always_raining wrote:gr8scOtt! wrote:always_raining wrote:Thanks for sharing this. My problem with the analysis is that you don't have to be under arrest for Miranda rights to attach. It's only if you're under "custody." Or at least, that's how I understand it.
Actually, that's the problem with the Themis outline. You DO have to be under arrest, and the arrest required is more formal than what is considered a 4th amendment arrest. So custody = formal arrest, but seizure can be a less formal arrest.
Custody does not have to be formal arrest. I think the analysis is just wrong. Was this the bar-examiners analysis or one of the provided applicant model answers? Because those can have errors in them.
Ok, so what I meant is that custody must be what is considered a "formal arrest," not necessarily in handcuffs but more than what is considered an arrest under the 4th amendment. It's more formal than a seizure (but again, not necessarily in handcuffs). The outline says it is a "substantial seizure" defined as either a "formal arrest or a restraint on freedom of movement to the degree associated with a formal arrest." I don't think Themis makes it very clear here but the point is that you can have an seizure that constitutes an arrest under the 4th amendment that does not meet the "substantial seizure" requirement for a finding of being in custody for Miranda to apply.
But Miranda applies to all custodial interrogations. If you are in custody (formal arrest or reasonable person would not think you could leave) and it qualifies as interrogation (i.e., not during booking or public safety exception), Miranda applies. Edited to add: other than a Terry stop. I know that for a Terry stop you are seized but they definitely don't have to read you your Miranda rights.