Cop Questions About Suspect “Helping Himself Out” Interrogation, But Harmless Error

US v. Bernard: Bernard was driving a Jeep that was pulled over because he was “driving erratically” and an officer feared he was impaired. After a patdown didn’t uncover anything suspicious, Bernard went and sat in the officer’s car. Conversation with Bernard eventually consent to search of his Jeep, which uncovered several firearms and 53 mason jars full of marijuana. Bernard was arrested, not Mirandized, and made inculpatory statements which the Government eventually conceded it could not use against him. However, while being transported to jail, the officer told Bernard that “he might want to think about trying to help himself out,” which led Bernard to make more inculpatory statements. After motions to suppress the statements and physical evidence were denied, Bernard was convicted at trial and sentenced to 62 months in prison.

On appeal, the Fourth Circuit affirmed the conviction. The court quickly dealt with the Fourth Amendment challenge on the basis that there was no reasonable suspicion upon which to stop Bernard or that the officer took longer than necessary to complete the traffic stop. As to the statements made on the way to jail, the court noted that the question was whether the officer’s statement during the trip “constitutes the equivalent of express questioning and therefore triggers Fifth Amendment protection.” The court held that it was, because in “light of the friendly conversation” between the officer and Bernard up to that point, the statement in the patrol car “lost the sting of a traditionally coercive custodial interrogation.” As a result, the officer “should have known that his invitation to cooperate was reasonably likely to induce Bernard to provide him with even more self-incriminating information.” However, the error was harmless because the “self-incriminating statements Bernard made are of small consequences given the amount of marijuana recovered and the guns.”

Judge Niemeyer concurred in the judgment, arguing that on the Fifth Amendment issues that the officer’s statement “was only friendly advice about future conduct . . . and was not reasonably likely to elicit an inculpatory response at that time.”