Suppressing Illegally Obtained Statements

by Professor Byron L. Warnken on November 6, 2014

Five Theories to Suppress Illegally Obtained Statements

I.       Statement suppression theory #1 – Fourth Amendment “fruit of the poisonous tree”

If police make an illegal arrest, and then obtain a statement, the statement is likely to be suppressed, as a “fruit of the poisonous tree” of the illegal arrest, even if the statement was otherwise obtained constitutionally.  Thus, the statement is suppressed under the Fourth Amendment and not under the Fifth Amendment.

II.      Statement suppression theory #2 – involuntary statements under Maryland’s common law “promises & inducements”

If police obtain a statement by making the Defendant a promise or an inducement, even if the statement otherwise complies with the Fifth Amendment and the Fourteenth Amendment, the statement is inadmissible under Maryland’s common law prohibition against obtaining a statement based on “promises and inducements,” if the Defendant relied on that promise or inducement in making the statement.

III.    Statement suppression theory #3 – involuntary statements under the Due Process Clause of the Fourteenth Amendment, the Fifth Amendment privilege against compelled self-incrimination, &/or Md. Decl. of Rights art. 22

If police obtain a statement that is involuntary, under a totality of the circumstances, i.e., it is actually or subtly coerced and it is not voluntary, that statement is inadmissible, and it violates the Fifth Amendment privilege against compelled self-incrimination, the Fourteenth Amendment Due Process Clause, and/or the Md. Decl. of Rights art. 22.

IV.     Statement suppression theory #4 – statements that violate Miranda v. Arizona & its progeny

If police obtain a statement from a Defendant, while the Defendant is subject to custodial interrogation, for the statement to be admissible, the Defendant (1) must have been afforded the rights under Miranda v. Arizona, 384 U.S. 436 (1966), and its progeny; and (2) must have made a knowing and intelligent waiver of those rights.  Miranda rights include (1) the right to remain silent; (2) knowledge that any statement given may be used against the Defendant in a court of law; (3) the right to have counsel present during interrogation; and (4) the right to counsel during interrogation, at government’s expense, if the Defendant cannot afford counsel.

V.      Statement suppression theory #5 – statements that violate the Sixth Amendment right to counsel

If police obtain a statement from a Defendant who has been formally charged, i.e., indicted or subject to a criminal information, the Defendant has a Sixth Amendment right to counsel.  For the statement to be admissible, the Defendant (1) must have been given the same rights as provided under Miranda v. Arizona; and (2) must have made a knowing and intelligent waiver of those rights.  Unlike Fifth Amendment Miranda, for which the Defendant must take steps to invoke the rights, the Sixth Amendment rights to counsel is self-executing, and the Defendant needs to take no steps to invoke the right.

In In re Darryl P., 211 Md. App. 112 (2013), in an incredible 63-page opinion, Judge Moylan masterfully summarized and synthesized the five theories of statement suppression.  The Juvenile was originally charged, as an adult, with first degree assault, second degree assault, and use of a handgun.  He was released on bail.  Eventually, he was indicted and re-arrested for those charges and four other charges.  Jurisdiction was transferred to juvenile court.  His motion to suppress an inculpatory statement was denied.  On an agreed statement of facts, he was found delinquent.

Judge Moylan carefully analyzed each of the five suppression theories.  On the first four theories, the State prevailed.  On the fifth, theory, the Juvenile prevailed and his delinquent adjudication was vacated.  The Juvenile’s first theory to suppress the confession was that police illegally arrested him and the confession was the fruit of the poisonous tree of that illegal arrest.  The Juvenile argued that the second arrest warrant was illegal under Md. Rules 4-212 and 4-216.1 because he was already on bail, which would have continued.

Judge Moylan noted that the confession could only be suppressed as a fruit of the poisonous tree if the poisonous tree was a Fourth Amendment violation and not a violation of the Maryland Constitution, a Maryland statute, or a Maryland court rule.  Maryland, like the majority of states, has no state exclusionary rule and suppression must be based on a Fourth Amendment violation. See Brown v. State, 397 Md. 89 (2007).  Because the arrest, in this case, was supported by probable cause, the arrest did not violate the Fourth Amendment, and there is no federal exclusion based on a violation of state law.  Virginia v. Moore, 553 U.S. 164 (2008).

In Brown v. Illinois, 422 U.S. 590 (1975), the Supreme Court suppressed a confession, even though the police complied with the Fifth Amendment, because the confession was a fruit of the poisonous tree of the underlying arrest that violated the Fourth Amendment.  That was not this case.

The Juvenile’s second theory to suppress the confession was that the police violated his Fifth Amendment rights under Miranda v. Arizona, 384 U.S. 436 (1966), and Edwards v. Arizona, 451 U.S. 477 (1981).  Judge Moylan noted that, under Miranda, if the Juvenile was subjected to custodial interrogation, he had a right to remain silent and a right to Fifth Amendment counsel.  He further noted that, under Edwards, if the Juvenile requested counsel, police could not question him until counsel was made available or until the Juvenile initiated further conversation with the police directly or indirectly related to the investigation.

In this case, the trial court found the Juvenile (1) was given Miranda warnings, (2) stated that he understood those rights, (3) never invoked his right to silence, (4) never invoked his right to counsel, and (5) responded to police questioning, all of which indicated a waiver of his right to remain silent and his right to counsel.

Judge Moylan concluded that the trial court’s findings were not clearly erroneous.  Even an ambiguous invocation of rights (here there was no invocation) is insufficient to trigger Miranda and Edwards.  After giving Miranda warnings, police may interrogate a suspect who has neither invoked nor waived Miranda.  Berghuis v. Thompkins, 560 U.S. 370 (2010).  The Court held that, in this case, there was no violation of Miranda and Edwards.

The Juvenile’s third theory (Maryland common law) and fourth theory (federal Fifth and Fourteenth Amendments and state Md. Decl. of Rights art. 22 and art. 24) to suppress the confession was that the police violated multiple voluntariness standards.  Maryland’s common law prohibits obtaining a confession induced by threat of harm or promise of advantage. Judge Moylan noted that all of the voluntariness theories descended from a common parentage.  The Court held that there was no involuntariness of any kind.

The Juvenile’s fifth theory to suppress the confession was that the police violated his Sixth Amendment right to counsel, and the Court of Special Appeals agreed.  The Sixth Amendment right to counsel attaches at the time of adversarial judicial proceedings by way of formal charge, preliminary hearing, indictment, information, or arraignment.  The right to counsel, even if attached, only applies during critical stages.

In this case, Judge Moylan held that, when the Juvenile was taken before a District Court Judge and made bail, he was “accused” and thus entitled to counsel on the three original charges.  The right to counsel applies at the first appearance before a judicial officer when told of the formal accusation against him, and restrictions are placed on his liberty.  Rothgery v. Gillespie County, 554 U.S. 191 (2008).  The Sixth Amendment right to counsel is “offense specific,” and it only applied, at that time, to the pending three charges and not to the other four charges that came six weeks later.

Once he was an accused, the police were prohibited, absent a waiver, from questioning him without counsel present. Unlike Fifth Amendment counsel, which is a protection against compelled self-incrimination, Sixth Amendment counsel is the right to rely on counsel as a “medium” between the Juvenile and the State.

In this case, the Juvenile was subjected to more than two hours of intense questioning without counsel present.  Judge Moylan noted that waiver of Sixth Amendment counsel must entail something more than a mere waiver of Fifth Amendment counsel during custodial interrogation.  He stated that the right to Sixth Amendment counsel is broader than Fifth Amendment Miranda counsel.  He also stated that the Supreme Court has not squarely addressed waiver of Sixth Amendment counsel, other than to recognize that a waiver of Fifth Amendment counsel is not necessarily a waiver of Sixth Amendment counsel.

In this case, the Juvenile retained private counsel two months before the interrogation that resulted in the confession.  Judge Moylan stated that compliance with Miranda in no way means that there was no Sixth Amendment violation.  The CSA held that, in this case, there was not a knowing and intelligent waiver of the Sixth Amendment right to counsel.  The Court stated that, because the Juvenile was on bail and not subject to arrest, counsel would have insisted on no interrogation.  The Court held that Fifth Amendment counsel only comes into existence when unambiguously invoked, but that Sixth Amendment counsel comes into existence, automatically, whether or not invoked, at the moment of formal charging, and it applies at every critical stage, including whenever uncounseled interrogation begins.  The Court reversed.

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Should I Accept a Guilty Plea?

by Professor Byron L. Warnken on September 25, 2014

In most criminal cases, the Defendant is afforded an opportunity to accept a guilty plea.  The question is, if a plea can be negotiated, should the Defendant accept a guilty plea?  No two cases are alike, and there is no “one size fits all” answer to whether to accept a guilty plea.  Here are some of the considerations.

The “plus” of agreeing to plead guilty is that the Defendant usually – not always, but usually – is able to plead guilty to lesser charges and/or receive a lesser sentence.  To answer the question as to whether to plead guilty, the first consideration is, if the Defendant rejects a plea and goes to trial, what then happens?  If the Defendant rejects a guilty plea, and goes to trial, the Defendant may be found not guilty, which is the best possible result.

However, if the Defendant rejects a guilty plea, goes to trial, and is found guilty, i.e., loses at trial, the Defendant is usually convicted of something worse than the plea offer, and the sentence will almost always be harsher than if the Defendant accepted the plea.  Moreover, the Defendant, in most cases, will have a criminal record for the rest of his or her life.  Thus, the Defendant must consider (1) what are the chances of success if the Defendant goes to trial, i.e., what are the chances of a not guilty verdict on all counts; and (2) how much risk is the Defendant willing to accept.

Before deciding whether to accept a guilty plea, the Defendant must understand the difference between a two-party plea agreement and a three-party plea agreement.  In a two-party plea agreement, defense counsel and the prosecutor reach an agreement, but that agreement is not binding on the judge.  Usually, the judge will accept the plea, and the recommended sentence that goes with that plea.  However, there is no guarantee.  The amount of the sentence is still completely up to the judge.  The Defendant may argue for a lighter sentence than the one agreed to.  The Defendant may be sentenced to the sentence that was agreed to or be sentenced with a sentencing range agreed to.  Of course, the Defendant may be sentenced to the maximum sentence for the crime or crimes to which he pleaded guilty.

Maybe the prosecutor will agree to “remain silent” at sentencing or agree to recommend a cap on the sentence.  Usually, the court will accept the recommended sentence, but, again, there is no guarantee.  Often, the two-party plea agreement is an agreement to “sentencing guidelines.”  This means that if the guidelines are three years to seven years, the parties will recommend guidelines, with the right to argue for any sentence within the guidelines.  A two-party plea agreement is risky.  Defense counsel needs to know the judge’s track record when sentencing Defendants under a two-party plea agreement.

In a three-party plea agreement, the parties, through counsel, present the plea agreement to the judge, urging the judge to “bind the court” to the plea and the sentence.  Most judges, when presented with a three-party agreement, agree to join the plea and bind the court to the recommended sentence, but there is no guarantee.  The judge may defer accepting or rejecting the three-party plea agreement until the court receives the pre-sentence investigation report.  Occasionally, the plea is a partial two-party plea agreement and a partial three-party plea agreement.  This means that the parties and the court agree to a sentencing range, which is often the guidelines range, with the court deciding on the sentence, within the agreed to range, after hearing argument from both counsel.

Plea agreements, particularly in lower level State Courts for minor offenses, may not involve jail time.  There may be an agreement to plead guilty, be sentenced to jail time, have that jail time suspended, in return for restitution or community service.  The agreement may include that, upon successful completion of the plea conditions, the Defendant returns and the court strikes the guilty finding and enters probation before judgment.  Generally, this can eventually be expunged, resulting in no criminal record.  The best of all worlds for the Defendant is for the prosecutor to agree to nol pros, i.e., dismiss the charges.  This too can be expunged.

There is one downside to a three-party plea agreement.  With a two-party agreement, the Defendant may file a motion for modification or reduction of sentence (MMRS).  If such a motion is filed, the court may or may not modify or reduce the sentence.  Although the court may deny the motion, the court may not increase the sentence.  With a three-party agreement, the court may not modify or reduce the sentence, except under rare circumstances, which almost never apply.  Thus, the good news with a three-party agreement is certainty and, similarly, the bad news is that there is certainty.

The best of all worlds may be a two-party agreement in which the judge agrees to entertain an MMRS, with the understanding that if the Defendant has a “good adjustment record,” the court will seriously consider granting probation or granting probation before judgment.  If the court reduces the sentence to probation, the Defendant will be permitted to serve the remainder of the sentence “on the street.”  If the court reduces the sentence to probation before judgment, after successful completion of probation, and a waiting period (usually three years), the Defendant may file for expungement, which permits the Defendant to have this case forever erased from his record, as if it did not happen.

A plea agreement is not something that should be thrown together at the last minute, particularly if trial counsel is seeking a plea agreement because trial counsel is not prepared to go to trial.

Depending on the circumstances, last minute plea agreements because a lawyer is not prepared to go to trial can be an issue raised on post conviction.  If an attorney guarantees a certain length of a sentence to induce his client into taking a plea, then the client later gets more time, this can also be an issue in post conviction.

Do not take the decision whether or not to plead guilty likely.  Often times, we receive calls many years later from clients we did not represent at trial seeking to have a guilty plea undone.  It’s not easy to undo what has been done.  It’s easiest to simply get good advice about whether or not to plead guilty up-front.  Hiring the right criminal lawyer, even if you know you are thinking about simply pleading guilty, is important.  There are numerous concerns and issues to weigh with qualified counsel before making such an important decision.  We at Warnken, LLC used to have a very active criminal practice in the Baltimore, Maryland area.  However, as time has gone on and my son takes a more active role in the practice, we’ve switched our focus to other areas like workers’ compensation.  We still handle select criminal matters, though.  Furthermore, if we cannot handle your criminal case, we can refer you to someone who can.

In conclusion, please understand the importance of weighing your options when deciding whether or not to plead guilty to a criminal offense.  The decision should be rooted in much contemplation with the benefit of good counsel.

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A Thank You to the Baltimore Bar Library

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Can I Withdraw My Guilty Plea?

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The vast majority of people, including attorneys and judges, have never heard of the term “affluenza.”  Beginning now, we may be hearing more about it because it has worked its way into legal language.  What is it and how might it be used in the law? The word affluenza is a combination of “affluence” and [...]

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An Update on My Treatise

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Things are moving right along.  My treatise is complete.  Editing is complete.  Indexes are complete.  Intros are complete.  Typos are fixed.  The Foreword is in.  The Library of Congress knows about it.  Covers have been picked.  The formatting is nearly complete. As promised recently, Maryland Criminal Procedure will go to the printer in early September and [...]

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