Suppressing Statements

This wikilog article is a draft, it was not published yet.

by: R tatum • June 30, 2009 • no comments

There are four avenues to pursue for looking to suppress a statement: (I) statements following unlawful extensions, (II) involuntary statements, (III) Miranda-bad statements, and (IV) those made after the defendant has invoked his rights.

I. Unlawful extension

ORS § 131.615(3): Stops are reasonable if they are limited to investigating the suspicious activity that led to the stop, other circumstances for which they develop reasonable suspicion, and inquiries necessary for the officer's or public safety. ORS § 810.410 restates these restrictions in the context of traffic stops.

Article 1, sec. 9:?

"Traffic stops should be the minimum possible intrusion on Oregon motorists, and not an excuse to begin questioning, searching or investigating that is unrelated to the traffic reason for the stop." State v. Carter/Dawson, 34 Or. App. 21 (1979), aff'd, 287 Or. 479 (1979). See also, State v. Ehret, 184 Or. App. 1 (2002); State v. Rodgers, 219 Or. App. 366 (2008).

4th Amendment: Illinois v. Caballes, 543 U.S. 405, 409 (2005). See also, Florida v. Royer, 460 U.S. 491 (1983); United States v. Sharpe, 470 U.S. 675 (1985).

II. Involuntary

Rationale and test:

"Admissions that are the product of coercion are inherently unreliable and, therefore, not admissible for any purpose." State v. Gable, 127 Or. App. 320, 324 (Or. Ct. App. 1994) (citing Mincey v. Arizona, 437 U.S. 385 (1978)). "The test for voluntariness under both the state and federal constitutions is whether, under the totality of the circumstances, it is apparent that the 'defendant's will was not overborne and his capacity for self-determination was not critically impaired.'" State v. Acremant, 338 Ore. 302, 324 (2005) (citing State v. Vu, 307 Or. 419, 425, (1989)); see also Schneckloth v. Bustamonte, 412 U.S. 218, (1973).

Mechanics:

Following the defendant's challenge, the state must prove the confession was made voluntarily by a preponderance of evidence. Lego v. Twomey, 404 U.S. 477, 484 (1972); State v. Stevens, 311 Or. 119, 137 (1991).

Things to remember:

• Statements given following a proper Miranda warning may still be given involuntarily. State v. Smith, 301 Or. 681, 700 (1986).
• The voluntariness analysis for statements and consent to search is the same. State v. Stevens, 311 Ore. 119, 137 (1991) ("Accordingly, we hold that, under Article I, sections 9 and 12, the state must prove the voluntariness of a consent to search, or of a defendant's statement, by a preponderance of the evidence").
• Looking forward, the appellate court is generally bound by the factual record established at trial. Ball v. Gladden, 250 Or. 485 (1968).
• "For the most part during the last 20 years [since Miranda] our law on [involuntary] confessions has been in a standby position gathering rust." State v. Smith, 301 Or. 681, 700 (1986).

Factors:

Identified in Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973):

• Youth, Haley v. Ohio, 332 U.S. 596 (1948).
• Lack of education, Payne v. Arkansas, 356 U.S. 560 (1958).
• Low intelligence, Fikes v. Alabama, 352 U.S. 191 (1956).
• Lack of any advice regarding constitutional rights, Davis v. North Carolina, 384 U.S. 737 (1966).
• Length of detention, Chambers v. Florida, 309 U.S. 227 (1940).
• Repeated and prolonged nature of the questioning, Ashcraft v. Tennessee, 322 U.S. 143 (1944).
• The use of physical punishment such as the deprivation of food or sleep, Reck v. Pate, 367 U.S. 433 (1961).

While much of this case law is older, dating to pre-Miranda era, it remains valid. Factors from Oregon cases include:

Promises that there will be no criminal charges, State v. Bodi, 223 Or. 486, 491 (1960) (citing State v. Wintzingerode, 9 Ore. 153 (1881) (overruling the decision of a Washington County trial judge who saw no problem with the police promising not to charge the suspect in exchange for a confession and then charging him anyway)).

Drug use, State v. Stevens, 311 Or. 119, 136 (1991) (consent to search context).

Inexperience with the criminal justice system, State v. Charlesworth, 151 Or. App. 100, 114 (1997) (consent to search context).

Examples:

Statements made by a defendant isolated in an interview room and for "several" hours and not immediately provided with counsel were voluntary because the "conditions of defendant's custody also certainly were not so oppressive as to undermine defendant's ability to exercise his free will." State v. Acremant, 338 Or. 302, 324-325 (2005).

Defendant's signed confession was involuntary following promises that it would only be used by his employer to terminate him and not in any criminal prosecutions. State v. Ely, 237 Or. 329, 334 (1964). But statements following a Disclaimer that the officer could not guarantee a deal were given voluntarily. State v. Rowe, 133 Or. App. 41, 49 (1995). The promise of treatment alone does not render a promise involuntary but promising treatment instead of punishment does. See State v. Neblock, 75 Or. App. 587, 590 (1985).

The officer who threatened to return with a warrant and search the house was not impermissibly coercive because officers are allowed to threaten what the law permits. State v. Rodal, 161 Or. App. 232, 242 (1999) (decided in the context of consent to search which is subject to the same analysis).

Statements by a probationer were not given involuntarily even though he was required to take a lie detector test and questioned about prior acts. The court held that because no one had indicated his Fifth Amendment privileges were foreclosed or that he was required to answer every question he was not compelled. State v. Tenbusch, 131 Or. App. 634, 644 (1994).

III. Miranda bad - 5th Amd.

"At the outset, if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent [and] that he has the right to consult with a lawyer and to have the lawyer with him during interrogation." Miranda v. Arizona, 384 U.S. 436, 469 (1966). "If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease … If the individual states that he wants an attorney, the interrogation must cease until an attorney is present." Id. at 473-474.

"In determining whether Miranda-like warnings were required by the Oregon Constitution, we must assess the extent to which defendant was 'in custody.' In Oregon, a defendant who is in 'full custody' must be given Miranda-like warnings prior to questioning. In addition, such warnings may be required in circumstances that, although they do not rise to the level of full custody, create a setting which judges would and officers should recognize to be 'compelling.'" State v. Smith, 310 Or. 1, 684 (1986) (internal citations omitted).

A. Custody

Hybrid Standard:

"We now hold that interrogation is custodial under Miranda if the police officer actually knows that he would not let the person being questioned leave or if the officer should be aware that the totality of circumstances in which the interrogation takes place is such that the person questioned would reasonably believe he is not free to leave." State v. White, 297 Ore. 302, 310 (1984).

Remember:

• Full custody is a sufficient but not necessary trigger for the Miranda warnings. State v. Magee, 304 Or. 261, 265 (1987).
• The meaning of custody is not greater under the Oregon Constitution than under the Federal Constitution States Supreme Court decision. State v. Smith, 301 Or. 681, 684 n. 3 (1986).
• "Analysis does not begin with fixing the time of 'arrest' … Although in Oregon 'arrest' as defined in ORS 133.005 will ordinarily subsume custody, the obverse is not necessarily true." State v. White, 297 Or. 302, 308 (1984).

Factors:

?Identified in State v. Paz, 31 Or. App. 851 (1977):

• Whether defendant could have left the scene of the interrogation voluntarily.
• Whether defendant was being questioned as a suspect or merely as a witness.
• Whether defendant freely and voluntarily accompanied the officer to the place of questioning.

Examples:

The student was in custody because he was sent to the principal's office to be questioned by a uniformed officer as a suspect in a burglary investigation and should have been Mirandized. In re Killitz, 59 Or. App. 720, 723 (1982).

Even though the questioning takes place in a police interview room the suspect was not in custody because the defendant voluntarily accompanied the officer to the station and was free to leave. State v. Hickam, 71 Ore. App. 471, 476 (1984); see also Oregon v. Mathiason, 429 U.S. 492, 495 (1977).

Defendant was in custody even though the questioning took place in his home and the officers were only going to cite the defendant for shooting the deer out of season rather than formally arrest him. State v. Teafatiller, 64 Or. App. 612, 616 (1983).

Defendant was not in custody even though he was not free to leave and was questioned as a suspect because the officer had significant doubts about the defendant's quilt and was actually just seeking more information. State v. Baker, 62 Or. App. 835, 840 (1983).

B. Compelling circumstances

Objective Standard:

Whether the situation is compelling is analyzed objectively. State v. Shaff, 343 Or. 639, 645 (2007) (citing State v. Magee, 304 Or. 261, 265 (1987)). This analysis is necessarily case specific. State v. Shirley, 223 Or. App. 45, 49 (2008) (citing State v. Roble-Baker, 340 Or. 631 (2006)).

Children are evaluated based on whether a child of similar age, knowledge and experience, placed in a similar environment would have felt compelled to stay and answer questions. See State ex rel Juv. Dept. v. Loredo, 125 Or. App. 390, (1993). It is unclear to which if any other classes this modified standard applies.

Mechanics:

After defendant files a motion to suppress, the state must show by a preponderance of evidence that the unwarned statements were made before the circumstances became compelling. State v. Roble-Baker, 340 Or. 631, 639 (2006).

Factors:

Identified in State v. Roble-Baker, 340 Or. 631, 640-641 (2006).

• Location of the encounter, State v. Smith, 310 Or. 1, 7 (1990).
• Length of encounter, State v. Prickett, 324 Or. 489, 495 (1997).
• Amount of pressure exerted, State v. Carlson, 311 Or. 201, 205 (1991).
• Ability to terminate the encounter, State v. Magee, 304 Or. 261, 265 (1987).

Other factor:

Confronted with evidence of probable cause to arrest, State v. McMillan, 184 Or. App. 63, 68 (2002); see also State v. Werowinski, 179 Or. App. 522 (2002); State v. Rose, 109 Or. App. 378 (1991).

Examples:

Even though the defendant was told she was free to leave the police station, the officer's actions undercut the statement: the was dependant on the officers for a ride back to her home, the officers were questioning her young son, the officers followed her when she left the interview room to smoke and asked questions that assumed her guilt, and in five hours she attempted to end the interview twice to no avail. State v. Roble-Baker, 340 Or. 631, 642-643 (2006).

Office created a coercive atmosphere by demanding the defendant spit out his drugs, dominating the encounter, and telling the defendant not to lie. State v. Shirley, 223 Ore. App. 45, 50 (2008).

A student interviewed in the principle's office, by a plain-clothed officer who hid his gun, and told the student he was free to leave before questioning him about a rape did not create compelling circumstances. State ex rel. Juvenile Dep't v. Loredo, 125 Or. App. 390, 395 (1993). Compare with State ex rel Juv. Dept. v. Killitz, 59 Or. App. 720 (1982).

A meeting with officers at a voluntary alcohol treatment facility was not compelling. State v. Smith, 310 Ore. 1, 7-8 (1990).

If an interview was not done under compelling circumstances simply because the defendant had become the primary suspect. State v. Smith, 310 Or. 1, 11 (1990). Though the defendant does need to be Mirandized if the officers know they are going to arrest the suspect.

While he was not under custodial arrest the defendant should have been Mirandized because his freedom was restricted and the police confronted him with evidence from following him to ATMs and statements from the prostitute. State v. McMillan, 184 Or. App. 63, 70 (2002).

Psychiatric exams:

Prior to a psychiatric exam the defendant need not be Mirandized but if the defendant is not represented by counsel he must be informed he has right to have counsel there and that what he says may be used against him. State v. Mains, 295 Ore. 640, 645 (1983). The subjective custody standard does not apply in this case because the officers were not yet sure what they were going to do with the John.

C. Unequivocally invoked

If the suspect makes an unequivocal request for counsel all questioning must cease. State v. Charboneau, 323 Or. 38, 55 (1996) (citing State v. Montez, 309 Or. 564, 572, (1990)). However, if the request is equivocal the officer must ask neutral questions to clarify the suspect's desire before proceeding. Id.; State v. Meade, 327 Or. 335, 340 (1998) (there is an exception for situations in which the request is equivocal and the suspect begins speaking again before the office has a chance to ask clarifying questions).

Examples:

• "Will I have an opportunity to call an attorney tonight?" was at most an equivocal. State v. Charboneau, 323 Or. 38, 55 (1996).
• "I think I need a lawyer to talk about the rest of it so I don't get linked up" was equivocal permitting the detective to ask neutral clarifying questions. State v. Montez, 309 Or. 564, 568 (1990).
• "It was my idea, huh! Well I'm not going to go any further with this until I speak with a lawyer … No, I mean I'll talk to you about it, but as far as this, my idea, I want to talk to a lawyer" was equivocal because the defendant's request was limited to the accusation that the crime was his idea, not the crime generally. State v. Kell, 303 Or. 89, 92 (Or. 1987) (Court's emphasis).
• "So, we can end the conversation here and we'll get us an attorney as you flip on to accusing me. I'm going to ask for an attorney" was an equivocal request, even though before he began speaking with the detective he said he would request counsel if they began to accuse him. State v. Gable, 127 Or. App. 320, 328 (1994).

E. Voluntary, knowing and intelligent waiver

Standard:

?"A waiver of the Sixth Amendment right to counsel must be voluntary, knowing, and intelligent, as must any waiver of constitutional rights." State v. Meyrick, 313 Or. 125, 132 (1992). Silence does not constitute waiver and the courts should err on the side of finding that waiver was not granted. Id. See also Argersinger v. Hamlin, 407 U.S. 25, 37, (1972).

General Notes:?

Courts tend to put a lot of weight on signed Miranda cards if they think the person was capable of understanding what card said. State v. Singleton, 288 Ore. 89, 105 (1979).

Factors:

• Courts put a lot of weight on signed Miranda cards if they think the person was capable of understanding the card. State v. Singleton, 288 Ore. 89, 105 (1979).
• Age, In re Deford, 177 Or. App. 555, 573 (2001).
• Education or comparable experience, McWilliams v. Gladden, 242 Ore. 333, 344 (1965).
• Mental capacity, McWilliams v. Gladden, 242 Ore. 333, 344 (1965).
• Prior experience with the police
• Testimony that they understood, In re Sanders, 56 Or. App. 724, 730 (1982).

Examples:

?Youth may waive their rights but the court should consider the "juvenile's age, experience, education, background, and intelligence and whether the juvenile has the competency to understand the Miranda warnings and the consequences of waiving them." State ex rel. Juvenile Dep't v. Deford (In re Deford), 177 Ore. App. 555, 573 (2001). In this case the rights were explained very carefully by the officer and the youth (11) had prior experience with the police.

A young (13) defendant "of marginal intelligence" and could not have waived his rights because he was incapable of knowing or understanding he had a right to have counsel present during questions. In re Sanders, 56 Or. App. 724, 730 (1982).

Statements by the prosecutor that he "though he a good case" for first degree murder, may have induced the defendant to waive her right to an attorney involuntarily and plead guilty to second degree murder. McWilliams v. Gladden, 242 Or. 333, 346 (1965) (remanded).

F. Questions or functional equivalent

Standard:

?For the purposes of Miranda questions are statements made by the officer which are reasonably likely to elicit incriminating information. State v. Cobb, 22 Ore. App. 510, 515-516 (1975).

Routine administrative questions are permitted.

Examples:

Asking two detained suspects "Whose vehicle is this?" did not require the suspects be Mirandized because question was asked in the context of the officer trying to find the registration even though the defendant immediately admitted the car was stolen. State v. Cobb, 22 Or. App. 510, 516 (1975).

In this custodial setting, even if the first two questions were "investigatory" or otherwise proper, the officer's question "why" put to defendant was one "reasonably likely to elicit incriminating information." State v. Gill, 24 Or. App. 541, 545 (1976).

"'Kind of got caught, didn't you?' Defendant replied, 'Yeah, I guess I got to go to jail now.' The officer then asked why he thought that. Defendant answered, 'Because I broke into here,' and pointed to the building." State v. Brown, 44 Or. App. 597, 599 (1980). The suspect should have been Mirandized before the "why" question. Id.

IV. Statements after rights are invoked

Standard?:

"[When a] defendant exercises his right to remain silent and also informs the police of his desire to exercise his right to consult with an attorney, the police must "scrupulously honor" those rights; that when in such a case it is contended by the state that the defendant has subsequently waived those rights there is a presumption that the waiver was involuntary and the state has a 'heavy burden' to demonstrate that the defendant knowingly and intelligently waived those rights; and that the determination whether there was such a waiver is to be made upon an inquiry into 'the totality of the surrounding circumstances.'" State v. Singleton, 288 Ore. 89, 104 (1979). See also Edwards v. Arizona, 451 U.S. 477 (1981) (presumption that waiver after invocation is involuntary).

Montejo v. Louisiana, 129 S. Ct. 2079 (2009), makes it clear that previous interpretations of Michigan v. Jackson, 475 U.S. 625 (1986) are invalid. There is no rule "forbidding police to initiate interrogation of a criminal defendant once he has requested counsel at an arraignment or similar proceeding." Montejo at 2082. This suggest a true totality of circumstances approach.

Examples:

Officers were allowed to initiate contact after the defendant invoked his right to counsel because he said it would be fine if they stopped by the next day after he had had a chance to call his attorney. State v. Singleton, 288 Or. 89, 105 (1979).

Defendant waived his right to an attorney after invoking it when the police returning the day asked if had contacted his attorney said he no longer thought he needed to. State v. Sanford, 245 Or 397 (1966).