"Pretext Communications" and the Right to Remain Silent

A recent decision from the Oregon Court of Appeals raises what I think is an interesting issue about the interaction between online communication and a suspect’s invocation of the “right to remain silent.”

The case is State v. Davis, 2010 WL 715487 (Oregon Court of Appeals 2010), and this is how the issue arose:

[John Richard Davis] retained counsel after a police detective launched an investigation into allegations that [he] had sexually abused his stepdaughter. In a letter dated December 31, 2003, [Davis]'s counsel informed the detective of the representation, invoked [Davis]'s right to counsel and right to remain silent, and instructed the detective to contact [Davis]'s counsel if the detective wished to interview [Davis]. The letter stated: `Please do not talk to [Davis] except through me. . . . ‘

The state concedes that the letter communicated [Davis]'s intention to invoke his right to remain silent and right to counsel. . . . [T]he detective understood that [Davis] retained counsel for the sexual abuse investigation and did not want to talk to the detective about that investigation without counsel being present.

The detective continued his investigation without contacting [Davis]. But . . . in August 2004, the stepdaughter told [him] she and [Davis] had made `incidental contact’ via an instant messaging service. [He] intentionally disregarded the letter [Davis]'s attorney sent eight months earlier and arranged for what he called `pretext communications’ between the stepdaughter and [Davis]. . . . [T]he detective installed instant messaging software on his computer, invited the stepdaughter to his office to set up her account on his computer, and `started having [her] come in . . . a couple of days a week so [he] could supervise contact between [her and [Davis]]’ via the instant messaging service. The detective explained:

`[I] developed what was going to be [the stepdaughter's] persona, . . . a somewhat fictional account of what was going on in her life at that time that I felt would facilitate conversation between her and [Davis] and put [him] at ease. And also most of the chat that went on between them it was [the stepdaughter and [Davis]] talking . . . but at times I did direct [her] to say certain things I thought were probative to my investigation.’ . . .

`I wouldn't say I controlled [her]. I set a basic framework by which she would work with them, but most of this was her chatting with [Davis], but I set the framework, and in some of these really important questions that were germane to the case, those were me.’

(Emphasis added in the opinion). State v. Davis, supra. The pretext communications continued “from August 2004 through April 2005” and, as the Court of Appeals noted, the detective “elicited incriminating statements” Davis. State v. Davis, supra. The detective then “relied on those statements in an affidavit for a search warrant, which he obtained and executed; on the basis of the evidence seized during the execution of the warrant, Davis was indicted on charges of sexual abuse, sodomy, rape and contributing to the delinquency of a minor, all in violation of Oregon law. State v. Davis, supra.

After being indicted, Davis “filed a pretrial motion to suppress all statements he made during the `pretext communications’ between August 2004 and April 2005 and all evidence derived from those statements.” State v. Davis, supra. Davis claimed the statements should be suppressed because they were obtained in violation of his 5^th Amendment privilege against self-incrimination and Article I §§ 11 and 12 of the Oregon Constitution. State v. Davis, supra. Article 12 says that “[n]o person shall . . . be compelled in any criminal prosecution to testify against himself” and Article 11 creates a right to counsel for the accused in a criminal prosecution.

As I assume everyone knows, the 5^th Amendment states that “[no person shall be . . . compelled in any criminal case to be a witness against himself”. State v. Davis, supra. That portion of the 5^th Amendment creates the privilege against self-incrimination; as Wikipedia notes, the privilege can only be invoked under certain circumstances. And neither the common law antecedents of this portion of the 5^th Amendment nor how it has been understood in this country establishes that you can invoke the privilege when you haven’t been subpoenaed by a court or other tribunal and are confronted with what the Supreme Court calls the “cruel trilemma” – tell the truth and incriminate yourself, like and commit perjury (because you’re under oath or refuse to answer and be held in contempt and jailed until you speak).

To remedy that, the Supreme Court created the Miranda rules in 1966). As Wikipedia explains, Miranda explicitly gives people a right to remain silent when they have been taken into custody by the police and are being interrogated. To be able to invoke the Miranda right to silence (and right to counsel), you must be IN custody and be subject to interrogation under the standard set out in Miranda. The pretext communications at issue in this case would qualify as interrogation, but Davis clearly wasn’t in custody when he played his part in those communications . . . so Miranda doesn’t apply.

The trial court judge who ruled on Davis’ motion to suppress clearly understood that because he/she granted the motion “based on a violation of [Davis’] right to counsel and his right to remain silent” under Articles 11 and 12 of the Oregon Constitution. State v. Davis, supra. The prosecution appealed the ruling and the case went to the Oregon Court of Appeals, which also limited its analysis to potential violations of the Oregon Constitution. State v. Davis, supra. The Court of Appeals winds up upholding the trial court’s granting the motion to suppress based on a violation of Davis’ right to silence, so we’re only going to focus on that issue.

Oregon has done something states are free to do when they’re applying their own state Constitution: give defendants more rights than they have under the federal Constitution. As I tell students in my Criminal Procedure class, the federal Constitution creates the baseline – the minimum allowable quantum – of protection for U.S. citizens. Since the Constitution requires the states to enforce that level of protection but does not bar them from enforcing additional layers of protection, states are free to expand the right to silence or other rights pretty much as they see fit.

And that’s what Oregon has done with the right to remain silent: According to the Court of Appeals, the right to silence created by Article I § 12 of the Oregon Constitution

may be in jeopardy when a person becomes the focus of a criminal investigation, because a criminal defendant's out-of-court statements may be admissible evidence. It is well established that a person's right to remain silent arises before trial when that person is in full custody or in a setting that judges and law enforcement officers would recognize as compelling. . . . But just as the right to counsel can be rendered meaningless by an individual's uncounseled actions before arrest, the right to remain silent can be rendered meaningless by an individual's statements prior to an interrogation under compelling circumstances.

However, the right to remain silent in a noncompelling interrogation is narrow. Police officers can engage in `mere conversations’ with people, even if the officer makes `inquiries a private citizen would not.’ . . . When a person, not in a compelling setting, unequivocally invokes the right to remain silent as to an ongoing investigation conducted by a police officer, the police officer must respect that assertion of the right to remain silent if the police officer is personally aware of that invocation.

State v. Davis, supra. The Court of Appeals then held that what the detective did in this case violated Davis’ right to silence under the Oregon Constitution:

[Davis’] attorney unequivocally invoked [his] right to remain silent by sending the detective a letter. The invocation was specific to the detective's investigation into allegations that [Davis] had sexually abused his stepdaughter. By the letter that defendant's attorney mailed, the detective personally knew that [Davis] invoked his right to remain silent. The letter, by itself, did nothing to prevent or stop the detective from lawfully conducting the investigation. In fact, the detective lawfully continued the investigation for eight months after receiving the letter. However, once the detective decided to contact [Davis], the letter served to limit the means by which [he] could make contact. The detective could contact defendant through his counsel. Instead, the detective obtained computer software to communicate with defendant and recruited the stepdaughter to make the `pretext communications’ with [Davis]. The stepdaughter agreed and acted as the detective's agent. . . . Then, the detective communicated with defendant, through the stepdaughter, for the purpose of conducting the investigation. On those facts, the detective's actions violated defendant's constitutional right to remain silent under Article I, section 12.

State v. Davis, supra. The Court of Appeals therefore affirmed the granting of Davis’ motion to suppress statements he made as a result of the pretext communications and the evidence derived from those statements. It noted, though, that “[o]ur resolution of this case does not hold or imply that [Davis] was entitled to Miranda warnings before the incriminating statements were elicited.” State v. Davis, supra. In other words, the court knew Miranda didn’t apply here because it only comes into play when someone is “subject to custodial interrogation.” Miranda v. Arizona, 384 U.S. 436 (1966). The Miranda Court defined custodial interrogation as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”

Davis clearly wasn’t in custody: When the pretext communications occurred, he was living his regular life, rather than being held in an interrogation room or locked up on a cell somewhere. And he wasn’t subjected to “interrogation” in the Miranda sense.

In Illinois v. Perkins, 496 U.S. 292 (1990), the U.S. Supreme Court held that someone isn’t subjected to Miranda interrogation if he doesn’t know he’s talking to the police. In Perkins, police used a trick to get Perkins to talk about a murder they suspected he’d committed; they sent a snitch and an undercover officer who pretended to be prisoners into the jail where he was staying. The two talked to Perkins about trying to break out of the jail and used that conversation to trick him into telling them about the murder he’d committed. Perkins moved to suppress, arguing that his Miranda right were violated, but the Supreme Court said he wasn’t “interrogated” because interrogation requires that you know you’re talking to a police officer.

So this case would come out very differently in a federal court or in a state that enforces the Miranda rights but doesn’t add any protection to them under its own constitution.