Reinitiation of Questioning After a Miranda Silence Assertion

3 May 2022
CAB00147

“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.

TITLE: Reinitiation of Questioning After a Miranda Silence Assertion

     Forthcoming will be a classroom review on 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 warning and states, "I don't want to talk about it now". No questioning takes place. Several hours later, another investigator approaches the in-custody suspect about a separate residential burglary. The suspect waives Miranda and agrees to speak on this crime.

     Defense counsel argues “Once and refusal, always a refusal” with a Miranda silence assertion and seeks to suppress the second statement.

     Any statements from this second interrogation should be?

ADMISSIBLE  OR  INADMISSIBLE 

     Statement #2 is admissible. A Miranda silence assertion on Offense #1 does not preclude an attempt to question on a separate, unrelated, and uncharged Offense #2.

   Richard Mosley was arrested for a series of restaurant robberies in Detroit, Michigan. He was advised of his Miranda rights and declined to speak. The investigator ceased questioning and Mosley was placed in a holding cell. Several hours later, a second investigator sought to question Mosley about a murder case. Mosley was given his Miranda rights again, acknowledged those rights, and at first denied any involvement in the shooting. Further questioning yielded incriminating statements that were used against Mosley at his murder trial.

   U.S. ruled the right to remain silent encompassed by the Miranda Rule was not a right to permanently remain silent on other cases. The first investigator “scrupulously honored” Mosley’s assertion of silence on the robbery cases. The was a “cooling off” break (“attenuation period”) between Questioning #1 and Questioning #2. Mosley was re-read his Miranda rights on the murder investigation, understood, did not ask for a lawyer, and he freely responded to the investigator’s questions (Michigan v. Mosley (1975) 423 U.S. 96).

   Several California cases have followed Mosley:

   Santa Ana Police arrested the defendant for auto tampering. He asserted his right to silence. Later, while the defendant was still in-custody, Newport Beach Police sought to question him on a robbery. He waived Miranda and spoke on that case. The second questioning was permissible (Peo. v. Lispier (1992) 4 Cal. App. 4th 1317).

   Buena Park Police arrested the defendant for robbery. He invoke silence. Five days later, Los Angeles Sheriff deputies sought to question him on an Assault with a Deadly Weapon case. He waived Miranda and gave a statement. The second questioning was permissible (Peo. v. DeLeon (1994) 22 Cal. App. 4th 1265).

     Also consider referencing Robert Phillip’s “Miranda and Confession Law – The Fifth Amendment”, April 2022, Pages 193-197. There is at least one California appellate case and several USCA cases upholding (“under the totality of circumstances”) reinitiating questioning on the same crime.

   So when an arrestee “silences up” on Offense #1, questioning on a separate, unrelated, and uncharged Offense #2 is permissible when:

  1. The request to remain silent on Offense #1 is honored.
  2. There are no promises, inducements, threats, or the functional equivalent of interrogation between the first and second questioning..
  3. There is a “cooling off” or “attenuation period” between the first and second questioning (case law examples – 45 minutes, 1 hour, 2 hours. 5 minutes was too soon).
  4. The arrestee knowingly and voluntarily waives Miranda rights on the second questioning.

Note: If you are a second investigator coming in behind another investigator or agency’s interview attempt, be sure to check your suspect’s Miranda status before questioning. If your suspect didn’t want to talk on the previous offense(s), your good to go under the Mosley Rule.  If your suspect “counseled up” on the first questioning attempt, there is a whole different set of rules for reinitiating questioning. More on that in the next “From the Classroom”.

   Thank you for your service and stay safe!

RH