Sixth Amendment Right to Counsel

By: Undisputed Legal/Court Service Department

A. When Right Attaches 

1. The Sixth Amendment provides that “in all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” 

a. State constitution, Const. art. I, § 22, is co-extensive with the Sixth Amendment. See generally State v. Medlock, 86 Wn. App. 89, 97-935 P.2d 693, review denied, 133 Wn.2d 1012 (1997). 

2. The Sixth Amendment right to counsel does not attach until a prosecution is commenced, that is, at or after the initiation of adversary judicial criminal proceedings, whether by way of formal charge, preliminary hearing, indictment, information, or arraignment. McNeil v. Wisconsin, 501 U.S. 171, 175, 115 L. Ed. 2d 158, 111 S. Ct. 2204 (1991). 

a. A defendant’s custodial status is irrelevant to the determination of whether the Sixth Amendment right to counsel has attached. 

  1. Once the Sixth Amendment right to counsel attaches, police may not interrogate the suspect regarding the pending charges without a waiver of Miranda. Patterson v. Illinois, 487 U.S. 285, 108 S. Ct. 2389, 101 L. Ed. 2d 261 (1988). 
  2. Once the Sixth Amendment right to counsel attaches, police may not deliberately elicit statements from the accused in the absence of counsel. Fellers v. United States, 540 U.S. 519, 124 S. Ct. 1019, 157 L. Ed. 2d 1016 (2004). 
  • Deliberate-elicitation standard is not the same as the Fifth Amendment custodial interrogation standard. Fellers, 124 S. Ct. at 1023. 
  • Deliberate-elicitation will not be found if the government agent “made ‘no effort to stimulate conversations about the crime charged.’” Kuhlmann v. Wilson, 477 U.S. 436, 442, 106 S. Ct. 2616, 91 L. Ed. 2d 364 (1986) (quoting United States v. Henry, 447 U.S. 264, 271 n.9, 100 S. Ct. 2183, 65 L. Ed. 2d 115 (1980)). 
    Case law indicates that statements were deliberately elicited in the following circumstances: 

• Officers went to defendant house, knocked on door, identified themselves when defendant answered the door and asked if they could enter the house. Defendant allowed them in. Officers then told defendant they had come to discuss his involvement in methamphetamine distribution and that a grand jury had indicted the 

defendant for conspiracy to distribute methamphetamine. Officers telling the defendant the names of the other individuals named in the indictment was held to have been designed to elicit an acknowledgement from defendant that he knew the other individuals. Fellers v. United States, 540 U.S. 519, 124 S. Ct. 1019, 157 L. Ed. 2d 1016 (2004). 

  • At least one court has held that officers do not deliberately elicit statements when the officers merely tell the defendant that they are there to serve an indictment and to take him into custody. The officers in this case did not indicate to the defendant that they were there to “discuss” anything with him, and when the defendant started to speak, the officers told him to be quiet while they read him his Miranda warnings. The officers also advised the defendant not to speak to them and reminded him that he had an attorney. See Commonwealth v. Torres, 442 Mass. 554, 813 N.E.2d 1261, 1277-78 (2004). See also Torres v. Dennehy, 615 F.3d 1 (1st Cir. 2010), cert. denied, 131 S. Ct. 1038 (2011) (the troopers did not “deliberately elicit” information from him when visiting him in jail to read him the indictment). 
  • Placement of an undercover informant, who was paid on a contingency fee basis and to whom the defendant’s name was mentioned by the government, in the same cell block as the indicted defendant constitutes the type of affirmative steps that violate the deliberate-elicitation test. United States v. Henry, 447 U.S. 264, 100 S. Ct. 2183, 65 L. Ed. 2d 115 (1980). 
  • A probation officer’s request that the defendant tell her his version of the offense during a presentence investigation interview constituted “deliberate eliciation.” State v. Everybodytalksabout, 161 Wn.2d 702, 166 P.3d 693 (2007). 
  • Tour of area of crime scene with defendant after he had invoked his Sixth Amendment right to counsel was attempt to deliberately elicit an incriminating statement. Commonwealth v. Cornelius, 2004 PA Super 255, 856 A.2d 62 (Pa. Super. 2004). 

5. Incriminating statements obtained by “luck or happenstance” after the right to counsel has attached do not violate the Sixth Amendment. Maine v. Moulton, 474 U.S. 159, 176, 106 S. Ct. 477, 88 L. Ed. 2d 481 (1985). 

• Recording telephone conversations the detained defendant made to his parents and the use of those recordings at trial, did not violate the defendant’s Sixth Amendment right to counsel as neither parent 

agreed to work with the government to elicit information and the defendant was clearly informed that his conversations could be recorded. State v. Haq, 166 Wn. App. 221, 268 P.3d 997 (2012). 

6. The Sixth Amendment right to counsel generally ends with the dismissal of charges. An exception may apply if the dismissal of the original charges was a deliberate effort by government representatives to circumvent the Sixth Amendment rights of the accused. See, e.g., United States v. Montgomery, 262 F.3d 233, 246-47 (4th Cir. 2001), cert. denied, 534 U.S. 1034, 122 S. Ct. 576, 151 L. Ed. 2d 448 (2001) (“most courts to consider the question have refused to hold that ‘once a defendant has been charged,’ even after those charges are dismissed, the police and their agents are barred from questioning him “about the subject matter of those charges unless his counsel is present.”); State ex rel. Sims v. Perry, 204 W. Va. 625, 515 S.E.2d 582, 584 (W. Va. 1999); Lindsey v. United States, 911 A.2d 824 (D.C. App. 2006). 

B. Charge Specific Right 

1. The Sixth Amendment right to counsel is offense specific. It cannot be invoked once for all future prosecutions. McNeil v. Wisconsin, 501 U.S. 171, 175, 115 L. Ed. 2d 158, 111 S. Ct. 2204 (1991); State v. Stewart, 113 Wn.2d 462, 780 P.2d 844 (1989), cert. denied, 494 U.S. 1020 (1990). 

  • Thus an individual who has been charged with robbery, may be contacted by police and interrogated about unrelated burglaries. State v. Stewart, supra. 
  • “Unrelated crimes” in the context of the Sixth Amendment means those crimes that do not satisfy the Blockburger double jeopardy test. Texas v. Cobb, 121 S. Ct. at 1343. 

i. Two statutes satisfy the Blockburger test if proof that the defendant violated one statute would establish a violation of the other statute. Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). 

2. A defendant’s statements regarding offenses for which he had not been charged are admissible notwithstanding the attachment of his Sixth Amendment right to counsel on other charged offenses. 

a. Even though the right to counsel under the Sixth Amendment does not attach to uncharged offenses, suspects retain the ability, under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), to refuse any police questioning concerning uncharged offenses. 

C. Waiver of Right 

  1. The Sixth Amendment right to counsel is no greater than the Fifth Amendment right to counsel that existed before charges are formally filed. State v. Visitacion, 55 Wn. App. 166, 170, 776 P.2d 986 (1989) (citing Patterson v. Illinois, 487 U.S. 285, 101 L. Ed. 2d 261, 108 S. Ct. 2389, 2397 (1988)). 
  2. The Sixth Amendment right to counsel can be waived by a defendant if he so chooses, and the waiver will be upheld if the State can show that the defendant knowingly, voluntarily, and intelligently waived his right to counsel. Visitacion, 55 Wn. App. at 170 (citing Brewer v. Williams, 430 U.S. 387, 404, 51 L. Ed. 2d 424, 97 S. Ct. 1232 (1977); Johnson v. Zerbst, 304 U.S. 458, 464, 82 L. Ed. 1461, 58 S. Ct. 1019, 146 A.L.R. 357 (1938). 

a. A child younger than 12 years of age cannot waive his or her Sixth Amendment rights. See RCW 13.40.140(10). The child’s parent, guardian, or custodian must waive the child’s Sixth Amendment rights in order for a confession to be admissible. 

  1. If both parents are present, get a waiver from both parents. 
  2. If the parents waive the child’s Sixth Amendment rights, but the child does not wish to speak to the officer, any confession will probably be ruled inadmissible. 
  3. For older children, the presence of the child’s parents and whether the child’s parents concurred in the waiver of the Sixth Amendment right to counsel are factors to be considered in the “totality of the circumstances.” Dutil v. State, 93 Wn.2d 84, 93, 606 P.2d 269 (1980). 

3. Miranda warnings are adequate to advise an individual of his or her post-indictment Sixth Amendment right to counsel. Patterson v. Illinois, 487 U.S. 285, 101 L. Ed. 2d 261, 108 S. Ct. 2389, 2398 (1988); Visitacion, 55 Wn. App. at 170-71. 

a. Because it is very easy for an officer to say something that a court may later determine was designed to deliberately elicit an incriminating statement, officers are encouraged to read Miranda warnings to anyone who is arrested pursuant to a warrant as early into the contact as possible, regardless of whether the officer intends to interrogate the suspect. 

4. The Sixth Amendment right to counsel in a criminal case belongs to the defendant, not to the attorney. Therefore, a defendant’s attorney cannot prohibit law enforcement from responding to a defendant’s request for contact. See, e.g., State v. Petitclerc, 53 Wn. App. 419, 425, 768 P.2d 516 (1989) (defense attorney’s notice of 

appearance which contained a request that no law enforcement officials question the defendant without his attorney being present did not make it inappropriate for law enforcement officials to contact the defendant, or preclude the defendant from choosing to ignore his attorney’s advice and choose to talk to law enforcement officials). When a defendantinitiates contact with the police, the responding officer should administer Miranda warnings prior to speaking with the defendant. 

a. While police officers may speak with a represented defendant if the defendant initiates contact, prosecutors may not. See RPC 4.2;, United States v. Jamil, 546 F. Supp. 646, 652 (E.D. Ny. 1982), rev’d on other grounds, 707 F.2d 638 (2nd Cir. 1983) (“[t]here is unanimous and fully documented authority for the proposition that prosecutors are no less subject to the prohibition against communication with a represented person than are members of the private bar.”); State v. Morgan, 231 Kan. 472, 646 P.2d 1064, 1070 (1982) (“The prosecutor is a lawyer first; a law enforcement officer second. The provisions of the Code of Professional Responsibility are as applicable to him as they are to all lawyers.”); but see State v. Nicholson, 77 Wn.2d 415, 463 P.2d 633 (1969) (former ethics Cannon 9 only applies to civil cases and does not apply to prosecutors). 

The focus of RPC 4.2 is on the obligation of attorneys to respect the relationship of the adverse party and the party’s attorney. See United States v. Lopez, 4 F.3d 1455, 1462 (9th Cir. 1993). The right belongs to the party’s attorney, not the party, and the party cannot waive the application of the no- contact rule — only the party’s attorney can waive the attorney’s right to be present during a communication between the attorney’s client and opposing counsel. Id.; State v. Miller, 600 N.W.2d 457, 464 (Minn. 1999). The fact that a defendant initiated contact does not excuse a prosecutor from adherence to RPC 4.2. See State v. Ford, 793 P.2d 397, 400 (Utah App. 1990); People v. Green, 405 Mich. 273, 274 N.W.2d 448, 453 (1979). 

A prosecutor may not order a police officer to do what the prosecutor may not do. See RPC 5.3(c)(1); State v. Miller, 600 N.W.2d 457, 464 (1999) (prosecutors will be responsible for a police officer’s contact with a represented individual if the prosecutor “orders or, with knowledge of the specific conduct, ratifies the conduct involved.”). 

i. A violation of RPC 4.2 may subject a prosecuting attorney to discipline by the bar. See, e.g., People v. Green, 405 Mich. 273, 274 N.W.2d 448, 454-455 (1979). 

ii.Statements obtained in violation of RPC 4.2 may be suppressed. See, e.g., United States v. Hammad, 858 F.2d 834, 840-41 (2nd Cir. 1988); State v. Miller, 600 N.W.2d 457, 467-68 (Minn. 1999); contra State v. Nicholson, 77 Wn.2d 415, 419, 463 P.2d 633 (1969); State v. Morgan, 231 Kan. 472, 646 P.2d 1064, 1070 (1982) (suppression is never a remedy for a violation of RPC 4.2); People v. Green, 405 Mich. 273, 274 N.W.2d 448, 454-455 (1979) (suppression is never a remedy for a violation of RPC 4.2). 

5. The appointment of an attorney at first appearance or arraignment does not bar an officer from contacting a defendant for an interview. The officer must, however, immediately tender Miranda warnings and must obtain a voluntary waiver of the defendant’s right to remain silent and right to have an attorney present for the interview. Montejo v. Louisiana, ___ U.S. ___, 129 S. Ct. 2079, 173 L. Ed. 2d 955 (2009). 

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Find Something Wrong on Your Credit Report?

By: Undisputed Legal/Court Service Department

Under the Federal Fair Credit Reporting Act, you have the right to dispute wrong

 information on your credit report.  Follow this checklist:

  • Write to the credit reporting agency.  Include your name, address, date or birth, and 

Social Security Number So the agency can identify you.

  • Identify the specific debt you are disputing, explain in detail why the information 

Is wrong, and request that the debt be changed or removed.  Include copies of any 

Documentation  that supports your position

  • Send your disputed letter certified mail, return receipt requested.  Send a copy of the 

Letter to the source of the credit reporting agency’s information – this may be a debt 

Collection agency or the original creditor and should be listed on your credit report. 

Keep copies of the letters you send.

In most cases, the credit reporting agency is required to investigate your dispute and 

give you the result in writing, as well as a free copy of your updated credit report.

For information on Serving Legal Papers visit www.undisputedlegal.com.  Open Monday – Friday 8am-8pm.  “When you want it done right the first time” contact undisputedlegal.com

History of the Miranda Rule

By: Undisputed Legal/Court Service Department

  1. Police questioned arrested person at police station for four hours until he confessed. The court was concerned about psychological coercion. Escobedo v. Illinois, 378 U.S. 478 (1964). 
  2. Officers agreed to drop some charges if suspect would confess to kidnaping. Suspect agreed and confessed. He was convicted of kidnapping and rape. Conviction overturned by court. Miranda v. Arizona, 384 U.S. 436 (1966). 

a. Court announces rule requiring people who are taken into custody to be advised of certain rights/warnings: 

    •      that he has the right to remain silent 

  • that any statement he does make can and will be used as evidence against him in a court of law 
  • that he has the right to consult with counsel before answering any questions 
  • that he has the right to have his counsel present during the interrogation 
  • that if he cannot afford an attorney, one will be appointed for him without cost to him, prior to questioning, if he so desires. 
    State v. Creach, 77 Wn.2d 194, 199, 461 P.2d 329 (1969). 

3. Congress promptly enacted a law designed to supersede the Miranda requirement. It was not until 2000, that the United States Supreme Court declared that the rule announced in Miranda is a constitutional rule that cannot be superseded by legislation. Dickerson v. United States, 530 U.S. 428, 120 S. Ct. 2326, 147 L. Ed. 2d 405 (2000). 

C. Miranda Warnings 

1. The actual warnings given need not track the language of Miranda word for word, nor must they parrot the language in State v. Creach. See Florida v. Powell, __ U.S. __, 130 S. Ct. 1195, 1203, 175 L. Ed. 2d 1009 (2010) (“The four warnings Miranda requires are invariable, but this Court has not dictated the words in which the essential information must be conveyed.”). In determining whether police officers adequately conveyed the four warnings, the Supreme Court applies a common sense approach, instead of a legalistic one. “The inquiry is simply whether the warnings reasonably ‘conve[y] to [a suspect] his rights as required by Miranda.” Id. 

a. Most Washington Miranda warnings include additional information for juveniles: 

If you are under the age of 18, anything you say can be used against you in a Juvenile Court prosecution for a juvenile offense and can also be used against you in an adult court criminal prosecution if the juvenile court decides that you are to be tried as an adult. 

These additional juvenile warnings do not invalidate the Miranda warning. The absence of any language indicating that a defendant may appear in adult court without a juvenile court declination hearing does not invalidate a juvenile arrestee’s waiver of the rights. State v. Campos-Cerna, 154 Wn. App. 702, 226 P.3d 185, review denied, 169 Wn.2d 1021 (2010). 

2. The warnings are only necessary when the person asking the questions is a representative of the State or a person acting as an agent of the State. A “representative of the State” includes individuals other than law enforcement officers. See State v. Heritage, 152 Wn.2d 210, 95 P.3d 345 (2004) (park bicycle security officers, city employees who were not commissioned police officers, must give Miranda warnings if conducting custodial interrogation). 

a. A defendant’s Miranda rights can be violated only by the State or a person acting as an agent of the State. State v. Cadena, 74 Wn.2d 185, 190-93, 443 P.2d 826 (1968), overruled on other grounds in State v. Gosby, 85 Wn.2d 758, 767, 539 P.2d 680 (1975); State v. Peerson, 62 Wn. App. 755, 816 P.2d 43 (1991), review denied, 118 Wn.2d 1012 (1992); State v. Brooks, 38 Wn. App. 256, 261-62, 684 P.2d 1371, review denied, 103 Wn.2d 1005 (1984). 

3. The warnings are not required whenever a police officer asks questions. Examples of When Miranda Warnings Are Not Necessary 

  • When administering field sobriety tests to a DUI suspect. Heinemann v. Whitman County, 105 Wn.2d 796, 718 P.2d 789 (1986). 
  • When a suspect has been stopped on reasonable suspicion for an investigation (Terry stop). See, e.g. State v. Heritage, 152 Wn.2d 210, 95 P.3d 345 (2004); State v. Marshall, 47 Wn. App. 322 (1987). 
  • When a suspect is being asked to consent to a search. (But, Miranda warnings will be considered in determining the voluntariness of the consent.) 
  • When suspect comes to the police station on his or her own initiative and the person is free to leave. 
  • Persons voluntarily accompanying police to the police station as material witnesses are not under custodial interrogation if their freedom of action is not curtailed to a degree associated with a formal arrest. See State v. Green, 91 Wn.2d 431, 94 Wn.2d 216, 588 P.2d 1370, 616 P.2d 628 (1980); State v. Grogan, 147 Wn. App. 511, 195 P.3d 1017 (2008),, review granted and case remanded, 168 Wn.2d 1039 (2010), reaff’d on reconsideration, 158 Wn. App. 272, 246 P.3d 196 (2010), review denied, 171 Wn.2d 1006 (2011). 
  • Questioning an individual who has not yet been arrested at his or her workplace or home. 
  • Telephone conversations. State v. Denton, 58 Wn. App. 251, 792 P.2d 537 (1990); Saleh v. Fleming, 512 F.3d 548 (9th Cir. 2008) (call to investigators that was initiated by a suspect who was in jail for an unrelated offense). 
  • Exchanges with barricaded individuals. State v. Pesa, 75 Wn. App. 139, 876 P.2d 963 (1994), review denied, 125 Wn.2d 1015 (1995). 
  • When suspect is taken into custody but no interrogation is anticipated. Note: CrR 3.1/CrRLJ 3.1 warnings must still be given in these circumstances. 
  • When compelling the production of physical evidence such as fingerprints, handwriting samples, blood samples, urine, or line-ups. 
  • Routine inquiries by a guard concerning the security status of prisoners. Kemp v. Ryan, 638 F.3d 1245 (9th Cir.), cert. denied, 132 S. Ct. 553 ( 2011). 

4. Procedural issues.
a. Warnings must be given to suspect in a language that the suspect can understand. Utilize an interpreter when necessary. 

i. Be aware that the use of an uncertified interpreter during a police interrogation may render any statements made by the defendant inadmissible for any purpose, including impeachment. See State v. Gonzalez-Hernandez, 122 Wn. App. 53, 92 P.3d 789 (2004). 

  • When warnings are read to a suspect by an interpreter, the State must demonstrate that the interpreter actually read the warnings correctly. This requirement can be met by the testimony of the interpreter, the testimony of a witness who also understands the language the interpreter spoke, or by a tape recording of the interaction coupled with the in court testimony of a competent interpreter. Cf. State v. Morales, 173 Wn.2d 560, 269 P.3d 263 (2012) (stating rule applicable to the statutorily required implied consent warnings). 
    When using an interpreter, a prudent officer will make every possible effort to videotape or otherwise record the interview. Police, however, are not required to electronically record any custodial interrogations in Washington. See State v. Turner, 145 Wn. App. 899, 187 P.3d 835 (2008), review denied, 165 Wn.2d 1016 (2009). 
  • The Yakima County Prosecuting Attorney’s web site contains a Spanish translation of Miranda and the DUI warnings? These are recordings of the 2009 DUI Arrest Report form. http://www.yakimacounty.us/pa/Miscellaneous/Spanish%2 0Rights.html (last visited (June 13, 2012). 

b. Departmental issued cards forms should be utilized. 

i. Departmental issued cards are updated frequently to comply with current case law and to respond to current challenges. Officers should make sure they have the most current version of the warnings in their possession. Officers should not deviate from the language on the card. See Doody v. Ryan, 649 F.3d 986 (9th Cir.), cert. denied, 132 S. Ct. 414 (2011) (Miranda warnings were “defective” where the officer deviated from the language of the form). 

• The portion of the warnings that is specific to juveniles is not mandatory. A juvenile offender need not be advised that he may be tried in superior court rather than juvenile court. State v. Miller, 165 Wn. App. 385, 267 P.3d 524 (2011), review denied, 173 Wn.2d 1035 (2012). Thus if an officer omits the juvenile language on the grounds that the suspect is over the age of 18, and the suspect is actually younger, this omission will not render the warnings “defective.” 

  1. The warnings need not be administered by the officer who actually engages in the questioning or by an officer from the same department as the officer who engages in the questioning so long as the warnings are given by a law enforcement agent prior to the start of questioning. See, e.g., United States v. Banner, 356 F.3d 478 (2nd Cir. 2004); . United States v. Andaverde, 64 F.3d 1305, 1313 (9th Cir. 1995) (repeat of warnings not required even though suspect had been moved to a different room and faced a new interrogator). 
  2. Warnings must be read slowly enough to be understood. 
  3. Some warning cards, such as the one that appears below, incorporate the CrR 3.1/CrRLJ 3.1 warnings. 

YOUR CONSTITUTIONAL RIGHTS – MIRANDA WARNING 

  1. You have the right to remain silent. 
  2. You have the right at this time to an attorney. 
  3. Anything you say can and will be used against you in a court of law. 
  4. If you are under the age of 18, anything you say can be used against you in a Juvenile Court prosecution 
    for a juvenile offense and can also be used against you in an adult court criminal prosecution if the 
    juvenile court decides that you are to be tried as an adult. 
  5. You have the right to talk to an attorney before answering any questions. 
  6. You have the right to have an attorney present during the questioning. 
  7. If you cannot afford an attorney, one will be appointed for you without cost, if you so desire. 
  8. You can exercise these rights at any time. 
  9. Do you understand these rights? 

Having been informed of these rights, do you wish to talk with me? If the answer is YES, then ask: Have any threats or promises been made to you to convince you to waive your rights? 

c. Warnings may become “stale”. 

i. When resuming interrogation of a suspect who previously waived his or her Miranda rights, it is preferable to re-advise the suspect of his or her Miranda rights. There is, however, no need to rewarn suspects from time to time during a single lengthy interrogation. Berghuis v. Thompkins, ___ U.S. ___, 130 S. Ct. 2250, 2263, 176 L. Ed. 2d 1098 (2010). 

ii. Whether prior warnings have become “stale” is judged under a totality of the circumstances approach. United States v. Rodriquez-Preciado, 399 F.3d 1118, 1128 (9th Cir. 2005). 

iii. Statements made more than 15 hours after advising the suspect of his or her Miranda warnings have been found to be admissible. See, e.g., United States v. Rodriquez-Preciado, 398 F.3d 1118, 1128 (9th Cir. 2005) (interval of 16 hours); Puplampu v. United States, 422 F.2d 870 (9th Cir. 1970) (interval of two days); Maguire v. United States, 396 F.2d 327, 331 (9th Cir. 1968) (interval of three days); State v. Blanchey, 75 Wn.2d 926, 454 P.2d 841 (1969), cert. denied, 396 U.S. 1045 (1970)(interval of four days). 

d. Do not “downplay” the significance of the warnings. 

Miranda warnings were rendered defective by the officer’s deviation from a simple reading of the accurate Miranda waiver form and by the officer’s statements that the warnings were mutually beneficial. See Doody v. Ryan, 

649 F.3d 986 (9th Cir. 2011). The Doody court found the following statements to the 17-year-old suspect to be problematic: “It’s only something for, for your benefit and for our benefit, okay”; “[A]ll it is, is its [sic] something that’s ah for your benefit, as well as four our’s [sic], okay”; “it’s for your benefit, it’s for your protection and for our’s [sic] as well okay?” 

D. Custodial Interrogation 

1. Miranda Rights are only triggered when a suspect is “in custody” and is subjected to “interrogation”. 

Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him “in custody.” It was that sort of coercive environment to which Miranda by its terms was made applicable, and to which it is limited. 

Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 50 L.Ed.2d 714 (1977). 

  • Officers may speak to a person who may be a suspect without implicating Miranda as long as that person remains free to leave if he refuses to cooperate. 
  • Whether the officer has probable cause to arrest a suspect is irrelevant to whether the officer was required to administer Miranda warnings if the suspect’s freedom of movement has not been curtailed to the extent associated with formal arrest. See, e.g., State v. McWatters, 63 Wn. App. 911, 915, 822 P.2d 787, review denied, 119 Wn.2d 1012 (1992). 
    1. There is no court requirement that a suspect be given Miranda warnings when probable cause has been reached if there is no formal arrest. See, e.g., State v. McWatters, 63 Wn. App. 911, 822 P.2d 787, review denied, 119 Wn.2d 1012 (1992). 
    2. An officer may question a suspect without Miranda even after the officer has probable cause, as long as the suspect’s freedom of movement has not been curtailed to the extent associated with formal arrest. See,e.g.,Statev.Short,113Wn.2d35,40-41,775P.2d975 (1989) (explaining that the rule in Washington is coextensive with the rule announced in Berkemer v. McCarty, 468 U. S. 420, 82 L. Ed.2d 317, 335, 104 S. Ct. 3138 (1984), and earlier Washington decisions that utilized a probable cause test are no longer binding); State v. McWatters, 63 Wn. App. 911, 915, 822 P.2d 787, review denied, 119 Wn.2d 1012 (1992). 

iii. There is no requirement that an officer make an arrest as soon as probable cause is present so that constitutional protections are triggered at the earliest possible moment. Statements made pre-arrest in answer to questions are not subject to suppression solely because the judge thinks it was not sporting to provide Miranda warnings prior to the defendant incriminating himself. See Hoffa v. United States, 385 U.S. 293, 310, 87 S. Ct. 408, 17 L. Ed. 2d 374 (1966); United States v. Wynne, 993 F.2d 760 (10th Cir. 1993). 

2. “Custody” means: 

  • The suspect has been placed under arrest, or the suspect’s freedom of action or movement has been curtailed to a degree associated with formal arrest. State v. Harris, 106 Wn.2d 784 (1986). 
  1. A barricaded individual is not in custody for Miranda purposes. State v. Pesa, 75 Wn. App. 139, 876 P.2d 963 (1994), review denied, 125 Wn.2d 1015 (1995). 
  2. A suspect who, due to injuries, is confined to a hospital bed at the time of the interview is not “in custody”. State v. Butler, 165 Wn. App. 820, 269 P.3d 315 (2012). 
  • “In custody” and “seizure” or “seized” (not free to leave) are not the same. 

i. “Seizure” means “not free to leave.” A Terry detention is a seizure, but not an arrest. 

  • A person who is only subjected to a Terry routine investigative stop need not be given Miranda warnings prior to questioning. State v. Phu v. Huynh, 49 Wn. App. 192, 201, 742 P.2d 160 (1987). 
  • Even the fact that a suspect is not “free to leave” during the course of a Terry or investigative stop does not make the encounter comparable to a formal arrest for Miranda purposes. State v. Walton, 67 Wn. App. 127, 130, 834 P.2d 

624 (1992). This is because an investigative encounter, unlike a formal arrest, is not inherently coercive since the detention is presumptively temporary and brief, relatively less “police dominated,” and does not lend itself to deceptive interrogation tactics. State v. Cunningham, 116 Wn. App. 219, 228, 65 P.3d 325 (2003); Walton, 67 Wn. App. At 130. 

C. Miranda warnings are required when a temporary detention ripens into a custodial interrogation. State v. Templeton, 148 Wn.2d 193, 208, 59 P.3d 632 (2002);State v. King, 89 Wn. App. 612, 624-25, 949 P.2d 856 (1998) (“Because a Terry stop is not a custodial interrogation, an officer making a Terry stop need not give the Miranda warnings before asking the detainee to identify himself.”); State v. D.R., 84 Wn. App. 832, 836, 930 P.2d 350, review denied, 132 Wn.2d 1015 (1997) (Miranda safeguards apply as soon as a suspect’s freedom of action is curtailed to a degree associated with formal arrest). 

A temporary detention does not ripen into a custodial interrogation simply because officers have probable cause to arrest the suspect. See State v. Short, 113 Wn.2d 35, 40-41, 775 P.2d 458 (1989); State v. Ustimenko, 137 Wn. App. 109, 151 P.3d 256 (2007). Because there is no constitutional right to be arrested, a suspect cannot complain that officers postponed arresting him in order to obtain more incriminating statements or other evidence against him. Hoffa v. United States, 385 U.S. 293, 310, 87 S. Ct. 408, 417, 17 L. Ed. 2d 374 (1966); United States v. Wynne, 993 F.2d 760, 765 (10th Cir. 1993); Koran v. United States, 469 F.2d 1071, 1071-72 (5th Cir. 1972). 

Unfortunately, many trial court judges erroneously apply the repudiated probable cause test, and a fairly recent Division Two case further muddied the waters. See State v. France, 129 Wn. App. 907, 120 P.3d ( 2005) petition for review granted and remanded for reconsideration in light of State v. Hilliard, 89 Wn.2d 430, 573 P.2d 22 (1977) (Miranda warnings were required because the officer’s had probable cause to make an arrest but delayed doing so to circumvent Miranda requirements). 

If questions asked during a Terry detention elicit incriminating answers, Division II of the Court of Appeals may suppress the statements if Miranda warnings were not 

provided. See State v. France, 129 Wn. App. 907, 120 P.3d (2005) (Miranda warnings were required because the officer’s had probable cause to make an arrest but delayed doing so to circumvent Miranda requirements); State v. France, 121 Wn. App. 394, 88 P.3d 1003 (2004), petition for review granted and remanded for reconsideration in light of State v. Hilliard, 89 Wn.2d 430, 573 P.2d 22 (1977), and State v. Heritage, 152 Wn.2d 210, 214, 95 P.3d 345 (2004), 153 Wn.2d 1008 (2005); contra State v. Heritage, 152 Wn.2d210, 95 P.3d 345 (2004); and State v. Ustimenko, 137 Wn. App. 109, 151 P.3d 256 (2007). 

This passage from State v. Heritage identifies the error in Division II’s analysis: 

Whether a defendant was in custody for Miranda purposes depends on “whether the suspect reasonably supposed his freedom of action was curtailed.” State v. Short, 113 Wn.2d 35, 41, 775 P.2d 458 (1989) (citing State v. Watkins, 53 Wn. App. 264, 274, 766 P.2d 484 (1989)); see Berkemer, 468 U.S. at 442, 104 S. Ct. 3138 (“[T]he only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation.”). It thus is irrelevant whether the police had probable cause to arrest the defendant, Harris, 106 Wn.2d at 789-90, 725 P.2d 975 (citing Berkemer, 468 U.S. at 442, 104 S. Ct. 3138); whether the defendant was a “focus” of the police investigation, Beckwith v. United States, 425 U.S. 341, 347, 96 S. Ct. 1612, 48 L.Ed.2d 1 (1976); whether the officer subjectively believed the suspect was or was not in custody, Berkemer, 468 U.S. at 442, 104 S. Ct. 3138; or even whether the defendant was or was not psychologically intimidated, Sargent, 111 Wn.2d at 649, 762 P.2d 1127. 

State v. Heritage, 114 Wn. App. 591, 598-99, 61 P.3d 1190 (2002), aff’d, 152 Wn.2d 210, 95 P.3d 345 (2004). 

On remand, Division II affirmed the defendant’s conviction. See State v. France, 129 Wn. App. 907, 120 P.3d 654 (2005). 

Division II acknowledged that the “Supreme Court reiterated the test for determining whether police contact was a custodial interrogation stating ‘whether a reasonable person in a suspect’s position would have felt that his or her freedom was curtailed to the degree associated with a formal arrest.’” France, 129 Wn. App. at 910 (quoting State v. Heritage, 152 Wn.2d 210, 218, 95 P.3d 345 (2004). Division II, nonetheless, held that the questioning of France without Miranda warnings was improper as it occurred “after police told him that he could not leave until the matter was cleared up, its duration was open-ended and because police had probable cause to arrest France.” France, 129 Wn. App. At 910-11. Division II’s continued reliance on the existence of probable cause indicates that the court has not completely embraced the modern rule that was reaffirmed in Heritage. 

  1. “In custody” often means the suspect has been cuffed and is in a secure environment, even if not actually arrested. 
  2. “In custody” for purposes of Miranda means freedom of action curtailed to a degree associated with formal arrest. Berkemer v. McCarty, 468 U.S. 420 (1984). 
  3. A person is not placed in the functional equivalent of custody for Miranda purposes simply because that person is the focus of a criminal investigation and is being questioned by authorities. Beckwith v. United States, 425 U.S. 341, 346-48, 48 L. Ed. 2d 1, 96 S. Ct. 1612 (1976). 
    A police officer’s “unarticulated plan has no bearing on the question whether a suspect was ‘in custody’ at a particular time.” State v. Solomon, 114 Wn. App. 781, 790, 60 P.3d 1215 (2002), review denied, 149 Wn.2d 1025 (2003), citing Berkemer v. McCarthy, 468 U.S. 420, 442 (1984). 
    Whether a person has been restrained by a police officer must be determined based upon the interaction between the person and the officer. State v. O’Neill, 148 Wn.2d 564, 574, 62 P.3d 489, 495 (2003) citing State v. Knox, 86 Wn. App. 831, 839, 939 P.2d 710 (1997) (subjective intent of police is irrelevant to the question whether a seizure occurred unless it is conveyed to the defendant). The nature of the officer’s subjective suspicion is generally irrelevant to the question whether a seizure has occurred. O’Neill, 148 Wn.2d at 575.  

c. Suspect is “in custody” when arrested, taken into full custody, or otherwise deprived of his or her freedom of action in a “significant way.” State v. McWatters, 63 Wn. App. 911, 822 P.2d 787, review denied, 119 Wn.2d 1012 (1992). 

  • Incarcerated defendants are only “in custody” for purposes of Miranda when they are subjected to more than just the normal restrictions on freedom incident to incarceration. See State v. Warner, 125 Wn.2d 876, 885, 889 P.2d 479 (1995) (juvenile offender was not “in custody” when he made statements within the context of a sex offender treatment program at DJR’s Maple Lane center); State v. Post, 118 Wn.2d 596, 826 P.2d 172 (1992) (defendant who was on work release not “in custody” when he made statements to a prison psychologist). Accord Howes v. Fields, ___ U.S. ___, 132 S. Ct. 1181, 182 L. Ed. 2d 17 (2012) (an inmate, who is questioned in prison about events in the outside world, is not necessarily “in custody” for Miranda purposes); Maryland v. Shatzer, ___ U.S. ___, 130 S. Ct. 1213, 175 L. Ed. 2d 1045 (2010) (incarceration does not constitute custody for Miranda purposes; a prisoner, who is removed from the general population and taken to a separate location for questioning, is in custody for Miranda purposes). 
  • Factors to be considered in deciding whether someone is “in custody”: 
    1. the place of the interrogation 
    2. whether the interrogation is conducted during normal business hours or is conducted at an odd hour of the night 
    3. the presence of friends, relatives or neutral persons at the interview 
    4. the presence or absence of fingerprinting, photographing, and other booking procedures 
    5. telling a suspect that s/he is under arrest 
    6. the length and mode of the interrogation 
    7. the existence or probable cause to make the arrest 
  • Ferguson, 12 Wash. Prac., Criminal Practice and Procedure § 3309, at 858- 59 (3d ed. 2004). 
  • “Reasonable Person” Standard
    Whether a suspect is “in custody” is an objective inquiry. Two discrete 
    inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was at liberty to terminate the interrogation and leave. For the most part, the “reasonable person” standard ignores the subjective views harbored by the person being questioned. See generally Stansbury v. California, 511 U.S. 318, 323, 114 S. Ct. 1526, 128 L. Ed. 2d 293 (1994). The test, in other words, involves no consideration of the “actual mindset” of the particular suspect subjected to police questioning. Yarborough v. Alvarado, 541 U.S. 652, 667, 124 S. Ct. 2140, 158 L. Ed. 2d 938 (2004). The benefit of the objective custody analysis is that it is “designed to give clear guidance to the police. Alvarado, 541 U.S., at 668. 

Officers are under no duty “to consider . . . contingent psychological factors when deciding when suspects should be advised of their Miranda rights”. Alvarado, 541 U.S., at 668. This means that an individual’s lack of prior exposure to the criminal justice system plays no part in deciding whether an individual is”in custody” for purposes of Miranda. Id. 

i. Youth. The reasonable person standard is modified to a “reasonable child” standard if the child’s age was known to the officer at the time of police questioning, or would have been objectively apparent to a reasonable officer. See J.D.B. v. North Carolina, ___ U.S. ___, 131 S. Ct. 2394, 2406, 180 L. Ed. 2d 310 (2011). “This is not to say that a child’s age will be a determinative, or even a significant, factor in every case.” Id. Merely, this is a recognition that a reasonable child subjected to police questioning will sometimes feel pressured to submit when a reasonable adult would feel free to go. See J.D.B. v. North Carolina, ___ U.S. ___, 131 S. Ct. 2394, 180 L. Ed. 2d 310 (2011). Washington courts applied this rule prior to the issuance of the Supreme Court’s 2011 decision in J.D.B.. See, e.g., State v. D.R., 84 Wn. App. 832, 930 P.2d 350, review denied, 132 Wn.2d 1015 (1997) (teenage student who was questioned by a police officer in an administrative office of the school was “in custody” for Miranda purposes as most children that age would feel they were not free to leave the principal’s office). 

g. Interviews conducted at police stations will be subjected to heightened scrutiny. See,e.g.,UnitedStatesv.Jacobs,431F.3d99,105(3rdCir.2005). Factors that will be considered in determining whether an interview conducted at a police station is “custodial” include the following: 

i. Whether the questioner informed the person being interviewed that they are not under arrest, see, e.g., California v. Beheler, 463 U.S. 1121, 103 S. Ct. 3517, 77 L. Ed. 2d 1275 (1983); Oregon v. Mathiason, 429 U.S. 492, 97 S. Ct. 711, 50 L. Ed. 2d 714 (1977); State v. Grogan, 147 Wn. App. 511, 195 P.3d 1017 (2008), review granted and case remanded, 168 Wn.2d 1039 (2010), reaff’d on reconsideration, 158 Wn. App. 272, 246 P.3d 196 (2010), review denied, 171 Wn.2d 1006 (2011). 

  1. Whether the person being interviewed was allowed to have friends, relatives or neutral persons at the interview, see, e.g. State v. Daniels, 160 Wn.2d 256, 156 P.3d 905 (2007) (defendant was “in custody” where she was questioned for over 90 minutes by two police detectives at the precinct in an 8 foot by 10 foot room and the detectives refused to allow the defendant’s father to accompany her in the interrogation room). 
  2. Whether the person being interviewed voluntarily went to the police station understanding that questioning would ensue, see, e.g., United States v. Jacobs, 431 F.3d 99, 106 (3rd Cir. 2005) ; United States v. Kim, 292 F.3d 969, 974 (9th Cir. 2002). 
  3. Whether the person being interviewed was able to leave the station at the end of the interview or whether they were arrested, see, e.g., Slwooko v. State, 139 P.3d 593, 600 (Alaska Ct. App. 2006) (“the fact that the police arrest a suspect following an interview may shed light on otherwise ambiguous facets of the police officers’ interaction with the suspect. But the fact that the police decide to arrest a person after the person has confessed to a serious crime is, of itself, unremarkable.”); Commonwealth v. Barnes, 20 Mass. App. Ct. 748, 482 N.E.2d 865 (1985); Roman v. State, 475 So.2d 1228, 1231-32 (Florida 1985) (the mere fact that an arrest follows a confession does not convert what theretofore had been a noncustodial situtation into a custodial one); State v. Grogan, 147 Wn. App. 511, 195 P.3d 1017 (2008), review granted and case remanded, 168 Wn.2d 1039 (2010), reaff’d on reconsideration, 158 Wn. App. 272, 246 P.3d 196 (2010), review denied, 171 Wn.2d 1006 (2011) (defendant allowed to leave at the end of the interview). 
  4. Whether the person being interviewed was transported to the station by a police officer or whether they drove themself to the station, see, e.g., State v. Pinder, 250 Con.. 385, 736 A.2d 857, 874 (1999) (noting that defendant had been given the option or riding in his own car or with the state police). 
  5. Whether the door to the interview room was locked and/or whether there were locked doors between the person being interviewed and the police station’s entry, see, e.g. State v. Grogan, 147 Wn. App. 511, 195 P.3d 1017 (2008), review granted and case remanded, 168 Wn.2d 1039 (2010), reaff’d on reconsideration, 158 Wn. App. 272, 246 P.3d 196 (2010), review denied, 171 Wn.2d 1006 (2011) (noting defendant did not need a door key or police escort to leave the interview room); Slwooko v. State, 139 P.3d 593, 598-99 (Alaska Ct. App. 2006). 
  1. How long the interview lasted. Compare State v. Daniels, 160 Wn.2d 256, 156 P.3d 905 (2007) (defendant was “in custody” where she was questioned for over 90 minutes by two police detectives at the precinct in an 8 foot by 10 foot room and the detectives refused to allow the defendant’s father to accompany her in the interrogation room) with Slwooko v. State, 139 P.3d 593, 597 (Alaska Ct. App. 2006) (suspect was not in custody where the station house interview lasted less than 30 minutes); Roman v. State, 475 So.2d 1228, 1231 (Florida 1985) (where questioning lasts less than 30 minutes, the length of the contact favors a finding that a reasonable person would assume that they were not in custody). But see State v. Pinder, 250 Conn. 385, 736 A.2d 857 (1999) (in light of the repeated reminders that the defendant was free to leave, the fact that the defendant had been at the polygraph unit for approximately 2 Ω hours doe not necessitate the conclusion that a reasonable person would believe that he could not leave). 
  2. Whether the questioning is non-confrontational and polite or accusatorial in nature. Slwooko v. State, 139 P.3d 593, 597, 599 (Alaska Ct. App. 2006). 

h. Interviews conducted in a suspect’s home may, if imbued with a “police- dominated atmosphere”, be considered custodial for purposes of Miranda warnings. Factors that courts will consider in deciding whether a police- dominated atmosphere exists include: 

  1. the number of law enforcement personnel 
  2. the number of law enforcement agencies represented 
  3. whether the law enforcement representatives are armed 
  4. whether the suspect was at any point restrained, either by physical force or by threats; 
  5. whether the suspect was isolated from others 
  6. whether the suspect was informed that he was free to leave or terminate the interview, and the context in which any such statements were made. 

United States v. Craighead, 539 F.3d 1073 (9th Cir. 2008) (in-home interview was “custodial” for Miranda purposes where 8 armed officers, from 3 different agencies entered the suspect’s home, it was unclear whether the officer who informed the suspect that his statements were voluntary and that he was free to leave spoke for all three agencies, the suspect was escorted to a back storage room and one officer leaned with his back against the door in such a way as to block the suspect’s exit). 

3. “Interrogation” involves express questioning, as well as all words or actions on the part of the police, other than those attendant to arrest and custody, that are likely to elicit an incriminating response. Rhode Island v. Innis, 446 U.S. 291, 301, 64 L. Ed. 2d 297, 100 S. Ct. 1682 (1980); State v. Johnson, 48 Wn. App. 681, 739 P.2d 1209 (1987). 

  • When not dealing with express questioning, the focus is primarily upon the perception of the suspect, rather than the intent of the police. Rhode Island v. Innis, 446 U.S. 291, 301, 64 L. Ed. 2d 297, 100 S. Ct. 1682 (1980). 
    1. The standard is an objective one, focusing on what the officer knows or ought to know will be the result of his words and acts. State v. Sargent, 111 Wn.2d 641, 650, 762 P.2d 1127 (1988). In determining whether the officer should know what impact his words or acts will have, the focus is on the perceptions of the suspect, rather than on the intent of the police. State v. Wilson, 144 Wn. App. 166, 181 P.3d 887 (2008). 
    2. Declaratory statements intended to affect the personality and psychological makeup of the suspect may constitute interrogation. See, e.g., Brewer v. Williams, 430 U.S. 387, 97 S. Ct. 1232, 51 L. Ed. 2d 424 (1977) (“Christian burial speech”); State v. Wilson, 144 Wn. App. 166, 181 P.3d 887 (2008) (“death notification” to woman who was in custody for stabbing her husband). 
  • Case law examples of interrogative questions and acts: 
    1. Questions as “did you do it?” and “come to the truth”, are interrogative in nature. State v. Sargent, 111 Wn.2d 641, 650, 762 P.2d 1127 (1988). 
    2. Police officer’s general statement in presence of arrestee that “God forbid a handicap child might find the murder weapon” was not the functional equivalent of interrogation. Rhode Island v. Innis, 446 U.S. 291, 64 L. Ed. 2d 297, 100 S. Ct. 1682 (1980). 
  • Officers’ statements to suspect that they “need[ed] to adhere to the search warrant and continue the sexual assault kit collection procedures” was not the functional equivalent of interrogation. State v. Chapple, 103 Wn. App. 299, 12 P.3d 153 (2000) (unpublished portion of opinion). 
  • Officer’s informing a woman who was in custody for stabbing her husband that her husband had died was the functional equivalent of interrogation. The suspect’s subsequent statement that “‘I didn’t mean to kill him. I didn’t mean to stab him”, was inadmissible even though the officer’s death notification was not intended to provoke a response. State v. Wilson, 144 Wn. App. 166, 181 P.3d 887 (2008). 
  • Routine questions asked during the booking process are not interrogation; general questions regarding someone’s background are not interrogation; and questions normally attendant to an arrest are not interrogation. Rhode Island v. Innis, 446 U.S. 291, 301, 64 L. Ed. 2d 297, 100 S. Ct. 1682 (1980); State v. Bradley, 105 Wn.2d 898, 903-04, 719 P.2d 546 (1986); State v. McIntyre, 39 Wn.App. 1, 6, 691 P.2d 587 (1984). But see State v. Denney, 152 Wn. App. 665, 218 P.3d 633 (2009) (routine jail booking questions constitute “interrogation” for which the Miranda warnings are required if the questions are reasonably likely to produce an incriminating response; a standard booking question regarding recent drug use is not shielded from Miranda requirements when the defendant is arrested for a drug offense). 
  • Routine inquiries by a guard concerning the security status of prisoners are not interrogation. Kemp v. Ryan, 638 F.3d 1245 (9th Cir.), cert. denied, 132 S. Ct. 414 (2011). 
  • Officer’s negotiations with barricaded individual not the functional equivalent of interrogation. State v. Pesa, 75 Wn. App. 139, 876 P.2d 963 (1994), review denied, 125 Wn.2d 1015 (1995). 
  • An officer’s request that a suspect hand over or reveal the location of incriminating evidence can elicit a nonverbal act that may be testimonial in nature. If the request is made after the suspect is in custody, the suspect’s acts will be suppressed if performed in the absence of Miranda warnings. The produced evidence, however, will still be admissible if the suspect’s actions were not the product of coercion. State v. Wethered, 110 Wn.2d 466, 755 P.2d 797 (1985). 

E. Invocation of Rights 

  1. A suspect may knowingly, voluntarily and intelligently waive his or her rights under Miranda. 
  2. A suspect who has waived his or her rights under Miranda may change his or her mind at any time. 
  3. Once a suspect requests counsel, police must cease questioning the suspect and cannot try again until counsel has been made available or the suspect himself reinitiates conversation. Edwards v. Arizona, 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981). This request must, however, be made to an officer during a custodial encounter. See Bobby v. Dixon, ___ U.S. ___, 132 S. Ct. 26, 29, 181 L. Ed. 2d 328 (2011) (a person’s refusal to answer questions without a lawyer present during a non-custodial interview, does not prevent an officer from conducting a custodial interrogation four days later; “And this Court has “never held that a person can invoke his Miranda rights anticipatorily, in a context other than “custodial interrogation.’ McNeil v. Wisconsin, 501 U.S. 171, 182, n. 3, 111 S. Ct. 2204, 115 L. Ed. 2d 158 (1991); see also Montejo v. Louisiana, 556 U.S. 778, ___, 129 S. Ct. 2079, 173 L. Ed. 2d 955 (2009) (“If the defendant is not in custody then [Miranda and its progeny] do not apply”).”); Montejo v. Louisiana, ___ U.S. ___, 129 S. Ct. 2079, 173 L. Ed. 2d 955 (2009) ( A request for counsel at arraignment or first appearance, however, does not prevent officers from contacting the defendant to request an interview. ) 

a. Police may not reinitiate questioning without counsel being present even if the suspect has consulted with an attorney in the interim. Minnick v. Mississippi, 498 U.S. 146, 111 S. Ct. 486, 112 L. Ed. 2d 489 (1990). 

  1. An exception to this rule clearly applies where there is a break in custody of at least two weeks in length. See Maryland v. Shatzer, ___ U.S. ___, 130 S. Ct. 1213, 175 L. Ed. 2d 1045 (2010). A break in custody can include incarceration in the general prison population. Id. 
  2. A break in custody that is contrived, pretextual, or made in bad faith may be insufficient to remove the protections of the Edwards rule. State v. Jones, 102 Wn. App. 89, 96-97, 6 P.3d 58 (2000), review denied, 142 Wn.2d 1018 (2001). 

ii. Edwards and Roberson protections also may not apply to a defendant who has already been tried and convicted of the crime for which he was taken into custody and with respect to which he asserted a right to counsel. See, e.g., Maryland v. Shatzer, ___ U.S. ___, 130 S. Ct. 1213, 175 L. Ed. 2d 1045 (2010); United States v. Arrington, 215 

F.3d 855 (8th Cir. 2000) (Edwards protections do not continue indefinitely just because a person remains in custody). 

b. After a suspect invokes his or her right to counsel, police may not contact the suspect regarding a separate investigation. Arizona v. Roberson, 486 U.S. 675, 108 S. Ct. 2093, 100 L. Ed. 2d 704 (1988). 

i. The “break in custody” exception announced in Maryland v. Shatzer, ___ U.S. ___, 130 S. Ct. 1213, 175 L. Ed. 2d 1045 (2010), will also apply in the different investigation context. 

c. Suspect’s request for counsel must be unequivocal. Davis v. United States, 512 U.S. 452, 458-59, 129 L. Ed. 2d 362, 114 S. Ct. 2350 (1994). “Although a suspect need not speak with the discrimination of an Oxford don, he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” Id. A request is equivocal if further questions are needed to determine if the suspect has made a request. State v. Smith, 34 Wn. App. 405, 408-09, 661 P.2d 1001 (1983). “Context”, however, will not transform an unambiguous invocation of the right to counsel into open-ended ambiguity. State v. Nysta, No. 65774-7-I, ___ Wn.2d ___, ___ P.3d ___ (May 7, 2012). 

An officer who is confronted with an equivocal or ambiguous request for counsel may simply proceed with questioning. Davis v. United States, 512 U.S. 452, 129 L. Ed. 2d 362, 114 S. Ct. 2350 (1994); State v. Radcliffe, 164 Wn.2d 900, 194 P.3d 250 (2008) (repudiating the rule adopted in State v. Robtoy, 98 Wn.2d 30, 653 P.2d 284 (1982). 

Cases have established that the following constitutes ambiguous requests for counsel: 

  • Suspect’s statement “maybe I should talk to a lawyer,” was ambiguous, and hence was not a request for counsel. Davis v. United States, 512 U.S. 452, 458-59, 129 L. Ed. 2d 362, 114 S. Ct. 2350 (1994). 
  • Suspect’s statement that he did not know how much trouble he was in and did not know if he needed a lawyer was an equivocal request for an attorney. State v. Radcliffe, 164 Wn.2d 900, 194 P.3d 250 (2008). 
  • A suspect’s statement that he might want to talk to a lawyer constitutes an equivocal request for an attorney. United States v. Fouche, 776 F.2d 1398, 1405 (9th Cir. 1985). 
    29 
  • Suspect’s question, “[b]ut excuse me, if I am right, I can have a lawyer present through all of this, right?, was an equivocal request for an attorney. United States v. Younger, 398 F. 3d 1179, 1187-88 (9th Cir. 2005). 
  • An inquiry whether the police officer thinks that the interrogated person in custody needs an attorney does not constitute even an equivocal request for a lawyer. Norman v. Ducharme, 871 F.2d 1483, 1486 (9th Cir. 1989). 
  • “Do I need a lawyer?” or “do you think I need a lawyer” does not rise to the level of even an equivocal request for an attorney. United States v. Ogbuehi, 18 F.3d 807, 814 (9th Cir. 1994). 
  • “What time will I see a lawyer?” not an unambiguous request for counsel. United States v. Doe, 170 F.3d 1162, 1166 (9th Cir. 1999). 
  • “Maybe [I] ought to see an attorney” not a clear and unambiguous request for counsel. United States v. Doe, 60 F.3d 544, 546 (9th Cir. 1995). 
  • “Go ahead and run the lawyers” not a clear and unambiguous request for counsel. Mincey v. Head, 206 F.3d 1106, 1132 (11th Cir. 2000), cert. denied, 532 U.S. 926 (2001). 
    On the other hand, the following requests were found to be unambiguous: 
  • “Can I talk to a lawyer? At this point, I think maybe you’re looking at me as a suspect, and I should talk to a lawyer. Are you looking at me as a suspect?” was an unambiguous request for counsel. Smith v. Endell, 860 F.2d 1528, 1529 (9th Cir. 1988). 
  • Suspect’s questions “(1) Can I get an attorney right now, man? (2) You can have attorney right now? and (3) Well, like right now you got one?” constituted an unambiguous request. Alvarez v. Gomez, 185 F.3d 995, 998 (9th Cir. 1999). 
  • “My attorney does not want me to talk to you” in tandem with a refusal to sign written waiver of right to attorney form was an unambiguous request for counsel. United States v. Cheely, 36 F.3d 1439, 1448 (9th Cir. 1994). 
  • A suspect’s statement during a custodial interrogation that “shit man I gotta talk to my lawyer,” is an unequivocal invocation by the suspect of his right to an attorney. State v. Nysta, No. 65774-7-I, ___ Wn.2d 
    ___, ___ P.3d ___ (May 7, 2012). 

The case law is inconsistent on whether the phrase “I think” will render a request for counsel equivocal. Compare Shedelbower v. Estelle, 885 F.2d 570, 571 (9th Cir. 1989) ( the statement “you” know, I’m scared now. I think I should call an attorney,” was a valid invocation of the suspect’s right to an attorney); Cannady v. Dugger, 931 F.2d 752, 754 (11th Cir. 1991) (“I think I should call my lawyer” was an unequivocal request for counsel); United States v. Perkins, 608 F.2d 1064, 1066 (5th Cir. 1979) (“I think I want to talk to a lawyer” was an unequivocal request for counsel) with Diaz v. Senkowski, 76 F.3d 61, 63 (2d Cir. 1996) (suspect’s statement “do you think I need a lawyer” was ambiguous within the meaning of Davis); Burket v. Angelone, 208 F.3d 172, 198 (4th Cir. 2000) (“I think I need a lawyer” does not constitute an unequivocal request for counsel). 

d. The Fifth Amendment right to counsel belongs to the suspect. It may not be asserted on the suspect’s behalf by another. An officer engaged in a non- custodial interview with a suspect or in a post-Miranda waiver interview with a suspect has no obligation to terminate the interview solely because an attorney who purports to represent the suspect appears at the station house and asks to speak with his or her client. See Moran v. Burbine, 475 U.S. 412, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986); State v. Earls, 116 Wn.2d 364, 805 P.2d 211 (1991). 

4. Once a suspect expresses a desire to remain silent, the police must scrupulously honor the request and cease questioning. Police may, however, after the passage of a significant period of time and the provision of a fresh set of Miranda warnings, reapproach the defendant and resume questioning. See, e.g., Michigan v. Mosley, 423 U.S. 96, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975). A shorter break may be sufficient if, after fresh Miranda warnings, officers limit their questioning to a different crime than the one at issue when the suspect initially expressed a desire to remain silent. State v. Brown, 158 Wn. App. 49, 240 P.3d 1175 (2010), review denied, 171 Wn.2d 1006 (2011) (two hour break). 

a. Suspect’s invocation of the right to remain silent must be unequivocal. United States v. Burns, 276 F.3d 439, 441-42 (8th Cir. 2002); Simmons v. Bowersox, 235 F.3d 1124, 1131 (8th Cir. 2001), cert. denied, 122 S. Ct. 280 (2001); cf. Davis v. United States, 512 U.S. 452, 458-59, 129 L. Ed. 2d 362, 114 S. Ct. 2350 (1994) (right to counsel). 

A significant body of federal law indicates that an officer who is confronted with an equivocal or ambiguous request to remain silent may simply proceed with questioning. See, e.g.,Simmons v. Bowersox, 235 F.3d 1124, 1131 (8th Cir. 2001), cert. denied, 122 S. Ct. 280 (2001); Bui v. DiPaolo, 170 F.3d 232, 239 (1st Cir. 1999), cert. denied, 529 U.S. 1086 (2000); United States v. 

Mills, 122 F.3d 346, 350-51 (7th Cir.) (citing United States v. Banks, 78 F.3d 1190, 1196-97 (7th Cir. 1996)), cert. denied, 118 S. Ct. 637 (1997); Medina v. Singletary, 59 F.3d 1095, 1100-01 (11th Cir. 1995), cert. denied, 517 U.S. 1247 (1996). 

Mere silence in the face of questioning does not constitute an unambiguous invocation of the right to remain silent. In such cases, an officer may continue to question the suspect until he or she invokes. See Berghuis v. Thompkins, ___ U.S. ___, 130 S. Ct. 2250, 176 L. Ed. 2d 1098 (2010)(suspect, who after receiving Miranda warnings, never stated that he wanted to remain silent or that he did not want to talk with the police, and who was largely silent during the 3-hour interrogation, but near the end, answered “yes” when asked if he prayed to God to forgive him for the shooting, had not invoked his Fifth Amendment rights; statement is admissible). 

Case law has held that the following are examples of equivocal assertions of the right to remain silent: 

  • A suspect’s reply of “Nope” to the investigating officer’s inquiry about making a formal statement was not an unequivocal assertion of the suspect’s right to remain silent which required an end to further questioning. James v. Marshall, 322 F.3d 103 (1st Cir. 2003). 
  • A suspect’s refusal to answer a question after agreeing to answer certain specific questions was not a clear and unequivocal assertion of his right to remain silent to subsequent questions. United States v. Hurst, 228 F.3d 751 (6th Cir. 2000). 
  • “I just don’t think that I should say anything” and “I need somebody that I can talk to” do not constitute an unequivocal request to remain silent. Burket v. Angelone, 208 F.3d 172 (4th Cir.), cert. denied, 530 U.S. 1283 (2000). 

  • Silence in response to certain question not an unequivocal assertion of right to remain silent. United States v. Mikell, 102 F.3d 470, 476- 77 (11th Cir.1996); State v. Hodges, 118 Wn. App. 668, 77 P.3d 375 (2003). 
  • “I refuse to sign that [the waiver of rights form] but I’m willing to talk to you” not an unequivocal assertion of the right to remain silent. State v. Parra, 96 Wn. App. 95, 99-100, 977 P.2d 1272, review denied, 139 Wn.2d 1010 (1999); accord State v. Manchester, 57 Wn. App. 765, 771, 790 P.2d 217, review denied, 115 Wn.2d 1019 (1990). 
  • “I don’t want to talk about it” and “I’d rather not talk about it” are not unequivocal invocations of right to silence. Owen v. State, 862 So. 2d 687, 696-98 (Fla. 2003), cert. denied, 543 U.S. 986(2004). 
  • “Just take me to jail” is not unequivocal invocation of right to silence. Ford v. State, 801 So. 2d 318, 319-20 (Fla. 1st DCA 2001), review denied, 821 So. 2d 295 (Fla. 2002), cert. denied, 537 U.S. 1010 (2002). 
  • Act of tearing up waiver form is not unequivocal invocation of right to silence. Sotolongo v. State, 787 So. 2d 915 (Fla. 3d DCA 2001), review denied, 816 So. 2d 129 (Fla. 2002). 
  • “I can’t say more than that. I need to rest.” was not an unambiguous invocation of the right to remain silent. Dowthitt v. Texas, 931 S.W.2d 244, 257 (Tex. Crim. App. 1996) 
    Case law establishes that the following are examples of unequivocal assertions of the right to remain silent: 
    • 
  • An arrested individual’s statement to a police officer that “I plead the Fifth” was an unequivocal invocation of the right to remain silent. Anderson v. Terhune, 516 F.3d 781 (9th Cir. 2008). 
  • A suspect’s statement that “I have nothing else to say” or “I have nothing further to add” was a sufficiently clear invocation of his right to remain silent. United States v. Reid, 211 F. Supp. 2d 366, 372 (D. Mass.2002);”);Peoplev.Douglas,8A.D.3d980,778N.Y.S.2d622, 623 (N.Y. App. Div. 2004)), appeal denied, 818 N.E.2d 675, 3 N.Y.3d 705, 785 N.Y.S.2d 33 (N.Y. 2004). 
  • “I don’t want to talk to you m—– – f——” is a sufficiently clear invocation of the suspect’s right to remain silent. United States v. Stewart, 51 F. Supp. 2d 1136, 1142-45 (D. Kan. 1999), reconsidered in part, 51 F. Supp. 2d 1147, 1162 (D. Kan. 1999), affirmed, 215 F.3d 1338 (10th Cir. 2000) (unpublished opinion) 
  • Suspect’s statement, “I don’t want to tell you guys anything to say about me in court,” is an unambiguous and unequivocal invocation of right to remain silent. State v. Day, 619 N.W.2d 745, 750 (Minn. 2000). 

Sixteen year old suspect’s statement “I don’t want to talk about it. I don’t want to remember it . . . .” was an unequivocal assertion of her right to remain silent. McGraw v. Holland, 257 F.3d 513 (6th Cir. 2001). 

5. The Ninth Circuit held that a suspect can partially invoke his right to remain silent by refusing to talk on tape. In Arnold v. Runnels, 421 F.3d 859 (9th Cir. 2005), the defendant orally waived his Miranda rights, but stated that he did not wish to talk on tape. Once the tape-recorder was turned on, the defendant’s only response to questions was “no comment.” The defendant’s actions were held to be an unequivocal assertion of his right not to speak on tape. The tape recording was, therefore, suppressed. 

F. Public Safety Exception to Miranda 

In New York v. Quarles, 467 U.S. 649, 656, 104 S. Ct. 2626, 81 L. Ed. 2d 550 (1984), the Supreme Court, in response to concerns for police and public safety, created a “public safety exception” to the Miranda requirement. In Quarles, the Court concluded “that the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination.” In adopting the rule, the Court indicated that it 

declined to place officers . . . in the untenable position of having to consider, often in a matter of seconds, whether it best serves society for them to ask the necessary questions without the Miranda warnings and render whatever probative evidence they uncover inadmissible, or for them to give the warnings in order to preserve the admissibility of evidence they might uncover but possibly damage or destroy their ability to . . . neutralize the volatile situation confronting them. 

Qualres. At 657-58. 

To determine whether the public safety exception applies, the court asks whether there was “an objectively reasonable need to protect the police or the public from any immediate danger . . . .” Quarles, 467 U.S. at 659. 

Case law provides the following examples of when the public safety exception was appropriately invoked: 

  • Police properly questioned a defendant who was arrested in supermarket about the location of a loaded firearm that the police believed the defendant had discarded where a third party could gain access. New York v. Quarles, 467 U.S. 649, 656, 104 S. Ct. 2626, 81 L. Ed. 2d 550 (1984). 
  • SWAT negotiators properly dispensed with Miranda warnings while attempting to convince a barricaded individual who had shot and killed two people, one of whom was a police officer, to voluntarily surrender. State v. Finch, 137 Wn.2d 792, 830, 975 P.2d 967, cert. denied, 528 U.S. 922 (1999). 
    34 
  • Officer responding to a report of a stabbing, who heard a scream inside the house prior to making an emergency entry, properly asked where the stabbing victim was located prior to administering Miranda warnings. State v. Richmond, 65 Wn. App. 541, 545-46, 828 P.2d 1180 (1992). 
  • Police officer’s pre-Miranda question to arrested person regarding whether there is anything else in his car that might hurt the officer, that was asked after the officer discovered an unloaded .38 caliber revolver under the front seat. United States v. Liddell, 517 F.3d 1007 (8th Cir. 2008). 
    Other Eighth Circuit cases recognize that the risk of police officers being injured by the mishandling of unknown firearms or drug paraphernalia provides a sufficient public safety basis to ask a suspect who has been arrested and secured whether there are weapons or contraband in a car or apartment that the police are about to search. See United States v. Luker, 395 F.3d 830, 832 (8th Cir.), cert. denied, 546 U.S. 831 (2005) (public safety exception applied to post-arrest question whether there was anything in intoxicated driver’s car the police should know about); United States v. Williams, 181 F.3d 945, 953-54 (8th Cir. 1999) (public safety exception applied to post-arrest question, “is there anything we need to be aware of” in the suspect’s apartment, because the police “could not have known whether other hazardous weapons were present . . . that could cause them harm if they happened upon them unexpectedly or mishandled them in some way”). 
    The Eighth Circuit’s position is consistent with that of most other federal circuits. See United States v. Shea, 150 F.3d 44, 48 (1st Cir. 1998) (pre-Miranda question asking arrested defendant whether he had any weapons fell within the public-safety exception); United States v. Webster, 162 F.3d 308, 332 (5th Cir. 1998) (“The police acted constitutionally when they asked [the defendant] whether he had any needles in his pockets that could injure them during their pat down; such questioning, needed to protect the officers, does not constitute interrogation under Miranda.”);United States v. Edwards, 885 F.2d 377, 384 (7th Cir. 1989) (public-safety exception applied to pre-Miranda question asking arrested defendant whether he had a gun); United States v. Carrillo, 16 F.3d 1046, 1049-50 (9th Cir. 1994) (pre-Miranda question asking arrested defendant whether he had any needles on him was within the public- safety exception); United States v. Lackey, 334 F.3d 1224, 1227-28 (10th Cir.), cert. denied, 540 U.S. 997 (2003) (public safety exception applied to post-arrest, pre- search question of “Do you have any guns or sharp objects on you?” ). 
    Not every circuit, however, agrees that such questions fall within the public-safety exception. See, e.g., United States v. Williams, 483 F.3d 425, 428 (6th Cir. 2007). 

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Fifth Amendment Right To Counsel – Know Your Rights

By: Undisputed Legal/Court Service Department

Constitutional Requirement

1. No person shall be compelled in any criminal case to be a witness against him/herself. (Fifth Amendment, U.S. Constitution)

  1. Right must be asserted to take effect.
  2. Provision prevents the defendant from being called as a witness for the prosecution in a criminal case.
  3. Provision prevents the prosecution or any witness from commenting upon the defendant’s failure to take the stand or to answer questions.
  4. Limited to testimonial evidence (oral or written).

• Protects an individual from being forced to decrypt hard drive contents. United States v. Doe (In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011), 670 F.3d 1335 (11th Cir. 2012).

2. No person shall be compelled in any criminal case to give evidence against himself, or be twice put in jeopardy for the same offense. (Wash. Const. art. I, § 9).

  1. State constitution is co-extensive with the federal constitution. See State v. Russell, 125 Wn.2d 24, 59-62, 882 P.2d 747 (1994) (refusing to extend greater protection through Const. Art. 1, § 9 than that provided by the federal constitution to the use of un-Mirandized statements); State v. Earls, 116 Wn.2d 364, 374-75, 805 P.2d 211 (1991). (“[R]esort to the Gunwall analysis is unnecessary because this court has already held that the protection of article 1, section 9 is coextensive with, not broader than, the protection of the Fifth Amendment.”); Dutil v. State, 93 Wn.2d 84, 606 P.2d 269 (1980) (state constitution provides no greater protection for minors waiving their right to remain silent than is provided by the Fifth Amendment); State v. Moore, 79 Wn.2d 51, 57, 483 P.2d 630 (1971) (“The Washington constitutional provision against self-incrimination envisions the same guarantee as that provided in the federal constitution. There is no compelling justification for its expansion.”).
  2. With respect to Miranda, Const. art. I, § 9 is arguably less protective than the Fifth Amendment. The Washington Supreme Court stated in numerous cases that it was unnecessary to advise a suspect that she was not obligated to answer questions. See, e.g., State v. Brownlow, 89 Wash. 582, 154 P. 1099 (1916); State v. Boyer, 61 Wn.2d 484, 486-87, 378 P.2d 936 (1963). In fact, less than a year before the United States Supreme Court decided Miranda, the Court indicated in State v. Craig, 67 Wn.2d 77, 83, 406 P.2d 599 (1965), that:

[E]veryone suspected of crime or charged therewith has the right to voluntarily speak or act, or refrain from doing so, without having sections of the state and federal constitutions recited to him before he can exercise that right…. Where such voluntary act tends to link him with [a] crime …, should we disregard his freedom to speak and to write in order to save him, the wrongdoer, from paying for his crime and forget his victims entirely? If so, we are guilty of coddling the criminal and are, in effect abrogating the laws enacted for the protection of society in its person and property.

3. Fifth Amendment right can take effect in one of two ways:

  1. Suspect states, “I do not wish to answer any questions without my lawyer”
  2. Suspect is taken into custody and interrogated by police officer.

i. Once a person is taken “into custody” (advised they are under arrest and/or have their freedom of movement curtailed to the same extent as that normally associated with formal arrest) and “interrogated”, any statement is presumed to be involuntary.

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Driving with a Suspended or Revoked Drivers License?

New York Motor Vehicle Laws

By: Undisputed Legal/Court Service Department

It is a criminal violation to drive while your license is suspended or revoked, and there are mandatory fines from $200 to $5,000. You can face mandatory imprisonment or probation. The vehicle being driven could be seized and forfeited. More severe penalties apply to drivers who drive while intoxicated or impaired by alcohol or drugs while their license or privilege are already under suspension or revocation for a previous 

alcohol or drug-related incident. Drivers with 10 or more suspensions for failure to answer traffic tickets or pay fines are also subject to severe penalties. Drivers with 20 or more suspensions for failure to answer tickets or pay fines face a criminal charge, even if you were not driving when arrested. 

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Called Off The Engagement, Do I Have To Give Back The Ring?

If an engagement is broken off, what happens to the engagement ring? Normally it should be returned to the person who gave it. The ring usually is viewed as a gift given in anticipation of marriage. If the marriage will not take place, the condition upon which the gift was given has been removed, so the gift should be returned.

If the parties have given each other presents during their relationship such as birthday presents or holiday presents those gifts normally do not have to be returned. Those presents usually would be viewed as unconditional gifts, such as those between friends. Once the gift is given, the recipient is entitled to keep it, unless the person making the gift placed a clear condition when presenting the gift.

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Calculation Of Spousal Support, What You Need To Know

While your divorce case is going on, if your spouse earns more than you, you may also ask the Judge to award you temporary financial support, which your spouse will pay to you until the divorce becomes finalized. This type of support is called “temporary” or “pendente lite” maintenance.

Even if your spouse earns more than you, the Judge will not order your spouse to pay temporary maintenance if they would not be able to support themselves while making payments.

If you are seeking temporary maintenance and child support, the amount you receive in temporary maintenance gets subtracted from your spouse’s income and added to your income before child support is calculated.