The sine qua non of motions to suppress statements – pursuant to a Miranda analysis – is custody. [I say “pursuant to a Miranda analysis because alleging a Miranda violation is not the only way to get at a harmful statement. You can try to get it suppressed as the fruit of an unlawful arrest, for example.] What does that mean? It means that if your client was not in custody at the time that he made his statements, there can be no Miranda violation. Miranda only applies to custodial interrogation. This also means that there can be no Miranda violation if there was no interrogation. More on both of these.
Establish Custody, or Your Miranda Challenge Fails
In order for Miranda to apply, your client must be in custody. Keep in mind that this is an objective, not a subjective, test. Whether or not the officer intends for your client to be in custody is irrelevant. What matters is whether a reasonable person in your client’s position would believe themselves to be in custody.
So, task one is to put your client in custody. Look at all the surrounding circumstances. How many police were present? Were they in uniform? Did they issue any commands? Was your client in handcuffs?
Perhaps the single most important factor in establishing custody is the location of the interrogation. You’re going to have better luck arguing that your client was in custody if he was questioned at the police station, rather than in his living room. Having said that, the mere fact that the interrogation happened in the station does not automatically mean that the interrogation was custodial. You still need to establish indicia of arrest. Was the client in an interrogation room? Was the door closed? Was the door locked?
[Of course, the police are wise to this analysis. They’ll volunteer in their reports, for example, that your client was offered a glass of water, or that he was never told that wasn’t free to leave. (They won’t volunteer in their reports that he also wasn’t told that he was free to leave.) All you can do is craft the best motion that you can, and bring your issue to the attention of the judge. After that, it’s up to the judge to call the police on it.]Conversely, the mere fact that the interrogation did not happen in a police station doesn’t mean that it wasn’t custodial. [My favorite case on this issue is United States v. Beraun-Panez, 812 F.2d 578, where the court found a custodial interrogation to have taken place “in a remote part of the Idaho range.” (God bless the Ninth Circuit!)]
The bottom line is that, in order to get anywhere with a Miranda motion, you need to establish custody. Look for cases in your jurisdiction that are factually similar to your situation where the court found custody to exist, and go from there.
Miranda Only Applies to Interrogations
An interrogation occurs when the police ask questions that are designed to elicit an incriminating response. “Where are the drugs?” is an interrogation question. “What’s your name?” is probably not.
Things are a little murkier around traffic stops, where the police ask all sorts of questions that straddle the line. Is “Do you have anything in your coat that I should know about?” a question that is designed to elicit an incriminating response? I say yes, but I’m a defense attorney. That’s what I’m supposed to say (although the answer truly is yes).
You can see how the argument plays out on the interrogation end of things. As always, look for cases that support your position.
Now, let’s look at some of the issues that typically arise in Miranda situations.
My Client Wasn’t Mirandized. Do I have a motion?
Possibly. Was your client in custody?
Was your client interrogated, or did he volunteer the information? Miranda doesn’t apply to unsolicited comments.
If your client was both in custody and interrogated without being Mirandized, you should consider running a motion.
My Client Was Mirandized, but he talked anyway. Now what?
There are several avenues to approach this, but bear in mind that they probably won’t be successful. Chances are that, when your case goes to trial, your going to have to neutralize the confession. Still, you should look into the following issues.
1. Was your client’s waiver knowing and intelligent? If not, it was invalid.
How do you know? Well, did the police Mirandize your client properly?
One of the local police departments in my jurisdiction was using a Miranda form that failed to tell defendants that a lawyer would be provided to them free of charge. That’s an essential part of Miranda. Thus, these waivers were invalid because the defendants lacked complete information.
Or, does your client speak English? If not, did the police interpret the form for him?
Or, did the police make him an offer of leniency in exchange for his waiver They can’t do that. If your client signed the form based on a false belief, it’s going to be difficult for the prosecution to argue that his waiver was intelligent.
Or, did the police trick your client into thinking that invocation would be pointless by referring him to a pre-waiver statement? They can’t do that either. In Missouri v. Seibert, 542 U.S. 600, the Supreme Court struck down the police practice of obtaining an un-Mirandized statement from a defendant (which would be subject to suppression) and then Mirandizing the defendant and getting a second statement after reminding him that he had already confessed.
I’m sure there are more avenues of attacking a post-Miranda statement. Use your imagination. Just because your client was Mirandized doesn’t mean the game is up.
2. Was your client’s waiver voluntary?
If the police were to tell your client that either his signature or his brains would be on the Miranda waiver, his signature would be involuntary.
[Note that if you win the motion on this ground, the statement is probably inadmissible against your client, even in the prosecution’s rebuttal case. However, if you win the motion solely on the grounds that your client’s waiver was not knowing and voluntary, the prosecution can impeach your client with it should he contradict it at trial.]3. Did your client invoke his rights after the waiver?
The waiver does not last forever. Your client can stop the interrogation at any time by invoking his right to remain silent or, better, telling the police that he wants to talk to a lawyer.
These requests, however, must be unequivocal. The police can plough ahead if your client makes any remark that is subject to interpretation. Indeed, the law here is so bad for defendants that anything short of “Pursuant to the Fifth Amendment of the United States Constitution, I invoke my right to remain silent and my right to an attorney” will likely be seen as equivocal. Unbelievably, the act of remaining silent is insufficient to invoke your right to remain silent. See Berghuis v. Thompkins, 560 U.S. 370 (2010).
Also, be aware that after invoking his rights, your client can re-authorize the interrogation by re-initiating contact with the police. For example, I know a case where a judge held that a client invoked his right to remain silent when he said “I speak no more,” and laid his head on the table. The judge then ruled, however, that the client re-initiated contact when, moments later, he raised his head and said, “I’m fucked. Aren’t I?” [Any guesses as to what the answer wound up being?]
Neutralizing the Confession
I’ve got to tell you, chances are you’re going to have to deal with that confession at trial – especially if it’s a serious charge. Judges don’t like suppressing evidence, and there’s no piece of evidence that they hate suppressing more than your client’s statement.
So, go ahead and run your motion, but don’t get any big ideas. Chances are, that confession is coming in.
Oh no! The Confession is Coming In! Now What?
First, don’t panic. You have options. Here are a couple:
1. Incorporating the confession into your theory of the case.
Is the confession really that bad? Can you work with it? Can you tell a story of innocence that includes the confession?
2. Claiming that the confession was false.
False confessions happen. As the number of persons exonerated by DNA increases, the general public is becoming more and more aware of this problem. Voir dire on it. See if you can get a jury that is receptive to the notion. Then, cross the cop on the interrogation techniques that he employed on your client.
Most cops use the Reid Technique of interrogation. [You can find details on it here.] Cross on that. Many jurors will be surprised – and upset – by the deceptive and coercive practices that the police use during many interrogations.
[Of course,if you get the chance to take a Reid course, do. Knowledge of the technique can lead to some blistering cross examinations of the interrogating officer.]You can also claim that your client lied during the interrogation because he thought he’d get some benefit from it: a reduced charge, a better deal for his girlfriend, whatever.
Trying a case with a confession is hard. There’s no question about it.
Lucky for your client, his lawyer is ingenious.