Wednesday, February 6, 2013

Custody Battle


By David Rangaviz

State v. Tran, 2012 Vt. 104

I probably don’t need to tell you what the Miranda rights are.  Since 1966, the American public has had this list of rights imprinted on their brains by years of police procedurals and action movies.  Ask a non-lawyer to spout off the list and they’ll jump right into their best Andy Sipowicz impression: “You have the right to remain silent, and anything you say can and will be used against you in a court of law.  You have the right to an attorney, if you cannot afford an attorney, one will be appointed for you.”

The Miranda decision, however, did not actually establish these rights.  Instead, Miranda created a prophylactic requirement that police officers must always tell you that you have these rights when they take you into custody, the logic being that the circumstances of interrogation are inherently coercive and involve pressures that compel a suspect to speak, such that a preliminary warning is necessary for adequate protection of the underlying rights.  Suspects should have an unfettered and informed choice between speech and silence.  Miranda protects this choice.


If police officers don’t give you the Miranda warning, they can’t question you.  Period.  If they question you anyway, and you make an incriminating statement, that statement cannot be used against you in court.  If they give you the warning and you invoke your rights (e.g., “I want to remain silent” or “I want a lawyer”), they must stop all questioning.  Again, if they don’t stop, any of your subsequent statements are inadmissible. 

Only after a full warning and proper waiver of rights can a lawful interrogation proceed, with any resulting admissions usable in court against the suspect.  Miranda thus provides a powerful constitutional limitation on police misconduct and coerced confessions. 

(When he’s done rapping about the 4th Amendment, Jay-Z really needs to lay down some rhymes about this.)

But this Miranda right to a warning comes with one critical caveat: Not every interaction with the police triggers the need for the warning.  An officer’s obligation to administer Miranda warnings attaches only when a person is in police custody.

As a result, the question of what “custody” means becomes a critically important issue.  If you are not in “custody” then the police do not have to give you the warnings, and can question you with impunity.  “Anything you say can and will be used against you” in court, even if you don’t know it (because you haven’t been given the warning).  In other words, an unwarned casual chat with the police can result in admissible evidence where an unwarned formal interrogation could not.

So what does “custody” mean?  Are you in custody when your neighbor, who happens to be a cop, comes by to ask for a spoonful of sugar?  Obviously not.  Are you in custody when the police break down your door, put you in handcuffs, and bring you to the police station?  Obviously yes.  Like most sets of facts, today’s case lies somewhere in the middle.

Even SCOV cannot reach a consensus about the meaning of “custody.”  By a vote of 3 to 2, the SCOV expresses deep disagreement over the legal standard applicable to determine when an individual is in police custody for the purposes of triggering the Miranda warning requirement. .

Here are the facts.

Defendant was believed to be the perpetrator of an assault and robbery.  On the case were two officers: one a ruthless rookie with a penchant for shoulder dislocation and the other an aging veteran who was “getting too old for this . . . stuff.” 

Sorry . . . in my mind I start to make all police teams look like Riggs and Murtaugh.

At any rate, the officer in the course of their investigation decided that they needed to interview the defendant, who was their main suspect.  Before interviewing the nineteen-year-old Defendant, the officers had already done some legwork, including getting statements from the victim and two witnesses.  From this information, the officers gathered the following facts: the assault occurred during a drug deal, two perpetrators were involved, one carried a gun, a baseball cap found at the scene “reportedly” belonged to Defendant, and one witness thought that the suspect without the gun was Defendant.

So the two detectives, dressed in plain street clothes, drove to Defendant’s house in an unmarked police car.  Defendant wasn’t home, but his mom said she was on her way to go pick him up.  The officers followed her.

When they arrived back, the officers again knocked on Defendant’s door and told him they wanted to talk.  Defendant invited the officers in, but they, in turn, invited Defendant out, asking him if he minded talking to them “out here for a little bit, so we have a little privacy.”  The officers then asked Defendant if maybe they could speak in their car, so they could be more comfortable.  Defendant sat in the front passenger seat.  The door was unlocked.  At no point did the detectives tell Defendant that he was free to leave.  (But they also never told him he was not free to leave.)

Piecing the sequence of events together from SCOV’s opinion and the dissent, the interview/interrogation proceeded as follows:

·         At the outset, Defendant professed ignorance, saying that he didn’t know why the officers wanted to speak to him.

·         The officers told Defendant that they’d spoken to the victim and some witnesses, that they knew something had happened and there was a fight, and that they wanted to give Defendant a chance to tell his side of the story.

·         The officers asked how Defendant had made contact with the victim, and Defendant told them that he had initiated with a phone call.  When Defendant then started giving vague and inconsistent answers, the officers told him that they “already have the answers to some questions” and already knew “how it went down and where it went down and all of that stuff.”

·         The detectives then asked: “Where’s the gun?”  When Defendant again feigned ignorance, the officers explained that guns could be dangerous, and asked if it was real or fake.  Defendant told them it was a fake, plastic gun, and that he didn’t know where it was.

*******

(I’ll tell you what these stars mean in about five short paragraphs.  Read on!)

By this time, only five minutes had passed.  Thereafter, the officers explained to Defendant that he could be charged with armed robbery even if he wasn’t holding the gun, and later directed him not to use his cellphone during the interview.  In response to the continued questioning, Defendant conceded that he had been at the scene, that he lost his hat while he was there, and (again) that the gun was fake.

The full interview lasted about an hour.  At the end, Defendant was arrested.  He was never given a Miranda warning.

There was only one issue in the case—was Defendant in “custody” during the entire interview, only during part, or never in custody at all?  If he was in custody, the failure to give him the warning would mean that all of his incriminating statements would have to be suppressed.  If not, then this was just the sort of casual police encounter before which no warnings need be given, and all of his statements are admissible in court.

The majority opinion, written by Justice Skoglund and joined by Justices Dooley and Robinson, concludes that Defendant was in custody during the entirety of the interview.  As a consequence, all of his unwarned statements are inadmissible.

The dissent, written by Justice Burgess and joined by Chief Justice Reiber, concludes that the interview started out as a non-custodial setting, and only became custodial at about the time of the **** notation above (i.e., right around the time the officers told him that they could arrest him for armed robbery).  As a result, the dissent would allow the admission of Defendant’s early statements (particularly, his admission that he knew about the gun and that it was fake), because he was not in custody when he made them.

Let’s start with the majority opinion, as that establishes binding law going forward.

Specifically hinging its decision on federal rather than state constitutional law, SCOV adopts an objective “free to leave” standard for custody questions.  According to SCOV, “[i]n the absence of a formal arrest, the critical question is whether law enforcement officials acted or spoke in a manner that conveyed the message that they would not permit the individual to leave.”

SCOV identifies a number of non-exhaustive factors that play into this analysis:

1.      Whether the police tell the suspect that he is free to leave. (the “most important factor”)

2.      The location of the interview.

3.      The interviewer’s statements to the suspect of his belief in the suspect’s guilt.

4.      Whether the suspect is confronted with evidence of guilt.

5.      Whether the officers restrict the suspect’s freedom of movement.

6.      Whether the police use any “deceptive techniques” in conducting the interview.

7.      The degree to which the suspect was isolated from the outside world.

8.      The duration of the interview.

9.      Whether the police were armed.

10.  The number of officers present during the interview.

(Sorry about the length, but . . . nobody said criminal procedure was straightforward.)

According to the majority, these factors weigh in favor of Defendant being in custody during the entire interview. 

Let’s review: He was never told he could leave, the officers “from the outset” confronted Defendant “repeatedly” with the evidence of his guilt, his contact with the police was not voluntary, the interview took place in a small space with two officers in close proximity, the interview lasted for an hour, Defendant was isolated from his family, and the officers directed Defendant not to use his cellphone (“further cutting him off from contact with others and asserting their authority”).

Because “indicia of custody and police dominance” were present from the very outset of questioning, Defendant was in custody the entire time, and, thus, his unwarned statements—all of them—are inadmissible.

The dissent totally disagrees with the majority’s “free to leave” approach.  (Here’s the abridged version of the dissent’s response in video form.) 

As opposed to the majority’s “free to leave” standard, the dissent argues that federal law demands a more restrictive “formal arrest” custody standard: individuals are only in custody if they were “subjected to restraints comparable to those associated with a formal arrest.”

According to the dissent, the majority had turned the objective nature of the inquiry on its head by giving too much weight to the subjective intentions of the officers (who admitted that they were planning to arrest Defendant after the interview).  The majority should not consider what the officers thought, but only what they actually conveyed to Defendant.  By the dissent’s description, everything up to the point where the officers told Defendant that he could be arrested for armed robbery, the conversation “was all general and open-ended cajolery.”  It’s all good clean fun until someone threatens to arrest someone.

The dissent highlights that, although the officers never told Defendant he was free to leave, they also never told him he was not free to leave.  Defendant was never restrained, and only five minutes had passed before the Defendant made his statement about the fake gun.  The non-custodial interview only ripened into a custodial interrogation when the police told Defendant that he could be arrested for armed robbery.  Any statements thereafter should be inadmissible, but the earlier statement about the gun should be admitted.

After disposing of the case immediately before it, the dissent goes on the attack, saying that the majority’s “free to leave” approach is both inconsistent with federal law and will lead to incongruous results.  The best illustration of the distinction between the two standards is in circumstances where police restrict someone’s movement while conducting a vehicle search or executing a search warrant.  A reasonable person would not think they were free to leave, but they would have no reason to believe they were under arrest.  Any statements they made during the search would, by the dissent’s logic, have to be admissible.

So . . . who’s right?

In my view, the dissent is right on the law, but wrong on the policy.

As a matter of federal law—under which the majority expressly decided the case—the “formal arrest” standard appears fairly well settled.  Indeed, the U.S. Supreme Court has held that roadside questioning after a lawful traffic stop does not constitute “custody” so as to require the Miranda warnings, a classic situation in which one would not feel “free to leave” but would also not feel like a formal arrest had occurred.  The federal standard, by the Supreme Court’s own repeated description, asks whether the restraint of the individual is like “formal arrest.”  In case after case, this is the federal standard.  In the words of the Supreme Court: “Our cases make clear . . . that the freedom-of-movement test identifies only a necessary and not a sufficient condition for Miranda custody.”  The dissent is undeniably right on its reading of federal law.

But both opinions are underwhelming on another front—there is absolutely no normative discussion about what the standard for custody should be.  Neither the majority nor the dissent argues that their respective standards are better as a matter of legal policy.  Both simply cite an amalgam of case law, claim the mantel of their standard as correct, and plow ahead with its application.

So … what should the standard be?

Whether by accidental omission or tacit design, the majority gets the policy right.  Since Miranda, the Supreme Court has mutated the “custody” question into a “formal arrest” inquiry, but Miranda itself speaks only of an individual who “has been taken into custody or otherwise deprived of his freedom of action in any significant way.”  This sounds more like a “free to leave” standard than a “formal arrest” standard.  Fidelity to Miranda requires a “free to leave” standard.

Beyond its language, Miranda’s motivating purpose also favors the majority’s position.  Remember that the “custody” distinction is meant to distinguish interrogations that contain compelling pressures from those that do not.  Warnings are only required in circumstances where the coercive nature of the setting would seemingly compel a suspect to speak.  Formal arrests are not the only context in which police exercise coercive control over individuals in their company.  If a person does not feel “free to leave,” then by definition the police have exercised some amount of control over that individual.  In the face of such control, Miranda dictates that warnings be given.

Indeed, the interview in this case was rife with the indicia of coercion that Miranda itself relied upon.  Citing interrogation manuals, the SCOTUS of Miranda noted that suspects are often isolated in unfamiliar surroundings (check) and deprived of outside support (check) while police exude confidence of their guilt (check), appear only interested in confirming certain details (check), and direct questions at only the reasons why the suspect may have committed the act (check).  It’s almost as though the officers in this case were reading from Miranda’s description of the coercive interrogation playbook.  This is a paradigmatic case calling for Miranda protection.

The dissent errs in waiting for overwhelming indicia of custody before requiring the warnings.  At that point, it is simply too late for warnings to be effective.  Both sides agree that Defendant was in custody during the interview; disagreement arises only over exactly when he was in custody.  But the purpose of the warnings is to apprise a defendant of his rights before an interrogation begins.  Warnings are to be given when compulsion is at its nadir.  Otherwise, the coercive pressure of interrogation could taint any waiver of rights.

For this reason, we should err on the side of over-inclusiveness rather than under-inclusiveness in deciding the custody question.  Obviously, as evidenced by the ten-factor test set out above, this is an ambiguous, fact-specific area of law.  But if the Miranda warnings are required in a broader range of cases, officers will likely err on the side of caution and provide warnings even where perhaps they would not be strictly required.  This provides the benefit of both ensuring protection of the rights to silence and counsel if they are invoked, and minimizing the chance of suppression at a later trial if not.  This may, of course, also result in the loss of some pre-trial confessions from admissible evidence, but this is a cost that Miranda itself contemplated and permitted.

So . . . there’s a clear divide between established federal law and correct legal policy.  What could SCOV have done about it?

It is important to remember that the federal constitution supplies only a floor, not a ceiling, on the level of protection afforded to citizens.  States have their own constitutions which include many, if not all, of the same rights as the federal constitution.  Thus, by applying their own state constitutions, state supreme courts are empowered to provide additional constitutional protection for any given right if they feel that the federal standard falls short.

That’s what the majority should have done here.  In this area, the federal standard—embodied by the dissent’s opinion—is inadequate.  But the majority’s construction of federal law to reach its result is equally flawed; it is a dishonest reading of federal precedent.  The majority should have adopted a new rule of state constitutional law incorporating the more protective “free to leave” standard.  Having done so, the dissent would then have been robbed of much of the teeth of its criticism of the majority’s position (which only highlighted the majority’s inconsistency with federal law and did not at all argue that the majority’s position was bad policy).

This approach would also free up SCOV to depart from other deficiencies of federal law on the scope of the Miranda rights, particularly the ease with which the SCOTUS has held that a suspect can waive his rights and the difficulty of adequately invoking the rights.  Although the majority reached the correct result, its rationale means that Vermont law remains tethered to a flawed line of federal precedent.  And there is no way to be sure this decision will stand; because it was decided under federal law, it still has the potential to be reversed by the SCOTUS.

Of course, whether the Miranda warnings actually work—i.e., individuals understand the warnings and feel empowered to act upon them—is a question for another day.  But when the SCOV disagrees with federal law, it should be forthright and justify its decision to depart as a matter of state law rather than feign fidelity to an inferior federal standard.  As it stands, SCOV did the right thing for the wrong reasons, and exposed itself to possible reversal in the process.

Ok.  That’s all I have to say.  I’m getting too old for this … stuff.

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