Thursday, April 2, 2020
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Ninth Circuit:
Officer’s Warning That It Would ‘Look Worse’ If Omitted Fact Came Out Later Was Proper
By a MetNews Staff Writer
An admonition by a police officer that it would “look worse later” if a suspect did not presently make a full disclosure in connection with his crime was not coercive, the Ninth U.S. Circuit Court of Appeals has said, affirming the denial of a suppression motion.
The ruling came in a memorandum opinion filed Tuesday. In that opinion, a three-judge panel reversed the conviction of Edward Cragg for receipt and distribution of child pornography, holding that the record shows he was not advised of possible penalties for his crime before he waived his right to counsel.
With respect to the questioning of him before his arrest, the appeals court found no misconduct on the part of Detective Timothy Redd of the Turlock Police department.
Redd’s Advisement
Redd told him:
“Um, because what’s gonna happen next is, um, after we’re done talkin’, obviously, we’re gonna do imaging on all your systems, all your hard drives, everything. And if it’s something that you haven’t told us, it could look worse later on down the road. So, now’s the time to say, hey, you know, here’s everything. Here’s what I did. Here’s what I do. Here’s why I am doin’ this type of thing or whatever the case is.”
Police in the Stanislaus County cities of Turlock and Ceres conducted an investigation in tandem with the Federal Bureau of Investigation, and Cragg was prosecuted in the U.S. District Court for the Eastern District of California.
Conduct Permissible
The opinion says:
“Cragg asserts that Redd threatened him with harsher treatment if he invoked his right to remain silent. However, considering those statements in context. Cragg had already been talking to the officers and was not attempting to invoke his right to remain silent. Rather, the statement is best interpreted as instructing Cragg to be honest. Redd was merely warning Cragg, who was already talking with him. that if he was not honest in his statements to police, it could make the situation he was in worse. That conduct is not impermissible under our precedent. Considering the totality of the circumstances here. Cragg’s statement was voluntary.”
(Great Britain’s version of the Miranda warning expressly warns of a danger of invoking the right to silence; it includes the advisement that “it may harm your defence if you do not mention when questioned something which you later rely on in court.”)
The case is United States v. Cragg, 18-10343.
20-Year Sentence
Cragg was sentenced by Chief U.S. District Court Judge Lawrence J. O’Neill on Sept. 4, 2018, to 20 years in prison, to be followed by 10 years of supervised release. Cragg will be required to register as a sex offender and to pay $3,000 to $5,000 in restitution to each of several victims whose images he distributed.
O’Neill found that Cragg was unremorseful and that his conduct was “beyond destructive” to the victims.
The U.S. Attorney’s Office for the Eastern District of California said at the time of sentencing:
“Evidence introduced at trial established that from approximately August 1, 2015, through March 1, 2016, Cragg used a file-sharing program to search for and save more than 130 child pornography videos. Some of the videos depicted images of infants or toddlers being subjected to sadistic or masochistic abuse.”
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