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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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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