This chapter was updated on March 12, 2024, and reflects case and statutory law through December 1, 2023.
Links to previous versions of this chapter can be found immediately above the endnotes.
Thus far this book has discussed how the Fourth Amendment and related statutes affect an officer’s authority to make an investigative stop, arrest, and search. This chapter discusses other constitutional provisions and related statutes that affect an officer’s authority to investigate crime—specifically, interrogation and confessions, lineups and other identification procedures, and the use of undercover officers and informants.
A defendant’s confession (full acknowledgment of guilt) or admission (partial acknowledgment of guilt) obviously is important evidence in a criminal case. Sometimes even a statement apparently favorable to a defendant—for example, a defendant’s statement that he or she acted in self-defense—may be valuable to the prosecution when other evidence disproves it.
Officers must understand some of the basic rules of interrogation so that they do not violate a person’s constitutional rights and make the person’s statements inadmissible at trial. The rules are sometimes complex: a motion to suppress a defendant’s statement at trial may require the court to consider separately whether the defendant’s rights have been violated under the Fourth, Fifth, Sixth, or Fourteenth Amendments to the United States Constitution or under the North Carolina Constitution or statutes.
When officers attempt to take a statement from a defendant, they must be aware of at least six constitutional and statutory issues that may affect the statement’s admissibility in court:
A statement that results from a violation of any one of these rights may be inadmissible as evidence. These issues are discussed below.
When officers arrest a defendant with probable cause, they may take the defendant into custody, remove the defendant from the scene of arrest to another place, and attempt to interrogate the defendant. And, of course, the officers must take the defendant before a magistrate without unnecessary delay. When officers have reasonable suspicion that a person has committed a crime, they may briefly stop the person to investigate further. However, as discussed in Chapter 2, officers usually exceed the scope of an investigative stop if they take a person without his or her consent from the scene of an investigative stop to a law enforcement facility for interrogation. Thus, if officers do not have probable cause to arrest, they must be able to show in court that the person voluntarily came with them after they made an investigative stop. Officers may want to inform the person that he or she is not under arrest, although such a statement is not legally required to prove that the person voluntarily consented to come with the officers.
Officers often want to question a person because their investigation indicates that the person is a suspect but there is insufficient evidence to establish probable cause to arrest. Officers may go to the person’s home and question the person there if, by their words or conduct, they do not seize the person under the Fourth Amendment (see the discussion in Chapter 2). If the officers want to question the person at their law enforcement facility, they must receive the person’s voluntary consent to come with them—assuming, of course, that they still do not have probable cause to arrest the person. Sometimes officers may leave a note at the person’s home or a voicemail or text message that simply mentions that they would like to speak with the person. If the person voluntarily comes to a law enforcement facility in response to one of these types of communication—or in response to an officer’s similar request made to a member of the person’s family—the person usually has not been seized under the Fourth Amendment. Officers may want to inform the person that he or she is not under arrest and is free to leave at any time before they begin their questioning, although such a statement is not legally required to prove that the person is there voluntarily. A signed statement by the person stating that he or she is there voluntarily is also not required, although such a statement is useful in proving that fact in court.
In any of the situations described above, if the person who is with the officers voluntarily gives an incriminating statement that by itself or with other information establishes probable cause, officers may then arrest the person.
If officers obtain a statement from a person after they have unconstitutionally seized the person under the Fourth Amendment—that is, after they exceeded the scope of an investigative stop based on reasonable suspicion or they arrested the person without probable cause—the State has the burden of showing that intervening events occurred between the unconstitutional seizure and the later statement to break the connection between them. The fact that officers properly gave Miranda warnings and obtained a valid waiver will not by itself satisfy the State’s burden of disproving that the statement directly resulted from the officers’ violation of the defendant’s Fourth Amendment rights.
Even if officers do not violate a person’s constitutional rights, a statement may be inadmissible at trial if it was obtained as a result of a substantial violation of a person’s statutory rights under North Carolina law. For example, North Carolina law requires that officers take an arrestee to a magistrate without unnecessary delay, although they may delay the arrestee’s appearance before the magistrate for various investigative purposes, including interrogation (see the discussion in Chapter 2). If officers substantially violated the arrestee’s statutory rights and the unnecessary delay caused the statement to be given, the statement may be inadmissible at trial.
North Carolina legislation requires that certain custodial interrogations be electronically recorded. Chapter 15A, Section 211 of the North Carolina General Statutes (hereinafter G.S.) applies to “custodial interrogations” at “any place of detention.” These phrases impose four preconditions for the recording requirement:
If an interrogation of a suspect meets the above criteria, an electronic recording must be made of the entire interrogation. An electronic recording must be a simultaneous audio and visual recording whenever reasonably feasible. If the recording is visual, the camera must be placed so that it films both the interrogator and the suspect. The recording must begin with the officer advising the person of his or her constitutional rights and must end only when the interview has completely finished. Brief recesses requested by the person in custody or the officer need not be recorded, but the recording must reflect the starting time of the recess and of the resumption of interrogation.
G.S. 15A-211 contains several provisions on the effect of compliance or noncompliance with the recording requirements. First, the statute describes the effect on the admissibility of statements that were not recorded. A failure to comply “shall be considered” by the court in adjudicating a motion to suppress a statement made by the defendant. Also, a failure to comply is admissible at trial in support of a claim that the defendant’s statement was involuntary or unreliable if the evidence is otherwise admissible. When evidence of compliance or noncompliance has been presented at trial, the jury must be instructed that it may consider credible evidence of compliance or noncompliance in determining whether the defendant’s statement was voluntary and reliable. (This last provision probably does not mean that the jury decides whether the statement was “voluntary” within the meaning of the Fourteenth Amendment requirement of voluntariness, which is a question of law for the court to determine in ruling on a motion to suppress.)
Second, the statute describes the effect of noncompliance on subsequent statements. It states that if the court finds that the defendant was subjected to a custodial interrogation that was not electronically recorded as required, any statements later made by the defendant that are recorded may be questioned concerning their voluntariness and reliability.
Third, the statute provides that the State may present as evidence against a defendant a statement that was recorded as required if the statement is otherwise admissible. It is not clear how this provision adds to the State’s right to introduce statements of the defendant that are otherwise admissible.
Fourth, the statute provides that if the State failed to comply with the recording requirements, it may show by clear and convincing evidence that the statement was voluntary and reliable and that the officer had good cause for not electronically recording the interrogation in its entirety. Good cause includes, among other things, the suspect’s refusal to have the interrogation recorded and unforeseeable equipment failures.
Fifth, the statute provides that it does not preclude the admission of certain listed statements, such as spontaneous statements not made in response to questioning, statements made during arrest processing in response to routine questions, statements made during custodial interrogation conducted in another state by officers of that state, and statements obtained by a federal law enforcement officer.
The State must retain the electronic recording of a defendant convicted of an offense related to the interrogation until one year after the completion of all appeals of the conviction, including the exhaustion of any appeal of any motion for appropriate relief under state law or any habeas corpus proceeding under federal law. Recordings of interviews of nondefendants may be destroyed “at the conclusion of the State appeal process.”
Effective for offenses committed on or after October 1, 2023, a new statute requires the recording of “[a]ll interviews of in-custody informants by a law enforcement officer.” Such an informant is defined to mean one “whose testimony is based on statements allegedly made by [a] defendant while both the defendant and the informant were held within a . . . correctional institution . . . where statements relate to offenses that occurred outside of the confinement.” In plain English, the statute is addressed to interviews with so-called jailhouse snitches. The statute would not apply to, for example, an interview with a defendant’s co-conspirator—even if the defendant and the co-conspirator are in jail together—so long as the co-conspirator’s information about the offense under investigation came from his or her interactions with the defendant prior to arrest.
The statute does not provide specific remedies for noncompliance. However, substantial violations of the statute may implicate the exclusionary rule in G.S. 15A-974. Recordings made under the statute must be retained “until one year after the completion of all State and federal appeals of the [defendant’s] conviction, including the exhaustion of any appeal of any motion for appropriate relief or habeas corpus proceedings.”
A defendant’s statement is not admissible at trial for any purpose unless it was made voluntarily and with understanding. There are no simple rules for determining whether a statement is voluntary. A court looks at the totality of the circumstances surrounding the statement to determine whether the statement was improperly induced by hope or fear and therefore was involuntary, or whether it was made voluntarily and with understanding. Some important factors in this determination include the following:
Officers may not use physical threats or other kinds of conduct that might induce a defendant to make a statement in fear of what might happen if the defendant does not do so. Officers also may not make promises to induce a defendant to talk—for example, promises about what will happen to the criminal charge or what the officer will do for the defendant if he or she talks.
It is difficult to generalize about what officers may and may not do or say before and during interrogation because appellate review of their conduct focuses on the total circumstances surrounding a defendant’s giving of a statement—not just isolated comments or acts. However, officers should avoid making statements that (1) promise a reduced charge or sentence or better treatment if a defendant will give a statement, (2) inform a defendant that the officers will testify in court for the defendant if he or she gives a statement, or (3) inform a defendant that it will be harder on the defendant if he or she does not cooperate with the officers.
On the other hand, officers may request that a defendant tell the truth. They also may truthfully tell a defendant about, or present, evidence that they have against the defendant, but they should do so in a nonthreatening way so that they do not improperly induce or coerce the defendant to make an incriminating statement.
If officers lie to or deceive a defendant about the evidence against him or her, a resulting incriminating statement is not necessarily considered involuntary. However, a court may rule that the statement is involuntary if all the circumstances surrounding the statement show unacceptable coercion, particularly if the defendant was in custody or if the officers also made any promises or threats before or during the interrogation.
The United States Supreme Court has recognized a narrow “public safety” exception to the Miranda rule. A person’s statement during custodial interrogation that was given without Miranda warnings is admissible at trial when officers have an objectively reasonable need—that is, their subjective belief or motivation is not controlling—to protect themselves or the public from an immediate danger associated with a weapon. For example: An officer responds to a report that a woman has been raped by a man with a gun who has just entered a grocery store. The officer arrests and frisks a man and discovers that the arrestee is wearing an empty shoulder holster. After handcuffing him, the officer asks the arrestee where the gun is located. In such a case, the officer may need to determine immediately the whereabouts of the gun that the officer reasonably believes the arrestee has just removed from his holster and discarded in the store. The gun may be dangerous to any person (such as an employee or a customer) who finds it, or an unknown accomplice may use it. The arrestee’s answer to the officer’s question would be admissible even though he or she had not been given Miranda warnings and waived his or her rights. However, once an officer has obtained the necessary information or when the danger is over, the officer must give the arrestee Miranda warnings if the officer intends to continue questioning.
The United States Supreme Court has recognized that routine booking questions may be asked and answered without officers having to give Miranda warnings, provided the questions are not designed to elicit incriminating statements. Thus, officers may ask an arrestee for such information as name, address, height, weight, eye color, date of birth, current age, employment, and the like without giving Miranda warnings—even if the arrestee has already asserted the right to counsel or the right to remain silent—and the information may later be used in prosecuting the arrestee. However, if an arresting officer is a detective investigating a first-degree statutory rape (in which the defendant’s age is an element of the crime), the defendant’s answer to the detective’s question about the defendant’s age would not be admissible at trial if a court ruled that the question was designed to elicit an incriminating response. Similarly, when an officer arrests a suspect for maintaining a dwelling for purposes of drug activity then asks the arrestee for the arrestee’s address during the booking process and without a waiver of the arrestee’s Miranda rights, the arrestee’s response may not be admitted at trial to establish that the arrestee had possession or control of the premises.
North Carolina law requires that additional statutory warnings and rights be provided to a young person before custodial interrogation may begin. If officers take into custody a juvenile who is 16 or 17 years old, they must advise the juvenile of the right to have a parent, guardian, custodian, or caretaker present during questioning—in addition to giving Miranda warnings. If officers take into custody a juvenile under 16 years old, a statement obtained during custodial interrogation is not admissible in court unless the juvenile’s parent, guardian, custodian, or attorney was present during the interrogation. If an attorney is not present, the officers must inform the parent, guardian, or custodian of the juvenile’s rights, although that person may not waive those rights on the juvenile’s behalf.
The North Carolina Supreme Court has ruled that when a break occurs between an initial interrogation and a later resumption of interrogation, five factors must be considered in determining whether the initial Miranda warnings given to the defendant have become so stale that the warnings must be repeated before the second interrogation begins:
It is difficult to derive a general rule from these factors. Although there will be other occasions when officers will not need to repeat Miranda warnings, officers may safely forego them if they were the ones who conducted the first custodial interrogation, if both interrogations occur in the same place, if the time between interrogations is only a few hours, and if they have no reason to believe that the defendant is unaware of the Miranda rights given before the first custodial interrogation.
The United States Supreme Court ruled that when an officer as part of an interrogation technique deliberately fails to give required Miranda warnings and obtains a confession, then later gives Miranda warnings and obtains another confession, neither the first nor the second confession is admissible absent special circumstances.
Clearly, officers should not engage in this interrogation technique.
The North Carolina Court of Appeals ruled that an officer’s remarks were the functional equivalent of questioning as set forth in Innis when the officer held a pocketbook (which he believed the defendant had secreted in a car) in front of the in-custody defendant and twice said to him, “I wonder whose this is?” and then said that it belonged to either the defendant or another named person. The court concluded that the officer should have known that his remarks were likely to elicit an incriminating response.
Before officers undertake custodial interrogation, they must inform a defendant of his or her Miranda rights and any applicable North Carolina statutory rights, as discussed above under “The Miranda Rule and Additional Statutory Rights.” Officers also must be sure that the defendant understands these rights. The State has the burden of proving by a preponderance of the evidence that the defendant knowingly and voluntarily waived these rights.
The United States Supreme Court has ruled that a court may find a legally sufficient waiver of Miranda rights following the giving of warnings without an officer’s explicitly discussing a waiver with the defendant if other factors show an implied waiver. Despite this ruling, cautious officers may want to continue to obtain an explicit waiver, as reflected in many Miranda forms. A properly obtained explicit waiver will increase the likelihood—compared to an implied waiver—that a court will find a valid waiver. And even if there are deficiencies in obtaining an explicit waiver, there still may be enough evidence that a court will find a legally sufficient implied waiver.
The discussion below states that an officer is not required to clarify a defendant’s equivocal assertion of the right to remain silent or the right to counsel. However, that legal principle may not apply at the waiver stage. (This issue has not been decided by the United States Supreme Court or North Carolina appellate courts.) For example, a court might not find a valid waiver of Miranda rights if the defendant was unclear at the waiver stage as to whether he or she wanted to assert the right to remain silent or the right to counsel. An officer may need to clarify whether the defendant is willing to waive the right to remain silent and the right to counsel before obtaining a valid waiver.
When an in-custody defendant clearly asserts the right to remain silent or the right to counsel while Miranda warnings are being given or after custodial interrogation has begun, officers may not begin interrogation or must immediately stop interrogation if it has already begun.
What if a defendant merely expresses uncertainty about talking—that is, he or she does not make an unambiguous assertion of the right to remain silent? The Berghuis ruling provides that an officer is not required to clarify a defendant’s equivocal (uncertain) request to remain silent and thus may continue to interrogate the defendant. For example, a defendant’s statement, “I’m not sure I want to answer any more questions,” would not require clarification by an officer. However, a prudent officer who is unsure as to whether a defendant’s request is clear or equivocal may want to clarify whether the defendant wants to remain silent.
A defendant’s in-court assertion that he or she wants a lawyer for a pending charge is not considered an assertion of the right to counsel under the Fifth Amendment. However, that in-court assertion clearly qualifies as an assertion of the Sixth Amendment right to counsel for the pending charge; see the discussion later in this chapter under “A Defendant’s Sixth Amendment Right to Counsel.”
When, if ever, may officers attempt to resume interrogation after there has been an assertion of rights? The rules differ, depending upon whether the defendant has asserted the right to remain silent or the right to counsel. Therefore, they will be discussed separately. If the defendant has asserted both rights, the more restrictive rule that applies to assertions of the right to counsel governs both.
The Court ruled that the admissibility of a defendant’s statements after the defendant has exercised the right to remain silent depends on whether that right is “scrupulously honored”—as it was in this case. The Court noted that the robbery detective immediately stopped his questioning after the defendant said that he did not want to discuss the robberies. He did not attempt to resume questioning or in any way try to persuade the defendant to reconsider his refusal to talk. After questioning had been suspended for a “significant period of time” (in this case, about two hours), the homicide detective—after giving the Miranda rights and obtaining a waiver—did not question the defendant about the robberies but instead focused exclusively on a completely unrelated crime.
It is difficult to set out a general rule as to when an officer may resume questioning after a defendant has asserted the right to remain silent. Officers should remember that Mosley did not involve a resumption of questioning by the same officer for the same crime. The United States Supreme Court would not necessarily have approved of further questioning under identical circumstances after only two hours. The critical question is whether the officer scrupulously honored the defendant’s assertion of the right to remain silent by waiting a significant period of time before attempting a second interrogation.
If a defendant asserts the right to remain silent and then changes that decision on his or her own initiative and wants to talk with officers, the officers may talk with the defendant immediately. However, officers should consider giving Miranda rights to the defendant again and obtaining a waiver before resuming interrogation, even though they may not legally be required to do so in all cases.
The Court ruled that once a defendant has asserted the right to counsel, officers may not question the defendant until a lawyer is made available to the defendant or until the “[defendant] himself initiates further communication, exchanges, or conversations” with an officer. The State may not show a valid waiver of the right to counsel after the defendant has asserted that right by merely establishing that the defendant waived that right later after being given another set of Miranda warnings. The Court further ruled that in this case the defendant’s rights were violated when the detectives returned the following day to interrogate him. It noted, however, that if the defendant had initiated that meeting, he could have properly waived his right to counsel that he had asserted the day before.
A detective went to a Maryland prison in 2003 to question the defendant about his alleged sexual abuse of his son, for which he was not then charged. The defendant was serving a prison sentence for a conviction of a different offense. The defendant asserted his right to counsel under Miranda, and the detective terminated the custodial interrogation. The defendant was released back to the general prison population to continue serving his sentence, and the child abuse investigation was closed. Another detective reopened the investigation in 2006 and went to another prison where the defendant had been transferred and was still serving his sentence. The detective gave Miranda warnings to the defendant, who waived his Miranda rights and gave a statement that was introduced at his child sexual abuse trial.
The Court adopted a fourteen-day break in custody as sufficient to deal with potential law enforcement abuse that could occur by releasing the defendant and promptly bringing him or her back into custody for re-interrogation. The Court noted that under Edwards, courts had to determine whether a defendant was in custody when he or she requested counsel and when the defendant later made the statements that he or she sought to suppress. With the new fourteen-day-break-in-custody rule, courts simply need to repeat the inquiry for the time between the initial assertion of the right to counsel and re-interrogation. And when it is determined that a defendant has been out of custody for two weeks before the contested re-interrogation, a court is spared the fact-intensive inquiry as to whether the defendant ever, anywhere, asserted the Miranda right to counsel.
The Court ruled that a two-part test applies when determining the admissibility of statements made after a defendant asserts a right to counsel. First, did the defendant initiate further conversation? The Court ruled that in this case the defendant’s statement showed a willingness to discuss the investigation. It was not simply a question about the custodial relationship, such as a request for water or to use a telephone. Second, did the defendant validly waive the right to counsel that he or she had previously asserted? The Court ruled that the State in this case had satisfied its burden of showing that the defendant had done so.
Officers should remember that the State has the burden of showing that the defendant (1) initiated the conversation and (2) then validly waived the right to counsel. Officers should consider giving Miranda rights to a defendant again and obtaining a waiver before they resume interrogation, even though they may not legally be required to do so in all cases.
There is also a right to counsel guaranteed by the Sixth Amendment, which provides a defendant with the right to the presence of counsel at certain pretrial events as well as at the trial itself. An officer’s authority to obtain a statement when a defendant has a Sixth Amendment right to counsel presents complex legal issues. Officers need to understand some of the basic principles to avoid violating a defendant’s Sixth Amendment rights and to ensure that any statement they obtain will be admissible at trial.
There are two separate issues with the Sixth Amendment right to counsel: (1) when the right attaches (begins), and (2) when a defendant has the right to the presence of counsel.
The United States Supreme Court has ruled that the Sixth Amendment right to counsel attaches (begins) at the initial appearance after arrest that is conducted by a judicial official (in North Carolina, usually a magistrate) or when the defendant is indicted or an information has been filed, whichever occurs first in a particular case. The initial appearance before a judicial official after arrest and the issuance of an indictment or information are triggering events; when they occur, the State is considered to have committed itself to prosecute.
The fact that a defendant has hired a lawyer does not, by itself, necessarily mean that the defendant has the Sixth Amendment protections of the right to the presence of counsel. The determining factor is whether a critical stage of a prosecution is taking place at or after the time when the Sixth Amendment right to counsel has attached (begun).
The Sixth Amendment provides a defendant with the right to the presence of counsel at any critical stage of a criminal case at or after the time when the right to counsel has attached (begun). And officers’ deliberate efforts—by themselves or through an informant acting at their direction—to elicit information from a defendant by interrogation or conversation about the pending charge at or after the time that the right to counsel has attached (begun) is always a critical stage (but see the discussion of Patterson v. Illinois, 487 U.S. 285 (1988), and Montejo v. Louisiana, 556 U.S. 778 (2009), later in this chapter under “Assertion of the Sixth Amendment Right to Counsel.”)
The time when the Sixth Amendment right to counsel attaches (begins) must be determined for each criminal charge. For example, if a defendant has been charged with crime A for which the Sixth Amendment right to counsel has attached (begun), an undercover informant acting at the officer’s direction may not question the defendant about crime A without violating the defendant’s Sixth Amendment rights. However, an officer generally may question the defendant about crime B if the right to counsel has not attached (begun) for that crime (see the discussion of Maine v. Moulton, 474 U.S. 159 (1985), below under “The Sixth Amendment Right to Counsel and the Use of Informants to Obtain Statements.”)
Although an officer may not be prohibited from initiating interrogation under the Sixth Amendment right to counsel, the officer may still be prohibited from interrogating a defendant by the Fifth Amendment under Edwards v. Arizona and Arizona v. Roberson, as discussed above under “The Right to Counsel.” For example: A defendant is arrested for armed robbery and requests counsel during custodial interrogation. Under Edwards and Roberson, officers are prohibited from continuing or later initiating interrogation about the armed robbery or any other offense, whether related or not to the armed robbery, as long as the defendant remains in continuous custody. If the defendant did not request counsel but asserted the right to remain silent, that assertion bars continuing interrogation or re-initiating interrogation except under limited circumstances, as discussed above under “The Right to Remain Silent.”
If there is no Fifth Amendment issue because, for example, a defendant is not in custody, an officer may initiate interrogation of a defendant who has a Sixth Amendment right to counsel if the officer advises the defendant of his or her rights and obtains a valid waiver of those rights (see the discussion below under “Waiver of the Sixth Amendment Right to Counsel” for the content of warnings and waiver.)
Assuming a defendant has not asserted the right to counsel during custodial interrogation that would bar interrogation of an in-custody defendant under the Fifth Amendment, the overruling of Jackson raises the issue of the extent to which an officer may initiate interrogation under the Sixth Amendment. If an officer sought to interrogate a defendant but the defendant refused to waive his or her Sixth Amendment right to counsel, could the officer try again later? The Court in Montejo did not address this issue. However, the Court did discuss in a different context the improper badgering of a defendant to obtain a waiver of counsel. Thus, it would appear that a second attempt to initiate interrogation after a refusal to waive counsel would be questionable.
What constitutes a valid waiver of the Sixth Amendment right to counsel? The United States Supreme Court has clearly stated and the North Carolina Supreme Court has ruled that a defendant may validly waive the Sixth Amendment right to counsel even in the absence of the lawyer who is representing the defendant for the offense(s) with which the defendant has been charged. Also, Miranda warnings and a waiver are usually sufficient to waive the Sixth Amendment right to counsel. However, because it has not been definitively established by the United States Supreme Court that Miranda warnings and a waiver are sufficient in all kinds of Sixth Amendment right-to-counsel cases, a cautious officer may want to (1) add to the Miranda warnings a specific mention of the charge pending against the defendant (for example, “Do you understand that you have been indicted for the murder of Harold Jones?”) and of the lawyer or organization (for example, the public defender’s office), if any, representing the defendant (“Do you understand that Susan Underwood is your attorney for the murder charge against you?”) and (2) add to the Miranda waiver an explicit waiver of the right to counsel who is representing the defendant (for example, “Are you willing to waive your right to have counsel present, including Susan Underwood, your attorney?”).
Warnings and a waiver must be executed whether or not the defendant is in custody because the Sixth Amendment right to counsel exists under either circumstance.
Although a variety of factual situations may present possible Sixth Amendment violations when an officer deliberately attempts to elicit from a defendant a statement about a pending charge, particularly through the use of informants, it is worth discussing five United States Supreme Court cases that represent some common issues.]
The United States Supreme Court stated that, in cases involving statements by defendants obtained through the use of informants, the issue is whether the informant, a government agent, “deliberately elicited” statements from the defendant. It ruled that the informant here did so and therefore violated the defendant’s Sixth Amendment right to counsel. First, the defendant was unaware that the informant was acting as a government agent. Second, the informant had an incentive to produce useful information. He was paid only if he produced useful information. Third, the fact that the informant and the defendant were confined together made the defendant particularly susceptible to the informant’s ploys.
Although the federal officer had instructed the informant not to question the defendant, the informant was not a passive listener. Rather, he engaged the defendant in conversations, and the statements at issue resulted from these conversations. Even if the federal agent did not intend that the informant take affirmative steps to secure information from the defendant, he must have known that the proximity of the two would probably lead to that result. This was not a case of a passive listener or a passive listening device that overhears statements (see Kuhlmann v. Wilson, discussed below.) The Court noted that it did not question its prior rulings concerning the permitted use of undercover agents in obtaining statements from persons not in custody and before they had a Sixth Amendment right to counsel, as occurred in Hoffa v. United States (the defendant’s incriminating statements made to a secret government informant during the course of a labor-racketeering trial were admissible at a later jury-tampering trial because he made them before he had a Sixth Amendment right to counsel for the jury-tampering charge) and United States v. White (no Fourth Amendment violation occurred when a government agent was wired so as to transmit to officers his conversations about drug transactions with the defendant because the conversations took place before the defendant had a Sixth Amendment right to counsel for the drug charges).
The United States Supreme Court ruled that the defendant’s right to counsel had been violated because the government deliberately elicited statements from the defendant after he had a Sixth Amendment right to counsel.
The United States Supreme Court ruled that the officers deliberately elicited these incriminating statements in violation of the defendant’s Sixth Amendment right to counsel. The officers’ instructions to Colson were not sufficient to assure that Colson would not discuss the pending theft charges with the defendant, especially as they knew that the defendant had set up the meeting for that purpose. Although the State argued that it had a legitimate reason to record the conversations—the proposed killing of a State’s witness—the Court stated that the officers had a second purpose: the continued investigation of the theft charges. Note, however, that the Court clearly stated that the defendant’s incriminating statements about the proposed murder would be admissible at trial because he did not have a Sixth Amendment right to counsel when he made statements about the uncharged crime of solicitation to commit murder.
The United States Supreme Court ruled that the defendant’s Sixth Amendment right to counsel, which existed because he had been arraigned before a judge and committed to jail, was violated by the detective’s deliberate attempt during the trip to elicit information from him in the absence of counsel. The Court noted that although the defendant could have waived his right to counsel without notice to his lawyer, the State failed to satisfy its heavy burden of showing a waiver of counsel under the facts of this case.
Procedures to identify a defendant may be used under several circumstances, including (1) after a defendant’s arrest; (2) after a defendant has consented to an identification procedure, even if the defendant has not been arrested; (3) after a brief detention with reasonable suspicion, limited to an identification at or near the scene of the stop; and (4) after the defendant has been served with a nontestimonial identification order. Nontestimonial identification orders are discussed in Chapter 4. It is worth repeating here that an officer may use a nontestimonial identification order even when the officer is not legally required to do so—such as when a defendant has been arrested and has been released from custody. However, if an arrestee is in custody, a nontestimonial identification order may not be used. In such a case, an officer should seek a court order that directs a person to appear in a lineup if the person will not consent to participate.
Procedures for a witness’s identification of a defendant must meet certain legal requirements if the evidence of the identification procedure and the witness’s later identification of the defendant are to be admissible in court. Officers must comply with constitutional and, in some cases, statutory provisions, as follows:
Three identification procedures are discussed below. A live lineup is when a witness to a crime views in person a number of people together in an attempt to identify the offender. A showup is when a witness views just one person. A photo lineup is when a witness attempts to identify the perpetrator of a crime by viewing photographs of possible suspects.
Occasionally, officers may use a fourth procedure that involves showing a witness a single photograph of a suspect. For example, an officer may show a photograph of a suspect to an informant after a controlled buy, asking “Is this the person from whom you purchased drugs?” Such a procedure, which could be described as a photo showup, will normally be deemed “impermissibly suggestive” by a court and therefore likely should be avoided, at least unless the suspect is someone the informant knows well. However, the resulting identification is only subject to suppression if the court determines that the procedure caused a “substantial likelihood of irreparable misidentification,” which depends on the court’s analysis of a variety of factors discussed later in this chapter. North Carolina’s statutory provisions concerning showups may also prohibit the single-photo procedure just discussed.
Officers must remember that they may not conduct an identification procedure involving a juvenile, including a live lineup, without a nontestimonial identification order. However, the North Carolina Supreme Court has ruled that officers may conduct a showup involving a juvenile suspect shortly after the commission of a crime without a nontestimonial identification order. The court upheld a showup between the victim of a housebreaking and two juvenile suspects that occurred about an hour after the crime had been committed. The court ruled that the showup did not violate constitutional due process because the victim’s identification was sufficiently reliable—it was based on her observation of the suspects running from her house and her later identification of them at the crime scene. Note that an officer must photograph (a nontestimonial identification order is not required) a juvenile suspect who is 10 years of age or older at the time and place of a showup if the juvenile is reported to have committed a nondivertible offense under G.S. 7B-1701 or common law robbery. Further, G.S. 15A-284.52(c1)(4) sets out duties concerning the retention or disposal of any photos of juveniles and who may examine the photos and under what conditions.
Courts use complex tests to determine the admissibility of evidence under the Due Process Clause concerning (1) an out-of-court identification procedure, including a witness’s identification of the defendant during that procedure, and (2) a witness’s later identification of a defendant in court. These tests are discussed in the accompanying note. Essentially, however, they require various factors to be considered in determining whether a witness’s identification is reliable. To avoid a court ruling that evidence gathered in an identification procedure is inadmissible, officers should conduct the procedure in a manner that does not suggest to the witness who should be identified as the offender. Complying with North Carolina statutory requirements, discussed later in this chapter under “North Carolina Statutory Procedures for Live Lineups and Photo Lineups,” will almost always satisfy the Due Process Clause as well.
Presenting only one person to a witness for possible identification is a suggestive identification procedure that normally should be avoided. However, a showup is not always considered unnecessarily suggestive if it is used in an emergency or soon after the crime was committed. For example, a showup is permissible when (1) a witness is in the hospital and an immediate identification is needed or (2) the crime was committed only a short time ago and an immediate identification is justified by the need to solve a crime quickly and to release possibly innocent suspects. The use of a single photograph to identify a suspect is discussed above. North Carolina statutory standards for showups, which are additional to Due Process Clause requirements, are discussed later in this chapter under “North Carolina Statutory Procedures for Live Lineups and Photo Lineups.”
Although evidence obtained in showups and later in-court identifications has been ruled admissible at trial under circumstances other than these, officers should consider conducting a lineup or photo lineup to decrease the risk that evidence will be ruled inadmissible.
The United States Supreme Court has ruled that a defendant has a Sixth Amendment right to the presence of counsel when the defendant personally appears in a lineup or showup after the right to counsel has attached (begun). A lawyer’s basic role is to observe the identification procedure so that he or she may cross-examine witnesses and officers at trial about the procedure and any identifications made there.
The United States Supreme Court has ruled that the Sixth Amendment right to counsel attaches (begins) at the initial appearance after arrest that is conducted by a judicial official (in North Carolina, usually a magistrate) or when an indictment or information has been filed, whichever occurs first in a particular case. The initial appearance before a judicial official after arrest and the issuance of an indictment or information are triggering events; when they occur, the State is considered to have committed itself to prosecute.
The fact that a defendant has hired a lawyer does not, by itself, necessarily mean that the defendant has the Sixth Amendment protections of the right to the presence of counsel. The determining factor is still whether a critical stage of a prosecution is taking place at or after the time when the Sixth Amendment right to counsel has begun.
The time when the right to counsel has attached (begun) must be determined for each criminal charge. For example, even though a defendant has a Sixth Amendment right to counsel for one crime, if the identification procedure involves another crime for which the right to counsel has not begun, then the defendant has no Sixth Amendment right to the presence of counsel at an identification procedure for the unrelated crime.
A defendant does not have a Sixth Amendment right to the presence of counsel or the right to be present when a witness attempts to identify an offender from photographs at a photo lineup, even if the procedure is conducted after the right to counsel has attached (begun), because a photo lineup is not a critical stage of a prosecution when the assistance of counsel is constitutionally necessary. Of course, a photo lineup must still be conducted in a nonsuggestive manner, as discussed above under “Nonsuggestiveness of the Identification Procedure under Due Process Clause” for an in-person lineup, and must follow North Carolina statutory procedures, as discussed below under “North Carolina Statutory Procedures for Live Lineups and Photo Lineups.”
A defendant may waive the Sixth Amendment right to counsel at a lineup or showup (assuming the right to counsel exists) orally or in writing. The State must prove that the defendant did so knowingly and voluntarily. An officer’s request for a waiver of counsel might include the following statements:
Proving that a defendant waived the right to counsel sometimes may be difficult. Although an oral waiver can be legally sufficient, a written statement may be more helpful in proving the waiver’s validity.
A defendant does not have a Fifth Amendment right to refuse to participate in a lineup, to speak the words allegedly said by the offender during the crime at issue, or to submit to other identification procedures because the Fifth Amendment protects a person only from being compelled to give testimonial evidence. (The Fifth Amendment also does not protect a person from having to give fingerprints, handwriting samples, voice samples, blood samples, and the like.)
If a defendant refuses to participate in a lineup, officers may consider several alternatives:
The fact that the defendant refused to participate in an identification or other procedure—whether it is a lineup, procurement of a blood sample, or the like—is admissible at trial.
Under some circumstances, a defendant whose appearance has changed from the time of arrest or commission of the crime to the time of the identification procedure may be required to alter his or her appearance—for example, a male defendant may be required to wear a false beard or to shave his own beard.
G.S. 15A-284.52 requires law enforcement officers to follow certain procedures when conducting lineups and showups.
The term “showup” is defined as a procedure in which an eyewitness is presented with a single live suspect to determine whether the eyewitness is able to identify the perpetrator of a crime. It requires all officers who conduct a showup to meet all of the following requirements:
The North Carolina Criminal Justice Education and Training Standards Commission, pursuant to G.S. 15A-284.52(c2), developed a policy concerning standard procedures to conduct showups. The policy is accessible at ncdoj.gov/law-enforcement-training/criminal-justice/, under the “Forms & Publications” tile, under the “Publications” head, and posted at the link entitled “Eyewitness Lineups (adopted 5.15.20).”
G.S. 15A-284.52 sets forth the remedies for a violation of its provisions. First, failure to comply with any of the statutory requirements “shall be considered by the court in adjudicating motions to suppress eyewitness identification.” Thus, the court must take a violation into account, but a violation does not necessarily require suppression. It appears that the court is to consider whether a violation constitutes a substantial statutory violation, requiring suppression under G.S. 15A-974. The court also may consider whether a failure to follow the specified procedures affects the reliability of an identification, requiring suppression under the Due Process Clause’s totality-of-circumstances test. The statute does not explicitly address the question, but presumably the court also may consider whether a failure to follow the lineup or showup requirements tainted a subsequent identification, rendering that identification inadmissible.
Second, the failure to comply with any statutory requirement is admissible at trial in support of any claim of eyewitness misidentification as long as the evidence is otherwise admissible. Thus, as part of the case at trial, a defendant may offer evidence of a failure to follow the requirements to show that an eyewitness’s identification is unreliable.
Third, when evidence of compliance or noncompliance has been presented at trial, the jury must be instructed that it may consider credible evidence of compliance or noncompliance to determine the reliability of an eyewitness identification. This provision suggests that, in support of an eyewitness identification, the State may present evidence at trial that it complied with the eyewitness identification procedures (if the evidence is otherwise admissible under the Confrontation Clause and the North Carolina Rules of Evidence).
Investigating and detecting some kinds of crimes—especially those with no direct victims, such as drug and liquor offenses—often require using undercover law enforcement officers and informants who associate with defendants without revealing that they are working for or on behalf of a law enforcement agency. Officers need to understand some of the legal issues involved with undercover work and informants.
The United States Supreme Court has recognized that undercover officers and informants are necessary to investigate and detect crimes, but it has had to reconcile that need with the Fourth Amendment right to privacy.
The United States Supreme Court has ruled that a defendant does not have a reasonable expectation of privacy under the Fourth Amendment when the defendant invites or permits an entry into his or her home by an undercover officer or an informant acting under an officer’s direction to transact illegal business, such as selling drugs. Any evidence discovered or observations made during these activities are admissible at trial.
The Court also has ruled that an undercover officer or informant (with the informant’s consent) may be wired so that conversations with the defendant can be recorded and transmitted. A defendant has no constitutional protection in a misplaced belief that a person to whom the defendant confides wrongdoing will not reveal it—subject to the Fifth and Sixth Amendment limitations discussed immediately below.
There are, of course, Fourth Amendment limitations on actions by undercover officers or informants acting under their directions. For example, officers and informants may not obtain entry into a home by misrepresenting their identities and then search and seize items, without the defendant’s consent, throughout the home and without a search warrant or other appropriate justification under the Fourth Amendment.
If a defendant is not in custody and does not have a Sixth Amendment right to counsel, an undercover officer or an informant acting at an officer’s direction may converse with the defendant without violating the defendant’s Fifth Amendment right against compelled self-incrimination.
The second element is often stated another way: a defendant who was predisposed to commit the charged crime cannot successfully prove the entrapment defense. Undercover officers or an informant acting at their direction may give the defendant an opportunity to commit a crime and may even participate with the defendant in committing the crime, but the defendant has not been entrapped if the defendant was predisposed to commit the crime. Thus, undercover officers may ask for and offer to buy drugs or stolen goods from a defendant, but they do not commit entrapment unless they induce or persuade the defendant to do so under circumstances in which the defendant had no prior criminal intent to commit these crimes.
Entrapment is a complete defense to a crime, but the defendant must prove this defense to a jury’s satisfaction at trial. A defendant may not present an entrapment defense while denying that he or she committed the acts that constitute the charged crime.
A major problem with using informants is that their identities often must be kept secret so that they may be used again and are safe from retaliation. There are two common circumstances in which a defendant may try to have a confidential informant’s identity revealed:
North Carolina law provides that when a defendant makes a motion to suppress evidence that contests the truthfulness of an officer’s testimony about probable cause and the testimony includes information furnished by a confidential informant, the defendant is entitled to be informed of the informant’s identity unless
Corroboration means that there must be some evidence—other than the word of the officer who is testifying about probable cause—that the informant actually exists. It does not mean that the truth of the informant’s information must be corroborated. Most frequently, evidence of corroboration comes from the testimony of a second officer who knows the informant. For example, the second officer may have talked with the informant before the suppression hearing to determine that the informant in fact was the person who gave the officer the information that led to a warrantless search, or the second officer may have listened to the original conversation between the informant and the officer who used the informant’s information.
A defendant generally is entitled to know the identity of a confidential informant if the informant directly participated in the offense being tried (for example, by actually buying the drugs or watching an undercover officer buy the drugs) or if the informant is a material witness to the facts about the defendant’s guilt or innocence. The defendant has the burden of showing the need to know the informant’s identity.
On the other hand, a defendant generally is not entitled to know an informant’s identity when
Chapter 5 Appendix: Case Summaries
Part I. Interrogation and Confessions
Voluntariness of the Defendant’s Statement
(This topic is discussed in the chapter text under “Voluntariness of the Defendant’s Statement.”)
Generally
United States Supreme Court
Arizona v. Fulminante, 499 U.S. 279 (1991). The inmate-defendant confessed to a fellow inmate, a government agent, about a murder he committed. The defendant confessed because the government agent had offered to protect the defendant from physical attacks from other inmates in return for the confession. The Court ruled, based on these and other facts, that the totality of circumstances showed that the confession was involuntary because a credible threat of physical violence motivated the defendant to confess. However, the Court rejected statements in Bram v. United States, 168 U.S. 532 (1897), that a confession may not be obtained by any direct or implied promises, however slight, or by the exertion of any improper influence. See also United States v. McCullah, 76 F.3d 1087 (10th Cir. 1996) (similar ruling to Fulminante).
Colorado v. Connelly, 479 U.S. 157 (1986). An apparently mentally ill defendant turned himself in to a law enforcement officer and confessed to a murder. The Court ruled that coercive law enforcement activity is a necessary predicate to a finding that a confession is involuntary under the Due Process Clause. The fact that the defendant’s mental condition may have motivated him to confess in this case, absent law enforcement wrongdoing, does not make the confession involuntary. See also Snethen v. Nix, 885 F.2d 456 (8th Cir. 1989) (mother’s prodding of son to confess, without involvement of law enforcement officers, was not a constitutional violation). But see United States v. D.F., 115 F.3d 413 (7th Cir. 1996) (county mental-health workers, who believed that prosecution of juvenile patient was one of their roles, violated due process by eliciting involuntary confession).
Mincey v. Arizona, 437 U.S. 385 (1978). A defendant’s involuntary statements may not be used in any way at trial (for example, for impeachment, as well as during the State’s case in chief). The Court ruled that the defendant’s statements here were involuntarily made when a detective questioned him in the hospital. The defendant, under arrest for the murder of a policeman, was in the hospital’s emergency room because he had been shot and seriously wounded. He had tubes in his throat and had to answer questions by writing on pieces of paper. Although he asked repeatedly that interrogation stop until he could obtain a lawyer, the detective continued to question him. The defendant complained several times that he was confused or unable to think clearly, but the detective stopped his interrogation only during intervals when the defendant lost consciousness or received medical treatment.
The Court noted that the defendant’s statements resulted from virtually continuous questioning of a seriously and painfully wounded man on the edge of consciousness. Voluntariness requires a careful evaluation of all the circumstances of an interrogation. The Court ruled that the defendant’s statements were involuntary; they were not “the product of his free and rational choice.” Id. at 401 (quotation marks, citations omitted). Compare with United States v. Martin, 781 F.2d 671 (9th Cir. 1985) (medicated hospital patient was sufficiently rational to make a voluntary statement).
Rogers v. Richmond, 365 U.S. 534 (1961). The Due Process Clause of the Fourteenth Amendment prohibits the introduction into evidence of a confession that is involuntary—that is, the product of coercion, either physical or psychological. The probable truthfulness or falsity of a confession may not be considered in determining whether it was voluntary. Instead, the question is whether law enforcement officers’ behavior overcame a defendant’s will to resist and brought about a confession that was not freely self-determined. For a discussion of Supreme Court cases on voluntariness, see Schneckloth v. Bustamonte, 412 U.S. 218 (1973).
North Carolina Supreme Court
State v. Johnson, 371 N.C. 870 (2018). The court ruled that the defendant’s statements to officers were voluntary. The defendant voluntarily met with detectives at the police station in connection with a robbery and murder. He was questioned in an interview room for just under five hours before being placed under arrest and warned of his Miranda rights. After being advised of his rights, the defendant signed a written waiver of those rights and made inculpatory statements. He was charged with first-degree felony murder. At trial, he sought to suppress his statements to officers, arguing that he was subjected to custodial interrogation before being informed of his Miranda rights and that his inculpatory statements were involuntarily made under the Due Process Clause in response to improper statements by detectives inducing a hope that his confession would benefit him. The trial court denied his motion and he was convicted. The court ruled that (1) the court of appeals erred in condensing the Miranda and voluntariness inquiries into one; (2) the defendant did not preserve the argument that officers employed the “question first, warn later” technique to obtain his confession in violation of Miranda and Missouri v. Seibert, 542 U.S. 600 (2004); and (3) the trial court’s conclusion that the Miranda requirements were met was adequately supported by its findings of fact, as was its conclusion that the defendant’s statements to officers were voluntarily made. The court stated that the trial court’s findings of fact were supported by sufficient competent evidence and supported the conclusion that, under the totality of circumstances, the defendant was not coerced or induced by hope or fear into giving his confession.
State v. Wallace, 351 N.C. 481 (2000). The court ruled that an officer’s promise to allow the defendant to see his girlfriend and daughter did not result in an involuntary confession. The court noted that the defendant made the request, and the officers did not use the request to induce his confession.
State v. Chapman, 343 N.C. 495 (1996). On August 23, 1993, about 9:30 a.m., the defendant was arrested at a bank for attempting to cash a forged check. He waived his Miranda rights and admitted that he had attempted to cash a check that he had forged after taking it in a robbery. Officers took the defendant to a school to search for a purse that had been taken in the robbery. They then returned the defendant to the police station, where he confessed to forgery and uttering charges. A detective procured arrest warrants for these charges at 12:15 p.m. and served them on the defendant. The defendant then was questioned by another detective who was investigating the robbery in which the checks were taken, and the defendant confessed to the robbery at 1:27 p.m. Officers prepared an arrest warrant to charge the defendant for the robbery, but it was not presented to the magistrate then.
The defendant then was interviewed by yet another detective about a robbery and murder not related to the crimes discussed previously. The detective put nine photos of the murder victim on the walls of the interrogation room and one photo of the victim on the floor directly in front of the chair in which the defendant sat during the interrogation. Thus, the defendant saw a photo of the victim in every direction he turned. During the interview, the detective falsely implied to the defendant that a note found next to the victim’s body had been the subject of handwriting analysis that showed it was the defendant’s handwriting and that the defendant’s fingerprints were on the note. The defendant confessed to the murder at about 7:05 p.m. and was taken to the magistrate at about 8:00 p.m.
The court ruled that the defendant’s confession was not involuntary. The placement of the photos did not cause his free will to be overcome. Relying on State v. Jackson, 308 N.C. 549 (1983), the court stated that the detective’s deceit about the defendant’s handwriting and fingerprints on the note did not require the trial judge to find that the confession was not of the defendant’s own free will, that it was the product of fear or hope of reward, or that the deceit was calculated to produce an untrue statement.
State v. McCullers, 341 N.C. 19 (1995). Officers were investigating a murder in which several people beat, killed, and robbed the victim. The defendant, who was 18 years old and was working toward his GED, agreed to come to the police station for questioning. He was given his Miranda warnings and waived them. The defendant was alert and not under the influence of drugs or alcohol. One officer told the defendant that it would be better for the defendant if he said that he did not mean to kill the man than for him to keep denying that he did it. The officer also swore at the defendant on two occasions. Two other officers then took a statement from the defendant, who stated that no one had threatened him or made him say anything he did not want to say.
The court, distinguishing State v. Pruitt, 286 N.C. 442 (1975), State v. Fuqua, 269 N.C. 223 (1967), and State v. Stevenson, 212 N.C. 648 (1937), and relying on State v. Smith, 328 N.C. 99 (1991), and State v. Jackson, 308 N.C. 549 (1983), upheld the trial judge’s ruling that the defendant’s confession was voluntary. The court noted that the officer did not accuse the defendant of lying but, rather, informed him of the crime and urged him to tell the truth and think about what would be better for him. The court also noted that the defendant’s contention that he was intimidated or coerced by the officer’s profanity was not persuasive in light of the defendant’s own use of profanity during the interrogation. Under the totality of circumstances, the officer’s isolated statements did not support the defendant’s contention that his statement was made involuntarily based on fear or hope.
State v. Wilson, 322 N.C. 91 (1988). An officer arrested the defendant, properly gave him Miranda warnings and obtained a waiver, and then questioned the defendant about an alleged rape of a young girl. After the defendant answered “yes” to the officer’s question as to whether he had sexually assaulted the girl, the officer asked the defendant to look into the officer’s eyes and then said, “You’re going to have to tell us what happened.” Id. at 93. The defendant made further incriminating statements. The court ruled, based on the totality of circumstances surrounding the defendant’s statements, that the confession was voluntarily made. The officer did not frighten the defendant, overcome his will, or promise him anything as a reward for giving a statement.
State v. Perdue, 320 N.C. 51 (1987). Although the defendant took a tranquilizer before she confessed to the murder of her infant child, her confession was voluntary because her will was not overborne by the tranquilizer.
State v. Richardson, 316 N.C. 594 (1986). Promises or other statements indicating to a defendant that the defendant will receive some benefit if he or she confesses do not make a confession involuntary when they are made in response to a defendant’s solicitation. Even assuming that the detective here offered to testify about the defendant’s cooperation before the defendant asked what would happen if he cooperated, the defendant’s confession was not involuntary because he had considerable experience with the criminal justice system and was clearly engaged in bargaining with Tennessee authorities to obtain leniency and to avoid prosecution. See also State v. Bailey, 145 N.C. App. 13 (2001) (similar ruling).
State v. Corley, 310 N.C. 40 (1984). In determining whether a defendant’s statement was voluntarily and understandingly made, a court must consider the totality of the circumstances and may not rely on any one circumstance by itself or in isolation. The court here rejected an absolute rule that would automatically require a finding that a confession was involuntary when an officer told a defendant that “things would be a lot easier” on him if he “went ahead and told the truth” or harder for him if he did not. Id. at 52. It ruled, based on the totality of circumstances, that the State had proved by a preponderance of evidence that the defendant’s statement was voluntarily made without any suggestion, hope, or fear resulting from the officers’ conduct—despite the officer’s statement quoted above. See the court’s discussion and citation of prior decisions, including State v. Pruitt, 286 N.C. 442, 452 (1975) (defendant’s confession was involuntary when officers repeatedly told him that they knew he was lying, that the officers did not want to “fool around,” and that “it would simply be harder on him if he didn’t go ahead and cooperate”; also, other circumstances showed that the officers frightened the defendant and overcame his will). Cases that have applied the Corley test include State v. Bone, 354 N.C. 1 (2001); State v. Smith, 328 N.C. 99 (1991); State v. Thomas, 310 N.C. 369 (1984); State v. Williams, 67 N.C. App. 144 (1984); State v. Parrish, 73 N.C. App. 662 (1985); and State v. Durham, 74 N.C. App. 121 (1985). Other cases upholding confessions as voluntary are State v. Branch, 306 N.C. 101 (1982), State v. Edwards, 78 N.C. App. 605 (1985), and State v. Stephenson, 144 N.C. App. 465 (2001).
State v. Chamberlain, 307 N.C. 130 (1982). Officers may truthfully tell a defendant during interrogation about the evidence they have against the defendant. Explaining that information does not, by itself, make a later confession involuntary. See also State v. Booker, 306 N.C. 302 (1982), later appeal, 309 N.C. 446 (1983).
State v. Schneider, 306 N.C. 351 (1982). An officer’s failure to advise a defendant during an interrogation of the charge about which the defendant is being questioned does not make the confession involuntary.
North Carolina Court of Appeals
State v. Flood, 237 N.C. App. 287 (2014). In a child sexual-assault case, the court ruled that the trial court erred by finding that the defendant’s statements during an interview were made involuntarily. Although the court found that an officer made improper promises to the defendant, it ruled, based on the totality of the circumstances, that the statements were voluntarily made. Regarding the improper promises, Agent Oaks suggested to the defendant during the interview that she would work with and help him if he confessed and that she “would recommend . . . that [the defendant] get treatment” instead of jail time. Id. at 296. She also asserted that Detective Schwab “can ask for, you know, leniency, give you this, do this. He can ask the District Attorney’s Office for certain things. It’s totally up to them [what] they do with that but they’re going to look for recommendations[.]” Id. Oaks told the defendant that if he “admit[s] to what happened here,” Schwab is “going to probably talk to the District Attorney and say, ‘hey, this is my recommendation. Hey, this guy was honest with us. This guy has done everything we’ve asked him to do. What can we do?’ and talk about it.” Id. Because it was clear that the purpose of Oaks’s statements “was to improperly induce in Defendant a belief that he might obtain some kind of relief from criminal charges if he confessed,” they were improper promises. Id. at 297. However, viewing the totality of the circumstances (the length of the interview, the defendant’s extensive experience with the criminal justice system given his prior service as a law enforcement officer, etc.), the court found the defendant’s statements to have been voluntarily made.
State v. Davis, 237 N.C. App. 22 (2014). The court ruled that the trial court did not err by finding that the defendant’s statements were given freely and voluntarily. The court rejected the defendant’s argument that the statements were coerced by fear and hope. The court ruled that an officer’s promise that the defendant would “walk out” of the interview regardless of what she said did not render her confession involuntary. Without more, the officer’s statement could not have led the defendant to believe that she would be treated more favorably if she confessed to her involvement in her child’s disappearance and death. Next, the court rejected—as a factual matter—the defendant’s argument that officers lied about information provided to them by a third party. Finally, the court rejected the defendant’s argument that her mental state rendered her confession involuntary and coerced, when the evidence indicated that the defendant understood what was happening, was coherent, and did not appear to be impaired.
State v. Martin, 228 N.C. App. 687 (2013). The court ruled that the defendant’s confession was involuntary. The defendant first made a confession before Miranda warnings were given. The officer then gave the defendant Miranda warnings and had the defendant repeat his confession. The trial court suppressed the defendant’s pre-Miranda confession but ruled that the post-Miranda confession was admissible at trial. The appeals court disagreed, concluding that the circumstances and tactics used by the officer to induce the first confession must be imputed to the post-Miranda confession. The court found that the first confession was involuntary, noting that the defendant was in custody; that the officer made misrepresentations and/or deceptive statements, as well as promises to induce the confession; and that the defendant may have had an impaired mental condition.
State v. Rollins, 226 N.C. App. 129 (2013). The court of appeals ruled that the trial court did not err by finding that the defendant’s statements to his wife regarding his participation in a murder were voluntary. The defendant’s wife spoke with him five times while he was in prison (on charges not connected to the murder) and while wearing a recording device provided by the police. While the wife did not threaten the defendant, she did make up evidence that she claimed law enforcement had recovered and told the defendant that officers suspected that she was involved in the murder. In response, the defendant made incriminating statements in which he corrected the wife’s lies concerning the evidence and admitted details of the murder. The court rejected the defendant’s argument that his statements were involuntary because of his wife’s deception and her emotional appeals to him based on this deception.
State v. Graham, 223 N.C. App. 150 (2012). The court ruled in this child sexual-abuse trial that the defendant’s confession was not involuntary. After briefly speaking to the defendant at his home about an allegation of child sexual abuse against him, an officer asked him to come to the police station to answer questions. The court rejected the defendant’s argument that his subsequent confession was involuntary because he was given a false hope of leniency if he were to confess and because he was told that additional charges would stem from continued investigation of other children. The officers’ offers to “help” the defendant “deal with” his “problem” did not constitute a direct promise that the defendant would receive a lesser charge—or even no charge—should he confess. The court also rejected the defendant’s argument that the confession was involuntary because one of the officers relied on his friendship with the defendant and their shared racial background and because another officer asked questions about whether the defendant went to church or believed in God. Finally, the court rejected the defendant’s argument that his confession was involuntarily obtained through deception.
State v. Cornelius, 219 N.C. App. 329 (2012). The court of appeals ruled that the trial court did not err by denying the defendant’s motion to suppress three recorded statements he made while he was in the hospital. The defendant had argued that medication he received rendered the statements involuntary. Based on testimony from the detective who conducted the interview, hospital records, and the recorded statements, the trial court made extensive findings that the defendant was alert and oriented. Those findings supported the trial court’s conclusion that the statements were voluntary.
State v. Cooper, 219 N.C. App. 390 (2012). The court of appeals rejected the defendant’s argument that his confession was involuntary because it was obtained through police threats. Although the defendant argued that the police threatened to imprison his father unless he confessed, the trial court’s findings of fact were more than sufficient to support its conclusion that the confession was not coerced. The trial court found, in part, that the defendant never was promised or told that his father would benefit from any statements that he himself made.
State v. Bordeaux, 207 N.C. App. 645 (2010). The court ruled that the trial court properly suppressed the defendant’s confession on the grounds that it was involuntary. Although the defendant received Miranda warnings, interviewing officers during custodial interrogation suggested that the defendant was involved in an ongoing murder investigation, knowing that to be untrue. The officers promised to testify on the defendant’s behalf, and these promises aroused in the defendant a hope of more-lenient punishment. The officers also promised that if the defendant confessed, he might be able to pursue his plans to attend community college.
State v. Clodfelter, 203 N.C. App. 60 (2010). The court ruled, distinguishing State v. Morrell, 108 N.C. App. 465 (1993), and State v. Hauser, 115 N.C. App. 431 (1994), that the defendant’s mother was not acting as an agent of law enforcement and that it was therefore not required that Miranda warnings be given to the defendant. The mother testified that all the officers asked her to do, and all she in fact did do, was ask her son to tell the truth about his involvement in the murder.
State v. Shelly, 181 N.C. App. 196 (2007). The court ruled that the defendant’s confession to committing a murder was not involuntary based on an officer’s statements to the defendant. The officer told the defendant that a person who cooperates, shows remorse, is honest, and has no criminal background has the best chance of obtaining leniency because he cooperated. The court upheld the trial judge’s findings that no improper promises were made to the defendant. The officer did not promise the defendant any different or preferential treatment as a result of the defendant’s cooperation. The officer did not create a hope of leniency that induced the defendant to confess to the murder.
State v. Houston, 169 N.C. App. 367 (2005). Officers arrested the defendant in the parking lot of his apartment building, did not give him Miranda warnings, and took him to an apartment in which he had a bedroom and bathroom and where he consented to a search, including a search of a safe to which the defendant gave officers the combination. Cocaine, cash, and a handgun were found in the safe. The officers transported the defendant to the police station, where they advised him of his Miranda rights and took a statement. None of the defendant’s pre–Miranda warning statements were admitted at the defendant’s trial. However, the evidence in the safe was admitted at trial, as were the defendant’s statements at the police station. The court ruled that the defendant’s statements at the police station were not involuntary. The court noted that the officers made general statements that they would advise the district attorney and judge of the defendant’s cooperation and did not make any representations concerning what, if any, benefit the defendant’s cooperation would bring.
State v. Bailey, 163 N.C. App. 84 (2004). The court ruled that the defendant was not coerced into giving a confession. The court noted that although the defendant’s statements were taken over a six-hour time span, during which the defendant was secured to a chair by a single handcuff, the evidence also showed that law enforcement officers provided the defendant with food and drink, asked about his comfort at regular intervals, and allowed him several bathroom breaks.
State v. Thompson, 149 N.C. App. 276 (2002). The defendant voluntarily came to the police station and spoke with a detective about a robbery. The court ruled that the detective’s repeated assertions that the defendant would not be arrested that day regardless of what he said was not an improper inducement that led the defendant to confess to the robbery. The court noted that the defendant was familiar with the criminal justice system (he had seven prior convictions) and had doubtless been questioned often by law enforcement officers before the questioning that occurred in this case.
State v. Cabe, 136 N.C. App. 510 (2000). The defendant confessed to law enforcement officers about his sexual assault of his son. The court ruled that the officers did not make any improper promises to the defendant to induce an involuntary confession. The defendant was not under arrest during the questioning, and he was advised of and knowingly waived his constitutional rights. The interview lasted about forty-five minutes, and the defendant was allowed to go home afterwards. Any of the officers’ statements concerning the defendant’s employment, possession of his car, and right to visit his son were in response to specific questions asked by the defendant. For example, an officer’s statement that she could not see why the defendant would lose his job cannot be construed as a promise to let him keep his job if he cooperated with the officers. Further, any improper promises that may have been made concerned collateral matters, not the sexual assault.
State v. Sturgill, 121 N.C. App. 629 (1996). Officers arrested the defendant for a felony breaking or entering and larceny. During custodial interrogation, a detective told the defendant that he would be charged with several other break-ins. The defendant then indicated that the only statement he wanted to make was that he did not commit any of the break-ins. The detective stopped the questioning and began to leave the interrogation room. The defendant then asked “what would be in it” for him if he provided information about the break-ins. The detective told him that he would not seek to indict him for habitual felon status. The defendant then confessed.
The court ruled that the detective’s statement about the charge of habitual felon status violated the defendant’s substantive due process rights (that is, the defendant detrimentally relied on the detective’s promise). The statement also violated the defendant’s statutory rights under G.S. 15A-1021, which bars improper pressure to induce a defendant to plead guilty, and G.S. 15A-974, the statutory exclusionary rule; thus, the confession was inadmissible at trial. [Author’s note: Legislation enacted in 2011 (S.L. 2011-6) added a good-faith exception to the application of G.S. 15A-974.]
State v. Annadale, 95 N.C. App. 734 (1989). An officer informed the defendant, who had been arrested for several armed robberies, that he had evidence linking the defendant’s girlfriend with the robberies. He told the defendant that he would discuss her case with the district attorney, although he advised the defendant that he had no authority to make any deals or bargains. The defendant later confessed. The court ruled that the fact that the defendant may have confessed with the hope of leniency for his girlfriend did not make his statement involuntary. The officer’s statement about the defendant’s girlfriend was not related to the defendant’s charge against him but involved only a collateral advantage.
State v. Moore, 94 N.C. App. 55 (1989). The defendant’s confession was not involuntarily obtained when officers confronted him with the evidence against him and told him that his previous statement was “a bunch of crap.”
State v. Blackman, 93 N.C. App. 207 (1989). The fact that officers ingratiated themselves with the defendant and presented themselves as his friends did not render his later confession involuntary because the officers did not force the defendant to submit to an ordeal traditionally associated with coercive interrogations. See also State v. Greene, 332 N.C. 565 (1992) (although officers told defendant that they were his only friends and would help him with any problems, they did not intimate that by confessing he would avoid prosecution or obtain a lesser sentence).
State v. Marshall, 92 N.C. App. 398 (1988). An officer’s alleged promise of a bond reduction if the defendant confessed was not related to the possible charge or punishment against him and, therefore, did not affect the admissibility of the confession at trial. See also State v. Booker, 306 N.C. 302 (1982), later appeal, 309 N.C. 446 (1983).
State v. Adams, 85 N.C. App. 200 (1987). A mentally ill defendant who initiated contact with an officer and confessed in a noncustodial setting had no federal or state grounds for having his confession excluded.
State v. Sings, 35 N.C. App. 1 (1978). Showing a defendant illegally seized evidence before the defendant confessed does not, by itself, make the confession involuntary. See also State v. McCloud, 276 N.C. 518 (1970). But see State v. Hall, 264 N.C. 559 (1965); State v. Silva, 304 N.C. 122 (1981).
Federal Appellate Courts
United States v. Braxton, 112 F.3d 777 (4th Cir. 1997) (en banc). The court ruled that, considering the totality of circumstances, an officer’s statement that the defendant could face five years in jail was not an implied promise and did not make the defendant’s confession involuntary. See also Rose v. Lee, 252 F.3d 676 (4th Cir. 2001) (officer’s comment that things would go easier on defendant if he told officers location of body did not make confession involuntary).
United States v. Walton, 10 F.3d 1024 (3d Cir. 1993). The court ruled, based on the totality of circumstances, that an officer’s promise to a defendant that what he told the officer would not be used against him coerced the defendant to give a statement. Thus, the defendant’s statement was involuntary and inadmissible at trial.
Use of Deception
NORTH CAROLINA SUPREME COURT
State v. Hardy, 339 N.C. 207 (1994). The court examined all the evidence surrounding the defendant’s confession to law enforcement officers and ruled that the confession was voluntary, even though one officer lied about a witness having identified the defendant and some of the officers’ statements could be interpreted as implicit promises or threats. The court concluded, citing State v. Jackson, 308 N.C. 549 (1983), that the defendant’s independent will was not overcome by mental or psychological coercion or pressure to induce a confession that he was not otherwise disposed to make. See also State v. Chapman, 343 N.C. 495 (1996), discussed above under “Voluntariness of the Defendant’s Statement,” “Generally,” “NORTH CAROLINA SUPREME COURT.”
State v. Jackson, 308 N.C. 549 (1983), later appeal, 317 N.C. 1 (1986). An officer’s use of deceptive methods or false statements during an interrogation does not, by itself, make a confession involuntary. The admissibility of a confession is determined by the totality of circumstances, one of which is whether an officer’s conduct was calculated to procure an untrue confession. See also Frazier v. Cupp, 394 U.S. 731 (1969); State v. Barnes, 154 N.C. App. 111 (2002); State v. Chambers, 92 N.C. App. 230 (1988).
NORTH CAROLINA COURT OF APPEALS
State v. Rollins, 226 N.C. App. 129 (2013). The court of appeals ruled that the trial court did not err by finding that the defendant’s statements to his wife regarding his participation in a murder were voluntary. The defendant’s wife spoke with him five times while he was in prison (on charges not connected to the murder) and while wearing a recording device provided by the police. While the wife did not threaten the defendant, she did make up evidence that she claimed law enforcement had recovered and told the defendant that officers suspected that she was involved in the murder. In response, the defendant made incriminating statements in which he corrected the wife’s lies concerning the evidence and admitted details of the murder. The court rejected the defendant’s argument that his statements were involuntary because of his wife’s deception and her emotional appeals to him based on this deception.
State v. Barnes, 154 N.C. App. 111 (2002). The defendant voluntarily came to the sheriff’s department to discuss an investigation against him concerning his alleged sexual assault of his daughter. The investigating officer falsely told the defendant that his daughter was pregnant. The court noted, citing State v. Jackson, 308 N.C. 549 (1983), that deception is only one factor in examining the totality of circumstances surrounding the voluntariness of a confession. The court stated that the defendant was not tricked about the nature of the crime or the possible punishment. The officer did not subject the defendant to threats of harm, rewards for a confession, or deprivation of freedom of action. There was not an oppressive environment during the officer’s questioning of the defendant. The court ruled that the confession was voluntary.
Mental Capacity to Confess
NORTH CAROLINA SUPREME COURT
State v. McKoy, 323 N.C. 1 (1988). The court ruled, based on the totality of circumstances, that the defendant gave a voluntary confession and properly waived his Miranda rights, even though he was mildly intoxicated, had subnormal mental capacity, and had been injured when arrested. See also State v. Allen, 322 N.C. 176 (1988); State v. Jones, 153 N.C. App. 358 (2002).
State v. Misenheimer, 304 N.C. 108 (1981). A defendant must have sufficient mental capacity to confess competently and voluntarily when officers question him or her. See also State v. Ross, 297 N.C. 137 (1979); State v. Thompson, 287 N.C. 303 (1975); State v. Spence, 36 N.C. App. 627 (1978).
Intoxication
NORTH CAROLINA SUPREME COURT
State v. McKoy, 323 N.C. 1 (1988). The court ruled that the defendant gave a voluntary confession and properly waived his Miranda rights, even though he was mildly intoxicated, had a subnormal mental capacity, and had been injured when arrested. The totality of circumstances supported the trial judge’s conclusion that the defendant knowingly, intelligently, and voluntarily waived his Miranda rights and that his statements were made freely, understandingly, and voluntarily.
State v. Oxendine, 303 N.C. 235 (1981). A defendant’s statement is admissible at trial unless the defendant was so intoxicated that the defendant was not conscious of the meaning of his or her words. See also State v. Parton, 303 N.C. 55 (1981).
Confession Made after an Involuntary Confession
NORTH CAROLINA SUPREME COURT
State v. Jones, 327 N.C. 439 (1990). The defendant was interrogated by officers for two hours beginning at 12:25 a.m., March 8, 1987. He was interrogated again for about one hour beginning at 4:00 a.m. on March 8, 1987, and for about one-half hour beginning at 8:15 a.m. the same morning. The State did not seek to introduce statements of the defendant from any of these interrogations. At 11:25 a.m. on March 9, 1987, the defendant was interrogated by officers who were not involved in the prior interrogations. The State was permitted to introduce the defendant’s statement from this interrogation, which the trial judge found not to have been unconstitutionally coerced.
The court, assuming that the defendant’s statements from the March 8, 1987, interrogations were unconstitutionally coerced, upheld the admissibility of the defendant’s statement from the March 9, 1987, interrogation because the coercion of the March 8, 1987, interrogations did not impermissibly taint the March 9 interrogation. [Author’s note: The court did not utilize the more-stringent tests imposed on the State in State v. Edwards, 284 N.C. 76 (1973), discussed immediately below, and State v. Silver, 286 N.C. 709 (1975), discussed within the Edwards writeup.] The court noted that the following intervening factors between the March 8 interrogations and the March 9 interrogation were sufficient to purge any taint left by the threats and promises of the March 8 interrogations: (1) two different officers conducted the last interrogation, which was held at a different site than the prior interrogations; (2) the defendant had twenty-six hours between the earlier interrogations and the last interrogation to reconsider his statements; and (3) the defendant, a person of average intelligence, was advised of his rights and knowingly and intelligently waived his rights at the March 9 interrogation. See also Leon v. Wainwright, 734 F.2d 770 (11th Cir. 1984) (the test is whether the coercion surrounding a defendant’s first statement had been sufficiently dissipated so that a second statement was voluntary); United States v. Daniel, 932 F.2d 522 (6th Cir. 1991) (similar ruling; court also analyzed United States Supreme Court rulings); United States v. Jenkins, 938 F.2d 934 (9th Cir. 1991); Holland v. McGinnis, 963 F.2d 1044 (7th Cir. 1992).
State v. Edwards, 284 N.C. 76 (1973). Officers obtained a confession two months after they took an involuntary confession. The court appeared to impose a requirement that the admissibility of the second confession depended on whether the defendant was told before he confessed again that the first confession was invalid and could not be used against him. See also State v. Silver, 286 N.C. 709 (1975) (State must disprove by clear and convincing evidence the “presumption” that imputes the same improper influence on the second confession that caused the first confession to be considered involuntary). [Author’s note: The tests set out in Edwards and Silver may now be supplanted by the test set out in State v. Jones, discussed and cited immediately above, which is the test used by federal courts.]
NORTH CAROLINA COURT OF APPEALS
State v. Martin, 228 N.C. App. 687 (2013). The court ruled that a defendant’s second, post-Miranda confession was involuntary. The defendant first made a confession to an officer before Miranda warnings were given. The officer then gave the defendant Miranda warnings and had the defendant repeat his confession. The trial court suppressed the defendant’s pre-Miranda confession but ruled that the post-Miranda confession was admissible at trial. The appeals court disagreed, concluding that the circumstances and tactics used by the officer to induce the first confession must be imputed to the post-Miranda confession. The court found the first confession involuntary, noting that the defendant was in custody, the officer made misrepresentations or deceptive statements as well as promises to induce the confession, and the defendant may have had an impaired mental condition.
Defendant’s Statements: Miranda Warnings and Waiver
(This topic is discussed in the chapter text under “The Miranda Rule and Additional Statutory Rights.”)
Generally
United States Supreme Court
Berghuis v. Thompkins, 560 U.S. 370 (2010). The Court ruled that the defendant impliedly waived his rights under Miranda v. Arizona, 384 U.S. 436 (1966).
Officers were investigating a murder. Before beginning a custodial interrogation, one of the officers presented the defendant with a Miranda form. The form included the four warnings required by Miranda (right to remain silent, use of statements in court, right to have lawyer present, right to have appointed lawyer if indigent) and an additional warning not required by Miranda: “You have the right to decide at any time before or during questioning to use your right to remain silent and your right to talk with a lawyer while you are being questioned.” Berghuis, 560 U.S. at 375. The officer asked the defendant to read the fifth warning aloud so that he could ensure that the defendant understood English, which he did. The officer then read the other four Miranda warnings aloud and asked the defendant to sign the form to demonstrate that he understood his rights. The defendant declined to sign the form. There was conflicting evidence as to whether the officer verbally confirmed that the defendant understood the rights listed on the form. The officer did not discuss a waiver of Miranda rights with the defendant or obtain one from him.
During the interrogation, the defendant never stated that he wanted to remain silent, that he did not want to talk with the officers, or that he wanted a lawyer. About two hours and forty-five minutes into the interrogation, during which the defendant was mostly silent, an officer asked the defendant, “Do you believe in God?” The defendant said “yes.” The officer asked, “Do you pray to God?” The defendant said “yes.” The officer then asked, “Do you pray to God to forgive you for shooting that boy down?” The defendant said “yes” and looked away. Id. at 376. The interview ended shortly thereafter. At trial, the defendant moved to suppress these statements. The issue before the United States Supreme Court was the admissibility of these statements under Miranda and later Miranda-related cases.
The Court noted that some language in Miranda could be read to indicate that a waiver of Miranda rights is difficult to establish absent an explicit written waiver or a formal, explicit oral statement. However, the Court discussed its rulings since Miranda, particularly North Carolina v. Butler, 441 U.S. 369, 371 (1979) (valid waiver when defendant read Miranda rights form, said he understood his rights, refused to sign waiver at bottom of form, but said, “I will talk to you but I am not signing any form”), indicating that its later decisions made clear that a waiver of Miranda rights may be implied through a defendant’s silence, coupled with an understanding of his or her rights and a course of conduct indicating waiver. The Court in effect disavowed the language in Miranda suggesting that it is difficult to establish a Miranda waiver without an explicit written waiver or a formal, explicit oral statement.
The Court concluded that if the prosecution shows that a defendant was given Miranda warnings and understood them, a defendant’s uncoerced statements establish an implied waiver of Miranda rights. A defendant’s explicit waiver need not precede custodial interrogation. Any waiver, explicit or implied, may be withdrawn by a defendant’s invocation at any time of the right to counsel or the right to remain silent. Turning to the case before it, the Court ruled that the defendant waived his right to remain silent and that his statements were admissible at trial. The Court found that there was no basis to conclude that the defendant did not understand his Miranda rights and that the defendant chose not to invoke or rely on those rights when he made his uncoerced statements.
Dickerson v. United States, 530 U.S. 428 (2000). The Court ruled that its ruling in Miranda v. Arizona, 384 U.S. 436 (1966), was constitutionally based and may not be modified by a legislative act, such as 18 U.S.C. § 3501. [Author’s note: The Court strongly indicated that the Dickerson ruling did not adversely affect its ruling in Oregon v. Elstad, 470 U.S. 298 (1985); see United States v. Sterling, 283 F.3d 216 (4th Cir. 2002); United States v. DeSumma, 272 F.3d 176 (3d Cir. 2001).]
Pennsylvania v. Muniz, 496 U.S. 582 (1990). An officer arrested the defendant for driving under the influence and took him to a booking center. The officer did not give Miranda warnings to the defendant. The officer asked the defendant booking questions, including the date of the defendant’s sixth birthday. The officer also had the defendant perform physical sobriety tests, and he asked the defendant to take a Breathalyzer test. All these events were videotaped and introduced into evidence at trial.
(1) The Court ruled that the defendant’s slurred speech in answering booking questions was not testimonial, was not protected by the Fifth Amendment, and thus was admissible at trial without the giving of Miranda warnings. (2) The Court ruled that the defendant’s incriminating answer (showing his mentally confused condition), “No, I don’t,” to the question, “When you turned six years old, do you remember what the date was?” was testimonial, protected by the Fifth Amendment, and therefore inadmissible in the absence of Miranda warnings. (3) A four-Justice plurality ruled that routine booking questions may be asked and answered without Miranda warnings if the questions are not designed to elicit incriminating statements (the questions in this case concerned the defendant’s name, address, height, weight, eye color, date of birth, and current age). (4) The Court ruled that the defendant’s voluntary utterances (including his questions to the officer and his slurred speech) when he performed the physical sobriety test and during preliminaries of the Breathalyzer testing were not the result of interrogation and therefore were admissible.
Illinois v. Perkins, 496 U.S. 292 (1990). Officers were investigating the defendant as a homicide suspect. While the defendant was in jail on unrelated charges, an officer—acting undercover—was admitted to jail as an inmate. The defendant stated during conversations with the officer that he committed the homicide. The defendant did not know that he was speaking to an officer. The Court ruled that the requirements of the Miranda ruling, which include giving Miranda warnings, did not apply to these facts. The Court stated that a “police-dominated atmosphere” and compulsion, which underlay the Miranda ruling, do not exist when an incarcerated person speaks voluntarily with someone he or she believes to be a fellow inmate. The Court also noted that the defendant’s Sixth Amendment right to counsel was not implicated in this case because the defendant had not yet been charged with the homicide when the undercover officer talked with him in jail. The Court did not discuss whether the officer’s conduct would have been permissible if the defendant had asserted his right to counsel under the Fifth Amendment for the unrelated charges for which he had been jailed.
Berkemer v. McCarty, 468 U.S. 420 (1984). The Miranda rule applies to all offenses, whether felonies or misdemeanors, for which a person is subject to custodial interrogation.
Miranda v. Arizona, 384 U.S. 436 (1966). The Court stated that it is necessary to establish procedures to protect a person’s right not to be compelled to incriminate himself or herself under the Fifth Amendment. It ruled that a person’s statements are not admissible at trial unless, before an officer begins custodial interrogation, the officer warns the person that (1) the person has a right to remain silent, (2) what the person says may be used in court against him or her, (3) the person has a right to have a lawyer present during interrogation, and (4) the person has a right to an appointed lawyer during interrogation if he or she cannot afford to hire one. Once the officer has given the person these warnings and the opportunity to exercise these rights, the person may knowingly and intelligently waive them and agree to answer questions or make a statement. If, at any time while the person is being questioned, the person expresses an unwillingness to go on with the questioning or asserts the right to counsel, the officer must stop the questioning.
North Carolina Supreme Court
State v. Leary, 344 N.C. 109 (1996). The court rejected the defendant’s argument that the North Carolina Constitution requires law enforcement officers to give Miranda-style warnings to defendants even though they are not in custody.
North Carolina Court of Appeals
State v. Quick, 226 N.C. App. 541 (2013). The court of appeals rejected the State’s argument that the defendant initiated contact with the police following his initial request for counsel and thus waived his right to counsel. After the defendant asserted his right to counsel, the police returned him to the interrogation room and again asked if he wanted counsel; he said yes. Then, on the way from the interrogation room back to the jail, a detective told the defendant that an attorney would not be able to help him and that he would be served with warrants regardless of whether an attorney was there. The police knew or should have known that telling the defendant that an attorney could not help him with the warrants would be reasonably likely to elicit an incriminating response. It was only after this statement by police that the defendant agreed to talk. Therefore, the court of appeals concluded, the defendant did not initiate the communication. The court also concluded that even if the defendant had initiated communication with police, his waiver was not knowing and intelligent. The trial court had found that the prosecution failed to meet its burden of showing that the defendant made a knowing and intelligent waiver, relying on the facts that the defendant was 18 years old and had limited experience with the criminal justice system. There was a period of time between 12:39 and 12:54 p.m. on the day the defendant was questioned when there was no evidence as to what occurred and no audio or video recording of the interview. The court found that the defendant’s age and inexperience, when combined with the circumstances of his interrogation, supported the trial court’s conclusion that the State failed to prove that the defendant’s waiver was knowing and intelligent.
State v. Cureton, 223 N.C. App. 274 (2012). The court ruled that the defendant knowingly and intelligently waived his right to counsel after being read his Miranda rights. The court rejected the defendant’s argument that the fact that he never signed a waiver-of-rights form had established that a valid waiver was not made. The court also rejected the defendant’s argument that he was incapable of knowingly and intelligently waiving his rights because his borderline mental capacity prevented him from fully understanding those rights. The court relied in part on a psychological evaluation diagnosing the defendant as malingering and finding him competent to stand trial.
State v. Hunter, 208 N.C. App. 506 (2010). The court rejected the defendant’s argument that due to being under the influence of cocaine, he did not knowingly, intelligently, and understandingly (1) waive his Miranda rights or (2) make a statement to the police. Because the defendant was not under the influence of any impairing substance and answered questions appropriately, the fact that he had ingested crack cocaine several hours earlier was not sufficient to invalidate the trial court’s finding that his statements were freely and voluntarily made.
At 11:40 p.m., unarmed agents woke the defendant in his cell and brought him to an interrogation room, where the defendant was not restrained. The defendant was responsive to instructions and was fully advised of his Miranda rights; he nodded affirmatively to each right, and at 11:46 p.m. he signed a Miranda rights form. When asked whether he was under the influence of any alcohol or drugs, the defendant indicated that he was not but that he had used crack cocaine at around 1:00 p.m. or 2:00 p.m. that day. He responded to questions appropriately. An agent compiled a written summary, which the defendant was given to read and to which he could make changes if desired. Both the defendant and the agent signed the document at around 2:41 a.m. The agents thanked the defendant for cooperating, and the defendant indicated that he was glad to “get all of this off [his] chest.” Id. at 513. Based on these facts, the defendant’s statements were free and voluntary; no promises were made to him, and he was not coerced in any way. He was knowledgeable of his circumstances and cognizant of the meaning of his words.
State v. Nguyen, 178 N.C. App. 447 (2006). The court ruled that the Miranda waiver by the Vietnamese-speaking defendant was understandingly, voluntarily, and knowingly made when a Vietnamese-speaking law enforcement officer acted as the translator for the interrogating law enforcement officer. There was no evidence that the officer-translator was deceitful or acted in an otherwise improper manner during his dealings with the defendant. The court rejected the defendant’s argument that the officer-translator was not a neutral translator because he was a law enforcement officer.
State v. Ortez, 178 N.C. App. 236 (2006). A law enforcement officer fluent in Spanish read the defendant his Miranda rights in Spanish from a preprinted Miranda rights and waiver form. The defendant signed the waiver form.
(1) The defendant on appeal challenged the adequacy of the Miranda warnings, specifically, the use of the words “corte de ley” for “court of law” and “interrogatorio” for “questioning.” The defendant also challenged the Spanish translation of the Miranda right to counsel for an indigent person. The court discussed these issues and ruled that the Miranda warnings given in Spanish reasonably conveyed to the defendant his Miranda rights and were therefore adequate. (2) The defendant’s testing showed that he had an IQ ranging from 55 to 77, classifying him as mildly mentally retarded to borderline intellectual or low-average functioning. The court noted that a defendant’s IQ alone does not mean that the defendant cannot make a voluntary, knowing, and intelligent waiver of his or her Miranda rights. The court discussed the facts in this case and ruled that the defendant’s waiver was valid based on the totality of circumstances.
In re Pittman, 149 N.C. App. 951 (2002). The court ruled, citing State v. Adams, 345 N.C. 745 (1997), and a legal treatise, that the Miranda ruling does not apply to a statement made to a law enforcement officer offered into evidence in a civil abuse and neglect proceeding. The Miranda ruling only applies to a statement offered into evidence in a criminal proceeding.
In re Phillips, 128 N.C. App. 732 (1998). An assistant school principal questioned a student about stolen school property. No law enforcement officer was involved with the questioning. The assistant principal was not required to give Miranda warnings before questioning the student.
State v. Morrell, 108 N.C. App. 465 (1993). The defendant was arrested on a federal charge of child abduction and was committed to the county jail. A social worker in the county child protective services unit identified herself and told the defendant that she was conducting an investigation of alleged sexual abuse and neglect of a boy with whom the defendant had had a relationship. The defendant confessed to the social worker. Two days later, a deputy sheriff talked with the defendant in the jail after giving her Miranda warnings and obtaining a proper waiver. The defendant again confessed.
Based on evidence that the social worker was working with the sheriff’s department on the case before interviewing the defendant in jail, the court ruled that the social worker was an agent of the State and thus was required to give Miranda warnings when that interview occurred. The court upheld the admissibility of the defendant’s confession to the deputy sheriff because the confession to the social worker was not coerced; see Oregon v. Elstad, 470 U.S. 298 (1985); State v. Barlow, 330 N.C. 133 (1991). [Author’s note: The court did not discuss Illinois v. Perkins, 496 U.S. 292 (1990). If the defendant did not know that the social worker was acting on behalf of the deputy sheriff or was a government official involved in investigating or reporting criminal offenses, then the ruling in Perkins may not have required the social worker to give Miranda warnings. However, one can argue that the facts in Morrell clearly establish that the defendant knew that the social worker was a government official and that her duties included the investigation or reporting of crimes. See Mathis v. United States, 391 U.S. 1 (1968); Cates v. State, 776 S.W.2d 170 (Tex. Crim. App. 1989); State v. Nason, 981 P.2d 866 (Wash. Ct. App. 1999).]
Federal Appellate Courts
Alexander v. Connecticut, 917 F.2d 747 (2d Cir. 1990). The defendant was in jail awaiting trial for arson. He had requested a lawyer for the arson charge at arraignment, and the court appointed a lawyer to represent him. The lawyer told officers that the defendant did not want to be questioned further without his lawyer present. The officers suspected that the defendant had committed a murder, for which the defendant had not been charged. A friend of the defendant, acting at the officers’ instigation, visited the defendant in jail and obtained incriminating statements that were later used in the defendant’s murder trial. Relying on Illinois v. Perkins, 496 U.S. 292 (1990), discussed above in this section under “UNITED STATES SUPREME COURT,” the court ruled that regardless of whether the defendant properly invoked his Fifth Amendment right to counsel, the officers did not violate that right because their conduct was not prohibited by the Miranda ruling (that is, there was no interrogation by a law enforcement officer in this case; the defendant simply had a noncoercive conversation with a friend). There also was no violation of the defendant’s Sixth Amendment right to counsel because the defendant had not been charged with the murder when the conversation occurred. See also Salkil v. Delo, 990 F.2d 386 (8th Cir. 1993) (similar ruling); United States v. Ingle, 157 F.3d 1147 (8th Cir. 1998) (no Miranda warnings required when government encouraged defendant’s fellow jail inmates to elicit incriminating statements from defendant).
Adequacy of Miranda Warnings
(This topic is discussed in the chapter text under “The Miranda Rule and Additional Statutory Rights.”)
Generally
UNITED STATES SUPREME COURT
Florida v. Powell, 559 U.S. 50 (2010). A Florida law enforcement officer, when advising a defendant of his Miranda rights, told the defendant, “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.” Id. at 54 (quoting Tampa Police Department form). The Court stated, noting its rulings in California v. Prysock, 453 U.S. 355 (1981), and Duckworth v. Eagan, 492 U.S. 195 (1989), that it has not dictated the words in which the essential information of a Miranda warning must be conveyed. Although the officer’s warning concerning the presence of a lawyer during interrogation did not track the language in the Miranda ruling, the Court ruled that the warning satisfied the requirement that a defendant must be clearly informed that he or she has the right to consult with a lawyer and to have the lawyer with him or her during interrogation. Thus, the warning here complied with the Miranda ruling.
Duckworth v. Eagan, 492 U.S. 195 (1989). Miranda warnings need not be given in the precise form set out in the Miranda ruling. The Miranda form’s warning in this case stated—after advising the defendant that he had a right to a lawyer before questions were asked and to have the lawyer present during questioning—that the officers had no way to give the defendant a lawyer, but that one would be appointed for him if and when he went to court. The court ruled that this form sufficiently complied with the Miranda ruling. But see United States v. Tillman, 963 F.2d 137 (6th Cir. 1992) (Miranda warnings were deficient because defendant was not told that any statements he might make could be used against him and was not informed of his right to counsel during questioning).
California v. Prysock, 453 U.S. 355 (1981). Miranda warnings need not be a verbatim recitation of the language in that case. Although the officer in this case did not explicitly state that the defendant had a right to have a lawyer appointed before questioning, he clearly told him that he had a right to have a lawyer present before and during questioning and he had a right to have a lawyer appointed at no cost if he could not afford one.
NORTH CAROLINA SUPREME COURT
State v. Cummings, 346 N.C. 291 (1997). While advising the defendant of his Miranda rights, an officer marked out the words “at no cost” in a sentence that read, “If you want a lawyer before or during questioning but cannot afford to hire one, one will be appointed to represent you at no cost before any questioning.” Id. at 316. The officer explained to the defendant, “I don’t know why they put in this ‘at no cost’. If you are found innocent, it is no cost, but if you are found guilty, there is a chance the state will require you to reimburse them for the attorney fees.” Id. The officer then explained to the defendant that he was going to cross it off and initial it because he didn’t want to mislead the defendant. The court ruled that the officer gave the defendant a fully effective equivalent of Miranda rights. The court noted that the officer’s additional information about the cost of an attorney was accurate.
NORTH CAROLINA COURT OF APPEALS
State v. Strobel, 164 N.C. App. 310 (2004). Three people were involved in an armed robbery. The defendant was arrested for conspiracy to commit the armed robbery, appeared in district court, and requested and was appointed an attorney in December 2001. Based on additional information implicating the defendant as a participant in the robbery, in January 2002, an officer arrested her for armed robbery. The officer did not orally advise the defendant of her Miranda rights. Instead, he gave her a written form and asked her to read it. She signed each page of the statement that acknowledged that she had read it. During her interrogation, the defendant mentioned that she had a court-appointed attorney representing her on the conspiracy charge. The officer told the defendant that she could use the telephone and telephone book located in the room to call her attorney. He also told her that he would stop interrogation until she had the opportunity to talk to her lawyer. The court ruled, relying on federal appellate cases, that giving the defendant her Miranda warnings only in writing did not violate the defendant’s Miranda rights. The court noted, however, that it is better practice to give a defendant an oral recitation of Miranda warnings.
Warnings in Foreign Languages
NORTH CAROLINA COURT OF APPEALS
State v. Ortez, 178 N.C. App. 236 (2006). A law enforcement officer fluent in Spanish read the defendant his Miranda rights in Spanish from a preprinted Miranda rights and waiver form. The defendant signed the waiver form. The defendant on appeal challenged the adequacy of the Miranda warnings, specifically, the use of the words “corte de ley” for “court of law” and “interrogatorio” for “questioning.” The defendant also challenged the Spanish translation of the Miranda right to counsel for an indigent person. The court discussed these issues and ruled that the Miranda warnings given in Spanish reasonably conveyed to the defendant his Miranda rights and were therefore adequate.
Necessity to Repeat Warnings
(This topic is discussed in the chapter text under “Whether Miranda Warnings Must Be Repeated If There Is a Lapse in Interrogation.”)
NORTH CAROLINA SUPREME COURT
State v. Harris, 338 N.C. 129 (1994). North Carolina law enforcement officers went to Georgia to return the defendant to North Carolina for a first-degree murder charge pending in North Carolina. After properly being advised of his Miranda rights, the defendant asserted his right to counsel. No interrogation was conducted. After his return to North Carolina twelve hours later, the defendant, through his brother (who was visiting the defendant in jail), asked to talk to the sheriff.
The court ruled that (1) the defendant initiated communication with the sheriff by telling his brother to inform the sheriff that he wanted to speak with him and (2) the sheriff was not required to give Miranda warnings again before interrogating the defendant. See generally State v. McZorn, 288 N.C. 417 (1975). The court stated that there was no reason to believe that the defendant, having been properly advised of his Miranda rights twelve hours earlier, had forgotten them. For example, he should have known of his right to an attorney because he had exercised that right twelve hours earlier.
State v. McZorn, 288 N.C. 417 (1975). When interrogation is broken off and resumed later, there are five factors to consider in deciding whether the initial Miranda warnings that were given to the defendant have become so stale that the defendant must be given new warnings before the later interrogation begins: (1) the length of time between the first warnings and the subsequent interrogation, (2) whether the warnings and subsequent interrogation were given in different places, (3) whether different officers gave the warnings and conducted the subsequent interrogation, (4) the extent to which the defendant’s subsequent statement differed from prior statements [Author’s note: This is an after-the-fact judgment that officers cannot make when they must decide whether to repeat Miranda warnings before the subsequent interrogation.], and (5) the defendant’s apparent intellectual or emotional status. See also State v. Smith, 328 N.C. 99 (1991); State v. Branch, 306 N.C. 101 (1982); State v. White, 291 N.C. 118 (1976); State v. Simpson, 297 N.C. 399 (1979); State v. Westmoreland, 314 N.C. 442 (1983); State v. Artis, 304 N.C. 378 (1981); State v. Cole, 293 N.C. 328 (1977); State v. Garrison, 294 N.C. 270 (1978); State v. Leak, 90 N.C. App. 351 (1988).
NORTH CAROLINA COURT OF APPEALS
State v. Flowers, 121 N.C. App. 299 (1996). The defendant was not entitled to a repetition of Miranda warnings when the evidence showed that she (1) was properly advised of and waived her Miranda rights at about 7:38 p.m.; (2) repeated her confession while being tape recorded at 8:30 p.m. that same night, while affirming that she had been advised of her constitutional rights; and (3) at 10:02 a.m. the next morning read and signed a transcript of her recorded statement, affirming the transcript to be her entire statement. The initial Miranda warnings were not stale at the time of the defendant’s later confession the same evening she received the warnings or at the time of her affirmation of the transcript the next morning.
FEDERAL APPELLATE COURTS
Guam v. Dela Pena, 72 F.3d 767 (9th Cir. 1995). Statements made by a defendant during custodial interrogation are not inadmissible at trial simply because officers failed to repeat Miranda warnings previously given to the defendant when he was not in custody. In this case, officers gave Miranda warnings to the defendant when he was not in custody. Fifteen hours later, the officers reminded the defendant of his previously-given Miranda warnings before questioning him while he was in custody. Based on these and other facts, the court ruled that the defendant had properly received his Miranda warnings.
Waiver of Miranda Rights
(This topic is discussed in the chapter text under “Waiver of Miranda Rights.”)
Generally
United States Supreme Court
Berghuis v. Thompkins, 560 U.S. 370 (2010). The Court ruled that (1) the defendant impliedly waived his rights under Miranda v. Arizona, 384 U.S. 436 (1966), and (2) a defendant must make an unambiguous assertion of the right to remain silent to require an officer to stop custodial interrogation.
Officers were investigating a murder. Before beginning a custodial interrogation, one of the officers presented the defendant with a Miranda form. The form included the four warnings required by Miranda (right to remain silent, use of statements in court, right to have lawyer present, right to have appointed lawyer if indigent), and an additional warning not required by Miranda: “You have the right to decide at any time before or during questioning to use your right to remain silent and your right to talk with a lawyer while you are being questioned.” Berghuis, 560 U.S. at 375. The officer asked the defendant to read the fifth warning aloud so that he could ensure that the defendant understood English, which the defendant did. The officer then read the other four Miranda warnings aloud and asked the defendant to sign the form to demonstrate that he understood his rights. The defendant declined to sign the form. There was conflicting evidence as to whether the officer verbally confirmed that the defendant understood the rights listed on the form. The officer did not discuss a waiver of Miranda rights with the defendant or obtain one from him.
During the interrogation, the defendant never stated that he wanted to remain silent, that he did not want to talk with the officers, or that he wanted a lawyer. About two hours and forty-five minutes into the interrogation, during which the defendant was mostly silent, an officer asked the defendant, “Do you believe in God?” The defendant said “yes.” The officer asked, “Do you pray to God?” The defendant said “yes.” The officer then asked, “Do you pray to God to forgive you for shooting that boy down?” The defendant said “yes” and looked away. Id. at 376. The interview ended shortly thereafter. At trial, the defendant moved to suppress these statements. The issue before the United States Supreme Court was the admissibility of these statements under Miranda and later Miranda-related cases.
The Court noted that some language in Miranda could be read to indicate that a waiver of Miranda rights is difficult to establish absent an explicit written waiver or a formal, explicit oral statement. However, the Court discussed its rulings since Miranda, particularly North Carolina v. Butler, 441 U.S. 369, 371 (1979) (valid waiver when defendant read Miranda rights form, said he understood his rights, refused to sign waiver at bottom of form, but said, “I will talk to you but I am not signing any form”), indicating that its later decisions made clear that a waiver of Miranda rights may be implied through the defendant’s silence, coupled with an understanding of his or her rights and a course of conduct indicating waiver. The Court in effect disavowed the language in Miranda suggesting that it is difficult to establish a Miranda waiver without an explicit written waiver or a formal, explicit oral statement.
The Court concluded that if the prosecution shows that a defendant was given Miranda warnings and understood them, a defendant’s uncoerced statements establish an implied waiver of Miranda rights. A defendant’s explicit waiver need not precede custodial interrogation. Any waiver, explicit or implied, may be withdrawn by a defendant’s invocation at any time of the right to counsel or the right to remain silent.
Turning to the case before it, the Court ruled that the defendant waived his right to remain silent, and his statements were admissible at trial. The Court found that there was no basis to conclude that the defendant did not understand his Miranda rights, and the defendant chose not to invoke or rely on those rights when he made his uncoerced statements.
Colorado v. Spring, 479 U.S. 564 (1987). The defendant was arrested for federal firearms violations and was properly given Miranda warnings and waived his rights. The officers then asked him about an unrelated murder. The Court ruled that a defendant may validly waive Miranda rights without being informed of the subject matter of the ensuing interrogation.
Colorado v. Connelly, 479 U.S. 157 (1986). An apparently mentally ill defendant turned himself in to a law enforcement officer and confessed to a murder. The court ruled: (1) Coercive law enforcement activity is a necessary predicate to a finding that a confession is involuntary under the Due Process Clause; the fact that the defendant’s mental condition may have motivated him to confess, absent law enforcement wrongdoing, did not make the confession involuntary. (2) Absent law enforcement coercion, the defendant’s waiver of Miranda rights was valid despite the fact that the defendant may have felt compelled by his mental condition to waive his rights. (3) The State must prove a valid waiver of Miranda rights by the “preponderance of evidence” standard. But see United States v. Bradshaw, 935 F.2d 295 (D.C. Cir. 1991) (distinguishing Connelly, court ruled that trial judge must determine whether defendant had mental capacity to make knowing and intelligent waiver of Miranda rights); State v. Sanchez, 328 N.C. 247 (1991) (defendant had right to have expert testify about his lack of mental capacity to understand and waive Miranda rights).
Moran v. Burbine, 475 U.S. 412 (1986). A defendant validly waived his Miranda rights even though officers did not inform him of his attorney’s efforts to contact him. [Author’s note: The defendant’s Sixth Amendment right to counsel had not attached when his attorney was trying to contact him.] The attorney’s efforts to contact him, unknown by the defendant, did not affect the defendant’s capacity to waive his Miranda rights. The Court also ruled that officers’ conduct in this case was not so outrageous as to constitute a due process violation.
Tague v. Louisiana, 444 U.S. 469 (1980). The defendant’s statement was inadmissible at trial because the State did not introduce any evidence to show that the defendant knowingly and intelligently waived his Miranda rights before he made his statement. The arresting officer testified that he read the Miranda rights from a card, could not remember what those rights were, could not recall whether he asked the defendant if he understood those rights, and could not remember whether the defendant was literate or otherwise capable of understanding his rights.
North Carolina v. Butler, 441 U.S. 369 (1979). A defendant’s waiver, after receiving Miranda warnings, of the right to counsel or the right to remain silent need not be explicit. Although the State has the burden of showing a waiver of Miranda rights, a knowing and voluntary waiver may be shown by the defendant’s silence, coupled with an understanding of the rights and a course of conduct that indicates that the defendant implicitly has waived these rights. In this case, the defendant read the Miranda rights form, said that he understood his rights, refused to sign the waiver at the bottom of the form, but said, “I will talk to you but I am not signing any form.” Id. at 371. See also State v. Connley, 297 N.C. 584 (1979) (defendant implicitly waived his Miranda rights when, after refusing to sign a waiver form, he freely and voluntarily talked with officer). But see State v. Steptoe, 296 N.C. 711, 717 (1979) (the defendant did not knowingly, voluntarily, and understandingly waive his right to counsel under Miranda when he requested a lawyer but an officer discouraged the appointment of counsel by telling the defendant that he would be brought before a judge and “if the judge saw fit to appoint him a lawyer that is where his lawyer would come from”).
North Carolina Supreme Court
State v. Knight, 369 N.C. 640 (2017). The defendant was arrested for rape, and officers read him his Miranda rights. He did not expressly acknowledge or waive these rights. The defendant did talk at length with the officers, attempting to convince them of his innocence but in fact making statements that eventually became part of the State’s case against him. He moved to suppress the statements prior to trial, but his motion was denied. After the defendant was convicted, he appealed. The court of appeals, 245 N.C. App. 532 (2016), found a Miranda violation because the defendant did not expressly waive his rights, though a majority of the court saw the violation as harmless. The state supreme court, applying Berghuis v. Thompkins, 560 U.S. 370 (2010), found that there was no Miranda violation, as the defendant understood his Miranda rights and effected an implied waiver by choosing to speak with the officers. The court noted that the defendant was an adult who spoke English fluently and had his rights read to him, so there was no doubt that he understood them. And it rejected the idea that an express acknowledgment, statement of understanding, or waiver was required, instead applying a totality-of-the-circumstances analysis.
State v. Daniels, 337 N.C. 243 (1994). During a suppression hearing challenging the defendant’s mental capacity to waive Miranda rights, the defense called a law enforcement officer who observed the defendant immediately after the defendant’s interrogation by other officers. The defense asked the officer whether the defendant “could have waived” his Miranda rights and whether the defendant understood the Miranda waiver form. The court ruled that the trial judge properly sustained the State’s objections to these questions because they called for a legal conclusion as to whether the defendant had the capacity to waive his rights. The court noted that the defense did not ask whether the defendant had the capacity to understand key words used (such as “right,” “attorney,” “waiver,” and so forth), implying that such questions would be permissible.
State v. Williams, 334 N.C. 440 (1993). An officer gave Miranda rights to the defendant after placing the defendant in custody in a room in a boarding house. When the officer asked him if he understood the rights, the defendant said “yes.” The defendant remained silent when the officer asked him first, whether he wished to waive his right to remain silent, and second, whether he wished to waive his right to have counsel present during questioning. Soon thereafter, someone else asked the defendant whether anything in the room belonged to him. The defendant responded that he owned boxes located on the floor of the room. An officer then asked if he would consent to a search of the boxes, to which the defendant responded “yes.”
Relying on North Carolina v. Butler, 441 U.S. 369 (1979), the court ruled that the defendant properly waived his Miranda rights. The court noted that although the defendant remained silent when asked if he would waive his rights, he had previously affirmatively stated that he understood his rights. He appeared coherent then and capable of understanding his rights. Also, the officers did not pressure the defendant in any way to answer their questions. Thus, the defendant impliedly waived his right to remain silent and his right to counsel by answering the officers’ questions after expressly acknowledging that he understood his right not to do so in the absence of counsel.
State v. McKoy, 332 N.C. 639 (1992). An in-custody defendant indicated to officers that he wanted to waive his Miranda rights. The defendant was given a waiver form, but he signed at the place on the form that indicated that he did not waive his rights. The officers then asked the defendant whether he had made a mistake. The defendant indicated that he still desired to answer questions and did not want a lawyer, and he scratched his signature from the form and signed in the appropriate place to waive his rights. The court ruled that officers properly may ask questions to clarify the apparently mistaken way in which a defendant answers their questions.
State v. McKoy, 323 N.C. 1 (1988). The defendant gave a voluntary confession and a proper waiver of his Miranda rights, even though he was mildly intoxicated, had a subnormal mental capacity, and had been injured when arrested. The totality of circumstances supported the trial judge’s conclusion that the defendant knowingly, intelligently, and voluntarily waived his Miranda rights and that his statements were made freely, understandingly, and voluntarily.
State v. Fincher, 309 N.C. 1 (1983). Based on the facts in this case, the court ruled that a mentally retarded 17-year-old defendant had the mental capacity to waive Miranda rights. See also State v. Brown, 112 N.C. App. 390 (1993), aff’d per curiam, 339 N.C. 606 (1995) (similar ruling); State v. Jones, 153 N.C. App. 358 (2002).
State v. Jenkins, 300 N.C. 578 (1980). A mildly mentally retarded defendant had sufficient mental capacity to understand and waive his Miranda rights.
State v. Carter, 296 N.C. 344 (1979). It is not necessary that a defendant be informed of the crime that officers are investigating before the defendant may waive his Miranda rights, although whether the defendant had been so informed may be a factor in determining the sufficiency of the waiver.
North Carolina Court of Appeals
State v. Santillan, 259 N.C. App. 394 (2018). Officers arrested a 15-year-old suspect in connection with a double murder. He initially waived his right to counsel but later asserted it, leading the officers to stop questioning him. He then had a brief exchange with the chief of police in which, among other things, the chief told him that he had “f***** up.” The defendant subsequently waived his right to counsel again and made further statements. His motion to suppress those statements was denied, and they were admitted against him at trial. The court of appeals remanded for further findings regarding whether the conversation with the chief was an unlawful attempt to interrogate an arrestee who had asserted his right to counsel. The court rejected the defendant’s argument that “his second waiver [of his right to counsel] was involuntary because of factors including his young age, the officers’ interrogation tactics, and his lack of sleep, food, and medication.” Id. at 401. The court agreed with the trial judge that the defendant’s “actions and statements show[ed] awareness and cognitive reasoning during the entire interview” and that the defendant “was not coerced into making any statements, but rather made his statements voluntarily.” Id. (quoting trial court),
State v. Flowers, 128 N.C. App. 697 (1998). When the mother of the defendant, who was 13 years old, learned that the police were looking for her son, she brought him to the police department. Before asking any questions, an officer read the defendant his juvenile rights in his mother’s presence. After each right was read, the officer asked the defendant and his mother if they understood, and they answered “yes” each time. The defendant did not make any affirmative statement as to whether he would agree to talk with officers or whether he wanted a lawyer to be present. The officer interrogated the defendant in his mother’s presence for about two hours.
(1) The defendant argued that he never expressly waived his right to remain silent and his right to counsel. The court, citing North Carolina v. Butler, 441 U.S. 369 (1979), noted that an express waiver of Miranda rights is not required and ruled that a juvenile need not make an express waiver of juvenile rights. (2) The defendant argued that he lacked the capacity to understand his rights because of his youth and low mental ability (a psychologist testified that the defendant was mildly retarded with a full-scale IQ of 56 and a verbal IQ of 48). The court ruled that the defendant knowingly, intelligently, and voluntarily waived his rights. The court stated, citing State v. Fincher, 309 N.C. 1 (1995), that a defendant’s youth or subnormal mental capacity does not necessarily make him incapable of waiving his rights knowingly and voluntarily.
Waiver When There Are Foreign Language Issues
NORTH CAROLINA SUPREME COURT
State v. Mlo, 335 N.C. 353 (1994). A detective anticipated potential language difficulties in questioning the defendant. Believing that the defendant spoke Vietnamese, the detective obtained a Vietnamese interpreter. However, the defendant, a native of Vietnam’s Montagnard region, spoke Dega as well as some English and Vietnamese. On those occasions when the interpreter assisted the defendant, the defendant was able to continue the interview in English and gave logical responses to the questions asked. During the interview, the defendant appeared to understand the questions and responded most of the time in English without the interpreter’s assistance. The court ruled that the defendant knowingly, intelligently, and voluntarily waived his Miranda rights.
NORTH CAROLINA COURT OF APPEALS
State v. Medina, 205 N.C. App. 683 (2010). The court ruled that the defendant’s waiver of Miranda rights was valid when Miranda warnings were given by an officer who was not fluent in Spanish. The officer communicated effectively with the defendant in Spanish, despite a lack of fluency. The defendant gave clear, logical, and appropriate responses to questions. Also, when the officer informed the defendant of his Miranda rights, he did not translate English to Spanish but, rather, read aloud the Spanish version of the waiver-of-rights form. Even if the defendant did not understand the officer, the defendant read each right, written in Spanish, initialed next to each right, and signed the form indicating that he understood his rights. The court noted that officers are not required to orally apprise a defendant of Miranda rights to effectuate a valid waiver.
State v. Mohamed, 205 N.C. App. 470 (2010). The court ruled that the trial court did not commit plain error by failing to exclude the defendant’s statements to investigating officers after his arrest. The defendant had argued that because of his limited command of English, the Miranda warnings were inadequate and he did not freely and voluntarily waive his Miranda rights. The court determined that there was ample evidence to support a conclusion that the defendant’s English skills sufficiently enabled him to understand the Miranda warnings that were read to him. Among other things, the court referenced the defendant’s ability to comply with an officer’s instructions and the fact that he wrote his confession in English. The court also concluded that the evidence was sufficient to permit a finding that the defendant’s command of English was sufficient to permit him to waive his Miranda rights knowingly and intelligently, referencing, among other things, his command of conversational English and the fact that he never asked for an interpreter.
State v. Nguyen, 178 N.C. App. 447 (2006). The court ruled that a Miranda waiver by a Vietnamese-speaking defendant was understandingly, voluntarily, and knowingly made when a Vietnamese-speaking law enforcement officer acted as the translator for the interrogating law enforcement officer. There was no evidence that the officer-translator was deceitful or acted in an otherwise improper manner during his dealings with the defendant. The court rejected the defendant’s argument that the officer-translator was not a neutral translator because he was a law enforcement officer.
State v. Ortez, 178 N.C. App. 236 (2006). A law enforcement officer fluent in Spanish read the defendant his Miranda rights in Spanish from a preprinted Miranda rights and waiver form. The defendant signed the waiver form. The defendant’s testing showed that he had an IQ ranging from 55 to 77, classifying him as mildly mentally retarded to borderline intellectual or low-average functioning. The court noted that a defendant’s IQ alone does not mean that the defendant cannot make a voluntary, knowing, and intelligent waiver of his or her Miranda rights. The court discussed the facts in this case and ruled that the defendant’s waiver was valid based on the totality of circumstances.
The Public-Safety Exception
(This topic is discussed in the chapter text under “The Public-Safety Exception.”)
United States Supreme Court
New York v. Quarles, 467 U.S. 649 (1984). The Court recognized a narrow “public-safety” exception to the Miranda rule. Responding to a report that a woman had been raped by a man with a gun who had just entered a grocery store, an officer took the defendant into custody. He frisked him and discovered that he was wearing a shoulder holster that was empty. After handcuffing the defendant, the officer asked him where the gun was. The defendant responded, “The gun is over there.” The Court ruled that the Miranda rule does not apply to custodial interrogation when an officer has an objectively reasonable need (that is, the officer’s subjective belief or motivation is not controlling) to protect the officer or the public from an immediate danger associated with a weapon. In this case, officers needed to determine immediately the location of a gun that they had reason to believe the defendant had just removed from his holster and discarded in the grocery store. The discarded gun posed a danger to public safety by anyone who might find it, such as an employee, a customer, or an unknown accomplice.
North Carolina Supreme Court
State v. Al-Bayyinah, 359 N.C. 644 (2005). The defendant robbed a grocery store owner with a knife. Law enforcement officers responded to a 911 call from the owner and began searching the area around the store for the person matching the description of the robber given by the owner. When an officer made eye contact with the defendant, he ran into nearby woods. Officers secured the perimeter and apprehended the defendant after about an hour of searching. An officer with a tracking dog made the first contact with the defendant and asked him where the knife was. The defendant responded that he did not have a knife. A knife was later found nearby. The court ruled that the defendant’s statement was admissible at trial under the public-safety exception to the Miranda ruling as set out in New York v. Quarles, 467 U.S. 649 (1984). The officer was alone and unarmed when he discovered the defendant. He knew that the crime involved a stabbing and that the defendant could possess a knife. The officer’s question was limited to determining the location of the knife and was necessary to secure his safety.
State v. Brooks, 337 N.C. 132 (1994). A State Bureau of Investigation agent accompanied other law enforcement officers in executing a search warrant for a nightclub to search for illegal drugs. On arriving at the nightclub, the agent saw a vehicle parked in the parking lot with the defendant sitting in the driver’s seat. The agent walked over to the driver’s side of the vehicle and shined his flashlight into the car’s interior. He saw on the passenger side of the bucket seats an empty unsnapped holster within the defendant’s reach. The agent asked the defendant, “Where is your gun?” The defendant replied, “I’m sitting on it.” The agent was unable to see the gun although he shined his light all about the vehicle. He asked the defendant to get out of the vehicle; the defendant reached under his right thigh and handed the gun to the agent. The agent did not place the defendant under arrest for carrying a concealed weapon but eventually obtained permission to search the vehicle and found cocaine in a nylon pouch.
The court ruled that the defendant was not in custody when the agent asked him where his gun was, and therefore Miranda warnings were not required. Even if the defendant had been in custody, Miranda warnings were not required because the agent was permitted to ask that question for his own safety; see New York v. Quarles, 467 U.S. 649 (1984).
State v. McQueen, 324 N.C. 118 (1989). Officers were conducting an extensive manhunt for the defendant, who had just murdered a highway patrolman and was suspected of having two guns and ammunition. When the officers arrested the defendant, one officer, without giving Miranda warnings, asked him several times where the guns were. The defendant replied each time, “No comment.” The trial court suppressed the questions and answers, and the appellate court affirmed, stating that the officer’s questions about the guns were clearly designed to elicit incriminating responses. [Author’s note: It is questionable whether this ruling is consistent with New York v. Quarles, 467 U.S. 649 (1984), discussed above in this section under “UNITED STATES SUPREME COURT.”]
North Carolina Court of Appeals
State v. Crook, 247 N.C. App. 784 (2016). The court rejected the State’s argument that the public-safety exception established in New York v. Quarles, 467 U.S. 649 (1984), applied here. The court found the facts of this case “noticeably distinguishable” from those in Quarles, noting that the defendant was not suspected of carrying a gun or other weapon; rather, he was sitting on the ground in handcuffs and already had been patted down.
State v. Hewson, 182 N.C. App. 196 (2007). Officers went to a home in response to a 911 call by the victim of a shooting, made while she was inside her home, reporting that she had been shot by her husband. They saw the defendant outside the house and ordered him to lie face down on the ground. After handcuffing the husband, an officer asked him, without giving Miranda warnings, “Is there anyone else in the house, where is she?” The court ruled that the defendant’s statement in response to the officer’s question was admissible at trial under the public-safety exception to Miranda in New York v. Quarles, 467 U.S. 649 (1984).
State v. Garcia-Lorenzo, 110 N.C. App. 319 (1993). The defendant was involved in a vehicular accident by running off a road and was injured. Officers transported the defendant to a hospital, where the officers and doctors had to restrain him when he became violent. Because an officer wanted to know whether to look for other victims of the accident, the officer and then a doctor asked the defendant whether he was alone in the car. The defendant responded several times, “No, alone.” The court affirmed the trial judge’s conclusions of law that this questioning was permissible for the following reasons: (1) It was within Miranda’s public-safety exception, recognized in New York v. Quarles, 467 U.S. 649 (1984), discussed above in this section under “UNITED STATES SUPREME COURT,” because officers were concerned that someone else may have been injured and was lying undiscovered at the scene. (2) The defendant was not subjected to “interrogation” as defined in Rhode Island v. Innis, 446 U.S. 291 (1980).
State v. Harris, 95 N.C. App. 691 (1989), aff’d per curiam, 326 N.C. 588 (1990). An officer’s asking a defendant being frisked if he had a weapon was proper without Miranda warnings under New York v. Quarles, 467 U.S. 649 (1984), discussed above in this section under “UNITED STATES SUPREME COURT.”
Federal Appellate Courts
United States v. Mobley, 40 F.3d 688 (4th Cir. 1994). Officers began the execution of a search warrant for drugs at the defendant’s apartment by arresting the defendant and conducting a security sweep that revealed that no one else was there. They gave Miranda warnings to the defendant, and he asserted his right to counsel. One officer then asked the defendant if there was anything in the apartment that could be of danger to the officers while they executed the search warrant. The court recognized that the public-safety exception under New York v. Quarles, 467 U.S. 649 (1984), discussed above in this section under “UNITED STATES SUPREME COURT,” applied even after a defendant’s assertion of the right to counsel, but it ruled that the officer’s question here did not qualify under the exception because there was no apparent danger to the officers executing the warrant. The officers had the defendant in custody and had already conducted a security sweep before the officer asked the defendant the question.
Fleming v. Collins, 954 F.2d 1109 (5th Cir. 1992) (en banc). Officers, with guns drawn, approached a bank robber being held by a private citizen, who also had a gun drawn on the robber, who had been shot. The court ruled that the officers’ questions to the robber, without giving him Miranda warnings, about where his gun was located, who had shot him, and whether he had been involved in the bank robbery were proper under New York v. Quarles, 467 U.S. 649 (1984), discussed above in this section under “UNITED STATES SUPREME COURT.”
United States v. Lawrence, 952 F.2d 1034 (8th Cir. 1992). After the defendant volunteered that he had thrown away a gun when he was running from an officer, his responses to an officer’s question about the location of the gun and about a map the defendant drew at the police station fell within the public-safety exception.
United States v. DeSantis, 870 F.2d 536 (9th Cir. 1989). Officers arrested the defendant in his home and gave him Miranda warnings. The defendant asserted his right to speak with a lawyer. When the defendant asked to change his clothes in his bedroom, the officers asked if there were any weapons there. The court ruled that the defendant’s incriminating response was admissible at trial under New York v. Quarles, 467 U.S. 649 (1984), discussed above in this section under “UNITED STATES SUPREME COURT.”
United States v. Padilla, 819 F.2d 952 (10th Cir. 1987). The defendant was arrested in front of his residence by officers who had responded to a call about a man firing a weapon. After seeing three bullet holes in a window of the residence, an officer asked the defendant if he was okay and the defendant said that he was. The officer then asked, “How about inside the house?” The defendant responded, “I shot someone inside the house.” The court ruled that the officer’s question (asked before he gave Miranda warnings) was proper under New York v. Quarles, 467 U.S. 649 (1984), discussed above in this section under “UNITED STATES SUPREME COURT.”
The Booking-Questions Exception
(This topic is discussed in the chapter text under “The Booking-Questions Exception.”)
United States Supreme Court
Pennsylvania v. Muniz, 496 U.S. 582 (1990). A four-Justice plurality ruled that routine booking questions may be asked and answered without Miranda warnings if the questions are not designed to elicit incriminating statements. The questions in this case concerned the defendant’s name, address, height, weight, eye color, date of birth, and current age. [Author’s note: This opinion clearly represents current law.]
North Carolina Supreme Court
State v. Brewington, 352 N.C. 489 (2000). While investigating officers were giving the defendant Miranda warnings, he stated, “I believe I need to talk to a lawyer.” An officer responded, “I believe you do, too.” Another officer then asked the defendant for information to complete the defendant’s personal-history arrest form, including his date of birth, Social Security number, address, height, and weight. During this process, the defendant asked the officers, “What if I know who did it?” One officer informed the defendant that he could not talk to him because he had not waived his rights. He stated that he could not say anything to the defendant and that the defendant should say nothing to him. The officer further stated that if the defendant wanted to talk to him, he had to initiate it, and then the officer would be required to re-advise the defendant of his Miranda rights and obtain a waiver stating that the defendant did not wish to have an attorney. As the defendant continued to ask questions of the officers about the case, an officer again explained that the defendant had invoked his right to counsel and that they therefore could not talk with him. The defendant then indicated to the officers that he had changed his mind and wanted to talk with them. An officer again informed the defendant that he had invoked his right to counsel and that any decision to talk had to be his. Again, the defendant stated that he wanted to talk. He was then given Miranda warnings and waived them.
The court ruled, citing Rhode Island v. Innis, 446 U.S. 291 (1980), and State v. Ladd, 308 N.C. 272 (1983), that the officer’s questions asked to complete the arrest form were not a custodial interrogation in violation of the defendant’s assertion of his right to counsel under Edwards v. Arizona, 451 U.S. 477 (1981). The court also ruled that the defendant re-initiated interrogation after his assertion of the right to counsel.
State v. Golphin, 352 N.C. 364 (2000). The defendants were charged with several offenses, including the murders of two law enforcement officers. After being advised of his Miranda rights, one of the defendants invoked his right to counsel. An officer told the defendant that he could not talk with him about the offenses because the defendant had asserted his right to counsel but that he needed to obtain biographical and background information for the arrest report. After a conversation about biographical information and other matters, the defendant, erroneously believing that there was a video-camera recording of his killing of the law enforcement officers, asked why the officers wanted to talk about the offenses because they should have been videotaped. An officer responded that they still needed to know what happened—the officers knew that there was no videotape, but they never indicated that fact to the defendant. The defendant then stated that he would tell the officers what had happened.
The court ruled that the defendant’s Miranda rights were not violated. Citing State v. Ladd, 308 N.C. 272 (1983), and other cases, the court noted that questions concerning biographical information necessary to complete the booking process that are not reasonably likely to elicit an incriminating response are not interrogation under Miranda. In addition, the defendant initiated further discussion when he asked about the videotape, and the officer should not have believed that his answer to the question would elicit an incriminating response.
State v. Banks, 322 N.C. 753 (1988). An officer’s routine booking question to the defendant about his age was not interrogation under Miranda. The officer’s question was not designed to elicit incriminating information. In determining whether a booking question was interrogation, the focus should be when and under what circumstances the question was asked, not how the information obtained by the question is used at trial.
State v. Ladd, 308 N.C. 272 (1983). An officer’s routine questions concerning booking information that are not intended to elicit an incriminating response are not interrogation. However, in this case, when the officer who asked the booking questions already knew that the defendant’s license was in law enforcement custody, his question about its location was asked only to elicit an incriminating response and therefore constituted interrogation.
North Carolina Court of Appeals
State v. Boyd, 177 N.C. App. 165 (2006). The defendant was arrested for drug trafficking and other drug offenses. Before Miranda warnings were administered, an officer asked booking questions, including the location of the defendant’s residence. The defendant gave as his address the place where officers had seized illegal drugs. One of the issues in the case was the defendant’s relationship to the dwelling where the illegal drugs had been seized. The court ruled, relying on the Miranda bookings-question exception discussed in State v. Golphin, 352 N.C. 364 (2000), that the exception did not apply to this question because it was reasonably likely to elicit an incriminating response.
State v. Locklear, 138 N.C. App. 549 (2000). The defendant was arrested for statutory rape. He was not given Miranda warnings. During the booking process, an officer used a form that, among other things, required the entry of the defendant’s date of birth. The officer asked the defendant his date of birth, and the defendant stated that it was August 2, 1976. At trial the officer testified—over the defendant’s objection on Miranda grounds—about the defendant’s date of birth based on the defendant’s statement during the booking process. This testimony was the only evidence of the defendant’s age, which is an element of statutory rape.
The court noted that although Miranda does not apply to the gathering of biographical data necessary to complete the booking process, it applies if the questions are designed to elicit a response that the officer knows or should know is reasonably likely to be incriminating. The court stated that the officer, in addition to booking the defendant, was also the investigating officer. The court then ruled that “[s]ince defendant’s age was an essential element of the crime charged, . . . [the officer] . . . knew or should have known her question regarding defendant’s date of birth would elicit an incriminating response,” and therefore the defendant’s rights under Miranda were violated and the defendant’s response was inadmissible. Id. at 552 (footnote omitted). [Author’s note: In State v. Banks, 322 N.C. 753 (1988), the North Carolina Supreme Court ruled that the defendant’s date of birth given during the booking process was routine information and was admissible without Miranda warnings, even if his age was an essential element of the crimes for which he was being booked. Citing Banks but not discussing it, the court in this case apparently would distinguish that ruling because the officer in this case was also the investigating officer. However, a defendant’s date of birth is routine information that officers seek to obtain after every arrest.]
State v. Harris, 67 N.C. App. 97 (1984). An officer’s questioning of the defendant about his address when completing a waiver-of-rights form was not interrogation. The question was not asked to elicit an incriminating response, nor was it reasonably likely to elicit an incriminating response.
State v. Sellars, 58 N.C. App. 43 (1982). An officer’s routine questions about the defendant’s name, address, and date of birth after the defendant refused to waive his Miranda rights were proper.
Federal Appellate Courts
United States v. Webster, 769 F.2d 487 (8th Cir. 1985). Asking booking questions after the defendant asserted the right to remain silent was proper. See also United States v. Taylor, 799 F.2d 126 (4th Cir. 1986) (asking defendant his name for booking purposes after his assertion of right to counsel was proper); United States v. Dougall, 919 F.2d 932 (5th Cir. 1990) (asking booking questions after defendant’s assertion of right to remain silent was proper).
Questioning by Non–Law Enforcement Officers
(This topic is discussed in the chapter text under “Questions by undercover law enforcement officers or by non–law enforcement officers.”)
UNITED STATES SUPREME COURT
Illinois v. Perkins, 496 U.S. 292 (1990). Officers were investigating the defendant as a homicide suspect. While the defendant was in jail on unrelated charges, an officer—acting undercover—was admitted to jail as an inmate. The defendant stated during conversations with the officer that he committed the homicide. The defendant did not know that he was speaking to an officer. The Court ruled that the requirements of the Miranda ruling, which include giving Miranda warnings, did not apply to these facts. The Court stated that a “police-dominated atmosphere” and compulsion, which underlay the Miranda ruling, do not exist when an incarcerated person speaks voluntarily with someone he or she believes to be a fellow inmate. The Court also noted that the defendant’s Sixth Amendment right to counsel was not implicated in this case because the defendant had not yet been charged with the homicide when the undercover officer talked with him in jail. The Court did not discuss whether the officer’s conduct would have been permissible if the defendant had asserted his right to counsel under the Fifth Amendment for the unrelated charges for which he had been jailed.
NORTH CAROLINA SUPREME COURT
State v. Powell, 340 N.C. 674 (1995). The defendant was arrested for murder and asserted his right to counsel during custodial interrogation. He was placed in jail. Later, the defendant made a telephone call to two people (Weathers and Yelton), who recorded the conversation and gave the recording to the police. Weathers testified that he and Yelton had recorded the conversation for “personal reasons.” He also testified that no officer had requested that the two of them record conversations with the defendant, although they had been told that any information they had concerning the murder would help the police. The court ruled that the defendant’s Fifth Amendment rights were not violated because Weathers and Yelton did not make the recording as agents of the police.
State v. Massey, 316 N.C. 558 (1986). Questioning of the defendant by his father in a jail’s conference room with an officer present was not custodial interrogation under the Miranda ruling. See also State v. Etheridge, 319 N.C. 34 (1987) (defendant’s interview with a nurse was not custodial interrogation under the Miranda ruling). [Author’s note: Although the results in Massey and Etheridge would still be correct after the ruling in Illinois v. Perkins, 496 U.S. 292 (1990), the analysis would be different. See the comment in the note below under State v. Morrell, 108 N.C. App. 465 (1993), found under the label “NORTH CAROLINA COURT OF APPEALS,” below.]
State v. Alston, 295 N.C. 629 (1978). Incriminating statements made to non–law enforcement officers are admissible if they were made freely and voluntarily. See also State v. Cooper, 286 N.C. 549 (1975).
State v. Holcomb, 295 N.C. 608 (1978). A conversation between the defendant and his uncles at the sheriff’s office was not custodial interrogation when there was no evidence that the uncles were acting as agents of law enforcement officers. See also State v. Johnson, 29 N.C. App. 141 (1976) (police radio dispatcher was not law enforcement officer or acting as one); State v. Perry, 50 N.C. App. 540 (1981) (bail bondsman taking defendant into custody as bail jumper was not law enforcement officer); State v. Conrad, 55 N.C. App. 63 (1981) (magistrate was not acting as law enforcement officer when she talked to defendant). [Author’s note: Although the results in Holcomb and the other cases cited in this paragraph would still be correct after the ruling in Illinois v. Perkins, 496 U.S. 292 (1990), the analysis would be different. See the comment in the note below under State v. Morrell, 108 N.C. App. 465 (1993), found under the label “NORTH CAROLINA COURT OF APPEALS,” below.]
NORTH CAROLINA COURT OF APPEALS
State v. Rollins, 226 N.C. App. 129 (2013). The court ruled that the trial court did not err by finding that the defendant’s statements to his wife regarding his participation in a murder were voluntary. The defendant’s wife spoke with him five times while he was in prison (on charges not connected to the murder) and while wearing a recording device provided by the police. While the wife did not threaten the defendant, she did make up evidence that she claimed law enforcement had recovered and told the defendant that officers suspected that she was involved in the murder. In response, the defendant made incriminating statements in which he corrected the wife’s lies concerning the evidence and admitted details of the murder. The court rejected the defendant’s argument that his statements were involuntary because of his wife’s deception and her emotional appeals to him based on this deception.
State v. Pittman, 174 N.C. App. 745 (2005). The defendant was convicted of various offenses involving a 6-week-old infant, including attempted first-degree murder. While in custody awaiting trial, the mother of the infant wrote letters to the defendant asking him why he had committed the crimes. The mother testified at trial that although the defendant replied to the letters, he never answered her questions. The court ruled that the admission of the mother’s testimony did not violate Doyle v. Ohio, 426 U.S. 610 (1976) (impermissible use of defendant’s post-arrest silence after giving Miranda warnings), because any silence on the part of the defendant was not in response to questioning by law enforcement officers. Nor was the mother acting as the agent of officers in writing these letters. [Author’s note: It is questionable whether North Carolina rulings applying the Miranda ruling to agents of law enforcement officers are still valid after the ruling in Illinois v. Perkins, 496 U.S. 292 (1990). See the discussion of Perkins above in this section under “UNITED STATES SUPREME COURT” and of Alexander v. Connecticut, 917 F.2d 747 (2d Cir. 1990), below. The court ruled, alternatively, that even if Miranda was applicable, the defendant did not choose to remain silent. Instead, he voluntarily wrote back to the mother, and the State may inquire about the defendant’s failure to disclose certain information in the reply letters.
State v. Morrell, 108 N.C. App. 465 (1993). The defendant was arrested on a federal charge of child abduction and was committed to the county jail. A social worker in the county child protective services unit identified herself and told the defendant that she was conducting an investigation of alleged sexual abuse and neglect of a boy with whom the defendant had had a relationship. The defendant confessed to the social worker. Two days later, a deputy sheriff talked with the defendant in the jail after giving her Miranda warnings and obtaining a proper waiver. The defendant again confessed.
Based on evidence that the social worker was working with the sheriff’s department on the case before interviewing the defendant in jail, the court ruled that the social worker was an agent of the State and thus was required to give Miranda warnings when that interview occurred. The court upheld the admissibility of the defendant’s confession to the deputy sheriff because the confession to the social worker was not coerced; see Oregon v. Elstad, 470 U.S. 298 (1985); State v. Barlow, 330 N.C. 133 (1991). [Author’s note: The court did not discuss Illinois v. Perkins, 496 U.S. 292 (1990). If the defendant did not know that the social worker was acting on behalf of the deputy sheriff or was a government official involved in investigating or reporting criminal offenses, then the ruling in Perkins may not have required the social worker to give Miranda warnings. However, one can argue that the facts in Morrell clearly establish that the defendant knew that the social worker was a government official and that her duties included the investigation or reporting of crimes. See Mathis v. United States, 391 U.S. 1 (1968); Cates v. State, 776 S.W.2d 170 (Tex. Crim. App. 1989); State v. Nason, 981 P.2d 866 (Wash. Ct. App. 1999).]
FEDERAL APPELLATE COURTS
Alexander v. Connecticut, 917 F.2d 747 (2d Cir. 1990). The defendant was in jail awaiting trial for arson. He had requested a lawyer for the arson charge at arraignment, and the court appointed a lawyer to represent him. The lawyer told officers that the defendant did not want to be questioned further without his lawyer present. The officers suspected that the defendant had committed a murder, for which the defendant had not been charged. A friend of the defendant, acting at the officers’ instigation, visited the defendant in jail and obtained incriminating statements that were later used in the defendant’s murder trial. Relying on Illinois v. Perkins, 496 U.S. 292 (1990), discussed above, the court ruled that regardless of whether the defendant properly invoked his Fifth Amendment right to counsel, the officers did not violate that right because their conduct was not prohibited by the Miranda ruling (that is, there was no interrogation by a law enforcement officer in this case; the defendant simply had a noncoercive conversation with a friend). There also was no violation of the defendant’s Sixth Amendment right to counsel because the defendant had not been charged with the murder when the conversation occurred. See also Salkil v. Delo, 990 F.2d 386 (8th Cir. 1993) (similar ruling); United States v. Ingle, 157 F.3d 1147 (8th Cir. 1998) (no Miranda warnings required when government encouraged defendant’s fellow jail inmates to elicit incriminating statements from defendant); United States v. Cook, 599 F.3d 1208 (10th Cir. 2010) (no Fifth Amendment Miranda violation when defendant in detention facility asserted right to counsel and right to remain silent and later a cellmate at instigation of government had conversation with defendant, who was unaware that cellmate was government agent; defendant was not subject to custodial interrogation).
The Meaning of “Custody” under Miranda
(This topic is discussed in the chapter text under “The Meaning of ‘Custody.’ ”)
Generally
United States Supreme Court
J.D.B. v. North Carolina, 564 U.S. 261 (2011). A 13-year-old juvenile, a seventh-grade student in middle school, was a suspect in two house break-ins. An officer went to the juvenile’s school, where the school resource officer removed the juvenile from class and brought him to a conference room. The officer questioned the juvenile in the presence of the school resource officer, an assistant principal, and an administrative intern. Before being questioned, the juvenile was not given Miranda warnings, nor was he informed that he was free to leave the room. Based on these and other facts, the North Carolina Supreme Court ruled that the juvenile was not in custody so as to require Miranda warnings. The court declined to consider the juvenile’s age in making the custody determination.
The United States Supreme Court disagreed with the North Carolina Supreme Court’s view on the age issue. It ruled that the age of a juvenile (a person under 18 years old) is a factor that must be considered in making the objective determination as to whether the juvenile is in custody, as long as the juvenile’s age is known or reasonably apparent to an officer. (The Court cautioned, however, that a juvenile’s age will not necessarily be a determinative, or even a significant, factor in every case.) The Court reasoned that a juvenile will often feel bound to submit to law enforcement questioning when an adult in the same circumstances would not. The Court also clearly indicated that the actual age of the juvenile must be considered, because a young juvenile may be more susceptible than an older juvenile. The Court stated that officers and judges “simply need the common sense to know that a 7-year-old is not a 13-year-old and neither is an adult.” Id. at 280. The Court did not determine whether the juvenile in this case was in custody. Instead, it remanded the case to the North Carolina Supreme Court to make that determination.
[Author’s note: The Court distinguished a contrary statement on the juvenile age issue in Yarborough v. Alvarado, 541 U.S. 652 (2004). However, the Court effectively reaffirmed Yarborough to the extent that Yarborough ruled that a suspect’s prior interrogation history with law enforcement is irrelevant in determining custody under Miranda.]
Thompson v. Keohane, 516 U.S. 99 (1995). A state court’s ruling on whether a defendant was in custody under Miranda is not entitled to a presumption of correctness under federal habeas corpus review. Such a ruling resolves mixed questions of law and fact and therefore warrants de novo review by a federal habeas court.
Stansbury v. California, 511 U.S. 318 (1994). In determining whether a suspect was in custody so that an officer was required to have given Miranda warnings before conducting an interrogation, the California Supreme Court considered as a factor whether the officer’s investigation had focused on the suspect. Relying on its prior rulings—including Beckwith v. United States, 425 U.S. 341 (1976); Berkemer v. McCarty, 468 U.S. 420 (1984); California v. Beheler, 463 U.S. 1121 (1983); and Minnesota v. Murphy, 465 U.S. 420 (1984)—the Court rejected that factor in determining custody. The Court noted that the determination of custody depends on the objective circumstances of the interview, not on the subjective views of the interrogating officers or the person being questioned. An officer’s views concerning the nature of an interrogation or beliefs concerning the potential culpability of the person being questioned may be one of many factors in determining the custody issue, but only if the officer’s views or beliefs are somehow manifested to the person and would have affected how a reasonable person in that position would perceive his or her freedom to leave.
The Court noted that even a clear statement from an officer that the person is a prime suspect is not itself dispositive of the custody issue because some suspects are free to come and go until an officer decides to make an arrest. The Court also noted that an officer’s undisclosed views may be relevant in testing the credibility of the officer’s account of what happened during an interrogation, but it is the objective surroundings, not any undisclosed views, that control the custody issue.
Pennsylvania v. Bruder, 488 U.S. 9 (1988). An officer stopped the defendant for a red-light violation, smelled alcohol on the defendant’s breath, and saw him stumble. The officer administered field sobriety tests, asked the defendant to recite the alphabet, and then asked him about his use of alcohol, to which the defendant answered that he had been drinking and was returning home. The officer then arrested the defendant, placed him in his police car, and gave him Miranda warnings. Following Berkemer v. McCarty, 468 U.S. 420 (1984), discussed immediately below, the Court ruled that the defendant was not in custody until he was arrested.
Berkemer v. McCarty, 468 U.S. 420 (1984). The Miranda rule does not apply to roadside questioning of a motorist who is stopped for a routine traffic stop because the motorist is not in custody. If a motorist later is subjected to actions that cause him or her to be in custody, then the Miranda rule applies. In this case, a law enforcement officer saw the defendant’s car weaving in and out of a lane on an interstate highway. After following the car for two miles, the officer forced the defendant to stop and asked him to get out of the car. When the defendant got out, the officer noticed that he had difficulty standing. The officer then apparently decided to arrest and charge the defendant, but he did not communicate his intention to the defendant. Instead, he asked the defendant to perform a field sobriety test, which the defendant could not do without falling. When the officer asked him whether he had been using intoxicants, the defendant replied that he had drunk some beers and had smoked some marijuana a short time before. The defendant’s speech was slurred. The officer then formally arrested him and took him to jail.
The Court ruled that the defendant was not in custody under Miranda until the officer formally arrested him. Therefore, the officer did not have to give the Miranda warnings until then. The Court stated that (1) the initial stop of the car did not, by itself, render the defendant in custody; (2) at no time between the initial stop and the arrest was the defendant subjected to restraints comparable to a formal arrest; (3) only a short time elapsed between the stop and the arrest; and (4) the officer’s unarticulated intention to arrest the defendant after he stepped out of the car was irrelevant in considering whether the defendant was in custody—the only relevant inquiry is “how a reasonable [person] in the [defendant’s] position would have understood [the] situation”—that is, whether a “reasonable person” would have understood that his or her freedom of movement was restrained to a degree associated with a formal arrest. Id. at 442 (footnote omitted). The officer’s later questioning of the defendant beside his car and his request that the defendant perform a simple balancing test were not acts functionally equivalent to a formal arrest.
[Author’s note: Several cases provide an excellent analysis of the distinction between a seizure under the Fourth Amendment for an investigatory stop and custody under the Fifth Amendment for Miranda purposes; see United States v. Streifel, 781 F.2d 953 (1st Cir. 1986), later ruling sub nom. United States v. Quinn, 815 F.2d 153 (1st Cir. 1987); United States v. Bengivenga, 845 F.2d 593 (5th Cir. 1988) (en banc); United States v. Ventura, 85 F.3d 708 (1st Cir. 1996), later appeal, 132 F.3d 844 (1st Cir. 1998). See also United States v. Gale, 952 F.2d 1412 (D.C. Cir. 1992) (asking a few brief questions during an investigatory stop was proper without giving Miranda warnings); State v. Sykes, 285 N.C. 202 (1974), and State v. Hayes, 273 N.C. 712 (1968) (motor vehicle cases decided before Berkemer but consistent with it); State v. Braswell, 312 N.C. 553 (1985) (officers’ subjective intent to arrest defendant is irrelevant in determining custody); United States v. Boucher, 909 F.2d 1170 (8th Cir. 1990) (defendant was not in custody while sitting in officer’s car while officer wrote speeding citation; fact that officer had probable cause to arrest him for carrying concealed weapon, when defendant did not know of officer’s intention to arrest, did not constitute custody so as to require Miranda warnings); United States v. McDowell, 918 F.2d 1004 (1st Cir. 1990) (defendant, who unknowingly was talking to undercover officer with an arrest warrant for the defendant in his pocket, was not in custody); United States v. Randle, 966 F.2d 1209 (7th Cir. 1992) (defendant’s subjective beliefs as to whether he was in custody were insufficient to establish that he was in custody).]
Minnesota v. Murphy, 465 U.S. 420 (1984). A probationer was not in custody under the Miranda rule when he met with his probation officer in her office. See also United States v. Davis, 919 F.2d 1181 (6th Cir. 1990) (defendant was not entitled to Miranda warnings during pre-sentence interview with probation officer); United States v. Rogers, 921 F.2d 975 (10th Cir. 1990) (similar ruling); United States v. Nieblas, 115 F.3d 703 (9th Cir. 1997) (alleged Miranda violation does not bar admission of statement to probation officer that is admitted in probation revocation hearing); United States v. Howard, 115 F.3d 1151 (4th Cir. 1997) (defendant was not in custody while being interviewed by law enforcement officers in probation office after defendant had voluntarily surrendered to probation officer for violation of probation terms).
California v. Beheler, 463 U.S. 1121 (1983). The defendant voluntarily agreed to accompany officers to their station house, and they told him that he was not under arrest. After about thirty minutes of questioning, the officers permitted the defendant to go home. The Court ruled that the defendant was not in custody under the Miranda rule and that, therefore, his statements to the officers were admissible at trial even though he did not receive Miranda warnings.
Oregon v. Mathiason, 429 U.S. 492 (1977). In determining whether a person is in custody under the Miranda rule, the question is whether the person has been formally arrested or restrained in his or her freedom of movement to a degree associated with a formal arrest. In this case, an officer suspected that the defendant had committed a burglary. He left a note at the defendant’s apartment asking him to call him. When the defendant phoned, the officer asked him whether he would come to the State Patrol office to discuss something. When the defendant arrived, the officer told him that he was not under arrest and then questioned him about the burglary for about thirty minutes. The defendant confessed, and the officer then allowed him to leave the station. The Court ruled that the defendant was not in custody. The fact that questioning takes place in a police station or that an officer believes that the person being questioned committed an offense does not automatically trigger the need for Miranda warnings. See also State v. Jeffries, 55 N.C. App. 269 (1982); State v. Jackson, 308 N.C. 549 (1983), later appeal, 317 N.C. 1 (1986).
Beckwith v. United States, 425 U.S. 341 (1976). Two Internal Revenue Service agents, who were investigating the defendant for possible criminal tax fraud, met with him at a private residence and interviewed him. The conversation was friendly and relaxed. The Court ruled that the defendant was not in custody under the Miranda rule. The fact that the defendant was the focus of a criminal investigation is irrelevant. The issue is whether the defendant was questioned after he had been taken into custody or its equivalent. See also State v. Parrish, 32 N.C. App. 636 (1977).
Orozco v. Texas, 394 U.S. 324 (1969). The defendant argued with a person outside a cafe and shot and killed him. He then left the scene and returned to his boardinghouse. At about 4:00 a.m., four officers arrived there, were admitted by an unidentified woman, and were told that the defendant was asleep in the bedroom. All four officers entered the bedroom and began to question the defendant about the murder. The Court ruled that the defendant was in custody under the Miranda rule because the defendant would reasonably perceive the officers’ conduct as the beginning of a custodial arrest. [Author’s note: However, part of Orozco is now inconsistent with Berkemer v. McCarty, 468 U.S. 420 (1984); Orozco implied that an officer’s unarticulated belief that the defendant was under arrest is a factor in determining custody. See also United States v. Wauneka, 770 F.2d 1434 (9th Cir. 1985).]
Mathis v. United States, 391 U.S. 1 (1968). The defendant was in custody under the Miranda rule when a government agent questioned him while he was serving a sentence in a state prison. It was irrelevant that the defendant was in custody for an offense different from the one under investigation. But see United States v. Conley, 779 F.2d 970 (4th Cir. 1985) (prisoner was not in custody when he was questioned about a murder while awaiting medical treatment); United States v. Cooper, 800 F.2d 412 (4th Cir. 1986) (prisoners were not in custody under Miranda when they were questioned by a correctional treatment specialist at their request); Leviston v. Black, 843 F.2d 302 (8th Cir. 1988) (defendant, a jail inmate, was not in custody under Miranda when he requested that an officer interview him, he voluntarily went to the jail interview room to talk with the officer, and he remained free to end the conversation at any time); United States v. Willoughby, 860 F.2d 15 (2d Cir. 1988); United States v. Scalf, 725 F.2d 1272 (10th Cir. 1984); United States v. Menzer, 29 F.3d 1223 (7th Cir. 1994); Garcia v. Singletary, 13 F.3d 1487 (11th Cir. 1994).
North Carolina Supreme Court
State v. Hammonds, 370 N.C. 158 (2017). The defendant was in custody for Miranda purposes while “confined under a civil commitment order.” Id. at 159. He was a suspect in an armed robbery, but shortly after the robbery, as a result of a drug overdose, he was confined at a hospital based upon a magistrate’s determination that he was “mentally ill and dangerous to self or others.” Id. Officers questioned the defendant about the robbery without informing him of his Miranda rights, and he made incriminating statements. His motion to suppress those statements was denied by the trial court, but the state supreme court ultimately reversed. It noted that the defendant’s freedom of movement was severely restricted by the civil commitment order, that the officers failed to inform him that he was free to terminate the questioning, and that the officers indicated that they would leave only after he spoke to them about the robbery. The court ruled that, considering all the circumstances, “these statements, made to a suspect whose freedom is already severely restricted because of an involuntary commitment, would lead a reasonable person in this position to believe he ‘was not at liberty to terminate the interrogation’ without first answering his interrogators’ questions about his suspected criminal activity.” Id. at 159. For a more complete discussion of Hammonds, see Bob Farb, New North Carolina Appellate Cases on the Meaning of Custody under Miranda v. Arizona, UNC Sch. of Gov’t: N.C. Crim. L. Blog (June 14, 2016), https://nccriminallaw.sog.unc.edu/new-north-carolina-appellate-cases-meaning-custody-miranda-v-arizona/.
State v. Waring, 364 N.C. 443 (2010). The court ruled that, considering the totality of the circumstances, the defendant was not in custody when he admitted that he stabbed a victim to death. The defendant was an adult with prior criminal justice system experience. The officer who first approached the defendant told him that he was being detained until detectives arrived but that he was not under arrest. When the detectives arrived and told him that he was not under arrest, the defendant voluntarily agreed to go to the police station. The defendant was never restrained and was left alone in the interview room with the door unlocked and no guard. He was given several bathroom breaks and offered food and drink. The defendant was cooperative. The detectives did not raise their voices, use threats, or make promises; the defendant was never misled, deceived, or confronted with false evidence. Once the defendant admitted his involvement in the killing, the interview ended and he was given his Miranda rights. Although the first officer told the defendant that he was “detained,” he also told the defendant that he was not under arrest. Any custody associated with the detention ended when the defendant voluntarily accompanied detectives, who confirmed that he was not under arrest. The defendant’s inability to leave the interview room without supervision or escort did not suggest custody; the defendant was in a nonpublic area of the station and prevention of unsupervised roaming in such a space would not cause a reasonable person to think that a formal arrest had occurred.
State v. Garcia, 358 N.C. 382 (2004). Law enforcement officers responded to a call at an apartment complex clubhouse where a person had just been beaten to death. A short time later, the defendant agreed to be transported to a police station because he wanted to be there while his girlfriend was being questioned as a witness to the murder. He agreed to be patted down for weapons before he was placed in a police vehicle. Officers knew that there was an outstanding arrest warrant for the defendant (which they intended to serve on the defendant if he attempted to leave) and suspected his involvement in the murder, but they did not communicate this information to the defendant. They told him he was not under arrest. The officers found a room in the police station where the defendant could wait. A detective, not in uniform and unarmed, walked into the room, introduced himself, and thanked the defendant for coming. He asked the defendant about his recent activities and about a cut on his finger. The defendant responded to the detective’s questions. The detective told the defendant that the defendant’s information was different from information that other witnesses were providing. The defendant responded that he was telling the truth, but the detective told him that his girlfriend had “given him up.” The defendant requested a drink and a cigarette lighter and said that he had a story for the detective. The detective left the defendant alone in the room and got a lighter and a beverage for him. When the detective returned, the defendant lit a cigarette. Without receiving Miranda warnings, he then gave a detailed confession to the murder. The court ruled, distinguishing State v. Buchanan, 355 N.C. 264 (2002) (defendant was in custody after he confessed to murder when two officers accompanied him to the bathroom and one officer was in uniform and armed), that the defendant was not in custody under Miranda so as to require Miranda warnings before he confessed. The court noted, citing Stansbury v. California, 511 U.S. 318 (1994), that information that was not communicated to a defendant is not relevant to the issue of whether the defendant was in custody.
State v. Buchanan, 355 N.C. 264 (2002). On remand to determine whether the defendant was in custody so as to require Miranda warnings under the appropriate standard for custody (see State v. Buchanan, 353 N.C. 332 (2001), discussed immediately below), the trial judge ruled that the defendant was in custody when, after admitting to officers that he had participated in a murder, he was accompanied to the bathroom by the interrogating officers and an officer stayed with him at all times. The appellate court, per curiam, affirmed the trial judge’s ruling. [Author’s note: The court’s opinion did not articulate why the trial judge’s legal finding of custody was correct. It is unclear how the officers’ mere act of accompanying the defendant to the bathroom, without any restraint of the defendant beyond their presence, constituted custody under the Miranda ruling.]
State v. Buchanan, 353 N.C. 332 (2001), later ruling, 355 N.C. 264 (2002). The defendant was charged with two counts of first-degree murder. The trial judge granted the defendant’s pretrial motion to suppress his confession on the ground that the defendant was in custody when he confessed and was not given his Miranda warnings. The State appealed the judge’s ruling. The relevant facts were that an officer contacted the defendant at his job, the defendant went with him to the police station, the interrogation was conducted there, and the defendant eventually confessed. The State argued on appeal that the trial judge had applied, in determining custody under Miranda, an incorrect standard—whether a reasonable person in the defendant’s position, based on the totality of circumstances, would have felt “free to leave.” The State argued that the correct standard is whether a reasonable person would have believed that there was a “formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” Id. at 338 (internal quotation marks, citations omitted).
The state supreme court ruled that the trial judge applied the incorrect standard. The court reviewed the history of Miranda cases in the United States Supreme Court and the North Carolina Supreme Court. The court then ruled that the “appropriate inquiry in determining whether a defendant is ‘in custody’ for purposes of Miranda is, based on the totality of circumstances, whether there was a ‘formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.’ ” Id. at 339. The court noted that the “free to leave” standard is appropriate for determining whether a person has been seized under the Fourth Amendment, not for determining custody under the Miranda ruling, which is based on the Fifth Amendment. The court disavowed statements inconsistent with its ruling that have appeared in its prior cases, specifically citing State v. Jackson, 348 N.C. 52 (1998), State v. Rose, 335 N.C. 301 (1994), State v. Hicks, 333 N.C. 467 (1994), and State v. Smith, 317 N.C. 100 (1986).
The court then noted that the trial judge referred to the fact that although a law enforcement officer told the defendant that he was not under arrest and was free to leave, the officer subjectively did not intend to let the defendant leave the station after the defendant verbally confessed to the murders. The trial judge’s findings also indicated that the reason the officers did not read the defendant his Miranda warnings was because they did not want the defendant to invoke his rights, and the interrogation was intended to elicit an incriminating response from the defendant. Although it was unclear whether the trial judge’s conclusion that the defendant was in custody was based on these findings of fact, the court decided to clarify the law on these matters.
Relying on Stansbury v. California, 511 U.S. 318 (1994), and Berkemer v. McCarty, 468 U.S. 420 (1985), the court clarified that the fact that a law enforcement officer “had decided . . . during the interview that he was not going to allow defendant to leave and was going to arrest defendant at the end of the interview is irrelevant to the custody inquiry, unless those intentions were somehow manifested to defendant. The subjective unspoken intent of a law enforcement officer, provided it is not communicated or manifested to the defendant in any way, and subjective interpretation of a defendant are not relevant to the objective determination whether the totality of the circumstances support the conclusion that defendant was ‘in custody.’ ” Buchanan, 353 N.C. at 342.
Concerning the officer’s intention to obtain a confession without giving Miranda warnings because the officer did not want the defendant to invoke his rights and the fact that the interrogation was intended to elicit an incriminating response, the court noted, citing Moran v. Burbine, 475 U.S. 412 (1986), that the purpose of Miranda is to protect against coerced confessions, not to suppress voluntary confessions. Thus, the fact that the officer intended to elicit incriminating responses from the defendant through means other than coercion is irrelevant to the determination as to whether the defendant was in custody. See also United States v. Parker, 262 F.3d 415 (4th Cir. 2001) (fact that officer likely would have arrested defendant had she attempted to end interview and leave house, when officer’s view was unarticulated to defendant, was irrelevant to the determination as to whether defendant was in custody).
State v. Hipps, 348 N.C. 377 (1998). Officers had been searching all morning for Shelia Wall pursuant to a missing-person report. Later that day, an officer who was involved in the search responded to a disturbance at a store, which was not related to the missing-person report. Before the officer said anything, the defendant came up and put his hands on the police car, saying, “Go ahead and take me. I did it.” The officer responded, “What’s going on? What are you talking about?” The defendant then said, “I did it. Me and Rock.” The officers asked, “What are you talking about?” The officer then heard the defendant mumble something about “Shelia.” Wanting to clear up the matter, the officer asked the defendant, “[W]hat about Shelia, where’s she at?” The defendant then responded, “[W]e killed her. She’s under the bridge.” Id. at 397.
The court ruled, citing State v. Meadows, 272 N.C. 327 (1968), that a reasonable person in the defendant’s position would not have thought he was in custody at the time he made the incriminating statement. The court also rejected the defendant’s argument that it should consider what occurred after the defendant made the incriminating statement in determining whether the encounter was custodial; the court stated that what occurred afterward did not affect the noncustodial and voluntary nature of the encounter before and while the statement was being made.
State v. Jackson, 348 N.C. 52 (1998). Two detectives went to the defendant’s workplace and, after telling him he was not under arrest, requested that he accompany them to the sheriff’s office to answer some questions. The defendant agreed. He was told at the sheriff’s office that he was a suspect in the murder of Karen Styles. He denied any involvement. He was given Miranda rights and was again told that he was not under arrest. The defendant consented to a search of his person and the taking of fingerprints and blood and hair samples. He was again told that he was not under arrest. After the defendant had been questioned for about three hours, the sheriff entered the interrogation room and asked the defendant, “What did you do with the rifle that Karen Styles was shot with?” The defendant replied, “I think I need a lawyer present.” (A detective’s handwritten notes, taken during the interview, read, “2:04 p.m. on 12-20-94, wants a lawyer present.”) Id. at 54. In response to the defendant’s statement, the sheriff told the defendant that he did not want the defendant to answer any more questions but that he wanted to tell him something. The sheriff then stated, “Son, I know you bought the rifle and the duct tape at K-Mart on the 28th of October. I know you were in Bent Creek on the day she was killed, and that’s fine, but you need help.” The defendant then began crying and stated, “But I didn’t mean to kill nobody. I didn’t.” He continued crying and said, “I’m sorry; I didn’t mean to kill her.” Id.
The court ruled that the defendant was in custody under Miranda when he inquired about an attorney. The court stated that a reasonable person in the defendant’s position who had been interrogated for about three hours and thought the sheriff believed that he or she had committed murder would have believed that the sheriff intended to hold him or her to be prosecuted for murder. [Author’s note: The North Carolina Supreme Court in the later case of State v. Buchanan, 353 N.C. 332 (2001), expressly disavowed the “free to leave” test used in this case to determine custody under Miranda. Thus, it is unclear whether the court would now reach a different result on the custody issue.]
State v. Gaines, 345 N.C. 647 (1997). The lead investigator in a murder case instructed other investigators that any suspect interviews were to be conducted as noncustodial interviews. Suspects were not to be placed under arrest and would be free to leave, and any contact with suspects would be on a voluntary basis. The court ruled that both defendants in this case were not in custody so as to require Miranda warnings when both suspects (1) voluntarily agreed to come to the law enforcement facility from their respective homes, (2) were repeatedly told that they were not under arrest and were free to leave at any time, and (3) were provided food at the facility and were not handcuffed or restrained.
State v. Daughtry, 340 N.C. 488 (1995). The defendant voluntarily went with two officers to the police station to be questioned about a murder. The officers advised the defendant that he was not under arrest and could leave at any time. One officer advised the defendant of his Miranda rights as a precaution. The defendant waived those rights. After some conversation between the officers and the defendant, the defendant said, “I think I need to speak to a lawyer.” Id. at 505. One officer handed the defendant the telephone directory opened to the yellow pages with attorney listings. As he did so, the officer told the defendant that he could talk to a lawyer and continue to talk to the officers if he wished. The defendant briefly looked at the yellow pages and then told the officers that he was willing to talk to them. One officer reminded the defendant of his right to remain silent and his right to an attorney; the defendant indicated that he understood his rights. The defendant was not placed under arrest. He then confessed.
The court ruled that because the defendant was not in custody when he requested an attorney, his rights under Miranda and Edwards v. Arizona, 451 U.S. 477 (1981), were inapplicable. Therefore, the court did not need to decide whether the trial judge had erred in concluding that the defendant had voluntarily re-initiated interrogation after requesting an attorney. See also United States v. Muick, 167 F.3d 1162 (7th Cir. 1999) (defendant may not invoke right to counsel under Miranda unless defendant is being interrogated or interrogation is imminent; attorney may not invoke defendant’s right to counsel under Miranda).
State v. Corbett, 339 N.C. 313 (1994). The court ruled that the defendant was not in custody so as to require officers to give Miranda warnings for three interviews on three separate days. The first two interviews took place in an officer’s car at the defendant’s home. The third interview took place in the yard of the defendant’s home. The defendant then offered to take the officers to the crime scene. An officer told the defendant’s wife that the defendant was not under arrest at that time. At the crime scene, the defendant confessed to the murder. The defendant repeatedly had been told that he was not under arrest and that he would be taken home any time he so requested.
State v. Sweatt, 333 N.C. 407 (1993). The defendant was at a hospital being treated for injuries sustained in an automobile accident. An officer who had responded to the accident but who had not yet talked with the defendant went to the hospital. After a doctor alerted the officer—who by then had been informed that the defendant might have been involved in a homicide before the accident had occurred—that the defendant was saying things the officer might be interested in, the officer walked to where the defendant was being treated and asked him questions. The defendant was not in custody so as to require the officer to give the defendant Miranda warnings before questioning him. See also State v. Clark, 324 N.C. 146 (1989) (defendant in hospital for medical treatment was not in custody to require Miranda warnings when evidence showed that defendant afterward voluntarily came to police station to talk and officer made it clear that no one was forcing her to stay).
State v. Medlin, 333 N.C. 280 (1993). Atlantic Beach officers arrested the defendant in a breezeway outside a motel room in Atlantic Beach for a murder and robbery committed in Wake County, based on a mistaken belief that an arrest warrant had been issued in Wake County for these offenses. The court determined, however, that the Atlantic Beach officers had sufficient information to establish probable cause to arrest based on the facts in this case. Therefore, the warrantless arrest of the defendant was proper. When the Atlantic Beach officers learned, after they had brought the defendant to the police station, that there were no arrest warrants for him, they told him that he was not under arrest and was free to leave. They also told him that investigators were coming from Wake County and wanted to talk to him, that he could stay and move around the police station at will, and that he should let them know if he needed anything. The defendant indicated that he wanted to stay and in fact remained there and later gave statements to the officers. Based on these and other facts, the court concluded that when the defendant gave the statements to the officers, he was no longer in custody and therefore was not entitled to Miranda rights, including the right to counsel under Edwards v. Arizona, 451 U.S. 477 (1981). Therefore, the court ruled that it was unnecessary to decide whether the defendant properly waived his right to counsel.
State v. Torres, 330 N.C. 517 (1992). The defendant shot and killed her husband in their home in the early evening. Deputy sheriffs arrived to investigate the shooting. A deputy sheriff transported the defendant and her close friend to the sheriff’s department. From 7:00 p.m. to 10:00 p.m., the defendant was in the department’s conference room with that deputy sheriff, and during that time she was informed that her husband had died. Sometime during that period, the sheriff came into the room. The defendant asked him whether she needed a lawyer and was told that she did not need a lawyer right now. At about 10:00 p.m., the defendant was taken to the sheriff’s office, where she was told that she would be interviewed by two other officers. Although she was never informed that she was under arrest, she also was never told that she was free to leave. The court ruled that a reasonable person in the defendant’s position—knowing that she had just shot her spouse and having been brought to the sheriff’s department by a deputy, kept under constant supervision there, and never informed that she was free to leave—would feel compelled to stay and that the defendant was therefore in custody under Miranda.
State v. Hoyle, 325 N.C. 232 (1989). When officers went to the defendant’s home to investigate the defendant’s involvement in a homicide, he agreed to go with them to police headquarters. When the defendant went to his closet to get his coat, the officers stopped him and got his coat for him. One officer seized a pistol that was on a nearby shelf. The defendant then asked if the officers had a warrant, and they said that they did not. [Author’s note: Although it is unclear from the court’s opinion, the officers were apparently referring to an arrest warrant.] One officer told the defendant that he would obtain a warrant and that he would leave an officer at the home until it could be obtained. The defendant then went with the officers. At that point the defendant was in custody so as to require Miranda warnings. See also State v. Greene, 332 N.C. 565 (1992) (defendant was in custody in sheriff’s office when officer handcuffed him and told him he could not leave room; defendant was no longer in custody later when officers told him that he was not under arrest and was free to leave).
State v. Allen, 322 N.C. 176 (1988). The defendant was not in custody so as to require that an officer give her Miranda warnings when the defendant agreed with the officer’s request to talk at the sheriff’s department. The officer drove the defendant, her husband, and her sister-in-law to the sheriff’s department. The defendant’s minister asked to speak with the defendant and was allowed to do so. At the sheriff’s department, the officers first interviewed the defendant’s husband for thirty minutes while the defendant and her sister-in-law waited. The defendant was then informed that she did not have to talk to the officers, was twice informed that she was free to go, and was then interviewed alone for one hour and thirty-five minutes in a comfortable room.
State v. Davis, 305 N.C. 400 (1982). The defendant was not in custody under the Miranda rule when he came to the police station’s detectives’ office voluntarily, answered questions, and left. The defendant came voluntarily a second time at the officers’ request and then confessed. At all times a reasonable person in the defendant’s position would have believed that he was free to go. The court stated that, based on the facts in this case, an officer’s failure to advise the defendant that he was free to go did not adversely affect the finding that the defendant was not in custody. The court noted that the Miranda rule does not apply if an officer has given Miranda warnings unnecessarily—that is, if the warnings were given when the defendant was not subjected to custodial interrogation. See also State v. Phipps, 331 N.C. 427 (1992).
State v. Perry, 298 N.C. 502 (1979). The defendant was not in custody for purposes of the Miranda rule when a detective, who was investigating a missing-person report, went to the gas station where the defendant worked and asked him to sit inside the detective’s car and talk, and the defendant voluntarily entered the car and answered questions.
North Carolina Court of Appeals
State v. Gamez, 264 N.C. App. 467 (2019). The defendant, a U.S. Army private, was charged with second-degree murder, aiding and abetting a first-degree kidnapping, and conspiracy to kidnap. Concerning the defendant’s oral statements made to Schlegelmilch, a non-commissioned first sergeant in the U.S. Army, the court vacated and remanded because it found that the trial court (1) did not make factual findings on several issues integral to the question of whether a Miranda violation had occurred and (2) failed to fully apply the correct legal standard applicable to the issue. The defendant argued that because he was interrogated by a superior officer who had the power to arrest him, a custodial interrogation occurred. The State countered that a custodial arrest does not occur unless the soldier is questioned by a commissioned officer with independent arrest authority. Citing federal law, the court noted that a commanding officer may delegate arrest authority to a non-commissioned officer. When this has occurred, the non-commissioned officer’s interrogation of a soldier can trigger the need for Miranda warnings. Here, it is undisputed that Schlegelmilch was a non-commissioned officer. Therefore, to resolve the issue of whether the defendant was entitled to Miranda warnings, it was necessary to determine whether Schlegelmilch previously had been delegated authority to arrest the defendant by a commanding officer as authorized by federal law. However, the trial court did not make any findings as to whether such a delegation occurred. Additionally, the trial court’s order suggests that it failed to understand the potential applicability of Miranda if Schlegelmilch had, in fact, been delegated authority to arrest and then proceeded to question the defendant under circumstances amounting to custodial interrogation. Nor did the trial court make findings about the specific degree to which the defendant’s liberty had been restricted when he made the statements to Schlegelmilch. The court thus vacated the portion of the trial court’s suppression order relating to the statements and remanded for additional findings of fact and conclusions of law, along with a new hearing if necessary.
While the defendant was being held in jail after his arrest, the decision was made to initiate military discharge proceedings against him. When the defendant was delivered a notice of separation, he signed a memorandum indicating that he would not contest the proceedings. Thereafter and while in jail, he exchanged letters with Schlegelmilch. In the reply letter at issue, the defendant gave an account of the victim’s death, including inculpatory statements. The defendant argued that the letter should have been suppressed because it was a response to a letter from Schlegelmilch asking the defendant to explain how the victim had died and thus constituted a custodial interrogation. The court rejected this argument, finding that the circumstances under which the letter was written did not implicate Miranda. First, the court noted the defendant’s failure to cite any cases supporting the proposition that questioning conducted through an exchange of letters can constitute a custodial interrogation under Miranda, nor did the court’s own research reveal any legal authority for that proposition. Furthermore, the court noted, when the defendant responded to Schlegelmilch’s letter, he was in the midst of being discharged from the military and was not contesting those proceedings, and thus the circumstances “simply do not amount to the type of coercive environment that Miranda was intended to address.” Id. at 489. (footnote omitted). The court thus affirmed the trial court’s denial of the defendant’s motion to suppress concerning the letter.
State v. Parlier, 252 N.C. App. 185 (2017). In this child sexual assault case, the court rejected the defendant’s argument that his confession was obtained in violation of Miranda. During an interview at the sheriff’s department, the defendant admitted that he had had sex with the victim. The transcript and videotape of the interview was admitted at trial. The court rejected the defendant’s argument that a custodial interrogation occurred. The defendant contacted a detective investigating the case and voluntarily traveled to the sheriff’s department. After the detective invited the defendant to speak with her, the defendant followed her to an interview room. The defendant was not handcuffed or restrained, and the interview room door and hallway doors were unlocked. The defendant neither asked to leave nor expressed any reservations about speaking with the detective. A reasonable person in the defendant’s position would not have understood this to be a custodial interrogation.
State v. Portillo, 247 N.C. App. 834 (2016). The court ruled that the defendant was not in custody when he gave statements to officers at a hospital. The victim was killed in a robbery committed by the defendant and his accomplice. The defendant was shot during the incident and brought to the hospital. He sought to suppress statements he made to law enforcement officers at the hospital, arguing that they were elicited during a custodial interrogation for which he had not been given Miranda warnings. The court cited the following factors as to why the defendant was not in custody: (1) there was no evidence that the defendant knew that a guard was present when he was being interviewed; (2) the defendant was interrogated in an open area of the ICU where other patients, nurses, and doctors were located, and he had no legitimate reason to believe that he was in law enforcement custody; (3) none of the officers who were guarding the defendant spoke with him about the case before the interview; (4) the officers who questioned him wore plain clothes; and (5) there was no evidence that the defendant’s movements were restricted by anything other than the injuries he had sustained and the medical equipment connected to him.
The court rejected the defendant’s argument that the interrogation was custodial because he was under the influence of pain and other medication that could have affected his comprehension. It also rejected the defendant’s argument that he was in custody because the officers arrived at the hospital with the intention of arresting him. Although they may have had this intention, it was not made known to the defendant and thus has no bearing on whether the interview was custodial.
State v. Barnes, 248 N.C. App. 388 (2016). While the defendant was at his cousin’s house, the cousin’s parole officer came to the home to conduct a warrantless search of the residence incident to the cousin’s parole status. When the parole officer recognized the defendant as a probationer as well, he told him that he was also subject to a search based on his status. The officer put the two men in handcuffs “for officer safety” and seated them on the front porch while he and police officers conducted a search of the house. During the search, the parole officer found a jacket with what appeared to be crack cocaine inside a pocket. The officer asked the defendant and his cousin to identify the owner of the jacket. The defendant claimed the jacket and was charged with a drug offense. The court held that although the defendant was in handcuffs at the time of the questioning, he was not, based on the totality of the circumstances, “in custody” for purposes of Miranda. The court stated that “[b]ased on the totality of circumstances, we conclude that a reasonable person in Defendant’s situation, though in handcuffs would not believe his restraint rose to the level of the restraint associated with a formal arrest.” Id. at 391. The court noted that the regular conditions of probation include the requirement that a probationer submit to warrantless searches. Also, the defendant was informed that he would be placed in handcuffs for officer safety and was never told that his detention was anything other than temporary. Further, the court reasoned, “as a probationer subject to random searches as a condition of probation, Defendant would objectively understand the purpose of the restraints and the fact that the period of restraint was for a temporary duration.” Id. For a more complete discussion of Barnes, see Bob Farb, Court of Appeals Rules That Probationer Was Not in Custody When Handcuffed for Safety Reasons, UNC Sch. of Gov’t: N.C. Crim. L. Blog (July 26, 2016), https://nccriminallaw.sog.unc.edu/court-appeals-rules-probationer-not-custody-handcuffed-safety-reasons/.
State v. Crook, 247 N.C. App. 784 (2016). The court ruled that because the defendant was handcuffed and placed under arrest, the trial court erred when it concluded that the defendant was not in custody when he made a statement to a law enforcement officer.
State v. Davis, 237 N.C. App. 22 (2014). The court rejected the defendant’s argument that she was in custody within the meaning of Miranda during the last of four interviews at a police station about her missing child. It stated that the trial court properly used an objective test to determine whether the interview was custodial. Competent evidence supported the trial court’s findings of fact that the defendant was not threatened or restrained, she voluntarily went to the station, she was allowed to leave at the end of the first three interviews, the interview room door was closed but unlocked, the defendant was allowed to take multiple bathroom and cigarette breaks and was given food and drink, and the defendant was offered the opportunity to leave the fourth interview but refused.
State v. Price, 233 N.C. App. 386 (2014). The court ruled that the trial court erred by granting the defendant’s motion to suppress. A wildlife officer on patrol in a pine forest approached the defendant, who was dressed in full camouflage and carrying a hunting rifle, and asked to see his hunting license. After the defendant showed his license, the officer asked how he got to the location; he replied that his wife transported him there. The officer then asked him whether he was a convicted felon. The defendant admitted that he was. The officer seized the weapon, and the defendant was later charged with being a felon in possession of a firearm. The court ruled that the defendant was neither seized under the Fourth Amendment nor in custody under Miranda when the officer asked about his criminal history and that, therefore, the trial court erred by granting the motion to suppress.
In re A.N.C., Jr., 225 N.C. App. 315 (2013). The court ruled that a 13-year-old juvenile was not in custody within the meaning of G.S. 7B-2101 or Miranda during a roadside questioning by an officer. Responding to a report of a vehicle accident, the officer saw a wrecked vehicle, which had crashed into a utility pole, and three people walking from the scene. When the officer questioned all three, the juvenile admitted that he had been driving the wrecked vehicle. Noting that under J.D.B. v. North Carolina, 561 U.S. 261 (2011), a reviewing court must, when determining whether a suspect has been placed in custody, take into account a juvenile’s age if it was known to an officer or would have been objectively apparent to a reasonable officer, the court nevertheless concluded that the juvenile here was not in custody.
State v. Yancey, 221 N.C. App. 397 (2012). The court ruled that the juvenile defendant here was not in custody for purposes of Miranda. After the defendant had been identified as a possible suspect in several breaking or entering cases, two detectives dressed in plain clothes and driving an unmarked vehicle went to the defendant’s home and asked to speak with him. Because the defendant had friends visiting his home, the detectives asked the defendant to take a ride in their car with them. The detectives told the defendant that he was free to leave at any time, and they did not touch him. The defendant sat in the front seat of the vehicle while it was driven approximately two miles from his home. When the vehicle stopped, one of the detectives showed the defendant reports of the break-ins. The detectives told the defendant that if he was cooperative, they would not arrest him that day. The defendant admitted to committing the break-ins. The defendant was 17 years and 10 months old. Considering the totality of the circumstances—including the defendant’s age—the court concluded that the defendant was not in custody. The court rejected the argument that J.D.B. v. North Carolina, 564 U.S. 261 (2011), required a different conclusion.
State v. Hemphill, 219 N.C. App. 50 (2012). The court ruled that the defendant’s response to an officer’s questioning while on the ground and being restrained with handcuffs should have been suppressed because the defendant had not been given Miranda warnings. The officer’s questioning constituted an interrogation, and a reasonable person in the defendant’s position—having been forced to the ground by an officer with a Taser drawn and in the process of being handcuffed—would have felt that his or her freedom of movement had been restrained to a degree associated with formal arrest. Thus, there was a custodial interrogation.
State v. Hartley, 208 N.C. App. 174 (2011). The court ruled that the defendant was not in custody when he confessed to three homicides. Officers approached the defendant as he was walking on a road, confirmed his identity and that he was okay, told him that three people had been injured at his residence, and asked him if he knew anything about the situation. After the defendant stated that he did not know about it, an officer conducted a pat down of the defendant. The defendant’s clothes were damp and his hands were shaking. An officer told the defendant that he and other officers would like to talk to him about what happened and asked if the defendant would come to the fire department, which was being used as an investigation command post. The officer did not handcuff the defendant, and he told him that he was not under arrest. The defendant agreed to go with the officers, riding in the front passenger seat of their police car. The officers entered a code to access the fire department and the defendant followed them to a classroom, where he sat at one table while two officers sat across from him at a different table. The officers asked the defendant if he wanted anything to eat or drink or to use the restroom and informed him that he was not under arrest. An officer noticed cuts on the defendant’s hands and, when asked about them, the defendant stated that he did not know how he got them. Although the officer decided that she would not allow the defendant to leave, she did not tell the defendant that; rather, she said that forensic evidence would likely lead to the apprehension of the perpetrator of the murders. When she asked the defendant if there was anything else that he wanted to tell her, he confessed to the murders. Due to a concern for public safety, the officer asked where the murder weapon was located, and the defendant told her where it was. The officer then left the room to inform others about the confession while another officer remained with the defendant. The defendant then was arrested and given Miranda warnings. He was not handcuffed and remained seated at the same table. He waived his rights and restated his confession.
The court concluded that the defendant was not in custody when he gave his initial confession, noting that (1) he was twice told that he was not under arrest, and he voluntarily went to the fire department; (2) he was never handcuffed; (3) he rode in the front of the police vehicle; (4) officers asked him if he needed food, water, or use of the restroom; (5) he was never misled or deceived; (6) he was not questioned for a long period of time; and (7) the officers kept their distance during the interview and did not use physical intimidation. The court rejected the defendant’s argument that the pat-down and the officer’s subjective intent to detain him created a custodial situation. The court also rejected the defendant’s argument that the interrogation was an impermissible two-stage interrogation under Missouri v. Seibert, 542 U.S. 600 (2004), concluding that the case was distinguishable from Seibert because the defendant was not in custody when he made his first confession.
State v. Clark, 211 N.C. App. 60 (2011). The court ruled that a reasonable person in the defendant’s position would not have believed that he or she was under arrest or restrained in such a way so as to necessitate Miranda warnings. Key factors in the Miranda custody determination include whether a suspect is told that he or she is free to leave, whether he or she is handcuffed, whether he or she is in the presence of uniformed officers, and the nature of any security around the suspect. There was no evidence that officers here ever explicitly told the defendant that he was being detained. The court rejected the defendant’s argument that he was functionally arrested and thus entitled to Miranda warnings because he was moved to a patrol car and instructed to remain there when he came in contact with the victim’s father and was told to “come back and stay” when he attempted to talk to his girlfriend (the victim’s sister). The court concluded that the officers’ actions were nothing more than an attempt to control the scene and prevent emotional encounters between a suspect and members of the victim’s family. Moreover, even if the defendant was detained at the scene, his statements were untainted because a detective expressly told him that he was not under arrest, the defendant repeatedly asked to speak with the detective, and the defendant voluntarily accompanied the detective to the sheriff’s department.
State v. Little, 203 N.C. App. 684 (2010). The defendant voluntarily drove to a police station about six hours after a shooting. There was no warrant for the defendant’s arrest and the police had not attempted to contact him or request his presence for an interview. A detective who knew the defendant met him in the public lobby and invited him into a secure area that required a passkey for entry, but anyone could leave the secure area without a key. The detective patted him down for weapons (the defendant did not object to the frisk) and told him that another detective wanted to speak with him. The other detective arrived and told the defendant that he was not under arrest and was free to leave. The defendant voluntarily accompanied the second detective and another officer upstairs. The defendant was later told on two different occasions that he was not under arrest and was free to leave. Unbeknownst to the defendant, the other officer entered an adjacent room and took notes on the defendant’s interview with the detective. Also, a different detective stayed in the hallway to keep the defendant from leaving, but the defendant was unaware of the detective’s intentions. The detective began to question the defendant about his actions during the day and about the shooting. At one point, the defendant asked if he needed an attorney. The detective replied, “I don’t know, I can’t answer that for you, are you asking for one?” Id. at 686. The defendant did not reply to this question and continued talking with the detective. At another point the defendant stood up and said, “I’m trying to leave, I didn’t do it.” Id. at 689. The detective did not restrain the defendant, who then sat back down and continued talking. The defendant made inculpatory statements that he sought to suppress. The court ruled that the defendant was not in custody so as to require Miranda warnings. The facts did not show the indicia of an arrest. The court relied on State v. Gaines, 345 N.C. 647 (1997), and other cases. Also, the presence of a note-taking officer and an officer’s unarticulated determination not to let the defendant leave had no bearing on whether the defendant was in custody because the defendant was unaware of these facts.
State v. Allen, 200 N.C. App. 709 (2009). The defendant was involved in a knife fight in which the victim was killed and the defendant was stabbed. The defendant went to a hospital for treatment for his wounds (the victim was also taken to the hospital). Officers arrived there and sought to determine what had occurred. An officer spoke to the defendant intermittently for about forty minutes. The defendant was not handcuffed, nor was he told that he could not leave or that he was under arrest. The court ruled that the defendant was not in custody when the officer questioned him at the hospital, and thus Miranda warnings were not required. The court noted that any restraint in movement that the defendant may have experienced at the hospital was due to his medical treatment and not the action of law enforcement officers.
State v. Wright, 184 N.C. App. 464 (2007). The defendant, a military officer, was convicted of first-degree murder for the killing of his girlfriend’s husband. Based on the defendant’s request to see the sheriff, the sheriff and a detective went to the military brig where the defendant was being held on military charges, but those charges did not include murder. The defendant also was not then charged in state court with murder. A guard escorted the defendant—without handcuffs or shackles—to a room. The room contained a table, chairs, and a couch. The defendant sat on the couch while the sheriff and the detective sat at the table. The sheriff explained to the defendant that he was not there to question him but simply to inform him of the status of the murder investigation. The sheriff advised the defendant that if he asked a question, the defendant should not answer it. The defendant was free to leave the room at any time. The court ruled, relying on State v. Fisher, 158 N.C. App. 133 (2003), and other cases, that the defendant was not in custody so as to require Miranda warnings.
State v. Smith, 180 N.C. App. 86 (2006). The court ruled that the defendant was not in custody under Miranda when he was questioned in the sheriff’s department. An officer went to the defendant’s house and asked him to come to the sheriff’s department for questioning. The defendant came in a separate vehicle. He waited there about an hour while his wife was questioned, and he could have left at any time. He was told that he was not in custody and was offered something to drink. As the questioning began, the defendant did indicate that he wanted to speak to an attorney, but he did not stop making statements. He stood up, became very upset, and made some incriminating statements.
State v. Sutton, 167 N.C. App. 242 (2004). An officer received information from a pharmacist that the pharmacist had just filled a prescription for Oxycontin under suspicious circumstances. The officer arrived at the pharmacy’s parking lot, conducted surveillance, and observed an apparent drug sale by the defendant to another person. He then made an investigative stop of the defendant, which the court ruled was supported by reasonable suspicion. The defendant consented to a frisk and told the officer that he had two knives. The officer found two pocket knives but no contraband. When asked if he had any narcotics, the defendant said that he had just filled a prescription. The officer took a pill bottle containing tablets from the defendant and asked how many pills were in the bottle. The defendant said he had filled a prescription for 180 tablets. The officer asked again how many pills were in the bottle. The defendant responded that he had given forty-five tablets to a person in the parking lot. The court ruled, relying on State v. Benjamin, 124 N.C. App. 734 (1996), that the defendant was not in custody under Miranda so as to require the officer to give Miranda warnings when questioning the defendant during the investigative stop. See also State v. Martinez, 158 N.C. App. 105 (officer’s brief inquiry during frisk was not improper).
State v. Clark, 161 N.C. App. 316 (2003). The court ruled that the defendant was not in custody so as to require Miranda warnings when an officer questioned the defendant in his home, the defendant was told that he was not under arrest or in custody, and the defendant was not restrained in any way.
State v. Crudup, 157 N.C. App. 657 (2003). In response to a reported break-in at a house, Officer A and five or six other officers went there to investigate. As Officer A prepared to enter, the defendant exited the front door. Three officers handcuffed the defendant and detained him as a burglary suspect. Thereafter, Officer A and another officer searched the house and found cocaine but no other suspects. Officer A then asked the defendant, without giving Miranda warnings, if he resided in the house, was the only resident, and owned the possessions found on the premises. The court ruled, using the definition of “custody” in State v. Buchanan, 353 N.C. 332 (2001), that the defendant was in custody so as to require Miranda warnings before the officer’s questioning of the defendant. The handcuffed defendant was questioned while four officers surrounded him. The defendant’s freedom of movement was restrained to the degree associated with a formal arrest. A reasonable person under these circumstances would believe he was under arrest. The court ruled that the defendant’s responses to the questions had to be suppressed.
State v. Cockerham, 155 N.C. App. 729 (2003). Officers were investigating the discharge of a firearm from the defendant’s apartment that resulted in a shotgun round going through a common wall and into the adjoining apartment. The defendant let an officer into his apartment. The defendant (who was not patted down, searched, or handcuffed) sat in his living room while the officer and a second officer observed holes in the walls of both apartments and found a shotgun in the defendant’s apartment. One officer then asked the defendant what had happened. The defendant replied that some people had tried to break into his apartment. The officer then asked the defendant why he had shot at the wall. The court ruled, relying on the definition of “custody” in State v. Buchanan, 353 N.C. 332 (2001), that the defendant was not in custody so as to require Miranda warnings when the officer asked these two questions. There was no formal arrest of the defendant or restraint on his freedom of movement to the degree associated with a formal arrest.
State v. Johnston, 154 N.C. App. 500 (2002). A sheriff’s department received a 911 call that a male, driving a gray car, had fired shots into an occupied vehicle with a sawed-off shotgun. A few hours later, at the place where the shooting occurred, officers saw a gray car driving along the side of the road. With guns drawn, the officers stopped the car, asked the defendant to step out of the car, handcuffed him, and placed him in the back seat of a patrol car. The officers informed the defendant that he was not under arrest but only in “secure custody” for the defendant’s safety and the safety of others. The court ruled that the defendant was in custody under Miranda—his freedom of movement was restrained to the degree associated with a formal arrest (see State v. Buchanan, 353 N.C. 332 (2001)), and a reasonable person under these circumstances would believe he or she was under arrest.
State v. Hall, 131 N.C. App. 427 (1998), aff’d, 350 N.C. 303 (1999). The defendant voluntarily accompanied detectives to the police station after they had asked him if he would come to talk about a robbery. Although the detectives did not specifically indicate to the defendant that he was not under arrest, they did advise him that he didn’t have to stay there, telling him that they just needed him to talk to them.
The court noted that it appeared that the defendant was free to leave at any time. Citing a statement in Stansbury v. California, 511 U.S. 318 (1994) (even a clear statement by an officer that a person under interrogation is a prime suspect is not, by itself, dispositive of the custody issue because some suspects are free to come and go until officers decide to make an arrest), the court rejected the defendant’s argument that a reasonable person in the defendant’s position would not have felt free to leave when the detectives confronted him with a statement by a witness implicating him in the robbery. The court, citing and discussing statements from Oregon v. Mathiason, 429 U.S. 492 (1977), also rejected the defendant’s argument that he was in custody because he was interrogated in a coercive, police-dominated atmosphere. The court acknowledged that any time an officer interviews a suspect, there undoubtedly will be coercive aspects present. The court noted that the interrogation here lasted between one and two hours. The defendant was alert and sober. He was not restrained in any way, the door to the interrogation room was left open, and there were no threats or shows of violence or promises of leniency. The court concluded that the defendant was not in custody and that, therefore, Miranda warnings were not required.
State v. Green, 129 N.C. App. 539 (1998), aff’d, 350 N.C. 59 (1999). The defendant voluntarily left his home and went with several officers to the sheriff’s department to be interrogated about a murder. The officers told him that he was not under arrest. During seven hours of interrogation, the defendant was allowed breaks, used the restroom without being accompanied by an officer, was not handcuffed or restrained in any way, was provided or offered food several times, and was allowed to call his mother. The officers conducted a vigorous interrogation, including telling the defendant that he was lying to them. The court, distinguishing State v. Jackson, 348 N.C. 52 (1998), ruled that the defendant was not in custody and that, therefore, Miranda warnings were not required.
State v. Benjamin, 124 N.C. App. 734 (1996). An officer conducted a frisk of the defendant after an investigative stop for a traffic violation. As the officer was patting the defendant down, he felt two hard plastic containers in a breast pocket of the defendant’s winter jacket. Based on the officer’s narcotics training, it was immediately apparent that these containers were vials of the type customarily used to hold illegal drugs. When the officer felt the container through the jacket, he asked the defendant, “What is that?” The defendant responded that it was “crack.” The officer removed two vials from the coat pocket and found cocaine.
The court ruled that the defendant was not in custody so as to require Miranda warnings when the officer asked the question while conducting the frisk. The court noted that the fact that a defendant is not free to leave does not necessarily constitute custody under Miranda. Instead, the inquiry is whether a reasonable person in the defendant’s position would believe that he or she was under arrest or the functional equivalent of arrest; the court cited and discussed Stansbury v. California, 511 U.S. 318 (1994), and Berkemer v. McCarty, 468 U.S. 420 (1984). The court concluded that a reasonable person would not have believed that he or she was in custody based on these facts.
State v. Sanders, 122 N.C. App. 691 (1996). The court ruled that the following evidence supported the trial judge’s ruling that the defendant was not in custody so as to require officers to give Miranda warnings. The defendant agreed to accompany officers to the police station. Two officers were in the interview room with the defendant during the entire period of the interview, which lasted about two hours, and they were joined briefly by a third officer. The defendant was never threatened or promised that he would not be prosecuted or would obtain a lesser sentence by cooperating with the officers. He was allowed to go to the bathroom on request and was allowed a twenty-minute smoking break outside the interview room. The defendant was told he was free to leave. He asked to call his wife and was told that he could do so later. The officers confronted the defendant with physical evidence that had been found at the crime scene. The officers falsely told him that the victim had identified him as the person who beat and robbed him. The defendant admitted robbing and beating the victim but consistently denied that he had used a weapon. See also State v. Jones, 153 N.C. App. 358 (2002) (defendant with limited mental capacity who agreed to leave school and go to police department for questioning was not in custody so as to require Miranda warnings).
State v. Soles, 119 N.C. App. 375 (1995). Officers took the defendant, with his consent, to Gastonia, North Carolina, for questioning. The defendant was not handcuffed during a four-hour interview, was left alone, and was allowed to use the vending machines. The defendant conceded on appeal that he was free to leave and voluntarily gave a statement to the officers. The court ruled that the defendant was not in custody so as to require Miranda warnings. At a second interview six days later, a polygraph examiner confronted the defendant about patterns of deception and questioned him in addition to the polygraph testing. The operator had given Miranda warnings to the defendant and obtained a waiver before the testing. In any event, the court ruled that the defendant was not in custody so as to require Miranda warnings because the defendant had voluntarily come to the police station for the polygraph and was free to leave at any time. The court also ruled, based on the facts in this case, that the defendant’s second statement was voluntarily given.
State v. Dukes, 110 N.C. App. 695 (1993). Officer Moore arrived at a trailer park to investigate the murder of the defendant’s wife. Both the defendant and a baby he was holding had blood on their clothing. Officer Moore accompanied the defendant and the baby to the defendant’s trailer (the defendant lived in a different trailer than his wife). Officer Moore instructed Officer Thompson to guard the defendant, not allow him to leave his trailer, not allow any other person to enter the trailer, and not allow the defendant to wash or to change his clothes. Officer Thompson allowed the defendant to make telephone calls after he asked permission to do so. Officer Thompson accompanied the defendant to the bathroom to ensure that he did not wash or change his clothes. Officer Thompson later asked the defendant, “Do you know what happened?”
(1) The court ruled that the defendant was in custody so as to require Miranda warnings while he was at his trailer with Officer Thompson. A reasonable person who knew that his wife had just been killed and who was being kept under constant police supervision, who had been told not to wash or change his clothing, and who was never informed that he was free to leave his own home would not feel free to get up and go. The court also ruled that the officer’s question constituted interrogation under the Miranda ruling. (2) The defendant was later arrested and taken to a law enforcement center. While the officer was advising the defendant of his Miranda rights, the defendant said, “I stabbed her.” The court ruled that this statement was voluntary and not the result of custodial interrogation.
State v. Beckham, 105 N.C. App. 214 (1992). During the execution of a drug search warrant for a house, officers pushed the defendant to the floor and handcuffed him. The officers read the search warrant to the defendant and gave him a copy of the warrant. An officer began questioning the defendant without giving Miranda warnings. The court ruled that the defendant was in custody so as to require Miranda warnings before questioning could begin.
State v. Chappell, 24 N.C. App. 656 (1975). An officer arrived at a home to investigate a reported shooting. The defendant allowed the officer inside. In responding to the officer’s question about who was shot, the defendant pointed toward the deceased’s body. The officer then asked, “Where is the gun?” The defendant directed him to a bedroom dresser drawer, where the officer found a pistol. The officer then asked what had happened, and the defendant replied, “I shot the son of a bitch. He deserved what he got and I would do it again.” Id. at 657. The court ruled that the defendant was not in custody when the officer asked these questions. See also State v. Bacon, 326 N.C. 404 (1990) (defendant was not in custody when he invited officers into his home and conversation between defendant and officers was cordial); State v. Holsclaw, 42 N.C. App. 696 (1979).
Federal Appellate Courts
Booker v. Ward, 94 F.3d 1052 (7th Cir. 1996). The mere giving of Miranda warnings when they are not required does not transform noncustodial questioning into nonconsensual custodial interrogation. See also State v. Davis, 305 N.C. 400 (1982) (similar ruling); Davis v. Allsbrooks, 778 F.2d 168 (4th Cir. 1985) (similar ruling); Sprosty v. Buchler, 79 F.3d 635 (7th Cir. 1996).
United States v. Ritchie, 35 F.3d 1477 (10th Cir. 1994). The defendant was not in custody so as to require officers to give him Miranda warnings when the officers detained him during the execution of a search warrant of his residence. The officers did not draw their guns, use handcuffs, or otherwise use force or the threat of force during questioning.
United States v. Perdue, 8 F.3d 1455 (10th Cir. 1993). The intrusiveness of an investigative stop required officers in this case to give the defendant Miranda warnings before questioning him. The officers had forced the defendant out of his car at gunpoint, required him to lie on the ground, and then interrogated him without giving Miranda warnings.
United States v. Sylvester, 848 F.2d 520 (5th Cir. 1988). Officers’ questioning of defendants-hunters in an open field while issuing them citations for hunting violations did not require Miranda warnings because the defendants were not in custody. The mere fact that the defendants were requested to gather together to discuss the reason for the citations and that their vehicles were blocked by the officers’ vehicles did not make their detention comparable to a formal arrest or its functional equivalent.
Traffic Cases
United States Supreme Court
Pennsylvania v. Bruder, 488 U.S. 9 (1988). An officer stopped the defendant for a red-light violation, smelled alcohol on the defendant’s breath, and saw him stumble. The officer administered field sobriety tests, asked the defendant to recite the alphabet, and then asked him about his use of alcohol, to which the defendant answered that he had been drinking and was returning home. The officer then arrested the defendant, placed him in his police car, and gave him Miranda warnings. Following Berkemer v. McCarty, 468 U.S. 420 (1984), discussed immediately below, the Court ruled that the defendant was not in custody until he was arrested.
Berkemer v. McCarty, 468 U.S. 420 (1984). The Miranda rule does not apply to roadside questioning of a motorist who is stopped for a routine traffic stop because the motorist is not in custody. If a motorist later is subjected to actions that cause him or her to be in custody, then the Miranda rule applies. In this case, a law enforcement officer saw the defendant’s car weaving in and out of a lane on an interstate highway. After following the car for two miles, the officer forced the defendant to stop and asked him to get out of the car. When the defendant got out, the officer noticed that he had difficulty standing. The officer then apparently decided to arrest and charge the defendant, but he did not communicate his intention to the defendant. Instead, he asked the defendant to perform a field sobriety test, which the defendant could not do without falling. When the officer asked him whether he had been using intoxicants, the defendant replied that he had drunk some beers and had smoked some marijuana a short time before. The defendant’s speech was slurred. The officer then formally arrested him and took him to jail.
The Court ruled that the defendant was not in custody under Miranda until the officer formally arrested him. Therefore, the officer did not have to give the Miranda warnings until then. The Court stated that (1) the initial stop of the car did not, by itself, render the defendant in custody; (2) at no time between the initial stop and the arrest was the defendant subjected to restraints comparable to a formal arrest; (3) only a short time elapsed between the stop and the arrest; and (4) the officer’s unarticulated intention to arrest the defendant after he stepped out of the car was irrelevant in considering whether the defendant was in custody—the only relevant inquiry is “how a reasonable [person] in the [defendant’s] position would have understood [the] situation”—that is, whether a “reasonable person” would have understood that his or her freedom of movement was restrained to a degree associated with a formal arrest. Id. at 442 (footnote omitted). The officer’s later questioning of the defendant beside his car and his request that the defendant perform a simple balancing test were not acts functionally equivalent to a formal arrest.
[Author’s note: Several cases provide excellent analysis of the distinction between a seizure under the Fourth Amendment for an investigatory stop and custody under the Fifth Amendment for Miranda purposes; see United States v. Streifel, 781 F.2d 953 (1st Cir. 1986), later ruling sub nom. United States v. Quinn, 815 F.2d 153 (1st Cir. 1987); United States v. Bengivenga, 845 F.2d 593 (5th Cir. 1988) (en banc); United States v. Ventura, 85 F.3d 708 (1st Cir. 1996), later appeal, 132 F.3d 844 (1st Cir. 1998). See also United States v. Gale, 952 F.2d 1412 (D.C. Cir. 1992) (asking a few brief questions during an investigatory stop was proper without giving Miranda warnings); State v. Sykes, 285 N.C. 202 (1974), and State v. Hayes, 273 N.C. 712 (1968) (motor vehicle cases decided before Berkemer but consistent with it); State v. Braswell, 312 N.C. 553 (1985) (officers’ subjective intent to arrest defendant is irrelevant in determining custody); United States v. Boucher, 909 F.2d 1170 (8th Cir. 1990) (defendant was not in custody while sitting in officer’s car while officer wrote speeding citation; fact that officer had probable cause to arrest him for carrying concealed weapon, when defendant did not know of officer’s intention to arrest, did not constitute custody so as to require Miranda warnings); United States v. McDowell, 918 F.2d 1004 (1st Cir. 1990) (defendant, who unknowingly was talking to undercover officer with arrest warrant for the defendant in his pocket, was not in custody); United States v. Randle, 966 F.2d 1209 (7th Cir. 1992) (defendant’s subjective beliefs whether he was in custody were insufficient to establish that he was in custody).]
North Carolina Supreme Court
State v. Washington, 330 N.C. 188 (1991). The court, per curiam and without opinion, reversed the majority opinion of the North Carolina Court of Appeals, 102 N.C. App. 535 (1991) (ruling that defendant was not in custody so as to require Miranda warnings), for the reasons stated in the dissenting opinion. An officer saw the defendant driving a car with a broken headlight and other damage that indicated that it had recently been involved in an accident. The officer suspected that the car had been involved in a hit-and-run accident and therefore stopped it. The defendant got out of the car and met the officer in front of the patrol car. The defendant did not have a driver’s license, and the officer placed him in the back seat of the patrol car while he checked his identity with the Division of Motor Vehicles. When he returned to the defendant’s car, the officer saw a bullet on the floorboard. The officer then returned to the patrol car and asked the defendant, who was still sitting inside, where the gun was located. [Author’s note: Neither the majority nor dissenting opinion provided the elapsed time from the defendant’s placement in the back of the patrol car to the officer’s asking the defendant a question.] After the defendant denied that there was a gun in the car and that the car was his, he also told the officer that he could search the car. The officer then searched the car and found a bag with smaller bags inside that contained a white powdery substance, which later was determined to be cocaine. The officer showed the bag to defendant and then said, “Look what I’ve got.” The defendant responded that it was only baking soda that he and a friend had been flaking. The officer asked the defendant what “flaking” meant, and the defendant responded that he had bagged up baking soda to look like cocaine in order to sell it and make a profit. The officer then placed the defendant under arrest.
The dissenting opinion, adopted by the North Carolina Supreme Court, stated that the facts of this case differed significantly from routine traffic-stop cases in which custody did not exist, citing Pennsylvania v. Bruder, 488 U.S. 9 (1988), and State v. Seagle, 96 N.C. App. 318 (1989). When the defendant in this case was stopped and placed in the back seat of a patrol car, he was not free to leave at will because the inside door handles of the backseat doors did not work. He was “in effect, incarcerated on the side of the road” and therefore was in custody when he made statements to the officer. Washington, 102 N.C. App. at 538. Also, the officer’s act of showing the defendant the bag and his words, “Look what I’ve got,” were “interrogation” under the test set out in Rhode Island v. Innis, 446 U.S. 291 (1980). Thus, the officer was required to give Miranda warnings before questioning the defendant.
North Carolina Court of Appeals
State v. Burris, 253 N.C. App. 525 (2017). The court ruled that the defendant was not in custody for Miranda purposes just because an officer had detained him and was in possession of his license. The matter arose when a detective responded to a suspicious-person call at a hotel and found the defendant in the driver’s seat of a vehicle parked under an overhang. The detective smelled an odor of alcohol and was also concerned about similarities to a robbery that had recently occurred at a nearby hotel. Accordingly, he asked the defendant for identification, then held the defendant’s license and instructed the defendant to “hold tight.” During the resulting detention, the defendant admitted to driving the vehicle, a fact that became important when he was eventually charged with DWI. He moved to suppress statements he made during that detention, arguing that he had been subjected to custodial interrogation without being given his Miranda warnings. Both the trial judge and the court of appeals disagreed, with the latter noting that the defendant had erroneously conflated the Miranda custody standard (whether the suspect has been restrained to a degree associated with an arrest) with the standard for a seizure (whether the suspect is free to leave). Here, the defendant was standing outside of his own vehicle while speaking with the detective. He was not handcuffed or told that he was under arrest, and other than his license being retained, his movement was not stopped or limited further. No mention of any possible suspicion of the defendant being involved in criminal activity, impaired driving or otherwise, had yet been made. A reasonable person in these circumstances would not have believed that he or she was under arrest at the time.
State v. Beasley, 104 N.C. App. 529 (1991). A trooper stopped a speeding car. When the defendant-driver stepped out of the car, the trooper noticed a strong odor of alcohol on his breath and saw three or four empty beer cans on the car’s floorboard. The defendant swayed as he stood, and his eyes appeared red and glassy. The trooper told the defendant to have a seat in the patrol car and informed him why he had been stopped. He asked the defendant how much he had been drinking, and the defendant replied that he had had one drink. The trooper then told the defendant that he was under arrest for impaired driving.
The court ruled that the defendant was not in custody under Miranda until he was informed that he was under arrest. It was not reasonable to believe that he was deprived of his freedom of movement in any significant way. The court stated that during a traffic stop, a driver is not in custody when the driver is asked a moderate number of questions and is not informed that the detention will be other than temporary.
State v. Seagle, 96 N.C. App. 318 (1989). Relying on Berkemer v. McCarty, 468 U.S. 420 (1984), the court ruled that the defendant was not in custody so as to require Miranda warnings when the officer stopped him near the scene of a one-car accident and asked him questions, including whether the defendant was the driver of the car involved in the accident. The defendant had been detained only for a few minutes and had not been placed under arrest. See also State v. Kincaid, 147 N.C. App. 94 (2001) (defendant who was detained during traffic stop was not in custody so as to require Miranda warnings).
Federal Appellate Courts
United States v. Sullivan, 138 F.3d 126 (4th Cir. 1998). Following a traffic stop and after its purpose had been served (checking the defendant’s license and registration and returning them to him), an officer asked the defendant whether he had anything illegal in the car. When the defendant did not directly answer, the officer repeated the question several times. During this dialogue, which lasted less than a minute, the officer advised the defendant that it would be better “to tell me now” and that he “would be cool” with the defendant. The questions culminated with the defendant’s admission that he had a gun under the front seat. The court ruled that the defendant was not in custody under Miranda. The court stated that the mere fact that the officer did not affirmatively advise the defendant that he could refuse to answer the officer’s questions or that he was free to leave did not transform the encounter into a custodial interrogation.
Prisoners and Jail Inmates
UNITED STATES SUPREME COURT
Howes v. Fields, 565 U.S. 499 (2012). The United States Supreme Court ruled that a federal appellate court erroneously concluded that a prisoner was in custody under Miranda when the prisoner was taken aside and questioned about events that occurred outside the prison. The prisoner (Fields) was escorted by a correction officer to a conference room where two sheriff’s deputies questioned him about allegations that, before he came to prison, he had engaged in sexual conduct with a 12-year-old boy. To get to the conference room, Fields had to go down one floor and pass through a locked door that separated two sections of the facility. Fields arrived at the conference room between 7:00 and 9:00 p.m. and was questioned for about five to seven hours. At the beginning of the interview, Fields was told that he was free to leave and return to his cell. Later, he was again told that he could leave whenever he wanted. The interviewing deputies were armed, but Fields remained free of handcuffs and other restraints. The door to the conference room was sometimes open and sometimes shut. About halfway through the interview, after Fields had been confronted with the allegations of abuse, he became agitated and began to yell. One of the deputies, using an expletive, told Fields to sit down and said that “if [he] didn’t want to cooperate, [he] could leave.” Id. at 516. Fields eventually confessed to engaging in sex acts with the boy. Fields asserted that he said several times during the interview that he no longer wanted to talk to the deputies but that he did not ask to go back to his cell before the interview ended. When he was eventually ready to leave, he had to wait an additional twenty minutes or so because an officer had to be called to escort him back to his cell, and he did not return to his cell until well after the time he generally went to bed. Fields was never given Miranda warnings or advised that he did not have to speak with the deputies. Fields was charged with criminal sexual conduct. He unsuccessfully moved to suppress his confession, and the jury convicted him of criminal sexual conduct. After an unsuccessful direct appeal, Fields filed for federal habeas relief. The federal district court granted relief and the Sixth Circuit affirmed, ruling that the interview was a custodial interrogation because isolation from the general prison population, combined with questioning about conduct occurring outside the prison, made any interrogation automatically custodial. Reversing, the Supreme Court stated: “[I]t is abundantly clear that our precedents do not clearly establish the categorical rule on which the Court of Appeals relied, i.e., that the questioning of a prisoner is always custodial when the prisoner is removed from the general prison population and questioned about events that occurred outside the prison.” “On the contrary,” the Court stated, “we have repeatedly declined to adopt any categorical rule with respect to whether the questioning of a prison inmate is custodial.” Id. at 505. The Court ruled that based on the facts presented, Fields was not in custody under Miranda.
Mathis v. United States, 391 U.S. 1 (1968). The court ruled that the defendant was in custody under the Miranda rule when a government agent questioned him while he was serving a sentence in a state prison. It was irrelevant that the defendant was in custody for an offense different from the one under investigation. But see United States v. Conley, 779 F.2d 970 (4th Cir. 1985) (prisoner was not in custody when he was questioned about a murder while awaiting medical treatment); United States v. Cooper, 800 F.2d 412 (4th Cir. 1986) (prisoners were not in custody under Miranda when they were questioned by a correctional treatment specialist at their request); Leviston v. Black, 843 F.2d 302 (8th Cir. 1988) (defendant, a jail inmate, was not in custody under Miranda when he requested that an officer interview him, he voluntarily went to the jail interview room to talk with the officer, and he remained free to end the conversation at any time); United States v. Willoughby, 860 F.2d 15 (2d Cir. 1988); United States v. Scalf, 725 F.2d 1272 (10th Cir. 1984); United States v. Menzer, 29 F.3d 1223 (7th Cir. 1994); Garcia v. Singletary, 13 F.3d 1487 (11th Cir. 1994).
NORTH CAROLINA COURT OF APPEALS
State v. Briggs, 137 N.C. App. 125 (2000). The defendant, a prisoner, was placed in segregation lockup pending the investigation of a rule violation for allegedly sending a threatening letter to a person outside the prison. The defendant was required to go from his cell to a correctional unit manager’s office for questioning about the matter. He was escorted by another correctional officer and wore waist chains and handcuffs. Once inside the office, the defendant denied writing the letter. The manager told him that he believed that the defendant had written the letter and would proceed administratively. The defendant stood up and said that he did not have anything else to say. He then got up to leave the office. When he reached the open door, he asked the manager if he could close it. After the manager said that he could, the defendant closed the door, sat back down, and admitted that he wrote the letter. He then got up and was escorted back to his cell.
The court ruled, citing United States v. Conley, 779 F.2d 970 (4th Cir. 1985), that an inmate is not, because of his or her incarceration, automatically in custody under Miranda; rather, whether an inmate is in custody must be determined by considering his or her freedom to depart from the place of interrogation. Based on these facts, the court ruled that the defendant was not in custody so as to require Miranda warnings. The court noted that the defendant remained free not to talk and could leave the office and return to his cell at any time. [Author’s note: The State had conceded at trial that the defendant’s statements were the result of interrogation, so the court did not address that issue.]
Juveniles
UNITED STATES SUPREME COURT
J.D.B. v. North Carolina, 564 U.S. 261 (2011). A 13-year-old juvenile, a seventh-grade student in middle school, was a suspect in two house break-ins. An officer went to the juvenile’s school, where the school resource officer removed the juvenile from class and brought him to a conference room. The officer questioned the juvenile in the presence of the school resource officer, an assistant principal, and an administrative intern. Before being questioned, the juvenile was not given Miranda warnings, nor was he informed that he was free to leave the room. Based on these and other facts, the North Carolina Supreme Court ruled that the juvenile was not in custody so as to require Miranda warnings. The court declined to consider the juvenile’s age in making the custody determination.
The United States Supreme Court disagreed with the North Carolina Supreme Court’s view on the age issue. It ruled that the age of a juvenile (a person under 18 years old) is a factor that must be considered in making the objective determination as to whether the juvenile is in custody, as long as the juvenile’s age is known or reasonably apparent to the officer. (The Court cautioned, however, that a juvenile’s age will not necessarily be a determinative, or even a significant, factor in every case.) The Court reasoned that a juvenile will often feel bound to submit to law enforcement questioning when an adult in the same circumstances would not. The Court also clearly indicated that the actual age of the juvenile must be considered because a young juvenile may be more susceptible than an older juvenile. The Court stated that officers and judges “simply need the common sense to know that a 7-year-old is not a 13-year-old and neither is an adult.” Id. at 280. The Court did not determine whether the juvenile in this case was in custody. Instead, it remanded the case to the North Carolina Supreme Court to make that determination.
[Author’s note: The Court distinguished a contrary statement on the juvenile age issue in Yarborough v. Alvarado, 541 U.S. 652 (2004). However, the Court effectively reaffirmed Yarborough to the extent that Yarborough ruled that a suspect’s prior interrogation history with law enforcement is irrelevant in determining custody under Miranda.]
NORTH CAROLINA COURT OF APPEALS
In re A.N.C., Jr., 225 N.C. App. 315 (2013). The court ruled that a 13-year-old juvenile was not in custody within the meaning of G.S. 7B-2101 or Miranda during a roadside questioning by an officer. Responding to a report of a vehicle accident, the officer saw a wrecked vehicle, which had crashed into a utility pole, and three people walking from the scene. When the officer questioned all three, the juvenile admitted that he had been driving the wrecked vehicle. Noting that under J.D.B. v. North Carolina, 564 U.S. 261 (2011), a reviewing court must, when determining whether a suspect has been placed in custody, take into account a juvenile’s age if it was known to an officer or would have been objectively apparent to a reasonable officer, the court nevertheless concluded that the juvenile here was not in custody.
State v. Yancey, 221 N.C. App. 397 (2012). The court ruled that the juvenile defendant here was not in custody for purposes of Miranda. After the defendant had been identified as a possible suspect in several breaking or entering cases, two detectives dressed in plain clothes and driving an unmarked vehicle went to the defendant’s home and asked to speak with him. Because the defendant had friends visiting his home, the detectives asked the defendant to take a ride in their car with them. The detectives told the defendant that he was free to leave at any time, and they did not touch him. The defendant sat in the front seat of the vehicle while it was driven approximately two miles from his home. When the vehicle stopped, one of the detectives showed the defendant reports of the break-ins. The detectives told the defendant that if he was cooperative, they would not arrest him that day. The defendant admitted to committing the break-ins. The juvenile was 17 years and 10 months old. Considering the totality of the circumstances—including the defendant’s age—the court concluded that the defendant was not in custody. The court rejected the argument that J.D.B. v. North Carolina, 564 U.S. 261 (2011), required a different conclusion.
In re K.D.L., 207 N.C. App. 453 (2010). The court ruled that the trial court erred by denying a juvenile’s motion to suppress when the juvenile’s confession was made in the course of custodial interrogation but without the warnings required by Miranda and G.S. 7B-2101(a) and without his being informed of and afforded his right to have a parent present. The court found that the juvenile was in custody, noting that he knew that he was suspected of a crime; he was questioned by a school official for about six hours, mostly in the presence of an armed police officer; and he was frisked by the officer and transported in the officer’s vehicle to the principal’s office where he remained alone with the officer until the principal arrived. Although the officer was not with the juvenile at all times, the juvenile was never told that he was free to leave. Furthermore, the court ruled that although the principal, not the officer, asked the questions, an interrogation occurred, noting that the officer’s conduct significantly increased the likelihood that the juvenile would produce an incriminating response to the principal’s questioning. The court concluded that the officer’s near-constant supervision of the juvenile’s interrogation and “active listening” could cause a reasonable person to believe that the principal’s interrogation was done in concert with the officer or that the person would endure harsher criminal punishment for failing to answer. See also In re D.A.H., 277 N.C. App. 16 (2021) (court ruled that student underwent custodial interrogation by principal when interrogated by principal in presence of student resource officer; court sets out factors for deciding whether custody and interrogation of student had occurred).
In re L.I., 205 N.C. App. 155 (2010). The juvenile was a passenger in a vehicle stopped by an officer. When the officer ordered the juvenile out of the vehicle, he asked, “[Where is] the marijuana I know you have[?]” Id. at 157. The juvenile turned away and appeared to reach into her pants. When the officer tried to see what the juvenile was reaching for, she told him that he could not look in her pants. After handcuffing and placing the juvenile in the back of the patrol car, the officer—without giving Miranda and juvenile statutory warnings—told her that he was going to “take her downtown” and that “if [she] t[ook] drugs into the jail it[] [would be] an additional charge.” Id. The juvenile shortly thereafter told the officer that she had marijuana and that it was in her coat pocket. The court ruled, relying on State v. Johnston, 154 N.C. App. 500 (2002), that the juvenile was in custody when the officer spoke to her. The officer had placed her in investigative detention, handcuffed her, and placed her in the back seat of his vehicle.
In re W.R., 179 N.C. App. 642 (2006). As a result of information that the juvenile in this case, a 14-year-old middle-school student, might have brought a knife to school, an assistant principal took the juvenile out of his classroom and to her office. The principal and assistant principal questioned him for a while and then a law enforcement officer (a school resource officer) joined in the questioning. The officer also conducted a search of the juvenile’s pockets for weapons. None were found. The questioning took about thirty minutes, and during the exchange the juvenile admitted possessing a knife at school on the prior day. The juvenile was never left unsupervised during questioning, and the officer was there for most of that time period, with the juvenile under his supervision while the principal and assistant principal left the office to conduct the investigation. The court ruled, distinguishing In re Phillips, 128 N.C. App. 732 (1998) (juvenile was not in custody when questioned by school officials in school office and no law enforcement officers were present), that the juvenile was in custody so as to require Miranda and juvenile statutory warnings. Given the totality of circumstances, a reasonable person in the juvenile’s position would have believed that he or she was restrained to a degree associated with a formal arrest.
In re Hodge, 153 N.C. App. 102 (2002). A juvenile was not in custody so as to require juvenile interrogation rights when a detective spoke to the juvenile, his mother, and the juvenile’s brother in the living room of their home as a result of an allegation made by the brother. The detective prefaced her interview with the juvenile by telling him that he did not have to talk to her and she was not going to arrest him.
State v. Harvey, 78 N.C. App. 235 (1985). Two officers went to the defendant’s home around 9:00 a.m. and asked his mother if her son, who was a 17-year-old with limited mental capacity (IQ of 78), could ride with them. The officers took the defendant directly to the police department and interrogated him for an hour about two break-ins of the home of the defendant’s uncle. The defendant repeatedly denied his involvement in the crimes despite the officers’ vigorous interrogation. The court ruled that the defendant was in custody so as to require Miranda warnings before interrogation began. The defendant, who was young and had limited mental capacity, was taken far from his home, placed in a closed office with two officers, subjected to lengthy interrogation, and never told that he was not under arrest, that he was free to leave, or that he could end the questioning at any time.
Military Personnel
NORTH CAROLINA COURT OF APPEALS
State v. Walker, 167 N.C. App. 110 (2004). The defendant, a U.S. Marine, was given Miranda warnings by a deputy sheriff and military investigator before being questioned about a robbery. The next day, the defendant’s military superior, a master gunnery sergeant, asked the defendant why he had been questioned the prior day, if he had anything to do with “this mess,” and if he was carrying a weapon during the incident involving the robbery. The questioning took place in the sergeant’s office. There was no evidence that the defendant felt that he could not leave or that he had to answer the sergeant’s questions. The court ruled that the defendant was not in custody under Miranda based on the ruling in State v. Davis, 158 N.C. 1 (2003) (discussing custody standard when military member gives statement to superior).
State v. Davis, 158 N.C. App. 1 (2003). The defendant was serving in the Marine Corps and was stationed in California. While on leave in North Carolina, he committed a murder, but he was not arrested then. The defendant returned to his Marine Corps base in California. He told his sergeant that he needed to telephone a lawyer. The sergeant asked why, but the defendant refused to talk about it. The sergeant took the defendant to his platoon sergeant, who then took the defendant to the platoon commander. The platoon sergeant told the commander that the defendant had received a phone call indicating that the sheriff’s department was on the way to arrest him and that the commander would want to hear what the defendant had to say. The defendant confirmed to the commander that his mother had called and warned him that a detective from North Carolina was coming to California because the defendant was a suspect in a murder case. The commander asked the defendant if he was involved in the murder and the defendant replied, “Sort of.” The commander then said, “Well, are you involved or not involved? Yes or no question.” The defendant replied, “Yes, I am involved.” Id. at 5. The defendant explained that he did not know the murdered man but that he had been told that the man raped his wife in North Carolina while he was in California. The defendant was then allowed to make a telephone call. The court ruled, citing cases from other jurisdictions, that the commander was conducting custodial interrogation and that the defendant’s statements were inadmissible because Miranda warnings had not been given and waived.
Polygraph Cases
NORTH CAROLINA SUPREME COURT
State v. Brewington, 352 N.C. 489 (2000). The defendant in this case involving arson and murder drove himself to the sheriff’s department, where he agreed to a polygraph examination by a State Bureau of Investigation (SBI) agent. The agent told him that the test was voluntary and that he could leave at any time. The defendant signed a polygraph examination consent form that reaffirmed that he was not in custody and was taking the examination voluntarily. The defendant was not handcuffed or restrained at any time. At the conclusion of the examination, the agent told the defendant that she did not believe he was telling the whole truth. The defendant stated that he had been present when the fire at his grandmother’s house started, but he blamed the fire on his nephew. The agent left the room and reported this statement to investigating officers. When the agent returned to the room, the defendant made an additional incriminating statement.
The court noted, citing Stansbury v. California, 511 U.S. 318 (1994), that the definitive inquiry concerning custody under Miranda is whether there was a formal arrest or restraint on the defendant’s freedom of movement of the degree associated with a formal arrest. The court ruled that the defendant was not in custody during the entire interview with the SBI agent.
State v. Hicks, 333 N.C. 467 (1993). An officer told the defendant that he was a suspect in a murder because he and the victim had broken up just before she was murdered. Officers then asked the defendant to take a polygraph test to “clear his name.” They transported the defendant, with his consent, to the State Bureau of Investigation office—over an hour’s drive from the defendant’s home—for the purpose of taking the test. Although he refused to take the polygraph test three separate times during two hours of questioning, the defendant was never taken home or offered transportation home. Although the polygraph operator informed the defendant during his explanation of the polygraph procedure that he was not under arrest, the defendant never was told that he was free to leave. After the third refusal to take the test, the defendant told the polygraph operator that he wanted to go outside with him. During a conversation in the parking lot, the defendant told the operator that he wanted to take responsibility for the murder. They came back into the building, and the operator informed two investigating officers that the defendant wanted to confess. When the defendant refused to elaborate on the details of the crime, the officers told him that he would have to tell them what had happened, including any details. The defendant then gave them the details and demonstrated how he shot the victim. After the defendant explained the details of the murder, the officers advised the defendant of his Miranda rights and obtained a valid waiver. The defendant then gave a second confession.
The court ruled that a reasonable person in the defendant’s position, knowing that he or she was a suspect in a murder case and having just stated to an officer that he or she wanted to take responsibility for a murder, would feel that he or she was compelled to stay; therefore, the defendant was in custody under Miranda immediately following that statement. [Author’s note: The North Carolina Supreme Court in the later case of State v. Buchanan, 353 N.C. 332 (2001), expressly disavowed the “free to leave” test used in this case to determine custody under Miranda. Therefore, it is unclear whether the court would now reach the same result on the custody issue.] Thus, the first confession that was taken without Miranda warnings should have been ruled inadmissible at trial. However, the court ruled that the second confession, taken after Miranda warnings had been properly given and waived, was admissible under the ruling in Oregon v. Elstad, 470 U.S. 298 (1985) (fact that voluntary confession is inadmissible because of Miranda violation does not prohibit admission of later voluntary confession given after proper Miranda warnings and waiver). The court adopted the Elstad ruling to determine alleged constitutional violations under Article I, Sections 19 and 23 of the North Carolina Constitution.
The Meaning of “Interrogation” under Miranda
(This topic is discussed in the chapter text under “The Meaning of ‘Interrogation.’ ”)
Generally
United States Supreme Court
Pennsylvania v. Muniz, 496 U.S. 582 (1990). The Court ruled that the defendant’s voluntary utterances (including his questions to an officer and his slurred speech) when he performed a physical sobriety test and during preliminaries of Breathalyzer testing were not the result of interrogation and therefore were admissible at trial.
Arizona v. Mauro, 481 U.S. 520 (1987). The defendant was arrested for the murder of his son and asserted his right to counsel after being given Miranda warnings. The defendant’s wife insisted on seeing her husband, who was being held in a police captain’s office. The officers allowed the meeting, but only on the condition that an officer could be present and the conversation could be tape recorded. The conversation between the defendant and his wife was later admitted at the defendant’s trial. The Court ruled that the officer did not engage in “interrogation” as defined in Rhode Island v. Innis, 446 U.S. 291 (1980), discussed immediately below. The Court stated, “Officers do not interrogate a suspect simply by hoping that he will incriminate himself.” Mauro, 481 U.S. at 529.
Rhode Island v. Innis, 446 U.S. 291 (1980). Interrogation, under the Miranda rule, includes not only express questioning but also the functional equivalent of questioning—that is, any words or actions by an officer (other than those normally associated with arrest and custody) that the officer should know are reasonably likely to elicit an incriminating response from the particular defendant in custody as those words or acts are perceived by that defendant. In this case, the defendant was arrested within hours after robbing a taxicab driver with a sawed-off shotgun. He was unarmed when he was arrested. After he was given Miranda warnings, he said that he wanted to speak with a lawyer. A supervisor then instructed three officers to take the defendant to the police station and told them not to question him in any way. While en route, two officers talked with each other about the missing shotgun and their concern that children from a nearby school for the disabled might find it and harm themselves. The defendant then volunteered to show them where the gun was.
The Court ruled that the officers’ conversation was not interrogation. There was nothing to suggest that the two officers should have known that their conversation between themselves was reasonably likely to elicit an incriminating response from the defendant. They had no reason to believe that the defendant was peculiarly susceptible to an appeal to his conscience about the disabled children’s safety. Nor did they know that he was unusually disoriented or upset when he was arrested. The Court also noted that the officers did not have a lengthy conversation in the defendant’s presence, nor were their remarks particularly evocative.
North Carolina Supreme Court
State v. Brewington, 352 N.C. 489 (2000). While investigating officers were giving the defendant Miranda warnings, he stated, “I believe I need to talk to a lawyer.” An officer responded, “I believe you do, too.” Another officer then asked the defendant for information to complete the defendant’s personal-history arrest form, including his date of birth, Social Security number, address, height, and weight. During this process, the defendant asked the officers, “What if I know who did it?” One officer informed the defendant that he could not talk to him because he had not waived his rights. He stated that he could not say anything to the defendant and that the defendant should say nothing to him. The officer further stated that if the defendant wanted to talk to him, he had to initiate it, and then the officer would be required to re-advise the defendant of his Miranda rights and obtain a waiver stating that the defendant did not wish to have an attorney. As the defendant continued to ask questions of the officers about the case, an officer again explained that the defendant had invoked his right to counsel and that they therefore could not talk with him. The defendant then indicated to the officers that he had changed his mind and wanted to talk with them. An officer again informed the defendant that he had invoked his right to counsel and that any decision to talk had to be his. Again, the defendant stated that he wanted to talk. He was then given Miranda warnings and waived them.
The court ruled, citing Rhode Island v. Innis, 446 U.S. 291 (1980), and State v. Ladd, 308 N.C. 272 (1983), that the officer’s questions asked to complete the arrest form were not a custodial interrogation in violation of the defendant’s assertion of his right to counsel under Edwards v. Arizona, 451 U.S. 477 (1981). The court also ruled that the defendant re-initiated interrogation after his assertion of the right to counsel.
State v. DeCastro, 342 N.C. 667 (1996). The defendant was arrested for two murders and a robbery committed during the murders in which money was taken. He requested a lawyer during custodial interrogation. He was then taken to a jail area so that his clothing could be collected as evidence. When instructed to empty his pockets, the defendant placed $13 on a bench. Officer A asked Officer B “if it was okay for [the defendant] to keep the money.” Officer B turned toward the defendant and saw some more money in the defendant’s top pocket. Before Officer B could say anything, the defendant said, “I had some of my own money, too, now.” Id. at 684.
The court ruled, relying on Rhode Island v. Innis, 446 U.S. 291 (1980), discussed above in this section under “UNITED STATES SUPREME COURT,” that the defendant’s answer was not the result of interrogation. The question by Officer A was directed toward Officer B. Furthermore, the defendant made his statement during a general conversation while turning over his clothing and property in exchange for an inmate jumpsuit. The officer’s question was not an initiation of questioning in violation of the defendant’s assertion of the right to counsel because the question was not reasonably likely to elicit an incriminating response from the defendant.
State v. Vick, 341 N.C. 569 (1995). The defendant was arrested for murder. Before Miranda warnings had been given and while he was being fingerprinted, an officer approached the defendant and told him that he would like to talk to him after the fingerprinting was complete and that he would answer any of the defendant’s questions then. The defendant indicated that he needed to talk to someone and said, “I don’t understand. Why isn’t Collette here? She was there that night with me.” Id. at 578. The court ruled that the officer’s comments were not interrogation under Rhode Island v. Innis, 446 U.S. 291 (1980), discussed above in this section under “UNITED STATES SUPREME COURT.”
State v. Washington, 330 N.C. 188 (1991). The court, per curiam and without its own opinion, reversed the majority opinion, 102 N.C. App. 535 (1991), of the court of appeals for the reasons stated in the dissenting opinion of the court of appeals. The dissenting opinion concluded that an officer’s act of showing the defendant (who was in custody in the officer’s vehicle) a bag containing a white powdery substance and the officer’s words, “Look what I’ve got,” were interrogation under Rhode v. Innis, 446 U.S. 291 (1980), discussed above in this section under “UNITED STATES SUPREME COURT.”
State v. Edgerton, 328 N.C. 319 (1991). As an officer attempted to advise the defendant of his Miranda rights, the defendant spontaneously began to make a statement. The court ruled that the statement was admissible at trial because it was not made as a result of interrogation.
State v. Clark, 324 N.C. 146 (1989). The defendant expressed reservations as to whether she should talk with officers without first contacting an attorney because she did not know what to do. She indicated that she wanted to talk with the officers, yet she hesitated to sign a waiver form. The officers told her repeatedly that she could use the telephone, which was less than six feet away, and, specifically, that she could call a lawyer immediately if she wanted. She eventually signed the waiver form. Although the officers spoke between themselves within the defendant’s hearing range about the evidence against her and one of them urged her to tell her side of the story, the officers did not initiate questioning before she signed the form or so badger her that their conduct was the functional equivalent of interrogation under Rhode Island v. Innis, 446 U.S. 291 (1980), discussed above in this section under “UNITED STATES SUPREME COURT.” Encouraging a defendant to tell the truth, even after he or she has asked for a lawyer, does not constitute interrogation or its functional equivalent. The court ruled that the defendant’s Miranda rights were not violated.
State v. Allen, 323 N.C. 208 (1988). When a defendant who was in custody asserted his right to counsel, officers stopped interrogating him. One officer told the defendant that all he wanted was the truth, that the defendant would be returned to his jail cell, and that there would be no further interviews with him. He informed the defendant that if he wished to have a further conversation, he should call an officer. Another officer told the defendant the name of the specific officer he should contact if he decided to call an officer. The defendant then said, “Okay,” and added, “I want to talk to you now, man.” Id. at 216. The court ruled that the officers’ statements after the defendant’s assertion of the right to counsel did not violate the ruling in Edwards v. Arizona, 451 U.S. 477 (1981), because they were not interrogation.
State v. Forney, 310 N.C. 126 (1984). A sheriff was taking the defendant from the jail to the courthouse when they passed by a holding cell. When the sheriff asked the defendant, “Do you know these two fellows?” the defendant responded that they had broken into a house with him. No further conversation took place. The court ruled that “this casual question” under these circumstances was not interrogation under Rhode Island v. Innis, 446 U.S. 291 (1980), discussed above in this section under “UNITED STATES SUPREME COURT.”
State v. Ladd, 308 N.C. 272 (1983). An officer’s statement, “You know why,” to a defendant when the defendant asked why he was being arrested was not interrogation. The officer had no reason to anticipate that the defendant would make an incriminating response to this “offhand remark.” See also State v. Porter, 303 N.C. 680 (1980); State v. Crawford, 58 N.C. App. 160 (1982).
North Carolina Court of Appeals
State v. Burris, 253 N.C. App. 525 (2017). The court ruled that the defendant was not in custody for Miranda purposes just because an officer had detained him and was in possession of his license. The matter arose when a detective responded to a suspicious-person call at a hotel and found the defendant in the driver’s seat of a vehicle parked under an overhang. The detective smelled an odor of alcohol and was also concerned about similarities to a robbery that had recently occurred at a nearby hotel. Accordingly, he asked the defendant for identification, then held the defendant’s license and instructed the defendant to “hold tight.” During the resulting detention, the defendant admitted to driving the vehicle, a fact that became important when he was eventually charged with DWI. He moved to suppress statements he made during that detention, arguing that he had been subjected to custodial interrogation without being given his Miranda warnings. Both the trial judge and the court of appeals disagreed, with the latter noting that the defendant had erroneously conflated the Miranda custody standard (whether the suspect has been restrained to a degree associated with an arrest) with the standard for a seizure (whether the suspect is free to leave). Here, the defendant was standing outside of his own vehicle while speaking with the detective. He was not handcuffed or told that he was under arrest, and other than his license being retained, his movement was not stopped or limited further. No mention of any possible suspicion of the defendant being involved in criminal activity, impaired driving or otherwise, had yet been made. A reasonable person in these circumstances would not have believed that he or she was under arrest at the time.
State v. Hogan, 234 N.C. App. 218 (2014). The court ruled that the defendant’s statements, made while a law enforcement officer who had responded to a domestic violence call questioned the defendant’s girlfriend in his presence (the officer asked how she got marks that were visible on her neck), were spontaneous and not in response to interrogation. The State conceded that the defendant was in custody at the time. The court rejected the defendant’s argument that asking his girlfriend what happened in front of him was a coercive technique designed to elicit an incriminating statement. Acknowledging that the “case is a close one,” the court concluded that the officer’s question to the girlfriend did not constitute the functional equivalent of questioning the defendant; the officer’s question did not call for a response from the defendant, and therefore it was not reasonably likely to elicit an incriminating response from him.
In re L.I., 205 N.C. App. 155 (2010). The juvenile was a passenger in a vehicle stopped by an officer. When the officer ordered the juvenile out of the vehicle, he asked, “[Where is] the marijuana I know you have[?]” Id. at 157. The juvenile turned away and appeared to reach into her pants. When the officer tried to see what the juvenile was reaching for, she told him that he could not look in her pants. After handcuffing and placing the juvenile in the back of the patrol car, the officer—without giving Miranda and juvenile statutory warnings—told her that he was going to “take her downtown” and that “if [she] t[ook] drugs into the jail it[] [would be] an additional charge.” Id. The juvenile shortly thereafter told the officer that she had marijuana and that it was in her coat pocket.
(1) The court ruled, relying on State v. Johnston, 154 N.C. App. 500 (2002), that the juvenile was in custody when the officer spoke to her. She had been detained, handcuffed, and placed in the back seat of the officer’s vehicle. (2) The court ruled, relying on State v. Phelps, 156 N.C. App. 119 (2003), that the officer’s statements to the juvenile constituted interrogation under Rhode Island v. Innis, 446 U.S. 291 (1980), because the officer knew or should have known that the statements were reasonably likely to elicit an incriminating response from her. The officer’s objective purpose was to obtain the juvenile’s admission that she possessed the marijuana that he knew she had. The trial court erred in admitting the juvenile’s statements made in response to the officer’s custodial interrogation.
In re D.L.D., 203 N.C. App. 434 (2010). A juvenile was adjudicated delinquent for possession of marijuana with the intent to sell or deliver. An officer was assigned to a high school as a resource officer and had made many arrests for controlled substances at one of the school’s bathrooms. The officer and an assistant principal (hereafter, principal) noticed on monitoring cameras that two male juveniles were entering the bathroom and one was standing outside. The principal told the officer that the situation “looked kind of fishy” and suggested they check it out. Id. at 439. As they approached the bathroom, they saw one male student outside the men’s bathroom and another male student outside the women’s bathroom, and both students stared at the officer and the principal. They then saw the juvenile and two other male students leave the bathroom. When the juvenile saw the officer and the principal, he ran back into the bathroom, and they followed him. When the officer said that he saw the juvenile put something in his pants, the principal replied, “We need to check it.” Id. The officer frisked the juvenile and found a container used to hold BB gun pellets. Inside the container were three individually wrapped bags of marijuana worth $20 each. The officer handcuffed the juvenile and took him to a school office. The principal told the officer that they needed to check the juvenile to make sure that he did not have anything else. The officer searched the juvenile and discovered $59 in his pocket. The juvenile immediately stated that “the money was not from selling drugs” but was his mother’s rent money. Id. at 436. The court ruled that although the juvenile was in custody and had not been given Miranda and statutory warnings, his statement in the school office was admissible at trial because it was unsolicited and spontaneous and not a result of interrogation. The court cited State v. Hall, 131 N.C. App. 427 (1998), and other cases.
State v. Hensley, 201 N.C. App. 607 (2010). The court ruled that an officer’s conduct and his statements to the defendant after his arrest constituted interrogation so as to require Miranda warnings. The officer should have known that his conduct and statements were reasonably likely to elicit an incriminating response from the defendant; see the definition of “interrogation” in State v. Golphin, 352 N.C. 364 (2000), and Rhode Island v. Innis, 446 U.S. 291 (1980). The defendant took a drug overdose and was taken to a hospital. The following day, upon being informed that the defendant was about to be released, the officer arrested him at the hospital. The officer told the defendant (whom he knew from a prior investigation) that he hoped the defendant would continue to cooperate even though he had been arrested. The officer inquired as to whether the defendant would agree to talk with him the next day if the officer came to work on overtime to obtain a statement from him. The defendant then made an incriminating statement.
State v. Rollins, 189 N.C. App. 248 (2008). The court ruled that a correctional officer’s statements to a prisoner during transport from one correctional facility to another constituted interrogation under Rhode Island v. Innis, 446 U.S. 291 (1980), and that, therefore, the prisoner’s response was inadmissible at trial because Miranda warnings had not been given. The officer initiated questioning related to a murder. By doing so, the officer steered the conversation to a topic that, if discussed by the defendant, was likely to elicit an incriminating statement.
State v. Dent, 174 N.C. App. 459 (2005). An officer arrested the defendant for driving while license revoked. He did not administer Miranda warnings to the defendant. While searching him, the officer noted the smell of burnt marijuana but did not find any marijuana. When the officer asked the defendant several times whether he had any marijuana, the defendant said “no.” Before taking the defendant inside a detention facility, the officer asked the defendant whether he had any controlled substances. The defendant said “no.” Once in the detention center and inside a search room, the officer informed the defendant that he would be strip searched. The defendant then stated that he had “residue” in his right sock. Distinguishing State v. Phelps, 156 N.C. App. 119 (2003), rev’d on other grounds, 358 N.C. 142 (2004), and relying on Rhode Island v. Innis, 446 U.S. 291 (1980), and State v. Golphin, 352 N.C. 364 (2000), the court ruled that the officer’s statement before the strip search (that the defendant would be strip searched) was not intended or reasonably expected to elicit an incriminating response from the defendant and therefore did not constitute interrogation under Miranda. The officer was merely informing the defendant of the extent of the impending search. [Author’s note: The officer’s questions to the defendant as to whether he had any marijuana or controlled substances clearly constituted interrogation, although the admissibility of the defendant’s responses was not an issue in this case.]
State v. Jackson, 165 N.C. App. 763 (2004). A 15-year-old juvenile was charged with felonies. Two officers were with him during a juvenile court hearing. After the hearing, the juvenile was talkative. When the juvenile saw a cap that had been introduced into evidence, he spontaneously stated that he knew where the cap came from. One of the officers responded, “So do I.” The juvenile then talked about a robbery. The officer never initiated a conversation at any point other than to ask the juvenile for clarification at times. The court ruled that the officer’s response and requests for clarification were not interrogation under Miranda and also did not violate the juvenile’s Sixth Amendment right to counsel.
State v. Gantt, 161 N.C. App. 265 (2003). Officers arrested the defendant for a sexual offense but did not give him Miranda warnings. On the drive to the magistrate’s office, the defendant—in the midst of making threats of suicide and self-destructive behavior—said, “I didn’t do nothing.” Id. at 268. An officer responded, “She says differently.” Id. Shortly thereafter, the defendant again talked about killing himself. The officer stated, “You broke into the lady’s apartment. You were hiding in her closet.” The defendant then stated, “I got four fingers in her pussy.” Id. The court ruled, relying on State v. Young, 317 N.C. 396 (1986), that the officer’s statements were not interrogation and that, therefore, the defendant’s statements were not taken in violation of the Miranda ruling. The officer’s statements did not call for a response from the defendant and thus were not the functional equivalent of interrogation.
State v. Smith, 160 N.C. App. 107 (2003). While being held in the county jail awaiting trial for several felonies, the defendant was served in the holding area of the magistrate’s office with an order involving another case. The defendant questioned a detective about whether his mother would be arrested as an accessory after the fact involving the pending felony cases. When the detective responded affirmatively, the defendant became angry and said, “Look, man, my mom is innocent. Just because I attacked two innocent people in Greensboro doesn’t mean you have to charge innocent people.” Id. at 112. The court ruled, relying on State v. Young, 317 N.C. 396 (1986), that the detective’s factually correct response to the defendant’s question called for no response from the defendant; it was neither express questioning nor was it likely to elicit an incriminating response from the defendant under the standard set out in Rhode Island v. Innis, 446 U.S. 291 (1980). Thus, the defendant’s statement was admissible at trial even though he had not been given Miranda warnings.
State v. Phelps, 156 N.C. App. 119 (2003), rev’d on other grounds, 358 N.C. 142 (2004). A law enforcement officer arrested the defendant based on two outstanding arrest warrants. The officer did not administer Miranda warnings. In the parking lot of the county jail, before taking the defendant into the building for processing, the officer told the defendant that he needed to inform the officer if he possessed any illegal substance or weapons because it was an automatic felony to possess them in jail. The court ruled that this statement was interrogation under Miranda because the officer knew or should have known that his statement to the defendant was reasonably likely to elicit an incriminating response; the court cited Rhode Island v. Innis, 446 U.S. 291 (1980).
State v. Jordan, 128 N.C. App. 469 (1998). After several hours of interrogation, the defendant indicated that he might need an attorney. An officer stopped the interrogation, left the interview room, and informed his sergeant, who asked the defendant if he needed a lawyer. The defendant responded, “Yes, I’ve told them the truth.” The sergeant replied, “No, you did not, that’s bullshit, you’re lying, and you’re going to jail for murder.” Id. at 471. The officers left the defendant alone for twenty minutes while an officer located the proper booking forms. Sometime during the booking process the defendant stated, “I told you I had something else to say if I was going to be charged.” Id. The officers then left him alone, conferred among themselves, and concluded that he was attempting to initiate further conversation. They then reapproached him, verified that he wanted to speak with them without a lawyer, and elicited incriminating statements from him.
(1) The court ruled that the sergeant’s remarks to the defendant after he asserted his right to counsel were not interrogation or the functional equivalent of interrogation. The exchange was very brief and was not reasonably likely to evoke an incriminating response. See Rhode Island v. Innis, 446 U.S. 291 (1980). Also, the twenty-minute period during which the defendant was left alone was not reasonably likely to evoke an incriminating response. (2) The court ruled that the defendant’s statement, “I told you I had something else to say if I was going to be charged,” was a re-initiation of communication after his prior assertion of the right to counsel. Therefore, the officers did not violate his Miranda rights by reapproaching him and eliciting incriminating statements.
State v. Jones, 112 N.C. App. 337 (1993). The defendant was arrested for breaking and entering and larceny at about 1:05 p.m. and taken to the police department. He waived his Miranda rights and talked to officers for a while and then asserted his right to counsel. The officers stopped the interrogation and left the defendant in the interrogation room until about 7:00 p.m., when they obtained a search warrant for his apartment. The officers took the defendant with them to execute the search warrant. The defendant and an officer had a general conversation there, including the officer’s responding to the defendant’s request for a cigarette (the trial judge found that the conversation was not calculated to induce the defendant to make incriminating statements, and the defendant made none). The defendant’s live-in girlfriend became upset during the officers’ questioning of her about which items in the apartment were hers. The defendant then decided to initiate a conversation with the officers so that they would not bother his girlfriend about these items, and he showed the officers which items were stolen. When the officers took him back to the police station, the defendant was advised of his Miranda rights, waived those rights, and confessed.
The court ruled, following Rhode Island v. Innis, 446 U.S. 291 (1980), that the evidence did not show that the officers should have known that their actions (taking the defendant with them for the execution of the search warrant, questioning his girlfriend, etc.) would elicit an incriminating response.
State v. Garcia-Lorenzo, 110 N.C. App. 319 (1993). The defendant was involved in a vehicular accident by running off a road and was injured. Officers transported the defendant to a hospital, where the officers and doctors had to restrain him when he became violent. Because an officer wanted to know whether to look for other victims of the accident, the officer and then a doctor asked the defendant whether he was alone in the car. The defendant responded several times, “No, alone.”
The court affirmed the trial judge’s conclusions of law that this questioning was permissible for the following reasons: (1) It was within Miranda’s public-safety exception, recognized in New York v. Quarles, 467 U.S. 649 (1984), because officers were concerned that someone else may have been injured and was lying undiscovered at the scene. (2) The defendant was not subjected to “interrogation” as defined in Rhode Island v. Innis, 446 U.S. 291 (1980).
State v. Moose, 101 N.C. App. 59 (1990). Before an officer could read a search warrant to the defendant, the defendant said, “You don’t need that; it’s in there.” When the officer asked what the defendant meant, he replied, “The cocaine you’re looking for is in there.” Id. at 63. The court ruled that the defendant’s statement was not made in response to interrogation because the officer simply asked the defendant to clarify a statement that he had made voluntarily.
State v. Young, 65 N.C. App. 346 (1983). While the defendant was in custody, an officer held a pocketbook (which he believed the defendant had secreted in a car) in his hand in front of the defendant. Twice he said, “I wonder whose this is,” and then he said that the pocketbook belonged to either the defendant or another named person. Id. at 347. The court ruled that the officer’s remarks were interrogation under Rhode Island v. Innis, 446 U.S. 291 (1980), discussed above in this section under “UNITED STATES SUPREME COURT,” because the officer should have known that they were likely to elicit an incriminating response.
Federal Appellate Courts
United States v. Bell, 901 F.3d 455 (4th Cir. 2018). The defendant was convicted at trial of various drugs and firearms offenses in federal district court and appealed, arguing that the trial judge improperly denied his motions to suppress a statement and to reveal the identity of the confidential informant in the case, among other evidentiary and sentencing issues. A task force from the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) raided the defendant’s residence pursuant to a search warrant that was supported in part by an informant’s statements. According to the search warrant affidavit, the informant told the ATF agents that large amounts of heroin were being stored in and sold from the defendant’s residence. The informant claimed to have been to the residence recently and to have seen distribution quantities of drugs, as well as a firearm, and was able to identify the defendant. When agents entered the home, they cuffed the defendant and ultimately sat him in a chair beside his wife (who was actually the sole owner of the home). An agent approached the wife, informed her of the search warrant, and asked if there were any weapons in the home that might hurt the officers. Before his wife responded, the defendant volunteered that “there was a gun under the couch” and that “a friend had given him the gun.” Id. at 462. A semiautomatic rifle was found under the couch, and substantial amounts of drugs, cash, and drug-distribution paraphernalia were discovered throughout the home.
The defendant filed motions to have his statement about the presence of the gun suppressed as a Miranda violation and to have the identity of the informant disclosed, both of which were denied by the trial judge. The defendant’s suppression argument focused on whether the questioning of his wife in his presence constituted an “interrogation” for purposes of Miranda. Miranda warnings are required whenever a suspect is in custody and subject to interrogation. Interrogation can consist of “express questioning or its functional equivalent.” Id. Under Rhode Island v. Innis, 446 U.S. 291, 301 (1980), “words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response” can constitute interrogation for Miranda purposes. The Fourth Circuit Court of Appeals concluded that the agent’s question to the defendant’s wife did not rise to the level of direct interrogation or its functional equivalent:
That the defendant was married to his wife and sat nearby at the time was not enough to presume that the agent should have known his question would prompt the defendant’s response. The Innis “functional equivalent” standard was simply not met here without some other coercive action by the police, above and beyond the fact that the defendant was in custody. “It can hardly be said that overhearing a single question posed to one’s spouse creates the necessary level of compulsion without more.” Id. at 464. The court therefore affirmed the denial of the motion to suppress, finding that the defendant fell “well short” of establishing that his statement was coerced.
United States v. Oloyede, 933 F.3d 302 (4th Cir. 2019). In this multi-defendant wire fraud case in federal district court, one defendant moved to suppress evidence obtained from her cell phone. While police were executing a search warrant at her home, an agent discovered a locked cell phone in this defendant’s bedroom. He asked the defendant, “Could you please unlock your iPhone?” Id. at 308. The defendant then unlocked the phone and gave it back to the agent. The defendant’s motion to suppress the contents of her phone alleged that this was a Fifth Amendment violation of her right to remain silent and that she should have been Mirandized before the request. The district court rejected this argument, finding that the act of unlocking her phone was not a communication subject to Miranda. It further found that the agent’s request was not “coercive” and that the defendant voluntarily complied. The Fourth Circuit Court of Appeals affirmed. The Fifth Amendment protection from self-incrimination applies to compelled testimonial communications that inculpate the defendant. A testimonial communication may consist of an act, but “the act must ‘relate a factual assertion or disclose information’; it must ‘express the contents of [the person’s] mind.’ ” Id. at 309 (citations omitted). Here, the agent did not ask the defendant for the phone’s password; he asked her to enter it herself. The defendant did not show the agent the password, and the agent did not see it when the defendant entered it to unlock the phone. “Unlike a circumstance, for instance, in which she gave the passcode to the agent for the agent to enter, here she simply used the unexpressed contents of her mind to type the passcode herself.” Id. This act did not qualify as a testimonial communication and was unprotected by the Fifth Amendment. Furthermore, even if the defendant’s act of unlocking her phone did constitute a testimonial communication, the phone would still have been admissible: “[T]he Miranda rule is a prophylactic employed to protect against violations of the Self-Incrimination Clause and . . . the Clause is not implicated by the admission into evidence of the physical fruit of a voluntary statement.” Id. (internal quotation marks, citation omitted). This situation fell within the rule set out in United States v. Patane, 542 U.S. 630 (2004), which the Fourth Circuit cited, in that use of the phone evidence at trial did not create any risk that coerced statements by the defendant would be used at trial. The court affirmed the trial court’s denial of the defendant’s motion to suppress.
United States v. Dougall, 919 F.2d 932 (5th Cir. 1990). The defendant was arrested for rape. He was given Miranda warnings and requested a lawyer. Officers then requested minimal personal data from the defendant. They also requested a hair sample, informing the defendant that they would obtain a court order if he failed to comply voluntarily. The defendant then began to talk about the charge and signed a waiver of his Miranda rights. When he again requested a lawyer and became silent, the officers sat with the defendant in silence for a short time. The defendant then resumed talking and confessed.
The court ruled that the officers’ routine booking questions were not interrogation (see Pennsylvania v. Muniz, 496 U.S. 582 (1990)) and that the officers’ request for a hair sample did not violate the defendant’s Fifth or Sixth Amendment rights. Compulsion to submit to a hair sample does not violate the Fifth Amendment, and the request for the hair sample did not occur at a critical stage of the proceedings for purposes of the Sixth Amendment right to counsel. The court also ruled that the moment of silence after the defendant’s second request for counsel was not designed to elicit incriminating responses and therefore did not violate the defendant’s Fifth or Sixth Amendment rights.
Request for Consent to Search
(This topic is discussed in the chapter text under “Request for consent to search.”)
NORTH CAROLINA COURT OF APPEALS
State v. Cummings, 188 N.C. App. 598 (2008). The defendant was advised of his Miranda rights and waived them. Shortly after questioning began, the defendant requested a lawyer and questioning stopped. However, an officer then asked for the defendant’s consent to search his vehicle, which he granted. The court upheld the trial judge’s denial of the defendant’s motion to suppress evidence seized as a result of the consent search. The court noted that State v. Frank, 284 N.C. 137 (1973), had ruled that Miranda warnings are inapplicable to searches and seizures. The court also stated that it found persuasive many federal court cases that have ruled that asking for a consent search is not interrogation under Miranda; for example, United States v. Shlater, 85 F.3d 1251 (7th Cir. 1996), and United States v. McCurdy, 40 F.3d 1111 (10th Cir. 1994).
Volunteered Statements
(This topic is discussed in the chapter text under “The Meaning of ‘Interrogation,’ ” “Volunteered statements.”)
UNITED STATES SUPREME COURT
Pennsylvania v. Muniz, 496 U.S. 582 (1990). The Court ruled that the defendant’s voluntary utterances (including his questions to an officer and his slurred speech) when he performed a physical sobriety test and during preliminaries of Breathalyzer testing were not the result of interrogation and therefore were admissible at trial.
NORTH CAROLINA SUPREME COURT
State v. Coffey, 345 N.C. 389 (1997). The defendant was arrested for murder, and two attorneys were appointed to represent him. The attorneys requested that the district attorney conduct a polygraph examination on the defendant but did not express any desire to accompany their client to the polygraph site. When the defendant was being removed from his cell for the polygraph examination, he told a deputy sheriff that he wanted to call his attorney. The deputy declined to allow the defendant to do so because the policy of the sheriff’s office did not permit a prisoner to make a telephone call while being transported from one facility to another. Later, when the polygraph operator was explaining the polygraph procedures to the defendant, the defendant stated that he did not tell investigating officers the truth about money taken from the murder victim. The operator asked him what he did not tell the truth about. The defendant said that he was handed the money by his accomplice and the accomplice “went off.” The operator did not ask any further questions; instead, he conducted the polygraph examination. After the examination, the operator informed the defendant that he had not passed the polygraph about the murder and robbery. The defendant then made an incriminating statement. The operator asked the defendant if he would be willing to talk to one of the investigating officers. The defendant named a particular officer and later repeated the same incriminating statement to that officer.
The court ruled that the defendant was not being interrogated in violation of Edwards v. Arizona, 451 U.S. 477 (1981) (interrogation is not permitted after defendant has asserted right to counsel), when he made his statements to the polygraph operator and the investigating officer. These statements were volunteered by the defendant. Thus, neither his Fifth nor Sixth Amendment rights to counsel were violated. The court alternatively ruled, assuming that the defendant was being interrogated, that the defendant initiated the communication with the polygraph operator and the investigating officer. See, e.g., Oregon v. Bradshaw, 462 U.S. 1039 (1983).
State v. Walls, 342 N.C. 1 (1995). The defendant was arrested, was orally informed of his Miranda rights, and orally waived them. At the sheriff’s department, a detective took the defendant to the fingerprinting room and asked him if he remembered his rights; the defendant said that he did. Nevertheless, the detective read him his Miranda rights again, provided him with a written copy, and obtained a written waiver. After being told of the two assaults for which he was charged, the defendant denied any knowledge of them and signed a writing indicating that he no longer wished to make a statement. The detective did not ask any questions and began to fingerprint the defendant. When the detective took his right hand, the defendant exclaimed, “Ouch, take it easy.” The detective noticed that the defendant’s hand was badly swollen and cut, so he asked him, “What happened to your hand?” The defendant answered, “I hit an oak tree.” The detective asked, “[W]hat did you hit a tree for? A tree had never hurt anybody.” The defendant replied, “I should have hit her a little harder so I could really hurt my hand.” Id. at 28. The court ruled that the defendant’s remarks were volunteered statements and that the detective’s questions did not convert the conversation into an interrogation under Miranda. See also State v. Coffey, 345 N.C. 389 (1997).
State v. Lambert, 341 N.C. 36 (1995). The defendant was in jail and requested that an officer come and speak to her. After the defendant spoke with her father, she approached the officer and told him that she had “blacked out” and could not remember anything. The court ruled that her statement was admissible at trial under Miranda because (1) it was not made as a result of interrogation and (2) it was not an invocation of the right to silence—her specific request to speak to the officer and her statement indicated a desire not to remain silent.
State v. Edgerton, 328 N.C. 319 (1991). As an officer attempted to advise the defendant of his Miranda rights, the defendant spontaneously began to make a statement. The court ruled that the statement was admissible at trial because it was not made as a result of interrogation.
State v. Porter, 303 N.C. 680 (1980). While in custody for armed robbery, a defendant heard (over the radio) an officer ask the arresting officer whether the bank bag from the robbery had been found. The defendant responded, “The bank bag is in the car.” Id. at 683. The court ruled that the defendant’s response was a volunteered statement that was not prohibited by the Miranda ruling because the radio question was not addressed to the defendant. See also State v. Herring, 284 N.C. 398 (1973); State v. Thomas, 284 N.C. 212 (1973); State v. Muse, 280 N.C. 31 (1971).
NORTH CAROLINA COURT OF APPEALS
State v. Moore, 254 N.C. App. 544 (2017). The trial court did not err by denying the defendant’s motion to suppress statements made to an officer while the officer was transporting the defendant to a law enforcement center. It was undisputed that the defendant made the inculpatory statements while in custody and before he had been given his Miranda rights. However, the court held that the defendant was not subjected to interrogation; rather, his statements were spontaneous utterances. This was so even though the statements followed a supervising officer’s radio communication with the transporting officer in which the supervisor asked the transporting officer whether the defendant had said anything about the location of the vehicle involved in the incident. This “brief exchange between two law enforcement officers” was not directed at the defendant, was not the functional equivalent of an interrogation, and did not call for an incriminating response. Id. at 569.
State v. Burton, 251 N.C. App. 600 (2017). The defendant and another man were arrested in connection with the possession of marijuana and cocaine in a vehicle. The arresting officer obtained charges against both individuals, then read the arrest warrants to each arrestee in the other’s presence. The defendant told the officer that the other individual should not be charged with possession of the cocaine because it was the defendant’s. That statement was not obtained in violation of Miranda—reading the arrest warrants aloud was not “interrogation.” Arresting officers must inform arrestees of the charges against them, and the defendant failed to show that reading the charges in the presence of both arrestees was designed to elicit an incriminating response.
In re D.L.D., 203 N.C. App. 434 (2010). A juvenile was adjudicated delinquent for possession of marijuana with the intent to sell or deliver. An officer was assigned to a high school as a resource officer and had made many arrests for controlled substances at one of the school’s bathrooms. The officer and an assistant principal (hereafter, principal) noticed on monitoring cameras that two male juveniles were entering the bathroom and one was standing outside. The principal told the officer that the situation “looked kind of fishy” and suggested they check it out. Id. at 439. As they approached the bathroom, they saw one male student outside the men’s bathroom and another male student outside the women’s bathroom, and both students stared at the officer and the principal. They then saw the juvenile and two other male students leave the bathroom. When the juvenile saw the officer and the principal, he ran back into the bathroom, and they followed him. When the officer said that he saw the juvenile put something in his pants, the principal replied, “We need to check it.” Id. The officer frisked the juvenile and found a container used to hold BB gun pellets. Inside the container were three individually wrapped bags of marijuana worth $20 each. The officer handcuffed the juvenile and took him to a school office. The principal told the officer that they needed to check the juvenile to make sure that he did not have anything else. The officer searched the juvenile and discovered $59 in his pocket. The juvenile immediately stated that “the money was not from selling drugs” but was his mother’s rent money. Id. at 436. The court ruled that although the juvenile was in custody and had not been given Miranda and statutory warnings, his statement in the school office was admissible at trial because it was unsolicited and spontaneous and not a result of interrogation. The court cited State v. Hall, 131 N.C. App. 427 (1998), and other cases.
State v. Dukes, 110 N.C. App. 695 (1993). Officer Moore arrived at a trailer park to investigate the murder of the defendant’s wife. Both the defendant and a baby he was holding had blood on their clothing. Officer Moore accompanied the defendant and the baby to the defendant’s trailer (the defendant lived in a different trailer than his wife). Officer Moore instructed Officer Thompson to guard the defendant, not allow him to leave his trailer, not allow any other person to enter the trailer, and not allow the defendant to wash or to change his clothes. Officer Thompson allowed the defendant to make telephone calls after he asked permission to do so. Officer Thompson accompanied the defendant to the bathroom to ensure that he did not wash or change his clothes. Officer Thompson later asked the defendant, “Do you know what happened?”
(1) The court ruled that the defendant was in custody so as to require Miranda warnings while he was at his trailer with Officer Thompson. A reasonable person who knew that his wife had just been killed and who was being kept under constant police supervision, who had been told not to wash or change his clothing, and who was never informed that he was free to leave his own home would not feel free to get up and go. The court also ruled that the officer’s question constituted interrogation under the Miranda ruling. (2) The defendant was later arrested and taken to a law enforcement center. While the officer was advising the defendant of his Miranda rights, the defendant said, “I stabbed her.” The court ruled that this statement was voluntary and not the result of custodial interrogation.
Assertion of Miranda Rights
Assertion of the Right to Remain Silent
(This topic is discussed in the chapter text under “Asserting the Right to Remain Silent.”)
United States Supreme Court
Berghuis v. Thompkins, 560 U.S. 370 (2010). The Court ruled that a defendant must make an unambiguous assertion of the right to remain silent to require an officer to stop custodial interrogation.
Officers were investigating a murder. Before beginning a custodial interrogation, one of the officers presented the defendant with a Miranda form. The form included the four warnings required by Miranda v. Arizona, 384 U.S. 436 (1966) (right to remain silent, use of statements in court, right to have lawyer present, right to have appointed lawyer if indigent), and an additional warning not required by Miranda: “You have the right to decide at any time before or during questioning to use your right to remain silent and your right to talk with a lawyer while you are being questioned.” Berghuis, 560 U.S. at 375. The officer asked the defendant to read the fifth warning aloud so that he could ensure that the defendant understood English, which he did. The officer then read the other four Miranda warnings aloud and asked the defendant to sign the form to demonstrate that he understood his rights. The defendant declined to sign the form. There was conflicting evidence as to whether the officer verbally confirmed that the defendant understood the rights listed on the form. The officer did not discuss a waiver of Miranda rights with the defendant or obtain one from him.
During the interrogation, the defendant never stated that he wanted to remain silent, that he did not want to talk with the officers, or that he wanted a lawyer. About two hours and forty-five minutes into the interrogation, during which the defendant was mostly silent, an officer asked the defendant, “Do you believe in God?” The defendant said “yes.” The officer asked, “Do you pray to God?” The defendant said “yes.” The officer then asked, “Do you pray to God to forgive you for shooting that boy down?” The defendant said “yes” and looked away. Id. at 376. The interview ended shortly thereafter. At trial, the defendant moved to suppress these statements. The issue before the United States Supreme Court was the admissibility of these statements under Miranda and later Miranda-related cases.
The Court rejected the defendant’s argument that he invoked his right to remain silent by not saying anything for a sufficient time period during the interrogation. The Court noted that it had ruled in Davis v. United States, 512 U.S. 452 (1994), that in the context of invoking the Miranda right to counsel, a defendant must do so unambiguously. If a defendant makes a statement concerning the right to counsel that is ambiguous or equivocal or makes no statement, officers are not required to end the interrogation or to ask questions as to whether the defendant wants to invoke his or her Miranda rights. The Court concluded that there was no principled reason to adopt different standards for determining when a defendant has invoked the Miranda right to remain silent and the Miranda right to counsel. The Court noted that the defendant did not say that he wanted to remain silent or that he did not want to talk with the officers, and therefore the Court ruled that the defendant did not invoke the right to remain silent so as to require the officers to stop their interrogation.
Michigan v. Mosley, 423 U.S. 96 (1975). A Detroit robbery detective arrested the defendant for two robberies, properly gave him the Miranda warnings, and properly obtained a waiver of rights. When the defendant said that he did not want to answer any questions about the robberies (he did not assert his right to counsel, however), the detective immediately stopped his questioning. About two hours later, a Detroit homicide detective sought to question the defendant about an unrelated murder. He properly gave him the Miranda warnings and properly obtained a waiver of rights. The defendant did not ask for a lawyer or assert his right to remain silent. He then confessed to the murder.
The Court ruled that the admissibility of statements that a defendant makes after he or she has exercised his or her right to remain silent depends on whether that right is “scrupulously honored.” The Court ruled that the officers met that standard in this case. The Court noted that the robbery detective immediately stopped his questioning after the defendant said that he did not want to discuss the robberies, and he did not attempt to resume questioning or in any way attempt to persuade the defendant to reconsider his refusal to talk. After questioning had been suspended for a “significant period of time” (in this case, about two hours), the homicide detective—after giving the Miranda warnings and obtaining a waiver—did not question the defendant about the robberies but instead focused exclusively on a completely separate, unrelated crime.
See also State v. Temple, 302 N.C. 1 (1981); State v. Hill, 294 N.C. 320 (1978); State v. Riddick, 291 N.C. 399 (1976); Jackson v. Wyrick, 730 F.2d 1177 (8th Cir. 1984) (court upheld officers’ resumption of questioning about same crime after assertion of right to remain silent; officers waited twenty-four hours before resuming questioning); Kelly v. Lynaugh, 862 F.2d 1126 (5th Cir. 1988) (court upheld officer’s resumption of questioning between 8:30 p.m. and 10:00 p.m. about same crime after defendant had asserted right to remain silent in two prior attempts to interrogate him, the first at about 11:00 a.m. and the second at about 4:00 p.m.); Jackson v. Dugger, 837 F.2d 1469 (11th Cir. 1988) (court upheld officer’s resumption of questioning about same crime when significant period of time—more than six hours—elapsed between original assertion of right to remain silent and re-interrogation); United States v. Udey, 748 F.2d 1231 (8th Cir. 1984) (questioning about same crime six hours after defendant asserted right to remain silent was proper); Brown v. Caspari, 186 F.3d 1011 (8th Cir. 1999) (questioning about same crime three hours after defendant asserted right to remain silent was proper).
North Carolina Supreme Court
State v. Waring, 364 N.C. 443 (2010). The court rejected the defendant’s argument that by telling officers that he did not want to snitch on anyone and declining to reveal the name of his accomplice, the defendant invoked his right to remain silent, requiring that all interrogation cease.
State v. Forte, 360 N.C. 427 (2006). Officers were investigating the defendant’s alleged involvement in three murders. They went to the defendant’s workplace and asked him if he would accompany them to the police station for an interview. He was told that he was not under arrest and that he could return to work later. The defendant was not given Miranda warnings. He went with the officers to the police station, where he admitted involvement with the three murders; he then went with the officers to the locations where the murders were committed. The officers and the defendant returned to the police station, where the defendant was given Miranda warnings and asked if he wanted to answer any more questions at that time. When the defendant answered “no,” an officer asked what he meant. The defendant responded that he was tired and would answer more questions after he had had a chance to sleep. When the defendant awoke after several hours of sleep, he said that he felt like talking some more. The officers re-advised the defendant of his Miranda rights, and the defendant affirmed his willingness to continue answering questions. The court ruled, citing State v. Golphin, 352 N.C. 364 (2000), that under these circumstances, the defendant’s “no” response was ambiguous (that is, it was not a clear assertion of the right to remain silent) and that, therefore, the officer did not violate the defendant’s constitutional rights by asking for amplification. The defendant had been cooperative from the beginning of his encounter with the police and had been forthcoming with his answers to the officers’ questions. When the defendant unexpectedly answered “no” on being asked if he wished to answer any more questions, the officer did no more than ask him what he meant.
State v. Golphin, 352 N.C. 364 (2000). Two defendants were charged with several offenses, including the murders of two law enforcement officers. During an officer’s interrogation of the defendant in this case about a shooting at a vehicle, the defendant said that he did not want to say anything about it and that he did not know who shot at the vehicle or he would have told the officer. The officer asked again, and the defendant stated that his co-defendant shot at the vehicle.
The court noted that Davis v. United States, 512 U.S. 452 (1994), ruled that an officer is not required to stop interrogation when a defendant makes an ambiguous request for counsel and that the Fourth Circuit Court of Appeals in Burket v. Angelone, 208 F.3d 172 (4th Cir. 2000), ruled that the same rule applies when a defendant makes an ambiguous request to remain silent. [Author’s note: The later ruling in Berghuis v. Thompkins, 560 U.S. 370 (2010), applied Davis to the assertion of the right to remain silent.] The court ruled that the defendant here made an ambiguous request to remain silent and that the officer’s continuing question did not violate the defendant’s Miranda rights. The court stated that it was not unreasonable for the officer to believe that the defendant wanted to talk about what happened to the vehicle because the defendant had indicated that had he known whom the incident involved, he would have made a statement about it.
State v. Murphy, 342 N.C. 813 (1996). The defendant, a murder suspect, was in custody on other charges. Officers gave him Miranda warnings, and he waived his rights. After the defendant talked about some other matters, the officers informed him that he was going to be charged with murder. The defendant twice denied any knowledge of the killing. When one officer indicated a willingness to stay and continue talking, the defendant stood up and said, “I got nothing to say.” Id. at 822. The officers stopped their interrogation, charged the defendant with murder, and began the booking process. During the booking process, an officer (without re-advising the defendant of his Miranda rights) encouraged the defendant to “tell the truth” about the murder so the “bad feeling in his stomach” would go away. The defendant responded, “Man, you know the position I’m in, I can’t tell you about it.” Id. This statement was made about fifteen minutes after the initial interrogation, which had ended when the defendant advised the officers that he had nothing to say.
(1) The court ruled that the defendant’s conduct in abruptly standing up, combined with his unambiguous statement, “I got nothing to say,” was an invocation of the right to remain silent based on the facts in this case. (2) Relying on Michigan v. Mosley, 423 U.S. 96 (1975), the court ruled that a defendant’s assertion of the right to remain silent permits re-interrogation (unlike the assertion of the right to counsel) if officers “scrupulously honor” the assertion—that is, the officers immediately stop questioning and do not attempt re-interrogation until a significant period of time has elapsed. (3) Distinguishing Mosley, the court ruled that the officer in this case did not scrupulously honor the defendant’s assertion of the right to remain silent because the officer initiated conversation with the defendant about the same subject matter fifteen minutes after the assertion. (4) The court ruled that a re-advisement of Miranda rights is not a prerequisite to re-interrogation under the Mosley ruling; it is but one factor in determining if the defendant’s rights have been “scrupulously honored.” The defendant’s statement was ordered suppressed because of the ruling in (3), above.
State v. Walls, 342 N.C. 1 (1995). The defendant was arrested and orally informed of his Miranda rights, and he orally waived them. At the sheriff’s department, a detective took the defendant to the fingerprinting room and asked him if he remembered his rights; the defendant said that he did. Nevertheless, the detective read him his Miranda rights again, provided him with a written copy, and obtained a written waiver. After being told of the crimes (two assaults) for which he was charged, the defendant denied any knowledge of them and signed a writing indicating that he no longer wished to make a statement. The detective did not ask any questions and began to fingerprint the defendant. When the detective took his right hand, the defendant exclaimed, “Ouch, take it easy.” The detective noticed that the defendant’s hand was badly swollen and cut, so he asked him, “What happened to your hand?” The defendant answered, “I hit an oak tree.” The detective asked, “[W]hat did you hit a tree for? A tree had never hurt anybody.” The defendant replied, “I should have hit her a little harder so I could really hurt my hand.” Id. at 28. The court ruled that the defendant’s remarks were volunteered statements and that the detective’s questions did not convert the conversation into an interrogation under Miranda.
State v. Lambert, 341 N.C. 36 (1995). The defendant was in jail and requested that an officer come and speak to her. After the defendant spoke with her father, she approached the officer and told him that she had “blacked out” and could not remember anything. The court ruled that her statement was admissible at trial under Miranda because (1) it was not made as a result of interrogation and (2) it was not an invocation of the right to silence—her specific request to speak to the officer and her statement indicated a desire not to remain silent.
State v. Robbins, 319 N.C. 465 (1987). The defendant’s statement, “I told you everything I know,” to an officer during custodial interrogation was not an invocation of his right to remain silent. Although the statement may have conveyed a message that the defendant had nothing else to tell, it could not reasonably be interpreted as indicating that he had said all he wished to say.
State v. Westmoreland, 314 N.C. 442 (1985). The mere failure of a defendant, who had consented to interrogation, to answer some questions was not sufficient, by itself, to indicate that the defendant had asserted the right to remain silent, when the defendant never explicitly asserted the right to remain silent.
State v. Fincher, 309 N.C. 1 (1983). The defendant did not invoke the right to remain silent when he stated to an officer that he would not give another written statement until his accomplice confronted him with the truth. Even if the defendant made an equivocal assertion of the right to remain silent, the officer properly clarified the defendant’s intentions by inquiring whether he could ask another question.
North Carolina Court of Appeals
State v. Bordeaux, 207 N.C. App. 645 (2010). Citing Berghuis v. Thompkins, 560 U.S. 370 (2010), the court ruled that the defendant’s silence or refusal to answer the officers’ questions was not an invocation of the right to remain silent.
State v. Jacobs, 174 N.C. App. 1 (2005). [Author’s note: There was a dissenting opinion in this case, but not on the issue discussed below.] The defendant was arrested for the armed robbery of James Morgan and committed to jail. On August 6, 2002, after Officer A gave Miranda warnings to the defendant, the defendant asserted his right to remain silent, and no interrogation was conducted about the robbery of Morgan. The defendant did not assert his right to counsel, however. On August 8, 2002, Officer B initiated interrogation of the defendant about a different armed robbery case (the victims were Mr. and Mrs. Chavis), after giving Miranda warnings and obtaining a proper waiver. The defendant made statements that were introduced at the trial involving Mr. and Mrs. Chavis. The court ruled that the second interrogation was proper under Michigan v. Mosley, 423 U.S. 96 (1975), because the officers had “scrupulously honored” the defendant’s assertion of his right to remain silent.
State v. Ash, 169 N.C. App. 715 (2005). The defendant was arrested for murder and other offenses. After being advised during an officer’s giving of Miranda rights of his right to have an attorney present, the defendant asked, “Now?” The officer responded affirmatively. The defendant then asked, “Where’s my lawyer at? [Inaudible] come down here?” The officer replied that the lawyer who was representing the defendant on a pending, but unrelated, breaking and entering charge had nothing to do “with what [he was] going to talk to [defendant] about.” The defendant responded, “Oh, okay,” and signed a waiver-of-rights form. Id. at 723. The court ruled that the defendant did not clearly invoke his right to counsel under the ruling in Davis v. United States, 512 U.S. 452 (1994), and thus his Miranda rights were not violated. During the officer’s interrogation, the defendant confessed that he and others had planned to commit a robbery but ended their plan when they drove by the murder victim’s mobile home and observed all the interior lights illuminated there. After the officer asked the defendant whether he was “scared” when the gun “went off,” the defendant stated, “I don’t want to talk no more ’cause you’re talking some crazy shit now.” The officer continued to question the defendant, stating, “You didn’t even know how many people was [sic] in the house, did you?” The defendant responded, “That’s why the fuck I didn’t stop,” and the interrogation continued. Id. at 724. The defendant continued to deny his involvement in the crime but admitted his participation after further questioning. The court ruled, relying on State v. Golphin, 352 N.C. 364 (2000), that the defendant did not clearly invoke his right to remain silent under Miranda. The court upheld the trial judge’s finding that despite the defendant’s statement about not talking any more, the defendant continued to talk without significant prompting by the officer.
State v. Johnson, 136 N.C. App. 683 (2000). An officer gave juvenile interrogation warnings to a 15-year-old juvenile while his mother was present. The juvenile responded affirmatively to the question of whether he understood his rights. He then responded “no” when asked if he wished to answer questions. His mother then turned to him and said, “No, we need to get this straightened out today. We’ll talk with him anyway.” Id. at 686. The juvenile looked at his mother, lowered his head, and appeared to be considering what his mother had said. He then turned to the officer and nodded his head affirmatively. The officer asked the juvenile if he wished to answer questions without a lawyer present, and he answered “yes.” Citing State v. Bragg, 67 N.C. App. 759 (1984), and State v. Crawford, 83 N.C. App. 135 (1986), the court ruled that by nodding affirmatively to the officer, the juvenile communicated with him and thus initiated further communication. Thus, the officer properly was permitted to continue the interrogation process and the resulting confession was admissible at trial. [Author’s note: Although the result of the court’s ruling is clearly correct, its citation to and reliance on the standard set out in the Bragg and Crawford rulings rests on an erroneous interpretation of federal constitutional standards. The requirement that a defendant initiate communication applies only after an assertion of the right to counsel, not an assertion of the right to remain silent.]
State v. Fortner, 93 N.C. App. 753 (1989). The defendant was arrested for murder and committed to jail. He made an incriminating statement after officers had properly given him Miranda warnings and obtained a waiver. He then told them that he did not want to answer any more questions, and the officers immediately stopped the interrogation. Several hours later, a State Bureau of Investigation (SBI) agent questioned the defendant after properly giving him Miranda warnings and obtaining a waiver. The court ruled that the SBI agent did not violate the defendant’s Miranda rights based on Michigan v. Mosley, 423 U.S. 96 (1975), and State v. Temple, 302 N.C. 1 (1981). [Author’s note: The court did not discuss the prior court of appeals cases of State v. Crawford, 83 N.C. App. 135 (1987), and State v. Bragg, 67 N.C. App. 759 (1984), which had incorrectly ruled that the assertion of the right to remain silent barred further interrogation under Edwards v. Arizona, 451 U.S. 477 (1981).]
State v. Toms, 28 N.C. App. 394 (1976). The defendant’s Miranda rights were violated when an officer continued interrogation for about thirty or more minutes immediately after the defendant asserted his right to remain silent. See also United States v. Barone, 968 F.2d 1378 (1st Cir. 1992) (officers violated the defendant’s right to remain silent by repeatedly questioning him after he told them he did not want to talk with them until he got back to Boston).
Assertion of the Right to Counsel
(This topic is discussed in the chapter text under “Asserting the Right to Counsel.”)
United States Supreme Court
Maryland v. Shatzer, 559 U.S. 98 (2010). In 2003, a detective went to a Maryland prison to question the defendant about his alleged sexual abuse of his son, for which he then was not charged. The defendant was serving a prison sentence for a conviction of a different offense. The defendant asserted his right to counsel under Miranda, and the detective terminated the custodial interrogation. The defendant was released back to the general prison population to continue serving his sentence, and the child abuse investigation was closed. Another detective reopened the investigation in 2006 and went to another prison where the defendant was still serving his sentence. The detective gave Miranda warnings to the defendant; the defendant waived his Miranda rights and then gave a statement that was introduced at his child sexual-abuse trial. The United States Supreme Court in Edwards v. Arizona, 451 U.S. 477 (1981), ruled that once a defendant has asserted his or her right to counsel at a custodial interrogation, an officer may not conduct custodial interrogation of the defendant until a lawyer is made available for the interrogation or unless the defendant initiates further communication with the officer. The Court in Shatzer ruled that when a break in custody lasting fourteen days or more has occurred after a defendant previously asserted his or her right to counsel at a custodial interrogation, an officer may re-initiate custodial interrogation after giving Miranda warnings and obtaining a waiver of Miranda rights. The Court also ruled that although the defendant here remained in prison after asserting his right to counsel, there was a break in custody under its ruling. The Court reasoned that when a prisoner is released after an officer’s interrogation to return to the general prison population, the prisoner returns to his or her accustomed routine and regains the degree of control over his or her life that existed before the interrogation. Sentenced prisoners, in contrast to defendants being subjected to custodial interrogation under Miranda, are not isolated with their accusers (law enforcement officers). They live among other inmates, guards, and workers and often can receive visitors and communicate with people on the outside by mail or telephone. The “inherently compelling pressures” of custodial interrogation ended when this defendant returned to his normal life in prison. Id. at 114. [Author’s note: For a detailed analysis of the Shatzer ruling, see Robert L. Farb, The United States Supreme Court’s Ruling in Maryland v. Shatzer (UNC School of Government, 2010), www.sog.unc.edu/sites/www.sog.unc.edu/files/reports/marylandshatzer2010.pdf.]
Davis v. United States, 512 U.S. 452 (1994). Investigators gave the in-custody defendant Miranda warnings and received a proper waiver of his rights. About an hour and a half into the interrogation, the defendant said, “Maybe I should talk to a lawyer.” Id. at 455. The investigators told the defendant that they did not want to violate his rights, that if he wanted a lawyer then they would stop questioning him, and that they would not pursue the matter unless it was clarified whether he was asking for a lawyer or was just making a comment about a lawyer. The defendant said, “No, I’m not asking for a lawyer,” and continued on, and said, “No, I don’t want a lawyer.” Id. After a short break, the investigators reminded the defendant of his rights to remain silent and to counsel. The defendant then made incriminating statements that he later sought to suppress at trial, arguing that the investigators violated the ruling in Edwards v. Arizona, 384 U.S. 436 (1981) (officers must immediately stop interrogation if the suspect has clearly asserted the right to counsel).
The Court stated that the determination as to whether a defendant actually invoked the right to counsel is an objective one, requiring some statement that can reasonably be construed to be an expression of the desire for the assistance of counsel. The Court ruled that if a defendant makes a reference to an attorney that is ambiguous or equivocal so that a reasonable officer under the circumstances would have understood only that the defendant might be invoking the right to counsel, the officer is not required to stop the interrogation—rather, the defendant must unambiguously request counsel. The Court specifically rejected a requirement that an officer must stop interrogation immediately when a defendant makes an ambiguous or equivocal request for counsel. [Author’s note: It is unclear whether the Court’s ruling applies only when a defendant makes an ambiguous or equivocal request for counsel during custodial interrogation after proper Miranda warnings have been given and a waiver of rights has been obtained. If a defendant makes an ambiguous or equivocal request for counsel when the officer is giving Miranda warnings or obtaining a waiver of rights, the officer should clarify whether or not the defendant wants a lawyer, because the State has the burden of proving that the defendant waived his or her rights, including the right to counsel.]
The Court noted that when a defendant makes an ambiguous or equivocal request for counsel, it often will be good law enforcement practice for officers to clarify whether or not the defendant wants a lawyer. Clarifying questions protect the rights of the defendant by ensuring that the defendant gets a lawyer if he or she wants one and will minimize the risk of a confession being suppressed by later judicial second-guessing of the meaning of the defendant’s statement about counsel. But the Court reiterated that if the defendant’s statement is not an unambiguous or unequivocal request for counsel, officers are not obligated to stop questioning the defendant.
The Court upheld the lower court ruling that the defendant’s remark to the officers in this case, “Maybe I should talk to a lawyer,” was not a request for counsel. Therefore, the officers were not required to stop questioning the defendant.
[Author’s note: The Court’s ruling now casts substantial doubt on the validity of a ruling in State v. Torres, 330 N.C. 517 (1992), that the defendant unequivocally invoked her right to counsel when she asked law enforcement officers whether she needed a lawyer.]
McNeil v. Wisconsin, 501 U.S. 171 (1991). The defendant was arrested for armed robbery and advised of his Miranda rights. He refused to answer questions, although he did not request an attorney. A public defender represented the defendant in court at a bail hearing, at which a preliminary examination was scheduled. Officers from another county investigating an unrelated murder visited the defendant in jail three times, properly gave him Miranda warnings, obtained a waiver each time, and obtained incriminating statements about the murder.
The Court noted that it was undisputed that when the defendant gave the incriminating statements about the murder, his Sixth Amendment right to counsel had attached and had been invoked for the robbery charge (apparently at a court hearing on that charge). However, the Court ruled that this invocation was offense-specific (that is, only for the robbery charge) and did not constitute an invocation of the right to counsel under the Fifth Amendment. Therefore, the officers did not violate the defendant’s Fifth or Sixth Amendment rights to counsel by initiating interrogation about the murder, because (1) his Sixth Amendment right to counsel had not attached for the murder because he had not yet been charged with that crime and (2) he had never asserted his right to counsel under the Fifth Amendment. The Court did not decide if the Fifth Amendment right to counsel can be properly asserted at a time other than during custodial interrogation, although it indicated in footnote 3 of its opinion that it can be asserted only during custodial interrogation.
See also United States v. Wright, 962 F.2d 953 (9th Cir. 1992) (defense attorney at plea hearing for in-custody defendant, who had not previously invoked counsel during custodial interrogation, told government that she wanted to be present during interviews with defendant; court ruled that this request was not an assertion of counsel under Fifth Amendment that barred officers from initiating custodial interrogation about unrelated crimes); United States v. Wyatt, 179 F.3d 532 (7th Cir. 1999) (defendant’s assertion of right to counsel when he was not in custody was not assertion under Miranda, even if assertion was made in anticipation of future custodial interrogation).
Minnick v. Mississippi, 498 U.S. 146 (1990). The defendant was arrested for murder and asserted his right to counsel during interrogation by federal law enforcement officers. He then communicated with counsel two or three times. A state law enforcement officer then initiated interrogation with the defendant about the same offense, properly executed Miranda warnings and waiver, and obtained a statement from him. The Court ruled that under Miranda, when a defendant requests counsel, interrogation must stop, and officers may not re-initiate interrogation without counsel being present (assuming the defendant has remained in continuous custody)—regardless of whether the defendant has consulted with counsel. Thus, the state officer violated the defendant’s Miranda rights by re-initiating interrogation.
Arizona v. Roberson, 486 U.S. 675 (1988). When a defendant who is in custody asserts the right to counsel under Miranda, the ruling of Edwards v. Arizona, 451 U.S. 477 (1981) (officers may not initiate interrogation of defendant until lawyer has been provided or until defendant initiates further communication with officers), applies not only to the crime for which the defendant is being interrogated but also to interrogation about unrelated crimes. The Court also ruled that the Edwards rule applies to an interrogating officer from a different agency even if that officer does not know about a defendant’s assertion of the right to counsel. [Author’s note: This ruling effectively reversed a contrary ruling in State v. Dampier, 314 N.C. 292 (1985).]
The Court stated, however, that officers are free to inform a defendant of the facts of an investigation of unrelated crimes as long as such communication does not constitute interrogation. See United States v. Jackson, 189 F.3d 502 (7th Cir. 1989) (relying on this statement in Roberson, court ruled that officer did not interrogate defendant under standard of Rhode Island v. Innis, 446 U.S. 291 (1980), when he merely explained to jailed defendant, who had asserted right to counsel after his arrest for crime A, that he was subject of ongoing investigation for unrelated crime B, and officer asked for defendant’s assistance if he was willing to give it after he was released from jail; officer also told him he had no interest in obtaining statement from him; defendant shortly thereafter initiated communication with another officer and gave incriminating statement about crime A).
Arizona v. Mauro, 481 U.S. 520 (1987). The defendant was arrested for the murder of his son and asserted his right to counsel after being given Miranda warnings. The defendant’s wife insisted on seeing her husband, who was being held in a police captain’s office. Officers allowed the meeting, but only on the condition that an officer could be present and the conversation could be tape recorded. The conversation between the defendant and his wife was later admitted at the defendant’s trial. The Court ruled that the officer did not engage in “interrogation” as defined in Rhode Island v. Innis, 446 U.S. 291 (1980). The Court stated, “Officers do not interrogate a suspect simply by hoping that he will incriminate himself.” Mauro, 481 U.S. at 529.
Connecticut v. Barrett, 479 U.S. 523 (1987). The defendant was properly given his Miranda warnings and waived his rights. He said that he would not give a written statement without the presence of counsel, but he was willing to talk about the alleged crime. He then orally confessed. The Court ruled that the defendant’s invocation of his right to counsel was limited only to making written statements and did not prohibit further oral discussion with officers. See also Bruni v. Lewis, 847 F.2d 561, 564 (9th Cir. 1988) (in response to officer’s request to answer questions, defendant replied, “Not without my attorney,” and then immediately waived that right by adding, “Well, ask your questions and I will answer those I see fit.”); United States v. Ivy, 929 F.2d 147, 152 (5th Cir. 1991) (defendant’s response, “I’ll tell you, let me talk to my lawyer before I answer that,” to officer’s question, “Who can you get dynamite from?” was not general assertion of right to counsel, and officer honored request and moved to different subject).
Moran v. Burbine, 475 U.S. 412 (1986). The defendant validly waived his Miranda rights, even though officers did not inform him of his attorney’s efforts to contact him (in this case, the defendant’s Sixth Amendment right to counsel had not attached when his attorney was trying to contact him). The Court ruled that the attorney’s effort to contact the defendant, unknown by the defendant, did not affect the defendant’s capacity to waive his Miranda rights. The Court also ruled that the officers’ conduct was not so outrageous as to constitute a due process violation. See also Blair v. Armontrout, 916 F.2d 1310 (8th Cir. 1990) (defendant charged with murder made two detailed oral confessions and then agreed to make videotaped confession; he was informed that he could have attorney present but repeatedly stated that he did not want attorney; assistant public defender, who represented defendant on unrelated charge but did not and could not represent him on murder charge, saw defendant in hallway and demanded to speak to defendant but was refused by officers; court ruled that there was no Miranda violation).
Smith v. Illinois, 469 U.S. 91 (1984). When a defendant makes a clear request for counsel under Edwards v. Arizona, 451 U.S. 477 (1981), questioning must cease, and the defendant’s responses to further interrogation conducted after he or she makes a clear request may not be used to cast doubt on the initial request for counsel. The Court ruled that in this case the defendant’s statement, “Uh, yeah, I’d like to do that,” after being told of his right to counsel was a clear request for counsel, particularly since he earlier had mentioned to officers that a woman had told him to get his lawyer because the officers would railroad him. Smith, 469 U.S. at 97.
Oregon v. Bradshaw, 462 U.S. 1039 (1983). After being arrested and given his Miranda rights, the defendant talked with an officer for a while but then stated, “I do want an attorney before it goes very much further.” Id. at 1041–42. The officer immediately stopped his questioning. Sometime before or during the trip to the county jail, the defendant asked an officer, “Well, what is going to happen to me now?” Id. at 1042. The officer reminded the defendant that he did not have to talk with the officer because he had requested an attorney and said that he did not want the defendant talking to him unless the defendant wanted to. In the discussion that followed, the officer suggested a polygraph examination, and the defendant agreed to take one. The next day, after being given Miranda warnings, the defendant took a polygraph examination and eventually gave an incriminating statement.
The Court ruled that a two-part test applies when determining the admissibility of statements made after a defendant asserts a right to counsel. [Author’s note: Although it is a four-Justice plurality opinion, the ruling clearly states the prevailing law.] First, did the defendant initiate further conversation? In this case, the Court ruled that the defendant’s statement showed a willingness to discuss the investigation; it was not simply a question about the custodial relationship, such as a request for water or to use a telephone. Second, did the defendant validly waive his or her right to counsel, which he or she had previously asserted? The Court ruled that the State in this case had satisfied its burden of showing that the defendant had done so.
Wyrick v. Fields, 459 U.S. 42 (1983). The Court ruled that, considering all the circumstances, the defendant’s Fifth Amendment right to counsel under Edwards v. Arizona, 451 U.S. 477 (1981), was properly waived before officers interrogated him after he had taken a polygraph examination. The Court did not decide whether the defendant’s Sixth Amendment rights were violated. But see State v. Stephens, 300 N.C. 321 (1980) (defendant was tricked into waiving his right to counsel and privilege against self-incrimination when polygraph operator interrogated him after test phase was completed, without giving him opportunity—contrary to understanding between operator, defendant, and his lawyer—to consult with his lawyer, who was outside room; because defendant was not in custody, this case appears to be based on Sixth Amendment violation rather than Miranda right-to-counsel violation under Fifth Amendment).
Edwards v. Arizona, 451 U.S. 477 (1981). The defendant was arrested for murder, robbery, and burglary and was taken to a police station. He was properly given his Miranda warnings, properly waived his rights, and began to answer questions. However, he later told the officers, “I want an attorney before making a deal.” Id. at 479. Questioning then stopped, and the defendant was taken to the county jail. The next morning, two detectives, neither of whom had interrogated the defendant the night before, came to the jail to question him. When the jailer told the defendant that the detectives wanted to speak with him, he said that he did not want to talk with anyone. The jailer told him that he “had” to talk and then took him to meet with the detectives. After being given his Miranda rights, the defendant agreed to talk and confessed to the crimes with which he was charged.
The Court ruled that once a defendant has asserted his or her right to counsel, officers may not question the defendant until a lawyer is made available or unless the “[defendant] himself initiates further communication, exchanges, or conversations” with an officer. Id. at 485. The State may not show a valid waiver of the right to counsel, after the defendant has asserted that right, by merely establishing that the defendant waived that right later after being given another set of Miranda warnings. The Court further ruled that in this case the defendant’s rights were violated when the officers returned the following day to interrogate him. The Court noted that if the defendant had initiated the meeting, he could have properly waived his right to counsel, which he had asserted the day before. [Author’s note: The Edwards ruling was modified in part in Maryland v. Shatzer, 559 U.S. 98 (2010).]
Fare v. Michael C., 442 U.S. 707 (1979). Under the facts of this case, the juvenile’s request to speak with his probation officer was neither a request for counsel nor a request to remain silent under Miranda, and all the circumstances showed that he voluntarily and knowingly waived his rights and consented to interrogation.
North Carolina Supreme Court
State v. Boggess, 358 N.C. 676 (2004). During custodial interrogation about a murder, one of a group of officers told the defendant that he was a “lying piece of shit.” The defendant responded, “I’m not lying. I’m telling you the truth. If y’all going to treat me this way, then I probably would want a lawyer.” Id. at 686. The court ruled that the defendant’s statement was not a clear request for counsel under Davis v. United States, 512 U.S. 452 (1994), so as to require the officers to stop interrogation. The court stated that the defendant’s words reflected that he understood perfectly well his right to an attorney and was threatening to exercise it unless the officers improved their behavior.
State v. Hyatt, 355 N.C. 642 (2002). The court ruled, relying on Fare v. Michael C., 442 U.S. 707 (1979), and Davis v. United States, 512 U.S. 452 (1994), that (1) the defendant’s statements during interrogation that his father wanted him to have an attorney present and (2) the defendant’s request to speak to his father did not constitute unambiguous requests for counsel.
State v. Warren, 348 N.C. 80 (1998). [Author’s note: This case involved the trial and conviction of the defendant for a murder committed in High Point.] On May 29, 1990, the defendant requested counsel during custodial interrogation by an Asheville detective who was questioning him about a murder committed in Asheville. When the interrogation concluded, the defendant was arrested on an outstanding warrant for a motor vehicle violation and for misdemeanor larceny of the Asheville murder victim’s pocketbook. He was not, however, arrested or charged for the Asheville murder. He was represented by an attorney in Asheville district court for these charges and released on bond on June 7, 1990. The defendant was later arrested in High Point on July 20, 1990, for a South Carolina murder. He was properly given Miranda warnings and confessed to murders in South Carolina, New York, Asheville, and High Point.
The court rejected the defendant’s argument that the interrogation about the High Point murder violated his Fifth Amendment right to counsel. The court ruled, relying on a statement in McNeil v. Wisconsin, 501 U.S. 171 (1991), that the rule prohibiting re-initiation of interrogation after a defendant’s assertion of the right to counsel during custodial interrogation does not apply when there has been a break in custody (here, the defendant was released from custody on June 7, 1990, and was not arrested again until July 20, 1990).
The court rejected the defendant’s argument that the interrogation violated his Sixth Amendment right to counsel on grounds that this right is offense-specific, and adversary judicial proceedings had not begun for the High Point murder at the time of the interrogation. The court also rejected the defendant’s argument that, despite the offense-specific requirement, his Sixth Amendment right to counsel had begun for the Asheville charges, and they were inextricably intertwined with the High Point murder. [Author’s note: The later ruling in Texas v. Cobb, 532 U.S. 167 (2001), discussed below under “The Defendant’s Sixth Amendment Right to Counsel,” “Generally,” “UNITED STATES SUPREME COURT,” would also reject the defendant’s argument.]
State v. Jackson, 348 N.C. 52 (1998). Two detectives went to the defendant’s workplace and, after telling him he was not under arrest, requested that he accompany them to the sheriff’s office to answer some questions. The defendant agreed. He was told at the sheriff’s office that he was a suspect in the murder of Karen Styles. He denied any involvement. He was given Miranda rights and was again told that he was not under arrest. The defendant consented to a search of his person and to the taking of fingerprints and blood and hair samples. He was again told that he was not under arrest. After the defendant had been questioned for about three hours, the sheriff entered the interrogation room and asked the defendant, “What did you do with the rifle that Karen Styles was shot with?” The defendant replied, “I think I need a lawyer present.” (A detective’s handwritten notes, taken during the interview, read, “2:04 p.m. on 12-20-94, wants a lawyer present.”) Id. at 54. In response to the defendant’s statement, the sheriff told the defendant that he did not want the defendant to answer any more questions but that he wanted to tell him something. The sheriff then stated, “Son, I know you bought the rifle and the duct tape at K-Mart on the 28th of October. I know you were in Bent Creek on the day she was killed, and that’s fine, but you need help.” The defendant then began crying and stated, “But I didn’t mean to kill nobody. I didn’t.” He continued crying and said, “I’m sorry; I didn’t mean to kill her.” Id.
The court ruled that the defendant was in custody under Miranda when he inquired about an attorney. The court stated that a reasonable person in the defendant’s position who had been interrogated for about three hours and thought the sheriff believed that he or she had committed murder would have believed that the sheriff intended to hold him or her to be prosecuted for murder. [Author’s note: The North Carolina Supreme Court, in the later case of State v. Buchanan, 353 N.C. 332 (2001), expressly disavowed the “free to leave” test used in this case to determine custody under Miranda. Thus, it is unclear whether the court would now reach a different result on the custody issue.]
The court ruled, distinguishing Davis v. United States, 512 U.S. 452, 462 (1994) (defendant’s statement during custodial interrogation, “Maybe I should talk to a lawyer,” was not an assertion of the right to counsel), that the defendant in this case asserted the right to counsel. The court stated that the “use of the word ‘[m]aybe’ by the defendant in Davis connotes uncertainty. There was no uncertainty by the defendant. When he said, ‘I think I need a lawyer present,’ he told the officers what he thought. He thought he needed a lawyer. This was not an ambiguous statement. The interrogation should have stopped at that time.” Jackson, 348 N.C. at 56–57. The court also stated that the detective’s handwritten notes (see above), although not binding on the court, were an indication of how a reasonable officer conducting an interrogation would have interpreted the defendant’s statement. The court ruled that the defendant’s statements should have been suppressed because they resulted from interrogation that was conducted after he asserted the right to counsel. Compare with Burket v. Angelone, 208 F.3d 172, 198 (4th Cir. 2000) (defendant’s statement, “I think I need a lawyer,” was not clear assertion of right to counsel); Mueller v. Angelone, 181 F.3d 557, 575 (4th Cir. 1999) (about two hours into interrogation, defendant’s question, “Do you think I need an attorney here?” was not unequivocal request for counsel).
State v. Coffey, 345 N.C. 389 (1997). The defendant was arrested for murder, jailed, and two attorneys were appointed to represent him. The attorneys requested that the district attorney conduct a polygraph examination on the defendant but did not express any desire to accompany their client to the polygraph site. When the defendant was being removed from his jail cell for the polygraph examination, he told a deputy sheriff that he wanted to call his attorney. The deputy declined to allow the defendant to do so because the policy of the sheriff’s office did not permit a prisoner to make a telephone call while being transported from one facility to another. Later, when the polygraph operator was explaining the polygraph procedures to the defendant, the defendant stated that he did not tell investigating officers the truth about money taken from the murder victim. The operator asked him what he did not tell the truth about. The defendant said that he was handed the money by his accomplice and the accomplice “went off.” The operator did not ask any further questions; instead, he conducted the polygraph examination. After the examination, the operator informed the defendant that he had not passed the polygraph about the murder and robbery. The defendant then made an incriminating statement. The operator asked the defendant if he would be willing to talk to one of the investigating officers. The defendant named a particular officer and later repeated the same incriminating statement to that officer.
The court ruled that the defendant was not being interrogated in violation of Edwards v. Arizona, 451 U.S. 477 (1981) (interrogation is not permitted after defendant has asserted right to counsel), when he made his statements to the polygraph operator and the investigating officer. These statements were volunteered by the defendant. Thus, neither his Fifth nor Sixth Amendment rights to counsel were violated. The court alternatively ruled, assuming that the defendant was being interrogated, that the defendant initiated the communication with the polygraph operator and the investigating officer. See, e.g., Oregon v. Bradshaw, 462 U.S. 1039 (1983).
State v. Munsey, 342 N.C. 882 (1996). After the defendant had been arrested and given Miranda rights, he told officers that he would like to have a lawyer. At the defendant’s request, an officer called a particular lawyer but was unable to reach him. The defendant then asked the officer to call his brother and said “that would do instead of” the lawyer. In response to the officer’s telephone call, the defendant’s brother came to the law enforcement office where the defendant was located and conferred in private with him for about fifteen to twenty minutes. After the defendant’s brother left, the officers went into the office and asked the defendant if he was ready to talk to them at that time. The defendant answered affirmatively. The officers then questioned the defendant and obtained a statement. The court ruled that this evidence showed that the defendant did not initiate the conversation with officers after his brother left and that, therefore, the officers’ questioning violated the ruling in Edwards v. Arizona, 451 U.S. 477 (1981).
State v. Gibson, 342 N.C. 142 (1995). Officers who were investigating a homicide properly gave a 15-year-old his juvenile custodial interrogation rights under G.S. 7A-595(a) (now, G.S. 7B-2101(a)) and obtained a waiver of those rights. The juvenile argued on appeal that his waiver of rights was involuntary as a matter of law because the officers did not inform the juvenile that his parents and attorney were at the police station at the time of the interrogation. The court, relying on Moran v. Burbine, 475 U.S. 412 (1986), and State v. Reese, 319 N.C. 110 (1987), rejected the juvenile’s argument. The court stated that law enforcement officers are not required to inform a juvenile that his parents or attorney are present before taking a voluntary confession, and the failure to do so does not make the juvenile’s confession involuntary as a matter of law or otherwise inadmissible at trial. [Author’s note: This ruling would not apply to a juvenile under age 14 because a parent, guardian, custodian, or attorney of a juvenile that age must be present during custodial interrogation.]
State v. Daughtry, 340 N.C. 488 (1995). The defendant voluntarily went with two officers to the police station to be questioned about a murder. The officers advised the defendant that he was not under arrest and could leave at any time. One officer advised the defendant of his Miranda rights as a precaution. The defendant waived those rights. After some conversation between the officers and the defendant, the defendant said, “I think I need to speak to a lawyer.” Id. at 505. One officer handed the defendant the telephone directory opened to the yellow pages with attorney listings. As he did so, the officer told the defendant that he could talk to a lawyer and continue to talk to the officers if he wished. The defendant briefly looked at the yellow pages and then told the officers that he was willing to talk to them. One officer reminded the defendant of his right to remain silent and his right to an attorney; the defendant indicated that he understood his rights. The defendant had not been placed under arrest. He then confessed.
The court ruled that because the defendant was not in custody when he requested an attorney, his rights under Miranda and Edwards v. Arizona, 451 U.S. 477 (1981), were inapplicable. Therefore, the court did not need to decide whether the trial judge had erred in concluding that the defendant had voluntarily re-initiated interrogation after requesting an attorney. See also Burket v. Angelone, 208 F.3d 172, 197 (4th Cir. 2000) (defendant’s assertion in police station, “I’m gonna need a lawyer,” when he was there voluntarily, was not an assertion of counsel under Miranda because he was not in custody when he made that statement).
State v. Harris, 338 N.C. 129 (1994). North Carolina law enforcement officers went to Georgia to return the defendant to North Carolina for a first-degree murder charge pending in North Carolina. After properly being advised of his Miranda rights, the defendant asserted his right to counsel. No interrogation was conducted. After his return to North Carolina twelve hours later, the defendant, through his brother (who was visiting the defendant in jail), asked to talk to the sheriff.
The court ruled as follows: (1) The defendant initiated communication with the sheriff by telling his brother to inform the sheriff that he wanted to speak with him. (2) The sheriff was not required to give Miranda warnings again before interrogating the defendant based on the facts in this case; see generally State v. McZorn, 288 N.C. 417 (1975). The court stated that there was no reason to believe that the defendant, having been properly advised of his Miranda rights twelve hours earlier, had forgotten them. For example, he should have known of his right to an attorney because he had exercised that right twelve hours earlier.
State v. Barber, 335 N.C. 120 (1993). A fire occurred at a home in which the 15-year-old defendant and her grandparents lived. Both grandparents died as a result of the fire. The court, assuming without deciding that the defendant was in custody when she was given Miranda and juvenile warnings in the sheriff’s office hours after the fire, ruled—distinguishing State v. Torres, 330 N.C. 517 (1992)—that the defendant did not assert her Fifth Amendment right to counsel when she asked an officer during his recitation of the warnings if she needed a lawyer. Her inquiry constituted an ambiguous or equivocal invocation of her right to counsel. The officer’s response—that he could not advise her whether she needed a lawyer or not and that he was merely advising her about her right to a lawyer—was a proper narrow response to clarify her intent. Immediately thereafter, the defendant’s specific affirmative waiver of her rights (including whether she wished to answer questions without a lawyer, parents, guardian, or custodian present) demonstrated that she had not invoked her right to counsel when she asked the officer if she needed a lawyer.
State v. Gibbs, 335 N.C. 1 (1993). On May 31, 1990, the defendant was in custody at a police department as a murder suspect. He had not yet been given Miranda warnings or interrogated. About fifteen minutes before being taken to the magistrate’s office for service of arrest warrants charging him with murder and other offenses, the defendant asked Officer Batchelor if he had to get an attorney (the defendant’s inquiry was not in response to questions by the officer). Batchelor told the defendant that the question of a lawyer had to be his decision and asked the defendant if he could afford to hire an attorney. The defendant said that he could not, and Batchelor then told him that the court would appoint an attorney to represent him if he asked for one. About an hour later, Batchelor and another officer gave the defendant Miranda warnings, properly obtained a waiver, and took a statement from the defendant. The officers obtained another statement from the defendant on June 3, 1990. The defendant had a first appearance in district court on June 4, 1990, which was within ninety-six hours of his arrest on May 31, 1990.
Distinguishing State v. Torres, 330 N.C. 517 (1992), the court ruled that the defendant did not assert his Fifth Amendment right to counsel when he asked Officer Batchelor if he had to get an attorney. Unlike in Torres, in this case interrogation was not impending and the defendant had not been told that he would be questioned. Batchelor’s responses to the defendant’s question about an attorney constituted narrow clarification, and the defendant did not ask for an attorney afterward. Moreover, Batchelor did not attempt to dissuade the defendant from exercising his right to an attorney. Based on the entire context in which the defendant’s inquiry was made, the defendant did not assert his right to counsel.
State v. Medlin, 333 N.C. 280 (1993). Atlantic Beach officers arrested the defendant in a breezeway outside a motel room in Atlantic Beach for a murder and robbery committed in Wake County, based on a mistaken belief that an arrest warrant had been issued in Wake County for these offenses. The court determined, however, that the Atlantic Beach officers had sufficient information to establish probable cause to arrest based on the facts in this case. Therefore, the warrantless arrest of the defendant was proper. When the Atlantic Beach officers learned, after they had brought the defendant to the police station, that there were no arrest warrants for him, they told him that he was not under arrest and was free to leave. They also told him that investigators were coming from Wake County and wanted to talk to him, that he could stay and move around the police station at will, and that he should let them know if he needed anything. The defendant indicated that he wanted to stay and in fact remained there and later gave statements to the officers. Based on these and other facts, the court concluded that when the defendant gave the statements to the officers, he was no longer in custody and that, therefore, he was not entitled to Miranda rights, including the right to counsel under Edwards v. Arizona, 451 U.S. 477 (1981). Therefore, the court ruled that it was unnecessary to decide whether the defendant properly waived his right to counsel.
State v. Pope, 333 N.C. 106 (1992). The defendant invoked his right to counsel on two occasions: (1) on September 17, 1987, when he told a detective that he did not want to answer any questions then but that he might be willing to make a statement after he talked with a lawyer and (2) on October 2, 1987, when he told a detective that he did not want to talk until he conferred with an attorney. The court ruled that, based on the facts in this case, detectives later improperly initiated interrogation about unrelated crimes (the defendant had remained in continuous custody after his assertions for counsel) in violation of the ruling in Arizona v. Roberson, 486 U.S. 675 (1988).
State v. Morris, 332 N.C. 600 (1992). An officer advised an in-custody defendant of his Miranda rights and asked him if he would like to waive his right to counsel. The defendant responded, “I don’t know.” The officer then asked him if he would sign a waiver-of-counsel form. The defendant responded, “No, because I don’t know how much I want to tell you.” Id. at 609. The court ruled that the defendant invoked his right to counsel when he refused to sign the waiver form.
State v. Tucker, 331 N.C. 12 (1992). The defendant was indicted for murder on April 18, 1988. On April 20, 1988, the defendant made his first appearance in district court, and a lawyer was appointed to represent him. Later that day, the defendant met with his lawyer, who told him not to talk with anyone without counsel. On April 21, 1988, the investigating officer met with the defendant (not at the defendant’s initiative) in the county jail and stated that he wanted the defendant to go with him to another county to look for the murder victim’s body. The defendant told the officer what his lawyer had said. The defendant also tried twice—unsuccessfully—to call his lawyer. The officer told the defendant that they needed to hurry and commented that he was after the defendant’s accomplice, not necessarily the defendant. The officer later obtained incriminating statements from the defendant, which were introduced at his murder trial. The court ruled that the officer violated the defendant’s Fifth and Sixth Amendment rights to counsel.
State v. Torres, 330 N.C. 517 (1992). The defendant shot and killed her husband in their home in the early evening. Deputy sheriffs arrived to investigate the shooting. A deputy sheriff transported the defendant and her close friend to the sheriff’s department. From 7:00 p.m. to 10:00 p.m., the defendant was in the department’s conference room with that deputy sheriff and was during that time informed that her husband had died. Sometime during that period, the sheriff entered the room. The defendant asked him whether she needed a lawyer and was told that she did not need a lawyer right now. About 10:00 p.m., the defendant was taken to the sheriff’s office, where she was told that she would be interviewed by two other officers. Although she was never informed that she was under arrest, she also was never told that she was free to leave.
(1) The court ruled that a reasonable person in the defendant’s position—knowing that he or she had just shot his or her spouse and having been brought to the sheriff’s department by a deputy, kept under constant supervision there, and never informed that he or she was free to leave—would feel compelled to stay and was, therefore, in custody under Miranda.
(2) The court rejected the State’s argument that the defendant could not have invoked her right to counsel because she was not being questioned when she asked about a lawyer. The court ruled that a defendant in custody may assert his or her right to have counsel present during his or her impending interrogation before Miranda warnings are given and interrogation begins. [Author’s note: The court distinguished contrary dicta in McNeil v. Wisconsin, 501 U.S. 171 (1991), by noting that the United States Supreme Court suggested that a defendant cannot anticipatorily invoke Miranda rights when not in custody. However, the court incorrectly described the dicta because the dicta gave an example—arraignment in court—that clearly can occur when someone is in custody and attempting to invoke Miranda rights anticipatorily.]
(3) The court rejected the State’s argument that a defendant’s invocation of the right to counsel must be precise and unequivocal. The court stated that the crucial determination is whether the defendant has indicated in any manner a desire to have the assistance of a lawyer during custodial interrogation; thus, a court must examine not only the defendant’s spoken words but also the context in which they are spoken. The court ruled, based on facts of this case, that the defendant indicated, at least once, a desire to have an attorney during interrogation. Even if the defendant’s statements were construed to be an equivocal request for counsel (in which case, the officers were required to immediately stop interrogation, except for questions narrowly designed to clarify the defendant’s actual intent), the result—suppression of the defendant’s confession—would remain the same because the officers did not seek to clarify the defendant’s intent. Instead, they dissuaded the defendant from exercising her right to have a lawyer present during custodial interrogation. The court concluded that the defendant invoked her right to counsel and that the later officer-initiated custodial interrogation violated her Miranda rights. Therefore, her statements were inadmissible as substantive evidence at trial.
[Author’s note: The court’s ruling and analysis discussed in (3), above, now appear to be inconsistent with the later ruling in Davis v. United States, 512 U.S. 452 (1994). See the discussion in State v. Little, 203 N.C. App. 684 (2010).] See also United States v. Kelsey, 951 F.2d 1196 (10th Cir. 1991) (after being arrested in his home for drug charges, defendant asked to see his lawyer three or four times; officers told him that they could not question him further if they allowed him to see his lawyer; they later give him Miranda warnings; court ruled that defendant’s request for counsel came within Edwards v. Arizona, 451 U.S. 477 (1981)); Tukes v. Dugger, 911 F.2d 508 (11th Cir. 1990) (court stated in dicta that if defendant was given Miranda warnings when not in custody and invoked his right to counsel, officers would not be free to ignore defendant’s invocation). But see United States v. Lennick, 917 F.2d 974 (7th Cir. 1990) (officer’s conversation in courthouse hallway occurred while defendant was not in custody; officer therefore did not have to stop conversation when defendant said he had a lawyer who wanted to be present at any questioning).
State v. McQueen, 324 N.C. 118 (1989). (1) The defendant, after being arrested in a river gorge and given Miranda warnings, asserted his right to counsel. As the defendant and a highway patrolman were leaving the gorge, the patrolman stated, “I guess you’re tired and hungry.” Id. at 127. The court ruled that this statement and subsequent conversations between the two men in the river gorge were not interrogation, just “generalized questions,” and therefore did not violate the defendant’s Miranda rights. (2) Later, State Bureau of Investigation (SBI) agents at a law enforcement facility, without knowing that the defendant had asserted his right to counsel in the river gorge, gave the defendant Miranda warnings and began interrogation. Eventually, the defendant, after asserting his right to counsel to the agents but then later initiating a conversation with them, made incriminating statements. The court ruled that the SBI agents’ actions did not violate Arizona v. Roberson, 486 U.S. 675 (1988), discussed above in this section under “UNITED STATES SUPREME COURT,” and Edwards v. Arizona, 451 U.S. 477 (1981), discussed above in this section under “UNITED STATES SUPREME COURT.” [Author’s note: It is unclear whether this ruling is consistent with those United States Supreme Court decisions because the SBI agents at the law enforcement facility initiated questioning after the defendant had asserted his right to counsel in the river gorge. The ruling in Oregon v. Bradshaw, 462 U.S. 1039 (1983), discussed above in this section under “UNITED STATES SUPREME COURT,” might justify the agents’ actions, but the court did not discuss that ruling and its applicability to the defendant’s conversations with the highway patrolman in the river gorge.]
State v. Allen, 323 N.C. 208 (1988). When a defendant who was in custody asserted his right to counsel, officers stopped interrogating him. One officer told the defendant that all he wanted was the truth, that the defendant would be returned to his jail cell, and that there would be no further interviews with him. He informed the defendant that if he wished to have a further conversation, he should call an officer. Another officer told the defendant the name of the specific officer he should contact if he decided to call an officer. The defendant then said, “Okay,” and added, “I want to talk to you now, man.” Id. at 216. The court ruled that the officers’ statements after the defendant’s assertion of the right to counsel did not violate Edwards v. Arizona, 451 U.S. 477 (1981), because they were not interrogation.
State v. Nations, 319 N.C. 318; 319 N.C. 329 (1987). The defendant was arrested for a sex offense with a child, placed in jail, and given Miranda warnings. He asserted his right to counsel and interrogation stopped. The defendant was provided a first appearance in district court and counsel was appointed. About a week later, the defendant told a volunteer jailer that he wanted to speak with someone from mental health services. The protective-services supervisor of the social services department was visiting in the jail and spoke with the defendant, who confessed to him. The defendant told the supervisor that he would be willing to talk with an officer. An officer arrived, gave the defendant Miranda warnings, and obtained a waiver. The defendant also confessed to the officer. The court ruled that the social services worker was not an agent of any law enforcement officer, the defendant initiated both contacts and volunteered his confession, and therefore no interrogation took place. Neither the defendant’s Fifth nor Sixth Amendment rights were violated.
State v. Reese, 319 N.C. 110 (1987). The defendant was arrested for murder, he asserted his right to counsel during custodial interrogation, and interrogation stopped. He was appointed counsel at his first appearance in district court. The defendant’s lawyer instructed officers not to question his client. However, in his lawyer’s absence, the defendant sought out an officer to make a statement. The officer reminded the defendant that he had appointed counsel, truthfully told him that his lawyer was unavailable because he was out of town, and asked the defendant if he still wanted to talk with him. The defendant stated that he still wanted to make a statement. He then voluntarily, knowingly, and intelligently waived his Fifth and Sixth Amendment rights to counsel before he gave a statement; the officer specifically reminded him that he had appointed counsel.
The court ruled that the defendant’s waiver was valid despite the fact that the officer did not inform the defendant of his lawyer’s instruction to the officers; his lawyer’s instruction was irrelevant in determining the validity of the defendant’s waiver of counsel. The Fifth and Sixth Amendment right to counsel belongs to the defendant; a defendant’s attorney cannot control the defendant’s own exercise of his or her constitutional rights. To the extent that State v. Bauguss, 310 N.C. 259 (1984), indicated that a lawyer can control access to his or her client under these circumstances, it was overruled. See also State v. Hyatt, 355 N.C. 642 (2002) (similar ruling).
State v. Jenkins, 311 N.C. 194 (1984). After receiving proper Miranda warnings and waiving his rights, the defendant asserted his right to counsel and questioning stopped. As he was entering the booking area of the police station, the defendant asked an officer—for whom he had been acting as an informant—to come see him the next morning in jail. When the officer arrived there the following day, he asked the jailer to check whether the defendant still wanted to see him; the defendant did. The officer gave the defendant his Miranda warnings and obtained a waiver. The defendant then confessed.
The court ruled that the officer’s conduct was proper under the rulings of Edwards v. Arizona, 451 U.S. 477 (1981), and Oregon v. Bradshaw, 462 U.S. 1039 (1983). See also State v. Williams, 314 N.C. 337 (1985) (delivery of inventory form to defendant after he asserted right to counsel was not initiation of conversation); State v. Thomas, 310 N.C. 369, 376 (1984) (officer’s statement to defendant after he asserted his right to counsel, “Be sure to tell your attorney that you had the opportunity to help yourself and didn’t,” was not interrogation in violation of Edwards); State v. Lang, 309 N.C. 512 (1983) (appellate court set out trial judge’s duty to make findings resolving material conflicts about (1) who initiated conversation after defendant asserted right to counsel and (2) whether defendant waived his right to counsel and right to silence under all the circumstances).
State v. Bauguss, 310 N.C. 259 (1984). The court ruled that the defendant’s lawyer could not control an officer’s access to the defendant so that the officer could question the defendant on charges unrelated to the charges for which the lawyer represented him. Thus, the lawyer could not assert the defendant’s right to counsel under Edwards v. Arizona, 451 U.S. 477 (1981). In this case, the defendant himself validly waived his Miranda rights (his Sixth Amendment right to counsel had not attached yet) and agreed to talk with officers.
State v. Franklin, 308 N.C. 682 (1983). The defendant invoked his right to counsel under Edwards v. Arizona, 451 U.S. 477 (1981), for one murder but had not yet invoked his right to counsel for an unrelated murder. While the defendant was in jail for a third set of unrelated charges, an officer wanted to renew questioning for the murder for which the defendant had invoked his right to counsel—although the officer did not know that the defendant had done so. Before the officer questioned him about any case, the defendant began to discuss and then confessed to the murder for which he had not invoked his right to counsel. The court stated that it need not decide whether the officer could have initiated questioning about either murder because the defendant gave an unsolicited confession about a murder that the officer had not intended to question him about and, therefore, there was no Edwards violation.
North Carolina Court of Appeals
State v. Taylor, 247 N.C. App. 221 (2016). The court ruled that the defendant, a 19-year-old, never invoked his right to counsel in a custodial interrogation. It summarized the relevant facts as follows:
After the defendant refused to sign a Miranda waiver form, explaining that his grandmother told him not to sign anything, Morse asked, “Are you willing to talk to me today?” The defendant responded, “I will. But [my grandmother] said—um—that I need an attorney or a lawyer present.” Morse responded, “Okay. Well you’re nineteen. You’re an adult. Um—that’s really your decision whether or not you want to talk to me and kind-of clear your name or—” The defendant then interrupted, “But I didn’t do anything, so I’m willing to talk to you.” Id. The defendant then orally waived his Miranda rights. The court ruled that the defendant’s question, “Can I speak to an attorney?”—made during his phone conversation with his grandmother—was “ambiguous [as to] whether defendant was conveying his own desire to receive the assistance of counsel or whether he was merely relaying a question from his grandmother.” Id. The defendant’s later statement—“But [my grandmother] said—um—that I need an attorney or a lawyer present”—was “also not an invocation since it [did] not unambiguously convey defendant’s desire to receive the assistance of counsel.” Id. at 230 (internal quotation marks, citation omitted). The court went on to note: “A few minutes later, after Detective Morse advised defendant of his Miranda rights, he properly clarified that the decision to invoke the right to counsel was defendant’s decision, not his grandmother’s.” Id.
State v. Quick, 226 N.C. App. 541 (2013). The court rejected the State’s argument that the defendant initiated contact with police following his initial request for counsel and thus waived his right to counsel. After the defendant asserted his right to counsel, the police returned him to the interrogation room and again asked if he wanted counsel; he said yes. Then, on the way from the interrogation room back to the jail, a detective told the defendant that an attorney would not be able to help him and that he would be served with warrants regardless of whether an attorney was there. The court ruled that the police knew or should have known that telling the defendant that an attorney could not help him with the warrants would be reasonably likely to elicit an incriminating response. It was only after this statement by police that the defendant agreed to talk. Therefore, the court concluded, the defendant did not initiate the communication. The court also concluded that even if the defendant had initiated communication with police, his waiver of his right to counsel was not knowing and intelligent. The trial court had found that the prosecution failed to meet its burden of showing that the defendant made a knowing and intelligent waiver, relying on the facts that the defendant was 18 years old and had limited experience with the criminal justice system. There was a period of time between 12:39 and 12:54 p.m. on the day the defendant was questioned when there was no evidence as to what occurred and no audio or video recording of the interview. The court found that the defendant’s age and inexperience, when combined with the circumstances of his interrogation, supported the trial court’s conclusion that the State failed to prove the defendant’s waiver was knowing and intelligent.
State v. Cureton, 223 N.C. App. 274 (2012). The court ruled that the defendant did not unambiguously ask to speak to a lawyer. The court rejected the defendant’s argument that he made a clear request for counsel, concluding as follows: “Defendant never expressed a clear desire to speak with an attorney. Rather, he appears to have been seeking clarification regarding whether he had a right to speak with an attorney before answering any of the detective’s questions.” The court added: “There is a distinct difference between inquiring whether one has the right to counsel and actually requesting counsel. Once defendant was informed that it was his decision whether to invoke the right to counsel, he opted not to exercise that right.” Id. at 286.
State v. Moses, 205 N.C. App. 629 (2010). The court ruled that the trial court did not err by denying the defendant’s motion to suppress when, although the defendant initially invoked his Miranda right to counsel during a custodial interrogation, he later re-initiated conversation with an officer. The defendant was not under the influence of impairing substances, no promises or threats were made to him, and the defendant was again fully advised of and waived his Miranda rights before he made the statement at issue.
State v. Little, 203 N.C. App. 684 (2010). The defendant was convicted of first-degree murder. He voluntarily drove to the police station about six hours after the shooting. There was no warrant for the defendant’s arrest, and the police had not attempted to contact him or request his presence for an interview. A detective who knew the defendant met him in the public lobby and invited him into a secure area that required a passkey for entry, but anyone could leave the secure area without a key. The detective patted him down for weapons (the defendant did not object to the frisk) and told him that a detective wanted to speak with him. The other detective arrived and told the defendant that he was not under arrest and was free to leave. The defendant voluntarily accompanied the detective and another officer to a room upstairs in the station. The defendant was later told on two different occasions that he was not under arrest and was free to leave. Unknown to the defendant, the other officer entered an adjacent room and took notes on the interview. Also, another detective stayed in the hallway outside the room to keep the defendant from leaving, but the defendant was unaware of the detective’s intentions. The detective began to question the defendant about his actions during the day and about the shooting. At one point, the defendant asked if he needed an attorney. The detective replied, “I don’t know, I can’t answer that for you, are you asking for one?” Id. at 686. The defendant did not reply to this question and continued talking with the detective. At another point the defendant stood up and said, “I’m trying to leave, I didn’t do it.” Id. at 689. The detective did not restrain the defendant, who then sat back down and continued talking. The defendant made inculpatory statements that he sought to suppress.
The court ruled that the defendant was not in custody so as to require Miranda warnings. The facts did not show the indicia of an arrest. The court relied on State v. Gaines, 345 N.C. 647 (1997), and other cases. Also, the presence of a note-taking officer and an officer’s unarticulated determination not to let the defendant leave had no bearing on whether the defendant was in custody, because the defendant was unaware of these facts. The defendant argued on appeal, relying on State v. Torres, 330 N.C. 517 (1992) (when defendant makes ambiguous request for counsel, interrogation must stop except for narrow questions designed to clarify defendant’s intent), that he made a sufficiently unambiguous request for counsel to require that questioning be stopped. The court first noted that because the defendant was not in custody when the interview occurred, the defendant was not entitled to Miranda protections. [Author’s note: That is, the defendant’s purported assertion of the right to counsel did not require the officer to stop the noncustodial interrogation because Miranda protections were inapplicable.] The court then stated that as a guide to trial courts, it would address the defendant’s argument about the request for counsel. The court noted that Torres was decided before Davis v. United States, 512 U.S. 452 (1994) (Court rejected requirement that officer must stop interrogation when defendant makes ambiguous or equivocal request for counsel to ask questions clarifying whether defendant wants a lawyer.) The later ruling in State v. Dix, 194 N.C. App. 151 (2008), stated that the trial court’s assumption that the officer was required to ask clarifying questions, and its later conclusion that it was required to resolve any ambiguity in the defendant’s favor, was error. In Little, the defendant did not unambiguously ask for an attorney; rather, he asked for the detective’s opinion about the matter. The detective went beyond federal and state case law when he asked a clarifying question: “Are you asking for one?”
State v. Allen, 200 N.C. App. 709 (2009). After being advised of his Miranda rights at the police station, the defendant asserted his right to counsel by naming an attorney he wanted to be present before answering questions. An officer, during a conversation with the defendant about the officer’s unsuccessful efforts to locate the attorney, told the defendant that he was being detained and charged with second-degree murder. The defendant told the officer that he wanted to talk with the officer “right now.” The court ruled, relying on State v. Leak, 90 N.C. App. 351 (1988), that the officer did not violate the defendant’s assertion of the right to counsel when he informed the defendant of the charge against him.
State v. Herrera, 195 N.C. App. 181 (2009). Officers obtained an arrest warrant charging the defendant with first-degree murder. They notified Virginia authorities of the warrant because it was believed the defendant might be there. A Spanish interpreter called the defendant’s grandmother in Honduras to determine if the defendant had returned there. The grandmother expressed concern about the defendant and asked the interpreter to notify her if law enforcement found him. The defendant was eventually arrested in Virginia and taken to Durham. During interrogation, in which the same interpreter was used, the defendant asserted the right to counsel, and questioning stopped. The officer then prepared to take the defendant to a magistrate. The interpreter advised the officer of his call to the grandmother in Honduras and her desire to be notified when the defendant was in custody. The officer then allowed the interpreter to place a call on speaker phone to the defendant’s grandmother and offered to let the defendant speak with her, to which the defendant assented. He and his grandmother conversed in Spanish over the speaker phone in the presence of the officer and interpreter, with the interpreter translating for the officer. During the call, the grandmother asked the defendant, “Son, did you do this?” and he replied affirmatively. The grandmother told him to tell the truth to the police, and he indicated that he would. Thereafter, the defendant re-initiated interrogation with the officer by informing the interpreter that he wanted to tell the truth.
The court ruled, relying on Arizona v. Mauro, 481 U.S. 520 (1987), that the officer did not conduct interrogation after the defendant had asserted the right to counsel. There was no evidence to show that the phone call to the defendant’s grandmother was made to elicit incriminating statements from the defendant or that she was acting as an agent of the officer. In addition, a suspect in the defendant’s position would not have felt coerced to incriminate himself or herself by being permitted to speak with his or her grandmother via speaker phone in the presence of an officer and interpreter.
State v. Dix, 194 N.C. App. 151 (2008). Officers arrested the defendant at his residence for various felony sex offenses. Before being transported to the police station, the defendant indicated his willingness to talk to one of the arresting officers (hereinafter, detective). The detective told the defendant to wait until they arrived at the jail. She said that at the police station, she would first advise the defendant of his rights and then listen to his side of the story. While being transported, the defendant made a brief unsolicited oral confession to another officer, who related this information to the detective. At the police station, the detective gave Miranda warnings to the defendant. She asked the defendant if he understood his rights, and the defendant responded, “Yeah.” The detective then said, “Okay. And will you answer some questions for me?” The defendant said, “I’m probably gonna have to have a lawyer.” Id. at 153. The officer explained that it was up to him whether he wanted to answer questions or not, and the defendant eventually agreed to talk and signed a Miranda waiver-of-rights form. The court ruled, relying on Davis v. United States, 512 U.S. 452 (1994) (suspect must unambiguously request counsel), and distinguishing State v. Torres, 330 N.C. 517 (1992), that the defendant’s statement was not a clear request for counsel. The court noted that the defendant’s statement must be considered in the context of what had occurred beforehand. The court stated that the defendant’s statement here was ambiguous because no reasonable officer under the circumstances would have understood the defendant’s words as an unambiguous request for a lawyer at that moment, as opposed to a mere comment about the likelihood that the defendant would eventually require an attorney in this matter, which he surely anticipated would involve criminal proceedings.
State v. Shelly, 181 N.C. App. 196 (2007). The defendant was convicted of first-degree murder. During custodial interrogation, the defendant asked general questions about when he would get a lawyer, and the officer truthfully told him that unless he had a personal lawyer, one would be appointed when he went to court. The court noted the informative nature of the conversation: the defendant asked questions and received answers from the officer in an effort to understand his rights and the interview process before choosing to invoke or forego his right to counsel. The court ruled, distinguishing State v. Torres, 330 N.C. 517 (1992), and State v. Steptoe, 296 N.C. 711 (1979), that the defendant did not make a clear request for counsel so as to require the officer to stop the interrogation.
State v. Ash, 169 N.C. App. 715 (2005). The defendant was arrested for murder and other offenses. After being advised during an officer’s giving of Miranda rights of his right to have an attorney present, the defendant asked, “Now?” The officer responded affirmatively. The defendant then asked, “Where’s my lawyer at? [Inaudible] come down here?” The officer replied that the lawyer who was representing the defendant on a pending, but unrelated, breaking and entering charge had nothing to do “with what [he was] going to talk to [defendant] about.” The defendant responded, “Oh, okay,” and signed a waiver-of-rights form. Id. at 723. The court ruled that the defendant did not clearly invoke his right to counsel under the ruling in Davis v. United States, 512 U.S. 452 (1994), and thus his Miranda rights were not violated. During the officer’s interrogation, the defendant confessed that he and others had planned to commit a robbery but ended their plan when they drove by the murder victim’s mobile home and observed all the interior lights illuminated there. After the officer asked the defendant whether he was “scared” when the gun “went off,” the defendant stated, “I don’t want to talk no more ’cause you’re talking some crazy shit now.” The officer continued to question the defendant, stating, “You didn’t even know how many people was [sic] in the house, did you?” The defendant responded, “That’s why the fuck I didn’t stop,” and the interrogation continued. Id. at 724. The defendant continued to deny his involvement in the crime but admitted his participation after further questioning. The court ruled, relying on State v. Golphin, 352 N.C. 364 (2000), that the defendant did not clearly invoke his right to remain silent under Miranda. The court upheld the trial judge’s finding that despite the defendant’s statement about not talking any more, the defendant continued to talk without significant prompting by the officer.
State v. Strobel, 164 N.C. App. 310 (2004). Three people were involved in an armed robbery. The defendant was arrested for conspiracy to commit the armed robbery, appeared in district court, and requested and was appointed an attorney in December 2001. Based on additional information implicating her as a participant in the robbery, an officer arrested the defendant in January 2002 for armed robbery. The officer did not orally advise the defendant of her Miranda rights. Instead, he gave her a written form and asked her to read it. She signed each page of the statement that acknowledged that she had read it. During her interrogation, the defendant mentioned that she had a court-appointed attorney representing her on the conspiracy charge. The officer told the defendant that she could use the telephone and telephone book located in the room to call her attorney. He also told her that he would stop the interrogation until she had the opportunity to talk to her lawyer. The court ruled, relying on Davis v. United States, 512 U.S. 452 (1994), that the defendant did not unequivocally assert her right to counsel during custodial interrogation when she mentioned that she had an attorney for a related charge.
State v. Little, 133 N.C. App. 601 (1999). The defendant asserted his right to counsel after his arrest. A detective, who did not know of this assertion, approached the defendant and began to read Miranda rights to the defendant. [Author’s note: A defendant’s assertion of the right to counsel is imputed to all officers regardless of their knowledge of the defendant’s assertion. See Arizona v. Roberson, 486 U.S. 675 (1988).] The defendant interrupted the detective and informed him that although he had told another officer that he wanted an attorney, he had changed his mind and now wanted to talk about the criminal charges. The detective properly gave Miranda warnings and obtained a waiver of rights, and then the defendant gave a statement to the detective.
The court ruled, relying on State v. Underwood, 84 N.C. App. 408 (1987), and other cases, that the defendant re-initiated conversation with the detective after asserting his right to counsel. Thus, the defendant’s statement was admissible at trial. [Author’s note: This ruling does not appear to be consistent with Arizona v. Roberson, cited supra, and statements in Minnick v. Mississippi, 498 U.S. 146, 153 (1990) (“we now hold that when counsel is requested, interrogation must cease, and officials may not reinitiate interrogation without counsel present, whether or not the accused has consulted with his attorney”). Although an officer’s reading of Miranda rights may not constitute interrogation, it is a part of the process of re-initiating interrogation that is prohibited once a defendant has asserted the right to counsel.]
State v. Davis, 124 N.C. App. 93 (1996). The defendant was given his Miranda warnings and properly waived them. Before questioning began, the defendant requested permission to make a phone call and was allowed to do so. After the phone call, the defendant told a law enforcement officer that “somebody at [his] office told [him he] needed a lawyer.” The officer responded, “Well, that’s your decision.” The defendant then asked, “Do I need a lawyer?” and the officer replied, “That is your decision; I can’t make that decision for you.” Id. at 95. The defendant did not respond and followed the officer into an office to be questioned. He eventually confessed. The court ruled, relying on State v. Barber, 335 N.C. 120 (1993), discussed above in this section under “NORTH CAROLINA SUPREME COURT,” that the defendant did not invoke his right to counsel based on the facts in this case. See also Diaz v. Senkowski, 76 F.3d 61 (2d Cir. 1996) (“Do you think I need a lawyer?” was not clear assertion of right to counsel).
State v. Easterling, 119 N.C. App. 22 (1995). [Author’s note: To better understand the summary of this appellate case, one should know that the defendant was tried and convicted of multiple counts of rape and sexual offense that he committed with his accomplice, Sherman White.] After a detective gave the defendant his Miranda warnings, the defendant asserted his right to counsel. The detective later informed the defendant that he would be taken to the magistrate’s office to be served with arrest warrants. The detective then said, “Who was Sherman?” The defendant said, “White.” Just a few moments later, the defendant indicated that he wanted to talk about the case. The detective then gave him Miranda warnings and obtained a waiver, and the defendant gave an incriminating statement that was introduced in the State’s case in chief at trial.
The court ruled that the detective’s question constituted interrogation: it was designed to elicit an incriminating response and therefore was improper under Edwards v. Arizona, 384 U.S. 436 (1981), because it was made after the defendant’s assertion of his right to counsel. In addition, the defendant’s statement a few moments later that he was willing to talk about the case was a continuation of the improper interrogation (that is, it was not simply the defendant’s initiation of communication with the detective). Thus, the defendant’s confession was inadmissible at trial. The court also ruled that, based on the State’s overwhelming evidence against the defendant in this case, the defendant was not induced to testify in his behalf because of the introduction in the State’s case in chief of this illegally obtained confession; see generally Harrison v. United States, 392 U.S. 219 (1968).
State v. Willis, 109 N.C. App. 184 (1993). The defendant did not validly assert a Fifth Amendment violation when he requested counsel during an interview with law enforcement officers because he was not in custody when he made the request.
State v. Greime, 97 N.C. App. 409 (1990). An officer discussed Miranda warnings with the defendant, who said that he understood them and then answered “yes” to the officer’s question, “Having these rights in mind, do you wish to answer questions?” The defendant then answered “no” to the officer’s question, “You now wish to answer questions now without a lawyer present?” Id. at 414. In response to the officer’s question as to whether the defendant had an attorney, the defendant said that he did and that the attorney had advised him that he should not say anything. However, the defendant asked the officer if he could stop answering questions at any time. The officer said, “Right.” The defendant then said that he would answer questions but would stop if he wanted to. The officer replied, “Okay, but you don’t have to without your attorney being present.” Id. at 415. The defendant then said that he would talk with the officer. The court ruled that the defendant properly waived his right to counsel.
State v. Underwood, 84 N.C. App. 408 (1987). The defendant was arrested, invoked his right to counsel, and was committed to jail. The court ruled that an officer did not improperly initiate interrogation by reading and delivering arrest warrants to the defendant while he was in jail. Shortly after the officer left, the defendant notified the jailer that he wanted to speak with the officer. The officer then returned and gave Miranda warnings, received a waiver, and obtained a statement.
Evidentiary Use of a Defendant’s Silence or Assertion of Right to Counsel or Right to Remain Silent
United States Supreme Court
Salinas v. Texas, 570 U.S. 178 (2013). The Court ruled that the use at trial of the defendant’s silence during a noncustodial interview did not violate the Fifth Amendment. Without being placed in custody or receiving Miranda warnings, the defendant voluntarily answered an officer’s questions about a murder. But when asked whether his shotgun would match shells recovered at the murder scene, the defendant declined to answer. Instead, he looked at the floor, shuffled his feet, bit his bottom lip, clenched his hands in his lap, and began “to tighten up.” After a few moments, the officer asked additional questions, which the defendant answered. The defendant was charged with murder, and at trial prosecutors argued that his reaction to the officer’s question suggested that he was guilty. A three-Justice plurality found it unnecessary to reach the primary issue, concluding instead that the defendant’s argument that the prosecutor’s jury argument based on the defendant’s silence violated his Fifth Amendment privilege against self-incrimination failed because he did not expressly invoke the privilege in response to the officer’s question and that no exception applied to excuse his failure to invoke the privilege. A separate two-Justice plurality concurred in the judgment but for a different reason: the defendant’s argument would fail even if he had invoked the privilege because the prosecutor’s comments regarding his pre-custodial silence did not compel him to give self-incriminating testimony. [Author’s note: Because the three-Justice plurality represents the narrower ground to reverse the judgment, it is the controlling opinion. See Marks v. United States, 430 U.S. 188 (1977) (when a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as the position taken by the Justices who concurred in the judgment on the narrowest grounds).]
Greer v. Miller, 483 U.S. 756 (1987). When the prosecutor asked the defendant on cross-examination, “Why didn’t you tell this story to anybody when you got arrested?” (the defendant had been given Miranda warnings after his arrest), the defendant’s lawyer objected, and the trial judge sustained his objection and gave a curative instruction to the jury. The Court ruled that no due process violation occurred because the trial judge prevented the prosecutor from impermissibly using the defendant’s post-arrest silence as evidence.
Wainwright v. Greenfield, 474 U.S. 284 (1986). A prosecutor’s use of a defendant’s assertion of his Miranda right to remain silent and right to counsel as evidence of his sanity—by showing his ability to comprehend and to assert his rights—violated due process. The Court indicated, however, that a prosecutor may offer evidence of a defendant’s behavior after his or her arrest if it avoids mention of the defendant’s exercise of his or her constitutional rights.
Fletcher v. Weir, 455 U.S. 603 (1982). The defendant stabbed the homicide victim with a knife during a fight. At trial, he testified that he acted in self-defense. His trial statement was the first occasion on which he offered an exculpatory statement. The prosecutor cross-examined him by asking why, when he was arrested, he had not offered his exculpatory explanation or disclosed the location of the knife used in the stabbing. There was no evidence that the defendant was given Miranda warnings when he was arrested.
The Court ruled that the cross-examination did not violate due process because the defendant had not been given Miranda warnings, which implicitly assure him that his silence will not be used against him. A state may specify under its rules of evidence the extent to which post-arrest silence, in the absence of Miranda warnings, may be used to impeach a defendant’s testimony. [Author’s note: For a discussion of North Carolina cases on the use of a defendant’s silence as evidence, see 2 Kenneth S. Broun, Brandis and Broun on North Carolina Evidence § 211 (7th ed. 2011)—although some of these cases were decided before Fletcher and may be affected by the ruling of that case. See, e.g., State v. Lane, 301 N.C. 382 (1980) (although the court’s Fifth Amendment analysis is now inconsistent with Fletcher, its ruling that the defendant’s silence after his arrest about his alibi was not an inconsistent statement when compared with his trial testimony is still valid); State v. Westbrooks, 345 N.C. 43 (1996) (using analysis from Lane, one defendant’s pre-arrest silence about who killed her husband was admissible at trial as prior inconsistent statement, when compared to her trial testimony).]
Anderson v. Charles, 447 U.S. 404 (1980). After being given Miranda warnings, the defendant gave a statement to an officer. The Court ruled that it is not a due process violation if a prosecutor cross-examines a defendant at trial about inconsistencies between the defendant’s post-arrest statement and his or her trial testimony by asking, in essence, why, if the defendant’s trial testimony is true, did he or she not tell the same version to the officer after being arrested. See also State v. Westbrooks, 345 N.C. 43 (1996); State v. Mitchell, 317 N.C. 661 (1986); State v. Fair, 354 N.C. 131 (2001) (State properly cross-examined defendant about his voluntary statements to news media after arrest that were inconsistent with trial testimony).
Jenkins v. Anderson, 447 U.S. 231 (1980). The defendant was arrested for murder about two weeks after the homicide had occurred. When he testified at trial about acting in self-defense, the prosecutor attempted to impeach him by referring to his pre-arrest silence—that is, his failure to surrender himself or tell his self-defense story to the police. The Court ruled that the use in this case of pre-arrest silence to impeach did not violate the defendant’s Fifth Amendment or due process rights. A state may resolve under its rules of evidence the extent to which pre-arrest silence may be used to impeach a defendant’s testimony. But see Coppola v. Powell, 878 F.2d 1562 (1st Cir. 1989) (defendant’s pre-arrest statement that he would not confess was sufficient to invoke his Fifth Amendment privilege, and State’s using that statement in its case in chief was constitutional error).
Doyle v. Ohio, 426 U.S. 610 (1976). The use of a defendant’s post-arrest silence (that is, defendant’s having remained silent after being given Miranda warnings) to impeach the defendant’s exculpatory testimony at trial violated due process.
North Carolina Supreme Court
State v. Moore, 366 N.C. 100 (2012). On direct examination, an officer testified that after he read the defendant his Miranda rights, the defendant “refused to talk about the case.” Id. at 102. Because this testimony referred to the defendant’s exercise of his right to silence, its admission was error. The court rejected the State’s argument that no error occurred because the comments were neither made by the prosecutor nor the result of a question by the prosecutor designed to elicit a comment on the defendant’s exercise of his right to silence. The court stated: “An improper adverse inference of guilt from a defendant’s exercise of his right to remain silent cannot be made, regardless of who comments on it.” Id. at 105.
State v. Buckner, 342 N.C. 198 (1995). The court ruled that the prosecutor’s jury argument recounting the defendant’s failure to tell officers at his interrogation that another person had shot the murder victim did not violate the ruling in Doyle v. Ohio, 426 U.S. 610 (1976), because there was no evidence that the defendant had been given his Miranda warnings during the interrogation. The court relied on Jenkins v. Anderson, 447 U.S. 231 (1980).
State v. Quick, 337 N.C. 359 (1994). Five law enforcement officers were questioning the defendant about a murder. They informed him that he was not under arrest and was free to leave at any time. The officers gave him Miranda warnings and obtained a waiver. The defendant denied his involvement in the murder. During the interview, an officer received a telephone call from the State Bureau of Investigation lab stating that the defendant’s fingerprints had been found in an ashtray in the victim’s home. Another officer told the defendant that he was under arrest for first-degree murder. The officer then made accusatory remarks to the defendant, including asking him how it felt to have killed a 78-year-old helpless man. The trial judge permitted the officer to testify how the defendant reacted to these accusatory remarks: “He had no reaction. He acted like I was talking about the weather.” Id. at 366.
Relying on State v. Hoyle, 325 N.C. 232 (1989), and Doyle v. Ohio, 426 U.S. 610 (1976), the court ruled that this evidence impermissibly referred to the defendant’s exercise of his right to remain silent. The court also ruled that the State’s cross-examination of the defendant (which again elicited the defendant’s silence in response to the officer’s accusation) was improper.
State v. Carter, 335 N.C. 422 (1994). A detective was permitted to testify that in the police department’s interrogation room, he advised the defendant of his Miranda rights and the defendant indicated that he understood those rights. The court ruled that (1) the testimony did not violate Doyle v. Ohio, 426 U.S. 610 (1976), because no evidence was introduced showing that the defendant exercised his right to remain silent and (2) the testimony was relevant in this case because defense counsel consistently throughout the trial had attacked the professionalism of the investigating officers, and the testimony tended to refute the characterization of the officers’ conduct as unprofessional.
State v. Hoyle, 325 N.C. 232 (1989). Officers arrested the defendant and advised him of his Miranda rights. The defendant said that he would not sign a waiver of his rights without a lawyer being present but that he would answer questions. The defendant answered some questions, but when asked what happened when the male (the alleged homicide victim) followed him to his truck, he said that he would “rather not say” without having talked with his lawyer. The court ruled that in the trial of the defendant for murder, in which the defendant asserted the defense of self-defense, the prosecutor’s cross-examination of the defendant and jury argument about the defendant’s failure to tell officers of his defense of self-defense violated Doyle v. Ohio, 426 U.S. 610 (1976), discussed above in this section under “UNITED STATES SUPREME COURT,” and State v. Lane, 301 N.C. 382 (1980), discussed above in this section under “UNITED STATES SUPREME COURT,” “Fletcher v. Weir.” See also State v. Shores, 155 N.C. App. 342 (2002) (similar ruling).
State v. Ladd, 308 N.C. 272 (1983). The content of a defendant’s statement invoking his right to counsel as well as his right to remain silent after receiving Miranda warnings was inadmissible at trial.
North Carolina Court of Appeals
State v. Perry, 260 N.C. App. 659 (2018). The court ruled that the trial court did not err by allowing a prosecutor to cross-examine defendant Perry regarding his post-arrest, pre-Miranda silence. Defendants Perry and Powell appealed from judgments entered upon jury verdicts finding them guilty of offenses in connection with a shooting. The defendants were tried together. At trial, Perry testified regarding his alibi defense. On appeal, the defendants argued that the trial court committed reversible error by allowing the prosecutor to cross-examine Perry about his silence to the police after his arrest regarding his alibi. Although a defendant’s post-arrest, post–Miranda warnings silence may not be used by the State for any purpose, a defendant’s post-arrest, pre-Miranda silence may be used by the State to impeach a defendant by suggesting that the defendant’s prior silence is inconsistent with his or her present statements at trial. The court noted that the North Carolina Supreme Court has instructed that a defendant’s silence about an alibi at the time of arrest can constitute an inconsistent statement and that this silence can be used to impeach an alibi offered by the defendant at trial if it would have been natural for the defendant to mention the alibi at the time of his or her encounter with the police. Applying these rules to the case at hand, the court concluded:
Although it was error to admit evidence of Perry’s post–Miranda warnings silence about an alibi, the error did not constitute plain error for either defendant. Because Perry failed to object to the testimony at trial, the plain-error standard applied. Here, no plain error occurred because there was ample evidence establishing the defendants’ guilt.
State v. Taylor, 244 N.C. App. 293 (2015). The court ruled: “[t]estimony that the investigating detective was unable to reach defendant to question him during her investigation was admissible to describe the course of her investigation, and was not improper testimony of defendant’s pre-arrest silence.” Id. at 294. The testimony at issue involved the State’s questioning of the detective about her repeated unsuccessful efforts to contact the defendant and his lack of participation in the investigation. Noting that pre-arrest silence may not be used as substantive evidence of guilt, the court noted that none of the relevant cases involve a situation when “there has been no direct contact between the defendant and a law enforcement officer.” It continued: “Pre-arrest silence has no significance if there is no indication that a defendant was questioned by a law enforcement officer and refused to answer.” Id. at 297–98. Here, the detective never made contact with the defendant, never confronted him in person, and never requested that he submit to questioning. Additionally, the court noted that there was no indication that the defendant knew that the detective was trying to talk to him and that he refused to speak to her. Thus, the court concluded: “it cannot be inferred that defendant’s lack of response to indirect attempts to speak to him about an ongoing investigation was evidence of pre-arrest silence.” Id. at 298.
State v. Barbour, 229 N.C. App. 635 (2013). The court ruled that the State did not impermissibly present evidence of the defendant’s post-Miranda silence. After being advised of his Miranda rights, the defendant did not remain silent but, rather, made statements to the police. Thus, no error occurred when an officer indicated that, after his arrest, the defendant never asked to speak with the officer or anyone else in the officer’s agency.
State v. Harrison, 218 N.C. App. 546 (2012). The court of appeals ruled that the trial court committed error by allowing the State to use the defendant’s pre- and post-arrest silence as substantive evidence of guilt. When explaining the circumstances of the defendant’s initial interview, an officer testifying for the State said, “He provided me—he denied any involvement, wished to give me no statement, written or verbal.” Id. at 556. Also, when the State asked the officer whether the defendant had made any statements after arrest, the officer responded, “After he was mirandized [sic], he waived his rights and provided no further verbal or written statements.” Id. The court noted that neither a defendant’s pre-arrest silence nor post-arrest, pre–Miranda warnings silence may be used as substantive evidence of guilt, though either or both may be used to impeach the defendant by suggesting that his or her prior silence is inconsistent with statements made at trial. A defendant’s post-arrest, post–Miranda warnings silence, however, may not be used for any purpose. Here, the defendant testified after the officer, so the State could not use the officer’s statement for impeachment. Also, the officer’s testimony was admitted as substantive evidence during the State’s case in chief.
State v. Mendoza, 206 N.C. App. 391 (2010). The court ruled that the trial court erred by allowing the State to introduce evidence, during its case in chief, of the defendant’s pre-arrest, post-arrest, and pre–Miranda warnings silence. The only permissible purpose for such evidence is impeachment; because the defendant had not yet testified when the State presented the evidence, the testimony could not have been used for that purpose. Also, the State’s use of the defendant’s post-arrest, post–Miranda warnings silence was forbidden for any purpose.
State v. Smith, 206 N.C. App. 404 (2010). The court ruled that the trial court did not improperly allow use of the defendant’s post-arrest silence when it allowed the State to impeach him with his failure to provide information about an alleged meeting with a drug dealer. In this murder case, the defendant claimed that the child victim drowned in a bathtub while the defendant met with the dealer. The defendant’s pretrial statements to the police never mentioned the meeting. The court ruled that because the defendant waived his rights and made pretrial statements to the police, the case did not involve the use of post-arrest silence for impeachment. Rather, it involved only the evidentiary issue of impeachment with a prior inconsistent statement.
State v. Adu, 195 N.C. App. 269 (2009). The court ruled, relying on State v. Hoyle, 325 N.C. 232 (1989), State v. Ward, 354 N.C. 231 (2001), and State v. Shores, 155 N.C. App. 342 (2002), that the State on cross-examination of the defendant and during jury argument violated the defendant’s Fifth Amendment rights by using the defendant’s silence as substantive evidence of guilt. (See the court’s discussion of the facts in this case.)
State v. Boston, 191 N.C. App. 637 (2008). The State was allowed to introduce evidence that the defendant, who had not been arrested, refused a law enforcement officer’s request to come to the police department to answer questions about an arson. This evidence was admitted as substantive evidence of the defendant’s guilt. The defendant did not testify at trial. The appellate court ruled, distinguishing Jenkins v. Anderson, 447 U.S. 231 (1980), and relying on several federal appellate cases, that it was constitutional error to admit this pre-arrest silence as substantive evidence; it could only be introduced as impeachment evidence.
State v. Ezzell, 182 N.C. App. 417 (2007). The defendant was arrested for murder at the crime scene and spoke to an officer after waiving his Miranda rights. He made several statements concerning the events surrounding the murder. After arriving at the sheriff’s office and being given Miranda warnings, the defendant asserted his right to remain silent. The prosecutor cross-examined the defendant at trial about what he did and did not tell the officer at the crime scene. The court noted that it would have been natural and expected for the defendant to have mentioned certain details to the officer then. The court ruled that the prosecutor’s cross-examination did not impermissibly comment on the defendant’s assertion of his right to remain silent at the sheriff’s office.
State v. Shores, 155 N.C. App. 342 (2002). The defendant was arrested for murder and given Miranda warnings. He gave a brief statement asserting self-defense and exercised his right to remain silent from then until trial. The defendant testified on direct examination at trial and added details about the alleged victim’s actions toward him. The prosecutor’s cross-examination repeatedly questioned the defendant as to whether he had ever informed law enforcement about these details. The prosecutor also mentioned this matter in jury argument. The court ruled, relying on Doyle v. Ohio, 426 U.S. 610 (1976), State v. Hoyle, 325 N.C. 232 (1989), and State v. Lane, 301 N.C. 382 (1980), that the prosecutor’s cross-examination of the defendant and jury argument impermissibly commented on the defendant’s right to remain silent.
State v. Hanton, 140 N.C. App. 679 (2000). The defendant was arrested and given Miranda warnings, which he waived. He then gave an oral statement to an officer but refused to provide a written statement. The officer testified at trial that the defendant told him “that he was no dummy and that he was not going to put anything in writing [and] don’t try to trick me into your little games.” Id. at 686. The court ruled, relying on Connecticut v. Barrett, 479 U.S. 523 (1987), that the defendant’s refusal to put his oral statement into writing was not an assertion of the right to remain silent and that the officer’s testimony was thus not improper.
State v. Salmon, 140 N.C. App. 567 (2000). An officer arrested the defendant (who was 15 but was tried as an adult) for murder (by gunshot) and placed him in a patrol car. He was not given Miranda warnings. During the ride to the police station, the defendant voluntarily stated, “I didn’t mean to do it.” The defendant called the officer during the presentation of his defense to introduce this statement to support his primary defense, that he did not intend to kill the victim because he did not believe the gun was loaded. During the State’s cross-examination of the officer, he testified that after this voluntary statement, the defendant was informed that a youth detective would be speaking with him on his arrival at the station. The defendant then responded, “Not without my lawyer.” The trial judge permitted the State to use this statement to rebut the defendant’s mistake-of-fact defense. The State argued to the jury that if the killing was truly a mistake, the defendant would not have needed to speak with a lawyer.
The court ruled that the admission of the defendant’s statement about his lawyer did not unconstitutionally violate his exercise of the right to counsel. The court reasoned, relying on the analysis in Fletcher v. Weir, 455 U.S. 603 (1982), that the prohibition against using evidence of a defendant’s invocation of the right to counsel after Miranda warnings have been given (see State v. Ladd, 308 N.C. 272 (1983)) does not apply to such an invocation before a defendant has been given those warnings.
State v. Alkano, 119 N.C. App. 256 (1995). The defendant, who had not been given Miranda warnings, volunteered several inculpatory statements after his arrest. At trial, the prosecutor asked officers about the defendant’s failure to explain several matters surrounding the crime. The court ruled that the State did not impermissibly comment on the defendant’s silence in violation of Doyle v. Ohio, 426 U.S. 610 (1976), because the defendant in this case was not silent about the facts of the crime when he was arrested.
Use of Evidence Obtained as the Result of a Miranda Violation
United States Supreme Court
Bobby v. Dixon, 565 U.S. 23 (2011). The Court ruled that a federal appellate court erroneously concluded that a state supreme court ruling affirming the defendant’s murder conviction was contrary to or involved an unreasonable application of clearly established federal law. The defendant and an accomplice murdered the victim, obtained an identification card in the victim’s name, and sold the victim’s car. An officer first spoke with the defendant during a chance encounter when the defendant was voluntarily at the police station for completely unrelated reasons. The officer gave the defendant Miranda warnings and asked to talk to him about the victim’s disappearance. The defendant declined to answer questions without his lawyer and left. Five days later, after receiving information that the defendant had sold the victim’s car and forged his name, officers arrested the defendant for forgery and interrogated him. They decided not to give the defendant Miranda warnings for fear that he would again refuse to speak with them. The defendant admitted to obtaining an identification card in the victim’s name but claimed ignorance about the victim’s disappearance. An officer told the defendant that “now is the time to say” whether he had any involvement in the murder because “if [the accomplice] starts cutting a deal over there, this is kinda like, a bus leaving. The first one that gets on it is the only one that’s gonna get on.” Id. at 26. When the defendant continued to deny knowledge of the victim’s disappearance, the interrogation ended. That afternoon, the accomplice led the police to the victim’s body, saying that the defendant told him where it was. The defendant was brought back for questioning. Before questioning began, the defendant said that he heard they had found a body and asked whether the accomplice was in custody. When the police said that the accomplice was not in custody, the defendant replied, “I talked to my attorney, and I want to tell you what happened.” Id. Officers read him Miranda rights and obtained a signed waiver of those rights. At this point, the defendant admitted to murdering the victim. The defendant’s confession to murder was admitted at trial, and the defendant was convicted of murder, among other things, and sentenced to death. After the state supreme court affirmed, the defendant filed for federal habeas relief. The district court denied relief, but a federal appellate court reversed.
The United States Supreme Court found that the federal appellate court erred in three respects. First, it erred by concluding that federal law clearly established that police could not speak to the defendant when five days earlier he had refused to speak to them without his lawyer. The defendant was not in custody during the chance encounter, and no law says that a person can invoke his or her Miranda rights anticipatorily in a context other than custodial interrogation. Second, the federal appellate court erroneously ruled that police violated the Fifth Amendment by urging the defendant to “cut a deal” before his accomplice did so. No precedent holds that this common police tactic is unconstitutional. Third, the federal appellate court erroneously concluded that the state supreme court unreasonably applied Oregon v. Elstad, 470 U.S. 298 (1985), when it ruled that the defendant’s second confession was voluntary. As the state supreme court explained, the defendant’s statements were voluntary. During the first interrogation, he received several breaks, was given water and offered food, and was not abused or threatened. He freely acknowledged that he forged the victim’s name and had no difficulty denying involvement with the victim’s disappearance. Prior to his second interrogation, the defendant made an unsolicited declaration that he had spoken with his attorney and wanted to tell the police what happened. Then, before giving his confession, the defendant received Miranda warnings and signed a waiver-of-rights form. The state court recognized that the defendant’s first interrogation involved an intentional Miranda violation but concluded that the breach of Miranda procedures did not involve actual compulsion, and thus there was no reason to suppress the later, warned confession. The federal appellate court erred by concluding that Missouri v. Seibert, 542 U.S. 600 (2004), mandated a different result. The nature of the interrogation here was different from that in Seibert. Here, the Court explained, the defendant denied involvement in the murder and then after Miranda warnings were given changed his mind and confessed (in Seibert the defendant confessed both times). Additionally, the Court noted, in contrast to Seibert, the two interrogations at issue here did not occur in one continuum.
United States v. Patane, 542 U.S. 630 (2004). An officer arrested the defendant at his residence for violating a restraining order involving his ex-girlfriend. When another officer began to give Miranda warnings, the defendant interrupted the officer, asserting that he knew his rights, and neither officer attempted to complete the Miranda warnings. Because one of the officers had been previously informed that the defendant, a convicted felon, illegally possessed a Glock pistol, he asked the defendant about it. The defendant, after persistent questioning, told the officer that the pistol was in his bedroom. The officer received consent from the defendant to retrieve the pistol. The pistol was admitted at the defendant’s trial, and he was convicted of possession of a firearm by a convicted felon. An opinion representing the views of three Justices and announcing the judgment of the Court ruled, distinguishing Dickerson v. United States, 530 U.S. 428 (2000) (Miranda announced a constitutional rule that Congress may not supersede legislatively), that the Fifth Amendment’s self-incrimination privilege is not implicated by the admission into evidence of the physical fruit of a voluntary statement taken in violation of the Miranda ruling. An opinion representing the views of two other Justices and concurring in the judgment stated that it agreed with the opinion announcing the judgment of the Court that the nontestimonial physical fruit of the defendant’s unwarned statement, the Glock pistol, was admissible—although it did not necessarily agree with all of the statements in the opinion. [Author’s note: The ruling in State v. May, 334 N.C. 609 (1993) (physical evidence discovered as a result of a voluntary statement taken in violation of Miranda is admissible), is consistent with this ruling.]
Missouri v. Seibert, 542 U.S. 600 (2004). An officer arrested the defendant for her involvement with an unlawful burning of a mobile home and the resulting death of a person inside. As part of an interrogation technique, the officer deliberately failed to give the defendant Miranda warnings, interrogated her for thirty to forty minutes, and obtained a confession. The defendant was then given a twenty-minute break. The same officer then gave Miranda warnings to the defendant, obtained a waiver, interrogated her again (referring in this second interrogation to statements she had made in the first interrogation), and obtained another confession. The trial judge suppressed the first confession but admitted the second confession. The issue before the United States Supreme Court was the admissibility of the second confession.
Distinguishing Oregon v. Elstad, 470 U.S. 298 (1985) (second voluntary incriminating statement obtained with Miranda warnings and waiver at police station was admissible even though it occurred after the defendant had made voluntary incriminating statement at his house that was inadmissible under Miranda because warnings had not been given), an opinion announcing the judgment of the Court and representing the views of four Justices (a plurality opinion) ruled that the second confession was inadmissible. The opinion stated that it would have been reasonable for the defendant to regard the two interrogation sessions as a continuum in which it would have been unnatural to refuse to repeat at the second interrogation what had been said before. These circumstances challenged the comprehensibility and efficacy of the Miranda warnings given before the second interrogation: a reasonable person in the defendant’s shoes would not have understood the warnings to convey a message that he or she retained a choice about continuing to talk.
A fifth Justice (Justice Kennedy) concurred in the judgment that the second confession was inadmissible, although he disagreed with the reasoning of the plurality opinion. He stated that the admissibility of post–Miranda warnings statements should continue to be governed by Elstad, cited supra and discussed immediately below, except when the second statement is obtained in the two-step interrogation technique deliberately used in this case to undermine the Miranda warnings. In such a case, post–Miranda warnings statements that are related to the substance of the pre–Miranda warnings statements must be excluded unless curative measures are taken before the post–Miranda warnings statement is made. The curative measures discussed in Justice Kennedy’s opinion were not taken in this case, so he concluded that the second confession was inadmissible. [Author’s note: When a fifth vote is necessary to support a judgment of the Court, the concurring opinion defines the scope of the ruling if it rests on the narrowest ground that supports the judgment, which it does in this case. See, e.g., Chandler v. Florida, 449 U.S. 560 (1981); Grutter v. Bollinger, 539 U.S. 306 (2003); Marks v. United States, 430 U.S. 188 (1977); United States v. Capers, 627 F.3d 470, 476 (2d Cir. 2010) (Justice Kennedy’s concurring opinion in Seibert is controlling).] For a post-Seibert North Carolina case, see State v. Hartley, 212 N.C. App. 1 (2011) (court distinguished Seibert by noting that both confessions in Seibert were obtained while the defendant was in custody, while the defendant in Hartley was not in custody when the first confession was obtained).
Oregon v. Elstad, 470 U.S. 298 (1985). The fact that an officer has obtained a voluntary statement from a defendant that is not admissible because it was obtained as a result of a Miranda violation does not prohibit the admission at trial of a defendant’s later voluntary statements made after proper Miranda warnings and a proper waiver. A simple failure to give Miranda warnings is not a violation of a defendant’s Fifth Amendment rights. Instead, the defendant’s unwarned statement merely must be excluded in the State’s case in chief. Therefore, a voluntary statement, tainted by the failure to give Miranda warnings, does not bar the admissibility of a later voluntary statement that was taken in compliance with the Miranda rule.
For similar rulings in North Carolina, see State v. Edgerton, 328 N.C. 319 (1991); State v. Barlow, 330 N.C. 133 (1991); State v. Greene, 332 N.C. 565 (1992); State v. Morrell, 108 N.C. App. 465 (1993); State v. Bunnell, 340 N.C. 74 (1995); State v. Soles, 119 N.C. App. 375 (1995). Compare United States v. Carter, 884 F.2d 368 (8th Cir. 1989) (court ruled inadmissible a written confession taken with proper Miranda warnings immediately after oral confession that had been taken unconstitutionally without Miranda warnings), with United States v. Gale, 952 F.2d 1412 (D.C. Cir. 1992) (distinguishing Carter, court ruled admissible a statement that was given one hour after inadmissible statements were obtained).
[Author’s note: The United States Supreme Court strongly indicated in Dickerson v. United States, 530 U.S. 428 (2000) (Miranda ruling is constitutionally based and may not be modified by legislative act), that its ruling in Dickerson did not adversely affect its Elstad ruling; see discussion of this issue in United States v. Sterling, 283 F.3d 216 (4th Cir. 2002), and United States v. DeSumma, 272 F.3d 176 (3d Cir. 2001).]
Michigan v. Tucker, 417 U.S. 433 (1974). The defendant made a voluntary statement that was inadmissible at trial because it was obtained as a result of a Miranda violation. Officers learned the name of a witness from the statement, and that witness later testified against the defendant at trial. The Court ruled that the Miranda violation did not require exclusion of the witness’s testimony because the defendant’s voluntary statement was not taken in violation of his Fifth, Sixth, or Fourteenth Amendment rights.
Harris v. New York, 401 U.S. 222 (1971). A statement taken in violation of Miranda that is not involuntary may be used to impeach a defendant’s credibility if the defendant testifies at trial. See also Oregon v. Hass, 420 U.S. 714 (1975); State v. Bryant, 280 N.C. 551 (1972).
Miranda v. Arizona, 384 U.S. 436 (1966). Any statement, whether inculpatory or exculpatory, obtained from a defendant as a result of a Miranda violation is inadmissible at trial. But see Harris v. New York, 401 U.S. 222 (1971), discussed immediately above, and Oregon v. Elstad, 401 U.S. 222 (1971), discussed above in this section.
North Carolina Supreme Court
State v. Stokes, 357 N.C. 220 (2003). The court ruled, relying on State v. McQueen, 324 N.C. 118 (1989), and assuming without deciding that the defendant’s statements were taken in violation of Miranda, that the State was properly permitted to use those statements in cross-examination to impeach the defendant when he testified at his trial on murder and child abuse charges. The court also ruled that the State was properly permitted to call the law enforcement officer who took the statements as a rebuttal witness after the defendant had testified because the testimony was material to the central issue at the murder trial—how the child victim died.
State v. Wallace, 351 N.C. 481 (2000). The court ruled that a three-hour delay in giving the defendant his Miranda warnings did not taint his later confessions given after Miranda warnings. The defendant did not make any incriminating statements during those three hours that would affect his later confessions.
State v. May, 334 N.C. 609 (1993). The court ruled that physical evidence found as a result of a Miranda violation (in this case, the defendant’s statement led officers to a knife, a pair of gloves, and a rag in the defendant’s backyard) is admissible at trial when the defendant was not coerced into giving the statement (that is, the statement was voluntarily given) that led to the discovery of the evidence. The court relied on Michigan v. Tucker, 417 U.S. 433 (1974), and Oregon v. Elstad, 470 U.S. 298 (1985), in ruling that although the officers here violated the prophylactic rules of Miranda and Edwards v. Arizona, 384 U.S. 436 (1981), they did not violate the defendant’s right against compelled self-incrimination. The rule’s deterrent value is satisfied by excluding the defendant’s statement but not the physical evidence.
State v. Hicks, 333 N.C. 467 (1993). The court ruled that the defendant’s first confession—taken without Miranda warnings—should have been ruled inadmissible at trial. The court also ruled that the defendant’s second confession—taken after Miranda warnings had been properly given and waived—was admissible under the ruling in Oregon v. Elstad, 470 U.S. 298 (1985). The court adopted the Elstad ruling to determine alleged constitutional violations under Article I, Sections 19 and 23 of the North Carolina Constitution.
State v. McQueen, 324 N.C. 118 (1989). The defendant testified on direct examination at trial that he had two knives but no “weapons” and did not know where the two guns used in the murder for which he was being tried were located. The State called as a rebuttal witness a law enforcement officer who testified that during interrogation, in response to the officer’s question as to where the guns were located, the defendant said, “After I talk to my lawyer and if he tells me to, I’ll tell you where they are at.” Id. at 134. The State also had cross-examined the defendant about this statement. Although an assertion of the right to counsel is generally inadmissible at trial, the court ruled that the cross-examination and rebuttal evidence was proper for impeachment under Harris v. New York, 401 U.S. 222 (1971), discussed above in this section under “UNITED STATES SUPREME COURT,” to question the defendant about a prior inconsistent statement.
North Carolina Court of Appeals
In re L.I., 205 N.C. App. 155 (2010). The juvenile was a passenger in a vehicle stopped by an officer. When the officer ordered the juvenile out of the vehicle, he asked, “[Where is] the marijuana I know you have[?]” Id. at 157. The juvenile turned away and appeared to reach into her pants. When the officer tried to see what the juvenile was reaching for, she told him that he could not look in her pants. After handcuffing and placing the juvenile in the back of the patrol car, the officer—without giving Miranda and juvenile statutory warnings—told her that he was going to “take her downtown” and that “if [she] t[ook] drugs into the jail it[] [would be] an additional charge.” Id. The juvenile shortly thereafter told the officer that she had marijuana and that it was in her coat pocket.
(1) The court ruled, relying on State v. Johnston, 154 N.C. App. 500 (2002), that the juvenile was in custody when the officer spoke to her. She had been detained, handcuffed, and placed in the back seat of the officer’s vehicle. (2) The court ruled, relying on State v. Phelps, 156 N.C. App. 119 (2003), that the officer’s statements to the juvenile constituted interrogation under Rhode Island v. Innis, 446 U.S. 291 (1980), because the officer knew or should have known that they were reasonably likely to elicit an incriminating response from her. The officer’s objective purpose was to obtain the juvenile’s admission that she possessed the marijuana that he knew she had. The trial court erred in admitting the juvenile’s statements made in response to the officer’s custodial interrogation. (3) The court ruled, relying on State v. May, 334 N.C. 609 (1993), and other cases, that the physical evidence (marijuana) discovered as a result of statements that were inadmissible at trial under Miranda was admissible when the juvenile’s statements were not coerced.
State v. Houston, 169 N.C. App. 367 (2005). Officers arrested the defendant in the parking lot of his apartment building, did not give him Miranda warnings, and took him to an apartment in which he had a bedroom and bathroom and where he consented to a search, including a search of a safe to which the defendant gave the officers the combination. Cocaine, cash, and a handgun were found in the safe. The officers transported the defendant to the police station, where they advised him of his Miranda rights and took a statement. None of the defendant’s pre–Miranda warnings statements were admitted at his trial. However, the evidence in the safe was admitted at trial, as were the defendant’s statements at the police station. The court ruled, relying on United States v. Patane, 542 U.S. 630 (2004), State v. May, 334 N.C. 609 (1993), and State v. Goodman, 165 N.C. App. 865 (2004), that the fruit of the poisonous tree doctrine did not apply to bar admission of physical evidence discovered after the Miranda violation (questioning the defendant after his arrest and obtaining the combination to the safe without giving Miranda warnings). Thus, evidence seized from the safe was admissible at the defendant’s trial based on the defendant’s valid consent to search it. [Author’s note: An officer’s request for a consent search is not interrogation. State v. Cummings, 188 N.C. App. 598 (2008).]
State v. Goodman, 165 N.C. App. 865 (2004). The defendant, after waiving his Miranda rights, talked to officers about stealing a murder victim’s truck and using the man’s credit cards but later asserted his right to counsel while being taken to jail. Five days later, officers went to the jail and told the defendant that they were not going to question him about the murder but that they had information that he had killed someone and might know where the body was. The defendant made some incriminating statements and took the officers to the body. The trial judge ordered the statements suppressed based on the officers’ Miranda violation. However, the trial judge did not suppress the physical evidence (the body and items found near the body) that had been obtained as a result of the Miranda violation. The court ruled, relying on State v. May, 334 N.C. 609 (1993), and United States v. Patane, 542 U.S. 630 (2004), that the physical evidence found as a result of the non-coerced statement obtained from the defendant after the Miranda violation was admissible at trial, and it upheld the trial judge’s ruling on that ground.
North Carolina Statutory Warnings for Young Arrestees
(This topic is discussed in the chapter text under “A Young Arrestee’s Additional Statutory Warnings and Rights.”)
North Carolina Supreme Court
State v. Saldierna, 369 N.C. 401 (2016). Officers arrested a 16-year-old juvenile in connection with several break-ins and sought to question him. The juvenile was advised of, and signed a waiver of, his Miranda rights and his statutory right to have a parent or guardian present during questioning. Shortly thereafter, he asked, “Um, can I call my mom?” An officer allowed him to use a phone, but he was unable to reach his mother. The interview resumed, and the juvenile admitted involvement in the break-ins. He later moved to suppress statements he made during the interview, contending that his request to call his mother amounted to an assertion of his right to have a parent present. The motion was denied by the trial judge. The court of appeals reversed, concluding that the question here was ambiguous but that, unlike in the Miranda context, officers should clarify ambiguous comments regarding juvenile rights. The state supreme court reversed the court of appeals, ruling that the juvenile’s remark was “at best an ambiguous invocation of his right to have his mother present” and applying Miranda precedent in holding that “without an unambiguous, unequivocal invocation of defendant’s right [to have a parent or guardian present,] law enforcement officers had no duty to ask clarifying questions or to cease questioning.” Id. at 409. The court remanded the matter to the court of appeals to review whether the juvenile’s waiver of his rights was knowing and voluntary. For a more complete discussion of Saldierna, see Bob Farb, North Carolina Supreme Court Rules That Juvenile’s Request to Call Mother During Custodial Interrogation Was Not Clear Invocation of Statutory Right to Consult a Parent or Guardian to Bar Further Interrogation, UNC Sch. of Gov’t: N.C. Crim. L. Blog (Feb. 28, 2017), https://nccriminallaw.sog.unc.edu/north-carolina-supreme-court-rules-juveniles-request-call-mother-custodial-interrogation-not-clear-invocation-statutory-right-consult-parent-guardian-bar-furt/.
In later litigation, State v. Saldierna, 371 N.C. 407 (2018), involving the defendant’s case discussed above, the court, reversing the court of appeals, 254 N.C. App. 446 (2017), ruled that the evidence supported the trial judge’s finding that the juvenile knowingly and voluntarily waived his juvenile rights.
State v. Oglesby, 361 N.C. 550 (2007). Officers did not stop questioning the 16-year-old defendant during custodial interrogation when he requested permission to telephone his aunt. Although the aunt testified that she was a “mother figure” to the defendant, the court ruled that this evidence did not constitute the legal authority inherent in a guardian or custodial relationship. Thus, the aunt was not a “guardian” under G.S. 7B-2101(a)(3) so as to require the officers to stop their questioning of the defendant.
State v. Miller, 344 N.C. 658 (1996). Officers arrested a 17-year-old for murder. They could not find a juvenile rights form, so they used an adult Miranda form and inserted an additional question: “Do you wish to answer questions without your parents/parent present?” Id. at 664. The defendant waived all of his rights except that he stated that he wanted his mother present. No questioning was conducted until his mother was present. During the questioning, the defendant appeared embarrassed and ill at ease. An officer asked the defendant if he was comfortable talking in front of his mom or if he wanted her to step out of the room. He replied, “She might as well leave.” Id. at 665. His mother left the interrogation room and sat on a bench outside the open doorway where the defendant could see her if he leaned forward. She was told that she could come back into the room at any time. The defendant then confessed to the murder.
The court ruled that the additional language added to the adult Miranda form adequately conveyed the substance of the defendant’s right to have his parent(s) present during questioning. It was clear that the defendant understood his rights because he asked that his mother be present, he did not give any statement until she arrived, and he answered questions in her presence. The court also ruled that the defendant’s statements and conduct that resulted in his mother leaving the interrogation room were a knowing and intelligent waiver of his right to have her present during the custodial interrogation.
State v. Smith, 317 N.C. 100 (1986). The court applied the ruling of Edwards v. Arizona, 451 U.S. 477 (1981), to a juvenile’s assertion of the statutory right to have a parent present during custodial interrogation and ruled that the resumption of questioning in the absence of counsel or a parent was improper in this case; therefore, the resulting confession was inadmissible at trial.
State v. Fincher, 309 N.C. 1 (1983). The court ruled that custodial interrogation warnings listed in G.S. 7A-595 (now, G.S. 7B-2101) must be given to a person under 18 who is unemancipated, unmarried, and not in the armed forces.
North Carolina Court of Appeals
State v. Benitez, 258 N.C. App. 491 (2018). The 13-year-old defendant was questioned by a detective in the presence of his uncle, with whom he lived, and admitted shooting a victim in the head. Two weeks later, the court appointed the county department of social services as a guardian for the defendant because he had appeared in court with no family, his mother was believed to be in El Salvador, and his father’s whereabouts were unknown. The defendant eventually pled guilty to first-degree murder and later filed a motion for appropriate relief, alleging that his trial counsel had provided ineffective assistance by failing to move to suppress the statement he made to the detective as obtained in violation of the defendant’s statutory right to have a parent or guardian present during questioning. The attorney indicated that he had researched the issue but concluded that the uncle qualified as a guardian under existing case law given that the juvenile had lived with him for more than a year, that he met the juvenile’s needs, and that he signed paperwork, including for school, as the defendant’s guardian. Although State v. Oglesby, 361 N.C. 550 (2007) (finding that a juvenile’s aunt was not a guardian and stating that only a “legal process” could render a person a guardian), was perhaps to the contrary, the precise scope and meaning of Oglesby was not clear at the time of this case, and counsel’s decision not to pursue the issue based on the research he had done was not unreasonable. As a second issue, the defendant argued that his waiver of his right to remain silent was not knowing, voluntary, and intelligent. The court of appeals remanded that issue for further findings by the trial court, noting a lack of findings regarding the defendant’s “experience, education, background, and intelligence.” Benitez, 258 N.C. App. at 514. The court appeared to be especially concerned with suggestions in the record that the defendant suffered from some mental disease or defect, perhaps an intellectual disability.
State v. Williams, 209 N.C. App. 255 (2011). The appellate court ruled that the trial court did not err by denying the defendant’s motion to suppress statements made during officers’ interrogation because no violation of G.S. 7B-2101 occurred. The defendant, a 17-year-old juvenile, was already in custody on unrelated charges when he was brought to an interview room for questioning. When the defendant invoked his statutory right to have his mother present during questioning, the detectives stopped all questioning. After the detectives had trouble determining how to contact the defendant’s mother, they returned to the room and asked the defendant how to reach her. The defendant then asked them when he would be able to talk to them about the new charges (robbery and murder) and explained that the detectives had “misunderstood” him when he requested the presence of his mother for questioning. He explained that he only wanted his mother present for questioning related to the charges for which he was already in custody, not the new crimes of robbery and murder. Although the defendant initially invoked his right to have his mother present during his custodial interrogation, he thereafter initiated further communication with the detectives; that communication was not the result of any further interrogation by the detectives. The defendant voluntarily and knowingly waived his rights.
In re M.L.T.H., 200 N.C. App. 476 (2009). The court ruled that an officer improperly advised a juvenile of custodial interrogation rights when the form the officer used advised the juvenile that he had the right to have a parent, guardian, custodian, or any other person present during questioning. G.S. 7B-2101 does not allow the advisement to include “any other person.” The officer’s advisement gave the juvenile an improper choice.
State v. Oglesby, 174 N.C. App. 658 (2005). The court ruled that the request of the defendant (who was 16 years old) for his aunt to be present during custodial interrogation did not require officers to stop interrogation, because his aunt was not a guardian under the juvenile interrogation statute, G.S. 7B-2101. Distinguishing State v. Jones, 147 N.C. App. 527 (2001), the court noted that no governmental entity had conferred legal authority over the defendant to the aunt.
State v. Branham, 153 N.C. App. 91 (2002). The court ruled, relying on State v. Smith, 317 N.C. 100 (2001), that officers violated the juvenile’s statutory interrogation rights by continuing to question him after he had requested that his mother be present during custodial interrogation. There was evidence that the mother, when informed of her son’s request that she be present during custodial interrogation, refused to be with him. The court stated that even if the mother did not want to be present, she could not waive her son’s right to have her present during the custodial interrogation. The court ordered that the juvenile’s statement must be suppressed.
State v. Jones, 147 N.C. App. 527 (2001). The defendant, a 13-year-old juvenile who was subjected to custodial interrogation in his aunt’s presence, was tried as an adult and convicted of several felonies. The court ruled that the custodial interrogation complied with G.S. 7A-595(b) (now, G.S. 7B-2101(b)) because the defendant’s aunt was a guardian under statutory juvenile rights provisions. The court noted that the term “guardian” is not defined in the juvenile code, and it rejected the defendant’s argument that a guardian means only someone who is court appointed. The court ruled that a guardian under G.S. 7A-595(b) means a person upon whom government has conferred any authority over the juvenile. Because both the department of social services and the local school system had given authority over the defendant to the aunt, the court ruled that she was a guardian under G.S. 7A-595(b). [Author’s note: This ruling would clearly also apply to G.S. 7B-2101(b).]
State v. McKeithan, 140 N.C. App. 422 (2000). An officer gave a juvenile an interrogation-rights warning that included the statement: “If you cannot afford a lawyer, one will be appointed for you before questioning if you wish.” Id. at 428. The defendant argued that the warning was deficient because it was contrary to statutory law that a juvenile is always entitled to an attorney regardless of financial resources. The court rejected this argument, citing rulings in State v. Flowers, 128 N.C. App. 697 (1998), and State v. Miller, 344 N.C. 658 (1996). However, the court stated that it urged law enforcement officers to comply literally with the provisions of G.S. 7B-2101, which in pertinent part provides that an officer must advise a juvenile that “the juvenile has a right to consult with an attorney and that one will be appointed for the juvenile if the juvenile is not represented and wants representation.”
State v. Flowers, 128 N.C. App. 697 (1998). When the mother of the defendant, who was 13 years old, learned that the police were looking for him, she brought him to the police department. Before asking any questions, an officer read the defendant his juvenile rights in the mother’s presence. After each right was read, the officer asked the defendant and his mother if they understood, and they answered “yes” each time. The defendant did not make any affirmative statement as to whether he would agree to talk with officers or whether he wanted a lawyer to be present. The officer interrogated the defendant in his mother’s presence for about two hours.
The defendant argued that he never expressly waived his right to remain silent and his right to counsel. The court, citing North Carolina v. Butler, 441 U.S. 369 (1979), noted that an express waiver of Miranda rights is not required and ruled that a juvenile need not make an express waiver of juvenile rights. The defendant argued that he lacked the capacity to understand his rights because of his youth and low mental ability (a psychologist testified that the defendant was mildly retarded with a full-scale IQ of 56 and a verbal IQ of 48). The court discussed the evidence presented at the suppression hearing and upheld the trial judge’s findings that the defendant knowingly, intelligently, and voluntarily waived his rights. The court stated, citing State v. Fincher, 309 N.C. 1 (1995), that a defendant’s youth or subnormal mental capacity does not necessarily make him or her incapable of waiving his or her rights knowingly and voluntarily.
State v. Taylor, 128 N.C. App. 394 (1998). The court rejected the defendant’s argument that an officer is required to advise a juvenile, before conducting custodial interrogation, that the juvenile could be tried as an adult for the offense being investigated. The court declined to follow rulings from other state courts that require an officer to advise the juvenile in that manner.
Fifth Amendment Issues and Court-Ordered Mental Examinations
UNITED STATES SUPREME COURT
Kansas v. Cheever, 571 U.S. 87 (2013). The Court ruled that the Fifth Amendment does not prohibit the government from introducing evidence from a court-ordered mental evaluation of a criminal defendant to rebut that defendant’s presentation of expert testimony in support of a defense of voluntary intoxication. It explained:
The Court noted that “admission of this rebuttal testimony harmonizes with the principle that when a defendant chooses to testify in a criminal case, the Fifth Amendment does not allow him to refuse to answer related questions on cross-examination.” Id.
NORTH CAROLINA SUPREME COURT
State v. Huff, 325 N.C. 1 (1989). After the defendant, charged with capital murder and first-degree murder, filed notice of his intent to rely on the insanity defense and to introduce expert testimony supporting it, the court—on the State’s motion—ordered the defendant to undergo examination at a state hospital about his mental state at the time of the offenses. Seven months later, when defense counsel questioned the defendant’s capacity to stand trial, the court ordered the defendant to undergo examination on that issue. At trial, after the defendant offered expert testimony on the insanity issue (including that of a doctor who had examined the defendant at the first court-ordered examination), the State offered, over the defendant’s objection, expert testimony on the insanity issue from the second court-ordered examination.
The court ruled that when a defendant relies on the insanity defense and introduces expert testimony about the defendant’s mental status, the State may introduce expert testimony based on prior court-ordered psychiatric examinations to rebut that testimony without violating the Fifth Amendment or Article I, Section 23 of the North Carolina Constitution because these constitutional provisions are inapplicable to these court-ordered psychiatric examinations. The court distinguished this case from Estelle v. Smith, 451 U.S. 454 (1981), and modified the rationale of State v. Jackson, 77 N.C. App. 491 (1985).
The court also ruled that the defendant’s Sixth Amendment right to counsel (as well as his state constitutional right to counsel) was not violated by the court-ordered psychiatric examinations. Distinguishing Smith and relying on Buchanan v. Kentucky, 483 U.S. 402 (1987), the court ruled that the defendant’s right to effective assistance of counsel was not violated by defense counsel’s failure to anticipate that the examination results might be used to rebut the defendant’s insanity defense. It was sufficient under the Sixth Amendment that the defendant had an opportunity to discuss with his lawyer whether or not to submit to the second court-ordered examination and to discuss its scope as well. It was irrelevant that the second court order, which was to determine the defendant’s competency to stand trial, did not specify that the examination was also to determine his mental state at the time of the offenses. [Author’s note: The court also ruled that, based on the facts of this case, the State was entitled to a second court-ordered mental examination of the defendant.]
The Defendant’s Sixth Amendment Right to Counsel
(This topic is discussed in the chapter text under “A Defendant’s Sixth Amendment Right to Counsel.”)
Generally
United States Supreme Court
Montejo v. Louisiana, 556 U.S. 778 (2009). The defendant was arrested for murder, waived his Miranda rights, and gave statements in response to officers’ interrogation. He was brought before a judge for a preliminary hearing; the judge ordered that the defendant be held without bond and appointed the Office of Indigent Defender to represent him. Later that day, two officers visited the defendant in prison and requested that he accompany them to locate the murder weapon. He was read his Miranda rights again and agreed to go with the officers. During the trip, he wrote an inculpatory letter of apology to the murder victim’s widow. Only on his return did the defendant finally meet his court-appointed attorney. The issue in this case was whether the letter of apology was erroneously admitted in the defendant’s trial, based on a violation of his Sixth Amendment right to counsel. In Michigan v. Jackson, 475 U.S. 625 (1986), the Court ruled that when a defendant requests counsel at an arraignment or similar proceeding that takes place at or after the attachment (beginning) of the Sixth Amendment right to counsel, an officer is thereafter prohibited under the Sixth Amendment from initiating interrogation of the defendant. (To put it another way, any waiver of counsel for the interrogation is automatically invalid.) Instead of deciding whether Jackson barred the officers from initiating interrogation of Montejo after a lawyer had been appointed for him, the Court overruled Jackson and remanded the case to a Louisiana court to determine unresolved factual and legal issues.
[Author’s note: The effect of Montejo’s overruling of Jackson is to allow an officer to initiate interrogation provided the defendant is advised of his or her rights and knowingly and voluntarily waives the Sixth Amendment right to counsel. A defendant may execute a waiver of counsel without the presence of his or her attorney. Generally, a Miranda Fifth Amendment waiver of counsel would suffice as well for a Sixth Amendment waiver, although a cautious officer may want to add the name of the defendant’s counsel to the waiver. There are several other issues to consider before the initiation of interrogation: (1) possible bars to the initiation of interrogation under the Fifth Amendment Miranda right-to-counsel cases of Arizona v. Roberson, 486 U.S. 675 (1988), and Maryland v. Shatzer, 559 U.S. 98 (2010); (2) the fact that any waiver of the Sixth Amendment right to counsel must be obtained even when the defendant is not in custody, because the Sixth Amendment right applies to a defendant whether or not he or she is in custody; and (3) the fact that surreptitious questioning of a defendant by an officer or officer’s agent violates the Sixth Amendment right to counsel, even after the overruling of Jackson.]
Rothgery v. Gillespie County, 554 U.S. 191 (2008). Local Texas officers arrested Rothgery and brought him before a Texas state magistrate who found probable cause, formally apprised him of the accusation against him, and set bail. Rothgery was soon released after posting bond. Based on an unwritten county policy of denying appointed counsel for indigent defendants out on bond until at least the entry of an information or indictment, Rothgery was not appointed counsel for six months. The only issue before the Court was whether the proceeding before the magistrate was the initiation of adversary judicial proceedings under the Sixth Amendment right to counsel so that the right to counsel attached (began) then. The Court, citing Brewer v. Williams, 430 U.S. 387 (1997), and other cases, ruled that the proceeding was the initiation of adversary judicial proceedings, which gave rise to the consequent State obligation to appoint counsel within a reasonable time once the defendant requested the assistance of counsel. The Court noted that a prosecutor need not be aware of or be involved with the proceeding for it to be considered the initiation of adversary judicial proceedings.
[Author’s note: (1) North Carolina’s current statutory law on appointment of counsel for judicial proceedings does not appear to be inconsistent with Rothgery. A defendant, if not released for a felony charge, is entitled under G.S. 15A-601(c) to a first appearance before a district court judge (which is when appointment of counsel for indigents is made) within ninety-six hours of being taken into custody or at the next district court session, whichever occurs first, or, if the defendant is released, at the next district court session. Although it was not decided in this case, it is highly likely that the Court would rule that neither a proceeding before a magistrate nor a first appearance before a district court judge is a critical stage of a prosecution at which a defendant has a Sixth Amendment right to counsel to represent him or her at these proceedings. There is a distinction between when the Sixth Amendment right to counsel attaches (begins) and a critical stage of a prosecution, at which a defendant has a Sixth Amendment right to have counsel represent him or her (the Court in Rothgery noted that distinction). A probable cause hearing is a critical stage, Coleman v. Alabama, 399 U.S. 1 (1970), and in any event there is a statutory right to counsel for an indigent defendant under G.S. 7A-451(b)(4) and for a nonindigent defendant under G.S. 15A-606(e). (2) The Court’s ruling does affect North Carolina case law on investigative activities, which had ruled that the Sixth Amendment right to counsel does not attach (begin) for a felony until the first appearance in district court or indictment, whichever occurs first. Thus, for a typical felony case that begins with an arrest either with or without a warrant and an appearance before a magistrate or other judicial official, the Sixth Amendment right to counsel attaches (begins) with the appearance before a magistrate. That means that a critical stage occurring thereafter (for example, an officer’s deliberate elicitation of information from the defendant by interrogation or conversation or the defendant’s appearance in a lineup) is subject to case law concerning the Sixth Amendment right to counsel. The attachment (beginning) of the Sixth Amendment right to counsel no longer awaits the defendant’s first appearance in district court. Based on Patterson v. Illinois, 487 U.S. 285 (1988), it is highly likely that the Court would rule that an officer’s interrogation of a defendant at or after the defendant’s appearance before a magistrate can be accomplished with Miranda warnings and waiver even though the defendant also has a Sixth Amendment right to counsel. North Carolina Supreme Court rulings are in accord. Of course, if the defendant requests counsel at or after the appearance before a magistrate, that request prevents interrogation even if the defendant is no longer in custody because the Sixth Amendment right to counsel, unlike Miranda’s Fifth Amendment right to counsel, applies whether or not the defendant is in custody.]
Fellers v. United States, 540 U.S. 519 (2004). A grand jury indicted the defendant for conspiracy to distribute methamphetamine. Law enforcement officers went to the defendant’s home to arrest him. They knocked on the door, the defendant answered, and the officers identified themselves and asked if they could come in. The defendant invited them in. The officers advised him that they wanted to discuss his involvement in methamphetamine distribution. They informed him that they had a federal warrant for his arrest and that a grand jury had indicted him for conspiracy to distribute methamphetamine. They then told him that the indictment referred to his involvement with certain people, four of whom they named. The defendant then told the officers that he knew the four people and had used methamphetamine during his association with them. After spending fifteen minutes in the defendant’s home, the officers took the defendant to a county jail. There they advised the defendant for the first time of his Miranda rights. He waived those rights and reiterated the incriminating statements that he had made in his home. The Court ruled, relying on Massiah v. United States, 377 U.S. 201 (1964), and other cases, that the officers deliberately elicited the statements made by the defendant in his home in violation of his Sixth Amendment right to counsel. The discussion at the home occurred after the defendant had been indicted, outside the presence of counsel, and in the absence of any waiver of the defendant’s Sixth Amendment rights. Responding to the argument that the defendant’s statements were not the product of interrogation by the officers, the Court noted that the legal standard for deliberately eliciting statements under the Sixth Amendment is different from the legal standard for custodial interrogation under the Fifth Amendment. [Author’s note: If the officers had advised the defendant of his Miranda rights and had obtained a valid waiver of those rights at his home, then under Patterson v. Illinois, 487 U.S. 285 (1988), the statements likely would have been properly obtained.] The Court remanded the case to the federal court of appeals to determine whether the defendant’s statements at the county jail were admissible—that is, whether the rationale of Oregon v. Elstad, 470 U.S. 298 (1985), applies to the Sixth Amendment violation in this case.
Texas v. Cobb, 532 U.S. 167 (2001). A home was burglarized, and a mother and daughter living there were missing. The defendant confessed to the burglary but denied any knowledge of the missing mother and daughter. He was indicted for the burglary, and a lawyer was appointed to represent him. Officers later received information that the defendant had murdered the mother and daughter; they obtained arrest warrants for the murders and arrested the defendant. They then gave him Miranda warnings and received a proper waiver, and the defendant confessed to the murders. The defendant argued, relying on Michigan v. Jackson, 475 U.S. 625 (1986), that his Sixth Amendment right to counsel had been violated because officers interrogated him about the murders, which were closely related factually to the burglary; thus, his Sixth Amendment right to counsel attached to the murders when he was indicted for the burglary, even though he had not yet been charged with those murders. The Court rejected the defendant’s argument, although it noted that some lower federal courts and state courts had adopted it.
The Court noted its ruling in McNeil v. Wisconsin, 501 U.S. 171 (1991), that the Sixth Amendment right to counsel is offense-specific. The Court ruled, however, that the term “offense” in its double jeopardy jurisprudence (see Blockburger v. United States, 284 U.S. 299 (1932)) applies to the determination of whether the Sixth Amendment right to counsel applies to related offenses so that a defendant has a Sixth Amendment right to counsel for an uncharged offense only if it is the same offense under the Blockburger test (an offense is not the same “offense” as another offense if each of two offenses has an element that is not in the other offense). The Court ruled that murder and burglary were not the same offense under the Blockburger test. Therefore, the defendant in this case did not have a Sixth Amendment right to counsel for the murder charges as a result of the burglary indictment, and thus the officers did not violate that right when they interrogated the defendant about the murders. See also United States v. Avants, 278 F.3d 510 (5th Cir. 2002) (court applied Cobb ruling to murder that was first prosecuted in state court and then prosecuted in federal court; murder prosecutions were different offenses under Sixth Amendment because they also were different offenses under Double Jeopardy Clause).
McNeil v. Wisconsin, 501 U.S. 171 (1991). The defendant was arrested for armed robbery and advised of his Miranda rights. He refused to answer questions, although he did not request an attorney. A public defender represented the defendant in court at a bail hearing, at which a preliminary examination was scheduled. Officers from another county investigating an unrelated murder there visited the defendant in jail three times, properly gave him Miranda warnings, obtained a waiver each time, and secured incriminating statements about the murder. The Court noted that it is undisputed that when the defendant gave the incriminating statements about the murder, his Sixth Amendment right to counsel had attached and had been invoked for the robbery charge (apparently at a court hearing on that charge). However, the Court ruled that that invocation was offense-specific (that is, only for the robbery charge) and did not constitute an invocation of the right to counsel under the Fifth Amendment. Therefore, the officers did not violate the defendant’s Fifth or Sixth Amendment rights to counsel by initiating interrogation about the murder: (1) his Sixth Amendment right to counsel had not attached for the murder because he had not yet been charged with that crime and (2) he had never asserted his right to counsel under the Fifth Amendment. The Court did not decide if the Fifth Amendment right to counsel can properly be asserted at a time other than during custodial interrogation, although it indicated in footnote 3 of its opinion that it can be asserted only during custodial interrogation.
Patterson v. Illinois, 487 U.S. 285 (1988). The defendant was arrested and then indicted for murder. Before he requested counsel, was assigned counsel, or retained counsel (see Maine v. Moulton, 474 U.S. 159 (1985); Michigan v. Jackson, 475 U.S. 625 (1986)), he was questioned by an officer and later by a prosecutor—after properly having been given Miranda warnings and having waived them. The Court ruled that (1) no Sixth Amendment violation occurred in questioning the defendant in this case because he had not asserted his right to counsel and (2) in the context of this case, involving a Sixth Amendment right to counsel for post-indictment questioning, Miranda warnings and waiver were sufficient to waive the defendant’s Sixth Amendment right to counsel. See also State v. Wynne, 329 N.C. 507 (1991) (assuming, without deciding, that defendant had a Sixth Amendment right to counsel (which he clearly did not), the court ruled that the officers’ giving of Miranda warnings and obtaining a waiver constituted a proper waiver of his Sixth Amendment right to counsel); United States v. Charria, 919 F.2d 842 (2d Cir. 1990) (Miranda warnings were sufficient to waive Sixth Amendment right to counsel); United States v. Muca, 945 F.2d 88 (4th Cir. 1991) (similar ruling).
In dicta, the Court stated that it need not decide whether a valid waiver must include a statement to the defendant that he or she has been indicted. [Author’s note: It appears that the Court would not require such a statement.]
The Court also noted that some post-indictment questioning or conduct that is permissible under the Fifth Amendment under Miranda would not be permissible under the Sixth Amendment: (1) an officer’s not telling the defendant that his lawyer was trying to reach him during questioning (Moran v. Burbine, 475 U.S. 412 (1986)) or (2) surreptitious, noncustodial questioning (United States v. Henry, 447 U.S. 264 (1980)).
Satterwhite v. Texas, 486 U.S. 249 (1988). Following Estelle v. Smith, 451 U.S. 454 (1981), discussed below in this section, the Court ruled that the defendant’s Sixth Amendment right to counsel was violated when, after the defendant had been indicted, the trial court ordered him, without actual notice to the defendant’s counsel, to undergo a psychiatric examination to determine his future dangerousness. Therefore, the psychiatrist’s testimony was inadmissible at the defendant’s capital sentencing hearing. The Court also ruled that a violation of Smith is subject to a harmless-error analysis. However, the Court determined that the violation in this case was not harmless error. See also Powell v. Texas, 492 U.S. 680 (1989) (defendant’s Sixth Amendment right to counsel was violated when, without notice to his lawyer, he was ordered to undergo psychiatric examination to determine his future dangerousness).
Buchanan v. Kentucky, 483 U.S. 402 (1987). When the defendant at trial offered the defense of “extreme emotional disturbance” by introducing psychological evaluations of his mental condition, the prosecutor in rebuttal offered psychological evidence from involuntary hospitalization proceedings that had resulted from a petition for involuntary hospitalization (which had been conducted before trial by motion of the prosecutor and defense counsel). Because the defendant had joined in the petition that led to this psychological evidence, neither his Fifth nor Sixth Amendment rights were violated. Estelle v. Smith, 451 U.S. 454 (1981), discussed below in this section, was distinguished. See also Pawlyk v. Wood, 237 F.3d 1054, opinion amended, 248 F.3d 815 (9th Cir. 2001) (no due process violation when State introduced testimony of former defense psychiatrist funded by State, whom defendant had elected not to offer as witness, in rebuttal to insanity evidence presented by second defense psychiatrist funded by State).
Moran v. Burbine, 475 U.S. 412 (1986). A defendant’s Sixth Amendment right to counsel is not violated by an officer’s interference with a relationship between a defendant and a lawyer that occurs before the initiation of adversary judicial proceedings, although a due process violation may be committed.
Estelle v. Smith, 451 U.S. 454 (1981). The defendant, indicted for murder, was in jail awaiting trial. A judge ordered a prosecutor to arrange a psychiatric examination of the defendant to determine his competency to stand trial. (The defendant did not request a psychiatric evaluation or attempt to introduce any psychiatric evidence at trial.) The psychiatrist later testified at a capital sentencing hearing about the defendant’s future dangerousness based on the defendant’s statements at his examination.
The Court ruled that because the defendant’s counsel was not notified in advance that the psychiatric examination would include the issue of future dangerousness, the defendant’s Sixth Amendment right to counsel was violated—he was denied the assistance of his attorneys in deciding whether to submit to the examination and not told how the psychiatrist’s findings would be used. The Court also ruled that the statements were admitted in violation of the defendant’s Fifth Amendment rights because he had not been given Miranda warnings before the examination. The Court noted that this was not a case involving a routine competency examination or a court’s ordering a defendant to undergo a State-requested psychiatric examination because the defendant has asserted an insanity defense and would be introducing supporting psychiatric testimony. For such a case, see State v. Jackson, 77 N.C. App. 491 (1985).
Brewer v. Williams, 430 U.S. 387 (1977). The defendant was arraigned before a judge in court under a warrant charging him with the murder of a young girl (whose body had not yet been found) and was committed to jail. His lawyer specifically told officers, who were about to transport the defendant to another jail, that they were not to question the defendant about the girl’s disappearance during the trip. While the defendant was being transported, a detective—who knew that the defendant was a former mental patient and deeply religious—spoke to him about the need to find the girl’s body to give her a decent Christian burial and how the falling snow might prevent her body from ever being found. The defendant then led the detective to the body.
The Court ruled that the defendant’s Sixth Amendment right to counsel was violated by the detective’s deliberate attempt to elicit information from him in the absence of counsel during the trip. The Court noted that although the defendant could have waived his right to counsel without notice to his lawyer, the State failed to satisfy its heavy burden of showing that this had happened. See also State v. Smith, 294 N.C. 365 (1978) (defendant may waive rights in absence of counsel and agree to be questioned by officers); State v. Bauguss, 310 N.C. 259 (1984).
McLeod v. Ohio, 381 U.S. 356 (1965). The defendant was indicted for a murder committed during a robbery. Before he had retained or had been assigned counsel, he voluntarily made an oral confession while he, a deputy sheriff, and a prosecutor were riding in the deputy’s car searching for the gun used in the robbery. The defendant had not waived his right to counsel before he confessed. The Ohio Supreme Court in Ohio v. McLeod, 203 N.E.2d 349 (Ohio 1964), ruled that the defendant’s Sixth Amendment right to counsel had not been violated and that his confession was admissible at trial. It stated that Massiah v. United States, 377 U.S. 201 (1964), was distinguishable because, although the defendant had confessed without counsel or waiver of counsel, he had done so willingly and in the presence of two public officers. It also noted that the defendant had not requested counsel before he confessed. The United States Supreme Court, citing Massiah, summarily reversed (without an opinion) the judgment of the Ohio Supreme Court. Compare this case with Patterson v. Illinois, 487 U.S. 285 (1988), discussed above in this section.
North Carolina Supreme Court
State v. Phillips, 365 N.C. 103 (2011). (1) The court ruled that officers did not violate the capital defendant’s Sixth Amendment right to counsel by continuing to question him after an attorney who had been appointed provisional counsel arrived at the sheriff’s office and was denied access to the defendant. The interrogation had begun before the attorney arrived, the defendant had waived his Miranda rights, and the defendant never stated that he wanted the questioning to stop or that he wanted to speak with an attorney. During interrogation, the defendant made incriminating statements. The court cited Moran v. Burbine, 475 U.S. 412 (1986), State v. Hyatt, 355 N.C. 642 (2002), and State v. Reese, 319 N.C. 110 (1987). (2) The court ruled that Office of Indigent Defense Services statutes and rules concerning an indigent’s entitlement to counsel did not make the defendant’s statements inadmissible at trial. Although the relevant statutes create an entitlement to counsel and authorize provisional counsel to seek access to a potential capital defendant, they do not override a defendant’s waiver of the right to counsel, which the defendant had executed in this case.
State v. Davis, 349 N.C. 1 (1998). A defendant does not have a Sixth Amendment right to have counsel present during a competency evaluation.
State v. Warren, 348 N.C. 80 (1998). [Author’s note: This case involved the trial and conviction of the defendant for a murder committed in High Point.] On May 29, 1990, the defendant requested counsel during custodial interrogation by an Asheville detective who was questioning him about a murder committed in Asheville. When the interrogation concluded, the defendant was arrested on an outstanding warrant for a motor vehicle violation and for misdemeanor larceny of the Asheville murder victim’s pocketbook. He was not, however, arrested or charged for the Asheville murder. He was represented by an attorney in Asheville district court for these charges and released on bond on June 7, 1990. The defendant was later arrested in High Point on July 20, 1990, for a South Carolina murder. He was properly given Miranda warnings and confessed to murders in South Carolina, New York, Asheville, and High Point.
(1) The defendant argued on appeal that the interrogation about the High Point murder violated his Fifth Amendment right to counsel. The court ruled, relying on a statement in McNeil v. Wisconsin, 501 U.S. 171 (1991), that the rule prohibiting re-initiation of interrogation after a defendant’s assertion of the right to counsel during custodial interrogation does not apply when there has been a break in custody (in this case, the defendant was released from custody on June 7, 1990, and was not arrested again until July 20, 1990). (2) The defendant argued on appeal that the interrogation violated his Sixth Amendment right to counsel. The court rejected this argument because this right is offense-specific, and adversary judicial proceedings had not begun for the High Point murder at the time of the interrogation. The defendant also argued on appeal that, despite the offense-specific requirement, his Sixth Amendment right to counsel had begun for the Asheville charges and they were inextricably intertwined with the High Point murder. While the court acknowledged that some cases had recognized the principle of inextricably intertwined cases triggering the Sixth Amendment right to counsel, the High Point murder and the Asheville charges were not such a case. In fact, the High Point murder had not even been committed when the Asheville charges were brought. [Author’s note: The later ruling in Texas v. Cobb, 532 U.S. 167 (2001), would require the same ruling in this case because the Asheville charges and the High Point murder were not the same offenses under the Sixth Amendment as set out in Cobb.]
State v. Adams, 345 N.C. 745 (1997). The court ruled that the defendant did not have a Sixth Amendment right to counsel when the State brought a civil petition for child abuse. The Sixth Amendment right to counsel applies only to criminal charges.
State v. Palmer, 334 N.C. 104 (1993). The court ruled that an officer who gave the defendant Miranda warnings sufficiently established the defendant’s valid waiver of his Sixth Amendment and state constitutional right to counsel. The officer was not required to explain specifically to the defendant that he was waiving his right to counsel under these constitutional provisions. See also United States v. Chadwick, 999 F.2d 1282 (8th Cir. 1993) (Miranda warnings sufficient to waive Sixth Amendment right to counsel; officer is not required to inform defendant that he or she has been indicted).
State v. Tucker, 331 N.C. 12 (1992). The defendant was indicted for murder on April 18, 1988. On April 20, 1988, the defendant made his first appearance in district court, and a lawyer was appointed to represent him. Later that day, the defendant met with his appointed lawyer, who told him not to talk with anyone without counsel. On April 21, 1988, the investigating officer met with the defendant (not at the defendant’s initiative) in the county jail and stated that he wanted the defendant to go with him to another county to look for the murder victim’s body. The defendant told the officer what his lawyer had said. The defendant also tried twice—unsuccessfully—to call his lawyer. The officer told the defendant that they needed to hurry and commented that he was after the defendant’s accomplice, not necessarily the defendant. The officer later obtained incriminating statements from the defendant, which were introduced at his murder trial. The court ruled that the officer violated the defendant’s Sixth Amendment rights to counsel.
The court also ruled that the officer violated the defendant’s Fifth Amendment right to counsel. Although under McNeil v. Wisconsin, 501 U.S. 171 (1991), the defendant’s request for counsel at the first appearance was not considered an assertion of the Fifth Amendment right to counsel, the court ruled that the defendant invoked his Fifth Amendment right to counsel by informing the officer of his desire to call his lawyer and in attempting to do so. Thus, under Edwards v. Arizona, 451 U.S. 477 (1981), the officer could not interrogate the defendant unless the defendant initiated communication with the officer. The officer’s continued interrogation of the defendant after he invoked his Fifth Amendment right to counsel violated Edwards, and the defendant’s later waiver of the right to counsel was invalid. Therefore, the incriminating statements were inadmissible at trial.
State v. Huff, 325 N.C. 1 (1989). After the defendant, charged with capital murder and first-degree murder, filed notice of his intent to rely on the insanity defense and to introduce expert testimony supporting it, the court—on the State’s motion—ordered the defendant to undergo examination at a state hospital about his mental state at the time of the offenses. Seven months later, when defense counsel questioned the defendant’s capacity to stand trial, the court ordered the defendant to undergo examination on that issue. At trial, after the defendant offered expert testimony on the insanity issue (including that of a doctor who had examined the defendant at the first court-ordered examination), the State offered, over the defendant’s objection, expert testimony on the insanity issue from the second court-ordered examination.
The court ruled that when a defendant relies on the insanity defense and introduces expert testimony about the defendant’s mental status, the State may introduce expert testimony based on prior court-ordered psychiatric examinations to rebut that testimony without violating the Fifth Amendment or Article I, Section 23 of the North Carolina Constitution because these constitutional provisions are inapplicable to these court-ordered psychiatric examinations. The court distinguished this case from Estelle v. Smith, 451 U.S. 454 (1981), discussed above in this section under “UNITED STATES SUPREME COURT,” and modified the rationale of State v. Jackson, 77 N.C. App. 491 (1985). The court also ruled that the defendant’s Sixth Amendment right to counsel (as well as his state constitutional right to counsel) was not violated by the court-ordered psychiatric examinations. Distinguishing Smith and relying on Buchanan v. Kentucky, 483 U.S. 402 (1987), discussed above in this section under “UNITED STATES SUPREME COURT,” the court ruled that the defendant’s right to effective assistance of counsel was not violated by defense counsel’s failure to anticipate that the examination results might be used to rebut the defendant’s insanity defense. It was sufficient under the Sixth Amendment that the defendant had an opportunity to discuss with his lawyer whether or not to submit to the second court-ordered examination and to discuss its scope as well. It was irrelevant that the second court order, which was to determine the defendant’s competency to stand trial, did not specify that the examination was also to determine his mental state at the time of the offenses. (The court also ruled that, based on the facts of this case, the State was entitled to a second court-ordered mental examination of the defendant.)
State v. Nations, 319 N.C. 318; 319 N.C. 329 (1987). The defendant was arrested for a sex offense with a child, placed in jail, and given Miranda warnings. He asserted his right to counsel and interrogation stopped. The defendant was provided a first appearance in district court, and counsel was appointed (his Sixth Amendment right to counsel attached at first appearance). About a week later, the defendant told a volunteer jailer that he wanted to speak with someone from mental health services. The protective services supervisor of the social services department was visiting in the jail and spoke with the defendant, who confessed to him. The defendant told the supervisor that he would be willing to talk with an officer. An officer arrived, gave the defendant Miranda warnings, and obtained a waiver. The defendant also confessed to the officer. The court ruled that the social services worker was not an agent of any law enforcement officer, the defendant initiated both contacts and volunteered his confession, and therefore no interrogation took place. Neither the defendant’s Fifth nor Sixth Amendment rights were violated.
State v. Reese, 319 N.C. 110 (1987). The defendant was arrested for murder, he asserted his right to counsel during custodial interrogation, and interrogation stopped. He was appointed counsel at his first appearance in district court. The defendant’s lawyer instructed officers not to question his client. However, in his lawyer’s absence, the defendant sought out an officer to make a statement. The officer reminded the defendant that he had appointed counsel, truthfully told him that his lawyer was unavailable because he was out of town, and asked the defendant if he still wanted to talk with him. The defendant stated that he still wanted to make a statement. He then voluntarily, knowingly, and intelligently waived his Fifth and Sixth Amendment rights to counsel before he gave a statement; the officer specifically reminded him that he had appointed counsel.
The court ruled that the defendant’s waiver was valid despite the fact that the officer did not inform the defendant of his lawyer’s instruction to the officers. His lawyer’s instruction was irrelevant in determining the validity of the defendant’s waiver of counsel. The Fifth and Sixth Amendment right to counsel belongs to the defendant; a defendant’s attorney cannot control a defendant’s own exercise of his or her constitutional rights. To the extent that State v. Bauguss, 310 N.C. 259 (1984), indicated that a lawyer can control access to his or her client under these circumstances, it was overruled.
North Carolina Court of Appeals
State v. Williams, 209 N.C. App. 255 (2011). The court ruled, relying on State v. Strobel, 164 N.C. App. 310 (2004), that no violation of the defendant’s Sixth Amendment right to counsel occurred when detectives interviewed him on new charges while he was in custody on other unrelated charges. The Sixth Amendment right to counsel is offense-specific and had not attached for the new crimes.
State v. Strobel, 164 N.C. App. 310 (2004). Three people were involved in an armed robbery. The defendant was arrested for conspiracy to commit the armed robbery, appeared in district court, and requested and was appointed an attorney in December 2001. Based on additional information implicating her as a participant in the robbery, in January 2002, an officer arrested the defendant for armed robbery. The officer did not orally advise the defendant of her Miranda rights. Instead, he gave her a written form and asked her to read it. She signed each page of the statement that acknowledged that she had read it. During her interrogation, the defendant mentioned that she had a court-appointed attorney representing her on the conspiracy charge. The officer told the defendant that she could use the telephone and telephone book located in the room to call her attorney. He also told her that he would stop interrogation until she had the opportunity to talk to her lawyer. The court ruled, relying on Texas v. Cobb, 532 U.S. 162 (2001), and State v. Warren, 348 N.C. 80 (1998), that the officer did not violate the defendant’s Sixth Amendment right to counsel when he arrested and interrogated her for the armed robbery charge after she already had been charged and had an attorney for the related charge of conspiracy to commit armed robbery. The two charges were separate under the standard set out in the Cobb ruling.
State v. Harris, 111 N.C. App. 58 (1993). The defendant was arrested for an armed robbery of a Fast Fare store, committed to jail, and given his first appearance in district court, where he declined appointed counsel (he stated he would hire his own attorney). He remained in jail for that charge. The next day, he changed his mind and requested and was appointed counsel. Later that day, a detective who was investigating an unrelated armed robbery of a Circle K store interrogated the defendant after properly giving him Miranda warnings and obtaining a waiver of rights. Relying on McNeil v. Wisconsin, 501 U.S. 171 (1991), the court ruled that the defendant, when he invoked his Sixth Amendment right to counsel for the Fast Fare robbery, did not invoke his Fifth Amendment right to counsel concerning the interrogation about the Circle K robbery (he did not have a Sixth Amendment right to counsel because he had not yet been charged for that offense). The court also rejected the defendant’s arguments under Article I, Section 23 of the North Carolina Constitution.
Federal Appellate Courts
United States v. Montgomery, 262 F.3d 233 (4th Cir. 2001). The defendant was charged with murder in state court and invoked his Sixth Amendment right to counsel. The State later dismissed the murder charge. Thereafter, federal authorities obtained a statement from the defendant about the murder and prosecuted him for that murder. The court ruled that the defendant’s invocation of his right to counsel did not bar federal authorities from eliciting statements from him, absent evidence that the federal and state authorities attempted to circumvent the defendant’s Sixth Amendment right to counsel.
United States v. Hayes, 231 F.3d 663 (9th Cir. 2000). The defendant, who was not at the time charged with an offense, was informed that he was a target of federal investigation and hired counsel (counsel was later appointed for him when he no longer had retained counsel). Another person targeted for investigation, after being deposed by the government, agreed to wear a wire and to tape a conversation with the defendant. The defendant was later charged with various federal offenses, including conspiracy to defraud the United States and conspiracy to commit mail fraud. The defendant sought to exclude the tape recording at trial, arguing that he had a constitutional right to counsel when the government notified individuals that they were targets of the investigation and sought to depose select targets; this amounted to the initiation of formal charges according to the defendant. However, the court ruled that the defendant did not have a Sixth Amendment right to counsel so as to require suppression of the recording. The Sixth Amendment right to counsel applies only when a formal charge has been brought, which the court ruled did not happen here. The fact that a defendant has counsel does not by itself create a Sixth Amendment right to counsel to bar interrogation by the government.
Chewning v. Rogerson, 29 F.3d 418 (8th Cir. 1994). The court ruled that the defendant’s representation by an attorney at an extradition hearing was not an invocation of his Sixth Amendment right to counsel for the murder charge for which he was being extradited.
Polygraph Examination Issues
NORTH CAROLINA SUPREME COURT
State v. Coffey, 345 N.C. 389 (1997). The defendant was arrested for murder, jailed, and two attorneys were appointed to represent him. The attorneys requested that the district attorney conduct a polygraph examination on the defendant but did not express any desire to accompany their client to the polygraph site. When the defendant was being removed from his jail cell for the polygraph examination, he told a deputy sheriff that he wanted to call his attorney. The deputy declined to allow the defendant to do so because the policy of the sheriff’s office did not permit a prisoner to make a telephone call while being transported from one facility to another. Later, when the polygraph operator was explaining the polygraph procedures to the defendant, the defendant stated that he did not tell investigating officers the truth about the money taken from the murder victim. The operator asked him what he did not tell the truth about. The defendant said that he was handed the money by his accomplice and the accomplice “went off.” The operator did not ask any further questions; instead, he conducted the polygraph examination. After the examination, the operator informed the defendant that he had not passed the polygraph about the murder and robbery. The defendant then made an incriminating statement. The operator asked the defendant if he would be willing to talk to one of the investigating officers. The defendant named a particular officer and later repeated the same incriminating statement to that officer.
The court ruled that the defendant was not being interrogated in violation of Edwards v. Arizona, 451 U.S. 477 (1981) (interrogation is not permitted after defendant has asserted right to counsel), when he made his statements to the polygraph operator and the investigating officer. These statements were volunteered by the defendant. Thus, neither his Fifth nor Sixth Amendment rights to counsel were violated. The court alternatively ruled, assuming that the defendant was being interrogated, that the defendant initiated the communication with the polygraph operator and the investigating officer. See, e.g., Oregon v. Bradshaw, 462 U.S. 1039 (1983).
NORTH CAROLINA COURT OF APPEALS
State v. Shepherd, 163 N.C. App. 646 (2004). The defendant was arrested and charged with several sex offenses. He requested, through his attorney, to take a polygraph test concerning the offenses. Before the polygraph test, the defendant and his attorney signed documents waiving the attorney’s presence at the polygraph examination. During the polygraph examiner’s post-test interview, the defendant made incriminating statements that were introduced at trial. The court noted the examiner’s testimony that the examination consisted of a pre-test examination, the instrumentation phase, and the post-test interview. The court ruled, relying on State v. Soles, 119 N.C. App. 375 (1995), that the defendant’s waiver of counsel applied to all phases of the examination and thus permitted the introduction of the defendant’s incriminating statements made without his counsel’s presence.
State v. Soles, 119 N.C. App. 375 (1995). Officers took the defendant, with his consent, to Gastonia, North Carolina, for questioning. The defendant was not handcuffed during a four-hour interview, was left alone, and was allowed to use the vending machines. The defendant conceded on appeal that he was free to leave and voluntarily gave a statement to the officers. The court ruled that the defendant was not in custody so as to require Miranda warnings. At a second interview six days later, a polygraph examiner confronted the defendant about patterns of deception and questioned him in addition to the polygraph testing. The operator had given Miranda warnings to the defendant and obtained a waiver before the testing. In any event, the court ruled that the defendant was not in custody so as to require Miranda warnings because the defendant had voluntarily come to the police station for the polygraph and was free to leave at any time. The court also ruled, based on the facts in this case, that the defendant’s second statement was voluntarily given.
Mental Examination Issues
UNITED STATES SUPREME COURT
Satterwhite v. Texas, 486 U.S. 249 (1988). Following Estelle v. Smith, 451 U.S. 454 (1981), discussed below in this section, the Court ruled that the defendant’s Sixth Amendment right to counsel was violated when, after he had been indicted, the trial court ordered him, without actual notice to his counsel, to undergo a psychiatric examination to determine his future dangerousness. Therefore, the psychiatrist’s testimony was inadmissible at the defendant’s capital sentencing hearing. The Court also ruled that a violation of Smith is subject to a harmless-error analysis. However, the Court determined that the violation in this case was not harmless error. See also Powell v. Texas, 492 U.S. 680 (1989) (defendant’s Sixth Amendment right to counsel was violated when, without notice to his lawyer, he was ordered to undergo psychiatric examination to determine his future dangerousness).
Buchanan v. Kentucky, 483 U.S. 402 (1987). When the defendant at trial offered the defense of “extreme emotional disturbance” by introducing psychological evaluations of his mental condition, the prosecutor in rebuttal offered psychological evidence from involuntary hospitalization proceedings that had resulted from a petition for involuntary hospitalization (which had been conducted before trial by motion of the prosecutor and defense counsel). Because the defendant had joined in the petition that led to this psychological evidence, neither his Fifth nor Sixth Amendment rights were violated. Estelle v. Smith, 451 U.S. 454 (1981), discussed immediately below, was distinguished. See also Pawlyk v. Wood, 237 F.3d 1054, opinion amended, 248 F.3d 815 (9th Cir. 2001) (no due process violation when State introduced testimony of former defense psychiatrist funded by State, whom defendant had elected not to offer as witness, in rebuttal to insanity evidence presented by second defense psychiatrist funded by State).
Estelle v. Smith, 451 U.S. 454 (1981). The defendant, indicted for murder, was in jail awaiting trial. A judge ordered a prosecutor to arrange a psychiatric examination of the defendant to determine his competency to stand trial. (The defendant did not request a psychiatric evaluation or attempt to introduce any psychiatric evidence at trial.) The psychiatrist later testified at a capital sentencing hearing about the defendant’s future dangerousness based on the defendant’s statements at his examination.
The Court ruled that because the defendant’s counsel was not notified in advance that the psychiatric examination would include the issue of future dangerousness, the defendant’s Sixth Amendment right to counsel was violated—he was denied the assistance of his attorneys in deciding whether to submit to the examination and not told how the psychiatrist’s findings would be used. The Court also ruled that the statements were admitted in violation of the defendant’s Fifth Amendment rights because he had not been given Miranda warnings before the examination. The Court noted that this was not a case involving a routine competency examination or a court’s ordering a defendant to undergo a State-requested psychiatric examination because the defendant has asserted an insanity defense and would be introducing supporting psychiatric testimony. For such a case, see State v. Jackson, 77 N.C. App. 491 (1985).
NORTH CAROLINA SUPREME COURT
State v. Huff, 325 N.C. 1 (1989). After the defendant, charged with capital murder and first-degree murder, filed notice of his intent to rely on the insanity defense and to introduce expert testimony supporting it, the court—on the State’s motion—ordered the defendant to undergo examination at a state hospital about his mental state at the time of the offenses. Seven months later, when defense counsel questioned the defendant’s capacity to stand trial, the court ordered the defendant to undergo examination on that issue. At trial, after the defendant offered expert testimony on the insanity issue (including that of a doctor who had examined the defendant at the first court-ordered examination), the State offered, over the defendant’s objection, expert testimony on the insanity issue from the second court-ordered examination.
The court ruled that when a defendant relies on the insanity defense and introduces expert testimony about the defendant’s mental status, the State may introduce expert testimony based on prior court-ordered psychiatric examinations to rebut that testimony without violating the Fifth Amendment or Article I, Section 23 of the North Carolina Constitution because these constitutional provisions are inapplicable to these court-ordered psychiatric examinations. The court distinguished this case from Estelle v. Smith, 451 U.S. 454 (1981), discussed immediately above, and modified the rationale of State v. Jackson, 77 N.C. App. 491 (1985). The court also ruled that the defendant’s Sixth Amendment right to counsel (as well as his state constitutional right to counsel) was not violated by the court-ordered psychiatric examinations. Distinguishing Smith and relying on Buchanan v. Kentucky, 483 U.S. 402 (1987), discussed above in this section under “UNITED STATES SUPREME COURT,” the court ruled that the defendant’s right to effective assistance of counsel was not violated by defense counsel’s failure to anticipate that the examination results might be used to rebut the defendant’s insanity defense. It was sufficient under the Sixth Amendment that the defendant had an opportunity to discuss with his lawyer whether or not to submit to the second court-ordered examination and to discuss its scope as well. It was irrelevant that the second court order, which was to determine the defendant’s competency to stand trial, did not specify that the examination was also to determine his mental state at the time of the offenses. (The court also ruled that, based on the facts of this case, the State was entitled to a second court-ordered mental examination of the defendant.)
(This topic is discused in the chapter text under “The Sixth Amendment Right to Counsel and the Use of Informants to Obtain Statements.”)
United States Supreme Court
Kuhlmann v. Wilson, 477 U.S. 436 (1986). The defendant was arrested for robbery and murder. He told officers that he witnessed the robbery but denied being involved. He was arraigned before a judge and committed to jail. A detective placed a police informant in the defendant’s cell (the defendant did not know that he was an informant). The detective instructed the informant not to ask the defendant any questions but simply to “keep [his] ear open” for the names of accomplices in the robbery and murder. At first the defendant told the informant the same story he had told the officers, although the informant told the defendant that his explanation “didn’t sound too good.” A few days later, the defendant’s brother visited him and told him that his family was upset because they believed that the defendant was involved in the crimes. After the visit, the defendant essentially confessed to the informant. The informant told the detective about the confession and gave him notes about it that he had written surreptitiously in his cell.
Distinguishing United States v. Henry, 447 U.S. 264 (1980), and Maine v. Moulton, 474 U.S. 159 (1985), discussed immediately below, the Court ruled that the defendant’s confession was not taken in violation of his Sixth Amendment right to counsel. The Court stated that a defendant’s right to counsel is not violated by the fact, standing alone, that an informant, either voluntarily or by prior agreement, reports incriminating statements to a law enforcement officer. Instead, some evidence must exist that an officer and his or her informant deliberately intended to elicit incriminating statements—not merely to listen for information. In this case, the detective only instructed the informant to listen to the defendant to determine the identities of other participants in the robbery and murder (solid evidence already linked the defendant to these crimes). The informant never asked the defendant about the pending charges; he only listened to the defendant’s spontaneous and unsolicited statements. The mere fact that the informant commented unfavorably to the defendant about his initial version of noninvolvement in the crimes was not sufficient to find in this case that the informant deliberately elicited the defendant’s later incriminating statements. See also United States v. York, 933 F.2d 1343 (7th Cir. 1991) (although inmate was government agent, he did not deliberately elicit information from defendant); United States v. Stubbs, 944 F.2d 828 (11th Cir. 1991) (similar ruling).
Maine v. Moulton, 474 U.S. 159 (1985). The defendant was indicted for theft charges along with his codefendant, Colson. The defendant retained a lawyer, pled not guilty, and was released on bail. Sometime later, the defendant met with Colson and suggested killing one of the State’s witnesses, and they discussed how to commit the murder. Colson eventually confessed to officers about his involvement with the thefts and some other crimes, and he told them about the plan to kill the witness. The officers offered Colson a deal: they would bring no further charges if he would testify against the defendant and cooperate with them. Colson also agreed to have his telephone conversations recorded in order to pick up conversations with the defendant and any anonymous threats (Colson had told the officers that he had received threatening calls). The defendant—unaware that Colson was cooperating with the officers—asked Colson to meet him to discuss their defense at their upcoming theft trial. The officers wired Colson for this meeting and told him not to question the defendant but just to have a conversation. During this meeting, the defendant made incriminating statements, which were used at his theft trial.
The Court ruled that the officers deliberately elicited these incriminating statements in violation of the defendant’s Sixth Amendment right to counsel. The officer’s instructions to Colson were not sufficient to protect against Colson’s discussing the pending theft charges with the defendant, especially because they knew that the defendant had set up the meeting for that purpose. Although the State argued that it had a legitimate reason to record the conversations—the proposed killing of a State’s witness—the Court stated that the officers had a dual purpose: the continued investigation of the theft charges and the proposed murder. However, the Court clearly stated that the defendant’s incriminating statements about the proposed murder would be admissible in a trial for that charge because his Sixth Amendment right to counsel had not attached for that crime.
United States v. Henry, 447 U.S. 264 (1980). The defendant was indicted (thus, his Sixth Amendment right to counsel had attached) for armed robbery and was in jail awaiting trial. A federal officer who was investigating the robbery asked a paid government informant who was incarcerated in the same jail (he eventually shared a cell with the defendant) to be alert to any statements made by federal prisoners there. The officer instructed the informant that he should not initiate any conversations with the defendant or any other prisoner but should pay attention to any information the defendant might furnish. The defendant eventually revealed information to the informant about his participation in the robbery.
The Court stated that, in cases involving statements by defendants obtained through the use of informants, the issue is whether the informant, a government agent, “deliberately elicited” statements from the defendant. It ruled that the informant here did so in violation of the defendant’s Sixth Amendment right to counsel. First, the defendant was unaware that the informant was acting as a government agent. Second, the informant had an incentive to produce useful information—he was paid only if he produced useful information. Third, the fact that the informant and defendant were confined together made the defendant particularly susceptible to the informant’s ploys.
The Court noted that although the federal officer instructed the informant not to question the defendant, the informant was not a passive listener—rather, he talked with the defendant, and the statements at issue resulted from these conversations. Even if the federal agent did not intend that the informant affirmatively take steps to secure information from the defendant, he must have known that the close proximity of the two would probably lead to that result. This was not a case of a passive listener or a passive listening device that overhears statements. (See Kuhlmann v. Wilson, 477 U.S. 436 (1986), discussed above in this section.) The Court noted that it did not question its prior rulings concerning the permissive use of undercover agents in obtaining statements from people not in custody and before their Sixth Amendment right to counsel had attached, as occurred in Hoffa v. United States, 385 U.S. 293 (1966) (defendant’s incriminating statements made to secret government informant during the course of labor-racketeering trial were admissible at later jury-tampering charge because defendant made statements before his Sixth Amendment right to counsel had attached for that charge), and United States v. White, 401 U.S. 745 (1971) (no Fourth Amendment violation occurred when government agent was wired to transmit to officers his conversations about drug transactions with defendant; conversations took place before defendant’s Sixth Amendment right to counsel had attached for drug charges). See also State v. Thompson, 322 N.C. 204 (1992) (no Fourth or Sixth Amendment violations occurred when officers used accomplice to elicit incriminating statements from defendant, who had not been charged with any offense).
Massiah v. United States, 377 U.S. 201 (1964). The defendant was indicted for importing drugs into the United States, retained a lawyer, pled not guilty, and was released on bail. A federal agent wired an accomplice’s car (with the accomplice’s permission but without the defendant’s knowledge) with a radio transmitter. While the accomplice and the defendant sat in the car and talked about the case, the agent listened to their conversations and heard the defendant make incriminating statements about the drug charges. The Court ruled that the defendant’s right to counsel had been violated because the government deliberately elicited statements from the defendant after his right to counsel had attached.
North Carolina Supreme Court
State v. Taylor, 332 N.C. 372 (1992). The defendant was in jail awaiting trial for murder. Another inmate reported to a State Bureau of Investigation (SBI) agent about incriminating statements made by the defendant. The SBI agent told the inmate that he should not make any further contact with the defendant and that the inmate was not working for anyone on behalf of the State. The agent also refused to make any deals with the inmate for the information. The agent had five more meetings with the inmate, who revealed additional incriminating statements made by the defendant. Relying on Kuhlmann v. Wilson, 477 U.S. 436 (1986), discussed above in this section under “UNITED STATES SUPREME COURT,” the court ruled that the defendant’s statements to the inmate were not taken in violation of the defendant’s Sixth Amendment right to counsel.
North Carolina Court of Appeals
State v. Brown, 67 N.C. App. 223 (1984). The defendant’s Sixth Amendment right to counsel was not violated when an officer recorded conversations between an undercover informant and the defendant concerning (1) a crime (solicitation to murder) for which the defendant’s Sixth Amendment right to counsel had not attached and (2) crimes for which the defendant’s Sixth Amendment right to counsel had attached (he had been indicted), because the defendant had waived his right to counsel in court. [Author’s note: Although decided before Maine v. Moulton, 474 U.S. 159 (1985), discussed above in this section under “UNITED STATES SUPREME COURT,” this case appears to be consistent with it because the defendant had waived his right to counsel and had agreed to represent himself.]
Federal Appellate Courts
United States v. LaBare, 191 F.3d 60 (1st Cir. 1999). When a jail inmate simply agrees to report whatever he or she learns about crimes from other inmates in general (without a focus on a particular inmate), the inmate is not a government agent for the purpose of the ruling in Massiah v. United States, 377 U.S. 201 (1964), discussed above in this section under “UNITED STATES SUPREME COURT.”
United States v. Ford, 176 F.3d 376 (6th Cir. 1999). The government did not violate the defendant’s Sixth Amendment right to counsel by sending an informant into the defendant’s jail cell to tape record conversations about uncharged offenses that the defendant may have committed. The court also ruled that federal prosecutors did not violate Rule 4.2 of the Kentucky Rules of Professional Conduct (which is substantially identical to Rule 4.2 of the North Carolina Rules of Professional Conduct) by using the informant in this way. The court noted that Rule 4.2 (“a lawyer shall not communicate about the subject of the representation . . .”) did not apply because the prosecutors were investigating an offense other than the offense for which the defendant was indicted. [Author’s note: See 97 Formal Ethics Opinion 10 of the North Carolina State Bar, which is not inconsistent with the ruling on the ethical issue in this case.]
United States v. Ingle, 157 F.3d 1147 (8th Cir. 1998). The defendant, who was being held in a correctional facility on an unrelated charge, was appointed a lawyer to represent him during custodial interrogation and grand jury proceedings concerning a murder for which he was a suspect but was not charged. The court ruled that the government did not violate the defendant’s Sixth Amendment right to counsel when it arranged for other inmates to elicit incriminating statements about the murder from the defendant. The appointment of counsel did not trigger the right to counsel when the defendant had not been charged with the murder.
Brooks v. Kincheloe, 848 F.2d 940 (9th Cir. 1988). A jail inmate asked the defendant, who was also in jail, questions about the defendant’s murder of a young boy. The inmate did this before having any conversations with detectives. The court ruled that the detectives did not violate the defendant’s Sixth Amendment right to counsel. The inmate was not a government agent when the defendant made his incriminating statements to him. See also United States v. Watson, 894 F.2d 1345 (D.C. Cir. 1990) (government informant in jail spoke to defendant without any encouragement from officers; no violation of defendant’s Sixth Amendment right to counsel; informant’s mere hope of reward for giving government contents of conversation did not make government responsible for informant’s actions); United States v. Love, 134 F.3d 595 (4th Cir. 1998) (similar ruling); United States v. Birbal, 113 F.3d 342 (2d Cir. 1997) (similar ruling).
Use of Evidence Obtained as the Result of a Violation of the Sixth Amendment Right to Counsel
UNITED STATES SUPREME COURT
Kansas v. Ventris, 556 U.S. 586 (2009). The Court ruled that the defendant’s incriminating statement to a jailhouse informant, assumed to have been obtained in violation of the defendant’s Sixth Amendment right to counsel, was admissible on rebuttal to impeach the defendant’s trial testimony that conflicted with the statement. [Author’s note: The statement would not have been admissible during the State’s presentation of evidence in its case in chief.]
Michigan v. Harvey, 494 U.S. 344 (1990). Officers obtained a statement from the defendant by violating the ruling in Michigan v. Jackson, 475 U.S. 625 (1986). [Author’s note: Jackson was overruled by Montejo v. Louisiana, 556 U.S. 778 (2009).] The prosecutor used the statement to impeach the defendant when he testified at his trial. The Court ruled that using the statement for impeachment was permissible, at least when the defendant knowingly and voluntarily waived his right to counsel before he gave the statement.
Nix v. Williams, 467 U.S. 431 (1984). [Author’s note: For the facts of this case, see Brewer v. Williams, 430 U.S. 387 (1997).] The Court ruled that although a defendant’s statements are inadmissible at trial when they are obtained in violation of the Sixth Amendment right to counsel, other evidence obtained as a result of the statements is admissible if the State proves by a preponderance of evidence that the evidence would inevitably have been discovered by lawful means without using the defendant’s illegally obtained statements. The Court ruled that the State had in this case satisfied its burden of proving that the victim’s body would have been discovered by a searching party even if the defendant’s illegally obtained statements had not been used to find it. The Court rejected the contention that, as part of the inevitable-discovery rule, the State must prove that the officer who unlawfully obtained the defendant’s statements committed the Sixth Amendment violation in a good-faith belief that he was acting lawfully. [Author’s note: The inevitable-discovery rule also may apply—under appropriate circumstances—to Fourth Amendment and other constitutional violations.] See United States v. Satterfield, 743 F.2d 827 (11th Cir. 1984); United States v. Merriweather, 777 F.2d 503 (9th Cir. 1985); United States v. Andrade, 784 F.2d 1431 (9th Cir. 1986) (routine inventory would have inevitably discovered drugs in defendant’s garment bag after arrest).
Admission of Defendant’s Statements after an Alleged Unconstitutional Arrest
When an Unconstitutional Arrest Occurred
UNITED STATES SUPREME COURT
New York v. Harris, 495 U.S. 14 (1990). Officers with probable cause to arrest the defendant entered his apartment without an arrest warrant, consent, or exigent circumstances in violation of Payton v. New York, 445 U.S. 573 (1980), and arrested him. The defendant was taken to the police station and properly given his Miranda rights; he then waived them and confessed. Thus, his confession was obtained outside the place—his apartment—where the Fourth Amendment violation occurred. Distinguishing Brown v. Illinois, 422 U.S. 590 (1975), Dunaway v. New York, 442 U.S. 200 (1979), and Taylor v. Alabama, 457 U.S. 687 (1982), discussed immediately below, in which officers lacked probable cause to arrest the defendants, the Court ruled that a defendant’s statement is admissible at trial when officers have probable cause to arrest and the statement is obtained outside the place where the Payton violation occurred. The Court explained that once the defendant in this case was outside his apartment, he was no longer in unlawful custody because his arrest was supported by probable cause. Therefore, the defendant’s statement was no longer the fruit of the unconstitutional arrest made in his apartment.
Taylor v. Alabama, 457 U.S. 687 (1982). When a defendant is arrested without probable cause, a statement made as a result of interrogation is inadmissible at trial unless the State proves that intervening events broke the causal connection between the unconstitutional arrest and the statement, so that the statement is an act of free will that purges the primary “taint” of the unconstitutional arrest. The fact that the statement is voluntarily given under the Fifth Amendment (and in compliance with the Miranda rule) is not sufficient by itself to purge the taint. Factors to consider in determining the admissibility of a statement include (1) the time between a defendant’s arrest and statement, (2) the presence of intervening circumstances, and (3) the purpose and flagrancy of officer misconduct. See also Dunaway v. New York, 442 U.S. 200 (1979); Brown v. Illinois, 422 U.S. 590 (1975); Lanier v. South Carolina, 474 U.S. 25 (1985); State v. Freeman, 307 N.C. 357 (1983); State v. Allen, 332 N.C. 123 (1992). But see Rawlings v. Kentucky, 448 U.S. 98 (1980) (statement made after illegal detention admissible under Brown analysis).
When an Unconstitutional Arrest or Seizure Did Not Occur
NORTH CAROLINA SUPREME COURT
State v. Knight, 340 N.C. 531 (1995). The murder victim was stabbed twenty-seven times, was castrated, and his penis was inserted in his mouth. Officers went to the defendant’s home to execute arrest and search warrants for this murder. They knocked on the front door several times and announced, “Police! Search warrant!” at least two or three times. After waiting thirty to sixty seconds and hearing no response from inside the residence, the officers used a battering ram to open the door. They entered the residence, conducted a quick sweep for weapons, and arrested the defendant. The defendant was taken to the police station, where he confessed to his participation in the murder and also told officers the location in his residence of one of the knives used in the murder.
The court ruled that the officers’ forcible entry into the premises was reasonable under the Fourth Amendment (see Wilson v. Arkansas, 514 U.S. 927 (1995)) and that it complied with the provisions of G.S. Chapter 15A. They had probable cause to believe that further delay in entering the residence or the giving of more-specific notice would endanger their own safety or the safety of the other occupants of the residence. They knew that the defendant was dangerous, armed with a hunting knife and possibly firearms; there was at least one other suspect who had not been arrested; they were concerned about the safety of a woman and her children inside the residence, who might become hostages; and if the entry was not forced, it would not be safe. The court ruled, citing New York v. Harris, 495 U.S. 14 (1990) (confession not to be suppressed, even though officers made unconstitutional entry into home to arrest defendant, when officers had probable cause to arrest and confession was taken outside home), that even assuming that the forcible entry was unconstitutional, the defendant’s confession at the police station was still admissible. The confession was not the fruit of the alleged illegal entry into the home when the confession was taken at another location and the officers had probable cause to arrest the defendant in any event.
State v. Simpson, 303 N.C. 439 (1981). The defendant was not arrested or otherwise seized under the Fourth Amendment when he voluntarily accompanied officers to a law enforcement building at their request, was taken to an unlocked interrogation room, and was interviewed throughout the day but was never arrested, handcuffed, restrained, or otherwise treated as if in custody until an arrest warrant was served in the evening. An officer’s statement at a court hearing that the defendant was in his “custody” during the day was not dispositive when the evidence showed that the restraint on the defendant’s freedom was not so great as to constitute a seizure under the Fourth Amendment. See also State v. Bromfield, 332 N.C. 24 (1992); State v. Johnson, 317 N.C. 343 (1986); State v. Jackson, 308 N.C. 549 (1983), later appeal, 317 N.C. 1 (1986); State v. Davis, 305 N.C. 400 (1982); State v. Morgan, 299 N.C. 191 (1980); State v. Reynolds, 298 N.C. 380 (1979); State v. Cass, 55 N.C. App. 291 (1982).
Defendant’s Statements after a North Carolina Statutory Violation
NORTH CAROLINA SUPREME COURT
State v. Wallace, 351 N.C. 481 (2000). The defendant was arrested pursuant to an outstanding arrest warrant for a larceny, but he also was a suspect in three murders. Before giving Miranda warnings, officers spoke with the defendant for about three hours, mostly about sports, his employment and military experience, and his biographical information. The defendant voluntarily raised the issue of his drug use. The officers did not interrogate him about the murders for which he was a suspect and did not ask any questions designed to elicit incriminating responses. After properly being given Miranda warnings, the defendant confessed to nine murders. He was given opportunities to use the restroom and was fed. At some point during the interrogation, the defendant requested to see his girlfriend and daughter. An officer told the defendant that the police would attempt to contact them but that they had no control over whether either of them would come to see him. The defendant was taken to a magistrate nineteen hours after his arrest (he had slept four hours just before being taken to the magistrate).
(1) The court ruled that the officers did not violate G.S. 15A-501(2) by taking the defendant to a magistrate nineteen hours after his arrest. Because of the number of crimes to which the defendant confessed and the amount of time needed to record the details of the crimes—along with the officers’ accommodation of the defendant’s request to sleep—the delay was not unnecessary under the statute. (2) The court also ruled that there was not a substantial violation of any of the provisions of G.S. 15A-501 that would require the defendant’s confession to be suppressed.
State v. Chapman, 343 N.C. 495 (1996). On August 23, 1993, about 9:30 a.m., the defendant was arrested at a bank for attempting to cash a forged check. He waived his Miranda rights and admitted that he had attempted to cash a check that he had forged after taking it in a robbery. Officers took the defendant to a school to search for a purse that had been taken in the robbery. They then returned the defendant to the police station, where he confessed to forgery and uttering charges. A detective procured arrest warrants for these charges at 12:15 p.m. and served them on the defendant. The defendant then was questioned by another detective who was investigating the robbery in which the checks were taken, and the defendant confessed to the robbery at 1:27 p.m. Officers prepared an arrest warrant to charge the defendant for the robbery, but it was not presented to the magistrate at that time.
The defendant then was interviewed by yet another detective about a robbery and murder (not related to the crimes discussed previously). The detective put nine photos of the murder victim on the walls of the interrogation room and one photo of the victim on the floor directly in front of the chair in which the defendant sat during the interrogation. Thus, the defendant saw a photo of the victim in every direction he turned. During the interview, the detective falsely implied to the defendant that a note found next to the victim’s body had been the subject of handwriting analysis that showed it was the defendant’s handwriting and that the defendant’s fingerprints were on the note. The defendant confessed to the murder at about 7:05 p.m. and was taken to a magistrate at about 8:00 p.m.
(1) The court ruled that there was no unreasonable delay in the magistrate’s determination of whether there was probable cause to issue an arrest warrant. Distinguishing County of Riverside v. McLaughlin, 500 U.S. 44 (1991), and Gerstein v. Pugh, 420 U.S. 1034 (1975), the court noted that the defendant was arrested at 9:30 a.m. without a warrant and that a magistrate issued an arrest warrant based on probable cause at 12:30 p.m. This procedure satisfied the rulings in these cases that a magistrate promptly determine probable cause. The court noted that the defendant was then in lawful custody and could be interrogated about other crimes. (2) The court ruled that the defendant’s statutory right under G.S. 15A-501(2) to be taken to a magistrate without unnecessary delay was not violated. The court noted that much of the time between the defendant’s arrest at 9:30 a.m. and his being taken before a magistrate at 8:00 p.m. was spent interrogating the defendant about several crimes. The court stated that officers had the right to conduct these interrogations and that they did not cause an unnecessary delay by doing so. (3) The officers failed to advise the defendant of his right to communicate with friends in violation of G.S. 15A-501(5). The court ruled that, based on State v. Curmon, 295 N.C. 453 (1978), the defendant was not prejudiced by this violation based on the facts in this case.
State v. Simpson, 320 N.C. 313 (1987). A magistrate’s failure to set bail, assuming it was an error under G.S. 15A-511(e), did not render inadmissible at trial a voluntary confession obtained later. The assumed violation of G.S. Chapter 15A was not a “substantial violation” under G.S. 15A-974(2) (now, G.S. 15A-974(a)(2)). [Author’s note: Legislation enacted in 2011 (S.L. 2011-6) added a good-faith exception to the application of G.S. 15A-974.] The court also ruled that an otherwise voluntary confession was not to be suppressed as the fruit of an unreasonable seizure under the Fourth Amendment when the defendant had been arrested under a proper warrant but was temporarily denied the opportunity to post reasonable bail by a magistrate’s good-faith misinterpretation of law.
State v. Richardson, 295 N.C. 309 (1978). The court assumed without deciding that (1) the four-and-one-half-hour delay between the defendant’s arrest and his being taken before a magistrate was a violation of G.S. 15A-501(2), and (2) officers’ failure to comply with this statute was a “substantial violation.” The court then ruled that the defendant’s confession—obtained during the interval between his arrest and his appearance before a magistrate—was not obtained “as a result of” the alleged substantial violation, as is necessary to invoke G.S. 15A-974(2) (now, G.S. 15A-974(a)(2)). The statutory exclusionary rule requires, at a minimum, a causal connection between the violation and the resulting evidence. After reviewing the evidence, the court concluded that the defendant’s confession was not causally related to the delay in bringing him before a magistrate. [Author’s note: Legislation enacted in 2011 (S.L. 2011-6) added a good-faith exception to the application of G.S. 15A-974.] See also State v. Hunter, 305 N.C. 106 (1982) (similar ruling).
NORTH CAROLINA COURT OF APPEALS
State v. Caudill, 227 N.C. App. 119 (2013). The trial court did not err by denying the defendant’s motion to suppress statements to officers on grounds that they were obtained in violation of G.S. 15A-501(2) (arrested person must be taken before a judicial official without unnecessary delay). After a consensual search of his residence produced controlled substances, the defendant and three colleagues were arrested for drug possession. The defendant, who previously had waived his Miranda rights, was checked into the county jail at 11:12 a.m. After again being informed of his rights, the defendant was interviewed from 1:59 p.m. to 2:53 p.m. and made incriminating statements about a murder. After the interview, the defendant was taken before a magistrate and charged with drug offenses and murder. The defendant argued that the delay between his arrival at the jail and his initial appearance required suppression of his statements regarding the murder. The court noted that under G.S. 15A-974(2), evidence obtained as a result of a substantial violation of Chapter 15A must be suppressed upon timely motion; the statutory term “result” indicates that a causal relationship between a violation of the statute and the acquisition of the evidence to be suppressed must exist. The court concluded that the delay in this case was not unnecessary and there was no causal relationship between the delay and the defendant’s incriminating statements made during his interview. The court rejected the defendant’s constitutional arguments asserted on similar grounds.
State v. Jones, 112 N.C. App. 337 (1993). The trial judge ruled that officers violated G.S. 15A-501(2) (taking a defendant to a magistrate without unnecessary delay) and 15A-501(5) (advising a defendant without unnecessary delay of right to communicate with counsel and friends) but that these violations had not proximately caused the defendant’s incriminating statements. The court affirmed the trial judge’s ruling, citing State v. Richardson, 295 N.C. 309 (1978), and noted that the defendant did not argue a causal connection before the trial judge.
Voluntariness of a Witness’s Statement
NORTH CAROLINA SUPREME COURT
State v. Montgomery, 291 N.C. 235 (1976). A defendant’s due process rights are not violated if a witness’s statement, allegedly obtained by an officer’s coercive tactics, is introduced at trial, provided the jury is informed of the facts surrounding the statement. See also State v. Williams, 304 N.C. 3947 (1981).
Defendant’s Trial Testimony Allegedly Induced by Introduction of Illegally Obtained Statement
NORTH CAROLINA SUPREME COURT
State v. Hunt, 339 N.C. 622 (1995). The introduction at the defendant’s second trial of his testimony at his first trial did not violate the defendant’s Fifth Amendment rights under Harrison v. United States, 392 U.S. 219 (1968). The defendant was not compelled to testify at his first trial by the admission of unconstitutionally obtained evidence. See also State v. McNeill, 140 N.C. App. 450 (2000) (defendant’s testimony at accomplice’s trial was freely and voluntarily given, and defendant’s Fifth Amendment privilege against self-incrimination did not apply to that testimony; thus, trial judge did not err in admitting testimony at defendant’s trial).
NORTH CAROLINA COURT OF APPEALS
State v. Easterling, 119 N.C. App. 22 (1995). [Author’s note: The defendant was tried and convicted of multiple counts of rape and sexual offense that he committed with his accomplice, Sherman White.] After a detective gave the defendant his Miranda warnings, the defendant asserted his right to counsel. The detective later informed the defendant that he would be taken to the magistrate’s office to be served with arrest warrants. The detective then said, “Who was Sherman?” The defendant said, “White.” Just a few moments later, the defendant indicated that he wanted to talk about the case. The detective then gave him Miranda warnings and obtained a waiver, and the defendant gave an incriminating statement that was introduced in the State’s case in chief at trial.
The court ruled that the detective’s question constituted interrogation: it was designed to elicit an incriminating response and therefore was improper under Edwards v. Arizona, 384 U.S. 436 (1981), because it was made after the defendant’s assertion of his right to counsel. In addition, the defendant’s statement a few moments later that he was willing to talk about the case was a continuation of the improper interrogation (that is, it was not simply the defendant’s initiation of communication with the detective). Thus, the trial judge erred in admitting the defendant’s confession at trial. The court also ruled that, based on the State’s overwhelming evidence against the defendant in this case, the defendant was not induced to testify in his behalf because of the introduction in the State’s case in chief of this illegally obtained confession; see generally Harrison v. United States, 392 U.S. 219 (1968). The court also ruled that the introduction of the confession was harmless error beyond a reasonable doubt.
Scope of Fifth Amendment Privilege of a Defendant or Witness at Trial
United States Supreme Court
Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004). A caller to a sheriff’s department reported seeing a man assault a woman in a truck on a certain road. When an officer arrived at the location described by the caller, he found a truck parked on the side of the road, the defendant standing by the truck, and a young woman sitting inside. The defendant was then stopped by the officer based on reasonable suspicion that the defendant had committed the assault. The officer asked the defendant for identification, explaining that he wanted to determine who he was and what he was doing there. The defendant refused to provide identification. The defendant was convicted of willfully obstructing and delaying the officer in attempting to discharge a legal duty based on a Nevada statute that requires a person subject to an investigative stop to disclose his or her name.
(1) The Court ruled that the officer’s request for the defendant’s name was reasonably related in scope to the circumstances that justified the stop and did not violate the Fourth Amendment. (2) The Court ruled that the defendant’s conviction did not violate his Fifth Amendment privilege against compelled self-incrimination because in this case the defendant’s refusal to disclose his name was not based on any articulated real and appreciable fear that his name would be used to incriminate him or that it would furnish a link in the chain of evidence needed to prosecute him. The Court noted that a case may arise in which there is a substantial allegation that furnishing identity at the time of an investigative stop would have given an officer a link in the chain of evidence needed to convict the defendant of a separate offense. In such a case, a court can then consider whether the Fifth Amendment privilege applies, and, if the privilege has been violated, what remedy must follow. But those questions did not need to be resolved in the case before the Court.
[Author’s note: The ruling in this case that the Nevada law was constitutional does not resolve the issue of whether it is a violation of North Carolina law when a person refuses to give his or her name during an investigative stop. That is a matter for North Carolina state courts to decide. Unlike under Nevada law, there is no North Carolina statute that requires a person who is the subject of an investigative stop based on reasonable suspicion to disclose his or her name. (There is a limited provision in G.S. 20-29 that makes it a Class 2 misdemeanor for a person operating a motor vehicle, when requested by a uniformed officer, to refuse to write his or her name for identification or give his or her name.) Without such a statute, it does not appear that a person’s mere refusal to disclose his or her name is sufficient evidence by itself to arrest or convict the person of violating G.S. 14-223 (resisting, delaying, or obstructing a public officer in discharging or attempting to discharge a duty of office) absent a showing of how the mere refusal to disclose resisted, delayed, or obstructed the officer in that particular investigative stop. Although a mere refusal may be insufficient to arrest a person for violating G.S. 14-223, the refusal under certain circumstances may allow an officer additional time to detain the person to determine whether a crime was committed.]
Chavez v. Martinez, 538 U.S. 760 (2003). While the plaintiff was being treated for a gunshot wound received during an altercation with law enforcement officers, an officer—without giving Miranda warnings—conducted an allegedly coercive interrogation of the plaintiff. The plaintiff was never charged with a criminal offense, and thus his answers during the interrogation were never used against him in a criminal trial. The plaintiff sued the interrogating officer for violating his constitutional rights.
(1) The Court ruled (representing a majority of the Justices in several opinions) that the officer’s alleged coercive questioning of the plaintiff did not violate the Self-Incrimination Clause of the Fifth Amendment when the compelled statements were not introduced against the plaintiff at a criminal trial. (2) The Court remanded to the federal court of appeals the issue of whether the plaintiff could pursue a claim of liability against the officer for a substantive due process violation based on the alleged coercive questioning.
McKune v. Lile, 536 U.S. 24 (2002). A four-Justice plurality ruled that a prison’s sexual-abuse treatment program and consequences for nonparticipation in the program did not violate a prisoner’s Fifth Amendment privilege against compelled self-incrimination. Inmates participating in the program were required to admit responsibility for the crime(s) for which they were convicted and admit to any other sexual crimes they had committed, without receiving any immunity from prosecution. In addition, a refusal to participate in the program resulted in the loss of specified prison privileges. A fifth Justice agreed that the prisoner’s Fifth Amendment privilege was not violated but did not agree with the plurality’s reasoning.
Ohio v. Reiner, 532 U.S. 17 (2001). The Court ruled, based on the facts in this case, that a witness who denied culpability in a child’s death validly asserted the privilege against self-incrimination when she feared that answers to questions might tend to incriminate her.
United States v. Hubbell, 530 U.S. 27 (2000). The government served the defendant with a grand jury subpoena requiring the defendant to produce financial and other documents containing potentially incriminating evidence. The defendant refused to produce the documents, asserting his Fifth Amendment privilege against compelled self-incrimination. The government then granted the defendant use immunity under federal law that protects the use or derivative use of the testimonial act of producing the documents. The government later indicted the defendant after he had produced the documents.
The Court, relying on principles set out in United States v. Doe, 465 U.S. 605 (1984), and distinguishing Fisher v. United States, 425 U.S. 391 (1976), ruled that the government’s use of the subpoenaed documents at trial would violate the defendant’s Fifth Amendment privilege because the documents the government would offer against the defendant at trial derived either directly or indirectly from the testimonial aspects of the defendant’s immunized act of producing the documents. In this case, the government had no prior knowledge of either the existence or the whereabouts of the documents produced by the defendant.
United States v. Balsys, 524 U.S. 666 (1998). The Fifth Amendment privilege against self-incrimination may not be used because of a fear of prosecution in a foreign country.
Ohio Adult Parole Authority v. Woodard, 523 U.S. 272 (1998). Giving an inmate the option of voluntarily participating in an interview as part of a clemency process does not violate the inmate’s Fifth Amendment rights.
Doe v. United States, 487 U.S. 201 (1988). A federal district court order required the defendant to execute a consent directive authorizing foreign banks to disclose records of any accounts over which the defendant had a right of withdrawal without identifying or acknowledging the existence of any account. The Court ruled that the consent directive did not violate the defendant’s Fifth Amendment rights because it was not testimonial. A defendant’s oral or written communication or act is “testimonial” when it explicitly or implicitly relates a factual assertion or discloses information. The consent directive in this case did not involve the defendant’s revealing that an account existed or that, if there was an account in a certain bank, records were there, and the execution of the defendant’s consent directive would reveal only the bank’s implicit declaration, by its act of producing records, that it believed that the account was the defendant’s account.
Braswell v. United States, 487 U.S. 99 (1988). (1) A custodian of corporate records may not resist a subpoena for records on the ground that the act of production will incriminate the custodian. However, the government may not make evidentiary use of the “individual act” of production against the individual. (2) A corporation does not have a Fifth Amendment privilege against self-incrimination. See also United States v. Wujkowski, 929 F.2d 981 (4th Cir. 1991); In re Grand Jury Witnesses, 92 F.3d 710 (8th Cir. 1996).
Andresen v. Maryland, 427 U.S. 463 (1976). The execution of a search warrant of the defendant’s office for business records did not violate his Fifth Amendment rights because he was not required to aid in the discovery, production, or authentication of the evidence that was seized. See also State v. Downing, 31 N.C. App. 743 (1976). [Author’s note: For a discussion of the Fifth Amendment issues involved when the State issues a subpoena for records, see Doe v. United States, 487 U.S. 201 (1988), discussed above in this section, and Fisher v. United States, 425 U.S. 391 (1976). For a discussion of a related issue, involving whether a mother-custodian of a child may assert her Fifth Amendment privilege to resist a court order to produce the child, see Baltimore City Department of Social Services v. Bouknight, 493 U.S. 549 (1990).]
North Carolina Supreme Court
State v. Diaz, 372 N.C. 493 (2019). The state supreme court ruled that the trial judge erred by admitting the defendant’s affidavit of indigency into evidence to show his age, which was an element of the charged crimes in this abduction of a child and statutory rape case. The trial judge had ruled that the affidavit of indigency was admissible under Rule 902 of the N.C. Rules of Evidence as a self-authenticating document, but the supreme court concluded that allowing the document into evidence impermissibly compelled the defendant to surrender one constitutional right—his Fifth Amendment right against self-incrimination—in order to complete the paperwork required for him to assert his Sixth Amendment right to the assistance of counsel as an indigent defendant. However, the court also ruled that, based on the facts in this case, the trial judge’s error was harmless beyond a reasonable doubt.
Herndon v. Herndon, 368 N.C. 826 (2016). The court ruled that the trial court did not violate a civil defendant’s Fifth Amendment rights in a hearing concerning a civil domestic violence protective order. During the defendant’s case in chief but before the defendant took the stand, the trial court asked defense counsel whether the defendant intended to invoke the Fifth Amendment, to which counsel twice responded in the negative.
While the defendant was on the stand, the trial court posed questions to her. The court noted that never during direct examination nor during the trial court’s questioning did the defendant, a voluntary witness, give any indication that answering any question posed to her would tend to incriminate her. “Put simply,” the court stated, the “defendant never attempted to invoke the privilege against self-incrimination.” The court continued: “We are not aware of, and the parties do not cite to, any case holding that a trial court infringes upon a witness’s Fifth Amendment rights when the witness does not invoke the privilege.” Id. at 832. The court further noted that in questioning the defendant, the trial court inquired into matters within the scope of issues that were put into dispute on direct examination by the defendant. Therefore, even if the defendant had attempted to invoke the Fifth Amendment, the privilege was unavailable during the trial court’s inquiry.
State v. Pickens, 346 N.C. 628 (1997). The court ruled that because there was an asserted fear of future prosecution for other crimes, a witness’s plea of guilty did not act as a complete waiver of his privilege against self-incrimination. The court also ruled that the trial court did not abuse its discretion by not requiring a proposed witness to assert his Fifth Amendment privilege in the presence of the jury; the court distinguished State v. Thompson, 332 N.C. 204 (1992) (trial court did not err in allowing prosecutor to call witness to stand knowing witness would assert Fifth Amendment privilege). See also State v. Harris, 139 N.C. App. 153 (2000) (defendant failed to properly support his claim that he should have been allowed to compel his co-defendants to take witness stand and assert their Fifth Amendment privileges before jury).
State v. Hunt, 339 N.C. 622 (1995). The introduction at the defendant’s second trial of his testimony at his first trial did not violate the defendant’s Fifth Amendment rights under Harrison v. United States, 392 U.S. 219 (1968). The defendant was not compelled to testify at his first trial by the admission of unconstitutionally obtained evidence. See also State v. McNeill, 140 N.C. App. 450 (2000) (defendant’s testimony at accomplice’s trial was freely and voluntarily given, and defendant’s Fifth Amendment privilege against self-incrimination did not apply to that testimony; thus, trial judge did not err in admitting testimony at defendant’s trial).
State v. Ray, 336 N.C. 463 (1994). The defendant was convicted of first-degree murder that was drug related. During direct examination of a State’s witness—an eyewitness to the murder—the State asked the witness about his and the murder victim’s involvement with drug dealing. On cross-examination, the witness refused to answer some questions about drug dealing, asserting his Fifth Amendment privilege against compelled self-incrimination. The trial judge found that some of the answers to the cross-examination questions could be incriminating and that the witness had a right to refuse to answer those questions. After the witness had completed his testimony, the defendant requested that the trial judge either direct the witness to answer the questions to which he had invoked the privilege or strike the witness’s entire testimony.
The court noted that the issue of whether the witness was properly allowed to assert the privilege was not raised on appeal. However, the court ruled that the defendant’s right to confront witnesses through cross-examination was unreasonably limited by the witness’s assertion of the testimonial privilege. The court discussed several cases, particularly United States v. Cardillo, 316 F.2d 606 (2d Cir. 1963), and noted that courts have distinguished between the assertion of the privilege preventing inquiry into matters about which the witness testified on direct examination (in which case the defendant’s motion to strike the testimony should be granted) and the assertion of the privilege preventing inquiry into collateral matters, such as the credibility of the witness (in which case the defendant’s motion to strike the testimony should be denied). The court examined the facts in this case and ruled that the trial judge erred in not striking the testimony of the witness, because the prohibited inquiry on cross-examination involved matters discussed on direct examination—drug dealing that was the basis of the relationship between the victim, the defendant, and the witness.
Debnam v. Department of Correction, 334 N.C. 380 (1993). The court ruled that the State did not violate a public employee’s Fifth Amendment right against compelled self-incrimination by firing the employee for refusing to answer questions relating to his employment—in this case, questions about an incident involving a ring allegedly stolen from an inmate. The employee was informed that his failure to answer might result in his dismissal, and the State did not seek the employee’s waiver of his immunity from the State’s use of any of his answers in a criminal action against him. The court rejected the employee’s argument that the Fifth Amendment prohibited the State from firing him for refusing to answer questions during its internal investigation because he was not advised that his responses could not be used against him in any criminal prosecution and that the questions would relate specifically and narrowly to his performance of official duties.
In re Estate of Trogdon, 330 N.C. 143 (1991). The finder of fact in a civil case may use a witness’s invocation of the Fifth Amendment privilege against self-incrimination to infer that the witness’s truthful testimony would have been unfavorable to the witness.
State v. Eason, 328 N.C. 409 (1991). A witness properly was permitted to invoke her Fifth Amendment privilege to refuse to answer questions when the questions related to a criminal case pending in superior court.
State v. Perry, 291 N.C. 284 (1976). The defendant’s Fifth Amendment rights were not violated when he was required to put on, before the jury, an orange stocking mask found at the scene of the armed robbery with which he was charged. See also State v. Suddreth, 105 N.C. App. 122 (1992) (similar ruling; mask worn during sexual assault); State v. Summers, 105 N.C. App. 420 (1992) (similar ruling; defendant displaying his teeth—victim had described assailant as a man with missing teeth).
North Carolina Court of Appeals
Lovendahl v. Wicker, 208 N.C. App. 193 (2010). The civil defendant was being sued for negligence in the operation of a vehicle that resulted in the death of a passenger. The defendant asserted affirmative defenses of contributory negligence and gross contributory negligence. The defendant was also awaiting trial for second-degree murder and other offenses arising from the operation of the vehicle. The defendant asserted his Fifth Amendment privilege and refused to answer questions about the accident in a deposition in the civil case. The court ruled that the trial court did not abuse its discretion in striking the defendant’s affirmative defenses based on his refusal to testify at the deposition.
Roadway Express, Inc. v. Hayes, 178 N.C. App. 165 (2006). The plaintiffs sued the defendant for a vehicular accident in which a death resulted. The plaintiffs alleged that the defendant was impaired when the accident occurred. The court ruled, relying on Schmerber v. California, 384 U.S. 757 (1966), that the Fifth Amendment privilege against self-incrimination did not protect the production in discovery of the defendant’s medical records that contained blood-test results concerning impairing substances. The court ruled, however, that the privilege protected the defendant from having to answer interrogatories and requests for admissions about alcohol and medications that the defendant may have taken before the accident. (There was a pending criminal prosecution of the defendant.) The court noted that the defendant’s assertion of the privilege could bar the defendant’s assertion of his affirmative defense of sudden emergency.
In re Lineberry, 154 N.C. App. 246 (2002). The court ruled that the trial judge erred in finding that the juvenile’s refusal during court-ordered therapeutic treatment to admit to the offenses for which he had been adjudicated delinquent was a factor justifying his continued custody pending his appeal to the court of appeals. The court ruled that the trial judge violated the juvenile’s Fifth Amendment privilege against compelled self-incrimination in relying on this factor.
Davis v. Town of Stallings Board of Adjustment, 141 N.C. App. 489 (2000). The Town of Stallings Board of Adjustment held a hearing to determine whether petitioner Davis was operating an unauthorized adult establishment. At the hearing, both Davis and his wife invoked their Fifth Amendment privilege against self-incrimination and refused to testify. The court ruled, relying on Gray v. Hoover, 94 N.C. App. 724 (1989), and other cases, that the Board of Adjustment properly could use the couple’s assertions of the privilege to infer that Davis was running an unauthorized adult establishment.
Sugg v. Field, 139 N.C. App. 160 (2000). The plaintiff brought a civil action against the defendants for various torts. During the defendants’ deposition of the plaintiff, the plaintiff asserted the Fifth Amendment and refused to answer questions on matters that were relevant and material to his claims. The trial judge ruled that the plaintiff’s refusal to provide the information was prejudicial to the rights of the defendants and their ability to defend themselves, and the judge dismissed the civil action. The court ruled, relying on Qurneh v. Colie, 122 N.C. App. 553 (1996), that the judge did not err in dismissing the civil action.
McKillop v. Onslow County, 139 N.C. App. 53 (2000). McKillop was ordered to comply with a county ordinance regulating adult sexually oriented businesses. A show-cause hearing was later held to determine whether she should be held in civil contempt. After the county presented evidence, McKillop refused to present evidence on her behalf on the Fifth Amendment ground that she might incriminate herself in a pending criminal case. The court ruled, relying on Cantwell v. Cantwell, 109 N.C. App. 395 (1993), and Gray v. Hoover, 94 N.C. App. 724 (1989), that the defendant’s assertion of the Fifth Amendment was an abandonment of her defense to the contempt charge.
State v. Linney, 138 N.C. App. 169 (2000). The defendant, an attorney, was convicted of two counts of embezzlement and two counts of perjury involving his role as a guardian of the person and estate of Georgiana Alexander. Before the State prosecuted the defendant, the North Carolina State Bar had investigated the defendant for possible disbarment. The State during the criminal trial used statements that the defendant had made to a state bar investigator.
The court ruled, distinguishing Garrity v. New Jersey, 385 U.S. 493 (1967), that the defendant’s Fifth Amendment rights were not violated by the admission of these statements. The defendant was not compelled by threat of disbarment if he failed to give any statements. He could have asserted his Fifth Amendment privilege and not spoken to the investigator, but he voluntarily chose not to assert the privilege. The State during the criminal trial used bank records that the defendant had provided to a state bar investigator. The court ruled, citing Shapiro v. United States, 335 U.S. 1 (1948), and other cases, that even if the defendant had asserted his Fifth Amendment privilege during bar proceedings, the privilege would not have protected these records. The Fifth Amendment does not apply to the production of records that an attorney is required by law to maintain.
Staton v. Brame, 136 N.C. App. 170 (1999). Brame allegedly mishandled and misappropriated funds belonging to others. In 1996, he was civilly sued for recovery of these funds in state court. The Internal Revenue Service later informed him that he was the target of an ongoing criminal investigation concerning these funds. On March 27, 1997, Brame asserted his Fifth Amendment privilege not to testify at a deposition in the civil lawsuit. On August 1, 1997, Brame answered questions about these matters in a deposition conducted as part of a pending bankruptcy action (he and his former wife had filed petitions for bankruptcy, and the deposition was given in an equitable distribution action that had been removed to federal bankruptcy court). After learning of the August 1, 1997, deposition, the plaintiffs in the civil lawsuit moved to compel Brame’s deposition testimony. The court ruled, relying on State v. Pearsall, 38 N.C. App. 600 (1978), and State v. Hart, 66 N.C. App. 702 (1984), that the defendant had not waived the right to assert his Fifth Amendment privilege by testifying in bankruptcy court. The bankruptcy proceeding and the civil lawsuit were separate proceedings.
State v. Teague, 134 N.C. App. 702 (1999). The court ruled, relying on State v. McNeil, 99 N.C. App. 235 (1990), that the trial judge did not err in admitting evidence at trial of the defendant’s refusal to provide handwriting samples pursuant to a search warrant. The admission of this evidence was relevant to the trial and did not violate the defendant’s Fifth Amendment rights.
Qurneh v. Colie, 122 N.C. App. 553 (1996). The plaintiff (natural father) filed a civil lawsuit against the defendant (natural mother) seeking custody of his child. The defendant and intervenors (the child’s maternal grandparents) alleged that the plaintiff was unfit to have custody. When the plaintiff was cross-examined about his alleged illegal drug use, he asserted his Fifth Amendment privilege against compelled self-incrimination. The court ruled that when the plaintiff failed to make a prima facie showing that he was fit to have custody and the trial judge could not determine the plaintiff’s fitness because he had asserted his Fifth Amendment privilege, the trial judge properly dismissed the plaintiff’s claim for custody and awarded custody to the intervenors. The court noted a similar ruling in Cantwell v. Cantwell, 109 N.C. App. 395 (1993).
State v. Locklear, 117 N.C. App. 255 (1994). During the defendant’s trial for robbery and being a habitual felon, the trial judge ordered the defendant to speak the exact words used by the robber so that a State’s witness could attempt to make a voice identification. The court ruled, relying on State v. Perry, 291 N.C. 284 (1976), and other cases, that the defendant’s Fifth Amendment privilege against compelled self-incrimination was not violated by the judge’s order. See also State v. Thompson, 129 N.C. App. 13 (1998) (similar ruling).
In re Jones, 116 N.C. App. 695 (1994). Jones, who had a pending murder charge against him, was called as a defense witness in a related murder trial of another person. Jones refused, by asserting his Fifth Amendment privilege against compelled self-incrimination, to answer two questions asked by the prosecutor on cross-examination. The trial judge held Jones in contempt of court for refusing to answer the questions.
The court reversed. One question—whether the defendant owed money for drugs to some specified people—was a matter that the State was seeking to prove at Jones’s upcoming murder trial. Thus, the answer to this question could incriminate Jones. The other question—whether Jones had a reputation for robbing drug dealers—could be used to undermine Jones’s credibility if charged with a crime in the future. Thus, the court stated that it was possible that the answer to this question could also incriminate Jones.
Leonard v. Williams, 100 N.C. App. 512 (1990). A witness may not invoke the Fifth Amendment privilege against self-incrimination if a prosecution for the criminal offense is barred by the statute of limitations.
Federal Appellate Courts
Barrett v. Acevedo, 169 F.3d 1155 (8th Cir. 1999). The Fifth Amendment does not protect the contents of a personal diary because a person has voluntarily created the diary. Thus, the diary in this case was admissible at trial.
Johnson v. Baker, 108 F.3d 10 (2d Cir. 1997). A state prison did not violate a convicted sex offender’s Fifth Amendment privilege against self-incrimination by requiring him to admit to his alleged sex offenses as a condition of entry into the prison’s sex offender program, admission to which was itself required for entry into a family reunion program. The State did not seek a court order compelling answers to its questions about the alleged offenses, require waiver of immunity, or insist that answers be used in a criminal proceeding. The inmate’s unwillingness to admit to the offenses rendered him unlikely to benefit from the rehabilitative process. See also Asherman v. Meachum, 957 F.2d 978 (2d Cir. 1992).
Harvey v. Shillinger, 76 F.3d 1528 (10th Cir. 1996). A defendant’s statement that he voluntarily made at the sentencing hearing of his first trial was properly admitted at his second trial without violating his Fifth Amendment rights.
Admissibility of Written Confession
NORTH CAROLINA SUPREME COURT
State v. Wagner, 343 N.C. 250 (1996). The State sought to introduce a detective’s handwritten notes of the defendant’s confession during an interview. The notes were not read to the defendant and were not signed by him or otherwise admitted to be correct. The court ruled that State v. Walker, 269 N.C. 135 (1967) (setting out the rules for the admission of a written confession), does not bar the admissibility of an unsigned statement taken in longhand of a defendant’s actual responses to recorded questions. The court noted that the evidence showed that the notes were an exact word-for-word rendition of the interview of the defendant.
NORTH CAROLINA COURT OF APPEALS
State v. Spencer, 192 N.C. App. 143 (2008). The court ruled, relying on State v. Walker, 269 N.C. 135 (1967), and State v. Bartlett, 121 N.C. App. 521 (1996), that the admission of the defendant’s confession by reading it to the jury from an officer’s handwritten notes was error because the officer did not have the defendant review and confirm the notes as an accurate representation of the defendant’s answers, nor were the notes a verbatim account of the defendant’s confession.
State v. Bartlett, 121 N.C. App. 521 (1996). While the defendant spoke to law enforcement officers, one of the officers attempted to write down the defendant’s answers to the questions asked by another officer. The officer’s questions were not written down. When the paper writing was given to the defendant, he refused to sign it. The court ruled that the trial judge erroneously permitted the State to introduce the paper writing into evidence. The court noted the general rule that a defendant’s written statement may not be introduced into evidence unless (1) it was read to or by the defendant and the defendant signed or otherwise admitted to its being correct or (2) it was a verbatim record of the questions asked and answers given by the defendant. In this case, the officer did not write down the questions asked and never testified that the answers given by the defendant were correctly reflected in the paper writing. In addition, there was no evidence that the defendant acquiesced in the correctness of the paper writing. [Author’s note: This ruling applies only to the admissibility of the paper writing, not to the admissibility of oral testimony of the conversation between the officers and the defendant.]
Foreign National’s Notification under Vienna Convention and Admissibility of Defendant’s Statements
(This topic is discussed under “Informing a Foreign National of the Right to Have Consular Official Notified” in Chapter 2.)
UNITED STATES SUPREME COURT
Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006). The Court ruled, assuming without deciding that the Vienna Convention on Consular Relations (an international treaty requiring law enforcement to inform an arrested foreign national of the right to consular notification) creates judicially enforceable rights, that (1) suppression of a defendant’s statements to law enforcement is not a remedy for a violation of the treaty and (2) a state may subject claims of treaty violations to the same procedural default rules that apply generally to other federal law claims.
NORTH CAROLINA COURT OF APPEALS
State v. Herrera, 195 N.C. App. 181 (2009). The court ruled, relying on Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006), that a violation of the Vienna Convention on Consular Relations (requiring notification to an arrested foreign national of the right to have consul of the foreign national’s country notified of the arrest) does not provide the remedy of suppression of a confession.
Motions to Suppress and Suppression Hearings
(See also pertinent cases under “Part IV. Suppression Motions and Hearings; Exclusionary Rules” in the appendix to Chapter 4.)
NORTH CAROLINA SUPREME COURT
State v. Williams, 308 N.C. 47 (1983). A defendant may not raise on appeal a ground attacking a confession that the defendant did not properly raise at the trial level. See also State v. Jenkins, 311 N.C. 194 (1984); State v. Hunter, 305 N.C. 106 (1982).
State v. Barnett, 307 N.C. 608 (1983). A trial judge decides whether a confession was voluntary. This issue is not submitted to the jury. However, a defendant is entitled to present evidence to the jury about how the confession was taken so that the defendant may challenge its reliability and credibility. See Crane v. Kentucky, 476 U.S. 683 (1986).
State v. Johnson, 304 N.C. 680 (1982). The State must prove voluntariness of a confession by a preponderance of the evidence.
State v. Bracey, 303 N.C. 112 (1981). The State may impeach a defendant with the defendant’s testimony at a suppression hearing if the defendant testifies at trial.
NORTH CAROLINA COURT OF APPEALS
State v. Weakley, 176 N.C. App. 642 (2006). The defendant argued on appeal that the State was improperly permitted to cross-examine a defense witness concerning her failure to give a statement to a law enforcement officer because the cross-examination violated the witness’s Fifth Amendment rights. The court ruled, relying on State v. Lipford, 81 N.C. App. 464 (1986), and other cases, that the defendant had no standing to assert the witness’s constitutional right against self-incrimination.
State v. Graves, 135 N.C. App. 216 (1999). The court noted that statements obtained as a result of an illegal search must be suppressed. However, the officer in this case obtained statements from the defendant without mentioning the illegal drugs and drug paraphernalia that were discovered pursuant to an illegal search. Thus, only those statements made by the defendant after the officer told the defendant about what he had discovered had to be suppressed.
State v. Lipford, 81 N.C. App. 464 (1986). The defendant had no standing to contest the admission at trial of a co-defendant’s statement on the ground that it had been obtained in violation of the co-defendant’s Fifth Amendment rights.
Part II. Lineups and Other Identification Procedures
The Sixth Amendment Right to Counsel at Identification Procedures
(This topic is discussed in the chapter text under “Sixth Amendment Right to Presence of Counsel at Lineups or Showups.”)
Nature of the Identification Procedure
In-Person Lineup or Showup
UNITED STATES SUPREME COURT
Kirby v. Illinois, 406 U.S. 682 (1972). A defendant who appears in a lineup or showup has a Sixth Amendment right to counsel, but the right attaches only at or after the beginning of adversary judicial proceedings against the defendant. The defendant’s right to counsel had not attached in this case when a showup identification occurred after the defendant’s arrest but before indictment, the probable cause hearing, or the beginning of any other adversary judicial proceeding. See also United States v. Gouveia, 467 U.S. 180 (1984) (Court majority recognized Kirby, which was plurality opinion, as prevailing law); Moore v. Illinois, 434 U.S. 220 (1977) (defendant’s Sixth Amendment right to counsel had attached at in-court showup at preliminary hearing) [Author’s note: The preliminary hearing was equivalent to a North Carolina probable cause hearing.]; United States v. Wade, 388 U.S. 218 (1967) (defendant had Sixth Amendment right to counsel at post-indictment lineup); Gilbert v. California, 388 U.S. 263 (1967) (same). For a discussion of when the Sixth Amendment right to counsel attaches in North Carolina, see “Sixth Amendment Right to Presence of Counsel at Lineups or Showups” in the text of this chapter.
FEDERAL APPELLATE COURTS
United States v. Jones, 907 F.2d 456 (4th Cir. 1990). A lawyer for a defendant who was appearing in a lineup did not have a right to be present in the witness’s viewing room to monitor the remarks of law enforcement officers who were conducting the lineup.
Photographic Lineup
UNITED STATES SUPREME COURT
United States v. Ash, 413 U.S. 300 (1973). A defendant has no Sixth Amendment right to counsel when an officer conducts a photographic identification procedure in which witnesses attempt to identify an offender, regardless of whether the photographic lineup occurs before or after an indictment. See also State v. Miller, 288 N.C. 582 (1975).
When the Right to Counsel Attaches
UNITED STATES SUPREME COURT
Kirby v. Illinois, 406 U.S. 682 (1972). A defendant who appears in a lineup or showup has a Sixth Amendment right to counsel, but the right attaches only at or after the beginning of adversary judicial proceedings against the defendant. The defendant’s right to counsel had not attached in this case when a showup identification occurred after the defendant’s arrest but before indictment, probable cause hearing, or the beginning of any other adversary judicial proceeding. See also United States v. Gouveia, 467 U.S. 180 (1984) (Court majority recognized Kirby, which was plurality opinion, as prevailing law); Moore v. Illinois, 434 U.S. 220 (1977) (defendant’s Sixth Amendment right to counsel had attached at in-court showup at preliminary hearing) [Author’s note: The preliminary hearing was equivalent to a North Carolina probable cause hearing.]; United States v. Wade, 388 U.S. 218 (1967) (defendant had Sixth Amendment right to counsel at post-indictment lineup); Gilbert v. California, 388 U.S. 263 (1967) (same). For a discussion of when the Sixth Amendment right to counsel attaches in North Carolina, see “Sixth Amendment Right to Presence of Counsel at Lineups or Showups” in the text of this chapter.
NORTH CAROLINA SUPREME COURT
State v. Leggett, 305 N.C. 213 (1982). The point at which a defendant’s Sixth Amendment right to counsel attaches must be determined for each criminal charge. The mere fact that the defendant here was in custody for an unrelated charge did not constitute the initiation of adversary judicial proceedings sufficient to provide a Sixth Amendment right to counsel.
FEDERAL APPELLATE COURTS
Thompson v. Mississippi, 914 F.2d 736 (5th Cir. 1990). A robbery victim’s encounter with the defendant in a jail facility did not violate the defendant’s Sixth Amendment right to counsel because the victim’s presence was not authorized, arranged, or requested by law enforcement officers (that is, there was no state action).
The Exclusionary Rule When the Right to Counsel Is Violated
UNITED STATES SUPREME COURT
United States v. Wade, 388 U.S. 218 (1967). When a defendant’s Sixth Amendment right to counsel is violated at a lineup, evidence resulting from the lineup is automatically inadmissible in court, and a witness’s in-court identification of the defendant is also inadmissible unless the State proves by clear and convincing evidence that the identification originated independent of the unconstitutional lineup. Various factors to consider in determining independent origin include prior opportunity to observe the offense, any discrepancy between any pre-lineup description and the defendant’s actual description, any identification of another person or of the defendant by a picture before the lineup takes place, failure to identify the defendant on a prior occasion, the time elapsed between the offense and the lineup identification, and facts concerning the conduct of the illegal lineup. See also Gilbert v. California, 388 U.S. 263 (1967).
Due Process Review of Identification Procedures
(This topic is discussed in the chapter text under “Nonsuggestiveness of the Identification Procedure under Due Process Clause.”)
Generally
United States Supreme Court
Perry v. New Hampshire, 565 U.S. 228 (2012). The Court ruled that the Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement. New Hampshire police received a call reporting that an African-American male was trying to break into cars parked in the lot of the caller’s apartment building. When an officer responding to the call asked eyewitness Nubia Blandon to describe the man, Blandon, who was standing in her apartment building just outside the open door to her apartment, pointed to her kitchen window and said that the man she saw breaking into a car was standing in the parking lot, next to a police officer. The defendant, Perry, who was that person, was arrested. About a month later, when the police showed Blandon a photographic array that included a picture of Perry and asked her to point out the man who had broken into the car, she was unable to identify Perry. At trial, Perry unsuccessfully moved to suppress Blandon’s identification on the ground that admitting it would violate due process.
The Supreme Court began by noting that an identification infected by improper police influence is not automatically excluded. Instead, the Court explained, the trial judge at a pretrial proceeding must screen the evidence for reliability. If there is a very substantial likelihood of irreparable misidentification, the judge must exclude the evidence at trial. But, it continued, if the indicia of reliability are strong enough to outweigh the corrupting effect of the police-arranged suggestive circumstances, the identification evidence ordinarily will be admitted, and the jury will ultimately determine its worth. In this case, Perry asked the Court to extend pretrial screening for reliability to cases in which the suggestive circumstances were not arranged by law enforcement officers because of the grave risk that mistaken identification would yield a miscarriage of justice. The Court declined to do so, ruling: “When no improper law enforcement activity is involved . . . it suffices to test reliability through the rights and opportunities generally designed for that purpose, notably, the presence of counsel at postindictment lineups, vigorous cross-examination, protective rules of evidence, and jury instructions on both the fallibility of eyewitness identification and the requirement that guilt be proved beyond a reasonable doubt.” Id. at 233.
Neil v. Biggers, 409 U.S. 188 (1972). The due process test for determining whether an in-court identification is admissible at trial is whether an out-of-court identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. The due process test for determining whether evidence of the out-of-court identification procedure is admissible at trial is whether it was so impermissibly suggestive as to raise a very substantial likelihood of misidentification. [Author’s note: The test is the same as for the in-court identification except for the deletion of the word “irreparable.”]
The central issue in determining the admissibility of identification evidence is whether—considering the totality of circumstances—the identification was reliable even though the confrontation procedure was suggestive. The factors to consider in evaluating the likelihood of misidentification include (1) the witness’s opportunity to view the suspect when the offense was committed, (2) the witness’s degree of attention, (3) the witness’s degree of certainty at the identification procedure, (4) the accuracy of a prior description of the suspect, and (5) the length of time between the crime and the identification procedure. Applying these factors in this case, the Court analyzed the identification of the defendant by the victim at a police station showup conducted seven months after the crime and ruled that evidence of the showup and identification was admissible.
See also Manson v. Brathwaite, 432 U.S. 98 (1977) (Court reaffirmed tests set out in Biggers, rejected a per se exclusionary rule for impermissibly suggestive identification procedures, analyzed a one-photo identification procedure in this case, and found it admissible as evidence). [Author’s note: The Court appeared to use the word “irreparable” incorrectly when testing the admissibility of evidence of the out-of-court one-photo identification.] Other Supreme Court cases include Stovall v. Denno, 388 U.S. 293 (1967) (evidence of injured witness who identified defendant at hospital showup was admissible at trial); Simmons v. United States, 390 U.S. 377 (1968) (in-court identification of defendants was admissible at trial, although pretrial photo-identification procedure may have been suggestive); Coleman v. Alabama, 399 U.S. 1 (1970) (in-court identification did not result from allegedly improper lineup); Foster v. California, 394 U.S. 440 (1969) (use of suggestive three-man lineup, then one-man showup, and then five-man lineup in which defendant was the only one who had appeared in the first lineup violated due process).
North Carolina Supreme Court
State v. Malone, 373 N.C. 134 (2019). The court ruled that identifications by two eyewitnesses to a shooting committed by two suspects were tainted by a trial preparation meeting between the two eyewitnesses and a legal assistant from the district attorney’s office.
The eyewitnesses viewed photo lineups two days after the shooting. The two women identified one of the suspects, who was not the defendant. However, they were unable to identify the other suspect, the defendant, who was tried and convicted as the other person involved in the shooting. For three and a half years the eyewitnesses had no contact with the State until the legal assistant met them at the courthouse for trial preparation. The assistant showed the eyewitnesses the defendant’s recorded interview with officers and photos of the defendant. One of the women looked out the window and saw the defendant, in a jail uniform and handcuffs, being led into the courthouse for a hearing. She immediately stated that he was one of the killers. The other woman came to the window and also saw the defendant. Both women later identified the defendant at trial as one of the perpetrators.
The court ruled that the trial-preparation session was an “impermissibly suggestive” identification procedure. Given that the women had not previously identified the defendant as a participant in the crime, the legal assistant’s “actions in showing [the women] the video of [the defendant’s] interview and recent photographs . . . are exactly the kind of highly suggestive procedures that have been widely condemned as inherently suggestive” and amounted to improper witness coaching. Id. at 148. However, the court found that the procedure did not give “rise to a substantial likelihood of irreparable misidentification . . . because the trial court’s findings of fact support the legal conclusion that [one of the women’s] in-court identification of defendant was of independent origin and sufficiently reliable.” Id. at 148. Among other factors, the court highlighted the woman’s proximity to the perpetrators, her opportunity to observe them, and the fact that when she saw a picture of the defendant online shortly after the crime—wearing his hair in a style different from his lineup photo and apparently more similar to his appearance at the time of the crime—she identified him as a perpetrator. Because one of the women made a valid in-court identification, any error in admitting the other woman’s in-court identification of the defendant was harmless beyond a reasonable doubt.
State v. Hunt, 339 N.C. 622 (1995). A witness’s identification of the defendant was independent of an illegal lineup and thus was admissible at trial.
State v. Pigott, 320 N.C. 96 (1987). Assuming that photo lineups were unnecessarily suggestive (only two of the ten photos in this case presented a real choice), the court ruled that evidence of witnesses’ identifications of the defendant during the photo lineups was properly admitted at trial because their identifications were reliable based on the facts in the case.
State v. Flowers, 318 N.C. 208 (1986). Assuming that a one-on-one showup conducted between the victim and the defendant one week after the crime was unnecessarily suggestive, the court ruled that evidence of the witness’s identification of the defendant during the showup was properly admitted at trial because her identification was reliable.
State v. Wilson, 313 N.C. 516 (1985). Although both the pretrial photo lineup and the in-person lineup in this case were made suggestive by an officer’s statement to a witness that the offender was in each lineup, evidence of both lineups was admissible at trial because they were not impermissibly suggestive and did not create a substantial likelihood of misidentification.
See also State v. Simpson, 327 N.C. 178 (1990) (photo lineup was not impermissibly suggestive, although two photos were of light-complexioned black males, one of whom was defendant, and four were of dark-complexioned black males); State v. Harris, 308 N.C. 159 (1983) (evidence of photo lineup was admissible at trial, even though photo of defendant had him wearing same kind of cap and scarf that victim said offender wore during offense); State v. White, 307 N.C. 42 (1982) (similar ruling); State v. Leggett, 305 N.C. 213 (1982) (fact that defendant’s photo was only one common to two groups of photographs shown to victim was not sufficient by itself to make photo-identification procedure impermissibly suggestive); State v. Jones, 98 N.C. App. 342 (1990) (although pretrial photo identification procedure was impermissibly suggestive because officer showed undercover drug officer one photo with suspect’s name on it, in-court identification was admissible at trial because pretrial procedure did not result in “very substantial likelihood of irreparable misrepresentation,” based on totality of circumstances in this case); State v. Vest, 104 N.C. App. 771 (1991) (in-court identification was admissible at trial despite one-photo lineup).
State v. Turner, 305 N.C. 356 (1982). Evidence of a showup conducted by officers about fifteen minutes after the crime occurred was admissible at the defendant’s trial because it was sufficiently reliable despite the procedure’s suggestiveness.
See also State v. Richardson, 328 N.C. 505 (1991) (evidence of showup was admissible, despite being unnecessarily suggestive, because witnesses’ identifications were sufficiently reliable based on facts in this case); State v. Oliver, 302 N.C. 28 (1980) (evidence of showup was admissible, despite being unnecessarily suggestive, because witness’s identification was sufficiently reliable; time between crime and showup was a few hours); Willis v. Garrison, 624 F.2d 491 (4th Cir. 1980) (evidence of showup after robbery was admissible); Stanley v. Cox, 486 F.2d 48 (4th Cir. 1973) (evidence of showup after robbery was admissible); United States v. Watson, 76 F.3d 4 (1st Cir. 1996) (evidence of showup after assault was admissible); Brodnicki v. City of Omaha, 75 F.3d 1261 (8th Cir. 1996) (showup after kidnapping was not impermissibly suggestive); United States v. Henderson, 719 F.2d 934 (8th Cir. 1983) (in-court identification was admissible, even though there was unnecessarily suggestive one-photo identification procedure; government did not introduce evidence of out-of-court identification, so it was not an issue in case); Graham v. Solem, 728 F.2d 1533 (8th Cir. 1984) (in-court identification was admissible, even though there was unnecessarily suggestive showup; State did not introduce evidence of showup, so it was not an issue in case). But see Velez v. Schmer, 724 F.2d 249 (1st Cir. 1984) (unnecessarily suggestive showup made in-court identification unreliable and therefore inadmissible); United States v. Eltayib, 88 F.3d 157 (2d Cir. 1996) (photo array was impermissibly suggestive because defendant’s photo, matching descriptions given by witness, was significantly different from other photos in array).
State v. Bass, 280 N.C. 435 (1972). Testimony of witness that she identified the defendant at a preliminary hearing (now called a probable cause hearing) in district court was admissible when there was no evidence that the hearing was “rigged” by officers for the purpose of identifying the defendant. The witness testified that she was subpoenaed to testify at the hearing and recognized the defendant when he was brought into court: no one prompted her to identify him or pointed him out. See also State v. McGraw, 300 N.C. 610 (1980); State v. Dunlap, 298 N.C. 725 (1979); State v. Long, 293 N.C. 286 (1977); State v. Fowler, 353 N.C. 599 (2001).
North Carolina Court of Appeals
State v. Juene, 263 N.C. App. 543 (2019). The court ruled that the trial court did not err by denying the defendant’s motion to suppress evidence which asserted that the pretrial identification in this case was impermissibly suggestive. Three victims were robbed in a mall parking lot by three assailants. The defendant was apprehended and identified by the victims as one of the perpetrators. The defendant unsuccessfully moved to suppress the showup identification made by the victims. On appeal, the defendant argued that the showup identification should have been suppressed because it was impermissibly suggestive. Before the robbery occurred, the defendant and the other perpetrators followed the victims around the mall and the parking lot. The defendant was two feet from one of the victims at the time of the robbery. The showup occurred approximately fifteen minutes after the crime. Before the showup, the victims gave a physical description of the defendant to law enforcement. All three victims were seated together in the back of a police car during the showup. The defendant and the other perpetrators were handcuffed during the showup and standing in a well-lit area of the parking lot in front of the police car. The defendant matched the description given by the victims. When approaching the area where the defendant and the others were detained, all three victims spontaneously shouted, “That’s him, that’s him,” and all of the victims identified the defendant in court. Id. at 545. Although these procedures “were not perfect,” there was not a substantial likelihood of misidentification in light of the reliability factors surrounding the crime and the identification. “Even though the show-up may have been suggestive, it did not rise to the level of irreparable misidentification.” Id. at 545–46.
State v. Pless, 263 N.C. App. 341 (2018). The court ruled that the trial court did not err by denying the defendant’s motion to suppress evidence concerning in-court identifications which the defendant asserted were unreliable because they were tainted by an impermissibly suggestive Division of Motor Vehicles (DMV) photograph. Detective Jurney conducted an undercover drug purchase from a man known as Junior, who arrived at the agreed-upon location in a gold Lexus. A surveillance team, including Sergeant Walker, witnessed the transaction. Junior’s true identity was unknown at the time, but Walker obtained the defendant’s name from a confidential informant. Several days after the transaction, Walker obtained a photograph of the defendant from the DMV and showed it to Jurney. Walker testified that he had seen the defendant on another occasion driving the same vehicle with the same license plate number as the one used during the drug transaction. At trial, Jurney and Walker identified the defendant as the person who sold the drugs in the undercover purchase.
The defendant argued on appeal that the trial court erred by failing to address whether the identification was impermissibly suggestive. The appellate court found that although the trial court did not make an explicit conclusion of law that the identification procedure was not impermissibly suggestive, it is clear that the trial court implicitly so concluded. The court found the defendant’s cited cases distinguishable, noting in part that there is no absolute prohibition on using a single photograph for an identification. The court noted that even if the trial court failed to conclude that the identification procedure was not impermissibly suggestive, it did not err in its alternative conclusion that the identification was reliable under the totality of the circumstances. It concluded:
State v. Mitchell, 262 N.C. App. 344 (2018). The court ruled that the trial court properly denied the defendant’s motion to suppress a victim’s identification of the defendant as the perpetrator of a robbery. The defendant was charged with armed robbery of a Game Stop store and with threatening the use of a firearm against a store employee, Cintron, during the robbery. Although Cintron failed to identify an alleged perpetrator in a photographic lineup shown to him two days after the robbery, he later identified the defendant when shown a single still-frame photograph obtained from the store’s surveillance video. Cintron then identified the defendant as the perpetrator in the same photographic lineup shown to him two days after the robbery and again in four close-up, post-arrest photographs of the defendant showing his neck tattoos. The defendant unsuccessfully moved to suppress Cintron’s in-court and out-of-court identifications.
On appeal, the defendant argued that the State conducted an impermissibly suggestive pretrial identification procedure that created a substantial likelihood of misidentification. The court rejected that argument, finding that the trial court’s challenged findings and conclusions—that the authorities substantially followed statutory and police department policies in each photo lineup and that the substance of any deviation from those policies revolved around the defendant’s neck tattoos—were supported by the evidence. The defendant fit the victim’s initial description of the perpetrator, which emphasized a tattoo of an Asian symbol on the left side of his neck and notable forehead creases. Based on this description, the victim had the ability to identify the defendant both in court and in photographs reflecting a close-up view of the defendant’s tattoos, and he specifically testified to his ability to recognize the defendant as the perpetrator independent of any lineup or photo he had been shown. Thus, the trial court’s ultimate conclusion—that the procedures did not give rise to a substantial likelihood that the defendant was mistakenly identified—was supported by the totality of the circumstances indicating that the identification was sufficiently reliable.
State v. Macon, 236 N.C. App. 182 (2014). The court ruled that the trial court did not err by admitting into evidence in-court identifications of the defendant made by two officers. The defendant argued that the trial court erred in denying his motion to suppress the officers’ in-court identifications because the procedure they used to identify him violated the Eyewitness Identification Reform Act (EIRA) and his constitutional due process rights. After the officers observed the defendant at the scene of a suspected drug transaction, they returned to the police station and put the suspect’s name into their computer database. When a picture appeared, both officers identified the defendant as the perpetrator. The officers then pulled up another photograph of the defendant and confirmed that he was the perpetrator. This occurred within ten to fifteen minutes of the incident in question. The court concluded that the identification based on two photographs was not a “lineup” and therefore was not subject to the EIRA. The court also ruled that even assuming that the procedure was impermissibly suggestive, the officers’ in-court identifications were admissible because each was based on an independent source—the officers’ clear, close, and unobstructed view of the suspect at the scene.
State v. Jackson, 229 N.C. App. 644 (2013). The court ruled that an out-of-court showup identification was not impermissibly suggestive. Officers told a victim that they “believed they had found the suspect.” The victim was then taken to the place where the defendant was standing in a front yard with officers. With a light shining on the defendant while he was standing in the yard, the victim (who was in a patrol car) identified the defendant as the perpetrator. For reasons discussed in the opinion, the court concluded that the showup possessed sufficient aspects of reliability to outweigh its suggestiveness.
State v. Stowes, 220 N.C. App. 330 (2012). In a robbery trial, the court of appeals found no plain error in the trial court’s determination that a photo lineup was not impermissibly suggestive. The defendant argued that the photo lineup was impermissibly suggestive because one of the officers administering the procedure was involved in the robbery investigation and because that officer may have made unintentional movements or displayed body language that could have influenced the eyewitness. The court noted that the eyewitness (an employee of the store that was robbed) was 75 percent certain of his identification; the investigating officer’s presence was the only irregularity in the identification procedure. The eyewitness did not describe any suggestive actions on the part of the investigating officer, and there was no testimony from other officers to indicate such. Also, the lineup was conducted within days of the crime. Finally, the perpetrator was in the store for forty-five to fifty minutes and spoke with the employee several times.
State v. Watkins, 218 N.C. App. 94 (2012). The court ruled that a pretrial showup was not impermissibly suggestive. The robbery victim had ample opportunity to view the defendant at the time of the crime, and there was no suggestion that the description of the perpetrator given by the victim to the police officer was inaccurate. During the showup, the victim stood in close proximity to the defendant, and the defendant was illuminated by spotlights and a flashlight. The victim stated both at the scene and in court that he was “sure” that the defendant was the perpetrator. Also, the time interval between the crime and the showup was relatively short.
State v. Jones, 216 N.C. App. 225 (2011). The court of appeals ruled that the trial court’s admission of photo identification evidence did not violate the defendant’s right to due process. The day after a break-in at her house, one of the victims, a high school student, became upset in school. Her mother was called to school and brought along the student’s sister, who was also present when the crime occurred. After the student told the principal about the incident, the principal took the student, her sister, and her mother into his office and showed the sisters photographs from the North Carolina Sex Offender Registry website to identify the perpetrator. Both youths identified the perpetrator from one of the pictures. The mother then contacted the police, and the defendant was eventually arrested. At trial, both youths identified the defendant as the perpetrator. The court rejected the defendant’s argument that the principal acted as an agent of the State when he showed the youths the photos, finding that his actions “were more akin to that of a parent, friend, or other concerned citizen offering to help the victim of a crime.” Id. at 233. Because the principal was not a state actor when he presented the photographs, the defendant’s due process rights were not implicated in the identification. Even if the principal was a state actor and the procedure used was unnecessarily suggestive, the procedure did not give rise to a substantial likelihood of irreparable misidentification given the circumstances of the identification, the court found. Finally, because the photo identification evidence was properly admitted, the trial court also properly admitted the in-court identifications of the defendant.
State v. Boozer, 210 N.C. App. 391 (2011). (1) The court ruled that the trial court properly denied the defendant’s motion to suppress, which was based on an assertion that an eyewitness’s pretrial identification was unduly suggestive. The eyewitness had the opportunity to view the defendant at close range for an extended period of time and was focused on and paying attention to the defendant for at least fifteen minutes. Additionally, the eyewitness described the defendant by name as someone he knew and had interacted with previously and immediately identified a photograph of him, indicating high levels of accuracy and confidence in the eyewitness’s description and identification. Although the eyewitness stated that he recognized but could not name all of the suspects on the night of the attack, he named the defendant and identified a photograph of him the next day.
State v. Rawls, 207 N.C. App. 415 (2010). Two men broke into a house, a third man stayed outside the door, and they all fled when confronted by a resident. Shortly thereafter, the three men were detained by officers. The resident was brought to them for a showup identification, and she identified all of the men as having been involved in the break-in. One of the three men was the defendant. Although the showup procedure was unduly suggestive, there was no substantial likelihood of irreparable misidentification, and thus the trial judge did not err by denying a motion to suppress the resident’s showup identification. The showup was unduly suggestive when an officer told the resident beforehand that “they think they found the guy” and the defendant at the showup was detained with several officers present. However, there was no substantial likelihood of irreparable misidentification when, although only having viewed the suspects for a short time, the resident looked “dead at” the suspect and made eye contact with him from a table’s length away during daylight hours with nothing obstructing her view, the showup occurred fifteen minutes later, and the resident was “positive” about her identification of the three suspects, as “she could not forget their faces.”
State v. Williams, 201 N.C. App. 103 (2009). The victim’s friend called her to identify the defendant the night he was arrested. The friend did so on her own volition and was not acting on behalf of law enforcement. The court rejected the defendant’s argument that the trial court erred by admitting the victim’s identification testimony because it resulted from an improper showup. Absent government involvement, there was no violation of the defendant’s constitutional rights.
State v. Pinchback, 140 N.C. App. 512 (2000). The State’s evidence showed that the defendant and an accomplice robbed the victim in Yanceyville. A law enforcement officer took the victim to a restaurant parking lot in Virginia where two suspects had been stopped. The victim viewed the suspects while they were standing next to a vehicle that was surrounded by law enforcement vehicles. The victim said that these two men robbed him, but he could only positively identify the accomplice. This identification procedure took place about an hour after the robbery.
The issue on appeal was the admissibility at trial of this pretrial identification procedure under the Due Process Clause. The court noted, citing State v. Pigott, 320 N.C. 96 (1987), that even when a pretrial identification procedure is suggestive, the pretrial identification is nevertheless admissible unless under the totality of circumstances “there is a substantial likelihood of irreparable misidentification.” The court then examined the due process factors set out in Pigott and ruled that the trial judge erred in admitting evidence of the pretrial identification. Here, the victim did not have an opportunity to view the defendant when the robbery occurred, the victim’s degree of attention to the defendant’s identity was minimal because the victim was unable to view the defendant, and the victim’s description of the defendant was unreliable.
State v. Capps, 114 N.C. App. 156 (1994). Although the one-on-one showups in this case were unnecessarily suggestive, they were not impermissibly suggestive so as to result in a substantial likelihood of irreparable misidentification. Therefore, the trial judge did not err in admitting evidence of the witnesses’ out-of-court identifications of the defendant that occurred during the showups. Also, in-court identifications by the witnesses were properly admitted.
State v. Bartow, 77 N.C. App. 103 (1985). The court ruled that the trial judge did not err in not suppressing an out-of-court photographic identification when the photographs had been altered by drawing eyeglasses on each picture to conform to the victim’s description of the robber and the defendant was the only person pictured having cuts and bruises on his face and wearing dark clothing. The alteration of the photographs was not impermissibly suggestive because all the photographs had been similarly altered, and the dark clothing, cuts, and bruises were not unduly suggestive because the victim had not described the robber as having those features. See also State v. Smith, 130 N.C. App. 71 (1998) (procedures in conducting photographic and in-person lineup were not impermissibly suggestive).
Identification after an Unconstitutional Arrest
UNITED STATES SUPREME COURT
United States v. Crews, 445 U.S. 463 (1980). The defendant was arrested without probable cause for an assault, his photograph was taken, and he was compelled to appear in a lineup. The assault victim identified the defendant’s photograph from a photo lineup and also identified him in an in-person lineup. The Court ruled that the victim’s in-court identification (neither of her out-of-court identifications was introduced at trial) of the defendant was admissible at trial despite his unconstitutional arrest because the victim’s in-court identification rested on her independent recollection of the robbery, uninfluenced by the out-of-court identifications.
Johnson v. Louisiana, 406 U.S. 356 (1972). The defendant was arrested, brought before a magistrate, and advised of his rights. Bail was set, and he was committed to jail. A lineup then was held at which the defendant was represented by counsel. Responding to the defendant’s argument that the lineup identification should have been suppressed because it resulted from an illegal arrest, the Court ruled that the identification evidence was not a fruit of the illegal arrest because the defendant was being detained under the magistrate’s commitment when the lineup was held. Therefore, the lineup was not conducted through the exploitation of the illegal arrest but, rather, by means sufficiently distinguishable to be purged of the illegal arrest.
NORTH CAROLINA SUPREME COURT
State v. Matthews, 295 N.C. 265 (1978). An out-of-court identification that follows an unconstitutional arrest is admissible if it otherwise satisfies due process standards. The court stated that the only fruit of the illegal arrest in this case was the identification of defendants, and the federal constitution does not protect a person from being viewed. See also United States v. Young, 512 F.2d 321 (4th Cir. 1975).
State v. Accor, 277 N.C. 65 (1970), later appeal, 281 N.C. 287 (1972). Photographs and evidence of the photographic lineup in which they were used are inadmissible at trial when the photographs were taken while the defendants were in custody as a result of unconstitutional arrests.
Statutory Procedures Involving Lineups
(This topic is discussed in the chapter text under “North Carolina Statutory Procedures for Live Lineups and Photo Lineups.”)
NORTH CAROLINA COURT OF APPEALS
State v. Reaves-Smith, 271 N.C. App. 337 (2020). Two men attempted to rob the victim in a McDonald’s parking lot. One of the suspects fired a gun, and both suspects fled. The victim ran to a nearby parking lot, where he found a law enforcement officer. The victim told the officer what had occurred and described the suspects. Two suspects matching the description were located nearby a few minutes later. When officers approached, the defendant ran. He was apprehended a few minutes later. The victim was taken to the location where the defendant was apprehended, and the victim identified the defendant as the person with a gun who had tried to rob him earlier. The identification was recorded on one of the officer’s body cameras.
The defendant was indicted for attempted robbery with a dangerous weapon. He moved to suppress the victim’s showup identification. The trial court denied the motion, and the defendant was convicted at trial. The defendant appealed, arguing that the trial court erred when it denied his motion to suppress evidence of the showup identification and when it failed to instruct the jury about purported noncompliance with the North Carolina Eyewitness Identification Reform Act (EIRA).
The court noted that G.S. 15A-284.52(c1), the section of the EIRA covering showup procedures, provides as follows:
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“A show-up may only be conducted when a suspect matching the description of the perpetrator is located in close proximity in time and place to the crime, or there is reasonable belief that the perpetrator has changed his or her appearance in close time to the crime, and only if there are circumstances that require the immediate display of a suspect to an eyewitness.”
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A showup may only be performed using a live suspect.
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Investigators must photograph a suspect at the time and place of the showup in order to preserve a record of the suspect’s appearance at the time of the showup.
The court determined that the trial court made findings that supported each of these requirements. The defendant, who matched the victim’s description, was detained less than a half-mile from the site of the attempted robbery. He was suspected of a violent crime that involved the discharge of a firearm and fled when officers first attempted to detain him. These circumstances required an immediate display of the defendant. An armed suspect who is not detained poses an imminent threat to the public. Had the victim determined that the defendant was not the perpetrator, officers could have released the defendant and continued their search. Finally, the showup involved a live suspect and was recorded on camera.
The court rejected the defendant’s argument that the EIRA requires law enforcement officers to obtain a confidence statement and information related to the victim’s vision. G.S. 15A-284.52(c2) requires the North Carolina Criminal Justice Education and Training Standards Commission to develop a policy regarding standard procedures for showups. According to the statute, the policy must address “[c]onfidence statements by the eyewitness, including information related to the eyewitness’ vision, the circumstances of the events witnessed, and communications with other eyewitnesses, if any.” The court reasoned that because G.S.
15A-284.52(c2) does not place additional statutory requirements on law enforcement but instead requires the North Carolina Criminal Justice Education and Training Standards Commission to develop non-binding guidelines, only G.S. 15A-284.52(c1) sets forth the requirements for showup identification compliance.
The court further determined that the showup here did not violate the defendant’s due process rights, as it was not impermissibly suggestive and did not create a substantial likelihood of misidentification.
G.S. 15A-284.52(d)(3) provides that when evidence of compliance or noncompliance with “this section” of the EIRA is presented at trial, the jury must be instructed that it may consider credible evidence of compliance or noncompliance to determine the reliability of eyewitness identifications. The defendant argued on appeal that he was entitled to a jury instruction on noncompliance with the EIRA because the officer did not obtain an eyewitness confidence statement as required under G.S. 15A-284.52(c2)(2). The court rejected that argument on the basis that G.S. 15A-284.52(c2) concerns policies and guidelines established by the North Carolina Criminal Justice Education and Training Standards Commission, not the requirements for showup identifications. Because the officers complied with the showup procedures in G.S. 15A-284.52(c1), the defendant was not entitled to a jury instruction on noncompliance with the EIRA.
State v. Crumitie, 266 N.C. App. 373 (2019). An officer responded to a shooting at the victim’s apartment. Upon arrival, he saw a man running with a towel in his hands and gave chase. The officer could not catch the man and instead found one of the victims, the defendant’s ex-girlfriend. She was able to describe the assailant and provide his name. The officer then located a Division of Motor Vehicles (DMV) picture of the suspect and identified the defendant as the person he saw running earlier. The defendant sought to suppress this identification as a violation of the North Carolina Eyewitness Identification Reform Act (EIRA). Specifically, the defendant argued that the officer failed to conduct the “showup” in accord with the procedure required under the EIRA. The trial court denied the motion, and the court of appeals affirmed. The EIRA applies to “live lineups, photo lineups, and show-ups.” Here, the court stated, the inadvertent out-of-court identification of the defendant, based on one DMV photo accessed by the investigating officer, was neither a lineup nor a showup under the EIRA, and thus was not subject to the statute’s protections. Even if the identification was suggestive, there was no substantial likelihood of misidentification under the facts of the case, and the denial of the motion was affirmed.
State v. Gamble, 243 N.C. App. 414 (2015). The court rejected the defendant’s argument that the identification procedure used in this case violated the Eyewitness Identification Reform Act (EIRA). Although a non-independent administrator was used for the procedure, the administrator satisfied the requirements of G.S. 15A-284.52(c) for such administrators (he used the folder method specified in the statute). Additionally, the administrator met the other requirements of the EIRA. The court rejected the defendant’s argument that plain error occurred because the administrator could not identify the specific five filler photographs that were used out of the seven total selected for the lineup. The court concluded that the administrator’s failure to recall which of the five filler photographs were used affected the weight of his testimony, not its admissibility. The court ruled that the trial court did not err by admitting the filler photographs into evidence.
State v. Macon, 236 N.C. App. 182 (2014). The court ruled that the trial court did not err by admitting into evidence in-court identifications of the defendant made by two officers. The defendant argued that the trial court erred in denying his motion to suppress the officers’ in-court identifications because the procedure they used to identify him violated the Eyewitness Identification Reform Act (EIRA) and his constitutional due process rights. After the officers observed the defendant at the scene of a suspected drug transaction, they returned to the police station and put the suspect’s name into their computer database. When a picture appeared, both officers identified the defendant as the perpetrator. The officers then pulled up another photograph of the defendant and confirmed that he was the perpetrator. This occurred within ten to fifteen minutes of the incident in question. The court concluded that the identification based on two photographs was not a “lineup” and therefore was not subject to the EIRA. The court also ruled that even assuming that the procedure was impermissibly suggestive, the officers’ in-court identifications were admissible because each was based on an independent source—the officers’ clear, close, and unobstructed view of the suspect at the scene.
State v. Stowes, 220 N.C. App. 330 (2012). While the court of appeals ruled that the trial court did not commit plain error by granting the defendant relief under the Eyewitness Identification Reform Act (EIRA), it did not exclude evidence of a pretrial identification. The trial court found that an EIRA violation occurred because one of the officers administering the identification procedure was involved in the investigation. The court of appeals concluded: “We are not persuaded that the trial court committed plain error by granting Defendant all other available remedies under EIRA, rather than excluding the evidence.” Id. at 341.
State v. Boozer, 210 N.C. App. 371 (2011). (1) The court ruled that the trial court properly denied the defendant’s motion to suppress, which was based on an assertion that an eyewitness’s pretrial identification was unduly suggestive. The eyewitness had the opportunity to view the defendant at close range for an extended period of time and was focused on and paying attention to the defendant for at least fifteen minutes. Additionally, the eyewitness described the defendant by name as someone he knew and had interacted with previously and immediately identified a photograph of him, indicating high levels of accuracy and confidence in the eyewitness’s description and identification. Although the eyewitness stated that he recognized but could not name all of the suspects on the night of the attack, he named the defendant and identified a photograph of him the next day. (2) The court ruled that there was no violation of G.S. 15A-284.52 (eyewitness identification procedures). The eyewitness told a detective that he had seen one of the perpetrators in a weekly newspaper called the Slammer but did not recall his name. The detective allowed the eyewitness to look through pages of photographs in the Slammer, and from this process the eyewitness identified one of the defendants. The detective did not know who the eyewitness was looking for and thus could not have pressured him to select one of the defendants, nor did any evidence suggest that this occurred. The court noted that G.S. 15A-284.52(c) permits the use of any photo identification procedure that achieves neutral administration and that any alternative method must be carefully structured to achieve neutral administration and to prevent the administrator from knowing which photo is being presented to the eyewitness during the identification procedure.
State v. Rawls, 207 N.C. App. 415 (2010). Two men broke into a house, a third man stayed outside the door, and they all fled when confronted by a resident. Shortly thereafter, the three men were detained by officers. The resident was brought to them for a showup identification, and she identified all of the men as having been involved in the break-in. One of the three men was the defendant. The court ruled that the Eyewitness Identification Reform Act (G.S. 15A-284.50 through 15A-284.53), which sets out procedures for conducting live and photo lineups, does not apply to showups.
Statutory Restrictions on the Use of Identification Procedures with Young People
(This topic is discussed in the chapter text under “Part II. Lineups and Other Identification Procedures,” “Juveniles.”)
NORTH CAROLINA SUPREME COURT
In re Stallings, 318 N.C. 565 (1986). A one-on-one showup between a victim and a juvenile suspect may be conducted without a juvenile nontestimonial identification order (G.S. 7A-596; now G.S. 7B-2103) when the showup does not violate due process. In this case, the showup was conducted within about an hour after the crime at issue occurred and, based on the totality of circumstances, was constitutionally permissible. The court’s ruling reversed the opinion of the North Carolina Court of Appeals, 77 N.C. App. 592 (1985). [Author’s note: The Stallings ruling effectively reversed the ruling in State v. Norris, 77 N.C. App. 525 (1985) (one-on-one showup cannot be conducted with a juvenile without a nontestimonial identification order).]
United States v. Henry