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10 0 9 6 8 -1 0 0 9 6 9~ U.S. Department of Justice National Institute of Justice This document has been reproduced exactly as received from the person or organlzalion originating it POints of view or opInions stated In this document are those of the authors and do not necessarily represent the official POSition or POlicies of the National Institute of Justice

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to the Nalionat Criminal Justice Reference Service (NCJRS)

Further reproduclion outside of the NCJRS system reqUires permiS­ sion of the c01Jlztt9/;jt owner CDA '\,.. February 1986, Volume 55, Number 2

1 Operation SPECDA: School Program' to Educate and Control Drug Abuse By Wilhelmina E. Holliday C\ ~ 5 IEvaluation-A Tool for Management \ ~p LBY Richard C. Sonnichsen and Gustave A. Schick 11 Training Doesn't Have To Be Expensive To Be Good By James M. Bradley

1fi~[i'@@[i'UiJi)@ 15 Reducing Airborne Lead Exposures in Indoor Firing Ranges By Steven A. Lee

@~@[i'@11~@l1i)@ 19 Use of Police Auxiliary Officers in Crowd Control Situations By Frank Woodward V\ Itnterrogation: Post Miranda Refinements i)~\J l~Part 1) \ \} By Jeffrey Higginbotham ~ 31 Wanted by the FBI ~~ eJ ~l~.

~ mm ~~~ .~ ~\li1 ~'J'~ \~!U I&;~il ~~ ~It~~~ The Cover: I.II!I.~!I~!!!!!!~!!!!!!~~~~!!!!!!!!!!!!~!!!~!!!!!!~ Operation SPECDA Is designed to assist young I-tli people in resisting the temptation to use drugs, See article p,1 Law Enforcement Bulletin

United States Department of Justice Published by the Office of Federal Bureau of Investigation Congressional and Public Affairs, Washington, DC 20535 William M, Baker, Assistant Director

Editor-Thomas J, Deakin William H. Webster, Director Assistant Editor-Kathryn E, Sulewski Art Director-Kevin J, Mulholland The Attorney General has determined that the publication of this periodical Is necessary in the Production Manager-Marlelhia S, Black transaction of the public business required by law Reprints- Robert 0, Wible of the Department of Justice, Use of funds for printing this periodical has been approved by the Director of the Office of Management and Budget through June 6, 1988,

ISSN 0014-5688 USPS 383-310 I I '-l Interrogation Post Miranda Refinements (Part /)

The Supreme Court's 1966 land­ terrogation do not both exist simultane­ By 1 ously, no warnings need legally be mark decision in Miranda v. Arizona JEFFREY HIGGINBOTHAM dramatically changed the manner in given to a person who is the subject of which most interrogations of suspects police questioning. The Miranda deci­ Special Agent are conducted and may have even sion defined the term "custodial inter­ FBI Academy contributed to a broader change in law rogation" as follows: Legal Counsel Division Federal Bureau of Investigation enforcement by forcing an increased "By custodial interrogation, we Quantico, VA respect for a suspect's constitutional mean questioning initiated by law protections. 2 In Miranda v. Arizona, enforcement officers after a person the Supreme Court created a set of has been taken into custody or oth­ safeguards designed to protect a sus­ erwise deprived of his freedom of Law enforcement officers of other than pect's fifth amendment privilege action in a significant way.,,7 Federal jurisdiction who are interested 3 against self-incrimination. The now fa­ Many cases since Miranda, both in any legal issue discussed in this ar­ miliar warnings that an accused has in the Supreme Court and in the lower ticle should consult their legal adviser. the right to remain silent, that anything courts, have further refined the mean­ Some police procedures ruled permis­ said can be used against an accused ing of custodial interrogation and es­ sible under Federal constitutional law in court, that the accused has the right tablished a framework for its use. It is are of questionable legality under to the presence of an attorney, and the purpose of this article to examine a State law or are not permitted at all. that if the accused cannot afford an at­ number of those cases in an attempt to torney one will be appointed for him provide some measure of guidance prior to any questioning if the accused concerning the second prong of the 4 so desires are prerequisites in any Miranda trigger-interrogation.8 custodial interrogation. In fact, Miranda warnings are so well­ Interrogation Constrained entrenched in law enforcement prac­ There are two circumstances in tice and in the eyes of the courts that which it is crucial to understand the le­ one court has remarked that "[itl is gal implications of interrogating an ac­ nigh onto superfluous to remind that cused. The first is the more obvious Miranda forbids interrogation unless us and the one raised by the facts of prefaced by a list of cautions. Miranda itself. Ernesto Miranda was Yet, it is important to remember arrested at his home on March 13, that the protections outlined in the 1963, and taken to the Phoenix, AZ, Miranda decision apply only to custo­ police station where he was identified 6 dial interrogations. If custody and in- by the complaining witness at a lineup. Thereafter, he was taken to an interro­ gation room in the detective bureau and questioned by two police officers.

February 1986 I 23 Two hours later, Miranda had provided Mosley was arrested in the early after­ a voluntary written confession. Though noon of April 8, 1971, in connection Miranda was never told by the officers with two recent robberies. Following that he could consult with an attorney his arrest, Mosley was taken to a before and during questioning if he de­ Detroit Police Department station­ sired, neither did he request to do SO.9 house and advised of his Miranda Nonetheless, the Supreme Court ruled rights. When Mosley said he did not Miranda's confession inadmissible and want to answer any questions about ordered his conviction overturned be­ the robberies, all interrogation was cause Miranda, while in custody, had properly ceased, and Mosley was been interrogated before he was fully lodged in jail. At approximately 6:00 Special Agent Higginbotham warned of his fifth amendment protec­ p.m. that same evening, a second de­ tions and waived those rights. In doing tective sought to talk with Mosley, not so, the Supreme Court established the about the robberies, but about a mur­ rule that interrogation of a person in der in which Mosley was a suspect. custody cannot begin until the fifth Mosley, prior to any questioning re­ amendment warnings have been given garding the murder, was advised of his and a valid waiver of those rights Miranda rights by the detective, obtained. 1o waived those rights, and agreed to an­ The second ci(cumstance in which swer the detective's questions. During it is important to understand the legal the course of an interrogation, which ramifications of interrogation was al­ lasted only about 15 minutes, Mosley luded to in Miranda: gave a statement implicating himself in "If, however, he indicates in any the murder. At no time during the sec­ manner and at any stage of the ond interrogation did Mosley request to process that he wishes to consult remain silent or indicate that he de­ with an attorney before speaking sired to consult with an attorney. there can be no questioning. Like­ In the appeal of his first-degree wise, if the individual is alone and murder conviction, Mosley argued that indicates in any manner that he his initial invocation of his right to re­ does not wish to be interrogated, main silent absolutely forbid any sub­ the police may not question him."j1 sequent interrogation by police. The Thus, the Court established a second Supreme Court rejected the argument, rule that inter-rogation was not refusing to establish a "per se pro­ permitted once an individual had scription" on a subsequent inter­ 13 invoked his right to silence or right to rogation. However, the Court did es­ counsel. tablish the rules to be followed before In prohibiting interrogation after an a subsequent mterrogation, after an invocation of rights, the Supreme initial invocation of the right to remain 14 Court in Miranda, however, did not ad­ silent. The Court refined the rule pro­ dress whether interrogation could re­ hibiting interrogation after an invoca­ sume, and if so, at what point. Those tion of the right to silence holding that issues were resolved, however, in two when an accused invokes his right to sUbsequent cases. In 1975, the Su­ remain silent, all interrogation must preme Court decided the case of cease and may not begin again until Michigan v. Mos/ey.12 There, Richard the passage of a significant period of time and until fresh warnings have been given and a valid waiver obtained.

24 I FBI Law Enforcement Bulletin ______H when an accused invokes his n:ght to remain silent, all interrogation must cease and may not begin again until the passage of a significant period of tin1e and until fresh warnings ( ....---­ have been given and a valid waiver o,btained."

A case of similar import was de­ The issue before the Supreme Interrogation Defined cided by the Supreme Court in 1981. Court in Edwards v. Anzona was simi­ Though the Miranda rule was an­ In Edwards v. Arizona, 15 the defendant lar to that in Michigan v .. Mosley. Both nounced in 1966, it was not until 1980 was arrested pursuant to a warrant concerned a subsequent interrogation in Rhode Island v. Innis that the Su­ charging him with robbery, burglary, following an invocation of rights. How­ preme Court agreed to "address for and first-degree murder. During an in­ ever, the Court did not follow the same the first time the meaning of 'interroga­ terrogation, following a legally suffi­ rules they had established in Mosley. tion' under Miranda v. Arizona."21 cient warning and waiver of Miranda Rather, the Court ruled that an invoca­ On January 12, 1975, a Provi­ rights. Edwards gave only an exculpa­ tion of the right to counsel necessitates dence, RI, taxi driver was reported tory statement, presenting an alibi. He more restrictive rules than for invoca­ missing after being dispatched to pick then sought to "make a deaJ."16 After tion of the right to remain silent. The up a customer. His body was discov­ being told by the interrogating officer Court stated: ered 4 days later in a shallow grave. that he did not have the authority to "We further hold that an accused, He had died from a shotgun blast to make a deal, Edwards was provided such as Edwards, having ex­ the back of the head. On January 17, with the prosecutor's telephone num­ pressed his desire to deal with the 1975, shortly after midnight, the Provi­ ber and allowed to place a call. He police only through counsel, is not dence Police Department received a made the call, but hung up after a few subject to further interrogation by telephone call from another taxicab moments and said, "I want an attorney authorities until counsel has been driver who reported that he had just before making a deaJ."17 At that point, made available to him, unless the been robbed by a man wielding a all attempts to interrogate Edwards accused himself initiates further sawed-off shotgun. The taxi driver stopped, and Edwards was housed in communication, exchanges or con­ came to the police station to provide the county jail. versations with the police.,,18 the polfce a statement. While there, he The next morning two different of­ In Edwards, the Court imposed a "rigid noticed a picture of his assailant on a ficers had Edwards brought from his rule that an accused's request for an bulletin board and notified the officers. cell to an interrogation room. After they attorney is per se an invocation of his An officer prepared a photo spread, advised him of his Miranda rights, Fifth Amendment rights, requiring that and when the taxi driver again Edwards stated he was willing to talk all interrogation cease."19 It prohibits identified his assailant, police began a but desired first to listen to the taped the resumption of interrogation until search of the area in which the driver statement of an alleged accomplice such time as either counsel has been said he left the assailant after the who had earlier implicated Edwards in made available to the defendant or the robbery. the crime. After listening for several defendant himself has sought to talk At approximately 4:30 a.m., a pa­ minutes, Edwards provided a state­ with investigators.2o trolman cruising the area spotted Innis ment implicating himself in the crime. Commencing with Miranda, and standing in the street, and upon recog­ Following his conviction at trial, during following in Mosley and Edwards, the nizing him as the wanted robber, ar­ which his confession was received in Supreme Court has made clear that rested him and immediately advised evidence, Edwards appealed. He custodial interrogation is prohibited in him of his Miranda rights. The arrest­ claimed that his request to consult with essentially two instances. First, custo­ ing officer did not attempt to interro­ a lawyer during his initial interrogation dial Interrogation of an accused may gate or converse with Innis except to made inadmissible the confession not begin before Miranda rights are respond to Innis' request for a ciga­ which he had voluntarily provided dur­ given and a valid waiver obtained; and rette. Several minutes later, a Provi, ing his second interrogation. second, after a person has invoked his dence police sergeant arrived at the right to remain silent or to consult with scene and also advised Innis of his an attorney, interrogation must cease Miranda rights. Shortly thereafter, a and may be resumed only under cer­ tain conditions. What then is interrogation?

______February 1986/ 25 ft••• procedural safeguards of Miranda are not only mandated by direct custodial questioning but are also required to protect against various police practices which are tantamount to interrogation."

police captain who had also responded In answering the question, the to any words or action on the part of to the arrest scene approached and Court focused on the breadth and the police (other than those normally he, too, gave Innis his Miranda warn­ meaning of the passage from the attendant to arrest and custody) that ings. At that point, Innis said he under­ Miranda decision which states, "By the police should know are reason­ stood his rights and wanted to speak custodial interrogation, we mean ques­ ably likely to elicit an incriminating witil a lawyer. tioning initiated by law enforcement of­ response from the suspect."27 Three officers were then directed ficers after a person has been taken This encompassing definition of to take Innis from the site of the arrest into custody or otherwise deprived of interrogation might appear to cover to the central police station. They were his freedom of action in any significant nearly all police techniques and prac­ instructed not to question, intimidate, way.,,23 The Court rejected a narrow tices which precede an incriminating or coerce Innis in any way, and then reading of that passage, however, statement from a defendant. However, departed. After driving less than a mile declining to find that "questioning" it is not so broad that it imposes a "but­ from the scene of the arrest, one offi­ applies only "to those pOlice practices for" test requiring the suppression of cer began a conversation with another that involve express questioning of a confessions merely because the police and commented that Innis had been defendant while in custody.,,24 did or said something prior to the con­ arrested near a school for handi­ The Court explained that the pro­ fession. Innis itself rejects such a capped children and that one of those cedural safeguards of Miranda are not broad reading. Clearly, but for the offi­ children might come across the only mandated by direct custodial cers' conversation in the patrol car, sawed-off shotgun, which had not questioning but are also required to Innis would not have made his state­ been located, and accidentally injure protect against various police practices ment nor led the officers to the gun. or kill themselves. Innis, who over­ which are tantamount to interrogation. Yet in Innis, the Supreme Court found heard that conversation, interrupted Though they do not take the form of di­ that the officers' conversation was and told the officers he would lead rect questioning, those practices are "nothing more than a dialogue be­ them to the weapon. equally or perhaps more effective in tween the two officers to which no re­ The police car carrying Innis re­ compelling an accused to talk or sponse from [Innis] was invited ... turned to the scene of the arrest where subjugating him to the will of the illter­ [T]he entire conversation appear[ed] to the captain advised Innis of his rogator, "thereby undermin[ing] the have consisted of no more than a few Miranda rights for a fourth time. Innis privilege against compulsory self­ offhand remarks" and was neither a replied that he understood those rights incrimination.,,25 Pointing to several lengthy harangue nor a particularly but "wanted to get the gun out of the police interrogation techniques dis­ evocative staternent,28 and did not, way because of the kids in the area in cussed in Miranda, the Court in Rhode therefore, constitute interrogation. the school."22 He then led the police to Island v. Innis said: Only a "practice that the police a nearby field where hA pointed out the "It is clear that these techniques of should know is reasonably likely to shotgun under some rocks by the side persuasion [staged lineups, reverse evoke an incriminating response from of the road. Innis was subsequently in­ lineups, positing guilt, minimizing the a suspect thus amounts to interroga­ dicted and convicted of kidnaping, rob­ moral seriousness of crime, and tion. But since the police surely cannot bery, and murder. He unsuccessfully casting blame on the victim or soci­ be held accountable for the appealed his conviction through the ety], no less than express ques­ unforeseeable results of their words or State courts, and the Supreme Court tioning, were thought, in a custodial actions, the definition of interrogation agreed to hear the case to decide setting, to amount to can extend only to words or actions on whether the dialogue between the offi­ interrogation." 26 the part of police officers that they cers transporting Innis to the police Accordingly, the Innis Court ruled: should have known were reasonably station constituted interrogation, and if " ... the Miranda safeguards come likely to elict an incriminating so, whether it was impermissible after into play whenever a person in cus­ response.,,29 Innis had requested to talk with a tody is subjected to either express lawyer. questioning or its fUnctional equiva­ lent. That is to say, the term 'interro­ gation' under Miranda refers not only to express questioning, but also

26 I FBI Law Enforcement Bull!JtJn ______[

Many cases in the lower courts zens in the fact-finding process is weapon. As police approached and at­ since Innis have focused on whether not affected by our holding."32 tempted to persuade him to release his particular police words or conduct Other courts have applied that gun, the defendant said, "How many meet the test of direct questioning or rule to a variety of factual situations. people did I kill, how many people are its functional equivalent. An analysis of For example, in United States v. dead?"35 In ruling that the defendant's those cases reveals that they can be Scalf, 33 a prison inmate, Scalf, at­ incriminating statements were admissi­ divided into four categories: 1) On-the­ tacked and stabbed another inmate, ble, the court found Miranda inapplica­ scene questioning, 2) questioning nor­ then fled back into his cell. A prison ble, since it "does not reach a situation mally attendant to arrest and custody, guard approached Scalf's cell and such as the present one, where the 3) spoken words which are not ex­ asked him what had happened and statements were unsolicited, sponta­ press questioning but prompt in incul­ where the weapon was. The prisoner neous and freely made prior to any at­ patory statement from a defendant, responded by admitting that he had tempted questioning.,,36 and 4) nonverbal interrogation, i.e., po­ stabbed his fellow inmate and claiming In contrast, a Federal trial court lice action which precedes an that he had thrown the knives out a refused to admit an incriminating state­ incriminating response. This article will window. At a subsequent criminal trial, ment obtained at an arrest scene. In now explore those areas and provide Scalf objected to the admission of United States v. Corbin,37 the defend­ guidance to police interrogators as to those statements into evidence. He ar­ ant was arrested during a drug raid, when their actions might be consid­ gued that he had been subjected to and at her feet, was a .22-caliber re­ ered interrogation or its functional custodial interrogation without benefit volver. The arresting agent asked her equivalent, impermissible either before of warnings or a waiver of his Miranda about the gun. The defendant replied Miranda warnings are given and a rights. The trial court overruled his ob­ that the gun Was hers and had come waiver obtained or after there has jection, and the appellate court sus­ from her purse. In suppressing that ad­ been a invocation of rights but the re­ tained the use of Scalf's statements mission by the defendant, the court quirements of Mos/ey3o and against him. The court concluded that reasoned that the agent's question Edwards 31 have not been met to per­ the questions had merely been an on­ constituted custodial interrogation, mit a subsequent interrogation. the-scene inquiry to ascertain the since it was not a general inquiry re­ The remainder of this part of the facts, identify the injured, and locate garding the crime but rather was one article will discuss on-the-scene ques­ the weapons. The questions were gen­ which sought a guilty response and tioning and questioning normally at­ eral, regarding the facts of the crime in should have been preceded by tendant to arrest and custody. The the course of the investigatory, fact­ Miranda warnings and a waiver. concluding part will discuss the re­ finding process, not ones which would General on-the-scene inquiries maining categories, as well as the Su­ reasonably elicit an incriminating re­ are made many times each day by law preme Court's recently announced sponse. They were not interrogation enforcement officers throughout the public safety exception to the Miranda for purposes of Miranda. Nation. So long as they are reasonably rule. Similarly, in Rock v. Zimmer­ related to the facts surrounding a man, 34 the court permitted use of the crime and are asked to provide the of­ On-the-Scene Questioning defendant's incriminating statements ficer with basic and necessary informa­ Perhaps out of a recognition of obtained shortly before his arrest near tion concerning the crime, but not police practicalities, the Supreme the crime scene. In this case, the de­ one's guilt, they need not be preceded Court in Miranda v. Arizona stated that fendant set fire to his own house and by Miranda warnings. police officers who respond to a re­ shot and killed a neighbor. When fire ported crime or incident and ask ques­ officials responded to extinguish the Questions Normally Attendant to tions to cl~termine basic facts about blaze at the defendant's house, he be­ Arrest and Custody what has happened are not engaging gan shooting at them and killed the fire When the Supreme Court in in custodial interrogation. The Court chief. The defendant fled the police, Rhode Island v. Innis 38 provided the held: and when located nearby, still had his definition of interrogation, it recognized "General on-the scene questioning as to the facts surrounding a crime or other general questioning of citi-

February 1986 I 27 [

H routine booking questions which cause an arrestee to offer incriminating responses may be termed impermissible interrogation if asked with the intent to produce such an incriminating statement." that certain types of administrative When advised of his Miranda rights, tody" seem to hinge on the nature of questions are a necessary part of po­ the defendant requested to speak with the offense for which the person is ar­ lice work, the answers to which are a lawyer. All questioning ceased, and rested. One such case is South Oa­ also necessary simply because a per­ the defendant was taken to the local kota v. Neville. 44 Neville was stopped son has been arrested or incarcerated. jail to be lodged pending an appear­ by police for a routine traffic The Supreme Court described such ance in court. At the jail, before relin­ violation-running a stop sign. How­ questions as "those normally attendant quishing custody of the defendant, the ever, when he got out of his car, he to arrest and custody. ,,39 The cases FBI prepared paperwork necessary for stumbled and staggered. Based on which have interpreted that phrase fall the local jail to accept custody of the their observations of Neville, the police into three categories. Federal prisoner. The paperwork, concluded he was driving while intoxi­ The first category is basic to law which clearly indicated that the defend­ cated and placed him under arrest. enforcement. As a matter of good po­ ant had been arrested for murder, was The police then informed him that he lice practices, certain general ques­ then given to the jailer. As the jailer be­ had a choice of submitting to a blood tions concerning an arrestee's per­ gan completion of his own paperwork, alcohol content (BAC) test or face au­ sonal history and background are which included listing the charges for tomatic revocation of his driver's li­ asked whenever a person is arrested which the arrest was made, he turned cense. When told of the choice, Neville or incarcerated. The practice of "taking to the defendant and asked him in responded, "I'm too drunk, I won't pass basic personal information (name, age, what kind of trouble he was involved. the test.,,45 Neville's response was place of birth) [is] merely ... a In response, the defendant admitted to viewed as a refusal to submit to a BAC ministeral duty incident to arrest and the murder. test, and his license was revoked. custody,,40 and does not constitute in­ In finding that the jailer's question Neville contested the revocation, terrogation within the meaning of was not "normally attendant to cus­ claiming that the inquiry about whether Miranda's custodial interrogation rule. tody," the fifth circuit court of appeals he would submit to a BAC test was in­ Even when this practice results in was persuaded that the jailer already terrogation which should have been the acquisition of incriminating informa­ knew the charge underlying the de­ preceded by Miranda warnings. The tion, suppression is not mandated, fendant's arrest and in fact had the Supreme Court disagreed, instead since a guilty response was neither in­ FBI's paperwork listing the crime in his finding there was no interrogation for vited nor expected.41 If an accused possession at the time he asked the purposes of Miranda. The Court makes damaging statements in re­ question. The court found that the jail­ stated: sponse to routine biographical ques­ er's question was interrogation, since " ... police words or actions 'nor­ tions, he is a victum of his own blun­ the jailer knew or reasonably should mally attendant to arrest and cus­ der. As one court stated, "To the have known that it would prompt an tody' do not constitute interrogration. extent that [an arrested person] gave incriminating response. The police inquiry here is highly reg­ incriminating responses, his answer The Webb case illustrates the lim­ ulated by state law, and is presented merely exceeded the scope of the its of the "normally attendant to arrest in virtually the same words to all questions ... 42 and custody" line of cases. General suspects. It is similar to finger­ A note of caution is in order, how­ background data and personal history printing or photography."46 ever. Even routine booking questions are necessary to allow police to iden­ A similar result was reached in which cause an arrestee to offer tify accurately or to apprehend the ar­ Edwards v. Bray, 47 but for a different incriminating responses may be termed rested person should he escape or fail reason, There, the defendant was impermissible interrogation if asked to appear in court as scheduled. But stopped based on the suspicion that with the intent to produce such an should the questions extend beyond he was driving under the influence of incriminating statement. An example of those purposes, they too become "in­ this is United States v. Webb. 43 In terrogation" which may be proscribed Webb, a man had been arrested by by Miranda, Mosley, or Edwards. military police and the FBI for murder. Decisions in a second category of cases which find police questioning "normally attendant to arrest and cus-

28 I FBI Law Enforcement Bulletin ______alcohol. The officer asked a series of jection that the police chief's statement only providing the defendant informa­ questions-whether the driver was in­ was the equivalent of interrogation tion concerning the charge for which jured or taking medication (to explain which took place before a Miranda he was being arrested so that he could his erratic driving) and how much edu­ warning was given and a waiver ob­ exercise his judgment as to what cation the driver had (to determine tained. The appellate court said: course of action to take. The court what type of field sobriety test to ad­ "... we believe it clear that those said: minister). Finally, the officer asked the words and actions, which are nec­ " ... when an officer informs a de­ driver to recite the alphabet. When the essary and appropriate to inform fendant of circumstances which con­ driver failed to complete the test suc­ fellow officers of a potential threat tribute to an intelligent exercise of cessfull~, he was arrested. He ap­ to their own safety and that of his judgment, this information may pealed his conviction, claiming he was others during the course of an al'­ be considered normally attendant to mterrogated without benefit of Miranda rest or custody, are 'normally arrest and custody."s4 warnings. The court refused to accept attendant: ,,50 The Crisco case also focused on that argument and held that no interro­ The Neville, Bray, and Bennett that portion of the Rhode Island v. gation took place, since the questions cases are representative of cases in Innis,55 which stated that interrogation were not asked to elicit a testimonial which the offense for which an arrest is must be judged primarily by the de­ response. The questions asked were made controls whether the question fendant's perceptions of the police intended only to evidence the driver's asked is "normally attendant to arrest conduct and concluded that where a physical characteristics of intoxication and custOdy." Clearly, in cases involv­ defendant himself shows that he does which are not protected under the fifth drivers, standard ques­ not believe he should be arrested, it amendment at all. i~g intoxi~ated tiOns relatmg to the testing for intoxica­ strongly suggests that he does not per­ A final case which illustrates "nor­ tion meet the test of "normally ceive himself to be the subject of mally attendant to arrest" questions attendant." Similarly, in cases where interrogation. based on the type of crime is United weapons are involved in the offense a Similarly, in Kirkpatrick v. States v. Bennett. 48 There, police re­ warning concerning a safety Blackburn,56 the defendant asked an sponded to a call that the defendant thr~at po~ed by those weapons to arresting officer what his co-defendant had been had threatened persons at a bar with a officers or others falls within the same saying to pOlice and was told that the rifle and had fired shots into a house. classification. co-defendant had been implicating the When the police located the defendant The last category of cases in defendant. The officer also told the de­ he was using a pay telephone at a which questions fall under the "nl)r­ fendant he would be well-advised to convenience store. While police waited mally attendant to arrest and custody" protect himself. The defendant then for the defendant to finish his phone banner are those where the pOlice do implicated himself in the crime by mak­ call so that he could be questioned no more than respond to the defend­ ing damaging admissions. The court the chief of police arrived on the scen~ found the officer's response was nei­ ant~' own questions. For example, in and approached the defendant. In United States v. Crisco, 51 the defend­ ther direct questioning nor its func­ doing so he observed a rifle inside the ant, upon his arrest, claimed he did not tional equivalent, since [s]uch a com­ defendant's car and announcec, understand why he was being arrested ment is no more likely to invoke a "There is a gun in the car."49 The de­ because he had not done anything response on the part of a defendant fendant, having hung up the tele­ wrong. In response, one of the arrest­ than the conversation between the po­ phone, admitted possessing the gun ing officers, who had dealt with the de­ lice officers in Rhode Island v. and was subsequently charged and . 1157 1ft . fendant in an undercover role said In ms. n ac, In the eyes of this par- convicted of being a felon unlawfully in "Hey, met with me for the possession of a firearm. His conviction ~ou p~rpos~ of seemg $60,000.00 that I was going was sustained on appeal over his ob- to use to buy a kilo of cocaine.,,52 The defen~ant replied, "Well, I admit that."53 In holding the officer's com­ ment was not the equivalent of interro­ gation, the court ruled the officer was

----______February 1986 I 29 "... where it is the defendant himself who asks questions of the officer pr.ior to making an inculpatory response, comments or answers to the defendant's questions are not interrogation for purposes of Miranda."

ticular court, U[t)he standard for what is '''The standard announced by the Supreme Court in 30Supra note 12. Miranda v. Arizona requires the government to prove an 31 Supra note 15. likely to elicit an involuntary response accused made a knowing, intelligent, and voluntary waiver 32384 U.S. 436, 477-78 (1966J. is rigorous.',5B of his privilege against self-incrimination and his right to 33725 F.2d 1272 (10th Cir. 1984). retained or appointed counsel. 384 U.S. 436, 475-6 34543 F.Supp. 179 (M.D. Penn. 1982). In sum, where it is the defendant (1966), 351d. at 190. "384 U.S. 436, 444-45 (1966). 361d. at 192. himself who asks questions of the offi­ 37 12423 U.S. 96 (1975). 494 F.Supp. 244 (M.D. N. Carolina 1980). cer prior to making an inculpatory 131d. at 102-03. 3B Supra note 21. 39 response, comments or answers to the 141n sum, Mosley held that a subsequent Interrogation 446 U.S. at 301. was permissible If the initial invocation had been "scrupu­ 40United States v. Morrow, 731 F.2d 233, 237 (4th defendant's questions are not interro­ lously honored," a significant period of time had elapsed Cir.), cert. denied, 104 S.Ct. 2689 (1984). gation for purposes of Miranda. between the Interrogations, and prior to the subsequent in­ 41United States v. Glen-Archita, 677 F.2d 809 (11th terrogation, fresh Miranda rights are given and a waiver Cir.), cert. denied, 459 U.S. 874 (1982); United States v. "Miranda does not bar police from an­ obtained. 423 U.S. at 106. For a more complete discus­ Abell, 586 F. Supp. 1414 (D. Maine 1984). But see, sion of the issue of subsequent interrogations following an United States v. Hinckley, 525 F. Supp. 1342 (D.C. D.C. swering a suspect's question about a invocation of rights, see, Charles E. Riley, III, "Interroga­ 1981), att'd 672 F.2d 115 (D.C. Cir, 1982). crime alleged, even after he has re­ tion Following Assertion of Rights: FBI Law Enforcement 2Robinson v. Percy, 738 F.2d 214, 219 (7th Cir. Bulletin, vol. 53, Nos. 5 & 6, May-June 1984, pp. 24-31, 1984). quested counsel.,,59 pp.26-31. 3755 F.2d 382 (5th Clr. 1985). 15451 U.S. 477 (1981). 44103 S.Ct 916 (1983). 161d. at 479. 45/d. at 918. Footnotes HId. 46 103 S.Ct. 923, n. 15. 47 '384 U.S. 436 (1966). 1B451 U.S. at 484-5. 688 F.2d 91 (10th Cir. 1982). 2Miranda has often been cited as the catalyst toward 191d. at 485, quoting Fare v. Michael C., 442 U.S. 4B626 F.2d 1309 (5th Cir. 1980), cert. denied, 449 a more profes~ional faw enforcement community, See, 707, 719 (1979). US. 1092 (1981). e.g .. United States v. Segura, 104 S. Ct. 3380, 3404 2oFor a discussion of conduct which constitutes an ini­ 49ld.at 1310. 50 (1984) (J. Stevens, dissenting). tiation of an interrogation by a defendant, see, Charles E. 626 F.2d at 1313. 51 3U.S. Constitution, Amsnd. V provides In part: "No Riley III, "Interrogation Following Assertion of Rights,' FBI 725 F.2d 1228 (9th Cir.), cert. dAnied, 104 S. Ct. person shall be ... compelled In any criminal case to be a Law Enforcement Bulletin, vol. 53, Nos. 5 b. 6, May-June 2360 (1984). witness against himself," 1984, pp. 24-31, pp 26-31. 521d. at 1230. 4384 U.S. 436, 479 (1966). 21 Rhode Island v. Innis, 446 U.S. 291, 297 (1980). 53ld. 54 5Henry v. Dees. 658 F.2d 406, 410 (5th Cir. 1981). 22ld. at 295. 725 F.2d at 1232. 6384 U.S. 436, 444 (1966). 23Supra note 7, quoted In Rhode Istand v. Innis, 446 55Supra note 21. 56 71d. U.S. at 298. (Emphasis from Innis). 597 F.SUpp. 1562 (E,D, Louisiana 1984), rev'd on BThe courts have been equally active In refining the 24446 U.S. at 298. other p,rounds, 777 F.2d 272 (5th Clr. 1985). meaning of custody for purposes of Miranda, For a com­ 25446 U.S. at 299. 5 Id. at 1577. prehensive discussion of !hose cases, see, Charles E. 26 d. saId. 27 Riley, fll, "Finetunlng Miranda PolicIes: FBI Law Enforce­ 446' U.S. at 300-01. 59United States v. GUido,704 F.2d 675 (2d Cir. 1983). ment Bulletin, vol. 54, No. 1. January 1985, pp.23-31. 2B446 U.S. at 302-03. 9384 U,S. 436, 491-92 (1966). 29446 U.S. at 301-02.

Pen Knife

The pen knife, which resembles a pen when closed, opens to disclose a stainless steel knife blade. Law en­ forcem3nt personnel should be alert for this device, which is being sold on the open market at least in the Tampa Bay area of Florida. (Submitted by the Sheriff, Pasco County, FL)

30 I FBI Law Enforcement Bulletin