Johnson v. State

SAM BASS, Justice,

dissenting.

I respectfully dissent from the majority opinion.

The circumstances of this cause indicate that the appellant was not initially “seized” or detained at the cargo theft office of the police department. Officer LeMoine testified that there were “bathroom breaks” during the questioning and that he gave the appellant a candy bar and something to drink at some point. Appellant had agreed to talk to police and later also agreed to take the polygraph test. On the other hand, appellant was told that he was a suspect, was read his rights, and signed a statement on a form that read “Statement of a Person in Custody.”

Given the circumstances, I would find that until this point, a reasonable man would have believed that he was free to leave.

However, I reach a different conclusion with regard to the period of time following the polygraph test. Officer LeMoine testified that the appellant was still free to leave after the polygraph test, and that he had no probable cause to arrest the appellant or file a case at that point, but appellant’s testimony and the circumstances make clear that this was not in any way communicated to him. After the test, LeM-oine took him back to the small interview room, and told him that he failed the polygraph exam. When the appellant then gave a different version of events, LeMoine told him that he did not believe him and continued questioning him.

The questioning became more abrupt and direct than before. Appellant testified that upon entering the interview room, LeMoine closed the door and put a chair behind it; however, LeMoine denied this. LeMoine was aware that appellant had begun work at 3:30 a.m. that morning, but continued to question him into evening until appellant eventually confessed. Appellant agreed to sign another statement, this one incriminating, on another form entitled “Statement of a Person in Custody.” LeMoine testified that appellant became so upset during questioning that LeMoine had to wait a few minutes for him to calm down before LeM-oine asked him to sign his confession. I agree with the majority that appellant was “seized” for purposes of the fourth amendment after the polygraph test.

The next inquiry is whether the appellant’s detention was illegal, and it is here that I disagree with the majority. Although a person may be detained temporarily based on less than probable cause, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the police may not, during such a “temporary” detention, employ tactics that are equivalent to the conditions of an arrest. So, a person may not be subjected to custodial interrogation based on only a reasonable suspicion, or less than probable cause. Florida v. Royer, 460 U.S. 491, 499, 103 S.Ct. 1319, 1324, 75 L.Ed. 2d 229 (1983).

Given the totality of the circumstances in this case, I conclude that the police officer did have a reasonable suspicion that would justify a limited, temporary detention of the appellant. Although the polygraph test was not admissible as evidence at trial, it was a fact that the officer could consider in forming his suspicion that the appellant had engaged in criminal activity. Officer LeMoine also had the offense report for the theft and testified that several of the appellant’s statements of events were inconsistent with that report, which also made him suspicious. LeMoine admitted that without the appellant’s confession, no case could be filed against the appellant.

However, as discussed above, LeMoine’s questioning of the appellant after the polygraph test was the substantial equivalent of custodial interrogation, and thus required more than mere suspicion to be legal. Unlike the majority, I do not consider the circumstances as a whole to justify more than mere suspicion, or to be enough to constitute probable cause, i.e., to warrant a man of reasonable caution to believe that appellant had committed the crime. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

Without probable cause, the custodial interrogation of the appellant was illegal, and the State had the burden of proving that the confession was not the fruit of the illegal detention. Relevant factors to be considered in determining whether this burden was met include: whether Miranda warnings were given, the presence of any intervening circumstances, and the purpose and flagrancy of official misconduct. Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 2261-62, 45 L.Ed.2d 416 (1975).

There is ample evidence that Miranda warnings were given to appellant, and he initialed that he understood these warnings. However, the confession was signed less than two hours after appellant was confronted by the police officer with the fact that he had failed the polygraph exam, and after almost continuous questioning by police.

I find little or no evidence of intervening circumstances. Appellant was allowed to call his mother; however, appellant testified that he asked his mother to try to reach an attorney for him and that she told him not to say anything else or to sign anything. These calls can thus not be considered an intervening event that caused appellant to confess apart from the fact of his illegal detention and questioning.

The sole purpose of the police questioning was clearly to get an incriminating statement from the appellant, and the officer admitted that there was no case against appellant unless he confessed.

In view of these factors, I conclude that the confession in this case was the result of the illegal detention, and its admission at trial violated appellant’s fourth amendment rights. I would sustain appellant’s sole point of error and reverse the judgment of the trial court and remand the case for a new trial.