State Supreme Court to consider scope of Miranda protections in Allen case

Ubi jus ibi remedium.

It sounds like the incantation of an Unforgivable Curse from the "Harry Potter" novels, but it's actually a longstanding tenet of Anglo-American common law. Translated from Latin, it means: "For every wrong, there is a remedy." The California Legislature has enacted this phrase into positive law by making it one of many "maxims of jurisprudence" (in California Civil Code section 3523).

But how far can California courts go in implementing this maxim? Do they have a free-ranging authority to right wrongs and to reach outcomes that are "fair?" In other words, if the regular application of the constitution, a statute or a common law doctrine offends a court's sense of fairness, may the court depart from that law to reach the fair result?

That is the issue lurking beneath the California Supreme Court's grant of review in People v. Allen, No. S286520.

The issue does not come up often.

Constitutional provisions, statutes and common law doctrines are usually designed to produce just results, so they typically do. Thus, in the usual run of cases, there is no tension between what the law requires and what is just.

The issue also does not arise in those instances where the legislative branch has explicitly empowered courts to decide what is "fair." For instance, California's Unfair Competition Law bars "unfair competition," but defines it as any "business act or practice" that is (1) "fraudulent," (2) "unlawful," or (3) "unfair."  Cal. Bus. & Prof. Code § 17200. By using "or," the Legislature "ma[de] clear that a practice may be deemed unfair even if not specifically proscribed by some other law," and thus "specifically grant[ed]" courts the power to decide when a business practice is "unfair."  Cal-Tech Commc'ns, Inc. v. Los Angeles Cellular Tel. Co., 20 Cal.4th 163, 180-81 (1999); Capito v. San Jose Healthcare Sys., LP, 17 Cal.5th 273, 284 (2024).

And the tension does not exist where the courts, in the exercise of their authority to develop the common law, are able to account for fairness considerations. For example, although the California Legislature generally provides that each person is "responsible ... for an injury occasioned to another by his or her want of ordinary care or skill in the management of [their] property or person," California Civil Code section 1714(a), the task of defining the scope of that statutorily imposed duty falls to the courts. Courts have undertaken that task by asking whether the recognition of a duty of care in a particular situation would further seven different factors set forth in Rowland v. Christian, 69 Cal.2d 108 (1968). These so-called Rowland factors are (1) "the foreseeability of harm to the plaintiff," (2) "the degree of certainty that the plaintiff suffered injury," (3) "the closeness of the connection between the defendant's conduct and the injury suffered," (4) "the moral blame attached to the defendant's conduct," (5) "the policy of preventing future harm," (6) "the extent of the burden to the defendant and [the] consequences to the community of imposing a duty to exercise care with resulting liability for breach," and (7) "the availability, cost, and prevalence of insurance for the risk involved." Rowland, 69 Cal.2d at 113; Cabral v. Ralphs Grocery Co., 51 Cal.4th 764, 771, 781 (2011). The application of these factors is designed to help courts design which duties of care are the most "'fair or workable.'" Brown v. USA Taekwondo, 11 Cal.5th 204, 222 (2021); Vasilenko v. Grace Family Church, 3 Cal.5th 1077, 1088 (2017).

The power of the courts to inject fairness considerations into their analyses is more curtailed when it comes to criminal law.

That is partly because the job of defining crimes belongs only to the Legislature; the courts are prohibited from fashioning crimes, even if the absence of an available crime lets a bad actor go unpunished. In re Brown, 9 Cal.3d 612, 624 (1973).

To be sure, courts have a wider latitude when defining the scope and meaning of the constitutional provisions establishing the procedural aspects of criminal proceedings -- most notably, the Fourth, Fifth, Sixth and Fourteenth Amendments. The Fourteenth Amendment's guarantees of the equal protection of the law and due process are broadly phrased, but are deferential to the legislative body (usually employing only rational basis review), People v. Williams, 17 Cal.5th 99, 123-24 (2024), and applicable only where a more specific constitutional procedural provision is not already implicated, Albright v. Oliver, 510 U.S. 266, 276 (1994) (Scalia, J., concurring); Graham v. Connor, 490 U.S. 386, 395 (1989).

This is where Allen arises.

In Allen, a criminal defendant was arrested for a gang-related shooting, was informed of his Miranda rights, and invoked his right to remain silent. The officers then placed the defendant in a cell with an undercover officer, who struck up a conversation with defendant in which defendant implicated himself in the crime. The Court of Appeal in Allen rejected defendant's claim, adhering to the earlier case of People v. Orozco, 32 Cal.App.5th 802 (2019).

Orozco involved very similar facts. There, the police questioned the defendant, during a Mirandized interrogation, about the death of his six-month-old child; the defendant repeatedly asked to speak with an attorney. The police stopped questioning the defendant directly, but allowed him to speak with his girlfriend (who was also the infant's mother) after reminding her that she had "a right to know" what happened to her child. After one interruption from officers reporting that the child had "died at the hands of [an]other" and another interlude where the officers pulled the girlfriend aside to tell her that the defendant had refused a lie-detector test in order to "stimulate conversation" between her and the defendant, the defendant finally confessed to the girlfriend that he had killed the child. The defendant moved to suppress his confession as unconstitutionally obtained.

Orozco rejected the defendant's claims that the police conduct offended Miranda v. Arizona, 384 U.S. 436 (1966) or due process. In finding no violation of Miranda, Orozco reasoned that the prohibition against further questioning of a suspect after the suspect invokes the right to counsel under Edwards v. Arizona, 451 U.S. 477 (1981) only applies when the suspect is subject to further "interrogation," and that under Illinois v. Perkins, 496 U.S. 292 (1990), a suspect is not being "interrogated" for Miranda purposes unless he knows he is speaking with law enforcement (because Miranda's raison d'etre is to protect against the compelling psychological pressures that are part and parcel of "custodial interrogation" by police, which exist only when a suspect knows he is subject to such interrogation). Orozco, 32 Cal.App.5th at 812-15. Orozco frankly acknowledged that the "police conduct" in the case was "deplorable," but declined to extend Miranda to "reach the noncoercive police conduct in this case" because doing so would "untether Miranda from its purpose" and turn it into a "free-floating bulwark against unfair police tactics."  Id. at 816-17. In finding no due process violation, Orozco reasoned that due process protects against confessions where a suspect's will is overborn and, as a result of that coercion, involuntary. Because due process did not, under existing precedent, bar non-coercive police trickery, Orozco reasoned that the conduct in this case did not independently violate due process. Id. at 819-20.

Because they involve the same issues, Allen is a stand-in for Orozco. (And, in the interest of full disclosure, Orozco is an opinion I penned.)

In the intervening years, the Supreme Court has flirted with reviewing the issues presented in Orozco. In 2019 and again in 2021, Justice Goodwin Liu penned opinions dissenting from the denial of review of the subsequent cases following Orozco. See People v. Valencia, 2019 Cal. LEXIS 9091 (Dec. 11, 2019) (Liu, J., dissenting); People v. Goldbolt, 2021 Cal. LEXIS 4606 (June 30, 2021) (Liu, J., dissenting). Justice Liu's dissenting opinion in Valencia closed with a "willing[ness] to consider" whether "deceptive interrogation tactics to deliberately circumvent a suspect's invocation of Miranda rights" "independently violate" due process. 2019 Cal. LEXIS at *20-21.

Thus, the issue under review in Allen has been long percolating. More to the point, it may give the Supreme Court the opportunity to answer the question posed in the Valencia dissent--whether the noncoercive tactics of the police in subjecting a suspect who has invoked their rights under Miranda to further, stealth questioning is so unfair that it warrants applying Miranda or constitutes a violation of due process.