If you’re writing about crime, it’s a good idea to know something about the law. There is nothing more distracting than a writer who veers off the plot to conceal his or her ignorance. Besides, you don’t want to get it wrong in print. And, perhaps most important, you could be missing juicy opportunities to ramp up conflict. With these thoughts in mind, let’s examine the case of State vs. Duffy and Legs.
Duffy, a petty criminal, incurred the wrath of a girlfriend, so she calls in an anonymous tip stating he’s engaged in crime with Legs, a known drug kingpin.
Officer John wants to bring Duffy and Legs to justice, but one anonymous tip is not enough to arrest someone or search his or her residence. He needs to corroborate it, so he’ll seek more information. Duffy has no legal experience, but Legs has been in and out of prison, so Officer John identifies Duffy as the person most likely to divulge evidence.
Officer John visits Duffy’s apartment. He doesn’t need a search warrant if Duffy consents to a search. Duffy is scared and doesn’t want to get into trouble; he wants to please Officer John, so he consents. Anything Officer John finds as the result of the search (to which Duffy consented) is admissible. Indeed, he finds a brown paper bag full of a white powdery substance.
Officer John, who went to the FBI interrogation school, knows his best chance of getting incriminating statements from Duffy is to approach him in a non-confrontational manner.
The officer and Duffy are standing side by side staring at the open brown bag, and Officer John says: “Can you help me clear up some questions about this stuff?” Duffy responds with something incriminating, such as “I was just holding the drugs for my friend Legs.”
Most people are familiar with Miranda warnings (the right to remain silent, the right to an attorney, etc.), but not everyone understands their importance. When a suspect is subject to “custodial interrogation,” he must receive Miranda rights prior to interrogation, the series of questions or statements designed to elicit a response. “Custody” is a restriction of freedom of movement, such as an arrest. If a suspect can walk away from the police interrogation without fear of arrest, then he is not in custody. A Miranda violation, such as if he asserts his rights to an attorney or to remain silent but the police continue to question him, will result in the suppression of an illegally obtained statement, meaning the evidence will not be admitted at trial. However, the case will not be automatically dismissed, provided that other legally obtained evidence supports the charges.
Since Duffy is not in custody, he is merely a person of interest, and the Miranda warning is not needed. His statement is admissible, and he is arrested. Officer John locks up Duffy and drives over to Legs’ house. When Legs opens his door and finds the officer on his porch, Legs steps out and closes the door behind him – quickly. Legs knows his rights: If Officer John sees the mountain of cocaine on his kitchen table, the “plain view” exception to the search warrant requirement will allow the police officer to enter the house and seize the drugs as evidence to be admitted against him at trial.
Legs also knows he has the right to remain silent, so he refuses to talk to Officer John. As that action is inadmissible as evidence, if Madame Prosecutor comments upon it in front of the jury, the case will be dismissed. So Legs goes back inside and slams the door shut in Officer John’s face.
The officer needs more evidence, but he needs a search warrant to gain access to Legs’ home. He types up an affidavit setting out his evidence and submits it to Judge Friendly, who John knows is likely to rubberstamp his request. If Officer John lies in the affidavit, the evidence obtained in the subsequent search may be suppressed. Maybe Officer John doesn’t care; maybe he’s squeezing Duffy, maneuvering him into testifying against Legs at the trial. Or maybe Officer John is straight and true. It’s your story, you decide.
“Probable cause” is defined as “a reasonable amount of suspicion, supported by circumstances sufficiently strong to justify a prudent and cautious person’s belief that certain facts are probably true.” Officer John goes back to Legs’ apartment with a search warrant and finds the coke. Although he has no arrest warrant, having caught Legs committing a felony, the officer now has probable cause to arrest him on the spot for dealing drugs.
Having now officially been charged with a crime, Legs and Duffy are brought before the court as defendants. At an arraignment, they are advised of the charges or allegations against them. Legs pleads not guilty and demands a court-appointed attorney, but Duffy is scared and tearfully throws himself on the mercy of the court. If Duffy tries to plead guilty without first speaking to an attorney, the judge will likely not accept his plea, knowing that Duffy will likely change his mind later and be allowed to withdraw his guilty plea.
The defendant is entitled to “discovery” of the prosecution’s evidence before trial, including any “exculpatory” evidence that would show he is not guilty. Unbeknownst to him, Duffy’s girlfriend, the original tipster, has changed allegiance and is now friendly with Legs. She provides a statement to Officer John, claiming that she knew all along that the drugs belonged to Duffy and that Legs was set up. But Officer John forgot to provide that information to Legs’ attorney, and Legs was convicted.
A few months later, Legs’ attorney finds out the discovery was not provided, so he files a motion to set aside the verdict based upon prosecutorial misconduct. The judge concludes that Officer John’s secreting of the exculpatory evidence was willful and, having barred a new trial, Legs goes free.
Know your state
Federal law is slightly different from state law, which varies from state to state. With some diligence, you can learn the rules, statutes and case law, which are enshrined in books available at public law libraries. Ask the librarian for help. Law librarians frequently have law degrees as well as library science degrees. Also check your local court system’s website for a legal research engine.
Get hands on
Ask around. You may find a hungry young attorney who will share his or her knowledge in exchange for food or beer. Also, go watch a criminal trial. You, a member of the public, have the right to be there.
Keenan Powell received a Juris Doctorate from McGeorge School of Law in 1982 and was admitted to the State of Alaska Bar in 1983.
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