The fourth interrogation of Bean within a 60-hour period following his arrest did not, under the particular facts, amount to an impermissible “sew-up” confession.
General principles. The question, in brief, is whether the time between arrest and formal charge was “inordinate.” Post-arrest interrogation, aimed at securing sufficient evidence to either charge or release the detainee, is permissible but not if the purpose is to “sew up” the case by obtaining admissions to support guilt. Thus, reasonably short post-arrest detention is permitted if for a proper purpose such as interrogating the arrestee or witnesses, verifying their versions, and otherwise gathering evidence. An unreasonably long detention before release or initial appearance is a denial of state constitutional due process and renders any statement inadmissible, ¶¶16-19.
¶23 We conclude “that the police activities during [Bean’s] detention were reasonably and efficiently directed to determining whether … to charge him and that the police … did not utilize the period of detention to attempt to coerce a confession.” Wagner, 89 Wis. 2d at 78-79. During the sixty hours between the time of Bean’s arrest and his confession, the police were constantly moving forward with their investigation, interviewing suspects and attempting to resolve discrepancies in the suspects’ stories. Given the circumstances, and the suspects’ conflicting stories, sixty hours was not an impermissibly long time. Cf. McAdoo v. State, 65 Wis. 2d 596, 600-04, 223 N.W.2d 521 (1974) (in which the supreme court found, under the totality of the circumstances, that a five-day interval between the defendant’s arrest and his last statement to detectives was reasonable and not coercive).
The rule is a venerable one, tracing to Phillips v. State, 29 Wis.2d 521, 532, 139 N.W.2d 41 (1966), which itself relied on what was once called the McNabb-Mallory rule – the Supreme Court’s exercise of superintending authority over federal cases which “provided for the exclusion of a confession although voluntary which is made during an illegal detention due to the failure promptly to bring the prisoner before a committing magistrate.” Also see, e.g., Llaguno v. Mingey, 763 F. 2d 1560, 1568 (CA7 1985) (“The only reason for delay in bringing him before a magistrate was that the police hoped to build a case against David while he was in jail, and this is not a permissible reason for jailing someone indefinitely. It would inject an element alien to our system — imprisonment on suspicion, while the police look for evidence to confirm their suspicion.”). This principle has had less valence since County of Riverside v. McLaughlin, 500 U.S. 44 (1991), which mandates (subject to certain exceptions; as always) a magistrate’s determination of probable cause within 48 hours of arrest. It turns out that in Bean’s instance, Riverside was met with compliance:
¶24 We also note, that Bean’s detention complied with the requirements of County of Riverside v. McLaughlin, 500 U.S. 44 (1991), and the Milwaukee County Circuit Court Rules. Bean received a probable cause hearing at 10:33 a.m. on January 23, 2009, within the forty-eight hours required by Riverside. See State v. Evans, 187 Wis. 2d 66, 86, 522 N.W.2d 554 (Ct. App. 1994). Thereafter, Bean confessed to the carjacking twenty-seven hours later, around 1:20 p.m. on January 24, well within seventy-two hours of the probable cause determination. See Milwaukee County Circuit Court Rule § 4.21A. (2010) (permitting that a suspect be detained for no more than seventy-two hours without being charged or without a further probable cause determination).
Not quite done, not least because there really isn’t any immediately apparent reason for this decision to be published: this is merely application of settled law to particular facts (true of the remaining issues as well). Indeed, so far as can be determined, not a single published decision has ever granted “sew-up” suppression. Nothing new, then, in this most recent iteration of the doctrine. But to the extent publication reinforces the idea that the police can doggedly keep after someone until they confess it could have a pernicious effect. There’s a rich and ever-growing body of research on false confessions – something even the general public is increasingly aware of (no cites necessary; just go to SSRN and search for “false confession”). Granted, Mr. Bean won’t ever adorn an Innocence Project poster or take the podium at some exonerees’ function, but that is just the point: the evidence the police already had against him was massive, and the idea that they were simply moving forward with an on-going investigation that might have resulted in release is a bit of a stretch. If the court sees absolutely nothing wrong in this terrier-like pursuit of a confession of an obviously culpable individual, then what kind of protection is it likely to afford a more vulnerable but possibly innocent suspect?
Right to Silence – Scrupulously Honored
Bean’s fourth interrogation, occurring nineteen-plus hours after he asserted his right to silence during his third interrogation, complied with the 5-factor test of Michigan v. Mosley, 423 U.S. 96, 104 (1975) (right to cut off questioning during custodial interrogation must be “scrupulously honored”), ¶¶26-33. Bean concedes four of the five factors and argues that because the fifth – whether interrogation following assertion of right was on a different crime – is in his favor, suppression is required. The court rejects the argument. Failure to satisfy all the factors isn’t determinative, ¶31, citing, State v. Turner, 136 Wis. 2d 333, 401 N.W.2d 827 (1987).
¶32 Similarly, here, there is no evidence “to support a finding that little was done to assure [Bean] that his right to silence would not be scrupulously honored or that other improper tactics were used that could have arguably coerced [Bean] into talking.” See id. During the sixty hours that elapsed between his arrest and confession, Bean was interrogated three times for a mere two hours total. On each occasion he was aware of the Miranda warnings. On those occasions he wished to speak to police, Bean properly waived those warnings. On the third occasion, when he invoked his right to remain silent, Detective Borman immediately concluded the interrogation, asking no more questions. Police then waited nineteen and one-half hours, permitting Bean a full night’s sleep, before attempting to speak with him again, at which time a different detective resumed questioning. Moreover, the tone of the fourth interrogation was “polite” and Detective Spano “was anything but threatening.” In short, Bean’s right to remain silent was scrupulously honored; there is simply no evidence in the record that the police made any attempt to induce Bean not to invoke his right to silence or attempted to coerce him to talk. See Turner, 136 Wis. 2d at 359.
¶36 The circuit court concluded, and we agree, that there is nothing about Bean that makes him particularly susceptible to police pressure. He is an adult, has been arrested before, and is familiar with the criminal justice system. At the time of his confession, he had been in custody for sixty hours, but during that time he had eaten and had been provided an opportunity for a full night’s sleep before the interrogation during which he confessed. Police had only questioned Bean for a total of two hours before his confession, and that two hours had been divided up among three different interrogations. Before each interrogation Bean was aware of his Miranda rights, and when he invoked his right to remain silent at the beginning of the third interrogation, that invocation was scrupulously honored. The circuit court described the tone of the fourth interrogation as “low-key” and found that “Detective Spano was anything but threatening.”