Tuesday, October 02, 2007

Police Failed To Scrupulously Honor Defendant's Fifth Amendment Right/Defendant's Silence Inadmissible As Adoptive Admission

In United States v. Lafferty, No. 06-1901 (3d Cir. September 28, 2007), the Third Circuit reversed the district court’s order denying Amy Lafferty’s suppression motion, which challenged statements that she and an alleged confederate made during a custodial interrogation.

Facts: An ATF agent contacted Lafferty and David Mitchell, her boyfriend, to arrange an interview about a burglary. Lafferty and Mitchell agreed to go to the police station. Upon arrival, the police placed Lafferty and Mitchell in different interrogation rooms for questioning. In Lafferty’s room, the ATF agent produced an ATF Waiver of Right To Remain Silent and of Right To Advice of Counsel form, and Lafferty signed both sections of the form. The agent questioned Lafferty for four hours, but she did not respond to most of the questions. When she did respond, she denied any involvement. Eventually, Lafferty asked to go home, but her interrogation continued for fifteen minutes. She agreed, however, to return within two days. Five days later, police officers arrested Lafferty on an outstanding, unrelated warrant and took Mitchell into custody.

At the police station, Lafferty and Mitchell were again placed in different interrogation rooms. Lafferty again signed both sections of the ATF form, denied involvement in the burglary and stated, "[I]f you’re going to charge me, charge me. I’m not going to sit here for four to five hours like last time." The interrogation ceased, and police officers put Lafferty into another room for two hours while Mitchell’s interrogation continued. Mitchell’s interrogation ended when he asked to speak to an attorney. The police transported Lafferty and Mitchell to the courthouse for arraignment. Mitchell, however, told the officers that they would tell the police about the burglary if they took him and Lafferty back to the police station and let them talk privately. The troopers agreed to the arrangement. Lafferty, however, remained silent and never agreed to speak with the police.

Police officers took Lafferty and Mitchell back to the police station without being arraigned, and placed them in a small room by themselves. After fifteen minutes and three police interruptions, Mitchell told the ATF agent that they were ready to talk, but that he and Lafferty wanted to speak to police together. Before questioning, police advised Lafferty and Mitchell of their Miranda rights. Mitchell retracted his request for counsel, and was asked to sign the statement of rights section of the ATF form. Lafferty did not sign the ATF form or verbally waive her right to remain silent. During questioning, Mitchell answered most of the questions and, in doing so, incriminated himself and Lafferty. Lafferty was silent for most of the interrogation, but occasionally explained or clarified Mitchell’s answers and nodded in agreement with some of Mitchell’s answers. It was not clear, however, which of Mitchell’s statements Lafferty assented to in this manner. After the interrogation, Mitchell and Lafferty left the police station without any charges being filed.

Lafferty was indicted for violating 18 U.S.C. §§ 922(u), 924(i)(1) and (2). Lafferty filed a motion to suppress statements she made in response to agent questioning during the last interrogation, and Mitchell's statements that implicated her in the burglary. The district court granted Lafferty’s motion in part, and denied it part. The court determined that Lafferty did not speak to police from the time she invoked her right to remain silent until she responded to the ATF agents' questions during the last interrogation. The court, however, concluded that she implicitly waived her Fifth Amendment privilege against self-incrimination by participating in the last interrogation, answering, clarifying or explaining Mitchell’s statements and failing to deny Mitchell’s statements that implicated her. The court also held that Lafferty had adopted Mitchell’s statements as her own pursuant to FRE 801(d)(2)(B), but ultimately determined that admitting them would violate her right of confrontation under Crawford v. Washington, 541 U.S. 36 (2004).

The government requested reconsideration of the ruling, and the district court agreed that the government had proven by a preponderance of the evidence that Lafferty’s silence in the face of Mitchell’s incriminating statements established her intent to adopt his statements. The court, however, cautioned that the ultimate determination as to whether Lafferty made an adoptive admission must be left to a jury using a reasonable doubt standard. In making this determination, the court concluded that if the jury determined that Mitchell’s statements were adoptive admissions of Lafferty, the Sixth Amendment right to confrontation would not be violated. Lafferty subsequently entered a conditional guilty plea, and the court sentenced her to thirty-seven months imprisonment. Lafferty appealed.

Analysis: The Third Circuit first determined that the police officers failed to scrupulously honor Lafferty's privilege against self-incrimination. The court stated that Mitchell had no authority to waive Lafferty's Fifth Amendment privilege for her, and the police should not have ignored the obvious fact that the joint interrogation would likely force Lafferty to either react to Mitchell's statements or suggest her assent to those statements by remaining silent while he incriminated her in a conspiracy.

Relying on Michigan v. Mosely, 423 U.S. 96 (1975) and its progeny, the Court reasoned that Lafferty could not be placed between such a constitutional rock and Fifth Amendment hard place unless she placed herself there by a valid Miranda waiver. The court determined that no such waiver existed, and that it could not infer, under the circumstances, that Lafferty waived the right to remain silent merely because she was willing to go into the interrogation with Mitchell. The court also stated that it was not Lafferty’s decision to go into a room to speak with Mitchell privately when they returned, and she neither asked to be interrogated with him nor agreed to the procedure. The Court found that although she apparently relented to Mitchell’s request, more was required to waive a constitutional rights under these circumstances.

After applying the factors expressed in Mosely to aid the determination of whether Lafferty's rights were scrupulously honored, the Court held that the circumstances demonstrated that the police did not scrupulously honor Lafferty's Fifth Amendment right to remain silent. The Court noted that, under Miranda, the onus was not on Lafferty, who had been steadfast in maintaining her silence, to be persistent in her demand to remain silent, but rather, on law enforcement officers to scrupulously respect her demand. The officers were not justified in proceeding as if Lafferty had knowingly and voluntarily waived the right that she had previously asserted.

The Court also determined that Lafferty’s silence and failure to deny Mitchell’s statements could not be admitted as adoptive admissions. The Court stated that the district court’s reasoning would virtually eliminate the right to remain silent because a suspect’s silence in the face of incrimination would be transformed into substantive evidence of guilt. The Court stated that it is impermissible to penalize a defendant for invoking her Fifth Amendment privilege during a custodial interrogation, and the district court’s reliance on Rule 801(d)(2)(B) was misplaced. Thus, neither Miranda, nor its progeny, limit the exclusion of a defendant’s silence during a custodial interrogation to specific procedural or tactical contexts. The Court held that a court errs in allowing the government to use a criminal defendant’s silence in the face of police interrogation. The Court did not reach the Sixth Amendment issue.

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