Volume XXX, No. XX
9, January, 2004
Moving to suppress under
Fourth Amendment
Legal riddle time.
The police arrest a suspect, read him his Miranda warnings and obtain
both an oral and a written waiver. They proceed to politely ask one
question: "Did you kill your wife?" The suspect says yes and then gives
a one-hour confession. The police clearly used no coercion and
followed Miranda to the letter.
Question: Is there any way to suppress such a confession?
The answer is yes, and two recent cases -- one from the 7th U.S. Circuit
Court of Appeals and one from the Illinois Appellate Court -- show how.
First, let's review some law.
There are two basic ways for a defendant to have a confession suppressed. The first is to argue that
the police violated the due process clause by obtaining the confession through improper means that
amounted to "breaking the will" of the suspect. This results in what is called an involuntary
confession that is inadmissible for all purposes. One classic example of an involuntary confession is
the police tying a man to a tree and whipping him until he made incriminating statements. Brown v.
Mississippi, 297 U.S. 278 (1936).
The second basic way to win a motion to suppress a confession is to establish that the police
obtained the statements through custodial interrogation that was not preceded by proper Miranda
warnings and waiver. Miranda v. Arizona, 384 U.S. 436 (1966). Any statements obtained as the
result of a Miranda violation cannot be used in the prosecution's case-in-chief, although they can be
use for impeachment. Harris v. New York, 401 U.S. 222 (1971).
But in 1975 the U.S. Supreme Court held that a voluntary confession obtained after proper Miranda
warnings and waiver may nevertheless be suppressed if it is the "fruit" of an illegal arrest. Brown v.
Illinois, 422 U.S. 590 (1975).
The 7th Circuit recently used Brown in U.S. v. Reed, 2003 U.S. App. LEXIS 23130 (Nov. 13).
Reed was the passenger in a pickup truck pulling a horse trailer. An Illinois state trooper stopped
the truck for speeding. During the course of the stop, the police asked for -- and received -permission to search the truck and trailer. The consensual search uncovered two cellophanewrapped bundles containing $ 93,981 in cash. Reed was then transported to state police
headquarters. He arrived there at about 4 p.m., and during the next six hours he made a series of
incriminating statements.
Reed claimed he was arrested without probable cause at 4 p.m. and that his incriminating
statements therefore must be suppressed as "fruits" of this unconstitutional seizure.
He relied on Brown v. Illinois, which held that a confession obtained through custodial
interrogation after an illegal arrest must be suppressed unless the confession is attenuated enough
from the illegal arrest so that the confession is sufficiently an act of free will to purge the taint of the
bad arrest. Brown established a four-part test for evaluating attenuation:
- Whether the statement was voluntary.
- The temporal proximity of the illegal arrest to the statements.
- The presence of any intervening circumstances.
- The purpose and flagrancy of the police misconduct.
The District Court refused to decide whether Reed was ever under arrest or whether the police
possessed probable cause. Instead, the judge chose to deny the motion to suppress solely on the
grounds that even if Reed had been illegally arrested, his incriminating statements were sufficiently
attenuated from the arrest and therefore admissible. He came to this conclusion after applying the
four-part test from Brown v. Illinois.
The 7th Circuit found that the district judge applied an unduly narrow interpretation of the fourth
factor. The 7th Circuit held that the mere fact that the interrogation itself was congenial does not
necessarily mean that the unwarranted detention did not constitute flagrant police misconduct. It
therefore remanded the case for the District Court to reconsider all the issues in the case.
Reed is a fairly straightforward application of the established Brown v. Illinois doctrine. But the 1st
District recently went far beyond this by suppressing a voluntary confession following a proper
Miranda waiver even where the arrest was based on probable cause.
Roy Willis was arrested on suspicion of arson at 4:10 p.m. on July 13, 1999. He immediately was
read his Miranda rights, and he signed a valid waiver. He denied involvement in the crime and was
placed in the lockup.
On July 16 at 5 p.m. -- 73 hours after his arrest -- Willis signed another Miranda waiver and gave a
full confession.
On July 17 at 7:30 a.m. Willis was taken before a judge for a bond hearing. This occurred a little
more than 87 hours after his arrest on July 13.
Willis contended that his confession should be suppressed.
The 1st District began by eliminating several possible issues. It held that the arrest on July 13 was
supported by probable cause and therefore was legal. It held that the confession was preceded by
proper Miranda warnings and that Willis made a valid waiver of these rights. It also found no
evidence that the confession was obtained through any coercive police tactics that would make the
confession "involuntary."
So what could be wrong with the confession?
The problem is that Willis was arrested without a warrant and the confession was obtained 73
hours after his arrest but before Willis was taken before a judge.
A legal, warrantless arrest is like a quart of milk -- it can turn sour. Recall that if the police obtain an
arrest warrant, this means they must obtain judicial approval before the arrest. But most arrests
are made quite legally without a warrant. See U.S. v. Watson, 423 U.S. 411 (1976); Payton v. New
York, 445 U.S. 573 (1980). With a warrantless arrest, however, there must be a way to get judicial
approval afterward.
The Supreme Court established such a mechanism in Gerstein v. Pugh, 420 U.S. 103 (1975). There
the court held that anyone arrested without a warrant must be taken "promptly" before a judge for
an after-the-fact probable cause determination.
How soon is "promptly"? The court later held that 48 hours was the presumptive outer limit within
which the arrestee must be taken before a judge. County of Reverside v. McLaughlin, 500 U.S. 44
(1991). Therefore the Fourth Amendment is violated when there is undue delay in bringing
someone arrested without a warrant before a judge for a probable cause hearing.
The Willis court found that the state failed to rebut the presumption that the defendant's Fourth
Amendment rights were violated when 48 hours had elapsed and Willis had still not been brought
before a judge.
The issue then became the proper remedy. Should the confession be suppressed because it was
obtained during a period when the defendant was being held in violation of his Fourth Amendment
rights?
The court considered a number of cases from various jurisdictions that refused to suppress
confessions obtained during Gerstein-McLaughlin violations unless they were involuntary. But the
Willis court rejected these cases, holding that they did not adequately recognize the specific Fourth
Amendment interests at stake. The court held that use of the exclusionary rule would be proper in
this case because "Suppression of the confession would discourage police officers from parking an
arrestee in a jail cell for more than 48 hours without good reason." At *32. The court went on to find
that the taint in this case was not sufficiently attenuated and therefore held that the confession
should have been suppressed.
Both Reed and Willis remind us that in considering the admissibility of a confession, you must go
beyond both involuntariness and Miranda issues. The Fourth Amendment can offer a route to
suppression that is often overlooked.