Recorded statement fails to record, now what? Interrogations in murder investigations are required to be recoded. What happens when the recording machine fails to record?
People v. Green, 2014 IL App (3d) 120522 (08/26/2014).
A) Defendant's recorded statement fails to record, does the entire statement have to be suppressed?
B) Did the police have more than a hunch when they stopped the minivan Defendant was riding in? Did the State fail to provide evidence that a reasonable and articulable suspicion existed for the minivan to be seized?
Police found the dead body of the victim in her home. The investigation revealed that defendant had prior domestic batteries against her. Additionally, Defendant had recently sent some threatening text messages to the victim.
As the police were driving up to Defendant’s house they drove around it first to see if Defendant’s car was nearby. As the police approached from the front, a van drove away from the house in the back.
That van was stopped. At gun point, the driver was removed. Defendant's sister was driving. Defendant was in the passenger’s seat. When the sergeant approached, he recognized Defendant. The sergeant also noticed blood on Defendant's person.
The officer ordered him out of the minivan, and handcuffed him for officer safety purposes. A large amount of blood was on Defendant’s sweatshirt. It was collected for evidence.
Recorded Statement Fails to Record
There was a malfunction during Defendant’s first hour and forty some minutes of his interrogation. The recording system failed to record.
The Unrecorded Statements
Illinois Compiled Statutes Criminal Procedure section 725 ILCS 5/103-2.1(b) says that statements made during custodial interviews are presumed inadmissible as evidence against the accused in any murder investigation unless they were electronically recorded and the recording is substantially accurate and not intentionally altered.
This is a rebuttable presumption. Section 103-2.1(f) of the Code provides an exception to this presumed inadmissibility if the State shows by a preponderance of the evidence that the statements were voluntarily given and are reliable, based on the totality of the circumstances. 725 ILCS 5/103-2.1(f).
A defendant moving to quash an arrest and suppress evidence must make a prima facie case that the police lacked probable cause. See People v. Brexton, 343 Ill. App. 3d 322, 326 (2003). Terry v. Ohio, 392 U.S. 1 (1968), sets forth the principles we use to analyze the reasonableness of investigatory stops.
Under Terry, a police officer may conduct a brief, investigatory stop of a person where the officer reasonably believes that the person has committed, or is about to commit a crime. Terry, 392 U.S. at 22; People v. Gherna, 203 Ill. 2d 165, 177 (2003).
Determining whether the stop was an unreasonable seizure is a two-step process. People v. Sparks, 315 Ill. App. 3d 786, 792 (2000). First, we decide whether the stop was justified at its inception; next, we determine whether the scope of the stop was proportional to the circumstances that justified the interference in the first place. Terry, 392 U.S. at 19-20; Sparks, 315 Ill. App. 3d at 792.
“[T]he police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”
Terry, 392 U.S. at 21, 22, People v. Close, 238 Ill. 2d at 505, 511.
The officer's suspicion must amount to more than an inarticulate hunch. See People v. Close, 238 Ill. 2d 497, 505, 511 (2010)),but need not rise to the level of suspicion required for probable cause. See United States v. Sokolow,490 U.S. 1, 7 (1989);). The collective knowledge of all of the officers involved in the apprehension of a defendant, even if such knowledge is not told to the arresting officer, may be considered by the trial court in determining whether a reasonable suspicion existed. People v. Hoekstra, 371 Ill. App. 3d 720, 723 (2007).
The Unrecorded Statements
Defendant argues that the trial court erred in admitting his custodial interview statements because the State did not overcome the presumption of inadmissibility.
He asserts that cumulatively that-
(1) his request to see his family members was conditioned upon an inculpatory statement;
(2) he was subjected to repeated profanity and crime scene photos of the victim’s body; and
(3) he was subjected to a custodial interview lasting five straight hours with essentially no breaks resulted in two involuntary and unreliable exculpatory statements and a final inculpatory statement.
“[T]he test for voluntariness of a statement is whether the defendant made the statement freely, voluntarily, and without compulsion or inducement of any sort, or whether the defendant’s will was overcome at the time he or she confessed.” People v. Gilliam, 172 Ill. 2d 484, 500 (1996). The assessment is based on the totality of the circumstances.
Gilliam notes several factors to consider in determining voluntariness such as:
- the defendant’s age
- mental capacity
- physical condition at the time of questioning
- the legality
- duration of the detention and questioning
- whether the defendant was advised of his constitutional rights
- and any physical or mental abuse by police
- including the existence of threats or promises.
Id. at 500-01.
The trial court found that Defendant was a 23-year-old adult, with prior criminal justice experience, not lacking in mental capacity or physical ability, and not exhibiting diminished intelligence. He does not fit the profile of an adult in need of familiar assistance when requested during a custodial interview.
Section 103-3 of the Code states that “[p]ersons who are arrested shall have the right to communicate with an attorney of their choice and a member of their family by making a reasonable number of telephone calls or in any other reasonable manner.” 725 ILCS 5/103-3.
The intention of this section of the Code is to “[p]ermit a person held in custody to notify his family of his whereabouts” to enlist their help for procedural safeguards such as hiring an attorney. People v. Prim, 53 Ill. 2d 62, 69 (1972) ; 725 ILCS 5/103-3(a). “[T]his statute does not give the defendant the right to have a member of his family present with him during interrogation or even to visit with him while in custody other than at regular visiting periods.” Prim, 53 Ill. 2d at 69.
Here Defendant’s family knew of his whereabouts and why he was being interviewed before the custodial interview started. His sister was the driver of the minivan and testified that she and Defendant were headed to the police station for Defendant to give a statement about the events leading to victim’s death. He was walked into the station from her minivan.
Defendant was also told throughout the custodial interview that his story and the statements given by his family members did not match.
Defendant was interrogated for 5 to 6 hours. Interrogations lasting six or eight hours do not render a statement involuntary. People v. Ramey, 152 Ill. 2d 41, 58-59 (1992); People v. Terrell, 132 Ill. 2d 178, 201 (1989). Defendant was fully informed of his rights and never requested that the interrogation end or asked for an attorney. He was given several opportunities, which he notes in the facts of his brief, to break for food and water as well as use the restroom.
Further, Defendant stated he was on his way to the police station to give a statement at the time the minivan was seized. Thus, the start of the interrogation was in accord with his alleged timeline. As the trial court noted, the interview length was extended because Defendant's versions of events continued to change. Therefore, the duration of his custodial interview does not render his statements involuntary or unreliable because there was no overbearing official pressure or fatigue.
Here the information relied upon by the police stemmed from various sources armed with incriminating facts.
After interviewing Brittany's family members and checking the police database, the police were aware that Defendant had recently sent Brittany threatening text messages and there was a history of domestic incidents between them.
Three detectives saw the minivan and the car depart from the vicinity of the house minutes after their arrival. The house was a known residence of Defendant, so there was little chance an innocent bystander would be detained.
A reasonable officer could form an articulable suspicion that Defendant or someone assisting him to evade responsibility for harming Brittany was present in one of those vehicles leaving that specific location. Although the minivan was not observed engaging in any unlawful or threatening acts, the police had more than a mere hunch to justify its seizure.
There was no probable cause to arrest defendant at this point. Certainly there was reasonable suspicion to detain and question him.
Defendant's due process rights were not abridged and the evidence resulting from the arrest could properly be used at trial. The State met its burden that Defendant's custodial statements were given voluntarily and are reliable and could properly be used against him.