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COMMENTARY ON THE CONFESSION LAWS: A ROAD MAP TO ANALYZING A CONFESSION CASE

By Afshin Farashahi, posted January 17, 2015

INTRODUCTION

One of the first questions counsel will have in a criminal case is what the client said to the police and when he said it. An admissible confession[1] will more often than not lead to a conviction. The attorney representing that defendant is obligated to conduct a thorough analysis of the question of the admissibility of the client’s confession to the police. Although confession cases are usually associated with the Fifth Amendment, other constitutional provisions are often implicated as well.

This commentary will provide a road map for analyzing a criminal case in order to spot grounds on which to move to suppress a client’s statements to the police. The commentary will pose a series of questions followed by a discussion of those questions to guide the practitioner through the legal principles which may form the basis for a motion to suppress. It will then briefly discuss several procedural issues that attorneys typically face in filing suppression motions.

ISSUES TO CONSIDER IN FILING A MOTION TO SUPPRESS

  • Fourth Amendment Issues: Right To Be Free From Unreasonable Searches and SeizuresHow the client came to be questioned in the first place is an important issue that is sometimes overlooked. Often, an attorney focuses on whether the Miranda[2] warnings were read to the client, whether the client validly waived his rights, or whether the client invoked his rights. But the law of search and seizure should always be the first step in analyzing a confession case. Pursuant to the fruit of the poisonous tree doctrine,[3] a statement that is valid under Miranda may still be suppressed if it is a result of an invalid search or seizure.
    • Was the client seized at the time that the statements were made?If the person is considered to have been seized, then the police would need some justification to having seized that person. If the requisite justification is lacking, then resulting statements may be suppressed. If there was no seizure, then the Fourth Amendment is not implicated. The test is whether, under the totality of circumstances, a reasonable person in the suspect’s position would feel free to leave.[4] An encounter that is considered consensual would not require any justification and would not require any Miranda warnings in order for the statements to be admissible. Because of the somewhat vagueness of the concept of what constitutes a seizure, counsel will probably find some circumstances to point to in arguing that the encounter was not consensual.
    • If the client was seized, was the seizure constitutional?If the encounter is considered a seizure, then counsel will have to see if police had a basis to seize the defendant. If the seizure is considered to be an investigative detention, then the police would need to have had reasonable suspicion to have detained the defendant. This is the classic Terry[5] stop where the police can stop and sometimes frisk a suspect based on articulable suspicion. If the requisite reasonable suspicion is missing and the police simply stopped the defendant based on a hunch, then any resulting confession should be suppressed.

      If the duration of the encounter and its circumstances make it the functional equivalent of arrest, or if the person was actually arrested, then the seizure has to be supported by probable cause—a higher standard than reasonable suspicion but less than the beyond a reasonable doubt standard applicable at trials. Counsel should always attempt to point to circumstances that suggest a custodial encounter (functional equivalent of an arrest). These circumstances include the placing of handcuffs, the number of police officers, the duration of the seizure, and what was told to the client while being detained.[6] Such an encounter would require higher justification from the police for the seizure (and would require Miranda to have been administered in order for the statements to be admissible).

    • If the client was illegally seized, has the statement been purged of the primary taint?Counsel should be aware that at times even an illegal seizure may not lead to the suppression of the confession. Courts look at three factors in determining whether the resulting statements have been purged from the original unconstitutional conduct: the closeness in time between the illegal seizure and the confession, any intervening circumstances, and the flagrancy of the invalidity of the illegal seizure.[7]
    • If the statement should be suppressed under the traditional principles, is there still a possibility of admissibility because of the balancing test?In recent years, the U. S. Supreme Court, under the guiding hands of Chief Justice Roberts, has moved the law gradually (some would argue surreptitiously) in certain directions.[8] So, it has been with the search and seizure law. The Court in Herring v. United States,[9] building on previous case law, explicitly introduced a balancing test when it comes to suppressing fruits of illegal seizures. The balancing test essentially looks at the costs of the suppression (almost always high from societal standpoint) against the deterrent effect on future police misconduct. Counsel needs to be prepared to counter the prosecution’s balancing test argument, especially in a case where chances are good that court will find there was a violation of the Fourth Amendment.
  • Fifth Amendment Issues (Miranda): Right to Remain Silent and Right to CounselMiranda warnings are required to be administered when two conditions are met: the suspect is in custody and the suspect is subject to interrogation.
    • Was the client in custody?A consensual encounter and an investigative detention do not trigger the Miranda requirements.[10] The person has to be under arrest or its functional equivalent. The Supreme Court has set out the reasonable person test in determining whether a person is in custody for purposes of Miranda.[11] Numerous factors can be considered in determining whether a person is in custody, including the number of officers present, whether the person was restrained, whether the police had drawn their firearms, whether the person was placed in a police car, and whether police told the person he was free to leave. But the United States Supreme Court has specifically excluded the suspect’s inexperience and age as factors in determining the custody question.[12]
    • Was the client subject to interrogation?The person must be subject to questioning or its functional equivalent before Miranda applies.[13] Police’s statements that are not in the form of a question can still be considered interrogation if the police know or should know that their statements are likely to elicit an incriminating response.[14]
    • Did the client invoke his right to attorney or to remain silent?Assuming that the statements were obtained during a custodial interrogation and that the defendant was advised of his rights, then counsel has to see whether at any time the client invoked his rights. Also, if there has been an invocation of a right, then it must be determined which right—right to counsel or right to remain silent—was invoked.

      A suspect’s invoking his right to attorney means that the police have to stop all questioning.[15] No further interviewing can be done about the particular offense or any other offense.[16] The request for attorney must be unequivocal and clear.[17] The Supreme Court of Virginia has strictly construed this principle. For example, the Court ruled that the following statement was not a clear assertion of the right to counsel: “I’ll be honest with you, I’m scared to say anything without talking to a lawyer.”[18]

      If a suspect has invoked his right to remain silent, then police must cease the interview but may come back at a later time for further questioning.[19] The U.S. Supreme Court has set out four factors to consider when determining whether the police may re-initiate the interrogation: 1) whether the police immediately ceased questioning; 2) whether the police resumed questioning after the passage of a significant period of time; 3) whether the police re-advised the suspect of his rights; and 4) whether the second interrogation dealt with a different offense than the one which was the subject of the first interrogation.[20] The last factor is typically the most important one.

    • If the client has invoked his right to an attorney or to remain silent, did he later re-initiate the interview with the police?Once a suspect invokes his right but further questioning occurs later, one of the issues becomes who initiated the conversation. For example, a suspect who inquires about what is going to happen to him next may be deemed to have re-initiated the interview which he terminated earlier.[21] In this case, the statement would be ruled to be admissible.
    • Do any exceptions to Miranda apply?Even if the person is in custody and being interrogated, Miranda warnings are not required when police work in an undercover capacity,[22] when immediate public safety is involved,[23] and when the questions are considered to be “routine booking questions.”[24]
  • Sixth Amendment Issues: Right to Counsel
    • Had formal judicial proceedings begun when the client made the statement and had the client asserted his right to counsel?Once formal judicial proceedings have begun, then the 6th Amendment right to counsel attaches.[25] This is typically when person has been appointed counsel, has retained counsel, or when indicted.[26]
    • If formal judicial proceedings have begun, did the client validly waive his Sixth Amendment right to counsel?In recent years, the Supreme Court has relaxed the rules regarding police interrogation after the Sixth Amendment right to counsel has attached. In 2009, the Court overruled precedent and held that the police may approach a defendant even after the initiation of formal judicial proceedings.[27] But the defendant can always tell the police that he does not wish to speak to them.

      Even if the defendant has invoked his rights with respect to one charge, the police can probably still approach him to ask him about another charge.[28] For example, if a defendant has invoked with respect to a burglary charge, the police can initiate contact with the person to talk about another charge, such as another burglary or even a murder that may have occurred in connection with the burglary.[29]

  • Fifth and Fourteenth Amendment Issues: Right to Due Process
    • Was the client’s statement freely, knowingly, and voluntarily made?Although Miranda was designed to do away with the somewhat vague voluntariness inquiry, the issue of whether a confession was voluntarily made can still be the basis for a motion to suppress pursuant to the due process clauses of the Fifth and Fourteenth Amendments.[30] And, even if a suspect is advised of his rights and waives those rights, the waiver may be deemed to be involuntary or coerced under certain circumstances.[31] For example, appellate courts in Virginia have ruled confessions to be involuntary when induced by threats to prosecute a member of the defendant’s family.[32]

      But lying to a suspect to induce a confession, while a factor in determining voluntariness, is typically not an obstacle to the admissibility of a confession.[33] Similarly, promises of leniency by themselves will not render a confession inadmissible.[34]

    • What other factors are considered in determining the voluntariness of a client’s confession?The totality of the circumstances test is used in determining if a statement (or waiver of Miranda) was made voluntarily.[35] The courts will look at the details of the interrogation and the characteristics of the accused. A suspect who is under the influence of alcohol or drugs may be more susceptible to police coercion than a suspect who is not under the influence.[36] In the case of a juvenile defendant, the courts will examine the age, experience, education, and intelligence of the suspect.[37]

PROCEDURAL ISSUES

  • Under Virginia Code § 19.2-266.2, defense motions to suppress must be filed in writing, with copy given to the prosecutor, no later than seven days before trial. The code section provides for a later filing “for good cause shown and in the interest of justice.” To assist in the filing of such a motion, the defense counsel can also file a motion for bill of particulars to get more specific information from the prosecution regarding the circumstances of the confession.
  • The filing requirement and the seven day deadline of Code § 19.2-266.2 apply only to cases pending in circuit court.[38] The code section allows for such motions to be made on the trial date itself in the general district courts and in the juvenile courts. But the prosecution is entitled to a continuance “for good cause shown.” Whether defense counsel should actually raise a suppression issue at the preliminary hearing for a felony case is another matter. Sometimes, it may be better to avoid giving the prosecution too much notice regarding a suppression issue. And, sometimes, raising a strong suppression issue which results in the dismissal of the charges at the preliminary hearing may convince the prosecution that the case should not be brought back by direct indictment. In either event, the preliminary hearing should be used to explore all the circumstances surrounding a confession.
  • Counsel must preserve the client’s appellate rights by specifically raising all grounds on which a motion to suppress is based. Also, it should be noted that a guilty plea waives the client’s appellate rights unless it is done as a conditional plea under Virginia Code §19.254.2. In order to plead guilty and preserve a previously argued (and overruled) suppression motion, the Commonwealth has to agree that the defendant can appeal the issue. If the defendant is ultimately successful on appeal, he is then allowed to withdraw his guilty plea.
  • Even if the statements are suppressed by the trial court, they may still be admissible under very limited circumstances. For example, if the defense is successful in having statements suppressed based on a Miranda violation, those statements may still be used to impeach the client’s testimony at trial.[39] The United States Supreme Court recently added the Sixth Amendment to this exception and held that a statement obtained in violation of the Sixth Amendment right to counsel may still be used to impeach the defendant’s inconsistent statement at trial.[40] But if a statement is suppressed because it was deemed to be involuntary, then the statement is suppressed for all purposes.[41]

CONCLUSION

In analyzing a confession case, counsel should first see if the Fourth Amendment prohibition against unreasonable searches and seizures is applicable. Then, counsel should move to the Fifth Amendment to see if police have complied with Miranda’s rules. The Sixth Amendment right to counsel should also be considered in cases where confessions have been obtained after the initiation of adversarial proceedings. Even if the confession meets all of these constitutional provisions, counsel should still examine the case for any due process violations. Finally, the procedural aspects of the case have to be considered, such as meeting deadlines in filing motions and adequately preserving arguments for appeal should that become necessary.

The general practitioner representing a client who has confessed to the police needs to ensure all avenues are explored. The questions posed in this article will hopefully provide the practitioner a road map to navigate those avenues. If all avenues lead to a dead end, then the practitioner will have to resort to another set of skills: plea negotiation.

ENDNOTES

  1. Case law divides a suspect’s incriminating statements into two categories: a confession and an admission. “A confession is a statement admitting or acknowledging all facts necessary for conviction of the crimes charged, while an admission admits of facts tending to prove guilt but falling short of an admission to all essential elements of the crime.” Caminade v. Commonwealth, 230 Va. 505, 510, 338 S.E.2d 846, 849 (1986) (internal quotations marks and citations omitted). For purposes of discussion, this commentary will refer to incriminating statements made by a defendant as a “confession.” But this should not distract from the fact that a practitioner should consider a motion to suppress even if that statement does not qualify as a “confession” or an “admission.” A statement by the client may be innocuous on its face but may, placed in context of other evidence, be damaging. For example, a client’s statement that provides an alibi which is later refuted by the police can be just as damaging as an “I did it” statement.
  2. Miranda v. Arizona, 384 U.S. 436 (1966).
  3. Wong Sun v. United States, 371 U.S. 471 (1963).
  4. United States v. Mendenhall, 446 U.S. 544 (1980).
  5. Terry v. Ohio, 392 U.S. 1 (1968).
  6. Stansbury v. California, 511 U.S. 318 (1994).
  7. Brown v. Illinois, 422 U.S. 590 (1975).
  8. See generally, Afshin Farashahi, The U.S. Supreme Court and the Fourth Amendment: Laying the Groundwork for a Radical Shift in the Law of Search and Seizure, VBA NEWS JOURNAL (Spring 2010).
  9. 555 U.S. 135 (2009).
  10. Berkemer v. McCarty, 468 U.S. 420 (1984); Oregon v. Mathiason, 429 U.S. 492 (1977).
  11. California v. Beheler, 463 U.S. 1121 (1983) (per curiam) (Miranda is applicable when suspect’s freedom is curtailed to a “degree associated with formal arrest”).
  12. Yarborough v. Alvarado, 541 U.S. 652 (2004).
  13. Rhode Island v. Innis, 446 U.S. 291 (1980) (“Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent”).
  14. Id.
  15. Edwards v. Arizona, 451 U.S. 477 (1981).
  16. Arizona v. Robertson, 486 U.S. 675 (1988).
  17. Davis v. United States, 512 U.S. 452 (1994).
  18. Midkiff v. Commonwealth, 250 VA. 262, 266-67, 462 S.E.2d 112, 115 (1995). But see, Commonwealth v. Hilliard, 270 Va. 42, 613 S.E.2d 579 (2005) (a case in which the Supreme Court of Virginia held that the accused had successfully invoked his right to an attorney).
  19. Michigan v. Mosley, 423 U.S. 96 (1975) (police may approach defendant at a later date if he has invoked right to silence).
  20. Id.
  21. Oregon v. Bradshaw, 462 U.S. 1039 (1983) (“Well, what is going to happen to me now?” was deemed to have “initiated” a conversation with the police).
  22. Illinois v. Perkins, 496 U.S. 292 (1990) (“Miranda warnings are not required when the suspect is unaware that he is speaking to a law enforcement officer and gives a voluntary statement”).
  23. New York v. Quarles, 467 U.S. 649 (1984) (“overriding considerations of public safety justify [an] officer’s failure to provide Miranda warnings”).
  24. Pennsylvania v. Muniz, 496 U.S. 582 (1990) (plurality opinion); see also, Timbers v. Commonwealth, 28 Va. App. 187, 50 3S.E.2d 233 (1998) (“[a]ssuming without deciding that a routine booking question exception exists in Virginia”).
  25. Brewer v. Williams, 430 U.S. 387 (1977).
  26. Massiah v. United States, 377 U.S. 201 (1964).
  27. Montejo v. Louisiana, 556 U.S. 778 (2009).
  28. Texas v. Cobb, 532 U.S. 162 (2001); McNeil v. Wisconsin, 501 U.S. 171 (1991).
  29. Cobb, 532 U.S. 162.
  30. Miller v. Fenton, 474 U.S. 104 (1985); Ashcraft v. Tennessee, 322 U.S. 143 (1944).
  31. Miller, 474 U.S. 104.
  32. Tipton v. Commonwealth, 224 Va. 256, 295 S.E.2d 880 (1982); Hammer v. Commonwealth, 207 Va. 135, 148 S.E.2d 878 (1966).
  33. Frazier v. Cupp, 394 U.S. 731 (1969).
  34. Rodgers v. Commonwealth, 227 Va. 605 (1984).
  35. Schneckloth v. Bustamonte, 412 U.S. 218 (1973).
  36. Commonwealth v. Peterson, 15 Va. App. 486, 424 S.E2d 722 (1992).
  37. Fare v. Michael C., 442 U.S. 707 (1979).
  38. See also, Opinion of Attorney General, 05-016 (5/17/05).
  39. Harris v. New York, 401 U.S. 222 (1971) (defendant statements preceded by defective warnings can be used to impeach defendant’s testimony); Oregon v. Hass, 420 U.S. 714 (1975) (even if defendant asserts his rights upon being advised of Miranda, prosecution can still use statements for impeachment purposes).
  40. Kansas v. Ventris, 556 U.S. 586 (2009).
  41. New Jersey v. Portash, 440 U.S. 450 (1979).
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