Miranda revisited

 

Supreme Court rules that Miranda warning need not be given in particular terms

 

Officers looking for Powell in connection with a robbery went to his girlfriend's apartment and saw Powell coming out of a bedroom.  They arrested Powell and searched the bedroom, finding a gun.  At the police station, officers read the following warning statement:  "You have the right to remain silent.  If you give up the right to remain silent, anything you say can be used against you in court.  You have the right to talk to a lawyer before answering any of our questions.  If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning.  You have the right to use any of these rights at any time you want during this interview."  Powell agreed to talk to the officers.  He told the officers that he bought the gun for $150 from a street source because he needed protection.

 

The Florida Supreme Court held that the warning was inadequate, because Powell "was not clearly informed of his right to have counsel present during questioning."  The United States Supreme Court reversed the Florida court.  Relying on an earlier decision, Duckworth v. Eagan, 492 U.S. 195 (1989),  in which the Supreme Court held that there was no magic language required to give a Miranda warning, the Court held that, "in combination, the two warnings reasonably conveyed Powell's right to have an attorney present, not only at the outset of interrogation, but at all times."  The Court applied the reasonable person standard.  "A reasonable suspect in a custodial setting who has just been read his rights, we believe, would not come to the counterintuitive conclusion that he is obligated, or allowed, to hop in and out of the holding area to seek his attorney's advice."

 

The landmark Miranda decision required that officers administer the following warnings prior to custodial interrogation:  (1) the person has a right to remain silent, (2) that anything the person says can be used against him in a court of law, (3) that the person has the right to the presence of an attorney, and (4) that if the person cannot afford an attorney one will be appointed for him prior to any questioning, if he desires.  In Powell, the Court stated: "In determining whether police officers adequately conveyed the four warnings, we have said, reviewing courts are not required to examine the works employed as if construing a will or defining the terms of an easement.  The inquiry is simply whether the warnings reasonably convey to a suspect his rights as required by Miranda."  Florida v. Powell, --- S.Ct. ----, 2010 WL 605603 (U.S. 2010).

 

Court limits Gant; upholds admission of weapons from locked briefcase

 

An officer stopped Vinton for traffic violations (speeding and window tint).  When the officer approached Vinton's car, he saw a large knife in a sheath on the back seat, easily within Vinton's reach.  The officer knew that there had been a stabbing murder in the area in the prior 24 hours.  The officer took the knife and placed it out of Vinton's reach.  The officer asked Vinton whether there were other weapons in the car.  The officer wrote a citation and told Vinton that he intended to check the car for other weapons.  He asked Vinton whether there were other weapons in the car.  Vinton initially denied that there were other weapons, but then said "not that I know of."  The officer handcuffed Vinton, told him that he was not under arrest and conducted a protective search of the car.  In Michigan v. Long, 463 U.S. 1032 (1983), the Supreme Court authorized "vehicle frisks" and ruled that an officer may search a vehicle's passenger compartment for weapons during a traffic stop if the officer has a reasonable suspicion that the driver is dangerous and may reach weapons inside the car.  The officer found a butterfly knife, two cans of a chemical weapon and a locked briefcase.  Vinton denied that the briefcase was his and said that he didn't know why it was in his car.  The officer pried the briefcase open and found ecstasy, another knife, brass knuckles and a loaded gun with three additional magazines.

 

Vinton asked the court to suppress the evidence of the search, seeking to benefit from last year's Supreme Court decision in Arizona v. Gant.  Vinton argued that he was handcuffed at the time of the search and therefore the officer could not conduct a search incident to arrest.  The appellate court rejected Vinton’s claim.  The court stated that, "Gant held police may search a vehicle incident to the arrest of an occupant only in two circumstances: (1) when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search (the safety rationale); or (2) when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle (the evidentiary rationale)."  In Vinton's case, the evidentiary rationale justified the search because finding other weapons would show that Vinton had a specific intent to possess an illegal weapon (the butterfly knife).  The Gant decision did not hold that handcuffing or securing a person defeats the evidentiary rationale for a search incident to arrest.  Gant was a decision involving an arrest for a driver license violation and there was little, if any, likelihood that evidence supporting the driver license offense would be found in a search of the car that Gant was driving.  In Vinton, the appellate court strongly suggested that Gant's holding is narrowly limited to crimes where little or no likelihood of finding evidence of the crime under investigation.  Because the chemical weapons and knife strongly suggested that there would be other weapons in the car, the search was justified and the evidence was properly admitted against Vinton.  United States v. Vinton, --- F.3d ----, 2010 WL 392347 (D.C. Cir. 2010).

 

Officer receives qualified immunity for using a find-and-bite police service dog to locate drunk missing child

 

Melgar, a 13 year-old boy, became intoxicated for his first time at a birthday party.  Melgar and his 13 year-old friend were told to "go outside and walk it off" when the friend got a little too physical with one of the female partiers.  The boys quickly became lost in the cold winter night.  They had only light clothing.  The boys separated and Melgar's friend fell asleep under a bush after he vomited and urinated on himself.  A couple of hours later a passer-by saw the boy and called police.  The friend was suffering from hypothermia and alcohol poisoning.  The officers learned that Melgar was still missing.  A K9 officer responded.  The only dog available to find Melgar was a patrol dog, trained to find and bite suspects.  The officer called out to Melgar and began to track, with the dog on a 15 foot lead.  The dog found Melgar, who was asleep or passed out, and bit him on the ankle before the handler realized that the dog had located his quary.

 

Grateful or not that police saved his highly intoxicated young boy from near-certain death, Melgar's father sued.  The officer testified that he normally would have considered using a bloodhound to track.  However, the department’s bloodhound was incapacitated with an injury.  The officer considered that it was biting cold, the boy was reportedly highly intoxicated, his companion was seriously hypothermic, another bloodhound was at least an hour away and there was no known scent readily available, other officers had searched the neighborhood with lights and by calling out, and his belief that he would see the lost boy before his dog got close enough to bite.

 

The trial court refused to grant qualified immunity to the K9 handler.  The appellate court reversed, holding that there was no clearly-established law concerning whether a find-and-bite dog may be used to locate a missing person.  Moreover, the court recognized that the handler had used the dog as a last resort to find a boy presumed to be in great danger and missing for several hours.  The court also recognized that the handler had tried to keep the dog from biting by using a leash and watching the dog.  The court noted that the plaintiff’s attempt to establish liability by citing the much-criticized IACP guideline that police dogs should be trained to find-and-bark was unhelpful.  The IACP guideline reflects an opinion, but not clearly-established law.  Moreover, the IACP guidelines do provide for use of a patrol dog to locate missing persons when precautions are taken.  The handler in this case followed those precautions.  Melgar v. Greene, 593 F.3d 348 (4th Cir. 2010).

Xiphos (pronounced zee-phose) is a biweekly summary of recent court decisions about criminal procedure and other subjects important to law enforcement officers and administrators.  The xiphos is a short double-edged sword used essentially as a backup weapon by ancient Greek warriors.