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B. What Constitutes an Interrogation

According to the California Supreme Court, an interrogation “‘consists of express questioning, or words or actions on the part of the police that “are reasonably likely to elicit an incriminating response from the suspect.”’ (People v. Cunningham [(2001)] 25 Cal.4th [926,] 993, quoting Rhode Island v. Innis [(1980)] 446 U.S. [291,] 301.) ‘Interrogation thus refers to questioning initiated by the police or its functional equivalent, not voluntary conversation. [Citation.] “‘Volunteered statements of any kind are not barred by the Fifth Amendment . . . .’”’ (People v. Thornton (2007) 41 Cal.4th 391, 432, quoting Rhode Island v. Innis, at p. 300.) Consequently, the police ‘may speak to a suspect in custody as long as the speech would not reasonably be construed as calling for an incriminating response.’ (People v. Clark (1993) 5 Cal.4th 950, 985.)

“Under these rules, smalltalk is permitted. Thus, we have concluded that a detective who told a defendant during booking that he ‘looked “like a traffic ticket”’ and asked ‘“Is it just a warrant?”’ was not engaged in an impermissible custodial interrogation. (People v. Bradford (1997) 14 Cal.4th 1005, 1034.) [The deputy’s] remarks [in this case] were even more innocuous; objectively, there was no reason to suspect that inquiring about Gamache’s military service would lead Gamache to volunteer his regret about failing to kill Peggy Williams or the other inflammatory remarks that followed. [The deputy’s] subsequent ‘“neutral inquir[ies]”’ did not convert Gamache’s volunteered admissions into the product of interrogation. (People v. Ray (1996) 13 Cal.4th 313, 338.) The trial court did not err in admitting them.” (People v. Gamache, supra, 48 Cal.4th at pp. 386-387.)

“In Rhode Island v. Innis[, supra,] 446 U.S. 291, the Court defined the phrase ‘functional equivalent’ of express questioning to include ‘any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police.’ Id. at 301 (footnotes omitted) . . . . However, ‘[a]ny knowledge the police may have had concerning the unusual susceptibility of a defendant to a particular form of persuasion might be an important factor in determining’ what the police reasonably should have known. Innis, supra, at 302, n. 8. Thus, custodial interrogation for purposes of Miranda includes both express questioning, and also words or actions that, given the officer’s knowledge of any special susceptibilities of the suspect, the officer knows or reasonably should know are likely to ‘have . . . the force of a question on the accused,’ [citation], and therefore be reasonably likely to elicit an incriminating response.” (Muniz, supra, 496 U.S. at pp. 600-601.)


C. Analysis

Defendant contends that because the pre-Miranda questions were designed to establish both her parental relationship with her son, who was a suspect in this case, and his phone number, the officers were engaged in an impermissible custodial interrogation during the first phase of the questioning. We are not persuaded.

The record shows that defendant was arrested because she fit the description of the possible female suspect. During the pre-Miranda questioning, she was asked for the names and phone numbers of her family members. Her responses—her son’s name and telephone number—were not incriminating and the officers had no basis to believe that these biographical questions would call for an incriminating response.

Defendant contends that the biographical questions were improper because the officers were able to use her responses—her son’s name and phone number—to challenge her failure to identify her son’s photograph. However, such use of her earlier responses was not a Miranda violation. “The fact that information gathered from these routine questions or casual conversations turns out to be incriminating does not alone render the statements inadmissible. (See People v. Gomez, supra, 192 Cal.App.4th at p. 629.)” (People v. Andreasen, supra, 214 Cal.App.4th at p. 88.)

We conclude that because the pre-Miranda questions may not reasonably be construed as calling for an incriminating response, no Miranda warning was required at the initial phase of the interview.




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