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police are not required to deliver the Miranda warnings at the precise moment they have probable cause for arrest


In 2002, Officer Tonya McWhirter was dispatched to investigate an accident which had occurred in the parking lot at Michael’s Restaurant in Louisville, Mississippi. McWhirter requested additional officers and Officer Greg Clark responded.

Clark began to question Joseph Levine about the accident and noticed the odor of an intoxicant coming from Levine. When questioned about the smell. Levine stated that he had consumed some drinks. According to Clark, Levine’s coordination appeared to be impaired.

At the correctional facility, Clark read Levine his rights from the Mississippi Department of Public Safety operator checklist and rights sheet. Levine choose to take the test which resulted in a reading of .108 and Clark placed Levine under arrest for driving under the influence.

Levine was convicted of driving under the influence of intoxicating liquor and sentenced to 48 hours in jail. On appeal, he argued Miranda warnings were not given on the scene. MCOA affirmed.


The U.S. Supreme Court holding in Miranda states that a person questioned by law enforcement officers after being taken into custody or being deprived of his freedom in any significant way must first be warned that he has the right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.

We hold that Levine was not in custody at the time he made the statements. The U.S. Supreme Court in Berkemer v. McCarty, 468 U.S. 420 (1984), held that motorists detained pursuant to a routine traffic stop did not constitute custodial interrogation within the meaning of Miranda.

Levine argues that his situation escalated from a routine traffic accident to a custodial setting, in an attempt to differentiate his case from Berkemer. Levine contends that he was in custody because a second officer was called to the scene.

In Goforth v. Ridgeland, 603 So. 2d 323 (Miss. 1992), there were also multiple officers called to the accident scene to investigate, prior to Goforth being arrested. In Goforth, an officer asked Goforth about his alcohol consumption and Goforth stated that he had about two drinks. Goforth also admitted that he had been driving the automobile. The MSC did not question that the responses were admissible. Therefore, the fact that there are multiple officers at the scene does not create a custodial setting.

Additionally, Levine argues that he was being investigated for a criminal charge and, therefore, was subjected to restraints associated with a formal arrest.

However, in Millsap, this court found that Millsap’s statement that there were drugs in the trunk of his car was admissible since he was not in custody within the meaning of Miranda. We said that the noncoercive aspect of ordinary traffic stops prompts us to hold that persons temporarily detained pursuant to such stops are not ‘in custody for the purposes of Miranda.

In Millsap, we found that there was nothing in the record to indicate that Millsap should have been given Miranda warnings at any point prior to the time Officer Hodge placed him under arrest. At the time of the questioning by police, Millsap had already been pulled over for speeding and the court concluded that the officer was justified and reasonable in his continued investigation, and the situation did not escalate to a custodial setting.

In Hoffa v. United States, 385 U.S. 293 (1966), the U.S. Supreme Court ruled that the police are not required to deliver the Miranda warnings at the precise moment they have probable cause for arrest. Under this holding, there was no reason for the police to stop the investigation of the accident and give Levine Miranda warnings even if the officers believed that there was probable cause for an arrest.