Amicus Curiae Brief — Maryland v. Blake

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No. 04-373

In the Supreme Court of the United States

STATE OF MARYLAND, PETITIONER

LEEANDER JEROME BLAKI

ON WRITOFR CERTIORARI

POTHE COURT OR APPEALS OF MARYLAND

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

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QUESTION PRESENTED

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

after a suspect has invoked his right to have counsel present

during custodial interrogation and a police officer engages in

improper communications with the suspect, curative meas-

ures and intervening circumstances may enable the suspect

validly to reinitiate dialogue about the investigation and

agree to waive his rights.

(I)

TABLE OF CONTENTS

Page

Interest of the United States , 1

Statement ; 1

Summary of argument 7

Argument: 10

Curative police measures neutralized the effect

of one officer’s improper communications with

respondent after his invocation of the right to

have counsel present at questioning 10

A. Edwards v. Arizona creates a prophylactic

rule to protect against police badgering of a

suspect who has asserted his rights . 10

B. Curative measures can dissipate the effects of

improper questioning after a suspect asserts

the right to counsel 12

1. Courts have recognized that intervening

circumstances can minimize the risk that

Edwards was designed to address 13

2. Curative measures can neutralize the poten-

tial harms of improper questioning follow-

ing an invocation of the right to counsel 15

3. This Court’s decisions support the conclu-

sion that curative measures can vitiate

the Edwards presumption of coercion ... 17

4. — eed a Pers

Amendment cases is not warranted in the

Edwards context 20

C. A rule that improper police comments cannot

be cured absent a break in custody or a lapse

in time would impose unjustified costs on the

criminal justice system 24

(III)

IV

Table of Contents—Continued: Page

D. Detective Johns’s statements dissipated the

effects of post-invocation questioning 26

Conclusion 30

TABLE OF AUTHORITIES

Cases:

Arizona v. Fulminante, 499 U.S. 279 (1991) . 17

Arizona v. Roberson, 486 U.S. 675 (1988) .......... 11, 12, 15, 16

Berkemer v. McCarty, 468 U.S. 420 (1984) 25

Brown v. Illinois, 422 U.S. 590 (1975) 20, 21, 22

Butzin v. Wood, 886 F.2d 1016 (th Cir. 1989),

cert. denied, 496 U.S. 909 (1990) 14

Chavez v. Martinez, 538 U.S. 760 (2003) . . 22

Colorado v. Connelly, 479 U.S. 157 (1986) * 17

Connecticut v. Barrett, 479 U.S. 523 (1987) 12

Davis v. United States, 512 U.S. 452 (1994) .. 10

Dickerson v. United States, 530 U.S. 428 (2000) 10, 25

Dunkins v. Thigpen, 854 F.2d 394 (11th Cir.

1988), cert. denied, 489 U.S. 1059 (1989) 14, 15

Edwards v. Arizona, 451 U.S. 477 (1981) 1, 4, 7,

10, 11, 17, 24, 28

Harris v. New York, 401 U.S. 222 (1971) 25

Hill v. Brigand, 199 F.3d 838 (6th Cir. 1999),

cert. denied, 529 U.S. 1134 (2000) 14

Holman v. Kemna, 212 F.3d 413 (8th Cir.), cert.

denied, 531 U.S. 1021 (2000) 15

Lyons v. Oklahoma, 322 U.S. 596 (1944) 17

McFadden v. Garraghty, 820 F.2d 654 (4th Cir.

1987) 14

McNeil v. Wisconsin, 501 U.S. 171 (1991)... 10, 13. 23. 24, 30

Michigan v. Harvey, 494 U.S. 344 (1990) 11

Michigan v. Mosley, 423 US. 96 (1975) 24

Michigan v. Tucker, 417 U.S. 433 (1974) 23

Minnick v. Mississippi, 498 U.S. 146 (1990) ................. 11,15

V

Cases—Continued: Page

Miranda v. Arizona, 384 U.S. 436 (1966) 2. 7,

10, 11. 12

Missouri v. Siebert, 124 S. Ct. 2601 (2004). passim

Moran v. Burbine, 475 U.S. 412 (1986) 23

New York v. Quarles, 467 U.S. 649 (1984) 10, 24

Nix v. Williams, 467 U.S. 431 (1984) 26

Oregon v. Bradshaw, 462 U.S. 1039 (1983) ......... 7, 11, 13. 17

Oregon v. Elstad, 470 U.S. 298 (1985) passim

Oregon v. Hass, 420 U.S. 714 (1975) 25, 26

Patterson v. Illinois, 487 U.S. 285 (1988) 11

Rhode Island v. Innis, 446 U.S. 291 (1980) 27

Smith v. Illinois, 469 U.S. 91 (1984) 13

Taylor v. Alabama, 457 U.S. 687 (1982) 21

Texas v. Cobb, 532 U.S. 162 (2001) 23

Tukes v. Dugger, 911 F.2d 508 (11th Cir. 1990),

cert. denied, 502 U.S. 898 (1991) 28

United States v. Barlow, 41 F.3d 935 (5th Cir.

1994), cert. denied, 514 U.S. 1030 (1995) 14, 15

United States v. Bautista, 145 F.3d 1140 (10th

Cir.), cert. denied, 525 U.S. 911 (1998) 14, 28

United States v. Bayer, 331 U.S. 532 (1947) . 24

United States v. Ceccolini, 435 U.S. 268 (1978 24

United States ex rel. Espinoza v. Fairman, 813

F. 2d 117 (7th Cir.), cert. denied, 483 U.S. 1010

(1987), overruled on other grounds by United States

v. LaGrone, 43 F 3d 332 (7th Cir. 1994) 14

United States v. Gomez, 927 F.2d 1530 (11th Cir.

1991) 7, 12,14

United States v. Harris, 221 F.3d 1048 (8th Cir.

2000) 14

United States v. Patane, 124 S. Ct. 2620 (2004) 24

United States v. Skinner, 667 F.2d 1306 (9th Cir.

1982), cert. denied, 463 U.S. 1229 (1983) 14

VI

Cases—Continued:

United States v. Verdugo-Urquidez, 494 U.S. 259

Constitution, statutes and rules:

U.S. Const.:

ae 20, 21, 22, 25

2.9. 7, 10, 17, 21, 22

Md. Code Ann., Crim. Law § 2-202(b)2)i)

—6—ᷓ

Fed. R. Crim. P.:

Rule 4. advisory committee notes to 2002

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———nͥ— — _ - *

̃—— — — —ę—

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In the Supreme Court of the United States

No. 04-373

STATE OF MARYLAND, PETITIONER

.

LEEANDER JEROME BLAKE

ON WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF MARYLAND

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

This case presents the question whether Edwards v. Ari-

zona, 451 U.S. 477 (1981), permits courts to consider whether

curative measures and intervening circumstances can neu-

tralize the effect of a police officer’s improper communica-

tions with a suspect after the suspect’s invocation of the

right to have counsel present at questioning. Because of its

role in the investigation and prosecution of federal crimes,

the United States has a substantial interest in that issue. In

particular, the government has an interest in an interpreta-

tion of Edwards that allows consideration of curative meas-

ures, such that a suspect who has once invoked his right to

counsel may validly re-initiate communication with law-

enforcement agents, and make statements that can be admit-

ted into evidence, even if agents previously made comments

that are construed as improper interrogation.

‘STATEMENT

1. On September 19, 2002, Straughan Lee Griffin, a resi-

dent of Annapolis, Maryland, was shot and killed in front of

his house. Pet. App. 3a. On October 25, 2002, Terrence Tol-

bert, who had been arrested in connection with Griffin’s

(1)

2

murder, implicated respondent in the crime. That day, police

obtained an arrest warrant for respondent and a warrant to

search his house. Before executing the warrants, Sergeant

Gregory Kirchner instructed the officers not to speak to re-

spondent. J.A. 238. Between 4:30 and 5:00 a.m. the next

morning, Anne Arundel County police arrested respondent

at his home, handcuffed him, and transported him to the An-

napolis Police Department. At the time, respondent was

wearing only a tank top and boxer shorts with no shoes. Pet.

App. 4a.

In the “intake” or “booking” room of the station house,

Detective William Johns, the lead detective investigating the

Griffin murder, advised petitioner of his rights under

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

his right to counsel, stating that he did not wish to speak

with the police officers without an attorney. After respon-

dent signed an advice-of-rights form, the police placed him in

a holding cell. Pet. App. 4a.

About 35 minutes later, at 6 a.m., Detective Johns, accom-

panied by Officer Curtis Reese, went to respondent’s cell

and handed him a copy of the arrest warrant and statement

of charges, as they were required to do under Maryland law.

See Md. R. 4-212(e) (providing that “the officer shall inform

the defendant of the nature of the offense charged” and a

copy of the warrant and charging document shall be served

on the defendant”). Detective Johns explained the charges

to respondent, told him that they were serious charges, and

said that respondent should read the document carefully and

make sure he understood it. Pet. App. 4a-5a.

The statement of charges that Detective Johns handed to

respondent consisted of a District Court of Maryland com-

puter printout. The document indicated that petitioner was

charged with first-degree murder, second-degree murder,

armed robbery, armed carjacking, and using a handgun in a

crime of violence. The computer-generated document listed

the generally applicable maximum penalties for each offense.

3

Pet. App. 39a, 49a. The document stated that the maximum

penalty for first degree murder is “DEATH.” While that

was a correct statement of the statutory maximum penalty

for that offense, respondent was not eligible for the death

penalty under Maryland law because he was under the age of

18 at the time of the offense. Pet. App. 5a. See generally

Md. Code Ann., Crim. Law § 2-202(b)(2)(i) (Michie 2002).

After Detective Johns handed the charging document to

respondent and turned to leave, Officer Reese stated to re-

spondent, in a tone that Detective Johns later characterized

as loud and confrontational, “I bet you want to talk now,

huh!” Detective Johns was surprised by the statement, and

he “pushed/escorted” Officer Reese out of the cell, stating

very loudly within respondent’s hearing, “No, he doesn’t

want to talk to us. He already asked for a lawyer. We can-

not talk to him now.” Pet. App. 6a, 7la. Detective Johns

testified that he made the statement because he was con-

cerned that “Officer Reese’s outburst would violate {respon-

dent's] request for counsel prior to being questioned.” Re-

spondent said nothing at the time. Id. at 5a-6a.

Petitioner remained in his cell, wearing the clothes he had

on at the time of his arrest. Approximately 30 minutes after

the earlier encounter, Detective Johns returned to the cell to

give respondent clothing that had been brought from re-

spondent’s home. After Detective Johns handed respondent

his clothing, respondent asked, “I can still talk to you?” De-

tective Johns responded, “Are you saying that you want to

talk to me now?” Petitioner answered, “Yes.” Detective

Johns left the cell area and returned after a few minutes. He

then brought respondent to the intake room and re-admi-

nistered Miranda warnings. Respondent waived his rights

and made incriminating statements to Detective Johns con-

cerning his involvement in the Griffin murder. In response

to a request from Detective Johns, respondent agreed to

take a polygraph examination. Officers transported respon-

dent to a State Police barracks in Annapolis, where he was

1

again advised of his Miranda rights. Following the poly-

graph, respondent made additional statements. Pet. App.

Ga-Ta.

2. A state grand jury indicted respondent for first-de-

gree murder, second-degree murder, and manslaughter. Be-

fore trial, respondent moved to suppress his statements, ar-

guing that Officer Reese’s comment to him violated the rule

of Edwards v. Arizona, 451 U.S. 477 (1981), which holds that

statements obtained by police during custodial interrogation

are not admissible once a suspect has invoked his right to

counsel, unless the suspect initiates communication with po-

lice. After an evidentiary hearing, the trial court granted

respondent’s motion. Pet. App. 59a-85a.

The court ruled that Officer Reese’s statement to respon-

dent constituted interrogation for purposes of the Edwards

rule (Pet. App. 72a, 76a), finding that the statement was

“made specifically for the purpose of getting [respondent] to

talk,” id. at 75a. The court observed, however, that Detec-

tive Johns's act of handing respondent the charging docu-

ment does not amount to interrogation and is part of a law-

ful booking process.” /d. at 76a. In addition, the court found

that the boilerplate recitation of maximum penalties in the

charging document, which incorrectly suggested that re-

spondent was eligible for the death penalty, had been “done

by mistake,” not intentionally. /d. at 72a.

The court concluded that respondent’s later request to

speak to Johns was “in direct response to Reese’s previous

statement.” Pet. App. 75a. The court viewed respondent’s

agreement to take a polygraph exam as part of “one continu-

ous course of conduct beginning with Officer Reese’s state-

ment” (id. at 82a), adding that It here was no lengthy period

of time * * * to break the chain of events and to prove at-

tenuation.” IH. Although the court acknowledged that re-

spondent had testified that he was motivated to speak after

e had read the charging papers and learned that Tolbert

had blamed the murder on him and “he wanted the police to

5

know the truth,” id. at Sla the court said that “{t]he State

has not met its heavy burden of proving a voluntary, know-

ing and intelligent waiver or showing that [respondent] was

not still suffering under the impact of Reese’s unlawful

course of interrogation.” Ibid. The court rejected the

State’s argument that the immediate curative action taken

by Detective Johns negated any intent to elicit statements

from respondent. /d. at 73a-74a.

3. A divided panel of the Court of Special Appeals of

Maryland reversed, concluding that Officer Reese’s state-

ment to respondent did not qualify as interrogation for pur-

poses of the Edwards rule. Pet. App. 30a-58a. The majoritv

concluded that Officer Reese’s “blurt{ed]” statement was

“rhetorical in nature,” id. at 52a, and that it did not suggest

“that [respondent] was * * * expected to respond, and he

did not respond.” Jbid. The majority emphasized that re-

spondent “was not ‘badgered’ or subjected to ‘compelling

influences’ or ‘psychological ploys.“ /bid. The dissenting

judge concluded that “Officer Reese should have known that

his statement * * * was reasonably likely to elicit an in-

criminating response.” Id. at 58a.

4. The Court of Appeals of Maryland granted respon-

dent’s petition for a writ of certiorari, reversed the judgment

of the intermediate appellate court, and reinstated the sup-

pression order. Pet. App. la-29a.

The court first held that Officer Reese’s statement

amounted to “the functional equivalent of interrogation.”

Pet. App. 20a. The court acknowledged that the act of

merely serving the charging document, with its inaccurate

suggestion that respondent was subject to the death penalty,

did not constitute interrogation. Id. at 22a. But in light of

the almost simultaneous service of the document, “any rea-

sonable officer had to know that [Officer Reese’s] comment

was reasonably likely to elicit an incriminating response.”

Id. at 21a.

6

The court rejected the State’s argument that, even if Offi-

cer Reese's statement constituted interrogation, Edwards

did not bar admission of his statements because it was re-

spondent who reinitiated communication by asking to speak

with Detective Johns. The court stated that, although re-

spondent’s request to speak may have constituted “initia-

tion” in the “‘dictionary sense’ of the word,” there was no

initiation by respondent “as that term is contemplated in the

legal sense.” Pet. App. 26a. In reaching that conclusion, the

court considered the following factors:

Petitioner had requested counsel; he had been given a

document that told him he was subject to the death pen-

alty. when legally he was not; he was seventeen years of

age; he had not consulted with counsel; he was in a cold

holding cell with little clothing; an officer had suggested

in a confrontational tone that petitioner might want to

talk; and the misstatement as to the potential penalty as

one of “DEATH” had never been corrected.

Ibid.

The court also rejected the State’s argument that Detec-

tive Johns neutralized the effect of Officer Reese’s comment

by saying that police could not talk to respondent in light of

his invocation of the right to counsel, stating only that the

trial court’s conclusion that Johns’s comment did not negate

the violation was “not clearly erroneous.” Pet. App. 27a.

The court emphasized that “(t]he delay of twenty-eight min-

utes” between Officer Reese's comment and respondent's

inquiry about speaking with police was “insufficient to con-

stitute a waiver of his right to have counsel present.” Ibid.

The court suggested that, “once the police violate Edwards,

it does not make sense to say that an accused can thereafter

‘initiate’ conversation with the police unless a substantial

amount of time has elapsed such that ‘the coercive effect of

de interrogation has subsided.’” Id. at 28a (quoting United

L

States v. Gomez, 927 F.2d 1530, 1539 n.8 (11th Cir. 1991)).

7

The court stated that, “[aJlthough the accused technically

may begin a conversation with the police, if this occurs after

the police have interrogated the accused in violation of Ed-

wards, the voluntariness of such ‘initiation’ is suspect and

statements subsequently obtained are inadmissible.” /bid.

(citing Gomez, 927 F.2d at 1539).

SUMMARY OF ARGUMENT

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

adopted, as a prophylactic measure to protect Fifth Amend-

ment rights, the rule that in order for a suspect to give an

admissible statement during custodial interrogation, he must

generally first be advised of specified rights and voluntarily

agree to waive them. In Edwards v. Arizona, 451 U.S. 477

(1981), this Court built on its Miranda jurisprudence by

holding that, when a suspect has been advised of his right to

have counsel present during custodial interrogation and in-

vokes that right, statements made in response to further po-

lice questioning of an uncounseled suspect must be excluded,

even if the defendant has received fresh Miranda warnings

and voluntarily waived his rights. Edwards establishes an

“anti-badgering” rule on the premise that, once a defendant

has evinced an unwillingness to deal with custodial interro-

gation without counsel’s assistance, further police efforts to

induce him to waive his rights pose an undue risk that a de-

cision to speak without counsel will not be a product of free

choice. The Edwards rule, however, does not prelude a sus-

pect from himself choosing to re-initiate dialogue with the

authorities and then validly waiving his rights. To the con-

trary, Edwards respects the principle that an informed de-

fendant has free choice to elect to reopen communications

with the police without counsel. Id. at 485; Oregon v. Brad-

shaw, 462 U.S. 1039, 1044 (1983) (plurality opinion).

The Court of Appeals of Maryland held below that, once a

police officer improperly questions a suspect who has as-

serted his Miranda right to counsel, any later effort by the

8

suspect to re-establish communications with the police and

waive his rights must be deemed invalid unless there has

been a break in custcdy or a substantial lapse of time. The

court of appeals erred in adding a new presumption to Ed-

wards that frustrates a suspect’s voluntary desire to com-

municate with the authorities. In a case where intervening

circumstances or curative measures have neutralized the

impact of improper questioning, there should be no per se

rule that a break in custody or a substantial lapse of time

must occur before a suspect may validly reinitiate communi-

cations with police.

Edwards's concern is that a defendant who expresses the

desire to deal with the police through counsel may be unable

to resist further entreaties to talk. After improper ques-

tioning, such a defendant might find fresh Miranda warnings

alone insufficient reassurance, because the police have al-

ready failed to respect his assertion of the right to have

counsel present. But when one officer asks an improper

question and another officer promptly applies an effective

curative measure—such as reiterating that respondent’s in-

vocation of the right to counsel means that he cannot be

questioned—there is no reason to reject a suspect’s later ini-

tiation of communications with the police on the basis of a

conclusive presumption of involuntariness.

Allowing curative measures to restore a suspect’s ability

to reinitiate communications would not invite abuses by the

authorities. Curative measures could not retroactively ren-

der admissible any earlier, improperly elicited statements.

Nor would curative measures alter the government’s burden

to show a re-initiation of communications and a voluntary

and intelligent waiver of rights. And there is no significant

danger that recognizing curative measures would encourage

intentional strategies by the police to circumvent Edwards,

because officers could not control whether a suspect would

voluntarily choose to reopen dialogue with the police, and

the authorities would have much to lose if improper ques-

9

tioning were held to render all subsequent communications

with the suspect involuntary. Recognizing the ability of in-

tervening circumstances or curative measures to neutralize

improper questioning would render the law under Edwards

consistent with this Court’s approach to parallel issues under

Miranda itself. See Oregon v. Elstad, 470 U.S. 298 (1985);

Missouri v. Seibert, 124 S. Ct. 2601 (2004).

Under a proper analysis, and freed from the court of ap-

peals’ conclusive presumption that a break in custody or a

substantial lapse in time is necessary to dissipate the effects

of improper questioning, the facts of this case illustrate that

adequate curative measures can effectively enable a defen-

dant to exercise free choice in reinitiating dialogue with the

authorities. After Officer Reese made a single statement to

respondent that the court of appeals construed as interroga-

tion, Detective Johns—the lead investigator—immediately

silenced Reese, ushered him from respondent’s cell, and

loudly reaffirmed that respondent did not want to speak to

the police, that he had asked for counsel, and that “[w]e can-

not talk to him now.” Pet. App. 6a. That information noti-

fied respondent that he was not required to speak and reas-

sured him that the police would respect his assertion of the

right to counsel. Twenty-eight minutes later—without any

police prompting, and without having provided any informa-

tion to the police—respondent, having read the charges

against him, asked whether he could still talk to the police.

Nothing in Edwards precludes giving effect to respondent’s

choice at that time. A suspect’s voluntary decision to reopen

dialogue and his subsequent voluntary waiver of rights

should be respected, without applying any further prophy-

lactic presumptions that would frustrate his free will and

discredit the voluntary nature of his statements.

10

ARGUMENT

CURATIVE POLICE MEASURES NEUTRALIZED THE

EFFECT OF ONE OFFICER’S IMPROPER COMMU-

NICATIONS WITH RESPONDENT AFTER HIS INVO-

CATION OF THE RIGHT TO HAVE COUNSEL

PRESENT AT QUESTIONING

A. Edwards v. Arizona Creates A Prophylactic Rule

To Protect Against Police Badgering Of A Suspect

Who Has Asserted His Rights

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

held that statements made by a defendant in response to

custodial interrogation are not generally admissible against

him in the government's case in chief unless the defendant

voluntarily and knowingly agreed to speak after the admini-

stration of specified warnings. Specifically, the suspect must

“be warned that he has a right to remain silent, that any

statements he does make may be used as evidence against

him, and that he has a right to the presence of an attorney”

during custodial questioning. Id. at 444. The Miranda rule

is a “prophylactic” measure. See, e.g., New York v. Quarles,

467 U.S. 649, 653 (1984). The premise of Miranda is that

custodial interrogations contain] inherently compelling

pressures which work to undermine the individual's will to

resist and to compel him to speak where he would not oth:-

erwise do so freely.“ Miranda, 384 U.S. at 467. The rule is

designed to protect the Fifth Amendment privilege by re-

ducing the “risk of overlooking an involuntary custgdial con-

fession” under the “traditional totality- of- the- circumstances

test.” Dickerson v. United States, 530 U.S. 428, 442 (2000).

In Edwards v. Arizona, 451 U.S. 477 (1981), this Court

created a “second layer of prophylaxiis” for the Miranda

right to counsel. Davis v. United Sttates, 512 U.S. 452, 458

(1994) (quoting McNeil v. Wisconsin, 501 U.S. 171, 176

(1991)). Edwards addresses sitzuations in which a suspect re-

quests counsel after Mirandm@ warnings have been given. To

11

protect the assertion of that right, under Edwards, once a

defendant invokes his right to counsel, statements made dur-

ing government-initiated custodial interrogation of an un-

counseled suspect are barred from the government’s case in

chief, even if the defendant receives and voluntarily waives

his Miranda rights. 451 U.S. at 484, 487; see Minnick v.

Mississippi, 498 U.S. 146 (1990). As the Court has ex-

plained, the Edwards rule presumels]' that “if a suspect

believes that he is not capable of undergoing such question-

ing without advice of counsel, then * * * any subsequent

waiver that has come at the authorities’ behest, and not at

the suspect's own instigation, is itself the product of the in-

herently compelling pressures’ and not the purely voluntary

choice of the suspect.” Arizona v. Roberson, 486 U.S. 675,

681 (1988) (quoting Miranda, 384 U.S. at 467). Edwards

thus protects against police “badgering a defendant into

waiving his previously asserted Miranda rights.” Minnick,

498 U.S. at 150 (quoting Michigan v. Harvey, 494 U.S. 344,

350 (1990)).

Edwards itself makes clear, however, that no absolute

presumption of coercion is warranted following a suspect’s

invocation of his right to counsel, and further interrogation is

permissible, if “the accused himself initiates further commu-

nication, exchanges, or conversations with the police.” 451

U.S. at 485; accord Oregon v. Bradshaw, 462 U.S. 1039, 1043-

1044 (1983) (plurality opinion). Edwards thus allows a de-

fendant to make a voluntary decision to change his mind, af-

ter the assertion of the right to counsel, and to approach offi-

cers to discuss the investigation. That rule respects the

principle that is at the heart of Miranda and Edwards: the

right of a suspect who is informed of his rights to make a de-

cision for himself whether to “face the State’s officers during

questioning with the aid of counsel, or go it alone.” Patter-

son v. Illinois, 487 U.S. 285, 291 (1988) (“Preserving the in-

tegrity of an accused’s choice * * * is the essence of Ed-

wards.”),; Minnick, 498 U.S. at 153 (stating that the purpose

12

of the Edwards rule is to Aplreservle] the integrity of an

accused's choice to communicate with police only through

counsel”); Connecticut v. Barrett, 479 U.S. 523, 528 (1987)

(“The fundamental purpose of the Court's decision in M..

mu was ‘to assure that the individual's right to choose be-

tween speech and silence remains unfettered throughout the

interrogation process.“ (quoting Miranda, 384 U.S. at 469).

B. Curative Measures Can Dissipate The Effects Of

Improper Questioning After A Suspect Asserts

The Right To Counsel

The Court of Appeals of Maryland concluded that, if a po-

lice officer makes a comment that qualifies as interrogation

after the suspect has invoked his Miranda right to counsel, a

suspect cannot be deemed to have initiated any subsequent

communication unless there “was [a] break in custody or

adequate lapse in time sufficient to vitiate the coercive effect

of the impermissive [sic] interrogation.” Pet. App. 26a; see

also id. at 28a (accused cannot be deemed to have initiated

subsequent conversation “unless a substantial amount of

time has elapsed”). Although recognizing that “the accused

technically may begin a conversation with police,” ibid. (em-

phasis added), the court concluded that, “in the legal sense,”

id. at 26a, the statements must be deemed a continuation of

earlier interrogation because of “the coercive effect of the

interrogation.” Id. at 28a (quoting United States v. Gomez,

927 F.2d 1530, 1539 n.8 (11th Cir. 1991)). In doing so, the

court essentially extended Edwards's presumption of coer-

cion to include not just statements made “at the authorities’

behest” after the suspect invokes his right to the presence of

counsel at questioning, Roberson. 486 U.S. at 681, but also

statements made “at the suspect’s own instigation” after im-

proper police questioning. /bid.

That conclusion was error. Because curative efforts by

police and intervening circumstances can dissipate the ef-

fects of “interrogation,” there is no basis for conclusively

7

’

2

13

presuming that a suspect’s decision to initiate dialogue with

the police and his ensuing statements are the product of co-

ercion. The court below appeared to concede as much by

recognizing that a lengthy lapse of time or break in custody

could have a curative effect. There is no reason that curative

measures by the police that more directly address the effects

of post-invocation questioning cannot have a similar effect.

In this case, Detective Johns’s actions dissipated the risk

that respondent would be “badgered” into making state-

ments, and allowed] [respondent] a real choice between

talking and remaining silent.” Missouri v. Siebert, 124 S. Ct.

2601, 2608 (2004) (plurality opinion). Accordingly, voluntary

statements that respondent subsequently made are admissi-

ble.

1. Courts have recognized that intervening circum-

stances can minimize the risks that Edwards was

designed to address

The Edwards rule addresses the risk that police through

“*badger[ing]’ or ‘overreaching’ * * might wear

down the accused and persuade him to incriminate himself

notwithstanding his earlier request for counsel's assistance.”

Smith v. Illinois, 469 U.S. 91, 98 (1984) (per curiam); id. at 99

n.8 (“It was precisely such badgerſing] that the Edwards

safeguard was designed to prevent.”); Bradshaw, 462 U.S. at

1044 (plurality opinion) (stating that the Edwards rule is

“designed to protect an accused in police custody from being

badgered by police officers in the manner in which the de-

fendant in Edwards was”). But this Court has noted that the

Edwards presumption of coercion does not apply in situa-

tions in which the risk of police badgering is not significant.

In McNeil, 501 U.S. at 177, the Court indicated that state-

ments need not be “presumed involuntary and therefore in-

admissible as substantive evidence at trial” under Edwards

where there was a “break in custody” between the suspect’s

invocation of the right to counsel and subsequent interroga-

14

tion. Based on McNeil, the federal courts of appeals that

have addressed the question uniformly have held that Ed-

wards does not require a presumption of coercion where

post-invocation interrogation occurs after a break in custody,

even in cases in which the suspect’s interrogation began im-

mediately after he invoked his right to counsel.' Similarly,

the federal courts of appeals that have addressed the issue

have concluded, consistent with the court below, that a sig-

nificant lapse of time between initial post-invocation interro-

gation and a suspect's later initiation of communications with

the police supports the conclusion that coercion should not be

presumed and that statements may be found admissible.”

The Edwards presumption of coercion is inapplicable un-

der those circumstances because they operate to diminish

“the inherently coercive nature of custody itself,” and “there

is little to no risk of badgering by the authorities.” United

States v. Bautista, 145 F.3d 1140, 1150 (10th Cir.), cert. de-

nied, 525 U.S. 911 (1998); United States v. Harris, 221 F.3d

1048, 1052 (8th Cir. 2000) (“Concern that a suspect will be

‘badgered’ * * * is not present * * * where a person is

See. g. McFadden v. Garraghty, 820 F 2d 654, 661 (4th Cir. 1987);

United States v. Barlow, 41 F 3d 935, 945 & n.35 (5th Cir. 1994), cert. de-

nied, 514 U.S. 1030 (1995); United States ex rel. Espinoza v. Fairman, 813

F.2d 117, 125 (7th Cir.), cert. denied, 483 U.S. 1010 (1987), overruled on

other grounds by United States v. LaGrone, 43 F 3d 332 (7th Cir. 1994);

United States v. Harris, 221 F.3d 1048, 1052 (8th Cir. 2000) (collecting

cases), United States v. Skinner, 667 F 2d 1306, 1309 (9th Cir. 1982), cert.

denied, 463 U.S. 1229 (1983); United States v. Bautista, 145 F.3d 1140,

1150 (10th Cir.), cert. denied, 525 U.S. 911 (1998), Dunkins v. Thigpen, 854

F 2d 394, 397 (11th Cir. 1988), cert. denied, 489 U.S. 1059 (1989).

= See Hill v. Brigand, 199 F 3d 833, 842 (6th Cir. 1999), cert. denied,

529 U.S. 1134 (2000), see also Gomez, 927 F 2d at 1539 n. (suggesting that

“(i }t may be possible for enough time to elapse between the impermissible

further interrogation and the ‘initiation’ that the coercive effect of the

interrogation will have subsided”); Butzin v. Wood, 886 F.2d 1016, 1018

(sth Cir. 1989) (concluding that defendant’s confession was not the product

of previous days interrogation where the defendant renewed contact fol-

lowing a night in jail and defendant was not under great pressure from

authorities to speak), cert. denied, 496 U.S. 909 (1990).

15

not in continuous custody and the coercive effects of con-

finement dissolve.”); United States v. Barlow, 41 F.3d 935,

945-946 & n.35 (5th Cir. 1994) (same), cert. denied, 514 U.S.

1030 (1995); Dunkins v. Thigpen, 854 F.2d 394, 397 (11th Cir.

1988) (same), cert. denied, 489 U.S. 1059 (1989). The Court of

Appeals of Maryland itself acknowledged that a “break in

custody or adequate lapse in time” could “vitiate the coercive

effect” of post-invocation custodial interrogation. Pet. App.

26a (citing Dunkins).

There is no reason why a break in custody or a lapse in

time should exhaust “[the] scenarios [that] may * * * mili-

tate against the finding of an Edwards violation.” Holman

v. Kemna, 212 F.3d 413, 419 (8th Cir.), cert. denied, 531 U.S.

1021 (2000). Other circumstances may reduce the risk of

badgering sufficiently that no presumption of coercion is jus-

tified. See ibid. And curative measures that reinforce the

message that a suspect’s invocation of the right to counsel

will be honored, notwithstanding a prior improper comment,

fall precisely into the category of actions that justify permit-

ting a suspect validly to reinitiate dialogue with the police on

the subject of the investigation.

2. Curative measures can neutralize the potential

harms of improper questioning following an invo-

cation of the right to counsel

The effectiveness of a post-interrogation curative state-

ment must be judged in relation to the harms post-invocation

interrogation might cause. When a law enforcement officer

interrogates a suspect despite his invocation of his right to

the presence of counsel at questioning, the suspect may as-

sume that, despite the Miranda warnings, the right to coun-

sel does not apply under those circumstances or at least that

the police have no intention of respecting it. The Edwards

rule thus assures “that any statement made in subsequent

interrogation [was] not the result of coercive pressures.”

Minnick, 498 U.S. at 151; see Roberson, 486 U.S. at 686

16

(ATjo a suspect who has indicated his inability to cope with

the pressures of custodial interrogation by requesting coun-

sel, any further interrogation without counsel having been

provided will surely exacerbate whatever compulsion to

speak the suspect may be feeling.”).

A curative statement by police may effectively address

the harms caused by non-coercive post-invocation interroga-

tion by reassuring the suspect that police will honor his right

not to speak without the presence of counsel. A simple re-

administering of Miranda warnings might be insufficient,

because the suspect, having already been subjected to inter-

rogation despite the warnings and despite his invocation of

counsel, would not necessarily credit new warnings as giving

him a true choice to discontinue questioning or believe that

police would subsequently honor his wish to speak to them

only with the assistance of counsel. Cf. Roberson, 486 U.S.

at 686 (finding fresh Miranda warnings inadequate to dispel

Edwards presumption of coercion with respect to police-

"initiated questioning on a separate investigation). Rather,

an adequate curative measure would have to convey the

message that there would be no further police-initiated

questioning without counsel while the suspect remained in

custody. Such a measure would justify allowing the suspect

to exercise free choice on whether or not to initiate contact

with the police, and, if he does so, to allow courts to find a

valid waiver of Miranda rights based on the usual totality-

of-the-circumstances test, free from a conclusive presump-

tion that the waiver is ineffective.

Curative measures, of course, would not retroactively

render admissible statements made in response to post-invo-

cation interrogation before curative steps were taken. In

addition, curative measures would not relieve the govern-

ment of the burden of establishing that the curative meas-

ures were sufficient, that the suspect initiated dialogue with

the police, and that he knowingly, voluntarily, and intelli-

gently waived his Miranda right to counsel in custodial in-

17

terrogation. Bradshaw, 462 U.S. at 1044 (plurality opinion);

Edwards, 451 U.S. at 468 n.9; ef. Colorado v. Connelly, 479

US. 157, 168-169 (1986) (burden is on prosecution to show

waiver by a preponderance of the evidence). And where the

initial interrogation was actually coercive in the due process

sense, see Arizona v. Fulminante, 499 U.S. 279 (1991), the

government would bear the burden of showing that the sus-

pect did not speak because of “the continuing effect of the

coercive practices.” Lyons v. Oklahoma, 322 U.S. 596, 602

(1944). Such protections are adequate to safeguard the un-

derlying Fifth Amendment right, without imposing a per se

rule requiring a break in custody or a significant lapse of

time before a suspect may validly initiate dialogue with the

police following a breach of the prophylactic Edwards rule.

3. This Court's decisions support the conclusion that

curative measures can vitiate the Edwards pre-

sumption of coercion

In Oregon v. Elstad, 470 U.S. 298 (1985), this Court con-

fronted an analogous claim that a suspect’s giving of an ini-

tial statement without Miranda warnings tainted his later

provision of a second statement after he received Miranda

warnings and waived his rights. There, the police first elic-

3 The court of appeals apparently erred by combining the inquiry

whether a suspect “initiated” communication with the ultimate inquiry

whether the waiver of Miranda rights was voluntary. In considering

whether respondent initiated conversation, the court of appeals weighed

several factors that, while relevant to the ultimate issue of the voluntari-

ness of statements, are not relevant to determining whether the suspect

initiated“ communication. See Pet. App. 26a (considering, among other

factors, the fact that respondent “was seventeen years of age and] he was

in a cold holding cell with little clothing” in determining that he had not

“initiated the contact as that term is contemplated in the legal sense”).

The court erred by “melding [initiation and voluntariness| together.”

Bradshaw, 462 U.S. at 1045 ([The Oregon Court of Appeals was wrong in

thinking that an ‘initiation’ of a conversation or discussion by an accused

* * * sufficed to show a waiver of the previously asserted right to coun-

sel. The inquiries are separate).

18

ited an incriminating statement from the defendant without

administering Miranda warnings. One hour later, the same

officer who had taken the earlier statement administered the

warnings, and Elstad waived his rights and made additional

incriminating statements. Although the period between the

two statements was short and there was no change of per-

sonnel or significant intervening circumstance, the Court

held that the provision of Miranda warnings meant that

courts should no longer “presume the privilege against com-

pulsory self-incrimination hald] not been intelligently exer-

cised.” Id. at 310. The Court explained that, “absent delib-

erately coercive or improper tactics in obtaining the initial

statement,”

a careful and thorough administration of Miranda

warnings serves to cure the condition that rendered the

unwarned statement inadmissible. The warning conveys

the relevant information and thereafter the suspect’s

choice whether to exercise his privilege to remain silent

should ordinarily be viewed as an ‘act of free will.’

Id. at 310-311 (quoting Wong Sun v. United States, 371 U.S.

471, 486 (1963)); see also id. at 314 (a “subsequent admini-

stration of Miranda warnings to a suspect who has given a

voluntary but unwarned statement ordinarily should suffice

to remove the conditions that precluded the admission of the

earlier statement”).

Just as the provision of Miranda warnings in Elstad

served to vitiate the “presum[ption]” of compulsion in the

initial unwarned questioning, 470 U.S. at 310, and thereby

permitted the suspect validly to choose to speak to the po-

lice, id. at 314, so too an effective curative statement can

serve to neutralize any presumption of coercion and permit

the suspect to reinitiate dialogue with the police and validly

wal his rights. A curative statement to a suspect that his

right to counsel will be honored and that there will be no fur-

ther questioning in the absence of counsel neutralizes the

19

continuing impact of post-invocation police-initiated ques-

tioning. As in Elstad, once a suspect is assured that he will

not be subjected to further police-initiated interrogation in

the absence of counsel, “the suspect is free to exercise his

own volition in deciding whether or not to make a statement

to the authorities.” Id. at 308.

The Court's recent decision in Missouri v. Seibert, 124 8.

Ct. 2601 (2004), is likewise consistent with this approach. In

Seibert, a police officer employed a two-step questioning pro-

cedure under which he intentionally withheld Miranda

warnings, obtained a confession, and then, with the confes-

sion in hand, went over the same ground with the suspect

after administering the warnings. The intentional strategy

in that case was based “on the assumption that Miranda

warnings will tend to mean less when recited mid-interro-

gation, after inculpatory statements have already been ob-

tained.” Jd. at 2615 (Kennedy, J., concurring in the judg-

ment). The plurality and Justice Kennedy concluded that,

under the circumstances, the post-warning confession was

inadmissible. Id. at 2613 (plurality opinion); id. at 2616

(Kennedy, J., concurring in the judgment)). But a majority

of the Court reaffirmed the general validity of the Elstad

approach, id. at 2616 (Kennedy, J., concurring in the judg-

ment); id. at 2619 (O’Connor, J., dissenting), and several Jus-

tices suggested (or explicitly stated) that even intentional

two-step questioning would not render later warned state-

ments inadmissible if police made curative statements to re-

duce the effect of previous unwarned interrogation on the

suspect. See id. at 2613 (plurality opinion) (emphasizing that

“{njothing was said or done to dispel the oddity of warning

about legal rights to silence and counsel right after” interro-

gation); id. at 2615-2616 (Kennedy, J., concurring in the

judgment) (stating that “curative steps” such as a “warning

that explains the likely inadmissibility of [a] prewarning cus-

todial statement” can render post-warning statements ad-

missible).

20

Seibert, like Elstad, thus reinforces that improper devia-

tion from the Miranda safeguards does not prevent a sus-

pect, who is properly advised of his rights, from later decid-

ing to speak. As in those contexts, analysis under Edwards

should not be governed exclusively by legal presumptions

that for a significant period of time preclude a suspect from

exercising free choice, despite the taking of curative meas-

ures.

4. The broad attenuation analysis used in Fourth

Amendment cases is not warranted in the Ed-

wards context

Although the record is not entirely clear, it appears that

the trial court employed a broad attenuation analysis of the

sort developed for use in addressing the admissibility of evi-

dence derived from Fourth Amendment violations. See Pet.

App. 79a (stating that prosecution must prove that respon-

dent's waiver of right to counsel “was in no way due to the

unlawful and coercive interrogation”); id. at Sla (emphasiz-

ing that At hhere was no break in time or place” and “{n]o at-

tenuation” between Officer Reese’s statement and respon-

dent's later incriminating statements). See generally Brown

v. Illinois, 422 U.S. 590, 603-604 (1975) (in determining

whether illegal search or seizure under the Fourth Amend-

ment requires suppression of subsequent confession, looking

to the temporal proximity of the arrest and the confession,

the presence of intervening circumstances, and, particularly,

the purpose and flagrancy of the official misconduct”); Wong

Sun, 371 U.S. at 486. In both Elstad and Seibert, this Court

rejected suggestions to employ the sort of broad attenuation

analysis applicable in the Fourth Amendment. Cf. Elstad,

470 U.S. at 304-314; Seibert, 124 S. Ct. at 2610 n.4 (plurality

opinion); see also id. at 2616-2617 (O'Connor, J., dissenting).

Although the Seibert plurality formulated a multi-factor test similar

to Brown's for determining whether the second, warned confession was

admissible, it looked] to those factors to inform the psychological judg-

21

Especially because Edwards is a prophylactic rule adopted

to implement the Miranda rule, and thus post-invocation

questioning does not itself violate the core of the Fifth

Amendment, there is no more reason here than in Elstad

and Seibert to apply the broad Fourth Amendment “fruits”

analysis.

As the Court has observed, “the exclusionary rule

when utilized to effectuate the Fourth Amendment, serves

interests and policies that are distinct from those it serves

under the Fifth,” Elstad, 470 U.S. at 306 (quoting Brown,

422 U.S. at 601), and those differences warrant a different

approach to the exclusion of purported derivative evidence.

The Fourth Amendment “prohibits ‘unreasonable searches

and seizures’ whether or not the evidence is sought to be

used in a criminal trial, and a violation of the Amendment is

‘fully accomplished’ at the time of an unreasonable govern-

mental intrusion.” United States v. Verdugo-Urquidez, 494

U.S. 259, 264 (1990). Because the constitutional violation is

already complete and cannot be cured, the purpose of the

judicially created exclusionary rule is not to protect the de-

fendant’s rights, but to deter law enforcement officers from

committing future Fourth Amendment violations. See, e.g.,

Brown, 422 U.S. at 600-601. The Fourth Amendment test is

designed to determine whether the “causal chain” between

the Fourth Amendment violation and the confession is suffi-

ciently “broken” so that the admission of a confession that

stems from a Fourth Amendment violation will not under-

mine the deterrent rationale of the exclusionary rule. /d. at

602-603; Taylor v. Alabama, 457 U.S. 687, 690 (1982). No

curative measure, such as the giving of Miranda warnings,

can definitively break the causal chain, because the ques-

ment regarding whether the suspect had been informed effectively of her

right to remain silent.” 124 S. Ct. at 2617 (O’Connor, J., dissenting).

Hence, t he analytical underpinnings of the two approaches cue plural-

ity’s and Brown’s| are * * * entirely distinct, and they should not be con-

flated just because they function similarly in practice.” /bid.

22

tioning in at least some degree is always an “exploitation of

the illegality,” if only in the sense that the illegal search or

seizure made the questioning possible. Brown, 422 U.S. at

600; see id. at 603 (Miranda warnings are an “important fac-

tor,” but do not automatically mean that “the Fourth

Amendment violation has not been unduly exploited”).

In the Edwards context, as in Elstad, there has been only

a violation of a prophylactic rule designed to protect an un-

derlying constitutional right.” The purpose of excluding

statements under Edwards is to provide an additional safe-

guard for the defendant’s Fifth Amendment right at trial to

be free from compelled self-incrimination. A curative meas-

ure that ensures that, before the time of a subsequent

waiver, the defendant understood that police would honor

his decision not to speak to them without counsel eliminates

the need for a presumption of coercion and thus for exclud-

ing the statements. Particularly where (as here) the accused

has made no incriminating statements at the time police take

curative action, such curative measures would put the ac-

cused in the very same position he was before he was subject

to post-invocation questioning.

Accordingly, whereas the Fourth Amendment test focuses

on the extent of any objective causal connection between the

completed Fourth Amendment violation and the confession,

the relevant inquiry here must more narrowly focus on

whether the curative measures taken neutralized the impact

® See Chavez v. Martinez, 538 U.S. 760, 772 (2003) (plurality opinion)

(custodial interrogation without administration of Miranda w:rnings does

not violate the Constitution, so that there is no right to damage under 42

U.S.C. 1988 for such interrogation); id. at 777 (Souter, J., concurr ng in the

judgment) (cause of action for damages for unwarned interrogativn would

be “well outside the core of Fifth Amendment protection”); ic at 789

(Kennedy, J., concurring in part and dissenting in part) (agreemg with

plurality opinion that a “failure to give a Miranda warning does no , with-

out more, establish a completed violation when the unwarned in*-rroga-

tion ensues”).

23

of police-initiated, post-invocation questioning on the defen-

dant’s ability validly to waive his rights. See Seibert, 124 S.

Ct. at 2610 n.4 (plurality opinion) (Ailn a sequential confes-

sion case,” the appropriate inquiry is “whether in the cir-

cumstances the Miranda warnings given could reasonably

be found effective,” thereby permitting a valid waiver); El-

stad, 470 U.S. at 309 (“Though Miranda requires that the

unwarned admission must be suppressed, the admissibility

of any subsequent statement should turn * * * solely on

whether it is knowingly and voluntarily made.”) (emphasis

added).

C. A Rule That Improper Police Comments Cannot

Be Cured Absent A Break In Custody Or A Lapse

In Time Would Impose Unjustified Costs On The

Criminal Justice System

In determining whether to apply the Miranda and Ed-

wards rules to a new class of cases, this Court consistently

has weighed the benefits of applying those rules against the

costs incurred in those circumstances. See, e.g., Quarles, 467

U.S. at 657; Elstad, 470 U.S. at 308-309; Michigan v. Tucker,

417 U.S. 433, 450-451 (1974). Refusing to recognize the effi-

cacy of curative measures under Edwards would impose un-

justified costs on the criminal justice system that outweigh

any countervailing interests.

The cost to the criminal justice system of suppressing vol-

untary confessions is great. Voluntary admissions of guilt

“are more than merely desirable; they are essential to soci-

ety’s compelling interest in finding, convicting, and punish-

ing those who violate the law.” Texas v. Cobb, 532 U.S. 162,

172 (2001) (final quotation marks omitted) (quoting Moran v.

Burbine, 475 U.S. 412, 426 (1986)); McNeil, 501 U.S. at 181;

Elstad, 470 U.S. at 305. Excluding such admissions damages

the truth-seeking function of criminal trials and runs a seri-

ous risk of permitting guilty defendants to go free. It like-

wise imposes significant costs on the justice system to pre-

24

sume conclusively that once police have approached a sus-

pect who has previously invoked his right to counsel, any

communication initiated by the suspect was the product of

coercion—notwithstanding the prompt administration of

curative measures. “It is not unusual for a person * * *

who previously has expressed an unwillingness to talk or a

desire to have a lawyer, to change his mind and even wel-

come the opportunity to talk.“ Edwards, 451 U.S. at 490

(Powell, J., concurring in the result); McNeil, 501 U.S. at 178

(“suspects often believe that they can avoid the laying of

charges by demonstrating an assurance of innocence through

frank and unassisted answers to questions”). |

There is no justification for automatically incurring those

costs simply because the police engaged in questioning after

a request for counsel, even if the police take effective steps

to cure the continuing effects of that action. This Court has

consistently rejected constructions of the Miranda rule that

would render it “a blanket prohibition against the taking of

voluntary statements or a permanent immunity from further

interrogation,” noting that such an interpretation “would

transform the Miranda safeguards into wholly irrational ob-

stacles to legitimate police investigation activity.” Michiyan

v. Mosley, 423 U.S. 96, 102 (1975); ef. United States v. Cec-

colini, 435 U.S. 268, 278 (1978) (“{W]e have specifically re-

fused to hold that ‘making a confession under circumstances

which preclude its use, perpetually disables the confessor

from making a useable one after those conditions have been

removed.“) (quoting United States v. Bayer, 331 U.S. 532,

541 (1947)).

Recognizing that curative efforts may be effective would

not derogate from any deterrent function of the Edwards

rule.” (Indeed, it would provide a healthy incentive to take

The Edwards rule, of course, does not directly deter constitutional

violations. See United Stutes v. Patane, 124 S. Ct. 2620, 2629 (2004) ¢plu-

rality opinion) (because police do not violate a suspect’s constitutional

rights by failing to give Miranda warnings, “there is * * nothing to

25

curative measures wnen police take actions that, it left un-

corrected, would lead to suppression under Edwards.) Po-

lice already have substantial incentives to refrain from inter-

rogating suspects who have invoked their right to counsel.

The inadmissibility in the government’s case in chief of any

statement obtained before curative steps were taken itself

provides a strong incentive to comply with Edwards. See

Harris v. New York, 401 U.S. 222, 225 (1971) (“{Slufficient

deterrence flows when the evidence in question is made un-

available to the prosecution in its case in chief.”). Police offi-

cers who engage in interrogation after a suspect has invoked

his right to counsel also run the risk of a judieial finding that

any statement given was coerced. See Oregon v. Hass, 420

U.S. 714, 723 (1975). In that event, the initial statement

would be unusable for any purpose, physical evidence de-

rived from the statement might have to be suppressed, and

before any subsequent statements were admissible, the

court would have to consider whether the effects of the coer-

cion hald] carried over into the second confession.” Elstad,

470 U.S. at 310.

In contrast, officers who abide by Miranda and Edwards

are likely to persuade courts that all the statements they

have obtained are voluntary. As this Court has explained,

“cases in which a defendant can make a colorable argument

that a self-incriminating statement was ‘compelled’ despite

the fact that the law enforcement authorities adhered to the

dictates of Miranda are rare.“ Berkemer v. McCarty, 468

U.S. 420, 433 n.20 (1984); accord Seibert, 124 S. Ct. at 2608

(plurality opinion); Dickerson, 530 U.S. at 444. Thus, consid-

ering curative measures in determining whether a defendant

deter”); but see id. at 2631 (Kennedy, J., concurring in the judgment)

(finding it “unnecessary to decide * * * whether there is ‘|any|thing to

deter’ so long as the unwarned statements are not later introduced at

trial”); ef. also Seibert, 124 S. Ct. at 2616 (O’Connor, J., dissenting) (“This

Court has made clear that there simply is no place for a robust deterrence

doctrine with regard to violations of Miranda v. Arizona.”).

26

has initiated communication will still leave officers with

strong incentives to honor a suspect’s request to remain si-

lent. See Hass, 420 U.S. at 723 (stating that the risk that an

officer intentionally will “continue[] his interrogation after

the suspect asks for an attorney” because there is “perhaps

something to gain by way of possibly uncovering impeach-

ment material” is only a “speculative possibility”).

There is no appreciable danger that considering curative

measures in applying Edwards would enable law enforce-

ment officers to circumvent the Edwards rule, as by engag-

ing in an intentional two-step strategy of the sort that was at

issue in Seibert. If officers themselves initiate interrogation

of a suspect a second time, they would once again run afoul of

Edwards and statements obtained would be inadmissible.

An officer’s ability to obtain admissible statements after a

suspect’s invocation of the right to counsel turns entirely on

the suspect taking the initiative to approach the police—and

that event is outside their control. If the curative measures

are sufficient, initial post-invocation questioning would make

the suspect no more likely to initiate a discussion with the

police. And it would make no sense for police officers delib-

erately to initiate questioning after a suspect has invoked his

right to counsel, with all the risks that that entails, on the

mere hope that, after they have assured the suspect that

henceforth they will honor his request to stop discussing the

case, he will voluntarily approach police and initiate further

communication. Cf. Nix v. Williams, 467 U.S. 431, 445 (1984)

(“A police officer who is faced with the opportunity to obtain

evidence illegally will rarely, if ever, be in a position to cal-

culate whether the evidence sought would inevitably be dis-

covered.”).

D. Detective Johns's Statements Dissipated The Ef-

fects Of Post-Invocation Questioning

The Maryland Court of Appeals concluded that although

respondent had initiated] communication with police in

27

the “‘dictionary sense’ of the word,” he did not initiate com-

munication “as that term is contemplated in the legal sense,”

Pet. App. 26a, because “the voluntariness of such ‘initiation’

[wals suspect” in light of the prior police questioning after

respondent’s request for counsel. /d. at 28a. That conclusion

was mistaken. This case provides a particularly strong illus-

tration of curative actions that effectively negated the ef-

fects of the improper question.

Detective Johns’s immediate response to Officer Reese

statement—loudly stating, “No, he doesn’t want to talk to

us. He already asked for a lawyer. We cannot talk to him

now,” Pet. App. 6a, and ushering Officer Reese out of the

holding cell—made plain to respondent that the officers were

barred from talking to him in light of his invocation of the

right to counsel, that respondent’s invocation of his right to

counsel would be honored, and that efforts to badger him

into talking would not be tolerated. If, before intervening,

Johns had stood by and allowed respondent to make incrimi-

nating statements in response to Reese’s statement, or had

allowed Reese to continue to attempt to elicit incriminating

statements, respondent might have had cause to question

7 Before respondent initiated communication with police, the only con-

duct that occurred that could qualify as “interrogation” was Officer

Reese’s statement, “I bet you want to talk now, huh!” Detective Johns's

acts of handing the charging papers to respondent and informing him of

the charges did not constitute interrogation. Maryland law required the

officers to “inform the defendant of the nature of the offense charged” and

to serve “[a| copy of the warrant and charging document on the

defendant promptly after the arrest.” Md. R. 4-212(e); ef. Fed. R. Crim. P.

4X3 Fed. R. Crim. P. %e)(1Ma); Fed. R. Crim. P. 4, advisory commit-

tee notes to 2002 amendments (“Rule 4(c)3)(A) explicitly requires the

arresting officer in all instances to inform the defendant of the offense

charged and of the fact that an arrest warrant exists.”). Such routine be-

havior in conjunction with an arrest is not tantamount to interrogation.

This Court has held that statements by law enforcement officers “nor-

mally attendant to arrest and custody,” Rhode Island v. Innis, 446 U.S.

291, 301 (1980)—which certainly includes notice of the charges as required

by court rule o not constitute interrogation for purposes of Miranda.

28

Johns's good faith. Cf. Bautista, 145 F.3d at 1151 (continuing

interrogation after invocation would increase the coercive

effect of custody, “because the suspect would believe that

the police ‘promises’ to provide the suspect’s constitutional

rights were untrustworthy”) (quoting Tukes v. Dugger, 911

F.2d 508, 516 n.11 (11th Cir. 1990), cert. denied, 502 U.S. 898

(1991)). But Johns’s decisive action clearly demonstrated

that respondent was not expected to respond to Reese’s re-

mark and that he would not be subject to further questioning

before counsel arrived.

Nothing in the surrounding circumstances suggests that

Detective Johns’s action was ineffective to assure respon-

dent that the officers would respect his rights. Because of

Detective Johns’s prompt action, there is no question here of

the authorities having exploited a prior confession in order

to obtain a new one. Cf. Seibert, 124 S. Ct. 2612 (plurality

opinion). And Officer Reese’s eight-word statement was a

far cry from the sort of sustained badgering that prompted

the Edwards rule. Cf., e.g., Edwards, 451 U.S. at 479. Reese

did not conduct a full-scale, formal interrogation, but instead

made what reasonably appears to be a statement in the heat

of the moment. Nor did the statement involve threats,

promises, inducements, or a demand for an answer“ See

Pet. App. 52a.

N There was also no finding that police planned Reese’s question as an

intentional strategy to undermine respondent's invocation of the right to

counsel. Because intentionally improper conduct in this setting is unlikely

in any event, see pp. 24-26, supra, analysis should focus on the objective

character of the police action. The trial judge explicitly concluded that the

boilerplate statement of penalties included in the charging document,

which incorrectly suggested that the defendant was eligible for the death

penalty, was not done intentionally to influence the defendant, Pet. App.

72a, and in any event, that reference did not constitute “interrogation”

within the meaning of Miranda. See note 7, supra. Any role that the

misleading reference to the death sentence may have played in motivating

respondent to re-initiate dialogue with the police does not undercut the

fact that Detective Johns cured the only improper conduct under Edwards

29

The circumstances of respondent’s reinitiation also justify

respecting it as an act of respondent’s choice. Twenty-eight

minutes elapsed between Detective Johns’s curative state-

ment and respondent’s request to talk, during which the offi-

cers made no attempt to resume the interrogation and did

not return to respondent’s cell. And respondent expressed

his desire to speak to Detective Johns, who had returned to

respondent’s cell for unrelated purposes (to deliver clothes

retrieved from respondent’s home). Respondent had no rea-

son to fear that Johns would attempt to elicit statements

from him, since Johns was the officer who had earlier re-

buked Reese and made clear that the police would respect

his wishes not to be questioned in the absence of counsel.

Officer Reese was not present. Cf. Elstad, 470 U.S. at 310

(“When a prior statement is actually coerced, * * * [a]

change in identity of the interrogators * bears] on

whether coercion has carried over into the second confes-

sion.”). Finally, before allowing respondent to discuss the

case, Detective Johns gave him a fresh set of Miranda

warnings. The warnings not only reaffirmed respondent’s

right to counsel, but provided respondent with an additional

demonstration of Detective Johns’s attention to the protec-

tion of his rights.

In short, despite Officer Reese’s improper comment, by

the time respondent waived his rights he could not have rea-

sonably bel ved that his right to counsel was a fiction or

that he faced the threat of further uncounseled interrogation

by police. Indeed, Detective Johns’s prompt rebuk of Offi-

cer Reese provided respondent with a demonstration of the

Edwards rule that should have left him even more confident

about the reality of his right to counsel than the ordinary

suspect would be after initially receiving Miranda warnings.

Under the circumstances, there is every reason to respect

by reaffirming respondent’s invocation of his right to counsel and by stat-

ing that we cannot talk to him now.” Pet. App. 6a.

30

respondent's decision to initiate dialogue with the police, and

no reason to apply the “extraordinary” (McNeil, 501 U.S. at

183 (Kennedy, J., concurring)) and conclusive presumption of

coercion to the statements respondent made after initiating

communications with police.

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.

PAUL D. CLEMENT

Acting Solicitor General

JOHN C. RICHTER

Acting Assistant Attorney

General

MICHAEL R. DREEBEN

Deputy Solicitor General

JOHN P. ELWooD

Assistant to the Solicitor

General

JOEL M. GERSHOWITZ

Attorney

JUNE 2005