Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

ATTORNEY SAM DISCUSSES SEARCH, SIEZURE AND A CRIMINAL INVESTIGATION INTO AN ALLEGED KIDNAPPING

Those of you who are regular readers of this blog know that I suggest, in general, that if law enforcement tries to talk to you about criminal activity to which they would like to connect you, you should politely defer questioning until you have an experienced lawyer present.

Of course, this pre-supposes that you are either a suspect or that the ensuing conversation is likely to make you one.

The right to invoke what is commonly known as Miranda Rights. It is more complicated than most people think which is why it is best to follow this suggestion. If you get a lawyer and there is nothing to fear, then your lawyer can tell you that. I have seen too many cases, though, in which it is the police who invoke their right to lie, deceive and mislead someone in order to get a statement they actually like out of a soon-to-be-revealed suspect…or defendant. To give a general admonition to simply go ahead and answer all the questions to the best of your ability without the safeguard of a lawyer would not be great advice. Particularly given what is often done with such statements.

These types of issues fall under the category of Search and Seizure.

We have been discussing the criminal investigation into the allegeged kidnapping with which Jesse Leroy Mathew (now the “Defendant”) has now been charged.

I have been fairly hard on Police Chief Longo (hereafter, the “Chief”), the man in charge of the investigation.

I have regarded several of his reported statements of reasoning absurd and suggested that he may have screwed up this investigation by how he handled the Defendant’s voluntary appearance at the police station in connection to the alleged kidnapping. I will assume you have read the previous three blogs on this case so as not to repeat it all. If not, you can find them here, here and here.

Hindsight gives us, as you know, perfect vision. Therefore, it is easy for me to sit here, see something go wrong, and label it a “bad move”. However, the truth is there is a real question as to whether or not the Defendant had the right to demand an attorney when he first showed up at the police station.

“But, Sam, I thought he was the prime suspect in the case.”

You thought he was. I even labeled him as such. But the police chief refused to officially do so. Instead, he was called a “person of interest”. Not only that, but there is a custody requirement to trigger the need for Miranda Rights. While the meeting was taking place in the station, the Defendant had actually walked in voluntarily to talk. He was clearly allowed to leave…because he did so.

Of course, they charged him with dangerous driving when he did and issued an arrest warrant and Wanted Poster…but why quibble…

I have to expect that the Chief would have preferred to have the interview without a defense attorney present. However, when the Defendant requested one, there were only a couple of choices left to the Chief. He could have told the Defendant that, since he was not in custody and was not a suspect, that he did not have the right to an attorney.

He could have taken a middle road and told the Defendant that, under those circumstances, law enforcement was not going to get him a lawyer but if he wanted to hire one himself, he was free to do so.

Instead of trying to manipulate the Defendant at that juncture (which law enforcement does all the time), the Chief apparently tried to move the bluff further. He agreed to get the Defendant a lawyer, thereby informing him that he was probably a suspect and that, after giving a statement might well be arrested.

Sure enough, the Defendant then took off post haste, which triggered the vehicular charges.

“What happens if the police do not give the Miranda Rights when they are supposed to? Case dismissed?”

Not necessarily. The worst that can happen is that the statement gets suppressed. In other words, the state would not be able to use the statement made against the Defendant. Also, because of a legal doctrine called the “Fruit of the Poisonous Tree”, any evidence that was thereafter discovered because of the statement would also have to be suppressed.

Now, that is a simple way to put it. In reality, it is not so simple. There are many exceptions carved out by statute and case law which ends up allowing many instances where such statements are not suppressed.

I know…I deal with them on a daily basis.

It is likely that, at least at the time, the Chief felt he did not really have enough evidence against the Defendant unless he could get him to make a statement inculpating himself in some way. So, he took the risk in the other direction…being extra sure that any statement would not be suppressed.

As a defense attorney, I have to applaud the recognition and enforcement of the Defendant’s Constitutional Rights. Tactically, as we now know, it was probably the wrong decision.

Shortly after the Defendant took off, the Chief labeled him what he was…a “suspect” and in the blink of an eye issued an arrest warrant for the alleged abduction.

“Why do you say ‘alleged’ abduction?”

Because we do not know that there has been one yet. Unless there is strong evidence about which we do not know (which is always possible), it does not seem like law enforcement has any more evidence than they did when the Defendant showed up at the station.

That’s where the Chief’s ludicrous statements come in. The logic of suggesting things like “I don’t see her, so she must have been kidnapped” or “He was the last person I know of seen with her entering a club in which there are many people (although the video tape shows otherwise), so he must have done it” are hardly the stuff of which convictions are made.

But, life being much stranger than fiction, let’s see what happens…!

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