The Impact of MONTEJO AND SHATZER on state case law

Q: Yes, officers are reading this information. Does Montejo v Louisiana USS CT 2009 have an impact on Maryland v Shatzer or People V Lira? I thoroughly enjoyed your class and highly recommend it to ALL sworn officers. Too many officers fail to continue to learn and grow in this area. Thank you for all your input, advice and feedback you give to law enforcement around the country.


A: Thanks.
First off -- I always thought the Lira case was great in theory but total nutty in reality. But as looked around I saw more and more cases where courts were opining that the 6th amendment was case specific but the 5th amendment was not. Lira, an Illinois Court of Appeals case ruled that once a suspect asserts his
5th Amendment right to an attorney, no officer from any jurisdiction can approach him to ask any questions -- about ANY case. This is even if the officer has no idea that the suspect has asserted his right to an attorney. SHATZER, below, would impact this ruling -- but MONTEJO, below, would not.

MONTEJO is actually a 6th amendment case that says a suspect can waive his 6th amendment right to an attorney unless he has previously asserted that right at the initial appearance (or some other critical proceeding / formal proceeding).

SHATZER is a 5th amendment case that says that once a suspect has asserted his 5th amendment right to an attorney an officer may normally go back to see if he has changed his mind if the officer waits two weeks (14 days).

Note: If a suspect asserts his 5th Amendment right to remain silent an officer may normally return in an hour or so and see if he has changed his mind.

Best -

DA

What is impact of MONTEJO AND SHATZER

First off -- I always thought the Lira case was great in theory but total nutty in reality. But as looked around I saw more and more cases where courts were opining that the 6th amendment was case specific but the 5th amendment was not.

Lira, an Illinois Court of Appeals case ruled that once a suspect asserts his 5th Amendment right to an attorney, no officer from any jurisdiction can approach him to ask any questions -- about ANY case. This is even if the officer has no idea that the suspect has asserted his right to an attorney. SHATZER, below, would impact this ruling -- but MONTEJO, below, would not.

MONTEJO is actually a 6th amendment case that says a suspect can waive his 6th amendment right to an attorney unless he has previously asserted that right at the initial appearance (or some other critical proceeding / formal proceeding).

SHATZER is a 5th amendment case that says that once a suspect has asserted his 5th amendment right to an attorney an officer may normally go back to see if he has changed his mind if the officer waits two weeks (14 days).

Note: If a suspect asserts his 5th Amendment right to remain silent an officer may normally return in an hour or so and see if he has changed his mind.

Best -

DA

What courts do officers have to pay attention to??

A really good officer / friend of mine once told me that officers are never told about jurisdiction within the court system -- and so, never know what cases govern their conduct.

Officers send me cases from Connecticut, etc. all the time, asking me about the law. I tell them to be careful about following case law from other "jurisdictions."

So here is the short - long answer.

The most important cases, most of the time, are the USSC opinions as those cases create the rules you have to follow.

The Illinois (Arizona) Supreme Court and Illinois (Arizona) Court of Appeals cases are the stories / facts of cases where the state courts explain how the facts of the case in front of them / at bar fit the rules of the US Supreme Court.

Some times the USSC has not yet created a rule for a particular circumstance -- in such cases the Illinois Supreme Court creates the rule -- a good example would be whether you can enter a home to arrest for misdemeanors -- and if so, when.?? Over and over the Illinois Supreme Court and the Illinois Court of Appeals have had to create the rules related to these types of problems (e.g. the rule related to entering noisy and / or underaged drinking parties!!!)

The trial court generally does not have the power to create rules per se that are different from the higher courts, but they do have discretion as to whom to believe. Most of the time a trial court can suppress evidence and not worry about getting reversed by just saying they believe one side or the other based on the credibility of the witnesses. But if there is a case on point, the trial court must follow the case -- as on legal issues, the courts of appeals control.

Cases generally do not get appealed from the state courts to the federal courts of appeals -- they go directly from the Illinois (Arizona) Supreme Court to the USSC.

The federal court system has the federal district court as the trial court, then the federal court of appeals and then the USSC at the top of the pyramid.

The main way officers are impacted by the federal system is if you / officers are sued under Section 1983. This is the federal statute that was enacted to permit law suits to be brought by citizens if officers / state officials violate constitutional rights of citizens.

The main cases here are USSC cases that (again) set the rules related to Section 1983 -- and the 7th (9th) Circuit Court of Appeals -- where there is an ever increasing number of cases that explain when officers can / cannot be successfully sued.

I should mention that when a court of jurisdiction is reviewing a case of "first impression" (the court has never seen the facts before -- or the law is not immediately apparent) -- the court may "borrow" from other jurisdictions that have reasoned through the problem out before. Because the 9th Circuit is much bigger than any other jurisdiction, it decides many many more cases than any other jurisdiction -- therefore the 7th Circuit some times borrows ideas from that -- and other -- circuits.

Some times the federal district courts in Illinois (Arizona) are important, but most of those important cases eventually get appealed to the 7th (9th) Circuit Court of Appeals for (sort of) final resolution. Very very rarely does the USSC take a Section 1983 action.

Clear as mud? If you have questions about this e-mail me.

Best -

DA

Officers in schools -- are they "officers" -- or not?

First, let me say something I should state as a warning in every blog about civil liability / section 1983 -- if you ever read that an officer got "qualified immunity" there is nothing wrong with feeling good for him.

But the decision is not good for you.

"Qualified immunity" means the officer violated the citizen's right(s) -- but since there was no case or doctrine on point to give the officer notice that he was violating the right, he shouldn't be punished.

Please remember that as it is very important.

The case where the officer got qualified immunity puts you / officers on notice that the officer violated the constitution, so if you do the same thing the officer did, you can be successfully sued.

In other words, that officer took the one bite of the apple.

Now to make a short story long about an interesting new case --

This is mainly an Arizona / 9th Circuit type case -- but for many reasons (which I will not go into now), I think this is an important case for all officers as this case does represent a trend IMO --

Here are the facts --
Officers had very good reason (maybe even PC) to believe that a man, Nimrod (what a name!) Greene, was a child molester.

The child protective case worker, and an officer, went to the elementary school where Greene's daughter attended. They took the child from class and questioned her for two hours. The child denied the allegations for about and hour -- then admitted that they were true. The case worker then took the child for a medical exam.

Here is the ruling --
The 9th Circuit ruled that when non-school, government officials (i.e. police and case workers) take people from class and put them in a room, that is a seizure under the 4th Amendment.

The court held that officers / the case workers must have a warrant / court order, exigency, emergency, or the parent's consent to seize a child in this circumstance. In this case there was no exigency / emergency as the case worker waited three days after notification to "seize" the child for questioning.

Both the officer and case worker got qualified immunity with respect to the fourth amendment claims in this case.

(The case worker did not get qualified immunity for requiring the medical examination without notifying the mother.)

Ok -- Here's what concerns me about this case --
Around the country, officers think that if they are just present with a teacher, or a case worker, etc, then the Fourth Amendment prohibitions do not apply in the case.

More and more courts and cases are saying that an officer's presence can create the same rules as in the case of a non-student.

In the Greene case above, the officer did nothing but observe -- but he did have a uniform and gun.

So if you are from Texas, Illinois -- or any other state, I would hesitate to be around when a student is seized or searched, unless there is the requisite suspicion / theory to search or seize a non-student in the same circumstances.

Note
The above rule (that an officer must get a court order) does not apply if an officer has reasonable suspicion or probable cause to believe that the student committed a crime.

Best -

DA

Seminar(s) -- Spring

I have a seminar I'd like you all to consider signing up for --
It's NEMRT sponsored.
It's a three-day search and seizure -- for supervisors --
But I would like officers to attend if you can.
It's at the Winnetka Police Department, April 7-9.

All of the following seminars are in MTU 3 area and are NEMRT sponsored.
YOu can find them by googling NEMRT -- or just logging onto NEMRT.com
Check out the Legal Section.

Crystal Lake -- March 30 - April 1 (S and S)
'
Winnetka -- April 7 - 9 (S and S)

Burbank -- April 14 - (Interrogations -- the law of taking statements)

So Barrington -- April 16 (Civil Liability)

Algonquin -- April 21 - 23 (S and S)

LaGrange Park -- May 5-7 (S and S)

Buffalo Grove -- May 12 (Recent Case Law)

Bolingbrook -- May 26-28 (S and S)

Best -

DA

Suggestion -- check back about once a month

Frankly, I will probably blog here only about once a month.

So that you are not disappointed -- finding that I have not blogged recently -- please check here only about once a month.

Also, if you have any question, please don't ask it on this site.

Send the question to me at DAA2000@aol.com as I will only check this site out about once or twice a month.

Best -

DA

FLORIDA V POWELL -- a USSC opinion of little consequence

Whenever I see an opinion written by Ruth Bader Ginsburg, former ACLU lawyer, that favors law enforcement, I have to assume that it is going to be another milqetoast ruling.

POWELL is that and more.

Basically, the USSC, through Ginsburg, ruled that if a suspect in custody is told during his MIRANDA warning that he has the right to talk to a lawyer before questioning -- and that he has the right "to use any of these rights at any time you want during the interview," the officer is explaining to the suspect that he has the right to an attorney during the interrogation.

Therefore Powell's statement was admissible.

Best -

DA

MARYLAND V SHATZER -- Can officers reinitiate interrogations after a suspect has asserted his right to an attorney?

Ok -- here is short story made long about a new US Supreme Court case.

A little background --

The difference between the 5th and 6th amendment right to an attorney
Officers and some attorneys get confused about the difference between a 5th amendment right to an attorney -- and a 6th amendment right to an attorney.

The 5th amendment right to an attorney is triggered when a suspect in custody is given his Miranda warnings and says something like, "I want my attorney."

The 6th amendment right to an attorney is triggered by "formal proceedings" that have been initiated against the suspect / defendant.

I am going to explain only issues related to the 5th Amendment right to an attorney.
This right has been given undue deference by the courts.

However, a recent decision by the United States Supreme Court has limited the protection this right affords.

First off, many courts, including apparently Illinois, Arizona and Texas, have implied that the right is virtually "eternal" if the suspect is never released from custody.

In other words, if a suspect asserts his right to an attorney, officers have traditionally been prohibited from returning to talk to the suspect at all about the case -- ever.

Some states have even taken this rule one step further. They have said that if a suspect asserts his 5th Amendment right to attorney, that right is not "crime specific" -- meaning that officers cannot question the suspect about any crime while he is still in custody. (See e.g. People v Lira, 742 NE2d 885 ( 2001)

The United States Supreme Court ruled...
On February 24, 2010, that after a suspect asserts his 5th amendment right to attorney, officers may return after 14 days and see if he / she has changed his mind. This is apparently the rule whether or not the suspect has been released from custody. MARYLAND V SHATZER

To appreciate the holding of the this case, I am compelled to state the facts --
Shatzer molested his son. While in prison on a different offense, an officer "warned" Shatzer and Shatzer asserted his right to an attorney. The officer immediately cut off questioning.

Later, more facts emerge that Shatzer molested his son, so an officer visits Shatzer in prison about three years later. This officer gives Shatzer his "warnings" and Shatzer waives his rights and makes admissions about the molestation(s).

And now the ruling of the court of appeals in Maryland...

The lower court basically said that once a suspect asserts his right to an attorney about a case, he can never be approached again about the case. So the later statement was suppressed.

As stated above, the USSC reversed the Maryland court ruling that 14 days was plenty of time for a suspect to be free from police attempting to question him. Therefore his statement was admitted.

Note -
If the defendant has asserted his right to an attorney at his initial appearance, you cannot question him about the crime for which he is being prosecuted. That is a 6th Amendment right.

Are you confused enough now?

If you don't get it, write me -- and I'll try to answer your questions.

Best -

DA