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Late in the evening on a blustery fall day, detectives arrived at the residence of my client, for the purposes of this article “Mr. “Smith”, an elderly gentleman with health issues and no criminal history, to execute a search warrant for possible marijuana sales and cultivation. Seven detectives arrived at the residence at the time. After knocking loudly, they demanded entry (in English), and then, when there was no response, opened the unlocked door and entered the residence. Immediately upon entering, detectives spotted “Mr. Smith”, ordered him to the ground, and handcuffed him. While the detectives searched the residence, with firearms drawn, “Mr. Smith” was detained face down and handcuffed on the ground for a period of twenty-five minutes.

After they completed the search, detectives questioned “Mr.Smith” outside of the residence, after first reading him his Miranda rights from a department issued card. It appears that the rights were read in English (which, it is worth noting at this point, is not the first language of “Mr. Smith”) and further, that all attempts to communicate with him took place in English. After being read his rights, Mr. Smith said “yes” when asked if he understood his Miranda rights. In addition to asking Mr. Smith if he understood those rights, the detective went even further and affirmatively asked Mr. Smith if he wanted to speak with officers. Mr. Smith said “yes sir”.

After this “waiver” of his Miranda rights, Mr. Smith made a series of statements to detectives regarding the cultivation and sales of marijuana. As is customary, after the interrogation in the field, detectives took Mr. Smith to an interview room at the Station. At this point, he was again read his Miranda rights – in English, using the Department issued card. After this second “waiver”, a more detailed interrogation took place and Mr. Smith wound up making further statements, which were even more damaging to his case.

The question then becomes: Was Mr. Smith’s response to the Miranda warnings read to him in English by the detective the kind of waiver of those rights that is required in order for a waiver of a defendant’s Fifth Amendment rights to be considered valid?

OVERVIEW

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 revisited 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, “[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 appraised 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 and truly free 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).

CUSTODY

Before the interrogation safeguards of Miranda can go into effect, a person must be “in custody.”

So what does “custody” mean?

A client is in custody when both he himself feels, and a reasonable person in his position would feel, that he was “not free” to leave. This is a bit of a legal fiction because we all know that a person stopped by an officer while driving and then subjected to observations and questioning does not truly feel, during that experience, that she is free to leave; yet courts have preserved the “fiction” that this is not a scenario of “custodial interrogation”, but rather merely “roadside investigation”, in which Miranda warnings are warranted.

As your defense counsel, we can argue based on both the setting and the course of conduct engaged in by law enforcement that were effectively “in custody” at the time of questioning, and thus subjected to “custodial interrogation”. For example, in Mr. Smith’s case, he had just been present when a large, intimidating group of detectives entered his home under a search warrant, ordered him to the ground and detained him for lengthy period of time face down on the ground, 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 just one of the detectives, any reasonable person in Mr. Smith’s position would have felt that he was not free to leave.

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 under these circumstances in his own home 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, that invasion of a treasured sphere of personal privacy by law enforcement authorities could only make him feel less secure. 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.

THE “WAIVER”: WAS IT ADEQUATE?

And what of the waiver itself: Examining what is termed the “totality of the circumstances”, was that “knowing, intelligent, or freely given” as required under the Constitution?

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.

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 establish that he fully understood it. Id. at 538.

Like the defendant in Garibay, Mr. Smith led a daily life communicating in a native language that was a language other than English. Even in his workplace, he was surrounded by speakers of his native language and, because he came to the U.S. later in life, did not have the chance to attend school here and learn English. Mr. Smith’s daily interactions with the larger, English-speaking public were also very limited due to his serious health issues.

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). As the court noted in Oregon v. Bradshaw, a single response, such as “yes”, is not controlling. 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. 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.

What goes on between Mr. Smith and the detectives in the course of the interrogation further casts doubt on the validity of any claimed waiver. it is clear from a thorough review of the audio of the interrogation, undertaken by my office, that Mr. Smith, at numerous points in the interrogation, was not understanding the other questions put to him by the officers.

Cases Where Clients are not Native English Speakers: Here the case law makes clear that the best course of action in order to protect individual rights is to: (1) inquire as to the person’s native language, and either (2) provide an interpreter or (3) carefully and patiently explain those important rights to non-English speakers. 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 them any substance or meaning, the detective 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.

The careful efforts of the detective in Cruz are in sharp contrast to what our client Mr. Smith was subjected when officers made no effort to determine if he understood any of his rights, or indeed even understood English, before accepting his “waiver”.

THE “BABE IN THE WOODS” CLIENT AND WAIVERS

Does Experience with the “Big Bad Wolf” Ultimately Pay Off?

The answer to that is: Sadly, No.

As the court allowed in Glover, it is 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 was a true “babe in the woods”, someone having absolutely no past experience with the criminal justice system. This factor actually weighed in his favor in arguing against a valid waiver.

CONCLUSION

In conclusion, we must never lose sight of our important Constitutional rights if we are to keep them meaningful and alive. True freedom means not acting out of a position of fear or powerlessness – and with full awareness of your choice. That type of freedom is essential to the validity not just of our individual rights, but of our own personal journeys. With the Fourth, Fifth, and Six Amendments, the Founding Fathers sought to “lift up” the individual and empower him or her against all the power inherent in the state, its law enforcement authorities, and the potentially grinding impact of its machinery. All in all, these important Amendments are not just another “brick in the wall” (credit here to Pink Floyd); they are the wall breakers.

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 leads us to the inescapable conclusion that it was not freely, knowingly and intelligently given. As such, the statements that flowed from that waiver must be excluded as evidence in court. When this kind of motion to suppress is granted, the case against a client implodes due to the lack of important, admissible evidence and the result may be dismissal.

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.”

At the Law Office of Jennifer Zide, your rights and your freedom are more than our business; they are our belief and our commitment. If you have a question about what happened in your interrogation or a concern about other police conduct you faced, please call us today to discuss the details of your specific case.

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