G.P.S. Tracking by zhangyun


									 A Newsletter for the Criminal Justice Community                                                July 2009

                                G.P.S. Tracking
                                A burglary at the Latham Meat Mar-       there was simply no search within
                                ket store occurred July, 2008. The       the meaning of the federal or state
                                police suspected that Scott Weaver       constitutions.” (People v. Weaver,
                                was responsible. After an extensive      decided May, 2009).
                                investigation law enforcement could      ETD
                                not formulate probable cause to          An effective investigative tool util-
                                make an arrest. It was then decided      ized by law enforcement over the
                                to attach a GPS tracking device to       years is the electronic tracking de-
                                Weaver’s vehicle. This was accom-        vice (ETD), which has been vari-
In This Issue:                  plished by placing a magnetized unit     ously known as a “bumper beeper,”
                                to the underside of his vehicle while    “beacon,” “transponder,” and most
                                it was parked on a public street. Be-    recently a “GPS” (global positioning
     Questioning                cause the interior of the vehicle was    system) device. Each one is a small
                                not breached and the vehicle was out     electronic gadget that emits a peri-
     a Suspect                  in the open no search warrant was        odic radio signal at a set frequency.
                                secured. The police tracked              Directional finders allow law en-
                                Weaver’s comings and goings 24           forcement to determine the location
     Obstructing or             hours a day for 65 days straight. A      and movement of the object to which
     Free Speech?               burglary to the Latham K-Mart oc-        the ETD is attached. GPS utilizes
                                curred in December of the same year,     satellite technology, but the basic
                                and based upon the evidence ob-          concept is the same.
                                tained through the electronic surveil-     The devices are used to enhance
                                lance Weaver was arrested and con-       visual surveillance of vehicles, pack-
                                victed for the K-Mart burglary.          ages and airplanes. Their use dra-
                                  The New York State Court of Ap-        matically reduces both the expense
        Legal Eagle             peals found the police actions in vio-   and man hours needed to conduct
                                lation of the defendant’s 4th Amend-     routine surveillance. Moreover, an
        Published by:           ment rights. A dissenting justice        ETD minimizes the opportunity of
     Legal Eagle Services       wrote, “Although aspects of this case    detection by the target through
     West Palm Beach, FL        are indeed troubling — notably, the      counter- surveillance measures. As
            33401               unexplained length of time (65 days)     one court noted, an ETD
      B. Krischer, Editor       the GPS tracking device was affixed      “continually broadcasts the statement
                                to defendant’s van — I agree...that      ‘here I am.’ ”

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                                              1                                                       July 2009
Federal Laws                              plane, etc. Installation of necessity     search nor a seizure, a position es-
The use of an ETD does not involve        involves a trespass on, or entry into,    poused by the U.S. Supreme Court in
Title III considerations because these    the vehicle or airplane to install the    Karo. The Fifth Circuit also ruled
devices broadcast only a signal, and      ETD. In more direct terms the attach-     that DEA had sufficient “reasonable
are incapable of transmitting the spo-    ment does not require a warrant,          suspicion” of criminal activity to
ken word. In that they do not inter-      while the installation would require a    support the attachment of the ETD.
cept communications, they are not         search warrant to gain entry into a       “We hold that reasonable suspicion
regulated by federal wiretap law.         constitutionally protected area for the   is adequate to support warrantless
However, use of these devices do          installation.                             beeper installation.”
have constitutional, Fourth Amend-                                                    While recognizing that the attach-
ment, implications.                                                                 ment was technically a trespass, the
Constitutional Issues                                                               court went on to state, “The Supreme
The Supreme Court in considering                                                    Court has permitted the removal of
the legal issues arising from the use                                               paint scrapings from the exterior of
of an ETD device employed a bifur-                                                  an automobile, observing ‘We fail to
cated, or two prong, analysis. The                                                  comprehend what expectation of
Court separated the issues surround-                                                privacy was infringed. Stated simply,
ing the installation or attachment of                                               the invasion of privacy, if it can be
the device from the “monitoring” of                                                 said to exist, is abstract and
its signal. The two seminal cases                                                   theoretical.’ ”
decided more than two decades ago     Attachment                                      To state the obvious, while attach-
are: U.S. v. Knotts, 103 S.Ct. 1081   In 1981, more than two years before           ing an ETD to the exterior of a vehi-
(1983); and U.S. v. Karo, 104 S.Ct.   the U.S. Supreme Court decided                cle, van, aircraft, etc. has no Fourth
3296 (1984). More recently issues     Knotts and Karo, a Federal court              Amendment implications, entering
involving citizen privacy rights have decided U.S. v. Michael, 645 F.2d             upon private property to gain access
been injected into the discussion. A  252 (5th Cir. 1982). There the court          to the vehicle, van, aircraft, would.
case decided by the Supreme Court     stated that it had long been recog-           “As for the attachment of the beeper
of Washington found that the instal-  nized that an individual’s expectation        to the vehicle, it seems clear that if
lation of a GPS device required prior of privacy in an automobile is less           this is accomplished by entering a
judicial approval (warrant) because   than in other property. That the at-          garage or similar place in order to
the of the state’s specific privacy   tachment of a device was a minimal            gain access to the vehicle, then this
rights set forth in the Washington    intrusion into the defendant’s privacy        act in itself amounts to a Fourth
                                      rights. “Applying this dual privacy
state constitution. See, State v. Jack-                                             Amendment search.” LaFave,
son, (Wash. 2003).                    and intrusiveness analysis to the facts       1 Search and Seizure 419.
Fourth Amendment                      of the instant case, we hold that the         Installation
For Fourth Amendment purposes         minimal intrusion involved in the             An interesting set of facts took place
there is a substantial and meaningful attachment of a beeper to Michael’s           in Johnson v. State, 492 So.2d 693
difference between the attachment of van, parked in a public place, was             (5DCA 1986), that is instructive for
an ETD and the installation of the    sufficiently justified so as to satisfy       this discussion. Ocala police ob-
same device. Attachment pre-          any of Michael’s Fourth Amendment             tained a court order authorizing them
supposes a minor intrusion for the    expectation of privacy concerns.”             to enter the defendant’s Cessna air-
sole purpose of attaching the device    The Fifth Circuit went on to find           plane to replace the transponder
to the exterior of the vehicle, air-  that the attachment was neither a             therein to facilitate tracking the air-

 Legal Eagle                                              2                                                       July 2009
craft without the pilot’s knowledge.   livered to the defendant for transport-   his own home or office, is not a sub-
At the same time, without court au-    ing chemical precursors utilized in       ject of Fourth Amendment protec-
thorization, they entered the rear of  the manufacture of illicit drugs.         tion.” The facts of Knotts were sim-
the aircraft and installed an ETD. As  Knotts was decided first, and in-         ply that law enforcement utilized the
luck would have it, the transponder    volved law enforcement obtaining          ETD to augment their surveillance
failed but the ETD operated flaw-      consent from the seller of a drum of      efforts, much the same as night vi-
lessly. The aircraft’s movements       chloroform to place an ETD in the         sion goggles allow law enforcement
were monitored and as a result con-    drum prior to its delivery to the de-     to view what is in plain view in the
traband was seized and the defendant   fendant. The ETD allowed law en-          dark of night. “Insofar as respon-
arrested.                              forcement to track the movements of       dent’s complaint appears to be sim-
  The DCA made short work of the       the drum, by both visual surveillance     ply that scientific devices such as the
appeal. Finding that the entry to in-  and monitoring the signal, until the      beeper enabled the police to be more
stall the ETD was without judicial     drum arrived at the defendant’s           effective in detecting crime, it simply
approval, and that signal was the sole cabin. Law enforcement officers then      has no constitutional foundation. We
source for tracking and arresting the  obtained a search warrant for the         have never equated police efficiency
defendant, the Fourth Amendment        cabin, discovering the drum and a         with unconstitutionality, and we de-
mandated suppression of the evi-       drug lab therein. No warrant was          cline to do so now.” Knotts, at 1086,
dence. “Here, by installing a device   ever requested for the placement of       (emphasis added).
not authorized by the warrant, the     the ETD in the drum or to monitor its       Interestingly, the Fifth Circuit in
officers went beyond the terms of the  movements.                                U.S. v. Michael, above, came to the
warrant. As to the State’s second        The Court in its opinion found that     same conclusion, “The subsequent
argument, that authorizing the instal- no information concerning any activ-      monitoring also did not violate Mi-
lation of one specifically designated  ity inside the cabin was discerned by     chael’s reasonable expectation of
device authorizes the installation of  the presence of the ETD inside the        privacy. The beeper only aided the
two or more, is so obviously devoid    drum, inside the cabin. And this is       agents in the performance of their
of merit as to require no discussion.” the distinguishing fact between           lawful surveillance. The van traveled
                                       Knotts and Karo. “There is no indi-       public roads and was exposed to
                                       cation that the beeper was used in        public view.” See also, Fotianos v.
                                       any way to reveal information as to       State, 329 So.2d 397 (1DCA 1976).
                                       the movement of the chloroform              The Court in Knotts concluded by
                                       container within the cabin, or in any     asking their opening question, did
                                       way that would not have been visible      the monitoring of the signal invade
                                       to the naked eye from outside the         any legitimate privacy rights the de-
                                       cabin.” “Nothing in the Fourth            fendant enjoyed? “For the reasons
                                       Amendment prohibited the police           previously stated, we hold they did
                                       from augmenting the sensory facul-        not. Since they did not, there was
Monitoring                             ties bestowed upon them at birth          neither a ‘search’ nor a ‘seizure’
As previously stated, the Knotts and with such enhancement as science            within the contemplation of the
Karo cases are the definitive cases    and technology afforded them in this      Fourth Amendment.”
from the U.S. Supreme Court in this case.”                                       U.S. v. Karo
area of the law. Interestingly, the      The ruling of Knotts in simplest        What a difference a fact makes. In
facts of both cases involve the use of terms was, “What a person know-           Knotts the ETD was not used to
an ETD secreted in a steel drum de- ingly exposes to the public, even in         monitor activity inside the defen-

 Legal Eagle                                            3                                                      July 2009
dant’s cabin. In Karo, that is exactly    The Court concluded that the           least where (as here) the technology
what occurred, and the information       “indiscriminate monitoring of prop-     in question is not in general public
was later utilized to obtain a search    erty that has been withdrawn from       use. This assures preservation of that
warrant. The warrant was later sup-      public view would present far too       degree of privacy against govern-
pressed by the U.S. Supreme Court        serious a threat to privacy interests inment that existed when the Fourth
as “fruit of the poisonous tree.”        the home to escape entirely some        Amendment was adopted.” Kyllo v.
  In Karo a DEA informant was in-        sort of Fourth Amendment over-          U.S., 121 S.Ct. 2038 (2001).
volved in the sale of 50 drums of        sight.”                                   Thus, there are some electronic
ether to the defendants. He author-                                              devices whose use without a judi-
ized law enforcement to place an                                                 cially approved warrant will be
ETD in one of the drums he deliv-                                                found violative of the Fourth
ered to the defendants. However, law                                             Amendment. In the case of thermal
enforcement lost track of the drum                                               imaging the Court found that while
through visual surveillance and even-                                            the device did not detect intimate
tually monitored the movements of                                                details of the interior of the home, it
the drum to the inside of the defen-                                             did violate the “sanctity of the
dant’s home solely through the use                                               home.” In People v. Weaver, the
of the ETD. The Court found that         Kyllo v. U.S.                           New York appellate court felt that
while the installation of the device     This line of cases raises another in-   the GPS technology had advanced so
violated no Fourth Amendment inter-      teresting issue. The general rule is    far that its use required judicial
ests of the defendant, due to the con-   that what is exposed to the public is approval.
sent of the informant, the monitoring    not protected by the Fourth Amend-        “Here, we are not presented with
of the signal from inside the privacy    ment, even if police utilize artificial the use of a mere beeper to facilitate
of his home, not open to visual sur-     sense-enhancing devices, e.g. bin-      visual surveillance during a single
veillance, certainly did. In typical     oculars. However, technology can trip. GPS is a vastly different and
fashion the Court reduced the ques-      go too far, and invade a person’s       exponentially more sophisticated and
tion to its core constitutional issue:   reasonable expectation of privacy,      powerful technology that is easily
  “In this case, had a DEA agent         even if law enforcement is outside      and cheaply deployed and has virtu-
thought it useful to enter the Taos      the constitutionally protected area.    ally unlimited and remarkably pre-
residence to verify that the ether was   Thus, where police used an infrared cise tracking capability. With the
actually in the house and had he done    thermal device to detect heat distri- addition of new GPS satellites, the
so surreptitiously and without a war-    bution patterns within a home that      technology is rapidly improving so
rant, there is little doubt that he      were not detectable by the naked eye that any person or object, such as a
would have engaged in an unreason-       or other senses, the surveillance was car, may be tracked with uncanny
able search within the meaning of the    found to be a particularly intrusive    accuracy to virtually any interior or
Fourth Amendment. For purposes of        means of observation that exceeded exterior location, at any time and
the Amendment, the result is the         allowable limits. “Obtaining by         regardless of atmospheric conditions.
same where, without a warrant, the       sense-enhancing technology any          Constant, relentless tracking of any-
Government surreptitiously employs       information regarding the home’s        thing is now not merely possible but
an electronic device to obtain infor-    interior that could not otherwise       entirely practicable, indeed much
mation that it could not have ob-        have been obtained without physical more practicable than the surveil-
tained by observation from outside       ‘intrusion into a constitutionally pro- lance conducted in Knotts. GPS is
the curtilage of the house.”             tected area,’ constitutes a search at   not a mere enhancement of human

 Legal Eagle                                              4                                                    July 2009
sensory capacity, it facilitates a new     with them, and what we do and do          because if truly exigent circum-
technological perception of the world      not carry on our persons -- to men-       stances exist no warrant is required
in which the situation of any object       tion just a few of the highly feasible    under general Fourth Amendment
may be followed and exhaustively           empirical configurations.” (People v.     principles.”
recorded over, in most cases, a prac-      Weaver).                                    The court then went on to set out
tically unlimited period. The poten-         The U.S. Supreme Court antici-          the elements of a beeper warrant,
tial for a similar capture of informa-     pated this day back in 1983 when          “…it will still be possible to describe
tion or “seeing” by law enforcement        they decided Knotts. There the de-        the object into which the beeper is to
would require, at a minimum, mil-          fendant expressed the view that the       be placed, the circumstances that led
lions of additional police officers and    Court’s holding would result in           agents to wish to install the beeper,
cameras on every street lamp.”             “twenty-four hour surveillance of         and the length of time for which
                                           any citizen of this country ... without   beeper surveillance is requested. In
                                           judicial knowledge or supervision.”       our view, this information will suf-
                                           The Court responded, “if such drag-       fice to permit issuance of a warrant
                                           net type law enforcement practices as     authorizing beeper installation and
                                           respondent envisions should eventu-       surveillance.”
                                           ally occur, there will be time enough     Conclusion
                                           then to determine whether different       It is quite clear that the installation of
                                           constitutional principles may be          a tracking device inside a constitu-
                                           applicable.”                              tionally protected area, whether a
                                             Later in Karo the Court ruled, “The     vehicle, airplane, boat, etc. requires a
Privacy                                    Government argues that the tradi-         search warrant to authorize the entry.
While it is true that the Conformity       tional justifications for the warrant     With or without entry, even the at-
Amendment to Florida’s constitution        requirement are inapplicable in           tachment of a device to the under
requires Florida courts to conform         beeper cases, but to a large extent       carriage of the object to be tracked
their opinions relative to 4th Amend-      that argument is based upon the con-      should be accompanied by a “beeper
ment issues to the position taken by       tention, rejected above, that the         warrant.” As can be seen from the
the U.S. Supreme Court, Florida’s          beeper constitutes only a minuscule       cases above, if something can go
unique Privacy amendment to its            intrusion on protected privacy inter-     wrong, it will, and sole reliance on
constitution could push the Florida        ests. The primary reason for the war-     the tracking signal rather than en-
court’s to agree with the New York         rant requirement is to interpose a        hancing ordinary surveillance has the
state ruling.                              ‘neutral and detached magistrate’         potential of raising constitutional
  Art. 1, sec.23 of the Florida Consti-    between the citizen and ‘the officer      issues. Given the simple require-
tution creates a right of privacy in       engaged in the often competitive          ments set out by the U.S. Supreme
every person “to be let alone and free     enterprise of ferreting out               Court for the application of a “beeper
from governmental intrusion into the       crime.’ ..Requiring a warrant will        warrant” good sense would dictate
person’s private life…”                    have the salutary effect of ensuring      the application of a warrant except in
  “And, with GPS becoming an in-           that use of beepers is not abused, by     the most exigent circumstances.
creasingly routine feature in cars and     imposing upon agents the require-         BEK
cell phones, it will be possible to tell   ment that they demonstrate in ad-
from the technology with ever in-          vance their justification for the de-
creasing precision who we are and          sired search. This is not to say that
are not with, when we are and are not      are no exceptions to the warrant rule,

 Legal Eagle                                               5                                                         July 2009
                          Recent Case Law
Questioning a Suspect                    proceeding.                               questioning, “that typically does the
After Counsel Has Been                     d. The Louisiana Supreme Court          trick.”
Appointed:                               upheld the conviction finding that the      d. “As a general matter . . . an ac-
Montejo v. Louisiana                     Jackson rule was not triggered unless     cused who is admonished with the
Decided May 26, 2009                     the defendant had actually requested      warnings prescribed by this Court in
                                         a lawyer or had otherwise asserted        Miranda . . . has been sufficiently
I. Decision of the United
States Supreme Court:                    his Sixth Amendment right to coun-        apprised of the nature of his Sixth
a. On May 26, 2009, the United           sel; and that, since Montejo was si-      Amendment rights, and of the conse-
States Supreme Court issued an opin- lent at his hearing while the judge           quences of abandoning those rights,
ion that expands the ability of law      ordered the appointment of counsel,       so that his waiver on this basis will
enforcement to interview a suspect       he had made no such request or as-        be considered a knowing and intelli-
after he has had counsel appointed.      sertion.                                  gent one.”
  b. During a court hearing defendant e. The U.S. Supreme Court agreed               e. The Jackson rule presumed that
Montejo was charged with first-          with the result but not the logic util-   once counsel had been appointed the
degree murder and appointed counsel ized by the State Supreme Court.               accused was “not subject to further
by the judge. After the court appear- Instead they chose to overrule their         interrogation by the authorities until
ance, and prior to the defendant         decision in Michigan v. Jackson.          counsel had been made available.” In
meeting with his court appointed         II. Miranda and the Sixth                 other words, “we presume such
lawyer, the police approached Mon- Amendment:                                      waivers involuntary ‘based on the
                                         a. The U.S. Supreme Court empha-          supposition that suspects who assert
tejo, read him his rights pursuant to
                                         sized that once the adversary judicial    their right to counsel are unlikely to
Miranda v. Arizona, at which time he
                                         process had begun the Sixth Amend-        waive that right voluntarily’ in sub-
waived counsel and agreed to assist
                                         ment guaranteed a defendant the           sequent interactions with police.”
the police in finding the murder
                                         right to have counsel present at all
weapon. While with the police Mon-                                                 III. Overruling Michigan
                                         “critical” stages of the criminal pro-    v. Jackson:
tejo wrote an inculpatory letter of
                                         ceedings.                                 a. The Supreme Court found the
apology to the victim’s widow. The
                                           b. However, the right to counsel        logic of Jackson flawed, “…it would
letter was admitted into evidence at
                                         may be waived by a defendant so           be completely unjustified to presume
the trial, and Montejo was convicted
                                         long as the waiver of the right is vol-   that a defendant’s consent to police-
of first degree murder.
                                         untary, knowing, and intelligent.         initiated interrogation was involun-
  c. On state appeal it was argued that
                                         And, the defendant may waive the          tary or coerced simply because he
the letter should not have been ad-
                                         right whether or not he is already        had previously been appointed a
missible, as it was violative of the
                                         represented by counsel. The decision      lawyer.”
rule of Michigan v. Jackson. In that
                                         itself need not be counseled.               b. The Court went on to weigh the
decision the U.S. Supreme Court
                                           c. When a defendant is read his         Jackson rule’s benefits against its
prohibited the police to initiate inter-
                                         Miranda rights and agreed to waive        costs. “We think that the marginal
rogation of a criminal defendant once
                                         those rights, including the right to      benefits of Jackson (the number of
he had invoked his right to counsel at
                                         have counsel present during the           confessions obtained coercively that
an arraignment or similar

 Legal Eagle                                             6                                                      July 2009
are suppressed by its bright-line rule    point, not only must the immediate         suspect.’ The prohibition on further
and would otherwise have been ad-         contact end, but ‘badgering’ by later      questioning applies not only when
mitted) are dwarfed by its substantial    requests is prohibited.” Accordingly,      the defendant requests counsel, but
costs (hindering ‘society’s compel-       the protection of the Jackson rule is      also when the defendant exercises his
ling interest in finding, convicting,     simply not needed.                         or her right to remain silent.” See,
and punishing those who violate the       V. What’s Changed?:                        Cuervo v. State, 967 So.2d 155
law.’ ” The Court concluded that the      a. Prior to its ruling in Montejo the      (Fla. 2007).
Jackson rule “does not pay its way,”      U.S. Supreme Court ruled that once
and thus the case should be over-         counsel had been appointed to a de-
ruled.                                    fendant the police could have no           Confessions – Voluntary
IV. Restatement of the                    contact with him without his counsel       State v. Hunt, 2DCA
Law:                                      being present. The Montejo decision
a. The Supreme Court found that the                                                  Facts:
                                          found that rule overly restrictive of
Jackson rule was unnecessary be-                                                     On October 31, 2007, Mr. Hunt, who
                                          law enforcement’s ability to solve
cause of three other overlapping                                                     had recently been released from
                                          cases, and added no real protection to
cases to the same effect:                                                            prison, was arrested for a violation of
                                          the accused. As a result they ruled
   i. Under Miranda’s protection of                                                  his probation. Following the arrest,
                                          that even after counsel had been ap-
the right to remain silent, any suspect                                              Detectives of the Manatee County
                                          pointed to a defendant, unless the
subjected to custodial interrogation                                                 Sheriff's Office interviewed Mr.
                                          defendant had affirmatively asserted
had the right to have a lawyer present                                               Hunt concerning a pending homicide
                                          his right to remain silent or to inter-
if he so requested, and to be advised                                                investigation. The entirety of the
                                          act with the police through counsel,
of that right.                                                                       interview was recorded on videotape.
                                          the police may have direct contact
   ii. Under the Edwards’ case once                                                  Hunt was advised of his rights in
                                          with him. And so long as the accused
the defendant had asserted the pro-                                                  accord with Miranda and executed a
                                          is advised of his right to the presence
tection of the Miranda rights, such a                                                written waiver of his rights. Before
                                          of counsel, and all the other rights set
defendant “had invoked his right to                                                  beginning the interview the detec-
                                          forth in the Miranda warnings, the
have counsel present,” as a result                                                   tives offered Hunt a drink and he
                                          defendant was free to waive those
interrogation must stop.                                                             instead said he wanted a cigarette.
                                          rights and engage law enforcement.
   iii. And pursuant to the Minnick                                                  Detective Levita told Hunt that they
                                            It will be incumbent upon law en-
case the protection set out in                                                       would go outside later and allow him
                                          forcement to establish in court by
Edwards assured that no subsequent                                                   to smoke then. After speaking with
                                          clear and convincing evidence that
interrogation was to take place until                                                the detectives for approximately
                                          the waiver of counsel was freely and
counsel was present, “whether or not                                                 thirty minutes, Hunt declared, “I’m
                                          voluntarily made and that police did
the accused has consulted with his                                                   through talking, man.” The detec-
                                          not “badger” the accused to induce
attorney.”                                                                           tives immediately stopped asking
                                          him to waive those rights.
  b. The Supreme Court found these                                                   questions about the homicide investi-
                                            b. The Montejo decision does not
three rulings sufficient to protect the                                              gation.
                                          otherwise alter the basic rule that,
rights of a defendant. “Under the                                                      Immediately following Hunt’s in-
                                          “after a suspect invokes his or her
Miranda-Edwards-Minnick line of                                                      vocation of his right to remain silent,
                                          Miranda rights, police officers are
cases, a defendant who does not want                                                 Detective Waldron asked Mr. Hunt:
                                          prohibited from engaging in words or
to speak to the police without coun-                                                 “You want to go have that cigarette
                                          actions that the officers ‘should
sel present need only say as much                                                    now?” Hunt agreed. Detective Wal-
                                          know are reasonably likely to elicit
when he is first approached and                                                      dron then escorted Hunt to the out-
                                          an incriminating response from the
given the Miranda warnings. At that                                                  side of the building. The two men

 Legal Eagle                                               7                                                       July 2009
were outside for 20 minutes smok-         Issue:                                  to the second step of the analysis. In
ing. While outside Hunt reinitiated       The trial court granted the defen-      the second step, the court must deter-
contact with the detective. Waldron       dant’s motion to suppress the second    mine who reinitiated the dialogue. In
testified, “Mr. Hunt initiated the con-   portion of the interview finding that   cases where the police reinitiated the
versation, kept telling me that, you      after Hunt refused to speak the first   dialogue, courts must examine the
know, he had nothing to do with           time the deputies did not scrupu-       following factors: (1) whether the
this... Said, you know, the victim was    lously honor his right to remain si-    suspect was informed of his or her
family and he would never do any-         lent. The court stated that the detec-  Miranda rights at the outset of each
thing like this.”                         tives must refrain from “any words      interrogation, (2) whether the police
  “And he kept asking more ques-          or actions that the police should       immediately ceased questioning after
tions, I had reminded him a couple of     know are reasonably likely to elicit    the suspect invoked the right,
times, you know, I said, ‘Arthur,         an incriminating response from the      (3) whether there was a sufficient
you asked for an attorney, you said       suspect.” The trial court found that    lapse of time between the invocation
you didn’t want to talk any more, but     Det. Waldron had intentionally set      of the right and the resumption of
you’re asking me these questions.’        the stage for Hunt to reinitiate con-   questioning, (4) whether questioning
And he says, ‘Well, I got to know,        tact. Additionally, the trial court     resumed at a different location, and
you know, I need to know what’s           found that not re-advising Hunt of      (5) whether the two rounds of ques-
going on here.’ And I said, ‘when we      his Miranda rights prior to the sec-    tioning concerned different crimes.”
get back upstairs, if you want to talk    ond interview was fatal to the volun-     “However, where it was the suspect
about this case and ask Detective         tariness issue. The State appealed the  who reinitiated the dialogue with the
Levita questions, you need to make        order of suppression, and the 2nd       authorities, the inquiry is different.
that clear to Detective Levita, who’s     DCA disagreed with the trial court.     Under these circumstances, the
the lead investigator. And we can go      Re-initiating Contact                   courts consider whether the suspect’s
back, but any questions you may ask       After Miranda                           decision to change his or her mind
or we may ask will have to be back        The DCA stated the applicable law: and to waive his or her rights by
on tape.’ ”                               “Where, as here, a suspect has made speaking with the authorities was
  Once back inside the D-Bureau,          statements to the police after invok- voluntary, knowing, and intelligent.
Hunt confirmed that he wanted to          ing his right to remain silent, the     Where the defendant initiates further
speak to the detectives, and the inter-   correct approach to determining         communications, the passage of time
view resumed. The detectives did not      whether the police have scrupulously after the invocation of Miranda
repeat the Miranda warnings that          honored the suspect’s right to remain rights is not a critical element.”
they had previously given. During         silent may require a two-step analy-      The DCA found that the testimony
the course of the second portion of       sis. In the first step, courts must de- at the suppression hearing estab-
the interview, Hunt said that he had      cide whether the police continued to lished that Hunt did in fact consent to
been in possession of a gun three         interrogate the suspect despite his or go for a smoke and that he alone
days before the homicide occurred.        her invocation of the right to remain reinitiated contact reference the
After additional conversation, Hunt       silent. If the police continued the     homicide. Accordingly, the detec-
once again invoked his right to re-       interrogation, then they failed to      tives had not violated the spirit of
main silent, and the detectives termi-    scrupulously honor the right to re-     Miranda.
nated the interview. Hunt was ar-         main silent and the resulting state-      The DCA also spoke to the failure
rested and charged with Possession        ments are inadmissible.”                to re-advise the Miranda warnings
of a Firearm by a Convicted Felon.          “On the other hand, if the interroga- prior to the second statement. They
                                          tion ceased, the court must proceed     pointed to many cases that have

 Legal Eagle                                              8                                                    July 2009
rejected the notion that a complete       middle of the crowd, was yelling         the deputies or some other reason
re-advisement of Miranda warnings         “Why are you leaving?” and “Don’t        until K.A. started yelling that they
is necessary every time an accused        leave. They can’t do anything about      did not have to. On this basis, it ap-
undergoes additional custodial inter-     it.” Deputy Behnam told K.A. to stop     pears that the deputies’ alleged in-
rogation. The failure to re-advise a      yelling at the crowd, but K.A. kept      vestigation of a disturbance was no
suspect of his or her Miranda rights,     yelling. The Deputy then advised         investigation at all and, therefore,
“in and of itself, does not mean that     him that if he continued to do so, he    they were not executing a legal duty.
the suspect’s waiver was invalid.”        would be arrested. K.A. ignored          Protected Speech:
Here, Hunt was not re-advised about       Deputy Behnam’s request, and he          The evidence was that K.A. was in a
his Miranda rights, but Detective         was arrested.                            parking lot with 600 people who
Waldron reminded Hunt that he had         Issue:                                   were dispersing by running. K.A.
said that he did not want to talk any     Did K.A.’s actions constitute Ob-        yelled, “Why are you running? They
further. Additionally, Detective          structing Without Violence, or           can’t -- Police can’t do anything
Levita had just advised Hunt about        merely an exercise of his First          about it. Why are you running?”
his Miranda rights less than an hour      Amendment rights?                        K.A.’s words did not rise to the level
before the second interview began.        Legal Elements of                        of obstruction. If anything, urging
                                          Obstruction:                             the crowd of people not to run could
                                          To support a conviction under sec-       be viewed as intending to prevent
Obstructing or
                                          tion 843.02, the State must show: (1)    panic. In short, his conduct and
Protected Speech:
                                          the officer was engaged in the lawful    speech fell within the protections
K.A., a child, v. State
                                          execution of a legal duty; and (2) the   afforded by the First Amendment.
4DCA (June 10, 2009)
                                          action by the defendant constituted      Obstructive conduct rather than of-
Facts:                                    obstruction or resistance of that law-   fensive words are normally required
This incident occurred at the Galaxy      ful duty. “On the question of whether    to support a conviction under this
Skating rink which was closed for         the officer was performing a legal       statute.
the evening. There were approxi-          duty, it is important to distinguish     Actively Resisting Without
mately 600 to 700 people in the park-     between a police officer ‘in the law-    Violence:
ing lot. Deputy Behnam and several        ful execution of any legal duty’ and a   As such, the arrest for Obstruction
other deputies were at the rink to        police officer who is merely on the      was unlawful, and K.A. was free to
assist with crowd control. There is no    job.”                                    resist the arrest without violence.
evidence that any of the young peo-         The trial court determined that K.A.   The court held an essential element
ple congregating in the parking lot of    was charged with interfering with the    of resisting an officer without vio-
the Galaxy Skating rink were tres-        investigation of a disturbance. The      lence is that the arrest is lawful. If an
passing, in violation of any curfew,      4th DCA disagreed. For the arrest to     arrest is not lawful, then a defendant
or otherwise engaging in any unlaw-       be legal, the police must be execut-     cannot be guilty of resisting it. The
ful activity. Deputy Behnam ob-           ing a legal duty. The evidence pre-      common law rule still remains that a
served the crowd in the parking lot.      sented was that the deputies were at     person may lawfully resist an illegal
He testified that based upon his train-   the skating rink at closing time be-     arrest without using any force or vio-
ing and experience, he thought a          cause sometimes there were distur-       lence. “One can resist an officer who
fight was taking place. He and other      bances or fights. On this night, nei-    is not lawfully performing his duty,
deputies approached the crowd to          ther deputy testified that there were    so long as that resistance is without
disperse it. While some people were       any fights. In fact, the people were     violence.” Lowery v. State, 356
running away screaming, K.A., in the      running away due to the presence of      So.2d 1325 (4DCA 1978).

 Legal Eagle                                              9                                                       July 2009

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