Detectives use the tactic all the time: Call a suspect and ask him to drive to the station for an informal talk. The detectives get to ask their questions without having to warn the suspect of the right to remain silent.
But in Montgomery County, they’re pushing things too far, according to a judge who delivered a rare rebuke from the bench as he tossed out a confession in a rape case. Circuit Court Judge Eric M. Johnson ruled that police allowed a casual questioning to turn into a formal custodial interview that required the suspect to be read his rights, and he wasn’t.
“A system of subterfuge has developed in the law enforcement community with respect to interrogation techniques,” said Johnson, who in his ruling did not name other cases in which he thinks police have crossed a line.
What made the ruling noteworthy is that Johnson is a former Montgomery police officer who chats regularly with detectives and commanders — in courthouse hallways, in his chambers, in the middle of the night when they need to get a search warrant signed. But in the rape case, he aimed to make a broad point about constitutional protections.
“This message is sent,” he said from the bench last month.
In the wake of the ruling, the suspect was released from jail Thursday on the condition that he stay away from his teenage daughter, whom he’d admitted to fondling and having sex with over a three-year period when she was 11 to 14 years old, according to court records.
Prosecutors — who said the detectives acted appropriately — have moved to try to get Johnson’s ruling reversed by an appeals court, which could save the rape case and blunt Johnson’s ruling from spreading to other criminal cases. Police said the ruling should be reversed, and they worry that if more judges adopt Johnson’s thinking, it would limit what they see as a reasonable and valuable tool.
“I have no problem with what the detectives did,” said Montgomery Police Chief J. Thomas Manger. “I have confidence in my detectives as they work these cases.”
Local defense attorneys have mixed reactions to the ruling. Some played it down; others called it courageous and overdue.
“Detectives come as close to the line as they can,” said defense attorney David Felsen, “and in this case Judge Johnson said they crossed it.”
“It could be a huge benefit to us,” added Andrew Jezic, co-author of the book “Maryland Law of Confessions.”
At issue in the rape case was a legal battle prosecutors and defense attorneys often wage before cases ever get to juries: Was the suspect in “police custody”?
The battles typically turn on specific details: Did the suspect drive to the station? Was he ever handcuffed? Were detectives accommodating or belligerent? Was the suspect told he was free to leave? Was he allowed to go home?
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Courts have determined that once a “reasonable person” believes he cannot leave, he is susceptible to intimidation — even when detectives are acting calm and unthreatening. At that point, for the interrogation to be admissible at trial, detectives generally must advise the suspect of his rights to remain silent and to speak to an attorney — a process known as giving suspects their Miranda rights.