Both Mike at C&F and Eugene at VC have posted about Judge Bybee’s 9th Circuit decision in United States v. Craighead.  It’s possible that Mike and Eugene are the same person, by the way, as they have never been seen together.

This is the case where the court held that an interrogation within the defendant’s home, while other agents are executing a search warrant, can be a custodial interrogation for Miranda purposes.  The challenge in this case was that since the defendant was being questioned within his own home, it could not be custodial and therefore warnings were not required.  The Court disagreed and held that a custodial interrogation can be had within the defendant’s home.

There has been lots of discussion about the primacy of a home and the special protections conferred on it by the Constitution and the courts.  Gene goes through the first five amendments in particular, although why he ignored the 9th is beyond me. 

I prefer a different approach (naturally) to the problem, foreshadowed by the comment by Kipesquire to Mike’s post.  The Constitution protects people, not places.  Normal people are intimidated by the police.  They are intimidated by them on the street and in their car.  There is nothing more intimidating that having the police break down your door (figuratively or literally) and enter your home without your legitimate permission.  The very notion that the fact that an interrogation happens inside the home somehow vitiates the intimidation factor is bizarre.  This is the real estate version of rape.

Caselaw has created a sanitized series of rules that pretend that people have the opportunity to exercise free will when confronted by a bunch of cops in riot gear with automatic weapons.  They are screaming at you to get on the ground while pointing their muzzles at your children’s heads, with you knowing that there’s a 50/50 chance that they will beat you, kick you and stomp on your head within seconds of your assuming a prone position.  If you are lucky, you will not require stitches, a cast or a funeral. 

It doesn’t really matter where this happens.  Do appellate judges have any doubt about this?  The cops don’t have to administer a good beating in every instance.  Just enough times to serve as a clear warning to anyone who has the audacity to not move fast enough that they can and will turn them into human pulp if necessary.  This message has been delivered.  There is no sentient being in American society who hasn’t figured out that they have the guns, tasers, batons and boots sufficient to do the job.

The phrase “submission to the shield” is used to express the tendency of citizens to comply with police against their will.  The law requires that a waiver of rights be knowing, intelligent and voluntary.  There has never been such a waiver.  At minimum, it fails the “intelligent” prong.  But more importantly, how can anything be voluntary when the threat of massive physical harm is omnipresent.

Ah, but the judge responds that the police did not beat the defendant.  He collapsed unscathed.  So the apparent answer is that a defendant must refuse to submit, suffer the harm ranging from a damn good beating to death, and then assert his constitutional rights in the face of perjurious police denials in the hope of being in that 3% that prevails.  Smart choice, right?

I applaud the ruling in Craighead, that a custodial interrogation can happen inside the defendant’s home.  I would applaud it a whole lot more if the court had held that the fact that it occurred within the defendant’s home was utterly irrelevant to the inquiry, which was solely focused on whether the defendant believed that he could terminate the interrogation at any time. 

Of course, no one believes that either, making it another of those legal fictions that courts love to fall back on in derogation of the laws of physics and human nature.