E-Newsletter Online Legal Questions Answered:

Question Title: Separate Crimes - Same Miranda Response

E-Newsletter Edition: October 24, 2007

Response Provided By:
Brian S. Batterton - Legal & Liability Risk Management Institute

Always note that state law may be more restrictive on police power than the U.S. Constitution.

QUESTION:
In reference to the "Legal Question" from September 19, 2007, regarding Miranda: Your answer indicated that when a person has requested counsel no further questioning can be initiated by the police. However, if a detective is investigating a crime unrelated to the crime for which to person has been arrested (and has invoked his right to counsel), can police question the person about this unrelated crime after Miranda has again been given?

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ANSWER:

The short answer is “no.” After a person has invoked their right to counsel during a custodial interrogation, the police may not re-initiate contact with that person to question them about an unrelated crime, even if new Miranda warnings are given.

In 1988, the United States Supreme Court decided Arizona v. Roberson which directly addresses the question above. ⁱ  The facts taken from this case are as follows:

On April 16, 1985, [Roberson] was arrested at the scene of a just-completed burglary. The arresting officer advised him that he had a constitutional right to remain silent and also the right to have an attorney present during any interrogation. [Roberson] replied that he "wanted a lawyer before answering any questions." This fact was duly recorded in the officer's written report of the incident. In due course, [Roberson] was convicted of the April 16, 1985, burglary.

On April 19, 1985, while [Roberson] was still in custody pursuant to the arrest three days earlier, a different officer interrogated him about a different burglary that had occurred on April 15. That officer was not aware of the fact that [he] had requested the assistance of counsel three days earlier. After advising [Roberson] of his rights, the officer obtained an incriminating statement concerning the April 15 burglary.

Arizona suppressed the statement as a violation of the clear rule from Edwards v. Arizona.  ⁱⁱ The rule the United States Supreme Court set forth in Edwards is as follows:

A suspect who has expressed his desire to deal with the police only through counsel is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.  ⁱⁱⁱ 

The difference, however, between Roberson and Edwards, is that Edwards was questioned about the same offense after a request for counsel while Roberson was questioned about an unrelated offense.

The court, in deciding Roberson, first considered that, when a suspect invokes his right to counsel, he infers that the he considers himself unable to deal with the pressure of a custodial interrogation without legal counsel. ^iv  The court also reasoned that, as in Roberson, a fresh set of Miranda warnings will not reassure a suspect who has been denied the counsel he has clearly requested that his rights will remain respected. ^v  This is especially true when, in a case such as this, a period of only three days elapsed between the unsatisfied request for counsel and the interrogation about a second offense. ^vi  This presents is a serious risk that the mere repetition of the Miranda warnings would not overcome the presumption of coercion that is created by prolonged police custody. ^vii 

Lastly, the court did not find it significant that the officer who conducted the second interrogation did not know that respondent had made a request for counsel. ^viii  The court opined that, in order to comply with a suspect’s invocation of their right to counsel, the police should establish procedures to determine whether a suspect has previously requested counsel. ^ix  In Roberson’s case, his request for counsel had been properly memorialized in a written report but the officer who conducted the second interrogation simply failed to examine that report. The Supreme Court then held that the Edwards rule applies to bar police-initiated interrogation following a suspect's request for counsel in the context of a separate investigation. Therefore we have the following rule:

Once a suspect has invoked his right to counsel, any further questioning on the part of the police, whether about the same or a different offense and whether by the same or a different officer, may not occur unless the suspect has counsel present or the suspect reinitiates talks with the police. ^x 

In conclusion, the statement made to the police in the second interrogation was not admissible in court.

Citations:

1. 486 U.S. 675 (1988)
2. 451 U.S. 477, (1981)
3. Id. at 484-485
4. Roberson, 486 U.S. at 686
5. Id.
6. Id.
7. Id.
8. Id. at 687
9. Id.
10. Id. at 680-688; Edwards, 451 U.S. at 484-485

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