# State v. Pierce

> Washington Supreme Court · September 25, 1980 · 94 Wash. 2d 345

URL: https://www.frixlaw.com/law-library/cases/9617083

## Case

- **Full name:** The State of Washington, Respondent, v. Robert Thomas Pierce, Appellant
- **Court:** Washington Supreme Court
- **Decided:** September 25, 1980
- **Citations:** 94 Wash. 2d 345; 618 P.2d 62; 1980 Wash. LEXIS 1370
- **Precedential status:** Published
- **Opinion:** Dissent by Utter
- **Judges:** Brachtenbach, Utter
- **Cited by:** 14 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled in part, on other grounds by Edwards v. Arizona, 451 U.S. 477 (1981).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9617083

## Opinion text

Utter, C.J.
(dissenting) — I dissent to the majority's conclusion inasmuch as our analysis of the validity of the defendant's confession must be governed by the per se rule announced in Miranda v. Arizona, 384 U.S. 436, 474 , 16 L. Ed. 2d 694 , 86 S. Ct. 1602 , 10 A.L.R.3d 974 (1966).
The majority acknowledges, as it must, that the United States Supreme Court clearly and expressly declared in Miranda that:
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.
(Italics mine.) Miranda , at 474. On subsequent occasions, the court has repeatedly declared that this language from the Miranda decision states the applicable per se rule for assertions of the right to counsel. In Michigan v. Mosley, 423 U.S. 96 , 101 n.7, 46 L. Ed. 2d 313 , 96 S. Ct. 321 (1975), the court quoted the above passage from Miranda and explained that it "detailed" the "procedures to be followed if the person in custody asks to consult with a lawyer ..." See also Mosley, at 104 n.10; 109-10 & n.2 (White, J., concurring). In Fare v. Michael C., 442 U.S. 707, 719 , 61 L. Ed. 2d 197 , 99 S. Ct. 2560 (1979), the court observed that it had "fashioned in Miranda the rigid rule that an accused's request for an attorney is per se an invocation of his Fifth Amendment rights, requiring that all interrogation cease."
The majority rejects this per se approach required by Miranda primarily because it interprets dicta in Rhode Island v. Innis, 446 U.S. 291 , 64 L. Ed. 2d 297 , 100 S. Ct. 1682 (1980), as signalling the United States Supreme Court's abandonment of the per se rule. However, in Innis , *354 the court unambiguously stated that the above quoted passage from Miranda " outline [s] in some detail the consequences that would result if a defendant sought to invoke . . . the right to the presence of counsel". Innis, 426 U.S. at 297. Although expressly reserving the question of the continued vitality of the per se Miranda rule, Innis, 426 U.S. at 298 n.2, the Innis court did not in any way abolish or diminish this rule.
If and when the United States Supreme Court departs from its per se analysis, we will then be free to determine the appropriate analysis of the validity of a confession obtained after a request for counsel, and to decide whether a per se approach is necessary under article 1, section 9 of the Washington Constitution. However, until the United States Supreme Court ends its consistent adherence to the per se rule, we are bound by the supremacy clause to follow that rule. Accordingly, the confession in this case, obtained after a request for counsel and made during a custodial arrest prior to consultation with counsel, should be suppressed.
Horowitz, J., concurs with Utter, C.J.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9617083. Public record. Not legal advice.