Interrogation Tactics, Attenuation, and the Use of Police Agents
Robert C. Phillips
DDA (Retired)
April, 2018
Sometimes the police are good. Sometimes they are just lucky. A recent California appellate court decision out of division 2 of the Second District Court of Appeal—People v. Orozco[1]—provides us with an excellent example of the latter.
Facts:
In Orozco, the defendant—one Edward Orozco—was suspected of having beaten his six-month old daughter, Mia, to death; an occurrence he vehemently denied. But having been left alone with Mia for several hours, after which she was found to be cold to the touch, with 29 bruises, seven rib fractures, bruised lungs with the right lung punctured, and a lacerated liver,[2] there was no other logical explanation than that Orozco had beaten her to death. Perhaps noting the circumstantial nature of the evidence proving Orozco’s guilt, however, the arresting officers sought to strengthen their case against him with a confession. They therefore set out to get that confession, one way or another.
After voluntarily accompanying the police to the police station, Orozco was interviewed by three officers where he was told that he was not in custody and that he was free to leave. Nonetheless, the officers read Orozco his Miranda[3] rights which he indicated he understood.[4]
Claiming that he merely gave Mia some “baby Motrin” because she had been crying, and then putting her into her crib, Orozco denied doing anything to hurt her. He also claimed he did not notice she wasn’t breathing until checking her later. He had no explanation for Mia’s injuries. Not believing Orozco’s plea that he “would never hurt (his) daughter,” the officers pressed for an explanation.[5]
Asked if he would submit to a polygraph test, Orozco responded by asking; “Can I have an attorney?” The officer responded: “Sure you can have an attorney.” But instead of ending the interview, the officers proceeded to ask him at least four times: “Why would you need an attorney”? In the midst of the continued questioning, Orozco requested an attorney four more times, all the while maintaining that he had not hurt Mia and that he was telling the truth.[6]
Finally giving up, the officers formally arrested Orozco for Mia’s murder. Upon doing so, however, one of the officers told him: “(Y)ou ask for your attorney . . . but we’re asking for your honesty.” Giving it one more shot, the officer then told Orozco: “If you're willing to talk to us right now . . . (w)ithout your attorney present . . . and (to) explain what happened(,) I’m not going to take you to jail.” Not fooled, Orozco repeated his request for an attorney. The frustrated officer responded: “All right. Go to jail. Done.”[7]
At this point the interview finally ended without any incriminating statements from Orozco. But the officers were not done yet. Several hours later, the police put Orozco into an interview room with his live-in girlfriend, Nathaly Martinez, who was also Mia’s mother. Although it is not clear who (Martinez or the officers) suggested that the two be allowed to talk together, there was testimony to the effect that one of the officers told Martinez that maybe she could get a full explanation out of Orozco as to what had happened to Mia. But otherwise, even though Martinez later testified that she felt like she had to report back to the police, she was not told what to ask or what particular information she should try to elicit from Orozco.[8]
With the two of them alone together in an interview room, and with a tape recorder surreptitiously recording their conversation, Martinez asked Orozco what had happened to their daughter. He gave her the same explanation that he had previously given to the police, denying that he had done anything to hurt their daugther.[9]
Perhaps intending to jumpstart the conversation a bit, one of the officers eventually entered the interview room and told the couple that the autopsy report had come back indicating that Mia “died at the hands of another,” and that she did not suffocate but rather had been beaten. The officer then told Orozco in Martinez’s presence: “(Y)ou were the last one with your daughter and there’s (no) doubt (about) it. She suffered major injuries. This may be the last time you guys get to talk to each other in person, okay?” The officer then added that “right now both of you are looking at going to jail for child neglect; causing the death of that baby.” He then asked: “Did either of you have anything you want to say to me?” Martinez said, “No.” Orozco was silent.[10]
Left alone again with Orozco, Martinez asked him one more time what had happened? Orozco responded only by telling her that he did not want her to be arrested. But then the same officer returned and interrupted then again, asking Martinez to step outside with him. Asking her if she would take a polygraph test (her response was not given), he told her that Orozco had refused to do so, inferring, perhaps, that he was lying. He then put Martinez back into the interview room and listened to how the two would process this information.[11]
Sure enough, Martinez asked Orozco why he didn’t want to take a lie detector test, reminding him that she was Mia’s mother and that she needed to know what had happened to her. Upon Martinez adding: “If you love me, you need to tell me the truth,” a sobbing Orozco eventually broke down and admitted to having beaten Mia.[12]
Charged in state court with murder and assault on a child causing death,[13] Orozco’s motion to suppress his tape-recorded confession as made to Martinez was denied. With this being admitted into evidence, he was convicted by a jury and sentenced to prison for 25-years-to-life. Edward Orozco appealed.
The issue on appeal was whether the trial court had erroneously admitted into evidence Orozco’s incriminating statements he made to Martinez. Specifically, Orozco argued that the use of his confession violated both his Miranda rights as well as his rights under the Fourteenth Amendment “due process” clause.
Miranda:
The so-called “Miranda Rule”—dictating that a criminal suspect cannot be questioned until he has been advised of his self-incrimination and attorney rights and then, understanding those rights, agrees (either expressly or implicitly) to waive those rights and answer questions—is limited to those situations where the suspect is both in custody and is interrogated by law enforcement or its agents. Orozco in this case was assumed to be in custody despite being told at the initiation of his interrogation that he was not; i.e., that he was not under arrest and was free to leave;[14] an issue not discussed by the Court. The sole issue, therefore, was whether, at the point in time when he finally confessed, he was being “interrogated,” as this term is defined by the courts.[15]
The whole purpose of the Miranda rule is to offset the psychological pressures inherent in an incommunicado interrogation.[16] It is also a rule, as announced by the U.S. Supreme Court in the landmark case decision of Edwards v. Arizona, [17] that once an in-custody suspect clearly and unequivocally invokes his right to the assistance of counsel under Miranda, the questioning must cease until he or she is either released or counsel is provided.
In this case, it was conceded that Orozco had invoked his right to counsel during his interrogation, and in fact did so repeatedly.[18] The officers thereafter, inappropriately--albeit unsuccessfully—attempted to get him to change his mind. Had he confessed at this point, his confession would have no doubt been ruled to be inadmissible (at least for purposes of the People’s case-in-chief[19]) as a product of this clear Miranda/Edwards violation.
But the questioning was eventually ended without a confession having been obtained. So there was nothing to suppress at this point. Putting Orozco into a room with his girlfriend (i.e., Martinez), however, was held to be a continuation of the questioning, although at this point by an agent (i.e., the girlfriend) of law enforcement.[20]
Although the People argued that Martinez was not a police agent under these circumstances, the trial judge ruled that she was and the Court of Appeal found substantial evidence to support the trial court’s ruling on this issue.[21] But the Court also held that even so, Orozco’s eventual confession to Martinez was properly admitted into evidence. That’s because Orozco did not know that Martinez was a police agent and as such, no “interrogation,” as the term is legally defined, occurred.[22]
For purposes of Miranda, “interrogation” means “express questioning” or “words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response.”[23] Because interrogation “reflect[s] a measure of compulsion above and beyond that inherent in custody itself,”[24] not all statements a defendant makes while in custody are “the product of interrogation.”[25] Whether the police action is “reasonably likely to elicit an incriminating response” is judged by what the suspect perceives, not what the police intend.[26]
Implicit in the definition of “interrogation” is that (1) the suspect is talking to the police or an agent of the police, and (2) the suspect is aware that he is talking to the police or one of their agents.[27] Because talking with one’s girlfriend does not involve the same “inherent coerciveness” of a police-dominated interrogation, the rules of Miranda are inapplicable to such a situation.[28] Therefore not only must Martinez have been a police agent, but Orozco had to have known this fact for her questioning of him to have been deemed an “interrogation,” as the term is defined. Absent a police-dominated interrogation, his incriminating statements to her were not subject to being suppressed.[29]
Orozco further argued, however, that his eventual confession to Martinez, as “the fruit of the poisonous tree,” should have been held to be inadmissible as a product of the earlier Miranda/Edwards violation. The Court disagreed, noting that the officers’ violation of the Miranda rule failed to achieve the results they had hoped for; i.e., a confession. Orozco remained steadfast in his denials of any criminal culpability in his daughter’s death. It wasn’t until sometime later that Orozco finally admitted to Martinez, not knowing that she was acting as a police agent and therefore not under the pressure of a police-dominated interrogation, that he had killed Mia. It was therefore not the Miranda violation that prompted this confession, but rather Martinez imploring him to tell her the truth about what had happened. As such, Orozco’s eventual confession was not the product of (i.e., was attenuated from) the earlier Miranda violation.[30]
Due Process:
Under the Fourteenth Amendment, the government cannot constitutionally deprive a person of his “life, liberty or property” without first according him “due process” of law. This is commonly interpreted to mean that a criminal defendant must be accorded “fundamental fairness.”[31] A violation of one’s due process rights may result in the suppression of any resulting evidence, including an involuntary (i.e., a “coerced”) confession.[32] A confession will be held to be involuntary, and thus subject to suppression, only if official coercion caused the defendant's will to be overborn such that the resulting statement is not the product of “a rational intellect and free will.” The “totality of the circumstances” must be considered.[33]
Orozco argued that his due process rights were violated in this case because the police officers deliberately ignored his repeated requests for counsel during the first interview. Aggravating this clear Miranda/Edwards violation, the police thereafter sent Martinez in to “get the full explanation” from him while highlighting the seriousness of the crime, threatening to arrest him and put him in jail if he did not “explain what happened,” and stating that he and Martinez were “looking at going to jail for child neglect.” This, Orozco argued, constituted “coercion.”[34] It is also noted that the officers, compounding their improper interrogation tactics, attempted to talk Orozco out of invoking his right to counsel (a potential issue not mentioned by the Court).[35]
To constitute a due process violation, however, there must be evidence of “coercion.” As noted above, Orozco’s incriminating statements to Martinez were not coerced because, as far as he knew, he was talking to his girlfriend at that point in time when he confessed. The officers’ behind-the-scenes manipulation was held to be, at most, a form of deception. But “police trickery . . . does not, by itself, render a confession involuntary.” The “trickery” in this case consisted of merely placing defendant in a room with someone he trusted to see if he would talk to her. Because the proximate cause of his ensuing confession was his conversation with Martinez, and not the deceptive act of orchestrating its occurrence, the requisite causal link between the police stratagem and Orozco’s confession is missing. [36]
The Court also held that The officers’ reminders to Orozco that the penalty for causing Mia’s death was severe, their threat to arrest him immediately if he did not “explain what happened” (while promising not to immediately arrest him if he did), and their reminder that he (and Martinez) were “looking at going to jail” for Mia’s death, was held not to have violated his due process rights. “(I)nforming a suspect of the likely consequences of the suspected crimes or of pointing out the benefits that are likely to flow from cooperating with an investigation” is not improper.[37]
Referring to the officers’ interrogation tactics, including ignoring Orozco’s repeated attempts to invoke his right to the assistance of counsel, as “deplorable,” the Court held that none of this was what caused defendant to eventually confess. Absent a causal link between the officers’ actions and defendant’s eventual confession, there are no grounds to cause the suppression of his incriminating statements.[38]
Conclusion:
It needs to be noted, by the way, that the use of a police agent, while not improper under the circumstances of this case, is a different issue once a suspect has been formally charged. After the filing of a complaint and/or his arraignment in court, a suspect’s Sixth Amendment right to counsel kicks in. Any surreptitious use of a police agent after a suspect is formally charged is a violation of the Sixth Amendment and will result in the suppression of any resulting statements.[39]
In this new case, however, the right-to-counsel issues stemmed from an application of the Fifth Amendment’s protections. Use of a police agent under the circumstances of this case is clearly lawful. But the officers’ blatant violations of Miranda and Edwards is just as clearly illegal.
In looking at the circumstances of this case, it is not clear what the officers (who, diplomatically, were not named in the decision) thought they were doing by repeatedly ignoring Orozco’s attempts to invoke, and then compounding this error by actively trying to talk him into changing his mind, all of which is in blatant violation both the letter and the spirit of the Miranda and Edwards decisions. Although such tactics may be approved (or even encouraged) by some legal advisors (as well as various television cop shows), noting that the product of a simple Miranda violation does not necessarily preclude the use of a defendant’s resulting incriminating statements by the prosecution in rebuttal to that defendant’s perjury, the Court here referred to the officers’ interrogation tactics as “deplorable.”[40]
It has long been the position of some Miranda scholars (myself included), as well the California Supreme Court,[41] that police officers who are concerned with their professional reputations as law enforcement officers should not be engaging in intentional Miranda violations despite the possible evidentiary value of impeachment testimony. And although not mentioned in this decision, there is both U.S. and California Supreme Court authority for the argument that such blatantly improper tactics, such as repeatedly ignoring a suspect’s attempt to invoke and then trying to talk him or her out of an express invocation, do in fact constitute a due process violation, and could have resulted in the suppression of Orozco’s statements for all purposes.[42]
The only thing that avoided suppression in this case was the saving factor of “attenuation” between the objectionable police tactics and the eventual confession, and the fact that questioning by Martinez did not fit into the legal definition of an “interrogation.” But recognizing that bad facts make for bad case law, respect for the rules under Miranda and Edwards is perhaps what prosecutors, as officers of the court, should be emphasizing, and not the purposeful, and ethically improper, quest for impeachment evidence.
[1] (Feb. 28, 2019) 32 Cal.App.5th 802.
[2] Id., at p. 806.
[3] Miranda v. Arizona (1966) 384 U.S. 436.
[4] People v. Orozco, supra, at p. 807.
[5] Ibid.
[6] Ibid.
[7] Id., at p. 808.
[8] Ibid.
[9] Ibid.
[10] Id., at pp. 808-809.
[11] Id., at p. 809.
[12] Ibid.
[13] P.C. §§ 187(a) and 273ab(a), respectively.
[14] See People v. Torres (2018) 25 Cal.App.5th 162, 174.
[15] People v. Orozco, supra, at p. 811.
[16] People v. Peevy (1998) 17 Cal.4th 1184, 1191.
[17] (1981) 451 U.S. 477.
[18] People v. Orozco, supra, at p. 812.
[19] See People v. Lessie (2010) 47 Cal.4th 1152, 1162.
[20] People v. Orozco, supra.
[21] Ibid.
[22] Id., at pp. 813-815.
Illinois v. Perkins (1990) 496 U.S. 292, 297.
[23] People v. Orozco, supra, at p. 813.
Rhode Island v. Innis (1980) 446 U.S. 291, 300–301.
[24] People v. Orozco, supra.
Rhode Island v. Innis, at p. 300.
[25] People v. Orozco, supra.
[26] Ibid,
Rhode Island v. Innis, at p. 301.
[27] People v. Orozco, supra.
Rhode Island v. Innis, at p. 295.
[28] Illinois v. Perkins, supra;
People v. Williams (1988) 44 Cal.3rd 1127, 1141–1142.
[29] People v. Orozco, supra, at pp. 814-817.
[30] Id., at pp. 817-818.
[31] See Lisenba v. California (1941) 314 U.S. 219, 238.
[32] People v. Orozco, supra, at p. 819;
Citing People v. Linton (2013) 56 Cal.4th 1146, 1176
See also Oregon v. Elstad (1985) 470 U.S. 298, 304.
[33] People v. Orozco, supra, at p. 818-821.
[34] Ibid.
[35] See People v. Peracchi (2001) 86 Cal.App.4th 353
[36] People v. Orozco, supra, at p. 819-820.
[37] Id., at pp. 820-821.
[38] Ibid.
[39] Massiah v. United States (1964) 377 U.S. 201.
[40] People v. Orozco, supra, at p. 816.
[41] See People v. Nguyen (2015) 61 Cal.4th 1015, 1075-1077; and
People v. Peevy (1998) 17 Cal.4th 1184, 1205.
[42] Spano v. New York (1959) 360 U.S. 315;
People v Neal, supra.
