Category Archives: Miranda

Pre-Arrest Silence & Business Records Exceptions to Hearsay Rule

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In State v. Magana, the WA Court of Appeals held (1) the Fifth Amendment is not an obstacle to the State’s introduction of a suspect’s pre-arrest silence as evidence of guilt, and (2) the State failed to lay a proper evidentiary foundation for the Lineup ID Report, however, the erroneous admission of the document was harmless error.

Sergio Magana Jr., an adult, met met fourteen-year-old Y.L. through Facebook. After exchanging text messages, Y.L. and Mr. Magana made plans to meet at Y.L.’s home. Mr. Magana wanted to be alone with Y.L. When the day they planned to meet arrived, Mr. Magana went inside Y.L.’s home and forcibly raped her. Not long after leaving, Mr. Magana texted and told Y.L. not to mention his name and to delete all of their text messages because her “age scared him.”
After approximately two weeks, Y.L. reported Mr. Magana’s conduct to the police. Y.L. identified Mr. Magana from a photo lineup and submitted her phone so text messages could be extracted. The police then began looking for Mr. Magana.
After about six weeks, Mr. Magana made contact with the police and spoke to a detective over the telephone. During the call, Mr. Magana arranged to meet with the police. However, he never showed up for his appointment. About a month later, Mr. Magana finally met with a police detective in person. He was advised of his Miranda rights and acknowledged that he had indeed met Y.L. over Facebook, but he denied having intercourse. Mr. Magana was charged with one count of third degree rape of a child. Following a mistrial and then a second trial, he was found guilty by a jury and sentenced by the trial court. Mr. Magana appealed.
1. PRE-ARREST SILENCE.
On appeal, Mr. Magana argued the jury should not have known about his failure to appear for his initial police interview. He claims this was an improper comment on his right to silence, in violation of the Fifth Amendment to the United States Constitution.
However, the Court of Appeals reasoned that the rule from the  United States Supreme Court’s Salinas v. Texas holds that the Fifth Amendment is not an obstacle to the State’s introduction of Mr. Magana’s pre-arrest silence as evidence of guilt. Furthermore, although Washington State’s Constitution typically provides more protections than the U.S. Constitution, “this is not an area where our state’s constitution affords greater protection than the federal constitution.”
Consequently, the Court of Appeals reasoned Mr. Magana was not under arrest or any sort of police custody. They said his scheduled police interview was voluntary, and to the extent Mr. Magana’s failure to appear for the interview was relevant, the State was entitled to present this evidence.
PHOTO LINEUP EVIDENCE.
Also on appeal, Mr. Magana argued the State’s photo lineup exhibit was hearsay and admitted into evidence without proper foundation. However, the State argued that the exhibit was a properly authenticated business record.
The Court reasoned that under RCW 5.45.020 and ER 803(6), a document may be admitted as a business record as long as a witness testifies to the document’s identity and mode of preparation, and explains that the document “was made in the regular course of business, at or near the time of the act, condition or event.”
Here, the exhibit at issue consisted of three pages. The first page is an array of six hand-numbered photos, one of which depicts Mr. Magana. The second page is entitled “Lineup ID Report,” which is a computer-generated report that documents biographical information, including dates of birth, for the six individuals depicted on the photo array. The third page is a copy of the written admonishment form Y.L. signed prior to reviewing the photo array.
However, The Court of Appeals reasoned that during the photo identification process, Y .L. failed to review the second page of the report. Also concerning was that at trial, no witness testimony was presented regarding the creation of the Lineup ID Report included on page two.
For these reasons, and because no foundation was laid for the Lineup ID Report, it was improperly admitted as a business record. Nevertheless, and given the entirety of the evidence, the erroneous inclusion of the Lineup ID Report was harmless error which did not impact the jury’s verdict.
The Court of Appeals affirmed Mr. Magana’s convictions, but remand to the trial court for resentencing.

Protective Sweeps of Homes

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In State v. Chambers, the WA Court of Appeals decided (1) the police’s “protective sweep” of the defendant’s home was improper because the defendant was arrested outside his home and the officers did not have specific facts that other armed individuals might be inside the defendant’s home, and (2) the defendant’s 3.5 Motion to Suppress statements made to police was rightfully denied because police scrupulously honored the defendant’s Fifth Amendment invocation of his right to remain silent.

In this case, defendant Lovett Chambers was drinking at the Feedback Lounge, a neighborhood bar in West Seattle that he frequented. Chambers was a convicted felon of African-American descent who moved to Seattle in 1989, worked in the construction industry, obtained degrees in computer science and started an IT business. In 1992, he got married and later purchased a house in West Seattle with his wife. A few years later, Chambers asked his wife to buy him a Colt .45 caliber semiautomatic handgun. She did so, apparently unaware that he was a convicted felon.

On the night of the incident, Mr. Chambers had numerous drinks at the Feedback Lounge. He carried and concealed his .45 pistol.   At some point, two Caucasian men entered the bar and began drinking. The gentlemen did not know Mr. Chambers. Later, all of the gentlemen departed the bar simultaneously and walked to their respective vehicles which were parked nearby each other in the parking lot.

For reasons unknown, words were exchanged between Chambers and the two gentlemen, who apparently uttered racial epitaphs to each other, Mr. Chambers, or both. One of the gentleman – Michael Travis Hood – pulled a shovel from his vehicle; apparently to defend himself from Mr. Chambers. However, Chambers shot Mr. Hood three times with his .45 pistol. Chambers walked away, got into his car and drove home in his BMW.

Mr. Hood died from lethal gunshot wounds to his back.

Seattle police arrested Chambers at his home at 10:49 p.m. Officer Belgarde read Chambers his Miranda rights at 10:51 p.m. Chambers smelled of alcohol. He was “swaying,” had trouble balancing, slurred his words, and was argumentative. Officer Galbraith drove Chambers to the precinct. Officers obtained a warrant to search Chambers’ home and seized a loaded .45 caliber handgun, a spare magazine, and the BMW keys. The police impounded the BMW. Later, officers interrogated Chambers and obtained numerous incriminating statements regarding the shooting.

The State charged Chambers with murder in the second degree of Hood while armed with a deadly weapon. Chambers asserted a claim of self-defense. Before trial, Chambers filed a CrR 3.6 motion to suppress the evidence seized from his house and the statements he made. The court denied the motion to suppress the evidence seized from the house. The court concluded the police “were authorized to enter the house to conduct a protective sweep to ensure their safety.” The court also denied the motion to suppress Chambers’ statements to police and reasoned his “right to remain silent was scrupulously honored” under Michigan v. Mosley.

The jury found Chambers guilty of the lesser-included offense of manslaughter in the first degree. By special verdict, the jury found Chambers was armed with a firearm at the time he committed the crime. The court imposed the low-end standard range sentence of 78 months plus the mandatory consecutive 60-month firearm enhancement. Chambers appealed.

  1. Evidence Seized from the House Was Obtained Through a Unlawfully Conducted “Protective Sweep,” However, The Trial Court’s Decision to Deny Chambers’ Suppression Motion Was Harmless Error.

Chambers contends the court erred in denying his motion to suppress the evidence the police seized from his house: the Colt .45, a magazine clip with .45 caliber bullets, and the keys to the BMW.

The Court of Appeals reasoned that the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution prohibit a warrantless search and seizure unless the State demonstrates that one of the narrow exceptions to the warrant requirement applies. One recognized exception to the warrant requirement is a “protective sweep” of the home. The court further reasoned that under Maryland v. Buie the U.S. Supreme Court describes a protective sweep as a limited cursory search incident to arrest and conducted to protect the safety of police officers or others.

The Court of Appeals decided the trial court erred in concluding the police had the authority to conduct a protective sweep of Chambers’ house. First, a warrantless search of “spaces immediately adjoining the place of arrest” without probable cause or reasonable suspicion does not apply when the police arrest an individual outside his home.

Here, the undisputed facts do not support the warrantless entry and protective sweep of the kitchen under Buie and the court erred in denying the motion to suppress:

“The record does not support the conclusion that there were “articulable facts” that the kitchen harbored “an individual posing a danger.” The police had information that only Chambers shot Hood and was alone when he drove away. The findings establish the only individual in the house when police arrested Chambers was his spouse. The front door was open after the arrest and the police could see Sara was sitting on the living room couch watching television and remained in the living room.”

However, the Court of Appeals also ruled that the verdict would have been the same absent the trial court’s error. Chambers testified he acted in self-defense when he shot Hood with the Colt .45. Chambers admitted that he parked his BMW in front of the Beveridge Place Pub on January 21, that he kept a .45 caliber gun under the passenger seat of the BMW, and that he used the Colt .45 to shoot Hood near Morgan Junction Park. For these reasons, the trial court’s decision to deny Chamber’s motion to suppress was harmless error.

2. Chamber’s Incriminating Statements Are Admissible.

On appeal, Mr. Chambers asserts the detectives did not “scrupulously honor” his Fifth Amendment right to remain silent. The court reasoned that the Fifth Amendment provides, in pertinent part, “No person shall be . .. compelled in any criminal case to be a witness against himself.” In Miranda v. Arizona, the Supreme Court adopted “procedural safeguards” to protect the privilege and held that before questioning an individual in custody, the police must clearly inform the suspect of the following:

That he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.

Here, the Court of Appeals decided that because the circumstances leading up to the police’s interview with Chambers show the police scrupulously honored Chambers’ right to cut off questioning, the court did not err in denying the motion to suppress the statements Chambers made.

The Court of Appeals reasoned that the record shows the police advised Chambers of his Miranda rights at 10:51 p.m. when he was arrested on January 21. Chambers stated he understood his rights and unequivocally said he did not want to talk to the police. The record establishes the police did not “ask the defendant any questions or persist in repeated efforts to wear him down or change his mind after he invoked his rights.” After he invoked his right to remain silent at 10:51 p.m. on January 21, the police did not question Chambers while at police headquarters. And while driving to Harborview to obtain a blood draw at 3:07 a.m. on January 22, the detectives did not ask Chambers any questions.

Nonetheless, on the way to Harborview, Chambers said he did not want to talk about what happened. While at Harborview, Chambers seemed to have “sobered up.” When they left Harborview approximately 45 minutes later, Detective Steiger advised Chambers of his Miranda rights again. Chambers stated he understood his rights and did not invoke the right to remain silent.

With that, the Court of Appeals concluded the undisputed facts support the conclusion that the right to cut off questioning was scrupulously honored.

The Court affirmed the jury verdict.

My opinion? The police should have advised Mr. Chambers of his Ferrier warnings, a topic which I have blogged many times. Ferrier warnings must be given if police officers seek to enter the home to conduct a warrantless search for evidence of a crime or contraband. Still, even if Ferrier warnings were given and Mr. Chambers denied the police entry into his home, his incriminating statements to police ultimately assigned harmless error to the unlawful search.

Holiday Drinking In The U.S.

Interesting article by Christopher Ingraham of the Washington Post discusses how data on total monthly alcohol sales in the United States carries a time-tested seasonal trend: the spikes in December of each year.

Clearly, the holidays are traditionally a time for boozing it up.

For example, the Department of Health and Human Services recently updated the official federal statistics on the percent of state residents ages 12 and older who drink at least once a month. Also, Ingraham’s article discusses how various direct and indirect measures of alcohol consumption, including breathalyzer data, Web searches for hangover relief and alcohol-related traffic deaths all suggest that peak American drinking happens between Thanksgiving and New Year’s.

THE NORTHEAST

New England is home to the nation’s heaviest drinkers – New Hampshire, where about 64 percent of residents age of 12 or older drink monthly, is tops in the country. Vermont, Maine and Connecticut also come in at drinking rates above 60 percent. Hard-drinking cheeseheads in Wisconsin see to it that their home is the only Midwestern state in the top tier of American drinkers.

THE NORTHWEST

Ingraham discusses how the next tier of heavy drinking states are all in the northern part of the country. Some researchers posit that there may be a relationship between heavy drinking and latitude. At the country level, alcohol consumption tends to increase the farther you get away from the equator. This could be a function of the potential for boredom and depression during winter months when the nights are long and the days are short. For a prime example of this, see recent stories involving alcohol and misconduct among people who live in Antarctica.

RELIGIOUS STATES

Ingraham discusses other cultural factors affect some States’ attitudes about drinking. On the map above, take a look at Utah and particularly Idaho. They’re in the bottom tier of the states for drinking frequency. Utah, where only 31 percent of adults drink in a given month, comes in dead last. This is almost certainly because of the large Mormon populations in those states — 58 percent of Utahans are Mormon, as are 24 percent of people in Idaho. Mormonism generally prohibits the use of alcohol and other drugs.

There’s likely a similar religious influence in places Alabama, Mississippi and the other Southern states where drinking is low. Those states have large evangelical Christian populations, many of whom are abstainers.

HOLIDAY DUI PATROLS IN WASHINGTON STATE

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Coincidentally, the Washington State Patrol announced its increased Holiday DUI Patrol campaign of “Drive Sober Or Get Pulled Over.” Our State Troopers are extremely proactive in reaching their Target Zero goal of zero traffic fatalities by 2030.

Also, our local police and sheriff’s offices are working very hard responding to incidents of domestic violence, burglary, assault and other criminal incidents associated with holiday celebrations.

SEEK COMPETENT LEGAL REPRESENTATION IF YOU FACE CRIMINAL CHARGES THIS HOLIDAY SEASON.

For many, the holiday season is a joyous time when family and friends get together and celebrate. Naturally, our holiday merriment could involve the libations of alcohol and/or legal (and illegal) drugs.

We must enjoy the holidays safely and responsibly. Unfortunately, incidents of domestic violence, DUI, and other criminal behaviors – intentional or otherwise – can dampen our holiday festivities.

It’s never desirable to face criminal charges which could negatively affect your life for years to come. However, if you, friends or family find themselves in situations involving law enforcement, jail and/or criminal charges then contact the Law Office of Alexander Ransom as soon as possible.  I staunchly defends my clients’ constitutional rights to a fair trial, just proceedings and the suppression of evidence involving unlawful searches, seizures and self-incrimination. My practice involves saving people’s careers and reuniting families by seeking reductions and dismissals of criminal charges when appropriate.

Happy holidays!

-Alex Ransom, Esq.

The Neurology of Risky Driving Behavior

A very interesting article from the Association for Psychological Science discusses how a team of Canadian psychological scientists is looking at the personality, cognitive, and neurobiological factors that contribute to reckless driving behavior. By better understanding the patterns of emotional processing and risk perception shown by repeat offenders, the researchers hope to design interventions that more effectively target these subgroups of dangerous drivers.

The evidence certainly exists. According to the article, drunk driving accounts for 35-40% of all driver fatalities in Canada and the United States, and drunk driving crashes kill more than 10,000 Americans every year. Amazingly, an estimated 30% of DUI offenders will continue to drink and drive, even after being arrested and punished.

“Surprisingly, these drivers usually don’t consider themselves as risk takers,” lead author Thomas G. Brown of McGill University said. “If drivers don’t believe they are risky, they will not accept the need to change. On the other hand, if we and they don’t understand their behavior, how can they be expected to change it effectively?”

The study began when Brown and his colleagues recruited four groups of male drivers who had different criminal histories: 36 men with at least two convictions for drunk driving (DUI group); 28 reckless drivers with at least three speeding violations in the past two years (speeders); 27 men with arrests for both DUI and speeding (DWI-speeders); and 47 low-risk drivers with no history of serious traffic offenses (control group).

According to the article, participants completed a battery of personality and impulsivity assessments, ranging from a Big Five personality measure to an executive control task that assessed their sensitivity to punishment and reward. Participants’ cortisol response, a hormonal reaction to stress, was measured by collecting saliva samples before and after they completed a timed mental arithmetic task previously shown to elicit stress.

Even more interesting, participants also completed a session of simulated driving that included driving on virtual highways, merging lanes, turning at intersections, and avoiding pedestrians.

The researchers found that different subgroups of risky drivers had distinctive neurobiological profiles. Compared to the low-risk control group, speeders were prone to making decisions based on thrill-seeking and a need for high levels of stimulation. Repeat DUI offenders, in contrast, had the lowest level of risk-taking behavior while sober.

“One possibility in line with the present results is that once heavy drinking has occurred, more impulsive drivers are more vulnerable to alcohol’s disruptive effects on the behavioral control mechanisms required to avoid DWI,” the researchers explain.

All of the dangerous driving groups exhibited significant blunting in their cortisol stress response compared with the control group. Cortisol, along with other stress hormones, influences cognitive processes that range from risk assessment to encoding emotional memories. These results suggest that dysregulation of the body’s cortisol response could act as a neurobiological marker for risky driving behavior.

“Relative to the other [risky driving] profiles considered here, the profile exhibited by group DUI may be the most amenable to interventions that aim to augment recall of the negative consequences of DUI behavior and pre-emptively decouple alcohol use from driving,” the researchers conclude.

Stated differently, interventions designed to improve drivers’ recall of the negative consequences of drinking and driving are effective for preventing drunk driving. This explains the findings why repeat DUI offenders had the lowest level of risk-taking behavior while sober.

My opinion? The study is interesting, for sure. Not surprisingly, the criminal justice system uses many of these these psychological deterrents to “decouple alcohol use from driving.” When it comes to DUI cases, gaining a worthwhile reduction of the charges often means the defendant obtaining an alcohol/drug evaluation, attending mandatory treatment, attending AA meetings and attending a Victim Impact Panel. Additionally, the financial costs of DUI fines and mandatory ignition interlock devices are constant reminders to DUI offenders that future risky behavior is simply not worth it.

That said, hiring a competent DUI attorney to fight DUI charges might be a worthy endeavor. The basic legal issues surrounding a DUI arrest are (1) whether the stop was lawful, (2) whether there was enough evidence to arrest, (3) whether the officer informed the defendant of Implied Consent Warnings, and (4) whether the defendant either (a) refused the BAC breathalyzer machine or (b) blew over .08 and/or had .05 nanograms of active THC in their blood when pulled over.

If you’re charged with DUI, the best advice is to immediately contact a competent DUI defense attorney to discuss your case. Good luck!

Bellingham Police Department Body Cameras Now Mandatory

A news article by Samantha Wohlfiel from of the Bellingham Herald reports that starting this July, Bellingham Police Department (BPD) will require all uniformed patrol officers to wear and use body cameras.

In 2014, the BPD started a voluntary program, allowing officers to use a body camera if they were willing. Now, Police Chief Cliff Cook has decided all uniformed patrol officers will need to wear the cameras while on duty:

“I think the original pilot and then the past year and a half … has shown us that having the videos is not only beneficial in cases of prosecution of individuals for crimes, as evidence of the actions of our officers, especially when they’re appropriate . . .  It also generally helps us resolve disputes or disagreements about what may have transpired between an officer and a citizen much more quickly and in a more definitive way.”

~Police Chief Cliff Cook

Initially, 18 officers volunteered for Bellingham’s program, and currently 34 officers are using the cameras, Cook said. He also mentioned that his police officers have noted that people often change their behavior for the better when they’re told they’re being filmed.

One of the main concerns for officers and community members has been privacy, Cook said:

“One of the concerns we talked about was the overriding concern about creating video of individuals in pretty personally trying situations that involve personal privacy, such as mental illness, or a domestic violence call in a private residence, or interviewing the victim of a crime. So there are provisions within the policy where officers are given discretion on whether they want to turn that camera on or not.”

~Police Chief Cliff Cook

Basically, the “policy” requires that officers turn on the cameras for any enforcement activity, an arrest, use of force or where they believe there will be the need to use force.

The department has a mix of cameras, some that are clipped on a lapel, others that are worn on glasses, but both have easily been knocked off in situations where officers were restraining someone, Cook said, so the department may shift toward other models.

Between 2014 and 2016, the total program cost has been $315,250, which includes things such as all hardware (the cameras, clips, glasses they sit on, etc.), software and docking stations, Cook told the council.

According to the article, the projected costs moving forward are about $35,000 to $56,000 per year each of the next two years for renewed data storage management.

Another concern was, of course, privacy:

“One of the concerns we talked about was the overriding concern about creating video of individuals in pretty personally trying situations that involve personal privacy, such as mental illness, or a domestic violence call in a private residence, or interviewing the victim of a crime. So there are provisions within the policy where officers are given discretion on whether they want to turn that camera on or not.”

~Police Chief Cliff Cook

The current policy requires that officers turn on the cameras for any enforcement activity, an arrest, use of force or where they believe there will be the need to use force.

My opinion? This is a step in the right direction. Body cameras make everyone behave better. They also catch evidence of what really transpired. Good move, BPD.

State v. Cherry: Consent & Self-Incrimination

In State v. Cherry, the WA Court of Appeals Division II decided that a police officer’s questions to the passengers of a vehicle – which were intended to determine whether one of the passengers could safely remove the defendant’s car from the scene – were routine booking questions and did not violate the defendant’s Fifth Amendment rights.

Defendant Mathew Cherry was arrested for driving with a suspended license. He was driving two passengers. When the police officer asked Cherry to confirm who was in the car, Cherry identified his two passengers. When asked whether either passenger could take the car, Cherry responded that neither had a license and that he did not know anyone who did. The officer told Cherry that his car would be impounded.

Cherry consented to a search of his car. A pipe containing methamphetamine residue was found. When Cherry was booked into jail, he resisted a strip search and apparently swallowed the contents of a small pouch after it was seen between his legs.

The State charged Cherry with Unlawful Possession of a Controlled Substance and Tampering With Evidence. Cherry filed a CrR 3.6 motion to suppress the evidence found in his car, arguing that the officers threatened to have his car impounded if he did not consent to its search and that his consent was coerced. The trial court also conducted a CrR 3.5 hearing in which Cherry challenged the admission of his statements to police. At trial, a jury found Cherry guilty as charged. He appealed.

Ultimately, the Court of Appeals upheld Cherry’s convictions. Here, the officer’s questions to Cherry’s passengers were not intended to and did not elicit incriminating information. Rather, the questions were intended to determine whether Cherry’s car could be safely removed from the scene.

Additionally, the court disagreed with Cherry’s arguments that officers were not permitted to ask for consent to search his car after he invoked his right to remain silent. Here, the officer informed Cherry of his Miranda rights before requesting Cherry’s consent to search the car. The court reasoned that the request for consent to search was not designed to elicit testimonial evidence and Cherry’s consent was not an incriminating statement. Therefore, law enforcement did not violate Cherry’s constitutional right to remain silent by requesting consent to search his car after Cherry had invoked that right.

Moreover, Cherry’s statements to police that he had consumed drugs earlier that day were admissible, and not made in response to any questioning likely to elicit an incriminating response. The court reasoned that even if Cherry’s statements were prompted by watching the police search his car, as Cherry now argues, they were not prompted by unlawful interrogation. There was no violation of Cherry’s right to remain silent. Therefore, his statements were properly admitted.

Finally, the court disagreed with Cherry’s arguments that his consent to search was not voluntary, and therefore, it violated the Fourth Amendment and the evidence found during the search is inadmissible. Here, under these facts, Cherry clearly consented.

For all of these reasons, the Court of Appeals affirm Cherry’s convictions.

State v. Mayer: Officer Gives Confusing Miranda Warnings

In State v. Mayer, the WA Supreme Court decided that a deputy sheriff inadequately advised the defendant of his Miranda rights when he initially told the defendant that a lawyer would be appointed for him prior to questioning if he could not afford one but also said that no lawyer would be appointed for him unless he was arrested, jailed, and taken to court.

Here, defendant Nicholas Mayer was suspected of robbing KC Teriyaki,  a casual restaurant in Salmon Creek, while the employees were closing the restaurant for the day. The masked gunmen pushed one of the employees inside the restaurant; pointed a gun at the employee; grabbed a bag from inside; and then fled with the bag, which contained cash from the day’s sales. The apparent motive for the robbery was because Mr. Mayer’s sister, Emily Mayer, was a disgruntled ex-employee.

Police stopped Mr. Mayer’s vehicle, detained Mayer and the vehicle’s other occupants, and transported them to the police station for questioning regarding the robbery. Deputy Tom Dennison of the Clark County Sheriff’s Office questioned Mayer in an interview room at the police station. Dennison began by reading Mayer his Miranda rights and asking if he could record the interview. Mayer initially waived his Miranda rights and agreed to the recording.Once recording began, Dennison again advised Mayer of his Miranda rights:

“You have the right to remain silent. Anything you say can be used against you in a court of law. You have the right at this time to talk to a lawyer and have him present with you while you are being questioned. If you cannot afford to hire a lawyer, one will be appointed to represent you before questioning if you wish. You can decide at any time to exercise these rights and not answer any questions or make any statements.”

This time, however, Mayer asked Dennison to clarify how he could obtain appointed counsel:

DEPUTY DENNISON: “Do you understand each of these rights as I’ve explained them to you?”

MR. MAYER: Yes. Um, If I wanted an attorney and I can’t afford one, what — what would — ?

DEPUTY DENNISON: If you wanted an attorney– you know, if you were charged with a crime and arrested, if you wanted an attorney and couldn’t afford one, the Court would be willing to appoint you one. Do you want me to go over that with you again?

MR. MAYER: Yeah, but how would that work? Will you be– how it– how I–

DEPUTY DENNISON: You’re not under arrest at this point, right?

MR. MAYER: Oh, okay. Okay.

DEPUTY DENNISON: So, if you were, then you would be taken to jail and then you’d go before a judge and then he would ask you whatever at that point, if you were being charged, you would afforded an attorney if you couldn’t hi — you know, if you weren’t able to afford one.

MR. MAYER: All right. I understand.

DEPUTY DENNISON: Understand?

MR. MAYER: Yeah.

DEPUTY DENNISON: Okay. So you do understand your rights?

MR. MAYER: Yes.

After this exchange, Mayer waived his Miranda rights, agreed to speak with Dennison regarding the robbery, and made incriminating statements. Mayer admitted, among other things, that on the day of the robbery he met with his sister Emily, who drove the getaway car, and John Taylor, the other robber; they drove to the teriyaki restaurant; Mayer entered the restaurant with Taylor; Taylor was armed with a handgun, and Mayer had a knife; Mayer told the employees “give me the money”; Taylor grabbed the deposit bag containing money; Mayer ran from the restaurant with Taylor; they were picked up by Emily; and Mayer split the proceeds of the robbery with Taylor.

Based on the confession, Mayer was arrested and charged with 11 criminal counts (later reduced to 10 counts), including Robbery in the First Degree. Mayer moved to suppress the incriminating statements he made during his interview with Officer Dennison, but the superior court denied the motion after a CrR 3.5 hearing.

The jury ultimately convicted Mayer on all 10 pending counts. The trial court sentenced Mayer to 306 months of imprisonment. The Court of Appeals unanimously affirmed the conviction and sentence in an unpublished opinion. The WA Supreme Court granted review on his Miranda challenge.

For those who don’t know, the explanation of Miranda rights must be given before any custodial interrogation, stemming largely from the Fifth Amendment privilege against self-incrimination.  The person detained and interrogated must be made aware of the right to remain silent, the right to consult with an attorney and have the attorney present during questioning, and the right to have an attorney appointed if indigent. Without a Miranda warning or a valid waiver, statements might be inadmissible at trial under the exclusionary rule (e.g., they cannot be used as substantive evidence of guilt in criminal proceedings). See Miranda v. Arizona, 384 US 436 (1966).

Here, the WA Supreme Court ruled that Mayer’s confession should have been suppressed. They reasoned that Officer Dennison’s linkage of Mayer’s right to appointed counsel to conditional future events (arrest, jail, charge, and arraignment) contradicted his earlier statements that Mayer could have access to appointed counsel “before questioning” and that he could exercise his rights “at any time.” Critically, Officer Dennison did not tell Mayer that despite the fact that no appointed attorney was immediately available, Mayer’s other Miranda rights remained in full effect and he could protect his right to the presence of counsel by remaining silent until he could speak to an attorney.

Under these circumstances, ruled the court, Officer Dennison’s explanation of Mayer’s rights was deficient, and the State has failed to meet its burden of establishing that Mayer knowingly and intelligently waived his rights. Mayer’s subsequent confession therefore should have been suppressed. However, the Court further reasoned that because any error in admitting the confession was harmless, the court affirmed Mayer’s conviction.

My opinion? Good decision. This Miranda advisement from the police officer was contradictory and confusing. The deputy should have clarified that the defendant was not obligated to respond to questions until he had the opportunity to confer with a lawyer. Again, good decision. Unfortunately for the Defendant, however, the WA Supreme Court also decided the error was harmless. In other words, he was still convicted of the charges and must serve his sentence.

State v. Linder: Unwitnessed Search is Unlawful

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In State v. Linder, the WA Court of Appeals Division III decided that evidence obtained pursuant to a search warrant was properly suppressed because the officer’s inventory of the search was not conducted with at least one witness.

Here, Defendant Aaron Linder was arrested by Kalama Police Chief Grant Gibson in March 2013 for driving with a suspended license. During the search incident to arrest, Chief Gibson found a small tin box inside the pocket of Mr. Linder’s hoodie. After being informed of his Miranda rights, Mr. Linder admitted being a daily user of hard drugs and that the tin box contained drug paraphernalia. But he refused to give his consent for Chief Gibson to open the box initially, and refused a second time at the police station.

The police obtained a search warrant. Sergeant Parker, without anyone else present, executed the warrant by opening the metal box and photographing and inventorying its contents. It was typical for the department’s night shift officer to work alone. The Kalama police department has a total of only five sworn officers.

Sergeant Parker inventoried the tin box as containing two pieces of aluminum foil, an empty plastic box, two plastic tubes, a hair pin, a safety pin, and a piece of plastic from a cigarette package. The cigarette wrapper contained a crystalline substance that appeared to be methamphetamine. After he finished the inventory and completed the return of service form, Sergeant Parker placed the items, a copy of his report, and a note for Chief Gibson in a temporary evidence locker.

The next morning, Chief Gibson, also acting alone, verified that the contents in the box matched Sergeant Parker’s inventory and field tested a small quantity of the cellophane wrapper and its contents, which tested positive for methamphetamine. He packaged the remainder of the crystalline substance for submission to the crime laboratory. Mr. Linder was thereafter charged with one count of Violation of the Uniform Controlled Substances Act, Chapter 69.50 RCW, for possession of methamphetamine.

Before trial, Mr. Linder moved to suppress the evidence found in the tin box on the grounds that it was searched in violation of CrR 2.3( d). The rule provides that a return of the search warrant shall be made promptly, shall be accompanied by a written inventory of any property taken, and-relevant here-that “the inventory shall be made in the presence of the person from whose possession or premises the property is taken, or in the presence of at least one person other than the officer.” In the suppression hearing that followed, both Sergeant Parker and Chief Gibson testified that they were unaware of the rule’s requirement that the inventory be made in the presence of another person.

The trial court granted Mr. Linder’s motion to suppress. The State appealed.

In reaching its decision, the WA Court of Appeals looked to the Exclusionary Rule In considering whether the contraband should be suppressed.

For those who don’t know, the Exclusionary Rule is a legal principle in the United States, under constitutional law, which holds that evidence collected or analyzed in violation of the defendant’s constitutional rights is sometimes inadmissible for a criminal prosecution in a court of law. The exclusionary rule may also, in some circumstances at least, be considered to follow directly from the constitutional language, such as the Fifth Amendment‘s command that no person “shall be compelled in any criminal case to be a witness against himself” and that no person “shall be deprived of life, liberty or property without due process of law”.

The Exclusionary Rule is grounded in the Fourth Amendment and it is intended to protect citizens from illegal searches and seizures. The exclusionary rule is also designed to provide a legal remedy and disincentive, which is short of criminal prosecution in response to prosecutors and police who illegally gather evidence in violation of the Fifth Amendment in the Bill of Rights compelled to self-incrimination. The exclusionary rule also applies to violations of the Sixth Amendment, which guarantees the right to counsel.

The WA Court of Appeals reasoned that Washington’s version of the Exclusionary Rule had three objectives:

First, and most important, to protect privacy interests of individuals against unreasonable governmental intrusions; second, to deter the police from acting unlawfully in obtaining evidence; and third, to preserve the dignity of the judiciary by refusing to consider evidence which has been obtained through illegal means.

Here, reasoned the Court, excluding the evidence served the third objective of preserving the dignity of the judiciary by refusing to consider evidence obtained through illegal means.  Here, a police officer’s unwitnessed late night execution of a search warrant in this case clearly violated CrR 2.3(d), called the reliability of his inventory into question, and could not be remedied other than by suppression.

My opinion? Great decision. Kudos to Division III for following the law.

State v. Rhoden: Illegal 2-Step Confession Violates Miranda

In State v. Rhoden, the WA Court of Appeals Division II held that the trial court failed to suppress Mr. Rhoden’s statements made to police during an improper two- step interrogation procedure.

The facts were such that on February 26, 2013, the Pierce County Sheriff’ s Department served a search warrant on a residence in Puyallup. Five occupants of the residence, including Rhoden, were handcuffed.

Two interrogations happened. The first interview happened when Deputy Olesen questioned the handcuffed occupants in the living room of the home. Importantly, he failed to advise the suspects of their constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).

For those who don’t know Miranda warnings (often abbreviated to “Miranda“, or “Mirandizing” a suspect) is the name of the formal warning that is required to be given by police in the United States to criminal suspects in police custody (or in a custodial situation) before they are interrogated, in accordance with the Miranda ruling. Its purpose is to ensure the accused are aware of, and reminded of, various rights under the U.S. Constitution, and that they know they can invoke them at any time during the interview.

At any rate, Mr. Rhoden told Deputy Olesen there were drugs and a gun in the bedroom.  At that point, Deputy Olesen then escorted Rhoden to the kitchen and questioned him a second time and after finally advising Rhoden of his Miranda rights.

During the post –Miranda second interview, Deputy Olesen asked Rhoden the same questions that he had asked Rhoden in the living room before giving the Miranda warnings.

Mr. Rhoden said there was about a gram of methamphetamine located in the dresser on the left side of his bed and that he had been smoking methamphetamine for approximately the last two to three months. During a search, officers found several items in a dresser, including ( 1) small baggies containing a substance later tested and confirmed to contain methamphetamine, (2) an electronic scale, ( 3) glass smoking devices, and (4) documents containing Rhoden’ s name and the address of the residence being searched.

 

Rhoden was charged with one count of Unlawful Possession of a Controlled Substance (Methamphetamine) under RCW 69.50.401. Before trial, the trial court conducted a CrR 3. 5 hearing to determine the admissibility of Rhoden’ s statements to police.

The trial court held that Rhoden’ s pre-Miranda statements to police were not admissible at trial and that his post -Miranda statements to police were admissible at trial. At trial, the jury found Rhoden guilty of the charges. Mr. Rhoden appealed his conviction.

The Legal Issue

 

On appeal, the legal issue was whether the Miranda warnings given to Rhoden during the second interrogation were effective to inform Mr. Rhoden of his Fifth Amendment right to keep silent when he had just provided the same incriminating information in the first interrogation for which he was not given Miranda warnings.

The Rule: Missouri v. Seibert

The court looked to Missouri v. Seibert, 542 U.S. 600, 604- 06, 124 S. Ct. 2601, 159 L. Ed. 2d 643 ( 2004) for guidance. In that case, the United States Supreme Court held that Miranda warnings were ineffective to inform the defendant of their right against self-incrimination in circumstances similar to these. As here, the warnings in Seibert were given only after the suspect had confessed during a custodial interrogation without Miranda warnings.

The Seibert Test

After reviewing Missouri v. Seibert, the court discussed the Seibert est. First, if a court determines that the use of the two- step interrogation procedure was deliberate, it then must ” determine, based on objective evidence, whether the midstream warning adequately and effectively apprised the suspect that he had a “genuine choice whether to follow up on his earlier admission.”

In making this determination, courts may consider whether any curative measures were taken to insure the suspect’ s understanding of his or her Miranda rights. Such curative measures may include a significant break in time and place between the pre- and post –Miranda questioning or an additional warning that the suspect’ s pre –Miranda statements could not be used against the suspect in a subsequent criminal prosecution.

The court compared the Missouri v. Seibert case to Mr. Rhoden’s facts. It reasoned that similar to Rhoden’s situation, the interrogating officers in Seibert questioned the defendant without Miranda warnings yet later gave Miranda warnings in a second interview before obtaining the suspect’ s confession without a significant break in time or place and without measures to assure the suspect that her non-Mirandized statements could not be used against her in a subsequent criminal prosecution.

Applying Seibert to the Facts

The Court then applied the two-part Seibert test the facts at hand. It reasoned that here, the police deliberately used the two- step interrogation procedure. During the initial interrogation in the living room before giving Miranda rights, Olesen asked the five handcuffed suspects whether there were any drugs in the home, and Rhoden admitted that he had a small quantity of methamphetamine in his bedroom. After completing his questioning of the group in the living room, Olesen escorted Rhoden to the kitchen, read Rhoden his Miranda rights, and repeated the same questions he had asked in the living room, to which Rhoden answered consistently with his responses given before receiving the Miranda warnings. Thus, reasoned the court, the objective evidence of “the timing, setting and completeness of the pre-warning interrogation, the continuity of police personnel and the overlapping content of the pre and postwarning statements” all support the conclusion that the two- step interrogation procedure used here was deliberate.

The court applied the second inquiry, which examined the effectiveness of the midstream Miranda warnings. In this inquiry, the question was whether any curative measures were present, such as a significant break in time and place between the pre- and post -Miranda questioning or an additional warning that the suspect’ s pre –Miranda statements could not be used against the suspect in a subsequent criminal prosecution.

Here, the evidence at the CrR 3. 5 hearing showed that there was not a significant break in time or place between the pre- and post -Miranda interrogation. Perhaps more importantly, the evidence also showed that Olesen did not take any additional measures to insure that Rhoden understood his Miranda rights, such as advising him that his pre –Miranda statements could not be used against him. Accordingly, the Court of Appeals held that the trial court erred by failing to suppress Rhoden’ s post –Miranda statements.

Failure to Suppress Rhoden’s Statements Was Not Harmless Error

Finally, the Court of Appeals decided that the trial court’s decision to not suppress Rhoden’s statements was not harmless error. It reasoned that constitutional error is harmless if the appellate court is convinced beyond a reasonable doubt that any reasonable jury would have reached the same result in the absence of the error. Here,  and under the circumstances, the Court of Appeals reasoned that it could not conclude beyond a reasonable doubt that any reasonable jury would have reached the same guilty finding absent evidence of Rhoden’ s challenged admissions.

My opinion? Excellent decision. The Court of Appeals acknowledged the subtle – and unlawful – “2-Part Inquiry” of the arresting officer in this case. This technique is commonly used by law enforcement to unlawfully obtain statements from defendants and simultaneously circumvent Miranda. Good work, Court of Appeals!

 

State v. Elkins: Officers Need Not Re-Advise Miranda in All Cases

In State v. Elkins, the WA Court of Appeals decided that whether the officers have scrupulously honored the defendant’ s right to silence and right to counsel under Miranda must be determined on a case -by -case basis, and that there is no bright-line rule requiring police officers to fully re-advise previously Mirandized suspects when reinitiating interrogation.

Yakima County deputies received a tip that defendant Eugene Elkins had killed his girlfriend Kornelia Engelmann. Yakima County deputies arrived and arrested him. He was advised of his Miranda rights. For those who don’t know, police officers must inform defendants of their Miranda rights once police place a defendant in custody and/or conduct investigations via questioning the defendant. The Miranda rights are stated as follows:

“You have the right to remain silent. 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 provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”

Miranda protects a defendant’s Fifth Amendment rights against self incrimination, and may incline defendants to stop talking and/or immediately seek the advice of an attorney. Once a defendant asserts their Miranda rights, the police MUST stop questioning the defendant. And, generally speaking, police must repeat and re-inform defendants of their Miranda rights if questioning continues at a later time; and/or defendants change their minds and want to speak to the police.

Here, at around 3;30 p.m., Yakima County deputies advised Elkins of his Miranda rights before arresting him. Elkins declined to make a statement, and the Yakima County deputies did not question him further. They took him into custody.

Later, the police again attempted to interview Elkins at about 8: 30 PM. Although they did not re-advise Elkins of his Miranda rights, police asked Elkins if he had been advised of these rights, if he remembered them, and if he understood those rights were still in effect. After Elkins confirmed that he recalled being advised of his Miranda rights and that he understood those rights were still in effect, Elkins agreed to talk to the deputies. In short, he informed the police that he and Ms. Engelmann had a verbal argument which led to a physical altercation.

When the deputies commented on the extensive bruising on Engelmann’ s body and asked Elkins if he had kicked her, hit her with something, or hit her with a closed fist, Elkins said that he did not want to talk to the deputies any longer and requested an attorney. The deputies ended the interview.

On June 7, the very next day, Elkins gave a full written statement to police after they re-advised him of his Miranda rights. In the statement, he admitted to killing Engelmann. Elkins was subsequently charged with Murder in the Second Degree.

The case proceeded to a jury trial. Before trial, Elkins moved under CrR 3.5 to suppress the statements he made to the police on June 6 and June 7. However, the trial court admitted all of Elkins’ statements. At trial, Elkins was found guilty of Murder in the Second Degree. He appealed his conviction to the WA Court of Appeals Division II.

In rendering its decision, the Court acknowledged that fully re-advising a suspect of his Miranda rights is clearly the best practice when resuming questioning of a suspect who has asserted his right to silence. However, the Court also said there is no bright-line rule that law enforcement officers must always fully re-advise a defendant of his or her Miranda rights. In addition, they said that the issue of whether a defendant’ s rights have been scrupulously honored must be determined on a case-by-case basis.

The Court further reasoned that under the totality of the circumstances, Elkins statements were not coercively obtained by police. The facts show that ( 1) the Yakima deputies ceased questioning Elkins immediately when he asserted his right to silence, (2) no law enforcement officer attempted to interrogate Elkins for a significant period of time, five hours, before his subsequent contact with the police, ( 3) no law enforcement officer engaged in any coercive tactics, and (4) the police did not interrogate Elkins until after they confirmed that he had been read his rights, that he recalled those rights, and that he understood those rights were still in effect. The court also said the following:

“[T]he subsequent interrogation is proper if the State has shown that the defendant knowingly and voluntarily waived those rights given the totality of the circumstances, not whether the subsequent contact was preceded by law enforcement fully re-advising the defendant of his or her Miranda rights. When this and the other factors . . . are met, the officers have scrupulously honored the defendant’ s rights.”

Finally, the Court of Appeals reasoned that Elkins’ June 6 waiver was knowing and voluntary under the circumstances. They also reasoned that his statements made during transport and June 7, 2014 statements were also admissible because Elkins initiated the relevant conversation following his assertion of his right to counsel and then knowingly and voluntarily waived his Miranda rights. The Court of Appeals upheld his conviction.

My opinion? My heart goes out to the victim’s friends and family. I sincerely hope they find comfort in the Court of Appeals’ decision. However, I disagree with the decision. When it comes to protecting people’s constitutional rights, bright-line rules work best. And its always been a time-tested rule that police MUST re-advise suspects of their Miranda rights, especially under circumstances like this.