FERGUSON DEPARTMENT GENERAL ORDER

TITLE: Miranda Decision TOPIC: Policy and Procedure governing the administration and documentation of GENERAL ORDERS: 20.8.26 Miranda warnings DISTRIBUTION: ALL PERSONNEL ISSUE DATE: 8/20/2020 EFFECTIVE DATE: 8/20/2020

NUMBER OF PAGES: 6 CANCELLED PUBLICATIONS: GENERAL ORDER 409.00

INDEX: Interview, Miranda Constitutional Rights, Law Violators Miranda Detention, Miranda Reports, Miranda Field Interview, Miranda Rights and Waiver Form Form 002, Rights and Wavier Traffic Violators, Miranda

I. Purpose

The purpose of this General Order is to establish the procedures required to comply with an individual’s constitutional rights at the time of or prior to custodial questioning.

II. Policy Statement

It is the policy of the Ferguson Police Department (“FPD” or the “Department”) to timely advise persons of their constitutional rights to remain silent and to confer with counsel, as well as to warn them that anything they say may be used against them in court or other proceedings at the time of arrest or prior to any custodial questioning. Any waiver of these rights must be knowing, voluntary, and intelligent, and made only after a person has been read their Miranda rights and indicated that they have understood them.

III. Definitions

Interrogation: words or action on the part of an officer that are reasonably likely to result in an incriminating statement by the . Interrogation includes direct questioning about a as well as indirect questioning involving anything where the officer knows or should know that their actions are reasonably likely to result in an incriminating response by the suspect. Routine booking questions and informing the suspect of charges against them are not generally considered to be interrogation.

Juvenile: a person who has not yet reached his or her eighteenth birthday.

Limited English Proficiency: a person who does not speak English as his/her primary language and has a limited ability to read, write, speak, or understand English is considered as having Limited English Proficiency (“LEP”). LEP individuals may be competent in certain types of communication (e.g., speaking or understanding), but still be LEP for other purposes (e.g., reading or writing). Similarly, LEP designations are context-specific: an individual may possess sufficient English language skills to function in one setting, but these skills may be insufficient in other situations.

Miranda Rights: the Fifth Amendment to the U.S. Constitution protects individuals against self-incrimination. In Miranda v. , the U.S. Supreme Court held that upon arrest or prior to custodial questioning the police must inform arrested persons or that they need not answer questions and that they may have an attorney present before and during questioning. 384 U.S. 436 (1966). These requirements are known as the “Miranda Warning.”

IV. Principles

A. Officers will advise all persons taken into custody of their Miranda rights, regardless of interview or questioning, as soon as practical.

B. Officers will give Miranda warnings before questioning a person who is under arrest or otherwise in custody (i.e., custodial interview).

1. The inquiry into whether an individual is “in custody” is an objective one and depends on all of the circumstances surrounding the contact between the officer(s) and the individual, and 1

whether a reasonable person in the individual’s position would have believed that they were free to leave.

a. Factors that may make it more likely that a reasonable person would think that they are in custody include:

a. being told by an officer that they are under arrest;

b. whether strong-arm tactics or deceptive strategies were employed during questioning;

c. whether the atmosphere of the questioning was police dominated; or

d. whether the individual was placed under arrest at the termination of the questioning.

b. Factors that may make it less likely that a reasonable person would think that they are in custody include:

a. whether the individual was informed at the time of questioning that the questioning was voluntary, that the individual was free to leave or request the officers to do so, or that the individual was not considered under arrest;

b. whether the individual had unrestrained freedom of movement during questioning; or

c. whether the individual initiated contact with officers or voluntarily complied with officers’ requests to respond to questions.

2. A juvenile’s age is a consideration in determining whether the juvenile would not feel free to leave. A juvenile may be in custody for purposes of the Miranda rule when an adult in the same circumstances would not. Officers will refer to General Order 444.00 Juvenile Offenses for specific procedures governing the advisement of juveniles.

C. All individuals regardless of age, intelligence or prior police contacts have the right to be given the Miranda warning.

D. Officers will video record their administration of Miranda warnings, any waiver, and subsequent questioning on their body-worn video recorder. See General Order 20.6.10 Body-Worn Video Recorders.

V. Requirements and Procedures

A. Content of the warning

1. Officers will provide all of the following advisements to fulfill the requirement that arrested individuals or individuals subject to custodial questioning be advised of their Miranda rights:

c. “You have been arrested or detained in connection with the investigation or commission of a crime (state the crime for which the person is being arrested or detained);”

d. “You have the right to remain silent;”

e. “Anything you say can be used against you in court or other proceedings;”

f. “You have the right to talk to a lawyer for advice before you are questioned, and to have them with you during questioning;”

g. “If you cannot afford a lawyer, one will be appointed for you, free of any cost to you, before any questioning;”

h. “You can decide to exercise these rights and not answer any questions or make any statements at any time.”

2

B. Administration of the warning

1. After an officer has provided the complete Miranda warning above, the officer will ask the following additional questions before determining whether questioning may begin pursuant to a valid waiver of rights:

a. “Do you understand each of these rights I have explained to you?”

b. “Having these rights in mind, do you wish to talk to me/us now?”

2. The questioning officer shall ask the individual to verbally affirm that they understand the Miranda warning (rather than by a nod of the head, or other physical gesture).

3. If the individual makes a comment that causes the officer to believe that the individual might be requesting an attorney, officers will ask the individual to confirm, with a “yes” or “no” answer, whether they are requesting an attorney.

4. Upon advising an individual of their rights, officers must make available a telephone and phone directory and allow the individual to contact an attorney of their choosing, if necessary. An individual requesting an attorney prior to questioning must be given every opportunity to contact an attorney or if requesting a court-appointed attorney, the prosecuting attorney’s office of the concerned jurisdiction shall be notified of the request. Officers will not question an individual who has either requested the presence of an attorney or expressed a preference to remain silent.

5. Once an individual has obtained the assistance of counsel, the questioning officer will notify that attorney prior to any further questioning until final disposition of the case is made. No admission, statement, or confession can be admitted into at the trial unless the prosecution can establish that the warnings had been given and that the individual understood his rights and freely, intelligently and voluntarily waived them. In addition, any evidence obtained as a result of an inadmissible confession is also excluded from evidence (e.g., a murder weapon recovered as a result of an inadmissible confession).

C. When warnings are not required

1. General On-The-Scene Questioning

a. Officers arriving at the scene of an offense or violation can question bystanders who have not been arrested without giving them the Miranda warnings provided that those bystanders are not arrested or taken into custody.

b. An officer must give the Miranda warnings prior to further questioning when they begin to believe that an individual being questioned has committed or is committing an offense or violation.

c. If the officer receives a valid waiver consistent with this general order, only then can they proceed with questioning.

2. Public Safety Exception

a. Officers may temporarily forgo the Miranda warnings when necessary to secure their own immediate safety or the public’s safety.

b. In order for this public safety exception to apply, officers will first determine that there is an objectively reasonable need to protect the police or public from an immediate danger associated with a weapon or other harmful objects.

c. Once an officer has determined that the public safety exception applies, the officer may question a suspect without the Miranda warnings as long as the questions asked are related to the immediate danger and reasonably necessary to secure public safety.

d. Once the immediate danger ends, this exception no longer applies.

3. Questioning During Investigatory Stops/Routine Traffic Stops 3

a. A brief investigatory stop or on-the-street detention for questioning of an individual does not require the Miranda warnings until to arrest develops or until the circumstances surrounding the contact between the officer(s) and the individual would lead a reasonable person in the individual’s position to believe they are under arrest. See Section IV.B. above.

b. Brief questioning of a stopped motorist during a routine does not require Miranda warnings. If, however, an officer takes actions that would lead a reasonable person to believe they are in custody, they must administer the Miranda warnings prior to questioning.

4. Spontaneous Statements

a. No Miranda warnings are required when an individual spontaneously makes statements on their own initiative without prior questioning of any kind by police officers. However, after such a spontaneous statement has been made, the officer must issue the Miranda warnings to the individual. If the officer receives a valid waiver consistent with this general order, only then can they proceed with questioning.

5. Voluntarily Non-Custodial Statements

a. The Miranda warnings are not required when an individual voluntarily comes to the police for questioning, so long as they have not been arrested and are informed that they are free to leave at any time.

D. Waiver

1. If an individual does not fully understand his/her rights as outlined above, they cannot be questioned.

2. If at any time during the questioning the individual expressly invokes a right, asks not to be questioned further, or indicates in any manner that they do not wish to be questioned, then the questioning must cease.

3. The use of FPD Form 002 AND the BWVR footage of an interview or questioning is the preferred documentation for demonstrating that an individual was advised of his/her rights and granted a valid waiver of rights.

4. If an individual waives their rights and makes an oral or written statement, the officer should complete a FPD Form 002 and allow the individual to sign it. The individual will initial and sign in their own handwriting, in the appropriate sections, whether they understand their rights and are willing to answer questions without an attorney present. This initialing and signature will be witnessed by the interviewing officer and a second witness officer, both of whom will sign the form.

5. If the individual has been advised of their rights and indicated they wish to make a statement or answer questions but declined or refused to sign the form after indicating they have understood their rights, they may still be questioned. The officer shall write “REFUSED” in the signature block of Form 002 and initial it. The officer and second witness officer will sign the form as required in Section V.D.4 above.

6. In addition to the above, the officer should put facts into the narrative of his or her incident report from which a court could find that the individual waived his or her rights. This information should include but not be limited to what is required by Form 002.

7. If an individual has invoked his or her Miranda rights, an officer must not make any attempt to influence or encourage the individual to re-initiate interrogation.

8. If an individual initiates communication following a waiver of Miranda, the officer shall re- administer the Miranda warning before resuming any additional questioning.

9. The officer will attach a copy to the completed Form 002 to the incident report. The officer will book the original Form 002 into evidence. 4

E. Special Communications Considerations

1. A failure to protect the rights of individuals who are deaf, hard of hearing or have Limited English Proficiency (“LEP”) during and questioning presents risks to the integrity of the investigation. Officers must recognize that miscommunication during questionings may have a substantial impact on the evidence presented in any related criminal prosecution. A qualified interpreter will be used for any questioning or taking of a formal statement when an individual’s legal rights could be adversely impacted.

2. Individuals who appear to be deaf or profoundly hard of hearing

a. If an individual appears to be deaf or profoundly hard or hearing, the officer will:

i. Provide the following additional warning in writing: “If you are deaf or profoundly hard of hearing, FPD must offer you an interpreter without cost and will defer questioning pending the appearance of that interpreter.”

ii. The officer will provide the individual with a FPD Form 002 to read.

iii. Further communications AND the advisement of Miranda warnings will be given using a qualified interpreter.

b. If an individual is LEP

i. Officers should avoid assumptions about an individual’s primary language. Officers should make every effort to ascertain an individual’s primary language to ensure effective communication.

ii. Once an officer has identified a LEP person’s primary language, further communications AND Miranda warnings will be administered by a qualified interpreter (See future GO on Limited English Proficiency).

c. The officer will note the language identified or the fact the person is deaf or profoundly hard of hearing, the interpreter’s name and an affirmative statement that the Miranda warning were provided in that language on FPD Form 002 signed by the individual and in the incident report.

3. Juveniles

a. Officers will follow the procedures outlined in General Order 444.00 when administering the Miranda warnings to juveniles.

By Order of:

Jason P. Armstrong Chief of Police

Attachments: FPD Form 002

5