Routine Booking Questions of Gangsters

By Charles Gillingham

 

As gang crime becomes more prevalent, identifying gangsters becomes more important. Field interviews, interviews with other gangsters, and of course, criminal conduct, can all be used in subsequent prosecutions of gangsters. Jail classification is also used and is excellent information for a jury. First, jail classification information is important for the jury because of its trustworthy nature. No gangster is going to classify as a sureno when he is a norteno. Second, classification information also gives our jurors, who are not steeped in the gang culture, insight into our gangster's behavior---that he has been to jail.

A new case in California recently took up the issue of whether routine booking questions are inside or outside of Miranda.

As a general rule, administrative booking questions do not violate Miranda because they do not call for incriminating responses. But, the defendant in a new case argued that gang classification questions are by their very nature incriminating.

In People v. Gomez, 2011 DJDAR 38376, Gomez was arrested along with three other men after they beat a man outside the man's apartment, flashed gang signs, and carjacked his truck.

About two miles away the four men were detained, the victim did an in field show up and the men were arrested. The men were arrested by a city police officer and they were transported to jail.

At the jail, a deputy sheriff working in classification asked Gomez his name, dob, and whether he had any gang affiliations. He was asked which gang and he stated Arlanza. Gomez was then asked whether he was an active member, associate or drop out. He said he was active.

At trial, the statements to the deputy at classification were used to prove that Gomez was an active gang participant.

NO MIRANDA

The deputy questioning Gomez did not obtain a Miranda waiver before the booking questions. As stated above, as a general rule, basic information gathered at booking is not subject to Miranda. Gomez argued that the gang questions were calling for incriminating responses, admitting to being an active gang member, and were therefore subject to Miranda and should have been excluded from his trial.

The sheriff's deputy testified that he asked the questions for classification issues and not for investigative purposes.

NO MIRANDA NEEDED IF?

The court held that no Miranda was needed if the following could be proven: the questions were reasonably necessary for a legitimate jail purpose and that they were not a pretext to gather incriminating information.

The court held that both factors were present here. The court found that it was reasonable to house rival gang members separately.

The court found the pretext issue was covered because there was no reason to believe the deputy was gathering incriminating information. The deputy was not involved in the investigation of the carjacking and that he asked questions in the booking process that were on a standard form by a booking officer.

BE CAREFUL

It is pretty clear that a patrol officer will not be able fall back on the Gomez decision. If patrol officers or detectives wish to gather gang information it has to be during the detention phase or during an arrest and with a valid Miranda waiver.

Chuck Gillingham is a veteran prosecutor. He is also an instructor for the California District Attorneys' Association and for Santa Clara University School of Law. Please consult with your own legal counsel for precise guidance before applying any of the techniques or suggestions in this article.