Case Law Update: 2011-2014 Cumulative Edition

Holding: Where Defendant’s prior guilty plea had been withdrawn, his statements made in a SAR (sentencing assessment report) could not be used by the State at his trial because Rule 24.02(d)(5) provides that “evidence of a guilty plea, later withdrawn, or an offer to plead guilty …, or of statements made in connection with, and relevant to, any of the foregoing pleas or offers is not admissible in any civil or criminal proceeding against the person who made the plea or offer.”
State v. Avent, 2014 WL 1303418 (Mo. App. W.D. April 1, 2014):

Even though Officer testified that Defendant-Driver had glassy eyes, admitted to consuming beers, smelled of alcohol, failed a PBT test, and failed some sobriety tests, where there was also contrary evidence and trial court granted Defendant’s motion to suppress statements and evidence by finding there was no probable cause to arrest Defendant, the appellate court’s deferential standard of review requires that all credibility determinations and inferences be viewed in the light most favorable to the trial court’s ruling, and therefore, granting of motion to suppress is affirmed.

Facts: Defendant-Driver was stopped for speeding. Officer smelled alcohol, and had Defendant perform various field sobriety tests. Defendant passed the walk-and-turn test and one-leg-stand test, but failed the HGN test and PBT. Officer arrested Defendant, and read her Miranda warnings. Her BAC was ultimately tested and was greater than .08. Defendant filed a motion to suppress her statements and test results, on grounds that Officer had no probable cause to arrest her for DWI. The trial court granted the motion. The State appealed.

Holding: On appeal, the State cites evidence in the record that supports a finding of probable cause to arrest. However, this is contrary to the appellate standard of review, which allows the trial court to make credibility determinations and which views evidence and inferences in the light most favorable to the trial court’s ruling. Where the trial court makes no findings of fact, the trial court is presumed to have found all facts in accord with its ruling. The trial court will be deemed to have implicitly found contrary testimony not credible. Here, Defendant contested the State’s claim that she was intoxicated by cross-examining the Officer about favorable facts to her side of the case. The court was not required to find the Officer credible. Properly viewed in accord with the standard of review, although some facts showed intoxication, Officer observed several tests that did not indicate intoxication, Officer did not observe Defendant not have control of her vehicle (although she was speeding), Defendant complied with requests for identification and license, Defendant was not incoherent or confused or uncooperative, and her eyes weren’t impaired. The trial court weighed this evidence and determined there was no probable cause to believe Defendant was intoxicated. Judgment affirmed.
Hemphill v. Pollina, 2013 WL 1197502 (Mo. App. W.D. March 26, 2013):

Holding: (1) Where Defendant entered an Alford plea to assault and received an SIS, the Alford plea was not admissible against Defendant in a later civil suit over the assault as an admission against interest because the Alford plea was not an admission of guilt and was not inconsistent with Defendant’s position in the civil case; (2) Defendant’s Alford plea was not admissible for purposes of impeachment of Defendant since it resulted in an SIS and the disposition of a criminal charge by SIS is not a conviction for purposes of impeachment; (3) Defendant’s post-Miranda failure to speak to police was not admissible as an admission against interest because Defendant had no duty to speak.
State v. Clampitt, No. WD73943 (Mo. App. W.D. 1/24/12):

Where prosecutor used investigative subpoenas to subpoena cell phone records of text messages of Defendant for a month after a vehicle crash in an attempt to find out if Defendant would make an incriminating statement about the crash, the text messages must be suppressed because Defendant had a reasonable expectation of privacy in his text messages and the prosecutor’s use of investigative subpoenas was an unlawful fishing expedition not limited in scope or relevant purpose.

Facts: Defendant was involved in a car accident. The State issued four investigative subpoenas to various cell phone providers for text messages of Defendant for 30 days after that, requesting all text messages. When one subpoena would expire, the State would issue another one. Defendant was ultimately charged with first degree involuntary manslaughter from the accident. He moved to suppress the text messages. The trial court suppressed them. The State appealed.

Holding: The State contends Defendant has no standing because he lacks any reasonable expectation of privacy in the text messages since they are accessible to a third-party (the cell phone company). Prior cases have held, however, that a person maintains a reasonable expectation of privacy in letters mailed in the mail, even though those letters are delivered through a third party. Similarly, prior cases have found a reasonable expectation of privacy in phone calls and emails, even though a phone company or email company could listen in on calls or read email. As text messaging becomes a substitute for more traditional forms of communication, it follows that society expects the content of text messages to receive the same 4^th Amendment protection as letters and phone calls. The State claims that even if there is an expectation of privacy, the use of investigate subpoenas overrides this. However, the 4^th Amendment applies to investigative subpoenas and requires that they be limited in scope, purpose and directive. Here, the subpoenas were not. The subpoenas were issued until such time as Defendant made incriminating remarks, i.e., that he was the driver of the car. If no evidence about this had yet come about, presumably the State would still be issuing subpoenas in the hopes of getting an incriminating admission. The subpoenas were nothing more than an improper fishing expedition. The State claims that the good faith exception to the exclusionary rule should apply here, but that rule applies to police conduct, not prosecutor misconduct, as here. The prosecutor was engaged in a fishing expedition to find evidence of incriminating statements. Moreover, the evidence here was suppressed under Sec. 542.296.1, not the exclusionary rule.
State v. Sparkling, No. WD73737 (Mo. App. W.D. 11/29/11):

Where an interrogation video showed that Defendant did not initial or read a Miranda waiver form but just quickly signed it, the State did not meet its burden to show that Defendant’s waiver of Miranda rights and statements were intelligent or knowing.

Facts: Police Detective met with Defendant, at Defendant’s request, after Defendant had been arrested for various offenses. Detective testified that before he interviewed Defendant, he read him the Miranda warning and had him sign a waiver form. However, there are blank lines before each of the Miranda rights on the form which the person can initial, but none were initialed. Detective testified that he asked Defendant if he understood his rights, but did not remember if Defendant said he understood his rights. The video of the interrogation showed that when Detective asked Defendant if he understood his rights, Defendant made no reply or any gesture indicating that he understood. Detective gave Defendant the Miranda waiver form and told him to “sign right there.” The video shows that Defendant signed the form without reading it. Defendant filed a motion to suppress statements, which the trial court granted. The State appealed.

Holding: The State had the burden to show that Defendant’s waiver of Miranda rights was knowing and intelligent, i.e., must show that Defendant understood the rights he was waiving. The trial court noted that the State was relying on Defendant’s signature on the waiver form as proof that Defendant’s waiver was knowing and intelligent, but such conclusion was inconsistent with the statements purportedly ratified by the signature, “as indicated by my initials,” because there were no initials. Defendant never said he understood his rights. Defendant did not read the form. The State introduced no evidence of Defendant’s experience, education, background or familiarity with the criminal justice system to show he understood his rights. The trial court’s ruling suppressing the statements was not clearly erroneous.
* Salinas v. Texas, 93 Crim. L. Rep. 390, ___ U.S. ___ (U.S. 6/17/13):

Holding: Mere silence during a noncustodial interview is not an invocation of the 5^th Amendment privilege against self-incrimination, and thus, 5^th Amendment does not bar prosecutors from arguing as evidence of guilt the fact that Defendant suddenly stopped answering police questions during a noncustodial interview.
* Howes v. Fields, ___ U.S. ___, 90 Crim. L. Rep. 661 (U.S. 2/21/12):

Holding: Even though Defendant was a prisoner on another offense, where police questioned him at the prison on a different offense and told him he was free to return to his cell, Miranda warnings were not required; the determination of whether a person is “in custody” for Miranda purposes requires review of the totality of the circumstances, not just merely being a prisoner.
* Bobby v. Dixon, ___ U.S. ___, 90 Crim. L. Rep. 198 (U.S. 11/7/11):

Holding: Even though (1) Defendant was arrested after his name was on a check of a missing person and police questioned him without intentionally giving him Miranda warnings and he denied involvement, and (2) later police re-questioned him about the murder of the missing person after giving him Miranda warnings, the second statements were admissible because this was not a two-step interrogation prohibited by Missouri v. Seibert, 542 U.S. 600 (2004).
* Howes v. Fields, ___ U.S. ___, 90 Crim. L. Rep. 661 (U.S. 2/21/12):

Holding: Even though Defendant was a prisoner serving time for another offense, he was not “in custody” for Miranda purposes when questioned about a different offense and police told him that he could leave and go back to his cell whenever he wanted; the determination of “custody” focusses on all factors of the interrogation.
* J.D.B. v. North Carolina, ___ U.S. ___, 89 Crim. L. Rep. 463, 131 S.Ct. 2394 (U.S. 6/16/11):

Holding: The age of a juvenile is a factor to consider in determining whether juvenile was “in custody” for Miranda purposes, where the child’s age was known to the officer at the time of questioning or would have been objectively apparent to a reasonable officer; here, 13 year old had been taken from his classroom and questioned by police and school officials about a break-in without advising him he did not have to answer or was free to leave.
U.S. v. Rogers, 90 Crim. L. Rep. 66 (1^st Cir. 10/4/11):

Holding: Where military commander ordered military Defendant to report home, and civilian police were at the home and questioned him about a crime, the inherently coercive nature of the military order home meant Defendant was “in custody” at home for Miranda purposes.
U.S. v. Bailey, 2014 WL 657932 (2d Cir. 2014):

Holding: Even though Officer told Defendant he was not being arrested but only being detained while a search warrant was executed, where Defendant was handcuffed and made incriminating statements without being given Miranda warnings, the statements must be suppressed under the Fourth Amendment because the initial handcuffing of Defendant violated the reasonable bounds of a Terry stop.
U.S. v. Taylor, 736 F.3d 661 (2d Cir. 2013):

Holding: Even if Defendant’s initial waiver of his Miranda rights was voluntary, where Defendant had attempted suicide by taking a large amount of pills before his arrest, Police interrogation of Defendant while he was impaired on the pills took undue advantage of Defendant and rendered his statements involuntary.
U.S. v. Okatan, 93 Crim. L. Rep. 713 (2d Cir. 8/26/13):

Holding: 5^th Amendment privilege against self-incrimination prohibits State from proving guilt with evidence that Defendant invoked his right to counsel when confronted with non-custodial, pre-Miranda-warnings interrogation; this was the question on which the U.S. Supreme Court granted cert in Salinas v. Texas (U.S. 2013), but it resolved that case without deciding the issue.
U.S. v. Murphy, 2012 WL 6013773 (2d Cir. 2012):

Holding: Even though Miranda warnings were clearly stated to Defendant by an officer near him, where he never acknowledged hearing them, he did not knowingly waive his right to silence.
Wood v. Ercole, 2011 WL 1663441 (2d Cir. 2011):
Holding: Where Petitioner had invoked his right to counsel, state court erred in admitting video of his confession and habeas relief is warranted.
U.S. v. Capers, 88 Crim. L. Rep. 285 (2d Cir. 12/1/10):

Holding: In applying Seibert, 542 U.S. 600 (2004), court should use objective factors test to determine if police deliberately evaded Miranda, and State bears burden to prove by preponderance of evidence that police did not violate Miranda; even though Officer testified he did not administer Miranda warnings when initially questioning suspect because he was in a hurry to track down other evidence and he needed to find another suspect, this did not justify delaying the Miranda warning.
U.S. v. Hashmine, 94 Crim. L. Rep. 179 (4^th Cir. 10/29/13):

Holding: Even though police never told 19-year-old Defendant that he was under arrest, where he was roused out of bed by police, separated from his family, and put in a small storage room and interrogated for three hours, he was “in custody” for Miranda purposes.

Tice v. Johnson, 2011 WL 1491063 (4^th Cir. 2011):

Holding: Where police resumed questioning Defendant only 13 minutes after he had invoked his right to silence, counsel was ineffective in failing to move to suppress his confession.
U.S. Cavazos, 2012 WL 149331 (5^th Cir. 2012):

Holding: Defendant was in custody for Miranda purposes even though he was interviewed at home and informed that the interview was “non-custodial” where he was in the presence of more than a dozen officers, initially handcuffed, separated from his family for at least an hour, and allowed to use the bathroom, get a snack, or make a phone call, but only if an officer accompanied him.
U.S. v. Scott, 2012 WL 3890947 (6^th Cir. 2012):

Holding: Where Defendant wrote “no” on a Miranda waiver form asking if he wished to talk to police, this was an unequivocal invocation of his right to counsel.
Moore v. Berghuis, 2012 WL 5871205 (6^th Cir. 2012):

Holding: Admission of Defendant’s confession taken in violation of right to counsel was not harmless in murder case where other evidence against Defendant was circumstantial, and even though Defendant had made other conflicting statements about shooting someone and had been seen with a gun near the time of the murder.
U.S. v. Hunter, 92 Crim. L. Rep. 732 (7^th Cir. 2/28/13):
Holding: Defendant’s request “Can you call my lawyer?” and giving a lawyer’s name was an unequivocal assertion of 5^th Amendment right to counsel that should have caused police questioning to cease.
Aleman v. Village of Hanover Park, 2011 WL 5865654 (7^th Cir. 2011):

Holding: Confession induced by false statement was not a valid premise for an arrest or valid as evidence.
U.S. v. Swanson, 89 Crim. L. Rep. 13 (7^th Cir. 3/24/11):

Holding: Where Officer in absence of Miranda warnings told Defendant that the warrant under which he was being arrested conditioned any bond on his turning over any firearms and asked him if he had any firearms, and this prompted Defendant to make an incriminating statement that led to seizure of a hidden gun in his car, the Officer’s questioning amounted to unwarned custodial interrogation in violation of 5^th Amendment right against self-incrimination; statement and gun are suppressed.
U.S. v. Perry, 2011 WL 1900388 (8^th Cir. 2011):

Holding: Where proffer agreement was ambiguous in that one provision stated that Defendant’s statements may not be used in the case-in-chief (suggesting they could be used elsewhere), but another provision stated the statements could not be used in any legal proceedings unless Defendant made an inconsistent statement, the agreement had to be construed against the Gov’t and the statements could not be used in determining the Sentencing Guidelines range.
Lujan v. Garcia, 2013 WL 5788761 (9^th Cir. 2013):

Holding: State court holding that Defendant’s inculpatory trial testimony could be considered as evidence of guilt even though his confession had been improperly admitted in the Prosecutor’s case-in-chief violated 5^th Amendment privilege against self-incrimination and warranted habeas relief.
U.S. v. Barnes, 93 Crim. L. Rep. 155, 2013 WL 1668966 (9^th Cir. 4/18/13):

Holding: Officers who presented Defendant with evidence of a new crime by him before giving him Miranda warnings engaged in two-step interrogation procedure prohibited by Missouri v. Seibert, 542 U.S. 600 (2004).
Sessoms v. Runnels, 2012 WL 3517600 (9^th Cir. 2012):

Holding: Where 40 seconds into interrogation by police Defendant twice requested counsel in rapid succession, this was a clear invocation of the right to counsel.
U.S. v. Krupa, 2011 WL 4526022 (9^th Cir. 2011):

Holding: Public safety exception to Miranda rule did not apply to prearrest statements regarding the presence of firearms where defendant was the sole occupant of the apartment and the police were firmly in control of the situation.
Thompson v. Runnels, 89 Crim. L. Rep. 588 (9^th Cir. 6/9/11):

Holding: Deliberate two-part interrogation tactic subverted Miranda’s effectiveness nad violated Missouri v. Seibert, 542 U.S. 600 (2004).
Doody v. Ryan, 2011 WL 1663551 (9^th Cir. 2011):

Holding: Miranda was violated where warning told Defendant that the right to counsel applied only if the defendant is involved in a crime.
U.S. v. Mikolon, 93 Crim. L. Rep. 539 (10^th Cir. 7/9/13):

Holding: Even though Defendant was carrying a firearm at a campground where he was arrested on an outstanding warrant, after Defendant was handcuffed and the firearm taken from him, Officers should have given Miranda warnings before asking Defendant if he had any other weapons or contraband, and failure to do so was not justified under the “public safety” exception to Miranda (but error was harmless).
U.S. v. Toombs, 93 Crim. L. Rep. 189 (10^th Cir. 4/26/13):

Holding: Before court may admit Defendant’s testimony from a prior trial, it must first rule on any of Defendant’s admissibility objections at the second trial.
U.S. v. Santistevan, 2012 WL 6554750 (10^th Cir. Dec. 17, 2012):

Defendant unambiguously invoked his right to counsel so that police questioning had to cease where, when police questioned him, he handed them a letter from his public defender stating that he did not want to be questioned without counsel, even though Defendant then proceeded to answer questions.

Facts: Defendant was being held in jail on various charges and was represented by a Public Defender. Public Defender told FBI Agent that that Defendant did not wish to speak to police, and that Public Defender had given Defendant a letter to this effect. Nevertheless, Agent went to the jail to interview Defendant. Agent asked if Defendant had a letter, and Defendant gave him a letter from Public Defender which stated, in relevant part, that “[Defendant] does not wish to speak with you without counsel.” Agent then said that even though Defendant had been advised by counsel not to talk, that was totally up to Defendant and asked Defendant if he wanted to talk. Defendant said yes, and after being given Miranda warnings, proceeded to make incriminating statements. Defendant then filed a motion to suppress those statements.

Holding: Edwards v. Arizona, 451 U.S. 477, 484-85 (1981), held that when a suspect has expressed his desire to deal with police only through counsel, he is not subject to further interrogation until counsel has been made available. Davis v. United States, 512 U.S. 452, 459 (1994), clarified that the invocation of counsel must be “unambiguous.” Here, Defendant’s action in handing the letter to the Agent was an unambiguous statement that he did not wish to speak without counsel. Even though Moran v. Burbine, 475 U.S. 412 (1986), held that only a defendant and not an attorney can invoke a Defendant’s Fifth Amendment rights, Burbine does not apply here since Defendant, by handing the letter to Agent, ratified the contents of the letter as his own personal communication to Agent. Defendant, in effect, told Agent he did not wish to speak when he gave the letter to Agent. This clearly invoked his right to counsel. All questioning should have ceased after this. Statements suppressed.
U.S. v. Doe, 90 Crim. L. Rep. 712 (11^th Cir. 2/23/12):

Holding: The government cannot compel a suspect to decrypt his computer hard drives without granting him full immunity from prosecution where the act of unlocking the devices would itself be testimonial.
U.S. v. Hutchins, 93 Crim. L. Rep. 504 (C.A.A.F. 6/26/13):

Holding: Where Defendant had requested counsel, police violated his rights under Miranda and Edwards by requesting his consent to search his belongings before Defendant’s request for counsel had been granted.
Dorsey v. U.S., 2013 WL 28470 (D.C. 2013):

Holding: Defendant’s 5^th Amendment right to counsel was violated where, after invoking his right to counsel, police badgered him by emphasizing strength of state’s case, public reaction against Defendant, and the punishment he’d receive at trial.
U.S. v. Savoy, 2012 WL 389154 (D.D.C. 2012):