DCCA: Social security numbers may fall within Miranda’s “routine booking exception”; the government need not prove an unregistered firearm is not antique unless the record suggests that it is.

(Image of Social Security Cards from Wikimedia Commons)

Toler v. United States (decided December 20, 2018)

Players: Associate Judges Beckwith and McLeese, Senior Judge Steadman. Opinion by Judge Steadman. Ian A. Willams for Mr. Toler. Trial Judge: Hon. Maribeth Raffinan.

Facts: While executing a search warrant on Mr. Toler’s apartment, members of the Gun Recovery Unit handcuffed him and, without obtaining a waiver of his Miranda rights, asked for his name, date of birth, phone number, and social security number. Mr. Toler provided this information and volunteered that he was a former U.S. Marine. During their search, officers seized three firearms, assorted ammunition, and Mr. Toler’s apartment lease. An indictment later charged him with, inter alia, possession of an unregistered firearm and unlawful possession of a firearm by a person previously convicted of a crime punishable by more than one year of imprisonment. A jury found Toler guilty of the latter offense, based on his un-Mirandized statements to police and a certified copy of a U.S. Marine Corps court martial conviction, stating that someone with the name and social security number that Toler provided to police had been convicted of a crime punishable by more than one year imprisonment. The same name and social security number also appeared on the lease seized from Mr. Toler’s apartment.

Issue 1: Whether the social security number provided by Mr. Toler was subject to suppression absent a valid waiver of his Miranda rights?

Holding: No. Miranda only applies to interrogation, which includes express questioning and words or actions reasonably likely to elicit an incriminating response but excludes “routine booking questions,” such as those related to identity. Like name and date of birth, social security number is “a routine means of identifying oneself.” Slip Op. at 8. Since questioning is allowed as to these other identifiers, “it is difficult to see any meaningful distinction that would generally prohibit a request for a social security number.” Id. at 8-9. While such questions may trigger Miranda if they are “reasonably likely to elicit an incriminating response,” the question here does not fall into that category. Id. at 9. That the question was asked on the scene rather than at booking, without more, does not transform it into interrogation. See Jones v. United States, 779 A.2d 277 (D.C. 2001) (en banc)

Of Note: An exception to the general rule that questions about suspect identity are not “reasonably likely to elicit an incriminating response” may exist where the information is relevant to an element of a crime other than identity, e.g., the suspect’s date of birth in a statutory rape case. Slip Op. at 8-9 (citing State v. Locklear, 531 S.E.2d 853 (N.C. Ct. App. 2000)).

Issue 2: Whether Mr. Toler’s conviction for possessing an unregistered firearm required proof that the firearm was not “antique?”

Holding: No. Although the D.C. firearm registration requirement excludes firearms manufactured in or before 1898, antiquity is an affirmative defense that the government need only disprove when there is some evidence in the record to support it. Courts have uniformly interpreted the D.C. statute’s federal counterpart in the same manner. That the registration requirement excludes four other firearm categories further supports that the government need not disprove each one during its case in chief. To do so would be impracticable. As there was no evidence that the firearms seized from Mr. Toler’s apartment were antique, the government had no burden to prove otherwise. WC

Read the full opinion here.

Multiple Shootings, Mutliple Defendants, Multiple Issues Leads to Affirmance in South Capitol Street Case

Bost et al. v. United States (decided February 15, 2018)

Players: Chief Judge Blackburne-Rigsby, Associate Judge Fisher, and Senior Judge Ferren. Opinion by Chief Judge Blackburne-Rigsby. Kristina A. Crooks for Mr. Bost. E. Benton Keatley, Jeffrey T. Green, Lowell J. Schiller, Karen S. Smith, and Blair J. Greenwald for Mr. Best. Thomas T. Heslep for Mr. Williams. PDS for Mr. S. Carter. R. Trent McCotter, Jessie K. Liu, and Michael W. Khoo for Mr. O. Carter. Trial Judge: Ronna Lee Beck.

Facts: The Carter brothers (Sanquan and Orlando), along with Best, shot and killed Jordan Howe on Alabama Avenue in retaliation for the suspected theft of Sanquan’s bracelet. Sanquan was arrested shortly after that shooting and played no role in subsequent events. The following day, a group of Howe’s associates shot and wounded Orlando. In retaliation for that, Bost, Orlando, Best, and Williams planned to attack Howe’s funeral. The group first planned to rob Tavon Nelson for his gun. Best and Bost carried out the robbery, which turned into a shootout that left Nelson dead. The group then did a drive-by shooting of a house on South Capitol Street where Howe’s friends had gathered after the funeral, leaving three dead and several wounded.

Issue 1: Should Sanquan’s case have been tried separately from the others on the ground that he was charged in connection with only the Alabama Avenue shooting? Same as to Bost, who was charged in only the South Capitol Street shooting?

Holding 1: No. Although the issue was not “an easy one,” the charges from the Alabama Avenue and South Capitol Street shootings were properly joined under Super. Ct. Crim. R. 8(b) as part of “the same series of acts or transactions.” Although there was an intervening event — the shooting of Orlando — between the Alabama Avenue and South Capitol Street shootings, there was still a causal connection between them, which is sufficient to make the latter a “sequel” to the first crime. The DCCA rejected the government’s alternative argument that the two shootings were part of a “common scheme or plan.”

Severance was not required to prevent prejudice from the presentation of evidence as to the shootings in which Sanquan and Bost were not involved. Because both were “active participants in conspiracies to commit first-degree murder,” their complicity in the overall venture is not “de minimis.” The evidence was not “so complex or confusing that the jury could not make individual determinations about the guilt or innocence of each defendant.” And “the trial court made efforts to ensure that the jury was not confused about the charges,” by reminding the jury that Sanquan and Bost were not charged with certain offenses, instructing the jury that certain statements could not be used against one or the other, and giving a “strongly worded curative instruction,” in response to the prosecutor’s rebuttal argument, that Sanquan had no responsibility for the South Capitol Street shooting.

Issue 2: Was there a risk of a coerced verdict because a juror reported “pressure from many members of the group to change my mind regarding my vote on particular counts on which we disagree”?

Holding 2: No. The potential of coercion from the note was low, because the juror did not report pressure from the entire group, or that they disagreed on all counts. The identity of the juror was not revealed in open court, “making it less likely that the juror felt undue pressure from the rest of the jury.” The exact division of the jury was (theoretically) unknown. No verdict had been announced, and the court did not give an anti-deadlock instruction. The note did not report any improper behavior during deliberations, only that they were “spirited.” Because the coercive potential was low, the trial court appropriately gave a “neutral, even ‘bland,’ instruction” in response, asking them to resume deliberations and remain civil. An anti-deadlock instruction would have been premature “as there was no indication that the jury was deadlocked at the time of the note.”

Issue 3: Was Best’s trial counsel ineffective for failing to move to suppress Best’s videotaped interrogation on Miranda grounds?

Holding 3: No. Best’s attorney reasonably believed that the factual allegations supporting the motion suppress “were not true.” In addition, the motion to suppress would have been futile because the incriminating portions of the video came in response to questioning by Best’s mother, not police.

Issue 4: Was a mistrial required due to the prosecutor’s conduct during opening — referencing the “Equal Justice Under Law” inscription on the Supreme Court building; asserting that the government’s role was to “fairly enforc[e] the criminal laws”; and decrying “vigilante justice” — and closing — characterizing certain government witnesses as “heroes,” one of whom was doing “God’s work”; asserting that the jury should be “proud” of the police investigation; presenting a blown-up photo of a murder victim that elicited an emotional response in the courtroom; and pleading that the victims’ families were asking for “justice” rather than vengeance?

Holding 4: No. The prosecutor’s comments during opening statement “did not appear to cross the line of permissible opening statements, as the comments were not argumentative.” Even if they were improper, they were “not so grave as to warrant a mistrial.” The trial court’s curative instruction after the openings to base their verdicts on evidence rather than emotion was an appropriate response.

The prosecutor’s statements in closing that the jury should be proud of the police and characterizing certain witnesses as heroes were “not improper when considered in context.” These statements did not “urge the jurors to place themselves ‘in the position of the victim,’ nor did the statements rise to the level of an appeal ‘to the jury’s emotions.’” The prosecutor’s comment about the families asking for justice rather than vengeance “may have appealed to the sympathy of the jurors,” but did not rise to the level of improperly “asking the jurors to ‘send a message to the defendant[s]’ or to the community with their verdicts.” The use of the photograph was not improper because it was admitted into evidence.

Issue 5: Should the trial court have instructed the jury on withdrawal from a conspiracy because Williams left the vehicle before the South Capitol Street shooting, saying, “Y’all about to go commence. Y’all can let me out right here”?

Holding 5: No. To withdraw from a conspiracy, one must act to “disavow” or “defeat the purpose” of the conspiracy. Simply leaving the scene is insufficient to establish withdrawal.

Of Note:

• The DCCA rejected an argument based on a malfunctioning courtroom “husher,” reasoning that there was no evidence any of the jurors actually overheard any of the bench conferences.

• The DCCA also rejected an argument for a change of venue due to adverse pretrial publicity because a change of venue is generally unavailable in Superior Court, and the jurors empanelled had not been influenced by media reports on the case. 

• The DCCA held that Best’s non-verbal “confession” to his mother, and a verbal confession to a friend, were properly admitted as statements against penal interest. 

• The DCCA rejected a number of other issues summarily. Although the court “question[ed] whether the government needed to present testimony from four mothers of the victims,” it ruled that this did not show that the jury decided the case based on emotion. The court held the trial judge did not improperly curtail cross-examination of a cooperating witness. And the court held that the trial court did not err in precluding evidence that the cooperator fired a gun in 2007. DG

Read the full opinion here.

“Do Not Disturb”: Fruits of Warrantless Entry into Motel Room Suppressed

Nyia Gore v. United States (decided August 18, 2016)

Players: Chief Judge Washington, Associate Judge Glickman, and Senior Judge Pryor. Opinion by Judge Glickman. Bryan P. MacAvoy for Ms. Gore. Trial Judge Zoe E. Bush.

Facts: Officers Tobe and Collins responded to a 911 call at a Motel 6 in Northwest, Washington, D.C. The caller, Mr. Ward, met the officers in the parking lot and requested help retrieving property from Ms. Gore, who resided in a room with her two children and refused to let him back in. Mr. Ward showed the officers a text message from Ms. Gore that said she had “trashed [his] shit.”

The officers knocked and identified themselves. Ms. Gore opened the door but did not come out. When asked about the property, she stated she had already thrown it away outside. Officers told Ms. Gore she had committed a crime and would be arrested unless they could retrieve the property. Upon learning that Mr. Ward was present, Ms. Gore shouted for him and walked toward the doorway but was met and handcuffed by the police, who entered the room without her consent. Thus detained, Ms. Gore admitted destroying Mr. Gore’s property, which was still in the bathroom. Officer Tobe then escorted Mr. Ward to the bathroom where his property lay ripped, torn, and broken. Ms. Gore was later charged with and convicted for misdemeanor malicious destruction of property.

Issue 1: Whether the evidence was sufficient to sustain the conviction?

Holding 1: Yes. These circumstances do not permit the Court to second-guess the trial court’s determination of Mr. Ward’s credibility.

Issue 2: Whether Ms. Gore’s unwarned statements should have been suppressed under Miranda?

Holding 2: No. Ms. Gore’s freedom of movement was not restrained enough for her to be considered in custody, when the police were outside her door. The Court need not determine the admissibility of her subsequent unwarned statements under Miranda because it finds that they should have been suppressed under the Fourth Amendment (see below).

Issue 3: Whether fruits of the warrantless entry into Ms. Gore’s apartment should have been suppressed?

Holding 3: Yes. Although police had probable cause to believe that Ms. Gore had maliciously destroyed Mr. Ward’s property and perhaps even that evidence of that crime might be found in the room, there were no exigent circumstances to justify warrantless, nonconsensual entry. Officer Tobe’s testimony that police “could have” gotten a warrant did not prove inevitable discovery where the police had not begun that process at the time of entry.

Of Note:

• By analogizing Ms. Gore’s room to a house, the Court of Appeals indirectly repudiates the trial court’s assessment that the police were allowed to enter with mere probable cause to arrest her. This analogy comports with well-settled Supreme Court caselaw. See Hoffa v. United States, 385 U.S. 293, 301 (1966); Stoner v. California, 376 U.S. 483, 490 (1964).

• The house analogy is also the undoing of Ms. Gore’s Fifth Amendment claim, as the Court of Appeals cites home-based “knock and talk” cases to support that the attempt to interview her from outside the room was noncustodial: e.g., Hughes v. United States, 640 F.3d 428 (1st Cir. 2011);United States v. Titemore, 437 F.3d 251 (2d Cir. 2006). 

• This analogy is not without complications. In Hughes, two law enforcement officers interviewed appellant in the living room of his relatively small, island house, while another was in the kitchen and still another wandered in and out of the house. 640 F.3d at 432. The First Circuit found this encounter noncustodial, noting, among other things, Hughes’s familiarity with the house and the lack of any attempt to “exploit its cozy confines.” Id. at 436. The Second Circuit found that Titemore had not been subject to custodial interrogation when police approached his lakeside Vermont home from a side door and asked to speak about a report of vandalism and a missing firearm. Titemore, 437 F.3d at 260. Police attempts to exploit aside, Ms. Gore’s motel room was arguably much “cozier” and less familiar than either of these settings. Advocates in future cases should emphasize the psychological impact of such circumstances where possible.  WC

Read full opinion here.

Questionable Conduct: Detective’s Interrogation Tactics Create Impermissible Risk That Waiver of the Right to Counsel Was Not Intentional

David T. Robinson v. United States (decided July 14, 2016).

Players: Associate Judges Fisher and Blackburne-Rigsby and Senior Judge Pryor.  Opinion by Judge Fisher.  PDS for Mr. Robinson. Trial Judge: Stuart G. Nash. 

Facts 1:  On May 11, 2012, following David Robinson’s arrest for violating probation, Detective Anthony Patterson went to Mr. Robinson’s interrogation room and told Mr. Robinson that he believed he was involved in the unrelated murder of Howard Sampler.  Det. Patterson said that it might help if Mr. Robinson were to talk but that he needed to be advised of his rights. When Mr. Robinson said that he would like to talk, Det. Patterson brought him to a different interrogation room.   

After a brief exchange during which Robinson claimed to have acted in self-defense, Det. Patterson read Mr. Robinson his Miranda rights from a PD-47 “advice of rights” form, adding “we don’t provide you a lawyer here.  But if . . . we ask you something and you don’t want to talk about it you can say look, I don’t have anything to say about that.”  Per the first three questions on the PD-47, Det. Patterson had Mr. Robinson acknowledge (1) that he had read or had read to him his rights, (2) that he understood those rights, and (3) that he wished to answer questions.  However, Det. Patterson purposely omitted the fourth question: “Are you willing to answer any questions without having an attorney present?”  At the suppression hearing, he testified, “Once [Mr. Robinson] agreed to talk to me I didn’t see any point in asking him if he wanted to talk to me without a lawyer present.”  In the ensuing interrogation, Mr. Robinson admitted to carrying a .40 caliber pistol and firing it at Howard Sampler multiple times in self-defense.  

Issue 1:  Whether the May statement should have been suppressed for Det. Patterson’s failure to issue proper Miranda warnings or his failure to obtain a valid waiver of Miranda rights?

Holding 1: Yes. Although the warnings were “adequate and effective,” the government failed to prove intentional relinquishment of Mr. Robinson’s known right to have a lawyer present during questioning.  There was no express waiver because Det. Patterson did not ask for one.  Further, “this court is entitled to be skeptical [of implied waiver] in a case like this, where an officer [1] deliberately pursues some express waivers but purposefully fails to complete the PD-47” and [2] “apparently fails to appreciate the distinction” between the desire to answer questions and the willingness to do so without counsel present.  Det. Patterson’s failure to appreciate this distinction creates “obvious concern” that Mr. Robinson’s waiver of counsel was not intentional (which could have easily been resolved by completing the PD-47). 

Facts 2: Following the May interrogation, Mr. Robinson was detained for violating his probation until late November.  Days after Mr. Robinson’s release, Det. Patterson called Mr. Robinson and went to his mother’s house (where Mr. Robinson was babysitting his two-year-old daughter) to speak with him.  Det. Patterson later called the child’s mother to discuss retrieving the child. 

When Det. Patterson learned that Mr. Robinson was no longer babysitting, Det. Patterson and two other officers pushed their way inside Mr. Robinson’s mother’s house to search for Mr. Robinson, without warrant or invitation.  Mr. Robinson’s mother then called and told Mr. Robinson “to go down there and take care of it and don’t come back to my house until it’s done.”  Mr. Robinson reported to the police station, where the police interviewed him in a locked interrogation room.  At no point during this interview was Mr. Robinson read his Miranda rights.

Issue 2: Whether the November statement should have been suppressed for the police’s failure to issue Miranda warnings?

Holding 2: No. Despite Det. Patterson’s persistence in urging Mr. Robinson to come to the station, he was not in custody.  His friend drove him there.  He was not physically restrained, and his movements were not restricted to the degree associated with formal arrest (although police escorted him to use the bathroom and smoke).  Although the door was closed and locked once questioning began, that would have been true for any witness “who came back to one of those interview rooms.”

The environment was not so coercive as to be custodial.  Det. Patterson told Mr. Robinson that he was not under arrest and “if you want to leave here . . . you can leave.”  Mr. Robinson stated he would act accordingly.  Det. Patterson told Mr. Robinson that the interview would probably take an hour and agreed to help him coordinate with the friend who drove him, in case the interview took longer.  

Although Mr. Robinson once asked to leave and terminate the interview, he did not actually try to do so.  Moreover, by then, he had incriminated himself.  These facts compare favorably with Spencer v. United States, 132 A.2d 1163 (D.C. 2016), in which the Court found no custody.

Of note:

• This opinion highlights the government’s burden to prove that any supposed waiver is intentional as well as knowing.  The Court disagreed that anything Det. Patterson did or said left Mr. Robinson “uncomprehending of and inattentive to the Miranda right to counsel” but still found unacceptable risk that he did not intentionally waive that right.  Judges and attorneys should be mindful of the government’s distinct burden in this regard. 

• In a footnote, the Court acknowledged the possibility that the police violated the Fourth Amendment when three officers, including Det. Patterson, forced their way into Mr. Robinson’s mother’s house in November to search for Mr. Robinson and the further possibility that his November confession was the fruit of this illegal search.  The Court deemed this argument waived and disclaimed the significance of this fact for purposes of deciding whether Mr. Robinson was in custody under Miranda.

• The Court also acknowledged the possibility that the November confession was a fruit of the May confession under the “cat-out-of-the-bag” doctrine but deemed this argument waived.  WC

Read full opinion here.

Police interrogation tactics threatening prison rape and requiring a confession before granting access to an attorney render confession involuntary

 Jalonte Little v. United States (decided November 12, 2015).

Players:  Associate Judges Blackburne-Rigsby and Beckwith, Senior Judge Belson.  Opinion by Judge Beckwith.  Debra Soltis and Paul Kiyonaga for Mr. Little.  Trial Judge: Ronna L. Beck.

Facts: Police arrested eighteen-year-old Jalonta Little in connection with an attempted carjacking and brought him to the stationhouse for questioning.  Detective Joe Crespo read Mr. Little his rights, which Mr. Little voluntarily waived.  For the next two hours, Det. Crespo used a number of coercive interrogation tactics in an attempt to elicit a confession from Mr. Little.  He falsely told Mr. Little that several witnesses identified him as the perpetrator, falsely told Mr. Little that police recovered his fingerprints from the vehicle, and offered illusory promises of leniency if the eighteen-year-old confessed to the crime.  Mr. Little steadfastly denied involvement.  Det. Crespo upped the pressure, informing Mr. Little that he risked sexual assault should he go to prison, that he would be incarcerated in a faraway prison while his girlfriend forgot about him and moved on to someone new, and that his son would never visit him.  Still, Mr. Little did not confess.  Det. Crespo had one last trick up his sleeve.  He told Mr. Little that he would arrange a meeting with his at-this-point hypothetical attorney before seeking an arrest warrant, to which Mr. Little asked, “So where my attorney at?”  Crespo responded that Mr. Little would not see an attorney until after arraignment, and before he could set up the meeting Mr. Little had to tell him what happened—he had “to have some meat to put on the table.”  Mr. Little confessed two minutes later.

Issue: Was Mr. Little’s confession voluntary?

Holding:  Looking at the totality of the circumstances, the Court determined it was not.  Two aspects of the interrogation stood out as “most coercive.”  First, the Court found Det. Crespo’s comments urging Mr. Little to confess in order to avoid sexual assault in prison “offensive to a civilized system of justice.”  The comments were similar to those that rendered a confession involuntary in Arizona v. Fulminate, 499 U.S. 279, 287 (1991) (where police told Mr. Fulminate they would protect him from fellow inmates only if he confessed).  Second, the Court found that Det. Crespo’s comments to Mr. Little that he would not have access to an attorney until after arraignment and that he had to “put some meat on the table,” i.e. confess, before an attorney would be provided were “unquestionably coercive.”  At that point, “any assumption of continued voluntariness that stemmed from Mr. Little’s signing of the Miranda rights form faded.”  These two tactics, coupled with the other coercive tactics employed by the police, such as lying to Mr. Little about the evidence against him and threatening prosecution for crimes they openly thought he did not commit, proved Mr. Little’s confession involuntary. 

Of Note: 

• In footnote 9, the Court notes that it need not decide whether Mr. Little’s question, “So where my attorney at?” was an invocation of his right to counsel.  The Court did note, however, that this statement “conveyed essentially the same message as the statement the Supreme Court assumed was an invocation of rights in Edwards v. Arizona, 451 U.S. 477, 479 (1981).” 

• In footnote 16, the Court held that while the harmless error rule applies to erroneously admitted confessions, “a confession is like no other evidence” and “the risk that the coerced confession is unreliable, coupled with the profound impact that the confession has on the jury, requires a reviewing court to exercise extreme caution before determining that the admission of the confession at trial was harmless.”  Thus, the government “sensibly” did not argue that the admission of the involuntary confession was harmless.  DH

Read full opinion here.    

DCCA to MPD: If you’re going to handcuff a suspect, you’d better issue Miranda warnings before you start asking questions.

Fredrick E. Morton v. United States (decided October 29, 2015).

Players: Chief Judge Washington, Associate Judge Blackburne-Rigsby, Senior Judge Ferren.  Opinion for Chief Judge Washington.  Concurrence by Senior Judge Ferren.  PDS for Mr. Morton.  Trial Judge: Lynn Leibovitz.

Facts: Fredrick Morton was chased, detained, and handcuffed on suspicion of engaging in a drug transaction.  He tossed a wallet along the way, which police picked up.  The investigating officers told him that he was not under arrest but stated, “We need to know why you ran.  Why would you run if you didn’t do anything?”  The officers later asked, “What was up with the wallet?” “I saw you throw a wallet.  What’s up with the wallet?”    Client said he found it on the Metro.  He was then formally arrested.

Issue: Whether Mr. Morton was in custody for Fifth Amendment purposes, when (1) he was restrained with handcuffs after being chased by police, and (2) police confronted him with evidence that was sufficient to establish at least probable cause that he had committed a crime, but (3) police told him that he was not under arrest before he was questioned, and (4) the questioning was brief and (5) took place on a public street where (6) the investigating officers did not brandish weapons.

Holding: Yes.  “Mr. Morton’s detention by use of handcuffs, although not strictly dispositive on this issue, strongly militates toward a finding of Miranda custody.”  Slip op. at 13.

Of Note: 

• The Court offers a handy review of the factors that are relevant to determining whether an individual is in custody for Fifth Amendment purposes: the degree to which the police physically restrain the suspect (including whether the police use handcuffs); what the police say to the suspect (especially whether police tell the suspect that he is not under arrest and may decline to answer questions); whether interrogation occurs in public or in a “secluded area;” the length of the detention and questioning; whether the police questioning is “inquisitorial” or “accusatory;” the show of force or brandishing of weapons by the police; whether the suspect is confronted with obvious evidence of his guilt; and whether the police already have sufficient cause to arrest, and the suspect knows this.  Slip op. at 11-12.

• The government argued that Mr. Morton was not in custody because police told him that he was not under arrest.  The Court found this argument unconvincing, reasoning that this statement by police is not worth much if police do not also inform the suspect that he is free to leave or that he may decline to answer questions. 

• The Court declined to rule on whether, in the Fifth Amendment context, the “reasonable person” test presupposes a “reasonable innocent person,” as opposed to simply a “reasonable person” in the defendant’s position.  Read Senior Judge Ferren’s concurrence for a thorough discussion of why, for Fifth Amendment purposes, the detainee’s state of mind is that of a reasonable person in the detainee’s position.  NG

Read full opinion here.