2016 VT 110
By Elizabeth Kruska
Four admissions, two chats with probation officers, one interlocutory appeal. No partridges, no pear trees, just admissions. This opinion is long, which means my summary is also long. Let’s go.
Mr. Powers was on furlough for a sexual assault conviction. Furlough is a community-supervision status that’s like house arrest. It’s a lot like being in jail but at home. Someone on furlough is going to be subject to pretty intense supervision. Usually a furloughee has to provide a daily schedule of his or her whereabouts, often has to submit to GPS monitoring, and has frequent visits with his or her supervising officer or PO. Furlough is more rigorous than is probation supervision (generally speaking).
Mr. Powers was on furlough for five years when in 2014 his PO learned that Mr. Powers was possibly engaged in behavior that would violate his furlough and would probably be a new crime. The point of community supervision is to be rehabilitative and to steer the person into a law abiding life. Mr. Powers had been supervised by the same PO for five years and they had a good working relationship. The PO was clear that he wanted Mr. Powers to feel he could talk to him so they could address any issues.
So, when the PO got a call telling him that Mr. Powers had drilled holes in the walls of his apartment so that he could peep through and look at his underage next door neighbor, every kind of alarm bell went off for the PO. The PO and a community corrections officer (CCO) went over to Mr. Powers’s home. They knocked on the back door and were let in. They asked him to sit on the couch while a search was conducted. One of the officers found holes drilled into the wall.
At this point, the PO asked Mr. Powers if he had anything to tell him, and Mr. Powers made the first of several admissions. Mr. Powers said he “screwed up” and admitted to drilling the holes. At that point the PO handcuffed Mr. Powers and told him he was taking him in to custody. When someone is on furlough and violates the terms of a furlough agreement (I’m making an assumption that this alleged behavior is a violation of those terms), the PO can bring the person into custody. The furloughee is entitled to an administrative hearing thereafter, but there are no court proceedings for furlough violations.
There was a police officer investigating next door at the other apartment. While Mr. Powers was handcuffed but still in his own home, the police officer came over and interrogated him. Mr. Powers admitted wrongdoing during this interrogation.
The PO and CCO took Mr. Powers down to the probation office, where he was to be processed and then taken to jail. He was put in leg restraints and shackles. The PO initiated conversation number 3 with Mr. Powers, and they discussed the events at the apartment that happened that day. Mr. Powers went a step further and admitted not only drilling the holes, but also looking through them so he could see the next door neighbor. He admitted seeing her naked and in her underwear and that he fantasized about her.
Then the PO called the police, who came to the probation office where they interrogated Mr. Powers, collecting confession number 4. Mr. Powers got charged with thirteen counts of voyeurism and one count of stalking, and was arraigned the next day.
Mr. Powers moved to suppress all his admissions, as they were made without proper warning pursuant to Miranda v. Arizona. The trial court held a hearing and suppressed all four statements. The State sought interlocutory appeal relative to the two sets of statements made to the PO, but not with respect to the statements made to the police officers. SCOV hears argument, and reverses the trial court with respect to both statements made to the PO but for two different reasons.
SCOV notes in a footnote that the statements made by Mr. Powers to the police were suppressed but are not subject of the appeal. We’ll set those aside in the “we don’t need to talk about this” basket.
With respect to the first statement, Mr. Powers argued below that his statement needed to be suppressed because he had not received a so-called Miranda warning. The trial court agreed.
SCOV disagrees. When SCOV reviews a motion to suppress, it’s got two different things to examine: findings of fact and conclusions of law. As always, SCOV is going to review the facts for obvious or clear errors—they weren’t there and they’re going to give deference to the trial court judge who heard the evidence and could see the witnesses. With respect to the questions of law, SCOV reviews de novo. It’s a mixed question. The phrase “mixed question” always reminds me of parts of Jonathan Franzen’s The Corrections where a particular character only ever wants to eat mixed grill (here’s a fabulous dramatic reading of such a passage). If you’d like to make mixed grill, here’s a good guide.
Delicious grilled meats and vegetables aside, SCOV hones in on the legal question at hand: was Mr. Powers entitled to a Miranda warning? Here’s when someone is entitled to a warning: when the person is in custody and is subject to interrogation or its functional equivalent. Nobody here disagrees about the interrogation part. The disagreement is about custody.
What makes custody? There’s a three-step inquiry. First, the court has to look at the circumstances surrounding the interrogation. Based on those facts, second, would a reasonable person under those circumstances have felt free to leave? Third, and this is a newer part, do the circumstances have the same inherently coercive pressures as if the person was being questioned in a “station house” or police station? This makes sense, given the evils the United State Supreme Court sought to correct with its ruling in Miranda: preventing police from using an overly coercive environment to get suspects to confess without being told they don’t have to confess.
This is a long opinion, so I’m going to cut to the chase. SCOV dives into a Miranda analysis, starting with the custody question. With respect to the first statement, SCOV says that Mr. Powers was not in custody under the three-prong analysis.
Sure, he’s on furlough, which in and of itself puts a greater restriction on his liberty, generally. But that’s not enough to create custody in terms of Miranda. The question is whether at the time of questioning, the person was in a custodial situation, and whether that situation was like the traditional “stationhouse questioning” situation articulated in Miranda. SCOV says no. Now, that’s not to say that someone being questioned in his or her own house isn’t subject to a pressured or coercive environment. That definitely happens. That just didn’t happen here. Mr. Powers was made to sit on his couch while he talked to his PO. This is someone he’d known for years. The PO wasn’t armed, and wore regular clothes. They sat together on the couch and in response to a question phrased along the lines of, “Is there anything you should tell me?” Mr. Powers confessed to his behavior. SCOV can’t find that this is “police-dominated atmosphere” such that the confession required a Miranda warning, and that without the warning it would be inadmissible.
Furthermore, there’s precedent to indicate that if it’s just the probation officer doing some questioning of a probationer, Miranda warnings are not required. This is because the purpose of probation is generally rehabilitation, and the probationer and officer generally have a different relationship than do a suspect and police officer. A probation relationship is not meant to be adversarial (although, let’s be real, sometimes it can be), and the questioning that happens between a PO and a probationer is usually not done in a police-dominated environment. Requiring probation officers to Mirandize probationers would create an adversarial relationship that could stand in the way of the goal of rehabilitation.
Bearing all this in mind, SCOV reverses the first statement made by Mr. Powers to the PO and says it is admissible. I’m thinking if the facts were different—if the police officer was present during the PO’s questioning, or if it came out that the PO was there at the direction of the police to gather a confession, there might be a different result.
Moving on to the second statement, SCOV reverses this, but remands for greater findings. By the time Mr. Powers made his second statement, he was at the probation office and may or may not have been in more-significant physical restraints. At some point he also went outside with the PO so he could have a cigarette. SCOV finds that the record was a little unclear about when Mr. Powers made his statements relative to when he was placed in restraints and/or went out for a smoke. SCOV can’t make a decision about whether Miranda would have been needed or not based on the facts before it.
Justice Skoglund dissents, and is joined by Justice Robinson.
She doesn’t think this was a routine questioning situation at all, and based on the facts would have upheld the trial court’s decision. First of all, she’s quick to point out that at the time of his statements, Mr. Powers was on furlough, not probation. The cases cited by the majority refer to probation and also point out that a criminal defendant does not lose his or her Fifth Amendment right against self-incrimination just because he or she is on probation.
It stands to reason that a furloughee would know that he or she would very likely be immediately re-incarcerated for a violation of furlough conditions. Indeed, Mr. Powers had had four prior furlough violations, including one where he was put back in jail. He was subject to very strict conditions, including that he had to allow pop-in warrantless searches. The PO also had the power to restrict Mr. Powers’s movements, including making him sit on the couch during the search and subsequent conversation. Furthermore, if he decided not to talk to the PO, he could have been arrested and taken into custody for failing to participate in the conversation.
He wouldn’t have felt free to leave. Even though this was in Mr. Powers’s own home, he had to do what he was told, including to sit on the couch, otherwise he could be in trouble for failing to comply. Nobody told him he didn’t have to talk, and given his circumstances, he likely would not have felt he could refuse or end the interview.
SCOV compared this case a lot to a SCOTUS case called Minnesota v. Murphy, where the defendant made incriminating statements about committing a murder in response to questioning by his probation officer. The dissent finds Murphy and this case to be different enough that it should not guide the result as much as the majority concluded it should. SCOV has previously found that even in a probation setting, a defendant can’t be forced to incriminate himself without getting immunity from criminal prosecution.
The dissent doesn’t find it at all credible that the PO wanted to know information about Mr. Powers’s behavior before deciding to release him. Let’s be real a second, for just a millisecond. This is a guy who was on furlough for a sex crime and who was actively being investigated for drilling holes so he could peep on his underage next door neighbor. This guy wasn’t going home after his trip to the probation office; he was going to get held and charged with new crimes. When he made his second statement to his PO he had been removed from his home, may have been wearing shackles and leg irons and had already been questioned once by the police. The Dissent reasons that the second PO interview was custodial and unwarned as well and should not be admissible in a criminal proceeding.