Case o' The Week: Are Cops Deterred if Rights Inferred? - Loucious and deviant Miranda warnings
You have the right to infer the potential meaning of additional rights, from conclusions you should draw from the rights that may or may not be explained to you.
United States v. Loucious, 2017 WL 510457 (9th Cir. Feb. 7, 2017), decision available here.
Players: Decision by Judge Gould, joined by Judges Clifton and Watford. Hard-fought appeal by D. Nev. AFPD Wendi Overmyer.
Facts: Vegas cops stopped a car for speeding. Id. at *1. The passenger, Loucious, had an outstanding arrest warrant: he was pulled out of the car and a revolver was discovered in the back seat near where he had been sitting. Id. Loucious was taken into custody.
Before he was questioned, Loucious was read Miranda warnings that omitted the right to consult an attorney before questioning. Id. at *2. Instead, the rights advised him that he had the right to speak to an attorney during questioning. Id.
The district court granted Loucious’ motion to suppress the statement, concluding that the right to consult with a lawyer before questioning “could not have been inferred from the warnings given.” Id.
The government appealed.
Issue(s): “The parties dispute whether the warnings here administered by the LVMPD conveyed to Loucious his Miranda rights based on the addition of the words ‘during questioning.’ The United States contends that the warnings were sufficient because the right to consult with an attorney prior to questioning can be inferred from the warnings given. The warnings explicitly stated that Loucious had the right to the presence of counsel during questioning and that he had the right to have counsel appointed before questioning. Loucious argues that the warnings were deficient because they did not say that Loucious could consult with an attorney before questioning so that he could decide whether to speak with officers at all.” Id. at *3.
Held: “We conclude that Miranda warnings need not follow a precise formulation, and here the warnings reasonably conveyed that Loucious had the right to consult an attorney before questioning. So we reverse the district court’s grant of the motion to suppress.” Id. at *1.
“After discussing instructive cases from our court and the Supreme Court, we conclude that the Miranda warnings administered by the LVMPD conveyed the substance of the warning that Loucious could consult with an attorney before questioning.” Id. at *3.
Of Note: Honestly, how hard is it to issue a standard Miranda card? Way back in ’85, the Ninth upheld quirky warnings from Guam that also did not expressly “convey notice of the right to consult with an attorney before questioning.” Id. at *3. The Court suggested, however, that Guam revise its form to more clearly inform defendants of their right to counsel before questioning. Id.
Judge Gould revisits that clear advice to Guam, in Loucious: “police can always be certain that Miranda has been satisfied if they simply read the defendant his rights from a prepared card . . . A verbatim reading would, in all instances, preclude claims such as Loucious’s.” Id. (quotations and citations omitted).
Note that in this case, the officer read the warnings – this wasn’t a case of a cop mis-remembering oral warnings. Miranda was decided in 1966: after 51 years and innumerable decisions, are these deficient printed warnings really just sloppy police work, or is law enforcement deliberately testing the boundaries of Miranda’s requirements?
How to Use: Two sentences saved Vegas's deviant warnings. Loucious was told that if he couldn’t afford an attorney, “one will be appointed before questioning.” Id. at *2. Judge Gould builds off of that warning, and links it to the warning that Loucious had a right to an attorney during questioning. We’re told that when paired, those two warnings support an inference that Loucious should have concluded that he had a right to consult with an attorney before questioning. Id. at *4.
When cops get creative with Miranda warnings in your case, check to see if these paired admonitions took place – if not, the inference drawn in Loucious may not be possible.
For Further Reading: Will future Vegas appeals be decided by a new Twelfth Circuit Court of Appeals? (A proposed circuit composed of a weird Western donut encircling three states in the old-new Ninth: California, Oregon and Hawai'i).
The San Francisco Chronicle reviews the current state of Arizona Senators' efforts to split the Ninth, in an article here.
(No mention of the poor District of Guam in the article - maybe it'll be the new Thirteenth?)
Image of signed Miranda card from http://www.mlive.com/news/grand-rapids/index.ssf/2012/03/law_talk_after_nearly_50_years.html
Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org