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Date: Fri, 29 Aug 1997 21:10:15 -0700
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From: Paul Andrew Mitchell [address in tool bar]
Subject: SLS: Intentional Violations of Miranda, written by FBI Academy
  Instructor
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We submitted this essay into evidence
in the grand jury case last year.

The pleadings which I wrote will be
loaded into the Supreme Law Library
just as soon as humanly possible.

Look for:  In Re Grand Jury Subpoena
Served on New Life Health Center Company.

/s/ Paul Mitchell
http://www.supremelaw.com


<snip>
>
>Excerpted FBI Law Enforcement Bulletin August, 1997
>
>http://www.fbi.gov/leb/aug976.htm
>
>
>
>Intentional Violations of Miranda: A Strategy for Liability By Kimberly
>A.
>Crawford, J.D.
>
>Intentional Miranda violations may jeopardize cases and expose
>investigators and agencies to civil suits.
>
>Special Agent Crawford is a legal instructor at the FBI Academy.
>
>Over three decades ago, in Miranda v. Arizona,1 the United States Supreme
>Court held that custodial interrogations create a psychologically
>compelling atmosphere that countermands the Fifth Amendment protection
>against compelled self- incrimination.2 Accordingly, the Court developed
>the now-familiar Miranda warnings as a means of reducing the compulsion
>attendant in custodial interrogations.
>
>In the years that followed, the Court handed down numerous rulings
>purported to clarify and refine the Miranda decision.3 The practical
>result
>of these rulings is that there now exists a complex legal maze that
>investigators must negotiate when attempting to interrogate custodial
>subjects. Occasionally, investigators fail, either accidentally or
>intentionally, to negotiate the maze properly.
>
>Accidental failures to negotiate the Miranda maze have resulted in the
>suppression of evidence in subsequent criminal cases,4 but generally have
>not resulted in any successful civil suits against law enforcement
>officers
>or agencies.5 However, civil suits alleging intentional failures may have
>considerably greater potential for success in the courts.6
>
>This article reviews the cases that, by limiting the legal consequences
>of
>Miranda violations, may have encouraged some law enforcement officers to
>develop interrogation strategies that incorporate intentional violations
>of
>the Miranda rule. The article also examines the potential civil liability
>for following such strategies.
>
>Limitations on the Effects of Miranda Violations
>
>The Supreme Court has recognized that Miranda warnings are not
>constitutionally mandated.7 Rather, the warnings are a protective measure
>designed to safeguard the Fifth Amendment right against compelled
>self-incrimination. Consequently, violations of the Miranda rule do not
>carry with them the same force and effect as a constitutional violation.
>Statements obtained in violation of Miranda have a variety of lawful
>uses.
>
>For example, in Michigan v. Tucker,8 the Supreme Court held that a
>Miranda
>violation that resulted in the identification of a witness did not
>preclude
>the government from calling that witness to testify at trial. The witness
>in question was named in an alibi provided by the defendant during an
>interrogation session that followed an incomplete advice of rights.9 When
>contacted by the police, the witness not only failed to corroborate the
>defendant's alibi but also provided additional damaging information. The
>defendant subsequently sought to have the witness' testimony excluded at
>trial on the grounds that the identity of the witness was discovered as a
>result of the violation of Miranda. The Supreme Court, however, concluded
>that although statements taken without benefit of full Miranda warnings
>generally could not be admitted at trial, some acceptable uses of those
>statements exist.10 Identification of witnesses is one such acceptable
>use.
>
>In Oregon v. Elstad,11 the Supreme Court similarly held that a second
>statement obtained from a custodial suspect following one taken in
>violation of Miranda is not necessarily a fruit of the poisonous tree and
>may be used at trial. In Elstad, the defendant made incriminating
>statements during an interrogation that was later determined to
>contravene
>Miranda. The defendant repeated those statements and gave a detailed
>confession during a later interrogation session conducted in full
>compliance with Miranda. The defense subsequently argued that because the
>"cat was let out of the bag" during the initial unlawful interrogation,
>the
>statement provided during the later interrogation was tainted by the
>original illegality and, therefore, inadmissible. In rejecting this
>argument, the Supreme Court found that the goals of Miranda were
>satisfied
>by the suppression of the unwarned statement and that "no further purpose
>is served by imputing 'taint' to subsequent statements"12 lawfully
>obtained.
>
>Finally, in Harris v. New York13 and Oregon v. Hass,14 the Supreme Court
>concluded that statements taken in violation of Miranda may be used for
>impeachment purposes. In both cases, defendants had given statements that
>could not be used in the government's case in chief because of technical
>violations of Miranda. In order to preclude defendants from falsifying
>testimony with impunity, however, the Court held that the tainted
>statements could be used to impeach the defendants when they testified
>inconsistently at trial.
>
>A Strategy of Intentional Violations
>
>These limitations on the effects of Miranda have encouraged some law
>enforcement officers to conclude that they have "little to lose and
>perhaps
>something to gain"15 by disregarding the Miranda rule. When custodial
>suspects invoke their Miranda right to counsel, officers know they cannot
>lawfully continue to interrogate those suspects until defense attorneys
>are
>present.16 Recognizing that the chances of obtaining incriminating
>information from counseled suspects are relatively remote, some law
>enforcement officers may choose to ignore invocations of the right to
>counsel and continue to interrogate suspects with the intention of
>gaining
>witness information or impeachment material. At the very least, officers
>may continue questioning in an effort to "let the cat out of the bag"
>with
>the hope of gaining admissible statements at a later date.
>
>The Potential for Civil Liability
>
>Although interrogation strategies that ignore invocations of Miranda
>rights
>clearly defy the mandates of the Supreme Court, until recently, courts
>had
>not presented any compelling legal reasons to avoid the technique. The
>variety of uses for statements taken in violation of Miranda made the
>technique advantageous in criminal prosecutions, and there was no
>precedent
>for holding law enforcement offi-cers or departments civilly liable for
>the
>intentional violation of Miranda rights.
>
>In the past, officers sued in federal court pursuant to Title 42 United
>States Code (U.S.C.) 1983, or the cause of action created in Bivens v.
>Six
>Unknown Federal Narcotics Agents,17 could easily defend claims of
>liability
>based on alleged violations of Miranda. Both Section 1983 and Bivens
>actions require that plaintiffs prove that law enforcement officers
>deprived claimants of their federal constitutional or statutory rights.
>Because the Supreme Court has characterized the Miranda protections as
>prophylactic and not prescribed by either the Constitution or federal
>statute, virtually every court of appeals that has confronted the issue
>has
>held that no actionable civil liability claim results from a violation of
>those protections.18
>
>The unanimous fashion with which the appellate courts have handled civil
>suits against law enforcement officers alleging failures to comply with
>Miranda has one notable exception. In Cooper v. Dupnik,19 the United
>States
>Court of Appeals for the Ninth Circuit held that intentional violations
>of
>Miranda may result in law enforcement officers' being held personally
>liable for depriving individuals of either their Fifth Amendment
>protection
>against compelled self-incrimination or the constitutional guarantee of
>due
>process.
>
>Liability Under Self-Incrimination Clause
>
>In Cooper, local law enforcement officers in the Tucson, Arizona, area
>formed a task force to investigate a series of rapes, robberies, and
>kidnappings. Officers suspected that one person was responsible for the
>vast majority of the offenses under investigation and dubbed the unknown
>suspect the "Prime Time Rapist." Even before a suspect was identified,
>the
>task force formed an interrogation strategy and selected the officer who
>would carry it out.
>
>The planned interrogation strategy called for a full advice of rights
>prior
>to interrogation, but in the event of a Miranda invocation, interrogation
>would continue until a confession was obtained. Although the framers of
>the
>strategy knew any confession generated by this approach would be
>inadmissible in the government's case in chief, they hoped to get
>impeachment material that would inhibit the defendant from taking the
>stand
>and claiming his innocence or pursuing an insanity defense.
>
>When Michael Cooper was mistakenly identified as a suspect in the case,
>he
>was arrested, advised of his rights, and, in accordance with the
>preplanned
>strategy, questioned at length, despite numerous invocations of the
>rights
>to silence and counsel. When the interrogation yielded no significant
>results and the mistakes leading to his identification as a suspect
>surfaced, Cooper was released from custody and never prosecuted.
>
>Cooper subsequently filed a Section 1983 action against several of the
>law
>enforcement officers involved in his arrest and interrogation, alleging
>numerous violations of his constitutional rights.20 After a hearing on
>the
>motions for summary judgment filed by the defendants, the district court
>dismissed a majority of Cooper's claims. The claims that survived
>centered
>around the in-tentional violation of Cooper's Miranda rights.
>
>On appeal, the defense advanced the time-tested argument that the Miranda
>safeguards are not constitutionally mandated and, therefore, cannot
>support
>a claim under Section 1983. The court of appeals initially agreed with
>this
>argument and dismissed Cooper's remaining claims.21 However, after
>securing
>a rehearing by the entire panel of the appellate court, Cooper was
>successful in having his Miranda claims reinstated.
>
>The court's reinstatement of Cooper's Miranda claims was based largely on
>the intentional nature of the violations and the coerciveness of the
>interrogation that followed. The court found that the blatant refusal to
>honor Cooper's asserted rights generated a feeling of helplessness in
>Cooper that was exacerbated by the hours of "harsh and unrelenting"22
>questioning that followed. According to the court, the result of this
>psychological gamesmanship was that Cooper was compelled to make
>statements
>to the interrogators.23 Although these statements were never used against
>Cooper, the court found that the Fifth Amendment protection against
>self-incrimination that underlies Miranda had been in-fringed by the mere
>fact that Cooper was coerced into making involuntary statements during
>the
>custodial interrogation.
>
>The court in Cooper made clear that it was not creating a cause of action
>for technical violations of Miranda.24 "Where police officers continue to
>talk to a suspect after he asserts his rights and where they do so in a
>benign way, without coer-cion or tactics that compel him to speak,"25 no
>successful Section 1983 action should result. However, the court made it
>equally clear that intentional violations of Miranda would be viewed as a
>factor in determining whether "coercion or tactics" compelled custodial
>subjects to speak.
>
>Under this analysis, an officer might conclude that only those
>intentional
>violations that contribute to the procuring of involuntary statements are
>actionable under Section 1983. However, such a reading of the court's
>decision in Cooper is misleading since the court also offered an
>alternative basis for liability.
>
>Liability Under Due Process Clause
>
>The door that was left open under the Fifth Amendment self-incrimination
>analysis in Cooper was thereafter closed when the court considered the
>due
>process implications of intentional violations of Miranda. Although never
>raised by Cooper, the court gratuitously addressed the issue of whether
>the
>intentional disregard for the Supreme Court rule in Miranda shocked the
>conscience of the court and, thus, constituted a violation of the due
>process protection. In Rochin v. California,26 the Supreme Court
>considered
>the lawfulness of a highly intrusive, warrantless search of an
>individual.
>In condemning the action, the Court held that the search "offended those
>canons of decency and fairness which express the notions of justice of
>English-speaking peoples even toward those charged with the most heinous
>offenses"27 and "shocked the conscience of the court."28 Since Rochin,
>the
>measure for determining violations of the Fifth Amendment guarantee of
>due
>process has been whether government action "shocks the conscience of the
>court."
>
>Applying this standard of review to the facts in Cooper, the court
>concluded that the intentional nature of the Miranda violation
>contributed
>greatly to its finding that the government conduct was shocking to the
>conscience. Particularly offensive to the court was the government's
>stated
>purpose of obtaining a statement that would keep Cooper from testifying
>on
>his own behalf or asserting the insanity defense. According to the court,
>"It is proper to anticipate defenses and to work vigorously to meet them.
>But when the methods chosen to gather such evidence and information are
>deliberately unlawful and flout the Constitution, the legitimacy is
>lost."29 The court's finding that the intentional violation of Miranda
>violated Cooper's right to due process may have a far greater impact on
>law
>enforcement interrogation practices than its holding that the protection
>against compelled self-incrimination was infringed. As previously noted,
>the court's finding of a self-incrimination infraction resulted from the
>intentional violation being combined with coercive interrogation to
>produce
>a compelled statement. Under the court's due process analysis, however,
>Section 1983 liability for government conduct deemed shocking to the
>conscience could be based solely on a preplanned strategy to violate
>Miranda intentionally even though no coercive interrogation took place.
>
>Conclusion
>
>Although Cooper is the only federal court of appeals decision thus far to
>hold that intentional violations of Miranda give rise to a civil claim
>under Section 1983, law enforcement officers should be aware that the
>precedent has been set. This precedent was subsequently followed in
>California Attorneys for Criminal Justice v. Butts,30 when the district
>court relied on the decision in Cooper to hold that an alleged policy to
>disregard invocations of Miranda rights could support a claim under
>Section
>1983.
>
>Because the argument that intentional violations of Miranda contravene
>the
>protections of the Constitution has met with success in these cases, it
>is
>likely that plaintiffs will raise the same argument in other courts.
>Although other appellate courts may refuse to adopt the rationale
>advanced
>in Cooper, law enforcement officers should weigh carefully the
>possibility
>of civil suit and consult with a departmental legal advisor prior to
>implementing any interrogation strategies that call for intentional
>Miranda
>violations.
>
>Endnotes
>1 384 U.S. 436 (1966).
>2 The Fifth Amendment to the U.S. Constitution provides in pertinent part
>that "no person...shall be compelled in any criminal case to be a witness
>against himself...." 3 See, e.g., Michigan v. Mosley, 423 U.S. 96 (1975)
>(interpreting the invocation of the right to silence); Edwards v.
>Arizona,
>451 U.S. 477 (1981) (interpreting the invocation of the right to
>counsel);
>Minnick v. Mississippi, 111 S. Ct. 486 (1990) (further interpreting the
>invocation of the right to counsel); Davis v. United States, 114 S. Ct.
>2350 (1994) (determining the clarity necessary for an invocation of the
>right to counsel). 4 Miranda, 384 U.S. at 479 (evidence obtained in
>violation of Miranda is generally inadmissible).
>5 See Mahan v. Plymouth County House of Corrections, 64 F.3d 14 (1st.
>Cir.
>1995) "Every court of appeals which has spoken to this matter in similar
>circumstances has held that no Section 1983 claim lay." Id. at 17.
>6 See Cooper v. Dupnik, 963 F.2d 1229 (9th Cir. 1992) (en banc), and
>California Attorneys for Criminal Justice, et al., v. Butts, 922 F. Supp.
>327 (C.D. Calif. 1990). 7 Michigan v. Tucker, 417 U.S. 433 (1974). 8
>Ibid.
>9 The interrogation in Tucker preceded the Court's decision in Miranda.
>The
>defendant was advised of his right to silence and counsel but was not
>told
>of the availability of appointed counsel.
>10 The Court stated that although Tucker was able to block the admission
>of
>his own statement, it did not "believe that it requires the prosecution
>to
>refrain from all use of those statements. 417 U.S. at 452.
>11 105 S. Ct. 1285 (1985).
>12 Id. at 1298.
>13 401 U.S. 222 (1971).
>14 420 U.S. 714 (1975).
>15 Id. at 723.
>16 See Minnick v. Mississippi, 111 S. Ct. 486 (1990). 17 102 S.Ct. 2727
>(1982).
>
>18 See, e.g., Mahan v. Plymouth County House of Corrections, 64 F.3d 14
>(1st Cir. 1995) and cases cited therein.
>19 963 F.2d 1220 (9th Cir. 1992) (en banc). 20 Cooper claimed a denial of
>his right to counsel and silence, false arrest, false imprisonment,
>improper training and procedures, injury to reputation and property
>interest, invasion of privacy, illegal search and seizure, and
>conspiracy.
>21 924 F.2d 1520 (9th Cir. 1991).
>22 963 F.2d at 1243.
>23 Cooper never retreated from his claims of innocence but did make some
>statements that may have been slightly damaging had the criminal case
>gone
>to trial. 24 963 F.2d at 1243-44.
>25 Id.
>26 342 U.S. 165 (1952).
>27 Id. at 169.
>28 Ibid.
>29 963 F.2d at 1250.
>30 922 F. Supp. 327 (C.D. Calif. 1996).
>Law enforcement officers of other than federal jurisdiction who are
>interested in this article should consult their legal advisors. Some
>police
>procedures ruled permissible under federal constitutional law are of
>questionable legality under state law or are not permitted at all.
>
>
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========================================================================
Paul Andrew Mitchell                 : Counselor at Law, federal witness
B.A., Political Science, UCLA;  M.S., Public Administration, U.C. Irvine

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