Thanks to television and the movies the myths about the Miranda rights are infinite. If I had a dollar for every time a client told me that their case must be dismissed because they were not given their Miranda rights I’d be a very rich man.

Of course that is not true. The Miranda rights mean what they say “Everything you say may be used against you . . . But if they don’t plan to use any statement you make they don’t have to give you the Miranda rights.

Furthermore the Miranda rights only apply to statements made while you are in custody as a result of interrogation. Thus if your not in custody, i.e. if you are free to leave, or if you make the statement freely without being asked the statement can be used against you even if you are not given the Miranda rights. Statements made despite the lack of being given the Miranda rights can also be used in cross examination.

And I can assure you that any police officer with half of a brain can find some way to make it look like a statement is given either while the person is not in custody of not as a result of interrogation.

An example occurred in the prosecution of Michael Slaight for receiving pornography on his computer. But the Seventh Circuit, in a decision written by Judge Richard Posner, saw through it and reversed the conviction.

Through viewing internet cites used by viewers of child pornography state and federal agents found out that Slaight received child pornography in interstate commerce, a violation of Federal law. they had enough information to obtain a search warrant for his house and his computer. In fact they had enough information to arrest him but they didn’t because they wanted him to give a statement while he was out of custody.

They went to his house. When he didn’t answer the door, nine officers knocked it down. They ordered him to get dressed. They asked him to voluntarily come to the police station. Knowing that he didn’t have a car they offered to let him drive himself to the station. Once at the station, two officers interrogated him in a small room. Repeatedly, they told him he could leave at any time. but he would have had to trip over an officer to get out of the interrogation room and since they already had enough information to arrest him he did not believe they would let him go. At the end of the interrogation they read him his Miranda rights and arrested him.

In the end Judge Posner’s decision found that an average person in Slaight’s position would not feel free to leave due to the show of force at his home, the protracted questioning of him in the claustrophobic setting of the police station’s Lilliputian interview room, and the more than likelihood that he would be formally placed under arrest if he tried to leave because the government already had so much evidence against him.

Eddie Garcia and Nancy Martin Perez were pulled over due to having an obstruction hanging from the windshield of their truck. Their identification, registration and insurance was checked. They were interviewed separately and gave contrasting statements on where they were going and why. A computer check was initiated. During the check the officer asked to look in their trailer. He took a 30 second look with Garcia and they shut the trailer. After the computer check is completed Garcia is given a verbal warning. Garcia and Perez are told they can leave. Garcia shakes hands with the officer.

As they begin to leave the officer asks permission to search the trailer. Perez gives permission. The officer search the trailer. He finds a fake wall hiding marijuana.

Garcia and Perez are arrested. Garcia pleads guilty reserving the right to challenge the search.

There is no question that the initial seizure is legal. The officer stopped Garcia and Perez due to a violation of the traffic laws. The officer carried out a legal check of licenses, registration, and warrants. This was done in a prudent manner without extending the time of the detention. The detention ended and the couple were told they could leave. Then the officer asked to search the trailer. Perez gave permission. Since they were free to leave at this point they were not coerced into giving permission. Thus the search was legal.

Assuming the facts in the decision are accurate the only question is why was Perez so stupid as to give permission for a search, knowing that the truck was full of marijuana. The Fourth Amendment prescribes searches in all case except where specific exceptions occur. However anyone can waive that right. In Arizona v. Miranda the Supreme Court ruled that a waiver of the right to remain silent must be knowing and intelligent. Furthermore it required that the waiver be shown on the record through the use of what is now well known as the Miranda warnings. Isn’t it time that similar waivers be mandated prior to a waiver of the Fourth Amendment right against unreasonable searches?

The Seventh Circuit Court of Appeals held last week that a waiver of Miranda rights by a man with an IQ level in the sixties and who had a brain aneurysm decreasing his IQ by approximately 10 points was valid.

James Collins was convicted of murdering his girl friend in the early morning hours of May 1, 2001 after they spent several hours smoking crack cocaine. He had a long history of mental illness and the trial court heard the testimony of five experts before allowing the Mirandized testimony into evidence. After his arrest on the morning of the death, Collins gave several statements, some of which admitted to killing Flora Lanier. The testimony of witnesses was mixed and it is doubtful that they could have gotten a conviction without his statements.

A waiver of the right to remain silent must be knowingly and intelligently made. Furthermore the waiver must be “the product of a free and deliberate choice rather than intimidation, coercion, or deception.” In other words Collins must have understood what he was doing when he waived his right to remain silent and he must have had some degree of understanding of the possible consequences of the waiver.

After the conviction Collins appealed and the appeal was denied. Then he filed a writ of habeas corpus in the state appellate court. It was denied and the Illinois Supreme Court refused to hear the matter. Then he filed a writ in the Federal District Court. It was denied but he was given permission to appeal to the Seventh Circuit Court of Appeals.

The Seventh Circuit while agreeing that there was no question that Collins was mentally deficient found that he did not meet the standard for habeas corpus. Under the Antiterrorism and Effective Death Penalty Act (AEDPA) “a federal court may not issue a writ of habeas corpus unless the state court’s adjudication of the petitioner’s claim either ‘resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,’ or ‘resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”

The Seventh Circuit found no Supreme Court precedent requiring the police “to take ‘special care’ that a suspect with a mental disability understands his rights.” Therefore the state court did not violate “clearly established Federal law.” Furthermore while the experts were divided the Seventh Circuit held that it cannot be said that the state courts was based on an unreasonable determination of the facts. When talking to the police Collins was rational. He understood the question and gave logical answers. As a result Collins met the relatively low bar and he had sufficient knowledge of what he was doing when he waived his right to remain silent.

The Supreme Court ruled that in order to assert Miranda rights an arrestee must verbally tell the officer that he/she does not want to talk to the officer or that he she wants to maintain silence.

Van Chester Thompkins was charged with murder in a Michigan Court. After his arrest in Ohio two Michigan police officers traveled to Ohio to interrogate him. They spent three hours questioning him but during most of that time he was silent. Towards the end of the interrogation the officers asked him if he prayed to god to forgive him for the murder. He said yes and the answer was used against him at trial after his motion to suppress the answer was denied.

On habeas the Michigan Court of Appeals held that Thompkins did not invoke his Miranda rights and that he waived the right by answering the officer’s question, a position rejected by the Sixth Circuit Court of Appeals but accepted by the Supreme Court.

Justice Sotomeyer wrote the dissent. She pointed out that in the Supreme Court held that “If [an] individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent” or if he “states that he wants an attorney,” the interrogation “must cease.” It would seem that a two and three quarter hour silence would be an indication that Thompkins wanted to remain silent. In Miranda the Court wrote:

“Whatever the testimony of the authorities as to waiver of rights by an accused, the fact of lengthy interrogation or incommunicado incarceration before a statement is made is strong evidence that the accused did not validly waive his rights. In these circumstances the fact that the individual eventually made a statement is consistent with the conclusion that the compelling influence of the interrogation finally forced him to do so. It is inconsistent with any notion of a voluntary relinquishment of the privilege.”

As Sotomeyer points out this seems to be pretty much on point but it was ignored by the majority. As the Court stated in Miranda: “a valid waiver will not be presumed … simply from the fact that a confession was in fact eventually obtained.”

Perhaps the most ironic part of the decision is that arrestees must now verbally assert their desire to remain silent. The common Miranda right read to arrestees says that the arrestee has a right to ask for an attorney and the right to remain silent. It says nothing about stating that the arrestee must state that he/she wants to remain silent.

There has been considerable talk lately about Congress attempting to widen the public safety exception to the Miranda Rule. Attorney General Eric Holder supported such a move in a interview on Meet the Press last week.

The public safety exception was first enunciated by the Supreme Court in New York v. Quarles. In Quarles a woman approached a police officer and told him that she had been raped at gunpoint. Furthermore, she told him that the rapist was in a particular grocery store. The officer went to the store and together with other officers found the suspect, searched him and handcuffed him. They found an empty holster on him. They asked him where the gun was. He said “over there.” then the officers Mirandized him. The lower courts excluded the statement ‘over there” from the trial saying that it was obtained in violation of Miranda.. But the Supreme Court found that the overwhelming need to protect the public safety and to find the gun before someone else got hurt was an except to the Miranda rule.

Now the administration is considering asking Congress to change the public safety exception to allow questioning of suspected terrorist prior to giving the Miranda warnings. Let’s be clear. No law requires the Miranda warnings to be given. The law only prohibits non-Mirandized statements given while a suspect is in custody in response to police interrogation from being used in court. Police have every right to interrogate a suspected terrorist to obtain information about other terrorists or terrorist acts without giving Miranda warnings as long as the statements and and evidence obtained as a result of getting the statement is not used to convict the alleged terrorist.

Furthermore under the public safety exception, there is little doubt that law enforcement officers, if they find a person with a bomb in Time Square can question the man about the existence of other bombs in Time Square or elsewhere without worrying whether or not the statement will be admissible. The statement would come in under the public safety exception.

Also any attempt by Congress to expand the public safety exception would be subject to Supreme Court review. As Chief Justice Rehnquist wrote for the court in Dickerson v. United States: “We hold that Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of Congress, and we decline to overrule Miranda ourselves.”

It is not clear how Holder wants to amend the Miranda rule. But constitutional rights are guaranteed to all citizens regardless of what crime they may be charged with. It is unlikely, therefore, that the Supreme Court would agree to an exception the Miranda rule for those charged with terrorist offenses.

Jason Montes and Margarito Armijo were charged with participating in eight bank robberies in the Dallas area. They were convicted. Armijo was senenced to 4,692 months in prison and Montes to 4,705 months. (Yes, that’s nearly 400 years each!)

While there were several issues on appeal the only one worth discussing is Armijo’s claim that he was denied his Miranda rights.

In reviewing a district court’s denial of a defendant’s motion to suppress a statement given to the police, this court reviews factual findings, including credibility determinations, for clear error, and reviews legal conclusions de novo. Since the trial court held an evidentiary hearing on the matter where it could observe the demeanor of various witnesses it was in a better position to determine which witnesses to trust and which ones not to trust. That was particularly important in this case where their was contrasting testimony.

The police officers testified that Armijo did not clearly ask for an attorney during the interrogation and Armijo testified that he asked for an attorney. Under Supreme Court precedent an ambiguous or equivocal reference to an attorney does not result in the right to have a statement excluded at trial. The request must be clear and specific. The officers testified that Armijo signed a waiver acknowledging that at any time during the interrogation he could ask for an attorney. After answering questions the officers asked him to put it in writing. At that point he said something to the effect that “Maybe I should get an attorney” or “Do I need an attorney?” The trial court found the officers to be more credible than Armijo and the appellate court looking at the evidence in the light most favorable to the prevailing party in the trial court found the statement to be ambiguous and therefore the statement to be admissible.

In a case like this where it is a factual question the case is going to be won or lost in the trial court. Unless the trial court made a mistake as to the law an appellate court is unlikely to reverse a conviction. While appeals are filed as a matter of course after losing at trial expecting a better result on appeal is probably fruitless.

The Eighth Circuit Court of Appeals upheld the search of three residences in a Kansas City methamphetamine case in United States v. Cisneros-Gutierrez.

Immigration and Customs Enforcement (ICE) Special Agent Mark King set up surveillance at 323 South Brighton Avenue. Along with other agents he decided to conduct a “knock and talk.” A “knock and talk” is used by narcotics agents when they want to search a residence but they do not have probable cause to get a search warrant. They knock on the front door and when someone answers it they try to talk their way into the house and get consent from the residents to search the house. Of course the residents do not have to answer the door. Nor do they have to talk to the officers or give them permission to enter the house.

But King was either good or lucky. Justino Ruiz-Ramos answered the door. He said he did not live at the residence but Salvador Jesus Velasco-Saldana came to the door. Velasco-Saldana said he resided there and gave the officers permission to enter. He consented to the officers searching the residence. They found methamphetamine and related items. They interviewed Velasco-Saldana and he told them that Gerardo sold him three pounds of methamphetamine and that Gerardo’s brother delivered it. He drew the officers a map explaining how to get to Gerardo’s house.

Several officers including King and Luis Ortiz of the Kansas City Police Department Gang Unit went to 430 Donnelly Avenue and conducted another “knock and talk.” Miguel Angel Garcia-Bobadilla answered the door and again the officers were let in. They asked Garcia-Bobadilla if he was alone. When he answered yes they asked asked if they could perform a protective sweep in order to confirm that no one else was in the house. He gave permission. A protective sweep is done to make sure the officers are safe while in the house. But they also know that any illegal substances they see in “plain view” can be seized. They found a significant amount of methamphetamine in the house.

During the sweep they ran into Alfredo and Dehli Hernando-Pena. Alfredo and Garcia-Bobadilla said they lived in the house. Both gave verbal and written consent to the search. Dehli agreed to cooperate. She told them that Alfredo’s brothers lived at 3907 East 12th Terrace. After the officers search the Donnelly Avenue house they went to the 12th Terrace house. They knocked on the door and Gerardo answered. While talking to Gerardo they noticed Alphonso entering the kitchen with large baggies of powder and they heard what they thought to be Alphonso flushing something down the sink. The officers thinking that evidence was being destroyed entered the residence without a warrant.

After they were indicted the defendants brought motions to suppress the evidence. The court upheld all of the searches. As to the South Brighton Avenue search, it found that Velasco-Saldana gave consent to the entry and search. As a result it was not in violation of the Fourth Amendment.While there was some question about the facts of the Donnelly Avenue search. The police claim that the residents gave their consent and the residents say the police forced their way in, the court found the officers to be credible and the residents not to be. As a result it found that the entry and search was also the result of consent. As to the 12th Terrace search there is an exception to the Fourth Amendment when exigent circumstances exist. The courts have found that the eminent destruction of evidence is an exigent circumstance allowing the authorities to enter a residence without a warrant.

The question that constantly comes up in my mind is why would anyone allow the police to enter their house and search it knowing that there is a significant amount of methamphetamine in the house. If any of the defendants had just said “no” I will not talk with you or “no” you cannot come in, or “no” you cannot search none of this would have happened and they would not have be serving decades in prison. The Fifth and Fourteenth Amendments give people the absolute right not to talk to the police. The Fourth and Fourteenth Amendments Amendments give people the right to refuse entry to any officer who does not have a search warrant into their residence and to deny the officers the right to search the residence.

Even assuming that the police do not always tell the truth it is obvious that the defendants talked themselves into being arrested. Did they think that when talking with experienced officer they could talk themselves out of being arrested–unlikely. And I do not know about this case but by talking they endanger themselves because others get arrested and they may be killed. It makes no sense.

Recently we looked at Florida v. Powell in which the the Supreme Court limited the need to inform a detainee that he/she may have an attorney present during interrogation. On Friday the First Circuit in United States v. Mejia found that Ricardo Mejia implicitly waived his Miranda rights without expressly doing so.

Ricardo Miranda was arrested with Eudy Tejada-Pichardo (“Tejada”) after they sold two kilograms of cocaine to two government informants, Ambioris Falette and Marie Perez. Prior to the arrest Tejada was recorded, arranging the deal which was to go down at a McDonald’s, in two telephone conversations with Falette and Perez. Mejia was not recorded but telephone records show that he had over 470 conversations with Tejada in the six weeks prior to the transaction, including one on the night of the sale.

Mejia and Tejada arrived at the McDonald’s together. Tejada got into Falette’s vehicle with a suitcase. Mejia and Perez got into Perez’s car. The plan was to pick up the money but the vehicles were stopped by the DEA. Tejada and Mejia were arrested. Police found the cocaine in the suitcase and a gun on the floor of Perez’s car.

At the scene Mejia was orally advised in Spanish of his Miranda rights by Detective Andres Perez. At the police station he was again orally advised of his Miranda rights and he was given a written copy in Spanish. Detective Perez read him the rights. Mejia initialed each of the rights and signed the bottom of the paper. But he never said that he waived the rights. After signing the form he began answering questions. Mejia said that Tejada gave him the gun at McDonald’s and that his job was to protect Tejada. When the officers attempted to commit his statement to writing for him to sign Mejia became evasive and the interview was terminated.

The First Circuit found that Mejia implicitly waived his Miranda rights. He initialed a box saying that he understood his rights and he answered questions after being advised of his rights, having his rights read to him, and being given the rights in writing. The Court found that “[t]he totality of the circumstances indicate that this was a voluntary conversation that Mejia undertook after having been fully advised of his rights.”

Mejia made three objections. First he claimed that the “suspected crime” section of the Miranda form was not completed but the Court found that immaterial since he was arrested in the middle of the transaction. Second he claimed that the Miranda warnings were not properly translated but Detective Perez was a native Spanish speakers and he was given the rights in writing. Finally his statement was not recorded or contemporaneously put into notes. But this issue was not raised in the trial court so the appellate court found it waived.

Friday, we looked at Florida v. Powell in which the Supreme Court looked at a version of the Miranda warnings that did not clearly state that an arrestee had the right to have an attorney in the room with him/her while being interrogated while in custody.

Today we look at whether the Supreme Court should have considered Powell in the first place. Powell is an appeal from the Florida Supreme Court which ruled the version of the Miranda warnings used by the Tampa police is unconstitutional. The version used by Tampa police states:

You have the right to remain silent. If you give up the right to remain silent, anything you say can be used against you in court. You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview

The Florida Supreme Court held: “[b]oth Miranda and article I, section 9 of the Florida Constitution require that a suspect be clearly informed of the right to have a lawyer present during questioning,” and that the warnings given to Kevin Dewayne Powell did not satisfy either the State or the Federal Constitution.

The question is whether the Florida Supreme Court found “independent state grounds” to reverse Powell’s conviction. The Bill of Rights guarantees certain rights. For the most part these rights, under the Fourteenth Amendment, are binding upon the states. But nothing in the Constitution or the Bill of Rights limits the states from granting its citizens greater rights than are guaranteed in the Constitution. For example while the Supreme Court may have found the Tampa version of the Miranda warnings sufficient to protect Fifth Amendment rights against self incrimination, the Florida Supreme Court has every right to hold the Tampa version of the Miranda Rights insufficient to protect rights granted in the Florida Constitution.

On remand the Florida Supreme Court has every right to say that confessions made after being read the Tampa version of the Miranda inadmissible as a violation of the Florida Constitution. Therefore the Supreme Court as a rule refuses to consider cases where the state court has ruled on the issue and found that it violates the state Constitution. The Florida Supreme Court like any other state court may find that a particular act violates both the state constitution and the Federal Constitution as the Florida Supreme Court did in this case, according to Justice Stevens in his dissent. But since the Supreme Court decision will not have any effect upon Powell if the Florida Supreme Court finds that Powell is protected under the Florida state constitution, the Supreme Court does not take cases where

[t]he state court ‘make[s] clear by a plain statement in its judgment or opinion that the federal cases are being used only for the purpose of guidance, and do not themselves compel the result that the court has reached.’ . . . [T]he real question is whether ‘the adequacy and independence of any possible state law ground is … clear from the face of the opinion.”

The U. S. Supreme Court’s majority opinion written by Justice Ginsburg, and joined by every justice except Stevens, states that

the Florida Supreme Court treated state and federal law as interchangeable and interwoven; the court at no point expressly asserted that state-law sources gave Powell rights distinct from, or broader than, those delineated in Miranda

But as Justice Stevens points out that the Florida Supreme Court said that the Tampa version of the Miranda rights under neither the United States Constitution or the Florida Constitution provided the arrestee with sufficient notice that he/she could have an attorney present during any interrogation it implicitly stated that there are independent state grounds for excluding the confession under the State Constitution. Therefore the Supreme Court’s decision is no more than an advisory opinion and the Court should not have accepted the case.

This is the type of activism that members of the majority would reject under other circumstances. The Supreme Court, they would argue, should only accept cases where their opinion would mean something and where they were not interfering with the State Courts rulings on state law.

As part of a robbery investigation Tampa police searched Kevin Dewayne Powell’s girlfriend’s residence. The found Powell and a gun. They read a warning to Powell prior to taking a statement. The warning said:

You have the right to remain silent. If you give up the right to remain silent, anything you say can be used against you in court. You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview.

This deviates from the normal Miranda warning in its lack of clarity about the defendant’s ability to have a lawyer present during the interrogation. While the warning read to defendants varies from jurisdiction to jurisdiction, most jurisdictions including all Federal peace officers use the wording found in Miranda v. Arizona:

[H]e has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.

The majority opinion holds that the Tampa warning does not deny the arrestee the right to know that he/she may have counsel present at the time of the interrogation. It states that the combination of the section tells the arrestee that he/she may consult an attorney prior to questioning and the section that says that the rights are available to the arrestee at any time should be sufficient to tell the arrestee that he/she may have counsel available during the interrogation.

But some future court may cite Powell for the proposition that an arrestee does not have the right to have an attorney in the room with him/her. They may claim that an arrestee, like a grand jury witness can only consult an attorney upon request who is waiting outside the room. This denies the arrestee of the right to receive suggestions from his/her attorney on what questions to answer and what questions not to answer.

But as Justice Stevens says in dissent

[T]he catchall clause does not meaningfully clarify Powell’s rights. It communicated that Powell could exercise the previously listed rights at any time. Yet the only previously listed right was the “right to talk to a lawyer before answering any of [the officers’] questions.

In our next post we shall consider whether or not the Supreme Court should have considered Powell in the first place.