Attorneys and lower court judges who expected some clear guidance as to when a suspect has invoked his right to counsel will have to wait even longer.
The Wisconsin Supreme Court on Feb. 7 divided on whether an “anticipatory” invocation of Miranda is effective, with Justice Annette Kingsland Ziegler not participating in the case.
Two detectives in Washington County, Rindt and Clausing, approached Scott M. Hambly outside his apartment, and attempted to speak with him without taking him into custody.
When Hambly refused to speak to them, they arrested him. On the way to the squad car, Hambly stated that he wanted to speak to an attorney. Rindt told him that he could after they got to the jail.
While in the car, Hambly told Rindt hat he did not understand why he was under arrest, and Rindt responded that Hambly had sold cocaine to an informant on three occasions.
Hambly stated that he did not understand and wanted to know what his options were. Rindt then read Hambly his Miranda warnings.
Hambly said he wanted to speak with Rindt about the transactions, and Rindt removed the handucuffs. Hambly then admitted that he sold cocaine to the informant, but would not cooperate with the police.
The State charged Hambly with three counts of delivery of cocaine, and he moved to suppress his statements.
Circuit Court Judge Patrick J. Faragher denied the motion, and the Court of Appeals affirmed. The Supreme Court accepted review, but also affirmed.
The case produced three opinions, two of which were joined by three justices.
The lead opinion was written by Chief Justice Shirley S. Abrahamson, and was joined by Justices Ann Walsh Bradley and N. Patrick Crooks.
The second was written by Justice Patience Drake Roggensack, and joined by Justices David Prosser and Louis B. Butler, Jr. Justice Butler wrote a separate opinion.
The issue dividing the two camps was anticipatory invocation of the right to counsel. The latter group concluded that a suspect may effectively invoke the right to counsel any time a suspect is in custody, even before interrogation is imminent or impending.
The former group declined to make a definitive holding, concluding that, in this case, Hambly invoked his right to counsel under either standard, because interrogation was impending.
The justices in the lead opinion found that Detective Rindt made it clear that he intended to question Hambly: “The defendant had no reason to believe that Rindt’s eagerness to question him dissipated once Rindt took him into custody.”
The lead opinion then addressed whether Rindt’s statement to Hambly after he invoked his right to counsel constituted interrogation, and concluded that it did not. The court found that Rindt did not initiate questioning, but merely responded to Hambly’s statement that he did not understand why he was under arrest.
The court concluded, “After the defendant invoked his Fifth Amendment Miranda right to counsel, the detective did not make any provocative statements about the arrest or the crime. Rather, the defendant began an exchange with Rindt with a comment to which the detective made a straightforward response. Under the totality of the circumstances in the present case the defendant’s comment evinced a willingness and a desire for a generalized discussion.”
Accordingly, after concluding that Hambly voluntarily waived counsel, the justices in the lead opinion affirmed the denial of Hambly’s suppression motion.
The justices in the concurrence opted instead for a bright-line rule that any time a suspect is in custody, and makes an unequivocal request for a lawyer, the invocation of counsel is valid.
Justice Roggensack wrote, “A test that the lead opinion suggests blurs the bright-line rule that Miranda provides. In addition, that test will be difficult to apply, thereby generating occasions when a suspect who is in custody and unequivocally asks for a lawyer will be denied that assistance by law enforcement who may rightly believe that questioning is not ‘imminent or impending.’”
“In my view, the conditions the lead opinion adds onto the way in which Miranda chose to protect the Fifth Amendment’s right to remain silent provide no benefit for the State, for suspects in custody or for law enforcement. They simply add uncertainty to what the Supreme Court expected would be clear.”
Justice Butler wrote a separate concurrence, joining the main concurrence, save for a brief discussion of Escobedo v. Illinois, 378 U.S. 478 (1964), in that opinion.
Although this case was expected to produce certainty about the effectiveness of anticipatory invocation of the right to counsel, the issue remains as uncertain as ever.
In arguing suppression motions, counsel will have to be prepared to address both possible standards: assume the invocation of counsel is valid solely because the suspect was in custody; and examine whether the defendant was facing imminent interrogation when he invoked counsel.
Addressing both possible rules may take longer than if the court had reached a clear decision; however, in the long run, time will be saved. When appellate courts review such cases, at least there will not be any need for remand to the circuit court to make factual findings whether or not interrogation was impending.
Law enforcement officers should read the decision as if the Roggensack opinion is the majority opinion. Of the three justices who considered whether an anticipatory invocation of counsel is effective, all three agreed it was.
Thus, it would only take one more justice out of four to agree, in a case where the issue was squarely presented, and the case could not be decided on narrower grounds, as in this case.
In addition, such an assumption should not change current law enforcement practices. In State v. Collins, 122 Wis.2d 320, 363 N.W.2d 229 (Ct.App.1984), the Court of Appeals suggested that a suspect may effectively invoke his Miranda rights at any time he is in custody.
Given the decision in Collins, law enforcement should have already been treating anticipatory invocations of the right to counsel as effective. If they were not, the opinion of the three justices who did address the issue should be a strong incentive to do so.