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In the landmark case Miranda v. Arizona, the Supreme Court created what are now commonly referred to as "Miranda Rights." These rights were created to mitigate the coercive effect of interrogations while a defendant is in police custody. Recognizing that the Fifth and Fourteenth Amendments prohibit forced self-incrimination, the Supreme Court mandated that defendants are made aware of these rights before any custodial interrogation begins, namely their right to remain silent and their right to the presence of an attorney. However, if a defendant is not in custody, police officers do not have to read him or her their Miranda Rights, despite being questioned about an alleged crime.

A person is in custody for Miranda purposes when he or she is placed under formal arrest, or a reasonable person would not feel free to leave during questioning. If a defendant feels free to terminate the interrogation at any time, they are not in custody. The Court uses five factors in their analysis: (1) the length of the questioning, (2) the location of the questioning, (3) the accusatory, or non-accusatory, nature of the questioning, (4) the amount of restraint on the individual's physical movement, and (5) statements made by officers regarding the individual's freedom to move or leave. Using these factors and the totality of the circumstance, the Court will determine if the restraint on one's freedom arises to the degree usually associated with a formal arrest.

In United States v. Wright, a search warrant was executed at the defendant's home in connection to an on-going child pornography investigation. A police officer escorted the defendant to his police car where the defendant could wait during the search. The officer told the defendant that he was not under arrest and could leave whenever he wanted. He was not handcuffed or restrained in any way. Before being questioned, the defendant was read his Miranda Rights and again told that he could leave at any time because he was not under arrest. The defendant made several incriminating statements that he later moved to suppress at trial, arguing that he had unambiguously requested an attorney to be present during questioning.

Nevertheless, the 5th Circuit Court of Appeals held that the defendant was never in custody for Miranda purposes, so he was not entitled to the right of counsel, and thus the Court denied his motion. The defendant was made aware on at least two different occasions that he was not under arrest and that he could leave at anytime. Moreover, the defendant's movement was not restrained during questioning that prevented him from leaving, and his overall tone during the interview was cooperative since he was trying to tell his story to the police officer. Because of these factors, the Court held that the defendant's incriminating statements were admissible at trial.

As we continue to advise: Do not make any statements to the police when they are investigating you for a crime (regardless of whether you are in "custody'). Ask for an attorney and wait until you get one before you say anything.

Although the Fourth Amendment acts as a safeguard against unlawful search and seizures, the State can still use evidence it finds against a defendant in a consensual search of their property if the search is sufficiently detached from an illegal search that purges any unconstitutional taint. Accordingly, such a search is valid if the search was voluntary and an independent act of freewill.  In order to determine whether a search was an independent act of freewill, the Court analyzes several factors, none of which are controlling by themselves:

1. the temporal proximity of the illegal conduct and the consent,
2. the presence of intervening circumstances, and
3. the purpose and flagrancy of the initial misconduct.

In US v. Montgomery, the Defendant was stopped by a police officer and frisked during a traffic stop in front of the Defendant's house. As the officer frisked the Defendant, the Defendant pushed the officer's hands away from his pockets after the officer felt a bulge. The Defendant revealed that the bulge was cocaine, prompting his arrest and Mirandizing. The Defendant, eventually, consented to a search of his house. During the search, the Defendant was allowed into the house to obtain medicine and made several requests to officers on scene for his cell phone to erase some "naked pictures" that he did not want his father to find. The Defendant consented to one of the officers using his phone to delete the pictures, but the officer found what appeared to be child pornography. The Defendant was later indicted for possession of child pornography.

At trial, the Defendant claimed that the frisk and seizure of cocaine that led to his arrest was unlawful, which tainted his consent for the officer the see his cell phone. Nevertheless, the Court held that even if the frisk and seizure were illegal, the Defendant's several voluntary and independent acts of freewill relieved the search of the Defendant's phone of any unconstitutional taint, specifically, the Defendant asking several times to see his cell phone so that he could delete the naked images, and the Defendant consenting to a search of his phone after being Mirandized. Nothing was presented at trial that showed the police officers even wanted to search his cell phone. In the words of the Court, "[The Defendant] broached the phone search himself." Moreover, the Court also cited several intervening events and factors establishing that the Defendant's "consent was sufficiently detached from the arrest to purge any taint" such as the officers reading the Defendant his Miranda rights, the Defendant's criminal record, and the Defendant going into his house to retrieve his medicine.

Yet another reason why we advise NEVER GIVE CONSENT TO SEARCH, period.

Posted by Luke A. Williams.

I recently attended - along with prosecutors, other defense attorneys, and law enforcement officers - a continued legal education course regarding wrongful conviction. The course kicked off with the study of a case out of North Carolina of two men (19 and 15 at the time of their convictions) who were recently exonerated via DNA evidence.

The men, Henry Lee McCollum and Leon Brown, both confessed to killing an 11-year-old girl in 1983. The question that immediately floated around the room was: why would these two boys confess to a horrific murder if they didn't actually commit the crime? It's a fair-enough question and probably the reason the jury that eventually found them guilty of the murder sentenced both of these boys to death. But - in the spirit of Paul Harvey - the "rest of the story" explained how these confessions were coerced.

There was no physical evidence that tied McCollum and Brown to the crime. The lead that was provided to investigators came in the form of a rumor from a fellow schoolmate of the boys who cast suspicion on them because they had recently moved from New Jersey - they were outsiders. Investigators took them in for questioning. Initially, they took in Henry. After five hours of questioning with no lawyer present and with his mother weeping in the hallway, not allowed to see him, Henry told investigators a story of how he and three other boys attacked and killed the girl. He was promised that if he confessed to the crime he would be released to his mother - he was 19 years old. His "statement" was typed out by the investigators and he put his signature to it after the 5-hour interrogation. The last thing Henry said after signing the confession was, "Can I go home now?"

After Henry's interrogation, Leon was brought in (at 2:30 a.m.). He was told that Henry had confessed and implicated Leon being involved as well. Leon was made similar promises and also told that he would be executed if he did not cooperate. After another lengthy interrogation, Henry also confessed to attacking and killing the girl.

Both men were tried and both men were sentenced to execution.

After 30 years, lawyers from the Center for Death Penalty Litigation began pressing for DNA testing of the physical evidence in the case, which included a cigarette butt found at the murder scene. The DNA was matched - but not to either McCollum or Brown. The DNA came back as a match to Roscoe Artis, a man who lived in a house yards away from the wooded area where the murder took place. Coincidentally, only a few weeks after the murder, Artis confessed to the rape and murder of another 18-year-old girl in the same town. The circumstances surrounding that murder contained striking similarities to the murder that McCollum and Brown were convicted of. Artis was implicated in a number of other murders that occurred in the same area and all under the same or similar circumstances. Based on the DNA testing and the investigation into Roscoe Artis, after 30 years in prison and on death row, McCollum and Brown were exonerated and released.

It's a story that, as a defense attorney and former prosecutor, I've heard before. While not the norm and certainly not common, it's something I know has happened. The key question though is, "does this still happen?" I was surprised when I overheard one of the members of law enforcement in the room exclaim that, "Oh, this would never happen these days." While I certainly agree that things have changed and drastically improved since the days of McCollum and Brown, I can't help but think that the mentality of the impossibility of this happening again is an extremely dangerous one.

I imagine if this case happened today; certainly DNA would be gathered and tested against suspects. But, what happens if there isn't any DNA at the scene (yes, this could still happen)? What happens if false or speculative accusations or suspicions occur again? What happens if false confessions happen again? In a horrific murder case, I think its naïve for anyone in the field of criminal justice to make a blanked statement that, "this could never happen again." It can and it will. We have a great justice system but not a perfect one - a human one.

Things have got better. Prosecutors, defense attorneys and law enforcement personnel have a heightened awareness of the possibility of a wrongful conviction. But, we all must remain vigilant and never put on blinders to the fact that it can happen again.

Can Police Enter a House Without Knocking or Obtaining a Warrant | No-Knock Entry Defense Lawyers, Fort Worth.

The Fourth Amendment, generally, protects American citizens from unreasonable searches and seizures. Nevertheless, there are exceptions that allow police officers the ability to enter one's home without a warrant or notice. These instances are commonly called "No-Knock" entries and are permitted only when a police officer has a reasonable suspicion that knocking and announcing their entry would be dangerous or futile.

In Trent v. Wade, the Defendant, a police officer, witnessed two all-terrain vehicles (ATVs) racing on a closed section of a freeway. He attempted to pull over the two ATV riders, but they both fled, and the Defendant followed one rider to the Plaintiff's house. The Defendant parked outside and entered the house without a warrant, upon which he encountered the Plaintiff and discovered that his son was the person riding the ATV. The Defendant arrested the son, and the Plaintiff sued the Defendant under 42 U.S.C § 1983 claiming that the Defendant violated his Fourth Amendment rights against unreasonable searches and seizures by entering his house unannounced and without a warrant.

The Defendant argued that because he was in hot pursuit of the Plaintiff's son, the hot pursuit exception authorized his unannounced warrantless entry into the Plaintiff's house. However, in order to justify a "no-knock" entry, the police officer must reasonably suspect that knocking and announcing his or her entry would be dangerous or futile. Such an entry is futile when the occupants of a house are already aware of the police officer's presence outside. The Court ultimately held that while the Plaintiff's son was aware of the Defendant's presence, there was a question of fact about whether the other occupant's of the house were aware of his presence.

Consequentially, the Defendant was denied qualified immunity.

I grew up with Sheriff Andy Taylor. And his trusty sidekick Deputy Barney Fife. If you've never seen the Andy Griffith Show, shame on you. It is an American classic about life in the small rural town of Mayberry, North Carolina. I would venture to say I've seen every episode (the black & white ones) at least four times each (syndicated reruns of course, because the show originally aired in the '60s).

One of the things I loved about Sheriff Andy Taylor was his innate sense of right and wrong. While Barney Fife was out there trying to arrest jaywalkers and moonshiners and everyone else who broke a minor municipal code, Andy saw the big picture. Andy may have very well been justified to make arrests or detain citizens for investigation, but he was more concerned with what was right and decent. And when he suspected or observed actual criminal activity he took action.

As criminal defense lawyers in Fort Worth, Texas, we read police reports every single day. In many of the police reports we read, the officer's actions are more akin to Barney Fife than Andy Taylor. I get the feeling that many officers have the mindset of "arrest everybody and let the DA sort it out." When officers are called out on a family assault or domestic violence call, somebody is getting arrested. Period. The officers don't try to deescalate the situation or truly figure out what the couple needs. They generally listen to the parties and arrest the one that has fewer injuries (regardless of which person may have called the police).

We've also seen numerous arrests of young people for committing youthful hijinks, such as trespassing on school property. Sheriff Taylor would have taken the kid home and made him tell his parents what he was doing. He wouldn't arrest the kid. But officers in DFW are making arrests in these scenarios.

Of course, we only see the cases where there are arrests. There may indeed be officers out there that are getting it right. But, we still see too many arrests when something less would have achieved the right result. Don't get me wrong.  We're not against law and order. We are champions of justice, and justice does not always mean arrest and prosecution. Perhaps the police academy training should begin with a rerun of The Andy Griffith Show. Personally, I recommend the episode where the cow thief was putting shoes on the cows.