Randall Lee Fields, a prisoner in a Michigan jail was taken from his cell to a separate part of the building sometime between 7:00 pm and 9:00 pm. He was then interrogated by two armed officers for five to seven hours. He was not given his Miranda rights although he was told he could go back to his cell if he wanted to. During the interrogation he admitted to having sexual acts with a 12 year old prior to his current interrogation. His admission was admitted at trial. The question the Supreme Court faced in Howes v. Fields was whether Fields’ Miranda rights were violated. Under the seminal case of Miranda v. Arizona a defendant’s must be warned of the admissibility of a statement and the availability of counsel prior to making a statement if the defendant is in custody and if the statement is the result of interrogation.

Since Fields’ conviction was upheld in the state courts and comes to the Supreme Court as an appeal by the state of a grant of habeas corpus by the Federal Court the primary question is whether the State Court decision clearly violated Supreme Court decisions. The Supreme Court, this week, ruled that it did not. The Supreme Court reviewed its prior decisions regarding the use of Miranda in interrogations of defendants who are in custody for unrelated matters and found no decision setting a categorical rule regarding the applicability of Miranda to in custody interrogations regarding unrelated matters. In previous case it either refused to consider the issues or assumed that Miranda applied without decided whether it applied. Therefore, the Court reversed lower court decisions granting the writ of habeas corpus.

But the court went further, in what must be considered dicta, and stated that Miranda was not applicable to the situation in Fields.

For Miranda purposes the Court ruled the phrase “in custody” has a special meaning. “In determining whether a person is in custody in this sense, the initial step is to ascertain whether, in light of ‘the objective circumstances of the interrogation, . . . a reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave.’” The Court gave three reasons for finding that Fields was not in custody for purposes of Miranda. First, it stated that questioning a person who is in custody does not effect the same type of shock that questioning a person who has recently been arrested. Second, a prisoner is unlikely to give an incriminating statement as one who has recently been arrested since his/her release date will not be effected by the statement. Finally, the interrogating officer has less authority to affect the release date on an in-custody inmate as compared to a recently arrested defendant.

While it is true that Fields was told that he could go back to his cell if he did not want to answer the officers questions, ¹the feeling of coercion when being interrogated in a jail setting is strong. Jailers have near complete control over inmates while they are in custody. Inmates are constantly called before custodial officers for disciplinary hearings. There is no Miranda right in these hearings and they can be disciplined if they fail to answer the officer’s questions. They can be thrown for extensive periods of time into solitary confinement. Commissary and phone rights can be taken away. They can be denied the right to have visitors. And perhaps most importantly they can lose “good time” and have their release date delayed. Thus, the coerced nature of in-custody statements is great and to deny those interrogated while in custody the right to remain silent or the right to have an attorney present violates the basic requirements of Miranda.

Robert Jeffery Farmer was convicted of two murders in separate trials in Nevada and sentenced to death. Four circumstances in aggravation were alleged. But the three judge panel only made findings as to two statutory aggravating circumstances, both of which involved claims that the murder occurred during the commission of other felonies. ¹ It found both of these to be true. After he was sentenced the death penalty was vacated when the Nevada Supreme Court found the circumstance in aggravation unconstitutional. The prosecutors then tried to reinstate the two circumstances in aggravation for which the panel did not make findings. Farmer appealed alleging a violation of the Fifth Amendment’s ban on double jeopardy.

The Supreme Court has ruled that an aggravating circumstance in a capital case, like a criminal charge is subject to the double jeopardy clause.

If the three judge panel’s failure to make a holding on the two indicated that it found the allegations not true double jeopardy would prevent a retrial on the allegations. But if no such holding can be implied double jeopardy is not applicable.

In a case with similar facts, Poland v. Arizona, The Supreme Court held that where neither the trial court or the appellate court finds that the prosecution failed to meet its burden and where the trial court sentenced the defendant to death, the double jeopardy clause is not violated by retrying an alleged circumstance in aggravation where there was no finding on the circumstance in the trial court.

Robert Simmons was convicted of being a felon in possession of a firearm and ammunition. He appealed on Fourth and Fifth Amendment grounds.,

His housemate called the police and complained that a couple of days beforehand Simmons threatened him with a gun. The police arrived at 1:00 a.m. His housemate was waiting for them. Simmons was in his bed.

Simmons got up and the police asked him questions in the hallway about whether he had a gun, where the gun was located and disputes he had with his housemate. Simmons was cooperative and told the police that he had a gun in his room.

The police then searched the room.

The questions raised on appeal was the admissibility of Simmons answers to the police questions since they were asked without the giving of Miranda warnings and the admissibility of the items found in the room including the gun.

The Second Circuit found the statements admissible under the Fifth Amendment exception to the MIranda rule for the answers to questions asked for public safety reasons. The public safety exception does not require that Miranda warnings “precede questions reasonably prompted by a concern for the public safety or for the safety of the arresting officers for a suspect’s answers to be admitted as evidence of his guilt.” The court found that the officers had sufficient concern about possible injury to themselves, Simmons ant the housemate to avoid giving the Miranda warnings, even though the scope of the questioning exceeding that necessary to find out whether there was a gun and where it was located. Considering the pressure of the moment the officers could be excused for the additional questioning.

But the Circuit Court reversed the District Court’s upholding the search of the room and remanded the case to the District Court. The government claimed that the search of the room was justified by the exigent circumstances exception to the warrant rule. The exception allows a warrantless search “when the needs of law enforcement [are] so compelling that a warrantless search is objectively reasonable.” But the court did not find the existence of exigent circumstances. Simmons was in the hallway. The apartment was full of police. One of the officers was blocking the door to the bedroom so he could not get the gun. There was no reasons that the search could not be delayed until a search warrant was obtained. A person’s house is particularly protected from warrantless seaches and therefore the court reversed the conviction pending further action of the trial court.

Recently we seem to be having a run of double jeopardy cases. I don’t believe we should credit the Roger Clemens case for the run but it did seem to start with him. Today, we look at a rather unique Ninth Circuit case.

Gabriel Alvarez-Moreno was charged in Federal Court with two counts of transporting undocumented immigrants for profit. Shortly before his trial his attorney and the Assistant U. S. Attorney agreed that a jury trial would be waived and a court trial would be held. However, Alvarez-Moreno never signed the necessary documents and the judge did not voir dire him to insure that the waiver was voluntary. He was convicted on both counts.

Shortly after the trial and before sentencing his attorney moved to vacate the sentence based on the failure to comply with the waiver requirements. The government suggested that the motion be considered an untimely motion for a new trial or in the alternative that the judge sua sponte declare a mistrial.Alvarez-Moreno objected to the new trial motion. The court ordered a new trial and Alvarez-Moreno appealed.

The Ninth Circuit Court of Appeals ruled that there are three occasions when a new trial can be ordered without violating the Double Jeopardy Clause. First, when the defendant appeals a conviction and the court orders a new trial. By appealing the defendant waives his/her right against double jeopardy. Second, when a mistrial is declared pursuant to federal Rules of Criminal Procedure Section 26.3. It only operates to permit a second trial if manifest necessity exists and there is no judicial or prosecutorial overreaching aimed at triggering the mistrial. Furthermore the court held that the mistrial must be declared before the verdict is reached. Finally a new trial is permissible if it is as a result for a motion for a new trial is made by the defendant. Again a motion for a new trial acts as a waiver of double jeopardy claims. None of these applied to Alvarez-Moreno and therefore a second trial was prohibited.

José A. García-Ortiz was convicted on three counts: Hobbs Act robbery; aiding and abetting the unlawful carrying and use of a firearm during and in relation to the robbery, and aiding and abetting the death of an accomplice in the commission of an armed robbery. He raised a number of issues on appeal, the most important of which was that convicting him of both using a gun in the commission of an armed robbery and aiding and abetting the death of an accomplice in an armed robbery violated the Fifth Amendment prohibition on double jeopardy.

The unlawful use of a firearm during a robbery is a lesser included offense of using a gun during the commission of an armed robbery resulting in the death of an accomplice. A lesser included offense is one that has all of the elements of the greater offense. All of the elements of using a gun during an armed robbery are also elements of aiding and abetting the death of an accomplice during an armed robbery. Of course the greater offense, aiding and abetting the death of an accomplice during an armed robbery has the additional element of the death of an accomplice. In other words anyone who commits the offense of aiding and abetting the death of an accomplice during an armed robbery necessarily also commits the offense of aiding and abetting the use of a firearm during an armed robbery.

Thus Garcia-Ortiz argued that he was convicted twice for the same offense. The First Circuit Court of Appeals did not rule directly on the double jeopardy issue. But it found that Congress did not intend to punish individuals twice for the same crime. Under Rutledge v. United States there is a presumption that Congress did not intend to punish for convictions on both offenses. Since the Court could find nothing to the contrary in the charged offenses, it remanded the case to the trial court to dismiss the lesser offense.

The Ninth Circuit Court of Appeals upheld a grand jury subpoena against a Fifth Amendment claim for M.H.’s personal records regarding an account in a Swiss bank. The Fifth Amendment protects individuals from being forced to make self incriminating statements.

The grand jury subpoenaed from M.H.

[a]ny and all records required to be maintained pur-
suant to 31 C.F.R. § 103.32 [subsequently relocated
to 31 C.F.R. § 1010.420] relating to foreign financial
accounts that you had/have a financial interest in, or
signature authority over, including records reflecting
the name in which each such account is maintained,
the number or other designation of such account, the
name and address of the foreign bank or other per-
son with whom such account is maintained, the type
of such account, and the maximum value of each
such account during each specified year.

In plain English the grand jury subpoenaed M.H.’s bank foreign bank records which M.H. was required to maintain by the Bank Secrecy Act of 1970 (BSA). M.H. argued that the provision of the records or the admission that such records do not exist would incriminate him and he claimed that he was protected from providing such by the Fifth Amendment. The government argued successfully that the documents were excluded from Fifth Amendment protection under the Required Documents Doctrine(RDD). Under the RDD documents are exempt from the Fifth Amendment if “(1) the purpose of the government’s inquiry is regulatory, not criminal; (2) the information requested is contained in documents of a kind the regulated party customarily keeps; and (3) the records have public aspects.”

The Court found that the documents subpoenaed under the BSA met the requirements of the RDD for exclusion from the Fifth Amendment requirements. First, as long as the BSA has a regulatory purpose, even though it can also have a criminal purpose, it meets the first criteria of the RDD. Second, most people keep some records regarding their bank accounts. It matters not that the bank also keeps records. Third, while the mere fact that the law requires such records to be kept does not mean that it has a public aspect, that together with the regulatory nature of the act indicates a public purpose.

But who do they think they are fooling. The government admits that the purpose of the grand jury investigation is to determine if M.H. is using the foreign account to avoid paying income tax, which is a crime. Furthermore I suspect that most investigations under the BSA are primarily criminal in nature. The material they are requesting may not be direct evidence of a crime but it certainly helps the government make a criminal case.

Former Lucerne County, Pennsylvania Juvenile Judge Mark Ciavarella Jr. was sentenced to 28 years in Federal prison for excepting bribes from a company that builds private jails in exchange for sending children to the company’s facilities in the “Kids for Cash” scandal. He received a million dollar from the companies building the private jails and he attempted to extort money from the owner of the jails. A colleague on the bench, Michael Conahan, who is yet to be sentenced on related charges, received another million dollars.

In his rush to send juveniles to the private prisons he often denied juveniles their basic constitutional rights. He did not offer them appointed counsel and he demanded statements from them in violation of their right to remain silent. A fifteen year old girl was sentenced to three months for mocking the assistant principal of her school on her MySpace page and a 13 year old boy was locked up for trespassing in a vacant building. As a result the Pennsylvania Supreme Court reversed over 4000 convictions

A thirteen year old North Carolina boy was removed from his classroom by a uniformed officer. He was taken to a room where he was interrogated by a police officer, a school security guard, and an assistant principal. He was not Mirandized. During the interrogation he made statements that incriminated himself in two burglaries.

An unmirandized statement cannot be used against a defendant if the statement was made while the defendant was being interrogated while the defendant is in custody. The question in juvenile court proceedings and on appeal was whether the teenager was in custody at the time of the interrogation . The defendant does not actually have to be in custody. It is sufficient if the defendant is in a custody-like situation. The juvenile court ruled that he was not in custody. On appeal his attorneys argued that in determining whether the teenager was in custody the juvenile court should have taken into consideration that the teenager was a juvenile. The state argued that the same definition of custody should be used for all regardless of the age of the defendant.

The Supreme Court held last week that the juvenile court should have taken into consideration the defendant’s age. The Supreme Court ruled that a minor’s age must be taken into consideration due to the increased pressure juveniles feel to answer questions posed by law enforcement officials.

Justice Alito dissented saying that the purpose of Miranda was to create a uniform rule. Necessarily when you create a uniform rule it is both over inclusive and under inclusive. Miranda covers some people who do not need the warnings and other people who need stronger warnings. By giving children more protection you are destroying the uniformity of Miranda and opening up the door to more exceptions. However, the Court ruled that it was more important to prevent police from circumventing Miranda than providing one rule for both adults and juveniles.

In Florida v.Powell the Supreme Court decided, last year, that while there is a right to an attorney, under Miranda, both before and during an interrogation, merely telling a suspect that he had a right to an attorney before the commencement of an interrogation and not telling him/her that the right also covered the assistance of an attorney during the interrogation did not violate his/her rights under Miranda. The Court ruled that a logical person would feel that the attorney would not leave at the beginning of the interrogation and would still be present during the interrogation.

The question facing the Third Circuit Court of Appeals in United States v. Jermaine Antwon Warren,his week, was, after Powell’s determination that the right to an attorney existed both before and during the interrogation must the Miranda warning include a temporal section.

Jermaine Warren was arrested on narcotics charges. He was interrogated twice. The first time was at his residence by a parole officer who did not give him any Miranda warning. The trial court excluded this interrogation and the exclusion was confirmed by the Third Circuit. The second interrogation occurred at the police station by the police. He was given a Miranda warning but it was not read from a card. Instead the officer recited it from memory. It included no temporal statement that the right to an attorney would be available either before or during the interrogation.

The Third Circuit found that the post Miranda statement was admissible even if it did not state that the attorney would be available before and during the interrogation. The court found that nothing in the officer’s recitation of the Miranda warnings temporally limited the time the attorney would be able to held and further more that Supreme Court rulings only require that the substance of Miranda warnings be conveyed and that was accomplished. As a result the court upheld the conviction.

“SJ” a fifteen year old girl found nude pictures of herself on her guardian’s computer. She also found a hidden camera in the bathroom. She reported her findings to the police.

They performed a “knock and talk” at the residence of Jon R. Hughes. ¹

Prior to the “knock and talk” the police learned that Hughes’ mental state was very fragile and that he needed involuntary hospitalization. They did not plan to arrest him at the end of the “knock and search.” Instead they planned to get consent to search his computer and to hospitalize him.

Eventually he was arrested and raised search and Miranda issues before the Federal Court. The officers twice interview Hughes.The first time was during the “knock and search/” The court ruled that Miranda warnings were not necessary. Miranda warnings are only mandated when there is a interrogation and the person is effectively in custody. In this case the Court ruled that Hughes was not in custody. The interview occurred in his home. The police did not plan to arrest him and he was not arrested on that day. His mental state was poor. In fact he had an anxiety attack in the middle of the interview. But that standing alone does not show that the interview was involuntary.

Hughes claimed that his consent to search the computer was not voluntary due to his mental state. The court founhd that Hughes consent to search the computer or his lack thereof was immaterial. By the time the officers requested his consent he had already given them enough information to get a search warrant. Therefore under the theory of inevitable discovery his consent was immaterial.