Respondents Brief — Oregon v. Bradshaw

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No. 81-1857 | WAN 15 1007 |

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IN THE — 12 LE . —

Supreme Court of the United States

OCTOBER TERM, 1982

STATE OF OREGON, Petitioner,

JAMES EDWARD BRADSHAW, Respondent.

On Writ Of Certiorari To The Court

Of Appeals Of The State Of Oregon

BRIEF FOR RESPONDENT

*Gary D. BAaBcock

Public Defender of Oregon

JOHN DAUGIRDA

Deputy Public Defender

1655 State Street

Salem, Oregon 97310

Telephone: (503) 378-3349

Counsel for Respondent

*Counsel of Record

PRESS OF BYRON S. ADAMS PRINTING, INC., WASHINGTON, D.C.

QUESTION PRESENTED

“Does a police officer violate the limits of custodial interroga-

tion established in Edwards v. Arizona, 451 U.S. 477 (1981)

where he reinterrogates an arrestee concerning his culpability

after the arrestee had previously invoked the right to counsel

and asked the limited procedural question ‘What is going to

happen to me now?“

TABLE OF CONTENTS

Page

eee sees see ese eee i

ZZ 1.

CONSTITUTIONAL PROVISIONS INVOLVED o 1

STATUTORY PROVISIONS INVOLtddooooddz 1

Dee eee 4

SUMMARY OF THE AR .] rr 11

r ̃ ˙äAA ˙ ee 13

I. The Oregon Court Of Appeals Properly Applied The

Edwards v. Arizona Waiver Rule To The Limited

Factual Record Of The Present Case. Corporal Hays

Improperly Reopened The Criminal Investigation

By Taking Unfair Advantage Of Bradshaw’s Lim-

ited Procedural -Remarr k 13

II. The Determination Of Whether An Accused Has

Waived His Fifth Amendment Right To Counsel

Should Be Based Upon The Per Se Rule Of Edwards

eee 18

A. The Edwards rule perfectly reconciled Miran-

da’s seemingly divergent rules on the cessation

of questioning and the resumption of question-

ing in right to counsel cases ............... 19

B. The “defendant-initiated waiver” requirement

is a necessary procedural safeguard to protect

the right to counsel after assertion but before

2 Bcc ncicdescdusaccedsacosses 24

C. The Edwards rule is clear and easy to adminis-

C 27

III. This Court Should Further Clarify And Strengthen

The Edwards Waiver Rule ...................: 30

IV. The “Totality Of Circumstances” Test—A Pretext

Arrest And Unexplained Delay In Arraignment . 33

r .. ĩð 46

Appendix A—A List of Non- Initiatory Statements ... la

Appendix B—ALI, Model Code of Pre-Arraignment Pro-

cedure 42-50 (1975) (Excerpt))ʒ 4a

iii

TABLE OF AUTHORITIES

CASES: Page

Barksdale v. State, 161 Ga. 155, 291 S.E.2d 18 (1982) . 28

Blakney v. Montana, 451 U.S. 1013 (1981) .......... 27

Brown v. Illinois, 422 U.S. 590 (1975) ............. 38, 46

Caffo v. State, 247 Ga. 751, 279 S.E.2d 678 (1981) .... 29

Carnley v. Cochran, 369 U.S. 506 (1962) ............ 45

Casillo v. State, 616 S.W.2d 620 (Tex. Cr. App. 1981) 28

Cobbs v. Robinson, 528 F.2d 1331 (2d Cir. 1975), cert.

denied 424 U.S. 947 (197 0)))))):::

Coble v. State, 247 Ark. 134, 624 S. W. 2d 421 (1981), cert.

ee.

Commonwealth v. Mercier, 451 Pa. 221, 302 A. 2d 337

J77%⁵§ôͤ ſ——f— ae a

Dunaway v. New York, 442 U.S. 200 (197999 38, 46

Edwards v. Arizona, 451 U.S. 477 (1981) ......... passim

Fare v. Michael C., 442 U.S. 707 (1979) ........... 20, 26

Goodnough v. State, 627S.W.2d 841 (Tex. Cr. App. 1982) 28

James v. Illinois, 451 U.S. 1014 (1981) .............. 27

Jennings v. State, 413 So.2d 24 (Fla. 1982) .......... 28

Johnson v. Zerbst, 304 U.S. 458 (1938) .............. 44

Kennedy v. Fairman, 618 F.2d 1242 (7th Cir. 1980) .. 45

Leuschner v. Maryland, 451 U.S. 1014 (1981) ........ 27

Michigan v. Mosley, 423 U.S. 96 (1975) .......... passim

Miranda v. Arizona, 384 U.S. 436 (1966) ......... passim

Monroe v. Idaho, 451 U.S. 1014 (1981) .............. 27

Moore v. State, 261 Ark. 275, 551 S.W.2d 185 (1977) . 22

ao v. State, 336 So.2d 213 (Miss. 1976), cert. denied,

REESE . 22

Nardone v. United States, 308 U.S. 338 (1939) ....... 38

Nash v. Estelle, 597 F.2d 513 (5th Cir.), cert. denied 444

Sie GE GRPED ccccccccredesecescsccccescecece

North Carolina v. Butler, 441 U.S. 369 (1979) ....... 45

People v. Brake, 191 Colo. 390, 553 P.2d 763 (1976) .. 22

Table of Authorities Continued

People v. Cerezo, 635 P.2d 192 (Colo. 1981) .......... 28

People v. Cook, 78 Ill. App.3d 695, 397 N. E. 2d 439 (1979) 22

People v. Fioritto, 68 Cal. 2d 714, 441 P. 2d 625 (1968) 23

People v. Harris, 191 Colo. 234, 552 P. 2d 10 (1976) ... 23

People v. Medina, 37 Ill. App. 3d 1029, 347 N. E. 2d 424

eee eee eee, 23

People v. te 21 Cal.3d 231, 578 P.2d 108, cert.

denied 429 U.S. 847 (19760ꝶn0n 2. cece eeeeee

People v. Salazar, 189 Colo. 429, 541 P.2d 676 (1975) 23

Rhode Island v. Innis, 446 U.S. 291 (1980) ........ 15, 20

Richardson v. State, 247 Ark. 473, 625 S. W. 2d 504 (1981) 28

Scroggins v. State, 633 S. W. 2d 33 (Ark. 1982) 28

Silling v. State, 414 So.2d 1182 (Fla. App. 1982) ..... 28

State v. Boone, 220 Kan. 758, 556 P.2d 864 (1976) .... 22

State v. Bradshaw, 54 Or. App. 949, 636 P.2d 1011(1982) 18

State v. Brannam, 275 Ark. 16. 627 S.W.2d 8 (1982) . 28

State v. Clifton, 271 Or. 177, 531 P.2d 256 (1975) 34

State v. Dowles, 56 N.C. App. 578, 289 S.E.2d 883 (1982) 29

State v. Fitzgerald, 60 Or. App. 466, __. P. 2d

f A 0e. 28

State v. Green, 271 Or. 153, 531 P. 2d 245 (1975) ...... 34

State v. Keiper. 8 Or. App. 354, 493 P. 2d 750 (1972) .. 34

State v. Lloyd, 22 Or. App. 254, 538 P. 2d 1278 (1975). 38

State v. Marcum, 24 Wash. App. 441, 601 P. 2d 975 (1979) 23

State v. McCloskey, 90 N. J. 18, 446 A. 2d 1201 (1982). 28

State v. Newton, 291 Or. 788, 636 P. 2d 393 (1981) .... 15

State v. Piatt, 132 Ariz. 145, 644 P. 2d 881 (1982) ..... 28

State v. Taylor, 56 Or. App. 703, 643 P. 2d 378 (1981). 28

State v. West, 408 So. 2d 1114 (La. 1982) ............. 28

Sterling v. Cupp, 290 Or. 611, 625 P. 2d 123 (1981) ... 15

Stevens v. State, 265 Ind. 395, 354 N. E. 2d 727 (1976) 22

Table of Authorities Continued

Page

Street v. Surdyka, 492 F. 2d 368 (4th Cir. 1974) ...... 38

Stumes v. Solem, 671 F.2d 1150 (8th Cir. 1982) ...... 28

Tague v. Louisiana, 444 U.S. 469 (1980) ............ 45

Taylor v. Alabama, 454 U.S. 963 (1982) .......... . 38, 46

Thompson v. Wainwright, 601 F. 2d 768 (5th Cir. 1979) 22

United States v. Blair, 470 F.2d 331 (5th Cir. 1972) cert.

rr . ee ea cn

United States v. Clark, 449 F.2d 802 (4th Cir. 1974) .. 23

United States v. Downing, 655 F. 2d 404 (Ist Cir. 1981) 28

United States v. Gordon, 665 F.2d 478 (2nd Cir. 1981) 28

United States v. Grant, 549 F.2d 942 (4th Cir.), cert.

Tc“ “f gt & |. | errr

United States v. Hinckley, 672 F.2d 115 (D.C. Cir.

K 15, 28

United States v. Massey, 550 F. 2d 300 (5th Cir. 1977) 22

United States v. Priest, 409 F. 2d 491 (5th Cir. 1969) 22

United States v. Rodriguez - Gustelum, 569 F. 2d 482 (9th

Cir.), cert. denied 430 436 U.S. 919 (19789)

United States v. Thierman, 678 F. 2d 1331 (9th Cir. 1982) 28

United States v. Wilson, 571 F. 2d 455 (9th Cir. 1978). 23

United States v. Womack, 542 F. 2d 1047 (9th Cir. 1976) 23

Vaughn v. State, 248 Ga. 127, 281 S. E. 2d 594 (1981). 28

Wantland v. Maryland, 451 U.S. 1014 (198177777 27

Webb v. Stone, 258 Ark. 95, 522 S.W.2d 406 (1975) ... 22

White v. Finkbeiner, 611 F. 2d 186 (7th Cir. 1979), vacated

and remanded, 451 U.S. 1013 (1981), on remand, 687

FR Tee 23, 27

Williams v. Ohio, 452 U.S. 935 (19811))⸗ö2¶. 9: 27

Wilson v. Zant, 249 Ga. 373, 290 S.E.2d 442 (1982) .. 28

Wong Sun v. United States, 371 U.S. 471 (1963) ..... 38

Wyrick v. Fields, U. S., 51 U.S. L. W. 3411 (No.

82-158, November 29, 1982) 7 20, 27

Table of Authorities Continued

Page

CONSTITUTIONAL AND STATUTORY PROVISIONS:

e sees se 20

ee esse 19

een eee 15

Oregon Const., Article I, 5 11. 15

Oregon Revised Statutes 133.04501ijx7777 39

Oregon Revised Statutes 133.05ů) 39

Oregon Revised Statutes 133.310(1)(a), (b) ........... 36

Oregon Revised Statutes 161.56ů0 .. 36

Oregon Revised Statutes 161.57õ 777. 36

Oregon Revised Statutes 161.615(1) ................- 36

Oregon Revised Statutes 161. 63503 36

Oregon Revised Statutes 471.4102), (3)(a) ........... 35

Oregon Revised Statutes 484.010(5) ................ 37

Oregon Revised Statutes 487.540 2ᷣ᷑·ʒ 7777 37

Oregon Revised Statutes 487. 55002ᷣ· 77). 37

Oregon Revised Statutes 487.55504ĩↄq7ꝰ⸗ꝭ 38

Oregon Revised Statutes 487.560(5), (6) ............. 37

Oregon Revised Statutes 487. 7)“ -⸗õ⸗ rr 38

OTHER AUTHORITIES:

ALI Model Code of Pre-Arraignment Procedure, § 140.8

DEE Sccuduesncatacsuneneeevescenenexescsanee 23

Comment, Criminal Procedure—Self-Incrimination:

Miranda Lives, 33 U. Fla. L. Rev. 788 (1981) ... 29

Comment, Edwards v. Arizona: The Burger Court

Breathes New Life Into Miranda, 69 Cal. L. Rev.

r eee 29

Comment, Fifth Amendment -M aiver of Previously In-

voked Right to Counsel, 72 Jour. of Crim. Law &

Criminology 1288 (1981Tx;o 9 ‚9õ7õõ 29

vii

Table of Authorities Continued

Page

Comment, Waiver of Rights in Police I ations:

Miranda in the Courts, 36 U. Chi. L. Rev. 413

FF 23

Inbau & Reid, Criminal Interrogation and Confessions

Z 30

Kamisar, A Dissent from the Miranda Dissents: Some

Comments on the “New” Fifth Amendment and the

Old “Voluntariness” Test, 65 Mich. L. Rev. 59(1966) 30

Kamisar, “Edwards v. Arizona in the Lower Courts:

Applying a 4 7 Miranda,“ in Choper,

Kamisar & Tribe, Su Court: Trends and

Developments, 1981-82 (19833))))) 25, 29

LaFave, W., Arrest 379-380 (19650 15

Leiken, Police Interrogation in Colorado: The Imple-

mentation of Miranda, 47 Den. L. J. 1 (1979) .... 30

Lynch, J ations of Criminal Defendants—Some

Views on Miranda v. Arizona, 35 FORDHAM L.

J écoccecdecoesssecentaccoccesese 30

Medalie, Zeitz and Alexander, Custodial Police In-

— — in Our Nation’s Capital: The Attempt to

Imp t Miranda, 36 Mich. L. Rev. 1347 (1968). 30

Oregon State Police Manual, 101-103 (1979) .......... 30

Project, ay py in New Haven: The Impact of

Miranda, 76 Yale L. J. 1519 (1967) ............. 30

Reid and Inbau, Truth and Deception: The Polygraph

(“Lie-Detector”) Technique 8 34

Seeburger & Wettick, Miranda in Pittsburgh A Statis-

tical Study, 29 U. PITT. L. REV. 1 (1967) ...... 30

Stephens, Flanders & Cannon, Law Enforcement and the

Supreme Court: Police Perceptions of the Miranda

Requirements, 39 TENN. L. REV. 407 (1972) ... 30

Stone, The Miranda Doctrine in the Burger Court 1977

ese sss eee 2⁵

Table of Authorities Continued

Page

White, Police Trickery in Inducing Confessions, 127 U.

311 „ 30

R nterrogation of Criminal Defendants Some

iews on Miranda v. Arizona, 35 FORDHAM L.

ne ee eee 30

BRIEF FOR RESPONDENT

OPINIONS BELOW

The opinion of the Oregon Court of Appeals reversing Brad-

shaw’s conviction is reported at 54 Or. App. 949, 636 P.2d 1011

(1981). The order of the Oregon Supreme Court denying the

State’s petition for review is reported at 292 Or. 568, 644 P.2d

1129 (1982). these opinions are set forth in the Petition for

Certiorari at 10-14.

CONSTITUTIONAL PROVISIONS INVOLVED

United States — Amendment V:

“No person shall . — in any criminal case

to be a witness against —

United States Constitution, Amendment VI:

In all criminal prosecutions, the accused shall. . . have

the assistance of counsel for his defense.”

— States Constitution, Amendment XIV, § 1:

No State shall .. deprive any person of a

liberty, or property, without due process of law. .

STATUTORY PROVISIONS INVOLVED

Oregon Revised Statutes 471.410(2), (3)(a):

“(2) No person other than his parent or guardian shall

sell, give or otherwise make available an y+ coholic liquor

to any person under the age of 21 years. A person violates

this subsection if he sells, gives or otherwise makes avail-

able alcoholic liquor to a person with the knowledge that

the person will violate this subsection.

“(3) Upon violation of subsection (2) of this section, the

— 8 impose a mandatory minimum sentence as

ollows:

“(a) Upon a first conviction for the offense, a fine of

Oregon Revised Statutes 471.990(1):

“(1) Except where other punishment is specifically

provided for, violation of any provision of this chapter is a

misdemeanor.”

Oregon Revised Statutes 161.565:

“An offense is a violation if it is so designated in the

statute defining the offense or if the offense is punishable

only by a fine, forfeiture, fine and forfeiture or other civil

penalty. Conviction of a violation does not give rise to any

disability or legal disadvantage based on conviction of a

crime.”

Oregon Revised Statutes 161.575:

“(1) Any violation defined in the Oregon Criminal

Code is expressly — — in the section defining the

offense. Any offense defined outside this code which is

— as provided in ORS 161.565 shall be considered

a violation.

“(2) Violations are not classified.”

Oregon Revised Statutes 161.635(3):

“(3) A sentence to pay a fine for a violation shall be a

sentence to pay an amount, fixed by the court, not exceed-

ing $250.”

Oregon Revised Statutes 133.310(1)(a)(b):

“(1) A peace officer may arrest a person without a

warrant if the officer has probable cause to believe that

the person has committed:

“(a) A felony, a Class A misdemeanor or an unclassi-

fied offense for which the maximum penalty allowed by

law is 1 7 to or greater than the maximum penalty

allowed for a Class A misdemeanor, or a major traffic

offense as defined in ORS 484.010(5)’

“(b) Any other offense in the officer’s presence except

traffic infractions as defined in ORS 153.305.”

Oregon Revised Statutes 161.615(1):

“Sentences for misdemeanors shall be for a definite

term. The court shall fix the term of imprisonment within

the following maximum limitations:

) For a Class A misdemeanor, 1 year.”

Oregon Revised Statutes 484.010(5):

“(5) ‘Major traffic offense’ means a violation of any of

the following provisions of law or a city ordinance con-

forming thereto:

“(a) Reckless driving as defined in ORS 487.550.

“(b) Driving while under the influence of intoxicants,

as defined in ORS 487.540.

e) Failure to perform the duties of a driver involved

in an accident or collision, as defined in ORS 483.602 (1)

and (2) and 483.604.

“(d) Driving while suspended or revoked, as defined in

ORS 487.560.

de) Fleeing or attempting to elude a police officer, as

defined in ORS 487.555.

“(f) Driving after being declared to be a habitual offen-

der, as set forth in ORS 484.740.”

Oregon Revised Statutes 487.550(2):

“(2) Reckless driving is a Class A misdemeanor.”

Oregon Revised Statutes 487.540(2):

“(2) Driving while under the influence of intoxicants is

a Class A misd emeanor.”

Oregon Revised Statutes 487.560(5), (6):

“(5) Except as provided in subsection (6) of this sec-

tion, driving while suspended or revoked is a Class A

misdemeanor.

“(6) Driving while suspended or revoked is a Class C

felony if the suspension or revocation was the result of a

finding that the person is an habitual traffic offender

under ORS 484.730 or of a conviction for any of the follow-

ing offenses:

“(a) Any degree of murder, manslaughter, criminally

negligent homicide or assault resulting from the operation

of a motor vehicle.

“(b) Any crime punishable as a felony with oe of a

— element involving the operation of a motor

vehicle.

e) Failure to perform the duties of a driver involved

in an accident or collision which results in physical injury

or death to any person.

“(d) Reckless driving.

“(e) Fleeing or attempting to elude a police officer.

“(f) Driving while under the influence of intoxicants.”

Oregon Revised Statutes 487.555(4):

“(4) Fleeing or attempting to elude a police officer is a

Class A misdemeanor.”

Oregon Revised Statutes 484.740:

“Except as provided in ORS 484.735(2), it shall be un-

lawful for any person to operate a motor vehicle in this

state while the order of the court prohibiting such opera-

tion remains in effect. A person who violates this section

commits a Class C felony.”

STATEMENT OF THE CASE

A. Statement of Facts:

On Sunday, September 14, 1980, Lloyd Reynolds’ body was

found in his wrecked pickup truck along the coastal highway

near Rockport, Oregon (J.A. 6, 11; Tr. 13, 17).' Gerald Hays, a

state police corporal, commenced an investigation. Denver

Buxton, a Rockaway police officer, advised Hays that Brad-

shaw had previously reported being assaulted while drinking

at the deceased’s cabin on Saturday evening (J.A. 7; Tr. 13).

Kimberly Asher, the deceased’s girlfriend, told Hays she had

not been present at the cabin on Saturday evening (J.A. 10; Tr.

16).

On Sunday evening, Officers Hays and Buxton proceeded to

Reynolds’ cabin and conducted a warrantless search of his

J. A.“ refers to the joint appendix; Tr. refers to the transcript

of the trial court proceedings; and “Ex.2” refers to Pretrial Exhibit 2,

the transcript of Bradshaw’s tape-recorded statement to Corporal

Hays on September 14, 1980; “Ex.11” refers to Trial Exhibit 11

containing police information reports.

personal effects (J.A. 6-7; Tr. 13). Bradshaw, who resided with

his grandmother Irma Stockdale at the group of cottages,

approached the officers (J.A. 7; Tr. 13). Hays told defendant

why he was there and asked about defendant’s knowledge of

Reynolds (J.A. 8; Tr. 14). Bradshaw indicated he had pur-

chased alcoholic beverages that he and Reynolds had con-

sumed on Saturday (Tr. 117). He showed Hays two empty

whiskey bottles (Tr. 117). Hays noticed “numerous six-packs

of empty beer bottles” (Tr. 119). Bradshaw indicated others

joined them and he had been assaulted in Reynolds’ cabin on

Saturday night by a man named “Bash” (J.A. 8-9; Tr. 14-15).

Bradshaw claimed the deceased, Kimberly Asher, Cynthia

Reynolds and an unidentified man had also been present (J.A.

8-9; Tr. 14-15).

Snortly thereafter, David Bash arrived at the cabin (J. A. 10;

Tr. 6). He told the officers he had not been present at Reynolds’

cabin on Saturday night J. A. 10; Tr. 6). Based on this in-

consistency, Hays asked Bradshaw to accompany him to the

Rockaway Police Department for a taped interview (J.A. 10;

Tr. 16). Hays, who considered defendant a suspect, advised

him he was not in custody and was free to leave (J.A. 10; Tr.

17). Bradshaw voluntarily accompanied Hays to the station

(J.A. 10; Tr. 16).

At the police station, Hays advised Bradshaw of his

Miranda’ rights and the nature of the investigation he was

conducting (J. A. 46; Ex.2, at 1-2). Bradshaw, a school dropout,

acknowledged understanding these matters and that he was

free to leave (J.A. 45-47, 55; Ex.2, at 1-3, 10). He indicated his

plan to leave for St. Helens that evening and noted he had

consumed four beers earlier in the day (J.A. 45, 47; Ex.2, at 1,

3).

In a previous contact with Officer Buxton, Bradshaw described

his version of the assault in Reynolds’ cabin, and asked if the officer

would bring any charges against him for buying alcohol for Reynolds,

a 20-year old minor (J.A. 60; Ex. 2, at 14).

3 Miranda v. Arizona, 384 U.S. 436 (1966).

Hays, accompanied by Officer Buxton, questioned Brad-

shaw about Saturday’s events (J.A. 48, 56; Ex.2, at 3, 11).

Bradshaw responded that he and Reynolds drank beer and

whiskey in Reynolds’ cabin (J.A. 48-49; Ex.2, at 4). Others had

joined them, an argument ensued, and someone struck Brad-

shaw in the head knocking him unconscious (J.A. 48-53, 58;

Ex.2, at 3-8, 12). Larry Moorehead, a friend of Mrs. Stockdale,

called the police (J.A. 56; Ex.2, at 11). Officer Buxton re-

sponded, called an ambulance, and Bradshaw was taken to a

hospital for treatment (J.A. 56; Ex.2, at 11). The treating

physician indicated Bradshaw’s skull was nearly cracked (J.A.

54; Ex.2, at 9).

Bradshaw admitted buying the beer and whiskey consumed

by Reynolds. He indicated a willingness to face prosecution for

furnishing liquor to a minor, in view of the fact that Reynolds

was under the legal drinking age (J.A. 59-60; Ex.2, at 13-15).

Halfway through the interview, Bradshaw asked if he would

be charged. Hays stated, “This is possible.. . It’s very possi-

ble.” (J.A. 60; Ex.2, at 14-15).

Hays continued questioning Bradshaw (J.A. 60; Ex.2, at 15).

Bradshaw denied ever riding in Reynolds’ truck, and he admit-

ted that his right to drive in Oregon had been revoked (J.A.

62-65; Ex.2, at 16-18). He declared himself ready to help the

police in their investigation into Reynolds’ death and sug-

gested thet Reynolds may have met with “foul play” at the

hands of tl.e person who allegedly had struck Bradshaw (J.A.

66-69; Ex.2, at 21-23).

At this point, Hays placed Bradshaw under arrest for

furnishing liquor to a minor. Hays told him he was no longer

free to leave and readvised him of his Miranda rights (J.A.

70-71; Ex.2, at 24-25).

The interview concluded after the following confrontation:

“Q. [BY HAYS] * * Okay. We've contacted three

out of the four re you indicated that was at the apart-

ment last night. of them have witnesses indicating

they were not there. And it’s going to be my theory that

you were driving that pickup, ran off the road because you

had too much to drink, got scared because you—I’m just

giving you my theory. You got scared because you're a

bitual offender, and a result of that accident is how you

hurt your head. Then you came back and called the police.

This is my theo —7 It may not be right, but I’m just

telling you how I feel about it. Am I ciose?

“A. [BY BRADSHAW]: No. You’re one hell of a long

ways from it.

“Q. Okay. Were you in the vehicle last night?

“A. No, I was not.

“Q. Even as a passenger?

“A. I’ve got witnesses to that.

“Q. Okay, can you tell me who the witnesses were?

“A. For one, my grandmother and Larry Moron or

Moorehead, whichever one his last name may be.

“Q. (Inaudible)

“A. And I do want an attorney before it goes very

much further.” (J.A. 71-72; Ex.2, at 25-26).

Hays immediately terminated the conversation and hand-

cuffed Bradshaw (J.A. 14, 16; Tr. 20, 22). Shortly thereafter

and while still at the police station, Bradshaw asked Hays,

“Well, what is going to happen to me now?” (J.A. 16; Tr. 22).

According to Hays’ testimony, the feilowing occurred:

I says[sic] ‘You do not have to talk to me. You

have requested an attorney and I don’t want you talking to

me unless you so desire because anything you say—

because—since you have uested an attorney, you

know, it has to be at your own will.’ I says[sic] ‘I can’t

prevent you from talking, but you understand where your

place—you know, where your standing is here?’ and he

agreed. He says[sic] ‘I understand,’ and—you know, and

we had conversation from then on.. (J. A. 16; Tr. 22).

While still in the station, Hays told Bradshaw “where he was

going and what he would be charged with.” (J.A. 17; Tr. 23).

Hays put Bradshaw in the front seat of the patrol car “so we

could talk” (J.A. 17; Tr. 23). Hays drove him to the Tillamook

County Jail. While enroute, Hays reopened his theory of culpa-

bility and suggested that Bradshaw take a polygraph examina-

tion (J.A. 17; Tr. 23). Hays testified:

* * * * + (Wie talked about, again, the theory that I had

mentioned on the tape about what had happened, the

accident, and whatnot, and he says—I made the

statement—I says, Well, I can have a polygraph ex-

aminer come down and talk to you tomorrow and we can

clear this matter up and find out actually what happened.“

I think he made something—he said, ‘What do you mean, a

polygraph examiner?’ and I said, ‘Well, a lie detector test,’

and I explained it to him and said, ‘Okay, clear this matter

up,’ and these statements, among others, were made.

[Fihese statements were made while in [sic] route to the

county jail in the patrol car. We had a conversation all the

way there and we talked about several things, the fact

that he was from Missouri and how long he had been back

and he had lived in St. Helens and he knew several police

officers from St. Helens, I believe, and we had general

SS all the way to the county jail.” (J.A. 17-18;

Bradshaw was lodged in the Tillamook County Jail on the

charge of furnishing liquor to a minor “in lieu of $10,300 bail.”

(Ex.11, Police Information Report, Officer Hays, dated 9-11-

80, p.4).

Hays testified Bradshaw wanted to contact Irma Stockdale,

who was also leaving for St. Helens that evening, and he had “a

couple of other things to do” (J.A. 18; Tr. 24). He “believed”

Bradshaw may have had an opportunity to make a phone call to

a lawyer, but he did not know one (J.A. 18; Tr. 24). A police

officer contacted Mrs. Stockdale and informed her that Brad-

shaw was in jail (J.A. 19; Tr. 25).

On Monday morning, September 15, 1980, Corporal Hays

briefed Trooper William Rainey, a polygraph examiner, about

the facts of the investigation, but did not tell him that Brad-

shaw had previously requested an attorne, J. A. 20-21; Tr.

26).

Late that morning, at the county courthouse, Bradshaw

submitted to a polygraph examination administered by

Rainey. Rainey advised Bradshaw of his Miranda rights.

Bradshaw executed a written consent to the examination (J.A.

30-33; Tr. 42-45). After the examination, Rainey told Brad-

shaw that in his opinion, Bradshaw had not been truthful in his

answers to questions about having driven Reynolds’ truck.

Bradshaw thereupon admitted to Rainey that, on September

13, he had passed out behind the wheel of the Reynolds truck

while driving Reynolds to a party, after the two had consumed

aconsiderab'e amount of alcohol at Reynolds’ cabin (J. A. 33-35;

Tr. 45-47).

Several hours later, at 1:30 a.m., Bradshaw was arraigned

before the Tillamook Justice of the Peace on the furnishing

liquor to a minor charge with bail set at $10,300 (Ex. 11, Cus-

tody Report, Officer Hays, dated 9-15-80, p.1). That same

afternoon, the Tillamook County District Attorney directed

the police to charge Bradshaw with manslaughter, felony driv-

ing while revoked and driving under the influence (Ex. 11,

Police Information Report, Officer Hays, dated 9-17-80, p.1-2;

Officer Stephenson, dated 9-16-80, p.2). Bradshaw was then

arraigned on the more serious charges arising from his con-

fession before the Justice of the Peace after business hours, at 7

p.m., on the evening of the same day (Ex. 11, Police Informa-

tion Report, Officer Nicholson, dated 9-17-80, p.1), and bail

was increased to $25,300 (Ex.11, Police Information Report,

Officer Stephenson, dated 9-16-80, p.1).

B. Procedural Facts:

At the pretrial Miranda hearing, Bradshaw contended his

statements were obtained in violation of his rights under the

Fifth and Fourteenth Amendments. He contended (1) the

police officers improperly questioned him after he invoked the

right to counsel, (2) his post-invocation statements to the offic-

ers were inadmissible, and (3) his invoked right to counsel

could not be waived until an attorney had been provided (J.A.

14-15, 21-22; Tr. 20-21, 27-28).

In colloquy, the trial court reasoned that a waiver was possi-

ble if the state merely established Bradshaw “voluntarily

changed his mind” (J.A. 15, 38; Tr. 21, 55). The court applied

this standard, rather than the waiver standard announced in

Edwards v. Arizona, 451 U.S. 477 (1981) (J.A. 42-43; Tr.

81-82).

At the conclusion of the pretraii hearing on the admissibility

of Bradshaw’s statements to Trooper Rainey, the trial court

ruled as follows:

“I find that the statements made to Officer—or, to .

Corporal Rainey were admissible. The evidence estab-

lishes that there were no threats, promises, or induce-

ments, that the defendant was properly advised of his

rights and that he did understand them and I also find that

the evidence supports a conclusion that although Mr.

Bradshaw had indicated his intent to have an attorney

before it goes very much further, that within a short time

after he made that statement he was initiating conversa-

tions in spite of the officer’s 1 him, I can’t talk

with you.’ and I think that when I look at the total context

of this, that there was, in fact, a change of this man’s mind,

that it was not brought on by any persuasion or

argumentative kind of statements that were improper in

any way and that the statements finally made to Officer

Rainey—or, to Corporal Rainey were voluntary and fol-

lowed a waiver and a knowing waiver of his right to remain

silent. . . .” (J. A. 42-43; Tr. 81-82).

During Bradshaw’s nonjury trial, his admissions to Rainey

were introduced into evidence by a stipulation that Rainey’s

testimony at trial would be the same as it was in the pretrial

hearing (Tr. 147-149). Bradshaw was found guilty of first de-

gree manslaughter, driving under the influence of intoxicants,

and driving while his license was revoked.

On appeal, the Oregon Court of Appeals held that Brad-

shaw’s statements to Trooper Rainey were erroneously admit-

ted into evidence. The Oregon court based its conclusion upon

this Court’s decision in Edwards v. Arizona, supra. The Court

of Appeals reasoned that Bradshaw had not knowingly, in-

telligently and voluntarily waived the right to counsel:

„... We do not construe defendant’s question about

what was going to happen to him to have been a waiver of

his right to counsel, invoked only minutes before, or any-

thing other than a normal reaction to being taken from the

police station and placed in a police car, obviously for

transport to some destination. Though a conversation en-

sued, [Hays] clearly took advantage of the opening to

reinterrogate defendant about his culpability and suggest

, lie detector test, which was administered the next

“The administration of the lie detector test and the

subsequent interrogation of defendant were not at his

suggestion or request, but were at the instance of author-

ities. . . . State v. Bradshaw, 54 Or. App. 949, 953, 636

P.2d 1011, 1013 (1982) [Petition for Certiorari, at 13].

The Oregon Supreme Court summarily denied the state’s

petition for review.

SUMMARY OF ARGUMENT

Under the rule of Edwards v. Arizona, 451 U.S. 477 (1981),

when an accused requests counsei, the authorities may not

interrogate him unless the accused initiates further dialogue

about the investigation. Bradshaw believes “initiation” should

be defined as follows:

“Initiation” is a statement by an accused that clearly in-

dicates an intentional abandonment of the right to counsel,

an assertion of competence, and a definite willingness to

represent himself in discussions with authorities concern-

ing the substantive criminal investigation.

Under this definition, an arrestee’s statement about (1) his

independent statutory or constitutional rights other than the

right to counsel, (2) an irrelevant matter, or (3) a procedural

matter normally attendant to arrest and detention should not

be deemed initiation. Where the arrestee does not specifically

ask to reopen the substantive criminal investigation, the au-

thorities should not be permitted to interrogate him.

In the present case, Bradshaw’s question, “Well, what is

going to happen to me now?” was not initiation. It was a limited

request about procedures normally attendant to arrest or an

inartful request about how to contact counsel. The Oregon

Court of Appeals properly concluded that Corporal Hays took

unfair advantage of the limited remark, and improperly

reopened the substantive criminal investigation. The appellate

court’s decision should be affirmed.

When an accused requests counsel, Miranda imposes a per

se bar on further interrogation in the absence of counsel. The

accused has the right to consult with counsel and have him

present. The “defendant-initiation” requirement is a necessary

part of the right to counsel protections. The qualified per se

rule in Edwards fairly interprets Miranda’s basic premises,

safeguards the right to counsel, provides a “bright line” to

guide the lower courts and generates consistent precedent and

articulates clear guidance for law enforcement officials.

In practice, the rule has eliminated the three divergent

approaches of the lower courts. After Edwards, the lower

courts have been able to consistently distinguish between

defendant-initiated waivers and improper police-initiated in-

terrogation. The practical utility of the rule attests to its fun-

damental soundness.

In the third argument, Bradshaw has proposed a series of

rules to further clarify initiation, and to clarify the permissible

scope of police behavior in custodial encounters. Bradshaw

believes these suggestions are consistent with the basic pre-

mises of Miranda and Edwards.

It will be assumed for purposes of argument that Bradshaw

“initiated” the discussions with Officer Hays triggering the use

of the totality of circumstances analysis so strongly advanced

by the Attorney General. A review of the record negates any

finding of a voluntary and knowing waiver:

(1) Officer Hays, unable to establish probable cause to

arrest Bradshaw on the felony charges for the death of

Reynolds, accused Bradshaw of the killing and then illegally

arrested Bradshaw for furnishing alcohol to a minor. There

was no statutory authority to arrest him under Oregon law.

(2) Bradshaw asked for the assistance of counsel but was

never given the opportunity to call either an attorney or his

grandmother, who was leaving town. The police actually con-

tacted Bradshaw’s grandmother to prove Bradshaw was lying

about the events surrounding Reynold’s death but never told

her of her grandson’s request for help.

(3) After the illegal arrest and Bradshaw’s remark, “Well,

what is going to happen to me now?”, Officer Hays suggested

to Bradshaw that he take a “lie” detector test.

(4) The authorities did not promptly present Bradshaw

before a magistrate on the pretext furnishing violation. he was

illegally detained from Sunday evening through Monday.

Eventually, at 7:00 p.m. on Monday night, he was arraigned on

the felony charges that arose from the polygraph confession.

(5) During all of this time Bradshaw, an apparent alcoholic

who had received a serious head injury, was without friends,

family or counsel.

ARGUMENT

The Oregon Court Of Appeals Properly Applied The Ed-

wards v. Arizona Waiver Rule To The Limited Factual

Record Of The Present Case. Corporal Hays Improperly

Reopened The Criminal Investigation By Taking Unfair

Advantage Of Bradshaw’s Limited Procedural Remark.

In Edwards v. Arizona, 451 U.S. 477 0 „ this Court

reconciled Miranda’s per se bar against police questioning of

an accused who has invoked the right to counsel with the

seemingly divergent rule permitting waiver of the right and

the resumption of questioning under limited circumstances.

Recognizing that different procedures and stronger “critical

safeguards” are involved when an accused asks for counsel as

compared with a request to remain silent, this Court clarified

the concrete constitutional guidelines of Miranda v. Arizona,

384 U.S. 436 (1966), sharply distinguished the right to silence

rules of Michigan v. Mosley, 423 U.S. 96 (1975), and prom-

ulgated the qualified per se rule governing waiver of an in-

voked right to counsel. The opinion provided:

“* * * [A lithough we have held that after initiall —

advised of his Miranda rights, the accused may —

validly waive his rights and respond to interrogation [cita-

tion omitted], the Court has strorigly indicated that addi-

tional safeguards are necessary when the accused asks for

counsel; and we now hold that when an accused has in-

voked his right to have counsel present during custodial

interrogation, a valid waiver of that right cannot be estab-

lished by — only that he responded to further police-

initiated custodial interrogation even if he has been

advised of his rights [footnote omitted]. We further hold

that an accused, such as Edwards, having expressed his

desire to deal with the police only through counsel, is not

subject to further — by the authorities until

counsel has been made available to him, unless the accused

himself initiates further communication, exchanges, or

conversations with the police.” 451 U.S. at 484.485

“Initiation” by an accused was limited to remarks that

“reopened the dialogue. Id., at 485, n.9. In order to prove the

active verb “reopened,” the state should be required to prove

that the remark indicates an intentional change of mind, an

unequivocal willingness to abandon the previously asserted

right to counsel, a clear assertion of competence, and a definite

willingness to represent oneself in further discussion with the

authorities concerning the criminal investigation.

The context of the Edwards opinion indicates that “dia-

logue” is limited to the substantive criminal investigation. The

accused “closed” the substantive interrogation by asking for a

lawyer. In order to reopen the interrogation, an accused must

issue a remark that is relevant to the investigation.

This relevance requirement is based upon precedent and

promotes a fair individual-state balance that is central to

Miranda doctrine. In Edwards, Mr. Justice Powell indicated

that “routine conversations with suspects about unrelated

matters” do not amount to police initiation. Id., at 490 (Powell,

J., concurring). Similarly, an officer’s remark that is “normally

attendant to arrest and custody” (such as a routine booking

question) does not constitute police-initiated interrogation.

Rhode Island v. Innis, 446 U.S. 291, 301 (1980); see also

United States v. Hinckley, 672 F.2d 115, 122-126 (D.C. Cir.

1982) (opinion defines the limited scope of the booking proc-

ess). It follows that an arrestee’s irrelevant procedural re-

mark does not invite further discussion of the substantive

criminal investigation.

Additionally, an arrestee possesses certain statutory as well

as state and federal constitutional rights which exist in-

dependently alongside the rights to counsel and silence. An

individual in custody retains a residuum of personal dignity

and privacy that is balanced against the state’s legitimate

security interest in managing detainees. For example, an

arrestee has basic rights concerning food, shelter, medical

treatment, speech and religion. In Oregon, an arrestee has a

right against unnecessary rigor guaranteed by Article I, sec-

tion 13 of the Oregon Constitution. Sterling v. Cupp, 290 Or.

611, 625 P.2d 123 (1981). An arrestee has a general right to call

his attorney after his arrest based upon a Fourteenth Amend-

ment liberty interest subject to reasonable restrictions. State

v. Newton, 291 Or. 788, 805-807, 636 P.2d 393, 404-407 (1981).

An arrestee’s question about these independent rights should

not be construed as a waiver of his right to counsel. His request

to a jailor for a phone call does not invite further substantive

4 United States v. Hinckley, 672 F. 2d 115, 122-123 (1982) indicated:

“The standard booking process is ‘a predominantly clerical

procedure, performed immediately or soon after the suspect is

delivered to the precinct, or district station’; its pri function

is ‘record-keeping.’ The 25-minute interview with Hinckley [con-

cerning his family and employment “background,” involvement

with Jody Foster] by FBI and Secret Service agents, conducted

five hours after he was taken into custody, bore none of the

indicia of a clerical operation.”

See also W. LaFave, Arrest 379-380 (1965).

interrogation. Similarly, his remark concerning detention pro-

cedures does not invite further interrogation.

By way of illustration, Bradshaw has set forth a comprehen-

sive list of hypothetical remarks that an accused may utter

during the arrest and detention process which are irrelevant to

the criminal investigation and which do not constitute initia-

tion. See the examples in Appendix A. Specific examples of

non-initiatory remarks include the following:

A. Well, what is going to happen to me now?

B. When may I call my lawyer?

C. When will a lawyer be appointed?

D. When will the lawyer see me?

E. When may I make a phone call?

F. May I call my grandmother?

G. May I reschedule my appointments?

H. Where are you taking me?

I. How far away is the jail?

J. Will I be able to see a doctor concerning my injured

head?

K. May I be released on my own recognizance or admit-

ted to security release?

In light of the above premises, in consideration of the ex-

amples of non-initiatory remarks, and based upon a fair in-

terpretation of Edwards, this Court should define the concept

of initiation by an accused as follows:

“Initiation” is a statement by an accused that clearly in-

dicates an intentional abandonment of the right to counsel,

an assertion of competence, and a definite willingness to

represent himself in discussions with authorities concern-

ing the substantive criminal investigation.

When reviewed in this context, Bradshaw’s question, “Well,

what is going to happen to me now?” reflects the normal

concern of an arrestee about his independent rights. Bradshaw

had previously told Corporal Hays he and his grandmother,

Irma Stockdale, planned to go to St. Helens that evening and

he had a couple of other things to do. Apparently, he wanted to

know the procedures “normally attendant to arrest and cus-

tody” in order to contact his grandmother and reschedule his

appointments. Alternatively, his question was an inartful re-

quest concerning the necessary procedures to contact an attor-

ney and to be released on bail. Such a request would amount to

a reaffirmation of the right, and not a step towards waiver.

Corporal Hays understood the limited nature of Bradshaw’s

remark. While still in the Rockaway police station, Hays com-

pleted the exchange by telling Bradshaw “where he was going

and what he would be charged with” (J.A. 17; Tr. 23). Addition-

al remarks were unnecessary.

It is noteworthy that Hays arrested Bradshaw for furnish-

ing liquor to a minor, but took the opportunity to interrogate

him about vehicular homicide. Bradshaw invoked the right to

counsel concerning the criminal investigation. He asked a lim-

ited question concerning procedural aspects of detention on the

alcohol charge. Hays answered the question in a limited

fashion. Hays, who had partially reminded Bradshaw of his

Miranda rights, placed him in the front seat of the patrol car in

order to reinterrogate him concerning the vehicular homicide.

After Corporal Hays started the car and began driving to the

Tillamook County Jail, he resumed questioning by again con-

fronting Bradshaw about his theory of the homicide case.

On this record, the Oregon Court of Appeals concluded that

Corporal Hays—not Bradshaw—initiated further dialogue on

the substantive criminal investigation. The court reasoned:

We do not construe defendant’s question about what was

going to happen to him to have been a waiver of his right to

counsel, invoked only minutes before, or anything other

than a normal reaction to begin taken from the police

station and placed in 7.— car, obviously for transport

to some destination. Though a conversation ensued, the

police officer —— took advan of the opening to

reinterrogate defendant about his culpability and suggest

= lie detector test, which was administered the next

“The administration of the lie detector test and the

subsequent interrogation of defendant were not at his

suggestion or request, but were at the instance of author-

ities. The Edwards court emphasized that

‘it is inconsistent with Miranda and its progeny for

authorities, at their instance, to reinte te an ac-

cused in custody if he has clearly asserted his right to

counsel.’ (Emphasis supplied.) [451 U.S. at 485].

“Thus, under the reasoning enunciated in Edwards,

defendant did not make a valid waiver of his Fifth Amend-

ment rights, and his statements were inadmissible.” State

8 = haw, 54 Or. App. 949, 953, 636 P.2d 1011, 1013

Bradshaw bvelieves the Court of Appeals properly interpreted

the Edwards rule, and its decision should be affirmed.

The Determination Of Whether An Accused Has Waived His

Fifth Amendment Right To Counsel Should Be Based Upon

The Per Se Rule Of Edwards v. Arizona.

In the state’s first argument, it urges the Court to re-

examine Edwards in light of the basic premises of Miranda v.

Arizona, 384 U.S. 436 (1966), traditional concepts of waiver of

constitutional rights and the inherent faults in a per se rule.”

Petitioner’s Brief at 14. According to the state, the Edwards

majority improperly attributed greater significance to an

arrestee’s request for the assistance of counsel than to a simple

request to remain silent. In essence, the state has suggested:

(1) The express language in Miranda—when an accused

requests counsel “the interrogation must cease until an

attorney is present”—does not constitute a per s¢

proscription on further questioning;

(2) Miranda’s prohibition against post-invocation con-

tact and questioning would be furthered by permitting the

police to confront defendant with new evidence, new

charges, or “new information . . . which caused the de-

fendant to be nonconversant in the first place.” Petition-

er’s Brief at 31-32;

(3) The police should be permitted to immediately re-

sume post-invocation questioning subject to review based

upon the totality of the circumstances;

(4) The police should be able to take advantage of any

irrelevant comment by defendant as an ey to

reopen interrogation on the substantive criminal in-

vestigation; an

(5) The Court should disregard the added protections

accorded by Miranda’s extension of the right to counsel to

Fifth Amendment cases, and, instead, analyze an arres-

tee’s request for a lawyer as something less than an asser-

tion of the “paramount right” to cut off questioning and to

remain silent. Petitioner's Brief at 24.

The state claims that initiation is difficult to define and apply,

while demonstrating that lower courts have found the “bright

line” concept easy to apply. See cases cited in Pettitioner’s

Brief at 38-41, including n.13. Finally, the state suggests re-

view of waiver under the totality- of- cireumstances“ with in-

itiation being an important fact.

The state’s argument should be rejected as an exaggerated

misinterpretation of the Miranda doctrine. This Court should

reaffirm the “bright line” waiver standard announced in Ed-

wards based upon the following reasons:

A. The Edwards rule perfectly reconciled Miranda’s

seemingly divergent rules on the cessation of ques-

tioning and the resumption of questioning in right to

counsel cases.

B. The “defendant-initiated waiver” requirement is a

necessary procedural safeguard to protect the right

to counsel after its assertion but before counsel ar-

rives.

C. The Edwards rule is clear and easy to administer.

A. The Edwards Rule Perfecily reconciled Miranda’s Seem-

ingly Divergent Rules On the Cessation Of Questioning

And The Resumption Of Questioning In Right To Counsel

Cases.

In Miranda v. Arizona, 384 U.S. 436 (1966), this Court

extended the greater protections inherent in the Sixth Amend-

ment right to counsel to Fifth Amendment custodial encoun-

ters. To dispel the subtle compulsion inherent in custodial

interrogation, the Court established “critical safeguards”

attached to the right and promulgated concrete constitutional

guidelines which must be followed in order to honor the ex-

ercise of the right.

When Bradshaw requested counsel, he triggered “his right

to be free of contact with the authorities in the absence of an

attorney” and “his right to be free of interrogation about the

crime of which he was suspected.” Wyrick v. Fields, U.S.

— 51 U.S.L.W. 3411-3412, (No. 82-158, November 29,

1982). In Miranda, the Court empahsized the “right to consult

with counsel” combined with “the presence of counsel” was the

necessary “protective device” to safeguard the exercise of the

right. 384 U.S. at 4656, 470. The opinion provided:

The need for counsel to protect the Fifth Amendment

privilege comprehends not merely a right to consult with

counsel prior to questioning, but also to have counsel

present during any questioning if the defendant so de-

sires.” Id., at 470.

When Bradshaw invoked the right, he activated Miranda’s

per se rule mandating the cessation of all questioning which

provides:

“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 te

confer with the attorney and to have him present during

any subsequent questioning. If the individual cannot

obtain an attorney and he indicates that he wants ome

before speaking to police, they must respect his decisiomto

remain silent. Id., at 474.

This Court has repeatedly acknowledged this per se

proscription. See Edwards v. Arizona, 451 U.S. 477, 485

(1981); Rhode Island v. Innis, 446 U.S. 291, 298 (1980): Fare v.

Michael C., 442 U.S. 707, 719-723 (1979); Michigaw e Mosley,

423 U.S. 96, 104, n. 10 (1975); Id., at 109-111 (White, J., con-

curring). Bradshaw interprets its reach as bamming all ques-

tioning. prompting or other forms of subtle compulsion that are

reasonably likely to cause an arrestee to incriminate himself or

to waive his right before “consultation and presence” of

counsel.

In Miranda, the possibility of waiver is posited opposite the

per se bar on questioning. The opinion provided:

“If the [post-invocation] interrogation continues with-

out the presence of an attorney and a statement is taken, a

heavy burden rests on the government to demonstrate

that the defendant knowingly and intelligently waived his

privilege against self-incrimination and his right to re-

tained or appointed counsel.” 384 U.S. at 475.

The Court’s opinion went on to say:

“An express statement that the individual is willing to

make 2 statement and does not want an attorney followed

closely by a statement could constitute a waiver. But a

valid waiver will not be presumed simply from the silence

of the accused after warnings are given or simply from the

fact that a confession was eventually obtained.“ Id.

At first glance, these two doctrines appear seemingly diver-

gent. Upon closer inspection, they are logically reconcilable.

Under Miranda, only defendant-initiated waivers are per-

missible. Because all questioning and prompting must cease

unless there is the consultation with and presence of counsel,

the defendant-initiation requirement is a necessary part of the

critical safeguard. This is especially true in the early stages of

arrest and transport where the bar on contact must be com-

promised based upon administrative necessity. Thus, in order

to absolutely honor the exercise of the right, the police may not

reopen the investigation dialogue.

This interpretation does not eliminate defendant-initiated

waivers. A spontaneously volunteered statement is admissi-

ble. Likewise, when defendant reopeiis the investigation and

manifests a knowing, intelligent and voluntary waiver, his

subsequent volunteered statements and responses to in-

terrogation are admissible. The initiation requirement re-

moves the taint of post-invocation police compulsion prohibited

by Miranda. The requirement assures a fair individual-state

balance and assures that defendant “reopened the dialogue”

based upon a clear change of mind free of compulsion.

In announcing the qualified per se rule governing waiver,

this Court in Edwards v. Arizona, 451 U.S. 477, 484-485

(1981), clarified and reconciled the above-mentioned Miranda

doctrines. The opinion represents a reasonable and faithful

interpretation of Miranda. It should be affirmed.

It is noteworthy that the opinion clarified the confusion

among the lower courts. Before Edwards, the lower courts

adopted three positions concerning waiver of the right to coun-

sel. Each position reflects a differnt pattern of emphasis be-

tween Miranda’s per se bar on questioning and its limited

waiver rules.

The first approach adopted a strict per se prohibition on

police reinterrogation even where defendant initiated further

conversation. See United States v. Massey, 550 F.2d 300,

307-308 (5th Cir. 1977)(request for counsel postpones in-

terrogation until counsel is present); United States v. Priest,

409 F.2d 491, 433 (5th Cir. 1969)(no questioning permitting

after request for counsel).°

The second approach adopted the qualified per se rule allow-

ing defendant-initiated waivers, but adopted a flat prohibition

Other cases applying a flat prohibition on post-invocation ques-

tioning under all circumstances include:

Moore v. State, 261 Ark. 275, 551 S.W.2d 185 (1977); Webb v. Stone,

258 Ark. 95, 522 S.W.2d 406 (1975); People v. Brake, 191 Colo. 390,

553 P.2d 763 (1976); State v. Boone, 220 Kan. 758, 556 P.2d 864, 873

(1976); People v. Cook, 78 Ill. App. 3d 695, 397 N.E.2d 439 (1979);

Stevens v. State, 265 Ind. 396, 354 N.E.2d 727 (1976); Murphy v.

State, 336 So.2d 213 (Miss. 1976), cert. denied, 429 U.S. 1076 (1977)

(statements are not voluntary when made after a request for attor-

ney which is not honored).

One limited exception anplied. When the request for counsel was

equivocal, the police were permitted to ask clarifying questions to the

extent necessary to clear up any confusion as to the suspect’s inten-

tions. Thompson v. Wainwright, 601 F. 2d 768. 771 (Sth Cir. 1979).

against resumed questioning, unless the defendant requested

it. See United States v. Womack, 542 F.2d 1047 (9th Cir. 1976);

United States v. Clark, 449 F.2d 802, 807-808 (4th Cir.

1974)(police-initiated interrogation after assertion of right to

counsel made subsequent responses to interrogation in-

voluntary); United States v. Blair, 470 F.2d 331, 338 (5th Cir.

1972) cert. denied (1973)(Miranda’s prohibition on post-

assertion interrogation “could hardly have been more uncom-

promising”); People v. Petlingill, 21 Cal. 3d 231, 578 P.2d 108,

cert. deined, 429 U.S. 847 (1976); People v. Fioritto, 68 Cal.2d

714, 441 P.2d 625 (1968). This is the approach suggested by the

American Law Institute. See ALI Model Code of Pre-

Arraignment Procedure, § 140.8 (1975) set forth as Appendix

B herein.“

The third approach allowed renewed interrogation after a

request for counsel subject to review based on the totality-of-

circumstances. See, e.g., White v. Finkbeiner, 611 F.2d 186

(7th Cir. 1979), vacated and remanded, 451 U.S. 1013 (1981),

on remand, 687 F.2d 885 (7th Cir. 1982); United States v.

Wilson, 571 F.2d 455 (9th Cir. 1978); United States v. Grant,

549 F.2d 942 (4th Cir.), cert. denied, 432 U.S. 908 (1977).’

Other cases adopting a flat prohibition against resumed question-

ing, unless the defendant requests it, include People v. Harris, 191

Colo. 234, 552 P.2d 10 (1976); People v. Salazar, 189 Colo. 429, 541

P. 2d 676 (1975) (defendant must affirmatively withdraw a request for

counsel); People v. Medina, 37 Ill. App. 3d 1029, 347 N.E.2d 424

(1976); Commonwealth v. Mercier, 451 Pa. 221, 302 A.2d 337 (1973);

State v. Marcum, 24 Wash. App. 441, 601 P.2d 975 (1979) (all ques-

tioning must stop but defendant may initiate waiver); see generally,

Comment, Waiver of Rights in Police Interrogations: Miranda in the

Lower Courts, 36 U. Chi. L. Rev. 413, 437-441 (1969).

See also United States v. Rodriguez-Gastelum, 569 F. 2d 482 (9th

Cir.), cert. denied 436 U.S. 919 (1978); Cobbs v. Robinson, 528 F. 2d

1331 (2d Cir. 1975), cert. denied 424 U.S. 947 (1976); but see Nash v.

Estelle, 597 F.2d 513 (5th Cir.), cert. denied 444 U.S. 981 (1979).

The first approach placed strong emphasis on the prohibition

of interrogation without accomodating the waiver doctrine.

The third approach placed excessive emphasis on the waiver

doctrine, while impermissibly weakening the per se proscrip-

tion against questioning. As this Court recognized in Edwards,

only the second approach reconciled the competing doctrines to

provide a fair and reasonable interpretation of Miranda.

B. The “Defendant-Initiated Waiver” Requirement Is A Nec-

essary Procedural Safeguard To Protect The Right To

Counsel After Assertion But Before Counsel Arrives.

The critical safeguards and constitutional rules attached to

the right to counsel offer greater protections than their

counterparts in a right to silence case. There, the safeguard is

the arrestee’s “right to cut off questioning.” Michigan v. Mos-

ley, 423 U.S. 96, 103 (1975). When the arrestee expresses a

desire to remain silent, Miranda requires “the interrogation

must cease.” 384 U.S. at 473. Mosley requires the authorities

to scrupulously honor the exercise of the right. Thus, in most

cases, the resumption of interrogation will violate the right.

Bradshaw interprets the Mosley exception as being limited

to its extremely unusual facts. The opinion does not aid the

state, because this case involves a right to counsel issue.

Additionally, Corporal Hays’ behavior violates Mosley as well

as Edwards, because the factual prerequisites of Mosley are

absent.

One commentator has interpreted Michigan v. Mosley, 423 U.S.

96 (1975) as follows:

“Mosley held that when a suspect invokes his right to remain silent

(as opposed to his right to counsel), police interrogation may be

resumed at least in the following circumstances: (1) the original

interrogation is promptly terminated; (2) the questioning is resumed

only after ‘the passage of a significant period of time’; (3) the suspect

is given another set of Miranda warnings at he outset of the second

interrogation; (4) a different officer resumes the questioning; and (5)

In Mosley, Mr. Justice White analyzed the foundation for

the dichotomy of rights. When an individual merely invokes

the right to silence, he is acknowledging his competence to

represent himself in future discussions with the authorities.

Id., at 109, n.1 (White, J., concurring). Where the accused

proceeds on a pro se basis, it is reasonable to keep the lines of

communications open in order to advise him that a verifiable

alibi would lead to his release or that the case against him is

strong and his cooperation in apprehending and convicting

others would redound to his benefit in the form of a reduced

charge. Jd. While an accused is accorded the opportunity to

negotiate a better deal, this does not authorize repeated

rounds of post-invocation interrogation to compel a confession.

A fair individual-state balance is maintained.

The opinion contrasts a request for counsel:

“The question of the proper procedure following ex-

pression by an individual of his desire to consult counsel is

not presented in this case. It is sufficient to note that the

reasons to keep the lines of communications between the

authorities and the accused open when the accused has

chosen to make his own decisions are not present when he

indicates instead that he wishes legal advice with respect

therein. The authorities may then communicate with him

the second interrogation is limited to a crime that has not been the

subject of the earlier interrogation.

“Although it has forcefully been argued that the fact that the

second questioning session in Mosley was restricted to a separate and

‘unrelated’ crime was ‘critical,’ see Stone, The Miranda Doctrine in

the Burger Court, 1977 Sup. Ct. Rev. 99, 134, circumstances (1)(2)

and (3) may suffice to permit the resumption of questioning. Factors

(1), (2) and (3) would seem to be the minimum requirement for

renewed questioning when a suspect indicates that he wishes to

remain silent.”

Kamisar, “Edwards v. Arizona in the Lower Courts: Applying a

Reinvigorated Miranda,” inJ. Choper, Y. Kamisar & L. Tribe, The

Supreme Court: Trends & Developments 1981-1982, at —_, n.3

(1983) [hereinafter Edwards in the Lower Courts]. See also Id., n. S.

through an attorney. More to the point, the accused hav-

ing expressed his own view that he is not competent to

deal with the authorities without legal advice, a later

decision at the authorities insistence to make a statement

without counsel’s presence may properly be viewed with

skepticism.” Id., at 110, n.2.

In asking for a lawyer, the arrestee has uttered a “ery for

help.” He has acknowledged his position of weakness and his

incompetence to make his own decisions. Even a “street-wise”

arrestee has acknowledged he needs a lawyer to properly

represent his interests. By invoking the right, he has already

exercised the option of self-determination by deciding he needs

consultation with and the presence of a lawyer in further

discussions with the authorities about the alleged crime. Any

necessity for keeping open lines of communication may be

fulfilled in this situation by contacting the suspeet's attorney,

and further questioning of the defendant is never required.

An attorney can ascertain the nature of the charges and the

strength cf the state’s case. After privileged discussions with

the client concerning the extent of his involvement, the attor-

ney would have the requisite informational basis upon which to

recommend cooperation, discussion of an alibi, negotiations, or

trial.

This Court recently emphasized the fundamental import

ance of counsel in safeguarding the exercise of the right. Mr.

Justice Blackmun writing for the majority in Fare v. Michael

C., 442 U.S. 707 (1979) noted:

“The rule in Miranda, however, was based on this

Court’s perception that the lawyer occupies a critical posi-

tion in our legal system because of his unique ability to

protect the Fifth Amendment rights of a client undergoing

custodial inte tion. Because of this special ability of

the lawyer to help the client becomes enmeshed in the

adversary process, the Court found that ‘the right to have

counsel present at the interrogation is indispensable to the

protection of the Fifth Amendment privilege under the

_— established by the Court. Id., at 469. Moreover,

the lawyer’s presence helps guard against overreaching

by the police and ensures that any statements actually

obtained are accurately transcribed for presentation into

evidence. Id., at 470.

“The per se aspect of Miranda was thus based on the

unique role the lawyer plays in the adversary system of

criminal justice in this country. Whether it is a minor or an

adult who stands accussed, the lawyer is the one person to

whom society as a whole looks as the protector of the 1

rights of that person in his dealings with the police and the

courts. For this reason, the Court 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.” 442 U.S. at 719.

As discussed above, the Edwards procedural testimony for

the two rights is reasonable and consistent with Miranda. In

the right to counsel context, Bradshaw believes consultation

between lawyer and client is a necessary prerequisite to res-

tore a fair individual-state balance. Only the lawyer can dispel

the compulsion inherent in custodial questioning of the ac-

cused. An officer’s prompting or other forms of subtle compul-

sion certainly worsens the individual-state balance from the

defendant’s point-of-view. For this reason, the defendant-

initiation requirement is a ſecessary part of the right to coun-

sel protections.

C. The Edwards Rule Is Clear And Easy To Administer.

In addition to its inherent fairness, the Edwards rule is clear

and easy to administer. This Court has readily applied it to a

variety of fact situations:

This Court has consistently applied the Edwards standard.

See Wyrick v. Fields, supra; Williams v. Ohio, 452 U.S. 935

(1981); Blakney v. Montana, 451 U.S. 1013 (1981); White v.

Finkbeiner, 451 U.S. 1013 (1980); Leuschner v. Maryland, 451

U.S. 1014 (1981); Monroe v. Idaho, 451 U.S. 1014 (1981);

Wantland v. Maryland, 451 U.S. 1014 (1981) and James v.

Illinois, 451 U.S. 1014 (1981). In Wyrick, defendant’s request

to submit to interrogation in the form of a polygraph examina-

tion was clearly a defendant-initiated waiver. In the remaining

cases, law enforcement officers improperly initiated inter-

rogation after defendants had requested the right to counsel.

The judgments were vacated and the cases remanded in light

of Edwards. These cases demonstrate the simplicity of applica-

tion and the guiding power of stare decisis in generating

meaningful precedents.

The lower courts have had no trouble in distinguishing be-

tween improper police-initiated interrogation, United States

v. Hinckley, 672 F.2d 115 (D.C. Cir. 1982); United States v.

Downing, 655 F. 2d 404 (Ist Cir. 1981); Stumes v. Solem, 671

F.2d 1150 (8th Cir. 1982); and defendant-initiated waivers,

United States v. Gordon, 665 F.2d 478 (2d Cir. 1981); United

States v. Thierman, 678 F. 2d 1331 (9th Cir. 1982).

Similarly, the state courts have had no post Edwards trouble

in applying the “initiation” standard. Examples of cases where

the courts have found improper police-initiated interrogation

after defendant asserted the right to counsel include: State v.

Brannam, 275 Ark. 16, 627 S.W.2d 8 (1982) (repeated rounds

of questioning); Scroggins v. State, 633 S.W.2d 33, 37 (Ark.

1982); People v. Cerezo, 635 P.2d 192 (Colo. 1981) (intentional

police initiation and taking advantage of defendant's inquiry of

“How things looked for her”); Silling v. State, 414 So.2d 1182

(Fla. App. 1982) (officer asked, “Why she did it?”), Wilson v.

Zant, 290 S.E.2d 442, 446 (Ga. 1982); Vaughn v. State, 281

S.E.2d 594, 597 (Ga. 1981); State v. West, 408 So.2d 1114 (La.

1982) (officer threatened to arrest defendant’s mother and

offered a deal if defendant gave a statement); State v. McClos-

key, 90 N.J. 18, 446 A.2d 1201 (1982); State v. Taylor, 56 Or.

App. 703, 643 P.2d 379 (1981) (officer-initiated interrogation);

State v. Fitzgerald, 60 Or. App. 466, ___. P.2d — (1982);

Goodnough v. State, 627 S.W.2d 841 (Texas Cr. App. 1982)

(prompting); Casillo v. State, 616 S.W.2d 620, 623 (Texas Cr.

App. 1981) (officer confronted defendant with new evidence).

State courts readily found defendant-initiated waivers. Ex-

amples include: State v. Piatt, 132 Ariz. 145, 644 P.2d 881

(1982) (defendant asked Tucson detectives to “call him”); Coble

v. State, 274 Ark. 134, 624 S. W. 2d 421, 424 (1981); Richardson

v. State, 274 Ark. 473, 625 S.W.2d 504, 506 (1981); Jennings v.

State, 413 SO.2d 24 (Fla. 1982); Barksdale v. State, 161 Ga.

155, 291 S.E.2d 18 (1982) (defendant repeatedly initiated dis-

cussions with sheriff); Caffo v. State, 247 Ga. 751, 279 S.E.2d

678, 682, n.1 (1981) (defendant requested that the interview

begin again); State v. Dowles, 56 N.C. App. 578, 289 S.E.2d

883 (1982) (defendant) indicated willingness to answer selec-

tive questions).

The primary reason why the Edwards test works so well is

that the lower courts have interpreted it as establishing a per

se rule.’ Under the rule, the state must clearly establish two

threshold facts, i.e., (1) the police refrained from post-

invocation interrogation in the absence of counsel, and (2)

defendant reopened the dialogue. Thereafter, it must establish

by clear and convincing evidence that an arrestee made a

knowing, intelligent and voluntary waiver. Edwards v. Arizo-

na, supra, 451 U.S. at 482-483.

The Court should specifically reaffirm the Edwards per se

rule in order to fairly interpret Miranda’s basic premises, to

safeguard the important right to counsel, to provide a “bright

line” to guide lower courts and generate meaningful precedent,

and to clearly limit police conduct."

Most commentators have also interpreted Edwards as establish-

ing a per se rule. See Kamisar, Edwards v. Arizona in the Lower

Courts; Comment, Edwards v. Arizona: The Burger Court Breathes

New Life Into Miranda, 69 Cal. L. Rev. 1734 (1981); Comment, Fifth

Amendment—Waiver of Previously Invoked Right to Counsel, 72

Jour. of Crim. Law & Criminology 1288 (1981); Comment, Criminal

Procedure—Self-Incrimination: Miranda Lives, 33 U. Fla. L. Rev.

788 (1981).

0 In the absence of such blanket prohibition on certain categories of

police behavior, studies indicate law enforcement officials have

tended to “push to the limit” any constitutional restraint on their

actions. For example, despite having to give Miranda warnings,

police are still able through a variety of techniques to induce the

overwhelming majority of suspects to waive the right to counsel.

After an arrestee requests counsel, the use of interrogation tactics

This Court Should Further Clarify And Strengthen The

Edwards Waiver Rule.

In Petitioner’s Brief, the state suggests “initiation is difficult

to define, and its application will chill all custodial communica-

tion.” Petitioner’s Brief at 28-32. The state’s concern are

chimerical.

As indicated above, in Arguments I and II-1A, this Court

and the lower courts have found “initiation” easy to define and

apply. The “bright line” objective standard works well in both

theory and practice. On the second point, initiation is not

overbroad. It serves Miranda’s laudatory purpose of forbidd-

ing authorities from reopening the substantive investigation

through prompting, interrogation, and other forms of subtle

compulsion that are reasonably likely to cause the arrestee to

leads to impermissible waiver. Thus, restraint on police-initiated

contacts is necessary to further Miranda’s per se proscription.

See White, Police Trickery in Inducing Confessions, 127 U. Pa. L.

Rev. 581, 598 (1979); Leiken, Police Interrogation in Colorado: The

Implementation of Miranda, 47 Den. L. J. 1, 26-34 (1979); Oregon

State Police Manual 101-103 (1979); Stephens, Flanders & Cannon,

Law Enforcement and the Supreme Court: Police Perceptions of the

Miranda Requirements, 39 Tenn. L. Rev. 407 (1972); Medalie, Zeitz

and Alexander, Custodial Police Interrogation in Our Nation's

Capital: The Attempt to Implement Miranda, 66 Mich. L. Rev. 1347,

1394-95 (1968); Inbau & Reid, Criminal Interrogation and Con-

fessions, 31, 106 (2d ed. 1967); Project, Interrogation in New Haven:

The Impact of Miranda, 76 Yale L. J. 1519, 1614 (1967); Seeburger &

Wettick, Miranda in Pittsburgh—A Statistical Study, 29 U. Pitt. L.

Rev. 1 (1967); Kamisar, A Dissent from the Miranda Dissents: Some

Comments on the “New” Fifth Amendment and the Old “Voluntari-

ness” Test, 65 Mich. L. Rev. 59, 94-104 (1966); Lynch, Interrogation

of Criminal Defendants—Some Views on Miranda v. Arizona, 35

Fordham L. Rev. 221 (1966); Younger, Interrogation of Criminal

Defendants—Some Views on Miranda v. Arizona, 35 Fordham L.

Rev. 255 (1966); Aubrey and Caputo, Criminal Interrogaticn (Ist ed.

1965).

waive the right or incriminate himself. Both the defendant and

the officer may discuss matters normally attendant to arrest

and detention without reopening the investigation. Only po-

tentially incriminatory police pressure is forbidden. In this

respect, Edwards strikes a fair balance.

In practice, the vast majority of cases will be clear. It should

be relatively simple to determine whether defendant reopened

the investigatory dialogue or whether he commented upon an

irrelevant matter. In the few cases where the remark was

vague, the remark should be deemed non-initiatory. This con-

struction is consistent with the heavy burden placed upon the

state to prove a clear waiver.

This case presents an opportunity for the Court to clarify

and strengthen the Edwards waiver rule. Bradshaw believes

the following proposed rules would further safeguard the in-

voked right to counsel and clearly limit police behavior in a

manner consistent with the Miranda doctrine.

A. In — the police officer should refrain from all

irrelevant remarks during arrest, transportation,

booking and detention, where an arrestee has in-

voked the right to counsel.

B. The officer should refrain from all interrogation,

prompting or other forms of subtle compulsion reas-

onably likely to cause an arrestee to ineriminate him-

self or to waive the right.

C. The officer may only initiate statements that are nec-

— attendant to arrest and detention proce-

ures.

1. The statement must be:

a. Necessarily attendant to arrest and deten-

tion p ures;

b. Nondeferrable until defendant has had an

opportunity to consult with and contact an

attorney;

e. Normally directed at an arrestee rather than

his attorney (e.g., statements involving

fingerprinting, strip search, etc.); and

d. Limited to minimum breadth necessary to con-

vey or ascertain the essential information.

2. The statement must not be:

a. Reasonably likely to incriminate or to induce

waiver of the right to counsel; or

b. A subterfuge to promote further interrogation

or waiver.

D. If defendant makes a statement concerning an

irrelevant matter or involving his independent

statutory or constitutional rights, the officer should

limit his remarks as follows:

1. The officer should only respond to a question that

requires an immediate response.

2. The response should be

a. Limited in accordance with the principles in

rules A, B and C; and

b. Limited to the narrow subject matter of the

question.

3. Where a response would be reasonably likely to

cause defendant to waive his right, or incriminate himself,

the officer should not directly respond. Instead. he should

advise the arrestee:

“I cannot respond to that remark. You should discuss

the matter with your attorney.”

4. The officer should not discuss anything relevant

to the criminal investigation in the absence of counsel.

E. If an arrestee clearly expresses a desire to reopen the

substantive criminal investigation, the officer should

not interrogate the person until the following steps

have occurred.

1. The officer readvised the arrestee of his complete

Miranda warnings;

2. The officer asked these clarifying questions:

a. “Do you fully understand these rights?”

b. “Do you now wish to abandon your right to

consult with an attorney and to have him pre-

sent during further questioning about your

charge(s)?”” ’

e. “Do you expressly and voluntarily waive the

right to counsel during further questioning

about your charge(s)?”

d. “Do you wish to proceed on your own behalf?”

e. “Are you now willing to answer further ques-

tions about the charge(s)?” e

3. After an arrestee has affirmatively answered the

above questions, the officer may resume the interroga-

tion.

The “Totality Of Circumstances” Test —A Pretext Arrest And

Unexplained Delay In Arraignment.

It will be assumed for the sake of argument that Bradshaw’s

remark, “Well, what is going to happen to me now?” is the

triggering mechanism to shift the analysis from the “per se”

rule to the “totality of circumstances” test. It will be seen that

the Attorney General's criticism and suggested abandonment

of this Court’s rationale in Edwards supporting the per se rule

when the right to counsel is invoked and requiring viewing a

government claim of waiver with “skepticism,” is clearly un-

founded (Petitioner’s Brief at 25-26).

Oregon’s Attorney General correctly puts Officer Hays’

good faith in issue" under the “totality of circumstances” test in

an attempt to distinguish the “extremely suspect police proce-

dures” in Edwards v. Arizona, 451 U.S. 477 (1981). Officer

An examinining the totality of the circumstances in a case of

post-invocation waiver, the origin of the renewed conversation is a

highly relevant factor. In some cases of heavy-handed police miscon-

duct, it may very well be the determining factor and thus would

require suppression of a subsequent confession.” (Petitioner's Brief

at 33-34).

2“ Arrested on murder, burglary, and robbery charges, Edwards

was advised of his Miranda rights and, after some initial questioning,

requested counsel. The police then ceased the interrogation. When

Hays’ conduct is also important because the threshold question

of who ultimately initiated the agreement for Bradshaw to take

the polygraph examination” through another police officer

hinges on Officer Hays’ less than articulate recollection of the

purported unrecorded “conversation” between Officer Hays

and Bradshaw shortly after his arrest and request for counsel.

Sometime after 9 p.m. on Sunday, September 14, 1980,

Bradshaw was arrested for furnishing alcohol to a minor and

“lodged in the Tillamook County Jail in lieu of $10,300 bail”

(Ex.11, Information Report, Officer Hays, dated 9-17-80, p.4).

Defendant confessed “late” the following morning after being

given the results of the polygraph test (J.A. 30; Tr. 42). At 1:30

p.m., he was arraigned before the Tillamook Justice of the

two detectives asked to see defendant the next morning, he told a

guard he did not wish to speak to anyone. The guard replied defend-

ant ‘had to’ talk to the detectives. The police then readvised defend-

ant of his Miranda rights, and he ultimately gave an incriminating

statement.” (Petitioner’s Brief at 21).

The use of a polygraph examination does not per se create any

impropriety in inducing Bradshaw’s confession. This is so even

though the results of a polygrapn test arc generally inadmissible

because it “has not yet attained general scientific acceptance as a

reliable and accurate means of ascertaining truth of deception * * *”,

State v. Green, 271 Or. 153, 166, 531 P.2d 245 (1975), citing with

approval Reid and Inbau, Truth and Deception: The Polygraph

(“Lie-Detector”) Technique 254 (1966). But a defendant fully advised

of his constitutional rights after being told that his polygraph test

results showed “deceptive patterns” may or may not be compelled by

mental coercion. State v. Clifton, 271 Or. 177, 531 P.2d 256 (1975);

State v. Green, supra; State v. Keiper, 8 Or. App. 354, 493 P.2d 750

(1972).

The actual polygraph results are not a part of the record. However,

based on the police assumption that Bradshaw was lying about the

events surrounding Reynolds’ death, what would Officer Rainey

have told Bradshaw about the results had he passed the test? In any

event, the use of an unreliable device to extract a confession should

carry great weight on the totality scale negating a finding of waiver.

Peace on the charge of furnishing liquor to a minor with bail set

at $10,300 (Ex.11, Custody Report, Officer Hays, dated 9-15-

80, p. I).

That afternoon, the Tillamook County Distriet Attorney

directed the police to charge Bradshaw with manslaughter,

felony driving while revoked and driving under the influence

(Ex.11, Police Information Reports, Officer Hays, dated 9-17-

80, p. 1-2; Officer Stephenson, dated 9-16-80, p.2). Bradshaw

was then arraigned on the more serious charges, arising from

his confession at 7 p.m. (Ex.11, Police Information Reports,

Officer Nicholson, dated 9-17-80, p.1). Bail was increased to

$25,300 (Ex.11, Police Information Report, Officer Stephen-

son, dated 9-16-80, p.1).

The record is silent as to why Bradshaw was not arraigned

earlier Monday morning at the Tillamook County Courthouse

where the polygraph was later given.

The record discloses that Officer Hays made a pretext arrest

of Bradshaw for furnishing alcohol to a minor“ which was

illegal and void from its inception under Oregon law. The

„Oregon Revised Statutes 471.410(2), (3)(a):

2) No person other than his parent or guardian shall sell, give or

otherwise make available any alcoholic liquor to any person under the

age of 21 years. A person violates this subsection if he sells, gives or

otherwise makes available alcoholic liquor to a person with the

knowledge that the person will violate this subsection.

“(3) Upon violation of subsection (2) of this section, the court shall

impose a mandatory minimum sentence as follows:

“(a) Upon a first conviction for the offense, a fine of $200.”

charge of furnishing alcohol to a minor is an unclassified

violation” carrying a maximum penalty of a $250 fine.“

Officer Hays’ statutory authority to arrest Bradshaw with-

out a warrant was limited under ORS 133.310(1)(a), (b) as

follows:

“(1) A peace officer may arrest a person without a

warrant if the officer has probable cause to believe that

the person has committed:

a) A felony, a Class A misdemeanor" or an unclassi-

fied offense for which the maximum penalty allowed by

law is equal to or greater than e maximum penalty

Oregon Revised Statutes 161.565:

“An offense is a violation if it is so designated in the statute defining

the offense or if the offense is punishable only by a fine, forfeiture,

fine and forfeiture or other civil penalty. Conviction of a violation

does not give rise to any disability or legal disadvantage ba ed on

conviction of a crime.”

Oregon Revised Statutes 161.575:

“(1) Any violation defined in the Oregon Criminal Code is ex-

pressly designated in the section defining the offense. Any offense

defined outside this code which is punishable as provided in ORS

161.565 shall be considered a violation.

“(2) Violations are not classified.”

Oregon Revised Statutes 161.635(3):

“(3) A-sentence to pay a fine for a violation shall be a sentence to

pay an amount, fixed by the court, not exceeding $250.”

Oregon Revised Statutes 161.615(1):

“Sentences for misdemeanors shall be for a definite term. The

court shall fix the term of imprisonment within the following limita-

tions:

“(1) For a Class A misdemeanor, 1 year.”

allowed for a Class A misdemeanor, or a major traffic

offense as defined in ORS 484. 010(5);“ or

“(b) Any other offense in the officer’s presence.

The charge of furnishing alcohol to a minor did not qualify as

a violation for which defendant could be arrested without a

Oregon Revised Statutes 484.010(5):

“(5) ‘Major traffic offense’ means a violation of any of the follow-

ing provisions of law or a city ordinance conforming thereto:

“(a) Reckless driving as defined in ORS 487.550.

“(b) Driving while under the influence of intoxicants, as defined

in ORS 487.540.

de) Failure to perform the duties of a driver involved in an

accident or collision, as defined in ORS 483.602 (1) and (2) and

“(d) Driving while suspended or revoked, as defined in ORS

487.560.

“(e) Fleeing or attempting to elude a police officer, as defined in

ORS 487.555.

“(f) Driving after being declared to be a habitual offender, as set

forth in ORS 484.740.”

Oregon Revised Statutes 487.550(2):

“(2) Reckless driving is a Class A misdemeanor.”

Oregion Revised Statutes 487.540(2):

“(2) Driving while under the influence of intoxicants is a Class A

misdemeanor.”

Oregon Revised Statutes 487.560(5), (6):

“(5) Except as provided in subsection (6) of this section, driving

while suspended or revoked is a Class A misdemeanor.

“(6) Driving while suspended or revoked is a Class C felony if the

suspension or revocation was the result of a finding that the person is

an habitual traffic offender under ORS 484.730 or of a conviction for

any of the following offenses:

“(a) Any degree of murder, manslaughter, criminally negligent

homicide or assault resulting from the operation of a motor vehicle.

warrant. This leaves all of the factual circumstances relied on

by the Attorney General to show initiation, waiver and the

actual confession in an atmosphere of unlawful detention.“

“(b) Any crime punishable as a felony with proof of a material

element involving the operation of 4 motor vehicle.

de) Failure to perform the duties of a driver involved in an

accident or collision which results in physical injury or death to any

person.

“(d) Reckless driving.

de) Fleeing or attempting to elude a police officer.

“(f) Driving while under the influence of intoxicants.”

Oregon Revised Statutes 487.555(4):

“(4) Fleeing or attempting to elude a police officer is a Class A

Misdemeanor.” ;

Oregon Revised Statutes 487.740:

“Except as provided in ORS 484.735(2), it shall be unlawful for any

person to operate a motor vehicle in this state while the order of the

court prohibiting such operation remains in effect. A person who

violates this section commits a Class C felony.”

10 Trial defense counsel at no time presented a direct claim that

obtaining Bradshaw’s confession, a fruit of an illegal arrest, violated

Oregon’s arrest statutes or any constitutional provision, state or

federal. See Wong Sun v. United States, 371 U.S. 471 (i963); Taylor

v. Alabama, 454 U.S. 903 (1982); Dunaway v. New York, 442 U.S.

200 (1979); Brown v. Illinois, 422 U.S. 590 (1975); Nardune v. United

States, 308 U.S. 338 (1939); State v. Lloyd, 22 Or. App. 254, 538 P. 2d

1278 (1975). For this reason and the fact that the issue at the appel-

late court level has always been addressed as a “per se” problem

under Edwards, the assertion was not separately assigned as error in

Oregon’s appellate courts.

Defendant does not contend that a violation of Oregon’s arrest

statutes necessarily abridges Fourth Amendment and Due Process

standards. See Street v. Surdyka, 492 F.2d 368 (4th Cir. 1974). But

the Attorney General has opened the door in his quest tor an analysis

of this case under the “totality of the circumstances” test. The in-

vasion of Bradshaw’s personal liberty including the indignity of Offic-

It might be argued by the state to rebut this claim, that there

are no facts in the record to show Officer Hays did not in good

faith believe be had the authority to arrest Bradshaw for

furnishing alcohol to a minor.”

In Officer Hays’ Special Report“ describing the discussions

of 5:45 p.m., Sunday, September 14, 1980, with Bradshaw at

Reynolds’ cabin and prior to taking Bradshaw to the police

station, Officer Hays wrote: “Bradshaw wanted to know if he

would be in trouble for furnishing liquor to a minor since he had

bought a fifth and a pint of Black Veivet whiskey which he had

given Renolds to drink.”

It is clear at this point Officer Hays had probable cause to

cite Bradshaw on the charge of furnishing. Bradshaw’s state-

ments were corroborated by the empty bottles discovered in

Reynolds’ cabin and by the blood alcohol content of Reynolds’

blood.

er Hays’ warrantless arrest, handcuffing, probable fingerprinting,

photogranhing, search and imprisonment in jail clothes without bail

or with excessive bail dispels any notion of a valid waiver.

Officer Hays’ good intent is initially refuted in that Hays had the

authority to issue a citation in lieu of arrest which any reasonable

officer would have done on a violation that carried a maximum penal-

ty of a $250 fine.

Oregon Revised Statutes 133.055:

“(1) A peace officer in lieu of taking the person into custody may

issue and serve a citation to the person to appear at the court of the

magistrate before whom the person would be taken pursuant to ORS

133.450.”

Oregon Revised Statutes 133.045(1):

“ORS 133.055 shall apply in any instance when a person is subject

to arrest on a misdemeanor or violation charge or on a felony charge

which may be deemed a misdemeanor charge after sentence is im-

posed and:

“(1) The arrest is made without a warrant pursuant to ORS

133.310;or* * * .”

Ex. II, dated 9-17-80.

Instead of arresting Bradshaw, Officer Hays emphasized

that Bradshaw was not in custody but had voluntarily come to

the police station. Officer Hays even advised Bradshaw of his

Miranda rights (J.A. 10-11; Tr. 16-17).

Officer Hays was then given eight additional opportunities

to arrest Bradshaw for furnishing at the police station:

“A. [BRADSHAW)]: I contacted him at, let's see, he

t off work at 5:00. I caught him coming home at 5:30, and

asked him if he wouldn't like to drink a little bit of

whiskey.

“(HAYS): Okay.

“ke K K * *

“A. Lou know. And, so I walked = te liquor store, and

I picked up a pint and a fifth of whiskey, Black Velvet

. Un huh.

“kk * * *

“A. And then after she came home, well me and Lowell

went over, and we was drinking some whiskey.

“kk * * *

“A. And, anyway we was, we was over there and we was

drinking whiskey and everything. He went down to the

phone booth to call his girl friend, but, I presume it was his

girl friend that was there.

sk eK * *

“A. Youknow. And he came back up, and we was settin

there and we was listening to some rock and roll music an

looking at TV at the same time and drinking whiskey.

„A. Uh huh.

“kk * * *

“Q. During the period of time that uh, these two girls

and these two guys were there, do you recall what, what

happened when all, when all six of you were there. You

had two guys, two girls, you, and Lowell. Were you just

drinking whiskey a

“kk * * *

“Q. Sure. Now, do you uh, remember some beer that

was there, uh, you said that was drank last night, where

did this beer come from?

“A. The Olympia beer that was there? I went down to

the store...

“Q. There was a Schlitz and there was an Oly.

“A. There was a Schlitz?

“Q. Yeah. Schlitz bottle sitting on...

“A. I don't know where the Schlitz come from, because I

drink Olympia myself.

“Q. Uh huh. Did you buy...

...

“Q. Buy some

“A. Yes. I went down to the store earlier that day,

around 4:00 or 4:15, and I picked up a six-pack of Olympia.

And I was sitting there drinking it, and then when Lowell

got off work, I asked him if he wouldn’t like a beer, and he

goes, ‘Yeah,’ and we got sitting over there and got talking

about whiskey

“Q. Uh huh.

“A. And stuff, and I asked him if he felt like drinking a

little bit of whiskey, and he said yes. So that’s when I went

down to the liquor store and bought a fifth and a pint.

“Q. Uh huh.

“A. (inaudible)

“Q. Do you know how old Lowell is?

“A. I think that, I’m not really for sure, but I think he

said he was only 20 years old.

“Q. Yeah. That’s how old he is.

“A. You know, and that’s the reason why I asked the

officer there that, if there’d be any charges brought

against me, you know, for buying a minor alcohol.

“Q. This is possible.

“A. (inaudible)

“Q. It’s very possible.

“A. If it is, I’m willing to face the, you know.

“Q. Okay. Well, we'll work with that later, all right?

“A. I mean because...

“Q. The thing is we want to determine exactly what

happened last night. So, in going over your mind, as best

you can remember, the people that were in the apartment

at the time you got hit on the head was Lowell...

“A. Uh huh.

“Q. A girl named Julie or Julia, something like that.

“A. Judy or Julie.

“Q. Judy, another girl who you thought’s name was Kim

“hk * * * *

“Q. Uh huh. 2 Is there anything else that happened

this evening that uh, or happened yesterday evening that

you happened to think about?

“A. Nothing that I know of, only that me and Lowell was

partying last night, you know.

“A. Uh huh. Partying pretty heavy, huh?

“A. Well, not, not what...

“Q. Well...

“A. You really call heavy...

“Q. (inaudible) well, a fifth anda...

“A. We was setting around.

“Q. Pint of Black Velvet and some beer would be.

“A. Yeah.

“Q. To me would be pretty heavy.

“A. Well, yeah.

“Q. Maybe not to you, but to me.

“A. I guess it would be, really, you know...

“Q. Between the two of you.

“A. But other than that

(J.A. 48-65; Ex. 2, at 3-19)

Officer Hays’ interrogation can be characterized as

remarkably friendly. He carefully recorded Bradshaw’s sus-

pected inconsistencies about the assault which was already

rebutted by other witnesses who had been contacted (J.A.

53-55; Ex. 2, at 8-10). The officer also established that Brad-

shaw could not legally drive an automobile on Oregon high-

ways (J.A. 63; Ex. 2, at 18).

As the interrogation drifted towards its conclusion, Officer

Hays was caught on the horns of a dilemma. Hays knew he had

enough evidence to charge Bradshaw with furnishing but he

did not have probable cause to arrest Bradshaw in connection

with Reynolds’ death. On the tape, Hays refers to talking with

another person when he shut off the recorder (J.A. 70; Ex. 2, at

24). And while the record is silent during this gap in the tape,

the decision was no doubt made to reverse Officer Hays’ ami-

able approach by accusing Bradshaw of killing Reynolds and at

the same time arresting him on the violation with the hope that

a confession would result. The plan backfired when Bradshaw

exercised his Miranda rights.

Bradshaw’s illegal detention is further aggravated by the

fact that the record is silent as to whether he was actually

given the opportunity to use the telephone to contact an attor-

ney or his grandmother after his arrest.

“(Direct questioning by Mr. Grove, the District Attorney, of

Officer Hays]:

“Q. Okay. To the best of your knowledge, would he have had an

opportunity to make a phone call to a lawyer had he had the chance?

“A. Yes, at the jail, I believe. He didn’t know one and he wanted

to get a hold of Mrs. Stockdale, I believe, Irma Stockdale and he had a

Another relevant fact is that Bradshaw was not arraigned on

the furnishing charge Monday morning but was arraigned on

charges arising out of his confession after business hours at 7

p.m. when bail was increased to $25,300.

Lastly, in considering the “totality of the circumstances,” it

should be emphasized that on the evening of Saturday,

September 13, 1980, Bradshaw was found unconscious on the

ground near Reynolds’ cabin and the residence where Brad-

shaw was staying (Tr. 134-135, 144). Bradshaw had a large

laceration on the back of his head. He complained of head and

chest pains and was extremely intoxicated (Tr. 135). Brad-

shaw, an apparent alcoholic, later told a doctor at the hospital

he had consumed two and one-half fifths of whiskey (Ex. 7, p.

2).* Bradshaw had been drinking all day preceeding the Sun-

day interrogation (J.A. 47).

In reviewing the above facts under a totality-of-

circumstances test, waiver of the right to counsel must be

knowingly, intelligently and voluntarily made. The state must

prove an intentional relinquishment of a known right. Johnson

v. Zerbst, 304 U.S. 458, 464 (1938). Miranda absolutely bars

post-invocation/pre-waiver interrogation. Under the minority

interpretation of Edwards, whether the arrestee of the police

couple other things to do because I believe Mrs. Stockdale was

leaving that night to go to St. Helens.

“Q. Okay.

“A. And he wanted to let them know—in fact, a police officer, I

believe, went back to the—and told Mrs. Stockdale that he was in the

Tillamook County Jail.” (J.A. 18-19; Tr. 24-25).

The record does not disclose whether Bradshaw actually was given

the opportunity to call anyone. This is corroborated by the fact that

the police contacted Bradshaw’s grandmother who was leaving town

but never told her of her grandson’s request. This left Bradshaw with

no one to contact prior to the polygraph test.

Ex. 7“ refers to the Emergency Hospital Record.

initiated the new dialogue is an important factor. Id., at 491

(Powell, J., concurring).

Additional principles apply in reviewing the waiver issue.

North Carolina v. Butler, 441 U.S. 369, 373 (1979) indicated:

“The courts must presume that a defendant did not

waive his rights; the prosecution’s burden is great.

Michigan v. Mosley, supra, cautioned:

“[T]Jhe accused having expressed his own view that he is

not competent to deal with the authorities without legal

advice, a later decision at the authorities insistence to

make a statement without counsel’s presence may proper-

ly be viewed with skepticism.” Id., at 110, n.2. (White, J.,

concurring).

The state must clearly show an “affirmative waiver,” Carnley

v. Cochran, 360 U.S. 506, 516 (1962), that has been “specifical-

ly made.” Miranda v. Arizona, supra, 384 U.S. at 470. A

strong preference exists in favor of express waivers, but in

limited cases a waiver “can be clearly inferred from the actions

and words of the person interrogated.” North Carolina v.

Butler, supra, 441 U.S. at 373. A waiver will not be presumed

from a silent record, Tague v. Louisiana, 444 U.S. 469 (1980).

Miranda requires that ambiguity be interpreted against the

interrogator. Finally, the Seventh Circuit has held that after a

clear showing of the assertion of the right, the logic of Miranda

requires a “proportionally clearer showing” of the waiver fac-

tors in order to establish a valid waiver. Kennedy v. Fairman,

618 F.2d 1242, 1246 (7th Cir. 1980). sia

In light of these principles, the state did not adduce suffi-

cient articulable facts to rebut the strong presumption against

waiver. Bradshaw did not expressly waive his right to counsel.

He did not specifically indicate an intention to reopen the

criminal investigation.“ Other than saying he understood his

The readvice of Miranda rights before the polygraph examina-

tion on Monday morning does not establish waiver. Hays coerced

Bradshaw’s uncounseled agreement to take the test. Only the con-

“standing” (whatever that means in this context), Bradshaw

remained mute.

As Bradshaw remained silent, Corporal Hays increased the

pressure against him. Hays told Bradshaw he was arrested on

the furnishing charge and told him their destination. Hays

placed Bradshaw, who had been previously handcuffed, in the

front seat of the patrol car in order to interrogate him. While

driving to jail, Hays reaccused him of killing Reynolds in a

vehicular homicide. Hays suggested he take a polygraph exam-

ination to “clear this matter up and find out actually what

happened.” (J.A. 17-18; Tr. 23-24). After being confronted

with this calculated barrage of interrogation tactics, Bradshaw

finally succumbed to the pressure. As a product of this compul-

sion, he “involuntarily” agreed to take the polygraph examina-

tion. On this record, the state has failed to prove a valid waiver

under the totality- of- cireumstances standard.

CONCLUSION

For the above reasons, the judgment of the Oregon Court of

Appeals should be affirmed.

Respectfully submitted,

Gary D. Bascock

Public Defender

JOHN DAUGIRDA

Deputy Public Defender

Counsel for Respondent

sultation with a lawyer could correct the situation. Readvice of rights

in this case should carry no more weight towards finding a valid

waiver than the advice of rights that was given in Taylor v. Ala-

bama, supra; Dunaway v. New York, supra, and Brown v. Illinois,

supra.

APPENDIX A

A LIST OF NON-INITIATORY STATEMENTS

After an arrestee has asserted the right to counsel, he may

make statements concerning his independent statutory and

constitutional rights or concerning irrelevant matters without

initiating further interrogation. To establish initiation, the

state must show that an arrestee clearly and specifically

reopened the substantive criminal investigation. The following

list involves classes of hypothetical statements that do not

constitute initiation.

I. A STATEMENT MADE AT THE ARREST SCENE OR

DURING TRANSPORTATION TO THE JAIL IS NOT

INITIATION IF IT IS “NORMALLY ATTENDANT TO

ARREST AND DETENTION” AND NOT RELEVANT TO

THE SUBSTANTIVE CRIMINAL INVESTIGATION.

Statements about being frisked.

Statements about being handcuffed.

Responses to an officer's instructions concerning his be-

havior in the patrol car.

Statements about defendant's physical condition.

1. Medical symptoms.

2. Need to urinate.

Statements about defendant's state of mind.

1. Anger

2. Concern or confusion.

3. Paranoia.

Statements about environmental matters.

1. Weather.

2. Traffic conditions.

3 Landscape.

4. Condition of squad car.

Statements about the officer.

1. Irrational insults.

2. Comments concerning the officer 's appearance, atti-

tude or conduct.

Requests to contact other persons.

1. Attorney.

2. Relatives or friends.

3. Desire to reschedule appointments.

Statements concerning the safekeeping of defendant's

property.

1. Defendant's personal effects.

2. Disposition of his automobile.

Statements concerning procedural aspects of arrest and

custody.

1. Location of the jail.

2. Opportunity for a phone call.

3. Parameters of security release.

4. Detention procedures.

a. Meals.

b. Visitors.

c. Medical treatment.

d. Conditions.

5. Time of arraignment.

6. Time sequence for appointment of counsel.

II. A STATEMENT MADE DURING THE BOOKING

PROCESS IN WHICH A DEFENDANT DOES NOT

SPECIFICALLY ASK TO REOPEN THE CRIMINAL IN-

VESTIGATION IS NOT INITIATION.

Statements during intake interview.

Statements during identification photograph procedure or

fingerprinting.

Statements during exchange of clothes, property invento-

ry. search of person, seizure of physical evidence.

Request for a phone call.

III. A STATEMENT MADE TO A SECURITY RELEASE

OFFICER IN THE ROUTINE INTERVIEW FOR RE-

LEASE AND APPOINTMENT OF COUNSEL IN WHICH

A DEFENDANT DOES NOT SPECIFICALLY ASK TO

REOPEN THE CRIMINAL INVESTIGATION IS NOT

INITIATION. SEE ORS 136.040.

IV. ASTATEMENT MADE IN JAIL BEFORE THE ARRIV-

AL OF COUNSEL IN WHICH X DEFENDANT DOES

NOT SPECIFICALLY ASK TO REOPEN THE CRIMI-

NAL INVESTIGATION IS NOT INITIATION.

Request for telephone call.

Request for medical attention.

Request for food or cigarettes.

Request for reading material.

Complaints about jail conditions or conflicts with other

inmates.

Questions about the procedural steps normally attendant to

detention.

V. SPECIFIC EXAMPLES OF NON-INITIATORY RE-

MARKS.

* Enn D>

Well, what is going to happen to me now?

When may I call my lawyer?

When will a lawyer be appointed?

When will the lawyer see me?

When may I make a phone call?

May I call my grandmother?

May I reschedule my appointments?

Where are you taking me?

How far away is the jail?

Will I be able to see a doctor concerning my injured head?

May I be released on my own recognizance or admitted to

security release?

APPENDIX B

ALI, MODEL CODE OF PRE-ARRAIGNMENT

PROCEDURE 42-50 (1975)

(Excerpts)

ARTICLE 140. CONDITIONS OF INVESTIGATION DURING

CUSTODY OF AN ARRESTED PERSON

Section 140.1. Permitted Investigation

Subject to the provisions of this Code and other laws, any

law enforcement officer or other authorized person may

(a) question an arrested person as authorized in Sec-

tion 140.8;

(b) conduct procedures designed to permit the

+ oe of an arrested person, as authorized in Arti-

cle 160.

Section 140.2. Deception as to Obligation to Make State-

ment

No law enforcement officer shall attempt to induce an

arrested person to make a statement by indicating that such

person is legally obliged to do so.

Section 140.3. Abuse, Threats, Denial of Necessities

No law enforcement officer shall attempt to induce an

arrested person to make a statement or otherwise to cooper-

ate, by subjecting, or threatening to subject, such person or

any person in whom such person is interested to any form of

abuse, including any practice designed to unsettle, frighten or

degrade, or by depriving any arrested person of adequate food,

water, medical attention, rest or other physical necessities.

Section 140.4. Unfair Inducements of Statements

No law enforcement officer shall attempt to induce an

arrested person to make a statement or otherwise cooperate

(a) questioning of such unfair frequency, length or

persistence as to constitute harassment or such person; or

(b) any other method which, in light of such person’s

age, intelligence and mental and physical condition,

unfairly undermines his ability to e a choice whether

to make a statement or otherwise cooperate.

Section 140.5. Use of Drugs, Hypnosis, Polygraph or

Similar Techniques

No law enforcement officer shall seek to obtain information

from an arrested person by using drugs or hypnosis, or a

polygraph test or other such procedure designed to determine

the truthfulness of statements by body reactions, unless, after

such procedure has been proposed, such person has had an

opportunity to consult with counsel for a period adequate to

obtain advice concerning such procedure and has consented

thereto.

Section 140.6. Creating Risk of Untrue Incriminatory

Statements

No law enforcement officer shall take any action which is

designed to, or which under the circumstances creates a signif-

icant risk that it will, result in an untrue incriminating state-

ment by an arrested person.

Section 140.7. Access, Consultation and Telephoning

Rights

(1) Access to an Arrested Person. An attorney undertak-

ing to act as counsel for an arrested person shall have prompt

access to such person, by telephone, and in person on counsel’s

arrival at any place where such person is detained. Counsel for

an arrested person shall not be prevented from staying at any

such place and being allowed access to the arrested person

whenever such person requests his presence. If no counsel for

the arrested person is present, similar privileges must be

accorded to a relative or friend of the arrested person.

(2) Consultation and Telephoning Rights. An arrested

person shall be given reasonable opportunity from time to time

during his detention to consult in private with counsel or any

relative or friend present in lieu of counsel, and, upon request,

to use the telephone.

Section 140.8. Conditions on Questioning Arrested Per-

sons

(1) No Questioning Prior to Warning or Access to Tele-

phone. No law enforcement officer shall question an arrested

person after he has been brought to the police station or other-

wise attempt to induce him to make a statement unless he has

been advised by the station officer in plain understandable

language

(a) that he is not obliged to say anything and that

anything he says may be used in evidence against him;

(b) that he will not be questioned unless he wishes,

and that he may consult a lawyer before being questioned

— may have a lawyer present during any questioning;

(e) that if he wishes to consult a lawyer or to have a

lawyer present during questioning, but is unable to obtain

one, he will not be ye ae until a lawyer has been

provided for him; such advice shall also include informa-

tion on how he may arrange to have a lawyer so provided.

No law enforcement officer shall question any arrested person

who has been brought to a police station until he has been

afforded an opportunity to use the telephone pursuant to Sub-

section 130.1(5).

(2) Waivers. Unless an arrested person is represented by

counsel, and his counsel is present or he and his counsel have

consented thereto, such person shall not be questioned after he

has been brought to the police station unless he waives his right

to counsel in accordance with the following procedures:

(a) After giving the warnings of rights required by

Subsection (1), the station officer may then inquire

whether the arrested person wishes to waive his right to

counsel and to make a statement or consent to questioning

in the absence of counsel.

(b) Ifthe arrested person in response to such inquiry

indicates that he wishes to make a statement or consents

to questioning in the absence of counsel, he shall be asked

to sign a writing to that effect which the station officer

shall countersign.

(e) The arrested person shall be informed that any

— given hereunder may be revoked by him at any

(d) No waiver shall be sought from an arrested person

at any time after he has indicated in any manner that he

does not wish to be questioned or that he wishes to consult

counsel before submitting to questioning.

(3) Revocation of Waiver. If at any time after an arrested

person has waived his right to counsel pursuant to Subsection

(2), such person indicates in any manner that he wishes to

revoke such waiver, or that he does not wish to be questioned

or to make a statement, or that he wishes to consult counsel

before submitting to further questioning or making a state-

ment, such waiver shall be deemed revoke‘.

(4) Period of Lawful Questioning. No law enforcement

officer shall seek a waiver of the right to counsel from an

arrested person, or question such person pursuant to such a

waiver, after the later of (a) the end of the [two] hour period

provided for in Subsection 130.2(1) or (b) the end of the period

of screening authorized by Subsections 130.2(2) and (3).

(5) Non-Investigative Questioning. As used in this Code

“questioning” refers to questioning designed to investigate

crimes or the involvement of the arrested person or others in

crimes. Compliance with the procedures for questioning set

forth in this Code is not required in connection with other

conversation between the arrested person and law enforce-

ment ‘officers.

(6) Questioning to Obtain Information Not For Use

Against Arrested Person. A law enforcement officer may ques-

tion an arrested person without complying with this Section if

prior thereto the prosecuting attorney has determined that he

will noi use against the arrested person in any proceeding any

statement obtained by such questioning or any other evidence

obtained as a result of such statement. Such determination by

the prosecuting attorney shall be communicated to the

arrested person prior to such questioning and a written record

thereof shall be furnished to him. No stavement or other evi-

dence obtained as a result of a statement obtained pursuant to

this Subsection shall be used in any proceeding against the

arrested person.

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.