Chapter 45: Miranda Post-Invocation Interrogation

[1] CAL: P. Fayed (2020) 9 C5
147, 165 ["even if defendant properly invoked his Fifth Amendment
[i.e., not Sixth Amendment] right to counsel on July 29 when first
arrested for Pamela's murder, the intervening passage of time
along with defendant's release and break in custody meant that his
invocation did not remain in force on September 10 when he made
the incriminating statements to Smith."]. NOTE: Although
Fayed was out of custody for about six weeks before he was
rearrested and made his incriminating statement, the court said
nothing to indicate that the passage of six weeks was the reason
for its ruling. NOTE:
Shatzer does not apply to invocations of the right to remain
silent:
Prior to Fayed, we noted the following in our conclusion
that Shatzer does not apply if the suspect invoked only the
right to remain silent: "First, the Court in
Shatzer repeatedly limited its holding to invocations of
the right to counsel; i.e., it was addressing the rule announced
in Edwards v. Arizona (1981) 451 US 477 that there is a
presumption that any police-initiated questioning following a
suspect's invocation of the right to counsel was "not the purely
voluntary choice of the suspect."
Arizona v. Roberson (1988) 486 US 675, 681. No such
presumption, however, attaches to an invocation of the right to
remain silent. In fact, the Court in Miranda expressly
distinguished the consequences of these two types of invocations.
Specifically, it ruled that, if a suspect invoked the right to
counsel, "the interrogation must cease until an attorney is
present. At that time, the individual must have an opportunity to
confer with the attorney and to have him present during any
subsequent questioning." Miranda v. Arizona (1966) 384 US
436, 474. In contrast, if the suspect invoked only the right to
remain silent, the Court said the Miranda restrictions
would apply only if the suspect was subjected to "in-custody
interrogation." Ibid. Third, the main reason the Court in
Shatzer required a 14-day wait was to allow the suspect
enough time to consult with an attorney because, by invoking the
right to counsel, he had demonstrated that "he is not capable of
undergoing custodial questioning without advice of counsel.
Maryland v. Shatzer (2010) 559 US 98, 104. But if the
suspect invokes only the right to remain silent, he has
demonstrated no such incapacity. Fourth, the Court in
Shatzer said nothing that would cast doubt on the
continuing validity of Michigan v. Mosley's "scrupulously
honored" test pertaining to invocations of the right to remain
silent."

[2] USSC: Michigan v.
Mosley (1975) 423 US 96, 104 [the officer "immediately
ceased the interrogation"]. CAL: P v.
Warner (1988) 203 CA3 1122, 1130 [the officer "immediately
ceased all interrogation"]; P v. Riva (2004)
112 CA4 981, 994 ["Questioning ceased once Riva told [the officer]
'I don't want to say anything else right now.'"]; P
v. Lispier (1992) 4 CA4 1317, 1324 [the invocation
"was respected by the original arresting officers, and all
interrogation ceased"]. COMPARE: US v.
Rambo (10C 2004) 365 F3 906, 911 ["When Rambo stated that
he did not want to discuss the robberies, [the officer] made no
move to end the encounter."]; In re Gilbert E. (1995) 32
CA4 1598, 1601 [the detective's "continued questioning of
appellant after he had refused to waive his rights was a
deliberate violation of Miranda"]; US v.
Lopez-Diaz (9C 1980) 630 F2 661 ["Lopez-Diaz said that he
did not want to talk about the drugs in the van but [after a short
conversation] he was asked about the drugs in the van."].

[3] QUOTE FROM: US v.
Montgomery (7C 2009) 555 F3 623, 634. USSC:
Michigan v. Mosley (1975) 423 US 96, 104 [the
officer "did not try either to resume the questioning or in any
way to persuade Mosley to reconsider his position"]. CAL:
P v. Johnson (2022) 12 C5 544, 588 ["But surely the
converse is also true: where a suspect is not berated, though that
fact is not dispositive, it makes it less likely his initiation
was tainted by law enforcement misconduct."]; P v.
Warner (1988) 203 CA3 1122, 1130 [the officer "tried
neither to resume the discussion nor persuade defendant to
reconsider his position]; P v. Riva (2004)
112 CA4 981, 994 ["The evidence does not suggest [the officer]
attempted to intimidate Riva at any time."]. 9th CIR:
US v. Hsu (9C 1988) 852 F2 407, 412 ["the agents here cut
off the first round of questioning as soon as Hsu expressed a
desire not to speak"]. OTHER: US v. Montgomery (7C
2009) 555 F3 623, 634 [the "test" is whether "the police sought to
undermine the suspect's resolve to remain silent"].
COMPARE: P v. Harris (1989) 211 CA3 640, 649
[prodding occurred when, after suspect invoked, an officer said,
"I thought you were going to come back and straighten it out"];
US v. Barone (1C 1992) 968 F2 1378, 1384 [the
officers did not "scrupulously honor" Barone's invocation because
they "repeatedly spoke to Barone for the purpose of changing his
mind"].

[4] CAL: P v.
McClary (1977) 20 C3 218, 226 ["a change of mind prompted
by continued interrogation and efforts to convince the defendant
to communicate with the officers cannot be considered a voluntary,
self-initiated conversation"]. 9th CIR: US
v. Lopez-Diaz (9C 1980) 630 F2 661, 664-65
[invocation not scrupulously honored when officers asked him about
the drugs in his possession shortly after he said he did not want
to talk about that subject].

[5] EXAMPLES: The following are examples
of prodding:

• P v. Harris (1989) 211 CA3 640: The defendant
left town after officers questioned him about a murder. Two days
later, he spoke with an officer on the phone and agreed to come
back and discuss the matter further. But when he returned and was
arrested, he responded "Not really" when asked if he was willing
to waive his rights. At this point, the officer said, "I thought
you were going to come back and straighten it out?" Defendant
later confessed. Court: The officer's question to Harris
was "a prodding invitation to further discussion about the
incident." Also see P v. Clark (1993) 5 C4 950, 986,
fn.9 ["Defendant was not urged to 'straighten it out' in this case
as was the defendant in Harris."]; P v.
Boyer (1989) 48 C3 247, 274 [the officer confronted the
defendant "with a discrepancy in his story"];
US v. Olof (9C 1975) 527 F2 752, 753 [the officer
"confronted appellant with a description of federal prison"];
US v. Barone (1C 1992) 968 F2 1378, 1384 [the officers
"repeatedly spoke to [the suspect] for the purpose of changing his
mind"]; US v. Tyler (3C 1998) 164 F3 150, 155 [the
officer's command to "tell the truth" after the invocation was
"the antithesis of scrupulously honoring" his invocation"];
US v. Barnes (9C 1970) 432 F2 89 [prodding
occurred when, after the suspects invoked, officers put them in a
room with an accomplice and, at the officers' request, the
accomplice repeated her confession].

• P v. Davis (2005) 36 C4 510: The
defendant was arrested for murdering two people who had been shot
with an Uzi. At the police station, Davis invoked his right to
remain silent and was placed in a holding cell. Later that day, a
detective entered the cell and said to Davis, "Remember that Uzi?
"Yeah," said Davis. "Think about that little fingerprint on it.
We'll see yak. (Jail door closes)." Although the issue in the case
was not whether the detective "scrupulously honored" Davis's
invocation, the California Supreme Court left no doubt that it
thought the detective had prodded Davis's incriminating
statements. Court: "[When the detective] said, 'Think about
that little fingerprint on [the Uzi],' he implied that defendant's
fingerprint had been found on the Uzi, and thus indirectly accused
defendant of personally shooting the victims; this comment was
likely to elicit an incriminating response and thus was the
functional equivalent of interrogation." Edited.

• US v. Tyler (3C 1998) 164 F3 150: The
defendant invoked his right to remain silent after he was arrested
for murdering a police informant. Later that evening, officers put
him in a small room containing "a timeline of the murder
investigation and crime scene photographs, including two
photographs of the body of [the victim]." Officers then began
talking with Tyler about "hunting, Tyler's education, and Tyler's
mother's health." As they talked, Tyler became "very emotional,"
at which point one of the officers urged him to "tell the truth."
He then made some incriminating statements. Eleven days later,
officers recontacted him in the jail and, after obtaining another
waiver, elicited further admissions. Court: "[The officer]
had been carrying on a conversation with Tyler for nearly an hour
when he broke down and was instructed to 'tell the truth.'" These
circumstances would, in and of themselves, be inconsistent with
scrupulously honoring Tyler's assertion of silence. However, to
make matters worse, the room in which the 'conversation' occurred
had pictures of the murder victim hung on the walls."

• US v. Rambo (10C 2004) 365 F3 906,
911: The defendant was arrested for two robberies and was a
suspect in several others. When an officer asked, "Do you want to
talk to me about this stuff" he said no. At that point the officer
told him, "If you think back over the last two months since you've
been out of prison, all the shit you've been involved in. Think
about this. Think about the towns that are going to want to talk
to you, OK?" Court: "These comments reflect both further
pressure on Rambo to discuss the crimes and a suggestion that
despite Rambo's present request to terminate discussion of the
topic, he would be questioned further."

[6] CAL: P v. Peracchi (2001) 86
CA4 353, 363 ["the officer here had no reason to question Peracchi
about his motivation for remaining silent"]. OTHER:
Anderson v. Smith (2C 1984) 751 F2 96, 105 [an officer
"never needs to know why a suspect wants to remain silent; once it
is clear that the suspect wants to remain silent, the
interrogation should cease." BUT ALSO SEE:
US v. Hsu (9C 1988) 852 F2 407, 410 ["Our reading of
Mosley is not so wooden. Far from laying down inflexible
constraints on police questioning and individual choice,
Mosley envisioned an inquiry into all the relevant facts to
determine whether the suspect's rights had been respected."].

[7] USSC: Michigan v.
Mosley (1975) 423 US 96, 104 ["After an interval of more
than two hours, Mosley was questioned by another police officer"].
CAL: P v. Krebs (2019) 8 C5 _265, 313 ["Yet, despite
the failure to honor defendant's right to remain silent, [the
officer] made no contact with defendant for the next 18 hours."];
P v. Riva (2004) 112 CA4 981, 994 ["A
one-hour period between the end of the first interrogation and the
start of the second was not so short as to constitute badgering or
harassing the suspect"]; P v. Martinez (2010)
47 C4 911, 950 [overnight]; P v. Warner (1988) 203
CA3 1122, 1130 [overnight]; P v. DeLeon (1994) 22
CA4 1265, 1272 [five days]; P v. Lispier (1992) 4
CA4 1317, 1324 ["a few days"]. ALSO SEE: US
v. Hue (9C 1988) 852 F2 407, 412 [a time lapse of
only 30 minutes "might ordinarily incline us toward a conclusion
that the right to cut off questioning was not respected"].

[8] USSC: Michigan v.
Mosley (1975) 423 US 96, 102 ["To permit the continuation
of custodial interrogation after a momentary cessation would
clearly frustrate the purposes of Miranda."].
CAL: P v. Bridgeford (2015) 241 CA4 887, 902
["appellant's second interview was conducted in violation of
[Shatzer] when the second interview occurred only hours
after appellant invoked his right to counsel and was released from
custody"]; P v. Harris (1989) 211 CA3 640, 647 ["one
minute" not sufficient]. OTHER: US v.
Rambo (10C 2004) 365 F3 906, 911 ["Whatever else
Mosley might require, it is clear that some break in the
interrogation must occur."].

[9] CAL: P v. Krebs (2019) 8 C5
265, 315 ["Apart from his failure to immediately cease
questioning, [the officer's] interrogation techniques were not
coercive."]. 9th CIR: US v.
Lopez-Diaz (9C 1980) 630 F2 661, 665 [there is a "critical
distinction" between interrogation and merely asking whether the
suspect "has changed his mind" about invoking]; US
v. Hsu (9C 1988) 852 F2 407, 412 ["Agent Hill
exerted no pressure upon Hsu whatsoever. He merely read Hsu his
rights a second time"].

[10] USSC: Michigan v.
Mosley (1975) 423 US 96, 97-98.

[11] USSC: Minnick v.
Mississippi (1990) 498 US 146, 156 [the suspect must have
"initiated the conversation or discussions with the authorities"];
Edwards v. Arizona (1981) 451 US 477, 485
[the suspect must have initiated "further communication,
exchanges, or conversations with the police"]. CAL:
P v. Davis (2009) 46 C4 539, 596 [officers
may resume an interview if the suspect "initiated further
discussions with the police"]; P v. Frank C (1982)
138 CA3 708, 713 ["Notwithstanding an initial assertion of the
right to remain silent, a statement subsequently made by a suspect
in custody is admissible if it was volunteered upon his own
initiative and was not made in response to interrogation by
police."]. 9th CIR: US v. Michaud (9C
2001) 268 F3 728, 737-38 [court ruled that Michaud initiated
questioning when (1) she and a fellow inmate approached a jailer,
(2) the fellow inmate said that Michaud wanted to talk about a
murder; and (3), Michaud confirmed this was true]; US
v. Garvin (9C 2001) 258 F3 951.
COMPARE: Martinez v. Cate (9C 2018) 903 F3 982, 996
["No fairminded jurist could interpret Martinez's statement ['What
am I being booked under?"] as a re-initiation of the
conversation."]. NOTE: Under these circumstances,
post-invocation questioning is permitted even if the suspect was
represented by counsel. P v. Rich (1988) 45 C3 1036,
1081; P v. Stephens (1990) 218 CA3 575, 585.

[12] CAL: P v.
Sapp (2003) 31 C4 240, 268-69 [officer "properly advised
defendant that none of the homicide investigators could question
him unless defendant initiated contact with them"].

[13] CAL: P v.
Mickey (1991) 54 C3 612, 652 [Mickey "initiated further
discussion" when he told the detective that he would be willing to
"continue our conversation at a later time"];
P v. Brockman (1969) 2 CA3 1002, 1010 ["Wait, give me a
couple of days and I'll make a statement"]. 9th CIR:
Mickey v. Ayers (9C 2010) 606 F3 1223, 1235 [Mickey
initiated the discussion"]; US v. Michaud (9C 2001) 268 F3
728, 737-38 [jailed murder suspect initiated questioning when (1)
she and a fellow inmate approached a jailer, (2) the fellow inmate
said that Michaud wanted to talk about a murder; and (3), Michaud
confirmed this was true]. NOTE: A suspect's initiation of
questioning will not necessarily be invalidated merely because he
did so after being placed in an area in which the investigating
officers were nearby. See P v. Waidla (2000) 22 C4
690, 732 [court rejects the argument that the suspect must not
only initiate the questioning, but must also initiate the
encounter]; P v. Mickey (1991) 54 C3 612. 652
["[Mickey] argues that the rule [permitting suspect-initiated
questioning] requires that the suspect initiate the meeting with
the police and not merely the discussion. We find no such
requirement."].

[14] CAL: P v.
Davis (2009) 46 C4 539, 596 ["a defendant's decision to
talk with police cannot be a product of police interrogation,
badgering, or overreaching"]; P v. McClary (1977) 20
C3 218, 226 ["a change of mind on the part of the defendant
prompted by the advice of counsel, his own psychological make-up,
or similar facts is not proscribed by Miranda"];
P v. Hayes (1985) 169 CA3 898, 909 ["Miranda
does not proscribe a suspect from changing his mind concerning
speaking to the police, when his change of heart is a voluntary
one"].

[15] EXAMPLES

Suspect "freely initiated" questioning

• After invoking his Miranda right to counsel, the
suspect asked a jailer to notify the investigating officer that he
wanted to talk with him. P v. Davis (2009) 46
C4 539, 589-92.

• Defendant was arrested for a home invasion robbery. After
invoking his Miranda right to counsel and having obtained
counsel, he sent word to the investigating officer that he wanted
to talk with him. The interview began with the defendant asking
why the DA was offering him 16 years. The officer responded that
it was probably because of Stephens record and seriousness of the
crime. The officer also told Stephens that, because he had
invoked, he did not want him to say anything more without an
attorney being present. Stephens told the officers that he was in
the process of firing his attorney and, at about this time,
admitted that he was present during the robbery. Court:
Stephens' statement was obtained lawfully because he had requested
the meeting and the officer's comments did not constitute
"interrogation." P v. Stephens (1990) 218 CA3 575,
582. ALSO SEE: P v. San Nicolas (2005)
34 C4 614, 642-43; Shedelbower v. Estelle (9C
1989) 885 F2 570, 573 [the officer's statements after the
invocation "did not call for nor elicit an incriminating response;
they were not the type of comments that would encourage [the
suspect] to make some spontaneous incriminating remark," edited];
P v. Morris (1991) 53 C3 152, 200-1 [permitting a
suspect to speak with his girlfriend for five minutes did not
render his subsequent decision to talk to officers "not freely
initiated"]; US v. Michaud (9C 2001) 268 F3
728, 737 ["At no point did the law enforcement officials
unconstitutionally attempt to coerce Michaud into speaking with
them."].

Suspect did not "freely initiate" questioning

• P v. Superior Court (Zolnay) (1975) 15 C3
729: Sheriff's deputies were questioning two burglary suspects
when one of them invoked his right to counsel. The deputies then
left the room after telling the suspects that they could make the
deputies' jobs "easy or tough" and suggesting that they should
"talk the matter over." When the deputies returned about ten
minutes later, the suspects said they had decided not to invoke
after all, and they eventually confessed. Court: The
confessions were inadmissible because, even if the suspects could
be said to have initiated the questioning, they did not do so
freely because of "the deputies' assertion that defendants could
make their jobs easy or tough, and their question whether
defendants had reached a decision." Also see
In re Gilbert E. (1995) 32 CA4 1598, 1601 ["[The
detective's] continued questioning of appellant after he had
refused to waive his rights was a deliberate violation of
Miranda."].

• P v. Neal (2003) 31 C4 63: Officers continued
to question the defendant, a murder suspect, although he had
invoked his Miranda right to counsel nine times. Finally,
an officer told him, "But believe me, if you don't try and
cooperate, the system is going to stick it to you as hard as they
can ... [that is] charge you with a heavier charge as they can,
you know first degree murder or whatever." Court: The
suspect's decision to reinitiate was a result of coercion.

• P v. McClary (1977) 20 C3 218, 229: Officers
ignored the defendant's invocation of her Miranda right to
counsel and continued to aggressively question her. At one point,
they said that unless she confessed she would be charged as a
"principal" and "thus subject to the death penalty." The interview
ended without a confession but, about three hours later, McClary
informed the officers they she "wished to tell the truth." She
then confessed. Court: "A change of mind prompted by
continued interrogation and efforts to convince the defendant to
communicate with the officers cannot be considered a voluntary,
self-initiated conversation."].

• P v. Harris (1989) 211 CA3 640, 649: The
defendant, a murder suspect, invoked his right to remain silent.
Although the officers immediately terminated the interview, before
leaving the room one of them said to the suspect, "I thought you
were going to come back and straighten it out." The suspect
responded that "he did wish to do this." The officers conferred
and concluded that the defendant's remark indicated he had changed
his mind about invoking. So they returned to the room and asked,
"Okay, Terry, you indicated to me that you might be wanting to
change your mind and talk. Is that true or not?" The defendant
said yes and, after waiving his rights, confessed. Court:
Defendant had not "freely and voluntarily initiated the second
interview" because the officer had disregarded the defendant's
invocation when he said "I thought you were going to come back and
straighten it out"—constituted post-invocation interrogation
because it was reasonably likely to elicit an incriminating
response.

[16] USSC: Edwards v.
Arizona (1981) 451 US 477, 484-85. CAL: P v.
Thompson (1990) 50 C3 134 [defendant's statement "could
reasonably be interpreted by the officer as opening a generalized
discussion, and that the officer understood the request in that
light"]; P v. Bradford (1997) 14 C4 1005, 1034-37;
P v. Dominick (1986) 182 CA3 1174, 1190.

[17] QUOTE FROM: Oregon v.
Bradshaw (1983) 462 US 1039, 1045 ["There are some
inquiries, such as a request for a drink of water or a request to
use a telephone, that are so routine that they cannot be fairly
said to represent a desire on the part of an accused to open up a
more generalized discussion"].

[18] EXAMPLES: Suspect opened up a
general discussion:

Talk about suspect's case: The suspect said he wanted to
talk about his case, or ask questions about it.
P v. Sultana (1988) 204 CA3 511, 521;
P v. San Nicolas (2004) 34 C4 614, 641 [suspect "indicated
that he was ready to talk [to the officer] if he was still
interested"]; P v. Dominick (1986) 182 CA3 1174, 1190;
Shedelbower v. Estelle (9C 1989) 885 F2 570, 573;
Henness v. Bagley (6C 2011) 644 F3 308, 320 [during a
recorded jailhouse phone call to a friend, the suspect said if
"detectives would come and see me, I would tell them all about
it"].

The suspect started talking about his case.
In re Frank C. (1982) 138 CA3 708, 713 [suspect motioned at
an officer and began explaining how the crime occurred; e.g., "I
remember, I was at Tiny's wall. I had blood on my hands."].

Talk about a deal: The suspect asked about obtaining a
reduced sentence. P v. Tully (2012) 54 C4 952, 985 [after
invoking, defendant "reinitiated the conversation when he told
[the officer] he did not want to go to jail that night, after
which [the officer] suggested defendant might 'work off' his
offense by becoming an informant"].

Suspect wants to talk about other crime: Suspect told
officers he wanted to talk about a crime for which she had not yet
been arrested. US v. Michaud (9C 2001) 268 F3 728,
737-38 [suspect said she "needed to talk to somebody about a
murder that had happened in Alpine County"].

Questions about evidence: A suspect may demonstrate an
intent to open a general discussion about his case if he said he
wanted to talk about one or more items of incriminating evidence.

• A multiple-murder suspect initiated questioning when he
asked an officer what the police had done with the car he had used
in several of his crimes. After telling the suspect that his car
had been impounded, the officer asked him about some clothes that
were found inside it. The suspect responded by making an
incriminating statement. The court ruled the officer could
reasonably believe that the suspect had opened a general
discussion because the car "held highly incriminating evidence."
Furthermore, "There was no indication in defendant's request to
speak to [the officer] that defendant wished to discuss only
routine matters related to his incarceration."
P v. Mattson (1990) 50 C3 826, 859-62:

• Suspect reinitiated when he said, "Let me tell you about
the car [that was used in the commission of the crime]."
Poyner v. Murray (4C 1992) 964 F2 1404, 1413.

Suspect wants accomplice released: A suspect may open a
general discussion if he tells officers he wants to discuss
getting his accomplice released or that he wants to talk about
getting his accomplice's charges reduced. This is because the
accomplice's liability will usually depend on both his and the
suspect's roles in the crime.

• [Defendant, "without prompting, raised the subject of his
wife's involvement in the case, assuring [the detective] that she
did not know anyone was going to be killed. This statement can be
fairly said to represent a desire on his part to open up a more
generalized discussion"]. P v. Gamache (2010) 48 C4 347,
386.

• The defendant opened up a general discussion when he asked
to speak with an officer about releasing his girlfriend who had
been arrested as an accessory. Said the court, "Defendant's
request to talk about Lisa was not an innocuous request,
comparable to asking for a drink of water. Lisa was under arrest
as an accessory after the fact, and police willingness to release
her depended on her noncomplicity in the crime. Defendant's
request for Lisa's release might reasonably be met with a
suggestion that defendant discuss the crime to show Lisa's
noninvolvement."
P v. Thompson (1990) 50 C4 134, 164: NOTE: In
In re Z.A. (2012) 207 C4 1401, 1418 the court ruled that
the defendant's statement "Well I want to know if [my accomplice]
is going to stay here how much time" pertained only to "routine
incidents of the custodial relationship." The court, however,
neglected to analyze the issue (as did the court in
Thompson) and, thus, its opinion seems slipshod.

Suspect offers assistance: A suspect may be deemed to have
opened up a general discussion about his case if he says he
offered to assist officers in their investigation.

• The defendant, was arrested by INS agents on a Los Angeles
murder warrant as he entered the US from Canada. When an agent
Mirandized him, he invoked his right to counsel. The next
day, two LAPD detectives arrived to take him back to Los Angeles.
Waidla recognized one of the detectives as an LAPD officer and
asked, "What can I do for you?" or "What do you want from me?" The
officer told him that he "would get a room where [they] could sit
down and [he] would explain [his] reason for being there." When
they sat down, the detective Mirandized Waidla, who waived
his rights and eventually confessed. On appeal, the court ruled
that Waidla's words "can fairly be said" to represent a desire to
talk about his crimes. P v. Waidla (2000) 22 C4 690.

• Suspect asked a psychiatrist if he wanted to "talk about
it."
P v. Johnson (2022) 12 C5 544, 584 ["Defendant's question
to Patterson, 'Still here, huh?,' followed by defendant's question
to Patterson if he wanted to 'talk about it,' squarely falls
within the kinds of statements we have found to constitute an
initiation of further communication by the accused."].

"Can I talk to you?": P v. Hensley (2014) 59 C4 788,
811[ "As Detective Faust was leaving [after defendant invoked his
right to counsel] defendant asked, 'Can I talk to you for a
minute?' He thus reinitiated the interrogation."].

"Don't leave": Defendant reinitiated questioning "by asking
the agents not to leave, indicating that he wanted to speak with
them. US v. Gonzalez (2C 2014) 764 F3 159. 166.

What's next? A suspect may demonstrate an intent to discuss
the crime if he later asked what is going to happen next and did
not indicate that he was only asking about certain technical
matters.

• After invoking, Bradshaw was transferred to the county jail
where he asked an officer, "What's going to happen to me now?" The
officer responded by telling him, "You do not have to talk to me.
You have requested an attorney and I don't want you talking to me
unless you do so desire because—since you have requested an
attorney—you know, it has to be at our own free will." After
telling Bradshaw where he was being taken, the officer suggested
that he "might help himself by taking a polygraph examination."
Bradshaw agreed and, following the test, he confessed. The Court
acknowledged that Bradshaw's remark was "ambiguous." Nevertheless,
it "evinced a willingness and a desire for a generalized
discussion about the investigation," especially because the
officer immediately reminded Bradshaw that he did not have to talk
to him, adding, "and only after [Bradshaw] told him that he
'understood' did they have a generalized conversation."
Oregon v. Bradshaw (1983) 462 US 1039:

• The defendant was arrested in Las Vegas for murdering a
Domino's Pizza employee in Glendale. When Glendale officers sought
to question him, he invoked. As the officers were preparing to
leave the interview room, Sims asked "what was going to happen"
regarding extradition. One of the officers explained the
extradition procedure. He then told Sims about some evidence
linking him to the murder scene. In response, Sims said, "I had to
kill that boy." The officer then described the scene, noting that
the victim had been left "gagged and submerged" in a bathtub. Sims
then explained he had to kill the pizza delivery boy because, "The
boy would have identified me." The court ruled that Sims did
not initiate questioning when he asked about extradition.
Said the court, "By his offhand remark as to 'what was going to
happen from this point on' (coupled with a reference to
extradition), which he posed to the police officers as they
prepared to leave, defendant did not open the door to
interrogation after previously having invoked his
Miranda rights." P v. Sims (1993) 5 C4 405.

Request to talk later: If the suspect invokes but tells the
officers he is willing to talk to them later, the officers may
later contact him and, if he waives his rights, question him about
his case. Under these circumstances, the interview is "suspect
initiated" because the officers can reasonably infer that that
suspect's remark that he was willing to talk later, demonstrated a
willingness to talk about his case.

•The defendant, a murder suspect, had invoked
Miranda right to counsel while being extradited to Placer
County from Japan via Honolulu. During the flight, he became quite
emotional and made spontaneous statements to an officer about how
and why the murder occurred. When the plane landed in Honolulu at
about 6:30 a.m. for a one-day stopover, he told the officer, "I
would like to continue our conversation at a later time." Mickey
was then taken to the Honolulu jail. At about 12:30 p.m., the
officer went to the jail and spoke with Mickey, who acknowledged
that he had requested the interview. Mickey then waived his
Miranda rights and, during the subsequent interview, made
several incriminating statements. The court ruled these statements
were admissible despite the previous invocation because Mickey
"initiated further discussion" when told the officer he would like
to "continue our conversation at a later time." The court noted
that Mickey's statements "can be fairly said to represent a desire
on his part to open up a more generalized discussion relating
directly or indirectly to the investigation."
P v. Mickey (1991) 54 C3 612, 641-53. Also see
Mickey v. Ayers (9C 2010) 606 F3 1223, 1235.

EXAMPLES: Suspect did not open up a general discussion:

Questions about sentencing: A suspect does not necessarily
demonstrate a willingness to talk generally about his case if he
merely wants to know how much time he will have to spend in
prison.

• After invoking his right to counsel, a murder suspect asked
jailers to notify one of the investigating officers that he wanted
to talk to him. When the officer arrived at the jail, the suspect
said "I want to know how much time I would get for killing that
lady if I pled guilty." The officer responded that the sentence
was up to the court, but that he would like to ask him some more
questions about the murder if he was willing. The suspect said,
"go ahead" and, after waiving his rights, confessed. On appeal,
the court ruled that the statements he made during the second
interview should have been suppressed because, said the court, "it
is clear Dingle did not initiate the second interrogation when he
asked [the officer] how much time he would get if he pleaded
guilty." P v. Dingle (1985) 174 CA3 21.

Questions about accomplice's status

• After invoking, the suspect said, "Well, I want to know if
[her accomplice] is going to stay here how much time." Court: "It
appears that rather than reinitiating discussion of the
investigation, Z.A. was inquiring as to how long her boyfriend
would have to remain at the port of entry, or, at most, how much
time he would have to serve in custody if were found
guilty…"
In re Z.A. (2012) 207 CA4 1401, 1418.

[19] CAL: P v. Thomas (2012) 54
C4 908, 927 ["Even if the record in this case is read as
establishing that defendant said only that he wanted to talk about
the Flennaugh crimes with the Hayward detective, it does not
establish that he wanted to talk only about the Flennaugh crimes
with the Hayward detective."]; P v. Mattson (1990)
50 C3 826, 859-62 ["There was no indication in defendant's request
to speak to [the officer] that defendant wished to discuss only
routine matters related to his incarceration."];
P v. Davis (2009) 46 C4 539, 597 [defendant phoned the
investigating officer and said, "I fucked up big time" and asked
to be placed in protective custody; said the court, "Defendant's
comments during that telephone conversation with [the officer]
indicated a willingness to waive his previously asserted right to
counsel and to make a statement."]. OTHER: US
v. Palega (8C 2009) 556 F3 709, 715 ["Palega
requested to speak to [the officer] [and said] he had now decided
to waive [his Miranda rights]."]. ALSO SEE:
P v. Tully (2012) 54 C4 952, 985.

[20] CAL: P v. Anthony (2018) 32
CA5 1102, 1125 [the officers "never asked him" what he wanted to
talk about].

[21] USSC: Oregon v.
Bradshaw (1983) 462 US 1039, 1044 ["'initiation' of a
conversation by a defendant" does not also constitute "a waiver of
a previously invoked right to counsel."]; Edwards
v. Arizona (1981) 451 US 477, 486, fn.9 [after a
suspect reinitiates, "the question would be whether a valid waiver
of the right to counsel and the right to silence had occurred"].
CAL: In re Z.A. (2012) 207 CA4 1401, 1418 ["the
People fail to present any argument on appeal that after making
this statement, Z.A. waived her previously invoked right to remain
silent"]; P v. Waidla (2000) 22 C4 690, 728 ["the
police may commence interrogation [of a suspect who had
reinitiated] if he validly waives his Miranda rights"].
NOTE: Although this requirement may be satisfied if the
suspect had waived his rights before he invoked, and the waiver
was "reasonably contemporaneous" with the start of the interview
he initiated (see Wyrick v. Fields (1982) 459
US 42, 47), it is better to seek an express waiver because it
tends to demonstrate that the suspect had, in fact, changed his
mind about talking with officers. See P v.
Bradford (1997) 14 C4 1005, 1036 ["While it is not clear
that Miranda warnings are always required to find a knowing
and intelligent waiver of the right to counsel, their absence
under the circumstances of this case [questioning after an
invocation] weakens the claim that the defendant made such a
waiver."].

[22] USSC:
Maryland v. Shatzer (2010) 559 US 98, 109 [the 14-day
waiting period "provides plenty of time for the suspect to get
reacclimated to his normal life, to consult with friends and
counsel, and to shake off any residual coercive effects of his
prior custody"]. OTHER: US v. Guzman (1C 2010) 603
F3 99, 106 ["In this case, Guzman was released on bail for about
four months between the time that he originally invoked his right
to counsel and the ATF agents' subsequent attempt to question him.
This far exceeds the time period required by Shatzer and
thus its break-in-custody exception to Edwards applies."].

[23] NOTE: In the
Shatzer Court's most dubious ruling, it concluded that a
prison inmate—and presumably an arrestee—who invokes his right to
counsel and is then released from Miranda custody, will
suffer from certain unspecified "coercive" and "lingering" effects
that make it necessary to protect him against being asked if he
had changed his mind. Here is what the Court said: "[When] a
suspect has been released from his pretrial custody and has
returned to his normal life for some time before the later
attempted interrogation, there is little reason to think that his
change of heart regarding interrogation without counsel has been
coerced." At p. 107. "The only logical endpoint of
Edwards disability is termination of Miranda custody
and any of its lingering effects." At p. 109. Emphasis added.

[24] QUOTE FROM:
Maryland v. Shatzer (2010) 559 US 98, 106.
ALSO SEE: Howes v. Fields (2012) 565 US 499, 511 [in
the "paradigmatic Miranda situation," a suspect is arrested
and "whisked to a police station for questioning"; this
"represents a sharp and ominous change, and the shock may give
rise to coercive pressures"].

[25] USSC:
Arizona v. Roberson (1988) 486 U.S. 675, 684 [there is no
reason to assume that a suspect's state of mind is in any way
investigation-specific"]; McNeil v. Wisconsin (1991) 501
U.S. 171, 177 ["his prior invocation of the offense specific Sixth
Amendment right with regard to the West Allis burglary was also an
invocation of the non-offense-specific
Miranda-Edwards right."]. CAL:
P v. DeLeon (1994) 22 CA4 1265, 1270 ["questioning on
another crime is prohibited unless counsel is present"];
P v. Avila (1999) 75 CA4 416, 421 [Miranda
invocations "prohibit custodial interrogation concerning all
investigations, making an invocation of a suspect's
Miranda rights non-offense specific"].

[26] QUOTE FROM:
Arizona v. Roberson (1988) 486 US 675, 683. CAL:
P v. Storm (2002) 28 C4 1007. NOTE: In his
dissenting opinion in Roberson, Justice Kennedy rejected
this idea, observing that a suspect "will want the opportunity,
when he learns of the separate investigations, to decide whether
he wishes to speak to the authorities in a particular
investigation with or without representation." At p. 692.

[27] USSC: Missouri v.
Seibert (2004) 542 US 600., 611, fn.2.

[28] CAL:
P v. Superior Court (Corbett) (2017) 8 CA5 670, 681 [Trial
court: Corbett "kept asserting his rights and they just kept on
talking to him. And my feeling was at some point this man, in
those conditions, on that date, probably did not think too much of
his constitutional rights anymore."]; P v.
Neal (2003) 31 C4 63, 81-82 [the circumstance "that weighs
most heavily against the voluntariness" of defendant's statement
was that the officer "intentionally continued interrogation in
deliberate violation of Miranda in spite of defendant's
repeated invocation"]; P v. Vasila (1995) 38
CA4 865, 875 ["Here, defendant's invocation was ignored; he
indicated he was fatigued to the point that he did not trust his
own judgment"]; P v. Montano (1991) 226 CA3
914, 932-37; P v. Hinds (1984) 154 CA3 222,
238-39. 9th CIR: Cooper v. Dupnik (9C
1992) 963 F2 1220, 1243 ["With his requests to see a lawyer
disregarded, Cooper was a prisoner in a totalitarian nightmare,
where the police no longer obeyed the Constitution, but instead
following their own judgment, treating suspects according to their
whims."]; Henry v. Kernan (9C 1999) 197 F3
1021, 1026-1030; Gavin v. Farmon (9C 2001)
258 F3 951, 954.

[29] CASE REFERRED TO:
P v. Case (2018) 5 C5 1, 25. CAL: P v.
Depriest (2007) 42 C4 1, 35 [court rejects the argument
that "continued interrogation" after suspect invoked "compels a
finding of official coercion"]; P v.
Coffman (2004) 34 C4 1, 58 ["That [the officer] repeatedly
ignored Marlow's requests for an attorney does give rise to
concern, but—given Marlow's maturity and criminal experience—it
was unlikely Marlow's will was thereby overborne."]; P v.
Demetrulias (2006) 39 C4 1, 30 ["the deliberateness of a
[Miranda] violation did not alter the balance struck in
Harris and other cases between deterring police misconduct
and exposing defendants who commit perjury at trial"]; P
v. Jablonski (2006) 37 C4 774, 815-16; P
v. Peevy (1998) 17 C4 1184, 1204-5; P
v. Storm (2002) 28 C4 1007, 1036-36; P
v. Guerra (2006) 37 C4 1067, 1095-97.
9th CIR: Pollard v. Galaza (9C 2002)
290 F3 1030, 1034-36.