More than just a name: identity theft and Miranda’s booking exception

Technology has made it possible for people to conveniently store personal and financial information online. The bad news is that electronic storage makes this information available to identity thieves. According to the Insurance Information Institute, there were over 650,000 reported complaints of identity theft in 2019, a 46% increase from 2018; credit card fraud was the leading type of identity theft. The Federal Trade Commission ranks California as third in the United States of states with the most identity theft reports. Early reports indicate that there has been an increase in identity theft during the COVID-19 pandemic.

Identity theft crimes create a unique situation in cases that involve the booking exception to Miranda v. Arizona, 384 U.S. 436 (1966). During the booking process at the police station, a police officer asks a suspect biographical questions incident to an arrest. The purpose of booking is primarily administrative and not for investigative purposes.

In Miranda, the U.S. Supreme Court held that police officers must inform suspects of their right to remain silent and to have an attorney present prior to any custodial interrogation. It is settled that Miranda advisements are required only when a person is subjected to "custodial interrogation." The Supreme Court later elaborated that "interrogation" can extend to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response. Rhode Island v. Innis, 446 U.S. 291 (1980).

In Pennsylvania v. Muniz, 496 U.S. 582 (1990), the Supreme Court created the "routine booking question exception." The plurality opinion explained that routine biographical questions "to complete booking or pretrial services" did not require police officers to advise suspects of their Miranda rights if they are in custody. The court reasoned that these types of biographical questions such as name, date of birth, and address, were not intended to elicit an incriminating response. The California Supreme Court has recognized the booking exception as firmly established. People v. Elizalde, 61 Cal. 4th 523 (2015).

Subsequent case law has expanded the booking exception to any questioning by officers to gather routine biographical information. United States v. Gaston, 357 F.3d 77 (D.C. Cir. 2004) (officer questioned suspect in a row house), but see United States v. Pacheco-Lopez, 531 F.3d 420 (6th Cir.) ("Application of the booking exception is most appropriate at the station, where administrative functions such as bookings normally take place"). For example, in People v. Munoz, E063620 (Cal. App. 4th Dist., Feb. 23, 2017) (unpublished), Division 2 of the 4th District Court of Appeal, rejected the defendant's claim the booking exception did not apply because an officer questioned him about his name at a car dealership and not during booking. The Munoz court explained, "Questioning defendant about his true name was reasonably related to police administrative procedures."

Thus, generally, an officer's questions during the booking process about name, date of birth, address, height, weight, etc. are permissible because they are not for investigative purposes and are not asked to elicit an incriminating response. However, there is a tension when an officer asks a suspect these routine booking questions when the questions relate to an element of the crime, such as identity theft.

Identity theft crimes create a unique situation in the booking exception context. If a police officer places a suspect in custody for an identity theft crime, those typical booking questions are no longer neutral questions. These questions can elicit an incriminating response due to the nature of identity theft crimes. See Pen. Code Section 530.5(a) (defining identity theft). If a suspect has fraudulently used another person's identification, the suspect can answer a question asking his name with either his actual name or his fraudulent name. No matter what name he provides, the answer is incriminating.

Some federal courts have addressed this issue with federal identity theft crimes. For example, in United States v. Bernal, 8:10CR338 (D. Neb., Mar. 23, 2011), the federal district court reasoned that answering a request to disclose a name is likely to be so insignificant as to be only incriminating in unusual circumstances. The court added, "Although it may be a rare case indeed in which asking an individual his name, date of birth, and Social Security number would violate Miranda, there are situations where asking a person's name might reasonably be expected to elicit an incriminating response, for example in an arrest for impersonating a law enforcement officer or for some comparable offense focused on identity."

The California Supreme Court has not addressed the applicability of the booking exception to identity theft crimes. However, in Elizalde, the court held that an officer's questions about a suspect's gang affiliation while being processed into jail were reasonably likely to elicit an incriminating response and exceeded the scope of the booking exception based on California's gang statutes and the pending charges. The court explained that "Muniz did not create a broad Miranda exception for all questions asked during booking that are reasonably related to administrative concerns." Although the court declined to address all the limits of the scope of the exception, the court clarified it was not dispositive that the officer's questions were for administrative purposes or that the officer asked the questions for a non-investigatory purpose instead of as a pretext. Instead, the court held the proper test was whether it is based on an objective analysis of whether the officer should have known it was reasonably likely the question would elicit an incriminating response. The Elizalde court cited federal cases explaining that giving biographical information such as your name could be incriminating in certain, "unusual circumstances."

A suspect being in custody, suspected of an identity theft crime, and asked biographical questions during booking is that "unusual circumstance." In these circumstances, these biographical questions are no longer neutral questions. They are incriminating questions that an officer should know are reasonably likely to elicit an incriminating response because they relate to an element of the offense.

When presented with an opportunity, the California Supreme Court should extend the Elizalde rule to identity theft cases. The test would ask whether an officer, knowing identity theft is the suspected crime, should know it was reasonably likely that a biographical question would elicit an incriminating response from a suspect. If yes, then those otherwise routine booking questions are incriminating, and the officer should advise the suspect of his Miranda rights before questioning him. However, if the officer does not provide Miranda advisements and elicits an incriminating response, then the response should be excluded. Additionally, the court should clarify whether the booking exception applies only during booking.

The question remains how an officer would book a person suspected of identity theft crimes who invokes Miranda's protections and does not provide his name. Because the booking process is administrative, one solution is to provide the suspect with an administrative designation such as a number or alias.

With the increasing number of identity theft cases, it is critical that the California Supreme Court address the tension between the booking exception and identity theft cases. 