• Use of a jailhouse informant to question an in-custody suspect 
• Legal effect of a prior invocation of one’s right to the assistance of counsel 
• Miranda and an invocation to one’s right to the assistance of counsel 
• Habeas corpus proceedings 

It is lawful to use a jailhouse police informant to question an in-custody suspect despite the suspect’s earlier invocation of his right to the assistance of counsel, at least in a habeas corpus review, as there is no contrary ruling by the U.S. Supreme Court.

Marrisha Robinson and her infant daughter were sitting in their Mitsubishi in a Los Angeles strip mall parking lot on February 12, 2014, waiting while her fiancé, Adrian Dawson, was shopping in one of the stores. The defendant, Christopher Grimes, double-parked his Mercedes behind the Mitsubishi, apparently leaving it out of gear and without setting the emergency brake. The Mercedes rolled into the Mitsubishi’s rear bumper and did some minor damage. Grimes told Robinson not to worry; that he would “take care of it.” As he was talking to Robinson, Dawson came running out of the store, “sucker punch(ing)” Grimes in the face two or three times while yelling “My baby’s in the car!” Telling Dawson that he did not want to fight, Grimes left the scene in his Mercedes. Less than two minutes later, as Robinson and Dawson were driving away, they noticed Grimes’ Mercedes behind them. Thinking that Grimes was seeking to recontact them so they could exchange insurance information, Dawson slowed down. The Mercedes, however, suddenly pulled alongside them and the driver fired four gunshots into the Mitsubishi. Dawson, in the Mitsubishi’s front passenger seat, was struck by one or more of the shots and died shortly thereafter. Grimes, as the obvious suspect, was arrested two days later. Robinson identified Grimes in a photographic lineup as the man with whom they had had the parking lot confrontation, but she could not attest to whether he was the one who later shot Dawson.  

Evidence collected during the execution of a search warrant on Grimes’ Mercedes and home included 9mm ammunition and bullet casings. Dawson died from shots fired from a 9mm firearm. Text messages on Grimes’ cellphone also indicated he was the shooter. The detectives, however, felt they needed more evidence to prove their case beyond a reasonable doubt.  

Immediately upon his arrest, before any interrogation had begun, Grimes asked to have his lawyer present. Later, after detectives read defendant his Miranda rights, he unequivocally invoked his right to counsel a second time. Rather than immediately terminating the questioning, however, the detectives continued to talk to him, telling him that although he did not have to say anything, they wanted him to know that they were conducting a “very serious investigation” in which he had been implicated. He was further told that the investigation was about a murder and that he was going to be arrested for the crime.  

When he asked, “Why would I be arrested for murder?” one of the detectives asked him if he wanted to wait for an attorney, or to talk with them at that time. Choosing to talk, Grimes admitted that he had been in an altercation in the strip mall parking lot, but denied being the shooter. Grimes was subsequently booked into jail. Still not satisfied that they had enough evidence to prove that he was the shooter, the detectives put an undercover informant posing as a fellow inmate into Grimes’ jail cell. The informant pumped Grimes for information about the shooting. Although Grimes continued to deny that he had shot Dawson, he did make incriminating statements about facts that only the shooter would have known: which window through which the shots were fired, and that the shooting took place two minutes after the strip mall incident. 

Grimes was charged with murder in state court and the trial court allowed into evidence all of the statements made to the detectives and to the jailhouse informant, despite his prior invocation of his right to an attorney. Grimes was convicted of second-degree murder and sentenced to 40 years to life.  

The California Second District Court of Appeals (Div. 7) affirmed the conviction in an unpublished decision (see People v. Grimes (2020) Cal. App. Unpub. LEXIS 1135.). In its affirmation, the appellate court ruled that while his statements to the detectives should have been suppressed because they came after he invoked his right to the assistance of counsel, admitting them into evidence was harmless error given other evidence of guilt.  

The appellate court also ruled, however, that the statements Grimes made to the jailhouse informant were properly admitted into evidence. The appellate court ruled that Grimes’ jailhouse statements were admissible because law enforcement is not required to give?Miranda?warnings to a suspect before placing them in a jail cell with an undercover informant, citing as its authority the U.S. Supreme Court decision in Illinois v. Perkins (1990) 496 U.S. 292.   

Grimes then filed a federal 28 U.S.C. § 2254 habeas corpus petition, again arguing that subjecting him to the questioning by a jailhouse informant after he had invoked his right to counsel violated the U.S. Supreme Court’s prohibition on post-invocation questioning, as ruled in Edwards v. Arizona?(1981) 451 U.S. 477. The federal district court denied his petition. The defendant appealed.  

The Ninth Circuit Court of Appeals affirmed. In Edwards v. Arizona, supra, the U.S. Supreme Court specifically held that once an in-custody defendant invokes his right to counsel, as opposed to his right to silence, under the Supreme Court’s Miranda decision (Miranda v. Arizona (1966) 384 U.S. 436), law enforcement officers must immediately cease questioning.  

In such a circumstance, the suspect may not be subjected to any “further questioning by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” (Edwards v. Arizona, supra, at pp. 484-485.)  

The detectives in this case purposely violated this rule by continuing to talk to the defendant about the case after he invoked his right to the assistance of counsel. The detectives, in effect, encouraged him to change his mind, a clear violation of the so-called “Edwards rule.” It could be argued that by placing an undercover jailhouse informant in the cell with him to purposely continue the conversation about the case also violated this rule.  

Even though the U.S. Supreme Court has not considered the issue, lower courts have consistently found an exception to the Edwards rule in the situation as occurred in this case: statements made to an undercover jailhouse police agent. The California appellate court’s decision in this case followed this same line of thinking.  

However, it must also be noted that the issue in a subsequent habeas corpus proceeding, such as in this case, is whether the state court has reached a conclusion that is “contrary to clearly established federal law,” having “arrive(d) at a conclusion opposite to that reached by [the Supreme] Court on a question of law,” or, in the alternative, “if the state court decide(d) a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” (Ochoa v. Davis (9th Cir. 2022) 50 F.4th 865, 876; citing?Williams v. Taylor (2000) 529 U.S. 362, 413.)  

It must be noted that on appeal in a habeas corpus proceeding, the issue is not whether the state court’s determination was right or wrong, but rather whether it was “objectively unreasonable,” a “substantially higher threshold.” (Renico v. Lett (2010) 559 U.S. 766, 773.) The closest the Supreme Court has come on this issue is its decision in the case of Illinois v. Perkins (1990) 496 U.S. 292. In Perkins, an undercover agent was placed in a cell with a defendant, who was already incarcerated on charges unrelated to the subject of the agent’s investigation. The defendant made statements implicating himself in the crime the agent was investigating. When the prosecution sought to use those statements against him at trial, the defendant argued that his statements should be inadmissible because he had not been given?Miranda?warnings by the agent. The Supreme Court disagreed, holding that an undercover law enforcement officer posing as a fellow inmate need not give?Miranda?warnings to an incarcerated suspect before asking questions that may elicit an incriminating response.  

Per the Supreme Court:?“Miranda?forbids coercion, not mere strategic deception by taking advantage of a suspect’s misplaced trust in one he supposes to be a fellow prisoner.”?(Id.?at 297.)?When a suspect “boast[s] about their criminal activities in front of persons whom they believe to be their cellmates,” those statements are considered voluntary.?(Id.?at 298.)?Thus, there “is no federal obstacle to their admissibility at trial.”?(Id.?at 300.)  

The defendant in this new case argued that because he was in effect questioned by a police agent on a case for which he had already invoked his right to the assistance of counsel, Perkins didn’t apply. However, being a habeas corpus proceeding, the rule is not whether the defendant here is right or wrong, but whether the state court’s decision in admitting the defendant’s statements against him at trial is “contrary to clearly established federal law.”  

The “clearly established federal law” requirement is provided for in 28 U.S.C. § 2254(d)(1) of the Antiterrorism and Effective Death Penalty Act of 1996, or AEDPA. Under this federal statute, a defendant can prevail on his habeas petition only if he demonstrates that the state court’s decision (1) “was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States” or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.”  

As noted by the court: “Neither Edwards nor Perkins provides a ‘clear answer’ to the issue presented by (the defendant in this case) — whether the?Fifth Amendment requires the suppression of a defendant’s statements?made to an undercover informant after the defendant invoked his?Miranda?right to counsel during a custodial interrogation.” Nor is there any other guidance from the U.S. Supreme Court on this issue. Therefore, there being no contrary U.S. Supreme Court decision telling the court how to rule, the Ninth Circuit had no choice but to find that the state court’s ruling is not contrary to clearly established federal law.   

This decision doesn’t mean that someday the U.S. Supreme Court (or California’s Supreme Court) won’t change the rule as described here and extend the Perkins decision to a situation similar to what occurred in this case. In the meantime, investigators are free to employ the same tactic of putting an undercover police agent into a defendant’s cell even after he has invoked his Miranda rights.  

Note also that this investigative tactic has similarly been upheld on direct appeal. (People v. Felix (2024) 100 Cal.App.5th 439, at pp. 450-453, a 2-to-1, decision. See California Legal Update, Vol 29, #6; published June 1, 2024, as modified at 2024 Cal. App. Lexis 173.  

In my brief on Felix, I noted that I tended to agree with the dissenting opinion where Presiding Justice Maria E. Stratton argued that it is not legally “permissible for a?Perkins?(undercover) agent to interrogate appellant after he invoked his right to counsel, despite the lack of coerciveness.” Justice Stratton noted that: “Edwards applies even if the subsequent interrogation after invocation of the right to counsel is not coercive. Under Edwards, no police-initiated interrogation whatsoever is to occur unless the accused has given a valid waiver of the right to counsel they previously invoked. (Edwards, supra, 451 U.S. at p. 484.)” But being a dissenting opinion only, Justice Stratton’s theory is irrelevant. The Felix decision was appealed and review was denied at?People v. Felix (May 15, 2024) 2024 Cal. LEXIS 2610.  

So the law in California — as it stands pending a new case from the California or U.S. Supreme Court to the contrary — is that when a suspect invokes his rights under Miranda, be it the right to silence or to the assistance of an attorney, investigators are free to put an undercover police agent into his cell and pump him for incriminating statements. If the rule does get changed someday, we’re no worse off than if nothing had been done. To the contrary, the “good faith” rule will likely come to the rescue and allow for the use of any incriminating statements a suspect might make to a jailhouse informant.  

Also note, however, that the rule is to the contrary if the suspect has already been arraigned. Questioning by an undercover agent any time after a defendant has been arraigned, where an attorney is appointed to represent him, violates the Sixth Amendment right to counsel. (See Massiah v. United States (1964) 377 U.S. 201; and Maine v. Moulton (1985) 474 U.S. 159.) Referred to as a “Massiah violation,” any questioning of one who has been arraigned is strictly forbidden absent an express waiver of the suspect’s right to the assistance of the defendant’s attorney.