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Conversation between two police officers is not an interrogation of an arrested subject in this case


In 2007, Biloxi Police Officer Michael Brennan observed an African American male and three Hispanic males talking in Biloxi, Mississippi. Upon seeing Brennan, the three Hispanic males walked toward the park while the African American male began walking in another direction. Brennan observed the African American male stumbling and staggering and approached the male, Robert Jenkins, to speak to him.

Brennan noticed that there was a wad of white tissue paper in Jenkins’s mouth and requested that he remove the tissue paper and place it on the hood of the patrol car. Jenkins complied and several white rocks fell out of the paper. Jenkins quickly picked up and swallowed one of the rocks. Brennan placed the remaining rocks into an evidence bag and arrested Jenkins for public intoxication and possession of a controlled substance.

Meanwhile Officer Palmer made contact with the three Hispanic males to whom Jenkins was originally speaking. After Palmer determined that they did not need to be detained, he proceeded to meet at Brennan’s patrol car.

Standing at the rear door of the patrol car, Palmer and Brennan engaged in a conversation in which Palmer suggested to Brennan that Jenkins may have been attempting to sell cocaine to the three Hispanic males. Jenkins, who was standing a short distance away at the front of the car, overheard the officers’ conversation and stated, “how do you know I was selling to them, maybe I bought from them, maybe they’re selling.”

Jenkins was then taken to the police department where Investigator Lance Chisum gave him his Miranda rights. Jenkins waived and said the white rocks were either crack cocaine or a Vitamin B pill. Jenkins was convicted of possession of cocaine and sentenced to life as a habitual offender. On appeal, he argued Palmer and Brennan interrogated him by enticing him to talk by the side of the road when he was in custody. MCOA affirmed.


Prior to being given his Miranda rights, Jenkins made a statement to the arresting police officers after hearing a conversation between the police officers. Jenkins was handcuffed and standing by the front tire of the patrol car; Brennan and Palmer were standing by the rear, driver’s side door.

Palmer told Brennan that he had made contact with the three Hispanic males that Jenkins had been talking to and that “perhaps Mr. Jenkins was going to sell them the crack rocks. Brennan testified that Jenkins overheard that comment and said, in response, “how do you know I was selling to them, maybe I bought from them, maybe they’re selling.”

The United States Supreme Court held in Rhode Island v. Innis, 446 U.S. 291 (1980), that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent.

That is to say, the term “interrogation” under Miranda refers not only to express questioning, but also to 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.

Jenkins argues that, prior to being given his Miranda rights, he was subject to the functional equivalent of an interrogation. In Roberts, we said that functional equivalent has been defined to be “any sort of activity that the police reasonably believe will produce an incriminating response.” It is undisputed that Jenkins was in custody at the time he made the statements.

Jenkins points to Snow v. State, 800 So. 2d 472 (Miss. 2001), wherein Eric Snow shot two correctional officers in his attempt to escape from prison. Once he was apprehended, Snow and an officer were in the backseat of the patrol car, and the officer told Snow that shooting the officers was a stupid thing for him to have done. Snow’s response was “it sure was.” Although the MSC found that Snow voluntarily waived his Miranda rights, the court also noted that the officer’s comment was one that would likely elicit a response.

The facts of the current case more closely resemble the facts of Innis as opposed to Snow. In Innis, two officers were driving in the patrol car with Thomas Innis in the backseat, and the officers began discussing the safety concerns about the missing and loaded weapon in a school area.

Innis told the officers to take him back to the scene so he could show them where the gun was located. The U.S. Supreme Court held that the conversation between Patrolmen Gleckman and McKenna included no express questioning of the respondent. Rather, that conversation was, at least in form, nothing more than a dialogue between the two officers to which no response from the respondent was invited.

Moreover, it cannot be fairly concluded that the respondent was subjected to the “functional equivalent” of questioning. It cannot be said, in short, that Patrolmen Gleckman and McKenna should have known that their conversation was reasonably likely to elicit an incriminating response from the respondent.

Just as in Innis, the conversation between Brennan and Palmer was simply a dialogue between the two officers and was not the functional equivalent of an interrogation since it was not a statement or comment likely to elicit an incriminating response from Jenkins.