E-Newsletter Edition: September 19, 2007
Response Provided By: Brian S. Batterton, J.D.
Always note that state law may be more restrictive on police power than the U.S. Constitution.
A suspect has been informed of Miranda and requests not to talk to investigators but does not request an attorney. Questions is…Can the same investigator walk back into the interview room and talk to the suspect minimizing the case? And after that conversation the suspect has changed his / her mind and now wants to answer questions….Is this proper? And will the confession or information provided hold up in court and not be tossed out because of the “fruits of the poisonous tree?”
The United States Supreme Court addressed this very issue in Michigan v. Mosley i. The facts of Mosley, quoted directly from the case are as follows:
The respondent, Richard Bert Mosley, was arrested in Detroit, Mich., in the early afternoon of April 8, 1971, in connection with robberies that had recently occurred at the Blue Goose Bar and the White Tower Restaurant on that city’s lower east side. The arresting officer, Detective James Cowie of the Armed Robbery Section of the Detroit Police Department, was acting on a tip implicating Mosley and three other men in the robberies. 1 After effecting the arrest, Detective Cowie brought Mosley to the Robbery, Breaking and Entering Bureau of the Police Department, located on the fourth floor of the departmental headquarters building. The officer advised Mosley of his rights under this Court’s decision in Miranda v. Arizona, 384 U.S. 436, and had him read and sign the department’s constitutional rights notification certificate. After filling out the necessary arrest papers, Cowie began questioning Mosley about the robbery of the White Tower Restaurant. When Mosley said he did not want to answer any questions about the robberies, Cowie promptly ceased the interrogation. The completion of the arrest papers and the questioning of Mosley together took approximately 20 minutes. At no time during the questioning did Mosley indicate a desire to consult with a lawyer, and there is no claim that the procedures followed to this point did not fully comply with the strictures of the Miranda opinion. Mosley was then taken to a ninth-floor cell block.
Shortly after 6 p.m., Detective Hill of the Detroit Police Department Homicide Bureau brought Mosley from the cell block to the fifth-floor office of the Homicide Bureau for questioning about the fatal shooting of a man named Leroy Williams. Williams had been killed on January 9, 1971, during a holdup attempt outside the 101 Ranch Bar in Detroit. Mosley had not been arrested on this charge or interrogated about it by Detective Cowie. 2 Before questioning Mosley about this homicide, Detective Hill carefully advised him of his “Miranda rights.” Mosley read the notification form both silently and aloud, and Detective Hill then read and explained the warnings to him and had him sign the form. Mosley at first denied any involvement in the Williams murder, but after the officer told him that Anthony Smith had confessed to participating in the slaying and had named him as the “shooter,” Mosley made a statement implicating himself in the homicide. 3 The interrogation by Detective Hill lasted approximately 15 minutes, and at no time during its course did Mosley ask to consult with a lawyer or indicate that he did not want to discuss the homicide. In short, there is no claim that the procedures followed during Detective Hill’s interrogation of Mosley, standing alone, did not fully comply with the strictures of the Miranda opinion [emphasis added]. ii
Mosley’s confession was later admitted in the homicide trial and he was convicted. A Michigan appeals court later reversed his conviction because he was questioned after he invoked his right to silence. The United States Supreme Court heard the case and the issue was as follows:
Did the conduct of the Detroit police (re-questioning Mosley more than 2 hours after he invoked his right to silence) that led to Mosley’s incriminating statement violate the Miranda “guidelines,” so as to render the statement inadmissible in evidence against Mosley at his trial. iii
The Supreme Court held that this “re-questioning” did not violate Mosley’s rights under Miranda and therefore the confession was validly obtained and admissible in court.
Significant factors that the court considered were as follows: (1) Mosley was originally properly advised of his Mirandarights; (2) when Mosley said he did not want to talk about the robberies, the detective immediately ceased questioning and did not try to persuade Mosley otherwise; (3) the second interview occurred after a significant amount of time had passed (more than 2 hours) and at a new location; (4) the second detective also properly advised Mosley of his Miranda rights; and (5) the detective, during the second interview, did not question Mosley about the robberies (he was questioned about a different crime). iv
In conclusion, when a suspect invokes his right to silence, there is not a per se rule against all further questioning, as when a suspect invokes his right to counsel. Under federal constitutional law, cases indicate that a second interview may be allowed when:
The suspect’s right to remain silent was clearly honored in the first interview;
A significant amount of time passed between the first and second interview;
The suspect was given new Miranda warnings before the second interview and clearly waived those rights; and
No pressure tactics or illegal tactics were used to compel the suspect to speak to the officers.
However, it is important to note that there is a different rule when a suspect invokes his right to counsel. In Edwards v. Arizona, the police arrested Edwards for murder and properly advised him of his Miranda rights. v Edwards waived his rights and spoke to the police. He said that he wanted to make a “deal.” The detective told Edwards that he wanted a statement but could not promise him a “deal.” Edwards then said “I want an attorney before making a deal.” The next day two different detectives went to the jail and asked to see Edwards. A detention officer told Edwards that some detectives wanted to talk to him and he said that he did not want to talk to anyone to which the detention officer replied that he “had to” talk to the detectives. Edwards was advised of his Miranda warnings and he said he would talk. The detectives let him listen to the taped statement of his accomplice and Edwards subsequently confessed.
The United States Supreme Court held that:
…when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having 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… vi
Thus, a police officer may not reinitiate an interrogation of a suspect after the suspect has invoked his right to counsel. This is so even if the suspect has had an opportunity to speak to counsel. The only exception occurs if the suspect who had previously invoked his right to counsel himself initiates further contact with the police. vii Of course, fresh Mirandawarnings should be given in a situation where the suspect initiates additional conversation.
423 U.S. 96 (1975)
Id. at 97-98
Id. at 100
Id. at 104-105
451 U.S. 477 (1981)
Id. at 484, 485
Id. at 485