Invocation, Imputed Knowledge, and a Lineup After Arraignment
At 11:40 p.m. a clerk at an Albuquerque convenience store called 911 during an armed robbery and told the dispatcher, "He just ran out - gray hoodie, silver revolver, headed east on Central." The clerk died of a heart attack four months later. A customer who witnessed the robbery identified Devon from a photo array that same night. Devon was arrested and, at his June 5 booking, received Miranda warnings, said "I'm not talking about this without a lawyer," and stopped talking. On June 5 he was arraigned and counsel was appointed. On June 12, detectives placed Devon in a live lineup without notifying his lawyer, and the customer identified him again. Immediately afterward, a detective who had never spoken with the booking officer said, "Tell me what happened and I'll note your cooperation," and Devon confessed. The state intends to call the customer at trial and to introduce the 911 recording and the confession. Devon moves to suppress all three.
1. Is the 911 recording admissible over a Confrontation Clause objection, given that the clerk is unavailable? Address both the confrontation analysis and the hearsay analysis.
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Admissible, though the confrontation ruling is the contestable part.
The Sixth Amendment bars testimonial statements of an unavailable declarant unless the defendant had a prior opportunity to cross-examine. Under Davis v. Washington and Hammon v. Indiana, the test is the objective primary purpose of the interrogation: statements are nontestimonial when made to enable police to meet an ongoing emergency, and testimonial when their primary purpose is to establish past events potentially relevant to a later prosecution.
A 911 call placed during a robbery, while the armed suspect is still at large and moving through the neighborhood, is the paradigm of a nontestimonial emergency call. The declarant is not acting as a witness; she is asking for help and providing the information officers need to find an armed felon in real time. The reference to the gray hoodie and the direction of flight is operationally useful, not prosecutorial. The fact that the call also describes the crime does not convert it, since almost every emergency call does.
The counterargument is that by the time the clerk said "he just ran out," the immediate threat to her had ended, and the questions began to resemble evidence-gathering. Courts have divided on calls at that boundary. Devon's best strategy is to isolate the later portions of the call and argue that once the dispatcher began asking "what did he look like, what did he take," the primary purpose had shifted to investigation.
Hearsay is easier. The recording qualifies as an excited utterance under Rule 803(2) and as a present sense impression under Rule 803(1). Unavailability is irrelevant because these are not statements against interest.
2. Should the June 12 lineup identification be suppressed, and does the customer's trial testimony survive suppression of the lineup?
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The lineup identification is suppressed; the customer's in-court identification likely survives on an independent-source theory.
Under United States v. Wade and Gilbert v. California, once adversary judicial proceedings have begun, a defendant has a Sixth Amendment right to counsel at a post-charge lineup, and a lineup conducted without counsel or a valid waiver is per se excludable - no showing of suggestiveness is required. Devon was arraigned on June 5, so the right had attached. The June 12 lineup, held without notice to appointed counsel, violates it. The remedy is suppression of the identification made at that lineup and of testimony that the customer picked Devon out of it.
The separate question is whether the customer may still identify Devon in court. Under Wade, an in-court identification is admissible if the prosecution proves by clear and convincing evidence an independent source untainted by the unconstitutional procedure. The customer's photo-array identification occurred the night of the robbery, before any charges, so no right to counsel attached to it (Kirby v. Illinois). If the photo array was not impermissibly suggestive - and a single-night array of similar photographs usually is not - the customer had a firm, independent basis for identifying Devon before the tainted lineup.
Note that this analysis would flip if the photo array itself had been suggestive: then the in-court identification would be excluded as the product of suggestive procedures under the Due Process Clause, independent of the Sixth Amendment question.
3. Should Devon's confession be suppressed? Address whether the interrogation violated Miranda/Edwards, whether the detective's ignorance of the earlier invocation matters, and how the appointment of counsel affects the analysis after Montejo v. Louisiana.
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The confession is suppressed.
Start with Miranda. Devon was in custody, received warnings, and unambiguously invoked his right to counsel. Under Edwards v. Arizona, once an accused invokes counsel, police may not subject him to further interrogation until counsel is made available, unless the accused himself initiates further communication. The detective's statement - "Tell me what happened and I'll note your cooperation" - is express questioning and therefore interrogation under Rhode Island v. Innis, which asks whether a reasonable person in the suspect's position would perceive the words as likely to elicit an incriminating response. The detective's subjective intent to be helpful is irrelevant.
Did the detective's ignorance save the statement? No. Courts treat police officers investigating a case as a single team, and impute the booking officer's knowledge to everyone on the case. Even genuinely independent officers are charged with the knowledge the department holds. The Sixth Amendment's counsel clause, not the detective's memory, is the relevant benchmark: Devon did not initiate.
Montejo v. Louisiana changes one layer but not the result. Montejo overruled Michigan v. Jackson, so the mere appointment of counsel after arraignment no longer bars police-initiated interrogation under the Sixth Amendment; a defendant may waive counsel post-arraignment. But Montejo expressly preserved Edwards. Because Devon had already invoked counsel under Miranda, the Fifth Amendment bar applies independently. The confession is inadmissible, and because the lineup was also unconstitutional, the state is left with the customer's independent in-court identification and the 911 recording.