FERGUSON POLICE 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 arrest 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 suspect. Interrogation includes direct questioning about a crime 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. Arizona, the U.S. Supreme Court held that upon arrest or prior to custodial questioning the police must inform arrested persons or suspects 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 evidence 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 probable cause 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 traffic stop 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.