All right.

Lawyer talk.

Off the record, on the air.

Lots of debate these days.

About what?

The federals.

Who's in charge?

Is it the federal or is it the states?

If the US Constitution says you can't do it, but what can the states allow and not allow, right?

Usually people just pick the one that they like better.

Usually, yeah, maybe.

I am not talking about politics.

We're going to get into the weeds of something that's.

Look, if you're a legal geek like we are, this is good stuff.

This is good stuff.

We had a case.

We had a case.

We being Troy as a law student, and I as an attorney.

They don't teach you this crap in law school, by the way.

Not even close.

We had a case, and it was something like this our client was subjected to.

I'm going to beef up the facts in our favor just to make the point.

A custodial interrogation.

Now, if there's a custodial interrogation, I'm going to put them in quotes.

I'm going to ask Troy to talk about custodial interrogation.

If the police engage or subject somebody to a custodial interrogation, then what has

to happen first has to be read their Miranda rights.

Got to read your Miranda rights.

So you have a right to remain silent.

And you say, can we be used against you in court law?

You have right to have a lawyer.

If you're not parent, we can appoint one for you.

Blah, blah, blah, blah, blah.

And contrary to what everybody thinks, we've talked about this.

Just because the police don't read you Miranda rights doesn't mean that your case gets dismissed.

Has to be a custodial interrogation.

And if they violate that premise and don't read your rights and interrogate you anyway, then what's the remedy?

Is it dismissal?

Nope.

It is just.

We suppress that evidence, it can't be used at trial.

We throw out Troy's confession.

So Troy admitted to be a safe cracker.

Talked about that earlier.

But now they can't use it because the police conducted a custodial interrogation without first reading Troy's Miranda rights.

But something else happened during that custodial interrogation without Miranda, Troy consented to giving his DNA to the police because they found DNA on the safe and they thought, hmm, I wonder if Troy is the guy who did it.

So we're gonna get his DNA and we're gonna get him to consent to that DNA swab.

They're gonna come and we're gonna bring a little kid in, we're gonna rub his little cheek, and we're Gonna get his DNA, and then we're gonna send it off to the lab, and they're gonna test it, and they're gonna compare it to the sweat epithelial DNA that's found on the safe knob.

And if it matches, by golly, it's Troy who committed the crime.

And we got him.

Got him cold.

And Troy's arguing what like, well, hold on.

I should have never been there.

Shouldn't ever been talking to him.

I didn't really consent, you know.

All right, so the question becomes this.

The issue is this.

Troy consents to his DNA sample during the course of.

Of an illegal interrogation that violates Miranda versus Arizona.

He's subject to a custodial interrogation.

No Miranda.

He makes all these other statements like, yes, I cracked the safe.

I did all this.

I did this, and I stole the thing from the ace.

Hard.

I did it all.

We talked about this earlier, about how good you are at cracking safes.

Yeah, I did it all.

But it turns out the state can't use that evidence against me because they violated Miranda.

Now, but we got that pesky DNA evidence that they obtained during the course of that interrogation, and that happens to match what?

That happens to match the evidence.

The DNA we found on the safe.

Now what?

I want the DNA suppressed.

That's what I want.

But wait, it's not a statement, really, is it?

I mean, it's just consent to evidence.

No, it's just physical evidence, I would

think, somewhere along the lines of fruit of the poisonous tree doctrine.

All right, talk to me about fruit of the poisonous tree.

So in a fourth amendment violation, whenever your rights are being taken advantage of and it's proven lawful, then the rights that were taken advantage of afterwards, even though they were lawful, were only from the fruits of the earlier violation.

I love the analogy.

Right, so look, if the apple is tainted, then if the tree is tainted, all the apples, all the fruit on that tree is tainted.

The tree here being choice interrogation.

And what sprung from that?

One of the branches that gave rise to the fruit of this DNA is poison.

Because everything else is poisoned by the fact that they didn't read Miranda.

Yeah, but it's not so simple.

No, it's not so simple.

It's never that simple.

It's never that simple.

So it turns out, at least the prosecutor would argue.

And I'm pulling up the documents now.

It turns out that there's a case called.

I think it's US versus Pantain.

T A N E P A T A N E. Something like that.

I'm guessing I'M pulling it up.

That says, look, that's physical evidence.

Doesn't make any difference.

Physical evidence.

It's not a statement.

Miranda is all about statements, and therefore it doesn't matter.

So it can come in one way or another.

It doesn't make any difference.

Now that doesn't leave you without any argument.

You've still got an argument that we're going to get to in a second.

And so the government's going to say, look, under the Fifth Amendment, upon which Miranda is sort of based, sort of the Sixth or the Fifth, they made it up, by the way.

So it's not really premised on anything.

That's a whole different episode.

It's a whole different episode, but we're stuck with doesn't violate the Fifth Amendment.

It's not a statement.

So no big deal.

Which I.

Yes, I guess, no, I don't like it.

You know, Troy hates it.

So what's he going to do?

He's going to dust off the Ohio Constitution and he's going to say, look, we still have some equivalent of the Fifth Amendment in the Ohio Constitution.

So this is where it gets interesting.

So we have the Fifth Amendment to the United States Constitution.

And most of the time, all these, all the good ones, all the good amendments apply to the states through the 14th amendment.

It makes no sense.

Don't worry about it, just accept it.

We got a fifth amendment.

You look at the 14th amendment and that shoots you back to the states.

It's like a big circle, a little journey that gets you that says the Fifth Amendment applies to the states via the 14th Amendment, and therefore the states have to follow the same federal law as the federal government would do.

And this is a state court problem.

So now we have the Fifth Amendment, but we also have this little parallel thing called the Ohio Constitution.

Most of the time, the Ohio Constitution or the other state constitutions fall in lockstep with the law on the Fed.

So ineffective assistance of counsel.

It's the same.

It's very or almost identical.

Yeah, but here there's a little bit of a difference.

There's a case that the Ohio Supreme Court says, look, you know, we don't agree in State versus Ferris.

And for those scholars out there, that's 109.

Ohio State third, 519.

Or you can look it up at 2006, Ohio 3255.

It looked at the Pantane case and it says to hold that physical evidence seized as a result of unwarned statements, no, Miranda is inadmissible.

We would have to hold that Section 10 or Article 1 of the Ohio Constitution provides greater protection to Troy than the Fifth Amendment does.

We so find here.

So they're saying, look, we get what the Fifth is saying.

We see what the feds are saying.

But look, under Ohio, we think that it does provide choice and protection here because otherwise it creates all this encouragement for the cops to skirt the rules.

They have a good reasoning for it, but it highlights that not all the time do state court constitutions line up with federal court constitutions or the United.

Not federal court, the United States Constitutions.

And you have to look at them individually.

And I think a lot of lawyers drop the ball on this.

And I hate to say that I may.

I don't know, but I now always look, I always look to see what the state law is and whether it's a little bit different.

And here it is.

So physical evidence found as a result of an unwarned no Miranda warning, custodial interrogation can be suppressed under Ohio law, even if possibly not under federal law, under the federal constitution.

But isn't that the Supremacy Clause, where the feds have a right, states don't, or is the state allowed to actually be a little bit more right?

Troy's now going to stand up in law school.

What about the Supremacy Clause?

He asks.

In law school, they would say, well, that's a good question, Troy.

What's the answer?

I would say the feds have it right, the state doesn't.

I mean, isn't the feds the law of the land?

Aren't we supposed to follow their interpretation?

Yeah, it can't go the other way.

The state.

It can go this way, but not the other way.

Let me tell you what I mean by that.

The federal constitution is the law of the land.

That means that the state can't do less than what the federal constitution would prohibit.

Right.

So the state couldn't say that under.

There's no Miranda in Ohio.

We're not going to suppress even without Miranda.

But the state could say, we're going to do more.

We're going to give Troy more rights, not less rights.

And the state can do that.

They can be stricter against their own government, but they can't hold the state of Ohio to a lesser standard than the Fed than the US Constitution would require.

So the Supremacy Clause reigns supreme.

When they were talking about what the rights are, the state can't do less, but the state can do more.

Okay, all right.

Even so, doesn't mean it all is lost.

Troy's given his DNA sample.

He's consented to it.

Even under the United States Constitution, Troy still has one more argument.

He's got the one more sort of Hail Mary pass, and that is that you did not provide consent.

What are the buzzwords?

Only voluntarily and intelligently.

Intelligently, yeah.

Or the police overcame Troy's will through coercive techniques or lies and denies.

Or maybe they held him in the interrogation room when he had to pee for so many hours and all he had to do was consent to get out and go to the bathroom, like that kind of stuff.

It would be an unlawful consent that violated due process.

I think it's California versus Bustamante if I'm not mistaken.

I don't know if it's California, but it's Bustamante for sure.

The consent is invalid.

So even if it's an uncounseled or unmorandized consent, and that wouldn't work under the U.S. constitution, it still may violate the 14th Amendment due process because they used coercive techniques, wouldn't let Troy use the bathroom, wouldn't let him call his girlfriend or his mommy until he consented.

So they're gonna throw the DNA out that way?

Possibly.

And what would I say to the police?

Get a freaking warrant in the first place?

Come on, go get a search warrant.

Do your jobs right the first time, and then it makes it a thousand times easier.

Look, and who am I to give the police advice or prosecuting advice?

But if you just so often, why not just Reed Troy his Miranda rights?

Why not do it?

I've even said you don't have to do, like, the full script.

You can just do, like, something.

Yeah, like, hey, man, welcome down here.

Like, you know, you're talking to us freely.

Came down here voluntarily.

You can leave anytime you want something.

And it's almost like sometimes the police get too cute with what they think they know how to do.

Well, we don't need a warrant for this.

We can just go in because we have exigent circumstances or we have this reason, or we saw this in Plainview or whatever it is.

But if you have enough to get a warrant and it doesn't hurt you to go get one, just do it.

That's my advice then.

Guys like me don't get to come in and rack you over the coals for not doing it.

Anyway, look, you heard it here.

LawyerTalkPodcast.com if you consented to DNA and you didn't do it with Miranda, well, now you know, in Ohio, at least you got an argument.