Anthony Bandiero
Attorney and Senior Legal Instructor, Blue to Gold Law Enforcement Training
Recorded at IACP 2025 in Denver, Colorado, in front of a US Postal Service command vehicle. The question comes from an officer in Riverside, California. It starts as a Fourth Amendment waiver question and turns into a Fifth Amendment question.
Hello everyone, it’s Anthony Bandiero, attorney and senior legal instructor for Blue to Gold Law Enforcement Training, bringing you another roadside chat from IACP 2025 in Denver, Colorado. Behind me is obviously a very nice tactical vehicle, a command center. It’s for the US Postal Service. All I’ve got to tell you is, the next time my mail gets stolen, I want this bad boy to show up on scene and take over.
So the question comes from an officer in Riverside. This is going to be a parole or probation question. Well, it’s not going to be a probation question per se, but it’s going to involve that fact pattern. So stay tuned even if you’re not a California officer.
The officer says, all right, so we have a person who’s on parole or probation. We detain them and we end up searching them because they have a Fourth waiver.
Do you need suspicion to do a parole or probation search?
Now one thing to know is that California really has the best case law when it comes to searching people on parole and probation. It’s really a mic drop type of situation there. With their rules, they do not require any suspicion to do a parole or probation search. And anybody can do them. Any officer can do them.
You can have like CHP. They’ll stop a car, the driver or passenger, they find that the passenger is on search terms. They search the passenger and those areas around the passenger that they have access to.
And a lot of states do not allow that. Most states, the search terms are done by the parole or probation officer. They can allow local officers to do those searches. Other states require like reasonable suspicion to even do the search. Not California. And some other states like Illinois and so forth are also like that. But California has a lot of case law on this particular issue.
Is asking “what is this?” during the search a Fifth Amendment problem?
Now going back to the question at hand. We do a Fourth Amendment waiver search. We pull out a baggie from their pockets and they have, it’s narcotics. We then ask them, hey, what is in this? And they say fentanyl. They say cocaine and so forth.
Is that a violation of the Fifth Amendment?
Well, let’s look at when does Miranda apply. Miranda applies under three circumstances.
Number one is, the person is in arrest-like custody. That’s going to be the issue here, by the way. Are they in arrest-like custody?
Number two is, are you asking a question that can elicit an incriminating response? That clearly happened here.
Number three is, is it a known officer? Generally speaking, Miranda does not apply to your undercover officers. Even if the person is in custody, even if you’re asking incriminating questions. Like for example, you put an undercover officer in a jail cell, and the guy that you’re talking to just has no idea you work for the police. He just thinks you’re another inmate. And the undercover officer says, hey, did you do it? And he’s like, hell yeah, I did it, and this is how I did it. Those statements are coming in, as long as what? As long as their Sixth Amendment right to counsel did not apply.
What counts as arrest-like custody?
But going back to our question at hand, the real issue here for the court is going to be, was that person in arrest-like custody?
Well, arrest-like custody is based on the T to the O to the C, totality of the circumstances. And also, in order to know when custody, you have to understand why Miranda. Why do we have these Miranda rules?
Well, we have them because the Supreme Court in the 1960s was not very happy with our beloved profession. They were not happy that officers from around the country were purposely using sleep deprivation and food deprivation, and maybe a little bit of, I’m not going to say like the third degree, that clearly, you know, beating people to get confessions out of them. But there was a lot of coercion, quite frankly, going on in law enforcement in the 1960s and before, and the Supreme Court did not like that.
One of the pieces of evidence in the Miranda case was a training manual that actually told officers how to psychologically and physically overcome a person’s unwillingness to speak. So they were not happy with that. So they said, you know what, let’s level the playing field, and let’s have Miranda.
So Miranda is all about trying to reduce the natural coerciveness of police dominated custody.
So if you have a person who’s on scene and they’re not actually in custody, they’re not under arrest, maybe not in handcuffs, but they’re just being searched on the parole conditions, that person with those facts is not in Miranda custody. Not yet. They’re not under arrest either. So they’ve not been formally arrested, and they probably are not in Miranda custody.
Does “not free to leave” mean Miranda is required?
The one thing that I really want to fix here in my career is to try to get people to stop saying that people require Miranda when they’re not free to leave. I have heard this a thousand times.
Well, not free to leave, certainly you have to have that factor. If they feel free to leave, then you really can never have a Miranda issue, because they’re not in any kind of custody, they’re not in any kind of detention.
But though that is a required element of Miranda, it’s not sufficient in itself to require Miranda warnings. You need something more than that. You need the handcuffing. You need the surrounding by a bunch of police officers. You need the guns pointed at the person just moments before. You just need that domination of that police atmosphere.
And I just don’t think you have it simply because you’re reaching into a guy’s pockets legally and pulling out a bag of substance and saying, what is this?
Is there a “threshold question” exception to Miranda?
Finally, I have heard in my career that some say, Anthony, that’s lawful because those are threshold questions.
And I had to ask these people, like, what do you mean by that? I guess I understand conceptually what you mean by a threshold question, but what do you mean by it? And they’re like, well, if you’re asking something just as a threshold, it doesn’t violate Miranda.
I’ve never read that case. And maybe a circuit court out there has used that phrase, threshold questions, but what they probably mean is questions when the person is not under Miranda type custody, and they just called it threshold questions.
Regardless of what you call it, there is no threshold exception. The person is either in Miranda type custody or they’re not. If they’re not, we don’t have a Miranda problem.
And there’s your answer.
The short version
- California does not require any suspicion to do a parole or probation search, and any officer can do one. Most states are not like that.
- Miranda applies under three circumstances: arrest-like custody, a question that can elicit an incriminating response, and a known officer.
- Asking “what is this?” clearly elicits an incriminating response. That part is not the issue.
- The issue is custody. Arrest-like custody is based on the totality of the circumstances.
- A person being searched on their parole conditions, not under arrest, maybe not in handcuffs, is probably not in Miranda custody. Not yet.
- Not free to leave is a required element of Miranda. It is not sufficient by itself. You need something more.
- Something more looks like handcuffing, being surrounded by officers, guns pointed at the person moments before. That domination of the police atmosphere.
- There is no threshold question exception. The person is either in Miranda type custody or they’re not.
I hope this helps you guys. We’re here to help you in any way we can.
Related from Blue to Gold
- When Is Miranda Required?
- When Does Miranda Apply Over the Phone?
- Reasonable Suspicion Vs Probable Cause
This article is an edited transcript of Roadside Chat EP#941. It is legal training, not legal advice. Check your state law and your agency policy, because both can be more restrictive than the Fourth Amendment.
