By summary order dated June 21, 2021, the Second Circuit reaffirmed limitations on law enforcement’s ability to elicit so-called pedigree information after an arrest.
In United States v. Durand, No. 20-1992, the defendant requested a lawyer and did not waive his Miranda rights following arrest. Nonetheless, officers asked him about his phone number, purportedly as part of the administrative booking process. Typically, law enforcement may ask a detainee certain biographical or pedigree information without running afoul of Miranda. However, without a Miranda waiver, police may not ask questions during the booking procedure that are designed to, or that officers have reason to know will, elicit an incriminating response. There are no categorical exemptions from Miranda for certain booking questions and the issue is highly fact-specific.
In Durand, the Circuit held that officers should have known that their post-arrest questioning of the defendant regarding his phone number was likely to elicit an incriminating response since, among other things, they had already developed a list of phone numbers likely connected to the case. Their questioning thus violated Miranda.
Nonetheless, the Circuit found no error in the district court’s failure to suppress information about the number, because it would have inevitably been discovered: the government seized the defendant’s phone at the time of his arrest and already had probable cause sufficient to get the subscriber information for his cellphone.