United States v. Williams, — F.3d —, 2016 WL 7046754 (9th Cir. Dec. 5, 2016): Eliciting of arrestee’s gang affiliation in uncounseled interrogation at county jail violated Miranda v. Arizona
(2:30 a.m., county jail, outside of holding cell) Deputy sheriff: So sorry to disturb you at this late hour, Mr. Gilton, but we at the county jail are committed to ensuring that your stay here is a pleasant one, free of midnight shankings and so forth. Are you by any chance a member of the Fillmore/Central Divisadero Playas gang? Mr. Gilton: “Yeah, I hang out there, put me where I’m from.”
Perhaps Mr. Gilton only intended by his answer to ensure that his stay at the county jail was indeed a pleasant one. But as it turned out, his admission to gang membership was used to support a RICO charge, in which his gang was identified as the “enterprise.” The district court agreed with Mr. Gilton’s argument that the elicitation of this incriminating statement without Miranda warnings violated his right to be free of compelled self-incrimination, and granted his motion to suppress the statement. The government appealed the suppression order under 18 U.S.C. 3731. The Ninth Circuit affirmed. Gang membership may be relevant to jail security issues, but it is also plainly incriminating in respect to RICO charges, other federal criminal charges, Sentencing Guidelines enhancements, state murder charges, et cetera. Under the objective totality-of-the-circumstances test applied by the Ninth Circuit, a reasonable officer would have known that his question was likely to elicit a response that would be incriminating. Because the test is an objective one, it did not matter that at the time of the interrogation Mr. Gilton had been charged with murder but not with any gang-related charge. And the Miranda exceptions that the government invoked were inapplicable. The “booking questions” exception – which normally covers such (generally) innocuous matters as name, address, height, weight, and eye color – did not apply to a question so likely to elicit incriminating information. And under the circumstances – the deputy “retrieved Gilton from a locked holding cell around 2:30 a.m.—hours after Gilton arrived at the jail” – there was no basis for invoking the “public safety” exception, which applies to “volatile situation[s]” involving possible threats. The Ninth Circuit thus affirmed the district court’s suppression order. (One judge dissented, arguing that both of the exceptions were applicable.)
Moral: When you sign up for the county jail loyalty program, you should check “yes” to feather pillows and the New York Times in the morning, and “no” to 2:30 a.m. uncounseled interrogations – but if you should forget the last part, Miranda may be there for you.
(Congratulations to Mark Stuart Goldrosen of San Francisco, California.)
(Dan Kaplan is an Assistant Federal Public Defender in Phoenix, Arizona.)