Opinion
No. 05-08-01302-CR
Opinion Filed August 7, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 204th Criminal District Court Dallas County, Texas, Trial Court Cause No. F-07-56260-HQ.
Before Justices RICHTER, LANG, and MURPHY.
OPINION
In this capital murder case, the State appeals the trial court's order suppressing appellee's videotaped oral statements to police and his relatives. The State asserts the trial court erred in suppressing the videotaped statements to police because appellee did not invoke his right to silence or his right to counsel. With regard to the videotaped statements appellee made to his relatives, the State contends the statements should not have been suppressed because appellee had no expectation of privacy in the police interview room and the exclusionary rule does not apply. We conclude appellee invoked his right to silence and therefore the trial court did not err in suppressing the videotaped statements to the police. We further conclude that appellee's expectation of privacy while in custody and conversing on a borrowed cell phone in the police interview room is not an expectation of privacy that society recognizes as reasonable. The exclusionary rule does not apply in this context, and the statements were neither involuntary nor coerced. Therefore, the trial court erred in suppressing the videotaped statements appellee made to his relatives. We affirm the trial court's order with regard to the statements made to the police and reverse the order as it pertains to the statements made to family members.
i. background
Appellee, Jujuan Foster, was charged with capital murder as a result of the alleged murder of Sam West. Appellee filed a motion to suppress videotaped oral statements he made to the police and videotaped oral statements he subsequently made to his mother and aunt. The trial court conducted a hearing on the motion to suppress and reviewed the videotape. The videotape depicts appellee in a police interview room after he was arrested. According to the videotape, appellee was nineteen years old at the time. Detective Robert Quirk, a homicide detective with the Dallas Police Department, was the lead investigator in appellee's case, and interviewed appellee about the offense. Appellee mumbled and had his head down in his hands for much of the interview. The beginning of the video shows that appellee was initially given a cigarette and some water and was told that the police were contacting his mother. After a few minutes, Detective Quirk entered the room and introduced himself. During the conversation that ensued, appellee stated, "[m]an, I'll tell you the whole truth. I want to get this off my chest." Detective Quirk read appellee his Miranda rights and asked appellee if he understood them. When appellee responded negatively, Detective Quirk explained each right individually and then asked appellee if he had a better understanding of his rights. Appellee responded "a little bit." Detective Quirk asked appellee if he wanted to waive his rights and talk and appellee responded that he wanted to speak with his "mamma" and "auntie" first. Detective Quirk informed appellee that they were trying to reach his mother and asked, "so can we talk about all this and get this behind us?" Detective Quirk testified that he believed appellee consented to the continuation of the discussion, but there is no audible response on the video. Detective Palmer was monitoring the interview, and summoned Detective Quirk from the room to tell him there was no audible waiver of appellee's rights. Detective Quirk then returned to the room and asked appellee if he was "cool" with talking to him. After a period of silence, appellee mumbled something unintelligible about a lawyer. Detective Quirk asked, "what do you want to do?" Appellee responded, "I want to try to get a lawyer." Detective Quirk asked appellee if he was sure, and told him the interview would be terminated if appellee desired counsel. When Detective Quirk asked appellee again if they were going to talk, appellee stated that he wanted to talk to his "auntie" first. Detective Quirk then queried, "so are we done talking?" Appellee replied, "no, we are going to talk. I just want to talk to my momma and auntie first." Detective Quirk asked, "what about this lawyer business?" and appellee replied "I don't know about that." Detective Quirk then told appellee they were trying to reach his mother by telephone and asked if they could talk until that occurred. At that point, appellee responded "yes." Appellee then discussed and described the details of the crime and eventually admitted that he shot the victim. At one point, Detective Quirk left the interview room to determine whether anyone had been able to reach appellee's mother. Another detective, Detective Ibarra, entered the room and asked appellee if he needed anything. Appellee asked if they had been able to reach his mother, and Detective Ibarra told him they were working on it. Appellee asked to use the cell phone Detective Ibarra was holding. Detective Ibarra agreed, but did not immediately give appellee the phone. Instead, Detective Ibarra left the room, returned a few seconds later to light appellee's cigarette, and left the room again. Detective Quirk returned with a diagram of the murder scene, and asked appellee to demonstrate the details of the crime using the diagram. After appellee complied with his request, Detective Quirk stated "I'm done." He told appellee they would get his mother on the phone so that appellee could talk to her and stated that he would give appellee some private time. Detective Quirk then left the room and did not return. Detective Ibarra returned to the room to tell appellee they kept getting busy signals when attempting to call his mother. Appellee inquired "you gonna give me your phone?" Detective Ibarra handed appellee the phone, and on the first attempt to dial his mother, appellee stated that he got a busy signal. Appellee tried again and reported that the phone was ringing. Detective Ibarra left the room. The videotape continued to record. Appellee initially referred to the person he spoke with as "Kim," but later referred to her as "mamma." Appellee told her he was at the police station and needed a lawyer to get him out. Appellee stated "its too late," and "they already know." During the course of the conversation, appellee said that his codefendant had robbed someone and he (appellee) accidentally shot him. Appellee said he had to get it off his chest. When the conversation concluded, appellee telephoned his aunt and discussed the crime with her. Appellee said he accidentally shot the "dude" when he tried to grab the gun, and needed a lawyer to "get him out of here." He explained that he had to tell the police about shooting the victim because they were trying to say he had been the one who had taken the victim's wallet. Appellee's side of both of these conversations was recorded on the videotape. After reviewing the videotape, the trial judge ruled that it would be suppressed in its entirety, and asked the prosecutor if he had anything further. The prosecutor called Detective Quirk to testify about the videotape. Detective Quirk attempted to clarify parts of the videotape, and stated that he thought he understood appellee to waive his rights when he initially asked him. He admitted, however, that appellee's response to his initial inquiry about waiver is not discernable on the video. With reference to the calls made on the cell phone, Detective Quirk testified that he did not know who appellee was calling, but believed it was his mother or his aunt because those were the people appellee had asked the police to contact. He did not know what appellee would say to these people once he contacted them. When the testimony concluded, the trial judge stated that it did not change or clarify anything. The trial court ordered that the videotape be suppressed. The trial judge also made written findings. The findings pertinent to the statements appellee made to the police include:1. [Appellee] gave a recorded statement to Detective Robert Quirk. . . .
2. The custodial interrogation was conducted in the interview room at the Dallas Police Department.
3. [Appellee] was advised of his Miranda rights. . . .
4. [Appellee] initially indicated that he did not understand his rights, but later indicated that he did.
5. The Defendant indicated his right to remain silent on numerous occasions during the interview. Defendant was reluctant to talk to Detective Quirk.
6. The Defendant then invoked his right to counsel, but Detective Quirk did not immediately terminate the interview.
7. Detective Quirk eventually left the interview room and terminated the interview, but returned again. At that point, he reinitiated the interview with defendant.
8. Because the interview was not terminated upon the Defendant's request for counsel, the Court finds that Defendant's statement was not freely and voluntarily made.With regard to the statements appellee made to his relatives on the cell phone, the trial court found that appellee was provided a telephone after his request for counsel and after Detective Quirk failed to terminate the interview. The trial court found that because appellee was provided with the telephone after the detective's failure to properly terminate the interview, the statements were inadmissible. The court also found that if the interview had terminated when appellee invoked his right to counsel, he would not have remained in the interview room and the calls would not have taken place. Finally, the court found that appellee was not advised that he was being videotaped and was left alone in the interview room while he made the telephone calls, leaving him with the impression that he was being given privacy. The court concluded that the statements appellee made to his relatives should be suppressed because the appellee had an expectation of privacy. This appeal followed.
ii. discussion
Standard of Review
In reviewing a trial court's ruling on a motion to suppress, we apply a bifurcated standard of review. St. George v. State, 237 S.W.3d 720, 725 (Tex.Crim.App. 2007); Ford v. State, 158 S.W.3d 488, 493 (Tex.Crim.App. 2005); Randolph v. State, 152 S.W.3d 764, 769 (Tex. App-Dallas 2004, no pet.). This standard of review gives almost total deference to a trial court's determination of historical facts, especially when the trial court's fact findings are based on an evaluation of credibility and demeanor. See St. George, 237 S.W.3d at 725; Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997); Randolph, 152 S.W.3d at 769. We afford the same deference to mixed questions of law and fact if resolving those questions turns on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89. We apply a de novo review to mixed questions of law and fact not turning on an evaluation of credibility and demeanor. St. George, 237 S.W.3d at 725; Guzman, 955 S.W.2d at 89; see also State v. West, 20 S.W.3d 867, 870-71 (Tex.App.-Dallas 2000, pet. ref'd) (where facts are undisputed, reviewing court applies de novo standard of review to trial court's ruling ). Appellee argues that the trial court's determination turns on questions of credibility because Detective Quirk testified about the videotape. The trial court stated, however, that the testimony did not change anything. We do not agree that the court's determination involved credibility or demeanor because the facts are preserved on the videotape and are completely uncontroverted. Therefore, because the facts are uncontroverted and the propriety of the trial court's suppression of the recorded conversation is a question of law which does not turn on credibility or demeanor, we will review it de novo. See Johnson v. State, 68 S.W.3d 644, 652-53 (Tex.Crim.App. 2002); State v. Scheineman, 77 S.W.3d 810, 812 (Tex.Crim.App. 2002).Did Appellee Invoke His Fifth Amendment Right to Silence?
In its first two issues, the State argues the trial court erred in suppressing appellee's videotaped statement to police because appellee did not invoke his right to silence or his right to counsel. With regard to the right to silence, appellee maintains that he made clear he did not want to talk until he had the opportunity to speak with his mother and aunt. Thus, the threshold question we must resolve is whether appellee unambiguously and unequivocally invoked his Fifth Amendment right to silence. The Fifth Amendment to the United States Constitution provides that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." U.S. Const amend. V. This guarantee was made applicable to the states by the Due Process Clause of the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 8 (1964). Consistent with this Fifth Amendment guarantee, before questioning a person in custody, officials must inform him that he has a right to remain silent and that any statement he makes can be used against him in court. Dickerson v. U.S., 530 U.S. 428, 438-39 (2000); Miranda v. Arizona, 384 U.S. 436, 444 (1966); Ramos v. State, 245 S.W.3d 410, 418 (Tex.Crim.App. 2008). The right to terminate questioning is among the procedural protections that Miranda establishes. Miranda, 384 U.S. at 474. The right, which safeguards the Fifth Amendment right to remain silent, requires the police to immediately cease custodial interrogation when a suspect "indicates in any manner, at any time, prior to or during questioning, that he wishes to remain silent." Ramos, 245 S.W.3d at 418. If a statement is governed by Miranda (i.e. the suspect is in custody), then a failure to cut off questioning after the suspect invokes his right to remain silent violates his rights and renders any subsequently obtained statement inadmissible. Michigan v. Mosley, 423 U.S. 96, 103-04 (1975); Dowthitt v. State, 931 S.W.2d 244, 256 (Tex.Crim.App. 1996). There is no talismanic word or phrase with which to invoke the right to remain silent. Watson v. State, 762 S.W.2d 591, 597 (Tex.Crim.App. 1988); Williams v. State, 257 S.W.3d 426, 432 (Tex.App.-Austin 2008, pet. ref'd). "Any declaration of a desire to terminate the contact or inquiry should suffice." Ramos, 245 S.W.3d at 418. If, however, the suspect's invocation of rights is ambiguous, the officer is not required to cease his questioning of the suspect. See Ramos, 245 S.W.3d at 418. Ambiguity exists when a suspect's statement may be reasonably interpreted more than one way "under the circumstances." Williams, 257 S.W.3d at 433. A law enforcement officer may not continue to question the suspect until the officer succeeds in persuading the suspect to change his mind and talk. See Hearne v. State, 534 S.W.2d 703,707 (Tex.Crim.App. 1976); Dowthitt, 931 S.W.2d at 257. The exercise of the right to remain silent must be "scrupulously honored." Miranda, 384 U.S. at 479. But a suspect's right to remain silent is not violated when an officer attempts to clarify whether the suspect wishes to remain silent. Dowthitt, 931 S.W.2d at 257; Marshall v. State, 210 S.W.3d 618, 628 (Tex.Crim.App. 2008) (federal constitutional law does not prohibit officer from clarifying whether suspect wishes to waive right to remain silent). In determining whether the right to remain silent was invoked, we consider the totality of the circumstances. Watson, 762 S.W.2d at 597. Here, the trial court concluded that appellee expressed his wish to remain silent and was reluctant to talk to Detective Quirk. Having reviewed the videotape, we agree. When Detective Quirk asked appellee if he wanted to waive his rights and talk, appellee stated that he wanted to talk to his "mamma" and "auntie" first. But Detective Quirk cut appellee off while he was making this statement. Detective Quirk assured appellee the calls would be made, but told him they needed to talk about the case first. Detective Quirk then asked appellee "so, can we talk about all this and get this behind us?" There was no audible response to this inquiry. After Detective Palmer interrupted the interrogation to inform Detective Quirk that he did not hear appellee waive his rights, Detective Quirk asked, "you're cool with us talking, aren't you?" Appellee stated "I want to get this over with," to which Detective Quirk replied, "but can we talk? You want to tell me your side of the story, right? When appellee sat with his head in his hands and did not reply, Detective Quirk continued with "I would sure like to hear it." After an exchange about counsel and Detective Quirk's objectives in the investigation, Detective Quirk told appellee he needed to know if they were going to talk. Appellee responded that he wanted to speak with his "auntie" first. Later, when Detective Quirk asked appellee if they were done talking, appellee stated "no, we are going to talk. I just want to talk to my momma and auntie first." We reject the State's argument that appellee did not unambiguously and unequivocally assert his right to remain silent. The totality of the circumstances supports the conclusion that appellee manifested his desire to remain silent on several occasions — each time he indicated he did not want to talk until he had the opportunity to speak with his mother and aunt. After appellee invoked his right to silence, Detective Quirk continued to urge him to speak. Despite the resulting silence, Detective Quirk persisted. By continuing the interrogation in the face of appellee's declaration, the police were doing nothing short of "badgering a defendant into waiving . . . previously asserted Miranda rights." See Davis, 512 U.S. at 458. Once the right was invoked, however, the police were constitutionally obligated to cease their efforts to persuade appellee to talk. See Dowthitt, 931 S.W.2d at 244. Based on our review of the videotape, we conclude that appellee invoked his right to silence and because the police did not honor that right, the ensuing confession was tainted and inadmissible. Therefore, the trial court did not err in suppressing the videotaped statements appellee made to the police. Because we have concluded that appellee's Fifth Amendment right to silence was violated, we need not consider whether the confession was also tainted because appellee invoked his right to counsel. The State's first two issues are overruled.Did Appellee Have a Reasonable Expectation of Privacy?
In its third issue, the State asserts the trial court erred in suppressing the statements appellee made to his relatives while he was using Detective Ibarra's cell phone. Our determination turns on whether there was a reasonable expectation of privacy under the circumstances. The Fourth Amendment serves to safeguard an individual's privacy from unreasonable governmental intrusions. Richardson v. State, 865 S.W.2d 944, 948 (Tex.Crim.App. 1993). A defendant may challenge the admission of evidence obtained by governmental intrusion only if he had a legitimate expectation of privacy in the place invaded. Rakos v. Illinois, 439 U.S. 128, 143 (1978). To determine whether a person had a reasonable expectation of privacy, it must be determined whether the person exhibited a subjective expectation of privacy and whether that subjective expectation is one that society is prepared to recognize as reasonable. Smith v. Maryland, 442 U.S. 735, 740 (1979). Here, the trial court found that appellee was not advised that he was being videotaped the entire time he was in the interview room. The court also found that appellee was left alone in the interview room while he made the telephone calls, leaving him with the impression that he was being given privacy. Therefore, the court concluded that appellee had an expectation of privacy. While we do not disagree that appellee may have had a subjective expectation of privacy, the dispositive issue is whether society recognizes that expectation as reasonable. Scheineman, 77 S.W.3d at 813. Whether a subjective expectation of privacy is one that society recognizes as reasonable is a question of law. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996). In Scheineman, the court of criminal appeals considered a similar situation. Scheineman and his co-defendant were arrested and placed in separate interview rooms. Scheineman, 77 S.W.3d at 810, 811. The co-defendant asked if he could speak alone with Scheineman. The deputy agreed, moved Scheineman into the room occupied by his co-defendant, and left the two alone. Id. The two men then discussed their criminal conduct while, unbeknownst to them, officers monitored and recorded their conversation. Id. Scheineman argued that the deputy's conduct "lulled" him into believing the conversation was private and created an expectation of privacy. Id. The court of criminal appeals rejected Scheineman's argument and stated, "[w]e do not agree . . . that law enforcement engaged in deception by placing appellee in a room at the county law enforcement building, permitting him to confer alone with his co-defendant, then recording their conversation." Id. at 813. The court noted that this was not a situation where the suspect was "threatened, tricked, or cajoled into waiving his Fifth-Amendment self-incrimination privilege, nor did the situation involve custodial interrogation." Id. The court further noted that there had been no oral assurance of privacy. Id. In conclusion, the court stated "[w]e do not believe that society is prepared to recognize a legitimate expectation of privacy between arrestees who are in a county law enforcement building, even when only the arrestees are present and they believe they are unobserved." Id. This case differs from Scheineman in that Detective Quirk told appellee "we will get your mother on the phone and you can talk to her and I'll give you some private time." But we are not prepared to conclude, nor did the trial court find, that appellee was tricked or cajoled into making the statements to his relatives. Neither detective offered appellee the use of the cell phone. Rather, it was appellee who twice requested the use of Detective Ibarra's cell phone. No one assured appellee that his telephone conversations would be private or that they would not be recorded, nor did appellee ask. Detective Quirk did not state what "private time" would entail or where it would occur, and he did not make this statement in connection with appellee's request to use Detective Ibarra's cell phone. Detective Ibarra, the officer who acquiesced to appellee's request to use his cell phone, made no representations at all. In short, there is no evidence that the officers engaged in dishonesty or deliberately misled appellee into believing his telephone calls would not be recorded. Courts employ several factors to determine whether an expectation of privacy is reasonable. These factors include whether the accused: had a property or possessory interest in the place invaded; was legitimately in the place invaded; had complete dominion or control and the right to exclude others; took normal precautions customarily taken by those seeking privacy; put the place to some private use; and had a claim of privacy consistent with historical notions. Calloway v. State, 743 S.W.2d 645, 651 (Tex.Crim.App. 1981); Hollis v. State, 219 S.W.3d 446, 457 (Tex.App.-Austin 2007, no pet.). Application of these factors to the instant case does not support the notion of privacy. Appellee was in custody, so he had no possessory interest, control, or right to exclude others. Although appellee utilized the interview room as though it were private, appellee took no precautions to ensure his privacy. And historical notions of privacy are limited when one is in custody or confined. See Lanza v. New York, 370 U.S. 139, 143 (1962) ("in prison, official surveillance has traditionally been the order of the day."). For example, a claim of privacy in a police interview room is not deemed consistent with historical notions of privacy. Cortez v. State, 240 S.W.3d 372, 382 (Tex.App.-Austin 2007, no pet.); Mosely v. State, 223 S.W.3d 593, 599 (Tex.App.-Amarillo 2007), aff'd, 252 S.W.3d 398 (Tex.Crim.App. 2008); Scheineman, 77 S.W.3d at 813. Similarly, a subjective expectation of privacy that a prisoner may have in his prison cell is not an expectation that society is prepared to recognize as reasonable. Hudson v. Palmer, 468 U.S. 517, 525-26 (1984). As the Supreme Court has observed, "it is accepted by our society that [loss] of freedom of choice and privacy are inherent incidents of confinement." Id. at 528. In addition to Officer Quirk's statement about privacy and the fact that Officer Ibarra left him alone in the interview room and closed the door, appellee argues that the police gave him the impression that his conversations would be private because he was unaware that he was being recorded. Appellee also relies on a portion of the video where Detective Quirk saw appellee staring at a panel or box on the wall and told him it was just part of an alarm system. But the electronic recording of a suspect's statements is authorized by statute, and the statute does not require that the suspect be told that he is being videotaped. See Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon 2005); Moore v. State, 882 S.W.2d 844, 846 n. 1 (Tex.Crim.App. 1994). Although appellee argues that the panel or box on the wall was actually a microphone, there is no evidence in the record to establish this as fact, nor did the trial court make any findings in this regard. In this particular case, the mode of communication is also pertinent to our analysis. Appellee was conversing on a cell phone that he borrowed from Detective Ibarra. There is no expectation of privacy in a cell phone belonging to someone else. See, e.g., Christensen v. County of Boone, 483 F.3d 457, 461 (7th Cir. 2007). While users of traditional hard wired phones generally have a reasonable expectation of privacy in their conversations, Katz v. United States, 389 U.S. 347, 352 (1967), users of cordless phones generally do not because of the ease of intercepting wireless transmissions. See, e.g., Tyler v. Berodt, 877 F.2d 705, 706-07 (8th Cir. 1989); State v. Smith, 438 N.W.2d 571, 577 (Wis. 1989); People v. Fata, 529 N.Y.S.2d 683, 686 (N.Y Co. Ct. 1988); State v. Delaurier, 488 A.2d 688, 694 (R.I. 1985); State v. Howard, 679 P.2d 197, 206 (Kan. 1984); McKamey v. Roach, 55 F.3d 1236, 1240 (6th Cir. 1995); In re Askin, 47 F.3d 100, 104-06 (4th Cir. 1995). In addition, as in Scheineman, the statements appellee made to his relatives did not stem from custodial interrogation. See Scheineman, 77 S.W.3d at 813; see also Banargent v. State, 228 S.W.3d 393, 401 (Tex.App.-Houston [14th Dist.] 2008, pet. ref'd) (telephone conversation that occurred while defendant in custody did not constitute custodial interrogation). "Custodial interrogation" involves "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda, 384 U.S. at 444. Interrogation usually involves situations in which an officer asks questions of a suspect relating to a criminal investigation. Rhode Island v. Innis, 446 U.S. 291, 301 n. 5 (1980). But the term is not solely restricted to questioning. As defined by the Supreme Court, "interrogation" refers "not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are likely to elicit an incriminating response." Id. at 301-02. Because the police are not accountable for the unforseen results of their words or actions, "the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were likely to elicit an incriminating response." Id. at 301-02 (emphasis in original). Furthermore, "interrogation" must "reflect a measure of compulsion above and beyond that inherent in custody itself." The safeguards of Miranda do not exist to protect suspects from the compulsion inherent in custody alone, nor do they protect suspects from their own propensity to speak, absent some police conduct that knowingly tries to take advantage of the propensity. Jones v. State, 795 S.W.2d 171, 176 n. 5 (Tex.Crim.App. 1990). The trial court found that Detective Quirk failed to properly terminate the interview, and further found that if the interview had terminated, appellee would not have remained in the room and the calls would not have taken place. These findings, however, are not supported by the record. All indications were that the interview had concluded. Detective Quirk said "I'm done" and left the room. There was no interrogation, because no questions were posed to appellee after that point, and there is nothing in the record to establish that the police should have known that leaving appellee in the interview room was likely to lead to him gratuitously making an incriminating statement. There is nothing in the record to establish why appellee remained in the room, or that the detectives were not in the process of transferring him elsewhere. In the absence of evidence to support such a conclusion, we are not at liberty to ascribe a nefarious purpose to the officer's conduct. Although the evidence in the record establishes that the detectives were on notice that appellee would likely call his mother or aunt, under the totality of the circumstances, we are not persuaded that the detectives reasonably should have known that appellee would do anything other than request his relatives' assistance with his predicament. Appellee argues the detectives should have known that appellee would discuss the crime with his relatives because he had previously confessed and had nothing to lose. But charging the detectives with knowledge of a likelihood that leaving appellee in the interview room and providing him with a phone was "likely to lead to an incriminating response" is akin to requiring the police to protect appellee from his own propensity to speak-a propensity contrary to his previously expressed reluctance to speak-and this we decline to do. Based on our review of the record and the applicable law, we conclude that appellee's use of a borrowed cell phone while he was in custody and in the police interview room did not create an expectation of privacy that society recognizes as reasonable. Because there was no expectation of privacy and the statements did not stem from custodial interrogation, the trial court erred in suppressing the statements appellee made to his family members. The State's third issue is sustained.Does the Exclusionary Rule Apply to Statements Appellee Made to His Relatives?
In its fourth issue, the State argues the trial court erred in suppressing the statements appellee made to his relatives because the federal exclusionary rule does not apply to these statements. The trial court found that appellee's statements to the police were not freely and voluntarily made because the interview was not properly terminated. With regard to the statements made to his relatives, the trial court found that because appellee was provided with the telephone after the detective's failure to terminate the interview, the statements appellee made to his relatives were inadmissible. The trial court also found that if the interview had terminated, appellee would have been removed from the room and would not have had the opportunity to make the statements to his relatives. Implicit in the court's findings is the conclusion that the statements appellee made to his relatives after he invoked his Fifth Amendment right in the police interview are subject to exclusion as "fruit of the poisonous tree" or were not voluntary. The "fruit of the poisonous tree" doctrine espoused in Wong Sun v. United States, 371 U.S. 471, 488 (1963) is an exclusionary rule that requires suppression of all evidence derived from the exploitation of a Fourth Amendment violation. Id. The exclusion applies not only to direct products of Fourth Amendment violations, but also to the indirect products of such violations. State v. Iduarte, 268 S.W.3d 544, 550 (Tex.Crim.App. 2008). This case, however, involves a violation of appellee's Fifth Amendment right against self-incrimination, at least in the context of the police interview. Unlike the Fourth Amendment exclusionary rule, the warnings required by Miranda are designed to protect against a defendant's compelled testimony in violation of the Fifth Amendment. See Oregon v. Elstad, 470 U.S. 298, 307 (1985); United States v. Patane, 542 U.S. 630, 639 (2004) (plurality opinion) (physical evidence admissible even if gained from questioning that violates Miranda). Failure to administer Miranda warnings creates a presumption of compulsion in the making of a custodial statement, which implicates the Fifth Amendment's self-incrimination clause and requires suppression of the statement. Patane, 542 U.S. at 639; Elstad, 470 U.S. at 307. The Miranda warnings are not themselves rights protected by the federal constitution, but are "merely prophylactic" measures designed to safeguard the underlying right against compelled self-incrimination. Davis v. United States, 512 U.S. 452, 458 (1994); Michigan v. Tucker, 417 U.S. 433, 444 (1974). The Miranda rule "sweeps more broadly than the Fifth Amendment itself" and "may be triggered even in the absence of a Fifth Amendment violation." Elstad, 470 U.S. at 306. The rule often "provides a remedy even to the defendant who has suffered no identifiable constitutional harm." Id. at 307. Thus, a violation of the rule is not itself a substantive illegality but merely affords a legal, albeit irrebutable, presumption that the right against self-incrimination has not been intelligently exercised. Id at 306 n. 1, 310. The Supreme Court has held that the fruit of the poisonous tree doctrine does not apply to mere violations of the prophylactic requirements in Miranda. While the statement taken in violation of Miranda must be suppressed, other evidence subsequently obtained as a result of the statement, i.e. the "fruits" of the statement, need not be suppressed. Tucker, 417 U.S. at 452; Elstad, 407 U.S. at 298. Both Tucker and Elstad involved the failure to give the Miranda warnings rather than the situation where, as here, the warnings given were not scrupulously honored. See Tucker, 417 U.S. at 435; Elstad, 470 U.S. at 300. The Supreme Court has never directly addressed whether the Tucker/Elstad rule applies to those situations where the suspect has been given the prophylactic warnings Miranda requires and the police subsequently fail to honor the warnings. But the Court of Criminal Appeals has rejected such a distinction. See Baker v. State, 956 S.W.2d 19, 22-23 (Tex.Crim.App. 1997). The court held:[t]he principle is the same: mere non-compliance with Miranda does not result in a carryover taint beyond the statement itself . . . We hold that the Tucker/Elstad rule applies to the failure to scrupulously honor the invocation of Miranda rights. In the absence of actual coercion, the fruits of a statement taken in violation of Miranda need not be suppressed under the "fruits" doctrine.Id. (Emphasis added); see also Marsh v. State, 115 S.W.3d 709, 715 (Tex.App.-Austin 2003, pet. ref'd). Therefore, even though appellee's invocation of his right against self-incrimination was not scrupulously honored during his interview with Detective Quirk, we conclude there was no carryover taint that attached to the statements subsequently made to family members. See Baker, 956 S.W.2d at 22-23. Thus, the question becomes whether the statements appellee made to his family members were made voluntarily or resulted from coercion. See Chavez v. Martinez, 538 U.S. 760, 769 (2003) (those subjected to coercive police interrogation have an automatic protection from the use of their involuntary statements); Baker, 956 S.W.2d at 22 (suppression of the fruits of a defendant's statement only required when the statement was obtained through actual coercion). A statement is voluntary if the record reflects "official, coercive conduct of such a nature that any statement obtained thereby was unlikely to have been the product of an essentially free and unconstrained choice by its maker." Alvarado v. State, 912 S.W.2d 199, 211 (Tex.Crim.App. 1995). The voluntariness of a statement is determined by considering the totality of the circumstances under which the statement was obtained. See Creager v. State, 952 S.W.2d 852, 856 (Tex.Crim.App. 1997). The ultimate question is whether the defendant's will was overborne. Id. at 856. As previously discussed, the statements appellee made to his relatives were not made in response to custodial interrogation. Although appellee was in custody, he was not subjected to interrogation when he was left alone in the interview room after the interview concluded. Viewing the conversations appellee had with his relatives as separate and distinct from the police interview, we are not persuaded that the statements did not result from appellee's exercise of his own free and unconstrained choice. Therefore, the trial court erred in suppressing the statements appellee made to his relatives. The State's fourth issue is sustained.