# Respondents Brief — Arizona v. Roberson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0708%3A05 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 1988 - **Citation:** 486 U.S. 675 ## Text Cae ten Boe Pe al » “at ay cor ly >. ey : 4 * + ‘ es t re iv Ny ae a ) Ss : ? a EY 46 Ea Sekar ns _, e. es a Andee hrcA 2 i 7 i QUESTIONS PRESENTED FOR REVIEW Did the trial court and the Court of Appeals properly hold that since the Respondent had invoked his Fifth Amendment right to counsel during his initial interroga- tion and counsel was never provided, that statements made by Respondent, pursuant to subsequent interroga- tion, must be suppressed? ii TABLE OF CONTENTS Page QUESTIONS PRESENTED For REVIEW............--- i TABLE OF CASES AND AUTHORITIES. ...........s0ee00- iii STATEMENT OF THE CAGE... occ cccccccccccccscosees 1 SUMMARY OF ARGUMENT. ...........ccecccecccceces 2 [PFRODUCTION . ooo cccccccecsceesseunen ne 3 ARGUMEINUES . «occ ccccvecesoecesunennnee 7 I. THE TRIAL Court AND THE CourT Or APPEALS PROPERLY HELD THaT Mr. ROBERSON’S STATE- MENTS CouLpD Nort BE UsEp IN THE PRosECcU- TION’S CASE-IN-CuH1EF By A CorREcT APPLICA- TION OF MIRANDA V. ARIZONA AND EDWARDS V. ARIBOUR oc ccccccceccéeessessn ee 7 II. Since THE FirtH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION Has As Its Focus THE StaTE OF MIND OF THE SusPEcCT, WHETHER THE Po.ice OFrFricerRS WuHo INITIATED THE REINTERROGATION OF THE SUSPECT KNEW OR Dip Not Know OF THE SusPECcT’s Prior INvoca- TION OF His FirtH AMENDMENT RiGHuT To Coun- SEL, AND WHETHER THE REINTERROGATION FocusEeD ON “CRIME ONE” OR “CRIME Two” ARE IRRELEVANT IN DETERMINING WHETHER THE SuSPECT’s FIFTH AMENDMENT RICHTS UNDER MIRANDA AND EDWARDS WERE VIOLATED ..... 12 III. Tuts Court SHOULD RETAIN Epwarp v. ARI- ZONA AND Its PER SE RULE AGAINST POLICE- INITIATED REINTERROGATION OF AN In- Custopy Suspect AFTER HE Has INVoKED His F'1FTH AMENDMENT RIGHT To COUNSEL ....... 18 IV. RESPONSE To SoLIciTroR GENERAL’SARGUMENT 23 TABLE OF CASES AND AUTHORITIES Cases Page Arizona v. Mauro, _ U.S. ——, 107 S.Ct. 1931, teenie ccececepucceccccce 18-19 Brown v. Walker, 161 U.S. 591 (1896). ................ 3,4 Cohens v. Virginia, 6 Wheat. 264, 387 (1821) .......... 4 Connecticut v. Barrett, ___. U.S. ——, 107 S.Ct. 828 ee ace sccscccecccceccccce 16, 17 Edwards v. Arizona, 415 U.S. 477, 485, 101 S.Ct. 1880 PEE ih adncapeescecdvececcccccccces passim Escobedo v. Illinois, 378 U.S. 485 (1963). ............. 4 Haynes v. Washington, 373 U.S. 508, 519............. 5 Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477 (1985)... 17 Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489 (1964) ..... 3 Michigan v. Jackson, _. U.S. ——, 106 S.Ct. 1404, ee dec cecccececcsecesscccece 17 Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321 (1975) passim Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 DPEUCER used encesecescoscesccceccces passim Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135 Ne, es asecestececceces 7, 8, 12, 17 ES, Sccccccccccccserscccccccccccccces 15 Solem v. Stumes, 465 U.S. 638, 104 S.Ct. 1338 (1984) .. 6 State v. Routhier, 137 Ariz. 90, 669 P.2d 68 (1983)..... 9, 10 United States ex rel. Espinoza v. Fairmen, 813 F.2d 117, ee ccc ce cescescccceces 17 Westover v. U.S., 384 U.S. 496. ............0 eee eeee 13, 14 Respondent does not take issue with Petitioner's state- ment of the trial court and Court of Appeals holdings, its jurisdictional statement and its citation of the constitu- tional and statutory provisions involved. STATEMENT OF THE CASE For the purpose of simplification, Respondent will refer to the April 16, 1986 burglary as Crime One and the April 15, 1986 burglary as Crime Two. On April 16, 1986, Respondent was arrested near the scene of a burglary which had occurred only moments earlier. At that time, he was advised of his Miranda rights by the arresting officer, Officer Perez, and “subject replied that he understood his rights and that he wanted a lawyer before answering any questions.” (R.T. of April 3, 1986 at 26). After he invoked his right to counsel, another officer, Officer Garrison, questioned Mr. Roberson at the scene of the arrest regarding Crime One. (/d. at 23). Shortly thereafter, another officer, Detective Quinn, questioned Mr. Roberson at the scene of the arrest, again, regarding Crime One. (R.T. of October 17, 1985). The officers transported Mr. Roberson to an eastside police substation, and there, Detective Quinn and another officer, Detective Wright, engaged in further interroga- tion of Mr. Roberson regarding Crime One. (/d. at 9-11). Next, the officers booked Mr. Roberson and put him in jail. At this point, Mr. Roberson still had not been allowed to consult with counsel. The next day, still two more officers approached Mr. Roberson while he was in jail and further interrogated Mr. Roberson regarding Crime One. On April 19, still in jail and having been in continuous custody, another group of officers, Detectives Cota- Robles, Quinn and Thorson, went out to the jail and interrogated Mr. Roberson about Crime Two. The detec- tives read to him his Miranda rights. Mr. Roberson stated 2 that he understood them and wanted to talk. Mr. Reber- son had not spoken to a lawyer since his arrest on April 16, 1986. (R.T. of April 3, 1986 at pp. 3-7, 15-16). The trial court and the Court of Appeals suppressed the statements made by Mr. Roberson during the April 19 questioning in the state's case-in-chief regarding Crime Two, finding the statements were obtained in violation of Mr. Roberson’s Fifth Amendment rights. It is those state- ments made on April 19, regarding Crime Two, which are the subject of this appeal. SUMMARY OF ARGUMENT Miranda and Edwards clearly hold that a defendant’s right to silence under the Fifth Amendment also entails the right to have an attorney present before speaking during custodial interrogation. The bright line rules of Miranda and Edwards require a finding that where a defendant remains in custody after requesting counsel, any subsequent interrogation would be unduly coercive and, therefore, statements made in subsequent inter- rogations must be suppressed. The subject matter of those interrogations is irrelevant under Fifth Amend- ment analysis since it is the voluntariness of the state- ments that is the issue. In the present case, Mr. Roberson clearly decided to speak to counsel before making state- ments to the officers and indicated as much to the police. He was then confined for several days and reinterrogated without speaking to a lawyer. The statements made dur- ing the subsequent interrogation were properly sup- pressed. The trial court and the Court of Appeals correctly held that the statements should be excluded from the State’s case-in-chief. This Court should affirm the lower courts’ decisions. 3 INTRODUCTION Prior to engaging in an analysis of the Petitioner's spe- cific arguments, it is important to recall some basic princi- ples of American jurisprudence regarding criminal procedure laws grounded in the United States Constitu- tion. The Fifth Amendment to the United States Constitu- tion provides that “No person... shall be compelled in any criminal case to be a witness against himself.” This privilege against self-incrimination applies to the states pursuant to the Due Process Clause of the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489 (1964). Evidence obtained in violation of this privilege must be excluded from trial. Edwards v. Arizona, 415 U.S. 477, 485, 101 S.Ct. 1880 (1981). In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966), the Court quoted extensively from an early Fifth Amendment case, Brown v. Walker, 1611 3. 591 (1896), to point out the reasons why the frame of the United States Constitution found it so imperat provide each person the privilege against self-incr tion: Over 70 years ago our pre’ ors on this Court eloquently stated: The maxim nemo tenetur seipsum accusare had its origin in a protest against the inquisitorial and manifestly unjust methods of interrogating accused persons, which [have] long obtained in the continental system, and, until the expulsion of the Stuarts from the British throne in 1688, and the erection of additional barriers for the protection of the people against the exercise of arbit power, [were] not uncommon even in England. le the admission or confessions of the prisoner, when vol- untarily and freely made, have always ranked high 4 in the scale of incriminating evidence, if an accused person be asked to explain his apparent connection with a crime under investigation, the ease with which the questions put to him may assume an inquisitorial character, the temptation to press the witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions, which is so painfully evident in many of the earlier state trials, notably in those of Sir Nicholas Throckmorton, and Udal, the Puritan minister, made the system so odious as to give rise to a demand for its total abolition. The change in the English criminal procedure in that particular seems to be founded upon no statute and no judicial opinion, but upon a general and silent acquiescence of the courts in a popular demand. But, however adopted, it has become firmly embedded in English, as well as in American juris- prudence. So deeply did the iniquities of the ancient system impress themselves upon the minds of the American colonists that the States, with one accord, made a denial of the right to question an accused person a part of their funda- mental law, so that a maxim, which in England was a mere rule of evidence, became clothed in this country with the impregnability of a constitutional enactment. Brown v. Walker, 161 U.S. 591, 596-597 (1896). 384 U.S. at 442-43. In the words of Chief Justice Marshall, 5 heavily on a suspect’s confession to a crime. The Court stated: We have learned the lesson of history, ancient and modern, that a system of criminal law enforcement which comes to depend on the ‘confession will, in the long run, be less reliable and more subject to abuses than a system which depends on extrinsic evidence independently secured through skillful investigation. As Dean Wigmore so wisely said: “TA]ny system of administration which permits the ; namation to trust habitually to compulsory self-disclosure as a source of proof must itself suf- fer morally thereby. The inclination develops to rely mainly upon such evidence, and to be satisfied with an incomplete investigation of the other sources. The exercise of the power to extract answers begets a forgetfulness of the just limita- tions of that power. The simple and peaceful pro- cess of questioning breeds a readiness to resort to bullying and to physical force and torture. If there is a right to an answer, there soon seems to be a right to the expected answer,—that is, to a con- fession of guilt. Thus the legitimate use grows into the unjust abuse; ultimately, the innocent are jeo ized by the encroachments of a bad system. Such seems to have been the course of experience in those legal systems where the privilege was not recognized.” 8 Wigmore, Evidence (3d ed. 1940), by fixing the privilege against self-incrimination in the Constitution, the precious right was secured “for ages to come, and ... designed to approach immortality as nearly as human institutions can approach it.” Cohens v. Virginia, 6 Wheat. 264, 387 (1821). Furthermore, the Court in Escobedo v. Illinois, 378 U.S. 485 (1963), recognized that American jurisprudence has traditionally taken a dim view of the State relying too 309. (Emphasis in original.) This Court also has recognized that “history amply shows that confessions have often been extorted to save law nag 1 oer — -- —- ~y effort ining valid and independent evidence.... | Sonne Washington, 373 U.S. 503, 519. (Footnotes omitted. ) 378 U.S. at 488-90. 6 In Miranda v. Arizona, supra, the Supeem recognized that custodial interrogations aie ‘one ently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.” Id. at 467, 86 S.Ct. at 1624. To combat the compelling pressures which are involved in xe very nature of custodial interrogations and to provide an in-custody suspect a full opportunity to exercise his Fifth Amendment right against self- incrimination, the Court formulated a set of procedural safeguards in order to secure the privilege against self- incrimination. The «rt in Miranda held that prior to initiating any que=cioning, the State must adequately and effectively apprise the suspect of his rights, “and the exercise of those rights must be fully honored.” Id M tranda goes on to say that when an accused requests to remain silent, “the interrogation must cease.” If he states that he wants an attorney, “the interrogation must cease = an attorney is present.” Jd. at 473-74, 86 S.Ct. at In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880 (1981), the Court formulated another procedural safe- guard designed to secure the privilege against self- incrimination. The Court in Edwards adopted the rule that when an accused has “expressed his desire to deal with the police only through counsel, [he] is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, excha.ges, or con- — with the police.” Jd. at 484-85, 101 S.Ct. at In a later case, Solem v. Stumes, 465 U.S. 638. 104 - + sarong (1984), the Court explained the effect of 7 Edwards established a bright line rule to safeguard pre-existing rights, not a new substantive require- ment. Before and after Edwards a suspect had a right to the presence of a lawyer, and could waive that right. Edwards established a new test for when that waiver would be acceptable once the suspect had invoked his right to counsel: the suspect had to initi- ate subsequent communication. 465 U.S. at 646. ARGUMENTS I. THE TRIAL COURT AND THE COURT OF APPEALS PROPERLY HELD THAT MR. ROBERSON’S STATE- MENTS COULD NOT BE USED IN THE PROSECU- TION’S CASE-IN-CHIEF BY A CORRECT APPLICA- TION OF MIRANDA V. ARIZONA AND EDWARDS V.ARIZONA. In Miranda and in the cases following Miranda, the Supreme Court has made a clear distinction among the cases in which an accused has merely invoked his rignt to remain silent and those cases in which he has invoked the right to counsel before answering questions. Where the accused simply asserts his right to remain silent, the police may resume custodial interrogation if the right of the accused to cut off questioning is scrupulously hon- ored. )ichigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321 (1975); foran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135 (1986). Jn the other hand, where the accused requests counsel, the interrogation must immediately cease and it may not resume until the accused is provided with coun- sel. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880 (1981). Discussing the difference between requesting counsel and merely remaining silent, the Court in Edwards stated: Miranda, itself indicated that the assertion of the right to counsel was a significant event and that once 8 exercised by the accused, “the inte one until an attorney is present.” 384 'S at 474. ‘wee cases have not abandoned that view. In : 7 wan v. Mosley, the Court noted that Miranda ad distinguished between the procedural safe- guards triggered by a request to remain silent and a request for an attorney and had required that inter- rogation cease until an attorney was present only if be individual stated he wanted counsel. In Fare v Michael C., the Court referred to Miranda’s “rigid e that an accused's request for an attorney is per se an invocation of his Fifth Amendment rights requir- ing that all interrogation cease.” And just last Term 7 a case where a suspect in custody had invoked his Miranda right to counsel, the Court again referred . the “undisputed right” under Miranda to remain sient and to be free of interrogation “until he had consulted with a lawyer.” Rhode Island v. Innis. We reconfirm these views and, to lend them substance emphasize that it is inconsistent with Miranda and re progeny for authorities at their instance, to rein- pi = ee im custody if he has clearly (Emaphesin saden 0 counsel. (Citations omitted), 451 U.S. at 485. In amore recent case, Moran v. Burbi } q ne, 475 U.S. 412, 106 S.Ct. 1135 (1986), the Court again noted the distinc- tion between a suspect's re weel quest for counse to remain silent: a When a suspect has re quested counsel, the inter- rogation must cease, regardless of any question of waiver, unless the suspect himself initiates the con- versation. (Emphasis added). 475 U.S. 414, n.1. Because the suspect in Moran simply requested to remain silent rather than requesting coun- ms 9 In Michigan v. Mosley, supra, Justice White stated succinctly in his concurring opinion the reason why the Court distinguishes between a simple request to remain silent and a request to remain silent until one can speak with an attorney: (T]he reasons to keep the lines of communication between the authorities and the accused open when the accused has chosen to make his own decisions are not present when he indicates inste« that he wishes legal advice with respect thereto. The authorities may then communicate with him through an attorney. More to the point, the 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 state- ment without counsel’s presence may properly be viewed with skepticism. (Emphasis added). 423 U.S. at 110, n.2. The Arizona court recognized the distinction between a suspect’s request for counsel and a mere request to remain silent. The Arizona Supreme Court, in State v. Routhier, 137 Ariz. 90, 669 P.2d 68 (1983), held that once an in-custody suspect had invoked his Fifth Amendment right to counsel, the police could not properly reinterro- gate the suspect until he was provided with counsel. It did not expand Edwards. The fact that the renewed question- ing pertained to a separate crime than the one for which he was initially arrested was found to be irrelevant. That fact lacked “any legal significance for Fifth Amendment purposes,” the court held. Jd. at 96-97, 669 P.2d at 76. The court in Routhier reached its decision by correctly and consistently applying well-settled principles of Fifth Amendment Constitutional Law, as explained in Miranda and Edwards. 10 In the present case, Mr. Roberson requested a lawyer immediately after being taken into custody. Instead of being allowed to speak with a lawyer, he was questioned four different times regarding Crime One (all in clear violation of Edwards), spent three days in jail, still with- out having an opportunity to consult with a lawyer, and on the third day of his incarceration, a detective approached Mr. Roberson, not at Mr. Roberson’s request, and ques- tioned him a fifth time since the invocation of his right to counsel. The only distinction was that he questioned him regarding a separate crime. As in Routhier, supra, the fact that the renewed questioning pertained to Crime Two is irrelevant and lacks any legal significance for Fifth Amendment purposes. A quote from the Arizona Supreme Court in State v. Routhier, supra, is particularly appropriate here to explain why the statements made by Mr. Roberson should be excluded from the State’s case-in-chief: The assertion of the right to counsel is an expression by the accused that he is not competent to deal with the authorities without legal advice. See Edwards v. Arizona, supra. The resumption of questioning in the absence of an attorney after an accused , be invoked his right to have counsel present durin police interrogation strongly suggests to an sumead that he has no choice but to answer. Thus, “a later decision at the authorities’ insistence to make a state- ment without counsel's presence may properly be _ viewed with skepticism.” es Michigan v. Mosley, 423 U.S. 96 (1975), White, J., concurring). Id. at 97-98, 669 P.2d at 76-77. There is compelling evidence that Mr. Roberson’ state- ments where involuntary. The type of police misconduct which occurred in this case was exactly the type which this Court attempted to prevent in Edwards v. Arizona. ll Mr. Roberson’s perception of whether he should talk or not was not affected by whether he was talking about “Crime One” or “Crime Two.” Rather, his sense of com- pulsion came from the oppressive custodial setting, the fact that he had requested a lawyer and was not provided with one, and the fact that he was questioned again and again by police officers after he had requested a lawyer. All of these factors combined strongly suggested to Mr. Roberson that he had no choice but to answer. Under these circumstances, there can be no finding that Mr. Roberson made the statements voluntarily and there can be no finding that Mr. Roberson made any valid waiver of his right to counsel. For, “[t]o permit the continuation of custodial interrogation after a momentary cessation would clearly frustrate the purposes of M tranda by allow- ing repeated rounds of questioning to undermine the will of the person being questioned.” Michigan v. Mosley, 423 U.S. 96, 102 (1975). The purposes of the Fifth Amendment, Miranda, and Edwards were clearly offended by the present case: A request for counsel was ignored, four rounds of custodial questioning took place, the Respondent was held in jail for three days without any contact with counsel and then questioned a fifth time. The trial court and the Court of Appeals properly held that Mr. Roberson’s statements made during this fifth interrogation could not be used in the prosecution’s case-in-chief. Likewise, this Court should so hold. 12 Il. SINCE THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION HAS AS ITS FOCUS THE STATE OF MIND OF THE SUSPECT, WHETHER THE POLICE OFFICERS WHO INITI- ATED THE REINTERROGATION OF THE SUSPECT KNEW OR DID NOT KNOW OF THE SUSPECT’S PRIOR INVOCATION OF HIS FIFTH AMENDMENT RIGHT TO COUNSEL, AND WHETHER THE REIN- TERROGATION FOCUSED ON “CRIME ONE” OR “CRIME TWO” ARE IRRELEVANT IN DETERMIN- ING WHETHER THE SUSPECT’S FIFTH AMEND- MENT RIGHTS UNDER MiRANDA AND EDWARDS WERE VIOLATED. With a proper understanding of the goals of the Fifth Amendment privilege against self-incrimination as set forth in Miranda v. Arizona, and Edwards v. Arizona, it becomes evident that in analyzing the privilege and the question of voluntariness of a waiver of the privilege, the courts should focus solely upon the mental state of the suspect and his sense of compulsion. This focus is to assure that any statements made by the suspect are vol- untary. To that end, “the state of mind of the police is irrelevant to the question of the intelligence and volun- tariness of respondent’s election to abandon his rights.” Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135 (1986). Similarly, once an in-custody suspect has invoked his right to counsel, the subject matter of a police-initiated reinterrogation is irrelevant in determining whether the suspect’s rights were violated. When the suspect has requested counsel before answering any questions, the suspect becomes “off-limits” to the police and the police may not re-approach him for questioning on any subject until he has been provided counsel or until he himself initiates communication or conversation. This rule is clearly stated in Edwards: 13 [A]lthough we have held that after initially being advised of his Miranda rights, the accused may him- self validly waive his rights and respond to interroga- tion, ... the Court has strongly indicated that additional safeguards are necessary when the accused asks for counsel; and we now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showin only that he responded to further police-initiate custodial interrogation even if he has been advised of his rights. 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 interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with police. (Citations and footnote omitted). 451 U.S. at 484-85. Mr. Roberson was arrested in Crime One, requested counsel before answering any questions, was asked ques- tions about Crime One four times, and then was ques- tioned a fifth time about Crime Two. When he was asked about Crime Two, an officer who previously questioned him regarding Crime One was present and did part of the questioning. Nothing in these facts indicate Mr. Roberson acted voluntarily. The State confuses the simple issue presented in this case by wrongly relying on various prior cases which distinguish between investigations. The Petitioner's reliance on the “separateness” of the investigation which lead to the subject confession is mis- placed. The Petitioner uses a passage from Westover v. U.S., acompanion case of Miranda, in support of its case. It does so by ignoring the clear facts before this Court. Westover states: 14 A different case would be presented if an accused were taken into custody by the second authority, removed both in time and place from his origi surroundings and then adequately advised of his rights and given an opportunity to exercise them. The Court goes on to say: But here the FBI interrogation was conducted imme- diately following the State interrogation in the same — station - in the same compelling surroundings. us, in obtaining a confession from Westover, the Federal authorities were the beneficiaries of the pres- sure applied by the local in-custody interrogation. In these circumstances, the giving of warnings alone was not sufficient to protect the privileged. (Empha- sis added). 384 U.S. at 496-97. The State actually argues that the fact that Mr. Rober- son was removed in time and place from his original sur- roundings are facts in favor of the State’s argument. This is ridiculous. He was removed from the scene of the arrest, taken and booked into custody in a jail and never given an attorney. As set forth in Petitioner's Statement of Facts, he was questioned five different times after orig- inally asking to speak only through an attorney. He was clearly not given an opportunity to exercise his right to remain silent and to speak only through counsel. The Petitioner argues that the facts in the present case are almost identical to those in the hypothetical set forth above in Westover. However, the facts of the Roberson case are much more like the actual facts of Westover. Roberson was in the “same compelling surroundings” at the time of his confession, namely, under arrest and in custody of the State. Also, the detectives in this case, in obtaining a confession from Roberson, “were the benefici- 15 aries of the pressure applied by the in-custody interroga- tion” of others. Next, the State argues that Michigan v. Mosley, 423 U.S. 96 (1975), should control the outcome of the present ease. The State fails to recognize clear distinctions between this case and the facts of Michigan v. Mosley. The most obvious distinction is that the defendant in Mosley merely requested to remain silent, rather than requesting counsel. Michigan v. Mosley itself, as set forth in direct quotes above, distinguishes between the need to keep lines of communication open when an accused has chosen only to be silent, and the lack of such need when the accused has decided to deal with the authorities only with legal advice. Since Mr. Roberson decided to deal with the authorities only through an attorney, Mosley does not control this case and subsequent statements made without removal of the coercive atmosphere and without honoring his request for counsel must be consid- ered involuntary. Next, the State misapplies Oregon v. Elstad to the case at hand. Oregon v. Elstad’s key holding is: It is an unwarranted extension of Miranda to hold that a simple failure to administer the warning unac- companied by any actual coercion or other circum- stances calculated to undermine the suspect’s ability to exercise his free-will, so taints the as process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. The difference between Elstad and the present case is as follows: Elstad’s first confession was without Miranda warnings, thus his subsequent waiver of his rights was not prefaced by a prior request for counsel. Roberson requested counsel first and thus, the reinterrogation indi- cated to him that he did not have the choice of consulting 16 an attorney, since he had requested one and his request was ignored. The error of the State’s argument is further docu- mented by this statement found on page 28 of its brief: The circumstances here (passage of time, change of place, change of interrogators) include all the factors which would serve to dissipate the coercive effect of even an involuntary initial statement, as well as the proper administration of Miranda warnings by Det. Cota-Robles which by itself would cure an uncoerced and voluntary initial statement. To the contrary, the passage of time and the repeated interrogations 2 officers only aggravated the coercive effect. ile Mr. Roberson was waiting for the lawyer he had requested in order to talk to the police, he continued in custody without counsel and the repeated questioning by police did not dissipate the coercive nature of the situation but clearly added to it. The actions of the police, and the fact Mr. Roberson was kept in custody without an attorney implied to him a clear message: Our statement about your right go an attorney is a lie. That being the message, the confession was involuntary. Petitioner argues that Connecticut v. Barrett, __. U.S. —__., 107 S.Ct. 828 (1987), mitigates in its favor. The defendant in Barrett clearly indicated the desire to talk voluntarily without counsel. The restriction he invoked was that he would not put anything in writing without counsel and the State complied with that restriction. The Supreme Court held that there was no reason to interpret his request for an attorney more broadly than the clear — language of the request indicated. The court stated: To conclude that respondent invoked his right to counsel for all purposes requires not a broad inter- pretation of an ambiguous statement, but a disregard of the ordinary meaning of respondent's statement. 17 107 S.Ct. at 832. In the present case, Petitioner argues that Mr. Rober- son invoked his Fifth Amendment rights for the limited purpose of discussing “Crime One” and not for “Crime Two.” However, a reading of the record indicates quite the contrary. When the police arrested Mr. Roberson and advised him of his Miranda rights, “subject replied that he understood his rights, and that he wanted a lawyer before answering any questions.” (R.T. of April 3, 1986 at p. 26). (Emphasis added). An interpretation of this request according to its ordinary meaning indicated that Mr. Roberson fully invoked his right to counsel for all purposes and all subjects of interrogation. Indeed, this Court has required that “a broad, rather than a narrow, interpretation to a defendant’s request for counsel” be given, Michigan v. Jackson, __ U.S. —_, 106 S.Ct. 1404, 1409 (1986). The Seventh Circuit, in inter- preting Connecticut v. Barrett, stated “ . . a court must presume that an individual has invoked the full extent of his or her constitutional right to counsel.” United States ex rel. Espinoza v. Fairman, 813 F.2d 117, 123 (7th Cir. 1987). In addition to Mosley, Elstad and Barrett, Petitioner cites some Sixth Amendment cases: Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404 (1986); Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477 (1985); and, Moran v. Bur- bine, 475 U.S. 412, 106 S.Ct. 1135 (1986). The Fifth Amendment and the Sixth Amendment encompasses two very distinct rights. It is true that Fifth Amendment analysis has been, and continues to be, applied to Sixth Amendment cases, but no case suggests that Fifth Amendment rights should be restricted because of Sixth Amendment analysis. This is a Fifth Amendment case 18 and it should not be restricted by a Sixth Amendment analysis. » Petitioner further confuses the issues by attempting to apply the independent source doctrine to this case. The Petitioner argues that the State is placed in a worse position that it would have been had it not violated Mr. Roberson’s rights. This presumes Mr. Roberson would have acted differently if his first Miranda warning occurred after he was placed in jail. There is no evidence to support this. Mr. Roberson, we must presume, would have requested counsel then. It is only after his request went unheeded that he spoke, giving up a right that to Mr. Roberson seemed worthless by then. Had Mr. Roberson been supplied with an attorney before any further inter- rogation, he and his attorney would have decided to pro- ceed with his defense and in all likelihood he would not have made subsequent admissions. The source of Mr. Roberson’s statements was not independent but rather caused by continual police custodial interrogation after assuring Mr. Roberson he had the right to counsel. Il. THIS COURT SHOULD RETAIN EDWARDS V. ARI- ZONA AND ITS PER SE RULE AGAINST POLICE- INITIATED REINTERROGATION OF AN IN- CUSTODY SUSPECT AFTER HE HAS INVOKED HIS FIFTH AMENDMENT RIGHT TO COUNSEL. As noted above, this Court adopted the Edwards per se rule against police-initiated interrogation as a means of providing an in-custody suspect a full opportunity to exer- cise his privilege against self-incrimination. The Court recently explained that the purpose behind Miranda v. Arizona and Edwards v. Arizona is “preventing govern- ment officials from using the coercive nature of con- finement to extract confessions that would not be given in an unrestrained environment.” Arizona v. Mauro, —— 19 U.S. ——, 107 S.Ct. 1931, 1936-37 (1987). There is a supreme interest in ensuring that the Constitution is upheld, that due process is given to all persons subject to the court system and to ensure an effective adversary process. Miranda and Edwards have done well in ensur- ing the promotion of these interests. Taking awa, Edwards would be taking a major step backward in ‘he Pa fair, efficient and consistent application of criminal pro-/ cedure laws grounded in the constitution. Furthermore ’ to not apply Edwards to the present case would be to stm the suspect’s request for counsel of any meaning and to give little accord to his Fifth Amendment privilege against self-incrimination. There is a great interest in preventing a recurring pattern of the police behavior which occurred in the pres- ent case. A suspect’s invocation of his right to speak with counsel before answering questions would have no mean- ing whatsoever if the police were allowed to repeatedly question the suspect before honoring his request for coun- sel. Repeated custodial interrogations after a request for counsel gives the suspect the impression that his request has no practical meaning and that he has no choice but to answer, regardless of the subject reinterrogation or the mental state of the interrogator. The Edwards per se rule is easy to understand and likewise easy to apply. It is no imposition on the police to refrain from questioning the suspect until he has been provided with counsel, once he makes the request. It is totally unacceptable for the police to hold a suspect for three days and to engage in reinterrogation before honor- ing his request. Such a situation easily can be interpreted as a deliberate attempt to break a suspects’ will and a means of extracting a confession that otherwise would not be given. 20 In short, there was a powerful reason to adopt the per se rule in Edwards and there continues to be a powerful reason to retain that per se rule. IV. RESPONSE TO SOLICITOR GENERAL’S ARGU- MENT. If one carefully examines the facts of this case, most of the argument of the Solicitor General does not even apply. He presumes a simple case where a defendant is arrested on State Charge One, and then is later interviewed in jail by a different agency with no contact whatsoever with the earlier agency in Federal Charge Two. This case is not so simple. In the present case, Mr. Roberson was questioned four times on Crime One and then questioned on Crime Two. The questioning in Crime Two involved one new officer not present previously and another officer who had previously violated Mr. Roberson’s right in questioning him on Crime One. Thus, whether or not the Court decides to continue the bnght line rule of Edwards from a policy point of view, the present case clearly involved badgering by the police and clearly involved facts such that the trial court’s finding that the confession was invol- untary should be upheld. The Solicitor General’s brief, like .4e State’s brief, makes the error of focusing primarily on the actions of the police rather than on the state of mind of Mr. Roberson. In general, when a defendant is being investigated, he is not informed of the subject of the investigation or whether the investigation is in any way related to prior questioning. The main fact that he is aware of is that he is in jail and persons are asking him questions about crimes. A defend- ant is not aware, nor should he be required to be aware, of the intent of the investigator. 21 By eliminating the bright line rule of Edwards as the Solicitor General suggests, the courts would then have to inquire into the content of the conversations between the defendant and all of the investigators. The Court would have to inquire whether officers knew of prior invocations by the suspect, and officer credibility would be ques- tioned. There is also great potential for abuse. The law, as requested by the Solicitor General, would put a premium on ignorance. Indeed, if the approach argued for by the Solicitor General is taken, it is imaginable that law enforcement agencies would adopt a policy of not inquir- ing into whether a defendant has requested counsel before approaching that defendant for questioning in a situation where he is in custody on another charge. To take the argument to its most absurd result, a person who is wanted on various multi-state and multi-agency crimes could be questioned ten times in a single setting, so long as the questions were regarding separate investigations by separate officers. In effect, all the abuses which were prevented by Edwards wouid be allowed so long as defendant happened to be the subject of several different investigations. The Solicitor General argues that “while law enforce- ment officials involved in a single investigation can reason- ably be required to be aware that the suspect has requested counsel and to treat him accordingly, it is far more burdensome to require every investigator to deter- mine whether any suspect he questions in custody has previously requested counsel in connection with any unre- lated investigation.” This statement lacks common sense. Any investigator would have to determine that the sus- pect was in jail and being held on a certain charge. It would be very easy to review the arrest information to determine whether or not the suspect has requested 22 counsel. Indeed, if there were ever a time that it would be difficult to determine whether a suspect had requested counsel, it would be during the booking process of a single incident arrest. This case is on point. Mr. Roberson was questioned by several officers after he had requested counsel in response to the Miranda warnings of the first officer who spoke to him. All four of the officers who clearly violated Mr. Roberson’s Fifth Amendment rights were involved in the first investigation and ignorant of his invocation. This is a burden law enforcement officials have been required to live with for some time, and it has not caused any major problems. To require the same of inves- tigators from different agencies at a time when the defendant has already been booked into custody would not be an additional burden. The Solicitor General aiso argues about the extreme value of the interrogation process. This Court is referred to the language cited earlier in this brief about the history of the Fifth Amendment. Important to that history is the policy that interrogation is not to be relied on as the primary tool of law enforcement agencies. The Solicitor General argues that the defendant may have a different motivation in the second investigation to speak. Again, this argument presumes that the suspect will have been clearly informed of the two different inves- tigations that are occurring. This was clearly not the case nor would it be generally. As soon as a suspect is arrested anu charged with a crime, requests to remain silent and requests counsel, he will not gain any more information on any investigation except through counsel. In the event the defendant needs information, his attorney provides it. The Solicitor General requests that this Court distinguish between separate interrogation relating to separate crimes and a truly “independent investigation.” The Solic- 23 itor General does not give this Court any suggestion as to how to define “independent investigation.” Any definition would have to focus on the mind of the defendant, and that being so, no definition would work. Especially applied to this case where an investigator from Crime One was present during the questioning on Crime Two, there clearly could be no finding that these cases were totally independent of each other. Finally, while the Solicitor General and the various other briefs filed in this matter all argue that there would be less chance of an involuntary wa ver when the inter- rogations were related to separate i vestigations and/or separate crimes, no brief explains wt y. The Solicitor Gen- eral’s argument should not be accepted by this Court as it would trade a bright line rule for a very complicated analysis of whether an investigation was adequately inde- pendent. It would switch focus from the state of mind of the defendant to the actions of agencies in determining whether somebody made a confession voluntarily. This would be inappropriate since the Fifth Amendment has as its main purpose an individual's right to remain silent. Even if the Solicitor General’s arguments are agreed to in the abstract, that clearly cannot apply to this case where there were not independent investigations. There were so many different violations of Mr. Roberson’s rights that there was unquestionable badgering by the police, and Mr. Roberson, because of all the facts of the case, did not make a voluntary confession. CONCLUSION This case is a simple one to decide when the confused analysis of the Petitioner is set aside. Miranda and Edwards hold that a defendant’s right to silence under the Fifth Amendment also entails the right to have an 24 attorney present before speaking while in custodial inter- rogation. The bright line rules of M iranda and Edwards require a finding that where a defendant remains in custody after requesting counsel, any subsequent inter- rogation would be unduly coercive and, therefore, state- ments made in su!)sequent interrogations must be suppressed. The subject matter of those interrogations and the mental state of the police is irrelevant under Fifth Amendment analysis since it is the voluntariness of the statements that is the issue. In the present case, Mr. Roberson clearly decided to speak to counsel before mak- ing statements to the officers and indicated as much to the police. He was then confined for several days and reinter- rogated without speaking to a lawyer. The statements made during the subsequent interrogation were properly suppressed. The trial court and the Court of Appeals correctly held that the statements should be excluded from the State’s ease-in-chief. This Court should affirm the lower courts decisions. Raspectfully submitted, ROBERT L. BARRASSO (Appointed by this Court) 3100 N. Campbell Avenue, #101 Tucson, Arizona 85719 (602) 795-2002 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0708%3A05. Public record. Not legal advice.