section 6: criminal procedure

College of William & Mary Law SchoolWilliam & Mary Law School Scholarship Repository

Supreme Court Preview Conferences, Events, and Lectures

2003

Section 6: Criminal ProcedureInstitute of Bill of Rights Law at the William & Mary Law School

Copyright c 2003 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository.https://scholarship.law.wm.edu/preview

Repository CitationInstitute of Bill of Rights Law at the William & Mary Law School, "Section 6: Criminal Procedure" (2003). Supreme Court Preview.164.https://scholarship.law.wm.edu/preview/164

https://scholarship.law.wm.edu/

https://scholarship.law.wm.edu/preview

https://scholarship.law.wm.edu/events

https://scholarship.law.wm.edu/preview

In This Section

CRIMINAL PROCEDURE

NEW CASE: 02-1060 Illinois v. Lidster

Synopsis and Question Presented 171

Justices Weight Police Roadblocks in Crime Probes; FairnessOf Unrelated Arrests at Issue before Supreme CourtDan Rozak 179

Lombard Case Could Affect Police RoadblocksRobert Sanchez 180

Ruling Draws Line on Police Use of RoadblocksPatrick J. Cotter 182

Factions Take Different Paths to Assess RoadblockPatrick J. Cotter 186

A Better Interpretation of "Special Needs" Doctrine AfterEdmond and FergusonJonathan Kravis 190

NEW CASE: 02-6320 Fellers v. United States


High Court to Revisit Miranda; Issue Pits Officers vs. AccusedA.J. Flick 199

Inmate Takes Case to High Court without Lawyer; The U.S.Supreme Court Will Revisit Miranda in an Ex-Nebraskan's AppealRobynn Tysver 201

It's All in the Timing/Police Should Lean Toward IndividualRights When Question SuspectsOpinion 203

Dickerson v. United States: Miranda is Deemed a ConstitutionalRule, but does it really Matter?Conor G. Bateman 204

168

NEW CASE: 02-1183 United States v. Patane


Justices Take Case on Scope ofMirandaCharles Lane 219

Common Sense and Miranda RightsEditorial 221

Will the High Court Revisit 'Miranda'- Again?Tony Mauro 223

The Exclusionary RuleMiles Clark 225

NEW CASE: 02-1371 Missouri v. Seibert


High Court Orders Retrial for Woman Who Wasn't Read RightsDavid Lieb 240

New Clamor on Right to Silence MirandaAndrea Siegel 242

Right Against Self-Discrimination - Consecutive ConfessionsHarvard Law Review 245

NEW CASE: 02-1019 Arizona v. Gant


Court Agrees to Look at Police Search RulesAP Newswire 257

The Supreme Court, Criminal Procedure and Judicial IntegrityStephen A. Saltzburg 258

Discretionary Warrantless Searches and Seizures and the FourthAmendment: A need for Clearer GuidelinesJennifer Ison Cooke 262

NEW CASE: 02-809 Maryland v. Pringle


169

High Court to Review Traffic Stop 276Anne Gearan

Without a Warrant, Probable Cause, or Reasonable Suspicion:Is There any Meaning to the Fourth Amendment While Driving a Car?Chris K. Visser 277

NEW CASE: 02-811 Groh v. Ramirez


Liability in Searches is DebatedDavid G. Savage 285

NEW CASE: 02-473 United States v. Banks


Supreme Court to Consider Police SearchGina Holland 295

In The Ninth We TrustMilton Hirsch and David Oscar Markus 297

Why Knock? The Door Will Inevitably Open: An Analysis ofPeople v. Stevens and the Michigan Supreme Court's DepartureFrom Fourteenth Amendment ProtectionRobin L. Gentry 299

NEW CASE: 02-9410 Crawford v. Washington


ALSO THIS TERM

02-6683 Castro v. United StatesSynopsis and Question Presented 310

02-8286 Banks v. CockrellSynopsis and Question Presented 310

02-964 Baldwin v. ReeseSynopsis and Question Presented 311

170

2-1060 Illinois v. Lidster

Ruling Below: (Ill., 202 Ill. 2d 1, 779 N.E.2d 855, 72 Crim. L. Rep. 79)

Roadblock at which vehicles were stopped, without suspicion, for purpose of finding leads aboutcrime that had occurred in same area approximately one week earlier violated FourthAmendment as interpreted in Indianapolis, Ind v. Edmond, 531 U.S. 32, 69 U.S.L.W. 4009(2000); evidence of drunk driving discovered in stop at roadblock must be suppressed.

Question Presented: Does Indianapolis, Ind v. Edmond prohibit police officers fromconducting checkpoint organized to investigate prior offense, at which checkpoint lawenforcement officers briefly stopped all oncoming motorists to hand out flyers about - and lookfor witnesses to - offense, under circumstances in which checkpoint was conducted exactly oneweek after - and at approximately same time of day as - offense, and checkpoint otherwise metreasonableness standard articulated in Brown v. Texas, 443 U.S. 47 (1979)?

PEOPLE of the State of Illinois, Appellant,V.

Robert S. LIDSTER, Appellee.

Supreme Court of Illinois

Decided October 18, 2002.

[Excerpt; some footnotes and citations omitted]

Justice FREEMAN delivered the opinion of thecourt:

Following a bench trial, the circuit court of DuPage County convicted defendant of drivingunder the influence of alcohol (625 ILCS 5/11-501(a)(2) (West 1996)). The appellate courtfound that the roadblock where the policearrested defendant did not comply with theconstitutional standards set forth in City ofIndianapolis v. Edmond, 531 U.S. 32, 121 S.Ct.447, 148 L.Ed.2d 333 (2000). Accordingly, theappellate court reversed defendant's conviction.319 Ill.App.3d 825, 254 Ill.Dec. 379, 747N.E.2d 419. We granted the State's petition forleave to appeal (177 Ill.2d R. 315(a)), andallowed the Illinois Association of Chiefs of

Police to file an amicus curiae brief in supportof the State. For the reasons that follow, weaffirm the judgment of the appellate court.

BACKGROUND

On August 30, 1997, the Lombard policedepartment set up a roadblock on North Avenuein Lombard, Illinois. A police officer stoppeddefendant at the roadblock and directed him to aside street where another police officer haddefendant perform several field-sobriety tests.Defendant failed a number of the tests and wastaken into custody.

Defendant was subsequently charged with theoffense of driving under the influence of

171

alcohol. He filed a motion to quash his arrestand suppress evidence. At the hearing on themotion, Detective Ray Vasil testified thatLieutenant Glennon, third in command at theLombard police department, authorized theroadblock. The purpose of the roadblock wasto obtain information from motorists regarding ahit-and-run accident that took place one weekearlier, at the same location, and at the sametime of day. In particular, the police wantedinformation regarding a Ford Bronco or full-sized pickup truck implicated in the accident.

The Lombard police department has a generalorder regarding the use of roadblocks. Theorder, however, does not contain guidelinesregarding the use of roadblocks to obtaininformation from crime witnesses. Theroadblock at issue was not videotaped. Further,the police did not publicize the roadblock.

Between 6 and 12 police vehicles participated inthe roadblock. Detective Vasil wore an orangereflective vest with the word "Police" on it, andstood between the eastbound lanes of NorthAvenue, 15 feet from the roadblock. A line ofcars formed at the roadblock. As each vehiclepulled up to Detective Vasil, he handed a flyerto the driver of the vehicle requestinginformation regarding the accident. Becausedefendant's Mazda minivan almost hit him,Detective Vasil requested defendant's driver'slicense and insurance card. Detective Vasilsmelled alcohol on defendant's breath andnoticed that defendant's speech was slurred.Detective Vasil directed defendant to a sidestreet where Detective Roy Newton haddefendant perform several sobriety tests.

The trial court denied defendant's motion.

At defendant's subsequent bench trial, DetectiveNewton testified that he was assigned to thecorner of North Avenue and Craig. His dutieswere to ensure that drivers did not skirt theroadblock and to provide help to the officers in

the event they experienced any problems withthe vehicles or drivers stopped at the roadblock.The officers at the roadblock directed severalcars, including defendant's vehicle, to DetectiveNewton's location. At Detective Newton'srequest, defendant produced a driver's licenseand insurance information. Detective Newtonthen had defendant perform several sobrietytests and placed defendant under arrest.

The court found defendant guilty of drivingunder the influence of alcohol. The courtsentenced defendant to one year of conditionaldischarge and required that defendantparticipate in counseling, complete 14 days inthe "Sheriffs Work Alternative Program," andpay a fine of $200.

ANALYSIS

As noted above, the appellate court relied onEdmond, 531 U.S. 32, 121 S.Ct. 447, 148L.Ed.2d 333, in finding the roadblock at issueinvalid. In Edmond, the United States SupremeCourt invalidated checkpoints set up by thepolice on Indianapolis roads in an effort tointerdict unlawful drugs. Initially, the Courtobserved:

"The Fourth Amendment requires that searchesand seizures be reasonable. A search or seizureis ordinarily unreasonable in the absence ofindividualized suspicion of wrongdoing. Whilesuch suspicion is not an 'irreducible' componentof reasonableness [citation], we have recognizedonly limited circumstances in which the usualrule does not apply....We have also upheld brief, suspicionlessseizures of motorists at a fixed Border Patrolcheckpoint designed to intercept illegal aliens,Martinez- Fuerte, [428 U.S. 543, 96 S.Ct. 3074,49 L.Ed.2d 1116 (1976) ], and at a sobrietycheckpoint aimed at removing drunk driversfrom the road, Michigan Dept. of State Police v.Sitz, 496 U.S. 444[, 110 S.Ct. 2481, 110L.Ed.2d 412] (1990)." Edmond, 531 U.S. at 37,

172

121 S.Ct. at 451-52, 148 L.Ed.2d at 340- 41.

The Edmond Court concluded that theIndianapolis checkpoints were invalid, stating:

"The primary purpose of the Indianapolisnarcotics checkpoints is in the end to advance'the general interest in crime control,' [citation].We decline to suspend the usual requirement ofindividualized suspicion where the police seekto employ a checkpoint primarily for theordinary enterprise of investigating crimes. Wecannot sanction stops justified only by thegeneralized and ever-present possibility thatinterrogation and inspection may reveal that anygiven motorist has committed some crime."Edmond, 531 U.S. at 44, 121 S.Ct. at 455, 148L.Ed.2d at 345.

In the present case, the appellate court held theroadblock at issue invalid under Edmond Theappellate court noted "that the roadblock'sostensible purpose was to seek evidence of'ordinary criminal wrongdoing.' "319 Ill.App.3dat 828, 254 Ill.Dec. 379, 747 N.E.2d 419. Thecourt concluded "[t]his is the type of routineinvestigative work that the police must do everyday and does not justify the extraordinary meanschosen to further the investigation." 319Ill.App.3d at 828, 254 Ill.Dec. 379, 747 N.E.2d419.

The State asserts that Edmond is distinguishablebecause the roadblock at issue had a specificpurpose of assisting the authorities in solving acrime that had already been committed and wasknown to the police. Thus, police efforts werenot directed at general crime control. Unlike inEdmond, the Lombard police department did notseek to interrogate and inspect motorists toferret out evidence that the motorists themselveshad committed crime that was as yet unknown

to police. Defendant was only subjected tofurther investigation because he narrowlymissed hitting an officer in the area wherevehicles were stopped.

The State's interpretation of Edmond isincorrect. First, as the Court reaffirmed inEdmond, the general rule is that "a search orseizure is ordinarily unreasonable in the absenceof individualized suspicion of wrongdoing."Edmond, 531 U.S. at 37, 121 S.Ct. at 451, 148L.Ed.2d at 340.. Certainly the Lombardroadblock does not fall within the scope of thelimited exceptions heretofore approved by theSupreme Court.

Second, the Court in Edmond was keenly awarethat an exception for roadblocks "designedprimarily to serve the general interest in crimecontrol" would abrogate the general rulerequiring individualized suspicion ofwrongdoing. See 4 W. LaFave, Search &Seizure § 9.6 (3d ed. Supp.2002). Accordingly,the Court drew a bright line that when theprimary purpose of a roadblock is general crimecontrol, the roadblock is unconstitutional. TheCourt explained:

"Without drawing the line at roadblocksdesigned primarily to serve the general interestin crime control, the Fourth Amendment woulddo little to prevent such intrusions frombecoming a routine part of American life."Edmond, 531 U.S. at 42, 121 S.Ct. at 454, 148L.Ed.2d at 344.

In the case at bar, the State ignores the concernsexpressed by the Court in Edmond In spite ofthe clear admonishment in Edmond against theuse of roadblocks to advance "the generalinterest in crime control," the State requests thatwe allow a roadblock for precisely that purpose.

Third, the State finds a distinction between

173

gathering information leading to the arrest andprosecution of a motorist as the perpetrator of acrime, and gathering information from amotorist leading to the identification of anothermotorist as the perpetrator of a crime.According to the State, gathering informationleading to the arrest and prosecution of amotorist as the perpetrator of a crime is a part ofgeneral crime control. However, the Statemaintains that gathering information from amotorist leading to the identification of anothermotorist as the perpetrator of a crime is notconsidered a part of general crime control.Taking the State's reasoning a step further, apolice investigation tool such as canvassing aneighborhood to find identification witnesses toa crime is not considered to be a part of generalcrime control. In the State's view, crime controlinvolves arresting the perpetrator directly; itdoes not involve gathering information leadingto the arrest of the perpetrator. We must rejectthis contention. In investigating and solving anycrime, police efforts are directed at generalcrime control. This holds true whether thepolice happen upon the perpetrator of the crimeat the roadblock or obtain information from aroadblock detainee identifying the perpetrator ofthe crime.

Lastly, an exception for informationalroadblocks has the potential to make roadblocks"a routine part of American life." Edmond, 531U.S. at 42, 121 S.Ct. at 454, 148 L.Ed.2d at 344.In 2000, 870 murders, 49,652 assaults, 25,168robberies, 77,947 burglaries, 306,805 thefts,55,222 motor vehicle thefts, and 2,899 arsonswere known by police to have been committedin Illinois. J. Fitch, 2001 Illinois StatisticalAbstract 764 (16th ed.2001). [...] Should thepolice have been allowed to set up roadblocks toobtain information from potential witnesses foreach murder? What of a robbery, an aggravatedcriminal sexual assault, an arson or any otherserious crime? According to the State, for aperiod of at least a week after each crime, policecould set up roadblocks with the specific

purpose of making inquiries of persons whowere possibly witnesses to a crime. Thetroubling specter then arises that the streets ofCook County, or at least the streets of Chicago,would be adorned with roadblocks, an outcomeclearly unacceptable under Edmond

Amicus suggests that exigent circumstancesjustified the use of the roadblock. Amicusasserts that police needed to act quickly tocontact possible witnesses or else risk losingvital information. The Court in Edmond leftopen the possibility that an emergency mayjustify a law enforcement roadblock. The Courtexplained:

"Of course, there are circumstances that mayjustify a law enforcement checkpoint where theprimary purpose would otherwise, but for someemergency, relate to ordinary crime control.[...]

The State and amicus fail in their attempts todistinguish Edmond Edmond clarifies that"[w]hen law enforcement authorities pursueprimarily general crime control purposes atcheckpoints such as here, * * * stops can onlybe justified by some quantum of individualizedsuspicion." Edmond, 531 U.S. at 47, 121 S.Ct.at 457, 148 L.Ed.2d at 347.

CONCLUSION

The laws of this state require that a motoristremain at the scene of an accident. In thepresent case, the motorist left the scene of theaccident. The police set up a roadblock to obtaininformation regarding the identity of themotorist. The goals of the police in doing so arelaudable.

This court is sympathetic to the efforts of thepolice in identifying the motorist involved in theaccident. Sympathy, however, does not justifythe roadblock at issue. As the Supreme Court

174

observed in Almeida-Sanchez v. United States,413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596(1973):

"The needs of law enforcement stand in constanttension with the Constitution's protections of theindividual against certain exercises of officialpower. It is precisely the predictability of thesepressures that counsels a resolute loyalty toconstitutional safeguards.[... ]

The right of an individual to be free fromunreasonable searches and seizures is anindispensable freedom, not a mere luxury. Itcannot give way in the face of a temporary needfor the police to obtain information regardingthe identity of the motorist at issue. As theprotector of the constitutional rights of allcitizens of this state, this court is commanded todraw a "line at roadblocks designed primarily toserve the general interest in crime control."Edmond, 531 U.S. at 42, 121 S.Ct. at 454, 148L.Ed.2d at 344. Without such a line, the fourthamendment will do little to prevent intrusivesearches and seizures from becoming a routinepart of American life. Edmond, 531 U.S. at 42,121 S.Ct. at 454, 148 L.Ed.2d at 344.

The judgment of the appellate court is affirmed.

constitutionally impermissible. Consequently,the majority abrogates the balancing test ofBrown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61L.Ed.2d 357 (1979), which is normally appliedin roadblock cases. For all of these reasons andas more fully explained below, I respectfullydissent.

1. Edmond Is Distinguishable and Is NotDeterminative

In Edmond, the Court considered theconstitutionality of an Indianapolis checkpointprogram that had as its primary purpose theinterdiction of illegal drugs. In contrast to the10 to 15 second stops in the present case, whichwere conducted for the sole purpose of handingout an informational flyer, the total duration ofthe stops in Edmond lasted between two andfive minutes. Moreover, unlike the roadblockhere, drivers in Edmond were asked to producea license and registration while an officerlooked for signs of impairment. The officer alsoconducted an open-view examination of thevehicle from the outside. Meanwhile, anarcotics-detection dog was walked around theoutside of the stopped vehicle. Thus, the nature,purpose, and scope of the roadblocks werecompletely different in the two cases.

Affirmed.

Justice THOMAS, dissenting:

The majority has misconstrued City ofIndianapolis v. Edmond, 531 U.S. 32, 121 S.Ct.447, 148 L.Ed.2d 333 (2000), by reading it toprohibit the type of roadblock at issue here.Edmond is factually distinguishable, and itslanguage does not condemn the strictlyinformational roadblock instituted by theLombard police department in this case.Additionally, I believe that the majorityerroneously creates a per se rule that roadblocksinvolving police canvassing for informationabout a specific, known crime are

In concluding that a checkpoint designedprimarily to catch drug offenders and interdictillegal narcotics violates the fourth amendment,the Edmond Court stated the following:

"We decline to suspend the usual requirement ofindividualized suspicion where the police seekto employ a checkpoint primarily for theordinary enterprise of investigating crimes. Wecannot sanction stops justified only by thegeneralized and ever-present possibility thatinterrogation and inspection may reveal thatany given motorist has committed some crime."(Emphasis added.) Edmond, 531 U.S. at 44,

175

121 S.Ct. at 455, 148 L.Ed.2d at 345.

... I believe that the majority improperly relieson the first sentence in the above-quotedpassage from Edmond and disregards the secondsentence, which, modifying the first, plainlyproscribes checkpoints for the purpose ofexposing unknown crimes to the police. . . .Instead, I would find that absent either exigentcircumstances or a sufficient relationship tohighway safety or border concerns, Edmondcategorically prohibits only checkpoints whoseprimary purpose lies in discovering that thesubjects of the seizure have committed somecrime (Edmond, 531 U.S. at 43-44, 121 S.Ct. at455, 148 L.Ed.2d at 345)....

Here, the roadblock at issue had a specificpurpose of assisting the authorities in solving acrime that had already been committed and wasknown to the police. Thus, police efforts werenot directed at general crime control within themeaning of Edmond Unlike in Edmond, theLombard police department did not seek tointerrogate and inspect motorists to ferret outevidence that the motorists themselves hadcommitted a crime that was as yet unknown topolice. The present defendant was subjected toinvestigation only because his erratic drivingnearly resulted in his collision with an officer inthe area where vehicles were stopped forpurposes of handing out flyers. Once theofficers witnessed defendant's erratic driving,they clearly had reasonable suspicion to detaindefendant for further inquiry. See People v.Sorenson, 196 Il.2d 425, 433, 256 Ill.Dec. 836,752 N.E.2d 1078 (2001); People v. Brodack,296 Ill.App.3d 71, 74, 230 Ill.Dec. 540, 693N.E.2d 1291 (1998). As the Court in Edmondrecognized, its holding was not meant to "impairthe ability of police officers to act appropriatelyupon information that they properly learn duringa checkpoint stop justified by a lawful primarypurpose, even where such action may result inthe arrest of a motorist for an offense unrelatedto that purpose." Edmond, 531 U.S. at 48, 121

The conclusion that Edmond does not compelthe result reached by the majority here issupported by the recent decision of the SupremeCourt of Virginia in Burns v. Commonwealth,261 Va. 307, 541 S.E.2d 872 (2001), which isthe only other reported case decided in theaftermath of Edmond to assess the validity of aroadblock established with the hope ofdiscovering witnesses to a specific, knowncrime, as opposed to a roadblock established todiscover evidence of crime in general. There,police set up a roadblock . . . in the hopes ofdiscovering witnesses to a brutal murder thatoccurred in a nearby house between the samehours on September 20-21, 1998.

In holding that the roadblock did not violate thefourth amendment, the Supreme Court ofVirginia first considered and weighed thefactors enunciated in Brown. Burns, 261 Va. at322, 541 S.E.2d at 883.

Similarly, I would find that the roadblock in thepresent case did not violate fourth amendmentprinciples. At the time police set up theroadblock, the offender remained at large withhis identity unknown. Thus, he continued topose a safety risk to others on the road.Moreover, even if the perpetrator was not animmediate threat, the same exigentcircumstances found to exist in Burns werepresent here because police had to moverelatively quickly to canvass the area at theappropriate time or risk losing informationabout the crime.

176

S.Ct. at 457, 148 L.Ed.2d at 347.

II. Application of the Brown Balancing Test

Given my conclusion that Edmond does notcategorically prohibit the type of roadblock atissue in the present case, I believe that it isincumbent upon this court to assess the validityof the roadblock in relation to the factors notedin Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637,61 L.Ed.2d 357 (1979). It is well settled that avehicle stop at a roadblock or highwaycheckpoint effectuates a seizure within themeaning of the fourth amendment. Edmond,531 U.S. at 40, 121 S.Ct. at 453, 148 L.Ed.2d at342; People v. Bartley, 109 Ill.2d 273, 280, 93Ill.Dec. 347, 486 N.E.2d 880 (1985). However,a roadblock where individuals are stoppedwithout probable cause or individualizedsuspicion is not a per se violation of the fourthamendment; the question of whether aroadblock violates the fourth amendment is oneof reasonableness, requiring the weighing of thegravity of the public concerns served by theseizure, the degree to which the seizureadvances the public interest, and the severity ofthe interference with individual liberty. Brown,443 U.S. at 50-51, 99 S.Ct. at 2640, 61 L.Ed.2dat 361-62; Bartley, 109 Ill.2d at 280, 93 Ill.Dec.347, 486 N.E.2d 880.

The factors set forth in Brown require a court tobalance the State's asserted interest for theroadblock against the "objective" and"subjective" intrusion on the motorist. Prouse,440 U.S. at 656, 99 S.Ct. at 1397, 59 L.Ed.2d at669; Martinez-Fuerte, 428 U.S. at 558, 96 S.Ct.at 3083, 49 L.Ed.2d at 1128. The objectiveintrusion is measured by such factors as thelength of the stop, the nature of the questioning,and whether a search is conducted; thesubjective intrusion relates to the concern,fright, or annoyance on the part of the motorist.Bartley, 109 1ll.2d at 282, 93 Ill.Dec. 347, 486N.E.2d 880.

Application of the Brown factors to the instantcase leads to the conclusion that the roadblockestablished by the Lombard police departmentpassed constitutional standards. The departmentmade the decision to set up the roadblockbecause of a fatal hit-and-run accident that hadbeen committed in the precise area of theroadblock, and officials did not know theidentity of the offender responsible for thecrime. That the perpetrator was still at largewas indeed a matter of grave public concern,and the roadblock advanced that concern byaiding in the investigation of the cnme.Moreover, the timing of the roadblock, exactlyone week after the crime at approximately thesame time of day, was purposely designed tostop motorists who might routinely travel thatroute at the end of their work shift and thus wasnarrowly tailored for maximum effectiveness.Thus, I would find that the State's interest in theroadblock was sufficient to outweigh a minimalintrusion on the motorist.

Likewise, the subjective nature of the intrusionwas minimal. The record indicates that a high-ranking lieutenant in the police departmentcalled the meeting to inform the officers thatthey were to participate in the roadblock.Vehicles were stopped in a systematic andpreestablished manner - all eastbound trafficwas stopped and this was not a roving patrol.Although an officer participating in theroadblock admitted that there were no writtenguidelines for "informational roadblocks"contained in the department's written guidelines,the department did have guidelines forroadblocks generally, and there is no indicationthat the officers in the field did not follow thepreestablished procedure for this particularroadblock. Although the roadblock itself maynot have been publicized in advance, it is clearthat the basis for the roadblock had been well-publicized, which would have likely minimizedany apprehension motorists may have otherwise

177

experienced upon encountering it. Finally, anyanxiety motorists may have felt was dissipatedby the official nature of the operation - therewas a large number of emergency vehiclespresent with flashing lights and officers clad inorange police vests.

IV. Conclusion

For the foregoing reasons, I would reverse thejudgment of the appellate court and reinstatedefendant's conviction. Accordingly, Irespectfully dissent.

Justices FITZGERALD and GARMAN join inthis dissent.

178

Justices Weight Police Roadblocks in Crime Probes; Fairness of Unrelated Arrests at Issue beforeSupreme Court

Chicago Sun-Times

May 6, 2003

Dan Rozak

The U.S. Supreme Court agreed Monday to heara case out of Lombard that tests theconstitutionality of police roadblocks as part ofan investigation.

Police in the west suburb put up a roadblock in1997 and briefly stopped every car that passed,passing out leaflets seeking information about afatal hit-and-run.

Robert Lidster, who police say nearly hit anofficer as he drove up to the checkpoint, wascharged with drunken driving and convicted.

But the Illinois Supreme Court later threw outLidster's conviction, ruling that the roadblockamounted to an unconstitutional search ofdrivers and that police could not stop drivers atrandom every time they needed tips about acrime. The U.S. Supreme Court agreed to hearan appeal of that decision filed by the Illinoisattorney general's office on behalf of theLombard police.

"When the police are conducting aninvestigation into a crime, they should not bebarred from taking action when another crime iscommitted in front of them," Melissa Merz, aspokeswoman for Attorney General LisaMadigan, said Monday.

At issue in the Lombard case is whether policecan set up checkpoints to seek informationabout a recent crime - then arrest people for

drunken driving or other wrongdoing.

Lidster's attorney, G. Joseph Weller, toldjustices that, if the police wanted to seekinformation, they could have used other ways,such as radio and television stations.

Lombard Police Chief Ray Byrne said Mondaythat police checkpoints are useful in solvingcrimes and he wants the court to uphold aconviction he sees as the result "of just goodpolice work."

"It was a crime-solving technique that wasvery unobtrusive," said Byrne, who was notwith the Lombard department at the time ofLidster's arrest.

The police set up the roadblock that caughtLidster at the same spot and time of day that thehit-and-run took place. They hoped to findsomeone who used the route and had seen thecollision. Police stopped each car for 10 to 15seconds--long enough to mention the crash andhand out a flier asking for help.

The nation's high court already has said policeofficers can set up sobriety checkpoints torandomly detect drunken drivers and borderroadblocks to intercept undocumentedimmigrants. But the justices ruled in 2000 thatrandom roadblocks intended for drug searchesare an unreasonable invasion of privacy underthe constitution.

179

Lombard Case Could Affect Police Roadblocks

Chicago Daily Herald

October 19, 2002

Robert Sanchez Daily Herald Staff Writer

Law enforcement authorities said they'retroubled by an Illinois Supreme Court rulingFriday that puts strict limits on when they mayuse roadblocks to stop drivers.

In a 4-3 decision, the court threw out the DUIconviction of Robert Lidster, who was arrestedin 1997 at a roadblock Lombard police set up toseek information about an earlier hit-and-run.

The court upheld a lower court ruling that theroadblock amounted to an unconstitutionalsearch of drivers.

Police cannot randomly stop drivers every timethey need tips about a crime, the court held.

"The right of an individual to be free fromunreasonable searches and seizures is anindispensable freedom, not a mere luxury,"Justice Charles Freeman wrote. "It cannot giveway in the face of atemporary need for the police to obtaininformation."

DuPage County state's attorney's officeofficials who prosecuted Lidster said they weretroubled by the ruling.

First Assistant State's Attorney John Kinsellasaid police were not randomly searching cars orquestioning drivers.

"They were literally handing out fliers askingmotorists if they had any information relative to

this crime," Kinsella said. "To suggest thatpolice can't do that is very troublesome. That'sgoing to be a concern to all police."

Jim Sotos, an attorney for the IllinoisAssociation of Chiefs of Police, also said theruling "eliminates a useful police tool thatenlists the support of the citizenry in solvingcrimes."

"It appears the court gave short shrift to thepublic's interest in solving crimes," Itascaattorney Sotos said.

Police have a tough enough time solvingcrimes without further restrictions, he said.

"When you take away a tool which allowsthem to enlist the support of everyday drivers,that just makes their job that much moredifficult," he said.

Carol Stream attorney Elaine Sofferman, whoargued the case in the Supreme Court onLidster's behalf, disagreed.

"I don't think it's going to make muchdifference," she said. "Police still have so manyother methods to investigate crimes."

Sofferman said roadblocks are legitimate ifused in emergencies or specific circumstanceslike checking for drunken drivers or searchingfor a fleeing suspect. She said Lombard'sroadblock didn't meet those standards.

180

"You can't set up a roadblock every time thereis a crime," she said. "There are other, moreeffective ways to catch criminals."

Kinsella said he agrees it's improper to set uproadblocks as random dragnets.

"Here we had a specific crime that occurred ata specific location," he said. "The informationalroadblock was set up at a time and location toinvestigate that crime.

"This was not a general investigation ofcriminal activity where we are trying to sort outif any of the motorists were committing acrime."

DuPage prosecutors are still considering anappeal to the U.S. Supreme Court.

Lidster, at the time a Bartlett resident, nearlyhit a detective with his minivan in 1997 afterpolice handed him a flier requesting informationabout a hit-and-run accident that killed a 70-year-oldbicyclist on North Avenue.

Suspecting he'd been drinking, police stoppedLidster, who failed field sobriety tests.

But those tests - the only evidence againstLidster - were thrown out last year by the 2ndDistrict Appellate Court.

Daily Herald news services contributed tothis report.

181

RULING DRAWS LINE ON POLICE USE OF ROADBLOCKS

Chicago Daily Law Bulletin

October 30, 2002

Patrick J. Cotter

In this post 9/11 America, filled as it is withterrorists, clouds of war and even snipers, thetension between our constitutionally guaranteedcivil liberties and the government's efforts toprovide security are as great, or greater, thanthey have ever been in the history of our nation.Nowhere is that tension greater than at theinterface of our Fourth Amendment rights to befree from unreasonable search and seizure andlaw enforcement efforts to address the public'sdemands for the prevention and the solving ofcrimes.

One type of police-citizen encounter that candefinitely be expected to become far morecommon is the roadblock. In the days and weeksafter the Sept. 11 attacks, the use of blockadesin and around New York and Washington waswell publicized. Many emergency plans to dealwith terrorist threats call for their use, as therecent incident with the three Islamic medicalstudents terrorists in Florida made clear.

In just the last few weeks, the nation watchedas the police set up dozens of roadblocks to tryand capture the Washington-area sniper.

On Oct. 18, a divided Illinois Supreme Courtrendered an important decision in a case dealingwith one type of roadblock that led to aconfrontation between individual rights and lawenforcement efforts;

Today's column, the first of two on this case,looks at the majority ruling in People v. RobertLidster, No. 91522 (Oct. 18). The second

installment on Friday will examine the dissent.

The Lidster majority held that a policeroadblock set up to attempt to find witnesses toa hit-and-run accident had violated the FourthAmendment guarantee against unreasonablesearch and seizures. In doing so, the court notonly provided an extremely thorough andthoughtful discussion of the U.S. SupremeCourt's landmark decision in City ofIndianapolis v. Edmond, 531 U.S. 32, 148L.Ed.2d 333, 121 S.Ct. 447 (2000), which alsodealt with roadblocks, but also made animportant statement about where this court maystrike the balance between the FourthAmendment's guarantees of individual libertyand law enforcement's needs.

In August 1997, Lombard police set up aroadblock on a busy street in the westernsuburb. The roadblock was intended to findpotential witnesses to a fatal hit-and-runaccident that had occurred one week earlier atthe location. At the roadblock, instituted at thesame time of day as the accident, all motoristswere stopped by a number of police andfunneled past other officers standing in the road.The motorists were handed a flier that solicitedinformation regarding the accident.

When one passing motorist, defendant Lidster,was stopped by the police, a officer requested tosee his driver's license and insurance card. Theofficer later claimed that the defendant hadalmost struck him with his car as he pulled up tothe roadblock. Additionally, after he approached

182

the defendant, the officer said he detected boththe smell of alcohol and slurred speech.

The police officer directed the defendant toproceed to a nearby side street, where otherpolice officers were stationed. On the sidestreet, the police ordered him to perform severalfield sobriety tests. The defendant apparentlyfailed and was charged with driving under theinfluence of alcohol.

Before trial, the defendant moved to suppressthe police seizure of his person and thesubsequent fruits of that seizure as having beenobtained in violation of his Fourth Amendmentrights.

The trial court denied the motion, and thedefendant was found guilty after a bench trial.He was sentenced to one year of conditionaldischarge, a fine and 14 days of communityservice.

On appeal, the Appellate Court reversed thedenial of Lidster's motion to suppress. The courtrelied heavily on the U.S. Supreme Court'sdecision in Edmund and found that theroadblock the Lombard police employed wasunconstitutional. (That Appellate Court opinionwas discussed in this column last year.)

The state petitioned for leave to appeal to theIllinois Supreme Court, which accepted the caseand allowed the Illinois Association of Chiefs ofPolice to file an amicus curiae brief in supportof the state.

The majority affirmed the Appellate Court'sfinding that the roadblock was unconstitutional.

The majority began its analysis with a thoroughdiscussion of Edmund. The Edmund court foundthat check points set up by the police on roads inand around Indianapolis in an effort to interdictunlawful drugs violated the Fourth Amendment.Specifically, the Edmund court rooted its

analysis on the Fourth Amendment'srequirement that searches and seizures bereasonable and that a search or seizure isordinarily considered unreasonable in theabsence of individualized suspicion ofwrongdoing.

The Edmund court recognized that in a fewvery narrowly limited circumstances thegovernment is allowed to conduct searches orseizures of citizens without individualizedsuspicion.

For example, the Edmund court noted, briefseizures of motorists at fixed border checkpointsdesigned to intercept illegal aliens had beenapproved as an exception to the general rule. Inaddition, Edmund acknowledged that sobrietycheckpoints aimed at removing drunken driversfrom the road have also been upheld. Thesenarrow exceptions were allowed because theroadblocks in each instance were designed tomeet important and "special needs beyond thenormal need for law enforcement" -- and thusdid not significantly undermine the libertyinterest the Fourth Amendment seeks to protect.

Turning to the Indianapolis police roadblocksdesigned to find illegal drugs, Edmund ruledthat such a roadblock was not designed to serveany "special need" beyond the normalinvestigative purposes of law enforcement.Indeed, the Edmund court made it clear that theSupreme Court had "never approved anycheckpoint program whose primary purpose wasto detect evidence of ordinary criminalwrongdoing," such as those employed by theIndianapolis police. The Edmund courtconcluded its analysis by stating that the FourthAmendment drew a line at "roadblocks designedprimarily to serve the general interest in crimecontrol."

A failure to draw a line prohibiting suchroadblocks, the high court said, would have thepotential to permit such governmental intrusions

183

on the liberty of the citizens to "become aroutine part of American life," a result that theFourth Amendment could not allow.

Applying the lessons of Edmond to theLombard roadblock, the Illinois Supreme Courtmajority agreed with the Appellate Court andfound that "the roadblock's ostensible purposewas to seek evidence of ordinary criminalwrongdoing." As such, the court held that theseizure and search of the defendant by theLombard police violated the Fourth Amendmentprohibition against searches not based onindividualized suspicion of wrongdoing. TheLombard roadblock did not fall within therecognized limited exceptions to that rule, themajority said.

The majority proceeded to spend considerabletime addressing the arguments raised by thestate and the amicus curiae brief.

First, the state asserted that because theLombard roadblock was designed to findevidence of a specific crime that had alreadyoccurred -- the hit-and- run -- as opposed toseeking evidence of possible crimes that mightbe occurring, and because the roadblock was notdesigned to seek evidence against the stoppedmotorists themselves, it did not fall within theroadblock type condemned in Edmund.

The majority rejected this attempted distinction,finding that contrary to the state's assertion,there was no constitutional distinction to bedrawn between police seizure and interrogationof citizens seeking evidence against the personseized for unknown possible crimes and policeseizure and interrogation of citizens seekingevidence against a third party for a specificcrime. The infringement of the seized citizen'sright to be free from seizure by the police absentindividualized suspicion is the same.

The majority added that the state's attempt to fitthe Lombard roadblock into the limited

exceptions to the requirement of individualizedsuspicion misinterpreted Edmund and "ignoresthe concerns expressed by the court inEdmond." Indeed, the Illinois Supreme Courtmajority noted that the Edmund court was"keenly aware" that an exception for roadblocksdesigned primarily to serve the general interestof crime control would abrogate the general rulerequiring individualized suspicion ofwrongdoing -- and seriously undermine theFourth Amendment protections.

Such a broad interpretation of the government'sright to seize and search citizens would soonhave the consequence of turning roadblocks intoa "routine part of American life."

In a very striking section of its opinion, themajority provided specific statistics as to thenumber of crimes of various types, includingmurders, assaults, robberies, burglaries, thefts,motor vehicle thefts and arsons, that haveoccurred in the state, Cook County and Chicagoduring one year, 2000. The opinion is worthreading by every citizen of the State of Illinois ifonly for the chance to see the truly stunningnumbers of crimes being committed around us,on us and by us. The Illinois Supreme Court'spurpose, however, in citing the statistics was notto reassure all criminal law practitioners thatthere is little chance that we will soon see adecline in business but, rather, was to raise whatcan be fairly termed the "nightmare scenario"that could occur if the state's arguments wereaccepted. The majority asked the question,Why, if the Lombard roadblock to find thedriver in a fatal hit-and-run accident was to befound constitutional, law enforcement agenciesaround the state could not set up roadblocks toinvestigate any of the literally thousands uponthousands of crimes that occur every year.

Specifically, the majority noted that accordingto the state's arguments, "for a period of at leasta week after each crime" police could set uproadblocks with a specific purpose of making

184

inquiries of persons who were possiblewitnesses to a crime.

The troubling specter then arises that the streetsof Chicago "would be adorned with roadblocks,an outcome clearly unacceptable underEdmund." Indeed, in Chicago alone for the year2000 there were 627 murders and 26,660assaults. Even if the police limited their use ofinvestigatory roadblocks to the most serious ofcrimes it is conceivable that there could be ahundred roadblocks a year set up at variousplaces and at various times.

Indeed, it seems that this is the "routine part ofAmerican life" that the Edmund court sovigorously stated roadblocks should neverbecome.

The majority also addressed an argument madeby the amicus brief. Specifically, the majorityrejected the argument that "exigentcircumstances" justified the use of the Lombardroadblock. Amicus counsel correctly pointed outthat the Edmund court had left open thepossibility that emergencies might arise thatwould allow law enforcement to employroadblocks even in the absence of individualizedsuspicion, for instance, to stop an imminentterrorist threat or to prevent a serious criminalfrom escaping the scene of a crime.

The majority, however, rejected the amicusargument, finding that exigent circumstancessimply did not exist in the Lombard situation.The majority noted that there was "noindication" that the motorists being sought fromthe hit- and-run posed any imminent threat ofdanger to any local resident or was even still inthe vicinity where the roadblock was set up.Additionally, there was no indication that themotorist from the hit-and-run had necessarilybeen driving recklessly or had been under theinfluence of alcohol. Thus, the majority foundthat there were no exigent circumstances presentthat could justify the Lombard roadblock.

Nonetheless, it is perhaps quite significant thateven the majority in Lidster acknowledged thatexigent circumstances of a kind that we have allseen much more of post-9/11 may well requirethis court, like this nation, to further loosen theconstraints of the Fourth Amendment on policeaction. -- Friday: The Dissent

Criminal Law By Patrick J. Cotter Cotter is apartner in the law firm of Arnstein & Lehr,where he concentrates in criminal defense.Cotter and Arnstein partners Patrick A. Tuiteand Ronald D. Menaker rotate authorship of thiscolumn.

185

FACTIONS TAKE DIFFERENT PATHS TO ASSESS ROADBLOCK

Chicago Daily Law Bulletin

November 1, 2002

Patrick J. Cotter

There's a great tension these days betweenour Fourth Amendment rights to be freefrom unreasonable search and seizure andlaw enforcement efforts to fight crime.

On Oct. 18, a divided Illinois SupremeCourt rendered an important decision in acase dealing with one crime-fightingmeasure -- a roadblock Lombard policeerected in August 1997 to track down themotorist responsible for a fatal hit- and-runaccident in the western suburb.

But the roadblock netted someone else.Robert Lidster was arrested on a drunkendriving charge after police shunted him offto the side to check his license andinsurance, apparently because he nearly hitone of the officers running the roadblock.

Lidster unsuccessfully moved to suppressthe seizure, was found guilty, but won onappeal to the 2d District Appellate Court.The state then took the case to the SupremeCourt.

Today's column, the second of two on thiscase, looks at the dissent in People v.Robert Lidster, No. 91522 (Oct. 18). Thefirst installment on Wednesday examinedthe majority ruling that the roadblockviolated the Fourth Amendment.

In doing so, the majority not only providedan extremely thorough discussion of theU.S. Supreme Court's landmark decision in

City of Indianapolis v. Edmond, 531 U.S.32, 148 L.Ed.2d 333, 121 S.Ct. 447 (2000),but also made an important statement aboutwhere this court may strike the balancebetween the Fourth Amendment'sguarantees of individual liberty and lawenforcement's needs.

In the dissent, however, three judges of theSupreme Court took issue with themajority's interpretation of Edmund, as wellas the analytical approach taken to the entireissue of roadblocks.

The dissent agreed with the state thatEdmund was distinguishable from the caseat bar in that the nature, purpose and scopeof the roadblocks in the two cases were"completely different." The dissent notedthat the evidence in the record suggestedthat the Lombard roadblock stops were farshorter in duration than the stops in Edmundand that the roadblock in Edmund wasdesigned to identify possible criminalactivity of which the police had no priorknowledge, unlike the specifically targetedroadblock in Lombard.

The dissent took the position that thesedistinctions placed the Lombard roadblockcloser to the category of roadblocks the U.S.Supreme Court has found to beconstitutional, such as border stops and DUIroadblocks.

It is worth noting perhaps that the Lidster

186

dissenters focused much, if not all, of theiranalysis on the nature of the police actionsinvolved. While this is, of course, anappropriate inquiry in Fourth Amendmentcases, the majority, and the Edmund court,seemed to weigh more heavily the effect ofthe police actions on the individual citizen.

As to the individual citizen stopped by theroadblock in Lombard, the effect of thepolice seizure is the same whether the policeare seeking information about crime ingeneral or about a specific crime and aspecific criminal. Perhaps it is thisdifference in emphasis -- police motivationversus impact on citizen liberty -- thatexplains the difference in analyses of themajority and dissent.

The dissent raised several additionalarguments, apparently not raised by thestate, including that the Lombard roadblockcould be seen as a roadblock in the interestof "highway safety" and therefore akin toDUI roadblocks. The dissent noted thatlanguage in Edmund seems to contemplatethe constitutionality of roadblocks to checkfor driver licenses. The dissent argued that ifa roadblock to check for licenses would beconsidered constitutional then a roadblockseeking information regarding a "deadly hit-and-run crime" should also be constitutional.

This point by the dissent, however, may bemixing apples and oranges.

The highway safety exception for DUIroadblocks and, possibly for drivers' licensechecks, are premised on the notion that suchroadblocks would not be used to seekevidence of "ordinary criminal wrongdoing"but, rather, as the only practical method ofregulating and ensuring legal and safe use ofpublic roads. The far broader, and thereforefar more invasive, use of roadblocks as anadditional tool for the investigation of

ordinary criminal activities is what theEdmund court said the Fourth Amendmentforbids.

Seeking evidence of a fatal hit-and-runwould seem to be, by any reasonabledefinition, well within the concept ofordinary criminal investigation. Thatroadblocks for both DUI and hit-and-runevidence would be set up on a road andrelate to activities on a road does not in andof itself seem logically to bring them underthe same category of highway safety nor torender them equally constitutional.

The dissent also discussed a case from theVirginia Supreme Court: Burns v.Commonwealth, 261 Va. 307, 541 S.E.2d872 (2001). A post-Edmund case, the Burnscourt upheld a police roadblock anddistinguished Edmund, noting that theroadblock in the Virginia case was not toinvestigate "ordinary criminal wrongdoing"but was "specifically designed to investigatea particular murder that had recentlyoccurred in the area where the roadblockwas placed."

The dissent certainly seems to be correctthat the Virginia Supreme Court acceptedthe distinction between investigation of"ordinary criminal wrongdoing" andinvestigation of a particular crime, which themajority of the Illinois high court rejected inLidster.

The real question, however, is whether theU.S. Supreme Court in Edmund wouldaccept this distinction. The VirginiaSupreme Court, as explained by the dissent,seems to have also relied, at least in part, ona notion that the roadblock in the Illinoiscase was somehow necessitated by an"emergency," a claim similar to one that theLidster majority specifically rejected.

187

After having explained why the majorityhad misunderstood Edmund, the dissentwent on to suggest that the proper analysiswas to be found in Brown v. Texas, 443U.S. 47, 61 L.Ed.2d 357, 99 S.Ct. 2637(1979). Essentially, the Brown case requirescourts reviewing roadblocks to engage in abalancing analysis that places the state'sasserted interest in balance against theintrusion on the motorist. Without goingthrough the entire Brown analysis, suffice itto say that the dissent found that had aBrown balancing analysis been conducted inthis case, it would have found that the state'sinterest in the roadblock was sufficient tooutweigh what the dissent considered to bethe minimal intrusion on citizens.

The dissent did not discuss what, if any, theeffect of the Edmund case from 2000 hashad on the approach suggested by the Browncase in 1979, nor did it explain why theSupreme Court in Edmund did not rely onBrown.

Finally, the dissent attempted to assuage themajority's concern about a "proliferation ofroadblocks" should the Lombard roadblockbe found to be constitutional. The dissentsuggested that the Lombard roadblock couldbe upheld on the basis that it was related to ahighway crime: the fatal hit-and- runaccident; and therefore, such a holdingwould stand only for the proposition thatroadblocks would be allowable in searchingfor evidence of crimes occurring on thehighway. This argument, of course, dependson whether one is persuaded by the dissent'sattempt to place the Lombard roadblock intothe same category with the sobrietycheckpoints.

The dissent also suggested that themajority's "nightmare scenario" of hundredsof roadblocks around the city and state ishighly unlikely because "the amount of

roadblocks would be limited by the scarcepublic resources available to the police."Thus, the dissent appears to be making thearguments that even if a ruling upholdingthe Lombard roadblock might make itconstitutional for the police to erectroadblocks in relation to hundreds, if notthousands, of cases, as long as the police donot have enough money and manpower todo so there should be no serious concern onthe part of the citizenry.

This rather novel argument, linking as itdoes the extent of the citizens' freedom fromgovernment seizure to the particular level ofgovernment resources at any given time, iscertainly creative, though unsupported bycitation.

The majority in Lidster concluded itsopinion by explicitly noting the "constanttension" between the Constitution'sprotections of the individual versus theexercise of official power. The court wasalso explicitly sympathetic to lawenforcement's need to protect citizens frommany threats. However, the Illinois SupremeCourt majority made clear that, in its role asthe "protector of the constitutional rights ofall citizens of this state," it is compelled todraw the line where governmental actionviolates the Fourth Amendment protectionsof the individual citizen.

The majority declared that the right of anindividual to be free from unreasonablesearches and seizures is "an indispensablefreedom, not a mere luxury."

There can be little doubt that in the monthsand years to come this proposition will beput to severe test in numerous cases yet toarise. As those cases come before the IllinoisSupreme Court and other courts around thiscountry, the opinion in Lidster will, Ibelieve, loom ever larger. It is therefore

188

incumbent on every practitioner and judge inthis state to not only read Lidster but toseriously consider the issues raised by thecase.

Criminal Law By Patrick J. Cotter Cotter isa partner in the law firm of Arnstein & Lehr,where he concentrates in criminal defense.Cotter and Arnstein partners Patrick A.Tuite and Ronald D. Menaker rotateauthorship of this column.

189

A BETTER INTERPRETATION OF "SPECIAL NEEDS" DOCTRINE AFTEREDMOND AND FERGUSON

Yale Law Journal

June, 2003

Jonathan Kravis

[Excerpt; some footnotes omitted]

Part I of this Comment summarizes thespecial needs doctrine as interpreted inEdmond and Ferguson; Part II offers analternative approach to the doctrine...

I

In discussing the DNA Act searches, boththe Miles and Reynard courts relied on Cityof Indianapolis v. Edmond and Ferguson v.City of Charleston.13 In Edmond, the Courtstruck down Indianapolis's highwaycheckpoint program, under which randomlystopped cars were visually inspected byofficers and sniffed by narcotics-detectingdogs. Unlike highway checkpoints withvirtually identical effects upheld in earliercases,' Indianapolis's program was createdfor the "primary purpose [of detecting]evidence of ordinary criminal wrongdoing."Thus, the Border Patrol could stop cars nearthe border, and the police could stopmotorists for sobriety checks, because in

13 Miles, 228 F. Supp. 2d at 1135-38; Reynard, 220 F.Supp. 2d at 1165-68.

15 Compare id. at 35-36, with Mich. Dep't of StatePolice v. Sitz, 496 U.S. 444, 447-48 (1990), andUnited States v. Martinez-Fuerte, 428 U.S. 543, 545-47 (1976).

both cases the searches were justified by aprimary purpose distinct from "generalcrime control ends," namely, safeguardingthe border and removing drunk drivers fromthe roads. But because Indianapolis hadconceded that its program "unquestionably[had] the primary purpose of interdictingillegal narcotics," the program could not besimilarly justified.

In Ferguson, Charleston proved that it hadlearned from Indianapolis's unwiseconcession in Edmond. Charleston arguedthat a public hospital's policy of testingpregnant women for cocaine use had theprimary non-law-enforcement purpose ofprotecting the health of mother and child,and therefore fell within the special needsexception. The Court nevertheless struckdown the program, concluding that while the"ultimate goal of the program" may havebeen to get the women into treatment, the"immediate object of the searches was togenerate evidence for law enforcementpurposes in order to reach that goal."

How did the Court distinguish the"immediate object of the searches" at issuein Ferguson from the warrantless drug-testing programs upheld in earlier cases?Here again, the Court defined the specialneeds category by considering the primarypurpose to which the government intended

190

to put the results of the search. Each of theearlier programs upheld by the Court wasjustified by a purpose that did not involvearrest and prosecution: protecting theintegriti of the front lines in the war ondrugs, gathering reliable data on trainaccidents caused by substance abuse,2 3 orensuring the safety of high school students. 24

The Charleston policy, by contrast, focusedon "the arrest and prosecution" of the drug-abusing mothers.

Taken together, Edmond and Fergusonarticulate a kind of evidentiary approach tospecial needs analysis. In determiningwhether a warrantless search falls under thespecial needs exception, the court asks,"What is the primary purpose to which thegovernment intends to put the results of thesearch?" If the answer is simply, "togenerate evidence for law enforcementpurposes," then the exception does notapply. If, however, the government canplausibly argue that it needs the searchresults primarily for something other thancriminal prosecution, then the special needsexception applies.

The Miles and Reynard courts faithfullyapplied this test in their analyses of theconstitutionality of the DNA Act searches.In both cases, the government argued thatthe primary purpose of the searches was tocreate a more accurate DNA database,which would assist law enforcement insolving past and future crimes and therebyensure a more accurate criminal justicesystem. The Miles court concluded that thispurpose was "indistinguishable from the

22 Nat'l Treasury Employees Union v. Von Raab, 489U.S. 656, 670 (1989).

23 Skinner v. Ry. Labor Executives' Ass'n, 489 U.S.602, 620-23 (1989).

24 Bd. of Educ. v. Earls, 536 U.S. 822 (2002).

government's basic interest in enforcing thelaw," since the evidence was being used tosolve and prosecute crimes. The Reynardcourt, on the other hand, found that "thecreation of a more accurate criminal justicesystem" was a purpose that went beyond"the normal need for law enforcement."

Thus, the debate between the Miles andReynard courts over the constitutionality ofthe DNA Act searches amounted to asemantic disagreement over the meaning of"law enforcement purposes." By focusingtheir attention on whether the creation of amore accurate criminal justice system is a"law enforcement purpose," both courtsignored many of the central issues pertainingto the reasonableness of the DNA Actsearches.

This definitional quandary, moreover, isinevitable under the special needs test asarticulated in Edmond and Ferguson. Thosecases frame the special needs inquiry interms of whether the government's primarypurpose in obtaining the results of the searchis law-enforcement-related. In applying thistest, lower courts faced with special needsarguments will have to determine (1)whether a given purpose is non-law-enforcement-related, and (2) if so, whetherthat is the primary purpose of the search.

But there are several reasons why thesequestions are not helpful in determiningwhether warrantless searches are reasonable,which is, after all, the point of the specialneeds exception. First, there is no reason tobelieve that searches conducted primarilyfor non-law-enforcement purposes arecategorically more likely to be reasonablethan law enforcement searches. The Courthas noted, "It is surely anomalous to say thatthe individual and his private property arefully protected by the Fourth Amendmentonly when the individual is suspected of

191

Fourth Amendment."

Second, the distinction between lawenforcement and non-law- enforcementpurposes is not entirely clear. Most of thewarrantless searches upheld under specialneeds analysis had a law enforcementpurpose in the sense that they ultimately ledto an arrest and/or criminal prosecution.Conversely, nearly any law enforcementsearch could also be said to have a non- law-enforcement purpose, since "lawenforcement involvement always servessome broader social purpose or objective."Thus, most warrantless searches will haveboth law enforcement and non-law-enforcement purposes. Edmond andFerguson suggest that a special needs searchis one in which the non-law- enforcementpurpose is "primary," but offer littleguidance about how to distinguish primaryfrom secondary purposes.

Third, the special needs test suggests thatsubjective intent is relevant to thereasonableness of the search: "[O]ur specialneeds . . . cases demonstrate that purpose isoften relevant when suspicionless intrusionspursuant to a general scheme are at issue."But this approach is inconsistent with theCourt's holding in Whren v. United Statesthat an actor's motive does not "invalidate[]objectively justifiable behavior under the

31 Camara v. Mun. Court, 387 U.S. 523, 530 (1967)(applying the warrant requirement to municipalhousing inspections); see also Michigan v. Tyler, 436U.S. 499, 504 (1978) ("The decisions of this Courtfirmly establish that the Fourth Amendment extendsbeyond the paradigmatic entry into a private dwellingby a law enforcement officer in search of the fruits orinstrumentalities of crime."); William J. Stuntz,Privacy's Problem and the Law of CriminalProcedure, 93 Mich. L. Rev. 1016, 1017 (1995)("[M]uch of what the modem state does outside ofordinary criminal investigation intrudes on privacyjust as much as the kinds of police conduct thatFourth and Fifth Amendment law forbid.").

II

The special needs doctrine as articulated inEdmond and Ferguson and applied in Milesand Reynard asks an evidentiary question:Does the government have a special (i.e.,non-law-enforcement-related) need for thefruits of the search? I propose that thespecial needs doctrine should instead ask anadministrative question: Does the context ofthe search at issue create a special need forwarrantless searches? When the governmentconducts business-as-usual crime fighting,the Fourth Amendment requires thatsearches and seizures be based onindividualized suspicion.3 7 But when thecontext of the search differs from everydaypolice work, the government may be able toarticulate a special need for warrantlesssearches, even if its primary purpose inobtaining that evidence is prosecutorial.

Thus, school searches fall within thespecial needs exception because the warrantrequirement is unsuited to the schoolenvironment. Requiring teachers, who arenot familiar with Fourth Amendmentjurisprudence, to obtain a warrant beforesearching a student "would unduly interferewith the maintenance of the swift andinformal disciplinary procedures needed inthe schools." 38 Similarly, warrantless stopsnear the border are permissible on theground that a warrant requirement "wouldbe impractical because the flow of traffictends to be too heavy to allow the

3 See Mincey v. Arizona, 437 U.S. 385, 393 (1978)("[T]he mere fact that law enforcement may be mademore efficient can never by itself justify disregard ofthe Fourth Amendment.").

38 New Jersey v. T.L.O., 469 U.S. 325, 340 (1985).

192

criminal behavior." 0

particularized study of a given car."39

Likewise, suspicionless drug testing ofrailroad employees immediately after anaccident is necessary because the delayrequired to obtain a warrant would destroymuch of the toxicological evidence thegovernment needs to determine whether theaccident was drug- or alcohol-related--again,an administrative consideration. 40 And soon.

The administrative interpretation of thespecial needs doctrine suggests that theEdmond highway checkpoint program wasunconstitutional because, with the narrowexception of border searches, highwaycheckpoints cannot be justified by anadministrative special need. Drug couriersare the targets of everyday law enforcement.Their illegal activities are supposed to makethem susceptible to apprehension throughordinary law enforcement methods. Thesuspicionless searches at the highwaycheckpoints were simply a shortcut aroundthese methods.

The key fact in Ferguson was that lawenforcement and city prosecutors wereinvolved in the hospital's drug-testingprogram from its inception--deciding whowould be tested, how and when the testswould be conducted, and even establishing achain of custody for the evidence. Unlike thedrug tests of railroad employees (upheld inSkinner) or high school students (upheld inEarls), the drug tests in Ferguson were notadministered by officials unfamiliar withFourth Amendment jurisprudence. Nor wasthere any danger, as in Skinner, thatevidence would be lost because of the delay

'9 United States v. Martinez-Fuerte, 428 U.S. 543,557 (1976).

40 Skinner v. Ry. Labor Executives' Ass'n, 489 U.S.602, 623 (1989).

necessary to obtain a warrant, since thewomen were in the hospital for an extendedperiod to give birth. The involvement ofpolice and prosecutors in the administrationof the program has constitutionalsignificance, not because it reveals aprimary law enforcement purpose, but ratherbecause it suggests that, as in Edmond, thewarrantless search program was nothingmore than a police shortcut.

This brief account of the Court's recentcases suggests that, under the administrativeinterpretation, the special needs doctrinewould likely apply when (1) the search isadministered by non-law-enforcementofficials; (2) the delay necessary to obtain awarrant would result in the loss of evidenceor otherwise frustrate the purpose of thesearch; or (3) the context in which the searchis conducted necessarily requiresrandomness, for example because of thesheer number of searches involved.

193

02-6320 Fellers v. United States

Ruling Below: (8th Cir., 285 F.3d 721)

Police visit to indicted defendant's residence, at which time they informed defendant that theywere there pursuant to indictment and that they wanted to discuss defendant's involvement in useand distribution of drugs and his associations with certain persons, but did not warn him of rightsunder Miranda v. Arizona, 384 U.S. 436 (1966), did not constitute police interrogation withinmeaning of Sixth Amendment rule that guarantees assistance of counsel at post-indictmentinterviews, and thus inculpatory statements defendant made at his home did not taint subsequentinculpatory statements that he voluntarily and knowingly made at jail after being given Mirandawarnings, signing Miranda waiver, and agreeing to speak with officers.

Question Presented: (1) Did court of appeals err when it concluded that defendant's SixthAmendment right to counsel under Massiah v. United States, 377 U.S. 201 (1964), was notviolated because defendant was not "interrogated" by government agents, when proper standardunder Supreme Court precedent is whether government agents "deliberately elicited" informationfrom defendant? (2) Should second statements--preceded by Miranda warnings--have beensuppressed as fruit of illegal post-indictment interview without presence of counsel, under thiscourt's decisions in Nix v. Williams, 467 U.S. 431 (1984), and Brown v. Illinois, 422 U.S. 590(1975)?

UNITED STATES of America, Appellee,V.

John J. FELLERS, Appellant.

United States Court of AppealsFor the Eighth Circuit

Submitted: Oct. 16, 2001.Filed: April 8, 2002.

Rehearing Denied: May 7, 2002.


WOLLMAN, Chief Judge. violation of 21 U.S.C. § § 841(a)(1) and 846.We affirm.

John Fellers appeals from the judgment ofconviction entered and the sentence imposed bythe district court' for conspiracy to possess withintent to distribute methamphetamine in On February 24, 2000, two policemen went to

Fellers' Lincoln, Nebraska, home to arrest himThe Honorable Lyle E. Strom, United States District for conspiracy to distribute methamphetamine.

Judge for the District of Nebraska.

194

After Fellers's admitted the police to the house,they told him that they were there pursuant to anindictment and that they wanted to discuss hisinvolvement in the use and distribution ofmethamphetamine and his associations withcertain persons. Fellers responded by statingthat he had associated with the named personsand that he had used methamphetamine. At notime during this conversation did the policeadvise Fellers of his Miranda rights.

The officers then escorted Fellers to jail, wherethey advised him of his Miranda rights. Fellerssigned a written Miranda waiver form andagreed to speak with the officers. During thisconversation, Fellers reiterated the inculpatorystatements made at his home and admitted hisassociation with several more co-conspirators.

Fellers moved to suppress both the inculpatorystatements made at his home and those made atthe jail. A magistrate judge found that both setsof statements should be suppressed becauseFellers was in custody at the time he made thestatements at his home, the officers useddeceptive stratagems to prompt thosestatements, and the subsequent statements at thejail would not have been made but for the priorill-gotten statements. The district court agreedthat the statements made at Fellers's homeshould be suppressed, but admitted thestatements made at the jail after finding thatFellers had knowingly and voluntarily waivedhis Miranda rights before making thosestatements.

The jury found that Fellers had conspired todistribute and to possess with intent to distributebetween 50 and 500 grams ofmethamphetamine. At sentencing, the districtcourt held Fellers responsible for more than 500grams of methamphetamine and denied Fellers'srequest for a mitigating role adjustment, as wellas his motion for a downward departure. Afterfinding that category II did not adequatelyreflect the seriousness of Fellers's past criminal

conduct, the district court raised Fellers'scriminal history category to III and sentencedhim to 151 months' imprisonment.

II.

Fellers argues that the district court should havesuppressed his inculpatory statements made atthe jail because the primary taint of theimproperly elicited statements made at his homewas not removed by the recitation of hisMiranda rights at the jail.

The voluntariness of a confession is a legalinquiry subject to plenary appellate review.United States v. Robinson, 20 F.3d 320, 322 (8thCir.1994). To determine if Fellers's inculpatorystatements at the jail were voluntary, we mustdetermine if, "in light of the totality of thecircumstances, the pressures exerted by theauthorities overwhelmed the defendant's will.Coercive police activity is a necessary predicateto finding that a confession is not voluntary inthe constitutional sense." Id (citing Colorado v.Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 93L.Ed.2d 473 (1986)) (internal citation omitted).

Contrary to Fellers's contention otherwise, weconclude that Oregon v. Elstad, 470 U.S. 298,105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), rendersadmissible the statements made by Fellers at thejail. In that case, two officers went to Elstad'sresidence with a warrant to arrest him for theburglary of a neighbor's home. One of theofficers told Elstad that he believed that Elstadhad been involved in the burglary, whereuponElstad responded "Yes, I was there." Theofficers then transported Elstad to the sheriffsoffice, where, approximately one hour later,they advised Elstad of his Miranda rights.Elstad indicated that he understood his rightsand that he wished to waive them. Elstad thensigned a written statement explaining his role inthe burglary. The trial court suppressed Elstad'sinitial oral statement, but admitted his writtenconfession. Id. at 300-302, 105 S.Ct. 1285. In

195

holding that the statement given at the sheriffsoffice was admissible, the Court stated:

It [would be] an unwarranted extension ofMiranda to hold that simple failure toadminister the warnings, unaccompanied by anyactual coercion or other circumstancescalculated to undermine the suspect's ability toexercise his free will, so taints the investigatoryprocess that a subsequent voluntary andinformed waiver is ineffective for someindeterminate period. Though Mirandarequires that the unwarned admission must besuppressed, the admissibility of any subsequentstatement should turn in these circumstancessolely on whether it is knowingly andvoluntarily made.

Elstad, 470 U.S. at 309, 105 S.Ct. 1285.

Citing Patterson v. Illinois, 487 U.S. 285, 108S.Ct. 2389, 101 L.Ed.2d 261 (1988), Fellersargues that the officers' failure to administer theMiranda warnings at his home violated his sixthamendment right to counsel inasmuch as theencounter constituted a post-indictmentinterview. Patterson is not applicable here,however, for the officers did not interrogateFellers at his home.

Finally, we conclude that the record amplysupports the district court's finding that Fellers's

jailhouse statements were knowingly andvoluntarily made following the administrationof the Miranda warning. See Elstad, 470 U.S.at 314-15, 105 S.Ct. 1285; Robinson, 20 F.3d at

322. Accordingly, the district court did not err

in denying the motion to suppress the statementsmade at the jail.

III.

Fellers argues that the district court should not

have admitted methamphetamine seized from a

co-conspirator. We review under an abuse of

discretion standard a district court's rulings on

the admissibility of evidence. We find no abuse

of discretion here, for the evidence established

that the seized drugs were part of the on-going

conspiracy for which Fellers was prosecuted.

United States v. Maynie, 257 F.3d 908, 915 (8th

Cir.2001).

Fellers next argues that the district court erred in

limiting his cross examination of a witness.

"Absent a clear abuse of discretion and a

showing of prejudice, we will not reverse a

district court's ruling limiting cross-

examination of a prosecution witness on the

basis that it impermissibly infringed [the

defendant's] right of confrontation." United

States v. Stewart, 122 F.3d 625, 627 (8th

Cir.1997). The record reveals that Fellers was

allowed to cross-examine the witness about the

issues with which he was concerned, and thus

we find no abuse of discretion in the district

court's ruling.

Fellers contends that the evidence was

insufficient to support the verdict. "When

reviewing the sufficiency of the evidence, we

view the evidence in the light most favorable to

the verdict and give the government the benefitof all reasonable inferences. We will reverse'only if a reasonable jury must have had a

reasonable doubt that the elements of the crimewere established.' " United States v. Santana,150 F.3d 860, 864 (8th Cir.1998) (quotingUnited States v. Carlisle, 118 F.3d 1271, 1273(8th Cir. 1997)) (internal quotations and citationsomitted). Fellers's argument rests almostentirely on his assertion that the testimony of hisco- conspirators was not credible and shouldhave been disregarded. "Assessing thecredibility of witnesses is a matter properly leftto the jury." Santana, 150 F.3d at 864 (citingUnited States v. Anderson, 78 F.3d 420, 422-23(8th Cir. 1996)). The jury heard testimony frommultiple witnesses that they bought from andsold to Fellers methamphetamine, includingtestimony that the quantities sold to Fellers weresufficient for redistribution to others. This

196

testimony was sufficient to support Fellers'sconviction.

Fellers contends that the court erred in denyinghis motion for a new trial based upon newlydiscovered evidence.

We review under an abuse of discretionstandard the denial of a motion for a new trial.A defendant is entitled to a new trial based onnewly discovered evidence only if he can show(1) that the evidence was not discovered untilafter the trial; (2) that due diligence would nothave revealed the evidence; (3) that theevidence is not merely cumulative orimpeaching; (4) that the evidence is material;and (5) that the evidence is such as to be likelyto lead to acquittal.

United States v. Zuazo, 243 F.3d 428, 431 (8thCir.2001) (citing Lindhorst v. United States,658 F.2d 598, 602 (8th Cir.1981)). Because thenew evidence Fellers points to is merelyimpeachment evidence, the district court did notabuse its discretion in denying the motion.IV.

Fellers's remaining arguments concern allegederrors committed in calculating his sentenceunder the Sentencing Guidelines.

Fellers argues that the district court erred incalculating the amount of drugs for which hewas responsible. "We review a district court'sdrug quantity calculations for clear error, andwe will reverse only if our examination of theentire record 'definitely and firmly convinces usthat a mistake has been made."' Santana, 150F.3d at 864 (quoting United States v. Moss, 138F.3d 742, 745 (8th Cir.1998)). The jury foundthat Fellers was responsible for at least 50 butless than 500 grams of methamphetamine. Thedistrict court determined that the quantity ofmethamphetamine that was reasonablyforeseeable to Fellers during the course of theconspiracy was more than 500 grams but less

than 1.5 kilograms, a finding that we conclude isnot clearly erroneous. Fellers argues that eventhough his sentence does not exceed thestatutory maximum allowable under the jury'sverdict, the sentence should be reversed becauseit is based upon a finding of drug quantity thatexceeds that found by the jury. Fellersacknowledges that Apprendi v. New Jersey, 530U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435(2000), does not require such a result, and wedecline to extend Apprendi to encompassFellers's situation. As we held in United Statesv. Hollingsworth, 257 F.3d 871, 878 (8thCir.200 1), it is "proper for the sentencing judgeto then make more exact calculations forpurposes of computing the offense level underthe guidelines and determining where thesentence will actually fall within the statutoryrange determined by the jury's verdict."

Fellers contends that the district court erred infinding that his criminal history category did notadequately reflect the seriousness of his pastcriminal conduct. We review the district court'sdeparture from the Sentencing Guidelines for anabuse of discretion. United States v. Payne, 940F.2d 286, 293 (8th Cir.1991). The court maydepart upward if "reliable information indicatesthat the criminal history category does notadequately reflect the seriousness of thedefendant's past criminal conduct or thelikelihood that the defendant will commit othercrimes." U.S.S.G. § 4Al.3. Without recountingthe details of Fellers's past criminal conduct, weconclude that the district court did not abuse itsdiscretion in determining that an upwarddeparture was warranted.

Fellers challenges district court's denial of hismotion for downward departure. So long as adistrict court is aware of its authority to departdownward, as it clearly was in this case, itsrefusal to exercise its discretion to depart fromthe applicable guideline range is unreviewable,United States v. Evidente, 894 F.2d 1000, 1004-05 (8th Cir.1990), and thus Fellers's challenge

197

fails.

Finally, Fellers argues that the district courterred in denying him a two-level reduction as aminor participant. "[W]hether a defendantqualifies for a minor participant reduction is aquestion of fact, the determination of which wereview for clear error." United States v. Alverez,235 F.3d 1086, 1090 (8th Cir.2000) (quotingUnited States v. Hale, I F.3d 691, 694 (8thCir.1993)). Fellers argues that he was lessculpable than other participants because themajority of the evidence showed him asreceiving the drugs, not distributing them.There was sufficient evidence indicating thatFellers had a larger role in the conspiracy thanbeing a mere user, however, and thus the districtcourt did not err in finding that Fellers was not aminor participant in the conspiracy.

The judgment is affirmed.

RILEY, Circuit Judge, concurring.

In all respects but one, I concur in the Court'swell-reasoned opinion. My disagreement, whichdoes not affect the ultimate resolution of thiscase, concerns whether the arresting officersviolated Fellers's right to counsel under theSixth Amendment.

Because Fellers was under indictment at thetime of his arrest, he had a constitutional right tothe presence of counsel during policeinterrogation. Massiah v. United States, 377

U.S. 201, 205-06, 84 S.Ct. 1199, 12 L.Ed.2d246 (1964). For purposes of this right, aninterrogation takes place when agents of lawenforcement deliberately attempt to elicitincriminating information from the indicteddefendant. See id at 206, 84 S.Ct. 1199.Although the officers in this case did not askFellers any questions, they deliberately elicitedincriminating information by telling Fellers theywanted to discuss his involvement in the use anddistribution of methamphetamine. This post-indictment conduct outside the presence ofcounsel violated Fellers's right to counsel underthe Sixth Amendment. See United States v.Henry, 447 U.S. 264, 270-71, 100 S.Ct. 2183,65 L.Ed.2d 115 (1980); Brewer v. Williams, 430U.S. 387, 399-401, 97 S.Ct. 1232, 51 L.Ed.2d424 (1977); cf Rhode Island v. Innis, 446 U.S.291, 300-02 & 300 n. 4, 100 S.Ct. 1682, 64L.Ed.2d 297 (1980).

Nevertheless, I do not believe this constitutionalviolation takes Fellers's case outside therationale of Oregon v. Elstad, 470 U.S. 298, 105S.Ct. 1285, 84 L.Ed.2d 222 (1985). TheSupreme Court "has never held that thepsychological impact of voluntary disclosure ofa guilty secret ... compromises the voluntarinessof a subsequent informed waiver." Id. at 312,105 S.Ct. 1285. Fellers knowingly andvoluntarily waived his Sixth Amendment rightsat the jail, and his subsequent statements werethus admissible at his criminal trial.Accordingly, I concur in the judgment of theCourt.

198

High Court to Revisit Miranda

The Tucson Citizen

March 11, 2003

A.J. Flick

The extent to which police officers mayquestion a suspect without first reciting thenow-familiar "Miranda rights" is at issue as theU.S. Supreme Court considers a Nebraska drugcase that challenges the 37-year-old ruling.

The original ruling came in an Arizona case.

"I've been a police officer since 1958, before wehad Miranda," said Pima County SheriffClarence Dupnik, "and for those out thereinterrogating, there's been a feeling thateventually, interrogation is going to be a lost art.And in my judgment, it has (become one)."

For defense attorneys, the announcementyesterday that the justices will consider anappeal by a man who claims he was tricked intoconfessing to authorities is good news.

"Normally, they don't accept appeals fromdefendants," said Tucson attorney Michael L.Piccarreta. "The Supreme Court hastraditionally been pro-government. The fact thatthey've accepted this case bodes well fordefendants. They may wish to decide the issuefor the whole country as to whether a secondMirandized confession covers the first un-Mirandized confession."

The case the Supreme Court will considerinvolves John J. Fellers of Lincoln, Neb., whoclaims he was chatting with officers at his homeand because of his ease with one officer, freelyadmitted being involved with illegal drugs afterhaving some personal problems.

Fellers had been under indictment, but says hewas not told by officers that they were there toarrest him and he was not given his Mirandarights, which state that suspects "have the rightto remain silent" when questioned by police.

University of Texas law professor Susan Kleinsaid the situation is played out around thecountry as officers try to elicit a confession froma suspect, catching him off guard, withoutgiving a Miranda warning.

If Fellers wins, Klein said, "Police officers canno longer intentionally circumvent Miranda byquestioning first, getting a statement, thensaying, 'Oh, by the way, now that you've spilledthe beans, here's your rights.' "

If Fellers loses, officers will have more freedomto question suspects without bringing upMiranda, she said.

Fellers maintains that his constitutional rightswere violated during the home interview andagain when he talked to police at the jail afterbeing advised of his rights. He said the firstquestioning tainted the later jailhouseinterrogation, during which he confessed.

"What this (Miranda) decision and others like itdo is make billions of dollars for the legalprofession, the legal community," Dupnik said.

"Why should we do things to make guiltypeople not tell the truth? What Miranda hasdone is taken a bill of rights and turned it into a

199

bill of duties and created an incrediblyexpensive system."

Piccarreta said Miranda is not a burden toauthorities.

"Miranda has worked well for everybody for thelast 30 years," Piccarreta said. "It hasn't been aburden to police. They know what they have todo.

"One would think it's only common sense that ifyou have an un-Mirandized statement, thattaints any other statement. You don't have to bea lawyer to figure that out. This could be achance for the court to restate the obvious: Thatyou have to Mirandize the statement of anindividual that you are arresting or intend toarrest. That's not too much to ask of cops.They'll do it."

The Miranda warning takes its name from theSupreme Court's ruling in a 1966 case involvingthe use of a confession in Maricopa County inthe prosecution of Ernesto Miranda, who wasaccused of rape.

Three years ago the Supreme Court reaffirmed

in a 7-2 decision that police must warn thepeople they arrest of their right to remain silentwhen questioned. Suspects must be told thatanything they say may be used against them,they can remain silent or have a lawyer's helpwhile answering, and that a lawyer will beappointed to help them if they cannot afford tohire one.

A decision is expected soon from the SupremeCourt in another police interrogation case, thisone involving the questioning of a woundedfarmworker who was shot repeatedly by policeand then subjected to a lengthy interrogation ashe awaited medical treatment.

The worker was never told of his Miranda rightto remain silent, and he said a sergeant keptquestioning him even after he said that he didnot want to answer.

The question before the court in this case iswhether the worker may sue the officer fordamages on grounds that his constitutional rightagainst self-incrimination was violated.

The Associated Press contributed to this report.

200

Inmate Takes Case to High Court Without Lawyer

Omaha World-Herald

March 11, 2003

Robynn Tysver

Without the help of a lawyer, a formerNebraska man has persuaded the U.S. SupremeCourt to review his drug conviction.

John J. Fellers, originally from Lexington,Neb., is serving a 12-year sentence forconspiracy to distribute methamphetamine.

Acting as his own attorney, Fellers argued inbriefs filed with the nation's high court thatLincoln police improperly obtained statementsfrom him prior to his arrest and withoutinforming him of his constitutional rights.

This is not the first time an inmate has taken acase to the high court through a "pauper" appealand without a lawyer, but it is rare for the courtto agree to hear such appeals.

Perhaps the best known example is ClarenceGideon, a Florida inmate who filed ahandwritten appeal in 1963. That case, Gideonvs. Wainwright, established that all Americansaccused in criminal cases have the right to legalcounsel.

Fellers, 40, is currently in a Minnesotapenitentiary. He was convicted in U.S. DistrictCourt in Omaha.

"It is clear that once a defendant is indicted,the government may not deliberately elicitinformation from him without the presence ofcounsel," Fellers wrote in his appeal. Hismother, Beverley Fellers of Lexington, said herson always had good writing skills. She said he

has a high school diploma but has never gone tocollege.

"He has always written, so I'm not surprised atthis," she said.

At issue in the Fellers case is when police mustnotify the accused of their "Miranda rights" - therights to remain silent and to have an attorneypresent during police interrogations.

Those rights were established in a landmark1966 ruling involving the use of a confession inthe prosecution of Ernesto Miranda on rapecharges.

Fellers said that in February 2000, police wentto his home in Lincoln to arrest him forallegedly dealing in drugs. He let the police intohis home.

They told him about his indictment on the drugcharge, he argued, but they did not tell him theyplanned to arrest him. Fellers said police toldhim they wanted to discuss his involvement in ameth ring.

Fellers told police that he had associated withsome people in the ring and that he had usedmeth. He said that at no time during thisconversation was he informed of his Mirandarights.

At the police station, Fellers signed a Mirandawaiver form and agreed to talk to police. Herepeated the statement he made at his home.

201

Later, in court, Fellers tried to have bothstatements suppressed.

A magistrate judge initially agreed, saying thepolice officers used deceptive tactics to promptthe first statement.

However, U.S. District Judge Lyle Stromsuppressed Fellers' first statement but allowedthe second - the one made at the police station -to be used at his trial.

Fellers was convicted of conspiring todistribute and possess between 50 and 500grams of methamphetamine.

A three-judge panel of the 8th U.S. CircuitCourt of Appeals rejected Fellers' appeal and

affirmed his conviction last year.

"The record amply supports the district court'sfinding that Fellers' jailhouse statements wereknowingly and voluntarily made following theadministration of the Miranda warning," wroteChief Judge Roger Wollman.

Fellers then filed his appeal to the U.S.Supreme Court. It is unknown when oralarguments in the case will be scheduled, and itis likely that the high court will appoint a lawyerfor Fellers.

In 1988, a Douglas County district judgesentenced Fellers to two to five years in prisonfor manslaughter in the accidental shooting of afriend during a game with a gun.

202

Opinion

The Gazette

March 20, 2003

The U.S. Supreme Court has agreed to heara rather unusual case regarding the famousMiranda statement of rights police aresupposed to recite to suspects, named after a1966 case that introduced the requirement.It's the "you have the right to remain silent,anything you say can and will be usedagainst you ..." phrase that is now echoed sooften in movie and TV scripts featuringpolice.

John J. Fellers didn't use an attorney to filehis appeal from prison. He even filed as a''pauper" so he wouldn't have to pay courtcosts. Against the odds, the Supreme Courtwill hear his case (though it will probablyappoint an attorney to argue it for him). It'san interesting case.

Some officers visited him in his home inLincoln, Neb., and he knew one of themfrom working together as hospitalvolunteers. When they asked him,apparently casually and informally, aboutgetting into trouble with drugs after hismarriage broke up and his business wentsouth, he talked openly. What Fellers didn'tknow, and what the officers didn't tell him,was that they already had an indictment inhand charging him with methamphetaminedistribution.

After they had elicited incriminating

information from him, they arrested him andthen read him his rights, after which he toldthem again what he had told them before.Once in prison, Fellers decided his secondconfession, which was admitted intoevidence at the trial, shouldn't have been,because he never would have made it if hehad been informed of his rights and that hewas a suspect in the first place. The 8thCircuit Court disagreed, arguing that hissecond confession was given after the policehad followed proper procedures. TheSupreme Court could decide otherwise.

"Because he had already been indicted, henot only had the right to remain silent, hehad a right to have an attorney present whenthe police first talked to him," saysUniversity of Southern California lawprofessor Erwin Chemerinsky. "I realize it'sa close call on the post-Miranda confession,but my fear is that if this conviction is notoverturned the police will have strongincentives to find clever ways to circumventthe Miranda requirements."

We're inclined to agree, though our opinioncould be modified if new informationemerges. But if this practice of questioningfirst and reading rights later is widespread,as University of Texas law professor SusanKlein contends, it should be curbed.

203

Dickerson v. United States: Miranda is deemed a Constitutional Rule, but does it ReallyMatter?

Arkansas Law Review

2002

Conor G. Bateman

[Excerpt; footnotes omitted]

While Brown v. Illinois addressed an issue "atthe crossroads of the Fourth and FifthAmendments," the issue of the "fruits" doctrineand a voluntary confession under the FifthAmendment was squarely presented to theSupreme Court in the 1985 case of Oregon v.Elstad.263 In Elstad, an eighteen-year-old malewas suspected of burglary, and police detectiveswent to his house with a warrant for his arrest.When the officers arrived at the defendant'shome, one officer took the defendant's motherinto the kitchen, while the other officerquestioned him in the living room. When thedetective asked the defendant if he knewanything about the burglaries, he stated: "Yes, Iwas there." The defendant was then taken to thepolice station, where he was read his Mirandarights for the first time and made a full andvoluntary statement to the detectives, which heread and signed.

Elstad moved to suppress both of hisstatements to the police-the statement he madein his living room before he was read hisMiranda rights and the full statement made atthe police station after he was read his Mirandarights. Elstad asserted that the second statement

was "fruit" of the "poisonous tree" that resultedfrom the detectives failing to deliver theMiranda warnings before his response to thedetectives' questions in his living room. Thetrial judge excluded the first confession becauseof the detectives' failure to administer theMiranda warnings, but allowed the secondconfession into evidence. The trial judge basedthis ruling on the fact that once Elstad was readhis Miranda warnings, he was fully apprised ofhis rights, and the taint was sufficiently purged.Thus, suppression of the first statement was asufficient remedy to protect Elstad'sconstitutional rights. The Oregon Court ofAppeals reversed Elstad's conviction. Itconcluded that the "cat was sufficiently out ofthe bag" after the first confession and that therewas an inherently coercive atmosphere duringthe second confession, which indicated that it,too, should be suppressed.

The Supreme Court disagreed with the rulingof the Oregon Court of Appeals, finding that thecourt had misconstrued the protective nature ofthe Miranda decision . The Court noted thatFourth Amendment violations require adifferent application of the exclusionary rulethan do Miranda violations, by stating: "[T]heexclusionary rule, . . . when utilized toeffectuate the Fourth Amendment, servesinterests and policies that are distinct from thoseit serves under the Fifth." The Court found thatwhere a Fourth Amendment violation "taints theconfession," "a finding of voluntariness for the

204

263 470 U.S. 298 (1985).

purposes of the Fifth Amendment is merely athreshold requirement in determining whetherthe confession may be admitted into evidence."Subsequent to this threshold determination, theprosecution would also have to show there wasa "sufficient break" in the causal chain to defeatthe presumption "that the confession was causedby the Fourth Amendment violation."

The Court differentiated the Mirandaexclusionary rule by stating that it "serves theFifth Amendment and sweeps more broadlythan the Fifth Amendment itself." The FifthAmendment prohibits the prosecution fromusing compelled testimony in its case; thefailure to administer Miranda warnings "createsa presumption of compulsion." Ultimately, theCourt concluded that the simple failure toadminister the Miranda warnings did not per se"taint" the entire investigatory process andrender any subsequent, voluntary statementsinadmissible. This conclusion was largelybased on the fact that the Miranda rules werejudicially created and were only "prophylacticstandards" intended to safeguard the suspect'sFifth Amendment privilege, and were not aconstitutionally mandated standard. The ElstadCourt held that while Miranda did require thatthe first statement be suppressed, the analysis ofwhether to suppress subsequent statementsshould turn on whether they were knowinglyand voluntarily made. The Court further foundthat absent deliberate, coercive, or impropertactics used to obtain the first statement, themere fact that a suspect made an unwamedadmission did not warrant a presumption ofcompulsion.

The following question thus remained afterElstad: Were other types of derivative evidence,such as witness testimony and physicalevidence, admissible if there had been atechnical violation of the Miranda rules during asuspect's voluntary statements to police?

The Supreme Court has not yet decided this

issue. However, numerous lower federal courts,and most commentators, believe that evidencediscovered as a result of a tainted confession isadmissible, and therefore, the "fruits" of theconfession may still be admitted into evidence.The Dickerson case presented a factual issuealong these lines. While the Supreme Court'sopinion was devoted to the constitutionality of §3501, the Court may have taken one step closerto making a clear decision on the issue of thevoluntary confession as a "poisonous tree."Legal commentators and scholars had beenquestioning for some time what Miranda'sproper place was in modem Americanjurisprudence. The answer to this question wasprovided when the Supreme Court rendered itsdecision in Dickerson v. United States.

IV. ANALYSIS

In Oregon v. Elstad, the Supreme Court heldthat a failure to administer the Mirandawarnings to the defendant required suppressionof his first confession.328 However, thedefendant's second confession was notsuppressed because it came after the Mirandawarnings had been properly administered. As itdid in Quarles and Tucker, the Court noted thata Fourth Amendment violation requires a"broad application of the 'fruits' doctrine,"whereas a Miranda violation is treateddifferently from a Fourth Amendment violation.The Court held that Miranda created a"presumption of compulsion," and thus,otherwise voluntary statements requiredexclusion in light of a failure to give thewarnings.

Clearly then, Elstad's first statement to thepolice required suppression. However, whilethe Court held that the Miranda presumptionwas irrebuttable for the prosecution's case inchief, it certainly did "not require that the

32 Elstad, 470 U.S. at 318.

205

statements and their fruits be discarded asinherently tainted." The Court found that thetwo rationales for the purpose of theexclusionary rule-trustworthiness anddeterrence-would not be served by broadeningthe scope of the rule when the evidence soughtto be excluded was the "fruit" of a Mirandaviolation. Once the suspect had been given therequired Miranda warnings, if he then madevoluntary statements to the police, there wouldbe no basis to exclude those statements. Whenthe warnings were administered they 'would"cure the condition that rendered the unwarnedstatement inadmissible," and any statementsmade by the defendant after that would"ordinarily be viewed as an 'act of free will."'

The Elstad majority directed courts not toestablish a rigid rule in determining thevoluntariness of confessions. Instead, whenthere has been a technical violation of Miranda,the Court found that there is no basis to presumethat the statement given was the product ofcoercion, if it was made voluntarily. The Courtfelt that the purposes of the Miranda decisionand the Fifth Amendment were satisfied whenthe statement obtained in technical violation ofMiranda was barred from use against thedefendant. However, the Court stated that "[n]ofurther purpose" would be served by "imputing'taint' to subsequent statements obtainedpursuant to a voluntary and knowing waiver."Thus, Elstad clearly stands for the propositionthat if a voluntary statement was obtained inviolation of Miranda then it must be suppressed.However, once the warnings are administered,this seems to be sufficient to purge any taint thatmay have occurred by the failure to deliver thewarnings. Therefore, while the voluntarystatements required suppression, it is clear thatunless there was some actual coercion presentduring the interrogation, then the derivative"fruits" could still be admitted into evidence ifthe taint had been sufficiently purged. Thefollowing passage from the Elstad opinion is ofprimary importance:

It is an unwarranted extension of Miranda tohold that a simple failure to administer thewarnings, unaccompanied by any actualcoercion or other circumstances calculated toundermine the suspect's ability to exercise hisfree will, so taints the investigatory process thata subsequent voluntary and informed waiver isineffective for some indeterminate period.Though Miranda requires that the unwarnedadmission must be suppressed, the admissibilityof any subsequent statement should turn in thesecircumstances solely on whether it is knowinglyand voluntarily made.

Prior to Dickerson, this proposition wasseemingly based on the fact that Miranda wasmerely a "prophylactic rule," and that there hadbeen no concrete statement from the Court thatMiranda was a constitutional mandate.However, in Dickerson the Court held thatMiranda did in fact announce a constitutionalrule. Now that the Supreme Court has declaredMiranda to be a constitutional rule, it wouldseem that the failure to adequately deliver thewarnings to a suspect in custody would be a"primary illegality." Therefore, failure todeliver the warnings would require suppressionof the defendant's statements and all subsequentevidence obtained thereafter. However, uponcloser inspection, this may not be the casebecause of the Supreme Court's differentialtreatment of Fourth and Fifth Amendmentviolations.

206

02-1183 United States v. Patane

Ruling Below: (10th Cir., 304 F.3d 1013, 71 U.S.L.W. 1192, 71 Crim. L. Rep. 675)

Physical evidence discovered through statements elicited in violation of Miranda v. Arizona, 384U.S. 436 (1966), is subject to Fifth Amendment's exclusionary rule, even if statements were notcoerced.

Question Present Does failure to give suspect warnings prescribed by Miranda v. Arizonarequire suppression of physical evidence derived from suspect's unwarned but voluntarystatement?

UNITED STATES of America, Plaintiff-Appellant,V.

Samuel Francis PATANE, Defendant-Appellee.

United States Court of AppealsFor the Tenth Circuit

Decided September 17, 2002.

[Excerpt;omitted.]

some footnotes and citations

EBEL, Circuit Judge.

The Government appeals from the districtcourt's order suppressing the physicalevidence against Samuel Francis Patane oncharges of gun possession by a felon. Thedistrict court based its suppression order onits conclusion that the evidence wasinsufficient to establish probable cause toarrest Patane. We conclude, contrary to thedistrict court, that probable cause existed toarrest Patane. However, we affirm thedistrict court's order on the alternativeground that the evidence must be suppressedas the physical fruit of a Miranda violation.

I. BACKGROUND

Patane was indicted for possession of afirearm by a convicted felon in violation of

18 U.S.C. § 922(g)(1). The district courtheld a suppression hearing at which thepolice investigation leading to discovery ofthe gun was detailed. Ruling from the bencha week later, the court granted defendant'smotion to suppress. Patane's arrest resultedfrom the intersection of two essentiallyindependent investigations - one byColorado Springs Detective Josh Bennerregarding Patane's gun possession, andanother by Colorado Springs Officer TracyFox regarding Patane's violation of adomestic violence restraining order.

[Officer Tracy responded to a complaint byLinda O'Donnell, Patane's ex-girlfriend,that he violated his temporary restrainingorder by calling her. Detective Benner hadbeen contacted by an ATF agent who hadlearned Patane possessed a gun.]

Detective Benner and Officer Fox thenspoke by phone. Officer Fox said she

207

planned to arrest Patane for violating therestraining order by calling O'Donnell, andthe two arranged to go to Patane's house.Officer Fox knocked on the door whileDetective Benner went out back in casePatane attempted to flee. The woman whoanswered the door summoned Patane.Officer Fox asked Patane to step outside,which he did. She asked him about the hang-up call, and Patane denied having made thecall or having contacted O'Donnell in anyway. Officer Fox told Patane that he wasunder arrest and handcuffed him shortlyafterward.

With Patane arrested and handcuffed,Detective Benner emerged from the back ofthe house and approached Patane. DetectiveBenner began advising Patane of hisMiranda rights, but only got as far as theright to silence when Patane said that heknew his rights. No further Mirandawarnings were given, a fact which theGovernment concedes on appeal resulted ina Miranda violation. Detective Benner toldPatane he was interested in what gunsPatane owned. Patane replied, "That .357 isalready in police custody." Detective Bennersaid, "I am more interested in the Glock."Patane said he was not sure he should tellDetective Benner about the Glock pistolbecause he did not want it taken away.Detective Benner said he needed to knowabout it, and Patane said, "The Glock is inmy bedroom on a shelf, on the woodenshelf." Detective Benner asked forpermission to get the gun, which Patanegranted, and Detective Benner went inside,found the gun where Patane described, andseized it. Detective Benner then told Patane,as the detective later testified, that "I wasn'tgoing to arrest him for the gun at this timebecause I wanted to do some moreinvestigations." Officer Fox took Patane tothe police station and booked him forviolating the restraining order.

The next day, Detective Benner met withPatane's probation officer and verified thatPatane had a prior felony conviction fordrug possession as well as a misdemeanorthird degree assault conviction.

II. PROBABLE CAUSE

On appeal, the Government argues that thedistrict court erred in concluding that thepolice lacked probable cause to arrest Patanefor violating the domestic violencerestraining order. We agree with theGovernment.

* * * We have articulated the substantiveprobable cause standard as follows:

An officer has probable cause to arrest if,under the totality of the circumstances, helearned of facts and circumstances throughreasonably trustworthy information thatwould lead a reasonable person to believethat an offense has been or is beingcommitted by the person arrested.Probable cause does not require factssufficient for a finding of guilt; however, itdoes require more than mere suspicion.

United States v. Morris, 247 F.3d 1080,1088 (10th Cir.2001) (internal quotationmarks and citations omitted).

The district court's ruling that no probablecause existed to arrest Patane for violatingthe domestic violence restraining order wasbased on its view that domestic disputesoften involve "claims and counterclaims ...thrown between people who have separatedsome sort of an intimate relationship," andtherefore that uncorroborated allegationsarising from such disputes are "justinadequate" to establish probable cause.

[The district court listed "unexploredavenues of corroboration" to support its

208

claim that the police did not have probablecause to arrest Patane.]

We reject any suggestion that victims ofdomestic violence are unreliable witnesseswhose testimony cannot establish probablecause absent independent corroboration. Wehave stated, "when examining informantevidence used to support a claim of probablecause for a ... warrantless arrest, theskepticism and careful scrutiny usuallyfound in cases involving informants,sometimes anonymous, from the criminalmilieu, is appropriately relaxed if theinformant is an identified victim or ordinarycitizen witness." Easton v. City of Boulder,776 F.2d 1441, 1449 (10th Cir.1985); seealso Guzell v. Hiller, 223 F.3d 518, 519-20(7th Cir.2000).

We find no basis for the suggestion thatdomestic violence victims are undeservingof the presumption of veracity accordedother victim-witnesses. Indeed, our decisionin Easton forecloses such a position. InEaston, probable cause to arrest for childmolestation was based on the accusations oftwo child witnesses, one five years old andthe other three years old. We rejected as "anentirely unacceptable point of view" theargument that the children's testimony wassuspect, stating:

In a great many child molestation cases,the only available evidence that a crimehas been committed is the testimony ofchildren. To discount such testimony fromthe outset would only serve to discouragechildren and parents from reportingmolestation incidents and to unjustlyinsulate the perpetrator of such crimesfrom prosecution.

Easton, 776corroborationviolence cases

F.2d at 1449. A strictrequirement in domesticwould create precisely the

same proof problems we found dispositivein Easton.

[The court notes that "neither the districtcourt nor Patane point to any evidence in therecord suggesting that O'Donnell lied aboutthe purported hang-up call."]

In any event, we note that the officers heredid corroborate O'Donnell's veracity in tworespects. First, the district court found asfact that, prior to the arrest, DetectiveBenner had learned from a probation officerthat Patane possessed a gun. Second, OfficerFox verified that a restraining order hadbeen issued against Patane. The mere factthat further corroboration was possible is notdispositive of whether the informationavailable would lead a reasonable person tobelieve that an offense had been committed.

[The court dismisses Patane's argument that"as a matter of law, a single hang-up phonecall could not constitute a violation of therestraining order." It concludes that"probable cause does not require certainty ofguilt or even a preponderance of evidence ofguilt, but rather only reasonably trustworthyinformation that would lead a reasonableperson to believe an offense was committed.Morris, 247 F.3d at 1088. The possibilitythat the hang-up call here was accidentaldoes not defeat probable cause."]

Accordingly, we conclude that Patane'sarrest was supported by probable cause tobelieve that Patane had violated thedomestic violence restraining order.I

In light of our conclusion that the officers hadprobable cause to arrest for violation of therestraining order, it is unnecessary to reach theGovernment's alternative argument that the arrest wasjustified by probable cause to believe that Patane wasa felon in possession of a gun. The district courtdeclined to decide whether the officers had probablecause to arrest on the basis of Patane's gun violation.*** On appeal, the Government argued that this

209

III. SUPPRESSION OF THE PHYSICALFRUITS OF A MIRANDA VIOLATION

Our conclusion that the district courterroneously based suppression of the gun onthe absence of probable cause to arrest doesnot end our inquiry. Patane argues thatsuppression of the gun should be affirmedbecause, even if the arrest was proper, theensuing Miranda violation independentlyrequires suppression of the physicalevidence,

The district held, and the Governmentconcedes on appeal, that a Mirandaviolation occurred when the policequestioned Patane about his possession of agun without administering the completeMiranda warnings. As explained above, thisquestioning led Patane to admit that hepossessed a gun in his bedroom, whichadmission in turn led immediately to seizureof the gun. The Government correctlyconcedes that Patane's admissions inresponse to questioning were inadmissibleunder Miranda, but argues that the physicalfruit of the Miranda violation - the gun - isadmissible.

The district court determined that it wasunnecessary to decide whether the physicalfruits of a Miranda violation must besuppressed because it had concluded that theunderlying arrest that led to the confessionwas unconstitutional. Because we havereversed the conclusion that the arrest was

reasoning is foreclosed by United States v. Santana-Garcia, 264 F.3d 1188, 1192-93 (10th Cir.2001)(officer's subjective belief as to non- existence ofprobable cause not dispositive); see also Treto-Haro,287 F.3d at 1006 (same). Patane correctly concededthat the district court's reasoning was erroneous in

light of our precedent, and on appeal he argued onlythat the officers lacked probable cause to believe thathe was a felon in possession of a gun. The districtcourt did not reach this issue, and we decline to do soin the first instance on appeal.

unconstitutional, we are now squarelypresented with the issue whether the gunshould be suppressed in any event because itwas obtained as the fruits of anunconstitutionally obtained confession. ***Below, we conclude that the physicalevidence that was the fruit of the Mirandaviolation in this case must be suppressed.

A. Supreme Court precedent

The Government relies primarily on twoSupreme Court cases for its argument thatthe fruits doctrine does not apply to Mirandaviolations: Michigan v. Tucker, 417 U.S.433, 445-46, 94 S.Ct. 2357, 41 L.Ed.2d 182(1974), and Oregon v. Elstad, 470 U.S. 298,306, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985).Both cases, it is true, declined to apply thefruits of the poisonous tree doctrine of WongSun v. United States, 371 U.S. 471, 485, 83S.Ct. 407, 9 L.Ed.2d 441 (1963), to suppressevidence obtained from an un-Mirandizedconfession. However, both cases werepredicated upon the premise that theMiranda rule was a prophylactic rule, ratherthan a constitutional rule. Elstad, 470 U.S. at305, 105 S.Ct. 1285 ("'The prophylacticMiranda warnings are not themselves rightsprotected by the Constitution ...."' (quotingNew York v. Quarles, 467 U.S. 649, 654,104 S.Ct. 2626, 81 L.Ed.2d 550 (1984))(internal quotation marks omitted)); id at308, 105 S.Ct. 1285 ("Since there was noactual infringement of the suspect'sconstitutional rights, [Tucker] was notcontrolled by the doctrine expressed inWong Sun that fruits of a constitutionalviolation must be suppressed." (emphasisadded)); Tucker, 417 U.S. at 445-46, 94S.Ct. 2357 (distinguishing Wong Sunbecause "the police conduct at issue here didnot abridge respondent's constitutionalprivilege against compulsory self-incrimination, but departed only from theprophylactic standards later laid down by

210

this Court in Miranda to safeguard thatprivilege"). Because Wong Sun requiressuppression only of the fruits ofunconstitutional conduct, the violation of aprophylactic rule did not require the sameremedy.

However, the premise upon which Tuckerand Elstad relied was fundamentally alteredin Dickerson v. United States, 530 U.S. 428,120 S.Ct. 2326, 147 L.Ed.2d 405 (2000). InDickerson, the Supreme Court declared thatMiranda articulated a constitutional rulerather than merely a prophylactic one. Id at444, 86 S.Ct. 1602 ("Miranda announced aconstitutional rule that Congress may notsupersede legislatively."); see id at 432,438, 440, 86 S.Ct. 1602. Thus, Dickersonundermined the logic underlying Tucker andElstad.

Additionally, a close reading of Tucker andElstad reveals other distinctions that lead usto conclude that those cases should not begiven the sweeping reading the Governmentis asserting. ***

Tucker involved an un-Mirandized custodialinterrogation that occurred prior to theissuance of the Miranda decision. Duringthe course of the interrogation, the defendantidentified a relevant witness of whom thepolice previously had been ignorant. Thedefendant argued before the Court that thetestimony of the witness so identified by thedefendant should have been barred as thefruit of the Miranda violation. The Court'srejection of this argument rested largely onits conclusion that excluding the fruits ofthis confession would have minimalprophylactic effect because the officers wereacting in complete good faith underprevailing pre-Miranda law that barred onlycoerced confessions. * * *

The other Supreme Court case offered bythe Government to support its argument isElstad, 470 U.S. at 306, 105 S.Ct. 1285. InElstad, the defendant made incriminatingstatements while in custodial interrogationprior to the issuance of Miranda warnings.The police then administered Mirandawarnings, and thereafter the defendant madefurther incriminating statements. The issuein Elstad was whether the defendants post-Mirandized statements must be suppressedas the fruit of the earlier Miranda violation.Id. at 303, 105 S.Ct. 1285. The SupremeCourt held that suppression was notrequired, rejecting the view that the post-warning statements were theunconstitutional product of "a subtle form oflingering compulsion, the psychologicalimpact of the suspect's conviction that hehas let the cat out of the bag." Id. at 311, 105S.Ct. 1285. After repeating the now-suspectreasoning that a Miranda violation was notnecessarily a constitutional violation andthus not controlled by the fruits doctrine ofWong Sun, the Court stated:

[T]he Miranda presumption, thoughirrebuttable for purposes of theprosecution's case in chief, does notrequire that the statements and their fruitsbe discarded as inherently tainted......... In deciding how sweeping thejudicially imposed consequences of afailure to administer Miranda warningsshould be, the Tucker Court noted thatneither the general goal of deterringimproper police conduct nor the FifthAmendment goal of assuring trustworthyevidence would be served by suppressionof the witness' testimony. The unwarnedconfession must, of course, be suppressed,but the Court ruled that introduction of thethird-party witness' testimony did notviolate Tucker's Fifth Amendment rights.We believe that this reasoning applies withequal force when the alleged "fruit" of a

211

noncoercive Miranda violation is neither awitness nor an article of evidence but theaccused's own voluntary testimony. As inTucker, the absence of any coercion orimproper tactics undercuts the twinrationales - trustworthiness and deterrence- for a broader rule. Once warned, thesuspect is free to exercise his own volitionin deciding whether or not to make astatement to the authorities. The Court hasoften noted: A living witness is not to bemechanically equated with the proffer ofinanimate evidentiary objects illegallyseized The living witness is an individualhuman personality whose attributes ofwill, perception, memory and volitioninteract to determine what testimony hewill give.

Id. at 307-09, 105 S.Ct. 1285 (first emphasisadded, alterations and internal quotationmarks omitted). Elstad thus drew adistinction between fruits consisting of asubsequent confession by the defendant afterhaving been fully Mirandized and fruitsconsisting of subsequently obtained"inanimate evidentiary objects." Id at 309,105 S.Ct. 1285. A subsequent, Mirandizedconfession need not be excluded because itis the product of "volition, " willingly offeredup by a defendant who already had beenmade aware of his Miranda rights. Id. Byimplication, "inanimate evidentiary objects"would be excludable, because physicalevidence derived from the defendant's un-Mirandized statement is not the product ofvolition after a defendant has beenMirandized properly.2 See id. at 347 n. 29,

2 See also Orozco v. Texas, 394 U.S. 324, 89 S.Ct.1095, 22 L.Ed.2d 311 (1969). In Orozco, the officersinterrogated a suspect in custody without givingMiranda warnings, learning that the suspect owned agun and where it was located. Id at 325, 89 S.Ct.1095. Ballistics tests of the gun indicated that it hadbeen used to commit a murder. Id In a terse holding,the Court held that "the use of these admissionsobtained in the absence of the required warnings was

105 S.Ct. 1285 (Brennan, J., dissenting)("[T]oday's opinion surely ought not be readas also foreclosing application of thetraditional derivative-evidence presumptionto physical evidence obtained as a proximateresult of a Miranda violation. The Courtrelies heavily on individual 'volition' as aninsulating factor in successive-confessioncases.... [This] factor is altogether missing inthe context of inanimate evidence." (citationomitted)) .3

a flat violation of the Self Incrimination Clause of theFifth Amendment as construed in Miranda." Id. at326, 89 S.Ct. 1095 (emphasis added). The Court didnot expressly consider whether the gun and theballistics evidence would be admissible on remand.However, one plausible reading of Orozco is that thereference to the unconstitutional "use" of thestatements includes their use by police officers inobtaining the gun, as well as their introduction of theadmission at trial.This reading of Orozco is reinforced by the Court'ssubsequent opinion in Kastigar v. United States, 406U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972).Kastigar noted that the privilege against self-incrimination "protects against any disclosures whichthe witness reasonably believes could be used in acriminal prosecution or could lead to other evidencethat might be so used," id. at 445, 92 S.Ct. 1653, andthat "immunity from use and derivative use iscoextensive with the scope of the privilege," id at453, 92 S.Ct. 1653.Indeed, in Miranda itself the Court stated that "unlessand until such warnings and waiver are demonstratedby the prosecution at trial, no evidence obtained as aresult of interrogation can be used against him." 384U.S. 436, 454, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)(emphasis added).

There is a substantial argument that Elstad oughtnot even be treated as a case involving application ofthe Wong Sun fruits doctrine in the first place, forprecisely the reasons emphasized by Elstad in itsvolition discussion. In rejecting the argument that thesecond confession was the result of some "subtleform of lingering compulsion," id at 311, Elstad ineffect concluded that the second confession was notevidence "obtained ... as a direct result" of theMiranda violation. Wong Sun, 371 U.S. at 485, 83S.Ct. 407. In other words, the post-Mirandizedconfession in Elstad was admitted because it was not(rather than despite the fact that it was ) the fruit ofthe poisonous tree.

212

[The court rejects the argument that dicta inElstad supports the holding that the physicalfruits of a Miranda violation are not subjectto the Wong Sun fruits doctrine.]

In any event, we do not suggest that theholding in Elstad relying on volitiondefinitively establishes that the physicalfruits of a Miranda violation must besuppressed. Rather, the essential point forour analysis is only that Elstad does notdefinitively establish the contrary rule. [Thecourt quotes Justice White, who says thatElstad left the question of "admissibility ofphysical evidence yielded from a Mirandaviolation" open. Patterson v. United States,485 U.S. 922, 922-23, 108 S.Ct. 1093, 99L.Ed.2d 255 (1988) (White, J., dissentingfrom denial of certiorari).]

It is true that, prior to Dickerson, the TenthCircuit applied Tucker and Elstad to thephysical fruits of a Miranda violation andconcluded that suppression was not required***. However, once again Dickerson hasundercut the premise upon which thatapplication of Elstad and Tucker was basedbecause Dickerson now concludes that anun-Mirandized statement, even if voluntary,is a Fifth Amendment violation. Dickerson,530 U.S. at 444, 120 S.Ct. 2326.

Accordingly, we reject the Government'sposition that Tucker and Elstad foreclosesuppression of the physical fruits of aMiranda violation.

B. Lower court approaches

Courts applying Dickerson have split on theproper application of Wong Sun to thephysical fruits of a Miranda violation. TheThird and Fourth Circuits have ruled that thephysical fruits of a Miranda violation neverare subject to Wong Sun suppression. TheFirst Circuit, by contrast, has ruled that the

physical fruits of a Miranda violation mustbe suppressed in certain circumstances,depending on the need for deterrence ofpolice misconduct in light of thecircumstances of each case. Below, weanalyze the merits of each of theseapproaches. We conclude that the FirstCircuit is correct that the physical fruits of aMiranda violation must be suppressedwhere necessary to serve Miranda 'sdeterrent purpose. However, we partcompany with the First Circuit in theapplication of that standard, because weconclude that Miranda 's deterrent purposerequires suppression of the physical fruits ofa negligent Miranda violation. We thereforeconclude that suppression of the gun in thepresent case was appropriate.

1. Sterling & DeSumma

The Third and Fourth Circuits haveconcluded that the fruits doctrine simplydoes not apply to Miranda violations evenafter Dickerson. United States v. Sterling,283 F.3d 216, 218-19 (4th Cir.2002), cert.denied, 122 S.Ct. 2606, 153 L.Ed.2d 792(2002); United States v. DeSumma, 272F.3d 176, 180-81 (3d Cir.2001), cert.denied, 122 S.Ct. 1631, 152 L.Ed.2d 641(2002). Both of these cases held that thephysical fruits of a Miranda violation wereadmissible. Sterling, 283 F.3d at 219(shotgun found in vehicle as a result ofMiranda violation); DeSumma, 272 F.3d at180-81 (gun found in vehicle as a directresult of Miranda violation). Both Sterlingand DeSumma relied on substantially thesame reasoning, focusing primarily on anisolated passage in Dickerson. Dickersonnoted at the outset of the opinion that"Miranda and its progeny in this Courtgovern the admissibility of statements madeduring custodial interrogation in both stateand federal courts." 530 U.S. at 432, 120S.Ct. 2326. Later in the opinion, in the

213

course of rejecting various argumentssupporting the erroneous view that Mirandawas not a constitutional decision, the Courtstated:

The Court of Appeals also noted that inOregon v. Elstad we stated that "[t]heMiranda exclusionary rule ... serves theFifth Amendment and sweeps morebroadly than the Fifth Amendment itself."

Dickerson, 530 U.S. at 441, 120 S.Ct. 2326(*, citations and internal quotations

omitted).

Both Sterling and DeSumma viewed thislanguage as amounting to an endorsement ofthe rule that the Wong Sun exclusionary ruledoes not apply to the physical fruits of aMiranda violation. Sterling, 283 F.3d at219; DeSumma, 272 F.3d at 180. Sterlingexplained:

Although Dickerson held Miranda to bewith Constitutional significance, Mirandaonly held that certain warnings must begiven before a suspect's statements madeduring custodial interrogation can beadmitted into evidence. In addition, we areof opinion that the Court's reference to andreaffirmation of Miranda's progenyindicates that the established exceptions,like those in Tucker and Elstad, survive.Thus, the distinction between statementsand derivative evidence survivesDickerson. In fact, Dickerson reiteratedthe distinction made in Elstad by statingthat: "Our decision in that case - refusingto apply the traditional 'fruits' doctrinedeveloped in Fourth Amendment cases -does not prove that Miranda is anonconstitutional decision, but simplyrecognizes the fact that unreasonablesearches under the Fourth Amendment aredifferent from unwarned interrogation

under the Fifth Amendment."

283 F.3d at 219 (emphasis in original,citation omitted).

There are at least two serious problems withthe reasoning in DeSumma and Sterling.First, we respectfully disagree with theirconclusion that Dickerson 's reference to thecontrolling force of "Miranda and itsprogeny in this Court" forecloses theargument that the physical fruits of aMiranda violation may be suppressed.Although we agree that, based on thislanguage, the holdings of Elstad and Tuckersurvive Dickerson, neither Elstad nor Tuckerinvolved the physical fruits of a Mirandaviolation; as explained above, Elstadexpressly contrasted the subsequentconfession it found admissible from physicalfruits, while Tucker expressly limited itsholding to pre-Miranda interrogations. SeePatterson, 485 U.S. at 922-24, 108 S.Ct.1093 (White, J., dissenting from denial ofcertiorari). By wholly undermining thedoctrinal foundation upon which thoseholdings were built, Dickerson effectivelyleft Elstad and Tucker standing butprevented lower courts from extending theirholdings. Of course, prior to Dickersonmany lower courts (including this one)already had expanded the holdings of Elstadand Tucker by concluding that Mirandaviolations do not require suppression ofphysical fruits, but Dickerson explicitlylimited its saving language to Miranda 's"progeny in this Court." 530 U.S. at 432,120 S.Ct. 2326 (emphasis added). Far fromendorsing pre-Dickerson lower court caselaw, then, Dickerson instead signaled thecontrary view.

The second fundamental problem with thereasoning in DeSumma and Sterling is thatthe language that they rely on for theproposition that Dickerson endorsed the

214

extension of Elstad to physical fruits in factsaid only that Elstad "recognizes ... thatunreasonable searches under the FourthAmendment are different from unwarnedinterrogation under the Fifth Amendment."Dickerson, 530 U.S. at 441, 120 S.Ct. 2326(emphasis added). The critical question, ofcourse, is how the two are different. At oralargument in the present case, theGovernment argued only that the way thatFourth Amendment violations differ fromFifth Amendment violations is that theWong Sun fruits doctrine applies to theformer and not the latter. This argumentalready has been rejected by the SupremeCourt. Nix v. Williams, 467 U.S. 431, 442 &n.3, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984)(noting that the Court has applied the fruitsdoctrine to violations of the FifthAmendment, citing Murphy v. WaterfrontComm'n, 378 U.S. 52, 79, 84 S.Ct. 1594, 12L.Ed.2d 678 (1964)); Kastigar v. UnitedStates, 406 U.S. 441, 460-61, 92 S.Ct. 1653,32 L.Ed.2d 212 (1972). Although Dickersonitself does not explain how searches underthe Fourth Amendment are "different,"Elstad does just that: "a procedural Mirandaviolation differs in significant respects fromviolations of the Fourth Amendment, whichhave traditionally mandated a broadapplication of the 'fruits' doctrine." 470 U.S.at 306, 105 S.Ct. 1285 (emphasis added).This language indicates that Mirandaviolations are "different" because anarrowed application of the fruits doctrineapplies to Miranda violations, not becausethe fruits doctrine does not apply at all. Cfid at 306, 105 S.Ct. 1285 (referring to "[t]heMiranda exclusionary rule").

Of course, Elstad 's explanation of howapplication of the fruits doctrine is"different" in Miranda cases begs thequestion of what a "broad" applicationmeans. We conclude that the broadapplication of the fruits doctrine is that

defined in Nix: "the prosecution is not to beput in a better position than it would havebeen in if no illegality had transpired." 467U.S. at 443, 104 S.Ct. 2501. Application ofthe fruits doctrine in the Miranda context isnot "broad" because a number of exceptionsto this pure rule have been recognized,circumstances where the prosecution ispermitted to benefit from the Mirandaviolation. See Elstad, 470 U.S. at 314, 105S.Ct. 1285; Tucker, 417 U.S. at 447-48, 94S.Ct. 2357; New York v. Quarles, 467 U.S.649, 657, 104 S.Ct. 2626, 81 L.Ed.2d 550(1984); Harris v. New York, 401 U.S. 222,225-26 & n. 2, 91 S.Ct. 643, 28 L.Ed.2d I(1971).

One could argue that further narrowing ofthe pure fruits doctrine in the Mirandacontext-narrowing beyond that alreadyeffectuated by the holdings of Elstad andTucker4 also is appropriate. However, we areunpersuaded that the additional narrowingarticulated in DeSumma and Sterling(refusing to apply the fruits exclusion tophysical evidence obtained as a result of theillegally obtained confession) reflects acorrect understanding of the way in whichMiranda violations are, in Dickerson'swords, "different" from Fourth Amendmentviolations.

A blanket rule barring application of thefruits doctrine to the physical fruits of aMiranda violation would mark a dramaticdeparture from Supreme Court precedent.The Court consistently has recognized thatdeterrence of police misconduct, whetherdeliberate or negligent, is the fundamental

Tucker's narrowing would seem no longerapplicable because it appeared to establish anexception only for questioning that pre-datedMiranda itself. Elstad 's narrowing would still haveapplicability today because it declined to apply thefruits exclusion to a subsequent voluntary confessionrendered after the Miranda warnings are given.

215

justification for the fruits doctrine. Nix, 467U.S. at 442-43, 104 S.Ct. 2501; see alsoElstad, 470 U.S. at 308, 105 S.Ct. 1285;Tucker, 417 U.S. at 447, 94 S.Ct. 2357(noting "the deterrent purpose of theexclusionary rule"). The Court also has beenconsistent in narrowing the scope of thefruits doctrine in the Miranda context onlywhere deterrence is not meaningfullyimplicated. See Elstad 470 U.S. at 308-09,105 S.Ct. 1285; Tucker, 417 U.S. at 447-48,94 S.Ct. 2357.

In sharp contrast with Elstad and Tucker,however, the rule argued for by theGovernment here risks the evisceration ofthe deterrence provided by the fruitsdoctrine, as this case well illustrates. As apractical matter, the inability to offerPatane's statements in this case affords nodeterrence, because the ability to offer thephysical evidence (the gun) renders thestatements superfluous to conviction. Seegenerally United States v. Kruger, 151F.Supp.2d 86, 101-02 (D.Me.2001) ("Theexclusion of the cocaine, the substance -indeed essence - of the suppressedstatements, is necessary to deter lawenforcement officers from foregoing theadministration of Miranda warnings ...."),

overruled by Faulkingham, 295 F.3d at 92-94; Yale Kamisar, On the "Fruits" ofMiranda Violations, Coerced Confessions,and Compelled Testimony, 93 Mich. L.Rev.929, 933 (1995) ("Unless the courts bar theuse of the often-valuable evidence derivedfrom an inadmissible confession, as well asthe confession itself, there will remain astrong incentive to resort to forbiddeninterrogation methods."); David A. Wollin,Policing the Police: Should MirandaViolations Bear Fruit?, 53 Ohio St. L.J 805,843-48 (1992) ("Police officers seekingphysical evidence are not likely to view theloss of an unwarned confession asparticularly great when weighed against the

opportunity to recover highly probativenontestimonial evidence, such as a murderweapon or narcotics."). * * *

Further, the rule urged upon us by theGovernment appears to make little sense asa matter of policy. From a practicalperspective, we see little difference betweenthe confessional statement "The Glock is inmy bedroom on a shelf," which even theGovernment concedes is clearly excludedunder Miranda and Wong Sun, and theGovernment's introduction of the Glockfound in the defendant's bedroom on theshelf as a result of his unconstitutionallyobtained confession. If anything, to adoptthe Government's rule would allow it tomake greater use of the confession thanmerely introducing the words themselves.

Accordingly, we decline to adopt theposition of the Third and Fourth Circuitsthat the Wong Sun fruits doctrine neverapplies to Miranda violations.

2. Faulkingham

With its recent decision in United States v.Faulkingham, 295 F.3d 85 (1st Cir.2002),the First Circuit rejected the Third andFourth Circuits' blanket refusal to applyWong Sun suppression to the fruits of aMiranda violation. Id. at 90-91.Faulkingham acknowledged, contrary toSterling and DeSumma, that Dickerson'srecognition that Miranda violations areconstitutional violations strengthened theargument that their physical fruits must besuppressed. Id at 92-93. However,Faulkingham concluded that suppression ofthe fruits of a Miranda violation was notrequired in every case. Rather, it adopted arule mandating suppression of the fruits of aMiranda violation in individual cases where"a strong need for deterrence" outweighs thereliability of that evidence. Id. at 93.

216

Because the physical fruits of a Mirandaviolation generally will be trustworthyevidence, it appears that in most cases theFirst Circuit's analysis boils down to a ruleexcluding the fruits of a Miranda violationonly when there is a "strong need fordeterrence." On each of Faulkingham's twobasic points - that Dickerson alters theanalysis regarding suppression of the fruitsof a Miranda violation, and that suppressionof the physical fruits is required wherenecessary to effectuate Miranda's deterrentpurpose - we agree with the First Circuit.For reasons already stated above, weconclude that each of these propositions iscompelled by Supreme Court precedent.

Turning to the application of this standard tocircumstances - present both inFaulkingham and in the present case -where an officer negligently rather thanintentionally violates a defendant's Mirandarights, however, we disagree with the FirstCircuit. In Faulkingham, the courtconcluded that, where the Miranda violationresulted from mere negligence on the part ofthe interrogating officer, there is no strongneed for deterrence and thus the physicalfruits of the Miranda violation need not beexcluded. We conclude that Faulkingham'scramped view of deterrence leads it to anerroneous conclusion regarding negligentMiranda violations.

Faulkingham asserted, without elaboration,that "[o]nce the un-Mirandized inculpatorystatements of the defendant are themselvessuppressed, the role of deterrence under theFifth Amendment becomes less primary."Id. at 92. The heart of the court's analysis isthe following:

Where, as here, negligence is the reasonthat the police failed to give a Mirandawarning, the role of deterrence is weakerthan in a case ... where the apparent reason

the police failed to give a warning wastheir intention to manipulate the defendantinto giving them information.Faulkingham's claim, taking all thesurrounding circumstances into account,simply does not tip the balance toward astrong need for deterrence. Faulkingham'sstatement was not the result of "coerciveofficial tactics." There was no deliberatemisconduct by the [police] agents here.There was no misleading or manipulationby the government.... The findings of themagistrate judge and the trial judge give usno reason to think that the agentsdeliberately failed to give the warning inorder to get to the physical evidence orthat they did so to get to another witnesswho might or might not incriminateFaulkingham. The agents' negligenceresulted in the suppression ofFaulkingham's confession, itself adetriment to the agents....

Id. at 93-94 (citation to opinion belowomitted). The court noted that "Faulkinghamhimself started talking without muchquestioning" and observed that "there isnothing to shock the conscience of the courtand no fundamental unfairness." Id. at 94. Inlight of the totality of the circumstances, thecourt held "that Faulkingham's far weakerargument for recognition of a deterrenceinterest for suppression of derivativeevidence arising from a negligent violationof his Miranda rights is insufficient to carrythe day." Id

We do not believe that "the role ofdeterrence ... becomes less primary" oncethe statement itself has been suppressed. Id.at 92. Instead, the relevant question remainswhether suppression of the statement aloneprovides deterrence sufficient to protectcitizens' constitutional privilege against self-incrimination. As we already have statedabove, we answer this question in the

217

negative.

Nor do we share Faulkingham 's view thatthere is a strong need for deterrence onlywhere the officer's actions were deliberaterather than negligent. Finally, Miranda itselfmade clear that the privilege against self-incrimination was animated, not by a desiremerely to deter intentional misconduct bypolice, but by the "one overriding thought"that "the constitutional foundationunderlying the privilege is the respect agovernment ... must accord to the dignityand integrity of its citizens." Miranda, 384U.S. at 460, 86 S.Ct. 1602; see also id("[T]he privilege has come rightfully to berecognized in part as an individual'ssubstantive right ... to a private enclavewhere he may lead a private life." (internalquotation marks omitted)). The personalright to be free of government invasions ofthe privilege against self-incrimination isviolated just as surely by a negligent failureto administer Miranda warnings as adeliberate failure. Deterrence is necessarynot merely to deter intentional wrongdoing,but also to ensure that officers diligently(non-negligently) protect - and properly aretrained to protect - the constitutional rightsof citizens. The call for deterrence may besomewhat less urgent where negligencerather than intentional wrongdoing is atissue, but in either case we conclude that theneed is a strong one.

Moreover, we conclude that a rule limitingWong Sun suppression of the physical fruitsof a Miranda violation to situations wherethe police demonstrably acted in intentionalbad faith would fail to vindicate theexclusionary rule's deterrent purpose. Evenin cases where the failure to administerMiranda warnings was calculated, obtainingevidence of such deliberate violations ofMiranda often would be difficult orimpossible. Cf Whren v. United States, 517

U.S. 806, 814, 116 S.Ct. 1769, 135 L.Ed.2d89 (1996) (noting that one reason for theCourt's adoption of an objective test for thereasonableness of a seizure was "theevidentiary difficulty of establishingsubjective intent" of officers). *** Webelieve a rule that provides certainty inapplication and clarity for the officerscharged with operating under it better servesthe interests of citizens, officers, and judicialefficiency.

Accordingly, we agree with the FirstCircuit's conclusion that the Wong Sun fruitsdoctrine may apply to the physical fruits ofMiranda violations, but we decline to adoptFaulkingham 's view that the physical fruitsof a negligent Miranda violation areadmissible. ***

As explained above, we conclude thatMiranda 's deterrent purpose would not bevindicated meaningfully by suppression onlyof Patane's statement. We hold that thephysical fruits of this Miranda violationmust be suppressed,

IV. CONCLUSION

For the foregoing reasons, we AFFIRM thedistrict court's order suppressing the gun.

218

Justices Take Case On Scope of Miranda;Issue Is Evidence Gleaned Before Rights Are Read

The Washington Post

April 22, 2003

Charles Lane

The Supreme Court announcedyesterday that it will review a Coloradocase that could help further define theconstitutional ban on forced confessions.At issue is whether physical evidencethat authorities discovered because ofwhat a suspect told them before beingfully informed of his rights should havebeen admissible in court.

Under the court's famous 1966 Mirandaruling, a suspect's statement in policecustody cannot be used against himunless police first tell him that he has aright to remain silent and to have alawyer present during questioning.

But in this case, U.S. v. Patane, No. 02-1183, the issue is whether courts mustalso exclude physical evidence policefind based on information a suspect gavewithout first being "Mirandized."

Legal analysts said the issue is especiallyrelevant to murder investigations, wheretwo crucial pieces of evidence - thevictim's body and the murder weapon -are often found only because ofcomments made by suspects.

"It's not most cases, but it's not unusual,"said William J. Stuntz, a professor oflaw at Harvard University. "They readthe warnings, the suspect invokes hisright to remain silent, and then they don'tstop questioning him. They know the

confession is inadmissible, but they feelthey can at least use the physicalevidence."

The Supreme Court ruled in 1985 that aconfession given after a suspect is toldof his rights can be used as evidenceeven if it was obtained thanks to aprevious "un-Mirandized" statement.

Lower courts have since interpreted thedecision to mean that physical evidencemay be likewise included.

But last year, a three-judge panel of theDenver-based U.S. Court of Appeals forthe 10th Circuit ruled that the 1985 casehad not actually settled the issue. Thatcase, the 10th Circuit noted, had referredto the Miranda warnings as notnecessarily required by the Constitution.

In light of a 2000 Supreme Court rulingthat reaffirmed that Miranda hadestablished a fundamental constitutionalright, the 10th Circuit ruled, physicalevidence found thanks to an "un-Mirandized" statement must besuppressed as what legal doctrine calls"fruit of a poisonous tree."

"Now that the court has said Miranda isconstitutionally compelled, it's hard tosee how you can take un-Mirandizedstatements and use them withoutviolating the right against self-

219

incrimination," said Deanne Maynard, aWashington lawyer and Supreme Courtpractitioner who studies Miranda issuesfor the National Association of CriminalDefense lawyers.

The Supreme Court said it will hear thecase in response to an appeal by theJustice Department, which argued in itsbrief that the 10th Circuit's decisionwould "impose serious costs on theadministration of justice."

The Justice Department argued that the2000 Supreme Court ruling specificallyendorsed the notion that courts couldadmit physical evidence found as a resultof suspects' un-Mirandized statements.

Copyright C 2003 The Washington PostCo.

220

Common Sense And Miranda Rights;Don't Suppress Evidence A Suspect Volunteered

Rocky Mountain News

April 24, 2003

Editorial

The Fifth Amendment to theConstitution says that no one can be"compelled in any criminal case to be awitness against himself." The FourthAmendment bars "unreasonable searchesand seizures." In other words, policecan't force someone to confess to a crimeor turn over incriminating evidence, andthey can't burst into your home without awarrant.

But no one forced a Colorado Springsman, Samuel Francis Patane, to tellofficers where to find a gun that as aconvicted felon he had no right to own.Police asked Putane where his Glockwas and he told them - and yet theevidence was thrown out in courtbecause Patane hadn't been read his"Miranda warnings." That not onlydefies common sense, it has nothing todo with the Constitution as it wasactually written, and we hope theSupreme Court says so now that it hasagreed to hear the case.

To be sure, the high court is hemmed inby its own recent precedents, includingan opinion three years ago reaffirmingthe 1960s requirement that police advisepeople of their Miranda rights beforequestioning them. What suspects saybefore the Miranda warnings, the courtreiterated, cannot be used as evidenceagainst them in court.

But what about physical evidence thatofficers find as a result of what a suspectsays before he's heard the warning?Shouldn't that at least be admissible?Lower courts are split on the issue,which is why the Patane case issignificant.

Patane actually interrupted an officerwho started to read him his rights, sayinghe understood what they were and didn'tneed to hear the warning. It was onlythen that officers asked him where theycould find his Glock.

In the real world, most people wouldsay, his rights were adequately protectedsince he knew them. In cases involvingthe Fourth Amendment protectionagainst unreasonable searches andseizures, however, the policy has beenthat any evidence acquired through anillegal search must be suppressedbecause it is "the fruit of a poisonoustree." In Patane's case, the 10th U.S.Circuit Court of Appeals applied thefruits doctrine broadly and ruled thatprosecutors could not use the Glock asevidence. Without it, prosecutors couldnot convict him of illegal firearmspossession.

Other appeals courts have chosen morenarrow readings, saying physicalevidence obtained as a result of a

221

Miranda violation need not besuppressed.

Suspects are allowed to waive theirMiranda rights, so whether failure toread the complete paragraph should evencount as a violation could be arguable,but the government conceded that inPatane's case it was a violation.

Theodore Olson, the U.S. solicitorgeneral, will argue for the governmentthat Miranda covers only confessions,not physical evidence, and that's theposition the high court should take.Experienced offenders get to know thelegal rules pretty well. If one way toensure that damning evidence will not beused against them at trial is to announceits existence before arresting officerseven have a chance to read the Mirandawarnings, expect such announcements tobecome more frequent.

Suppressing physical evidence revealedat a suspect's initiative does nothing todeter police misconduct, it just makesthe prosecution's job harder.

Copyright C 2002 Denver PublishingCompany

222

Will the High Court Revisit 'Miranda' - Again?

The Recorder

April 16, 2003

Tony Mauro

WASHINGTON - Many commentatorswere surprised three years ago when theSupreme Court reaffirmed Miranda v.Arizona in a 7-2 decision written byChief Justice William Rehnquist. Afterall, Rehnquist had been a critic ofMiranda throughout his 31 years on thecourt.

A case that goes before the court forconsideration at its Friday privateconference could give the court anopportunity to show its colors again onthe potency of the Miranda rule, whichrequires police to warn suspects of theirright to remain silent. The case, UnitedStates v. Patane, 02-1183, is one ofdozens the justices will discuss at theconference.

Under Miranda, statements made by adefendant in the absence of a warningcannot be admitted at trial. In Patane, theissue is whether physical evidence - inthis case a pistol - obtained as a result ofan un-Mirandized statement must also besuppressed.

The government asserts that theSupreme Court answered the questionlong ago when it declined in two cases toapply the "fruits of the poisonous tree"doctrine to suppress evidence obtainedas a result of an un-Mirandizedconfession. The cases cited by thegovernment are Michigan v. Tucker,

from 1974, and the 1985 ruling Oregonv. Elstad.

But both of those rulings came beforeDickerson v. United States, the 2000decision authored by Rehnquist thatupheld Miranda. The Tenth Circuit U.S.Court of Appeals decided in Patane thatbecause the Dickerson ruling viewedMiranda as a decision with constitutionaldimensions - not just as a prophylacticrule - "Dickerson undermined the logicunderlying Tucker and Elstad." As aresult, to give Miranda the constitutionalweight it was accorded in Dickerson, thecircuit panel agreed the gun evidence inPatane's case should be suppressed.

"Miranda's deterrent purpose would notbe vindicated meaningfully bysuppression only of Patane's statement.We hold that the physical fruits of thisviolation must be suppressed," wroteTenth Circuit Judge David Ebel.

Samuel Patane was arrested in ColoradoSprings in June 2001 for violating adomestic violence restraining orderimposed to protect his ex-girlfriend.

Officers began to read Patane hisMiranda rights, but stopped when hesaid he knew his rights. Police thenasked him whether he owned firearms.Patane revealed he had a Glock pistol.Police seized it and, after learningPatane had prior drug convictions,

223

charged him with violating the federallaw against possession of firearms byfelons.

In its petition to the Supreme Court, thesolicitor general's office notes that theFirst, Third and Fourth Circuits haveruled on the same issue in light ofDickerson, and ruled that suppression ofphysical evidence is not always required.As a result, the government says, acircuit conflict exists "on an importantconstitutional issue that arises withregularity."

Patane's lawyer, Assistant Federal PublicDefender Jill Wichlens, says in her briefthat because the Tenth Circuit's ruling isconsistent with Dickerson, it does notwarrant review. She also argues thatneither Tucker nor Elstad gave the greenlight to admitting physical evidenceobtained through an improper policeinterview.

"The fruit of the poisonous tree doctrineapplies to the fruit of a Mirandaviolation ... just as the doctrine applies tothe fruit of any other constitutionalviolation," writes Wichlens.

Copyright C 2003 ALM Properties, Inc.

224

The Exclusionary Rule

Georgetown Law Journal

May, 2002

Miles Clark

[Excerpt; some footnotes and citationsomitted.]

The exclusionary rule requires thatevidence obtained directly or indirectlythrough government violations of theFourth, Fifth, or Sixth Amendments maynot be introduced by the prosecution attrial, at least for the purpose of providingdirect proof of the defendant's guilt.When a court improperly admitsevidence in violation of the exclusionaryrule, reversal is required unless the errorwas harmless beyond a reasonabledoubt. The exclusionary rule is not apersonal constitutional right, but rather ajudicially created remedy to detergovernment violations of theConstitution. Because the goal ofdeterrence will not always be advancedby excluding relevant, though illegallyobtained, evidence, the Supreme Courthas identified several exceptions to theexclusionary rule, which are discussedhereinafter.

Standing A defendant has standingto challenge the admission of evidenceonly if the defendant's ownconstitutional rights have been violated.In cases involving Fourth Amendmentviolations, courts determine standing bydeciding whether a defendant had areasonable expectation of privacy in thearea searched or the items seized. Whenviolations of the Fifth and SixthAmendments are alleged, courts

similarly focus on the personal nature ofthe rights asserted. A defendant mustdemonstrate standing before trial unlessthe court allows otherwise upon ashowing of good cause. If theprosecution concedes standing before thetrial court, it may be precluded fromraising the issue on appeal.

Good Faith Exception. In UnitedStates v. Leon, the Supreme Court heldthat evidence need not be suppressedwhen police obtain the evidence throughobjective good faith reliance on afacially valid warrant that is later foundto lack probable cause.' The Courtconcluded that a "good faith" exceptionto the exclusionary rule was properbecause under such circumstancessuppression would not advance theexclusionary rule's goal of deterringofficial misconduct. The good faithexception also applies when the policeobtain evidence in reliance on a warrantlater found technically defective, on astatute authorizing warrantless searchesthat is later declared unconstitutional, oron an erroneous police record indicatingthe existence of an outstanding arrest

468 U.S. 897, 920 (1984). In Leon, a searchconducted pursuant to a "facially valid" warrantyielded large quantities of drugs and otherevidence. The district court subsequently foundthe affidavit insufficient to establish probablecause and suppressed the evidence. The SupremeCourt held the evidence admissible because thepolice acted in good faith reliance on thewarrant.

225

warrant. When reviewing suppressionrulings, it is within the discretion of theappellate court to proceed directly to thegood faith issue without first decidingthe issue of probable cause.

The good faith exception does notextend to cases where the police have noreasonable grounds for believing that thewarrant was properly issued. The Courthas identified four situations wherepolice reliance on a warrant is notobjectively reasonable: (1) when themagistrate issued the warrant in relianceon a deliberately or recklessly falseaffidavit; (2) when the magistrate failedto act in a neutral and detached manner;(3) when the warrant was based on anaffidavit "so lacking in indicia ofprobable cause as to render officialbelief in its existence entirelyunreasonable"; or (4) when the warrantwas so facially deficient that an officercould not reasonably have believed it tobe valid.

Attenuation Exception. A court mayadmit evidence that would not have beendiscovered but for official misconduct ifthe causal connection between the illegalconduct and the acquisition of theevidence is sufficiently attenuated. InWong Sun v. United States, the SupremeCourt stated that the proper inquiry iswhether the evidence was obtainedthrough exploitation of the initialconstitutional violation or bydistinguishable means sufficientlyattenuated from the primary illegality soas to purge the evidence of its taint.'

2371 U.S. 471, 488 (1963). In Wong Sun, federaldrug enforcement agents arrested the defendantwithout probable cause. Several days after hewas released on bail, defendant voluntarilyreturned to the police station and gave anunsigned confession. The Court concluded thatthe confession was admissible because the

In Brown v. Illinois,' the SupremeCourt set forth three factors for courts toconsider in determining whether thecausal chain has been sufficientlyattenuated: (1) the time elapsed betweenthe illegality and the acquisition of theevidence; (2) the presence of interveningcircumstances; and (3) the purpose andflagrancy of the official misconduct.

In Brown, the Supreme Court alsoheld that Miranda warnings alone arenot sufficient to dissipate the taint of anillegal arrest and detention from asubsequent confession. In contrast, theSupreme Court in Oregon v. Elstadfound that Miranda warnings aloneordinarily should suffice to dissipate thetaint of an initial Miranda violation andrender a second confession admissible,but only if the first confession was givenvoluntarily. In cases where a firstconfession was involuntary, however, asubsequent confession may be admittedonly if sufficiently attenuated under theBrown factors.

Courts also invoke the attenuationdoctrine to admit testimony of a witnesswhose identity was discovered throughillegal means. In United States v.Ceccolini,5 the Supreme Court upheldthe admission of a witness' testimony,even though discovery of his identitywas the fruit of an unlawful search,because the witness' uncoercedtestimony was deemed sufficientlyattenuated from the illegal search.' TheCourt noted that a rigid application ofthe exclusionary rule "would perpetually

defendant's voluntary return to the stationrendered the confession sufficiently attenuatedfrom his illegal arrest.

422 U.S. 590, (1975).470 U.S. 298 (1985).467 U.S. 431 (1984).

6435 U.S. 268, 279-80 (1978).

226

disable a witness from testifying aboutrelevant and material facts, regardless ofhow unrelated such testimony might beto the purpose of the originally illegalsearch."

Independent Source Exception. Evenif police engage in illegal investigatoryactivity, evidence will be admissible if itis discovered through a sourceindependent of the illegality. Theindependent source doctrine reflects theidea that although the government oughtnot profit from its misconduct, it alsoshould not be made worse off than itwould have been had the misconduct notoccurred.

Inevitable Discovery Exception. Theinevitable discovery exception to theexclusionary rule is closely related to theindependent source doctrine. Under thisexception, a court may admit illegallyobtained evidence if the evidenceinevitably would have been discoveredthrough independent, lawful means. Forexample, in Nix v. Williams, theSupreme Court held that evidenceconcerning the location and condition ofa murder victim's body was admissibleeven though the police obtained thisinformation in violation of thedefendant's Sixth Amendment right tocounsel. The Court reasoned that acomprehensive search already under wayat the time of the police illegality wouldhave inevitably resulted in the discoveryof the body.

Collateral Uses. Even if noexception to the exclusionary ruleapplies, the government may still useillegally obtained evidence in contextsoutside of the prosecution's case-in-chief. For example, the government mayintroduce tainted evidence in federal

civil tax proceedings, habeasproceedings, grand jury proceedings,civil deportation proceedings, parolerevocation proceedings, and at adefendant's sentencing hearing.

Illegally obtained evidence can alsobe used to impeach the testimony of adefendant given on direct examination orto impeach a defendant's testimony oncross-examination, provided that theprosecution's questioning on cross-examination was reasonably suggestedby defendant's testimony during directexamination. The prosecution, however,may not use illegally obtained evidenceto impeach witnesses other than thedefendant.

Copyright C 2002 by Georgetown LawJournal Association; Miles Clark

227

02-1371 Missouri v. Seibert

Ruling Below: (Mo., 93 S.W.3d 700, 72 Crim. L. Rep. 231)

Rule announced in Oregon v. Elstad, 470 U.S. 298 (1985)--that "careful and thoroughadministration" of warnings prescribed by Miranda v. Arizona, 384 U.S. 436 (1966), willordinarily be enough to remove taint of earlier, unwarned questioning--does not apply whenpolice intentionally violate warnings requirement to facilitate questioning by weakeningdefendant's ability to knowingly and voluntarily exercise constitutional rights and then obtainconfession off record, give warnings, and record second confession.

Question Presented: Is rule of Oregon v. Elstad, that suspect who has once responded tounwarned yet uncoercive questioning is not thereby disabled from waiving his rights andconfessing after he has been given requisite Miranda warnings, abrogated when initial failure togive Miranda warnings was intentional?

STATE of Missouri, Respondent,V.

Patrice SEIBERT, Appellant.

Supreme Court of Missouri

Decided December 10, 2002.


MICHAEL A. WOLFF, Judge.

The question presented here is whether alaw enforcement officer's intentionalviolation of Miranda v. Arizona, 384 U.S.436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966),in obtaining a statement requiressuppression of a second statement, securedafter a Miranda warning was given, wherethe second statement was based on the first.Essential to this inquiry is whether thepresumption that the first statement wasinvoluntary carries over to the secondstatement. In the circumstances here, wherethe interrogation was nearly continuous, theCourt holds that the second statement,clearly the product of the invalid first

statement, should have been suppressed.Patrice Seibert was convicted of second-degree murder for her role in the death ofDonald Rector in a fire intentionally set inthe mobile home where Rector resided. Shewas sentenced to life imprisonment. Onappeal, Seibert asserts the trial courtcommitted reversible error when it allowedthe State to introduce inculpatory statementsshe made while in custody. Seibert did nottestify at trial.

*** The judgment of the trial court isreversed, and the case is remanded.

Facts - The Mobile Home Fire and Deathof Donald Rector

Seibert lived in a mobile home in Rolla withher five sons. The victim, Donald Rector,

228

17, who was on medication for a mentaldisorder, also lived with them. Jonathan, 12,one of Seibert's sons, was seriouslyhandicapped with cerebral palsy. He couldnot walk, talk or feed himself. On February12, 1997, Jonathan died in his sleep. Seibertwas afraid to report his death. He hadbedsores, and she was afraid authoritieswould believe she had been neglecting him.

In Seibert's presence, two of her teen-agedsons and two of their friends discussed aplan to set the mobile home on fire to coverup Jonathan's death. They decided Donaldshould be present in the fire so it would notlook as though Jonathan had been left alone.In her statements, Seibert admitted thatDonald, who died in the fire, was supposedto die in the fire. According to the trialtestimony of Jeremy, one of her son'sfriends, Seibert was crying, "pretty much inhysterics," during the discussion with hertwo sons and their friends. She suggestedsending her two younger sons, Patrick andShawn, to church during the fire. Seibertwas not present when the fire started.

Darian, age 17, the oldest of Seibert's sons,and his friend Derrick were to set the fire.Darian testified that Derrick poured gasaround the trailer and then hit Donald, whowas having a seizure and convulsing on thefloor. Derrick set the fire before Darian wasout of the trailer. Darian suffered seriousburns to his face. Donald's dead body wasfound kneeling in front of and partially lyingon a sofa in the west bedroom with apenetrating wound on the back of his skull.The cause of death was asphyxiationsecondary to exposure to fire.

The Two-Step Interrogation

On February 17, 1997, five days after thetrailer fire, St. Louis County officer KevinClinton woke Seibert at 3:00 a.m. She was at

a hospital in St. Louis County, where Darianwas being treated for bums. Rolla officerRichard Hanrahan arranged for OfficerClinton to arrest Seibert. Officer Hanrahanspecifically instructed Officer Clinton not toadvise Seibert of her Miranda rights.

Once at the police station, Seibert was left ina small interview room for 15 to 20 minutesto "give her a little time to think about thesituation." Without issuing a Mirandawarning, Officer Hanrahan then questionedher for 30 to 40 minutes. He squeezed herarm and repeated the same statement,"Donald was also to die in his sleep,"throughout much of the interview. After shemade an admission indicating that she knewDonald was to die in his sleep, she wasgiven a 20-minute break for coffee and acigarette. Officer Hanrahan then resumedthe interview, this time using a taperecorder, and advised Seibert of herMiranda rights. Seibert signed a waiverform.

Officer Hanrahan began the second stage ofthe interview by referring to the first stage:"Ok, 'trice, we've been talking for a littlewhile about what happened on Wednesdaythe twelfth, haven't we?" Then, withoccasional reference back to the first stage,pre-Miranda interview, Officer Hanrahancontinued to question Seibert. She repeatedstatements she had made prior to receivingMiranda. This tape-recorded interview wasplayed to the jury at trial.

Officer Hanrahan testified that he made aconscious decision to withhold Mirandahoping to get an admission of guilt. Hetestified that an institute, from which he hasreceived interrogation training, haspromoted this type of interrogation''numerous times" and that his currentdepartment, as well as those he was withpreviously, all subscribe to this training. In

229

the second stage of the interview, OfficerHanrahan began by reminding Seibert thatthey had been "talking for a little while"about the trailer fire, which occurred onFebruary 12. Thus, he was able to linktogether the unwarned interview with thewarned interview. Seibert was reminded ofthe statements she made during the firststage, which occurred before he gave Seiberta Miranda warning. He also used Seibert'spre-warning statements to phrase hisquestions. For example, consider thefollowing excerpt from the second stage ofthe interview (emphasis added):

Officer Hanrahan: Now, in discussion youtold us, you told us that there was anunderstanding about Donald. (Here, he isreferring to the unwarned portion of theinterview.)Seibert: Yes.Hanrahan: Did that take place earlier thatmorning [February 12, 1997]?Seibert: Yes.Hanrahan: Ok. And what was theunderstanding about Donald?Seibert: If they could get him out of thetrailer, to take him out of the trailer.Hanrahan: And if they couldn't?Seibert: I, I never even thought about it. Ijust figured they would.Hanrahan: Trice, didn't you tell me that hewas supposed to die in his sleep?Seibert: If that would happen, 'cause hewas on that new medicine, you know....Hanrahan: The Prozac? And it makes himsleepy. So he was supposed to die in hissleep?Seibert: Yes.

Officer Hanrahan, in order to secure anadmissible confession, used information hegained from Seibert's previous inadmissibleconfession. As a result, Seibert's post-warning statements were closely tied to thelengthy unwarned interrogation.

The Purpose and Protections of Miranda

To preserve the Fifth Amendment rightagainst self incrimination where an accusedis subjected to custodial interrogation, which"exacts a heavy toll on individual liberty andtrades on the weakness of individuals," theUnited States Supreme Court created thenow well-known safeguard: the Mirandawarning. Miranda v. Arizona, 384 U.S. 436,455, 86 S.Ct. 1602, 16 L.Ed.2d 694.Miranda provided that, "prior to anyquestioning " a person must be informed ofcertain rights, including the right to remainsilent, which can only be waived knowingly,voluntarily and intelligently. Id. at 444, 86S.Ct. 1602 (emphasis added).

The Miranda requirement serves severalpurposes. "For those unaware of theprivilege, the warning is needed simply tomake them aware of it - the thresholdrequirement for an intelligent decision as toits exercise. More important, such a warningis an absolute prerequisite in overcoming theinherent pressures of the interrogationatmosphere." Id. at 468, 86 S.Ct. 1602.Beyond providing these protections, theMiranda decision and its progeny serve toguide police and deter improper conduct.The Supreme Court granted certiorari inMiranda to "give concrete constitutionalguidelines for law enforcement agencies andcourts to follow."

Failure to give a Miranda warning does notresult in exclusion of a statement for allpurposes. An unwarned custodial statementmay be used for impeachment. Harris v.New York, 401 U.S. 222, 91 S.Ct. 643, 28L.Ed.2d 1 (1971). The prosecution may usethe testimony of a witness who wasidentified by the defendant in a statementgiven without a Miranda warning. Michiganv. Tucker, 417 U.S. 433, 444, 94 S.Ct. 2357,41 L.Ed.2d 182 (1974). And, most pertinent

230

to this case, the Court in Oregon v. Elstad,470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d222 (1985), held that a defendant's priorremark, in answer to a question during thepolice investigation, does not - "withoutmore" - make a subsequent statementinadmissible after a Miranda warning wasgiven. Elstad, 470 U.S. at 300, 309, 105S.Ct. 1285.

As Elstad and Tucker reiterate, the goals ofMiranda are to deter improper policeconduct and to assure trustworthy evidence,specifically evidence that has not beenobtained in circumstances that appear to becoercive. Elstad dealt with what the Courtdescribed as "a simple failure to administerthe warnings." 470 U.S. at 309, 105 S.Ct.1285. There was no intentional violation ofMiranda in Elstad, and the Court held "theadmissibility of any subsequent statementshould turn in these circumstances solely onwhether it is knowingly and voluntarilymade." Id

But what about circumstances such as thiscase where the violation of Miranda wasintentional? An intentional violation ofMiranda shifts the focus from the goal ofgaining trustworthy evidence - though thatis still a major concern - to the goal ofdeterring improper police conduct.

Intentional Miranda Violations

The police officer in this case purposefullywithheld a Miranda warning as part of atwo-step interrogation technique designed toelicit an initial confession before reading theaccused her rights, hoping that she wouldrepeat that confession. As noted, OfficerHanrahan testified that he made a consciousdecision not to advise Seibert of her rightsbecause he was hoping to get an admissionfrom her and specifically asked the arrestingofficer not to give a Miranda warning.

Officer Hanrahan characterized the strategyas follows:

Basically, you're rolling the dice. You'redoing a first stage where you understandthat if you're told something that when youdo read the Miranda rights, if they invokethem, you can't use what you were told.We were fully aware of that. We wentforward with the second stage, readMiranda, and she repeated the items shehad told us.

Securing a first admission - no matter howsmall - is often called the "breakthrough" or"beachhead". Interrogators are taught thatprocuring the first admission is the "biggeststumbling block" that, once overcome,usually leads to a full confession. "Thesubject must be motivated to make the firstadmission, no matter how apparently smallor trivial," according to Arthur S. Aubry, Jr.,& Rudolph R. Caputo, CriminalInterrogation 290 (3d ed.1980). "If thisadmission is related to the crime and to thesubject matter of the interrogation, there isevery reason to expect that the firstadmission will lead to others, and eventuallyto a full confession."

Once the officer has the initial admission,the officer uses "skillfully appliedinterrogation techniques" to "motivate thesuspect into making the confession." Id. at26. One of these techniques is to confrontthe suspect with the earlier admission, whichis what occurred in this case.

If a Miranda warning precedes theinterrogation, this is a perfectly legitimatetechnique. But in this case, the interrogationproceeded without the required warning, andthen after the first admission was made, onlya short break and then a Miranda warninginterrupted the interrogation.

231

This was undeniably an "end run" aroundMiranda. When an officer chooses to usethis tactic, the officer should, underMiranda, understand the risks of doing so.The biggest risk is that the prosecution maynot be able to use the statement in its case inchief. That risk, of course, may be weighedagainst the desirability of gettinginformation, such as the names of witnessesor location of physical evidence. And it maywell be, under circumstances that differfrom those in this case, that the prosecutionmay nevertheless be able to show that theconfession was voluntary despite theMiranda- based presumption to the contrary.

VoluntarinessAdmission

of the Subsequent

Upon finding an intentional Mirandaviolation, a court must ascertain whether thewarned statement was voluntary. In doingso, the court examines the facts andcircumstances to "determine the degree ofcausal connection between anyunconstitutional conduct (and the statementresulting therefrom) and the confessionmade later." State v. Fakes, 51 S.W.3d 24,30 (Mo.App.2001) (citing State v. Wright,515 S.W.2d 421, 426 (Mo. banc 1974)). Thecourt should ascertain whether the purposeof the violation was to "undermine thesuspect's ability to exercise his free will."Elstad, 470 U.S. at 309, 105 S.Ct. 1285.

In light of the record in this case, this Courtpresumes the violation of Miranda was atactic to elicit a confession and was used toweaken Seibert's ability to knowingly andvoluntarily exercise her constitutional rights.If the truth were otherwise, OfficerHanrahan would not have specificallyinstructed the arresting officer to refrainfrom giving a Miranda warning. He wantedto secure a "breakthrough" admission beforewarning Seibert of her rights because he

feared that she would assert those rightswere she made aware of them.

Another important consideration indetermining voluntariness is the proximityin time and place of the subsequentconfession. If the warned confession is farenough removed from the first confession,the accused more likely made a voluntarydecision to speak again. While eachsituation is fact-specific, courts can look towhether the subsequent confession closelyfollowed the first and was obtained by thesame officials in the same surroundings. Forexample, in the case at bar, Seibert wasquestioned for 30 to 40 minutes, in anintense manner. She became emotionalduring the interview and, at one point,Officer Hanrahan squeezed her arm andrepeatedly stated, "Donald was to die in hissleep." He continued in this manner untilSeibert agreed that Donald was supposed todie in the fire. Then, after a 20-minutebreak, Seibert was read and waived herMiranda rights. The same officersinterrogated her in the same room onlyminutes after her unwarned confession. Itwas at this point that she confirmed herunwarned statements.

In these circumstances, little if any weightcan be given to the fact that Seibert signed aMiranda waiver. I In State v. Fakes, the courtof appeals suppressed a similar confession.Fakes was interrogated at length while at thepolice station before receiving the Mirandawarning. The interrogation was intense, andofficials did not give Fakes a Miranda

I This is true even though Officer Hanrahan readeach part of Miranda to Seibert, having her orallyexpress her understanding of each rightindependently and then instructing her to initial andsign a waiver form. Adherence to such formality 30minutes into the interrogation does not change thefact that she was subjected to a nearly continuousinterrogation, which began without a proper Mirandawarning.

232

warning until she became emotional. Fakes,51 S.W.3d at 32. In suppressing Fakes' post-Miranda confession, the court questionedthe voluntariness of Fakes' Miranda waiver:"In view of the fact that she was soextensively interrogated before she wasadvised of her rights, it is not as clear as inWright and Elstad that she later voluntarilywaived those rights when, after finallyhaving been advised of her rights, sheconfirmed the statements made earlier." Id.at 33. In situations such as these, where theaccused is subjected to a nearly continuousperiod of interrogation, it is unreasonable toassume -and there is nothing in the record tosupport such an assumption - that the simplerecitation of Miranda would resurrect theopportunity to obtain a voluntary waiver.

The Eighth Circuit, in United States v.Carter, suppressed a written confession,which was executed after an initialunwarned interrogation that was followed bya Miranda warning. In Carter, postalinspectors interrogated the suspect, withoutgiving the Miranda warning, about hisalleged possession of stolen mail for nearlyan hour before he confessed. Theinterrogation took place in the bankpresident's office, in the building whereCarter worked, with Carter seated betweenthe two inspectors. United States v. Carter,884 F.2d 368, 372 (8th Cir.1989). The courtfound the second warned confession "camealmost directly on the heels" of the firstunwarned confession and that the unwarnedconfession, subsequent warnings andconfession were "part and parcel of acontinuous process." Id. at 373.

When presented with differentcircumstances, the result may be different.In Wright, for example, the accused wasbrought into the interrogation room whilethe officer was questioning another suspect.Without first advising Wright of his

constitutional rights, the officer asked him,"What did you do with the shotgun?" orwords to that effect. Wright replied, "Leroy,you know I gave you the shotgun. I don'tknow where it is at." The officer advisedWright not to make any further statements.Wright was then placed in juvenile custody.Wright, 515 S.W.2d 421, 423 (Mo. banc1974). In finding that Wright's subsequentstatements were not coerced, the court notedthe second interrogation was held thefollowing day, at a different location (thejuvenile building instead of the policestation), and with different people present(Wright's mother and juvenile officers). Idat 427.

Elstad also is distinguishable in that therewas no evidence, as in the instant case, thatthe breach of Miranda was part of apremeditated tactic to elicit a confession."The arresting officers' testimony indicatesthat the brief stop in the living room beforeproceeding to the station house was not tointerrogate the suspect, but to notify hismother of the reason for the arrest." Elstad,470 U.S. at 315, 105 S.Ct. 1285. The Elstadcourt did not find that the police engaged in"improper tactics".

Here, however, Officer Hanrahan candidlyadmitted that the breach of Miranda wasintentional and part of a tactic to elicit aconfession. It is presumed that this strategywas used to weaken Seibert's ability toknowingly and voluntarily exercise herconstitutional rights. Further, a 20-minutebreak and Miranda warning separating theunwamed confession from the warnedconfession was not enough to disturb thecontinuity of the interrogation where OfficerHanrahan tied the two stages of theinterview together by using her statements inthe first stage to correct her during thesecond stage.

233

Officer Hanrahan's intentional omission of aMiranda warning was intended to depriveSeibert of the opportunity knowingly andintelligently to waive her Miranda rights.Both stages of the interview formed a nearlycontinuous interrogation - she wasinterrogated by the same officials in thesame place with only minutes separating theunwarned and warned questioning. Thereare no circumstances that would seem todispel the effect of the Miranda violation.For these reasons, Seibert's post-Mirandawaiver and confession was involuntary and,therefore, inadmissible. To hold otherwisewould encourage future Miranda violationsand, inevitably, Miranda's role in protectingthe privilege against self-incriminationwould diminish. Were police able to use this"end run" around Miranda to secure the all-important "breakthrough" admission, therequirement of a warning would bemeaningless. Officers would have noincentive to warn, knowing they couldaccomplish indirectly what they could notaccomplish directly. Almost 20 years ago, inhis Elstad dissent, Justice Brennan predictedin what the Elstad majority described as an"apocalyptic tone" that Elstad would delivera "crippling blow" to Miranda. Elstad, 470U.S. at 318 n. 5, 319, 105 S.Ct. 1285. ***And, as evidenced by the testimony ofOfficer Hanrahan, officers not only haveincentive to intentionally interrogatesuspects without administering Miranda -they are being trained to do so. The Elstadmajority, however, said Brennan'sapocalyptic prediction - which is whathappened in this case - would not result.

Prejudice

Because the trial court erred in admittingSeibert's post-Miranda confession, the caseshould be reversed and remanded for a newtrial unless the error was harmless. State v.

Miller, 650 S.W.2d 619, 621 (Mo. bane1983). Seibert was convicted of seconddegree murder as an accessory forknowingly killing Donald Rector. The jurywas able to both read and hear herstatements that she knew the mobile homewas to be burned and that Donald could diein his sleep because he was on Prozac. Atone point, she agreed with Officer Hanrahanthat Donald was supposed to die in his sleepafter he reminded her of her pre-Mirandaconfession. Because of the evidentiarystrength of a confession, and because of thecontents of Seibert's involuntary statements,her statements certainly were not harmless.

Conclusion

The interrogation was set up to violateMiranda to secure a confession. The trialcourt suppressed only the unwarned portionof the interrogation. But on this record, theprosecution has not overcome thepresumption that this tactic produced aninvoluntary confession. The confession inthe remaining portion of the interrogationalso should have been suppressed.

The judgment is reversed, and the case isremanded for a new trial.

BENTON, J., dissents in separate opinionfiled. LIMBAUGH, C.J., and PRICE, J.,concur in opinion of BENTON, J.

DUANE BENTON, Judge.

Because the principal opinion does notfollow the binding precedent, Oregon v.Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84L.Ed.2d 222 (1985), I dissent.

Elstad holds that "a suspect who has onceresponded to unwarned yet uncoercivequestioning is not thereby disabled fromwaiving [her] rights and confessing after

234

[she] has been given the requisite Mirandawarnings." Elstad, 470 U.S. at 318, 105S.Ct. at 1298, 84 L.Ed.2d at 238. PatriceSeibert's unwarned responses to OfficerHanrahan's questioning did not prevent herfrom waiving her rights and confessing.

"In these circumstances [where thepreceding admission is unwarned butvoluntary], a careful and thoroughadministration of Miranda warnings servesto cure the condition that rendered theunwarned statement inadmissible." Elstad,470 U.S. at 310-311, 105 S.Ct. at 1294, 84L.Ed.2d at 233. In this case, theadministration of Miranda warnings wascareful and thorough, as demonstrated bythe tape recording of the administration, andby the form that Seibert initialed, dated andsigned. As in Elstad, the reading of Seibert'srights was undeniably complete andrecorded. Elstad, 470 U.S. at 314-315, 105S.Ct. at 1296, 84 L.Ed.2d at 236. Moreover,Seibert was 39 years old when sheconfessed. Appendix A to this opinion is the"Warning & Waiver Form." Appendix B isthe testimony discussing it.

"Though Miranda requires that theunwarned admission must be suppressed, theadmissibility of any subsequent statementshould turn in these circumstances solely onwhether it is knowingly and voluntarilymade." Elstad, 470 U.S. at 309, 105 S.Ct. at1293, 84 L.Ed.2d at 232. In this case,Seibert's unwarned admissions weresuppressed. The circuit court found that thewarned statement was knowingly andvoluntarily made. * * *

"It is an unwarranted extension of Mirandato hold that a simple failure to administer thewarnings, unaccompanied by any actualcoercion or other circumstances calculated

to undermine the suspect's ability to exercise[her] free will, so taints the investigatoryprocess that a subsequent voluntary andinformed waiver is ineffective for someindeterminate period." Elstad, 470 U.S. at309, 105 S.Ct. at 1293, 84 L.Ed.2d at 232. Inthis case, there was no "actual coercion" ofSeibert, or "other circumstances" thatundermined her free will. Elstad holds flatlythat the "psychological impact of voluntarydisclosure of a guilty secret" is not coercion,nor does it compromise the voluntariness ofa subsequent informed waiver. Elstad, 470U.S. at 312, 105 S.Ct. at 1294, 84 L.Ed.2d at234. The Elstad opinion disapproves such"cat out of the bag" logic as "expansive." Id.

"[A]bsent deliberately coercive or impropertactics in obtaining the initial statement, themere fact that a suspect has made anunwarned admission does not warrant apresumption of compulsion." Elstad, 470U.S. at 314, 105 S.Ct. at 1296, 84 L.Ed.2d at235. In Seibert's case, there were nodeliberately coercive tactics. *** There is noevidence of deliberately coercive tactics.

If there were substantial evidence that theofficer did the following - "inherentlycoercive police tactics or methods offensiveto due process that render the initialadmission involuntary and undermine thesuspect's will to invoke [her] rights oncethey are read to [her]" - then the warnedconfession should be suppressed. SeeElstad, 470 U.S. at 317, 105 S.Ct. at 1297,84 L.Ed.2d at 237.

At this critical point, the majority presumesthat the officer's strategy had the purpose "toweaken Seibert's ability to knowingly andvoluntarily exercise her constitutionalrights." No evidence supports thisassumption. Seibert did not testify at any

235

hearing or at trial. Officer Hanrahan testifiedat the hearing that his "hope" and "intent"were to gain some sort of confession oradmission of guilt. The officer did notmention "breakthrough" or "beachhead"interrogation. In addition to the "rolling thedice" paragraph quoted in the principalopinion, Officer Hanrahan testified thatwithholding Miranda rights at the outsetmeans:

A. You may not get any information at all.Q. In which part of the interrogation?A. In either part. You may never even getto the second stage.

Officer Hanrahan testified that based on twoprior conversations with Seibert, he believedshe expected to be arrested and would havea story rehearsed. Although defense counselasked Officer Hanrahan about interrogationtechniques at both the suppression hearingand the trial, the Officer - the only witnessto testify about the confession - stated thathis hope and intent was to gain a confessionor admission.

Elstad expressly commends confessions:"Voluntary statements 'remain a properelement in law enforcement.' Elstad, 470U.S. at 305, 105 S.Ct. at 1291, 84 L.Ed.2d at229, quoting Miranda v. Arizona, 384 U.S.at 478, 86 S.Ct. at 1630. "Indeed, far frombeing prohibited by the Constitution,admissions of guilt by wrongdoers, if notcoerced, are inherently desirable.... Absentsome officially coerced self-accusation, theFifth Amendment is not violated by even themost damning admissions." Elstad, 470 U.S.at 305, 105 S.Ct. at 1291, 84 L.Ed.2d at 229."When neither the initial nor the subsequentadmission is coerced, little justificationexists for permitting the highly probativeevidence of a voluntary confession to beirretrievably lost to the factfinder." Elstad,470 U.S. at 312, 105 S.Ct. at 1294-95, 84

L.Ed.2d at 234.

The principal opinion, in emphasizing thefactors of lapse-of-time, change-of-place,change-of-interrogators, and need-to-dissipate-taint, echoes the Oregon courtreversed in Elstad, and the other courtscriticized in Elstad Elstad, 470 U.S. at 303,310, 317-18, 105 S.Ct. at 1290, 1293, 1297,84 L.Ed.2d at 228, 233, 237. Elstad makesclear that these factors are considered only ifthe first confession is coerced. Id.

The principal opinion asserts that Elstaddoes not apply where police intentionallywithhold Miranda warnings before theinitial unwarned statement. True, Elstad, atone point, describes the initial unwarnedstatement as "technically in violation ofMiranda." Elstad, 470 U.S. at 318, 105 S.Ct.at 1297-98, 84 L.Ed.2d at 238. This passingcomment in Elstad does not support theprincipal opinion, as demonstrated in recentopinions by the Courts of Appeals.

On facts nearly identical to this case, theUnited States Court of Appeals for the NinthCircuit, en banc, held that Elstad applies solong as the initial unwarned statement is notactually coerced. United States v. Orso, 266F.3d 1030, 1035, 1039 (9th Cir. en banc),full en banc hearing denied, 275 F.3d 1190(2001). The United States Supreme Courtdenied certiorari on the Orso case, whilethis case was pending. 123 S.Ct. 125, 154L.Ed.2d 42 (2002).

It is also true that the Eighth Circuit hasmade statements to the contrary. UnitedStates v. Carter, 884 F.2d 368, 372-74 (8thCir.1989). However, yet another Circuit, theFirst, called Carter's statements "dicta" and

236

"facially inconsistent with the SupremeCourt's holding in Elstad" United States v.Esquilin, 208 F.3d 315, 320 (1st Cir.2000).The First Circuit then holds that deliberatewithholding of Miranda rights before theunwarned admission does not make a laterwarned statement inadmissible. Id at 320-21. Directly refuting the principal opinion'sreliance on "deterrence" against "impropertactics," the First Circuit holds:

Although Elstad does not permitsuppression of Esquilin's voluntarystatement made after he was informed ofhis Miranda rights and voluntarily waivedthem, the basic Miranda rule still operateshere to render Esquilin's initial unwarned(but voluntary) statement inadmissible.The Supreme Court has ruled thatMiranda's deterrence rationale requires nomore than that, see Elstad, 470 U.S. at308, 105 S.Ct. 1285, 84 L.Ed.2d 222, andwe are not free to ignore that judgement.

Id. at 321. The Esquilin case alsospecifically holds that Elstad rejects the"inearly continuous" and "time lapse"arguments, both invoked by the principalopinion. Id. at 319.

As for the other authority the principalopinion discusses, Elstad renders obsoletethe contrary approach in this Court'sdecision eleven years earlier in State v.Wright, 515 S.W.2d 421, 426-27 (Mo. banc1974), and in the Court of Appeal's decisionlast year in State v. Fakes, 51 S.W.3d 24, 30(Mo.App.2001).

*** On this record, there is substantialevidence that both the unwarned and warnedstatements were voluntary. Thus, underElstad, the warned statement is admissible,as the trial judge ruled.

237

APP:NDIX A

e S- aour-r mwrV o rcancwIARKIc 6 'AtVER 7OW

Before we ask you any questioM 4 you must ubderstat' what your riBhts rc:

. You do not have to make any stateaenL at thIs time and have arisht to remai elent.

. Anything you s"y can and will be used sainst you in a courtof law.

a oi are entitled to rmnnult virh an attoory before my inter-Viev a-nd to hava an attarney pt-esent at the im of interrvga-tics.

. I you canao &arnd &a A*torne. cie will be appodnted for

5. (Jivwcanl SuspecsE oqly) If you arm fourrcen ygs t oa*. orolder yet could be tried in Court aB an eduic.

I have read the above statement of my rights and I unrstand what myrighte are. I am willing to make a statement and answer qusatflnh. 7do not want a iaidyer at

trts tive. ! undaretaa and know wtsC I sa dots -

lo praidses or threats have been mm=d E6 ma end un prnsnuru or coercianof any kind bas been used against us.

Sigtature of Suspect Date / TIM

Witness Data Time

I hereby certify that tb fernoinc Warning and eiver was ruAd by as tothe abovu suspect, that the suspect also read it, md the suspect hasaffixed 1is {ler) eignature hereto in my preseuce.

Masature - 7olice Officer

ro. (in the ase ot a jirveilso1e OC, the attending DeputyJuvenile OffLeer)

238

APPENDIX B

Trial Testimony of Officer Richard E.Hanrahan (Excerpt * **)

Q. When you arrived at the station, youhad an initial conversation with her - isthat correct?

A. That's correct.

Q. After that initial conversation did youinform the Defendant of her rights underthe Miranda decision?

A. Yes, I did.

Q. I'd like to hand you what's beenmarked as State's Exhibit 37 and ask youif you can tell me what this is please?

A. Yes, sir - this is a rights advisementprovided by the detective with St. LouisCounty that night.

Q. And was that, in fact, read to theDefendant?

A. Yes, sir, it was.

Q. And did you ask her if she understoodeach of those rights as you read them toher?

A. As I read them to her, I simply check-marked them when I was finished. Iasked her if she understood each right.

Q. Did she indicate to you in somefashion whether she did or not?

A. Yes, she did.

Q. And what was her response in eachcase?

A. She indicated that she understood andshe signed next to each of the rights tostate that she understood.

Q. And sir, did you then read the waiverportion of the form?

A. I believe I let her read the waiver. I'dhave to check my report to be sure. Iusually allow the suspect to read thewaiver.

Q. How does that waiver read?

A. It says - "I have read the abovestatement of my rights and I understandwhat my rights are. I am willing to makea statement and answer questions. I donot want a lawyer at this time. Iunderstand and know what I am doing.No promises or threats have been madeto me and no pressure or coercion of anykind has been used against me."

Q. In fact, did you threaten theDefendant in any fashion?

A. I did not.

Q. *** Did you do anything that wouldbe taken as threatening by the averageperson?

A. I don't believe so - no, sir.

Q. Did you promise the Defendant anybenefit of any kind in order to induce herto speak with you?

A. The truth would make her feel muchbetter.

239

High Court Orders Retrial for Woman who wasn't Read Rights; She was Sentenced

to life in Prison for Role in a Fatal House Fire

St. Louis Post-Dispatch

December 15, 2002

David A. Lieb

A divided Missouri Supreme Court onTuesday overturned the murder convictionof a woman who implicated herself in a fatalhouse fire, ruling police failed to properlynotify her of the right to remain silent.

The court ordered a new trial for PatriceSeibert, who had been sentenced to life inprison on a second-degree murderconviction for her involvement in a February1997 fire at her Rolla mobile home.

Authorities say the fire was set by Seibert's17-year-old son and his friend to cover upthe apparently natural death of her 12-year-old son, Jonathan, who had cerebral palsy.But the fire killed Donald Rector, 17, whowas on medication for a mental disorder andhad been living at the house.

A Rolla police officer intentionallyquestioned Seibert without informing her ofher Miranda rights to remain silent or have

an attorney present. After Seibertacknowledged that Donald was supposed to

die in the fire, the officer took a short break,informed her of her Miranda rights andrenewed the questioning, referring to theinitial interview to get Seibert to repeat herstatements.

Only Seibert's second statement was used inher trial.

In a 4-3 decision, Missouri's highest courtsaid both statements should have been

barred from evidence. Judges appointed by

Democratic governors made up the majority;Republican-appointed judges dissented.

"The (initial) interrogation was set up to

violate Miranda to secure a confession,"

Judge Michael Wolff wrote for the majority.

"The confession in the remaining portion of

the interrogation also should have been

suppressed."

Wolff s opinion said the interrogating officer

specifically told the arresting officer not to

read Seibert her Miranda rights as part of a

tactic to elicit a confession. Wolff also said

there was not enough separation between the

two interrogations.

In dissent, Judge Duane Benton asserted that

the Missouri ruling ran contrary to a 1985U.S. Supreme Court precedent, as well as a

2001 federal appeals court case with anearly identical situation to Seibert's.

Seibert's first statement was not coerced andher second statement was voluntary. So herconviction should have been upheld, Bentonsaid.

Rolla Police Chief Dave Pikka said thepolice officer who questioned Seibert nolonger works for the department. But he saidthe two-step interrogation process -including the delayed notification ofMiranda rights - was not an unusual tactic.

240

"It is common among police in general, notjust in Rolla," Pikka said. "Many times whatcould happen is if you offer them theMiranda warning on the front end, theywon't give you that statement."

Seibert had been tried on a first-degreemurder charge, for which prosecutors wouldhave sought the death penalty. But jurorsacquitted her of that and instead convictedher of the second- degree murder charge,which cannot result in the death sentence.

Copyright C 2002 St. Louis Post-Dispatch.

241

New clamor on right to silence Miranda: Several local and Supreme Court cases arethe latest to test the long-standing warnings

The Baltimore Sun

June 26, 2003

Andrea F. Siegel

Over nearly four decades, Mirandawarnings have become so culturallyingrained - from America's courtroomsto television dramas - that the timeworndeclaration by police would seem to besettled and routine. Far from it.

And the U.S. Supreme Court has agreedto hear three cases that could give policemore leeway with the warnings. In onecase, Missouri police, who were trainedto sidestep the Miranda protections, useda two-part interrogation to obtain aconfession in a murder case.

"These cases pose a great danger toMiranda," says supporter Yale Kamisar,a law professor at the University ofMichigan and the University of SanDiego who has been writing aboutconfessions for 40 years. "If the courtbacks away, the original opinion doesn'tmean anything."

The warnings, which begin "You havethe right to remain silent," combine tworights aimed at preventing police abusesin questioning suspects: theconstitutional rights to a lawyer and tonot incriminate oneself.

The warnings are named for thelandmark 1966 Supreme Court rulingErnesto Miranda vs. Arizona, which was

designed to prevent coerced confessions.In tossing out Miranda's rape conviction,the court said he was not told of his rightto a lawyer. On top of his writtenconfession was a typed paragraph statingthat he knew his legal rights, but that didnot show he had intelligently waivedthose protections, the court said.

Today, the four warnings are a staple ofAmerican culture - so ingrained thatsuspects in Italy and Spain, where theprotections do not apply, have asked tobe read their rights, says Robert McCrie,chairman of the Department of Law andPolice Science at New York's John JayCollege of Criminal Justice.

The warnings have long been a target ofconservative groups and othersconcerned about the effect on crimecontrol. Although critics and supportersof Miranda point to studies andanecdotal evidence to back theirpositions, there is no definitive studyabout the case's effect.

"So many of us in law enforcement aregoing to seek to confine Miranda. Andpeople in criminal defense want toexpand Miranda," says Joshua K.Marquis, who is district attorney forClatsop County, Ore., and a boardmember of the National DistrictAttorneys Association.

242

Miranda and later rulings require thatpolice, before questioning a suspect incustody, must explain the right to remainsilent, to have a lawyer and to have alawyer appointed if the suspect cannotafford one. Police must also tell thesuspect that if he decides to talk, thosewords may be used against him.

Today, most police departmentsincorporate the warnings into writtenforms that suspects sign. Still, gray areashave emerged ever since the ruling, andthe high court has made exceptions tothe Miranda rule.

For example, police need not give thewarnings if they feel there is a publicsafety emergency. And even if asuspect's statement is thrown outbecause Miranda warnings weren'tgiven, a prosecutor can sometimes use itto show the suspect lied on the witnessstand.

"It keeps coming up because you haveall these little wrinkles. Was that aninterrogation? Was he in custody?" saysAbraham A. Dash, professor at theUniversity of Maryland School of Law."There is a line. But where the line is,God knows."

The three pending Supreme Court casescould shift that line.

"The court will take this opportunity toexplain and fine-tune and possibly cutback on Miranda vs. Arizona," saysByron L. Warnken, professor at theUniversity of Baltimore School of Lawwho has counseled police about Mirandaand served as a defense attorney.

Most worrisome for Miranda'sproponents is a two-step process -

headed for Supreme Court review - thatpolice used with murder suspect PatriceSeibert in a Missouri case. Inoverturning her murder conviction, thatstate's highest court called it "undeniablyan 'end-run' around Miranda."

An officer - who admitted that his andother police departments were trainedthis way - questioned her withoutexplaining her rights. After sheconfessed, he gave the Mirandawarnings, which she waived, andquestioned her based on what she hadtold him previously.

Defense lawyers say that technique, ifallowed by the Supreme Court, wouldgut Miranda because it would encouragepolice to use confessions and data gainedby deliberately not giving the warningsto unwary people.

But Paul D. Kamenar, senior executivecounsel of the Washington LegalFoundation, says it makes more sensefor judges to focus on whether aconfession is voluntary. Crucialevidence should not be tossed aside for aprocedural glitch. That, he says, risksfreeing a person who admitted to acrime.

Another case up for Supreme Courtreview is the Nebraska drug convictionof John Fellers, who says he was trickedby police at his home. Police told himthey were there because he was indictedand asked about his involvement withcertain people and drug activities. Hespoke freely. Police then arrested himand, while he was in custody, gave himMiranda warnings. At that point, hewaived his rights and again spoke withthem.

243

In the third case under review by thehigh court, Samuel Patane cut police offas they tried to explain his rights at hisColorado home, insisting he knew therights. He then told them where to findhis gun. A federal appellate court ruledthe gun inadmissible before Patane couldbe tried on a firearms charge; thegovernment has appealed.

and to have an attorney present duringquestioning.

If you cannot afford an attorney, one willbe provided for you.

Source: Adapted from Black's LawDictionary.

Copyright 0 2003, The Baltimore Sun

The Supreme Court cases come as policelook increasingly to scientific evidence,such as DNA analyses that can point to asuspect with a mathematical certainty."There is less reliance on custodialinterrogation," says David B. Mitchell,former Maryland State Policesuperintendent. He now teaches in thePolice Executive Leadership Program atthe Johns Hopkins University.

Still, a confession is prized evidence andcan make or break a case. A trial judge'sruling on alleged police misconduct cantrigger a plea, abruptly end a prosecutionor even land cases before the SupremeCourt for further honing of Miranda.

"It is never," says Marquis, the Oregonprosecutor, "going to be fully resolved."

Miranda warnings

Before questioning a suspect who isbeing taken into custody, police mustissue a version of these warnings:

You have the right to remain silent.

Anything you say can and will be usedagainst you in a court of law.

You have the right to have an attorney

244

The Supreme Court, 1984 Term; Leading Cases; Constitutional Law; Criminal LawRIGHT AGAINST SELF-INCRIMINATION -- CONSECUTIVE CONFESSIONS

99 Harvard Law Review I

November, 1985


Almost twenty years ago, in Mirandav. Arizona,I the Warren Courtpronounced the most widely publicizedcriminal justice opinion of its era,holding that suspects held in policecustody must be notified of their fifthand sixth amendment rights prior to anyinterrogation and that confessionselicited without such warnings cannot beadmitted into evidence against them incriminal proceedings. In the 1970s,however, a new majority of the Courtbegan to limit the scope of the Mirandaexclusionary rule in certain contexts.Last Term, in Oregon v. Elstad,2 theCourt still more sharply circumscribedMiranda's exclusionary scope byholding that a suspect's 'voluntary'confession obtained in violation ofMiranda does not presumptively taint alater confession elicited after properwarnings were given. In a moresweeping pronouncement, the Courtfurther held that the established rulebarring the use of evidence derived fromconstitutional violations does not applyto a 'simple' failure to administerMiranda warnings. In so doing, theCourt gave short shrift to the generalconcerns for judicial competence andeconomy and its declared goal ofdeterring improper police practices.More fundamentally, although the Court

purported to adhere to Miranda, itsreasoning evinces practical andtheoretical doubts about the continuingviability of the Miranda requirements.

On December 17, 1981, two countypolice officers went to the home ofeighteen-year-old Michael James Elstadwith a warrant for his arrest inconnection with a neighborhoodburglary. Elstad's mother allowed themin the house. After summoning Elstadalone into the living room, one of theofficers asked him a series of questionswithout administering any Mirandawarnings. The officer said that hebelieved Elstad had been involved in theburglary, and Elstad stated, 'Yes, I wasthere.' The officers then took Elstad tothe sheriffs office, where they advisedhim for the first time of his Mirandarights. Elstad proceeded to give a fulloral statement of his involvement in theburglary, which was later reduced to asigned confession.

At his trial for first-degree burglary,Elstad moved to suppress the first oralstatement and the written confession, thelatter on the ground that the oraladmission elicited in violation ofMiranda had induced him to make thelater confession. After excluding Elstad'sfirst oral statement, the trial courtadmitted the written confession, findingthat it was both voluntarily given anduntainted by the improperly obtainedstatement. Elstad was found guilty and

245

'384 U.S. 436 (1966).2 105 S. Ct. 1286 (1985).

subsequently appealed. Relying onUnited States v. Bayer,3 the OregonCourt of Appeals held that the statementobtained in violation of Miranda let thecat 'sufficiently out of the bag to exert acoercive impact' on Elstad during hissubsequent interrogation. Noting thatonly a brief period had separated the twoconfessions, the court of appeals held thewritten confession inadmissible andoverturned Elstad's conviction.

The Supreme Court reversed.Writing for a six-member majority,Justice O'Connor first rejected theapplicability of the so-called 'taintedfruit' or derivative-evidence doctrine toevidence derived from 'simple' Mirandaviolations. The Court emphasized thatthe Miranda exclusionary rule 'sweepsmore broadly than the Fifth Amendmentitself because it may operate to excludetestimony that was not actuallycompelled. In the Court's view, then,although a failure to administer Mirandawarnings creates an irrebuttable'presumption' that a suspect's statementwas coerced, it does not itself violate aconstitutional right; the statementtherefore is not 'inherently tainted.'Justice O'Connor concluded that if asuspect voluntarily confesses before theprescribed warnings have been given,Miranda requires suppression of theconfession itself, but not of any evidencederived from it. Relying on Michigan v.Tucker, 4 Justice O'Connor explained that'the absence of any coercion or impropertactics undercuts the twin rationales--trustworthiness of evidence anddeterrence of improper police conduct --for a broader rule.'

'331 U.S. 532 (1947).4 417 U.S. 433 (1974).

Recognizing that the subsequentconfession must itself by voluntary inorder to be admissible, Justice O'Connornext argued that the psychologicalimpact of having once confessed neitherconstitutes coercion by the state nor canbe presumed to be the motivating forcebehind the second confession throughsome 'subtle form of lingering[psychological] compulsion.' In theCourt's view, as long as the firstconfession was 'voluntary' in fact and thesecond confession was obtained afterproper administration of Mirandawarnings, the second confession shouldnot be presumed to have been giveninvoluntarily. A contrary rule, the Courtreasoned, would 'immunize a suspectwho responds to pre-Miranda warningquestions from the consequences of hissubsequent informed waiver of theprivilege of remaining silent.'

Finally, the Court rejected Elstad'scontention that he was unable to give acompletely informed waiver of his fifthamendment rights in making the secondconfession because he was unaware thathis prior admission could not be usedagainst him. Citing a number of cases inwhich a suspect's ignorance of the 'fullconsequences' of his decisions had notbeen held to negate their voluntariness,the Court concluded that the police neednot inform a suspect of the legalconsequences of an improperly obtainedconfession in order for the suspect togive a knowing and voluntary waiver ofhis Miranda rights. The Court explicitlyrejected as 'neither practicable norconstitutionally necessary' Elstad'ssuggestion that an additional warningshould have been provided to himrespecting the possible inadmissibility ofhis prior confession.

246

In a lengthy dissent, Justice Brennan,joined by Justice Marshall, rejectedvirtually every conclusion reached bythe majority. Justice Brennan firstdisputed the majority's view that anadmission obtained in violation ofMiranda should not presumptivelycompromise the voluntariness of asubsequent confession. Relying on theconclusions of numerous criminalinterrogations specialists, JusticeBrennan argued that a defendant's beliefthat he has little to lose by repeating anearlier confession can compromise thevoluntariness of the second confession.The majority was content to rely on thesubsequent recitation of Mirandawarnings to cure whatever coercionresults from a suspect's having confessedwithout the benefit of proper warnings.Justice Brennan, on the other hand,insisted the only certain well-recognizedintervening factors--such as a warningthat any earlier confession might beinadmissible, a significant lapse of timebetween the confessions, a change inlocation, or the intervention of counsel--should be presumed to transform acoercive atmosphere into one conduciveto the exercise of free will.

Justice Brennan then attacked themajority's holding that the derivative-evidence doctrine has no application tosimple Miranda violations. Arguing thatMiranda procedures are not merelyprophylactic safeguards of the privilegeagainst self-incrimination, JusticeBrennan contended that the fifthamendment not only requires exclusionof improperly obtained statements, butalso affirmatively requires that the policegive suspects Miranda warnings. JusticeBrennan therefore dismissed asfallacious the majority's position that astatement elicited in violation of

Miranda can at once be irrebuttablypresumed to have been compelled andyet actually uncoerced. Hence JusticeBrennan contended that the ruleexcluding evidence derived fromcompelled statements is 'coextensivewith the scope of the privilege' againstself-incrimination itself.'

The Court's decision in Elstadartificially bifurcates Miranda'spresumption that testimony inducedwithout the benefit of proper warnings isthe product of coercion. Under theCourt's new framework, Mirandaprocedures will continue to serve as abright-line test by which courts maydistinguish coercive from noncoerciveinterrogation for the purpose ofdetermining whether the fifthamendment requires exclusion of asuspect's custodial statements. Whenconsidering the admissibility ofderivative evidence, however, courts areno longer bound by this bright-line test.Because the costs of lost evidence arehigh and the benefits of further exclusionare low, courts must find 'actual'coercion in obtaining the originalstatement in violation of Miranda inorder to bar admission of derivativeevidence. When evaluated againstfamiliar justifications for bright- linejudicial presumptions, such asconsiderations of judicial competenceand economy, efficient translation oflegal norms into actual practices, andfulfillment of constitutional objectives,the Court's reformulation of Miranda'sbright-line test leaves much to bedesired.

The decision in Elstad also affordslaw enforcement officers positiveincentives to withhold Mirandawarnings strategically and thus vitiates

247

the ability of Miranda's bright-line testto instill norms of proper conduct in lawenforcement agents. With the assurancethat any evidence derived from avoluntary confession taken in violationof Miranda will be presumed admissiblein court, police officers can simply'forget' to give timely warnings.Assuming that Miranda warnings detersome suspects from confessing, policeunder Elstad can only gain by employingsuch tactics. Suspects who would haveconfessed even if given proper Mirandawarnings will arguably still confessunder more coercive conditions, andpolice can elicit the same statements byprompting the suspects to repeat theirconfessions after tardy administration ofthe warnings. For suspects who wouldnot have confessed if initially notified oftheir rights, and for suspects who refuseto repeat their confessions once sonotified, the police at least gain theinformation and evidence derived fromthe statements elicited in violation ofMiranda. As they have in other contexts,police officers may be expected to pushthe Elstad derivative-evidence loopholeto its limits and withhold Mirandawarnings whenever strategic objectivesare served.

Copyright C 1985 by the Harvard LawReview Association

248

02-1019 Arizona v. Gant

Ruling Below: (Ariz. Ct. App., 202 Ariz. 240, 43 P.3d 188)

Arrest of defendant after he voluntarily stopped his vehicle, exited it, and began to walk awaywith no awareness of police presence did not justify search of vehicle under rule of New York v.Belton, 453 U.S. 454 (1981), which held that Fourth Amendment permits police to searchpassenger compartment of vehicle incident to arrest of occupant; in absence of any otherjustification, search was illegal and its fruits should have been suppressed.

Question Presented: When police arrest recent occupant of vehicle outside vehicle, are theyprecluded from searching vehicle pursuant to New York v. Belton unless arrestee was actually orconstructively aware of police before getting out of vehicle?

The STATE of Arizona, Appellee,V.

Rodney Joseph GANT, Appellant.

Court of Appeals of Arizona,Division 2, Department A.

Decided March 29, 2002


BRAMMER, Presiding Judge.

After a jury trial, appellant Rodney Gant wasfound guilty of unlawful possession of cocainefor sale and unlawful possession of drugparaphernalia. The trial court sentenced him toconcurrent, mitigated prison terms, the longestof which was three years. Because we agreewith Gant that the trial court erred in denyinghis motion to suppress evidence, we reverse hisconvictions.

Standard of Review and Background

Gant argues that the trial court erred in denyinghis motion to suppress a handgun and a plasticbag of cocaine found when his vehicle wassearched after his arrest, asserting that thewarrantless search violated his Fourth

Amendment rights. When reviewing a trialcourt's ruling on a motion to suppress evidencebased on an alleged Fourth Amendmentviolation, we defer to the court's factual findingsbut review de novo mixed questions of law andfact. State v. Wyman, 197 Ariz. 10, 3 P.3d 392(App.2000). Because warrantless searches arepresumptively unreasonable andunconstitutional under the Fourth Amendment,the state bears the burden of proving thelawfulness of the acquisition of evidence seizedwithout a warrant. Rodriguez v. Arellano, 194Ariz. 211, 979 P.2d 539 (App.1999); see alsoState v. Valle, 196 Ariz. 324, 996 P.2d 125(App.2000). In determining whether the statehas carried that burden, we consider only theevidence presented at the suppression hearing.See State v. Sanchez, 200 Ariz. 163, 24 P.3d 610(App.2001). And, we view that evidence in thelight most favorable to sustaining the trialcourt's ruling. Id.

249

At the hearing on Gant's motion to suppress, thecourt stated:

Are any of the facts in issue? It seemed to methat from your respective briefs, that theredidn't seem to be any disagreement. As Iunderstand the facts - and let me repeat what Iunderstand they are: That this arose out of areport of possible narcotic activity; . policewent to the residence, knocked on the door.The defendant answered....

... [The police] ran a computer check onRodney Joseph Gant and found that he waswanted on a suspended driver's license and,also, an outstanding warrant for failure toappear....... [The police] left and then came back to theresidence, found a man and a woman aroundthe residence. The woman had a crack pipe.The man, they didn't apparently find anycontraband on him. Then the defendantarrived, driving a vehicle, and the officer, asthe car pulled into the driveway, shined hisflashlight into the car, recognized Mr. Gant asthe individual he had previously met at thedoor and identified him as Mr. Gant.And as the officer was walking toward thevehicle, Mr. Gant got out of the vehicle andstarted walking toward the officer when theofficer called him by name, and he respondedthat that was who he was. And the officertook him in custody for the outstandingwarrant and suspended driver's license, havingseen him operating a motor vehicle....[T]here's no question that [the officer] couldlegally arrest and did lawfully arrest thedefendant on the outstanding warrant and foroperating a motor vehicle without a driver'slicense.Gant was removed from the vehicle - from thevicinity of the vehicle to the officer's patrolcar and placed in the back of the patrol car,and the officers then did a search of thedefendant's vehicle, found a weapon and

found the jacket. And, apparently, feeling thejacket, felt something that they felt might bedrugs and took it out of the pocket and foundcocaine.

Gant's counsel stated that, "if the State concedesthose are the facts, I think those are factssufficient to proceed on the motion." Theprosecutor replied: "I have no disagreementwith the facts. I'd be happy to submit, also, onmy pleading as well." Consequently, the partiesdid not introduce any evidence at thesuppression hearing either in support of or inopposition to Gant's motion.

In his motion to suppress the evidence found inhis vehicle, Gant did not contest the lawfulnessof his arrest but, rather, argued only that theensuing warrantless search of his vehicle wasillegal because no exceptions to the FourthAmendment's warrant requirement applied. Thestate argued that the search was lawful becauseit had been conducted incident to Gant's arrestor, alternatively, that, because the police hadprobable cause to search his vehicle, awarrantless search was permissible under theautomobile exception to the FourthAmendment's warrant requirement. The trialcourt denied Gant's motion, finding that thesearch of the car was lawful because it was asearch incident to his arrest. We disagree.

Warrantless Search Incident to Arrest

In Chimel v. California, 395 U.S. 752, 763, 89S.Ct. 2034, 2040, 23 L.Ed.2d 685, 694 (1969),the Supreme Court held that, when police makea lawful arrest, they may, without a warrant,search the person in custody as well as the "areafrom within which he might gain possession of aweapon or destructible evidence." Applying thatprinciple to a situation in which the personarrested had been occupying a vehicle whenpolice initiated contact with him, the Court laterheld that officers may search the entire

250

passenger compartment of a vehicle, and allcontainers therein, as a "contemporaneousincident" of a lawful arrest. New York v. Belton,453 U.S. 454, 460, 101 S.Ct. 2860, 2864, 69L.Ed.2d 768, 775 (1981).' This rule,denominated "bright-line" by one of thedissenting justices, id at 463, 101 S.Ct. at 2866,69 L.Ed.2d at 777, was premised on thegeneralization, rather than the probability in agiven case, that objects within a vehicle'spassenger compartment are within an arrestee'sreach. Even so, the Court specifically statedthat its holding was limited to the "particularand problematic" context in which it had arisen,and did not "alter[ ] the fundamental principlesestablished in the Chimel case regarding thebasic scope of searches incident to lawfulcustodial arrests." 453 U.S. at 460 n. 3, 101S.Ct. at 2864 n. 3, 69 L.Ed.2d at 775 n. 3; seealso State v. Lopez, 198 Ariz. 420, 10 P.3d 1207(App.2000).

Taking Belton one step further, the Ninth CircuitCourt of Appeals held that a vehicle searchconducted five minutes after an arrestee hadbeen removed from both the automobile and thescene qualified as a search incident to arrestunder Belton because the search had "occurredduring a continuous series of events closelyconnected in time to the arrest." United States v.McLaughlin, 170 F.3d 889, 891 (9th Cir.1999);see also United States v. Doward, 41 F.3d 789(1st Cir.1994).

The state contends that the question of whether

i In Belton, the Court also used the term "recentoccupant," which, when read in context, clearly refers tosomeone who, once arrested and removed from a vehicle,necessarily becomes its "recent occupant." 453 U.S. at460, 101 S.Ct. at 2864, 69 L.Ed.2d at 775. Some courtshave, in our opinion, misconstrued this language to justifyextending Belton's reach to cases in which a personvoluntarily exited a vehicle before the police initiated anycontact. See, e.g., Glasco v. Commonwealth, 257 Va.433, 513 S.E.2d 137 (1999).

Belton applies to Gant's situation "appears to bea matter of first impression in Arizona."2 Weagree and conclude that, not only are Beltonand McLaughlin both factually distinguishablefrom this case, but also that the rationaleunderlying those cases does not extend to thissituation. We further conclude, therefore, thatthe warrantless search of Gant's vehicle was nota lawful search incident to his arrest.

In Belton, an officer stopped the vehicle inwhich Belton was a passenger because theofficer had seen the vehicle speeding. InMcLaughlin, an officer stopped the vehiclebecause it had an illegally tinted rear window.Here, in contrast, the facts as summarized by thetrial court do not show, nor can we infer, thatGant was or should have been aware either ofthe police presence at the residence as heapproached it or of the light the officer shinedinto his vehicle. And if, as the state suggested atoral argument in this court, the trial courtimplicitly drew either inference, we conclude iterred in doing so because neither inference isreasonably suggested by these facts. What isclear from these facts, however, is that Gantvoluntarily - that is, not in response to policedirection - stopped his vehicle, exited it, andbegan to walk away from it. We believe thatthis factual distinction is significant and requiresa different result than that in Belton andMcLaughlin.

We agree with the holding of United States v.Strahan, 984 F.2d 155 (6th Cir.1993), in whichthe Sixth Circuit Court of Appeals determinedthat Belton was inapplicable to a situation inwhich an arrestee had been apprehended

2 In contrast to that assertion in its brief, at oral argumentin this court, the state referred to this as a "run-of-the-millBelton case," citing State v. Crivellone, 138 Ariz. 437,675 P.2d 697 (1983), and State v. Hanna, 173 Ariz. 30,839 P.2d 450 (App.1992). Crivellone and Hanna,however, both involved situations in which officersstopped a suspect's vehicle, which was not the case here.The state's reliance on these cases, therefore, is misplaced.

251

approximately thirty feet from his automobilebecause the police had not initiated contact withhim until that time and, therefore, he was not anoccupant of the vehicle. The court instead heldthat the test outlined in Chimel applied. Wefurther agree with the reasoning expressed inUnited States v. Fafowora, 865 F.2d 360(D.C.Cir.1989), in which the court heldinapplicable the rationale underlying Belton'sbright-line rule allowing police to search theentire passenger compartment of a vehicle - thatit is, at least hypothetically, within the reach ofits arrested occupant--to a case in which thepolice had first encountered the arrestee outsidethe automobile. In such cases, the court said,the twin concerns of officer safety and evidencepreservation that justify, at least theoretically,the search-incident-to-arrest exception to thewarrant requirement discussed in Chimeldisappear because the vehicle's passengercompartment is not available to the arrestee atthe time the police encounter or arrest theperson. Other courts have expressed similarreasoning and have reached similar results.Lewis v. United States, 632 A.2d 383(D.C.1993); Thomas v. State, 761 So.2d 1010(Fla.1999); State v. Foster, 127 Idaho 723, 905P.2d 1032 (Ct.App.1995); People v. Stehman,324 Ill.App.3d 54, 257 Ill.Dec. 607, 753 N.E.2d1233 (2001); Commonwealth v. Santiago, 410Mass. 737, 575 N.E.2d 350 (1991); People v.Fernengel, 216 Mich.App. 420, 549 N.W.2d361 (1996).

By its own terms, Belton is limited to theparticular factual situation in which it arose.Accordingly, it applies only when "the officerinitiates contact with the defendant, either byactually confronting the defendant or bysignaling confrontation ... while the defendant isstill in the automobile, and the officersubsequently arrests the defendant (regardless ofwhether the defendant has been removed fromor has exited the automobile)." United States v.Hudgins, 52 F.3d 115, 119 (6th Cir.1995); seealso Thomas. We believe that "the Belton

objectives and Fourth Amendment principlesare best served by limiting Belton's" reach inthis way. Foster, 905 P.2d at 1039.3 However,we emphasize that, when police attempt toinitiate contact by either confronting orsignaling confrontation, a vehicle's occupantcannot avoid Belton's application and create ahaven for contraband simply by exiting thevehicle when officers are seen or approach. Ifthe record shows that police overtly initiatedcontact before a suspect exits a vehicle and thesuspect is subsequently arrested, the vehiclemay nonetheless be searched without a warrantincident to an arrest under Belton. See, e.g.,United States v. Mans, 999 F.2d 966 (6thCir.1993).

The two cases the state asserts "are notmeaningfully distinguishable" from this case,State v. Wanzek, 598 N.W.2d 811 (N.D.1999),and People v. Savedra, 907 P.2d 596(Colo.1995), can, in fact, be distinguished onthis very basis. In Wanzek, the arresting officertestified that, when he had pulled up next to thedefendant in his patrol car, she had "looked overat [him], looked straight ahead, backed thevehicle up, and exited the vehicle." 598 N.W.2dat 813. And, in Savedra, the court stated that,because the defendant had been in his vehiclewhen he "first saw the police officer approach,"it was "not unreasonable to assume that heexited the vehicle to avoid contact with thepolice officer." 907 P.2d at 599-600.

In contrast, the summarized facts here do notshow, nor can we infer, that the police attemptedto initiate contact with Gant while he was still in

3 We acknowledge that not all courts agree with thisconstruction of Belton. See, e.g., United States v.Sholola, 124 F.3d 803, 817 (7th Cir.1997) (extendingBelton to a case in which the defendant was not anoccupant but was " 'positively linked' " to the vehicle atthe time of his arrest), quoting United States v. Adams, 26F.3d 702, 705 (7th Cir.1994); United States v. Snook, 88F.3d 605 (8th Cir.1996); United States v. Schecter, 717F.2d 864 (3d Cir.1983); see also Glasco.

252

his vehicle or that he had attempted to evadecontact with the police by exiting his vehicle.Contrary to the state's assertion, we do notbelieve that, by shining a flashlight into Gant'svehicle, the officer necessarily initiated contactwith him. These facts do not show the distancebetween Gant's vehicle and the officer, eitherwhen he shined the flashlight at Gant's car orwhen the officer approached it after Gant hadexited it, or that a person in Gant's positionwould even have been aware that a light hadbeen shined into the vehicle, much less who hadshined it. Nothing shows or suggests that Gantlooked in the direction of the light when it wasshined or that he had seen officers or any othersign of police activity at the residence, such asflashing emergency lights, marked policevehicles, or uniformed officers, either when hearrived at the residence or before he exited hisvehicle. The record is also silent about thelighting in the areas where Gant parked hisvehicle, those places where the officers werepositioned when he arrived, and the spaces thatseparated those areas. Additionally, the recorddoes not support a finding that Gant was orshould have been aware of anyone's approach ashe exited his vehicle.4 Furthermore, nothing inthe record shows that, by shining the light, theofficer was attempting to signal his intent toconfront Gant. Rather, the officer might simplyhave been attempting to ascertain the identity ofthe vehicle's occupant as he observed thevehicle approach the residence. Lastly, therecord does not reflect the time each of these

4 Citing the following statements the trial court madewhen denying Gant's motion to suppress, the state assertsthat the court made implicit factual findings that Gant hadbeen aware of the police presence at the residence and hadbeen only a few steps away from the officer when contactoccurred. The court stated: "I don't think [Gant] canlimit the scope of the search by vacating the car fasterthan the officers can get up to the car," and "[t]he fact thatMr. Gant was fast enough or clever enough to get out ofthe vehicle I don't think limits the officer's ability tosearch the vehicle." But, nothing in the trial court'sfactual summary, nor any reasonable inferencestherefrom, supports those remarks.

various events consumed nor the time intervalsseparating them.

It is unfortunate that the record was not basedon witnesses' testimony, under both direct andcross-examination but, rather, on the trial court'sapparently extemporaneous summary of thefacts as it understood them from the materialscontained in Gant's motion to suppress and thestate's opposition to it. We believe the betterpractice is to have the facts flow from witnesstestimony and other admitted evidence or to bestated in a written stipulation of the parties.Indeed, the law favors a stipulation of facts,especially if the stipulation is carefullyconsidered and crafted in advance of a hearingor trial, that would be binding both below andon appeal. See State v. Sorrell, 109 Ariz. 171,506 P.2d 1065 (1973); Bennett ex rel. ArizonaState Personnel Comm'n v. Beard, 27 Ariz.App.534, 556 P.2d 1137 (1976). We can onlyobserve that many of the critical facts that bearupon resolution of the contested issues wouldlikely have been addressed had the partiesquestioned witnesses. We appreciate a trialcourt's attempt to conserve judicial resources byacknowledging its understanding of the factualbackground and the parties' relative positions atthe outset of a contested matter. But, this doesnot relieve the party bearing the burden ofpersuasion, here the state, from ensuring that therecord contains adequate information forjudicial decision-making at both the trial andappellate levels. See State v. Rogers, 186 Ariz.508, 924 P.2d 1027 (1996) (stressing necessityof making factual record below in order forappellate court to decide fact-intensive issue andbase holding on it).

Accordingly, the record before us does notsupport a finding that the police were attemptingto initiate contact with Gant while he was in thevehicle either by confronting him or bysignaling an intent to confront him,notwithstanding the officer's shining theflashlight. Therefore, the search of Gant's

253

vehicle was outside the scope of Belton. SeeLewis, 632 A.2d at 388 ("[A]ppellant had leftthe vehicle and [had] become a pedestrianbefore the police officer initiated contact withhim; he was not an 'occupant' within themeaning of Belton."). Because the narrowBelton exception is inapplicable, the searchmust satisfy the Chimel test to have been alawful search incident to Gant's arrest. SeeStrahan; see also Fafowora. Because thepassenger compartment of his vehicle was not "'within his immediate control' " at the time ofhis arrest, Chimel, 395 U.S. at 763, 89 S.Ct. at2040, 23 L.Ed.2d at 694, the search was notconducted as an incident to his arrest. Strahan;see also Fafowora. Because the state failed tomeet its burden of proving that the warrantlesssearch of Gant's vehicle was a lawful searchincident to his arrest, we must reverse the trialcourt's denial of his motion to suppress theevidence found in his vehicle unless the searchcan be justified by another exception to theFourth Amendment's warrant requirement. SeeValle.

Probable Cause

Because we can uphold a trial court's ruling on amotion to suppress if the court reached thecorrect result even though based on an incorrectreason, State v. Nadler, 129 Ariz. 19, 628 P.2d56 (App.1981), we must consider the state'salternative argument that the police werejustified in searching Gant's vehicle independentof the search-incident-toarrest exception. Thestate asserts that, because Gant was present at ahouse where narcotics trafficking was suspectedto be occurring and where the police had founda person with drug paraphernalia,5 the policehad probable cause to search Gant's vehicleunder the automobile exception to the warrant

'in its answering brief, the state cites additional facts thatwere not included in those summarized by the trial courtat the hearing on Gant's suppression motion. Therefore,we do not consider them in our analysis. See Sanchez.

requirement. See State v. Weinstein, 190 Ariz.306, 947 P.2d 880 (App.1997) (police maysearch vehicle without warrant if vehicle readilymobile and if they have probable cause tobelieve it contains contraband). That exception,however, is inapplicable here.

The state has not cited any case, nor have wefound any, in which the police were found tohave probable cause to search a vehicle basedon facts such as these. Based on the sparselydeveloped factual record before us on this issue,we must conclude that the police did not haveprobable cause to believe that Gant's vehiclecontained contraband. Indeed, it would beinappropriate for us to do otherwise. SeeRogers.

Conclusion

In sum, the state failed to meet its burden ofproving the legality of the warrantless search ofGant's vehicle. See Valle; RodriguezTherefore, the trial court erred in denying Gant'smotion to suppress the evidence found in hisvehicle. Because of our resolution of this issue,we need not address Gant's remaining argumenton appeal. We reverse Gant's convictions andsentences.

FLOREZ, J., concurs.

PELANDER, Judge, specially concurring.

I concur with the court's opinion but writeseparately to make several additionalobservations. Cases such as this are difficultand have produced disparate results around thecountry primarily because the law relating towarrantless vehicle searches after Belton hasbecome so muddled. As Justice Lacy noted inher concurring opinion in Glasco v.Commonwealth, 257 Va. 433, 513 S.E.2d 137,142 (1999) (Lacy, J., concurring):

[N]othing in Belton specifically defined what

254

circumstances qualified an arrestee as a"irecent occupant." Consequently, from itsinception, application of the so-called "brightline" Belton rule has not provided clearresolution of search issues in cases with factsthat do not mirror the facts in Belton or theprecise words of the rule.

The Belton rule was premised, at leasttheoretically, on concerns for officer safety andevidence preservation. See New York v. Belton,453 U.S. 454, 457, 101 S.Ct. 2860, 2862, 69L.Ed.2d 768, 773 (1981); State v. Hanna, 173Ariz. 30, 32, 839 P.2d 450, 452 (App.1992).As routinely applied, however, the rule "may beinvoked regardless of whether the arrestingofficer has an actual concern for safety orevidence." United States v. McLaughlin, 170F.3d 889, 891 (9th Cir.1999). See also Hanna;State v. Wanzek, 598 N.W.2d 811 (N.D.1999);Glasco. As Judge Trott aptly noted in hisconcurring opinion in McLaughlin: "In ourapplication of Belton's 'bright-line' [rule] ... therationales behind the search incident to arrestexception have been abandoned, the purpose hasbeen lost, and, as Chief Justice Rehnquistpredicted, little certainty remains." 170 F.3d at894 (Trott, J., concurring).

"The purposes behind Belton were two-fold: tocreate a single familiar standard to guide policeofficers in automobile searches and to eliminatethe need for litigation in every case to determinewhether the passenger compartment of thevehicle is within the scope of a search incidentto arrest." Wanzek 598 N.W.2d at 815. Seealso Belton, 453 U.S. at 458-60, 101 S.Ct. at2863-64, 69 L.Ed.2d at 774-75; Glasco, 513S.E.2d at 141. Based on the varying results ofcases decided in the twenty years followingBelton, it is questionable whether thosepurposes have been achieved. And, I havesome concerns that our ruling today, althoughcorrect on the very sparse, undeveloped recordbefore us, may frustrate those purposes andincorporate unintended nuances into this already

complicated Fourth Amendment arena. As thestate points out, the fine lines that courts mayhave to draw in this area are problematic:

[W]ould a suspect who has one foot in thevehicle and one on the ground be deemed "in"or "out" for purposes of Belton? Would thatdepend on whether some part of his body wasstill touching the seat? What if he had bothfeet on the ground but the door is still openand he's leaning into the passengercompartment--or just reaching in? What ifhe's sitting on the tailgate of a station wagonbut his feet are touching the ground--could hemerely stand up to render Belton inapplicable?What if the suspect is standing outside thevehicle but has left the engine running? ...[C]ould the initial contact [by police] be non-verbal, such as a signal by hand, whistle, orflashlight? Or, because an actual-occupancyconcept necessarily depends on the suspect'sprecise physical location at the time ofcontact, would the initial contact have toinvolve at least the officer's present ability tomake immediate physical contact? Undersuch a rule, given the endless variations in thefacts that Fourth Amendment issues inevitablyengender, suppression hearings on Beltonsearches could become extended mini-trials onfactual minutiae, and the actions of policeofficers in the field would have no predictablelegal consequences in the courtroom.

Regardless of whether those issues and concernsmay be legitimate, this case does not raise anyof them. Fourth Amendment determinationstypically involve fact-intensive inquiries and,inevitably, line-drawing. And resolution of anysuch issues, of course, depends on analysis ofspecific facts actually presented in a particularcase. Based on the record here, the state simplydid not carry its burden of establishing thelegality of the warrantless search of Gant'svehicle.

Nonetheless, I agree with the state's protest that

255

"police should not have to run a footrace toimplement Belton." See Wanzek, 598 N.W.2d at815 ("Police officers should not have to racefrom their vehicles to the arrestee's vehicle toprevent the arrestee from getting out of thevehicle in order to conduct a valid search.");Thomas v. State, 761 So.2d 1010, 1014(Fla.1999) ("[Tihe arrest and subsequent searchshould not be invalidated merely because thedefendant is outside the automobile. Theoccupants of a vehicle cannot avoid theconsequences of Belton merely by steppingoutside of the vehicle as the officersapproach."). Indeed, our opinion expresslyemphasizes that point. I further note that wedo not limit Belton's reach to cases in whichpolice first initiate or attempt to initiate contactwith the arrestee when he or she is in a moving,as opposed to a parked or otherwise stationary,vehicle.

Despite my concerns about the state of the lawin this area, affirming the trial court's ruling here

essentially would not only overlook, but alsotacitly approve of the significant factualdeficiencies in the record; minimize the state'sburden of establishing the legality of thiswarrantless search; disregard the SupremeCourt's cautionary note in Belton that it was "inno way alter[ing] the fundamental principlesestablished in the Chimel case regarding thebasic scope of searches incident to lawfulcustodial arrests," 453 U.S. at 460 n. 3, 101S.Ct. at 2864 n. 3, 69 L.Ed.2d at 775 n. 3; andstretch the concept of "recent occupant" beyondBelton's intended, contextual meaning. SeeGlasco, 513 S.E.2d at 144 (Lacy, J., concurring)(noting that in all but one case cited in Belton onthis point, "the arrestee was arrested while in thevehicle, and in all the cases the search of thevehicle occurred after the arrestees exited thevehicles at the direction of the police and whilethey were still within close proximity of thevehicles"). Accordingly, I concur that the trialcourt erred in denying Gant's motion tosuppress.

256

Court agrees to look at police search rules

Associated Press Newswires

April 21, 2003

WASHINGTON (AP) - The Supreme Courtagreed Monday to take a fresh look at policerules for searching stopped cars.

The court agreed to hear an appeal fromArizona, in which police arrested a man whohad just parked his car in a driveway.

A search of Rodney Gant's car turned upcocaine and drug paraphernalia. A stateappeals court ruled that the evidence couldnot be used against Gant because he did notknow police were after him when he parkedthe car.

The appeals court wrongly interpreted anearlier Supreme Court case when it ruled forGant on that point, and other state andfederal courts have made the same mistake,former Arizona Attorney General JanetNapolitano wrote.

The lower court determined that under the1981 Supreme Court ruling, police shouldhave confronted Gant or signaled to himbefore he parked.

An officer walked toward the parked carand shined a flashlight inside. Gant then gotout and met the officer outside the car. Hewas arrested on an outstanding warrant in anunrelated case.

257

The Supreme Court, Criminal Procedure and Judicial Integrity

American Criminal Law Review

Winter, 2003

Stephen A. Saltzburg


III. BRIGHT LINE RULES

There are many more examples whichcould be offered to show that the world oflaw enforcement as described by theSupreme Court is very different from thereal world as perceived by many people.But, as there are other subjects to cover, it istime to turn to the subject of bright linerules. I submit that the only bright line rulesthat make sense and provide reasonableguidance to law enforcement, whileappropriately protecting privacy, are thosebased on principle.

A. Searches Incident to Arrest

In Chimel v. California,41 the Court, aftermuch vacillation, finally decided how farpolice could go in searching a home incidentto arrest and, in the process, articulated arationale that any reasonable police officershould have been able to follow. The Courtsaid there are two reasons for making asearch incident to arrest. First, officers needto take any weapons away from an arresteethat could be used to resist arrest or harmofficers or the subject. Second, officers needto prevent destruction of evidence. Withthese rationales clearly stated, the Courtoffered a reasonable rule: officers maysearch the subject's person and the area intowhich a subject could reach in order to

42obtain a weapon.

This rule is so clearly based upon the

rationales offered for the search that any

officer should have little doubt how to apply

it. It might be true that some officers would

intuit that a suspect could reach farther than

other officers might, but such differences of

view should matter little in day-to-daypolice work. Any reasonable judgment by

the police should be upheld.

When a rationale is so clear, cases thatotherwise might be hard should be easy. In

United States v. Edwards, 43 the Courtactually should have had a much easier timethan it did in upholding a search of an

arrestee's clothes some hours after the arrest.The Court maintained that the arrest processwas not completed, but it is hard to see whatremained. The better approach would havebeen to focus on the rationales of Chimeland hold that, if it is possible that an arresteemay still have evidence or a weapon, asearch incident is permissible. Principlesmatter, and when they are clear, theyprovide guidance as to how to deal with newfacts.

Despite the clarity of the rationales offeredby Chimel, the Court maintained that there

42 Id. at 762-63.

41 395 U.S. 752 (1969). 415 U.S. 800 (1974).

258

was a need for a "bright line" rule in NewYork v. Belton.4 5 An officer stopped a carfor speeding, suspected that the fourpassengers possessed marijuana, arrestedthem, and searched a jacket in the car beforeremoving the suspects from the scene in hisautomobile. If ever there were an exigentcircumstance search, this was it. The officerwas removing four suspects from the scene,had probable cause to believe the carcontained drugs, and could not reasonablybe expected to leave the car unprotectedwithout first looking for the drugs. But theSupreme Court did not uphold the search onthis ground. Instead, it maintained that therewas a need for a bright line rule that policecould search the passenger compartment of acar including any containers found therein,incident to any arrest of an auto occupant.

The Court suggested that there was someneed for this rule, and Justice Stewart, whowrote Chimel, authored the majority opinionin Belton. But Belton lacked principle. Inany case in which an officer orders someoneout of a car and arrests that person, if theperson cannot reach into the car there is noreason why the car should be subject tosearch. The only reason offered in Belton isthat the Supreme Court says so. As a result,if a lawyer has confidential files in a lockedbriefcase in the backseat of a car and thelawyer is arrested for not coming to acomplete stop at a stop sign, an officer mayhandcuff the lawyer, place the lawyer in theofficer's car, and then break open thebriefcase and search it (which presumablymeans reading privileged correspondence).Why? Again, the answer is because theSupreme Court said so.

When the officer arrests someone on a bus,as in Bostick and Drayton, what is the scopeof search incident to arrest? Is it the

passenger compartment of the bus? No onecan answer this question confidently afterBelton because a bright line rule that is notbased on principle is arbitrary and cannotprovide an answer to even a slight change offacts. What about the arrest of a taxi driverfor speeding? Does the passengercompartment of the car, including thepassenger's belongings, get searched? Thereis no answer in Belton because the decisionis arbitrary and unprincipled. It is a brightline rule without a reason.

If an officer arrests someone about to entera car, does Belton apply? Suppose an officerstops a car, the driver gets out, and thereafterthe officer makes an arrest? Does Beltonapply? If an officer arrests someone who hasjust driven a car, does Belton apply? UnderChimel, the answer to all these questionsshould be easy: the officer may search if heor she reasonably believes that the arresteecould reach into an area for a weapon or todestroy evidence. Because of Belton, wemust await the announcement of anotherbright line rule.

B. Automobile Searches

Belton involved a search of an automobile,but the search was incident to arrest. Bright-line rules seem particularly attractive whenapplied to cars generally, as the automobileexception demonstrates. That exception wasarticulated in Carroll v. United States48 andinvolved a prohibition- era stop of anautomobile and a search for liquor. At thetime, Terry v. Ohio was not decided, and theCourt did not therefore have occasion toaddress whether a seizure of a car while awarrant was obtained might have beenrequired (although there might well havebeen exigent circumstances similar toBelton). When it did confront the question in

48 267 U.S. 132 (1925).

259

45 453 U.S. 454 (1981).

Chambers v. Maroney, 49 the Court held thatan automobile could be searched withprobable cause and without a warrant eventhough it was in police custody and was nolonger mobile. Justice Harlan pointed out indissent that the Court was authorizing aseizure first and a search second withoutjustifying the warrantless search. Themajority maintained that the mobility of thevehicle remained even at the station house,which is a remarkable assertion in light ofthe complete control of the police over thevehicle.

The Court has zealously safeguarded theautomobile exception, reaching out for casesthat cast doubt on the proposition thatautomobiles are always mobile even whenthey clearly are not.52 If a car is in policecustody and cannot be moved (police canremove parts of the engine to assure this),why should the car be different from anyother property? Well, the Supreme Courtsays it is. There is no principle underlyingthe automobile exception other thanmobility, and when mobility disappears, sodoes the principle.

What happens then when there is probablecause to believe that a motor home hasevidence? Is a motor home a car or a house?In any sensible world, it would not matter,because the rule would be it could be seizedwhile a warrant is sought absent exigent

49399 U.S. 42 (1970).

52 See, e.g., Texas v. White, 423 U.S. 67 (1975) (percuriam) (citing Chambers to uphold a search of anautomobile at a station house); Florida v. Meyers,466 U.S. 380, 382 (1984) (per curiam) (upholding a"warrantless search of an automobile even though theautomobile was in police custody" notwithstanding aprior inventory search because "the justification toconduct such warrantless search does not vanish oncethe car has been immobilized" (internal citationsomitted)).

circumstances. People who live in motorhomes believe their home is their castle aswell as their car, but the Supreme Courtconcludes that if people *148 live onwheels, they have a car and not a home.Such is the holding of California v.Carney.

By the time it decided Carney, the Courthad articulated a reason other than mobilityfor treating automobiles as deserving lesserprotection than other property--namely, thatthere is a diminished expectation of privacyregarding their automobiles. This may be thesingle best example of a rationale that failsto recognize the way in which mostAmericans think of their cars, as symbols offreedom of movement. It is almostincredible to think that the Supreme Courtbelieves that people have a greaterexpectation of privacy in the lugage theyput on a bus or in a footlocker than in acar. Teenagers in the United States regardthe right to drive as one of the passagestoward adulthood. The car is not a symbol offreedom only to the young. It is a pathway toincredible mobility for all. The car enablesAmericans to travel where they want, whenthey want, as they want.

Although the Justices may not realize it,many very intimate encounters occur invehicles. People have private conversationsin automobiles. People who are not drivingread private messages in automobiles.People make love in automobiles. Theyrarely do these things in luggage orfootlockers. Indeed, most people who move

$ 471 U.S. 386, 394 (1985) ("Our application of the[Fourth Amendment's] vehicle exception has neverturned on the other uses to which a vehicle might beput. The exception has historically turned on theready mobility of the vehicle ....").

54 See United States v. Chadwick, 433 U.S. 1 (1977).

260

their luggage and their footlockers do it withan automobile, and to pretend that theautomobile is not a private place so that abright line rule can be employed means thata rule without a principle or rationale iscreated to enable law enforcement to act in aworld that is unreal.

The emptiness of a bright-line rule withoutan underlying principle is demonstrated byCalifornia v. Acevedo.5 5 The Court founditself facing a difficulty it alone had created.Law enforcement and lower courts wereconfused as to whether probable causejustified a search of an automobile if theprobable cause focused on a container like afootlocker or a bag that was located in anautomobile. In short, the question waswhether a footlocker in an automobile isentitled to the same protection as afootlocker outside an automobile. One thingis clear: a footlocker is a footlocker whetherit is in or out of a car. But the SupremeCourt held that a footlocker or a bag in a carcould be searched with probable causewithout a warrant simply because it fellwithin the automobile exception. Why?Because the Court said so. It needed anotherbright line rule.

Well, there was readily available a handybright line rule based upon principle. Aprincipled rule would permit the seizure ofproperty, including a car, based uponprobable cause while a warrant is sought.This is the rule the Court has adopted forproperty other than cars in cases like UnitedStates v. Van Leeuwen,5 7 Segura v. UnitedStates,5 8 and Illinois v. McArthur.5 9 A rule

" 500 U.S. 565 (1991).

1 397 U.S. 249, 251 (1970) (holding First Class mailmay be seized if there is probable cause while awarrant is sought).

" 468 U.S. 796, 798 (1984) (holding evidence seized

based on principle is easy to apply andavoids arbitrariness. Such a rule wouldrequire rejection of the automobileexception and recognition of what the Courtsaid in Delaware v. Prouse: 60

An individual operating or traveling in anautomobile does not lose all reasonableexpectation of privacy simply because theautomobile and its use are subject togovernment regulation. Automobile travel isa basic, pervasive, and often necessary modeof transportation to and from one's home,workplace, and leisure activities. Manypeople spend more hours each day travelingin cars than walking on the streets.Undoubtedly, many find a greater sense ofsecurity and privacy in traveling in anautomobile than they do in exposingthemselves by pedestrian or other modes oftravel."

Prouse described the world as it really wasand still is. The automobile exception is abright line rule without any justification. It isa rule invented by the Court and one thatignores the real world so well described bythe Court in Prouse.

from an apartment that police had secured prior towarrant was admissible despite the "administrativedelay" in getting the warrants).

s9 531 U.S. 326, 331-34 (2001) (holding that whenpolice had probable cause to get a warrant, refusingto allow defendant to enter his own apartment untilwarrant arrived was not impermissible seizure ofapartment).

' 440 U.S. 648 (1979).

61 Id. at 662 (footnote omitted).

261

Discretionary Warrantless Searches and Seizures and the Fourth Amendment: A Need forClearer Guidelines

South Carolina Law Review

Spring 2002

Jennifer Ison Cooke


A. Fourth Amendment

The Fourth Amendment grants individualsa general constitutional right to privacy andprotects against inappropriate governmentintrusion. The Fourth Amendment states asfollows:

The right of the people to be secure in theirpersons, houses, papers, and effects, againstunreasonable searches and seizures, shall notbe violated, and no Warrants shall issue, butupon probable cause, supported by Oath oraffirmation, and particularly describing theplace to be searched, and the persons orthings to be seized.

The test most frequently cited to determinewhether an individual's Fourth Amendmentrights have been violated originated inJustice Harlan's concurring opinion in Katzv. United States.9 The test requires "first

' 389 U.S. 347, 361 (1967) (Harlan, J., concurring).The majority reasoned that the Fourth Amendmentdid not protect information that a person knowinglyexposed to the public, but what a person kept private,even in a public place, might be protected. Id. at 351-52.

that a person have exhibited an actual(subjective) expectation of privacy and,second, that the expectation be one thatsociety is prepared to recognize as'reasonable."' Cases following Katz haveused this test to determine if the FourthAmendment was violated."

B. Exceptions to the Rule

1. Automobile Exception

Cases interpreting the Fourth Amendmentstate that a government search or seizure ofa person, a person's home, or a person'seffects without a warrant is unreasonableunless it falls within one of the exceptions tothe Fourth Amendment. The United StatesSupreme Court has recognized a distinctionbetween a person's reasonable expectation of

" See, e.g., Oliver v. United States, 466 U.S. 170,184 (1984) (holding that a person does not have areasonable expectation of privacy in an open field);Smith v. Maryland, 442 U.S. 735, 745 (1979)(holding that an individual does not have areasonable expectation of privacy regardinginformation given to a third person); United States v.White, 401 U.S. 745, 752-54 (1971) (holding that anindividual does not have a reasonable expectation ofprivacy when revealing information to someone withwhom he is speaking).

262

privacy in his home and in his automobile.According to the Court in Carroll v. UnitedStates, [there is] a necessary differencebetween a search of a store, dwelling houseor other structure in respect of which aproper official warrant readily may beobtained, and a search of a ship, motor boat,wagon, or automobile, for contraband goods,where it is not practicable to secure awarrant because the vehicle can be quicklymoved out of the locality or jurisdiction inwhich the warrant must be sought. 14

In Chambers v. Maroney, the Courtinterpreted Carroll to hold that "a searchwarrant [is] unnecessary where there isprobable cause to search an automobilestopped on the highway; the car is movable,the occupants are alerted, and the car'scontents may never be found again if awarrant must be obtained.""

The Chambers Court followed Carroll andheld that a warrantless police search of avehicle at the police station following thearrest of four men suspected of armedrobbery was reasonable under the FourthAmendment. Based on the constitutionaldifference between houses and cars, theCourt held that a warrantless search of anautomobile was reasonable whenever thepolice had probable cause to search thevehicle. Carroll and Chambers establishedthis now well-settled automobile exceptionto the Fourth Amendment's warrantrequirement based on automobiles' mobility,the lessened expectation of privacy to whichthey are entitled, and the pervasivegovernment regulation to which they aresubject.

3. Search Incident to a Lawful WarrantlessArrest

A search and seizure conducted incident toa lawful warrantless arrest is anotherexception to the Fourth Amendment'sgeneral warrant requirement. 52 Following alawful warrantless arrest, an officer maysearch the person arrested and the areawithin the arrestee's reach based on the needto seize weapons and to prevent thedestruction of evidence. In Chimel v.California, the Supreme Court held that awarrantless search incident to an arrest wasunreasonable because after the suspect hadbeen arrested, the officers searched hisentire home, including the attic and garage,and eventually seized numerous items. TheCourt concluded that the search "went farbeyond the [arrestee's] person and the areafrom within which he might have obtainedeither a weapon or something that couldhave been used as evidence against him.There was no constitutional justification, inthe absence of a search warrant, forextending the search beyond that area."

A movement toward a bright-line approachto warrantless searches incident to arrestshas emerged in cases where the arrest ismade in conjunction with a traffic violation.In United States v. Robinson, the SupremeCourt upheld the reasonableness of a policeofficer's search of a driver following thedriver's arrest for operating a motor vehiclewithout a license. The police officersearched the driver's pocket, found acigarette package, and unwrapped an objectfound inside the cigarette package whichturned out to be heroin.5 8 In his dissenting

14 Carroll v. United States, 267 U.S. 132, 153 (1925).

1s Chambers v. Maroney, 399 U.S. 42, 51 (1970)

52 See Chimel v. California, 395 U.S. 752, 760(1969).

58 Robinson, 414 U.S. at 222-23.

263

opinion, Justice Marshall questionedwhether the officer had reason to believethat the cigarette package could havecontained any weapons and argued that thesearch constituted an abuse of policediscretion. However, the majority reasonedthat police officers needed a bright-line ruleto follow and concluded that "[a] policeofficer's determination as to how and whereto search the person of a suspect whom heha[d] arrested [was] necessarily a quick adhoc judgment which the Fourth Amendment[did] not require to be broken down in eachinstance into an analysis of each step in thesearch."

In New York v. Belton, the Supreme Courtheld that the police may search not onlyone's person following a warrantless arrestrelated to a traffic violation, but also thepassenger compartment of the automobile. 61

Based on the reasoning in Chimel, the Courtexplained that the passenger compartment ofan automobile would be "within 'the areainto which an arrestee might reach in orderto grab a weapon or evidentiary ite[m]."'Therefore, the Belton Court held that apolice officer's search of the automobile'spassenger compartment did not violate theFourth Amendment. According to the Court,the searches were lawful because the driver'straffic violation justified the stop.Additionally, once the officer smelledmarijuana, he had probable cause to arrestthe men for narcotics possession.

A police officer's discretion to search aperson and the passenger compartment of anautomobile incident to a warrantless arrestdoes not change based on the officer'smotivations for the arrest. 66 Justice Scalia,

6 New York v. Belton, 453 U.S. 454, 460 (1981).

66 See Whren v. United States, 517 U.S. 806, 813(1996).

writing the opinion for a unanimous Court inWhren v. United States, reasoned that theCourt "described Robinson as havingestablished that 'the fact that the officer doesnot have the state of mind which ishypothecated by the reasons which providethe legal justification for the officer's actiondoes not invalidate the action taken as longas the circumstances, viewed objectively,justify that action."'

The events described in Whren occurred ina "high drug area" of the District ofColumbia. The police officer passed a truckwith a temporary license plate which wasbeing driven by a young man who waslooking down into the lap of the passengerin the front seat. When the officer made a U-turn to drive toward the truck, the driverquickly turned to the right and "sped off."After catching up with the young men, theofficer approached the vehicle and spottedtwo bags of crack cocaine in the passenger'slap. The officer arrested the two men andseized various illegal drugs from the vehicle.

At a pretrial suppression hearing, thepetitioners argued that the drugs should beinadmissible because the police officer hadmade a "pretextual" stop unsupported byprobable cause. The petitioners furtherclaimed that the test of reasonablenessshould be "whether the officer's conductdeviated materially from usual policepractices, so that a reasonable officer in thesame circumstances would not have madethe stop for the reasons given." The Courtrefused to apply this test due to its subjectivenature (notwithstanding its objectivelanguage) and instead stated that "the FourthAmendment's concern with 'reasonableness'allows certain actions to be taken in certaincircumstances, whatever the subjectiveintent." Therefore, the Court held that since

264

the officer had probable cause to search thepetitioners for a traffic violation, the stopwas reasonable under the FourthAmendment. Furthermore, when the officerviewed the illegal drugs in the passenger'slap, the Court held that he actedappropriately in arresting the young men andin seizing the evidence.

The Court applied the Whren holding to aminor, fine-only offense in Atwater v. City

78of Lago Vista. In Atwater, decided onApril 24, 2001, Gail Atwater and herhusband filed suit against the City of LagoVista under 42 U.S.C. § 1983. The Atwatersclaimed that Gail's warrantless arrest for themisdemeanor charges of driving without herseatbelt, failing to secure her children inseatbelts, and driving without a license andproof of insurance was unreasonable underthe Fourth Amendment. A majority of theCourt affirmed the decision of the FifthCircuit Court of Appeals and held thatAtwater's arrest was "not so extraordinary asto violate the Fourth Amendment."

In Atwater, Officer Turek pulled Atwaterover for seatbelt violations. Officer Turekasked to see Atwater's license andregistration, as required by state law, andAtwater replied that she did not have thepaperwork because her purse had beenstolen the day before. The officer placedAtwater under arrest, prevented her fromtaking her children anywhere, and took herinto police custody, where she remained in ajail cell for about one hour.

Atwater argued that her warrantless arrestfor a fine-only misdemeanor was anunreasonable seizure because the policeofficer did not encounter a threat of violenceand she had not committed a felony. Afterexamining a lengthy history of the common

law concerning an officer's arrest authoritypursuant to a misdemeanor not amounting toa "breach of the peace," Justice Souter,writing for the majority, stated:

Atwater has cited no particular evidencethat those who framed and ratified theFourth Amendment sought to limit peaceofficers' warrantless misdemeanor arrestauthority to instances of actual breach of thepeace, and our own review of the recent andrespected compilations of framing-eradocumentary history has likewise failed toreveal any such design.

In addition, the Court rejected Atwater'sproposal for a modem test that would forbida warrantless arrest "when conviction couldnot ultimately carry any jail time and whenthe government show[ed] no compellingneed for immediate detention." JusticeSouter explained that the FourthAmendment was not well-served by a case-by-case approach to determiningreasonableness. Souter further stated that

the Fourth Amendment has to be applied onthe spur (and in the heat) of the moment, andthe object in implementing its command ofreasonableness is to draw standardssufficiently clear and simple to be appliedwith a fair prospect of surviving judicialsecond-guessing months and years after anarrest or search is made.

In short, the Court held that the arrest ofGail Atwater was not unreasonable and didnot violate her Fourth Amendment rightsbecause Officer Turek had probable cause tobelieve Atwater had committed a trafficviolation, he was authorized to make acustodial arrest, and he made the arrest in anordinary manner.

265

" 532 U.S. 318, 353-54 (2001).

02 -809 Maryland v. Pringle

Ruling Below: (Md., 370 Md. 525, 805 A.2d 1016)

Discovery, during concededly valid search of vehicle driven by its owner, of money in closed

glove compartment and drugs in backseat armrest does not provide probable cause to believe that

defendant, who was passenger in front seat, knew about those items or had possession or controlof them, and, therefore, arrest of defendant violated Fourth Amendment; invalid arrest tainteddefendant's confession.

Question Presented: In case in which drugs and roll of cash are found in passengercompartment of car with multiple occupants, and all deny ownership, does Fourth Amendmentprohibit police officer from arresting occupants of car?

Joseph Jermaine PRINGLEV.

STATE of Maryland.

Court of Appeals of Maryland

Decided August 27, 2002.


CATHELL, J.

On April 11, 2000, Joseph Jermaine Pringle,petitioner, was convicted by a jury in theCircuit Court for Baltimore County ofpossession with intent to distribute cocaineand possession of cocaine. On May 9, 2000,petitioner was sentenced to a term of tenyears incarceration without the possibility ofparole.

Petitioner appealed this conviction to theCourt of Special Appeals. On appeal,petitioner asserted, inter alia, that there wasno probable cause to support his arrestwhich led to his conviction. On November28, 2001, the intermediate appellate courtheld that there was probable cause to arrestpetitioner and affirmed his conviction.Pringle v. State, 141 Md.App. 292, 785

A.2d 790 (2001).

On March 6, 2002, we granted petitioner'sPetition for Writ of Certiorari. Pringle v.State, 368 Md. 239, 792 A.2d 1177 (2002).Petitioner presents one question for ourreview:

"Did the police have probable cause toarrest the petitioner where he was a frontseat passenger in a vehicle also occupiedby the driver/owner and a rear seatpassenger, and in which a sum of moneywas found inside the closed glovecompartment and a quantity of drugs wasfound hidden behind a rear armrest, andwhere there was neither the odor of drugswithin the vehicle nor any other indicia ofdrug activity?"

We reverse. We hold that there was notprobable cause to support the arrest ofpetitioner in the car when he had not

266

admitted ownership of the drugs.Specifically, we hold that there was notprobable cause to arrest petitioner, who wasnot the owner of the vehicle, when petitionerwas merely the front seat passenger and theonly evidence supporting the arrest was asum of money in the closed front glovecompartment and drugs that were hiddenfrom view in the armrest in the backseat ofthe vehicle.

I. Facts

Officer Jeffrey Snyder of the BaltimoreCounty Police Department testified that at3:16 a.m. on the morning of August 7, 1999*** he conducted a traffic stop. OfficerSnyder asked the driver for his license andregistration. The driver/registered owner ofthe car was Donte Carlos Partlow (Partlow).Also in the vehicle were petitioner, the frontseat passenger, and Otis Calvin Smith(Smith), the back seat passenger.

When Partlow opened the glovecompartment for the vehicle registration,Officer Snyder saw a large amount of rolledup money in the glove compartment. At thistime, Officer Snyder did not ask about themoney, but went back to his patrol car withPartlow's license and registration to checkthe Maryland Motor Vehicle Administrationcomputer system for outstanding violations.The computer check did not reveal anyviolations and Officer Snyder returned to thecar, had Partlow exit the vehicle, and issuedhim an oral warning.

At this time, a second patrol car arrived andOfficer Snyder then "asked him [Partlow] ifhe had anything in the vehicle, any drugs,weapons, narcotics in the vehicle?" Partlowresponded that he did not. Officer Snyderthen asked for and received permission fromPartlow to search the vehicle. Prior to doingso, Officer Snyder asked the other two men

in the vehicle, petitioner and Smith, to exitthe vehicle and he patted them down. Allthree men were asked to sit on the curbwhile he searched the vehicle.

During the search, Officer Snyder seized$763.00 from the glove compartment andfive plastic glassine baggies containingsuspected cocaine from inside an armrest inthe backseat. Officer Snyder questioned allthree men about the ownership of the drugsand money, and told the three men that if noone admitted to ownership of the drugs hewas going to arrest them all. None of themen offered any information regarding theownership of the drugs and/or money, andall three were placed under arrest andtransported to the police station.

Sometime between 4:00 and 5:00 a.m.,Officer Snyder met with petitioner and,following a waiver of his Miranda rights,'obtained an oral and written confession inwhich petitioner acknowledged that thecocaine belonged to him, that he and hisfriends were going to a party inWestminster, and that he intended to sell itor "Use it for sex." Petitioner maintainedthat neither Partlow nor Smith knew of thedrugs. Partlow and Smith were released.

At trial, during a suppression hearing,petitioner's counsel argued that petitioner'sarrest was unlawful because it was notsupported by probable cause and that hisconfession should be suppressed as theunlawful fruit of an illegal arrest. The trialcourt judge agreed with the State thatOfficer Snyder "had probable cause to makethe arrest." After a jury trial, petitioner wasfound guilty and sentenced to ten yearsincarceration without the possibility ofparole. The Court of Special Appealsaffirmed the conviction.

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,16 L.Ed.2d 694 (1966).

267

II. Discussiona. Probable Cause

In the case sub judice, petitioner is notcontending that the vehicle was stopped, orthat the vehicle was searched, in violation ofthe Fourth Amendment's guarantee againstunreasonable searches and seizures.Petitioner's only contention is that the policeofficer did not have probable cause to arresthim; therefore, his confession was the fruitof an illegal arrest.

In order for a warrantless arrest to be legal itmust be based upon probable cause. Wehave held that a police officer can arrest anaccused without a warrant if the officer hasprobable cause to believe that a felony hasbeen or is being committed by an allegedoffender in the officer's presence. Woods v.State, 315 Md. 591, 611-12, 556 A.2d 236,246 (1989); Nilson v. State, 272 Md. 179,184, 321 A.2d 301, 304 (1974). MarylandCode (1957, 1996 Repl.Vol.), Article 27,section 594B, then stated, in relevant part:

" § 594B. Arrests without warrantsgenerally.(a) Arrest for crime committed in presenceof officer. - A police officer may arrestwithout a warrant any person whocommits, or attempts to commit, anyfelony or misdemeanor in the presence of,or within the view of, such officer.(b) Arrest for crime apparently committedin presence of officer. - A police officerwho has probable cause to believe that afelony or misdemeanor is being committedin the officer's presence or within theofficer's view, may arrest without awarrant any person whom the officer mayreasonably believe to have committed suchoffense.(c) Arrest for crime committed generally. -A police officer may arrest a personwithout a warrant if the officer has

probable cause to believe that a felony hasbeen committed or attempted and that suchperson has committed or attempted tocommit a felony whether or not in theofficer's presence or view."

We examined the application of probablecause to a warrantless arrest in Collins v.State, 322 Md. 675, 589 A.2d 479 (1991),when we stated:

"Probable cause, we have frequentlystated, is a nontechnical conception of areasonable ground for belief of guilt. Afinding of probable cause requires lessevidence than is necessary to sustain aconviction, but more evidence than wouldmerely arouse suspicion. Ourdetermination of whether probable causeexists requires a nontechnical, commonsense evaluation of the totality of thecircumstances in a given situation in lightof the facts found to be credible by thetrial judge. Probable cause exists wherethe facts and circumstances taken as awhole would lead a reasonably cautiousperson to believe that a felony had been oris being committed by the person arrested.Therefore, to justify a warrantless arrestthe police must point to specific andarticulable facts which, taken togetherwith rational inferences from those facts,reasonably warranted the intrusion."

Id. at 680, 589 A.2d at 481. To determinewhether an officer had probable cause in aspecific case, "the reviewing courtnecessarily must relate the informationknown to the officer to the elements of theoffense that the officer believed was beingor had been committed." DiPino v. Davis,354 Md. 18, 32, 729 A.2d 354, 361 (1999).

Petitioner was charged and eventuallyconvicted of violating sections 286 -possession of cocaine with intent to

268

distribute and 287 - possession of cocaine.In order for petitioner's arrest to be valid, theofficer must have had probable cause at thetime of the arrest to believe that petitionerwas in possession of cocaine. Possession isdefined in Maryland Code (1957, 1996Repl.Vol., 2001 Supp.), Article 27, section277(s) as "the exercise of actual orconstructive dominion or control over athing by one or more persons." This statuterecognizes, as we have held, that possessionmay be constructive or actual, exclusive orjoint. State v. Leach, 296 Md. 591, 596, 463A.2d 872, 874 (1983).

While the quantum of evidence is different,we have discussed possession issues inseveral sufficiency of the evidence cases,which are instructive in respect to thedefinition of possession. [In Garrison v.State, 272 Md. 123, 321 A.2d 767 (1974),the court held "that the State had not met thestandard of legal sufficiency because therewas no evidence which directly orinferentially demonstrated that the defendanthad exercised actual or constructivedominion or control, solely or jointly, overthe narcotics."]

In State v. Leach, 296 Md. 591, 463 A.2d872 (1983), Stephen Leach and his brother,Michael Leach, were convicted ofpossession of a controlled dangeroussubstance. On appeal, Stephen Leachchallenged the sufficiency of the evidence inhis conviction for possession. [On appeal,the court found the evidence to be legallyinsufficient because it could not be"reasonably inferred that he exercisedrestraining or directing influence over"drugs and drug paraphernalia in the bedroomof his brother's apartment. Id. at 596, 463A.2d at 874.]

[In Dawkins v. State, 313 Md. 638, 547 A.2d1041 (1988), the court held that knowledge

was an element of possession. JudgeEldridge, writing for the Court, stated:"Knowledge of the presence of an object isnormally a prerequisite to exercisingdominion and control." Id. at 649, 547 A.2dat 1046.]

Therefore, in order to prove "possession,"the State must prove the elements of"dominion or control" and "knowledge."These elements were applied in two other,more recent, sufficiency of the evidencecases, White v. State, 363 Md. 150, 767 A.2d855 (2001) and Taylor v. State, 346 Md.452, 697 A.2d 462 (1997). [In White, thecourt held that the evidence was insufficientto support the conviction of a passenger forpossession of cocaine that was in a sealedbox in the trunk. The court said that thepassenger "did not have a possessory rightin, or control over, the vehicle," and even ifhe had the requisite knowledge, "weconclude nonetheless that there was notsufficient evidence establishing that [White]exercised dominion and control over thecocaine." White, 363 Md. at 164-65, 767A.2d at 863.]

[In Taylor, police discovered drugs andparaphernalia in the bags and wallet ofoccupants of a motel room, but arrested onlythe occupant who was present during thesearch. The court held that the evidence wasinsufficient to establish possession. JudgeRaker, writing for the court, stated:

In sum, the evidence presented in thiscase was insufficient to establish thatTaylor was in possession of the marijuanaseized from Myers's carrying bags.Taylor's presence in a room in whichmarijuana had been smoked, and hisawareness that marijuana had beensmoked, cannot permit a rational trier offact to infer that Taylor exercised arestraining or directing influence over

269

marijuana that was concealed in personalcarrying bags of another occupant of theroom. Because Petitioner was in jointrather than exclusive possession of thehotel room, his mere proximity to thecontraband found concealed in a travel bagand his presence in a room containingmarijuana smoke were insufficient toconvict him."

Taylor, 346 Md. at 459-63, 697 A.2d at 465-68 (footnote omitted) (alteration inoriginal).]

While the cases we have discussed aboveinvolve the sufficiency of the evidence, they,nonetheless, establish the law fordetermining some possession issues, even atthe probable cause to arrest stage. Moreover,we have also had occasion to apply theelements of possession to cases, like the caseat bar, where the probable cause to make anarrest for possession is being challenged. InLivingston v. State, 317 Md. 408, 564 A.2d414 (1989), Wesley Livingston was one ofthree people in a vehicle that was stoppedfor speeding. Livingston, who was not theowner of the vehicle, was sitting in thebackseat. During the stop for speeding, thestate trooper saw two marijuana seeds on thefloor of the front passenger's side. The statetrooper arrested all three occupants of thecar and upon searching Livingston pursuantto the arrest, the state trooper discoveredcocaine and marijuana in Livingston'spocket. Livingston was charged withpossession of cocaine with intent todistribute, possession of cocaine, andpossession of marijuana. He moved tosuppress the evidence as the product of anillegal arrest but the motion was denied bythe trial court. Livingston was convicted onall three counts and he appealed.

While we found that the two marijuanaseeds on the floor provided the state trooper

with probable cause that a misdemeanor wasbeing committed in his presence, thequestion became who could the state trooperarrest for the offense. We held that the twomarijuana seeds on the floor in the front ofthe vehicle did not provide the state trooperwith probable cause to arrest Livingston andthen conduct a search incident to that arrest.We stated:

"Merely sitting in the backseat of thevehicle, Livingston did not demonstrate tothe officer that he possessed anyknowledge of, and hence, any restrainingor directing influence over two marijuanaseeds located on the floor in the front ofthe car."Without more than the mere existence oftwo marijuana seeds located in the front ofthe car, we hold that the police officerlacked probable cause to arrest Livingston,a rear seat passenger, for possession ofmarijuana. Thus, Livingston's arrest wasillegal, and the contraband seized in thesearch arising out of that arrest must besuppressed."

Id. at 415-16, 564 A.2d at 418 (footnoteomitted).

We further examined when a police officerhas probable cause to make a warrantlessarrest in Collins v. State, 322 Md. 675, 589A.2d 479 (1991). On September 20, 1988, at3:00 a.m., Officer Holmes of the SalisburyPolice Department noticed five menstanding about five feet from a Mustang thatwas parked in the entrance to a cardealership. The Mustang was not owned byCollins. Officer Holmes approached the menand asked what they were doing. The driverof the Mustang, Steven Lewis, stated thatthey were looking at the BMWs. OfficerEwing arrived on the scene to assist OfficerHolmes. Officer Ewing saw a 35 mm filmcanister on the rear seat of the Mustang and

270

he asked one of the men to retrieve thecanister for him. Inside the canister, OfficerEwing found over twenty cellophanewrapped packets containing cocaine.Officers Ewing and Holmes then arrested allfive men for possession of cocaine. Collinsalleged at a suppression hearing that therewas not probable cause for his arrest. Thetrial court denied his suppression motion andCollins was convicted of possession ofcocaine.

Before this Court, Collins once againasserted that there was not probable causefor his arrest. Specifically, relying onLivingston, supra, he asserted that his mereproximity to incriminating evidence, or to anoffender, is not enough for a finding ofprobable cause for arrest. Furthermore,Collins asserted that there was no furtherfactual basis to connect him to the drugs orto having committed any crime. We firstdiscussed the United States Supreme Courtcase of United States v. Di Re, 332 U.S. 581,68 S.Ct. 222, 92 L.Ed. 210 (1948), in whichthe Supreme Court had examined the arrestof Di Re, who was seated in the passengerseat of a vehicle from which an informanthad purchased counterfeit gasoline rationcoupons from the driver and the backseatpassenger was seen holding gasoline rationcoupons. The police arrested and searchedall three men. The Supreme Court held thatDi Re's mere presence in a vehicle involvedin criminal activity, without more, did notcause him to lose his right to be free from asearch of his person. We then discussed ourholding in Livingston, supra, and we heldthat there was not probable cause to arrestCollins for possession. We stated:

"Considering the totality of thecircumstances, we conclude that the merepresence of a closed film canister in a carfound to contain cocaine was legallyinsufficient to support the requisite

probable cause to arrest Collins as hestood outside of the vehicle. No testimonysuggested that he arrived at the lot in thecar, that he had even been in the vehicle,or that he knew the suspected cocaine wasin the back seat of the car. Even if thepolice had probable cause to arrest Lewisor Parker for unlawful possession, therewas no probable cause to arrest Collins.As there was no evidence whichcriminally linked Collins to either the car,or to the film canister, there was noprobable cause to believe that hecommitted or attempted to commit afelony as required by Art. 27, § 594B."

Collins, 322 Md. at 682-83, 589 A.2d at482.

As stated, supra, to determine whether apolice officer had probable cause to make awarrantless arrest, we evaluate the totality ofthe circumstances as to whether the factsand circumstances, with rational inferencesderived therefrom, would lead a reasonableperson to believe that a felony has been or isbeing committed. In a specific case, weapply the elements of the alleged offense tothe facts and circumstances of that case todetermine whether the police officer hadprobable cause to make a warrantless arrestof a particular individual for that specificoffense.

In the case sub judice, applying the facts andcircumstances of this case to the elements ofpossession requiring "knowledge" of thecontrolled dangerous substance and"dominion or control" over the substance,and relying on the holdings of our previouscases, specifically our holding in Livingston,we find that the police did not have probablecause to arrest petitioner. Similar to thesituation in Livingston, where the defendantwas sitting in the backseat and twomarijuana seeds were in open view on the

271

floor in the front seat, petitioner in this casewas sitting in the front seat and the cocainewas found hidden from view in the armrestin the back seat of the car. Withoutadditional facts available to the officer atthat time that would tend to establishpetitioner's knowledge and dominion orcontrol over the drugs, the mere finding ofcocaine in the back armrest when petitionerwas a front seat passenger in a car beingdriven by its owner is insufficient toestablish probable cause for an arrest for

2possession. As we stated in Livingston:

"Merely sitting in the backseat of thevehicle, Livingston did not demonstrate tothe officer that he possessed anyknowledge of, and hence, any restrainingor directing influence over two marijuanaseeds located on the floor in the front ofthe car."Without more than the mere existence oftwo marijuana seeds located in the front ofthe car, we hold that the police officerlacked probable cause to arrest Livingston,a rear seat passenger, for possession ofmarijuana."

Livingston, 317 Md. at 415-16, 564 A.2d at418 (footnote omitted).

The State points to the additional fact thatthe police officer saw a large amount ofrolled up money in the glove compartmentlocated in front of petitioner. Money,without more, is innocuous. In Leach, weheld that there was insufficient evidence toconvict Stephen Leach, the brother of

2 Under respondent's reasoning, if contraband wasfound in a twelve-passenger van, or perhaps a bus orother kind of vehicle, or even a place, i.e., a movietheater, the police would be permitted to placeeveryone in such a vehicle or place under arrest untilsome person confessed to being in possession of thecontraband- Simply stated, a policy of arrestingeveryone until somebody confesses is constitutionallyunacceptable.

Michael Leach, when the drugs were foundin Michael Leach's bedroom. In that case,the police had also discovered a large tablescale and a magnifier in plain view on thekitchen table. We held that the table scale

and magnifier were intrinsically innocuousand that they only became significant whenassociated with drugs. The money in thecase at bar was not in the plain view of thepolice officer or petitioner; rather it waslocated in a closed glove compartment andonly came into view when the glovecompartment was opened by the car'sowner/driver in response to the officer'srequest for the car's registration. There areinsufficient facts that would lead areasonable person to believe that petitioner,at the time of his arrest, had prior knowledgeof the money or had exercised any dominionor control over it. We hold that a policeofficer's discovery of money in a closedglove compartment and cocaine concealedbehind the rear armrest of a car isinsufficient to establish probable cause foran arrest of a front seat passenger, who isnot the owner or person in control of thevehicle, for possession of the cocaine.

As noted, supra, we hold that there was notprobable cause to arrest petitioner at thetime of the routine traffic stop. Under the"fruit of the poisonous tree doctrine,"evidence tainted by Fourth Amendmentviolations may not be used directly orindirectly against the accused. See Miles v.State, 365 Md. 488, 781 A.2d 787 (2001).The exclusionary rule "applies to any 'fruits'of a constitutional violation - whether suchevidence be tangible ... or confessions orstatements of the accused obtained during anillegal arrest and detention." United States v.Crews, 445 U.S. 463, 470, 100 S.Ct. 1244,1249, 63 L.Ed.2d 537, 545 (1980) (footnoteomitted).

272

b. Attenuation

The State has not argued that the confessionwas admissible as a result of attenuation. Wedo not believe that the parties have properlypresented that issue to this Court. Even ifproperly presented, the concept would notbe applicable under the circumstances herepresent.

[The court then turns "to whether, ifattenuation had been properly presented, thetaint of the illegal arrest was sufficientlyattenuated to permit the admission intoevidence of petitioner's confession, whichwould otherwise be barred as the fruit of apoisonous tree because the arrest waseffectuated without probable cause. SeeWong Sun v. United States, 371 U.S. 471, 83S.Ct. 407, 9 L.Ed.2d 441 (1963)."]

III. Conclusion

In order for the warrantless arrest ofpetitioner for possession to be legal, theremust be probable cause as applicable to theelements of the offense of possession.Looking at the totality of the circumstances,and after examining our case law, weconclude that there was not probable causeto arrest petitioner for possession.

The totality of the circumstances of the factsof this case, as interpreted under the Brownfactors and the further consideration ofvoluntariness, clearly show that thenecessary severing of the relationshipbetween the primary illegality and theevidence derived therefrom to satisfyattenuation, even if the issue had beenproperly presented to this Court, does notexist. While petitioner was given hisMiranda warnings, an application of theremaining Brown factors and a considerationof voluntariness, in light of the continuinginducement and the confession's proximity

in time to the illegal arrest and the coercion,makes clear that the temporal proximitybetween the illegal arrest and the confession,the lack of intervening circumstances andthe purposefulness of the illegal policeconduct all indicate a direct causal nexusbetween the illegal arrest for lack ofprobable cause and petitioner's confessionused by the State at trial.

Therefore, we hold that the arrest ofpetitioner was illegal and that there wereinsufficient facts and circumstances to provepetitioner's confession was adequatelyattenuated from the point of his illegal arrestto the giving of the confession.

BATTAGLIA, J. in which WILNER andHARRELL, JJ., join.

I respectfully dissent.

The majority's holding that the policeofficers lacked probable cause to arrest thepetitioner for possession of cocaine is basedprimarily upon an erroneous blending of theprobable cause standard for an arrest and thesufficiency of evidence standard for aconviction. While the majority hastilyacknowledges the differences between thesestandards, it devotes most of its attention tociting and discussing legal authority forissues involving the standard of legalsufficiency and gives only briefconsideration to two (more applicable, albeitdistinguishable) opinions concerning therequisite probable cause for a validwarrantless arrest. For these reasons, and thereasons articulated herein, I respectfullydissent.

Arrests without warrants are constitutionallyand statutorily permitted pursuant to Article27, Section 594B of the Maryland Code as

273

long as the officer has probable cause tobelieve that a crime has been committed andthe officer reasonably believes the arresteecommitted that crime. Determining whetherprobable cause exists to support awarrantless arrest requires a nontechnical,common sense evaluation of the totality ofthe circumstances in a given situation "inlight of the facts and circumstances found tobe credible by the trial judge." See State v.Lemmon, 318 Md. 365, 379, 568 A.2d 48,55 (1990). ***

In the present case, the information knownto the officer at the time of the arrest wasthat three men were traveling in a vehicle (aNissan Maxima) around 3:00am with a largestash of cash in the glove compartment andseveral plastic baggies of cocaine in the reararmrest. None of the men claimedownership of the drugs or money, yet thelocation of the drugs and money in theNissan Maxima would lead a reasonableofficer in similar circumstances to believethat the three men had joint constructivepossession over the contraband. In my view,this establishes probable cause for the arrestof each of the three individuals, includingthe petitioner.

What more would the majority require tojustify an arrest? From the emphasis in itsopinion, the majority would seeminglyrequire police officers to consider whetherthe evidence gathered would be legallysufficient for a possession conviction priorto making the arrest. The majority assertsthat "[w]hile the cases we have discussedabove involve the sufficiency of theevidence, they, nonetheless, establish thelaw for determining some possession issues,even at the probable cause to arrest stage;"yet cites no authority for this proposition.Granted, the arresting officer mustcomprehend that which "possession of acontrolled dangerous substance" entails. The

officer should not, however, be required tobase a determination to arrest on the abilityof the State to meet the standard of legalsufficiency for a conviction; nor should thereviewing courts measure the propriety ofthe arrest by such a standard.

Let me be clear on this point: I agree that thelegal sufficiency of evidence in possessionof narcotics cases requires the State toproduce evidence of dominion or controlover the narcotic allegedly possessed, andknowledge therewith, beyond a reasonabledoubt. I disagree, however, that the degreeof evidence required for a conviction on thecharge of possession of narcotics can beequated to that which is required of policeofficers when making probable causedeterminations for warrantless arrests.Courts reviewing such determinations mustnot confuse or blend the two standards:probable cause for an arrest (a lowerstandard than legal sufficiency for aconviction) requires the reasonable beliefthat the person arrested had committed orwas committing the felony crime ofpossession of narcotics. As we have oftexplained, "probable cause is a nontechnicalconception of a reasonable ground for beliefof guilt, requiring less evidence for suchbelief than would justify a conviction, butmore evidence than that which would arousea mere suspicion." Woods v. State, 315 Md.591, 611, 556 A.2d 236, 246 (19 89 )(quotingNilson v. State, 272 Md. 179, 184, 321 A.2d301, 304 (1974)). A police officer whodiscovers (at 3 a.m.) three passengers in avehicle which contained several baggies ofcocaine in the rear armrest and a large wadof money (arguably, "drug money") in thefront glove compartment could reasonablybelieve that those persons were exercisingjoint and constructive possession of thecontraband in the vehicle, were engaging indrug trafficking, or conspiring to engage indrug trafficking, thus establishing probable

274

cause for the arrest of each individual.Whether the State's Attorney can producesufficient evidence to demonstrate, beyond areasonable doubt, actual or constructivedominion or control over the narcotics andknowledge therein to warrant a conviction isanother question - one that is properly left tothe prosecutor, initially, and the trier of fact,subsequently.

The majority's attempt, however discrete, toincorporate a higher standard - that of thesufficiency of evidence - into the properly-applied probable cause standard will onlyserve to burden the law enforcementcommunity. ***

For the aforementionedrespectfully dissent.

reasons, I

Instead of focusing on the factual scenariopresented to the Court, and more apposite, tothe police officer, the majority chooses tojump to hypothetical extremes in an attemptto justify its operative heightening of theprobable cause standard. In note [3], themajority erroneously asserts that if the Courtwere to adopt the position proffered by theappellant, then so long as some contrabandwas found, probable cause would exist, perse, and the police could arrest everyone,whether in a twelve-passenger van or movietheater. Such an assertion is specious in thatthe totality of the circumstances test, itself,precludes these sweeping generalizations;instead, it requires a review of the specificfacts and circumstances presented to theofficer at the scene of the purported crime,and if questioned, a ruling regarding theofficer's determination based upon thesespecific facts and circumstances. A courtshould not, and quite simply cannot,conjecture upon whether probable causeexists in factual situations not before it.Should I choose to entertain the majority'shypotheticals, however, I wouldunequivocally assert that baggies of cocainefound in one area of a packed movie theater,without more, would not constitute probablecause to arrest everyone in the theater; Ibelieve that the totality of circumstancestest, itself, would preclude a finding ofvalidity in such circumstances.

Judge WILNER and Judge HARRELL haveauthorized me to state that they join in theviews expressed herein.

275

High Court to Review Traffic Stop Arrests

AP Online

March 24, 2003

Anne Gearan

WASHINGTON (AP) The SupremeCourt said Monday it will consider thescope of police power to arrest alloccupants of a car during a traffic stop,agreeing to look at a case in whicheveryone in a car denied knowledge ofdrugs and a roll of cash found inside.

The case from Maryland continues a lineof Supreme Court cases clarifying whenofficers have probable cause and canapprehend someone without a warrant.In this case, the court will considerwhether it was an unconstitutionalstretch for the officer to link the front-seat passenger to drugs found in a backarmrest, and then to arrest all threepeople in the car.

Twenty states had urged the court tohear the case, involving a 1999 earlymorning traffic stop in Baltimore Countythat yielded $763 in the glovecompartment and five baggies of cocainein an armrest in the backseat.

"Countless times each day, officersmake traffic stops and uncovercontraband in multi-passenger situations.Police need the clarity of authority toknow who may be arrested in suchcases," Maryland Attorney GeneralJoseph Curran argued in a court filing.

Joseph Jermaine Pringle, the front seatpassenger, was convicted of drug

charges and sentenced to 10 years in

prison.

He later told police the drugs were his

An appeals court threw out Pringle'sconviction on grounds that his arrest wasunconstitutional and the confession wastainted.

The Constitution's Fourth Amendmentprohibits unreasonable searches orseizures. That means police almostalways need a warrant to searchsomeone's house without permission, butthe Supreme Court has interpreted theprotection more narrowly when it comesto automobiles and public transportation.

Lower courts have differed on thecorrect standard for determiningprobable cause to arrest a car'soccupants, and the Supreme Court hasnever squarely ruled on the question,Maryland and the other states argued.

"The uncertainty generated byconflicting court decisions does notmake the officers' already-difficult jobany easier," Ohio Attorney General JimPetro wrote on behalf of the 20 statessiding with Maryland.

The case is Maryland v. Pringle, 02-809.

Copyright 0 2003 The Associated Press

276

WITHOUT A WARRANT, PROBABLE CAUSE, OR REASONABLESUSPICION: IS THERE ANY MEANING TO THE FOURTH AMENDMENT

WHILE DRIVING A CAR?

Houston Law Review

Spring, 1999

Chris K. Visser

[Excerpt;omitted.]

some footnotes and citations

The Range of Permissible Police ActivityAfter a Stop

Although inconvenient for themotorist, a traffic stop is a reasonableresponse to an observed traffic violationbecause generally a stop is minimallyintrusive, of short duration, and takesplace in public. After the initial stop, thedriver expects, at a minimum, that he orshe will be questioned about theobserved infraction, have to submit hisor her license and registration to theofficer, and will possibly be cited for thetraffic offense. What the driver may notexpect, however, is the extent to whichthe police officer may expand the scopeof the search after the initial traffic stop.

In analyzing the validity of a trafficstop, the second prong of the Terry testrequires that any subsequent search orseizure be reasonably related in scope tothe original reason for the stop.Subsequent to Terry, however, the Courthas diluted this prong of the test and nowspecifically allows police to conductprotective searches of the driver andautomobile, seize items that arc in plainview, search the motorist incident to anarrest, run background checks, conduct a

consensual search of the automobile, anduse drug-sniffing dogs to search forillegal drugs. Using any of thesetechniques, the police can legallyconduct a comprehensive search of theautomobile and its occupants, providedthat the basis of the initial stop wasreasonable (i.e., based on an observedtraffic violation).

1. Protective Search of the Driverand the Car. As noted, the stop-and-frisk principles in Terry are applicable totraffic stops because traffic stops areanalogous to Terry stops. Terry allowsfor a frisk to protect the officer--anintrusion that is more limited (or, atleast, is more justifiable) than a full-fledged search because it is designed tosearch for weapons that could harm thestopping officer.

In Michigan v. Long,' the Courtextended the use of the protective searchto include a limited search of theautomobile's interior. The rationale forthis decision was that the officer couldbe threatened by weapons within themotorist's reach inside the car. Thissearch of the automobile interiorincludes areas inside the passengercompartment itself, as well as all closedcontainers in that area. If, during thissearch for weapons, the officer discovers

463 U.S. 1032 (1983).

277

drugs or other contraband, the FourthAmendment does not require that theofficer ignore the contraband. Withinconstitutional limits, therefore, theofficer may search for drugs whileperforming a protective search of theautomobile.

After a legitimate stop, the officermay also conduct a protective search ofthe driver. In Pennsylvania v. Mimms, 2

the Court found that a protective searchof the driver after a traffic stop wasreasonable. As with protective searchesof the automobile interior, thejustification for the driver search is toprotect the officer. In general, though,contraband evidence will be admissibleonly if the incriminating nature of thecontraband was "immediately apparent"to the officer.

2. Seizure of Items in Plain View. Inaddition to protective searches, theofficer may also seize, without awarrant, items that are in "plain view"after stopping the car.3 The "plain view"doctrine applies to the traffic stopcontext if the officer has probable causeto believe that a traffic violationoccurred, and if the officer canimmediately recognize that the item inplain view is contraband or evidence of acrime.

The rationale for the "plain view"doctrine is that police should not have toobtain a warrant for evidence that theyhave lawfully discovered. While thepolice may not rummage through the carto "discover" evidence, the "plain view"

2 434 U.S. 106 (1977).See Coolidge v. Ncw Hampshire, 403 U.S. 443,

468-69 (197 1) (holding that police may seizeevidence in plain view as long as the discoveryof that eidence is inadvertent).

doctrine gives police a powerful motiveto stop motorists for observed trafficviolations as a pretext, in hope of findingcontraband in plain view.

[3.] Conducting a Consensual

Search. Another powerful weapon in thepolice officer's arsenal to turn routinetraffic stops into full-scale searches isthe consensual search. Subsequent to alegitimate traffic stop, a police officermay ask for consent to search theautomobile. Officers often ask forconsent in order to get around thetraditional requirement of a warrant.More importantly, the officer usuallyasks for consent because there is noother legitimate basis for conducting thesearch.

The Supreme Court has held that theburden of a consensual search is that it isvoluntary.4 The inquiry into whetherconsent was voluntary is factual anddepends on the totality of thecircumstances. Some of the factors thatare relevant, but not dispositive, indetermining if consent was voluntaryinclude the following: knowledge of theright to refuse consent; presence ofcoercive surroundings, including thelocation of the request and the number ofpolice officers present; [and] whether theofficers displayed their weapons *** .

Copyright C 1999Review; Chris K. Visser

Houston Law

4 See Schneckloth v. Bustamonte, 412 U.S. 218,(1973) (noting that a search authorized byconsent is constitutionally permissible if theprosecutor can show that the consent was freelyand voluntarily given).

278

02-811 Groh v. Ramirez

Ruling Below: (Ramirez v. Butte-Silver Bow County, 9th Cir., 298 F.3d 1022)

Search warrant that did not list objects to be seized and did not incorporate, by reference orattachment, affidavit listing those objects violated Fourth Amendment; officers could not cureviolation by orally informing person at target premises of objects to be seized; officer who ledsearch without fulfilling his obligation to read warrant is not entitled to qualified immunity from42 U.S.C. § 1983 action.

Question Presented: (1) Did Ninth Circuit err in ruling that law enforcement officer violatedclearly established law, and thus was personally liable in damages and not entitled to qualifiedimmunity, when at time he acted there was no decision by U.S. Supreme Court or any other courtso holding, and only lower court decisions addressing issue had found same conduct did notviolate law? (2) Did law enforcement officers violate particularity requirement of FourthAmendment when they executed search warrant already approved by magistrate judge, based onattached application and affidavit properly describing with particularity items to be searched andseized, but warrant itself did not include same level of detail?

Joseph R. RAMIREZ; Julia L. Ramirez; Joshua Ramirez; Regina Ramirez,Plaintiffs-Appellants,

V.

BUTTE-SILVER BOW COUNTY; John McPherson, Sheriff of Butte-Silver Bow County;Joe Lee, Undersheriff of Butte-Silver Bow County; John Does 1-50, in their

individual and/or official capacities, Defendants,and

Jeff Groh, Special Agent with The Bureau of Alcohol, Tobacco, and Firearms,Defendant-Appellee.

Joseph R. Ramirez; Julia L. Ramirez; Joshua Ramirez; Regina Ramirez,Plaintiffs-Appellants,

v.Butte-Silver Bow County; John McPherson, Sheriff of Butte-Silver Bow County;

Joe Lee, Undersheriff of Butte-Silver Bow County; Jeff Groh, Special Agentiwith The Bureau of Alcohol, Tobacco, and Firearms; John Does 1-50, in their

individual and/or official capacities, Defendants-Appellees.

United States Court of AppealsFor the Ninth Circuit

Argued September 10, 2001.Submission Deferred September 10, 2001.

Submitted and Filed March 13, 2002.Amended July 25, 2002.

279


KOZINSKI, Circuit Judge.

We consider whether and under whatcircumstances law enforcement officers whoexecute a search pursuant to a defectivewarrant enjoy qualified immunity.

I

Agent Jeff Groh of the Bureau of Alcohol,Tobacco and Firearms ("BATF") receivedtwo reports that the Ramirezes kept anautomatic rifle, a rocket launcher, a grenadelauncher and grenades on their ranch inwestern Montana. Groh prepared anapplication for a search warrant andsupporting affidavit, and presented them to amagistrate judge who issued the warrant.The application properly described both theplace to be searched and the objects sought.However, the warrant itself omitted thelatter information entirely: In the spaceprovided to list the items to be seized, Grohmistakenly typed a description of theRamirez home.

Groh led BATF agents and members of thecounty sheriffs department, includingSheriff John McPherson and UndersheriffJoe Lee, in the execution of the warrant.When the officers entered the Ramirezhome, only Mrs. Ramirez was present. Grohtold her they had a search warrant and werethere "because somebody called and saidyou have an explosive device in a box." Theofficers found no illegal weapons orexplosives, but photographed the home'sinterior and recorded the serial numbers ofthe Ramirezes' legal firearms. Mrs. Ramireztried to call her attorney during the searchbut could not reach him. As Groh left, hegave Mrs. Ramirez a copy of the defective

search warrant; neither the application northe affidavit were attached. Nothing wasseized, and no charges were subsequentlyfiled against the Ramirezes.The next day, Mrs. Ramirez reached herattorney and faxed him the warrant. Theattorney then called Groh and questioned thewarrant's validity because of the omittedinformation. He also demanded a copy ofthe warrant application and supportingaffidavit. Groh replied that the documentswere under court seal, but faxed him thepage of the application that contained the listof items to be seized.

The Ramirezes sued the officers underBivens v. Six Unknown Named Agents ofFederal Bureau of Narcotics, 403 U.S. 388,91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and42 U.S.C. § 1983, for violation of theirFourth Amendment rights. The district courtgranted summary judgment to defendants,holding that there was no constitutionalviolation and defendants enjoyed qualifiedimmunity in any case. The Ramirezes alsobrought two other Bivens and section 1983claims, see Parts III & IV infra, but thedistrict court ruled against them on those aswell. The Ramirezes appeal.

II

A. Was there a Fourthviolation?

Amendment

To satisfy the Fourth Amendment, a searchwarrant must describe with particularity theplace to be searched and the items to beseized. U.S. Const. amend. IV; United Statesv. Sayakhom, 186 F.3d 928, 934 (9thCir.1999). The particularity requirementprotects the individual from a "general,exploratory rummaging in [his] belongings."United States v. Lacy, 119 F.3d 742, 746 n.7 (9th Cir.1997) (quoting Coolidge v. New

280

Hampshire, 403 U.S. 443, 467, 91 S.Ct.2022, 29 L.Ed.2d 564 (1971)). It does soboth by "limit[ing] the officer's discretion"and by "inform[ing] the person subject to thesearch what items the officers executing thewarrant can seize." United States v.McGrew, 122 F.3d 847, 850 (9th Cir.1997)(emphasis removed).

We addressed the particularity requirementin McGrew, where federal agents searchedthe home of a suspected drug trafficker. Thewarrant itself did not specify the evidencesought. Rather, in the space provided forthat information, it referred to the "attachedaffidavit which is incorporated herein." Id.at 848. However, agents never servedMcGrew with a copy of the affidavit, eitherduring or after the search. Id. at 849.

According to the "well settled law of thiscircuit," a warrant "may be construed withreference to the affidavit ... if (1) theaffidavit accompanies the warrant, and (2)the warrant uses suitable words of referencewhich incorporate the affidavit." Id. (quotingUnited States v. Hillyard, 677 F.2d 1336,1340 (9th Cir.1982) (internal quotationmarks omitted)). When officers fail to attachthe affidavit to a general warrant, the searchis rendered illegal because the warrantneither limits their discretion nor gives thehomeowner the required information. Id. at850.

Appellees concede that the warrant here wasfacially defective because it provided nodescription of the evidence sought. It alsodidn't refer to or incorporate the applicationor affidavit. Groh attached no documents tothe warrant when he served it on Mrs.Ramirez. Nonetheless, appellees argue thatMcGrew does not control and that the searchwas lawful because Groh's words remediedthe defect. According to Groh, he spoke atlength with the Ramirezes during the search

- Mrs. Ramirez in person, Mr. Ramirez onthe telephone - and listed all of the itemssought. However, the Ramirezes claim thatGroh spoke only to Mrs. Ramirez, and toldher simply that the officers sought "anexplosive device in a box."

This factual dispute is immaterial: Grohcould not have cured the flaw because helacked the authority to amend the warrant.As a law enforcement officer, Groh wasempowered only to execute the warrant.Therefore, he could no more havesupplemented it verbally than he could haveamended it by crossing out the termsapproved by the magistrate and scribblingnew ones in the margins. The only wayGroh could have remedied the defect in thewarrant was to ask a magistrate to issue acorrected version. McGrew thereforecontrols and the warrant failed to complywith the Fourth Amendment.

Our holding is consistent with the goals ofthe particularity requirement, which wentunfulfilled here despite Groh's alleged oralstatements. First, the absence of asufficiently particular warrant increased thelikelihood and degree of confrontationbetween the Ramirezes and the police. Thepresence of a comprehensive and validwarrant "greatly reduces the perception ofunlawful or intrusive police conduct, byassuring the individual whose property issearched or seized of the lawful authority ofthe executing officer, his need to search, andthe limits of his power to search." Illinois v.Gates, 462 U.S. 213, 236, 103 S.Ct. 2317,76 L.Ed.2d 527 (1983) (internal quotationmarks omitted).

Second, the invalid warrant deprived theRamirezes of the means to be on the lookoutand to challenge officers who might haveexceeded the limits imposed by themagistrate. "Citizens deserve the

281

opportunity to calmly argue that agents arcoverstepping their authority or eventargeting the wrong residence." UnitedStates v. Gantt, 194 F.3d 987, 991 (9thCir.1999). Such a dialogue is impossible ifcitizens must rely on officers' verbalrepresentations of the scope of theirauthority. To stand a real chance of policingthe officers' conduct, individuals must beable to read and point to the language of aproper warrant.

Third, permitting officers to expand thescope of the warrant by oral statementswould broaden the area of dispute betweenthe parties in subsequent litigation. Theparties' disagreement over exactly whatGroh said during the search, and to whom hesaid it, is immaterial because the warrantmust contain all authorizations andlimitations in writing.

B. Are Defendants Protected by QualifiedImmunity?

Law enforcement officers are entitled toqualified immunity if they act reasonablyunder the circumstances, even if the actionsresult in a constitutional violation.' Wilson v.Layne, 526 U.S. 603, 614, 119 S.Ct. 1692,143 L.Ed.2d 818 (1999); Marks v. Clarke,102 F.3d 1012, 1026 (9th Cir.1996). What'sreasonable for a particular officer dependson his role in the search. Because searchesoften "require[ ] cooperation and division oflabor," Guerra v. Sutton, 783 F.2d 1371,1375 (9th Cir.1986), officers' roles can varywidely. Typically, only one or a few officersplan and lead a search, but more - perhapsmany more - help execute it. The officerswho lead the team that executes a warrant

While the Ramirezes sued the federal officers underBivens and the county officers under section 1983,"the qualified immunity analysis is identical undereither." Wilson v. Layne, 526 U.S. 603, 609, 119S.Ct. 1692, 143 L.Ed.2d 818 (1999).

are responsible for ensuring that they havelawful authority for their actions. A keyaspect of this responsibility is making surethat they have a proper warrant that in factauthorizes the search and seizure they areabout to conduct. The leaders of theexpedition may not simply assume that thewarrant authorizes the search and seizure.Rather, they must actually read the warrantand satisfy themselves that they understandits scope and limitations, and that it is notdefective in some obvious way. See UnitedStates v. Leon, 468 U.S. 897, 922-23, 104S.Ct. 3405, 82 L.Ed.2d 677 (1984) (searchpursuant to a warrant is invalid if noreasonable officer could have believed thewarrant was valid). The leaders of the searchteam must also make sure that a copy of thewarrant is available to give to the personwhose property is being searched at thecommencement of the search,2 and that suchcopy has no missing pages or other obviousdefects.

Line officers, on the other hand, are requiredto do much less. They do not have toactually read or even see the warrant; theymay accept the word of their superiors thatthey have a warrant and that it is valid.Guerra, 783 F.2d at 1375; Marks, 102 F.3dat 1029-30. So long as they "ma[k]e inquiryas to the nature and scope of [the] warrant,"Guerra, 783 F.2d at 1375, their reliance onleaders' representations about it isreasonable. Id.; Marks, 102 F.3d at 1029-30.The line officers here acted reasonably:They were told that a warrant had beenobtained and learned through an advancebriefing what items could be seized. Guerra,783 F.2d at 1375; Marks, 102 F.3d at 1030.Because they were not required to read thewarrant, the line officers conducting this

2 We note that in this case Agent Groh did not serve acopy of the warrant on Mrs. Ramirez until after thesearch was completed. Of course, this was much toolate. See Gantt, 194 F.3d at 1000-01

282

search cannot reasonably have beenexpected to know that it was defective.

The Ramirezes argue that none of theofficers enjoy qualified immunity because,under McGrew, all of them - leaders andline officers alike - should have known thatthe defective warrant made the searchillegal. McGrew, 122 F.3d at 850 n. 5. ButMcGrew said nothing about the differentduties of leaders and line officers. We heldonly that "[i]t is the government's duty," notthe duty of any particular officer, to serve asufficiently particular warrant. Id. at 850(emphasis added). Because we werereviewing the denial of a motion to suppress,we had no occasion to address the allocationof responsibilities between leaders and therank and file.

The record identifies only Groh as the leaderof the search. He received two reports ofillegal weapons, obtained and served thewarrant, conducted the pre-search briefingand supervised the search itself. However,he neglected to check the warrant for errors.The presence of errors in a warrant does notautomatically deprive search leaders ofimmunity. The question is whether thedefects are such that they would have beennoticed by a reasonably careful officer whoread the warrant before executing it. CfArnsberg v. United States, 757 F.2d 971,981 (9th Cir.1985) (holding that a searchconducted pursuant to a facially flawedwarrant did not violate the FourthAmendment because "the discrepancy [was]not a serious one"). Even the most carefulproofreaders let mistakes slip by, especiallywhen checking their own work.

Nevertheless, Groh is not entitled toqualified immunity. According to his ownaffidavit, he did not read the warrant afterthe magistrate issued it and before he beganthe search. Had he done so, he would surely

have realized that it did not contain a list ofitems to be seized and was therefore faciallydefective. He would then have been able tocorrect the error before going forward withthe search. In most cases, "an officer cannotbe expected to question the magistrate's ...judgment that the form of the warrant istechnically sufficient." Leon, 468 U.S. at921. But "the officer's reliance on [thatjudgment] must be objectively reasonable,and it is clear that in some circumstances theofficer will have no reasonable grounds forbelieving that the warrant was properlyissued." Id. at 922-23 (citation omitted). Noreasonable grounds exist here: The warrantwas "so facially deficient ... in failing toparticularize the place to be searched or thethings to be seized" that, had Groh read it,he could not "reasonably [have] presume[d]it to be valid." Id. at 923.

It is possible that Groh shared authority overthe search with other officers, such asSheriff McPherson and Undersheriff Lee.However, nothing in the record indicatesthis was the case. Therefore, all officersexcept Groh are protected by qualifiedimmunity.

III

The Ramirezes also appeal the dismissal oftheir claim that the officers violated theirright to privacy as protected by the Fifth andNinth Amendments. This claim has twoparts. First, the Ramirezes argue that theofficers violated their right to privacy bynotifying the media of the searchimmediately before it was executed. Theyclaim that the resulting publicity damagedtheir standing in the community.Although the Ramirezes present this claimas one for invasion of privacy, thecircumstances of the search show that it isactually a defamation claim. Nothing in therecord suggests that the media gained access

283

to the Ramirez property. Whateverinformation the media obtained during theraid was gathered from the road adjacent tothe ranch, where any member of the publiccould have observed the goings on. CfHanlon v. Berger, 526 U.S. 808, 809-10,119 S.Ct. 1706, 143 L.Ed.2d 978 (1999)(holding that police violated the FourthAmendment by allowing a media crew toaccompany them onto the premises andobserve a search); Wilson, 526 U.S. at 614,119 S.Ct. 1692, 143 L.Ed.2d 818 ("[I]t is aviolation of the Fourth Amendment forpolice to bring members of the media orother third parties into a home during theexecution of a warrant...."). Therefore, theonly harm that the Ramirezes can show theyhave suffered is reputational injury, fromwhich the Constitution offers no protection.Siegert v. Gilley, 500 U.S. 226, 233-34, 111S.Ct. 1789, 114 L.Ed.2d 277 (1991).

The Ramirezes also argue that the searchitself violated not only their right to be freefrom unreasonable searches and seizures,but also their right to privacy. "[C]ertainwrongs affect more than a single right and,accordingly, can implicate more than one ofthe Constitution's commands." Armendarizv- Penman, 75 F.3d 1311, 1320 (9thCir.1996). However, the Supreme Court hasheld that plaintiffs cannot "double up"constitutional claims in this way: Where aclaim can be analyzed under "an explicittextual source" of rights in the Constitution,a court may not also assess the claim underanother, "more generalized," source.Graham v. Connor, 490 U.S. 386, 394- 95,109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)(analyzing claim under Fourth Amendmentbut not under substantive due process); seealso Hufford v. Mcfnaney, 249 F.3d 1142,1151 (9th Cir.2001) (analyzing claim underFirst Amendment but not under substantivedue process); Armendariz, 75 F.3d at 1319(analyzing claim under Fourth and Fifth

Amendments but not under substantive dueprocess). Here, because the FourthAmendment supplies an explicit textualsource of constitutional protection againstunlawful searches, that Amendment, and notthe more general right to privacy, governsthe constitutionality of the search.

IV

Finally, the Ramirezes appeal the dismissalof their claim that each of the officers isliable as a bystander for failing to intercedeand prevent his co-defendants' constitutionalviolations. See United States v. Koon, 34F.3d 1416, 1424-25 (9th Cir.1994), rev'd onother grounds, 518 U.S. 81, 116 S.Ct. 2035,135 L.Ed.2d 392 (1996). The district courtdismissed this claim on the basis of itsholding that no constitutional violationexisted.

As to the line officers, this claim isforeclosed by our ruling that they had noduty to read the warrant and therefore couldnot have known that the warrant wasdefective. They cannot therefore reasonablybe held liable for failing to intercede. As toGroh, it is clear from the record that he wasnot aware that the warrant was defectiveuntil long after the search was completed,when he spoke to the Ramirezes' attorney.Groh cannot be held liable for failing to stopa search he did not know was illegal.

AFFIRMED in part and REVERSED inpart. No costs.

284

Liability in Searches Is Debated

Los Angeles Times

March 4, 2003

David G. Savage

WASH[NGTON -- The Supreme Courtsaid Monday it would reconsider anotherruling from the U.S. 9th Circuit Court ofAppeals, this one saying police officerscan be held personally liable if theycarry out a search with a warrant that ismissing key facts.

Officers have a duty to proofreadwarrants, even after they have beenapproved by a judge, the appeals courtsaid. And officers who slip up can beforced to pay damages to those whowere subjected to the search, the 9thCircuit held last year.

A lawyer for a federal agent in Montanacalled this strict rule "radical" and"intolerable" in an appeal.

The justices said they would hear thecase, Groh vs. Ramirez, in the fall.

Jeff Groh, an agent for the federalBureau of Alcohol, Tobacco, Firearmsand Explosives, received two reports thata ranch in western Montana owned bythe Ramirez family had illegal weapons,including grenades and a rocketlauncher.

He presented the evidence to amagistrate. But on the warrant, hemistakenly omitted the description of theitems sought and instead typed adescription of the Ramirez home. Themagistrate approved the warrant, and

Groh led a team of federal agents andcounty sheriffs to the ranch.

But the agents found nothing, and nocharges were filed. Groh left a copy ofthe warrant with Julia Ramirez.

Afterward, a lawyer for the family notedthe warrant was defective, and he suedGroh and the other agents for conductingan unreasonable search in violation ofthe 4th Amendment. A federal judgethrew out the claim, but the 9th Circuitrevived it. "The well-settled law of thiscircuit," the appeals court said, is that asearch warrant must list all the items thatare sought.

Because Groh failed in that duty, he canbe held liable, the 9th Circuit said. ButGroh's lawyer said no other appealscourt has adopted such a rigid rule.

Copyright V 2003 Los Angeles Times

285

02-473 United States v. Banks

Ruling Below: (9th Cir., 282 F.3d 699, 70 Crim. L. Rep. 526)

When law enforcement officers seeking to enter premises to execute search warrant do not faceexigent circumstances and, absent cooperation from persons inside, would have to make forcibleentry entailing destruction of property, they may not do so unless, after knocking and announcingpursuant to 18 U.S.C. § 3109, they receive explicit refusal of admittance or wait amount of timethat is significant and longer than they would be required to wait if nonforcible entry werepossible; police in this case who had no knowledge suggesting that drug suspect posed specialrisk and, upon knocking on apartment door, heard no sound suggesting that he was moving awayfrom door violated Fourth Amendment and knock-and-announce statute by waiting only 15-20seconds before making forcible entry.

Question Presented: Did law enforcement officers executing warrant to search for illegal drugsviolate Fourth Amendment and 18 U.S.C. § 3109, thereby requiring suppression of evidence,when they forcibly entered small apartment in middle of afternoon 15-20 seconds after knockingand announcing their presence?

UNITED STATES of America, Plaintiff-Appellee,V.

Lashawn Lowell BANKS, Defendant-Appellant.

United States Court of AppealsFor the Ninth Circuit

Argued and Submitted September 10, 2001Filed March 5, 2002.


POLITZ, Circuit Judge.

Lashawn Lowell Banks appeals his guiltyplea conviction for possession of acontrolled substance with intent todistribute, and for being a drug user inpossession of a firearm. His plea followedthe distnict court's denial of his motion tosuppress certain evidence. Banks reservedhis right to appeal. A close review of therecord, counsel's arguments, and guidingprinciples, persuades us that a reversal and

remand is in order.

BACKGROUND

The present action concerns the execution ofa search warrant on Banks' apartment byNorth Las Vegas Police Department officersand FBI agents. The officers positionedthemselves at the front and rear of theapartment and followed the statutory "knockand announce" procedure by knockingloudly on the apartment door andannouncing "police search warrant." See 18U.S.C. § 3109. After fifteen to twentyseconds without a response, armed SWAT

286

officers made a forced entry into Banks'apartment.

Once inside, the officers found Banks in thehallway outside his bathroom. Banks, whoobviously had just emerged from hisshower, was forced to the floor andhandcuffed. He then was seated at hiskitchen table for questioning and shortlythereafter was provided underwear withwhich to cover himself. Two agentsquestioned Banks while other officerssearched his apartment. Banks maintainsthat he was under the influence of drugs andalcohol during the interrogation. Bothagents, however, testified that theyperceived no indications that Banks wasunder the influence. Banks also asserts thathe was nervous and intimidated by a "good-cop versus bad-cop" routine utilized by theinterrogating agents and the hooded SWATofficers searching the apartment. Theinterrogating agents maintain that Banksappeared calm and was able to reasonthroughout the interview.

The agents questioned Banks forapproximately forty-five minutes, and aboutmidway thereof asked Banks to reveal hissuppliers. Banks stated that he would notreveal his suppliers before talking to anattorney. The agents continued thequestioning.

Prior to trial Banks moved to suppress thestatements he made during the interrogation.He contends that the statements should havebeen suppressed on the grounds that theywere obtained: (a) in violation of 18 U.S.C.§ 3109 because the officers failed to wait areasonable period of time before forcefullyentering his residence when executing thesearch warrant; (b) in violation of the fifthamendment because he did not make aknowing and voluntary waiver of his rightsduring the interrogation; and (c) in violation

of the fifth amendment because theinterrogation continued after he made anunequivocal request for an attorney. Thedistrict court denied the suppression motion.Following this denial, Banks pled guilty topossession of a controlled substance withintent to distribute and to being a drug userin possession of a firearm.

Banks expressly reserved his right to appealthe court's denial of his Motion to Suppress.This appeal followed.

ANALYSIS

I. 18 U.S.C. § 3109

We review a trial court's legal conclusionsde novo, reviewing findings of factunderlying those conclusions for clear error.

Title 18 U.S.C. § 3109, commonly referredto as the "knock and announce" statute,establishes guidelines for federal lawenforcement officers when executing asearch warrant. The statute directs that:

The officer may break open any outer orinner door or window of a house, or anypart of a house, or anything therein, toexecute a search warrant, if, after notice ofhis authority and purpose, he is refusedadmittance or when necessary to liberatehimself or a person aiding him in theexecution of the warrant.

18 U.S.C. § 3109.

Under the facts at bar this statute raises twocritical issues: (a) whether the officersprovided notice of their authority andpurpose; and (b) whether they were refusedadmittance. There is no dispute that propernotice of authority and purpose was givenherein. Before us is the second issue, refusalof admittance.

287

Banks contends that the officers executingthe search warrant entered his apartmentillegally because they failed to wait areasonable time, after receiving no response,before forcefully entering his quarters.Banks further contends that because theentry was in violation of his fourthamendment rights and 18 U.S.C. § 3109, allevidence, including his statements,constitute fruits of an illegal search andshould be suppressed. We find thiscontention persuasive.

A literal application of the statute wouldallow entry only after both announcementand specific denial of admittance. Ourprecedents, however, dictate that anaffirmative refusal of entry is not requiredby the statute, and that refusal may beimplied in some instances. See, e.g., UnitedStates v. Allende, 486 F.2d 1351, 1353 (9thCir.1973). "A failure to answer a knock andannouncement has long been equated with arefusal to admit the search party and ajustification for forcible entry." UnitedStates v. Ramos, 923 F.2d 1346, 1356 (9thCir.1991) overruled on other grounds byUnited States v. Ruiz, 257 F.3d 1030 (9thCir.2001) (citations omitted). Furthermore,"[t]here are no set rules as to the time anofficer must wait before using force to entera house; the answer will depend on thecircumstances of each case."

Section 3109 serves the following interests:(a) reducing the risk of harm to both theofficer and the occupants of the house to beentered; (b) helping to prevent theunnecessary destruction of private property;and (c) symbolizing respect for individualprivacy summarized in the adage that "aman's house is his castle." United States v.Bustamante-Gamez, 488 F.2d 4, 9 (9thCir.1973) (quoting Miller v, United States,357 U.S. 301, 307. 78 S.Ct. 1190, 2 L.Ed.2d1332 (1958)).

Entries may be classified into four basic

categories, consistent with the interestsserved by 18 U.S.C. § 3109: (1) entries in

which exigent circumstances exist and non-forcible entry is possible, permitting entry tobe made simultaneously with or shortly afterannouncement; (2) entries in which exigentcircumstances exist and forced entry bydestruction of property is required,necessitating more specific inferences ofexigency; (3) entries in which no exigentcircumstances exist and non-forcible entry ispossible, requiring an explicit refusal ofadmittance or a lapse of a significant amountof time; and (4) entries in which no exigentcircumstances exist and forced entry bydestruction of property is required,mandating an explicit refusal of admittanceor a lapse of an even more substantialamount of time. Id. at 12. The action at barfalls into the final category because noexigent circumstances existed and the entryrequired destruction of property - i.e., thedoor to Banks' apartment.

Consideration of the foregoing categoriesaids in the resolution of the essentialquestion whether the entry made herein wasreasonable under the circumstances. Inaddressing that inquiry, we categorizeentries as either forced or non-forced. Thereasonableness must then be determined inlight of the totality of the circumstancessurrounding the execution of the warrant,particularly considering the duration of theofficers' pause before making a forced entryafter the required knock and announcement.

Our task is to determine what constitutes areasonable waiting period before officersmay infer that they have been deniedadmittance. In assessing the reasonablenessof the duration of the officers' wait, wereview all factors that an officer reasonablyshould consider in making the decision toenter without an affirmative denial. Those

288

factors include, but are not limited to: (a)size of the residence; (b) location of theresidence; (c) location of the officers inrelation to the main living or sleeping areasof the residence; (d) time of day; (e) natureof the suspected offense; (t) evidencedemonstrating the suspect's guilt; (g)suspect's prior convictions and, if any, thetype of offense for which he was convicted;and (h) any other observations triggering thesenses of the officers that reasonably wouldlead one to believe that immediate entry wasnecessary.

In the case before us, the officers knockedonce and announced their purpose. Theofficers heard no sound coming from thesmall apartment that suggested that anoccupant was moving away from the door,or doing anything else that would suggest arefusal of admittance. We know from therecord that sounds were transmittedrelatively easily, for Officer Tomasso,waiting outside at the rear of the apartment,heard Officer Crespo's knock at the frontdoor. Yet none of the officers testified thatthey heard any sound coming from withinthe apartment. There was nothing else thattriggered the officers' senses, and there wereno exigent circumstances warranting awaiver of the reasonable delay. The officershad no specific knowledge of any facts orreasonable expectations from which theycould reasonably have believed that entryinto Banks' residence would pose any riskgreater than the ordinary danger ofexecuting a search warrant on a privateresidence.

Because the officers were not affirmativelygranted or denied permission, they wererequired to delay acting for a sufficientperiod of time before they could reasonablyconclude that they impliedly had beendenied admittance. After pausing amaximum of fifteen to twenty seconds, the

officers forced entry. Banks came out of hisshower upon hearing the sound of his doorbeing forced open, and stumbled into thehallway concerned that his apartment wasbeing invaded. Upon entering, the officersfound Banks naked, wet, and soapy from hisshower. Under these circumstances, we arenot prepared to conclude that the delay offifteen to twenty seconds after a singleknock and announcement before forcedentry was, without an affirmative denial ofadmission or other exigent circumstances,sufficient in duration to satisfy theconstitutional safeguards.

II. Banks' Fifth and Sixth AmendmentClaims

As noted above, we review a trial court'slegal conclusions de novo, and our review offindings of fact underlying thoseconclusions is for clear error. However,"[w]e review the district court'sdetermination that the defendant knowinglyand voluntarily waived his Miranda rightsunder the clearly erroneous standard."United States v. Fouche, 833 F.2d 1284,1286 (9th Cir.1987).

1. The Voluntariness of Banks' Statements

The fifth amendment states that no person"shall be compelled in any criminal case tobe a witness against himself." Under theteachings of Miranda v. Arizona, to assurethe meaningful protection of this fifthamendment right, a defendant subject tocustodial interrogation must be advised ofhis "right to remain silent, that any statementhe does make may be used ... against him,and that he has a right to the presence of anattorney, either retained or appointed." Id. at444, 86 S.Ct. 1602. A knowing andvoluntary waiver of these rights is

1 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966).

289

permissible. Such a waiver, however, mustbe established by a preponderance of theevidence. Colorado v. Connelly, 479 U.S.157, 168-69, 107 S.Ct. 515, 93 L.Ed.2d 473(1986).

Banks contends that his statements wereobtained involuntarily and through coercionin violation of his fifth amendment rights.He complains that because he was under theinfluence of alcohol and narcotics at thetime of the interrogation, he was unable tomake a knowing and voluntary waiver of hisrights. He further asserts that his statementswere coerced because he was terrorized bythe entry of the police into his home,intimidated by officers employing the"good-cop versus bad-cop" routine, and infear of being paraded naked around theneighborhood. Our review of the record,however, persuades us that the district courtdid not err in its determination that he madea knowing and voluntary waiver of theserights.

A confession made in a drug or alcoholinduced state, or one that is the product ofphysical or psychological pressure, may bedeemed voluntary if it remains "the productof a rational intellect and a free will...."Medeiros v. Shimoda, 889 F.2d 819, 823(9th Cir.1989) (citations omitted). Theinterrogating agents testified about Banks'demeanor during the interrogation. Neitherdetected any indication that Banks wasunder the claimed adverse influence, andboth described him as calm and able toreason. Similarly, the record demonstratesthat Banks was able to understand thecircumstances, follow instructions, andanswer questions. From the record, Banksdoes not appear to have been "incapacitated"by his use of drugs and alcohol. During theinterrogation, he answered some of theagent's questions while refusing to answerthose regarding his suppliers and was able to

provide officers with the combination to his

safe. Prior to being taken to the police

station, he requested that his girlfriend be

contacted so she could secure his apartment.Because the evidence supports the district

court's conclusion that Banks' statementswere the product of rational intellect and a

free will, we hold that the district court didnot err in finding a knowing and voluntarywaiver.

2. Banks' Right to Counsel Under Miranda

Banks also contends that his statements wereobtained in violation of his right to counselunder Miranda. No further questioning of asuspect may occur after he expresses thedesire to consult with counsel, and policemust clarify an ambiguous or equivocalrequest for an attorney. Miranda, 384 U.S.at 474, 86 S.Ct. 1602; see also United Statesv. Fouche, 833 F.2d 1284, 1287 (9thCir.1985). Notwithstanding, "a defendantmay selectively waive his Miranda rights,deciding to respond to some questions butnot others." Bruni v. Lewis, 847 F.2d 561,563 (9th Cir. 1988) (citations omitted).

In support of his claim that his right tocounsel under Miranda was violated, Banksasserts that during the latter part of hisquestioning he told the agents that hewanted to consult with a lawyer about thepossibility of making a "deal" in exchangefor divulging information about hissuppliers. The record reflects that when theagents asked Banks a question regarding hissuppliers, he responded that he wanted tospeak to an attorney before revealing hissuppliers to see if he could secure someconsideration, what one might deem a quidpro quo, for his cooperation with theofficers. The agents reasonably understoodBanks' statement to mean he was willing toanswer some questions but not others. Thatconclusion is fully supported by the record.

290

The judgment is AFFIRMED in part,REVERSED in part and the matter isREMANDED for further proceedingsconsistent herewith.

FISHER, Circuit Judge, dissenting in part,concurring in part.

The majority rules the entry in this caseunconstitutional and in violation of § 3109because the officers delayed only 15 to 20seconds after knocking loudly on Banks'apartment door and announcing "policesearch warrant." Simply put, the policeshould have waited longer - how muchlonger is not specified - before they couldlawfully assume that their knock andannouncement had been heard, that Bankswas not going to open the door voluntarilyand that they were justified in forcing thedoor open with a battering ram. I share mycolleagues' concerns that officers notperemptorily and forcibly invade the privacyof a suspect's home, and it is disquieting tovisualize Banks' shock and embarrassmentas he emerged naked and still soapy from hisshower and confronted the officers who hadjust burst through his front door. ***Nonetheless, although this case admittedly isa close call, I cannot agree that the officershere acted outside the limits of establishedcase law or - more to the point - even thecriteria the majority articulates. I thereforerespectfully dissent from the § 3 109 portionof the majority opinion (Part I). Otherwise, Iconcur in Part II of the opinion.

I do not think the outcome of this case canturn simply on the amount of time theofficers waited after knocking. Banks didnot hear the knock or announcement in thefirst place; thus it would have made nopractical difference if the officers waitedsubstantially longer than 15 or 20 seconds. Ifthere was a problem of procedural orconstitutional dimension, it had to be that

the officers did not knock twice or engage insome other effort to determine whetherBanks was home and had heard the firstknock. Although hinting that was the realproblem here, the majority neverthelessholds that the officers:

were required to delay acting for asufficient period of time before they couldreasonably conclude that they impliedlyhad been denied admittance....Under these circumstances, we are notprepared to conclude that the delay offifteen to twenty seconds after a singleknock and announcement before forcedentry was, without an affirmative denial ofadmission or other exigent circumstances,sufficient in duration to satisfy theconstitutional safeguards.

In assessing whether there was a reasonabledelay, the majority acknowledges that"[t]here are no set rules as to the time anofficer must wait before using force to entera house; the answer will depend on thecircumstances of each case." McClure v.United States, 332 F.2d 19, 22 (9thCir.1964); see also United States v.Bustamante-Gamez, 488 F.2d 4, 9(9thCir.1973) ("In short, 'a claim under 18U.S.C. § 3109 depends upon the particularcircumstances surrounding the [entry]."')(quoting Jones v. United States, 362 U.S.257, 272, 80 S.Ct. 725, 4 L.Ed.2d 697(1960)).

Nonetheless, the majority then extrapolatesfrom Bustamante-Gamez four basiccategories of entry, placing this case incategory 4: "entries in which no exigentcircumstances exist and forced entry bydestruction of property is required,mandating an explicit refusal of admittanceor a lapse of an even more substantialamount of time" - that is, substantially morethan the "significant amount of time"

291

required under category 3. Refining itsanalysis further, the majority sets forth anonexclusive list of factors "an officerreasonably should consider in making thedecision to enter [forcibly] without anaffirmative denial." The source of this list isnot identified, but I have no quarrel with itssubstance - so long as it is not read assubstituting a checklist approach to what ourcase law recognizes is a circumstance-specific evaluation.

Where I do disagree with the majority,however, is its application of these factors -or more to the point, its disregard ordiscounting of key factors present here.Among the listed factors are "(a) size of theresidence"; "(c) location of the officers inrelation to the main living or sleeping areasof the residence"; and "(e) nature of thesuspected offense." Banks lived in a small,two-bedroom, one-bathroom apartment. Thebathroom was located in the middle part ofthe apartment. Banks testified that, "It's nota very big apartment." And, "2 steps fromthe shower is - you can look left, see thedoor." Arriving at Banks' apartment at about2:00 p.m., the officers positioned themselvesat the front and back doors. There is nodispute that the officers gave proper noticeof their authority and purpose. OfficerCrespo knocked loudly on the front door andannounced "police search warrant." OfficerTomasso, at the rear, testified he heardCrespo's loud knock. (The record is silent asto Tomasso's also having heard theannouncement, or whether anyone heardwater running or other sounds of someonetaking a shower.) On these facts, the officerscould reasonably have assumed Banks hadheard at least the loud knock and probablythe announcement.

Moreover, Banks' suspected offense wasdrug dealing; the warrant to search hisapartment was predicated upon information,

corroborated by a controlled buy, that Bankswas selling cocaine at his apartment. Thus

there was some basis for concern that Banks'delay in responding might be related toattempts to dispose of evidence. See UnitedStates v. Spikes, 158 F.3d 913, 926 (6thCir. 1998), where the court noted that "wheredrug traffickers may easily and quicklydestroy the evidence of their illegalenterprise by simply flushing it down thedrain, 15 to 20 seconds is certainly longenough for officers to wait before assumingthe worst and making a forced entry." Spikesalso cautioned that "[t]his reality, however,must be balanced against the fact that thesimple presence of drugs alone does notjustify abandoning the 'knock and announce'rule or so diluting its requirements that itbecomes a meaningless gesture.... Thus thepresence of drugs in the place to besearched, while not a conclusive factor,lessens the length of time law enforcementmust ordinarily wait outside before enteringa residence." Id. (citation omitted). See alsoUnited States v. Jones, 133 F.3d 358, 361-62(5th Cir.1998) (reviewing cases, andupholding wait of 15 to 20 seconds afterknock "given the possibility that a longerwait might well have resulted in thedestruction of evidence[illegal drugs]");United States v. Garcia, 983 F.2d 1160,1168 (1st Cir.1993) (holding wait of 10seconds after knock reasonable whereoccupants of apartment were believed topossess cocaine, "a substance that is easilyand quickly hidden or destroyed"). But cfBecker, 23 F.3d at 1541 ("[W]hile peril toofficers or the possibility of destruction ofevidence or escape may well demonstrate anexigency [justifying immediate entry], mereunspecific fears about those possibilities willnot."); United States v. Moreno, 701 F.2d815, 818 (9th Cir.1983), vacated on othergrounds by 469 U.S. 913, 105 S.Ct. 286, 83L.Ed.2d 223 (1984) ("In order to justifyforced entry without an announcement of

292

authority and refusal of admittance, theremust be some evidence to support thesuspicion that contraband will bedestroyed."); United States v. Fluker, 543F.2d 709, 717 (9th Cir.1976) (no evidencethe defendants were destroying narcotics tojustify officers entering without any knockor announcement).

The majority acknowledges some of thesefactors in passing, but gives them little or noweight. With respect, I fail to see whatguidance law enforcement should draw fromsuch a holding that disregards some of thevery factors the majority identifies asrelevant. Nor do I think the majority'sconclusion is warranted under thesecircumstances, or in light of decisionsinvolving comparable situations where a 15to 20 second delay has been held sufficient.

First, 15 to 20 seconds is not an insignificantamount of time to wait after a loud knockand announcement. Knock, then count outthe time to see for yourself.

Second, Banks was in the shower and didnot hear the knock and announcement, soeven if the wait had been longer, absentanother knock or announcement, he stillwould not have responded.

Third, although there is no Ninth Circuitprecedent directly on point, our case law -albeit cautionary - and that of other circuitstends to support the entry here. Wepreviously have held that a five second waitafter three loud knocks and anannouncement was not a reasonablysignificant amount of time to permit thedefendant to determine who was at the doorand to respond to the request for admittance,where the warrant was executed early in themorning and the occupants of the apartmentwere likely to be asleep. United States v.Granville, 222 F.3d 1214, 1218-19 (9th

Cir.2000). Here, however, the warrant wasexecuted in the middle of the afternoon andthere was ample time for Banks to respondto the request for admittance. The SixthCircuit has held that "when officers executea warrant in the middle of the day ... thelength of time the officers must tarry outsidediminishes." Spikes, 158 F.3d at 927.Furthermore, given the small size of Banks'apartment, there was no reason for theofficers to assume Banks had not hadsufficient time to hear and respond to theknock and announcement in the 15 to 20second interval. The Eighth Circuitspecifically addressed such a circumstancein United States v. Lucht, 18 F.3d 541 (8thCir.1994). There, the court concluded a 20second wait after a knock and announcementwas reasonable where the defendants' houseswere small, the defendants were awake atthe time and there was probable cause tobelieve they possessed narcotics. Id. at 549."In these circumstances, the possibility wasslight that those within did not hear or couldnot have responded promptly, if in fact theyhad desired to do so." Id. The Tenth Circuithas upheld an entry after a 10 to 12 secondwait. United States v. Knapp, I F.3d 1026(10th Cir.1993). Because the defendant,whose presence was assumed given theilluminated lights in the house, gave noindication he intended to allow the officersinto his home voluntarily, the court held,"[i]t was plausible for the officers toconclude that they were affirmativelyrefused entry after a ten to twelve secondinterval without a verbal or physicalresponse." Id. at 1031.

In a case quite similar to this, the District ofColumbia Circuit held that a 15 to 20 secondwait after a single knock and announcementwas sufficient, and that a second knock wasnot required. United States v. Spriggs, 996F.2d 320 (D.C.Cir. 1993).

293

Clearly the agents did not actunreasonably in entering the apartmentafter knocking and announcing themselvesonly a single time.... One need seekadmittance only once in order to berefused.... With respect to the delay beforeentering, under our case law the agentswere justified in concluding that they hadbeen constructively refused admittancewhen the occupants failed to respondwithin 15 seconds of their announcement.

Id. at 322-23. On the other hand, in UnitedStates . Phelps, 490 F.2d 644, 646 (9thCir.1974), in upholding a forced entry, wegave weight to the fact that agents hadknocked and announced twice, waiting 5 to10 seconds after each before forcing entry.But, noting the circumstance-specific natureof the inquiry, Phelps emphasized that "itmatters not that the record reveals ten,fifteen, or twenty seconds, for the true rulerejects time alone, even 'an exceedinglyshort time,' such as ten seconds, as thedecisive factor." Id. at 647(citing Jackson v.United States, 354 F.2d 980 (1st Cir.1965));see also United States v. Ramos, 923 F.2d1346, 1355-56 (9th Cir.1991), overruled onother grounds by United States v. Ruiz, 257F.3d 1030 (9th Cir.2001) (en banc)(upholding entry after two knocks andannouncements followed by 45 seconddelay). Thus, I do not read Phelps asrequiring a second knock here, although -given the circumstances - that might havebeen a more effective way to assure thatBanks heard the demand for entry and hadan opportunity to respond.

I do not know what the majority makes ofPhelps or Spriggs, because they are notdiscussed. Indeed, the majority neglectsmost of the authority I discuss above. Suchauthority at the very least provides guidancefor determining the reasonableness of the 15to 20 second wait considering the specific

circumstances of Banks' situation - he

resided in a small apartment, there was a

loud knock and announcement, he was

suspected of possessing illegal narcotics and

the warrant was executed in the middle of

the day. On these facts, I believe it was not

unreasonable for the officers to conclude

that Banks had heard and constructivelydenied their request for entry. Accordingly, Irespectfully dissent from Part I of themajority opinion.

294

Supreme Court to Consider Police Search

AP Online

February 24, 2003

Gina Holland

WASHINGTON (AP) The SupremeCourt agreed Monday to consider howlong police with a search warrant mustwait before breaking down a door, usingas a test case the arrest of a drug suspectwho was in the shower when the SWATteam stormed in.

An appeals court ruled that authoritiesacted unreasonably in using a batteringram to knock down Lashawn LowellBanks' door just 15 to 20 seconds afterdemanding entrance.

The commotion interrupted Banks'shower and also violated theconstitutional ban on unreasonablesearches and seizures, the San Francisco-based 9th U.S. Circuit Court of Appealsruled.

The Supreme Court will consider thisfall whether narcotics found during thesearch of Banks' Las Vegas apartmentcould have been used as evidence.

In 1997 the Supreme Court ruled thatpolice armed with court warrants tosearch for drugs must knock andannounce themselves unless they canshow they had reason to believe asuspect would be dangerous or woulddestroy evidence if alerted to the raid.The Banks case is a follow-up to thatdecision.

The Bush administration urged thejustices to use the case to clarify howlong officers must wait during raids likethe one on Banks' small apartment in1998.

The appeals court decision "createssignificant uncertainty - and needlessand potentially dangerous delays in arecurring aspect of police practice,"justices were told in a filing by SolicitorGeneral Theodore Olson, theadministration's top Supreme Courtlawyer.

Olson said Banks could have flusheddrugs down the toilet while officerswaited outside during the afternoon raid.

Banks' attorney, Randall Roske, said ifofficers had waited just a few moreseconds, "it might have afforded (Banks)the chance to have met the intruders withthe small dignity of a towel. It is just thissort of privacy interest which is at thevery core of the Fourth Amendment."

He also said in filings that the SupremeCourt should not set rigid rules that a 20-second delay during a police raid isconstitutional. Courts should handlequestionable searches on a case-by-casebasis, Roske told the court.

Banks was sentenced to 11 years inprison for possession of drugs with

295

intent to distribute and possession of agun.

Officers were told by an informant that adrug dealer known as "Shakes" lived inthe apartment. They knocked down thedoor after knocking and announcing thatthey had a search warrant. They forcedBanks to the floor and handcuffed him,then moved him to a kitchen chair forquestioning. Officers gave him someunderwear, court records show.

"They only knocked once, that couldbecome an issue. Should they haveknocked twice?" said John Wesley HallJr., a specialist in search and seizurecases who sits on the board of theNational Association of CriminalDefense Lawyers. "The poor guy wasnaked coming out of the shower. Fifteenseconds is not enough time."

James Tomkovicz, a criminal lawprofessor at the University of Iowa, saidit would be hard for the court to tell lawofficers how many seconds, or minutes,they have to wait before entering ahome.

"There's no way they'll put a stopwatchon this," Tomkovicz said.

The case is United States of America v.Banks, 02-473.

Copyright C 2003 The Associated Press

296

In the Ninth we trustTwo recent opinions by the Ninth Circuit should be celebrated, while they last.

Champion

May, 2003

Milton Hirsch & David Oscar Markus

United States v. Banks

First up is United States v. Banks.Lashawn Lowell Banks' life changed onerecent afternoon as he was showering inhis small two-bedroom/one- bathroomapartment. North Las Vegas PoliceDepartment officers and FBI agents,attempting to execute a search warranton that apartment, positioned themselvesat the front and rear of the apartment.They "knock[ed] loudly on theapartment door and announc[ed] 'policesearch warrant."'

No one answered their calls. So after 15to 20 seconds without a response, armedSWAT officers huffed and puffed andknocked Banks' door down. Banks,hearing the officers rumble into hisapartment, emerged from his shower,"naked, wet and soapy." He was forcedto the floor and handcuffed, withoutbeing given any clothes or anopportunity to dry off After beingquestioned by agents for some time, hewas provided "underwear with which tocover himself."

During questioning, Banks madeincriminating statements. He moved tosuppress those statements, arguing thatthe officers violated 18 U.S.C. § 3109"because the officers failed to wait areasonable period of time beforeforcefully entering his residence when

executing the search warrant." Thedistrict court denied that motion, andBanks, a Las Vegas resident, decided totake his chances with the Ninth Circuit.Good bet, Banks.

The Ninth Circuit reversed. Fifth CircuitSenior Judge Henry Politz wrote theopinion for the majority, which alsoincluded Judge Fletcher. Judge Fisherdissented. Judge Politz started byexamining the plain wording of Title 18U.S.C. § 3109, commonly referred to asthe "knock and announce" statute. Itprovides:

The officer may break open any outeror inner door or window of a house, orany part of a house, or anythingtherein, to execute a search warrant, if,after notice of his authority andpurpose, he is refused admittance orwhen necessary to liberate himself or aperson aiding him in the execution ofthe warrant.

The court pointed out that the officers"provided notice of their authority andpurpose." Accordingly, the issue was"whether they were refused admittance."Of course, "[a] literal application of thestatute would allow entry after bothannouncement and specific denial ofadmittance."' But just about every court,

' 282 F.3d 699, 703 (9th Cir. 2002). In additionto the literal reading of the statute, a historical

297

including the Ninth, has ruled that anaffirmative refusal of entry is notrequired by the statute, and that refusalmay be implied in some instances.

In determining what was reasonable inthis case, the court explained that theknock and announce rule served thefollowing interests: reducing risk ofharm to both law enforcement andoccupants of the house; helping toprevent unnecessary destruction orproperty; and symbolizing respect forindividual privacy summarized in theadage that "a man's house is his castle."The court concluded that taking theseprinciples into account, combined withthe fact that in this entry, no exigentcircumstances existed and force had tobe used to enter the home, an explicitrefusal of admittance or a lapse of asubstantial amount of time wasnecessary before breaking into Mr.Banks' home.

The court made this determinationexamining the chameleon we call thetotality of the circumstances, i.e., "sizeof the residence, location of theresidence, location of the officers inrelation to the main living or sleepingareas of the residence, time of day,nature of the suspected offense, evidencedemonstrating the suspect's guiltysuspect's prior convictions, ... and anyother observations triggering the senses

review of the knock and announce ruledemonstrates that refusal was required before thepolice could forcibly enter. See Tracey Maclin,Let Sleeping Dogs Lie: Why The Supreme CourtShould Leave Fourth Amendment HistoryUnabridged, 82 B.U. L. REV. 895, 903-14(2002) (discussing the history of the knock andannounce rule and the requirement that atcommon law it was an officer's obligation torefrain from using force until his request forentry had been refused).

of officers that reasonably would lead

one to believe that immediate entry wasnecessary."

Here "there was nothing ... that triggeredthe officers' sense, and there were notexigent circumstances warranting awaiver of the reasonable delay" and "theofficers had no specific knowledge ofany facts or reasonable expectationsfrom which they could reasonably havebelieved that entry into Banks' residencewould pose any risk greater than theordinary danger of executing a searchwarrant on a private residence." Andbecause they were never deniedpermission to enter the residence, theofficers "were required to delay actingfor a sufficient period of time beforethey could reasonably conclude that theyimpliedly had been denied admittance."Fifteen to twenty seconds after a singleknock didn't cut it under thesecircumstances because there was noaffirmative denial of admission or otherexigent circumstances.

Copyright C 2003 by NationalAssociation of Criminal DefenseLawyers, Inc.; Milton Hirsch, DavidOscar Markus

298

WHY KNOCK? THE DOOR WILL INEVITABLY OPEN: AN ANALYSIS OFPEOPLE VSTEVENS AND THE MICHIGAN SUPREME COURT'S

DEPARTURE FROM FOURTH AMENDMENT PROTECTION

46 Wayne Law Review 1659

Fall, 2000

Robin L. Gentry


2. The Knock-and-Announce Rule

The knock-and-announce rule has itsroots in English common law. The firstjudicial ruling came in 1603 inSemayne's Case, which held that asheriff must announce his presence andpurpose and request entrance beforebreaking into a home. The holding inSemayne's Case relies on a statute thatcan be traced back to 1275, which wasenacted as a declaration of the commonlaw.

In the United States, individual statesadopted this rule either by statute orjudicial decision. The federalgovernment enacted the federal knock-and-announce statute in 1917. ***

Important policy considerationsunderlie the knock-and-announce rule.The protection of both officers andhomeowners is a primary reason for therule. Police are required to announcetheir presence in order to avoid beingmistaken for a burglar. A homeowner'sand an occupant's privacy interests arealso protected by the knock-and-announce rule. The requirement of

waiting before entering gives thehomeowner a chance to ready himselfbefore the police enter his house. Thehomeowner's property interest isprotected by giving him an opportunityto open a door before a forcible entry isattempted, therefore preventingunnecessary property damage. Theknock-and-announce rule protects the"overriding respect for the sanctity of thehome that has been embedded in ourtraditions since the origins of theRepublic."

Three exceptions to the knock-and-announce requirement have arisen due toexigent circumstances: peril, uselessgesture, and destruction of evidence.Police are permitted to forgo the knock-and-announce requirement if they have areasonable basis to suspect that they arein physical danger from the homeowneror occupant. The useless gestureexception is permitted when theoccupants of the house already haveknowledge of the police presence andpurpose prior to their entrance. Thepolice may also enter without waiting ifthey can establish that there is a dangerevidence will be destroyed between thetime the police knock and enter. Aviolation of the knock-and-announcestatute will be excused if any of theseexigent circumstances are proven. Theseexceptions are limited; the United States

299

Supreme Court has refused to allow aper se blanket exception to the knock-and-announce rule.

3. Knock-and-Announce Within theConstitutional Framework

Prior to 1993, the United StatesSupreme Court had not directlyaddressed whether the knock-and-announce rule had a Fourth Amendmentbasis. In Wilson v. Arkansas,I the Courtgranted certiorari to resolve lower courtconflicts over whether the knock-and-announce principle was a part of theFourth Amendment reasonablenessdetermination. After examining thecommon law protections againstunreasonable searches and seizures atthe time the Constitution was written,the Court held that there was "no doubt"that the reasonableness of a searchdepends on the manner of entry.

The Court did not abolish theestablished exceptions to the knock-and-announce rule, however. Officersmay still legally violate the knock-and-announce rule if exigent circumstancesexist. Further, the Court left the questionof what would constitute reasonableunannounced entry to the lower courts.The Wilson Court did not address theissue of whether the independent sourceor inevitable discovery doctrines shouldapply to prevent exclusion of evidenceafter a knock-andannounce violationbecause the issue was not raised in thelower court and the Court had notgranted certiorari on the issue.

Copyright C 2000 Wayne StateUniversity; Robin L. Gentry

514 U.S. 927 (1995).

300

02-9410 Crawford v. Washington

Ruling Below: (Wash., 147 Wash. 2d 424, 54 P.3d 656)

Sixth Amendment's confrontation clause was not violated by admission of pretrial, tape-recordedstatement of defendant's wife who, because defendant invoked marital privilege, was notavailable to testify, who was present during defendant's assault of third party, was arrested, andarguably has motive to shift blame from herself, and whose self-inculpatory statement wasadmissible hearsay because its failure to state clearly that defendant acted in self-defense wasvirtually identical to defendant's pretrial statement and thus "interlocks" with it, rendering wife'sstatement reliable.

Question Presented: (1) Does Sixth Amendment's confrontation clause permit admissionagainst criminal defendant of custodial statement of potential accomplice on ground that parts ofstatement "interlock" with defendant's custodial statement? (2) Should this court re-evaluateconfrontation clause framework established in Ohio v. Roberts, 448 U.S. 56 (1980), and hold thatclause unequivocally prohibits admission of out-of-court statements insofar as they are containedin "testimonial" materials, such as tape-recorded custodial statements'?

STATE of Washington, Petitioner,V.

Michael D. CRAWFORD, Respondent.

Supreme Court of Washington,En Banc

Decided September 26, 2002.


BRIDGE, J.

This case presents two issues: (1) whether adefendant waives an objection under theconfrontation clause to the admission of hiswife's hearsay statements by exercising hismarital privilege to prevent his spouse fromtestifying; and (2) whether the wife'sstatements are otherwise admissible as anexception to the hearsay rule or as aninterlocking confession. We hold that adefendant does not waive his confrontationrights when he invokes the marital privilege.We also conclude that the statements here

are admissible because the wife's statementsinterlock with those of her husband andhence provide adequate indicia of reliabilityto satisfy confrontation clause concerns.

FACTS

On August 5, 1999, Michael Crawfordstabbed Richard Rubin Kenneth Lee at Lee'sapartment. State v. Crawford, noted at 107Wash.App. 1025, 2001 WL 850119, at *1(2001). Police arrested Crawford thatevening and they collected two tapedstatements from both Crawford and his wife,Sylvia, who had been present at the time ofthe assault. Id. The first statementscontained roughly the same account of the

301

attack: the three had collected at Lee'shouse; Crawford left to buy alcohol; whenhe returned, Lee was making sexualadvances toward Sylvia; Crawford stabbedLee twice. Id.

Several hours after police taped the firststatements, they again questioned theCrawfords independently regarding theevents of August 5. Id. Their stories wereagain similar to each other, but distinctlydifferent from the earlier version of theencounter. Id. This time the Crawfords eachrevealed that the alleged sexual assault hadactually occurred several weeks earlier. Id.On the night in question, both Crawfordscontended, Michael became angry when Leewas mentioned and he and his wife left tofind Lee. Id. Sylvia directed her husband toLee's apartment and after talking with himfor a short period, Crawford stabbed Leetwice. Id. Although unclear, the maindistinguishing factor in these secondstatements was that Crawford alluded thatLee may have had something in his handwhen Crawford stabbed Lee, while Sylviaimplied that Lee may have grabbed forsomething after Crawford stabbed Lee. Id.

Crawford was charged with attempted firstdegree murder while armed with a deadlyweapon and first degree assault while armedwith a deadly weapon. Clerk's Papers (CP)at 2. At trial, Crawford claimed that he actedin self-defense and he invoked the maritalprivilege to prevent his wife from testifyingagainst him. Report of Proceedings (RP) at7-8. The trial court admitted both of Sylvia'sstatements on the grounds that thestatements would not violate the maritalprivilege and because the court determinedthat the statements were sufficiently reliableto alleviate confrontation clause concerns.RP at 45, 53; RP at 219-21, Exs. 37, 38; RPat 231, Exs. 41-42. A jury subsequentlyconvicted Crawford of first degree assault

while armed with a deadly weapon. CP at 2.

In an unpublished opinion, a divided Court

of Appeals concluded that Crawford did not

waive his right to confrontation when he

invoked the marital privilege. Crawford,2001 WL 850119, at *1. It then held thatadmitting Sylvia's second statement wasreversible error because her statement didnot possess adequate indicia of reliability,nor did it interlock with Michael's secondstatement. Id. at *5-7. Accordingly, theCourt of Appeals reversed Crawford'sconviction. Id. at *1. We granted review.

WAIVER OF RIGHT TOCONFRONTATION

Crawford invoked the marital privilege,RCW 5.60.060, to keep his wife fromtestifying against him at trial. RP at 7. Themarital privilege in Washington states inrelevant part:

A husband shall not be examined for oragainst his wife, without the consent of thewife, nor a wife for or against her husbandwithout the consent of the husband; norcan either during marriage or afterward, bewithout the consent of the other, examinedas to any communication made by one tothe other during marriage.

RCW 5.60.060(1). Neither Crawford nor theState called Sylvia to testify. See RP at 7-14.Crawford claims, however, that hisconfrontation right under the SixthAmendment, as applied to the states throughthe due process clause of the FourteenthAmendment, was violated when Sylvia'shearsay statements to the police wereadmitted at trial.

The State contends that Crawford waived hisright to confrontation when he neglected tocall Sylvia at trial, relying on State v.Salazar, 59 Wash.App. 202, 796 P.2d 773

302

(1990) and In re Personal Restraint ofSauve, 103 Wash.2d 322, 692 P.2d 818(1985), to support its position. Whileinstructive, both Salazar and Sauve containa key distinction from the case before us,making them distinguishable. In those casesthe witness was "available"; SylviaCrawford was not an available witness.

In Salazar, the defense counsel did not callan informant suggesting that defense wasunable to locate him. 59 Wash.App. at 216,796 P.2d 773. Rejecting the assertion thatthe witness was unavailable, the court stated,"We have held that a defendant who fails tocall an available hearsay declarant waives anobjection under the confrontation clause toadmission of the hearsay." Salazar, 59Wash.App. at 217, 796 P.2d 773 (citingState v. Borland, 57 Wash.App. 7, 12, 786P.2d 810 (1990)). "Similarly, defensecounsel's failure to call [the informant], whowe assume was available absent persuasiveevidence to the contrary, waived anyconfrontation clause objection." Id.

In Sauve, the defendant claimed that hisconfrontation right was violated when thepolice officer who received an informant'stip, failed to testify at the suppressionhearing. 103 Wash.2d at 329, 692 P.2d 818.Although the court did not directly hold thatSauve had waived his confrontation right, itdid note that the defendant's failure toexercise his rights at trial did not constitute adenial of such rights by the court. Sauve,103 Wash.2d at 330, 692 P.2d 818 (citingState v. Murphy, 35 Wash.App. 658, 669P.2d 891 (1983); State v. Whittington, 27Wash.App. 422, 618 P.2d 121 (1980)).Accordingly, the court stated,

There is no evidence that petitioner askedthe State for the testimony of the officerwho received the tip, nor did petitionerhimself attempt to call the officer to the

stand. The State was not given a chance attrial to either present the officer'stestimony or prove his unavailability. Thefailure of petitioner to exercise his rights attrial does not constitute a denial of suchrights.

Id.

In both Salazar and Sauve the witnesseswere available, but the defense failed to callthem at trial. In the case presented, incontrast, the witness, Sylvia Crawford, wasunavailable to testify because MichaelCrawford had invoked his marital privilege.The marital privilege explicitly states that"[a] husband shall not be examined for oragainst his wife, without the consent of thewife, nor a wife for or against her husbandwithout the consent of the husband." RCW5.60.060(1). This language specificallydenies Sylvia the ability to testify either foror against her husband, rendering herunavailable as a witness. Although Michael,not Sylvia, invoked the privilege, the resultis the same - Sylvia was unavailable totestify, unlike the witnesses in Salazar andSauve. Therefore, the situation before us isdistinct from Salazar and Sauve and it doesnot logically follow that Crawford waivedhis confrontation rights by not calling hiswife to testify.

The conclusion that Crawford did not waivehis confrontation rights is supported by adecision from this court that directlyaddressed the issue of marital privilege andextrajudicial statements by a third party. SeeState v. Burden, 120 Wash.2d 371, 374, 841P.2d 758 (1992). In Burden, this courtstated, "Here, the defendant assertsadmission of Mary Burden's extrajudicialstatements by third persons would indirectlyviolate the testimonial privilege and place[the defendant] in the position of having towaive the privilege to refute the testimony

303

or allow the testimony without crossexamination. We have previously rejectedthis argument." Id. (citing State v. Kosanke,23 Wash.2d 211, 160 P.2d 541 (1945)). Byrecognizing the rejection of this argument,this court implied that the testimonialprivilege is not violated by admissiblehearsay statements and, furthermore, that thedefendant does not have to waive the maritalprivilege to refute the testimony. Therefore,the defendant cannot be said to have waivedhis right to cross examination.

Further, courts are hesitant to accept waiverof a defendant's Sixth Amendment rightsbecause of their significance in the trialprocess. See generally John R. Kroger, TheConfrontation Waiver Rule, 76 B.U. L.REV.835 (1996). "'There are few subjects,perhaps, upon which [the Supreme Court]and other courts have been more nearlyunanimous than in their expressions of beliefthat the right of confrontation and cross-examination is an essential and fundamentalrequirement for the kind of fair trial which isthis country's constitutional goal."' Id at 840(quoting Pointer v. Texas, 380 U.S. 400,405, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965)).Where a waiver has been recognized, thewaiver usually occurs when the defendanthas inappropriately caused the witness'sunavailability. Id. at 844. Thus, "'adefendant may waive the right to confrontwitnesses against him when his ownmisconduct is responsible for a witness'sunavailability at trial."' Id. at 842 (quotingUnited States v. Potamitis, 739 F.2d 784,788 (2d Cir.1984)). Misconduct is notapparent when a defendant invokes astatutory privilege, however. See UnitedStates v. Barlow, 693 F.2d 954, 962 (6thCir.1982) (suggesting that only shammarriage would result in waiver, butadmitting legitimate spouse's grand jurytestimony when it met adequate guaranteesof trustworthiness). In the case before us

Crawford invoked a recognized statutoryprivilege.'

As the Court of Appeals acknowledged here,forcing the defendant to choose between themarital privilege and confronting his spousepresents an untenable Hobson's choice.Crawford, 2001 WL 850119, at *1. TheCourt of Appeals aptly noted that this courttraditionally has "not required a defendant towaive one right to preserve another." Id.(citing State v. Michielli, 132 Wash.2d 229,246, 937 P.2d 587 (1997) (upholdingdismissal of case where defendant wasforced to choose between waiving right tospeedy trial or right to effective assistance ofcounsel); State v. Price, 94 Wash.2d 810,814, 620 P.2d 994 (1980) (stating thatforcing defendant to choose betweeneffective assistance of counsel and speedytrial impermissibly prejudices defendant)).Both Michielli and Price present situationswhere a defendant was forced to balance histrial rights and ultimately select one right tothe exclusion of the other. To force adefendant to choose the more difficultposition of confronting his spouse on thestand, or to assume that he has waived hisconfrontation right by electing not to call hiswife, presents a similarly untenable choiceand undermines the marital privilege itself.Therefore, we hold that Crawford did notwaive his right to confrontation when he

Although no formula has emerged for application ofthe confrontation waiver rule, case law suggests sixmajor legal issues that courts will resolve beforeapplying the doctrine: "(1) witness unavailability, (2)cause of unavailability, (3) intent, (4) standard ofproof, (5) statement reliability, and (6) waiverhearing procedure." Kroger, supra, at 846. The keyelement for this case is the cause of theunavailability. "Two paradigmatic ways in which adefendant satisfies the causation requirement haveevolved: murder and threats." Id. at 849. From thisstatement it is apparent that the evolution of thewaiver doctrine has not been directed at thelegitimate invocation of statutory privileges, absentthreat or other indication of malfeasance.

304

invoked the marital privilege.

ADMISSIBILITY OF HEARSAY

If Crawford did not waive his right toconfrontation, the State contends in thealternative that Sylvia's out-of-courtstatements to the police were admissiblehearsay that did not violate the SixthAmendment.

This court has noted a distinction betweenin-court testimony and extrajudicialstatements by a spouse. In drawing adistinction between the two, we haveconcluded that hearsay statements may beadmissible under certain circumstances.Burden, 120 Wash.2d at 377, 841 P.2d 758.Forcing a spouse to testify, however,challenges the policy purposes behind theprivilege. In Burden, this court determinedthat the policy purposes - fostering domesticharmony and preventing discord, reflectingthe natural repugnance of having one spousetestify against the other, and preventing thetestifying spouse from having to choosebetween perjury, contempt of court, orjeopardizing the marriage - supported thisdistinction. Id. at 375, 841 P.2d 758 (citingState v. Thorne, 43 Wash.2d 47, 55, 260P.2d 331 (1953); State v. Wood, 52Wash.App. 159, 163, 758 P.2d 530 (1988);Teresa Virginia Bigelow, Comment, TheMarital Privileges in Washington Law:Spouse Testimony and MaritalCommunications, 54 WASH. L.REV. 65, 70(1978-79)). We concluded that the latter twopurposes would not be affected by allowingthird person testimony, because the spousewould not be testifying in court, andquestioned the applicability of the firstpurpose. Burden, 120 Wash.2d at 375-76,841 P.2d 758. Thus, as we haveacknowledged, confronting a spouse on thestand is quite distinct from admitting anextrajudicial statement.

To assess whether an extrajudicial hearsaystatement is admissible we apply amultilayered analysis, in consideration of thevaluable constitutional protections affordedby the Sixth Amendment. Simply because astatement falls within a hearsay exceptiondoes not mean that it will satisfy the SixthAmendment. State v. Rice, 120 Wash.2d549, 565, 844 P.2d 416 (1993). Therefore,the court will employ specific safeguards"'to ensure that the proffered evidence offerssome reliability in terms of the declarant'sperception, memory and credibility-afunction traditionally performed by crossexamination."' Id at 566, 844 P.2d 416(quoting State v. Anderson, 107 Wash.2d745, 750-51, 733 P.2d 517 (1987)).

First, the statements must be admissibleunder the rules of evidence. Rice, 120Wash.2d at 564, 844 P.2d 416. Second, thestatements must contain a sufficient indiciaof reliability and trustworthiness to satisfythe requirements of the confrontation clause.Id. A firmly rooted exception to the hearsayrule will satisfy this requirement. State v.Davis, 141 Wash.2d 798, 845, 10 P.3d 977(2000). If the exception is not firmly rooted,then the court will consider ninenonexclusive factors to determine therelative reliability of the hearsaystatements.2 Rice, 120 Wash.2d at 565-66,

2 The nine factors include: (1) whether the declarant,at the time of making the statement, had an apparentmotive to lie; (2) whether the declarant's generalcharacter suggests trustworthiness; (3) whether morethan one person heard the statement; (4) thespontaneity of the statement; (5) whethertrustworthiness is suggested from the timing of thestatement and the relationship between the declarantand the witness; (6) whether the statement containsexpress assertions of past fact; (7) whether thedeclarant's lack of knowledge could be established bycross- examination; (8) the remoteness of thepossibility that the declarant's recollection is faulty;and (9) whether the surrounding circumstancessuggest that the declarant misrepresented thedefendant's involvement.

305

844 P.2d 416; State v. Whelchel, 115Wash.2d 708, 722-25, 801 P.2d 948 (1990).Alternatively, the indicia of reliability testcan be met if the statements "interlock" inaccordance with our decision in Rice. 120Wash.2d at 569-70, 844 P.2d 416.

Sylvia's first statement to the police is nothearsay because it was not offered to provethe truth of the matter asserted.3 ER 801(c).Instead, as the Court of Appeals noted, itwas offered to demonstrate that theCrawfords lied about the circumstancespreceding the assault. Crawford, 2001 WL850119, at *5. Considering that out-of-courtstatements raise hearsay and confrontationclause objections only when they are offeredto prove the truth of the matter asserted,Sylvia's first statement is not inherentlyobjectionable. State v. Parris, 98 Wash.2d140, 145, 654 P.2d 77 (1982). It will beadmissible, however, only if it is relevantunder ER 401, and it is relevant only if hersecond statement is admitted.

Sylvia's second statement is hearsay: Thedeclarant is unavailable at trial-becauseCrawford invoked the marital privilege-and the statement is being offered to provethe truth of the matter asserted. ER 801(c).The State contends that Sylvia's secondstatement is admissible under ER 804(b)(3),the hearsay exception for a declarant'sstatement against penal interest. A statementagainst penal interest is not considered afirmly rooted exception to the hearsay rule,however. Whelchel, 115 Wash.2d at 715,801 P.2d 948. Therefore, "out-of-courtstatements from a nontestifying codefendantmade against penal interests and which

The defense counsel did not object to the admissionof the statements as hearsay when they werepresented at trial. See RP at 219- 32. Defenseargument appears to hinge on the previous invocationof the marital privilege and right to confrontation. SeeRP at 7-21, 37.

inculpate the defendant are admissibleagainst the defendant only when they bearadequate indicia of reliability." State v. St.Pierre, 111 Wash.2d 105, 113, 759 P.2d 383(1988) (citing Anderson, 107 Wash.2d at

750, 733 P.2d 517; State v. Dictado, 102Wash.2d 277, 287-88, 687 P.2d 172 (1984)).Thus, we must determine whether thestatement contains a sufficient indicia ofreliability to satisfy the confrontation clause.See Ohio v. Roberts, 448 U.S. 56, 66, 100S.Ct. 2531, 65 L.Ed.2d 597 (1980).

Before we determine whether the statementis sufficiently reliable to satisfyconfrontation clause concerns, we mustassess which portions of the statement wereactually against Sylvia's penal interest. Onlythe portions of Sylvia's statement that areself-inculpatory will be admitted under thestatement against interest exception to thehearsay rule. See State v. Roberts, 142Wash.2d 471, 491-97, 14 P.3d 713 (2000);ER 804(b)(3). In Roberts this court adoptedthe Supreme Court's rejection of a "wholestatement" approach to defendantdeclarations. 142 Wash.2d at 494, 14 P.3d713 (adopting Williamson v. United States,512 U.S. 594, 114 S.Ct. 2431, 129 L.Ed.2d476 (1994)). Therefore, even though self-exculpatory statements may be includedwithin a statement that is generallyinculpatory, only those portions that areactually self-inculpatory are admissible. Id.at 492-94, 14 P.3d 713.

A statement against interest, or self-inculpatory statement, is defined as:

A statement which was at the time of itsmaking so far contrary to the declarant'specuniary or proprietary interest, or so fartended to subject the declarant to civil orcriminal liability, or to render invalid aclaim by the declarant against another, thata reasonable person in the declarant's

306

position would not have made thestatement unless the person believed it tobe true.

ER 804(b)(3) (emphasis added).

Crawford objected to the admission ofSylvia's statements that he was 'infuriated,"'"'past tipsy,"' and that he said Lee "'deservesa ass whoopin."' Crawford, 2001 WL850119, at *7 n. 3 (Armstrong, C.J.,dissenting). He also objected to theadmission of Sylvia's statement regardingwhether Lee reached for or possessed aweapon when Michael assaulted himbecause it allegedly rebutted his owntestimony and damaged his self- defenseclaim.

While potentially damaging to Michael,these statements are all inculpatory of Sylviaas well. It was Sylvia who showed Michaelwhere to find Lee and she was presentthrough the duration of the violentencounter. She walked away from thestabbing with Michael and did not turn tothe police when she had the opportunity. Asa potential accomplice, therefore, Sylviawould benefit from limiting Michael'sinvolvement; the lesser his charge, the lesserher accomplice liability. Sylvia's statementsthat Michael was "infuriated," "past tipsy,"and that he said Lee "deserves a asswhoopin" would not shift blame from her toMichael, but rather it could increaseMichael's culpability, and potentially hers aswell. Furthermore, if Sylvia knew thatMichael wanted to give Lee an "asswhoopin" and took Michael to find Lee, thisfact could support a charge against Sylviafor accomplice liability because she could beviewed as encouraging or aiding thefacilitation of a crime. See RCW9A.08.020(3)(a). Likewise, Sylvia'sassertion that Lee may have reached into hispocket, possibly for a weapon, but had

empty hands when Michael stabbed him,would be against her interest. Rather, shewould benefit her own case if she had saidthat Lee wielded a weapon throughout theconfrontation and that Michael was merelyprotecting himself. Therefore, we concludethat these statements were self-inculpatoryand admissible hearsay, provided they meeta sufficient indicia of reliability.

Because a codefendant's confession ispresumed unreliable,4 the statement musteither meet a firmly rooted exception to thehearsay rule5 or provide some indicia ofreliability, such as interlocking with thedefendant's own confession. St. Pierre, 111Wash.2d at 112-13, 759 P.2d 383. The Stateasserts that Sylvia's second statement isadmissible as an interlocking confessionwith Michael's second statement. Seegenerally Rice, 120 Wash.2d 549, 844 P.2d416 (adopting Lee v. Illinois, 476 U.S. 530,106 S.Ct. 2056, 90 L.Ed.2d 514 (1986)). Asthis court recognized in Rice, "[w]hen acodefendant's confession is virtuallyidentical [i.e., interlocks] to that of adefendant, it may be deemed reliable." Id. at570, 844 P.2d 416 (citing Lee, 476 U.S. 530,106 S.Ct. 2056, 90 L.Ed.2d 514). Hence aninterlocking confession will serve the samepurpose as the nine-factor test in assessingreliability. Id.

The Court of Appeals here held that,although the Crawfords' statements were''very similar," they differed regarding

4 Although Sylvia is not a codefendant, as she has notbeen formally charged with a crime, her role issimilar to that of a codefendant. She was presentduring the assault, was arrested and gave a statementto the police concerning the events, and had anarguable motive to shift the blame away from herself.Her role in this case thus suggests applying the Riceinterlocking confession analysis by analogy.

As previously noted, a statement against penalinterest is not a firmly rooted hearsay exception forpurposes of the confrontation clause.

307

whether Lee was armed when Michaelstabbed him. Crawford, 2001 WL 850119,at *6. Following are the two statements forcomparison.

Sylvia's statement:

Q: did Kenny do anything to fight backfrom this assaultA: (pausing) I know he reached into hispocket ... or somethin' ... I don't know

whatQ: after he was stabbedA: he saw Michael coming up. He liftedhis hand ... his chest open, he might ofwent to go strike his hand out orsomething and then (inaudible)Q: okay, you, you gotta speak upA: okay, he lifted his hand over his headmaybe to strike Michael's hand down orsomething and then he put his hands in his... put his right hand in his right pocket ...took a step back ... Michael proceeded tostab him ... then his hands were like ...how do you explain this ... open arms ...with his hands open and he fell down ...and we ran (describing subject holdinghands open, palms toward assailant)Q: okay, when he's standing there with hisopen hands you're talking about Kenny,correctA: yeah, after, after the fact, yesQ: did you see anything in his hands atthat pointA: (pausing) um um (no)

Ex. 42, at 6-7.

Michael's statement:

Q: okay. Did you ever see anything in[Lee's] handsA: I think so, but I'm not positiveQ: okay, when you think so, what do youmean by thatA: I coulda swore I seen him goin' for

somethin' before, right before everythinghappened. He was like reachin', fiddlin'around down here and stuff ... and I just ...

I don't know, I think, this is just a

possibility, but I think, I think that hepulled somethin' out and I grabbed for itand that's how I got cut ... but I'm not

positive. 1, I my mind goes blank whenthings like this happen. I mean, I just, Iremember things wrong, I rememberthings that just doesn't, don't make sense tome later.

Ex. 44, at 7.

Although the Court of Appeals concludedthat the statements were contradictory, uponcloser inspection they appear to overlap. TheCourt of Appeals stated that Sylvia's versionof the story had Lee grabbing for somethingonly after he had been stabbed, whileMichael stated that Lee may have hadsomething in his hand before the attack.Crawford, 2001 WL 850119, at *6.However, when asked whether Lee foughtback from the assault, Sylvia states that Lee"lifted his hand over his head maybe tostrike Michael's hand down or somethingand then he put his hands in his ... put hisright hand in his right pocket ... took a stepback ... Michael proceeded to stab him...."Ex. 42, at 7. She also previously stated thatshe was unsure how Michael received thecut on his hand. Id. at 6. Thus, it is unclearfrom Sylvia's statement when, if ever, Leepossessed a weapon.Michael's statement is equally ambiguous.He states, "I coulda swore I seen him goin'for somethin' before, right before everythinghappened. He was like reachin', fiddlin'around down here and stuff ... and I just ... Idon't know, I think, this is just a possibility,but I think, I think that he pulled somethin'out and I grabbed for it and that's how I gotcut ... but I'm not positive." Ex. 44, at 7.Thus, both of the Crawfords' statements

308

indicate that Lee was possibly grabbing for a We reverse the Court of Appeals andweapon, but they are equally unsure when reinstate the conviction.this event may have taken place. They arealso equally unsure how Michael received ALEXANDER, C.J., SMITH, JOHNSON,the cut on his hand, leading the court to MADSEN, SANDERS, IRELAND,question when, if ever, Lee possessed a CHAMBERS and OWENS, JJ., concur.weapon. In this respect they overlap.

Self-defense is at issue in this case, soadmittedly the timing of Lee's possession ofa weapon is significant. However, both ofthe Crawfords' statements are ambiguous asto whether Lee ever actually possessed aweapon. The interlocking confession rule isdesigned to admit "virtually identical"statements. Rice, 120 Wash.2d at 570, 844P.2d 416. As the dissent from the Court ofAppeals noted, and we agree, "neitherMichael nor Sylvia clearly stated that Leehad a weapon in hand from which Michaelwas simply defending himself. And it is thisomission by both that interlocks thestatements and makes Sylvia's statementreliable." Crawford, 2001 WL 850119, at *7 (Armstrong, C.J., dissenting). BecauseSylvia's and Michael's statements arevirtually identical, admission of Sylvia'sstatement satisfies the requirement ofreliability under the confrontation clause.

CONCLUSION

We hold that a defendant does not waive hisSixth Amendment right to confront anadverse witness when he invokes the maritalprivilege to keep his wife from testifying attrial. Thus, Michael Crawford did not waivehis confrontation clause rights when heinvoked RCW 5.60.060 and refused to callhis wife, Sylvia, to testify at his trial.Sylvia's pretrial statements to the police, atissue in this case, were admissible, however,because they were self- inculpatory and theyinterlocked with Michaels' own admissiblestatements.

309

Also This Term:

02-6683 Castro v. United States

Ruling Below: (1 Ith Cir., 290 F.3d 1270, 71 Crim. L. Rep. 249)

When district court sua sponte recharacterizes federal prisoner's post-conviction motion aspetition under 28 U.S.C. § 2255, as amended by Antiterrorism and Effective Death Penalty Act,prisoner's subsequent filing of self-styled Section 2255 petition, raising claim that had beenavailable when prisoner filed initial motion, is "second or successive petition" within purview ofAEDPA amendments that, absent compliance with such amendments, is not entitled toconsideration; in future cases, district court should warn prisoner of consequences ofrecharacterization and provide him with opportunity to amend or dismiss his initial filing.

Question Presented: When district court recharacterizes pro se federal prisoner's first post-conviction motion as habeas petition under 28 U.S.C. § 2255, does such recharacterizationrender prisoner's subsequent attempt to file first titled Section 2255 petition "second orsuccessive petition" within purview of AEDPA? (2) Does U.S. Supreme Court have jurisdictionto review I Ith Circuit's decision affirming dismissal of Section 2255 petition for writ of habeascorpus as second or successive?

02-8286 Banks v. Cockrell

Ruling Below: (5th Cir., 8/20/02, unpublished)

In federal habeas corpus proceeding held prior to effective date of Antiterrorism and EffectiveDeath Penalty Act, district court erroneously granted relief under Brady v. Maryland, 373 U.S.83 (1963), with respect to sentencing phase for state's failure to disclose that penalty phasewitness was paid police informant, because petitioner, by limiting his request for investigativeassistance to different witness and by failing to even attempt to speak with alleged informant,unjustifiably failed to develop this issue factually in state court and, therefore, was not entitled toevidentiary hearing at which evidence on which his Brady claim relies was adduced; even thoughalleged paid informant admitted his status as such in affidavits presented to federal district courtand deputy sheriffs testimony confirmed that status, such evidence was not exhausted in statecourt, petitioner having merely alleged in his third state habeas proceeding that witness was paidinformant without having attempted to locate witness and ascertain his true status, and withouthaving attempted to interview investigating officers, and thus petitioner cannot establish Bradyclaim; assuming that merits of Brady claim are before court, that state withheld evidence thatwitness was paid police informant, and that evidence would have been favorable to petitioner inattacking witness's testimony, witness's status as paid informant was not material to jury'spenalty phase finding because, given that much of witness's penalty phase testimony wascorroborated, even by petitioner, and that witness had already been impeached on three otherbases, there is no reasonable probability that jury, had it been informed of informant's paidstatus, would not have imposed death penalty; petitioner's claim that during penalty phase hereceived ineffective assistance of counsel is also meritless because, even assuming that counsel's

310

performance was deficient, petitioner has not shown prejudice from any aspect of suchperformance: federal evidentiary hearing is not trial for purposes of Fed.R.Civ.P. 15(b), whichprovides that "[w]hen issues not raised by the pleadings are tried by express or implied consentof the parties, they shall be treated in all respects as if they had been raised in the pleadings," andthus district court properly refused to consider petitioner's contention that his Brady claimencompassed transcript that was not raised in his habeas petition and that petitioner never soughtto add to his petition by amendment but that had been introduced at federal hearing to establishBrady claim.

Question Presented: (1) Did Fifth Circuit commit legal error in rejecting petitioner's claimunder Brady v. Maryland, 373 U.S. 83 (1963)--that prosecution suppressed material witnessimpeachment evidence that prejudiced him in penalty phase of trial--on grounds that (a) evidencesupporting claim was procedurally defaulted, notwithstanding fact that, as in Strickler v. Greene,527 U.S. 263, 67 U.S.L.W. 4477 (1999), there was no reasonable basis for concluding thatcounsel for petitioner could have discovered suppressed evidence prior to or during trial or statepost-conviction proceedings, and (b) suppressed evidence was immaterial to petitioner's deathsentence, when panel neglected to consider that trial prosecutors viewed evidence to be of"utmost importance" to showing that capital sentence was appropriate? (2) Did Fifth Circuit actcontrary to Strickland v. Washington, 466 U.S. 668 (1984), and Williams v. Taylor, 529 U.S.362, 68 U.S.L.W. 4263 (2000), when it weighed each item of mitigating evidence separately andconcluded that no single category would have brought about different result at sentencingwithout weighing impact of evidence collectively'? (3) Did Fifth Circuit act contrary to Hams v.Nelson, 394 U.S. 286 (1969), and Withrow v. Williams, 507 U.S. 680 (1993), in holding thatFed.R.Civ.P. 15(b) does not apply to habeas corpus proceedings because "evidentiary hearings"in those proceedings are not similar to civil "trials"?

02-964 Baldwin v. Reese

Ruling Below: (9th Cir., 282 F.3d 1184, 71 Crim. L. Rep. 12)

Even though habeas corpus petitioner's petition for discretionary review by state's highest courtdid not specify federal nature of claim he now seeks to assert in federal court, claim was "fairlypresented" to state court, within meaning of U.S. Supreme Court precedents on exhaustion ofremedies, by way of decision of state intermediate court, which, when read by state supremecourt, would have alerted it that claim of ineffective assistance of appellate counsel was decidedon basis of federal law.

Question Presented: Does state prisoner "alert" state's highest court that he is raising federalclaim, as required by doctrine of exhaustion of remedies, when--in that court--he neither citesspecific provision of federal constitution nor cites at least one authority that has decided claim onfederal basis?

311

section 6: criminal procedure

Documents