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A Better Partnership
November 16, 2011

COA Opinion: Police statement about the location of a gun did not constitute the functional equivalent of interrogation and a subsequent self-incriminating statement from a subject should not be excl

On November 15, 2011, the Court of Appeals published Judge Murray's opinion for a majority of the panel in People v. White, No. 303228. In this case, the trial court had excluded a statement by a murder defendant to the police on the grounds that, after the suspect had invoked his Miranda rights, a police officer engaged in the functional equivalent of interrogation by making a statement designed to elicit information about the location of the murder weapon. Specifically, the officer said, "I'm not asking you questions, I'm just telling you. I hope that the gun is in a place where nobody can get a hold of if and nobody else can get hurt by it, okay'" On appeal from the State, the Court of Appeals reversed the trial court's exclusion of the subsequent inculpatory statement. The Court of Appeals found that if the officer's statement was the functional equivalent of express questioning then the statement would be properly excluded. The relevant test was whether the officer should have known that his statement would elicit a self-incriminating response. Relevant factors in making this determination are (1) whether the police where aware of a suspect's peculiar susceptibility, (2) whether the conversation was of short remarks, (3) whether there was a lengthy harangue in the suspect's presence and (4) whether the statement was particularly evocative. The Court of Appeals concluded that, under this standard, and focusing on the perception of the defendant, the officer's statement was not the functional equivalent of questioning and the subsequent statement should not be excluded. In particular, the Court noted that the officer specifically told the suspect he was not asking him any question, that there was no evidence of the suspect's susceptibility or a lengthy harangue and that the final "okay" in the officer's statement was not particularly evocative and could reasonably be seen as seeking confirmation from the defendant that he had heard the comment. In his dissent, Judge Shapiro disagreed with the majority, concluding that the phrasing of the officer's statement directly invited a response from the suspect and therefore constituted express questioning or, at the very least, the functional equivalent of questioning.

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