Have you ever heard of a criminal defendant talking his way into prison? It happens more often than you may think. An October 29, 2013 decision by the Fourth Circuit Court of Appeals in the case of Eric Johnson perfectly illustrates how it can, and does, happen. The appeals court chronicled the following background facts in Johnson’s legal misadventure.
Baltimore is a city of nearly 620,000 residents. It is one of the most violent cities in the United States. Annually it has nearly 9000 violent crimes: 196 murders, 341 rapes, 3489 robberies, and 4918 assaults. The city’s murder rate is six times the national average; rape twice that average, robbery five times that average, and assaults three times that average. Baltimore is more dangerous than 96% of the nation’s other cities. The reason is simple: the city has 428 crimes per square mile while the rest of Maryland only has 67 and the rest of the county just 39.6.
Coldspring is one of most crime-ridden neighborhoods in Baltimore. Its crime risk in every crime category is significantly higher than the national average with the exception of rape and burglary. To combat the city’s alarming crime rate, the Baltimore Police Department created the Violent Crime Impact Section. The purpose of the unit is to patrol high crime areas, frequently stopping motorists on reasonable suspicion, hoping the “Terry stop” will lead to information about more serious crimes. That’s what three members of the unit were doing on April 13, 2010 when they noticed a “red GMC Jimmy” with a bent and illegible temporary registration plate swerving in and out of the traffic. The officers decided to make a stop.
Upon approaching the vehicle, Detective Damian Krauss asked Eric Johnson for his license and registration. Johnson responded with a Maryland ID card and the vehicle’s registration but informed the detective he did not have a license. While this exchange was going on, Krauss detected an odor of marijuana, and signaled this suspicion to a fellow detective. Krauss then asked Johnson if the officers could search the vehicle. He consented. The search produced no contraband, although Detective Jonathan Mackensen suspected that Johnson had marijuana concealed in his mouth. Mackensen told Johnson to “spit it out” and he did so: two small bags of marijuana. The officers immediately handcuffed Johnson and placed him in the back of their police unit. They summoned Johnson’s father to come pick up the vehicle. They did not cite the suspect with the license plate violation ticket.
Johnson was a convicted felon who did not want to be sent back to prison. On the way to the police station, he blurted out to the officers: “I can help you out, I don’t want to go back to jail, I’ve got information for you.” The officers were naturally interested. “What do you mean?” Mackensen asked. “I can get you a gun,” Johnson replied. At this point the detective gave Johnson a verbal Miranda warning. A third officer, Sgt. Brian Hopkins, advised Johnson not to say anything else until they reached the police station. After their arrival at the station, the detectives escorted Johnson into an “interview room” where he was read and asked to sign an Explanation and Waiver of Rights form, which he did. The detectives then asked him about the “gun” at which time Johnson told them the weapon was at his home, even describing it and telling them where it could be located in the house. Johnson was asked, and agreed to sign, a Consent to Search form. The detectives immediately went to the house where they discovered the weapon in Johnson’s closet.
The detective then referred the matter to the District Attorney’s office which then notified the U.S. Attorney’s office about the gun. Federal prosecutors sought, and secured, an indictment against Johnson for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Johnson ultimately entered into a plea agreement with the government, preserving his right to appeal the Miranda issue. The district court accepted the plea arrangement and sentenced him to 15 years in prison.
It did not take the Fourth Circuit long to dispense with Johnson’s Miranda violation claim. The issue was quite simple.
Johnson was undoubtedly “in custody” when he was handcuffed in the back of the police car on the way to the police station. The question, thus, was whether Detective Mackensen’s question “what do you mean” constituted a “custodial interrogation.” The appeals court relied upon a 1980 Supreme Court decision, Rhode Island v. Innis, to find it was not. In that case the defendant, Innis, was arrested as a suspect in a taxi driver robbery. He was Mirandized and requested counsel. However, as the Fourth Circuit noted, before Innis “could consult with an attorney, [he] overheard officers discussing a sawed-off shotgun which had been used in the robbery but not recovered, and the risk it might pose to nearby school children. In response, Innis interrupted and led officers to the weapon.”
Innis argued that the officers’ conversation constituted a custodial interrogation. The high court disagreed, finding that Miranda applies only to “police conduct” that is the “functional equivalent” of an interrogation. In other words, any conduct “that the police should know [is] reasonably likely to elicit an incriminating response.” The Fourth Circuit interpreted Innis as follows:
“While the facts of Innis led the Court to emphasize the possibility of a Miranda interrogation without express questioning, it made clear that the opposite is also possible. There are questions that are not reasonably likely to elicit incriminating responses just as there are declarative statements or actions that are. The Miranda analysis does not turn on the form of an officer’s articulation.
“Moreover, Innis illustrates that a question might not be classified as an interrogation even if the question subjectively exerted a coercive effect on a suspect. The suspect’s subjective experience of the questioning is relevant only to the extent it should have been anticipated by the officers such that they should have known that the suspect was reasonably likely to incriminate himself in response.
“This test reflects a careful balancing of interests. Miranda, on one hand, counsels that meaningful enforcement of citizens’ Fifth Amendment right against self-incrimination requires a subjective approach. Miranda recognized that the interrogation environment might render that right illusory by ‘subjugat[ing] the individual to the will of the examiner.’ … To guard against this danger requires a court to consider the police’s actions from the suspect’s point of view. On the other hand, however, ‘the police surely cannot be held accountable for the unforeseeable results of their words or actions.’”
In the Johnson case, the suspect initiated the conversation without any prompting by the police. Detective Mackensen’s question “what do you mean?” in response to Johnson’s volunteered information about the gun could not be considered a “custodial interrogation.” The officers did not need to interrogate Johnson. He consented to the search of his vehicle and voluntarily spat out the two bags of marijuana when instructed to do so. There was probable cause to arrest him, but the detectives in all likelihood had not made a firm decision as to how to formally charge him. The fact that Sgt. Hopkins advised him not to say anything else until they got him to the police station indicates as much.
The Innis test, then, was whether Mackensen should have known that his “question” would likely elicit an incriminating response from Johnson; that he should have reasonably foreseen that result. The Fourth Circuit found that Mackensen had reasonably concluded that Johnson was looking for a deal in his own self-interest when he volunteered information about the gun. “[Johnson] was offering the officers something of value in hope that it would keep him from going to prison,” the appeals court said. “Given the purpose of the suggested bargain, a follow-up inquiry ‘what do you mean?’ would not have reasonably likely to elicit self-incriminating information, because Johnson’s offering such information would have defeated the very purpose of the proposal. The query would reasonably be expected to elicit information incriminating someone else. But incriminate himself is exactly Johnson did. He attempted to extricate himself from a misdemeanor by implicating himself in a felony.”
And that is exactly what Eric Johnson did. He had no one else to give up, and in a moment of reasoning that only he can comprehend, he decided to give himself for a felony in exchange for a pass of a misdemeanor at worse. That decision gave him a bus ride into the federal prison system where he joined 220,000 other federal inmates—many of whom had also talked their way into prison, although perhaps not as colorful as Eric Johnson did.