I'm pulling out my hair. Here is my scenario:

Suspect arranged with 13 year old female online to meet for sex in a park. (13 yo happened to be an undercover officer). Suspect shows up to park, police are waiting and arrest him. Suspect is read his Miranda warnings in the back of the patrol car. Suspect is then taken to the police department to see if he is willing to give a statement. Instead of re-reading the statutory warnings on the recording, officer hands suspect the blue Miranda card containing the warnings, says "hey, you remember all these things I read you in the back of the patrol car?" Suspect says he does. Officer tells suspect to sign the Miranda card in one spot if he understands them, then to sign in another if he knowingly, intelligently and voluntarily waives them - suspect signs in both places, we have the card. Suspect then confesses to all the online chats and that he was meeting the 13 year old in the park for sex.

My confession does not have the statutory warnings on the recording. Am I dead in the water on a Motion to Supress, or is there anyway I can save this? I've been researching and researching, but can't come up with anything. Help!

Yeah, that doesn't sound good. It seems if it's error for just one of the warnings to be left off a recording, see Woods v. State, 152 S.W.3d 105, 116-18 (Tex. Crim. App. 2004), it's probably bad for all of the warnings to be missing.

Perhaps you could use 38.22 sec 3(e)(2)'s "fully effective equivalent" provision.

In Bible a partial failure to warn in a recorded statement was found to be ok because the defendant had been recently warned:

"That leaves State's Exhibit 4, which, if looked at in isolation, would appear to lack some of the warnings required, not only by Article 38.22, but also by Miranda itself. State's Exhibit 4 does not contain a “used against” warning, does not contain the language making clear that counsel can be consulted before interrogation, and does not contain the admonition that an attorney can be appointed if the accused cannot afford one. But we disagree with the proposition that State's Exhibit 4 should be looked at in isolation."
* * *
"But even if they were not considered part of the same interview, we would find that Trooper Whitmore's conduct under the circumstances was sufficient to constitute the administration of a “fully effective equivalent” to the required warnings and was sufficient to satisfy Miranda."


Bible v. State, 162 S.W.3d 234, 241-42 (Tex.Crim.App. 2005)

Also, while it's not on point for a 38.22 issue, there's good precedent showing that Miranda warnings don't need to be given over and over again over a short period of time. Miller v. State, 196 S.W.3d 256, 266 (Tex.App.–Fort Worth,2006, pet. ref'd).

This message has been edited. Last edited by: D.Merritt,

You say he got Miranda warnings but did that also include the right-to-terminate warning?

I'll be watching the interview again shortly, but I do not believe the right-to-terminate warning was on the recorded interview. That should surely kill it on suppression.

I'm sure I have other issues now because the in-car recording is MIA.

I'll make what arguments I can, but I'm probably going to kiss this one goodbye.

Some places to look:

State v. Subke, 918 S.W.2d 11 (says it is not substantial compliance where extra warning omitted)
Nonn v. State, 69 S.W.3d 590 (omit warning that interview can be terminated at any time not substantial compliance)
Hernandez v. State, 13 S.W.3d 78 (omit warning that interview can be terminated at any time not substantial compliance)
White v. State, 779 S.W.2d 809 (Tex. Crim. App.) (holds that warnings were substantial compliance)

Some more places to look:

Warnings not on tape, reference to off-tape warnings not sufficient. Resendez v. State, 256 S.W.3d 315; Hargrove v. State, 162 S.W.3d 313

Continuation of "same interrogation" did not require new warnings. Franks v. State, 712 S.W.2d 858

Tape ran out, new tape didn't have warnings and waiver. Moon v. State, 1997 WL 403115