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35. TWO-STAGE INTERROGATION See subheading STATEMENTS BY DEFENDANT – VOLUNTARINESS – STATEMENT GIVEN PRIOR TO MIRANDA WARNING/ “TWO- STAGE”, below 36. VIENNA CONVENTION

Anaya-Plasencia v. State, 283 Ga.App. 728, 642 S.E.2d 401 (February 23, 2007). No abuse of discretion where trial court determined that custodial statement was voluntary: “‘[W]hether a waiver of rights and a subsequent statement have been voluntary and knowing depends on the totality of the circumstances.’ Reinhardt v. State, 263 Ga. 113, 115(3)(b) (428 S.E.2d 333) (1993). The record reveals that Anaya-Plasencia was 17 years of age at the time of the interview. Immediately prior to the interview, Anaya-Plasencia was given an opportunity to go to the restroom and was provided drinking water. The interview was conducted in Spanish by a detective whose native language was Spanish. Anaya- Plasencia was advised by the detective that he was under arrest for events surrounding the death of the victim and was advised verbally and in writing of his Miranda rights. The detective, while unsure of Anaya-Plasencia’s educational level, determined that he could read by having him read out loud a Spanish waiver of rights form. Anaya-Plasencia signed the waiver and agreed to speak with the detective. At the Jackson-Denno hearing, the detective testified that Anaya-Plasencia appeared to understand his rights, that he never asked for counsel and that no promises or threats were made to induce his statement.” Five hour delay between arrest and interview did not require finding of involuntariness; evidence showed that defendant slept in the interim, and was alert during interview. Fact that defendant had been drinking prior to arrest did not require finding of involuntariness, especially in light of five hour delay between arrest and interview. Fact that defendant was denied consular notice under Vienna Convention was “arguably relevant,” and may have constituted error, but harmless in light of overwhelming evidence of guilt. Admissibility of Vienna Convention violation not decided here, but would appear to be admissible at trial given “totality of circumstances” test and the language of Sanchez-Llamas v. Oregon (June 28, 2006), below : “‘[a] defendant can raise an Article 36 claim as part of a broader challenge to the voluntariness of his statements to police.’” Sanchez-Llamas v. Oregon, 548 U.S. 331, 126 S.Ct. 2669, 165 L.Ed.2d 557 (June 28, 2006). Suppression of defendant’s custodial statements is not an appropriate remedy for violation of consular notification and communication rights under Article 36 of Vienna Convention on Consular Relations. Assumes, without deciding, that the Convention provides rights enforceable by the individual, as opposed to the signatory state, but notes that no exclusionary remedy is specified in the Convention or recognized by other countries. “Under our domestic law, the exclusionary rule is not a remedy we apply lightly. ‘[O]ur cases have repeatedly emphasized that the rule’s “costly toll” upon truth-seeking and law enforcement objectives presents a high obstacle for those urging application of the rule.’ Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357, 364-365, 118 S.Ct. 2014, 141 L.Ed.2d 344 (1998). Because the rule’s social costs are considerable, suppression is warranted only where the rule’s ‘“remedial objectives are thought most efficaciously served.”’ United States v. Leon, 468 U.S. 897, 908, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (quoting United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974)).” Suppression is generally invoked to protect Fourth or Fifth Amendment rights or statutory violations where “the excluded evidence arose directly out of statutory violations that implicated important Fourth and Fifth Amendment interests.” “ The violation of the right to consular notification, in contrast, is at best remotely connected to the gathering of evidence. Article 36 has nothing whatsoever to do with searches or interrogations. Indeed, Article 36 does not guarantee defendants any assistance at all. The provision secures only a right of foreign nationals to have their consulate informed of their arrest or detention – not to have their consulate intervene, or to have law enforcement authorities cease their investigation pending any such notice or intervention. In most circumstances, there is likely to be little connection between an Article 36 violation and evidence or statements obtained by police. Moreover, the reasons we often require suppression for Fourth and Fifth Amendment violations are entirely absent from the consular notification context. We require exclusion of coerced confessions both because we disapprove of such coercion and because such confessions tend to be unreliable. Watkins v. Sowders, 449 U.S. 341, 347, 101 S.Ct. 654, 66 L.Ed.2d 549 (1981). We exclude the fruits of unreasonable searches on the theory that without a strong deterrent, the constraints of the Fourth Amendment might be too easily disregarded by law enforcement. Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). The situation here is quite different. The failure to inform a defendant of his Article 36 rights is unlikely, with any frequency, to produce unreliable confessions. And unlike the search-and-seizure context – where the need to obtain valuable evidence may tempt authorities to transgress Fourth Amendment limitations – police win little, if any, practical advantage from violating Article 36. Suppression would be a vastly disproportionate remedy for an Article 36 violation.” “ Finally, suppression is not the only means of vindicating Vienna Convention rights. A defendant can raise an Article 36 claim as part of a broader challenge to the voluntariness of his statements to police. If he raises an Article 36 violation at trial, a court can make appropriate accommodations to ensure that the defendant secures, to the extent possible, the benefits of consular