FROM THE CLASSROOM 
By: Ray Hill, Professor Emeritus, Santa Rosa J.C.  

“Its ‘402’ time, officer”.“Who wins, you or defense counsel”?  Note: 402(b) E.C. – A pre-trial court hearing to determine the admissibility of an admission or confession.

This is the twelfth in a series of mini-articles covering basic Miranda and Confession Law. This review is equally applicable to detectives and those generalists who are assigned to investigate their own cases.

We learned about the “fruits of the poisonous tree” doctrine in the academy. Evidence seized in violation of the Constitution is inadmissible in court (Wong Sun v. U.S. (1963) 371 U.S. 471; Mapp v. Ohio (1961) 367 U.S. 643).

However, the U.S. Supreme Court has drawn a distinction between violations of the Fourth or Fourteenth Amendments and Fifth Amendment violations under the Miranda Rule.

A Miranda violation doesn't trigger an Exclusionary Rule remedy for any evidence subsequently and legally seized as a result of information learned during questioning. Only the statement itself is suppressed. Examples:

The mere fact that a Miranda violation occurs doesn’t constitute a due process violation. Miranda is only a “prophylatic rule” rendering any statement inadmissible in court (Dickerson v. U.S. (2000) 530 U.S. 428; Oregon v. Elstad (1985) 470 U.S. 298).

Defendant was harassing his ex-girlfriend in violation of a restraining order. He was also on probation for felony drug possession. His ex-girlfriend told police that the defendant was in possession of a gun. Colorado Springs, Colorado Police officers went to the defendant’s house and arrested him for the restraining order violation. An officer asked the defendant about possession of the gun. He initially refused to answer but after repeated questioning replied, “The Glock is in my bedroom on a shelf, on a wooden shelf”. The gun was recovered and defendant was charged with being a felon in possession of a firearm. The gun was admissible however the statement linking the defendant with knowledge and control of the gun was inadmissible. “A Miranda violation only impacts the admission of unwarned statements into evidence at trial” (U.S. v. Pantane (2004) 542 U.S. 630).  

Note: In this case, officers made an arrest and continued, un-Mirandized questioning when they didn’t get an initial response about the whereabouts of the gun. Remember, asking about the whereabouts of a gun would be permitted where an officer articulates a legitimate exigency concern. Officer safety counts under the Public Safety Exception to Miranda. Examples:

After an arrest was made, a question to locate a loaded shotgun at a campsite was based on an objectively reasonable need to protect police from immediate danger (U.S. v. Basher (2011) 9th Cir. 69 F3d 1161).

Defendant was arrested for an armed bank robbery. He was also a suspect in an armed hijacking. One officer asked, “Where is the gun?” Defendant replied, “It was in a black bag in the bedroom”. Defendant’s past history with weapons and the volatility of the situation facing the officers prompted a legitimate officer safety concern. The premises had not been secured and the defendant had not yet been searched or handcuffed. The officers didn’t know whether the defendant was armed or was hiding a gun nearby (U.S. v. Reilly (2000 9th Cir. 224 F3d 986).

“Illegal drugs and guns are a lot like sharks and remoras. And just as the diver who spots a remora is well-advised to be on the lookout for sharks, an officer investigating cocaine and marijuana sales would be foolish not to worry about weapons” (Peo. v. Simpson, et seq.).

Note: Remora: Any of several marine fishes of the family Echeneidae, having on the head a sucking disc with which they attach themselves to sharks, whales, sea turtles, or the hulls of ships (The American Dictionary of the English Language).

Officers served a narcotics search warrant. Upon taking custody and prior to any Miranda admonition, the defendant was asked if there were any weapons in the house. He replied there was a .380 auto underneath the mattress in his bedroom (he also forewarned of the 14 Rottweilers on the premises!). “The public safety exception applies with equal force where officers have been commanded by way of a magistrate’s warrant to enter into unknown quarters in which the use of deadly force was well within the realm of reasonable possibility”. “The purposes underlying Miranda pale by comparison to an officer’s obligation to protect members of the public and the police from the dangers that would be immediately encountered once the police attempted to enter Simpson’s residence to execute their warrant” (Peo. v. Simpson (1998) 65 Cal. App. 4th 857).

Even if a Miranda violation occurred, a statement leading to the location and finding of a victim’s body and forensic evidence found on the body were still admissible. “Fruits of the poisonous tree does not apply to a Fifth Amendment violation (Peo. v. Davis (2009) 46 Cal. 4th 539).

Please also see Miranda Update Bob Phillips, “Miranda and Confession Law – Fifth Edition, Pages 172-178).

An important caveat. If your questioning crosses the line and results in a Fourteenth Amendment or due process violation (promises of leniency, threats of punishment, inducements to confess, or an otherwise coerced or involuntary statement) not only the statement itself will be inadmissible, but also any contraband or physical evidence stemming from that statement.        A civil liability sanction (“1983” Action) could also take place. Example:

A search warrant seeking illegal weapons was served at the defendant’s Sonoma County ranch. No weapons were found during an initial search. Defendant was “Mirandized” and asserted silence. Questioning continued with the intent of locating the guns. Defendant was told he would be released on O.R. and wouldn't be subject to a federal prosecution if he told the officers where the guns were hidden. He was also told that his custody would be extended if he didn't cooperate and he would not have the ability to make bail. Defendant made incriminating statements and led officers to a rural location where the guns were buried. Both the statements and the guns were inadmissible. The questioning was more than a mere Miranda violation. The express and implied threats and promises rendered the statement involuntary and a violation of due process (Peo. v. Vasila (1995) 38 Cal. App. 4th 865).

Note: Apparently the “Doctrine of Inevitable Discovery” (“I would have found the guns anyway under authority of the search warrant”) did not apply here because of the manner in which the guns were concealed.

There a case law obligation to follow Miranda requirements before custodial interrogations. And we do want incriminating statements as evidence. However, circumstances may arise where locating and sealing a crime scene, preserving or recovering evidence, finding a possible witness, or developing follow up leads may take an investigative priority. Here, you have to use your best “situational judgment” and follow your department policy. Questioning without Miranda should be directed towards a priority investigative motive, should not be lengthy, and cannot be involuntary. Obviously, the non-Mirandized statement is inadmissible, unless attenuated (See Miranda Update # 11 - LU Ref. #CAB00179 and Bob Phillips, Miranda and Confession Law – Fifth Edition, Pages 242-244). However, any resulting investigative fruits or evidence obtained will not run afoul of the Fifth Amendment.

Stay Safe,

RH