When Justice Thomas is the author of a criminal opinion, you can be sure that it will not benefit the defendant and he does not disappoint in Utah v. Strieff. The reason this opinion is so bad is that it rewards the police for violating an individual’s constitutional rights. Here, even though the police officer had no right to stop Mr. Strieff and would not have known that an outstanding arrest warrant existed had he not made the illegal stop, methamphetamine recovered was admitted as evidence.
To understand why this is such a bad opinion, you need to understand the Exclusionary Rule. The Exclusionary Rule states that if the search or seizure is illegal then anything found can’t be used in trial except when:
1) The police would have found it anyway (Inevitable discovery)
2) There was an independent source which was completely separate from the illegal search or seizure, or
3) The connection between the misconduct and the evidence was weakened by time or intervening circumstances.
Here, Justice Thomas selected door #3, the Attenuation Doctrine. But the illegal stop was only minutes before a warrant check and subsequent search– so this doesn’t really make sense. So anytime a valid warrant exists, Strieff will be cited for the proposition that the illegal stop was only a little bit bad and after all, there was a preexisting valid warrant and the guy had drugs on him anyway. So I guess that makes it okay.
Category: Constitutional issues
Assume that there is a valid reason for the car you are in to be pulled over: speeding, registration etc. The car has the lingering odor of marijuana. What/who can be searched?
In State v. Pigford (Aug. 2, 2106) NC Ct. of Appeals (COA 15-1047), the court ruled that the odor of marijuana emanating from inside a vehicle does not provide an officer with probable cause to conduct an immediate warrantless search of the driver.
What does this mean?
If the car just smells of marijuana but no particular person reeks of marijuana, the car can be searched as can items which could contain marijuana but occupants of the car cannot be searched.
BUT, if an occupant of the car has a very strong odor of marijuana on his body, that person could be searched but no one else.
AND if during the search, contraband (illegal items: drugs, guns…) is found and supports the arrest of an occupant of the car, that person can be searched (as part of the arrest for possession of that contraband) but no one else can be searched.
WHAT??? I can’t keep all this straight?
Search and seizure law is tricky. Let your lawyer argue that there is no probable cause BUT don’t undermine your case by giving consent to search. If you consent, it doesn’t matter that the evidence would have otherwise been suppressed or excluded. Just know that there are many permutations of the law and it is very fact specific. So even if the car you are in smells of marijuana, it doesn’t give the police the right to search your person. The Constitution provides more protection for searches of people than of property.
The focus of this blog series has been to expose the deliberate interplay of psychological techniques designed to elicit a confession. The nine step method explained in Criminal Interrogation and Confessions (1986) by Inbau and Reid culminates in steps seven to nine and the resulting confession.
Step seven is the alternative question. An alternative question is a question which presents two choices to the suspect concerning some aspect of his crime. Although both choices are an admission of guilt, one of the choices is morally appealing. An example of an alternative question includes, “Have you done this many times before or was this the first time?”; “Did you blow that money on drugs and partying, or did you use it to buy food for your family?”; “Was this whole thing your idea or did you get talked into it?”
None of these alternative questions addresses the actual consequences of the crime which the suspect may encounter so as not to be interpreted as a promise of leniency. Once a suspect opts for the more palatable option and acknowledges culpability, the oral confession follows.
In step eight, the interrogator develops corroborating evidence to fortify the acceptance of responsibility and obtains an oral confession.
In step nine, the oral confession is reduced to writing.
The interrogation is analogous to a dance; one party leads and controls the steps of the passive party. The first step is the accusation which advances to the development of the theme. The interrogator is always leading. The suspect will try to assert himself only to be ignored or dismissed. When the interrogator has refused to hear any denials, the suspect will withdraw and become passive. Once this vulnerable mood sets it, the interrogator switches tactics and draws the suspect in close and calls him by his name. Feeling validated by this attention, the interrogator delivers the alternative question and the suspect is presented with two choices with one being clearly more desirable. If the suspect selects an option, the interrogator needs only to wrap up the dance; the confession is a done deal.
The interrogation is never an opportunity for a suspect to explain his side. It is never anything other than a method by which the interrogator extracts a confession. The Miranda admonition cautions a suspect that he has the right to be silent and anything said may be used against him in court. Heed the admonition and don’t think that you are the exception; the person who can use the interrogation to your benefit. Stay silent and ask for an attorney.
The interrogation has begun; the interrogator has accused the suspect of the crime and developed his theme. Now, the suspect will begin to deny guilt. According to the nine step procedure for extracting a confession introduced in Criminal Interrogation and Confessions by Inbau and Reid, both guilty and innocent suspects will deny the accusations. Despite denials, a Reid trained interrogator “knows” that the suspect is guilty so there is no room for “weak denials.” Denials are not tolerated since the more a suspect denies involvement or is permitted to repeat or elaborate on a denial; the less likely a confession will result. Consequently, if the suspect tries to deny, the interrogator will ignore, interrupt or dismiss the denial by saying “we are beyond that point and we know you did it.”
By refusing to allow the suspect to deny the accusations or offer any details relating to his innocence, the officer overcomes the objections of the suspect and minimizes the importance of what the suspect has to say. An “objection” by the suspect is a statement offered by the suspect to prove that the interrogator’s accusation is false. In this step, the interrogator takes the suspect’s objection and uses it to further the interrogator’s own theme of guilt.
Having been rebuffed when attempting to deny, having all claims of innocence turned against him and not being able to get a word in edgewise, the suspect begins to withdraw. Responding to the suspect’s passive mood, the investigator moves his chair closer to the suspect in order to appear emotionally sympathetic and empathetic and quickly procures and retains the suspect’s attention by cultivating a personal connection. The interrogator moves closer to and physically touches the suspect. The officer maintains eye contact and begins calling the suspect by his first name. While the suspect’s “passive mood” is being carefully cultivated, the interrogator will condense his theme to one or two central elements and moves into the next step of the process designed to elicit the initial admission of guilt.
The last blog entry of this series will address this final stage.
In a recent case , a mentally ill man was allotted 30 seconds to let go of a post and accompany the police to a mental hospital. He refused and was tased five times, handcuffed and shackled face down where he died. (Armstrong v. Village of Pinehurst (January 11, 2016).)
In 2011, during an Occupy protest, at the University of California at Davis, when students refused to disperse, officers used military grade pepper spray at close range. The university paid over $1 million in civil settlements.
In both instances, police used an excessive amount of force but what should they have done?
The Orlando Police Department created this Use of Force Continuum with definitions of levels of resistance to clarify the appropriate level of force response:
Suspect resistance Officer use of force
1. No resistance – Officer presence
2. Verbal noncompliance – Verbal commands
3. Passive resistance – Hands-on tactics, chemical spray
(The subject fails to obey verbal direction,
preventing the officer from taking lawful action)
4. Active resistance – Intermediate weapons: baton, Taser, strikes, non deadly force
(The subject’s actions are intended to facilitate an escape or
prevent an arrest. The action is not likely to cause injury)
5. Aggressive resistance – Intermediate weapons, intensified techniques, non deadly force
(The subject has battered or is about to batter an officer,
and the subject’s action is likely to cause injury)
6. Deadly-force resistance – Deadly force
(The subject’s actions are likely to cause death or
significant bodily harm to the officer or another person)
(Adapted from the Orlando, Florida, Police Department’s Resistance and Response Continuum)
In the Armstrong case, holding on to a post would be classified as passive resistance and hands-on tactics/chemical spray are recommended; a taser is not appropriate. The U.C. Davis students also failed to obey verbal direction and were passive resisters but chemical spray, though listed as an appropriate response constituted excessive force when sprayed in the faces of kneeling protesters.
Use of force is an officer’s last option — a necessary course of action to restore safety in a community when other practices are ineffective.” The level of force to be used is the minimum amount necessary to mitigate an incident, make an arrest, or protect themselves or others from harm. The appropriate level of force used varies based on the situation and the officer’s level of training or experience. “ (Michael E. Miller, “Taser Use and the Use-of-Force Continuum: Examining the Effect of Policy Change,” The Police Chief 77 (September 2010): 72–76, http://www.nxtbook.com/nxtbooks/naylor/CPIM0910/index.php#/72)
Obviously, police training in hands-on techniques and de-escalating charged situations using verbal commands are needed. Only training and experience will result in increasing the likelihood of an appropriate response.
This blog series discusses the interrogation rubric introduced in Criminal Interrogation and Confessions (1986) by Inbau and Reid which is the basis for law enforcement protocol nationwide. The first two steps are discussed in this Blog.
Step One of the interrogation is called the direct positive confrontation. The suspect is informed in unequivocal language that evidence clearly indicates that he committed a crime and in support of this assertion, real or fictional evidence is proffered. To persuade a guilty suspect to confess, the investigator exaggerates his confidence in the suspect’s guilt. If the suspect fails to confess, the suspect is henceforth treated as a liar.
After the initial accusation, the investigator must make a “transition statement.” An example of a transition statement is: “While there is no doubt that you did this, what I need to establish are the circumstances which led up to this happening.” The transition statement is psychologically integral to the interrogation because it offers a reason for the interrogation other than to elicit a confession. Note that the transition statement assumes that the suspect’s guilt is no longer at issue. With this more congenial transition statement on the heels of the confrontational initial accusatory statement, the investigator gives the suspect the opportunity to elaborate for the first time since the interrogation commenced with the expectation that the suspect will take the opportunity to shift responsibility away from him and towards external facts or persons as being responsible for the crime.
Step Two of the interrogation process is theme development. A theme is a monologue in which the investigator offers and reinforces existing moral and psychological justifications for the suspect’s criminal behavior. In order to match the correct theme to the suspect, the investigator must determine whether the suspect is emotional or non-emotional.
If the suspect is emotional, the technique known as “minimization” is used. Here, the investigator mitigates the offense and downplays its seriousness. The investigator begins building rapport with the suspect by offering empathy, moral justification and sympathy to the suspect’s predicament and assists the suspect in rationalizing and excusing his criminal behavior. Blame is placed on the victim, accomplice or the existence of extenuating circumstances and the seriousness of the crime is deemphasized. This is an example of a minimization theme in a burglary interrogation:
“Bob, I believe you went into that house out of desperation because of your financial situation. I don’t think you are a common criminal or a bad person. I think you tried hard to pay your bills and feed your family but when you lost your job you got further and further in debt. Because you are a good husband and father, you reached the end of your rope when your daughter got sick and needed to go to the doctor. In a moment of desperation and on the spur of the moment, you broke the window of the house on Elm Street and took some jewelry to sell. It is obvious that those folks have more money than they know what to do with and they even left their back door unlocked.”
In the example, the crime is minimized and the break in is morally justified as a reasonable act in the face of financial difficulties.
Alternatively, if the suspect is non-emotional, “maximization” of the evidence, crime or severity of punishment is utilized. The investigator exaggerates the strength of evidence against the suspect and magnitude of charges. The interrogator tries to scare the suspect into confessing by making false claims of the strength of the evidence and exaggerating the seriousness of the offense. Depending on the jurisdiction and the extent to which police are able to deceive the suspect, an investigator may stage an eyewitness identification or fabricate a lie detector test.
In the next installment, dealing with denials will be discussed.
- Interrogate : to ask (someone) questions in a thorough and often forceful way. (Merriam-Webster dictionary)
This blog series is designed to expose and explain the coercive nature of the police interrogation known as the Reid Technique as described in Criminal Interrogation and Confessions, by Fred E. Inbau and John E. Reid. This technique has become the foundation for police interrogation education and training. In the Netflix series “The Making of a Murderer,” this method is exemplified by the interrogation of Brendan Dassey.
As a criminal defense attorney and the product of years of network television dramas, I always knew that speaking to the police without counsel was fraught with danger yet a huge percentage of my clients spoke to the police when invited to do so. Why? Because they confused an “interview” with an “interrogation” and erroneously believed that the police were interested in what they had to say. Additionally, people speak to the police because they believe their situation will improve if they do so. They believe that the police will accept their information and either release them or stop investigating them. The suspect believes he is being “interviewed” when in fact; he is being accused and “interrogated.” What is this fundamental difference?
An interview is a non-accusatory, unstructured fact-finding conversation typically conducted in the beginning of an investigation and can occur anywhere. The questioner is trying to collect investigative and behavioral information in order to form an opinion as to who their suspect is and how the crime occurred. Investigative information is obtained by asking questions which will permit the interviewee to give detailed answers and even volunteer information. The investigator will take notes and ask follow-up questions. In the case of Brendan Dassey, a question like “What do you know about what happened to Teresa Halbach?” is an interview question; it invites a conversation.
Contrast this type of question with “Brendan, there is absolutely no doubt that you were involved in Teresa Halbach’s murder.” Here, the Reid method brands the suspect as “deceptive” and the police forcefully advise the suspect that the investigator is absolutely certain of his guilt and possesses evidence in support of this opinion. This may be true or not. The accusatory statement must show a strong level of confidence and serves to forestall any attempt by the suspect to deny knowledge or involvement in the crime.
Perhaps most illuminating is the language of Mr. Reid regarding the taking of notes:
“The investigator should not take any notes until after the suspect has told the truth and is fully committed to that position. Premature note-taking during an interrogation serves as a reminder to the suspect of the incriminating nature of his statements and can therefore inhibit further admissions against self-interest. Only after the suspect has fully confessed, and perhaps after the confession has been witnessed by another investigator, should written notes be made documenting the details of the confession.”
Finally, the interrogation must be conducted in a controlled environment. The room must be private, free of external distraction with a door that can be closed. The room details are specific. The room should be 10’x10’ space and the distance between the chairs should be 4’-5’ away from each other. There should be no barriers between the suspect and the investigator. A desk or table offers a psychological shield behind which a deceptive suspect will hide. (Creating A Temporary Interview Room, PoliceLink.)
When given the opportunity to be silent, take it. You have no obligation to EVER speak to the police and you should never do so without an attorney present. It isn’t a fair fight and in an interrogation, law enforcement’s goal is to extract an admission or confession not to listen to an explanation. The next installment of this series discusses the psychological underpinnings of the Reid method and the type of coercion employed.
In listening to the discussions of the Netflix documentary, “The Making of a Murderer,” an overwhelming majority of people mention the confession of the 16 year old suspect Brandon Dassey as being particularly disconcerting. Mr. Dassey, was a high school boy with an IQ in the 70’s when he confessed to participating in a sexual assault, kidnapping and murder. He made multiple confessions and recanted the confessions each time.
The combination of his tender age and his borderline mentally retarded/developmentally disabled cognitive abilities made him particularly vulnerable to interrogation techniques employed by an investigator and police. For those who are not familiar with interrogation techniques used against Mr. Dassey, one needs only to study the nine step Reid Technique espoused in Criminal Interrogation and Confessions by Inbau, Reid and Buckley (1986). This book is the authoritative text as to how to obtain a confession. Law enforcement in the United States has embraced this procedure and believe that a truly innocent individual will be able to withstand the psychological trickery and therefore if a confession is obtained, it must be the product of a guilty individual.
In order to understand the psychological underpinnings of this nine step approach one must realize that everything from a remote and quiet interrogation room, the placement of chairs, use of a desk, the wearing of civilian clothing etc. is all designed to increase tension and maximize the police officer’s control. The interrogation techniques are aimed at breaking down denials and resistance and thereby increasing the likelihood of a confession. But is the confession accurate?
In subsequent installments of this confession blog series, I will discuss in detail the Reid Technique and the psychological manipulations utilized, why innocent people confess to crimes they did not commit and the dangers inherent in confessions obtained using this technique.
In State of North Carolina v. Allman (COA 15-40, January 5, 2016), the Appellate Court, the court ruled that the police could not search a house where known narcotic sellers lived if no facts were presented in the search warrant affidavit that drugs were expected to be found at the residence. Just because known sellers lived there, if there were no observations linking the house to narcotic sales, they could not search it.
Furthermore, just because the police said that probable cause existed, without actual facts alleged in the affidavit, just sayin’ it did not make it so. Also, the warrant allegation stating that two occupants of the house were engaged in drug trafficking did not translate into a natural and reasonable inference that drugs were possessed, sold or manufactured at the house.
Now, the law in NC is different from the federal law. The federal laws permit the inference that “in the case of drug dealers, evidence is likely to be found where the dealers live.”