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Police Questioning Issue Upheld by High Court

December 09, 1988|PHILIP HAGER | Times Staff Writer

SAN FRANCISCO — The state Supreme Court on Thursday left intact an appellate ruling that allows police to try again to question criminal suspects who have asserted their constitutional right to silence.

The action, taken over the dissents of two justices, marked the second time this year the new, more conservative court has removed restrictions on police interrogations imposed under previous court rulings.

In a brief order signed by Chief Justice Malcolm M. Lucas, the court refused to hear a challenge to a 3-0 decision by the state Court of Appeal last August that abandoned a 1978 high court decision barring police from reinitiating such questioning.

Justices Stanley Mosk and Allen E. Broussard voted to hear an appeal from Michael Ward Warner, convicted in Los Angeles Superior Court for unlawful sexual intercourse and lewd conduct with his adopted daughter, a minor. Four votes from the seven-member court are required to grant review.

The appellate court held Aug. 17 that the state constitutional barrier to the police-initiated questioning of suspects who had invoked their rights had been removed by Proposition 8, the anti-crime initiative passed by the voters in 1982.

The appellate panel cited a ruling by the state high court last February in a separate case holding that Proposition 8 had invalidated a 12-year-old, judicially created prohibition against the use of improperly obtained confessions to challenge the credibility of a defendant who testifies at trial.

The high court found in that ruling that the voters intended to require judges to follow less-restrictive constitutional decisions by the U.S. Supreme Court on the admissibility of self-incriminating statements, rather than the California court's strict interpretations of state law.

Curt V. Leftwich of Encino, the attorney who brought the appeal that the court turned down Thursday, said he was "shocked and really surprised" by the justices' action.

"California has always provided greater protection of the civil liberties of its citizens," Leftwich said. "But the court seems to be making it very clear that under Proposition 8, California courts are bound by federal law. . . . And there is a greater danger there because federal rulings are far more conservative and protective of the so-called rights of police than they are of civil liberties."

State attorneys who represented the prosecution in the case were not immediately available for comment.

Warner was arrested at his home in February, 1984, and told by investigating officers that he had been accused by the girl of raping her. He was advised of his rights to silence and to free legal counsel, as required under the landmark U.S. Supreme Court decision in the case of Miranda v. Arizona, and declined to answer any questions.

The next day, however, Warner was approached by another officer who was unaware that the suspect had invoked his right to silence. This time, Warner agreed to talk, and after receiving another Miranda warning, he made incriminating statements to the second officer.

At trial, a judge upheld the admissibility of the statements, rejecting Warner's contention that they could not be accepted as evidence under the 1978 high court ruling barring any use of confessions resulting from police-initiated interrogations of suspects who have invoked their rights.

Later, a state Court of Appeal in Los Angeles upheld the trial court ruling, saying that the 1978 ruling had been nullified by Proposition 8's requirement that state courts rely on U.S. Supreme Court decisions in such circumstances.

Appellate Justice Mildred Lillie, writing for the court, said the circumstances of Warner's interrogation were similar to those in a Michigan case in which the U.S. Supreme Court in 1975 upheld a second interrogation by police of a suspect who earlier asserted his right to silence. Under the federal high court standard, the questioning of Warner was permissible, the panel said.

"The record before us is remarkably free of any suggestion of police misconduct," Lillie wrote. "This is not a case in which there was any police imposition on the defendant or the defendant was tricked into changing his mind. . . . (There is not) even a hint that police at any time tried to wear down defendant's resistance or browbeat him into submission."

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