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.