Pre-Arrest, Pre-Miranda Right to Remain Silent

You have the right to remain silent…as long as you’re in custody and have been mirandized.

In Salinas v. State, the Texas Court of Criminal Appeals addressed an issue about which it and the Supreme Court have remained silent while many other courts across the nation are split; whether the state may comment on an accused's silence prior to his arrest and Miranda warnings.

In Salinas, the appellant was convicted for murder and sentenced to 20 years in the penitentiary after the state introduced evidence during guilt/innocence about his refusal to answer a question about the possibility of the shotgun shells found on scene matching the shotgun found at his residence.  Appellant refused to answer the question, choosing to remain silent, at a time prior to his arrest and before the police had issued any Miranda warnings.  The defense argued the state was solely using the testimony regarding appellant’s silence as evidence of his guilt in violation of the 5th Amendment.

The Fourteenth Court of Appeals (Houston) affirmed the trial court’s decision to allow the questioning, focusing on the difference between post-arrest, post-Miranda silence and pre-arrest, pre-Miranda silence.  The court of appeals noted that the appellant voluntarily answered questions by police for over an hour before refusing to answer the ballistics question.  Citing Justice Stevens concurring opinion in Jenkins v. Anderson, 447 U.S. 231 (1980) the CCA held:

the Fifth Amendment right against compulsory self-incrimination is "irrelevant to a citizen’s decision to remain silent when he is under no official compulsion to speak."

The CCA spent little time in this opinion to proclaim loudly it affirms the Fourteenth Court’s holding:

The plain language of the Fifth Amendment protects a defendant from compelled self-incrimination.  In pre-arrest, pre-Miranda circumstances, a suspect’s interaction with police officers is not compelled.

Now, we will continue waiting for SCOTUS to speak up on the issue hoping they don’t continue exercising their right to remain silent…

Just Saying an Interrogation is "Non-Custodial" Doesn't Make it "Non-Custodial"

United States v. Cavazos is a case out of the 5th Circuit Court of Appeals (Federal).  It involves an interlocutory appeal by the government after the trial court (U.S. District Court for the Western District of Texas) suppressed incriminating statements made by the accused prior to receiving his Miranda warnings.

Here's what happened:  Federal agents executed a warrant on the defendant's home between 5:30 a.m. and 6:00 a.m. searching for evidence that he had sent sexually explicit material to a minor female.  Approximately fourteen agents and officers (that's right, 14 agents and officers!) entered the residence and handcuffed the defendant as he was getting out of bed.  After the home was secured, agents removed the handcuffs and took the defendant to a bedroom for an interview.  Agents told the defendant that it was a “non-custodial” interview, that he was free to get something to eat and drink during it, and that he was free to use the bathroom (they curiously left out the part about him being free to leave and free to not answer their questions and free to seek the advice of counsel, hmmm...).  The agents then began questioning the defendant without reading him his Miranda rights.  The defendant admitted that he had been “sexting” the victim and he described communications he had been having with other minor females. 

At trial, the judge granted the defense motion to suppress the defendant's statements made to the officers during this interrogation.  The trial judge ruled that even though the officers told the defendant that the interrogation was "non-custodial," the facts of the case proved otherwise.

On appeal, the 5th Circuit affirmed the trial court and held that the defendant was subjected to a custodial interrogation when the agents questioned him in his home.  As a result, the incriminating statements made by the defendant were properly suppressed. 

A suspect is in custody for Miranda purposes when placed under formal arrest or when a there is a restraint on his movement to the degree associated with a formal arrest, even when there is no arrest.  The key question is under the circumstances, would a reasonable person have felt he was at liberty to terminate the interrogation and leave.  Here, the court said no.  First, fourteen agents entered the defendant's home, in the early morning, without his consent.  Second, although the defendant was free to use the bathroom or get a snack, when he did, he was followed by the agents and closely monitored.  Third, although the defendant was allowed to use a telephone to call his brother, the agents had him position the phone so they could listen to the conversation.  This indicated the agents’ control over the defendant while implying that he had no privacy.  While the agents told the defendant the interview was “non-custodial,” such a statement made to a reasonable lay-person is not the same as telling him that he can terminate the interrogation and leave. Also, such a statement, made in a person’s home does not have the same effect as if the agents had offered to leave at any time upon request.

Overzealous agents and officers always make for good caselaw.

Custodial Interrogation or Friendly Chat

As I wait on more slip opinions from the Court of Criminal Appeals, I’ve been randomly sifting through Courts of Appeals opinions. Today, the 7th District Court of Appeals (Amarillo) released a rather concise opinion in an aggravated sexual assault case. It’s worth an equally concise post.

In McGee v. State, appellant complained, inter alia, that his confession should have been suppressed because he was not given Miranda warning prior to issuing his confession to the police. Unconvinced, the Court of Appeals noted that appellant signed a written document containing Miranda warnings before he began speaking with police officers. The Court went on to state that “even if the warnings afforded appellant were somehow deficient, the record contained sufficient factual basis upon which the trial court could have reasonably found that appellant was not in custody at the time.”

Here are the facts to the Court highlighted to demonstrate that appellant was not “in custody” when he gave his confession:

1) Appellant transported himself to the police station to undergo a polygraph examination and questioning;
2) Questioning occurred in a rather large 15’ by 15’ room;
3) He was never told he was under arrest;
4) He was told he was free to go at any time;
5) No one threatened him;
6) No one restrained him;
7) Those asking the questions and administering the polygraph would have stopped if appellant indicated that he wanted to leave;
8) Appellant was at the station for approximately 2.5 hours before confessing;
9) He had no marks on him to indicate that he underwent any kind of physical abuse;
10) He not only was asked if he wanted to take a break or use the bathroom but also was told that he did not have to be there before the examination began;
11) He left that station after the interview; and
12) Nothing indicates that appellant ever attempted to leave, stop the questioning, take a break, or the like.

It seems to me like the Court if stretching a bit with some of those justifications. With an apparent affinity toward list-making, the Court went on to outline scenarios that would lead them to believe a person was in “custody:”

1) If appellant was physically deprived of his freedom in any significant way;
2) If someone told him he could not leave;
3) If the officers created an environment that would lead a reasonable person to believe his freedom of movement was significantly restricted; or
4) If there existed probable cause to arrest appellant and the officers told him he was not free to leave.

The Court explained, “[h]ad any of those four scenarios arose then appellant would have been in custody, but the evidence before us allowed the trial court of legitimately conclude otherwise.”

Seems simple enough. The problem is with the trial court interpretation of those four maxims.

A Good Custodial Interrogation String Cite

Everybody loves a good string cite.  You know, when the court wants to consolidate lots of authority for its position, but doesn't actually want to write about the cases, so it simply lists a string of case citations with a parenthetical one-line synopsis of the relevant holding.  In reading Campbell v. State, yesterday, a case out of the 2nd District (Fort Worth) regarding custodial versus non-custodial interrogations and Miranda warnings in a DWI context, I came across a good string cite and I thought I'd share it. 

To give some context, the court is in the process of determining whether Appellant's statements to police officers both prior to and after being placed in handcuffs should be excluded under article 38.22 of the Texas Code of Criminal Procedure or Miranda, when it provided this smattering of applicable Texas caselaw on the subject:

• Alford v. State, 22 S.W.3d 669, 671–72 (Tex. App.—Fort Worth2000, pet. ref’d) holding that appellant was in custody when he was stopped, placedon the ground, and handcuffed, and his response, that he had had six beers, whenasked if he had been drinking by an officer who arrived on the scene seven minutes later, should have been suppressed since he was not given his Miranda warnings;
• Jordy v. State, 969 S.W.2d 528, 531–32 (Tex. App.—Fort Worth 1998, no pet.) holding that appellant was subjected to a custodial interrogation following a traffic accident when he laid down on the ground and the officer called an ambulance before asking appellant how much he had had to drink, to which appellant replied,“A lot.”
• Rhodes v. State, 945 S.W.2d 115, 117–18 (Tex. Crim. App.) cert. denied, 522 U.S. 894 (1997) holding that incident was temporary investigative detention when officer testified at suppression hearing that he was not arresting Rhodes when he handcuffed him and that he handcuffed him primarily out of concern for officer safety—it was dark, the area was high-crime, and officer was alone with suspect;
• Arthur v. State, 216 S.W.3d 50, 53, 57–58 (Tex. App. --Fort Worth 2007, no pet.) holding that appellant’s statements were not a product of custodial interrogation when officer saw appellant’s vehicle drifting and speeding, initiated a traffic stop and asked some questions about whether she had had anything to drink which she answered inconsistently and in a loud, moderately slurred voice and administered three sobriety tests and a portable breath test before arresting her;
• Hernandez v. State,107 S.W.3d 41, 47–48 (Tex. App.—San Antonio 2003, pet. ref’d) concluding that appellant’s statement that he had consumed nine beers was made during investigatory detention after officer saw appellant speeding and weaving between lanes without signaling, pulled him over, noticed the smell of alcohol and appellant’s bloodshot eyes, and administered three field sobriety tests, all prior to full custodial arrest;
• Wappler v. State, 104 S.W.3d 661, 668 (Tex. App.—Houston [1st Dist.]2003) concluding that it was reasonable for the officer to secure appellant in handcuffs when appellant was uncooperative and belligerent, so that officer could complete his DWI investigation, rev’d on other grounds, 138 S.W.3d 331 (Tex. Crim. App. 2004);
• Lewis v. State, 72 S.W.3d 704, 708–13 (Tex. App.—Fort Worth 2002,pet. ref’d) distinguishing Jordy and Alford as presenting “other circumstances”requiring Miranda when their facts went beyond the roadside questioning and sobriety tests found in DWI temporary investigation cases.

There you have it.  If you have a custodial interrogation issue in a DWI case, you now have a jumpstart on your legal research.  Thank you 2nd Court of Appeals.

Officer Falsified Report to Induce Confession: CCA Reverses Conviction

Wilson v. State, NO. PD-0307-09.

In an issue of first impression (so says the majority - dissenters not convinced), the Texas Court of Criminal Appeals considered whether article 38.23 of the Code of Criminal Procedure bars the admissibility of a confession (to murder) if the interrogating officer fabricates documentary evidence in violation of the Texas Penal Code section 37.09 and uses it to persuade a suspect to confess.

In Wilson, a detective “knowingly creat[ed] the false document (a fingerprint test result) with the intention that defendant would consider the document as genuine and confess to shooting the victim.”  Writing for the slim majority (5-4), Judge Cochran reasoned that...

The purpose of section 37.09 is to maintain the honesty, integrity, and reliability of the justice system and prohibiting anyone–including members of the government–from creating, destroying, forging, altering, or otherwise tampering with evidence that may be used in an official investigation or judicial proceeding. Obstruction-of-justice offenses, such as tampering with evidence or government documents, address “the harm that comes from the [actor’s] disobedience of the law–damage to the authority of the government; a lessening of the public’s confidence in our institutions; public cynicism, fear, and uncertainty; and a social climate that is likely to lead to even greater disobedience."

Accordingly, the Court affirmed the decision of the "San Antonio Court of Appeals, which held that (1) the interrogating officer violated the law by fabricating a forensic report falsely stating that appellant’s fingerprints were found on the magazine clip of the murder weapon; and (2) the trial judge erred in denying appellant’s motion to suppress."

See majority opinion HERE.

The dissenters (Meyers, J., and Keller, P.J., Keasler, J., and Hervery, J.) would have reversed.

Meyers (HERE) would reverse because the officer did not, in his view, violate section 37.09, because the latent fingerprints could have very well been the suspect's (and in hindsight were).

Keasler, Keller, and Hervey would reverse because the appellant did not preserve error (HERE) and because he had no standing to challenge the officer's violation of section 37.09 (HERE).

When does a "Friendly Interview" become a "Custodial Interrogation?"

Texas Law enforcement is quite fond of the "friendly interview" (a.k.a. noncustodial interrogation) with crime suspects.  Many convictions are achieved through evidence that is gathered using this technique.  But when does a friendly interview become a custodial interrogation, thus triggering a person's constitutional rights?  More specifically, as the 13th District Court of Appeals considered in State v. Vasquez, when must a person's request for counsel be honored and the interrogation be terminated?

In Vasquez, the defendant, who had been a suspect in a murder case, voluntarily accompanied police officers to the station for additional questioning.  This occurred 4 years after the crime and initial interview of the defendant had taken place.  As found by the trial court, the defendant repeatedly requested his lawyer whom he had retained 4 years prior, when the case first arose.  Despite the defendant's requests for counsel, the police continued the interrogation and obtained an incriminatory statement.  In opposition to the defense motion to suppress the statement, the State argued that interrogation was not "custodial."  The trial court granted the motion to suppress.

In affirming the trial court's order granting the Motion to Suppress, the 13th District Court of Appeals, relying entirely on precedent from the U.S. Supreme Court and the Texas Court of Criminal Appeals, held:

"A person is in custody if, under the totality of the circumstances, a reasonable person would believe his freedom of movement was restrained to the degree associated with a formal arrest."  Dowhitt v. State, 931 S.W.2d 244 (Tex. Crim. App. 1996)

"When a person voluntarily accompanies officers to an interview, and he knows or should know that the police officers suspect he may be implicated in the crime under investigation, he is not 'restrained of movement' and is not in custody.  Shiflet v. State, 732 S.W.2d 622 (Tex. Crim. App. 1985).  However, and interview that begins as noncustodial may escalate into a custodial interrogation because of police conduct during the encounter.  Dowhitt at 255.

In determining whether a custodial interrogation, the Court examined the totality of the circumstances in light of the four factors discussed in Dowhitt, which are:

1. if the suspect is physically deprived of his freedom of action in any significant way;
2. if law enforcement officers tell a suspect that he cannot leave;
3. if law enforcement officers create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted (such as reading him his Miranda warnings); or 
4. if there is probable cause to arrest and law enforcement officers do not tell the suspect that his is free to leave.  

Applying the law to a view of the evidence in the light most favorable to the trial court's decision, the Court held that "there is some evidence to support an implicit finding that Vasquez was physically deprived of his freedom of action in a significant was by not being provided the retained counsel that he repeatedly requested."  The Court further held that:

"an innocent person in Vasquez's position who was: (1) approached at home by two sheriff's deputies and told that he 'had to go' with them, without reference to the matter in question. (2) taken to a sheriff's department office, (3) Mirandized, (4) questioned by three officers, (5) repeatedly told, against his belief, that he was no longer represented by a retained counsel, and (6) questioned after his repeated requests for retained counsel, would have believed he was in custody."

Accordingly, the order granting the motion to suppress was affirmed.

As you can see, this area of law is very fact dependent and as such, the decision of the trial court with be given considerable deference. If the trial court had denied the motion to suppress, the appellate court could have probably crafted an opinion affirming the denial.

LWOP Upheld for Juvenile Capital Murder Case

The Fourth Court of Appeals (San Antonio), who, by the way, issues the most aesthetically pleasing opinions, just upheld a Cruel and Unusual Punishment challenge Texas' sentencing scheme (pre-Sept 1, 2009) that imposed a mandatory life without parole (LWOP) punishment on a juvenile capital murder offender.  Meadoux v. State.

Appellant (16 years old), who was questioned for over an hour at the police station, ultimately confessed to killing his 2 friends (accidentally, of course).  The police officers never advised Appellant of his Miranda rights, maintaining that he was could terminate the "interview" and leave anytime he wished.  Accordingly, Appellant challenged, at trial and on appeal, the admission of his incriminating statement, as well as the Texas sentencing scheme of mandatory LWOP.

After a lengthy (and intriguing) recitation of the facts of the case, the Court spent another 11 pages discussing what is well-established precedent.  "Viewing all the evidence in the light most favorable to the court's ruling" the Court affirmed the decision of the trial court that Appellant was not "in custody" and therefore, the officers were not required to read him his Miranda rights.  Furthermore, because Appellant was not "in custody" the trial court did not have to submit a question to the jury regarding whether the confession was "voluntary."

If you want a crash course on juvenile criminal procedure, including the admissibility of statements, whether an interrogation is "custodial" and whether Miranda warnings are required, check out the full text of the case here.  Justice Speedlin does an excellent job in her presentation of the law and application of the facts.  Really, in my view, it could have gone either way at the trial level, but once the trial judge has spoken, it would have been a stretch for the appellate court to deviate.

I see all of this as a side issue, because, for me (and possibly the CCA), the thrust of this case was the issue of the constitutionality of mandatory LWOP for juvenile capital murder offenders.  I hate that the Court gave such little attention to this issue (4 measly pages).  As the Court notes, the U.S. Supreme Court recently heard oral arguments on the question of whether LWOP for a non-homicide offense committed by a juvenile is "cruel and unusual." Sullivan and Graham.

I know what you are thinking... "the Supremes are only considering the constitutionality of LWOP for a non-homicide offense and they will not likely extend any opinion beyond the issue presented."  Right you are, but if (and that's a big IF) they hold that LWOP for a juvenile is unconstitutional as it applies to non-homicide offenses, we are only a small step (and a slight shift in public opinion or court ideological makeup) away from LWOP being unconstitutional for all juvenile cases.  If you'll remember, it wasn't too long ago that a state could execute a mentally retarded person.

This hardly stands to cause a big fuss in Texas, because, as you may know, Texas recently amended section 12.31(a) of the penal code which now requires a mandatory Life sentence for juvenile cases rather than LWOP.  But be on the lookout for U.S. Supreme Court opinions embracing this issue (Sullivan v. Florida and Graham v. Florida), for, while they are unlikely to affect current TX cases, they could bring on a firestorm of habeus petitions.