Supreme Court Waters Down Miranda Rights Again

The Supreme Court yesterday, in 6 to 3 decision joined by Justice Elena Kagen, struck another blow at Miranda Rights. The opinion in Howes, Warden v. Fields is here.

The record in this case reveals that respondent was not taken into custody for purposes of Miranda. To be sure, respondent did not invite the interview or consent to it in advance, and he was not advised that he was free to decline to speak with the deputies.


The interview lasted for between five and seven hours in the evening and continued well past the hour when respondent generally went to bed; the deputies who questioned respondent were armed; and one of the deputies, according to respondent, “[u]sed a very sharp tone,” ... and, on one occasion, profanity."

He was offered food and water, and the door to the conference room was sometimes left open. ...“All of these objective facts are consistent with an interrogation environment in which a reasonable person would have felt free to terminate the interview and leave.”

These circumstances, however, were offset by others. Most important, respondent was told at the outset of the interrogation, and was reminded again thereafter, that he could leave and go back to his cell whenever he wanted... Moreover, respondent was not physically restrained or threatened and was interviewed in a well-lit, average-sized conference room,where he was “not uncomfortable.”...

...Because he was in prison, respondent was not free to leave the conference room by himself and to make his own way through the facility to his cell. Instead, he was escorted to the conference room and, when he ultimately decided to end the interview, he had to wait about 20 minutes for a corrections officer to arrive and escort him to his cell. But he would have been subject to this same restraint even if he had been taken to the conference room for some reason other than police questioning; under no circumstances could he have reasonably expected to be able to roam free. And while respondent testified that he “was told . . . if I did not want to cooperate, I needed to go back to my cell,” these words did not coerce cooperation by threatening harsher conditions. (“I was told, if I didn’t want to cooperate, I could leave”). Returning to his cell would merely have returned him to his usual environment.

Taking into account all of the circumstances of the questioning—including especially the undisputed fact that respondent was told that he was free to end the questioning and to return to his cell—we hold that respondent was not in custody within the meaning of Miranda

Glenn Greenwald's reaction is here, and BMAZ at Empty Wheel is here.

My reaction: This is just the next, but not the last nail, in the Miranda coffin. See this Supreme Court 2010 decision in a case called Berghuis v. Thompkins, available here. And the Obama Administrations 2011 rules on delaying Miranda rights. Or the feds successful attempt to use the "Public safety exception" to avoid Mirandizing people like Umar Farouk Abdulmutallab. Another one: In 2010, the Supreme Court decided Maryland v. Shatzer (08-680), with Scalia writing the majority opinion. It held that a “break in custody” permits the police to resume questioning a suspect two weeks after he had refused and asked for a lawyer --without repeating Miranda rights. In 2004, the Court held only the statements obtained after a Miranda violation, not physical items obtained, such as drugs or guns, must be suppressed.

We've now moved from a test of whether a reasonable person would feel free to leave to a new test for inmates -- whether a reasonable person would feel free to stop the interrogation.

These facts are consistent with an environment in which a reasonable person would have felt free to terminate the interview and leave, subject to the ordinary restraints of life behind bars.

Background music: Hotel California, "You can check out any time you'd like but you can never leave."

The inmate in yesterday's case had every right to refuse to speak to these agents. He just didn't know it. Maybe we lawyers should write our clients in prison and enclose yesterday's opinion, and tell them not to get sucked in. If they aren't sure, they should just start humming Hotel California to themselves, so they remember they can check out of the interview room (by calling for guards to take them back to their cell) any time they want, even though they can't leave the "hotel."

Police have been craftily creating exceptions to Miranda for decades. Courts have been steadily approving them. None of these rulings change the fact that the inmates, just like those not in custody, don't have to talk. If they don't provide the police with any statements, the police won't have any statements to use against them.

I was not opposed to Kagan, even though I had concerns, because the alternative at the time, Judge and former prosecutor Merrick Garland, would have been so much worse. Other views on Kagan are here and here.

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    Since Kagan (5.00 / 3) (#1)
    by lentinel on Wed Feb 22, 2012 at 06:13:33 AM EST
    was Obama's choice, does this not continue the evaporation of any reasons to vote for him?

    Or, are we finally reduced to considering Obama as opposed to "so much worse"?

    You wrote in your linked to column of May 10, 2010,

    Obama was never going to nominate a liberal for the court. And there are some who say liberals' complaints about her (Kagan) are overstated.

    Apparently, they were not overstated.

    For those who are committed to voting for Obama no matter what, can't we at least threaten to withhold support until he gives us some verbal or written assurance that he would do better during his next term with respect to protecting our civil rights?

    To me, Miranda was a major step forward for insuring the rights of the accused. Now, under Obama and with the aid of one of his appointees, we have taken a major step backwards. Is he not to be held to account?

    And who made Garland the alternative? (5.00 / 1) (#2)
    by BobTinKY on Wed Feb 22, 2012 at 07:11:17 AM EST
    Very good point. (5.00 / 2) (#4)
    by lentinel on Wed Feb 22, 2012 at 07:47:45 AM EST
    The choice of the "much worse" alternative Garland was also Obama's.

    Time to take something in about Obama methinks.


    He gives verbal and written assurances (5.00 / 2) (#5)
    by Edger on Wed Feb 22, 2012 at 07:55:55 AM EST
    about all kinds of things every time he opens his mouth. It's what he does best. But they never constrain him from doing what he was going to do anyway. He just grins while everyone else bears it.

    "You can take that to the bank" -- BO


    True. (5.00 / 1) (#10)
    by lentinel on Wed Feb 22, 2012 at 08:50:41 AM EST
    I was thinking about that as I wrote those words about assurances from Obama. They're not worth anything.

    But I was directing that thought toward people who are telling us that they will support Obama because of the quality of people they project that he will choose for the Supreme Court.

    Wouldn't they, especially those passionate about the rights of the accused, want to exact some assurance from Obama - even if it later proves to be ultimately worthless?


    Well, to borrow (5.00 / 2) (#12)
    by Edger on Wed Feb 22, 2012 at 09:00:15 AM EST
    jbindc's lead here, it would be nice if those people would post tonights lottery numbers here today. It would be a easy way for them to give people some confidence in their predictions.

    Neither Kagan NOR Sotomayor... (5.00 / 4) (#3)
    by Dadler on Wed Feb 22, 2012 at 07:44:48 AM EST
    ...looks good in light of Kentucky vs. King either (I think that's the recent warrantless police search case, if it's not forgive me).  Both justices, right now, are coin flips IMO when it comes to a few too many important issues.

    Thats the case... (5.00 / 2) (#7)
    by kdog on Wed Feb 22, 2012 at 08:18:45 AM EST
    smell weed walking the beat, you're free to break down doors at will, no warrant required.  Somebody recalibrate the checks and balances, the power of the state ain't being checked nor balanced!

    The Supreme Court boogeyman ain't so scary no more is it.  Authoritarian statism rules the day no matter which brand is doing the nominating.



    Tsk Tsk; they're both doing what's best for ... (none / 0) (#6)
    by Mr Natural on Wed Feb 22, 2012 at 08:05:54 AM EST
    ... uh

    The Court has watered down (5.00 / 2) (#16)
    by KeysDan on Wed Feb 22, 2012 at 10:14:16 AM EST
    Miranda so as to make it quite fluid.  Indeed, so much so that it has now assumed a new physical form.  For those already in prison and being "interviewed" about a situation not necessarily related to the reason for their incarceration, Miranda morphs into "you are free to return to your cell, just ignore the police-envirnonment, the armed interrogators, and the fact that you can't return to the cell unescorted. ...  besides, we really will not hold it against you if you do not cooperate."

    And, in Field's case, all of this intimidation was underscored by withholding his medications, an antidepressant and immuno-suppressants owing to his kidney transplantation.

    As for Merrick Garland, we may not have seen the last of him.  He is the kind of jurist who might be nominated by President Obama in a second term, he is "confirmable" in this political environment (Orrin Hatch's favorite, if Orrin, himself, survives).

    No surprise (2.00 / 1) (#9)
    by Abdul Abulbul Amir on Wed Feb 22, 2012 at 08:29:59 AM EST

    Police have been craftily creating exceptions to Miranda for decades. Courts have been steadily approving them.

    The courts created Miranda in the first place.  So it is their creation to adapt as they see fit.  It is the courts not the police that create the exceptions.

    Since this chap was in the clink he had almost certainly been read Miranda once before.  If you have been read your rights once it is absurd to claim you are unaware of those rights.

    For the purposes of criminal defense anything less that rereading Miranda before each and every question is suspect.


    And what is the harm... (5.00 / 2) (#11)
    by kdog on Wed Feb 22, 2012 at 08:57:10 AM EST
    in reading it everytime?  It takes all of 30 seconds tops.  If it prevents police intimidation and coerced confessions from innocent people it is well worth a 2 hour warning documentary, never mind a 30 second warning.  It is a very necessary check on the awesome power given to law enforcement.

    Interrogators find the loopholes, and the courts ok them or shoot them down if they are challenged.  The courts can't monkey with Miranda without a case before them, the cops shoot Miranda angles all the time, pushing the envelope.  And the courts as of late are happy to sign off, after the fact.  


    And, (none / 0) (#13)
    by lentinel on Wed Feb 22, 2012 at 09:01:32 AM EST
    why do the Brits have so little trouble with reciting rights to people? I have not personally witnessed this, but I have seen it portrayed in films dating from the 1940's to the present as a matter of course.

    Ah, but (none / 0) (#17)
    by jbindc on Wed Feb 22, 2012 at 01:57:12 PM EST
    in Britain, those rights include the fact that a defendant's silence may be used against him and it's easier for police to take "body samples" .

    Let's also not forget that those rights also allow police greater latitude in conducting searches.


    This was a new charge (none / 0) (#14)
    by themomcat on Wed Feb 22, 2012 at 09:13:18 AM EST
    unrelated to his arrest for disorderly conduct. This ruling has terrible implications in future cases.

    Failure to give the Miranda warning (none / 0) (#8)
    by ruffian on Wed Feb 22, 2012 at 08:28:17 AM EST
    is intimidation in and of itself, it seems to me. Trying to get inside the head of the inmate being questioned, who probably knows in his head that he has the right to remain silent, and maybe even knows he has the right to terminate the interview, I think the fact that the Miranda warning was not given would make me believe that insisting on my rights would be futile.

    And of course that is why the police have such resistance to giving the warning. They know that it is not just passing along information - it is giving encouragement to stand up for your rights.

    Such a brutal world.

    The best thing about (none / 0) (#15)
    by eric on Wed Feb 22, 2012 at 09:14:53 AM EST
    Miranda is that it creates a nice bright line rule.  If you were read your rights, then everything you say can be used against you.  If you aren't read your rights, then it we end up analyzing all of the circumstances of the detention, interrogation, etc.  I would think that cops would like Miranda.