Phone Conversations with the Police are Not Protected Under Miranda

The law of Miranda v. Arizona requires a Miranda reading of rights whenever there is a custodial interrogation of a suspect.  This means first that there is a custodial arrest.  Second, there is an interrogation.  If either is absent, there is no violation of Miranda.

The New Mexico Court of Appeals had the opportunity to address the application of Miranda v. Arizona to voluntary phone conversations with police.   The court found  in  State v. Hernandez that such voluntary phone conversations do not involve an arrest, and at least in the facts of the case, did not involve an interrogation.  The basic requirement for a custodial interrogation is that the defendant be under arrest, or that his or her freedom is so restrained as to equal an arrest.  To constitute an arrest, the defendant must not be free to leave, or the circumstances must be such that a normal citizen would not feel free to leave under the circumstances.

The Court in State v. Hernandez makes it clear that there is no such formal arrest or restraint when the suspect voluntarily converses with a police officer over the phone.  State v. Hernandez involved call to police to a home that had received numerous threatening calls.  Following each call, the caller would shoot at the home.  The police were called.  Upon arrival, the officer answered a phone call that allegedly came from the shooter.  The defendant’s phone number was identified by caller ID.  The caller voluntarily conversed with the officer identifying himself by name and identifying himself as the shooter.

The Defendant’s attorneys successfully suppressed the Defendant’s statements at trial under Miranda v. Arizona.   The Court in State v. Hernandez found that Hernandez was neither in custody nor under interrogation.  He voluntarily initiated the phone call.  He voluntarily engaged in the conversation.  Throughout the call, he was free to hang up the phone.

The lesson is don’t make this call, don’t accept this call.  If you must make a call, and you feel compelled to talk, call an attorney and talk to the attorney.