Law & Society

Suspects must invoke rights unambiguously; Justice Sotomayer strongly and forcefully dissents as high court narrows Miranda. Our last post dealt with the prospect that the Obama administration may modify the long-standing “public safety exception” of Miranda v. Arizona—the 1966 Supreme Court that established the following prophylactic rules for warning criminal suspects taken into police custody: 1) right to remain silent, 2) anything a suspect says can be used against him in a court of law, 3) suspect has right to have an attorney present during police questioning, and 4) if the suspect cannot afford an attorney, one will be appointed to him prior to police questioning.

In another post earlier this year, we discussed two cases handed down by the Supreme Court which seriously restricted these Miranda warnings. In that post we wrote:
“Miranda has been one of the most controversial decisions ever rendered by the Supreme Court. Law enforcement hates it, prosecutors have consistently tried to overrule it, and the High Court itself has in recent years taken every legal opportunity to undermine it. That is precisely what the Court did this session in two cases: Florida v. Powell and Maryland v. Shatzer. Both of these cases involve situations where the State’s highest courts found a Miranda violation and the Supreme Court elected to overturn those decisions. Significantly, the opinions of the Supreme Court were delivered by its most conservative and liberal justices: Justice Scalia in the Shatzer case and Justice Ginsburg in the Powell case.
“ … Kevin Dwayne Powell was arrested in Tampa, Florida in August 2004 in connection with a robbery investigation. The suspect was taken to the local police headquarters where he was read the standard Miranda rights form: right to silence and right to ‘talk to a lawyer before answering any of our questions.’ Powell signed the waiver form and agreed to talk to the officers. He thereafter told the officers the handgun found in his girlfriend’s apartment was his, and as a convicted felon, he knew it was a crime to possess it. He was charged and subsequently convicted of illegal possession of a firearm by a convicted felon.

“The trial court denied Powell’s attempt to have the statements made to the police suppressed under Miranda. Relying upon a line of Miranda-related decisions, its own decisions, and the Florida Constitution, the Florida Supreme Court overruled the trial court and reversed Powell’s conviction. The Florida high court based its reversal on the fact that a suspect has a right to be ‘clearly informed’ of his right to an attorney’s presence ‘during questioning.’ The Court concluded the advice given to Powell about his right to an attorney had been misleading and added ‘a right that has never been expressed cannot be reiterated.’

“The State appealed to the U.S. Supreme Court and the court granted certiorari review. Powell argued the High Court lacked jurisdiction in the case because the Florida Supreme Court had relied not only upon Miranda but had also upon the Florida Constitution to find a Miranda violation. The Court brushed aside this argument, saying the Florida Supreme Court had not made it ‘clear’ that Miranda was only being used ‘for the purpose of guidance’ or that its decision was grounded in the Florida Constitution. The Court added that while the Florida Supreme Court is free to attach additional Miranda-like protections under the Florida Constitution, it must do so ‘clearly and expressly.’

“The Supreme Court then turned its attention to the third Miranda warning protection: the right to consult and have an attorney present during an interrogation. The Court pointed out it had never adopted a ‘precise formulation’ or the exact words necessary to convey this right to suspects. The Court then concluded the advice the Tampa police had given to Powell was sufficient to reasonably convey to the suspect that he had a ‘right to have an attorney present, not only at the onset of the interrogation, but at all times.’

“The Shatzer case involved a situation where an inmate, Michael Blaine Shatzer, was serving time in a Maryland penal facility for a sex offense. In August 2003 the Hagerstown Police Department received information that Shatzer had sexually molested his three-year-old son prior to his incarceration. A police detective visited Shatzer at the prison to question him about the allegation concerning his son. After being apprised of his Miranda rights, Shatzer refused to talk to the detective without an attorney being present. The police closed the case. Three years later additional information was developed linking Shatzer to the sexual abuse of his son. Another detective was sent to the prison to question him about the case. This time after being read his Miranda rights Shatzer signed a waiver and agreed to speak with the detective. After about thirty minutes of questioning, Shatzer implicated himself in sexual impropriety with his son. A second interview was conducted with Shatzer during which he further incriminated himself by telling the police he didn’t force his son into the sexual impropriety. Shatzer was charged and convicted of sexual child abuse of his son.

“The U.S. Supreme Court nearly three decades ago held in Edwards v. Arizona that absent a ‘break in custody,’ the Miranda rights remain intact throughout the custodial interrogation process. Shatzer moved to suppress his 2006 statements under Edwards, arguing that his return to the general prison population did not constitute a break in the custodial interrogation process. The Maryland Court of Appeals agreed, saying ‘the passage of time alone is insufficient to [end] the protections afforded by Edwards,’ and that Shatzer’s release back into general population between the 2003 and 2006 interrogations did not constitute a break in custody within any of the Edwards exceptions.

“The State of Maryland appealed to the Supreme Court, prompting the Court to decide exactly what constitutes a ‘break in custody’ within the purview of Edwards. The Court confronted the issue with the following questions: ‘If Shatzer’s return to the general prison population qualified as a break in custody … there is no doubt that it lasted long enough (2 ½ years) to meet that durational [Edwards] requirement. But what about a break that has lasted only one year? Or only one week? It is impractical to leave the answer to that question for clarification in future case-by-case adjudication; law enforcement officers need to know, with certainty and beforehand, when renewed interrogation is lawful.’

“The Court then set a 14-day period as the precise ‘break in custody’ requirement within the Edwards custodial interrogation framework. In effect, a suspect held in actual custody on a criminal charge who invokes his right to silence and counsel is protected for 14 days. Any statement the suspect gives to the police after that 14-day period is not protected by the four Miranda rights should he elect to give the police a confession.”

On June 1, 2010 the Supreme Court in yet another decision, Berghuis v. Thompkins, took another bite out of the constitutional parameters of Miranda. Like Shazter and Power, Berghuis also involved a situation where the Supreme Court reversed a lower court decision granting Miranda relief—this time it was the Sixth Circuit Court of Appeals.

For Berghuis to be understood, the decision must be prefaced with precedent from a 1994 case in Davis v. United States in which the court ruled that a suspect must invoke his Miranda right to counsel “unambiguously;” that any “ambiguous or equivocal” statement, or no statement at all, does not require the police to stop questioning the suspect or to try and “clarify” the suspect’s intent.

Berghuis v. Thompkins
In January 2000 there was a shooting outside a mall in Southfield, Michigan. One victim died in the shooting and another survived his serious wounds. The local police developed information that Van Chester Thompkins was a suspect in the shooting. Thompkins fled the state and was eventually arrested one year later in Ohio. Two Southfield detectives went to Ohio to interrogate Thompkins who was awaiting transfer back to Michigan. The interrogation was conducted in an 8 by 10 feet room with Thompkins sitting in a desk-like chair. The interview began at 1:30 p.m. and last approximately three hours. A “Detective Helgert” gave Thompkins a “Notification of Constitutional Rights and Statement” (a Miranda rights form). The form specifically advised:

“You have the right to decide at any time before or during questioning to use your right to remain silent and your right to talk with a lawyer while you are being questioned.”

Detective Helgert had Thompkins read this warning out loud, and the suspect complied. The detective concluded that Thompkins “understood English.” Helgert then read Thompkins the other Miranda warnings on the form and asked him to sign the form “to demonstrate that he understood his rights.” Thompkins refused to sign the form. The interview began. The Supreme Court noted that “at no point during the interrogation did Thompkins say that he wanted to remain silent, that he did not want to talk with the police, or that he wanted an attorney.” Thompkins didn’t say much during the interview, responding “yeah” or “no” or “I don’t know” to questions.

“Do you believe in God?” Helgert asked about 15 minutes before the interview ended.
“Yes,” Thompkins replied with tears forming in his eyes.
“Do you pray to God to forgive you for shooting that boy down?” Helgert asked.
“Yes,” Thompkins replied, looking away.

After being returned to Michigan and indicted for first degree murder, Thompkins moved to suppress the statement made to Helgert on the ground that he had invoked his right to remain silent. He relied upon a 1975 Supreme Court decision, Michigan v. Mosley, which held that a suspect must waive his right to an attorney. This was a shaky legal issue because four years after the Mosley decision the Supreme Court in North Carolina v. Butler held that a waiver of the right to counsel did not have to be express and that police could infer a waiver of the right “based on the actions and words of the person interrogated.”

The Sixth Circuit Court of Appeals justified its reversal of Thompkins convictions despite Butler by pointing out that Thompkins’ “persistence silence for nearly three hours of questioning and repeated invitations to tell his side of the story offered clear and unequivocal message to the officers: Thompkins did not wish to waive his rights.” Although the Supreme Court had never applied the Davis rationale, that the invocation of the right to counsel be express and unambiguous, to the right to remain silent, the court found the Sixth Circuit’s anti-Butler reasoning “unpersuasive.” Saying it saw no reason to create a “different standard” than Davis with respect to the right to remain silent, the court explained its position this way:

“There is no good reason to require an accused who wants to invoke his or her right to remain silent to do so unambiguously. A requirement of an unambiguous invocation of Miranda rights results in an objective inquiry that ‘avoid[s] difficulties of proof and … provide[s] guidance to officers’ on how to proceed in the face of ambiguity. If an ambiguous act, omission, or statement could require police to end the interrogation, police would be required to make difficult decisions about an accused unclear intent and face the consequence of suppression ‘if they guess wrong.’ Suppression of a voluntary confession in these circumstances would place a significant burden on society’s interest in prosecuting criminal activity. Treating an ambiguous or equivocal act, omission, or statement as an invocation of Miranda rights ‘might add marginally to Miranda’s goal of dispelling the compulsion inherent in custodial interrogation.’ But ‘as Miranda holds, full comprehension of the rights to remain silent and request an attorney are sufficient to dispel whatever coercion is inherent in the interrogation process.’

“Thompkins did not say that he wanted to remain silent or that he did not want to talk with the police. Had he made either of those simple, unambiguous statements, he would have invoked his ‘right to cut off questioning.’ Here he did neither, so he did not invoke his right to remain silent.”

Justice Sotomayer, joined by Justices Stevens, Ginsburg and Breyer, sharply dissented from this majority view:

“The strength of Thompkins’ Miranda claim depends in large part on the circumstances of the 3-hour interrogation, at the end of which he made inculpatory statements later introduced at trial. The Court’s opinion downplays record evidence that Thompkins remained almost completely silent and unresponsive throughout that session. One of the interrogating officers, Detective Helgert, testified that although Thompkins was administered Miranda warnings, the last of which he read aloud, Thompkins expressly declined to sign a written acknowledgement that he had been advised of and understood his rights. There is conflicting evidence in the record about whether Thompkins ever verbally confirmed understanding his rights. The record contains no indication that the officers sought or obtained an express waiver.

“As to the interrogation itself, Helgert candidly characterized it as ‘very, very one-sided’ and ‘nearly a monologue.’ Thompkins was ‘[p[eculiar,’ ‘[s[sullen,’ and ‘[g]enerally quiet.’ Helgert and his partner ‘did most of the talking,’ as Thompkins was ‘not verbally communicative’ and ‘[l]argely’ remained silent. To the extent Thompkins gave any response, his answers consisted of ‘a word or two. A ‘yeah,’ or a ‘no,’ or ‘I don’t know’ … And sometimes … he simply saw down … with [his] head in [his] hands looking down. Sometimes … he would look up and make eye-contact would be the only response.’ After proceeding in this fashion for approximately 2 hours and 45 minutes, Helgert asked Thompkins three questions relating to his faith in God. The prosecution relied at trial on Thompkins’ one-word answers of ‘yes.’”

Justice Sotomayer strongly believed, and forcefully said as much, that these particular conditions were insufficient to find Thompkins had knowingly and intelligently waived his right to remain silent. Although he was read his Miranda rights and indicated he understood them, there was simply no evidence to support the unilateral decision by the majority of Court that he had implicitly waived them by not expressly and unambiguously invoking them.

Thompkins stands as yet another indication that the Supreme Court would constitutionally bless any attempt by the Obama administration and Congress to modify the “public safety exception” in terrorism cases. In three cases this year alone the high court has tightened the noose around Miranda’s neck—and as pointed out by Justice Sotomayer, the court had to walk over a number of precedents to justify that noose tightening. We believe that unless this dangerous trend is reversed soon, before the next quarter of this century has passed, Miranda will have been overruled and hang as a relic in some legal museum.

As we have said in the past, these are dangerous times in which we live with our precious constitutional freedoms under assault from every extreme. Indeed, a bad moon is rising. We are not alarmists wandering in the wilderness ringing the bell of damn and doom. We are pragmatists who clearly read the signs, not tea leaves. We hope we are wrong, but that knot of fear in our gut tells us we are right—.