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.”
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.
Comments
Post a Comment