no substitute for advice about yours. Todd Spodek, managing partner of Spodek Law Group, and the firm's attorneys defend federal criminal and white collar matters nationwide. Reach the firm at 212-300-5196.