Category: Crime Law and Criminals

Expect to have a criminal defense team in your corner when you come face to face with the Texas court judicial system. Texas judges are tough and so are Texans, so if you are needing to appear in Travis County or the surrounding area for a docket call or pre-trial hearing, call Jackson F. Gorski Law Firm. The State of Texas’ Penal Code system has criminal penalties that are strict while enforcing the law in Texas. Whether it’s a misdemeanor or federal drug related charge, the price to pay is more than money owed to the State because of fines. Jail time, probation, various anti drug or AA meetings to attend and so on,…is part of the package. You wouldn’t want to face any of them, especially jail time. Unless you can handle the punishment and pay a sentencing term with your freedom, then go right ahead. But within the laws of Texas, it’s best to get yourself a good criminal defense attorney like Gorski from The Law Office of Jackson F. Gorski.

Here’s a common example of what my law firm handles.

“Possession or delivery of drug paraphernalia (…18 or older and [the] person receiving the drugs or intending to receive paraphernalia *and is younger than 18, but at least three years younger than the ‘actor’) will face at least 6 months in jail.”

[Texas Health & Safety Code §481.125(c), (f)]

Drug free zones

Texas is known to have strict laws for possession of a controlled substance. One common illegal substance found in vehicles stopped for traffic violations are narcotics and alcohol. STATS When drug possession laws or drug paraphernalia possession laws are broken, a conviction is almost certain in most cases. In fact, possession of any drug, or the intent to distribute or manufacturer a controlled substance is now enhanced as the following.

With a criminal defense attorney handling your case, you’ll be informed and taught various addendum or updates to the law of Texas as you get closer for your date in court. Don’t think of it as a negative thing happening in your life, even though it is in scope, try to think of it as a ‘growth experience’ in character and in the eyes of Texas. With that said, here is one in many enhancement NOTEs on certain laws in the State of Texas.

At Drug-Free Zones (for offenses punishable as second degree felonies under §§481.112, 481.1121, 481.113, 481.114, or 481.120, Punishment has been increased to a felony charge of the first degree.

[Texas Health & Safety §481.134(b)]

You could face jail time, probation, fines, and a 6 month loss of your driver’s license when you get a drug paraphernalia possession charge, but when it’s a drug free zone, it’s far more in scope as well.

Violations of the Texas Penal Code, The Texas Controlled Substances Act, and Health and Safety Code laws do provide for the more detail points of law. They in fact, should be applied with “cases of possession of illegal drugs.”

Understanding the common applied Texas laws and penalties given in the Texas courtrooms isn’t always interpreted by the average person nor understand every one single law after another.

http://www.drugpossessionlaws.com/texas/

Texas Drug Possession Defense Strategies

The state of Texas has diversion programs for first time offenders. Only if they are eligible to have their charges dropped after completing the program.

Drug free treatments and educational programs for offenders are part of the defense strategy which, some, have strict program requirements. The treatment and programs, community alternative sentencing can be determined by a judge. Your criminal record can be cleared too when you complete the Diversion Programs in the State of Texas. This basically keeps your criminal record clean! Nevertheless, there are always opportunities to fight for your rights or basically defend your case in court and on your behalf.

Winning a drug case can be bitter-sweet at times, especially when you want to start your day with a phone call to our law firm. For free consultation and in order to discuss the case such as charges for drug paraphernalia, you must call. We can evaluate your case and work some out something in your defense. It’s the only chance for you to begin structuring your life once again and on the right track. Call Jackson F. Gorski at (512) 485-3003.

Penalties, Fines and Jail Times

  • For first time offense: “a person … knowingly or intentionally uses or possesses with intent to sale drug paraphernalia” is a Class C Misdemeanor. “A conviction will involve fines of up to $500 with conviction of a drug offense will result in a loss of your drivers’ license. Your license can be suspended for a year depending on your age.
  • For first time offense: Sale or delivery or possession with intent to deliver, or manufacturing with intent to deliver drug paraphernalia. This is a Class A misdemeanor. “A conviction may result to a minimum of 1 year in jail. Fines can be up to $4,000.”
  • For second offense: “Sale or delivery is NOW a felony and punishable by a mandatory minimum sentence of 90 days in jail up to a maximum sentence of 1 year in prison with a maximum fine of $4,000.”
  • Selling or delivering drug paraphernalia to underage (17 yrs. or younger) is NOW a felony punishable by a mandatory minimum sentence of 180 days in jail up to a maximum sentence of 1 year in prison with maximum fine of up to $10,000.

On another level, the last count of general population in Travis County this year was a little more than 1 million.

Those who violate Code of Criminal Procedure, 42.12, §3g(a)(1), for the department of Texas Health Safety Code §481.140 or 481.134 (c), (d), (e), (f), Drug-Free Zones is one of those laws that truly enforce drug free locations or places, such as schools, churches, malls, skate parks,…etc.

According to Chapter 481 of the Texas Health and Safety Code, the definition of drug paraphernalia is defined as the following.

“Drug paraphernalia means equipment, a product, or material that is used or intended for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, or concealing a controlled substance in violation of this chapter or in injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of this chapter (Source: TexasPenalCode.com/)”

It goes further on to list the equipment used or material used for illegal drugs.

“(i) a metal, wooden, acrylic, glass, stone, plastic, or ceramic pipe with or without a screen, permanent screen, hashish head, or punctured metal bowl; (ii) a water pipe; (iii) a carburetion tube or device; (iv) a smoking or carburetion mask; (v) a chamber pipe; (vi) a carburetor pipe; (vii) an electric pipe; (viii) an air-driven pipe; (ix) a chillum; (x) a bong; or…Source: TexasPenalCode.com/)”

Overview of Drug Paraphernalia Possession Law

Below is the Texas laws of Drug Paraphernalia Possession example of a drug paraphernalia charge.

  • A person in college or at work happens to have “zip lock” bags in their backpack because he/she needs the bags for lunch “stuff.” Security saw the bags during a lunch break and since they’ve seen them, and the spoons you brought as well, they question you, you have now gained a “drug paraphernalia possession” charge because of the probable cause rule.
  • A person with syringes in the backseat of their car (because it’s their diabetic parent’s medical necessities) has now caused you to be questioned about drug paraphernalia in your possession.
  • A person with smoke pipes and bongs scattered around the dining area when the police arrive to your apartment because they were called because the music was too loud has now caused you a night in jail for drug paraphernalia in your possession.

Drug Paraphernalia Possession Laws in Texas and the basis of understanding

Each drug crime case is unique, and depending on the specifics of the case you are facing, your penalties may vary; however, there are some specifications outlined in the Texas State Penal Code which could give you an idea of what you may be up against. With a criminal defense attorney from Austin, Texas on your side, fighting for you while keeping you informed of all legal matters during the course of your case proceedings, you may get a reduction or even better, a dismissal, depending on the degree of the drug related charge. An in-depth understanding of the Texas legal system which is common in the Austin area is a basis of many cases Gorski Law has litigated on behalf of many clients.

There are four types of drug related charges in Texas with strict criminal penalties.

  1. Drug possession: Having illegal substances on you, in your home or in your vehicle can warrant an arrest and charge of drug possession.
  2. Drug distribution: Also known as drug trafficking, this crime involves the physical passing of an illegal substance from one person to another or from one place to another.
  3. Drug sales: The sale of illegal substances for profit of any type is a common and serious crime that holds immense penalties.
  4. Drug use: Operating a vehicle under the influence of an illegal substance, or being under the influence when arrested can result in a drug crime charge. Additional Paragraph Related to Drug Paraphernalia Possession Statistics

Potential Defenses & Your Rights

In Texas, the rights of a person who gets arrested are broken down to the minimal. With little rights, if convicted, it can interfere with his/her lifestyle, especially without a defense team that knows the “possession” laws in Texas. In other words, you don’t have to say “goodbye to your rights,” when you call Gorski for your defense lawyer.

Facing charges for drug paraphernalia in the municipal, state, or federal level is nothing to be proud of. Unless you are innocent, the charges can stick to your criminal record for years. In fact, in the state of Texas, it stays. Whatever level of the judicial system you have to face to prove your plea for “not guilty” will depend on your aggressiveness of your innocence.

For example, in Travis county and other surrounding counties have diversion programs where first time offenders get charges dropped in exchange for completing this particular program. The requirements include drug treatment and education programs, community service, or other alternative sentencing as determined by a judge.

If you have been arrested, contact an Austin criminal defense attorney like Jackson F. Gorski. When you immediately find out you have to appear in a docket call or if you are arrested, in jail, or know someone who is call Gorski immediately. If you have a “motion to revoke” charge now because of a drug paraphernalia charge, call The Law Office of Jackson F. Gorski .

TDC, three meals and a cot daily

It’s packed in the state and county jails as we speak, but the Texas Department of Correction’s will find a way to make room for you! If you like “3 meals and a cot” daily with no sunshine, then by all means, you can face your charges alone without getting representation. Although you may want to study up on all statutes and laws line by line because the least charge of possession for the first offense carries minimum of 6 months. Otherwise, if you face criminal charges such as Drug paraphernalia in Texas, especially in Travis County and the surrounding Austin area, call Gorski Law in Austin, Texas.

Understanding both sides of the court system, such as the prosecution’s best case scenario can allow me and my specialists to plan a rightful solution according to the case and the penalties against you in the Texas courts of Travis County or the surrounding area of Texas.

The solution for your case is unique as are most cases in general. Why?

Everyone is different. Everyone has a story. Personally, obtaining an understanding of what happened on the day of arrest of your drug paraphernalia charge is the beginning of a winning solution when facing your court date, if at all.

We will attempt to create a defense team that is customized with your case and with the best interests always in mind. Gorski’s Law firm doesn’t use a template-like approach. We take things such as criminal charges and attempt to defend because of your Constitution rights plus your plea being solved in court without having to take it to trial.

Everyone makes mistakes or gets into some type of trouble unknowingly, or accidentally, or even by chance such as hanging around ‘with the wrong crowd’. Facing various challenges in life that causes us to turn from our good ways happens to the best of us. If you’ve been arrested, or know someone who has for drug paraphernalia, don’t face it alone. Don’t face your criminal charges alone in the courts of Travis county or the surrounding area. If you live in Texas and you broke the law, know you’re innocent until proven guilty.

Call a professional criminal defense lawyer in Travis County or the surrounding area to help with your defense in court. Your Constitutional Rights in court will be processed in every bit of detail. It’s important to hire an experienced and knowledgeable Texas criminal defense lawyer with the skills needed to defend your freedom when you are charged with a drug-related crime. In order to defend those needing representation in the Texas court system, you need an aggressive lawyer and criminal defense team on your side of the ring.

Be informed, call Attorney Jackson F. Gorski

Consequently, many clients facing charges of drug paraphernalia have walked away with fines and reduced time or entered into a probationary program. It beats being locked up behind bars, losing your entire freedom and not being able to see the outside world.

Finally, having an attorney keeping you informed and to fight for your defense in court is what you need to face drug related charges in Texas. Gorski Law Firm has the dedication to all clients and is extremely involved in the criminal defense proceedings in the Travis County, Austin, Texas and the surrounding area. If you have been charged with a crime in Austin or Travis County, please contact me via my contact form or call 512.960.4646.

Crime Law and Criminals

Today we will talk about personal injury from the context of a lawyer and an ordinary everyday person. Anyone can be a mistaken culprit of arson and be liable for personal injury especially if somebody gets burn injuries. You do not have to be a lawyer though to know how to make sure you are never in court for arson. If you are in trouble with the law, contact criminal defense lawyer Mark W. Bennett for help.

  1. STATEMENT OF FACTS

Coconino Forest nearly burned down entirely. A fire burned down more than 15 acres of Coconino National Forest, and it was started from a nearby campsite. (Mot. Hrg. Tr. 21-22, Jan. 23, 2017.) It cost $75,000 to contain the fire. This was not a cheap tragedy. Around July 25, 2016, the Flagstaff FBI got a phone call from Alison Grant who said her ex-husband Robert Krieger may have had something to do with the fire. (Id. at 4-5.) Krieger had taken his children camping at Freidlin Prairie right before the Coconino Fire occurred. (Id. at 5.)

Krieger Voluntarily Came

On August 16, 2016, Agent Lanzarek reached out to Krieger by phone and requested that Krieger travel to the FBI office in Flagstaff. (Id.) Krieger voluntarily agreed to come down to the station to have a conversation with Agent Lanzarek. Krieger was not forced to come down to the station to have a conversation with Lanzarek. Krieger did not know why he was coming to the station, but a reasonable person would not expect to go to a police station for a “picnic”. It could be reasonably expected that Krieger may be asked questions by an officer at a police station during his conversation with Lanzarek.

1 Officer Unarmed During Interrogation

When Krieger arrived, Lanzarek took him to a small, private room to have their interrogation. (Id. at 6.) Only Agent Lanzarek was in the room interrogating Krieger, no other officers were involved in the interrogation. (Id.) Lanzarek was openly unarmed. (Id at 38.) He wore professional dress which was pants, a suit without the jacket, and a tie. (Id.) There were two officers outside the interrogation room talking in the beginning of the interrogation, but Lanzarek went outside the room and told them to move away. (Id at 12.)

Duration of Interrogation

For the first 20 minutes of the interrogation, Krieger and Lanzarek talked about baseball and local Flagstaff matters. (Id. at 7.) This part of the interrogation was purely conversational and likely made Krieger more comfortable with the interrogation room setting. The rest of the interrogation lasted for 46 minutes minus the 7-minute bathroom break that Krieger took, so overall 39 minutes of interrogation. For the remainder of the 39 minutes Lanzarek questioned Krieger about his involvement in the Flagstaff fire.

Krieger Free to Leave When Done Talking

In the beginning of the 39-minute interrogation, Lanzarek made it known to Krieger that “you’re not under arrest and no charges are pending against you”. Lanzarek also said “you will be leaving here on your own free will. You will be leaving here when we are done talking”. (Mot. Hrg., Gov’t Ex. 1.) Lanzarek made it known to Krieger that Krieger was there of his own accord and could leave at any time that he wished. (Id.)

Krieger Was Not Uncommonly Pressured

Lanzarek may have used coercive tactics to get Krieger to tell the truth, but Lanzarek did not use any illegal tactics. (Hrg. Tr. at 10.) Lanzarek also just told Krieger what may happen if Krieger did not come clean. For the most part, Krieger was an open talker and would answer Lanzarek’s questions. (Id. at 46.) When Krieger wanted to go to the bathroom, he was allowed to go by Lanzarek. (Id. at 15.) Also, as stated before, when Krieger was done with answering questions about Lanzarek he left of his own free will. (Id. at 17-18).

STATEMENT OF ISSUE PRESENTED

Agent Lanzarek invited Robert Krieger over to the police station to question Krieger about his possible involvement in the Flagstaff fire. Krieger agreed and went to the station where just Lanzarek questioned Krieger in a small, quiet room. When the Defendant Krieger was being interrogated by Agent Lanzarek was the Defendant Krieger in custody for purposes of Miranda?

III. ARGUMENT

  1. THE MOTION TO SUPPRESS SHOULD NOT BE GRANTED BECAUSE DEFENDANT WAS NOT IN CUSTODY FOR MIRANDA PURPOSES

During an investigation of the Freidlin Prairie Fire, Officer Lanzarek interrogated Defendant Robert Krieger and obtained incriminating statements. The question presented is whether Defendant was in custody at the time of the interrogation. If he was, Officer Lanzarek was constitutionally required to conduct Miranda warnings, and his failing to do so would require the suppression of Krieger’s incriminating statements. See United States v. Jefferson, 790 F.2d 346, 347 (9th Cir. 1987) (holding that non-Mirandized statements made during custodial interrogation cannot be used at trial).

The Fifth Amendment says that “No person … shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. In Miranda v. Arizona, the Supreme Court came up with a procedure, the so called Miranda warnings, to assure that a suspect is advised of his/her Fifth Amendment rights before “custodial interrogations”. 384 U.S. 436 (1966). An officer only has to give the suspect Miranda warnings when the suspect is in custody. Id. To determine whether a suspect was in custody, one must examine the totality of circumstances around the interrogation. J.D.B. v. North Carolina, 564 U.S. 261 (2011). Once the circumstances are taken into account, the court must decide whether a reasonable person in the suspect’s position would have felt deprived of freedom such that he would not have felt free to end the interrogation. Id.

In order to decide whether a reasonable person would believe he or she was free to leave the environment, the following factors are among the most relevant: 1whether the suspect voluntarily came to the police station, 2 how many police officers were interrogating and whether they were armed, 3 whether the defendant was under arrest during the interrogation,4 and the duration of the interrogation. Craighead, 539 F.3d at 1084.

After reviewing the relevant factors mentioned, it is clear that Defendant Krieger was not in custody for Miranda purposes; a reasonable person in Defendant’s situation would have felt free to walk away from the interrogation. First, Defendant voluntarily agreed to take a trip to the police station. Second, Defendant was only interrogated by one officer that was unarmed. Third, Defendant was told he could end the interrogation and leave at any time once he was done talking, which he exercised this right. Finally, this was a brief interrogation, therefore the overall interrogation was non-custodial for Miranda purposes.

  1. Defendant voluntarily coming to station is in favor of non-custodial interrogation

Where a defendant voluntarily comes to a police station to speak to police, courts have held that the interrogation will tend to be non-custodial. Here, the record establishes that the Defendant Krieger voluntarily chose to come to the police station to speak with Agent Lanzarek. Agent Lanzarek called the Defendant on the phone and asked the Defendant to come into the station to talk, then the Defendant voluntarily drove himself over to the station. It was not stated whether the Defendant knew what Agent Lanzarek wished to speak about, but it is possible the Defendant knew their conversation would involve the Flagstaff fire.

Courts have found interrogations, where the defendants bring themselves to police stations, are often held as non-custodial. For example, in Oregon v. Mathiason, a police officer left a note for the defendant saying the police officer wanted to discuss something with him. 97 S. Ct. 711 (1977). The defendant called the police officer back and agreed to come down to the station to speak with the officer. Id. The Supreme Court later held that the defendant’s interrogation was non-custodial partly because the defendant voluntarily came to the police station. Id.

Where a defendant voluntarily comes to a police station for an interrogation, courts have found these interrogations to be non-custodial for Miranda purposes. Defendant Krieger agreed to meet Lanzarek at the police station and the Defendant consciously made the decision to get in his car and drive over to the police station to speak with Lanzarek. The Defendant fully knew he was going to a police station to talk to a police officer, no surprises there. It follows then that the interrogation should be held as non-custodial since the Defendant put himself in the situation by voluntarily driving to the station where he would be questioned by Lanzarek.

Prosecution will likely argue that the Defendant Krieger, although voluntarily choosing to come to the police station, did not know he would be interrogated by Agent Lanzarek. However, whether the Defendant suspected what Lanzarek would ask him is irrelevant because the Defendant chose to put himself in that situation. Where a defendant voluntarily comes to a police station for an interrogation, courts have found these interrogations to be non-custodial for Miranda purposes. No one forced the Defendant Krieger to come down to the police station for a possible questioning. The Defendant could have just of easily told Lanzarek “no” or he could of said “yes” and still never gone to the police station. A main point of the Mathiason logic is that a defendant that has the freedom to choose to come to a police station and be interrogated cannot have that interrogation seen as custodial for Miranda purposes because the defendant used his free will to put himself in that situation. 97 S. Ct. 711 (1977). An interrogation that deserves to be considered as custodial, for Miranda purposes, is one where the defendant’s freedom is restricted therefore he needs to have his Miranda rights read. In this current situation, the Defendant Krieger’s freedom was not restricted because he freely chose to drive down to the police station instead of being forcibly taken down to the station. It follows that this court should find the Defendant Krieger voluntarily coming to the police station to weigh in favor of a finding that the Defendant’s interrogation was non-custodial for Miranda purposes.

  1. Physical setting of the police station was in favor of a non-custodial holding of Defendant

Where a defendant is interrogated in a restrained, police-dominated environment, courts have held that the interrogation will tend to be custodial. See, e.g., United States v. Mittel-Carey, 493 F.3d at 38, 40 (1st Cir. 2007) (finding that the presence of eight officers in the home, one of whom un-holstered his gun, contributed to a police-dominated environment). Here, the record establishes that the interrogation took place in a police station in an interrogation room. Agent Lanzarek was the only police officer that interrogated the Defendant. Lanzarek was unarmed. The Defendant was free to move around the room as he spoke, however, it was a small room, but it had a table and at least two chairs for Lanzarek and the Defendant to sit in.

Courts have found interrogations, where a defendant is restrained and in a high-pressure police dominated environment, are often held as custodial. For example, in United States v. Craighead, the defendant was interrogated in a back storage room. 539 F.3d 1084, 86 (9th Cir. 2008). The defendant was not handcuffed or physically restrained. Id. In the storage room, there were two detectives in there with the defendant, one stood with his back to the door and was wearing police gear while visibly armed. Id. The court held that when viewing these facts in totality the defendant’s freedom was restrained in a way that would increase the likelihood that he would fall to police pressure, therefore the physical setting weighed in favor of custody for Miranda purposes. Id.

Where a defendant is interrogated in a restrained, police-dominated environment, courts have held that the interrogation will tend to be custodial. Here, Defendant Krieger was interrogated at the police station in a small room by one officer, Agent Lanzarek. Lanzarek was not in police gear, but was dressed professionally. He was openly unarmed, which may have helped ease some tension from the Defendant. The Defendant had a one on one interrogation with Lanzarek, no other officer joined them, so it seems difficult to call that small room a police-dominated environment. Although it was a small room, the Defendant was free to move around as he pleased; he was not physically restrained. It follows that this physical setting should be in favor of a non-custodial interrogation for Miranda purposes since the Defendant was not restrained and it was not a high-pressure, police-dominated environment.

Prosecution will likely argue that the key difference between Craighead and this current case was that in this case the Defendant Krieger went to a police station for his interrogation. Police stations can naturally be seen as intimidating and coercive, as opposed to the safety of one’s own home, even if the Craighead interrogation was in a storage room of one’s own home. Prosecution may say that the fact that the Defendant Krieger was interrogated in a police station should already tip the scale in a custodial favor since a reasonable person would be nervous and on edge inside a police station. However, the Oregon v. Mathiason court held that just because an interrogation is in a coercive environment does not mean the interrogation should be held as custodial. 429 U.S. 492, 97 (S.Ct. 1977). Any interrogation where one is suspected of a crime by a police officer will have coercive aspects to it, simply because the police office is part of the law enforcement system which may eventually cause the suspect to be charged with a crime. Id. Police officers do not have to administer Miranda warning just because the questioning takes place in a police station. Id. Miranda warnings are required only when there is a restriction on a person’s freedom that this person is deemed “in custody”. Id. Where a defendant is in a physical setting that is restraining, police-dominated, and high-pressure, courts have held the physical setting to weigh in favor of a custodial interrogation for Miranda purposes. Here, this was not the case even though the Defendant Krieger was interrogated in a police station. A police station will always have coercive elements to it, and in this case the Defendant was interrogated by one unarmed police officer, in a calm, small room. There simply was not enough coercive, high-pressure, police-dominating elements. It follows that this physical setting should be in favor of a non-custodial interrogation for Miranda purposes.

  1. Duration of interrogation is in favor of non-custodial interrogation

Where an interrogation lasts for an hour or less, courts have held that the interrogation will tend to be non-custodial. Here, the record establishes that the Defendant’s interrogation with Officer Lanzerak started at 9:31 PM and ended at 10:37 PM. During that time the Defendant took a 7-minute bathroom break. Also, the first 20 minutes of the interrogation were spent talking about baseball and local Flagstaff political matters; accordingly, Lanzarek “interrogated” the Defendant for 39 minutes because the 20 minutes of small talk and the bathroom break does not count as part of the interrogation. See, e.g., Mickey v. Ayers, 606 F.3d 1223, 1235 (9th Cir. 2010) (finding that small talk between a suspect and a police officer not about a current investigation is not considered interrogational).

Courts have found that interrogations lasting just one hour can be held as non-custodial for Miranda purposes. For example, in United States v. Crawford, the defendant came into the FBI office voluntarily and sat down with agents for an hour interrogation. 372 F.3d 1048, 1061 (9th Cir. 2004). The 9th circuit Court of Appeals held that the defendant was not in custody due in part to the short duration of the interrogation. Id.

Where interrogations are an hour or less, courts have found these interrogations to be non-custodial for Miranda purposes. Lanzarek started off the interrogation simply talking to the Defendant for at least 20 minutes about irrelevant matters and the Defendant took a 7-minute bathroom break, thus leaving only 39 minutes for the actual interrogation. It follows that Lanzarek’s interrogation of the Defendant should be held as non-custodial since the duration was under an hour.

There is no perfect case that says what duration of interrogation is custodial versus non-custodial. However, there are cases that show interrogations that were too long to be held as non-custodial. For example, in United States v. Barnes, the defendant was questioned for about two hours and the court held that an interrogation lasting roughly two hours is custodial for Miranda purposes. United States v. Barnes, 713 F.3d 1200, 1204 (9th Cir. 2013). Only where interrogations are an hour or less do courts generally hold the interrogation to be non-custodial for Miranda purposes. In United States v. Barnes the defendant was interrogated for about 2 hours. It followed that the 9th Circuit Court of Appeals held the defendant to be in custody for Miranda purposes. However, in this present case the Defendant Krieger was interrogated for a maximum of 39 minutes which is much less than a 2-hour interrogation. Therefore, the duration of the Defendant’s interrogation weighs in favor of a finding that the Defendant’s interrogation was non-custodial for Miranda purposes.

  1. Defendant was not under arrest which is in favor of a non-custodial holding

The record establishes that Agent Lanzarek told the Defendant that the Defendant was not under arrest. The Defendant clearly exercised his right to leave because when he felt too uncomfortable to talk he stopped talking, got up, and was escorted out of the police station by Lanzarek. Thus, the court should find the Defendant not being under arrest should weigh against finding the interrogation to have a custodial nature.

Courts have continuously found that in cases where the defendant is told multiple times that he or she is not under arrest, that defendant is not in custody. In United States v. Bassignani, the court said they have consistently held that a defendant is not in custody when officers tell him that he is not under arrest and is free to go. 575 F.3d 879, 886 (9th Cir. 2009). See, e.g., United States v. Crawford, 372 F.3d 1048, 1051 (9th Cir. 2004) (where the court said the defendant was told he is not under arrest which helped find the interrogation was non-custodial for Miranda purposes).

Where a police officer repeatedly tells a defendant that he is not under arrest, courts have held that the defendant’s interrogation is non-custodial for Miranda purposes. Here, Officer Lanzarek repeatedly told the Defendant that he was not under arrest, similar to what the FBI officer told the defendant in Bassignani. The Defendant clearly believed Lanzarek that he was not under arrest because when Lanzarek became too uncomfortable answering questions he got up and was escorted out of the police station. It follows that this court should weight this factor in favor of being non-custodial since Defendant Krieger was told he was not under arrest the interrogation should be non-custodial for Miranda purposes.

The Prosecution will argue that the Defendant was overwhelmed by the confrontation of guilt from Officer Lanzarek, therefore the Defendant’s interrogation should be custodial in nature. The Prosecution will likely compare Defendant Krieger’s case to United States v. Carroll and say that since the confrontations of guilt are similar the court here should rule that Krieger’s interrogation was custodial for Miranda purposes; however, there are some distinctive differences between Krieger’s case and Carroll. In Carroll, 10 minutes into the interrogation the defendant was already being aggressively confronted with accusatory evidence. 102 F.Supp.3d 1134 (9th Cir. 2015). The officers heavily almost bullied the defendant into giving up incriminating statements. Id. Only where a defendant is completely overwhelmed by confrontation of guilt do courts hold the defendant’s interrogation to be custodial for Miranda purposes. Here, Agent Lanzarek spent at least the first 20 minutes engaging Defendant Krieger in small talk about local and political matters. Lanzarek likely was not trying to overwhelm the Defendant with confrontations of guilt. The Defendant was simply an open talker who did not seem to feel uncommonly pressured by Lanzarek, so much so that when the Defendant immediately felt too uncomfortable he stopped talking and the Defendant was allowed to leave. This court should therefore not hold Defendant Krieger’s interrogation to have been overwhelmed by the confrontation of guilt, which means confrontation of guilt weighs in favor of a finding that the Defendant’s interrogation was non-custodial for Miranda purposes.

Crime Law and Criminals

Surveillance Matters for Investigations

For private investigators, surveillance is often a crucial aspect of their work. The role of a private eye is to gather information, observe, and report the actions of the people they are hired to investigate.

These professionals are routinely hired for civil matters (e.g. infidelity, divorce, insurance-related issues, etc.), but they can also be recruited to obtain evidence for potential criminal matters (e.g. fraud, extortion, embezzlement, etc.).

Infidelity & Cheating Investigations

A prime example of surveillance by a private investigator like Gradoni & Associates could involve a case of marital strife. One spouse might suspect another of infidelity and hire a PI to follow their significant to confirm their suspicions. If there is, in fact, evidence of infidelity, the investigator will provide their client with documentation, video footage, photos, etc. of their significant other’s actions and/or misdeeds and the client can decide what they want to do with it. Perhaps the evidence will be used in a divorce action or maybe the spouse will hold onto the information for the future.

Surveillance to fight Insurance Fraud

Another example of surveillance by private investigators could involve an insurance-related issue. A PI could be retained by an insurance company to follow and document the actions of people who have been injured in accidents. The insurance company wants the investigator to obtain evidence of injured individuals who might be attempting to defraud the company and/or exaggerate the extent of their injuries. In these cases, video footage and/or photos are of particular value and importance, especially if circumstances of potential fraud are present.

Example: Investigating Insurance Fraud

Case in point, imagine a man has filed a claim with an insurance company for severe injuries sustained in an automobile accident. The injured man claims he was hospitalized for two weeks following the accident and remains wheelchair-bound while attending outpatient rehabilitation. If an investigator obtains footage of the injured man climbing a ladder and cleaning out his gutters two months after his accident, chances are his injury claims are exaggerated and the claimant’s case will likely be in jeopardy.

Crime Law and Criminals