Questions & Answers Series
Criminal Procedure Topics:
Interrogation; Right of Privacy;
Incident to Arrest)
The defendant was arrested for a string of robberies. He was not
advised of his Miranda rights. While he was being booked in the
jail, one of the patrol officers saw the defendant through a door and
realized that he and the defendant had gone to grammar school together.
The defendant had not seen the officer. In conjunction with his
supervising officer, the patrol officer changed into a jail uniform and
was placed in a two-person jail cell just before the defendant was
locked into the same cell. When the defendant saw the patrol officer, he
remembered his grade school "buddy" whom he had not seen since the sixth
grade. After their boisterous reunion, the patrol officer regaled the
defendant with the officer's criminal history, all of which was false.
Then the officer asked the defendant why he was in jail. At first, the
defendant was reluctant to talk about it, but the officer persisted and
prodded. After much cajoling, the defendant told the officer-cell mate
about the robberies. The officer drew from the defendant all of the
details of multiple robberies which were transmitted through a listening
device and recorded for later use against the defendant. The defense has
moved to suppress the officer's testimony and the recording of the
conversation in the jail cell.
(A) The evidence is inadmissible because the defendant was never
(B) The evidence is inadmissible because it was secured through
trickery by a police officer posing as a cellmate.
(C) The evidence is admissible because there was no police
(D) The officer may testify about the defendant's statements,
but the recorded evidence is inadmissible.
Answer (C) is correct. Miranda is intended to alleviate
the inherent coercion attendant upon custodial interrogation. Here, the
defendant is in custody and is being interrogated by the police, but he
or she does not know it. The Supreme Court has said that when a person
does not know he is being interrogated by a police officer, even while
in custody, there is not the same type of coercion that inhabits
questioning by a person the suspect knows is a police officer.
Therefore, the questioning lacks the pressure that attaches when a
suspect is facing a police officer who demands answers. Even though the
defendant in this question was questioned by a police officer while in a
jail cell, he thought he was dealing with a friend who was in the same
difficult situation. He could have more easily resisted the pressure by
the cell mate to tell about the crime. Illinois v. Perkins,
496 U.S. 292 (1990). As such, there was no police interrogation.
Answer (A) is incorrect. Since the defendant did not know he was
being interrogated by the police, there was no need to Mirandize him
before the questioning.
Answer (B) is incorrect. The Supreme Court that decided Miranda
found trickery to be an unacceptable technique for securing a confession.
The Court has changed since Miranda was decided, and the current
Court does not share the same disdain for trickery. Moran v. Burbine,
475 U.S. 412 (1986).
Answer (D) is incorrect. A person in a jail or corrections
institution has a very limited expectation of privacy, generally based upon
the institutional need for safety and security. Although the listening
device in the cell is totally unrelated to security, the failure to prove a
particularized security need does not expand an inmate's protected privacy.
General theories of risk have been applied in these situations: when one
tells another a secret one runs the risk that the confidante will betray the
trust of the shared secret, and the person sharing has no Fourth Amendment
protection in the secret. Hoffa v. United States,
385 U.S. 293 (1966). Moreover, the transmission of the conversation
through the listening device raises no additional Fourth Amendment issue
because there is no protection of privacy where one party to a conversation
consents to the eavesdropping. The officer who engaged the defendant in the
cell may testify to the defendant's statements, and the wire is deemed to be
merely a more accurate way to capture and preserve the conversation.
United States v. White,
401 U.S. 745 (1971).
Right of Privacy
David Dogood, a first-year law student, was in a study group that met each week in one of its member's apartments. When the study group met for the first time at Hadley Baxendale's apartment, David went to the bathroom and saw on top of a bedroom dresser right next to the doorway a large baggie of marijuana, rolling papers, and a corn cob pipe. David was quite familiar with marijuana because he had used it frequently in college. Two weeks later, David went to the police station and reported what he had seen. The police chief told David that the police had been watching Baxendale for some time because they suspected he might be dealing. The chief asked David if he would be willing to return to Baxendale's apartment wearing a wire to get more information about Baxendale's using and dealing.
David was outfitted with a wire and returned to Baxendale's apartment. When he knocked on the door, he told Baxendale that he returned because he thought he had left his contracts book at the apartment after the study session two weeks earlier. Baxendale let David into the apartment, offered him a beer, and invited David to sit down. David mentioned what he had seen in Baxendale's bedroom the night the study group was there and wondered, as prompted by the police chief, whether Baxendale could get some marijuana for him. Baxendale offered to sell him some premium weed the following Tuesday night after Baxendale picked up a shipment that afternoon. Armed with the information transmitted by the wire, police obtained a search warrant and searched the apartment the following Tuesday night, finding a large quantity of marijuana. Baxendale's attorney has filed a motion to suppress the marijuana and David's testimony about Baxendale's statements.
The court should?
(A) grant the motion because a person has the highest expectation of privacy in his or her home and police essentially entered that home when David returned wearing a wire.
(B) grant the motion because the eavesdropping by wire was illegal without a warrant.
(C) deny the motion because David, a private person, violated the defendant's right of privacy, but Fourth Amendment violations by private individuals are not the proper subject of a motion to suppress.
(D) deny the motion because Baxendale voluntarily admitted David to his home and took the risk that David would tell others, including the police, what he saw in Baxendale's apartment and what was said between the two; the use of the wire did not change the situation.
Answer (D) is correct. We have the highest expectation of privacy in our homes, but this is a case of "misplaced confidence." We run a risk when we tell anyone a secret that we do not want to share with the world; we accept that risk when we allow people into our homes and share our deepest secrets. We know that the person in whom we have confided may betray that confidence and tell others what was said. When Baxendale voluntarily let David into his home, he knew what he was doing. He did not know that David was there on behalf of the police, but he took the risk that David would betray his trust. Police could not have entered without a warrant, but Baxendale willingly admitted David and responded to his question about drugs.
United States v. Hoffa,
385 U.S. 293 (1966).
Answer (A) is incorrect. That David misrepresented his reason for being there does not make his presence illegal.
Lopez v. United States, 373 U.S. 427 (1963).
Answer (B) is incorrect because the addition of a wire does not change the basic equation of "misplaced confidence." If police had the right to use David to gain evidence against Baxendale, the fact that they did it in the most effective way that preserved Baxendale's incriminating statements by the use of the wire was held by the Supreme Court not to raise any additional Fourth Amendment issues.
United States v. White, 401 U.S. 745 (1971). Police do not need a warrant to capture a conversation when one of the parties to the conversation consents to the eavesdropping. The Fourth Amendment guarantees only against unreasonable searches and seizures performed by government agents.
Answer (C) is incorrect. If a private individual acting on his or her own obtains evidence through an illegal search or seizure and then turns that evidence over to a government agency, the agency may use that evidence because it was not involved in the Fourth Amendment violation. In this case, David was a police agent when he returned to the Baxendale apartment wearing a wire. Consequently, if he had violated Baxendale's Fourth Amendment rights, that violation would have been charged to the police.
A warrant is valid if based upon probable cause that in turn must be based upon knowledge obtained by the police legally. The issue in this case is whether police could hide behind a visitor to Baxendale's home who was working as an agent of the police. The Supreme Court has upheld the police use of a secret agent whom the target voluntarily admits into his or her protected space. What a person voluntarily exposes to others in his or her home is not protected by the Fourth Amendment.
Katz v. United States, 389 U.S. 347 (1967). Baxendale ran the risk that any of his study group might look into the bedroom and see the marijuana. He let David in the second time not knowing that by then David was acting for the police. The Supreme Court found the additional fact insignificant and upheld the use of a wire in such situations.
Id. Consequently, the police are permitted access to an individual's home without that person knowing he or she has admitted the police. Everything the individual voluntarily exposes and discloses is admissible under these circumstances.
The defendant lives with his wife and twelve-year-old child. Both the defendant and his wife work out of the home and usually return home at 5:00 pm. The child is usually home alone after school until his parents return from work. On one such afternoon, the child who was home alone answered a knock on the door and found a police officer who requested permission to search the house. The child consented, and the defendant seeks to have evidence found during the consensual search suppressed at trial.
How should the judge rule on the motion to suppress?
The evidence will likely be suppressed. [This question] raises an issue that makes American courts uncomfortable. If, ordinarily, a parent's right of privacy extends to the entire house, should a child's right of privacy be equally broad, especially when the child consistently has total dominion over the house for a period of hours every day? The issue is not relationship, and courts err when they dwell on it. The question is not whether the consenter had authority to waive the defendant's rights, but whether the consenter had sufficient interest or authority in the place searched to waive his or her own rights and grant consent. The problem, of course, is clouded when the consenter is a child, and police seek the child's consent so that they can search for evidence to be used against the child's parent. The issue raises negative implications of the state relying upon a child to help gain incriminating evidence against the parent reminiscent of twentieth-century totalitarian regimes. The negative implication has resulted in courts sometimes veering from the proper Fourth Amendment privacy issue to hold that a child may not waive his or her parent's rights. See
City of Columbus v. O'Hara, 1986 Ohio App. Lexis 8054 (Ohio Ct. App. 1986). But agency theory is not the appropriate vehicle on which to decide Fourth Amendment consent issues. The proper issue is whether the consenting person's rights to privacy and common access extend to the entire house and, specifically, to the area within the house where the evidence was found. See
United States v. Clutter, 914 F.2d 775 (6th Cir. 1990). Few could argue that latch-key kids do not have dominion over their homes, indicating that children do have sufficient authority to invite police to enter their homes, if a general rule were to be applicable.
There are several alternative approaches which may be considered that do not require abandoning general principles and resorting to using an agency theory. One approach would be to suggest that a child has no authority to permit people into the child's own home, but that probably does not stand up to analysis in light of the fact that children are frequently home alone at all hours of the day and exercise dominion over their homes, which they share with their parents. Alternatively, one could suggest that a
twelve-year-old cannot validly waive his or her constitutional rights without a parent present, but that is a broad proposition that courts are not likely to accept. A third approach would be to say that children do not have authority to admit strangers into their own homes except in an emergency, and that a police request to search does not qualify as an emergency.
Search Incident to Arrest
Defendant was arrested at his place of employment after his wallet was discovered at the site of an arson. He has prior arson convictions. Defendant was taken to jail, booked, and placed in a holding cell. The next day, just prior to his arraignment, the clothing that defendant had worn when he was arrested and while in jail was taken from him and sent to a lab for tests. The lab results showed smoke residue and trace evidence of the same accelerant used in the blaze. The state offered the clothing and the chemist’s testimony of the lab results at defendant’s trial.
The evidence should be
(A) admitted as a proper search incident to arrest.
(B) admitted as part of an inventory search.
(C) excluded because police should have secured a warrant.
(D) excluded because the clothing should have been taken when defendant arrived at the police station.
Answer (A) is correct.
The general rule is that a search of a person that may be done at the time of arrest may be done later at the police station, even if significant time has elapsed.
Answer (B) is incorrect. Following a lawful arrest, police may make an inventory of the items the arrestee possessed at the station as part of standardized booking procedures. Whether or not an object is subject to search incident to arrest, it may be inventoried if the item was brought to the police station with the defendant.
Illinois v. Lafayette, 462 U.S. 640 (1983). However, the delayed seizure of the clothing from the defendant in this question would indicate that it is not part of a standardized booking procedure, but a search for evidence.
Answer (C) is incorrect. A warrant is unnecessary in this case, especially when the tests are for evidence of the crime for which defendant was arrested.
Answer (D) is incorrect. The search and physical tests flow directly from the arrest even though the clothes were not taken from the defendant until the next day. That is especially true when the object is an item associated with the person of the accused, which would include the clothing worn at the time of the arrest.
United States v. Edwards, 415 U.S. 800 (1974).