POLICE / PROSECUTOR UPDATE - AUGUST 1998
Miranda Readvisement (break in interrogation)
Constructive Possession (gun under passenger seat)
The Indiana Supreme Court recently issued an opinion in which one of the issues
was the advisement of Miranda warnings where there is a break in the interrogation.
The facts of the case reveal that the defendant was brought into the police station
for questioning. He was advised of his Miranda rights at the time the police started
the questioning and signed a waiver. After some questioning, the police stopped the
interrogation to investigate part of the defendant's story. When the questioning was
resumed less than an hour later, the police did not advise the defendant a second
time of his Miranda rights. The defendant contended that this failure rendered his
later statements inadmissible at his trial. That is, he should have received a second
warning.
The defendant's contention was incorrect. Although it is the better practice to
reiterate the Miranda warnings after an interruption, a readvisement is necessary
only when the interruption has deprived the suspect of an opportunity to make an
informed and intelligent assessment of his interests. Here, the evidence showed that
the interruption was "part of a continual effort by the police to gather information,"
and the trial court properly refused to suppress the statements.
Our Supreme Court has also held that where an interrogation was interrupted to
transport a defendant to a hospital for the taking of blood and hair samples, the
Miranda warnings need not be repeated. Also, an interruption to transport a
defendant to a place where his interview could be recorded on tape, a second set
of warnings is not required. On the other hand, the Court has held that a
readvisement is necessary in a situation where the defendant is allowed to leave the
place where an interrogation has occurred and go somewhere on his own not related
to the interrogation and then brought back for further questioning.
In June, the Court of Appeals reversed an adjudication of delinquency for carrying
a handgun without a license. In that case a police officer responded to a call that
shots had been fired at an under-21 nightclub. When the officer arrived at 1:00 a.m.,
the officer pulled over a car that did not have its headlights on. The driver of the car
was 17 years old and the 14-year-old defendant was the passenger. The officer saw
an open bottle of cognac on the front seat between the two, so he arrested both for
curfew violation and possession of alcohol by a minor. A search of the car revealed
the handgun under the defendant's seat. The gun was so far under the seat that it
could not be seen by a passenger in that seat.
Indiana courts recognize constructive possession of weapons, which may be inferred
when the defendant's control is not exclusive and circumstantial evidence points to
the defendant's knowledge of the presence of the weapon. Here, there was an
absence of circumstantial evidence that the defendant knew of the presence of the
gun. The gun was in a position that it could not be seen by the defendant. There was
no evidence, for example, that he had been seen carrying a gun shortly before the
car was stopped or that he had previously been engaged in other criminal activity
involving a handgun. Therefore, the evidence did not make out a case for
constructive possession.
Miranda
Ogle v. State, ___ N.E.2d ___ (Ind. 07/29/98)
Heavrin v. State, 675 N.E.2d 1075 (Ind. 1996)
Shane v. State, 615 N.E.2d 425 (Ind. 1993)
Edwards v. State, 412 N.E.2d 223 (Ind. 1980)
Handgun possession
D.C.C. v. State, __ N.E.2d __ (Ind.App. 06/17/98).
This is a publication of the Clark County Prosecuting Attorney, covering
various topics of interest to law enforcement officers. It is directed
solely toward issues of evidence, criminal law and procedure. Please
consult your city, town, or county attorney for legal advice relating to
civil liability. Please direct any suggestions you may have for future
issues to Steve Stewart at 285-6264.