{"id":8571,"date":"2013-04-03T12:20:32","date_gmt":"2013-04-03T12:19:51","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2013-04-03T12:19:51","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=8571","title":{"rendered":"CA6: \u201cWhat\u2019s in your pocket?\u201d during a patdown not subject to Miranda"},"content":{"rendered":"

Defendant not entitled to a Miranda warning before asking him \u201cWhat\u2019s in your pocket?\u201d during a patdown because it was not a custodial interrogation. The District Court conflated the Fourth and Fifth Amendment analyses. United States v. Woods<\/a>, 11-2429 (6th Cir. April 3, 2013):<\/p>\n

<\/p>\n

The district court rested its denial of Woods\u2019s motion to suppress on the twin rationales that the statement was obtained lawfully under Terry v. Ohio, 392 U.S. 1 (1968), and that the physical evidence was admissible under the plain-view doctrine. These rulings, however, conflate the applicable Fifth Amendment analysis with inapposite Fourth Amendment doctrine, and the government accordingly makes no effort to defend the district court\u2019s rationales on appeal. Instead, the government bases its contention that suppression was not warranted on four alternative grounds. They are, in order of analytical priority, that: (1) the officer\u2019s question \u201cWhat is in your pocket?\u201d did not amount to an \u201cinterrogation\u201d at all, so the requirement of reciting the Miranda warnings was not triggered; (2) even if there was a custodial interrogation and Miranda was triggered, the failure to recite the Miranda warnings was justified due to a concern for the officer\u2019s safety; (3) even if Miranda was violated, the physical evidence should not be suppressed because the Fifth Amendment does not require the suppression of the physical, nontestimonial fruits of a Miranda violation; and (4) even if Miranda was violated, the physical evidence should not be suppressed because it would have been inevitably discovered even without the violation. Because we can resolve this case on the basis of the first issue, there is no occasion to address the other three. <\/p>\n

The threshold issue is whether Woods was subjected to a custodial interrogation. In the absence of a custodial interrogation, the requirement to recite the Miranda warnings is not triggered and the analysis is at an end. See, e.g., Miranda, 384 U.S. at 444; Berkemer v. McCarty, 468 U.S. 420, 442 (1984). The government concedes that Woods was in custody at the time Officer Mardigian asked him \u201cWhat is in your pocket?\u201d. So the only remaining issue is whether that question amounted to an \u201cinterrogation\u201d within the meaning of Miranda jurisprudence.<\/p>\n

. . .<\/p>\n

The question \u201cWhat is in your pocket?\u201d was not an investigatory question or otherwise calculated to elicit an incriminating response, but rather a natural and automatic response to the unfolding events during the normal course of an arrest. …<\/p><\/blockquote>\n

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