How to Apply Miranda Violations in Order to Suppress Non-testimonial Physical Evidence

Post Authored by Michael W. Orescanin

The Fifth Amendment right against self-incrimination and the right to an attorney, also known as Miranda Rights, are one of the most known rights to the average person. These rights are known as Miranda Rights, because of a United States Supreme Court case called Miranda v. Arizona.  

The Supreme Court in Miranda v. Arizona held that an officer is required to read specific rights to suspects after taking them into custody. The rights are required to be read if the officer intends to conduct a custodial interrogation. Any statements made from suspects during a police officer’s questioning or interrogations are found inadmissible in the prosecution’s case in chief if the officer does not read the Miranda rights first.  Miranda v. Arizona, 384 U.S. 436 (1966). “[I]f 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.” Id. at 467-66. The Court further stated that: “[a]ny statement taken after the person invokes his privilege [to remain silent] cannot be other than the product of compulsion, subtle or otherwise.” Id. at 474. “[U]nless and until such [Miranda] warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.” Id. at 479. The last sentence laid the foundation for future cases.

I recently represented a man who was charged with Driving Under the Influence of Alcohol (“DUI”). He was first pulled over for speeding in the middle of the night. Before the officer approached my client, he checked my client’s criminal history and found a bench warrant for my client’s failure to appear in traffic court. The officer immediately went to my client, advised him that he was under arrest for the bench warrant, handcuffed him, and placed him in the back of the squad car. It wasn’t until the officer performed an inventory search of my client’s vehicle that he noticed four unopened cans of beer. The officer also had issues turning off the car, because it could only be done by pulling the fuse out of the interior fuse box.

My client was then taken out of the back of the squad car and unhandcuffed. However, he was told that he was not free to leave and needed to turn off the car. Immediately after my client failed to turn off the car, the officer asked how much he had to drink. My client said, “nothing.” The officer asked him again. This time, it was “two beers,” from my client. The officer then immediately forced my client to take the Horizontal Gaze Nystagmus (“HGN”) test and demanded him to perform all the standard field sobriety tests.  Not once did the officer read my client his Miranda rights before asking about the number of beers he drank, or why he needed to take the breathalyzer at the police station.  This was found in the squad car’s dash cam video and audio surveillance. I was livid at the fact this officer purposely failed to tell my client about his Miranda rights. I wondered how it could be possible to have someone arrested for one offense, and then coerced into incriminating himself for another offense.

I spoke to many colleagues about my client’s wrongful arrest. Many of them said that I would have a problem suppressing the field sobriety tests and breathalyzer test results, because they were non-testimonial evidence under Miranda. I also looked into the fruit of the poisonous tree doctrine, but my search wasn’t very fruitful. That doctrine only applies to Fourth Amendment violations. I then did what every young lawyer does: read case law and conduct legal research. At first, my research on Miranda violations corroborated the stories my colleagues already told me. However, everything changed when I found U.S. v. Patane, 542 U.S. 630 (2004).

In U.S. v Patane, a man was arrested for violating a restraining order in his home. While the defendant was being read his Miranda rights, he interrupted and said he knew where the pistol was, which the police were looking for in a separate incident. The defense attorney filed a Motion to Suppress, which was granted by the trial court on the basis that the officer lacked probable cause to arrest the defendant. However, the trial court did not rule on the gun being a fruit of an unwarned statement. The Tenth Circuit then held the gun should be suppressed, because it was the fruit of an unwarned statement. However, the Supreme Court held “that a failure to give a suspect Miranda warnings does not require suppression of the physical fruits of the suspect’s unwarned but voluntary statements.” Id. at 630. Further, it held that “[t]he Self-Incrimination Clause provides: ‘No person . . .  shall be compelled in any criminal case to be a witness against himself.’” Id. at 637 (citing U.S. Const. amend. V). While people know about the Fifth Amendment and the right to not self-incriminate, they do not know the complete scope of protections and rights they have under that Amendment.  See id. at 637 (holding that the right against self-incrimination cannot be violated by introducing nontestimonial evidence from voluntary statements).

With this in mind, did the Court in Patane hold that non-testimonial evidence obtained as a result of involuntary statements violates the right against self-incrimination and requires exclusion?

The following quotes below show that it held that non-testimonial evidence obtained by unwarned and involuntary statements are not admissible:

“[I]n Miranda, the Court concluded that the possibility of coercion inherent in custodial interrogations unacceptably raises the risk that a suspect’s privilege against self-incrimination might be violated.” Id. at 639 (citing Dickerson v. U.S., 530 U.S. 428, 434-35 (2000); Miranda, 384 U.S. at 467.).

“To protect against this danger, the Miranda rule creates a presumption of coercion, in the absence of specific warnings, that is generally irrebuttable for the purposes of the prosecution’s case in chief.” Id.

“We have repeatedly explained that those subjected to coercive police interrogations have an automatic protection from the use of their involuntary statements (or evidence derived from their statements) in any subsequent criminal trial.” Patane 542 U.S. at 640 (citing Chavez v. Martinez, 538 U.S. 760, 769 (2003).

This language lays the foundation for practitioners to exclude non-testimonial evidence. The combination of the Court’s reasoning in Patane with the evidence showing my client’s statements were involuntary persuaded the judge to suppress all the evidence against my client for his DUI charge.

While coercion and involuntary statements are driven by facts, it is vital to present as many facts and circumstances as possible to show the defendant did not voluntarily make evidentiary statements. This can be first be shown by the fact that the defendant was in police custody, and that his freedom was restricted. Second, the defendant was not given his Miranda rights before the officer tried to elicit statements from him. Third, the Miranda rights were not waived by the defendant. By showing these three facts in a Motion to Suppress Evidence Derived from a Miranda Violation, the practitioner sets up the basis for an appeal if the trial court denies the Motion to Suppress.

About the Author:

moMichael W. Orescanin is an associate attorney of the Chicago law firm, Illinois Advocates.  His primary area of concentration is criminal defense, and he serves clients in Cook, DuPage, Kane, Kendall, DeKalb and Will Counties. 

Michael, a first generation Panamanian-American fluent in Spanish, attributes his diverse upbringing along with his grandfather’s passion and success as a criminal defense trial lawyer in Panama as his foundation to practicing criminal defense.

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