Judge puts twist on Miranda rights in drug search

By MICHAEL KITCH, LACONIA DAILY SUN

LACONIA — Although a woman stands charged with possession of illicit drugs after a search of her person found a plastic bag containing several pills, Justice James D. O'Neill III of Belknap County Superior has ruled that an incriminating statement she made during the search cannot be introduced into evidence at trial.

Selina Arnes was arrested by a Belknap County Deputy Sheriff and a United States Marshall on an outstanding Governor's Warrant issued by the Commonwealth of Massachusetts. She was taken to the Belknap County Jail where, according to standard protocol, she underwent an "unclothed search."

When Arnes got down to her underwear, Nicole Mills, the corrections officer, conducting the search noticed she was reaching toward her left breast or left armpit. Hearing what she described as a "crinkling" sound, Mills suspected Arnes was hiding something in her bra. Mills asked her what she was reaching for and Arnes did not reply but continued to reach toward her left breast or armpit. Mills asked a second officer to join her then repeated her question. Arnes replied with an incriminating statement.

Following the incriminating statement, Mills searched her bra and found the drugs. On finding criminal activity within the jail, she referred it to her supervisors, who in turn referred it to the Sheriff's Department.

Arnes, represented by attorney Andrew Livernois, asked the court to suppress her incriminating statement on the grounds she made during a "custodial interrogation" and that she had not been read her Miranda rights, or the right to remain silent before being interrogated in order to ensure that incriminating statement my not be used in criminal proceedings. Consequently, she claimed her rights under the state and federal constitutions were violated and the incriminating statement must be suppressed.

The issue before the court was whether Arnes was subject to a "custodial interrogation," which itself requires that two conditions must be met: first, that she was in custody and second, that she was subject to interrogation.

O'Neill ruled that both conditions were met, dismissing the arguments brought by the state that Mills is not a law enforcement officer pursuing an investigation, that Arnes was not in custody because she was arrested on a Massachusetts warrant and that even if she were in custody, the questioning did not rise to the level of an interrogation. O'Neill ruled that Arnes, who was brought to the jail in handcuffs and searched in a room the size of a small closet was clearly in custody.

In the context of Miranda rights, interrogation refers to either "express questioning or its functional equivalent," which means questions reasonably likely to elect an incriminating response.O'Neill held that Mills's questions, posed to a woman in her underwear standing in a small room before two corrections officers, were functionally equivalent to interrogation. Moreover, he noted that Mills asked the questions in response the Arnes's actions, which aroused her suspicion that she was hiding something.

O'Neill concluded that in the circumstances Arnes was entitled to receive a Miranda warning and since there is no dispute that it was not given, ordered that her incrimination statement be suppressed.