"FROM THE CLASSROOM"
By Ray Hill, Professor Emeritus, Santa Rosa Junior College
“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.
Questioning a Suspect on a Separate, Uncharged Crime
This is the fourth 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. The question for this article is:
A robbery suspect has been arraigned and appointed counsel on two residential robbery charges from Jurisdiction #1. A detective from Jurisdiction #2 desires to question the same suspect on a separate and uncharged residential 211 P.C. occurring in her city. The detective goes to the jail, and after a Miranda waiver is secured, interviews the suspect. He admits to having been at the crime scene, but did not possess the weapon or pistol whip the victim.
Later at a “402 Motion”, defense counsel objects to the introduction of these statements on the grounds that once an attorney has been appointed for the defendant, his Sixth Amendment right to counsel precludes in-custody, police initiated questioning unless counsel is present.
The statement should be? ADMISSIBLE or INADMISSIBLE
Clearly admissible. First some background:
The Sixth Amendment provides “in all criminal proceedings, the accused shall enjoy the right to have the assistance of counsel for his defense”. The Sixth Amendment triggers at or after the time that judicial proceedings have been initiated whether by way of formal charge, indictment, information, or arraignment. Once the defendant has been charged or arraigned on an offense(s), no police-initiated questioning can take place on the charged offense without the presence of counsel (Massiah v. U.S. (1964) 377 US 201 U.S.; Moran v. Burbine (1986) 475 US 412). If the defendant is indigent and unable to afford counsel, an attorney will be appointed at public expense at arraignment.
However, the Sixth Amendment right to counsel is “offense specific” (McNeil v. Wisconsin (1991) 501 US 171). It applies to crime(s) for which the defendant has been charged/arraigned. A request or appointment of counsel at arraignment doesn't invoke blanket Sixth Amendment protections for other uncharged offenses. So if the defendant has been charged or arraigned on Offense #1, police can still question on a separate and uncharged Offense #2. Examples:
Defendant was charged with the burglary of a neighbor’s house and was appointed counsel. He was also a “person of interest” in the simultaneous disappearance of the mother and her 16-month-old daughter who lived at the home. While out-of-custody, the defendant told his father that he had killed the victims during the burglary. His father reported this conversation to the police. Defendant was arrested, waived Miranda, and confessed to the killings. Though the offenses in question may have “facts related”, burglary and murder are not the same crime (not “inextricably intertwined”). There is a societal interest in the ability of the police to talk to charged suspects about separate and uncharged offenses (Texas v. Cobb (2001) 532 US 162).
Defendant committed an apartment burglary in San Bernardino County and took the keys to the victim’s car. Two days later he returned and stole the vehicle. He was arrested in Riverside County, charged with auto theft, appointed a public defender, and remained in custody. An Upland Police detective interviewed him about the offense occurring in
San Bernardino County. Defendant waived his Miranda rights and ended up confessing to all crimes. The right to counsel attached only to the charged auto theft offense not to the uncharged burglary (Peo. v. Slayton (2001) 26 Cal. 4th 1076);
Permissible to question an uncharged murder suspect even though he had counsel representation on a charged rape (Peo. v. Bradford (1997) 14 Cal 4TH 1005).
*Defendant (an attorney) was indicted on immigration fraud. Federal agents discovered evidence that he was soliciting his clients to lie about the cases. Two clients agreed to assist authorities and recorded incriminating conversations with the defendant. “Mir’s invocation of his Sixth Amendment right to counsel as to the labor fraud charges did not insulate him from the government investigation of another separate crime - the serious offense of witness tampering” (U.S. v. Mir (2008) 525 F3d 351).
Also take a look at Robert Phillip’s “Miranda and Confession Law – The Fifth Amendment”, April 2022, Pages 310-319).
So if your planning to approach a “person of interest” for questioning on a separate and uncharged crime, remember the previous “From the Classroom” articles on “Reinitiating Questioning After a Miranda Silence Assertion” and “Reinitiating Questioning After a Miranda Counsel Assertion”. If the suspect has “silenced up”, your good to proceed without delay (Mosley Rule). If the suspect has “counseled up”, follow the “14-day rule” before approaching for questioning (Shatzer Rule).
One final note. For questioning purposes, the Sixth Amendment right to counsel attaches only at or after the initiation of adversary judicial proceedings against the defendant (criminal complaint, indictment, petition, arraignment) (U.S. v. Gouveia, (1984) 467 U.S. 180). Example:
Defendant was a college professor suspected of selling grades to students who hadn’t attended classes, then engaging in witness tampering. He hired an attorney to represent him. Prior to arrest or criminal complaint, an informant and an undercover officer met with the defendant at a coffee house and recorded incriminating statements. The hiring of an attorney invokes no Sixth Amendment protection (U.S. v. Hayes (1999) 190 F3d 939).
Stay Safe!
RH
