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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. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  2. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  3. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  4. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  5. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

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