Dara was riding in a bus in the State of Goldbergia when the bus suffered a mechanical failure.  The bus driver pulled over in a parking lot, waiting for a mechanic, and told the passengers that they could either sit on the bus or roam around nearby until the bus was fixed.

Three police officers eating nearby came to see what the problem was.  They couldn’t find the driver, so they walked onto the bus.  Dara was the only passenger who opted to stay on the bus, so the officers surrounded Dara and casually asked her what had happened.  She explained that the bus had broken down, and everyone else was eating or walking around nearby.  The officers asked Dara if they could search her bags, and she said yes.  Unbeknownst to Dara, another passenger on the bus had put a new street drug, Mintata, in her bag.  The officers found the Mintata.

The police arrested Dara for possession of Mintata.  They read Dara her Miranda rights and took her to the police station.  They asked her if she wanted to talk and she said, “I don’t know.”  After two hours of questioning, Dara asked for a peppermint.

Questions:    

1. The police seek to admit the Mintata found in Dara’s bag at Dara’s trial. What is the likely result?
2. The police seek to admit Dara’s asking for a peppermint under the theory that Mintata makes people crave peppermints. What is the likely result?

Answer Key:

1. The Mintata:

Whether the Mintata can be admitted depends on whether Dara was seized at the time she consented to the search of her bag.  If she was seized, it was likely without reasonable suspicion or probable cause, and her consent would likely be the result of an unlawful seizure.   (Note: you can consent to search even if seized, but if the seizure is illegal, then the consent is the fruit of an unlawful seizure, and the evidence will be excluded.)

Dara would be seized if a reasonable person would feel free to decline the officer’s requests or terminate the encounter.    In Drayton, a passenger was not seized – and his consent to search his bags and clothes was not the product of an unlawful seizure – when three officers were checking passengers on a bus interdiction.  In that case, however, only one officer was walking up to passengers, making sure not to block the aisles, although one was at the front and also at the rear.   Here, three officers surrounded Dara, although they spoke to her casually, and she likely did not get the sense that they were investigating her because they were asking about what happened to the bus.  This does not seem like a stronger case than Drayton for seizure, so seizure is unlikely – although Dara was surrounded.  

If Dara was seized, it likely was not supported by reasonable suspicion (needed to justify a brief, Terry seizure) or probable cause.  The bus being unattended might give the police suspicion, but Dara was sitting right on the bus, perhaps the most innocent-appearing of all of the passengers.

Her consent was likely voluntary.  There is nothing to indicate the consent was the product of coercion – a reasonable person could refuse.  Dara did not have to be informed that she has the right not to consent. Her consent was voluntary and also not the produce of an unlawful seizure, so there was likely no Fourth Amendment violation upon which to exclude evidence.

2. The “Confession” about the Peppermint:

For the statement about the peppermint to come in after arrest, Dara would have to both not unambiguously invoke her right to remain silent, and she would also have to waive her right.  The government must prove a lack of invocation and a valid waiver.

The police had probable cause to arrest Dara based on the Mintata in her bag; they did not know it wasn’t hers, and there was a fair probability that a crime had been committed.   However, the arrest may be the fruit of an illegal seizure (and then consent).  In that case, if the police do not find sufficient attenuation between the seizure and Dara’s asking for the peppermint, that statement will be excluded as the fruit of the Fourth Amendment violation – although there likely was no Fourth Amendment violation so this contingency is unlikely.

Once Dara was arrested, she was in custody and surely seized. Both custody and interrogation are met, but the police properly Miranized Dara before interrogating her.

Dara did not unambiguously invoke her right to remain silent (or her right to counsel), so the police could continue questioning her for two hours, just like in Berghuis v. Thompkins – there it was almost three hours before defendant talked, and the court still found the admission of the confession valid because there was no implicit invocation through silence.  “I don’t know” is not an unambiguous invocation, and the police do not need to stop questioning.

It is unclear whether Dara waived her right to remain silent.  For a waiver to be valid, Dara would have to be read her rights (she was), understand her rights (the government has to prove this, although the bar from Thmpkins seems to be low, and Dara clearly speaks and understands English) and begin to speak.  Although Dara did speak, asking for a peppermint may not indicate a desire to waive her right; she may just have wanted a peppermint.  Even if it is incriminating, this does not appear to be the kind of waiver even that Thompkins contemplated, even if waiver is allowed to be implicit.  It is not a course of conduct indicating waiver.  Speaking usually shows waiver because the defendant understands he/she need not confess, but this does not appear indicative of a desire to waive rights and confess.