BB&K Police Bulletin: Booking Question Regarding Gang Membership Subject to Miranda Protections: Booking Exception Inapplicable If Officer Should Have Known the Question is Likely to Elicit an Incriminating Response

by Best Best & Krieger LLP

Overview: After three gang members were convicted of several murder charges, conspiracy and gang enhancements for the death of four victims, they appealed alleging the trial court erred in admitting various pieces of evidence. The appellate court found the trial court had committed only one error: admitting one of the defendants’ un-Mirandized statements made when he was booked into the jail. Finding this error was not prejudicial because the charge was supported by other evidence, the court affirmed the judgments.

Training Points: This case illustrates while jail deputies are entitled to, and permitted to continue asking pre-booking classification questions to inmates to protect jail personnel and inmates from harm, if a suspect’s responses are intended to be used against him/her at trial, Miranda warnings are required if the questions are reasonably likely to elicit an incriminating response. Courts will consider the following factors in determining whether pre-booking questions are legitimate and fall within the routine booking exception to Miranda or are a pretext for eliciting incriminating evidence:

  • The nature of the questions (whether they seek merely identifying data necessary for booking);
  • The context of the interrogation (whether questions are asked during a non-investigative clerical booking process and pursuant to a standard booking form or questionnaire);
  • The knowledge and intent of the government agent asking the questions;
  • The relationship between the questions asked and the crime the defendant was suspected of committing; and
  • The administrative need for the information sought.

Summary Analysis: In People v. Elizalde, defendants Mota, Elizande and Gomez, all Sureno gang members, were convicted of three murders that occurred over a four month period. After he was arrested, defendant Mota was taken to jail. The intake deputy testified arrestees are routinely asked three questions: (1) if they have been there before (to aid the booking officer in bringing up their information); (2) if they have any gang affiliations (so the deputies know where to put them once they come inside of intake); and (3) if they have any fears for their safety (so if a suspect reports any fear for his safety, requests protective custody or if they belong to a gang, they can go into one of the rooms to await processing). 

The deputy testified that during booking, Mota said, “Man, I’m in here for some shit that I didn’t do. They said that I killed someone, but it wasn’t me. I was there, but I didn’t kill anyone. The guy that did it is already in jail. He confessed already, but now he is trying to bring me down too…I’m a gang-banger, but I’m not a murderer..” The intake deputy asked Mota if he wanted to speak with a detective. Mota replied, “Yeah, I will, but first I should talk to my lawyer. After I talk to him, I will tell you guys what really went down.” The deputy did not ask Mota about his gang affiliation but knew Mota was in a gang.

A second deputy interviewed Mota, asking him “classification questions” for an “administrative purpose” for the arrestee’s housing. This deputy knew Mota had been charged with murder but did not (1) Mirandize Mota prior to the interview; (2) advise him that he had a right to decline to answer; or (3) tell him he was required to answer the questions. The deputy noted on the classification questionnaire Mota told him he was an active Sureno gang member and had identified himself as “affiliated with the Sureno street gang” and part of another active gang.

Mota moved to suppress his admission of gang membership arguing the deputies to whom he admitted his gang affiliation knew or should reasonably have known questions about his gang affiliation were likely to elicit an incriminating response—in this case, because of the gang enhancements—and should have given him Miranda warnings before questioning him.

The appellate court held that upon booking, while deputies are expected to ask arrestees about gang membership in order to protect both jail personnel and inmates from harm, the answers to these questions may not be used against defendants at trial in absence of Miranda warnings. The court stated when asked about his gang affiliation, Mota had two choices: (1) admit to gang membership and incriminate himself or (2) lie or refuse to answer the questions and risk physical injury when he was housed with rival gang members, noting that the price of protecting oneself from harm while in custody should not be incriminating oneself. 

Written by:

Best Best & Krieger LLP

Best Best & Krieger LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.