I'm looking for caselaw that would help support the admissibility of an oral confession in the following scenario:

Police respond to a residence when a neighbor reports a "domestic disturbance." Upon arrival police first see victim in the yard. Victim has a cut on her chin and says her husband hit her. She points him out to the officers as he is standing at the other end of the yard. An officer approaches Husband and simply asks, "What's going on here?" Husband tells the officer that he hit his wife because she is seeing another man. Officer then arrests him.

Seems to me the question is whether or not the suspect is in custody at the time he makes the oral confession. I've wrestled with applying the custody factors talked about it the prevailing cases but I'm not satisfied one way or the other on the custody question. I would think this is a scenario that plays out pretty often when investigating domestic disturbances and when investigating a crime, on scene, when the victim and the perpetrator are standing around.

Does anybody have some caselaw where the facts are similar to this one, or perhaps a strong opinion about how the custody factors should be applied to this situation?

I can't imagine any reasonable judge deciding that this guy was actually in custody. At most, the guy is temporarily detained for investigative purposes, similar to the driver who has been pulled over for bad driving and smells of alcohol but has not gone through the FST's yet. All kinds of caselaw out there standing for the proposition that even though the driver is not free to leave at that point, he is simply detained (not arrested) for investigative purposes and anything he says until such time as he is arrested is admissible. I would think you could use that caselaw to make a close analogy.

Take a look at Mutz v. State, 862 S.W.2d 24 (TEx. App.--Beaumont 1993, pet. ref'd). It's been cited quite a bit. In that case, the police had already been called out once to the house. After they had "calmed things down" they left, only to be called back later by Mutz who claimed his wife shot herself. While the paramedics checked the wife, the officers took Mutz outside and questioned him about what had happened. The court spent quite a bit of the opinion on investigative detention questions versus custodial interrogation.

Janette Ansolabehere

Texas law has been modified recently to give police some room to work in this gray area between noncustodial and custodial -- at least for a felony offense. Last session, the Legislature gave police the right to make a warrantless arrest of:

a person who makes a statement to the peace officer that would be admissible against the person under Article 38.21 and establishes probable cause to believe that the person has committed
a felony. Tex. Code Crim. Pro. art. 14.03(a)(5).

Police assume, if they are going to have to arrest the defendant, then he must be in custody when they talk to the defendant. Not true. As the above post point out, merely approaching a citizen and talking to them, even if you anticipate the conversation will result in incriminating information, does not trigger the Miranda requirements. Those requirements are only triggered by the presence of both custody and interrogation.

While the officer's question is likely to be considered interrogation, the defendant's status is not one of custody. It may quickly ripen into custody, but it is not custody at the point of contact.

I think there probably is a detention. If the guy had started walking down the street away from the scene do you think the cop would have let him go? Probably not. He would have stopped him, told him to wait a minute while he asks some questions, and then done his investigating. The test for whether he is actually in detention is not whether he feels free to leave. That's confusing the situation with an actual arrest. Fact of the matter is, he probably wasn't free to leave. But, I repeat what I said in my earlier post, it doesn't matter whether he was free to leave. He was not under arrest. Police officers need to understand that the rules of temporary investigative detention are not the same as under arrest when it comes to admissibility of oral statements.

Miranda is not triggered by temporary detention. We know that from traffic stops. Obviously, during a traffic stop the driver is temporarily not free to go. But that is not the test for Miranda.

The test for Miranda is custody. Custody is a permanent inability to leave. And a temporary detention matures into custody when a reasonable person would not believe he is going to be free to go upon completion of the investigation.

And, once the guy says, yeah, I smacked her, any reasonable person would believe an arrest is going to happen. In fact, Texas law requires the officer to make an arrest in such a domestic violence situation.

But, until the officer gets something confirming the domestic violence, I don't think a reasonable court would find that there was the sort of custody that triggered Miranda.

And that would be consistent with the historic underpinnings of Miranda. That case and the warnings were generated by the circumstances of officers making arrests, taking defendants back to the police station, and undertaking grueling interrogation.

An officer approaching a defendant in his own yard, without handcuffs being placed on the defendant, is hardly the sort of problem Miranda was designed to solve.

Another scenario of police "non custodial" oral statement. After attending the seminar on confessions I would like input on the following scenario.
Information for arrest warrant processed in May, but no arrest warrant issued until after def comes voluntarily (in DA vehicle) to DA office with DA investigators 6 weeks later in Jun. DA investigator gives Miranda but tells def he is free to leave, not under arrest. Def makes oral statements but is not under arrest. However, before def leaves warrant is issued and def is arrested. Issue on appeal - 38.22. No recording, no written stmt. - in custody and interrogated because DA investigator knew warrant would be forthcoming. Argument for lack of custody - def was told that he did not have to come and that he was free to leave. No arrest until after oral stmts were made and interrogation was essentially complete since def had given investigators consent to search his house and they were getting ready to leave to do that.

You describe the scenario (except for the warrant) anticipated by the change in law to Chapter 14, CCP. What does an officer do after hearing a confession to a felony offense?

The officer can let the defendant go home and make a warrant arrest later. Or, the officer can make an immediate warrantless arrest based on the existence of probable cause and an admissible confession.

Now, the trick is to get a trial and appellate court to later believe it when you say the defendant was free to go at the time he made the confession.

That's not very credible if you had a warrant and intended to arrest immediately upon obtaining a confession. It also loses credibility when the interrogating officer begins the interrogation with Miranda warnings. It's possible to win that litigation, but why do you want to create the opportunity for the defendant to make the argument?

We encourage officers, if they want the court to believe the interrogation was conducted in a noncustodial atmosphere to:

1) Tell the defendant at the beginning he/she is not in custody;
2) Do NOT read Miranda warnings (actually, we recommend that the officer give the NonMiranda warnings -- "You are not under arrest. You are free to leave at any time. And I just want to ask you some questions."
3) Have the defendant include an admission in the written or recorded statement that he was not in custody at the time he made the statement;
4) Supplement the offense report with information showing the interrogation was noncustodial;
5) Do not arrest the defendant until he at least has left the building. Better practice is to let the defendant get home and meanwhile go get a warrant. If you are concerned about the defendant fleeing, put some surveillance on him while you obtain a warrant.

This works. Try it.

Bill, thanks for the link to the FBI newsletter. They have great articles, and I didn't know the FBI had many of them posted as PDF files on the internet.

For another great article, go to this link and click on the PDF or HTML version of the January 2003 issue to download their magazine that explains when and how you can intercept and record confessions WITHOUT HAVING TO TRIGGER MIRANDA WARNINGS.

This article supports much of what TDCAA lets me teach in the regional series on Confessions. The single best way to avoid having a Miranda violation is to avoid Miranda.

Have I mentioned this before?

Oh, Bill, don't get me started on those consent searches. We have discussed that issue on this site before.

DPS teaches troopers to get consent only after finishing their traffic stop. Problem is that courts then find that the consent was involuntary because the officer no longer had a reason for talking to the driver.

Consent in a traffic stop should be obtained at the earliest opportunity and well before the completion of the standard stuff that can be done during the stop (request for DL and insurance and checking for warrants).

quote:

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Originally posted by John Bradley:

A In fact, Texas law requires the officer to make an arrest in such a domestic violence situation.

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Not to hijack the thread, but I have argued this also. I've stated that the law said/says "shall arrest", however I can no longer find this mandate to back up my argument.

I know it used to say it in the 90's, but now I'm told its discretionary. If its still on the books, what is the section or article?

CCP Art. 14.03 (a) (4) says "may" arrest for assault-family violence. CCP Art. 14.03 (b) says "shall" arrest for violation of a protective order.

In my last life as a cop, and this life, I have run into many officers who believe that an arrest is mandatory in assault DV cases. Every time it is because someone in the academy, someone in their chain of command, or their departmental procedure tells them "shall". Their "shall" is for liability reasons should the offender further assault or kill the victim in the case of no arrest.

And although the names escape me - at least those of us with some grey hairs remember the based on real-life TV movie about the abusive hubby who stomped on his wife's neck, crippling her while the police watched. That's bad. So the liabilty concerns are real.

Thanks. I guess I should say that in the early '90's we were told that we "shall" arrest. I'm sure they were telling us that it was in the book as "shall", but it was too long ago to remember. I've been taught misinformation before.

Once again, sorry for hijacking the thread.