Timothy P. O'Neill
Chicago Daily Law Bulletin
Copyright 2003 Law Bulletin Publishing Company
April 9, 2003
When Cops Ask Questions, State Law May Be Foil
In the 1940s Capt. Louis Renault referred to it as "rounding up the usual suspects."
In the 1950s TV cops called it "bringing them downtown for questioning."
Regardless, the Miranda decision in the 1960s changed forever the way police interrogate suspects.
Yet two recent decisions here in Illinois show there are issues that remain unresolved in this area of the law.
First, let's review the basics.
Generally, police are free to question anyone they please about any subject. Restrictions apply, however, when police want to interrogate a person in custody. Before there can be "custodial interrogation," the famous Miranda warnings must be given and the suspect must properly waive his rights. Miranda v. Arizona, 384 U.S. 436 (1966).
Note that police do not have to give Miranda warnings before they interrogate someone not in custody; nor do they have to give Miranda warnings if they merely take someone into custody and do not try to interrogate.
Miranda applies only to custodial interrogation.
"Custody" means that the police are restraining a person from leaving. Thus, if the police are merely asking questions of a person who is free to leave the police station at any time, they do not have to give Miranda warnings.
This, however, leads to the problem presented in a recent 7th U.S. Circuit Court of Appeals case: First Defense Legal Aid v. City of Chicago, 319 F.3d 967 (7th Cir. 2003). The case deals with people interrogated by the Chicago police who exist in a legal "twilight zone."
First Defense Legal Aid expressed concern that police " 'invite' to the station persons they suspect of crime but lack the evidence to charge with offenses, ask these persons for information, and keep them cooped up because they, not being formally in custody, do not receive either Miranda warnings or direct notice that they are free to leave." At 970. The opinion referred to these people as "witnesses."
First Defense, a group of volunteer lawyers seeking to represent these "witnesses," obtained a permanent injunction from the U.S. District Court ordering the Chicago police and Cook County state's attorney to both notify the "witness" when an attorney arrives at the station purporting to represent him and to allow the attorney to confer privately with that person.
The 7th Circuit reversed. The appeals court first noted that not only does a person being questioned in a non-custodial setting have no right to be notified that an attorney is at the station and wants to see him, but that even a person in custody and eligible for Miranda warnings has no such right under the U.S. Supreme Court's decision in Moran v. Burbine, 475 U.S. 412 (1986). Moreover, attorneys have no independent constitutional right to demand access to these witnesses, for the latter have no right to counsel under either Miranda or the Sixth Amendment.
If a witness -- who by definition is not a custodial suspect and is thus free to leave -- is refused his request to leave, the witness himself may indeed by able to obtain damages against the police. But this possibility does not mean that an attorney has any enforceable right to demand access to such a witness while he is at the police station.
Thus, the decision in First Defense does nothing to help either the witnesses or attorneys.
However, a recent decision from the 1st District Appellate Court reminds us that Illinois grants more rights to custodial suspects than does the U.S. Supreme Court. And in doing so it may grant more rights to "witnesses" as well.
Vernon Woods was taken into custody and read his Miranda rights on the afternoon of Nov. 5, 1999. People v. Woods, 2003 Ill.App. LEXIS 321 (1st Dist., March 19). Woods waived his rights and voluntarily answered questions from the police.
He was still in custody the following afternoon when attorney John Nocita arrived at the station. Woods' girlfriend had retained Nocita to represent Woods. The police refused Nocita's request to see Woods. Nocita then wrote a note telling Woods that he (Nocita) is a lawyer and advising him not to speak with the police without an attorney present. The desk officer agreed to make sure that Woods got the note.
That evening one Agent Delaney arrived at the station to continue interrogating Woods. Delaney was given Nocita's note and business card; after reading the note, he threw it away. He then told a fellow agent named Ward-Hudson that an attorney had come to see Woods and had left his business card.
Ward-Hudson in turn told Woods that an attorney had come to see him. She also told Woods that if he wanted to talk with the attorney, then she would be unable to speak with him again. Woods responded that he wanted to speak with her -- not the attorney. About 30 hours later, Woods made and signed in incriminating statement.
In attempting to suppress the statement, Woods claimed that his rights were violated when the police refused Nocita's request to see Woods at the police station.
There is no question that Woods has no such right under federal law. In Moran v. Burbine, supra, the U.S. Supreme Court specifically rejected this argument for two reasons. First, a custodial suspect who has not previously been charged with an offense has no right to counsel under the Sixth Amendment.
Second, there is no Miranda violation; the custodial suspect's Miranda waiver is not affected by whether or not an attorney happens to be at the police station. Under Moran Woods loses.
Yet Illinois has rejected Moran.
The Illinois Supreme Court grants custodial suspects more rights. It has held that a custodial suspect's rights under the state Constitution are violated when officers fail to tell the suspect that an attorney is at the station and when officers refuse an attorney who is at the station access to the suspect. People v. Chapman, 194 Ill.2d 186 (2000), and People v. McCauley, 163 Ill.2d 414 (1994).
This is true even if the suspect has not personally retained the attorney. For example, the family of the defendant in McCauley, unbeknown to him, retained the attorney who came to the station.
The Illinois Supreme Court has found this right to counsel in two different provisions of the Illinois Constitution: the due process clause (Article I, section 2) and the self-incrimination clause (Article I, section 10).
Thus, the police refusal to let Nocita see Woods must result in the suppression of the statement.
Yet the Woods court found a second, separate reason for suppression. It held that the failure of the police to show Woods the note from Nocita advising him not to answer questions without an attorney also violated both the Illinois due process and self-incrimination principles.
Lawyers from First Defense Legal Aid should carefully read the Woods opinion. True, Woods deals only with "custodial suspects," not "witnesses." And neither the 7th Circuit case nor Woods will prevent the police from manipulating so-called witnesses by denying they are in custody and thus refusing to read them Miranda warnings before interrogation.
But Woods does provide First Defense with a tactic. If the First Defense lawyer is refused access to one of these witnesses, the lawyer should nevertheless leave a note with the police and direct that it be given to the person. Like the note in Woods, it should warn the person not to answer any questions without a lawyer. If the witness at some point turns into a custodial suspect, Woods mandates that the police will have to show him the lawyer's note before any interrogation takes place. Moreover, if the lawyer is still at the police station at that time, the lawyer must be given immediate access.
If, however, the police later obtain incriminating statements from the witness, yet insist that Miranda warnings were unnecessary because he was never in custody, evidence of the undelivered note might cast doubt on the good faith of the police and might help the witness make the argument that he was actually in custody. The statements could then be suppressed under Woods.
Woods is a perfect example of how defendants can sometimes obtain more rights under state law than they can through the U.S. Constitution. |
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