The Criminal Docket


August, 2006      

Volume I , Number 6 



This Issue's Topics:

Important:  Number 2006-18, concerning Detention of Passengers, has been superseded, and should be ignored.  Click here to read Number 2007-07, which takes it place.
:  2006-18    DATE:  07-19-06  BY:  Devallis Rutledge   TOPIC:   Detention of Passengers

ISSUE:  At what point, if ever, is a passenger detained when a vehicle stop is made?

For many years, California appellate courts have disagreed as to whether a passenger in a stopped vehicle has been detained when the vehicle is stopped. The California Supreme Court has settled the question (albeit in dicta) in companion cases.

In the first, a passenger moved to suppress evidence found in the search of the vehicle in which he was riding when police made a traffic stop. Since the defendant conceded he could assert no legitimate expectation of privacy in another's car and could not contest the search and seizure occurring there (Rakas v. Illinois (1978) 439 US 128, 133), suppression could easily have been denied on this basis. But the California Supreme Court also considered his argument that he had a liberty interest that police violated when they made the stop, and gave this qualified rejection:

"We find that the passenger, whose progress is momentarily stopped as a practical matter, is not seized as a constitutional matter in the absence of additional circumstances that would indicate to a reasonable person that he or she was the subject of the peace officer's investigation or show of authority." People v. Brendlin (2006) ___ Cal.4th ___ , 45 Cal.Rptr.3d 50, 51, DJDAR 8559 (Underline emphasis added.)

What kinds of "additional circumstances" might transform the passenger's non-detention into a detention? In the second case, a passenger sought to suppress evidence seized from his person after he was ordered out and patted down, plus evidence found on the floorboard of the vehicle, on grounds of unlawful traffic stop (the issue of the pat search was not before the Supreme Court). The court found that a missing front license plate and possible registration irregularities justified the stop. Again, because the passenger would have no right to contest a search of the floorboard of another's truck, and because the stop was found lawful, suppression could easily have been denied on these grounds; however, the court also considered the defendant's contention that he was seized when he was ordered out, and agreed: "[D]efendant was unquestionably seized when the officer ordered him to step out of the truck." People v. Saunders (2006) ___ Cal.4th ___ , 45 Cal.Rptr.3d 66, 70, DJDAR 8568.

As a result of these two decisions, law enforcement officers and prosecutors get this half of the baby: passengers cannot normally challenge the lawfulness of the stop of a vehicle in which they were riding. Criminal defendants get this half: if police order passengers out at a vehicle stop, as they are lawfully entitled to do for officer safety (Maryland v. Wilson (1997) 519 US 408, 414-15), they will confer "standing" on the passengers to raise an unlawful-detention issue.

BOTTOM LINE: Passengers are not automatically detained at a vehicle stop, but may be if police direct their movement.


CORRIGENDUM: The "Bottom Line" in 1MB 2006-16 re the defense of duress erroneously refers to the "defense of necessity." Recipients (DDAs and Judges only) should correct their copies by interlineation, changing "necessity" to "duress." (Thanks to DDA Dennis Vincent for this correction.)

Back to Top

NUMBER:  2006-19    DATE:  08-04-06  BY:  Devallis Rutledge   TOPIC:   Miranda & the 6th Amendment

  Does Miranda protect both Fifth and Sixth Amendment rights?

As of June 13, 2006, the Miranda opinion had been on the books for 40 years. That's longer than many legal careers and long enough, you would think, for cops and lawyers and judges (if not scriptwriters) to gain a working acquaintance with it. However....

Miranda talks about a "right to counsel," and undiscerning practitioners apparently assume this refers to the constitutional right to counsel contained in the Sixth Amendment. Instead, of course, Miranda fashioned a court-created "right" as part of the admissibility foundation for certain statements to prevent a violation of the Fifth Amendment privilege at trial. Triggered by custodial interrogation, Miranda often applies long before the Sixth Amendment right to counsel has attached (usually, by indictment or arraignment). Still, the misunderstanding persists:

"The question is not whether the proper form was used but whether the defendant voluntarily, knowingly and intelligently waived his Fifth and Sixth Amendment rights as delineated in Miranda."
People v. Riva (2004) 112 Cal.App.4th 981, 989 (All underlines added.)
"The United States Supreme Court articulated the Miranda admonitions in 1966 as a prophylactic measure to protect the Fifth and Sixth Amendment rights of those interrogated by agents of the government."
People v. Castile (2005) 129 Cal.App.4th 863, 867-68

The US Supreme Court has repeatedly sought to correct such misunderstandings, distinguishing the Massiah exclusionary rule, which protects the Sixth Amendment right to counsel, from "...Miranda, the holding of which rested exclusively on the Fifth Amendment."  Moran v. Burbine (1986) 475 US 412, 430.

"The right to counsel mandated by Miranda was fashioned to secure the suspect's Fifth Amendment privilege in a setting thought inherently coercive. The Sixth Amendment was not implicated."
US v. Mandujano (1976) 425 US 564, 580, fn. 6
"[T]he right to counsel at issue in the present case is based not on the Sixth and Fourteenth Amendments, but rather on the Fifth and Fourteenth Amendments as interpreted in the Miranda opinion. ... [T]he policies underlying the two constitutional protections are quite distinct."
Rhode Island v. Innis (1980) 446 US 291, 300, fn. 4.

And see, Michigan v, Jackson (1986) 475 US 625, 629, and McNeil v. Wisconsin (1986) 501 US 171, 175-78, also explaining the differences between Miranda and the Sixth Amendment.

BOTTOM LINE: Despite what you may read in appellate opinions and hear around the courthouse, the "right to counsel" discussed in Miranda is NOT the Sixth Amendment right to counsel. Miranda has no Sixth Amendment dimensions.

Back to Top

NUMBER:  2006-20    DATE:  08-10-06  BY:  Devallis Rutledge   TOPIC: Justifying Pat-down Search

ISSUE: For Fourth Amendment purposes, what level of justification must a law enforcement officer have to conduct a "weapons frisk," or "pat-down" search?

Occasionally, a police report describes the circumstances of a weapons frisk during a detention this way: "After we detained him, I patted him down for officer safety." Officer safety (or public safety) is indeed the reason why pat-down searches are sometimes allowed, but only when the circumstances of the encounter support a reasonable belief that the person is "armed and presently dangerous to the officer or to others." Terry v. Ohio (1968) 392 US 1, 24. Omitting details of those circumstances may result in findings that the search was unlawful and that its fruits are inadmissible.

Andrew Milton Flatter, a postal employee, was stealing mail from the VA containing prescription drugs. He was caught in a sting and taken into an office where postal inspectors patted him down, "for officer safety." The evidence recovered during this frisk was admitted to convict him, but the Ninth Circuit reversed and suppressed because no facts were articulated to establish a reasonable suspicion that Flatter was armed and dangerous (other than that he was a POSTAL employee working in a POST OFFICE). US v. Flatter (9th Cir. 2006) WL 2269055, DJDAR 10438.

Rarely will a single factor be enough to justify a pat down (exceptions: violent crime suspected, serious threats, reliable reports or visible evidence of weapons). In most cases, an officer writing a report and a prosecutor responding to a suppression motion should develop all of the relevant circumstances, which may include the following:

• Violent crime suspected. People v. Thurman (1989) 209 Cal.App.3d 817.
• Remoteness of the area. Michigan v. Long (1983) 463 US 1032.
• Obscure area. People v. Castanedo (1995) 35 Cal.App.4th 1222.
• High-crime area. People v. Souza (1994) 9 Cal.4th 224.
• Late hour. People v. Rico (1979) 97 Cal.App.3d 124.
• Number of suspects. People v. Samples (1996) 48 Cal.App.4th 1197.
• Number of officers/back-up. People v. Rico (1979) 97 Cal.App.3d 124.
• Size of suspects. In re Michael S. (1983) 141 Cal.App.3d 814.
• Threatening demeanor. People v. Szabo (1980) 107 Cal.App.3d 419.
• Suspicious clothing. US v. Hines (9th Cir. 1991) 943 F.2d 348.
• Suspicious bulges in clothing. Pennsylvania v. Mimms (1977) 434 US 106.
• Abrupt movement. People v. Rosales (1989) 211 Cal.App.3d 325.
• Trying to hide something. People v. King (1989) 216 Cal.App.3d 1237.
• Evasive conduct. People v. Stone (1981) 117 Cal.App.3d 15.
• Citizen reports of weapons. Adams v. Williams (1972) 407 US 143.
• Prior contacts/trouble. People v. Williams (1992) 3 Cal.App.4th 1100.
• Weapons/ammo/holsters. People v. Foranyic (1998) 64 Cal.App.4th 186.
• Warnings in official bulletins, etc. US v. Hensley (1985) 469 US 221.
• Hand-to-hand drug sale. People v. Limon (1993) 17 Cal.App.4th 524.
• Duty to transport riders. People v. Tobin (1990) 219 Cal.App.3d 634.

Including as many of these and all other factors as the evidence supports may enhance the likelihood that a pat-down search will be found reasonable under the Fourth Amendment.

Bottom Line: To meet the constitutional standard, a weapons frisk or pat-down search of a detainee must be based on articulable facts that support a reasonable suspicion the person searched may have been armed and dangerous.

Back to Top

NUMBER: 2006-21     DATE: 08-22-06     BY: Devallis Rutledge     TOPIC: Anticipatory Miranda Invocation

ISSUE: Can a suspect invoke Miranda in advance, before the warning is given or custodial interrogation is imminent?

Suspects sometimes try to invoke Miranda silence or counsel at the first sign of suspicion. Even before custody occurs or custodial interrogation is attempted, a person may say, "I'm not saying anything," or "I'm not talking without a lawyer." When a suspect has put police on advance notice that s/he intends to invoke Miranda protection, are police foreclosed from a subsequent attempt to obtain a valid waiver?

Controlling authority rejects the idea that Miranda may be invoked anticipatorily:

"We have in fact never held that a person can invoke his Miranda rights anticipatorily, in a context other than custodial interrogation. ... Most rights must be asserted when the government seeks to take the action they protect against."
McNeil v. Wisconsin
 (1991) 501 US 171, 182, fn. 3

"In order for  a defendant to invoke his Miranda rights the authorities must be conducting interrogation, or interrogation must be imminent. ... We believe that not allowing a defendant to invoke his Miranda rights anticipatorily does not place an arduous burden on the defendant—all he needs to do is invoke his right in response to or just before interrogation." (Citation.)

People v. Nguyen (2005) 132 Cal.App.4th 350, 356 (suspect's request to call an attorney during arrest was not a valid invocation)

"In keeping with McNeil, to be effective, a suspect's invocation ... must be asserted at the point when the suspect is in custody and interrogation by the police has begun, the point at which the suspect must be advised of his or her Miranda right to have counsel present during questioning. ... Because Beltran's purported invocation occurred outside the setting of custodial interrogation, it could not operate to invoke [Miranda]."

People v. Beltran (1999) 75 Cal.App.4th 425, 432 (written "invocation form" filed by attorney at arraignment is not a valid invocation)

"The Court has never held that Miranda rights may be invoked anticipatorily outside the context of custodial interrogation." US v. Wright (9th Cir. 1992) 962 F.2d 953, 955 (attorney's request to be present at interviews was not an invocation).

See also, People v. Calderon (1997) 54 Cal.App.4th 766, 770-71 (suspect's request for an attorney made to public defender investigator during witness interview did not invoke Miranda).

Premature assertions of silence or counsel during a consensual encounter, a detention, an arrest or a period of custody not accompanied by interrogation or the administration of a Miranda warning do not foreclose the ability to later give a warning and obtain a valid waiver and an admissible statement.

BOTTOM LINE: "Simply stated, the Miranda rights cannot be invoked except during the custodial interrogation against which they are being asserted." People v. Avila (1999) 75 Cal.App.4th 416, 422.

This information was current as of publication date. It is not intended as legal advice. It is recommended that readers check for subsequent developments, and consult legal advisors to insure currency after publication.  Local policies and procedures regarding application should be observed.

Back to Top

Back to Beginning of This Issue