Val Van Brocklin
Author: Val Van Brocklin

In Miranda v. Arizona (1966), the U.S. Supreme Court ruled that the Fifth Amendment requires police to advise suspects of their right to remain silent and to obtain an attorney before interrogating them in police custody. “Custody” for Miranda purposes occurs when under the totality of the circumstances, a reasonable person would consider himself to be deprived of his freedom to the degree associated with a formal arrest.

Miranda’s central concern was to protect the individual right against self-incrimination from the inherently coercive nature of custodial interrogation. Statements and evidence obtained in violation of Miranda cannot be used against the defendant in court.

Terry’s Fourth Amendment exception

The Supreme Court in Terry v. Ohio (1968) established an exception to the Fourth Amendment’s requirement of probable cause before seizing and searching someone.

Terry held that police may briefly stop a person and investigate based upon reasonable suspicion the person is committing, has committed, or is about to commit a crime. If the officer additionally has reasonable suspicion that the individual is armed and dangerous, the officer may perform a limited search for weapons, generally via a “pat down” of the outer clothing. Such preliminary investigation does not require Miranda warnings.

In Berkemer v. McCarthy (1984), the court held that the roadside questioning of a motorist detained in a “routine” or “usual” traffic stop is more like a Terry stop and so does not constitute “custodial interrogation” that would trigger Miranda.

While Miranda was intended to protect the right against self-incrimination, Terry balanced the Fourth Amendment’s protection against the public’s need to have police investigate crime – and be safe while doing so.

The issue

In response to evolving public safety challenges, police use of Terry “stops” has expanded significantly since the case was decided – a move sanctioned by many courts. Along with the expanded use of the “stops,” courts have also recognized increased dangers to police in the 50 years since the Terry case. Lower courts have broadened the types of offenses, persons and situations deemed to pose a danger. They’ve also broadened the measures officers may employ to ensure their safety during a legitimate Terry stop to include handcuffing, putting suspects in police cruisers, drawing weapons and demanding suspects lie face down on the ground.

While such police conduct has been found reasonable by some courts within Terry’s exception to the Fourth Amendment, it can create the “custodial” situation that Miranda held might violate the Fifth Amendment.

Courts’ line drawing is split and squiggly

This has led to a federal circuit split on whether coercive – albeit reasonable – Terry stops constitute Miranda custody.

The First, Fourth, Eighth and D.C. Circuits have rolled the Fifth Amendment “custody” issue into the Fourth Amendment “reasonableness” determination. In those circuits, if the stop meets the Terry requirements – and is, therefore, reasonable – Miranda warnings aren’t required even if the circumstances were coercive. This is a misunderstanding of the distinction between the two rights – according to at least one legal scholar. The Second, Seventh, Ninth and Tenth circuits holds that a valid Terry stop might require Miranda warnings if the circumstances are coercive enough that they rise to a level contemplated by Miranda.

Adding to this inconsistency, is the uncertainty of the “totality of the circumstances” test used to determine “custody” for Miranda purposes. These circumstances may include:

    The location of the contact and whether it’s familiar to the suspect or at least neutral or public. The number of officers involved. The degree of physical restraint used. The duration and character of the interrogation. The language used to summon the suspect. The extent to which the suspect is confronted with evidence of guilt. Whether the suspect or police initiated the contact.

But most courts acknowledge their list of factors isn’t exhaustive and the courts vary on the weight to give individual factors. Even the Supreme Court has conceded, “[T]he task of defining ‘custody’ is a slippery one.”

Further muddying the waters is that state courts aren’t necessarily bound by federal circuit court opinions. State courts may grant citizens more Fifth Amendment protection under their constitutions than federal courts grant under the U.S. Constitution.

What’s a cop to do?

First, you need to have your local prosecutor clarify your jurisdiction’s case law on when a valid Terry stop might require Miranda warnings, if ever.

Second, consider the factors above – which the courts consider – when deciding what investigative and protective measures, tone, duration and location to employ for purposes of your Terry stop. Articulate in your police report the reasonable suspicion that supports your investigative stop. Separately articulate the reasonable suspicion that supports any protective measures you took. It isn’t enough to just say you did something for “officer safety.” You must articulate a reasonable suspicion for the particular danger(s) you are protecting against.

Third, while courts have come to recognize that the “officer safety” aspect of a Terry stop might justify more than a simple pat down, officers can mitigate the coercive aspects of additional protective measures. Consider, when consistent with officer safety, communicating to the suspect the brief or temporary nature of the protective measure. Informing a person the officer has a few brief questions to address their suspicion of criminal activity or that they’re being handcuffed only out of officer safety concerns may allay a courts’ concern about the coercive effect of additional protective measures during a Terry stop.

Lastly, in the words of “Hill Street Blues” Sergeant Phil Esterhaus, “Let’s be careful out there.”


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