US v. Mittel-Carey, No. 06-1960. The First is back. No more comments about current affairs from me. In addition to several erratum, they give us this case. . And what a case it is. the First affirms a suppression order that the government appealed. This really comes down to the question of whether someone is “in custody” when the police serve a search warrant on a house, and telling the occupants where to sit and such. In this case, the girlfriend asked permission to change into her work clothes to go to work, because she felt that she had to. The cops did their normal silly dance with the defendant and claimed that cooperating with them (without a lawyer) would result in better treatment or something that only lay people believe. But, the cops got even crazier. The defendant asked if he could have a lawyer, and the cops said "’could not advise him one way or the other,’ but that it was ‘his right.’ He also told Mittel-Carey that ‘if he got an attorney, the attorney was going to tell him not to speak to the FBI.’” Then, the defendant made incriminating statements. Then, the agents let him feed his bunnies and go to the bathroom and leave.
So, the First looks at what it considers to be the “totality” of the circumstances and concludes that, yes, when you serve a warrant early in the morning, with eight cops, guns drawn, exerting physical control, and try to trick someone into not talking – for over 90 minutes, then yes, he is in custody, and he should have been Mirandized. The First says that the physical control is the most important, the government says that it was necessary to preserve evidence, but the defendant says, “While that may be so, this justification does not answer the very different question of whether a reasonable person, awakened at 6:25 AM by law enforcement officers (one with an unholstered gun), who is interrogated for up to two hours and not permitted freedom of movement within his own home, would believe he was not at liberty to terminate the interrogation and leave.” Therefore, the First says that reasonable people would think that they are not free to leave.
By the way, the case is about child pr0n, so I gotta give props to the First for not getting swept up in the mood of "no Miranda when child pr0n is involved."
Comments