Arrest & interrogationKnow your rights.

Review Sources of law: statutes. Sources of law: judge made law.

Judges write opinions and those opinions are “law.” Pre-decisions from court or from our constitution. We inherited this judge-made law from merry old England.

Today: Arrest and Interrogation

•When is someone under arrest?

•What are your rights when under arrest?

ARREST!• “5-year-old arrested.”

Write in legal terms your impression of this arrest?

Should the police arrest this 5 year old? Why or why not?

ARREST!• “Crazy girl gets arrested.”

Think about your opinion on this arrest.

Write in legal terms your impression of this arrest?

Should the police arrest this girl? Why or why not?

ARREST!• “Cops arrest fireman.”

Your opinion. Should the police arrest the fire man? Why, why not? What is the law?

ARREST!

•What do these video scenarios have in common?•Brainstorm

ARREST!• United States v. Mendenhall (SCOTUS – 1980).

• The threatening presence of several officers;• The display of a weapon by an officer;• Some physical touching of a citizen’s person;• Use of language or tone indicating compliance is compelled. • What would have been your reaction if this had happen to

you?

Facts:D was seen exiting a airplane by two DEA agents in Detroit. The D’s conduct showed characteristics of persons carrying unlawful narcotics. The agents approached her identified themselves and asked for her identification and ticket. They were in different names. Agents learned she flew into L.A. two days earlier. D became quite shaken, extremely nervous. She had a hard time speaking. After returning the airline ticket and driver's license, the agents asked her to accompany them to their office for further questions. She followed the agents. She was asked if she would submit to a search of herself and her bag. She was told she had the right to decline. She said “go ahead.” The female officer asked her if she consented to the search again before it started. The search revealed two packages of heroin. D was placed under arrest. D moves to suppress the heroin as the result of an unlawful search.

Issues:Law Issue:Whether a seizure occurs when a reasonable person believes they are not free to leave?

Factual Issue:Whether a seizure had occurred where federal agents approached Ms. Mendenhall while walking through the airport and requested her identification?

Analysis:A person is “seized” only when, by means of physical force or a show of authority, his freedom of movement is restrained.  The court concluded that a person has been “seized” within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled. Here, no “seizure” of the D occurred. The events took place in the public concourse. The agents wore no uniforms and displayed no weapons. They did not summon the D to their presence, but instead approached her and identified themselves as federal agents. They requested, but did not demand to see the D's identification and ticket. The D was not seized simply because the agents approached her, asked her if she would show them her ticket and identification, and posed to her a few questions. Nothing in the record suggested that the D had any objective reason to believe that she was not free to end the conversation in the concourse and proceed on her way, and for that reason the court concluded that the agents' initial approach to her was not a seizure. The court’s concluded the D did not have to be expressly told that she was free to decline to cooperate with their inquiry.

Whether the D's consent to accompany the agents was in fact voluntary or was the product of duress or coercion, express or implied, must be determined by the totality of all the circumstances. The agents asked her to accompany them. There were neither threats nor any show of force. The D had been questioned only briefly, and her ticket and identification were returned to her before she was asked to accompany the officers.

Holding:Law Issue: Yes

Factual Issue: No Rule:

A person has been “seized” within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.

Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be 1) the threatening presence of several officers, 2) the display of a weapon by an officer, 3) some physical touching of the person of the citizen, or 4) the use of language or tone of voice indicating that compliance with the officer's request might be compelled

ARREST!

•“So long as a reasonable person would feel free to disregard the police and go about his business, the encounter is consensual and will not trigger Fourth Amendment protections unless it loses its consensual nature.”

ARREST!• Case studies. Let’s talk!

• Read the problem.• Discuss the questions.• ACTION!

ARREST! Debrief

•Factors demonstrating arrest.•Reasonable person test.•When in doubt, simply ask the officers if you can leave.

•ALWAYS BE POLITE.

INTERROGATION• Objectives:

• Know your rights when police have taken you into custody.• Know how to invoke those rights when in police custody.

INTERROGATION• Elon James White explains what to do if you’re stopped by the

police.

INTERROGATION• Your rights when in police custody:

• Right to remain silent. • Right to know that anything you say can be used against you in

court.• Right to have an attorney present, even if you can’t afford one.

INTERROGATION When do these rights apply?

Only apply in custody. As in, under arrest. Not when you’re voluntarily talking to police.

INTERROGATION• How do I invoke these rights?

• Like Elon said, you simply say, “I WANT AN ATTORNEY.”• What happens if you invoke your rights?

• The police must leave you alone.

Invoke: (verb) to summon into action or to bring into existence

INTERROGATION• Case studies. • Read the problem.

• Discuss the questions.• ACTION!

INTERROGATION• Characters:• • State Trooper• Drunk/High Driver • Driver is driving erratically in his/her car. State trooper pulls him/her

over. • State Trooper [to driver]:Can you step out of the car?• Driver:[slurs his/her speech, is obviously intoxicated]. Yes. [Gets out,

has trouble standing.]• State Trooper: Can you touch your fingers to your nose?• Driver: Sure. [Can’t touch fingers to nose].• State Trooper: Have you been using any drugs or alcohol tonight?• Driver: Heck yeah. Drugs AND alcohol.

INTERROGATION• One: The Traffic Stop.

• Did the driver have a right to an attorney? Why or why not?• Did the driver “invoke” any such right?

INTERROGATION• Answers:

• No such right – not in custody.• Did not invoke rights anyway.

Berkemer v. McCarty , was a decision of the United States Supreme Court which ruled that, in the case of a person stopped for a misdemeanor traffic offense, once they are in custody, the protections of the Fifth Amendment apply to them pursuant to the decision in Miranda v. Arizona 384 U.S. 436 (1966). Previously, some courts had been applying Miranda only to more serious offenses. The court however, stated that

The roadside questioning of a motorist detained pursuant to a routine traffic stop does not constitute "custodial interrogation" for the purposes of the Miranda rule. Although an ordinary traffic stop curtails the "freedom of action" of the detained motorist and imposes some pressures on the detainee to answer questions, such pressures do not sufficiently impair the detainee's exercise of his privilege against self-incrimination to require that he be warned of his constitutional rights. A traffic stop is usually brief, and the motorist expects that, while he may be given a citation, in the end he most likely will be allowed to continue on his way... However, if a motorist who has been detained pursuant to a traffic stop thereafter is subjected to treatment that renders him "in custody" for practical purposes, he is entitled to the full panoply of protections prescribed by Miranda.

INTERROGATION• Two: The (almost) Silent Person

Berghuis v. Thompkins, 560 U.S. ___ (2010) (docket 08-1470), is a decision by the United States Supreme Court in which the Court considered the position of a suspect who understands his or her right to remain silent under Miranda v. Arizona and is aware he or she has the right to remain silent, but does not explicitly invoke or waive the right. The Court held that unless and until the suspect actually stated that he was relying on that right, his subsequent voluntary statements could be used in court and police could continue to interact with (or question) him. The mere act of remaining silent was, on its own, insufficient to imply the suspect has invoked his or her rights. Furthermore, a voluntary reply even after lengthy silence could be construed as implying a waiver.

INTERROGATION• Two: The (Almost) Silent Prisoner

• Did he/she have a right to remain silent?• Did he/she invoke that right?• What could he/she have done to stop the

questioning?

If your told to be quiet be quiet!

The Court was split 5-4. The dissent, authored by Justice Sonia Sotomayor, argued that Miranda and other previous cases had required a claimed waiver of a constitutional right to be shown more strongly, especially in light of a lengthy interrogation with a possible "compelling influence" during which the accused had remained almost entirely silent for almost 3 hours prior to the self-incriminating statement.Responses from legal observers and the media were divided. Many considered Berghuis a further erosion of Miranda and were concerned it was "turning the clocks back" on safeguards developed in previous cases. Others saw the ruling as a sign of strength and a signal that the Court, under its own impetus, was willing to address known issues resulting from the view of terrorism as crime. The more common view was concern that vulnerable citizens could now be placed under pressure and, despite having an understanding of their rights, could be more easily coerced prejudicial to their interests.

INTERROGATION• Answers:

• Yes, he/she had a right to remain silent. He/she was in police custody.

• No, he/she did not invoke the right to remain silent. You really have to be silent throughout, or just say, “I’m invoking my right to remain silent.”

• Berghuis v. Thompkins (2010)

“Zip it.”- Dr. Evil

INTERROGATION• Three: The Ambiguous Request

Davis v. United States, 512 U.S. 452 (1994), was a 1994 United States Supreme Court case that established that the right to counsel can only be legally asserted by an "unambiguous or unequivocal request for counsel."[

Factual backgroundDavis, a member of the United States Navy, murdered another naval officer when he refused to pay a $30 debt that was incurred by losing a game of pool. The victim was beaten to death with a pool cue. Only personally-owned pool cues could be taken from the pool hall and Davis owned two pool cues. Naval investigators found blood on Davis's pool cue and several people stated that they had heard Davis confess to the murder.

INTERROGATION• Three: The Ambiguous Request

• Did the suspect invoke his right to a lawyer?• Can the suspect’s confession be used in trial?

Davis was taken into custody by Naval investigators and read his rights under Miranda. Davis confessed during the interrogation and then made an ambiguous request for an attorney by saying, "Maybe I should talk with an attorney." The investigators asked him if he did want one and he said, "No."RulingThe Supreme Court ruled that an ambiguous and unclear request for an attorney does not establish the right.The reasoning was that the defendant's rights under Edwards were not sufficiently requested under these facts. The request for an attorney must be clear and unambiguous.

INTERROGATION• Answers:

• No, the phrase “Maybe I should talk to a lawyer,” did not invoke and the detective didn’t have to clarify.

• Yes, because the request wasn’t clear enough, the confession can be used at trial.

• Instead, the person should have said “I want a lawyer.”• Davis v. United States (1994)

INTERROGATION• Summary

• People in police custody have the right to remain silent and to have a lawyer with them during questioning.

• But, a person must clearly invoke those rights.• If a person is not in custody, it means he/she is free to leave (but

ask first!).