Legal Updates Winter 2018

When the interview became custodial the suspect should have been advised of his Miranda rights

In People v. Saldana (January 2018) the Court of Appeal, Fourth District, Division 1, California, ruled that the defendant’s incriminating statements should not have been admissible because he was not advised of his Miranda rights. From the Court of Appeal’s decision:

In a police station interrogation—with no Miranda advisements—Saldana confessed to inadvertently touching G.H. and M.H. on the vagina, outside their clothes. The jury watched a video of his confession and… found Saldana guilty of four counts of committing lewd acts…. The court sentenced Saldana to six years in prison.

In response to police request, Saldana voluntarily went to the station for questioning. He was not handcuffed and when questioning started the detective told Saldana he could leave when he wanted and would not be arrested—“right now.” However, once the detective closed the door and began interrogating Saldana, the interrogation was persistent, confrontational, and accusatory.

Courts have identified factors that are relevant in determining whether the defendant was in custody during police questioning….“No one factor is dispositive. Rather, we look at the interplay and combined effect of all the circumstances to determine whether on balance they created a coercive atmosphere such that a reasonable person would have experienced a restraint tantamount to an arrest.”…The relevant factors include:
“[ (1) ] whether contact with law enforcement was initiated by the police or the person interrogated, and if by the police, whether the person voluntarily agreed to an interview;
“[ (2) ] whether the express purpose of the interview was to question the person as a witness or a suspect;
“[ (3) ] where the interview took place;
“[ (4) ] whether police informed the person that he or she was under arrest or in custody;
“[ (5) ] whether they informed the person that he or she was free to terminate the interview and leave at any time and/or whether the person's conduct indicated an awareness of such freedom;
“[ (6) ] whether there were restrictions on the person's freedom of movement during the interview;
“[ (7) ] how long the interrogation lasted;
“[ (8) ] how many police officers participated;
“[ (9) ] whether they dominated and controlled the course of the interrogation;
“[ (10) ] whether they manifested a belief that the person was culpable and they had evidence to prove it;
“[ (11) ] whether the police were aggressive, confrontational, and/or accusatory;
“[ (12) ] whether the police used interrogation techniques to pressure the suspect; and
“[ (13) ] whether the person was arrested at the end of the interrogation.”

Where, as here, police indicate to the defendant their resolute belief he committed the crime, the custody inquiry becomes whether a reasonable person in the defendant's situation—i.e., having been told by the police that they know he committed the crime—would think he was free to break off the interview and leave….. Courts have concluded that, under the circumstances of the particular case, advising the suspect that he was not under arrest and was free to leave was insufficient to support a conclusion that he was not in custody for purposes of Miranda.

Taking into consideration all the factors, we hold that well before Saldana's confession, a reasonable person in his circumstances would not have felt free to leave. Thus, Saldana was in custody during the interrogation and his confession was inadmissible.

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Promises on leniency nullify the admissibility of the confession

In US v Poor Bear (January 2018) the US District Court, D. South Dakota, Western Division upheld the decision that the defendant’s incrimination statements were the result of coercive behavior in that the investigators made promises of leniency to the defendant (who was suspected of illegal drug activity). From the court’s opinion:

The investigators advised the suspect of the following: You say you haven't dealt with any Hispanics or Mexicans or anything and that is not true, okay? We know those things. So we need to start addressing it. Okay? The best way now is to start, you are not charged right now federally, okay? We can start that process. And we go talk to our prosecutor and we can say—we talked to Julissa. Okay, she was truthful with us, we can use those things to your advantage.
• But I can guarantee you this—we know enough that I am going to be presenting your case to a federal grand jury. That is how that works. They decide what you get charged with, if you get charged with anything. We are there, if that makes sense. Does that have to happen? No. But if we walk out of here today and all we talk about is that Julissa is lying to us about not being involved, then obviously what do you think we have to do, we have to proceed forward with that, correct?
• But if you want to take advantage of this situation, this time you are spending with us and tell us the truth, okay, then there is all kinds of decisions we can make. But right now the only decision we are going to make is this month I am going to go to a federal grand jury and I am going to talk about Julissa Poor Bear and everybody she is dealing with. That is what I am going to do. If you don't want that to happen, then you need to start telling us things that are truthful.
• But just understand what the reality of that is, what your future is going to bring. We are going to charge people with things like this, okay, ten year mandatory minimum federal prison sentence. What that means is if you are convicted, if you are convicted, you would have to go to prison for ten or more years.... The only way to get below that is to be truthful about it so that the federal prosecutor can tell the judge okay, we don't want somebody like Julissa Poor Bear to be sentenced to ten years or more; we want you to be able to sentence her below that. The only way that happens is truth coming out of Julissa Poor Bear's mouth.
• We know how Julissa Poor Bear can help herself out, by being truthful. Okay? Because if we—we already know some of those things. So it is what it is. But how do you get below that ten year thing that we were talking about? How do you get possibly not even charged? And I'm not saying that that's even a possibility, decisions that we don't make. A federal prosecutor is going to make some of those decisions. But she's going to make some of those decisions based upon—we've decided to come talk to you.

The magistrate judge determined SA Cooper employed implied promises of leniency to obtain defendant's statements.

The government correctly points out SA Cooper did not expressly promise defendant leniency in exchange for confessing. But the government's argument on whether he made implied promises is not convincing. In the government's view, SA Cooper did no more than explain how “defendant was at a ‘crossroads', meaning there were alternatives available for the case direction, which could be impacted by the defendant's decisions.”

Early in the interrogation, SA Cooper established that defendant had yet to be indicted, but charges were on the horizon…. He directly stated that if she provided certain information, he would not present the case against her to a grand jury. Id. (“I am going to go to a federal grand jury and I am going to talk about Julissa Poor Bear and everybody she is dealing with. That is what I am going to do. If you don't want that to happen, then you need to start telling us things that are truthful.”).

Any reasonable person—aware that getting indicted was likely, told that the indictment could be delayed or prevented by telling an agent what he wants to hear—would understand SA Cooper as impliedly promising leniency in exchange for a confession.
Based on the totality of the circumstances, SA Cooper impliedly promised leniency in the form of no indictment or a lower sentence if defendant would confess. “It [is] improper ... to use this deceptive promise of leniency in the course of the interrogation.”

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Officer’s questions to defendant while at door of her residence, were compelling, thus giving rise to the need for Miranda warnings

In State v. Esquivel (November 2017) the Court of Appeals of Oregon ruled that the officer's questions to defendant while at the door of her residence residence, were compelling, thus giving rise to the need for Miranda warnings. From the court’s opinion:

We state the relevant facts consistently with the trial court's explicit and implicit factual findings. On February 5, 2014, Detectives Roberts and Myers went to defendant's home to talk to her about recent thefts at a Safeway store. Both detectives were in uniform, wore badges, and drove marked patrol vehicles. Upon arrival, Roberts saw defendant's car and went to her front door and knocked several times. Although no one responded, the detectives knew that someone was home because they peered through a window in defendant's door and saw a woman who matched defendant's description. They then called her phone twice and left her a voicemail. A few minutes later, dispatch called the detectives to tell them that defendant was attempting to reach them, so they called her back and asked her to come to the front door so they could interview her. She replied that she did not want to do that because she was naked and sick.

Roberts gave defendant two options. First, if she refused to answer questions at her door, he would obtain a warrant to arrest her in her home. Alternatively, she could talk to him at her door and receive a citation instead of being arrested. Defendant then agreed to speak with detectives at her door.

During the questioning, defendant remained in the doorway, and the officers stood a couple feet away from her outside the door. Roberts informed defendant that they were investigating two incidents of theft at a local Safeway store. Defendant denied stealing anything and continued to do so when asked repeatedly. Roberts then told defendant that there was physical evidence of the thefts and asked for her cooperation, chiding her for continuing “to say that she didn't steal it even though there was video and a store manager witnessed her do both events.” Finally, after he told her that she was under arrest, defendant responded, “Fine, I'll admit guilt.” Roberts asked defendant to clarify her statement and, according to the officer, she responded that he had “accused her of stealing twice so she was cooperating by admitting guilt,” and that she “wanted her ticket now.” Roberts then took defendant to jail.

At the conclusion of the pretrial hearing on her motion to suppress, defendant argued that her statement was made under compelling circumstances, because Roberts's questioning was very aggressive and she did not feel that she was free to end the interrogation because she could not leave without being arrested…. The court reasoned that defendant had options for responding to the officers once she was arrested, including the option of continuing to deny her guilt. Observing that defendant's statement was not offered in relationship to a question, the court declined to suppress it.

To determine whether the circumstances before defendant's arrest were compelling, we must examine “how a reasonable person in [defendant's] position would have understood [the] situation.” If a reasonable person “would have felt compelled to answer a police officer's questions,” then the circumstances are compelling… That inquiry requires us to consider the totality of the circumstances to determine “whether the officers created the sort of police-dominated atmosphere that Miranda warnings were intended to counteract.” Factors to consider include (1) the location of the encounter; (2) the length of the encounter; (3) the amount of pressure exerted on the defendant; and (4) the defendant's ability to terminate the encounter. No single factor is dispositive, nor do we apply each factor mechanically. As the trial court correctly observed, the first two factors do not weigh in favor of finding that the circumstances at issue here were compelling. However, the third factor requires more discussion.

We begin by addressing the first two factors. As to location, generally, questioning a suspect at a location familiar to her, as happened here, will tend not to be compelling. Likewise, the length of the encounter here—about 15 minutes—tends to suggest that circumstances were not compelling—though even in a short encounter, if the interaction between the police and the defendant was coercive, an encounter may be deemed compelling…. Nevertheless, as we explain, this case turns on the third factor—the amount of pressure exerted by Roberts during the interview—that is, whether Roberts created compelling circumstances when he told defendant that, if she “cooperated,” he would issue a citation as opposed to securing a warrant to arrest her.

Here, Roberts' questioning was sufficiently coercive to give rise to compelling circumstances. Roberts explained to defendant that there was video of her committing the crime and that he believed he had enough evidence to secure a warrant for her arrest. Additionally, the “options” he presented to her demonstrated an intent to arrest her if she did not cooperate. Based on the totality of circumstances, we conclude that, by giving defendant the option of cooperating and receiving a citation or being arrested, Roberts created a coercive environment that made the circumstances compelling and created a need to administer Miranda warnings. The failure to do so violated Article I, section 12.
The trial court found that defendant's statement, “Fine, I'll admit guilt,” occurred some moments later, after Roberts indicated that she was under arrest. Nevertheless, we reject the state's argument that the fact that defendant's admission was not in response to a question ends our inquiry. Instead we must examine whether defendant's later admission “derives from or is a product of that constitutional violation.” We conclude that it did. At the time she made the admission, defendant was responding to continuing pressure to admit to the thefts and to the officer's assertion that she must cooperate in order to receive a mere citation. Indeed, defendant followed her admission with the assertion that she “wanted her ticket now.” Under those circumstances, a reasonable person in defendant's position would have felt compelled to cooperate with the officer in order to avoid going to jail, and defendant therefore remained in compelling circumstances. Reversed and remanded.

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Lying about DNA evidence is not coercive

In Orellana v. Madden (October 2016) the US District Court, C.D. California ruled that lying about DNA evidence was not coercive. From the court’s opinion:

Petitioner asserts…. that the trial court should have excluded those statements because they were obtained through coercion. In particular, Petitioner complains that the detective intentionally misled Petitioner by asserting that the police had obtained DNA evidence from the victim showing that Petitioner had sexually molested her, when, in fact, no such evidence existed.

Although the court of appeal noted that the detective deceived Petitioner about the existence of DNA evidence, the court of appeal explained that such deception is permissible.

Although several factors are considered in determining whether a confession is involuntary, “coercive police activity is a necessary predicate to [a] finding that a confession is ‘[in]voluntary’ within the meaning of the Due Process Clause.” … In addition to the level of police coercion, other relevant factors include the length of the interrogation, its continuity, and the defendant's maturity, education, physical condition, and mental health. “It is not sufficient for a court to consider the circumstances in isolation. Instead, ‘all the circumstances attendant upon the confession must be taken into account.’ ”

Here, having considered the totality of the circumstances, the court of appeal reasonably could have concluded that Petitioner’s pre-trial statements were not the product of police coercion. First, the interrogating detective committed no misconduct in misleading Petitioner about the evidence against him.

Police deception alone will not render a confession involuntary…. Thus, police generally can lie to a suspect about, for example, the extent of the evidence against the suspect or feign friendship with the suspect without fear of rendering the resulting confession involuntary. Here, the detective, at most, lied to Petitioner about the existence of DNA evidence linking Petitioner to the victim. But, as the foregoing precedent makes clear, employing such lies to extract incriminating statements from a criminal suspect is a permissible interrogation tactic.

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Lying about footprints, fingerprints and other evidence is not coercive

In State v. Johnson (January 2018) the Court of Appeals of South Carolina found that lying about evidence was not coercive. From the court’s opinion:

Next, Johnson argues the circuit court erred in finding his confession was voluntary because police misrepresented the evidence to him …… “Misrepresentations of evidence by police, although a relevant factor, do not render an otherwise voluntary confession inadmissible.” “Both this [c]ourt and the United States Supreme Court have recognized that misrepresentations of evidence by police, although a relevant factor, do not render an otherwise voluntary confession inadmissible.... The pertinent inquiry is, as always, whether the defendant's will was ‘overborne.’ ”

Investigators Coker and Moore told Johnson the trunk of his car was analyzed and only his fingerprints were found, his shoe matched a footprint left from kicking in the door, his ring matched a wound left on Kaisha, and one could hear him in the background of the 911 calls. The primary evidence repeatedly referenced by the Investigators related to the 911 calls, which they claimed made Johnson's story impossible to believe. While this information was either unconfirmed or inaccurate, courts have routinely held the misrepresentation of evidence does not render a confession involuntary unless it is demonstrated the free will of the defendant was overborne.

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Court finds confession inadmissible due to denial of subject’s request for an attorney

In State v. Wirkkala (February 2018) the Court of Appeals of Oregon ruled that the police impermissibly continued their interrogation after defendant invoked his right to counsel, that the trial court therefore erred in denying the motion to suppress, and that the error was not harmless. From the court’s opinion:

The police interrogation took place at the police station on the night of the shooting, and involved defendant, Officer Hatoor, and Detective Knea. Knea began by reading defendant his Miranda rights. Knea then began asking what he described to defendant as “preliminary” questions, which defendant answered. After approximately five minutes, the following exchange occurred:
“[DEFENDANT]: We moved here in May.
“DETECTIVE KNEA: That was going to be my next question. Okay. Who else is—so there's another male that was at the house. What's his name?
“[DEFENDANT]: (Pause.) What was his name?
“OFFICER HATOOR: What was his name?
“[DEFENDANT]: I appreciate the hospitality here, fellas, but I think I'm going to get a lawyer.
“DETECTIVE KNEA: Okay. Well, that's obviously something that you have a right to, like I said, okay?
“[DEFENDANT]: His name was [the victim].
“DETECTIVE KNEA: And—and I—I understand that there's probably a little bit of trepidation about talking to me, okay? However, I don't know what happened, dude, at all.
“[DEFENDANT]: Well, [n]either do I.
“[DEFENDANT]: So get in fuckin' line. Sorry. Sorry. That was rude. Go ahead.”

Knea's response is also inconsistent with an understanding that defendant had thereby demonstrated a willingness “to enter into a generalized discussion of the substance of the charges” or investigation. On the contrary, Knea's immediate response (“I understand that there's probably a little bit of trepidation about talking to me, okay? However, I don't know what happened, dude, at all.”) invited (or even pressured) defendant to speak, reflecting an awareness that defendant was reluctant to do so. Knea then continued to make remarks that appear to have been aimed at provoking defendant into talking further. In short, we reject the state's argument that defendant waived his right to counsel by reinitiating a discussion with police.

Accordingly, police questioning should have stopped after defendant invoked his right to counsel. Knea's comment constituted improper additional interrogation because police should have known that comment was “ ‘reasonably likely to elicit an incriminating response.’ ” Therefore, the trial court erred in denying defendant's motion to suppress.

In arguing that any error was harmless, the state points out that it “relied on the recording not for the substance of defendant's statements, but instead to show that his demeanor upon arrest was different from his demeanor during trial[.]”…. Reversed and remanded.

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Court suggests police used Assistant Principal to question student to avoid the advisement of rights

In D.Z. v. State (February 2018) the Court of Appeals of Indiana ruled that “D.Z. was submitted to a custodial interrogation at which he should have been advised of his rights pursuant to Miranda” when he was questioned in school by the Assistant Principal. From the Court of Appeals opinion:

Around February or March 2017, graffiti of a sexual nature began to appear on the walls of the boys' restrooms at Brownsburg High School, in Indiana. Assistant principal Dowler commenced an investigation to find the person responsible and reviewed surveillance video footage of the hallways where the related bathrooms are located. On March 15, 2017, Dowler reported “mischief of vandalism and graffiti” on the bathroom walls and stalls to Officer Flynn and requested his assistance with the ongoing investigation. Officer Flynn is a police officer with the Brownsburg community schools and is employed “by the school for law enforcement duties.” In that capacity, he is “called to investigate allegations of misconduct within the school.” … After reviewing the surveillance video, both Officer Flynn and Dowler pinpointed seventeen-year-old D.Z. as a suspect.

On March 17, 2017, Dowler called D.Z. down to his office for a “discussion” right before the “[e]nd of the day.” Dowler questioned D.Z. in his office with the door closed. D.Z. was not offered the opportunity to speak to a parent or guardian prior to the commencement of the interview, nor was his parent or guardian contacted prior to D.Z.'s removal from class. During this conversation, D.Z. was not advised that “he had a right not to answer questions that might incriminate himself.” Dowler informed D.Z. that he had been “tracking some restroom graffiti” and explained the investigation to him. Dowler clarified that he “knew that [D.Z.] was the one that was responsible for graffiti on the wall.” D.Z. responded that he didn't know why he did it. After D.Z. showed remorse, Dowler told him that “what [he] did was wrong and so we're going to have to definitely take care of it.” Dowler suspended D.Z. for five days. After his discussion with D.Z., Dowler left the room and informed Officer Flynn that D.Z. had “admitted to the messages/writing on the wall.” Dowler then contacted D.Z.'s father. Meanwhile, Officer Flynn, in full police uniform, entered Dowler's office and spoke to D.Z. The officer did not advise D.Z. of his constitutional rights, contact D.Z.'s father, or record the interview. Eventually, at the end of the interview, Officer Flynn “let [D.Z.] know he was being charged with a crime.”

Turning to the facts before us, we conclude that D.Z. was submitted to a custodial interrogation at which he should have been advised of his rights pursuant to Miranda. The evidence establishes that after Dowler and Officer Flynn's investigation was complete and a suspect was identified, Dowler called D.Z. to his office for a discussion. The assistant principal questioned D.Z. in his office with the door closed. No reasonable student would have believed that he was at liberty to leave the office—it is undeniable that juveniles are susceptible to the influence of authority figures and the constraining effect of being in a controlled setting of a school, where “disobedience [can be] cause for disciplinary action.” … As such, the circumstances of a school setting—where a refusal to comply with the request or command of school officials can have far-reaching consequences, including potential criminal charges—have become inherently more coercive recently than ever before in the past.

Although on its face appearing to be a school disciplinary proceeding, the ‘discussion’ between Dowler and D.Z. amounted in essence to an interrogation, geared towards a criminal proceeding. When Dowler reported the “mischief of vandalism and graffiti” to Officer Flynn and requested his assistance with the ongoing investigation, the school and law enforcement investigations became inextricably intertwined and Dowler was aware that criminal charges could ensue. In his office behind closed doors, Dowler explained the nature and method of the investigation to D.Z. After D.Z. made the incriminating statements, Dowler ended the conversation, imposed a five-day school suspension, and immediately informed Officer Flynn, who was waiting outside Dowler's office, of D.Z.'s admission. Without advising D.Z. of his Miranda rights, Officer Flynn proceeded to interrogate the student. Conceding that the officer should have Mirandized D.Z., the State now relies on D.Z.'s statements to the assistant principal as the basis to bring criminal charges against him. This sequence of events strongly suspects that the assistant principal and the officer were purposefully exploiting the school administrator's assumed ability to question without warnings and raises troubling echoes of the “confession-first” mode of interrogation found problematic by our United States Supreme Court in Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004). If we no longer allow the Seibert interrogation technique in the stationhouse, why should we bless it in the schoolhouse?

Police officers cannot avoid their duty under Miranda by attempting to have someone act as their agent in order to bypass the Miranda requirements… All relevant factors indicate that D.Z. was in custody and deprived of his freedom. He was being interrogated by Dowler in an effort to elicit incriminating statements about vandalizing the restroom without being informed of his rights, and he confessed without full knowledge of the consequences for so doing. Because the assistant principal and Officer Flynn acted in concert in obtaining these incriminating statements, and both were aware of the probability of criminal charges, D.Z. should have been advised of his Miranda rights. Absent these warnings, the juvenile court abused its discretion in admitting D.Z.'s statements to the assistant principal. As a consequence, we conclude that the State cannot establish beyond a reasonable doubt that D.Z. committed criminal mischief, if committed by an adult. We reverse the juvenile court's finding of delinquency.

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