ARREST ‑- POLICE OFFICERS ‑- CONSTITUTIONAL RIGHTS OF ACCUSED PERSONS ‑- ADMISSIBILITY OF EVIDENCE
A person suspected of committing a crime must be warned of his constitutional rights as an individual under the rule of Miranda v. Arizona, 384 U.S. 436, 16 L.Ed. 2d 694, 86 S.Ct. 1602 (1966), before interrogation in those instances where, even though no formal arrest (with or without a warrant) has been made, the investigating officers have established in their minds a "probable cause" to believe that this person has committed a crime and have "focused in" on a further specific investigation of him on that basis.
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January 28, 1974
Honorable Anton J. Miller
P.O. Box 563
Raymond, Washington 98577
Cite as: AGO 1974 No. 3
By letter previously acknowledged you have made reference to a prior opinion of this office, AGO 1970 No. 2 [[to Peter D. Francis, State Senator on January 20, 1970]], and have asked for our review and further consideration of a portion of that opinion in the light of subsequent decisions by the Washington courts. Based upon these decisions you have then asked for our opinion on a number of related questions the essence of which we would paraphrase as follows:
Must a person suspected of committing a crime be warned of his constitutional rights under the rule of Miranda v. Arizona, 384 U.S. 436, 16 L.Ed. 2d 694, 86 S.Ct. 1602 (1966), before interrogation in those instances where, even though no formal arrest (with or without a warrant) has been made, the investigating officers have established in their minds a "probable cause" to believe that this person has committed a crime and have "focused in" on a further specific investigation of him on that basis?
[[Orig. Op. Page 2]]
We answer this question in the affirmative as explained in our analysis.
InMiranda v. Arizona, supra, as you know, the United States Supreme Court held that under the "right to counsel" provision of the Sixth Amendment to the United States Constitution, certain warnings must be given by law enforcement officers prior to their "custodial interrogation" of a person under investigation for the commission of a crime. Specifically, such a person must be warned: (1) That he has the right to remain silent; (2) that any statement he does make can and will be used as evidence against him in a court of law; (3) that he has the right to consult with counsel before answering any questions; (4) that he has the right to have his counsel present during the interrogation; (5) and that if he cannot afford an attorney, one will be appointed for him without cost to him, prior to questioning, if he so desires.1/ Accord,State v. Creach, 77 Wn.2d 194, 461 P.2d 329 (1969), wherein our own state supreme court further explained that the consequence of a failure to give these warnings when required is the inadmissibility in evidence in a subsequent criminal trial of any statements made by the accused in response to the interrogation.
The critical issue raised by your immediate request is the meaning of the term "custodial interrogation." InMiranda itself, this was described as:
". . . questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. . . ."2/
[[Orig. Op. Page 3]]
The prior opinion of this office to which you have referred in your letter, AGO 1970 No. 2, dealt with this issue in the context of questioning during the initial "temporary detention" of a criminal suspect and, based largely upon the approach taken by the Washington court in State v. Creach, supra, concluded that:
". . . A police officer who has temporarily detained a person for investigation of suspected criminal conduct without making a formal arrest is not required to warn the detained person of his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 16 L.Ed. 2d 694, 86 S.Ct. 1602 (1966), until the initial suspicions which led the officer to make the 'stop' are transformed into 'probable cause' to believe the person confronted has committed an offense ‑ or until the suspect has a reasonable basis in fact to believe that he is under arrest (i.e., in custody of the police and not free to leave); at either of these points, the required warnings must be given in order to insure the admissibility in evidence of any incriminating statements thereafter made by the suspect."
Since our issuance of that opinion on January 29, 1970, there have, to our knowledge, been no further decisions by the Washington State Supreme Court respecting this matter. There have, however, been a number of decisions by the various divisions of the state court of appeals ‑ and it is these to which we assume you were referring in that portion of your letter which alluded to subsequent Washington cases. Briefly summarized, these appeals court decisions are as follows:
State v. Lister, 2 Wn.App. 737, 469 P.2d 597 (1970), holding that there is no custodial interrogation, for the purposes of the Miranda requirement as to constitutional warnings, where police officers, in the course of a routine investigation of a crime and within a reasonable time and distance of the occurrence of the crime, stop and obtain the identity of suspects on a public street while using reasonable precautions for their own safety.
[[Orig. Op. Page 4]]
State v. Vining, 2 Wn.App. 802, 472 P.2d 564 (1970), holding that a police officer's station-house questioning of a suspect constitutes custodial interrogation within the meaning of the Miranda test for admission of confessions even though the suspect travels to the station house in his own transportation and at his own convenience.
State v. Berkins, 2 Wn.App. 910, 471 P.2d 131 (1970), holding that requesting or ordering a possible suspect out of a car without coercive police conduct during the investigative period of a crime, and before there is probable cause for arrest, does not result in custodial status requiring thatMiranda warnings precede preliminary inquiries made at that time.
State v. Slack, 3 Wn.App. 116, 472 P.2d 541 (1970), ruling that statements made by a person to police officers during the investigation of an apparent sidewalk dispute between two persons and before the police had probable cause to believe the person interrogated had committed a crime are not inadmissible at a subsequent criminal prosecution because Miranda warnings were not given.
State v. Gray, 3 Wn.App. 146, 473 P.2d 189 (1970), holding that questioning during temporary detention for a traffic offense, occurring prior to the point when the investigation of an unrelated and more serious offense had shifted from the investigatory to the accusatory stage, is not in-custody interrogation insofar as the more serious crime is concerned.
State v. Jordan, 3 Wn.App. 284, 475 P.2d 135 (1970), citingState v. Eldred, 76 Wn.2d 443, 457 P.2d 540 (1969), and holding that voluntary, noninterrogational statements made by one arrested while being transported to the police station were not protected by the Miranda rule and that the officer hearing them could testify about the statements overheard even though no Miranda warnings had been given.3/
State v. Haverty, 3 Wn.App. 495, 475 P.2d 887 (1970), holding that the statements of a later charged defendant made during the investigatory stage of a possible crime, and before the arresting officers have knowledge of sufficient facts to constitute probable cause to arrest the defendant, are admissible at trial even though the defendant had not been previously givenMiranda warnings.
[[Orig. Op. Page 5]]
State v. Farmer, 3 Wn.App. 575, 476 P.2d 129 (1970), holding that requesting possible suspects to voluntarily accompany officers a short distance for purposes of identification during the investigation of a crime, and before there is probable cause for arrest, does not result in custodial status requiring advisement of constitutional rights prior to questioning at that time.
State v. Werry, 6 Wn.App. 540, 494 P.2d 1002 (1972), holding that while a person taken into custody or otherwise deprived of his freedom of action in any significant way must be advised of his constitutional rights before he is questioned, it is not necessary to give such a prefatory warning with all noncoercive questioning during the course of a routine investigation and before the process has shifted from investigatory to accusatory.
State v. Cloud, 7 Wn.App. 211, 498 P.2d 907 (1972), holding that questions asked of a person are part of the routine investigation of an incident prior to such time as there is probable cause for arrest; i.e., a reasonable ground supported by known circumstances to warrant a cautious man in believing that the person being questioned was guilty of a crime.
State v. Darnell, 8 Wn.App. 627, 508 P.2d 613 (1973), holding that while general questioning as a part of a routine investigation of an incident prior to the time the investigation focuses on the person being questioned for a particular crime does not constitute custodial interrogation, once that focusing takes place theMiranda rule applies even though no formal arrest yet has taken place.
Although it is most certainly true that these decisions, by and large, represent a somewhat narrower view of what constitutes "custodial interrogation" than has been taken by some courts in other jurisdictions,4/ there is nothing in any of [[Orig. Op. Page 6]] them which would cause us at this time to depart from the position we took in AGO 1970 No. 2, supra, with respect to the significance (or lack of same) of a formal arrest ‑ either with or without a warrant. Thus while, as indicated therein, aMiranda warning clearly must be given before the further questioning of an individual who has been formally arrested and taken into police custody, the necessity for such a warning is not limited to those cases. Indeed, this point and the reason for it were both specifically recognized by our court of appeals in the first of the cases above summarized, State v. Lister, supra, in the following excerpt from its opinion:
"The state argues that no arrest was made. It is not disputed that the defendants were permitted to go on their way after the questioning. Whether or not a formal arrest was made is not the issue. Such a requirement would encourage an officer who wished to avoid the warning to simply delay formal arrest until after questioning is completed."
Accord,State v. Darnell, supra, in which the court held Miranda to be applicable at the time an investigation focuses in upon a particular suspect even though no formal arrest has yet taken place. In other words, it is not the fact that an arrest has been made or even that the interrogating officer has an immediate right to make an arrest (with or without a warrant) that is determinative of whether a Miranda warning must be given before the suspect is questioned. Rather, (as stated in AGO 1970 No. 2, supra) it is whether the interrogating officer has "probable cause" to believe that the person being questioned has committed an offense, or whether, alternatively, he has by his action caused the suspect to have a reasonable basis to believe that he is under arrest that is determinative of this issue.
[[Orig. Op. Page 7]]
We thus answer your question, as above paraphrased, in the affirmative and trust that the foregoing will be of assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
GARRY E. WEGNER
Assistant Attorney General
*** FOOTNOTES ***
1/Although it is arguable that the last element of this warning was formerly only required where the crime involved was a felony, it now seems apparent that it is required in misdemeanor cases as well whenever a conviction might result in any sort of a jail sentence. See,Argersinger v. Hamlin, 407 U.S. 25, 32 L.Ed. 2d 530, 92 S.Ct. 2006 (1972); cf., AGO 1972 No. 22 [[to John C. Merkel, Prosecuting Attorney, Kitsap County on September 18, 1972]].
2/384 U.S. 444.
3/Accord, State v. Galen, 5 Wn.App. 353, 487 P.2d 273 (1971).
4/See in this regard the exhaustive annotation on the question of what constitutes "custodial interrogation" within the Miranda rule that appears in 31 ALR 3rd 565. One of the more interesting facets of this annotation, which we would most certainly commend to your attention, is its organizational breakdown of the subject on the basis of (a) the various places where the interrogation has occurred and (b) the status of the person doing the interrogating. Notably, in all of the Washington cases discussed therein (all of which precededState v. Creach, supra) the particular questioning involved was heldnot to constitute "custodial interrogation." See, in chronological order, State v. Persinger, 72 Wn.2d 561, 433 P.2d 867 (1967); State v. Bower, 73 Wn.2d 634, 440 P.2d 167 (1968); State v. Huson, 73 Wn.2d 660, 440 P.2d 192 (1968); andState v. Valpredo, 75 Wn.2d 368, 450 P.2d 979 (1969).