Molly was a suspect in a series of larceny by check crimes. Police did not think of Molly as a suspect in a recent bank robbery when Molly's roommate Jean told police that she had seen Molly write a note that stated,
"Give me all your money or I will definately assualt you in the iminent future with my puriert interest." Jean said that Molly always misspelled the words: definitely, assault, imminent and prurient. When police brought Molly in for questioning, they had her write out the same words as the robbery note. Molly asked for a lawyer, but officers told Molly she wasn't under arrest so there was no need for a lawyer. Molly wrote the words the officers dictated to her and misspelled the words Jean had identified. Molly was arrested for bank robbery, given her Miranda warnings and she, again, asked for a lawyer. The police said they would get one for her, and while she waited in the cell, officers approached Molly and asked her questions about writing bad checks. Molly said, she knew the gig was up, confessed to the check crimes, and said that the loot from the bank robbery could be found in a storage shed she had rented in the next town. Officers recovered $40,000 of stolen money. At trial, Molly moves to suppress her handwriting sample, her confession to check larceny charges, and the stolen money. Will she be successful, why or why not?
What will be an ideal response?
ANSWER: Answers may vary: First, there is no Fifth Amendment privilege to refuse handwriting samples, photographs of one's face, or voice exemplars because, under the law, such physical evidence is not testimonial and only custodial interrogation is a trigger for the giving of Miranda warnings, and while Molly may very well have been in custody, she was not being interrogated. Once Molly was given warnings and asked for an attorney, that right to counsel is only offense-specific for the bank robbery, not for the bad checks. Molly's spontaneous confession to the bank robbery is an exception to Miranda. Her motions should be denied.
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