USA v. Michael S. Slaight.  No. 10-1443.

The opinion of the court was delivered by: Posner, Circuit Judge.

The defendant pleaded guilty to receipt and possession of child pornography shipped in interstate or foreign commerce, subject to a right to appeal the denial of his motion to suppress incriminating statements that he had made when questioned by federal officers at a police station.

The Miranda rule forbids questioning a person who is in custody unless he is first told that he has certain rights, such as a right to remain silent. If the rule is violated, the answers to the questions asked him are inadmissible in evidence. Police sometimes are restive under the restraints imposed by the rule and seek to circumvent it by avoiding the appearance of custody since the rule does not apply to non-custodial interrogations.

 One police manual advises that "if . . . the subject appears to be uncooperative and not likely to waive [his Miranda rights], consider taking the coerciveness (i.e., the 'custody') out of the interrogation by simply informing him that he is not under arrest . . . , when practical to do so under the circumstances, and interview the subject without a Miranda admonishment and waiver."

In the present case, federal law enforcement officers in Rock Island, Illinois, assisted by local police, made ingenious, pertinacious, but ultimately (as it seems to us) transparent efforts to disguise a custodial interrogation as non-custodial.

Searching pornographic peer-to-peer sites on the Internet, federal agents discovered that Michael Slaight of Rock Island had downloaded child pornography to his computer in violation of federal law. They obtained a warrant to seize and search the computer, which they assumed correctly was in his home.

They could easily have obtained an arrest warrant as well-they had ample probable cause to believe he had violated federal law. But had they arrested him they would have had to give him the Miranda warnings before questioning him; and the assistant U.S. attorney who argued for the government on appeal acknowledged forthrightly that the officers wanted to question Slaight without giving him the warnings.

The particular admission that they wanted to extract from him was that no one besides himself had had access to his computer. That possibility was the one chink in an otherwise airtight case.

At 7:45 a.m. one morning in March, nine (possibly ten) federal and local officers arrived at Slaight's home. They knocked on the door and when no one responded they forced it open with a battering ram and entered the house with drawn guns, including assault rifles. They found Slaight in the house, together with a woman. 

The police testified at the suppression hearing that they had planned to interview him at his house. We find that hard to believe. They had already reserved a tiny windowless interview room at the police station for interviewing him. At the suppression hearing the police gave implausible reasons for not interviewing him at his home, and false testimony about his being free to leave the tiny room.

The officers did not command Slaight to come with them to the police station. They merely told him they'd prefer to interview him there.  He went with two of the officers in their car and found himself in the tiny interview room in the police station.  The room's dimensions are not in the record, but the surveillance video of the interrogation makes clear that the room was minute. One officer testified that it was eight feet by eight feet, another that it was five by seven.

The police repeatedly told Straight that he was free to leave.  To leave the interview room he would have had to brush by one of the officers, whose seat was so close to the door that the officer might have had to move his chair to allow Slaight to exit without touching him.

The interview lasted an hour. The interviewing officer plied Slaight with questions, and admitted at the suppression hearing that his goal was to get Slaight to incriminate himself. He wasn't trying to determine whether Slaight had committed a crime; he knew he had; he just wanted to tie up a possible loose end.

Toward the end of the interview Slaight asked to be permitted to leave the room to smoke a cigarette. The request was refused; and later when the officers left the room for forty minutes to find out what had been discovered in Slaight's computer they locked him in.

Custody for Miranda purposes is a state of mind. When police create a situation in which a suspect reasonably does not believe that he is free to escape their clutches, he is in custody and, regardless of their intentions entitled to the Miranda warnings. United States v. Stewart, 536 F.3d 714, 720 (7th Cir. 2008). That is what the police in this case did. They made a show of force by arriving at Slaight's house en masse.

We are not disposed to question the safety measures that police employ when entering a house to serve a search warrant. The measures taken in this instance seem excessive, but we withhold judgment. What is undeniable is that the presence of overwhelming armed force in the small house could not have failed to intimidate the occupants.

They didn't want to conduct the interview in his home because he would be in familiar surroundings and feel less compulsion to answer questions put to him, so they persuaded him to come to the police station and arranged to interview him in the claustrophobic setting of a windowless room the size of a bathroom. Anyone in his situation would have thought himself in custody.

The judge gave no weight to the other evidence that we have reviewed, evidence which shows that a "reasonable" person in Slaight's position (which just means the average person, as distinct from someone of abnormal timidity, United States v. Notorianni, 729 F.2d 520, 522 (7th Cir. 1984)) would have thought himself under arrest. And being polite to a suspect questioned in a police station and telling him repeatedly that he's free to end the questioning and leave do not create a safe harbor for police who would prefer to give Miranda warnings after the suspect has confessed rather than before. United States v. Craighead, 539 F.3d 1079, 1080 (9th Cir. 2008); United States v. Colonna, 511 F.3d 431, 435 (4th Cir. 2007).

The facts that we have recited-none questioned by the district judge- persuade us that the average person in Slaight's position would not have felt free to leave the interview room even if (a closer question) that average person would have felt free to refuse the invitation to go to the police station for an interview. 

The key facts are the show of force at Slaight's home, the protracted questioning of him in the claustrophobic setting of the police station's Lilliputian interview room, and the more than likelihood that he would be formally placed under arrest if he tried to leave because the government already had so much evidence against him. These facts are incontrovertible and show that the average person in Slaight's position would have thought himself in custody.

Any other conclusion would leave Miranda in tatters.

REVERSED

For the full opinions visit the 7th Circuit Court of Appeals Web Site

For more about Chicago Criminal Defense Attorney Michael J. Petro, visit www.mjpetro.com

 

 

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