Another roadside chat, recorded at the IACP conference in Boston in 2024. This officer is a lieutenant with the Department of Veterans Affairs, and he asked about calling a suspect over the telephone to inquire whether they committed a suspected crime.
Do you have to read Miranda when you interview a suspect over the phone?
So you want to talk to a suspect about a crime, but you want to do it over the phone. Do you have to read them Miranda, or are there any Miranda issues applicable in that scenario?
So he says, all right, so calling a suspect over the telephone and inquire if they committed a suspected crime or not. So if the officer alleges that the suspect maybe committed a crime, is asking things that could elicit an incriminating response, is there a Miranda issue here? What would be the best practice for telephone interviews, and what is the court’s opinion as to this evidence?
Well, I definitely got your answer, and actually a pretty easy answer. No Miranda is required unless that person happens to be locked up in a jail and you’re calling them over the phone. That’s like the only time that Miranda is going to be implicated.
What are the three things that make Miranda required?
I want you to remember the three things about when Miranda is required.
Number one is the person has to be in custody. They have to be in custody, arrest or arrest-like custody. Either formal custody, or the level of custody has to be so high that it’s basically in line with a formal arrest. So that leaves out our traffic stops, our DUI investigations, our investigative detentions. Those are not custody for the most part.
The second thing is asking incriminating questions. That’s what’s happening here, so check out the box on that one.
And the third thing is a known police officer. I call this the Perkins rule, Illinois versus Perkins, where the person has to know that you are working for the government. Well, we definitely have that here. Hey, I’m with the VA, I’m investigating what you did at the hospital while you’re getting your care.
So we have two out of three, but you need all three in order to have a Miranda issue. Because we have no in custody, we do not have Miranda.
Should you read Miranda to a suspect sitting at home in their pajamas?
Now I got to tell you, I have seen officers read Miranda over the phone when that suspect is in their jammies at their house. And I got to tell you, I’m sorry, but I did laugh. And it’s comical, because it’s like, why are you doing that? I’m not laughing at you, I’m laughing with you. Maybe you can laugh with me too. But like, why are you doing that?
Like, clearly they’re not even remotely detained. Even if you’re like, you better not hang up that phone on me, I mean, they can just hang up the phone. A reasonable person knows that they have that option.
So don’t do it. And if you do it, all you’re doing is creating that opportunity, you’re opening up the door for them not to talk to you.
Are there any court cases on Miranda during a phone call?
So the cases on this do not involve people at homes, because how do you litigate such an obvious answer? But we do have cases about people in jail. So there’s your answer.
Don’t read Miranda to people at home. Try to get them to open up themselves, get a confession. And yes, I said get a confession, as the US Supreme Court has said confessions are good for society. It is good when people come clean about their sins, their criminal activity.
Until next time my friends, you stay safe.
The short version
- No Miranda is required unless that person happens to be locked up in a jail and you’re calling them over the phone.
- Number one is the person has to be in custody, arrest or arrest-like custody. That leaves out our traffic stops, our DUI investigations, our investigative detentions.
- The second thing is asking incriminating questions.
- The third thing is a known police officer. I call this the Perkins rule, Illinois versus Perkins, where the person has to know that you are working for the government.
- You need all three in order to have a Miranda issue. Because we have no in custody, we do not have Miranda.
- Clearly they’re not even remotely detained. They can just hang up the phone. A reasonable person knows that they have that option.
- If you do it, all you’re doing is creating that opportunity, you’re opening up the door for them not to talk to you.
- The cases on this do not involve people at homes, because how do you litigate such an obvious answer?
Related from Blue to Gold
- Here’s a Thought… No More Miranda Gift Bags
- When Is Miranda Required?
- Undercover Operations and the Sixth Amendment
This article is an edited transcript of Roadside Chat Ep. #721. 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.
