zot1 wrote: zot1 wrote:
This does not make sense!
Crim Pro Essay:
- [+] Spoiler
- The question is regarding a student making statements to police officers regarding a robbery; he's a suspect. Defense moves to suppress on three grounds: 4th A, Miranda violations, and involuntary confession. Under the 4th A analysis, the model answer finds that student was not free to leave, but because the questioning was under reasonable suspicion of criminal activity, 4th A not violated. But then it goes into the Miranda violations and finds that student was not in custody because he was free to leave. WHAT?
How can he be free to leave for Miranda purposes and not 4th A? That makes no sense!
I just noticed someone else asked this. No answer yet. However, good to know I'm not the only one tripping.
Yes, I wish someone had the answer to this. I have looked into it quite a bit, and from what I can glean (though I am not confident in my understanding, so if anyone knows more or finds something wrong with what I'm saying, please correct!):
— A 4th amendment arrest is not the same as a 5th amendment arrest
—Arrest must be a "formal arrest" or functional equivalent (which, as far as I can tell, means that it is more severe than a seizure arrest under the 4th amendment, such as telling someone explicitly not to move and place their hands on a hood of a car, or when in a police station)
—I actually read part of this law review article because I was so confused about the matter: http://scholarship.law.wm.edu/cgi/viewc ... xt=facpubs
— That article basically says that a 4th amendment arrest and 5th amendment arrest used to be the same (i.e., if you were considered arrested under the 4th amendment then you had to be given Miranda), but it's gotten very attenuated and now arrests are not analyzed the same way when dealing with Miranda (though use basically the same words to describe an arrest).
—For Miranda, think of an arrest as something more significant than what is needed under the 4th amendment. Custody does not mean "arrested because I don't feel free to leave;" it must be more formal. Basically, you have to really, really, know you are under arrest for Miranda to apply.
— None of this was in the outline or in Themis.They do a terrible job of explaining how the concept of "arrest" and "custody" are different.