COURT FOR THE COUNTY OF 
| Chapter 9: Statements by the Defendant |
9-1 Overview of Motions to Suppress Statements
In order to move to suppress a defendant's statement, there must have been an interrogation. An "interrogation," as defined by the United States Supreme Court, entails: a) behavior designed to elicit information; b) by agents of the state; c) in a custodial setting. An "involuntary confession" presumes an interrogation during which a defendant is coerced into giving testimony against himself. Colorado v Connelly, 479 US 157; 107 SCt 515; 93 LEd2d 473, 486-87 (1986); Oregon v Elstad, 470 US 298, 312-14; 105 SCt 1285; 84 LEd2d 222 (1985).
There are four grounds for moving to suppress statements made by your client:
1. your client's Fifth Amendment rights were violated;
2. your client's Sixth Amendment rights were violated;
3. your client's statement was not voluntarily given; and/or
4. the statement was a "fruit" of a Fourth Amendment violation.
You do not need to choose a single theory for your motion. In many cases, you will be able to move to suppress on all four grounds. All of these potential issues require your investigation, not just by interviewing your client, although that is very important, but by discovering other evidence which may corroborate your claims. Finally, while Michigan Courts have not generally recognized a higher or different state constitutional standard, the state correlary to the federal constitution should also be cited.
9-2 Fifth Amendment Violations
Were Miranda warnings given?
If your client was: 1) in custody, and 2) questioned by government officials, his responses must be suppressed if he was not effectively advised of his Miranda rights and afforded an opportunity to exercise them. Miranda v Arizona, 384 US 436; 86 SCt 1602; 16 LEd2d 694 (1966); People v Reed, 393 Mich 342 (1975). Massiah v United States, 377 US 201, 204-07; 84 SCt 1199, 1202-03; 12 LEd2d 246 (1964); Escobedo v Illinois, 378 US 478; 84 SCt 1758; 12 LEd2d 977 (1964); People v Cheatham, 453 Mich 1 (1996).
The Miranda warning requirement applies to misdemeanors and traffic offenses, Berkemer v McCarty, 468 US 420; 104 SCt 3138; 82 LEd2d 317 (1984); People v Chinn, 141 Mich App 92 (1985), but roadside questioning during a traffic stop and routine sobriety testing are not "custodial interrogations" sufficient to invoke Miranda. Id.; Pennsylvania v Muniz, 496 US 582; 110 SCt 2638; 110 LEd2d 528 (1990).
What is "interrogation?"
Interrogation occurs when a person is subjected to either express questioning or to words or actions reasonably likely to elicit incriminating responses. Rhode Island v Innis, 446 US 291; 100 SCt 1682; 64 LEd2d 297 (1980); People v Paintman, 412 Mich 518 (1982).
What is "in custody?"
Custodial interrogation is questioning by law enforcement officials after a person has been taken into custody or deprived of his or her freedom in any significant way. Miranda, supra. Under the Michigan Constitution, the duty to give Miranda warnings is triggered by "custody" rather than focus. People v Hill, 429 Mich 382 (1987).
A detention amounts to an arrest when by either physical force or "submission to the assertion of authority," a person's freedom of movement is restrained. California v Hodari D., 499 US 621; 111 SCt 1547; 113 LEd2d 690 (1991); People v Toney, 437 Mich 1060 (1991); People v O'Neal, 167 Mich App 274 (1988). The standard to be applied is whether a reasonable person would have felt free to leave. Florida v Royer, 460 US 491; 103 SCt 1319; 75 LEd2d 229 (1983).
Roadside questioning is not "custodial" interrogation. People v Jelneck, 148 Mich App 456 (1986). Neither is a hospital room interview, People v Peeremboom, 224 Mich App 195 (1997), a grand jury proceeding, People v Hoffman, 205 Mich App 1 (1994), or a voluntary post-polygraph interview. People v Lumley, 154 Mich App 618 (1986).
The fact that the defendant is held incommunicado and is arrested immediately after giving a statement is evidence that the defendant was in custody and should have been given Miranda warnings. People v Sexton (On Remand), 236 Mich App 525 (1999).
Were warnings complete?
In every case your client must be told that:
1. he has the right to remain silent;
2. that anything he says can be used in court;
3. that he has the right to consult with a lawyer; and
4. that if he is indigent a lawyer will be appointed for him.
Did your client understand the warnings?
Your client must have actually understood his rights. People v Langston, 57 Mich App 666 (1975); People v Howard, 226 Mich App 528 (1997). Your client's age, mental capacity, ability to hear and any other physical or psychological condition, including "advanced intoxication," may impact this question. People v Davis, 102 Mich App 403 (1980); People v Cheatham, 453 Mich 1 (1996). However, the state need not prove that the defendant understood the ramifications of deciding to waive or to exercise his or her rights. Cheatham, supra. An accused need not fully understand why he is being interrogated to make a valid waiver. People v Abraham, 234 Mich App 640 (1999) [11-year-old with a mental acuity of a 6-year-old found to have adequately understood Miranda rights].
Did your client waive the rights?
Your client must have been given an meaningful opportunity to exercise his rights. If your client indicates at any time during the interrogation that he wants to remain silent, the questioning must stop. Michigan v Mosley, 423 US 96; 96 SCt 321; 46 LEd2d 313 (1975); People v Slocum (On Remand), 219 Mich App 695 (1996). If your client asks for an attorney at any time during the questioning, it must stop. Edwards v Arizona, 451 US 477; 101 SCt 1880; 68 LEd2d 378 (1981); People v Gonyea, 421 Mich 462 (1984). He may not be further interrogated until counsel is made available, unless he initiates further communication with the police. People v Paintman, 412 Mich 518 (1981).
Also, the confession should be suppressed if it was obtained without the police informing the defendant that an attorney retained for him was available for him to speak with, even if he has not asked to speak with an attorney. People v Bender, 452 Mich 594 (1996). In this arena, Michigan law is stronger than federal law: there is no such requirement under federal law. Moran v Burbine, 475 US 412; 106 SCt 1135; 89 LEd2d 410 (1986).
Once a prisoner says that he or she wants to remain silent, interrogation may continue only if a significant interval has elapsed, Miranda warnings are given again, or the subsequent interrogation involves a different crime. People v Catey, 135 Mich App 714 (1984).
9-3 Sixth Amendment Violations
Had the right to counsel attached at the time of the questioning?
The right to counsel attaches when judicial proceedings are initiated. Once the right to counsel has attached, the police may not interrogate your client unless counsel is present. The Sixth Amendment right to counsel is distinct from and not necessarily co-extensive with the Fifth Amendment right to counsel. Rhode Island v Innis, 446 US 291; 100 SCt 1682; 64 LEd2d 297 (1980).
The confession must be suppressed if it was obtained after a request for or an expression of intention to retain counsel at arraignment, Michigan v Jackson, 475 US 625; 106 SCt 1404; 89 LEd2d 631 (1986); People v Wright, 441 Mich 140 (1992). Similarly, suppression is warranted if the confession was obtained while the defendant was represented by counsel on a second case. Arizona v Roberson, 486 US 675; 108 SCt 2093; 100 LEd2d 704 (1988).
Who initiated the conversation?
If the police initiated the conversation without counsel present, the statement must be suppressed.
Was your client's confession voluntary?
Even where Miranda warnings were satisfactorily given and voluntarily waived, your client's statements must be suppressed if they are not voluntary. Miranda v Arizona, 384 US 436; 86 SCt 1602; 16 LEd2d 694 (1966); People v Paintman, 412 Mich 518 (1982).
What were the circumstances of the interrogation?
Courts will consider the totality of the circumstances in deciding voluntariness, Colorado v Connelly, 479 US 157; 107 SCt 515; 93 LEd2d 473 (1986); People v Sexton, 458 Mich 43 (1998); People v Cipriano, 431 Mich 315 (1988); People v Delisle, 183 Mich App 713 (1990); including:
1. physical abuse or threats of abuse;
2. your client's age mental capacity, intelligence, experience with the police and physical condition;
3. threats or promises made by the police, Lynum v Illinois, 368 US 908; 82 SCt 190; 7 LEd2d 128 (1961); People v Richter, 54 Mich App 598 (1974);
4. lack of advice of constitutional rights;
5. length and circumstances of the interrogation;
6. delay in bringing him or her before a magistrate; or holding him or her incommunicado; or
7. whether the confession was made under the compulsion of legal process or reporting requirements.
Once you raise issues of voluntariness, the prosecution must prove by a preponderance of the evidence that the statement was voluntarily made. Lego v Twomey, 404 US 477; 92 SCt 619; 30 LEd2d 618 (1972); People v Sears, 124 Mich App 735 (1983).
9-5 Fruit of a Fourth Amendment Violation
Was the interrogation preceded by an illegal search or seizure?
If the statement is a "fruit" of a Fourth Amendment violation (your client was arrested without probable cause or your client confessed after being confronted with evidence which was illegally seized), it should be suppressed, Dunaway v New York, 442 US 200; 99 SCt 2248; 60 LEd2d 824 (1979), unless the causal chain is broken and the statement is an independent act of free will. Brown v Illinois, 422 US 590; 95 SCt 2254; 45 LEd2d 416 (1975); People v Malach, 202 Mich App 266 (1993); People v Kelly, 231 Mich App 627 (1998).
9.1 Motion to Suppress Statements (multiple grounds) [Download: WP | Word | PDF]
COURT FOR THE COUNTY OF
____________________________________
PEOPLE OF THE
STATE OF MICHIGAN,
Plaintiff,
vs No. 
Hon. 
,
Defendant.
_____________________________________/
The defendant, 
, by 
attorney, moves this Court for an order suppressing all oral
and written statements made by 
at the time of and subsequent to 
arrest. This motion
is based on the 
to the United States Constitution and the following:
1. 
was arrested on 
and charged with 
.
2. 
allegedly made statements to the police.
3. 
4. 
statements are fruits of that illegal search or seizure and must be suppressed. Dunaway v
New York, 442 US 200; 99 SCt 2248; 60 LEd2d 824 (1979).
5. 
was in custody at the time 
made statements to the police.
6. 
statements were made in response to police questioning.
7. The police failed to advise 
of 
rights pursuant to Miranda v Arizona, 384 US 436;
86 SCt 1602; 16 LEd2d 694 (1966).
8. Because of 
did not understand 
Miranda rights.
9. 
did not waive 
Miranda rights.
10. 
waiver was not valid. People v Cheatham, 453 Mich 1 (1996).
11. The police continued to question 
after 
asserted 
right to silence. People
v Slocum, 219 Mich App 695 (1996).
12. The police continued to question 
after 
asserted 
right to counsel. Edwards
v Arizona, 451 US 477; 101 SCt 1880; 68 LEd2d 378 (1981); People v Gonyea, 421 Mich 462 (1984).
13. These circumstances violated 
constitutional right to silence and require that 
statements be suppressed. US Const, Am V; Mich Const §17; Miranda v Arizona, 384 US 436; 86 SCt 1602;
16 LEd2d 694 (1966).
14. 
right to counsel had attached at the time of the questioning.
15. The police questioned 
without counsel present.
16. 
did not initiate the conversation. Michigan v Jackson, 475 US 625; 106 SCt 1404; 89 LEd2d
631 (1986).
17. As a result, the Defendant's constitutional right to counsel was violated and requires that 
statements
be suppressed. US Const, Am VI; Rhode Island v Innis, 446 US 291; 100 SCt 1682; 64 LEd2d 297 (1980).
18. 
was physically abused by the police during the interrogation.
19. 
was intoxicated at the time of the interrogation.
20. 
intelligence level or maturity level or age made it impossible for 
to understand
the questioning. 
21. 
is extremely inexperienced with the police.
22. The interrogation was extremely long and unfair to 
23. 
was threatened by the police. 
24. 
was promised leniency by the police. 
25. 
confession was the product of duress. 
26. Based on the totality of the circumstances, 
confession was not voluntary and must be
suppressed. Colorado v Connelly, 479 US 157; 107 SCt 515; 93 LEd2d 473 (1986); People v Cipriano, 431
Mich 315 (1988); People v Delisle, 183 Mich App 713 (1990); People v Sexton (On Remand), 236 Mich App
525 (1999).
For these reasons, 
requests that this Court suppress all oral and written statements.
Respectfully submitted,
___________________________
Attorney for Defendant