The 8th, the 5th, and the 6th
I've lavished praise on the 8th District for its place as the most defendant-friendly 4th Amendment court in the state, if not the country. A couple of decisions last week show that the court seems to be adopting a broad interpretation of the rights provided by the 5th and 6th Amendments as well.
Daniel Arguelles left his car running while he ran into the store to grab something, and when he got back, he found a Parma police officer writing a ticket for him. The officer handed him the ticket, then made a curious request: could he search the car to see if there was drug paraphernalia in it? Arguelles resisted, the officer persisted until "eventually" Arguelles told the officer he just "smoked a blunt," at which point he was arrested. A search of the car turned up some Percocets, but the judge threw out the statements Arguelles had made.
The question presented in State v. Arguelles is whether Arguelles was "in custody" at the time he made the statements, and one of the problems with the opinion is that, other than the "blunt" comment, it doesn't tell us what those statements were. The trial court's entry, though, suggests that the interrogation extended beyond the initial inquiries, during which time "the defendant provided admissions about items in his car," so we'll go with that. The lead case on highway interrogation is State v. Farris (discussed here), which held that officer's removing Farris from the car, patting him down, and placing him in the back of the police cruiser would have led a reasonable person in Farris' position to believe that he was in custody, and that's the relevant inquiry for Miranda purposes.
There seems to be a clear dividing line here: the statements made by Arguelles before he was placed in handcuffs, and the statements that he made afterward, the latter requiring Miranda warnings. The court blurs that distinction, though, and blurs the facts somewhat. It concludes that "the officer's continued questioning of Arguelles coupled with the physical restraint, however slight, of holding Arguelles's hands behind his back was improper absent a warning." The court's recitation of the facts again conflicts with that of the trial judge: the panel doesn't have Arguelles being handcuffed until after the police had searched the car, while the trial judge, who viewed the cruiser's vidcam (in fact, that was the only evidence submitted), found that the handcuffing took place a little over thirty seconds after officer started asking to search the car.
\The net result is that Arguelles can be read as holding that an officer's "repeated asking" if he can conduct a search despite "repeated refusals" can, in and of itself, place the defendant in custody. This is where legality and reality go their separate paths. From a legal standpoint, the courts have long recognized that a police officer's simply asking questions does not constitute a violation of one's rights, because one is under no legal obligation to respond, and can simply walk away. The reality is that Danny Arguelles is arguing in the middle of the street with a guy who's got a badge and a gun and has just issued him a form of legal process, and if Danny ever entertained the notion of ignoring the officer, getting into his car, and driving off, he probably entertained the realization that the officer was not about to let him do that. And if Arguelles is read as saying that police can't pester you about searching your car if you don't want them to, that's not a bad thing.
One area where I've frequently criticized the 8th is its handling of the 6th Amendment right to confrontation under Crawford; the court hasn't always appreciated the fact that whether a statement falls within a hearsay exception is completely separate from whether it's testimonial under Crawford, and its treatment of whether a statement is testimonial has been sketchy. The court makes amends for that with its decision in State v. Cooper.
Cooper had a good idea: his friend would lure a drug dealer to a gas station, and Cooper would reach into the car and rob him. It turned into a bad idea because the dealer had suspected something alone these lines, and had a friend follow him in another car. When Cooper reached into the car, the friend got out of his, and dealer and friend proceeded to pummel Cooper until he ran into the gas station. A crowd guarded/threatened Cooper until the police arrived, at which point the dealer ran up to the cops and told them that Cooper had a gun. Cooper was arrested, and made a statement admitting to the events, but denying that he was the owner of the gun that the police recovered from a trash can near the station's door.
Now, if you're smart, you're saying, "I'll bet the guy you refer to as a drug dealer five times in the preceding paragraph doesn't show up to testify at trial." And you'd be right. So the court allowed the officer to testify as to the dealer -- er, victim's -- statement.
Prior courts might have fluffed this off by holding that the statement was admissible as an excited utterance, but the panel correctly ignores that and goes for the critical question: was it testimonial? The court uses the primary purpose test, as developed in Davis v. Washington: the statement is not testimonial if it's intended to obtain police aid for an ongoing emergency, but is testimonial if it's intended to "prove past events potentially relevant to later criminal prosecution."
One of the problems is that the case law is couched in terms of police interrogations producing a testimonial statement, but here the statement was volunteered: that was basically the first thing that the dealer told the cops. That was clarified, the panel notes, by the Supreme Court's decision last year in Michigan v. Bryant, which held that, with the primary purpose test, the courts must objectively look at the statements and actions of both the declarant and interrogators to determine the interrogation's primary purpose." Since there was no interrogation, "we consider only the victim's primary purpose in making the statement." And that's simple: from the victim's standpoint, there no longer was an ongoing emergency; as the court pointedly notes, "there was no likelihood that Cooper posed any threat to the victim. Indeed, if a threat existed, it was the threat that the victim and his friend posed to Cooper."
So it's error, right? Yes, but of the harmless variety: the court points to evidence, including Cooper's statements, that there was a gun "on the ground as the fight was going on." Thus, it was "undeniable" that a gun was "present at the scene." Why this would make the admissibility of a statement that the gun belonged to Cooper irrelevant is not at all clear, but that's when we come to the question of why we're talking about all this in the first place: although Cooper was charged with aggravated robbery, the jury convicted him of the lesser offense of robbery by force, and made no findings on the firearm specifications, and the trial court deemed him not guilty of those. In short, given the jury's verdict essentially finding that Cooper didn't have a gun, it's impossible to see the relevance of a discussion of whether he did have one.
Although the destination is questionable, the journey was worth it. The court clarifies much of Crawford law, especially the issue of volunteered statements. You've come a long way, baby.
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