TO THE ABOVE-ENTITLED COURT, AND TO THE DISTRICT ATTORNEY OF THE
COUNTY OF _ _ _ _ _ _:
PLEASE TAKE NOTICE that _ _[on particular date if motion is to be heard before
trial/whenever the matter is assigned for trial]_ _, defendant, _ _[name]_ _, will make a
motion that the Court order the suppression as evidence of defendant’s statement
_ _[specify statement to be suppressed, e.g., made to the police on November 30,
2004]_ _.
This motion will be made on the ground(s) that the statement was taken in violation of
defendant’s constitutional right _ _[specify right, e.g., to counsel, to remain silent, and to
due process under the Fifth, Sixth, and Fourteenth Amendments to the United States
Constitution/to privileged communications under one of the statutory privileges]_ _.
This motion will be based on this notice, the attached supporting memorandum,
_ _[the attached exhibits,]_ _ all papers filed and records in this action, and on such oral
and documentary evidence and argument as may be presented at the hearing on this
motion.
The witnesses needed for this hearing will be: _ _[give name(s) of law enforcement
witness(es)]_ _. The defense will rely on the prosecution to arrange for the presence of
these witnesses unless otherwise advised by the prosecutor.
Date: _ _ _ _ _ _
Respectfully submitted,
__[Signature of attorney]__ _ _[Typed
name]_ _ _ _[Title if in public defender
office]_ _ Attorney for _ _[name of
defendant]_ _
SUPPORTING MEMORANDUM
When the existence of a preliminary fact concerning the admissibility of a statement
of the defendant is disputed, the trial court shall hear and determine the question out of
the presence and hearing of the jury on the request of any party. (Evidence Code
section 402.) The preliminary fact to be determined in this case is _ _[state what it is,
e.g., that the Miranda warnings were required but were not given]_ _.
THE DEFENDANT’S STATEMENT MUST BE EXCLUDED BECAUSE
_ _[HE/SHE]_ _ WAS IN CUSTODY, QUESTIONED BY THE POLICE, AND NOT
TOLD OF _ _[HIS/HER]_ _ MIRANDA RIGHTS
[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming
from custodial interrogation of the defendant unless it demonstrates the use of procedural
safeguards effective to secure the privilege against self-incrimination.… Prior to any
questioning, the person must be warned that he has a right to remain silent, that any statement
he does make may be used as evidence against him, and that he has a right to the presence
of an attorney, either retained or appointed. (Miranda v Arizona (1966) 384 US 436, 444, 16 L
Ed 2d 694, 706, 86 S Ct 1602.)
In this case, _ _[describe the facts concerning the statement, tell why Miranda was
required to be given before the defendant was questioned by the police, and attach
exhibits or declarations that support your factual assertions]_ _. Defendant’s statement
to the police on _ _[date]_ _, therefore, must be suppressed.
POLICE SHOULD HAVE STOPPED INTERROGATING DEFENDANT WHEN
_ _[HE/SHE]_ _ ASSERTED _ _[HIS/HER]_ _ RIGHT TO COUNSEL; DEFENDANT’S
STATEMENT WAS THEREFORE OBTAINED IN VIOLATION OF MIRANDA
Once a person in custody indicates to the police… in any manner and at any stage of the
process that he wishes to consult with an attorney before speaking there can be no
questioning. Likewise, if the individual is alone and indicates in any manner that he does not
wish to be interrogated, the police may not question him. The mere fact that he may have
answered some questions or volunteered some statements on his own does not deprive him of
the right to refrain from answering any further inquiries until he has consulted with an attorney
and thereafter consents to be questioned.” (Miranda v Arizona (1966) 384 US 436, 444, 16 L
Ed 2d 694, 706, 86 S Ct 1602.)
_ _[Describe what constituted the defendant’s invocation of Miranda and integrate
discussion of cases with similar fact patterns. Refer to declarations or exhibits attached
to the motion that support your factual assertions.]_ _
DEFENDANT INVOKED _ _[HIS/HER]_ _ RIGHT TO COUNSEL AND DID NOT
THEREAFTER VOLUNTARILY INITIATE CONVERSATION WITH LAW
ENFORCEMENT; DEFENDANT’S STATEMENT WAS THEREFORE OBTAINED IN
VIOLATION OF MIRANDA
[W]e now hold that when an accused has invoked his right to have counsel present during
custodial interrogation, a valid waiver of that right cannot be established by showing only that
he responded to further police-initiated custodial interrogation even if he has been advised of
his rights. We further hold that an accused…, having expressed his desire to deal with the
police only through counsel, is not subject to further interrogation until counsel has been made
available to him, unless the accused himself initiates further communication, exchanges or
conversations with the police. (Edwards v Arizona (1981) 451 US 477, 484, 68 L Ed 2d 378,
386, 101 S Ct 1880.)
_ _[Describe how defendant invoked the right to counsel and why his or her later
statements were not volunteered, integrating discussion of cases with similar fact
patterns. Refer to exhibits or declarations attached to the motion that support your
factual assertions.]_ _
DEFENDANT DID NOT VOLUNTARILY, KNOWINGLY, AND INTELLIGENTLY
WAIVE _ _[HIS/HER]_ _ MIRANDA RIGHTS
First, the relinquishment of the [defendant’s Fifth Amendment] right must have been
voluntary in the sense that it was the product of a free and deliberate choice rather than
intimidation, coercion, or deception. Second, the waiver must have been made with a full
awareness of both the nature of the right being abandoned and the consequences of the
decision to abandon it. Only if the “totality of the circumstances surrounding the interrogation”
reveals both an uncoerced choice and the requisite level of comprehension may a court
properly conclude that the Miranda rights have been waived. (Moran v Burbine (1986) 475 US
412, 421, 89 L Ed 2d 410, 421, 106 S Ct 1135.)
[T]he constitutional inquiry is not whether the conduct of state officials in obtaining the
confession was shocking, but whether the confession was “free and voluntary: that is, [it] must
not be extracted by any sort of threats or violence, nor obtained by any exertion of any
improper influence.” (Malloy v Hogan (1964) 378 US 1, 17, 12 L Ed 2d 653, 659, 84 S Ct
1489.)
_ _[Describe facts that show defendant cannot be considered to have waived his or
her Miranda rights, integrating discussion of cases with similar fact patterns. Refer to
exhibits or declarations attached to the e motion that support your factual
assertions.]_ _
DEFENDANT’S STATEMENT MUST BE SUPPRESSED BECAUSE IT WAS
DELIBERATELY ELICITED AFTER THE RIGHT TO COUNSEL HAD ATTACHED, IN
VIOLATION OF MASSIAH
After the right to counsel has attached, whether the defendant is in custody or not,
statements deliberately elicited by government agents without the protection afforded by
the presence of counsel are inadmissible. (Patterson v Illinois (1988) 487 US 285, 101 L
Ed 2d 261, 108 S Ct 2389; Massiah v U.S. (1964) 377 US 201, 12 L Ed 2d 246, 84 S Ct
1199.) _ _[Describe facts concerning when and why right to counsel attached,
integrating discussion of cases with similar fact patterns. Refer to exhibits or
declarations attached to the motion that support your factual assertions.]_ _
CONCLUSION
Defendant requests leave to file a supplemental supporting memorandum after the
hearing on the motion, because evidence may be adduced at the hearing that will
require further briefing by the parties.
Defendant moves to suppress _ _[his/her]_ _ statement, made on _ _[date]_ _ for the
reasons given above.
Date: _ _ _ _ _ _
Respectfully submitted,
__[Signature of attorney]__ _ _[Typed
name]_ _ _ _[Title if in public defender
office]_ _ Attorney for _ _[name of
defendant]_ _