By Darren Smith, Weekend Contributor.
There was an interesting case last month before the Washington Supreme Court where the court was asked to determine the admissibility of evidence obtained during the defendants’ booking process related to criminal street gang affiliation.
Defendants in the case, Ricardo Juarez Deleon, Anthony Deleon, and Octavio Robledo moved to suppress evidence gathered by the state obtained through questions relating to the alleged involvement in gang activity while in the furtherance of a crime, a sentencing enhancement and a status in of itself that can be in violation of law or subject a defendant to revocation of probation and other court imposed restrictions.
A legitimate state purpose exists in asking arrestees if they are gang-affiliated or have hostility toward other inmates for the purpose of order and the safety of staff and the inmate population. It is well known that members of rival gangs housed together lead to a probability of fighting and disruption. A question remains if an arrestee should a choice between answering that they are gang-affiliated to secure a protection through separate housing and remaining silent and face retaliation from other inmates. The petitioners argue this constitutes duress where they are unlawfully required to make incriminating statements to protect their safety.
The facts of the case are alleged in the ruling as follows:
Ignacio Cardenas was outside his home in Sunnyside with his cousin and a friend around 11:00 p.m. waiting for another friend, Jose Barajas. They saw a silver Ford Taurus drove by. Thinking that the car belonged to a friend, Cardenas’s cousin flashed a sign associated with their gang at the car. The car did not belong to a friend, and after driving by, it made a U-turn and drove by the house again. Several shots were then fired from the car, hitting Cardenas. He survived, but lost one of his kidneys.
The friend, Barajas, saw the shooting as he drove up to Cardenas’s house, and he began following the Taurus. He lost sight of the car, but then caught sight of a car that he believed to be the same silver Taurus. He continued following the car and notified the police that he was following the car that had been involved in the shooting. The police caught up and began chasing the Taurus as well. At one point an officer following the Taurus saw an object fly past his car window that he thought might be a gun; another officer indicated that he saw it fly from the window of the silver Taurus. The police eventually put out spike strips and were able to stop the Taurus. Some officers then returned to search the area where the officers observed the object being thrown from the Taurus, but they did not find anything.
Anthony DeLeon was in the driver’s seat of the Taurus. His brother Ricardo DeLeon was in the backseat, and their friend Octavio Robledo was in the front passenger seat. In the car, police found two red bandanas, cans of beer, and marijuana paraphernalia, but no guns or shell casings. The three were arrested and each charged with three counts of first degree assault while armed with a firearm with an intent to benefit a criminal street gang.
The three were tried together as codefendants. The State’s theory of the case was that the shooting was gang related. The victim, Cardenas, is a member of the Little Valley Locos/Locotes gang, which is affiliated with the larger Sureño gang. Sureño-affiliated gangs generally wear blue, and they are rivals of the Norteño affiliated
gangs, who generally wear red. The State argued that the three defendants were affiliated with a Norteño-affiliated gang, and that the shooting was a gang related
act of retaliation.
The trial judge also allowed the prosecution to present statements made by the three defendants during the jail booking process. Corrections Corporal Gabino Saenz of the Sunnyside jail testified that he is tasked with determining where to safely house new inmates. Many factors go into this determination, including whether someone might be targeted for violence because of age, gang involvement, or mental illness. As part of the booking process, a corrections officer fills out a “Gang Documentation Form” if an inmate indicates that there is someone that they cannot be safely housed with. Importantly, the form is filled out only if the individual cannot be safely housed with someone else.
In the Sunnyside jail, the primary groups that have to be housed separately are Norteños and Sureños. When going through the process, Ricardo DeLeon indicated that he was affiliated with a Norteño gang but that he was not active. Anthony DeLeon and Octavia Robledo both indicated affiliation with a Norteño gang. All three indicated they could not be safely housed with Sureños. The defense attorneys objected to admission of these defendants’ statements regarding gang affiliation gathered through this process, but the trial judge allowed it.
The trial court convicted each of the three defendants of three counts of first degree assault. The jury found that each crime was committed while the defendant was armed with a firearm, and that each crime was committed with an intent to benefit a criminal street gang. Anthony DeLeon was given an exceptional sentence of 1,002 months, and Ricardo DeLeon and Octavia Robledo were each given an exceptional sentence of 639 months.
[T]he Court of Appeals found that the trial court erred when it ruled that the defendants’ statements on the jail intake forms regarding gang affiliation were voluntary for purposes of the Fifth Amendment. The Court of Appeals explained that “the State’s own trial evidence demonstrated that there was a real and ongoing danger of violence and retaliation between rival gangs that presented these defendants with a credible threat of harm if housed with rival gang members in the Sunnyside jail.” As a result, the statements were made by the defendants to avoid a very real risk of danger, and thus were not made voluntarily.
The Supreme Court sided with Division III of the Court of Appeals’ decision as indicated in its analysis:
The gang information from the jail intake forms was not gathered voluntarily, and thus should not have been admitted as evidence The Fifth Amendment provides that a defendant shall not “be compelled in any criminal case to be a witness against himself.” U.S. CONST. amend. V. When determining whether a self-incriminating statement was compelled or made voluntarily, courts look to the totality of the circumstances. State v. Unga, 165 Wn.2d 95, 100-01, 196 P.3d 645 (2008). The United States Supreme Court has explained
that when a defendant’s self-incriminating statements are made in exchange for protection from credible threats of violence while incarcerated, the statements are coerced and involuntary for purposes of the Fifth Amendment. Arizona v. Fulminante, 499 U.S. 279, 287-88, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991). In that case, the defendant faced a credible threat of violence from other inmates because they suspected him of killing a young girl. !d. at 283, 286-87. An informer offered to protect him from that violence if he admitted to the informer that he killed the girl. The United States Supreme Court held that because the subsequent confession was made to avoid a credible threat of violence, it was coerced and involuntary.
In this case, the defendants answered questions from jail staff regarding their past or current gang affiliation as part of the jail booking process. As explained above, jail staff ask these questions so they can provide safe housing for jail inmates and protect them from the violence that often occurs when people affiliated with rival gangs are housed together. The form is filled out only if the person indicates that there is someone he/she cannot be safely housed with.
As explained by the Court of Appeals, “The totality of circumstances would lead an inmate being booked into the Sunnyside jail to believe that in order to avoid a real risk of danger posed by being housed with rival gang members, he would need to answer yes when asked if there were certain individuals or groups he could not be housed with, and then provide the information for the Gang Documentation Form.” DeLeon, 185 Wn. App. at 204. We agree. The jail staff explained that there is a very real risk of violence, which is the very reason that jail staff ask new inmates these questions. We do not see how statements made under these circumstances could be considered voluntary. The admission of these statements was a violation of the defendants’ Fifth Amendment rights.
We wish to emphasize that asking these questions was not a constitutional violation. Indeed, jail staff may be required to ask these questions in order to meet their constitutional duty “‘to protect prisoners from violence at the hands of other
prisoners.”‘ Farmer v. Brennan, 511 U.S. 825, 833, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994) (quoting Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir. 1988)). The constitutional violation occurred when the State then used the statements gathered under these circumstances against the defendants at their trial.
In its conclusion the Court granted a motion for a reversal and granted a new trial. The ruling was unanimous:
Under the Fifth Amendment, defendants cannot be compelled to testify against themselves. Statements made by the defendants can be admitted only if they were made voluntarily. In this case, the defendants made self-incriminating statements to avoid a credible risk of physical violence. By their very nature, such statements cannot be considered voluntary, and they should not have been admitted. These defendants are entitled to a new trial. Therefore, we reverse these convictions and gang aggravators.
By Darren Smith
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