Virginia Police Legal Bulletin
Volume 5, Number 1
A Publication of the Virginia Police Legal Advisors Committee
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Silence Does Not Invoke the
Right to Remain Silent:
by Jack E. Call
Although Miranda v. Arizona is nearly always mentioned in a discussion of the most controversial cases decided by the Supreme Court, the Court has never shown it a great deal of respect. While Miranda requires that a suspect be advised of at least four right before being interrogated in custody, the Court does not require that those rights be articulated in an exact form, so long as they convey to the suspect the essence of the rights. If the suspect indicates that he does not want to answer any questions, the interrogation must cease, but the police may approach the suspect a couple of hours later, advise him of his rights again, and question him about a different offense (unless the suspect invokes his right to remain silent again).
However, if the suspect invokes the right to consult an attorney, the Edwards Rule arises, requiring that interrogation must cease until an attorney is present, unless the suspect himself initiates a discussion (and voluntarily waives his rights). In order to invoke the right to counsel, the suspect must make a clear, unambiguous request for a lawyer, he must request the assistance of a lawyer (and not a probation officer), and the request must be made during interrogation (and not during a bail hearing). What’s more, the Miranda warnings need not be given at all if there is an important public safety concern at stake.
When the police conduct a search that violates the Fourth Amendment, the usual result is not only for the evidence seized during the search to be excluded from introduction to prove the defendant’s guilt at trial, but also for any other evidence located as a result of using the unconstitutionally-obtained evidence to be excluded at trial, as well. However, this fruit of the poisonous tree doctrine is seldom applied to “mere” Miranda violations. Thus, the Supreme Court has held that when a statement obtained from the defendant in violation of Miranda led to the discovery of a witness against the defendant that they probably would not have identified otherwise, the witness may nevertheless testify at the defendant’s trial. Similarly, if the defendant is interrogated in violation of Miranda, makes an incriminating statement, is advised of his rights shortly thereafter, and makes another incriminating statement, the latter statement is admissible at the defendant’s trial. And lastly, if the police obtain a physical piece of evidence, such as an illegally-possessed handgun, as a result of an unmirandized statement, the physical evidence is also admissible at trial.
The Supreme Court has never expressly overturned Miranda, even when presented with the opportunity to do so. In 2000, the Court declined to overrule Miranda, but it appeared to do so less out of respect for Miranda than from a feeling that Miranda has “become embedded in routine police practice to the point where the warnings have become part of our national culture.”
On June 1, 2010, a closely divided (5-4) Court handed down another decision, Berghuis v. Thompkins, that reflects the Court’s continued lack of enthusiasm for Miranda. The case began with a shooting that killed a young man outside a shopping mall in Southfield, Michigan. Thompkins, a suspect in the killing, fled to Ohio where he was arrested about a year later. Two Southfield police officers traveled to Ohio to interrogate Thompkins.
The interrogation took place in a small room and was conducted in the afternoon, lasting about three hours. The officers gave Thompkins a sheet of paper that set forth his rights. In addition to the four usual Miranda warnings, the paper included a fifth right – “You have the right to decide at any time before or during questioning to use your right to remain silent and your right to talk with a lawyer while you are being questioned.” One of the officers testified that Thompkins was asked to read the fifth right out loud as a means of insuring that Thompkins could read.
After Thompkins read the fifth right aloud, one of the officers, Detective Helgert, read the other four rights out loud and asked Thompkins to sign the form to indicate that he understood his rights. Thompkins declined to sign the form. Helgert later testified at a suppression hearing that Thompkins indicated orally that he understood his rights, but Helgert testified at trial that “I don’t know that I orally asked him” whether he understood his rights.
For over two and a half hours, the officers asked Thompkins questions, but Thompkins largely said nothing. On a few occasions, he responded to a question by saying “yeah,” “no,” or “I don’t know.” At no time did Thompkins expressly say that he did not want to say anything or that he wanted to consult an attorney.
About two hours and forty-five minutes into the interrogation, Helgert asked Thompkins if he believed in God. Thompkins responded that he did and tears welled up in his eyes. Helgert then asked Thompkins if he prayed to God. When Thompkins replied that he did, Helgert asked him if he had prayed that God would forgive him for shooting the victim. Thompkins responded that he had. It was the admissibility at trial of this answer that was at issue in the case.
The first issue raised by Thompkins was that by not answering questions for over two hours, he had invoked his right to remain silent. The Court resolved this issue by holding that in order to invoke the right to remain silent, a suspect must make a clear, unequivocal assertion of that right. In coming to this conclusion, the Court placed great reliance on Davis v. U.S., which held that a suspect must make a clear, unambiguous request for an attorney in order to invoke the right to counsel (and thereby cause the Edwards Rule to come into play).
The primary advantage that the majority saw in establishing a requirement for a clear, unambiguous request to remain silent is the same advantage it identified in Davis for the rule that a suspect must make a clear, unambiguous request for counsel. “If an ambiguous act, omission, or statement could require police to end the interrogation, police would be required to make difficult decisions about an accused’s unclear intent and face the consequence of suppression ‘if they guess wrong.’” However, in this case (as well as in Davis), the Court fails to explain why making a judgment about whether a suspect has made a clear, unambiguous request to remain silent (or to consult counsel) is any less difficult than making a judgment about whether the suspect has made an ambiguous request. (My own experience with students is that they often find it difficult to determine whether a suspect has made a clear, unambiguous request for counsel).
The second issue raised by Thompkins was that he did not waive his right to remain silent. Even if the right to remain silent is not invoked by a suspect, it still must be waived in order for a statement obtained by the police to be admissible. Miranda indicated that “a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.” The waiver must be made voluntarily and knowingly (“with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it”).
Although the language just quoted from Miranda could easily be interpreted to mean that a waiver of the right to remain silent must be made expressly by a suspect, the Court rejected that conclusion in North Carolina v. Butler. In that case, the Court held that a “defendant’s silence, coupled with an understanding of his rights and course of conduct indicating waiver” would be sufficient to establish an implied waiver of all the Miranda rights, including the right to remain silent.
Butler was a very important case because it established that a suspect did not have to expressly waive his rights. Waiver could be implied from a suspect’s course of conduct. Once this rule was established, resolution of the waiver issue in Butler was not difficult. Butler had told the police when they advised him of his rights, “I will talk to you but I am not signing any form.” Apparently, the defendant had not even bothered to argue that this statement was not an implied waiver of his rights, because the Court indicated that “[n]either the state court nor the respondent has offered any reason why there must be a negative answer to [the question of whether the defendant waived his rights] in the absence of an express waiver.”
The facts in Berghuis, however, clearly present a more difficult question as to whether the defendant impliedly waived his rights. As indicated above, the issue was whether Thompkins’ silence and conduct, combined with an understanding of his rights, indicated that he had waived his rights. The Court, in fact, re-stated this rule in such a way as to suggest that if a suspect does not assert the right to remain silent and then answers questions from police interrogators, it should usually be presumed that the suspect waived his rights. “[T]he law can presume that an individual who, with a full understanding of his or her rights, acts in a manner inconsistent with their exercise has made a deliberate choice to relinquish the protection those rights afford.”
The Court found that “Thompkins’s answer to Detective Helgert’s question about whether Thompkins prayed to God for forgiveness for shooting the victim is ‘a course of conduct indicating waiver’ of the right to remain silent.” It also concluded that there was no evidence of coercion in obtaining the waiver. The Court noted that Thompkins sat in a straight-backed chair for three hours, but indicated that no prior case established that an interrogation of this length alone is sufficient to establish coercion. To the contrary, “even where interrogations of greater duration were held to be improper, they were accompanied, as this one was not, by other facts indicating coercion, such as an incapacitated and sedated suspect, sleep and food deprivation, and threats.” None of those factors were present in this case.
Perhaps the most notable aspect of the Court’s analysis of the waiver issue is its conclusion that Thompkins understood his rights. The Court bases this conclusion on several factors: 1) Thompkins was given a written copy of his rights; 2) Detective Helgert determined that Thompkins could read and understand English by having him read the fifth right on the list out loud; 3) Helgert gave Thompkins time to read the rights after he gave him the written copy of them; and 4) Helgert also read all of the rights aloud to Thompkins. What is significant about this analysis is that the Court did not require that Thompkins do or say anything to affirmatively demonstrate that he understood his rights.
Berghuis is an important Miranda case. It establishes that in order to assert the right to remain silent, a suspect must make a clear, unambiguous statement that he does not want to speak with the police. Simply remaining silent does not constitute an assertion of the right to remain silent.
If he fails to make such a statement, he may impliedly waive his rights, so long as he understands them, by engaging in a course of conduct that is inconsistent with the assertion of his rights. In order to demonstrate that a suspect understands his rights, it will probably be sufficient if the police simply inform the suspect of his rights in such a way that a reasonable person could be presumed to understand them as a result.
 384 U.S. 136 (1966).
 See, for example, Duckworth v. Egan, 492 U.S. 195 (1989) and Florida v. Powell, ____ U.S. ____ (2010).
 Michigan v. Mosley, 423 U.S. 96 (1975).
 Edwards v. Arizona 451 U.S. 477 (1981).
 Davis v. U.S., 512 U.S. 452 (1994).
 Fare v. Michael C., 442 U.S. 707 (1979).
 McNeil v. Wisconsin, 501 U.S. 171 (1991).
 New York v. Quarles, 467 U.S. 649 (1984).
 Michigan v. Tucker, 417 U.S. 473 (1974).
 Oregon v. Elstad, 470 U.S. 298 (1985).
 U.S. v. Patane, 542 U.S. 630 (2004).
 2010 U.S. Lexis 4379, ___ U.S. ___ (2010).
 Moran v. Burbine, 475 U.S. 412 (1986).
 441 U.S. 369 (1979).