Tagged: police practices

Second Circuit: Admittance of Co-Defendant’s Redacted Confession Violated Confrontation Clause

A recent decision by the Second Circuit Court of Appeals may provide guidance to criminal defense practitioners seeking to (1) suppress the involuntary confession of a client, and (2) limit the impact of a co-defendants’ redacted confession being admitted at trial. The Second Circuit, sitting en banc, affirmed a panel’s decision to vacate the convictions of three defendants found guilty of conspiring to commit a Hobbs Act robbery, among other things, and brandishing a firearm in furtherance of a crime of violence. The Court had been asked by the government to review a panel decision that had formerly held that the “confession” of one of the defendant’s was involuntary and should not have been admitted against the declarant at trial. The government also sought review of the panel’s determination that the admission of the “confession” was also prejudicial to the declarant’s co-defendants, requiring a new trial. United States v. Taylor, 736 F.3d 661 (2d Cir. 2013).

A panel of the Court had held that the defendant’s Miranda waiver was not knowing and voluntary, given that the defendant was clearly mentally incapacitated during his interview with federal agents. Id. at 669. The panel noted that the defendant had ingested a quantity of Xanax pills immediately before his arrest, and not long before the interrogation by the FBI had begun. The panel pointed out that the defendant was “in and out of consciousness while giving his statement, and in a trance or a stupor most of the time when not actually asleep.” Id. at 670. As such, the panel determined that “the officers’ persistent questioning took undue advantage of [the] [defendants’] diminished mental state, and ultimately overbore his will.” Id. The panel concluded that the admission of the defendant’s involuntary confessions was a critical part of the prosecution’s case, and could not be deemed “harmless error beyond a reasonable doubt.” Id. at 672.

Notably, the Second Circuit (en banc) withdrew the panel’s prior decision, and issued a superseding opinion. States v. Taylor, 2014 WL 814861, (2d Cir. 2014). It not only reaffirmed the panel’s prior decision in all respects, but further held that the admission of the defendant’s “confession” at trial violated the Confrontation Clause rights of the other co-defendants. The Court ruled that the redacted confession simply did not comply with Bruton, and made it obvious to jurors that the declarant had implicated his co-defendants in the crime. The Court explained that the redacted version of the defendant’s statement suggested that the original statements contained actual names.

The Court took observance of the fact that the redacted statement had contained both the declarant’s name and the name of the government’s cooperating witness (“Luana Miller”), while referencing the other co-defendants by “two other individuals” or “driver.”  Id. The Court reasoned that the redacted confession allowed jurors to notice that “Miller is the one person involved who was cooperating, and [] infer that the obvious purpose of the meticulously crafted partial redaction was to corroborate Miller’s testimony against the rest of the group, not to shield confederates.” Id. at *11. The Court noted that “[i]f the defendant had been trying to avoid naming his confederates, he would not have identified one of them-Miller-in the very phrase in which the names of the other confederates are omitted.” Id.

The Court explained that “[o]nce it becomes obvious that names have been pruned from the text, the choice of implied identity is narrow. The unnamed persons correspond by number (two) and by role to the pair of co-defendants.” Id. at *12. The Court noted that the “obviously redacted confession … points directly to the defendant[s], and it accuses the defendant[s] in a manner similar to … a testifying codefendant’s accusatory finger.” Id. (quoting Gray, 523 U.S. at 194).  The Court concluded that the “awkward circumlocution used to reference other participants, coupled with the overt naming of Luana Miller (only), is so unnatural, suggestive, and conspicuous as to offend Bruton, Gray, and Jass.” Id.

While the Second Circuit’s decision is applaudable, it may leave many criminal defense practitioners pondering over the slew of similar cases that have come before the Circuit in the past without any success on this  issue. Both the language and form (identifying by name the declarant & cooperator(s), while others as “person/individual”) that the Court identified in Taylor appears to have been customarily approved by the Courts. Indeed, Federal prosecutors have routinely been able to utilize such redacted confessions, although the defense has routinely objected to its admission based upon the obvious nature of the redaction and the likelihood that the jury will infer that their client had been implicated by their cohort.  Nevertheless, the Second Circuit has finally spoken against this once unfettered practice, and provided some much needed guidance on the issue.

Related Readings

Search of Closed Containers Incident to Arrest: Is a Cell Phone Just Another Container? by Thomas Kapp

The Pace Criminal Justice Center is honored to feature an article by Thomas Kapp,  Search of Closed Containers Incident to Arrest: Is a Cell Phone Just Another Container?  Thomas Kapp is the Senior Investigative Attorney at the Bronx County District Attorney’s Office and a member of the Pace Criminal Justice Center Advisory Board. In his article, he

review[s] the current federal standard for a search incident to arrest of containers and how some federal and other state courts have addressed the search of a cell phone.  In addition, [he] discusses the development of the law in New York of the right of police to conduct a search incident to arrest of a closed container and will also address whether that right includes the search of a cell phone incident to arrest, an issue which may be ripe for our courts.

As the article notes, this issue will be decided this term by the United States Supreme Court.  Mr. Kapp concludes his analysis by assessing the future of searches of cell phones incident to arrest in the State of New York.

Enjoy reading the full article: Thomas Kapp – Search of Closed Containers Incident to Arrest: Is a Cell Phone Just Another Container?

Supreme Court “Consents” To Expanding Warrantless Search Exception

For the past forty years, the United States Supreme Court has continually tinkered with the exceptions to the Fourth Amendment’s general prohibition on warrantless searches, including the allowance of warrantless searches that are conducted after the police have obtained voluntary consent from the individual whose property is being searched. In 1974, the United States Supreme Court ruled that the Fourth Amendment recognizes a warrantless search of a premises when the police obtain the consent of an occupant who shares common authority over the property. United States v. Matlock, 415 U.S. 164, 170 (1974). Thereafter, the Court expanded its decision in Matlock to include situations where a warrantless search of a premises was conducted based upon the “consent of a third party whom the police, at the time of the entry, reasonably believe to possess common authority over the premises, but who in fact does not.”  Illinois v. Rodriguez, 497 U.S. 177, 186 (1990).  In 2006, the Court again modified its prior decisions on this issue, ruling that the consent of one co-occupant was insufficient to authorize police to conduct a warrantless search of a premises if another objecting occupant was “physically present” at the time. Georgia v. Randolph, 547 U.S. 103 (2006).

On Tuesday, the Court decided to rework its decision in Randolph, and severely limit its future application. In Fernandez v. California, the Court held that the rule set forth in Randolf was “extremely narrow,” and does not apply to situations when the police have received consent from one co-occupant after the objecting occupant had been removed from the premises. The Court explained that the co-occupant’s initial objection to the police’s entry is not everlasting, and can be overridden by the consent of a co-occupant after the objecting party is no longer present. Notably, the Court held that the consent of a co-occupant will authorize a search even when the objecting party has been removed from the premises involuntarily, including when removal occurs as a result of police conduct. The Court explained that searches occurring after the police have removed the objector will be permissible so long as the reason for removing the occupant was “objectively reasonable.” In Fernandez, the police had removed the objecting co-occupant after he was suspected of being involved in a robbery and believed to have battered his girlfriend moments before the police had arrived. Several hours later, the police returned to the residence and conducted a warrantless search of the premises based upon the girlfriend’s consent.

Three members of the Court (Justices Ginsburg, Sotomayor, & Kagan) disagreed with the majority’s decision, noting that “[i]n its zeal to diminish Randolph, today’s decision overlooks the warrant requirement’s venerable role as the “bulwark of Fourth Amendment protection.” They explained that “[r]educing Randolph to a “narrow exception,” the Court declares the main rule to be that “consent by one resident of jointly occupied premises is generally sufficient to justify a warrantless search. Such a declaration “has it backwards, for consent searches themselves are a “`jealously and carefully drawn’ exception” to “the Fourth Amendment rule ordinarily prohibiting the warrantless entry of a person’s house as unreasonable per se.” (citations omitted).

Related readings

Symposium on the Future of Stop and Frisk

The Criminal Justice Society at Pace Law School held a symposium last Tuesday (Oct. 22, 2014) on the future of stop and frisk in New York City.  Prof. David Dorfman moderated, and the panelists were Prof. Randolph McLaughlin, of Pace Law School; Mayo Bartlett, a Pace alum and private criminal defense attorney in White Plains; Heather MacDonald, a fellow at the Manhattan Institute;  and Police Officer David Rullo, a Pace student and a police officer in New Jersey.

The panelists began by debating the merits of Judge Scheindlin’s decision in Floyd, finding that the NYPD’s stop and frisk practices unconstitutional.  The disagreement was not so much over the Judge’s holding as it was over the facts upon which it rested, with Ms. MacDonald asserting that some of the fact finding was not supported by the evidence.  There was also disagreement about whether the Judge was correct in concluding that the racial breakdown of stop and frisk should reflect population demographics, as opposed to the demographics of who commits crimes.

Substantial discussion concerned the need for training police officers: Officer Rullo thought training on the constitutional dimensions of stop and frisk was inadequate and Ms. MacDonald thought the police should have training on how to treat people with respect.  Ultimately, Ms. MacDonald raised a concern that hamstringing the police in stop and frisk would lead to more crime, while Mr. Bartlett and Prof. McLaughlin focused on how many innocent people are arrested under current stop and frisk practices.  All of the panelists were concerned about the impact of stop and frisk – or of stopping the stop an d frisk policy – on the community.

The panelists also proposed solutions. Mr. Bartlett emphasized the need for incorporating police officers into the community.  A reform of the stop and frisk policy based on police presence would foster community relationships that could help police officers deter crime.

With the NYC mayoral election looming, many people worry about whether the crime rate will rise after Floyd and with a new administration.  Many people are debating whether we should reintroduce community policing and, if so, what the impact will be on the community.

Stop and Frisk Event at Pace Law School

Criminal Justice Society, a student organization at Pace, is proud to present an event entitled, “Stop and Frisk.” Join us on Tuesday, October 22, 2013 at 6:00-8:00 PM in Preston Hall, in the Tudor Room on the Pace Law School campus in White Plains for a discussion about the frequently debated police practice of STOP AND FRISK.

Guest speakers include: Prof. Randolph McLaughlin, Attorney Mayo Barlett, Police Officer David Rullo, and Heather MacDonald of the Manhattan Institute and the City Journal.

For more information, please contact Annmarie Stepancic at astepancic@law.pace.edu.

CJS Event: Stop and Frisk Discussion