Why Won't Anyone Talk To Me?

• You have the right to remain silent when questioned.
• Anything you say or do may be used against you in a court of law. 
• You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future.
• If you cannot afford an attorney, one will be appointed for you before any questioning, if you wish.
• If you decide to answer any questions now, without an attorney present, you will still have the right to stop answering at any time until you talk to an attorney.
• Knowing and understanding your rights as I have explained them to you, are you willing to answer my questions without an attorney present?

Well...are ya, punk?

Not Miranda, but Lorre looking like he needs some "coaxing."

Every writer of crime fiction runs into the Miranda Warning sooner or later.  How many TV episodes have ended with, "You have the right to remain silent..."?  There's just no getting away from those famous words arising from a 1966 Supreme Court decision regarding the Fifth and Sixth Amendment rights of one Mr. Miranda.  It was decided that his admissions during police questioning  leading to his conviction for rape and kidnapping were inadmissible, as he did not fully understand his right against self-incrimination, or the right to have an attorney present during questioning.  Out of that decision arose the warning that all U.S. police must give prior to custodial interrogation of a suspect.

A lot of young officers come out of the academy wringing their hands and mumbling the Miranda Warning over and over in their anxiety.  It's a mantra they don't feel comfortable going a day without saying for fear of running afoul of someone's civil rights.

Citizen: "Officer, can you help me find Fluffy, my cat?  I'm so afraid something's happened to her." 
Police Officer: "Of course, ma'am, I'd be happy to, but did you know that you have the right to remain...."

Not everybody needs to be delivered their Miranda rights.  It's okay for the police to talk with citizens, and even interview them without the Miranda litany occurring on every occasion.  It's a fairly simple formula that results in the mandatory warning: Interrogation + custody=Miranda.  And therein lies that grey area the police find themselves in so often.  What exactly is "interrogation" and "custody"?  Are interviews the same as interrogation?  If a person is in the police building, is he/she in custody?  We damn sure know what the Warning is, but the application can get fuzzy.  Maybe it's best just to sing it out from time to time in case someone's thinking of confessing.

Police interviews can be described (by me, at least) as the questioning of potential witnesses, complainants, victims, and even those temporarily detained at the scene of a crime or accident.  The object of such interviews is to determine exactly what has occurred and who may be involved or have witnessed the incident.  I know what you're thinking--if someone's been detained, don't you have to Mirandize them?  The short answer is no.  Not always and not if the officer is yet to determine that a crime, in fact, has been committed, and that the person he is speaking with is a suspect.  Once a person becomes an active suspect the relationship changes; especially if he has been detained.  The officer would be wise to read him his Miranda Warning at that point, if he's going to continue questioning him.  Now it's now longer an interview, with the overarching goal of determining the circumstances and players, but an effort to determine the amount of involvement by the suspect.  In other words, he has become the object of the questioning, and that's interrogation.

But what if this happy individual is a suspect, and you the police officer are interrogating him, but he's not in custody?  Example: You're sitting across from him in his own living room firing questions, while he answers them with a patient, but weary, air.  Does he get the Miranda or no?  Again, the short answer is no.  Even though he's being interrogated, he's not in custody.  He's in his own home, no cuffs or restraints are involved, and you don't have half a dozen uniformed officers surrounding him (hopefully).  That being said, it would probably be wise to do so, because if he does make any admissions, his attorney is going to do his very best to have them thrown out.  The absence of a Miranda Warning will form the centerpiece of this effort, and he will cite his client's trusting nature and ignorance of his right to have an attorney present as reasons to do so.  Attorneys have argued in the past that the mere presence of a police officer creates a custodial environment.  My own children would have agreed; fortunately the courts haven't yet gone that far, but you can see how skittish these things can make the police.

Even the suspect that voluntarily comes into the police department in order to be questioned is not necessarily considered to be in "custody."  So long as he understands that he is free to  leave the situation doesn't rise to the level of "custodial interrogation."  But the officer has to be very careful here.

Do suspects voluntarily confess?  Yes, yes they do.  And it even happens without the torture techniques for which the police are so well known.  There's several reasons for this in my experience.  One is that they just can't contain their guilt.  I know that seems a very antiquated notion these days, guilt, but there are some poor souls genuinely afflicted with conscience.  Fortunately for defense attorneys their number seems to be decreasing.

Another reason is to cut a deal.  I would say that this is the most common reason--self interest and preservation.  They're the practical ones--they know their butt (or some other appendage) is in a wringer and they want to cut their losses.  These kind of arrangements require the blessings of the prosecutor, as the police are not generally allowed these powers without him/her granting them.  The defendant's attorney is, no doubt, going to be part of these negotiations.

Inadvertent.  This category actually falls more into the "admission" category than the genuine confession.  Suspect is much smarter than the police and enjoys letting them know it.  This usually ends with the suspect stopping in mid-sentence with an expression of growing horror on his face as it dawns on him what he has just let slip.  Sorry, after the Miranda Warning, there's no take-backs.

In closing, it's worth mentioning the Miranda Waiver.  Most states issue the police cards with both the Miranda Warning and a Waiver printed on them.  If the suspect wishes to cooperate, the waiver is signed, along with a block acknowledging that they have been read their rights and understand them.  Here in New Jersey we also have a requirement to videotape interrogations that occur within the police department.  As nearly everyone is convinced that confession=torture/coercion, the reason for this is obvious.

Now, is there anything you want to confess?  I'm all ears.

Search And Seizure

by David Dean

A few months ago I had the honor of presenting at the annual Pennwriters conference in Lancaster, PA.  As some of you may remember, I had definite qualms about whether I was up to this task as it lay outside my comfort zone.  In the event, nothing was thrown at me, and those that had not actually fallen asleep, said they found my talk very soothing.  So I counted my class on short story writing an unqualified success.

The attendance at my next scheduled effort, a presentation on police procedures and crime fiction, was much better attended.  The organizers had apparently spread the rumor that this event would feature an open bar.  They failed to specify that it was a coffee bar.  Still, the attendees remained, perhaps thinking that the "real" bar would be thrown open as soon as I finished talking.  In order to hasten that moment, several of the more enterprising began asking questions almost as soon as I was introduced, thinking no doubt that the quicker they talked me through this, the better.  These had probably attended my earlier lecture.

Their questioning revolved largely around a central theme--what the police can...and can not do...legally.  In other words, police power.  This is an issue which police officers themselves wrestle with on a daily basis.  If we rely on crime fiction (especially the Hollywood style of fiction) to inform us, then we would conclude that there are no meaningful limits or controls on law enforcement officers.  If the featured officer is a good guy, then he is justified in doing almost anything to achieve justice--and he does.  But benignly, of course.  When the opposite is true, the bad officer is characterized as an out-of-control criminal in uniform, and suddenly rules matter once more.

But what are the rules?  It's a big subject as my fellow SleuthSayers who have been involved in law enforcement, or criminal law, know.  Still, one good place to begin is with the issue of search and seizure.  And for that, we must turn to the Fourth Amendment of the U.S. Constitution. 

In essence, this is the guarantor that our homes, persons, and property will be protected from unreasonable searches and/or  seizures.  For a search or seizure to be considered reasonable normally requires a search warrant.  Getting a search warrant, as R.T. Lawton knows I'm sure, is seldom something that can be accomplished quickly or easily.  It usually involves a good deal of investigation, followed by a written affidavit describing in detail the officer's probable cause for the search and its necessity.  Additionally it must carefully describe the premises to be searched, and as exactly as possible, the object of the search.  It then goes through several layers of review by prosecutors before it, and the investigating officer, must appear before a judge.  That same officer is often responsible for preparing the actual warrant, as well, which is the document that the affidavit supports.  Then the judge will give it the thumbs up, or no, and it isn't always a slam dunk.  Sometimes he will demand info that he feels is essential to the warrant but is not currently included.  Then it's back to the drawing board.  All of this can take hours, days, weeks, and even months to accomplish the goal of entering someone's home to legally search it.  This is most often the work of detectives and investigators. 

The uniform, or plainclothes street officer, works in a very different environment and often finds himself operating within the happening-right-now-and-what-are-you-gonna-do-about-it world.  Decision-making gets telescoped into minutes or seconds, and there are no judges or lawyers working the night shift or responding to calls with the officer.

Because of this the courts have recognized that there must be exceptions to the warrant requirement.  On the face of it the idea may sound shocking.  But if some exceptions weren't carved out, an officer in hot pursuit of a murder suspect would have to wait outside the front door if he failed to catch up to him before he got inside.  That would be unsatisfactory in the extreme, and also boring. 

Warrant?  I don't need no stinkin' warrant.

So here they are--the exceptions to the search warrant requirement:

1. Search Incident to Lawful Arrest: Kind of a no-brainer, I think.  When a person gets arrested the officer is allowed to search both his person and the area within his reach, or "wingspan".  Of course you need probable cause to make the arrest, which can be defined as more than reasonable suspicion but less than the evidence required for a conviction.  That shines a light on it, doesn't it?  P.S.  Since this was written the Supreme Court has ruled that cell phones recovered in such situations are excluded from this exception and require a search warrant.  I need time to digest this one before commenting.

2. Plain View Exception: No warrant is required if the officer can see evidence in plain view (narcotics, for example) and  he is legitimately in a position to do so.  For example: He responds to a home to administer CPR to an unconscious victim, and sees on the nearby coffee table a mirror with a mound of white powder and a razor blade on it.  Plain view would probably not apply to that same officer using a pair of binoculars from a block away to see the same thing.  

3. Consent: Suspects can, and sometimes do, give their consent to enter and search their property.  The person giving the consent must be reasonably believed by the officer to have the authority to do so.  Here, in New Jersey, Consent to Search forms are used to document the transaction.  It helps to repudiate later claims that the consent was not freely given.  As for blood stains found on such documents, these are easily explained away as the result of paper cuts.  The suspects are also advised that they do not have to give consent and may stop the search at any time.  And yes, they do sometime give consent even though they are in possession of something naughty.  My theory is that they think cops are slow-witted and can never, ever figure out where they have so cleverly hidden the contraband.  Sadly for them, it is most often not the cop who is slow-witted.

4. Stop and Frisk: A police officer may stop and frisk a person if he has reasonable suspicion that he may be armed and dangerous.  This is more than mere suspicion, but less than the level required for probable cause.  That's illuminating, isn't it?  It is worth noting that a frisk is a pat-down of outer clothing for the officer's safety.  He could progress to an actual and more thorough search of the suspect if he encounters what he believes to be a weapon during the pat-down.  Kind of a "plain feel" exception.  Though the person has not been arrested, he has been "seized," hence the need for the exception.

5. Automobile Exception: This actually applies to any vehicle, including boats.  If the officer has probable cause to believe that the vehicle contains evidence of a crime, contraband, etc...he may conduct a search for the item he believes may be present, but only in the areas where such an item could be hidden.  E.g. He can't look in the glove compartment for a robbery suspect; though he may search there if he is looking for a gun used in a crime.  This exception is allowed because of the highly mobile nature of vehicles.  If the car were parked in a driveway without an operator, a warrant would be needed. 

6. Emergencies and Hot Pursuit: If evidence is in danger of being removed or destroyed the officer can utilize this exception.  This is also the one that covers the fleeing suspect I mentioned earlier; allowing the officer to continue his pursuit onto and into private property without a warrant.  Even if the property is that of a third party.  Here's one for you: If during the apprehension of this fleeing suspect inside a very surprised John Q. Bystander's house, you see that John Q. is building a bomb, you can go ahead and arrest him, too, under the Plain View exception.  Then both men can be searched Incidental to Lawful Arrest.  What fun you're having!

The exercise of any of these exceptions often lead to a probable cause hearing after the fact.  This is the defense attorney's opportunity to have thrown out any evidence that the officer discovered as a result of the search.  The officer's interpretation of the search warrant exception utilized, as well as his understanding of the events leading up to it will be called into question.  This is not only a matter of checks and balances, but quite likely the suspect's best chance of beating the charge.  If the judge rules that the officer misused the exception, or otherwise overstepped the constitutional boundaries of the Fourth Amendment, the evidence will be thrown out and his case most likely dismissed.  The fruit of the poisonous tree doctrine states that evidence illegally obtained is tainted and cannot be used in court against the defendant.

Well, that's enough for today.  I'll see you all back in your seats in three weeks.  Until then--Bar's open!

Next Time--WHY WON'T ANYONE TALK TO ME? or A FEW WORDS ON MIRANDA AND SUCH LIKE.