Highlights of This Issue

United States Supreme Court Action

Failure to Give Miranda Warnings and Use of Coercion Is Not a Violation of the Fifth Amendment If Criminal Charges Are Not Filed.

Chavez v. Martinez, 123 S.Ct. 1994, 2003 WL 21210419, No. 01-1444 (2003).

In this case a fight ensued after police officers investigating suspected narcotics activity conducted a patdown frisk of the plaintiff and discovered a knife in his waistband. The plaintiff was shot by police several times. While in a hospital emergency room, he was interviewed by the defendant, a patrol supervisor, and he admitted that he took a gun from an officer's holster and pointed it at the police. At no time was plaintiff given Miranda warnings. He was never charged with a crime, nor were his answers ever used against him in any criminal prosecution.

Plaintiff filed a civil rights action under 42 U.S.C. 1983, alleging that the officer's actions violated his Fifth Amendment right against compelled self-incrimination and his Fourteenth Amendment substantive due process right to be free from coercive questioning. The district court denied qualified immunity to the officer and the Ninth Circuit affirmed the district court's denial of qualified immunity. 270 F.3d 852.

The United States Supreme Court reversed in a 5-4 decision. Justice Thomas, joined by three other justices, concluded that the plaintiff's allegations failed to state a violation of his constitutional rights. The Fifth Amendment requires that no person shall be compelled in any criminal case to be a witness against himself. The Court "fail[ed] to see how, based on the text of the Fifth Amendment, [plaintiff could] allege a violation of this right, since he was never prosecuted for a crime, let alone compelled to be a witness against himself in a criminal case." At the very least, a "criminal case" requires the initiation of legal proceedings. Although statements compelled by police interrogators may not be used against the defendant at trial, it is not until their use in a criminal case that a violation of the self-incrimination clause occurs. Thus, there was no liability under 1983 for the defendant's use of coercion.

On the Fourteenth Amendment issue, Justice Souter, in a brief opinion in which four other Justices joined, concluded that whether the plaintiff could pursue a claim of liability for a substantive due process violation, based on his charge of outrageous conduct by the police, was an issue that should be addressed on remand of the case to the court below.

There were various partial concurring and dissenting opinions.

Automobile Inventory Searches: Written Policies; Closed Containers

People v. Gibson, 786 N.E.2d 540 (Ill. 2003).

State. The Supreme Court of Illinois has ruled that there is no constitutional requirement that police procedures for an inventory search of a lawfully impounded vehicle must be in writing, and instead, the Fourth Amendment requires only that, in conducting inventory searches, the police act in accordance with standardized department procedures. The court reversed state cases to the contrary.

". . . [A]lthough it may be easier for the State to show that it was acting in accordance with standard procedures if it can produce a written policy, the [United States] Supreme Court has not required, as a matter of constitutional law, that such policies be reduced to writing."

The Illinois court ruled that a state police officer's uncontradicted testimony that the State Police department had a standard policy of conducting an inventory search before towing the vehicle of a motorist arrested for driving on a revoked license, established that the officer acted according to standardized department procedures when he searched the trunk of the motorist's vehicle. This was an element for a constitutionally permissible warrantless inventory search of a lawfully impounded vehicle, even though the department's written procedures were not introduced into evidence.

Additionally, the officer's uncontradicted testimony that the department had a standard policy of checking the passenger compartment and trunk for valuables and of listing any valuables on a tow inventory sheet established that the department's standard policy for conducting an inventory search before towing the vehicle included a policy of opening closed containers in which valuables might be found.

". . . [A] policy requiring an inventory of all of the contents of a vehicle is sufficient to allow the opening of closed containers. Here, the policy of inventorying anything of value found in the passenger compartment or trunk was sufficient to allow the opening of containers that may contain valuables."

Of course, the better police practice is to have impoundment and inventory policies in writing and that they specifically address closed containers.

Miranda: Waiver; Deception; "Honesty Won't Hurt You"

Hart v. Attorney General of State of Florida, 323 F.3d 884 (11th Cir. 2003).

Federal. Waiver of counsel during custodial interrogation was ruled the result of police deception and not made with full awareness of both the nature of the right being waived and the consequences of a waiver. Although a police detective went to great lengths to apprise defendant of his Miranda rights before defendant signed a written waiver form, the defendant had asked for clarification of his right to counsel, and the detective responded by telling him that the disadvantage of having a lawyer present was that a lawyer would tell him not to answer incriminating questions, and that "honesty wouldn't hurt him."

"During the colloquy on the pros and cons of hiring a lawyer, Schuster also told Hart that 'honesty wouldn't hurt him.' Telling him that 'honesty wouldn't hurt him' contradicted the Miranda warning that anything he said could be used against him in court. The phrase 'honesty will not hurt you' is simply not compatible with the phrase 'anything you say can be used against you in court.' The former suggested to Hart that any incriminating statement would not have detrimental consequences while the latter suggested (correctly) that an incriminating statement would be presented at his trial as evidence of his guilt.

"Given the totality of the circumstances surrounding the interrogation, which include Hart's trust of Schuster and Schuster's statements contradicting the Miranda warnings, we cannot say that Hart's decision to waive his rights and confess was voluntary, knowing, and intelligent. His decision to waive his rights and confess was the product of Schuster's deception and, as a result of her contradictory statements, he did not truly understand the nature of his right against self-incrimination or the consequences that would result from waiving it. Therefore, his waiver was not voluntary, knowing, and intelligent as required by Miranda. . . ."

One judge dissented.

Vertical Gaze Nystagmus and Resting Nystagmus: Admissibility

Quinney v. State, 99 S.W.3d 853 (Tex.App. 2003).

State. The trial court erred in admitting evidence of "vertical nystagmus" (VGN) and "resting nystagmus" in a prosecution for driving while intoxicated. The court said there was no scientific proof behind a police officer's theory that VGN and resting nystagmus tests were merely "extensions" of a horizontal gaze nystagmus (HGN) test.

HGN has universally been accepted as valid scientific evidence, but VGN and resting nystagmus have not been accepted as evidence that a suspect was under the influence of narcotics as opposed to alcohol.

The court ruled, however, that the trial error in admitting the evidence was harmless because there was ample other evidence to convict the defendant of DUI (drugs or alcohol).

Affirmative Action Programs: Sergeant Promotions; Necessity to Remedy Past Discrimination

Cotter v. City of Boston, 323 F.3d 160 (1st Cir. 2003).

Federal. It was held that in making a determination whether an affirmative action court order for the promotion of minority police officers to sergeant positions was sufficiently narrowly tailored to a compelling state interest, as required to satisfy equal protection principles, a court must consider the extent to which (1) the beneficiaries of the order are specially advantaged, (2) the legitimate expectancies of others are frustrated or encumbered, (3) the order interferes with other valid state or local policies, and (4) whether the order contains built-in mechanisms which will, if time and events warrant, shrink its scope and limit its duration.

"The Department was faced with facts that its efforts at remedying past discrimination had not been successful. A public employer has the requisite firm basis for believing that remedial action is necessary if there is a statistical disparity between the racial composition of the workforce and the relevant, qualified employment pool. . . .

"The City's evidence of disparity in the promotion of officers to sergeant, current racial tensions within the Department, and a documented history of past discrimination within the BPD created the strong basis in evidence required for the Department to conclude that race-conscious action was necessary. . . ."