Intentional violations of Miranda: a strategy for liability.

Over three decades ago, in Miranda v. Arizona,(1) the United States Supreme Court held that custodial interrogations create a psychologically compelling atmosphere that countermands the Fifth Amendment protection against compelled self-incrimination.(2) Accordingly, the Court developed the now-familiar Miranda warnings as a means of reducing the compulsion attendant in custodial interrogations.

In the years that followed, the Court handed down numerous rulings purported to clarify and refine the Miranda decision.(3) The practical result of these rulings is that there now exists a complex legal maze that investigators must negotiate when attempting to interrogate custodial subjects. Occasionally, investigators fail, either accidentally or intentionally, to negotiate the maze properly.

Accidental failures to negotiate the Miranda maze have resulted in the suppression of evidence in subsequent criminal cases,(4) but generally have not resulted in any successful civil suits against law enforcement officers or agencies.(5) However, civil suits alleging intentional failures may have considerably greater potential for success in the courts.(6)

This article reviews the cases that, by limiting the legal consequences of Miranda violations, may have encouraged some law enforcement officers to develop interrogation strategies that incorporate intentional violations of the Miranda rule. The article also examines the potential civil liability for following such strategies.

Limitations on the Effects of Miranda Violations

The Supreme Court has recognized that Miranda warnings are not constitutionally mandated.(7) Rather, the warnings are a protective measure designed to safeguard the Fifth Amendment right against compelled self-incrimination. Consequently, violations of the Miranda rule do not carry with them the same force and effect as a constitutional violation. Statements obtained in violation of Miranda have a variety of lawful uses.

For example, in Michigan v. Tucker,(8) the Supreme Court held that a Miranda violation that resulted in the identification of a witness did not preclude the government from calling that witness to testify at trial. The witness in question was named in an alibi provided by the defendant during an interrogation session that followed an incomplete advice of rights.(9) When contacted by the police, the witness not only failed to corroborate the defendant's alibi but also provided additional damaging information. The defendant subsequently sought to have the witness' testimony excluded at trial on the grounds that the identity of the witness was discovered as a result of the violation of Miranda. The Supreme Court, however, concluded that although statements taken without benefit of full Miranda warnings generally could not be admitted at trial, some acceptable uses of those statements exist.(10) Identification of witnesses is one such acceptable use.

In Oregon v. Elstad,(11) the Supreme Court similarly held that a second statement obtained from a custodial suspect following one taken, in violation of Miranda is not necessarily a fruit of the poisonous tree and may be used at trial. In Elstad, the defendant made incriminating statements during an interrogation that was later determined to contravene Miranda. The defendant repeated those statements and gave a detailed confession during a later interrogation session conducted in full compliance with Miranda. The defense subsequently argued that because the "cat was let out of the bag" during the initial unlawful interrogation, the statement provided during the later interrogation was tainted by the original illegality and, therefore, inadmissible. In rejecting this argument, the Supreme Court found that the goals of Miranda were satisfied by the suppression of the unwarned statement and that "no further purpose is served by imputing `taint' to subsequent statements"(12) lawfully obtained.

Finally, in Harris v. New York(13) and Oregon v. Hass,(14) the Supreme Court concluded that statements taken in violation of Miranda may be used for impeachment purposes. In both cases, defendants had given statements that could not be used in the government's case in chief because of technical violations of Miranda. In order to preclude defendants from falsifying testimony with impunity, however, the Court held that the tainted statements could be used to impeach the defendants when they testified inconsistently at trial.

A Strategy of Intentional Violations

These limitations on the effects of Miranda have encouraged some law enforcement officers to conclude that they have "little to lose and perhaps something to gain"(15) by disregarding the Miranda rule. When custodial suspects invoke their Miranda right to counsel, officers know they cannot lawfully continue to interrogate those suspects until defense attorneys are present.(16) Recognizing that the chances of obtaining incriminating information from counseled suspects are relatively remote, some law enforcement officers may choose to ignore invocations of the right to counsel and continue to interrogate suspects with the intention of gaining witness information or impeachment material. At the very least, officers may continue questioning in an effort to "let the cat out of the bag" with the hope of gaining admissible statements at a later date.

The Potential for Civil Liability

Although interrogation strategies that ignore invocations of Miranda rights clearly defy the mandates of the Supreme Court, until recently, courts had not presented any compelling legal reasons to avoid the technique. The variety of uses for statements taken in violation of Miranda made the technique advantageous in criminal prosecutions, and there was no precedent for holding law enforcement officers or departments civilly liable for the intentional violation of Miranda rights.

In the past, officers sued in federal court pursuant to Title 42 United States Code (U.S.C.) [sections] 1983, or the cause of action created in Bivens v. Six Unknown Federal Narcotics Agents, (17) could easily defend claims of liability based on alleged violations of Miranda. Both Section 1983 and Bivens actions require that plaintiffs prove that law enforcement officers deprived claimants of their federal constitutional or statutory rights. Because the Supreme Court has characterized the Miranda protections as prophylactic and not prescribed by either the Constitution or federal statute, virtually every court of appeals that has confronted the issue has held that no actionable civil liability claim results from a violation of those protections.(18)

The unanimous fashion with which the appellate courts have handled civil suits against law enforcement officers alleging failures to comply with Miranda has one notable exception. In Cooper v. Dupnik,(19) the United States Court of Appeals for the Ninth Circuit held that intentional violations of Miranda may result in law enforcement officers' being held personally liable for depriving individuals of either their Fifth Amendment protection against compelled self-incrimination or the constitutional guarantee of due process.

Liability Under Self-Incrimination Clause

In Cooper, local law enforcement officers in the Tucson, Arizona, area formed a task force to investigate a series of rapes, robberies, and kidnappings. Officers suspected that one person was responsible for the vast majority of the offenses under investigation and dubbed the unknown suspect the "Prime Time Rapist." Even before a suspect was identified, the task force formed an interrogation strategy and selected the officer who would carry it out.

The planned interrogation strategy called for a full advice of rights prior to interrogation, but in the event of a Miranda invocation, interrogation would continue until a confession was obtained. Although the framers of the strategy knew any confession generated by this approach would be inadmissible in the government's case in chief, they hoped to get impeachment material that would inhibit the defendant from taking the stand and claiming his innocence or pursuing an insanity defense.

When Michael Cooper was mistakenly identified as a suspect in the case, he was arrested, advised of his rights, and, in accordance with the preplanned strategy, questioned at length, despite numerous invocations of the rights to silence and counsel. When the interrogation yielded no significant results and the mistakes leading to his identification as a suspect surfaced, Cooper was released from custody and never prosecuted.

Cooper subsequently filed a Section 1983 action against several of the law enforcement officers involved in his arrest and interrogation, alleging numerous violations of his constitutional rights.(20) After a hearing on the motions for summary judgment filed by the defendants, the district court dismissed a majority of Cooper's claims. The claims that survived centered around the in-tentional violation of Cooper's Miranda rights.

On appeal, the defense advanced the time-tested argument that the Miranda safeguards are not constitutionally mandated and, therefore, cannot support a claim under Section 1983. The court of appeals initially agreed with this argument and dismissed Cooper's remaining claims.(21) However, after securing a rehearing by the entire panel of the appellate court, Cooper was successful in having his Miranda claims reinstated.

The court's reinstatement of Cooper's Miranda claims was based largely on the intentional nature of the violations and the coerciveness of the interrogation that followed. The court found that the blatant refusal to honor Cooper's asserted rights generated a feeling of helplessness in Cooper that was exacerbated by the hours of "harsh and unrelenting"(22) questioning that followed. According to the court, the result of this psychological gamesmanship was that Cooper was compelled to make statements to the interrogators.(23) Although these statements were never used against Cooper, the court found that the Fifth Amendment protection against self-incrimination that underlies Miranda had been infringed by the mere fact that Cooper was coerced into making involuntary statements during the custodial interrogation.

The court in Cooper made clear that it was not creating a cause of action for technical violations of Miranda.(24) "Where police officers continue to talk to a suspect after he asserts his rights and where they do so in a benign way, without coercion or tactics that compel him to speak,"(25) no successful Section 1983 action should result. However, the court made it equally clear that intentional violations of Miranda would be viewed as a factor in determining whether "coercion or tactics" compelled custodial subjects to speak.

Under this analysis, an officer might conclude that only those intentional violations that contribute to the procuring of involuntary statements are actionable under Section 1983. However, such a reading of the court's decision in Cooper is misleading since the court also offered an alternative basis for liability.

Liability Under Due Process Clause

The door that was left open under the Fifth Amendment self-incrimination analysis in Cooper was thereafter closed when the court considered the due process implications of intentional violations of Miranda. Although never raised by Cooper, the court gratuitously addressed the issue of whether the intentional disregard for the Supreme Court rule in Miranda shocked the conscience of the court and, thus, constituted a violation of the due process protection.

In Rochin v. California,(26) the Supreme Court considered the lawfulness of a highly intrusive, warrantless search of an individual. In condemning the action, the Court held that the search "offended those canons of decency and fairness which express the notions of justice of English-speaking peoples even toward those charged with the most heinous offenses"(27) and "shocked the conscience of the court."(28) Since Rochin, the measure for determining violations of the Fifth Amendment guarantee of due process has been whether government action "shocks the conscience of the court."

Applying this standard of review to the facts in Cooper, the court concluded that the intentional nature of the Miranda violation contributed greatly to its finding that the government conduct was shocking to the conscience. Particularly offensive to the court was the government's stated purpose of obtaining a statement that would keep Cooper from testifying on his own behalf or asserting the insanity defense. According to the court, "It is proper to anticipate defenses and to work vigorously to meet them. But when the methods chosen to gather such evidence and information are deliberately unlawful and flout the Constitution, the legitimacy is lost."(29)

The court's finding that the intentional violation of Miranda violated Cooper's right to due process may have a far greater impact on law enforcement interrogation practices than its holding that the protection against compelled self-incrimination was infringed. As previously noted, the court's finding of a self-incrimination infraction resulted from the intentional violation being combined with coercive interrogation to produce a compelled statement. Under the court's due process analysis, however, Section 1983 liability for government conduct deemed shocking to the conscience could be based solely on a preplanned strategy to violate Miranda intentionally even though no coercive interrogation took place.

Conclusion

Although Cooper is the only federal court of appeals decision thus far to hold that intentional violations of Miranda give rise to a civil claim under Section 1983, law enforcement officers should be aware that the precedent has been set. This precedent was subsequently followed in California Attorneys for Criminal Justice v. Butts,(30) when the district court relied on the decision in Cooper to hold that an alleged policy to disregard invocations of Miranda rights could support a claim under Section 1983.

Because the argument that intentional violations of Miranda contravene the protections of the Constitution has met with success in these cases, it is likely that plaintiffs will raise the same argument in other courts. Although other appellate courts may refuse to adopt the rationale advanced in Cooper, law enforcement officers should weigh carefully the possibility of civil suit and consult with a departmental legal advisor prior to implementing any interrogation strategies that call for intentional Miranda violations.

Endnotes

(1) 384 U.S. 436 (1966).

(2) The Fifth Amendment to the U.S. Constitution provides in pertinent part that "no person...shall be compelled in any criminal case to be a witness against himself..."

(3) See, e.g., Michigan v. Mosley, 423 U.S. 96 (1975) (interpreting the invocation of the right to silence); Edwards v. Arizona, 451 U.S. 477 (1981) (interpreting the invocation of the right to counsel); Minnick v. Mississippi, 111 S. Ct. 486 (1990) (further interpreting the invocation of the right to counsel); Davis v. United States, 114 S. Ct. 2350 (1994) (determining the clarity necessary for an invocation of the right to counsel).

(4) Miranda, 384 U.S. at 479 (evidence obtained in violation of Miranda is generally inadmissible).

(5) See Mahan v. Plymouth County House of Corrections, 64 F.3d 14 (1st Cir. 1995) "Every court of appeals which has spoken to this matter in similar circumstances has held that no Section 1983 claim lay." Id. at 17.

(6) See Cooper v. Dupnik, 963 F.2d 1229 (9th Cir. 1992) (en bane), and California Attorneys for Criminal Justice, et al., v. Butts, 922 F. Supp. 327 (C.D. Calif. 1990).

(7) Michigan v. Tucker, 417 U.S. 433 (1974).

(8) Ibid.

(9) The interrogation in Tucker preceded the Court's decision in Miranda. The defendant was advised of his right to silence and counsel but was not told of the availability of appointed counsel.

(10) The Court stated that although Tucker was able to block the admission of his own statement, it did not "believe that it requires the prosecution to refrain from all use of those statements. 417 U.S. at 452.

(11) 105 S. Ct. 1285 (1985).

(12) Id. at 1298.

(13) 401 U.S. 222 (1971).

(14) 420 U.S. 714 (1975).

(15) Id. at 723.

(16) See Minnick v. Mississippi, 111 S. Ct. 486 (1990).

(17) 102 S.Ct. 2727 (1982).

(18) See, e.g., Mahan v. Plymouth County House of Corrections, 64 F.3d 14 (1st Cir. 1995) and cases cited therein.

(19) 963 F.2d 1220 (9th Cir. 1992) (en banc).

(20) Cooper claimed a denial of his right to counsel and silence, false arrest, false imprisonment, improper training and procedures, injury to reputation and property interest, invasion of privacy, illegal search and seizure, and conspiracy.

(21) 924 F.2d 1520 (9th Cir. 1991).

(22) 963 F.2d at 1243.

(23) Cooper never retreated from his claims of innocence but did make some statements that may have been slightly damaging had the criminal case gone to triad.

(24) 963 F.2d at 1243-44.

(25) Id.

(26) 342 U.S. 165 (1952).

(27) Id. at 169.

(28) Ibid.

(29) 963 F.2d at 1250.

(30) 922 F. Supp. 327 (C.D. Calif. 1996).

Special Agent Crawford is a legal instructor at the FBI Academy.