As mentioned at the outset, the dialogue between Ruffin and Howard on the side of the road had a certain unreality to it. A number of times, Ruffin seemed to go out of his way to tell Howard that he was not under arrest—even when Howard was in handcuffs and would not likely have believed he was free to terminate the encounter. Why did Ruffin go to such great lengths to communicate this message to Howard, notwithstanding the reality of the situation?

Although we don't know for sure what was going through Ruffin's mind, the answer is likely that he was following his training. California law enforcement agencies apparently train their officers to tell suspects that they are not under arrest, on the theory that these magic words allow officers to keep questioning suspects without advising them of their Miranda rights, even if it is otherwise obvious that the suspects are in custody and therefore entitled to Miranda 's protective admonitions. See, e.g. , Smith v. Clark , 612 Fed.Appx. 418, 424 (9th Cir.2015) (unpublished) (Watford, J., concurring).

Why, in turn, do law enforcement agencies train their officers to circumvent Miranda in this way? Apparently it is based on a series of court decisions that give “essentially dispositive weight” to these magic words, immunizing the government from adverse Miranda rulings in cases where the suspect cannot possibly have felt free to leave. Id. at 423 ; see also Smith v. Clark , 804 F.3d 983, 986–87 (9th Cir.2015) (W. Fletcher, J., dissenting from denial of rehearing en banc). In other words,  law enforcement agencies train officers to work their way around Miranda because courts have signed off on the workaround.

In some cases, perhaps this practice helps officers obtain evidence when a suspect would otherwise clam up. But if Ruffin was following this practice here, it backfired. Because Ruffin made clear he was not in the process of arresting Howard when he announced he was going to search the backpack, Howard's statements following that announcement, and the gun found in the backpack, must be suppressed.

Full case here: United States v. Howard, 156 F. Supp. 3d 1045 (N.D. Cal. 2016), https://casetext.com/case/united-states-v-howard-306

Anton Vialtsin, Esq.
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