A Good Start to a Long Day
Just finished a full day in the courtroom, most of that taken up by several probable cause hearings. In this jurisdiction, these hearings are basically mini-trials, but with a "some evidence of illegal activity by your client" burden of proof. The state doesn't need as many witnesses, and since the judge examines the evidence in the light most favorable to the State, credibility and impeachment aren't part of the hearing. Generally, we put on these hearings only for the cases that are likely going to go to trial. It's also our first bite at the suppression apple, though you're arguing to Judges who serve only "at the pleasure" of the trial judges.
My guy got arrested after he tried to get away from the police, by vehicle and on foot. The police found a gun (felon in possession) and some (felony) drugs in the car he was in. However, the gun and drugs were found underneath the rear passenger seat and were neither visible nor accessible to the driver. Unfortunately, my guy told the police that the car was his and nobody else had driven it for at least a year. I needed to get the statement tossed out.
There wasn't any one thing obviously wrong with the statement. The cops said they Mirandized him, so no automatic win there, and the argument fell back to the totality of the circumstances with regard to his knowing, voluntary and intelligent waiver. Here's how it fell out:
The same officer who questioned my guy was the one who first tackled him and used "holds and grappling techniques" to "subdue" him. The officer admitted that for him, "grappling" in this case also included punching.
My guy was also arrested for DUI, having a strong odor of alcoholic beverage, staggered gait, slurred speech, and red, bloodshot eyes. I learned from a hearing I lost the day before to ask him how much time passed after the arrest to when he questioned my guy; 10 minutes. After those 10 minutes, all that could be detected was "some" odor of alcoholic beverage and "slightly" slurred speech.
The questioning took place at the precinct, not in the field; the cop had access to voice and video recording devices, but used none, nor did he take contemporaneous notes. At my hearing, he added some stuff to what was not in the report he prepared later: that my guy also told him that he knew the gun was in the car. We did the wedding dance, and he admitted that a statement of knowledge of the gun was something he was trained to put in his reports and was something that he made a practice of putting in his reports, if such a statement was made.
Although the questioning took place in the precinct, the officer did not use a written Miranda form, where the defendant initials by each of the Miranda rights and signs that he agrees to waive his rights and talk. Furthermore, the office testified that my guy indicated his waiver and desire to talk with the officer by "nodding his head."
The DA did a very impressive job of trying to staunch her case's multiple hemorrhages; she anticipated where I was going with each problem and tried hard to cover those areas. In the end there wasn't much for her to argue, but she argued the law; that the Court should consider "the totality of the circumstances" in denying my suppression motion. However, the totality of the circumstances was exactly what was wrong with the case. My client's statement got thrown out, leaving nothing to connect my guy to the gun and drugs under the back seat.
I then went on to lose the rest on my hearings that day, most of them to her.
The Best Part of the day was when I was doing the wedding dance with the cop as to why he didn't use the written Miranda waiver:
(After establishing that although there were written waivers readily available, he did not use one)
Jack: Officer, have you received any training in doing Miranda waivers?
Cop: Yes, sir.
Jack: Did you receive training at the Academy in how to properly do a Miranda waiver?
Cop: Yes, sir.
Jack: Did you receive any training in how to fill out the written Miranda waiver form?
Cop: No, sir.
Jack: So, at the Academy, they don't teach you how to fill out this one-page waiver form for Miranda warnings?
Cop: No sir, the waiver form is so simple they don't even need to teach you how to use it.