Legal Updates Fall 2013

Statement the defendant would be taken home if he was honest did not require exclusion of the statement

In Sparrow v. State (October 2013) the Court of Appeals of Georgia, found that telling the suspect that he would be taken home after the questioning if he was honest with the investigators did not make the confession involuntary. The court stated the following:

"On appeal, Sparrow argues that the trial court erred by admitting his confession because it was not voluntary. He points to Mann's promises of secrecy and that he would take Sparrow home after the interview if Sparrow was honest with him. But based on our review of the videotape, it is clear that Mann did not promise anything with respect to prosecution for the burglary. Mann had told Sparrow that he still needed to speak with the victim of the crime to determine what would happen next, thus, Mann's promise was merely that he would take him home after questioning and not that Sparrow would be free from future charges. A promise to take the suspect home after questioning--not relating to ultimate charges or sentences for the suspected crime--is merely a collateral benefit that does not require automatic exclusion of the confession... Further, ... a promise of secrecy shall not require exclusion of the statement, so Mann's promise not to tell Sparrow's sister or his parole officer about the drug use does not render Sparrow's statement involuntary. Based on the totality of the circumstances, the record supports the trial court's determination that Sparrow's statements were not subject to exclusion...

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Court expresses concerns interrogation was not recorded

In US v Bundy (August 2013) the US District Court, D. New Mexico found that the defendant's statements should have been suppressed, and expressed concern that the interrogation was not recorded. From the court's opinion:

"This case arises out of a March 5, 2011 rollover accident in which Larry Mark, one of three occupants of a pickup truck, received fatal injuries. The two remaining occupants, Defendant and Roland Deale, the owner of the truck, were seriously injured, but recovered. Other than the three occupants, there were no eyewitnesses.

The identity of the driver is hotly disputed.... The parties have retained "dueling" accident reconstructionists who have reached conflicting conclusions as to whether Roland Deale or Defendant was driving at the time of the accident.

The Court is severely handicapped in its assessment of the voluntariness of Defendant's statements by the United States' failure to electronically record the interrogation leading to her statements. The FBI agents who conducted the interrogation clearly knew and intended that any inculpatory statements given by Defendant would be the centerpiece of the United States' case if charges were brought against Defendant. Yet, consistent with FBI standard operating procedures, the interrogation was not recorded, resulting in the loss of irreplaceable information, such as the actual words spoken by the participants, their body language, facial expressions and tone of voice, and other nuances that cannot be conveyed by an after-the-fact, written report. The following excerpt from Agent Sullivan's report of the interrogation provides a perfect illustration of this loss of crucial information:

Bundy was told that she had failed the polygraph examination. Initially she maintained that she had blacked out and did not recall driving, however eventually became emotional and stated that it was likely that she was the driver considering that she had been the driver throughout that day. (Emphasis added).

Agent Mackay's report presents similar problems:
BUNDY initially claimed to not remember the incidents that led up to the vehicular collision or who actually drove the vehicle during the collision. A few minutes later BUNDY recanted and admitted she knew for a fact that she was the driver of the vehicle during the collision. (Emphasis added).

What is missing are the details of what was said in the critical intervals during which Defendant moved from no recollection to certainty that she was driving. What portion of the three and onehalf hours that Defendant was present in the interview room was consumed between "initially" and "eventually"? How long was "a few minutes"? What techniques were employed during these gaps at critical points in the interrogation? The Court cannot require the United States to record interrogations. But if the United States fails to record interrogations, it must bear the consequence in cases such as the present where the actual words employed by the participants, their tone of voice, and their body language are necessary factors in the Court's voluntariness analysis... The irretrievable loss of crucial information bearing on the voluntariness of Defendant's statements was underscored by Agent Sullivan's testimony during the January 23, 2012 evidentiary hearing that "my recollection would have been much clearer back in May 2011 that it would be now. I can only defer to what the report says." [Doc. 47 at 85-86] Since the United States, not Defendant, bears the burden of proof, these evidentiary lacunae at critical points in the interrogation constitute a failure of proof on the United States' claim that Defendant's statements were voluntary.
During the interrogation, Defendant steadfastly maintained that she had no recollection of the accident. This is not a case in which such a claim of loss of memory is inherently suspect. It is undisputed that Defendant was extremely intoxicated at the time of the accident and was ejected from the truck, suffering severe injuries.

The Court is concerned that Agent Sullivan, by her manner of questioning, led Defendant to accept the flawed hypothesis that if she was driving as the truck left the Deshnod residence, she must have been driving at the time of the accident... This is borne out by Defendant's statement that "it was likely that [I] was the driver considering that [I] had been the driver throughout that day," [Ex. R. at 3] and her statement "[I] do[ ] not feel any one else could have been driving the vehicle" [Ex. S. at 1]. Defendant appears to this Court to have been reasoning by inference from the incomplete facts provided by Agent Sullivan rather than actually recalling the accident.

The United States, not Defendant, bears the burden of proof. The United States must convince the Court, by a preponderance of the evidence, that Defendant's confession was voluntary. No single factor is determinative in the analysis. Here, the evidence discloses that during her interrogation, Defendant, a Navajo woman, was emotionally vulnerable, was fearful of losing her children, was experiencing pain resulting from severe injuries sustained in the accident, and was on several medications including percocet, oxycodone and muscle relaxants. Most importantly, there are good grounds to believe that at the time of her interrogation Defendant had no actual recollection of the events immediately preceding the accident, including who was driving at the time of the accident. In light of all of the circumstances, this Court concludes that the United States has not met its burden of proof. The United States has not persuaded this Court that it is more likely than not that Defendant's inculpatory statements were her own voluntary recollection of events as opposed to the products of suggestive and confrontational questioning by Agents Sullivan and Mackay that overbore her will.

Because the United States has not met its burden of demonstrating that Defendant's inculpatory statements were made voluntarily, her statements must be suppressed."

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Value of recording - defendant claimed interrogator's hostile and aggressive tone of voice led to a coerced confession

In US v. Mitchell (September 2013) the US District Court, N.D. Texas, upheld the admissibility of the defendant's waiver and statements even though he had claimed that the "detective's alleged statements to Defendant, the detective's alleged tone of voice, and Defendant's lack of sleep, lack of food, and medical condition" prevented him from making a free and deliberate choice to waive his Miranda rights. The court ruled that, "These factors did not intimidate, coerce, or deceive Defendant into waiving rights that he did not want to waive. First, the government's Exhibit A shows that before the detective read the Miranda rights to Defendant, the detective simply asked Defendant to share a few things about himself, such as where he grew up, what his grades were, how far into high school he went, and whether he played any sports. The detective stated that he likes to give people an opportunity to tell him about themselves. None of these statements prevented Defendant from making a free and deliberate choice to waive his Miranda rights, and Defendant knew what rights he was waiving and the consequences of that waiver. Additionally, based on the government's Exhibit A, the detective did not raise his voice or become hostile before Defendant waived his rights.

Additionally, given the totality of the surrounding circumstances after Defendant waived his Miranda rights, Defendant's will was not overwhelmed by the circumstances surrounding the statements that he made. The detective's alleged statements that simply encouraged Defendant to say something positive about himself, the detective's alleged hostile or aggressive tone, and Defendant's alleged lack of sleep, lack of food, and medical condition do not reach a level that would overwhelm Defendant's will to voluntarily make statements during the interrogation. Simply telling Defendant that he needs "something positive" on his side does not come close to the type of coercion that would make Defendant's statements involuntary. While there is no Fifth Circuit precedent precisely discussing an interrogator raising his or her voice in this context, other circuits have held that an officer raising his voice "does not render a confession involuntary unless the overall impact of the interrogation caused the defendant's will to be overborne." ... After listening to the audio of the interrogation in its entirety, the court does not believe the tone of voice rose to the level that would cause Defendant to be "overborne" and thereby render any of his statements involuntary. The court certainly does not expect an interrogator to act in a coercive, threatening, or overbearing manner; however, an interrogation is not a playbook for civility. An interrogating officer can, and often does, use terms and language that would not be appropriate in another venue. As the Fifth Circuit has noted, "there is nothing inherently wrong with efforts to create a favorable climate for confession." ... Further, it is universally known that an interrogation can be stopped at any time by a custodial suspect.

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Investigators did not have to tell defendant an attorney was at the police station to see him

In Commonwealth v. Rushing (June 2013) the Superior Court of Pennsylvania found that the investigators did not have to advise the defendant that an attorney was present a the police station to see him. From the court's opinion:

"Next, Appellant argues that the suppression court erred in failing to find his waiver of his Miranda rights was invalid because Attorney Paul Walker of the Lackawanna County Public Defender's Office presented himself at the Scranton Police Department and asked to speak with Appellant, but was prohibited. Attorney Walker also had contacted the district attorney and requested that police not interview Appellant without him being present. The desk officer at the Scranton police station relayed Attorney Walker's presence to the assistant district attorney at the police station. Attorney Walker was informed that the assistant district attorney... would talk to him soon. However, after remaining at the station for an extended period without gaining access to Appellant, Attorney Walker left. He later received a telephone call from the assistant district attorney indicating that Appellant already had been interviewed. Police did not inform Appellant of Attorney Walker's presence or attempts to speak with him.

In regards to Appellant's argument pertaining to Attorney Walker's appearance at the police station, the Commonwealth contends that because Appellant never requested an attorney and Attorney Walker was not retained by Appellant, no constitutional violation occurred. The Commonwealth argues, "the presence or absence of an attorney in the police station is irrelevant to [Appellant's] waiver of his Miranda rights."

We also observe that the Fifth Amendment right to counsel is a personal right which can only be invoked by the person holding that right. Accordingly, whether an attorney physically appears in an attempt to represent the accused does not alter the fact that it is the accused who must invoke his Fifth Amendment right to counsel. Certainly, the presence of an attorney, coupled with any misstatements made by police regarding the ability to speak with a lawyer, could affect a defendant's voluntary, intelligent, and knowing waiver of his Miranda rights. Nonetheless, there is nothing in the present record that indicates in any manner that Appellant's Miranda waiver was anything less than knowing, intelligent, and voluntary. Police did not inform Appellant that he could not speak with a lawyer or that an attorney did not want to speak with him. Simply put, Appellant was aware of his constitutional right to consult with a lawyer and exercised his right to speak to police without an attorney. Since Appellant never invoked his right to counsel, the fact that an attorney appeared at the police station and that his interview took place while counsel attempted to speak with him does not establish a Miranda violation.

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Alleged false confession obtained by interrogator in prior case not admissible to prove pattern of practice

In State v. Adams (May 2013) the Court of Appeal of Louisiana, Fifth Circuit, upheld the trial court's decision to exclude evidence that the investigator obtained an alleged false confession in a prion case so as to suggest a pattern of behavior. From the court's opinion:

"Defendant gave two statements to police. In his first statement, defendant denied any participation in the victim's murder. In his second statement, defendant confessed to the murder, though he claimed he shot the victim in self-defense. At trial, and now on appeal, defendant asserts that his second statement taken by Detective Meunier was a coerced false confession. In support of this assertion, defendant... sought to introduce evidence of an unrelated criminal case in which he alleges Detective Meunier, through physical force and coercion, obtained a false confession from the suspect.

Defendant sought to admit evidence of the alleged false confession taken by Detective Meunier in the unrelated criminal case for two reasons: (1) to impeach Detective Meunier's credibility and (2) to prove that Detective Meunier had the habit, custom, or routine practice of eliciting false confessions from suspects through force or coercion and that he acted consistently with that habit or practice when he elicited defendant's confession....

We find that, even if defendant could prove that Detective Meunier obtained a false confession in the unrelated Lindsey case, that singular occurrence is not sufficient to prove that Detective Meunier has a habit or routine practice of eliciting false confessions from suspects through coercion. Accordingly, we find the trial court did not abuse its discretion in excluding the evidence and that exclusion of the evidence did not deprive defendant of his right to present a defense.
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Value of video recording interrogation

In Dowell v. Lincoln County (February 2013) the US District Court, E.D. Missouri, Eastern Division, upheld the trial court's decision that the defendant's statements were coerced. In this case, "Dowell claims that his statements were made involuntarily for a number of reasons. He argues that there is a question of fact as to whether defendants read him his Miranda warnings before questioning him in the van. Dowell further argues that defendants yelled at him, threatened him with the death penalty, and spit on the floor of the interrogation room, and that they continued to interrogate him after he requested to have an attorney present, to remain silent, to have the interrogation cease, to be placed in a jail cell, to be presented before a judge, to use a restroom, and to make a phone call.

The undisputed facts do not support Dowell's Fifth Amendment claim. Even if defendants failed to read Dowell the Miranda warnings in the van, "[p]olice cannot violate the Self-Incrimination Clause by taking unwarned though voluntary statements." ... The evidence shows that Dowell's statements in the van, as well as at the police station, were voluntary. In his deposition, Dowell stated that he felt threatened during the interrogation. However, Dowell also testified that defendants never used physical violence against him, nor did they say anything that he interpreted as a threat of violence....

It is also evident from the videotaped interrogation that Dowell was of at least average intelligence, had previous contact with law enforcement, and had been read the Miranda warnings on some prior occasion.... Further, the video shows that upon arriving at the station immediately after the van ride, Dowell was calm and composed, and did not give any indication that the officers had so intimidated him as to overbear his will.... There is no evidence that would allow a fact-finder to conclude that his statements were involuntarily made. Instead, the undisputed, objective evidence shows that Dowell was thoughtful and calculating about his responses, and that his capacity for self-determination was not impaired.

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Detective's statements during the interrogation telling defendant that he thought she was lying were admissible

In Johnson v. Commonwealth (August 29, 2013) the Supreme Court of Kentucky upheld the lower court's decision to allow the jury to hear audio tapes of the defendant's interrogation in which they heard the investigator say he thought the defendant was lying.

From the court's opinion: "The recordings contained instances of a detective telling the Appellant that he thought she was lying... Appellant initially objects to the playing of the tapes because they contain repeated instances where the interrogating detective expressed his opinions about whether the Appellant was telling the truth about the circumstances of the victim's death. Specifically, he stated on tape that Appellant "put [the bruise] there" and "punched him in the back." As the interview progressed, Detective Allen appeared to express more frustration, yelling "I'm so sick ... of your bullcrap, bullcrap, bullcrap! You keep sitting there saying [that the police are] lying! When twelve jurors are sitting there, we'll see who's lying!"

Eventually the Appellant appeared to have broken down a bit and told Detective Allen that she "didn't understand," that she was "already dead inside," and she would "give [her] life." Detective Allen continued to push the Appellant to admit to the crime and to admit to lying about bruising on the victim, which she had originally denied seeing. Appellant pleaded with Detective Allen that she was telling the truth, to which Detective Allen responded "I'm not buying into that. I'm wasting my time ... two days interviewing you ... we've got enough for an arrest ... tell [your story] to twelve jurors."

The jury heard these tapes in their entirety.

The issue with playing these audiotaped interrogations in their entirety, specifically the portions of them that contain statements made by a law enforcement official that suggest, if not explicitly state, that the officer believes that the defendant is lying, is very similar to a witness characterizing the testimony of another witness as "lying." It has long been the law of this Commonwealth that a "witness's opinion about the truth of the testimony of another witness is not permitted.... That determination is within the exclusive province of the jury...... Technically speaking, however, when an officer makes statements during an interview accusing a person of lying, neither the officer nor the person is a witness at that time. The question, then, is whether the principle in Moss extends outside the courtroom so as to make it unduly prejudicial to allow a jury to hear the portions of an interrogation of a criminal defendant wherein an officer accuses the defendant of lying.

This Court addressed this precise issue in Lanham v. Commonwealth, 171 S.W.3d 14 (Ky.2005), and held that such statements are admissible. In so holding, the Court decided that Moss did not extend to recordings of police interrogations and stated:

We agree that such recorded statements by the police during an interrogation are a legitimate, even ordinary, interrogation technique, especially when a suspect's story shifts and changes. We also agree that retaining such comments in the version of the interrogation recording played for the jury is necessary to provide a context for the answers given by the suspect.'

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Expert testimony allowed on the impact of opiate addiction on confession reliability

In State v. Granskie (October 2013) the Superior Court of New Jersey, Appellate Division, upheld the lower court's decision to allow expert psychiatric testimony concerning the potential impact of the defendant's opiate addiction and withdrawal symptoms on the reliability of his confession. From their opinion:

"Defendant was suspected of participating in a brutal sexual assault and murder. Two of his friends confessed to their involvement, but did not implicate defendant. He initially denied any involvement in the crime. However, a few days later, while he was in jail on an unrelated warrant, he confessed. Prior to his trial, defendant claimed that the confession was not voluntary and was unreliable, because he was suffering from severe heroin withdrawal symptoms at the time he gave the statement.

... the trial judge held that at an upcoming Miranda hearing and at trial defendant could present an expert psychiatrist to testify about the possible relationship between his heroin withdrawal and his confession. The expert would be permitted to testify that defendant was addicted to heroin and was suffering from withdrawal when he gave his statement to the police, and that his claims about the effects of withdrawal were "consistent with his claim that he was giving an unreliable statement at the time" of his confession, "given his history of issues with heroin dependence."

On this appeal, the State characterizes the trial judge's decision as a departure from established case law. We disagree. His ruling was consistent with settled precedent upholding a defendant's right to present expert testimony designed to explain to the jury why a particular defendant's psychological condition would make that defendant vulnerable to giving a false confession. By contrast, courts have routinely rejected efforts to present expert testimony concerning the phenomenon of false confessions in general or the impact of police interrogation methods in producing false confessions.

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12-year-old should have been advised of his Miranda rights

In State v. D.P. (October 2013) the Court of Appeals of Oregon ruled that a 12-year-old should have been advised of his Miranda rights when he was being questioned at school about allegedly having sexual intercourse with a 10-year-old girl.

The court ruled that "taking into account the length of the interview, the location, youth's age, maturity level, the repetitive and escalating nature of the questions throughout the interview, and the increasingly coercive tactics used by the detectives, a reasonable twelve-year-old of similar age, knowledge and experience, placed in youth's situation, would have felt required to stay and answer all of the detective's questions... In sum, we hold that, given the totality of the circumstances and in view of youth's age and experience--or lack thereof--the setting in which the interview took place was "compelling." Thus, Miranda warnings were required. The juvenile court erred in denying youth's motion to suppress."

In determining whether the circumstance of the interview were "compelling" the court described the details as follows: "Here, the detectives initially made a concerted effort to be unimposing in both dress and demeanor, and attempted to keep the interview "low key" so that they would not scare or intimidate youth. The detectives shook hands with youth when he entered, kept their voices down, asked specific questions, avoided leading questions, used simple language, and gave youth time to answer each question. Neither detective wore a uniform or displayed his badge or firearm. At the beginning of the interview, the detectives explicitly told youth that he was free to leave, and that he was not required to answer questions. Youth affirmed that he understood those things. The detectives also explained to youth that they were not going to arrest him that day no matter what happened during the interview. The detectives requested youth's permission to record the interview, youth declined, and the detectives complied with youth's directive.

On the other hand, the detectives deliberately chose an interview location--an office at youth's school--in part, so that youth's parents would not interrupt the interview. Youth did not come to the interview room of his own volition; instead, he was summoned by the school's principal, removed from class, and escorted into the interview room, where he was then left alone with two police detectives. He was seated with his back facing the closed door, so that he could not see the exit. The detectives did not call youth's parents before the interview. Youth did not have anyone familiar in the interview room with him, such as a parent, counselor, or teacher. The detectives did not tell youth that any of those people could be present. The detectives did not inform youth that he had a right to refuse the request for the DNA swab. The interview lasted for one hour and forty minutes. Further, although youth had consistently denied any sexual contact and any wrongdoing, throughout the interview the detectives revisited topics and questions in an effort to elicit different answers from youth. The detectives spoke about DNA, DNA transfer, and the sexual assault kit multiple times; they reiterated that if youth did not tell them the truth, then "the decision maker would have to make assumptions." Throughout the entire interview, the detectives repeatedly renewed their directive that youth had to tell his parents "the truth," despite youth's statements that he feared doing so and that he had not done anything wrong.

The detectives' initial inquiries were to find out "what happened"; later, the detectives said that youth could decide "to tell the truth or not tell us what happen[ed]." In contrast to the "low key" approach employed at the outset, by the end of the interview the questions were pointed and presumed youth's guilt--e.g ., asking "how long [youth's] penis had been in [the victim]'s vagina." The detectives told youth that the victim needed an explanation, and repeated multiple times--all while youth continued to deny any wrong doing--that, if youth had been older, he would be going to prison. Instead, they explained that since he was only 12 years old, it would be handled "differently"--but they did not to explain what consequences he might actually face. Finally, near the end of the interview, Smith stood up, donned blue plastic gloves, opened the DNA testing kit, and asked youth to consent to a DNA swab-after repeatedly explaining to youth how DNA can transfer from person to person and without informing youth that he could withhold consent.

Although the detectives were unaware of the extent of youth's prior behavioral problems--such as youth's propensity to be argumentative; youth's marked emotional, social, and intellectual immaturity; or youth's need for concrete and succinct answers to questions--they were aware of youth's age, his prior behavioral issues, his need for an unconventional schooling environment to address his behavioral problems, and the conditions surrounding the allegations against youth. Thus, at a minimum, the detectives should have known from the circumstances that youth was in a category of children that require a heightened level of precautions to ensure that he understood that he was not required to stay or answer the detectives' questions."

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Value of video in protecting a confession

In US v. Smith (October 2013) the US District Court, E.D. Michigan, Southern Division, upheld the defendant's confession relying extensively on the videotape of the interrogation.

On February 27, 2013, defendant Smith was interviewed at the Taylor Police Department. Prior to his interview, detective Schwein provided him with Miranda warnings. The government claims that Smith waived his Miranda rights. Smith alleges that he invoked his Fifth Amendment right against self-incrimination numerous times during the interrogation, or in the alternative, that any waiver of his Miranda rights was not voluntary. During the interview, Smith admitted to his role in several robberies, including the February 12, 2013 armed robbery of a Verizon Wireless store located in Taylor, Michigan. (Exhibit A, Interrogation Video, 00:15:01-00:16:02)... According to Smith, the questioning lasted nearly five hours, during which time he was subjected to sleep deprivation and a cold temperature while he was barefoot and wearing a short-sleeved shirt. Smith claims that he told the officer on as many as eight times that he was done talking and that on two occasions he asked to speak with an attorney but his requests were ignored.

A careful review of the videotaped interrogation reveals that early on in the questioning, after Smith was advised of his rights, he said numerous times, "I'm done," or "I'm done talking." (21:11:24-34; 21:11:43-44; 21:18:58-59; 21:21:24-28). In each of the approximately eight times that Smith said he was done, however, he continued talking and questioning continued. At certain points, Officer Schwein was the one stating that he was "done" talking. (21:23:58). Early in the interrogation Smith said, "I'm going to call for a lawyer or an attorney." (21:23:31-32). A few minutes later, Officer Schwein said, "you talked about an attorney. Is that what you want to do, or do you want to talk to me?" (21:31:30-35). Smith responded, "I don't want no attorney, I want to get home." (21:31:40). About thirty minutes later, Smith said more forcefully, "I'm done talking ... that's that." (22:03:46-22:04:04). At that point, Officer Schwein terminated questioning and led Smith to a holding cell. While leaving the room, Smith complained that he needed boots, and Officer Schwein provided him with shoes. (22:04:18). Approximately ten minutes later, the two returned to the interrogation room, and prior to resuming questioning, Officer Schwein showed Smith a copy of the Miranda rights form that Smith had signed and reminded him that his rights were still in effect. (22:16:25). Officer Schwein stated, "while we were downstairs ... you asked me to bring you back up here to talk to me. Fair statement?" to which Smith responded, "Yeah." (22:16:40).

A short while later, Smith stated that he needed to "call my girl so I can tell her to get me a lawyer ready." (22:39:35). At that point, Officer Schwein asked him, "Do you want to end this?" (22:39:45), to which Smith responded, "I just want to call my girl." (22:40:02). A few moments later, Officer Schwein left the room and Officer Cox entered the room and began interrogating Smith. (22:40:15). Questioning ceased about fifteen minutes later when Smith stated that he would wait for his court date. (22:54:01). Again the officers stopped questioning him and led Smith out of the interrogation room. (22:54:19). Several minutes later, Smith and Officer Schwein returned to the interrogation room and questioning resumed. (23:00:09). Upon return, Smith appears eager to answer questions. Officer Cox brought Smith a drink and a slice of pizza. (23:02:08). Smith admitted to driving the get-away vehicle in one of the robberies. (23:03:26-23:07:38). Later, Smith said he was dizzy and jittery and he stood up and stated that he wanted to call his girl. (23:29:33-45). Again, the officers stopped questioning him and led him out of the interrogation room. (23:30:20). As he reentered the interrogation room about ten minutes later, the video shows Smith waving Officers Schwein and Cox back into the room, and in response to Officer Cox's statement, "Do you want to talk to me?" Smith responded, "yeah." (23:40:30). After this point, Smith made many damaging admissions. (23:43:00-00:18:50). Smith admitted to his involvement in the attempted robbery of a T-Mobile store and a Verizon store, and the robbery of an AT & T store. (23:43:31-23:44:57). Finally, Smith admitted to his involvement in the robbery of a Verizon store where he entered a side door, ordered an employee to open the safe, loaded a duffel bag with cell phones, and carried the bag out of the store. (00:15:01-00:16:53). These admissions were made to Officer Cox while Officer Schwein was out of the room.

Smith claims that Officer Schwein's questioning tactics were coercive because he pounded on the table, cursed at Smith demanding that he "own" that he was culpable and inevitably going to jail, and told Smith that "[t]his is MY house!" and that he, not Smith, was entitled to direct the conversation. (21:22:43-21:23:30). These tactics occurred hours before Smith reinitiated the interview by waving the officers back into the interrogation room, indicated that he wanted to talk, and confessed.

Smith did not clearly and unambiguously invoke his right to remain silent. Although early in the interrogation, Smith said several times, "I'm done talking," "that's it," "that's all I'm saying," "I'm done," (21:11:24-34; 21:11:43-44; 21:18:58-59; 21:21:24-28), at each point that Smith said, "I'm done," he continued talking. In fact, Officer Schwein also said that "we're done." (21:23:56). When Smith said more forcefully, "I'm done talking" (22:03:52) and that he wanted to "call his girl," Officer Schwein stopped questioning him and led him out of the interrogation room. When the questioning resumed later, Smith was reminded of his Miranda rights and indicated that he had asked to return to the interrogation room and that he wanted to keep talking. It was not until questioning was resumed and Smith indicated his intention to waive his Miranda rights and keep talking that Smith made the incriminating statements. Thus, even if Smith's statements early in the custodial interview that he was "done" could be considered to be unequivocal invocations of his right to remain silent, his damaging admissions were not made until much later in the interview after Smith had clearly waived those rights.

The law is well settled that once a defendant invokes the right to stop talking, all questioning must cease unless the defendant initiates further communication, exchanges, or conversations with the police... In this case, the court finds that it was Smith who reinitiated questioning each time the police interview resumed. In each instance where he returned to the interrogation room, the video depicts him as eager to tell his side of the story, and it is clear that the questioning resumed at his request. Moreover, during the final minutes of the interrogation where Smith makes the most damaging admissions, he not only waves Officer Cox back into the room with him but responds, "Yeah" when Officer Cox asks him if he wants to talk to him. Because Smith returned for questioning on his own initiative, he waived his Miranda right to remain silent.

Under this reasoning, Smith's first request for counsel wherein he stated, "I'm going to call for a lawyer or an attorney" (21:23:31-32) was ambiguous where just a few moments later, Smith said, "I don't want no attorney, I want to get home." (21:31:35-40). Later in the interview, Smith stated that he wanted to "call my girl so I can tell her to get me a lawyer ready." (22:39:35). This statement was also ambiguous as when Officer Schwein asked him for clarification as to whether he wanted to end the interrogation, Smith responded "I just want to call my girl." (22:39:58). Smith's statement that he wanted to call his "girl" to get a "lawyer ready" was not an unequivocal request for counsel during the police interrogation, but may just as easily have been a request that he have an attorney "ready" at some future point in time. Under the objective standard, the police officers may not have understood that Smith was requesting counsel during custodial interrogation.

Even if Smith did invoke his Fifth Amendment right to counsel, he later waived that right. Smith did not make his most damaging admissions until after a break in questioning whereupon the interview resumed at his request. From the video, it is obvious that Smith now wants to talk as he is seen physically waving the officers back into the room with his hands and states that he wants to answer their questions. (23:40:30). Smith himself reinitiated the police interview after asking for counsel; thus, under the holding of the Supreme Court in Oregon v. Bradshaw, there is no Edwards violation in this case.

In this case, Smith argues that his confession was involuntary because officers screamed at him and questioned him for five hours. Smith further contends his confession was involuntary because he was cold and tired, was 19 years old, and only had an eleventh grade education. The government responds that Smith was not deprived of any physical necessities, was offered food and was served pizza even when he declined it, and when he complained that he wanted to wear boots, Detective Schwein stopped the interview and provided Smith with shoes. The government contends that Smith's complaints of police coercion fall well short of the types of cases where police coercion has been found to exist.

The facts of this case are not analogous to those situations where the Supreme Court has found police coercion to be present. While Smith complains that Officer Schwein screamed at him, this only occurred for a short while during the beginning of the interrogation and not after Smith reinitiated questioning and confessed. In addition, Smith does not appear at all intimidated by the screaming as he yells right back at Officer Schwein. Although the duration of the questioning lasted for five hours, this duration does not compare to the days of questioning noted to be constitutionally infirm in Ledbetter. Smith's claim that he was cold and barefoot does not amount to coercion where the officers provided Smith with shoes when he complained he wanted his boots, and offered and served him food during the interrogation. This court recognizes that police coercion need not be only physical and can be psychological....; however, the Sixth Circuit has cautioned that "not all psychological tactics are unconstitutional."..... The Sixth Circuit has stated that "there is nothing inherently wrong with efforts to create a favorable climate for a confession," and " 'neither 'mere emotionalism and confusion' nor mere 'trickery' will alone necessarily invalidate a confession."

In addition to a lack of evidence of police coercion, Smith also cannot show that his will was overborne. Despite Smith's claims that he was young and poorly educated, he was an adult, had completed eleventh grade, was living independently and holding down a job, and caring for his younger brother. Moreover, Smith had experience in the criminal justice system based on his contacts with police for domestic violence, unlawful use of a motor vehicle, and retail fraud. Throughout the interview, Mr. Smith went toe-to-toe with his questioners, shouting as much at officers as they were shouting at him. Smith has not shown that his circumstances made him susceptible to having his will overborne, or that his will was, in fact, overborne by police coercion. Accordingly, Smith cannot show that his waiver of his rights was involuntary and his confession should not be excluded on this basis.

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Referring to Miranda rights as a formality does not jeopardize the waiver

In Chaffin v. State (October 15, 2013) the District Court of Appeal of Florida, Fourth District, ruled that minimizing the advisement of the Miranda rights by referring to them as formality did not render the defendant's waiver of his rights involuntary.

"We agree with Chaffin that the interviewing detectives tried to minimize the significance of his Miranda rights by referring to them as a "formality." ... However, this in itself is not dispositive. The key inquiry when reviewing the admissibility of a post-Miranda statement is whether "the waiver of the Miranda rights was voluntary, knowing, and intelligent and whether the statements made after the waiver were voluntary."

In Ross, the Florida Supreme court set forth a comprehensive review of the law surrounding Miranda rights. It explained that not all statements given post- Miranda are voluntary, depending on the circumstances. One factor which may negate the voluntariness of a statement is if the police downplayed the significance of the Miranda rights. ... However, this is only a factor if the Miranda rights were tardily administered.

Here, there was no delay in the administration of Chaffin's Miranda rights. Further, despite the detective's comments, the videotape reflects that Chaffin understood and voluntarily waived his rights. He was read his rights in a normal cadence, acknowledged that he understood his rights several times, and appeared to have read over his rights before signing a form acknowledging his waiver.... Thus, we hold that Chaffin voluntarily waived his rights and the trial court correctly denied Chaffin's motion to suppress on the minimization of Miranda issue.

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What level of intoxication renders a confession inadmissible?

In Smith v. Commonwealth (September 2013) the Supreme Court of Kentucky held that the defendant's intoxication at the time of the police interview did not render statements to the police unknowing, unwilling or involuntary. In reaching their decision the court stated the following:

"Generally speaking, no constitutional provision protects a drunken defendant from confessing to his crimes. "The fact that a person is intoxicated does not necessarily disable him from comprehending the intent of his admissions or from giving a true account of the occurrences to which they have reference.

"However, there are two circumstances in which a defendant's level of intoxication might play a role in the suppression decision. First, intoxication may become relevant because a "lesser quantum" of police coercion is needed to overcome the will of an intoxicated defendant....Thus, trial courts must consider a defendant's level of intoxication when considering whether police coercion has overborne a defendant's will so as to render the confession involuntary for purposes of the Due Process Clause.

"Second, a confession may be suppressed when the defendant was "intoxicated to the degree of mania" or was hallucinating, functionally insane, or otherwise "unable to understand the meaning of his statements." ... quoting Marshall & Steiner, The Confessions of a Drunk, 59 ABAJ 497 (1973)) ("[W]hen intoxication reaches the state in which one has hallucinations or 'begins to confabulate to compensate for his loss of memory for recent events'... the truth of what he says becomes strongly suspect.").

"Neither of these exceptions is applicable here. First, there was no evidence of coercive influence by the police. All of the evidence tended to show that Appellant freely and knowingly accompanied the police to the headquarters for the express purpose of submitting to questioning about his alleged participation in the shooting. In addition, the record discloses that Appellant was read his Miranda rights at the beginning of the station interview, and that he signed a waiver form reflecting that he understood these rights and was voluntarily waiving them for the express purpose of the interview. Therefore, the first exception does not apply. It is well-established that no constitutional violation may occur in the absence of state-sponsored coercion.
"Further, a review of the interrogation discloses that Appellant was not so intoxicated to the degree of mania, hallucinations, or functional insanity. There is no basis to conclude that the interview should have been suppressed on the basis that Appellant was so intoxicated that his statement was inherently unreliable."

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Invocation of defendant's children as a method to get a confession ruled not coercive

In State v. Arriaga-Luna (August 2013) the Supreme Court of Utah reversed the lower court's decision that the defendant's confession was coerced because of the interrogating officers' "invocation of Mr. Arriaga-Luna's children as a method to get a confession." From their opinion the Supreme Court stated the following:

"As the U.S. Supreme Court has long held, "certain interrogation techniques, either in isolation or as applied to the unique character of a particular suspect, are so offensive to a civilized system of justice that they must be condemned," and confessions resulting from them are inadmissible.... Threats or promises render a confession involuntary if, in light of the totality of the circumstances, they overcome a defendant's free will.

In Lynumn v. Illinois ... and United States v. Tingle... the defendants' confessions were held to have been coerced because the interrogating officers made threats regarding the defendants' children. The police officers in Lynumn encircled a single mother and told her that she would not see her children again unless she admitted to being a drug dealer.... The officers also told Lynumn that her children's government assistance would be withdrawn unless she confessed.... The U.S. Supreme Court held that the threats regarding Lynumn's children, viewed in light of her lack of experience with criminal law and lack of counsel, overcame her free will and produced an involuntary confession....

In Tingle, the Ninth Circuit held more broadly that "[w]hen law enforcement officers deliberately prey upon the maternal instinct and inculcate fear in a mother that she will not see her child in order to elicit 'cooperation,' they exert ... 'improper influence' "... police interrogated a young mother who was suspected of bank robbery and told her that she "would not see [her] child for a while if she went to prison."

Although we recognize that the intense loyalty and emotion present in most parent-child relationships does provide an opportunity for coercion, we do not adopt any per se rule regarding the effect of references to a defendant's children on the voluntariness of a confession. The ultimate test in any case involving the voluntariness of a confession is whether the defendant's will has been overcome under the totality of the circumstances.

The detectives appealed to Mr. Arriaga-Luna's love for his daughters in three primary ways. First, during the initial interview Detective Arenaz told Mr. Arriaga-Luna, "You're not gonna see [your children]. You're ... you're gonna be locked in prison the rest of your life." We have held that officers may not threaten a harsher punishment if a defendant does not confess or promise a lighter punishment if the defendant does confess.... Here, Detective Arenaz made the statements while attempting to coax Mr. Arriaga-Luna to implicate his brother or say that the killing was accidental--not while persuading him to confess to murder. Furthermore, these statements were not improper threats because Mr. Arriaga-Luna in fact faced prison time if found guilty of murder, and separation from one's children is a natural consequence of being in prison. Detective Arenaz did not suggest that Mr. Arriaga-Luna would be able to see his children only if he confessed.

Mr. Arriaga-Luna argues that Detective Arenaz's statement was a veiled, indirect threat that he must cooperate in order to see his children. We recognize that implicit threats can constitute psychological coercion and overcome a defendant's free will. However, here, the context of the detective's statement clarifies that the statements were not implicit threats but rather factual communications that if Mr. Arriaga-Luna implicated his brother and his brother was found to be the sole murderer, Mr. Arriaga-Luna would not "be locked in prison for the rest of [his] life." Similarly, if the killing were entirely accidental, Mr. Arriaga-Luna would likely be set free. We also note that Mr. Arriaga-Luna did not confess during this interview, which suggests that the officer's statements did not overcome his free will....

In the second interrogation two days later, Detective Hamideh employed the false-friend technique. Among other things, Detective Hamideh told Mr. Arriaga-Luna, "But yes, I can bring resources there so that [your daughters] can be educated and break the cycle here."

When defendants are concerned for the safety and welfare of their families, law enforcement can inform defendants of public and charitable resources. However, officers should limit themselves to factual statements and not imply that aid for defendants' families is contingent on a confession. Here, Detective Hamideh strayed close to the line by making a personal offer to help Mr. Arriaga-Luna when he said "I can bring resources." However, it is clear from the full transcript that the officer made the statement about resources in response to Mr. Arriaga-Luna's inquiry about what would happen to his daughters, and not in exchange for a confession.

Detective Hamideh also urged Mr. Arriaga-Luna to "give [your daughters] hope that yes, I did what I did.... And I am going to take the time, until--until that point.... And after that point--'Girls. We are going to be together.' But free." Detective Hamideh also told Mr. Arriaga-Luna, "I think that their daddy--their daddy can say, 'Yes. I did make a mistake. But I have my dignity because I told the truth.' " Thus, the detective urged him to confess to earn the respect of his daughters.

Such appeals to a defendant's sense of morality and responsibility are usually non-coercive..... The totality of the circumstances show that Mr. Arriaga-Luna's free will was not overborne. Accordingly, the trial court erred in granting Mr. Arriaga-Luna's motion to suppress his confession. We reverse and remand for further proceedings consistent with this opinion.

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Interrogator's statements that defendant's ability to "speak plainly," "face-to-face" with his "case agent" would be of limited duration and, critically, would evaporate when "the lawyers [got] involved" should be avoided, but do not create a coercive environment

In US v. Shehadeh (August 2012) the US District Court, E.D. New York, found that the investigator's statements to the defendant that his ability to "speak plainly," "face-to-face" with his "case agent" would be of limited duration and, critically, would evaporate when "the lawyers [got] involved" should be avoided, but were not coercive. In their decision the court stated the following:

"Essential to review are statements made to Shehadeh regarding his consultation with counsel, especially those of Agent Tinning. Tinning candidly admitted--and his contemporaneous notes confirm--that in the course of explaining the right of a suspect in custody to have an attorney with him during questioning, Tinning told Shehadeh his ability to "speak plainly," "face-to-face" with his "case agent" would be of limited duration and, critically, would evaporate when "the lawyers [got] involved." ... This followed discussion of cooperation and took place during, not after, the advice of rights. Defendant argues that, under the totality of the circumstances, this statement--followed by AUSA Kazemi's "explanation" of the legal process--fundamentally misrepresented his rights and coerced him into waiving them because these statements suggested any opportunity to cooperate was conditioned on doing so before "the lawyers get involved."

There is, as case law teaches, a line separating tolerable deception from unconstitutional coercion.... ("Ploys to mislead a suspect or lull him into a false sense of security that do not rise to the level of compulsion or coercion to speak are not within Miranda's concerns."); ..... Yet, Tinning testified, in no uncertain terms, that he juxtaposed Shehadeh's ability to attain a presumable benefit, namely, to ask questions and "speak plainly" to the agent in charge of his case, with a decision not to exercise his Fifth Amendment right to ask for a lawyer. Making matters worse, Agent Tinning advised defendant of this purported "choice" during the initial advisement of Miranda rights, straying from a rote but plain recitation of them....

... Here, on the other hand, Shehadeh received technically proper warnings and there is nothing in the record suggesting that any of the agents or AUSA Kazemi here attempted to divert Shehadeh from exercising his constitutional rights. Where the ice is thin was the truthful advice that continued one-on-one conversations with investigating agents would not occur once Shehadeh was represented by counsel, practically an ipse dixit. That is a far cry from Wysinger, where the actual advice of rights was incorrectly--and misleadingly--worded, and Anderson, where the defendant was told he would forever forego the opportunity to cooperate if he requested the advice of counsel.

Surely, while not crossing the line as defendant protests, Agent Tinning's brief, one-time commentary about the "effects" of asking for a lawyer during post-arrest, custodial interrogation comes as close to the line demarcated by Anderson as possible. This is especially true in light of the subsequent appearance of AUSA Kazemi, whose in-custodial speech made clear that Shehadeh's fundamental choice was between cooperation and conviction. Unlike in Anderson, however, the Court finds that, under all the circumstances, Tinning's commentary was neither false nor misleading. Specifically, since Agent Tinning's colloquy with Shehadeh was actually true and was not misleading ( i.e., he never told Shehadeh that "cooperation" leading to a better result for him was not possible if he asked for a lawyer), it does not support a finding of undue coercion.

Under the totality of the circumstances, the Court is satisfied that Shehadeh's waiver of his Fifth Amendment rights was based on full, accurate and nonmisleading advice explaining those rights, was voluntary and was with a full awareness of the consequences of his waiver. The interrogation process employed, however, leaves much to be desired. It was fraught with constitutional and other legal pitfalls. It is to be avoided. Nonetheless, on the totality of the circumstances, the Court finds the government has proved by a preponderance of the evidence that Shehadeh's waiver was uncoerced, knowing and voluntary.

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