“The way of war is deception.” – Sun Tzu, The Art of War
It can be very frustrating for law enforcement investigating sex crimes against very young children: the victims often have great difficulty expressing what happened, and the calculating criminals are often careful to not leave behind clues leading back to them.
This week’s case is about balancing constitutional protections against police overreaching with the ability of law enforcement to protect young children from sexual predators.
Enter: Rita, the single mother of 3-year-old Micah; and, Steve, Rita’s boyfriend accused of having illegal sexual contact with Micah.
Rita was divorced from Micah’s father and was having difficulty meeting someone. As time passed and the bar became lower and lower, Steve came into her life. And he came into Micah’s life, too.
After some time, Rita picked up on strange behavior exhibited by Micah after spending time alone with Steve. Rita questioned young Micah and the responses she received alarmed her. Because of Steve’s instability, Rita didn’t dare question Steve directly. So she went to the Chautauqua County Sheriff’s Office, where she told investigators about her fears.
There were no photos, videos or tape that implicated Steve for what Rita knew in her gut what happened to her baby boy. The investigators decided that they were going to set up a “controlled call” between Rita and Steve.
The Controlled Call — 10:00 a.m.
STEVE: Hey, darlin’…What’s goin’ on?
RITA: I gotta talk to you about something.
STEVE: Okay. What?
RITA: Look, I just need you to listen to me, okay? I love you, and we are going to get through this.
STEVE: What are you talking about? You’re scaring me.
RITA: I know you are a good person and that you love me and Micah, and that you would never do anything to hurt us.
STEVE: Baby, I…
RITA: Steve, I really need you to listen. Micah told me what you did to him, and that it was not the first time, and…
STEVE: Rita, I’m not listening to this shit…
RITA: Steve, it’s okay. We are going to get you help. Micah is okay and he is young, and he is going to be…
STEVE: Listen! You shut your goddam mouth…are you alone?
RITA: Yes, I am alone. Of course, I am…
STEVE: You just shut up and listen! No one is going to believe that kid — my word against his. There’s no marks, nothing. We were just having fun. He needed a bath…
RITA: Micah said your clothes were off, too…
STEVE: I didn’t want to get my clothes wet…And that’s it. I don’t need help. I’m not talking about this anymore. Don’t mention it again. I won’t touch him anymore.
The script had been written for Rita by the investigators and was recorded with Rita’s permission. At no time during the call with Steve did Rita make a threat or a promise that would create a substantial risk that Steve might falsely incriminate himself.
The investigators called Steve a few days later and told him that they were following up on a complaint concerning Micah that they were about to close because it seemed like it was nothing. Steve voluntarily agreed to meet the investigators at the Sheriff’s Office and arranged for his own transportation to and from the interview. When Steve arrived, the investigators informed him that he was free to leave at anytime and he was not restrained. The door to the office he was in was left open at all times.
During the interview, the investigators confronted Steve about the statements he made in the controlled call and he admitted to giving answers that could prove he had committed a crime. Nevertheless, after the interview, Steve left the Sheriff’s Office on his own and he just went home.
A few days later, Steve was arrested and arraigned in criminal court. Steve pleaded, “Not Guilty.”
Steve’s lawyer tried to have the taped phone call suppressed and the statements that he made to the investigators about the call suppressed. The lawyer argued that the controlled call was coercive police tactic because Rita was acting as an agent of the police. Also, the lawyer argued that the statements Steve made to the investigators at the Sheriff’s office should be suppressed because he was in custody and he was not read his Miranda rights.
How the Judge Ruled:
The judge ruled that the phone call was illegal because of the police involvement and that the statements made to the investigators at the station were disallowed because Steve was legally in custody and should have been read his rights. The predator would basically have very little proof against him. BUT HOLD ON! The prosecution immediately appealed.
The Taped Call
The appeals court ruled that the County Court was wrong in suppressing Steve’s statements made to Rita during the controlled telephone call that was recorded by the police. “Police may generally engage in deception while investigating a crime”, and “deceptive police stratagems in securing a statement need not result in involuntariness without some showing that the deception was so fundamentally unfair as to deny due process or that a promise or threat was made that could induce a false confession.”
Although the appeals court agreed that the mother was acting as an agent of the police when she made the controlled call, they concluded that Rita did not make a threat or a promise that would create a risk that Steve might falsely incriminate himself. Therefore, the controlled call did not constitute an unconstitutionally coercive police tactic.
Was Steve in Custody While at the Station?
The appeals court said, NO; Steve was not in “custody” when he was being interviewed at the station. Although the investigators confronted Steve with the statements that he made during the controlled call, the fact that the questioning may have turned accusatory in nature did not render the interview custodial given the other circumstances present in this case: came to station voluntarily; office door open; left on his own.
The standard for assessing a suspect’s custodial status is whether a reasonable person innocent of any wrongdoing would have believed that they were not free to leave. The test here is not what Steve thought, but rather what a reasonable person, innocent of any crime, would have thought had they been in Steve’s position.
In this case, although Steve’s interview occurred at the Sheriff’s Office, that fact does not necessarily mean that he is to be considered in custody.
Steve does NOT get off on a technicality. Rita and the Sheriff’s office get justice for Micah.
Here is the case: