ILNews

Inside the Criminal Case: Technology aids review of questioning technique

James J. Bell , K. Michael Gaerte
January 15, 2014
Keywords
Back to TopCommentsE-mailPrintBookmark and Share

Inside CC Bell GaerteDanielle Kelly v. State is the first time that the Indiana Supreme Court has addressed law enforcement’s use of the “question first, Mirandize second” questioning technique. 997 N.E.2d 1045 (Ind. 2013). Kelly also provides additional focus on the role technology plays in the changing scope of suspect/law enforcement interaction.

Danielle Kelly v. State

In Kelly, police were called to the home of an ostensible Good Samaritan. Id. at 1-2. In an effort to clean up her neighborhood, the caller informed police that she knew of a man who was dealing cocaine at local bars. Id. Not content with leaving law enforcement up to law enforcement officers, the caller also told police that she had arranged for the individual to deliver cocaine to her house but that she didn’t have any money to make the purchase and wanted to make sure the police were there when he arrived so that they could intervene. Id. After officers arrived at the caller’s home, so did the alleged cocaine dealer. Id. at 2-3. Kelly, the dealer’s cousin, was a passenger and owner of the car he was driving. Id. at 3. Kelly was detained. Id. Before being Mirandized, she admitted she was aware of the presence of cocaine in the vehicle. Id. at 3-4. Minutes later, she was read her Miranda rights, and questioning resumed. Id. at 4-5. When she then denied knowledge of the cocaine, the officers reminded her that she’d already admitted to the same prior to being Mirandized, leading her to make the admission again. Id. at 5-6. After her arrest, officers searched the car and found cocaine. Id. at 3.

Timing of Miranda rights and surrounding circumstances

Under the right circumstances, the “question first, Mirandize second” technique is permissible. See Oregon v. Elstad, 470 U.S 298 (1985). However, the presence of additional factors can alter the constitutionality of the technique.

For example, if the officer is aggressive, the original conversation is detailed, the content of both conversations is the same and the two episodes are closely related in terms of time and proximity, this technique can run afoul of the Fifth Amendment. See Missouri v. Siebert, 542 U.S. 600 (2004). The distinction is fact sensitive, but in this case, the court found that the officer’s reference to Kelly’s pre-warning incriminating statement rendered any subsequent Miranda warning ineffective. Kelly, 997 N.E.2d at 22-23. Even if the mistake by the police was in good faith, the court said, Kelly may not have reasonably believed that she had the right to stop the conversation. Id. at 21. Although different panels of our appellate courts have applied the Siebert precedent in the past, Kelly represents the first time that Indiana’s Supreme Court has done so. Id. at 22.

In addition to the Siebert issue, the Supreme Court also found that Kelly’s initial detention was illegal due to the fact that there was not probable cause to justify her arrest. Id. at 14. Recounting the unique genesis of the investigation and the fact that law enforcement had not been able to verify any of the incriminating information provided with regard to Kelly at all, the court found that the officer did not have a lawful reason to arrest her, and therefore the search of her vehicle was unconstitutional. Id. at 12-14. The court took great pains to draw out the distinction between a Terry stop requiring mere reasonable suspicion and an arrest requiring probable cause. Id. at 9-11. While recognizing that the line between these two types of encounters is fuzzy, the court found that the nature of Kelly’s detention rose to the level of an arrest and that law enforcement could not legally justify the same. Id. at 14. To be clear, this is an issue that comes up in trial courts on a daily basis. What is unique in Kelly’s case is that the court conducted a thorough review of this area of the law and reversed the prior denial of her motion to suppress in addition to reversing on the Siebert issue.

The role of technology

A good part of the interaction between Kelly and the arresting officer was recorded by a camera that the officer was wearing next to his shoulder microphone. Id. at 3. The recording contained both audio and video. Id. at 3-4. In finding that the nature of the interrogation was closer to an unconstitutional one, like Siebert, and less like a permissible one, like Elstad, the court parsed individual phrases and examined the timing and tones used by the parties. Id. at 20-21. Likewise, in finding that Kelly’s detention was an unconstitutional arrest, the court relied upon specific details regarding the initial encounter as well as the tone and scope of the interrogation. Id. at 14-15.

All of these factors were readily available for scrutiny by the court because of the officer’s body camera and the fact that the video was made part of the record for appeal. As all criminal practitioners know, appellate courts defer to the trial court’s ruling in areas where evidence conflicts. Id. at 7-8. This is a difficult hurdle for criminal appellants to overcome in fact-sensitive cases. In this case, a contemporaneous recording kept everyone honest. With the relatively recent enactment of Indiana Rule of Evidence 617 requiring the recording of all felony custodial interrogations if the subject is in a place of detention, the factual record will be clearly available both at the trial and appellate levels. Under any scenario, when an appellate court has the actual encounter itself preserved, it makes an accurate application of legal precedent much easier upon review. In an era where cameras are becoming more and more ubiquitous, it seems that the potential for accurate legal review may increase, as well.•

__________

James J. Bell and K. Michael Gaerte are attorneys with Bingham Greenebaum Doll LLP. They assist lawyers and judges with professional liability and legal ethics issues. They also practice in criminal defense and are regular speakers on criminal defense and ethics topics. They can be reached at jbell@bgdlegal.com or mgaerte@bgdlegal.com. The opinions expressed are those of the authors.
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Im very happy for you, getting ready to go down that dirt road myself, and im praying for the same outcome, because it IS sometimes in the childs best interest to have visitation with grandparents. Thanks for sharing, needed to hear some positive posts for once.

  2. Been there 4 months with 1 paycheck what can i do

  3. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  4. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  5. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

ADVERTISEMENT