Tuesday, July 3, 2012

Circuit Split Watch: Miranda at Booking

This article first appeared in the July 2, 2012, issue of the National Law Journal’s Supreme Court Insider.

Under an exception to the Miranda rule, police can ask routine booking questions, such as a suspect’s name and address, without giving a warning. But what about booking questions that have the potential to reveal more?

A pending petition for certiorari, filed by the University of Virginia School of Law’s Supreme Court Litigation Clinic, details a split in the federal appellate courts about the routine booking exception. The Supreme Court has already expressed interest in the case.

The key facts begin with Cecil Alford already under arrest and in the back seat of a police cruiser, incident to an earlier discussion and chase with police. One of the officers noticed that Alford was “kind of squirming” in the back seat. At their destination, police searched the vehicle and found a clear plastic bag with pills and a computer thumb drive under the back seat. The pills were later determined to contain ecstasy.

During the booking process and without a Miranda warning, police asked Alford if the thumb drive, found just under the bag of drugs, was his. Alford said yes, and the drive was stored with Alford’s personal property.

At trial, over Alford’s objection, prosecutors used his admission about the thumb drive to link him to the ecstasy. He was convicted of drug possession by a Texas jury and sentenced to five years in prison.

The Texas Court of Criminal Appeals, the state’s high court for criminal cases, rejected a Miranda challenge by Alford. The police inquiry about the thumb drive, the court held, was permissible as a booking question related to inmate property storage.

Alford filed a petition for certiorari with the Supreme Court, writing that the federal appellate courts “are deeply conflicted in their understanding and interpretation of the routine booking question exception to Miranda.”

The petition describes three approaches, with Texas in the minority.

Five federal appellate courts use a “should have known” standard, meaning that when an officer should have known that a booking question was likely to elicit incriminating information, he must give a Miranda warning.

Four federal appellate courts use an “intent” test; in other words, the officer must intend his questions to yield incriminating information to trigger a Miranda duty.

The D.C. Circuit and the Texas high court follow the “legitimate administrative function” test, which is that if the booking inquiry “is reasonably related to the police’s administrative concerns,” a Miranda warning is not required.

The petition also points to the same three-way split among many state high courts.

Texas waived its right to respond to Alford’s petition. However, the Supreme Court requested a response, due July 12. While a response request does not guarantee that the Court will hear the case, it does show that the petition has the Court’s attention.

Five faculty members from the University of Virginia’s clinic, all former Supreme Court clerks, are on Alford’s petition, including professors Daniel Ortiz and James Ryan.

The counsel of record is David Goldberg, an adjunct faculty member who works at Donahue & Goldberg, a two-man appellate boutique firm. Adjunct faculty John Elwood of Vinson & Elkins and Mark Stancil of Robbins, Russell, Englert, Orseck, Untereiner & Sauber are also on the petition, along with Don Davidson, a solo practitioner who was Alford’s counsel below.

UVA Clinic students take the lead in finding cases, collectively reviewing all federal appellate and state high court decisions. Professor Ortiz confirmed that a student identified Alford from reading Texas cases.