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Inside the Criminal Case: Technology aids review of questioning technique

James J. Bell , K. Michael Gaerte
January 15, 2014
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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.•

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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.
 

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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