For years, some in law enforcement have considered giving Miranda warnings, even when the suspect is NOT in custody, to be some sort of inoculation against a motion to suppress. But the literal language of those warnings contradicts the reality of the law. And now SCOTUS may get to write about it:
What advice do you give law enforcement engaging in noncustodial interviews?
I advise that conducting this type of interview is an advanced technique that may take great effort to properly utilize. When it works, a valuable tool. I think we need to work on training officers when they need give the warnings mid-conversation even after starting off non-custodial.
Custodial interrogation, with its complex web of Miranda-based case and statutory law, is far more advanced than a simple noncustodial interview. So long as an officer has a clear understanding that he is NOT restraining the suspect in any manner and that the suspect is free to leave at any time, the rest is easy.
Just ask questions and record the answers. No special questions before beginning. No waivers to establish. No predicate.
Noncustodial interrogation becomes complicated only when officer try to blend the Miranda rules with circumstances that don't trigger Miranda. And, from an appellate point of view, I understand why that can get complicated when defending an interview that goes into the grey area of detention short of custody.
We need to talk.
As long as it's noncustodial.
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