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Why officers may have crossed a line in initial interview of Mollie Tibbetts’ slaying

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Cristhian Bahena Rivera pleads not guilty in the death of Mollie Tibbetts during his arraignment at the Poweshiek County Courthouse on Wednesday.
Brian Powers, bpowers@dmreg.com

DES MOINES, Iowa – A Iowa sheriff’s deputy first confronted Cristhian Bahena Rivera in the afternoon of Aug. 20, 2018, at the farm where he worked. Less than 12 hours later, authorities arrested him.

Exactly what happened that day is the subject of a legal dispute that judicial experts say could be crucial to the state’s prosecution of Bahena Rivera in the death of college student Mollie Tibbetts, whose body was found in a cornfield a few hours after the arrest.

The next time Bahena Rivera appears in court, a judge will decide if his claims that investigators violated his rights are credible enough to invalidate some of the evidence that state lawyers want to use against him, including incriminating statements.

Bahena Rivera, 25, was charged Aug. 21 with first-degree murder in the death of Tibbetts, who was 20. A hearing on his lawyers’ bid to suppress the evidence, a move to bar the material from being used in trial, had been scheduled for this week but is now set for Aug. 23.

More: Rivera confesses to killing Iowa student Mollie Tibbetts

Tibbetts went missing on July 18 while jogging in Brooklyn, her hometown. A month-long search propelled the young woman’s face into the national and international spotlight.

Bahena Rivera, who led authorities to Tibbetts’ body in the early-morning hours after his arrest, told police that he chased the young jogger after driving past her the evening she disappeared. She threatened to call police, at which point he said he got mad and “blocked his memory.” Bahena Rivera admitted to then finding her body in his trunk, which he took to a field and covered with corn leaves.

Autopsy results show Tibbetts died of “multiple sharp force injuries.”

What happened at the dairy farm and the sheriff’s office

On Aug. 20, Bahena Rivera was approached by law enforcement at a dairy farm outside Brooklyn, where he worked.

When asked if he spoke English, Bahena Rivera said he knew only the basics.

“Would it be possible for us and the officers here to search inside your car?” a federal agent asked Bahena Rivera in Spanish, and he responded yes, according to court documents. Months later, officials confirmed blood found in the trunk matched Tibbetts’.

Authorities at the farm asked Bahena Rivera if he could come with them to speak with them at the  the county sheriff’s office, where they had an interpreter. He was told he could ride with officers, who said they would bring him back to his car afterward.

There was discussion between investigators and Bahena Rivera’s boss at the farm of calling a lawyer, but ultimately, that didn’t happen, court records indicate. One unidentified official said that Bahena Rivera wouldn’t need an attorney.

He was then transported to the sheriff’s office, where they arrived at 3:35 p.m. The interview, including 10 breaks, began at about 5:05 p.m. and ended at 4:15 a.m., according to court records filed by the prosecution.

At 11:30 p.m., Bahena Rivera was read his Miranda rights — including that he did not have to answer questions and could have a lawyer present — and taken into custody after a federal immigration agent who interviewed him over the phone determined Bahena Rivera could be in the country illegally.

Prosecutors say he waived those rights, and the interview continued for another five hours.

What defense lawyers are arguing

Bahena Rivera’s attorneys, in a 29-page motion to suppress evidence filed March 1, argued that Bahena Rivera was not told he had the right to decline to consent to authorities searching his car, was not told about his right to an attorney, made “involuntary” confessions under the promise of leniency and was placed in custody before being read his Miranda rights, so-called because of a Supreme Court case that established the necessity for investigators to advise suspects of their rights.

More: Mollie Tibbetts’ father: Don’t distort her death to advance racist views

Bahena Rivera was not advised of those rights until the second half of his interview with law enforcement, and therefore any confession he made during that time was unconstitutional, defense lawyers say. Even though Bahena Rivera had not yet been arrested during the first portion of the interview, his attorneys argued that he was in custody.

The motion cited what his attorneys called “a number of concerning factors in this case,” including Bahena Rivera’s limited understanding of the English language, his lack of education and the fact that he fell asleep during the interview.

His attorneys also claimed he was offered promissory leniency, or a promise that something can be gained from confessing, which they said can “induce false confessions leading to wrongful convictions of the innocent.”

“Help yourself, do it for yourself, think about you,” one of the officers in the interview told Bahena Rivera, according to an official transcript cited in court records. “Think about your daughter that will need you. Right now, don’t you see that little face of that little girl?”

What prosecutors are arguing

In a 22-page resistance filed May 31, the state argued that the interview was conducted properly and that all evidence gathered is admissible in court.

The search of Bahena Rivera’s car was valid because he granted both verbal and written consent through a federal agent, prosecutors said. While Bahena Rivera was not informed that he had the right to refuse to consent to the search, there were no actions by law enforcement that could be called “remotely deceptive,”  County Attorney Bart Klaver and Assistant Attorney General Scott Brown wrote.

They said Bahena Rivera could not be considered to have been in custody when initially taken to the sheriff’s office because he’d agreed to talk, was given food and drink, wasn’t restrained, had access to his phone and was told he was free to leave if he wanted.

At one point, when asked if they would find anything in his car during the search, Bahena Rivera said that if he had anything to hide, he would have left out the door.

The state also rebutted claims that Bahena Rivera faced a language barrier, arguing that he was interviewed by an Iowa City police officer who is fluent in Spanish and that jail staff have since said he can communicate effectively in English.

Prosecutors wrote that Bahena Rivera directly implicated himself in Tibbetts’ death both before and after his Miranda rights were read and that the discovery of Tibbetts’ body should be included in evidence because it would have eventually been found anyway.

“Once the corn was harvested from the field, the remains of Mollie Tibbetts and her clothing would have been readily visible,” they wrote.

Law experts offer differing evaluations

A suspect’s Miranda rights can be violated even if the person has not been arrested, if the person is in a situation in which a reasonable individual in the same position would believe that he or she was in custody, according to case law.

Robert Rigg, director of the criminal defense program at Drake University’s Law School in Des Moines, said he thinks there are a couple of reasons why prosecutors should be worried.

Bahena Rivera’s defense team has a plausible argument for suppression of evidence because, by Rigg’s interpretation, Bahena Rivera was in custody once the interview at the sheriff’s office began. Even though he was told he could leave, factors such as the number of officers surrounding him in a small room and the nature of the conversation could have led Bahena Rivera to think otherwise, said Rigg, who reviewed court documents in the case. 

James Tomkovicz, a law professor at the University of Iowa with a background in criminal law and criminal procedures, however, said it’s more likely that District Judge Joel Yates will rule in the state’s favor.

More: Mollie Tibbetts case: What we know about the man charged in Iowa student’s slaying

Tomkovicz said that, while he isn’t sure there’s a basis for most of the defense’s claims, he could see an argument to be made regarding Bahena Rivera’s Miranda rights.

But Tomkovicz pointed to the facts surrounding the interview provided by the state as reason for his belief that Bahena Rivera was not in custody. He does believe Bahena Rivera was interrogated, though he said that doesn’t exclusively indicate custodial treatment.

Tomkovicz, who also reviewed court documents before speaking with the Register, said the strongest argument he sees coming from the defense regards involuntary confessions. While he doesn’t think it’s a winning argument, he said it’s still relevant, especially considering the length of the interview.

Prosecutors in court records said that even though Bahena Rivera told authorities during the interview that he was tired, he never said he was too tired to continue the interview.

They also said that the interview was done in a non-coercive, non-confrontational way and that Bahena Rivera was encouraged only to tell the truth, not told specific promises that would result if he told the truth, according to court documents.

Tomkovicz said he tells his students there are two lines of questions to ask to determine whether someone’s will has been broken: What pressures do police and the setting put on the person, and how strong is the person’s will?

The fact that Bahena Rivera is an immigrant in his early 20s who likely has little experience with law enforcement makes him more vulnerable, he said.

However, Tomkovicz said, the government also has a lot of facts to counter any concept that Bahena Rivera is a “weakling.”

For starters, he said, unless authorities pressured Bahena Rivera into letting them search his car, law enforcement did not act incorrectly because officers aren’t required to offer the option to deny consent.

“The law is that you don’t have to know or be told you have the right to refuse; you just have to consent voluntarily,” said Tomkovicz, who called the argument regarding the vehicle search “paper-thin.”

Meanwhile, Rigg raised eyebrows at the state’s argument that Tibbetts’ body would have been found eventually without help.

“When the state starts to argue inevitable discovery, that usually, in my mind, triggers the fact that they think they have a problem in this case,” Rigg said. “The officers may have crossed a line here.”

What are the possible outcomes of the suppression hearing?

The evidence at risk includes Tibbetts’ blood that authorities say was found in Bahena Rivera’s vehicle, statements he made to police during the interview about his interactions with the young woman, and Tibbetts’ body.

If Yates, the judge overseeing the case, decides after the August hearing that Bahena Rivera’s rights were violated and that he was, in fact, in custody throughout his interview, then his confession wouldn’t be admissible, although any resulting physical evidence could be, Tomkovicz said.

But if the judge rules that Bahena Rivera was read his rights at the appropriate time, he could still determine that his statements were made involuntarily, which could mean excluding the evidence gained as a result of the confessions, Rigg said.

And if the judge determines the search of the car was conducted illegally, then evidence gained as a result would also likely be thrown out.

Tomkovicz doesn’t imagine Yates will rule in Bahena Rivera’s favor on any grounds — but he said that a ruling favoring all of the defendant’s arguments, especially regarding involuntary confession, could sink the case: Prosecutors “wouldn’t have enough evidence to convict (Bahena Rivera) if, in fact, all of his claims are valid.”

“I don’t want to speculate as to what would happen, but we think we have a pretty strong case,” said Lynn Hicks, a spokesman for the Iowa Attorney General’s office, who spoke on behalf of prosecutors.

Chad Frese, an attorney for Bahena Rivera, said if a judge rules in favor of the motion, then the interview and all evidence that flowed from it would be suppressed.

“Losing the statement from Mr. Bahena could be fatal to their case,” Frese said.

Follow Anna Spoerre on Twitter: @annaspoerre.

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