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Suppressing Statements and Confessions Made to Police

Thanks to television crime shows, almost everyone is familiar with the Miranda warnings (i.e. the requirement of law enforcement to inform an arrestee of the right to remain silent, the right to an attorney, that if you give up these rights anything you say can be used against you, etc.). Unlike television, however, it is not always clear whether or not you are under arrest when speaking with law enforcement. Perhaps the police are only questioning you. Maybe you are being interviewed as a witness rather than a suspect. At what point exactly must law enforcement read you the Miranda rights? In Commonwealth v. Ingram, 814 A.2d 264 (Pa. Super. Ct. 2002), the Pennsylvania Superior Court held that Miranda warnings are required whenever a suspect is subject to a “custodial interrogation,” meaning, whenever a person has “been deprived of his [or her] freedom of action in any significant way.” Specifically, the Superior Court found:

Miranda warnings are required where a suspect is subject to custodial interrogation. Custodial interrogation has been defined as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his [or her] freedom of action in any significant way.” Interrogation occurs where the police should know that their words or actions are reasonably likely to elicit an incriminating response from the suspect.

Id. at 270-71. The term Miranda, of course, refer to the U.S. Supreme Court decision in Miranda v. Arizona, 384 U.S. 436 (1966) where the high Court upheld the fifth amendment’s constitutional privilege against self-incrimination finding that:

the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. …. Prior to any questioning, 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.

 Id. at 444-45.  Since the Miranda decision, the Supreme Court has broadened the scope of this Constitutional protection, noting that a conversation with law enforcement is a custodial interrogation warranting a reading of the Miranda rights whenever "a reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave." Thompson v. Keohane, 516 U.S. 99, 112 (1995).

 As a general matter, when the state obtains evidence in violation of a suspect’s constitutional rights, that evidence must be excluded from trial. See Mapp v. Ohio, 367 U.S. 643 (1961). Therefore, any statements made by a suspect during a custodial interrogation are subject to suppression if law enforcement has failed to first advise the suspect of their Constitutional rights. In other words, an incriminating statement or confession can be thrown out and not be used against in Court if it was obtained in a custodial interrogation without a reading of the Miranda rights.

What happens, however, when a person makes two incriminating statements, the first without the Miranda warning and the second afterward a Miranda warning. For example, the police interrogate a suspect without first mirandizing him. During that interrogation the suspect admits to a crime. He is then handcuffed and read his Miranda rights and asked to sign a written statement memorializing the contents of the prior confession. If the first statement was made during a custodial interrogation, then that statement is subject to suppression for the failure of law enforcement to protect his or her constitutional rights. You might be surprised to learn that the second statement could possibly be thrown out as well, even though the Miranda warning had been read. In Com. v. Spotts, 3491 A.2d 132, 134 (Pa. Super. Ct.1985) the Pennsylvania Superior Court found that the entire contents of a second interrogation could be suppressed as an exploitation of the first tainted statement. Indeed, the Court noted: 

where an accused makes two inculpatory statements, the first without, and the second with, Miranda warnings, the Commonwealth must establish that the second statement was not the exploitation of the first. This means that the Commonwealth must establish that the second statement was obtained in circumstances sufficiently distinguishable from the circumstances in which the first statement was obtained to purge it of the first statement's taint. To determine whether the second statement was purged of the first statement's taint, all of the circumstances in which the two statements were made must be examined. If that examination discloses that the Commonwealth has not sustained its burden of establishing that there was no taint, the second statement, as well as the first, must be suppressed.

Id. at 134.[1] The underlying purpose of suppressing a second statement as the fruit of a prior illegal interrogation was explored in Com. v. Marabel, 283 A.2d 285, 294 (Pa. 1971) where the Pennsylvania Supreme Court found such second statements to be involuntary psychological effects of the earlier unlawfully obtained admission or confession. In suppressing the second statement, the Court illustrated the adverse effect that the illegally obtained statement can have upon the accused and his constitutional protection from self incrimination:

(A)fter an accused has once let the cat out of the bag by confessing, no matter what the inducement, he is never thereafter free of the psychological and practical disadvantages of having confessed. He can never get the cat back in the bag. The secret is out for good. In such a sense, a later confession always may be looked upon as fruit of the first.

 Id. at 294 citing in United States v. Bayer, 331 U.S. 532, 540 (1947).

 To determine whether or not a second interrogation is “sufficiently distinguishable” from the circumstances of the first unlawful interrogation, Pennsylvania Courts have measured the time between the two interrogations and found that shorter intervals of time cannot adequately overcome the taint of the first illegal interrogation. For example, the Pennsylvania Supreme Court held in Com. v. Ware, 265 A.2d 790 (Pa. 1970) that a short time lapse between the illegally obtained oral admission of defendant charged with manslaughter, aggravated robbery, and conspiracy and the subsequent written confession (prior to which adequate warnings were given) was not sufficient to remove the taint of the illegal custodial interrogation. In Ware the Commonwealth argued that the accused gave his incriminating oral statement one and one-half hours before the written confession was begun, during which time the accused was given the required warnings and was allowed to see his mother. Those facts, the Commonwealth argued, show that the written confession was not tainted by the prior illegal questioning and confession, and hence the written confession was properly admitted. The Pennsylvania Supreme Court disagreed, finding the Commonwealth’s argument to be without merit due to the short time lapse between the unlawful custodial interrogation and the second related statement (i.e. only one and a half hours had lapsed).

In Com. v. Brooks, 364 A.2d 652 (Pa. 1976) the Pennsylvania Supreme Court held that a confession by the defendant made less than three hours after the initial illegal arrest following a homicide was the fruit of initial illegality and should have been suppressed, notwithstanding the fact that the defendant was in the meantime confronted with the objective reality of a polygraph examination which, the prosecution claimed, separated the confession from initial illegality so as to permit its introduction into evidence. The Supreme Court disagreed and suppressed the second statement finding the difference in time between the illegal arrest and the subsequent statement was less than three hours.

In Com. v. Flowers, 369 A.2d 362 (Pa. Super. Ct. 1976) the Pennsylvania Supreme Court found that an incriminating statement followed within two hours of a defendant’s illegal arrest; therefore it could not be maintained that there was any intervening act of free will of the defendant, who was warned of his constitutional right to remain silent by a trooper who testified that the defendant understood all of his rights. The Court found there was no attenuation of primary taint resulting from the illegal arrest and that the statement should have been suppressed. The difference in time between the illegal arrest and the subsequent statement was only two hours.

In Com. v. Farley, 364 A.2d 299 (Pa. 1976) the Pennsylvania Supreme Court held that a defendant's oral and written admissions came shortly after his illegal arrest, the defendant was not allowed to leave the police station, the defendant did not have contact with anyone during his detention but was subjected to continuous police control and interrogation, there were no intervening events between the defendant's illegal arrest and his subsequent confessions. The Pennsylvania Supreme Court found that such confessions should have been suppressed.

[1] See also Wong Sun v. United States, 371 U.S. 471 (1963); Commonwealth v. Chacko, 459 A.2d 311 (Pa. 1983); Commonwealth v. Marabel, 283 A.2d 285 (Pa. 1971); Commonwealth v. Banks, 239 A.2d 416 (Pa. 1968); Commonwealth v. Bordner, 247 A.2d 612 (Pa. 1968); Com. v. Spotts, 491 A.2d 132, 134 (Pa. Super Ct. 1985).


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