Rainwater Law Group

Effective Criminal Defense

Smith v Clark, No. 14-15162 [October 22, 2015]

Smith v. Clark

Judge Fletcher writes a dissent from a denial of rehearing in banc. The issue was whether Mr. Smith, a 16-year-old, was “in custody” at the time of his confession. The California state court found he was not “in custody” exclusively because he “was told three times that he was not under arrest and was free to go.” The dissent would have held that California misread the Supreme Court holding in California v. Beheler “establishes a bright-line rule that a suspect who has been repeatedly told that he is ‘not under arrest’ is not ‘in custody’ under Miranda. But this is not the law. A police officer cannot remove an interrogation from Miranda’s reach simply by reciting magic words.” He further express concern about the nationwide use of telling a suspect he is “not under arrest” by police departments, including the FBI, who have so interpreted the Supreme Court opinion. In this particular case, one of the officers asked another “are you Beheler-ing here, which the answer was “Yes.”

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