The Fourth Amendment / Fifth Amendment difference

Jay Leiderman
By: Jay Leiderman
September 14 2016

For a discussion explaining the Fourth Amendment / Fifth Amendment difference as it relates to a claim that Miranda was required because the suspect was in custody, see an excerpt below from People v. Pilster (2006) 138 Cal.App.4th 1395, at 1405-1406.

When moving to suppress evidence prior to trial, it is often confusing whether to use a Miranda motion or a Fourth Amendment suppression motion.  The below text provides guidance and explains the Fourth Amendment / Fifth Amendment difference in such situations.

Whether a defendant has been unreasonably seized for Fourth Amendment purposes and whether that individual is in custody for Miranda purposes are two different issues

“Whether an individual has been unreasonably seized for Fourth Amendment purposes and whether that individual is in custody for Miranda purposes are two different issues. (United States v. Kim (9th Cir. 2002) 292 F.3d 969, 976.) To resolve the detention issue, courts examine whether handcuffing the defendant met the Fourth Amendment reasonableness standard. As Newton explains, “where an officer has a reasonable basis to think that the person stopped poses a present physical threat to the officer or others, the Fourth Amendment permits the officer to take ‘necessary measures . . . to neutralize the threat’ without converting a reasonable stop into a de facto arrest.  (Newton, supra, 369 F.3d at p. 674, original italics.) Thus, courts look to the reasonableness of the officer’s actions to determine whether handcuffing exceeded the scope of the detention and transformed it into a de facto arrest.

In contrast, Fifth Amendment Miranda custody claims do not examine the reasonableness of the officer’s conduct, but instead examine whether a reasonable person would conclude the restraints used by police were tantamount to a formal arrest. These two distinct analytical concepts may produce different outcomes. (See id. at p. 677 [officers’ actions reasonable under Fourth Amendment but restraints imposed during detention placed defendant in custody for Miranda purposes].) As Newton explains, “Miranda‘s concern is not with the facts known to the law enforcement officers or the objective reasonableness of their actions in light of those facts. Miranda‘s focus is on the facts known to the seized suspect and whether a reasonable person would have understood that his situation was comparable to a formal arrest.” (Id. at p. 675.)”

The totality of the circumstances surrounding an incident must be considered as a whole. (People v. Boyer (1989) 48 Cal.3d 247, 272, disapproved on another ground in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) Although no one factor is controlling, the following circumstances should be considered: “(1) [W]hether the suspect has been formally arrested; (2) absent formal arrest, the length of the detention; (3) the location; (4) the ratio of officers to suspects; and (5) the demeanor of the officer, including the nature of questioning.” (People v. Forster (1994) 29 Cal.App.4th 1746, 1753.) Additional factors are whether the suspect agreed to the interview and was informed he or she could terminate the questioning, whether police informed the person he or she was considered a witness or suspect, whether there were restrictions on the suspect’s freedom of movement during the interview, and whether police officers dominated and [138 Cal.App.4th 1404] controlled the interrogation or were “aggressive, confrontational, and/or accusatory,” whether they pressured the suspect, and whether the suspect was arrested at the conclusion of the interview. (Aguilera, at p. 1162.)


Fourth Amendment / Fifth Amendment difference
Criminal Defense Attorney Jay Leiderman is a California State Bar Certified Criminal Law Specialist


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