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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. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

  2. A high ranking bureaucrat with Ind sup court is heading up an organization celebrating the formal N word!!! She must resign and denounce! http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

  3. ND2019, don't try to confuse the Left with facts. Their ideologies trump facts, trump due process, trump court rules, even trump federal statutes. I hold the proof if interested. Facts matter only to those who are not on an agenda-first mission.

  4. OK so I'll make this as short as I can. I got a call that my daughter was smoking in the bathroom only her and one other girl was questioned mind you four others left before them anyways they proceeded to interrogate my daughter about smoking and all this time I nor my parents got a phone call,they proceeded to go through her belongings and also pretty much striped searched my daughter including from what my mother said they looked at her Brest without my consent. I am furious also a couple months ago my son hurt his foot and I was never called and it got worse during the day but the way some of the teachers have been treating my kids they are not comfortable going to them because they feel like they are mean or don't care. This is unacceptable in my mind i should be able to send my kids to school without worry but now I worry how the adults there are treating them. I have a lot more but I wanted to know do I have any attempt at a lawsuit because like I said there is more that's just some of what my kids are going through. Please respond. Sincerely concerned single parent

  5. California Sex Offender Management Board (CASOMB) End of Year Report 2014. (page 13) Under the current system many local registering agencies are challenged just keeping up with registration paperwork. It takes an hour or more to process each registrant, the majority of whom are low risk offenders. As a result law enforcement cannot monitor higher risk offenders more intensively in the community due to the sheer numbers on the registry. Some of the consequences of lengthy and unnecessary registration requirements actually destabilize the life’s of registrants and those -such as families- whose lives are often substantially impacted. Such consequences are thought to raise levels of known risk factors while providing no discernible benefit in terms of community safety. The full report is available online at. http://www.casomb.org/index.cfm?pid=231 National Institute of Justice (NIJ) US Department of Justice Office of Justice Programs United States of America. The overall conclusion is that Megan’s law has had no demonstrated effect on sexual offenses in New Jersey, calling into question the justification for start-up and operational costs. Megan’s Law has had no effect on time to first rearrest for known sex offenders and has not reduced sexual reoffending. Neither has it had an impact on the type of sexual reoffense or first-time sexual offense. The study also found that the law had not reduced the number of victims of sexual offenses. The full report is available online at. https://www.ncjrs.gov/app/publications/abstract.aspx? ID=247350 The University of Chicago Press for The Booth School of Business of the University of Chicago and The University of Chicago Law School Article DOI: 10.1086/658483 Conclusion. The data in these three data sets do not strongly support the effectiveness of sex offender registries. The national panel data do not show a significant decrease in the rate of rape or the arrest rate for sexual abuse after implementation of a registry via the Internet. The BJS data that tracked individual sex offenders after their release in 1994 did not show that registration had a significantly negative effect on recidivism. And the D.C. crime data do not show that knowing the location of sex offenders by census block can help protect the locations of sexual abuse. This pattern of noneffectiveness across the data sets does not support the conclusion that sex offender registries are successful in meeting their objectives of increasing public safety and lowering recidivism rates. The full report is available online at. http://www.jstor.org/stable/full/10.1086/658483 These are not isolated conclusions but are the same outcomes in the majority of conclusions and reports on this subject from multiple government agencies and throughout the academic community. People, including the media and other organizations should not rely on and reiterate the statements and opinions of the legislators or other people as to the need for these laws because of the high recidivism rates and the high risk offenders pose to the public which simply is not true and is pure hyperbole and fiction. They should rely on facts and data collected and submitted in reports from the leading authorities and credible experts in the fields such as the following. California Sex Offender Management Board (CASOMB) Sex offender recidivism rate for a new sex offense is 0.8% (page 30) The full report is available online at http://www.cdcr.ca.gov/Adult_Research_Branch/Research_Documents/2014_Outcome_Evaluation_Report_7-6-2015.pdf California Sex Offender Management Board (CASOMB) (page 38) Sex offender recidivism rate for a new sex offense is 1.8% The full report is available online at. http://www.google.com/url?sa= t&source=web&cd=1&ved= 0CCEQFjAA&url=http%3A%2F% 2Fwww.cdcr.ca.gov%2FAdult_ Research_Branch%2FResearch_ documents%2FOutcome_ evaluation_Report_2013.pdf&ei= C9dSVePNF8HfoATX-IBo&usg=AFQjCNE9I6ueHz-o2mZUnuxLPTyiRdjDsQ Bureau of Justice Statistics 5 PERCENT OF SEX OFFENDERS REARRESTED FOR ANOTHER SEX CRIME WITHIN 3 YEARS OF PRISON RELEASE WASHINGTON, D.C. Within 3 years following their 1994 state prison release, 5.3 percent of sex offenders (men who had committed rape or sexual assault) were rearrested for another sex crime, the Justice Department’s Bureau of Justice Statistics (BJS) announced today. The full report is available online at. http://www.bjs.gov/content/pub/press/rsorp94pr.cfm Document title; A Model of Static and Dynamic Sex Offender Risk Assessment Author: Robert J. McGrath, Michael P. Lasher, Georgia F. Cumming Document No.: 236217 Date Received: October 2011 Award Number: 2008-DD-BX-0013 Findings: Study of 759 adult male offenders under community supervision Re-arrest rate: 4.6% after 3-year follow-up The sexual re-offense rates for the 746 released in 2005 are much lower than what many in the public have been led to expect or believe. These low re-offense rates appear to contradict a conventional wisdom that sex offenders have very high sexual re-offense rates. The full report is available online at. https://www.ncjrs.gov/pdffiles1/nij/grants/236217.pdf Document Title: SEX OFFENDER SENTENCING IN WASHINGTON STATE: RECIDIVISM RATES BY: Washington State Institute For Public Policy. A study of 4,091 sex offenders either released from prison or community supervision form 1994 to 1998 and examined for 5 years Findings: Sex Crime Recidivism Rate: 2.7% Link to Report: http://www.oncefallen.com/files/Washington_SO_Recid_2005.pdf Document Title: Indiana’s Recidivism Rates Decline for Third Consecutive Year BY: Indiana Department of Correction 2009. The recidivism rate for sex offenders returning on a new sex offense was 1.05%, one of the lowest in the nation. In a time when sex offenders continue to face additional post-release requirements that often result in their return to prison for violating technical rules such as registration and residency restrictions, the instances of sex offenders returning to prison due to the commitment of a new sex crime is extremely low. Findings: sex offenders returning on a new sex offense was 1.05% Link to Report: http://www.in.gov/idoc/files/RecidivismRelease.pdf Once again, These are not isolated conclusions but are the same outcomes in the majority of reports on this subject from multiple government agencies and throughout the academic community. No one can doubt that child sexual abuse is traumatic and devastating. The question is not whether the state has an interest in preventing such harm, but whether current laws are effective in doing so. Megan’s law is a failure and is destroying families and their children’s lives and is costing tax payers millions upon millions of dollars. The following is just one example of the estimated cost just to implement SORNA which many states refused to do. From Justice Policy Institute. Estimated cost to implement SORNA Here are some of the estimates made in 2009 expressed in 2014 current dollars: California, $66M; Florida, $34M; Illinois, $24M; New York, $35M; Pennsylvania, $22M; Texas, $44M. In 2014 dollars, Virginia’s estimate for implementation was $14M, and the annual operating cost after that would be $10M. For the US, the total is $547M. That’s over half a billion dollars – every year – for something that doesn’t work. http://www.justicepolicy.org/images/upload/08-08_FAC_SORNACosts_JJ.pdf. Attempting to use under-reporting to justify the existence of the registry is another myth, or a lie. This is another form of misinformation perpetrated by those who either have a fiduciary interest in continuing the unconstitutional treatment of a disfavored group or are seeking to justify their need for punishment for people who have already paid for their crime by loss of their freedom through incarceration and are now attempting to reenter society as honest citizens. When this information is placed into the public’s attention by naive media then you have to wonder if the media also falls into one of these two groups that are not truly interested in reporting the truth. Both of these groups of people that have that type of mentality can be classified as vigilantes, bullies, or sociopaths, and are responsible for the destruction of our constitutional values and the erosion of personal freedoms in this country. I think the media or other organizations need to do a in depth investigation into the false assumptions and false data that has been used to further these laws and to research all the collateral damages being caused by these laws and the unconstitutional injustices that are occurring across the country. They should include these injustices in their report so the public can be better informed on what is truly happening in this country on this subject. Thank you for your time.

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