The agents approached Duane Johnson, a security guard at the courthouse, and asked if he would be willing to assist them in an investigation of the bombing at the State Court Building in Des Moines, Iowa. He asked if they were holding him as a suspect, to which they responded they were not. They explained that since he reported the suspicious-looking package outside the federal judge's chambers, he was a hero. The evacuation of the building saved dozens of lives, even though two policemen from the bomb squad were killed when the timing mechanism set the bomb off before they were able to diffuse it.

 Johnson was told he was a hero, and that they would like him to tell his story" on tape, for training purposes. After all, had it not been for Johnson's prior training as a police officer, he may never have noticed anything peculiar about the package on his way to the men's room. He agreed to the interview, and even though he had retained counsel to represent him, he did not notify his attorney about accompanying the agents.

 Johnson was driven out to an office park on the outskirts of town. Driving past a lake with three fountains, the van rolled to a stop in front of a four story building with gold-tinted windows. The lobby of the building was plush. The receptionist escorted the three to a third floor conference room with a view of the lake. It was an incredibly pleasant environment to work, he thought. Classical jazz music was being piped in over the Muzak speakers. The receptionist came back and offered the three coffee and doughnuts. She told them Stephanie was on her way up to tape the interview.

 When Stephanie arrived, Johnson noticed how elegantly she was dressed, in civilian clothes, and how very cordial and gracious she was with them. She set up the audio-visual equipment, and proceeded to give instructions. Surely, Johnson thought to himself, this couldn't be where the SBI interrogates suspects. He had initially worried about whether this was deception, or whether they really wanted his help in conducting a training video. He now concluded they were being truthful with him.

 "Okay, Mr. Johnson," Stephanie began. "We'll have you tell the whole story of how you saved dozens of lives. But first, let's do a 'mock interrogation.' You're a former auxiliary police officer, aren't you?"

 "Yes, I was. In Kingsford, Michigan," he replied. Not certain where she was going with the interview, he asked, "Are you taping this already?"

 "Oh, yes, to get some background for the agents who will be trained from this video," she responded. "But we'll rewind and start over. Did you ever accompany an officer who made an arrest?" Johnson replied that he had.

"Good, then you know the Miranda procedures. What we're going to do is ask that you pose as a criminal suspect, and I will ask questions while Agent Smith controls the camera. Sit here across from me, and when Agent Smith finishes rewinding the tape, we'll get started." She reached down into her brief case and pulled out some papers, then exclaimed, "Isn't this exciting?! I feel so fortunate to do this video with a hero like yourself!"

Agent Smith said he was ready to start the recording. Stephanie told Johnson to just act naturally, so they wouldn't have to do multiple "takes," and if he had any doubts about how to respond, to just "take a cue" from her questions, and respond like a suspect who had something to hide. The other agents laughed, and Johnson laughed with them. He agreed. The camera was started, and Stephanie began by handing one of the papers to Mr. Johnson. After perfunctorily stating the date, time and location of the taping, she began questioning Duane Johnson.

"Mr. Johnson, do you know what the form is in front of you?" she began.

"Yes. It's a waiver of Miranda rights," he answered, as solemnly as possible.

"Do you freely consent to this interrogation, and do you voluntarily relinquish your right to have counsel present during the interrogation?" she continued.

 Johnson looked up at Smith, who was controlling the camera. Smith nodded, then Johnson responded to her question, "Yes Ma'am, I am giving up my right to remain silent and the right to have counsel present, and I am doing so freely." He then signed the form.

 The "interrogation" continued for about three hours, with Agent Jones stopping them about halfway through, to see if they wanted a break. Johnson declined, stating that he just "just want[ed] to get this over with," so Stephanie continued the questioning. She kept re-questioning, then focused on what she told him sounded like "inconsistencies" in his story. After she discovered that while he was in Michigan he once attended a parade of the Militia of Northern Michigan, she kept coming back to that, and tried to draw a connection to the bombing in Des Moines.

"I'm sorry, Stephanie," he said, sounding frustrated, but those guys had nothing to do with the bomb at the courthouse. Now I'm getting tired, and would like to do the narrative about bomb-detecting techniques."

When she persisted in continuing the interrogation, Johnson became highly agitated and exclaimed, "You guys have tricked me. This is a set up! I want my lawyer, now!"

"Okay," Agent Smith responded. "This interrogation is over. No further questions will be asked with out presence of defense counsel, in keeping with department procedures." Then after turning off the camera, Agent Smith volunteered, "That was a great performance! You almost had us fooled, thinking you actually wanted your lawyer."

"I do, and you're not fooled," he angrily responded. "His name is F. Lee Bailey, and his number is 555-2298. And I want to be taken back to my car, right now!"

"Mr. Johnson, I'm sorry, but your car has been impounded and is in SBI custody. Your house has been sealed off for preservation of evidence, and a search warrant was ordered by Agent Jones nearly two hours ago, when he went to get coffee," Stephanie explained. She continued, "We will try to make you as comfortable while you await your lawyer's arrival, but in the meantime you are under arrest. You have the right to remain silent. If you give up that right, anything you say can and will be held against you in a court of law. You have the right to an attorney. If you cannot afford one, a court-appointed attorney will be assigned to represent you. Do you understand your rights?"

"Yes, now get me my attorney on the phone now!" he replied. He had been duped, and fell for it.

With no other suspects, but still no evidence of bomb-making at Johnson's residence or in his car, the SBI concluded that Johnson must have had an accomplice at whose home he manufactured the bomb. They charged Johnson the next day with conspiracy to commit murder, willfully damaging State property, and two counts of felony murder.

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At trial the defense moves, inter alia, to exclude the entire videotaped "confession," due to (1) the lies told by the SBI agents, and also because of the deception, (2) that the defendant did not voluntarily relinquish his Miranda rights. Alternatively, if the Miranda warnings were ineffective, then defense counsel stipulates (3) that any statements made during the course of the custodial interrogation are inadmissible.

The prosecution objects to each of the motions, arguing that with respect to (1), the lies related to a matter intrinsic to the case; with respect to (2), the defendant not only voluntarily waived Miranda by signing, but he also explained the rights he was giving up to the interrogating officer; and alternatively, with respect to (3) the State relies on State v. Burt James Smith, an Iowa Supreme Court case decided in 1996 [546 N.W. 2d 916], to show that this was not a "custodial" interrogation to which Miranda applied, since Johnson was free to leave, and the "reasonable person would not have believed himself to be in custody."

You are the judge in an Iowa Superior Court. How do you rule on the three motions, and why?

Submitted by Jeff Morris
Wake Forest University

Answer

(1) Generally, police are allowed to deceive suspects they are questioning regarding the evidence that the police have against the suspect as long as the evidence is not coupled with some promise or representation in regard to the advantage to be gained by the confession or guilty plea.  This type of deception will not render the confession involuntary. 

Additionally, Police officer's false assurance that defendant was not in danger of prosecution by virtue of defendant's statements at state court trial of another person was not so coercive as to render defendant's statements involuntary. U.S. v. Byram, 145 F.3d 405 (1st Cir. 1998); HOWEVER, Defendant's statements to federal agent were involuntary and therefore inadmissible, where agent repeatedly told defendant he was not a suspect and would not be arrested, when in fact agent had arrest warrant in his possession and intended to arrest defendant upon completion of interview. U.S.C.A. Const. Amend. 5. U.S. v. Knowles, 2 F. Supp. 2d 1135 (E.D. Wis. 1998).   The scenario above seems to be very similar to the situation in Knowles.

(2) The waiver of Miranda rights must be made knowingly to be valid.  In the above scenario the agents told the suspect that he was not really waiving his Miranda rights.  The agents claimed that they were only having a "mock" interrogation.  The operative question is not whether or not the suspect knew what a Miranda waiver was as the facts try to trick you into thinking, the issue is whether the suspect actually knew he was waiving his rights.  The facts indicate he did not.  This is evidenced by the fact that the suspect demanded his lawyer as soon as he realized he was being interrogated.  The police cannot use this type trickery to get the suspect to waive his Miranda rights because it makes the waiver unknowing and invalid.

(3) In examining manner in which defendant was interviewed by law enforcement officials, for purpose of determining whether defendant was in custody during such interview and thus entitled to invoke constitutional privilege against self-incrimination, factor of particular significance is number of law enforcement officials taking part in interview process.  Court must consider whether style of questioning was confrontational and aggressive on the one hand, or whether circumstances seemed more relaxed and investigatory in nature on the other.  Additionally, factors to be considered include: language used to summon prisoner; purpose, place and manner of interrogation; extent to which prisoner is confronted with evidence of his guilt; and whether prisoner is free to leave place of questioning.  State v. Smith