Fifth Amendment Miranda Issues the Thesis

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The fact that Fred was eventually allowed to leave is less important in that determination than Fred's state of mind and reasonable belief about whether or not he was still free to leave once the police informed him that he was actually a suspect in Wilma's murder (Dershowitz, 2002; Zalman, 2008).

Search and Seizure and Unlawful Arrest Issues:

The fact pattern does not make clear whether or not the police actually conducted a search of Fred's home or were merely "bluffing" to induce cooperation from Fred. Assuming that no such unwarranted search was actually being conducted, there was no impermissible search and seizure of Fred's home. Provided Fred still (reasonably) believed that he was free to terminate the interview and leave when he volunteered the confession, that evidence should not be excluded under Miranda (and related) doctrine and principles.

However, the police did seize Fred's vehicle, which was an impermissible violation of Fourth Amendment search and seizure law. At that point, police had no probable cause to believe a crime was being committed that would have brought the search of his vehicle under the motor vehicle exception to unwarranted search and seizure rules (Schmalleger, 2008; Zalman, 2008). Therefore, a search of Fred's home and of his vehicle would have required a search warrant issued upon a showing of probable cause to a judge or magistrate of the court with local jurisdiction (Zalman, 2008). Finally, it is clear that police arrested Fred unlawfully, because they did so without first obtaining an arrest warrant in violation of his Fourth Amendment constitutional rights against arrest without a warrant issued upon probable cause (Dershowitz, 2002).

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Two-Tiered Questioning Issues:

Fred's attorney might try to argue that the police questioning "outside of Miranda" to obtain a confession violated the principle established in 2004 by the Supreme Court in Missouri v. Seibert (124 S. Ct. 2601) specifically to get around the Miranda requirements (Zalman, 2008). The Seibert decision involved the practice that evolved in many police agencies to purposely delay arresting suspects for the specific purpose of interrogating them first outside of Miranda rules and only issuing the warnings required under Miranda afterwards and then re-interviewing the suspect again (Zalman, 2008).

The practice prohibited by Seibert originated after an earlier (1985) Supreme Court decision in Oregon v. Elstad (470 U.S. 298) where the Supreme Court refused to exclude a confession, because police had unintentionally delayed the formal arrest of the suspect and elicited a confession prior to arresting him after it was already clear that the suspect was in police custody and not free to leave. The Seibert decision allowed such confessions only where the time delay is unintentional and not for purposeful or tactical (Schmalleger, 2008; Zalman, 2008). Fred will probably not be successful in this approach because his case is distinguishable from Seibert. Specifically, as long as Fred still reasonably believed that he was free to leave throughout the questioning, the interview cannot be considered "custodial" questioning......

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