On 'custody'.

Stone walls do not a prison make Nor iron bars a cage--Richard Lovelace (1)

Recently, the Supreme Court in Yarborough v. Alvarado found itself contemplating the nature of confinement. (2) More specifically, it considered the meaning of "custody" for the purposes of determining whether Miranda warnings should have been given to a suspect. (3) Like the 17th-century British poet Lovelace, all nine justices agreed that "custody" is a state of mind, not necessarily a purely physical condition. However, the justices divided 5-4 on the nature of the "reasonable person" whose state of mind decides whether a person was, in fact, in custody.

A few months before his 18th birthday, Michael Alvarado agreed to help a friend steal a truck in a mall parking lot. During the crime, the friend shot and killed the truck's driver, and Alvarado helped hide the gun.

A month later, a county sheriff's detective, Cheryl Comstock, contacted Alvarado's parents and told them that she wanted to interview their son. They brought him to the sheriff's station and waited in the lobby while Alvarado went with Comstock to be interviewed. Alvarado later claimed that Comstock denied his parents' request to be present during the interview.

Without giving Alvarado Miranda warnings, Comstock conducted a two-hour tape-recorded interview during which Alvarado admitted to participating in the attempted robbery and helping to hide the gun. (4) He was convicted of second-degree murder.

The conviction was upheld by a state appellate court and then by a federal district court on Alvarado's habeas corpus petition. The Ninth Circuit reversed, finding that because the interview had been "custodial," Alvarado should have received Miranda warnings.

The Supreme Court, in an opinion by Justice Anthony Kennedy, noted that because this was a habeas corpus case, the issue for the federal courts was not simply whether Alvarado's interrogation had been custodial. Rather, the Antiterrolism and Effective Death Penalty Act of 1996 (AEDPA) applied. Under its terms, the issue was whether a state court adjudication had "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States." (5) The Ninth Circuit had held that the state courts' determination that Alvarado was not in custody for Miranda purposes was an unreasonable application of clearly established law. The Supreme Court concluded that it was not.

The Court, unhelpfully for future cases, did not decide whether Alvarado had been in custody during his interview, conceding that "fair-minded jurists could disagree" on this issue. (6) On the one hand, the Court noted, the police did not transport Alvarado to the station, require him to be there at a particular time, or threaten him with arrest. Moreover, Comstock told Alvarado and his parents that the interview would not last long, and her questions focused on his cosuspect's actions. Alvarado was released at the interview's conclusion. (7)

On the other hand, the Court observed, the interview did take place at the police station and was four times as long as a similar interview that was deemed noncustodial in Oregon v. Mathiason. (8) Also, Alvarado had been taken to the station by his parents, "making the extent of his control over his presence unclear," and was never told that he was free to leave. (9)

The Ninth Circuit had placed "considerable reliance" on Alvarado's youth and his lack of experience with the criminal justice system in concluding that the interrogation was custodial. (10) The relevance of those factors was at the core of the dispute among the justices.

Two tests

In discussing how a court should determine whether an interrogation is custodial for Miranda purposes, the majority cited two tests that the Supreme Court had applied in earlier cases. In California v. Beheler, the Court held that "the ultimate inquiry is simply whether there is a formal arrest or restraint on freedom of movement of the degree associated with formal arrest." (11)

Kennedy noted that "more recent cases instruct that custody must be determined based on how a reasonable person in the suspect's situation would perceive his circumstances." (12) In other words, the question is whether a reasonable person would have felt free to "terminate the interrogation and leave." (13)

The latter test raised a question that generated sharp disagreement among the justices: When one considers the viewpoint of a reasonable person in the suspect's circumstances, do those circumstances include the suspect's youth and lack of criminal experience?

The majority, emphasized that the test for custody, unlike the test for voluntariness of a confession, was objective and did not require the police to consider "the frailties or idiosyncracies of every person whom they question." (14)

But, obviously, no custody test can completely ignore the individual characteristics of every suspect. If Alvarado had been 10 years old or had the intellect of someone that age, he surely would not have felt free to go unless the police had invited him to do so. And if he had been confined to a wheelchair and had been carried by the police down a flight of stairs to the interview room, he would not have felt free to go of his own accord. An immigrant who cannot speak English also would be more likely to feel confined.

The Court could have made it clear that "in the suspect's situation" referred to obvious factors, such as those mentioned above, that the police should realize would influence the suspect's sense of freedom. Instead, by labeling the test "objective" when it clearly contains a subjective element, the Court implied that a suspect's age is irrelevant in determining whether an interrogation is custodial. And it conclusively confirmed that a suspect's past experience with the police should never be a part of the equation. (15)

On this latter point, the Court was correct. It is impossible to know how a suspect's prior experience might affect his or her sense of freedom to leave, even if the police were aware of it. For example, a suspect held for a lengthy interview might think an arrest was imminent--or perhaps not.

Probably the most significant factor influencing the suspect's sense of freedom is whether he or she committed the crime. But clearly a court could not expect police officers to take this factor into account when they are trying to discover or confirm the answer to that very question. (16)

Concurring, Justice Sandra Day O'Connor agreed with the dissenters that age could be a relevant factor in a custody analysis, making five justices who accepted that proposition. But she said that expecting the police to "recognize that a suspect is a juvenile when he is so close to age of majority," as Alvarado was, would be unreasonable. (17)

Justice Stephen Brever, for the four dissenters, asked,

   What reasonable person in the circumstances--brought
   to a police station by his
   parents at police request, put in a small interrogation
   room, questioned for a solid
   two hours, and confronted with claims that
   there is strong evidence that he participated
   in a serious crime, could have thought to
   himself, "Well, anytime I want to leave I can
   just get up and walk out"? (18)

I am inclined to agree with Brever that, under the circumstances in Yarborough, a 17-year-old would not have felt free to leave, although I would not expect the police to take into account as many factors as Breyer does.

But is this the right test? The majority assumed that the "ultimate inquiry"--Was there a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest?--could be answered by determining whether a reasonable person would have felt free to leave. (19) In my view, these are two separate tests.

The detective who interviewed Alvarado probably did not consider him to be trader arrest or she would have given him Miranda warnings--the police generally do not fail to do this when it is required--and would not have released him after the interview (although, as the dissent points out, this fact is irrelevant to how the suspect might have felt during the interview (20)). And while Alvarado probably did not feel free to leave, I doubt that he felt "arrested" in the sense that he felt he was about to be hooked, photographed, and put in a cell.

In short, there is a middle ground between feeling free to leave and "restraint on freedom of movement associated with formal arrest," and Alvardo was on it. The test for whether a person believes he or she is in custody cannot be simply whether he or she feels free to leave, because a person subject to a Terry stop is not free to leave and yet is not entitled to Miranda warnings. (21)

This case is not like Dunaway v. New York. (22) The suspect in that case was "picked up for questioning," taken to the station house in a police car, and given Miranda warnings. Although he was not told he was trader arrest and was not booked or fingerprinted, the Court held that the officers' actions amounted to an arrest for Fourth Amendment purposes and had to be based on probable cause. Likewise, the suspect would have been deemed to have been in police custody for Fifth Amendment purposes--had that issue been before the Court--because, as Beheler made clear, the issue is the same: A reasonable person in Dunaway's situation would have felt confined to a degree associated with formal arrest.

It might be desirable to require Miranda warnings in a middle-ground situation like Alvarado's. In a pre-arrest interview, when the lines of opposition are not clearly drawn, suspects are arguably more vulnerable to interrogation tactics and more likely to make an incriminating statement against their own interests as they try to convince the police of their innocence. But this would require expanding Miranda's holding, which the Court is clearly not prepared to do. And, in any case, the warnings would be less likely to have an impact in a pre-arrest interview because they inform the suspect of rights--remaining silent, obtaining counsel--that, if a suspect asserts them, would undermine his or her goal of appearing cooperative.

In short, I concur in the result. I think Alvarado was not restrained in a way associated with formal arrest, even though a 17-year-old would not have felt free to go trader the circumstances. Further, I also think that factors like a suspect's age, mental impairments, and ability to understand English--which the police should realize affect the suspect's assessment of the situation--should be considered in determining whether a person believed he or she was in custody. But, as noted, I think the "feels-free-to-leave" test misses the point.

Playing it safe

Oddly, the practical effect of this case's being decided under the AEDPA is that, given the justices' votes, police should act as though the Court reached the opposite conclusion--that is, they should assume that Miranda warnings are required in a situation like Alvarado's.

The Court did not decide what factors should be considered ill determining whether an interrogation is custodial. The justices merely held that the state courts were not clearly wrong in reaching the conclusion they did. In fact, a majority--O'Connor and the four dissenting justices--agreed that age should be considered in applying the custody case. All of the justices agreed that the length of the interrogation was also relevant.

On a direct appeal, as opposed to habeas corpus petition, courts may feel free to conclude, based on Alvarado, that a two-hour interview of a juvenile is custodial. The younger the suspect is, the more likely courts are to reach that conclusion. Consequently, the police would be well advised to give Miranda warnings for an interview of this length, especially of a juvenile. (Of course, the police can always reassure the suspect that he or she is not under arrest.) Otherwise, the appellate courts may accept Alvarado's suggestion that a conclusion either way as to custody would not be unreasonable.

Notes

(1.) Richard Lovelace, To Althea: From Prison, in BARTLETT'S FAMILIAR QUOTATIONS 267 (John Bartlett & Justin Kaplan eds., 16th ed. 1992).

(2.) 124 S. Ct. 2140 (2004).

(3.) Miranda v. Arizona, 384 U.S. 486 (1966).

(4.) Yarborough, 124 S. Ct. 2140, 2146.

(5.) Id. at 2144 (quoting the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. [section] 2254(d)(1)(2001)).

(6.) Id. at 2149.

(7.) Id. at 2149-50.

(8.) 429 U.S. 492 (1977).

(9.) Yarborough, 124 S. Ct. 2140, 2150.

(10.) Id.

(11.) 463 U.S. 1121, 1125 (1983).

(12.) Yarborough, 124 S. Ct. 2140, 2148 (citing Berkemer v. McCarty, 468 U.S. 420 (1984)).

(13.) Id. at 2149 (quoting Thompson v. Keohane, 516 U.S. 99 (1995)).

(14.) Id. at 2151 (quoting Berkemer, 468 U.S. 420, 430-32).

(15.) Id. at 2152.

(16.) See Florida v. Bostick, 501 U.S. 429 (1991).

(17.) 124 S. Ct. 2140, 2152 (O'Connor, J., concurring).

(18.) Id. at 2153 (Breyer, J., dissenting). Focusing on the reasonable suspect's state of mind at the time of the confession, rather than at the beginning of the interview, is surely the correct approach.

(19.) Id. at 2149.

(20.) Id. at 2154 (Breyer, J., dissenting).

(21.) Berkemer, 468 U.S. 420.

(22.) 442 U.S. 200 (1979).

CRAIG M. BRADLEY is the James Louis Calamaras Professor of Law at the Indiana University School of Law in Bloomington. He can be reached by e-mail at [e-mail].