L 4500 INTERVIEWS.pdf

L 4500 INTERVIEWS / INTERROGATIONS: O#icers will remain alert to gather information from witnesses, suspects or arrestees which will help in the solution of crime. However, it is necessary to be equally alert to ensure that interviews and interrogations conform to legal standards. Carelessness can v...

L 4500 INTERVIEWS / INTERROGATIONS: O#icers will remain alert to gather information from witnesses, suspects or arrestees which will help in the solution of crime. However, it is necessary to be equally alert to ensure that interviews and interrogations conform to legal standards. Carelessness can very easily result in otherwise good testimonial evidence being declared inadmissible. Therefore, o#icers will interview, interrogate or otherwise question persons in accordance with the law and established procedures of the Department. PROCEDURE L 4501 INTERVIEWS / INTERROGATIONS - DEFINITIONS AND PURPOSES: The task of gathering information from individuals involves the use of two general techniques: interviews and/or interrogations. For purposes of this manual, the definition for each technique is as follows: _INTERVIEWS: The process by which an o#icer obtains information from a cooperative individual who is not responsible for the incident under investigation but who has personal knowledge of circumstances or facts that are of interest to the Department. _INTERROGATIONS: The process by which an o#icer obtains information from an uncooperative individual who is a suspect, witness or victim of the incident under investigation. An interview is conducted in order to collect any facts relating to an incident to substantiate information obtained from other sources or to provide additional information pertaining to the incident under investigation. An interrogation is conducted in order to establish the extent of involvement of a particular person suspected of committing a crime and/or to obtain information from uncooperative individuals who have knowledge of the incident under investigation. L 4502 INTERVIEWS - LEGAL RESTRICTIONS: When an o#icer has not arrested an individual or otherwise taken the individual into "custody" in a manner which restricts the individual's freedom or ability to discontinue the conversation, then the o#icer may ask whatever questions are necessary and pertinent. The key in this circumstance is custody. Where there is no "custody," the law places no restrictions on questioning. An example of an unrestricted situation is when an o#icer talks to an individual in a voluntary, non- custodial setting about crime conditions or leads. L 4503 INTERVIEWS - AUTHORITY AND METHOD: O#icers will, when possible, interview any person who may have the potential to supply information that relates to an incident under investigation. Interviews should be conducted at a place that is convenient and familiar to the person being interviewed as soon after the incident as is possible and practical. O#icers will strive to conduct interviews in a manner which is low pressure, informal and causes the least amount of inconvenience to the person being interviewed. L 4504 FACTORS AFFECTING WITNESSES: O#icers will determine that each witness, or other person interviewed, possesses the following essential elements:  _PRESENCE AT THE SCENE: Was the person to be interviewed present during the event, or portion of the event, under investigation? _AWARENESS: Was the person to be interviewed conscious of the event, or a portion of the event, which prompted the investigation? _OBSERVANT: Was the person to be interviewed attentive to the details of the incident? _NARRATIVE ABILITY: Is the person capable of discussing the observed event in a manner that is understandable and complete? O#icers will note the condition of witnesses, their relationship to the incident under investigation and any other information that would establish the credibility of the person being interviewed. L 4505 INTERROGATIONS - LEGAL RESTRICTIONS: When an o#icer acts to exert authority and/or control over a person in a manner which restricts the person's freedom to act, then a custody situation exists and legal restraints on questioning arise to protect the person's rights in regards to self-incrimination and assistance of counsel. The point where custody occurs is determined by the circumstances surrounding the interrogation as interpreted by a "reasonably objective person". The beliefs or intent of the o#icer and/or the suspect are not considered. Factors that are considered when applying the "reasonably objective person" test are as follows: _PLACE OF QUESTIONING: When conducted at a police station, in police vehicles, at jail or in a prosecutor's o#ice, may lead to a conclusion that "custody" has occurred. _TIME OF QUESTIONING: When conducted during odd hours. _PERSONS PRESENT: The removal of a person from the presence of family, friends, or the presence of several o#icers, may indicate a "custody" interrogation. _PHYSICAL RESTRAINT USED: Any type of physical restraint invariably leads to finding of "custody". _ORDERS TO PERFORM TASKS NOT REQUIRED: Any orders by the o#icer to do something that the law does not require is indicative of custody. EXAMPLE: Ordering a person not to leave a room _LENGTH AND FORM OF QUESTIONING: Lengthy questioning consisting of accusatory statements, confrontation with witnesses or evidence and leading questions may lead to a finding of "custody". _DEMEANOR OF OFFICER: When an o#icer is accusatory and confronts a person with alleged guilt, the "custody" finding may occur. Custody situations that involve some restraints on questioning include, but are not limited to, the following. L 4506 INVESTIGATIVE QUESTIONING: An o#icer may question persons for purposes of obtaining information such as name, address, telephone numbers, occupation and other identifying data without advising such persons of their constitutional rights. In addition, suspicious persons may also be asked to explain their presence and conduct without an o#icer having to advise them of their rights. However, whenever probable cause to arrest develops and the o#icer intends to restrict the freedom of the suspect while continuing to ask questions, or the questioning has become sustained and coercive rather than brief and casual, advisement of rights is conducted in accordance with Section L 4510 "Warnings Prior to Interrogation". The point where questioning becomes "sustained and coercive" is di#icult to establish. However, when the questions begin to relate to a specific crime and the questioning has become accusatory and continuous, then a "sustained and coercive" condition probably exists. L 4507 "CUSTODY" OF JUVENILES: Juveniles will be advised, as soon as possible and when practical, of their constitutional rights when taken into custody for any one of the following: _A violation of 601 or 602 Welfare and Institutions Code _A violation of a court order _Escape from a court-ordered detention facility or place of commitment The juvenile will be admonished in accordance with Section L 4510 "Warnings Prior to Interrogation" L 4508 "CUSTODY" OF ADULTS: Whenever an o#icer arrests or otherwise takes "custody" of an adult person, and the o#icer intends to question such person about incidents, actions or conduct which is criminal in nature, then the o#icer will advise the person arrested of their constitutional rights in accordance with Section L 4510 "Warnings Prior to Interrogation". L 4509 "CUSTODY" OF INTOXICATED DRIVERS: The tasks involved in processing intoxicated drivers require not only a "Miranda" warning prior to questioning but also an admonishment pertaining to the chemical test to determine the degree of intoxication. These two admonishments, when conducted at a processing area, often confuse the arrestee as to when the presence of an attorney is allowed. To avoid confusion, o#icers will, when practical, conduct a "Miranda Warning" in accordance with Section L 4510 "Warnings Prior to Interrogation" before transporting the arrestee from the scene of the arrest. L 4510 WARNING PRIOR TO INTERROGATION: Revised 11-20-20 Each o#icer will always carry the Department issued Miranda Warning Card Form 200-56. When necessary, required, or appropriate, the arresting o#icer will notify the person to be Line/Operations Procedures Property of San Jose Police Department For O=icial Law Enforcement Use Only Page 471 DM2024 041024 questioned of such person's constitutional rights by reading out loud from the Miranda Warning Card. O#icers will be prepared to testify in court. NOTE: Per Duty Manual section L 3012.5 - INTERROGATION OF LAW VIOLATORS AGE 17 AND YOUNGER, o#icers shall ensure juveniles 17 years of age or younger consult with legal counsel in person, by telephone, or by video conference prior to a custodial interrogation, and before the waiver of any Miranda rights; the consultation may not be waived. O#icers may obtain a custodial statement from a youth 17 years of age or younger without legal counsel only if both of the following criteria are met: (1) The o#icer reasonably believes the information they are seeking is necessary to protect life or property from an imminent threat. (2) The o#icer’s questions are limited to those reasonably necessary to obtain the information. L 4511 WAIVER OF CONSTITUTIONAL RIGHTS: Before statements made by suspects become admissible in court, the prosecution must o#er evidence to prove the suspects were not only advised of their rights as outlined above but also that they understood the advisement and, having been so advised, knowingly and intelligently waived those rights. This can be an "implied" or "express" waiver based upon the response of the suspect. An "implied waiver" is obtained once a suspect has been informed of their rights, demonstrates that they understand those rights and then answers your questions. In this case, no question is asked regarding the suspect's desire to waive their rights or to answer questions. The questions are asked and once they begin to answer, an implied waiver has been obtained. The California and United States Supreme courts have ruled that implied waivers are valid and meet Miranda requirements. An "express waiver" is obtained once a suspect has been informed of their rights, demonstrates that they understand those rights, and then the suspect states that they wish to waive their rights and answer questions. To obtain an express waiver one of the following questions is asked: _Do you want to talk about what happened? _Do you want to tell your side of the story? _Do you want to go ahead and talk to me? In the past, all Miranda waivers were express waivers. They are less problematic in court as there are fewer issues to litigate, and express waivers are more familiar to judges, defense attorneys and prosecutors. Knowing this, o#icers should seek express waivers whenever possible. OTHER TYPES OF WAIVERS: The following are some examples of other types of acceptable waivers: _WAIVER FOLLOWED BY STATEMENT: An acknowledgement by a suspect that such suspect understands, followed closely by a statement, is held to be a waiver. _NON-VERBAL WAIVERS: Nods and shrugs seem to be su#icient, absent coercion. O#icers should, however, strive for a verbal response. Gestures are subject to di#erent interpretations and leave too much room for interpretation. WRITTEN WAIVERS: The signing of a written waiver is a good waiver if the suspect isliterate. REQUEST TO TALK TOATTORNEYLATER: A desire to talk to an attorney in the future,while manifesting a willingness to answer questions now, without counsel,is a waiver. When a suspect has indicated a desire to remain silent and/or see a lawyer before answering anyquestions,interrogation should cease.Undercurrentcaselaw,oncea suspectexpresses his desire to remain silent, questioning must stop.Any evidence or statements obtained afterthat point are inadmissible in court. L 4512REFUSAL FOLLOWED BY CHANGE OF MIND:O#icersmay question a suspect who originallyrefused to "waive" whenever the suspectinitiates a requestto talk.O#icers will re- advisesuch suspectsof their constitutional rightsand obtain a waiver in accordance with Section L 4510 and L 4511 priorto commencing asuspect-initiated interrogation. L 4513RECORDING OF STATEMENTSIN CRIMINAL MATTERS: Revised 08-03-20 Sworn personnel will digitally record all statementstaken in the course of a criminalinvestigation from suspects, victims and witnesses (regardless of age).This requirementapplies during regular on-duty assignments and during uniformed secondary employmentalike. Recordings will bemade using a Department issued device. Therecording(s) will beretained as part of the case and uploaded as evidence regardless ofitsevidentiary value. Ifthe department member is preparing a crime report,supplementalreport or equivalentreport in connection with the investigation, thefollowing details of therecording will be included in that report: An indication that a recording was made. The date and time of therecording. The person(s) recorded. The reasonfor the recording. In orderto assist investigators in the preparation of cases, o#icersshould include a preamble to their audio-only recorded statements. The use of a brief introductory statement aids in theidentification ofrecordedstatements and allows forthe e#icient assembly of a criminal case.If the recording ismadewith a Body-Worn Camera,the preamble isrecommended if contextis needed for clarification, but not required, or notes may be attached to the evidence file.The statement will include the case number, date, time and location and the namesof theo#icers and subjects that are present during the interview. For example: “Case number 15-001-0123, the date is January 1, 2015 and the time is 1315 hours. Thisis O#icer Smith, and I am interviewing witness Jones in front of 123Main St. in theCityofSan Jose.” L 4514 RECORDING OF STATEMENTS IN NON-CRIMINAL MATTERS: Added 08-03-20 Recordings made in non-criminal matters will be made using a Department issued device. When a contact is of a non-criminal nature and circumstances indicate that a “confidential communication” is or is about to take place, the o#icer intending on recording it will notify the person(s) being contacted of their intention to record the conversation. If the person(s) being contacted objects to being recorded, the o#icers will not record or will immediately stop recording the contact. This section does not prohibit the recording of an administrative interrogation of a peace o#icer as provided in The Peace O#icer’s Bill of Rights, Government Code Section 3303(g). L 4515 SURREPTITIOUS RECORDING OF STATEMENTS: Added 08-03-20 Surreptitious recordings will be made using Department issued devices. O#icers may make surreptitious recordings of conversations when the conversation is part of a criminal investigation or part of a non-criminal public contact in which there is no expectation of a “confidential communication” as defined in Penal Code 632(c). Department members will not make surreptitious recordings of other department members except when necessary in a criminal investigation.