2008 LEGAL UPDATE
CONFESSION LAWEdited by: Ray Hill, Santa Rosa Junior College
(707) 527-4845This syllabus contains summarized case law decisions from the U.S. Supreme Court, California Supreme Court, California District Court of Appeals, and Ninth U.S. Circuit Court of Appeal. It is prepared for educational use only. The information contained herein is subject to department policy and the interpretation of your District Attorney's Office prior to its use.
RIGHT TO COUNSEL
SIXTH AMENDMENT RIGHT TO COUNSEL DOESN’T APPLY TO QUESTIONING ON A SEPARATE, THOUGH CLOSELY RELATED OFFENSE (U.S. v. Mir, 4USCA, 2008).
The defendant was an attorney who had been indicted on several counts of immigration fraud. He was represented by counsel. After indictment, federal agents discovered evidence that the defendant was soliciting some of his clients to lie about the cases. Two clients agreed to assist and recorded conversations with the defendant which incriminated him at trial.
1) USCA ruled there was no “Massiah” violation in eliciting statements about an uncharged crime. The Sixth Amendment right to counsel is “offense specific” and applies only to the charges on the criminal complaint or indictment. “Mir’s invocation of his Sixth Amendment right to counsel as to the labor certification fraud charges did not insulate him from the government investigation of another separate crime - the serious offense of witness tampering”. “The Supreme Court in Cobb (Texas v. Cobb, U.S., 2001) made clear that
there is no exception to the offense-specific nature of the Sixth Amendment for uncharged offenses which are ‘factually related’ or “’inextricably intertwined’ with a charged offense”.
CUSTODY
ALTHOUGH THE DEFENDANT WAS TOLD THAT HE WAS NOT UNDER ARREST, HE WAS IN CUSTODY FOR THE PURPOSES OF MIRANDA (U.S. v. Colonna, 4USCA, 2007).
The FBI served a search warrant on the defendant’s home for evidence of child pornography. 23 agents entered the home and forced entry into the defendant’s bedroom at gunpoint. Defendant was ordered to get dressed, directed downstairs, “guarded at all times”, and eventually accompanied agents to an FBI vehicle parked behind the house. Defendant was told that he was not under arrest and he agreed to speak. He was interviewed inside the car for three hours. Agents did not seek a Miranda waiver. Incriminating statements were obtained connecting the defendant with evidence found on a computer inside the home.
1) USCA ruled that the statements were inadmissible. Custody attaches for the purposes of Miranda when a reasonable person would believe that his / her freedom is being restricted to that degree associated with an actual arrest. Here, 23 agents “inundated” the house, awakened the defendant at gunpoint, controlled his movements, and he was “bracketed” by two agents while being questioned for lengthy period inside the car. Merely telling the defendant that he was not under arrest did not counterbalance the custodial circumstances that were present.
RESTRAINED DETENTION IS CUSTODY FOR THE PURPOSES OF MIRANDA (U.S. v. Revels, 10USCA, 2007).
Seven ATF&E agents and Tulsa Police officers went to the defendant’s home to serve a search warrant for cocaine. They forcibly entered, handcuffed the defendant, and detained her for 30 minutes while a search was conducted. After the search, three officers escorted her into a back bedroom, closed the door, removed the handcuffs, and asked her if she was willing to cooperate with the investigation. Defendant responded by making incriminating statements. No Miranda warning was given.
1) USCA suppressed the statements. Though not formally placed under arrest, the defendant was in custody because her freedom of movement was substantially restrained and she was not free to leave. The manner of investigation hardly qualified as a “traditional comfortable environment”. “Seven police officer abruptly roused Revels and Murphy from their bedroom after forcibly entering their home. Revels was immediately detained, restrained in handcuffs, and placed face down on the floor”.
Officers separated her from her children, moved her into a back room, and confronted her with the drugs which had been discovered during the search. She was in constructive custody for the purposes of Miranda. “Revels would have reasonably felt compelled to cooperate with the police”.
DEFENDANT WASN’T IN “MIRANDA CUSTODY” WHEN HE SELF-INITIATED A PHONE CALL TO A DETECTIVE (Saleh v. Fleming, 9USCA, 1/08).
Defendant was a suspect in the murder of his ex-wife (the beating left indentations in the victim’s skull and her sinus bones were crushed and driven back into her brain). Nearly two years after the crime, the defendant was interviewed in jail by a Seattle Police detective. The defendant was in custody serving time for another assault. Upon being presented with a written copy of a Miranda admonition, the defendant asked for an attorney. The interview ceased. The following day, the defendant placed a collect phone call to the detective and began discussion about the case. Questioning took place over the phone and the defendant made incriminating statements about committing the murder. He was not given Miranda prior to the phone conversation.
1) 9USCA ruled the defendant voluntarily reinitiated the conversation and was not in “Miranda custody” during the phone call. The Miranda requirement triggers only by “some restriction on his freedom of action in
connection with the interrogation itself”. “It is undisputed that Saleh could have terminated the phone call he had begun at anytime”.SHOOTING VICTIM WAS NOT IN CUSTODY WHEN QUESTIONED IN THE EMERGENCY ROOM (U.S. v. Jamison, 4USCA, 2/08).
Three officers were talking near the entrance to the University of Maryland Hospital emergency room when a vehicle arrived with a shooting victim. The victim told the officers: “I’ve been shot, man, I've been shot”. He was taken inside for medical treatment. It was determined he had been shot in the groin. When an officer questioned him, the victim said he’d been shot while trying to purchase drugs. An officer bagged the victim’s hands. This was standard department procedure in shooting cases to preserve any GSR evidence. A detective arrived and questioned the victim further. Based upon statement inconsistencies, the bullet path of travel, and the fact there was no bullet hole in the victim’s clothing, the detective believed the defendant was being untruthful about what had occurred. He confronted the victim and he admitted that he had accidentally shot himself. A firearm was located abandoned near some vending machines, apparently placed there by another vehicle occupant. The victim (now defendant) was a convicted felon and charged with unlawful possession of a firearm. He argued for suppression of his statements on grounds that he should have been Mirandized prior to questioning. This was because he was restrained by virtue of being strapped to a gurney and an I.V. placed in his arm. the GSR bagging “effectively paralyzed his hands”, and he was questioned in a “police-dominated environment”.
1) USCA ruled the defendant was not in custody for the purposes of Miranda. The defendant himself sought medical treatment and initiated contact with the police. The medical procedures were applied by hospital personnel, not the police. The fact the defendant’s hands were bagged would not lead a reasonable person to believe they couldn’t decline police questioning.
FIFTH AMENDMENT - COUNSEL
EQUIVOCAL MENTION OF A LAWYER DOESN’T INVOKE ONE’S MIRANDA RIGHTS (Peo. v. Simons, 2DCA, 2007).
Defendant was arrested for the “lying in wait”, shotgun murder of his 17 year old wife. He waived his Miranda rights. After some questioning by detectives, the defendant asked: “How long would it take for a lawyer to get here for me?” Detectives replied that they would cease questioning if the defendant so wished. Defendant stated: “I mean how long would it take?” Detectives told him that if he could not afford an attorney, the court would appoint one, but that wouldn’t happen until he went to court. Detectives asked if the defendant wanted to continue talking. He replied that he did and incriminating statements were obtained. Defendant was convicted and sentenced to LWOP.
1) DCA ruled the defendant never clearly and unequivocally invoked his right to counsel. Merely talking about how long it would take to get a lawyer doesn’t meet this standard. Because there was already a Miranda waiver in effect, there was no legal requirement for detectives to clarify an ambiguous statement. Nonetheless, they attempted to clarify the defendant’s statement and gave him the choice to speak or remain silent.
FIFTH AMENDMENT - SILENCE
“I PLEAD THE FIFTH” INVOKES A SUSPECT’S MIRANDA RIGHTS (Anderson v. Terhune, 9USCA, 2/08).
A Shasta County investigator questioned the defendant about his involvement in a murder. The defendant initially waived Miranda, but during questioning stated: “I plead the Fifth”. The investigator replied: “Plead the Fifth - What’s that?” The investigator continued questioning and eventually received a confession.
1) 9USCA ruled the statement: “I plead the Fifth” was not ambiguous or equivocal, and was not subject to further clarification. “This is not a case where the officers or the court were left scratching their heads as to what Anderson meant”. The defendant clearly demonstrated an intent to remain silent and “the officer knew what ‘I plead the Fifth’ meant”. The defendant’s further statement was suppressed.
UPON A MIRANDA ADMONITION, AN OFFICER MUST CLARIFY AN AMBIGUOUS MENTION OF SILENCE OR COUNSEL IN ORDER TO QUESTION FURTHER (U.S. v. Rodriguez, 9USCA, 3/08).
A National Park Service Ranger stopped the defendant's pickup truck for erratic driving and suspected in DUI in the Lake Mead National Recreation Area in Nevada. Upon approach, the ranger saw the handle of a pistol protruding from a bag in the bed of the truck. Upon further inspection, the pistol was equipped with a homemade silencer. A further search of the truck revealed a .40 pistol under the driver's seat. The ranger gave the defendant a Miranda admonition. When asked if he wished to talk, the defendant replied: “I'm good for tonight”. The ranger understood this to mean the defendant was willing to speak, but did not initially ask any questions. A short time later, the ranger began questioning. The defendant made incriminating statements admitting ownership of both weapons. Defendant was a convicted felon.
1) 9USCA suppressed the statement ruling the ranger should have clarified the defendant's ambiguous / equivocal response before questioning. “I'm good for tonight” could mean the defendant is OK with speaking or the opposite interpretation - no thanks. Upon a Miranda admonition, if an officer receives an ambiguous or equivocal response about silence or counsel, this response does not invoke the privilege against self-incrimination. On the other hand, neither does it waive the privilege. An officer must clarify the response further to determine what the suspect's intentions are. The ranger's failure to clarify this ambiguity made the statement inadmissible.
2) The court distinguished a pre-waiver, ambiguous statement from a post-waiver, ambiguous statement. If a suspect has already waived his / Miranda rights, then makes an ambiguous or equivocal statement about silence or counsel, an officer is under no legal duty to clarify. Questioning may proceed until such time that a suspect makes a statement that clearly asserts his / her rights.
INTERROGATION
SURREPTITIOUS RECORDING OF TWO MURDER SUSPECTS WHO HAD INVOKED THEIR MIRANDA RIGHTS IS PERMISSIBLE (Peo. v. Jefferson, 2DCA, 2008).
Defendant, a member of a Compton street gang, was arrested for the drive-by murder of a rival gang member. He and another co-principal were first interviewed separately and both invoked their Miranda rights. In the hopes of obtaining a further statement, Los Angeles Sheriff investigators placed both suspects into a “bugged” holding cell. It wasn’t long before both began talking about their involvement in the murder!
1) DCA ruled the act of placing the suspects together in a place of confinement. where there was a likelihood that they would speak to each other. is not an “indirect method of questioning”. Even though deputies expected the suspects would converse, such an action is not the functional equivalent of interrogation (words or actions by the police reasonably likely to produce an incriminating response). “Jefferson and Staten were more than just cellmates. They were friends and neighbors. They spoke freely - too freely, they now realize. From their perspective, the problem was the opposite of compulsion. They were candid because they thought no one else was listening, not because they were getting the third degree”.
COPYRIGHT 2009 - Ray Hill, Santa Rosa Junior College. Reproduction for in-service training purposes within criminal justice agencies or for classroom instruction purposes in educational institutions is permitted with permission from the author. Commercial or other use is prohibited without permission from the author.