Chapter 4 - § 4.6 • MOTIONS TO SUPPRESS STATEMENTS

• Jurisdiction: Colorado

§ 4.6 • MOTIONS TO SUPPRESS STATEMENTS

§ 4.6.1—Summary

Motions to suppress statements made by a defendant are generally based on claims that the statement (1) was the product of an illegal arrest, (2) was obtained in violation of Miranda, and/or (3) was involuntary.

If the trial court determines that the arrest was improper, statements that are the product of that illegal arrest, generally, should be suppressed for use by the prosecution in its case-in-chief. However, not all statements that follow an illegal arrest are automatically barred as being the "fruit of the poisonous tree." The nature of the illegality of the arrest is a factor, and a statement may be so attenuated from the illegality that it is admissible despite being, in some sense, the "product" of that illegal arrest. This issue is addressed in § 4.6.2.

If the court determines that the arrest of the defendant was proper, the court must determine whether the statements were the product of police custodial interrogation. If the defendant was not "in custody" for the purposes of the Fifth Amendment or there has been no "interrogation," there is no police action that might otherwise justify suppression. The issue of custody is addressed in § 4.6.3, and the issue of interrogation is addressed in § 4.6.4.

The right to counsel under the Sixth Amendment exists independently of the right to remain silent under the Fifth Amendment. The applicability of the right to counsel is addressed in § 4.6.5.

If the court determines that the statements were the product of custodial interrogation, the court must determine whether the statements were obtained in violation of the defendant's Fifth Amendment protection against self-incrimination, enforced through Miranda v. Arizona. A defendant in custody for purposes of Miranda - a standard different from a Fourth Amendment analysis - must be properly advised of his or her rights and knowingly, voluntarily, and intelligently waive those rights. Issues relating to the advisement are addressed in § 4.6.6, and issues relating to the waiver of Miranda rights are addressed in § 4.6.7.

A finding that a statement was obtained in violation of Miranda requires the suppression of the statement for use by the prosecution in its case-in-chief. Such a statement may still be used to rebut inconsistent testimony of the defendant. A defendant's voluntary custodial statements made without a Miranda warning may only be used to impeach the defendant if he or she testifies at trial and, thus, may not be used either to rebut a defense theory or impeach a witness other than the defendant. People v. Trujillo, 49 P.3d 316 (Colo. 2002). Additionally, not all statements that follow an inadequate advisement or an improper waiver of rights must necessarily be suppressed. A statement can be so attenuated from the Miranda violation that it is admissible despite the fact that it is, in some sense, the product of the Miranda violation. This issue is addressed in § 4.6.8.

Finally, the trial court must always make a determination whether the statements were made "voluntarily" as that term has been defined in case law. A finding that a statement was involuntary requires the suppression of that statement for any purpose whatsoever, including rebuttal of contradictory trial testimony by the defendant. Voluntariness is addressed in § 4.6.9.

Each of these rights is protected by both the federal and Colorado constitutions.

§ 4.6.2—Overcoming an Illegal Arrest or Search

If the trial court determines that the arrest was improper, statements that are the product of that illegal arrest generally should be suppressed for use by the prosecution in its case-in-chief. Brown v. Illinois, 422 U.S. 590 (1975); Dunaway v. New York, 442 U.S. 200 (1979); Taylor v. Alabama, 457 U.S. 687 (1982); Wong Sun v. United States, 371 U.S. 471 (1963). Such a statement, if not found to be involuntary, may still be used to rebut inconsistent testimony of the defendant. Michigan v. Harvey, 494 U.S. 344 (1990); People v. Branch, 805 P.2d 1075 (Colo. 1991). Such a statement may not, however, be used to impeach a witness other than the defendant. People v. Trujillo, 49 P.3d 316 (Colo. 2002).

As long as the police otherwise have probable cause to arrest a defendant, other illegalities surrounding the arrest itself may not require suppression of subsequent, otherwise properly obtained statements. In People v. Davis, 187 P.3d 562 (Colo. 2008) (citing N.Y. v. Harris, 495 U.S. 14 (1990)), the Colorado Supreme Court held that the exclusionary rule should not be applied to suppress statements made outside the home following an illegal warrantless arrest of the suspect within the home where there was probable cause to arrest and the statements were made voluntarily, knowingly, and intelligently after the suspect waived his Miranda rights. Likewise, an illegal search will not require suppression of subsequent statements under the Fourth Amendment "fruit of the poisonous tree" doctrine absent a threshold showing by the defendant of a causal connection between the illegality and the statements. In People v. Archuleta, 2017 COA 9, the Colorado Court of Appeals noted that "temporal proximity alone is not enough to establish the causal connection that a defendant must show in order to warrant application of the exclusionary rule." Id. at ¶ 36 (emphasis in original). As an additional note, suppression of statements is not a proper remedy where the police violate a statutory right rather than a constitutional right. See People v. Clayton, 207 P.3d 831, 835 (Colo. 2009) (police failure to allow communication with family members prior to interrogation as provided in C.R.S. § 16-3-402 would not warrant suppression of statements).

A statement that is the product of an illegal arrest or other improper police action may nonetheless be admissible if the "taint" of the prior illegality is sufficiently "attenuated." People v. Breidenbach, 875 P.2d 879 (Colo. 1994); People v. Jones, 828 P.2d 797 (Colo. 1992); New York v. Harris, 495 U.S. 14 (1990); People v. Trujillo, 773 P.2d 1086 (Colo. 1989). In Harris, 495 U.S. at 17, the U.S. Supreme Court explicitly rejected a per se rule that would bar the introduction of a statement that "somehow came to light through a chain of causation that began with an illegal arrest." Colorado courts have addressed this issue in several settings.

In People v. Jones, 828 P.2d 797 (Colo. 1992), the Colorado Supreme Court addressed whether a confession was adequately attenuated from the taint of an illegal arrest. It was clear that the arrest was illegal and that the defendant's first confession was properly suppressed as the fruit of that illegal arrest. The prosecution claimed that a second confession was sufficiently attenuated, arguing that, although the time span between the arrest and the confession was short, "the police conduct was not egregious and the discovery of the existence of an outstanding warrant constituted a significant intervening factor." Id. at 799. The court rejected this argument and held that the defendant's "second confession stemmed directly from the first confession which was interrupted by the detective asking Jones if he would repeat the statement on videotape." Id. at 800. The court noted that only 15 minutes elapsed between the two confessions, and that the circumstances of the illegal arrest did not change. The defendant was left alone in the same room, and did not talk to an attorney or anyone else. The fact that the police administered Miranda warnings prior to the second confession did not break the causal chain.

The Jones court rejected the argument that the discovery of a warrant for the arrest of the defendant amounted to an intervening event that broke the causal chain between the illegal arrest and the confession.

In People v. Trujillo, 773 P.2d 1086 (Colo. 1989), the Colorado Supreme Court addressed the question whether the taint of a prior illegality might be overcome by reliance on the "independent source" doctrine. The court held that if the prosecution carries the burden of proving that the challenged evidence was obtained from an independent source, the challenged evidence is no longer tainted by the prior illegality and is admissible.

The Trujillo court also considered whether a taint existed by virtue of the fact that the police failed to provide the defendant with an attorney pursuant to his request during an earlier custodial interrogation. The duty of the police to honor such a request before engaging in further interrogation is addressed in more detail in § 4.6.8. In Trujillo, the Colorado Supreme Court held that the release of the defendant between the earlier interrogation and the interrogation at issue removed any taint that was generated by the failure to honor his request for counsel.

§ 4.6.3—When a Defendant Is in "Custody"

It is well settled that the protections of Miranda apply only to custodial interrogations. People v. Sharpless, 807 P.2d 590 (Colo. 1991); People v. Horn, 790 P.2d 816 (Colo. 1990); People v. Milhollin, 751 P.2d 43, 49 (Colo. 1988). Custodial interrogation means that the defendant was in custody at the time the statement was made, and that the defendant's statement was made as a result of interrogation by law enforcement officers. People v. Viduya, 703 P.2d 1281, 1286 (Colo. 1985). Hence, the protections afforded by Miranda "only apply when a suspect is subject to both custody and interrogation." Effland v. People, 240 P.3d 868, 873 (Colo. 2010).

As noted in § 4.2.8, "custody" for the purposes of the Fifth Amendment must be distinguished from a "seizure" under the Fourth Amendment. Regardless of how muddled the issues may become at a suppression hearing, the different constitutional standards must not be conflated by the court. This was emphatically reiterated by the Colorado Supreme Court in the combined case of People v. Hughes and People v. Meza-Reyes, 252 P.3d 1118 (Colo. 2011). "The fundamental question...