2L Crim Pro question Forum

[ftblryan]

Can statements illegally obtained in violation of Miranda give rise to probable cause for a warrant? Or does the warrant have to have separate probable cause independent of the statements?

I know that physical evidence obtained through illegally statements is valid under Patane. But I'm not sure if those statements can be the basis for probable cause to search and then get the physical evidence. The intervening factor of the warrant is my issue.

[kalvano]

I'm not sure there is case law directly on point. But courts seem pretty reluctant to bar the fruits of Miranda-defective admissions. See Patane, Michigan v. Tucker, etc.

If there is a case on this, I don't know about it. But I think it would depend on the circumstances surrounding the statement and the police conduct - is it more like Elstad or more like Seibert? And can you do a Gates-type analysis and see about corroboration?

It's a good question.

[ftblryan]

Well in my specific hypo, the police did not Mirandize the suspect at all but instead stated that another person had ratted them out. D then replied with a confession which gave rise to probable cause to search his house. So it wasn't a 1-2 confession style Seibert case. There were other facts that independently could have given rise to PC but everything was put in the warrant, which brings me to my next question: When a warrant has illegally obtained facts in there, say an illegal search that gave rise to PC for another search, the court can sever those facts from the warrant and determine if the warrant still has PC correct? Or is a warrant only severable for specific items that lack PC vs. items that have PC?

Also one more question: If a car is legally stopped per Terry with the owner of the car in the passenger seat and another person driving, what happens if the police obtain consent to search the car from the owner but the driver objects. I know for standing that a driver has a reasonable expectation of privacy in the car as does the owner, but must the objecting third party to the consent have a possessory interest in the place to be seized, or do they only need REOP, and if so does the driver have REOP enough to stop the search?

[kalvano]

1) In your hypo, is the suspect under arrest?

2) Terry stops are an automatic right to search the immediate area. If they want to search the whole car, I think they would just claim a common enterprise theory via Pringle. Aside from that, I don't think there is a reasonable expectation of privacy in a car. I could be wrong, I don't have my notes nearby for that class, and we didn't cover much of standing anyway.

[ftblryan]

Yea he is under custodial arrest in an interrogation room at the station

[kalvano]

It sounds like there should be a case for it, but that's off the map from what my class covered. In the absence of a case, I would say you're supposed to analyze whether there was actual interrogation.

Aside from that, I think the courts would approve the warrant. The general jurisprudence seems to be to not exclude the fruits of Miranda-defective statements in the absence of gross police misconduct.

[shepdawg]

The general rule is that tainted probable cause leads to the inadmissibility of all fruits sufficiently connected with the tainted probable cause. Your hypo depends on if the arrest was made on good probable cause and if the initial "he ratted me out" was voluntary.

[Green Crayons]

The general rule of fruit of the poisonous tree is not directly applicable to Miranda violations because it merely is a constitutional prophylactic. As noted above, courts are much more open to permitting some uses (but not all) of statements obtained in violation of Miranda. Just because the cases we have seen are in the context of trial evidence (case in chief evidence v. impeachment), there is no reason why this paradigm should not be applied in the context of evaluating the viability of the warrant.

I like the suggested Gates analysis of the warrant's underlying PC.

The threshold question: do the underlying policies of Miranda (confessions absent knowledge of procedural safeguards are inherently more untrustworthy due to the method of procurement) undercut the reliability of the information going into the warrant? The answer is yes.

The bigger question is: does this unreliability undercut the viability of that PC to a sufficient extent so as to render that information wholly unusable for PC? In Harris v. New York, if the court finds a statement made in violation of Miranda and otherwise admissible to be introduced for impeachment purposes to be so untrustworthy (due to Miranda policy fears) as to violate Due Process, that statement can be deemed wholly inadmissible. I would apply that logic to the case at hand: do the facts surrounding the statement make it wholly unusable? I'm thinking no, because the facts presented look like a "basic" Miranda violation - just merely neglecting to provide the warnings - as opposed to a Miranda violation in an exceptionally coercive environment that Miranda was particularly worried about. There is therefore nothing to suggest that this situation has any "plus" factors that would make the statement made in violation of Miranda inadmissible as impeachment evidence -- and therefore there is no reason why it should be inadmissible so as to establish PC in a warrant affidavit.

This answer must be couched in terms of the Elstad-Seibert dichotomy, whereby the more bad faith the Miranda violation starts looking, the more weight to being qualified as unusable. Not enough facts are provided here to suggest bad faith.

--

As to the ability to excise those statements from the affidavit, I think you should make the argument that a Franks-style preliminary hearing (which normally only covers warrants based on (a) fundamentally incorrect information, (b) lies, and (c) major mistakes) should be held on a similar theory that a warrant based on evidence obtained via constitutional violation should undergo scrutiny. I don't know if there's a case on point (probably), but we didn't go over it so I would just apply this argument to the facts.

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Terry Q:

A Terry stop only gives an automatic right to search the immediate area for weapons. Unless the cop has reasonable suspicion of the car containing a weapon (viewing from outside the car would suffice), Terry isn't going to get him past the threshold.

There also is no indication of PC for any part of the car (or for the car in totality), Maroney isn't providing any assistance as well.

So the officer's ability to search the car on these facts rises and falls on the validity of the consent in the face of opposition. Co-tenants who provide conflicting consent, when both are then-present at the threshold inquiry, cancel out the consent and the officer can't breach the threshold into a house (see Randolph). The same theory applies here to the car, because even though there is a reduced expectation of privacy in vehicles (especially those on the public thoroughfares), an officer still needs "something" (sufficient level of suspicion; consent; etc.) to allow him to constitutionally breach the 4A bubble around that car.

The situation then narrows in on the point of if the driver should be elevated to the same level as a co-tenant. There are competing arguments. Those against equating the drive with the co-tenant include: the driver doesn't have any actual property interest in the car (except for "use," which is not the same as a tenant); the driver has a reduced expectation of privacy relative to a co-tenant relative to the place being searched, and therefore shouldn't be held in as high of a standard.

Conversely, opposing side will argue that the standard of Matlock is if the officer would "reasonably believe" the [driver] to share authority over the common area, and here the driver is driving and drivers who drive have ample authority over the car in which is being driven [drivedrivedrive]. This argument is undercut by the fact that the owner probably has the opportunity to explain the situation (he's the owner; the driver is only driving due to the owner's express permission) -- and though this counter-argument has its own counter, in that a landlord with superior property rights cannot give consent for a tenant (see Chapman) and an innkeeper can't give consent for entry into a guest's room (see Stoner), the driver still is neither retaining any property rights in the car nor is on the level of expecting a high-level privacy such as in a hotel room.

As such, I would conclude that the owner's consent is not cancelled out by the driver's non-consent, because the driver is not one reasonably believed to have sufficient authority over the common area so as to cancel out the then-present owner's consent. But this situation is really one that can be argued either way.

[jkay]

The self-incrimination clause is NOT implicated by the admission into evidence of the physical fruit of a voluntary statement. Miranda is a trial right, invoked when state introduces statements at trial.

VIOLATION OF MIRANDA ALONE
1. Statement = suppressible, but MAY BE USED FOR IMPEACHMENT
2. Fruit of the poisonous tree doctrine not imposed, physical evidence is admissible.

VIOLATION OF VOLUNTARINESS
Statement = suppressible, not usable for any purpose
Fruit/evidence = suppressible

So the answer to your question is probably yes, VOLUNTARY statements obtained in violation of a suspects Miranda rights can be used to obtain PC for a warrant.

[kalvano]

The self-incrimination clause is NOT implicated by the admission into evidence of the physical fruit of a voluntary statement. Miranda is a trial right, invoked when state introduces statements at trial.

VIOLATION OF MIRANDA ALONE
1. Statement = suppressible, but MAY BE USED FOR IMPEACHMENT
2. Fruit of the poisonous tree doctrine not imposed, physical evidence is admissible.

VIOLATION OF VOLUNTARINESS
Statement = suppressible, not usable for any purpose
Fruit/evidence = suppressible

So the answer to your question is probably yes, VOLUNTARY statements obtained in violation of a suspects Miranda rights can be used to obtain PC for a warrant.

Define what you mean by "trial right". Miranda applies to custodial interrogation.

[jkay]

If an individual is in a situation that requires him to be Mirandized, and he isn't, the authorities can still ask him questions and act upon the knowledge gained as long as the information is disclosed VOLUNTARILY. They just can't use those statements to incriminate him at TRIAL.

If there is a violation of the voluntariness requirement, then the fruit of the poisonous tree doctrine can be invoked. But Miranda violations, by themselves, do not poison the fruit.

Thus, if law enforcement officials decline to offer a Miranda warning to an individual in their custody, they may still interrogate that person and act upon the knowledge gained, but may not later use that person's statements to incriminate him or her in a criminal trial.

[kalvano]

I emailed my professor about this and she said Patane applies.

[Green Crayons]

Define what you mean by "trial right". Miranda applies to custodial interrogation.

I don't know what Patane is all about, since we didn't cover that (only did about 1.5 weeks in my class re: Miranda), but to follow up on what jkay said, the Court has held that Miranda must be applied during custodial interrogations, but the 5A is not implicated (and thus Miranda cannot be challenged as having been violated) until such testimony is attempted to be introduced into evidence at trial. See: Chavez v. Martinez (SCOTUS 2003).

[8675309Jenny]

I emailed my professor about this and she said Patane applies.

An unwarned confession is not its own poisonous tree.

[kalvano]

I emailed my professor about this and she said Patane applies.

An unwarned confession is not its own poisonous tree.

I just was curious what reasoning she would use. She said Patane would apply in using the Miranda-defective confession for PC purposes for a warrant.