T H E T E N N E
S S E E L A W T I M E S .
Monday November
24, 2003
will examine the
increasingly popular
police tactic to
obtain first a state-
ment from a
suspect without Miranda
warnings, then
administer the warn-
ings and obtain
a confession from the
suspect. The
Court will decide
whether such a
confession, even if
preceded by a
"voluntary" waiver of a
suspect's
Miranda rights, can be used
as evidence when
the original failure
to give the
warnings was deliberate.
In Seibert, a
police officer deliber-
ately chose not
to give the Miranda
warnings to a
woman he suspected of
taking part in a
fatal house fire. The
defendant was
arrested and ques-
tioned following
the death of a teenag-
er in a fire set
by the defendant's son
and his friend
at the defendant's home.
The woman then
admitted her role
and that she
knew the victim would
die in the fire.
In a second round of
questioning, the
officer then read her
the Miranda
warnings but persuaded
her to repeat
her self-incriminating
statement.
Missouri is appealing a rul-
ing that said
the second statement
should not have
been admitted into
the trial of the
woman, who was con-
victed of
second-degree murder.
The Court will
most likely con-
clude that
deliberate and intentional
police
withholding of the Miranda
rights justifies
the exclusion of the
evidence
obtained in Siebert.
However, instead
of excluding all
statements by
the suspect, the Court
may try to limit
the exclusion to the
second
confession in this case. If so,
that would leave
the Court in the pre-
carious position
of holding the sec-
ond confession
was poisonous fruit,
but the first
confession was not poi-
sonous fruit –
even though both
stemmed from a
deliberate attempt to
circumvent the
Fifth Amendment’s
prohibition of
compelled self-incrimi-
nation.
In United
States v. Patane, a
Colorado man
interrupted police
while they were
giving him the
Miranda
warnings, then he told them
about an illegal
weapon he had. The
Court’s decision
will address whether
physical
evidence (a gun in this case)
discovered as a
"fruit" of an imperfect
Miranda warning
can be introduced at
trial. The
Supreme Court will likely
base its
decision on the suspect’s vol-
untary
interruption of the police offi-
cers and hold
that the defendant
sealed his own
fate when he chose
not to listen to
the Miranda warnings.
In a third
Miranda case, police in
Nebraska
obtained a confession from
a suspect before
they had informed
him of his right
to an attorney. Later,
they arrested
him and read him his
rights, then
took a second confession
that they used
at trial against him.
This case should
be comparatively
simple for the
Court to decide. Prior
precedents
indicate that police must
advise suspects
of their right to coun-
sel at the point
that they begin any
interrogation,
not at a point that is
convenient or
strategically useful for
the
police.
In a drug
arrest case, Maryland v.
Pringle,
the justices will review a
decision by
Maryland's highest court
that a blanket
arrest of all passengers
in a car
violates the U. S. Constitution's
Fourth Amendment
ban on unreason-
able searches
and seizures. The state
court's ruling
overturned the convic-
tion and 10-year
prison sentence of a
passenger who,
after the controversial
arrest,
confessed to police that the
cocaine in the
car belonged to him.
On appeal, the
state of Maryland will
argue that the
Constitution allows
police to
arrest all passengers when a
car is stopped,
the police find drugs in
the car, and no
one admits ownership.
"Having seen a
large roll of bills
and a quantity
of crack cocaine in the
car, the
officer may not have been cer-
tain who
possessed the money and
drugs, but he
certainly was reasonable
in believing
that one or more of the
current
occupants were guilty of
crime,"
Maryland’s Attorney General
argues in his
brief to the High Court.
"Experience,
logic and common sense
suggest that
where there are three
occupants in a
car, there is a fair prob-
ability that
they are engaged in a com-
mon enterprise
with the driver and all
are
implicated.Thus ... the officer had
probable cause
to arrest Pringle (as
well as the
other two occupants)."
But Defendant
Joseph Pringle
counters that
he was a front-seat pas-
senger in the
car, and the police had
no probable
cause to arrest him based
on items found
exclusively in the
back seat. He
argues his arrest marked
a "deviation
from the basic, funda-
mental
principle that the right to
search a
vehicle for contraband does
not carry with
it a concomitant right
to arrest a
mere passenger in the vehi-
cle absent a
link connecting such pas-
senger to the
contraband."
In a roadblock
case, Illinois v.
Lidster,
the state is appealing a state
Supreme Court
decision overturning
the
drunk-driving conviction of
Robert Lidster,
who was arrested after
driving
erratically from a police
checkpoint in a
suburb of Chicago.
The police had
set up the barrier to
find witnesses
to a fatal hit-and-run
incident that
occurred at the same
time the
previous week. While driv-
ing from the
roadblock checkpoint,
Lidster almost
ran into an officer. His
vehicle was
stopped again, and Lidster
was then
arrested on a charge of driv-
ing under the
influence of alcohol.
He was
convicted and sentenced to a
year of
conditional discharge, counsel-
ing and a
14-day work program. He
was also
ordered to pay a $ 200 fine.
Both the
Illinois Court of Appeals and
the Illinois
Supreme Court held the
police
roadblock stopping all traffic
as part of a
criminal investigation vio-
lated the
Fourth Amendment's prohi-
bition on
unrea onable seizures.
On appeal, the
state argues that
the checkpoints
were narrowly
designed to
investigate a single, well-
publicized
homicide and not created
in a general
effort to uncover crime.
In addition,
the motorist stops were
very short in
duration, a mere 10 to 15
seconds, during
which police did not
ask for the
drivers' names, licenses,
registrations
or proof of insurance.
The officers
simply handed out flyers
about the
hit-and-run and asked
whether the
drivers or their passen-
gers had seen
anything related to the
hit-and-run
accident.
The state’s
brief to the Supreme
Court argues,
"[c]ommon sense dic-
tates that
setting up a checkpoint
exactly one
week after the crime, at
approximately
the same time of day --
in order to
stop motorists who regu-
larly travel
that route at the end of
their work
shifts -- will increase the
likelihood of
finding witnesses to the
crime." The
state would ask the Court
to find that
crime-specific informa-
tional
checkpoints are constitutional,
and that any
adverse finding would
prevent “law
enforcement officers
from performing
their historic, nor-
mal and
necessary functions of trying
to find
witnesses to a known crime."
Lidster
challenges the constitu-
tionality of
the roadblocks as intrusive
on
motorists.
His brief notes
the
police could
have discovered witness-
es to the
hit-and-run accident by plac-
ing public
service announcements on
the radio,
television, or newspaper, or
by putting up
flyers in adjacent busi-
nesses to the
crime scene.
Unlike
prior
checkpoints upheld by the
Supreme Court –
–to catch drunk
drivers or to
stop the smuggling of
illegal aliens
––Lidster argues the
police must
reasonably suspect that
an individual
has broken the law
before pulling
him or her over. He
states in his
brief, "[a]n investigative
stop can be
upheld only where indi-
vidualized
suspicion exists or a signif-
icant public
interest faces an immedi-
ate and great
threat. Otherwise, the
police would be
able to routinely stop
citizens
without just cause, thereby
violating
another public interest, that
being the
security guaranteed by the
Fourth
Amendment."
In U.S. v.
Banks, the government
is urging the
Supreme Court to over-
turn a Ninth
Circuit decision that FBI
agents broke
down the door of a crim-
inal suspect's
apartment too quickly
after
announcing they had a search
warrant for his
apartment. The agents
waited 15-20
seconds before busting
down the door
to Lashawn Banks'
apartment in
North Las Vegas. Inside
the apartment,
agents found a .40 cal-
iber
semi-automatic pistol; a .380 cal-
iber
semi-automatic pistol with a laser
sight and seven
rounds in the maga-
zine; a .22
caliber Beretta pistol; a bul-
let-proof vest;
rock and crack cocaine,
and a
scale.
Banks was
arrested and charged
with possession
of cocaine with
intent to
distribute and possession of
a firearm. He
sought to have the evi-
dence
suppressed, arguing that the
officers
violated his Fourth
Amendment right
against unreason-
able searches
by failing to follow
appropriate
knock and announce pro-
cedures when
serving the warrant.
The federal
government disputes this
contention.
"Under an
analysis for
reasonableness,
officers may almost
always conclude
that they have effec-
tively been
refused admittance, thus
justifying a
forcible entry, when 15-20
seconds have
elapsed after knocking
and announcing
their presence," the
government
writes in its brief to the
Supreme
Court.
"Indeed, a
shorter
period of delay
is generally reasonable
when officers
are executing a warrant
to search for
drugs, where the object
of the search
is subject to easy
destruction and
where violent armed
responses are
common. Officers need
not let
prolong d delay frustrate the
purpose of the
search or expose them
to undue
danger."
Banks argues
the Court should
affirm the
exclusion of evidence col-
lected in his
case, because the police
should have
waited more than 20 sec-
onds. The
officers had no reason to
suspect that
their lives would be
placed in
danger or that evidence
would be lost
if they waited for a ver-
bal response
from him. "Apparently,
the government
wants this court to
announce a
rigid rule that 15-20 sec-
onds
constitutes sufficient time to
infer a refusal
under the knock and
announcement
statute," Banks states
in his Supreme
Court brief. "The adop-
tion of a rigid
rule of 20 seconds
would
short-circuit Fourth
Amendment
reasonableness
inquiries."
The Supreme
Court will likely
reverse the
Ninth Circuit and hold the
evidence is
admissible, without adopt-
ing a rigid
rule on how long police
must wait
before forcibly entering a
suspect’s
residence or business. The
Court will
likely say the amount of
time must be
“reasonable,” but leave it
to the
individual officers to determine
that length of
time based on the exi-
gencies of the
circumstances they
face.
Finally, in
United States v. Flores-
Montano,
the Court will review yet
another Ninth
Circuit search and
seizure case.
This case will require
the justices to
decide whether cus-
toms officers,
conducting searches at
the border, can
remove, disassemble
and search a
vehicle's fuel tank with-
out the
“reasonable suspicion” that
the
Constitution would ordinarily
require. The
Ninth Circuit invalidated
the search of a
Ford Taurus station
wagon’s gas
tank, where agents found
some 81 pounds
of marijuana, in a
vehicle that
had crossed the Mexican
border into
California at the Otay
Mesa entry
point near San Diego.
Writing for the
Ninth Circuit
panel,
libertarian judge Alex Kozinski
wrote that
aside from delaying an
innocent
person, customs agents may
put the driver
in danger if they fail to
reassemble the
vehicle correctly.
"Where the
search includes the dis-
mantling of a
mechanical part in the
motor vehicle,
the driver has little
independent
opportunity to allay his
fear that the
vehicle may leave him
stranded on the
freeway -- or far
worse," he
wrote.
However,
the
Bush
Administration’s
Solicitor General
Theodore Olson
described the
removal and
inspection of gas tanks as
"quick, safe
and nondestructive" and
"not outside
the routine sorts of
inspections
that international travel-
ers should
anticipate when seeking
entry into this
country." It is not clear
from Olson’s
brief whether American
citizens would
be subjected to
inspection of
their vehicle parts, but
presumably so.
Olson also cited the
arrest and
conviction of terrorist
Ahmed Ressam,
who was seized in
1999 by a U.S.
Customs agent after he
crossed the
Canadian border with
explosives
hidden in the trunk of his
car. As part of
the so-called millenni-
um terrorist
plot, Ressam was sup-
posed to
detonate the bombs at the
Los Angeles
International Airport.
According to
Olson, if the Supreme
Court upholds
the Ninth Circuit, then
terrorists
could seek to hide explo-
sives in fuel
tanks in the future.
Thus a routine
case of interdict-
ing drug
traffic at the border has been
recast by the
Bush Administration into
a homeland
security case. Clearly, the
average
American citizen would be
highly offended
at having the fuel
tank removed
from the car he was
driving and
inspected at the border.
Those
inspections would never
become “quick
[and] safe,” and would
significantly
deter most motorists
from driving
their own valuable cars
outside of the
country. The Supreme
Court will have
to decide if practical-