In June 1966, the U.S. Supreme Court handed down its most recognized decision regarding criminal law, Miranda v. Arizona.
The decision established a significant Fifth Amendment Constitutional right: before the prosecution can use statements, either inculpatory or exculpatory, given by a person to law enforcement while in custody, it must be shown to the trial court that the police advised the defendant of 1) their right to remain silent; 2) that any statement made can be used against them; and 3) right to have the presence of an attorney either retained or appointed.
The court added that this right can be waived if the waiver is made knowingly, voluntarily, and intelligently.
A tremendously controversial decision from the outset, Miranda has been the subject of many revisions and interpretations throughout its 57-year existence. One of the first legal controversies about the decision was: what constitutes “in custody”?
In the Fifth Circuit, that question is a “mixed question” of law and fact. This federal court of appeals concedes that the word “custody” is a “term of art” that “should focus on all of the features of the interrogation” to determine whether the circumstances of the interview “are consistent with an interrogation environment in which a reasonable person would have felt free to terminate the interview and leave.”
The court employs a two-step analysis of what constitutes an “in custody” interrogation.
First, the trial court must examine the freedom of movement a person subject to questioning has based on the totality of the circumstances involved in the questioning; and, second, the court must determine if the questioning took place in an interrogation environment as was the case in Miranda.
This two-step analysis requires, first, a finding that the person being questioned understands that there is an official restraint on their freedom of movement to constitute an actual arrest. The U.S. Supreme Court has offered the following guidance in this analysis:
- The length of the questioning;
- The location of the questioning;
- The accusatory, or non-accusatory, nature of the questioning;
- The amount of restraint on the individual’s physical movements; and
- The statements made by the police regarding the individual’s freedom to move or leave.
The Fifth Circuit has decided that an “in custody” determination must be made based on these factors collectively, not individually.
The second finding under the two-step “in custody” analysis is whether the environment of the questioning has the same inherently coercive pressures as the station house questioning involved in Miranda.
The Miranda court specifically pointed out that the “practice of incommunicado interrogation is at odds with one of our Nation’s most cherished principles – that the individual may not be compelled to incriminate himself. Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.”
That is the essence of an unlawful interrogation.
That’s why the Miranda court pointed out that the constitutional safeguard against such unlawful interrogations is the presence of counsel which “would insure that statements made in the government-established atmosphere are not the product of compulsion.”
On February 8, 2023, the Fifth Circuit Court of Appeals narrowed the parameters of the “in custody” station house-type statement.
The appeals court in United States v. Bleuler that statements made by a defendant in a foreign country police interview could be used in a federal criminal fraud trial.
In Bleuler, a grand jury returned a nineteen-count indictment charging Defendants and others with: (1) conspiring to commit money laundering, in violation of 18 U.S.C. § 1956(h); (2) conspiring to violate the Foreign Corrupt Practices Act (the “FCPA”), in violation of 18 U.S.C. § 371 and 15 U.S.C. §§ 78dd-2(a), 78dd-3(a); and (3) money laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(B)(i), 2 (Rafoi) and 18 U.S.C. §§ 1956(a)(2)(A), 2 (Murta).
“Paulo Jorge Da Costa Casqueiro Murta, a citizen of Portugal and Switzerland, was one of scores of people indicted for several conspiracy and money laundering charges in connection with what the Fifth Circuit described an “an international bribery scheme wherein U.S.-based businesses paid bribes to Venezuelan officials for priority payment of invoices and other favorable treatment from Venezuela’s state owned energy company.”
Murta moved to have statements he made to Portuguese authorities in a March 2015 interview suppressed.
That interview was conducted at the request of U.S. authorities. It lasted “multiple” hours in “a local criminal investigation office” in Portugal.
Murta had counsel present, but despite counsel’s presence, he was never read his Miranda rights.
The interview with Murta began at 10:00 a.m. It concluded at 6:50 p.m. During that period, there was a “lunch break” and “two fifteen-minute breaks.” Seven hours into the interrogation, Murta began reviewing and revising the “interview notes” the interrogators had prepared.
Two U.S. government officials were present during the interview. Most observers would view this as an in-custody interrogation. U.S. authorities were investigating international criminal activity. Portuguese authorities were assisting in that investigation.
The trial court granted Murta’s motion to suppress, finding that he was “restrained” because Portuguese law required him to attend the “interview” and remain until completion.
The appeals court, however, concluded that the interview room was not “the isolated police-station setting that brings with it the compulsion to speak where Murta was accompanied by his attorney to guard him against intimidation, coercion, or trickery.” The Fifth Circuit reversed the district court, saying:
“The totality of the circumstances indicates that a reasonable person in Murta’s position would not have equated the restraint on his freedom of movement with formal arrest. But in the unlikely event that a reasonable person in Murta’s situation thought he was “in custody,” no evidence suggests that the environment in which Murta was interviewed was tantamount to a station-house interrogation as contemplated by Miranda
Essentially, the appeals court found that the presence of counsel was a sufficient safeguard to remove the Portugal “interview” from the “station house questioning,” which was the main issue in Miranda.
In effect, the appeals court distinguished a “compulsory interview” with the presence of counsel from a “station house” interview without counsel.
Miranda requires specific verbal warnings before an “in custody” interview or interrogation. It should be that simple.
Portuguese law required attendance at the interview until its completion. Murta had no control over its completion and was in custody for over eight hours. He was “in custody” by law and required to stay until Portuguese authorities said the interview was complete. His interrogation was conducted at the request of the U.S. government and attended by U.S. law enforcement agents.
As we pointed out in June 2010, this Fifth Circuit decision is just another “continued assault” on Miranda.