REVISITING RHODE ISLAND v. INNIS: OFFERING A NEW INTERPRETATION OF THE INTERROGATION TEST

Transcription

1 REVISITING RHODE ISLAND v. INNIS: OFFERING A NEW INTERPRETATION OF THE INTERROGATION TEST ALEXANDER S. HELDERMANt I. INTRODUCTION II. THE CASE OF RHODE ISLAND v. INNIS A. The Facts of Rhode Island v. Innis B. Interrogation Under Innis III. CONFUSION OVER INNIS: THE MYRIAD OF VIEWS TAKEN BY THE CIRCUIT COURTS A. The Objective Interpretation: Interpreting Innis as an Objective Test B. The Objective Interpretation Plus: Interpreting Innis as an Objective Test Plus an Inquiry Into the Police Officer's Intent C. The Subjective Interpretation: Interpreting Innis as a Subjective Test D. The Mixed Interpretation: Interpreting Innis as a M ixed Test IV. ANOTHER INTERPRETATION OF INNIS: INTERPRETING INNIS AS A HYBRID TEST A. The Suspect's Subjective Beliefs The Plain Language of Innis Innis in Light of Miranda B. The Objective, Reasonable Police Officer "Should have known" and the Tort Model Narrowing the Reasonable Person: The Reasonable Police Officer The Plain Language of Innis The Reasonable Police Officer and Terry v. O hio t Law Clerk to the Honorable Adolpho A. Birch Jr., Justice, Tennessee Supreme Court; J.D. 1999, Vanderbilt University Law School; B.A. 1996, University of Rochester. First and foremost, I must thank Professor Donald Hall at Vanderbilt University Law School. Professor Hall piqued my interest in this topic, and without his guidance and encouragement this work would not have been possible. I must also thank Justice Birch for teaching me, as Justice Louis Bradeis once wrote, "there is no such thing as good writing. There is only good re-writing." Additional thanks go to James M. McCray, Aruna Boppana, and Susan E. Westmoreland for their editorial assistance. Harry B. Roback deserves special recognition for his adept editing and for his superb suggestions. Last, but certainly not least, I must thank Carrie B. Rosen for her help, encouragement, and perhaps, most importantly, her patience.

2 CREIGHTON LAW REVIEW [Vol. 33 C. The Officer's Subjective Beliefs D. Empirical Support for the Hybrid Test V. IMPLEMENTING THE HYBRID TEST VI. REJECTING THE OBJECTIVE INTERPRETATION VII. CONCLUSION I. INTRODUCTION In Miranda v. Arizona,' the United States Supreme Court held that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." 2 The Miranda Court failed, however, to define "interrogation." 3 Almost twenty years later, the Supreme Court in Rhode Island v. Innis 4 "address [ed] for the first time the meaning of 'interrogation' under Miranda v. Arizona." 5 The Innis Court defined interrogation as "any words or actions... that the police should know are reasonably likely to elicit an incriminating response from the suspect." 6 The Court, however, failed to specify whether the Innis test 7 requires an objective or subjective in U.S. 436 (1966). 2. Miranda v. Arizona, 384 U.S. 436, 444 (1966). Thus, under Miranda, defendant: must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded him throughout the interrogation. After such warnings have been given and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make statements. Miranda, 384 U.S. at 479; see supra Part 1V.A The Court defined "custodial interrogation" as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom in any significant way." Miranda, 384 U.S. at 444, 477. Miranda's definition of "custodial interrogation" failed, however, "to delineate the scope of interrogation under the decision... [N]owhere did [the Court] state whether 'questioning' refers merely to formal, express police questioning or to other statements or actions by the police equivalent to constructive questioning as well." Deborah L. Fletcher, Rhode Island v. Innis: A Workable Definition of "Interrogation"?, 15 U. RICH. L. REV. 385, (1981) U.S. 291 (1980). 5. Rhode Island v. Innis, 446 U.S. 291, 297 (1980) ("We granted certiorari in this case to address for the first time the meaning of 'interrogation' under Miranda v. Arizona."). 6. Innis, 446 U.S. at Lower courts apply the Innis Court's definition of interrogation in determining whether a suspect was interrogated by a police officer. See infra Part III. Throughout this article, therefore, the Court's definition of interrogation is referred to as the "Innis test" or the "interrogation test."

3 2000] REVISITING RHODE ISLAND v. INNIS quiry and from whose perspective a police officer's words or actions should be viewed. The Court's definition, therefore, did little to clarify the law and thus provides little or no guidance to lower courts in determining whether a person has been interrogated. 8 As a result, a definitive interpretation of Innis has yet to emerge. 9 In fact, the federal circuit courts have adopted their own interpretations of the Innis test, many of which are inconsistent with the language of the Innis opinion and the concerns of Miranda. 10 These interpretations include: (1) a reading of Innis as an objective test; (2) a reading of Innis as an objective test which also examines a police officer's intent; (3) a reading of Innis as a subjective test focusing on a suspect's perspective; and (4) a reading of Innis as a "mixed" test combining both an objective and subjective inquiry.' 1 The need for a uniform interpretation of Innis, which is consistent with the opinion itself and the concerns of Miranda, is important for several reasons. First, a split among the circuit courts is generally problematic. The division in this case is particularly undesirable because of its constitutional implications. Clarifying the Innis test, therefore, is necessary to ensure that an individual's Fifth Amendment protection against self-incrimination is adequately enforced. Second, how a court defines interrogation is not simply an academic exercise; it can have drastic consequences for the individual suspects of police investigations. Finally, the definition of interrogation can effect law enforcement technique and strategy. A uniform interpretation of the Innis test would allow law enforcement officers to consistently balance effective investigatory techniques with an individual's constitutional rights. This article attempts to clarify the Innis Court's definition of interrogation. Part II of this article examines Innis, discussing the facts of the case, the Innis test, and the application of the test to the facts. Part III discusses the split between the circuit courts and identifies the different interpretations of Innis. Part IV offers a "hybrid test" as an alternative interpretation of Innis. The implementation of the hybrid test is discussed in Part V. In discussing the implementation of the hybrid test, a multi-tiered approach is rejected in favor of a balancing test. Part VI rejects the objective interpretation, the dominant interpretation of Innis, in light of the hybrid interpretation. Finally, Part VII concludes that the hybrid test is the interpretation most con- 8. See Innis, 446 U.S. at 301 (articulating the Court's definition of an interrogation under Miranda); see also infra Part III. 9. See id.; see also infra Part III. 10. See id.; see also infra Parts IV and VI. 11. See id.; see also infra Part III.A.-D.

4 CREIGHTON LAW REVIEW [Vol. 33 sistent with the language of Innis, the concerns articulated in Miranda, and with similar tests in law. II. THE CASE OF RHODE ISLAND v. INNIS A. THE FACTS OF RHODE ISLAND V. INNIS On January 17, 1975, just after midnight, the Providence, Rhode Island police received a call from a local taxicab driver. 1 2 The driver reported that he had been robbed by an individual wielding a sawedoff shotgun. 13 The driver dropped off his assailant, who was apparently a passenger, in an area of Providence known as Mount Pleasant. 14 The cab driver proceeded to the Providence Police Department to give a statement.' 5 At the police station, the cab driver identified his assailant as one of the individuals pictured on a police bulletin board. 16 The police prepared a photographic array and the driver again identified the same individual-thomas J. Innis. 17 Innis was arrested that same day at approximately 4:30 a.m. by Patrolman Lovell. Lovell was patrolling Mount Pleasant when he spotted an individual who he identified as Innis.1 8 Lovell arrested Innis, who was unarmed, and informed him of his Miranda rights. 1 9 Lovell then placed Innis in his patrol car and waited for additional officers to arrive. Shortly thereafter, Sergeant Sears arrived and read Innis his Miranda rights. Captain Leyden subsequently arrived. He too read Innis his Miranda rights. Innis responded that he understood his rights and that he wanted to speak to a lawyer. 20 Innis was placed in a "caged wagon" and driven to the central police station. 2 1 Accompanying Innis were Officers Gleckman, Williams, and McKenna. Before leaving for the police station, Captain Leyden instructed the three officers "not to question the respondent or intimidate or coerce him in any way." Rhode Island v. Innis, 446 U.S. 291, 293 (1980). 13. Innis, 446 U.S. at 293. On January 12, 1975, another taxi cab driver (John Mulvaney) was reported missing. His body was found four days later. He died from a shotgun wound to the back of his head. See id. 14. Innis, 446 U.S. at Id. 16. Id. 17. Id. Thereafter, the police began to search the Mount Pleasant area for Thomas Innis. Id. 18. Innis, 446 U.S. at Id. at Id. 21. A caged wagon is described as "a four-door police car with a wire screen mesh between the front and rear seats." Id. 22. Innis, 446 U.S. at 294.

5 20001 REVISITING RHODE ISLAND v. INNIS Riding to the police station, Officer Gleckman engaged Officer Mc- Kenna in a conversation concerning the missing shotgun. 2 3 Gleckman told McKenna that he frequently patrolled this part of Mount Pleasant because "there's a lot of handicapped children running around in this area, and God forbid one of them might find a weapon with shells and they might hurt themselves." 24 McKenna echoed Gleckman's concern telling Gleckman that it was a safety factor and the officers should continue to search for the weapon. 25 Williams, who did not participate in the conversation, remembered at trial that Gleckman "said it would be too bad if the little-i believe he said a girl-would pick up the gun, maybe kill herself." 26 Innis interrupted the conversation and informed the officers that they should turn the car around so he could show them the location of the gun. 2 7 Innis directed the officers to the scene of the arrest where a search for the shotgun ensued. Innis was again informed of his Miranda rights. Again, Innis responded that he understood his rights and that he "wanted to get the gun out of the way because of the kids in the area in the school." 28 Innis then led the officers to the exact location of the gun. Innis was indicted by a grand jury for kidnapping, robbing, and murdering John Mulvaney. 29 Before trial, Innis moved to suppress the shotgun and the statements he made regarding the weapon. 30 The trial court admitted both the shotgun and the statements into evidence. The trial court reasoned that Innis was fully advised of his Miranda rights, the officers understandably voiced their concerns for the safety of the handicapped children, and Innis's decision to inform the police of the location of the gun and his subsequent statements constituted a waiver of his Miranda rights. 3 1 The court did not determine if the officers had interrogated Innis. 32 Thus, the evidence was introduced and Innis was subsequently convicted by a jury. 33 The Rhode Island Supreme Court, on appeal, held that Innis was entitled to a new trial. 34 The Court reasoned that the police subjected 23. Id. 24. Id. at Id. at Id. The Court noted that although there was disagreement over the exact seating arrangements in the car, it was clear that all passengers overheard the conversation. Id. at 294 n Innis, 446 U.S. at Id. 29. Id.; see supra note 13 and accompanying text. 30. Innis, 446 U.S. at Id. at Id. 33. Id. at Id. at 297.

6 CREIGHTON LAW REVIEW [Vol. 33 Innis to "subtle coercion" which was equivalent to "interrogation" under Miranda. 35 Because the shotgun and related statements were obtained in violation of Miranda, neither should have been admitted into evidence. 3 6 The Miranda Court did not, however, define interrogation in a custodial setting. 3 7 Thus, in 1979, when Innis reached the United States Supreme Court, the Court was provided with the opportunity "to address for the first time the meaning of 'interrogation' under Miranda v. Arizona. '3s B. INTERROGATION UNDER INNIS Justice Stewart, writing for the majority, began by examining the concept of interrogation in the context of Miranda. 39 Under Miranda, Justice Stewart noted, custodial interrogation occurs when a law enforcement officer initiates the questioning of an individual who "has been taken into custody or is otherwise deprived of his freedom of action in any significant way." 40 Justice Stewart carefully explained that to be consistent with Miranda, a definition of interrogation should not be limited to cases of express questioning. To the Innis Court, the concept of "interrogation" could not be construed so narrowly and still be consistent with Miranda. 4 1 Miranda was concerned with the environment of interrogation; that the interrogation of an individual while in custody could "'subjugate the individual to the will of his examiner' and thereby undermine the privilege against compulsory self-incrimination." 4 2 Moreover, Justice Stewart reasoned that the Miranda Court had surveyed police practices, such as the use of psychological ploys, to gain confessions. 43 These techniques, although not forms of express questioning, amounted to interrogation Id. at Id. at See Alan M. Schutzman, Rhode Island v. Innis, 9 HOFSTRA L. REV. 691, 692 (1981) ("[T]he most important and troublesome issue that the Miranda decision left unresolved-what constitutes interrogation in a custodial setting-did not receive Supreme Court attention for fourteen years."). 38. Innis, 446 U.S. at 297. Prior to Innis, the Supreme Court had already defined and clarified many aspects of Miranda. For example, in Michigan v. Mosley, 423 U.S. 96 (1975), the Court defined what constitutes a waiver of a suspect's Miranda rights. Additionally, in Beckwith v. United States, 425 U.S. 341 (1976), the Court clarified the meaning of "custody" under Miranda. 39. Innis, 446 U.S. 292, Id. at Id. at Id. (quoting Miranda v. Arizona, 384 U.S. 436, (1966)). 43. Id. at Id.

7 20001 REVISITING RHODE ISLAND v. INNIS Although refusing to narrowly define interrogation, the Supreme Court recognized that not all statements from suspects in custody were a result of police interrogation. 4 5 Statements, such as confessions, which are given freely, voluntarily, and without compulsion are not considered the product of interrogation. 4 6 Interrogation, therefore, "as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself." 4 7 Interrogation under Miranda, according to the Innis Court, occurs when an individual in custody is subject to express questioning or its "functional equivalent." 4 8 The "functional equivalent" of express questioning is "any word[] or action[] on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." 4 9 The latter portion of the test, according to the Court, focuses "primarily upon the perceptions of the suspect, rather than the intent of the police." 50 The focus on a suspect's perceptions "reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police." 5 1 While the "focus" of the Innis test may be on the suspect's perceptions, the intent of a police officer is relevant. 5 2 The intent of the officer, particularly when a police practice is "designed to elicit an incriminating response," may bear on the question of whether the "police should have known that their words or actions were reasonably likely to evoke an incriminating response." 5 3 Additionally, "[a]ny knowledge the police may have had concerning the unusual susceptibility of a defendant to a particular form of persuasion might be an important factor in determining whether the police should have known that their words or actions were reasonably likely to elicit an incriminating response from the suspect." 54 The Supreme Court found that Innis was not interrogated because he had not been subjected to express questioning or its "func- 45. Id. 46. Id. at 300 (quoting Miranda, 384 U.S. at 478). 47. Id. at Id. at Id. at Id. 51. Id. 52. See id. at 301 n Id. 54. Id. at 301 n.8.

8 CREIGHTON LAW REVIEW [Vol. 33 tional equivalent." 55 Reasoning that the officers should not have known that their actions were likely to elicit an incriminating response from Innis, the Court noted that the record did not suggest that the officers were aware that Innis was susceptible to an appeal concerning the safety of handicapped children. 56 Moreover, the record did not suggest that the police knew that Innis was disoriented or upset when arrested or that the officers' remarks were evocative. 57 Finally, the Court characterized the officers' conversation with Innis as nothing "more than a few offhand remarks" and not a case where the "police carried on a lengthy harangue in the presence of the suspect." 58 Three justices, Marshall, Brennan and Stevens dissented. Justice Marshall, joined by Justice Brennan, agreed with the majority's "objective" test but disagreed with the majority's application of the test to the facts of the case. 59 Justice Marshall objected to the majority's characterization of the conversation between Officers Gleckman and McKenna as "no more than a few off handed remarks." 60 Justice Marshall wrote: One can scarcely imagine a stronger appeal to the conscience of a suspect--any suspect-than the assertion that if the weapon is not found an innocent person will be hurt or killed... The notion that such an appeal could not be expected to have any effect unless the suspect were known to have some special interest in handicapped children verges on the ludicrous. 61 Noting that the conversation between the two officers, if directed at Innis, would "obviously have constituted interrogation," Justice Marshall concluded that Officers Gleckman and McKenna "knew... [the suspect] would hear and attend to their conversation, and they are chargeable with knowledge of the responsibility for the pressures to speak which they created." Id. at See id. 57. Id. at Id. at Id. at 305 (Marshall, J., dissenting). Justice Marshall noted that: Thus, the Court requires an objective inquiry into the likely effect of police conduct on a typical individual, taking into account any special susceptibility of the suspect to certain kinds of pressure of which the police know or have reason to know. I am utterly at a loss, however, to understand how this objective standard as applied to the facts before us can rationally lead to the conclusion that there was no interrogation. Id. (Marshall, J., dissenting). 60. Innis, 446 U.S. at 306 (Marshall, J., dissenting). 61. Id. (Marshall, J., dissenting). 62. Id. at (Marshall, J., dissenting).

9 2000] REVISITING RHODE ISLAND v. INNIS Unlike Justices Marshall and Brennan, Justice Stevens disagreed with the test articulated by the majority. Justice Stevens believed that "any statement... normally... understood by the average listener as calling for a response... [was] the functional equivalent of a direct question, whether or not it is punctuated by a question mark." 63 The narrower approach, taken by the majority according to Justice Stevens, represented a departure from Miranda and confused "the scope of the exclusionary rules with the definition of 'interrogation."' 64 For Justice Stevens, to remain consistent with Miranda, a definition of interrogation could not be limited to statements that are "likely to elicit." 65 Rather, in order to give full protection to a suspect's rights to be free from any interrogation at all, the definition of 'interrogation' must include any police statement or conduct that has the same purpose or effect as a direct question. Statements that appear to call for a response from the suspect, as well as those that are designed to do so, should be considered interrogation. 66 Articulating his test, Justice Stevens posed three hypothetical scenarios which could have occurred under the facts of Innis: (1) Officer Gleckman could have asked Innis directly, "Will you please tell me where the shotgun is so we can protect handicapped children from danger?"; (2) he could have announced to the other officers in the wagon, "If the man sitting in the back with me should decide to tell us where the gun is, we can protect handicapped children from danger."; or (3) he could have stated to the other officers, "It would be too bad if a little handicapped girl would pick up the gun that this man left in the area and maybe kill herself." 6 7 Under Justice Stevens' test, all three statements constitute interrogation. Under the majority's test, however, only the first statement would constitute interrogation because it was the only direct question and it was the only statement reasonably likely to elicit an incriminating response. 68 Notwithstanding his own test, Justice Stevens took exception to the majority's position on two additional grounds. First, accepting the majority test as proper, Justice Stevens contended that the Court should have remanded the case to the trial court. 69 Second, according 63. Id. at 309 (Stevens, J., dissenting). 64. Id. at 309 n.5 (Stevens, J., dissenting). 65. Id. at 309 n.5 (Stevens, J., dissenting). 66. Id. at 311 (Stevens, J., dissenting) (emphasis added). 67. Id. at 312 (Stevens, J., dissenting). 68. See id. at 313 (Stevens, J., dissenting). 69. See id. at 314 (Stevens, J., dissenting). Justice Stevens wrote that "given the creation of a new standard of decision at this stage of the litigation, the proper procedure would be to remand to the trial court for findings on the basis of evidence directed at the new standard." Id.

10 CREIGHTON LAW REVIEW [Vol. 33 to Justice Stevens, even under the test articulated by the majority, Officer Gleckman had interrogated Innis. 70 III. CONFUSION OVER INNIS: THE MYRIAD OF VIEWS TAKEN BY THE CIRCUIT COURTS When the Supreme Court decided Innis in 1980, defining interrogation to include "any words or actions on the part of the police... that [they] should know are reasonably likely to elicit an incriminating response from the suspect," commentators recognized the ambiguity in the Court's expansive definition 7 ' No one, however, could predict the difficulty that the federal circuit courts would have in applying the Innis test. The confusion stems from the Court's failure to make clear if the interrogation test is objective or subjective and from whose perspective a police officer's words or actions should be viewed. 72 On its face, the interrogation test appears objective, employing the traditional language of an objective "should have known" test. A closer reading reveals that perhaps the test is subjective, primarily examining "the perceptions of the suspect." 73 Finally, an even more discerning reading suggests that it is a subjective test, focusing on the intent of the police. 74 There is little consistency among the federal circuit courts' interpretation of the Innis test. In fact, several circuits interpret the test in more than one way. In general, the federal circuit courts' interpreta- 70. Innis, 446 U.S. at (Stevens, J., dissenting). Justice Stevens argued that the majority's view that a "criminal suspect [would] not be likely to respond to indirect appeals to his humanitarian impulses," that the officers did not know that Innis would be susceptible to appeal, and that Officer Gleckman did not intend to elicit a response, was incorrect. Id. at 315. Justice Stevens first noted that police interrogation manuals recommend appealing to a suspect's conscious as a method of effective police practice. Id. Additionally, there was evidence that Officer Gleckman intended to elicit a response. Id. 71. Innis, 446 U.S. at 301 (footnotes omitted). See Robert C. Welch & Ronald K.L. Collins, New High Court Ruling On Confessions Says One Thing, Does Another: A Two- Faced Approach To Miranda, NAT'L L.J. 15 (June 16, 1980); see also Welsh S. White, Interrogation Without Questions: Rhode Island v. Innis and United States v. Henry, 78 MICH L. REV. 1209, 1224 (1980) ("This new definition of 'interrogation' is not free from ambiguity... [T]he test articulated by the Court does not in itself define a clear substantive standard."); WAYNE R. LAFAvE & JEROLD K. ISRAEL, CRIMINAL PROCEDURE 6.7, at 324 (2d ed. 1992); Jeffery J. Huber, Note, An Objective Test For "Interrogation" in Nebraska, 26 CREIGHTON L. REV. 117, (1992) ("Although the United Supreme Court in Rhode Island v. Innis attempted to clarify the boundaries of what constitutes a custodial 'interrogation' under Miranda v. Arizona, the Court failed to provide a dispositive test regarding the issue of whether a suspect has been 'interrogated.'"). 72. See Huber, 26 CREIGHTON L. REV. at 135 ("[Tlhe decision in Innis left uncertain whether the 'reasonably likely to elicit' test is an objective or subjective one."); see also White, 78 MICH L. REV. at Innis, 446 U.S. at See id. at 301 n.7.

11 20001 REVISITING RHODE ISLAND v. INNIS tions of Innis fall into four categories. Circuit court interpretations include: (1) a reading of Innis as an objective test; (2) a reading of Innis as an objective test which also examines a police officer's intent; (3) a reading of Innis as a subjective test which focuses on a suspect's perspective; and (4) a reading of Innis as a "mixed" test combining both an objective and subjective inquiry A. THE OBJECTIVE INTER1PRETATION: INTERPRETING INNIS AS AN OBJECTIVE TEST The first interpretation of Innis is as an objective test. 7 5 Circuit courts applying the objective reading of Innis usually ask "whether a reasonable objective observer would believe that the encounter [between the officer and suspect] was 'reasonably likely to elicit an incriminating response from the suspect."' 76 If an objective observer would believe that an incriminating response was reasonably likely to result from an exchange between the officer and suspect, interrogation occurred. 77 Circuits that interpret Innis in this way are the First, 7 8 Seventh, 79 and Tenth 80 Circuits. 75. There is no one "majority" approach as there are four categories of interpretations and a fairly even distribution of circuits fall into each. Additionally, it should be noted that several circuits fall into more than one category. See infra note 108 and accompanying text. This suggests that even within a circuit there is confusion as to how to read Innis. 76. Killebrew v. Endicott, 992 F.2d 660, 663 (7th Cir. 1993). 77. See id. 78. See United States v. Conley, 156 F.3d 78, 83 (1st Cir. 1998) ("The statements that Blanchard made after that disclaimer, objectively viewed, were not reasonably likely to elicit a response from the appellant...."); see also United States v. Byram, 145 F.3d 405, 410 (1st Cir. 1998) ("We accept that Madore questioned Byram in good faith and did not consciously aim at implicating him in a crime, yet by any objective test, the threat that Byram would be implicated in a possession charge was clear."). 79. See United States v. Westbrook, 125 F.3d 996, 1002 (7th Cir 1997) ("Following Innis and the law of our circuit, we consider whether a reasonable objective observer would have believed that the two questions claimed by Mr. Westbrook to have been unlawful interrogation were in fact 'reasonably likely to elicit' an incriminating response."); Enoch v. Gramley, 70 F.3d 1490, 1499 (7th Cir. 1995), Killebrew, 992 F.2d at 663. It is interesting to note that in Killebrew the Seventh Circuit recognized that the Innis test may involve the perceptions of the suspect by quoting that portion of the Innis opinion. Killebrew, however, takes a completely objective approach without dealing with the suspect's perceptions. Killebrew, 992 F.2d at See United States v. Gay, 774 F.2d 368, 379 n.22 (10th Cir. 1985) ("It appears from a reading of the language employed by the Court in Rhode Island v. Innis that whether a question or action is one reasonably likely to elicit an incriminating response is judged by an objective standard."). Several state courts have also adopted the objective interpretation. See, e.g., State v. Smith, 612 A.2d 231, 233 (Me. 1992) ("The test for determining whether a police officer's statement is the functional equivalent of interrogation reasonably likely to elicit an incriminating response is an objective one."); State v. Gibson, 422 N.W.2d 570, 575 (Neb. 1988) ("[A]n objective standard is applied: Would a reasonable and disinterested person conclude that police conduct, directed to a suspect or defendant in custody,

12 CREIGHTON LAW REVIEW [Vol. 33 B. THE OBJECTIVE INTERPRETATION PLUS: INTERPRETING INNIS AS AN OBJECTIVE TEST PLUS AN INQUIRY INTO THE POLICE OFFICER'S INTENT The second interpretation of Innis is as an objective test with a "secondary" inquiry into the police officer's intent. Courts interpreting Innis this way reason that although the Innis test is "an objective inquiry; the subjective intent of the officer is relevant but not dispositive." 8 1 Courts provide little, if any, justification for examining an officer's intent. Courts following this interpretation, however, usually cite to footnotes seven and nine of Innis for authority. 8 2 In practice, courts apply this interpretation of the Innis test inconsistently. One application is to strictly follow the test as laid out. That is, a court makes an objective determination of whether an officer's words or actions were likely to cause an incriminating statement and also examines if the officer intended to evoke such a response. 8 3 Another application of the interpretation is to look solely at the officer's intent. If the officer intended to elicit an incriminating response, then the officer should have known that her words or actions were reasonably likely to do so. 8 4 would likely elicit an incriminating response from that suspect or defendant?"); State v. Guajardo, 605 A.2d 217, 219 (N.H. 1992) (objectively evaluating the suspect's perspective); State v. Saregent, 762 P.2d 1127, 1132 (Wash. 1988) (noting that "[t]he standard is an objective one, focusing on what the officer knows or ought to know will be the result of his words or action."); State v. Mitchell, 482 N.W.2d 364, 370 (Wis. 1992) (noting that Innis requires a court to ask if "an objective observer could foresee that the officer's conduct would elicit an incriminating response" and concluding that "an objective observer would foresee that [the officer's conduct] would elicit an incriminating response"). 81. United States v. Bogle, 114 F.3d 1271, 1275 (D.C. Cir. 1997). 82. Rhode Island v. Innis, 446 U.S. 291, n.7, 303 n.9 (1980); see United States v. Bentley, No , 1994 WL , at *5 (9th Cir. Aug. 4, 1994); United States v. Comosona, 848 F.2d 1110, 1113 (10th Cir. 1988); United States v. Brown, 720 F.2d 1059, (9th Cir. 1983) (quoting footnote seven and footnote nine of Innis). Footnote seven reads: This is not to say that the intent of the police is irrelevant, for it may well have bearing on whether the police should have known that their words or actions were reasonably likely to evoke an incriminating response. In particular, where a police practice is designed to elicit an incriminating response from the accused, it is unlikely that the practice will not also be one which the police should have known was reasonably likely to have that effect. Innis, 446 U.S. at 301 n.7. Footnote nine reads: "The record in no way suggests that the officers' remarks were designed to elicit a response." Id. at 303 n See Bentley, 1994 WL at *5-6, * See United States v. Booth, 669 F.2d 1231, (9th Cir. 1981) (noting the potential for abuse by police officer's who deliberately elicit an incriminating statement under the guise of "objective" or "neutral" information and concluding that the test, therefore, is whether "the police should have known that a question was reasonably likely to elicit an incriminating response.") ; see also Comosona, 848 F.2d at 1110, 1113; Jacobs v. Singletary, 952 F.2d 1282, 1291 n.8 (11th Cir. 1992) (laying out the interroga-

13 20001 REVISITING RHODE ISLAND v. INNIS It is not surprising that the interpretation is applied inconsistently. Determining if interrogation has taken place is a factual inquiry. 8 5 When courts are confronted with facts that suggest an officer intended to elicit an incriminating response, the analysis is easy. However, when an officer's intent is not easily ascertainable, courts must determine "objectively" if interrogation has taken place. 86 In this scenario, the officer's intent aids in the determination, but is not dispositive. The Ninth, 8 7 Tenth, 8 8 Eleventh, 8 9 and the Federal Circuit for the District of Columbia 90 interpret Innis in this way. tion "should have known test" and examining the questioning officer's intent); Bogle, 114 F.3d at See Booth, 669 F.2d at It is not surprising that an officer's intent may not be easily ascertainable. Rationally, an officer has little incentive to testify that it was her intent to elicit an incriminating response from a suspect. Nonetheless, some courts have been able to learn an officer's intent. See Comosona, 848 F.2d at 1113 (finding that the arresting officer did not intend to elicit an incriminating response from his suspect, the court noted that "Agent Babcok testified at the suppression hearing that he gave Comosona his card in case 'he had any questions or... wanted to initiate the interview later on, or wanted to advise his lawyer.., or his relatives who the agent was."'); see also Singletary, 952 F.2d at 1292 n.8 ("Detective Hill's conceded purpose in questioning Jacobs was essentially to 'open up a more generalized discussion relating directly or indirectly to the investigation.'"). 87. See United States v. Carmargo, No , No , 1994 WL , at *4 (9th Cir. Aug. 3, 1994) ("The test is objective; 'the subjective intent of the police, while relevant, is not conclusive.'"); see also Bentley, 1994 WL , at *3-7; United States v. Henley, 984 F.2d 1040, 1043 n.3 (9th Cir. 1993) ("The officer's intention in asking the question, although one factor in whether he should have anticipated an incriminating response, is not determinative."); Brown, 720 F.2d at ; Booth, 669 F.2d at See Comosona, 848 F.2d at 1113 ("We are mindful that Agent Babcock's intent is not determinative here, but it 'may well have a bearing on whether the police should have known that their words or actions were reasonably likely to evoke an incriminating response.'"). 89. See Singletary, 952 F.2d at 1291 n.8 (citing Innis for the proposition that "intent of police [is] relevant to determining whether questioning constitutes 'interrogation.'"). 90. See Bogle, 114 F.3d at 1275 ("This is an objective inquiry; the subjective intent of the officer is relevant but not dispositive."). States have also followed this interpretation. See, e.g., State v. Evans, 523 A.2d 1306, (Conn. 1987) (The Connecticut Supreme Court noted that the Innis test is "objective [, the] subjective intent of the police officer is relevant [although] not conclusive." The Court found that the questions asked of the suspect were objectively neutral. Moreover, there was nothing to suggest an improper motive on the part of the police.); Barfield v. State, 402 So. 2d 377, (Fla. 1981) (noting that the "guideline is whether the officer's statement was designed or could reasonably be expected to elicit an incriminating response. In other words, we must determine whether the appellant's statement was the intentional result of interrogation...."); Commonwealth v. Brant, 406 N.E.2d 1021, 1026 (Mass. 1980) (noting that "[tihe test is an objective one" and the "intent of the authorities is not conclusive. Nevertheless, [the authorities] intent bears on the question on whether they should have known that their words and actions were likely to evoke an incriminating response." In this case, "[s]ince the motion judge found... that [the authorities'] words and conduct were designed to elicit an incriminating response from Brant [the suspect], it is indicative that the practice was one

14 CREIGHTON LAW REVIEW [Vol. 33 C. THE SUBJECTIVE INTERPRETATION: INTERPRETING INNIS AS A SUBJECTIVE TEST The third interpretation of Innis is as a subjective test focusing on the subjective beliefs of the suspect. Under this interpretation, if a suspect subjectively believed that he had been interrogated, courts will find that an officer should have reasonably known that her words or actions were likely to elicit an incriminating response. Courts following this interpretation reason, citing Innis, that "[t]he focus [of the Innis test] is on the suspect's perceptions rather than the intentions of the police." 9 1 Courts applying the subjective interpretation of the Innis test tend to focus, as Innis stipulates, on the environment created by the police. 9 2 Thus, interrogation has occurred when a suspect is subjected to compelling influences or psychological ploys, 93 a level of compulsion "greater than subtle," 94 or the suspect is intimidated or subjected to coercion. 9 5 The Fourth, 9 6 Sixth, 97 Eighth, 98 Ninth, 99 and Eleventh Circuits interpret Innis in this way. which they should have known was reasonably likely to have that effect."); State v. Ladd, 302 S.E.2d 164, 174 (N.C. 1983) ("As noted in Innis, the prior knowledge of the police and the intent of the officer in questioning the defendant is highly relevant to whether the police should have known a response would be incriminating."). 91. United States v. Jones, No , 1995 U.S. App. LEXIS 26112, at *4 (4th Cir. Aug. 24, 1995). The Innis Court noted that "[t]he latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police." Rhode Island v. Innis, 446 U.S. 291, 301 (1980). 92. Innis notes that the focus on the suspect's perceptions "reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police." Innis, 446 U.S. at See United States v. Payne, 954 F.2d 199, 203 (4th Cir. 1992) (determining that the suspect was not interrogated, the court reasoned that "Payne 'was not subjected to compelling influences, psychological ploys, or direct questioning"'). 94. United States v. Ronayne, Nos , , 1995 U.S. App. LEXIS 10085, at *19-20 (6th Cir. May 2, 1995) (finding that no interrogation took place, the court reasoned that "[tihe agents' explanation to LaBarrie's mother... was not compulsion at all, subtle or otherwise"). 95. Rembao v. Prunty, No , 1998 U.S. App. LEXIS 30107, at *3 (9th Cir. Nov. 23, 1998) (determining that the suspect was not interrogated, the court noted that the suspect "showed no hint of being intimidated by the fact that... [he was] at the police station. He spoke freely and at his own peril."). 96. See Jones, 1995 U.S. App. LEXIS 26112, at *4 ("The focus is on the suspect's perceptions rather than the intentions of the police."); see also Payne, 954 F.2d at 203. The Fourth Circuit's position has recently been made unclear by United States v. Dickerson, 166 F.3d 667 (4th Cir. 1999), cert. granted, 120 S. Ct. 578 (1999). In Dickerson, the Fourth Circuit held that Congress had overruled Miranda by enacting 18 U.S.C which sought to make it easier for Federal prosecutors to use voluntary confessions. Finding that the district court erred in deciding to suppress Dickerson's confession obtained in "technical violation of Miranda," the court reasoned that 3501, rather than Miranda, governs the admissibility of confessions in federal court. See Dickerson, 166 F.3d at 667. The effects of Dickerson may never be truly felt as some commentators believe that the Supreme Court will overturn the Fourth Circuit. See Brooke A. Mas-

15 2000] REVISITING RHODE ISLAND v. INNIS D. THE MIXED INTERPRETATION: INTERPRETING INNIS AS A MIXED TEST The final interpretation of Innis is as a mixed test. Courts interpreting Innis in this way combine two or three factors to determine if interrogation occurred. Under this interpretation, courts generally ters, Va. Ruling on 'Miranda' Appears Headed for High Court, WASHINGTON POST, Feb. 11, 1999, at B9. Furthermore, it is unclear if federal prosecutors in the Fourth Circuit will follow Dickerson, or rather continue to follow Miranda. See William Glaberson, After 33 Years of Controversy, Miranda Ruling Faces Its Most Serious Challenge, N.Y. TIMES, Feb. 11, 1999, at A24. Regardless, at this time Miranda no longer governs voluntary confessions in the Fourth Circuit which certainly puts into question the legitimacy of Miranda's progeny. No court within the Fourth Circuit, however, has issued an opinion dealing with the interplay between Innis and Dickerson. 97. See Ronayne, 1995 U.S. App. LEXIS 10085, at *19-20 (where the court noted that the test laid out in Innis focused on the suspect's perspective and where the court examined if the suspect's statements were made subject to compulsion). 98. See United States v. Criswell, 696 F.2d 636, 638 (8th Cir. 1983) ("Appellant's trial testimony makes clear that he did not believe the DEA agents were attempting to elicit an incriminating response from him. Appellant characterized the conversation in the automobile as a 'genuine, a general conversation.'"). 99. See Prunty, 1998 U.S. App. LEXIS at *3 (noting that the Innis Court reasoned that "coercion is viewed from the perspective of the suspect and not the officer's intent") See United States v. Stubbs, 944 F.2d 828, 832 (11th Cir. 1991) ("The Innis Court made clear, however, that the definition of whether the police practice was so coercive that it was likely to evoke an incriminating response 'focuses primarily upon the perceptions of the suspect, rather than the intent of the police.'"); see also Christopher v. Florida, 824 F.2d 836, 842 n.17 (11th Cir. 1987) ("The determination of whether questioning constituted interrogation, as opposed to clarification, 'focuses primarily upon the perceptions of the suspect.'"). State courts have also interpreted Innis as a subjective test. See, e.g., Stahl v. State, 426 So. 2d 917, 918 (Ala. 1983) ("The exchanges in question between Stahl and the officers, together with the circumstances under which they were made, do not reasonably appear to have made it subjectively likely that he would have responded as he did."); People v. Bradford, 929 P.2d 544, 562 (Cal. 1997); People v. Trujillo, 784 P.2d 788, (Colo. 1990) (noting that the Innis test rests primarily on the suspect's perceptions rather then the police officer's intent); People v. Olivera, 647 N.E.2d 926, 931 (Ill. 1995) (finding that the Innis test focuses primarily on a suspect's perspective); Wells v. Commonwealth, 892 S.W.2d 299, 302 (Ky. 1995); State v. Tibiatowski, 590 N.W.2d 305, 309 (Minn. 1999) ("The analysis of the questioning must focus on the perspective of the suspect, not the people."); Koza v. State, 718 P.2d 671, 675 (Nev. 1986) (where the court, although slightly objectifying the inquiry, noted that after "[iflocusing on the perception of Maggie [the suspect], rather than the intent of the police, as Innis requires...it would be apparent that the detectives were hoping to elicit a statement"); State v. Williams, 452 N.E.2d 1323, 1333 (Ohio 1983) ("The police officers' constant reminders to appellant, a young man facing murder and robbery charges, that they know his accomplices' side of the story but not his, can certainly be expected to engender incriminating statements, particularly when appellant is aware that his accomplices have already implicated him. It is hardly surprising then that, under such circumstances, an accused, feeling himself evidentially outnumbered, will admit to some degree of complicity in the criminal offense. This is exactly what happered."); State v. FitzGerald, 683 A.2d 10, 13 (Vt. 1996) (noting that although the focus of the Innis test "is on the perception of the suspect," a police officer is not responsible "for the unforeseen results of their words or actions").

16 CREIGHTON LAW REVIEW [Vol. 33 begin with the premise that both the suspect's perceptions and the officer's intent are relevant in the inquiry Courts then fall into one of two groups. The first group of courts focus on both the suspect's subjective beliefs and the intentions of the officer The second group of courts use an objective inquiry with an additional examination into the suspect's subjective beliefs and the police officer's intent The Third, 10 4 Fifth,' 0 5 Sixth, 10 6 and Ninth Circuits 101. See United States v. Soto, 953 F.2d 263, 264 (6th Cir. 1992) (finding that an officer's intent and a suspect's perception as measured from the police officer's perspective is relevant to the inquiry) See United States v. Criso, 725 F.2d 1228, 1232 (9th Cir. 1984) (where the court examined both the subjective beliefs of the suspect and the intent of the arresting officer); see also United States v. Benton, 996 F.2d 642, 643 (3d Cir. 1993) (focusing on both the officer's intent and the perceptions of the suspect) See United States v. Mesa, 638 F.2d 582, 590 (3d Cir. 1980) (The court recognized that the test is objective and found that the conversation between officer and suspect was "nonadversarial and noninquisitive in nature" and the officer's tone "conveyed little of the subtle compulsion that characterizes police interrogation." Moreover, the court noted that the "concern expressed in Miranda that a defendant might be 'subjugated to the will of the examiner' is not present here." Additionally, the court found that "[t]he comments interjected by the [officer] were not designed to elicit an incriminating response from [the suspect], but were calculated to convey sympathy and understanding...."); see also United States v. Hall, No , 1995 U.S. App. LEXIS 23769, at *4 (9th Cir. May 4, 1995) (phrasing the interrogation test as an objective inquiry and examining both the suspect's and the officer's perspectives) See Benton, 996 F.2d at.644 (noting that "this [was] not a situation in which the suspect would have felt compelled to respond to the arresting officer's statement," that "it would be unreasonable to conclude that the police intentionally created circumstances likely to elicit a statement from [the suspect]" and that the suspect's "remarks were unforeseeable"); see also Mesa, 638 F.2d at See United States v. Webb, 755 F.2d 382, (5th Cir. 1985) See Soto, 953 F.2d at 264 (focusing on the intent of the officer and the perceptions of the suspect) See Criso, 725 F.2d at 1232 (while noting that the test is objective, the court then examined the intent of the officer and the suspect's perceptions); see also United States v. Thierman, 678 F.2d 1331, 1335 & 1337 (9th Cir. 1982) (noting that both an officer's intent and a suspect perceptions are relevant). Several states have followed some version of the mixed interpretation. See, e.g., State v. Finehout, 665 P.2d 570, 574 (Ariz. 1983) ("The focus in ascertaining whether particular police conduct amounts to interrogation, then, is not on the form of words used, but [on] the intent of the police officers and the perceptions of the suspect."); Whalen v. State, 434 A.2d 1346, 1351 (Del. 1980) ("We first focus on the behavior of the law enforcement officers to determine if their interrogation or conduct during their contact with defendant was such as to overbear his will. There is no objective evidence in the record of any such conduct on the part of the police, nor is there any evidence that the defendant's statements were the product of words or actions on the part of the police which subjectively induced defendant to speak out against his will."); Souffle v. State, 439 A.2d 1127, 1134 (Md. Ct. Spec. App. 1982) ("Although Innis suggests that we focus primarily upon the perceptions of the suspect to make [the determination if interrogation occurred], it acknowledges the relevancy of police interest as well."); Commonwealth v. Sheriff, 680 N.E.2d 75, 83 (Mass. 1997) (reasoning that the primary focus of the test was a suspect's perceptions, however, an officer's intent is not irrelevant to the inquiry); Holyfield v. State, 711 P.2d 834, 838 n.4 (Nev. 1985) ("Although the court in Innis stated that this definition of interrogation primarily focuses on the perception of the suspect, this was to remove the necessity of proving the underlying intent of the