     In Florida v. J.L. (2000) 529 US 266, the Supreme Court ruled that an uncorroborated anonymous telephone tip that a particular person was carrying a concealed weapon was insufficient to justify detention by police. The California Supreme Court distinguished J.L. and upheld the stop of a DUI driver anonymously reported by another motorist, in People v. Wells (2006) 38 Cal.4th 1078. (See 1MB 2006-17.) Again distinguishing J.L., the court has now ruled that an anonymous 911 call of a particular person drawing a gun on the caller justified a detention and search a few minutes later. People v. Dolly (2007) ___ Cal.4th ___ , DJDAR 1443, WL 269449.
     A man called 911 and described another man who had "just pulled a gun on me." The caller gave a description of the vehicle the suspect was in, and its parked location. Minutes later, dispatched officers approached the car, saw Norman Dolly (who fit the description) ordered him out, and found his gun beneath the seat. Dolly's motion to suppress the gun and his admissions was denied, and the California Supreme Court affirmed.
     The court found four factors adequate to distinguish this case from J.L.: (1) unlike J.L., who was passively possessing a concealed firearm, Dolly had exhibited it at someone, thereby actively creating an immediate public danger; (2) Dolly's victim had used a 911 line to report the call, enabling police to trace the call and arrest the victim for making a false report if his call was a hoax, thus enhancing reliability; (3) the victim gave his basis of knowledge, telling police that he himself had just seen the suspect "pull a gun" on him; and (4) the victim gave a plausible reason for wanting to remain anonymous, telling police that he was in hostile gang territory where he would be in danger as an identified "snitch."
     "Under the totality of the circumstances, we find there was sufficient indicia that the 911 caller was able to see the criminal conduct he was reporting, that he was reporting it truthfully and accurately, and thus that the tip was sufficiently reliable to justify the limited intervention of an investigatory detention, which led to discovery of the loaded revolver." People v. Dolly, supra.
The Dolly decision provides several factors that may be used to distinguish J.L. in the case of police actions prompted by anonymous tips, and points up the importance of police officers and dispatchers making an effort to obtain information from anonymous informants that shows the basis for their tips, their reasons for not identifying themselves, and details of the suspect's conduct, as well as documenting the fact that a particular anonymous tip came by 911 call.

NUMBER: 2007-05 DATE: 05-23-07 BY: Devallis Rutledge TOPIC: Trial Practice

ISSUE: Can a defendant's pre-Miranda silence be used as substantive evidence of his guilt?

     In limited circumstances, a defendant's silence cannot be used against him. Neither an officer's testimony nor the prosecutor's argument may call attention to the fact that the defendant invoked Miranda. Miranda v. Arizona (1966) 384 US 436, 468, fn. 37. Nor may the jury be asked in any manner to draw an inference of guilt from the fact that the defendant did not testify at trial. Griffin v. California (1965) 380 US 609, 614. A testifying defendant cannot be impeached with evidence that he remained silent after Miranda warnings were given. Doyle v. Ohio (1976) 426 US 610, 619.
     On the other hand, pre-arrest silence may be used for impeachment. Jenkins v. Anderson (1980) 447 US 231, 240. Even post-arrest, pre-Miranda silence is admissible to impeach, absent circumstances indicating that the defendant's silence was an exercise of his right to remain silent. Fletcher v. Weir (1982) 455 US 603, 607.
     In many cases, of course, the defendant does not testify, so the impeachment rulings in Jenkins and Fletcher do not apply. However, evidence that the defendant kept silent in the face of accusations or under other circumstances where it would be natural for the innocent to speak up could arguably be probative of a consciousness of guilt, if constitutionally admissible. Unfortunately, the Supreme Court has not ruled on the extent to which pre-Miranda silence may be used as substantive evidence of guilt, when the defendant does not testify (see Fn. 2 in Jenkins, reserving the question).
     The Ninth Circuit has split the baby, depending on whether the proffered silence occurred before or after arrest: "The use of a defendant's pre-arrest, pre-Miranda silence is permissible as impeachment evidence and as evidence of substantive guilt." US v. Beckman (9th Cir. 2002) 298 F.3d 788, 795. However, "[W]hen the district court admitted evidence of Whitehead's post-arrest, pre-Miranda silence, and when it allowed the government to comment on this silence in closing argument, it plainly infringed upon Whitehead's privilege against [compelled] self-incrimination." US v. Whitehead (9th Cir. 2000) 200 F.3d 634, 639.
     Although California courts have not published a decision addressing the use of pre-Miranda silence as substantive evidence of guilt, a pending decision could address the issue. People v. Tackett (2006) 144 Cal.App.4th 445, rev. grtd. Because the US Supreme Court has not mandated exclusion of pre-Miranda silence as proof of guilt, California courts are powerless to create such a constitutional exclusionary rule on their own. People v. May (1988) 44 Cal.3d 309, 318. But evidence may be excluded under Evidence Code section 352 if it lacks substantial probative value, and “[i]n most circumstances, silence is so ambiguous that it is of little probative force.” United States v. Hale (1975) 422 U.S. 171, 176.
     Pre-Miranda silence constituting an adoptive admission is normally admissible as substantive evidence of guilt, unless circumstances indicate an exercise of constitutional rights. Evid. C. § 1221; People v. Jurado (2006) 38 Cal.4th 72, 116-17.

BOTTOM LINE: Absent a US Supreme Court mandate to exclude pre-Miranda silence as substantive evidence of guilt on constitutional grounds, such evidence should be admissible in California trials, provided it meets applicable statutory admissibility standards, and provided the circumstances do not show that the defendant was merely exercising his right to silence.

ISSUE: How does a suspect "reinitiate" discussions with police after invoking Miranda?

Once a Mirandized custodial suspect invokes, his responses to subsequent police-initiated custodial interrogation are generally inadmissible to prove guilt. Miranda v. Arizona (1966) 384 US 436, 444. If the suspect invokes only the right to silence, and if that invocation is scrupulously honored, he may be re-approached later to seek a waiver and an admissible statement as to a different case. Michigan v. Mosley (1975) 423 US 96, 104-05 (two-hour interlude). On the other hand, if the suspect invokes his right to counsel, police may not obtain a valid waiver for an admissible statement by police-initiated interrogation as to any case while he remains in continuous custody, unless his attorney is present. Minnick v. Mississippi (1990) 498 US 146, 153.
However, the suspect always retains the power to reopen discussions and give a valid waiver and an admissible statement. This is why officers confronting an invocation will often give the suspect a business card with their phone numbers and say, "Call me if you change your mind." As long as the facts show that it was the suspect, and not the police, who initiated further discussions about the case, a valid waiver and a fully-admissible statement can be taken. Examples:
● Oregon v. Bradshaw (1983) 462 US 1039, 1045-46. After requesting an attorney, the suspect asked, "What's going to happen to me now?" The Supreme Court ruled that this question "evinced a willingness and a desire for a generalized discussion about the investigation." The court said that after police took a "waiver of the previously asserted right,” they could interrogate and obtain an admissible statement.
● People v. Sapp (2003) 31 Cal.4th 240, 268. Twenty-four hours after invoking counsel, the suspect asked a jailer to summon the homicide investigators so he could admit to three murders. Following a waiver, his confession was admissible.
● People v. Waidla (2000) 22 Cal.4th 690, 729-32. Suspect's post-invocation question to detective, "What can I do to help you?" reinitiated discussions. Post-waiver statement was admissible.
● People v. Mattson (1990) 50 Cal.3d 826, 861-62. "I'd like to talk to you," reopened discussions and allowed a waiver and an admissible statement.
● People v. Thompson (1990) 50 Cal.3d 134, 164. Suspect reopened discussions by inquiring about his girlfriend/accessory's situation, and then waiving his rights.
● US v. Michaud (9th Cir. 2001) 268 F.3d 728, 738. After invocation, the suspect's cellmate told officers the suspect had information about a murder and wanted to talk to them. Officers confirmed this with the suspect and then took a waiver. The resulting statement was admissible.

BOTTOM LINE: Once a suspect in custody has invoked counsel under Miranda, police may take an admissible statement if the suspect reopens discussions related to the case and waives the right previously asserted.

NUMBER: 2007-07 DATE: 06-18-07 BY: Devallis Rutledge TOPIC: Search & Seizure

***Supercedes 1MB 2006-18, which appeared in the August 2006 edition of The Criminal Docket.***

ISSUE: Is a passenger detained when the vehicle in which s/he is riding is stopped by police?

     In People v. Brendlin (2006) 38 Cal.4th 1107, the California Supreme Court ruled that passengers are not necessarily detained at a traffic stop just because their driver is. The US Supreme Court has unanimously reversed this ruling:
     "[T]he issue is whether a reasonable passenger would have perceived that the show of authority was at least partly directed at him, and that he was thus not free to ignore the police presence and go about his business. ... [A]ny reasonable passenger would have understood the police officers to be exercising control to the point that no one in the car was free to depart without police permission." Brendlin v. California (2007) 551 US ___ , WL 1730143.
     This decision holds that passengers will have "standing" to contest the validity of traffic stops, but it also says that police have "unquestioned command" at a stop, and that "a sensible person would not expect a police officer to allow people to come and go freely from the physical focal point of an investigation into faulty behavior or wrongdoing. ... It is also reasonable for passengers to expect that a police officer at the scene of a crime, arrest, or investigation will not let people move around in ways that could jeopardize his safety." This language implies that police have the authority to detain passengers temporarily within the scope of the stop without individualized suspicion toward them, contrary to the holding of People v. Gonzales (1992) 7 Cal.App.4th 381, 386.
     The Supreme Court remanded the Brendlin case to the California Supreme Court to consider whether suppression of evidence would be an appropriate remedy when a concededly unreasonable stop led to discovery of an outstanding arrest warrant for a passenger who was in possession of illegal drugs.
     (The court also said in footnote 6 that taxi and bus passengers are not necessarily detained when the driver is stopped, depending on whether a reasonable passenger would have felt free to terminate the encounter with police.)

BOTTOM LINE: Passengers in a stopped vehicle that is not a common carrier are detained within the meaning of the Fourth Amendment, and so have "standing" to challenge the lawfulness of the stop.

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.


A PUBLICATION OF THE CRIMINAL JUSTICE SECTION OF THE LOS ANGELES COUNTY BAR ASSOCIATION
July 2007	Volume II , Number 2

COPYRIGHT © 2007 LOS ANGELES COUNTY DISTRICT ATTORNEY’S OFFICE. ALL RIGHTS RESERVED. MAY BE REPRODUCED FOR NON-COMMERCIAL PROSECUTORIAL, LAW ENFORCEMENT AND EDUCATIONAL PURPOSES ONLY. drutledge@lacountyda.org NUMBER: 2007-01 DATE: 02-02-07 BY: Devallis Rutledge TOPIC: Search & Seizure ISSUE: Does an anonymous 911 call of a recent dangerous crime justify an investigatory detention? In Florida v. J.L. (2000) 529 US 266, the Supreme Court ruled that an uncorroborated anonymous telephone tip that a particular person was carrying a concealed weapon was insufficient to justify detention by police. The California Supreme Court distinguished J.L. and upheld the stop of a DUI driver anonymously reported by another motorist, in People v. Wells (2006) 38 Cal.4th 1078. (See 1MB 2006-17.) Again distinguishing J.L., the court has now ruled that an anonymous 911 call of a particular person drawing a gun on the caller justified a detention and search a few minutes later. People v. Dolly (2007) ___ Cal.4th ___ , DJDAR 1443, WL 269449. A man called 911 and described another man who had "just pulled a gun on me." The caller gave a description of the vehicle the suspect was in, and its parked location. Minutes later, dispatched officers approached the car, saw Norman Dolly (who fit the description) ordered him out, and found his gun beneath the seat. Dolly's motion to suppress the gun and his admissions was denied, and the California Supreme Court affirmed. The court found four factors adequate to distinguish this case from J.L.: (1) unlike J.L., who was passively possessing a concealed firearm, Dolly had exhibited it at someone, thereby actively creating an immediate public danger; (2) Dolly's victim had used a 911 line to report the call, enabling police to trace the call and arrest the victim for making a false report if his call was a hoax, thus enhancing reliability; (3) the victim gave his basis of knowledge, telling police that he himself had just seen the suspect "pull a gun" on him; and (4) the victim gave a plausible reason for wanting to remain anonymous, telling police that he was in hostile gang territory where he would be in danger as an identified "snitch." "Under the totality of the circumstances, we find there was sufficient indicia that the 911 caller was able to see the criminal conduct he was reporting, that he was reporting it truthfully and accurately, and thus that the tip was sufficiently reliable to justify the limited intervention of an investigatory detention, which led to discovery of the loaded revolver." People v. Dolly, supra. The Dolly decision provides several factors that may be used to distinguish J.L. in the case of police actions prompted by anonymous tips, and points up the importance of police officers and dispatchers making an effort to obtain information from anonymous informants that shows the basis for their tips, their reasons for not identifying themselves, and details of the suspect's conduct, as well as documenting the fact that a particular anonymous tip came by 911 call. BOTTOM LINE: A detailed, anonymous, 911 call of contemporaneous or recent dangerous criminality may constitute reasonable suspicion. Back to Top NUMBER: 2007-05 DATE: 05-23-07 BY: Devallis Rutledge TOPIC: Trial Practice *ISSUE: Can a defendant's pre-Miranda* silence be used as substantive evidence of his guilt?** In limited circumstances, a defendant's silence cannot be used against him. Neither an officer's testimony nor the prosecutor's argument may call attention to the fact that the defendant invoked Miranda. Miranda v. Arizona (1966) 384 US 436, 468, fn. 37. Nor may the jury be asked in any manner to draw an inference of guilt from the fact that the defendant did not testify at trial. Griffin v. California (1965) 380 US 609, 614. A testifying defendant cannot be impeached with evidence that he remained silent after Miranda warnings were given. Doyle v. Ohio (1976) 426 US 610, 619. On the other hand, pre-arrest silence may be used for impeachment. Jenkins v. Anderson (1980) 447 US 231, 240. Even post-arrest, pre-Miranda silence is admissible to impeach, absent circumstances indicating that the defendant's silence was an exercise of his right to remain silent. Fletcher v. Weir (1982) 455 US 603, 607. In many cases, of course, the defendant does not testify, so the impeachment rulings in Jenkins and Fletcher do not apply. However, evidence that the defendant kept silent in the face of accusations or under other circumstances where it would be natural for the innocent to speak up could arguably be probative of a consciousness of guilt, if constitutionally admissible. Unfortunately, the Supreme Court has not ruled on the extent to which pre-Miranda silence may be used as substantive evidence of guilt, when the defendant does not testify (see Fn. 2 in Jenkins, reserving the question). The Ninth Circuit has split the baby, depending on whether the proffered silence occurred before or after arrest: "The use of a defendant's pre-arrest, pre-Miranda silence is permissible as impeachment evidence and as evidence of substantive guilt." US v. Beckman (9th Cir. 2002) 298 F.3d 788, 795. However, "[W]hen the district court admitted evidence of Whitehead's post-arrest, pre-Miranda silence, and when it allowed the government to comment on this silence in closing argument, it plainly infringed upon Whitehead's privilege against [compelled] self-incrimination." US v. Whitehead (9th Cir. 2000) 200 F.3d 634, 639. Although California courts have not published a decision addressing the use of pre-Miranda silence as substantive evidence of guilt, a pending decision could address the issue. People v. Tackett (2006) 144 Cal.App.4th 445, rev. grtd. Because the US Supreme Court has not mandated exclusion of pre-Miranda silence as proof of guilt, California courts are powerless to create such a constitutional exclusionary rule on their own. People v. May (1988) 44 Cal.3d 309, 318. But evidence may be excluded under Evidence Code section 352 if it lacks substantial probative value, and “[i]n most circumstances, silence is so ambiguous that it is of little probative force.” United States v. Hale (1975) 422 U.S. 171, 176. Pre-Miranda silence constituting an adoptive admission is normally admissible as substantive evidence of guilt, unless circumstances indicate an exercise of constitutional rights. Evid. C. § 1221; People v. Jurado (2006) 38 Cal.4th 72, 116-17. BOTTOM LINE: Absent a US Supreme Court mandate to exclude pre-Miranda silence as substantive evidence of guilt on constitutional grounds, such evidence should be admissible in California trials, provided it meets applicable statutory admissibility standards, and provided the circumstances do not show that the defendant was merely exercising his right to silence. Back to Top NUMBER: 2007-06 DATE: 06-06-07 BY: Devallis Rutledge TOPIC: Confessions *ISSUE: How does a suspect "reinitiate" discussions with police after invoking Miranda?* Once a Mirandized custodial suspect invokes, his responses to subsequent police-initiated custodial interrogation are generally inadmissible to prove guilt. Miranda v. Arizona (1966) 384 US 436, 444. If the suspect invokes only the right to silence, and if that invocation is scrupulously honored, he may be re-approached later to seek a waiver and an admissible statement as to a different case. Michigan v. Mosley (1975) 423 US 96, 104-05 (two-hour interlude). On the other hand, if the suspect invokes his right to counsel, police may not obtain a valid waiver for an admissible statement by police-initiated interrogation as to any case while he remains in continuous custody, unless his attorney is present. Minnick v. Mississippi (1990) 498 US 146, 153. However, the suspect always retains the power to reopen discussions and give a valid waiver and an admissible statement. This is why officers confronting an invocation will often give the suspect a business card with their phone numbers and say, "Call me if you change your mind." As long as the facts show that it was the suspect, and not the police, who initiated further discussions about the case, a valid waiver and a fully-admissible statement can be taken. Examples: ● Oregon v. Bradshaw (1983) 462 US 1039, 1045-46. After requesting an attorney, the suspect asked, "What's going to happen to me now?" The Supreme Court ruled that this question "evinced a willingness and a desire for a generalized discussion about the investigation." The court said that after police took a "waiver of the previously asserted right,” they could interrogate and obtain an admissible statement. ● People v. Sapp (2003) 31 Cal.4th 240, 268. Twenty-four hours after invoking counsel, the suspect asked a jailer to summon the homicide investigators so he could admit to three murders. Following a waiver, his confession was admissible. ● People v. Waidla (2000) 22 Cal.4th 690, 729-32. Suspect's post-invocation question to detective, "What can I do to help you?" reinitiated discussions. Post-waiver statement was admissible. ● People v. Mattson (1990) 50 Cal.3d 826, 861-62. "I'd like to talk to you," reopened discussions and allowed a waiver and an admissible statement. ● People v. Thompson (1990) 50 Cal.3d 134, 164. Suspect reopened discussions by inquiring about his girlfriend/accessory's situation, and then waiving his rights. ● US v. Michaud (9th Cir. 2001) 268 F.3d 728, 738. After invocation, the suspect's cellmate told officers the suspect had information about a murder and wanted to talk to them. Officers confirmed this with the suspect and then took a waiver. The resulting statement was admissible. BOTTOM LINE: Once a suspect in custody has invoked counsel under Miranda, police may take an admissible statement if the suspect reopens discussions related to the case and waives the right previously asserted. Back to Top NUMBER: 2007-07 DATE: 06-18-07 BY: Devallis Rutledge TOPIC: Search & Seizure *Supercedes 1MB 2006-18, which appeared in the August 2006 edition of The Criminal Docket.* ISSUE: Is a passenger detained when the vehicle in which s/he is riding is stopped by police? In People v. Brendlin (2006) 38 Cal.4th 1107, the California Supreme Court ruled that passengers are not necessarily detained at a traffic stop just because their driver is. The US Supreme Court has unanimously reversed this ruling: "[T]he issue is whether a reasonable passenger would have perceived that the show of authority was at least partly directed at him, and that he was thus not free to ignore the police presence and go about his business. ... [A]ny reasonable passenger would have understood the police officers to be exercising control to the point that no one in the car was free to depart without police permission." Brendlin v. California (2007) 551 US ___ , WL 1730143. This decision holds that passengers will have "standing" to contest the validity of traffic stops, but it also says that police have "unquestioned command" at a stop, and that "a sensible person would not expect a police officer to allow people to come and go freely from the physical focal point of an investigation into faulty behavior or wrongdoing. ... It is also reasonable for passengers to expect that a police officer at the scene of a crime, arrest, or investigation will not let people move around in ways that could jeopardize his safety." This language implies that police have the authority to detain passengers temporarily within the scope of the stop without individualized suspicion toward them, contrary to the holding of People v. Gonzales (1992) 7 Cal.App.4th 381, 386. The Supreme Court remanded the Brendlin case to the California Supreme Court to consider whether suppression of evidence would be an appropriate remedy when a concededly unreasonable stop led to discovery of an outstanding arrest warrant for a passenger who was in possession of illegal drugs. (The court also said in footnote 6 that taxi and bus passengers are not necessarily detained when the driver is stopped, depending on whether a reasonable passenger would have felt free to terminate the encounter with police.) BOTTOM LINE: Passengers in a stopped vehicle that is not a common carrier are detained within the meaning of the Fourth Amendment, and so have "standing" to challenge the lawfulness of the stop. Back to Top 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 Beginning of This Issue