Highlights of This Issue

United States Supreme Court Action

• Court Approves Drug Interdiction Procedures
• Search of Home Without a Warrant, or Probable Cause Plus Exigent Circumstances, violated Fourth Amendment
• Student Drug Tests approved
• Execution of Mentally Retarded Murderers ruled unconstitutional
• Court to Decide Miranda Violations Damages Case

Federal and State Decisions

Fifth Amendment Rights: Police Suggestion That Suspect's Girlfriend Call Him; "State Agent" Issue

State. Defendant's former girlfriend was not acting as an agent of the state when she recorded incriminating telephone conversations with defendant, in violation of defendant's Fifth Amendment rights, even though a detective provided the former girlfriend with a tape recorder and blank tapes and suggested initially that she contact defendant. It appeared that the detective expressly told the former girlfriend not to contact the defendant after the initial call. That initial phone conversation yielded no incriminating information, and the former girlfriend's subsequent calls appeared to be motivated by her desire to find out who was terrorizing her and regain a sense of peace, rather than acting on behalf of the police.

"Lawrence [former girlfriend] testified that Coales [detective] directed her not to contact appellant after her initial call. However, she ignored that admonition and did so anyway. Her testimony clearly reveals her desire to find out who was terrorizing her and to put an end to it and regain a sense of peace. . . .

"Because the evidence supports the trial court's finding that Lawrence was not acting as a government agent, the Due Process Clauses of the Fifth and Fourteenth Amendments are not implicated. Therefore, if police are not actively involved, the confession obtained by a private party is deemed voluntary under the Due Process Clause of the Fifth Amendment, thereby obviating a voluntariness analysis. . . ."

One judge dissented.

Federal. A murder defendant was not in custody when he was interviewed at a police detective's office after a Terry stop, and thus, the administration of Miranda warnings was not required. The defendant knew that he was stopped because his car was reportedly involved in an accident, he was not formally arrested and he voluntarily went to the detective's office without bodily restraints, and left the detective's office after the interview.

". . . The record shows that Mr. Resper knew that he had been stopped because of his car. He voluntarily went to Detective Reed's office without bodily restraints, and agreed to speak with Detective Reed. After the interview, Mr. Resper left detective Reed's office. [He was not arrested for murder until several months later.] Under the circumstances, no reasonable person, knowing as Mr. Resper did that he was not under arrest, would have thought that he was being detained for interrogation against his will. In short, the trial court did not err in concluding that Mr. Resper was not subjected to custodial interrogation, and thus, the recitation of Miranda warnings was not required."

State. When a police officer placed a tire iron used in a burglary and a trash bag containing stolen magazines in front of defendant, telling him that the evidence was going to be examined for finger prints and that he was presenting the evidence that was going to be used for questioning, this constituted the functional equivalent of interrogation, and required the suppression of incriminating statements made by defendant prior to receiving a Miranda warning. The court noted that although defendant was not subjected to express interrogation, he was not being routinely processed, but had been brought to the police station for the specific purpose of questioning. Under the circumstances, the only plausible explanation for the officers' conduct was that he expected to obtain a statement from defendant.

". . . petitioner was not being processed, the police were not serving a warrant or inventory upon him pursuant to a Maryland rule, and they did not merely place the tire iron and stolen magazines before him. The officer told petitioner that they were going to process the items for fingerprints. Considering that the officer brought petitioner to the station for the specific purpose of questioning him, it hardly strains logic to conclude that the officer should have known that his conduct and words would elicit an incriminating response."

Two judges dissented.

State. Merely because a defendant, who was convicted of capital sexual battery, was functionally illiterate, of low normal intelligence, and poorly equipped to defend himself in the battle of wits with a police officer during an interview when he confessed, was not sufficient to show that his confession was involuntary or coerced. The interview lasted only 25 minutes, there was no show of force, defendant willingly agreed to talk, he was read his Miranda rights as well as the waiver which he signed, and the atmosphere during the interview was not intimidating.

". . . At best, he established that he is functionally illiterate, is of low normal intelligence, and that he was poorly equipped to defend himself in the battle of wits in which he and the police officer interviewing him engaged when he made his confession. But this is not enough to support suppression of his confession on the grounds it was involuntary or coerced. The interview lasted only 25 minutes, there was no show of force, Peterson willingly agreed to talk, he was read his Miranda rights as well as the waiver which he signed, and the atmosphere during the interview was in no way intimidating. . . ."