Petition for Writ of Certiorari — Kyle Trevor Flack, Petitioner v. Kansas
Supreme Court briefSep 24, 2024
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CAPITAL CASE
No. 2_-____
In the Supreme Court of the United States
________________________________________
KYLE T. FLACK,
Petitioner
v.
STATE OF KANSAS,
Respondent
________________________________________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE KANSAS SUPREME COURT
________________________________________
PETITION FOR A WRIT OF CERTIORARI
________________________________________
Clayton J. Perkins,
Counsel of Record
Caroline M. Zuschek
Kathryn D. Stevenson
Hope E. Faflick Reynolds
KANSAS CAPITAL
APPELLATE DEFENDER
OFFICE
300 SW 8th St., Ste. 303
Topeka, KS 66603
(785) 368-6587
cperkins@sbids.org
Counsel for Petitioner, Mr.
Kyle Flack
i
QUESTIONS PRESENTED
In Miranda v. Arizona, the Court announced prophylactic rules deemed
necessary to safeguard the Fifth Amendment privilege against self-incrimination,
including an individual's "right to cut off questioning" during custodial interrogation.
384 U.S. 436, 474 (1966); Michigan v. Mosley, 423 U.S. 96, 103-04 (1975). Since then,
the Court has reiterated that whether a suspect unambiguously invoked his Miranda
rights requires an "objective inquiry." Berghuis v. Thompkins, 560 U.S. 370, 381
(2010); Davis v. United States, 512 U.S. 452, 459 (1994); see also Connecticut v.
Barrett, 479 U.S. 523, 529 (1987) ("Interpretation is only required where the
defendant's words, understood as ordinary people would understand them, are
ambiguous."). And yet, lower courts remain deeply divided on how and when an
individual invokes "the right to cut off questioning," and whether speculation into an
individual's subjective motivations may render a plain Miranda invocation
ambiguous. The questions presented are:
1. During a custodial interrogation, may police ignore an individual's repeated
and unambiguous demands to "cut off questioning"?
2. May speculation into an individual's subjective motivations provide the
context that renders an otherwise plain Miranda invocation ambiguous?
ii
PARTIES TO THE PROCEEDING
Petitioner is Kyle T. Flack. Respondent is the State of Kansas. Neither party is a
corporation. Rule 29.6.
RELATED PROCEEDINGS
Kansas Supreme Court:
State v. Kyle T. Flack, 541 P.3d 717 (Kan. 2024).
iii
TABLE OF CONTENTS
Page
QUESTION PRESENTED...........................................i
PARTIES TO THE PROCEEDING ........................... ii
RELATED PROCEEDINGS ...................................... ii
TABLE OF CONTENTS ........................................... iii
TABLE OF AUTHORITIES ....................................... vi
PETITION FOR WRIT OF CERTIORARI ................. 1
INTRODUCTION ........................................................ 1
OPINIONS BELOW .................................................... 3
JURISDICTION .......................................................... 3
CONSTITUTIONAL AND STATUTORY .................. 3
STATEMENT OF THE CASE .................................... 4
A. Factual Background ......................................... 4
B. Procedural History ........................................... 7
REASONS FOR GRANTING THE PETITION ....... 10
I.
Police violated Mr. Flack's "right to cut off
questioning" by ignoring his repeated,
unambiguous attempts to end the
interrogation, and the Kansas Supreme
Court erred by holding otherwise....................... 12
A. Miranda and its progeny make clear that
police must terminate a custodial
interrogation when an individual
unambiguously invokes the right to cut
off questioning. ....................................... 13
B. An untenable schism exists amongst
lower courts over whether an
unambiguous invocation of the right to
iv
TABLE OF CONTENTS
(continued)
Page
cut off questioning requires police to
terminate a custodial interrogation. ..... 17
C. Intervention by the Court is necessary to
effectuate Miranda's core protections,
which police threaten by continuing to
interrogate an individual who has asked
them to stop. 21
D. Intervention by the Court is also
necessary to correct the Kansas Supreme
Court's evisceration of the "right to cut
off questioning," which culminated in this
death penalty case.................................. 24
II. The Kansas Supreme Court violated
Mr. Flack's rights under Miranda by
finding that subjective context made
the plain words he used to invoke his
rights ambiguous and insufficient. .............. 26
A. Courts remain sharply divided over
whether the plain language of an alleged
invocation controls, or whether the
context of an otherwise plain invocation
renders it ambiguous. ............................ 28
B. Intervention by this Court is necessary to
curtail Kansas's attempt to evade the
objective inquiry of an accused's
invocation required by Davis and
Berghuis.
......................................... 33
III. Mr. Flack's case provides an ideal vehicle
for reaching the questions presented. ................ 34
CONCLUSION .......................................................... 35
v
TABLE OF CONTENTS
(continued)
Page
APPENDICES
Appendix A
Kansas Supreme Court
Opinion in State v. Kyle T. Flack,
Jan. 29, 2024 ..................... 1a-88a
Appendix B
Kansas Supreme Court
Order denying rehearing in
State v. Kyle T. Flack, May 29,
2024 ................................. 89a-90a
Appendix C
Fifth Amendment to the U.S.
Constitution .................... 91a-92a
Appendix D
Fourteenth Amendment to the
U.S. Constitution ............ 93a-95a
Appendix E
Redacted Excerpts of
Interrogation of Kyle Flack, May
8, 2013 .......................... 96a-107a
vi
TABLE OF AUTHORITIES
Page(s)
CASES
Anderson v. Terhune, 516 F.3d 781 (9th Cir. 2008) . 28
Arizona v. Fulminante, 499 U.S. 279 (1991) ............ 35
Arizona v. Roberson, 486 U.S. 675 (1988) ................ 22
Berghuis v. Thompkins, 560 U.S. 370 (2010)
.......................................... i, 2, 10, 16,22,26,27,31,33
Berkemer v. McCarty, 468 U.S. 420 (1984)............... 17
Bullitt v. Commonwealth, 595 S.W.3d 106 (Ky. 2019)
................................................................................ 19
Burket v. Commonwealth, 450 S.E.2d 124 (Va. 1994)
................................................................................ 17
Clark v. State, 808 N.E.2d 1183 (Ind. 2004) ............ 20
Commonwealth v. Durand, 59 N.E.3d 1152 (Mass.
2016) ....................................................................... 20
Commonwealth v. Hearns, 10 N.E.3d 108 (Mass.
2014) ....................................................................... 29
Connecticut v. Barrett, 479 U.S. 523 (1987)
............................................................. i, 10, 13,27,33
Davis v. United States, 512 U.S. 452, 459 (1994)
.................................. i, 2, 10,11, 16, 22, 26,27, 31,33
Day v. State, No. 04-22-00494-CR, 2024 WL 3054814,
at *3 (Tex. App. June 20, 2024) ............................. 18
Deviney v. State, 112 So.3d 57 (Fla. 2013)................ 20
DeWeaver v. Runnels, 556 F.3d 995 (9th Cir. 2009) 19
Dorsey v. United States, 60 A.3d 1171 (D.C. Cir.
2013) ....................................................................... 20
Eagle v. Lumpkin, 33 F.4th 783 (5th Cir. 2022) 17, 18
Garcia v. Long, 808 F.3d 771 (9th Cir. 2015) ........... 19
Jones v. Cromwell, 75 F.4th 722 (7th Cir. 2023)...... 29
Michigan v. Mosley, 423 U.S. 96 (1975) .... i, 10, 12, 16
vii
TABLE OF AUTHORITIES
(continued)
Page(s)
Miranda v. Arizona, 384 U.S. 436 (1966)
.............................................. i, 1, 4, 10, 12-30, 32-34
Moran v. Burbine, 475 U.S. 412 (1986) .............. 12, 15
Munson v. State, 123 P.3d 1042 (Alaska 2005) .. 23, 29
People v. Grey, 975 P.2d 1124 (Colo. App. 1997) ...... 18
People v. Villasenor, 242 Cal. App. 4th 42 (2015) .... 18
People v. Williams, 233 P.3d 1000 (Cal. 2010) ......... 31
Perreault v. Smith, 874 F.3d 516 (6th Cir. 2017) ..... 31
Quisenberry v. Commonwealth, 336 S.W.3d 19 (Ky.
2011) ....................................................................... 31
Smith v. Illinois, 469 U.S 91 (1984) .................... 23,33
State v. Bradford, 484 S.E.2d 221 (W. Va. 1997) ..... 17
State v. Clifton, 892 N.W.2d 112 (Neb. 2017)........... 19
State v. Cummings, 850 N.W.2d 915 (Wis. 2014) .... 30
State v. DeJong, 845 N.W.2d 864 (Neb. 2014).......... 20
State v. Flack, 541 P.3d 717 (2024)
................................................ 3, 4-7, 9, 10, 32, 34,35
State v. Murphy, 747 N.E.2d 765 (Ohio 2001).......... 31
State v. Scott, 286 Kan. 54 (2008) ............................. 26
State v. Waloke, 835 N.W.2d 105 (S.D. 2013) ........... 19
United States v. Abdallah, 911 F.3d 201 (4th Cir.
2018) ....................................................................... 29
United States v. Rambo, 365 F.3d 906 (10th Cir.
2004) ....................................................................... 28
United States v. Sherrod, 445 F.3d 980 (7th Cir.
2006) ....................................................................... 32
viii
TABLE OF AUTHORITIES
(continued)
Page(s)
CONSTITUTION AND STATUTES
28 U.S.C. § 1257(a) ...................................................... 3
Fifth Amendment .......................... 3, 10, 12, 13, 14, 32
Fourteenth Amendment .............................................. 3
OTHER AUTHORITIES
Laurent Sacharoff, Miranda, Berghuis, and the
Ambiguous Right to Cut Off Police Questioning, 43
N. Ky. L. Rev. 389 (2016)....................................... 22
Laurent Sacharoff, Miranda's Hidden Right, 63 Ala.
L. Rev. 535 (2012) ............................................ 14, 15
Letter from William J. Brennan, J., U.S. Supreme
Court, to Earl Warren, C.J., United States
Supreme Court (May 11, 1966) ............................. 14
1
PETITION FOR WRIT OF CERTIORARI
Petitioner Kyle T. Flack respectfully petitions for a writ of certiorari to review
the judgment of the Kansas Supreme Court.
INTRODUCTION
This case presents two unsettled questions of national importance: (1) during
a custodial interrogation, may police ignore an individual's repeated and
unambiguous demands to "cut off questioning"?; and (2) may speculation into an
individual's subjective motivations provide the context that renders an otherwise
plain Miranda invocation ambiguous?
A deep divide exists amongst lower courts over whether and how Miranda's
right-to-cut-off-questioning applies when an individual unambiguously demands that
his interrogation end but when his request does not invoke the individual's right to
silence or counsel. Some courts of last resort recognize individuals may invoke the
right to cut off questioning independently of the right to silence or counsel, and
analyze whether an individual's purported invocation unambiguously communicated
a desire to terminate questioning. The Kansas Supreme Court in this case, however,
aligned itself with other state courts of last resort, which hold that the right to cut off
questioning may be invoked only in those instances where an individual
unambiguously invokes his right to silence or counsel. Unless and until this Court
clarifies that Miranda and its progeny prevent police from continuing to interrogate
2
an individual who has unambiguously expressed his desire that the interrogation
end, the breadth of the constitutional safeguards protecting one's right against selfincrimination depends wholly upon his location, and courts remain free to abrogate
Miranda's core protections, as the Kansas Supreme Court did in this case.
Likewise, a deep division amongst federal and state high courts exists over
when it is appropriate for courts to evaluate the context of an individual's otherwise
plain Miranda invocation. This Court has repeatedly held that evaluating whether a
suspect has unambiguously invoked his rights under Miranda is an "objective
inquiry." Berghuis v. Thompkins, 560 U.S. 370, 381-82 (2010) (quoting Davis v.
United States, 512 U.S. 452, 458-59 (1994)). And, in accordance with this precedent,
one line of cases expressly reject the notion that ambiguity can arise from the context
of an otherwise unambiguous invocation. In these cases, an accused's subjective
motivation for invoking Miranda has no relevance to the inquiry of whether the
accused's words, on their face, unambiguously invoked Miranda. In stark contrast, in
this case, the Kansas Supreme Court joined an increasing number of courts which
speculate into an accused's subjective motivations for invoking Miranda to provide
the context that renders an otherwise plain invocation ambiguous. Unless and until
this Court clarifies that, with regard to Miranda invocations, speculation into an
accused's possible subjective motivations is irrelevant, courts remain free to severely
restrict the constitutional safeguards upholding the privilege against selfincrimination.
3
This case presents an ideal vehicle for reaching both questions presented,
which address open divisions amongst federal and state courts on crucial issues
affecting the scope of the Fifth Amendment's privilege against self-incrimination and
the safeguards necessary to protect it. The case comes to this Court on direct appeal
from a death sentence, unencumbered by the procedural complexities commensurate
with a case at a later stage of review. The Kansas Supreme Court examined on an
undisputed record whether Mr. Flack unambiguously invoked Miranda, and the
admission of his statements greatly impact the outcome of Mr. Flack's case, and life.
The petition for a writ of certiorari should be granted.
OPINIONS BELOW
The opinion of the Kansas Supreme Court is reported at 541 P.3d 717,
Petition Appendix at 1a-88a ("App.").
JURISDICTION
The Kansas Supreme Court affirmed Mr. Flack’s convictions and sentence on
January 19, 2024, and denied his motion for rehearing on May 29, 2024. On August
7, 2024, Justice Gorsuch extended the time to file a petition for a writ of certiorari to
September 26, 2024. This Court has jurisdiction under 28 U.S.C. § 1257(a).
CONSTITUTIONAL PROVISIONS INVOLVED
The Fifth and Fourteenth Amendments to the United States Constitution are
reproduced in the appendix. App.91a-95a.
4
STATEMENT OF THE CASE
A. Factual Background
Police arrested Mr. Flack in May 2013 while investigating the death of three
adults and searching for a missing child. App. 4a. At approximately 3:30 a.m., police
read Mr. Flack his rights under Miranda v. Arizona, 384 U.S. 436 (1966), which
included the warning that Mr. Flack "c[ould] decide at any time to exercise his rights
and [] not answer any questions or make any statements[.]" App. 4a, 14a. Mr. Flack
agreed to speak with the police. App. 4a-5a, 14a. Over the hours that followed, police
interrogated Mr. Flack, recording the entirety of the encounter. App. 4a-5a. The
parties agree the video and transcript accurately reflect what transpired. App. 16a.
As the interrogation progressed and became increasingly heated, Mr. Flack
attempted numerous times to end the questioning. He repeatedly gestured to the
handcuffs he had worn during his arrest, asked police to put them back on him, and
to take him to jail. As shown below, he made ten requests to terminate the encounter.
After the police told Mr. Flack that certain details of his story did not match
what other witnesses had reported, Mr. Flack responded that he had told the truth,
requested that police put him back in handcuffs, and asked where police would take
him: "All right, whatever. So apparently we’re at a stalemate so do I put these back
on and you take me somewhere or what’s the deal?" App. 18a, 98a.
5
In response, police continued to question Mr. Flack: "Well I’m hopin’ you’ll
tell me what the hell happened out there." App. 98a. Mr. Flack insisted he had no
further information. App. 98a. But the police continued to pressure him, telling Mr.
Flack that he knew what happened to the victims and the missing child; that they
knew he was present and at least partially responsible. App. 99a. Mr. Flack denied
the allegations, and, for the second time, demanded police put him in handcuffs and
take him to jail:
I didn’t do it at all. Think I’d kill my fuckin’ friends? Then add some
fuckin’ baby, take me to jail. Y’all ain’t – nah, fuck this, man. Put these
motherfuckers on me, take me where you need to [], do your fuckin’
business. But I didn’t kill my fuckin’ friends. I didn’t kill them fuckin’
people and I didn’t fuckin’ take no baby.
App. 18a, 99a (emphases added). The police did not stop the questioning, leading Mr.
Flack to request for the third time that police handcuff him:
Detective:
Then who do we need to talk to?
Mr. Flack:
How the fuck should I know? You’re the police. Do your
fuckin’ job. Put her fucking face on the fuckin’ news all the
– we got fuckin’ red tape. That baby shoulda hit the fuckin’
news the minute you found out she was fuckin’ – somebody
had questioned it. You should had fuckin’ –
Detective:
Where would we go to find her?
Mr. Flack:
How the fuck should I know?
Detective:
‘Cause you’re the only one that does.
Mr. Flack:
You know what? Put these on.
6
Detective:
You’re the only –
Mr. Flack:
Hey – no –
Detective:
—one that knows.
App. 19a-20a, 99a-100a (emphasis added). Mr. Flack continued to deny knowing the
child's whereabouts, and demanded for the fourth time that the officers quit: "I don’t
fuckin’ know. Goddamn, quit –" App. 19a-20a, 99a-100a.
But the police continued to question Mr. Flack. Exasperated, he told police
that he had no additional information and asked for the fifth time to end the
interrogation, specifically for police to handcuff him and take him to jail:
Mr. Flack:
I don’t fuckin’ know. You know what? Wrap these up, take
me to fuckin’ jail because obviously you’re just gonna keep
fuckin’ goin’ so I can’t give you information I don’t fuckin’
have so do what you do.
App. 20a, 102a (emphasis added). But the police continued badgering Mr. Flack as if
he had said nothing, leading Mr. Flack to demand, "take me to jail," five times in
quick succession:
Mr. Flack:
[F]uckin’ take me to jail, charge me, whatever, I – we done
sat here and fuckin’ talked about it, okay? It’s that simple.
Detective:
So you’re gonna leave [L.B.] out there for nobody to freakin’
find? . . . . Okay what do they drive?
Mr. Flack:
Take me to jail.
Detective:
What do they drive?
7
Mr. Flack:
Drive – take me to jail. You – you’re –
Detective:
What are their phone numbers?
Mr. Flack:
Take me to jail.
Detective:
Kyle, this is your opportunity to help yourself . . . . Who do
you deliver for?
Mr. Flack:
Take me to jail. I’m there, I’m fuckin’ doin’ death row than
fuckin’—
App. 21a-23a, 103a-107a (emphases added). Following Mr. Flack's eighth request to
terminate the encounter, police remained silent for several seconds before resuming
their questioning. App. 74a. Following Mr. Flack's tenth request to terminate the
interrogation, he put his head down on the table to signal an end to the interview.
App. 74a. Police did not end the interview, and instead responded: "Okay. Kyle, let’s
help yourself, okay?" App. 21a-23a, 103a-107a.
Mr. Flack began to cry. App. 107a. He then implicated himself in the
homicides, stating he shot one victim, he witnessed others committing the remaining
homicides, and he assisted in disposing of evidence. App. 6a-10a.
B. Procedural History
The trial court held two pre-trial hearings on the admissibility of Mr. Flack’s
statements. The first concerned the statements' admissibility at the preliminary
hearing, and the second, their admissibility at trial. App. 13a-15a. The parties
8
established the facts surrounding Mr. Flack’s arrest and questioning, and the timing
of the Miranda warnings at the first hearing. At the second, the trial judge read the
transcript from the first hearing, and a transcript of the interrogation. (R. 16, p. 4).
The hearings centered on whether Mr. Flack invoked his right to counsel
during the interrogation and whether he gave his statements voluntarily. App. 14a15a. The trial court held that Mr. Flack never unambiguously invoked his right to
counsel and that his statements were voluntary. App. 15a. Neither the parties nor
the trial court addressed Mr. Flack's repeated requests to terminate the
interrogation. App. 15a. The trial court granted Mr. Flack a continuing objection to
the admission of his statements; counsel also objected contemporaneously to the
admission of Mr. Flack's statements at trial, and again at the close of the
prosecution’s evidence. (R. 16, p. 98-99, 101-104; R. 46, p. 2575, 2593-95, 2607-09; R.
47, p. 2664, 2712-13; R. 56, p. 5007).
During trial, the jury viewed the recording of Mr. Flack's interrogation, which
the court admitted into evidence, and the State heavily relied on Mr. Flack's
statements as a basic blueprint for how the victims died, arguing that the homicides
occurred much as Mr. Flack had described them, except that he was solely responsible
for each of the murders. App. 11a. The State again relied on Mr. Flack's statements
to argue that the jury should impose the death penalty. App. 12a. The jury convicted
Mr. Flack of first-degree murder and capital murder and unanimously agreed to
impose the penalty of death. App. 12a-13a.
9
Majority Opinion
On direct appeal to the Kansas Supreme Court, Mr. Flack argued that his
repeated demands that police "take [him] to jail" required officers to end the
interrogation and "cut off questioning" under Miranda. Although the trial court had
not addressed Mr. Flack's "take me to jail" invocations, the Kansas Supreme Court
considered the merits of the argument as asserted error in a capital case. App. 13a,
15a. It found review possible because the issue arose on undisputed facts preserved
by a video recording and transcript of the interrogation. App. 13a, 15a.
The Kansas Supreme Court held that the district court did not error by
admitting Mr. Flack's statements because the "statements did not unambiguously
and unequivocally assert his right to silence." App. 23a-24a. The court determined
that Mr. Flack's repeated demands to be taken to jail could have been "an expression
of frustration and anger," a "recognition of his difficult predicament," or a
"negotiat[ion] tactic," and because his statements were open to "multiple
interpretations," it "render[ed] his communications unclear." App. 18a-23a.
Dissenting Opinion
Justice Evelyn Wilson dissented, finding Mr. Flack's final four "take-me-tojail" requests together unambiguously invoked Miranda, requiring police to
terminate the interrogation. App. 71a. Justice Wilson recognized that the law
requires courts to evaluate invocations using an objective standard, which asks what
a reasonable officer would have understood the accused to have said, rather than a
10
subjective standard that examines what the officers did understand. She concluded
that when Mr. Flack "repeated his precise request to be taken to jail over and over,"
that such "exact repetition" could not fairly be viewed "as anything other than an
attempt to terminate the conversation." App. 71-72a, 78a. Justice Wilson criticized
the majority for undermining Miranda "by penalizing [Mr.] Flack for failing to utter
the proper incantation – despite his repeated, clear requests that the detectives take
him to jail, which would necessarily [have] terminate[d] the interview." App. 88a.
REASONS FOR GRANTING THE PETITION
In Miranda v. Arizona, the Court pronounced prophylactic rules deemed
necessary to safeguard the Fifth Amendment privilege against self-incrimination,
including an individual's "right to cut off questioning" during custodial interrogation.
384 U.S. 436, 474 (1966); Michigan v. Mosley, 423 U.S. 96, 103-04 (1975) ("Through
the exercise of [an accused's] option to terminate questioning, he can control the time
at which the questioning occurs, the subjects discussed, and the duration of the
interrogation."). In Davis v. United States, 512 U.S. 452, 459 (1994), this Court held
that determining whether an individual unambiguously invoked his rights under
Miranda requires an objective inquiry, which examines whether the accused
"articulate[d] his desire to [invoke his rights] sufficiently clearly that a reasonable
police officer in the circumstances would understand the statement to be [an
invocation]." See also Berghuis v. Thompkins, 560 U.S. 370, 381-82 (2010);
Connecticut v. Barrett, 479 U.S. 523, 528 (1987) ("Interpretation is only required
11
where the defendant's words, understood as ordinary people would understand them,
are ambiguous.").
The Kansas Supreme Court's decision in Mr. Flack's case runs afoul of
Miranda, Berghuis, Davis, and Barrett. The Kansas Court nullified an accused's right
to cut off questioning—a safeguard deemed constitutionally necessary by this Court—
by considering only whether Mr. Flack's repeated requests "take me to jail"
unambiguously invoked his right to remain silent, and not whether a reasonable
officer under the circumstances would have understood Mr. Flack's unambiguous
invocation of the right to cut off questioning.
Further, the decision below speculated as to Mr. Flack's potential subjective
motivations for attempting to terminate the encounter, concluding that they provided
context that rendered his requests "take me to jail" ambiguous, and therefore
insufficient to invoke Miranda. This reasoning violated this Court's directive that
courts must assess invocations using an objective inquiry, and that interpretation is
unnecessary unless the language is ambiguous on its face.
The Kansas Supreme Court's erroneous reasoning on both accounts cannot
be squared with this Court's jurisprudence. Yet, the decision below joins open
divisions amongst federal and state high courts on both issues. A split exists amongst
lower courts on whether police may ignore an accused's plain attempt to end an
interrogation if the attempt did not invoke the right to silence or counsel. Likewise,
a split amongst lower courts exists as to whether an accused's subjective motivations
12
for attempting to end an interrogation provides "context" that can render otherwise
plain words ambiguous. As a result, significant confusion exists in the lower courts
over how to analyze a suspect's unambiguous request to terminate an interrogation,
and if and when courts may consider any subjective criteria within the objectiveinquiry analysis. This Court should grant certiorari to clarify the correct standards
for evaluating Miranda invocations, and to harmonize Fifth Amendment law on these
issues of fundamental importance.
I.
Police violated Mr. Flack's "right to cut off questioning" by ignoring
his repeated, unambiguous attempts to end the interrogation, and the
Kansas Supreme Court erred by holding otherwise
Miranda and its progeny definitively established an individual's "right to cut
off questioning" when subjected to custodial interrogation. Miranda, 384 U.S. at 474;
Mosley, 423 U.S. at 103-04. But courts disagree over whether an individual may
invoke this right independently of the rights to silence or counsel—a question this
Court has yet to squarely address.
Nonetheless, this Court's jurisprudence compels the conclusion that "the right
to cut of questioning" guarantees a suspect the right to end an interrogation that is
broader than and distinct from his right to silence or counsel. Instead, the right to
cut off questioning is, in the Court's own words, one of the "power[s]" Miranda
safeguarded for the individual, which permits him "to exert some control over the
course of the interrogation." Moran v. Burbine, 475 U.S. 412, 426 (1986). The Court
safeguarded this right to counteract the "inherently compelling pressures [of
13
custodial interrogation] which work to undermine the individual's will to resist and
to compel him to speak where he would not otherwise do so freely." Miranda, 384 U.S.
at 467. Permitting police to continue badgering an individual who unambiguously
requests to end a custodial interrogation violates the letter and spirit of Miranda.
A.
Miranda and its progeny make clear that police must
terminate a custodial interrogation when an individual
unambiguously invokes the right to cut off questioning.
Whether police may continue a custodial interrogation of an individual who
unambiguously invokes his right to "cut off questioning" (i.e., to end the interrogation)
when that request does not directly invoke the right to silence or counsel presents an
issue of first impression for this Court. This Court's jurisprudence and Miranda's
history lead to the conclusion that the Kansas Court's decision here—which narrowed
the right to cut off questioning to only those instances involving an unambiguous
request to remain silent or to counsel—is wrong.
In Miranda, the Court recognized "that without proper safeguards," custodial
interrogation "contains inherently compelling pressures which work to undermine
[an] individual's will to resist and to compel him to speak where he would not
otherwise . . . ." 384 U.S. at 467. Accordingly, "to combat these pressures and to permit
a full opportunity to exercise the privilege against self-incrimination," id., the Court
"adopted prophylactic rules designed to insulate the exercise of Fifth Amendment
rights from the government 'compulsion, subtle or otherwise,' that 'operates on the
individual to overcome free choice in producing a statement[.]'" Barrett, 479 U.S. at
14
528 (quoting Miranda, 384 U.S. at 474). Thus, before police may obtain a custodial
statement from an individual for later use at trial, they must inform the individual
of certain rights, and must follow certain procedures once the individual invokes his
rights. Miranda, 384 U.S. at 444-45, 473-74. For instance, Miranda requires police to
terminate the custodial interrogation of an individual following his request to remain
silent or for counsel. Id.
But to adequately safeguard the fundamental Fifth Amendment privilege
against self-incrimination, Miranda also recognized "the right to cut off questioning."
Id. at 474. The history behind the inclusion of this language is enlightening. While
Chief Justice Warren's draft opinion of Miranda commanded police to cease
questioning following a custodial suspect's invocation of the right to silence or
counsel, it did not state that an accused had the "right to cut off questioning." Laurent
Sacharoff, Miranda's Hidden Right, 63 Ala. L. Rev. 535, 551 (2012) (citing Draft
Opinion of Chief Justice Earl Warren, at 31, Miranda, 384 U.S. 436 (May 9, 1966)
(Nos. 584, 759-610) (unpublished draft opinion on file with the Library of Congress)).
After Chief Justice Warren circulated the draft opinion, however, Justice
Brennan suggested changes, noting that "a problem" that "appears" is whether the
"right to silence" means merely a right not to answer questions, or additionally, a
right to control the course of questioning. Letter from William J. Brennan, J., U.S.
Supreme Court, to Earl Warren, C.J., United States Supreme Court, at 16 (May 11,
1966)
(hereinafter
J.
Brennan's
Letter),
https://www.loc.gov/static/research-
15
centers/law-library-of-congress/images/lib-guides/miranda/william-j-brennanmemorandum-to-earl-warren.pdf. Justice Brennan recognized that the draft opinion
emphasized the right to control questioning as a necessary safeguard to protect the
accused, and questioned why an accused would not be told such: "the accused must
be told only that he need not answer[;] should he not be told of his full power?" J.
Brennan's Letter, at 16. In response to Justice Brennan's critique, Chief Justice
Warren's law clerks agreed that "the individual has a right to call off the
interrogation," but advised against including this right in the required warnings
because it differed from the FBI warnings on which it had based Miranda's language.
Sacharoff, Miranda's Hidden Right, 63 Ala. L. Rev. at 552 (quoting Memorandum
from Jim Hale et al., Law Clerks for Chief Justice Earl Warren, Supreme Court of
the United States, to Chief Justice Earl Warren, Supreme Court of the United States
(May 13, 1966) (on file with the Library of Congress)).
Ultimately, the Miranda court clarified that the accused has the "right to cut
off questioning," and acknowledged that without this "right," "the setting of incustody interrogation operates on the individual to overcome free choice in producing
a statement after the privilege has been once invoked." 384 U.S. at 474; see also
Moran, 475 U.S. at 426 (acknowledging that to counter the coercive pressures of a
custodial interrogation, Miranda gave "the defendant the power to exert some control
over the course of the interrogation.") (emphasis in original).
16
Miranda thus enshrined an individual's power to end a custodial interrogation
by invoking his right to silence, right to counsel, or right to terminate the interview
itself: if the individual "indicates in any manner that he does not wish to be
interrogated, the police may not question him." 384 U.S. at 445.
The Court reemphasized the right to cut off questioning in Mosley. 423 U.S. at
103-04. While Mosley addressed when police may constitutionally resume
questioning an accused who unambiguously invoked his right to silence, the Court
stressed the right to terminate questioning was the "critical safeguard" at issue:
Through the exercise of [an accused's] option to terminate questioning,
he can control the time at which the questioning occurs, the subjects
discussed, and the duration of the interrogation. The requirement that
law enforcement authorities must respect a person's exercise of that
option counteracts the coercive pressures of the custodial setting.
Mosley, 423 U.S. at 103-04 (emphasis added). Mosley thus highlights key differences
between the rights to silence and to terminate questioning. The right to silence gives
an individual the power to not speak in response to police interrogation, whereas the
right to terminate questioning permits the accused to control when police question
him, for how long, and on what topics.
Since Mosley, the Court has clarified how individuals must invoke the rights
to counsel or silence to require police to cease a custodial interrogation. Berghuis, 560
U.S. at 381-82; Davis, 512 U.S. at 458-59. But nothing in those precedents abrogate
the right to cut off questioning, or narrow the breadth of the right to only those
instances where an individual invokes his right to silence or counsel. The Court
17
granted individuals the right to cut off questioning as a constitutional standard
necessary to protect the privilege against self-incrimination; individuals must be able
to invoke the right independent from the rights to remain silent or to counsel.
Berkemer v. McCarty, 468 U.S. 420, 433 (1984) (noting that Miranda adopted
constitutional standards for protection of the privilege); see also Eagle v. Lumpkin,
33 F.4th 783, 792-93 n.34 (5th Cir. 2022) ("The Miranda Court made clear that the
right to terminate police questioning is of a constitutional dimension (even though
the police are not required to warn the defendant that he has such a right).")
B.
An untenable schism exists amongst lower courts over whether
an unambiguous invocation of the right to cut off questioning
requires police to terminate a custodial interrogation.
Despite the wealth of authority acknowledging that Miranda established the
"right to cut off questioning," a sharp divide exists amongst courts over whether and
how that right applies when an individual unequivocally requests to end an
interrogation, but the request does not invoke the right to counsel or silence.
1. Some courts find a defendant's statements inadmissible at trial where police
fail to terminate an interrogation following an accused's unambiguous request to cut
off questioning, regardless of whether the accused separately invoked the right to
silence or to counsel. See, e.g., Burket v. Commonwealth, 450 S.E.2d 124, 132 (Va.
1994) (finding defendant did not invoke his "right to remain silent or his right to
terminate questioning") (emphasis added); State v. Bradford, 484 S.E.2d 221, 228 (W.
Va. 1997) ("To assert the Miranda right to terminate police interrogation, the words
18
or conduct must be explicitly clear that the suspect wishes to terminate all
questioning . . . ."); Day v. State, No. 04-22-00494-CR, 2024 WL 3054814, at *3 (Tex.
App. June 20, 2024) (applying Ramos post-Berghuis, and holding that an accused has
invoked Miranda if he unambiguously requests "to terminate the interview or to
invoke the right to silence."); see also Eagle, 33 F. 4th at 792-93 n.34 (recognizing the
distinct "right to terminate police questioning" as one of "constitutional dimension").
Under this line of cases, when the suspect says "take me home," or "take me to
jail," or "I'm done," the court analyzes whether the statement clearly and
unequivocally communicated a desire to terminate questioning. See, e.g., People v.
Villasenor, 242 Cal. App. 4th 42, 64-66, 69 (2015) (finding juvenile defendant who
asked to be taken home 13 times in the span of 14 minutes "meant to invoke his right
to end the interrogation"; describing test as whether the accused "unambiguously
demanded that the interrogation end" and holding that "[b]ecause the interrogation
continued despite defendant's repeated unambiguous demands for it to end,
his Miranda right to cut off questioning was violated."); People v. Grey, 975 P.2d 1124,
1130 (Colo. App. 1997) (remanding case for lower court to consider "whether a
reasonable police officer would understand the [accused's] statement and conduct at
issue to be an unequivocal and unambiguous assertion of the right to terminate
questioning" when accused told interrogators he was "tired of them fucking with him"
and police prevented him from leaving).
19
2. Another line of cases hold that an individual may invoke the right to cut off
questioning only by unambiguously invoking the right to silence or counsel. See, e.g.,
Garcia v. Long, 808 F.3d 771, 777 (9th Cir. 2015) ("[T]he suspect's right to cut off
police questioning is triggered only when the suspect unambiguously and
unequivocally invokes it, by invoking either the right to remain silent or the right to
counsel.") (emphasis in original); State v. Clifton, 892 N.W.2d 112, 132 (Neb. 2017)
("To invoke the right to cut off questioning, the suspect must articulate his or her
desire with sufficient clarity such that a reasonable police officer under the
circumstances would understand the statement as an invocation of the Miranda right
to remain silent.").
Under this line of cases, a second rift emerges. Some courts conclude that an
individual's repeated statements that he wants to go home or that officers should take
him to jail do not require police to stop badgering him because such statements do
not specifically invoke the right to silence or counsel. See, e.g., DeWeaver v. Runnels,
556 F.3d 995, 1002 (9th Cir. 2009) (finding reasonable officer would not have
understood accused's request to be taken back to jail as an invocation of the right to
silence); Bullitt v. Commonwealth, 595 S.W.3d 106, 117 (Ky. 2019) ("Bullitt's
statement about being taken to jail did not clearly communicate to the officer that he
wanted to remain silent or that he did not want to talk with police"); State v. Waloke,
835 N.W.2d 105, 112 (S.D. 2013) ("Waloke's statements that she wanted to go home
or that officers should just take her to jail were not unequivocal or unambiguous
20
requests to stop the interrogation. Waloke did not say that she wanted to remain
silent or did not want to speak with police anymore."); Clark v. State, 808 N.E.2d
1183, 1190 (Ind. 2004) (police did not violate accused's Miranda rights by continuing
to question him after he repeatedly requested that police "send [him] across the street
[to jail]," because he "did not expressly invoke his right to remain silent, or request
an attorney."); Commonwealth v. Durand, 59 N.E.3d 1152, 1161 (Mass. 2016) (finding
that reasonable police officer under the circumstances would not have understood
statements by accused that he "[couldn't] take any more of this" and that he "want[ed]
to go home and . . . go to bed" to be "invocation[s] of the right to silence.").
Conversely, other courts conclude that attempts to terminate an interrogation
such as "take me to jail," or "take me home," do unambiguously invoke the right to
silence because a request to terminate an interview necessarily encompasses a
request to remain silent. See, e.g., Dorsey v. United States, 60 A.3d 1171, 1189 n. 27,
1200 (D.C. Cir. 2013) (holding that by "asking to be taken back to the cellblock 'now,'
after having made several similar requests in the proceeding hour" accused "did all
he needed to do to invoke his right to end the interrogation and remain silent."); State
v. DeJong, 845 N.W.2d 864, 874 (Neb. 2014) (holding statements by accused that she
was done, tired, and wanted to go sleep invoked her right to remain silent and
required police to terminate questioning); Deviney v. State, 112 So.3d 57, 77-78 (Fla.
2013) (holding that suspect's repeated iterations of "I'm done. I'm ready to go home.
Can I leave?," along with standing up and attempting to leave, indicated "his desire
21
to end questioning" and therefore constituted a "vociferous invocation of his right to
remain silent.")
Only this Court can resolve the mass confusion amongst lower courts on these
two interrelated issues: (1) whether an individual may invoke the right to cut off
questioning independently of the rights to silence or counsel; and (2) whether
statements by an accused that unambiguously indicate a desire to end
interrogation—such as "take me to jail" or "take me home"—require police to cut off
questioning. Presently, an individual's location determines whether police must cease
badgering him, and whether subsequent statements obtained can be used against
him. Such uncertainty over the breadth of protections afforded the privilege against
self-incrimination is untenable.
C.
Intervention by the Court is necessary to effectuate Miranda's
core protections, which police threaten by continuing to
interrogate an individual who has asked them to stop.
Moreover, intervention by the Court is necessary to effectuate Miranda's core
protections. If an individual subjected to custodial interrogation uses plain words that
convey a desire to end the interview, and yet, police may continue to badger that
individual, Miranda's guarantee that suspects be free to determine whether and
when they will submit to custodial interrogation has been violated.
Indeed, it makes little sense to acknowledge that individuals have the right to
terminate a custodial interrogation while frustrating a direct invocation of that right.
To recognize only invocations of the right to silence or counsel as invocations of the
22
right to terminate questioning would "play[] a strange linguistic trick on suspects: to
end questioning, to assert one right [the right to terminate questioning], [they] must
unambiguously invoke another right [the right to counsel or silence]. [They], lay
[people], must understand . . . that the words 'remain silent' actually mean 'police
stop questioning.'" Laurent Sacharoff, Miranda, Berghuis, and the Ambiguous Right
to Cut Off Police Questioning, 43 N. Ky. L. Rev. 389, 390 (2016). This defies logic,
while allowing police and courts alike to ignore clear attempts by individuals
subjected to custodial interrogation to exert control over those interrogations: the
very thing Miranda intended that they be able to do.
Additionally, clarification that an individual's unambiguous assertion of his
desire to end a custodial interrogation requires police to cease questioning would
provide criminal-legal-system actors the type of bright-line rule this Court favors in
the Fifth-Amendment-invocation context. Arizona v. Roberson, 486 U.S. 675, 681-83
(1988) ("We have repeatedly emphasized the virtues of a bright-line rule in cases
following Edwards and Miranda.") (citing cases). Indeed, "[a] requirement of an
unambiguous invocation of Miranda rights results in an objective inquiry that avoids
difficulties of proof and . . . provides guidance to officers on how to proceed in the face
of ambiguity." Berghuis, 560 U.S. at 381-82 (quoting Davis, 512 U.S. at 458-59)
(internal citations and punctuation omitted).
And a bright-line rule is called for here, when, in the absence of definitive
guidance by the Court, lower courts increasingly examine an accused's subjective
23
motives for invoking his rights. In the absence of clarity on whether oft-seen phrases
like "Take me to jail," or "Take me home," which plainly indicate an individual's
desire to cut off questions, law enforcement and courts may speculate whether the
accused sought to end the interrogation because he desired to remain silent, or for
some other purpose.
But, as the Alaska Supreme Court cogently recognized, attempting to discern
an individual's motives for invoking Miranda threatens its guarantees:
The bright line rules articulated by Miranda and its progeny exist
precisely because it is inappropriate to require the police to make
difficult judgment calls about a defendant's underlying motivations for
invoking his rights. It will not always be apparent whether a suspect is
attempting to cut off questioning to prevent self-incrimination; or
because he is emotional, tired, angry, confused, frightened, or
overwhelmed; or because of a combination of reasons. And the cost of
clarification is simply too great: Not only would inquiry into a suspect's
motivations prove a quagmire for police interrogators, but it would
radically diminish Miranda's protections.
Munson v. State, 123 P.3d 1042, 1049 (Alaska 2005). Clarifying that police may not
continue to question a suspect who unequivocally indicates that he wants the
interrogation to end would eliminate the need for any subjective speculation. Rather,
"a statement either [would be] an assertion of the right . . . or it [would] not." Smith
v. Illinois, 469 U.S 91, 97-98 (1984) (per curiam).
24
D.
Intervention by the Court is also necessary to correct the
Kansas Supreme Court's evisceration of the "right to cut
off questioning," which culminated in this death penalty
case.
The Kansas Court's decision has narrowed the breadth of Miranda's guarantee
to the "right to cut off questioning." Mr. Flack's convictions and death sentence
represent an extreme example of how an accused's right to cut off questioning has
been eroded absent additional guidance from this Court. The case is unique amongst
"right to cut off questioning" cases because police did advise him that he could invoke
his rights at any time as part of his Miranda warnings. (R. 2, 771, 932.) Mr. Flack
tried to do so, asking ten times for police to handcuff him and "take [him] to jail."
On appeal, though he acknowledged his concomitant right to silence in one
heading, Mr. Flack argued that the police violated his Miranda rights by failing to
terminate his custodial interrogation when he exercised "his right to cut off
questioning." Compare (Appellant's Brief, 58) ("Mr. Flack's assertions of his right to
remain silent were ignored"), with, e.g., (Appellant's Brief, 51.) ("Mr. Flack's
interrogators violated his right to cut off questioning."); (Appellant's Brief, 52) ("The
transcripts reveal that Mr. Flack attempted, several times, to exercise his right to
end the interrogation, and those attempts were ignored."); (Appellant's Brief, 60)
("The central question in this case is whether Mr. Flack clearly asserted his right to
cut off questioning."); (Appellant's Brief, 64) ("Mr. Flack attempted to exercise his
25
right to cut off questioning when he told his interrogators, repeatedly, to handcuff
him and take him to jail.")
But the Kansas Supreme Court approved of continued police questioning
despite Mr. Flack's repeated pleas to be taken to jail because those pleas did not
unequivocally and unambiguously invoke his right to silence. See App. 18a ("This
plainly fails to invoke a right to remain silent."); App. 20a ("[T]aken together or
separately, he does not unambiguously invoke his right to remain silent."); App. 23a
("Flack meant 'I don't know,' rather than invoking his right to remain silent."); App.
23a ("We hold Flack did not invoke his right to remain silent by repeatedly suggesting
he be taken to jail. Isolated or combined, his statements did not unambiguously and
unequivocally assert his right to silence."). By finding Mr. Flack's repeated
invocations insufficient because they failed to invoke his right to silence, the Kansas
Supreme Court nullified a Miranda right this Court deemed necessary to safeguard
the privilege against self-incrimination, and ignored the very rights of which police
advised Mr. Flack in this case.
This is not the first time the Kansas Supreme Court has unreasonably limited
an accused's right to terminate custodial questioning. In State v. Scott, the Court
similarly held that the accused's request to delay a portion of his interrogation did
not implicate Miranda because the accused did not attempt to control the questioning
by first invoking the right to silence: "[a] suspect can decide he or she does not want
to answer questions at [any] time and invoke his or her right to remain silent, thus
26
forcing police to question him or her at a different time. However, in doing so, the
suspect must still unequivocally invoke the right [to remain silent]." 286 Kan. 54, 70–
71 (2008), overruled on other grounds by State v. Dunn, 304 Kan. 773 (2016).
The Kansas Supreme Court's refusal to recognize the full breadth of the
constitutional safeguards this Court deemed necessary to protect the privilege
against self-incrimination cannot be squared with decisions of this Court, incentivizes
lower courts to examine an accused's subjective motives for invoking Miranda, and
deepens an existing rift amongst lower courts on how police must respond to
unambiguous requests to cut off questioning. Most strikingly, it upholds Mr. Flack's
death sentence where the jury relied on his damaging statements in both phases of
his capital trial—statements that would have been deemed inadmissible as obtained
in violation of Miranda and its progeny in many other jurisdictions. The Court should
intervene to correct these disturbing injustices.
II.
The Kansas Supreme Court violated Mr. Flack's rights under
Miranda by finding that subjective context made the plain
words he used to invoke his rights ambiguous and insufficient.
This Court has reiterated that whether a suspect unambiguously invoked his
right to remain silent or to counsel under Miranda requires an "objective inquiry that
'avoid[s] difficulties of proof and . . . provide[s] guidance to officers' on how to proceed
in the face of ambiguity." Berghuis, 560 U.S. at 381-82 (quoting Davis, 512 U.S. at
458-59). It is what the suspect says that matters given that a "statement either is
such an assertion of [Miranda rights] or it is not.” Smith, 469 U.S. at 97-98 (citation
27
omitted); see also Barrett, 479 U.S. at 529 ("Interpretation is only required where the
defendant's words, understood as ordinary people would understand them, are
ambiguous.").
Despite this clear guidance, however, lower courts have developed an
increasingly entrenched conflict over whether and when speculation into an
individual's subjective purpose may provide context that renders an otherwise plain
invocation ambiguous. Some federal and state high courts have, in accordance with
Berghuis and Davis, expressly rejected arguments that an individual's otherwise
plain invocation may be rendered ambiguous through manufactured "context"—e.g.,
speculating as to an individual's subjective intent behind an invocation. An
increasing number of other federal and state high courts, however, are willing to
speculate into an individual's possible subjective motivation to provide the "context"
that renders an otherwise plain invocation ambiguous. The Kansas Supreme Court
has joined this latter group of cases, abandoning this Court's clear objective-inquirydirectives pronounced in Berghuis and Davis.
Federal and state high courts are thus in open division over the breadth of
protections afforded suspects under Miranda's safeguards. This Court should grant
certiorari to resolve this untenable split.
28
A.
Courts remain sharply divided over whether the plain language
of an alleged invocation controls, or whether the context of an
otherwise plain invocation renders it ambiguous.
1. One line of cases expressly rejects the notion that ambiguity can arise from
the context of an otherwise unambiguous invocation. Recognizing the Court's
statement in Barrett, 479 U.S. at 529, that "[i]nterpretation is only required where
the defendant's words, understood as ordinary people would understand them, are
ambiguous," this line of cases examines the context surrounding an individual's
alleged invocation only when the words used by the accused are ambiguous on their
face. For example, in Anderson v. Terhune, 516 F.3d 781, 787-88 (9th Cir. 2008) (en
banc), the United States Court of Appeals for the Ninth Circuit evaluated a state
court's conclusion that an accused's statements—that he wanted to "plead the Fifth,"
"[did]n't want to talk about this no more," and that he was "through" and wanted to
"be taken into custody"—were ambiguous when considering their context. In
reversing the State's conclusion that the accused had failed to unambiguously invoke
his Miranda rights, the Ninth Circuit Court of Appeals held that "context" could not
be "manufactured by straining" to render an otherwise unambiguous invocation of
Miranda rights invalid. Terhune, 516 F.3d at 787. Because the accused's statements
were plain on their face, and not susceptible to multiple interpretations, the Terhune
court recognized that the "context"—that is, that the accused potentially uttered the
invocations as a "statement of [his] frustration"—was irrelevant. 516 F.3d at 787-88.
See also United States v. Rambo, 365 F.3d 906, 910 (10th Cir. 2004) ("Although the
29
context and nuances of a request to end questioning can create ambiguity, they
cannot overcome a clear expression of the desire to remain silent.").
Under this line of cases, an accused's possible subjective reasons for invoking
Miranda has no relevance if the words themselves constitute an unambiguous
invocation. See, e.g., Jones v. Cromwell, 75 F.4th 722, 726 (7th Cir. 2023) (citing
Barrett, 479 U.S. at 529, for the proposition that, while courts may look to context to
interpret an invocation, courts may not rely on context to turn an unambiguous
statement into an ambiguous one in "disregard of the [statement's] ordinary
meaning."); United States v. Abdallah, 911 F.3d 201 (4th Cir. 2018) (rejecting
government's argument that context should render an unambiguous invocation
ambiguous when the accused invoked in anger, noting "no requirement [exists] that
Miranda invocations be measured, polite, or free of anger, in the assessment of the
officers to whom they are directed."); Munson, 123 P.3d at 1048-52 (rejecting State's
argument that the accused's "desire to cut off questioning became equivocal because
he evidently invoked it for a specific reason other than the one specified by the
constitution: avoiding self-incrimination" and noting that if an accused's "apparent
motives do not cast genuine doubt on what he wants (that is, to stop questioning
entirely), then the issue of why he wants it is constitutionally irrelevant.");
Commonwealth v. Hearns, 10 N.E.3d 108, 117 (Mass. 2014) ("The defendant's
statement of the reason why he invoked his Miranda protections does not render the
request ambiguous." (internal citation and punctuation omitted)).
30
2. In contrast, another line of cases examines the context of Miranda
invocations, even when the words the accused used to attempt to invoke Miranda are
plain and facially unambiguous. Under this line of cases, courts frequently find an
accused's subjective motivation for attempting to invoke Miranda creates context
critical to determining the effectiveness of the invocation. For instance, if an accused
asks for a lawyer out of frustration, or tells police he no longer wants to talk as a
negotiating tactic, then police may continue the interrogation because the accused's
motivation for attempting to invoke was not for the express purpose of protecting his
right against self-incrimination. In State v. Cummings, 850 N.W.2d 915, 926 (Wis.
2014), for example, the Wisconsin Supreme Court noted that the accused's plain
statement, "Well, then, take me to my cell. Why waste your time?" if "read literally,"
would be "a request that he be removed from the room because he was no longer
interested in talking to the officers." Yet, it concluded that because the "possibility"
existed that the accused made the statement as a "rhetorical device intended to elicit
additional information from the officers," it was ambiguous and therefore insufficient
to invoke Miranda.
The Kansas Supreme Court's decision in this case, relying in part upon
Cummings, emphasized Mr. Flack's alleged subjective intent when he asked to be
taken to jail rather than whether the phrase(s) "take me to jail" constituted a plain
invocation on its face. The Kansas Supreme Court concluded that because Mr. Flack's
requests to be taken to jail could have been motivated by his frustration, by an
31
attempt to bolster his credibility, or by a desire to negotiate with his interrogators,
the statement "take me to jail" was ambiguous in context, and therefore did not
require police to stop questioning him—whether after the first, fourth, or tenth time
he repeated it. App. 23a-34a.
While this analysis seems an obvious departure from the objective inquiry
described by Berghuis and Davis, numerous state courts of last resort, and numerous
federal Circuit Courts routinely find invocations ambiguous—not because the
accused's words were unclear, but because he did not actually mean them. See, e.g.,
Quisenberry v. Commonwealth, 336 S.W.3d 19, 33 (Ky. 2011) (holding that accused's
statement "take me to jail" was ambiguous because, while it might have been a clear
demand that questioning cease, defendant also could merely have been conceding his
predicament); People v. Williams, 233 P.3d 1000 (Cal. 2010) (finding statements,
including "I want to see my attorney cause you're all bullshitting now," ambiguous in
context because the accused could have made statements as an "expression[] of
passing frustration or animosity towards the officers," rather than for the purpose of
invoking his rights); State v. Murphy, 747 N.E.2d 765, 778-79 (Ohio 2001) (concluding
that accused's statement "I'm ready to quit talking and I'm ready to go home, too,"
did not unambiguously invoke his right to silence because what he "appear[ed] to
have wanted was to be released," and "if police were not ready to let him go, he [might]
well have wanted to keep trying to persuade them of his innocence" by continuing the
encounter); see also Perreault v. Smith, 874 F.3d 516, 520 (6th Cir. 2017) (finding that
32
accused's statement "[w]ell, then let's call the lawyer then 'cause I gave what I could"
failed to unambiguously invoke his right to counsel because he might have said it as
a "bargaining strateg[y]" or "tactic."); United States v. Sherrod, 445 F.3d 980 (7th Cir.
2006) (ruling that accused's statement that he was "not going to talk about nothin' "
was "as much a taunt—even a provocation—as it [wa]s an invocation of the right to
remain silent.”).
Because some courts rely exclusively on the plain language of an invocation to
determine if it unambiguously asserts a Miranda right while other courts rely on
context to determine if the accused subjectively intended to invoke the privilege
against self-incrimination, identical invocations by an accused have diametrically
opposed outcomes depending on jurisdiction or how willing the reviewing court is to
exert their "mastery of speculative mental gymnastics" to determine why the accused
used the words at issue. Flack, App. 76a (Wilson J., dissenting). Such inconsistency
leaves a world in which "[o]ne is forced to wonder, despite a plethora of caselaw to the
contrary, whether magic words are required . . . before a suspect clearly and
unambiguously invokes the right to silence under the Fifth Amendment." App. 77a
(Wilson J., dissenting). That is precisely the type of arbitrariness that the Davis court
sought to avoid in creating an objective-inquiry test. See Davis, 512 U.S. at 459. Mr.
Flack asks the Court to intervene, and to resolve this growing split.
33
B.
Intervention by this Court is necessary to curtail Kansas's
attempt to evade the objective inquiry of an accused's
invocation required by Davis and Berghuis.
The Court's jurisprudence makes clear that only one side of the split has taken
a constitutionally tenable position, and it is not the side the Kansas Supreme Court
took in this case.
The Court has clarified that a statement is either an invocation, or it is not.
Smith, 469 U.S at 98; see also Barrett, 479 U.S. at 529 ("interpretation [of an
invocation] is only required where the defendant's words, understood as ordinary
people would understand them, are ambiguous."). And Davis and Berghuis mandate
that the test for whether an accused unambiguously invoked Miranda is an objective
one. Berghuis, 560 U.S. at 381; Davis, 512 U.S. at 459. Reading these cases together
leads to a single conclusion: if the plain language of a statement unambiguously
invokes an accused's Miranda rights, then context, including the accused's subjective
motivation for making the statement, is irrelevant. Likewise, while police and courts
may look at the "context" of an ambiguous invocation to clarify if the accused indeed
invoked, they may not rely on context to find otherwise plain words ambiguous.
By finding to the contrary in this case, the Kansas Supreme Court misapplied
this Court's precedents. Indeed, the majority opinion never examined whether Mr.
Flack's repeated pleas to "take [him] to jail" used language that was plain on its face,
or what those words would have conveyed to a reasonable officer under the
circumstances. Nor did the opinion look at the context of Mr. Flack's interrogation to
34
clarify whether a reasonable officer would have understood those words to constitute
an invocation. Had it done so, as Justice Wilson did in the dissent, Mr. Flack's actions
of placing his head on the table and remaining silent following his tenth invocation
would have clarified that he intended to invoke his right to terminate the interview
and remain silent. App. 73a-74a. Moreover, the majority opinion ignored critical
clarifying context for Mr. Flack's statements: he was in custody, and not otherwise
free to leave the interrogation, except by returning to jail. A reasonable officer in this
situation would have recognized an individual's repeated demands during a custodial
interrogation to be handcuffed and taken to jail as unambiguous invocations of
Miranda's protections, which allow an accused to "control the time at which the
questioning occurs, the subjects discussed, and the duration of the interrogation."
Mosley, 423 U.S. at 103-04. As such, intervention by the Court is necessary to correct
the Kansas Supreme Court's troubling misapplication of controlling federal law, and
to stem the rising tide of cases employing similar logic.
III.
Mr. Flack's case provides an ideal vehicle for reaching the questions
presented.
Mr. Flack's case provides an ideal vehicle for reaching both questions
presented. First, his case comes to this Court on direct appeal from a death sentence,
unencumbered by the procedural complexities of a case on habeas review. Second, the
Kansas Supreme Court examined whether Mr. Flack unambiguously invoked
Miranda, noting that the issue arose on an undisputed record, making it plainly
35
addressable on appeal. App. 16a. Third, the majority's conclusion that Mr. Flack's
repeated pleas to "take him to jail" did not unambiguously invoke his rights under
Miranda generated a strong dissent from Justice Wilson, which highlighted the
majority's problematic and speculative reasoning. App. 71a-80a. Fourth, as explained
by Justice Wilson in her dissent, the admission of Mr. Flack's statements mattered
to the outcome of his case. App. 80a-88a. Indeed, Mr. Flack faces execution as a result
of the jury's decisions to convict him and sentence him to death—decisions based, in
large part, on his statements: i.e., "the most probative and damaging evidence" that
could have been admitted against him. Arizona v. Fulminante, 499 U.S. 279, 292
(1991) (White, J., dissenting) (quotations and citations omitted).
As a result, a decision by this Court on whether police may ignore an
unambiguous invocation of the right to cut off questioning, or use context to subsume
the plain meaning of an accused's invocation, would meaningfully impact this highstakes capital case, which warrants the extreme remedy of this Court's intervention.
CONCLUSION
For the foregoing reasons, the Court should grant Mr. Flack's petition for a writ
of certiorari.
36
Respectfully submitted.
_____________________
Clayton Perkins,
Counsel of Record
Caroline M. Zuschek
Kathryn D. Stevenson
Hope E. Faflick Reynolds
KANSAS CAPITAL
APPELLATE DEFENDER
OFFICE
300 SW 8th St., Ste. 303
Topeka, KS 66603
(785) 368-6587
cperkins@sbids.org
Counsel for Mr. Kyle Flack
September 24, 2024
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.