- Quarterly Review -
July 6, 2000 Vol. 1, Edition 4
EDITOR'S COMMENTS
THE NEWEST CONSTITUTIONAL RIGHT -
THE RIGHT TO MIRANDA WARNINGS
Jacquelyn Kuhens
Senior Legal Instructor
Until June 26, 2000, a person who was in custody and being subjected to police interrogation did not have a Constitutional right to be given Miranda warnings; Miranda warnings were just the mechanism by which a state or Federal law enforcement officer ensured that the subject of his custodial interrogation knew what his or her rights were before the interrogation began. If a law enforcement officer conducted a custodial interview without first giving Miranda warnings, it was not a Constitutional violation, and so the worst that could happen was the suppression of the improperly obtained statement. Today, because a person in custody has a Constitutional right to be given his Miranda rights, is it possible, even likely, that failure to give a subject Miranda rights will serve as the basis for a Bivens or Title 42, United States Code, Section 1983 civil rights claim? Only time will tell. Why did the Rehnquist Supreme Court, in an opinion authored by the Chief Justice himself, take this momentous step? To find the answer, we must look to the decision of Dickerson v. United States, 530 U.S. (June 26, 2000) itself.
The essence of the Rehnquist decision is that a simple voluntariness test is too difficult to apply when trying to determine whether a statement that is taken without the benefit of Miranda warnings is reliable enough to be presented to a jury. Until the decision in Miranda v. Arizona, 384 U.S. 436 (1966), the courts had fluctuated between concerns over meeting the requirements of the Fifth Amendment ("no person shall be compelled in any criminal case to be a witness against himself") and due process issues under the Fifth and Fourteenth Amendments, which required that no confessions should be coerced or obtained by overcoming a person's voluntary free will.
In Miranda, the Supreme Court found that custodial interrogations by their very nature are coercive, and that in order to combat the coercive atmosphere, a subject had to be informed, in language that he could understand, of four fundamental rights: the right to remain silent, the fact that anything he said could be used against him in court, the right to have an attorney present during questioning, and that one would be appointed to represent him prior to any questioning if he could not afford to hire one. In Dickerson, Chief Justice Rehnquist states that Miranda laid down "concrete constitutional guidelines for law enforcement agencies and courts to follow."
In his decision in Dickerson, the Chief Justice comes to the conclusion that the rights set forth in Miranda are constitutional in nature based upon the fact that the Miranda decision and its two companion cases were state cases, not Federal; the U.S. Supreme Court does not have supervisory jurisdiction over state courts, and therefore the decision must have been Constitutionally based. The Chief Justice states: "Miranda requires procedures that will warn a suspect in custody of his right to remain silent and which will assure the suspect that the exercise of that right will be honored." The opinion further states that even if this Court would not have issued Miranda in the first place, because it is already in place, there must be compelling reasons to overturn it, and none have been presented. Miranda warnings have become such a part of our culture that this Court will not overturn them, and now they have Constitutional stature.
What is the practical result of Dickerson to a Law Enforcement Officer? Because of this decision, Law Enforcement Officers will need to be even more careful when evaluating a situation to determine whether, from the perspective of the subject, he or she reasonably could feel that it was a custodial interview. If the answer to that question is yes, then Miranda warnings must be given fully and properly. If an officer fails to give Miranda warnings in a situation that is later determined to have required them, under the decision issued in Dickerson, this would appear to be a violation of the subject's Constitutional rights. Will the failure to give Miranda warnings be grounds for a Bivens or §1983 action? Unfortunately, I believe that the answer, as a result of this decision, will be yes.
Jacquelyn Kuhens is a 1982 graduate of Depauw University, Greencastle, Indiana, and a 1985 graduate of Washington University School of Law in St. Louis, Missouri. Prior to becoming a member of the Legal Division, Ms. Kuhens served as an Assistant United States Attorney in the Eastern District of Kentucky from 1989 to 1994, specializing in OCDETF, criminal appeals, and white collar crime. She has substantial litigation experience from both the prosecution and defense perspectives.
A "MURDER SCENE" EXCEPTION TO THE 4TH AMENDMENT
WARRANT REQUIREMENT
Bryan R. Lemons
Senior Legal Instructor
It is firmly ingrained in our system of law that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well-delineated exceptions."(1) This brief statement emphasizes the preference in this country for obtaining warrants prior to conducting searches. Nonetheless, the courts have outlined a number of "established and well-delineated" exceptions to the warrant requirement of the Fourth Amendment, including, but certainly not limited to, consent searches; searches of vehicles; searches incident to arrest; and inventory searches. However, one exception to the warrant requirement which the Supreme Court has expressly and repeatedly refused to recognize is a general "murder scene" exception. Even so, in speaking with numerous Federal law enforcement officers, many of whom have a state or local law enforcement background, it appears that a misconception regarding this point continues to exist. Most of those with whom I have spoken believe that such an exception is alive and well, and that in the course of investigating a homicide, no warrant is required to "process" the crime scene. The purpose of this article is to review the Supreme Court's rulings on this issue, so that Federal law enforcement officers are fully cognizant of how it has been addressed by the Court in the past.
The Supreme Court first addressed this issue in the 1978 case of Mincey v. Arizona.(2) In Mincey, an undercover officer was shot and killed by the defendant during a narcotics raid. In addition to the undercover officer, the defendant and two other persons in the apartment were wounded in the shootout. The officers on scene secured the apartment, made a search for additional victims, and arranged for medical assistance. However, pursuant to police directives, they refrained from any further investigation. Within 10 minutes of the shooting, two homicide detectives arrived at the apartment. After supervising the removal of the undercover officer and the other wounded persons, the homicide detectives began to gather evidence. As described by the Supreme Court:
"Their search lasted four days, during which period the entire apartment was searched, photographed, and diagramed. The officers opened drawers, closets, and cupboards, and inspected their contents; they emptied clothing pockets; they dug bullet fragments out of the walls and floors; they pulled up sections of the carpet and removed them for examination. Every item in the apartment was closely examined and inventoried, and 200 to 300 objects were seized. In short, Mincey's apartment was subjected to an exhaustive and intrusive search. No warrant was ever obtained."(3)
At his trial, Mincey's motion to suppress the evidence from the search was denied. The Arizona Supreme Court affirmed the trial court's ruling, holding that the "... warrantless search of the scene of a homicide - or of a serious personal injury with likelihood of death where there is reason to suspect foul play - does not violate the Fourth Amendment ... where the law enforcement officers were legally on the premises in the first instance ...."(4)
In a unanimous opinion, the U.S. Supreme Court reversed, concluding that "... the 'murder scene' exception created by the Arizona Supreme Court is inconsistent with the Fourth and Fourteenth Amendments - that the warrantless search of Mincey's apartment was not constitutionally permissible simply because a homicide had recently occurred there."(5) The Court expressly rejected the State's assertion that the search of Mincey's apartment was justified on the basis of "exigent" circumstances.
"Except for the fact that the offense under investigation was a homicide, there were no exigent circumstances in this case .... There was no indication that evidence would be lost, destroyed, or removed during the time required to obtain a search warrant. Indeed, the police guard at the apartment minimized that possibility. And there is no suggestion that a search warrant could not easily and conveniently have been obtained. We decline to hold that the seriousness of the offense under investigation itself creates exigent circumstances of the kind that under the Fourth Amendment justify a warrantless search."(6)
While rejecting the State's argument regarding exigent circumstances, the Supreme Court nonetheless noted a number of permissible actions that a law enforcement officer may take at a homicide scene in the absence of a warrant. First, if law enforcement officers reasonably believe that a person inside a premises is in need of emergency assistance, they may make a warrantless entry and conduct a search for victim(s). Additionally, when the police arrive at a homicide scene, they may immediately conduct a warrantless search to determine if there are additional victims or if the killer is still on the premises.(7) Any evidence observed by the officers during the course of these lawful activities may be seized pursuant to the plain view doctrine. However, the scope of the search conducted must be consistent with a legitimate search for emergency reasons. The Court emphasized that "... a warrantless search must be 'strictly circumscribed by the emergencies which justify its initiation'"(8) Finally, the officers may secure the premises for a reasonable amount of time necessary to secure a search warrant.(9)
In this case, the initial entry by the officers was justified. However, once all the shooting victims had been evacuated, and the officers had secured the premises to prevent the destruction or removal of evidence, the emergency situation justifying the warrantless entry ended. To continue searching, the officers were required to have either a warrant or an exception to the warrant requirement.
Such was the state of the law when, in 1984, the Supreme Court decided the case of Thompson v. Louisiana.(10) In Thompson, the defendant fatally shot her husband, then attempted to commit suicide through an overdose of pills. However, before losing consciousness, the defendant placed a telephone call to her daughter and revealed what had happened. The daughter immediately notified the police, who arrived at the house and located the victim and the defendant. Both were taken to the hospital for medical assistance, and the residence was secured. Just over ˝ hour later, two homicide detectives arrived and, without a warrant, began a "general exploratory search for evidence"(11) that lasted approximately two hours. Three key pieces of evidence were discovered during this warrantless search: First, a pistol found inside a chest of drawers in the same room where the victim's body was found; second, a note found in a wastebasket in an adjoining bathroom; and third, a suicide note found inside an envelope on top of a chest of drawers. Citing their earlier decision in Mincey, the Supreme Court held that the warrantless search violated the Fourth Amendment, in that no warrant was obtained and the search did not fall within one of the recognized exceptions to the warrant requirement.
"In Mincey v. Arizona ... we unanimously rejected the contention that one of the exceptions to the Warrant Clause is a 'murder scene exception.' Although we noted that police may make warrantless entries on premises where 'they reasonably believe that a person within is in need of immediate aid ... and that 'they may make a prompt warrantless search of the area to see if there are other victims or if a killer is still on the premises,' ... we held that 'the murder scene exception' ... is inconsistent with the Fourth and Fourteenth Amendments ...."(12)
The Court noted that the initial entry by the officers into the defendant's home was justified to look for victims or others in need of emergency medical assistance. However, once both the defendant and her deceased husband were removed from the residence, the emergency justifying the warrantless entry ended, especially in light of the fact the residence was secured so as to effectively prevent the loss or destruction of evidence located within. The "general exploratory search" that was commenced required either a search warrant or an "established and well-defined" exception, neither of which was present in this case.
In a more recent opinion, the Supreme Court once again expressly refuted any notion that a "murder scene" exception to the warrant requirement of the 4th Amendment exists. In Flippo v. West Virginia,(13) police officers arrived at a cabin in a state park, where the defendant notified them he and his wife had been attacked and his wife had been murdered. Officers immediately entered the cabin and located the body of the victim. The defendant was transported to the hospital, while the officers secured the crime scene. A few hours later, the officers reentered the cabin and began to "process" the crime scene. "For over 16 hours, they took photographs, collected evidence, and searched through the contents of the cabin."(14) However, no search warrant had been obtained. During this search, the officers found "... a briefcase, which they, in the ordinary course of investigating a homicide, opened, wherein they found and seized various photographs and negatives."(15) The photographs found suggested a possible motive for the murder. The Circuit Court of West Virginia denied the defendant's motion to suppress the evidence. However, the Supreme Court reversed, concluding that the photographs had been discovered during a warrantless search for which no exception to the warrant requirement existed. Again, the Court emphasized that there is no "murder scene" exception to the Fourth Amendment's warrant requirement. Further, they determined that:
"It seems implausible that the court found that there was a risk of intentional or accidental destruction of evidence at a 'secured' crime scene or that the authorities were performing a mere inventory search when the premises had been secured for 'investigative purposes' and the officers opened the briefcase 'in the ordinary course of investigating a homicide.'"(16)
In sum, the Supreme Court has addressed the issue of a "murder scene" exception to the warrant requirement on three separate occasions spread out over a 20-year period. In each instance, the Court has emphatically rejected the notion that such an exception exists. Nonetheless, as noted above, there appears to be a misconception among law enforcement officers regarding the viability of a "murder scene" exception to the warrant requirement. This misconception can most likely be attributed to the concept of "standing."
"Standing" simply means that an individual has a reasonable expectation of privacy (REP) in the item or place searched. If an individual does not have REP, he or she cannot object to the illegality of the search, because they have no standing to do so. In most instances where officers search a premises under the fictional "murder scene" exception, the evidence found is admissible against the defendant, not because the warrantless search was permissible, but because the defendant had no REP in the premises and cannot object to the legality of the search. For example, assume A (an intruder) breaks into B's home and murders B. Officers arrive and conduct a warrantless search of B's premises, which results in an abundance of evidence being seized. While technically the search was in violation of the Fourth Amendment, the evidence found in B's home would still be admissible against A, because A has no standing to object to the impermissible search of B's home. This result can ultimately lead law enforcement officers to the false conclusion that search warrants are not required when processing a "murder scene." The problem with such a conclusion, however, is clearly illustrated in Mincey, Thompson, and Flippo, cases in which the defendant had REP in the premises and where the unlawful search resulted in the suppression of evidence.
Bryan Lemons is a Senior Legal Instructor at the Federal Law Enforcement Training Center. Prior to joining the Legal Division, Mr. Lemons served in the U.S. Marine Corps from 1989 to 1999. He is a graduate of the St. Louis University School of Law (J.D., 1992).
SUPREME COURT CASES
TOPIC: SEARCH AND SEIZURE
Bond v. United States
120 S.Ct. 1462 (2000)
FACTS: A Border Patrol agent entered a bus to check the immigration status of the occupants. After satisfying himself that the passengers were lawfully in the United States, the agent walked toward the front of the bus, squeezing the soft luggage passengers had placed in the overhead storage bin. The agent felt a "brick-like" object in a green canvas bag. After verifying with the defendant if he owned the bag, the agent obtained consent to search its contents. He found a quantity of methamphetamine wrapped in duct tape, rolled in a pair of pants.
ISSUE: Whether the agent's squeezing of the passengers' containers was a "search" under the Fourth Amendment?
HELD: Yes. The defendant did not surrender his reasonable expectation of privacy in a container by placing it in an overhead bin accessible by the public.
DISCUSSION: A search is defined as a government intrusion on a reasonable expectation of privacy. The government argued that the defendant did not have a reasonable expectation of privacy because he exposed his container to the public. The defendant could not have stopped any other member of the public from handling his container. Therefore, he should not have the ability to complain when the government does. The Court acknowledged that persons do not maintain a reasonable expectation of privacy in things that can be seen from public places. One cannot expect members of the public to ignore items making their way about public areas. This does not mean that introducing items into the public allows others to manipulate the property. It is true that fellow passengers and bus employees may handle the containers found in the overhead bin. However, the defendant would not have expected anyone to "feel the bag in an exploratory manner." The Border Patrol agent exceeded the scope of what the public could have been expected to do, thereby intruding on the defendant's reasonable expectation of privacy.
(For further information on this case, please contact John Besselman)
TOPIC: SELF-INCRIMINATION
United States v. Hubbell
2000 U.S. Lexis 3768
FACTS: In December 1994, the defendant pled guilty to charges of mail fraud and tax evasion arising out of his practices as a member of an Arkansas Law firm. The plea agreement required the defendant to provide the prosecution with "full, complete, accurate, and truthful information" about matters relating to the Whitewater investigation. The subsequent prosecution resulted from the government's attempt to determine whether the defendant had violated that promise. While incarcerated, the defendant was served with a subpoena calling for the production of eleven (11) broad categories of documents before a grand jury. Subsequently, the defendant appeared before the grand jury and invoked his Fifth Amendment privilege against self-incrimination. In response to questioning, the defendant refused "to state whether there [were] documents within [his] possession, custody, or control responsive to the subpoena." He was then granted immunity under Title 18 U.S.C. § 6002, and produced documents related to the subpoena. The contents of the documents provided the prosecutor with the information that led to the defendant's second prosecution.
ISSUES:
(1) Whether the Fifth Amendment privilege protects a witness form being compelled to disclose the existence of incriminating documents that the Government is unable to describe with reasonable particularity?
(2) Does Title 18 U.S.C. § 6002 prevent the government from using information produced by a witness pursuant to a grant of immunity in preparing criminal charges against that witness?
HELD:
(1) Yes. The constitutional privilege against self-incrimination protects the target of a grand jury investigation from being compelled to answer questions designed to elicit information about the existence of sources of potentially incriminating evidence.
(2) Yes. The "derivative use" of the testimonial act of producing the records is covered by the immunity granted under Title 18 U.S.C. § 6002.
DISCUSSION: With regard to issue (1), the Court held that "the act of production" itself may implicitly communicate "statements of fact." By "producing documents in compliance with a subpoena, the witness would admit that the papers existed, were in his possession or control, and were authentic." Here, the answers to the prosecutor's questions and the act of production could certainly communicate information about the existence, custody, and authenticity of the documents. In addition, the Fifth Amendment protection encompasses compelled statements that lead to the discovery of incriminating evidence, even though the statements themselves are not incriminating and are not introduced into evidence. "The privilege afforded not only extends to answers that would in themselves support a conviction under a federal criminal statute, but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime."
With regard to issue (2), given the breadth of the description of the eleven (11) categories of documents called for by the subpoena, the collection and production of the materials demanded was tantamount to answering a series of interrogatories asking a witness to disclose the existence and location of particular documents fitting the broad description. It is undeniable that providing a catalog of existing documents fitting within any of the eleven (11) broadly worded subpoena categories could provide a prosecutor with a "lead to incriminating evidence" or "a link in the chain of evidence needed to prosecute." Additionally, it was unquestionably necessary for respondent to make extensive use of "the contents of his own mind" in identifying the hundreds of documents responsive to the requests in the subpoena. The assembly of those documents was like telling an inquisitor the combination to a wall safe.
(For further information on this case, please contact Rick Collum)
TOPIC: FIRST AMENDMENT FREEDOM OF RELIGION
Santa Fe Independent School District v. Doe
2000 U.S. Lexis 4154
FACTS: Prior to 1995, a student elected as Santa Fe High School's student council chaplain delivered a prayer over the public address system before each home varsity football game. When this was practice was challenged by various students in a lawsuit, the policy was changed by the school district. Under the new policy, two student elections were held, "upon advice and direction of the high school principal." The first was to decide whether "invocations" should be delivered at football games. The second was to select one student from the student body to deliver the invocations throughout the season. The students voted to authorize invocations and elected a spokesperson to deliver them.
ISSUE: Was the school district's policy permitting student-led, student initiated prayer at football games a violation of the Establishment Clause of the First Amendment?
HELD: Yes. The school district's policy was an unconstitutional violation of the Establishment Clause.
DISCUSSION: The First Amendment provides, in pertinent part, that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The Fourteenth Amendment makes this clause applicable to the States and their political subdivisions. In support of its policy, the school district made three arguments. First, the school district contended the invocations at issue are not subject to the prohibitions of the Establishment Clause, in that they are "private student speech, not public speech." The Court rejected this contention, noting that "the delivery of a message such as the invocation here - on school property, at school-sponsored events, over the school's public address system, by a speaker representing the student body, under the supervision of school faculty, and pursuant to a school policy that explicitly and implicitly encourages public prayer - is not properly characterized as "private" speech." Next, the school district argued the policy did not coerce students to participate in religious observances, in that (1) it was the product of student elections and (2) attendance at the football games is voluntary. The Court rejected both arguments. The school district's "decision to allow a majority of the students to decide whether students of minority views are subjected to a school-sponsored prayer violates the Establishment Clause." Additionally, the fact that a lawsuit was brought over the policy proves that it "encourages divisiveness along religious lines in a public school setting, a result at odds with the Establishment Clause." Further, some students, such as cheerleaders, band members, and football players, were required to attend the event. There are also social pressures placed on students to participate in extracurricular activities, such as football games. While some students may choose not to attend these activities, "the choice between whether to attend these games or risk facing a personally offensive religious ritual is in no practical sense an easy one." Finally, even if the decision to attend is purely voluntary, "the delivery of a pre-game prayer has the improper effect of coercing those present to participate in an act of religious worship." The school district's final argument centered on the fact that the issue was not yet ripe for Court intervention, in that no student had actually delivered an invocation under the new policy. However, the Court noted that "the simple enactment of this policy, with the purpose and perception of school endorsement of student prayer, was a constitutional violation" that made the case ripe for resolution.
(For further information on this case, please contact Bryan Lemons)
TOPIC: SEARCH AND SEIZURE
Florida v. J.L.
120 S. Ct. 1375 (2000)
FACTS: On October 13, 1995, the Miami-Dade, Florida Police Department received an anonymous telephone call reporting that a young black male wearing a plaid shirt was in possession of a handgun at a particular bus stop. No further information exists in the record regarding the identity of the caller or how the caller obtained the information. Within six minutes of the anonymous call, two police officers responded to the bus stop and observed a young black male wearing a plaid shirt. Based solely on the information relayed to them by radio dispatch, one of the officers approached the defendant (a fifteen- year old black male) who was wearing the plaid shirt, frisked him, and detected and recovered a handgun. As a result, the youth was charged under Florida law with illegal possession of a concealed firearm without a license and possession of a firearm by a person under the age of sixteen.
At trial, the defense successfully moved to suppress the gun as the result of an unlawful frisk. Upon government appeal, this ruling was reversed and the gun was admitted. The defense appealed and the Supreme Court of Florida affirmed the original suppression and held the gun was discovered as a result of an unlawful frisk and not admissible. The government then appealed the issue to the U.S. Supreme Court.
ISSUE: Can the police conduct a frisk of a suspect based solely upon an anonymous tip to the police that a suspect is armed with a handgun that describes a suspect's race, age, gender, location and partial clothing design?
HELD: No. The traditional concepts set out in Terry v. Ohio, 392 U.S. 1 (1968), that justify a stop, question and frisk apply. Specifically, officers must have a reasonable basis to conclude that a suspect is armed and dangerous and they may not solely rely on an anonymous tip to support this belief. The officers must have personal observations to support their reasonable belief the suspect is armed and dangerous.
DISCUSSION: The Supreme Court held that "an anonymous tip lacking indicia of reliability of the kind contemplated in Adams and White does not justify a stop and a frisk whenever and however it alleges the illegal possession of a firearm." In Adams v. Williams, 407 US 143 (1972), the Court ruled that a tip from a known informant whose reputation can be assessed and who can be held responsible if the allegation is determined to be fabricated can be sufficiently reliable to support a frisk for a weapon. In Alabama v. White, 496 US 325 (1990), the Court held that an anonymous tip, major portions of which were corroborated, can support an investigative stop. Additionally, the Court refused to find a "firearms exception" to the traditional legal requirements needed to support a lawful stop and frisk. However, the court did specifically state that a report of a person carrying a bomb "need not bear the indicia of reliability we demand of a report of a person carrying a firearm …." This appears to leave the door open for justifying a stop and frisk of a person, based solely on an anonymous tip that the person is carrying a weapon that could place the public in grave danger - - such as a weapon of mass destruction. Officers in the field should comply with the clear direction this decision has taken regarding the evolution of the law of stop, question and frisk. Upon receiving an anonymous tip that a person is carrying a firearm, the Officer should closely observe the suspect for additional indicators the person is armed and dangerous that can be articulated in court (such as a "bulge" under a coat, a furtive movement, running from the sight of police, a threatening movement with the hands, verbal threats to "kill", etc.).
(For further information on this case, please contact Steve Argiriou)
ENDNOTES
1. Mincey v. Arizona, 437 U.S. 385, 390 (1978)(emphasis in original) (citation omitted)
2. Id.
3. Id. at 437 U.S. 389 (footnote omitted).
4. Id. at 437 U.S. 389-390 (citation omitted).
5. Id. at 437 U.S. 395 (footnote omitted).
6. Id. at 437 U.S. 394 (emphasis added) (citation omitted).
7. Id. at 437 U.S. 392 (citations omitted) ("The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an emergency or exigency").
8. Id. at 437 U.S. 393 (citation omitted)
9. Segura v. United States, 468 U.S. 796 (1984)(Premises secured for 19 hours from within to preserve evidence while officers obtain search warrant).
10. 469 U.S. 17 (1984)
11. Id. (citations omitted).
12. Id. at 469 U.S. 21 (citations omitted).
13. 120 S.Ct. 7 (1999).
14. Id. at 120 S.Ct. 7.
15. Id.
16. Id.