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Louisiana Supreme Court: When an Identified Attorney Seeks to Assist a Person in Custody and Police Fail to Inform the Person, Inculpatory Statements Must Be Suppressed

by Douglas Ankney

The Supreme Court of Louisiana reaffirmed that the law of Louisiana requires law enforcement to inform a person in custody whenever an identified attorney is seeking an opportunity to assist the person. If the police fail to inform the person in custody of the attorney, any statement obtained and any fruits thereof must be suppressed.

Donovan Alexander gave police consent to search his residence on Vintage Drive in Kenner. Officers seized two pounds of marijuana, a firearm, and Carispodol pills. Alexander was arrested at the residence, and police then traveled to Alexander’s “stash house” on Curran Boulevard in Orleans Parish. A female occupant gave permission to search. Police recovered eight grams of heroin and a loaded firearm from a dresser-drawer.

Alexander was taken to Kenner Police Headquarters where he signed a waiver-of-rights form and told police not to charge the woman at the Curran Boulevard residence because the drugs and firearm were his.

Unknown to Alexander, attorney Dwayne Burrell had arrived at the Vintage Drive residence while the search was underway. Burrell was Alexander’s cousin and had represented him previously. Burrell showed officers at the scene his “bar card,” told the officers he wanted to speak with Alexander, and told the officers that Alexander was not going to make any statements.

Officers told Burrell that Alexander would be taken to Gretna, and no officer told Burrell that Alexander would be taken to Kenner for questioning. Alexander was later charged with drug- and firearms-related charges. He moved to suppress his statement on the ground that the police had failed to inform him that an identified attorney was seeking to assist him.

At a hearing on the motion, DEA Special Agent Joseph Blackledge testified that he had not been at the scene when Alexander was arrested, that he was unaware that any attorney named Burrell was seeking to assist Alexander, and that he was at the Kenner Police Headquarters when Alexander waived his rights and gave his statement.

The district court ruled that, because the State offered no evidence to rebut the allegation that police had failed to inform Alexander that Burrell had expressed a desire to assist Alexander, the statement would be suppressed. The State appealed. Relying primarily on Moran v. Burbine, 475 U.S. 412 (1986), the court of appeal reversed. The Louisiana Supreme Court granted Alexander further review.

The Court observed that “[a]t a hearing on a motion to suppress a statement, the State bears the burden of proving the free and voluntary nature of the confession given while in custody.” State v. Scarborough, 256 So.3d 265 (La. 2018). For an inculpatory statement or confession to be admissible, the State must establish that it was made freely and voluntarily and not the result of fear, duress, intimidation, menace, threats, inducements, or promises. La. R.S. 15:451; La. C. Cr. P. art. 703 (D); State v. Anderson, 996 So.2d 973 (La. 2008). 

In addition, the Fifth Amendment to the U.S. Constitution provides that “[n]o person ... shall be compelled in any criminal case to be a witness against himself....” Because custodial questioning creates “compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely,” law enforcement are required to give suspects in custody warnings that advise them of their right to remain silent, of their right to have an attorney present, of their right to stop answering questions at any time, and that anything they say will be used against them. Miranda v. Arizona, 384 U.S. 436 (1966).

The Burbine decision involved a case similar to Alexander’s situation that also interpreted and applied Miranda. In Burbine, the police failed to inform the defendant that an attorney had called the police and told them he was representing the defendant. The defendant later signed a waiver stating he did not want an attorney, gave statements, and appeared in a lineup. The U.S. Supreme Court ruled that the waiver was valid, and police were under obligation only to give the Miranda warnings, determine the suspect understood them, and to obtain a valid waiver. The police had no duty, however, to inform a suspect that an attorney was ready to represent him.

But the Louisiana Supreme Court further observed that Burbine also instructed that nothing in the opinion “disable[d] the States from adopting different requirements for the conduct of its employees and officials as a matter of state law.” That is, the states are free to provide greater protections under state law than that provided under federal law. 

In keeping with that principle, in State v. Matthews, 408 So. 1278 (La. 1982), the Louisiana Supreme Court determined that refusal by police to inform a defendant that his lawyer wanted to assist him was “unwarranted interference” with an accused’s right to assistance of counsel in violation of Article 1, Section 13 of the Louisiana Constitution. Furthermore, once one officer is made aware that an identified attorney is ready to assist a suspect, it is presumed that all officers possess this knowledge. State v. Weedon, 342 So. 642 (La. 1977). Applying the foregoing law to the facts in this case, the Court concluded that the court of appeal erred in reversing the district court’s grant of the motion to suppress. 

Accordingly, the Court reversed the judgment of the court of appeal and reinstated the judgment of the district court. See: State v. Alexander, 2020 La. LEXIS 224 (2020). 

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State v. Alexander

 

 

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