"FROM THE CLASSROOM"
By 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.

Reinitiating Questioning After a Miranda Counsel Assertion

This is the second 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. So consider the following question:

A suspect is arrested for a residential burglary. He is given a Miranda admonition and states: “I want a lawyer before talking”. No questioning takes place.  The following day, another detective from a neighboring agency, who is investigating a separate robbery case, contacts the suspect in jail. The detective explains that he wants to question the suspect concerning an unrelated case. A Miranda admonition is given and the suspect waives his rights.

Any statement should be?

ADMISSIBLE                       INADMISSIBLE        

This statement would be inadmissible. In our first mini-article we discussed a Miranda assertion of silence and learned that after some procedural steps questioning is permitted on a separate offense. In it’s infinite wisdom, the United States Supreme Court has decided the same rule does not apply when counsel is requested. If upon a Miranda admonition, an arrestee unambiguously asks for counsel, the general rule is there can be no police-initiated, in-custody questioning, even for a separate and unrelated offense (Arizona v. Edwards (1981) 451 US 477; Arizona v. Roberson (1988) 486 US 675). This is true even if the arrestee had the opportunity to consult with counsel (Minnick v. Mississippi (1990) 498 US 146). Example:

Washington authorities arrested the defendant for auto theft. He was advised of his Miranda rights and he asked to consult with a lawyer. Defendant was also a bank robbery suspect. Four hours later, an FBI agent interviewed him. After a Miranda waiver, the defendant confessed to the robbery. Because the defendant had previously asserted his right to counsel and he did not reinitiate the questioning, his robbery statement was suppressed (U.S. v. Lucas (1992) 963 F2nd, 243).

A follow-up investigator’s being unaware of a prior counsel invocation is no defense. You have an obligation to determine whether an arrestee has asserted the Miranda right to silence or counsel before conducting follow-up questioning on another crime. So, if you are considering questioning on another crime, whether the initial Miranda admonition was given by your agency or another agency, first determine “Miranda status”. It becomes important for an initial officer or investigator to record the exact wording referencing silence or counsel in one’s police report. This way the report can be expeditiously checked for “Miranda status” before follow-up questioning.

However, U.S. has carved out a major exception to the Edwards Rule called a “Miranda Break-in-Custody”

A Miranda “Break-in-Custody” occurs after 14-days have passed when the defendant has asserted counsel, still remains in-custody, and waives Miranda as to questioning on a separate offense. Example:

*Defendant was a suspect in the molestation of his 3-year-old son. He was incarcerated in state prison for molesting another boy. Investigators initially attempted to question the defendant on his son’s molestation, but he invoked his right to counsel. Two and a half years later, investigators returned for re-questioning. This time the defendant waived Miranda and gave incriminating statements. Though the defendant had not been released from “physical custody”, he had been released from “Miranda custody”, and the re-questioning was permitted. Defendant had returned to the general prison population where he was accustomed to the surroundings and maintained a “daily routine” (in essence he had returned home to “his own turf”) (Maryland v. Shatzer (2010) 559 US 98).

Note: U.S. admitted the 14-day number was “arbitrary”, but explained that a two-week waiting period was necessary to protect against “gamesmanship” or a pretext release whereby “the police will release a suspect briefly and then promptly bring him back into custody for questioning”. “We think it appropriate to specify a period of time to avoid the consequence that the open-ended Edwards presumption will not reach the correct result most of the time”. “It seems to us that period is 14 days”. “That provides plenty of time for the suspect to get re-acclimated to his normal life, to consult with friends and counsel, and to shake off any residual coercive effects of his prior custody”. “Continuous custody is not eternal” (Shatzer. et seq.).

So if you as an investigator are coming in behind another agency’s arrest where there had been a Miranda counsel assertion, just mark your calendar ahead 14-days and “go”.

One California DCA case has applied the 14-day time period to a “physical break-in-custody” on the same crime. Example:

*A Dos Palos double murder suspect asserted his right to counsel. Because of initial lack of evidence, he was released from custody. Based upon new probable cause, defendant was taken in to custody 3-1/2 hours later, given a new Miranda admonition, waived, and gave incriminating statements. These statements were inadmissible. After a counsel assertion, law enforcement failed to wait the 14-days after a release from “Miranda Custody” for reinitiating questioning (Peo. v. Bridgeford (2015) 241 Cal. App. 4TH 887).

A suspect must assert the right to counsel during a custodial interrogation in order for the Edwards Rule to apply. Requesting counsel during non-custodial questioning such as a detention, general on-scene investigation or a voluntary (Beheler) interview still permits follow-up questioning. Example:

Defendant was a passenger in a car where methamphetamine and cannabis were found. When an officer approached her, she clutched a cell phone and announced she intended to call her lawyer. The officer informed her that she could call a lawyer at the police station, confiscated her cell phone, and placed her in handcuffs. At the station, the defendant waived her Miranda rights and gave incriminating admissions. Defendant’s field announcement about calling her attorney occurred before an arrest was made and in absence of any Miranda warning or police questioning. A person cannot assert Miranda rights in an "anticipatory manner”. She waived her right to counsel shortly thereafter at the police station (Peo. v. Nguyen (2005) 132 Cal. App. 4th 350).

Also consider referencing Robert Phillip’s “Miranda and Confession Law – The Fifth Amendment”, April 2022, Pages 192-193, 197-199, and 216-217.

Stay Safe,

RH