All posts in “I.W. Law Blog”

Criminal Defense

Miranda and Handcuffs

Perhaps the most familiar phrase in the criminal law is “You have the right to remain silent. Anything you say can and will be used against you. You have the right to a lawyer. If you can’t afford a lawyer, one will be provided for you” This admonition comes from the 1966 landmark case of Miranda v. Arizona and requires police officers to inform suspects in custody of those rights before questioning them. A failure to provide those warnings requires court to exclude any statement made by the suspect in response to such questioning while in custody.

This raises the inevitable question of when is a suspect in custody. Police and prosecutors virtually always argue that a suspect is not in custody until the police explicitly tell the suspect he is under arrest. This position is patently wrong because there is no universal formula for determining when an individual is in custody for Miranda purposes and courts look at a number of considerations in each situation, all dependent on their own particular facts.

While courts considering the custody question often examine factors such as the location of the police-citizen encounter, the type of questions asked and whether the officers told the individual he was under arrest, one of the most important consideration from a defense perspective is whether the police handcuffed the suspect.

The use of handcuffs does not end the custody question, it is extremely rare for courts to find the suspect was not in custody when police deploy handcuffs because handcuffs are regarded as the hallmark of arrest. Appellate courts respect this principle and thus, except in very rare instances, exclude statements made in response to police questioning where the suspect is handcuffed at the time of the questioning. The District of Columbia most recently upheld this maxim in June, 2015 in the case of Broom v. United States.

In the undersigned’s experience, trial judges underplay the significance of handcuffs in Miranda litigation. Therefore, defense counsel must vigorously argue to trial courts that handcuffing is the closest thing to a bright-line imposing custody in the Miranda context and should not hesitate to challenge prosecutors to present instances where courts have found otherwise.

Witness swearing on the bible telling the truth

Advising the Client to Testify at the Suppression Hearing

One of the defense lawyer’s greatest dilemmas concerns whether the client should testify.  While it most often behooves the client to not testify at trial, different considerations apply in the suppression context, especially when asserting the Fifth Amendment right against self-incrimination to suppress statements obtained without Miranda warnings.

Questions of whether the police have authority under the Fourth Amendment to either arrest and search or stop and frisk a suspect turn on objective considerations viewed from the perspective of the police officers. Custody for Fourth Amendment purposes occurs when a reasonable person can only conclude that he is not free to leave the scene and that any attempt to leave will be physically prevented. Officers can generally conduct a frisk at that point if they have reasonable suspicion based on objective considerations. The individual encountering the police often can add little to the discussion through his testimony beyond claiming a version of events that seeks to discredit the officer’s version-an inherently problematic approach given the reality that judges rarely discredit a police officer based on the testimony of an alleged criminal.

Unlike the Fourth Amendment setting, however, subjective considerations play a role in determining if an individual is in custody for Miranda purposes. The officers’ obligation to provide Miranda warnings before questioning a suspect arises when the officer places the individual in custody. When the police obtain statements prior to providing Miranda warnings they inevitably claim that the suspect was not yet in custody when they questioned him and it is an important task for defense counsel to demonstrate otherwise.

Courts deciding custody for Miranda purposes consider factors such as the location of the encounter, the number of police officers present, the nature of the questions and the extent of any measures used to restrain the individual. The judge ultimately has to decide if a suspect would consider himself under arrest and whether the extent of police pressure or intimidation prompted him to give up his right against self-incrimination before the police communicated Miranda warnings.

The defendant is the only person who can describe the extent of pressure, coercion or even intimidation that he felt when he found himself surrounded by police officers who obtained statements from him prior to Miranda. Therefore, it is essential to prepare your client to testify at the suppression hearing, at least as a precaution against police minimizing the coercive nature of the encounter and consider yourself fortunate if the police officer’s testimony describes a sufficient degree of pressure and intimidation equivalent to an arrest that renders it unnecessary for your client testify, given that experienced practitioners know that frankness from the officer is the exception, not the rule, in the suppression context.

Invalid Warrants

Court Invalidates Search that Followed Invalid Warrant

A recent case from the District of Columbia Court of Appeals, Kim Smith v. United States, clarifies the exclusionary rule’s application where the search follows an arrest made by officers executing an invalid warrant where the invalidity is based on a mistake of law communicated by the police to the judge who issued the warrant. The case involved peculiar facts where the police stopped a vehicle because the inscription “Taxation without Representation” was obscured. The tag number was clear.

The officers believed they could stop the vehicle based on the obscured insignia. The officers searched the vehicle and discovered marijuana, but curiously did not arrest the individuals and instead applied for an arrest warrant where they recounted the facts regarding the clear license tag number and obscured insignia.

The officers arrested one suspect based on the warrant and recovered an additional stash of marijuana from him.

The trial court found invalid the search of the car at the time of the initial stop and suppressed the marijuana recovered in that search because the obscured insignia did not violate the applicable statute which prohibited obscuring of the tag number, but not the insignia. The trial court, however, did not suppress the marijuana recovered in connection with the arrest warrant because a judge had authorized the arrest by virtue of issuing the warrant despite his mistake regarding the scope of the applicable license tag statute.

The Court of Appeals reached the opposite conclusion by affirming the principle that a mistake of law cannot provide the objective basis for reasonable suspicion or probable cause and therefore cannot support a valid warrant. Therefore, the warrant itself was tainted and thereby triggered the exclusionary rule whose purpose is to hold law enforcement accountable for their mistakes.

The Smith is significant because it reiterates the principle that protection of individuals from admission of undesirable, inculpatory evidence is not the intended purpose of the exclusionary rule. Rather, the protection that results to the individual is an incidental benefit of the primary, if not sole, intended purpose of the exclusionary rule, namely to make certain that law enforcement complies with the law. Consequently, illegal police conduct, even unintentional or in good-faith, results in the exclusion penalty.

GPS Monitoring

Ruling Restricts GPS Monitoring

In Hunt v. United States, the Court of Appeals for the District of Columbia ended 2014 on a high note pushing back against a horrible infringement against civil liberties that the federal government has used with alarming frequency in recent years, namely the use of global position satellite (GPS) to monitor the movements of various individuals. electronic surveillance of individual. Specifically, the Court invalidated a conviction of tampering with a GPS device by an individual on parole and who had been ordered to wear the device not by a judge or even a parole official, but by an agent employed by an entity that monitors persons on parole, probation or whose case is pending trial in D.C. Superior Court.

In 1997 Congress created the Court Services and Offender Supervision Agency (CSOSA) to “carry out the conditions of release imposed by the United States Parole Commission or, with respect to a misdemeanant, by the Superior Court of the District of Columbia. CSOSA routinely monitors drug testing and provides a number of beneficial services such as drug program placement and mental health coordination. Like many government agencies, however, a dark-side of sorts has befallen CSOSA to the extent improper regulations have delegated to it a law enforcement role of sorts.   One regulation authorized CSOSA to require parolees to wear a GPS ankle bracelet as administrative sanctions for minor violations of parole conditions, such as late reporting for a meeting with a supervision officer.

In 2012 an individual ordered to wear a GPS monitor, dismantled the device and the United States successfully prosecuted him for the offense of tampering with a GPS device. The trial court rejected the defense that CSOSA lacked the authority to order him to wear the GPS device.

The Court of Appeals struck down the conviction because the regulation exceeded the permitted scope of the statute. The Court observed that the statutes creating CSOSA established CSOSA to monitor individuals, not sanction them. The regulation authorizing CSOSA’s use of GPS constituted a sanction. The Court further observed that while courts and the Parole Commission have authority to order individuals to wear a GPS device, CSOSA does not.

This decision marks a sorely needed victory favoring liberty interest using the fundamental checks and balances in the original Articles of the Constitution to the extent the Court found that a regulation issued by the executive branch of government exceeded the permitted boundaries of the applicable legislation which provided no authority for CSOSA’s actions. This case reinforces the lesson that the Bill of Rights is not the sole source of individual protections provided by the Constitution.

Witness in Court

Dealing with Grand Jury Rehabilitation of Witnesses

It is always enjoyable watching the prosecutor squirm a little when his key witness on the stand suddenly seems to have a loss of memory about what he saw your client do or starts providing testimony that does not hurt your client. However, you know better than to get too excited because you know full well from experience that the prosecutor will retrieve the witness’ grand jury testimony and either have him read it aloud or read it to him and that the judge will allow the jury to hear that prior grand jury testimony that inevitably casts your client in the worst possible light. Because those earlier statements were made under oath, they are properly admissible and juries often credit that testimony especially when the judge allows the prosecutor to submit the relevant portion of the grand jury transcript as an exhibit that the jury can take back to the jury room while deliberating your client’s fate.

In my experience the best way to attack the grand jury testimony on cross-examination is to illustrate for the jury the completely one-sided nature of the grand jury process and at the same time demonstrate to them just how important your job is as a defense lawyer to the advancement of a fair and just outcome. Questions that go along way to negating the grand jury testimony include:

“The prosecutor was the only lawyer in the grand jury room with you, right?”

“She asked questions and moved on before you could fully explain the answer, right?”

“There was no judge in there to rule on objections or make sure the questions were fair, right?

“There was no defense lawyer in the grand jury room to ask you to explain details of what you meant to say, right?”

“The details of what you would have said to the grand jury if allowed to finish your answer are what you started to say earlier in court (that my client didn’t do it) before the prosecutor started talking about your grand jury testimony, right?”

Prosecutors hate this line of inquiry, but it has been my experience that judges deem these questions relevant and overrule the prosecutor’s inevitable objection and jurors have generally been very receptive to those questions. I hope everyone reading this will be able to put this inquiry to good use and expand on it.