Motion to Suppress Example

The case is based on fictitious information. The case concerns the arrest of a foreign national by the FBI and the defendants subsequent confession. I was assigned as defense counsel for the accused. The writing sample involves an arrest by the FBI regarding a potential bomb threat to the city of Chicago. The defendant matched the profile given in an anonymous tip and was then arrested for a charge unrelated to the purpose of the stop. This brief requests the court to grant a motion to suppress confession based on two points: the agents failure to notify the defendant of his Miranda rights and the belief the acquired confession was a product of coercion that amounts to violation of the defendant's constitutional rights.

INTRODUCTION Defendant Jesus Descala requests the court suppress his confession unlawfully obtained by the FBI. The arresting agents and the FBI failed to adhere to the constitution and acquired a confession without reading Mr. Descala his Miranda rights. Failure to inform Mr. Descala of his Miranda rights was not warranted as he was in custody and the public safety exception could not reasonably apply. Additionally, the confession acquired by the FBI was a product of intimidation and coercion. Suppression is an appropriate remedy when a law enforcement agency fails to alert the suspect of their constitutional rights without justification found in the public safety exception while in custody or when such a confession is a product of psychological intimidation and coercion. FACTS Mr. Descala is a foreign national of Mexico with limited English language skills and is an engineer holding an advanced technical degree while working lawfully in the US on a work Visa. Mr. Descalas wife and children reside in their home country of Mexico while he works in the US. On the day of his arrest, Mr. Descala was traveling to the mother of a family friend to check on her welfare. Stansky Test. 7, 25. It was there he was questioned by the FBI without access to an attorney and compelled to give a confession regarding narcotics in his car. Id. On April 21st, 2013 the FBI was given a handwritten unsolicited tip from an unverified anonymous source that a person matching Mr. Descalas profile, a Mexican national with limited English skills and Mexican licenses plates, would be traveling on the same rode and direction as Mr. Descala with a bomb in their car. Id at 21. Nine days after the tip was provided to the FBI from the unknown individual, Mr. Descala was stopped, searched, and then followed because he was Mexican, had limited English language skills, a car with Mexican license plates, and was traveling in the same

general direction and road the FBI was watching. Id. When Mr. Descala reached his destination, he was then questioned by the FBI in the home of Mrs. Valdez. Id. Before the agents questioned Mr. Descala, the agents returned to their car and contacted their main office. Stansky at 25. The agents were told that the Mexican Consulate had been contacted and Mr. Descalas attorney was on his way to aid him in this process. Id. The FBI superiors then told the agents to gain a confession before Mr. Descalas attorney could advise him of his rights. Id. It was then the agents began to question Mr. Descala using advanced interrogation techniques and psychological manipulation, without Mr. Descalas attorney present, and using Mrs. Valdez as a translator, even though she is not certified or employed as one and is personally involved in the welfare of Mr. Descala. Williamson Test. 8. 36 - 39 Upon being questioned Mr. Descala made it clear he wished to wait to speak to an attorney or his consulate. Id. The agents told Mr. Descala he did not have any constitutional rights whatsoever, that if he did not cooperate he would immediately be arrested, would be deported if did not answer their questions, and in failing to give a confession people would die; all untrue statements to coerce Mr. Descala into giving a confession. Id. As Mr. Descala is neither an attorney nor familiar with American law, he believed the lies the agents told him as he did not pick up a phone and call for aid. Id. Additionally, Mr. Descala took the advice of his non-professional translator, who is not an attorney, and gave the agents a confession regarding the narcotics found in his car. Id. The confession resulted in Mr. Descala being charged with possession of narcotics. Id. ARGUMENT This argument will show that I) Mr. Descala was in custody when interrogated by the FBI thus affording him Miranda rights, II) there was no imminent threats to the agents or the public to justify application of the public safety exception, and III) the confession received from Mr. Descala is a product of coercion and intimidation and thus not a voluntary confession.

I.

Mr. Descalas statements made while in custody of the FBI should be suppressed as the questioning constituted custodial interrogation thus granting rights found in Miranda.

As Mr. Descala was in the custody of the FBI, and the reasonable person in his situation would believe his freedom was being restricted, Mr. Descala should have been afforded his Miranda rights prior to questioning. Under Miranda, statements made while in custody of law enforcement are not admissible at trial if the arresting agency failed to notify the restrained person of their Miranda rights thus failing to safeguard their constitutional rights before custodial interrogation begins. Miranda v. Arizona, 384 U.S. 436, 442.; Missouri v. Seibert, 542 U.S. 600, 608.; J.D.B. v. North Carolina, 131 S. Ct. 2394 (2011). In determining whether a person is under custodial interrogation for the purpose of Miranda, courts examine the totality of the circumstances surrounding the event by evaluating whether the reasonable person would understand they had the freedom to leave the scene, the length and place of the interrogation, the language and manner of the examination, and the purpose for the questioning. United States v. Podhorn, 549 F.3d 552, 556 (7th Cir. 2008).; United States v. Jones, 21 F.3d 165, 170 (7th Cir.1994).; Howes v. Fields, 132 S. Ct. 1181 (2012). The reasonable person standard in this case should be evaluated under the context as to what the reasonable person who is unfamiliar with American law and the English language would believe about the nature of their freedom. Yarborough v. Alvarado, 541 U.S. 652, 666. (The defendants unfamiliarity with the law and legal process due to his culture and maturity should be taken into consideration in determining whether he would reasonably believe they are in custody). Mr. Descala, who does not speak the English language, who does not have a complete grasp of American culture or law, and who comes from a country where law enforcement is granted much more amenity than in the United States believed he did not have the right to leave. Upon questioning Mr. Descala, the FBI agents stated, many times, that Mr. Descala did not have any constitutional rights and would immediately be arrested if he did not comply with the FBIs demands. Williamson Test. at 8, 35 - 37. They even stated he was compelled by the US Supreme Court to answer all of the questions. Id. Although Mr. Descala was not physically

restrained by the FBI, and was not told specifically he could not leave, the threat of immediate arrest and deportation created in Mr. Descala, a person with limited English skills and exposure to American judicial system, a reasonable belief he could not leave until the FBI was done with him. Oregon v. Mathiason, 429 U.S. 492, 495, (1977) (Distinguishable from Mathiason where the court found the suspects questioning by law enforcement was not custodial interrogation as he was allowed to leave, and in fact left the building once, during the interview). Not only was Mr. Descala threatened with deportation if he did not comply, thus insinuating he was not free to leave, the agents questioning Mr. Descala informed him the purpose of the interrogation was to solve a potentially grievous crime. This makes the purpose of the questioning by the FBI criminal in nature. Id. at 495. (court found custodial questioning most likely occurs when questioning is initiated by law enforcement for criminal purpose and freedom is restricted). Additionally, the agents themselves were under the impression they were interrogating Mr. Descala and admitted to employing interrogation techniques and made every effort to draw a confession. Williamson Test. at 8, 35 - 37. In consideration of all the factors found in the Supreme court cases and Podhorn regarding what is custody, Mr. Descala should be found as having been under custodial interrogation as he was given the impression he was not allowed to leave, was being questioned by law enforcement agents, and the alleged severity of the potential crime he was being questioned for made the questioning for a criminal purpose. II. As the threat to the public was not immediate, and cannot objectionably be found as immediate, the public safety exception should not apply.

There was no imminent threats to the agents or the public to justify the public safety exception. When there is a perceived legitimate threat to public safety, that threat to the public may outweigh protections granted under the Fifth Amendment and allows for self-incrimination when a suspect is interrogated while in custody and makes statements regarding the threat. New York v. Quarles, 467 U.S. 649, 657. Regardless of whether the threat is actual or not, the public safety exception

may apply so long as the belief in the threat was objectionable. People v. Sims, 5 Cal. 4th 405, 451, 853 P.2d 992, 1020 (1993) The public safety exception has generally been upheld when there is an immediate necessity of ascertaining the whereabouts of the potential threat to the the public or the law enforcement agent. Quarles at 657. In Mr. Descalas case, however, there was no immediate threat to be stopped. First, it should be noted that the anonymous tip the agents received was viewed as credible in light of the recent Boston bombing. Stansky Test. at 21. However, the tip stated the bombing would not take place until the day after Mr. Descala was arrested. Id. This would imply the FBI would have been afforded a full 24 hours to discover the actual threat related to that tip. Under this sense, the threat was not immediate in application of Quarles as there was no immediate threat to the officers or the public. Id. The FBI could have properly followed the rights granted in the US constitution and still received a confession. There was no known threat of the bomb exploding in the immediate future and cannot be considered as being immediate threat, therefore, the narrow exception of the public safety exception should not apply for this reason. Second, Mr. Descala and his vehicle were in the custody of the officers. As Mr. Descala would not be able to carry out the alleged bomb plan the following day in police custody, and the bomb material was believed to be in his car, Mr. Descala could not have been seen as an immediate threat making the public safety exception applicable at this time for this reason as well. State v. Stephenson, 350 N.J. Super. 517, 525. (Defendant was in police custody and was thus he and his potential weapons were deemed no longer an immediate threat to the public or officers) Finally, the FBI agents had already questioned Mr. Descala an hour before his interrogation when he was driving to his friends mother. Stansky Test. at 21. After stopping him, the agents allowed him to continue driving to his final destination. Were the threat as immediate as the US Government is infering, then the agents should not have allowed him to continue driving and should have apprehended

Mr. Descala at that moment. This signifies that the FBI itself did not objectionably see the threat as immediate, best shown by the fact they allowed Mr. Descala to continue driving. United States v. Duncan, 308 F. App'x 601, 618 (3d Cir. 2009) (An officer spotted a weapon on a defendant and had an objectionable reason to suspect defendant of being a threat, involving immediate arrest and allowing for questioning without Miranda rights being given.) Because the threat was not deemed to be immediate by the FBI and cannot be found as objectionably immediate, the public safety exception should not apply. III. The confession received from Mr. Descala is a product of coercion and intimidation and thus not a voluntary confession.

The FBI obtained their confession by employing psychological intimidation and deceptive interrogation tactics to secure that confession. A confession is deemed involuntary and should be suppressed if the totality of the circumstances demonstrates that the confession was a product of physical abuse, psychological intimidation, or deceptive interrogation tactics calculated to overthrow the defendant's free will making the confession not a product of rational intellect. Blackburn v. State of Alabama, 361 U.S. 199, 205, (1960). United States v. Lawal, 231 F.3d 1045, 1048 (7th Cir. 2000). Mr. Descalas, a foreign national, was denied his 5th amendment rights afforded to all peoples within the United States. U.S. Constitution, 44 Stat. 1855. The court in Blackburn found that lack of access to legal counsel, a weakened mental state, and psychological pressure may make a confession involuntary. Blackburn at 208. And in this case, a lack of sophistication with the English language and legal system should be considered a weakened mental state in application of Blackburn. It should be noted Mr. Descala did not speak the language and wished to receive aid from his consulate so he could be questioned with clarity and have access to his attorney. Williamson Test. 8. 36 - 39. The agents in this case denied Mr. Descala such access to keep him at a legal and language disadvantage. Id. When a foreign national is denied access to his or her consulate and thus not afforded the language skills and legal knowledge such access would grant, the courts must consider this information in the totality of the circumstances and reason the lack of language skills and knowledge of the legal system makes the

confession not a product of rational intellect. United States v. Lawal, 231 F.3d 1045, 1048 (7th Cir. 2000). Although the FBI did in fact notify his consulate, who then sent an attorney to assist Mr. Descala, the FBI agents made it a point to acquire a confession from Mr. Descala before his attorney and consulate could reach him. Williamson Test. 8. 36 - 39. For 30 minutes Mr. Descala was denied access to his attorney, and in fact, was told he did not have a right to speak to his attorney or consulate and was required to give a confession on the spot in attempts of overthrowing his free will. Id. Additionally, Mr. Descala was provided a distraught nonprofessional translator, Mrs. Valdez. Id. When Mrs. Valdez translated for the officers she took the liberty to advise Mr. Descala and give legal advice, stating that he should give everything the agents requested. Id. Mr. Descala, who trusted Mrs. Valdez and most likely assumed she knew more of the American legal system then he did, followed her legal advice even though she is not an attorney. Id. Not only is Mrs. Valdez not an attorney, she is not a professional translator qualified for interpreting police interrogations putting Mr. Descala at a weakened mental state and inability to fully comprehend the questions being asked of him. Additionally, not only did the FBI deny Mr. Descala access to his attorney and consultant in their questioning, but the FBI obtained their confession by employing psychological intimidation and deceptive interrogation tactics to secure that confession. The FBI agents stated, many times, that Mr. Descala did not have any constitutional rights and would immediately be arrested if he did not comply with the FBIs demands. Williamson Test. 8, 35 - 37. They even stated he was compelled by the US Supreme Court to answer all of the questions. Id. The FBI went so far as to even suggest people were going to die if Mr. Descala did not answer their questions and the cause of their deaths would be Mr. Descalas fault. Id. Such comments are deceptive interrogation tactics to secure a confession. United States v. Irons, 646 F. Supp. 2d 927, 972 (E.D. Tenn. 2009) (where threat of failure to answer questions would cause harm to a third person found as coercion).

It is likely that the FBI agents were aware Mr. Descala had a limited understanding of the American legal system and took advantage of that fact by employing such deceptive interrogation techniques. In denial of his consulate, which is given the purpose of creating a contextual bridge for the defendant so he can understand that right, and because he was denied that right and given misleading information, the confession is not a product of rational intelligence. Lawal at 1048. In weighing the totality of the circumstances including the fact Mr. Descala did not have access to an attorney, was not provided a proper interpreter, and the Agents applied advanced interrogation techniques to overthrow his free will, the confession should be deemed not as a product of rational intellect at the time and his confession should not be considered voluntary. CONCLUSION Because Mr. Descala was not afforded his Miranda rights while under custodial interrogation when the public safety exception did not apply and he and he was coerced by the arresting agent into providing a confession through lies and deceit, the Motion to Suppress Confession should be granted. Mr. Descalas 5th Amendment rights were violated by the arresting officers meaning the only appropriate remedy is suppression and the motion to suppress should be granted.