Maryland v. Shatzer

(Slip Opinion) OCTOBER TERM, 2009 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

MARYLAND v. SHATZER

CERTIORARI TO THE COURT OF APPEALS OF MARYLAND

No. 08–680. Argued October 5, 2009—Decided February 24, 2010

In 2003, a police detective tried to question respondent Shatzer, who

was incarcerated at a Maryland prison pursuant to a prior conviction,

about allegations that he had sexually abused his son. Shatzer in

voked his Miranda right to have counsel present during interroga

tion, so the detective terminated the interview. Shatzer was released

back into the general prison population, and the investigation was

closed. Another detective reopened the investigation in 2006 and at

tempted to interrogate Shatzer, who was still incarcerated. Shatzer

waived his Miranda rights and made inculpatory statements. The

trial court refused to suppress those statements, reasoning that Ed

wards v. Arizona, 451 U. S. 477, did not apply because Shatzer had

experienced a break in Miranda custody prior to the 2006 interroga

tion. Shatzer was convicted of sexual child abuse. The Court of Ap

peals of Maryland reversed, holding that the mere passage of time

does not end the Edwards protections, and that, assuming, arguendo,

a break-in-custody exception to Edwards existed, Shatzer’s release

back into the general prison population did not constitute such a

break.

Held: Because Shatzer experienced a break in Miranda custody lasting

more than two weeks between the first and second attempts at inter

rogation, Edwards does not mandate suppression of his 2006 state

ments. Pp. 4–18.

(a) Edwards created a presumption that once a suspect invokes the

Miranda right to the presence of counsel, any waiver of that right in

response to a subsequent police attempt at custodial interrogation is

involuntary. Edwards’ fundamental purpose is to “[p]reserv[e] the

integrity of an accused’s choice to communicate with police only

through counsel,” Patterson v. Illinois, 487 U. S. 285, 291, by “pre

vent[ing] police from badgering [him] into waiving his previously as

2 MARYLAND v. SHATZER

Syllabus

serted Miranda rights,” Michigan v. Harvey, 494 U. S. 344, 350. It is

easy to believe that a suspect’s later waiver was coerced or badgered

when he has been held in uninterrupted Miranda custody since his

first refusal to waive. He remains cut off from his normal life and

isolated in a “police-dominated atmosphere,” Miranda v. Arizona, 384

U. S. 436, 456, where his captors “appear to control [his] fate,” Illi

nois v. Perkins, 496 U. S. 292, 297. But where a suspect has been re

leased from custody and returned to his normal life for some time be

fore the later attempted interrogation, there is little reason to think

that his change of heart has been coerced. Because the Edwards pre

sumption has been established by opinion of this Court, it is appro

priate for this Court to specify the period of release from custody that

will terminate its application. See County of Riverside v. McLaugh

lin, 500 U. S. 44. The Court concludes that the appropriate period is

14 days, which provides ample time for the suspect to get reaccli

mated to his normal life, consult with friends and counsel, and shake

off any residual coercive effects of prior custody. Pp. 4–13.

(b) Shatzer’s release back into the general prison population consti

tutes a break in Miranda custody. Lawful imprisonment imposed

upon conviction does not create the coercive pressures produced by

investigative custody that justify Edwards. When previously incar

cerated suspects are released back into the general prison population,

they return to their accustomed surroundings and daily routine—

they regain the degree of control they had over their lives before the

attempted interrogation. Their continued detention is relatively dis

connected from their prior unwillingness to cooperate in an investiga

tion. The “inherently compelling pressures” of custodial interrogation

ended when Shatzer returned to his normal life. Pp. 13–16.

405 Md. 585, 954 A. 2d 1118, reversed and remanded.

SCALIA, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and KENNEDY, GINSBURG, BREYER, ALITO, and SOTOMAYOR, JJ.,

joined, and in which THOMAS, J., joined as to Part III. THOMAS, J., filed

an opinion concurring in part and concurring in the judgment. STE-

VENS, J., filed an opinion concurring in the judgment.

Cite as: 559 U. S. ____ (2010) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash­

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 08–680

_________________

MARYLAND, PETITIONER v. MICHAEL BLAINE

SHATZER, SR.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF

MARYLAND

[February 24, 2010]

JUSTICE SCALIA delivered the opinion of the Court.

We consider whether a break in custody ends the pre­

sumption of involuntariness established in Edwards v.

Arizona, 451 U. S. 477 (1981).

I

In August 2003, a social worker assigned to the Child

Advocacy Center in the Criminal Investigation Division of

the Hagerstown Police Department referred to the de­

partment allegations that respondent Michael Shatzer,

Sr., had sexually abused his 3-year-old son. At that time,

Shatzer was incarcerated at the Maryland Correctional

Institution-Hagerstown, serving a sentence for an unre­

lated child-sexual-abuse offense. Detective Shane Blank­

enship was assigned to the investigation and interviewed

Shatzer at the correctional institution on August 7, 2003.

Before asking any questions, Blankenship reviewed

Shatzer’s Miranda rights with him, and obtained a writ­

ten waiver of those rights. When Blankenship explained

that he was there to question Shatzer about sexually

abusing his son, Shatzer expressed confusion—he had

thought Blankenship was an attorney there to discuss the

2 MARYLAND v. SHATZER

Opinion of the Court

prior crime for which he was incarcerated. Blankenship

clarified the purpose of his visit, and Shatzer declined to

speak without an attorney. Accordingly, Blankenship

ended the interview, and Shatzer was released back into

the general prison population. Shortly thereafter,

Blankenship closed the investigation.

Two years and six months later, the same social worker

referred more specific allegations to the department about

the same incident involving Shatzer. Detective Paul

Hoover, from the same division, was assigned to the inves­

tigation. He and the social worker interviewed the victim,

then eight years old, who described the incident in more

detail. With this new information in hand, on March 2,

2006, they went to the Roxbury Correctional Institute, to

which Shatzer had since been transferred, and inter­

viewed Shatzer in a maintenance room outfitted with a

desk and three chairs. Hoover explained that he wanted

to ask Shatzer about the alleged incident involving

Shatzer’s son. Shatzer was surprised because he thought

that the investigation had been closed, but Hoover ex­

plained they had opened a new file. Hoover then read

Shatzer his Miranda rights and obtained a written waiver

on a standard department form.

Hoover interrogated Shatzer about the incident for

approximately 30 minutes. Shatzer denied ordering his

son to perform fellatio on him, but admitted to masturbat­

ing in front of his son from a distance of less than three

feet. Before the interview ended, Shatzer agreed to Hoo­

ver’s request that he submit to a polygraph examination.

At no point during the interrogation did Shatzer request

to speak with an attorney or refer to his prior refusal to

answer questions without one.

Five days later, on March 7, 2006, Hoover and another

detective met with Shatzer at the correctional facility to

administer the polygraph examination. After reading

Shatzer his Miranda rights and obtaining a written

Cite as: 559 U. S. ____ (2010) 3

Opinion of the Court

waiver, the other detective administered the test and

concluded that Shatzer had failed. When the detectives

then questioned Shatzer, he became upset, started to cry,

and incriminated himself by saying, “ ‘I didn’t force him. I

didn’t force him.’ ” 405 Md. 585, 590, 954 A. 2d 1118, 1121

(2008). After making this inculpatory statement, Shatzer

requested an attorney, and Hoover promptly ended the

interrogation.

The State’s Attorney for Washington County charged

Shatzer with second-degree sexual offense, sexual child

abuse, second-degree assault, and contributing to condi­

tions rendering a child in need of assistance. Shatzer

moved to suppress his March 2006 statements pursuant to

Edwards. The trial court held a suppression hearing and

later denied Shatzer’s motion. The Edwards protections

did not apply, it reasoned, because Shatzer had experi­

enced a break in custody for Miranda purposes between

the 2003 and 2006 interrogations. No. 21–K–06–37799

(Cir. Ct. Washington Cty., Md., Sept. 14, 2006), App. 55.

Shatzer pleaded not guilty, waived his right to a jury trial,

and proceeded to a bench trial based on an agreed state­

ment of facts. In accordance with the agreement, the

State described the interview with the victim and

Shatzer’s 2006 statements to the detectives. Based on the

proffered testimony of the victim and the “admission of the

defendant as to the act of masturbation,” the trial court

found Shatzer guilty of sexual child abuse of his son.1 No.

21–K–06–37799 (Cir. Ct. Washington Cty., Md., Sept. 21,

2006), id., at 70, 79.

Over the dissent of two judges, the Court of Appeals of

Maryland reversed and remanded. The court held that

“the passage of time alone is insufficient to [end] the pro­

——————

1 The State filed a nolle prosequi to the second-degree sexual offense

charge, and consented to dismissal of the misdemeanor charges as

barred by the statute of limitations.

4 MARYLAND v. SHATZER

Opinion of the Court

tections afforded by Edwards,” and that, assuming, ar

guendo, a break-in-custody exception to Edwards existed,

Shatzer’s release back into the general prison population

between interrogations did not constitute a break in cus­

tody. 405 Md., at 606–607, 954 A. 2d, at 1131. We

granted certiorari, 555 U. S. ___ (2009).

II

The Fifth Amendment, which applies to the States by

virtue of the Fourteenth Amendment, Malloy v. Hogan,

378 U. S. 1, 6 (1964), provides that “[n]o person . . . shall

be compelled in any criminal case to be a witness against

himself.” U. S. Const., Amdt. 5. In Miranda v. Arizona,

384 U. S. 436 (1966), the Court adopted a set of prophylac­

tic measures to protect a suspect’s Fifth Amendment right

from the “inherently compelling pressures” of custodial

interrogation. Id., at 467. The Court observed that “in­

communicado interrogation” in an “unfamiliar,” “police­

dominated atmosphere,” id., at 456–457, involves psycho­

logical pressures “which work to undermine the individ­

ual’s will to resist and to compel him to speak where he

would not otherwise do so freely,” id., at 467. Conse­

quently, it reasoned, “[u]nless adequate protective devices

are employed to dispel the compulsion inherent in custo­

dial surroundings, no statement obtained from the defen­

dant can truly be the product of his free choice.” Id., at

458.

To counteract the coercive pressure, Miranda an­

nounced that police officers must warn a suspect prior to

questioning that he has a right to remain silent, and a

right to the presence of an attorney. Id., at 444. After the

warnings are given, if the suspect indicates that he wishes

to remain silent, the interrogation must cease. Id., at

473–474. Similarly, if the suspect states that he wants an

attorney, the interrogation must cease until an attorney is

present. Id., at 474. Critically, however, a suspect can

Cite as: 559 U. S. ____ (2010) 5

Opinion of the Court

waive these rights. Id., at 475. To establish a valid

waiver, the State must show that the waiver was knowing,

intelligent, and voluntary under the “high standar[d] of

proof for the waiver of constitutional rights [set forth in]

Johnson v. Zerbst, 304 U. S. 458 (1938).” Id., at 475.

In Edwards, the Court determined that Zerbst’s tradi­

tional standard for waiver was not sufficient to protect a

suspect’s right to have counsel present at a subsequent

interrogation if he had previously requested counsel;

“additional safeguards” were necessary. 451 U. S., at 484.

The Court therefore superimposed a “second layer of

prophylaxis,” McNeil v. Wisconsin, 501 U. S. 171, 176

(1991). Edwards held:

“[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 cus­

todial interrogation even if he has been advised of his

rights. . . . [He] is not subject to further interrogation

by the authorities until counsel has been made avail­

able to him, unless the accused himself initiates fur­

ther communication, exchanges, or conversations with

the police.” 451 U. S., at 484–485.

The rationale of Edwards is that once a suspect indicates

that “he is not capable of undergoing [custodial] question­

ing without advice of counsel,” “any subsequent waiver

that has come at the authorities’ behest, and not at the

suspect’s own instigation, is itself the product of the ‘in­

herently compelling pressures’ and not the purely volun­

tary choice of the suspect.” Arizona v. Roberson, 486 U. S.

675, 681 (1988). Under this rule, a voluntary Miranda

waiver is sufficient at the time of an initial attempted

interrogation to protect a suspect’s right to have counsel

present, but it is not sufficient at the time of subsequent

attempts if the suspect initially requested the presence of

6 MARYLAND v. SHATZER

Opinion of the Court

counsel. The implicit assumption, of course, is that the

subsequent requests for interrogation pose a significantly

greater risk of coercion. That increased risk results not

only from the police’s persistence in trying to get the sus­

pect to talk, but also from the continued pressure that

begins when the individual is taken into custody as a

suspect and sought to be interrogated—pressure likely to

“increase as custody is prolonged,” Minnick v. Mississippi,

498 U. S. 146, 153 (1990). The Edwards presumption of

involuntariness ensures that police will not take advan­

tage of the mounting coercive pressures of “prolonged

police custody,” Roberson, 486 U. S., at 686, by repeatedly

attempting to question a suspect who previously requested

counsel until the suspect is “badgered into submission,”

id., at 690 (KENNEDY, J., dissenting).

We have frequently emphasized that the Edwards rule

is not a constitutional mandate, but judicially prescribed

prophylaxis. See, e.g., Montejo v. Louisiana, 556 U. S. ___,

___ (2009) (slip op., at 7–8); Michigan v. Harvey, 494 U. S.

344, 349 (1990); Solem v. Stumes, 465 U. S. 638, 644, n. 4

(1984). Because Edwards is “our rule, not a constitutional

command,” “it is our obligation to justify its expansion.”

Roberson, supra, at 688 (KENNEDY, J., dissenting). Lower

courts have uniformly held that a break in custody ends

the Edwards presumption, see, e.g., People v. Storm, 28

Cal. 4th 1007, 1023–1024, and n. 6, 52 P. 3d 52, 61–62,

and n. 6 (2002) (collecting state and federal cases), but we

have previously addressed the issue only in dicta, see

McNeil, supra, at 177 (Edwards applies “assuming there

has been no break in custody”).

A judicially crafted rule is “justified only by reference to

its prophylactic purpose,” Davis v. United States, 512 U. S.

452, 458 (1994) (internal quotation marks omitted), and

applies only where its benefits outweigh its costs, Montejo,

supra, at ___ (slip op., at 14). We begin with the benefits.

Edwards’ presumption of involuntariness has the inciden­

Cite as: 559 U. S. ____ (2010) 7

Opinion of the Court

tal effect of “conserv[ing] judicial resources which would

otherwise be expended in making difficult determinations

of voluntariness.” Minnick, supra, at 151. Its fundamen­

tal purpose, however, is to “[p]reserv[e] the integrity of an

accused’s choice to communicate with police only through

counsel,” Patterson v. Illinois, 487 U. S. 285, 291 (1988), by

“prevent[ing] police from badgering a defendant into waiv­

ing his previously asserted Miranda rights,” Harvey,

supra, at 350. Thus, the benefits of the rule are measured

by the number of coerced confessions it suppresses that

otherwise would have been admitted. See Montejo, supra,

at ___ (slip op., at 14).

It is easy to believe that a suspect may be coerced or

badgered into abandoning his earlier refusal to be ques­

tioned without counsel in the paradigm Edwards case.

That is a case in which the suspect has been arrested for a

particular crime and is held in uninterrupted pretrial

custody while that crime is being actively investigated.

After the initial interrogation, and up to and including the

second one, he remains cut off from his normal life and

companions, “thrust into” and isolated in an “unfamiliar,”

“police-dominated atmosphere,” Miranda, 384 U. S., at

456–457, where his captors “appear to control [his] fate,”

Illinois v. Perkins, 496 U. S. 292, 297 (1990). That was the

situation confronted by the suspects in Edwards,

Roberson, and Minnick, the three cases in which we have

held the Edwards rule applicable. Edwards was arrested

pursuant to a warrant and taken to a police station, where

he was interrogated until he requested counsel. Edwards,

451 U. S., at 478–479. The officer ended the interrogation

and took him to the county jail,2 but at 9:15 the next

——————

2 Jail is a “local government’s detention center where persons await­

ing trial or those convicted of misdemeanors are confined.” Black’s Law

Dictionary 910 (9th ed. 2009). Prison, by contrast, is a “state or federal

facility of confinement for convicted criminals, esp. felons.” Id., at 1314.

8 MARYLAND v. SHATZER

Opinion of the Court

morning, two of the officer’s colleagues reinterrogated

Edwards at the jail. Id., at 479. Roberson was arrested

“at the scene of a just-completed burglary” and interro­

gated there until he requested a lawyer. Roberson, 486

U. S., at 678. A different officer interrogated him three

days later while he “was still in custody pursuant to the

arrest.” Ibid. Minnick was arrested by local police and

taken to the San Diego jail, where two FBI agents interro­

gated him the next morning until he requested counsel.

Minnick, 498 U. S., at 148–149. Two days later a Missis­

sippi Deputy Sheriff reinterrogated him at the jail. Id., at

149. None of these suspects regained a sense of control or

normalcy after they were initially taken into custody for

the crime under investigation.

When, unlike what happened in these three cases, a

suspect has been released from his pretrial custody and

has returned to his normal life for some time before the

later attempted interrogation, there is little reason to

think that his change of heart regarding interrogation

without counsel has been coerced. He has no longer been

isolated. He has likely been able to seek advice from an

attorney, family members, and friends.3 And he knows

from his earlier experience that he need only demand

counsel to bring the interrogation to a halt; and that in­

vestigative custody does not last indefinitely. In these

circumstances, it is far fetched to think that a police offi­

cer’s asking the suspect whether he would like to waive

his Miranda rights will any more “wear down the ac­

——————

3 JUSTICESTEVENS points out, post, at 7 (opinion concurring in judg­

ment), that in Minnick, actual pre-reinterrogation consultation with an

attorney during continued custody did not suffice to avoid application of

Edwards. That does not mean that the ability to consult freely with

attorneys and others does not reduce the level of coercion at all, or that

it is “only questionably relevant,” post, at 7, to whether termination of

custody reduces the coercive pressure that is the basis for Edwards’

super-prophylactic rule.

Cite as: 559 U. S. ____ (2010) 9

Opinion of the Court

cused,” Smith v. Illinois, 469 U. S. 91, 98 (1984) (per cu

riam), than did the first such request at the original at­

tempted interrogation—which is of course not deemed

coercive. His change of heart is less likely attributable to

“badgering” than it is to the fact that further deliberation

in familiar surroundings has caused him to believe

(rightly or wrongly) that cooperating with the investiga­

tion is in his interest. Uncritical extension of Edwards to

this situation would not significantly increase the number

of genuinely coerced confessions excluded. The “justifica­

tion for a conclusive presumption disappears when appli­

cation of the presumption will not reach the correct result

most of the time.” Coleman v. Thompson, 501 U. S. 722,

737 (1991).

At the same time that extending the Edwards rule

yields diminished benefits, extending the rule also in­

creases its costs: the in-fact voluntary confessions it ex­

cludes from trial, and the voluntary confessions it deters

law enforcement officers from even trying to obtain. Vol­

untary confessions are not merely “a proper element in

law enforcement,” Miranda, supra, at 478, they are an

“unmitigated good,” McNeil, 501 U. S., at 181, “ ‘essential

to society’s compelling interest in finding, convicting, and

punishing those who violate the law,’ ” ibid. (quoting

Moran v. Burbine, 475 U. S. 412, 426 (1986)).

The only logical endpoint of Edwards disability is ter­

mination of Miranda custody and any of its lingering

effects. Without that limitation—and barring some purely

arbitrary time-limit4—every Edwards prohibition of cus­

todial interrogation of a particular suspect would be eter­

——————

4 The State’s alternative argument in the present case is that the

substantial lapse in time between the 2003 and 2006 attempts at

interrogation independently ended the Edwards presumption. Our

disposition makes it unnecessary to address that argument.

10 MARYLAND v. SHATZER

Opinion of the Court

nal. The prohibition applies, of course, when the subse­

quent interrogation pertains to a different crime,

Roberson, supra, when it is conducted by a different law

enforcement authority, Minnick, 498 U. S. 146, and even

when the suspect has met with an attorney after the first

interrogation, ibid. And it not only prevents questioning

ex ante; it would render invalid ex post, confessions invited

and obtained from suspects who (unbeknownst to the

interrogators) have acquired Edwards immunity previ­

ously in connection with any offense in any jurisdiction.5

In a country that harbors a large number of repeat offend­

ers,6 this consequence is disastrous.

We conclude that such an extension of Edwards is not

justified; we have opened its “protective umbrella,” Solem,

465 U. S., at 644, n. 4, far enough. The protections offered

by Miranda, which we have deemed sufficient to ensure

that the police respect the suspect’s desire to have an

attorney present the first time police interrogate him,

adequately ensure that result when a suspect who initially

requested counsel is reinterrogated after a break in cus­

——————

5 This assumes that Roberson’s extension of Edwards to subsequent

interrogation for a different crime, and Minnick’s extension of Edwards

to subsequent interrogation by a different law enforcement agency

would apply even when the place of custody and the identity of the

custodial agency are not the same (as they were in Roberson and

Minnick) as those of the original interrogation. That assumption would

seem reasonable if the Edwards-suspending effect of a termination of

custody is rejected. Reinterrogation in different custody or by a differ­

ent interrogating agency would seem, if anything, less likely than

termination of custody to reduce coercive pressures. At the original

site, and with respect to the original interrogating agency, the suspect

has already experienced cessation of interrogation when he demands

counsel—which he may have no reason to expect elsewhere.

6 According to a recent study, 67.5% of prisoners released from 15

States in 1994 were rearrested within three years. See Dept. of Justice,

Bureau of Justice Statistics, Special Report, Recidivism of Prisoners

Released in 1994 (NCJ 193427, 2002).

Cite as: 559 U. S. ____ (2010) 11

Opinion of the Court

tody that is of sufficient duration to dissipate its coercive

effects.

If Shatzer’s return to the general prison population

qualified as a break in custody (a question we address in

Part III, infra), there is no doubt that it lasted long

enough (2½ years) to meet that durational 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 adju­

dication; law enforcement officers need to know, with

certainty and beforehand, when renewed interrogation is

lawful. And while it is certainly unusual for this Court to

set forth precise time limits governing police action, it is

not unheard-of. In County of Riverside v. McLaughlin,

500 U. S. 44 (1991), we specified 48 hours as the time

within which the police must comply with the requirement

of Gerstein v. Pugh, 420 U. S. 103 (1975), that a person

arrested without a warrant be brought before a magistrate

to establish probable cause for continued detention.

Like McLaughlin, this is a case in which the requisite

police action (there, presentation to a magistrate; here,

abstention from further interrogation) has not been pre­

scribed by statute but has been established by opinion of

this Court. We think it appropriate to specify a period of

time to avoid the consequence that continuation of the

Edwards presumption “will not reach the correct result

most of the time.” Coleman, supra, at 737. It seems to us

that period is 14 days. That provides plenty of time for

the suspect to get reacclimated to his normal life, to con­

sult with friends and counsel, and to shake off any resid­

ual coercive effects of his prior custody.

The 14-day limitation meets Shatzer’s concern that a

break-in-custody rule lends itself to police abuse. He

envisions that once a suspect invokes his Miranda right to

counsel, the police will release the suspect briefly (to end

the Edwards presumption) and then promptly bring him

12 MARYLAND v. SHATZER

Opinion of the Court

back into custody for reinterrogation. But once the sus­

pect has been out of custody long enough (14 days) to

eliminate its coercive effect, there will be nothing to gain

by such gamesmanship—nothing, that is, except the en­

tirely appropriate gain of being able to interrogate a sus­

pect who has made a valid waiver of his Miranda rights.7

Shatzer argues that ending the Edwards protections at

a break in custody will undermine Edwards’ purpose to

conserve judicial resources. To be sure, we have said that

“[t]he merit of the Edwards decision lies in the clarity of

its command and the certainty of its application.”

Minnick, 498 U. S., at 151. But clarity and certainty are

not goals in themselves. They are valuable only when

they reasonably further the achievement of some substan­

tive end—here, the exclusion of compelled confessions.

Confessions obtained after a 2-week break in custody and

a waiver of Miranda rights are most unlikely to be com­

pelled, and hence are unreasonably excluded. In any case,

a break-in-custody exception will dim only marginally, if

at all, the bright-line nature of Edwards. In every case

involving Edwards, the courts must determine whether

the suspect was in custody when he requested counsel and

when he later made the statements he seeks to suppress.

Now, in cases where there is an alleged break in custody,

they simply have to repeat the inquiry for the time be­

tween the initial invocation and reinterrogation. In most

cases that determination will be easy. And when it is

——————

7 A defendant who experiences a 14-day break in custody after invok­

ing the Miranda right to counsel is not left without protection. Ed

wards establishes a presumption that a suspect’s waiver of Miranda

rights is involuntary. See Arizona v. Roberson, 486 U. S. 675, 681

(1988). Even without this “second layer of prophylaxis,” McNeil v.

Wisconsin, 501 U. S. 171, 176 (1991), a defendant is still free to claim

the prophylactic protection of Miranda—arguing that his waiver of

Miranda rights was in fact involuntary under Johnson v. Zerbst, 304

U. S. 458 (1938). See Miranda, 384 U. S., at 475.

Cite as: 559 U. S. ____ (2010) 13

Opinion of the Court

determined that the defendant pleading Edwards has

been out of custody for two weeks before the contested

interrogation, the court is spared the fact-intensive in­

quiry into whether he ever, anywhere, asserted his

Miranda right to counsel.

III

The facts of this case present an additional issue. No

one questions that Shatzer was in custody for Miranda

purposes during the interviews with Detective

Blankenship in 2003 and Detective Hoover in 2006. Like­

wise, no one questions that Shatzer triggered the Edwards

protections when, according to Detective Blankenship’s

notes of the 2003 interview, he stated that “ ‘he would not

talk about this case without having an attorney present,’ ”

405 Md., at 589, 954 A. 2d, at 1120. After the 2003 inter­

view, Shatzer was released back into the general prison

population where he was serving an unrelated sentence.

The issue is whether that constitutes a break in Miranda

custody.

We have never decided whether incarceration consti­

tutes custody for Miranda purposes, and have indeed

explicitly declined to address the issue. See Perkins, 496

U. S., at 299. See also Bradley v. Ohio, 497 U. S. 1011,

1013 (1990) (Marshall, J., dissenting from denial of certio­

rari). Whether it does depends upon whether it exerts the

coercive pressure that Miranda was designed to guard

against—the “danger of coercion [that] results from the

interaction of custody and official interrogation.” Perkins,

supra, at 297 (emphasis added). To determine whether a

suspect was in Miranda custody we have asked whether

“there is a ‘formal arrest or restraint on freedom of move­

ment’ of the degree associated with a formal arrest.” New

York v. Quarles, 467 U. S. 649, 655 (1984); see also Stans

bury v. California, 511 U. S. 318, 322 (1994) (per curiam).

This test, no doubt, is satisfied by all forms of incarcera­

14 MARYLAND v. SHATZER

Opinion of the Court

tion. Our cases make clear, however, that the freedom-of­

movement test identifies only a necessary and not a suffi­

cient condition for Miranda custody. We have declined to

accord it “talismanic power,” because Miranda is to be

enforced “only in those types of situations in which the

concerns that powered the decision are implicated.”

Berkemer v. McCarty, 468 U. S. 420, 437 (1984). Thus, the

temporary and relatively nonthreatening detention in­

volved in a traffic stop or Terry stop, see Terry v. Ohio, 392

U. S. 1 (1968), does not constitute Miranda custody.

McCarty, supra, at 439–440. See also Perkins, supra, at

296.

Here, we are addressing the interim period during

which a suspect was not interrogated, but was subject to a

baseline set of restraints imposed pursuant to a prior

conviction. Without minimizing the harsh realities of

incarceration, we think lawful imprisonment imposed

upon conviction of a crime does not create the coercive

pressures identified in Miranda.

Interrogated suspects who have previously been con­

victed of crime live in prison. When they are released

back into the general prison population, they return to

their accustomed surroundings and daily routine—they

regain the degree of control they had over their lives prior

to the interrogation. Sentenced prisoners, in contrast to

the Miranda paradigm, are not isolated with their accus­

ers. They live among other inmates, guards, and workers,

and often can receive visitors and communicate with

people on the outside by mail or telephone.

Their detention, moreover, is relatively disconnected

from their prior unwillingness to cooperate in an investi­

gation. The former interrogator has no power to increase

the duration of incarceration, which was determined at

sentencing.8 And even where the possibility of parole

——————

8 We distinguish the duration of incarceration from the duration of

Cite as: 559 U. S. ____ (2010) 15

Opinion of the Court

exists, the former interrogator has no apparent power to

decrease the time served. This is in stark contrast to the

circumstances faced by the defendants in Edwards,

Roberson, and Minnick, whose continued detention as

suspects rested with those controlling their interrogation,

and who confronted the uncertainties of what final

charges they would face, whether they would be convicted,

and what sentence they would receive.

Shatzer’s experience illustrates the vast differences

between Miranda custody and incarceration pursuant to

conviction. At the time of the 2003 attempted interroga­

tion, Shatzer was already serving a sentence for a prior

conviction. After that, he returned to the general prison

population in the Maryland Correctional Institution-

Hagerstown and was later transferred, for unrelated

reasons, down the street to the Roxbury Correctional

Institute. Both are medium-security state correctional

facilities. See Maryland Div. of Correction Inmate Hand­

book 7 (2007), online at http://dpscs.md.gov/rehabservs/

doc/pdfs/2007_Inmate_Handbook.pdf (all Internet materi­

als as visited Feb. 22, 2010, and available in Clerk of

Court’s case file). Inmates in these facilities generally can

visit the library each week, id., at 28; have regular exer­

cise and recreation periods, id., at 17; can participate

in basic adult education and occupational training, id.,

at 26, 7; are able to send and receive mail, id., at 21–22,

16; and are allowed to receive visitors twice a week,

see http://dpscs.md.gov/locations/mcih.shtml; http://www.

dpscs.state.md.us/locations/rci.shtml. His continued de­

——————

what might be termed interrogative custody. When a prisoner is

removed from the general prison population and taken to a separate

location for questioning, the duration of that separation is assuredly

dependent upon his interrogators. For which reason once he has

asserted a refusal to speak without assistance of counsel Edwards

prevents any efforts to get him to change his mind during that inter­

rogative custody.

16 MARYLAND v. SHATZER

Opinion of the Court

tention after the 2003 interrogation did not depend on

what he said (or did not say) to Detective Blankenship,

and he has not alleged that he was placed in a higher level

of security or faced any continuing restraints as a result of

the 2003 interrogation. The “inherently compelling pres­

sures” of custodial interrogation ended when he returned

to his normal life.

IV

A few words in response to JUSTICE STEVENS’ concur­

rence: It claims we ignore that “[w]hen police tell an indi­

gent suspect that he has the right to an attorney” and

then “reinterrogate” him without providing a lawyer, “the

suspect is likely to feel that the police lied to him and that

he really does not have any right to a lawyer.” Post, at 2

(opinion concurring in judgment) (hereinafter concur­

rence). See also post, at 4, 7, n. 11, 11, n. 16. The fallacy

here is that we are not talking about “reinterrogating” the

suspect; we are talking about asking his permission to be

interrogated. An officer has in no sense lied to a suspect

when, after advising, as Miranda requires, “You have the

right to remain silent, and if you choose to speak you have

the right to the presence of an attorney,” he promptly ends

the attempted interrogation because the suspect declines

to speak without counsel present, and then, two weeks

later, reapproaches the suspect and asks, “Are you now

willing to speak without a lawyer present?”

The “concer[n] that motivated the Edwards line of

cases,” post, at 2–3, n. 2, is that the suspect will be coerced

into saying yes. That concern guides our decision today.

Contrary to the concurrence’s conclusion, post, at 3, 5–6,

there is no reason to believe a suspect will view confession

as “ ‘the only way to end his interrogation’ ” when, before

the interrogation begins, he is told that he can avoid it by

simply requesting that he not be interrogated without

counsel present—an option that worked before. If, as the

Cite as: 559 U. S. ____ (2010) 17

Opinion of the Court

concurrence argues will often be the case, post, at 5, a

break in custody does not change the suspect’s mind, he

need only say so.

The concurrence also accuses the Court of “ignor[ing]

that when a suspect asks for counsel, until his request is

answered, there are still the same ‘inherently compelling’

pressures of custodial interrogation on which the Miranda

line of cases is based.” Post, at 4. We do not ignore these

pressures; nor do we suggest that they disappear when

custody is recommenced after a break, see post, at 5. But

if those pressures are merely “the same” as before, then

Miranda provides sufficient protection—as it did before.

The Edwards presumption of involuntariness is justified

only in circumstances where the coercive pressures have

increased so much that suspects’ waivers of Miranda

rights are likely to be involuntary most of the time. Con­

trary to the concurrence’s suggestion, post, at 3, it is only

in those narrow circumstances—when custody is unbro­

ken—that the Court has concluded a “fresh se[t] of

Miranda warnings” is not sufficient. See Roberson, 486

U. S., at 686.

In the last analysis, it turns out that the concurrence

accepts our principal points. It agrees that Edwards

prophylaxis is not perpetual; it agrees that a break in

custody reduces the inherently compelling pressure upon

which Edwards was based; it agrees that Shatzer’s release

back into the general prison population constituted a

break in custody; and it agrees that in this case the break

was long enough to render Edwards inapplicable. Post, at

10–12. We differ in two respects: Instead of terminating

Edwards protection when the custodial pressures that

were the basis for that protection dissipate, the concur­

rence would terminate it when the suspect would no

longer “feel that he has ‘been denied the counsel he has

clearly requested,’ ” post, at 11. This is entirely unrelated

to the rationale of Edwards. If confidence in the police’s

18 MARYLAND v. SHATZER

Opinion of the Court

promise to provide counsel were the touchstone, Edwards

would not have applied in Minnick, where the suspect in

continuing custody actually met with appointed counsel.

The concurrence’s rule is also entirely unrelated to the

existence of a break in custody. While that may relieve

the accumulated coercive pressures of custody that are the

foundation for Edwards, it is hard to see how it bolsters

the suspect’s confidence that if he asks for counsel he will

get one.

And secondly, the concurrence differs from us in declin­

ing to say how long after a break in custody the termina­

tion of Edwards protection occurs. Two and one-half

years, it says, is clearly enough—but it gives law enforce­

ment authorities no further guidance. The concurrence

criticizes our use of 14 days as arbitrary and unexplained,

post, at 5, and n. 7. But in fact that rests upon the same

basis as the concurrence’s own approval of a 21⁄2-year

break in custody: how much time will justify “treating the

second interrogation as no more coercive than the first,”

post, at 10. Failure to say where the line falls short of 21⁄2

years, and leaving that for future case-by-case determina­

tion, is certainly less helpful, but not at all less arbitrary.

* * *

Because Shatzer experienced a break in Miranda cus­

tody lasting more than two weeks between the first and

second attempts at interrogation, Edwards does not man­

date suppression of his March 2006 statements. Accord­

ingly, we reverse the judgment of the Court of Appeals of

Maryland, and remand the case for further proceedings

not inconsistent with this opinion.

It is so ordered.

Cite as: 559 U. S. ____ (2010) 1

Opinion of THOMAS, J.

SUPREME COURT OF THE UNITED STATES

_________________

No. 08–680

_________________

MARYLAND, PETITIONER v. MICHAEL BLAINE

SHATZER, SR.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF

MARYLAND

[February 24, 2010]

JUSTICE THOMAS, concurring in part and concurring in

the judgment.

I join Part III of the Court’s opinion, which holds that

release into the general prison population constitutes a

break in custody. I do not join the Court’s decision to

extend the presumption of involuntariness established in

Edwards v. Arizona, 451 U. S. 477 (1981), for 14 days after

custody ends.

It is not apparent to me that the presumption of in

voluntariness the Court recognized in Edwards is justifi

able even in the custodial setting to which Edwards ap

plies it. See, e.g., Minnick v. Mississippi, 498 U. S. 146,

160 (1990) (SCALIA, J., dissenting). Accordingly, I would

not extend the Edwards rule “beyond the circumstances

present in Edwards itself.” Id., at 162. But even if one

believes that the Court is obliged to apply Edwards to any

case involving continuing custody, the Court’s opinion

today goes well beyond that. It extends the presumption

of involuntariness Edwards applies in custodial settings to

interrogations that occur after custody ends.

The Court concedes that this extension, like the Ed

wards presumption itself, is not constitutionally required.

The Court nevertheless defends the extension as a judi

cially created prophylaxis against compelled confessions.

Even if one accepts that such prophylaxis is both permis

2 MARYLAND v. SHATZER

Opinion of THOMAS, J.

sible generally and advisable for some period following a

break in custody,1 the Court’s 14-day rule fails to satisfy

the criteria our precedents establish for the judicial crea

tion of such a safeguard.

Our precedents insist that judicially created prophylac

tic rules like those in Edwards and Miranda v. Arizona,

384 U. S. 436 (1966), maintain “the closest possible fit”

between the rule and the Fifth Amendment interests they

seek to protect. United States v. Patane, 542 U. S. 630,

640–641 (2004) (plurality opinion); see generally Montejo

v. Louisiana, 556 U. S. ___, ___ (2009) (slip op., at 18);

Chavez v. Martinez, 538 U. S. 760, 772 (2003) (plurality

opinion). The Court’s 14-day rule does not satisfy this

test. The Court relates its 14-day rule to the Fifth

Amendment simply by asserting that 14 days between

release and recapture should provide “plenty of time for

the suspect . . . to shake off any residual coercive effects of

his prior custody,” ante, at 11.

——————

1 At a minimum the latter proposition is questionable. I concede that

some police officers might badger a suspect during a subsequent inter

rogation after a break in custody, or might use catch-and-release tactics

to suggest they will not take no for an answer. But if a suspect reenters

custody after being questioned and released, he need only invoke his

right to counsel to ensure Edwards’ protection for the duration of the

subsequent detention. And, if law enforcement officers repeatedly

release and recapture a suspect to wear down his will—such that his

participation in a subsequent interrogation is no longer truly volun

tary—the “high standar[d] of proof for the waiver of constitutional

rights [set forth in] Johnson v. Zerbst, 304 U. S. 458 (1938),” will

protect against the admission of the suspect’s statements in court.

Miranda v. Arizona, 384 U. S. 436, 475 (1966). The Zerbst inquiry

takes into account the totality of the circumstances surrounding the

waiver—including any improper pressures by police. See id., at 464; cf.

ante, at 11–12, n. 6 (stating that “[e]ven without [Edwards’] second

layer of prophylaxis, a defendant is still free to claim the prophylactic

protection of Miranda—arguing that his waiver of Miranda rights was

in fact involuntary under Johnson v. Zerbst” (internal quotation marks

and citation omitted)).

Cite as: 559 U. S. ____ (2010) 3

Opinion of THOMAS, J.

This ipse dixit does not explain why extending the Ed

wards presumption for 14 days following a break in cus

tody—as opposed to 0, 10, or 100 days—provides the “clos

est possible fit” with the Self-Incrimination Clause,

Patane, supra, at 640–641; see ante, at 11 (merely stating

that “[i]t seems to us that” the appropriate “period is 14

days”). Nor does it explain how the benefits of a prophy

lactic 14-day rule (either on its own terms or compared

with other possible rules) “outweigh its costs” (which

would include the loss of law enforcement information as

well as the exclusion of confessions that are in fact volun

tary). Ante, at 6 (citing Montejo, supra, at __ (slip op., at

14)).

To be sure, the Court’s rule has the benefit of providing

a bright line. Ante, at 12. But bright-line rules are not

necessary to prevent Fifth Amendment violations, as the

Court has made clear when refusing to adopt such rules in

cases involving other Miranda rights. See, e.g., Michigan

v. Mosley, 423 U. S. 96, 103–104 (1975). And an otherwise

arbitrary rule is not justifiable merely because it gives

clear instruction to law enforcement officers.2

As the Court concedes, “clarity and certainty are not

goals in themselves. They are valuable only when they

reasonably further the achievement of some substantive

end—here, the exclusion of compelled confessions” that

the Fifth Amendment prohibits. Ante, at 12. The Court’s

arbitrary 14-day rule fails this test, even under the rela

tively permissive criteria set forth in our precedents.

Accordingly, I do not join that portion of the Court’s

opinion.

——————

2 Though the Court asserts that its 14-day rule will tell “law enforce

ment officers . . . with certainty and beforehand, when renewed interro

gation is lawful,” ante, at 10, that is not so clear. Determining whether

a suspect was previously in custody, and when the suspect was re

leased, may be difficult without questioning the suspect, especially if

state and federal authorities are conducting simultaneous investiga

tions.

Cite as: 559 U. S. ____ (2010) 1

STEVENS, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES

_________________

No. 08–680

_________________

MARYLAND, PETITIONER v. MICHAEL BLAINE

SHATZER, SR.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF

MARYLAND

[February 24, 2010]

JUSTICE STEVENS, concurring in the judgment.

While I agree that the presumption from Edwards v.

Arizona, 451 U. S. 477 (1981), is not “eternal,” ante, at 9–

10, and does not mandate suppression of Shatzer’s state­

ment made after a 2½-year break in custody, I do not

agree with the Court’s newly announced rule: that Ed

wards always ceases to apply when there is a 14-day

break in custody, ante, at 11.

In conducting its “cost-benefit” analysis, the Court

demeans Edwards as a “ ‘second layer’ ” of “judicially pre­

scribed prophylaxis,” ante, at 5, 6, 12, n. 7; see also ante, at

6 (describing Edwards as “ ‘our rule, not a constitutional

command’ ” (quoting Arizona v. Roberson, 486 U. S. 675,

688 (1988) (KENNEDY, J., dissenting))). The source of the

holdings in the long line of cases that includes both Ed

wards and Miranda, however, is the Fifth Amendment’s

protection against compelled self-incrimination applied to

the “compulsion inherent in custodial” interrogation,

Miranda v. Arizona, 384 U. S. 436, 458 (1966), and the

“significan[ce]” of “the assertion of the right to counsel,”

Edwards, 451 U. S., at 485.1 The Court’s analysis today is

——————

1 SeeDickerson v. United States, 530 U. S. 428, 438 (2000) (holding

that “the protections announced in Miranda” are “constitutionally

required”); Shea v. Louisiana, 470 U. S. 51, 52 (1985) (“In Edwards . . . ,

this Court ruled that a criminal defendant’s rights under the Fifth and

2 MARYLAND v. SHATZER

STEVENS, J., concurring in judgment

insufficiently sensitive to the concerns that motivated the

Edwards line of cases.

I

The most troubling aspect of the Court’s time-based rule

is that it disregards the compulsion caused by a second (or

third, or fourth) interrogation of an indigent suspect who

was told that if he requests a lawyer, one will be provided

for him. When police tell an indigent suspect that he has

the right to an attorney, that he is not required to speak

without an attorney present, and that an attorney will be

provided to him at no cost before questioning, the police

have made a significant promise. If they cease question­

ing and then reinterrogate the suspect 14 days later with­

out providing him with a lawyer, the suspect is likely to

feel that the police lied to him and that he really does not

have any right to a lawyer.2

——————

Fourteenth Amendments were violated by the use of his confession

obtained by police-instigated interrogation—without counsel present—

after he requested an attorney”); Oregon v. Bradshaw, 462 U. S. 1039,

1043 (1983) (plurality opinion) (“[The] subsequent incriminating

statements made without [an] attorney present violated the rights

secured to the defendant by the Fifth and Fourteenth Amendments to

the United States Constitution”); Miranda, 384 U. S., at 458 (examin­

ing the “history and precedent underlying the Self-Incrimination

Clause to determine its applicability in this situation”).

2 The Court states that this argument rests on a “fallacy” because “we

are not talking about ‘reinterrogating’ the suspect; we are talking about

asking his permission to be interrogated.” Ante, at 16 (emphasis

deleted). Because, however, a suspect always has the right to remain

silent, this is a distinction without a difference: Any time that the

police interrogate or reinterrogate, and read a suspect his Miranda

rights, the suspect may decline to speak. And if this is a “fallacy,” it is

the same “fallacy” upon which this Court has relied in the Edwards line

of cases that held that police may not continue to interrogate a suspect

who has requested a lawyer: Police may not continue to ask such a

suspect whether they may interrogate him until that suspect has a

lawyer present. The Court’s apparent belief that this is a “fallacy” only

underscores my concern that its analysis is insufficiently sensitive to

Cite as: 559 U. S. ____ (2010) 3

STEVENS, J., concurring in judgment

When officers informed Shatzer of his rights during the

first interrogation, they presumably informed him that if

he requested an attorney, one would be appointed for him

before he was asked any further questions. But if an

indigent suspect requests a lawyer, “any further interro­

gation” (even 14 days later) “without counsel having been

provided will surely exacerbate whatever compulsion to

speak the suspect may be feeling.” Roberson, 486 U. S., at

686. When police have not honored an earlier commit­

ment to provide a detainee with a lawyer, the detainee

likely will “understan[d] his (expressed) wishes to have

been ignored” and “may well see further objection as futile

and confession (true or not) as the only way to end his

interrogation.” Davis v. United States, 512 U. S. 452, 472–

473 (1994) (Souter, J., concurring in judgment). Cf. Coo

per v. Dupnik, 963 F. 2d 1220, 1225 (CA9 1992) (en banc)

(describing an elaborate police task force plan to ignore a

suspect’s requests for counsel, on the theory that such

would induce hopelessness and thereby elicit an admis­

sion). Simply giving a “fresh se[t] of Miranda warnings”

will not “ ‘reassure’ a suspect who has been denied the

counsel he has clearly requested that his rights have

remained untrammeled.” Roberson, 486 U. S., at 686.

II

The Court never explains why its rule cannot depend on,

in addition to a break in custody and passage of time, a

concrete event or state of affairs, such as the police having

honored their commitment to provide counsel. Instead,

the Court simply decides to create a time-based rule, and

in so doing, disregards much of the analysis upon which

Edwards and subsequent decisions were based. “[T]he

assertion of the right to counsel” “[i]s a significant event.”3

——————

the concerns that motivated the Edwards line of cases.

3 Indeed, a lawyer has a “unique ability to protect the Fifth Amend­

ment rights of a client undergoing custodial interrogation.” Fare v.

4 MARYLAND v. SHATZER

STEVENS, J., concurring in judgment

Edwards, 451 U. S., at 485. As the Court today acknowl­

edges, the right to counsel, like the right to remain silent,

is one that police may “coerc[e] or badge[r],” ante, at 7, a

suspect into abandoning.4 However, as discussed above,

the Court ignores the effects not of badgering but of rein­

terrogating a suspect who took the police at their word

that he need not answer questions without an attorney

present. See Roberson, 486 U. S., at 686. The Court,

moreover, ignores that when a suspect asks for counsel,

until his request is answered, there are still the same

“inherently compelling” pressures of custodial interroga­

tion on which the Miranda line of cases is based, see 486

U. S., at 681,5 and that the concern about compulsion is

especially serious for a detainee who has requested a

lawyer, an act that signals his “inability to cope with the

——————

Michael C., 442 U. S. 707, 719 (1979). Counsel can curb an officer’s

overbearing conduct, advise a suspect of his rights, and ensure that

there is an accurate record of any interrogation. “Because of this

special ability of the lawyer to help the client preserve his Fifth

Amendment rights once the client becomes enmeshed in the adversary

process, the Court found that the right to have counsel present at the

interrogation is indispensible to the protection of the Fifth Amendment

privilege.” Arizona v. Roberson, 486 U. S. 675, 682, n. 4 (1988) (internal

quotation marks omitted). Thus, “once the accused has requested

counsel,” courts must be especially wary of “coercive form[s] of custodial

interrogation.” Bradshaw, 462 U. S., at 1051 (Powell, J., concurring in

judgment).

4 See Michigan v. Harvey, 494 U. S. 344, 350 (1990) (subsequent con­

fession suggests the police “badger[ed] a defendant into waiving his

previously asserted Miranda rights”).

5 See Minnick v. Mississippi, 498 U. S. 146, 155 (1990) (“[N]either

admissions nor waivers are effective unless there are both particular

and systemic assurances that the coercive pressures of custody were

not the inducing cause”); cf. Smith v. Illinois, 469 U. S. 91, 98 (1984)

(per curiam) (“[T]he authorities through ‘badger[ing]’ or ‘overreach­

ing’—explicit or subtle, deliberate or unintentional—might otherwise

wear down the accused and persuade him to incriminate himself

notwithstanding his earlier request for counsel’s assistance”).

Cite as: 559 U. S. ____ (2010) 5

STEVENS, J., concurring in judgment

pressures of custodial interrogation,” id., at 686.6

Instead of deferring to these well-settled understand­

ings of the Edwards rule, the Court engages in its own

speculation that a 14-day break in custody eliminates the

compulsion that animated Edwards. But its opinion gives

no strong basis for believing that this is the case.7 A 14­

day break in custody does not eliminate the rationale for

the initial Edwards rule: The detainee has been told that

he may remain silent and speak only through a lawyer

and that if he cannot afford an attorney, one will be pro­

vided for him. He has asked for a lawyer. He does not

have one. He is in custody. And police are still question­

ing him. A 14-day break in custody does not change the

fact that custodial interrogation is inherently compelling.

It is unlikely to change the fact that a detainee “considers

himself unable to deal with the pressures of custodial

interrogation without legal assistance.” Roberson, 486

U. S., at 683.8 And in some instances, a 14-day break in

——————

6 See Roberson, 486 U. S., at 681 (“[I]f a suspect believes that he is not

capable of undergoing such questioning without advice of counsel, then

it is presumed that any subsequent waiver that has come at the au­

thorities’ behest, and not at the suspect’s own instigation, is itself the

product of the ‘inherently compelling pressures’ ”); Michigan v. Mosley,

423 U. S. 96, 110, n. 2 (1975) (White, J., concurring in result) (“[T]he

accused having expressed his own view that he is not competent to deal

with the authorities without legal advice, a later decision at the au­

thorities’ insistence to make a statement without counsel’s presence

may properly be viewed with skepticism”).

7 Today’s decision, moreover, offers no reason for its 14-day time pe­

riod. To be sure, it may be difficult to marshal conclusive evidence

when setting an arbitrary time period. But in light of the basis for

Edwards, we should tread carefully. Instead, the only reason for

choosing a 14-day time period, the Court tells us, is that “[i]t seems to

us that period is 14 days.” Ante, at 11. That time period is “plenty of

time for the suspect to get reacclimated to his normal life, to consult

with friends and counsel, and to shake off any residual coercive effects

of his prior custody.” Ibid. But the Court gives no reason for that

speculation, which may well prove inaccurate in many circumstances.

8 In Roberson, for example, we observed that once a suspect has as­

6 MARYLAND v. SHATZER

STEVENS, J., concurring in judgment

custody may make matters worse 9 “[w]hen a suspect

understands his (expressed) wishes to have been ignored”

and thus “may well see further objection as futile and

confession (true or not) as the only way to end his interro­

gation.” Davis, 512 U. S., at 472–473 (Souter, J., concur­

ring in judgment).10

The Court ignores these understandings from the Ed

wards line of cases and instead speculates that if a suspect

is reinterrogated and eventually talks, it must be that

“further deliberation in familiar surroundings has caused

him to believe (rightly or wrongly) that cooperating with

the investigation is in his interest.” Ante, at 9. But it is

——————

serted his right to an attorney, courts must presume he does “not feel

sufficiently comfortable with the pressures of custodial interrogation to

answer questions without an attorney. This discomfort is precisely the

state of mind that Edwards presumes to persist . . . .” 486 U. S., at 684.

We held in Roberson that just because different police come to speak

about a different investigation, that presumption does not change:

“[T]here is no reason to assume that a suspect’s state of mind is in any

way investigation-specific.” Ibid. Nor is there any reason to believe

that it is arrest specific.

9 The compulsion is heightened by the fact that “[t]he uncertainty of

fate that being released from custody and then reapprehended entails

is, in some circumstances, more coercive than continual custody.”

Strauss, Reinterrogation, 22 Hastings Const. L. Q. 359, 390 (1995).

10 Not only is this a likely effect of reinterrogation, but police may use

this effect to their advantage. Indeed, the Court’s rule creates a

strange incentive to delay formal proceedings, in order to gain addi­

tional information by way of interrogation after the time limit lapses.

The justification for Fifth Amendment rules “must be consistent with

. . . practical realities,” Roberson, 486 U. S., at 688 (KENNEDY, J.,

dissenting), and the reality is that police may operate within the

confines of the Fifth Amendment in order to extract as many confes­

sions as possible, see Leo & White, Adapting to Miranda: Modern

Interrogators’ Strategies for Dealing with the Obstacles Posed by

Miranda, 84 Minn. L. Rev. 397 (1999). With a time limit as short as 14

days, police who hope that they can eventually extract a confession may

feel comfortable releasing a suspect for a short period of time. The

resulting delay will only increase the compelling pressures on the

suspect.

Cite as: 559 U. S. ____ (2010) 7

STEVENS, J., concurring in judgment

not apparent why that is the case. The answer, we are

told, is that once a suspect has been out of Miranda cus­

tody for 14 days, “[h]e has likely been able to seek advice

from an attorney, family members, and friends.” Ante, at

8. This speculation, however, is overconfident and only

questionably relevant. As a factual matter, we do not

know whether the defendant has been able to seek advice:

First of all, suspects are told that if they cannot afford a

lawyer, one will be provided for them. Yet under the

majority’s rule, an indigent suspect who took the police at

their word when he asked for a lawyer will nonetheless be

assumed to have “been able to seek advice from an attor­

ney.” Second, even suspects who are not indigent cannot

necessarily access legal advice (or social advice as the

Court presumes) within 14 days. Third, suspects may not

realize that they need to seek advice from an attorney.

Unless police warn suspects that the interrogation will

resume in 14 days, why contact a lawyer? When a suspect

is let go, he may assume that the police were satisfied. In

any event, it is not apparent why interim advice matters.11

In Minnick v. Mississippi, 498 U. S. 146, 153 (1990), we

held that it is not sufficient that a detainee happened to

speak at some point with a lawyer. See ibid. (noting that

“consultation with an attorney” does not prevent “persis­

tent attempts by officials to persuade [a suspect] to waive

his rights” or shield against the “coercive pressures that

accompany custody”). If the actual interim advice of an

attorney is not sufficient, the hypothetical, interim advice

of “an attorney, family members, and friends,” ante, at 8,

is not enough.

——————

11 It is important to distinguish this from the point that I make above

about indigent suspects. If the police promise to provide a lawyer and

never do so, it sends a message to the suspect that the police have lied

and that the rights read to him are hollow. But the mere fact that a

suspect consulted a lawyer does not itself reduce the compulsion when

police reinterrogate him.

8 MARYLAND v. SHATZER

STEVENS, J., concurring in judgment

The many problems with the Court’s new rule are exac­

erbated in the very situation in this case: a suspect who is

in prison. Even if, as the Court assumes, a trip to one’s

home significantly changes the Edwards calculus, a trip to

one’s prison cell is not the same. A prisoner’s freedom is

severely limited, and his entire life remains subject to

government control. Such an environment is not condu­

cive to “shak[ing] off any residual coercive effects of his

prior custody.” Ante, at 11.12 Nor can a prisoner easily

“seek advice from an attorney, family members, and

friends,” ante, at 8, especially not within 14 days; prison­

ers are frequently subject to restrictions on communica­

tions. Nor, in most cases, can he live comfortably knowing

that he cannot be badgered by police; prison is not like a

normal situation in which a suspect “is in control, and

need only shut his door or walk away to avoid police badg­

ering.” Montejo v. Louisiana, 556 U. S. ___, ___ (2009)

(slip op., at 16). Indeed, for a person whose every move is

controlled by the State, it is likely that “his sense of de­

pendence on, and trust in, counsel as the guardian of his

interests in dealing with government officials intensified.”

United States v. Green, 592 A. 2d 985, 989 (D. C. 1991); cf.

Minnick, 498 U. S., at 153 (explaining that coercive pres­

sures “may increase as custody is prolonged”).13 The Court

——————

12 Cf. Orozco v. Texas, 394 U. S. 324, 326 (1969) (holding that a sus­

pect was in custody while being held in own home, despite his comfort

and familiarity with the surroundings); Mathis v. United States, 391

U. S. 1, 5 (1968) (holding that a person serving a prison sentence for

one crime was in custody when he was interrogated in prison about

another, unrelated crime); Miranda v. Arizona, 384 U. S. 436, 478

(1966) (“[W]hen an individual is . . . deprived of his freedom by the

authorities in any significant way and is subjected to questioning, the

privilege against self-incrimination is jeopardized”).

13 Prison also presents a troubling set of incentives for police. First,

because investigators know that their suspect is also a prisoner, there

is no need formally to place him under arrest. Thus, police generally

can interview prisoners even without probable cause to hold them.

Cite as: 559 U. S. ____ (2010) 9

STEVENS, J., concurring in judgment

ignores these realities of prison, and instead rests its

argument on the supposition that a prisoner’s “detention

. . . is relatively disconnected from their prior unwilling­

ness to cooperate in an investigation.” Ante, at 14. But

that is not necessarily the case. Prisoners are uniquely

vulnerable to the officials who control every aspect of their

lives; prison guards may not look kindly upon a prisoner

who refuses to cooperate with police. And cooperation

frequently is relevant to whether the prisoner can obtain

parole. See, e.g., Code of Md. Regs., tit. 12, §08.01.18(A)(3)

(2008). Moreover, even if it is true as a factual matter

that a prisoner’s fate is not controlled by the police who

come to interrogate him, how is the prisoner supposed to

know that? As the Court itself admits, compulsion is

likely when a suspect’s “captors appear to control [his]

fate,” ante, at 7 (internal quotation marks omitted). But

when a guard informs a suspect that he must go speak

with police, it will “appear” to the prisoner that the guard

and police are not independent. “Questioning by captors,

who appear to control the suspect’s fate, may create mutu­

ally reinforcing pressures that the Court has assumed will

weaken the suspect’s will.” Illinois v. Perkins, 496 U. S.

292, 297 (1990) (emphasis added).14

——————

This means that police can interrogate suspects with little or no evi­

dence of guilt, and police can do so time after time, without fear of

being sued for wrongful arrest. Second, because police know that their

suspect is otherwise detained, there is no need necessarily to resolve

the case quickly. Police can comfortably bide their time, interrogating

and reinterrogating their suspect until he slips up. Third, because

police need not hold their suspect, they do not need to arraign him or

otherwise initiate formal legal proceedings that would trigger various

protections.

14 The Court attempts to distinguish detention in prison from the

“paradigm Edwards case,” ante, at 7, but it is not clear why that is so.

The difference cannot be simply that convicted prisoners’ “detention . . .

is relatively disconnected from their prior unwillingness to cooperate in

an investigation,” ante, at 14, because in many instances of pretrial

10 MARYLAND v. SHATZER

STEVENS, J., concurring in judgment

III

Because, at the very least, we do not know whether

Shatzer could obtain a lawyer, and thus would have felt

that police had lied about providing one, I cannot join the

Court’s opinion. I concur in today’s judgment, however, on

another ground: Even if Shatzer could not consult a law­

yer and the police never provided him one, the 2½-year

break in custody is a basis for treating the second interro­

gation as no more coercive than the first. Neither a break

in custody nor the passage of time has an inherent, cura­

——————

custody, the custody will continue regardless of whether a detainee

answers questions. Take Roberson for example. Roberson was arrested

and being held for one crime when, days later, a different officer inter­

rogated him about a different crime. 486 U. S., at 678. Regardless of

whether he cooperated with the second investigation, he was still being

held for the first crime. Yet under the Court’s analysis, had Roberson

been held long enough that he had become “accustomed” to the deten­

tion facility, ante, at 14, there would have been a break in custody

between each interrogation. Thus, despite the fact that coercive pres­

sures “may increase as custody is prolonged,” Minnick, 498 U. S., at

153, the real problem in Roberson may have been that the police did not

leave him sitting in jail for long enough.

This problem of pretrial custody also highlights a tension with the

Court’s decision last Term in Montejo v. Louisiana, 556 U. S. ___

(2009). In Montejo, the Court overturned Michigan v. Jackson, 475

U. S. 625, 636 (1986), which had protected an accused’s Sixth Amend­

ment right to counsel by “forbidding police to initiate interrogation of a

criminal defendant once he has requested counsel at an arraignment or

similar proceeding.” 556 U. S., at ___ (slip op., at 1). In so doing, the

Court emphasized that because the Edwards “regime suffices to protect

the integrity of ‘a suspect’s voluntary choice not to speak outside his

lawyer’s presence,’ before his arraignment, it is hard to see why it

would not also suffice to protect that same choice after arraignment.”

556 U. S., at ___ (slip op., at 15) (quoting Texas v. Cobb, 532 U. S. 162,

175 (2001) (KENNEDY, J., concurring); citation omitted). But typically,

after arraignment, defendants are released on bail or placed in deten­

tion facilities, both of which, according to the majority’s logic, some­

times constitute breaks in custody. How then, under the Court’s

decision today, will Edwards serve the role that the Court placed on it

in Montejo?

Cite as: 559 U. S. ____ (2010) 11

STEVENS, J., concurring in judgment

tive power. But certain things change over time. An

indigent suspect who took police at their word that they

would provide an attorney probably will feel that he has

“been denied the counsel he has clearly requested,”

Roberson, 486 U. S., at 686, when police begin to question

him, without a lawyer, only 14 days later.15 But, when a

suspect has been left alone for a significant period of time,

he is not as likely to draw such conclusions when the

police interrogate him again.16 It is concededly “impossi­

ble to determine with precision” where to draw such a line.

Barker v. Wingo, 407 U. S. 514, 521 (1972). In the case

before us, however, the suspect was returned to the gen­

eral prison population for 2½ years. I am convinced that

——————

15 The Court responds that “[i]f confidence in the police’s promise to

provide counsel were the touchstone, Edwards would not have applied

in Minnick, where the suspect in continuing custody actually met with

appointed counsel.” Ante, at 17–18. But my view is not that “confi­

dence in the police’s promise to provide counsel” is “the touchtone.”

Ante, at 17. Rather, my view is that although an appropriate break in

custody will mitigate many of the reasons that custodial reinterrogation

of a suspect who requested counsel is inherently compelling, it will not

mitigate the effect of an indigent detainee believing that he has “been

denied the counsel he has clearly requested,” Roberson, 486 U. S., at

686. If police tell an indigent suspect that he is not required to speak

without an attorney, and that they will provide him with an attorney,

and that suspect asserts his right to an attorney, but police nonetheless

do not provide an attorney and reinterrogate him (even if there was a

break in custody between the interrogations), the indigent suspect is

likely to feel that the police lied to him or are ignoring his rights. This

view is not in tension with Minnick. Minnick holds only that consulta­

tion with an attorney between interrogations is not sufficient to end the

Edwards presumption and therefore that when there has been no break

in custody, “counsel’s presence at interrogation,” 498 U. S., at 152, is

necessary to address the compulsion with which the Edwards line of

cases is concerned.

16 I do not doubt that some of the compulsion caused by reinterrogat­

ing an indigent suspect without providing a lawyer may survive even a

break in custody and a very long passage of time. The relevant point

here is more limited: A long break in time, far longer than 14 days,

diminishes, rather than eliminates, that compulsion.

12 MARYLAND v. SHATZER

STEVENS, J., concurring in judgment

this period of time is sufficient. I therefore concur in the

judgment.