A violation of Miranda Warnings does not justify the exclusion of physical evidence resulting therefrom.[In the Matter of H.V.](08-2-11)

On April 11, 2008, the Texas Supreme Court held that physical evidence that does not compel a defendant to testify against himself cannot be a violation of the Fifth Amendment rights that Miranda protects against, and if obtaining the evidence did not violate the Fourth Amendment against unreasonable search and seizure the evidence is admissible.

¶ 08-2-11. In the Matter of H.V., __S.W.3d.__, No. 06-0005, 2008 WL 1147567, (Tex.Sup.Ct., 4/11/08).

Facts: Evidence presented at the suppression hearing here showed that sixteen-year-old H.V. bought a gun on September 7, 2003. Two days later he was seen leaving North Crowley High School with Daniel Oltmanns. The next day, Oltmanns's body was found at a construction site with wounds indicating he had been shot in the head.

The following morning, a police detective met with H.V. at the high school and asked him to accompany her downtown for questioning. He agreed and was taken to a juvenile processing center. After receiving the required warnings from a magistrate, [FN2] H.V. waived his rights and gave a statement admitting he had bought a gun but claiming he had returned it before Oltmanns was shot. The statement was typed up and H.V. signed it, after which he was returned to school.

That afternoon, police officers visited H.V. and his father at their home and asked them to leave the premises pending arrival of a search warrant. They did so, but shortly thereafter H.V. returned, and an off-duty policeman saw him carrying a bloodstained carpet over the back fence of the home. H.V. was arrested on a charge of evidence tampering, and again taken to the juvenile processing facility where he was again given warnings by a magistrate. [FN3]

When asked whether he wanted to waive his rights and speak to police, H.V. said he wanted to speak to his mother, but was told he could not. H.V. then responded that he "wanted his mother to ask for an attorney." When the magistrate responded that only he (not his mother) could ask for an attorney, H.V. replied, "But, I'm only sixteen." The magistrate then reiterated that only he could ask for an attorney, after which H.V. eventually said he would talk to the police. In a second written statement, H.V. claimed Oltmanns accidentally shot himself with H.V.'s gun, after which H.V. placed him in a bathtub where he bled to death. Based on a drawing by H.V., police recovered the gun from a storm sewer close to H.V.'s home.

Finding that H.V. had invoked his right to counsel during custodial interrogation, the trial court suppressed both H.V.'s second written statement and the gun, and the court of appeals affirmed. [FN4] The State brings this appeal from a juvenile court order suppressing evidence in a case involving a violent offender. [FN5] As this question does not turn on an evaluation of demeanor or credibility (as discussed below), we review the question de novo. [FN6]

Held: Affirmed in part, reversed in part

Opinion: Miranda v. Arizona requires that suspects in custody be informed before questioning begins of their right to consult with an attorney. [FN32] If a suspect invokes that right, there can be no further interrogation unless the accused initiates it. [FN33] If Miranda warnings are not given or a request for counsel is ignored, any subsequent statements by the suspect cannot be introduced at trial during the prosecution's case-in-chief. [FN34]

These rights apply to juveniles just as they do to adults. [FN35] Thus, the State concedes in this case that if H.V. properly invoked his right to counsel, the second statement he made thereafter should be suppressed. The only dispute is whether he invoked that right.

In Davis v. United States, the United States Supreme Court established a "bright line" between suspects who might be asking for a lawyer and those who actually do ask for one, holding that only the latter have invoked their right to counsel:

Applying this standard, courts have held that it is not enough for a suspect to say:

Nor is it enough for a suspect to ask to see someone other than a lawyer, such as a probation officer, [FN42] or a parent. [FN43]

At the same time, a suspect does not have to use the precise words "I want a lawyer." [FN44] Courts have held the right to counsel was invoked when a suspect said:

While police often carry printed cards to ensure precise Miranda warnings, [FN50] the public is not required to carry similar cards so they can give similarly precise responses.

The parties here disagree whether Davis requires us to consider H. V.'s circumstances--his youth, Bosnian extraction, and lack of previous experience with police. On this issue, the Court's opinion in Davis gives somewhat mixed signals. On the one hand, the Court said a statement must be "sufficiently clear[ ] that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." [FN51] But the Court also said invocation should not turn on the suspect's personal characteristics:

We recognize that requiring a clear assertion of the right to counsel might disadvantage some suspects who--because of fear, intimidation, lack of linguistic skills, or a variety of other reasons--will not clearly articulate their right to counsel although they actually want to have a lawyer present. [FN52]

There appear to be no cases answering whether a juvenile's age is among the "variety of other reasons" courts cannot consider when deciding whether an accused has requested counsel. Long before Davis, the Supreme Court held that "a juvenile's age, experience, education, background, and intelligence, and ... capacity to understand the warnings" must be considered when deciding whether a juvenile waived Miranda rights. [FN53] As the question here is not whether H.V. waived his right to counsel but whether he invoked it, it is not entirely clear which rule applies.

But we need not decide in this case whether the court of appeals erred in considering H. V.'s age, as we agree with its ultimate conclusion. It is hard to construe H.V.'s statement that he "wanted his mother to ask for an attorney" as anything other than "an expression of a desire for the assistance of an attorney." [FN54] This is not a case in which H.V. simply wanted to see his mother; the only reason he said he wanted her was for the purpose of getting him an attorney. If he wanted private counsel, his request would have been technically correct, as his age at least hindered if it did not prevent him from doing so himself. [FN55]

This case is a close one because, when the magistrate followed up by instructing H.V. that only he could ask for an appointed attorney, H.V. never did. But while ambiguous requests for counsel may be clarified by further questioning, [FN56] unambiguous ones cannot:

As the objective circumstances surrounding H.V.'s statement rendered it an unambiguous request for an attorney, further "clarification" could not change it.

Accordingly, we agree with the courts below that H.V.'s second statement to the police was properly suppressed.

The court of appeals held that suppression of H.V.'s statement also required suppression of the gun as "fruits of the poisonous tree," a legal doctrine first recognized in the context of the Fourth Amendment. [FN58] But both the United States Supreme Court and the Court of Criminal Appeals have rejected this doctrine in the Fifth Amendment context of physical evidence obtained after failing to give Miranda warnings. [FN59]

The court of appeals held otherwise, distinguishing cases in which Miranda rights were not read from cases like this one in which an invocation of those rights was ignored. [FN60] That distinction was expressly rejected by the Court of Criminal Appeals in Baker v. State:

The court of appeals pointed out that Elstad made a distinction between unread rights and ignored rights in a footnote. [FN64] But Elstad was not based on that distinction, but on reasoning that Miranda does not involve a constitutional violation. [FN65] The court of appeals also pointed out that in 2000 the Supreme Court abandoned its characterization of Miranda as a prophylactic rather than a constitutional rule. [FN66] But the Court held four years later that this did not change the rule that physical evidence was admissible even if gained from questioning that violated Miranda. [FN67]

More relevant to the question here is a different principle stated by the Supreme Court in Elstad and since: the Self-Incrimination Clause concerns compelled testimony, not physical evidence. [FN68] The Fifth Amendment provides that "[n]o person ... shall be compelled in any criminal case to be a witness against himself; " [FN69] thus, there can be no Fifth Amendment violation when a person's testimony is excluded. [FN70] Physical evidence that does not compel a defendant to testify against himself cannot be a violation of the Fifth Amendment rights that Miranda protects, which is precisely what the Supreme Court held in 2004. [FN71]

The court of appeals expressed concern that suppressing testimonial statements but not physical evidence might encourage police to reject a request for counsel deliberately in the hope of getting something they could use. [FN72] But evidence obtained through deliberate violations of constitutional rights is usually inadmissible on that basis alone. [FN73]

In this case, H.V.'s counsel does not argue that his disclosure of the gun's location was involuntary or coerced for any reason other than violation of his Miranda request for counsel. The warnings and invocation of counsel here all occurred in court before a magistrate without police involvement, so there could have been no police coercion. [FN74] Because violations of Miranda do not justify exclusion of physical evidence resulting therefrom, we hold the courts below erred in excluding the gun that brought about Daniel Oltmanns's death.

* * *

Conclusion: Accordingly, we affirm the judgments below to the extent they exclude H.V.'s second statement to police, reverse the judgments to the extent they exclude the gun found as a result, and remand this case to the trial court for further proceedings consistent with this opinion.