Tuesday, December 1, 2009

Blurring the Scope of an Interrogation

State v. Strong (ICA November 25, 2009)

Background. Strong was arrested and taken to the Kalihi police station where he was advised of his constitutional rights using a standard police form. Officer McKee attempted to question Strong about a robbery on March 19, 2006. Strong stated that he understood his constitutional rights, but refused to give a statement. Officer McKee told Officer Kiyotoki about it.

Officer Kiyotoki was the lead investigator for four incidents in which Strong was a suspect. Officer Kiyotoki had Strong fill out an understanding-and-waiver-of-rights form. Officer Kiyotoki wrote on the form that he was only going to discuss one of the offenses. Strong indicated that he understood his rights and agreed to talk about the first incident in February. However, during the course of the interrogation, Officer Kiyotoki and Strong talked about the other incidents. Strong was indicted of several counts ranging from theft in the third degree to robbery in the second degree. The counts stem from five different incidents between February and March 2006. Strong filed a motion to suppress. At the hearing, Officer Kiyotoki admitted that he only put one of the four incidents in the form because writing them all down tends to dissuade suspects from talking. The circuit court granted the motion in part. The State appealed.

"You have the Right to Remain Silent . . ." State and federal constitutions require police officers to warn suspects about their constitutional right to remain silent and have an attorney present when the suspect is (1) in custody and (2) being interrogated. Miranda v. Arizona, 384 U.S. 436, 444-45 (1966); State v. Wallace, 105 Hawai'i 131, 137, 94 P.3d 1275, 1281 (2004). Questioning can then only proceed when the suspect knowingly and intelligently waives those rights. Miranda v. Arizona, 384 U.S. at 445.

Multiple Warnings are not Required in the same Interrogation. The ICA rejected Strong's argument that he did not waive his right against self-incrimination for the incidents that omitted from Officer Kiyotoki's form. "[A] suspect's awareness of all the possible subjects of questioning in advance of interrogation is not relevant to determining whether the suspect voluntarily, knowingly, and intelligently waived his Fifth Amendment" right. Colorado v. Spring, 479 U.S. 564, 577 (1987). Moreover, "[o]nce Miranda warnings are given, they need not be given again in the same interrogation even if other offenses materialize or become more appropriate." State v. Ramones, 69 Haw. 398, 406, 744 P.2d 514, 518 (1987).

The ICA held that Strong knowingly, intelligently, and voluntarily waived his rights and that Officer Kiyotoki's intentional strategy to avoid other suspected offenses had no bearing on the voluntariness of Strong's waiver because "the use of that strategy is not per se constitutionally impermissible so long as the Miranda warnings are contemporaneously given and knowingly, voluntarily, and intelligently waived." The ICA also noted that there is no authority for "the proposition that the police are required to provide a separate, written, Miranda warning for each specific crime addressed within a single interrogation, particularly when a defendant has been advised of the full scope of the interrogation prior to the beginning of the questioning." The ICA vacated the order suppressing evidence and remanded for further proceedings.

Distinguishing Justices Acoba and Levinson. The ICA also distinguished Justice Acoba's concurrence in State v. Poaipuni, 98 Hawai'i 387, 49 P.3d 353 (2002). In that case, the suspect was in custody when three detectives interviewed him about four different offenses. Id. at 398-99, 49 P.3d at 364-65. None of the cases were going to be about offenses pertaining to firearms. Id. Justices Acoba and Levinson believed that the failure to advise the suspect that the scope of the interrogation would involve the firearms prior to the interrogation violated the suspect's constitutional rights. Id. The ICA distinguished Justice Acoba's concurrence on the grounds that unlike Poaipuni, Strong was advised that he was going to be interrogated about the other incidents before the actual questioning about them began. And so, according to the ICA, even if it did adopt the Poaipuni concurrence, there would still be no constitutional violation.

What does "Prior to Questioning" mean? In order to distinguish Justice Acoba's concurrence, the ICA had to examine what it means to advise prior to an interrogation. In Poaipuni, the police did not advise the suspect about the firearms offenses "prior to the questioning." The ICA explained that in this case, Officer Kiyotoki informed Strong about the different offenses in the middle of the interrogation, but prior to the actual questioning. This, according to the ICA, was not like the police in Poaipuni. It means that as long as there is some kind of advisement--even in the middle of the entire interrogation--there is no Poaipuni violation. Does that mean that if the officers in Poaipuni shifted gears in the middle of their interview and advised the suspect that they were moving onto the firearms offenses, Justices Acoba and Levinson would have found no error? According to the ICA today, the answer is yes.

But what About Coercion? According to the ICA, the subject matter during the interrogation is irrelevant so long as the waiver was voluntary. That would mean that it is up to the suspect to determine the scope of the interrogation--even in this case, where the police officer went ahead and indicated on the form that they would only be talking about a single, particular offense. That strategy, according to the ICA, is not prohibited by the state and federal constitutions. But a coerced statement is. State v. Gella, 92 Hawai'i 135, 143, 988 P.2d 200, 208 (1999). So can the intentional omission of other offenses at the start of the interrogation ever arise to coercion? It would seem so especially since it is up to the suspect to delineate the scope of the interrogation. That distinction was not made here, but it may be made down the line.

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