By
John Reid & Associates
Earlier this year the nation was transfixed by the trial of Casey
Anthony, a young woman accused of murdering her two-year-old
daughter Caylee. During the course of the investigation Casey was
interviewed on several occasions and she told many confirmed lies.
The recorded interviews showed an apparently distraught but credible
woman who revealed no specific cues of deception while fabricating
explanations to account for her missing daughter. She explained away
incriminating circumstantial evidence and blatantly lied to specific
questions concerning her daughter’s disappearance with ease and
confidence.
Casey was described by experts as being “comfortable” lying. While
her detached affect, inappropriate attitudes and uncorroborated
explanations accounting for Caylee’s disappearance certainly raised
suspicions, she exhibited minimal nonverbal or paralinguistic
symptoms of anxiety, fear, guilt or decreased confidence normally
observed when a person tells a significant lie. In detection of
deception jargon, Casey would be described as a “good” liar.
The average person is not a good liar. Typically when someone tells
an important lie they will reveal symptoms such as averting eye
contact or altering their posture. They may engage in grooming
gestures like dusting imaginary lint from their clothing or
fidgeting with an article of jewelry. A person guilty of wrong-doing
usually displays particular attitudes like being unconcerned (“This
is not important to me), unhelpful (“I have no idea what happened
and have no information to help you”), unrealistic (“I don’t think
that fire was intentionally started”) or guarded: (Q: “Tell me
everything you did last Friday night.” R: “Nothing at all.”). The
bad liar may qualify his response (“to the best of my knowledge”) or
delay his response when answering a direct question.
To understand why some individuals are able to fabricate convincing
stories and tell lies seemingly at will without revealing any
observable symptoms of fear, guilt or decreased confidence it is
first necessary to understand what causes the various “behavior
symptoms” normally associated with lying. It is important to realize
that these behavior symptoms are not caused by lying.
Actors who read scripted lies such as, “I’m a doctor, you must not
move him!” do not display any behavior symptoms of deception. To the
contrary, on the big screen they look absolutely credible. Even a
lay person, relying on common sense and instincts, is able to make
many false statements without revealing any signs of deception,
e.g., “Johnny, you really played well today.” (Johnny played awful;)
“Honey, that dress makes you look so young.” (The wife still does
not look “so young”;) “I did not steal that money.” (The student,
participating in a laboratory study, was instructed to lie when
asked if he stole any money from the professor’s desk.)
The observable behaviors associated with lying result from the liar
experiencing some internal emotional or cognitive state caused by
the lie. These fall into three categories:
-
Fear from having to face the consequences they are trying to
avoid by telling the lie;
-
Guilt or shame experienced from violating social mores or
disappointing others, and
-
Affected cognitive processes such as having “mental blocks” or
inconsistent recollections, offering irrational explanations for
evidence, etc.
In short, a “good liar” does not experience these internal changes
when they lie (or does so in a diminished capacity). Listed below
are common factors that may decrease behavior symptoms of deception
when a person lies:
1. The suspect’s level of social responsibility. Suspects with low
levels of social responsibility may not exhibit typical symptoms of
deception when they lie. Individuals who fall within this category
include drug, alcohol or gambling addicts, suspects who are homeless
or individuals who are largely dependent on social services, parents
or others to provide food, shelter, health care and basic survival.
The absence of social commitment or responsibility to others causes
these individuals to essentially live in their own world where they
act impulsively and only for their own needs.
Individuals with low social responsibility tend to live in the
immediate “here and now”; they have learned that it is not necessary
to plan for the future because their future will be taken care of
(or they simply don’t care about their future). This explains why
such individuals sometimes get caught telling lies that are easily
proven to be untrue. As an example, a suspect while under the
influence of cocaine, threw his children off a balcony of his
apartment resulting in their death. Upon initial questioning the
suspect told the police that he had no children. After the
investigator pointed to a photograph depicting the suspect with his
children, the suspect confessed. Blatant, obvious lies of this
nature are typical of suspects with diminished social responsibility
and yet, when the lie is being told, specific symptoms of deception
may be absent.
2. The suspect’s intelligence. Individuals with a lower IQ (below
65) often do not appreciate potential consequences of committing a
crime, e.g., what life is like in prison; how a false allegation
affects the accused, etc. As a result, when they lie, their fear of
detection is decreased. Very simply, they are not highly motivated
to avoid detection, and therefore, may not display symptoms of
deception when they lie. For the same reason, they do not develop
typical attitudes associated with deceptive suspects, e.g., being
unhelpful, unconcerned or unrealistic.
3. Immaturity. This factor includes both youthful suspects (under
the age of 9) and older suspects with an arrested social
development. These individuals have little awareness or concern of
serious consequences of wrong-doing and intellectually operate only
in the here and now. In their minds they believe that the worst
thing that could happen to them is having some restriction placed on
their life (being sent to their room, being placed on probation) or
other minor inconvenience (a verbal reprimand, paying a fine) when
in truth, they could be facing life in prison. As a result, these
suspects often lie impulsively and they may not display specific
behavior symptoms of deception. Fortunately, with a little
investigation, these lies are frequently detected through
contradictory evidence.
4. Success at lying. A suspect who has experienced prior success at
telling a lie may experience greater confidence and less fear of
detection when repeating the same lie. After a lie is initially told
and has been accepted as the truth, the liar not only has greater
confidence of being able to get away with the lie a second time, but
also has had practice at presenting the lie in a convincing manner.
With each re-telling of the lie, the liar experiences greater
confidence in their ability to fool others.1
6. Interview environment and format. It is not an uncommon
occurrence for a person to address an audience, at a media press
release for example, and tell blatant lies without exhibiting any
symptoms of deception. There are two reasons for this. First, the
liar is in total control of their statements. Under this
circumstance the liar can carefully craft statements that are
comfortable and can be delivered in a convincing manner. It is a
one-way communication which the liar totally controls – they
experience no fear of having statements challenged, expanded upon or
otherwise scrutinized – in other words, the liar feels comfortable,
confident and in control.
Second, psychologically lying to a group of reporters or millions
of viewers on camera generates much less fear of detection than
having to lie to a single person, sitting four or five feet in front
of the subject, in a private environment. In this private
environment the liar recognizes that the investigator is actively
assessing his credibility, has control of the content of the
interview through the questions being asked and, most importantly,
has the ability to ask follow-up questions. Each of these factors
increases the liar’s fear of detection.
7. Mental illness. There is a wide spectrum of diagnoses involving
mental illness ranging from personality disorders through anxiety
and affect disorders and finally disorders that cause loss of touch
with reality such as bi-polar or schizophrenia. Within personality
disorders, the histrionic and anti-social personalities tend not to
experience significant guilt or fear when they lie and, therefore,
may come across as good liars. The intermediate anxiety and affect
disorders are much more likely to cause false positive errors (not
believing a truthful person). Finally, suspects who have delusions
or experience hallucinations will not exhibit meaningful behavior
symptoms because their mind has created a new reality, and they have
accepted what they are saying as the truth.
In summary, behavior symptom analysis involves making inferences
about another person’s credibility and will never be a perfect
science. Because of this, opinions of truth or deception should
never be based solely upon a person’s behavior. Behavior symptoms
should be considered along with evidence and other investigative
findings. Finally, training in behavior symptom analysis should
include not only information regarding truthful or deceptive
behavior symptoms but also emphasize the factors that may lead to a
mis-diagnosis of a person’s credibility – both false positive and
false negative errors. This tip has focused on factors that may
cause a liar to appear as credible. While some of these factors can
be controlled by the investigator, e.g., interviewing a person in a
private environment using a structured interview format, many of
them are intrinsic within the suspect. Suffice it to say that before
rendering any opinion of another person’s credibility it is
important to evaluate factors that may affect the validity of that
assessment and, whenever possible, attempt to verify a suspect’s
verbal statements through standard investigative procedures.
-----------------------------
Credit and Permission Statement: This Investigator Tip was developed
by John E. Reid and Associates Inc. Permission is hereby granted to
those who wish to share or copy the article. For additional 'tips'
visit
www.reid.com;
select 'Educational Information' and 'Investigator Tip'. Inquiries
regarding Investigator Tips should be directed to Janet Finnerty
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For more information regarding Reid seminars and training products,
contact John E. Reid and Associates, Inc. at 800-255-5747 or
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|
Great Tool for Investigators
Law enforcement agencies find social
media networks to be an effective tool in catching
criminals, especially organized gangs.
Gang members have been captured after
posting photographs of themselves on Facebook or Twitter
displaying tattoos and inscribed gang necklaces. Some of
the suspects pose on Facebook with stolen money or guns,
or show videos of themselves on YouTube with cars that
have been identified as evidence in a crime, officials
said. “They
want to brag,” said Greg Antonsen, deputy inspector for
the New York Police Department. “Never underestimate
their desire to show off. It works against them.”
Federal, state and local agencies are
using as investigative evidence some photographs,
tweets, social linkages and social events posted
publicly on the Web to identify and track suspected
criminals. In one case, a man wanted for felony theft
was captured after posting on Twitter that he would be
hosting his own birthday party at a specific venue and
listing a specific date and time. “We had two detectives
grab him up when he got out of the limo. He never got to
celebrate his birthday,” Antonsen said.
Suspected gang members actively use
popular sites such as Facebook, MySpace, YouTube and
Twitter, but they also migrate to dozens of lesser-known
social networking sites, including sites for popular
nightclubs, officials said.
Law enforcement agencies can use
Internet Protocol addresses at nondescript locations,
such as the public library or local college, so that it
is more difficult for suspects to realize their computer
activity is being tracked by police.
After finding possible evidence on the Web, it is
a good idea to do a dated screen-capture of the Web page
immediately to safeguard against the possible removal of
the evidence at a later date, he said.
Law enforcement officials need
in-depth knowledge of software and social media tools to
outwit the increasingly sophisticated criminals using
those tools.
Easy Street Social
Easy Street
Social founder, David Blide, has over 10 years
experience in the social media industry.
A pioneer in the field, he
created one of the first social media training programs
in the nation that was adopted by an accredited
institute of higher learning.
Easy Street Social
specializes in helping small business owners understand
the powerful tools available with social media.
Easy Street Social
works "one on one" with your company to develop a
strategy that reflects your business goals.
www.easystreetsocial.com
|
Interesting perceptive from someone who treats officers.
Lisa Wimberger
Considering that Occupy Wall Street has put our nation’s law
enforcement ethics on center stage, it seems more relevant now
than ever, to address this topic. I am not an officer, but
because I consult for many agencies as a stress-management
practitioner, I do have the benefit of a unique perspective to
offer you.
I am not interested in consensus on whether cops are
good
or
bad.
Admittedly, it’s a loaded question. Those in the profession will
defend its honor, and those on the civilian side of its
sometimes-misguided force, might say that cops are bad.
I’m interested in giving you an insider’s glimpse
into some of the insidious nuances of the profession so that
you, too, will never again look at this topic as having a
black-and-white answer.
Here is a very basic distillation of some of the most recent
statistics in the profession.
• Cops have the highest rate of divorce, alcohol abuse,
substance abuse and clinical depression out of any profession.
• One in three cops suffers Post Traumatic Stress Disorder
(PTSD), which is more than the statistics for the military.
• The life spans of cops are, on average, 10 years shorter than
in any other profession.
• A cop’s risk of depression and suicide increases drastically
after retirement.
• Four times more cops die from suicide than in the line of
duty.
• According to the Badge of Life organization, cops have the
next highest rate of suicide after the Marines. With an
estimated 450 officer suicides a year, even if that number were
reduced by half, that would still mean twice as many officers
die from suicide than from felons.
Why is this?
My experience over the last five years of working with
law-enforcement agencies has revealed to me a very ailing and
desperate industry. Cops see, experience and hear about more
traumas on a daily basis than most individuals. Potential and
perpetual exposure to theft, domestic abuse, substance abuse,
rape, incest, drug trafficking,
human trafficking, crimes against children, homicide, serial
killing, and mental neglect and disease permeates each and
every workday.
As this becomes the norm, a cop is primed to
function at a high state of alert at all times.
This mental state is the prime function of the limbic brain.
When the limbic brain is active it floods our bodies with
adrenaline and cortisol. If an individual doesn’t have an
opportunity to discharge these hormones, or have ample time to
regulate them (which can take up to 18 hours of rest and sleep),
they begin to create a very disturbing physiological and
neurological response.
Physiologically, these hormones increase an individual’s
predisposition to cardiac arrest, type II diabetes, immune
dysfunction, inflammation, cognitive impairment, Parkinson’s,
Alzheimer’s, depression and even suicide.
The human body was never meant to sustain excessive daily levels
of these hormones. Chronic exposure to these factors
neurologically increases the thickness of the cortex in the
limbic brain, making the fight-or-flight response stronger and
more apt to engage, even erroneously. This also shrinks the
prefrontal cortex, reducing one’s ability to feel empathy, see
the big picture, creatively problem solve, see things from a
different perspective, be creative, have insights and/or
experience joy.
With most of our law-enforcement agencies’ money
going towards tactical trainings, there’s little time and
resources left to address the debilitating stress cycles
inherent in the industry.
Most agencies have an Employee Assistance Program, where a
psychologist offers confidential treatments. However, I’ve
trained over 600 officers – very few of whom have been willing
to even talk to a psychologist. Typically, this is viewed as a
weakness and job risk to admit vulnerability and the need for
help. Many cops would rather not talk about it at all, than risk
being labeled as weak. So, this service often goes unused, even
as suicide rates increase.
We have an industry that breeds a masculine façade who then has
to deal with the civilian expectation that they should perform
above and beyond any ethical reproach. Within 10 years on the
force, a typical cop can go from being an idealistic person who
believes they can make a positive change in the world, to a
cynical, jaded, depressed and broken individual who’s encouraged
to hide their emotions, bury their fears, and slowly recede into
a shell.
PTSD is a debilitating disease if untreated. Individuals under
the best care often struggle with this disease. Cops perceive
they don’t have the luxury to seek treatment.
So many of our nation’s law-enforcement agents are
walking time-bombs, which are made worse by the constant
pressure to meet our highest expectations.
Mindfulness and meditation has the potential to change all of
that. The meditation techniques I teach to law-enforcement
agencies seem to be a way around this dilemma. They give
officers preventative techniques to help mitigate some of their
debilitating cycles. Cops who devote regular and consistent time
to practicing the techniques are able to identify patterns
attributed to their limbic brain, and renegotiate their
responses. The result of overriding the limbic brain is nothing
short of miraculous.
Black-and-white thinking opens up to new possibilities as the
prefrontal cortex becomes active. States of happiness and joy
become accessible. Individuals begin to think outside of the box
to find new solutions or approaches to life. As the prefrontal
cortex strengthens, individuals develop the ability to override
biases and prejudices, which are typically hardwired in to the
limbic system. Empathy takes center stage once the limbic brain
is quieted. What could the industry culture be like if all
agencies offered these types of preventative well-being services
to their officers? Would we see a type of officer emerge?
I have seen cops break down in tears as they’ve told me that
nothing is what they hoped it would be. I have heard personal
tales of drunken cops with loaded guns, waiting with their
fingers on the trigger for their spouse to get home. I have
witnessed high levels of trauma turn good-hearted men and women
into callous and confused masochists. I have watched cops
alienate themselves from their families, friends and society as
they slip into downward spirals of depression. In those moments,
the very question of whether they’re good or bad seems
preposterous.
What would I be like if that were my reality? What would you be
like if that were your reality?
There are some that sail through their careers unscathed,
content, fulfilled and heroic. I know some of them and they are
a rare breed. But for the most part, they are individuals lost
in a thick mire of our society’s darkest forces.
My stomach turns when I hear about:
• Stories of excessive police abuse against innocent people…
• Stories of civilians wrongfully treated…
• Tales of the deviants a cop must deal with when investigating
child homicides…
• Stories of graphic suicides…
• Stories of teenagers wrongfully killed…
And because of this, I no longer can separate cop from civilian,
or “us” from “them.”
Albert Einstein said that it was our sacred human
responsibility to help where we can. I think he meant that for
all of us.
As I continue my life’s work to teach neuro-sculpting and meditation to those in need, I cannot draw a
line in the sand and stand on one side of it. I often find
myself walking a tightrope between worlds that outwardly seem
conflicting. I am committed to looking at individuals as
mirrors, regardless of their ideologies, political beliefs,
economic status or religious affiliation. When I take this view,
then I can’t answer the question of whether cops are good or
bad. I can only notice individuals in pain who need help.
How different would our lives be if we could truly put ourselves
in one another’s shoes?
I leave you with my mantra: We are the storytellers and this
life is our story.
________________________________________________________________________________________________________________
Lisa Wimberger holds a
Masters Degree in Education from the University of Stonybrook,
NY. She is a certified MBTI consultant and a private healing and
psychic practitioner, teaching clients who suffer from stress
disorders. Lisa studied Ascension training for four years with
Ishaya monks. She completed two and a half years of psychic
awareness training at ICI, applying the tools of the Berkeley
Psychic Institute. She spent a year and a half in post-graduate
studies and is certified in the Foundations of Neuro Leadership.
Feel free to tell her your story and visit her website to learn
more about how these techniques are targeted to First
Responders.
Lisa is the Founder of the Trance Personnel Consulting Group.
Lisa has created and facilitated leadership trainings for
executive teams in Fortune 500 companies, the Colorado State
Department and worked individually with international
management. She has created and facilitated Emotional Survival
programs for Colorado Law Enforcement Agencies and peer counsel
groups. Over the last two years, 500 police officers have
attended her workshops. Lisa writes for CopsAlive and partners
with the Law Enforcement Survival Institute. Additionally,
Lisa’s services are sought on a national level by individuals in
law enforcement looking to find a new way to navigate through
their stress patterns. Lisa is a member of the National Center
for Crisis Management and ILEETA (International Law Enforcement
Educators and Trainers Association
Miranda Warning Needed During "Non Custodial" Interviews?
United States v.
Cavazos
February 2012
by
Brian S. Batterton, Attorney
Reprinted from
WWW.PATC.COM
It is well
known that police must provide suspects with Miranda warnings
for custodial questioning. Further, before questioning, the suspect
must waive his Fifth Amendment rights after the warnings are
given. However, sometimes, the specific circumstances of an
interview or interrogation provide some ambiguity as to whether an
interview is “custodial” or “non-custodial” for the purposes of
Miranda. Recently, the Fifth Circuit Court of Appeals decided
United States v. Cavazos [i] which offers police some guidance
regarding whether or not an interview will be considered
“non-custodial” when conducted in the suspect’s residence. The facts
of Cavazos are as follows:
On September 1,
2010, between 5:30 a.m. and 6:00 a.m., Cavazos woke to banging on
his door and the shining of flashlights through his window. U.S.
Immigration and Custom Enforcement ("ICE") Agents, assisted by U.S.
Marshals, Texas Department of Public Safety personnel, and Crane
Sheriff's Department personnel, were executing a search warrant on
Cavazos's home. The warrant was issued on the belief that Cavazos
had been texting sexually explicit material to a minor female. After
Cavazos's wife answered the door, approximately fourteen law
enforcement personnel entered Cavazos's residence.
Immediately
upon entering, government agents ran into Cavazos's bedroom,
identified him, and handcuffed him as he was stepping out of bed.
Agents then let Cavazos put on pants before taking him to his
kitchen. Cavazos's wife and children were taken to the living room.
Cavazos remained handcuffed in the kitchen, away from his family,
while the entry team cleared and secured the home. ICE Agents Le
Andrew Mitchell and Eric Tarango then uncuffed Cavazos and sat with
him in the kitchen for approximately five minutes while other
officers secured the home.
Once the house
was secured, agent Tarango asked Cavazos if there was a private room
in which they could speak. Cavazos suggested his son's bedroom. In
the bedroom, Cavazos sat on the bed while the two agents sat in two
chairs facing him. The agents asked Cavazos if he wanted the door
open, but Cavazos said to keep the door closed. Agents Mitchell and
Tarango informed Cavazos that this was a "non-custodial interview,"
that he was free to get something to eat or drink during it, and
that he was free to use the bathroom. The agents then began
questioning Cavazos without reading him his Miranda rights.
About five
minutes into the initial interrogation, Cavazos asked to use the
restroom. Agents then searched the restroom for sharp objects and
inculpatory evidence. Once cleared, they allowed Cavazos to use the
bathroom, but one agent remained outside the door, which was left
slightly open so the agent could observe Cavazos. Once finished,
Cavazos, followed by an agent, went to the kitchen to wash his
hands, as the restroom's sink was broken. Cavazos then returned to
his son's bedroom, and the interrogation resumed.
After Cavazos
returned to the bedroom, officers interrupted the interrogation
several times to obtain clothing to dress Cavazos's children. The
officer would ask Cavazos for an article of clothing, which Cavazos
would retrieve from the drawers and hand to the officer. Agents
Mitchell and Tarango would then continue the questioning.
At some point
during the interrogation, Cavazos asked to speak with his brother,
who was his supervisor at work. The agents brought Cavazos a phone
and allowed him to make the call, instructing Cavazos to hold the
phone so that the agents could hear the conversation. Cavazos told
his brother that he would be late for work.
Finally, the
agents asked Cavazos if he had been "sexting" the victim. Cavazos
allegedly admitted that he had, and also described communications
with other minor females. After the interrogation was over, Cavazos
agreed to write a statement for the agents in his kitchen. While
Cavazos began writing the statement, an agent stood in the doorway
and watched him.
Cavazos wrote
his statement for approximately five minutes before agents Mitchell
and Tarango interrupted him. At that point the agents formally
arrested Cavazos and read him his Miranda rights. From
beginning to end, the interrogation of Cavazos lasted for more than
one hour, and the agents' conduct was always amiable and
non-threatening. Subsequently, Cavazos was indicted for coercion and
enticement of a child, and for transferring obscene material to a
minor. [ii]
Cavazos filed a
motion to suppress the statements that he made prior to receiving
his Miranda warnings. The district court granted the motion
to suppress and the government appealed.
The Fifth
Circuit first summarized the law on this topic as follows:
"Miranda
warnings must be administered prior to 'custodial interrogation.'"
United States v. Bengivenga, 845 F.2d 593, 595 (5th Cir. 1988)
(quoting Miranda v. Arizona, 384 U.S. 436, 479, 86 S. Ct. 1602, 16
L. Ed. 2d 694 (1966)). "A suspect is . . . 'in custody' for
Miranda purposes when placed under formal arrest or when a
reasonable person in the suspect's position would have understood
the situation to constitute a restraint on freedom of movement of
the degree which the law associates with formal arrest." Id.
at 596. "Two discrete inquires are essential to the
determination: first, what were the circumstances surrounding the
interrogation; and second, given those circumstances, would a
reasonable person have felt he or she was at liberty to terminate
the interrogation and leave." J. D. B. v. North Carolina, 131
S. Ct. 2394, 2402, 180 L. Ed. 2d 310 (2011). "The reasonable
person through whom we view the situation must be neutral to the
environment and to the purposes of the investigation—that is,
neither guilty of criminal conduct and thus overly apprehensive nor
insensitive to the seriousness of the circumstances."
Bengivenga, 845 F.2d at 596. [iii] [emphasis added]
Thus, the
determination of whether a person is “in-custody” for Miranda
purposes relies on the totality of the circumstance and does not
consider the subjective (personal) views of the officer or the
person being questioned. [iv]
The Fifth
Circuit then looked at the relevant facts in this case. The incident
began with Cavazos being awakened by officers banging at his door.
His wife let the officers in and they handcuffed Cavazos while about
fourteen officers searched his home. He was then un-handcuffed and
told that his interview was “non-custodial.” He was then separated
from his family and questioned by law enforcement agents for about
an hour in his home. During the questioning, he was then told that
he was free to use the bathroom or get a snack but he was closely
followed and monitored by officers as he did so. He was also told
that he could telephone his brother but the agent made him hold his
phone such that they could monitor his call.
The government
argued several reasons that the court should hold that the
questioning was “non-custodial” and no Miranda was required.
First, they argued that the questioning took place in his home. The
court stated that while this may often weigh in favor of an
interview being non-custodial, in this case, officers made
non-consensual entry into Cavazos home, handcuffed him, searched his
home, and then closely monitored his movement inside his home. The
court also considered case law from the First and Ninth Circuits
that have held that in-home interviews under similar circumstances
were held to be “custodial” for the purposes of Miranda. [v]
Second, the
government argued that Cavazos was allowed to speak with his brother
on the phone. However, the court noted that the conversation was
monitored by the police which would indicate to a reasonable person
that the police had sufficient control over a person to restrict
their privacy. Third, the court considered the fact that the police
immediately handcuffed Cavazos when they encountered him and
searched his home. They found that this would indicate that the
police had control or dominion over Cavazos in spite of the fact
that the police later un-handcuffed him. Lastly, the government
asserted that the fact that agents told Cavazos that the interview
was “non-custodial” should negate the need for Miranda. To
this, the court stated:
Such
statements, while clearly relevant to a Miranda analysis, are not a
"talismanic factor." They must be analyzed for their effect on a
reasonable person's perception, and weighed against opposing facts.
Here, several facts act to weaken the agents' statement such that it
does not tip the scales of the analysis. First, to a reasonable lay
person, the statement that an interview is "non-custodial" is not
the equivalent of an assurance that he could "terminate the
interrogation and leave." Second, uttered in Cavazos's home, the
statement would not have the same comforting effect as if the agents
had offered to "leave at any time upon request." This is not to say
that a statement by police to a defendant that an interrogation is
"non-custodial" does not inform our decision as to the necessity of
a Miranda warning when an interrogation is conducted inside the
home. Instead, we recognize the "totality of circumstances" Miranda
commands, and we note that statements made in different
circumstances will have different meanings and differently affect
the coercive element against which Miranda seeks to protect. [vi]
[internal citations omitted]
The court then
held that, while no single factor in this case is in itself
determinative, based upon the totality of the circumstances, a
reasonable person in Cavazos position would have believed that he or
she was not at liberty to terminate the interview and leave. As
such, the interview was custodial and Miranda was required.
The Fifth
Circuit therefore affirmed the decision of the district court
granting the motion to suppress.
_____________________
Note:
Court holdings can vary significantly
between jurisdictions. As such, it is advisable to seek the advice
of a local prosecutor or legal adviser regarding questions on
specific cases. This article is not intended to constitute legal
advice on a specific case.
CITATIONS:
[i] No.
11-50094, 2012 U.S. App. LEXIS 1103 (5th Circuit Decided January 19,
2012)
[ii] Id. at 1-5
[iii] Id. at 6
[iv] Id. at 7
[v] Id. at 9
(See United States v. Craighead, 539 F.3d 1073, 1085 (9th Cir. 2008)
(suppressing statements made during in-home interrogation where home
was "a police-dominated atmosphere"); United States v. Mittel-Carey,
493 F.3d 36, 40 (1st Cir. 2007) (finding in-home interrogation
custodial where, inter alia, search conducted early in the morning
by eight officers, and officers exercised physical control over
defendant)
[vi] Id. at
11-12
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