Resumption of Interrogation

Resumption of interrogation after invocation of the right to counsel

• When an individual in custody invokes his Fifth Amendment right to counsel, all interrogation must cease until an attorney is present, and the individual must be afforded the opportunity to speak with the attorney and have an attorney present at any further questioning. Miranda v. Arizona, 384 U.S. 436, 474 (1966), reh’g denied. However, if the individual initiates “further communication, exchanges, or conversations” with law enforcement, then the individual may be further interrogated without counsel present. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981), reh’g denied.

Hartman v. State, 988 N.E.2d 785, 788 (Ind. 2013)

• When one who is subject to custodial interrogation requests the assistance of counsel, all questioning must immediately cease and interrogation can be resumed only when the accused initiates a communication with police, and when it is apparent that he knowingly and intelligently waived his right to counsel.

Mendoza-Vargas v. State, 974 N.E.2d 590, 594 (Ind. Ct. App. 2012)(citing Moore v. State, 498 N.E.2d 1, 8 (Ind. 1986))

See Bean v. State, 973 N.E.2d 35, 44-45 (Ind. Ct. App. 2012), trans. denied(citing Smith v. Illinois, 469 U.S. 91, 95 (1984))(“Once a suspect invokes the right to counsel, further interrogation is allowed only when it is shown that the accused initiated further discussions and knowingly and intelligently waived the right to counsel he or she had earlier invoked.”)

See also Hendricks v. State, 897 N.E.2d 1208, 1215 (Ind. Ct. App. 2008)(“When a suspect asserts the right to counsel during custodial questioning, the police must stop the interrogation until counsel is present or the suspect reinitiates communication with police and voluntarily waives the right to counsel.”)

• While an accused’s knowing and voluntary resumption of dialogue with police following being re-read such warning is not constitutionally infirm when the accused himself reinitiates conversation, this is not so when conversation is reinitiated by police.

Hartman v. State, 988 N.E.2d 785, 790 (Ind. 2013)

See Edwards v. Arizona, 451 U.S. 477, 484-85 (1981), reh’g denied(emphasis added)(“[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.”)

See also Hendricks v. State, 897 N.E.2d 1208, 1215 (Ind. Ct. App. 2008)(citing Storey v. State, 830 N.E.2d 1011, 1017 (Ind. Ct. App. 2005))(“[A]fter the Fifth Amendment right to counsel is invoked, a waiver in response to police-initiated interrogation is not sufficiently voluntary to meet that amendment’s mandate.”)

Interpretations of initiating further communication, exchanges, or conversations

• There can be no doubt in this case that in asking, “Well, what is going to happen to me now?”, respondent “initiated” further conversation in the ordinary dictionary sense of that word. While we doubt that it would be desirable to build a superstructure of legal refinements around the word “initiate” in this context, there are undoubtedly situations where a bare inquiry by either a defendant or by a police officer should not be held to “initiate” any conversation or dialogue. There are some inquiries, such as a request for a drink of water or a request to use a telephone that are so routine that they cannot be fairly said to represent a desire on the part of an accused to open up a more generalized discussion relating directly or indirectly to the investigation. Such inquiries or statements, by either an accused or a police officer, relating to routine incidents of the custodial relationship, will not generally “initiate” a conversation in the sense in which that word was used in Edwards. Although ambiguous, the respondent’s question in this case as to what was going to happen to him evinced a willingness and a desire for a generalized discussion about the investigation; it was not merely a necessary inquiry arising out of the incidents of the custodial relationship.

Oregon v. Bradshaw, 462 U.S. 1039, 1045-46 (1983)

See Brown v. State, 577 N.E.2d 221, 230 (Ind. 1991), reh’g denied, cert. denied, 506 U.S. 833 (1992)(“In the instant case, [the defendant] initiated fresh dialogue in the car with exactly the same question found to be initiation in Bradshaw.”)

See also Boney v. State, 880 N.E.2d 279, 289 (Ind. Ct. App. 2008), trans. denied(citing Oregon v. Bradshaw, 462 U.S. 1039, 1045 (1983))(emphasis added)(“If a defendant requests the assistance of counsel, the police may not interrogate further until counsel is present unless the accused himself initiates further communication or conversation with the police by evincing a desire or willingness for a generalized discussion about the investigation.”)

• [The defendant] did continue speaking after saying “I want a lawyer.” However, these statements were rambling and made while [the defendant] was crying. . . . Rather than cease further communications with [the defendant], the detective instead repeatedly attempted to prod [the defendant] into either confessing or “clarifying” whether he really wanted counsel. These “persistent resumptions of communication after the defendant’s invocation of rights” were improper.

Bean v. State, 973 N.E.2d 35, 45 (Ind. Ct. App. 2012), trans. denied(quoting Carr v. State, 934 N.E.2d 1096, 1107 (Ind. 2010), reh’g denied)(emphasis added)

• Although [the defendant] was suffering from flesh wounds and possibly from mental illness at the time of his statements, nothing from the record suggests that these infirmities affected the knowing and voluntary nature of his statements. According to Officer Miller, [the defendant’s] physical injuries did not appear to affect his demeanor prior to questioning, and nothing from Wright’s mental condition suggested that this affected his understanding. Indeed, while [the defendant] indicated, after requesting a lawyer, that he was not feeling well, he nevertheless reinitiated questioning.

Wright v. State, 916 N.E.2d 269, 278 (Ind. Ct. App. 2009), trans. denied(emphasis added)

Resumption of interrogation after invocation of the right to remain silent

• Things are different, however, when the suspect does not request counsel but instead only invokes his right to remain silent. . . . [W]hen a suspect has only invoked his right to remain silent: “there is not a per se rule prohibiting the authorities from ever initiating a discussion or further questioning the individual on the subject. Rather, it must be shown on a case by case basis that the authorities ‘scrupulously honored’ the defendant’s right to cut off questioning at any time, and that he knew and understood these rights and voluntarily waived them.”

Mendoza-Vargas v. State, 974 N.E.2d 590, 594 (Ind. Ct. App. 2012)(quoting Moore v. State, 498 N.E.2d 1, 9 (Ind. 1986))

See Wesby v. State, 535 N.E.2d 133, 135 (Ind. 1989)(citing Moore v. State, 498 N.E.2d 1, 9 (Ind. 1986))(“When questioning is reinitiated by a defendant who has previously invoked his right to remain silent, a resulting confession is admissible.”)

• It is the State’s burden to prove that the suspect’s right to remain silent was scrupulously honored.

Mendoza-Vargas v. State, 974 N.E.2d 590, 594 (Ind. Ct. App. 2012)(citing Jenkins v. State, 627 N.E.2d 789, 796 (Ind. 1993), reh’g denied, cert. denied, 513 U.S. 812 (1994))

• There are several non-exclusive factors used to determine whether interrogation was properly resumed, including: the amount of time that lapsed between interrogations; the scope of the second interrogation; whether new Miranda warnings were given; and the degree to which police officers pursued further interrogation once the suspect has invoked his right to silence.

Mendoza-Vargas v. State, 974 N.E.2d 590, 594 (Ind. Ct. App. 2012)(citing United States v. Gillaum, 372 F.3d 848, 856 (7th Cir. 2004), cert. denied, 543 U.S. 969 (2004))

Interpretations of the amount of time that lapsed between interrogations

• [W]hen the accused invokes his right to remain silent, the police must “scrupulously honor” his right to cut off questioning. The police must cease questioning immediately and may resume questioning only after the passage of a significant amount of time and after giving a fresh set of Miranda warnings.

Pilarski v. State, 635 N.E.2d 166, 170 (Ind. 1994)(citing Moore v. State, 498 N.E.2d 1, 9 (Ind. 1986))(emphasis added)

• In the present case, the police commenced the questioning of [the defendant] approximately ninety minutes after he allegedly invoked his right to remain silent and after he was read the Miranda warnings again. Inasmuch as it was unclear as to whether [the defendant] had requested counsel, it was proper to make inquiry of [the defendant] in that regard.

Pilarski v. State, 635 N.E.2d 166, 170 (Ind. 1994)(citing Moore v. State, 498 N.E.2d 1, 9 (Ind. 1986))

Repetition of Miranda warnings upon the resumption of interrogation

• For information about when Miranda warnings need to be repeated, please review Miranda Warnings.

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