where there has been such a restriction on a person's freedom as to render him
d. In Mathis v. U.S., 391 US 1, 20 L.Ed.2d 381, 88 SCt 1503 (1969), the
defendant was questioned by an Internal Revenue Service (IRS) agent, while he
(the defendant) was in jail on an unrelated conviction. The defendant was held
to have been "in custody." The opposite result came in California v. Beheler,
463 US 1121, 77LEd2d 1275 103 SCt 3517 (1983). There, the suspect "voluntarily
agreed to accompany police to the station house, although the police
specifically told (him) that he was not under arrest."
He was questioned
without being advised of Miranda rights. After a 30-minute interview, he was
permitted to return to his home. The Supreme Court held that the suspect "was
neither taken into custody nor significantly deprived of his freedom of action.
Indeed, (his) freedom was not restricted in anyway whatsoever."
e. The rule is that "a person subjected to custodian interrogation is
entitled to the benefit of the procedural safeguards enunciated in Miranda,
regardless of the nature or severity of the offense of which he is suspected or
for which he was arrested." Berkemer v. McCarty, 468 US 420 82 L.Ed.2d 317 104
SCt 3138 (1984). The right to counsel, again, exists separate and apart from
Article 31, UCMJ. Where the suspect is not in custody, Article 31 may apply,
but not the right to counsel under Miranda. At the same time, FBI agents who
are not acting on behalf of the military (as our agents) are not required to
give Article 31 warnings. They are not persons "subject to the code." If they
interrogate a suspect "in custody," however, the right to counsel under Miranda
will apply (wholly apart from Article 31). U.S. v. Temperley, 47 CMR 237 (CMA,
f. California v. Beheler, 463 US 1121 77 L.Ed.2d 1275 103 SCt 3517 (1983),
held that "the circumstances of each case;" i.e., the "totality of the
circumstances," will determine whether or not custodial interrogation has
occurred. For the investigator, the safest procedure is to advise the suspect
of BOTH his Article 31 rights, as well as the right to counsel under Miranda.
This avoids unnecessary confusion (and litigation) as to whether or not the
suspect was in custody. The language of MRE 305(d)(1)(A), remember, speaks in
terms of a suspect who, among other things, "could reasonably believe himself
or herself to be in custody."
If you fail to include advice concerning the
right to counsel, you are taking a risk. Based on the suspect's testimony at
trial, the court may find that he was, in fact, in custody (or so he reasonably
believed). The suspect, in other words, may be able to convince the court that
he really was not free to leave, or that such is what he reasonably believed.
Remember, Miranda noted the inherently coercive nature of police station
Do not gamble here -- the stakes are too high.
suspect of all his rights. It is far better to be safe than sorry. If the
right to counsel does apply (due to the existence of custodial interrogation),
your failure to include proper right to counsel warnings will trigger the
exclusionary rule. This means that the confession which you obtain will not be
admissible at trial against the accused.
Do not speculate and gamble on a
court finding that the suspect was not in custody. Always play it safe.