This Thanksgiving, when we reflect on all we are thankful for, from the Fourth Amendment to the cornbread stuffing and mashed potatoes, let us not forget friends, family, and, especially, Miranda. Who is Miranda, you ask sheepishly? Is she that distant cousin we loose track of until she appears on our doorstep toting a marshmallow casserole? The Miranda decision has seeped into our popular consciousness like gravy into our mashed potatoes , but what do we really know about it? This article provides a factual scenario that is commonly seen, sets the “case” against the backdrop of the historic Miranda case, seeks to explain why Miranda is so important, and gives insight into how Miranda issues are argued by your defense. At the heart of Miranda is the requirement that a client truly understand the rights that he is waiving and freely waive those rights. Without those requirements of knowledge and freedom, the Miranda advisement, for all its potential power to protect our 5th and 6th Amendment rights, is as empty as the center of that pumpkin pie after half-time. Like with anything, with Miranda, it is necessary to get to the heart of it to get to the good stuff. So let’s dig in… and Happy Thanksgiving from the Law Office of Jennifer Zide
STATEMENT OF ANTICIPATED FACTS
On October 13, 2011, detectives arrived at the residence of my client Mr. “Smith”, a sixty-six year old gentleman with a heart condition and no criminal history, to execute a search warrant for possible marijuana sales and cultivation. Seven detectives arrived at the residence, knocked loudly and demanded entry in English, and then, when there was no response, opened the unlocked door and entered the residence. Immediately upon entering, detectives ordered Mr. “Smith” to the ground and handcuffed him. While the detectives searched the residence, per the report with firearms drawn and pointed at potential threats, Mr. “Smith” was detained face down and handcuffed on the ground for a period of twenty to twenty-five minutes.
After detectives completed the search, they spoke to Mr. “Smith” outside of the residence. Deputy A who authored the report indicates that he read Mr. “Smith” his Miranda rights from his department issued card. It appears that the rights were read in English and further, that all attempts to communicate with Mr. “Smith” took place in English. According to Deputy A, this interview was recorded. After being read his rights, Deputy A asserts that Mr. “Smith” told him he understood his Miranda rights. Deputy A further indicates that, when he asked Mr. “Smith” if he wanted to speak to Deputy A about his arrest, Mr. “Smith” said “yes sir”.
After this “waiver” of his Miranda rights, Mr. “Smith” made a series of statements to Deputy A. In the midst of Deputy A interrogating Mr. “Smith”, Detective B, per the report, “walked up to “Smith”” and asked him how much he sold (type of drug) for. Detective B then proceeded to ask Mr. “Smith” several times if he sold (type of drug). In response to this repeated questioning, Mr. “Smith” then made a number of statements to both Deputy A and Detective B.
After this first “waiver” that Deputy A asserts took place outside the residence, Mr. “Smith” was again subject to interrogation inside an interview room at Headquarters Station. Again, per Deputy A, he read “Smith” his Miranda rights. On this occasion, Deputy A specifies in the report that he did so in English using his department issued Miranda card. According to Deputy A, he then asked Mr. “Smith” if he wanted to speak to him about the arrest and Mr. “Smith” said “yes sir”. Following this exchange, Mr. “Smith” then made further statements to Deputy A.
ISSUES TO BE PRESENTED
Was Mr. “Smith”’s response to the Miranda warnings read to him in English by Deputy A the kind of knowing, intelligent and voluntary waiver of those rights that is required in order for a waiver of a defendant’s Fifth Amendment rights to be considered valid?
POINTS, AUTHORITIES AND ARGUMENT
The Fifth Amendment to the United States Constitution, which the United States Supreme Court has incorporated into the Due Process Clause of the Fourteenth Amendment, provides that “[n]o person… shall be compelled in any criminal case to be a witness against himself.” U.S. Const. Amend.V; see Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964) (holding Fifth Amendment privilege against self-incrimination applicable to the states). In Miranda, the United States Supreme Court held this constitutional privilege against self-incrimination applies to “custodial interrogation” by police. United States v. Miranda, 384 U.S. 436, 444-45 (1966). Courts that have subsequently visited the Miranda requirements have emphasized that the Miranda safeguards “become applicable as soon as a suspect’s freedom of action is curtailed to a ‘degree associated with formal arrest.’ ” Berkemer v. McCarty, 468 U.S. 420, 440 (quoting California v. Beheler, 463 U.S. 1121, 1125 (1983)). In such cases, protecting the 5th Amendment privilege against self-incrimination in the inherently coercive environment of law enforcement custody requires that real and meaningful Miranda warnings be given to protect this privilege. Miranda, 384 U.S. 436, 478-79. As Justice Kennedy noted last term, “[o]ur cases and our legal tradition establish that the Self-Incrimination Clause is a substantive constraint on the conduct of the government, not merely an evidentiary rule governing the work of the courts.” Chavez v. Martinez, 123 S.Ct. 1994, 2014 (2003) (Kennedy, J., concurring in part and dissenting in part). “
The rule of Miranda reflects our larger values as a society that respects the individual. As the Grunewald court held, our 5th Amendment right is a special “hallmark of our democracy.” United States v. Grunewald, 233 F.2d 556, 579, 581-582 (Frank, J., dissenting), rev’d, 353 U.S. 391 (1957). At the heart of that right lies the respect that a government – state or federal – must accord to the dignity and integrity of its citizens. United States v. Miranda, 384 U.S. 436, 459. The words of the Miranda court ring equally true today: “In order to combat these pressures and to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored.” United States v. Miranda, 384 U.S. 436, 467. As the court in Miranda made clear, “unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.” United States v. Miranda, 384 U.S. 436, 458. Courts have also recognized that the wrongs that ultimately strike at the heart of our constitutional protections often start with the smallest of variations from what we know to be right. As the Boyd court pointed out, ”illegitimate and unconstitutional practices get their first footing . . . by silent approaches and slight deviations from legal modes of procedure.” Boyd v. United States, 116 U.S. 616, 635 (1886).
Miranda holds that “[t]he defendant may waive effectuation” of the rights conveyed in the warnings “provided the waiver is made voluntarily, knowingly and intelligently.” 384 U.S., at 444 , 475. The inquiry has two distinct dimensions. Edwards v. Arizona, supra, at 482; Brewer v. Williams, 430 U.S. 387, 404 (1977). First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the “totality of the circumstances surrounding the interrogation” reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. Fare v. Michael C., 442 U.S. 707, 725(1979). See also North Carolina v. Butler, 441 U.S. 369, 374 -375 (1979).
As the court in Garibay found in reviewing the District Court’s finding, it is improper to shift the burden of proof as to the waiver onto the defense. There,, the Garibay court found that the lower court’s finding that Garibay failed to show “that he is unable as a matter of law to knowingly and intelligently waive his rights” reflected an improper shifting of the burden of proof onto the defendant. Id. at 537.
The question remains: were Mr. “Smith”’s Fifth Amendment rights fully honored and protected by the Miranda warnings given in this case?
Both The Setting and the Course of Conduct by Law Enforcement Reveal that Mr. “Smith” Was in Custody At the Time He Was Interrogated
At the time that Mr. “Smith” was subject to questioning, first by Deputy A, then by Detective B, and again by Deputy A, he was clearly in custody for purposes of Miranda. The first time Mr. “Smith” was subject to questioning it was outside his home. Mr. “Smith” had just been present when six detectives entered his home under a search warrant, ordered him to the ground and detained him, secured and searched the residence at gunpoint, and then physically moved him outside for questioning. At the time that Mr. “Smith” was physically removed from the residence by Deputy A and subject to questioning outside, there is no way in which a reasonable person in Mr. “Smith”’s position would have felt that he was free to leave. It seems that Deputy A himself recognizes the inherent pressure of this situation in that he notes that he reads Mr. “Smith” his Miranda rights from a department issued card and records the interview.
The fact that this questioning happened to take place in or near his residence, rather than in the police station, in no way makes it a more comfortable or less coercive situation for Mr. “Smith”. The court in Orozco v. Texas confronted a very similar sort of situation, in which the police intruded into the defendant’s residence, physically moved him from the bedroom to the living room and then questioned him while he was handcuffed. There, the Orozco court emphasized that once the “usual comforts of home were taken away”, the defendant was rendered just as potentially vulnerable as an individual subject to interrogation in the more structured setting of an interrogation room. As the Orozco court pointed out, the manner of questioning can sometimes belie its location. Orozco v. Texas, 394 U.S. 324 (1969). Especially where there is an intrusion into an area that we value as the most private and secure, the home, followed by questioning that is designed to elicit potentially incriminating statements from the defendant, the mere fact of that intrusion by law enforcement authorities, rather than making the defendant feel more comforted or more secure, could only make him feel less so. Therefore, the potential compulsion element of custodial interrogation is fully in force, even though the interrogation, at this time, is not taking place within the confines of an interrogation room.
This sense of compulsion continues through the questioning by Detective B, who, seeing Mr. “Smith” being interrogated by Deputy A, increases the pressure on Mr. “Smith” by himself starting to ask questions geared to extracting a statement as to sales. Detective B first asks Mr. “Smith” “how much” he sold (type of drug) for. What the deputy and detective interpret as an individual who is “hesitant” to answer could just as easily indicate a person who does not fully understand the question. Mr. “Smith”’s response about “buying” rather than “selling” (type of drug) only further underscores his confusion and lack of comprehension. Detective B then proceeds to repeatedly ask Mr. “Smith” if he sold (type of drug) and how much (type of drug) one could buy for a specific amount of money. Deputy A indicates in his police report that Mr. “Smith” “later” made a statement on this issue of selling, but he does not indicate how much “later” that statement occurred, in what context, or what may have precipitated it.
After questioning by Deputy A and Detective B outside his residence, Mr. “Smith” is again subject to questioning by Deputy A, this time at the station house. At this point, Deputy A again indicates that he read Mr. “Smith” his Miranda Rights from his department-issued Miranda card. In regard to this interrogation session, Deputy A further specifies that he read these rights to Mr. “Smith” in English from his department-issued Miranda card. In light of the fact that the prior advisement was also given by Deputy A by reading from his department-issued Miranda card, it seems a fair inference that that advisement was given in English as well. In response to this second interrogation at Headquarters, Mr. “Smith” makes a further series of statements. At this point, when Mr. “Smith” is in an interrogation room at the station with Deputy A, he is similarly being subjected to custodial interrogation.
Examining the Totality of the Circumstances here Reveals That Mr. “Smith”’s Waiver Was Not Knowing, Intelligent or Freely Given
As our Ninth Circuit found in United States v. Garibay, the burden on the government is “great” and the court will “indulge every reasonable presumption against a waiver of fundamental constitutional rights.” United States v. Garibay, 143 F.3d 534, 537, citing United States v. Heldt, 745 F.2d 1275, 1277 (9th Cir. 1984). There is a presumption against a waiver. United States v. Bernard S., 795 F.2d 749, 752 (9th Cir. 1986), citing N. Carolina v. Butler, 441 U.S. 369 (1966). As explained by the court in Colorado v. Connelly, the burden rests with the prosecution to prove by a preponderance of the evidence that the defendant knowingly and intelligently waived his Miranda rights. Colorado v. Connelly, 479 U.S. 157, 168 (1986). A single response, in isolation, is not controlling. Oregon v. Bradshaw, 462 U.S. at pp. 1044-1046.To satisfy this burden, the prosecution must establish that, under the “totality of the circumstances”, the defendant was aware of the nature of the right abandoned and the consequences of the decision to abandon it. United States v. Garibay, 143 F.3d 534, 536, citing Moran v. Burbine, 475 U.S. 412, 421 (1986).
Ninth Circuit courts applying this “totality of the circumstances” test have looked at six major areas of inquiry in trying to determine whether the circumstances surrounding the interrogation indicate a knowing and intelligent waiver: (1) did the defendant sign a written waiver; (2) was the defendant advised in his native tongue; (3) did the defendant appear to understand his rights; (4) did the defendant have the assistance of a translator; (5) were the defendant’s rights individually and repeatedly explained to him; (6) did the defendant have prior experience in the criminal justice system that would fairly indicate a prior experience with, knowledge and understanding of these rights. United States v. Garibay, 143 F.3d 534, 538. Applying these factors individually to the case of Mr. “Smith” reveals that none of these important criteria are met to support a finding that, when Mr. “Smith” waived his Miranda rights, he did so knowingly, intelligently and freely. As the court announced in its historic Miranda decision, “a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” Miranda, 384 U.S. at p. 475.
A. Did the Defendant Sign a Written Waiver?
As the courts held in Bernard S. and Bautista-Avila, one important factor in evaluating whether a waiver is knowing, intelligent, and freely made, is whether the defendant has made a written waiver. United States v. Bernard S., 795 F.2d 749, 752-753 (9th Cir. 1986); United States v. Bautista-Avila, 6 F.3d 1360, 1365 (9th Cir. 1993). A review of the situation in Mr. “Smith”’s case reveals that no such waiver has been made by Mr. “Smith”.
B. Were Advisements Given In the Defendant’s Native Tongue?
Another important factor courts turn to in evaluating a waiver is whether it is given to the defendant in his native language. United States v. Gonzales, 749 F.2d 1329, 1336 (9th Cir. 1984) On the issue of the language in which rights are communicated to the defendant, the 9th Circuit has previously noted that “language difficulties may impair the ability of a person in custody to waive his Miranda rights in a free and aware manner.” United States v. Heredia-Fernandez, 756 F.2d 1412, 1415 (9th Cir. 1985). In Heredia, the court found the waiver valid looking at the totality of the circumstances. There the defendant had received advisements in Spanish, had signed a written waiver in Spanish, had repeatedly confirmed that he understood. He also had been arrested fifteen times in the past eight to ten years, which seemed to fairly suggest that he was familiar with Miranda.
In a similar case, where the defendant was informed of his rights in his native language, his waiver was found to be valid. In United States v. Salcido, 44 Cal.4th 93 (2008), the officer communicated with the defendant in Spanish. Prior to the advisement of rights, the detective asked whether the suspect wanted to hear his rights in English or in Spanish. The detective also questioned the defendant to determine whether he was more comfortable conversing in English or in Spanish. The court in Salcido found that, in contrast to Garibay, where the defendant did not understand English, was not given the opportunity to hear rights read to him in Spanish, and did not have ability in the English language, the defendant in Salcido was adequately protected by having all communication conducted in his native tongue of Spanish. 44 Cal.4th 93, 128, citing U.S. v. Garibay (9th Cir. 1998) 143 F.3d 534, 537-538.
In stark contrast in Mr. “Smith”’s case, Mr. “Smith” was not given the advisements in his native language of (non-English language). Not only was he not informed of his Miranda rights in (non-English language), but the deputy never made any effort to determine what his native language in fact was or to ask him in what language he was most comfortable conversing. The deputy simply assumed that Mr. “Smith” spoke English and did so to the extent that would be necessary for him to truly understand and intelligently waive his rights. Also unlike the defendant in Heredia, Mr. “Smith” never executed a written waiver in ((non-English language) and had absolutely no past experience with the criminal justice system from which some familiarity with his Miranda rights might fairly be inferred.
The facts of Mr. “Smith”’s case are reminiscent of the facts in Garibay, in which the court found that the defendant did not knowingly, intelligently and freely waive his Fifth Amendment rights. In Garibay, the officer questioned the defendant in English and simply assumed that the defendant was proficient enough in English to fully understand and freely waive his rights. United States v. Garibay, 143 F.3d 534, 537. In fact, however, the defendant’s primary language was Spanish and, although he attended high school in the U.S., he had received grades of D+ in 11th and 12th grade English classes. He further did not graduate. Id. at 537. Witnesses in Garibay further testified that the defendant regularly communicated in Spanish. Id. at 538. There, the mere fact that the defendant tried to communicate in English when he felt pressured by English-speaking authority figures did not indicate that he understood it. Id. at 538.
Similar to the defendant in Garibay, Mr. “Smith” leads a daily life in which he communicates in (non-English language), not in English. In Mr. “Smith”’s daily life experience, he interacts with friends and family, all of whom speak (non-English language). Mr. “Smith” came to the United States at the age of forty and never attended school in the United States. He never attended any English language courses. In addition to the interactions in his daily life, Mr. “Smith”’s work in the United States did not generally bring him into contact with English-language speakers. In both his job as a ______ and his job in ___________, Mr. “Smith” was surrounded by (non-English speaking) employees, communicated with his co-workers in (non-English language), and was also communicated with by his supervisor in his native language.
After suffering a heart attack approximately one year ago, Mr. “Smith”, now sixty-six years old, has suffered ongoing health problems which forced him to, in large part, retire. As such, his daily activities and interactions with the public have become even more limited and circumscribed. Outside of communications with friends and family, all of which are in (non-English language), Mr. “Smith”’s other chances to interact with the public at large include communications with customers and shopping or marketing trips. In his communications with customers, Mr. “Smith” communicates only in (non-English language). When he ventures outside of his usual surroundings and deals with the larger population, as in shopping and marketing trips, Mr. “Smith” does not even try to communicate with anyone in English. He instead relies on his (family member) to act as an interpreter when he is going to attempt to communicate with a person who speaks English.
C. Did the Defendant Appear to Understand Those Advisements?
Another important factor is whether the defendant appears to understand the rights of which he is being advised. United States v. Gonzales, 749 F.2d 1329, 1336 (9th Cir. 1984). In Mr. “Smith”’s case, his mere response “yes, sir” does not evidence either an understanding of his rights or a waiver of those rights. As the court pointed out in Oregon v. Bradshaw, “a single response, in isolation, is not controlling.” Oregon v. Bradshaw, 462 U.S. at pp. 1044-1046. In Garibay, for example, witness testimony established that the defendant regularly communicated in Spanish in his daily life. It was also revealed through the testimony of the defendant’s former coach that the defendant, even though he did not speak English, would still feel pressured by authority figures and attempt to respond in English when others in a perceived position of power or authority addressed him in English. Similarly, Mr. “Smith”’s response of “yes, sir” in English is not truly informative on the issue of whether Mr. “Smith” really understood the rights communicated to him in English or was freely, knowingly and intelligently waiving those rights.
The circumstances surrounding the interrogation of Mr. “Smith” further suggest a possible lack of understanding. When Detective B asks Mr. “Smith” “how much” he sold (type of drug) for, what the deputy and detective view as someone who is “hesitant” to respond could easily indicate someone who simply does not understand what is going on. Further, Mr. “Smith”’s response about “buying” rather than “selling” (type of drug) only underscores his confusion and lack of comprehension. It appears from the report that Detective B then has to “repeatedly” ask Mr. “Smith” questions before he “later” made a statement. This delay could also reflect a lack of comprehension of what was being said to him.
D. Was a Translator Available to Translate the Miranda Advisements Into the Defendant’s Native Language?
Another important consideration is whether a translator was available to convey the advisements to the defendant in his native language. United States v. Bernard S., 795 F.2d 749, 752-753 (9th Cir. 1986). In Mr. “Smith”’s case, the deputy and detective made no attempt to determine whether Mr. “Smith” spoke English. They made no attempt to ask about his native language or to find out in what language he generally communicated. At no point did law enforcement officers provide Mr. “Smith” with a court certified (non-English language) interpreter.
E. Were the Defendant’s Rights Individually Explained and Repeated to Him?
When an officer makes efforts to repeatedly explain or repeat the rights of which he is advising a defendant, the courts will take that into consideration in evaluating the validity of the advisements and of the defendant’s subsequent waiver. Derrick v. Peterson, 924 F.2d 813, 824 (9th Cir. 1990). In a very similar situation in Cruz, an officer who was attempting to advise the defendant of his rights in English made careful and patient efforts to make sure that the defendant there understood those rights. People v. Cruz, 44 Cal.4th 636 (2008). Instead of just going through the motions, reciting rights without attempting to give him any substance or meaning or trying to make sure that the defendant actually understood his rights, Detective Newsome in Cruz took pains to repeatedly and individually review each right with the defendant. He deliberately tried to explain each right in less formal terms to make sure that the defendant truly understood his rights, should he choose to waive them. For example, the detective explained that the right to remain silent meant that he did not have to talk to them if he didn’t want to. The detective also made efforts to clarify the right to an attorney, explaining to the defendant not only that if he did not have enough money to hire an attorney, one would be appointed for him, but also that “we’ll get you one before we ask you any questions.” Id. at 668.
In contrast here, no deputy or officer made any attempt to make sure Mr. “Smith” was truly understanding him or even to determine his native language. Law enforcement officers here also made no similarly careful or patient efforts to try to make sure that Mr. “Smith” understood each of his rights in a real way before waiving them.
F. Does the Defendant Have Prior Experience in the Criminal Justice System?
As the court allowed in Glover, it is also possible that a defendant’s prior experience in the criminal justice system could provide some basis for knowledge of his Miranda rights. United States v. Glover, 596 F.2d 857, 865 (9th Cir. 1979). Similarly, in United States v. Heredia-Fernandez, 756 F.2d 1412, 1415 (9th Cir. 1985), the court found that the fact that the defendant had a long history of arrests dating back more than a decade weighed in favor of his presumed familiarity with the protections offered by Miranda. Unlike the situation in Glover and Heredia-Fernandez, my client Mr. “Smith” has absolutely no past experience with the criminal justice system. He also did not grow up in the United States or attend school in the United States. As such, he has not had the opportunity to become aware of his constitutional protections, outside of the protection that is afforded him by the Miranda advisements.
As the U.S. Supreme Court wrote in Quinn v. United States: “It has been said that the privilege against self-incrimination is the “essential mainstay” of our system of criminal justice (Malloy v. Hogan (1964) 378 U.S. 1, 7), and reflects many of the fundamental values and most noble aspirations of our society, including: “our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminatory statements will be elicited by inhumane treatment and abuses; … our respect for the inviolability of the human personality …; our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes ‘a shelter to the guilty,’ is often ‘a protection to the innocent.’” Quinn v. United States, 349 U.S. 155, 162. (Murphy v. Waterfront Comm’n (1964) 378 U.S. 52, 55.)
As the court held in People v. Jimenez, 21 Cal.3d 595, 605-606, in finding that the voluntariness of a person’s confession must be proven beyond any reasonable doubt, the privilege against self-incrimination is rooted in our respect for the individual and in our ideals about the kind of society we all want to share. Every factor surrounding the “waiver” in Mr. “Smith”’s case, from the interaction with law enforcement that proceeded it, to the language barrier between Deputy A and Mr. “Smith”, to the individual characteristics of Mr. “Smith” and his lack of prior experience with law enforcement, all lead us to the inescapable conclusion that the waiver of rights obtained from Mr. “Smith” was not freely, knowingly and intelligently given. As such, the statements that flowed from that waiver must be excluded.
It is in many small ways and through many small cases that our constitutional rights are either championed or eroded. As Supreme Court Justice William Douglas reminds us,
“as nightfall does not come at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such a twilight that we all must be most aware of change in the air — however slight — lest we become the unwitting victims of the darkness.”
For the foregoing reasons, the defendant respectfully requests that this court grant Mr. “Smith”’s motion to suppress his statements as violations of his 5th Amendment right to remain silent under the U.S. Constitution.
JENNIFER ZIDE, Attorney for
By Criminal Defense Attorney Jennifer Zide
ph: (805) 477-0327/ 477-8024