stating that it makes no sense to hold that once an accused has requested counsel, “ [he] may never, until he has actually talked with counsel, change his mind and decide to speak with the police without an attorney being present”
How later courts described this case
- stating that it makes no sense to hold that once an accused has requested counsel, “ [he] may never, until he has actually talked with counsel, change his mind and decide to speak with the police without an attorney being present”
- majority rejects per se rule
Written by the judges who cited it.
The opinion
GOODWIN, Circuit Judge,
concurring and dissenting; BROWNING and ANDERSON, Circuit Judges, joining.
I agree with the majority view that a per se rule in these cases is neither necessary nor desirable.
I do not agree, however, that the frightened Mexican in this case meant, when he said, “that’s fine”, to waive then and there the right to counsel which, a moment earlier, he was still trying to invoke. Nor do I agree with the majority’s acceptance of a waiver in United States v. Pheaster, 544 F.2d 353 (9th Cir. 1976), cert. denied sub nom. Inciso v. United States, 429 U.S. 1099 , 97 S.Ct. 1118 , 51 L.Ed.2d 546 (1977). The majority’s strong reliance on Pheaster will *489 encourage trial courts to find waivers by’ prisoners where police persist in techniques which force the suspect constantly to reassert his or her right to counsel.
I would hold police interrogators to a strict standard of waiver as set forth in Johnson v. Zerbst, 304 U.S. 458 , 58 S.Ct. 1019 , 82 L.Ed. 1461 (1938), and as restated in Brewer v. Williams, 430 U.S. 387 , 97 S.Ct. 1232 , 51 L.Ed.2d 424 (1977). The waiver must be explicit, initiated by the suspect, and not in any way induced by the interrogators. Any more lenient rule simply invites the ingenious officer to invent new stratagems to produce colorable waivers of the right to counsel.
I would reverse and remand with instructions to exclude the statements Rodriguez-Gastelum made after he said he wanted an attorney.
HUFSTEDLER, Circuit Judge, with whom ELY, Circuit Judge, joins, dissenting:
The majority opinion cannot be reconciled with Miranda v. Arizona (1966) 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 , as construed in Michigan v. Mosley (1975) 423 U.S. 96 , 96 S.Ct. 321 , 46 L.Ed.2d 313 , nor with Brewer v. Williams (1977) 430 U.S. 387 , 97 S.Ct. 1232 , 51 L.Ed.2d 424 .
Miranda requires that no statement of a person in custody which is made after that person has requested counsel can be admitted unless and until the suspect has talked to his lawyer. The Supreme Court could not have chosen more explicit language to state that principle in Miranda: “If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning.” ( 384 U.S. at 474 , 86 S.Ct. at 1628 .)
The Supreme Court has read Miranda to mean what it says when the right to counsel is asserted, rather than merely the right to silence. The majority opinion in Mosley meticulously distinguishes the right to silence from the right to counsel.
When a suspect has asserted only his right to silence, and not his right to counsel, interrogation can be resumed if “ ‘his right to cut off questioning’ was ‘scrupulously honored,’ ” and if he thereafter waives his right to silence. ( 423 U.S. at 104 , 96 S.Ct. at 326 .) Statements made after questioning has been resumed are admissible upon the Government’s bearing its heavy burden of proof of waiver when only the suspect’s right to silence is involved. In contrast, however, questioning of the suspect cannot be resumed after the individual has asserted his right to counsel until the suspect has had an opportunity to consult with counsel. The majority opinion in Mosley twice states the point specifically: “The present case does not involve the procedure to be followed if the person in custody asks to consult with a lawyer since Mosley made no such request at any time. The procedures are detailed in the Miranda opinion as follows [quoting 384 U.S. at 474 , 86 S.Ct. 1602 ].” And again: “The dissenting opinion asserts that Miranda established a requirement that once a person has indicated a desire to remain silent, questioning may be resumed only when counsel is present. Post [423 U.S.] at 116-117, 96 S.Ct. at 326 . But clearly the Court in Miranda imposed no such requirement, for it distinguished between the procedural safeguards triggered by a request to remain silent and a request for an attorney and directed that ‘interrogation must cease until an attorney is present’ only ‘[i]f the individual states that he wants an attorney. 384 U.S. at 474 , 86 S.Ct. 1602 .’ ” ( 423 U.S. at 104, n. 10 , 96 S.Ct. at 326 .)
No question of waiver of counsel can arise unless and until a properly advised suspect, who has asserted his right to a lawyer (no matter how inarticulately the request has been made) has consulted his lawyer. Thereafter, if the suspect responds to resumed interrogation in his lawyer’s absence, we then inquire whether the Government has carried its burden of proving that the suspect’s statements were made after a knowing, intelligent, and vol *490 untary waiver of counsel. Accordingly, no statement made after counsel has been requested and before counsel has been furnished can be admitted without violating Miranda . The Mosley majority makes that point expressly and repeatedly.
In his concurring opinion, Mr. Justice White underlines the point that statements ' made by a suspect who has requested counsel must be excluded when those statements are obtained before the suspect has had an opportunity to consult with counsel: “As the majority points out, the statement in Miranda requiring interrogation to cease after an assertion of the ‘right to silence’ tells us nothing because it does not indicate how soon this interrogation may resume. The Court showed in the very next paragraph, moreover, that when it wanted to create a per se rule against further interrogation after assertion of a right, it knew how to do so. The Court there said ‘[i]f the individual states that he wants an attorney, the interrogation must cease until an attorney is present.’ ” (Michigan v. Mosley, supra, 423 U.S. at 109-10 , 96 S.Ct. at 329 (White, J., concurring) (citations omitted; emphasis in original).)
Miranda’s protection of the right to counsel was reinforced in Brewer v. Williams, supra, 430 U.S. 387 , 97 S.Ct. 1232 , 51 L.Ed.2d 424 . In Williams , no in-custody interrogation occurred until Williams had consulted with not one, but two lawyers. His Des Moines lawyer, McKnight, advised Williams that Des Moines police officers would pick him up and that the “officers would not interrogate him or mistreat him, and that Williams was not to talk to the officers about Pamela Powers until after consulting with him upon his return to Des Moines. . . . [I]t was agreed between McKnight and the Des Moines police officials that [the officers] would drive to Davenport to pick up Williams . . . and that they would not question him during the trip.” ( 430 U.S. at 391 , 97 S.Ct. at 1235.) Meanwhile, Williams had also consulted with another lawyer, Kelly, during his arraignment. Kelly also “advised him not to make any statements until consulting with McKnight back in Des Moines.” ( 430 U.S. at 391 , 97 S.Ct. at 1236.) The police officers obtained incriminating information during the drive. Neither of Williams’ lawyers was present.
The trial court overruled defense counsel’s Miranda objections to the admission of the incriminating statements ruling that “Williams had ‘waived his right to have an attorney present during the giving of such information.’ ” Williams appealed his murder conviction, which was affirmed by the Iowa Supreme Court in a divided opinion. A federal district court granted federal ha-beas corpus on the grounds that Williams had been denied his right to counsel, he had been denied the protection of Miranda , his statements were not voluntary, and he had not waived any of these rights. The Court of Appeals affirmed. The Supreme Court affirmed the Court of Appeals, holding that the interrogation denied Williams the right to effective assistance of counsel and that the State did not carry its burden of proving waiver. Williams held that a suspect could waive his right to counsel after counsel had been furnished to him and after he had consulted with his lawyer, but no statement of the suspect made during in-custody interrogation was admissible in the absence of counsel after the right to counsel attached, unless the State carried its burden of proving waiver.
Rodriguez’ case is very simple. Special Agent Brown of the Drug Enforcement Administration advised Rodriguez of his Miranda rights after his arrest. Rodriguez told Brown that he had no funds to hire a lawyer. Brown responded that a lawyer would be appointed for him and asked Rodriguez if he wanted to talk to the agent about the incident (driving a load car across the border carrying marihuana). According to Brown’s testimony, Rodriguez answered, “Okay, but with a lawyer too.” Despite this unmistakable request for a lawyer, Brown continued to interrogate Rodriguez, ultimately obtaining incriminating statements from him which were introduced over objection.
*491 This case presents a routine Miranda violation. Rodriguez asked for a lawyer, and the interrogation did not cease. He had no chance to talk to a lawyer because no lawyer had been furnished to him. The statements that Rodriguez gave in response to the continued questioning were flatly inadmissible under both Miranda and Mosley .
The waiver of counsel question is not even presented on this record. I would, therefore, direct the suppression of the evidence under Miranda , reverse and remand for a new trial. 1