Suppose an officer is investigating a report of drug sales at a home. The officer sends an informant in to make a controlled buy from the suspected dealer. The informant comes out of the house with drugs and a report that the dealer has a large additional quantity of illicit substances remaining in the house. The officer decides that it would be a good time to bust the dealer, so the officer approaches the home, knocks on the door, and the dealer answers. The officer explains the situation and says, “I’m asking for consent to search your house. If you don’t consent, I’ll go apply for a search warrant because I think I have probable cause. So, can I search?” The dealer says yes, but later argues that his consent was not voluntary and that he merely acquiesced given the threat of the warrant. What’s the law? Continue reading
Tag Archives: voluntariness
When an Officer Threatens to Seek a Search Warrant if a Suspect Doesn’t Consent to a Search, Is the Suspect’s Subsequent Consent Rendered Involuntary?
When an Arrestee “Brings” Drugs to the Jail
When a person is arrested while in possession of drugs and is taken to the jail in handcuffs, may the person properly be convicted of possessing drugs in a confinement facility? The question has divided courts across the country. Last week, a majority of the court of appeals concluded that the answer is yes. State v. Barnes, __ N.C. App. __ (2013) (Ervin, J.) (McGee, J., dissenting).
Facts. The defendant was arrested for DWI, and while he was being processed at the jail, a bag containing 4.05 grams of marijuana fell out of his pants. He was eventually convicted of, inter alia, possession of marijuana at a confinement facility in violation of G.S. 90-95(e)(9).
Mens rea issue. The court first addressed the defendant’s argument that there was insufficient evidence to convict him, as there was no evidence that he intended to bring the drugs to a confinement facility. The court of appeals disagreed, unanimously on this issue, ruling that the offense is a general intent crime, requiring only that the defendant knowingly possessed drugs at a confinement facility, which he did.
Voluntariness issue. The issue that divided the court was the defendant’s argument that he did not commit the offense voluntarily, as he was brought to the jail under arrest. Although agreeing that criminal liability generally requires a voluntary act, the majority nonetheless rejected the claim. It noted that the statutory language defining the offense says nothing about voluntariness, and that the apparent purpose of the statute – to minimize drugs in jails – would be best served by giving it broad application. But the heart of the opinion stated that a majority of other jurisdictions (7 out of 10 cited in the opinion) have upheld convictions for similar crimes under similar circumstances, and endorsed the reasoning of many of those courts that “a defendant who is arrested with controlled substances in his possession has options other than simply taking the controlled substances with him into the confinement facility. For example, the defendant always has an opportunity to disclose the existence of these controlled substances to the arresting officer before he ever reaches the jail.”
Dissent. Judge McGee dissented on the voluntariness issue, reasoning that “[t]he officer took Defendant to the confinement facility. Defendant had no ability to choose his own course of action regarding his location,” and so did not voluntarily possess the drugs at the jail. As to the majority’s suggestion that the defendant had the option of disclosing the presence of the drugs before reaching the jail, Judge McGee concluded that requiring the defendant to do so would violate his Fifth Amendment privilege against self-incrimination. (The majority stated in a footnote that the defendant did not raise the Fifth Amendment issue but that, in any event, the dilemma was of the defendant’s own making and did not involve testimony under coercion.)
Further review. I couldn’t find any indication on the supreme court’s electronic docket that the defendant is seeking further review based on the dissent, but that would be a natural next step. So, stay tuned for further developments.
Side issue regarding conviction for simple possession. It’s worth mentioning briefly that the defendant argued, the State conceded, and the court of appeals ruled that the defendant should not have been convicted of both the confinement facility offense and the lesser-included offense of simple possession.
Overstating Possible Punishment and the (In)voluntary Nature of the Plea — Part II
In a blog post here, I wrote about overstating possible punishment and the voluntary nature of a plea. In that post, I discussed the dangers of overstating the possible maximum sentence with respect to consecutive sentences and recent changes to post-release supervision. That post prompted questions about a related issue. Here’s the set up: At a plea proceeding in North Carolina, it’s my understanding that the trial judge typically advises a defendant of the maximum sentence that could be imposed by going “all the way up and all the way over” on the sentencing grid. This results in the judge advising the defendant of a maximum associated with an aggravated sentence at prior record level (PRL) VI. And now the questions: What if the State hasn’t given notice of any aggravating factors? What if the defendant has no PRL points? In these scenarios has the trial judge overstated the maximum possible sentence and opened the plea up to a challenge? Since my prior post didn’t address this issue, I’ll do that now.
G.S. 15A-1022(a)(6) provides that when taking a plea, the trial judge must inform the defendant of “the maximum possible sentence on the charge for the class of offense for which the defendant is being sentenced” (emphasis added). At least two unpublished decisions have held that “nothing in G.S. § 15A-1022(a)(6) requires the trial court to adjust the ‘maximum possible sentence’ based on a particular defendant’s projected prior record level.” State v. Felton, 167 N.C. App. 807 (2005) (unpublished); see also State v. Hayes, 171 N.C. App. 515 (2005) (unpublished) (“Contrary to defendant’s assertion, nothing in N.C. Gen. Stat. § 15A-1022(a)(6) requires a trial court to tailor the information regarding the maximum and minimum possible sentences for an offense by inquiring into each defendant’s projected prior record level.”). One of those cases reasoned: “Such a requirement would conflict with the procedural framework established for guilty pleas under Article 58, since at the time of the plea colloquy . . . the defendant’s prior record level is indeterminate.” Hayes, 171 N.C. App. 515. The fact that both cases are unpublished lessens their value. Additionally, both relied in part on State v. Byrd, 164 N.C. App. 522 (2004) (Byrd I), a pre-Blakely case that made the cited statement in the context of wrongly deciding a Blakely issue. State v. Byrd, 175 N.C. App. 247 (2005) (so holding on a post-Blakely appeal after a new sentencing hearing was held following Bryd I). On the other hand, amplifying the holding of those cases is G.S. 15A-1340.11(7), which provides that PRL is determined at sentencing, not at the plea proceeding. As my colleague Jamie (“Sentencing Guru”) Markham noted to me, if there is a time lag between the plea and the sentence and the defendant accrues another conviction in that time period, that conviction can count for PRL purposes under State v. Pritchard, 186 N.C. App. 128 (2007). If that happens and the judge has under-advised as to sentence, error occurs. State v. Reynolds, __ N.C. App. __, 721 S.E.2d 333, 334 (2012) (the defendant’s plea was not constitutionally valid where the trial judge misinformed the defendant of the maximum sentence he would receive; the trial court told the defendant that the maximum possible sentence would be 168 months’ imprisonment when the maximum sentence (and the maximum ultimately imposed) was 171 months; the court rejected the State’s argument that the defendant was not prejudiced by this error).
What about the “all the way up” (and into the aggravated range) part of the typical advisement? If the State hasn’t given notice of any aggravating factors the defendant cannot—as a matter of law—receive an aggravated sentence. See G.S. 15A-1340.16(a6) (State must give notice of aggravating factors); State v. Mackey, __ N.C. App. __, 708 S.E.2d 719, 722 (2011) (error to impose an aggravated range sentence when the State failed to provide proper written notice). On this issue, arguments can be made both ways. On the one hand, it might be argued that by analogy to the PRL cases, nothing in G.S. 15A-1022(a)(6) requires the trial court to adjust the “maximum possible sentence” based on a particular defendant’s situation. On the other hand, that argument is undercut by the fact that unlike PRL which is “indeterminate” at the time of plea, whether a defendant can receive an aggravated sentence isn’t entirely indeterminate; if the State failed to give notice, an aggravated sentence can’t be imposed. If this latter argument carries the day with respect to a defendant who hasn’t been given notice of aggravating factors, the maximum possible sentence is at the top of the presumptive range.
But that’s not all! There is a constitutional overlay to this issue. By entering a guilty plea the defendant waives several constitutional rights. To be valid, the defendant’s waiver must be knowing, voluntary, and intelligent. Regardless of how the statutory interpretation issue plays out, a defendant still can argue that when the judge over-advised him or her of the consequences of the plea using a “generic” maximum versus a “defendant-specific” maximum this undercut the knowing, voluntary, and intelligent nature of the plea. As I discussed in my prior post, if the overstatement is significant enough and if the defendant suffers prejudice as a result, there may be a basis to invalidate the plea. See also LaFave, Israel, King & Kerr, 5 Criminal Procedure 830 (“it would seem that a significant overstatement of the maximum possible punishment would be objectionable whenever it skewed defendant’s understanding of the value of his plea bargain”).
I have not done exhaustive research on the issue but my work hasn’t turned up good N.C. authority that answers this question directly, either on the statutory interpretation issue or the constitutional issue. If you know of any law on point, please post a comment.
In a post here discussing application of post-release supervision periods to multiple sentences Jamie raised the question of whether over-advising a defendant as to the maximum possible sentence associated with pending charges can undercut the knowing, voluntary and intelligent nature of a plea. Let’s recap the issue. Suppose a defendant is contemplating pleading guilty to two Class C felony reportable sexual assault charges committed after December 1, 2011. The highest possible minimum for each offense is 182 months. The corresponding maximum is 279 months. Built into this maximum is a 60-month period of post-release supervision. Suppose that when advising the defendant as to the maximum possible sentence, accounting for consecutive sentences, the trial judge doubles 279, getting a maximum of 558 months. The judge so advises the defendant and the defendant pleads guilty and is sentenced.
As Jamie’s post clarifies, the judge’s advisement overstated the total maximum sentence that could be imposed for the consecutive sentences. If the sentences run consecutively, only one post-release supervision period is imposed. Because our defendant has two offenses, one 60-month post-release period must be subtracted from the maximum. This means that the maximum sentence is 558 minus 60 months, or 498 months. Assume now that the defendant files a motion for appropriate relief (MAR). He alleges that his plea was not knowing, voluntary, and intelligent because the judge overstated the maximum possible sentence and his lawyer never corrected the error. He further alleges that had he known the correct maximum, he would not have pleaded guilty. How does our defendant fare?
Case law suggests that a dramatic overstatement as to the maximum possible sentence can invalidate a plea. In Manley v. United States, 588 F.2d 79 (4th Cir. 1978), for example, the defendant was charged with six drug offenses and decided to enter a plea of nolo contendere to all counts. There was no plea bargain. At the plea proceeding, the trial court accurately told the defendant that the maximum punishment that could be imposed on each count was 15 years in prison, a fine not to exceed $25,000, or both, along with a special parole term of at least 3 years. The court further explained that because Manley faced six charges, the maximum term to which he might be sentenced would be 90 years plus $150,000 in fines. This latter advisement was incorrect. Under the relevant law, a number of the counts had to be merged and as a result the maximum sentence he could have received if the sentences ran consecutively was 60 years. The judge thus overstated the maximum by thirty years. The judge went on to accept Manley’s plea and sentence him to twelve years’ in prison with three years of special parole.
Manley later moved to have his sentence vacated arguing that because he was misinformed about the maximum sentence, his plea was not knowing, voluntary, and intelligent. The Fourth Circuit began by acknowledging that for a plea to be knowing, voluntary, and intelligent, a defendant “must have ‘a complete understanding of the possible sentence.’” Id. at 81. However, it noted, this rule did not “establish a per se rule that every error in sentence advice will permit the accused later to upset his guilty plea.” Id. For example, the court stated, if Manley’s lawyer correctly informed him of the maximum sentence, the judge’s error would not invalidate the plea. Id. Thus, the court determined, the “central question” is whether Manley “actually knew” what sentence might be imposed. Id. at 82. On this point, the court determined that a remand was required:
[B]ecause Manley’s counsel stated only that he was satisfied his client understood the nature of the charges and the consequences of the pleas, it is possible that Manley’s counsel had correctly advised his client of the sentencing possibilities, and by that provided the requisite understanding, or Manley may have been otherwise so advised. Accordingly, we vacate the judgment . . . and remand for further proceedings to determine whether Manley was informed of the maximum sentence that might have been imposed. If Manley were so informed, it follows that, despite the misapprehensions of court and prosecutor, his plea as to this point was in fact voluntary and intelligent. If the court below should find that he was not so informed, Manley’s conviction must be vacated and he should be allowed to plead anew. A thirty-year error in sentence advice cannot, we think, satisfy the requirement . . . that the defendant have “a complete understanding of the possible sentence.”
Id. The court made clear if Manley did not actually know the correct maximum, the magnitude of the error in this case would invalidate the plea. See also Hammond v. United States, 528 F.2d 15 (4th Cir. 1975) (maximum overstated by 45 years). But what about a lesser error? Elsewhere, the court suggested that an error as to “a few years” with respect to a “long term” may not invalidate a plea. Manley, 588 F.2d at 82. It’s noteworthy that Manley stated that its rule would apply regardless of whether or not a plea agreement was in place. Id. at 81 (“[T]he requirement that a guilty plea be voluntary and intelligent applies to all guilty pleas, not merely those in which a plea bargain has been struck.”).
In the example above the judge overstated the maximum by five years. That’s well short of the thirty years at issue in Manley but it’s not an insignificant period of time. In the end, regardless of whether a defendant can invalidate a plea on this basis, the best practice for the trial judge is to correctly advise the defendant with respect to the maximum possible sentence. This may mean some fancy calculations when the charges have different post-release supervision periods but I don’t see a way to avoid this difficulty. If you think otherwise, let me know.
The Law of Interrogation
In connection with some teaching that I have coming up, I’ve prepared a short outline summarizing the law of interrogation. It’s available as a PDF here. It covers voluntariness, Miranda, and the Sixth Amendment right to counsel, plus the recording requirements of G.S. 15A-211, including the statutory amendments that took effect on December 1. I wrote it with judges and lawyers in mind, but I tried to keep it free of mumbo jumbo so that officers would also be able to use it. As always, I welcome your feedback.
An involuntary confession can’t be used against a defendant at trial, not even to impeach him if he testifies. See, e.g., Mincey v. Arizona, 437 U.S. 385 (1978). Whether a confession is voluntary is determined by examining the totality of the circumstances, see, e.g., Withrow v. Williams, 507 U.S. 680 (1993), and asking whether “the confession [is] the product of an essentially free and unconstrained choice by its maker,” Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (internal quotation marks and citations omitted). Factors that may be relevant to this determination include
whether [the] defendant was in custody, whether he was deceived, whether his Miranda rights were honored, whether he was held incommunicado, the length of the interrogation, whether there were physical threats or shows of violence, whether promises were made to obtain the confession, the familiarity of the declarant with the criminal justice system, and the mental condition of the declarant.
State v. Hyde, 352 N.C. 37 (2000) (internal quotation marks and citations omitted). None of these factors alone is dispositive. Thus, for example, “[a] promise of leniency renders a confession involuntary only if the confession is so connected with the inducement as to be the consequence of it.” State v. Pressley, 266 N.C. 663 (1966). Indeed, although police interrogations routinely contain suggestions that a truthful confession may be viewed favorably by the authorities, relatively few North Carolina cases have reversed criminal convictions as a result of such representations.
That brings us to State v. Bordeaux, a remarkable case decided by the court of appeals last month. The defendant was arrested, read his Miranda rights, and questioned for two hours in connection with a robbery. The videotaped interrogation culminated in a confession, but the trial judge ruled that the confession was coerced. On the state’s interlocutory appeal, the court of appeals affirmed. It found that the officers interrogating the defendant (1) falsely suggested that he was being investigated for a murder as well as the robbery, and (2) indicated that a confession would help him with “the judge,” thereby overbearing his will. The court cited State v. Fuqua, 269 N.C. 223 (1967), in which a confession was declared involuntary because a police officer told a defendant that “if he wanted to talk to me then I would be able to testify that he talked to me and was cooperative,” creating a hope of leniency.
It’s possible to quibble about the details of Bordeaux. For example, after initially suggesting that a confession might cause a judge to view the defendant favorably, one of the officers admitted “I don’t know what the [j]udge will say,” arguably undermining the impact of the inducement. On the other hand, the court of appeals didn’t remark on several striking aspects of the interrogation, such as the officers’ explicit threat to bring additional charges if they determined that the defendant was an “ass____,” or one officer’s statement that “if you want any assistance . . . any chance to live a normal life when this is over,” the defendant should confess.
Overall, though, it is neither the legal reasoning nor the outcome of Bordeaux that I find most noteworthy. It is the critical impact of the fact that the interrogation was videotaped. Absent a videotape, the facts about the interrogation would likely come out through the testimony of the officers at a suppression hearing. I have no reason to doubt that the officers would be anything other than completely honest, but a detached, after-the-fact summary is inherently incapable of capturing the feeling of a police interrogation. Imagine this case, presented as follows at a hearing:
Q: Did you make any threats or promises to the defendant?
A. No. I told him if he was honest, a judge might view that favorably, but that I didn’t know for sure what a judge would do.
Q. Did you offer to help him in any way if he confessed?
A. Only that I would testify honestly that he surrendered voluntarily to us and admitted what he did.
Q. Did you make any misrepresentations to him during questioning?
A. At one point, we told him that his answers to our questions tied him to some people we were investigating for murder. But we never told him we would charge him with murder. Actually, the whole point was to get him away from some lies he was telling us and to encourage him to tell the truth.
On those facts, I suspect that the trial judge would have denied the motion to suppress, and that ruling would have been affirmed on appeal. I’ll be interested to see whether this ruling is a harbinger of things to come as more and more interrogations are recorded.
To be valid, consent to search must be voluntary. Is consent voluntary when given after an officer thrreatens to obtain a search warrant if consent is withheld?
Generally, yes. See State v. Kuegel, 195 N.C. App. 310 (2009) (consent to search was given voluntarily even though officer said that if consent was denied he “would leave two detectives at the residence and apply for a search warrant”); State v. Fincher, 309 N.C. 1 (1983) (the defendant consented voluntarily where he “was told that although he did not have to give permission to search, if he refused the officers would obtain a search warrant and conduct a search”); United States v. Comstock, 531 F.3d 667 (8th Cir. 2008) (finding that under the totality of the circumstances, the defendant voluntarily consented even though “the officers apparently stated that if [he] refused to consent to the search they would obtain a search warrant, during which time [he] would continue to be detained in handcuffs for an additional two hours”); United States v. Garcia, 890 F.2d 355 (11th Cir. 1989) (“The agents simply told Garcia that they would secure the house and attempt to obtain a search warrant if he refused consent. We find nothing in this statement which would indicate that the agents were trying to do anything more than lawfully request Garcia’s permission to search.”).
Of course, voluntariness is determined under the totality of the circumstances, and there is some out-of-state authority suggesting that a threat to obtain a search warrant is a factor weighing against voluntariness, even if it is not alone sufficient to tip the scales. United States v. Kim, 25 F.3d 1426 (9th Cir. 1994) (when “officers claim that they could obtain a search warrant,” this is a factor that “militate[s] against . . . voluntariness”). This may be especially true if the officer making the threat has no basis for obtaining a warrant. United States v. White, 979 F.2d 539 (7th Cir.1992) (“Baseless threats to obtain a search warrant may render consent involuntary. When the expressed intention to obtain a warrant is genuine, however, and not merely a pretext to induce submission, it does not vitiate consent.”).
Of course, if an officer claims that he already has a search warrant, when in fact he does not, the situation is different. Bumper v. North Carolina, 391 U.S. 543 (1968), holds that the state’s obligation of proving voluntariness of consent “cannot be discharged by showing no more than acquiescence to a claim of lawful authority,” as when “consent” is given only after an officer falsely claims to have a warrant.
Package Deal Plea Bargains
The court of appeals decided State v. Salvetti this week. The case involves several interesting issues, but I want to focus on the court’s approval of “package deal” plea bargaining.
In Salvetti, the defendant and his wife were charged with abusing their son. The defendant entered into a plea bargain, under which he pled guilty to Class E felony child abuse in exchange for the dismissal of a charge of Class C felony child abuse. His wife entered into what appears to have been a similar arrangement. Subsequently, the defendant moved to withdraw his plea, alleging in part that he was innocent and that he entered into the plea bargain only because it was part of a package deal, i.e., because the state’s plea offer to his wife was contingent on the defendant pleading guilty as well. This, he asserted, amounted to “improper pressure” to plead guilty in violation of G.S. 15A-1021(b) and the Constitution. There’s some support for this argument in Bordenkircher v. Hayes, 434 U.S. 357, 365 n. 8 (1978), where the Court noted that a plea bargain involving leniency for a third person “might pose a greater danger of inducing a false guilty plea by skewing the assessment of the risks a defendant must consider.”
Back to Salvetti, the trial court denied the defendant’s motion to withdraw his plea, and the court of appeals affirmed. Here’s what it said, pretty much in its entirety:
Package plea deals offer leniency for a third party that are made contingent on the defendant pleading guilty. While North Carolina appellate courts have not directly addressed the issue of the voluntariness of package deal pleas, other jurisdictions both federal and state, have found they are not per se involuntary. See United States v. Mescual-Cruz, 387 F.3d 1, 7 (1st Cir. 2004); Howell v. State, 185 S.W.3d 319, 334 (Tenn. 2006)(concluding that a majority of jurisdictions have found package pleas are not invalid per se).
The Fourth Circuit has noted that package plea deals present a greater risk of inducing a false guilty plea by altering the defendant’s assessment of the attendant risks. [United States] v. Marrow, 914 F.2d 608, 613 (4th Cir. 1990). We hold that the prosecutor did not use improper pressure to induce defendant’s guilty plea, thus defendant’s argument is without merit.
The bottom line, obviously, is that the court approved the use of package deal plea bargains. But I still recommend the following, based on a review of the case cited by the court and a number of other cases on package deals.
- Package deals should be disclosed to the court. The overwhelming majority of courts considering package deals have required that they be disclosed to the judge taking the pleas. See, e.g., Mescual-Cruz, supra; Howell, supra; In re Ibarra, 666 P.2d 980 (Cal. 1983).
- The judge taking the pleas should be especially alert to any indication that any plea is the result of one defendant’s coercion of another. Some courts have required alterations to the plea colloquy in package deal cases in an attempt to sniff out coercion, see, e.g., Ibarra, supra, but most have simply encouraged judges to be particularly vigilant.
- Although courts have generally recognized that one defendant may properly “elect to sacrifice himself” for another, United States v. Carr, 80 F.3d 413 (10th Cir. 1996), the risk of an innocent defendant sacrificing himself for another appears to be greatest when the relationship between the defendants is very close — for example, parent and child — and the punishment to be avoided by the plea bargain is very severe — for example, the death penalty. Even in such circumstances, package deals probably are not per se invalid, but both prosecutors and judges should proceed with extra caution when the stakes are high and the defendants are close.