Incriminating Answers to non-Incriminating Questions

State v. Rippe (ICA July 31, 2008)

Background. Police learned of a man in Waikiki taking a license plate. When they arrived at the scene, they encountered Rippe leaning over a BMW with a license plate in hand. An officer asked Rippe if the BMW was his, and Rippe said it was. The police suspected the BMW was stolen, and wanted to search the car for the VIN. It turned out that the BMW was in fact registered to him, but the license plate in question was not. Rippe was arrested for theft in the fourth degree. As the police searched the car for the VIN, they found a blue nylon bag underneath the driver's seat. They took it out of the car and asked Rippe if he would consent to a search of the bag. Rippe said it was not his bag. The police then searched it and found methamphetamine and related paraphernalia. They asked follow up questions about the BMW, and Rippe explained that plenty of people put stuff in his car. At the station, Rippe gave a statement after his Miranda warnings. He was charged with promoting a dangerous drug in the 3d (HRS § 712-1243), unlawful use of drug paraphernalia (HRS § 328-43.5), and theft in the 4th (HRS § 708-833(1)). Rippe filed a motion to suppress the evidence in the bag, all of the statements made at the scene, and his statements at the station. The circuit court suppressed the evidence in the blue bag and the statements about the bag at the station. The State appealed.

Request to Search is not an Interrogation Requiring Miranda. The State is required under Article I, § 10 of the Hawai'i Constitution to show that statements made during a custodial interrogation were safeguarded with Miranda warnings before they can be used at trial. State v. Ketchum, 97 Hawai'i 107, 116, 34 P.3d 1006, 1015 (2001). The State argued that although Rippe was in custody when the police asked for his consent to search the bag, that particular question was not an interrogation requiring Miranda warnings. An "interrogation" usually means the "express questioning or its functional equivalent." Id. at 119, 34 P.3d at 1018. Ultimately, the issue is whether, based on a totality of the circumstances, "the police officer should have known that his or her words or action were reasonably likely to elicit an incriminating response from the person in custody." Id. The ICA agreed with the State that request to consent a bag is not an "interrogation" designed to elicit an incriminating response because, according to the ICA, such a request is "not a request for information." State v. Blackshire, 10 Haw. App. 123, 137, 861 P.2d 736, 743 (1993) overruled on other grounds by State v. Ah Loo, 94 Hawai'i 207, 10 P.3d 728 (2000).

But the Follow up Questions Are. The focus here is not on the answer. Rippe responded by saying that the bag was not his. It is clear enough that that answer would certainly be incriminating. However, the officer's question was whether Rippe would allow them to consent to a search. The ICA agreed with the State that that was no reasonably likely to elicit the incriminating response. However, the ICA examined the follow up questions the BMW and held that they were reasonably likely to elicit an incriminating response. After all, even if the officers asked Rippe to explain why the drugs were not his, they were still "incriminating responses." See State v. Joseph, 109 Hawai'i 482, 128 P.3d 795 (2006).

Of Course There's Standing! The ICA rejected the State's contention that Rippe had no standing to challenge the evidence seized from the nylon bag at his own trial because he disclaimed ownership of the bag at the scene of the crime. A criminal defendant "always has standing to challenge the admission of evidence introduced by the State." State v. Taua, 98 Hawai'i 426, 436 n. 19, 49 P.3d 1227, 1237 n. 19 (2002). The ICA relied on cases that explained that the State "cannot charge a person with possession and then deny . . . his remedy at law to object to the search and seizure[.]" State v. Dias, 52 Haw. 100, 105, 470 P.2d 510, 513 (1970).

With Reckless Abandon? The other issue raised by the State centered around the purported abandonment of the bag. A defendant has no privacy interest in abandoned property so a warrantless search and seizure of that property does not violate the Fourth Amendment to the U.S. Constitution or Article I, § 7 of the Hawai'i Constitution. State v. Kolia, 116 Hawai'i 29, 33-34, 169 P.3d 981, 85-86 (App. 2007). The question is whether Rippe abandoned the property. Abandonment centers around the intent of the purported relinquisher. Intent may be inferred from words spoken or acts. State v. Mahone, 67 Haw. 644, 648, 701 P.2d 171, 175 (1985). When a defendant says nothing in response to the question of whether he or she owns the item to be searched, it cannot be inferred that the defendant abandoned the property. State v. Joyner, 66 Haw. 543, 545, 669 P.2d 152, 153 (1983). However, an express denial of ownership does infer the intent to abandon the property. State v. Mahone at 648, 701 P.2d at 175. According to the ICA, Rippe's "unequivocal disclaimer of ownership shows his intent to abandon the bag" and, thus, the warrantless intrusion into the bag did not violate the state and federal constitutions.

A Simple "No" (or no Answer at all) Would Suffice. First, there's the issue of whether the police officer's question about a piece of property arises to a "custodial interrogation" prompting Miranda warnings. In this case, the ICA held that the request to consent is not. Instead of refusing to consent, however, Rippe said that the bag was not his. This leads to the second constitutional question -- whether Rippe abandoned the bag so that the police could search it without a warrant. According to the ICA, this non sequitur response could be used to infer the intent to abandon. However, the ICA, in a footnote, pointed out that when the police ask a person questions that would inculpate him or her if the person claims ownership, a disclaimer of ownership is not an inference of abandonment. This dovetails back into the first issue. If the police were to ask questions of that sort to someone in custody, they are arguably conducting a "custodial interrogation." Any response would be suppressed if they failed to Mirandize the defendant. Not only that, but if the answer was a disclaimer, it cannot be used to infer the intent to abandon property. Rippe's case is different, and the use of the evidence in the bag and his disclaimer all hinged on his inability to answer the officer's simple yes-no request to consent. Perhaps it would have been better for Rippe to say nothing. That way no statement exists in need of suppression; and, pursuant to Joyner, his silence could not have been used to infer abandonment.

But it Could all be moot if . . . Rippe, the appellee, argued that in spite of all of the State's arguments to reverse the suppression, there was ample evidence showing that the search of the BMW was unlawful. The ICA noted that the issue was raised before the circuit court, but it failed to resolve it. The ICA did not resolve it either and remanded the case back to the circuit court. If the initial search was unlawful, then the evidence from the bag must be suppressed on those grounds.


LoF said…
The police really should examine the use of deceit and trickery in investigating and interrogating. There is something very illegitimate from a philosophical position about "the law" using trickery and deceit to elicit "the truth."

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