Talk Nice, Think Mean Works Again

by | July 28, 2022

United States v. Johnson, 2022 WL 2712187 (8th Cir. 2022)

A woman reported that Michael Joe Johnson, her half-brother, had performed a sex act on her the previous day while she was asleep at his home after a night of drinking. She told officers she awoke as Johnson was completing the sex act. Two investigators went to Johnson’s home and knocked on the door.

When Johnson opened the door, they told him that “they needed to talk with him about allegations” against him. The investigators “asked if he would come out with them and talk.” Johnson agreed and sat in the front passenger seat, with one investigator sitting at the wheel and the other in the back. Johnson was not handcuffed or otherwise physically restrained.

Once inside the vehicle, the investigators told Johnson that his half-sister had reported he had sexually assaulted her. Johnson denied the allegation. He explained that his half-sister and a friend had visited Johnson’s home and that his half-sister had been drinking. After the friend left, his half-sister fell asleep in one of the bedrooms. Johnson said “he was never around” his half-sister after she went to bed and he denied having sex with her. The investigators then asked Johnson if he had any questions for them. Johnson did not. He opened the unlocked car door and got out. The investigators requested a DNA sample, and Johnson agreed to provide one.

Once lab results showed that Johnson’s DNA matched the DNA found on the victim’s vaginal swabs, the investigators asked Johnson for a follow-up interview. He agreed. The second interview also took place in the investigators’ vehicle, with one investigator in the driver seat, Johnson in the front passenger seat, and the other investigator in the back. Again, Johnson was not handcuffed or otherwise physically restrained. The vehicle doors and windows remained unlocked, and at one point Johnson rolled down the passenger-side window.

In this case, the investigators’ patience and careful efforts to not create custody led to admission of Johnson’s statements.

When the investigators told Johnson about the DNA test results, he denied that it could be him. Once again, the investigators gave Johnson an opportunity to ask them questions. They did not arrest Johnson at that point. When the interview ended, Johnson got out and walked away.

Johnson was charged with federal sex crimes. Johnson asked the judge to suppress the statements he made during his two interviews. The trial court denied the motion. He was convicted by a jury. Johnson appealed, claiming he was in custody and was interrogated without the benefit of a Miranda warning.

The appellate court upheld the denial of the suppression motion, holding that Johnson was not in custody during his interviews. Johnson retained freedom of movement throughout the interviews. The investigators did not handcuff him, the doors remained unlocked, and he got in and out of the front seat of the vehicle on his own. Johnson voluntarily agreed to both interviews. Moreover, the investigators did not employ strong-arm or deceptive tactics but simply were candid with Johnson about the evidence against him. It was an excellent example of the philosophy of “talk nice, think mean.”

In many cases, officers rush to arrest someone and thus create a circumstance of custodial interrogation. In this case, the investigators’ patience and careful efforts to not create custody led to admission of Johnson’s statements.

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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