UNITED STATES DISTRICT COURT

__________________ DISTRICT OF TEXAS
										
__________________  DIVISION

UNITED STATES OF AMERICA	                 §
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BRIEF IN SUPPORT OF MOTION TO SUPPRESS EVIDENCE

TO THE HONORABLE ///, JUDGE, UNITED STATES DISTRICT COURT FOR THE /// DISTRICT OF TEXAS, /// DIVISION:

BRIEF IN SUPPORT OF MOTION TO SUPPRESS EVIDENCE

TO THE HONORABLE ///, JUDGE, UNITED STATES DISTRICT COURT FOR THE /// DISTRICT OF TEXAS, /// DIVISION:
I.
FACTS

II.
PROBABLE CAUSE TO ARREST
	Law enforcement officers may arrest a person in a public place, without a warrant if the agents have probable cause.  United States v. Watson, 96 S.Ct. 820, 423 U.S. 408, 46 L.Ed.2d 598 (1976); United States v. Roberson, 650 F.2d 84 (5th Cir. 1981).  Whether the warrantless arrest of a Defendant is constitutionally valid depends on whether, at the moment the arrest is made, the officers had probable cause to make it; that is, whether at that moment the officers had facts within their knowledge and of which they had reasonably trustworthy information, that were sufficient to warrant a prudent man in believing that the defendant had committed or was committing an offense.  Beck v. Ohio, 85 S.Ct. 223, 225, 379 U.S. 89, 91, 13 L.Ed.2d 142 (1964); Henry v. United States, 80 S.Ct.168, 361 U.S. 98, 4 L.Ed.2d 134 (1959).  The standard for probable cause to arrest without a warrant is at least as stringent as the standard of probable cause for arrest with a warrant.  Whiteley v. Warden, 91 S.Ct. 1031, 401 U.S. 560, 28 L.Ed.2d 306 (1971); Wong Sun v. United States, 83 S.Ct. 407, 371 U.S. 471, 9 L.Ed.2d 441 (1963).  Where a suspect is found in a private dwelling or any place where he has a reasonable expectation of privacy an arrest warrant is required before officers may enter and effectuate a legal arrest, unless there are exigent circumstances present which make the acquisition of a warrant impractical.  Payton v. New York, 100 S.Ct. 1371, 445 U.S. 573, 63 L.Ed.2d 639 (1980); United States v. Blake, 632 F.2d 731 (9th Cir. 1980).  A citizen has an expectation of privacy in an office that is not open to the public.  Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968) [expectation of privacy in union office].  At a hearing on a motion to suppress evidence the burden is on the government to justify a search or an arrest without a warrant.  United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 96 L.Ed. 59 (1951); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).  Therefore the government must prove probable cause to arrest the defendant and show that an arrest warrant was unnecessary.
III.
FRUIT OF THE POISONOUS TREE
	A statement or confession is not admissible if it was acquired as a result of an illegal seizure of the defendant unless there are sufficient intervening events which break the connection between the illegal detention and the confession.  Dunaway v. New York, 99 S.Ct. 2248, 442 U.S. 200, 60 L.Ed.2d 824 (1979); Wong Sun v. United States, 83 S.Ct. 407, 371 U.S. 471, 9 L.Ed.2d 441 (1963).  United States Supreme Court has set out four factors to be considered in determining whether there has been a sufficient act of free will so as to purge the taint. Those factors are:
	1.	Whether Miranda warnings were given;
	2.	The temporal proximity of the arrest and the confession;
	3.	The presence of intervening circumstances; and
	4.	The purpose and flagrancy of the official conduct.
Brown v. Illinois, 422 U.S. 590, 95 S.Ct.2254, 45 L.Ed.2d 416 (1975); Taylor v. Alabama, 457 U.S. 687, 102 S.Ct.2664, 73 L.Ed.2d 314 (1982).  In Taylor the Supreme Court found that the passage of six hours between the arrest and the confession and the fact that the suspect was permitted a short visit with his girlfriend and a male companion before he confessed were not sufficient intervening events to purge the taint of the illegal arrest.  The prosecution bears the burden of proving that the confession is admissible.  Taylor v. Alabama, supra.

IV.
MIRANDA WARNINGS
	The Supreme Court ruled in Miranda v. Arizona, supra, that as a prerequisite to custodial interrogation, a Defendant must be warned that:
	(1)	He has a right to remain silent;
	(2)	That any statement he does make may be used against him;
	(3)	That he has the right to consult with any attorney or to have an attorney present at any questioning; and,
	(4)	That if he cannot afford to hire an attorney, that one will be appointed to represent him.
These warnings must be given to the defendant at the commencement of any questioning.  Miranda v. Arizona, 384 U.S. 436, 86 S.Ct.1602, 16 L.Ed.2d 694 (1966); Fare v. Michael C., 99 S.Ct. 2560, 442 U.S. 707, 61 L.Ed.2d 197, rein. den. 100 S.Ct. 186, 444 U.S. 887, 62 L.Ed. 2d 121 (1979); Harryman v. Estelle, 616 F.2d 870 (5th Cir.1980), cert. den. 101 S.Ct. 161; Gholson v. Estelle, 675 F.2d 734 (5th Cir. 1982); United States v. Nash, 563 F.2d 1166 (5th Cir. 1977); Moore v. Ballone, 658 F.2d 218 (4th Cir. 1981).  Even routine questions require that Miranda warnings be given prior to asking the questions.  United States v. Geln Archila, 677 F.2d 809 (11th Cir. 1982), cert. den. 103 S.Ct. 165.  The warnings must actually be given. A Defendant’s statement that he understands his rights is not sufficient without the actual warnings.  United States v. Espinosa-Orlando, 704 F.2d 507 (11th Cir. 1983).  The Miranda warnings are an absolute prerequisite to interrogation and no amount of circumstantial evidence that a person may have been aware of his rights will suffice in place of the actual warnings. Miranda v. Arizona, supra.  Thus, Miranda warnings must be given prior to any interrogation at all. Giving the Miranda warnings in the middle of the interrogation or just prior to the signing of a statement is not sufficient and any statement acquired under that circumstance would not be admissible.  Miranda v. Arizona, supra; Moore v. Ballone, supra.
V.
CUSTODIAL INTERROGATION
	In deciding whether a confession is admissible into evidence, it must first be determined whether or not the confession was a product of the custodial interrogation of the Defendant.  Miranda v. Arizona, 384 U.S. 436, 86 S.Ct.1602,16 L.Ed.2nd 694 (1966); United States v. Nash, 563 F.2d 1166 (5th Cir.1977); United States v. Brown, 531 F.Supp 37 (D.C. Mont. 1981).  Custodial interrogation means “questioning initiated by law enforcement officers after a person has been deprived of his freedom in any significant way.”  Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. at 1612.  In determining whether a Defendant is in custody for purposes of Miranda, a different analysis is employed than when determining whether a suspect is under “arrest”.  The Fifth Circuit has identified four factors that should be considered when determining whether a person is in “custody” for purposes of Miranda:
	(1)	Whether there was probable cause to arrest;
	(2)	The subjective intent of the police to hold the suspect;
	(3)	The subjective belief or the Defendant as to the status of his freedom; and,
	(4)	Whether the investigation has focused on the suspect.
United States v. Wasler, 670 F.2d 539 (5th Cir.1982); United States v. Roberson, 650 F.2d 84 (5th Cir.1981), cert. den 102 S.Ct. 675, 454 U.S. 1100, 70 L.Ed.2d 642; United States v. Jonas, 639 F.2d 200 (5th Cir. 1981); United States v. Nash, supra.
	The commentators favor a reasonable man test, “whether, bearing in mind the person’s age, intellect, experience and physical condition, he was reasonably lead to believe that he was in fact in custody.” Wright, Federal Practice and Procedure Criminal 2nd, §76.1, pp.132-133, and authorities cited therein.  This test has been adopted by the Ninth Circuit. In United States v. Luther, 521 F.2d 408, 410 (9th Cir.1975), the Court stated:
“The factors to be considered are the language used to summon him, the physical surroundings of the interrogation, the extent to which he is confronted with evidence of his guilt, and the pressure exerted to detain him.  If the person reasonably believes that he cannot leave freely, he is considered in custody and a Miranda warning is required.”

The fact that a suspect came to the police station voluntarily does not mean he was not in custody while he was there.  United States v. Brown, 531 F.Supp 37 (D.C. Mont. 1981).  A Defendant who is allowed to leave at the conclusion of the interrogation may be in custody during the questioning.  Fields v. Wyrick, 682 F.2d 154 (8th Cir. 1982), rev’d on other gds., 103 S.Ct. 394, on remand 706 F.2d 879.
	“[T]he special procedural safeguards outlined in Miranda are required not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation. ‘Interrogation,’ as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself.”  Rhode Island v. Innis, 100 S.Ct. 1682, 1689, 446 U.S. 291, 300, 64 L.Ed.2d 297 (1980).  Voluntary statements are not excluded from evidence for lack of warnings.  “[T]he Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent.  That is to say, the term ‘interrogation’ under Miranda refers not only to express questioning but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.”  100 S.Ct. at 1689, 4465 U.S. at 300-301. Any express questioning by officers, even if it is not intended to elicit a statement, is interrogation for purposes of Miranda.  Harryman v. Estelle 616 F.2d 870 (5th Cir. 1980), cert. den. 101 S.Ct. 161, 449 U.S. 860, L.Ed.2d 76.  ‘Words or actions by the officers, other than those normally attendant to arrest and custody, are interrogation, if an objective observer, with the same knowledge of the person as the officer has, would, on the sole basis of hearing the officer’s remarks, infer that the remarks were designed to elicit an incriminating response.”  Wright, supra, 137-138, citing United States v. Jordan, 557 F.2d 1081 (5th Cir. 1977) and Combs v. Wingo, 465 F.2d 96 (6th Cir. 1972).  Thus, any effort on the part of law enforcement officers to elicit an incriminating response from a suspect constitutes interrogation for purposes of Miranda. 
IV.
VOLUNTARINESS OF CONFESSION

	If it is found that Miranda rights were given and that the rights were voluntarily, knowingly and intelligently waived, then a Court must determine whether or not the confession itself was given voluntarily.  United States v. Sims, 719 F.2d 375 (filth Cir. 1983); United States v. Morris, 491 F.Supp. 226 (D.C. Ga. 1980).  The test for voluntariness is whether the confession was extracted by any sort of threats or violence or obtained by any direct or implied promise, however slight, or by exertion of any improper influence.  Hutto v. Ross, 97 S.Ct. 202, 429 U.S. 28, 50 L.Ed.2d 194 (1976); Brady v. United States, 90 S.Ct. 1463, 397 U.S. 742, 25 L.Ed.2d 747 (1970).  The court must determine whether, under the totality of the circumstances, the self-incriminating statements are a product of the accused’s free will.  Greenwald v. Wisconsin, 390 U.S. 519, 521, 88 S.Ct. 1152, 1154, 20 L.Ed.2d 77 (1968); Boulden v. Holman, 89 S.Ct. 1138, 394 U.S. 478, 22 L.Ed.2d 433 (1969); Martinez v. Estelle, 612 F.2d 173 (5th Cir. 1980).  The prosecution bears the burden of showing by a preponderance of the evidence that a confession is voluntary.  Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 626-27, 30 L.Ed.2d 618 (1972).  If an individual’s will was overborne or if his confession was not the product of his rational intellect and freewill, his confession is inadmissible.  The standards are applicable whether a confession was coerced by physical intimidation or by psychological pressure and is equally applicable to a drug-induced statement.  Townsend v. Sain, 83 S.Ct. 745, 372 U.S. 293, 9 L.Ed.2d 770 (1963).  The question of the voluntariness of a confession requires an assessment of human motivation and behavior.  United States v. Martinez-Perez, 625 F.2d. 541 (5th Cir. 1980).  The totality of the circumstances approach requires a reviewing court to consider the specific tactics utilized by the police in eliciting the admission, the details of the interrogation and the character of the accused.  Rachlin v. United States, 723 F.2d 1373 (8th Cir. 1983).  A confession acquired in exchange for a promise of immunity is not considered voluntary.  United States v. Weiss, 599 F.2d 730, reh.den. 603 F.2d 860 (5th Cir. 1979).  A promise of leniency or a threat of additional prosecution constitutes psychological coercion that will render a confession inadmissible.  Harris v. Beto, 367 F.2d 567 (5th Cir. 1966), on remend, 280 F.Supp. 532.  A statement to a Defendant that it would be better if he made a statement and that it would be in his best interest to confess would constitute a direct or implied promise that would render a confession inadmissible.  McLallen v. Wyrick, 498 F.Supp. 137 (D.C. Mo. 1980).  The use of deception to acquire information or an incriminating statement will also render a confession inadmissible.  United States v. Massey, 550 F.2d 300 (5th Cir. 1977), on remand, 437 F.Supp. 843.
VII.
CONFESSION OBTAINED AFTER ILLEGAL ARREST
	Even though a confession after proper Miranda warnings may be voluntary for purposes of the Fifth Amendment, it will be deemed inadmissible if it was acquired as a result of an illegal seizure of the defendant under the Fourth Amendment if there are not sufficient intervening events which break the connection between the illegal detention and the confession.  Dunway v. New York, 99 S.Ct. 2248, 442 U.S. 200, 60 L.Ed.2d 824 (1979).  In determining whether the confession has been purged of the taint of the illegal arrest, a Court should consider the temporal proximity of the arrest and the confession, whether Miranda warnings were given, whether there are any significant intervening events between the illegal detention and the confession, and the purpose and flagrancy of the official misconduct.  Taylor v. Alabama, 102 S.Ct. 3664 (1982).  In Taylor the Supreme Court found that the passage of six hours between the arrest and the confession and the fact that the suspect was permitted a short visit with his girlfriend and a male companion before he confessed were not sufficient intervening events to purge the taint of the illegal arrest.  The prosecution bears the burden of proving that the confession is admissible.  Taylor v. Alabama, supra.  Thus, if the defendant was seized in violation of the Fourth Amendment, even a voluntary confession that is acquired a result of illegal detention will be inadmissible unless the State can prove the presence of significant intervening circumstances that would purge the taint of the illegal arrest.
V.
PRE-ARRAIGNMENT INVOCATION OF RIGHT TO COUNSEL
	In Edwards v. Arizona, 101 S.Ct. 1880, 451 U.S. 477, 68 L.Ed.2d 378 (1981), the Supreme Court held that when an accused invokes his right to have counsel present during custodial interrogation, the suspect is not subject to further interrogation by authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police.  Oregon v. Bradshaw, 103 S.Ct. 2830, 462 U.S. 1039, 77 L.Ed.2d 405 (1983); Smith v. Illinois, 105 S.Ct. 490, 469 U.S. 91, 83 L.Ed.2d 488 (1984).  The Supreme Court has gone on to emphasize that Edwards established a per se rule that, once a suspect has expressed a desire to speak to counsel, a waiver of the right to counsel, no matter how voluntary, can never be valid if made in response to further police questioning.  Solem v. Stumes 104 S.Ct. 1338, 465 U.S. 638, 79 L.Ed.2d 579 (1984).  In examining an alleged waiver of counsel, a reviewing court should “indulge in every reasonable presumption against waiver.”  Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424 (1977).
	When considering a claim of violation of the rule of Edwards v. Arizona, the court must make two distinct inquiries.  “First, courts must determine whether the accused actually invoked his right to counsel .... Second, if the accused invoked his right to counsel, courts may admit his responses to further questioning only on finding that he (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked.”  Smith v. Illinois, 469 U.S. 91, 95-96.  The rationale for the “bright line rule” in Edwards, was set forth by the Supreme Court in Smith v. Illinois; “In the absence of such a bright-line prohibition, the authorities through ‘badger[ing]’ or ‘overreaching’ - explicit or subtle, deliberate or unintentional - might otherwise wear down the  accused and persuade him to incriminate himself notwithstanding his earlier request for counsel’s assistance.... [citations omitted].  With respect to the waiver inquiry, we accordingly have emphasized that a valid waiver ‘cannot be established by showing only that [the accused] responded to further police initiated custodial interrogation.”’  Id., 469 U.S. at p.95; United States v. Webb, 755 F.2d 382 (5th Cir. 1985).  The burden of proving that an accused waived his previously invoked right to counsel rests on the government.  United States v. Webb, supra, 389; United States v. Charles, 738 F.2d 686, 692 (5th Cir. 1984).
VI.
POST ARRAIGNMENT INVOCATION OF COUNSEL
	The rule of Edwards v. Arizona has been applied by the Supreme Court to postarraignment questioning in Michigan v. Jackson, 106 S.Ct. 1404 (1986).  In that case the Defendant was taken before a magistrate where he requested that counsel be appointed to represent him.  After arraignment police officers renewed their interrogation of the Defendant.  Prior to questioning, the officers properly advised the Defendant of his Miranda rights.  A confession was subsequently obtained.  The Supreme Court held that the reasons for prohibiting the interrogation of an uncounseled prisoner who has requested legal counsel are even stronger after he has been formerly charged with an offense than before and that the Sixth Amendment right to counsel at a post-arraignment interrogation requires at least as much protection as the Fifth Amendment right to counsel at any custodial interrogation.  Id., at pp. 1408-1409.
	Arraignment signals the initiation of adversary judicial proceedings and thus the attachment of the Sixth Amendment right to counsel.  Thereafter, government efforts to illicit information from the accused represents a “critical stage” at which the Sixth Amendment applies.  Michigan v. Jackson, supra at pp.1407-1408; Maine v. Moulton, 106 S.Ct. 477 (1985).  It is presumed that a Defendant requests a lawyer’s services at every critical stage of the prosecution.  The right to counsel does not turn upon a request by the Defendant.  Michigan v. Jackson, supra, at p. 1409 n.6; Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424 (1977).  The government has the burden of establishing a valid waiver of the right to counsel.  A court will indulge every reasonable presumption against waiver of right to counsel and doubts must be resolved in favor of protecting the constitutional claim.  Id. 	In Michigan v. Jackson, the state argued that the Defendant made a valid waiver of his Sixth Amendment rights by signing a post-arraignment confession after being advised of his constitutional rights.  As it did in Edwards, the court rejected the notion that, after a suspect’s request for counsel, advice of rights and acquiescence in police initiated questioning could establish a valid waiver.  The court found that “[j]ust as written waivers are insufficient to justify police initiated interrogations after the request for counsel in a Fifth Amendment analysis, so to are they insufficient to justify police initiated interrogations after the request for counsel in a Sixth Amendment analysis.”  Michigan v. Jackson, supra at pp. 1410-1411.  Thus, the court squarely held that “if police initiate interrogation after a Defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the Defendants right to counsel for that police initiated interrogation is invalid.”  Id. at p. 1411.	The government may argue that any post-arraignment statements by the Defendant were not the product of custodial interrogation and therefore not covered by Edwards v. Arizona and Michigan v. Jackson.  The fallacy in that argument is that the conversation which gave rise to those statements was initiated by government agents [in the Federal Courthouse] before the Defendant had an opportunity to obtain counsel.  An analogous case is United States v. Webb, 755 F.2d 382 (5th Cir.1985, rein. den.). In Webb the Defendant had invoked his right to counsel thereby causing the government agents to cease their questioning.  While Webb was in the E1 Paso County jail a corrections officer in the jail engaged him in conversation in regard to the facts of the offense, which led to his acquiescence in further conversation with government agents and a confession.  The government asserted that the corrections offlcer’s inquiries were not interrogation but merely administrative questions not barred by Edwards. The Fifth Circuit rejected that argument relying on Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 294 (1980).  “This passage and other references throughout the opinion to ‘questionings’ might suggest that Miranda rules were to apply only to those police interrogation practices that involved expressed questioning of a defendant while in custody.  We do not, however, construe the Miranda opinion so narrowly, ....” 100 S.Ct. at 1688-89.  “[T]he term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to illicit an incriminating response from the suspect.”  Id., 100 S.Ct. at 1689-90; United States v. Webb, supra at p. 388.  The focus should be on the perceptions of the suspect, rather than the intent of the police, the later being relevant to the inquiry only to the extent that it bears on whether the police should have known that their words or actions were reasonably likely to invoke an incriminating response.  United States v. Webb, supra at p. 388; Rhode Island v. Innis, 100 S.Ct. at 1690 n.7.  In the case at bar there should be no question that the police should have known that their questioning was reasonably likely to invoke an incriminating response.  Because the police did not respect the Defendant’s request for counsel and initiated questioning after such request, they violated the rules of Edwards and Michigan v. Jackson and any statements made by the Defendant after invocation of her right to counsel should be suppressed.
VII.
CONSENT TO SEARCH
	In Schneckloth v. Bustomonte, 412 U.S.218,93 S.Ct.2041,36 L.Ed.2d 854 (1973), the Supreme Court held that the validity of a purported consent to search was to be determined by a “voluntariness” test that is determined from a totality of all the circumstances.  (This is the same “voluntariness test for the admission of confessions. See Part above).  Whether a consent is voluntary or is the product of duress or coercion, express or implied, is a question of fact.  Knowledge of the right to refuse consent is a factor to be taken into account, however the government is not required to show such knowledge in order for there to be effective consent.  Account must be taken of “subtly coercive police questions as well as the possibly vulnerable subjective state of the person who consents .  ...[I]t is only by analyzing all the circumstances of an individual’s consent that it can be ascertained whether in fact it was voluntary or coerced.” Id.  This should be determined on a case by case basis.  The prosecution has the burden of proving that consent was freely and voluntarily given in order to justify a consent search. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968).
	WHEREFORE, PREMISES CONSIDERED, the Defendant prays that his\her motion to suppress be in all things granted and that the court suppress any of the Defendant’s statements and such other evidence acquired from the Defendant after his\her stop and arrest by a government agent.
							Respectfully Submitted,

							___________________________________
							Name
							State Bar No. 
							City, State, Zip
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							Attorney for Defendant							

					

CERTlFlCATE OF SERVICE

	This is to certify that a true and correct copy of the above and foregoing Brief In Support Of Motion To Suppress Evidence was hand delivered to ///, Assistant United States Attorney, /// Street, ///, Texas ///, on the /// day of ///, 20///.

							____________________________________
							Attorney for Defendant