Main/Is it compelling circumstances when the police will have no choice but to arrest you (even though they haven't yet)?

In a recent [http://www.publications.ojd.state.or.us/A143278.pdf Court of Appeals case], the defendant lost an argument that the circumstances of the defendant's interrogation were sufficient to constitute compelling circumstances. Had the circumstances been compelling, the failure to read the defendant her Miranda warnings might have resulted in the suppression of her confession. But they weren't, so it didn't.

Alex's [http://mpdtrainer.wordpress.com/2011/10/26/this-appellate-week-61/ summary of the case] noted the following:

* Two hours is not so much time that it becomes a qualitative factor
* It took place in a neutral setting
* While there were references to defendant's guilt they were in no way coercive (defendant admitted the agents were cordial and nice).
* While defendant reasonably felt she wasn't free to leave, that factor doesn't outweigh the others in this totality of the circumstances test.

The opinion itself also included the following:

<blockquote>

''She stated that, as soon as the agents entered the motel, she immediately realized that she was "in danger of criminal prosecution" and that she did not feel free to leave during the encounter. Conversely, the agents testified that defendant was free to leave at any time during the encounter and that they did not intend to arrest her at that time and place. When asked by her attorney why she confessed, defendant stated, "As funny as it may sound, doing an illegal activity, I'm still an honest person." When the state clarified on cross-examination, "[Y]ou confessed because you felt guilty about having committed the crime?" defendant responded, "Yes, sir."''

</blockquote>

It's generally always been true that an officer's unspoken probable cause did not create compelling circumstances. Historically, though, once the officer articulates that he has probable cause to arrest, that has changed the dynamic in favor of compelling circumstances.

<blockquote>

''The defendant argued that Miranda warnings were required after the officer ordered her out of her car and asked her if she knew that it was illegal to carry a concealed weapon in a vehicle. Id. at 381. We agreed, holding that the defendant, at that point, was in a "compelling setting." Id.''

''State v. McMillan, 184 Or App 63, 69 (2002)''

</blockquote>

But the opinions lately have suggested that it's not enough that everyone knows the defendant could be arrested. The police must still use that information in, for example, a bullying way to make the circumstances compelling. In the recent opinion, the police were friendly throughout the 2 hour interrogation. There weren't the "aggressive or coercive interrogation tactics" that are "explicitly predicated on assumptions of a suspect's guilt or calculated to contradict a suspect's assertions of innocence."

But what if the police have no choice but to arrest the defendant, even if they haven't done it yet? Does an inevitable, pending arrest make the circumstances compelling? Because in DV investigations, an arrest is often compelled.

<blockquote>

''(2)(a) Notwithstanding the provisions of subsection (1) of this section, when a peace officer responds to an incident of domestic disturbance and has probable cause to believe that an assault has occurred between family or household members, as defined in ORS 107.705, or to believe that one such person has placed the other in fear of imminent serious physical injury, the officer shall arrest and take into custody the alleged assailant or potential assailant.''

</blockquote>

If a defendant is assumed to know the law, and he has just confessed to assaulting the complainant, making his arrest inevitable, should he be read ''Miranda ''before he is questioned further about where the kids where or any other details of the altercation? The presumption is, the defendant ''knows ''he will be arrested in just a few moments. Does that make the situation compelling?
{{wl-publish: 2011-11-09 21:00:00 -0800 | Ryan:Ryan Scott }}