Custody and Reinitiation: Synopsis of Rulings

by Charles Gillingham

I get calls all the time from officers who want to speak to county jail or prison inmates about a new case or who want to reinitiate questioning of a suspect who either invoked his right to an attorney or the right to remain silent.

"Do I have to Mirandize an inmate in jail/prison before talking to them?"

"Can I reinitiate questioning with a suspect who invoked?"


As to the first question, remember a Miranda warning is only required when the suspect is in "custody" for Miranda purposes. In other words when a reasonable person would not feel free to leave.

The answer to the first question is fairly straightforward. The U.S. Supreme Court in Howes v. Fields (2012) 132 S. Ct 1181 found that an inmate is not automatically in custody when in a prison facility. In that case, the suspect was serving a prison term on an unrelated case and officers arranged to interview him in prison. He was handcuffed during the interview but told that he was free to return back to his cell at anytime and was reminded of that ability during the interview. Miranda warnings were not given and the defendant confessed. The court found that the prison setting was the suspect's normal life at that point, not the jarring change of being arrested off of the street. Because the suspect was told he was free to leave at the beginning, the door was open for a portion of the interview and the suspect offered food and water, the court held this was not custody for Miranda purposes. The interview went on for 5-7 hours.

What about a county jail inmate?

The California Supreme Court in People v. Macklem (2007) 149 Cal.App.4th 674, used substantially the same analysis as in Howes v. Fields for individuals incarcerated in the county jail. The result should be the same. Remember to tell the suspect he is free to leave the interview at any time and return to his cell. It is not a bad idea to remind the suspect at some point during the interview of that ability again. Even though the suspect was handcuffed in Howes v. Fields, it would be a good idea to have the suspect not be handcuffed. Finally, if the suspect was recently booked and had yet to settle into a routine in custody, the analysis might differ because that person has suffered the jarring, coercive change in circumstance the two courts talked about.

What about the suspect who invoked the right to an attorney? Can I go back in and try again?

In Maryland v. Shatzer 559 (2010) U.S. 98, the U.S. Supreme Court ruled that officers can go back to question a suspect in custody who invoked the right to a lawyer provided the suspect was back in his routine in custody, in other words back in the general population and you wait 14 days from the prior invocation. The 14 day rule also applies if the suspect was released from custody within those 14 days. A release from custody starts the 14 day clock again.

What if the suspect only invoked the right to remain silent?

The Court views the invocation of the right to remain silent differently than the right to an attorney. When someone invokes the right to an attorney that person is signaling that they believe they need assistance to deal with the situation. People who refuse to answer the Miranda questions or refuse to speak are clearly dealing with officers at a different level. The Court has held that you must wait a "substantial" period of time after you scrupulously honor the invocation.

What you have to do is stop the interrogation when there is an invocation of the right to remain silent. You cannot pressure, badger, encourage or otherwise work a suspect into talking to you. You cannot immediately start talking to them again after they invoke and of course you have to Mirandize them again.

What is the substantial period to wait between an invocation and the start of new questioning?

In Michigan v. Mosley (1975) 423 U.S. 96, the U.S. Supreme Court said you cannot just start again because that would basically make the first invocation meaningless. In Mosley, the officers waited 2 hours to reinitiate questioning. At this point the best advice the legal update page can recommend is to wait at least 2 hours. Clearly, longer is better to satisfy this requirement.