Hairston v. United States

SCHWELB, Senior Judge,

concurring:

In Dickerson v. United States, 530 U.S. 428 , 120 S.Ct. 2326 , 147 L.Ed.2d 405 (2000), the Supreme Court, in an opinion by the late Chief Justice Rehnquist, reiterated the Court’s conclusion in Miranda that “coercion [is] inherent in custodial interrogation” and that such coercion “blurs the line between voluntary and involuntary statements, and thus heightens the risk that an individual will not be accorded his privilege under the Fifth Amendment not to be compelled to incriminate himself.” Id. at 435 , 120 S.Ct. 2326 (internal quotation marks and ellipsis omitted). This is so because “custodial police interrogation, by its very nature, isolates and pressures the individual.” Id. The remedy prescribed by the Court in Miranda for the inherent pressure of the station house was to require the police to advise the suspect in custody, before interrogation begins, of his right (inter alia) not to make a statement and of his right to counsel.

Footnote 7 to the court’s opinion in this case tells a remarkable story. Detective Irving freely acknowledged that he told officers not to advise Hairston of his rights before he (Irving) spoke to Hairston. The detective did so because, in the words of defense counsel which Irving described as correct, Irving “didn’t want to run the risk of Hairston[’s] invoking his right to remain silent or his right not to speak in the absence of counsel.” Detective Irving “wanted to get in there and talk to him without [Hairston] having his rights being read to him,” so that Irving could “get whatever information [he] could get out of him.”

It is apparent from the foregoing that Detective Irving was making a deliberate effort to insure that the protection prescribed by Miranda to counteract the coercion “inherent in custodial interrogation” — namely, the advice of rights — be withheld until he had conditioned Hairston psychologically to be ready to waive those rights. In other words, Irving contrived to maintain the pressure inherent in isolation in the station house until interrogation began. Detective Irving obviously believed, not unreasonably, that Hairston’s isolation in coercive surroundings made it more likely that he would make an incriminating statement than it would have been if Hairston had been advised of his rights immediately upon his arrest. Indeed, it was the essence of Detective Irving’s strategy to keep Hairston in ignorance of his rights for as long as he could, and to let the atmospherics incident to being isolated and in custody at the police station take their emotional toll.

This does not mean, however, that we must reverse. Notwithstanding his restraint and isolation, Hairston made no incriminating statement until after Irving had finally advised him of his rights. There is no indication that, at that point, Hairston did not understand these rights. Under these circumstances, like the court, I know of no authority for the proposition that Irving’s conduct violated rights secured by Miranda. Indeed, since Irving planned to emphasize that he wanted Hair-ston to listen rather than to talk during the period preceding the advice of rights, it is not obvious that any custodial interro *787 gation had taken place at that stage of the interview. There having been no pre-Mi- randa warning inculpatory statement, I am constrained to concur in the judgment of the court, and, except perhaps in emphasis, I agree with the court’s legal analysis.

Nevertheless, I think it worth noting that, realistically, “the coercion inherent in custodial interrogation” does not begin when the detective asks the suspect the first question. Events that precede interrogation can also be coercive. Here, Hair-ston was arrested at 10:00 p.m. He was placed in a small interrogation room and handcuffed to a chair. He had no opportunity to talk to an attorney or to any member of his family. When Detective Irving arrived between 11:30 p.m. and midnight, Hairston had been thus isolated and restrained for a least one and a half hours. By the time the detective advised Hairston of his rights, Hairston had been in this situation for almost three hours, and the interview did not end until 3:18 a.m.

Detective Irving’s handling of Hairston’s case closely resembled the process, described in the police handbooks, which was criticized by the Court in Miranda:

The officers are told by the manuals that the “principal psychological factor contributing to a successful interrogation is privacy — being alone with the person under interrogation.” The efficacy of this tactic has been explained as follows:

“If at all practicable, the interrogation should take place in the investigator’s office or at least in a room of his own choice. The subject should be deprived of every psychological advantage. In his own home he may be confident, indignant, or recalcitrant. He is more keenly aware of his rights and more reluctant to tell of his indiscretions or criminal behavior within the walls of his home. Moreover his family and other friends are nearby, their presence lending moral support. In his own office, the investigator possesses all the advantages. The atmosphere suggests the invincibility of the forces of the law.”

To highlight the isolation and unfamiliar surroundings, the manuals instruct the police to display an air of confidence in the suspect’s guilt and from outward appearance to maintain only an interest in confirming certain details.

384 U.S. at 449-50, 86 S.Ct. 1602 (emphasis in original) (footnote omitted).

Although Hairston has not shown that the rule of Miranda was violated here, Irving undoubtedly attempted to use to his advantage the intrinsic coerciveness of Hairston’s circumstances, and he succeeded in eliciting an incriminating statement from Hairston which Hairston might well not have made if Irving had not contrived to inhibit Hairston’s exercise of his Miranda rights. We have admonished the police on several previous occasions regarding the “obvious impropriety” of “the deliberate failure of the police to inform a criminal suspect promptly of his rights under Miranda.” Hill v. United States, 858 A.2d 435, 438 (D.C.2004) (citations omitted). 20 I do not believe that “promptly” should mean at “any time before questioning begins,” especially when the defendant has been restrained and isolated from family and counsel, and thus subjected to an intimidating atmosphere, for several hours. I therefore take little pleasure in sustaining the kind of police tactic reflected in this record. To me, it represents exploitation of the prospective defendant’s fear and ignorance; Miranda was *788 designed at least to alleviate such exploitation.

“The [Fifteenth] Amendment nullifies sophisticated as well as simple-minded modes of [evasion].” Lane v. Wilson, 307 U.S. 268, 275 , 59 S.Ct. 872 , 83 L.Ed. 1281 (1939). The rule of Miranda is not the equivalent of a liberating Amendment to the Constitution, but it, too, is constitutionally based. Although I find no authority for reversal here, courts should be alert to “sophisticated” nullification of the rights secured by Miranda. The present record is disquieting in this regard.

. Hill is distinguishable from this case, however, because in Hill the defendant made an inculpatory statement before he had been advised of his rights.