Hang up the Phone: Miranda Does Not Apply to Voluntary Telephone Conversations with Police Officers

Miranda warnings are required whenever there has been a formal arrest or a restraint of movement indicating a formal arrest.

The recent New Mexico Court of Appeals decision in State v. Hernandez makes it clear that there is no such formal arrest or restraint when the suspect voluntarily converses with a police officer over the phone.

In the case of State v. Hernandez, the police were called to a home that had been receiving repeated threatening phone calls.

Following each phone call, the caller allegedly fired shots into the home. Upon arrival of the officers, the caller called the home again. The officer answered the phone. The Defendant‘s phone number was indicated on caller ID. The caller then made incriminating statements including identifying himself as Roberto and confirming he was the shooter.

At trial, the Defendant‘s attorneys were successful in suppressing the statements of the Defendant as a violation of the Defendant‘s Miranda rights. Miranda v. Arizona requires that the suspect be under interrogation while in custody.

The Court found that Hernandez was neither in custody nor under interrogation as he voluntarily initiated the phone call as well as the conversation. He was free to hang up the phone. Instead, he made the statements voluntarily.

The lesson here is clear: Stop Talking and Hang Up the Phone. It is exceedingly unwise to voluntarily give incriminating statements to a police officer over the phone particularly when you initiated the call. Miranda will not protect you here.

There were other issues regarding the rights of the Defendant to confront witnesses under Crawford v. Washington.

The Court remanded the case to District Court for a determination of facts necessary for the Crawford determination including the identification of the caller, and the related foundation for admission of the statements made during the call.


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