Chapter 2: Pretrial Defenses

Motion to Suppress Statements

FIFTH AMENDMENT DEFENSES

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OVERVIEW

Law enforcement will typically attempt to interview a defendant in order to obtain a confession or admission. This may occur during the investigation, during the execution of a search warrant, at the time of arrest, or as part of what is referred to as a “knock-and-talk.”

Whenever a defendant has made statements to law enforcement, the Fifth Amendment may be implicated. A defendant can file a motion to suppress statements arguing that the statement in question was obtained in violation of Miranda or that the statement was involuntary.

In practice, very few cases are ruled to be involuntary. Miranda violations, however, are much more common. For Miranda to apply, the defendant must have been in custody and the statements must have been in response to an interrogation. When a motion to suppress is granted due to a Miranda violation, the Government is prohibited from introducing the unlawfully obtained statement in its case-in-chief.

CUSTODY FOR MIRANDA PURPOSES

In Miranda v. Arizona, the Supreme Court established procedural safeguards to ensure Fifth Amendment protections in the face of “overzealous police practices.” Under Miranda, “the prosecution may not use statements … stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” Therefore before any questioning occurs, “the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” ^[1]

Miranda warnings are only required for statements made during custodial interrogations. Thus, for these warnings to be relevant, an individual must be legally considered “in custody.”^[2] Whether a suspect is deemed in custody under Miranda hinges on the circumstances of each case, with “the ultimate inquiry” focusing on whether there is a “formal arrest or restraint on freedom of movement” comparable to a formal arrest.^[3] This determination “depends on the objective circumstances of the interrogation” rather than “the subjective views harbored by either the interrogating officers or the person being questioned.”^[4]

If a reasonable person in the suspect’s position “would have understood that he or she was under arrest,” the police are obligated to provide Miranda warnings before initiating questioning.^[5] Rather than enumerating specific factors for consideration, the Supreme Court mandates that courts “examine all of the circumstances surrounding the interrogation, including those that would have affected how a reasonable person in the suspect’s position would perceive his or her freedom to leave.”^[6]

^[1] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)

^[2] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)

^[3] California v. Beheler, 463 U.S. 1121, 103 S. Ct. 3517, 77 L. Ed. 2d 1275 (1983); Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 714, 50 L. Ed. 2d 714 (1977)

^[4] Stansbury v. California, 511 U.S. 318, 114 S. Ct. 1526, 128 L. Ed. 2d 293 (1994)

^[5] Berkemer v. McCarty, 468 U.S. 420, 422, 104 S. Ct. 3138, 3141, 82 L. Ed. 2d 317 (1984)

^[6] J.D.B. v. North Carolina, 564 U.S. 261, 131 S. Ct. 2394, 180 L. Ed. 2d 310 (2011)

FACTORS RELEVANT TO CUSTODY INQUIRY

Mode of Police Summons:
a. Language used during summoning
Environment:
a. Familiarity or neutrality of surroundings
b. Isolation in nonpublic questioning room
c. Suspect’s separation from family or colleagues who could offer moral support
Law enforcement presence:
a. Number of law officers present at the scene
Physical Restraint:
a. Degree of physical restraint, including physical force and/or threats
b. Potential display of a weapon by an officer
c. Physical contact between officer and defendant
Interrogation Details:
a. Time, place, and purpose of the encounter
b. Duration and character of interrogation
c. Extent to which the individual is confronted with evidence of guilt
Legal Aspects:
a. Whether/when probable cause to arrest exists^[7]
b. When the suspect becomes the focus of the investigation
Subjective Factors:
a. Subjective intent of the police
b. Subjective belief of the defendant
c. Officer’s tone of voice and general demeanor
Communication:
a. Whether the suspect was told they did not need to answer questions/could leave
b. Extent to which officers’ beliefs about the individuals’ potential culpability were communicated^{^[8]}
Safety Considerations:
a. Risk of danger presented by the suspect
Post-Questioning Actions:
a. Release of suspect at the end of questioning
b. Withholding of money/belongings

Any inquiry into whether the officers have focused their suspicions on the individual under interrogation, but have not disclosed those suspicions, is irrelevant for Miranda purposes.^[9] Questioning in a “coercive environment” alone is insufficient to trigger the need for Miranda warnings.^[10]

Factors explicitly identified/agreed upon by circuit:

First Circuit^[11]: 1, 2, 3, 4, 5

Second Circuit^[12]: 2, 3, 4, 5, 9

Third Circuit^[13]: 8

Fourth Circuit^[14]: 1, 2, 3, 4, 5, 7

Fifth Circuit^[15]: 6, 7

Sixth Circuit^[16]: 4, 5, 8

Seventh Circuit^[17]: 5, 8, 10

Eighth Circuit^[18]: 1, 3, 4, 5, 8, 10

Ninth Circuit^[19]: 1, 2, 3, 4, 5

Tenth Circuit^[20]: 2, 3, 4, 7

Eleventh Circuit^[21]: 1, 2, 3, 10

Supreme Court^[22]: 2, 4, 5, 7, 8

No one of these factors is determinative, and the list of factors identified by each circuit is non-exhaustive.

^[7] Probable cause alone is not sufficient to trigger the right to receive Miranda warnings ( United States v. Woods, 720 F.2d 1022 (9th Cir. 1983)).

^[8] The Supreme Court clarified that if a police officer does not disclose their subjective view on whether the person under questioning is a suspect, their view does not affect whether or not the person is in custody under Miranda. If the officer conveys their beliefs “by word or deed” to the person under questioning, they then affect how a reasonable person being questioned would understand their “freedom of action.” That being said, even if an officer makes a clear statement that the person being interrogated is a suspect, the ultimate weight and pertinence of that communication depends on the facts and circumstances of each particular case (Stansbury v. California, 511 U.S. 318, 114 S. Ct. 1526, 128 L. Ed. 2d 293 (1994)).

^[9] Stansbury v. California, 511 U.S. 318, 326, 114 S. Ct. 1526, 1530, 128 L. Ed. 2d 293 (1994)

^[10] Oregon v. Mathiason, 429 U.S. 492, 97 S. Ct. 711, 50 L. Ed. 2d 714 (1977)

^[11] United States v. Streifel, 781 F.2d 953, 961 (1st Cir. 1986); 1 W. LaFave & J. Israel, Criminal Procedure § 6.6, at 494–99 (1984).

^[12] United States v. Newton, 369 F.3d 659, 674 (2d Cir. 2004)

^[13] United States v. Varela-Garcia, 87 F. App’x 795, 797 (3d Cir. 2004)

^[14] United States v. Hashime, 734 F.3d 278, 283 (4th Cir. 2013)

^[15] Alberti v. Estelle, 524 F.2d 1265, 1267 (5th Cir. 1975)

^[16] United States v. Panak, 552 F.3d 462, 465 (6th Cir. 2009); United States v. Salvo, 133 F.3d 943 (6th Cir. 1998)

^[17] Lentz v. Kennedy, 967 F.3d 675 (7th Cir. 2020)

^[18] United States v. Griffin, 922 F.2d 1343, 1347 (8th Cir. 1990)

^[19] United States v. Bautista, 684 F.2d 1286, 1292 (9th Cir. 1982); United States v. Booth, 669 F.2d 1231 (9th Cir. 1981); United States v. Craighead, 539 F.3d 1073, 1084 (9th Cir. 2008)

^[20] United States v. Griffin, 7 F.3d 1512, 1519 (10th Cir. 1993)

^[21] United States v. Jayyousi, 657 F.3d 1085, 1127 (11th Cir. 2011)

^[22] Stansbury v. California, 511 U.S. 318, 114 S. Ct. 1526, 128 L. Ed. 2d 293 (1994); Howes v. Fields, 565 U.S. 499, 508, 132 S. Ct. 1181, 1189, 182 L. Ed. 2d 17 (2012); Beckwith v. United States, 425 U.S. 341, 345, 96 S. Ct. 1612, 1616, 48 L. Ed. 2d 1 (1976)