Confession - Right to Counsel

Montejo v. Louisiana, 129 S. Ct. 2079 (2009)

For 22 years, since the decision in Michigan v. Jackson, 475 U.S. 625 (1986), the law has been that once a defendant has been indicted and an attorney has been requested at arraignment, the police may not initiate questioning of the defendant. That is, the indictment and request for counsel at arraignment was, in the Sixth Amendment context, the same as a defendant invoking his right to the assistance of counsel after being advised of his Miranda rights in the Fifth Amendment context. Police-initiated questioning is not permitted after a defendant invokes his right to counsel in either context, even if the defendant waives his right to counsel after the police improperly initiate the questioning. In this decision, however, the United States Supreme Court overruled Michigan v. Jackson. Noting that requesting an attorney at arraignment is not the same as requesting an attorney during interrogation, the Court concluded that the police should be permitted to initiate questioning even after a defendant has requested the assistance of counsel in court. The defendant, of course, is free to refuse to be interviewed and once he refuses a request to be interviewed, further police-initiated questioning is generally barred (especially, of course, if the defendant is in custody).

Maryland v. Shatzer, 130 S. Ct. 1213 (2010)

In Edwards v. Arizona, the Court held that once the defendant invokes the right to counsel during custodial interrogation, the police must cease interrogation and can never re-initiate interrogation. The question in this case is whether the “never can re-initiate questioning” rule applies even if the defendant is released from custody? The Court holds that once the defendant is released from custody (and that includes being returned to general population in prison, which is not “in custody” for Miranda purposes), the police may re-initiate questioning after fourteen days. In other words, if the defendant invokes his right to counsel and is later released from custody, the police must wait at least fourteen days prior to contacting the defendant and interrogating him.

Fellers v. United States, 540 U.S. 519 (2004)

When a defendant has been indicted, the Sixth Amendment forbids the use of any statement that has been “deliberately elicited” from him by the police. In this case, the defendant had been indicted and the police went to his house and told him that they were there to discuss his involvement in a drug distribution conspiracy. The defendant responded in an incriminating way. The Supreme Court held that the statement was inadmissible because the statement was deliberately elicited by the police. The Court held that “deliberately elicited” is different than the “interrogation” standard of Rhode Island v.Innis, 446 U.S. 291 (1980).

Davis v. United States, 512 U.S. 452 (1994)

After initially waiving his right to counsel and interrogation commenced, the defendant stated, “Maybe I should talk to a lawyer.” The Military appellate court held that clarifying questions by the interrogators were appropriate, and that it was not necessary to cease all questioning. The Supreme Court holds that absent a clear invocation of the right to counsel, there is no reason to cease questioning. While asking clarifying questions after an ambiguous request may be prudent, it is not necessary. Thus, if a suspect says, “Maybe I should talk to a lawyer,” the police may continue questioning without clarifying the suspect’s intent.

McNeil v. Wisconsin, 501 U.S. 171 (1991)

The defendant was charged with one offense, robbery, and at his first appearance, requested the assistance of counsel. An attorney was appointed. This did not prohibit the police from questioning the defendant about uncharged crimes. Under Edwards v. Arizona, of course, once an accused seeks the assistance of counsel in connection with interrogation – a Fifth Amendment right – the suspect may not be interrogated about any offense without complying with his request for counsel. However, where the defendant asserts his right to counsel in connection with a legal proceeding – that is, his Sixth Amendment right to counsel – this is an “offense-specific” request which does not prevent interrogation on unrelated charges.

Texas v. Cobb, 532 U.S. 162 (2001)

There is no exception to the “offense-specific” rule for closely related, or factually related crimes. Thus, if a defendant has counsel in connection with one charged offense, the police may question the defendant, or initiate questioning about another offense, even if the other offense is factually related to the charged offense for which the defendant has counsel.

Minnick v. Mississippi, 498 U.S. 146 (1990)

Surprisingly, the bright line of Edwards v. Arizona was neither bent nor curved in this Supreme Court decision which holds that once an accused requests the assistance of counsel, he cannot be further questioned by the police even if an interview with his attorney has occurred. That is, even if the defendant’s right to counsel is honored and he begins communications with an attorney, the police are thereafter still precluded from attempting to initiate communications with the defendant.

Illinois v. Perkins, 496 U.S. 292 (1990)

The defendant was in jail on charges unrelated to a murder which the police were investigating. The police put an undercover agent in the jail cell block who elicited a confession from the defendant about the murder. The confession was admissible. His right to remain silent and his right to counsel were not violated. Because the essential ingredients of a “police dominated atmosphere” were missing, there was no need for the undercover agent to advise the defendant of his Miranda rights. The atmosphere in the prison was not coercive, at least not with respect to the undercover agent’s conversation with the defendant. The Sixth Amendment was not implicated, because no murder charges had been filed against the defendant at the time of the “interrogation.” Thus, the decisions in Massiah and United States v. Henry and Maine v. Moulton are all distinguishable. In those cases, the undercover agent questioned the defendant about the charges which had already been filed against the defendant, and for which his Sixth Amendment rights had attached.

Michigan v. Harvey, 494 U.S. 344 (1990)

In Michigan v. Jackson, 475 U.S. 625 (1986), the Supreme Court held that the Sixth Amendment bars the police from initiating any interrogation of a defendant who has been formally charged and who has requested the right to counsel. In this case the Supreme Court holds that a violation of this rule does not bar the use of the subsequently obtained statements to impeach the defendant. That is, though the statements may not be used in the State’s case-in- chief, the statements may be used to impeach the defendant if he testifies contrary to his statements.

Duckworth v. Eagan, 492 U.S. 195 (1989)

Advising a suspect that an attorney would be appointed “if and when you go to court” complies with Miranda. That advice correctly reflects the State’s procedure for appointment of counsel which occurs after the defendant’s first court appearance.

Patterson v. Illinois, 487 U.S. 285 (1988)

Following the defendant’s indictment on murder charges, he gave two confessions after being advised of his Miranda warnings and waiving those rights. At trial, the defendant claimed that, because his right to counsel had been triggered by the indictment, the Miranda warnings were not sufficient to protect his Sixth Amendment rights. The Supreme Court disagrees. A waiver of the right to remain silent and the right to counsel may be knowingly made by a defendant even after indictment.

Arizona v. Roberson, 486 U.S. 675 (1988)

The defendant was arrested on charges of burglary. He immediately invoked his right to counsel, thereby shutting off any further interrogation. Three days later, another police officer, unaware of the invocation of the right to counsel, asked the defendant if he would discuss a separate burglary with him. The defendant gave an incriminating statement about that separate burglary. The Supreme Court reverses: Once the defendant has invoked his right to remain silent, he cannot be questioned about any crime. That includes the crime for which he was arrested and all other crimes which the police may want to investigate.

United States v. Hunter, 708 F.3d 938 (7th Cir. 2013)

The defendant was shot by the police and was in the hospital, handcuffed to a gurney. The officer who was sitting with him started talking to him and then read him his Miranda warnings. The defendant responded, “Can you call my lawyer?” The Seventh Circuit concludes that this request amounted to an unambiguous request for counsel and any further interrogation should have immediately ceased.

United States v. Santistevan, 701 F.3d 1289 (10th Cir. 2012)

The defendant was in custody, having been arrested for armed robbery. When initially Miranized, he invoked his right to counsel. Later he called the FBI agent and told him he wanted to discuss the matter. However, before the agent arrived at the jail, he was contacted by the defendant’s lawyer who said that the defendant did not want to talk at this time and that the defendant had a letter expressly invoking the right to counsel at any interrogation. When the agent arrived at the jail, the defendant handed the letter to the agent. The agent then asked the defendant if he wanted to talk to him; the defendant said that he did and then made incriminating statements. The Tenth Circuit held that his was improper interrogation that violated Edwards v. Arizona. Once the letter invoking the right to counsel was handed to the agent, any further interrogation, or attempt to initiate questioning was improper. There was no ambiguity in the letter.

Moore v. Berghuis, 700 F.3d 882 (6th Cir. 2012)

After his arrest, the defendant was placed in an interrogation room. When the police started to interrogate him, he gave the officer an attorney’s business card and asked the officer to call the attorney, commenting, “Maybe I should talk to an attorney.” The officer did so, but just connected to an answering machine. The officer returned to the interrogation room and asked the defendant if he wanted to continue and make a statement, which the defendant agreed to do. The Sixth Circuit held that providing the attorney’s business card was a sufficient invocation of the right to counsel and the officer re-initiation of interrogation was improper. Though Thompkins v. Berghuis held that the invocation of the right to remain silent must be unequivocal, that did not alter the rule that once counsel had been invoked, as in this case, a subsequent waiver may not be initiated by the police. See Edwards v. Arizona. The ensuing confession should have been suppressed and the writ of habeas corpus was granted.

United States v. Wysinger, 683 F.3d 784 (7th Cir. 2012)

The defendant’s invocation of the right to counsel was not ambiguous and the failure to cease interrogation necessitated suppressing the statements made after he sought the assistance of counsel.

United States v. Scott, 693 F.3d 715 (6th Cir. 2012)

The defendant was presented with a Miranda waiver of rights form. The second to last question was, “Do you understand the rights I’ve explained to you?” The last question was, “Having these rights in mind, do you wish to talk to us now?” The defendant answered “yes” to the first question and “no” to the second question. The government contended that the “no” answer only applied to his decision to remain silent, and not necessarily to his right to counsel. If he only invoked his right to remain silent, the police could re-initiate questioning later. If he invoked his right to counsel, however, the police could never re-initiate questioning. The Sixth Circuit held that any ambiguity in the form was held against the government.

Sessoms v. Runnels, 691 F.3d 1054 (9th Cir. 2012) (en banc)

After receiving Miranda warnings, in order to invoke the prohibition of further questioning required by Edwards v. Arizona, the defendant’s invocation of the right to an attorney must be unambiguous. Davis v. United States, 512 U.S. 452 (1994). What happens, however, if the defendant invokes his right to counsel in an ambiguous manner before he is read his Miranda rights? In this en banc decision, the Ninth Circuit holds that questioning must stop. The rationale is that an effort to obtain the assistance of counsel prior to being read Miranda warnings must be honored even if the request is not clear, because the target may not fully understand his rights at that point in time; whereas after having been informed of his rights, the defendant’s rights should be clear to him and therefore, his invocation must be unambiguous. After remand from the United States Supreme Court (for further consideration in light of Salinas v. Texas, 133 S. Ct. 2174 (2013)), the en banc court concluded that the invocation of the request for counsel was, in fact, unambiguous, and therefore any further questioning was improper. Sessoms v. Grounds, 776 F.3d 615 (9th Cir. 2015) (en banc). The defendant asked, “There wouldn’t be any possible way that I could have a – a lawyer present while we do this?” and then “Yeah, that’s what my dad asked me to ask you guys – uh, give me a lawyer.” There was nothing ambiguous about this request.

Wood v. Ercole, 644 F.3d 83 (2d Cir. 2011)

When the police said that they wanted to tape the defendant’s statement, he said, “I think I should get a lawyer.” This was an unambiguous request for counsel and any further interrogation was improper.

Dixon v. Houk, 627 F.3d 553 (6th Cir. 2010)

When initially questioned, the defendant stated that he would not answer questions without a lawyer. The police approached the defendant a second time, did not Mirandize him and offered to “cut him a deal” after which the defendant made an incriminating statement. He was the Mirandized and repeated the incriminating statement. The statement was inadmissible because it was obtained in violation of Miranda, it violated his right to counsel, it was not “voluntary” (because of the offer of a deal) and violated Seibert. THE SUPREME COURT REVERSED, HOLDING THAT THE TWO-STEP SEIBERT TYPE OF INTERROGATION WAS NOT EMPLOYED BY THE POLICE IN THIS CASE. BOBBY v. DIXON, --- S.Ct. --- 10-1540 (11/7/11).

Ayers v. Hudson, 623 F.3d 301 (6th Cir. 2010)

When the police place an informant in a cell with a defendant and the defendant confesses to the informant, this presents a Massiah or United States v. Henry issue, which involves a violation of the defendant’s Sixth Amendment right to counsel through the use of an “agent” of the state. Massiah v. Uninted States, 377 U.S. 201 (1964); United States v. Henry, 447 U.S. 264 (1980). The question in this case was what makes the informant an “agent of the state?” The Sixth Circuit held that a violation of the Sixth Amendment does not require proof that the police expressly directed the informant to question the defendant. In fact, a Sixth Amendment violation can occur even when the police specifically instruct the informant not to initiate any conversation with the defendant regarding the offense with which the defendant has been indicted. The focus of the court’s analysis must be on the likely result of the state’s conduct. The facts of this case showed that the detectives may have actually provided to the informant certain topics about which the police needed more information. The Sixth Circuit granted a writ.

Tolliver v. Sheets, 594 F.3d 900 (6th Cir. 2010)

During the course of the interrogation of the defendant, he announced that he did not want to talk anymore prior to seeing a lawyer. The police continued the interrogation despite this clear invocation of his right to counsel. Admitting the ensuing incriminating statements (some of which were introduced to show the defendant’s lack of credibility, even though the statements were not explicitly incriminating), was error. Harmless error.

United States v. Mir, 525 F.3d 351 (4th Cir. 2008)

The defendant, an attorney, was charged with certain offenses relating to immigration fraud. While the case was pending, the government learned that he was trying to induce certain witnesses to lie to the grand jury and to the prosecutors. The government wired these witnesses and sent them in to talk to the defendant. Though the defendant was indicted for the immigration fraud offense, the investigation was for a separate offense (witness tampering and obstruction of justice), therefore, communication with the defendant was not barred by the Sixth Amendment under the Texas v. Cobb, rule. The court noted that if the defendant had requested that portions of the undercover tapes be redacted, a severance might have been appropriate to delete any references to the underlying fraud offense.

United States v. Lee, 413 F.3d 622 (7th Cir. 2005)

After having the Miranda rights read to him, the defendant asked, “Can I have a lawyer?” This was an unambiguous request for counsel and any further interrogation or effort to clarify was improper.

United States v. Mills, 412 F.3d 325 (2d Cir. 2005)

In Texas v. Cobb, 532 U.S. 162 (2001), the Supreme Court held that the “offense-specific” feature of the Sixth Amendment means that if a defendant’s Sixth Amendment rights are invoked with regard to one offense, that invocation has no bearing on related, but different offenses. In this case, however, the defendant had been indicted in state court on firearm charges and was improperly questioned in violation of the Sixth Amendment. But the feds argued that they could use the statements, because the subsequent federal charges – virtually indistinguishable federal firearms charges – were not the same offense. The Second Circuit held that Texas v. Cobb notwithstanding, the improper state interrogation for the firearms charge could not be utilized by the federal government in a prosecution for the same firearm possession. The Fourth Circuit reached a contrary result (as have numerous other courts) in United States v. Alvarado, 440 F.3d 191 (4th Cir. 2006).

United States v. Johnson, 400 F.3d 187 (4th Cir. 2005)

After being advised of his Miranda rights, the defendant was given a written waiver form which had the following question: “Do you want to make a statement at this time without a lawyer?” The defendant responded “No.” The government argued that this amounted to an invocation of the right to remain silent (after which the police were entitled to renew questioning with further advice of rights), as opposed to an invocation of the right to counsel, which bars any further questioning at any time. The Fourth Circuit rejected the government’s argument, holding that this was not an equivocal request and that any ambiguity in the form was the fault of the government, which drafted the form. Admitting the subsequent statement of the defendant was harmless error.

Guidry v. Dretke, 397 F.3d 306 (5th Cir. 2005)

The defendant invoked his right to counsel and the police then left the room. Shortly thereafter they returned and told the defendant that his attorney told them it was ok for him to make a statement. Actually, the police never contacted the attorney. The ensuing confession should have been suppressed.

United States v. Johnson, 400 F.3d 187 (4th Cir. 2005)

A form was given to the defendant after he was arrested and he checked the “no” box next to the question, “Do you want to make a statement at this time without a lawyer?” This amounted to a request for counsel and subsequent interrogation violated the rule of Edwards v. Arizona, which bars any questioning after the invocation of the right to counsel. The checked box was not limited to the issue of right to remain silent, because of the explicit reference to the right to counsel. If the defendant had only invoked his right to remain silent (as opposed to the additional right to counsel), subsequent questioning would have been permitted).

Abela v. Martin, 380 F.3d 915 (6th Cir. 2004)

When initially questioned by the police, the defendant stated, “Maybe I should talk to a lawyer,” and then displayed his lawyer’s card and mentioned him by name. This is an unequivocal request for counsel and further questioning should not have occurred. The court distinguished the seminal case on equivocal requests, Davis v. United States, 512 U.S. 452 (1994), because in that case, the question, “Maybe I should talk to a lawyer” was too non-specific and did not relate to a specific lawyer. The fact that the officer left the room and then returned and read Miranda warnings to the defendant did not cure the problem, because pursuant to Edwards v. Arizona, 451 U.S. 477 (1981), the police may not re-initiate interrogation of a suspect after the suspect has requested the assistance of counsel.

Randolph v. California, 380 F.3d 1133 (9th Cir. 2004)

Although the facts were not clearly established in the lower court, one interpretation of the facts indicated that the police returned a jailhouse informant to a jail cell in which the defendant was housed. The police knew the informant was seeking leniency in his case and that the informant had made specific reference to the fact that he was housed with the defendant. No specific promise was made to him, however, and there was no deal in place. Sure enough, the informant testified at defendant’s trial about statements made by the defendant after the informant was returned to the jail. This interpretation would amount to a Massiah violation. Placing the informant back in the jail, knowing that he was going to attempt to obtain statements from the defendant in exchange for leniency in his own case amounted to “specifically eliciting” statements from the defendant in violation of his Sixth Amendment rights. Because the timing of the initial meeting with the police was not clear, however, a remand for better development of the facts was required.

Hart v. Florida Attorney General, 323 F.3d 884 (11th Cir. 2003)

After waiving his Miranda rights, the defendant asked to speak with a detective with whom he was acquainted. He asked the detective about the pros and cons of having an attorney. The detective told him that the “con” was that the attorney would tell him not to answer the police officer’s questions. The detective also told the defendant that honesty wouldn’t hurt him.” The defendant then confessed. The Eleventh Circuit held that the detective’s statements violated Miranda. Honesty could, in fact, hurt the defendant, and the statement discouraging the use of a lawyer was inappropriate. Both statements contradicted the protection of Miranda.

Ghent v. Woodford, 279 F.3d 1121 (9th Cir. 2002)

The continued questioning of the defendant after he requested the assistance of counsel was error. Suggesting, moreover, that the defendant talk to a psychiatrist was error, after the defendant invoked his right to counsel. The use of the defendant’s post-invocation statements was reversible error at the penalty phase of his death penalty trial.

United States v. Abdi, 142 F.3d 566 (2d Cir. 1998)

Following defendant’s arraignment on drug importation charges, he gave a statement to an INS agent. The government sought to introduce this statement (characterizing it as “impeachment”) to prove that the defendant understood English. The defendant had already retained counsel at the time of this interview and had not waived his right to counsel. Because there was no waiver of the right to counsel, this statement was not even admissible as impeachment. See United States v. Spencer, 955 F.2d 814 (2d Cir. 1992) (Michigan v. Harvey limited Michigan v. Jackson, by holding that a statement obtained during police initiated questioning after a request for counsel, while violative of Sixth Amendment prophylactic standards, may be admissible to impeach a defendant on cross-examination if given after a knowing and voluntary waiver of his right to counsel). Absent such a waiver, the statement would be inadmissible even for impeachment purposes.

United States v. Bender, 221 F.3d 265 (1st Cir. 2000)

While awaiting trial on charges of possession of a firearm by a convicted felon, the defendant told some of cellmates that he planned to fabricate an alibi and possibly murder government witnesses. His cellmates reported the plans to the authorities and an undercover agent went to the jail, posing as an “alibi-for-hire.” The agent did not discuss the present charges (i.e., the possession of the firearm), but did talk about the plans to fabricate an alibi and to hire a hit man. The trial court suppressed the statements on the grounds that the interrogation of an indicted defendant violated his sixth amendment rights. Maine v. Moulton, 474 U.S. 159 (1985). The First Circuit affirmed. The government argued that the statements related to a future crime (suborning perjury and murder) not the indicted offense. The First Circuit disagreed: the statements were plainly incriminating as to the charged offense. The government is free to use the statements in a subsequent prosecution for suborning perjury, or attempted murder; but the statements are not admissible in the felon in possession case.

United States v. Browne, 891 F.2d 389 (1st Cir. 1989)

Law enforcement agents failed to honor the defendant’s request to consult with a lawyer prior to the continuation of interrogation. All subsequent statements violated the rule of Edwards v. Arizona and should have been suppressed at trial.

United States v. Szymaniak, 934 F.2d 434 (2d Cir. 1991)

Defendant requested to have counsel present before answering any questions. Specifically, the defendant stated, “I’m in a lot of trouble and I want to speak to my lawyer.” At trial, the government was permitted to introduce this statement. This was reversible error.

United States v. Hammad, 846 F.2d 854 (2d Cir. 1988)

The Assistant United States Attorney encouraged an informant to question a suspect who the prosecutor knew was represented by an attorney. No prosecution had yet been commenced, so there was no Massiah problem. Nevertheless, the Second Circuit holds that this conduct violates DR7- 104(A)(1) which prohibits a lawyer from communicating with a “party” he or she knows to be represented by counsel regarding the subject matter of that representation. The Second Circuit holds that in many circumstances, the exclusion of evidence would be a permissible sanction, but that in this case, because the law was previously unsettled, suppression would be an inappropriate remedy. In a revised opinion, 858 F.2d 834, the court added this caveat: In those rare cases where a career criminal has retained “house counsel” the prosecutor is “authorized by law” to employ certain investigative techniques despite the defendant’s having retained an attorney.

United States v. Arnold, 106 F.3d 37 (3rd Cir. 1997)

The Sixth Amendment right to counsel is offense-specific. Thus, generally, if a person has been indicted for one offense and is represented by counsel, the police may not question the defendant about that offense, but may initiate questioning of the defendant with regard to another, uncharged offense. In this case, however, the defendant was indicted for witness intimidation and the police initiated questioning on the subject of attempted murder (of the same witness). The court held that these offenses were “closely related” and the Sixth Amendment barred this questioning. That is, the Sixth Amendment prohibits questioning an indicted defendant about the charged offense, or any “closely related” charge. THIS DECISION WAS OVERRULED by Texas v. Cobb, 532 U.S. 162 (2001).

Wilson v. Murray, 806 F.2d 1232 (4th Cir. 1986)

At the time of his arrest, the defendant refused to answer any questions and sought the advice of counsel. He renewed his request for counsel at the time of his arraignment. Nevertheless, shortly after the arraignment, police confronted the defendant with a co-defendant who had confessed. When confronted with his co-defendant, the defendant made statements which were incriminating. The Fourth Circuit ruled these statements inadmissible under Edwards v. Arizona, and Michigan v. Jackson, (request for attorney at arraignment foreclosed further questioning).

United States v. Rodriguez, 993 F.2d 1170 (5th Cir. 1993)

Defendant and several others were arrested on state drug charges. An attorney was appointed at arraignment to represent the defendant. Later, one of several co-conspirators contacted a federal agent and said “they” wanted to talk to him. The federal agent interviewed the defendant who made a statement. This interview was “initiated” by the police under the Edwards v. Arizona standard because the defendant did not initiate the interview. His statement should have been suppressed and his conviction was therefore reversed.

United States v. Cannon, 981 F.2d 785 (5th Cir. 1993)

Though the record was in need of further development, the defendant offered sufficient proof that after he requested the assistance of counsel, the agents renewed questioning of him. After making an incriminating statement to one agent, he later made a statement to another agent after being advised of his Miranda rights again. Nevertheless, if the first statement was Edwards-tainted, then the second statement would also be tainted as the fruit of the first statement.

United States v. Johnson, 954 F.2d 1015 (5th Cir. 1992)

The defendant was aware that one of his co-defendants had announced his intention to enter a guilty plea. After the co-defendant entered into the plea, he was wired by IRS agents and he went to the defendant’s home and taped him – eliciting incriminating responses. This “interrogation” violated Massiah and Maine v. Mouton. Though the defendant was aware that the co-defendant had entered a plea, he did not know that he was being questioned, in essence, by the police, in the absence of his lawyer.

Davis v. Puckett, 857 F.2d 1035 (5th Cir. 1988)

While in the custody of a sheriff, the defendant unequivocally requested the services of an attorney. Counsel failed to appear and the sheriff initiated another round of interrogation. Although the defendant was fully advised of his rights and signed the waiver of those rights, the police initiated questioning was improper requiring the suppression of the statement. However, because of a procedural default, the issue was waived.

United States v. Wolf, 879 F.2d 1320 (6th Cir. 1989)

The defendant, in state custody awaiting trial on unrelated charges, was questioned by federal agents about a murder. The defendant had sought the assistance of counsel at her state court arraignment. The questioning by federal agents was improper and the statement was not admissible. The court held that the defendant’s request for counsel at the arraignment was the equivalent of asking for counsel for Miranda purposes and, pursuant to Arizona v. Roberson, the police could not initiate questioning about any crime, once the defendant seeks an attorney for Miranda purposes. This decision would probably be different post-McNeil v. Wisconsin, 501 U.S. 171 (1991).

Espinoza v. Fairman, 813 F.2d 117 (7th Cir. 1987)

At the time of his arraignment on weapons charges, the defendant accepted the appointment of a public defender. Subsequently, police questioned him about an unrelated murder charge. The Seventh Circuit holds that this is improper. Once the defendant has an attorney at arraignment, he cannot be questioned about related crimes. This constitutes a violation of Edwards v. Arizona. This decision did not survive McNeil v. Wisconsin, 501 U.S. 171 (1991).

Pope v. Zenon, 69 F.3d 1018 (9th Cir. 1995)

During interrogation, the defendant asked about one of the clauses of the Miranda waiver form, which provided that he had the right to have the advice of counsel before questioning. The officer responded that he could not have a lawyer until tomorrow. The questioning then continued. This was impermissible. The defendant has the right to the assistance of counsel before questioning continues, not “tomorrow.” Admitting the confession, however, was harmless error.

United States v. Cheely, 36 F.3d 1439 (9th Cir. 1994)

The defendant was in prison, but was being investigated for a mail bomb murder. Postal inspectors read him his Miranda rights and he declined to sign a waiver, explaining, “My attorney would not want me to talk with you.” The officers responded, “With that in mind, would you still want to talk to us?” The defendant said he would speak. This was improper interrogation. Once the defendant made the statement about his attorney, further questioning should have ceased. The court re-affirmed its ruling after reconsideration in light of Davis v. United States, 114 S.Ct. 2350 (1994).

United States v. de la Jara, 973 F.2d 746 (9th Cir. 1992)

Though there was some ambiguity to the defendant’s request for counsel (made in Spanish), the officer apparently understood the defendant to be asking for a lawyer and thus, the interrogation should have ceased.

United States v. Martinez, 972 F.2d 1100 (9th Cir. 1992)

The defendant was arrested on a state weapon charge, and at arraignment requested the assistance of counsel. The state charges were subsequently dropped, but the defendant was held in jail on the basis of a parole violation. Later, the federal grand jury indicted the defendant for possessing the same weapon which gave rise to the state charge. He was approached by federal law enforcement agents, Mirandized and made incriminating statements. In Michigan v. Jackson, the Supreme Court held that once a defendant has been indicted and exercises his Sixth Amendment right to counsel, he cannot be re-interrogated. However, in McNeil v. Wisconsin, the Court held that this right was “offense-specific”; that is, the police may interrogate the defendant about offenses other than those for which the Sixth Amendment applied, the offense set forth in the indictment. Here, the question is whether McNeil applies to the same “conduct” (possessing the weapon), or the same offense (state charges vs. federal charges). The Ninth Circuit holds that the request for counsel in connection with the offense conduct does not necessarily trigger the absolute bar of Michigan v. Jackson, but McNeil v. Wisconsin does not clearly authorize the interrogation in this case. If both charges were pending at the same time, then the question is simply whether the prosecutions were inextricably intertwined. Here, however, the charges in the state system had been dismissed prior to the federal indictment. In that situation, the question is whether the governments cooperated in a manner designed to circumvent the Sixth Amendment. A remand for further fact-finding was required.

United States v. Lucas, 963 F.2d 243 (9th Cir. 1992)

Defendant was arrested on an auto theft charge and, when read his Miranda rights, requested the assistance of counsel. Shortly thereafter, the FBI arrived to question the defendant about his participation in a recent bank robbery. Defendant waived his rights and confessed. The confession should have been suppressed. Re-interrogation was not permissible after the invocation of the right to counsel. The fact that it was different officers, asking about a different case, is inconsequential. Arizona v. Roberson.

Collazo v. Estelle, 940 F.2d 411 (9th Cir. 1991)

When he was first interrogated the defendant requested the assistance of counsel. The police responded that that would make it worse for him, and then left. Three hours later, the defendant initiated further contact and then confessed. This amounted to an involuntary waiver of Miranda rights and the confession should not have been admitted. Not only did the police misconduct amount to a Miranda violation, it also rendered the confession involuntary since it suggested that the failure to confess right then would have severe consequences. The lapse in time between the officer’s “threat” and the defendant’s re-initiation of contact did not cure the error. The defendant’s communication with the police reflected his fear of what would happen if he didn’t: a fear engendered by the police officer’s threat. Even under Arizona v. Fulminante, the coerced confession was grounds for reversal.

Robinson v. Borg, 918 F.2d 1387 (9th Cir. 1990)

Upon being interrogated, the defendant told the police officers, “I have to get me a good lawyer, man.” This constitutes an unambiguous request for an attorney and all further questioning should have immediately ceased.

United States v. Kimball, 884 F.2d 1274 (9th Cir. 1989)

The defendant was in custody on money laundering charges. Informants were sent to the jail and asked the defendant to help them recover money which was owed to them. The court held that not only the suppression of the defendant’s statements to the informant and other agents was necessary, but evidence derived from those statements, including statements of co-conspirators would also be suppressed. It is enough that absent the unconstitutional jailhouse encounter, the co-conspirator probably would not have continued to deal with the agents.

Smith v. Endell, 860 F.2d 1528 (9th Cir. 1988)

The defendant was arrested on drug charges and waived his Miranda rights and began providing information to the police. The interrogation turned to the issue of an unresolved murder and the defendant stated if he was a suspect in that, he would like to talk to a lawyer. The officer stated that he might be a suspect but failed to terminate questioning at that point. Suppression of the ensuing confession was required.

United States v. Nordling, 804 F.2d 1466 (9th Cir. 1986)

A detainee stated that he wanted to speak with his lawyer. This is sufficient to invoke his right to remain silent and subsequent questioning by a narcotics officer was improper and resulting statements were suppressed.

United States v. March, 999 F.2d 456 (10th Cir. 1993)

The defendant interrupted questioning with the inquiry, “Do you think I need an attorney?” This amounted to an ambiguous request for counsel which required the cessation of all substantive questioning. The police properly told the defendant that the “call was his” and that they would ask no further questions if he wanted to speak with an attorney. Thereafter the defendant agreed to be questioned.

United States v. Kelsey, 951 F.2d 1196 (10th Cir. 1991)

During the course of a search of the defendant’s house, but before he had the Miranda rights read to him, the defendant requested to see his lawyer. Thereafter, he was Mirandized and questioned. He made incriminating statements. The statements should have been suppressed. The fact that the request for counsel preceded the reading of the Miranda rights did not avoid the bright line rule of Edwards v. Arizona. Also, the fact that the interrogating officers were different than the officers to whom the defendant made his request for counsel is not consequential. Once a request for counsel is made, knowledge of that request is imputed to all law enforcement officers.

United States v. Mitcheltree, 940 F.2d 1329 (10th Cir. 1991)

Defendant, after being released on bond, contacted her friend and hairstylist about her pending prosecution. She knew her friend was a potential witness. Her friend, unbeknownst to her, was bugging her. The method by which the hairdresser questioned the defendant and led her to certain topics was a violation of Massiah and Maine v.Moulton and United States v. Henry. The government’s argument that they were investigating witness tampering would be meritorious (Illinois v. Perkins), except for the fact that the informant was clearly working at obtaining incriminating admissions about the pending indictment. Finally, the court concludes that the statements were not admissible even in the witness tampering counts: “When a deliberate Sixth Amendment violation occurs concerning pending charges, the government may not use defendant’s uncounseled incriminating statements at a trial of those or very closely related subsequent charges.” This case contains an encyclopedia of case law on the issues presented.

Parker v. Singletary, 974 F.2d 1562 (11th Cir. 1992)

Shortly after the defendant’s arrest, he was brought to the DA’s office. He refused to talk. He was later brought to the jail where he told a magistrate that he was going to hire an attorney. Later, the public defender’s office informed the sheriff that they represented the defendant. A student intern from the P.D.’s office was sent over to meet with the defendant. The defendant insisted on hiring his own lawyer, however. Nevertheless, the defendant, in the presence of the intern from the P.D.’s office, made a full statement to the sheriff. During the course of the statement, the defendant repeatedly stated that he was still interested in having his mother hire a lawyer for him. Even though the intern was present, this confession was taken in violation of the defendant’s right to have counsel present. At a minimum, defendant’s persistent requests to have his own attorney present amounted to an equivocal request for counsel.

Stokes v. Singletary, 952 F.2d 1567 (11th Cir. 1992)

Immediately after being arraigned and having an attorney appointed to represent him, the defendant was brought to an interrogation room and questioned about his participation in a murder. In a lengthy opinion reviewing the standards for evaluating this type of claim in a habeas proceeding, the court holds that a further evidentiary hearing was necessary to determine whether the state violated defendant’s Sixth Amendment right to counsel.

Cannady v. Dugger, 931 F.2d 752 (11th Cir. 1991)

The defendant stated, “I think I should call my lawyer.” After balking at making a phone call the defendant was asked by the police, “Would you like to talk about it?” This was improper interrogation and was not a request for clarification of an ambiguous request for counsel.

United States v. Gomez, 927 F.2d 1530 (11th Cir. 1991)

After his arrest, the defendant was advised of his Miranda rights and responded that he wanted to speak with an attorney. Following this request, an agent told the defendant that he should immediately discuss with his attorney the benefits of cooperating and that if he cooperated he could get a sentence of less than life in prison. A few minutes later, the defendant – having not seen an attorney – gave a full statement. The agent’s comments amounted to improper continued “interrogation” and the resulting confession should have been suppressed.

United States v. Terzado-Madruga, 897 F.2d 1099 (11th Cir. 1990)

After arresting the defendant, the police arranged to have a former colleague of his make a number of taped phone conversations while the defendant remained in jail. The defendant was taped in his efforts to enlist his former colleague in murdering another individual. This violated the defendant’s Sixth Amendment rights. Massiah v. United States, 377 U.S. 201 (1964); United States v. Henry, 447 U.S. 264 (1980); Maine v. Moulton, 474 U.S. 159 (1985). However, evidence of the defendant’s murder for hire plot was not introduced in his drug trial which was the subject of this appeal; the severance of counts and the exclusion of the statements rendered the Sixth Amendment violation moot with regard to this prosecution. The court goes on to hold, however, that the incriminating statements with regard to the murder-for-hire scheme would be admissible in that trial since his Sixth Amendment right to counsel had not yet attached with regard to that offense.

Cervi v. Kemp, 855 F.2d 702 (11th Cir. 1988)

The defendant was arrested and brought before a magistrate for an initial court appearance at which time he requested the services of an attorney. The defendant was subsequently moved to Georgia where he was interrogated without being furnished the services of an attorney. The defendant’s invocation of his right to an attorney barred all further counselless questioning unless initiated by the defendant himself.

Owen v. Alabama, 849 F.2d 536 (11th Cir. 1988)

After being advised of his Miranda rights, the defendant stated, “I think I’ll let you all appoint me one.” Interrogation of the defendant should have been suspended in order to determine whether he, in fact, did want an attorney present.

Fleming v. Kemp, 837 F.2d 940 (11th Cir. 1988)

The defendant stated that he did not want appointed counsel because he was going to get his own attorney. This constitutes the invocation of the right to counsel and subsequent police-initiated questioning was invalid under Edwards v. Arizona. The admission of these statements, however, did not require vacating the death sentence since these statements had no bearing on the aggravating circumstance of whether the victim had been murdered while engaged in the performance of his duties as a police officer.

United States v. Johnson, 812 F.2d 1329 (11th Cir. 1986)

Following his invocation of the right to counsel, the defendant stated, “All this trouble, all for trying to get some money.” This statement was not admissible at trial as it was made after his invocation of the right to remain silent. Furthermore, the defendant’s subsequent testimony at trial admitting his participation in some criminal activity did not moot the issue. Had the statement been ruled inadmissible, the defendant might not have taken the stand and the error would not have been rendered moot.