FEATURED IN TRAINING
On March 17, 2010, a judge in Lake County, Ill., ruled that a videotaped murder confession wouldn’t be admitted into evidence in the trial of a man who was arrested for, and who admitted to, stabbing his wife to death outside a hotel on July 5, 2008. Defense attorneys for the man, charged with first degree murder, asserted at a pretrial hearing that police continued to question him after he advised them he wanted a lawyer. The videotaped confession is purported to show that the man asked for a lawyer, not once, but 60 times.
Although this is an extreme case, the question often arises as to when police are permitted to question suspects after they invoke their right under Miranda to speak with an attorney. On Feb. 24, 2010, the U.S. Supreme Court instituted a strict bright-line rule regarding this issue.
Maryland v. Shatzer
In Maryland v. Shatzer,  Michael Shatzer, who was incarcerated in a Maryland prison on a child sex abuse offense, was questioned by a detective who was investigating a separate allegation of sex abuse—this one involving Shatzer’s own son. The detective gave Shatzer his Miranda warnings and Shatzer refused to talk without his attorney being present. Shatzer went back to the general prison population and the investigation was closed.
Two and a half years later, after receiving more specific allegations of sex abuse of Shatzer’s son, a different detective interviewed Shatzer, who was still serving time in prison. The second detective also read Shatzer his Miranda warnings and this time, Shatzer agreed to talk without an attorney. Shatzer never referred to his prior refusal to answer questions without an attorney.
After agreeing to take a polygraph test, and failing the test, Shatzer incriminated himself in the crime but immediately thereafter, requested an attorney. The detective promptly terminated the interrogation.
As a result of that interrogation, Shatzer was charged with several crimes. He moved to suppress his confession, arguing that the Edwards  rule applied and, as such, his confession was inadmissible. The trial court denied his motion. After a bench trial, Shatzer was found guilty. Shatzer appealed and the Maryland Court of Appeals reversed and remanded the case back to the trial court. The matter was then taken before the U.S. Supreme Court.
Miranda provides that once a suspect requests an attorney, the interrogation must cease until the attorney is present. However, a suspect is always free to waive his Miranda rights. Once the suspect waives his rights, the state has the burden to demonstrate that the waiver is “knowing, intelligent and voluntary.”
Several years later, in Edwards v. Arizona, the Supreme Court imposed a second layer of protection in those cases where a suspect, who was previously provided Miranda warnings, later waived his rights in a subsequent interrogation. Once the suspect invokes his rights, police were not permitted to question the suspect again, except in very limited circumstances. This added protection is often referred to as the Edwards rule. The intent was to prevent investigators from pressuring a suspect who was in prolonged custody into talking to them after he had previously asserted his Miranda rights.
Of course, this rule made sense for suspects who were in jail, but it frustrated the investigative efforts of law enforcement regarding those suspects who were set free. Indeed, the police community has been taught to never re-question a freed suspect, even if it was conducted by a different law enforcement agency, or for entirely different crimes. “In a country that harbors a large number of repeat offenders, this consequence is disastrous.”
The Supreme Court sought a more sensible rule. According to the court, 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’s little reason to think that his change of heart regarding interrogation without counsel has been coerced. He has no longer been isolated. He has likely been able to seek advice from an attorney, family members and friends.”
In Shatzer’s case, after the initial interrogation where he invoked his Miranda rights, he was released to the general prison population (which was Shatzer’s “normal life”) and it wasn’t until two and a half years later that he was asked to be interrogated again. According to the court, this was surely enough time to represent an adequate break in custody so as to avoid the coercive affect of prolonged custody at issue in Edwards.
No doubt, this was an easy case. However, because future cases would present different timeframes, the court took it upon itself to specify a period of time that would constitute an adequate break in custody for purposes of re-issuing Miranda so police officers would not have to guess. That period is 14 days. “Confessions obtained after a two-week break in custody and a waiver of Miranda rights are most unlikely to be compelled. …”
Florida v. Powell
In another case regarding Miranda, the U.S. Supreme Court held that a modified form of the Miranda warnings was lawful. In Florida v. Powell, a suspect was arrested in Tampa, Fla. After being transported to the police station, he was read the following:
“You have the right to remain silent. If you give up the right to remain silent, anything you say can be used against you in court. You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview.”
The suspect acknowledged that he had been informed of his rights, understood them and that he was willing to talk to the police. He signed the waiver and confessed to the crime. He was subsequently charged.
However, he moved to suppress his confession arguing that the Miranda warnings were deficient as they didn’t inform him that he was entitled to the presence of an attorney during questioning. The trial court denied the motion and a jury convicted the suspect. On appeal, the Florida appellate court held that the trial court should have suppressed the confession because the warnings did not adequately inform the suspect of his right to having an attorney present throughout the interrogation. The Florida Supreme Court agreed with the appellate court.
The U.S. Supreme Court reversed the Florida Supreme Court. It noted that the issue was whether the warnings the suspect received complied with the third warning in Miranda that “he has the right to the presence of an attorney” during questioning.
The Supreme Court has never dictated the precise words necessary in providing the Miranda warnings. The only requirement is that the words used in the warnings convey to a suspect his rights as required by Miranda. 
The court ruled that although the warnings were “not the clearest possible formulation of Miranda’s right-to-counsel advisement” they “communicated the same essential message.”
The Bottom Line
The Supreme Court has developed a bright-line rule regarding when police officers can re-question suspects after they’ve invoked their rights under Miranda. Law enforcement officers are permitted to re-interrogate suspects who previously exercised their Miranda rights, provided there’s been a 14-day break from custody. This is an area where it’s advisable to get clear direction from legal counsel to prevent problems with your interview.
The Supreme Court also allows police officers to recite and/or provide modified versions of the Miranda warnings, as long as the warnings convey the same essential elements. Surely, this decision is useful to those officers who recite the warnings from memory and sometimes find themselves adlibbing the warnings. However, if the warnings are recited from a pre-printed form, there’s no real advantage to altering the words. Instead, I highly recommend that the verbiage from Miranda be used on the pre-printed forms to minimize the risks that the warnings are called into question.
Laura L. Scarry is a partner in the law firm of DeAno & Scarry with offices located in Wheaton and Chicago, Ill. She represents law enforcement officials against claims of civil rights violations in state and federal courts. Scarry was a police officer with the Lake Forest (Ill.) Police Department from 1986–1992. Contact her at firstname.lastname@example.org.
1. Miranda v. Arizona , 384 U.S. 436 (1966).
2. 130 S.Ct. 1213 (Feb. 24, 2010).
3. Edwards v. Arizona , 451 U.S. 477 (1981).
4. Shatzer , at p.7.
5. Id. , at p. 9-10.
6. Id. , at p. 9.
7. Florida v. Powell , 130 S.Ct. 1195 (Feb. 23, 2010).
8. Id . at p. 8.
9. Id . at p. 10.
Do not construe this column as legal advice. Each police officer should consult with an attorney in their jurisdiction for legal advice on any specific issue.