Search of Lost Cell Phone

Transcription

1 Search of Lost Cell Phone In this issue: Miranda No Means No Miranda and Misstatements of the Law Miranda at Traffic Stops I have a lawyer. Legal Eagle Published by: Office of the State Attorney West Palm Beach, FL B. Krischer, Editor Alan Johnson and Jennifer Sparks left their cell phone at a Walmart store. But this wasn t just any cell phone; this phone stored hundreds of images and videos of child pornography that they had made using a friend s four-year-old child. They later learned (by sending a text to the phone) that Linda Vo, an employee of that Walmart, had found it and that she agreed to return it. Vo decided to look at the contents of the phone, which were not passwordprotected, after speaking with Sparks and before actually meeting her. Upon discovering the images of child pornography, and after showing the images to her fiancé, David Widner, Vo resolved not to return the phone. Instead, unbeknownst to Defendants, Vo and Widner arranged for it to be turned in to law enforcement. When Vo failed to meet Sparks with the phone as the two had previously agreed, both Defendants knew how to find her to get their phone back. But Defendants did not return to the Walmart store and look for Vo. Nor did they ask for Walmart s assistance in obtaining their phone, found in its store, by its employee. They also did not file a report with Walmart or the police complaining that Vo would not return their phone, despite their requests. Instead, they made a conscious decision to stop pursuing the phone, even though they knew how to get it back with reasonable effort. To the contrary, an insurance claim was made, and a replacement phone purchased with the proceeds. That decision whether because Defendants hoped that Vo would not report them if they did not continue to seek to recover the phone or because Defendants simply thought recovery of the phone was not worth their reasonable effort was viewed by the courts as a deliberate decision to abandon the phone. Widner took the phone to the Police Dept. where two Community Service Aides reviewed the thumbnail images and agreed the phone should be directed to the Detective Bureau. While CSAs are civilians, for purposes of Fourth Amendment analysis, they are treated as government officials, subject to the 4 th Amendment. Det. O Reilly then reviewed the same set of images Widner had showed to the Aides. Based on his view the phone was sent to Cape Coral PD, as that is where the Walmart store was located. The phone was then given to Agent Enterline who had been assigned to the Federal Bureau of Investigation s Innocent Images Task Force. Because of her training schedule there Legal Officers Eagle should consult with their agency advisors to confirm 1 the interpretation provided in this publication January and to 2016 what extent it will affect their actions. Past issues of the Legal Eagle are available at //SA15.org under Resources.

2 lar information has been frustrated by a private individual, the Fourth Amendment does not prohibit law enforcement s subsequent use of that same information, even if obtained without a warrant. As a result, a warrantless law-enforcement search conducted after a private search violates the Fourth Amendment only to the extent to which it is broader than the scope of the previously occurring private search. Johnson and Sparks maintain that the warrantless search of the cell phone conducted by Det. O Reilly violated their Fourth Amendment rights. Specifically, they argue that the government failed to establish that the images observed by O Reilly which formed the basis for, and led to the issuance of, the search warrants, were the same as the prior search that Vo and Widner conducted. As a result, Johnson and Sparks contend, all of the evidence that was obtained by executing the warrants should be suppressed. Court s Ruling: The 11 th Circuit found the testimony transcripts supported the trial court s ruling. With regard to the scope of the search performed by O Reilly, the [trial] court concluded that O Reilly observed images contained within the same photo album that Widner had already viewed in its entirety. Nothing in the record contradicts this conclusion or even casts aspersions on it. To the contrary, O Reilly specifically testified that he looked at only those images contained in a single photo album, and his description of the thumbnails of the photos contained in that album matched the contents of the album that Widner had viewed. The district court s factual findings are amply was a 23 day delay before she applied for a search warrant for the cell phone. Once the warrant was granted and a forensic examination of the phone performed the name of the owner as well as 1,322 sexually explicit images that constituted child pornography were recovered. Based upon that find a second search warrant for the defendants home was executed and an additional 508 sexually explicit images were found. The defendants filed a motion to suppress the evidence as based on an unlawful search of the phone prior to the warrant application. Additionally, they argued the 23 day delay violated their property rights. The trial court denied the motions. The U.S. Court of Appeals agreed with that ruling. Issue: Was the limited police review of the cell phone content (images) without first obtaining a search warrant violative of the Fourth Amendment? No. Did the inordinate delay in applying for the warrant adversely affect the defendants property rights? Under these particular facts, No. Private Search Doctrine: The Fourth Amendment provides that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. The protection the Fourth Amendment affords, however, extends to governmental action only; it is wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official. United States v. Jacobsen (S.Ct.1984). Thus, once an individual s expectation of privacy in particusupported by the record, To the extent that O Reilly viewed the second video, which was stored within the same album that Widner had scrolled through but which Widner did not view, we agree with Johnson and Sparks that O Reilly exceeded the scope of Widner s private search. But we nevertheless conclude that the error had no effect on the state court s determination of probable cause supporting the issuance of the two search warrants [based on the thumbnail images]. We therefore affirm the district court s denial of Defendants motions to suppress. The affidavit supporting the search of the phone allowed the court to find probable cause. It described photographs of naked men, women, and children, including close-ups of private body parts, and culminated in a description of a photo that focused on a young child s naked vagina and stomach, covered in a fluid that appeared to be semen. This was more than enough to allow a judge, relying on common sense, to determine that it was fairly probable that the phone contained evidence of images depicting a sexual performance by a child, in violation of Fla. Stat An issuing judge need not personally view photographs or images which are alleged to be contraband if a reasonably specific affidavit describing the contents can provide an adequate basis to establish probable cause. See, New Y ork v. P.J. Video, Inc., (S.Ct.1986). The descriptions here were not vague conclusions that the phone contained images of child pornography; they objectively and specifically stated the contents of the photos, and [Det.] Enterline swore to these descriptions under oath. Legal Eagle 2

3 Indeed, Sparks does not challenge the descriptions as inaccurate; she complains instead that the judge who issued the warrant did not personally view the photos. But the affidavit s descriptions, in and of themselves, established the childpornographic nature of the images. Because the descriptions independently demonstrated probable cause for possession of child pornography, the judge was not required to actually look at the photos. As to the defendants claim that the unreasonable delay in applying for the search warrant interfered with their property rights, the Court of Appeals found that they had abandoned the cell phone and thus forfeited their rights with regard thereto. If, after seizing an item, law enforcement unreasonably delays obtaining a warrant to search the item, a reasonable seizure can become unreasonable. United States v. Mitchell, (11th Cir. 2009). Usually, the reasonableness determination will reflect a careful balancing of governmental and private interests. Law enforcement must not unreasonably delay in obtaining a search warrant after seizing an item to be searched. We demand expediency in obtaining a search warrant to search seized evidence in order to avoid interfering with a continuing possessory interest for longer than reasonably necessary, in case the search reveals no evidence of a crime and the item has no independent evidentiary value and is not otherwise forfeitable. Under those circumstances, the searched item must be returned promptly so the person with the possessory interest can continue to enjoy that interest. As we have explained, In the ordinary case, the sooner the warrant issues, the sooner the property owner s possessory rights can be restored if the search reveals nothing incriminating. But if the person from whom the item was seized lacks a cognizable possessory interest in the item, that person s Fourth Amendment rights are not violated by even a lengthy period between seizure and the procurement of a warrant. That is so because any delay no matter the length cannot interfere with possessory rights that do not exist. It is settled law that one has no standing to complain of a search or seizure of property he has voluntarily abandoned. Lessons Learned: Clearly, where a civilian conducts a search independent of law enforcement which discloses contraband, that discovery can form the basis of a warrant application. However, law enforcement is constrained to the results of the civilian search and may not expand upon it to develop additional probable cause. Secondly, once personal property is seized as potential evidence requiring a search warrant, the application must be made promptly. The inordinate delay of 23 days in this case was the result of three different law enforcement agencies passing the case around, and then the assigned agent attending training seminars rather than expeditiously making a warrant application. But for the fortuitous actions of the defendants abandoning their cell phone that delay may have had significant negative constitutional repercussions for law enforcement. United States v. Johnson U.S. Court of Appeals 11th Cir. (Dec. 1, 2015) Building integrity and confidence through research and education. You can view this bulletin in color, with live links, at AELE is an extraordinary and unique resource, with free publications and online back issues since AELE has a searchable library of more than 35,000 case digests organized into indexed topics. There are no advertisements, tracking cookies or popups on our website. Users do not have to preregister and there is no time limit on research sessions. Contents of our online law library may be copied & pasted, saved or printed (except for commercial purposes). 1. New AELE Monthly Law Journal article: ** Attorneys' Fees in Prisoners' Civil Rights Lawsuits 2. The Jan issues of AELE s three periodicals have been uploaded. The current issues, back issues since 2000, case digests since 1975, and a search engine are FREE. Everyone is welcome to read, print or download AELE publications without charge. The main menu is at: Legal Eagle 3

4 From: Gallup.com, Social Issues, Dec. 21, 2015 Legal Eagle 4

5 Trust in the Police cont. Legal Eagle 5

6 Recent Case Law After Miranda - No Means No Francisco Garcia was brought into the police station for questioning about allegations that he had sexually molested his granddaughter. After the child had reported the abuse to her family she told Child Protective Services about the molestations. CPT then informed the police, and Detective Richard Beatty brought Garcia into the police station for questioning. After reading Garcia his Miranda rights and confirming that Garcia understood those rights, the officer asked, Now having those rights in mind, do you wish to talk to me? Garcia responded with a simple No. However, the detective did not stop there; rather he pressed on, asking, No? This time, Garcia elaborated: No, because I don t want to, I don t know what to what is these charges... and added, I don t want to, you know, say something or if if I don t know what s going on. At last, Garcia told the detectives he wanted to hear why he had been brought in. After advising him of the allegations Detective Beatty then asked, so is it my understanding right now that you do want to talk to me then? Garcia equivocated: Well, the the point... you know, again, uh, with all respect, you know, when you say you you have right to remain, you know... until you... get a lawyer. Detective Beatty then asked again whether Garcia wanted to talk, and Garcia finally agreed, saying, Yeah, we can talk, yeah, I guess, why not. At his subsequent trial, the court, over Garcia s objection, allowed the prosecution to play the three-and-ahalf-hour confession tape to the jury; and to read the letter of apology to his granddaughter that the detective suggested Garcia write. The California Court of Appeal determined that Garcia s No response was ambiguous and equivocal in light of other statements Garcia made during the interview. The court reasoned, Garcia indicated [that] his desire to remain silent was qualified based on his lack of knowledge or understanding concerning what charges or allegations had been made against him. The court thus held that the detective was free to continue questioning Garcia and rejected the Miranda claim. On subsequent appeal to the federal courts the U.S. Court of Appeals found the defendant s statements in clear violation of the Supreme Court s ruling in Miranda, and reversed the conviction. It is both contrary to and an unreasonable application of clearly established Supreme Court law and it is based on an unreasonable determination of the facts. Issue: After reading Miranda rights and asking, Do you want to speak to me? can a detective s clarifying questions to a No response transform that answer into an ambiguous and equivocal response? No. Right to Remain Silent: In Miranda v. Arizona, (S.Ct.1966), the Supreme Court held that whenever a criminal suspect is subjected to custodial interrogation, he must be advised of certain rights, including his right to remain silent. When the police fail to give the required warnings, the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant. When the police do give the warnings, the Court explained, the suspect has a right to cut off questioning that must be scrupulously honored. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease The Supreme Court has subsequently clarified that the suspect s right to cut off police questioning is triggered only when the suspect unambiguously and unequivocally asserts it, by invoking either the right to remain silent or the right to counsel. Thus, the Court has found that remaining largely silent during an interrogation, or saying Maybe I should talk to a lawyer, is not enough. When it is objectively unclear whether the suspect is invoking his Miranda rights, the police may continue to ask questions. However, these cases requiring clear and unequivocal assertion of the Miranda rights are not a license for the police or the courts to override a suspect s clearly expressed request to remain silent. A suspect Legal Eagle 6

7 need not speak with the discrimination of an Oxford don. Rather, he need only articulate his desire to [remain silent or] have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be [such] a request. In Smith v. Illinois, (S.Ct.1984), the Supreme Court explained that where nothing about the request... or the circumstances leading up to the request would render it ambiguous, all questioning must cease. In such circumstances, the Court held, it is improper for an officer to attempt to clarify the request; indeed, there is nothing to clarify. Accordingly, if an officer seeks to clarify an unambiguous request and elicits an equivocal response, the suspect s post-request statements may not be used to cast retrospective doubt on the clarity of the initial request itself. Court s Ruling: Given Garcia s clear and simple response to the question, Do you want to speak to me? the U.S. Court of Appeals had no difficulty reversing the lower courts. The Supreme Court has thus clearly established the following points of law: First, an unambiguous and unequivocal Miranda invocation cuts off questioning even questioning intended to clarify that the accused is invoking his Miranda rights. Second, an ambiguous or equivocal Miranda invocation does not require the cessation of questioning. Finally, in determining whether a request is ambiguous or equivocal, the court must apply an objective inquiry: Although a suspect need not speak with the discrimination of an Oxford don, he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. No one here contends, and the state court did not find, that Garcia s no was ambiguous or equivocal on its face. The question asked now, having your Miranda rights in mind, do you wish to talk to me? was clear as day. So too was Garcia s one -word response. Neither the detective nor Garcia equivocated by using words such as maybe or might or I think. The question, then, is whether Garcia s request to remain silent was somehow ambiguous or equivocal in the context of the whole interrogation. The [state] Court of Appeal found that because Garcia had twice [before] provided additional or contrary information despite his initial negative response, he had used the term no inconsistently. The court thus reasoned that Garcia s answer no to Detective Beatty s question whether he wanted to talk was ambiguous in the context of his preceding conversation with the detective. This reasoning was foreclosed by Smith, The Supreme Court held that the detective s clarifying question was improper, and Smith s equivocal response could not be used to cast retrospective doubt on the clarity of the initial request itself. The Court explained that Miranda was a bright-line prohibition a rule necessary to prevent the authorities from wearing down the accused and persuading him to incriminate himself notwithstanding his earlier request. The California Court of Appeal s use of Garcia s postrequest statements to call his initial no into question was contrary to this bright-line rule. The only reasonable reading of the record is that Garcia told the officers that he wanted to remain silent. Quite literally, however, the officers did not take no for an answer. The Supreme Court has made clear that when a suspect makes the simple statement that he wants to remain silent, he invokes his right to cut off questioning. By continuing to ask questions, the officers failed to scrupulously honor Garcia s simple request. We accordingly hold that Garcia s constitutional rights were violated when his interrogation tape was played and his apology letter was read at trial. The State shall, within the time prescribed by the district court, either release Garcia or grant him a new trial. Lessons Learned: The rule could not be simpler. The Supreme Court in Miranda v. Arizona said that when a suspect indicates in any manner... that he wishes to remain silent, the interrogation must cease. Miranda could not have been more clear on this point: when an individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. Once he has exercised the right to cut off questioning, his right must be scrupulously honored. This bright-line rule is designed to protect interrogated suspects from police badgering or overreaching explicit or subtle, deliberate or unintentional. Garcia v. Long U.S. Court of Appeals Ninth Cir. (Dec. 21, 2015) Legal Eagle 7

8 Miranda and Misstatement of the Law Peter Baptiste and others were arrested for a jewelry store robbery. While at the police station Baptiste signed a Miranda waiver card. The detectives then suggested to him that they thought the robbery was committed using a BB gun rather than a firearm. The officer stated that if the men did in fact use BB guns, this is the time for you to tell us that, because it makes a world of difference. The detective explained that a robbery with a real firearm, versus robbery with a BB gun, are two totally different charges. If BB guns were used, it s attempted robbery. It s not armed robbery.... there s a difference when you carry a gun to a robbery and when you don t carry a gun to a robbery. BB gun is not considered a deadly weapon; firearm is. Baptiste asked, But the BB gun is still going to be considered an armed robbery? The officer stated, No, it s considered a robbery. Baptiste then confessed to the robbery stating they had used BB guns. Defendant was charged with armed robbery, and at trial he moved to suppress his statements arguing the statements were involuntarily made as the result of police officers misrepresenting the law by promising him that if he confessed to committing the offenses but stated he used a BB gun rather than a firearm, he could only be charged with robbery, not armed robbery with a deadly weapon. The trial court denied the motion. On appeal the 1st D.C.A. disagreed and reversed his convictions. Issue: May an officer misrepresent the law to induce a confession? No. Armed Robbery: The issue posed here is whether the deadliness of a BB gun is properly a jury question, or whether a BB gun is so innocuous that it is always a non-deadly weapon as a matter of law. The Florida courts have overwhelmingly concluded that a BB or pellet gun can be a deadly weapon, and that the issue of deadliness is a question for the jury to resolve. The D.C.A. here ruled that whether a BB or pellet gun is a deadly weapon -i.e., whether it is likely to produce death or great bodily injury - is a factual question to be answered by the jury in each case. The jury s finding will be sustained on review if supported by competent substantial evidence. A weapon is legally defined to mean any object that could be used to cause death or inflict serious bodily harm. Whether a particular weapon is in fact deadly is a jury question. A deadly weapon has generally been defined to be one likely to produce death or great bodily injury. Misstatement of the Law: The voluntariness of a defendant s statement is determined considering the totality of the circumstances. circumstances. For a confession or inculpatory statement to be voluntary, the totality of the circumstances surrounding the statement must indicate the statement was the result of a free and rational choice. The mind of the accused should, at the time, be free to act, uninfluenced by fear or hope. To exclude a confession or an inculpatory statement, it is not necessary that any direct promises or threats be made to the accused. It is sufficient if the circumstances or declarations of those present are calculated to delude the prisoner as to his true position and exert an improper influence over his mind. A confession or inculpatory statement is not freely and voluntarily given if it has been elicited by direct or implied promises, however slight. Walker v. State, (1DCA 2000). Both federal and Florida case law distinguish between a police officer s misrepresentation of fact versus a misrepresentation of law. Generally, misrepresentations of fact.... are not enough to render a suspect s ensuing confession involuntary, nor does it undermine the waiver of the defendant s Miranda rights. Police misrepresentations of law, on the other hand, are much more likely to render a suspect s confession involuntary. United States v. Lall, (11th Cir. 2010). Court s Ruling: Given the misrepresentation as to the state of the law made by the detective, and the defendant s obvious reliance on his statements, the DCA had little trouble reversing his conviction. Here, police made a promise to [defendant] that he could only be charged with robbery, not armed robbery or armed robbery with a deadly weapon, if he used a BB gun. That promise was a misrepresentation of the law. A BB gun can support a conviction for armed robbery with a deadly weapon. [Defendant] was, in fact, charged with armed robbery with a deadly weapon, and convicted of robbery with a weapon as a lesser-included offense. It is clear from the interview transcript that there was a causal connection between the improper conduct and the statement. Although [defendant] had repeatedly refused to Legal Eagle 8

9 confess during the interview, when the officers told [defendant] he could not be charged with armed robbery with a deadly weapon if they used BB guns, he confessed almost immediately and specified they used BB guns. Afterwards, [defendant] told [co-defendant] that the officers said they could not be charged with armed robbery if they used BB guns and that s the reason I came out with it.... Thus, we find the officers promise that [defendant] could not be charged with armed robbery with a deadly weapon was a misrepresentation of the law that rendered involuntary [defendant s] statements that followed. As such, we Reverse. Lessons Learned: Fraud in the inducement is a legal principle usually encountered in civil court, but the concept here is the same. Fraud in the inducement is a specific type of contract fraud. In these cases, the defendant uses deceit or trickery to cause the other party to act to their disadvantage. Here the detective fraudulently induced the defendant to admit his guilt by misrepresenting the defendant s exposure if he confessed to using a BB gun rather than a firearm during the course of the robbery. Had the prosecutor limited the criminal charges to simple robbery the defendant s statement would have been found admissible. By contradicting the detective and charging armed robbery the statement was doomed from the outset. Baptiste v. State 1st D.C.A. (Nov. 25, 2015) Miranda During a Traf ic Stop In connection with a narcotics investigation, two law enforcement officers received a BOLO. The officers then noticed a vehicle driven by the defendant that matched the description provided to them. After observing the vehicle commit a traffic violation, the two officers turned on the lights and siren on their marked police vehicle and initiated a valid traffic stop. Without administering Miranda warnings, one of the officers, immediately after saying good morning or good afternoon, asked the defendant whether she had any weapons or drugs in the car. The officer testified that the defendant hesitated, like a look of fear on her face, and then answered that she had a bag of pills. The officer asked the defendant to step out of her car, which she did, and she then pulled the bag of pills from a pocket and placed it on the hood of the car. The pills were over 28 grams of hydrocodone. The defendant filed a motion to suppress arguing that she was in police custody at the time she made her statement without the benefit of Miranda warnings. Prior to granting the defendant s motion the trial judge asked the following rhetorical question: The defendant is being stopped for the traffic violation. And she s asked the question, when the officer is stopping her for a traffic violation, How is that question regarding drugs, especially in light of the fact that the officer also knows that he is following this person and stopping her for the narcotics team. How is it okay to ask that question? How is that question not designed to elicit an incriminating response? On appeal, the 3 rd D.C.A. reversed the suppression order. Issue: Was the defendant entitled to Miranda warnings prior to being asked the question, are there any drugs or guns in the car, pursuant to a routine traffic stop? No. Miranda at a Traffic Stop: In the case of a lawful traffic stop, such as this, persons temporarily detained pursuant to such stops are not in custody for the purposes of Miranda. Berkemer v. McCarty, (S.Ct. 1984). While the Court acknowledged that a traffic stop significantly curtails the freedom of action of the driver and the passengers, if any, of the detained vehicle, and also that few motorists would feel free either to disobey a directive to pull over or to leave the scene of a traffic stop without being told they might do so. The Court went on to rule, however, The usual traffic stop is more analogous to a so-called Terry stop, than to a formal arrest. Under the Fourth Amendment, we have held, a policeman who lacks probable cause but whose observations lead him reasonably to suspect that a particular person has committed, is committing, or is about to commit a crime, may detain that person briefly in order to investigate the circumstances that provoke suspicion. Typically, this means that the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer s suspicions. But the detainee is not obliged to respond. And, unless the detainee s answers provide the officer with Legal Eagle 9

10 probable cause to arrest him, he must then be released. The comparatively non-threatening character of detentions of this sort explains the absence of any suggestion in our opinions that Terry stops are subject to the dictates of Miranda. The similarly non-coercive aspect of ordinary traffic stops prompts us to hold that persons temporarily detained pursuant to such stops are not in custody for the purposes of Miranda. Similarly, in Hewitt v. State, (5DCA 2006), a drug patrol officer, with four or five other officers of the drug patrol unit present, legally stopped the defendant s car for a traffic violation. For officer safety reasons, she was asked if she had a gun, knives or drugs on her person. Hewitt started crying and said she had some weed on her. Hewitt retrieved two bags of marijuana. Officer Peek did not Mirandize Hewitt before asking her if she had any drugs. The Fifth District affirmed the trial court s denial of Hewitt s motion to suppress, rejecting her argument that the police improperly initiated custodial interrogation without warning her of her constitutional rights. The critical question then is whether, at the time Officer Peek initiated questioning, Hewitt was merely being temporarily detained pursuant to a routine traffic investigation or had been subjected to treatment to the extent her freedom of action was curtailed to a degree associated with formal arrest. In determining whether a suspect is in custody, Florida courts consider: (1) the manner in which police have summoned the suspect for questioning; (2) the purpose, place, and manner of the interrogation; (3) the ex- tent to which the suspect was confronted with evidence of guilt; and (4) whether the suspect was informed of a right to leave the place of questioning. See, Ramirez v. State, (Fla.1999). Officer Peek asked Hewitt to step out of her car. Then, for officer safety reasons, Peek asked Hewitt if she possessed a gun, knives or drugs. The questioning took place by the side of Hewitt s car during a traffic stop. Officer Peek asked Hewitt a routine question and did not confront her with any evidence of guilt... The test is how a reasonable person would have perceived the situation. We believe that a reasonable person in Hewitt s shoes would not have believed she was going to be arrested merely because a police officer asked her to step out of her vehicle and then asked a standard question for officer safety purposes. A reasonable person, not in possession of illicit drugs, would not have believed he or she would be arrested merely for driving without a valid driver s license. Court s Ruling: The 3 rd D.C.A. ruling here was bare bones, In the case of a lawful traffic stop such as this, however, persons temporarily detained pursuant to such stops are not in custody for the purposes of Miranda. Berkemer v. McCarty, (S.Ct.1984). To add some flesh to the bones, it should be noted that the Supreme Court stated that an ordinary traffic stop rarely rises to the functional equivalent of a formal arrest because it is presumptively temporary and brief compared to stationhouse interrogation, which frequently is prolonged. Moreover, circumstances associated with the typical traffic stop are not such that the motorist feels completely at the mercy of the police because of the exposure to public view normally attendant in the situation and the fewer police normally involved. In short, the atmosphere surrounding an ordinary traffic stop is substantially less police dominated than that surrounding the kinds of interrogation at issue in Miranda itself Accordingly, the Court concluded that persons temporarily detained pursuant to an ordinary traffic stop are not in custody for the purposes of Miranda. Lessons Learned: A court s analysis of traffic stops are fact specific and analyzed by the totality of the circumstances. In simplest terms it is important to understand that the motorist at a traffic stop is not your prisoner. Don t treat him or her like one, and Miranda issues will not surface. Without placing your safety at risk, keep these issues in mind: 1. Limit the number of deputies at the scene. An overwhelming number will communicate to the motorist that he is in custody and not free to leave, which will cause Miranda issues to rise. 2. Ask questions, don t accuse. 3. Keep the atmosphere of the stop non-coercive. 4. Be polite not confrontational. 5. Limit orders of where to stand, and where to place one s hands, and any other demonstrations of authority consistent with the motorist being taken into custody. In this instance actions speak louder than words. without a valid driver s license. State v. Hinman 3 rd D.C.A. (2012) Legal Eagle 10

11 O G C Florida Case Law Update Case: State v. Pullen, 40 FLW D2804b (Fla. 5th DCA) Date: December 18, 2015 Subject: Even though the suspect informed officers that he had retained counsel, his subsequent statement to them did not constitute a Miranda violation because he was not both in custody and subject to official interrogation at the time the statement was made. FACTS: Detectives approached Pullen at his workplace and asked him about unlawful sexual contact with a minor. Pullen admitted to "hanging out" with the victim, but denied any sexual contact. He agreed to meet with the detectives at the police station the following morning. When he failed to appear for the meeting, they returned to his workplace, where Pullen informed them that he had retained counsel. When they turned to leave, Pullen reengaged them in a general discussion regarding the investigation. Pullen ultimately volunteered that while he never raped the victim, they did engage in sex on one occasion. Pullen then provided a written statement admitting to the sexual contact. At trial, Pullen argued that even though he was not in custody at the time he made his statement, the detectives still had an obligation to obtain a valid Miranda waiver from him once they were informed that he was represented by counsel. The trial court agreed and suppressed the statements. RULING: The Fifth District Court of Appeal reversed the trial court, holding that the police are not required to give Miranda warnings to persons who are not both in custody and subjected to interrogation. DISCUSSION: The appellate court noted that since this case clearly did not implicate Pullen's 6th Amendment right to counsel, the analysis should rely on 5th Amendment precedent. The court related, relying on McNeil v. Wisconsin, 501 U.S. 171 (1991), that the U. S. Supreme Court has never extended the Miranda right to counsel outside of the context of custodial interrogation, nor can this right be invoked in anticipation of later custodial questioning. Citing Sapp v. State, 690 So.2d 581 (Fla. 1997), the court reiterated that "Miranda's safeguards were intended to protect by countering the compulsion that inheres in custodial interrogation. The presence of both a custodial setting and official interrogation is required to trigger the Miranda right to counsel absent one or the other, Miranda is not implicated." In this case, since Pullen was not in custody, and since he could not prospectively invoke his Miranda rights simply by stating that he had retained counsel, no Miranda violation occurred, and his statement was admissible. COMMENTS: Remember that different rules apply once a suspect who is in custody invokes his 5th Amendment right to counsel post-miranda. Pursuant to case law, that suspect may not be re-approached by law enforcement to discuss any crime until there has been a 14 day break in custody, or unless the suspect initiates the contact. See Maryland v. Shatzer, 559 U.S. 98 (2010); Edwards v. Arizona, 451 U.S. 477 (1981); Minnick v. Mississippi, 498 U.S. 146 (1990); Traylor v. State, 596 So.2d 957 (Fla. 1992). Also, once a suspect's 6th Amendment right to counsel has attached (through the initiation of court proceedings), any contact should be made through the appointed counsel. John E. Kemner Regional Legal Advisor Florida Department of Law Enforcement Jacksonville Regional Operations Center Legal Eagle 11