FROM THE CLASSROOM
Ray Hill, Professor Emeritus, Santa Rosa Junior College

“Its ‘402’ time, officer”. “Who wins, you or defense counsel”?  Note: 402(b) E.C. – A pre-trial court hearing to determine the admissibility of an admission or confession.

    This is the tenth in a series of mini-articles covering basic Miranda and Confession Law. This review is equally applicable to detectives and those generalists who are assigned to investigate their own cases.

“There wouldn’t be any possible way that I could have a – a lawyer present while we do this?” “Yeah, that’s what my dad asked me to ask you guys, um give me a lawyer” (Sessoms v. Runnells (2011) 776 F 3d. 610).

Equivocal or Ambiguous Response  to a Miranda Admonition

  An arrested suspect must make an unequivocal request for silence or counsel to invoke one’s Miranda rights. If a response is ambiguous, an officer is permitted to ask neutral follow-up questions to clarify an arrestee’s intent in speaking.

   Defendant was arrested for a series of sex crimes. When advised of his Miranda rights, he stated “I have spoken to my mother by phone and she stated I might need an attorney". An officer informed him, “It was his decision whether to talk without a lawyer present, not his mothers". The suspect agreed to speak. The suspect never clearly expressed his desire to have an attorney present. The officer was permitted to follow up to determine whether the arrestee wanted to speak (Peo. v. Tyson (1988) 197 Cal App. 3d 1276).

   After a Miranda admonition, a multiple murder suspect asked, “Do I need a lawyer?” A detective replied, “Well, I don’t know, do you need a lawyer?” The suspect stated, “I don’t know”. “Sometimes they say it’s better to have a lawyer”. “For what I’ve done, I don’t know why I need a lawyer”. The detective replied, “And all I’m doing is asking you to talk to me”. “Do you want to do that?” The suspect replied, “Okay” and gave incriminating statements. The suspect was eventually charged with 12 murders of prostitutes with special circumstances. Defendant never made a clear and unequivocal invocation of counsel and the detective properly clarified the suspect’s questions (Peo. v. Duff (2014) 58 Cal 4th 1013).

   Defendant was caught burning his girlfriend’s body inside a trashcan in his Anaheim backyard. He was “Mirandized” and responded, “If you can bring me a lawyer that way I can tell you everything that I know and everything that I need to tell you and someone to represent me”. The officer asked several clarifying questions to determine exactly what the defendant wanted to do. Defendant waived his right to have counsel present. Defendant’s initial response was equivocal and the officer asked appropriate follow-up questions to clarify his intentions (Peo. v. Sauceda-Contreras (2012) 55 Cal. 4th 203).

  Defendant was arrested after two elderly victims were found murdered in their Chico residence. One handicapped victim had been tied to a chair and a large knife driven completely through his chest. When an officer read a Miranda admonition, the defendant replied, "Did you say I could have a lawyer?" The officer replied, "Yes, if you want one". Defendant made no response. Five hours later, the defendant was "re-Mirandized", waived, and gave an incriminating statement. At the arrest scene, the defendant never clearly stated he wanted an attorney present before questioning. Making a comment about a lawyer did not assert his right to counsel (Peo. v. Crittenden (1994) 9 Cal. 4th 83).

  Defendant firebombed a Long Beach residence. He was arrested at the hospital emergency room after his jacket (used to “snuff out” a fire on his crime partner) was found at the crime scene with his identification inside! Defendant was “Mirandized” and asked if he wished to talk. He replied, “Yeah, can I talk to you later”? No questioning initially took place. Thirty minutes later, the investigator asked questions and received incriminating responses. Defendant was not undecided on whether to talk, only when to do so (Peo. v. Bolden (1996) 44 Cal. App. 4th 708).

  After a Miranda admonition the defendant stated, “I just thinkin, maybe I shouldn’t say anything without a lawyer and then I thinkin ahh…”, he did not clearly and unambiguously request an attorney. Follow up clarification was permissible (Peo. v. Bestelmeyer (1985) 166 Cal. App. 3rd 520). 

  The key here is to listen to and record the wording that was spoken. If ambiguous, seek clarification. Here is a “close call” case where further clarification would have been a good course of action:

  A National Park Service Ranger in the Lake Mead National Recreation Area stopped the defendant for suspected DUI. He saw the handle of a pistol equipped with a homemade silencer protruding from a bag in the truck bed. A further search revealed a .40 pistol under the driver's seat. The ranger gave the defendant a Miranda admonition. He replied, “I'm good for tonight”. The ranger understood this to mean defendant was willing to speak. Defendant admitted ownership of both weapons. He was a convicted felon. 9USCA ruled “I'm good for tonight” could mean the defendant is OK with speaking or the opposite interpretation - no thanks. Failure to clarify this ambiguity made the statement inadmissible (U.S. v. Rodriguez (2008) 518 F 3d. 1072).

Equivocal or Ambiguous Response During Questioning After a Miranda Waiver

 "To extend the Edwards rule to require law enforcement officers to cease questioning immediately upon the making of an ambiguous or equivocal reference to an attorney would transform Miranda safeguards into wholly irrational obstacles to legitimate police activity" (Davis v. U.S. (1994) 512 U.S. 452).

 “Officers may, but are not required, to seek clarification of ambiguous responses before continuing interrogation once a Miranda waiver has been obtained “(Peo. v. Sanchez (2019) 7 Cal. 5th 14).

  Defendant was questioned about a murder on a military base. After a Miranda waiver and 1-1/2 hours of interview, he stated, "Maybe I should talk to a lawyer". The investigator stopped questioning and later testified, "We made it clear that we were not here to violate his rights, that if he wants a lawyer, then we will stop any kind of questioning with him, that were not going to pursue the matter unless we have it clarified is he asking for a lawyer or is he making a comment about a lawyer?". To this statement the defendant replied, "No, I'm not asking for a lawyer - No, I don't want a lawyer". He was re-advised of Miranda and questioning continued for another hour. The defendant then stated, "I think I want a lawyer before I say anything else". Questioning ceased. Defendant’s first response was ambiguous. An officer was permitted to clarify "maybe" versus "wanting” counsel. After a Miranda waiver there is no legal requirement for clarifying an ambiguous mention of counsel (though the investigator did so in this case). Only upon Miranda admonition, must officers clarify any ambiguity in order to continue questioning. Post-waiver, it is the officer’s option to clarify (Davis v. U.S. (1994) 512 U.S. 452).

  The California Supreme Court has ruled that mentioning a lawyer upon Miranda admonition is different than mentioning a lawyer after a Miranda waiver. After a Miranda waiver, there is no legal duty rule clarify an ambiguous mention of silence or counsel. Questioning can continue until the suspect clearly requests to remain silent or have counsel (Peo. v. Williams (2010) 49 Cal. 4th 405); (Poe. v. Duff (2014) 58 Cal. 4th 527).

  Although it may be “good police practice for interviewing officers to clarify” a defendant’s ambiguous statement about silence or counsel after a Miranda admonition, there is no legal duty to do so (Sechrest v. Ignacio (2008) 549 F 3rd. 789).

  Please see also Robert Phillip’s “Miranda and Confession Law – The Fifth Amendment”, July 2022, Pages 283-292.

  I trust this case law will assist you in your questioning when this legal issue arises during an interrogation.

Stay Safe!

RH