by Luke Baumstark
“Do cops lie?” was a question I heard frequently during my days as a prosecutor in the City of St. Louis. I typically answered that, since police officers are human beings (who, of course, do indeed lie), that, yes, they sometimes do. Although I believe that most of the officers I worked with honored their post and did not lie about substantive matters, time has shown that some law enforcement professionals unfortunately do lie about important things, including whether they have violated a suspect’s constitutional rights.
A United States District Court judge from Connecticut recently commented on some unfortunate trends in federal investigations, namely, officers and agents omitting pertinent information, using deceptive practices, and even outright lying to suspects in order to trick them into making self-incriminating statements. After suppressing statements elicited while executing a search warrant in a Defendant’s home, this Judge called for law enforcement officials to be required to read suspects their Miranda rights in all interrogations, instead of only “custodial” ones. The case was United States v. Faux, and the Judge was the Honorable Stefan R. Underhill.
As Ms. Faux was leaving for vacation with family, she was confronted at her home by a group of armed FBI agents who interrogated her for over two hours as they executed a search warrant. U.S. v. Faux, 2015 WL 1347041 at 3 (D. Conn. 2015). During the interrogation, they kept her separated from her husband and followed her as she moved throughout her own home. Id. at 4. The agents never informed Ms. Faux that she did not have to answer their questions, told her that she was free to leave, or advised her of her Miranda rights. Id. At Further, when Ms. Faux became nervous and asked whether she needed a lawyer, her interrogators told her “Not yet.” Id. At the end of the interview, after Ms. Faux had made several self-incriminating statements, the agents did not arrest her. Id. They did, however, serve her with a grand jury subpoena. Id.
Judge Underhill began his analysis of the admissibility of Ms. Faux’s statements by noting that Miranda currently applies only to “custodial” interrogations. Id. at 10. In determining whether an interrogation is “custodial,” courts inquire whether there was a restraint on freedom of movement to the degree associated with a formal arrest. California v. Beheler, 463 U.S. 1121, 1125 (1983). Unfortunately, this can be a difficult standard to meet. As noted by Judge Underhill, “absent a formal arrest, Courts rarely conclude that a suspect interrogated in her own home was ‘in custody.’” Faux, 2015 WL 1347041 at 12. (internal citations omitted).
Fortunately for Ms. Faux, however, Judge Underhill found that her interrogation was custodial, based on the execution of the warrant on her home without her choice, her forced separation from her husband, the restrictions on her movement, her interrogators failure to tell her that she was free to go, and the fact that she was attempting to leave when the agents first arrived. Id. At 14. Accordingly, he suppressed her statements obtained during the interrogation. Id.
In addition to the question of whether an interrogation is “custodial” (and therefore implicates a subject’s Fifth Amendment right against self-incrimination), Judge Underhill also touched on another potential constitutional bar to admitting self-incriminating statements – coercive interrogations. He cited to Beckwith v. United States, 425 U.S. 341, 348 (1976), stating that, where law enforcement officials overbear a defendant’s will to resist questioning, they violate his/her Fifth Amendment right to due process of the law, rendering any statements obtained involuntary and inadmissible. Faux, 2015 WL 1347041 at 17. He further stated that, in determining whether statements were involuntary, Courts will consider “‘the length of the questioning, the defendant’s physical and mental capabilities, and the government’s method of interrogation’ including whether it employed trickery or deceit in eliciting the incriminating response.” Faux, 2015 WL 1347041 n.8. Citing U.S. v. Mast 735 F. 2d 745, 749 (2nd Cir. 1984). Despite, as noted above, suppressing Ms. Faux’s statements because of the custodial nature of the interrogation, Judge Underhill held that the tactics of the agents (as inappropriate as they may have been) were not coercive enough to render her statements involuntary. Faux, 2015 WL 1347041 n.8.
Although he was able to suppress Ms. Faux’s statements through existing precedent, Judge Underhill recognized that not all suspects deceived by law enforcement will be so fortunate. After suppressing the statements, Judge Underhill authored a section titled “Comment on the Government’s Conduct.” Id. at 16. In it, he called the government to task for failing to advise Ms. Faux that, by the time the FBI agents arrived at her home, she had been the target of an investigation lasting over a year. Id. Understandably, this omission struck Judge Underhill as “truly unfair.” Id. He went on to suggest that not only subjects of search warrants, but also targets of all investigations, should be advised of their Miranda rights. Id. He emphasized that “by the time an individual becomes a target …the government generally has all of the information it needs to indict.” Id.
Unfortunately, there is little reason to think that Judge Underhill’s recommendation (as well reasoned and astute as it is) will become binding precedent any time soon. Hopefully, other members of the judiciary will agree, and this much-needed change to our jurisprudence will be made.
In the meantime, individuals subject to federal interrogations (or “interviews” as they may be termed, in order to encourage self-incriminating statements) should be weary of the type of deception that Judge Underhill condemned. It is important to remember that, unless and until Judge Underhill’s recommendations are adopted, the prohibition against lying during interrogations is very much a “one way street.” Although you can land yourself in very hot water by lying to law enforcement, they have every incentive to deceive you and not advise you of your right to counsel, as long as the interrogation is not “custodial,” and their tactics fall short of the judicial definition of “coercion.” The best way to protect yourself from falling victim to such deception and inadvertently incriminating yourself is to retain an attorney knowledgeable in criminal law, even if you have been expressly told that you are not the target of the investigation, or are simply a witness. Although some may fear that “lawyering up” can make you “look guilty,” law enforcement may already see you that way, and a good attorney may be able to keep you from giving interrogators the information they need to cement a case against you. Ms. Faux’s “near miss” at the hands of dishonest FBI agents provides a cautionary tale to the rest of us. When it comes to “lawyering up” in the face of a federal investigation, it is certainly better to be “safe” than “sorry.”
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 Miranda requires that law enforcement officers tell defendants that they have the right to remain silent, that anything they say can be used against them in a court of law, that they have the right to the presence of an attorney, and that, if they cannot afford an attorney, one will be appointed for them prior to any questioning. Miranda v. Arizona, 384 U.S. 436, 478-479 (1966).