In General. Miranda protections require a person in custody to be informed of the right to remain silent, consequences of foregoing that right, the right to counsel, and t hat if the person is indigent, a lawyer will be appointed. (People v. Suff (2014) 58 al.4th 1013, 1070.)
When Necessary
(i) Custodial (ii) Interrogation (iii) by Law Enforcement
Custody: a person is “in custody” for Miranda purposes if a reasonable person under the same circumstances would have believed that his freedom of action had been curtailed to the degree associated with a formal arrest.
Relevant factors. “A more comprehensive, although not exhaustive, list of relevant circumstances includes
[1] whether contact with law enforcement was initiated by the police or the person interrogated, and if by the police, whether the person voluntarily agreed to an interview;
[2] whether the express purpose of the interview was to question the person as a witness or a suspect;
[3] where the interview took place;
[4] whether police informed the person that he or she was under arrest or in custody;
[5] whether they informed the person that he or she was free to terminate the interview and leave at any time and/or whether the person’s conduct indicated an awareness of such freedom;
[6] whether there were restrictions on the person’s freedom of movement during the interview;
[7] how long the interrogation lasted;
[8] how many police officers participated;
[9] whether they dominated and controlled the course of the interrogation;
[10] whether they manifested a belief that the person was culpable and they had evidence to prove it;
[11] whether the police were aggressive, confrontational, and/or accusatory;
[12] whether the police used interrogation techniques to pressure the suspect; and
Police expression of suspicion, with no evidence of restraint on a person’s movement, does not necessarily convert voluntary presence at interview into custody. (People v. Moore (2011) 51 Cal.4th 386, 402.)
Interrogation Techniques
Questioning at police station where D voluntarily consented to be there, told he was not under arrest, where police employed interrogation techniques and questioning became accusatory, became custodial when questioning became accusatory. (People v. NavaAdame (Nov. 17, 2025) G064663.)
“[N]o reasonable person faced with [Officer’s] sudden lengthy, confrontational monologues at the beginning of the third part of the interrogation, which were rife with accusation and employed a barrage of interrogation techniques, would have felt they could get up and walk away.” (Ibid.)
Includes “functional equivalent” of questioning – remarks police should know are reasonably likely to elicit an incriminating response
A psychiatric interview of a suspect is interrogation if the interview contains material later to be used in the prosecution’s case, including evidence about a suspect’s mental state. (People v. San Nicolas (2004) 34 Cal.4th 614, 640.)
Perkins Operations. “[A]n undercover law enforcement officer posing as a fellow inmate need not give Miranda warnings to an incarcerated suspect before asking questions that may elicit an incriminating response.” (Illinois v. Perkins (1990) 496 U.S. 292, 300.)
Rationale. “Conversations between suspects and undercover agents do not implicate the concerns underlying Miranda [because] [t]he essential ingredients of a ‘police-dominated atmosphere’ and compulsion are not present when an incarcerated person speaks freely to someone whom [the incarcerated person] believes to be a fellow inmate.” (Illinois v. Perkins (1990) 496 U.S. 292, 296.)
Statement to a Perkins Operative Admissible Even After D Invokes Right to Counsel. “California courts have found Perkins controls when a suspect invokes the right to counsel but then unknowingly speaks to a police agent the suspect does not believe to be an agent.” (People v. Ramadhan (May 27, 2026) 2026 Cal.App.LEXIS 327.)
Stimulating Conduct Exception: Where known law enforcement officer’s stimulated conversation between D and the Perkins operatives after D invoked his Miranda rights, such statements amounted to a custodial interrogation in violation of Miranda. (People v. Zapata (2026) 118 Cal.App.5th 529, 540-541.)
To establish a valid waiver of Miranda rights, the prosecution must show by a preponderance of the evidence that the waiver was knowing, intelligent, and voluntary. (People v. Nelson (2012) 53 Cal.4th 367, 374-375.)
A suspect’s expressed willingness to answer questions after acknowledging and understanding of his or her Miranda rights has itself been held sufficient to constitute an implied waiver of such rights. (People v. Cruz (2008) 44 Cal.4th 636, 667.)
Ambiguous Waiver
A valid waiver need not be of predetermined form, but instead must reflect that the suspect in fat knowingly and voluntarily waived the rights delineated in the Miranda decision. (People v. Williams (2010) 49 Cal.4th 405, 427.)
Translated Miranda Warnings
Where “anything you say may be used against you in court” translated to Punjabi as “whatever statement you give us, it is your statement and we can use it in court whenever there is the court date,” held, advisement adequately conveyed to D his rights as required by Miranda. (People v. Singh (2024) 103 Cal.App.5th 76, 100.)
Readvisement
Miranda readvisement is not necessary before a custodial interrogation is resumed, so long as a proper warning has been given, and “the subsequent interrogation is “reasonably contemporaneous” with the prior knowing and intelligent waiver.” (People v. Smith (2007) 40 Cal.4th 483, 504.)
(4) The suspect’s sophistication or past experience with law enforcement
(5) Further indicia that defendant subjectively understands and waives his rights
D’s continued contact and cooperation with officers after initial advisement tended to show he understood and waived his rights. (People v. Pearson (2012) 53 Cal.4th 306, 317.)
Invocation
Invocation
Right to Silence
Expressing Frustration/Animosity. A defendant has not invoked his right to silence when the D’s statements were merely expressions of passing frustration or animosity toward the officers, or amounted only to a refusal to discuss a particular subject covered by the questioning. (People v. Williams (2010) 49 Cal.4th 405, 433.)
Must express desire for counsel with sufficient clarity that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. (Davis v. United States (1994) 512 U.S. 452, 459.)
When an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights … [There is to be no] further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” (Edwards v. Arizona (1981) 451 U.S. 477, 484-485.)
After invocation of right to counsel, police officers may resume their interrogation if “the suspect (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked.” (People v. Johnson (2022) 12 Cal.5th 544, 583.)
An accused “initiates” further communication, when his words or conduct ‘can be “fairly said to represent a desire” on his part “to open up a more generalized discussion relating directly or indirectly to the investigation.”‘” (People v. Molano (2019) 7 Cal.5th 620, 654.)
Inquiries or statements, by either an accused or a police officer, relating to routine incidents of the custodial relationship, will not generally ‘initiate’ a conversation in the sense in which that word was used in Edwards. (Oregon v. Bradshaw (1983) 462 U.S. 1039, 1045 (plur. Opn. Of Rehnquist, J.).)
A defendant’s mere initiation of further conversations with police is not alone sufficient to open the door to reinterrogation. In addition, defendant must validly waive his rights. (People v. Mickey (1991) 54 Cal.3d 612, 649.)
Coercive police activity is a necessary condition to the finding that a confession is not “voluntary” within the Due Process Clause of the Fourteenth Amendment. But coercive police activity is not sufficient. The statement and the inducement must be causally linked.
Case Law
Held, given D was 18-years-old, lacked experience with criminal justice system, and surrounding circumstances (Officer statement exhorting D to talk after he had invoked right to counsel, the cold room, paper gown, lack of socks), no voluntary, knowing, intelligent waiver of the right to counsel. (People v. Avalos (2022) 85 Cal.App.5th 926, 953.)
Voluntary Intoxication is Insufficient. Courts have “repeatedly rejected claims of incapacity or incompetence to waive Miranda rights premised upon voluntary intoxication or ingestion of drugs alone. (People v. Clark (1993) 5 Cal.4th 950, 988.)
Test: People must prove by preponderance of the evidence that, after interrogating officer comes to the realization that he needed to give Miranda warnings, “the detective did not deliberately withhold the requisite warnings as part of a calculated strategy to foil Miranda.” (People v. Sumagang (2021) 69 Cal.App.5th 712, 728.)
Factors to Assess Whether Interrogator Acting Deliberately
Did detective rely on D’s prewarning statement to obtain the postwarning statement?
Were any curative measures taken?
i.e. substantial break in time b/w two parts of the interrogation
Miranda & FSTs
Miranda Challenge to FST questions
Romberg. Trial court erred in refusing to suppress D’s statements during FSTs (after D had been handcuffed inside a patrol vehicle) prior to being advised of his Miranda rights. (People v. Bejasa (2012) 205 Cal.App.4th 26.)
Held D’s responses during Romberg were testimonial
Traffic Stop. Circumstances associated w/ typical traffic stop are not such that the motorist feels completely at the mercy of the police…persons temporarily detained to such stops are not ‘in custody’ for purposes of Miranda. (Berkemer v. McCarty (1984) 468 U.S. 420.)