Use of the “Question First, Warn Later” Tactic Not a Curative Measure in Police Interrogation

Police that question a suspect first, get a statement, recite the Miranda warnings, and then solicit the statement again can no longer rely on the warning as a curative measure under Missouri v. Seibert

Reyes v. Lewis, 2016 BL 266420, 9th Cir., No. 12-56650, 8/17/16.

   The Ninth Circuit found that the police tactic of questioning a suspect, receiving a statement, and then giving their Miranda warnings would not make a second statement admissible in court. Police must take special “curative measures” to ensure that the suspect understands their rights, even if a statement is obtained from the suspect before their Miranda warnings. The purposeful tactic of questioning first and then providing the warning afterwards cannot be used without further measures to ensure that a reasonable person would understand the effect of the Miranda warnings and waiver.

https://www.bloomberglaw.com/public/desktop/document/Reyes_v_Lewis_No_1256650_2016_BL_266420_9th_Cir_Aug_17_2016_Court?1472579705

Suspect’s Conversation with Himself is Admissible in Court

Incriminating comments made in a police cruiser by a suspect speaking to himself, while being recorded, is not an interrogation and are admissible in court

United States v. Bailey, 2016 BL 253698, 8th Cir., No. 15-3591, 8/4/16.

    The Eighth Circuit ruled that comments made by a suspect while alone that were recorded on camera in a police cruiser are admissible in court. The police arrested the suspect after chasing him down when he fled a traffic stop. While alone in the car, he made an incriminating comment about the police finding his gun. In court, the defendant argued that these statements should be suppressed because they were made before he received his Miranda warnings and that he essentially was engaged in an interrogation. By being placed in the police cruiser with an active camera, the defendant contended that the police hoped or even expected him to make incriminating statements.

   The circuit court, however, disagreed with the defendant’s reasoning. Even with the police hoping that the defendant would incriminate himself on camera, the hope does not rise to an interrogation understood under Miranda jurisprudence. The court even noted that regular booking queries were stopped by the time the defendant was placed in the cruiser, further emphasizing that any formal interrogation or questioning had come to an end.

http://www.bloomberglaw.com/public/document/United_States_v_Bailey_No_153591_2016_BL_253698_8th_Cir_Aug_05_20.

Noncustodial Interviews Must Stop When Lawyer Arrives

Police had a duty, under the State's due process clause, to tell a man being questioned that his lawyer had arrived, even though he was not technically in custody.

State v. McAdams, 2016 BL 126886, Fla., No. SC14-788, 4/21/16

     The Florida Supreme Court ruled that, even if a suspect came to the station voluntarily and is not yet in custody, police questioning must stop when the suspect's lawyer arrives. The court decided that "the only way to properly protect the due process rights of citizens under the Florida Constitution is to implement a bright-line rule." The bright line rule will prevent the court from determining specifically "what type of conduct, coupled with the failure to inform the individual of the attorney's presence, would be sufficiently outrageous to rise to the level of a due process violation."

     This ruling, along with previous rulings, confirms Florida's greater due process protections than that of the Fifth Amendment to the U.S. Constitution.

http://www.bloomberglaw.com/public/desktop/document/State_v_McAdams_No_SC14788_2016_BL_126886_Fla_Apr_21_2016_Court_O?1463582946