In the unpublished Second District Court of Appeal (Div. 4) decision of People v. Rivera (Aug. 19, 2022) 2022 Cal. App. Unpub. LEXIS 5130—a double homicide case—the Court rejected the defendant gangster Miguel Rivera’s objections to the admissibility of some incriminating statements he made during what the Court referred to as a “Perkins operation.” (A “Perkins operation” [citing Illinois v. Perkins (1990) 496 U.S. 292.], is where an undercover operative is put into a defendant’s jail cell [pre-filing of a complaint] for the purpose of encouraging the defendant to make incriminating statements. In the Rivera case, after the in-custody defendant Rivera initially waived his Miranda rights (per Miranda v. Arizona (1966) 384 U.S. 436.), he later—mid-interrogation—invoked his rights to counsel and to remain silent. His interrogators, however, purposely ignored his invocation and questioned him for an additional 19 minutes. The officers’ admitted purpose for ignoring Rivera’s attempt to invoke was so that they could get some statements out of him that they could feed to an undercover agent who they intended to insert into his jail cell to see what he might say in response; i.e., a “Perkins operation.” Rivera fell for this tactic, hook, line, and sinker, eventually admitting to his supposed cellmate that he committed both murders. Those statements were introduced into evidence against him at his later trial. On appeal from his conviction, the Court of Appeal upheld this tactic despite the defendant’s earlier invocation, citing People v. Orozco (2019) 32 Cal.App.5th 802 (where it was ruled that there is no “interrogation” when the defendant is unaware that he is talking to a police agent). More important to this discussion, the Appellate Court held that even if it was error to admit into evidence his inculpatory statements made to the undercover agent, it was “harmless error,” given the volume of other evidence of Rivera’s guilt. His murder convictions were therefore upheld (with the Court reversing only on some gang-allegation and sentencing issues). Rivera’s petition for review to the California Supreme Court was denied, as reported at People v. Rivera (Dec. 21, 2022) 2022 Cal. LEXIS 7758. But in so doing, Associate Justice Joshua P. Groban, with Associate Justices Goodwin Liu and Martin Jenkins agreeing, wrote a “concurring statement” (concurring in the denial of the defendant’s petition) expressing some serious concerns about the officers’ tactic of continuing the questioning in the face of a Miranda invocation. In an unmistakable criticism of the officers’ tactics, Justice Groban wrote:
“The protection afforded by Miranda is clear: ‘If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.’ (Miranda, supra, 384 U.S. at p. 474.) Here, the interrogation did not cease. To the contrary, law enforcement deliberately interrogated Rivera after he invoked his right to counsel. The officer knew that continued interrogation violated Miranda and that the statements would not be admissible at trial, but he kept questioning Rivera anyway. I therefore have serious doubts as to whether the procedure employed here is lawful.”
The only reason Justices Groban, Liu, and Jenkins went alone with denying Rivera’s petition for review was that the Court of Appeal had held that any error was harmless and he would have been convicted anyway. But the message here is clear: It’s improper, if not “illegal,” to purposely violate Miranda. Some Miranda “experts” have taught for years that it is okay to purposely violate the Miranda rules, typically done for the purpose of obtaining impeachment evidence. Indeed, statements obtained outside of Miranda do in fact provide the prosecution with some powerful trial evidence, tying a defendant to an often implausible story that, although inadmissible in the People case-in-chief, is available for impeachment purposes should the defendant choose to testify. The California Supreme Court, however, has criticized this practice for some time, warning us that if officers keep pushing that envelope, sanctions may someday be imposed. For instance, in People v. Nguyen (2015) 61 Cal.4th 1015, at pgs. 1075-1077, California’s High Court held: “(I)t is indeed police misconduct to interrogate a suspect in custody who has invoked the right to counsel,” quoting People v. Peevy (1998) 17 Cal.4th 1184, at pg. 1205, and reaffirming “that principle” while warning that if it is found that such a practice becomes widespread or pursuant to an official police department practice, a new exclusionary rule may be developed to resolve the problem. Also, in People v. Johnson (2022) 12 Cal.5th 544, at pg. 567, the California Supreme Court found some law enforcement agencies’ practice of intentionally violating Miranda to be “troubling.” The Johnson Court also noted, in discussing an intentional Miranda violation: “We emphasize the substantial costs to the justice system and the lives affected when law enforcement officials, however well-intentioned, do not conform their own conduct to the law.” (Id., at pg. 583.) And then again, at pg. 598, fn. 4, the Johnson Court reiterated: “No one should take from this opinion the lesson that violations of constitutional rights carry no consequences. Every violation jeopardizes the ability to place before a jury anything a suspect might say, and jeopardizes any conviction that might be obtained if matters that should have been excluded are erroneously admitted.” California’s lower courts tend to be in agreement. For instance, in People v. Orozco (2019) 32 Cal.App.5th 802, at pg. 816, the Second District Court of Appeal (Div. 2), in discussing an intentional Miranda violation, termed “(t)he police conduct in this case (to be) deplorable.” And in In re Gilbert E. (1995) 32 Cal.App.4th 1598, at pg. 1602, the Second District Court of Appeal’s Division 6 noted that: “This is a very troubling case, presenting a deliberate police violation of Miranda . . . .’ [Citation.] The holding of Miranda is not arcane and establishes a ‘bright line’ rule. [Citation.] When the police deliberately step over the line and disobey Supreme Court pronouncements, respect for the rule of law necessarily diminishes. Appellant’s confession should not have been admitted into evidence. Were we to reach a contrary determination, the police could deliberately and successfully ignore the pronouncements of the United States and California Supreme Courts.” And then Division 4 of the same Court of Appeal further noted in People v. Bey (1993) 21 Cal.App.4th 1623, at p. 1628: “This is a very troubling case, presenting a deliberate police violation of Miranda coupled with a misrepresentation to appellant about the legal consequences of that violation.” And while there are no U.S. Supreme Court cases authorizing sanctions for intentional Miranda violations (other than to merely suppress the resulting incriminating statements), the federal Ninth Circuit held in Bradford v. Davis (9th Cir. 2019) 923 F.3rd 599, at pg. 620, held that an intentional Miranda violation is “unethical and . . . strongly disapproved.” Despite all this disapproving language, note that except to suppress a defendant’s Miranda-violation statements in the People’s case-in-chief, the threatened sanctions are not ever likely to occur. That’s because the U.S. Supreme Court has held that the Miranda rule is a “prophylactic” measure only, and not in of and of itself a constitutional violation. (Oregon v. Elstad (1985) 470 U.S. 298, 304; see also People v. Mendez (2019) 7 Cal.5th 680, 698.) With the passage of Proposition 8 in June of 1982, (i.e., California Constitution art. I, section 28(f)(2)), which has been interpreted to say that relevant evidence shall not be excluded in any criminal proceeding or in any trial or hearing of a juvenile for a criminal offense except when required under “federal” search and seizure rules, Fifth Amendment issues, including Miranda’s prophylactic rules, are to be guided by federal principles rather than the stricter California’s constitutional principles. (People v. Crittenden (1994) 9 Cal.4th 83, 124, 129-131.) Therefore, “(u)nder California law, issues relating to the suppression of statements made during a custodial interrogation must be reviewed under federal constitutional standards.” (People v. Sims (1993) 5 Cal.4th 405, 440.) As noted above, such “federal standards” do not allow for the suppression of any evidence despite a Miranda violation except for the defendant’s statements, and then only in the People’s case-in-chief. However, that having been said, I have always felt that California’s law enforcement officers (and prosecutors) should not have to be threatened with an exclusionary rule in order to comply with the U.S. Supreme Court’s dictates. Professional and ethical standards would seem to dictate nothing less. Certainly, in an era when the public in general is more sensitive to law enforcement’s ethical (if not legal) obligations to follow the rules, officers should keep in mind that intentional Miranda violations are no longer (if they ever were) acceptable. As noted above in In re Gilbert E., supra: “When the police deliberately step over the line and disobey Supreme Court pronouncements, respect for the rule of law necessarily diminishes.” Food for thought.