Criminal suspects under arrest – for suspicion of a sex crime or anything else – are entitled to certain rights while in custody, specifically when they are being questioned by law enforcement.
However, those rights are only triggered once someone is considered “in custody.” Typically, the courts have regarded “in custody” to mean under arrest, though the totality of the circumstances – namely, whether the suspect felt free to leave or end the interview – are taken into account.
If a person is deemed “in custody” and those rights were not observed, incriminating statements and evidence obtained a result could be suppressed.
These elements are often determined after the fact in court, though. Attempting to differentiate the legalities while one is being pressed for information from armed police is not an easy thing to do in the moment. That’s why our Birmingham felony defense lawyers have a simple rule for clients during any police encounter: Don’t speak without your lawyer present.
There is never a circumstance under which you are required to give incriminating evidence to police. That is true whether you are under arrest, “in custody” or not. Even if you are not free to leave, you are free to decline to speak with police until you’ve first consulted with an attorney.
Those who fail to adhere to this simple rule almost always end up giving investigators evidence to be used against them. While there may be some scenarios under which an experienced criminal defense lawyer can work to have those statements suppressed, it’s better if they were never made in the first place.
This was illustrated recently in the case of U.S. v. Williams, heard on appeal by the U.S. Court of Appeals for the Eighth Circuit.
Here, seven armed federal agents with Immigration and Customs Enforcement, acting on information the defendant has possibly purchased child pornography, went to the defendant’s home to execute a search warrant. He was not home, and the agents used a battering ram to gain entry and conduct the search.
While the search was ongoing, the defendant arrived home. An agent asked whether he would be willing to speak with him and answer some questions. The agent told the defendant he was not under arrest, and the decision to speak was voluntary. The defendant agreed to speak.
For 45 minutes, the two spoke on the couch. The investigator reportedly during this time never raised his voice, made threats, promises or deceived the defendant. The suspect was not restrained, and was allowed to leave to use the restroom or get a glass of water. He was not arrested at the end of the interview.
During that interview, the defendant confessed to accessing child pornography from his home computer and work laptop, which was in his vehicle parked outside. He signed a form granting officers permission to search his car and take the laptop.
He was later arrested on federal charges relating to child pornography.
The district court, however, agreed to suppress the man’s statement to investigators, arguing that even though he was not technically under arrest or “in custody” at the time of the questioning, the court reasoned he may not have felt free to end the interview and leave. The court relied on the fact that there were numerous armed agents in his home, which had been forcibly entered. The court found the interview “inherently coercive.”
This was a victory for the defense, but it was short-lived. Prosecutors appealed the ruling, and the federal appellate court reversed. Several considerations led the court to conclude the suspect was not “in custody.” The first was the officer informed the suspect the interview was voluntary and he could terminate it at will. Second, the officer did not raise his voice or threaten the suspect during the interview. Additionally, the suspect was not physically restrained.
Therefore, prosecutors will be allowed to use the defendant’s statements against him in a case where he is facing many years behind bars.
U.S. v. Watkins – When Family Members Offer Consent to Search of Your Property
Just because you refuse to allow police to search your property doesn’t mean they won’t do it. In some cases, they may go to the trouble of securing and executing a search warrant to gain access. However, if deficiencies are later found in their legal argument, prosecutors will not be able to rely on the fact that the search was “voluntary” if you clearly and firmly refuse to allow it.
An exception is if a joint owner/resident of the property grants permission for law enforcement to conduct the search.
Our Birmingham sex crime defense lawyers note this was the case recently in U.S. v. Watkins. Although there was significant doubt about whether police had the authority to search the property of a child pornography suspect without a warrant on the basis of the suspect’s consent, the permission granted by his wife was deemed sufficient.
According to court records, the case began when the body of a 7-year-old girl, with whom the defendant was acquainted, was found in a landfill. The defendant was questioned by the officer, and admitted to having downloaded and viewed child pornography.
A detective then asked the defendant if he could search the computer for information that might be relevant to the murder investigation. The officer reportedly assured the suspect he was not interested in searching for the man’s child pornography, but rather for clues regarding the girl’s homicide, based on websites she had visited while using computers at his home. Based on this, the man agreed to allow the search. Later, his wife independently agreed to a general search of all the home computers.
The child pornography found on the man’s computer was used to charge him with the federal crime of receipt of child pornography. The defendant moved to suppress the computer evidence on the basis that the officer’s scope of the search should have been limited to evidence relevant to the homicide investigation.
However, the district court denied the motion to suppress based on the wife’s general search consent. Because the defendant had not made an objection to his wife’s consent of an unlimited search, the district court found the search was valid.
The defendant moved for reconsideration on the issue, but was denied, convicted and sentenced to five years in prison. (He was ruled out as a suspect in the murder.) He appealed to the U.S. Court of Appeals for the Eleventh Circuit.
The defendant argued his wife was relying on information he communicated to her via phone – prior to her granting consent – that the detectives were only interested in information relative to the homicide. That was the only reason she granted general consent.
However, the appellate court considered the fact that the wife signed a general consent form while seated at the table with her husband and the detective, and at no point did the husband raise an objection.
This is precisely the kind of situation where consultation with a criminal defense lawyer is critical. Of course, the defendant wanted to do the right thing in aiding police with their investigation into a child homicide. It was also important that he be ruled out as a suspect in that case. However, he needed protection as well. Defendants should never rely on assurances or promises from detectives, who are permitted to be deceitful and not fully forthcoming in these encounters.
It’s possible had the defendant sought legal counsel, a formal agreement to limit the scope of the search could have been reached, and the defendant could have aided the investigation, while still protecting his own interests.