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Doubts About Police Custody Fracture 9th Circuit

SAN FRANCISCO (CN) - The case of a then-16-year-old high school student who confessed to killing his daughter at the end of a four-hour police interrogation has cracked a rift among Ninth Circuit judges over when police custody actually begins.

Circuit Judge William Fletcher strongly disapproved of his colleagues' decision not to rehear a habeas appeal filed by Jovan'z Smith, a Vallejo man serving 25 years to life for assaulting his 18-month-old daughter and causing her death.

The circuit judges disagree on whether Smith was in police custody during his interrogation, which would have required police to read him his Miranda rights.

Smith was taken to a police station on Dec. 14, 2007, two days after his daughter died. Detectives interrogated him in a small, windowless room for over four hours, according to California Court of Appeals and Ninth Circuit rulings.

After four hours of questioning, Smith confessed to killing his daughter by shoving baby wipes in her mouth in a moment of anger. He was later convicted of assault of a child causing death and sentenced to 25 years to life in prison.

At first, Smith told police he accidentally left baby wipes on the bed near his baby daughter. After turning his back to change the TV channel and turning back around, Smith said he saw his daughter suddenly "turning purple" and "throwing up blood."

Over the course of the four-hour interview, the officers had Smith take a lie detector test, which they told him he failed, and had his baby's maternal grandmother come to the station "to question and berate him," according to the ruling.

Twenty minutes after an officer told Smith "You can't leave this room lying, bro," Smith confessed, telling the officers that he shoved the baby wipes in his daughter's mouth because he was angry.

On appeal, Smith argued the trial court never should have allowed video evidence of the interrogation to be presented at trial because the interview took place while he was in police custody without having been read his Miranda rights.

The California Court of Appeals denied his appeal, ruling Smith was not "in custody" because he was told three times he was not under arrest and free to go.

Smith then filed a habeas petition in Federal Court which a magistrate judge denied, calling his petition a "close case" but ultimately finding the state appellate court did not contradict or unreasonably apply federal law.

In March 2015, a three-judge panel of the Ninth Circuit upheld the district court's decision. And on Thursday, the judges rejected a call for an en banc rehearing of the case - brought by the court itself - leading Circuit Judge William Fletcher to file a sharply worded dissent.

"A police officer cannot remove an interrogation from Miranda's reach simply by reciting magic words," Fletcher wrote. "We should have corrected the Court of Appeal's error. Smith's conviction, and many others, hang in the balance."

Police officers in California are trained to inform suspects they are "not under arrest," Fletcher stated. It's a tactic known as the Beheler admonishment, named after the 1983 U.S. Supreme Court case California v. Beheler which established that a suspect repeatedly told he is not under arrest is not "in custody" under Miranda.

"Beheler admonishments help police officers (falsely) convey to suspects that they are not under suspicion, thereby enhancing the effectiveness of 'soft' tactics, such as minimization, that induce confessions," Fletcher wrote.

Fletcher argued the Supreme Court has repeatedly held that judges should consider all circumstances surrounding an interrogation, including the interview's location, duration and statements made by police and suspects.

"In this case, virtually all of these factors lead to a conclusion that Smith was in 'custody' under Miranda," Fletcher wrote.

At one point during the interview, Smith asked police if he could leave after submitting to a lie detector test. One officer answered, "I don't know. Are you and Detective Mustard done talking," according to the ruling.

Fletcher said that answer clearly indicated Smith was not free to leave when he chose, but rather when the detective was done talking to him. The fact that the officer hastily added, "you understand you're not under arrest, okay," did not change anything, according to Fletcher.

He also said the state appellate court misstated the record by writing that Smith was told three times he was "free to go" when he was actually told he was "not under arrest" three times.

"By permitting Smith's conviction to stand, we effectively allow the police to remove unwarned confessions from Miranda's reach by reciting a few short words,'" Fletcher wrote.

Circuit Judges Consuelo Maria Callahan and Milan Smith disagreed with Fletcher's characterization of the appeals court's decision and concurred that an en banc rehearing was unnecessary in the case.

Writing for the panel, Callahan said the appeals court must adhere to the Antiterrorism and Effective Death Penalty Act of 1996, which says habeas petitions may only be granted when a state court contradicts or unreasonably applies federal law.

Callahan said the Supreme Court has repeatedly held that defendants are not in custody when officers inform them they are not under arrest and free to leave, and took issue with Fletcher's opinion that Smith's interrogation did not become custodial simply because the officers questioned his honesty, confronted him with evidence and promised him leniency.

"The dissent paints a picture of California police officers nefariously gaming the system by telling people that they are not under arrest," Callahan wrote. "But there is no better way to communicate that a person is not under arrest than by telling them."

Callahan called the case "close" except when viewed under the Antiterrorism and Effective Death Penalty Act.

But Fletcher said that had this case come to the appeals court on direct review, instead of as a habeas appeal, it would not be a close call at all. He also said he understands why his colleagues feel obligated to abide by the standard for granting habeas petitions as required under the act.

"It may be that the only way to put a stop to "Beheler-ing" as practiced by the police in California and as tolerated by the California state courts, will be to seek direct review by the United States Supreme Court," Fletcher concluded.

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