Playing wiretaps is not interrogation

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It is not interrogation for police officers to play recordings of a suspect implicating him in the crime.

Judge Joel M. Flaum wrote for the 7^th Circuit on Feb. 14, “Merely apprising [the suspect] of the evidence against him by playing tapes implicating him in the conspiracy did not constitute interrogation.”

In 2005, 17 individuals, including Robert Vallar, were indicted for various drug offenses.

Vallar was arrested and taken to the police station, where, before he received his Miranda warnings, he was forced to listen to audio tapes implicating him in the conspiracy. After the officers read him his rights, he made incriminating statements.

Vallar moved to suppress the statements, but the district court held they were admissible. A jury found him guilty and he appealed the admission of his statements, but the 7^th Circuit affirmed.

Under Rhode Island v. Innis, 446 U.S. 291 (1980), the standard is whether a reasonable objective observer would believe that the encounter was reasonably likely to elicit an incriminating response from the suspect and therefore constituted the functional equivalent of interrogation.

The court concluded that playing the incriminating recordings was not interrogation, citing Easley v. Frey, 433 F.3d 969 (7^th Cir. 2006), and Enoch v. Gramley, 70 F.3d 1490 (7^th Cir. 1995), for support.

In Easley, the court held that it was not interrogation for an officer to inform the defendant of the evidence against him and the possible consequences the defendant faced.

In Enoch, the court held that it was not interrogation for the officer to identify the victim to the suspect and briefly state the evidence against him.

Playing the tapes for Vallar was no more likely to elicit an incriminating response than in Easley and Enoch, the court concluded.

Even more significant, the court found, was that Vallar did not make any statements in response to the tapes until after he received and waived his Miranda rights.

Vallar also argued that playing the tapes before reading him his rights was contrary to Missouri v. Seibert, 542 U.S. 600 (2004). In Seibert, the Supreme Court struck down a police protocol of interrogating a suspect and obtaining a confession, and then Mirandizing him, and obtaining a second admissible confession.

But the 7^th Circuit distinguished Seibert, because the defendant in that case made incriminating statements both before and after waiving his Miranda rights. The court concluded: “Vallar was interrogated only after he received and waived his Miranda rights and he made no incriminating statements before signing his advice of rights form.”

Analysis

Inasmuch as Vallar did not confess until after being given Miranda warnings, the court’s ultimate holding – the statement was voluntary – is defensible.

But the conclusion that playing the recordings did not constitute interrogation is not.

Both Easley and Enoch are easily distinguishable.

First, neither Easley nor Enoch was tried in federal court, but state court. To grant habeas corpus, the court would have had to find that admission of the statement was not contrary to clearly established Supreme Court precedent. But, in Vallar’s case, review was de novo.

Second, in Easley, the court concluded, “Easley has not suggested that [the officer’s] statement was anything more than a matter-of-fact communication of the evidence against him and the potential punishment he faced. Accordingly, we are not persuaded to hold that the Illinois Supreme Court misapplied or acted contrary to United States Supreme Court precedent when it determined that [the officer’s] statement was not the equivalent of interrogation.” Easley, 433 F.3d at 974.

In contrast, playing recordings of the defendant incriminating himself cannot plausibly be construed as “a matter-of-fact communication of the evidence against him.”

“Matter-of-fact” means “unembellished.” Stating, “We have wiretaps of you conducting narcotics business,” is “matter-of-fact.” Going to the trouble of assembling the various wiretaps and a tape recorder in the interrogation room and playing them for the suspect is not matter-of-fact, it is embellishment.

In Enoch, the defendant asked who he was charged with murdering, and the officer told him.

The court concluded, “[W]e merely have the police identifying the victim to the suspect and briefly stating the evidence against him. … Briefly reciting to a suspect in custody the basis for holding him, without more, cannot be the functional equivalent of interrogation (emphasis added).” Enoch, 70 F.3d at 1500.

In contrast, in Vallar’s case, the officers didn’t briefly recite the basis for holding him. They did more. They went to significant effort to present the evidence against him.

That was a strategy that could only have had one goal – to elicit an incriminating response. For the court to hold that this is not interrogation creates a big incentive to circumvent suspects’ Miranda rights.

What the Court Held

Case: U.S. v. Vallar, Nos. 07-3641, 08-1361, 08-3888 & 09-3484

Issue: Is it interrogation to play wiretaps of a suspect in custody without Mirandizing him?

Holding: No. Merely apprising a suspect of the evidence against him by playing tapes implicating him in a conspiracy does not constitute interrogation.

David Ziemer can be reached at [email protected]