Ritter, John A.

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Criminal Law--Confessions--Custodial Interrogation [\u3ci\u3eUnited States v. Davis\u3c/i\u3e, 259 F. Supp. 496 (D. Mass. 1966)]

Case Western Reserve University School of Law

Case Western Reserve Law ReviewVolume 18 | Issue 51967Criminal Law--Confessions--CustodialInterrogation [United States v. Davis, 259 F. Supp.496 (D. Mass. 1966)]John A. RitterFollow this and additional works at: https://scholarlycommons.law.case.edu/caselrevPart of the Law CommonsThis Recent Decisions is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law ScholarlyCommons. It has been accepted for inclusion in Case Western Reserve Law Review by an authorized administrator of Case Western Reserve UniversitySchool of Law Scholarly Commons.Recommended CitationJohn A. Ritter, Criminal Law--Confessions--Custodial Interrogation [United States v. Davis, 259 F. Supp. 496 (D. Mass. 1966)], 18 W. Res.L. Rev. 1777 (1967)Available at: https://scholarlycommons.law.case.edu/caselrev/vol18/iss5/19CUSTODIAL INTERROGATIONCRIMINAL LAW - CONFESSIONS -CUSTODIAL INTERROGATIONUnited States v. Davis, 259 F. Supp. 496(D. Mass. 1966).A plain reading of Miranda v. Arizona1 demands that its hold-ing be applied beyond the precise facts found in the case and usedto delineate a procedural code which will guide police and courtsin the use of a defendant's pre-trial admissions against interest2 Ifthis code is not to be emasculated as were the ones announced inEscobedo v. Illinois3 and McNabb v. United States,4 then it mustnot be limited to the precise facts of police-station custody presentedin Miranda and the three companion cases which were reversed forlack of warnings.5 Applying an exclusionary rule based upon thefifth and sixth amendments, the United States Supreme Court said:[Tihe prosecution may not use statements, whether exculpa-tory or inculpatory, stemming from custodial interrogation of thedefendant unless it demonstrates the use of procedural safeguardseffective to secure the privilege against self-incrimination. Bycustodial interrogation, we mean questioning initiated by law en-forcement officers after a person has been taken into custody orotherwise deprived of his freedom of action in a significant way.'By this language the Court obviously did not mean to limit"custodial interrogation!' to interrogation-room questioning but to1384 U.S. 436 (1966).2"Admissions against interese' is the preferred term because the court in Mirandastresses that no distinction shall be made between inculpatory and exculpatory state-ments. Id. at 477.a 378 U.S. 478 (1964). The case holds that when the interrogation process be-comes accusatory and its purpose is to elicit a confession, the accused must be permittedto consult with his lawyer. For restrictive interpretations, see United States v. Cone,354 F.2d 119 (2d Cir. 1965); People v. Hartgraves, 31 IMI. 2d 375, 202 N.E.2d 33,cert. denied, 380 U.S. 961 (1964); State v. Fox, 131 N.W.2d 684 (Iowa 1964); Statev. Howard, 383 S.W.2d 701 (Mo. 1964); People v. Gunner, 15 N.Y.2d 852, 205 N.E.-2d 852, 257 N.Y.S.2d 924 (1965); State v. Pucket, 201 N.E.2d 86 (C.P. Ohio 1964).See generally Herman, The Supreme Court and Restrictions on Police Interrogations,25 Oo ST. L.J. 449, 494 (1964). See also Sutherland, Crime and Confession, 79HARV. L. R1Ev. 21, 31 (1965).4 318 U.S. 332 (1943). For restrictive interpretations, see cases collected in Hogan& Smee, The McNabb-Mallory Rule: Its Rise, Rationale and Rescue, 47 GEo. LJ. 1,6 (1958). See, e.g., Metoyer v. United States, 250 F.2d 30 (DC. Cir. 1957); UnitedStates v. Haupt, 136 F.2d 661, 671 (7th Cir. 1943).5 Miranda v. Arizona and the three cases decided with it, Vignera v. New York,Westover v. United States, and California v. Stewart, all dealt with interrogation at thepolice station.6 384 U.S. at 444. 'This is what we meant in Escobedo when we spoke of an in-vestigation which had focused on an accused." Id. at 444 n.4.19671 1777WESTERN RESERVE LAW REVIEWimpose constitutional limitations upon all questioning of personswho have been placed in a compelling atmosphere by being de-prived of their freedom of action in any significant way7The recent decision in United States v. Davis' ignored Miran-da's broad application and limited its definition of custodial inter-rogation. The court upheld the admissibility of incriminating state-ments made by the defendant while he was being questioned bycustoms officers even though he had not been warned of his rightsto silence and counsel.'Defendant Davis was a citizen and a crew member on a UnitedStates ship re-entering the country. Customs officers boarded theship to make a routine search for contraband1 ° and found two en-velopes containing marijuana in an overhead vent. Later the cus-toms officers searched the defendant's cabin in his presence andfound a marijuana cigarette in his locker. While the officers con-tinued their search, the defendant asked permission to go to thebathroom. He was first searched, then allowed to go, but only un-der escort by a customs officer. Further search, with the defendantpresent, revealed a package of marijuana cigarettes. The officersquestioned the defendant as to where he had purchased the cigar-ettes and were told that he had bought them in Mexico. The de-tention and questioning lasted approximately an hour and a quarter,after which the defendant was told that he was free to move aboutthe ship but not to leave." The customs officers left the ship, pro-cured an arrest warrant, and returned, going straight to the defend-ant's cabin. Without showing their arrest warrant, they asked himif he had paid tax on the marijuana. He replied that he had notand was told that he was under arrest for violation of the narcotics7 Cf. Jones v. Cunningham, 371 U.S. 236 (1963), where a paroled prisoner's lib-erty was held to have been sufficiently restrained to find him "in custody" within themeaning of the federal habeas corpus statute, even though he was free to come and goas he pleased or change residences, subject to his parole officer's consent.8 259 F. Supp. 496 (D. Mass. 1966).9 The cautionary warnings required by Miranda are: "He must be warned prior toquestioning that he has the right to remain silent, that anything he says can be usedagainst him in a court of law, that he has the right to the presence of an attorney, andthat if he cannot afford an attorney one will be appointed for him prior to any ques-tioning." 384 U.S. at 479.10 The search was authorized by 14 Stat. 178 (1866), 19 U.S.C. § 482 (1964); 46Stat. 747 (1930), as amended, 19 U.S.C. § 1581 (1964); 46 Stat 748 (1930), 19U.S.C. § 1582 (1964).11 For the Supreme Court's interpretation of a similar fact situation, see Jones v.Cunningham, 371 U.S. 236 (1963). For a discussion of the case see note 7 supra.1778 [Vol. 18: 1777CUSTODIAL INTERROGATIONlaws of the United States. 2 At this point, after having obtainedall necessary admissions, the officers told the defendant that any-thing he said could be used against him and that he had the rightto retain counsel. 3The court refused to hold that the delay in advising the de-fendant of his rights to silence and counsel required the sustainingof a motion to suppress the admissions against interest. Althoughthe court conceded that Davis had been "under detention' duringhis questioning, 4 it refused to find that he had been "deprived ofhis action in a significant way" so as to call for the application ofthe exclusionary rule announced in Miranda." This reasoning con-fines Miranda to its precise fact situation despite the SupremeCourt's broad statement that "There can be no doubt that the fifthamendment serves... to protect persons in all settings in whichtheir freedom of action is curtailed from being compelled to incrim-inate themselves."'" It seems obvious that a compelling atmos-phere is present whether the setting is in a police interrogationroom or on a ship. It is not the physical location that is importantbut rather the detention. Therefore, it is submitted that "custodialinterrogation" was improperly limited by the court in United Statesv. Davis.There are two approaches that the courts might take in the fu-ture to determine the existence of custodial interrogation - theymight employ either an objective or a subjective standard.' Theobjective test would look to the police officer's testimony relatingto his intention to make an arrest, plus the circumstances surround-ing the interrogation. This would indicate whether a suspect insuch a setting would feel that he was in custody and therefore com-pelled to answer questions. The subjective test would look furtherand consider the individual suspect's personality, that is, whethera person having his background and character traits would feel hewas in custody and compelled by the setting to answer questions.The New York courts have applied the objective test to deter-12 68A Stat. 563 (1954), 26 U.S.C. § 4751 (1964); 68A Stat. 564 (1954), 26U.S.C. § 4753 (1964); 68A Stat. 565 (1954), 26 U.S.C. § 4755 (1964).Is 259 E. Supp. at 497.4 Ibd.15Id. at 498.10 384 U.S. at 467. (Emphasis added.)17 This wziter's denotation of "subjective' and "objective" should not be confusedwith those of Judge Sobel in People v. Allen, 50 Misc. 2d 897, 905, 272 N.Y.S.2d 249,256-57 (Sup. Ct .1966).19671 1779WESTERN RESERVE LAW REVIEWmine the existence of custodial interrogation and have looked towhether the suspect was free to go during questioning by police.'8If he was not, then the four-fold warning of Miranda must havebeen given if the suspect's statements are to be admissible. In Peo-ple v. Reason 9 the court held that the questioning of two burglarysuspects on the street was custodial interrogation when three offi-cers formed a circle around the suspects, and one officer testifiedthat he would have restrained the suspects had they tried to moveaway.2" In People v. Allen,2 statements given to a police officerin the suspect's home without prior warnings were held inadmis-sible on the basis of the police officer's testimony that he went tothe suspect's home to apprehend him and that the suspect wouldnot have been free to leave voluntarily.22 The court in Allen in-terpreted Miranda to require warnings before questioning a suspect"so long as the defendant was not at such time free to go."2Inclusion of a subjective test seems necessary to meet many sit-uations. For example, the police may not intend to arrest a manwhen they question him, so that their testimony will not show anintent to detain; nevertheless, the suspect may be subjectively awareof a compelling atmosphere. 4 Thus, the individual suspect's back-ground must be considered to determine his susceptibility to thepressure of police presence. This is a necessary part of applyingMiranda, since the Supreme Court has reaffirmed the subjectivebasis of the fifth amendment privilege in Davis v. North Carolina,25a post-Miranda case. Davis tends to show that the fifth amend-ment privilege is personal to the defendant and is not groundedsolely in deterring offensive police practices.2" This necessitateslooking to the individual defendant to determine whether the lack18 See id. at 900, 272 N.Y.S.2d at 252.19 276 N.Y.S.2d 196 (Sup. Ct. 1966).20 Id. at 199.2150 Misc. 2d 897, 272 N.Y.S.2d 249 (Sup. Ct. 1966).22Id. at 899-900, 272 N.Y.S.2d at 251-52.28 Id. at 900, 272 N.Y.S.2d at 252.24 See Judge Sobel, commenting in ibid., that this will be the more difficult and re-curring situation. Cf. Catalanotte v. United States, 208 F.2d 264 (6th Cir. 1953), wherestatements made by the defendant to police permitting them to search his house wereheld not to constitute consent because the defendant had probable cause to consider him-self under duress or arrest at the time he made the statements.25 384 U.S. 737 (1966); see Haynes v. Washington, 373 U.S. 503 (1963); Rogersv. Richmond, 365 U.S. 534 (1961).26 See Johnson v. New Jersey, 384 U.S. 719 (1966). See also Linkletter v. Walker,381 U.S. 618 (1965).1780 [Vol. 18: 1777CUSTODIAL INTERROGATIONof warnings would tend to make him subjectively aware of a com-pelling atmosphere."In United States v. Davis, the court could have found custodialinterrogation from the objective factor of an hour and a quarter ofquestioning accompanied by detention during which the suspect wasnot even free to go to the bathroom without a police escort. Thedefendant's subjective awareness of compelling circumstances wouldrequire an inquiry which was not shown in the record as to defend-ant's individual traits.The Davis court's strict construction of custodial interrogationcan be understood after reading its cursory consideration of pre-Miranda interrogation rules. In a brief paragraph the court statesthat prior to Miranda no federal or common law rule required ex-clusion of a suspect's statement taken without warnings2 8 Thecourt cited two early cases to support its holding: Powers v. UnitedStates 9 and Wilson v. United States."0  Thus, the court ignoredHaynes v. Washington8' which made the absence of warnings afactor to consider,"2 and turned its back on the controversy in thecourts over the meaning of Escobedo.8 It rejected what one dis-tinguished legal writer had said was the narrowest construction pos-sible of Escobedo v. Illinois: "At the very least, Escobedo ... over-rules, sub silentio, Powers v. United States and Wilson v. UnitedStates." 4  This slight examination of the pre-Miranda area of po-lice interrogations further weakens the Davis court's analysis ofMiranda.One line of reasoning which the court did not follow, but whichmight be tried in future cases involving questioning by customs offi-cers, is to analogize custodial interrogation to "border searches."2 7 See Davis v. North Carolina, 384 U.S. 737 (1966); Culombe v. Connecticut,367 U.S. 568 (1961); cf. Betts v. Brady, 316 U.S. 455 (1942).28259 F. Supp. at 498.29 223 U.S. 303 (1912).80 162 U.S. 613 (1896).81373 U.S. 503 (1963).821d. at 516-17.8 8 Compare People v. Dorado, 62 Cal. 2d 338, 398 P.2d 361, 42 Cal. Rptr. 169(1965), with People v. Gunner, 15 N.Y.2d 226, 205 N.Y2d 852, 257 N.Y.S.2d 924(1965). See also People v. Hartgraves, 31 I1. 2d 375, 202 N.X.2d 33, cort. denied,380 U.S. 961 (1964); State v. Fox, 131 N.W.2d 684 (Iowa 1964); State v. Howard,383 S.W.2d 701 (Mo. 1964).84 Herman, supra note 3, at 475 n.154.85 See generally 18 W. REs. L REV. 1007 (1967). Border searches may be madeupon mere suspicion according to statute. 14 Stat. 178 (1866), 19 U.S.C. § 482(1964).19671WESTERN RESERVE LAW REVIEWA long line of cases has established a rule allowing customs offi-cers far wider discretion in search and seizure procedures than isallowed any other state or federal police agency." This has neverbeen extended to questioning procedures, but it could easily be at-tempted in a case such as Davis. The reason, however, for elasti-cizing the fourth amendment during border searches is absent incases concerning the fifth amendment. In the search and seizureinstance, the courts reason that no right of privacy exists as to prop-erty on which no duty has been paid, and therefore the governmenthas a primary right to possession of such property." However, thegovernment cannot be said to have any primary right to a suspect'sadmissions of guilt. Therefore, it would seem that customs officerscan have no greater discretion than other police to withhold Mr-anda-type warnings.A conviction based on Davis' pre-arrest confession would havebeen difficult to sustain, whatever reason the court had chosen.Further case law, it is submitted, will not support the court's hold-ing of no custodial interrogation. The United States Attorney's de-cision not to introduce the defendant's statements at trial"8 is thuswelcomed as a realization that the court's interpretation of Mr-anda was incorrect 9 It is hoped that other courts will not be mis-led by the Davis decision.JOHN A. RITTER36 Carroll v. United States, 267 U.S. 132 (1925); Blefare v. United States, 362 F.2d870 (9th Cir. 1966); Lane v. United States, 321 F.2d 573 (5th Cit. 1963), cert. denied,381 U.S. 920 (1965); Blackford v. United States, 247 F.2d 745 (9th Cir.), cert. denied,356 U.S. 914 (1957).87 Boyd v. United States, 116 U.S. 616, 623-24 (1886); Corngold v. United States,367 R2d 1, 15 (9th Cir. 1966). See also One 1958 Plymouth Sedan v. Pennsylvania,380 U.S. 693, 696 (1965).88 United States v. Davis, Criminal No. 66-68, W.D. Mass., Dec. 22, 1966.89 Cf. State v. Silvacarvalho, 180 Neb. 755, 145 N.W.2d 447 (1966), holdingthat admissions obtained in violation of Miranda would not vitiate a conviction whenthe statements were not introduced into evidence.1782 [VoL 18: 1777

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Criminal Law--Confessions--Custodial Interrogation [\u3ci\u3eUnited States v. Davis\u3c/i\u3e, 259 F. Supp. 496 (D. Mass. 1966)]

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