IN THE FIFTIETH JUDICIAL DISTRICT, PARISH OF PEINE DE MORT
STATE OF LOUISIANA
No. _____

============================================

STATE OF LOUISIANA, Plaintiff,

v.

JOHN CLIENT, Defendant

============================================

MOTION TO SUPPRESS STATEMENTS

COMES NOW Mr. CLIENT, by counsel, and respectfully moves this Court pursuant to the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, Article 1, Sections 2, 3, 5, 13, 14, 16 & 17 of the Louisiana Constitution, La. Rev. Stat. Sect. 15:451, La. Code Crim. Pro. art. 703, and other law set out below, to suppress as evidence against him in the prosecution's case in chief, as rebuttal evidence, or as impeachment evidence, all statements of any nature obtained from him by government agents. As grounds for his motion Mr. CLIENT states:
1. [Note to counsel: Here briefly describe, to the extent possible, when the defendant was taken into custody, nature and circumstances of the detention and interrogation, nature of the statements obtained and other pertinent factors. NOT ALL OF THE FOLLOWING GROUNDS WILL BE APPLICABLE TO YOUR CASE. This motion must be tailored to the facts of the case:]

A. Mr. CLIENT was not adequately advised of his constitutional rights

2. After the defendant was taken into custody by law enforcement officials, those officials failed to advise him adequately of his rights guaranteed by the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States and Article 1 Section 13 of the Louisiana Constitution. Moreover, the officers questioned the defendant and obtained statements without obtaining a valid waiver of those constitutional rights.
3. In Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), the Supreme Court of the United States held that, prior to interrogation of a defendant who is in custody "or otherwise deprived of his freedom of action in any significant way," Id. at 444, the police must warn him (1) that he has a right to remain silent; (2) that any statement he makes may be used as evidence against him; (3) that he is entitled "to consult with a lawyer and to have a lawyer with him during interrogation"; (4) that an attorney will be appointed to represent him if he cannot afford to retain one; and (5) that he may exercise any of these rights at any point during the interrogation. Id. at 471. The Louisiana Constitution also requires police to inform the defendant fully of his reason for detention. In Miranda, the Supreme Court emphasized:
If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. . . .

Id. at 475 (citations omitted); see, also, La. Code. Crim. Pro. art 703(D) (putting the burden on the state to prove that a confession or statement is admissible). To meet its burden, the State must affirmatively prove not only that the waiver was voluntary, but also that it constituted "a knowing and intelligent relinquishment or abandonment of a known right or privilege." Edwards v. Arizona, 451 U.S. 477, 482, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981) (citing Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938)); see also Tague v. Louisiana, 444 U.S. 469, 470 (1980). "[C]ourts must indulge every reasonable presumption against the loss of constitutional rights." Illinois v. Allen, 397 U.S. 337, 343, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970); Smith v. Illinois, 469 U.S. 91, 105 S. Ct. 490, 83 L. Ed. 2d 488 (1984) (ambiguous statements not sufficient to justify finding of waiver).
4. Because in this case Mr. CLIENT was not adequately advised of his rights, did not fully understand them, and did not make a knowing, intelligent, and voluntary waiver of his constitutional rights, his statements to the police must be suppressed.
[Note to counsel: Special circumstances may render any purported waiver of rights ineffectual, where the defendant is particularly young, or suffers from mental retardation of mental illness. These considerations will generally be the same as may render a confession involuntary, see, Section D (below), although the burden of proof may be less stringent. For instance, a juvenile may not be interrogated before he has had "meaningful consultation" with an informed parent or an attorney. State in the Interest of Dino, 359 So. 2d 586 (La. 1978). See, e.g., Henry v. Dees, 658 F.2d 406, 407 n.1 (5th Cir. 1981) (Unit A) (20-year-old retarded person with an IQ between 65 and 69, and reading skills on a second grade level, could not voluntarily waive rights); Cooper v. Griffin, 455 F.2d 1142 (5th Cir. 1972)(15 and 16 year olds, I.Q.'s ranging between 61 and 67, and low level of reading comprehension not above third grade); State v. Green, 634 So. 2d 503 (La. App. 4th Cir. March 15, 1994) (defendant with IQ of 65 and ninth grade education could not knowingly and intelligently waive his rights)]

B. The officers failed to respect the defendant's assertion of his rights

5. When questioned, the defendant asserted his right to remain silent, and his right to have counsel present during questioning. "The request need not be formal or direct." State v. Abadie, 612 So. 2d 1 (La. 1993). Once the accused asserts his rights, his rights must be "scrupulously honored." Michigan v. Mosley, 423 U.S. 96, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975). Once the accused invokes his right to counsel, "the interrogation must cease until an attorney is present." Miranda v. Arizona, 384 U.S. at 474 (emphasis supplied). In Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981), the Court stated:
We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police.

Id., 451 U.S. at 484-485; see also Brewer v. Williams, 430 U.S. 387, 97 S. Ct. 1232, 51 L. Ed. 2d 424 (1977). "Good faith" on the part of the police is not relevant "because once the defendant has expressed his desire to deal with the police only through counsel, all successive officers who deal with the defendant are held to have knowledge of this fact." State v. Arceneaux, 425 So. 2d 740 (La. 1983); see also, State v. Abadie, 612 So. 2d 1 (La. 1993). Because in this case, the law enforcement officials did not "scrupulously honor" Mr. CLIENT's assertion of his rights, his statement must be suppressed.
C. The statement was taken in violation of defendant's Sixth Amendment rights

6. [Note to Counsel: Describe briefly the time that the statement was taken, emphasizing anything which could suggest that the right to counsel had attached.]

7. The right to counsel attaches at any "critical stage" in a criminal prosecution. United States v. Massiah, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964). Under the law of this State, once an attorney has been assigned to the defendant the state can no longer communicate with the defendant -- even to obtain a waiver -- without first consulting his attorney. State v. Hattaway, 621 So. 2d 796 (La. 1993). At a minimum, this occurs within 72 hours of the arrest when the defendant must appear before a judge or magistrate for "the purpose of appointment of counsel." La. Code Crim. Pro. art. 230.1
8. Since the interrogation was initiated by the officers after the defendant's right to counsel attached, the resultant statement must be suppressed. Indeed, even had the defendant initiated the contact, State v. Hattaway, 621 So. 2d 796 (La. 1993) forbids any interrogation -- except through counsel -- once counsel has been named.
D. The statement was not voluntarily made
9. The statements made to law enforcement officers while Mr. CLIENT was in custody were not "the product of an essentially free and unconstrained choice by its maker." Culombe v. Connecticut, 367 U.S. 568, 602, 81 S. Ct. 1860, 6 L. Ed. 2d 1037 (1961). Because the statements were not made voluntarily, admission of the statements at trial would violate the defendant's right to due process of law guaranteed by the Fourteenth Amendment to the United States Constitution. Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964). The state cannot meet its burden of proving beyond a reasonable doubt that the statement "was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises." La. Rev. Stat. Sect. 15:451 (1992).; State v. Jackson, 414 So. 2d 310 (La. 1982).
[Note to counsel: Set out the facts supporting the claim of coercion. In addition to actual violence, various factors influence a finding of involuntariness, including youth, mental illness, retardation, education, intoxication. See, e.g., State v. Jennings (La. 1979) (finding confession occurring 36 hours after booking involuntary when during booking police officer stuffed gun barrel in accused's mouth); State v. Zoerner, 418 So. 2d 604 (La. 1982) (court considered that defendant had only seventh-grade education in holding statement involuntary).]

10. The standard formulation of the voluntariness test was set out by the Supreme Court of the United States in Bram v. United States, 168 U.S. 532, 18 S. Ct. 183, 42 L. Ed. 568 (1897):
[A] confession, in order to be admissible, must be free and voluntary: that is, must not be extracted by any sort of threats or violence, nor obtained by the exertion of any improper influence. . . . A confession can never be received in evidence where the prisoner has been influenced by any threat or promise; for the law cannot measure the force of the influence used, or decide upon its effect upon the mind of the prisoner, and therefore excludes the declaration if any degree of influence has been exerted.

Id. at 542-43. Involuntariness may be shown not only by physical coercion, Brown v. Mississippi, 297 U.S. 278, 56 S. Ct. 461, 80 L. Ed. 682 (1936), but by a variety of other more subtle types of psychological coercion. See, e.g., Mincey v. Arizona, 434 U.S. 1343, 98 S. Ct. 23, 54 L. Ed. 2d 56 (1977) (inculpatory statements obtained during a hospital interview of wounded suspect after police ignored his request for an attorney held involuntary); Jurek v. Estelle, 623 F.2d 929 (5th Cir. 1980) (en banc).
11. Voluntariness turns solely on the circumstances surrounding the confession and not the probable trustworthiness of the statement. See Rogers v. Richmond, 365 U.S. 534, 540-44, 81 S. Ct. 735, 5 L. Ed. 2d 760 (1961); Jackson v. Denno, 378 U.S. at 376-77, 383-86. The prosecution has the burden of proving beyond a reasonable doubt that the defendant's confession was voluntary. State v. Jackson, 414 So. 2d 310 (La. 1982).
12. Because the statements by the defendant were involuntarily made, they cannot be used for impeachment or any other purpose by the prosecution at trial. Mincey v. Arizona, 434 U.S. at 1398 ("any criminal trial use against a defendant of his involuntary statement is a denial of due process of law") (emphasis in original).
E. Fruit of Prior Illegal Confession
[Note to counsel: The following paragraph should be included in situations in which the defendant first gave a statement which is inadmissible for one of the grounds previously discussed and subsequently made a second statement which, if judged independently, would be admissible. For example, where an officer obtains a confession through coercion, but the police later obtain a second confession which is voluntary and preceded by Miranda warnings and a waiver of rights which is otherwise voluntary, counsel should argue that the second confession is inadmissible because it is a product of the prior illegal confession.]

13. Moreover, any statements obtained from the defendant after the initial statements were obtained from him in violation of his constitutional rights must be suppressed because they were produced by the earlier illegal, coerced confession. See Darwin v. Connecticut, 391 U.S. 346, 350-51, 88 S. Ct. 1488, 20 L. Ed. 2d 630 (1968) (Harlan, J., concurring); see also Gilpin v. United_States, 415 F.2d 638 (5th Cir. 1969); United States v. Pierce, 397 F.2d 128 (4th Cir. 1968); Evans v. United States, 375 F.2d 355 (8th Cir. 1967); Killough v. United States, 315 F.2d 241, 244 (D.C. Cir. 1962); Ruffin v. United States, 293 A.2d 477 (D.C. App. 1972).
F. The statement was the product of an illegal arrest
14. At the time law enforcement officers took Mr. CLIENT into custody, they did not have a warrant for his arrest, nor did they have probable cause to believe that he had committed a crime. Detention of suspects for "investigatory" purposes on less than probable cause violates the Fourth and Fourteenth Amendments to the Constitution of the United States. Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248, 60 L. Ed. 2d 824 (1979); Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975); Davis v. Mississippi, 394 U.S. 721 (1969). The question of when a "seizure" requiring probable cause occurs is one of law to be determined by the courts. No formal declaration by the police of intent to arrest is necessary. Davis v. Mississippi, 394 U.S. at 726-27. Because the statements were derived directly from the illegal seizure of the petitioner, those statements must be suppressed. Taylor v. Alabama, 457 U.S. 687, 691-94, 102 S. Ct. 2664, 73 L. Ed. 2d 314 (1982); Dunaway v. New York, 442 U.S. at 212-13; Brown v. Illinois, 422 U.S. at 603-04; Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). Even where the defendant has waived his Miranda rights and given a confession, that confession must still be suppressed if it is the fruit of the illegal arrest.
G. The Statement was the product of an unconstitutionally prolonged detention

15. The Fourth Amendment to the United States Constitution requires that a person arrested without a warrant be taken before a judicial officer for a probable cause determination promptly following his arrest. Gerstein v. Pugh, 420 U.S. 103, 113-114, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975). In County of Riverside v. McLaughlin, 500 U.S. 44, 111 S. Ct. 1661, 114 L. Ed. 2d 49 (1991), the Supreme Court held that the defendant arrested without a warrant may be held no more than 48 hours before a judicial officer considers whether there was probable cause for an arrest. See also, La. Code Crim. Pro. art. 230.2; Culombe v. Connecticut, 367 U.S. 568, 584-585, 81 S. Ct. 1860, 6 L. Ed. 2d 1037 (1961). Failure to comply with the analogous federal rule requiring prompt presentation before a magistrate after arrest requires suppression of the statement. See McNabb v. United States, 318 U.S. 332, 63 S. Ct. 608, 87 L. Ed. 819 (1943); Mallory v. United States, 354 U.S. 449, 77 S. Ct. 1356, 1 L. Ed. 2d 1479 (1957).
WHEREFORE, premises considered, Mr. CLIENT respectfully moves that the statements taken from him be suppressed.
??