Miranda Violation Does Not Automatically Make Consent to Search Involuntary

United States v. Gonzalez-Garcia, No. 11-41365 (Higginbotham, Smith, Elrod)

Federal agents were surveilling a suspected drug house when they saw Gonzalez-Garcia leave from the house. Agents approached him and asked if he was in the country legally. He admitted that he was not, and the agents arrested him. The agents never read Gonzalez-Garcia his Miranda rights but questioned him about the drug activity in the house. Gonzalez-Garcia responded to some questions but eventually requested a lawyer. Soon after the request for a lawyer, an agent asked him if he would consent to a search of the house. The agent spent 5 to 7 minutes seeking permission to search, which Gonzalez-Garcia eventually gave. Agents found 2043 kilograms of marijuana in the house.

The district court suppressed Gonzalez-Garcia’s statements about the drug activity in the house because they were obtained in violation of Miranda, but the court did not suppress the marijuana found in the house. Gonzalez-Garcia pleaded guilty conditionally and appealed the denial of his suppression request.

The panel first notes that a violation of the prophylactic Miranda rule does not require suppression of the nontestimonial physical fruits of the suspect’s unwarned but voluntary statements. "Because the marijuana seized is physical, nontestimonial evidence, an Edwards violation [questioning after he asked for a lawyer] itself would not justify suppression."

The panel then addressed whether the Miranda violation rendered Gonzalez-Garcia’s consent to search involuntary. The panel held that a categorical rule that consent is coerced whenever police use an unwarned statement to obtain consent is inconsistent with the multi-factor approach to assessing voluntariness endorsed by the Supreme Court. In other words, Gonzalez-Garcia’s "consent was not automatically involuntary merely because his Miranda rights were violated." Since Gonzalez-Garcia did not otherwise argue that the consent was involuntary, the panel affirmed the judgment of conviction.

Fives Affirm Suppression of Un-Mirandized Statements Made In Response to Interrogation During Execution of Search Warrant at Suspect's Home

United States v. Cavazos, No. 11-50094 (5th Cir. Jan. 19, 2012) (Benavides, Prado, Alvarez, D.J.)

Following Cavazos's successful motion to suppress un-Mirandized statements he made in response to interrogation during the execution of a search warrant at his home, the Government took an interlocutory appeal. It argued that Miranda warnings weren't required because Cavazos was not in custody when he was interrogated, relying on the facts that the interrogation took place in Cavazos's home and that the interrogating agents told Cavazos it was a "non-custodial interview."  The Court disagreed:

Here, the totality of circumstances, drawn from the record as seen in the light most favorable to Cavazos, indicates Cavazos was in custody at the time he made his incriminating statements. Just after 5:30 a.m., Cavazos was awakened from his bed, identified and handcuffed, while more than a dozen officers entered and searched his home; he was separated from his family and interrogated by two federal agents for at least an hour; he was informed he was free to use the bathroom or get a snack, but followed and monitored when he sought to do so; and he was allowed to make a phone call, but only when holding the phone so that the agents could overhear the conversation. An interrogation under such circumstances, and those others discussed above, would lead a reasonable person to believe that he was not “at liberty to terminate the interrogation and leave,” notwithstanding the fact that the interrogation occurred in his home and he was informed the interrogation was “non-custodial.”

(internal cite snipped).

An Important Lesson On Error Preservation, An Open Miranda Question, and Knowledge of Interstate Movement in FIP Cases

United States v. Potts, No. 10-10257 (5th Cir. June 15, 2011) (Smith, DeMoss, Owen)

A general rule of preserving error at trial (which I'm shamelessly stealing from someone else) is to keep asking for things until the court says no. Failure to do so, as Potts illustrates, lands you in the dark realm of plain error review.  Not a good place to be when, as in Potts, the question of whether there was error at all concerns an issue that remains open in the Fifth Circuit. Oh, and one more thing: to be guilty of being a felon in possession of a firearm, need a defendant know that the firearm had moved in interstate commerce? Important issues all.

So what happened here? Potts was stopped by Officer James (for reasons that aren't at all clear to me from the opinion). Thence,

James instructed Potts to park the car and shut off the engine. Potts began to reach under his seat, at which point James ordered Potts to show his hands. Potts did not immediately comply with that command and instead continued to reach under the seat. James approached the vehicle and ordered Potts to exit the car. Potts complied, and James was able to see that a firearm was protruding from under Potts’s seat.

James examined the firearm, handcuffed Potts, and sat him down on the street curb. James then asked Potts whether the gun belonged to him, but Potts did not respond. A search was conducted of the car, which yielded two additional firearms and some ammunition. Potts was then arrested.

(emphasis added). "At trial, the prosecution elicited testimony from James regarding Potts’s silence after being asked who owned the pistol." Potts objected to the testimony as a Fifth Amendment violation. The court did not rule on the objection, but suggested that it could instruct the jury that Potts had no obligation to answer the officer's question and that it's not against the law to do so. Potts agreed to the instruction, which the court then gave. "Potts did not reassert his objection to the testimony, object to the instruction, or move for a mistrial." When the prosecutor brought up Potts' silence again in closing argument, "Potts objected, not on any Fifth Amendment ground but on the ground that the prosecution was attempting to shift the burden of proof." The jury found Potts guilty.
 
On appeal, Potts argued first "that the government violated his Fifth Amendment right against self-incrimination by referencing, during trial, his silence in response to police questioning[.]" The court reviewed for plain error, because an objection alone was not sufficient to preserve the issue.

In Salinas, 480 F.3d at 755, we held that plain-error review was appropriate for a Fifth Amendment claim even though defense counsel “timely objected to each of the prosecutor’s references to [the defendant’s] post-arrest silence,” because “the trial court sustained all of those objections, and the trial court’s instructions to the jury made it clear that the jury was not to consider any of the challenged remarks.” Furthermore, we remarked that the defense “never took exception to the district court’s handling of his objections and, significantly, . . . never requested that the district court declare a mistrial.” Id. at 755-56. Plain error review was appropriate, because the defendant “effectively received all of the relief that he requested from the district court.” Id. at 756.

Salinas is not directly controlling, because the court did not explicitly sustain Potts’s objections, but the principles of Salinas inform us. As with the defendant in Salinas, Potts never raised any concerns with how the district court chose to handle his objection, and Potts explicitly agreed to the court’s proffered curative statement.

(emphasis added). Potts argued that the district court had implicitly overruled his objection, but the court of appeals didn't buy it:

Potts objected to testimony regarding his silence. The district court then offered a curative instruction, which Potts accepted. By accepting the instruction, Potts failed to obtain a definitive ruling on his objection—there was no implicit overruling, but rather no ruling at all. Following that failure to obtain a ruling, Potts accepted the court’s curative instruction without objection, thus failing to preserve error.

And that was a problem. Potts couldn't satisfy the second prong of plain-error review—that any error be clear or obvious— because the Fifth Circuit "has yet to address conclusively whether the use of pre-Miranda silence as substantive evidence of guilt is a Fifth Amendment violation."
 
On to Potts' next argument, the travelling gun one:

Potts contends that the government was required to prove, but did not, that he knew the firearm had traveled in interstate commerce. Potts was convicted pursuant to 18 U.S.C. § 922(g)(1)and sentenced pursuant to 18 U.S.C. § 924(a)(2). He argues that the word “knowingly” in § 924(a)(2) requires the government to prove that every element in § 922(g)(1), including that the firearm had traveled in interstate commerce, was known by the defendant.

That argument, however, is foreclosed by United States v. Rose, 587 F.3d 695 (5th Cir. 2009). There, the defendant raised the same argument as Potts does here, but we rejected it because the defendant had not been sentenced under § 924(a)(2). Id. at 705-06. Rather, he was sentenced under § 924(e)(1), which does not contain a “knowingly” requirement. We went on, however, to state that “[e]ven assuming arguendo that the ‘knowingly’ requirement in § 924(a)(2) applied throughout that section, there would be no corresponding impact on the elements of a crime listed in § 922(g)(1).” Id. at 706 n.9. That statement in Rose was not mere dictum; rather, it was an alternate holding that carries the force of precedent. Thus, Potts’s claim fails.

New Book: False Confessions "A Systemic Feature of American Criminal Justice"

Via Grits for Breakfast, we see that Anne Reed at Deliberations is highlighting a new book by University of San Francisco law professor Richard Leo, entitled Police Interrogation and American Justice. According to the book,

[t]he problem of false confession is not limited to a small number of cases. These studies reveal that false confessions are therefore not an anomaly but a systematic feature of American criminal justice, despite procedural safeguards such as Miranda rights and a constitutional prohibition against legally coercive interrogation techniques. . . . Unless police change their procedures for selecting suspects and their interrogation practices, false confessions will continue to occur regularly.

Per Reed, "Leo narrates the development of increasingly sophisticated techniques of police interrogation, techniques that manage to break down a defendant's psychological defenses and build a detailed and compelling story for the jury at the same time."

So if you can lay your hands on a copy, the book may provide valuable background information you can use to prepare for cross-examinaning the agents who interrogated your client, and for countering prosecution arguments that focus on a supposedly damning confession. It may also be chock full of useful fodder for attacking relevant conduct enhancements that are based on nothing more than a statement the defendant allegedly made during post-arrest interrogation.

If you don't feel like shelling out the dough for Professor Leo's book (which Harvard University Press appears to be quite proud of, if the $45 list price is any indication), Volokh Conspirator Orin Kerr helpfully points us to a free article covering similar ground:

Berkeley lawprof Charles Weisselberg has posted a fascinating new draft article, Mourning Miranda, on how the police in California currently implement the Miranda warnings. Weisselberg looks closely at how police officers in California are trained to conduct interrogations, and he concludes that the police interpret Miranda to let them do many of the things that the U.S. Supreme Court found objectionable in 1966 that led the Court to create the Miranda framework.

Although Professor Weisselberg's article is focused on the California fuzz, many of the interrogation techniques he describes in detail are apparently used by law enforcement agencies around the country.

Prosecutor's Use of Defendant's Post-Arrest, Pre-Miranda Silence as Substantive Evidence in Case-In-Chief Not Plain Error

United States v. Salinas, No. 05-10964 (5th Cir. Mar. 5, 2007) (Garwood, Dennis, Owen)

From the "damned-if-you-do, damned-if-you-don't" files:

A police officer pulled over Salinas for driving a vehicle with a defective tail light, and asked for his license and proof of insurance. Salinas gave the officer his driver's license, but "stated that he did not have proof of insurance because he was in the process of purchasing the vehicle." The officer arrested Salinas for not having proof of insurance. Other officers on the scene searched the vehicle and found two loaded handguns and roughly $3,500 in cash. A search of Salinas's jacket at the police station turned up another $2,168 in cash. The arresting officer never Mirandized Salinas, and Salinas evidently kept silent in the immediate aftermath of his arrest.

Salinas was eventually charged with being a felon in possession of a firearm. At trial, the prosecutor made three different references to Salinas's post-arrest silence during its case-in-chief:

First, during the prosecution’s opening argument, the prosecutor stated, “At no time, at no time, the evidence is going to show, that the defendant denied ownership of the money or guns.” Defense counsel immediately objected to that remark. The court sustained the objection and reminded the jury that it was to render its verdict only on the basis of the evidence presented, not on the arguments of counsel.

Second, during the government’s examination of Officer Fulcher, who arrested Salinas and who was with Salinas at the Carrollton police station when the firearms were discovered in the Yukon, the prosecutor asked Officer Fulcher “how, if at all” Salinas reacted when he heard that firearms had been found in the Yukon. Defense counsel objected before the witness could answer, and the court sustained the objection.

Third, later in its direct examination of Officer Fulcher, the prosecution asked Officer Fulcher whether Salinas made any statements after his arrest. Officer Fulcher answered, “No, sir.” Defense counsel again objected, and the court sustained the objection. Defense counsel also requested that the jury be instructed to disregard the statement. The trial judge stated that he would not then instruct the jury, but would consider an instruction at a later time. Defense counsel apparently never reiterated his request for an instruction. In its charge to the jury, however, the court instructed the jury that the statements and arguments of the lawyers could not be considered as evidence and that the jury was to disregard any question to which the court had sustained an objection.

Slip op. at 7-8. The jury convicted Salinas, and the district court sentenced him to 57 months' imprisonment.

On appeal, Salinas challenged the prosecution's use of his post-arrest silence. The court reviewed for plain error because, although Salinas objected each time the prosecution referred to his post-arrest silence, he never took issue with the way the district court handled the objections and never asked for a mistrial. The court went on to consider two possible rights violations: due process and the privilege against self-incrimination.

The court held that there was no due process violation in the prosecutor's use of Salinas' post-arrest, pre-Miranda silence. Because there's no Supreme Court due process precedent involving the precise scenario here, the court extrapolated from the cases involving the use of pre- and post-Miranda silence for impeachment purposes. Doyle v. Ohio held that the latter is generally verboten because the Miranda warnings implicitly assure a defendant that his silence will not be used against him. On the other hand, Fletcher v. Weir and Jenkins v. Anderson held that use of pre- or post-arrest, pre-Miranda silence doesn't implicate the same fundamental fairness concerns that motivated the Court's holding in Doyle because the defendant's silence hasn't been induced by any action on the part of the government. So according to the court, "Fletcher's emphasis on the affirmative assurances of Miranda warnings [make it] clear that, irrespective of whether the defendant testifies at trial, the rationale of Doyle applies only to post-Miranda silence." Slip op. at 15.

Plain error review allowed the court to avoid deciding the self-incrimination issue one way or the other. There's no Fifth Circuit precedent directly on point, and there's a longstanding split of authority among the circuits that have addressed the question. Consequently, "[b]ecause this circuit’s law remains unsettled and the other federal circuits have reached divergent conclusions on this issue, even assuming that the prosecutor’s comments were improper, Salinas cannot satisfy the second prong of the plain error test—that the error be clear under existing law." Slip op. at 19.