When Does Police Trickery Cross the Line?
On March 4, 2008, I wrote an article on this blog entitled "Are the Police Allowed to Lie to Get You to Confess?" I answered that question by saying, "[Y]es, the police are allowed to lie to you to get you to confess. The law in Florida is that the use of tricks or factual misstatements by the police do not by themselves make a confession involuntary."
Although that was a correct statement of the law, there are, nevertheless, interrogation techniques which the police are not allowed to use in obtaining evidence from a suspect.
For example, in the case of State of Florida v. McCord, a Detective Cahir focused his attention on a person named Foskie McCord as being a possible suspect in several armed robberies in Palm Beach County, Florida. While McCord was in jail on unrelated charges, Cahir met with him, gave him Miranda warnings, and told McCord that he was a suspect in a rape case. He also convinced McCord to provide him with a DNA sample by telling him that such evidence would prove whether or not he committed the rape.
The problem with all of this was that there was no rape! Cahir made that up in order to trick McCord into giving him a DNA sample so that he could compare that sample with a sample of DNA that was found at the scene of one of the robberies. In addition, Cahir never mentioned to McCord that he was a suspect in any armed robberies.
After McCord was charged in the robbery cases, he filed a motion to suppress the DNA evidence on the ground that his consent was involuntary and obtained in violation of his due process rights because Cahir used deceitful tactics to acquire it.
The trial judge who head the motion agreed with McCord and suppressed the DNA evidence. However, the State Attorney's Office appealed the judge's decision to Florida's Fourth District Court of Appeal--which also agreed with McCord and suppressed the DNA evidence!
The Fourth District Court began its analysis by noting that in the case of Schneckloth v. Bustamonte the United States Supreme Court stated that a warrantless search does not violate the Fourth Amendment to the U.S. Constitution if the search is conducted pursuant to a freely and voluntarily-given consent. However, said the Fourth District Court, such consent can be rendered involuntary if an interrogating officer makes misrepresentations regarding the nature of the investigation. The Court also observed that insofar as confessions are concerned, "the use of police trickery may result in the exclusion of the confession depending upon the level of trickery employed."
According to the Fourth District, a "critical factor" in Mr. McCord's case was whether Cahir's deception undermined the voluntariness of McCord's consent. In concluding that Cahir's deception did indeed undermine the voluntariness of McCord's consent, the appeals court found it particularly troubling that the detective made up the rape charge in order to obtain McCord's DNA. The Court distinguished this case from those cases cited by the Attorney General's Office in which the police used trickery but did not make up stories about nonexistent crimes.
This is an interesting story indeed. Filed a motion to suppress. I will used that in the other case I am working on.
I find this info helpful. But can you answer this my daughter was interrogater for 3 hours after being a wake 26 hours with her 16 day old baby who started having seizures we just had a DCF hearing no one can state that the baby was shaken the doctor, nurse, case worker, ER team but in her interrogation you could see she was numb and confused and she confessed to shaking him once then laying him down walked away counted to ten then picked him up, she also confessed to falling down the stairs with him but the babys father already confessed in his introgation, she said she hit his head with the baby swing but father already confessed to both in interrogation. the police told her he was in another room telling them how she abused the baby and he believed that she hurt her baby but that was not true he was not interrogated at all until our attorney subpeoned him. and the head sherriff best friend with his grandfather, this is a good ole boy area and nothing has been done right the police that interrogated her were just on the witness stand for DCF and all of them said they didn't remember the case, or my daughter, or her arrest or even the tape and confession how do we get this tape thrown out it is the only evidence and she does not remember anything about it, she was in shoke, the baby was given ephinepine a few days prior for a hemmatoma under his tongue caused from being tongue tied. can you help
Attorney Chapman's response:
If your daughter did not give her statement voluntarily, then it should be suppressed (that is, thrown out) by the judge.
Sir, why does it matter if they can lie or not? Isnt lying considered an interrogation technique? Surely by anyone lying to someone it doesnt make them do anything.
If they are lying as far as making a deal, then it is totally wrong - I wouldnt know legally if this was ok or not