LEGALUPDATES.COM

• Traffic Stops and Prolonged Detentions
• Criminal History/Warrant Checks and Prolonged Detentions
• The Doctrine of Inevitable Discovery and Prolonged Detentions

(1) For purposes of officers’ safety, police officers during a lawful detention may request a criminal history check and a check for outstanding warrants without illegally prolonging the detention.  (2) Criminal history and warrant checks are permissible as part of the “mission” of an otherwise lawful detention.   (3) Information obtained when a detention is illegally prolonged may be saved by the Doctrine of Inevitable Discovery.

In October, 2016, defendant Anthony Hylton, wearing a mask, dark clothing, sunglasses, and gloves, robbed a Citibank in Henderson, Nevada.  Brandishing a black semi-automatic handgun with brown grips, he foolishly pulled back the side (apparently for effect), ejecting an unexpended round in the process.  Jumping over a counter to the teller’s side, he—even more foolishly—shoots into the floor (again for effect, just in case no one was yet taking him seriously).  Having thus obtained everyone’s attention, he ordered a bank teller to give him all the money in the drawers.  Stealing almost $70,000, he affected his escape by driving away in a black midsize SUV that (according to witnesses) looked like a Ford Escape (appropriately named).  Witnesses provided a very general physical description. Two months later (December, 2016), a passed-out defendant was found behind the wheel of a car (apparently not the Escape) at 6:13 a.m., stopped in the middle of one of Las Vegas’ busiest intersections.  Upon contacting him, officers could smell the odor of marijuana coming from the car.  Upon awakening the disoriented and confused defendant, it was noticed that pieces of pills of some sort were stuck to his sweatshirt.  Asked to get out of his car, defendant complied.  Asked for his license and registration, he told the officers that they were in the back seat.  An officer entered the car to retrieve the license and registration.  (See Note, below.)  He could not find the documentation, but observed instead in plain sight a gun case with a semi-automatic pistol in it.  A radio check run on the gun came back negative for having been stolen.  A continued search for defendant’s license and registration resulted in the discovery of some crushed pills and a half empty bottle of alcohol.  A field sobriety test (“FST”) was administered, the results of which were inconclusive.  It was decided to request a drug recognition expert (i.e., “DRE”) to come to the scene, which is the standard practice when FSTs are inclusive.  While waiting for the DRE, the search for defendant’s license and registration continued, still without success.  By then, it was 6:41 a.m., some 28 minutes into the detention. Obtaining his name and date of birth orally, they used this information to perform a radio check on the status of his driver’s license, registration, and insurance. They also checked for any open warrants and his criminal history.  This resulted in the discovery that defendant had a felony record.  He was therefore arrested for being a felon in possession of a firearm.  The time of the arrest was 6:49 a.m., making the length of the detention some 36 minutes.  The firearm was later determined to match the description of the pistol used in the October bank robbery; i.e., a black semi-automatic handgun with brown grips.  Ballistics later matched the gun to the round defendant fired into the bank’s floor.  However, without yet being charged with robbery, defendant was released on bail.  Apparently running low on cash, and remembering what a big haul he’d made the first time, defendant returned to the same Citibank branch in January, 2017, and robbed it again.  This time he used a silver revolver (the police having taken his semi-automatic pistol).  Stealing some $18,000, defendant was again seen escaping in a Black Ford Escape.  Investigators (not yet tying this robbery to the earlier one in October) found only three Ford Escapes registered in the area, one of which belonged to defendant’s girlfriend.  She told investigators that defendant was the only one (other than herself) who was allowed to use her car.  So it was back to jail for defendant. Charged in federal court with two counts of bank robbery, two counts of the use of a firearm during and in relation to a crime of violence (i.e., the bank robberies), and one count of being a felon in possession of a firearm, defendant’s motion to suppress the firearm retrieved from his car in December was denied.  After defendant pled guilty to being a felon in possession of a firearm, a jury convicted him of the other four charges.  Defendant appealed.

The Ninth Circuit Court of Appeal affirmed.  The issue on appeal was the length of defendant’s detention in December; i.e., was it an illegally prolonged detention?  Defendant argued that his detention (lasting some 36 minutes) was unconstitutionally prolonged, and that because it was during this time it was discovered that he had a felony record, the gun—which otherwise would not have been seized—should have been suppressed.  The law on detentions as they relate to traffic stops is well-settled.  Police may stop and temporarily detain an individual whenever they have a reasonable suspicion to believe that the person detained has committed a traffic infraction.  “A routine traffic stop is more analogous to a Terry stop ‘than to a formal arrest,’ . . .” (Referring to Terry v. Ohio (1968) 392 U.S. 1.)  However, such a stop (or, more correctly, a “detention”) “‘can become unlawful if it is prolonged beyond the time reasonably required to complete the mission of issuing a’ ticket for the violation.” (Italics added:  Rodriguez v. United States (2015) 575 U.S. 348, 354-355.) “‘[T]he tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s “mission”—to address the traffic violation that warranted the stop and attend to related safety concerns.’”  (Id. at p. 354.)  In this case, an unconscious defendant was found in a vehicle in the early morning hours and in the middle of a busy intersection, either asleep or passed out.  The “mission” of this particular detention was to determine the cause of defendant’s condition, reasonably suspecting that he may have been illegally driving while under the influence of alcohol and/or drugs.  The officers’ safety is also something that may be taken into account during such a detention.  “The government’s interest in officer safety ‘stems from the mission of the stop itself’ because ‘[t]raffic stops are especially fraught with danger to police officers, so an officer may need to take certain negligibly burdensome precautions in order to complete his mission safely.’” (Id. at p. 356.)  In recognizing that officer safety is a concern, it has been held that officers are justified in running “criminal record and outstanding warrant checks” to help them access who it is with whom they are dealing.  (Ibid, citing United States v. Holt (10th Cir. 2001) 264 F.3rd 1215, 1221-1222.)  The officers did that here, discovering in the process (after the detention had lasted for between 28 and 36 minutes) that defendant was a convicted felon, making it illegal for him to possess the firearm previously found in his vehicle.  Defendant’s argument was that by taking the time to run a criminal history and warrant check on him, his detention had been prolonged beyond the time the officers could legally hold him, citing United States v. Evans (9th Cir. 2015) 786 F.3rd 779 as authority for this argument. The Court here, however, noted that in Evans, the computer check done by the officers was for a purpose other than their safety, but rather to determine whether the detainee was a felon and if so, whether he had properly registered as such as is required by Nevada state law.  This is referred to as a “felon registration check.” This type of records check is different than a criminal history check done for purposes of officers’ safety.  As such, if the Evans-type check prolongs the traffic stop beyond the time necessary to complete the “mission” of a traffic stop, it is illegal absent some other independent reasonable suspicion justifying the continued detention.  In the instant case, however, the criminal history check was for the purpose of insuring the officers’ safety, and thus “stems from the mission of the stop itself.”  In other words, precautions taken to insure the officers’ safety during a traffic stop-type detention are a part of the mission of the detention, and are lawful without having to first establish some independent reasonable suspicion.  Such a check is a “negligibly burdensome precaution (necessary) to complete the stop safely.”  The criminal history check done in this case, therefore, did not unlawfully prolong defendant’s detention. Alternatively, the Court found that even if defendant’s felony record had been discovered after that point in time when the detention should have ended, that information would have “inevitably” been found anyway.  This fact triggers what is known as the “Inevitable Discovery Doctrine.”  This theory applies when, by “following routine procedures, the police would inevitably have uncovered the evidence (at issue).” (United States v. Young (9th Cir. 2009) 573 F.3rd 711, 721.)  In this case, defendant’s gun had already been observed during (as conceded by defendant) his lawful detention.  When it was later discovered that he was a felon—by the Court’s count, some two minutes after he would have been released—the officers “would have pulled him over again and seized the gun.”  Therefore, even if defendant’s detention should have ended before it was discovered that he was a convicted felon, he would have inevitably been arrested anyway with his gun seized as a result.  The Court found this to be an appropriate application of the “Inevitable Discovery Doctrine.”  In either case, the Court upheld the trial court’s refusal to suppress defendant’s gun.

Including the running of a criminal history and warrant check within the “mission” of a traffic stop type of detention—done with officers’ safety in mind—without unconstitutionally prolonging that detention, is the primary issue of importance here.  This rule has not always been so succinctly stated in prior cases.  And the issue has only been complicated by the U.S. Supreme Court’s 2015 decision in Rodriquez v. United States, referred to above.  Rodriguez held that even a “di minimis” extension of a detention beyond what is necessary to accomplish the mission of a traffic stop renders that continuing detention illegal.  (The defendant in Rodriquez having been held some seven minutes too long.)   So this new case is a good one to have on the books, giving us some idea what you can and cannot do without illegally prolonging a detention.  But it is still always an issue of how long you can hold onto a detainee without violating Rodriguez, the answer varying depending upon the circumstances of the stop.  A typical traffic stop, for instance, should normally be accomplished in around ten minutes.  (See People v. Carter (2005) 36 Cal.4th 1114, 1139-1142.)  In this new case, the defendant appeared to be under the influence of something—although it was apparently never determined what—allowing for a longer detention while this issue was investigated.  All you as a patrol officer can do is use your time wisely without dragging your feet.  On another issue, I was a little surprised that defendant didn’t challenge the legality of the officer’s search of his car for his license and registration.  The general rule is that an officer must allow the driver the opportunity to locate and produce his own license and registration.  (See People v. Jackson (1977) 74 Cal.App.3rd 361.)  There’s no indication in this case that the officer who found defendant’s gun in the backseat attempted to comply with Jackson.  But the rule in Jackson has pretty much been eaten up by exceptions.  Relevant here is Ingle v. Superior Court (1982) 129 Cal.App.3rd 188, at pg. 194, where the Court held that “it would defy common sense not to hold that an officer, who has a right to see a motorist’s driver’s license, may enter a vehicle to obtain the license when the motorist, who is outside the vehicle, has told him [or her] where it is and has not otherwise objected to his [or her] entering the car without a warrant.” (Italics added)  Ingle is spot on with the circumstances of Anthony Hylton’s situation in this case.  But with the Ingle case being some 42 years old, the issue might have been worth testing again.  Defendant apparently chose not to do so. 

• Civil Lawsuits Against Federal Officers
• Bivens v. Six Unknown Fed. Narcotics Agents

Bivens-based civil suits are not to be extended beyond what has already been decided absent meeting some very stringent case law requirements. 

Plaintiff Robert Boule—a U.S. Citizen—owns, operates, and lives in a small bed and breakfast, called “Smuggler’s Inn,” in Blaine, Washington.  Blaine is the last town in the United States along U. S. Interstate Highway 5 before reaching the Canadian border.  Boule’s property backs right up to the U.S.-Canadian border, and in fact extends some five feet into Canada itself. You can literally walk out the Smuggler’s Inn’s back door and, in a few more feet, walk into Canada. The area surrounding the Inn “(i)s a hotspot for cross-border smuggling of people, drugs, illicit money, and items of significance to criminal organizations.”  On March 20, 2014, Boule was expecting a guest who, although flying in from New York, was originally from Turkey.  While Boule was running errands in town, Customs and Border Patrol Agent Erik Egbert contacted him and asked him about guests staying at his inn.  Boule told him about the Turkish guest who, at that moment, was being picked up by an employee of the inn at the Seattle-Tacoma International Airport, some 125 miles south of Blaine.  Telling the Border Patrol about such guests was not unusual in that playing both ends against the middle, Boule would both charge individuals wanting to use his Inn to sneak into Canada, or vice versa, and then inform the Border Patrol about their presence.   Interested in checking this new guest out, Agent Egbert stationed himself at the entrance to the inn, waiting for him to arrive.  When he did, Agent Egbert followed the car up plaintiff’s driveway and attempted to contact the Turkish guest, intending to check his immigration status.  Boule, for reasons not explained, interceded, telling the agent to leave his property.  When Agent Egbert ignored him, Boule stepped between the agent and the car, asking him again to leave.  Per Boule’s version of the facts, Agent Egbert then shoved him up against the car.  When Boule refused to move away from the car, Agent Egbert grabbed him and pushed him aside and onto the ground, allegedly injuring his (Boule’s) back.  It was subsequently determined that the guest was in fact in the country legally (although he later entered Canada illegally, passing out Boule’s back door and over the border).  Boule later filed a formal complaint with Agent Egbert’s superiors about the incident.  In alleged retaliation, Agent Egbert contacted the Internal Revenue Service (IRS), the Social Security Administration, the Washington State Department of Licensing, and the Whatcom County Assessor’s Office, asking them to investigate Boule’s business. Despite any of these agencies being find anything that Boule had done wrong, it still cost him over $5,000 in accountants’ fees for handling the resulting IRS tax audit. Boule also filed claims pursuant to the Federal Tort Claims Act (FTCA).  Ultimately, Boule’s FTCA claim was denied and, after a year-long investigation, the Border Patrol took no action against Agent Egbert for his alleged use of force or acts of retaliation, leaving him to continue to serve as an active-duty Border Patrol agent.  Not having received any satisfaction, Boule then sued Agent Egbert in federal court, seeking damages for a violation of his Fourth (excessive force) and First (unlawful retaliation) Amendment rights.  Because 42 U.S.C. § 1983 does not apply to alleged misconduct by federal officers, Boule invoked the Supreme Court’s Bivens decision as his authority for filing this lawsuit.  (See Bivens v. Six Unknown Fed. Narcotics Agents (1971) 403 U.S. 388 [91 S.Ct. 1999; 29 L.Ed.2nd 619], and discussion below.) The District Court declined to extend a Bivens remedy to Boule’s claims and entered judgment for Agent Egbert, dismissing the case.  Boule appealed.  The Ninth Circuit Court of Appeal reversed. (Boule v. Egbert (9th Cir. Nov. 20, 2020) 980 F.3rd 1309; see Legal Update, Vol. 26, #5, Apr. 18, 2021.)  The United States Supreme Court granted certiorari.

The U.S. Supreme Court, in a 6-to-3 split decision wherein the majority agreed with the trial court as to the non-applicability of a Bivens remedy to the situation in this case, reversed the Ninth Circuit.  As noted above, Title 42 U.S.C. § 1983 does not provide authority for a lawsuit against a federal officer who is alleged to have violated a plaintiff’s civil rights.  Section 1983 is statutorily limited to lawsuits against state officers only.  There are no similar statutory remedies for when the person sued is a federal officer.  The Supreme Court, therefore, sought to fill this statutory void by authorizing a case-law remedy, deciding the case of Bivens v. Six Unknown Fed. Narcotics Agents in 1971.  In the Bivens decision itself, the Supreme Court ruled that it had the authority to create “a cause of action under the Fourth Amendment” against federal agents who allegedly manacled the plaintiff and threatened his family while arresting him for a narcotics violation.  Since Bivens, the High Court has held that similar authority applied in a Fifth Amendment sex-discrimination case (Davis v. Passman (1979) 442 U.S. 228.) and a federal prisoner’s “inadequate-care” claim under the Eighth Amendment’s cruel and unusual punishment clause. (Carlson v. Green (1980) 446 U.S. 14.).  But that’s it.  The Ninth Circuit in this new case sought to extend Bivens to Boule’s Fourth Amendment excessive force claim and his First Amendment unlawful retaliation claim.  But since Davis and Carlson, the Supreme Court has determined that a cause of action under Bivens is “a disfavored judicial activity.” (Ziglar v. Abbasi (2017) 582 U.S. __, 137 S.Ct. 1843, 1857.)  From here, the Court goes into a long dissertation concerning the wisdom (or lack thereof) of the Bivens decision, ultimately asking itself whether there is any reason to think that the courts might be better equipped than the Legislature to create a damages remedy.  Generally, the rule is now “that a court may not fashion a Bivens remedy if Congress already has provided, or has authorized the Executive (Branch) to provide, ‘an alternative remedial structure.’”  (Quoting Ziglar v. Abbasi, supra.)  Apply this rule (as vague as it is) to Boule’s Fourth and First Amendments claims, the Court here held that “the (Ninth Circuit) Court of Appeals plainly erred when it created causes of action for Boule’s Fourth Amendment excessive-force claim and First Amendment retaliation claim.”  As for the Fourth Amendment claim, the Court held that the Ninth Circuit errored in failing to find that (1) Congress is in fact better positioned to create remedies in the border-security context, and (2) the Government already provides alternative remedies that protect plaintiffs like Boule.  As to the first conclusion, the Court noted that it had already determined that when border issues are the concern, Congress is better suited to handle it though appropriate legislation.  (See Hernández v. Mesa (2020) 589 U.S. __, __, 140 S.Ct. 735, involving a Border Patrol agent who shot and killed a 15-year-old Mexican national across the border in Mexico.)  The Ninth Circuit ignored this Supreme Court precedent.  As for the second, Boule had available to him an internal grievance procedure. The U. S. Border Patrol is statutorily obligated to “control, direc[t], and supervis[e] . . . all employees.” (8 U. S. C. §1103(a)(2)). Also, by regulation, Border Patrol must investigate “[a]lleged violations of the standards for enforcement activities” and accept grievances from “[a]ny persons wishing to lodge a complaint.” (8 CFR §§287.10(a)-(b))  The fact that these procedures may not be as effective or thorough as a civil suit, or that they did not turn out as Boule had wanted, is irrelevant, per the Court.  (See Correctional Services Corp v. Malesko (2001) 534 U.S. 61.)  As for Boule’s First Amendment retaliation claim, the Court held that “(t)here are many reasons to think that Congress, not the courts, is better suited to authorize such a damages remedy.”  For instance, the Court considered the relative costs—financial and social—involved in seeking a judicial remedy, noting that “any new Bivens action ‘entail[s] substantial social costs, including the risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties.’”  (Quoting Anderson v. Creghton (1987) 483 U.S. 635.) Extending Bivens to alleged First Amendment violations would pose an acute risk of increasing such costs in that a plaintiff can turn practically any adverse action into grounds for a retaliation claim. Also, “[b]ecause an official’s state of mind is easy to allege and hard to disprove, insubstantial claims that turn on [retaliatory] intent may be less amenable to summary disposition.”  (Quoting Crawford-El v. Britton (1998) 523 U. S. 574, 584-585.) “Even a frivolous retaliation claim ‘threaten[s] to set off broad-ranging discovery in which there is often no clear end to the relevant evidence.’” (Quoting Nieves v. Bartlett (2019) 587 U.S. __, __, 139 S. Ct. 1715, 1725.)  For these reasons, the Court concluded that the Ninth Circuit erred in attempting to bring this case under the umbrella of a Bivens action.  The Ninth Circuit decision was therefore reversed.

I’ve often argued that any court, on any given day, can (and often does) justify any given result should it choose to do so, merely by injecting a lot of legal mumbo jumbo into its decision, tossing in a pile of random case law. It seems that the longer the case decision, the more likely the court had to struggle in reaching the conclusion it wanted.  The U.S. Supreme Court is no exception.  This case, as published in the United States Supreme Court Lawyer’s Edition version (abbreviated as “L.Ed.2nd;” the only publisher yet providing a citation for this case), gives us a 28-page majority opinion.  But basically the majority of the Court here is telling us that Bivens was probably a mistake, and they’re not going to extend it any further.  The concurring opinion—written by Justice Neil Gorsuch—all but advocates that Bivens be over-turned, referring to Bivens as a “misstep,” and asking: “When might a court ever be ‘better equipped’ than the people’s elected representatives to weigh the ‘costs and benefits’ of creating a cause of action?” (Italics in original) You might, therefore, look at this case as one pronouncing the death of Bivens v. Six Unknown Fed. Narcotics Agents.  So it’s time for Congress to get busy and give us some legislation similar to 42 U.S.C. § 1983 (which, as noted above, provides a civil remedy for lawsuits against state and local peace officers), thus allowing persons wronged by federal officers to air their grievances in a consistent, organized, statutorily approved fashion.  It will save everyone—such as an allegedly wronged private citizen as well as the involved federal officers—a lot of time, money, and effort.

• Miranda and Civil Liability for Violations
• The Fifth Amendment as it Relates to Miranda
• The Prophylactic Nature of a Miranda Violation

A violation of the rules of Miranda is not also, by itself, a Fifth Amendment constitutional violation.  The use of a defendant’s statements at trial, obtained in violation of Miranda, does not convert the Miranda violation into a Fifth Amendment issue. Therefore, violating Miranda, as a general rule, does not provide the basis for a federal 42 U.S.C. § 1983 civil rights lawsuit. 

Plaintiff Terence Tekoh worked as a certified nursing assistant at a Los Angeles medical center.  In March, 2014, a female patient accused him of sexually assaulting her.  The hospital staff reported the accusation to the Los Angeles County Sheriff’s Department.  Sheriff’s Deputy Carlos Vega was dispatched to investigate.  Deputy Vega took Tekoh to a “reading room” (i.e., a small, windowless and soundproof room used by doctors to read MRIs), where he was questioned about the patient’s accusations.  Deputy Vega did not read Tekoh his Miranda rights or obtain a waiver prior to the questioning, apparently considering the situation to be a non-custodial interrogation.  Deputy Vega alleged in later court hearings that Tekoh had immediately admitted that he’d “made a mistake.”  Deputy Vega had Tekoh put in writing what he himself referred to as an “honest and regrettable apology,” admitting in a brief account to “spreading (the patient’s) vagina lip for a quick view.”  Tekoh, on the other hand, claimed that he continually denied touching the patient, but wrote out his mini-confession only after having been threatened by Deputy Vega.  Specifically, Tekoh alleged that Deputy Vega refused to allow a third person to accompany them into the MRI room, would not let him leave the room once they were in there, ignored his request for an attorney, falsely claimed that the assault had been captured on video, used racial slurs, and threatened him with deportation, all triggering flashbacks to his experiences with police brutality in Cameroon where he was from.  According to Tekoh, Deputy Vega put a pen and paper in front of him, telling him to “write what the patient said [he] did.” When Tekoh hesitated, attempting to leave the room, Deputy Vega stood in front of him, stepped on his toes, and put his hand on his gun, telling Tekoh that he was not joking. Tekoh also alleged that Deputy Vega then dictated the contents of the written confession.  Tekoh testified that he was so scared that he was “ready to write whatever [Deputy Vega] wanted,” acquiescing to writing the statement as dictated to him.  (These facts were largely obtained from the Ninth Circuit’s prior decision in Tekoh v. County of Los Angeles (9th Cir. Jan. 15, 2021) 985 F.3rd 713, at pages 715-716.  See California Legal Update, Vol. 26, #4, March 23, 2021.)  Arrested and charged in state court with unlawful sexual penetration, per P.C. § 289(d), Tekoh’s confession was admitted into evidence at trial.  With a mistrial being declared mid-trial (due to evidence being used by the prosecution that had not previously been disclosed to the defense; i.e., a Brady v. Maryland violation), defendant was retried and acquitted despite the trial court admitting into evidence his written confession (the jury apparently believing Tekoh’s claims that it had been coerced and was not reliable).  Tekoh then sued Deputy Vega (and others) in federal court under authority of 42 U.S.C. § 1983, seeking damages for alleged violations of his constitutional rights, including his Fifth Amendment right against compelled self-incrimination.  Two trials were held, the first resulting in a verdict in Tekoh’s favor but the trial court granting the civil defendants’ motion for a new trial due to instructional error (not an issue here).  In the second trial, Tekoh requested that the court instruct the jury (pay attention, now; this is the issue in this case) that if it was determined by the jury that Deputy Vega had taken a statement from Tekoh in violation of Miranda and that the statement had been used against Tekoh at his criminal trial, then the jury was required to find that the deputy had violated Tekoh’s Fifth Amendment right against compelled self-incrimination.  The trial court declined to give this instruction, reasoning that Miranda established a “prophylactic rule” only, and that a Miranda violation by itself did not provide grounds for §1983 liability.  Instead, the trial court instructed the jury to the effect that to find that Deputy Vega civilly liable (i.e., that he had violated the Fifth Amendment), they would have to find that he improperly “coerced or compelled” Tekoh into confessing.  Per the trial court’s instructions to the jury, in order to find that Deputy Vega had “improperly coerced or compelled (Tekoh into confessing, the jury would have to find that Deputy Vega had used) physical or psychological force or threats not permitted by law to undermine (Tekoh’s) ability to exercise his . . . free will.” The jury found in Deputy Vega’s favor (i.e., that his confession had not been coerced), and Tekoh appealed.  The Ninth Circuit reversed in Tekoh v. County of Los Angeles, supra, ruling that the trial court should have given the jury the instruction as Tekoh had requested; i.e., to the effect that a simple Miranda violation (with or without actual coercion), becomes a constitutional Fifth Amendment violation when the resulting confession is used at trial.  The United States Supreme Court granted certiorari.

The U.S. Supreme Court, in a split 6-to-3 decision, reversed the Ninth Circuit.  The issue decided by the Supreme Court was whether a simple failure to comply with the Miranda rule (without coercion) constitutes a violation of the Fifth Amendment.  More to the point of the Ninth Circuit’s decision:  Does a Miranda violation ripen into a violation of the Fifth Amendment when the results of the Miranda violation are used at trial?  The simple answer to both questions, per the U.S. Supreme Court, is “no.”  First, we must be reminded what the Fifth Amendment says about the issue of “self-incrimination:”  “No person . . . shall be compelled in any criminal case to be a witness against himself.” The Court pointed out that this simple clause “permitshttps://advance.lexis.com/document/?pdmfid=1000516&crid=d9f33bab-616b-46ce-9e74-701f91cf4d1c&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A65S3-40F1-F1H1-20MV-00000-00&pdcontentcomponentid=6443&pdteaserkey=sr0&pditab=allpods&ecomp=sd-pk&earg=sr0&prid=92cd8a64-217a-4400-832a-cbcde09b22e9 a person to refuse to testify against himself at a criminal trial in which he is a defendant” and “also ‘privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.’” (Minnesota v. Murphy (1984) 465 U. S. 420, 426.) This includes interrogations when the subject is in custody.  (Stansbury v. California (1994) 511 U.S. 318, 322.)  The Fifth Amendment has been interpreted to be applicable to the States by the Fourteenth Amendment’s due process clause; i.e., as an issue of “fundamental fairness.”  (Malloy v. Hogan (1964) 378 U. S. 1, 6, 20.)  The Fifth Amendment (of course) says nothing about an interrogating officer having to advise a criminal suspect of his right not to incriminate himself, let alone his right to have the assistance of an attorney when being questioned, or the fact that failure to follow these rules will result in the suppression of any resulting incriminating statements.  These rules came about as a result of the Supreme Court’s recognition of the fact that in-custody interrogations are inherently coercive and necessitated by the need to safeguard these rights.  But (and this is a big butt), the Miranda decision was never intended to create a constitutional right.  Per the Court, Miranda “merely imposed a set of prophylactic rules. Those rules, to be sure, are ‘constitutionally based,’ . . .  but they are prophylactic rules nonetheless.”  (Citing Dickerson v. United States (2000) 530 U.S. 428, at 444.)  The Court goes on to point out that neither the Miranda decision itself (decided in 1966, at 384 U.S. 436), nor the multitude of Supreme Court cases since (listing some 19 Supreme Court decisions decided from 1973 to the present), have ever intimated that Miranda was intended to establish anything more than a “prophylactic” rule.  Since Miranda was decided, the Court had “engaged in the process of charting the dimensions of these new prophylactic rules, . . . weighing the benefits and costs of any clarification of the rules’ scope.”  But never has the Court intimated that a violation of the Miranda rules constituted a violation of the Fifth Amendment, whether the resulting incriminating statements were used in trial or not.  The Court noted that while evidence obtained as a direct product of a constitutional violation (e.g., the Fourth Amendment, search & seizure rules) are normally inadmissible at trial, the “fruits” (i.e., physical evidence recovered) of a Miranda violation are admissible at trial, even though (under Miranda) the subject’s incriminatory admissions themselves are not. (See Michigan v. Tucker (1974) 417 U.S. 433, 450-452.)  The confusion on this issue was precipitated by the Supreme Court’s decision in Dickerson v. United States (2000) 530 U.S. 428.  In Dickerson, the Court held that the Legislature could not abrogate Miranda by enacting a statute in that Miranda was a “constitutional decision” that adopted a “constitutional rule.” (Dickerson, at pp. 438-439.)  This, however, was not intended to equate a Miranda violation with a violation of the Fifth Amendment under the U.S. Constitution.  To the contrary, “the Court (in Dickerson) made it clear that it was not equating a violation of the Miranda rules with an outright Fifth Amendment violation.”  Dickerson did no more than note that the “Miranda rules are ‘constitutionally based’ and have ‘constitutional underpinnings.’”   Per the Court, “Dickerson . . . did not upset the firmly established prior understanding of Miranda as a prophylactic decision.”  This all having been said, the Court noted that Tekoh was not necessarily precluded from bringing a 42 U.S.C. § 1983 lawsuit based upon the circumstances of this case. “It may . . . be argued that the Miranda rules constitute federal “law” and that an abridgment of those rules can therefore provide the grounds for a §1983 claim.  But it was incumbent upon Tekoh to persuade the Court that this “law” should be expanded to include the right to sue for damages under section 1983.  Specifically, he must show (1) that the benefits outweigh the costs, (2) that to allow such a suit would have some deterrent value (e.g., discouraging similar conduct by law enforcement officers), and (3) it would not disserve “judicial economy.”  The Court here held that Tekoh failed to prove any of these elements.  The Court therefore declined to extend the consequences of a Miranda violation to beyond merely excluding any resulting statements from being admitted into evidence.  “Because a violation of Miranda is not itself a violation of the Fifth Amendment, and because (the Court saw) no justification for expanding Miranda to confer a right to sue under §1983, the judgment of the Court of Appeals (was) reversed, and the case (was) remanded for further proceedings consistent with this opinion.”

I have a couple of problems with this decision. First, the Court assumes that questioning Tekoh under these circumstances was, as he alleged, a “custodial integration.”  This issue was never discussed even though it is apparent that Deputy Vega believed (as evidenced by his failure to Mirandize Tekoh) it was non-custodial.  This contention is supported by Deputy Vega’s claim that Tekoh began blurting out his guilt even before Deputy Vega was able to ask him what had happened.  Secondly, and most obviously, the Court never addresses the issue of coercion.  Terence Tekoh argued that not only were his Miranda rights violated, but that he was coerced into confessing as well; an allegation that Deputy Vega denied.  The jury at Tekoh’s criminal trial must have bought his claims that he had been coerced into confessing in that he was acquitted despite the written confession.  It appears from the case law that a coerced confession is in fact a 5th Amendment constitutional violation that is litigable under 42 U.S.C. § 1983.  (E.g., see Moran v. Burbine (1986) 475 U.S. 412, 421, People v. McClinton (2018) 29 Cal.App.5th 738, 762-764; People v. Jimenez (2021) 72 Cal.App.5th 712, 725.)  I would have liked to have seen a discussion on this issue, specifically explaining whether alleging a coerced confession (as opposed to a mere Miranda violation) did in fact allow for a section 1983 lawsuit.  Third; I went back and re-read the relevant portions of the Dickerson decision and have to agree with Justice Elena Kagan in her dissenting opinion (joined by Justices Breyer and Sotomayor) that the Dickerson Court did in fact find “that Miranda’s protections are a ‘right’ ‘secured by the Constitution’ under the federal civil rights statute” (i.e., 42 U.S.C. §1983).  The majority decision in the Dickerson case itself in fact reversed the lower court’s decision which was based upon the “prophylactic” nature of the rule of Miranda.  Now, the majority decision here attempts to walk some imaginary thin line, placing great emphasis on the fact that Miranda is but a non-constitutional “prophylactic” rule, not guaranteed by the Fifth Amendment, while at the same time constituting a “constitutional decision” that adopted a “constitutional rule.”  I see this language as very contradictory, bordering on the nonsensical.  The dissent, in my never-to-be-so-humble opinion, makes a lot more sense.