‘Do you have any drugs in the car?’ Miranda and the limits of interrogation during a traffic stop
Knowing when your questioning during a traffic stop triggers Miranda – or not – can be the difference between your evidence being suppressed – or not
In Miranda v. Arizona, the Supreme Court protected a defendant’s Fifth Amendment right against self-incrimination by requiring police to provide an advisement before “custodial interrogation.” Two circumstances trigger Miranda warnings: “custody” and “interrogation.”
Custody and interrogation
“Interrogation” occurs when police ask questions or make statements or engage in conduct “reasonably likely to elicit an incriminating response.” Examples of the latter include:
- The “Christian burial speech” case in which an officer did not question the suspect in the murder of a 10-year-old girl, but instead talked about the need of the parents to provide her a Christian burial. The defendant responded by taking the officer to the body.
- People v. Ferro, in which the court found that the police placing stolen furs from the murder victim outside the cell in which defendant was being detained constituted interrogation.
Statements volunteered by a suspect are admissible even if the suspect is in custody and has not been Mirandized. In State v. Snuggerud, the arresting officer advised the defendant of his Intoxilyzer test result. The defendant responded,
“One eight? How can it be a one eight, sir? I’m not that drunk. That’s for damn sure.”
The Oregon Court of Appeals ruled the statements were admissible, reasoning that the officer’s statement was not interrogation because it did not invite a response.
“Custody” for Miranda purposes can be complicated. For one thing, custody triggering Miranda’s Fifth Amendment advisement is different than a “seizure,” which triggers Fourth Amendment protection.
Miranda custody occurs when,
Under the totality of the circumstances, a reasonable person would consider himself deprived of his freedom to the degree associated with a formal arrest.
A “seizure” for Fourth Amendment protections occurs when,
A reasonable person would not have felt “‘free to leave” or otherwise terminate an encounter with law enforcement.
A person might not feel free to leave short of the kind of restraint associated with a formal arrest. So what constitutes “custody” is narrower than what constitutes a “seizure.”
Formal arrest is easy – it constitutes custody. But courts have had to address whether police-citizen contacts short of a formal arrest require Miranda before interrogation. I’ve previously addressed this question in the context of Terry stops.
Miranda and routine traffic stops
In Berkemer v. McCarty, the Supreme Court addressed whether “the roadside questioning of a motorist detained pursuant to a routine traffic stop should be considered ‘custodial interrogation.’”
A majority of the Court agreed that traffic stops typically last a short time and occur in public, where suspects are less likely to feel coerced into answering questions. Accordingly, the Court held that Miranda was not required in such situations, despite acknowledging that “a traffic stop significantly curtails the ‘freedom of action’ of the driver and the passengers, if any, of the detained vehicle.” (A traffic stop is a “seizure” for Fourth Amendment purposes so police must have at least “reasonable suspicion” of a criminal offense or violation.)
In my previous article on Terry stops, I listed some of the factors courts consider in determining whether a reasonable person would feel restrained to the extent of a formal arrest. Following are some traffic stops where courts have applied those factors and the Berkemer rationale:
- Lowe v. U.S.: Officer stopped a car and asked the driver for identification, a vehicle registration and, upon receiving unsatisfactory answers, further asked the driver’s destination and business. The court held the additional questions did not require Miranda, reasoning, “This general on the scene questioning is a well-accepted police practice” expressly excluded by Miranda.
- Bradeen v. State: Officer stopped motorist observed weaving across lanes and smelled alcohol on his breath. Officer’s question whether the driver had anything to drink did not require Miranda. Driver’s response that he’d had “one bottle of wine and two mixed drinks” was admissible.
- U.S. v. Chadwick: After stopping a driver because his license plates were expired, the officer examined the car registration papers and asked why the plates were expired. The driver replied that the car was leased and the lessor had failed to give him the current registration. The court held this statement, in response to entirely permissible on-the-scene questions, was clearly outside Miranda.
- State v. Strozier: An officer stopped a vehicle he observed driving erratically after confirming it had been reported stolen. At least three other officers arrived. With guns drawn, the officers ordered the driver and passenger to exit the car and lie on the ground. The passenger was handcuffed. Before conducting a pat-down, an officer asked the passenger if he had “anything on [him] I need to know about? Anything that might stick me?” The passenger replied he had a plastic bag with some brown stuff in it in his pocket. The appeals court held that the passenger was both in custody and interrogated for Miranda purposes so his statement and the subsequent heroin found on his person must be suppressed.
‘Do you have any drugs in the car?’
Whether you can ask a driver during a traffic stop, “Do you have any drugs in the car?” without Mirandizing the driver will depend on whether your routine stop has become custodial under the case law in your jurisdiction.
The Tenth Circuit has held that an officer conducting a routine traffic stop may not ask the detainee questions unrelated to the purpose of the stop, even if the questioning does not extend the normal length of the stop – unless the officer has reasonable suspicion of other illegal activity.
Conversely, the Fifth Circuit has held that questioning by an officer, even on matters unrelated to the purpose of the traffic stop itself, does not cause a detention to become more intrusive, i.e., custodial, unless the questioning extends the duration of the detention.
Bottomline? As with most legal questions, whether you can ask a driver if there are any drugs in the car during a routine traffic stop is a simple question with no easy answer. And the answer can vary with jurisdictions. In my home state of Alaska, the courts have repeatedly interpreted our state constitution as affording more protection against police intrusion than the U.S. Constitution provides. Since our appeals court has prohibited officers from routinely asking consent to search cars stopped for routine traffic violations (even though permitted by the Supreme Court), I think they might frown on questions about drugs if there was no reasonable suspicion of drug-related criminal activity.
I recommend you check with your local prosecutor. The purpose of this article was for you to understand the answer to the question posed can determine whether your evidence gets suppressed – or not.