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    Part V – Understanding Colorado Criminal Law – Confessions and Interrogations

    What follows are the Constitutional Standards Applied to Confessions and Interrogations

    A Confession Must Be Voluntary

    Any confession whether custodial or non-custodial must be shown to be voluntary before it is admissible.

    The prosecutor must prove the voluntariness of the confession by a preponderance of the evidence. This rule is known as the “ Brady Rule” from the case of Brady v. U.S., 90 S.Ct. 1463 (1920).

    Courts will look at all the facts and circumstances surrounding a confession to determine whether it was knowingly, intelligently, and freely given.

    The giving of Miranda rights does not automatically make a confession voluntary.

    The suspect must know the general nature of the crime involved before he can voluntarily confess to the crime. The use of force, threats, coercion, or improper promises will render a confession involuntary and therefore inadmissible. Likewise, confessions from suspects in great pain, in shock, under medication, etc., will be subject to attack on “voluntariness” grounds.

    The use of “strategic deception” or trickery during an interrogation does not automatically render a confession involuntary.

    On several occasions the U.S. Supreme Court has held a confession voluntary even though the police lied and, in one case, told a defendant that an accomplice had confessed and implicated the defendant; and in another case, told a defendant that his fingerprints had been found at the scene of the crime. The court said that deception is merely one element to consider in determining the voluntariness of the confession.

    The exact contours of this principle are still somewhat vague and the police will usually use it selectively and with discretion.

    Juvenile Interrogations

    In interrogations of juveniles the Colorado Supreme Court has noted that the absence of a parent, as required by the Children’s Code, “is but one factor” to be considered in deciding voluntariness. ( The Colorado Case of People, interest of T.C., 898 P.2d 20 (Colo. 95)).

    Only “Custodial Interrogation” Requires Miranda Warnings

    Any confessions that result from the custodial interrogation of a suspect must (in addition to being voluntary) have been preceded by proper Miranda warnings to be admissible.

    If the suspect is not in custody when he – she is being interrogated the Miranda rights need not be given. There is much case law on what constitutes these two terms. Miranda v. Arizona, 86 S.Ct. 1602 (1966).

    What Constitutes Custody

    Custody occurs when a person is taken into custody or otherwise deprived of his freedom of action in any significant way. Neither the police nor the suspect’s belief as to whether he was actually in custody is determinative of the issue.

    The Courts will decide whether a reasonable person would have reasonably believed that his freedom of action was significantly deprived under the circumstances. Courts will look very closely at all the circumstances to determine whether defendant was in custody.

    For instance, in deciding whether interrogation in a police car was custodial, the court noted that:

    (1) the defendant sat in the front passenger seat;

    (2) the doors were closed but unlocked: and

    (3) the air conditioner was running.

    (From the Colorado case of People v. Bookman, 646 P-2d 924 (Colo. 82)).

    Colorado courts have also ruled that retaining a person’s driver’s license or other form of identification may indicate custody. People v. Gutierrez, 596 P.2d 759 (Colo. 79).

    “Focus” of suspicion on the suspect also does not create “custody” by itself. A person’s status as a “suspect,” unless it is conveyed to him, is not a determinant of custody.

    The location of the interrogation is often a crucial factor. Generally, interrogations in a suspect’s own home or at his job are usually not custodial. However, other factors may make the interrogation “custodial.”

    Here are Examples of this Principle:

    Example 1:

    Defendant was a suspect in a felony menacing. Officers, who were on “friendly terms” with defendant, went to defendant’s home to talk with him about the incident. No Miranda warning was given. During the conversation, defendant turned over a weapon to the officers. Based upon statements defendant made, the officers arrested him.

    The trial court made detailed findings regarding these factors and determined that “from the overall totality of the circumstances, there was a (deprivation of freedom).” In particular the trial court noted: (1) the presence of two armed law enforcement officers in the defendant’s house for the purpose of talking to the defendant about a crime; (2) the fact that the deputy initiated the conversation; (3) the officer’s purpose of obtaining evidence against the defendant; (4) the deputy’s subtle coercive influence over the defendant as a friend; and (5) the relatively long twenty to thirty minute interrogation.

    The trial court ruled that the interrogation was therefore custodial and suppressed defendant’s statements because Miranda warnings were necessary. The Colorado Supreme Court upheld the trial court. It noted that the fact that a person is interrogated in his own home does not automatically make it non custodial. The Supreme Court also upheld the trial court’s suppression of the weapon turned over by defendant. The Court emphasized that, “When consent is given after an interrogation in violation of Miranda, the consent is likely to be constitutionally infirm, tainted by the unconstitutional interrogation. “[People v. Cleburn, 782 P.2d 784 (Colo. 89), cert denied, 110 S.Ct. 1959 (1990).

    Example 2:

    Officers went to LaFrankie’s place of employment to interview him about a theft. A senior manager contacted him and escorted him to the president’s office where the officers questioned him (without Miranda advisement) and allowed him to leave at the end of the interview. The Colorado Supreme Court ruled that this was custodial interrogation because: (1) defendant was contacted by a senior manager and escorted to the president’s office, (2) the door was closed during the interview, (3) defendant was never expressly told that he was free to leave, and (4) the officer used an “accusatory tone” during the questioning. People v. LaFrankie, 858 P.2d 702 (Colo. 92).

    On the other hand, interrogation at the station house is not automatically “custodial.” “The police should avoid all appearances of restricting freedom of movement of a suspect who voluntarily comes to the police station to talk to the police. Allowing the suspect to leave after the interview also helps show lack of custody. However, in two recent cases the Colorado Supreme Court has held that station house interviews were custodial even though the suspect was allowed to leave after the interview. In one case, the Court considered the “accusatory nature” of the questions in holding that there was custody [People v. Trujillo, 785 P.2d 1290 (Colo. 90)]. In the other case, the Court found custody based partially upon the “highly confrontational” interview [People v. Horn, 790 P.2d 816 (Colo. 90)]. Also, a station house interrogation of a juvenile was ruled “custodial” because, among other things, the officers had not told the suspect he was free to leave. People, Interest of T.C., 898 P.2d 20 (Colo. 95).

    Interviews with hospital patients are also not automatically “custodial.” Officers must avoid doing anything that indicates any restraint of the patient. The test is whether a reasonable person would feel deprived of freedom of action in any significant way. People v. DeBoer, 829 P.2d 447 (Colo. App. 91) and People v. Miller, 829 P.2d 443 (Colo. App. 91).

    Although jail/prison inmates are obviously in physical custody, the circumstances determine whether they are in “custody” for Miranda purposes. The main inquiry is whether the already incarcerated suspect is subjected to a change of conditions for the interrogation that resulted in “an added imposition on [the subject’s] freedom of movement.”

    Here is an additional Example of this Principle in the context of Juvenile Interrogations

    Detective’s phone call to a juvenile suspect, being held in a juvenile facility for unrelated charges, was not custodial interrogation and therefore did not require a Miranda warning or the presence of a parent/guardian. The telephone conversation was not custodial interrogation because the officer was not in the physical presence of the juvenile, and therefore could not exercise immediate control over the juvenile in such a way as to trigger Miranda concerns. The court also noted that in- person interrogations with a person, who is being detained in a facility for “unrelated matters”, is not automatically in “custody” for purposes of Miranda. Courts will look at the totality of the circumstances in deciding this issue. People, Interest of J.D., 989 P.2d 762 (Colo. 99)

    The time of the interrogation may also determine whether a suspect was in custody. Rousing a suspect at 4:00 a.m., even in his own home, for the purpose of interrogation may be held to be constructive custody.Orozco v. Texas, 89 S.Ct. 1095 (1969). One of the best ways of showing a court that the defendant was not in custody in a certain situation, is to let the defendant leave after the interrogation, even if he confessed. A warrant can then be obtained and an arrest made later. Of course, this should not be done if the defendant might flee the jurisdiction or destroy evidence.

    The courts have held that routine traffic stops do not require Miranda advisement. People v. Fury, 872 P.2d 1280 (Colo. App. 93). Berkemer v. McCarty, 104 S.Ct. 3138 (1984).

    The use of certain police methods and mannerisms are also important in determining custody. If the police and six officers surround a suspect in his own home, this is probably “constructive” custody. Likewise, if the police interrogation method becomes very persistent and accusatorial, the police might also be placing the suspect in “constructive” custody.

    The police should inform the suspect that he is not under arrest and that he is free to leave at any time. If the police actually allow the suspect to leave after talking to the police and then later obtain a warrant and arrest him, allowing him to leave is a strong argument against the assertion that he was in custody.

    The Colorado Supreme Court has ruled that “custody” is determined by the totality of the circumstances and that the courts should consider the following factors:

    • the time, place and purpose of the encounter;
    • the persons present during the interrogation;
    • the words spoken by the officer to the defendant,
    • the officer’s tone of voice and general demeanor;
    • the length and mood of the interrogation;
    • whether any limitation of movement or other form of restraint was placed on the defendant during the interrogation,
    • the officer’s response to any questions asked by the defendant,
    • whether directions were given to the defendant during the interrogation, and the defendant’s verbal or nonverbal response to such directions. People v. Thiret

    Here is an Example of this Principle of the application of this “test”

    The Colorado Supreme Court used it to determine that an interview of a defendant at a station house was not custodial, and therefore no Miranda advisement was required. The court looked at the “totality of the circumstances.” It noted that defendant was asked, not told, to come to the police station to further discuss the investigation. He drove himself to the station house and met his mother there. The court, after reviewing the video tape of the interview, noted that the officers were completely honest with defendant; they did nothing other than encourage him to tell the truth and warn him of the consequences of lying; the officers’ general tone of voice was “soft”; their general demeanor was polite; the words they spoke to defendant were “entirely reasonable;” there were no directions given to the defendant; there was no form of restraint placed upon defendant; and he was allowed to give his statement “largely in narrative from.” People v. Matheny, 46P.3d 453 (Colo.2002)

    What Constitutes Interrogation?

    Interrogation is much broader than formal verbal interrogation. It includes actions and words that are not necessarily intended to elicit incriminating responses but may, nonetheless, be held to be the “functional equivalent” of interrogation:

    1. Merely asking a suspect (who is in custody), “Do the police know why the police are here?” is interrogation. People v. Lowe, 616 P.2d 118 (Colo. 80).

    2. It is “interrogation” if it was reasonably foreseeable that the police words or actions were likely to elicit an incriminating response from a suspect with the police suspect’s mental and psychological characteristics. (Thus it was not interrogation, absent proof of intent to interrogate, for two officers to discuss between themselves the dangers of children finding a gun used in a robbery. The suspect (who overheard this conversation from the patrol car’s back seat and then directed officers to the location of the gun) was held not to have been “interrogated” [Rhode Island v. Innis, 100 S.Ct. 1682 (1980)].

    The use of trickery here should not be confused with the discussion above regarding trickery in the context of voluntariness. Here, the issue would be whether the trickery constituted interrogation, not whether it made the confession voluntary. The use of trickery here would probably be held to be interrogation and would therefore require that it be preceded by Miranda rights.

    Confronting a suspect with items of physical evidence might also constitute “interrogation” in the right circumstance.

    Mere silence by officer in response to suspect’s asking if he could explain was not interrogation. Therefore, subsequent statements by suspect while officer continued handcuffing him were admissible. People v. Sharpless, 807 P.2d 590 (Colo. 91).

    The Miranda Warnings

    If the police have custody and interrogation, the following warnings must have been given to the suspect before any confession will be admissible:

    You have the right to remain silent.

    Anything you say or do can and will be used against the police in a court of law.

    You have the right to talk to a lawyer and have him present with you while you are being questioned.

    If you cannot afford to hire a lawyer, one will be appointed to represent you before questioning, if you wish.

    You can decide at any time to exercise these rights and not answer any questions or make any statements.

    Waiver of Miranda Rights

    After the warning and in order to secure a waiver, the following questions should be asked and an affirmative reply secured to each question.

    Do the police understand each of these rights I have explained to the police?

    Having these rights in mind, do the police wish to talk to us now?

    A waiver of the Miranda Rights must be voluntary and therefore all of the factors discussed above pertaining to voluntariness are relevant to a determination as to whether a waiver was valid. The prosecutor has the burden of proving a voluntary waiver. Courts will indulge every reasonable presumption against waiver. People v. Hopkins, 774 P.2d 849 (Colo. 89).

    However, the Colorado Supreme Court held that based partially upon the general “speech patterns” of the suspect, a reasonable police officer would have considered a murder suspect’s statement (“[I] should wait, and I should talk to a lawyer…”) to be a clear “expression of a desire for the assistance of counsel.” The court said that “the import and effect of a suspect’s phraseology in requesting counsel, does not depend on the officer’s subjective preference for word choice.” “Suspects may not be legally sophisticated or paragons of clarity in their use of language.” Also, it was important to the court that the suspect made the statement at a “critical and early” point in the interrogation. People v. Romero, 953 P.2d 550 (Colo. 98).

    Courts have approved nonspecific waivers (e.g., “I might as well tell the police about it”) and non-verbal waivers (e.g., head nods and shrugs). People v. Ferran, 591 P.2d 1013 (Colo 78).

    A valid Miranda waiver must be

    (1) Voluntary [product of free and deliberate choice rather than intimidation, coercion, or deception] and

    (2) Knowing and intelligent [made with full awareness, both of the nature of the right being abandoned and the consequences of the decision to abandon it]. “Police misconduct test” only applies to first requirement. A statement can be suppressed even though voluntary, if waiver was not knowing and intelligent. People v. Jiminez, 863 P.2d 981 (Colo. 93).

    Not every “strategic deception” by a peace officer will invalidate an otherwise valid waiver. For Example the Colorado Supreme Court ruled that a defendant’s waiver of his/her Miranda rights is effective even if the police deliberately did not inform the defendant that they had an arrest warrant prior to his Miranda waiver.

    “No doubt the information would have been useful to [defendant] perhaps it might have affected his decision to confess. But we have never read the Constitution to require that police supply a suspect with a flow of information to help him calibrate his self-interest in deciding whether to speak or stand on his rights.”

    The court distinguished this case from cases where officers use “affirmative misrepresentations” to break down a defendant’s will. Here, the officer’s failure to provide information only affected the wisdom, and not the voluntariness, of the defendant’s waiver decision. “It is not required that a defendant knows all the circumstances which might affect his decision.” [People v. Pease, 934 P.2d 1374 (Colo. 97)]

    Termination of Interrogation After Suspect Asserts Miranda Rights

    Once a suspect has asserted his rights, all police- initiated questioning must cease. Edwards v. Arizona, 101 S.Ct. 1880 (1981).

    Further questioning can only take place if the suspect initiates the communications. If such a circumstance occurs and a suspect initiates the communications, it is very important for documentary purposes that the police tape record all the preliminary exchanges between the police and the suspect, otherwise, it will be very difficult in court to verify who actually initiated the communications.

    Questions by the suspect that are merely necessary inquiries arising out of the incidents of the custodial relationship do not amount to initiation of further conversation. However, a suspect, who has previously invoked his Fifth Amendment rights, asking “What is going to happen to me now?” has been held to show a willingness and desire for a generalized discussion about the investigation and was an initiation of further conversation that made later statement admissible. Oregon v. Bradshaw, 103 S.Ct. 2830 (1983).

    Police officers may attempt to clarify ambiguous assertions of rights by a suspect. In a case where a suspect being interrogated stated, “I’d rather not talk about that,” the Colorado Supreme Court stated, “Interrogating officers have an affirmative and emphatic duty to determine whether the suspect is in fact exercising his privilege against self-incrimination in all respects or is merely reluctant to answer particular questions.” People v. Spring, 713 P.2d 865 (Colo. 85). “Limited inquiry test” permits limited questions to clarify ambiguous statements regarding assertion of rights. People v. Kleber, 859 P.2d 1361 (Colo. 93).

    The U.S. Supreme Court has held that, after an initial advisement of rights, there is no requirement to “stop and/or clarify” after ambiguous requests for counsel. It is an objective test as to whether a reasonable officer would have thought suspect was requesting counsel. The burden is on the suspect to “clearly” and “affirmatively” request counsel. Davis v. U.S., 114 S.Ct. 2350 (1994). The court held that officers had no duty to “stop and clarify” after a suspect said, “Maybe I should talk to a lawyer.” The court noted that it was ambiguous as to whether the suspect was requesting a lawyer or merely making a comment.

    Subsequent Custodial Interrogation after Assertion/Attachment of Rights.

    Whether a suspect, who has previously asserted his rights, can subsequently be subjected to police- initiated custodial interrogation depends upon which particular rights have attached or been asserted.

    Prior Assertion of 5th Amendment Right to Silence

    A suspect who has previously asserted his 5th amendment right to silence can be subjected to subsequent police-initiated custodial interrogation as long as:

    (1) his right to cut-off further questioning was “scrupulously honored” at the time it was asserted;

    (2) there has been a “significant” intervening time period; and

    (3) the suspect was advised and made a valid waiver before the subsequent interrogation. Michigan v. Mosley, 96 S.Ct. 321 (1975).

    Here is an Example of this Principle:

    Defendant initially told officers he did not want to discuss the case and wrote “nope” on advisement form. The officers made no further effort to question him. During the subsequent 45-minute ride to jail, he was “very conversational.” Upon arrival, officers asked again if he wanted to talk.

    He agreed and (one hour and 40 minutes after initial refusal) was re advised and gave statement. The court of appeals held the subsequent statements admissible because officers had “scrupulously honored” defendant’s right to cut- off questioning when he initially said he did not want to talk. People v. Close, 867 P.2d 82 (Colo. App. 93).

    Prior Assertion of 5th Amendment Right to Counsel

    Suspects who have previously asserted their 5th Amendment right to counsel can be re-approached without the presence of an attorney and asked for a Miranda waiver after there has been a fourteen day break in custodial interrogation.

    For suspects who are jailed/imprisoned, although they may have been continually “incarcerated” for the fourteen day interval, they are not considered to have been in 5th amendment “custody” as long as they were returned to the general jail or prison population. There must be a new advisement and waiver prior to the interrogation. Maryland v. Shatzer, 130 S.Ct 1213 (2010).

    Prior Assertion/Attachment of 6th Amendment Right to Counsel

    The 6th amendment right to counsel is triggered by the “initiation of adversarial judicial criminal proceedings, whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.”

    If police initiate interrogation after a suspect’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that police- initiated interrogation is invalid unless counsel is present. Michigan v. Jackson, 106 S.Ct. 1404 (1986).

    However, despite the “triggering” of the 6th amendment right to counsel, the defendant must still make some assertion of a request for counsel. An indicted suspect, who does not have an attorney and has not asked for an attorney, may be subjected to police-initiated questioning after a valid Miranda warning and waiver. Patterson v. Illinois, 108 S.Ct. 2389 (1988).

    Police may “inquire” whether a suspect has previously invoked the right to counsel and whether he currently wishes to have counsel present during a police-initiated custodial interrogation. Montejo v. Louisiana, (09-8) 129 S. Ct. 2079 (2009)

    These 6th amendment rules only apply to custodial interrogation regarding the crimes that are charged or closely related to them. They do not apply to custodial interrogation regarding other uncharged crimes even if they are “intertwined” with the charged crimes. Test for whether the crimes are intertwined is whether elements of the crimes are different. Texas v. Cobb, 121 S.Ct 1335(2001)

    Here is an Example of this Principle:

    A robbery defendant appeared at bail hearing with attorney. Later, while still in custody, after being advised and waiving his right to counsel, officers interviewed him about a murder to which defendant confessed. Michigan v. Jackson was distinguished because it dealt with questioning about the charged crime. The court said the 6th amendment right to counsel is “offense specific.”

    Fifth amendment right to counsel and sixth amendment right to counsel are designed to protect different interests, and the assertion of one right does not assert the other. Therefore, defendant’s assertion of his 6th amendment-based right to counsel (by appearing in court with an attorney) was not also an assertion of his 5th amendment-based right to counsel for uncharged crimes. McNeil v. Wisconsin, 111 S.Ct. 2204 (1991).

    Miranda Right Only Covers “Testimonial” Evidence

    Miranda rights must only precede the taking of Fifth Amendment “testimonial” evidence. There is no requirement that Miranda rights be given prior to the taking of non-testimonial evidence. For this reason, the police do not have to give a suspect a Miranda advisement prior to requiring him to take a field sobriety test; obtaining handwriting or voice exemplars; conducting trace metal or gunpowder residue tests, fingerprints, saliva samples; or obtaining any other physical evidence from his body by non-intrusive means.

    The police must be careful in determining what constitutes “testimonial” evidence. Once a suspect invokes his Miranda rights, the police may not extract testimonial evidence from him “Testimonial” evidence is not just verbal, it can also be conduct.

    Here is an Example of this Principle:

    After arresting a murder suspect in his home the police tell him to put on the clothes he had on last night (the night of the murder). His act of identifying which clothes he had on is testimonial and will be suppressed unless he has previously been given his Miranda rights and waived such rights. Davis v. Isreal, 453 F.Supp 864 (E.D. Wisc 78).

    Volunteered Statements, General On- The-Scene, Booking, and Emergency Questioning Are Excluded From the Miranda Requirements

    Volunteered Statements

    The U.S. Supreme Court in Miranda noted that “volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today. “The police should note any spontaneous incriminating statements made by a suspect prior to being given his Miranda rights. A statement is not “volunteered” if it was made as a result of any prodding or encouragement from the police. The police should be very cautious of interrupting a volunteered statement.

    Once the police interrupt or begin to ask clarifying questions, then Miranda probably becomes applicable.

    General On-the-Scene, Booking, and Emergency Questioning

    Also, in Miranda, the court noted that “general on-the-scene questioning as to facts surrounding a crime, is not affected by our holding.” Because of this, the police usually do not have to be concerned with giving Miranda rights when the police first respond to a crime scene and attempt to find out what happened. In such situations, the coercive atmosphere inherent in custodial interrogation is not present. The Miranda decision, the court noted, was not intended to hamper the traditional function of police officers investigating a crime.

    “When an officer arrives at the scene of an accident or crime, or at the hospital where the parties have since moved, the officer may reasonably detain, and question people without such detention or inquiry rising to the level of a custodial interrogation.” People v. Rosales, 911 P.2d 644 (Colo. App. 95).

    The U.S. Supreme Court has also created a “public safety’’ exception to Miranda (e.g., on-the-scene questions directed towards the location of weapons or possible victims in need of medical care.) New York v. Quarles, 104 S.Ct. 2626 (1984).

    The U.S. Supreme Court ruled that the audio portion of a drunk driving suspect’s videotaped response to routine booking questions was non- testimonial and did not require prior Miranda warning when introduced to show the suspect’s slurred speech and lack of muscular coordination.

    However, the Court ruled that suspect’s response to the date of his sixth birthday was testimonial (because it gave rise to an incriminating inference of impaired mental faculties when suspect could not answer) and was suppressed because of a lack of a prior Miranda warning. Pennsylvania v. Munoz, 110 S.Ct. 2638 (1990).

    Here are Examples of this Principle:

    1. The police are dispatched to the scene of a shooting. A party opens the door and the police ask “Who was shot?” The party responds that it is the person lying on the bedroom floor. As the police proceed to the bedroom, the police ask “Who shot him?” The party responds, “I did.” This statement is admissible. People v. Mullins, 532 P-2d 733 (Colo. 75).

    2. After arresting and handcuffing a rape suspect, the police ask about the whereabouts of a weapon that the victim said he was carrying. The potential risk of someone else finding this weapon justifies the question and the retrieved weapon is admissible even though the suspect was not given his Miranda rights. New York v. Quarles, 104 S.Ct. 2626 (1984).

    Confessions Gained From An Illegal Arrest

    A confession obtained from a suspect who was illegally arrested is normally considered a product of the illegality (“fruit of the poisonous tree”) and therefore inadmissible. The giving of Miranda rights, alone, will not make such a confession voluntary and therefore admissible. However, such confessions are not always inadmissible.

    Courts will consider the following factors in deciding whether the confession was a product of the illegal arrest (no single fact is dispositive):

    1. Whether the statement was voluntary;

    2. Whether Miranda warnings were given;

    3. The lapse of time between the arrest and the confession;

    4. The presence of intervening circumstances between the arrest and the confession.

    5. The purpose and flagrancy of the official misconduct. [People v. Jones, 838 P.2d 797 (Colo. 92)]

    Confessions Obtained Before Suspect Is Taken Before A Judge

    As discussed in the Arrest section, Colorado Rule of Criminal Procedure 5 (a) (1) requires that an arrested person be taken before the nearest available judge without unnecessary delay. An unnecessary delay on the part of law enforcement could affect the admissibility of a confession gained in the interim. On the other hand, if a suspect has been taken before a judge and advised, this would be a major factor in asserting the admissibility of any subsequent confession.

    Failure to take an arrestee before the nearest available county or district court “without unnecessary delay” after arrest, as required in Criminal Procedure Rule 5(a)(1), does not automatically make subsequent statements inadmissible.

    The Courts use a two-pronged test requiring defendants to show:

    (1) that the delay was unnecessary and

    (2) that some prejudice resulted therefrom.

    A “necessary” delay is one reasonably related to the administrative process attendant upon the arrest of an accused. Such delays are usually associated with fingerprinting, photographing, taking inventory of personal belongings, preparing necessary charging documents and reports, and other legitimate administrative procedures.

    However, where the delay is caused by the decision of law enforcement officers to conduct a custodial interrogation of the defendant before presenting him or her to a judicial officer for a proper advisement of rights, such a delay is not a “necessary” delay within the meaning Rule 5.

    Also, repeated Miranda warnings will not substitute for the speedy presentment requirements of Rule 5. However, in this case, defendant’s confession was ruled admissible, because defendant did not prove that the delay in taking him before a judge, for a Rule 5 advisement, induced or caused him to make the incriminating statements. People v. Roybal, 55 P.3d 144 (Colo. App. 2001)

    Interrogating a Represented, Suspect Outside the Presence of His Lawyer

    Once the police are aware (or should be aware) that a charged suspect is represented by an attorney, his sixth amendment rights are applicable. The police should not interview him about the crime he is charged with without his attorney being present. Under Colorado law it is possible for a suspect to initiate a conversation and waive his right to counsel (without counsel being present) but such a waiver would certainly be looked at very closely by the courts.

    There is often confusion over whether a suspect, who has an attorney or has requested one, may be interviewed about other unrelated and uncharged crimes. While the 6th Amendment prevents police officers from questioning a charged defendant, who has retained counsel, from questioning the defendant about the charged crimes without counsel present, officers may still question the defendant, outside the presence of his attorney, about “different” non- charged crimes. Crimes are “different,” even if they are “intertwined,” when one requires proof of some element that the other one does not. Texas v. Cobb, 121 S.Ct. 1335 (2001)

    The U.S. Supreme Court has held that a Fifth Amendment request for counsel bars any further police initiated counselless interrogation about unrelated, uncharged crimes.

    Arizona v. Roberson, 108 S.Ct. 2093 (1988) and Minnick v. Mississippi, 111 S.Ct. 486 (1990)]


    However, the Court has also ruled that a suspect who previously asserted his Sixth Amendment right to counsel (by appearing in court with an attorney) may be subsequently questioned (without the attorney present) for unrelated, uncharged crimes. The Court noted that the Sixth Amendment right to counsel is offense-specific (so it does not apply to other prosecutions) but the Fifth Amendment right to counsel is not (so it does apply to other prosecutions). McNeil v. Wisconsin, 111 S.Ct. 2204 (1991).

    This is a complex issue and it is critical that the police know the facts involved before the police question a suspect about unrelated, uncharged crimes. The police need to know whether the suspect has previously asserted his Sixth Amendment right to counsel (by appearing with an attorney) or his Fifth Amendment right to counsel (by requesting an attorney during questioning).

    The Colorado Supreme Court has ruled that a defendant who has been released from custody may be interviewed later despite his previous request for counsel. The case involved a suspect who requested counsel while being interrogated. The suspect was released and then seven weeks later, after being re advised of his rights, was interrogated. The Court upheld the admission of the statements because there was no indication that the release of the defendant was contrived, pre textual, or done in bad faith. People v. Trujillo, 773 P.2d 1086 (Colo. 89).

    The police should also always be alert to whether a suspect has asserted his right to counsel as opposed to his right to remain silent. If a suspect has not asserted his right to counsel, it may be appropriate to interview him about other unrelated crimes if it is unclear whether his prior assertion of his right to remain silent applies only to the crimes he is charged with.

    It is the Sixth Amendment right to counsel that also prevents the police from using a cell mate of an in custody suspect to obtain incriminating statements from the suspect about the charged crime. However, it does not prevent using the cellmate to obtain information about uncharged crimes. Illinois v. Perkins, 110 S.Ct. 2394 (1990).

    Confessions obtained under any of these circumstances would still have to meet normal fifth amendment standards for voluntariness.

    Duty To Admit Attorney During In- Custody Interrogation

    If the police are interrogating a suspect and an attorney shows up and requests to speak with the suspect, whether the police admit the attorney depends upon the circumstances involved.

    The Colorado Court of Appeals has held that a suspect cannot knowingly and intelligently waive his right to counsel if he was not informed of the fact that an attorney, whom he requested his brother to get for him, had requested to see him.

    The Court held that the burden is on the police in these cases to establish procedures to ensure that an attorney requesting to see an in custody suspect may do so without unreasonable delay. An agency, as a whole, is charged with the knowledge of the whereabouts of a suspect being subject to in custody interrogation. People v. Harris, 703 P.2d 667 (Colo. App. 85).

    However, subsequent to this decision, the U.S. Supreme Court held that the failure to inform a suspect that an attorney retained for the suspect is available and desires to meet with the suspect does not affect the validity of the suspect’s otherwise voluntary, knowing, and intelligent waiver of 5th amendment rights. Moran v. Burbine, 106 S.Ct. 1135 (1986).

    The Colorado Court of Appeals (citing Burbine, without overruling Harris) held that, in certain cases, uncharged arrestees can validly waive their 5th amendment rights during an interrogation even if they are not informed that an attorney is demanding to see them. A suspect’s decision to waive his rights does not become involuntary just because he does not know that there is an attorney demanding to see him. The court held that there was no due process violation because: “[The attorneys who sought access to defendant were strangers to defendant.

    When defendant was being interrogated, they had neither been appointed by the court nor requested by defendant or his family or friends to represent defendant. Further, the police at no time conveyed any false information to the attorneys, and their refusal to allow them access to defendant was based upon advice from the District Attorney’s office.]” C.R.S. 16-3-402 (3) (b), which permits a public defender to determine if any person in custody has been taken before a judge, is contingent upon “due regard for reasonable law enforcement administrative procedures.” The court said, “the interrogation in question immediately after booking, did not fall outside reasonable law enforcement administrative procedures.” People v. Page, 907 P.2d 624 (Colo. App. 95).

    The court in Page did not mention that C.R.S. 16- 3-404 also specifies that officers have a duty to admit attorneys to consult with persons they have in custody. They are subject to a fine of $100 to $1,000 if they fail to do so.

    Inadmissible Confession May Still Be Used for Impeachment Purposes

    A confession that is not otherwise admissible may still be admissible for impeachment purposes ‘in certain circumstances if the defendant takes the stand at trial. However, in such cases, the court must first determine that the statement was voluntarily made even though there may have been a Miranda advisement violation. Harris v. New York, 91 S.Ct. 643 (1971). For this reason, the police should document all statements made by a suspect even though the police feel there might have been an illegal arrest or a Miranda procedure violation.

    Custodial Interrogation of Juveniles

    As mentioned in the Arrest section, the Colorado Children’s Code [C.R.S. 19-2-511] provides special rules for custodial interrogations of juveniles. Pursuant to that statute, a confession from anyone under 18 years old is not admissible unless a parent, guardian, legal custodian, or lawyer was present during the interrogation and that person had also been advised of the juvenile’s Miranda rights. C.R.S. 19- 2-511 (5) permits parents/guardians and the juvenile to expressly waive the right of the parent/guardian to be present.

    Such express waiver must be in writing. The statute specifies that neither a county department of social services nor a department of human services can waive the presence requirement if they are a juvenile’s legal/physical custodian.

    This statute does not apply in non-custodial situations. People in the interest of R.A., 937 P.2d 731 (Colo. 97).

    Age is a factor to consider in determining if a juvenile is in custody, but custody does not necessarily exist simply because a juvenile is afraid and ignorant of his or her “ability to cease the questioning and leave.” People in the interest of J.C., 844 P.2d 1185 (Colo. 1993).

    Questioning a 12- year-old suspect over the telephone has been ruled to be non custodial. People in the interest of J.C., 844 P.2d 1185 (Colo. 93). If the suspect is now over 18, he may be questioned as an adult.

    Improper To Comment In Court On a Defendant’s Assertion of His Right to Remain Silent

    Except in very limited circumstances, it is error to comment on the witness stand that a defendant exercised his right to remain silent. This can be grounds for a mistrial or reversal in a jury trial. The police should never make such a statement in court without prior consultation with the prosecutor. People v. Herr, 868 P.2d 112 (Colo. App. 93); People v. Kruse, 839 P.2d I (Colo. 92).

    Improper to Interrogate During Execution of Rule 41.1 Non-Testimonial Identification Order

    It constitutes an impermissible expansion of the scope of a non-testimonial identification order if the police interrogate a person during the execution of the order. The fact that the suspect might have waived his Miranda rights prior to this interrogation does not matter. People v. Harris, 762 P.2d 651 (Colo. 88).

    However, after a suspect has been identified in a 41.1 procedure and there is therefore probable cause to arrest, the police may interrogate a suspect. People v. Jones, 786 P.2d 481 (Colo. App. 89).

    Immunity Issues

    Under C.R.S. 13-90-118 only a district attorney, attorney general, or special prosecutor can “request” a court to grant a witness immunity from using their testimony against them. This issue is usually involved in attempting to get co-defendants to testify against other defendants.

    Although peace officers do not have this authority, care should be taken because any immunity promises by the officers might be held to be binding on the district attorney. People v. Manning, 672 P.2d 499 (Colo. 83). :, 685 P.2d 193 (Colo. 84). 😕

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