Policy and procedures for interrogations background
Custodial interrogations of suspects and the statements and confessions that are elicited are vitally important in the preparation of criminal cases. Confessions speed up the procedures in our criminal justice system since it avoids going through the lengthy trial. It also avoids delays in the criminal prosecutions of the accused and helps in the reduction of criminal cases already filed in courts. The ends of justice, however, will not be attained if the suspects will be physical, mentally or emotionally coerced into making admissions and confessions about the commission of a crime. It is hereby the policy of the Franklin Police Department that all confessions coming from the accused must be free, voluntarily and intelligently taken by a police officer.
To ensure that written statements and confessions of the accused will be admissible in evidence, statements and confessions must be given voluntarily and with due consideration for the suspect’s right to silence and right to counsel. Therefore, it is the policy of this law enforcement agency that all officers not only understand the relevant laws and court opinions but they must also strictly follow this agency policy in order to guard against any charges of police coercion during interrogation. Definitions
Custody: A custodial situation exists when an officer tells a suspect that he is under arrest.
Comments: Critiques
It has been held in the case of Stansbury v. California (513 US 318) that “an officer’s views concerning the nature of an interrogation, or beliefs concerning the potential culpability of the individual being questioned, may be one among many factors that bear upon the assessment whether that individual was in custody, but only if the officer’s views or beliefs were somehow manifested to the individual under interrogation and would have affected how a reasonable person in that position would perceive his or her freedom to leave.”
In this case, once an officer tells a suspect that he is under arrest for the commission of the crime, it follows that the suspect is already in custody. The suspect is thereby restricted and limited in his freedom of movement.
However, not all instances of arrests follow the standard procedure of the police officer telling the suspect that he is under arrest. Most of the time, the suspect is subjected to a situation where he is deprived of his freedom of movement but he is yet to be informed that he is under arrest. In this scenario, the suspect must be warned of his Miranda Rights prior to interrogation.
The ultimate test actually is not the declaration of the police officer that the person is under arrest rather whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. This was the doctrine enunciated in California v. Beheler (464 US 1121) This means that once the suspect is thrust in an unfamiliar atmosphere together with the police officers and he is restricted in his freedom of movement then he is under police custody.
Consider also the case of Orozco v. Texas (394 US 324). In this case the US Supreme Court ruled that the use of admissions at petitioner’s trial for murder which were obtained by officers who, while he was in his bedroom at the boarding house where he lived, questioned him about incriminating facts without first giving him the Miranda warnings was held to have violated his right against self-incrimination. It must be noted herein that though the suspect was in a familiar location, he was still deprived of freedom in a significant away.
Interrogation: Interrogation is the direct questioning of a suspect about a crime or suspected crime.
In the case of Miranda v. Arizona (384 US 436), the coercive nature of custodial interrogations was discussed. This case defined custodial interrogation as questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.
The direct questioning of a suspect about the commission of a crime is considered an interrogation because here the police officers directly ask from the suspect whether he is involved in the commission of a crime.
This definition, however, is incomplete as it fails to take into account those statements volunteered by the suspect and any act of police officer which is functionally equivalent of questioning whereby the police officers elicit incrimination response from the suspect. Thus, if the police officer uses deceptive strategies such as the giving of false and inaccurate legal advice to clients then that is covered by the Miranda Warnings. For instance, in the case of Lynum v. Illinois (372 US 528), the suspect was forced to confessing to the crime after being threatened by the police officers that her children may be taken by relief authorities. In these cases, there is no direct questioning of a suspect yet the police officer is able to elicit the incriminating response from the suspect.
Procedure
Officers shall comply with the following procedures regarding the taking of custodial statements and confessions. 1. During custodial interrogation, officers should employ the “question first” interrogation technique. The “question first” technique involves the interrogator first questioning the suspect until sufficient incriminating statements are made, taking a brief break, then providing Miranda warnings to the suspect, then repeat the interrogation until the questioner gets the answers that the suspect already provided once.
This procedure is flawed. If this procedure will be adopted then any confession obtained from such questioning will be tainted with illegality. The suspect will only move for the suppression of evidence in court so that the written confessions will not be admitted as evidence. When this happens and there is no other physical evidence available to convict the accused, then the case may only be dismissed.
Under the case of Miranda v. Arizona, the person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him.
The case also explicitly declared that if the suspect indicates, prior to or during questioning, that he wishes to remain silent, the interrogation must stop. If he states that he wants an attorney, the questioning must cease until an attorney is present. It needs to be emphasized that even if the individual answers some questions during in-custody interrogation, he has not waived his privilege, and may invoke his right to remain silent thereafter.
2. The following represent examples of situations that do not require the issuance of Miranda warnings. Investigatory stop and frisk.
Following the doctrine enunciated in the case of Terry v. Ohio 392 U.S. 1, law enforcement officers may base on reasonable suspicion stop a person in a public place and ask questions to determine if the person has committed or is about to commit an offense and to frisk the person for weapons if the officer has reasonable concern for his or her own personal safety.
In this case, the police officers need only show that at the time of the stop they observed an unusual conduct that led them to reasonably conclude that (1) that criminal activity is about to take place or that criminal activity has just taken place and (2) that the person with whom he or she is dealing may be armed and presently dangerous. Thus, if the police officer discovers any evidence of a crime, then this evidence will be admissible as evidence against the suspect.
In these cases, the suspect does not have the privilege of the Miranda Warning because he is not under any intimidating, threatening and coercive environment which the law seeks to protect him from during custodial investigations. Also, the Miranda warnings seek to protect the suspect from the possibility that he may make statements that will incriminate himself.
However, once the accused is taken into custody by law enforcement officers and he is deprived of his freedom, it is at this point that the Miranda warnings must be given prior to any questioning that may be conducted by the police officers.
Questioning during a routine traffic stop or for a minor violation; to include driving while intoxicated (DWI) stops.
Law enforcement officers have the duty and responsibility to establish checkpoints and make stops of moving vehicles. This is in connection with the exercise of police power of the state which is for the benefit of the greater number of people. This way, the law enforcement officers get to stop people from driving while being under the influence of alcohol and avoid accidents in the streets.
In these cases, the law enforcement officers need not explain to the suspect the Miranda warnings because just like in the first scenario, the reason for the giving of Miranda Warnings does not exist. There is no intimidating, coercive, and threatening environment which is usually present during custodial investigations. There is also no need for incriminating statements to be taken from the suspect because he can at any time be subjected to tests to confirm if his alcohol level is up.
Any questioning initiated by law enforcement officers during routine traffic stops without first reciting the Miranda Warning is valid and constitutional. Any evidence against the accused that the police officer may discover as a result of these questioning is admissible in evidence.
Consider the case of Texas v. Brown, 460 U.S. 730. In this case, a Texas police officer stopped a car being driven by Brown in a routine driver’s checkpoint. While he was standing alongside the driver’s window, he asked for the driver’s license. At the same time, the police officer pointed his flashlight inside the car and noticed that between the two middle fingers of Brown’s right hand was a party balloon. Brown dropped the balloon to the seat beside him to open the glove compartment. Knowing that narcotics were frequently packaged in such balloons, he shifted his position to obtain a better view of what is inside the glove compartment. He noticed several small plastic vials, quantities of loose white powder and an open bag of party balloons. When Brown failed to show his driver’s license, the police officer instructed him to get out of the car. He picked the green balloon which seemed to contain a powdery substance. The police officer then informed Brown that he was under arrest. The illegal contraband found inside the car was seized.
In these cases, the suspect does not have the benefit of Miranda Warning and he may be arrested even without it. However, after his arrest and he is taken into custody by the law enforcement officers, the requirement of Miranda Warning must be observed prior to any questioning initiated by police officers.
During routine questioning at the scene of an incident or crime. The police officers usually conduct routine questioning at the scene of the crime. They ask the people within the vicinity of the place of the commission of the crime to determine whether the people have noticed something unusual which may help in the resolution of the crime.
If a neighbor happens to be approached by the police officers and he is asked routine questions, and in the course of such questioning he confesses to the commission of the crime, the confession is admissible in evidence against the neighbor. These kinds of questioning usually happen within the confines of the house of the person and so it is not possible to argue that the person was coerced, threatened and intimidated to make such a confession because such is not present in these cases. The police officers must, however, be warned that it is not an absolute rule that questioning inside the house of the suspect does not require the Miranda warning. Under the authority of the case of Orozco v. Texas, if the suspect was surrounded by 4 police officers in his own home where he was deprived of his freedom, he is considered to be under arrest and the Miranda warning must be given to him prior to any questioning
During voluntary appearances at the police facility.
In the case of Garrison v. Commonwealth, 36 Va. App. 298, The Supreme Court has stated: “Custody does not result merely because an individual is questioned in a coercive environment, or is the ‘focus’ of a criminal investigation. A person’s voluntary appearance at a police station, where he is immediately advised that he is not under arrest and from which he leaves ‘without hindrance’ [sic] at the end of an interview, indicates that he is not in custody ‘or otherwise deprived of his freedom of action in any significant way.'”
The case of Oregon v. Mathiason 492 U.S. 492 is instructive on the point of voluntary appearance of the suspect at the police facility. In this case, the Supreme Court ruled that, the act of a suspect involuntarily going over to the police facility after being invited by the police officer, and after being informed that he was not under arrest and that he is free to leave anytime he wants is not the custodial interrogation covered by the requirement of the Miranda warning. The court declared that “In the present case, however, there is no indication that the questioning took place in a context where respondent’s freedom to depart was restricted in any way. He came voluntarily to the police station, where he was immediately informed that he was not under arrest. At the close of a -hour interview, respondent did, in fact, leave the police station without hindrance. It is clear from these facts that Mathiason was not in custody “or otherwise deprived of his freedom of action in any significant way.”
It must, however, be emphasized that it is immaterial that it is at the initiative of the suspect that he is in a police facility. Even if the suspect himself voluntary goes to the police facility, coercion, intimidation, and threats may still be present at the moment the interrogation commences. Thus, if at first instance there was no intimidation present if later on the suspect no longer wishes to continue with the interrogation, but the police officers insist. Subsequently, he confessed to the crime under compulsion of physical harm, there will still be the violation of the suspect’s constitutional rights against self-incrimination.
When information or statements are made spontaneously, voluntarily and without prompting by police.
Statements spontaneously and voluntarily made by the person confessing to a crime is not covered by the protection of the Miranda Warning. It must be emphasized that the purpose of Miranda warning is not to hamper the police officers’ performance of their duties. It is not intended to restrict them in enforcing the law. Thus, if the police officers did not have the opportunity to inform the suspect of the Miranda warning and the latter confesses to the crime, the evidence will still be admissible.
To avoid the possibility of the suspect retracting his confessions it is advisable if the suspect will sign the confessions he made and he should be asked to execute an affidavit that he was not in any way harmed or coerced by the police officers in making the confession. It would also be advisable if there will be present at the time he gives his voluntary and spontaneous statements a lawyer or any of the suspect’s relatives.
When the officer needs information to end an “ongoing criminal activity such as kidnapping.” There are peculiar situations when the police officers need to do away with the police manual and instead become spontaneous in reacting to crimes. When a criminal activity is ongoing the police officer needs every bit of information that may help in avoiding loss of life and property. In these cases, taking into consideration the emergency nature of the situation, the police officer is not expected to adhere to the strict requirements of the Miranda doctrine.
When the officer believes that the public safety is at risk such as questioning that might locate a victim or save a human life. Very similar to the previous exception is the public safety exception which is best explained in the case of New York v. Quarles (467 US 649). In this case, two New York City police officers were approached by a woman. She reported to them that she had just been raped by a man who was now inside a nearby supermarket. She then described the man and informed them that he had been armed with a handgun. When the suspect saw one of the police officers entering the store he immediately ran to the back of the store. The officer chased him down, handcuffed him, and pat-searched him for weapons. The police officers, however, did not find a weapon during the past search though they noticed that he had a holster that was empty. They immediately asked him where the gun was located. Quarles nodded in the direction of some empty cartons and responded, “The gun is over there.” Officers then recovered the weapon.
In this case, if not for the circumstance of public safety the response made by the suspect telling the officers of the location of the gun would not have been admissible in evidence. Obviously, if the gun will not be retrieved by police officers and will remain inside the supermarket, such pose a continued danger to the public considering that any person may pick it up and use it.
3. Invoking the Right to Silence Officers may interrogate a suspect who has previously invoked his right to silence, if, after the passage of time, the suspect initiates communication with officers. Prior to questioning, however, Miranda Warnings shall be re-administered and a waiver obtained.
It is possible that in the middle custodial investigation, the suspect may invoke his right to silence. In this case, the police officers shall terminate the questioning and respect the wishes of the suspect. However, if the suspect, later on, decides to communicate with the police officers, they must ensure that the warnings must re-administered to the suspect and that he must sign a waiver form before questioning may begin. 4. Invoking the Right to Counsel A. If a suspect waives his right to counsel, a waiver shall be obtained prior to questioning. When a suspect makes reference to counsel but his intentions are unclear, officers may question the suspect further to clarify his intentions.
If the suspect indicates to the police officers at any time during the questioning that the suspect desires to consult with his lawyer, the investigation and interrogation shall immediately cease and he should be allowed to communicate with his lawyer. Efforts must be made so that the lawyer of choice of the suspect will be available. In case the suspect is an indigent and he cannot afford the services of a lawyer, a public lawyer will be made available
When a suspect invokes his right to counsel, police may reinitiate questioning if the suspect does not obtain counsel in a reasonable amount of time
B. When a suspect invokes his right to counsel, police may reinitiate questioning if the suspect does not obtain counsel in a reasonable amount of time.
If the suspect invokes his right to counsel, the questioning and interrogation shall immediately cease. In case, the client cannot afford the services of a lawyer but he has declared that he needs to consult with a lawyer, the police may not reinitiate questioning unless a lawyer has been made available to help the suspect.
Bibliographies
- California v. Beheler (464 US 1121
- Garrison v. Commonwealth, 36 Va. App. 298
- Lynumm v. Illinois (372 US 528
- Miranda v. Arizona (384 US 436),
- New York v. Quarles (467 US 649
- Orozco v. Texas (394 US 324)
- Oregon v. Mathiason 492 U.S. 492
- Stansbury v. California (513 US 318)
- Terry v. Ohio 392 U.S. 1
- Texas v. Brown, 460 U.S. 730