March 2015

In the landmark case Miranda v. Arizona, the Supreme Court created what are now commonly referred to as "Miranda Rights." These rights were created to mitigate the coercive effect of interrogations while a defendant is in police custody. Recognizing that the Fifth and Fourteenth Amendments prohibit forced self-incrimination, the Supreme Court mandated that defendants are made aware of these rights before any custodial interrogation begins, namely their right to remain silent and their right to the presence of an attorney. However, if a defendant is not in custody, police officers do not have to read him or her their Miranda Rights, despite being questioned about an alleged crime.

A person is in custody for Miranda purposes when he or she is placed under formal arrest, or a reasonable person would not feel free to leave during questioning. If a defendant feels free to terminate the interrogation at any time, they are not in custody. The Court uses five factors in their analysis: (1) the length of the questioning, (2) the location of the questioning, (3) the accusatory, or non-accusatory, nature of the questioning, (4) the amount of restraint on the individual's physical movement, and (5) statements made by officers regarding the individual's freedom to move or leave. Using these factors and the totality of the circumstance, the Court will determine if the restraint on one's freedom arises to the degree usually associated with a formal arrest.

In United States v. Wright, a search warrant was executed at the defendant's home in connection to an on-going child pornography investigation. A police officer escorted the defendant to his police car where the defendant could wait during the search. The officer told the defendant that he was not under arrest and could leave whenever he wanted. He was not handcuffed or restrained in any way. Before being questioned, the defendant was read his Miranda Rights and again told that he could leave at any time because he was not under arrest. The defendant made several incriminating statements that he later moved to suppress at trial, arguing that he had unambiguously requested an attorney to be present during questioning.

Nevertheless, the 5th Circuit Court of Appeals held that the defendant was never in custody for Miranda purposes, so he was not entitled to the right of counsel, and thus the Court denied his motion. The defendant was made aware on at least two different occasions that he was not under arrest and that he could leave at anytime. Moreover, the defendant's movement was not restrained during questioning that prevented him from leaving, and his overall tone during the interview was cooperative since he was trying to tell his story to the police officer. Because of these factors, the Court held that the defendant's incriminating statements were admissible at trial.

As we continue to advise: Do not make any statements to the police when they are investigating you for a crime (regardless of whether you are in "custody'). Ask for an attorney and wait until you get one before you say anything.

Although the Fourth Amendment acts as a safeguard against unlawful search and seizures, the State can still use evidence it finds against a defendant in a consensual search of their property if the search is sufficiently detached from an illegal search that purges any unconstitutional taint. Accordingly, such a search is valid if the search was voluntary and an independent act of freewill.  In order to determine whether a search was an independent act of freewill, the Court analyzes several factors, none of which are controlling by themselves:

1. the temporal proximity of the illegal conduct and the consent,
2. the presence of intervening circumstances, and
3. the purpose and flagrancy of the initial misconduct.

In US v. Montgomery, the Defendant was stopped by a police officer and frisked during a traffic stop in front of the Defendant's house. As the officer frisked the Defendant, the Defendant pushed the officer's hands away from his pockets after the officer felt a bulge. The Defendant revealed that the bulge was cocaine, prompting his arrest and Mirandizing. The Defendant, eventually, consented to a search of his house. During the search, the Defendant was allowed into the house to obtain medicine and made several requests to officers on scene for his cell phone to erase some "naked pictures" that he did not want his father to find. The Defendant consented to one of the officers using his phone to delete the pictures, but the officer found what appeared to be child pornography. The Defendant was later indicted for possession of child pornography.

At trial, the Defendant claimed that the frisk and seizure of cocaine that led to his arrest was unlawful, which tainted his consent for the officer the see his cell phone. Nevertheless, the Court held that even if the frisk and seizure were illegal, the Defendant's several voluntary and independent acts of freewill relieved the search of the Defendant's phone of any unconstitutional taint, specifically, the Defendant asking several times to see his cell phone so that he could delete the naked images, and the Defendant consenting to a search of his phone after being Mirandized. Nothing was presented at trial that showed the police officers even wanted to search his cell phone. In the words of the Court, "[The Defendant] broached the phone search himself." Moreover, the Court also cited several intervening events and factors establishing that the Defendant's "consent was sufficiently detached from the arrest to purge any taint" such as the officers reading the Defendant his Miranda rights, the Defendant's criminal record, and the Defendant going into his house to retrieve his medicine.

Yet another reason why we advise NEVER GIVE CONSENT TO SEARCH, period.