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United States v. Blue,
No. 03-3334 (February 11, 2005) (Unpublished): Bank robbery case, conviction affirmed, but good discussion of coercive police interrogation techniques. Here, police used what is termed "simulated information" (no kidding) which is Government-speak for "lying." Blue was arrested in his girlfriend's car and the gun was recovered. In custody and during questioning, one FBI agent sent another FBI agent a bogus text message saying that Blue's girlfriend had been picked up and if the gun was not Blue's then it must be hers. Blue confessed rather than blame the girlfriend. The court quotes Blue's trial testimony which lead to his ultimate demise by showing how he was not unduly coerced by the ruse. The court also cited other cases where the cops lied, ...ahem...excuse me..."utilized simulated information," and it was held to be acceptable.
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United States v. Patane,
No. 02-1183 (U.S., June 28, 2004): Miranda violation does not require suppression of the physical fruits of a suspect’s unwarned, but voluntary, statements; merely the statements themselves.
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Missouri v. Siebert,
No. 02-1371 (U.S., June 28, 2004): Cops question suspect without Miranda warnings and obtain incriminating statements; then, administer Miranda and obtain the same incriminating statements. Court held this tactic is unconstitutional.
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United States v. Dowell,
No. 03-1341 (10th Cir., December 6, 2005) (Published): Convictions for destroying government property by fire and interfering with IRS officials affirmed over several claims, but noteworthy decision because it re-affirms that a criminal defendant may challenge a confession by another witness, even a witness for the Government(!) Rob Nigh told this to me years ago and I thought it was a very useful piece of knowledge. The standard is fairly high, the same as challenging a defendant's own confession as being coerced, but there is no standing issue because the defendant is actually asserting a constitutional Due Process claim that his trial would be fundamentally unfair if the coerced confession is used (because such a confession is not reliable). The Circuit recognized the right of Dowell to make such a claim but denied the claim under the facts of his case (his evidence of coercion was weak). It works like a Jackson v. Denno hearing (to challenge the defendant's own statements): you must request an evidentiary hearing on the issue in order to preserve the record (and you must make a credible showing of coercion). Still, if you have a case involving co-defendants or any witness that made statements to the police and the government wants to introduce such statements against your client, be sure to realize that YOU can challenge the statements if there is a basis to believe that the statements were not the product of the person's free will.
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United States v. Williams,
No. 04-50182 (9th Cir., January 30, 2006): Miranda winner based upon the recent Supreme Court case of Missouri v. Siebert, 542 U.S. 600 (2004) which invalidated the procedure used by cops where they intentionally fore-go Miranda warnings, obtain a confession, and then Mirandize to clean the confession. Siebert was a fractured opinion and this Ninth Circuit opinion dissects Siebert in fine detail, including all the nuances of the concurring and dissenting Justices. Very fine opinion on this issue and one you will want to read carefully if you have this issue.
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United States v. Lopez,
No. 04-1223 (10th Cir., February 21, 2006) (Published): Very nice winner in which the Circuit affirms the suppression of a confession in a murder case(!) Very nice facts involving coercion by FBI agents by promising leniency in exchange for cooperation and lying/exaggerating about the strength of the government's case (claiming gun residue test indicated guilt when the results were not known, saying there were six witnesses when there were only two). Very good discussion of the standards governing the admissibility of confessions. NOTE: this is a good example of how important it is to get a good ruling in the court below. If the District Court had denied the Motion to Suppress I think it is evidence that the Circuit would have affirmed that decision as well.
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United States v. Nichols,
No. 04-5020 (4th Cir., February 28, 2006): Beware! Statements made in violation of Miranda, if otherwise voluntary, may be admissible at sentencing in federal court. This opinion follows a similar decision by the Seventh Circuit.
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United States v. Ollie,
No. 05-2503 (8th Cir., March 31, 2006): Miranda winner! Solid Miranda case where the Circuit analyzed aspects of custody and the question-first Mirandize later procedure found unconstitutional in Missouri v. Siebert. As to the issue of custody, the Court found that a parolee who was advised by his probation officer to go talk to the police about a crime was in custody since refusal would open the parolee to revocation. At the actual interview, the cop did not read the Miranda warnings until after he obtained a confession. The Circuit analyzed the Siebert and the subsequent cases and held that when a defendant moves to suppress statements taken in a "question first" interrogation, the government bears the burden of proving by a preponderance of the evidence that the failure to advise the suspect initially of his rights was not part of a deliberate attempt to circumvent Miranda.
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Van Hook v. Anderson,
No. 03-4207 (6th Cir., April 18, 2006): Miranda winner! Straightforward winner in a capital habeas case on self-incrimination grounds when police interrogated Van Hook anew after he had invoked his right to counsel in violation of Edwards v. Arizona, 451 U.S. 477 (1981). The panel held that Van Hook's statements should have been suppressed and that the error was not harmless.
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Lee v. Crouse,
No. 04-8116 (10th Cir., June 13, 2006) (Published): Interrogations/Fifth Amendment: Lengthy, split-decision in a state habeas case where Crouse plead guilty to sexual assault but at sentencing he declined to take a psychological test to determine future dangerousness. The trial judge drew adverse inferences from this denial and enhanced the sentence over his objection that the Fifth Amendment prevented the court from doing so. Habeas corpus is a different animal, and the question is whether this action by the state court was a violation of clearly established law. Judge Briscoe hates criminal defendants in any event, so the holding was unsurprising after a canvass of the case law: "Considering [the case law], we conclude it remains unanswered by the Supreme Court whether a sentencing court in a non-capital case may, for purposes other than determining the facts of the offense of conviction, draw an adverse inference from a criminal defendant's refusal to testify or cooperate." Thus, no relief.
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United States v. Carrizales-Toledo,
No. 05-2308 (10th Cir., July 20, 2006) (Published): Interrogations/Fifth Amendment: This border traffic-stop involves two issues: standards of border PC to stop and Miranda warnings. The discussion concerning the legality of the traffic stop did not appear to be in doubt and the panel held the stop was lawful. The more interesting discussion concerned the Miranda issue and an interpretation of the Supreme Court's Seibert opinion. The officer stopped the truck, drew down on Toledo, and asked him what he was doing. Toledo replied that he was trying to get back to Mexico because he did not want the police to catch him with all the marijuana. He was taken to the border patrol station where the Miranda warnings were read to him and he made more incriminating statements. The panel noted the difficulty in determining the Supreme Court's holding in Seibert but held that the second interrogation and Miranda warnings were effective and therefore his statements were admissible.
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United States v. Brownlee,
No. 04-4134 (3rd Cir., July 18, 2006): 1. Eyewitness ID/Line-Ups; 2. Interrogations/Fifth Amendment: Very instructive case in which a carjacking conviction was reversed and remanded for new trial on the basis of the District Court's exclusion of the defendant's expert testimony concerning eyewitness identifications and old-fashioned interrogation of the accused without Miranda warnings. The defense at trial was mistaken identity by the eyewitnesses.
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United States v. Pettigrew,
No. 05-2187 (10th Cir., July 27, 2006) (Published): Interrogations/Fifth Amendment: Novel Miranda issue where a suspect in a DUI-Manslaughter case was in custody and questioned in violation of Miranda but then subsequently made a third, unsolicited, statement that was voluntary. HELD: The "fruit of the poisonous tree" doctrine does not preclude it and the panel joined the Seventh and Ninth Circuits in holding that the admissibility of an unsolicited inculpatory statement, following a voluntary statement made in violation of Miranda, turns on whether the inculpatory statement was knowingly and voluntarily made.
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United States v. Brathwaite,
No. 05-10384 (5th Cir., July 31, 2006): Interrogations/Fifth Amendment: Old fashioned Miranda winner where police arrested Brathwaite during a sting and at the scene asked him, "Where are the guns?" No warnings were given and he told the police where the guns were stored in his house. NOTE: Only the statements are suppressed; the guns are not per recent SCOTUS authority.
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United States v. Pettigrew,
No. 05-2187 (10th Cir., October 12, 2006) (Published): Interrogations/Fifth Amendment: Pettigrew was convicted by jury of involuntary manslaughter and other counts stemming from a drunk-driving accident. The Circuit had originally affirmed, but in this case, the Circuit granted rehearing to address certain sentencing issues and affirmed again. The prior opinion addressing the Miranda issue (allowing his statements) remains intact (holding that a third inculpatory statement, voluntary in fact, is admissible when the statement was unsolicited and followed a voluntary statement made in violation of Miranda).
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Jackson v. State,
2006 OK CR 45 (Okl.Cr., November 2, 2006): Death Penalty; State Cases and Interrogations/Fifth Amendment: Capital case out of Tulsa, from a re-trial, in which Jackson was convicted of Murder in the First Degree, Arson in the First Degree, and Injury to a Minor Child. He was sentenced to death on the principal charge and the Court affirmed in this opinion over several claims including: 1) jurors talking about the case during voir dire; 2) a Miranda issue in which the Court recognized a "rescue doctrine" exception to the Miranda rule, similar to the public safety exception recognized by the Supreme Court (in Jackson's case, police asked about the whereabouts of a minor child who was missing); 3) failure to give lesser-included instructions; 4) various penalty phase instruction claims; 5) sufficiency of the evidence regarding aggravators ("avoid arrest" and "great risk of death to more than one person"); 6) various evidentiary rulings; 7) the introduction of victim impact evidence; 8) vagueness of the aggravators; and 9) cumulative error.
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Van Hook v. Anderson,
No. 03-4207 (6th Cir., May 24, 2007) (en banc): Interrogations/Fifth Amendment: Supreme Court precedent holds that, once a suspect asks for a lawyer, the police must cease questioning until either a lawyer is provided or the suspect himself initiates further discussion with the police. What if the police talk to the mother of the suspect and she tells them that the suspect wishes to speak to them? Can the police go back to the suspect and initiate a discussion without counsel? In this fractured, en banc, opinion the Sixth Circuit holds that the police can indeed approach the suspect under those circumstances.
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Cuervo v. State,
No. SC06-1156 (Fla., July 12, 2007): Interrogations/Fifth Amendment: Old fashioned Miranda winner where Cuervo was questioned by the police, said (in Spanish) that he did not want to say anything, but the cops continued to question him. The court held that the Miranda violation itself compelled suppression even in the absence of actual coercion and that the error was not harmless. NOTE: This was a 4-3 opinion with a spirited dissent drawing a sharp distinction between a suspect invoking his right to remain silent versus his right to counsel. I do not like this case because it appears to be a good certiorari candidate to me and I do not think the Supreme Court will treat the defendant well if it takes the case.
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United States v. Mittel-Carey,
No. 06-1960 (1st Cir., July 11, 2007): Interrogations/Fifth Amendment: Another Miranda winner where the FBI served a warrant at a residence and questioned one of the occupants without administering Miranda. The District Court ordered the statements suppressed and the Circuit affirmed, holding that even though the suspect was at home, he was still in "custody" under the facts of the case.
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United States v. Lafferty,
No. 06-1901 (3rd Cir., September 28, 2007): Interrogations/Fifth Amendment: Lengthy opinion reversing an order denying a motion to suppress statements made during a custodial interrogation. An ATF agent called Lafferty and her boyfriend to arrange an interview about a recent burglary in the area. Both Lafferty and the boyfriend agreed to go to the police station to be interviewed. Agents presented Lafferty with a waiver form and she signed it. She was questioned for four hours about the burglary (guns were stolen) but she did not respond to most of the questions and when she did respond she denied any involvement. Eventually, Lafferty told the agent she was "dope sick" (experiencing withdrawals from not having used heroin for three days) and asked to leave. She was allowed to leave. She was arrested later on unrelated warrants and questioned again; and again signed the waivers. However, after some questioning, she said, "If you're going to charge me, charge me. I'm not going to sit here for four to five hours like last time." Thereafter, when the boyfriend wanted to meet with her in private she was transported with him to the station where they both made statements. The panel held that the police did not scrupulously observe her right to remain silent; and also that the trial court erred in allowed the boyfriend's statements as adoptive admissions.
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Mann v. State,
2007 OK CR 37 (October 30, 2007): Interrogations/Fifth Amendment: NOTE: The name of this case should be Blanton v. State. It looks like a typo by the Court to title the case Mann v. State, since the Appellant's name is Mann Shockley Blanton. I will use Mann to refer to the appellant. Mann was convicted of Rape in the First Degree in Carter County and sentenced to 50 years. While Mann was in the county jail, a DHS worker interviewed him about the allegations as part of a parallel DHS "child protection" investigation. The DHS worker did not Mirandize Mann before questioning him at the jail. The trial court allowed admission of the statements on the basis that the DHS worker was not a law enforcement officer. The Court of Criminal Appeals disagreed and held that the DHS worker is a law enforcement officer for Miranda purposes. Thus, the statements made by Mann to the DHS worker were inadmissible. Unfortunately for Mann, the Court held that the statements were not material to the conviction, but were material to the sentence. Thus, the conviction is affirmed, but his sentence was modified to 35 years.
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United States v. Revels,
No. 06-5223 (10th Cir., December 20, 2007) (Published): Interrogations/Fifth Amendment: This is a refreshing case from the circuit holding that Revels was in "custody" for Miranda purposes, she was not given the warnings, and thus the District Court was correct in suppressing her statements (Senior Judge Cook in the Northern District at Tulsa). This case is similar to Colonna out of the Fourth Circuit, featured below. Police executed a search warrant at a home wherein Revels lived with her boyfriend and two infant children. When the police raided the home, Revels was in her underwear. After ransacking the home for a while, they allowed her to dress and care for the children (one of whom required feeding through a tube in his stomach). After about 30 minutes, Revels and the boyfriend were separated and interviewed. No warnings were given and Revels made incriminating statements. Once she was arrested and transported to the police station, she was given warnings and asserted promptly her right to counsel. The panel held: "Taking the totality of the circumstances into account, we conclude that a reasonable person in Revels' position would have considered herself under a degree of restraint equivalent to formal arrest and that officers should have extended Miranda advisements prior to their questioning. The undisputed facts demonstrate that the officers' actions created the type of coercive environment that Miranda was designed to address."
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United States v. Colonna,
No. 06-5237 (4th Cir., December 20, 2007): Interrogations/Fifth Amendment: This is a solid Miranda winner where federal agents (23 of them!) executed a search warrant at a home where child porn was traced via computer (another file-sharing case). Colonna lived in the upstairs of a large home. Agents woke everyone up while they searched and eventually directed Colonna to a car where they told him he was not under arrest but questioned him about the child porn. The District Court denied the motion to suppress his statements but the panel reversed on the basis that, notwithstanding the fact that agents told Colonna he was not under arrest, a reasonable person in his position would have felt his freedom was curtailed to a degree associated with a formal arrest.
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United States v. Chee,
No. 07-4057 (10th Cir., January 29, 2008) (Published): Interrogations/Fifth Amendment: Chee, a Navajo "medicine man," was convicted of one count of Aggravated Sexual Abuse While Within Indian Country and sentenced to 253 months (he was acquitted of two other counts of the same). AFFIRMED over claims that his confession violated Miranda (he was not "in custody" even though he confessed at the police station since he was told he was free to leave at any time and not under arrest) and the application of sentencing enhancements as a result of use of force, vulnerable victim, and abusing a position of trust.
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Anderson v. Terhune
No. 04-17237 (9th Cir., February 15, 2008) (en banc): Interrogations; Fifth Amendment: In this habeas case, the Ninth Circuit en banc vacates a murder conviction on the basis that the state court unreasonably applied federal law by allowing police to continue questioning Anderson when he had twice made statements indicating that he did not want to answer questions and then said, "I plead the Fifth." The California Court of Appeals held that this statement was ambiguous(!) The Circuit basically ridicules the state appellate court in this regard and grants the writ.
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United States v. Burson,
No. 07-2197 (10th Cir., July 11, 2008) (Published): Interrogations/Fifth Amendment: Burson, high on meth, was arrested and jailed on drug and firearms charges. After sitting a few hours in jail, but still high, he asked to speak to the arresting officer who, of course, obliged and asked Burson if he remembered receiving the Miranda warnings. Burson said he did and then proceeded to slip his neck in the noose. The issue in this appeal was whether Burson's meth high was enough to render his Miranda waiver knowing and voluntary. The panel held that it was not and issued an opinion illustrating just how high an evidentiary burden an accused has in making such a claim. AFFIRMED.
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United States v. Craighead,
No. 07-10135 (9th Cir., August 21, 2008): Interrogations/Fifth Amendment: The panel confronted this issue of first impression in the circuit: Under what circumstances under [sic] the Fifth Amendment does an interrogation by law enforcement officers in the suspect's home turn the home into such a police-dominated atmosphere that the interrogation becomes custodial in nature and requires Miranda warnings? HELD: Although the inquiry is fact-intensive, "we conclude that several factors are relevant to whether the circumstances of Craighead's interrogation effected a police dominated atmosphere: (1) the number of law enforcement personnel and whether they were armed; (2) whether the suspect was at any point restrained, either by physical force or by threats; (3) whether the suspect was isolated from others; and (4) whether the suspect was informed that he was free to leave or terminate the interview, and the context in which any such statements were made." In this case, the panel held that the atmosphere was police-dominated and REVERSED the denial of suppression of the statements.
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United States v. Rivas-Macias,
No. 06-2274 (10th Cir., August 25, 2008) (Published): 1. Right to Present a Defense; 2. Interrogations/Fifth Amendment: Rivas-Macias was convicted of Conspiracy to Possess w/Intent 500 Grams or More of Cocaine, and also the substantive charge. Rivas-Macias attempted to call a co-conspirator as a witness after the co-conspirator had plead guilty and debriefed the government, but before sentencing. The co-conspirator invoked the Fifth and refused to testify and the District Court did not compel his testimony. HELD: AFFIRMED because pleading guilty does not waive Fifth Amendment rights, nor did the unsworn statements to the FBI. Also, the District Court did not sua sponte err in failing to continue the case until after the sentencing of the co-conspirator (no plain error).
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Smiley v. Thurmer,
No. 07-2901 (7th Cir., September 5, 2008): 1. Interrogations/Fifth Amendment; 2. Habeas Corpus: Habeas winner in a murder case (non-capital) on a Miranda issue is AFFIRMED by the panel.
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United States v. Green,
No. 06-2468 (3rd Cir., September 2, 2008): 1. Hearsay; 2. Interrogations/Fifth Amendment: Green was convicted by jury of one count of Distribution of More Than 50 Grams of Cocaine Base and sentenced to 151 months. REVERSED on the basis of the admission of a prior statement of a CI that was introduced as a "present sense impression" under Rule 803(1). The panel reversed on another basis as well, the fact that the government made reference to Green's custodial responses. "In particular, at issue is the prosecutor's questions and statements pertaining to the fact that after being placed under arrest and while in DEA custody, and after being shown a videotape which supposedly depicted him selling drugs, Defendant widened his eyes, asked for the video to be replayed, and then sighed and hung his head." The panel viewed the actions of the agent of showing Green the tape as the functional equivalent of an interrogation. Notably, the DEA Agent testified that he intentionally did not read Miranda prior to showing Green the tape because he was concerned that Green might ask for a lawyer. NOTE: The Miranda issue is a plain error winner.
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State v. Powell,
No. SC07-2295 (Fla., September 29, 2008): Interrogations/Fifth Amendment: Interesting Miranda winner in which the standard Miranda card used by the Tampa Police Department was held invalid because it did not explicitly state that Powell had the right to have an attorney present during questioning. NOTE: It might be a good idea to check the Miranda cards used by your local jurisdiction and compare them to the one used in this case (it is set forth verbatim in the opinion).
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United States v. Pacheco-Lopez,
No. 07-5408 (6th Cir., June 26, 2008): Interrogations/Fifth Amendment: Instructive opinion and Miranda winner where the police used the "booking exception" to the Miranda rule as an investigative tool. Not only did the questioning go too far, the cops also administered Miranda-in-the-middle of the unlawful interrogation and the post-Miranda statements were suppressed as well.
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United States v. Rodriguez
No. 07-10217 (9th Cir., March 10, 2008): Interrogations/Fifth Amendment: Instructive case involving the rule of Davis v. United States which held that police are not required to stop questioning when a suspect makes equivocal or ambiguous assertions of his right to remain silent. In this case, the panel held that the "clear statement" rule of Davis applies only after police obtain an unambiguous waiver of Miranda. This is a very good case and a subtle distinction that may arise in our cases.
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United States v. Jones
No. 07-4141 (10th Cir., April 23, 2008) (Published): Interrogations/Fifth Amendment: Federal agents sought to question Ms. Jones about her recent purchase of iodine crystals (suspecting that she was involved in meth manufacturing). After a few unsuccessful attempts to talk to her, they followed her from court (where she was on an unrelated matter) to a gas station/convenience store. The agents were in unmarked cars and plain clothes. When Jones emerged from the store with a drink and a snack, one of the agents who was leaning against the hood of his car called her by name. The encounter continued with the agent requesting her to sit in his car and talk. She did so and ended up making incriminating statements. HELD: Denial of her motion to suppress is AFFIRMED because she was not "in custody" for purposes of Miranda.
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