When Does a “Non-Custodial” Interview Become an Interrogation

April 9th, 2018 by Tad Nelson in Criminal Defense

As criminal defense attorneys, one thing we stress time-and-again to our clients is the importance of invoking your rights to remain silent and seek the advice of counsel before speaking with the police. Of course, the police are constitutionally required to advise you of these rights before arresting you or otherwise taking you into custody. But they often try to skirt the law by conducting extended “non-custodial” interviews where they pressure you to answer their questions and imply you are not free to leave.

Appeals Court Throws Out Galveston Defendant’s Statements Due to Police Tactics

So when does a non-custodial interview become a custodial interrogation? The Texas First District Court of Appeals recently addressed that question in a pending criminal case from Galveston County. The defendant, who was 19-years-old at the time of his arrest, was charged by the Galveston District Attorney with aggravated robbery.

Galveston police were investigating a shooting. They arrived at the defendant’s home and “pressured” him into coming down to the police station to answer some questions related to the shooting. Once at the station, officers told the defendant not to leave, even though he was not under arrest. But at this point, detectives later admitted under oath in court, there was not “probable cause” to charge the defendant with any crime.

Detectives proceeded with their supposedly “non-custodial” interview of the defendant for seven hours. During the course of this interview, the defendant admitted using a cellphone number that was connected to the shooting victim. Detectives believed they now had probable cause to arrest the defendant, but they did not formally charge him for several more hours. During this time they continued to interrogate the defendant without advising him of his constitutional rights to remain silent or speak with an attorney. Eventually, the defendant told the detectives he was present at the shooting but denied “pulling the trigger himself.”

The trial judge ultimately suppressed that part of the defendant’s statement that occurred after the detectives formally notified him he was a suspect. While the interview “began as a non-custodial interrogation,” once the police believed they had probable cause to make an arrest, the judge said they were constitutionally obligated to inform the defendant of his rights. Their failure to do so rendered the subsequent statements inadmissible in court.

The District Attorney appealed the judge’s ruling, but the First District affirmed. “Looking at the totality of the circumstances,” the appeals court said in its opinion, “a reasonable person in [the defendant’s] position would have believed that his freedom of movement was restrained to the degree associated with a formal arrest at the time that he admitted his connection with the phone number associated with the shooting.”

Get a Lawyer Before Speaking With the Police

We cannot emphasize this enough: Never speak to the police without an attorney present. Detectives have a legal right to pressure, mislead, and even lie to you in an effort to elicit potentially incriminating statements. Your best protection against such tactics is to have an experienced Galveston criminal defense lawyer by your side. If you are under suspicion of a crime and need assistance, contact the Law Offices of Tad Nelson & Associates today. Call (281) 280-0100

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