Editor’s note: This article originally appeared in The Chief’s Chronicle; New York State Association of Chiefs of Police. Reprinted with permission.
Can a police officer be sued for a violation of a person’s federal civil rights under 42 U.S.C. § 1983 (§ 1983) if the officer failed to administer Miranda warnings as required? [1] This was the issue addressed by the Supreme Court of the United States (SCOTUS) recently in Vega v. Tekoh. [2]
The majority, in a 6–3 decision, ruled the Miranda warning is a “prophylactic rule” protecting the Fifth Amendment right against self-incrimination, not a constitutional right itself. Therefore, the majority reasoned, a violation of Miranda does not constitute a violation of the Fifth Amendment and does not confer a right to sue under § 1983 for any violations.
As a reminder, Miranda warnings are required for any person who is 1) in custody and 2) subject to interrogation. Whether both components are present in a case is typically a mixed question of law and fact to be determined in court.
Vega v. Tekoh has a complicated procedural history, and the majority went through a detailed analysis of past related precedents to come to its conclusion. For law enforcement, however, the more significant analysis is what impact this case has, or does not have, on police officers conducting investigations and interviews.
Vega v. Tekoh
Terence Tekoh worked at a Los Angeles medical center and was accused by a female patient of sexual assault. The county sheriff’s department was called, and Deputy Vega responded to investigate the claim. Vega questioned Tekoh at the hospital in a private MRI reading room. As frequently happens in these cases, the description of what happened during the interview differed dramatically between Vega and Tekoh.
What is undisputed is that Vega never read Tekoh Miranda warnings, and a statement written by Tekoh apologizing for his actions was produced during the interview. Under Tekoh’s account, the interview was coerced, his request for counsel was ignored, Vega refused to let Tekoh leave the room after he denied involvement, and the content of the statement was dictated by Vega and written under duress. According to Vega, the conversation was congenial and Tekoh readily admitted to and seemed regretful for his actions.
At the criminal trial, the judge apparently believed Vega’s account, as the statement was admitted into evidence against Tekoh. But the jury ultimately returned a verdict of not guilty. The civil action then commenced, and the case wound its way to the SCOTUS.
First, the simple part. This decision means that if officers fail to administer Miranda warnings when required by law, they cannot be sued under § 1983 for a constitutional violation. It does not, however, change the fact that statements taken in violation of Miranda cannot be introduced into evidence against a defendant in a direct case. In this case, the issue hinged on whether Tekoh was determined to be “in custody.” The criminal court judge ruled he was not.
What if Tekoh were deemed to be in custody? Asking a person to write out what happened would clearly be considered a form of interrogation and so the statement would not have been admissible. But the admissibility of the statement would have been the only difference; a § 1983 action would still not be permissible.
So, we are done, right? If that is the extent of case’s impact, what more do we need to talk about?
Complex Issues During Custodial Interviews
Sometimes it is as important to understand what cases such as Tekoh do not do. Officers who do not fully understand the implications of a ruling may – in good faith – get procedurally creative. So, we need to cover what the case did not say to prevent officers from drawing erroneous conclusions.
First, this case should change nothing in the way you handle your investigations and custodial interviews. Miranda – mere “prophylactic rule” or not – is a rule police are required to follow to properly secure confessions and help build successful criminal cases. No officer should be making decisions relevant to investigations based on whether they may be civilly liable.
Second, all confessions, regardless of Miranda, are still potentially subject to a challenge of whether the confession was involuntary and/or coerced. Importantly, in cases where Miranda warnings are administered and a waiver obtained, it is very difficult to prove that a confession was involuntary. As the SCOTUS has explained:
The requirement that Miranda warnings be given does not, of course, dispense with the voluntariness inquiry. But as we said in Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984), “[c]ases in which a defendant can make a colorable argument that a self-incriminating statement was ‘compelled’ despite the fact that the law enforcement authorities adhered to the dictates of Miranda are rare.”[3]
In other words, proof of adherence to Miranda with a proper waiver by the person helps to ensure the admissibility of any statements. With the proliferation of video capabilities in interview rooms, it should be common practice to record every minute of an interview. This allows the administration of warnings to be permanently memorialized, which greatly enhances the validity of the statement obtained.
Beware of Procedural Creativity
So, what did I mean when I stated previously that officers can sometimes get procedurally creative? An example can be found in the underlying facts of the SCOTUS case Missouri v. Seibert. [4] Officers investigating an arson used a two-step interview practice called “question first” during custodial interviews, which had been widely taught by a national training organization. The practice involved intentionally withholding Miranda warnings until the suspect confessed to the suspected crime. After a brief delay, Miranda warnings would then be administered, and the investigator would get the suspect to repeat the incriminating statements if the person waived their rights. The latter statement would then be admissible in court because it followed Miranda warnings.
This practice was apparently based on a SCOTUS precedent, Oregon v. Elstad, which held that prior unwarned statements would not automatically make subsequent fully warned statements inadmissible. [5] The Seibert court ruled, in a 5-4 decision but in a plurality opinion, that this practice was designed to circumvent the protections afforded by, and was incompatible with, the rule of Miranda. The court affirmed the suppression of the statements, which effectively put an end to that practice. [6]
The Elstad case did not involve police officers intentionally circumventing Miranda. Instead, the initial admission was made voluntarily during a brief exchange with officers as the subject was being arrested. Such things will sometimes happen during rapidly unfolding events without any bad intent by the officer. In such cases the Elstad rule makes sense. But officers and trainers seized on the Elstad rule and expanded it beyond the holding.
Any practice, such as that in Seibert, designed to circumvent or shortcut a rule or established practice is detrimental to the growth of an officer – or any person for that matter. Interviewing is a skill that can be learned and enhanced with time and practice. The ability to administer the warnings effectively is a critical component of an interview and, therefore, is part of the overall skill needed to obtain confessions. This may sound obvious, but the interviewers got confessions. Did they really need to use this “question first” practice that could cast doubt on the totality of the interview? All they ended up doing was to potentially raise the question of what happened prior to the warnings. Use your video, if you have it, to record the entire interview and develop your skills so you don’t need to take shortcuts to get the confession.
Skipping Miranda for any substantive part of a custodial interview can increase the possibility of a claim the confession was involuntarily made. Procedural shortcuts that involve circumventing established rules can also promote a culture of “the ends justify the means.” [7] Does that end with small, insignificant rule deviations? Or will some officers take it further?
Also not discussed in any detail in the Tekoh case was the fact that determining compliance to Miranda is just one issue related to the voluntariness of a confession. While officers may not be held civilly liable in a § 1983 case for a Miranda violation, they may be sued for an actual violation of the Fifth Amendment prohibition on self-incrimination if a confession is deemed coerced and involuntarily obtained. Such coercion could also rise to the level of a violation of the Fourteenth Amendment due process clause. Granted, police actions that would rise to the levels necessary to sustain an action for any of these constitutional violations would be far more significant than failing to administer Miranda warnings. Another possibility not addressed by Tekoh is a violation of the Sixth Amendment right to counsel. With or without the warnings, continuing an interview and refusing to acknowledge a person’s clear requests for an attorney could rise to this level.
When Miranda May Not Apply
The rule of Miranda is simple and straightforward – you must have both custody and interrogation. If one component is missing, Miranda does not apply and the warnings do not need to be administered. There are circumstances in non-custodial settings where officers consciously and legitimately do not administer Miranda warnings. I have seen this done many times where confessions were successfully obtained. But such interviews need to be carefully planned.
A common practice is to emphasize to the person they are not in custody, they do not have to speak to you, and they can leave at any time. Then take any voluntary statement, recorded whenever possible, the person is willing to give. At the conclusion of the interview, the person is sent on their way with an appointment to return with their attorney for subsequent arrest processing. The risk with this strategy is a judge may rule that the person was in custody, despite your intent and actions, which is why it is important to follow the suggested steps. I have found through practice and case law that if the person leaves the presence of the police without being arrested at that time, the case is often successful.
This approach is inappropriate for more serious crimes, but it can be a viable option for nonviolent offenses. It is also not an example of being “procedurally creative.” This is different than the practice used in Seibert. It is adhering to the law as it exists and being open and honest about it. If, during any such interview, the person refuses to answer questions or requests an attorney, then the interview needs to cease immediately.
The legal landscape pertaining to interrogations and confessions can be complicated and confusing for officers to navigate. But some things are simple and straightforward. The Tekoh ruling is one of these simple things and it should be a non-event for all law enforcement officers. Miranda warnings should be administered as they were before the case was decided.
Sources and Notes
1. Miranda v. Arizona, 86 S.Ct. 1602 (1966).
2. Vega v. Tekow, 142 S.Ct. 2095 (2022).
3. Dickerson v. U.S., 120 S.Ct. 2326 at 2336 (2000).
4. Missouri v. Siebert, 124 S.Ct. 2601 (2004).
5. See Oregon v. Elstad, 105 S.Ct. 1285 (1985). The Seibert decision does not overrule Elstad as there are circumstances when a subsequent fully warned statement is sufficiently attenuated from the initial unwarned statement to allow its admission. The key to the Seibert decision was the fact the two-step process used was designed to circumvent the rule of Miranda.
6. The Siebert court ruled 5-4 in favor of affirming the suppression of the statements but with a plurality opinion.
7. Do a Google search for “police noble cause corruption” — there will be plenty for you to read.
