Search and Seizure law may have been laid down by courts, but first there had to be an action by the police. The precipitating action usually falls into one of two categories. First, is the police approach and handling of a situation not previously anticipated in law. The second is incredibly stupid action on the part of the police. When the second rears its ugly head, courts find it necessary to “jerk a knot”, in law enforcement’s collective ass and take the evidence away.
Everybody has heard of “Miranda Warnings.” I carried the same Miranda card (SAPD Form 66-E) for twenty-five years. I still have it. I have been retired for twelve years. I can’t read it anymore, my glasses aren’t strong enough. I was taught to read it to everybody, six to sixty, blind, cripple or crazy. The rules have changed. Miranda is required when a custodial arrest takes place, but may not be required if a person is not under restraint and free to go.
Therein lies the problem. This gives stupid cops wiggle room they shouldn’t be allowed to have. Let me frame a hypothetical:
Cops stop a motorist on IH 10 three hundred miles west of San Antonio. During their conversation, on the side of the road, the cops decide to impound the driver’s vehicle. They don’t arrest the driver and don’t give him his “rights”. They even tell him he is free to leave. The discussion continues and the driver makes incriminating statements leading to his arrest.
Now for some Texas geography. Do you know what is three hundred miles from San Antonio on IH 10? Nothing. Drive in any direction at the speed limit, which is 80 mph for an hour. You know what you find? Nothing. Nine months later in a courtroom the question will be asked again. Was this guy free to go?
The reality is Miranda may be great law. It is lousy psychology. Nine times out of ten, it is almost impossible to shut a crook up. Read him his rights. He doesn’t need that shit! Crooks are smarter than anybody else and they are just itching to prove it.
The example above, may be akin to Kevin Spacey carrying out a seduction. The case, in hand, is more like Kevin Spacey shoving his uninvited hand down one’s pants and tickling one’s balls.
The FBI executed a search warrant against an NSA employee suspected of trafficking in classified material. Here is a recap from the Volokh Conspiracy.
While Martin’s lawyers from the Maryland federal defenders’ office failed to persuade the judge to knock out the evidence seized in the raid on their client’s home, they scored a notable win when Bennett held that Martin’s statements made to FBI agents that day could not be used against him at trial.
Citing testimony at a closed-door court hearing last month, the judge said the use of a SWAT team and a flash-bang grenade to carry out the search could reasonably have led Martin to believe he was not free to leave even though agents insisted he had not been arrested at that time. Martin was handcuffed for about 30 minutes at the outset of the raid, although he was not in cuffs when agents interviewed him.
Bennett said the FBI’s failure to read Martin his Miranda rights rendered his statements inadmissible given the circumstances.
“The Defendant was initially approached by nine SWAT agents dressed in protective gear, some of whom had their guns drawn at the Defendant. Multiple other officers were also on the scene,” wrote the judge, an appointee of President George W. Bush. “A reasonable person in the Defendant’s position would have felt that he was not free to leave.”
I have probably been on a thousand search warrants. Our routine was always the same. Almost everybody gets handcuffed. Everybody is assembled at a central location. Miranda is read to the multitudes along with the contents of the search warrant. We elicit a statement of understanding as to rights and the search warrant from each adult. It really doesn’t matter if we only intend to take one out of the group.
In my experience the time it took to read Miranda and the search warrant provided a break for both crooks and cops. Crooks may sometimes stage “fake drug raids.” It is unlikely that they read “fake Miranda” during the robbery. The process of the reading of rights is therefore reassuring. It also reminds the cops of the reason for the raid, to gather evidence.
There are a few keywords that undermine the government’s claim that what followed their initial greeting of the defendant was a collegial discussion about national security documents. Those words are FBI SWAT, and flash-bang. Unstated, but likely present, was the shattered front door from a forced entry, a large burn mark on the floor and the persistent ringing in the suspect’s ears from the exploding flash-bang.
All of these combined put a lie to the standard government line: “We’re from the government, here to help you!” I’d say the FBI should have known better. To admit that is to give the FBI too much credit. Next thing you know they would start thinking that they were real police.